Reply Brief — Entergy Corp. v. Riverkeeper, Inc.

CAO MC

No. & 07-597 Consolidated} or rue

FILED

OCT 28 2008

CLERK

IN THE

Supreme Court of the United States

ENTERGY CORP.,

PSEG LLC and PSEG NUCLEAR LLC, and

UTILITY WATER ACT GROUP,

Petitioners,

v.

RIVERKEEPER, INC., ET AL.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Second Circuit

~

REPLY BRIEF OF PETITIONER

UTILITY WATER ACT GROUP

KRISTY A. N. BULLEIT

Counsel of Record

HUNTON & WILLIAMS LLP

1900 K STREET, N.W.

WASHINGTON, DC 20006

(202) 955-1547

October 28, 2008 Counsel for Petitioner

NE RT Se PY NE ee a NO cee Te CL TR LY SR A

WiLSOnN-E PES PRINTING Co., INC. ~ (202) 789-0096 — WASHINGTON, D.C. 20002

729082

RULE 29.6 STATEMENT

Pursuant to Rule 29.6, there is no change to

the corporate disclosure statement previously filed

by the Utility Water Act Group.

1.

Nothing

ll

TABLE OF CONTENTS

in the Words “Best

Technology Available for Minimizing

Adverse

Environmental

Impact”

Prohibits Comparing Costs to Benefits

A.

Riverkeeper’ss Argument That

the

Statutory Objective

Precludes Comparison of Costs

and Benefits Is Unsupported

and Internally Inconsistent........

1.

to

Riverkeeper’s Argument

Rests on an

Interpretation of

“Adverse Environmental

Impact” That It Neither

Reveals Nor Supports ......

Riverkeeper Relies on a

False Premise About the

Type of Cost-Benefit

Comparison EPA Applied

ill

3. Riverkeeper Concedes

that §316(b) Provides

Flexibility Except for

Comparing Costs _ to

EE ee 8

B. The Northeast States

Erroneously Interpret

“linimize Adverse

Environmental Impact” to Mean

“Minimize Impingement

Mortality and Entrainment’ ............... 10

C. Respondents and Amici Fail to

Show That Cost-Benefit

Comparisons Are Unnecessary

Oe i titirincrestnncensnnnipinniniescecsiens 13

1. Cost-benefit Comparisons

Are Not Unnecessary ................ 13

2. Cost-benefit Comparisons

Are Not Impractical .................. 17

Il. The Structure and History of the

Clean Water Act Do Not Support

IE II iiisiccccidaiianienssabahionishensteniinaniindes 20

iv

The Opinions of Congressional

Staff Who Neither Vote on a

Bill Nor Express their Views in

a Forum Where Their

Opponents Can Answer Them,

Should Not Be Given Weight in

Determining What Congress

Meant by Statutory Language ........

Nothing in the Structure of

§316 Supports Respondents’

I icciiccistipintinciciitnichedioancons

Nothing in the _ Legislative

History of §§301, 304, 306, or

316 Supports Respondents’

Interpretation of the Act..................

® The Legislative History is

Largely Silent on the

Factors EPA May

Consider Under §Jio(b)........

2. The Legislative History

Shows §316(b) Was an

| EERE TE a

3. The Legislative

Compromise on

Technology-Based

Regulation Does Not

Support Riverkeeper’s

BRRCOT SOCIO occ ccceccccccccccceess

v

III. For Over Thirty Years, EPA and the

Courts Have Interpreted §316(b) to

Allow Cost-Benefit Balancing ...................00+: 30

A. EPA Has Never Interpreted

§316(b) to Prohibit Cost-Benefit

PN cccccinsinicssitdininiinpectnitiiiiitiiaiaias isang 31

B. State and Federal Regulators

Weigh Costs and Benefits Using

the “Wholly Disproportionate”

Test, Which the First Circuit

Upheld im Seacoant .......cccccccscosccsccccscess 32

CPV ESET secscescatcoscnesnnnessennssnbsosssiquinaseiaeiiaidamaien 35

iii

TABLE OF CITED AUTHORITIES

FEDERAL CASES

Exxon Mobil Corp. v. Allapattah Services,

545 U.S. 546 (2008 ........ccecccccecesceeeeeeeees

Nipper v. Smith, 39 F.3d 1494 (11th Cir.

1994), citing Massachusetts v. Morash,

RE, I I i srnetcineeimanntonnscses

Rivera v. Commissioner, Docket No. 41343-

85, 89 T.C. 343 (Tax Court 1987)..........

Riverkeeper, Inc. v. EPA, 358 F.3d 174

nT I assialinsinnniiucnanpbuanssdpenaincesecce

Riverkeeper, Inc. v. EPA, 475 F.3d 83

(2d Cir. 2007), cert. granted, in part,

128 S. Ct. 1867 (U.S. 2008)

St EE satscicinniensainsiiaeniicdtwsnrentesoeses

Seacoast Anti-Pollution League v. Costle,

597 F.2d 306 (1st Cir. 1979).................

STATE CASES

In the Matter of Entergy Nuclear Indian

Point 2 & 3, Interim Decision of the

Assistant Commissioner, DEC No.

3-5522-00011/00004 (August 13, 2008)

ha

Voices of the Wetlands v. Cal. State Water

Res. Control Bd., 69 Cal. Rptr. 3d 487

(Cal. App. 6th Dist. 2007), review

granted, depublished by Voices of the

Wetlands v. Cal. State Water Res.

Control Bd., 74 Cal. Rptr. 3d 453,

180 P.3d 223 (Cal. 2008) ..............cccceeeeees

STATUTES

a iecaneelioaaiiel

as

I TI rsieseisticatieesiceridocennrnsonsacinnieses

i

ET RAL T TL

OB I iii evn teecsce cones nics

FEDERAL REGULATIONS

40 C.F.R. § 125.83 .......c.ccc.ccccscecesescscecescecesecees

STATE STATUTES

Maryland Environmental Regulations

§ 26.08.03.05(D)(2) ...-..cccccccscscececeseceseeseees

v

OTHER AUTHORITIES

41 Fed. Reg. 17,387, 17,388 (April 26, 1976).....31, 32

A Legislative History of the Water Pollution

Control Act Amendments of 1972

(93d Cong., lst Sess.) (1973) .................... passim

California Independent System Operator,

Mitigation of Reliance on Old Thermal

Generation Including Those Using

Once-Thru Cooling Systems Study

Plan, Final Draft Version 5.0 (January

2, 2008), http://www.caiso.com/1f52/

EE a 16

DOE, “Electricity Reliability Impacts of a

Mandatory Cooling Tower Rule for

Existing Steam Generating Units”

(Oct. 2008),

http://www.oe.energy.gov/Documentsand

Media/Cooling Tower_Report.pdf .................... 17

EPA Office of Science and Technology,

Considerations Affecting Steam Power

Plant Site Selection 46 (Dec. 1968)................... 26

1

ARGUMENT

This is the reply of petitioner Utility Water

Act Group (UWAG) to the briefs of Riverkeeper, Inc.

et al. and the Northeast States Connecticut,

Delaware, Massachusetts, New Jersey, New York,

and Rhode Island, as well as to the amicus briefs

supporting them.!

