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National Pollutant Discharge Elimination System--Regulations Addressing Cooling Water Intake Structures for New Facilities
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 10, 2000 (Volume 65, Number 155)]
[Proposed Rules]
[Page 49059-49121]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au00-30]
[[Page 49059]]
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Part II
Environmental Protection Agency
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40 CFR Parts 9, 122, 123, et al.
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National Pollutant Discharge Elimination System; Cooling Water Intake
Structures for New Facilities; Proposed Rules
[[Page 49060]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 125
[FRL-6843-5]
RIN 2040-AC23
National Pollutant Discharge Elimination System--Regulations
Addressing Cooling Water Intake Structures for New Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today's proposed rule would implement section 316(b) of the
Clean Water Act (CWA) for new facilities that use water withdrawn from
rivers, streams, lakes, reservoirs, estuaries, oceans or other waters
of the U.S. for cooling water purposes. The proposed rule would
establish national requirements applicable to the location, design,
construction, and capacity of cooling water intake structures at new
facilities. The proposed national requirements would minimize the
adverse environmental impact associated with the use of these
structures.
Today's proposed rule would establish location, design,
construction, and capacity requirements that reflect the best
technology available for minimizing adverse environmental impact from
the cooling water intake structure based on the placement of the intake
structure and the water body type. The Environmental Protection Agency
(EPA) proposes to group surface water into four categories--freshwater
rivers and streams, lakes and reservoirs, estuaries and tidal rivers,
and oceans--and to establish requirements for cooling water intake
structures located in each water body type. In general, the closer the
intake structure is to areas that are most sensitive or biologically
productive, the more stringent the requirements proposed to minimize
adverse environmental impact. Under this proposal, EPA would set
performance requirements and would not mandate the use of specific
technologies.
EPA expects that this proposed regulation would reduce impingement
and entrainment at new facilities over the next 20 years. Today's
proposed rule would establish requirements that would help preserve
ecosystems in close proximity to cooling water intake structures at new
facilities. EPA has considered the potential benefits of the proposal
and the preamble discusses them in qualitative terms. Expected benefits
include a decrease in expected mortality or injury to aquatic organisms
that would otherwise be subject to entrainment into cooling water
systems or impingement against screens or other devices at the entrance
of cooling water intake structures. The proposed regulatory
requirements also could reduce adverse impact on threatened and
endangered species.
DATES: Comments on this proposed rule and Information Collection
Request (ICR) must be received or postmarked on or before midnight
October 10, 2000.
ADDRESSES: Public comments regarding this proposed rule should be
submitted by mail to: Cooling Water Intake Structure (New Facilities)
Proposed Rule Comment Clerk--W-00-03, Water Docket, Mail Code 4101,
EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC
20460. Comments delivered in person (including overnight mail) should
be submitted to the Cooling Water Intake Structure (New Facilities)
Proposed Rule Comment Clerk--W-00-03, Water Docket, Room EB 57, 401 M
Street, SW., Washington, DC 20460. You also may submit comments
electronically to ow-docket@epa.gov. Please submit any references cited
in your comments. Please submit an original and three copies of your
written comments and enclosures. For additional information on how to
submit comments, see ``SUPPLEMENTARY INFORMATION, How May I Submit
Comments?''
EPA has prepared an ICR for this proposed rule (EPA ICR number
1973.01). For further information or a copy of the ICR contact Sandy
Farmer by phone at (202)260-2740, e-mail at
farmer.sandy@epamail.epa.gov or download off the internet at http://
www.epa.gov/icr. Send comments on the Agency's need for this
information, the accuracy of the burden estimates, and any suggested
methods for minimizing respondent burden (including the use of
automated collection techniques) to the following addresses. Please
refer to EPA ICR No. 1973.01 in any correspondence.
Ms. Sandy Farmer, U.S. Environmental Protection Agency, OP Regulatory
Information Division (2137), 401 M Street, SW., Washington, DC 20460
and
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for EPA, 725 17th Street, NW.,
Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: For additional technical information
contact Deborah G. Nagle at (202) 260-2656 or James T. Morgan at (202)
260-6015. For additional economic information contact Lynne Tudor at
(202) 260-5834. The e-mail address for the above contacts is
``rule.316b@epa.gov.''
SUPPLEMENTARY INFORMATION:
What Entities Are Potentially Regulated by This Action?
This proposed rule would apply to new facilities that use cooling
water intake structures to withdraw water from waters of the U.S. and
that have or require a National Pollutant Discharge Elimination System
(NPDES) permit issued under section 402 of the CWA. New facilities
subject to this regulation would include those with a design intake
flow of greater than two (2) million gallons per day (MGD). If a new
facility meets these conditions, it is subject to today's proposed
regulations. If a new facility has or requires an NPDES permit but does
not meet the 2 MGD intake flow threshold, it would be subject to permit
conditions implementing section 316(b) on a case-by-case basis, using
best professional judgment. This proposal defines the term ``cooling
water intake structure'' to mean the total physical structure and any
associated constructed waterways used to withdraw water from waters of
the U.S., provided that at least twenty-five (25) percent of the water
withdrawn is used for cooling purposes. Generally, facilities that meet
these criteria fall into two major groups: new steam electric
generating facilities and new manufacturing facilities.
The following table lists the types of entities that are
potentially subject to this proposed rule. This table is not intended
to be exhaustive, but rather provides a guide for readers regarding
entities likely to be regulated by this action. This table lists the
types of entities that EPA is now aware that could potentially be
regulated by this action; other types of entities not listed in the
table could also be regulated. To determine whether your facility would
be regulated by this action, you should carefully examine the
applicability criteria proposed at Sec. 125.81 of the rule. If you have
questions regarding the applicability of this action to a particular
entity, consult one of the persons listed for technical information in
the preceding FOR FURTHER INFORMATION CONTACT section.
[[Page 49061]]
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Standard Industrial
Category Examples of regulated entities Classification Codes North American Industry Code (NAIC)
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Federal, State and local government.. Operators of steam electric generating 4911 and 493................. 221111, 221112, 221113, 221119, 221121,
point source dischargers that employ 221122, 221111, 221112, 221113, 221119,
cooling water intake structures. 221121, 221122.
Industry............................. Operators of industrial point source See below.................... See below.
dischargers that employ cooling water
intake structures.
Steam electric generating.............. 4911 and 493................. 221111, 221112, 221113, 221119, 221121,
221122, 221111, 221112, 221113, 221119,
221121, 221122.
Agricultural production................ 0133......................... 111991 11193.
Metal mining........................... 1011......................... 21221.
Oil and gas extraction................. 1311, 1321................... 211111, 211112.
Mining and quarrying of nonmetallic 1474......................... 212391.
minerals.
Food and kindred products.............. 2046, 2061, 2062, 2063, 2075, 311221, 311311, 311312, 311313, 311222,
2085. 311225, 31214.
Tobacco products....................... 2141......................... 312229, 31221.
Textile mill products.................. 2211......................... 31321.
Lumber and wood products, except 2415, 2421, 2436, 2493....... 321912, 321113, 321918, 321999, 321212,
furniture. 321219.
Paper and allied products.............. 2611, 2621, 2631, 2676....... 3221, 322121, 32213, 322121, 322122,
32213, 322291.
Chemical and allied products........... 28 (except 2895, 2893, 2851, 325 (except 325182, 32591, 32551, 32532).
and 2879).
Petroleum refining and related 2911, 2999................... 32411, 324199.
industries.
Rubber and miscellaneous plastics 3011, 3069................... 326211, 31332, 326192, 326299.
products.
Stone, clay, glass, and concrete 3241......................... 32731.
products.
Primary metal industries............... 3312, 3313, 3315, 3316, 3317, 324199, 331111, 331112, 331492, 331222,
3334, 3339, 3353, 3363, 332618, 331221, 22121, 331312, 331419,
3365, 3366. 331315, 331521, 331524, 331525.
Fabricated metal products, except 3421, 3499................... 332211, 337215, 332117, 332439, 33251,
machinery and transportation equipment. 332919, 339914, 332999.
Industrial and commercial machinery and 3523, 3531................... 333111, 332323, 332212, 333922, 22651,
computer equipment. 333923, 33312.
Transportation equipment............... 3724, 3743, 3764............. 336412, 333911, 33651, 336416.
Measuring, analyzing, and controlling 3861......................... 333315, 325992.
instruments; photographic, medical,
and optical goods; watches and clocks.
Electric, gas, and sanitary services... 4911, 4931, 4939, 4961....... 221111, 221112, 221113, 221119, 221121,
221122, 22121, 22133.
Educational services................... 8221......................... 61131.
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How May I Review the Public Record?
The record (including supporting documentation) for this proposed
rule is filed under docket number W-00-03 (proposed rule). The record
is available for inspection from 9 a.m. to 4 p.m. on Monday through
Friday, excluding legal holidays, at the Water Docket, Room EB 57,
USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access
to docket materials, please call (202)260-3027 to schedule an
appointment during the hours of operation stated above.
How May I Submit Comments?
To ensure that EPA can read, understand, and therefore properly
respond to comments, the Agency requests that you cite, where possible,
the paragraph(s) or sections in the preamble, rule, or supporting
documents to which each comment refers. You should use a separate
paragraph for each issue you discuss.
If you want EPA to acknowledge receipt of your comments, enclose a
self-addressed, stamped envelope. No faxes will be accepted. Electronic
comments must be submitted as a WordPerfect 5.1, 6.1, or 8 format, or
an ASCII file or file avoiding the use of special characters and forms
of encryption. Electronic comments must be identified by the docket
number W-00-03. EPA will accept comments and data on disks in
WordPerfect 5.1, 6.1, or 8 format or in ASCII file format. Electronic
comments on this notice may be filed on-line at many Federal depository
libraries.
Cooling Water Intake Structures: Section 316(b) New Facility Draft
Preamble and Proposed Rule
Table of Contents
I. Legal Authority
II. Purpose and Summary of Proposed Regulation
[[Page 49062]]
A. What Is the Purpose of Today's Proposed Regulation?
B. What Requirements Would Today's Proposed Regulation
Establish?
C. How Does Today's Proposed Regulation Affect New Facilities
Built Before Today's Proposal Is Finalized and Existing Facilities
Subject to Section 316(b)?
III. Legal Background
A. The Clean Water Act
B. What Is Required Under Section 316 of the Clean Water Act?
IV. History
A. Have Prior EPA Regulations Addressed Cooling Water Intake
Structures?
B. How is Section 316(b) of the CWA Being Implemented Now?
V. Scope and Applicability of the Proposed Rule
A. Who Is Covered Under This Proposed Rule?
B. What Is a ``New Facility''?
C. What Is a ``Cooling Water Intake Structure''?
D. Must My Facility Withdraw Water from Waters of the U.S.?
E. Must My Facility Have a Point Source Discharge Subject to an
NPDES Permit?
VI. Data Collection and Overview of Industries Potentially Subject
to Proposed Rule
A. Overview
B. New Steam Electric Generating Facilities
C. New Manufacturing Facilities
VII. Environmental Impact Associated with Cooling Water Intake
Structure
A. Overview
B. What Types of Environmental Impacts Are Caused by Cooling
Water Intake Structures?
C. What Entrainment and Impingement Impacts Caused by Cooling
Water Intake Structures Have Been Documented?
D. What Constitutes Adverse Environmental Impact Under This
Proposed Rule?
VIII. Best Technology Available for Minimizing Adverse Environmental
Impact at New Facilities
A. What Is the Best Technology Available for Minimizing Adverse
Environmental Impact at New Facilities?
1. What Are the Proposed and Alternative Regulatory Frameworks
for Today's Proposed Rule?
2. Location
3. Flow and Volume
4. Velocity
5. Additional Design and Construction Technologies
6. What is the Role of Restoration Measures?
7. Additional and Alternative BTA Requirements
8. Other Approaches Being Considered by EPA
B. What Technologies Can Be Used to Meet the Regulatory
Requirements?
1. Intake Screen Systems
2. Passive Intake Systems (Physical Exclusion Devices)
3. Diversion or Avoidance Systems
4. Fish-Handling Systems and Other Technologies
C. How Is Cost Being Considered in Establishing BTA for New
Facilities?
IX. Implementation
A. What Information Must I Submit to the Director When I Apply
for My New or Reissued NPDES Permit?
1. Source Water Baseline Biological Characterization Data
2. Source Water Physical Data
3. Cooling Water Intake Structure Velocity and Flow Data
4. Data to Show Compliance with the Flow Requirements, Velocity
Requirement, Flow Reduction Requirement, and Additional Design and
Construction Technology Requirement
5. Data to Support A Request for Alternative Requirements
B. How Would the Director Determine the Appropriate Cooling
Water Intake Structure Requirements?
C. What Would I Be Required to Monitor?
D. How Would Compliance Be Determined?
E. What Are the Respective Federal, State, and Tribal Roles?
F. Are Permits for New Facilities Subject to Requirements Under
Other Federal Statutes?
X. Cost/Benefit Analysis
A. Cost
1. Electric Generation Sector
2. Manufacturing Sector
3. Cost Impacts
4. Cost Impacts of Other Alternatives
B. Discussion of Cooling Water Intake Structure Impacts and
Potential Benefits
XI. Administrative Requirements
A. Paperwork Reduction Act
B. Unfunded Mandates Reform Act
C. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
1. Electric Generation Sector
2. Manufacturing Sector
D. Executive Order 12866: Regulatory Planning and Review
E. Executive Order 13132: Federalism
F. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
I. National Technology Transfer and Advancement Act
J. Plain Language Directive
K. Executive Order 13158: Marine Protected Areas
XII. Solicitation of Comments and Data
A. Specific Solicitation of Comment and Data
B. General Solicitation of Comment
I. Legal Authority
Today's proposed rule is issued under the authority of sections
301, 306, 308, 316, 402, and 501 of the Clean Water Act (CWA), 33
U.S.C. 1311, 1316, 1318, 1326, 1342, and 1361. This proposal partially
fulfills the obligations of the U.S. Environmental Protection Agency
(EPA) under a Consent Decree in Cronin v. Browner, United States
District Court, Southern District of New York, No. 93 Civ 0314 (AGS).
II. Purpose and Summary of Proposed Regulation
A. What Is the Purpose of Today's Proposed 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 for minimizing adverse environmental impact. Today's proposal
would define a cooling water intake structure as the total physical
structure and any associated constructed waterways used to withdraw
water from waters of the U.S., provided that at least twenty-five (25)
percent of the water withdrawn is used for cooling purposes. Cooling
water absorbs waste heat rejected from processes employed or from
auxiliary operations on a facility's premises. Single cooling water
intake structures might have multiple intake bays. Today's proposed
rule would establish requirements applicable to the location, design,
construction, and capacity of cooling water intake structures at new
facilities. The proposal seeks to minimize the adverse environmental
impact associated with the use of these structures.
Today's proposed rule partially fulfills EPA's obligation to comply
with a Consent Decree entered in the United States District Court,
Southern District of New York in Cronin v. Browner, No. 93 Civ. 0314
(AGS), a case brought against EPA by a coalition of individuals and
environmental groups. The Consent Decree as entered on October 10,
1995, provided that EPA propose regulations implementing section 316(b)
by July 2, 1999, and take final action with respect to those
regulations by August 13, 2001. EPA later moved to amend the Consent
Decree by bifurcating the rule into two phases--Phase I addressing new
facilities and Phase II addressing existing facilities--and extending
the deadlines for proposal and final action. Plaintiffs opposed EPA's
motion for an extension of the deadlines. On March 27, 2000, the Court
amended the Consent Decree to provide among other things that EPA
propose regulations addressing new facilities on or before July 20,
2000, and propose regulations addressing existing facilities on or
before July 20, 2001. The Court declined
[[Page 49063]]
to specify deadlines for final action with respect to regulations
addressing new and existing facilities, stating that the parties should
attempt to reach an agreement with respect to the deadlines in the
Consent Decree. Today's proposal fulfills EPA's obligation under the
Consent Decree to propose regulations addressing new facilities.
This proposed rule would apply to new facilities that use cooling
water intake structures to withdraw water from waters of the U.S. and
that have or require a National Pollutant Discharge Elimination System
(NPDES) permit issued under section 402 of the CWA. New facilities
subject to this proposed regulation would be those with a design intake
flow of greater than two (2) million gallons per day (MGD).
If a new facility has or requires an NPDES permit and meets the 2
MGD flow threshold, it is subject to today's proposed regulations. The
proposal would define the term ``new facility'' as any building,
structure, facility, or installation that meets the definition of ``new
source'' or ``new discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2),
and (4); commences construction after the effective date of this rule;
and has a new or modified cooling water intake structure that withdraws
cooling water from waters of the U.S.
Today's proposal would add language to EPA's NPDES permitting
regulations at 40 CFR part 125, subpart I that establishes requirements
applicable to cooling water intake structures for new facilities, and
would reserve 40 CFR part 125, subpart J for requirements addressing
existing facilities. Today's proposal also would amend EPA's
regulations at 40 CFR 122.44(b)(3) to require the inclusion in EPA-
issued NPDES permits of requirements applicable to cooling water intake
structures at new facilities, in accordance with part 125, subpart I
and would amend EPA's regulations establishing requirements for
authorized State NPDES programs by reinstating references to 40 CFR
part 125, subparts I and J in 40 CFR 123.25(a)(36). This would have the
effect of mandating that States have legal authority to implement final
regulations addressing cooling water intake structures at new and
existing facilities. Subpart I currently reads in its entirety,
``Criteria Applicable to Cooling Water Intake Structures Under section
316(b) of the Act [Reserved].'' Subpart J currently reads in its
entirety, ``Reserved.'' References to part 125, subparts I and J were
included in Sec. 123.25(a)(36) for many years. Recently, however, EPA's
Amendments to Streamline the National Pollutant Discharge Elimination
System Program Regulations: Round Two deleted the references to
subparts I and J from 40 CFR 123.25(a)(36) along other with references
to reserved subparts. 65 FR 30886, 30910 (May 15, 2000). Today's
proposal would reinsert those references in light of the pending
rulemaking proceedings addressing cooling water structures at new and
existing facilities.
Proposed section 125.80(c) makes clear that nothing in today's
proposal would preclude or deny the authority of States, their
political subdivisions, and interstate agencies under section 510 of
the CWA. States retain authority under section 510 to adopt or enforce
any requirement respecting the control or abatement of pollution that
is more stringent than the minimum requirements established in a final
rule based on this proposal. Section 502(19) of the CWA defines
``pollution'' as including the man-made or man-induced alteration of
the physical and biological integrity of water.
Today's proposed rule would also add proposed regulatory language
at 40 CFR 122.2(q) to require that the information required under
proposed Sec. 125.86 regarding cooling water intake structure
information and requests for alternative requirements under proposed
Sec. 125.85 be submitted at the time of permit application. Finally,
EPA proposes to amend the public notification requirements at 40 CFR
124.10(d)(1) to require notification that a permit applicant is subject
to the cooling water intake structure requirements of part 125 subpart
I.
B. What Requirements Would Today's Proposed Regulation Establish?
At Sec. 125.84(a)-(e), today's proposed rule would establish
national performance requirements for the location, design,
construction, and capacity of cooling water intake structures at new
facilities to minimize adverse environmental impact. Under the proposed
rule, EPA would establish minimum national location, design,
construction, and capacity requirements for minimizing adverse
environmental impact from cooling water intake structures based on the
placement of the intake structure and the water body type. EPA has
grouped surface waters into four categories and is proposing separate
requirements for cooling water intake structures in each category.
These categories are based on the location of a facility's cooling
water intake structure on or within (1) a freshwater river or stream,
(2) a lake or reservoir, (3) an estuary or tidal river, or (4) an
ocean. Proposed Sec. 125.84(f) provides that in certain circumstances
Directors may impose additional site-specific requirements when in
their judgment the national requirements are not sufficient to ensure
that adverse environmental impact will be minimized. Section 125.84(g)
would require the Director to impose any more stringent requirements
needed to ensure attainment of water quality standards. Finally,
Sec. 125.85 would allow any interested person to request that the
Director impose alternative best technology available (BTA)
requirements by demonstrating that compliance with the requirements
would result in compliance costs wholly out of proportion to the costs
EPA considered in establishing the national standards proposed at
Sec. 125.84(a)-(e). The term ``Director'' means the State or Tribal
Director where there is an approved NPDES State or Tribal program and
means the Regional Administrator where EPA administers the NPDES
program in the State. See 40 CFR 122.2.
C. How Does Today's Proposed Regulation Affect New Facilities Built
Before Today's Proposal Is Finalized and Existing Facilities Subject to
Section 316(b)?
In 1977 EPA issued draft guidance for determining the best
technology available to minimize adverse environmental impact from
cooling water intake structures. In the absence of section 316(b)
regulations or final guidance, the 1977 draft guidance has served as
applicable guidance for section 316(b) determinations. 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). Administrative determinations in several permit proceedings
also have served as de facto guidance.
Today, EPA proposes a national framework that would establish
certain minimum requirements for the design, capacity, and construction
of cooling water intake structures for new facilities based on the
location of a cooling water intake structure in four categories of
water bodies. In doing so, the Agency is proposing to revise the
approach adopted in the 1977 draft guidance which was based on the
judgment that ``[t]he decision as to best technology available for
intake design location, construction, and capacity must be made on a
case-by-case basis.'' Other important differences from the 1977 draft
Guidance include today's proposed definition of a ``cooling water
intake structure'' for new facilities. Today's proposal also would
establish a cost test that is different from the
[[Page 49064]]
``wholly disproportionate'' test that has been in use since the 1970s
(see section VIII C).
Although EPA's judgment is that the requirements proposed today
would best implement section 316(b) for new facilities, the Agency is
also inviting comment on a broad array of other alternatives,
including, for example, a framework under which Directors would
continue to evaluate adverse environmental impact and determine the
best technology available for minimizing such impact on a wholly site-
specific basis. Because the Agency is inviting comment on such a broad
range of alternatives for potential promulgation, today's proposal is
not intended as guidance for determining the best technology available
to minimize the adverse environmental impact of cooling water intake
structures at new facilities before the Agency promulgates final
regulations based on today's proposal. In the interim, Directors should
continue to make section 316(b) determinations, which may be more or
less stringent than today's proposal, on a case-by-case basis applying
best professional judgment.
Today's proposal does not apply to existing facilities. Although
EPA has not yet closely examined the costs of technology options at
facilities, the Agency anticipates that existing facilities would have
less flexibility in designing and locating their cooling water intake
structures than new facilities and that existing facilities might incur
higher costs to comply with the proposed requirements than new
facilities would incur. For example, existing facilities might need to
upgrade or modify existing intake structures and cooling water systems
to meet today's proposed requirements, which might impose greater costs
than use of the same technologies at a new facility. Retrofitting
technologies at an existing facility might also require brief shutdown
periods during which the facility would lose both production and
revenues, and certain retrofits could decrease the thermal efficiency
of an electric generating facility. Existing facilities also might have
site limitations, such as lack of undeveloped space, that might make
certain technologies infeasible. The Agency anticipates that at the
time it promulgates final requirements for cooling water intake
structures at new facilities, it will have made substantial progress in
its analyses to support section 316(b) regulations for existing
facilities employing cooling water intake structures. Upon promulgation
of final regulations based on today's proposal, the Agency will address
the extent to which the final new facility regulation and preamble
should serve as guidance for developing section 316(b) requirements for
existing facilities prior to the promulgation of the section 316(b)
regulations for existing facilities.
III. Legal Background
A. The Clean Water Act
The Federal Water Pollution Control Act, also known as the Clean
Water Act (CWA), seeks to ``restore and maintain the chemical,
physical, and biological integrity of the nation's waters.'' 33 U.S.C.
section 1251(a). The CWA establishes a comprehensive regulatory
program, key elements of which are (1) a prohibition on the discharge
of pollutants from point sources to waters of the U.S., except as
authorized by the statute; (2) authority for EPA or authorized States
or Tribes to issue NPDES permits that regulate the discharge of
pollutants; and (3) requirements for EPA to develop effluent
limitations guidelines and standards and for States to develop water
quality standards that are the basis for the pollutant discharge limits
imposed in NPDES permits.
Today's proposed rule implements section 316(b) of the CWA as it
applies to new facilities. 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,
section 316(b) applies to facilities that use a cooling water intake
structure and have a point source discharge that is NPDES-permitted or
requires an NPDES permit. Conditions implementing section 316(b) are
included in NPDES permits and would continue to be included in NPDES
permits under this proposed rule.
Section 301 of the CWA prohibits the discharge of any pollutant by
any person, except in compliance with specified statutory requirements.
These requirements include compliance with technology-based effluent
limitations guidelines and new source performance standards, water
quality standards, NPDES permit requirements, and certain other
requirements.
Section 402 of the CWA provides authority for EPA or an authorized
State or Tribe to issue an NPDES permit to any person discharging any
pollutant from a point source into waters of the U.S. Forty-three
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 through the
imposition of effluent limitations and other permit conditions.
Effluent limitations may be based on promulgated 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 compliance with water quality standards applicable to the
receiving water, more stringent effluent limits based on applicable
water quality standards are imposed. NPDES permits also routinely
include monitoring and reporting requirements, standard conditions, and
special conditions.
Sections 301, 304, and 306 of the CWA require that EPA develop
technology-based effluent 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, the economic
achievability of meeting the level of control, and other factors
identified in section 304 and 306 of the CWA. 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 405-471. Among these, EPA has established effluent
limitations guidelines that apply to most of the industry categories
that use cooling water intake structures (e.g., steam electric power
generation, iron and steel manufacturing, pulp and paper, petroleum
refining, chemical manufacturing).
Section 306 of the CWA requires that EPA establish discharge
standards for new sources. For purposes of section 306, new sources
include any source that commenced construction after the promulgation
of applicable new source performance standards, or after proposal of
applicable standards of performance
[[Page 49065]]
if the standards are promulgated in accordance with section 306 within
120 days of proposal. CWA section 306; 40 CFR 122.2. New source
performance standards are similar to the technology-based limitations
established for existing sources, except that new source performance
standards are based on the best available demonstrated technology
instead of the best available technology economically achievable. New
facilities have the opportunity to install the best and most efficient
production processes and wastewater treatment technologies. Therefore,
Congress directed EPA to consider the best demonstrated process
changes, in-plant controls, and end-of-process control and treatment
technologies that reduce pollution to the maximum extent feasible. In
addition, in establishing new source performance standards, EPA is
required to take into consideration the cost of achieving the effluent
reduction and any non-water quality environmental impact and energy
requirements.
B. What Is Required Under Section 316 of the Clean Water Act?
Section 316(b) seeks to minimize the adverse environmental impact
associated with cooling water intake structures. Section 316(b)
provides, ``Any standard established pursuant to [CWA section 301] or
[CWA section 306] 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.''
Congress included section 316 in the CWA for the express purpose of
regulating thermal discharges and addressing the environmental impact
of cooling water intake structures. Sections 316(a) and (c) provide for
relief in certain circumstances from the thermal effluent standards
applicable to point source discharges of pollutants. Section 316(b)
does not focus on controlling the discharge of pollutants; rather, it
addresses the environmental impact of cooling water intake structures.
Section 316(b) is the only provision in the CWA that focuses
exclusively on water intake.
Today's proposal would establish requirements that focus on the
location, design, construction, and capacity of cooling water intake
structures at new facilities. For each of these features, today's
proposed rule would establish minimum requirements that constitute the
``best technology available for minimizing adverse environmental
impact.'' EPA notes that ``best technology available'' (BTA) is a
distinct standard under the CWA. Although it is technology-based and
similar to the standards used in the development of effluent
limitations guidelines (i.e., best available technology economically
achievable), the BTA standard does not explicitly include any
consideration of the costs of ensuring that cooling water intake
structures reflect the best technology available, although based on
legislative history EPA has long done so. In addition, the standards
developed under section 316(b) focus on minimizing adverse
environmental impact.
Today's proposal also would define a cooling water intake structure
as the total physical structure and any associated constructed
waterways used to withdraw water from waters of the U.S., provided that
at least twenty-five (25) percent of the water withdrawn is used for
cooling purposes. New facilities subject to this proposed regulation
would be those with a design intake flow of greater than two (2)
million gallons per day (MGD).
IV. History
A. Have Prior EPA Regulations Addressed Cooling Water Intake
Structures?
In April 1976 EPA published a rule under section 316(b) that
addressed cooling water intake structures. 41 FR 17387 (April 26,
1976), proposed at 38 FR 34410 (December 13, 1973). The rule added a
new Sec. 401.14 to 40 CFR Chapter I that reiterated the requirements of
CWA section 316(b). It also added a new part 402, which included three
sections: (1) Sec. 402.10 (Applicability); (2) Sec. 402.11 (Specialized
definitions); and (3) Sec. 402.12 (Best technology available for
cooling water intake structures). Section 402.10 stated that the
provisions of part 402 applied to ``cooling water intake structures for
point sources for which effluent limitations are established pursuant
to section 301 or standards of performance are established pursuant to
section 306 of the Act.'' Section 402.11 defined the terms ``cooling
water intake structure,'' ``location,'' ``design,'' ``construction,''
``capacity,'' and ``Development Document.'' Section 402.12 included the
following language:
The information contained in the Development Document shall be
considered in determining whether the location, design, construction
and capacity of a cooling water intake structure of a point source
subject to standards established under section 301 or 306 reflect
the best technology available for minimizing adverse environmental
impact.
In 1977 fifty-eight electric utility companies challenged these
regulations, arguing that EPA had failed to comply with the
requirements of the Administrative Procedure Act (APA) in promulgating
the rule. Specifically, the utilities urged that EPA had neither
published the Development Document in the Federal Register nor properly
incorporated the document into the rule by reference. The United States
Court of Appeals for the Fourth Circuit agreed and, without reaching
the merits of the regulations themselves, remanded the rule.
Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977). EPA later
withdrew part 402. 44 FR 32956 (June 7, 1979). 40 CFR 401.14 remains in
effect.
B. How Is Section 316(b) of the CWA Being Implemented Now?
Since the Fourth Circuit remanded EPA's section 316(b) regulations
in 1977, decisions implementing section 316(b) have been made on a
case-by-case, site-specific basis. EPA published 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
guidance describes the studies recommended for evaluating the impact of
cooling water intake structures on the aquatic environment, and it
establishes a basis for determining the best technology available for
minimizing adverse environmental impact. The 1977 Section 316(b) Draft
Guidance states, ``The environmental-intake interactions in question
are highly site-specific and the decision as to best technology
available for intake design, location, construction, and capacity must
be made on a case-by-case basis.'' (Section 316(b) Draft Guidance, U.S.
EPA, 1977, p. 4). This case-by-case approach also is consistent with
the approach described in the 1976 Development Document referenced in
the remanded regulation.
The 1977 Section 316(b) Draft Guidance suggests the general process
for developing information needed to support section 316(b) decisions
and presenting that information to the permitting authority. The
process involves the development of a site-specific study of the
environmental effects associated with each facility that uses one or
more cooling water intake structures, as well as consideration of that
study by the permitting authority in determining whether the facility
must make any changes to minimize adverse environmental impact. Where
adverse environmental impact is present, the 1977 Draft Guidance
suggests a ``stepwise'' approach that considers screening systems,
size, location, capacity, and other factors.
[[Page 49066]]
Although the Draft Guidance describes the information that should
be developed, key factors that should be considered, and a process for
supporting section 316(b) determinations, it does not establish
national standards based on the best technology available to minimize
adverse environmental impact. Rather, the guidance leaves the decisions
on the appropriate location, design, capacity, and construction of each
facility to the permitting authority. Under this framework, the
Director determines whether appropriate studies have been performed and
whether a given facility has minimized adverse environmental impact.
V. Scope and Applicability of the Proposed Rule
A. Who Is Covered Under This Proposed Rule?
Today's proposed rule would apply to you if you are the owner or
operator of a facility that meets all of the following criteria:
Your facility is a new facility;
Your new facility has a cooling water intake structure or
structures;
Your new facility's cooling water intake structure(s)
withdraw(s) water from waters of the U.S. and at least twenty-five (25)
percent of the water withdrawn is used for contact or noncontact
cooling purposes;
Your new facility has a design intake flow of greater than
two (2) million gallons per day (MGD); and
Your new facility has an NPDES permit or is required to
obtain one.
B. What Is a ``New Facility''?
EPA is proposing to define the term ``new facility'' to mean any
building, structure, facility or installation which
Meets the definition of ``new source'' or ``new
discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4);
Commences construction after the effective date of this
rule; and
Has a new or modified cooling water intake structure that
withdraws water from waters of the U.S.
This proposal covers 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. 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. A
modified cooling water intake structure is one that has some part of
the intake, including the pumps, changed, replaced, or expanded to
accommodate, in whole or in part, a new facility's water usage. Routine
maintenance and repair to an intake structure which is currently
withdrawing cooling water and does not result in an increase in design
capacity is not considered a modification. Facilities that meet the
conditions of 40 CFR 122.29(b)(3) would be considered to be undergoing
a modification and would not be considered a ``new facility'' under
these regulations. Such facilities will be addressed during the
forthcoming existing facility rulemaking.
Examples of when a facility would be considered a new facility
include, but are not limited to the following:
Facility A is newly constructed on a property that has
never been used for industrial or commercial activity, and a new
cooling water intake structure is constructed for Facility A's use.
Facility B, which produces widgets, is demolished and
Facility C is constructed in its place. (Facility C might or might not
produce widgets). Facility C uses the cooling water intake structure
that Facility B used but modifies it in some way.
Facility D is in commercial operation. Facility E, a
separate and independent industrial operation, is constructed on the
property that Facility D owns. The cooling water intake structure that
Facility D uses is modified by constructing a new intake bay for
Facility E's use.
Modifications to an existing facility would not be covered under
this proposed rule. Rather, such modifications will be addressed during
the existing facility rulemaking. Examples of when a facility
undergoing a change or modification would be considered an existing
facility might include the following:
Facility F is in commercial or industrial operation.
Facility F modifies its facility and either continues to use the
original cooling water intake structure or a new or modified cooling
water intake structure.
Facility G has an existing intake structure. Facility H, a
separate and independent industrial operation, is constructed on the
property that Facility G owns and connects to Facility G's cooling
water intake structure behind the intake pumps. In this case, the
cooling water intake structure has not been modified for Facility H's
use. This would remain true even if routine maintenance or repairs were
performed on the structure.
Facility J is in commercial or industrial operation.
Facility J adds a new process unit consistent with 40 CFR 122.29(b)(3)
that is directed toward the same general activity (e.g., a new peaking
unit at an electricity generation station) as facility J's existing
operations. Facility J may or may not modify its intake structure to
accommodate the new unit.
Today's proposal would define a facility as new based on the date
the facility commences construction within the meaning of 40 CFR
122.29(b)(4). Under this approach, any facility that commences
construction after the date on which the final rule is effective would
have to comply with the new facility requirements. This approach to
defining ``new facility'' is generally consistent with the definition
of the terms ``new source'' and ``new discharger'' used in the NPDES
permitting program (see 40 CFR 122.2 and 122.29), and it should provide
adequate notice and time for the planning needed to implement the
technological changes necessitated by the requirements.
C. What Is a ``Cooling Water Intake Structure''?
At Sec. 125.83, EPA is proposing to define a ``cooling water intake
structure'' as the total physical structure and any associated
constructed waterways used to withdraw water from a water of the U.S.,
provided that at least twenty-five (25) percent of the water withdrawn
is used for cooling purposes. The cooling water intake structure
extends from the point at which water is withdrawn from the surface
water source to the first intake pump or series of pumps. The intended
use of the cooling water is to absorb waste heat rejected from
processes employed or from auxiliary operations.
This definition differs from the definition included in the 1977
Draft Guidance. First, the proposed definition clarifies that the
cooling water intake structure includes the physical structure and
technologies that extend up to the first intake pump or series of
pumps. This change is intended to define more clearly what EPA
considers to constitute the cooling water intake structure. Second, the
definition would apply to water being brought in for both contact and
noncontact cooling purposes. This clarification is necessary because
cooling water intake structures typically bring water into at 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. Finally, the proposed definition includes intake
structures if a facility uses twenty-five
[[Page 49067]]
(25) percent or more of the water drawn through the structure for
cooling purposes. This also is a change from the current practice. (The
1976 final rule and 1977 Draft Guidance definition of a ``cooling water
intake structure'' included intake structures if a facility used the
major portion of water drawn through the structure for cooling
purposes. In practice, many permitting authorities have interpreted
that definition to apply to intake structures if a facility uses more
than 50 percent of the water drawn through the structure for cooling.)
Based on experience since the late 1970s, the Agency included
intake structures at new facilities in today's proposal if a facility
uses twenty-five (25) percent or more of the withdrawn water for
cooling purposes. It is well settled that section 316(b) applies to all
categories of point sources. See United States Steel Corp. v. Train,
556 F.2d 822, 849-50 (7th Cir. 1977). In practice, however, section
316(b) has been implemented at few facilities other than steam electric
generating plants, despite the fact that a number of other industries
use significant amounts of cooling water. EPA chose twenty-five (25)
percent as a reasonable threshold for the percent of flow used for
cooling purposes in conjunction with the two MGD total flow threshold
discussed at section V.D. below to ensure that almost all cooling water
withdrawn from waters of the U.S. are addressed by the requirements in
this proposal for minimizing adverse environmental impact. The Agency
invites comment on this proposed approach to defining a cooling water
intake structure. The Agency also invites comment on whether it should
define a cooling water intake structure in a manner similar to the 1976
final rule and 1977 draft guidance. If EPA implemented the latter
approach, language such as the following would be included in proposed
Sec. 125.83:
Cooling water intake structure means the total structure used to
direct water into the components of the cooling systems wherein the
cooling function is designated to take place, provided that the
intended use of the major portion of the water so directed is to
absorb waste heat rejected from the process or processes employed or
from auxiliary operations on the premises, including air
conditioning.
