National Pollutant Discharge Elimination System--Amendment of Final 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: June 19, 2003 (Volume 68, Number 118)]
[Rules and Regulations]
[Page 36749-36755]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn03-6]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 125
[FRL-7514-9]
RIN 2040-AD85

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: Today's final rule makes minor changes to EPA's final rule
published December 18, 2001, implementing section 316(b) of the Clean
Water Act (CWA) for new facilities that use water withdrawn from
rivers, streams, lakes, reservoirs, estuaries, oceans or other waters
of the United States for cooling. The December 2001 rule instituted
national technology-based performance requirements applicable to the
location, design, construction, and capacity of cooling water intake
structures at new facilities. These national requirements establish the
best technology available for minimizing adverse environmental impact
associated with the use of these structures. EPA is making several
minor changes to the December 2001 rule because, in several instances,
the final rule text does not reflect the Agency's intent.

DATES: This final rule is effective on July 21, 2003. For judicial
review purposes, this final rule is promulgated as of 1 p.m. Eastern
Standard Time (EST) on July 3, 2003, as provided in 40 CFR 23.2 and
23.7.

FOR FURTHER INFORMATION CONTACT: Martha Segall, USEPA Office of Water
by phone at (202) 566-1041 or by e-mail at rule.316b@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

This final rule applies to new greenfield and stand-alone
facilities that use cooling water intake structures to withdraw water
from waters of the U.S. and that have or require a National Pollutant
Discharge Elimination System (NPDES) permit issued under section 402 of
the CWA. New facilities subject to this regulation include those that
have a design intake flow of greater than two (2) million gallons per
day (MGD) and that use at least twenty-five (25) percent of water
withdrawn for cooling purposes. Today's rule does not apply to existing
facilities, major modifications to existing facilities that would be
``new sources'' under 40 CFR 129.29(b) as that term is used in the
effluent guidelines and standards program, or facilities that employ
cooling water intake structures in the offshore oil and gas extraction
point source category as defined under 40 CFR 435.10 and 40 CFR 435.40.
The following table is not intended to be exhaustive; rather, it
provides a guide for readers regarding entities likely to be regulated
by this action. The table lists the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether your facility is regulated by this action, you should carefully
examine the applicability criteria at 40 CFR 125.81. If you have
questions about the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.

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Examples of Standard industrial North American Industry
Category regulated entities classification codes Codes (NAIC)
----------------------------------------------------------------------------------------------------------------
Federal, State and Local Operators of steam 4911 and 493.............. 221111, 221112, 221113,
Government. electric generating 221119, 221121, 221122,
point source 221111, 221112, 221113,
dischargers that 221119, 221121, 221122
employ cooling
water intake
structures.
Industry.......................... Operators of See below................. See below
industrial point
source dischargers
that employ cooling
water intake
structures.
Steam electric 4911 and 493.............. 221111, 221112, 221113,
generating. 221119, 221121, 221122,
221111, 221112, 221113,
221119, 221121, 221122
Agricultural 0133...................... 111991, 11193
production.
Metal mining........ 1011...................... 21221
Oil and gas 1311, 1321................ 211111, 211112
extraction
(Excluding offshore
and coastal
subcategories).
Mining and quarrying 1474...................... 212391
of nonmetallic
minerals.
Food and kindred 2046, 2061, 2062, 2063, 311221, 311311, 311312,
products. 2075, 2085. 311313, 311222, 311225,
31214
Tobacco products.... 2141...................... 312229, 31221
Textile mill 2211...................... 31321
products.