As shown in UWAG’s opening brief, nothing in

the language, structure, or legislative history of

§316(b) limits the types of environmental impacts

EPA may consider or the tools it may use to decide

which impacts are “adverse.” UWAG 28, 32-34.

Moreover, nothing prohibits EPA from comparing a

wide range of “costs” and “benefits” to decide when

“adverse environmental impacts” have _ been

“minimized.” Jd. Nor does the statute or its history

forbid EPA to authorize alternative §316(b)

requirements based on _ site-specific costs and

benefits. Td. 27, 42-57. Therefore, EPA’s

interpretation of §316(b) to authorize comparing

costs and benefits when selecting “best technology

available for minimizing adverse environmental

1 We will refer to the briefs of parties and amici as

Solicitor General (SG); Entergy Corp. et al. (Entergy);

Riverkeeper, Inc. et al. (Riverkeeper); Connecticut et al.

(NEStates); National Wildlife Federation et al. (NWF); State of

Illinois et al. (State Amici); Voices of the Wetlands et al. (VoW);

Environmental Law Professors (Envtl. Law Professors):

Commercial Fishermen of America et al. (CFoA); and Ackerman

et al. (Ackerman).

2

impact” at both the national and local levels was

reasonable and entitled to deference.

Respondents and their amici do not refute

these arguments. In fact, neither respondent even

attempts to answer UWAG’s arguments in defense of

EPA’s rule authorizing alternative standards when

costs at a site are significantly greater than benefits

(UWAG 42-57). Instead, Riverkeeper suggests that

this issue concerns EPA’s general authority to set

site-specific requirements, as opposed to categorical

industrywide ones, and urges the Court to ignore it.

Riverkeeper 32 n.17.

Although Riverkeeper is correct that EPA’s

general authority to allow site-specific §316(b)

requirements is not at issue,” its authority to allow

site-specific requirements based on _ cost-benefit

analysis clearly is. The petitions for certiorari raised

this issue,? and it falls squarely within the cost-

benefit issue on which the Court granted certiorari.

2 The Second Circuit has twice concluded that §316(b)

authorizes site-specific requirements. Riverkeeper, Inc. v. EPA,

475 F.3d 83, 111 n.22 (2d Cir. 2007), cert. granted, in part, 128

S. Ct. 1867 (U.S. 2008) (No. 07-588); Riverkeeper, Inc. v. EPA,

358 F.3d 174, 193 (2d Cir. 2004); U\WAG 43-44. Nevertheless,

the Second Circuit set aside the Phase II provision authorizing

alternative limits based on costs and benefits because it

concluded, as it had for the national standards, that comparing

costs and benefits is not allowed.

3 UWAG Petition for Writ of Certiorari 9-10 (Nov. 2,

2007); UWAG Reply 10 (Mar. 18, 2008); PSEG Petition for Writ

of Certiorari 9-10 (Nov. 2, 2007).

3

See Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir.

2007), cert. granted, in part, 128 S. Ct. 1867 (U.S.

2008) (No. 07-588). Riverkeeper’s assertion to the

contrary is an attempt to avoid arguments for which

it has no rebuttal.

I. Nothing in the Words “Best Technology

Available for Minimizing Adverse

Environmental Impact” Prohibits

Comparing Costs to Benefits

Both Respondents concede that EPA has

authority to consider cost in some fashion, even

though §316(b) does not mention cost. Riverkeeper

26-27; NEStates 21. And neither disputes that EPA

may consider an intake technology’s “benefits,” as

long as they reduce impacts to individual organisms

and no attempt is made to “vaiue” the organisms in

terms of their contribution to the economy or the

health or productivity of a waterbody. See

Riverkeeper 26-27; NEStates 35-36.

Nevertheless, Respondents argue that the

“plain language” of §316(b) forbids any economic

evaluation of environmental impacts and any

comparison of costs and benefits for purposes of

selecting “best technology available for minimizing

adverse environmental impact.” They argue that

“best” and “available” must be interpreted in light of

“minimizing adverse environmental impact.”4 They

4 They also argue that only their preferred dictionary

definitions of “best,” “available,” and “minimize” are reasonable.

As Enteryy’s reply at Section I shows, they are wrong.

4

argue that the result Congress intended by this

objective is clear from the words. Riverkeeper 23-24;

NEStates 19-20. Yet even they do not agree on what

“minimizing adverse environmental impact” means,

and neither explains why “plain language” compels

its preferred interpretation. Nor do respondents

provide evidence that Congress intended to prohibit

the broad, flexible cost-benefit comparisons EPA

performed and authorized here.

The Northeast States believe “minimizing

adverse environmental impact” means minimizing

the killing and injuring of individual fish and other

aquatic life as much as technologically possible.

NEStates 15. They do not mention, nor do they

apparently believe, that §316(b) allows EPA to strike

a balance, even in noneconomic terms, between

reducing risks to aquatic organisms and increasing

other environmental impacts.

In contrast, Riverkeeper never reveals what it

thinks “adverse environmental impact” means,

although it concedes at 28-29 that the term is broad

enough to encompass nonaquatic environmental

effects. Instead, Riverkeeper simply asserts that

cost-benefit analysis cannot be used to distinguish

“adverse environmental impact” from “permissible

impact.” See Riverkeeper 26. While agreeing with

the Northeast States that “costs” and “benefits” can

never be compared to determine when “adverse

environmental impact” has been = minimized,

Riverkeeper carves out sO many exceptions as to

virtually negate the argument.

5

As UWAG has demonstrated, nothing in the

words Congress chose compels the conclusion that

Congress intended a single-minded focus on reducing

impingement and entrainment at all costs. UWAG

33-34. Moreover, nothing in §316(b) limits EPA’s

discretion to decide how to measure and weigh costs

and benefits in deciding which technology is “best

available” for “minimizing adverse environmental

impact.” EPA’s interpretation of §316(b) is

consistent with a natural reading of the words

Congress used, as their dictionary definitions show.