The Agency also invites comment on an alternative where the Agency
would define a cooling water intake structure to include intake
structures if a facility uses five percent or more of the water drawn
through the structure for cooling purposes. This alternative would
further ensure that almost all cooling water withdrawn from waters of
the U.S. is addressed by the requirements of this national regulation.
This alternative also might minimize any potential that the proposed 25
percent threshold would discourage recycling of cooling water, or reuse
of cooling water for process needs, by facilities that recycle or reuse
cooling water at rates above 25 percent, and might choose to reduce
their recycling/reuse rates to avoid meeting the requirements of the
proposed rule. For similar reasons, the Agency is considering
alternative definitions for a cooling water intake structure based on
whether 20 percent, 15 percent, or 10 percent of the intake flow drawn
through the structure is used for cooling. The Agency also invites
comments on these alternative definitions.
D. Must My Facility Withdraw Water From Waters of the U.S.?
The requirements proposed today would apply to cooling water intake
structures that withdraw amounts of water greater than the proposed
flow threshold from ``waters of the U.S.'' Waters of the U.S. 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. Cooling ponds are
considered ``waters of the U.S.'' if they meet the criteria in the
definition of ``waters of the U.S.'' at 40 CFR 122.2. Therefore,
facilities that withdraw cooling water from cooling ponds that are
``waters of the U.S.'' and that meet today's other proposed criteria
for coverage (including the requirement that the facility have or be
required to obtain an NPDES permit) would be subject to today's
proposed rule. EPA invites comment on the applicability of today's
proposal to new facilities that withdraw water from cooling ponds that
are considered ``waters of the U.S.''
At Sec. 125.81, EPA is proposing that national BTA requirements
would apply to new facilities that have a cooling water intake
structure with a design intake capacity of greater than or equal to two
(2) MGD of source water. EPA chose the two MGD threshold in conjunction
with the proposed threshold discussed in the immediately preceding
section, that would define a cooling water intake structure as any
structure withdrawing water from a water of the U.S. if more than
twenty-five (25) percent of the water withdrawn through the structure
is used for cooling purposes. EPA estimates that the two MGD threshold
would subject approximately 90 percent of all cooling water flows from
new facilities to the proposed rule. EPA based this estimate on: (1)
EPA's projected universe of new facilities that would be subject to the
proposed rule; and (2) review of a limited set of data on percent of
intake flow used for cooling that EPA drew from responses to the
detailed questionnaires mailed to existing facilities in January 2000.
EPA believes that cooling water intake structure withdrawals that
are at or below a two MGD threshold would generally affect only a very
small proportion of a water body or, if the water body is very small,
would have a localized impact. EPA believes that facilities, which
because of their small quantity of cooling water use, either are
unlikely to cause or have limited potential to cause adverse
environmental impact need not be subject to national regulation. This
is especially so because the Agency has limited information on such
facilities with respect to cooling water usage and their potential for
adverse impact. The Director may consider whether to address new
facilities that use lesser amounts of cooling water on a case-by-case
basis using best professional judgment.
In addition to a two MGD flow threshold, the Agency is considering
higher flow thresholds including 5, 10, 15, 20, 25, and 30 MGD. To
evaluate the amount of cooling water that would be covered under these
alternative thresholds, EPA used data from its screener questionnaire
sent to existing industries that use the largest amounts of cooling
water and made a number of important assumptions. First, EPA assumed
that new and existing facilities would use similar amounts of cooling
water. The Agency notes this assumption may overestimate the percentage
of flows at new electricity generating facilities that would be covered
by the proposed rule as many of these facilities, if they intend to use
waters of the U.S. for cooling, also intend to use technologies to
minimize cooling water flow. For example, only three of the seven
specific, planned electricity generating facilities for which EPA has
information on cooling water system design would use more than 10 MGD.
Second, EPA assumed that data in the screener survey on total intake
flow could be used to represent cooling water flows. Finally, the
Agency assumed that none of the facilities included in the screener
survey used less than 25% of
[[Page 49068]]
their total intake flow for cooling. This last assumption should not
affect statements about steam electric generating facilities as most of
their intake flow is used for cooling. However, as manufacturing
facilities in the screener survey may use significant amounts of
process water, some portion of these facilities may not use 25% or more
of their intake flow for cooling and, if they were new facilities,
would not be within the scope of the proposed rule.
For comparison purposes, EPA first analyzed a two MGD threshold and
estimated that it would subject up to 99.97 percent of all cooling
water flows from these industries to the proposed rule. On an industry-
specific basis, the percentage of flows covered by the rule would range
from more than 99.99 percent in the electric utility industry to as
much as 98 percent in the chemical industry.
Using a similar methodology, EPA estimates that a 10 MGD flow
threshold would subject up to 99.67 percent of all cooling water flows
in the industries that use the largest volumes of cooling water to the
proposed rule. On an industry-specific basis, the percentage of flows
covered by the rule would range from 99.95 percent in the electric
utility industry to as much as 79 percent in the refining industry. EPA
estimates that a twenty-five (25) MGD threshold would subject up to
99.1 percent of all cooling water flows from these industries to the
proposed rule. On an industry-specific basis, the percentage of flows
covered by the rule would range from 99.8 percent in the electric
utility industry to as much as 65 percent in the chemical industry.
The Agency invites comment on the proposed two MGD flow threshold
and the alternative flow thresholds discussed above. The Agency also
invites comment on whether a higher threshold (such as 25 MGD) might be
appropriate for a facility that uses 10 percent or less of a water body
at critical low flow periods.
EPA is proposing to set the threshold at 2 MGD to ensure that
almost all cooling water withdrawn from waters of the U.S. is covered
by a national regulation. However, the Agency recognizes that there is
little information currently available regarding the lower bound of
withdrawals at which adverse environmental impact is likely to occur.
Most case studies documenting impingement and entrainment from cooling
water withdrawals in the past have focused on facilities withdrawing
very large amounts of water (in most cases greater than 100 MGD). There
is less information available on the impacts of withdrawals at any of
the levels being considered for the MGD flow threshold. EPA is aware of
impingement and entrainment studies at a facility in Michigan with a 20
MGD flow. EPA also is aware of at least one study of impingement and
entrainment at a facility in New York State that proposed to withdraw
4.2 MGD. In this case, the Director estimated fish mortalities of
24,500 American Shad, 1.9 million river herring, 1200 striped bass and
23,000 white perch. The Agency invites commenters to provide any data
they may have regarding impingement and entrainment rates associated
with 2 MGD water withdrawals. The Agency also invites commenters to
provide any data they may have regarding impingement and entrainment
rates associated with an alternative flow threshold of 5 MGD. The
Agency also invites commenters to provide any data they may have
regarding impingement and entrainment rates associated with the
alternative flow thresholds of 10 MGD, 15 MGD, 20 MGD, 25 MGD, and 30
MGD.
EPA invites comment on all aspects of using these proposed
thresholds to establish the universe of facilities that would be
subject to the BTA requirements of this proposed regulation.
In addition to the MGD flow threshold discussed above, EPA is
considering whether it should add a flow threshold to address the
potential for adverse environmental impact posed by facilities that
withdraw less than 2 million gallons of water per day but are located
on smaller water bodies. To provide an additional measure of protection
for these water bodies, the Agency might also include facilities that
withdraw less than 2 MGD in this rulemaking if they withdraw more than
1% of the mean annual flow of a freshwater river or stream; the mean
annual volume of a lake or reservoir; or the volume of the water column
within the area centered about the opening of the intake with a
diameter defined by the distance of one tidal excursion at the mean low
water level for an estuary or tidal river. If the Agency were to
include this additional flow threshold, language such as the following
would be added at the end of the proposed Sec. 125.81:
Or a design intake flow of greater than one (1) percent of the
waterbody flow or volume (the mean annual flow of a freshwater river
or stream; the mean annual volume of a lake or reservoir; or the
volume of the water column within the area centered about the
opening of the intake with a diameter defined by the distance of one
tidal excursion at the mean low water level for tidal rivers and an
estuaries.
The Agency invites comment on this alternative flow threshold. The
Agency also invites comment on whether it should include a higher
threshold based on a facility's withdrawal as a percentage of waterbody
flow or volume, such as five percent, 10 percent or 20 percent.
Should EPA decide to include a flow threshold based on a facility's
withdrawal as a percentage of waterbody flow or volume, the Agency
requests comment on whether it should establish an absolute minimum
flow threshold (such as 50,000 or 100,000 gallons of waters of the U.S.
used on a daily basis for cooling purposes) in conjunction with the one
(1) percent of the water body flow or volume threshold described above.
An absolute minimum gallon per day threshold could ensure that very
small new facilities located on very small streams are not captured by
the national regulation and, instead, are addressed by the Director, as
appropriate, using best professional judgment on a case-by-case basis.
If EPA added a minimum flow threshold to the part of the applicability
criteria that relates to withdrawal of water by the facility, language
such as the following would be added at the end of proposed
Sec. 125.81, as modified by the alternate regulatory language described
in the preceding paragraph: ``and greater than [100,000 gallons] per
day.''
E. Must My Facility Have a Point Source Discharge Subject to an NPDES
Permit?
Today's proposed rule would apply only to new facilities as defined
in Sec. 125.83 that have an NPDES permit or are required to obtain one
because they discharge or might discharge pollutants, including storm
water, from a point source to waters of the U.S. Requirements for
minimizing the adverse environmental impact of cooling water intake
structures would continue to be applied through NPDES permits.
Based on the Agency's review of existing facilities that employ
cooling water intake structures, the Agency anticipates that most new
facilities that would be subject to this rule will control the intake
structure that supplies them with cooling water and discharge some
combination of their cooling water and wastewater and storm water to a
water of the U.S. through a point source regulated by an NPDES permit.
In this scenario, the requirements for the cooling water intake
structure would be applied in the facility's NPDES permit. In the event
[[Page 49069]]
that a new 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. The Agency invites comment on this
approach for applying cooling water intake structure requirements to
the facility. Alternatively, requirements applicable to cooling water
intake structures could be incorporated into general permits. The
Agency also invites comment on this approach.
In addition to the scenario described above, based on the Agency's
review of existing facilities that employ cooling water intake
structures, the Agency anticipates that some new facilities that have
or are required to have an NPDES permit will not directly control the
intake structure that supplies their facility with cooling water. For
example, a number of facilities operated by separate entities might be
located on the same, adjacent, or nearby property; 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
U.S. As another example, some facilities might use municipal water that
is withdrawn from a water of the U.S. as their source for cooling
water. The Agency invites comment on whether and how to prescribe
section 316(b) requirements in these instances. In particular, the
Agency invites comment on the proposal to regulate an intake structure
if more than one-half of the flow serves new facilities and whether the
threshold should be higher or lower. In addition, as in the previous
paragraph, the Agency invites comment on a scenario in which the
Director would place cooling water intake requirements in the new
facility's NPDES permit and in the NPDES permit of the entity that
controls the intake to ensure compliance with the cooling water intake
requirements proposed today. This scenario is analogous to the Agency's
finding of law in General Counsel Opinion No. 43 (June 11, 1976) that
industrial users of a privately owned wastewater treatment plant are
jointly and severally responsible for compliance with the provisions of
the NPDES permit issued for the treatment plant. Alternatively, the
Director could place cooling water intake requirements only in the
permit of the facility that operates the structure. This would be
administratively simpler and would limit permit requirements to the
facility with direct operational control of the structure. The Agency
also requests comment on this approach. If the new facility or the
entity that controls the intake would have or be required to have only
a general permit for storm water discharges, the Director would issue
individual NPDES permit requirements, unless appropriate cooling water
intake requirements were included in the general permit.
Should the requirements proposed today apply to only new facilities
that control their intake structure, the Agency recognizes the
possibility that some new facilities that have or are required to have
an NPDES permit might restructure their operations to place control of
the cooling water intake structure in an entity separate from the new
facility withdrawing water for cooling purposes. In these situations,
the Agency proposes to examine the operation of the new facility and
the cooling water intake structure together. Should the Agency
determine that the structure would be within the scope of this proposed
rule but for the fact that it is not directly controlled by the new
facility using the water, the Agency is considering applying the new
facility requirements to the cooling water intake structure. The Agency
invites comment on the policy merits of this position and how the
Agency should prescribe cooling water intake structure requirements in
this scenario.
Today's proposal applies only to facilities that are required to
have an NPDES permit for direct discharges to surface waters. However,
because similar adverse environmental impact can be caused by cooling
water intake structures used by new facilities not subject to the NPDES
program, the Agency encourages the Director to closely examine
scenarios in which a new facility withdraws significant amounts of
cooling water but does not have 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, or similar State authorities to
address adverse environmental impact caused by cooling water intake
structures at those new facilities.
New facilities that EPA does not propose to regulate today, but
that might cause similar impact, include the following:
New facilities that withdraw cooling water from a water of
the U.S. and discharge it along with other flows to a POTW for
treatment and discharge;
New facilities that purchase cooling water from a second
facility that owns and operates the cooling water intake structure and
withdraws the water from a water of the U.S. The new facility
discharges the cooling water along with other flows to a POTW for
treatment and discharge;
New facilities that purchase cooling water from a
municipal utility. The municipal utility owns and operates the cooling
water intake structure and withdraws water from a water of the U.S. The
new facility uses a significant amount of the municipal water for
cooling purposes and discharges its cooling water to a POTW for
treatment and discharge.
The Agency's concern regarding the environmental impact caused by
cooling water intake structures at new facilities that would not be
regulated by today's proposal is tempered somewhat by the following
considerations. In each of the three scenarios just described, cooling
water discharges would be sent to a publically owned treatment works.
Based on responses to the Agency's section 316(b) screener
questionnaire, the Agency estimates that the average cooling water use
by a large utility steam electric generating facility is approximately
700 MGD; average water use by a large nonutility steam electric
generating facility (i.e., a facility that owns electric generating
capacity but typically sells its electricity to a utility for
distribution) is approximately 85 MGD. In most circumstances, a POTW
would not accept such large volumes of cooling water because the flows
from these facilities would likely dilute the waste stream reaching the
POTW to the point where the POTW could face significant difficulty
meeting its secondary treatment standard requiring removal of a fixed
percentage of incoming biological oxygen demand. POTWs also enforce
pretreatment requirements to ensure that heat in wastewater discharged
does not interfere with biological treatment processes. Such large
volumes of cooling water could potentially be too hot for the POTW to
accept. In the third scenario presented in the preceding paragraph, the
cost of using water treated to meet drinking water standards as cooling
water is an additional issue. (The Agency notes that some steam
electric generating facilities do use treated municipal effluent for
cooling water, a distinct practice that has the potential to reduce use
of waters of the U.S. for cooling water.) For manufacturing facilities,
the potential for indirect discharge of cooling water might be greater.
For example, the pulp and paper industry is the largest industrial
process water user in the United States. In 1990 EPA surveyed 565 mills
that manufacture pulp, paper, and paperboard as part of the Agency's
development of effluent limitation
[[Page 49070]]
guidelines for this industry. Of the 565 pulp mills, 203 (36 percent)
discharge a total volume of 680 MGD indirectly to municipal treatment
works.
In order to address the potential concerns with cooling water
intake by indirect dischargers, the Agency invites comment on an
alternative where the Agency would regulate point sources that supply
large volumes of cooling water to indirect dischargers (e.g., municipal
utilities or other water suppliers) and place technology requirements
to satisfy section 316(b) into the NPDES permit of the utility that
controls the intake. The Agency is aware of the practical difficulties
in requiring facilities that supply water to large numbers of customers
to account for the specific end uses.
VI. Data Collection and Overview of Industries Potentially Subject
to Proposed Rule
A. Overview
As discussed above, today's proposed rule would apply to new
facilities with cooling water intake structures as defined in
Sec. 125.83 that are point sources requiring an NPDES permit.
Generally, facilities that meet these criteria fall into two major
groups, new steam electric generating facilities and new manufacturing
facilities. These would include new facilities in the pulp and paper,
chemical, petroleum, iron and steel, and aluminum manufacturing
industries, which are known to be major users of cooling water.
B. New Steam Electric Generating Facilities
To identify planned utility and nonutility electric generating
facilities that could potentially be affected by the section 316(b) new
facility regulation, EPA used the NEWGen database, developed by
Resource Data International (RDI). This database provides facility-
level data on new power projects, including information on generating
technology, plant capacity, electric interconnection, project status,
date of initial commercial operation, and other operational details.
The Agency evaluated each of the 466 facilities identified in the RDI
database for the following criteria: ``new plant'' status, project
status, location within the United States, plant type, anticipated date
of initial commercial operation, and availability of cooling water
intake structure information.
EPA's review identified 305 proposed new utility and nonutility
electric generating facilities in the United States. Of these, 188
facilities will generate electricity using steam turbine or combined-
cycle prime movers and would be potentially subject to regulation under
section 316(b). (The term ``prime mover'' refers to the primary
mechanism used by a facility to produce electricity.) To conduct
various analyses required by statute and executive order (e.g.,
Executive Order 12866), EPA examined facilities with a projected
operational date of August 13, 2001, or later as potential new
facilities that would be subject to this proposal. Ninety-four
facilities meet this criterion. Fifty-six of the ninety-four facilities
had reported information on their planned source and volume of cooling
water to their permitting authorities. EPA based the analyses in
support of this proposed regulation partially on those 56 facilities.
Eighty-eight percent of the 56 facilities examined plan to use
combined-cycle \1\ prime movers to generate electricity. Combined-
cycle/cogeneration facilities are the second most common type of new
facility, representing approximately 5 percent of the analyzed new
facilities. In total, combined-cycle facilities represent more than 91
percent of the new capacity. The 56 facilities EPA identified will
account for a total of 40,500 megawatts of additional generation
capacity. On the basis of the capacity of these sample facilities and
the total electric generation capacity forecasted by the Energy
Information Administration (EIA), EPA predicts that 13 new facilities
that will incur costs under this proposed regulation will be built over
the next 10 years. For the period 2011 to 2020, EPA estimates that an
additional 103 new facilities would be built but only 27 of these
facilities would be in scope of today's proposed rule.
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\1\ Most of the electricity in the United States is produced by
steam turbine generating units. A combined-cycle facility uses both
a combustion turbine prime mover and a steam turbine prime mover to
increase the efficiency of the generating unit.
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EPA further analyzed all 56 potential facilities to determine
whether they would qualify as ``new facilities'' subject to this
regulation as defined in Sec. 125.83. Of the 56 facilities for which
the source and volume of cooling water could be determined, only seven
meet all of the proposed criteria for new facilities that are within
the scope of this proposed regulation. Of these seven, one facility is
proposing to locate a cooling water intake structure in a tidal river,
four in nontidal rivers, and two in lakes. The remaining 49 facilities
will either not withdraw cooling water from waters of the U.S. (45
facilities), will use cooling water withdrawn through an existing
intake structure (three facilities), or are not expected to require an
NPDES permit (one facility). These 49 facilities therefore would not be
subject to the proposed section 316(b) new facility regulation. Forty-
one of the 45 facilities that will not withdraw cooling water from a
surface water source (approximately 91 percent) will use municipal
water, ground water, or treated effluent, or a combination of the
three, as a source of cooling water. The remaining four facilities are
not expected to have a cooling water intake structure because they are
air cooled. Based on the seven facilities that would be affected from
the sample of 56 facilities and the Energy Information Administration
forecast of total steam electric generation capacity additions, EPA
projects 13 facilities would be affected over the next 10 years and an
additional 27 facilities over the following 10 years. Therefore, the
Agency's cost and regulatory impact analyses for the utility and non-
utility electricity-producing industries focused on 40 electricity
generating facilities over 20 years.
C. New Manufacturing Facilities
EPA identified prospective new facilities in the other industry
sectors affected by today's proposed rule through a consultation
process with the respective associations for those industries, review
of independent market analyses, and projections based on the Section
316(b) Industry Screener Questionnaire: Phase I Cooling Water Intake
Structures. EPA contacted the following industry associations: American
Forest and Paper Association, American Petroleum Institute, National
Petrochemical Refiners Association, American Iron and Steel Institute,
Steel Manufacturers Association, Specialty Steel Industry of North
America, the Aluminum Association of America, and the Chemical
Manufacturers Association. The Agency questioned each of the
associations about growth in its industry, including projections about
construction of new facilities. EPA also reviewed independent forecasts
for the major industry sectors likely to be affected by today's
proposed rule to assess the number of new facilities likely to be built
in the foreseeable future. Finally, EPA estimated the number of new
manufacturing facilities likely to be within the scope of today's rule
based on preliminary data addressing existing facilities.
EPA estimates that approximately 70 new manufacturing facilities
that would be subject to today's proposed rulemaking will be built over
the next 20 years (2001 to 2020). This number is
[[Page 49071]]
generally consistent with the data EPA reviewed through industry
consultations and forecast reviews.
The American Forest and Paper Association (AF&PA) reported the
possibility of one new facility being built in the next few years. In
addition, AF&PA indicated that a second new facility is under
consideration. These are the only prospective new facilities in the
pulp and paper industry. AF&PA reports that paper production in the
United States has been declining and that if additional production is
required, it will most likely come from expansion or full utilization
of existing facilities. Review of independent industry projections
supports AF&PA's information. EPA is projecting that no new facilities
in the pulp and paper industry will be built in the next 20 years that
would be within the scope of this rule. EPA requests comment on this
projection and any relevant data commenters may have.
In the United States, steel is typically produced by either large
integrated mills that convert iron ore into steel or by minimills that
employ an electric arc furnace (EAF) process to fabricate scrap steel
into new product. The American Iron and Steel Institute (AI&SI)
represents primarily the integrated steel producers, and the Steel
Manufacturers Association (SMA) represents chiefly the minimills. These
associations report that there has been a significant expansion in the
number of new minimills in the past few years but that much of the
immediate expansion is over. A limited number of new minimills will
come on line in the foreseeable future, but new integrated mills are
unlikely to be built. Agency review of independent industry projections
supports this assessment. According to these projections, new
steelmaking capacity soon will result mostly from new minimills coming
on line. This is in keeping with long-term industry trends: the EAF
share of the U.S. steel market has risen from 12 percent to 50 percent
in the past three decades. Although minimills generally require large
amounts of cooling water, they typically use closed-cycle recirculating
systems with cooling towers. Production increases by integrated
producers will most likely occur as a result of capacity expansion or
improved efficiencies at existing facilities rather than new
construction of integrated mills. EPA estimates that eight new
minimills, as well as one cold-rolled steel sheet strip and bar mill,
that might incur costs under this proposed rule will be built over the
next 20 years.
The Aluminum Association of America (AAA) reports it is unlikely
that new primary aluminum smelters will be built in the foreseeable
future. The growth area in the aluminum industry is in secondary
aluminum manufacturing--facilities that recycle aluminum rather than
use aluminum ore. Review of independent aluminum industry projections
reveals that significant growth in demand is expected soon, but it is
not certain whether this demand will be met through construction of new
facilities, expansion of existing plants, or increased capacity
utilization at existing facilities. EPA estimates that four new
aluminum facilities that might incur costs under this proposed rule
will be built over the next 20 years.
The majority of petroleum refiners are represented by two
organizations, the American Petroleum Institute (API) and the National
Petrochemical Refiners Association (NPRA). API represents many of the
large refiners, and NPRA represents some large and many of the small
refiners. Both organizations report that it is unlikely that a new
refinery will be built in the foreseeable future and note that
expansion of refinery capacity will occur exclusively through growth of
existing facilities. Moreover, the number of refineries is declining
and competitive pressures have led to consolidations and mergers in the
petroleum industry. Review of independent industry projections supports
this conclusion and shows that during the period between January 1990
and January 1997, the number of operable refineries in the United
States declined from 205 to 164. EPA estimates that no new facilities
in the petroleum and coal products sector with costs under this
regulation will be built over the next 20 years.
The chemical industry is one of the more diverse industry sectors
in the U.S. and includes the largest number of individual facilities of
the industries subject to today's proposed rule. The Chemical
Manufacturers Association (CMA) reports that there is likely to be
little expansion or development of new facilities in the chemical
industry in the near future. CMA expects that near term growth in
industry output will occur through changes in product lines or
expansion of existing facilities. Review of independent industry
projections discloses that the near term picture is for considerable
restructuring and consolidation with moderate growth in the number of
new facilities for the longer term. However, because the chemical
industry sector is so large, even moderate growth will result in the
addition of a considerable number of facilities. Moreover, many of the
new facilities are likely to be small businesses as CMA estimates that
40 to 60 percent of its members are small businesses and the
expectation is that this ratio will remain approximately the same. EPA
expects that 56 new facilities in the chemical industry sectors that
are subject to the requirements of this rule will be constructed within
the next 20 years.
EPA has estimated that the above industries (including the
electricity generating industry) represent approximately 5,000 to 6,000
existing facilities nationwide and are responsible for almost 99
percent of all the cooling water use in the United States. Today's
proposed rule would also affect other industry sectors, including
textile mill products; lumber and wood products; rubber and
miscellaneous plastic products; stone, clay, glass, and concrete
products; and transportation equipment. EPA did not undertake outreach
to or survey these industry sectors in part because the Agency has
determined that all these other industries, although constituting a
large number of individual facilities, in aggregate withdraw
approximately 1 percent or less of all cooling water used in the United
States. As a result, even if there is a substantial increase in the
number of new facilities in these industry sectors, EPA projects that
few would be subject to today's proposed rule. Based on the Engineering
and Economic Analysis document that EPA prepared while developing this
proposal, EPA projects it is unlikely that there will be new facilities
in any sectors other than electricity generation, primary metals, and
chemicals that would be subject to the requirements of this rule over
the next 20 years. EPA requests comment on this projection and any
relevant data commenters may be able to provide.
VII. Environmental Impact Associated With Cooling Water Intake
Structure
A. Overview
Based on estimates cited in the record for the Agency's previous
section 316(b) regulations and guidance, power plants and industrial
facilities in the United States withdrew approximately 70 trillion
gallons of water from U.S. waters each year for cooling water purposes.
Power plants alone account for approximately 80 percent of the total
cooling water withdrawals, or about 60 trillion gallons of cooling
water per year.\2\ The withdrawal of such large
[[Page 49072]]
quantities of cooling water affects vast quantities of aquatic
organisms annually, including phytoplankton,\3\ zooplankton,\4\ fish,
shellfish, and many other forms of aquatic life. Aquatic organisms
drawn into cooling water intake structures are either impinged on
components of the cooling water intake structure or entrained in the
cooling water system itself. In either case, a substantial number of
these organisms are killed or subjected to significant harm as a
result.
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\2\ EPA anticipates updating these water usage estimates based
on its survey questionnaire of industrial facilities potentially
subject to the section 316(b) regulation for existing facilities.
\3\ Phytoplankton are tiny, free-floating photosynthetic
organisms suspended in the water column.
\4\ Zooplankton are small marine animals that consume
phytoplankton and other zooplankton. Ichthyoplankton is a group of
plankton composed of fish eggs and larvae.
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Currently, many cooling water intake structures use some type of
intake control technology. In most cases these technologies prevent
debris from entering the cooling water system but do not protect
aquatic organisms. The most common intake devices used in the steam
electric generating industry, as well as other industries, are front-
end trash racks (generally fixed bars) to prevent large debris from
entering the system, followed by single-entry, single-exit vertical
traveling screens (conventional traveling screens). It is also
noteworthy, however, that between 1955 and 1997 the number of new steam
electric generating facilities using closed-cycle recirculating cooling
water systems increased from 25 percent to 75 percent, with a
corresponding decrease in facilities using once-through systems.\5\
Between 1975 and 1984 the number of steam electric generating
facilities using closed-cycle recirculating systems increased 31
percent. This trend toward the use of closed-cycle recirculating
systems is projected to continue as new facilities are built. Of the
seven new generating facilities that would potentially be covered by
this proposed rule and for which EPA has planning information, all
seven plan to use closed-cycle recirculating cooling water systems.
There is also evidence of a trend among new facilities to use less
cooling water. All of the seven new facilities in EPA's analysis are
projected to use less than 20 MGD.
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\5\ EPA estimates that 84 percent of existing steam electric
generating facilities started operation between 1955 and 1985. An
additional 7 percent of these facilities started operation between
1985 and 1997.
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B. What Types of Environmental Impacts Are Caused by Cooling Water
Intake Structures?
EPA's May 1977 Draft Guidance for Evaluating the Adverse Impact of
Cooling Water Intake Structures on the Aquatic Environment describes
two primary ways in which cooling water intake structures can cause
adverse environmental impact. The first is entrainment, which occurs
when organisms are drawn through the cooling water intake structure
into the cooling system. Organisms that become entrained are normally
relatively small benthic,\6\ planktonic,\7\ and nektonic \8\ forms of
fish and shellfish species. As entrained organisms pass through a
plant's cooling system they are subject to mechanical, thermal, and
toxic stress. Sources of such stress include physical impacts in the
pumps and condenser tubing, pressure changes caused by diversion of the
cooling water into the plant or by the hydraulic effects of the
condensers, sheer stress, thermal shock in the condenser and discharge
tunnel, and chemical toxemia induced by antifouling agents such as
chlorine. The mortality rate of entrained organisms is high.
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\6\ Refers to bottom dwellers that are generally small and
sessile (non-swimming), but can include certain large motile (able
to swim) species. These species can be important members of the food
chain.
\7\ Refers to free floating microscoic plants and animals,
including fish eggs and larval stages with limited ability to swim.
Plankton are also an important source of food for other aquatic
organisms and an essential components of the food chain in aquatic
ecosystems.
\8\ Refers to organisms with swimming abilities that permit them
to move actively through the water column and to move against
currents.
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Another way in which intakes affect aquatic life is through the
impingement of fish and other aquatic organisms on devices installed on
the cooling water intake structure to prevent debris from entering the
facility's cooling system. Organisms are trapped against these
screening devices by the force of the water passing through the cooling
water intake structure. Impingement can result in starvation and
exhaustion (when organisms are trapped against an intake screen or
other barrier at the entrance to the cooling water intake structure),
asphyxiation (when organisms are forced against an intake screen or
other barrier at the entrance to the cooling water intake structure by
velocity forces that prevent proper gill movement or when organisms are
removed from the water for prolonged periods of time), and descaling
(when organisms are removed from an intake screen by a wash system).
In addition to impingement and entrainment losses associated with
the operation of the cooling water intake structure, EPA is concerned
about the overall degradation of the aquatic environment as a
consequence of multiple intake structures operating in the same
watershed or in the same reach or nearby reaches. EPA is also concerned
about the potential impacts of cooling water intake structures located
in or near habitat areas that support threatened or endangered species.
Although limited data document the extent to which threatened or
endangered species are harmed or killed due to impingement or
entrainment, such impacts do occur. For example, EPA is aware that over
a 9-year period more than 1,300 endangered sea turtles entered enclosed
cooling water intake structure canals at one power plant \9\ and that
other plants impinge and entrain threatened delta smelt and endangered
runs of chinook salmon and steelhead trout.\10\
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\9\ The plant developed a capture-and-release program in
response to these events. Most entrapped turtles were captured and
released alive; however, some mortality has occurred.
\10\ For example, Pittsburg and Contra Costa in the San
Francisco Bay Delta area of California.
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Furthermore, EPA is concerned about adverse environmental impact
associated with the construction of new cooling water intake
structures. Such adverse impacts primarily result from three factors--
displacement of populations and habitat resulting from the physical
placement of a new cooling waste intake structure in an aquatic
environment, the impact on the aquatic environment of increased levels
of turbidity, and the effects on aquatic biota and habitat associated
with disposal of materials excavated during construction. Unlike
operational impacts, adverse impact associated with construction need
not be recurring in nature. Even where construction of a new cooling
water intake structure takes a number of months, such construction
could cause significant adverse impact. For example, the construction
of a new intake structure could destroy or harm habitat value through
the physical destruction or degradation of submerged lands or banks, or
by stirring up sediments. Today's proposed rule includes requirements
at Sec. 125.84(f) under which the Director could address these effects
in certain circumstances. Moreover, existing programs, such as the CWA
section 404 program and programs under State law, include requirements
that address many of the environmental impact concerns associated with
the construction of new intakes.
[[Page 49073]]
C. What Entrainment and Impingement Impacts Caused by Cooling Water
Intake Structures Have Been Documented?
Research of the available literature and section 316(b)
demonstration studies obtained from NPDES permit files has identified
numerous documented cases of impacts associated with impingement and
entrainment and the subsequent effects of these actions on populations
of aquatic organisms. For example, specific losses associated with
individual steam electric generating facilities include 3 billion to 4
billion larvae and postlarvae per year \11\; 23 tons of fish and
shellfish of recreational, commercial, or forage value lost each year
\12\; and 1 million fish lost during a 3-week study period.\13\ Several
studies estimating the impact of entrainment on populations of key
commercial or recreational fish have predicted declines in population
size. Studies of entrainment at five Hudson River power plants
predicted year-class reductions ranging from 6 percent to 79 percent
depending on the fish species.\14\ A modeling effort looking at the
impact of entrainment mortality on the population of a selected species
in the Cape Fear estuarine system predicted a 15 to 35 percent
reduction in the species' population.\15\
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\11\ EPA, ``Brunswick Nuclear Steam Electric Generating Plant of
Carolina Power and Light Company, Historical Summary and Review of
Section 316(b) Issues,'' EPA Region IV, September 19, 1979.
\12\ EPA, ``Findings and Determination under 33 U.S.C. Section
1326, In the Matter of Florida Power Corporation Crystal River Power
Plant Units 1, 2, and 3, NPDES Permit No. FL0000159,'' Environmental
Protection Agency Region IV, December 2, 1986.
\13\ Nancy J. Thurber, and David J. Jude, ``Impingement Losses
at the D.C. Cook Nuclear Power Plant during 1975-1982 with a
Discussion of Factors Responsible and Possible Impact on Local
Populations,'' Special Report No. 115 of the Great Lakes Research
Division, Great Lakes and Marine Waters Center, The University of
Michigan, 1985.
\14\ John Boreman and Phillip Goodyear, ``Estimates of
Entrainment Mortality for Striped Bass and Other Fish Species
Inhabiting the Hudson River Estuary,'' American Fisheries Society
Monograph 4:152-160, 1988.
\15\ EPA, Brunswick Nuclear Steam Electric Generating Plant of
Carolina Power and Light Company, Historical Summary and Review of
Section 316(b) Issues,'' Environmental Protection Agency Region IV,
1979.
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The following are among other more recent documented examples of
impacts occurring in existing facilities as a result of cooling water
intake structures. Also see the discussion of the benefits of today's
proposed rule in Section X.B.
Brayton Point. PG&E Generating's Brayton Point plant (formerly
owned by New England Power Company) is located in Mt. Hope Bay, in the
northeastern reach of Narragansett Bay, Rhode Island. Due to problems
with electric arcing caused by salt drift and lack of fresh water for
the closed-cycle recirculating cooling water system, the company
switched Unit 4 from a closed-cycle recirculating to a once-through
cooling water system in 1985. The modification of Unit 4 resulted in a
45 percent increase in cooling water intake flow at the plant. Studies
designed to evaluate whether the cooling water intake structure was
affecting fish species abundance trends found that Mt. Hope Bay
experienced a progressively steady rate of decline in finfish species
of recreational, commercial, and ecological importance.\16\ In
contrast, species abundance trends were relatively stable in adjacent
coastal areas and portions of Narragansett Bay that are not influenced
by the cooling water intake structure. Further strengthening the
evidence that the intake of cooling water was contributing to the
documented declines was the finding that the rate of population decline
increased substantially with the full implementation of the once-
through cooling mode for Unit 4. The modification of Unit 4 is
estimated to have resulted in an 87 percent reduction in finfish
abundance based on a time series-intervention model. These impacts were
associated with both impingement and entrainment, as well as the
thermal discharge of cooling water. Data indicate that annual
entrainment at Brayton Point averages 4.9 billion tautog eggs, 0.86
billion windowpane eggs, and 0.89 billion winter flounder larvae each
year. Using adult equivalent analyses, the entrainment and impingement
of fish eggs and larvae in 1994 translated to a loss of 30,885, 20,146,
and 96,507 pounds of adult tautog, windowpane, and winter flounder,
respectively.
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\16\ Mark Gibson, ``Comparison of Trends in the Finfish
Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to
Operations of the New England Power Brayton Point Station,'' Rhode
Island Division Fish and Wildlife, Marine Fisheries Office, June
1995 and revised August 1996.
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San Onofre Nuclear Generating Station. The San Onofre Nuclear
Generating Station (SONGS) is on the coastline of the Southern
California Bight, approximately 2.5 miles southeast of San Clemente,
California.\17\ The marine portions of Units 2 and 3, which are once-
through, open-cycle cooling systems, began commercial operation in
August 1983 and April 1984, respectively. Since then, many studies have
been completed to evaluate the impact of the SONGS facility on the
marine environment.
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\17\ Southern California Edison, ``Report on 1987 Data: Marine
Environmental Analysis and Interpretation, San Onofre Nuclear
Generating Station,'' 1988.
\18\ MRC, ``Final Report of the Marine Review Committee to the
California Coastal Commission,'' Marine Review Committee, Document
No. 89-02, August 1989.
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Studies of kelp beds in nearshore waters in the vicinity of the
SONGS facility determined that the operation of cooling water intake
structures resulted in a 60 percent (80-hectare) reduction in the area
covered by moderate-to high-density kelp.\18\ Studies indicated that
poor survival and lack of development of early life stages essential to
the replenishment of the adult population resulted from increased
turbidity of the waters in the vicinity of SONGS due to withdrawal of
inshore turbid water for cooling purposes. The loss of kelp was also
determined to be detrimental to fish communities associated with the
kelp forests. For example, fish living close to the bottom of the San
Onofre kelp bed experienced a 70 percent decline in abundance. Fish
living in the water column in the impact areas had a 17 percent loss in
abundance and a 33 percent decline in biomass relative to control
populations. The abundance of large invertebrates in kelp beds also
declined for many species, particularly snails.