[[Page 36750]]

Lumber and wood 2415, 2421, 2436, 2493.... 321912, 321113, 321918,
products, except 321999, 321212, 321219
furniture.
Paper and allied 2611, 2621, 2631, 2676.... 3221, 322121, 32213,
products. 322121, 322122, 32213,
322291
Chemical and allied 28 (except 2895, 2893, 325 (except 325182, 32591,
products. 2851, and 2879). 32551, 32532)
Petroleum refining 2911, 2999................ 32411, 324199
and related
industries.
Rubber and 3011, 3069................ 326211, 31332, 326192,
miscellaneous 326299
plastics products.
Stone, clay, glass, 3241...................... 32731
and concrete
products.
Primary metal 3312, 3313, 3315, 3316, 324199, 331111, 331112,
industries. 3317, 3334, 3339, 3353, 331492, 331222, 332618,
3363, 3365, 3366. 331221, 22121, 331312,
331419, 331315, 331521,
331524, 331525
Fabricated metal 3421, 3499................ 332211, 337215, 332117,
products, except 332439, 33251, 332919,
machinery and 339914, 332999
transportation
equipment.
Industrial and 3523, 3531................ 333111, 332323, 332212,
commercial 333922, 22651, 333923,
machinery and 33312
computer equipment.
Transportation 3724, 3743, 3764.......... 336412, 333911, 33651,
equipment. 336416
Measuring, 3861...................... 333315, 325992
analyzing, and
controlling
instruments;
photographic,
medical, and
optical goods;
watches and clocks.
Electric, gas, and 4911, 4931, 4939, 4961.... 221111, 221112, 221113,
sanitary services. 221119, 221121, 221122,
22121, 22133
Educational services 8221...................... 61131
Engineering, 8731...................... 54171
accounting,
research,
management and
related services.
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B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2002-0052. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in Unit I.B.
Once in the system, select ``search,'' then key in the appropriate
docket identification number.

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

On December 18, 2001, EPA published a final rule implementing
section 316(b) of the Clean Water Act for new facilities that use water
withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or
other waters of the United States for cooling purposes. EPA reviewed
the final rule text and believes that the regulatory language did not
correctly reflect EPA's intent with respect to three issues. On
December 26, 2002, EPA published a direct final rule (67 FR 78948)
amending the text of the December 2001 final rule. EPA published a
companion proposed rule on the same day as the direct final rule (67 FR
78956). The proposed rule invited comment on the substance of the
direct final rule. The proposed rule stated that if EPA received
adverse comment by January 27, 2003, the direct final rule would not
take effect and EPA would publish a notice in the Federal Register
withdrawing the direct final rule before the March 26, 2003, effective

[[Page 36751]]

date. EPA subsequently received adverse comment on the direct final
rule, and withdrew the direct final rule on March 19, 2003 (68 FR
14164). Today's rulemaking constitutes EPA's final action on the
proposed rule. With this final action, EPA is addressing and responding
to the adverse comments received on the proposed rule and the direct
final rule.
The legal authority, background, and basis for the December 2001
rule are discussed in the Federal Register notice of rulemaking (66 FR
65256, December 18, 2001). EPA often refers to the final rule
implementing section 316(b) for new facilities as the ``Phase I rule.''
This term is used to avoid confusion with other phases of the section
316(b) rulemaking that mainly cover existing facilities.

III. Summary of the Final Rule

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

A. Velocity Monitoring

The first revision to the regulatory text relates to velocity
monitoring. In the final rule for cooling water intake structures at
new facilities, EPA required that velocity be monitored at cooling
water intake structures at least once per quarter. In monitoring
velocity, facilities that employ surface intake screens are required to
monitor head loss across the intake screens at the ``minimum ambient
source water surface elevation.'' EPA qualified that language in the
requirement by adding a parenthetical phrase that would allow the
minimum ambient source water surface elevation to be determined using
the Director's best professional judgment based on available
hydrological data. See 40 CFR 125.87(b). However, EPA also defined
``minimum ambient source water surface elevation'' at 40 CFR 125.83 to
mean ``the elevation of the 7Q10 flow for freshwater streams or rivers;
the conservation pool level for lakes or reservoirs; or the mean low
tidal water level for estuaries or oceans.'' EPA further defined each
of these low flows in terms of a temporal and hydrological basis. See
66 FR 65339, December 18, 2001.
EPA understands that ambient source water surface elevations
fluctuate through time, and it would be difficult, if not infeasible,
to coordinate the measurements of head loss to the time when these
minimum ambient source water surface elevations were occurring in the
waterbody. It was EPA's intent that the velocity be measured at a time
that is predicted, based on knowledge of the hydrology of the
waterbody, to be a time of reasonable low flow representative of the
low surface elevations that might occur during the months that comprise
each quarter. For example, in tidal waters the velocity measurement
should be taken at a low tide. If tide tables and/or other records
indicate that the surface elevations in a particular month are
typically lower than in other months, the facility should measure
intake velocity at one of the lowest predicted tides during that
particular month. In reservoirs where water levels are drawn down at
certain parts of the year, the facility should measure intake velocity
immediately after a drawdown or release has occurred. In freshwater
rivers and streams, the facility should measure intake velocity during
the month that typically has the lowest flows. Such monitoring should
occur at a time when flows are not temporarily elevated due to recent
storm events. The Director should determine and specify the appropriate
time of measurement in the facility's NPDES permit based on available
existing hydrological information and information submitted by the
owner of the facility with its permit application. Accordingly, to
conform the regulatory text to EPA's intent, EPA believes that the
regulatory language at 40 CFR 125.87 is sufficient and that the
definition of ``minimum ambient source water surface elevation'' is no
longer needed. Therefore, today's action will only delete the
definition of ``minimum ambient source water surface elevation'' at 40
CFR 125.83.