Id.

Respondents make no effort to show why

“adverse environmental impact” means only what

they say it does or why costs and benefits cannot be

compared in determining which available technology

is best. Rather, they rely on unsupported, and often

inconsistent, assertions.

A. Riverkeeper’s Argument That the

Statutory Objective Precludes

Comparison of Costs and Benefits

Is Unsupported and _ Internally

Inconsistent

1. Riverkeeper’s Argument

Rests on an Interpretation of

“Adverse Environmental

Impact” That It Neither

Reveals Nor Supports

Nowhere does Riverkeeper parse the phrase

“adverse environmental! impact” or offer a plausible

explanation why that phrase, by its terms, precludes

6

cost-benefit comparisons. Instead, Riverkeeper

avoids the issue, suggesting that the Court should

not construe “adverse environmental impact” at all.

Riverkeeper argues that “[t]he full range of ‘adverse

environmental impacts’ EPA can consider and the

weight each is assigned are not before the Court.”

Riverkeeper 29 n.14.

This argument is internally inconsistent,

because Riverkeeper and the States agree that the

object of “minimizing adverse environmental impact”

is relevant to interpreting other words like “best,”

“available,” and “minimize.” And it is absurd,

because a court must construe statutory provisions

as a whole, not piecemeal. Nipper v. Smith, 39 F.3d

1494, 1515 (11 Cir. 1994), citing Massachusetts v.

Morash, 490 U.S. 107 (1989).

2. Riverkeeper Relies on a False

Premise About the Type of

Cost-Benefit Comparison EPA

Applied

Riverkeeper argues that any comparison of

costs and benefits is inconsistent with the objective

of “minimizing adverse environmental impact,”

because “cost-benefit analysis” is based on “the policy

premise that the cost of reduction should not he

greater than the corresponding benefits.”

Riverkeeper 26 (emphasis added). Riverkeeper

assumes that the broad, flexible cost-benefit

comparison EPA made in setting the national

standards, and authorized permit writers to make in

setting alternate standards, is the mathematically

7

precise, purely economic cost-benefit equation that

Riverkeeper describes. Many of the arguments made

by respondents’ supporters have the same

misperception about what EPA did.5

EPA’s comparison of costs and benefits at the

national level involved both qualitative and

quantitative balancing of a wide range of

environmental, energy, and economic costs against

environmental, economic, and_ social benefits.

UWAG 51-57; SG 6-7. Rather than requiring that

benefits exceed costs, EPA issued a final rule for

which the quantifiable economic costs were almost

five times the quantifiable economic benefits.

UWAG 21; Pet.App. 526a. Similarly, for site-specific

standards, the Phase II rule allows alternative

standards only where costs are “significantly”

greater than benefits. Clearly, EPA did not use

“benefits exceed costs” as a decision rule.

Even though EPA never relies on a formal

cost-benefit analysis or establishes rigid cost-benefit

criteria for decisions, even though EPA always tilts

its cost-benefit comparisons in the environment’s

favor, still Riverkeeper and the Northeast States

argue that §316(b) forbids any comparison of costs to

benefits. Riverkeeper 27-29.

5 See, e.g., NWF 29 (arguing the rule would “result in a

degree of protection no more stringent than can be proven to

lead to a quantifiable benefit”); Ackerman 12 (regulators can

use CBA to select the point of marginal equivalence between

social costs and benefits).

8

3. Riverkeeper Concedes that

§316(b) Provides Flexibility

Except for Comparing Costs

to Benefits

Riverkeeper’s position conflicts with its own

concession that the phrase “adverse environmental

impact” gives EPA room to decide which impacts are

adverse and when adverse impact has. been

minimized. For example, Riverkeeper concedes that

§316(b) is flexible (ambiguous) enough to authorize

EPA to:

e Consider energy efficiency and

environmental impacts other than

impingement and entrainment mortality

(Riverkeeper 28-29);

e Conclude that some level of impact is de

minimis or without meaningful

environmental consequence and does not

warrant further reduction (id. 29-30);

e Reject technologies for which costs are

“wholly disproportionate” to “insubstantial”

environmental “benefits” (id. 45);

e Consider site-specific factors, such as type

of waterbody and size of the cooling water

withdrawal relative to instream flow (id.

32-33).

Having conceded that the supposedly plain

language of §316(b) allows all this discretion,

Riverkeeper still argues that the same _ plain

9

language forbids using economic tools for measuring

or comparing costs (including adverse environmental

impacts) to benefits (Gncluding beneficial

environmental impacts). But if EPA is allowed to

consider these factors, courts consistently have said,

it is up to the Agency to decide which tools to use to

consider them. See Entergy 40-41; Entergy Reply

§1.A.

In essence, Riverkeeper is saying that EPA

may do everything in cost-benefit analysis except

assign a dollar value to environmental costs and

benefits and use it to facilitate an “apples-to-apples”

comparison of all costs and benefits. For example,

EPA apparently may not decide that some

waterbodies need no entrainment reduction because

the number of fish harmed is insignificant in broader

ecological or economic terms and the cost of saving

those fish is high. Similarly, EPA may not use an

economic analysis to decide that the impact of

increased air pollution “outweighs” the fish saved,

even though that would mean EPA could not

“minimize adverse environmental impact.”

The fine distinctions Riverkeeper draws are,

we submit, irrational. There is no textual basis for

presuming that Congress intended them.

10

B. The Northeast States Erroneously

Interpret “Minimize Adverse

Environmental Impact” to Mean

“Minimize Impingement Mortality

and Entrainment”

The Northeast States at 15-16 assert that

“minimize adverse environmental impact” is a hard-

and-fast mandate to “promulgate a national rule that

minimizes the killing and injuring of fish and other

aquatic life” subject only to the limits of what is

technologically achievable. Elsewhere, though, the

Northeast States appear to concede that §316(b) does

not have to focus on individual organisms. See

NEStates 28-29 (§316(b) requires minimizing impact

on “aquatic ecosystem”).

Aside from this unresolved inconsistency, the

problem with the Northeast States’ argument is that

it is little more than bare assertion. An attempt to

tease out some overarching rationale, how>ver,

yields the following:

(1) Aquatic organisms may be harmed by

impingement and entrainment (id. 3-4);

(2) The word “impact” can be defined as “the

act of impinging or striking” and “a concentrated

force producing change” (id. 20); therefore,

(3) Congress’s use of “impact” demonstrates its

“understanding of the nature of the environmental

injuries associated with intake structures” (id.).