In a normal (non-El Nino) year, some 110 tons of midwater fish
(primarily northern anchovy, queenfish, and white croaker) \19\ are
entrained at SONGS, of which at least 41 percent are killed during
plant passage. The fish lost include approximately 350,000 juveniles of
white croaker, a popular sport fish; this number represents 33,000
adult individuals or 3.5 tons of adult fish. Within 3 kilometers of
SONGS, the density of queenfish and white croaker in shallow-water
samples decreased by 34 and 63 percent, respectively. Queenfish
declined by 50 to 70 percent in deepwater samples.
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\19\ S. Swarbrick and R.F. Ambrose, ``Technical Report C:
Entrapment of Juvenile and Adult Fish at SONGS,'' prepared for the
Marine Review Committee, 1989.
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Existing and historical studies like those described in this
section provide only a partial picture of the severity of environmental
impact associated with cooling water intake structures. Most important,
the methodologies for evaluating adverse environmental impact used in
the 1970s and 1980s, when most section 316(b) evaluations were
performed, were often inconsistent and incomplete. For example, some
studies reported only gross fish losses; others reported fish losses
based on species and life stage; still others reported percent losses
of the associated population or subpopulation (e.g.,
[[Page 49074]]
young-of-year fish). Recent advances in environmental assessment
techniques now provide better tools to monitor for impingement and
entrainment and to detect impacts associated with the operation of
cooling water intake structures.
D. What Constitutes Adverse Environmental Impact Under This Proposed
Rule?
As discussed above, the 1977 section 316(b) draft guidance defined
the term ``adverse environmental impact.'' It states that ``[a]dverse
aquatic environmental impacts occur whenever there would be entrainment
or impingement damage as a result of the operation of a specific
cooling water intake structure.'' That definition also states, however,
that ``[t]he critical question is the magnitude of any adverse
impact.'' The guidance lists specific factors relevant for determining
the long- and short-term magnitude of any adverse impacts.\20\ The 1977
Draft Guidance established a process under which cooling water intake
structures were evaluated on a case-by-case basis to determine the
level of environmental impact occurring and the appropriate best
technology available to minimize adverse environmental impact.\21\
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\20\ Under the 1977 Draft Guidance, the magnitude of any adverse
impact should be estimated in terms of both short-term and long-term
impact with reference to the following factors: (1) Absolute damage;
(2) percent damage; (3) absolute and percentage damage to any
endangered species; (4) absolute and percent damage to any critical
aquatic organism; (5) absolute and percentage damage to commercially
valuable and/or sport fisheries yield; and (6) whether the impact
would endager (jeaopardize) the protection and propagation of a
balanced population of shellfish and fish in and on the body of
water from which the cooling water is withdrawn (long-term impact).
(Draft Guidance, U.S. EPA, 1977, Definitions and Concepts p. 15).
\21\ For example, the 1977 Draft Guidance states ``[t]he exact
point at which adverse aquatic impact occurs at any given plant site
or water body segment is highly speculative and can only be
estimated on a case-by-case basis by considering the species
involved, magnitude of the losses, years of intake operation
remaining, ability to reduce losses, etc.'' (Draft Guidance, U.S.
EPA, 1977, p. 11).
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The framework and definitions in the 1977 Draft Guidance recommend
that facilities should initially determine the incremental
environmental impact of each cooling water intake structure on the
populations of affected species or organisms and that BTA be applied
only where it is determined that such incremental impacts are deemed to
constitute ``adverse environmental impact.'' However, both the decision
process and the evaluation criteria contained in the guidance have
proven very difficult to apply consistently. The initial determination
of environmental impact has often relied on population modeling, which,
given its inherent complexity, has yielded ambiguous or debatable
results. One result has been that many section 316(b) permitting
decisions have predominantly focused on determining whether a cooling
water intake structure is causing an adverse environmental impact.
Given that both the methods for making such determinations and the
standard regarding what constitutes an ``adverse'' environmental impact
were not precisely defined, permitting authorities have had to exercise
significant judgment and focus significant time and effort to determine
what requirements should be imposed under section 316(b).
In developing this proposal, EPA considered several alternatives
for defining adverse environmental impact associated with the operation
of cooling water intake structures. These alternatives are discussed
below. EPA also considered whether a specific definition of adverse
environmental impact should be included in the regulation or developed
as guidance. The regulatory language in today's proposed rule does not
include a definition of adverse environmental impact. However, the
Agency is considering promulgating each of the alternatives discussed
below as part of the final regulation and, thus, each should be viewed
in a regulatory context. The Agency also might ultimately decide to
publish one of these alternatives in guidance that supports the final
rule. EPA is also considering taking no action regarding the definition
of adverse environmental impact.
Though EPA is not proposing a definition of adverse environmental
impact, the Agency did consider a number of alternatives for either
defining adverse environmental impact or determining a threshold for
the level of environmental impact deemed to be adverse. Consistent with
this approach, EPA conceptualized adverse environmental impact in a
manner that would not characterize the threshold for being considered
``adverse'' as the impingement or entrainment of a single organism, but
also would not result in a threshold that is so high that it would
allow for the impingement or entrainment of millions of organisms,
larvae, or eggs. Thus, EPA considered adverse environmental impact as a
level of impingement or entrainment of aquatic organisms that is
recurring and nontrivial.
One approach EPA considered would be to define adverse
environmental impact as the impingement or entrainment of one (1)
percent or more of the aquatic organisms in the near-field area as
determined in a 1-year study. Under this approach, the near field would
be defined as that area immediately around the intake structure from
which organisms are drawn onto the screens or into the cooling system.
EPA considers the establishment of a one percent threshold a reasonable
means to protect about 99 percent of the organisms in the water column
under the influence of the cooling water intake structures. A threshold
of one percent represents a reasonable approach for defining adverse
impact and is consistent with the approach used by the water quality-
based regulatory programs within EPA for developing the necessary
levels of protection to safeguard aquatic communities. EPA seeks
comment on this alternative. Regulatory language such as the following
could be used to implement this approach:
Adverse environmental impact means the impingement or
entrainment of one (1) percent or more of the aquatic organisms from
the area around the cooling water intake structure from which
organisms are drawn onto screens or other barriers at the entrance
to a cooling water intake structure or into the cooling system, as
determined in the Source Water Baseline Biological Characterization.
(See Section IX.A.1 for a discussion of the Source Water Baseline
Biological Characterization.)
A second alternative for defining adverse environmental impact for
purposes of section 316(b) would use the definition of adverse
environmental impact provided in the 1977 Draft Guidance, which is
discussed above. Under this approach, adverse environmental impact
would be defined as impingement and entrainment and the key inquiry
would be an assessment of the magnitude of such effects. EPA could
clarify through guidance when the magnitude of environmental impact is
great enough to be deemed adverse.
Under a third alternative EPA is considering, adverse environmental
impact would be deemed to occur whenever aquatic organisms are impinged
or entrained as a result of the operation of a cooling water intake.
Under this alternative, ``adverse environmental impact'' could be
defined as ``any impingement or entrainment of aquatic organisms.''
This approach would be similar to the approach that the State of New
York has taken in implementing its section 316(b) program, based on the
State's judgment that both impingement and entrainment result in
harmful environmental effects that diminish valuable public
[[Page 49075]]
resources.\22\ Such effects could have the potential to reduce the
population of indigenous species; change the species mix because some
species are more susceptible to impingement and entrainment than
others; might increase nuisance species; harm and kill endangered and
threatened species; damage critical aquatic organisms, including
important elements of the food chain; and reduce commercial and sport
fisheries. This approach also would provide a level of protection
analogous to the level of protection provided by the Agency's criteria
methodology for protecting aquatic life from toxic effects,
particularly from acute lethality.23 24
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\22\ NYDEC, ``Clean Water Act Section 316(b), statement provided
to U.S. EPA at public meeting to discuss adverse environmental
impacts resulting from cooling water intake structures,'' New York
State Department of Environmental Conservation, Division of Fish,
Wildlife, and Marine Resources, June 29, 1998.
\23\ EPA, Technical Support Document for Water Quality-based
Toxics Control, U.S. Environmental Protection Agency, Office of
Water, EPA-823-B-94-005a, August 1994.
\24\ Advanced Notice of Proposed Rulemaking: Water Quality
Standards Program, 63 FR 3672, July 7, 1998.
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Yet another alternative would be to define adverse environmental
impact in relation to reference sites for the type of ecosystem in
which the facility proposes to locate the intake structure and then to
evaluate the projected impact of the intake structure on the abundance,
diversity, and other important characteristics of the aquatic community
that would be expected to inhabit the site. This approach would be
analogous to the Agency's recommended approach for the adoption of
biocriteria into State water quality
standards.25 26 27 28 29 The Agency invites comment on
implementation issues that might be associated with determining the
nexus between the projected impacts of the cooling water intake
structure and the reference conditions.
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\25\ Michael T. Barbour et al., ``Measuring the attainment of
biological integrity in the USA: a critical element of ecological
integrity,'' Hydrobiologia 422/423:453-464, 2000.
\26\ EPA, Biological Criteria: National Program Guidance for
Surface Waters, U.S. Environmental Protection Agency, Office of
Water Regulations and Standards, EPA-440/5-90-004, April 1990.
\27\ EPA, Biological Criteria: Technical Guidance for Streams
and Small Rivers, U.S. Environmental Protection Agency, Office of
Water, EPA 822-B-96-001, May 1996.
\28\ EPA, Lakes and Reservoir Bioassessment and Biocriteria:
Technical Guidance Document, U.S. Environmental Protection Agency,
Office of Water, EPA 841-B-98-007, August 1998.
\29\ EPA, Draft Estuarine and Coastal Marine Waters
Bioassessment and Biocriteria Technical Guidance, U.S. Environmental
Protection Agency, Office of Water, July, 2000.
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The Agency also requests comment on a definition of adverse
environmental impact that would focus on (1) the protection of
threatened, endangered, or otherwise listed species; (2) protection of
socially, recreationally, and commercially important species; and (3)
protection of community integrity, including structure and function.
EPA is aware that the Utility Water Action Group intends to develop,
and submit to EPA following peer review, one or more practical
definitions of adverse environmental impact and the measures for
assessing when adverse environmental impact is occurring. The measures
may vary depending on the waterbody type. EPA will consider the output
of this effort, if available in time, and as appropriate, as it
develops the final rule.
Each of the preceding definitions of adverse environmental impact
addresses impact on the aquatic environment. The Agency invites comment
on whether it should define adverse environmental impact more broadly
and consider nonaquatic adverse environmental impact as well. For
example, some of the technologies that may be used to reduce
impingement and entrainment may result in air emissions such as the
drift of salts, other minerals or chemicals onto vegetation,
potentially with harmful effects. Some technologies may reduce the
efficiency of an electricity generating or manufacturing facility,
potentially leading to increased energy consumption and increased
emission of carbon dioxide or other ``greenhouse'' gases, and increased
resource extraction activities that may have a harmful effect on lands
and natural resources. Should the Agency decide to consider nonaquatic
impact, it could do so in conjunction with any of the potential
definitions of adverse environmental impact described above that
address impact on the aquatic environment.
Finally, it is important to clarify and invite comment on the
Agency`s current interpretation of the relationship of adverse
environmental impact under section 316(b) and the objective of section
316(a) to ensure protection and propagation of a balanced indigenous
population of shellfish, fish, and wildlife. The Agency considers the
objective stated in section 316(b) to minimize adverse environmental
impact from cooling water intake structures to be distinct from that of
section 316(a) to ensure protection and propagation of a balanced
indigenous population of shellfish, fish, and wildlife. The Agency has
long maintained that adverse environmental impact from cooling water
intake structures must be minimized to the fullest extent
practicable,\30\ even in cases where it can be demonstrated that the
standard applicable under section 316(a) is being met.31 32
Thus the objective of section 316(b) is more protective than that of
section 316(a). However, EPA also requests comment on adapting the
section 316(a) standard for purposes of section 316(b) and defining
adverse environmental impact as impacts likely to interfere with the
protection and propagation of a balanced indigenous population of fish,
shellfish, and wildlife.
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\30\ In re Brunswick Steam Electric Plant, Decision of the
General Counsel No. 41, June 1, 1976.
\31\ In re Public Service Co. of New Hampshire, (Seabrook
Station Units 1 and 2) (Decision of the Administrator) 10 ERC 1257,
1262 (June 17, 1977).
\32\ In re Central Hudson Gas and Elec. Corp., Decision of the
General Counsel No. 63, July 29, 1977.
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EPA invites comment on all aspects of these alternatives for
defining adverse environmental impact associated with cooling water
intake structures and whether such a definition should be included as
part of the regulation or stated as guidance.
VIII. Best Technology Available for Minimizing Adverse
Environmental Impact at New Facilities
A. What Is the Best Technology Available for Minimizing Adverse
Environmental Impact at New Facilities?
1. What Are the Proposed and Alternative Regulatory Frameworks for
Today`s Proposed Rule?
Today`s proposed rule would establish national minimum performance
requirements for the location, design, construction, and capacity of
cooling water intake structures at new facilities to minimize adverse
environmental impact. Under the proposed rule, EPA would establish
requirements for minimizing adverse environmental impact from cooling
water intake structures based on the type of water body in which the
intake structure is located, the location of the intake in the water
body, the volume of water withdrawn, and the design intake velocity.
EPA would also establish additional requirements or measures for
location, design, construction, or capacity that might be necessary to
minimize adverse environmental impact. The best technology available to
minimize adverse environmental impact might constitute a technology
suite, which would vary depending on the type of water body in which a
cooling water intake structure is located as well as the location of
the cooling water
[[Page 49076]]
intake structure within the water body. Under this proposal, EPA would
set technology-oriented performance requirements; the Agency would not
mandate the use of any specific technology.
Exhibit 1 displays the framework for EPA's proposed section 316(b)
new facility rule. Previously, EPA solicited public comment on a three-
tiered framework for existing facilities. The framework proposed today
for new facilities has evolved from Tier 1 of that framework. Under the
proposed rule, EPA would group water bodies into four categories: (1)
freshwater rivers or streams, (2) lakes or reservoirs, (3) tidal rivers
or estuaries; and (4) oceans. The Agency considers location to be the
most important factor in addressing adverse environmental impact caused
by cooling water intake structures. Today's proposed rule would define
the term ``freshwater river or stream'' to mean a lotic (free-flowing)
system that does not receive significant inflows of water from oceans
or bays due to tidal action (see Sec. 125.83). EPA proposes to define
the term ``lake'' to mean 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 may 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 may be fed by
rivers, streams, springs, and/or local precipitation.
BILLING CODE 6560-50-P
[[Page 49077]]
[GRAPHIC] [TIFF OMITTED] TP10AU00.000
BILLING CODE 6560-50-C
[[Page 49078]]
EPA is proposing to define the term ``reservoir'' to mean a natural
or constructed basin where water is collected and stored (see
Sec. 125.83). Consistent with CWA section 104(n)(4), EPA is proposing
to define the term ``estuary'' as all or part of the mouth of a river
or stream or other body of water having unimpaired natural connection
with open sea and within which seawater is measurably diluted with
fresh water derived from land. As estuaries are strongly affected by
tidal action, EPA's proposing to specify further that the salinity of
an estuary exceeds 0.5 part per thousand (by mass), but is less than 30
parts per thousand (by mass) (see Sec. 125.83). EPA is proposing to
define the term ``tidal river'' to mean the most seaward reach of a
river or stream where the salinity is less than or equal to 0.5 parts
per thousand (by mass) at a time of annual low flow and whose a surface
elevation responds to the effects of coastal lunar tides (see
Sec. 125.83). Finally, EPA proposes to define the term ``ocean'' to
mean marine open coastal waters with salinity greater than or equal to
30 parts per thousand (by mass) (see Sec. 125.83).\33\ The Agency is
not using the definition of ``ocean'' found at CWA 502(10) because that
definition refers to the high seas beyond the contiguous zone and the
marine environment within the contiguous zone. Impacts from cooling
water intake structures are most likely to occur in ocean waters in the
near coastal areas.
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\33\ Salinity values are based on the Venice System, a well-
known estuarine zonation system. See EPA, Draft Estuarine and
Coastal Marine Waters Bioassessment and Biocriteria Technical
Guidance, U.S. Environmental Protection Agency, Office of Water,
July, 2000.
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The design and capacity of the intake structure are important
factors that affect the velocity or speed at which the water passes
through the screen or other barrier at the entrance to the cooling
water intake structure.
Under today's proposed rule, minimum flow and velocity requirements
would be applied based on the actual placement of the cooling water
intake structure within the particular water body types. Because
different water body types have different potential for adverse
environmental impact, the requirements proposed to minimize adverse
environmental impact would vary by water body type. Some would include
minimum requirements in addition to flow and velocity. For example,
estuaries and tidal rivers have the highest potential for adverse
impact because they contain essential habitat and nursery areas for
many species. Therefore, these areas require the most stringent minimum
controls including measures in addition to flow and velocity
requirements. In contrast to estuaries and tidal rivers, some lakes
have low productive areas such as the profundal zone, which would have
low potential for adverse environmental impact, thus requiring lesser
minimum controls to minimize adverse environmental impact.
Under some scenarios, depending on the type of water body or where
the intake structure is located within the water body, EPA is proposing
to require additional design and construction technologies that would
increase the survival rate of impinged biota or to further reduce the
amount of entrained biota.
In general, the capacity requirement would restrict the maximum
flow a facility may withdraw to a percentage of the annual mean flow or
volume of the water body. For rivers, an additional requirement would
limit the capacity of the cooling water intake structure so that it
withdraws no more than a certain percentage of the lowest average
seven-consecutive-day low flow with an average frequency of once in 10
years (7Q10). In some circumstances, EPA would also restrict the
capacity of the cooling water intake structure to a level commensurate
with that which could be attained by a closed-cycle recirculating
system using minimized make-up and blowdown flows. After location, the
flow or capacity of a cooling water intake structure is the primary
factor affecting the entrainment of organisms, which is often
considered the most difficult impact to control. Organisms entrained
include small species of fish and immature life stages (eggs and
larvae) of many species that lack sufficient mobility to move away from
the area of the intake structure. Limiting the volume of the water
withdrawn (flow) from a source can limit the potential for these
organisms to be entrained.
Section 316(b) authorizes EPA to impose limitations on the volume
of the flow of water withdrawn through a cooling water intake structure
as a means of addressing ``capacity.'' In re Brunswick Steam Electric
Plant, Decision of the General Counsel No. 41 (June 1, 1976). Such
limitations on the volume of flow are consistent with the dictionary
definition of ``capacity'' \34\, the legislative history of the Clean
Water Act \35\, and the 1976 regulations.\36\ Id. Indeed, as Decision
of the General Counsel No. 41 points out, the major environmental
impacts of cooling water intake structures are those affecting aquatic
organisms living in the volumes of water withdrawn through the intake
structure. Therefore, regulation of the volume of the flow of water
withdrawn also advances the objectives of section 316(b).
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\34\ ``Cubic contents; volume; that which can be contained.''
Random House Dictionary of the English Language, cited in Decision
of the General Counsel No. 41.
\35\ Legislative History of the Water Pollution Control Act
Amendments of 1972, 93d Cong., 1st Sess., at 196-7 (1973).
\36\ 40 CFR 402.11(c) (definition of ``capacity''), 41 FR 17390
(April 26, 1976).
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Today's proposed rule would also establish requirements that
address velocity. For most locations, a design intake velocity
requirement would restrict the through-screen or through-technology
velocity to 0.5 ft/s. Intake velocity is one of the key factors that
affects the impingement of fish and other aquatic biota. Velocity is
easily addressed during the design and construction phase of a cooling
water intake structure. The appropriate design of the intake structure
relative to intake flow can minimize velocity. Alternatively, the
facility can install certain hard technologies (e.g., wedge wire
screens and velocity caps) to change the configuration of the structure
so that the effects of velocity on aquatic organisms are minimized.
However, EPA is aware that some stakeholders have expressed concern
with generally imposing national requirements on velocity and have
argued that this may even restrict a facility's flexibility in
designing an intake structure that minimizes adverse environmental
impact while meeting the needs of the facility. EPA requests comment on
its proposed velocity limitation of 0.5 fps, including information on
specific situations or technologies for which this limit would pose a
problem.
When the intake structure is located within the littoral zone, EPA
would broaden the suite of technologies a facility would be required to
employ, as well as increase the stringency of the requirements. This
would improve the survivability of impinged organisms and reduce the
rate of entrained organisms, thus furthering the statutory objective of
minimizing adverse environmental impact. In these situations the
additional minimal controls are necessary to minimize adverse
environmental impact because the littoral zone is generally the area
where aquatic organisms are the most abundant and most susceptible to
impingement and entrainment.
[[Page 49079]]
Today's proposed rule would provide sound direction to permit
writers that specifies minimum technology requirements, targeted to
particular types of water bodies, for use in section 316(b)
determinations. This would help the Directors implement consistent,
protective decisions. The requirements proposed in today's proposed
rule are protective on a national level. However, as further discussed
at VIII.A.7., EPA recognizes that an individual facility might have a
unique or site-specific environmental characteristic such that the
national requirements might not achieve the objective of minimizing
adverse environmental impact. For example, a migratory species
traveling past a particular cooling water intake structure at a
facility that does not cause adverse environmental impact in the
absence of such migrations.
It is the Agency's intent that permitting authorities familiar with
the unique situation in their areas have the flexibility, on a case-by-
case basis, to implement additional measures under this proposal to
achieve the core requirement of section 316(b), which is to minimize
adverse environmental impact. Measures that the Agency deems
appropriate would include, but not be limited to, seasonal flow
restrictions that result in short term plant shutdowns during spawning
or migration periods. Additional control measures also might be needed
to address multiple intakes on a water body or the presence of
regionally important species (e.g., commercially and recreationally
valuable species or aquatic organisms ecologically significant to the
structure and function of local aquatic communities). See proposed
Sec. 125.84(f). In addition, consistent with existing NPDES program
requirements, EPA also proposes that the Director must include permit
requirements relating to the location, design, construction or capacity
of a cooling water intake structure at a new facility necessary to
ensure attainment of water quality standards. See proposed
Sec. 125.84(g).
EPA invites comments on all aspects of the proposed regulatory
framework to implement section 316(b) so as to ensure that individual
permit decisions result in the minimization of adverse environmental
impact and attainment of water quality standards.
EPA recognizes that the foregoing approach differs significantly
from the site-specific approaches used in the past in implementing
section 316(b). For example, EPA has not previously attempted to
establish minimum flow or velocity requirements for broad classes of
water bodies. However, based in large measure on the Agency's
experience in attempting to implement section 316(b) on a wholly site-
specific basis, the Agency is today proposing this new approach.
The existing case-by-case approach to section 316(b) decision-
making has proven difficult to implement for several reasons. A variety
of different types of steam electric generating facilities and many
different categories of manufacturing facilities (including pulp and
paper manufacturers, chemicals and allied products manufacturers,
petroleum and coal products manufacturers, primary metals
manufacturers, and 14 additional categories) use cooling water and may
potentially have cooling water intake structures.
The historical case-by-case approach requires significant resources
on the part of the regulatory authorities that must implement section
316(b) requirements. The historical decision-making process requires
that each regulated facility must develop, submit, and refine studies
that characterize or estimate potential adverse environmental impact.
Such studies can take several years to complete and require the support
of a multi-disciplinary team. In addition, given the iterative nature
of the assessment process, industry as well as EPA regional and State
regulatory authorities must expend significant resources assessing
study plans and methods for characterizing the environmental impact
occurring at each facility and evaluating those data to determine what
constitutes BTA for each specific facility. For example, the assessment
of data needs and sufficiency might involve site visits, inspections,
follow-up information gathering, and study review and modification. The
resource requirements of the historical approach have also served as a
disincentive to revisiting section 316(b) permit conditions during each
renewal (typically every 5 years). Given that most facilities that use
cooling water intake structures became operational before 1980, EPA
believes this reluctance to fully reconsider permit conditions in light
of new technologies is a significant concern. On the other hand, EPA
also recognizes that some stakeholders believe that there are
advantages to a site-specific approach. These stakeholders believe that
the potential for a cooling water intake structure to cause adverse
environmental impact, and the specific technology that would best
minimize such impacts at reasonable cost is highly dependent on site-
specific factors. These include waterbody characteristics, the specific
locations of the structure, which species are present, weather, and
other relevant factors. These stakeholders believe a site-specific
approach such as that which has been used historically may allow
stakeholders and permitting authorities to identify technology options
for minimizing adverse environmental impact at a particular site at
significantly less cost than would be possible through implementation
of consistent requirements, within broad environmental categories,
stringent enough to minimize adverse environmental impact at all sites.
Many industry stakeholders have indicated that in their view the costs
of producing comprehensive site-specific studies in support of 316(b)
regulatory compliance, while significant, has been money well spent.
The historical case-by-case approach to section 316(b) decision-
making also might result in permitting decisions that are less
consistent than they would be if national requirements were in place.
The case-by-case approach results in less predictability regarding what
is or may be required for a particular facility, which makes planning
difficult for industry and leaves regulatory agencies uncertain about
the appropriate requirements for particular water bodies or facilities.
Without Federal regulations, Directors and States must look to Agency
guidance and past permit actions to inform their decisions. Absent
national requirements, State officials often lack authoritative
guidance for their own regulatory efforts. Only a few NPDES-authorized
States have specifically addressed cooling water intake structure
technology in statutes or regulations. Some States and EPA regions have
required significant section 316(b) studies to be performed by
facilities, whereas in other cases determinations have been based on
limited actual background and ecological data. Some stakeholders
believe that the need for consistency and guidance for State officials
need not be addressed only through binding regulations. These
stakeholders believe that comprehensive guidance, that provides needed
technical and methodological support to permit writers and facilities
alike can, to a large extent, fulfill the same function while at the
same time preserving flexibility to adopt cost effective approaches to
minimize adverse environmental impact at a particular site.
EPA has already received suggestions from Stakeholders that the
Agency adopt a more case-by-case approach to this proposed rule.
Therefore, the
[[Page 49080]]
Agency also invites comment on a rule framework that would resemble the
framework the Agency proposed in the 1970s. EPA would implement section
316(b) on a case-by-case, site specific basis, but the Agency would
establish specific decision criteria that the Director would have to
consider when determining the appropriate BTA for minimizing adverse
environmental impact. First the Director would determine whether an
adverse environmental impact is or is not occurring. If an impact is
occurring, the Director would consider a number of factors in
determining what would constitute BTA and whether the facility is
minimizing adverse environmental impact from cooling water intake
structures. Regulatory language like the following could be used to
implement this approach:
The director must determine whether a cooling water intake
structure is minimizing adverse environmental impact based on the
consideration of:
(1) The composition and vulnerability of the biological
communities within the cooling water intake structure's zone of
influence;
(2) The importance of the source water body to the surrounding
biological community, including the presence of spawning sites,
nursery/forage areas, and areas necessary for critical stages in the
life cycle of aquatic organisms;
(3) Potential impingement of aquatic organisms based on the
design intake velocity;
(4) Potential entrainment of small aquatic organisms based on
the intake water flow;
(5) Existing or potential recreational, commercial, and
subsistence fishing, including finfishing and shellfishing;
(6) Other factors relating to the adverse environmental impact
of the intake, as may be appropriate.
EPA invites comment on the case-by-case approach to determine BTA
for minimizing adverse environmental impact.
One variation on this approach that might well balance the need to
provide clarity and consistency with the need to allow for some site-
specific flexibility would be to establish a rebuttable presumption
that the requirements of the proposed rule (or some other set of
uniform national requirements based on this proposal) reflect BTA, but
then allow a new facility, at its option and with the full burden of
proof resting on the facility, to provide a demonstration that due to
site-specific conditions at the site some alternative technology or
suite of technologies would minimize adverse environmental impact.
Under this approach, the facility would be required to demonstrate
during the permit proceeding that the facility will minimize adverse
environmental impact without complying with some or all of the proposed
requirements relating to flow, intake velocity, and additional design
and construction technologies. Requests for alternate technology
requirements would need to be accompanied by data and information that
demonstrate clearly and conclusively that the facility will minimize
adverse environmental impact without complying with the proposed
requirements. If EPA were to adopt this approach, EPA would provide
guidance to facilities and permit writers on available alternative
technology requirements and the type of site-specific conditions under
which they may be appropriate to minimize adverse environmental impact,
and on factors to consider in determining whether a proposed set of
alternative requirements would minimize adverse environmental impact.
EPA would also address the type of documentation facilities would need
to provide in order to support a request for alternative technology
requirements based on site-specific conditions.
If EPA adopted such an approach, language such at the following
would be added to the regulation:
It shall be presumed that the requirements of Sec. 125.84(a)
through (e) reflect the best technology available for minimizing
adverse environmental impact for all facilities to which this
regulation applies. However, any new facility subject to these
regulations may request that alternative technology-based
requirements be imposed in the permit based on site-specific
conditions. Alternative requirements shall be approved only if:
(1) There is an applicable requirement under Sec. 125.84(a)
through (e);
(2) Data and information specific to the facility and the
affected environment demonstrate clearly and convincingly that the
facility will minimize adverse environmental impact by complying
with the alternative requirements; and
(3) The alternative requirements will ensure compliance with
sections 208(e) and 301(b)(1)(C) of the Clean Water Act.
The burden is on the facility requesting the alternative
requirements to demonstrate clearly and convincingly that they will
minimize adverse environmental impact and that the other
requirements of (1) through (3) above are met.
This rebuttable presumption framework might also be integrated with
components of the other options for site-specific flexibility as
suggested by some stakeholders and discussed in this preamble,
including the option of allowing some kind of balancing of costs with
environmental benefits as part of the demonstration that an alternative
technology would minimize adverse environmental impact and/or allow
restoration or mitigation as part of a site-specific BTA determination.
EPA requests comment on the rebuttable presumption approach and how it
might best be implemented. Specifically, EPA requests comment on types
of site-specific conditions under which alternative technology
requirements may be appropriate to minimize adverse environmental
impact, factors that should be considered in determining whether a
proposed set of alternative requirements would minimize adverse
environmental impact, and specific methodologies for assessing adverse
environmental impact.
In addition to today's proposal, EPA is considering an alternative
based in whole or in part on a zero-intake flow (or nearly zero,
extremely low-flow) requirement commensurate with levels achievable
through the use of dry cooling systems. Under this alternative, a zero
or nearly zero-intake flow requirement based on the use of dry cooling
systems would be the primary regulatory requirement in either (1) all
waters of the U.S.; (2) within tidal rivers, estuaries, and the
littoral zone of freshwater rivers, lakes reservoirs and oceans; or (3)
within tidal rivers, estuaries, and within or near the littoral zone of
freshwater rivers, lakes, reservoirs and oceans. The Agency is also
considering subcategorizing the new facility regulation based on types
or sizes of new facilities and location within regions of the country
since climate may be one factor affecting the viability of dry cooling
technologies. In this scenario, the Agency would require flow rates
commensurate with use of dry cooling systems for certain types or sizes
of new facilities, and/or new facilities in certain locations, based on
the costs, efficiency, and consumption of energy that may be associated
with reducing withdrawals from waters of the U.S. to a level
commensurate with those achieved by dry cooling systems.
Dry cooling systems (towers) use either a natural or mechanical air
draft to transfer heat from condenser tubes to air. In wet cooling
systems that employ conventional wet cooling towers, cooling water that
has been used to cool the condensers is pumped to the top of a cooling
tower; as the heated water falls, it cools through an evaporative
process and warm, most 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.
Dry cooling towers have several advantages over wet cooling towers.
They do not consume water through evaporation, have no wastewater
discharge to affect water quality, do not
[[Page 49081]]
cause drift of salt or other minerals, do not require the use and
subsequent treatment of water conditioning chemicals or biocides, and
do not create a vapor plume. Further, as plants employing dry cooling
systems have no cooling water needs, they can be located near or in
cities and other areas with great demand for electricity irrespective
of the availability of large supplies of cooling water, thereby
reducing costs and power losses associated with transmitting
electricity over long distances. Dry cooling systems reduce the
impingement and entrainment of aquatic organisms associated with
cooling water use. For example, the State of New York estimates that
compared to a wet/dry hybrid cooling system, use of a dry cooling
system at a recently permitted 1,080 MW electricity generating facility
would reduce projected annual fish mortality at the facility from
24,500 to 1,000 American Shad, from 1.9 million to 76,000 River
Herring, from 1,200 to 50 Striped Bass, and from 23,000 to 950 White
Perch.\37\
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\37\ NYDEC, Interim Decision, Athens Generating Company, State
of New York Department of Environmental Conservation, No: 4-1922-
00055/00001, SPDES No: NY-0261009, June 2, 2000.
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On the other hand, as dry cooling systems use air rather than water
for cooling, dry cooling systems are generally less efficient than wet
cooling systems. Dry cooling systems perform most efficiently in colder
climates, where the temperature differential is greater between the
process water and the air used for cooling, and are generally less
efficient in warmer climates, though EPA is aware that such systems are
currently operating under desert conditions where air temperatures
frequently exceed 100 deg.F for extended periods. Because dry cooling
systems exhibit lower cooling efficiencies than wet systems, a dry
cooling system would be larger than a wet system with a comparable
cooling capacity. For example, a recent application filed with the
State of New York for a 1000 MW power plant indicated that two air-
cooled condensers would be needed to meet the cooling needs of the
proposed project, each one approximately 160 feet by 430 feet and
approximately 105 feet tall. For a wet-dry hybrid cooling system, two
cooling towers would be needed, each one approximately 50 feet by 300
feet and 60 feet tall.\38\
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\38\ Astoria Energy LLC Queens, New York Facility, Application
for Certification of a Major Electric Generating Facility Under
Article X of the New York State Public Service Law, Volume 1, June
2000.
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Dry cooling systems can cost as much as three times more to install
than a comparable wet cooling system. Dry cooling system operating
costs have been reported to range from less than or comparable to wet
systems to two or more times higher. For example, the Astoria Energy
LLC Queens application filed with the State of New York indicated that
a dry cooling system would cost $32 million more to install than a
hybrid wet-dry cooling system and $29 million more than a once-through
cooling system for a proposed 1000 MW plant. Operating costs would be
$30 million less for the dry cooling system than the hybrid wet-dry
system, and $19 million more than for a once-through cooling
system.\39\ The State of New York estimates that use of a dry cooling
system at the recently permitted 1,080 MW Athens Generating Company
facility would cost approximately $1.9 million more per year, over 20
years, than a hybrid wet-dry cooling system for a project with a total
projected cost of approximately $500 million. In addition, dry systems
generally are perceived to impose an energy penalty as compared to wet
cooling systems. However, there is some uncertainty regarding the
precise energy costs or penalty associated with the different types of
cooling systems. For example, at the Athens Generating Company
facility, New York State officials estimate a 1.4 to 1.9 percent
reduction in overall plant electrical generating capacity as a
consequence of using a dry cooling system versus a hybrid wet-dry
system.\40\ By contrast, the Astoria Energy Queens facility application
estimates that a dry cooling system would save approximately 0.5
percent in energy costs as compared to a hybrid wet-dry cooling system.
Other factors, including climatic conditions, may affect energy costs
associated with a particular type of cooling system. It has been
reported that plants using wet cooling systems in warm climates export
more power than comparably sized plants using dry cooling systems.
Likewise, a study of a pulverized coal plant in Denmark found net heat
conversion efficiencies of 45.9 percent and 44.5 percent for the plant
configured with a wet cooling tower and dry cooling tower respectively.
This corresponds to an average energy penalty of about 3 percent for
the dry cooling tower relative to the wet cooling towers.\41\ Changes
in energy consumption associated with dry cooling would result in
changed fuel consumption and therefore may result in changed emissions
of greenhouse gases.
---------------------------------------------------------------------------
\39\ Astoria Energy LLC Queens Facility Application.
\40\ NYDEC, Initial Post Hearing Brief, Athens Generating
Company, L.P., State of New York, Department of Environmental
Conservation, Case No. 97-F-1563, June 28, 1999.
\41\ Gordon R. Couch, ``Coal-fired Power Generation--Trends in
the 1990s,'' IEA Coal Research, London, UK, 1997.
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The Agency is aware that at this time dry cooling systems are
currently in use at over 60 electrical generation facilities world
wide; over 50 of these facilities are in North America. Moreover,
plants using dry cooling demonstrate a considerable variety in prime
mover technology including combined cycle, co-generation, and steam
turbine, as well as diversity in fuels used including coal, wood,
methanol, natural gas and waste. The operational facilities range in
size from 1 MW to a 645 MW facility. In addition, two facilities using
dry cooling have been recently permitted but are not yet operational,
one with a 580 MW capacity, the other (Athens Generating Company) with
a 1,080 MW capacity. Further, EPA has information that applications for
nine additional plants using dry cooling systems are pending. These
plants range in capacity from 170 MW to 1,100 MW.
At this time the Agency does not have sufficient information to
make a decision on whether to implement a zero or near zero intake-flow
requirement that would effectively require the use of dry cooling
technology. EPA is inviting comment on factors which may favor or
disfavor the use of dry cooling systems including any cost information
associated with any of these factors. The Agency also invites comment
on whether and how dry cooling could be a basis for BTA requirements.
In particular, the Agency invites comment on whether the Agency should
consider subcategorizing facilities proposed for regulation today and
requiring flows based on dry cooling for those facilities of a certain
size or in certain locations where dry cooling is a viable technology
at an economically practicable cost. For example, for the types and
sizes of facilities in areas where dry cooling has been employed at
facilities in operation, permitted, or slated for construction, the
Agency might determine that dry cooling is the best technology
available to minimize adverse environmental impact. EPA also invites
comment on regulatory approaches of this type based on hybrid wet-dry
cooling rather than dry cooling.
In developing the regulatory framework proposed today, EPA
considered an alternative under which
[[Page 49082]]
facility operators might have the flexibility to ``trade'' among
components of BTA to potentially achieve equivalent reductions in
adverse environmental impact at lower cost. For example, a facility
operator who reduced flow below the requirements specified in today's
proposal might then have the opportunity not to reduce velocity as
specified, or to install fewer additional design technologies. The
Agency invites comment on all aspects of an approach that would allow
trading among the components of BTA.