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

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

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

The third issue relates to drafting errors in the alternative
requirements section of the rule. The regulation at 40 CFR 125.85 in
paragraphs (a)(2) and (3) currently refers to local water resources
``not addressed under Sec. 125.84(d)(1)(i)'' intending to refer to
local water resource issues other than impingement or

[[Page 36752]]

entrainment. Cross-referencing this other section of the regulations is
not technically correct, because subsection (d) of Sec. 125.84 is part
of Track II while the alternative requirements provision applies to
either Track I or Track II. Therefore, this action deletes the
reference to 40 CFR 125.84(d)(1)(i) and substitutes language
referencing ``significant adverse impacts on local water resources
other than impingement or entrainment.'' Similarly, to eliminate any
uncertainty regarding applicability of the alternative requirements
provision at 40 CFR 125.85 to the Track II performance requirements at
40 CFR 125.84(d), this action deletes 40 CFR 125.84(d)(1)(ii) because
it is unnecessary and confusing. In addition, the paragraph 40 CFR
125.84(d)(1) and the subparagraph (d)(1)(i) have been combined with
some modifications because a separate subparagraph is no longer needed.

IV. Response to Comments

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

V. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866, [58 FR 51735, October 4, 1993]
the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector or the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business based on the
Small Business Administration's size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impact of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule does not substantively change the December 18, 2001, final rule
for new facilities (66 FR 65256), nor does it impose a significant
economic impact on a substantial number of small entities. This rule
merely makes three minor technical revisions to the December 2001 rule.
These minor changes will clarify the Agency's intent on velocity
monitoring, authority to require additional design and construction
technologies, and procedures for seeking less stringent

[[Page 36753]]

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

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector, in any one year. This rule merely makes three minor technical
revisions to the December 2001 Phase I final regulations for cooling
water intake structures. These minor changes will clarify the Agency's
intent on velocity monitoring, authority to require additional design
and construction technologies, and procedures for seeking less
stringent alternative requirements. It would affect the same facilities
as the December 2001 rule, would have no additional costs or benefits
beyond those already projected, and would not reduce the level of
environmental protection projected. Thus, today's rule is not subject
to the requirements of section 202 and 205 of the UMRA. For the same
reasons, EPA has also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, today's rule is not subject to the requirements of
section 203 of the UMRA.

E. Executive Order 13132: Federalism

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

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

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' ``Policies that have Tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal government and the Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes.''
This final rule does not have Tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified in Executive Order 13175.
This rule merely makes three minor technical revisions to the final
regulations for cooling water intake structures. These minor changes
will clarify the Agency's intent on velocity monitoring, authority to
require additional design and construction technologies, and procedures
for seeking less stringent alternative requirements. It would affect
the same facilities as the December 2001 rule, impose no additional
costs or result in additional benefits beyond those already projected,
and would not reduce the level of environmental protection projected.
This rule will not affect Tribes in any way in the foreseeable future.
Thus, Executive Order 13175 does not apply to this rule.