11

From the premise that Congress understood

that intake structures cause impingement and

entrainment, the Northeast States leap to several

other unwarranted conclusions, namely that

Congress intended to focus only on individual

aquatic organism losses, as opposed to other

environmental impacts; to classify every such loss to

an intake structure, regardless of the nature of the

organism,® as an “adverse environmental impact”;

and to require power plants to reduce individual

losses as much as technologically possible. This, the

Northeast States contend at 31, is the “certain”

impact that Congress intended to regulate without

considering cost. But that is not what §316(b) says,

6 Amici NWF agree that the harm done by nonnative

species is often substantial (NWF 20) but argue that invasive

and harmful species nevertheless should be protected because

of the “interconnectedness of life” (id. 5). But there is no

evidence Congress intended to classify impacts to invasive or

nuisance species as “adverse environmental impact.” UWAG

10.

UWAG is not arguing that fish are not valuable just

because they are not sought by commercial or recreational

fishermen. Nor are we arguing that §316(b) is a regulatory tool

for eradicating nuisance species. Still, it is a fact that state and

federal wildlife managers routinely make decisions about what

species are valuable and should be protected and what species

are harmful. It makes no sense to require NPDES permit

writers to save harmful fish when the wildlife agencies are

tasked with suppressing them. Cost-benefit analysis can help

avoid this, as EPA recognized when it authorized alternative

standards based on site-specific cost-benefit comparisons.

Response to Comments (Author Version) (“RTC”) 315.

12

nor is there any basis for concluding it is what

Congress meant.

Had Congress intended to “minimize

impingement and entrainment” or even “minimize

adverse impacts to aquatic organisms,” it would have

said so. Instead, Congress focused broadly on

“minimizing adverse environmental impact” and

gave EPA discretion to decide which environmental

impacts to consider, which tools to use for evaluating

them, and which technology best minimizes “adverse

environmental impact” overall. UWAG 12.

Exercising such discretion involves the sort of “risk

assessment” in which the Northeast States at 30-31

agree cost-benefit analysis can play a role.

We are not suggesting that killing or injuring

aquatic organisms is not “adverse” or cannot be

regulated — only that reducing harm to all individual

organisms as much as possible is not necessarily the

measure of when “adverse environmental impact” is

minimized. EPA chose to focus on reducing

impingement mortality and entrainment, but it could

have chosen other ways to measure “adverse

environmental impact.” Indeed, it could have

decided to measure adverse environmental impact

(for example) by the dollar value of damage to the

aquatic ecosystem or other parts of the environment.

By focusing on impingement mortality § and

entrainment, the Agency did not forfeit its right to

use other measures of adverseness. UWAG 33.

13

C. Respondents and Amici Fail to

Show That Cost-Benefit

Comparisons Are Unnecessary or

Impractical

1. Cost-benefit Comparisons Are

Not Unnecessary

To bolster their interpretation, Riverkeeper

and its supporters struggle to show how EPA can

have the advantages of cost-benefit analysis without

using it. Riverkeeper 28-33. A power plant need not

spend millions of dollars to save a single organism,

Riverkeeper says, because EPA could specify some

“de minimis level” or limit harm to a prescribed

number of fish. Riverkeeper 29-31. Also, EPA can

set requirements for “less broad categories” or set

different standards for different locations. Jd. 32-33.

Likewise, EPA need not impose a “one-size-fits-all

rule,” Riverkeeper says, because §316(b) authorizes

requirements expressed as a range. And plants that

impinge or entrain few fish (or none) will be able to

meet the standards without expensive controls. Id.

30-31.

In suggesting that EPA could simply designate

some de minimis level of organisms that each facility

can affect, Riverkeeper ignores reality. As EPA has

recognized repeatedly, the type, lifestage, and

number of fish affected by a power plant are highly

site-specific, as are the health and stability of their

aquatic ecosystem. See UWAG 7. Unlike pollutant

discharges, the number of organisms affected and

the potential for “adverse environmental impact”

14

from such effects are not easy to predict by industry

or facility type or even from withdrawal rate. UWAG

8-10. That is why EPA expressed the national

performance standards as ranges of percentage

reductions of impingement mortality and

entrainment (regardless of amount). Pet.App. 234a.

That is also why EPA authorized alternative

standards based on cost-benefit balancing. Pet.App.

250a. Without them, even plants that impinge or

entrain few organisms will not, as Riverkeeper

claims at 30, be able to meet the standards without

expensive controls.

Nor could EPA have avoided cost-benefit

comparisons by expressing performance standards as

ranges, distinguishing among different locations, or

subcategorizing, as the Phase II rule’s use of all

three techniques demonstrates. UWAG 22, 23, 42.

EPA had to set the performance standards as ranges

to accommodate the uncertainties and variability in

technologies. Pet.App. 228a. That it did so provided

no relief for facilities that cause impacts less severe

than those EPA anticipated. Similarly, EPA did not

apply entrainment standards to facilities located on

waterbody types that present less. risk of

entrainment. Pet.App. 227a, 229a-234a. But that in

no way accounts for the variability in impacts from

site-to-site for those facilities to which the standards

do apply. And _ cos*-benefit comparisons are

important for subcategorization, as evidenced by

EPA’s decision to treat facilities with a low capacity

utilization rate as a separate subcategory based both

on its risk assessment and its judgment that

15

entrainment contre for these facilities is not

“economically practicable” (Pet.App. 233a).

Riverkeeper concedes at 28-29 that EPA may

consider other environmental and energy trade-offs

but never explains why EPA cannot use cost-benefit

comparisons to do so. Riverkeeper’s preferred

technology -— closed-cycle cooling - reduces the

impact on individual fish but may or may not benefit

the aquatic resource as a whole. See, e.g., UWAG

9-10. Moreover, closed-cycle cooling increases

environmental impacts like air pollution, habitat

destruction, and noise and exacts an energy penalty.

UWAG 10-11, 56; Entergy 49-51. As we have shown,

cost-benefit comparison is an important tool for

deciding which trade-offs are consistent with

“minimizing adverse environmental impact.” Id.

Riverkeeper and its supporters minimize the

need for a cost-benefit mechanism to make rational

decisions about the relative merits of these trade-

offs, suggesting they are unlikely to be important or

that they can be managed in other ways. For

example, State Amici argue at 15-16 that EPA can

protect Florida manatees, which depend on heated

effluent for habitat, by granting a §316(a) variance

from discharge limits for heat. But once a cooling

tower is installed to reduce intake effects under

§316(b), it will necessarily reduce heated effluent, to

the manatees’ detriment.