EPA also is considering a regulatory framework that would apply the
BTA requirements proposed for estuaries and tidal rivers to all
facilities, regardless of their location. This would ensure that the
same stringent controls are the nationally applicable minimum for all
water body types. In addition, all facilities would have to implement
technologies that maximize the survival of impinged adult and juvenile
fish and minimize the entrainment of eggs and larvae, and comply with
additional requirements established by the Director. Some stakeholders
assert that an approach that establishes a uniform, stringent set of
national BTA requirements is the only one permissible under section
316(b) as all parts of all waters of the U.S. require stringent BTA
requirements in order to minimize adverse environmental impact. These
stakeholders believe that section 316(b) is wholly technology-based,
that cooling towers are the best technology available for minimizing
adverse environmental impact, and that therefore, cooling towers must
be the basis for BTA requirements nationally.
EPA invites comment on all aspects of the regulatory framework and
the other approaches discussed herein.
Some stakeholders have suggested an alternative regulatory
framework in which section 316(b) implementation is accomplished
through site-specific examination of the risk of adverse environmental
impact and (assuming the cooling water intake structure poses some
reasonable risk of adverse environmental impact) site-specific
evaluation of potential BTA technologies.
Under one approach, the framework of the site-specific alternative
would consist of three tiers. In Tiers 1 and 2, the facility, in
consultation with the Director, would assess the potential for risk of
adverse environmental impact associated with the proposed cooling water
intake structure. Tier 1 would be both a screening and an assessment
tier that relies on existing information that is site-specific or
relevant to the adverse environmental impact determination. Tier 2
would focus on collection and analysis of additional information
collection activities, as necessary, to make the adverse environmental
impact determination. In Tier 3, which would assume that the Director
has found that the cooling water intake structure is reasonably likely
to pose risk of adverse environmental impact, the facility would assess
BTA alternatives, including an evaluation of costs and benefits. In
each tier, the facility would bear the burden of generating data and
analyses.
In Tier 1, the facility would examine the risk of adverse
environmental impact using certain types of existing information, such
as fisheries management data, multimetric biocriteria results,
operational and design specifications for the proposed cooling water
intake structure, or other pertinent and reliable information. The
initial steps in the Tier 1 analysis would be (1) review of cooling
water intake structure design and proposed operations, (2) selection of
``designated important species,'' (3) definition of a study population
of designated important species, and (4) identification of existing or
readily available information sources.
Selection of designated important species would be site-specific,
taking into consideration such factors as the species' likely
involvement with the cooling water intake structure and the
representativeness of the species in relation to the aquatic community.
Selection of designated important species would consider commercially
and recreationally important species, listed threatened and endangered
species, species otherwise identified for protection or management, and
food web species.
Based on existing information (where existing information is
scientifically valid and adequate to evaluate the potential effects of
the cooling water intake structure), including an assessment of the
planned cooling water intake structure's characteristics, its
geographic/hydrological setting, the nature of the biological
community, or other factors, the facility would make an initial
determination as to whether the information is adequate,
representative, and indicative of a low risk of adverse environmental
impact. If the Director agrees that there is a low risk, the proposed
cooling water intake structure would be BTA. If the Director finds the
existing information insufficient or finds that the risk of adverse
environmental impact is not low, the facility would proceed to Tier 2.
In determining whether there is a risk of adverse environmental
impact, the Director would consider the appropriate level of biological
significance to the individual species, which would generally be the
population level. The Director would consider whether the cooling water
intake structure effects pose a risk to the viability of the designated
important species populations and their ability to support existing
ecosystem functions. This would include adequate protection of (1) the
structure and function of the aquatic community, (2) commercially and
recreationally important species, and (3) threatened or endangered
species.
In Tier 2, the facility would conduct field studies for one of two
purposes, following two separate tracks. In Track A, a facility might
conduct special studies to provide adequate information to make a Tier
1 determination of its reasonable potential to cause adverse
environmental impact. In Track B, the facility might conduct
information collection activities (such as population modeling), as
necessary, to make a Tier 2 determination as to whether the cooling
water intake structure is reasonably likely to cause adverse
environmental impact. The facility would have primary responsibility
for study design and implementation, subject to securing approval of
the Director prior to commencing any study. The facility would have the
option of volunteering to perform restoration measures and having those
measures taken into account in evaluating the risk of adverse
environmental impact.
If a facility completes Tier 2 and the Director determines that the
proposed cooling water intake structure is not reasonably likely to
cause adverse environmental impact, the cooling water intake structure
would reflect BTA. If, on the other hand, a facility completes Tier 2
and the Director determines that the proposed cooling water intake
structure is reasonably likely to cause adverse environmental impact,
in Tier 3 the facility would assess a reasonable range of BTA
alternatives. Facilities would have the opportunity to evaluate
potentially feasible cooling water intake structure technologies to
address the specific adverse environmental impact, and also would have
the opportunity to develop new cooling water intake structure
technologies. At its option, a facility could perform a benefit/cost
analysis of the BTA candidate technologies. Otherwise, it could decide
to offer a cooling water intake structure technology or technologies as
BTA based on an initial performance assessment of their
characteristics. If a facility proceeds with the cost/benefit analysis,
BTA would be determined
[[Page 49083]]
through application of a ``reasonably proportional'' standard. Also,
the facility could propose restoration measures to address the adverse
environmental impact that could be used in place of, or as a supplement
to, BTA.
Another site-specific approach suggested by stakeholders would
allow new facilities applying for NPDES permits to have the option of
performing studies necessary to make a site-specific BTA determination.
This approach is comparable to the ``rebuttable presumption'' approach
described above. The extent and nature of such studies would be
determined by the proposed location of the cooling water intake
structure vis-a-vis the location factors EPA has proposed as indicative
of sensitivity. Proponents of this approach suggest that general study
design requirements appropriate for different types of water bodies
(i.e., freshwater rivers, lakes, reservoirs, estuaries and tidal
rivers, oceans, and the Great Lakes) and EPA could develop proposed
intake structure locations, using information provided by state-of-the-
art studies as conducted by the regulated community, research and
academic institutions, government agencies, and others.
Under this alternative suggested by stakeholders, studies would be
designed to predict likely entrainment and impingement effects, along
with other environmental effects associated with a proposed cooling
water intake structure configuration. The study would assess whether
those predicted effects are of a magnitude such that the Director can
conclude, after considering guidance that EPA would prepare, that the
effects are not reasonably likely to be ``adverse'' to the affected
aquatic population or community. In situations where the Director is
unable to conclude, with reasonable certainty, that there is no
reasonable likelihood of adverse environmental impact from the proposed
cooling water intake structure configuration, he or she would compare
the performance of the proposed alternative to the predicted
performance of other reasonably available technologies relative to the
design, location, construction, and capacity of the cooling water
intake structure. The Director would also assess the costs and benefits
(including the costs and benefits associated with other environmental
effects) of those alternatives whose performance is comparable to that
of the proposed alternative and would select as ``BTA'' that technology
or technologies whose costs and benefits are reasonably related, taking
into account the level of uncertainty in the available data. Consistent
with this approach, EPA could develop guidelines for performing cost/
benefit analyses that would minimize the need to collect extensive new
data to characterize the value of resources for which there is not an
existing market. These guidelines would facilitate reasonably
consistent, cost-effective decisions under this approach.
This approach is premised on the conclusion that national standards
and locational attributes alone cannot properly account for biological
factors, which are inherently site-specific and that the best
technology available for minimizing adverse environmental impact
location also is site-specific. The stakeholders advocating this
approach point out that among the factors that differ from site to site
are the risk of entrainment and impingement posed by a given cooling
water intake structure to different aquatic species and different life
stages; site-and species-specific factors that affect the sensitivity
of aquatic populations and communities to entrainment and impingement;
the need to balance the possible benefits, at the population or
community level, of reducing entrainment or impingement of a given
species or life stage versus possible adverse effects of the same
technology on other species or life stages; the need to consider and
balance potential benefits (and costs) of the proposed cooling water
intake structure technologies to aquatic resources versus potentially
adverse (or beneficial) effects of those technologies on other aspects
of the environment; and the possibility that the specific performance
requirements imposed by EPA would preclude use of the most
environmentally and economically cost-effective technology in some
cases. It has also been suggested that today's proposed framework
contains unnecessarily redundant measures for minimizing impingement
and entrainment, and that in the past, including in previous rules and
in guidance, EPA recognized the necessity of considering these factors
on a site-specific basis.
Finally, it has been suggested that such an alternative will
neither delay permitting of new facilities nor impose an undue burden
on State and Federal permit writers, especially if EPA develops
national guidance on the key issues (e.g., the nature of adverse
environmental impact, the nature and extent of site-specific effects
studies, and cost/benefit analytical issues) that will ensure timely
decisions and an appropriate level of consistency.
EPA requests comment on all aspects of the foregoing alternatives,
and will give full consideration to each as it develops the final rule.
2. Location
EPA has long recognized that the location of a cooling water intake
structure is one of the key factors that affects the environmental
impact caused by the intake structure. When cooling water is withdrawn
from sensitive biological areas, there is a heightened potential for
adverse environmental impact and therefore a heightened concern. EPA
has attempted in this proposal to identify the areas that are most
biologically productive or otherwise sensitive and to ensure that the
appropriate suite of technologies is applied to minimize adverse
environmental impact in those areas.
The optimal design requirement for location is to place the inlet
of the cooling water intake structure in an area of the source water
body where impingement and entrainment effects on organisms are
minimized (taking into account the location of the shoreline, the depth
of the water body, and the presence and quantity of aquatic organisms
or sensitive habitat). Although the most effective way to minimize
adverse environmental impact associated with cooling water intake
structures is to locate intakes away from areas with the potential for
high productivity, the Agency recognizes that this is not always
possible. Cooling water intake structures at new facilities located
inside these sensitive areas would generally require controls to
minimize adverse environmental impact.
EPA is proposing to require expansive BTA requirements in tidal
rivers, estuaries, and the ``littoral zone'' of freshwater rivers,
lakes, and reservoirs. In oceans, EPA is using the term ``littoral
zone'' broadly to include the ``euphotic'' areas of ``neritic'' waters.
These areas are the most productive of ocean environments. Neritic
waters are those over the continental shelf, and they include the areas
of marine fish and mammal migration. The euphotic zone of neritic
waters includes those areas that are sufficiently shallow and clear to
allow for light penetration sufficient to support primary productivity.
The Agency proposes to define the term ``littoral zone'' to mean any
nearshore area in a freshwater river or stream, lake or reservoir, or
estuary or tidal river extending from the level of highest seasonal
water to the deepest point at which submerged aquatic vegetation can be
sustained (i.e., the photic zone extending from shore to the substrate
receiving one (1) percent of incident light); where there is a
[[Page 49084]]
significant change in slope that results in changes to habitat and/or
community structure; and where there is a significant change in the
composition of the substrate (e.g., cobble to sand, sand to mud). In
oceans, the littoral zone encompasses the photic zone of the neritic
region. The photic zone is that part of the water that receives
sufficient sunlight for plants to be able to photosynthesize. The
neritic region is the shallow water or nearshore zone over the
continental shelf (see Sec. 125.83). In general, the littoral zone
defines the area where the physical, chemical, and biological
attributes of aquatic systems promote the congregation, growth, and
propagation of individual aquatic organisms, including egg, larvae, and
juvenile life history stages. Appendix 1 illustrates a littoral zone
defined by the deepest point at which submerged aquatic vegetation can
be sustained.
Adverse environmental impact from entrainment can for many species
be controlled or minimized in part by addressing factors associated
with the location of the intake structure. Placement (horizontal and
vertical) in the water body to avoid areas where these species or life
stages occur would limit the number of organisms taken into the cooling
water intake structure. Placing the intake structure where ambient
flows or water body volume are sufficiently large in proportion to the
proposed cooling water intake structure to minimize impact also
addresses these factors.
For freshwater rivers, the littoral zone is the area along the
shoreline that serves as the principal spawning and nursery area for
many, but not all, species of freshwater fish. The shoreline habitat
typically features both living and abiotic structures and a diverse
community of invertebrates and fish. Most of the reproductive
strategies of shoreline fish populations are similar to those found in
the littoral zone of lakes and reservoirs. The fish of this zone
typically follow a spawning strategy wherein the eggs are deposited in
prepared nests, on the bottom, and attached to submerged substrate,
where they incubate and hatch. As the larvae mature into fry and early
juveniles, some species disperse to open water, while most others
complete their life cycle in the littoral zone. Because these species
do not employ a pelagic reproductive strategy, the eggs and larvae are
not readily integrated into the drift component of the water column;
this reduces the potential for entrainment. To minimize adverse
environmental impact, the deepest open-water channel region of a river
that is available for location of an intake structure should generally
be used as a source of cooling water except where this area intersects
with fish migratory routes.
For lakes and reservoirs, the littoral zone is the portion of the
body of water extending from the shoreline lakeward to the deepest
point at which submerged aquatic vegetation can be sustained (fringe of
existing rooted plants). To minimize adverse environmental impact, the
deepest open region of a lake that is available for location of an
intake structure would often be the optimal location for cooling water
intake, and the cooling water intake flow should not alter the natural
thermal stratification of the lake. Natural thermal stratification
means the naturally occurring division of a waterbody into horizontal
layers of differing densities as a result of variations in temperature
at different depths.\42\ (Note, however, that such location is not the
only mechanism for minimizing adverse environmental impact.)
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\42\ Extrapolated from Academic Press Dictionary of Science and
Technology, ed, Christopher Morris, Academic Press, Inc., San Diego,
CA, 1992.
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For estuaries and tidal rivers, the most stringent minimum
requirements would apply to the entire water body. The abundance and
diversity of aquatic life within the estuarine and tidal river
environment (composed of protected bays, sounds, and lagoons) are
generally richer than those in any other water body type. These areas
provide an abundance of habitat, food, and refuge for the development
of the early life stages of the inshore and nearshore aquatic
communities, including communities of meroplankton and holoplankton.
The vast majority of commercially and recreationally important species
of finfish and shellfish caught in the United States use and depend on
estuaries and tidal rivers for completing their life cycles. Estuaries
and tidal rivers are among the most complex of aquatic habitats,
especially with respect to the environmental factors that affect the
distribution patterns of fish eggs, larvae, and juvenile life stages.
Many estuarine species have pelagic or planktonic larvae whose movement
in and around the estuary, as well as vertically within the water
column, is affected by the hydrodynamic characteristics of the estuary,
environmental factors, and the evolved behavior of the organisms.
Factors that affect the location and movement of aquatic organisms
within estuaries and tidal rivers include tides and currents, salinity,
dissolved oxygen, temperature, and suspended solids. Additionally,
weather patterns, both short- and long-term, can influence the movement
and location of aquatic organisms in estuaries and tidal rivers. As a
consequence, the Agency is proposing, at a national level, to establish
the most stringent requirements to minimize adverse environmental
impact for all areas within estuaries and tidal rivers. The Agency
developed cost estimates for this proposal, using the most
comprehensive suite of technologies in all parts of tidal rivers and
estuaries and, as discussed below, estimated that these costs would be
economically practicable.
For oceans, the littoral zone (which is being defined as the photic
zone of the neritic region) is the area outward from the shoreline
beyond the low tide level including waters over the continental shelf.
Where islands occur in the ocean, a littoral zone would extend out from
the low tide level of the island shoreline. In the near and offshore
areas, aquatic life is concentrated in convergence zones of major
oceanic currents, within reefs, rocky bottoms, hard bottom ledges, and
kelp beds.
EPA is proposing requirements based on the proximity of the intake
structure to the littoral zone. For freshwater rivers (or streams) and
lakes (or reservoirs), the Agency would specify three categories of
requirements based on location criteria. The first category would
establish requirements for a cooling water intake structure located at
least 50 meters outside the littoral zone. Cooling water intake
structures that meet this location criterion would have to meet the
least stringent set of minimum requirements. The second category would
establish minimum requirements for a cooling water intake structure
located less than 50 meters outside the littoral zone. The third
category would establish minimum requirements for a cooling water
intake structure located in the littoral zone. EPA would establish only
one set of minimum requirements for cooling water intake structures
located in estuaries and tidal rivers. As discussed above, all parts of
estuaries and tidal rivers have the potential for high biological
productivity; therefore, the most stringent set of requirements and
broadest suite of technologies would apply to cooling water intake
structures located in these sensitive water body types. For oceans, the
Agency is proposing two categories of requirements based on location
criteria. One category addresses cooling water intake structures
located outside the littoral zone; the other category addresses cooling
water intake
[[Page 49085]]
structures located inside the littoral zone.
EPA decided to propose at least 50 meters outside the littoral zone
as the location in which the least stringent set of requirements would
apply. The Agency has concluded this is appropriate because the
greatest numbers of aquatic organisms and their habitat are not
typically present 50 meters outside the littoral zone and therefore
will not be vulnerable to impingement and entrainment. EPA recognizes
that some important species have critical life stage areas at various
distances outside of a littoral zone, and solicits public comment on
how best to deal with this species and site-specific variability. EPA
also is considering distance criteria of 200 meters, 100 meters, and
just outside the littoral zone. EPA solicits comment on these
alternative distance criteria.
To address concerns about potential implementation issues
associated with basing the regulatory requirements on site-specific
determinations of the littoral zone, the Agency also is considering
establishing a fixed distance from the shoreline instead of a fixed
distance from the littoral zone to define the area in which the most
stringent minimum requirements would be applicable. EPA solicits
comment on the following criteria for distance from the shoreline: (1)
30 percent of the distance from shoreline to the opposing shore (i.e.,
30 percent of the water body width) for streams, rivers, lakes, and
reservoirs and (2) 500 meters offshore for tidal rivers, estuaries, and
oceans. Regulatory language such as the following could be used to
implement this approach:
Littoral zone in a freshwater river or stream, lake, or
reservoir means the nearshore area that extends 30 percent of the
distance from one shoreline to the opposite shoreline (i.e., 30
percent of the width of the waterbody at the point of measurement)
and in a tidal river, estuary, or ocean means the nearshore area
extending 500 meters from the shoreline.
3. Flow and Volume
As stated previously, flow is one component of capacity and
capacity includes the maximum volume of water that can be withdrawn
through a cooling water intake structure. Flow and volume are
parameters that can be regulated to minimize adverse environmental
impact. In particular, the magnitude of entrainment impacts is directly
related to the capacity or intake flow (or volume) of cooling water
intake structures. The adverse impact that results from entrainment of
organisms occurs after the organism has entered the cooling water
system, where it may be exposed to elevated temperatures, shearing
forces, impact from mechanical equipment, swift changes in pressures,
lack of dissolved oxygen, and chemicals. Once organisms are entrained,
mortality and injury rates can be high.
One way to minimize the adverse environmental impact from
entrainment is to minimize the flow or volume a facility withdraws.
Therefore, today's proposed rule includes requirements that would limit
cooling water intake design flow or volume at new facilities.
a. Flow Requirements for New Facilities With Cooling Water Intake
Structures Located in Freshwater Rivers and Streams
Total design intake flow from all cooling water intake
structures at a facility located in a freshwater river or stream
must be no more than the lower of five (5) percent of the source
water body mean annual flow or 25 percent of the source water 7Q10.
New facilities that have cooling water intake structures located in
freshwater rivers or streams would have to meet a flow requirement that
would limit the proportion of the design intake flow withdrawn by the
facility compared to the flow of the water body in which the intake is
located. Proposed Sec. 125.84(b). Two proportional requirements are
being proposed, and facilities would be required to meet the more
stringent of the two.
The first of these requirements would limit the total design intake
flow from all cooling water intake structures at the facility to five
(5) percent of the annual mean flow of the water body. As previously
noted, 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 many aquatic species are free-
floating and may be drawn with the flow of cooling water into an intake
structure. The five percent requirement would establish a maximum level
for entrainment effects that, in all areas within 50 meters of the
littoral zone, would be further reduced by additional requirements
(such as requirements to reduce cooling water withdrawals, and
additional design and construction technologies to further reduce
impingement and entrainment). EPA estimates that the combination of
these requirements (and the design intake velocity limitation for
reducing impingement in almost all waterbody types) should result in
protection of greater than 99 percent of the aquatic community from
impingement and entrainment. This combination of requirements to
establish a minimum level of protection for aquatic communities is
analogous to the process employed by EPA's water quality-based
regulatory programs for developing the necessary levels of protection
to protect aquatic communities within the water body as a whole where
impacts may occur. These requirements provide the minimum level of
protection for designated uses that reflect the goals in section 101(a)
of the CWA, i.e., ``protection and propagation of fish and shellfish
and wildlife and recreation in and on the water.'' As described
elsewhere, the Director would have authority under this proposal to
impose additional requirements on a site-specific basis in certain
circumstances should the requirements proposed today not protect
aquatic life from adverse environmental impact.
The Agency has considered other design intake flow levels in
developing this proposal, including 1 percent, 10 percent, and 15
percent of the mean annual flow of the waterbody. With the exception of
the 1 percent level, EPA concludes these levels would result in
decreased protection. EPA solicits comment on these alternatives to
five percent of the annual mean flow.
The second part of the flow requirement would limit the proportion
of the total design intake flow to 25 percent of the source water
body's 7Q10 flow. The 7Q10 is the lowest average seven-consecutive-day
low flow with an average recurrence frequency of once in 10 years
determined hydrologically. EPA estimates that limiting the proportion
of a river or stream to 25 percent of the 7Q10, in conjunction with the
other requirements proposed today, also should protect more than 99
percent of aquatic communities from adverse environmental impact. As
explained above, this flow requirement, in combination with other
requirements, would establish a minimum level of protection for aquatic
communities analogous to that employed by EPA's water quality-based
regulatory programs. The Agency invites comment on the use of other
low-flow protection requirements, including a requirement that would
limit cooling water intake structure capacity to 10 percent, 15
percent, 25 percent, or 35 percent of the 7Q10 low flow.
EPA has analyzed the potential siting implications of the proposed
flow requirements and has determined that within the United States
approximately 104,000 river miles have sufficient flow to support the
water usage needs of large manufacturing facilities withdrawing up to
18 million gallons of water per day (MGD). Approximately 47,000 river
miles could support a large nonutility power-producing facility
[[Page 49086]]
withdrawing 85 MGD, and approximately 18,000 river miles could support
a large utility plant requiring 700 MGD. Under today's proposed rule,
large new facilities needing additional cooling water in other areas
would need to supplement withdrawals from waters of the U.S. with other
sources of cooling water, or redesign their cooling systems to use less
water.
As another gauge of the siting impacts of the proposed flow
requirement for new facilities, the Agency determined that 89 percent
of existing non-nuclear utility facilities (from a 1997 database of the
Energy Information Agency and a 1994 Edison Electric Institute
database) would be able to be sited at their current location under
today's proposed requirements if they also operated in compliance with
the flow reduction requirements proposed today. (Please note that the
Agency does not intend to prejudge or signal in any way whether its
proposed rule for existing facilities will or will not include capacity
limitations commensurate with a level that could be attained by a
recirculating cooling water system. The purpose of the analysis was to
determine whether today's proposed flow requirements would unreasonably
limit siting alternatives for new facilities only.)
Finally, to further examine the potential siting implications of
today's proposal for new facilities, the Agency reviewed data on water
use by existing facilities in arid regions of the country. The Agency
found that 80 percent of the existing facilities in Arizona,
California, Nevada, New Mexico, Oklahoma, and Texas do not use waters
of the U.S. in their operations, suggesting that new facilities in
these areas would similarly use waters other than waters of the U.S. in
their operations. Therefore, they would not be affected by today's
proposal if they were being constructed as new facilities subject to
the rule.
Based on these analyses, the Agency is proposing flow requirements
as an economically practicable component of requirements for BTA to
minimize adverse environmental impact.
b. Flow Requirements for New Facilities With Cooling Water Intake
Structures Located in Lakes and Reservoirs
Total design intake flow from all cooling water intake
structures at a facility located in a lake or reservoir must not
alter the natural thermal stratification of the water body.
EPA is proposing that cooling water intake structures located in
lakes or reservoirs not alter the natural thermal stratification of the
water body. Proposed Sec. 125.84(c). Under natural conditions the water
in lakes and reservoirs is seasonally stratified: The coldest water is
on the bottom, and the warmest water is at the surface. EPA proposes to
limit the facility's design intake flow to a threshold below which it
will not cause the alteration of the thermal (and hence the dissolved
oxygen) structure of the lake or reservoir.
EPA is not proposing a proportional flow requirement for these
facilities because the volume of the lakes and reservoirs on which they
are located typically must be sufficient to accept their heated
discharge and still maintain the efficiency of their cooling system.
Because lakes and reservoirs typically do not have a strong current or
flow, the volume of the water body must be great enough to dissipate
the heat so that it is not recirculated back to the facility in its
cooling water intake. However, EPA is proposing a requirement to
protect the water body from alteration of the natural stratification,
which can be caused by withdrawing large amounts of lower-temperature
cooling water generally with low dissolved oxygen during the summer
months. This would limit the intake flow of facilities that are located
on a lake or reservoir to a capacity appropriate for the size of the
water body, thus limiting the number of aquatic organisms impinged or
entrained from the same water body.
The flow requirements specified in today's proposal are adequate to
protect most lakes and reservoirs. However, EPA recognizes that there
are unique situations, such as the Great Lakes, in which there are
site-specific factors that may warrant more stringent requirements (as
determined by the Director) to minimize adverse environmental impact.
One of the primary concerns with lakes and reservoirs is that the
withdrawal of cooling water should not alter the natural thermal
stratification of the water body. Since the volume of water in the
Great Lakes is quite large compared to the amount of water withdrawn
for cooling purposes, it is highly unlikely that the thermal structure
of these lakes would be influenced by cooling water withdrawals.
However, the Great Lakes, like estuaries, have areas of high
productivity and sensitive critical habitats that could be adversely
affected by cooling water intake structures. The Agency recognizes that
new facilities with cooling water intake structures in such water
bodies might need more stringent requirements than those generally
proposed here for lakes and reservoirs. Section 125.84(f) would provide
the Director the authority under this proposal to address important
site-specific factors that lead to the need for additional control
measures.
c. Flow Requirements for New Facilities With Cooling Water Intake
Structures Located in Estuaries and Tidal Rivers
The total design intake flow from all cooling water intake
structures at a facility must be no greater than one (1) percent of
the volume of the water column in the area centered about the
opening of the intake with a diameter defined by the distance of one
tidal excursion at the mean low water level.
EPA is proposing a proportional flow requirement for cooling water
intake structures located in estuaries and tidal rivers that limits the
total design intake flow to no greater than one (1) percent of the
volume of the water column in an area centered about the opening of the
intake with a diameter defined by the distance of one tidal excursion
at the mean low water level. Proposed Sec. 125.84(d).
The basis for this proposal is similar to that underlying the
proposed requirements for new facilities with cooling water intake
structures located in freshwater rivers and streams. EPA selected a one
(1) percent threshold for estuaries and tidal rivers because they are
extremely productive and sensitive biological areas. A more
conservative approach is necessary to protect these types of water
bodies. However, because estuary volumes are very large, allowing a
withdrawal of one (1) percent of an entire estuary would potentially
allow for the impingement and entrainment of a very large number of
aquatic organisms. Limiting the withdrawal to one (1) percent of a
volume defined using the tidal excursion is a more appropriate and
conservative approach to minimize adverse environmental impact and
would protect 99 percent of the organisms in the area influenced by the
cooling water intake structure. As noted above, this requirement in
combination with the other requirements would establish a minimum level
of protection analogous to water quality protection levels in other EPA
programs.
In addition, in natural systems species and populations that are
impinged and entrained might not inhabit the entire estuary, or
different species might inhabit different parts of the estuary.
Therefore, EPA is proposing to use a smaller volume that relates more
specifically to the cooling water intake structure and the area it
influences. The volume being proposed for comparison to the intake
volume is determined using the tidal excursion in the area of the
cooling water intake structure. Tidal excursion is a measurement of the
distance that a particle travels during
[[Page 49087]]
one tidal cycle (see proposed definition at Sec. 125.83). It would
include the total of the distance upstream of the cooling water intake
structure the particle would travel during the flood tide and the
distance downstream it would travel during the ebb tide. By defining
distances using the tidal excursion, the requirement would allow for a
volume to be delineated by using the tidal excursion distance and
drawing a radius (using the midpoint of the excursion distance) from
one end of the excursion distance to the other. (See Appendix 2 to
Preamble.) EPA invites comment on this approach.
d. Flow Requirements for New Facilities With Cooling Water Intake
Structures Located in Estuaries and Tidal Rivers or the Littoral Zone
in Other Water Body Types
You must reduce your intake flow to a level commensurate with
that which could be attained by a closed-cycle recirculating cooling
water system.
The reduction of the cooling water intake structure's capacity is
one of the most effective means to reduce adverse environmental impact,
especially in or near sensitive biological areas. EPA is proposing that
facilities with intakes located in tidal rivers and estuaries; in the
littoral zone of lakes, freshwater rivers, or oceans; or less than 50
meters outside the littoral zone of lakes, freshwater rivers, or oceans
limit their flow to a level commensurate with that which could be
attained by a closed-cycle recirculating cooling water system. Proposed
Secs. 125.84(b) through (e).
EPA concludes these facilities would require this additional level
of control because of their proximity to potentially sensitive and
highly productive biological areas. Closed-cycle recirculating cooling
water systems are known to reduce the amount of cooling water needed
and in turn to directly reduce the number of aquatic organisms taken
into the cooling water intake structure. For the traditional steam
electric utility industry, facilities located in fresh water areas that
have closed-cycle recirculating cooling water systems can, depending on
the quality of the makeup water, reduce water use by 96 to 98 percent
from the amount they would use if they had once-through cooling water
systems. Steam electric generating facilities that have closed-cycle
recirculating cooling water systems using salt water can reduce water
usage by about 70 to 96 percent when makeup and blowdown flows are
minimized.\43\
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\43\ The lower range would be appropriate where State water
quality standards limit chloride to a maximum increase of 10 percent
over background and therefore require a 1.1 cylce of concentration.
The higher range may be attained where cycles of concentration up to
2.0 are used for the design.
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Today's proposal would require that the intake flow withdrawn by a
cooling water intake structure be reduced to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system by all cooling water intake structures at the facility.
That level, in conjunction with the other requirements proposed today,
would minimize adverse environmental impact and be economically
practicable. Such flow reductions are a necessary component of the
technology for minimizing adverse environmental impact in highly
productive areas. In addition, EPA cost estimates show that this
requirement is available to new facilities on a national level. EPA
realizes that makeup water would be required because of losses within
the system, including blowdown, evaporation, windage, and drift. The
Agency invites comment on the use of a flow reduction requirement that
requires the reduction of intake flow to level commensurate with that
which can be attained by a closed-cycle recirculating cooling water
system that has minimized makeup and blowdown flows.
To examine the extent to which new facilities are likely to reuse
and recycle cooling water, the Agency reviewed the engineering
databases that support the effluent limitations guidelines for several
categories of industrial point sources. In general, this review
identified extensive use of recycle or reuse of cooling water in
documents summarizing industrial practices in the late 1970s and early
1980s, as well as increased recycling and reuse of cooling water in the
1990s. For example, the reuse of cooling water in the manufacturing
processes was identified in the pulp and paper and chemicals
industries, in some cases as part of the basis for an overall zero
discharge requirement (inorganic chemicals). Other facilities reported
reuse of a portion of the cooling water that was eventually discharged
as process wastewater, with some noncontact cooling water discharged
through a separate outfall or after mixing with treated process water.
This review has documented that recycle and reuse of noncontact
cooling water is a common industrial practice to reduce both cooling
water usage and overall water usage by manufacturing facilities.
Facilities that reuse 100 percent of the water withdrawn from waters of
the U.S. for cooling purposes would be considered to have achieved the
flow reduction requirements (i.e., reduce intake flow to a level
commensurate with that which can be attained by a closed-cycle
recirculation cooling water system that has minimized makeup and
blowdown flows). In implementing today's proposed rule, EPA would
consider reuse to be equivalent to a closed-cycle recirculating system.
The Agency invites comment on the proposed approach for considering
reuse of cooling water at manufacturing plants in lieu of recirculation
as an alternative to meet the flow reduction requirement in today's
proposal.
4. Velocity
The velocity of water entering a cooling water intake structure
exerts a direct physical force against which fish and other organisms
must act to avoid impingement or entrainment. EPA considers velocity to
be one of the more important factors that can be controlled to minimize
adverse environmental impact at cooling water intake structures.
To develop an appropriate, nationally protective minimum velocity
requirement at cooling water intake structures, EPA reviewed available
literature, State and Federal guidance, and regulatory requirements and
found that a velocity of 0.5 ft/s has been used as guidance in at least
three Federal documents.44 45 46 The 0.5 ft/s threshold
recommended in the Federal documents is based on a study of fish
swimming speeds and endurance performed by Sonnichsen et al.
(1973).\47\ This study concluded that appropriate velocity thresholds
should be based on the fishes' swimming speeds (which are
[[Page 49088]]
related to the length of the fish) and endurance (which varies
seasonally and is related to water quality). The data presented showed
that the species and life stages evaluated could endure a velocity of
1.0 ft/s. To develop a threshold that could be applied nationally and
would be protective of most species of fish and their different life
stages, EPA applied a safety factor of two to the 1.0 ft/s threshold to
derive a threshold of 0.5 ft/s. EPA recognizes that there are specific
circumstances and species for which the 0.5 ft/s requirement might not
be sufficiently protective and is aware that alternative requirements
have been developed for these situations. For example, the National
Marine Fisheries Service and the California Department of Fish and Game
have developed fish screening criteria (velocity requirements) for
anadromous salmonids that range from 0.33 ft/s to 0.40 ft/
s.48 49 50 There are also species for which a velocity of
greater than 0.5 fps would still be protective.
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\44\ John Boreman, Impacts of Power Plant Intake Velocities on
Fish, Power Plant Team, U.S. Fish and Wildlife Service, 1977.
\45\ A.G. Christianson, F.H. Rainwater, M.A. Shirazi, and B.A.
Tichenor, Reviewing Environmental Impact Statements: Power Plant
Cooling Systems, Engineering Aspects, U.S. Environmental Protection
Agency (EPA), Pacific Northwest Environmental Research Laboratory,
Corvallis, Oregon, Technical Series Report EPA-660/2-73-016, October
1973.
\46\ Willis King, ``Instructional Memorandum RB-44: Review of
NPDES (National Pollutant Discharge Elimination System) Permit
Applications processed by the EPA (Environmental Protection Agency)
or by the State with EPA oversight,'' Navigable Waters Handbook,
U.S. Fish and Wildlife Service, February 1973.
\47\ John C. Sonnichsen, Jr., B.W. Bentley, G.F. Bailey, and
R.E. Nakatani, A Review of Thermal Power Plant Intake Structure
Designs and Related Environmental Considerations, Hanford
Engineering Development Laboratory, Richland, Washington, HEDL-TME
73-24, UC-12, 1973.
\48\ NMFS, Juvenile Fish Screen Criteria, National Marine
Fisheries Service Northwest Region, 1995.
\49\ NMFS, Fish Screening Criteria for Anadromous Salmonids,
National Marine Fisheries Service, Southwest Region, April 14, 1997.
Published on the Internet at http://swr.ucsd.edu/hcd/fishscrn.htm.
\50\ California Department of Fish and Game, Fish Screening
Criteria, April 14, 1997.
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Two velocities are of importance in the design of cooling water
intake structures: the approach velocity and the through-screen or
through-technology velocity. The approach velocity is the velocity
measured just in front of the screen face or at the opening of the
cooling water intake structure in the surface water source. This
velocity has the most influence on an aquatic organism and its ability
to escape from being impinged or entrained by the cooling water intake
structure. The through-screen or through-technology velocity is the
velocity measured through the screen face or just as the organisms are
passing through the opening into another device (e.g., entering the
opening of a velocity cap). This velocity is always greater than the
approach velocity because the net open area is smaller.
EPA is proposing to use the design intake velocity as a requirement
relating to the design and capacity of a cooling water intake
structure. The use of a design intake velocity requirement in this
manner would ensure that intake structures have a velocity that
contributes to minimizing adverse environmental impact. The Agency is
proposing that head loss across the screens (or other appropriate
measurements for technologies other than intake screens) be monitored
and correlated with intake velocity to ensure that the facility is
continually maintained and operated to minimize adverse environmental
impact. Proposed Sec. 125.87(b).
EPA is proposing to set the velocity requirement at 0.5 ft/s as a
design through-screen or through-technology requirement. The Agency is
proposing this requirement reflects BTA for the maximum design intake
velocity of the cooling water intake structure. The Agency has reviewed
the NewGen database and of those facilities potentially in the scope of
today's proposed rule, the majority have design intake velocities of
0.5 ft/s or less. Moreover, EPA has determined that a considerable
number of facilities that have commenced commercial operation in the
past few years have design intake velocities of 0.5 ft/s or less. These
currently operating facilities demonstrate that a design intake
velocity of 0.5 ft/s is achievable and provides for sufficient cooling
water withdrawal. EPA is not proposing the more stringent criteria of
0.33 ft/s and 0.40 ft/s, developed by NMFS and the State of California,
respectively, because they would be overly protective for a national
BTA requirement; however, they might be appropriate for more sensitive
species or if required by the Director for a specific case. The Agency
is also concerned that on a national basis a design intake velocity of
less than 0.5 ft/s might not be achievable for large-volume
withdrawals. In addition to a design intake velocity requirement, EPA
would require new facilities to monitor the head loss across the
screens or other technology on a quarterly basis. Proposed
Sec. 125.87(b). EPA is proposing that head loss across the screens (or
other appropriate measurements for technologies other than intake
screens) be monitored and correlated with intake velocity once the
facility is operating.
