National Pollutant Discharge Elimination System--Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities [[pp. 41625-41674]]

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 9, 2004 (Volume 69, Number 131)]
[Rules and Regulations]
[Page 41625-41674]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy04-32]

[[pp. 41625-41674]]
National Pollutant Discharge Elimination System--Final
Regulations to Establish Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities

[[Continued from page 41624]]

[[Page 41625]]

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

I. EPA Legal Authority

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

[[Page 41626]]

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

[[Page 41627]]

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

[[Page 41628]]

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

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

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

[[Page 41629]]

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

[[Page 41630]]

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

IX. Implementation

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

[[Page 41631]]

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

A. When Does the Final Rule Become Effective?

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

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

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

BILLING CODE 6560-50-P

[[Page 41632]]
[GRAPHIC]
[TIFF OMITTED]
TR09JY04.000

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

[[Page 41633]]

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

[[Page 41634]]

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

[[Page 41635]]

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

[[Page 41636]]

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

[[Page 41637]]

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

[[Page 41638]]

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

[[Page 41639]]

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

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

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

[[Page 41640]]

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

[[Page 41641]]

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

[[Page 41642]]

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

D. What Will I Be Required To Monitor?

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

E. How Will Compliance Be Determined?

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

[[Page 41643]]

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

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

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

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

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

[[Page 41644]]

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

H. Alternative Site-Specific Requirements

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

[[Page 41645]]

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

[[Page 41646]]

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

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

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

Where:

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

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

[[Page 41647]]

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

[[Page 41648]]

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

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

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

X. Engineering Cost Analysis

A. Technology Cost Modules

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

B. Model Facility Cost Development

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

[[Page 41649]]

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

[[Page 41650]]

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

C. Facility Flow Modifications

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

XI. Economic Analysis

A. Final Rule Costs

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

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

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

[[Page 41651]]

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

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

B. Final Rule Impacts

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

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

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

[[Page 41652]]

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

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

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

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

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

[[Page 41653]]

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

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

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

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

[[Page 41654]]

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

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

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

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

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

[[Page 41655]]

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

XII. Benefits Analysis

A. Introduction

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

B. Regional Study Design

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

[[Page 41656]]

benefits for the purposes of this rulemaking.

C. The Physical Impacts of Impingement and Entrainment

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

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

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

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

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

[[Page 41657]]

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

D. National Benefits of Rule

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

[[Page 41658]]

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

[[Page 41659]]

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

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

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

[[Page 41660]]

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

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

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

[[Page 41661]]

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

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

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

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

[[Page 41662]]

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

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

[[Page 41663]]

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

E. Other Considerations

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

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

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

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

[[Page 41664]]

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

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

XIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.

B. Paperwork Reduction Act

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

[[Page 41665]]

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

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For the purposes of assessing the impacts
of today's rule on

[[Page 41666]]

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

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with regulatory requirements.
EPA estimates the total annualized (post-tax) costs of compliance
for facilities subject to the final rule to be $249.5 million (2002$),
of which $216.3 million is incurred by the private sector (including
investor-owned utilities, nonutilities, and rural electric
cooperatives) and $23.1 million is incurred by State and local
governments that operate in-scope facilities.\59\ Additionally,
permitting authorities incur $4.1 million to administer the rule,
including labor costs to write permits and to conduct compliance
monitoring and enforcement activities. EPA estimates that the highest
undiscounted post-tax cost incurred by the private sector in any one
year is approximately $419.1 million in 2009. The highest undiscounted
cost incurred by the government sector in any one year is approximately
$43.5 million in 2008. Thus, EPA has determined that this rule contains
a Federal mandate that may result in expenditures of $100 million or
more for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year. Accordingly, EPA has prepared a written
statement under Sec. 202 of the UMRA, which is summarized as follows.
See Economic and Benefits Analysis, Chapter B5, UMRA Analysis, for
detailed information.
---------------------------------------------------------------------------

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

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

[[Page 41667]]

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

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Rather, this rule would result
in minimal administrative costs on States that have an authorized NPDES
program; would result in minimal costs to States and local government
entities that own facilities subject to the regulation; it maintains
the existing relationship between the national government and the
States in the administration of the NPDES program; and it preserves the
existing distribution of power and responsibilities among various
levels of government. Thus, Executive Order 13132 does not apply to
this rule.
The national cooling water intake structure requirements will be
implemented through permits issued under the NPDES program. Forty-five
States and the Virgin Islands are currently authorized pursuant to
section 402(b) of the CWA to implement the NPDES program. In States not
authorized to implement the NPDES program, EPA issues NPDES permits.
Under the CWA, States are not required to become authorized to
administer the NPDES program. Rather, such authorization (and potential
funding to support administration) is available to States if they
operate their programs in a manner consistent with section 402(b) and
applicable regulations. Generally, these provisions require that State
NPDES programs include requirements that are as stringent as Federal
program requirements. States retain the ability to implement
requirements that are broader in scope or more stringent than Federal
requirements. (See section 510 of the CWA). EPA expects an average
annual burden of 104,606 hours with total average annual cost of $4.8
million

[[Page 41668]]

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

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

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

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

Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
Executive Order 13405 does not apply to this rule because the rule
does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. This
rule establishes requirements for cooling water intake structures to
protect aquatic organisms.

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

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

I. National Technology Transfer and Advancement Act

As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. No.
104-113, section 12(d), (15 U.S.C. 272 note), directs EPA to use
voluntary consensus standards in its regulatory activities unless to do so

[[Page 41669]]

would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standard bodies. The NTTAA directs EPA to provide Congress, through the
Office of Management and Budget (OMB), explanations when the Agency
decides not to use available and applicable voluntary consensus
standards. This rule does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.

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

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

K. Executive Order 13158: Marine Protected Areas

Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
Today's final rule recognizes the biological sensitivity of tidal
rivers, estuaries, oceans, and the Great Lakes and their susceptibility
to adverse environmental impact from cooling water intake structures.
This rule provides the most stringent requirements to minimize adverse
environmental impact for cooling water intake structures located on
these types of waterbodies, including potential reduction of intake
flows to a level commensurate with that which can be attained by a
closed-cycle recirculating cooling system for facilities that withdraw
certain proportions of water from estuaries, tidal rivers, and oceans.
EPA expects that this rule will reduce impingement mortality and
entrainment at facilities with design intake flows of 50 MGD or more.
The rule would afford protection of aquatic organisms at individual,
population, community, or ecosystem levels of ecological structure.
Therefore, EPA expects today's rule would advance the objective of the
Executive Order to protect marine areas.

L. Congressional Review Act

The Congressional Review Act, 5. U.S.C. 801 et seq., as added by
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
can not take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This will be effective September 7, 2004.

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

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

Appendix A

[[Page 41670]]

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

[[Page 41671]]

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

[[Page 41672]]

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

[[Page 41673]]

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

[[Page 41674]]

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

[[Continued on page 41675]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

National Pollutant Discharge Elimination System--Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities [[pp. 41625-41674]]

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