Likewise, State Amici at 16 think EPA does

not need cost-benefit analysis to account for

increased water consumption by cooling towers,

16

because closed-cycle cooling systems “withdraw far

less water.” Here, State Amici confuse “withdrawal”

with “consumptive use.” Once-through cooling

“withdraws” more water but returns most of it to the

waterbody; cooling towers evaporate more of the

water they withdraw. UWAG 6. As Marylana’s

Department of Natural Resources noted in its

comments on the Phase II rule, such “evaporative

losses can have a significant impact, ... in rivers and

lakes.” RTC 3087.

Other amici argue cost-benefit analysis is

unnecessary to account for adverse energy impacts of

closed-cycle cooling, because such impacts are

unlikely. For example, VoW at 19 claims that

California already has determined once-through

cooling systems “can be converted to alternative

cooling technologies without major economic

dislocation or _ disruption of the _ electricity

transmission system.” VoW’s argument is both

wrong and contradicted by a less parochial report

recently issued by the Department of Energy

(“DOE”). California has not made any final

determination about close-cycle cooling’s impacts;

indeed, it is still awaiting an evaluation of how

retrofitting affects reliability.? More important,

DOE’s examination of the energy impacts of

7 California Independent System Operator, Mitigation

of Reliance on Old Thermal Generation Including Those Using

Once-Thru Cooling Systems Study Plan, Final Draft Version 5.0

(January 2, 2008), http://www.caiso.com/1f52/

1f529c671a380.pdf.

17

mandatory retrofitting concludes the adverse

impacts to energy reliability nationally would be

substantial. See DOE, “Electricity Reliability

Impacts of a Mandatory Cooling Tower Rule for

Existing Steam Generating Units” (Oct. 2008),

http://www.oe.energy.gov/DocumentsandMedia/Cooli

ng_Tower_Report.pdf.

VoW also argues at 16 that two repowering

California plants show that retrofitting is feasible

and painless. But they ignore the fact that

repowering a steam electric plant means replacing

all or most of the generating unit. It is costly, far

from painless, and infeasible for many facilities that

have years of useful life remaining or that, although

needed when demand is high, do not operate enough

to justify retrofitting.

2. Cost-benefit Comparisons Are

Not Impractical

Besides arguing that cost-benefit comparisons

are unnecessary, Riverkeeper and others argue that

evaluating and quantifying the benefits of reducing

impingement mortality and entrainment is too

uncertain, complex, and burdensome a task for

Congress to have authorized under §316(b).

Riverkeeper 52; State Amici 17-18; CFoA 13-24. In

support, they allege a variety of defects either in

EPA’s national cost-benefit assessment or in cost-

benefit comparison methods in general. None of

those arguments has merit.

For example, Riverkeeper at 52 and some of

its supporters allege (incorrectly) that EPA’s national

18

analysis assigned a value only to fish that could be

caught and sold commercially and excluded forage

species. In fact, EPA’s analysis estimated the direct

use value of all impingement and entrainment

impacts, including impacts to recreational and forage

species. Pet.App. 482a-485a. The Agency addressed

forage species by using a “trophic-transfer model”

based on the conservative assumption that all forage

organisms are eaten by commercial and recreational

predators. Pet.App. 483a.

EPA had less success assigning “non-use”

values to organisms that would more likely reach age

1 by virtue of the cule or its alternatives but would

never be caught recreationally or commercially. This

difficulty was predictable, given the amount of site-

specific information needed to make such estimates

(which gauge the willingness of those who will never

use the resource to pay for protecting or improving

it). See, e.g., Pet.App. 343a, 484a-485a. In any case,

that EPA encountered such difficulties at the

national level is not evidence that non-use values

cannot be accounted for, quantitatively = or

qualitatively, at specific sites.

Riverkeeper at 34 and its amici also argue

that understanding the ecological significance of

impingement and entrainment is so complex and

uncertain a task that Congress must have meant to

prohibit it. In support, they cite EPA’s rationale for

deciding against a more “population-based” approach

to national § 316(b) performance standards. See, e.g.,

Ackerman 34-35; NWF 25-27. But EPA’s decision to

pursue a more administratively streamlined and

19

conservative approach at the national level is not

evidence that making such assessments at the site-

specific leve] is infeasible, nor have Respondents or

their amici shown that it is.®

State Amici at 17-22 also argue that §316(b)

should not be interpreted to allow site-specific

balancing of costs and benefits because it would be

administratively burdensome. But Congress has

imposed more onerous “burdens” related to States’

resource management responsibilities (like

developing and implementing individualized water

quality standards). And Congress specifically

considered the burden of making case-by-case

§ 316(a) detorminations and concluded they were not

unmanageable. 1 A Legislative History of the Water

Pollution Control Act Amendments of 1972, 93d

Cong., 1st Sess. (hereinafter Leg. Hist.), 263 (1973).

So it is hard to see why Congress would have

thought this type of review too burdensome.

Also, State Amici overlook the fact that EPA

anticipated the “burdensomeness” objection and

addressed it in the rule. The Phase II Rule requires

a permittee seeking an alternate standard both to

® Amici CFoA at 19-21 oppose the site-specific cost-

benefit provision because they say it allows permit writers to

consider only the local benefits of achieving the national

standards, thereby preventing full consideration of the impact

on migratory or regional fish stocks. Its argument misreads the

rule, which tells the permittee and regulator to consider all

benefits (quantitative or qualitative, local or otherwise) of the

facility’s compliance with the national standards.

20

prepare a cost-benefit analysis that identifies

significant sources of uncertainty and to convene, at

the state’s request, an independent peer-review

panel to review the analysis. Pet.App. 579a.

II. The Structure and History of the Clean

Water Act Do Not Support Respondents’

Claims

Even though they argue that the consequence

of §316(b)’s reference to §§301 and 306 is only

procedural (NEStates 20; Riverkeeper 37 n.19),

Respondents base much of their argument on §§301,

304, and 306 and their legislative history.

Respondents contend that thes. technology-based

requirements for pollutant discharges reveal

Congress’s intent to allow cost-benefit comparisons

only when explicitly authorized. As Entergy showed

in its initial brief at 38-42 and reply at §II.A,

Respondents are wrong. Indeed, the evidence,

including the documents written by Senate staff,

indicates that Congress intended to give EPA

discretion to weigh costs and benefits.