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

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This final
rule is not economically significant as defined under Executive Order
12866 and does not concern an environmental health or safety risk that
EPA has reason to believe may have a disproportionate effect on
children. This rule merely

[[Page 36754]]

makes three minor technical revisions to the final regulations for
cooling water intake structures. These minor changes will clarify the
Agency's intent on velocity monitoring, authority to require additional
design and construction technologies, and procedures for seeking less
stringent alternative requirements. It would affect the same facilities
as the December 2001 rule, impose no additional costs or result in the
additional benefits beyond those already projected, and would not
reduce the level of environmental protection projected. Therefore, it
is not subject to Executive Order 13045.

H. Executive Order 13211 (Energy Effects)

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

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act (``NTTAA'') of 1995 (Public Law 104-113, Section12(d), 15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
final rule does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.

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

Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
EPA does not expect that this final rule would have an exclusionary
effect, deny persons the benefit of the NPDES program or subject
persons to discrimination because of their race, color, or national
origin. This rule merely makes three minor technical revisions to the
final regulations for cooling water intake structures. These minor
changes will clarify the Agency's intent on velocity monitoring,
authority to require additional design and construction technologies,
and procedures for seeking less stringent alternative requirements. It
would affect the same facilities as the December 2001 rule, would have
no additional costs or benefits beyond those already projected, and
would not reduce the level of environmental protection projected.

K. Executive Order 13158: Marine Protected Areas

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

L. Plain Language Directive

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

M. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective July 21, 2003.

List of Subjects in 40 CFR Part 125

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

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

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

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

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

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

Sec. 125.83 [Amended]

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

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

[[Page 36755]]

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

* * * * *
(b) * * *
(4) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are migratory and/or
sport or commercial species of impingement concern to the Director that
pass through the hydraulic zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director, based on information
submitted by any fishery management agency(ies) or other relevant
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (b)(1), (2), and (3) of
this section, would still contribute unacceptable stress to the
protected species, critical habitat of those species, or species of
concern;
(5) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are or would be
undesirable cumulative stressors affecting entrainable life stages of
species of concern to the Director and the Director determines that the
proposed facility, after meeting the technology-based performance
requirements in paragraphs (b)(1), (2), and (3) of this section, would
still contribute unacceptable stress to the protected species ,
critical habitat of those species, or these species of concern;
* * * * *
(c) * * *
(3) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are migratory and/or
sport or commercial species of impingement concern to the Director that
pass through the hydraulic zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director, based on information
submitted by any fishery management agency(ies) or other relevant
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (c)(1) and (2) of this
section, would still contribute unacceptable stress to the protected
species, critical habitat of those species, or species of concern;
* * * * *
(d) * * *
(1) You must demonstrate to the Director that the technologies
employed will reduce the level of adverse environmental impact from
your cooling water intake structures to a comparable level to that
which you would achieve were you to implement the requirements of
paragraphs (b)(1) and (2) of this section. This demonstration must
include a showing that the impacts to fish and shellfish, including
important forage and predator species, within the watershed will be
comparable to those which would result if you were to implement the
requirements of paragraphs (b)(1) and (2) of this section.
This showing may include consideration of impacts other than
impingement mortality and entrainment, including measures that will
result in increases in fish and shellfish, but it must demonstrate
comparable performance for species that the Director identifies as
species of concern. In identifying such species, the Director may
consider information provided by any fishery management agency(ies)
along with data and information from other sources.
* * * * *

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

Sec. 125.85 May alternative requirements be authorized?

(a) * * *
(2) The Director determines that data specific to the facility
indicate that compliance with the requirement at issue would result in
compliance costs wholly out of proportion to the costs EPA considered
in establishing the requirement at issue or would result in significant
adverse impacts on local air quality, significant adverse impacts on
local water resources other than impingement or entrainment, or
significant adverse impacts on local energy markets;
(3) The alternative requirement requested is no less stringent than
justified by the wholly out of proportion cost or the significant
adverse impacts on local air quality, significant adverse impacts on
local water resources other than impingement or entrainment, or
significant adverse impacts on local energy markets; and
* * * * *

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

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

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