The proposed regulation would require that the maximum design
intake velocity at each cooling water intake structure at a facility be
no more than 0.5 ft/s. Proposed Secs. 125.84(b)-(e). The design intake
velocity would be defined as the value assigned during the design phase
of a cooling water intake structure to the average speed at which
intake water passes through the open area of the intake screen or other
device against which organisms might be impinged or through which they
might be entrained. This is equivalent to the through-screen or
through-technology velocity.
Some stakeholders suggest that mandatory, uniform velocity
performance requirements are inappropriate as a means of minimizing
adverse environmental impact because many site- and species-specific
factors influence both the rate at which a given cooling water intake
structure impinges aquatic life and the significance of any such
impingement.
In particular, these stakeholders suggest that there are sound
biological reasons why uniform velocity requirements are not
appropriate. For example, these stakeholders point out that fish swim
speed varies greatly by species and age of the individual and can also
be affected by water temperature. Swimming speed is an important factor
in determining the likelihood of impingement because it is a measure of
the fishes' ability to escape from the area of the intake. They also
point out that vertical and horizontal distribution of organisms in the
water column (which might be linked to natural habitat preferences)
might influence rates of impingement, as might levels of physiological
stress that organisms experience before exposure to the cooling water
intake structure.
In addition, stakeholders offer that there are hydrological and
locational reasons why uniform velocity performance standards are not
appropriate and why velocity standards should be established on a site-
specific basis. For example, the risk of impingement at some locations,
such as a riverine system, may exhibit a correlation to flow. Moreover,
the risk of impingement may vary according to seasonal variations in
flow, which may or may not coincide with the spawning/nursery seasons
or other times of vulnerability for the potentially affected species.
Thus, these stakeholders suggest that case-by-case velocity standards,
that take into account the issues identified above, as opposed to
mandatory, uniform velocity performance standards, may be a sounder
approach for limiting impingement.
The Agency solicits comment on the proposed design intake velocity
requirement, as well as on the relationship of swimming speed, other
biological factors, and other elements (in addition to velocity) that
relate to the risk of impingement. EPA is also considering and requests
comment on a less stringent requirement such as 1.0 ft/s, and whether
the requirement should be set based on an approach velocity or the
through-screen or through-technology velocity. Finally, the Agency
requests comment on allowing site-specific determinations of velocity
without establishing a uniform national requirement, as discussed
above.
[[Page 49089]]
5. Additional Design and Construction Technologies
EPA is proposing that facilities whose cooling water intake
structures are located in the littoral zone implement additional design
and construction technologies that minimize impingement and entrainment
of fish, eggs, and larvae and maximize survival of impinged adult and
juvenile fish. Proposed Secs. 125.84(b)-(e). The technologies that
would need to be implemented are those that (1) minimize impingement
and entrainment of fish, eggs, and larvae and (2) maximize survival of
impinged adult and juvenile fish. However, EPA does not propose to
mandate the use of any specific technology. Although EPA refers to
those technologies as additional design and construction technologies,
they are part of the suite of technologies proposed to minimize adverse
environmental impact and are additional only in the sense that they
would be required in some circumstances in addition to the technologies
used to meet the velocity, flow, capacity, or other requirements.
Technologies that maximize survival of impinged organisms include
but are not limited to fish-handling systems such as bypass systems,
fish buckets, fish baskets, fish troughs, fish elevators, fish pumps,
spray wash systems, and fish sills. These technologies either divert
organisms away from impingement at the intake structure or collect
impinged organisms and protect them from further damage so that they
can be transferred back to the source water at a point removed from the
facility intake and discharge.
Technologies that minimize impingement and entrainment of fish,
eggs, and larvae might include, but are not limited to, technologies
that reduce intake velocities so that ambient currents can carry the
organisms past the opening of the cooling water intake structure;
intake screens, such as fine mesh screens and Gunderbooms, that exclude
smaller organisms from entering the cooling water intake structure;
passive intake systems such as wedge wire screens, perforated pipes,
porous dikes, and artificial filter beds; and diversion and/or
avoidance systems that guide fish away from the intake before they are
impinged or entrained.
EPA is proposing to require additional design and construction
technologies to protect fish, eggs, and larvae when the cooling water
intake structure is located inside the littoral zone because this is
considered a sensitive area where spawning takes place and critical
habitat is present. Such technologies are available to new facilities
and further reduce environmental impact resulting from impingement and
entrainment.
Because site-specific factors greatly influence the selection among
various additional design and construction technologies, EPA proposes
that permit applicants subject to this requirement because of the
location of their intake structure perform a baseline assessment of the
biological community at the proposed location of the cooling water
intake structure and submit to the Director for approval a plan for
installation and operation of appropriate additional design and
construction technologies. Proposed Sec. 125.86(b)(6).
EPA also solicits comment on whether certain minimum technologies
might be appropriate in virtually all circumstances and should be
required in final section 316(b) regulations. EPA realizes that this
approach is a departure from other parts of today's proposal in which
the Agency specifically refrains from mandating the use of a specific
technology. However, EPA considers comment on this approach to be
beneficial. For example, it might be possible to specify that all new
facilities install additional design and construction technologies,
such as fine-mesh screens, that in conjunction with the proposed
velocity requirement would effectively reduce impingement at virtually
all locations within or near the littoral zone. Alternatively, the
Agency could establish performance standards based on the use of these
technologies.
6. What Is the Role of Restoration Measures?
Restoration measures, as used in the context of section 316(b)
determinations, include practices that seek to conserve fish or aquatic
organisms, compensate for the fish or aquatic organisms killed, or
enhance the aquatic habitat harmed or destroyed by the operation of
cooling water intake structures. Such measures have been employed in
some cases in the past as one of several means of fulfilling the
requirements imposed by section 316(b). Examples of restoration
measures that have been included as conditions of permits include
creating, enhancing, or restoring wetlands; developing or operating
fish hatcheries or fish stocking programs; removing impediments to fish
migration; enhancing natural resources in an impacted watershed; and
other projects designed to replace fish or restore habitat.
Restoration measures have been used, however, on an inconsistent
and somewhat limited basis. Their role under section 316(b) has never
been explicitly addressed in EPA regulations or guidance. Restoration
projects have been undertaken as part of section 316(b) determinations
predominantly at existing facilities and in permitting actions where
the cost of the proposed technology was considered to be wholly
disproportionate to the demonstrated environmental benefits to be
achieved. Often such cases have involved situations where retrofitting
with a technology such as cooling towers was under consideration.
Given the limits on the ability of direct control technologies
(location, flow, velocity, and other requirements) to eliminate
environmental harm in all circumstances, EPA is considering a variety
of mandatory, discretionary, and voluntary regulatory approaches
involving restoration measures. On the other hand, EPA also is
considering specifying that restoration measures may not be part of a
section 316(b) determination. EPA invites comment on the appropriate
role of restoration, in any, under section 316(b).
a. Mandatory Restoration Approaches
Under the first approach that the Agency is considering, the use of
restoration measures would be required as an element of a section
316(b) determination in all cases except where a new facility's cooling
water intake structure is located at least 50 meters outside the
littoral zone in a freshwater river or stream, or outside the littoral
zone in a lake or reservoir. Locating cooling water intake structures
in these less productive areas, in conjunction with other applicable
requirements, generally would minimize adverse environmental impact.
All other new facilities with cooling water intake structures would be
required to implement some form of restoration measures in addition to
implementing direct control technologies to minimize adverse
environmental impact. Under this approach, new facilities would first
implement the direct control technologies as specified in this proposed
rule. They would then develop and implement, in coordination with the
Director, a restoration plan that would further reduce and offset
unavoidable impacts that remain after the implementation of direct
control technologies. This is similar to the mitigation sequence used
under CWA section 404, wherein environmental impacts are avoided and
minimized prior to consideration of compensatory mitigation measures.
The development of restoration measures applicable to a cooling water
intake structure would focus on the unique situation faced by each
facility and would allow for review
[[Page 49090]]
and comment by the permitting agency and the public.
Under this approach, the permit application would define and
quantify the need for restoration measures by estimating the adverse
environmental impact that would remain after application of the
location, design, construction, and capacity requirements specified for
the type of water body in which the particular cooling water intake
structure would be located. The permit would contain conditions,
including a compliance schedule, that would require the permittee to
develop and implement the approved restoration plan. Applicants would
then assess alternatives for addressing these impacts and develop a
draft restoration and monitoring plan for approval by the Director.
If EPA implemented this approach, it would add language to proposed
sections 125.84(b)(2), (b)(3), (c)(2), (c)(3), (d)(1), (e)(1), and
(e)(2) specifying, ``You must implement restoration measures''.
Language such as the following also would be added to proposed section
125.86:
Restoration Measures. If you are required to comply with the
requirements in Sec. 125.84(b)(2), (b)(3), (c)(2), (c)(3), (d)(1),
(e)(1), or (e)(2) to implement a restoration measure, you must
develop a plan based on the results of the Source Water Baseline
Biological Characterization required by Sec. 125.86(a) and submit
the plan to the Director for review and approval. The plan should
document how you propose to implement restoration measures to
replace organisms or enhance the habitat for the species that will
be most susceptible to impingement and entrainment by the cooling
water intake structures. The plan must contain the following:
(i) A narrative description of proposed restoration measures,
the impacts from impingement and entrainment expected to remain
after the measures have been implemented, and the technical basis
for choosing those restoration measures. Include a discussion of the
nexus between the estimated impingement and entrainment impacts from
the cooling water intake structure and the proposed measures.
(ii) Design and engineering calculations, drawings, maps, and
costs supporting the proposed restoration measures.
Beyond this framework, EPA invites comment on the process for
developing and implementing the restoration plan or the content of a
plan. The following example illustrates one possible process and set of
substantive contents. The draft plan could be required to include an
evaluation component and study that would be submitted to the
permitting agency and natural resource agencies, and be made available
to the public, before permit issuance. This draft plan would then be
distributed to other agencies with relevant expertise for review and
comment. The public also would be informed of the availability of the
plan for review and comment. After considering comments provided by
relevant agencies and the public, the applicant would develop a final
plan and a response to comment document, which would be submitted to
the Director for approval. Upon approval, the applicant would implement
the restoration plan, including providing regular reports to the
permitting agency and periodically verifying progress toward achieving
the specific restoration goals included in the plan. The duty to
develop and implement a restoration plan would be the permit
applicant's.
Alternatively, EPA could require facilities to study the extent of
impingement and entrainment after the actual implementation of direct
control technologies, and require the development of a draft plan that
addressed the study results in a manner similar to the approach
described above.
b. Discretionary Restoration Approaches
A second approach would provide the Director with the discretion to
specify appropriate restoration measures under section 316(b), but
would not require that he or she do so. Under one version of this
approach, restoration measures would be allowed in permitting new
facilities only where the facility could demonstrate that the costs
incurred to implement direct controls exceed a specified cost test.
(See section VIII.C for discussion of the cost tests that are under
consideration.) This approach is consistent with several precedents in
which the permitting authority allowed the use of restoration measures
where the cost to retrofit an existing facility's cooling water intake
structures with control technologies was determined to be wholly
disproportionate to the benefits the control technology would provide
(e.g., John Sevier, Crystal River, Chalk Point, Salem).\51\
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\51\ In re Tennessee Valley Authority John Sevier Steam Plant,
NPDES Permit No. TN0005436 (1986); In re Florida Power Corp. Crystal
River Power Plant Units 1, 2 & 3, NPDES Permit FL0000159 (1988);
Chalk Point, MDE, State of Maryland, Discharge Permit, Potomac
Electric Power Co., State Discharge Permit No. 81-DP-0627B, NPDES
Permit No. MD0002658B (1987, modified 1991); Draft NJDEP Permit
Renewal Including Section 316(a) Variance Determination and Section
316(b) BTA Decision: NJDEP Permit No. NJ0005622 (1993).
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A second version of this approach would allow, but not require, the
Director to specify restoration measures to reduce the net level of
impingement and entrainment so that adverse environmental impact caused
by cooling water intake structures would be minimized. Under this
approach, the use of restoration measures would supplement the
imposition of performance requirements and direct controls. The
performance requirements and direct controls would need to be
implemented before restoration measures would be imposed.
c. Voluntary Restoration Approaches
Stakeholders have suggested a third type of restoration approach,
under which the Director could consider restoration measures proposed
voluntarily by permit applicants in the context of determining the
extent to which location, design, and capacity requirements could be
modified to reflect site-specific conditions while still ensuring that
adverse environmental impact is minimized. Under this alternative,
restoration measures could substitute for location, design, and
capacity requirements, partially or completely, in appropriate cases.
The need for restoration measures would be determined based on the
magnitude of the environmental impact associated with the cooling water
intake structure and the optimal balance between the use of direct
controls and restoration measures to minimize the impact. Appropriate
conditions relating to the voluntary restoration measures would be
included in the permit. Such an approach would be designed to provide
flexibility to the Director, the regulated community, and other
interested parties to address the issues posed by cooling water intake
structures on a site-specific, priority basis. This approach might
result in incentives for permittees to develop more far-reaching
projects, potentially providing benefits to a larger portion of a
watershed and a broader range of aquatic and other species, and for
longer periods of time.
Finally, stakeholders also have suggested that voluntary
restoration measures should be applied to mitigate the effects of
cooling water intake structures so that there is no basis for a
determination of adverse environmental impact. They suggest that
likewise, the statute does not preclude the consideration of the
anticipated benefits from proposed restoration measures in evaluating
the extent to which additional technology may be necessary, nor does it
preclude the consideration of benefits associated with restoration
measures implemented pursuant to previous permits, together with other
relevant data, in evaluating whether adverse environmental impact
currently exists.
Under any approach, there would be a nexus between the restoration
measures employed and the adverse
[[Page 49091]]
environmental impact caused by a cooling water intake structure. For
example, if after implementation of direct control technologies an
important species in the vicinity of the cooling water intake structure
continues to be adversely affected by a cooling water intake structure,
appropriate restoration measures would address the adverse effects on
that species, perhaps through enhancement of other factors that affect
the target species' ability to thrive or as a last resort, replacement
of the fish killed or harmed.
Restoration plans could potentially use a ``banking'' mechanism
similar to that used in the CWA section 404 program, that would allow
the permittee to meet restoration requirements by purchasing
``credits'' from an approved ``bank.'' For example, should wetlands
restoration be an appropriate mechanism for offsetting the adverse
impact from the cooling water intake structure, the permittee could
purchase credits from an existing wetlands mitigation bank. As in the
section 404 program, public or private entities could establish and
operate the banks. EPA views the use of ``banking'' for the purposes of
this proposed rule as one way to facilitate compliance and reduce the
burden on the permit applicant, while at the same time potentially
enhancing the ecological effectiveness of the required restoration
activities.
EPA also is considering an approach under which the use of
restoration measures would not be allowed in section 316(b) permitting
for new facilities. Critics of mitigation or restoration measures
argue, among other things, that they are not effective in compensating
for the specific impingement and entrainment losses caused by cooling
water intake structures.
EPA requests comment on all aspects of the restoration approaches
described in this notice. The Agency does not intend the foregoing
discussion of restoration measures to affect any existing statutory,
regulatory, or other legal authorities with respect to the use of
restoration measures. The Agency also does not intend the foregoing
discussion to affect any ongoing permit proceedings or previously
issued permits, which should continue to be governed by existing legal
authorities. The Agency will address the issue of restoration further
as it develops the final rule.
7. Additional and Alternative BTA Requirements
At Sec. 125.84(f), EPA is proposing that the Director have limited,
discretionary authority to examine certain enumerated site-specific or
unique characteristics and impose additional section 316(b)
requirements. Such site-specific conditions would include location of
multiple cooling water intake structures in the same body of water,
seasonal variations in the aquatic environment affected by the cooling
water intake structure controlled by the permit (e.g., seasonal
spawning or migration of anadromous fishes such as west coast
salmonids), or the presence of regionally important species (e.g.,
commercially and recreationally valuable species, and fish ecologically
important to the structure and function of local fish assemblage such
as important forage species).
At Sec. 125.84(g), EPA is proposing that the Director must include
any more stringent requirements relating to the location, design,
construction, and capacity of a cooling water intake structure at a new
facility that are necessary to ensure attainment of water quality
standards, including designated uses, criteria, and antidegradation
requirements. This proposal is based on section 301(b)(1)(C) of the
CWA.
Finally, in developing the nationally applicable minimum
requirements that are being proposed today, EPA has taken into account
all the information that it was able to collect, develop, and solicit
regarding the location, design, construction, and capacity of cooling
water intake structures at new facilities. EPA concludes that these
requirements reflect the best technology available for minimizing
adverse environmental impact on a national level. In some cases,
however, data that could affect these requirements might not have been
available or might not have been considered by EPA during the
development of this proposal. Therefore, the lack of any provision for
deviation from nationally applicable BTA requirements could lead to
large numbers of petitions requesting EPA to amend the rule as it
applies to individual facilities or classes of facilities. This would
be an extremely time consuming process for EPA, the regulated
community, and other interested parties. Accordingly, EPA is proposing
procedures that would allow for adjustment, during permit proceedings,
of the requirements of Sec. 125.84 as they apply to certain cooling
water intake structures at new facilities.
Proposed Sec. 125.85 would allow the Director, in the permit
development process, to set alternative BTA requirements that are less
stringent than the nationally applicable requirements. Under
Sec. 125.85(a), any interested person may request that alternative
requirements be imposed in the permit. The Director also may propose
alternative requirements in the draft permit upon making the findings
indicated. Proposed Sec. 125.85(a)(2) provides that alternative
requirements that are less stringent than the requirements of
Sec. 125.84 would be approved only if compliance with the requirement
at issue would result in compliance costs wholly out of proportion to
the costs considered during development of the requirement at issue,
the request is made in accordance with 40 CFR part 124, the alternative
requirement requested is no less stringent than necessary, and the
alternative requirement will ensure compliance with sections 208(e) and
301(b)(1)(C) of the Clean Water Act.
Because new facilities have a great degree of flexibility in their
siting, in how their cooling water intake structures are otherwise
located, and in the design, construction and sizing of the structure,
cost is the only factor that would justify the imposition of less
stringent requirements as part of the proposed alternative requirements
approach. This is because other factors affecting the location, design,
construction, and capacity of cooling water intake structures at new
facilities can be addressed by modifications that may have cost
implications. The Agency notes that in the somewhat analogous case of
the new source performance standards that EPA establishes for the
discharge of effluent from new facilities in particular industrial
categories, alternate discharge standards are not allowed. However,
because this proposed rule would establish requirements for cooling
water intake structures at any type of facility in any industrial
category above the flow threshold proposed today, it might be possible,
in some instances, that the costs of complying with today's proposed
requirements would be wholly out of proportion to the costs EPA
considered and determined to be economically practicable. (See Section
VIII.C. below, the economic and technical support document, and the
economic and financial portions of the record for this proposal.) As
discussed at Section VIII.C., EPA has analyzed the cost of compliance
with today's proposed requirements for all facilities projected to be
built in the reasonably foreseeable future, as well as other types of
facilities that might be built at later dates (such as large base-load
steam electric generating facilities that do not use combined-cycle
technology) and concludes that these compliance costs would be
economically practicable for all types of facilities the Agency
[[Page 49092]]
considered. However, should an individual new facility demonstrate that
costs of compliance for a new facility would be wholly out of
proportion to the costs EPA considered and determined to be
economically practicable, the Director would have authority to adjust
BTA requirements accordingly.
Under proposed Sec. 125.85(a), alternative requirements would not
be granted on any grounds other than the cost of compliance, nor would
they be granted based on a particular facility's ability to pay for
technologies that would result in compliance with the requirements of
Sec. 125.84. Thus, so long as the costs of compliance are not wholly
out of proportion to the costs EPA considered and determined to be
economically practicable, the ability of an individual facility to pay
to attain compliance would not support the imposition of alternative
requirements. EPA invites comment on whether other factors should be
added to proposed Sec. 125.85(a). EPA also requests comment on an
additional basis for establishing alternative, less stringent
requirements, namely that the costs of compliance would be wholly
disproportionate to projected environmental benefits. The 1977 Draft
Guidance includes a similar provision. This wholly disproportionate
cost test could be provided either instead of, or in addition to, the
cost test being proposed today as part of Sec. 125.85(a) (i.e., costs
wholly out of proportion to the costs EPA considered in the rule
development).
Proposed Sec. 125.85(a) would specify procedures to be used in the
establishment of alternative requirements. The burden is on the person
requesting the alternative requirement to demonstrate that alternative
requirements should be imposed and that the appropriate requirements of
Sec. 125.85(a) have been met. The person requesting the alternative
requirements should refer to all relevant information, including the
support documents for this rulemaking, all associated data collected
for use in developing each requirement, and other relevant information
that is kept on public file by EPA.
EPA invites comment on all aspects of this proposal for
establishing alternative BTA requirements.
Under an alternative approach, EPA would not provide for any
deviation from the nationally applicable requirements. Some
stakeholders have stated that the Clean Water Act requires that uniform
BTA requirements be applicable nationally. Opponents of deviation from
uniform national BTA requirements also believe that alternative
requirements are especially inappropriate for new facilities, which
they believe can be designed and sited to take the requirements of the
new facility rule into account. EPA also invites comment on this
alternative approach.
8. Other Approaches Being Considered by EPA
In addition to or in lieu of today's proposal for alternative BTA
requirements (discussed above), EPA also is considering an approach
that would require the Director to consider whether individual
facilities might have site-specific characteristics that make one or
more of these national BTA requirements insufficient to minimize
adverse environmental impact. Such site-specific characteristics might
include location of multiple cooling water intake structures in the
same body of water, seasonal variations in the aquatic environment
affected by the cooling water intake structure controlled by the permit
(such as seasonal spawning or migration), the presence of regionally
important aquatic organisms, or other relevant characteristics. If the
Director determined that one or more of the national requirements does
not minimize adverse environmental impact, the Director would be
required to impose such additional measures as might be needed to
ensure that the facility employs the best technology available for
minimizing adverse environmental impact. Regulatory language such as
the following could be used to implement this approach:
The Director must consider whether individual facilities have
site-specific characteristics that make one or more of the cooling
water intake structure BTA requirements in Sec. 125.84(a)-(e)
insufficient to minimize adverse environmental impact. If the
Director finds that the requirements of Sec. 125.84(a)-(e) are
insufficient to ensure that adverse environmental impact caused by a
cooling water intake structure at a new facility will be minimized,
he may impose additional requirements in the permit that are
reasonably necessary to minimize adverse environmental impact.
EPA also is considering an approach under which the Director would
have broad, discretionary authority to include permit conditions under
section 316(b), in addition to the minimum requirements specified in
today's proposal, that are reasonably necessary to minimize adverse
environmental impact caused by a cooling water intake structure. The
Director would not impose additional requirements if none are
considered necessary; however, if a Director determines that the
minimum requirements described above are not sufficient to minimize the
specific adverse environmental impact associated with a particular
cooling water intake structure, he or she would be authorized to
include appropriate additional conditions in the permit or to deny the
permit as warranted. This differs from the previous alternative in that
under this alternative the Director would not be required to impose
more stringent conditions. Also, in comparison to the proposed
Sec. 125.84(f), this approach would not provide a permit applicant with
as much information to judge whether the Director is likely to impose
additional requirements because the list of conditions the Director
could consider would not be limited and enumerated. On the other hand,
this approach would provide the Director with authority under this
proposed rule to consider other unique and/or site-specific
characteristics that might be important at a particular location to
ensure that adverse environmental impact is minimized.
Finally, EPA is considering an approach under which the Director
would have no section 316(b) authority to examine site-specific
conditions and impose additional section 316(b) requirements. The
Agency invites comment on each of these approaches to today's proposal
and on the characteristics that a Director would consider in
determining whether to impose additional section 316(b) requirements.
As discussed in item 7 above, today's proposal would allow the
Director to specify alternative BTA requirements in limited
circumstances. In addition, EPA is considering a variance alternative
based on the use of innovative cooling water intake structure design
and operation to minimize adverse environmental impact. The Agency is
aware that existing and new facilities are using various designs for
cooling water intake structures, which consist of passive and other
innovative intake systems that use natural flow, gravity, some type of
natural or artificial barrier, or some other feature to reduce
impingement and entrainment. Examples include artificial filter beds,
radial wells, porous dikes, and perforated pipes. (Because of inherent
limitations, these designs might not work effectively at all
facilities, such as high-flow facilities.) In some cases facilities
that use these types of intakes can minimize their rates of impingement
and entrainment to levels commensurate with those achieved under this
proposed rule at a lower cost than conventional technologies would
[[Page 49093]]
allow, yet these facilities might not meet all of the minimum
requirements EPA is proposing. This approach would encourage the use of
innovative technologies provided that such technologies minimize
adverse environmental impact. If EPA implemented this approach,
language such as the following could be added to the regulation:
In the case of any new facility that proposes to design or
operate a cooling water intake structure in an innovative manner
(for example, by using natural flow, gravity, a natural or
artificial barrier, or other innovative feature to reduce
impingement and entrainment), the Director may impose requirements
in the permit based on the use of the innovative design feature or
method of operation in place of the requirements specified in
Sec. 125.84(a)-(e), if the Director determines (1) that the
alternative requirements will minimize impingement and entrainment
of aquatic organisms to a level commensurate with the level that
would be attained if the facility were subject to the requirements
specified in Sec. 125.84(a)-(e), and (2) that the innovative design
feature or method of operation has the potential for industry-wide
operation.
This option could also include a requirement for consultation with,
or approval by, the Administrator.
EPA requests comment on these approaches. In particular, EPA
requests comment on (1) whether the new facility rule should provide
for any type of variance from the national BTA requirements or the
proposed, limited opportunity to specify alternative BTA requirements;
(2) the factors that should be considered in any such variance; (3) how
BTA requirements based on the use of innovative technologies could be
structured to encourage technological innovation and ensure that
qualifying facilities would minimize adverse environmental impact; and
(4) whether there is a design intake volume above which a variance for
use of innovative technologies should not be available.
B. What Technologies Can Be Used To Meet the Regulatory Requirements?
EPA has identified a number of intake technologies available for
installation at cooling water intake structures to minimize adverse
environmental impact. The intake technologies identified include some
that are currently in use at facilities with cooling water intake
structures in the United States and some that are still being evaluated
or simply not in use at any facilities in the United States. The intake
technologies can be classified into four categories:
Intake Screen Systems: single-entry, single-exit vertical
traveling screens; modified traveling screens (ristroph screens);
single-entry, single-exit inclined traveling screens; single-entry,
double-exit vertical traveling screens; double-entry, single-exit
vertical traveling screens (dual-flow screens); horizontal traveling
screens; fine mesh screens mounted on traveling screens; horizontal
drum screens; vertical drum screens; rotating disk screens; and fixed
screens.
Passive Intake Systems: wedge-wire screens, perforated
pipes, perforated plates, porous dikes, artificial filter beds, and
leaky dams.
Diversion or Avoidance Systems: louvers, velocity caps,
barrier nets, air bubble barriers, electrical barriers, light barriers,
sound barriers, cable and chain barriers, and water jet curtains.
Fish Handling Systems: fish pumps, lift baskets, fish
bypasses, fish baskets, fish returns, fish troughs, and screen washes.
Under the proposed rule, facilities would be required to submit a
plan that contains information on the technologies they propose to
implement based on the result of a Source Water Baseline
Characteristics study (see Section IX.A.1). Each of the methods
identified above is discussed in further detail below. Technologies
other than bar racks and traveling screens are typically used only by
traditional steam electric utility power plants. For a more detailed
description of the following technologies, refer to Preliminary
Regulatory Development Section 316(b) of the Clean Water Act,
Background Paper 3: Cooling Water Intake Technologies (April 1994) and
Supplement to Background Paper 3: Cooling Water Intake Technologies
(September 30, 1996) in the docket for today's proposed rule.
1. Intake Screen Systems
The technologies classified as intake screen systems are mainly
devices that screen debris mechanically. Passive intake systems
discussed in the next section, require little or no mechanical
activity.
EPA has classified the following intake technologies as intake
screen systems: single-entry, single-exit vertical traveling screens;
modified traveling screens (ristroph screens); single-entry, single-
exit inclined traveling screens; single-entry, double-exit vertical
traveling screens; double-entry, single-exit vertical traveling screens
(dual-flow screens); horizontal traveling screens; fine mesh screens
mounted on traveling screens; horizontal drum screens; vertical drum
screens; rotating disk screens; and fixed screens.
Intake screen systems have been found to be limited in their
ability to minimize adverse aquatic impact. This does not mean that
they do not aid in reducing some impingement and entrainment of adult
and juvenile fish. However, conventional traveling screens (the most
widely used screening device in the United States) and most of the
other types of traveling screens have been installed mainly for their
ability to prevent debris from entering the cooling system. Fish
impinged on those screens often suffocate or are injured when washed
off the screen. They may or may not even be returned to the water body.
In many cases, many of the fish are lost; in some cases, all of the
fish are lost.
Conventional through-flow traveling screens have been modified so
that fish impinged on the screens can be removed with reduced stress
and mortality. These modified traveling screens have been shown to be
more effective than conventional screens at lowering fish impingement
and mortality at several locations. Some facilities have used fine mesh
mounted on traveling screens to minimize entrainment. However, the
amount of reduction attributable to any of these devices has been found
to depend on the species involved, the water body type, and the age or
size of the species present.
2. Passive Intake Systems (Physical Exclusion Devices)
Passive intake systems are devices that screen out debris and biota
with little or no mechanical activity required. Most of these systems
are based on achieving very low withdrawal velocities at the screening
media so that all but free-floating organisms avoid the intake
altogether.
EPA considers the following intake technologies to be passive
intake systems (i.e., physical exclusion devices): wedge-wire screens,
perforated pipes, perforated plates, porous dikes, artificial filter
beds, Gunderbooms, and leaky dams.
Wedge-wire screens appear to offer a potentially effective means of
reducing fish losses. Testing of wedge-wire screens has demonstrated
that fish impingement is virtually eliminated and that entrainment of
fish eggs and larvae is reduced. However, the application of wedge-wire
screens is limited to cooling water intake structures that withdraw
lower volumes because of size limitations of the screens themselves. In
fact, physical size is the limiting factor of most passive systems,
thus requiring the clustering of a number of screening units.
Siltation, biofouling, and frazil ice also limit locations where
passive intake systems can be used. In addition, most of the research
for the reduction of
[[Page 49094]]
entrainment has concentrated on the intake of relatively small
quantities of water, in the range of 28 to 56 million gallons per day,
typical of the make-up water supply of large closed-cycle recirculating
cooling water systems and of nuclear power plant service water systems.
3. Diversion or Avoidance Systems
Diversion or avoidance devices are also called behavioral barriers.
These devices are designed to take advantage of the natural behavioral
patterns of fish so that the fish will not enter an intake structure.
Diversion devices either guide aquatic organisms such as fish, crabs,
and shrimp away from an intake structure or guide them into a bypass
system so that they are directed or physically removed from the intake
area. An example of a diversion device is the louver. Avoidance
devices, on the other hand, are used to make the intake unattractive to
aquatic organisms so that they avoid the area of the intake altogether.
Sound barriers are a typical avoidance device. They create sounds that
the aquatic organisms do not like, forcing them to avoid the intake
area. Unlike the screening and physical exclusion devices already
discussed, behavioral barriers are used specifically to keep fish and
other motile organisms from entering the intake system. Like the
technologies discussed above, these devices are not always used to
protect fish and organisms. They might be used to protect equipment at
the facility that could become fouled and require more maintenance if
aquatic organisms are allowed to enter the intake.
EPA considers the following intake technologies to be fish
diversion and avoidance systems: louvers, velocity caps, barrier nets,
air bubble barriers, electrical barriers, light barriers, sound
barriers, cable and chain barriers, and water jet curtains.
Diversion or avoidance systems do not protect organisms or fish
that are nonmotile (i.e., those that are free-floating or cannot move
themselves about) or in early life stages because they rely on
behavioral characteristics. Therefore, the effectiveness and
performance of the devices are species-specific. In addition, many of
the diversion or avoidance devices are appropriate only for seasonal
entrainment problems. To evaluate the applicability of these
technologies, site-specific testing would be required at most sites
where these devices are to be used.
4. Fish-Handling Systems and Other Technologies
Fish-handling systems and other technologies are used alone or in
conjunction with screening systems for the protection of aquatic life.
EPA considers the following intake technologies to be fish-handling
systems: fish pumps, lift baskets, fish bypasses, fish baskets, fish
returns, fish troughs, and screen washes. These technologies can be
used alone or in a series such as fish buckets, fish troughs, and a
spray wash system. Fish-handling technologies are used to remove fish
that congregate in front of a screen system or to divert them to
holding areas. Fish that congregate near screens are removed from the
area by fish pumps, lift baskets, fish troughs, and fish returns and
are returned to open waters, reducing impacts on the aquatic community.
C. How Is Cost Being Considered in Establishing BTA for New Facilities?
For today's proposed rule, EPA has considered four cost tests that
could be used to evaluate the costs that would be associated with this
proposal are reasonable in relation to the environmental benefits to be
derived. The Agency used one of these tests as a basis for determining
on a national level that the proposed requirements would be
economically practicable.
Although section 316(b) does not explicitly state that costs must
be considered in determining appropriate cooling water intake structure
controls, 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). The
1976 preamble also noted that 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.'' \52\ This position reflects
congressional concern that the application of best technology available
should not impose an impracticable and unbearable economic burden.
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\52\ 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).
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EPA concludes that a formal cost test is appropriate in determining
``best technology available commercially at an economically practicable
cost.'' In determining the most appropriate cost test, the Agency
considered (1) the wholly disproportionate cost test, (2) the
compliance cost/revenue test, (3) the compliance cost/construction cost
test, and (4) the compliance cost/discounted cash flow test. EPA also
considered two methods for implementing these cost tests: a case-by-
case or a national determination.
Under the wholly disproportionate cost test, a cooling water intake
structure technology would not be deemed to reflect BTA if the
incremental costs of requiring the use of that technology are wholly
disproportionate to the environmental benefits to be gained through its
use. Several section 316(b) administrative decisions have stated that
this test is the most appropriate for determining economic burden.\53\
This is also the approach adopted discussed in the 1977 Draft Guidance.
---------------------------------------------------------------------------
\53\ See, In the Matter of Public Service Company of New
Hampshire, 10 MRC 1257 (6/10/77)(The Seabrook II Decision);
Brunswick I, Region IV, EPA 3 (Nov. 7, 1977) (Initial Decision re:
Permit No. NC007064); In re Tennessee Valley Authority, John Sevier
Steam Plant: NPDES Permit No. TN0005436 (Jan. 23, 1986); In re
Florida Power Corp., Crystal River Power Plant Units 1, 2, & 3:NPDES
Permit No. FL0000159 (Sept. 1, 1988).
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Historically, the cases in which costs have been determined to be
wholly disproportionate have involved existing facilities that have
been required to retrofit their cooling water intake structures to
implement BTA. Given the characteristics of the regulated industries,
such retrofitting to meet BTA often meant requiring the installation of
cooling towers along with necessary modifications to the plant and
significant capital expenditures and down time required for
installation. In contrast, new facilities would not incur retrofit
costs. Rather, new facilities would incur only the cost of any
incremental difference between their planned cooling water intake
structure technology and that required under a rule based on today's
proposal. Given that many new facilities are designing their cooling
water intake structures in a manner consistent with today's proposed
BTA requirements, EPA concludes that these incremental costs are
unlikely to be large.
A limitation of using the wholly disproportionate test for new
facilities, on either a national or case-by-case basis, is that the
impingement and entrainment estimated before a facility is built can be
very imprecise. There are numerous documented cases among existing
facilities in which the rates of
[[Page 49095]]
impingement and entrainment rates predicted by the facility were
substantially lower than the impingement and entrainment that actually
occurred during operation. Brayton Point is an example of the
underestimation of impacts that can occur.\54\ Because of the
difficulty in prospectively estimating impingement and entrainment
rates at new facilities, EPA has chosen not to use the wholly
disproportionate cost test to estimate the impact of today's proposal.
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\54\ Mark Gibson, ``Comparison of Trends in the Finfish
Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to
Operations of the New England Power Brayton Point Station,'' Rhode
Island Division Fish and Wildlife, Marine Fisheries Office, June
1995 and revised August 1996.
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EPA also considered three economic achievability tests. First, EPA
considered a compliance cost/revenue test to assess economic
achievability by comparing the magnitude of annualized compliance costs
with the revenues the facility is expected to generate. This is an
appealing test because it compares the cost of reducing adverse
environmental impact from the operation of the facility with the
economic value (i.e., revenue) the facility creates. Under this
alternative, EPA would establish a threshold to identify when annual
compliance costs constitute a disproportionate percentage of projected
annual income. This test could be implemented on a national or case-by-
case basis because a firm should have an estimate of expected revenues
when it applies for a loan to build a new facility.
EPA also considered a compliance cost/construction cost test to
assess economic impacts associated with complying with this proposed
rule. This test compares compliance costs with the capital costs of
building the facility. Compliance costs would include all those costs
incurred by new facilities to meet the requirements of the proposed
rule. The compliance cost/construction test is appealing because it
shows the percentage increase in the total cost of getting the facility
operational as a result of the section 316(b) regulations, providing a
perspective on the relative magnitude of compliance requirements. Under
this alternative EPA would establish standards that identify when
initial section 316(b) compliance costs constitute a disproportionate
percentage of total facility construction costs. This test has the
advantage of being easy to perform on a case-by-case basis because it
is based on engineering and construction costs and therefore is more
precise than the other tests such as the discounted cash flow test. On
the other hand, there are drawbacks to applying this test nationally.
Information on average construction costs of new electric generating
facilities is available from the Energy Information Administration
(EIA), but this information is not available for other industries nor
is it transferable across industries. Additional site-specific
information on construction costs for planned cooling water intake
structure generators is available from public sources. However, there
are considerable inconsistencies in what components of capital costs
are reported. As with Energy Information Administration-reported
average construction costs, this information is generally available
only for new steam electric generating facilities, not for other
manufacturing facilities.
The final alternative EPA considered is a compliance cost/
discounted cash flow test to determine economic achievability.