A. The Opinions of Congressional

Staff Who Neither Vote on a Bill

Nor Express their Views in a Forum

Where Their Opponents Can

Answer Them, Should Not Be Given

Weight in Determining What

Congress Meant by § Statutory

Language

Statutory construction starts with the words

of the statute because majorities in both houses of

21

the legislature have agreed on those words and voted

for them. Conference and committee reports have

weight because they are agreed to by legislators who

are most likely to have considered the drafts of the

bills and be familiar with the arguments that

produced the final language. Debates have some

weight because they provide an opportunity to

counter ambiguities and self-serving interpretations.

Documents written by Congressional staff

have none of these indicia of reliability. Staff do not

vote on bills. Staff do not participate in the recorded

debates on bills. Staff may help write Committee and

conference reports, but the value of those reports lies

in the fact that they were adopted by the legislators.

The views of staff that are not adopted by Senators

or Representatives are not a guide to the legislators’

opinions of the meaning of a bill and the reasons

they voted for it. See Rivera v. Commissioner,

Docket No. 41343-85, 89 T.C. 343, 349 (Tax Court

1987) (General Explanation of a statute “does not

technically rise to the level of legislative history

because it was authored by a congressional staff and

not by Congress”).

The notes and memoranda of Senate staff that

Riverkeeper has produced from the National

Archives are in this’ second category. These

documents are not included in the compendium of

legislative history that Senator Muskie requested be

printed and which was to include “important

explanatory materials.” 1 Leg. Hist. til. As the Court

has recognized, considering this sort of material is

akin to “looking over a crowd and picking out your

22

friends,” which invites “strategic manipulation” by

“unelected _ staffers.” Exxon Mobil Corp. ov.

Allapattah Servs., 545 U.S. 546, 568 (2005).

Nevertheless, should this Court choose to

examine those documents, it will find nothing to

support Respondents’ interpretation of the statute,

as the analysis below shows.

B. Nothing in the Structure of §316

Supports Respondents’

Interpretation

Accepting, for argument’s sake, Respondents’

theory that Congress rejected cost-benefit balancing

under §§301 and 306, it does not follow that

Congress felt the same way about §316(b). Section

316(b), as even the Second Circuit agreed (475 F.3d

83, 91), is different from other technology-based

provisions in important ways. It regulates intakes,

not discharges, under a standard that does not

become more stringent with time and does not limit

the factors EPA may consider and balance. All these

distinctions weigh against making the _ simple-

minded assumption that, by using the word

“available” instead of “practicable,” Congress

intended to prohibit cost-benefit comparisons.

Nevertheless, Respondents argue that §316,

read as a whole, reveals Congress’s intent to split the

difference between “technology-based” and

“biologically based” requirements by _ subjecting

intake structures to the first and thermal discharges

to the second. NEStates at 41-42; Riverkeeper 13-14.

As evidence, they cite how §316(b) differs from

23

§316(a), which provides a water quality-based

variance from technology-based effluent limitations

for heated water. But their finely wrought theory is

not plausible.

Although there is agreement that §316(a) is a

biologically-based variance, Congress did not, as the

Northeast States claim, regulate thermal! discharges

based solely on biology and excluding costs and

benefits. Rather, Congress authorized EPA first to

establish technology-based controls for thermal

discharges under §§301 and 306,° then provided a

water quality-based variance to ensure that the cost

of further controls, even where affordable, would not

be imposed if not justified by the water quality

benefits. Biology outweighs technology. This is a

cost-benefit approach, as even Riverkeeper seems to

concede. Riverkeeper at 49.

Nor does it follow that §316(b), simply by

requiring EPA to consider technology, shows that

Congress intended to prohibit considering the size or

value of biological or other environmental impacts.

To the contrary, §316(b) requires EPA to consider

“environmental impact.” Having imposed no

technology-based requirements for intake structures

in §§301 and 306, it is perfectly understandable that

Congress combined evaluating technology with

evaluating environmental impact in a_ single

provision. No §316(a)-style variance was needed,

* Clean Water Act §§301, 306, 33 U.S.C. §§1311, 1316.

“Pollutant” ts defined in 33 U.S.C. §3162(6) to include heat.

24

because consideration of environmental benefits is

built into §316(b).

The main difference between Congress’s

approach to thermal discharges and its approach to

intake structures was its choice of different biological

criteria. For thermal discharges, Congress set a

more specific biological criterion for deciding when

costs are not justified by benefits. For intake

structures it established a more open-ended

criterion, which it trusted EPA to interpret.

C. Nothing in the Legislative History

of §§301, 304, 306, or 316 Supports

Respondents’ Interpretation of the

Act

Both Riverkeeper at 47 and the Northeast

States at 38-39 say that §316(b)’s legislative history

is not important in light of the “plain language” of

the statute. Nevertheless, both make a considerable

effort to show that the legislative history of the

statute, particularly of §316, reveals Congress’s

intent to prohibit comparisons of costs and benefits

under §316(b). Riverkeeper 33-41; NEStates 39-41.

None of their arguments is persuasive.

1. The Legislative History is

Largely Silent on the Factors

EPA May Consider Under

§316(b)

None of the sources Riverkeeper cites contains

instructions about the factors Congress intended

EPA to consider under §316(b) - a fact that

25

Riverkeeper ignores. As Entergy showed in its

initial brief at 7, the only legislative statement with

a substantive discussion of Congress’s intent was by

Representative Clausen, a Conferee. Mr. Clausen

explained that Congress intended “best technology

available” to mean “the best technology available

commercially at an economically practicable cost.”

1 Leg. Hist. 264.

Riverkeeper at 47 urges the Court to disregard

this statement, arguing that it adds language to the

statute. But it simply explains what “best available”

means, using the word “practicable” (which the

Northeast States agree at 21 is a synonym for

“available”).

2. The Legislative History

Shows §316(b) Was an

Afterthought

Discounting Representative Clausen’s

statement, Riverkeeper at 47 focuses on the history

surrounding the “intense and protracted debate” on

costs and benefits for pollutant discharges. From the

results of that debate on discharge requirements,

Riverkeeper concludes that Congress intended to

preclude any comparison of costs and benefits for

cooling water intake structures.

Riverkeeper reaches this conclusion despite

the fact that §316(b) was hardly discussed, let alone

“debated,” by either House. That is because §316(b)

was an afterthought, first appearing in the

Conference Report. When the Senate considered the

Conference Report, §316(b) was not even mentioned.

26

Senator Muskie’s exhibit describing the Conference

Report describes only §§316(a) and (c). 1 Leg. Hist.

175. On the House side, the only substantive

discussion was the Clausen statement.

Riverkeeper disagrees that §316(b) was an

afterthought, citing reports from the 1960s and early

‘70s that it claims show Congress’s awareness of

intake structures. Riverkeeper 5-6, 13-14 n.8.

Congress may have known that intake structures

have environmental impacts. But nothing in the

documents Riverkeeper proffers suggests that

Congress was concerned about the effect of intake

structures on every aquatic organism of whatever

type. Indeed, to the extent those documents bear on

intake structures at all, they suggest that the

commentors thought about the issue from a broader

environmental and resource management

standpoint. See, e.g., EPA Office of Science and

Technology, Considerations Affecting Steam Power

Plant Site Selection 46 (Dec. 1968) (describing

adverse effects of closed-cycle cooling and resource

managers’ consideration of intake effects).

Moreover, nothing in the legislative history

suggests that, in adopting §316(b), Congress thought

carefully about the level of control or the factors EPA

could consider in setting the standards.

27

3. The Legislative Compromise

on Technology-Based

Regulation Does Not Support

Riverkeeper’s Interpretation

Riverkeeper argues that the resolution of the

difference between the Senate and House over how

technology-based effluent limitations should be set,

especially for thermal discharges, shows that

Congress intended to prohibit comparisons of costs

and benefits under §316(b). But that is not what

either the legislative history or Riverkeeper’s

collection of unpublished documents shows.

a. The Legislative History

_ Senate Bill 2770 focused on what technology

could achieve and whether industry (as a whole, for

best practicable technology (BPT), and at the plant

level, for best available technology (BAT)) could

afford it. 2 Leg. Hist. 1608-10, 1614-16. In neither

case did it include a provision for considering energy

or environmental impacts. For new sources, the

Senate bill did not require EPA to consider either

costs or energy and environmental impacts in setting

new source performance’ standards (NSPS).

However, it did authorize new sources to petition for

relief from the standards when the economic and

social costs of the standard bore no reasonable

relationship to the social and economic benefits. Id.

1626.

House Bill 11896 provided for a full-scale,

front-end analysis of costs and benefits for which the

government would be responsible. i Leg. Hist. 981.

28

For BPT, H.R. 11896 required EPA to set effluent

guidelines only after comparing costs to economic,

social, and environmental benefits. Jd. 980-81. For

BAT, the bill required the National Academies of

Sciences and Engineering to evaluate’ the

technological feasibility, costs, and benefits of

eliminating pollutant discharges. Id. 1042. It would

have required EPA to develop BAT guidelines

requiring elimination of pollutant discharges by

1981. But those limits would apply only if Congress,

after reviewing the study, voted to make them

applicable. Jd. 1042-43. For thermal discharges, the

House bill further required EPA to develop

alternative limits for specific sites if a permittee

demonstrated that the costs bore no reasonable

relationship to the benefits. Jd. 1044-45. For new

sources, the House bill paralleled the Senate in all

pertinent respects except one: the House bill

required an up-front consideration by EPA of the

costs and economic, social, and environmental

impacts of achieving the standards. Jd. 993.

With respect to thermal discharges, the

Senate wanted all the technology-based provisions to

apply. The House wanted to regulate thermal

discharges separately by including a separate §316

in H.R. 11896. That provision would have required

EPA, in adopting regulations for thermal discharges,

to perform a cost-benefit analysis of the alternatives.

1 Leg. Hist. 348. It also would have provided relief

from the limits where a discharger’s costs bore no

reasonable relationship to the social and economic

benefits. Id.

29

The final] legislation was a compromise, and

the House gave more ground than the Senate. But

the House got much of what it wanted. Most

important, the House won with respect to thermal

discharges.

All this history reveals is the Senate’s aversion

to requiring EPA, as a predicate to rulemaking, to

demonstrate that the cost of the regulations would

equal or exceed the benefits. It does not show a

rooted aversion, by either chamber, to allowing EPA

to make a cost-benefit comparison where the Agency

thought it reasonable or necessary. Nothing in the

documents Riverkeeper offers shows anything to the

contrary.

b. Riverkeeper’s Senate

Staff Documents

Riverkeeper contends that the documents it

has uncovered reveal that including the “technoluogy-

based” provision for intake structures was a pivotal

development, breaking the logjam between the two

chambers. Riverkeeper 13-14 n.8. But none of the

documents says anything about why Congress

included §316(b) or how the Conferees expected it to

be implemented.

Riverkeeper wants the Court to conclude that

the House and Senate intended §316(b) to prohibit

EPA from comparing costs and benefits, because

otherwise the Senate wouldn’t have achieved what it

wanted from the compromise. But the legislative

record demonstrates only that the two sides

compromised, each giving a little with respect to how

30

thermal discharges should be regulated. It reveals

nothing, beyond the words of the statute, about what

they expected of §316(b).

It is not credible to conclude, as Riverkeeper

suggests, that the compromise approved variances to

reduce costs of controlling discharges if fish

populations were protected but required the same

technology without regard to cost-benefit to contro)

the intakes at the other end of the cooling system. It

is beyond credulity to suppose that the Hou.e,

having fought for and won a significant concession on

cooling water discharges, would have agreed to a

regulatory approach for intake structures that undid

what it had accomplished.

Taken together, the language, context, and

legislative history of §316(b) demonstrate that the

statute is at least ambiguous as to whether EPA may

compare costs and benefits in regulating cooling

water intake structures. EPA’s interpretation was

reasonable and is entitled to deference.

lil. For Over Thirty Years, EPA and the

Courts Have Interpreted §316(b) to Allow

Cost-Benefit Balancing

As shown in our initial brief at 37-41, for over

30 years EPA, the States, and the courts have

recognized that §316(b) authorizes cost-benefit

balancing. Riverkeeper’s attempts (Riverkeeper 46)

to marginalize or distinguish this longstanding

interpretation are unavailing.

31

A. EPA Has Never Interpreted §316(b)

to Prohibit Cost-Benefit Analysis

EPA has consistently said that a formal cost-

benefit analysis, demonstrating that benefits at least

equal costs, is not required to choose best technology

available (or best available technology for

pollutants). But it also has said, just as consistently,

that some weighing of costs and benefits is allowed.

That is all EPA did in the Phase II rule. See supra,

section I.A.2.