Discounted cash flow is present discounted value of future cash flow.
This test is useful because it examines the effects of compliance with
today's proposed rule on the facility's cash flow. Although a
discounted cash flow test can be performed for existing facilities, on
both a national and case-by-case basis, this test is not appropriate
for new facilities because of a lack of available data and the analytic
requirements it would impose. Because new facilities do not have a cash
flow prior to operations, this test would require more estimation and
would be far less precise than the other tests.
EPA used the compliance cost/revenue test to determine whether
today's proposed section 316(b) requirements are economically
practicable. This test uses the ratio of annualized compliance costs to
estimated annual revenues to assess impacts on new facilities. The
Agency is proposing this as the most appropriate test to evaluate
economic practicability for several reasons. First, EPA has extensive
experience using this test. For example, under the Regulatory
Flexibility Act, the Agency uses this test as a screening tool (along
with the number of facilities expected to be affected) to determine
whether a detailed analysis of impacts on small entities is necessary.
EPA also frequently uses this test to evaluate economic impacts in the
effluent guidelines program. Second, the data needed to perform the
test are available or can be readily projected, whereas the data
required to conduct the compliance cost/construction cost test and the
compliance cost/discounted cash flow test are not available or are more
difficult to obtain. Third, this test provides a reliable measure of
whether costs are ``economically practicable.''
EPA calculated compliance costs for projected new steam electric
generating and manufacturing facilities and applied screening tests to
assess the impacts of those costs on the economic viability of the new
facilities. The results of EPA's economic impact analysis indicate that
the compliance costs of this proposal are generally small compared with
the estimated revenues of the affected facilities, ranging from 0.1
percent to 4.2 percent of revenues for steam electric generating
facilities and less than 0.1 percent to 8.8 percent of revenues for
manufacturing facilities. Only two of the 35 projected new
manufacturing facilities were estimated to incur annualized compliance
costs greater than one percent of annual revenues. For steam electric
generating facilities, EPA also found that compliance costs as a
percent of construction costs are small. The total capital costs and
cost of initial permitting for steam electric generating facilities
ranged between less than 0.1 percent to 0.3 percent of the overall cost
of plant construction. These results indicate that the proposed
requirements are economically practicable, and are achievable by the
affected new facilities.
The Agency also has determined that the proposed rule would not
have an adverse economic impact on industry as a whole. EPA finds that
the proposed rule is economically practicable and achievable nationally
because a very small percentage of facilities are expected to be
affected by the regulation and the impact on those that would be
affected would be small.
The electricity generating industry would not be significantly
affected by today's proposal. Today's proposed rule only affects
electric generating facilities that generate electricity with a steam
prime mover. Although these facilities constitute approximately 75
percent of the total electric generating industry, approximately 88
percent of the new facilities that do have a steam-electric prime mover
and for which EPA was able to obtain cooling water information would
not be subject to this regulation because they do not withdraw cooling
water from waters of the U.S. or because they are not required to have
an NPDES permit. In general, the Agency concludes that economic impacts
on the electric generating industry from this proposed rule would be
economically practicable because facilities required to comply with the
proposed requirements would have the opportunity to be redesigned to
avoid or minimize costs.
The costs to new manufacturing facilities also would not be
significantly
[[Page 49096]]
affected by today's proposed regulation also would be economically
practicable. An analysis of the data collected using the Agency's
section 316(b) Industry Screener Questionnaire indicates that in the
industry sectors with at least one new facility that is subject to this
proposed rule, only 364 of the 2,037 existing facilities targeted, or
17.8 percent, have an NPDES permit and directly withdraw cooling water
from waters of the U.S. Of these 364 facilities, only 232 facilities
are estimated to withdraw more than two (2) MGD. In addition, new
facilities can be expected to have less costly alternatives for
complying with the proposed rule than would existing facilities for
which location, design, construction, and capacity decisions have
already been made . Existing facilities might require retrofitting if
subject to the same requirements proposed today.
As discussed above, the Agency evaluated the costs and impacts of
the section 316(b) requirements proposed today on a national level. The
Agency has determined that the incremental costs of installing the BTA
requirements proposed today are economically practicable at a national
level, although EPA recognizes that costs could be significant for
individual facilities. EPA believes that evaluating costs and impacts
on a national level is most appropriate for a proposed rule that
establishes minimum section 316(b) requirements for large numbers of
new facilities nationally. This approach at a national level would
significantly reduce the burden on permit writers because they would
then not be required to implement a cost test when developing
appropriate permit conditions to implement the proposed national
requirements on a facility-specific basis. However, as noted above, EPA
is also requesting comment on several regulatory options under which
costs and benefits could be considered on a case-by-case basis in
determining BTA.
EPA invites comment on all aspects of the proposed cost test and
the Agency's proposal to assess the impact of today's proposed rule on
a national level.
IX. Implementation
Under the proposed rule, section 316(b) requirements would be
implemented in an NPDES permit. The regulations would establish
application, monitoring, recordkeeping, and reporting requirements for
new facilities. The proposed rule would also include requirements for
Directors in developing NPDES permits for new facilities. The proposed
rule states that the Director, at a minimum, must include in the permit
the cooling water intake structure requirements at Sec. 125.84,
monitoring conditions at Sec. 125.87, and recordkeeping and reporting
requirements at Sec. 125.88.
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, additional technology plans, and the
recordkeeping and reporting requirements in these regulations.
A. What Information Must I Submit to the Director When I Apply for My
New or Reissued NPDES Permit?
The NPDES application process under 40 CFR 122.21 requires that
facilities submit information and data 180 days prior to the
commencement of a discharge. If you are the owner or operator of a
facility that meets the new facility definition, you would be required
to submit the information required under Sec. 125.86 of today's
proposed rule with your initial permit application and with subsequent
applications for permit reissuance. The Director would review the
information you provide and, based on the approach discussed in Section
IX.B, would determine whether your facility is a new facility and
establish the appropriate requirements to be applied to the cooling
water intake structure(s).
Today's proposal would require you to submit four categories of
information when you apply or reapply for your NPDES permit: (1)
Results of the Source Water Baseline Biological Characterization study;
(2) source water physical data; (3) cooling water intake structure
velocity and flow data; and (4) data to show compliance with the flow
requirements, velocity requirement, flow reduction requirement, and
additional technology requirements. In addition, if you are seeking an
alternative requirement under Sec. 125.85, you must submit a fifth
item: Data that demonstrate that your compliance costs are wholly out
of proportion to the costs considered by EPA in establishing by EPA in
establishing the requirements of Sec. 125.84(a) through (e). You must
begin to collect data for the Source Water Baseline Biological
Characterization study at least 1 year prior to submitting your
application to the Director. If you are required to submit a sample
plan (i.e., your cooling water intake structure is located inside or
less than 50 meters outside the littoral zone of the water body), you
must submit your sample plan for review and approval or disapproval to
the Director at least 90 days before any sampling activities are
scheduled to begin. An example schedule of when the activities
associated with a facility's permit application might be performed is
provided in Exhibit 2.
EXHIBIT 2.--Example of Schedule for Permit Application Activity
------------------------------------------------------------------------
Days prior to commencement
NPDES permit application activity of operation
------------------------------------------------------------------------
Submit sampling plan for Source Water 635
Baseline Biological Characterization.
Begin sampling for Source Water Baseline 545
Biological Characterization.
Submit permit application................. 180
------------------------------------------------------------------------
1. Source Water Baseline Biological Characterization Data
Proposed Sec. 125.86(a) would require baseline ambient biological
data in the form of a Source Water Baseline Biological
Characterization. This study would establish an initial baseline for
evaluating potential impact from the cooling water intake structure
before the start of operation. In addition, you would be required to
reevaluate the study and perform additional ambient monitoring before
submitting an application for the reissuance of the permit to establish
or reestablish the baseline for the next permit term. The Director
would use the study to identify the species most susceptible to
impingement and entrainment, their life stages, their abundance in the
source water, and their environmental requirements and habitat.
Proposed Sec. 125.86(a) also would require you to submit the
results of a Source Water Baseline Biological Characterization at the
time of your NPDES permit application. As part of the Source Water
Baseline Biological Characterization, if you must implement additional
design and construction technologies, you would be required to collect
data over a period of one year. Before you start any sampling for the
study, you would be required to submit a sampling plan to the Director
for review and approval. The proposed rule would require you to submit
the sampling plan 90 days before you intend to start the study. You are
encouraged to make the sampling plan available to the following
entities for review and comment: Federal agencies such as the U.S. Fish
and Wildlife Service, the National Marine Fisheries
[[Page 49097]]
Service, and the U.S. Army Corps of Engineers; appropriate State fish
and wildlife agencies; local fish and wildlife organizations or
advocacy groups; and the public. If such coordination and public
involvement is conducted, you should identify and indicate the results
of this effort in your application submission to the Director. Public
involvement in developing the sampling plan would facilitate the
Director's review and approval of the plan.
In addition, Sec. 125.86(a)(3) would require that you identify all
threatened and endangered species that might be susceptible to
impingement and entrainment. The Director might coordinate a review of
your list with the U.S. Fish and Wildlife Service and/or National
Marine Fisheries Service staff to ensure that potential impacts to
threatened and endangered species have been addressed.
The study would begin with a site-specific, preoperational baseline
assessment to determine the presence of fish and shellfish (eggs,
larvae, post larvae, juveniles, and adults) in the surface water
serving the cooling water intake structure. Their presence during the
course of a year would need to be documented in terms of the kinds,
numbers, life stages, and duration of occurrence in the source water in
close proximity to the proposed location of the cooling water intake
structure. This information would identify the community of fish and
shellfish that would potentially be subject to impingement and
entrainment effects. Information supporting this documentation would
likely be derived from new, site-specific studies and possibly from
historical records applicable to the water body serving the proposed
cooling water intake structure. In all cases, the data to be used would
need to be appropriately certified through established quality
assurance procedures.
The Source Water Baseline Biological Characterization would serve
two purposes. First, the Director would use the study to identify
species and their relative numbers potentially subject to intake
effects following implementation of the location, flow, and velocity
requirements. Then during each permit reissuance cycle, the Director
would compare the preoperational ambient data with the post operational
data to evaluate the efficacy of the location, flow, and velocity
requirements. Second, when the cooling water intake structure is
located in the more sensitive area of a water body, the Director would
use the findings of the Source Water Baseline Biological
Characterization study to define the need for additional design and
construction technologies.
One source of information is past entrainment and impingement
assessments prepared by other facilities using the same water source
for cooling purposes. These studies can potentially provide a wealth of
information regarding sampling strategies, species that might already
be affected by intake effects, and trends in species mix and relative
abundance. In the Economic and Engineering Analysis of the proposed
Sec. 316 New Facility Rule, EPA has estimated a cost of approximately
$32,000 per facility for all activities, including monitoring and
capital and O & M costs associated with the Source Water Baseline
Biological Characterization. EPA is aware that facilities have
typically spent considerably more than this on studies to support site-
specific section 316(b) determinations in the past. However, EPA
expects that the Baseline Characterization Study required in the
proposed rule would generally be less comprehensive (and thus less
expensive) that section 316(b) studies that have been conducted in the
past because the scope and level of detail required in the Baseline
Characterization Study is more limited that studies typically
submitted. EPA requests comment on its projected costs for the Baseline
Characterization.
2. Source Water Physical Data
Proposed section 125.86(b)(1) would require you to provide source
water information to the Director. The Director would use the source
water data to evaluate the potential impact on the water body in which
the intake structure is located. Depending on its location in the
source water and the source water type, the intake structure would
affect different species or life stages. For example, intakes located
in the littoral zone are more likely to affect spawning and nursery
areas, whereas intakes located offshore are more likely to affect
migratory routes. In addition, the proximity of the intake structures
to sensitive aquatic ecological areas might result in potential adverse
environmental impact. Source water information that you would be
required to submit includes a description and a drawing of the physical
configurations of the source water body where the cooling water intake
structure is located, source water flow or volume data, and
documentation delineating the littoral zone, such as submerged
vegetation and substrate data, for the water body in relation to each
cooling water intake structure.
Your documentation supporting the littoral zone determination
should include light penetration and hydromorphological data, submerged
aquatic vegetation data, and substrate data. You may measure littoral
zones through transects perpendicular to shore to identify the point of
transition between the littoral and deeper (e.g., profundal) portions
of the waterbody. A minimum of three transects would be established,
with one at the proposed intake location, one upstream within the area
of influence, and one downstream of the proposed intake in the area of
influence. The first, and most important, criterion of the littoral
zone boundary is where light penetration is not sufficient to support
submerged aquatic vegetation. A photometer to measure incident light or
a Secchi disk to make visual observations can provide rapid
measurements along the transects. Depth can be readily measured with a
fathometer or weighted line calibrated in meters. These two
measurements will provide information on whether light reaches the
bottom to support vegetation growth and whether the slope of the bottom
changes dramatically enough to indicate an abrupt end to the littoral
zone. A change in substrate composition sometimes occurs as the
littoral zone ends. Therefore, grab samples can be taken along the
transects and evaluated for substrate composition (e.g., gravel, sand,
silt, clay). After you delineate the littoral zone, the last step in
this process is to determine where the cooling water intake structure
is located in relation to the littoral zone.
3. Cooling Water Intake Structure Velocity and Flow Data
Proposed section 125.86(b)(2) would require you to submit
information on the intake structure and to provide a water balance
diagram for your facility. The Director would use this information to
evaluate the potential for impingement and entrainment of aquatic
organisms. The design of the intake structure and the location in the
water column would allow the Director to evaluate which of the
requirements in today's proposed rule apply to the facility (for
example, design intake velocity, flow rate, and location relative to
the littoral zone). The water balance diagram provides the Director
with a complete accounting of the flow in and out of the facility. A
water balance diagram is the most effective tool to evaluate the water
use patterns at a facility and to determine water used for cooling
purposes, makeup, and processes.
To demonstrate your design velocity, you would need to provide to
the
[[Page 49098]]
Director the engineering calculations you used to calculate your
velocity.
If your facility is located on a freshwater river or stream, you
would need to provide calculations that demonstrate that you meet the
flow requirements for both the mean annual flow and the 7Q10 flow. The
7Q10 flow is the lowest average seven-consecutive-day low flow with an
average recurrence frequency of once in 10 years determined
hydrologically. If your facility is located on an estuary or a tidal
river, you would need to calculate the tidal excursion and provide the
flow data for your facility and the supporting calculations.
The tidal excursion distance can be computed using three different
methods ranging from simple to complex. The simple method involves
using available tidal velocities that can be obtained from the Tidal
Current Tables formerly published by the National Ocean Service of the
National Oceanic and Atmospheric Administration (NOAA) and currently
printed and distributed by private companies (available at book stores
or marine supply stores). The mid-range method involves computing the
tidal excursion distance using the Tidal Prism Method.\55\ The complex
method involves the use of a 2-dimensional or 3-dimensional
hydrodynamic model. The simplest method to use is the following:
---------------------------------------------------------------------------
\55\ E. Diana, A.Y. Kuo. B.J. Neilson, C.F. Cerco, and P.V.
Hyer. Tidal Prism Model Manual, Virginia Institute of Marine
Science, Gloucester Point, VA, January 1987.
---------------------------------------------------------------------------
(1) Locate the facility on either a NOAA nautical chart or a base
map created from the USGS 1:100,000 scale Digital Line Graph (DLG) data
available from the USGS Internet web site. These DLG Data can be
imported into a computer-aided design (CAD)-based program or geographic
information system (GIS). If these tools are unavailable, 1:100,000
scale topographic maps (USGS) can be used.
(2) Obtain maximum flood and ebb velocities (in meters per second)
for the water body in the area of the cooling water intake structure
from NOAA Tidal Current Tables.
(3) Calculate average flood and ebb velocities (in meters per
second) over the entire flood or ebb cycle using the maximum flow and
ebb velocities from 2 above.
[GRAPHIC] [TIFF OMITTED] TP10AU00.001
[GRAPHIC] [TIFF OMITTED] TP10AU00.002
(4) Calculate the flood and ebb tidal excursion distance using the
average flood and ebb velocities from 3 above.
[GRAPHIC] [TIFF OMITTED] TP10AU00.003
[GRAPHIC] [TIFF OMITTED] TP10AU00.004
(5) Using the total of the flood and ebb distances from above,
define the diameter of a circle that is centered over the opening of
the cooling water intake structure.
(6) Define the area of the water body that falls within the area of
the circle (see Appendix 3 to Preamble). The area of the water body, if
smaller than the total area of the circle might be determined either by
using a planimeter or by digitizing the area of the water body using a
CAD-based program or GIS.
For cooling water intake structures located offshore in large water
bodies, the area of the water body might equal the entire area of the
circle (see D in Appendix 3 to Preamble). For cooling water intake
structures located flush with the shoreline, the area might be
essentially a semicircle (see C in Appendix 3 to Preamble). For cooling
water intake structures located in the upper reaches of a tidal river,
the area might be some smaller portion of the area of the circle (see A
in Appendix 3 to Preamble).
(7) Calculate the average depth of the water body area defined in 6
above. Depths can easily be obtained from bathymetric or nautical
charts available from NOAA. In many areas, depths are available in
digital form.
(8) Calculate a volume by multiplying the area of the water body
defined in 5 by the average depth from 7. Alternatively, the actual
volume can be calculated directly with a GIS system using digital
bathymetric data for the defined area.
The Director would use the facility's water balance diagram to
identify the proportion of intake water used for cooling, makeup, and
process water. A simplified water balance diagram that gives a complete
picture of the total flow in and out of the facility would allow the
Director to evaluate compliance with the flow reduction requirements.
4. Data To Show Compliance With the Flow Requirements, Velocity
Requirement, Flow Reduction Requirement, and Additional Design and
Construction Technology Requirement
Today's proposal at Sec. 125.86(b) (3) through (6) would require
you to provide information on additional operating procedures,
technologies, and plans to demonstrate compliance with the applicable
requirements set forth in today's proposed rule. You would be required
to provide to the Director a plan containing narrative descriptions and
engineering design calculations of the technologies the facility
proposes to implement to demonstrate compliance with the flow,
velocity, flow reduction, and additional design and construction
technology requirements. If your facility will meet the flow reduction
requirement through reuse of 100 percent of the cooling water withdrawn
from a source water, you must provide a demonstration that 100 percent
of the cooling water is reused in one or more unit processes at the
facility.
EPA requests comment on all aspects of the proposed data provision
requirements.
5. Data To Support a Request for Alternative Requirements
If you request an alternative requirement, today's proposal at
Sec. 125.86(b)(7) would require that you submit all data showing that
your
[[Page 49099]]
compliance costs are wholly out of proportion to the costs EPA
considered during development of the requirements at issue. Compliance
costs that EPA considered were sub-divided into one-time costs and
recurring costs. Examples of one-time costs include capital and permit
application costs. Examples of recurring costs include operation and
maintenance costs, permit renewal costs, and monitoring, recordkeeping
and reporting costs.
B. How Would the Director Determine the Appropriate Cooling Water
Intake Structure Requirements?
The Director's first step would be to determine whether the
facility is covered by the requirements in these proposed regulations
for new facilities. If the answer is ``yes'' to all the following
questions, the facility would be required to meet the requirements of
this proposed regulation:
(1) Is the facility a ``new facility'' as defined in Sec. 125.83?
(2) Does the new facility have a ``cooling water intake structure''
as defined in Sec. 125.83?
Is at least 25 percent of the water withdrawn by the
facility used for cooling purposes?
Is the cooling water withdrawn from waters of the U.S.?
(3) Does the new facility have a design intake flow of greater than
2 million gallons per day? \56\
---------------------------------------------------------------------------
\56\ If the answer is ``no'' to the flow parameter and the
answer is ``yes'' to all the other questions, the Director would use
best professional judgment on a case-by-case basis to establish
permit conditions that ensure compliance with section 316(b).
---------------------------------------------------------------------------
(4) Does the new facility discharge pollutants to waters of the
U.S., including storm water-only discharges?
If these proposed regulations are applicable to the new facility,
the second step would be to determine the locational factors associated
with the new facility's cooling water intake structure. The Director
would first review the information that the new facility provided to
validate the source water body type in which the cooling water intake
structure is located (freshwater stream or river, lake or reservoir,
estuary or tidal river, or ocean). (As discussed above, the new
facility would need to identify the source water body type in the
permit application and provide the appropriate documentation to support
the water body type classification.) After validating the water body
type, the Director's next task would be to verify the facility's
delineation of the littoral zone boundaries. The Director would review
the supporting material the facility provided in the permit
application. The Director would also review the engineering drawings
and the locational maps the new facility provided, documenting the
physical placement of the cooling water intake structure.
The Director's third step would be to review the design
requirements for intake flow and velocity. The proposed velocity
requirement is based on the design through-screen or through-technology
velocity as defined in Sec. 125.83. The maximum design velocity would
always be 0.5 ft/s (except for cooling water intake structures located
50 meters outside the littoral zone in a lake or reservoir). However,
pursuant to proposed section 125.84(f) and (g), the Director might
determine, based on site-specific characteristics, that a more
stringent design velocity (e.g., 0.3 ft/s) is required to minimize
adverse environmental impact. To determine whether the new facility
meets the maximum design velocity requirement, the Director would
review the narrative description of the design, structure, equipment,
and operation used to meet the velocity requirement. The Director would
also review the design calculations that demonstrate that the maximum
design velocity would be met. In reissuing permits, the Director would
review velocity monitoring data to confirm that the facility is
maintaining the initial design velocity calculated at the start of
commercial service.
The proposed flow requirement is based on the water body type and
the physical placement of the cooling water intake structure in
relation to the littoral zone. To determine whether the new facility
meets the proposed flow requirement, the Director would first verify
the new facility's determination of the water body flow for the
respective water body type (e.g., annual mean flow and low flow for
freshwater river or stream). The Director would review the source water
flow data the facility provided in the permit application. The Director
might want to use available U.S. Geological Survey (USGS) data (for
freshwater rivers and streams) to verify the flow data the facility
provided in its permit application. Then the Director would review any
supporting documentation and engineering calculations that demonstrate
that the new facility would meet the proposed flow requirements. To
verify the flow data the new facility provides for an estuary or a
tidal river, the Director would review the facility's calculation of
the tidal excursion. In particular, if the new facility is required to
reduce its intake flow to a level commensurate with that which could be
attained by a closed-cycle recirculating cooling water system, the
Director would review the narrative description or the closed-cycle
recirculating cooling water system design and any engineering
calculations to ensure that the new facility is complying with the
requirement and that the makeup and blowdown flows have been minimized.
The fourth step for the Director would be to review the applicant's
Source Water Baseline Biological Characterization study and to
determine whether additional design and construction technologies are
required. In those instances where additional design and construction
technologies (e.g., fish handling devices) are required, the Director
would review and approve, approve with comment, or disapprove the
applicant's proposed plans to meet these requirements. In some
instances, the applicant might assert that its Source Water Baseline
Biological Characterization demonstrates that no impingement or
entrainment is occurring (e.g., in a shipping canal). The Director
would need to carefully evaluate the data and determine whether these
additional requirements are appropriate for a facility located in a
heavily industrialized water body. During each permit renewal, the
Director would then review supporting data to evaluate whether the
site-specific conditions have changed such that the facility needs to
implement these additional design and construction technologies.
In reviewing the application information, the Director would
determine if the new facility meets the appropriate requirements in
proposed Sec. 125.84(a) through (e) based on its location on and in the
water body, including the flow requirements, intake velocity
requirements, and additional design and construction technology
requirements. The proposed regulations at Sec. 125.84(f) allow
Directors to impose more stringent requirements if it is determined
that they are reasonably necessary to minimize adverse environmental
impacts. However, the Director may require more stringent requirements
under proposed Sec. 125.84(f) only where they are reasonably necessary
as a result of the effects of multiple intakes on a waterbody, seasonal
variations in the aquatic environment affected by the cooling water
intake structure controlled by the permit (such as seasonal migration),
or the presence of regionally important species. The proposed
regulations at Sec. 125.84(g) require Directors to impose more
stringent requirements on cooling water intake structures where they
are reasonably necessary to ensure the
[[Page 49100]]
attainment of water quality standards, including designated uses,
criteria, and antidegredation.
The Agency is aware that the determination of appropriate
requirements would require expertise in aquatic biology. The Agency
encourages consultation with, and input from, EPA, State, or Tribal
staff who have the appropriate expertise. In addition, the Agency
encourages coordination with the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service.
C. What Would I Be Required To Monitor?
The monitoring requirements in today's proposed rule at Sec. 125.87
include biological monitoring of impingement and entrainment,
monitoring of the screen head loss and velocity, and visual
inspections.
Impingement and entrainment monitoring would be used to assess the
presence, abundance, and life stages (eggs, larvae, post larvae,
juveniles, and adults) of aquatic organisms (fish and shellfish)
impinged or entrained during operation of the cooling water intake
structure. The purpose of the site-specific monitoring is to determine
whether the representative species list established in the Source Water
Baseline Biological Characterization remains representative of the
water body with the operation of the cooling water intake structure and
to establish the level of impingement and entrainment. Monitoring would
include sampling of organisms trapped on the outer part of intake
structures or against screening devices and sampling of organisms
entering or passing through the cooling water intake structure and into
the cooling water system. Moreover, because ambient water and
biological conditions might change over time, sustained monitoring is
necessary to identify those species affected post operationally by the
cooling water intake structure.
In proposed Sec. 125.87(b), EPA would require monitoring of the
head loss across the intake screens to obtain a correlation of those
values with the design intake velocity at minimum ambient source water
surface elevation and maximum head for each cooling water intake
structure. The data collected by monitoring this parameter would
provide the Director with additional information after the design and
construction of the cooling water intake structure to demonstrate that
the facility is operating and maintaining the cooling water intake
structure in a manner that the velocity requirement continues to be
met. The Agency considers this the most appropriate parameter to
monitor because although the facility might be designed to meet the
requirement, proper operation and maintenance is necessary to maintain
the open area of the screen and intake structure, ensuring that the
design intake velocity is maintained. Head loss can easily be monitored
by measuring and comparing the height of the water in front of and
behind the screen and/or other technology. Facilities that use devices
other than screens would be required to measure the actual velocity at
the point of entry through the device. Velocity can be measure using
velocity meters placed at the entrance into the device.
The Agency considered requiring annual monitoring of either the
screen-or through-technology velocity or actual approach velocity at
each cooling water intake structure to demonstrate that they are being
operated and maintained properly. EPA seeks comment on these and other
parameters that could be monitored to ensure that the design intake
velocity is not exceeded once the facility is built and operating.
Weekly visual inspections would be required to provide a mechanism
for both the new facility and the Director to ensure that any
technologies that have been implemented to minimize adverse
environmental impact are being maintained and operated in a manner that
ensures that they function as designed. EPA has proposed this
requirement so that facilities could not develop plans and install
technologies only to let them fall into disrepair or to operate them
differently so that adverse environmental impact is not minimized to
the extent expected. The Director would determine the actual scope and
implementation of the visual inspections based on the types of
technologies installed at your facility. For example, they could be as
simple as observing bypass and other fish handling system to ensure
that debris has not clogged the system rendering them inoperable.
The facility would be required to monitor at a frequency specified
in proposed Sec. 125.87. For biological monitoring required in proposed
Sec. 125.87(a), after two years, the Director may approve a request for
less frequent monitoring if the facility desires it and provides data
to support the request. The Director would consider a request for
reduced frequency in the impingement or entrainment monitoring only if
the supporting data show that less frequent monitoring would still
allow for the detection of any seasonal and daily variations in the
species and numbers of individuals that are impinged or entrained. With
each permit renewal, the applicant would continue to monitor individual
aquatic organisms that are impinged or entrained. Based on the
monitoring results, species might need to be added or removed from the
most representative species list. The monitoring results would provide
current, site-specific knowledge of impingement/entrainment effects.
EPA requests comment on all aspects of the proposed monitoring
requirements.
D. How Would Compliance Be Determined?
In today's proposed rule, Sec. 125.89 specifies what the Director
must do to comply with the proposed rule. Consistent with these
provisions, the Director would determine compliance with the
requirements of the proposed rule based on the following:
Data submitted with the NPDES permit application to show
that the facility is in compliance with location, design, construction,
and capacity requirements (Sec. 125.86).
Compliance monitoring data and records, including
impingement and entrainment monitoring, to show that impingement and
entrainment impacts are being minimized (Sec. 125.87(a)).
Through-screen or through-technology velocity monitoring
data and records to show that the facility is being operated and
maintained as designed to continue to meet the velocity requirement
(Sec. 125.87(b)).
Visual inspection to show that technologies installed are
being operated properly and function as they were designed
(Sec. 125.87(c)).
Facilities would be required to keep records and report the above
information in a yearly status report as proposed in Sec. 125.88. EPA
requests comment on this requirement. In addition, Directors may
perform their own compliance inspections as deemed appropriate in
accordance with 40 CFR 122.41.
E. What Are the Respective Federal, State, and Tribal Roles?
Section 316(b) requirements are implemented through NPDES permits.
As discussed in Section II.A., today's proposed regulations would amend
40 CFR 123.25(a)(36) to add a requirements that authorized State
programs have sufficient legal authority to implement today's proposed
requirements (40 CFR part 125, subpart I). Therefore, today's proposed
rule potentially affects authorized State and Tribal NPDES permit
programs. Under 40 CFR 123.62(e), any existing approved section 402
permitting program must be revised to be consistent with new program
[[Page 49101]]
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 proposed rule, the revision must be
made within two years of promulgation. States and Tribes seeking new
EPA authorization to implement the NPDES program must comply with the
requirements when authorization is requested.
In addition to updating their programs to be consistent with
today's rule, States and Tribes authorized to implement the NPDES
program would be required to implement the cooling water intake
structure requirements following promulgation of the final regulations.
The requirements proposed must be implemented upon permit issuance and
reissuance. Duties of an authorized State or Tribe under this
regulation would include:
Verification of a permit applicant's determination of
source water body classification and the flow or volume of certain
water bodies at the point of the intake;
Verification that the intake structure maximum flow rate
is less than the maximum allowable as a proportion of water body flow
for certain water body types;
Verification that a permit applicant's design intake
velocity calculations meet applicable regulatory requirements;
For certain locations in certain water body types,
verification that a permit applicant's intake design and reduction in
capacity are commensurate with a level that can be attained by a
closed-cycle recirculating cooling water system that has minimized
makeup and blowdown flows;
Review and approval or disapproval of a permit applicant's
plan for the required Source Water Baseline Biological Characterization
study;
For certain locations in certain water body types, review
and approval or disapproval of a permit applicant's plan for
installation of additional design and construction technologies to
maximize the survival of impinged fish and minimize entrainment of eggs
and larvae;
Development of draft and final NPDES permit conditions for
the applicant implementing applicable section 316(b) requirements
pursuant to the proposed regulation; and
Ensuring compliance with permit conditions based on
section 316(b) requirements.
Once the proposed requirements are promulgated as final
regulations, EPA will implement them where States or Tribes are not
authorized to implement the NPDES program.
F. Are Permits for New Facilities Subject to Requirements Under Other
Federal Statutes?
EPA's NPDES permitting regulations at 40 CFR 122.49 contain a list
of Federal laws that might apply to federally issued NPDES permits.
These include the Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq.;
the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.;
the Endangered Species Act, 16 U.S.C. 1531 et seq.; the Coastal Zone
Management Act, 16 U.S.C. 1451 et seq.; and the National Environmental
Policy Act, 42 U.S.C. 4321 et seq. See 40 CFR 122.49 for a brief
description of each of those laws. In addition, the provisions of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq., relating to essential fish habitat might be relevant.
Nothing in this proposed rulemaking authorizes activities that are not
in compliance with these or other applicable Federal laws.
X. Cost/Benefit Analysis
A. Cost
Total annualized compliance cost of this proposed rule is estimated
to be $12.1 million.
Facilities not already meeting section 316(b) requirements would
incur several types of costs under the proposed regulation. One-time
costs of the rule would include capital technology costs and costs for
the initial permit application. Recurring costs would include operating
and maintenance costs, permit renewal costs, and costs for monitoring,
record keeping, and reporting.
Facilities generally would have several alternatives for complying
with the proposed rule's requirements. Alternative compliance responses
might include (1) changing the cooling system design so the facility
would no longer be subject to the proposed section 316(b) New Facility
Rule; (2) changing the facility location, and making alterations to
meet requirements based on the new water body type and the distance
from the littoral zone; (3) changing the distance from the littoral
zone and making alterations to meet requirements based on water body
type and the new distance from the littoral zone; and (4) making
alterations to facility plans to meet requirements based on the
baseline water body type and distance from the littoral zone.
The specific compliance response of each facility would be highly
site-specific. For example, it may not be possible for a facility to
locate on a different water body type because a suitable site may not
be available, or a facility may need to address other cost factors that
might support a decision not to relocate despite the opportunity for
lower compliance costs. EPA does not have data on which to estimate the
potential costs of choosing alternative locations. EPA therefore
considered a set of compliance strategies that are most common among
existing facilities with cooling water intake structures. Costed
compliance actions include widening the intake structure or installing
a velocity cap or passive screens to reduce velocity; switching to a
recirculating system to reduce intake flow; and implementing additional
technologies to reduce impingement and entrainment.
EPA estimated the unit costs associated with these potential
regulatory responses. The unit costs were assigned to the 98 new
facilities based on their projected baseline characteristics and their
requirements under the proposed rule. EPA estimated costs incurred by
facilities beginning operations between 2001 and 2020. All capital
costs estimates are amortized over 30 years. Since EPA was only able to
project new facilities for the first 20 years, the annualized costs
based on a 30-year amortization period are somewhat less than they
would have been if EPA were able to project new facilities over a long
time horizon (30 to 40 years). Moreover, since most of the capital
costs for installing closed-cycle recirculating cooling systems are not
projected to be incurred until after 2010, these costs are
significantly discounted in this analysis.
1. Electric Generation Sector
For the period 2001 through 2010, EPA estimates that 13 new
electric generation facilities would be subject to the proposed section
316(b) New Facility Rule.\57\ Seven of these facilities are actual
planned facilities identified from the NEWGen database. For these
facilities, EPA was able to obtain some facility-specific cooling water
intake structure information. The remaining six facilities are
hypothetical facilities for which no information was available. For the
period 2011 through 2020, information on specific, planned facilities
is not available. The Agency
[[Page 49102]]
used Energy Information Administration forecasts for electric
generation capacity for combined-cycle and coal steam electric
facilities. Based on this information, EPA projected that an additional
27 facilities would be subject to this proposed rule, for a total of 40
new electric generation facilities over the 20-year period.
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\57\ See Section VI.B above or Chapter 5 of the Economic and
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule
for assumptions and methodologies used for this estimate.
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For the period 2001 through 2010, EPA estimated facility-level
costs for the seven NEWGen facilities found to be within the scope of
this regulation. EPA compared each facility's baseline characteristics
with the requirements of the rule. If a planned facility already
fulfilled any of the applicable requirements, no cost was included in
the estimates for meeting that requirement. For example, EPA estimates
that 33 of the 40 proposed new generating facilities already plan to
build a cooling tower, so 7 facilities are assumed to incur costs for
complying with the recirculation requirement of the rule. EPA used the
average compliance costs of the seven NEWGen facilities for the six
extrapolated facilities. For the period 2011 through 2020, EPA used
assumptions described in the Economic and Engineering Analyses of the
Proposed Sec. 316(b) New Facility Rule to project which facilities
would be subject to this proposed rule and whether they would be
required to install a cooling tower. For example, based on Energy
Information Administration information on the proportion of new
generating facilities employing cooling towers in recent years, the
Agency estimated that four coal steam electric generating facilities
and three combined-cycle facilities would be required to install
cooling towers.
Total annualized costs for the 40 new electric generators are
estimated to be $6.4 million using a seven percent discount rate and a
30-year analysis period. The lowest annual compliance cost for any
electric generator is estimated to be approximately $73,000 or $97 per
megawatt of generating capacity; the highest cost is estimated to be
$4.1 million or $5,088 per megawatt of generating capacity. Thirty-
three facilities are expected to have relatively low compliance costs
while 7 facilities will have relatively high costs.\58\
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\58\ The higher costs facilities are expected to come on line in
the years 2011, 2014, 2015, 2018, 2019.
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2. Manufacturing Sector
For the period 2001 through 2020, EPA projected that 58 new
manufacturing facilities with costs under the proposed rule would begin
operation during the next 20 years.\59\ All of these facilities are
hypothetical facilities estimated based on industry growth rates and
responses to the Section 316(b) Industry Screener Questionnaire.
Facility-specific operational characteristics of cooling water intake
structures and economic and financial characteristics of the projected
new facilities were not available. Therefore, EPA used information from
screener respondents to project economic and technical characteristics
of the new manufacturing facilities.
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\59\ See Section VI.B above or Chapter 5 of the Economic and
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule
for information on assumptions and methodologies used for this
estimate.
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Based on the projected facility characteristics, EPA estimated
facility-level compliance costs using the same unit costs and
methodology as for new electric generators. Total annualized costs for
the 58 new manufacturing facilities are estimated to be $5.7 million.
The lowest annual compliance cost for any facility was approximately
$73,000; the highest cost was $0.6 million.
Exhibit 3 provides a summary of the compliance costs for the rule.
Details on methods, assumptions and unit costs used to develop
engineering compliance costs for steam electric generating and
manufacturing facilities are presented in Chapter 6 of the Economic and
Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule.