Riverkeeper at 15 claims that EPA conceded

in the preamble to the 1976 §316(b) rule (which was

remanded by the Fourth Circuit in 1977) that it “had

no discretion” to compare monetary costs with social

benefits. Riverkeeper bases its argument on EPA’s

statement that “once such adverse effects have been

identified ... the effort must be to select the most

effective means of minimizing (i.e., ‘reducing to the

smallest amount or degree’) those adverse effects.”

41 Fed. Reg. 17,387, 17,388 (April 26, 1976).

Contrary to Riverkeeper’s claim, nothing in

that statement indicates the Agency believed that

§316(b) required EPA to select the technology that

most effectively reduces impingement mortality and

entrainment without regard to environmental impact

or economic value. As pointed out in UWAG’s brief

at 38-39, EPA also recognized that “there are many

factors that should be considered when determining

whether an adverse environmental impact exists or

is likely to exist,” 41 Fed. Reg. 17,388. The Agency

therefore concluded that, “rather than reliance on a

32

single factor,” “all pertinent factors” (including the

number of organisms affected and the level of any

resulting damage to the aquatic ecosystem) “should

receive adequate consideration.” Jd. Nowhere did

EPA say that “adequate consideration” could not

include the broader environmental or economic value

of the organisms affected. Thus, EPA declined to

require closed-cycle cooling, even for power plants in

“biologically sensitive areas such as estuaries.” Id.

Even if EPA’s 1976 statement could plausibly

be construed as acknowledging some limit on the

Agency’s authority to weigh costs and benefits, that

has not been EPA’s interpretation in practice over

the past 30 years. Indeed, as explained in our initial

brief at 15, EPA has since defined “minimize” in

40 C.F.R. §125.83 as “reduce to the smallest amount,

extent, or degree reasonably possible.” Determining

what is “reasonably possible” encompasses some

comparison of costs and benefits.

B. State and Federal Regulators

Weigh Costs and Benefits Using the

“Wholly Disproportionate” Test,

Which the First Circuit Upheld in

Seacoast

As our initial brief at 37-41 showed, regulators

and courts have consistently interpreted §316(b) to

authorize comparison of costs and benefits, showing

that EPA’s interpretation in the Phase II rule was

reasonable. Riverkeeper’s attempts to discount these

interpretations are unpersuasive.

33

Riverkeeper begins by arguing at 45 n.22 that

the First Circuit “did not uphold” the “wholly

disproportionate” test. But the court affirmed the

Administrator’s decision that further minimizing

entrainment would be wholly dispronortionate to any

environmental benefit. Seacoast Anti-Pollution

League v. Costle, 597 F.2d 306, 311 (1%t Cir. 1979).

To uphold the Administrator’s decision, the First

Circuit must have decided that it was correct both as

to law and as to the facts.

Riverkeeper also claims at 44-46 that the

wholly disproportionate test is nothing more than a

“cost-effectiveness” test in disguise. But deciding

whether the costs of an alternative are “wholly

disproportionate to any benefits” means examining

whether the costs are bigger than the benefits, not

whether the benefits are “essentially the same” while

- the costs are different.

Riverkeeper at 46 argues’ that’ the

longstanding interpretation of §316(b) in many

permit decisions is irrelevant, because those permit

decisions are not EPA rules adopted with notice and

comment procedures. This argument ignores the fact

that permits too are subject to notice-and-comment

procedures, as well as to EPA oversight. Even if that

were not so, some states have adopted EPA-approved

NPDES regulations for §316(b) that include cost-

benefit balancing. For example, the State of

Maryland’s’ regulations implementing §316(b)

expressly call for weighing costs against benefits.

Dollar values are assigned to fish lost to

impingement, and dischargers must mitigate the loss

34

if the additional cost over a five-year period does not

exceed five times the estimated annual value of

impingement loss. Maryland Environmental

Regulations §26.08.03.05(D)(2).

Even states that have not adopted cost-benefit

comparison in their §316(b) regulations have used it

as a matter of practice. For example, a California

court recently concluded that “[o]ver the years, a

standard for economic considerations has emerged,

commonly referred to as the wholly disproportionate

test” (though review has been deferre?d pending

Supreme Court review of the cost-benefit issue).

Voices of the Wetlands v. Cal. State Water Res.

Control Bd., 69 Cal. Rptr. 3d 487, 543 (Cal. App. 6th

Dist. 2007), review granted, depublished by Voices of

the Wetlands v. Cal. State Water Res. Control Bd., 74

Cal. Rptr. 3d 453, 180 P.3d 223 (Cal. 2008). And

New York State has long incorporated the “wholly

disproportionate” test into its own §316(b) law. In

the Matter of Entergy Nuclear Indian Point 2 & 3,

Interim Decision of the Assistant Commissioner,

DEC No. 3-5522-00011/00004 (August 13, 2008).

Indeed, agencies of three of the Northeast

States endorsed the “wholly disproportionate” test in

commenting on the Phase II rule. “The former

criterion [‘costs wholly disproportionate to benefits’]

has been applied to these Phase II and all other

facilities since the 1970s and is supported by a

substantial body of case law, permit decisions and

legal opinions.” New York State Dept. of FEnvtl.

Conservation comments, at 4 (August 7, 2002). New

Jersey likewise recommended using the “wholly

35

disproportionate” test. NJDEP comments, at 6 (Aug.

8, 2002); see also Massachusetts Office of Coastal

Zone Management comments, 2 (June 14, 2002)

(opposing EPA’s change from “wholly

disproportionate” to “substantially greater than”).

Indeed, New Jersey has declined to require closed-

cycle cooling at PSEG’s Salem facility because “the

estimated cost ... is wholly disproportionate.” NJ

Fact Sheet NJ0005622 (June 24, 1993), at 138-39.

In short, even the Phase II rule’s most

vociferous opponents have read §316(b) as

authorizing at least some comparison of costs and

benefits. Their endorsement is strong evidence that

the “plain language” of §316(b) does not preclude

cost-benefit balancing and that EPA’s interpretation

was reasonable.

CONCLUSION

For the reasons given above, UWAG urges the

Court to affirm EPA’s authority to compare costs and

benefits both in setting national technology-based

standards and for site-specific standards. For the

reasons Entergy discusses in its reply at §III, a

remand is unnecessary.

OCTOBER 29, 2008

36

Respectfully submitted,

KRISTY A. N. BULLEIT

Counsel of Record

HUNTON & WILLIAMS LLP

1900 K STREET, N.W.

WASHINGTON, DC 20006-1109

(202) 955-1547

Counsel for Petitioner