Exhibit 3.--National Pre-Tax Costs of Compliance With the Section 316(b) New Facility Regulation
----------------------------------------------------------------------------------------------------------------
One-time costs Recurring costs
-----------------------------------------------------------------
Industry category (number of Monitoring,
facilities affected) Permit Permit record Total
Capital application O&M renewal keeping &
reporting
----------------------------------------------------------------------------------------------------------------
Total Compliance Costs (present value, in millions $1999)
----------------------------------------------------------------------------------------------------------------
Electric Generators (40).......... $22.5 $1.0 $39.9 $1.5 $15.3 $79.6
Manufacturing Facilities (58)..... 12.2 1.4 34.3 2.1 20.7 70.7
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Total (98).................... 34.7 2.4 73.6 3.6 36.0 150.9
----------------------------------------------------------------------------------------------------------------
Annualized Compliance Costs (in $1999)
----------------------------------------------------------------------------------------------------------------
Electric Generators (40).......... 1,809,266 84,401 3,169,779 123,526 1,239,345 6,426,317
Manufacturing Facilities (58)..... 984,524 111,383 2,761,176 172,307 1,671,369 5,700,759
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Total (98).................... 2,793,790 195,784 5,930,955 295,833 2,910,714 12,127,076
----------------------------------------------------------------------------------------------------------------
3. Cost Impacts
Exhibit 4 shows that the estimated compliance costs would represent
a small portion of the estimated revenues for most of the facilities.
Costs as a percentage of baseline revenues would be less than one
percent for all the facilities with the exception of eight
facilities.\60\
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\60\ One steel works facility and one industrial gases facility
would have annualized costs equal to 8.8 and 2.4 percent of
revenues, respectively. Three electric generators would have
annualized costs equal to 4.2% of revenues and another 3 would have
annualized costs equal to 1.0% of revenues.
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In addition to low impacts at the facility level, impacts at the
industry level are expected to be very limited because the projected
number and total size of the new facilities that would be within the
scope of the proposed rule are generally small compared to the industry
as a whole. EPA therefore does not expect the proposed rule to cause
significant changes in industry productivity, competition, prices,
output, foreign trade, or employment.
In summation, the proposed rule is expected to be economically
practicable
[[Page 49103]]
at both the facility and national level for all sectors. Only a small
percent of the total number of facilities in each of the manufacturing
sectors would be affected by the proposed rule. EPA, therefore,
concludes that this rule would not result in a significant impact on
industries or the economy.
Exhibit 4.--Pre-Tax Compliance Costs and Economic Impacts By Sector
----------------------------------------------------------------------------------------------------------------
Total Annualized compliance
Number of annualized cost as a percent of
projected compliance facility revenues
Sector in-scope costs -------------------------
facilities ($mill
1999) Lowest Highest
----------------------------------------------------------------------------------------------------------------
SIC 49 Steam electric generating............................ 40 6.4 0.07 4.2
SIC 26 Pulp & paper......................................... 0 0 NA NA
SIC 28 Chemicals............................................ 48 4.5 0.01 2.4
SIC 29 Petroleum............................................ 0 0 NA NA
SIC 331 Iron & steel........................................ 8 1.1 0.01 8.8
SIC 333/335 Aluminum........................................ 2 0.07 0.02 0.02
---------------------------------------------------
Total................................................... 98 12.1
----------------------------------------------------------------------------------------------------------------
4. Cost Impacts of Other Alternatives
In addition to today's proposed rule, EPA costed the impacts of two
alternative regulatory options. The first alternative option that EPA
considered is to apply the BTA requirements proposed for estuaries and
tidal rivers to all facilities, regardless of location. Under this
option, the definition and number of new facilities subject to the rule
would not change, but some facilities would incur more stringent
compliance requirements. EPA estimates the total annualized compliance
costs for this alternative would be $16.4 million. The second
alternative option considered by EPA would impose more stringent
compliance requirements on the electric generating segment of the
industry. It is based in whole or in part on a zero intake-flow (or
nearly zero, extremely low-flow) requirement commensurate with levels
achievable through the use of dry cooling systems. New manufacturing
facilities would not be subject to these stricter requirements but
would have to comply with the standards of the proposed rule. EPA
estimated costs for this alternative assuming that the dry cooling
standard would apply to electric generators on all waters of the U.S.
The costs of this option is estimated to be $193 million per year.
Both alternative regulatory options considered by EPA would have
higher total costs than this proposed rule. A regulatory framework
based on dry cooling towers for some or all electric generators is the
most expensive option. Compared to the proposed rule, this option would
impose an additional cost of $181 million, or $20,720 per megawatt of
generating capacity, on the electric generating sector. As with the
proposed option, the majority of capital costs for these options are
projected to occur after 2010, and so are significantly discounted in
the analysis.
B. Discussion of Cooling Water Intake Structure Impacts and Potential
Benefits
To provide an indication of the potential benefits of adopting BTA
for cooling water intake structures, this section presents information
from existing sources on impingement and entrainment losses associated
with cooling water intake structures, and the economic benefits
associated with reducing these losses. Examples are drawn from existing
sources because the information needed to quantify and value potential
reductions in losses at new facilities is not yet available. In most
cases, there is only general information about facility locations, and
details of intake characteristics and the ecology of the surrounding
water body are unavailable. Such information is critical because
studies at existing facilities demonstrate that benefits are highly
variable across facilities and locations. Even similar facilities on
the same water body can have very different impacts depending on the
aquatic ecosystem in the vicinity of the facility, and intake-specific
characteristics such as location, design, construction, and capacity.
In general, the probability of impingement and entrainment depends
on intake and species characteristics that influence the intensity,
time, and spatial extent of interactions of aquatic organisms with a
facility's cooling water intake structure and the physical, chemical,
and biological characteristics of the source water body. Closed-cycle
cooling systems (which are one part of the basis for BTA for all but
the least sensitive areas) withdraw water from a natural water body,
circulate the water through the condensers, and then send it to a
cooling tower or cooling pond before recirculating it back through the
condensers. Because cooling water is recirculated, closed-cycle systems
generally reduce the water flow from 72 percent to 98 percent, thereby
using only 2 percent to 28 percent of the water used by once-through
systems. It is generally assumed that this would result in a comparable
reduction in impingement and entrainment.
Fish species with free-floating, early life stages are those most
susceptible to CWIS impacts. Such planktonic organisms lack the
swimming ability to avoid being drawn into intake flows. Species that
spawn in nearshore areas, have planktonic eggs and larvae, and are
small as adults experience even greater impacts because both new
recruits and reproducing adults are affected (e.g., bay anchovy in
estuaries and oceans). In general, higher impingement and entrainment
are observed in estuaries and near coastal waters due to the presence
of spawning and nursery areas. Additionally, tidal currents in
estuaries can carry organisms past intakes multiple times, increasing
their probability of impingement and entrainment. These observations
would tend to support EPA's decision to establish requirements for
minimizing adverse environmental impact according to water body type
and the placement of the intake structure in relation to biologically
productive zones.
The proposed regulatory framework also recognizes that for any
given species and cooling water intake structure location, the
proportion of the source water flow supplied to the cooling water
intake structure is a major factor affecting the potential for
impingement and entrainment. In general, if the quantity of water
withdrawn is large relative to the flow of the source water body, water
[[Page 49104]]
withdrawal would tend to concentrate organisms and increase numbers
impinged and entrained. Thus, the proposed flow requirements seek to
minimize impingement and entrainment by limiting the proportion of the
water body flow that can be withdrawn.
The following five examples from studies at existing facilities
offer some indication of the relative magnitude of monetary damages
associated with cooling water intake structures at some existing
facilities. These examples exhibit the magnitude of impingement and
entrainment, on a per facility basis, that could be significantly
reduced in the future for similar steam electric facilities under this
proposed rule. In the following discussion, the potential benefits of
lowering intake flows to a level commensurate with closed-cycle
recirculating cooling water system (for the projected 25 percent of
facilities not already planning to use such systems) is illustrated by
comparisons of once-through and closed-cycle cooling systems (e.g., the
Brayton Point and Hudson River facilities). The potential benefits of
additional requirements defined by regional permit directors is
demonstrated by operational changes implemented to reduce impingement
and entrainment (e.g., the Pittsburg and Contra Costa facilities). The
Ludington example demonstrates how impingement and entrainment losses
of forage species can lead to reductions in economically valuable
species. Finally, the potential benefits of implementing additional
design and construction technologies to increase survival of organisms
impinged or entrained is illustrated by the application of modified
intake screens and fish return systems (e.g., the Salem Nuclear
Generating Station).
The first example of the potential benefits of minimizing intake
flow and associated impingement and entrainment is provided by data for
the Brayton Point facility, located on Mt. Hope Bay in
Massachusetts.61 62 In the mid-1980s, the operation of Unit
4 was changed from closed-cycle to once-through cooling. Although
conversion to once-through cooling increased intake flow by 45%, the
facility requested the change because of electrical problems associated
with salt contamination from Unit 4's salt water spray cooling system.
The lower losses expected under closed-cycle operation can be estimated
by comparing losses before and after this modification. On this basis,
EPA estimates that the average annual reduction in entrainment losses
of adult-equivalents of catchable fish resulting from closed cycle
operation of a single unit at Brayton Point (reducing the flow of that
unit from 1,045 MGD to 703 MGD) ranges from 207,254 Atlantic menhaden
(Brevoortia tyrannus) and 155,139 winter flounder (Pleuronectes
americanus) to 20,198 tautog (Tautoga onitis) and 7,250 weakfish
(Cynoscion regalis) per year. Assuming a proportional change in
harvest, the lower losses associated with a closed cycle system may be
expected to result in an increase of 330,000 to 2 million pounds per
year in commercial landings and 42,000 to 128,000 pounds per year in
recreational landings.
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\61\ New England Power Company and Marine Research, Inc., Final
Environmental Impact Report and Section 316(a) and 316(b)
Demonstrations Made in Connection with the Proposed Conversion of
Generating Unit No. 4 from Closed-Cycle Cooling to Once-Through
Cooling. 1981.
\62\ Gibson, M. Comparison of Trends in the Finfish Assemblages
of Mt. Hope Bay and Narragansett Bay in Relation to Operations of
the New England Power Brayton Point Station. Rhode Island Division
Fish and Wildlife, Marine Fisheries Office, June 1995 and revised
August 1996.
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The second example of the potential benefits of low intake flow is
provided by an analysis of impingement and entrainment losses at five
Hudson River power plants. Estimated fishery losses under once-through
compared to closed-cycle cooling indicate that an average reduction in
intake flow of about 95 percent at the three facilities responsible for
the greatest impacts would result in a 30 percent to 80 percent
reduction in fish losses depending on the species involved.\63\ An
economic analysis estimated monetary damages under once-through cooling
based on the assumption that annual percent reductions in year classes
of fish result in proportional reductions in fish stocks and harvest
rates.\64\ A low estimate of damages was based on losses at all five
facilities, and a high estimate was based on losses at the three
facilities that account for most of the impacts. Damage estimates under
once-through cooling ranged from about $1.3 million to $6.1 million
annually in 1999 dollars. Over the next 20 years, EPA projects that
seven out of 40 new power plants would be built without recirculating
systems in the absence of this rule. Most of the costs projected for
the proposed rule are associated with installing recirculating systems
as a result of this proposed rule.
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\63\ Boreman, J. and C.P. Goodyear. ``Estimates of entrainment
mortality for striped bass and other fish species inhabiting the
Hudson River Estuary.'' American Fisheries Society Monograph 4:152-
160. 1988.
\64\ Rowe, R.D., C.M. Lang, L.G. Chestnut, D.A. Latimer, D.A.
Rae, S.M. Bernow, and D.E. White. The New York Electricity
Externality Study, Volume 1. Empire State Electric Energy Research
Corporation. 1995.
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The third example demonstrates how impingement and entrainment
losses of forage species can lead to reductions in economically valued
species. A random utility model (RUM) was used to estimate fishery
impacts of impingement and entrainment by the Ludington Pumped-Storage
plant on Lake Michigan.65 66 This method estimates changes
in demand as a function of changes in catch rates. The Ludington
facility is responsible for the loss of about 1 percent to 3 percent of
the total Lake Michigan production of alewife, a forage species that
supports valuable trout and salmon fisheries. It was estimated that
losses of alewife result in a loss of nearly 6 percent of the angler
catch of trout and salmon each year. On the basis of RUM analysis, the
study estimated that if Ludington operations ceased, catch rates of
trout and salmon species would increase by 3.3 to 13.7 percent
annually, amounting to an estimated recreational angling benefit of
$0.95 million per year (in 1999 dollars) for these species alone.
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\65\ Jones, C.A., and Y.D. Sung. Valuation of Environmental
Quality at Michigan Recreational Fishing Sites: Methodological
Issues and Policy Applications. Prepared under EPA Contract No. CR-
816247 for the U.S. EPA, Washington, DC. 1993.
\66\ Pumped storage facilities do not use cooling water and are
therefore would not subject to this proposed rule. However, the
concept of economic valuation of losses in forage species is
transferable to other types of stressors, including cooling water
intake structures.
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The fourth example indicates the potential benefits of operational
BTA that might be required by regional permit Directors. Two plants in
the San Francisco Bay/Delta, Pittsburg and Contra Costa in California
have made changes to their intake operations to reduce impingement and
entrainment of striped bass (Morone saxatilis). These operational
changes have also reduced incidental take of several threatened and
endangered fish species, including the delta smelt (Hypomesus
transpacificus) and several runs of chinook salmon (Oncorhynchus
tshawytscha) and steelhead trout (Oncorhynchus mykiss). According to
technical reports by the facilities, operational BTA reduced striped
bass losses by 78 percent to 94 percent, representing an increase in
striped bass recreational landings of about 15,000 fish each year. A
local study estimated that the consumer surplus of an additional
striped bass caught by a recreational angler is $8.87 to $13.77.\67\
This implies a benefit to the recreational fishery, from reduced
impingement and entrainment of striped
[[Page 49105]]
bass alone, in the range of $131,000 to $204,000 annually. The monetary
benefit of reduced impingement and entrainment of threatened and
endangered species might be substantially greater.
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\67\ Huppert D.H. ``Measuring the value of fish to anglers:
application to central California anadromous species.'' Marine
Resource Economics 6:89-107. 1989.
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The final example indicates the benefits of technologies that can
be applied to maximize survival. At the Salem Nuclear Generating
Station in Delaware Bay, the facility's original intake screens were
replaced with modified screens and improved fish return baskets that
reduce impingement stress and increase survival of impinged fish.\68\
The changes resulted in an estimated 51 percent reduction in losses of
weakfish. Assuming similar reductions in losses of other recreational
and commercial species, this represents an increase in recreational
landings of 13,000 to 65,000 fish per year and an increase in angler
consumer surplus of as much as $269,000 annually in 1999 dollars. The
estimated increase in commercial landings of 700 to 28,000 pounds per
year represents an increase in producer surplus of up to $25,000
annually. Assuming that nonuse benefits are at least 50 percent of
recreational use benefits, nonuse benefits associated with the screens
might be expected to amount to up to $134,000 per year.
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\68\ Ronafalvy, J.P., R.R. Cheesman, and W.M. Matejek.
``Circulating water traveling screen modifications to improve
impinged fish survival and debris handling at Salem Generating
Station.'' Presentation at Power Generation Impacts on Aquatic
Resources Conference, Atlanta Georgia, April 12-15, 1999.
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A more detailed discussion of cooling water intake structure
impacts and potential benefits can be found Chapter 11 of the Economic
and Engineering Analyses of the Proposed Sec. 316(b) New Facility Rule.
The Agency recognizes that limited data, if any, are available on
impingement and entrainment rates at facilities with intake flows at or
near the flow threshold proposed today or the alternative flow
thresholds discussed in Section V.D. above. The Agency specifically
invites commenters to provide any data they may have on impingement
and/or entrainment rates at facilities with total intake flows at or
below 30 MGD.
XI. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has
prepared an Information Collection Request (ICR) document (ICR No.
1973.01) and you may obtain a copy from Sandy Farmer by mail at
Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20007, by e-mail at
farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. You also
can download a copy off the Internet at http://www.epa.gov/icr.
The total burden of the information collection requirements
associated with today's rule is estimated at 46,849 hours. The
corresponding cost for costs other than labor (labor costs are included
in the total cost of the rule discussed in section X of this preamble)
is estimated at $1.03 million for 22 facilities and 44 States and
Territories for the first three years after promulgation of the rule.
Non-labor costs, include activities such as laboratory services,
photocopying, and the purchase of supplies. The burden and costs are
for the information collection, reporting, and record keeping
requirements for the three-year period beginning with the assumed
effective date of today's rule. Additional information collection
requirements will occur after this initial three-year period and will
be counted in a subsequent information collection request. EPA does not
consider the specific data that would be collected under this proposed
rule to be confidential business information. However, if a respondent
does consider this information to be confidential, the respondent may
request that such information be treated as confidential. All
confidential data will be handled in accordance with 40 CFR 122.7, 40
CFR part 2, and EPA's Security Manual Part III, Chapter 9, dated August
9, 1976.
Compliance with the applicable information collection requirements
imposed under this proposed rule (see Secs. 125.86,125.87, and 125.88)
is mandatory. Before new facilities can begin operation, they would be
required first to perform several data-gathering activities as part of
the permit application process. Today's proposal would require several
distinct types of information collection as part of the NPDES
application. In general, the information would be used to identify
which of the requirements in today's proposed rule apply to the new
facility, how the new facility would meet those requirements, and
whether the new facility's cooling water intake structure reflects the
best technology available for minimizing adverse environmental impact.
Specific data requirements proposed are the following:
Source water data for evaluation of potential impacts to
the water body in which the intake structure is placed.
Intake structure data, consisting of intake structure
design and facility water balance diagram, to evaluate the potential
for impingement and entrainment of aquatic organisms.
Baseline ambient biological data, in the form of a Source
Water Baseline Biological Characterization study, for evaluating
potential impacts from the cooling water intake structure prior to the
start of operation.
Information on additional design and construction
technologies implemented to ensure compliance with the applicable
requirements set forth in today's proposed rule.
In addition to the information requirements of the NPDES permit
application, NPDES permits normally specify monitoring and reporting
requirements to be met by the permitted entity. New facilities that
fall within the scope of this rule would be required to perform
biological monitoring of impingement and entrainment, monitoring of the
screen or through-technology velocity, and visual inspections of the
cooling water intake structure and any additional technologies.
Additional ambient water quality monitoring may also be required of
facilities depending on the specifications of their permit. The
facility would be expected to analyze the results its monitoring
efforts and then provide these results in an annual status report to
the permitting authority. Finally, facilities would be required to
maintain records of all submitted documents, supporting materials, and
monitoring results for at least three years (the director may require
that records be kept for a longer period to coincide with the life of
the NPDES permit) .
All the impacted facilities would have to carry out the specific
activities necessary to fulfill the general information requirements.
The estimated burden to comply with these requirements is associated
with describing and drawing the physical configurations of the source
water body where the cooling water intake structures are located and
documenting the delineation of the littoral zone, submerged vegetation,
and substrate characteristics of the water body in relation to each
cooling water intake structure. The activities costed out also include
sampling, analyzing, and reporting the results in a Source Water
Baseline Biological Characterization Study before the operation of the
cooling water intake structures and developing a water balance diagram
that
[[Page 49106]]
can be used to identify the proportion of intake water used for
cooling, make-up, and process water. Some of the facilities would need
to perform additional activities in relation to velocity and flow
reduction requirements. The estimates also incorporate the cost of
preparing a narrative description of the design, structure, equipment,
and operation to meet the velocity, flow, and flow reduction
requirements.
In addition to the activities mentioned above, some facilities
would need to prepare and submit a plan describing the design and
characteristics of additional technologies to be installed to maximize
the survival of aquatic organisms, and to minimize the impingement and
entrainment of organisms. The estimates for some facilities also
incorporate the cost of the sampling, analyzing, and reporting of the
impinged and entrained organisms during a biological cycle, and
velocity monitoring and biweekly inspections of the operation of the
installed technologies.
Exhibit 5 presents a summary of the maximum burden estimates for a
facility to prepare a permit application, along with the monitoring and
reporting of cooling water intake structures operations.
Exhibit 5.--Maximum Burden and Costs per Facility for NPDES Permit Application and Monitoring and Reporting
Activities
----------------------------------------------------------------------------------------------------------------
Other direct
Activities Burden (hr) Labor cost costs a
----------------------------------------------------------------------------------------------------------------
Start-up activities............................................. 43 $1,330 $50
General information activities.................................. 252 6,512 500
Source water baseline biological characterization activities b.. 404 11,655 1,250
Flow standard activities........................................ 104 2,495 100
Velocity standard activities.................................... 138 3,690 1,000
Flow reduction commensurate with closed-cycle recirculating..... 98 2,478 400
Additional design and construction technology implementation 85 2,372 50
plan...........................................................
-----------------------------------------------
Subtotal.................................................... 1,124 30,532 3,350
----------------------------------------------------------------------------------------------------------------
Maximum Burden and Costs per Facility for Annual Monitoring and Reporting Activities
----------------------------------------------------------------------------------------------------------------
Biological monitoring (impingement)............................. 238 $6,736 $2,000
Biological monitoring (entrainment)............................. 530 14,675 4,000
Velocity monitoring............................................. 163 4,169 100
Visual inspection............................................... 253 6,831 100
Yearly status report activities................................. 340 10,634 750
-----------------------------------------------
Subtotal.................................................... 1,524 43,045 6,950
----------------------------------------------------------------------------------------------------------------
a Cost of supplies, filing cabinets, photocopying, boat renting, etc.
b The Source Water Baseline Biological Characterization Study also has contracted service costs associated with
it.
The proposed changes to the NPDES permit process would require
States to devote time and resources to reviewing and responding to the
NPDES permit applications, implementation plans, and annual status
reports submitted to them. EPA assumed that all 43 States and one
territory with NPDES permitting authority will undergo start-up
activities in preparation for administering the provisions of the New
Facility Rule. As part of these start-up activities States are expected
to train junior technical staff on how to review materials submitted by
facilities, and then use these materials to determine the specific
conditions of each facility's NPDES permit with regard to the
facility's cooling water intake structure.
Each State's actual burden associated with reviewing submitted
materials, writing permits, and tracking compliance depends on the
number of new in-scope facilities that will be built in the State
during the ICR approval period. EPA expects that State senior
technical, junior technical, and clerical staff will spend time
gathering, preparing, and submitting the various documents. EPA's
burden estimates reflect the general staffing and level of expertise
that is typical in States that administer the NPDES permitting program.
EPA considered the time and qualifications necessary to complete
various tasks such as reviewing submitted documents and supporting
materials, verifying data sources, planning responses, determining
specific permit requirements, writing the actual permit, and conferring
with facilities and the interested public. Exhibit 6 provides a summary
of the burden estimates for States performing various activities
associated with the proposed rule.
Exhibit 6.--Estimating State Burden and Costs for Activities
------------------------------------------------------------------------
Burden Labor ODC
Activities (hrs) cost ($)
------------------------------------------------------------------------
State start-up activities (per State)........ 100 $3,004 $50
State permit issuance activities (per 116 3,182 300
facility)...................................
Annual State activities (per facility)....... 50 1,419 50
------------------------------------------------------------------------
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 procedures to
comply with any previously applicable instructions and requirements;
train personnel to be able
[[Page 49107]]
to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information, unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
EPA requests comments on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Ave., NW.; Washington, DC 20460; and
to the Office of Information and Regulatory Affairs; Office of
Management and Budget; 725 17th Street; NW., Washington, DC 20503,
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in
any correspondence. Because OMB is required to make a decision
concerning the ICR between 30 and 60 days after August 10, 2000, a
comment is most likely to have its full effect if OMB receives it by
September 11, 2000. The final rule will respond to any OMB or public
comments on the information collection requirements contained in this
proposal.
B. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
might result in expenditures to State, local, and Tribal governments,
in the aggregate, or to the private sector, of $100 million or more in
any one year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective, or least burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that might significantly or
uniquely affect small governments, including Tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant intergovernmental mandates, and informing,
educating, and advising small governments on compliance with regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that might result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. Total annualized compliance and implementation
costs are estimated to be $12.2 million. Of the total, the private
sector accounts for $11.9 million and the government sector (includes
direct compliance costs for facilities owned by government entities)
accounts for $0.26 million. EPA calculated annualized costs by
estimating initial and annual expenditures by facilities and regulatory
authorities over the 30-year period (2001-2031), calculating the
present value of that stream of expenditures using a 7 percent discount
rate. EPA estimates that the highest undiscounted costs incurred by the
private sector and government sector in any one year are approximately
$36.2 million and $0.29 million, respectively. Thus, today`s rule is
not subject to the requirements of sections 202 and 205 of UMRA.
This rule is not expected to impact small governments. A
municipality that owns or operates a electric generation facility is
the primary category of small government operations that might be
affected by a rule, regulating cooling water intake structures.
Existing data indicates that no new municipal electric generation
facilities are going to be constructed in the next ten years. In
addition, to minimize cost, this proposed rule excludes facilities that
take in less than two (2) million gallons per day. Details and
methodologies used for these estimations are included in the Economic
and Engineering Analysis of the Proposed Section 316(b) New Facility
Rule, which is in the docket for today`s proposal.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The proposal, if promulgated, would not establish
requirements that would affect small governments. Thus, today`s
proposed rule is not subject to the requirements of section 203 of
UMRA.
C. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
Today`s proposed rule is intended to minimize the adverse
environmental impact from cooling water intake structures and regulates
industries that use cooling water withdrawn directly from waters of the
U.S. The primary impact would be on steam electric generating
facilities (SIC 4911); however, a number of other industries might also
be regulated, including but not limited to paper and allied products
(primary SIC 26), chemical and allied products (primary SIC 28),
petroleum and coal products (primary SIC 29), and primary metals
(primary SIC 33).
For the purposes of assessing the impacts of today`s rule on small
entities, small entity is defined as: (1) A small business according to
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 not-for-profit enterprise which is independently owned and
operated and is not dominant in its field. This proposed rule is
expected to regulate only a small absolute number of facilities owned
by small entities, that represent a very small percentage of all
facilities owned by small entities in their respective industries. EPA
has estimated that 20 facilities owned by small entities would be
regulated by this proposed rule. Of the 20 facilities owned by small
entities, 14 are projected to be steam electric generating facilities
and 6 to be manufacturing facilities. EPA does not anticipate that
today`s proposed rule would regulate any small governments or nonprofit
entities.
[[Page 49108]]
After considering the economic impacts of today`s proposed rule on
small entities, the Agency certifies that this action will not have a
significant economic impact on a substantial number of small entities
for reasons explained below.
1. Electric Generation Sector
EPA has described the process by which prospective new steam
electricity generating facilities were identified and how EPA
determined whether such facilities are subject to today`s proposed rule
elsewhere in this preamble and in Chapter 5 of the Economic and
Engineering Analysis of the Proposed Sec. 316(b) New Facility Rule. As
described in Chapter 8 of the economic and engineering support
document, EPA then identified those facilities subject to the rule
whose parent firm or government owner would qualify as a small entity
pursuant to the SBA size standard for electrical utilities. The Small
Business Administration defines a small steam electric generator as a
firm whose facilities generated 4 million megawatt-hours output or less
in the proceeding year. From that analysis, EPA has determined that 14
facilities owned by small businesses within the steam electric
generating industry are likely to be regulated by today`s proposed
rule. The only government-owned facility that met the SBA criteria was
owned by a State and States are not considered small governments.
The estimated annualized compliance costs that facilities owned by
small entities would likely incur represent between 0.07 to 0.15
percent of estimated facility annual sales revenue.\69\ In addition,
EPA was able to assess impacts based on the ratio of initial costs to
plant construction costs. The results of both screening analyses
indicated very low impacts at the facility level. Consequently, the
costs to the parent small entity would be even lower.
---------------------------------------------------------------------------
\69\ In addition to 7 known planned facilities, EPA estimated
that additional hypothetical facilities potentially regulated by
this proposed rule will begin operating during the next 20 years.
Based on information on the known facilities and expected
characteristics of the projected facilities, EPA estimates that
impacts on other facilities owned by small firms would also be low.
---------------------------------------------------------------------------
The absolute number of small entities potentially subject to this
rule is low. This is not unexpected since the total number of
facilities subject to this rule is also low. This is the case, even
though the electric power industry is currently experiencing a rapid
expansion and transition due to deregulation and new Clean Air Act
requirements for emissions controls, and a large number of generating
plants are under construction or planned for the early years after
promulgation of the proposed rule. First, there is a trend toward
construction of combined-cycle technologies using natural gas, which
use substantially less cooling water than other technologies. Second,
there has been a decline in the use of surface water as the source of
cooling water. The NEWGen sample data shows a trend away from the use
of surface cooling water. It is indicated that 80 percent of the
sampled facilities use alternative sources of cooling water (e.g., grey
water, ground water, and municipal water). EPA believes this trend
reflects the increased competition for water, an increasing awareness
of the need for water conservation, and increased local opposition to
the use of surface water for power generation. Taken together, the
trend toward combined-cycle generating technologies, which have small
cooling water requirements per unit of output, and the trend away from
the use of surface cooling water result in a low projected number of
regulated facilities, despite the expected expansion in new generating
capacity.
2. Manufacturing Sector
Chapter 5 of the Economic and Engineering Analysis of the Proposed
Sec. 316 (b) New Facility Rule shows that 58 new manufacturing
facilities are expected to incur compliance costs under the proposed
section 316(b) New Facility Rule. Since EPA`s estimate of new
manufacturing facilities is based on industry growth forecasts and not
on specific planned facilities, actual parent firm information was not
available. EPA therefore developed profiles of representative
facilities based on the characteristics of existing facilities
identified in the screener survey EPA used to identify an appropriate
sample of existing facilities for detailed analysis as part of
Sec. 316(b) rulemaking for existing facilities. \70\
---------------------------------------------------------------------------
\70\ For each SIC code that included one projected new facility,
EPA sorted screener respondents in that SIC code by the number of
employees at a facility. EPA selected the facility with the median
employment value as the representative facility and used that
facility's reported firm characteristics (employment and sales
revenues) for this small entity analysis. Data from the Dun &
Bradstreet database were used where information on the firm was not
available in the screener. In cases where more than one new facility
is projected in an SIC code, EPA again sorted the screener
respondents by number of employees at a facility. EPA then divided
the screener respondents into as many subcategories as the projected
number of new facilities in the SIC code. Finally, EPA used
employment and sales revenue data from the median employment
facility in each subcategory to represent the projected new facility
for this small entity analysis. Data from the Dun & Bradstreet
database were used where information on the firm was not available
in the screener survey. The document, Economic and Engineering
Analysis of the Proposed Sec. 316(b) New Facility Rule, provides
more detailed information on how facility and firm characteristics
for the 58 new manufacturing facilities were determined.
---------------------------------------------------------------------------
On the basis of the comparison of each representative facility`s
parent firm employment with the SBA small entity size standard for the
firm`s SIC code (the small entity size standards are expressed in terms
of employees (500 to 1000 employees)), only 6 of the 58 new
manufacturing facilities are projected to be owned by a small entity.
Four of the 6 facilities are in the chemicals sector and 2 are in the
metals sector. EPA used annualized costs as a percentage of annual
sales revenue to assess impacts for manufacturing firms. Again, the
test was applied at the facility rather than the firm level, which
provides a conservative estimate of the impacts because the ratio of
costs to revenues generally would be lower at the firm level than at
the individual facility level. Once again, the impact analysis showed a
negligible impact on small entities, because the effect on facility
sales revenue was so low (0.02 to 0.31 percent). Although EPA was able
to assess impacts for only a limited number of plants owned by small
entities, the Agency believes that the results for these plants would
be representative of other plants owned by small entities.
EPA has conducted extensive outreach to industry associations and
organizations representing small government jurisdictions to identify
small-entity manufacturing facilities. Based on the outreach effort and
a review of the relevant industry trade literature, EPA concludes that
although the exact number of facilities owned by small entities that
would be subject to the proposed rule is difficult to quantify, it is
evident that for the foreseeable future few, if any, small entities
would be affected. EPA estimates that only 1.9 percent of all future
facilities owned by small entities will use cooling water at levels
that would bring them within the scope of this regulation.
The small number of small entities subject to this rule in the
manufacturing sector is not surprising because the facilities likely to
be subject to the proposed rule are large industrial facilities that
are not generally owned by small entities. There are multiple reasons
for the limited projected number of in-scope new facilities owned by
small entities. The major factors responsible, depending on which
[[Page 49109]]
industry sector is considered, include industry downsizing; expansion
of capacity at existing facilities as a means of meeting increased
demand; mergers and acquisitions that reduce the overall number of
firms; and addition of a significant number of new facilities in at
least one industry sector as part of a recently completed expansion
cycle so that additional new facilities are not expected for the
foreseeable future. The segments of the industries that are the primary
users of cooling water are mostly large, capital intensive enterprises
with few, if any, small businesses within their ranks. Moreover, these
industries are particularly subject to the impacts of globalization,
including competitive pressures from low-cost foreign producers,
providing a strong incentive for domestic industry to consolidate to
secure the market share and realize production efficiencies. In
addition, startup or expansion of the type of industrial facilities
subject to today's proposed rule requires significant capital, which
small businesses cannot easily secure. The nature of manufacturing
enterprises using cooling water at the levels addressed by today's
proposed rule is generally inconsistent with small business activity.
Finally, a minimum flow cutoff of 2 MGD is likely to exempt a
significant number of small facilities from the requirements of the
proposed rule. Therefore, EPA believes it is reasonable to conclude
that in the foreseeable future there will be a negligible increase in
the number of in-scope small facilities in these manufacturing
industries.
Exhibit 7 summarizes the results of Regulatory Flexibility Act/
Small Business Regulatory Enforcement Fairness Act analysis. From the
small absolute number of facilities owned by small entities that would
be affected by the proposed rule, and the very low impacts at the
facility level, EPA concludes that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
Exhibit 7.--Summary of RFA/SBREFA Analysis
----------------------------------------------------------------------------------------------------------------
Number of
facilities
Type of facility owned by Annual compliance costs/ Initial compliance cost/
small annual sales revenue construction cost
entities
----------------------------------------------------------------------------------------------------------------
Steam electric generating facilities.... 14 0.07% to 0.15%............. 0.01% to 0.01%.
Manufacturing facilities................ 6 0.02% to 0.31%............. Data not available.
-----------------------------------------------------------------------
Total............................... 20 0.02% to 0.31%............. 0.01% to 0.01%.
----------------------------------------------------------------------------------------------------------------
One reason why this proposed rule would not have a significant
economic impact on a substantial number of small entities is that EPA
has established a flow level of greater than 2 MGD as the level below
which facilities would be exempt from the requirements of the proposed
rule. This minimum flow level exempts many facilities using small
amounts of water, including facilities owned by small entities, while
covering approximately 90% of the total cooling water withdrawn from
the waters of the U.S. EPA also conducted extensive outreach to
industry associations and organizations that represent small entities,
to determine how this rule would affect their small entity
constituents.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcomes comments on issues related
to such impacts.
D. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this proposed 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.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the
[[Page 49110]]
process of developing the proposed regulation.
This proposed 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 proposed rule would
result in minimal administrative costs on States that have an
authorized NPDES program. EPA expects an annual burden of 2,339 hours
with an annual cost of $3,200 (non-labor costs) for States to
collectively administer this proposed rule. Also, based on meetings and
subsequent discussions with local government representatives from
municipal utilities, EPA believes that the proposed new facility rule
may affect, at most, only two large municipalities that own steam
electric generating facilities. The annual impacts on these facilities
is not expected to exceed 1,304 burden hours and $36,106 (non-labor
costs) per facility.
The proposed national cooling water intake structure requirements
would be implemented through permits issued under the NPDES program.
Forty-three States and the Virgin Islands are currently authorized
pursuant to section 402(b) of the CWA to implement the NPDES program.
In States not authorized to implement the NPDES program, EPA issues
NPDES permits. Under the CWA, States are not required to become
authorized to administer the NPDES program. Rather, such authorization
is available to States if they operate their programs in a manner
consistent with section 402(b) and applicable regulations. Generally,
these provisions require that State NPDES programs include requirements
that are as stringent as Federal program requirements. States retain
the ability to implement requirements that are broader in scope or more
stringent than Federal requirements. (See section 510 of the CWA.)
Today's proposed 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 proposed rule establishes
national requirements for new facilities with cooling water intake
structures. NPDES-authorized States that currently do not comply with
the final regulations based on today's proposal might need to amend
their regulations or statutes to ensure that their NPDES programs are
consistent with Federal section 316(b) requirements. See 40 CFR
123.62(e). For purposes of this proposed rule, the relationship and
distribution of power and responsibilities between the Federal
government and the States and local governments are established under
the CWA (e.g., sections 402(b) and 510); nothing in this proposed rule
would alter that. Thus, the requirements of section 6 of the Executive
Order do not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with State governments and representatives of
local governments in developing the proposed rule. During the
development of the proposed Section 316(b) rule for new facilities, EPA
conducted several outreach activities through which State and local
officials were informed about this proposal and they provided
information and comments to the Agency. The outreach activities were
intended to provide EPA with feedback on issues such as adverse
environmental impact, BTA, and the potential cost associated with
various regulatory alternatives.
EPA held two public meetings in the summer of 1998 to discuss
issues related to the section 316(b) rulemaking effort. Representatives
from New York and Maryland attended the meetings and provided input to
the Agency. The 316(b) workgroup also contacted Pennsylvania and
Virginia to exchange information on this issue. In addition, EPA
Regions 1, 3, 4, and 9 served as conduits for transmittal of section
316(b) information between the Agency and several States. More
recently, EPA met with industry, environmental, and State and Federal
government representatives, during May, June, and July of this year to
discuss regulatory alternatives for the new facility proposal. Comments
from these meetings helped EPA to evaluate and revise draft regulatory
framework alternatives.
In the spirit of this Executive Order and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. E.O. 12898
provides that each Federal agency must conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
Today's proposed rule would require that the location, design,
construction, and capacity of cooling water intake structures at new
facilities reflect the best technology available for minimizing adverse
environmental impact. For several reasons, EPA does not expect that
this proposed rule would have an exclusionary effect, deny persons the
benefits of the NPDES program, or subject persons to discrimination
because of their race, color, or national origin. The proposed rule
applies only to new facilities with cooling water intake structures
that withdraw waters of the U.S. As discussed previously, EPA
anticipates that this proposed rule would not affect a large number of
new facilities; therefore, any impacts of the proposed rule would be
limited. The proposed rule does include location criteria that would
affect siting decisions made by new facilities, these criteria are
intended to prevent deterioration of our nation's aquatic resources.
EPA expects that this proposed rule would preserve the health of
aquatic ecosystems located in reasonable proximity to new cooling water
intake structures and that all populations, including minority and low-
income populations, would benefit from such improved environmental
conditions. In addition, because the proposed rule would help prevent
decreases in populations of fish and other aquatic species, it is
likely to help maintain the welfare of subsistence and other low-income
fishermen or minority low-income populations.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the
[[Page 49111]]
environmental health and safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. This proposed rule is not an economically significant
rule as defined under Executive Order 12866 and does not involve an
environmental health or safety risk that would have a disproportionate
effect on children. Therefore, it is not subject to Executive Order
13045. Further, this rule does not concern an environmental health or
safety risk that EPA has reason to believe may disproportionately
affect children.
H. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian Tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian Tribal governments. Given the available data on
new facilities and the applicability thresholds in the proposed rule,
EPA estimates that no new facilities subject to the rule will be owned
by Tribal governments. This rule does not affect Tribes in anyway in
the foreseeable future. Accordingly, the requirements of section 3(b)
of Executive Order 13084 do not apply to this rule.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Pub L. No. 104-113, Sec. 12(d) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices that are developed or adopted by voluntary consensus standard
bodies. The NTTAA directs EPA to provide Congress, through the Office
of Management and Budget (OMB), explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rule does not involve such technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed rule
and , specifically, invites the public to identify potentially
applicable voluntary consensus standards and to explain why such
standards should be used in this proposed rule.
J. Plain Language Directive
Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language. We
invite your comments on how to make this proposed rule easier to
understand. For example: Have we organized the material to suit your
needs? Are the requirements in the rule clearly stated? Does the rule
contain technical language or jargon that isn't clear? Would a
different format (grouping and order of sections, use of headings,
paragraphing) make the rule easier to understand? Would more (but
shorter) sections be better? Could we improve clarity by adding tables,
lists, or diagrams? What else could we do to make the rule easier to
understand?
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.''
This proposed rule recognizes that there are sensitive biological
areas within tidal rivers, estuaries, oceans, and the Great Lakes that
are more susceptible to adverse environmental impact from cooling water
intake structures. The location of cooling water intake structures is a
key factor in minimizing adverse environmental impact. This proposal
provides incentives for facilities to locate their cooling water intake
structures outside these sensitive biological areas. In those cases
where a facility does locate a cooling water intake structure inside
these sensitive areas, EPA is proposing that the facility meet the most
stringent requirements to minimize adverse environmental impact. This
proposed rule would improve the survivability of impinged organisms and
reduce the rate of entrained organisms. Therefore, EPA expects this
proposal will advance the objective of the executive order to protect
marine areas. However, because Executive Order 13158 is new as of May
26, 2000 and EPA has not yet developed implementing regulations, it may
be necessary to change the requirements for marine protected areas
under this proposal to comply with any future EPA regulations developed
to further the objectives of this executive order (e.g., it may be
necessary to prohibit or severely limit cooling water withdrawals from
marine protected areas).
XII. Solicitation of Comments and Data
A. Specific Solicitation of Comment and Data
As noted in the above sections, EPA solicits comments and data on
many individual topics throughout this preamble. The Agency
incorporates all such requests for comment here and reiterates its
interest in receiving comments and data on the issues addressed by
those requests. In addition, EPA particularly requests comments and
data on the following issues:
1. EPA solicits comment on the proposed section 316(b) requirements
and the methods used to determine the benefit and cost impact values
supporting this proposed regulation.
2. EPA solicits comment on the potential impact of the proposed
rule on
[[Page 49112]]
small entities and on issues related to such impacts.
3. EPA solicits comment on the scope and applicability of the
proposed rule, including how EPA has proposed to define ``new
facility,'' ``cooling water intake structure,'' the various thresholds
that determine the scope of the rule, and the alternative BTA
provisions considered by the Agency.
4. EPA solicits data and comment on the number and types of new
facilities potentially subject to today's proposed rule.
5. EPA solicits data and comment on the environmental impacts
caused by cooling water intake structures at new facilities.
6. EPA solicits comment on appropriate definitions of ``adverse
environmental impact'' for purposes of the proposed rule, including
whether EPA should include a definition of adverse environmental impact
in the final rule or guidance.
7. EPA solicits comment on the frameworks proposed and considered
for BTA, including but not limited to the proposed requirements for
flow, velocity, location (distance from the littoral zone), and use of
additional design and construction technologies.
8. EPA solicits comment on whether it should allow site-specific
flexibility in the determination of BTA, and if so, under which of the
regulatory approaches discussed in this preamble.
9. EPA solicits comment on the possible use of restoration
measures.
10. EPA solicits comment on how the Agency has considered the cost
for new facilities to comply with the proposed BTA requirements.
11. EPA solicits comment on how the proposed cooling water intake
structure requirements would be implemented, including the need for and
burden associated with monitoring, recordkeeping, reporting, and study
requirements.
12. EPA solicits comment on how endangered and threatened species
are considered under the proposed rule.
13. EPA solicits comment on the monitoring requirement and other
approaches that could be used to ensure that the design intake velocity
is not exceeded once the facility is built and operating.
14. EPA solicits comment on whether additional procedural
provisions are necessary to establish or clarify the permitting process
for new facilities employing cooling water intake structures.
B. General Solicitation of Comment
EPA encourages public participation in this rulemaking. EPA asks
that comments address any perceived deficiencies in the record
supporting this proposal and that suggested revisions or corrections be
supported by data.
EPA invites all parties to coordinate their data collection
activities with the Agency to facilitate mutually beneficial and cost-
effective data submissions. Please refer to the FOR FURTHER INFORMATION
section at the beginning of this preamble for technical contacts at
EPA.
To ensure that EPA can properly respond to comments, the Agency
prefers that commenters cite, where possible, the paragraph(s) or
sections in the document or supporting documents to which each comment
refers. Please submit an original and two copies of your comments and
enclosures (including references).
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 123
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
Administrative practice and procedure, Air pollution control,
Hazardous waste, Indians-lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
40 CFR Part 125
Cooling water intake structures, Reporting and recordkeeping
requirements, Waste treatment and disposal, Water pollution control.
Dated: July 20, 2000.
Carol M. Browner,
Adminstrator.
BILLING CODE 6560-50-P
[[Page 49113]]
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[GRAPHIC] [TIFF OMITTED] TP10AU00.006
[[Page 49114]]
[GRAPHIC] [TIFF OMITTED] TP10AU00.007
BILLING CODE 6560-50-C
[[Page 49115]]
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-1136y; 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, 11345 (d) and (e), 1361; E.O. 11735, 38 FR 21243,
3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f,
300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-
2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q,
7542, 9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding entries in numerical
order under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paper Work Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation no.
------------------------------------------------------------------------
* * * * *
Criteria and Standards for the National Pollutant Discharge
Elimination System
* * * * *
125.85..................................................... 2040-
125.87..................................................... 2040-
* * * * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 122.21 by adding a new paragraph (r)(1) to read as
follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25)
* * * * *
(r) Applications for facilities with cooling water intake
structures--(1) New facilities with new or modified cooling water
intake structures. New facilities with cooling water intake structures
as defined in part 125, subpart I of this chapter must report the
information required under Sec. 125.86 of this chapter. Requests for
alternative requirements under Sec. 125.85 of this chapter must be
submitted with your permit application.
(2) [Reserved].
3. Amend Sec. 122.44 to add 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 at
new facilities under section 316(b) of the CWA, in accordance with part
125, subpart I of this chapter.
* * * * *
PART 123--STATE PROGRAM REQUIREMENTS
1. The authority citation for part 123 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 123.25 to revise paragraph (a)(36) to read as
follows:
Sec. 123.25 Requirements for permitting.
(a) * * *
(36) Subparts A, B, D, H, and I of part 125 of this chapter.
* * * * *
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air
Act, 42 U.S.C. 1857 et seq.
2. Amend Sec. 124.10 to redesignate paragraph (d)(1)(ix) as
paragraph (d)(1)(x) and to add a new paragraph (d)(1)(ix) to read as
follows:
Sec. 124.10 Public notice of permit actions and public comment period.
* * * * *
(d) * * *
(1) * * *
(ix) Requirements applicable to cooling water intake structures at
new facilities under section 316(b) of the CWA, in accordance with part
125, subpart I of this chapter.
* * * * *
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 125 continues to read as
follows:
Authority: Clean Water Act, as amended by the Clean Water Act of
1977, 33 U.S.C. 1251 et seq., unless otherwise noted.
2. Add subpart I to part 125 to read as follows:
Subpart I--Requirements Applicable to Cooling Water Intake
Structures for New Facilities under Section 316(b) of the Act
Sec.
125.80 What are the purpose and scope of this subpart?
125.81 Who is subject to this subpart?
125.82 When must I comply with this subpart?
125.83 What special definitions apply to this subpart?
125.84 As an owner or operator of a new facility, what must I do to
comply with this subpart?
125.85 May alternative requirements be imposed?
125.86 As an owner or operator of a new facility, what must I
collect and submit when I apply for my new or reissued NPDES permit
to show that I am complying with this subpart?
125.87 As an owner or operator of a new facility, must I perform
monitoring?
125.88 As an owner or operator of a new facility, must I keep
records and report?
125.89 As the Director, what must I do to comply with the
requirements of this subpart?
Subpart I--Requirements Applicable to Cooling Water Intake
Structures for New Facilities under Section 316(b) of the Act
Sec. 125.80 What are the purpose and scope of this subpart?
(a) This subpart establishes requirements that apply to the
location, design, construction, and capacity of cooling water intake
structures at new facilities. The purpose of these requirements is to
minimize adverse environmental impact associated with the use of
cooling water intake structures. These requirements must be implemented
through National Pollutant Discharge Elimination System (NPDES) permits
issued under section 402 of the Clean Water Act (CWA).
(b) This subpart implements section 316(b) of the CWA for new
facilities. Section 316(b) of the CWA provides that any standard
established pursuant to sections 301 or 306 of the CWA and applicable
to a point source shall require that the location, design,
construction, and capacity of cooling water intake structures reflect
the best technology available for minimizing adverse environmental
impact.
(c) 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
[[Page 49116]]
more stringent than those required by Federal law.
Sec. 125.81 Who is subject to this subpart?
This subpart applies to all new facilities that propose to use a
cooling water intake structure; that are, or will be, subject to a
National Pollutant Discharge Elimination System (NPDES) permit; and
that have a design intake flow of greater than two (2) million gallons
per day (MGD).
Sec. 125.82 When must I comply with this subpart?
New facilities subject to this subpart must comply with this
subpart before they begin to withdraw cooling water.
Sec. 125.83 What special definitions apply to this subpart?
When used in this subpart:
7Q10 means the lowest average seven-consecutive-day low flow with
an average recurrence frequency of once in 10 years determined
hydrologically.
Annual mean flow means the average of daily flows over a calendar
year. Historical data (up to 10 years) should be used where available.
Closed-cycle recirculating system means a system designed, using
minimized makeup and blowdown flows, to withdraw water from a natural
or other water source to support contact and 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 and
then is returned to the system. (Some facilities divert the waste heat
to other process operations.) New source water (makeup 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 air conditioning, 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 intake structure means the total physical structure
and any associated constructed waterways used to withdraw water from
waters of the U.S., provided that at least 25 percent of the water
withdrawn is used for cooling purposes. The cooling water intake
structure extends from the point at which water is withdrawn from the
surface water source to the first intake pump or series of pumps.
Design intake flow means the value assigned (during the facility's
design) to the total volume of water withdrawn from a source water body
over a specific time period.
Design intake velocity means the value assigned (during the design
of a cooling water intake structure) to the average speed at which
intake water passes through the open area of the intake screen (or
other device) against which organisms might be impinged or through
which they might be entrained.
Entrainment means the incorporation of fish, eggs, larvae, and
other plankton with intake water flow entering and passing through a
cooling water intake structure and into a cooling water system.
Estuary means all or part of the mouth of a river or stream or
other body of water having an unimpaired natural 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 less than 30 parts per thousand
(by mass).
Existing facility means any facility that is not a new facility.
Freshwater river or stream means a lotic (free-flowing) system that
does not receive significant inflows of water from oceans or bays due
to tidal action.
Impingement means the entrapment of aquatic organisms on the outer
part of an intake structure or against a screening device during
periods of intake water withdrawal.
Lake 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 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 might be fed by rivers, streams,
springs, and/or local precipitation.
Littoral zone means any nearshore area in a freshwater river or
stream, lake or reservoir, or estuary or tidal river extending from the
level of highest seasonal water to the deepest point at which submerged
aquatic vegetation can be sustained (i.e., the photic zone extending
from shore to the substrate receiving one (1) percent of incident
light); where there is a significant change in slope that results in
changes to habitat and/or community structure; and where there is a
significant change in the composition of the substrate (e.g., cobble to
sand, sand to mud). In oceans, the littoral zone encompasses the photic
zone of the neritic region. The photic zone is that part of the water
that receives sufficient sunlight for plants to be able to
photosynthesize. The neritic region is the shallow water or nearshore
zone over the continental shelf.
Maximize means to increase to the greatest possible amount, extent,
or degree.
Minimize means to reduce to the smallest possible amount, extent,
or degree.
Natural thermal stratification means the naturally occurring
division of a waterbody into horizontal layers of differing densities
as a result of variations in temperature at different depths.
New facility means any building, structure, facility, or
installation that meets the definition of a ``new source'' or ``new
discharger;'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4); commences
construction after [the effective date of the final rule]; and has a
new or modified cooling water intake structure.
Ocean means marine open coastal waters with a salinity greater than
or equal to 30 parts per thousand (by mass).
Reservoir means any natural or constructed basin where water is
collected and stored.
Source water means the water body (waters of the U.S.) from which
the cooling water is withdrawn.
Tidal excursion means the horizontal distance along the estuary
that a particle moves during one tidal cycle of ebb and flow.
Tidal river means the most seaward reach of a river or stream where
the salinity is less than or equal to 0.5 parts per thousand (by mass)
at a time of annual low flow and whose surface elevation responds to
the effects of coastal lunar tides.
Sec. 125.84 As an owner or operator of a new facility, what must I do
to comply with this subpart?
(a) If your new facility's cooling water intake structure is
located in any of the types of water bodies in the first column of the
following table, you must comply with the requirements in the second
column.
[[Page 49117]]
------------------------------------------------------------------------
If your cooling water intake structure is
located in a[n] . . . Then . . .
------------------------------------------------------------------------
(1) Freshwater river or stream............ You must comply with
paragraphs (b), (f), and
(g) of this section and
applicable requirements in
Sec. 125.86 (application
requirements), Sec. 125.87
(monitoring requirements),
and Sec. 125.88
(recordkeeping
requirements).
(2) Lake or reservoir..................... You must comply with
paragraphs (c), (f), and
(g) of this section and
applicable requirements in
Sec. 125.86 (application
requirements), Sec. 125.87
(monitoring requirements),
and Sec. 125.88
(recordkeeping
requirements).
(3) Estuary or tidal river................ You must comply with
paragraphs (d), (f), and
(g) of this section and
applicable requirements in
Sec. 125.86 (application
requirements), Sec. 125.87
(monitoring requirements),
and Sec. 125.88
(recordkeeping
requirements).
(4) Ocean................................. You must comply with
paragraphs (e), (f), and
(g) of this section and
applicable requirements in
Sec. 125.86 (application
requirements), Sec. 125.87
(monitoring requirements),
and Sec. 125.88
(recordkeeping
requirements).
------------------------------------------------------------------------
(b) If your new facility has one or more cooling water intake
structures located in a freshwater river or stream, you must comply
with the requirements of paragraphs (b)(1), (b)(2), or (b)(3) of this
section. A table summarizing the applicable requirements follows.
Table-Summary of Requirements for Freshwater Rivers or Streams Based on the Location of the Cooling Water Intake
Structure
----------------------------------------------------------------------------------------------------------------
Location of Cooling Water Intake Structure Opening
--------------------------------------------------------------
50
Requirements Meters Outside 50 Meters Outside Inside Littoral
Littoral Zone [Sec. Littoral Zone [Sec. Zone [Sec.
125.84(b)(1)] 125.84(b)(2)] 125.84(b)(3)]
----------------------------------------------------------------------------------------------------------------
1. Design intake flow 5% source water
annual mean flow or 25% of source
water 7q10......................................
2. Design intake velocity 0.5 ft/s....
3. Reduce intake flow to a level commensurate
with a closed cycle recirculating cooling water
system..........................................
4. Implement additional design and construction
technologies....................................
----------------------------------------------------------------------------------------------------------------
(1) If the opening to your cooling water intake structure is
located at least 50 meters outside the littoral zone in a freshwater
river or stream, you must meet all of the following requirements:
(i) The total design intake flow from all cooling water intake
structures at your facility must be no more than the more stringent of
5 percent of the source water annual mean flow or 25 percent of the
source water 7Q10;
(ii) The maximum design intake velocity at each cooling water
intake structure at your facility must be no more than 0.5 ft/s.
(2) If the opening to your cooling water intake structure is
located less than 50 meters outside the littoral zone in a freshwater
river or stream, you must meet all of the following requirements:
(i) The total design intake flow from all cooling water intake
structures at your facility must be no more than the more stringent of
5 percent of the source water annual mean flow or 25 percent of the
source water 7Q10;
(ii) The maximum design intake velocity at each cooling water
intake structure at your facility must be no more than 0.5 ft/s;
(iii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(3) If the opening to your cooling water intake structure is
located inside the littoral zone in a freshwater river or stream, you
must meet all of the following requirements:
(i) The total design intake flow from all cooling water intake
structures at your facility must be no more than the more stringent of
5 percent of the source water annual mean flow or 25 percent of the
source water 7Q10;
(ii) The maximum design intake velocity at all cooling water intake
structures at your facility must be no more than 0.5 ft/s;
(iii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(iv) You must implement additional design and construction
technologies that minimize impingement and
[[Page 49118]]
entrainment of fish, eggs, and larvae and maximize survival of impinged
adult and juvenile fish;
(c) If your new facility has one or more cooling water intake
structures located in a lake or reservoir, you must comply with the
requirements of paragraphs (c)(1), (c)(2), or (c)(3) of this section. A
table summarizing the applicable requirements follows.
Table-Summary of Requirements for Lakes or Reservoirs Based on the Location of the Cooling Water Intake
Structure
----------------------------------------------------------------------------------------------------------------
Location of Cooling Water Intake Structure Opening
--------------------------------------------------------------
50 50
Requirements Meters Outside Meters Outside Inside Littoral
Littoral Zone [Sec. Littoral Zone [Sec. Zone [Sec.
125.84(c)(1)] 125.84(c)(2)] 125.84(c)(3)]
----------------------------------------------------------------------------------------------------------------
1. Design intake flow must not alter the natural
thermal stratification..........................
2. Design intake velocity 0.5 ft/s....
3. Reduce intake flow to a level commensurate
with a closed cycle recirculating cooling water
system..........................................
4. Implement additional design and construction
technologies....................................
----------------------------------------------------------------------------------------------------------------
(1) If the opening to your cooling water intake structure is
located at least 50 meters outside the littoral zone in a lake or
reservoir, you must meet all of the following requirements: The total
design intake flow at your facility must not alter the natural thermal
stratification of the source water.
(2) If the opening to your cooling water intake structure is
located less than 50 meters outside the littoral zone in a lake or
reservoir, you must meet all of the following requirements:
(i) The total design intake flow at your facility must not alter
the natural thermal stratification of the source water;
(ii) The maximum design intake velocity at each cooling water
intake structure at your facility must be no more than 0.5 ft/s;
(iii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(3) If the opening to your cooling water intake structure is
located inside the littoral zone in a lake or reservoir, you must meet
all of the following requirements:
(i) The total design intake flow at your facility must not alter
the natural thermal stratification of the source water;
(ii) The maximum design intake velocity at each cooling water
intake structure at your facility must be no more than 0.5 ft/s;
(iii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(iv) You must implement additional design and construction
technologies that minimize impingement and entrainment of fish, eggs,
and larvae and maximize survival of impinged adult and juvenile fish;
(d) If your new facility has one or more cooling water intake
structures located in an estuary or a tidal river, you must comply with
the requirements of paragraph (d)(1) of this section. A table
summarizing the applicable requirements follows.
Table-Summary of Requirements for Estuaries or Tidal Rivers Based on the
Location of the Cooling Water Intake Structure
------------------------------------------------------------------------
Location of Cooling
Water Intake
Structure Opening
Requirements for estuaries or tidal rivers --------------------
Anywhere in Estuary
or Tidal River
[Sec.
--------------------------------------------------------125.84(d)(1)]---
1. Design intake flow 1% of the volume
of the water column (see 125.84(d)(1))............
2. Design intake velocity 0.5 ft/s......
3. Reduce intake flow to a level commensurate with
a closed cycle recirculating cooling water system.
4. Implement additional design and construction
technologies......................................
------------------------------------------------------------------------
(1) If the opening to your cooling water intake structure is
located anywhere in an estuary or a tidal river, you must meet all of
the following requirements:
(i) The total design intake flow from all cooling water intake
structures at your facility must be no greater than one (1) percent of
the volume of the water column within the area centered about the
opening of the intake with a diameter defined by the distance of one
tidal excursion at the mean low water level;
(ii) The maximum design intake velocity at all cooling water intake
structures at your facility must be no more than 0.5 ft/s;
(iii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(iv) You must implement additional design and construction
technologies that minimize impingement and entrainment of fish, eggs,
and larvae and maximize survival of impinged adult and juvenile fish;
(e) If your new facility has one or more cooling water intake
structures located in an ocean, you must comply with the requirements
of paragraphs (e)(1) or (2) of this section. A table summarizing the
applicable requirements follows.
[[Page 49119]]
Table-Summary of Requirements for Oceans Based on the Location of the
Cooling Water Intake Structure
------------------------------------------------------------------------
Location of cooling water intake
structure opening
-----------------------------------------
Requirements Outside littoral Inside littoral
zone [Sec. zone [Sec.
125.84(e)(1)] 125.84(e)(2)]
------------------------------------------------------------------------
1. Design intake velocity
thn-eq> 0.5 ft/s.............
2. Reduce intake flow to a
level commensurate with a
closed cycle recirculating
cooling water system.........
3. Implement additional design
and construction technologies
------------------------------------------------------------------------
(1) If the opening to your cooling water intake structure is
located outside the littoral zone in an ocean, you must meet all of the
following requirements:
(i) The maximum design intake velocity at each cooling water intake
structure at your facility must be no more than 0.5 ft/s.
(2) If the opening to your cooling water intake structure is
located inside the littoral zone in an ocean, you must meet all of the
following requirements:
(i) The maximum design intake velocity at each cooling water intake
structure at your facility must be no more than 0.5 ft/s;
(ii) You must reduce your intake flow to a level commensurate with
that which can be attained by a closed-cycle recirculating cooling
water system;
(iii) You must implement additional design and construction
technologies that minimize impingement and entrainment of fish, eggs,
and larvae and maximize survival of impinged adult and juvenile fish;
(f) The Director may include more stringent requirements in the
permit than those specified in paragraphs (a) through (e) of this
section if he or she determines that they are reasonably necessary to
minimize impingement and entrainment as a result of the effects of
multiple cooling water intake structures in the same body of water;
seasonal variations in the aquatic environment affected by the cooling
water intake structures controlled by the permit; or the presence of
regionally important species.
(g) The Director must include any more stringent requirements
relating to the location, design, construction, and capacity of a
cooling water intake structure at a new facility that are reasonably
necessary to ensure attainment of water quality standards, including
designated uses, criteria, and antidegradation requirements.
Sec. 125.85 May alternative requirements be imposed?
(a) Any interested person may request that alternative requirements
less stringent than those specified in Sec. 125.84(a) through (e) be
imposed in the permit. The Director also may propose alternative
requirements in the draft permit. A request for the establishment of
alternative requirements less stringent than the requirements of
Sec. 125.84(a) through (e) may be approved only if:
(1) There is an applicable requirement under Sec. 125.84(a) through
(e);
(2) Data specific to the facility indicate that compliance with the
requirement at issue would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirement
at issue;
(3) The alternative requirement requested is no less stringent than
justified by the wholly out of proportion cost; and
(4) The alternative requirement will ensure compliance with
sections 208(e) and 301(b)(1)(C) of the Clean Water Act.
(b) The burden is on the person requesting the alternative
requirement to demonstrate that alternative requirements should be
imposed. The requester should refer to all relevant information,
including the support documents for this rulemaking, all associated
data collected for use in developing each requirement, and other
relevant information that is kept on public file by EPA to demonstrate
that the appropriate requirements of paragraph (a) of this section have
been met.
Sec. 125.86 As an owner or operator of a new facility, what must I
collect and submit when I apply for my new or reissued NPDES permit to
show that I am complying with this subpart?
(a) Source water baseline biological characterization. As an owner
or operator of a new facility, you must begin to collect source water
baseline biological characterization data at least 1 year before you
must submit your permit application to the Director.
(1) This information is required to evaluate the condition of the
biological community and to identify potential (and/or to minimize
actual) entrainment and impingement impacts from each cooling water
intake structure. The Director will use the information to determine
compliance with requirements involving additional design and
construction technology requirements and the need for more stringent
requirements under Sec. 125.84(f) and (g). As part of this evaluation,
you must collect data on both nekton and meroplankton to determine the
abundance of relevant species or taxa, and life stages in the water
column in the vicinity of each proposed or actual cooling water intake
structure. Based on the available life history information and
collected data, you also must determine which species and life stages
would be most susceptible to impingement or entrainment. With the
Director's approval, you may use existing data instead of actual field
studies. You must comply with the following requirements and document
them in a report submitted to the Director.
(2)(i) If you are required to comply with the requirements in
Sec. 125.84(b)(3), (c)(3), (d)(1), or (e)(2), you must develop a
sampling plan that documents all methods and quality assurance
procedures for data collection, sampling, and analysis. You must submit
this plan to the Director for review and approval before any sampling
activities begin.
(ii) If you are required to comply with the requirements in
Sec. 125.84(b)(1), (b)(2), (c)(1), (c)(2), or (e)(1), you must develop
a sampling plan that documents all methods and quality assurance
procedures for data collection, sampling, and analysis and maintain the
plan at your facility. You are not required to submit this plan to the
Director.
(iii) The sampling and data analysis methods you propose must be
appropriate for a quantitative survey and based on a consideration of
methods used in other biological studies performed in the source water
body. The study area should include, at a minimum, the area of
influence of the cooling water intake structure. The sampling plan must
include a
[[Page 49120]]
description of the study area (which must include the area of influence
of the cooling water intake structure and at least 100 meters beyond);
a list and description of other relevant studies; a proposal to use
data in lieu of actual sampling (if applicable); identification of the
biological assemblages to be sampled (both nekton and meroplankton);
data collection, sampling, and analysis methods; and any public
participation or consultation with Federal or State agencies undertaken
in development of the plan.
(3) All owners or operators of new facilities must comply with the
following requirements:
(i) Identify up to ten (10) species most important in terms of
significance to commercial and recreational fisheries and the forage
base.
(ii) Identify all threatened and endangered species that might be
susceptible to impingement and entrainment.
(iii) Conduct a sampling program covering at least a 1-year cycle
of biological activity in the vicinity of the cooling water intake
structure. If you are required to submit a sampling plan to the
director in paragraph (a) (2)(i) of this section, the sampling must be
based on the Director's approved sampling plan.
(iv) Determine which species are most susceptible to impingement or
entrainment based on the information collected and the primary period
of reproduction, larval recruitment, and peak meroplankton abundance.
(b) As an owner or operator of a new facility, you must submit the
following information to the Director when you apply for a new or
reissued NPDES permit in accordance with 40 CFR 122.21:
(1) Source water physical data. As an owner or operator of a new
facility, you must submit the following source water information that
demonstrates and supports a determination of the appropriate
requirements to apply to your cooling water intake structures.
(i) A narrative description and scaled drawings showing the
physical configuration of all source water bodies, including areal
dimensions, depths, salinity regimes, and other documentation that
supports your determination of the water body type where each cooling
water intake structure is located;
(ii) A narrative description of the configuration of each cooling
water intake structure and where it is located in the water body and in
the water column;
(iii) Documentation delineating the littoral zone of the water body
in the vicinity of each cooling water intake structure, including light
penetration and hydromorphological data, submerged aquatic vegetation,
substrate data, and a demonstration of where the cooling water intake
structure is located in relation to the littoral zone; and
(iv) Latitude and longitude in degrees, minutes, and seconds for
each of your cooling water intake structures;
(v) Engineering drawings and locational maps to illustrate the
information required by paragraphs (b)(1)(i), (ii), and (iii) of this
section.
(vi) A report documenting the results of the Source Water Baseline
Characterization required in paragraph (a) of this section.
(2) Cooling water intake structure flow data. As an owner or
operator of a new facility, you must submit the following information
that demonstrates and supports a determination of the appropriate
requirements to apply to your cooling water intake structures.
(i) A narrative description of the operation of all cooling water
intake structures, including design intake flows, daily hours of
operation, and seasonal changes, if applicable; and
(ii) A flow distribution and water balance diagram that includes
all sources of water to the facility, recirculating flows, and
discharges.
(3) Flow requirements. If you must comply with the cooling water
intake structure flow requirements in Sec. 125.84(b)(2)(iii),
(b)(3)(iii), (c)(2)(iii), (c)(3)(iii), (d)(1)(iii), (e)(1)(ii), or
(e)(2)(iii), you must submit the following information to the Director:
(i) If your cooling water intake structure is located in a
freshwater river or stream, you must provide the annual mean and 7Q10
flows and any supporting documentation and engineering calculations to
show that your cooling water intake structure meets the flow
requirements.
(ii) If your cooling water intake structure is located in an
estuary or tidal river, you must provide the mean low water tidal
excursion distance and any supporting documentation and engineering
calculations to show that your cooling water intake structure facility
meets the flow requirements.
(iii) If your cooling water intake structure is located in a lake
or reservoir, you must provide a narrative description of the water
body stratification, and any supporting documentation and engineering
calculations to show that the stratification will not be upset by the
design intake flow.
(4) Velocity requirement. If you must comply with the cooling water
intake structure velocity requirement in Sec. 125.84(b)(1)(ii),
(b)(2)(ii), (b)(3)(ii), (c)(2)(ii), (c)(3)(ii), (d)(1)(ii), (e)(1)(i),
or (e)(2)(i), you must submit the following information to the
Director:
(i) A narrative description of the design, structure, equipment,
and operation used to meet the velocity requirement; and
(ii) Design calculations showing that the velocity requirement will
be met at minimum ambient source water surface elevation and maximum
head loss across the screens or other device.
(5) Flow reduction requirement. If you must comply with the
requirement to reduce your flow to a level commensurate with that which
can be attained by a closed-cycle recirculating cooling water system in
Sec. 125.84(b)(2)(iii), (b)(3)(iii), (c)(2)(iii), (c)(3)(iii),
(d)(1)(iii), (e)(1)(ii), or (e)(2)(ii), you must submit a narrative
description of the closed-cycle recirculating cooling water system
design and any engineering calculations, including documentation
demonstrating that your make-up and blowdown have been minimized. If
you meet the flow reduction requirement by reusing 100 percent of the
cooling water withdrawn from a source water, you must provide a
demonstration that 100 percent of the cooling water is reused in one or
more unit processes at the facility.
(6) Additional design and construction technology requirement. If
you must comply with the requirement in Sec. 125.84(b)(3)(iv),
(c)(3)(iv), (d)(2)(iv), or (e)(2)(iii) to implement additional design
and construction technologies that maximize the survival of impinged
adult and juvenile fish and minimize the entrainment of fish, eggs, and
larvae, you must submit to the Director for review and approval a plan
that contains information on the technologies you propose to implement
based on the results of the Source Water Baseline Biological
Characterization required by Sec. 125.86(a). The plan must contain the
following information:
(i) A narrative description of the design and operation of any
additional design and construction technologies, including fish-
handling and return systems, that you will use to maximize the survival
of those species expected to be most susceptible to impingement.
Provide species-specific information that demonstrates the efficacy of
the technology.
(ii) A narrative description of the design and operation of any
additional design and construction technologies that you will use to
minimize entrainment of those species expected to be the most
susceptible to entrainment. Provide species-specific information
[[Page 49121]]
that demonstrates the efficacy of the technology.
(iii) Design calculations, drawings, and estimates to support the
descriptions provided in paragraphs (b)(6)(i) and (ii) of this section.
(7) Data to support alternative requirements. If you are seeking
alternative requirements under Sec. 125.85, you must submit data that
demonstrate that your compliance costs are wholly out of proportion to
the costs considered by EPA in establishing the requirements in
Sec. 125.84 (a) through (e).
(8) Other data. As an owner or operator you must submit other
information required by the Director to determine appropriate
requirements and other permit conditions to minimize adverse
environmental impact.
Sec. 125.87 As an owner or operator of a new facility, must I perform
monitoring?
As an owner or operator of a new facility, you will be required to
perform monitoring to demonstrate your compliance with the velocity
requirement specified in Sec. 125.84, perform visual inspection of the
technologies installed, and assess the need for additional design and
construction technologies to minimize entrainment and maximize
impingement survival. This section contains monitoring requirements,
including how often you must monitor.
(a) Biological monitoring. You must monitor both impingement and
entrainment of the commercial and recreational fisheries and the forage
base species identified in the Source Water Baseline Biological
Characterization required by Sec. 125.86(a). The monitoring methods
used must be consistent with those used for the Source Water Baseline
Biological Characterization required under Sec. 125.86(a). You must
follow the monitoring frequencies identified below for at least two (2)
years after the initial permit issuance. After that time, the Director
may approve a request for less frequent sampling in the remaining years
of the permit term and when the permit is reissued, if supporting data
show that less frequent monitoring would still allow for the detection
of any seasonal and daily variations in the species and numbers of
individuals that are impinged or entrained.
(1) Impingement. You must collect samples to monitor impingement
rates for each species over a 24-hour period and no less than once per
month.
(2) Entrainment. You must collect samples to monitor entrainment
rates for each species over a 24-hour period and no less than biweekly
during the primary period of reproduction, larval recruitment, and peak
meroplankton abundance identified during the Source Water Baseline
Biological Characterization required by Sec. 125.86(a).
(b) Velocity monitoring. If your facility uses intake screen
systems, you must monitor head loss across the screens and correlate
the measured value with the design intake velocity. The head loss
across the intake screen must be measured at the minimum ambient source
water surface elevation and maximum head loss for each cooling water
intake structure. If your facility uses devices other than intake
screens, you must monitor velocity at the point of entry through the
device. You must monitor head loss or velocity during initial facility
startup, and thereafter, at the frequency specified in your NPDES
permit, but no less than once per quarter.
(c) Visual inspections. You must conduct visual inspections at
least weekly to ensure that any additional design and construction
technologies implemented under the plan required by Sec. 125.86(b)(6),
and other technologies to minimize entrainment and maximize impingement
survival are maintained and operated so as to ensure that they will
continue to function as designed.
Sec. 125.88 As an owner or operator of a new facility, must I keep
records and report?
As an owner or operator of a new facility you are required to keep
records and to report information and data to the Director as follows:
(a) You must keep records of all the data used to complete the
permit application and show compliance with the requirements, any
supplemental information developed under Sec. 125.86, and any
compliance monitoring data submitted under Sec. 125.87, for a period of
at least three (3) years from the date of permit issuance. The Director
may require that these records be kept for a longer period.
(b) You must provide the following to the Director in a yearly
status report:
(1) Biological monitoring records for each cooling water intake
structure as required by Sec. 125.87(a);
(2) Velocity and head loss monitoring records for each cooling
water intake structure as required by Sec. 125.87(b); and
(3) Records of visual inspections as required in Sec. 125.87(c).
Sec. 125.89 As the Director, what must I do to comply with the
requirements of this subpart?
(a) Sampling plan for source water baseline biological
characterization. As the Director, you must review and approve, approve
with comments, or disapprove, the sampling plan required by
Sec. 125.86(a)(2)(i) within 90 days.
(b) Permit application. As the Director, you must review materials
submitted by the applicant under Sec. 125.86(b) at the time of the
initial permit application and before each permit renewal or reissuance
to determine whether there have been any changes in facility operations
or physical and biological attributes of the source water body. You
must evaluate any changes to determine the need for additional or more
stringent conditions in the permit.
(c) Permitting requirements. Section 316(b) requirements are
imposed on facilities through NPDES permits. As the Director, you must
determine, based on the information submitted by the new facility in
its permit application, the appropriate requirements and conditions to
include in the permit based on the location of the cooling water intake
structure and the water body type. You must also review and approve,
approve with comments, or disapprove any plan submitted under
Sec. 125.86(a) or (b)(6). The following requirements must be included
in each permit:
(1) Cooling water intake structure requirements. At a minimum, the
permit conditions must include conditions that implement the
requirements of Sec. 125.84. In addition, you must consider whether
more stringent conditions are reasonably necessary in accordance with
Sec. 125.84(f) and (g).
(2) Monitoring conditions. At a minimum, the permit must require
the permittee to perform the monitoring required by Sec. 125.87. You
may modify the monitoring program when the permit is reissued and
during the term of the permit based on changes in physical or
biological conditions in the vicinity of the cooling water intake
structure.
(3) Recordkeeping and reporting. At a minimum, the permit must
require the permittee to report and keep records as required by
Sec. 128.88.
3. Revise the subpart heading for subpart J to read as follows:
Subpart J--Criteria and Standards Applicable to Cooling Water
Intake Structures for Existing Facilities Under Section 316(b) of
the Act--[Reserved]
[FR Doc. 00-19373 Filed 8-9-00; 8:45 am]
BILLING CODE 6560-50-P