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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, and 125

[FRL-6843-5]

RIN 2040-AC23

National Pollutant Discharge Elimination System—Regulations Addressing Cooling Water Intake Structures for New Facilities

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Today's proposed rule would implement section 316(b) of the Clean Water Act (CWA) for new facilities that use water withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or other waters of the U.S. for cooling water purposes. The proposed rule would establish national requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities. The proposed national requirements would minimize the adverse environmental impact associated with the use of these structures.

Today's proposed rule would establish location, design, construction, and capacity requirements that reflect the best technology available for minimizing adverse environmental impact from the cooling water intake structure based on the placement of the intake structure and the water body type. The Environmental Protection Agency (EPA) proposes to group surface water into four categories—freshwater rivers and streams, lakes and reservoirs, estuaries and tidal rivers, and oceans—and to establish requirements for cooling water intake structures located in each water body type. In general, the closer the intake structure is to areas that are most sensitive or biologically productive, the more stringent the requirements proposed to minimize adverse environmental impact. Under this proposal, EPA would set performance requirements and would not mandate the use of specific technologies.

EPA expects that this proposed regulation would reduce impingement and entrainment at new facilities over the next 20 years. Today's proposed rule would establish requirements that would help preserve ecosystems in close proximity to cooling water intake structures at new facilities. EPA has considered the potential benefits of the proposal and the preamble discusses them in qualitative terms. Expected benefits include a decrease in expected mortality or injury to aquatic organisms that would otherwise be subject to entrainment into cooling water systems or impingement against screens or other devices at the entrance of cooling water intake structures. The proposed regulatory requirements also could reduce adverse impact on threatened and endangered species.

DATES:

Comments on this proposed rule and Information Collection Request (ICR) must be received or postmarked on or before midnight October 10, 2000.

ADDRESSES:

Public comments regarding this proposed rule should be submitted by mail to: Cooling Water Intake Structure (New Facilities) Proposed Rule Comment Clerk—W-00-03, Water Docket, Mail Code 4101, EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Comments delivered in person (including overnight mail) should be submitted to the Cooling Water Intake Structure (New Facilities) Proposed Rule Comment Clerk—W-00-03, Water Docket, Room EB 57, 401 M Street, SW., Washington, DC 20460. You also may submit comments electronically to

ow-docket@epa.gov.

Please submit any references cited in your comments. Please submit an original and three copies of your written comments and enclosures. For additional information on how to submit comments, see “

SUPPLEMENTARY INFORMATION,

How May I Submit Comments?”

EPA has prepared an ICR for this proposed rule (EPA ICR number 1973.01). For further information or a copy of the ICR contact Sandy Farmer by phone at (202)260-2740, e-mail at farmer.sandy@epamail.epa.gov or download off the internet at http://www.epa.gov/icr. Send comments on the Agency's need for this information, the accuracy of the burden estimates, and any suggested methods for minimizing respondent burden (including the use of automated collection techniques) to the following addresses. Please refer to EPA ICR No. 1973.01 in any correspondence.

Ms. Sandy Farmer, U.S. Environmental Protection Agency, OP Regulatory Information Division (2137), 401 M Street, SW., Washington, DC 20460

and

Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

For additional technical information contact Deborah G. Nagle at (202) 260-2656 or James T. Morgan at (202) 260-6015. For additional economic information contact Lynne Tudor at (202) 260-5834. The e-mail address for the above contacts is “rule.316b@epa.gov.”

SUPPLEMENTARY INFORMATION:

What Entities Are Potentially Regulated by This Action?

This proposed rule would apply to new facilities that use cooling water intake structures to withdraw water from waters of the U.S. and that have or require a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the CWA. New facilities subject to this regulation would include those with a design intake flow of greater than two (2) million gallons per day (MGD). If a new facility meets these conditions, it is subject to today's proposed regulations. If a new facility has or requires an NPDES permit but does not meet the 2 MGD intake flow threshold, it would be subject to permit conditions implementing section 316(b) on a case-by-case basis, using best professional judgment. This proposal defines the term “cooling water intake structure” to mean the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S., provided that at least twenty-five (25) percent of the water withdrawn is used for cooling purposes. Generally, facilities that meet these criteria fall into two major groups: new steam electric generating facilities and new manufacturing facilities.

The following table lists the types of entities that are potentially subject to this proposed rule. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware that could potentially be regulated by this action; other types of entities not listed in the table could also be regulated. To determine whether your facility would be regulated by this action, you should carefully examine the applicability criteria proposed at § 125.81 of the rule. If you have questions regarding the applicability of this action to a particular entity, consult one of the persons listed for technical information in the preceding

FOR FURTHER INFORMATION CONTACT

section.

Category

Examples of regulated entities

Standard Industrial

Classification Codes

North American Industry Code (NAIC)

Federal, State and local government

Operators of steam electric generating point source dischargers that employ cooling water intake structures

4911 and 493

221111, 221112, 221113, 221119, 221121, 221122, 221111, 221112, 221113, 221119, 221121, 221122.

Industry

Operators of industrial point source dischargers that employ cooling water intake structures

See below

See below.

Steam electric generating

4911 and 493

221111, 221112, 221113, 221119, 221121, 221122, 221111, 221112, 221113, 221119, 221121, 221122.

Agricultural production

0133

111991 11193.

Metal mining

1011

21221.

Oil and gas extraction

1311, 1321

211111, 211112.

Mining and quarrying of nonmetallic minerals

1474

212391.

Food and kindred products

2046, 2061, 2062, 2063, 2075, 2085

311221, 311311, 311312, 311313, 311222, 311225, 31214.

Tobacco products

2141

312229, 31221.

Textile mill products

2211

31321.

Lumber and wood products, except furniture

2415, 2421, 2436, 2493

321912, 321113, 321918, 321999, 321212, 321219.

Paper and allied products

2611, 2621, 2631, 2676

3221, 322121, 32213, 322121, 322122, 32213, 322291.

Chemical and allied products

28 (except 2895, 2893, 2851, and 2879)

325 (except 325182, 32591, 32551, 32532).

Petroleum refining and related industries

2911, 2999

32411, 324199.

Rubber and miscellaneous plastics products

3011, 3069

326211, 31332, 326192, 326299.

Stone, clay, glass, and concrete products

3241

32731.

Primary metal industries

3312, 3313, 3315, 3316, 3317, 3334, 3339, 3353, 3363, 3365, 3366

324199, 331111, 331112, 331492, 331222, 332618, 331221, 22121, 331312, 331419, 331315, 331521, 331524, 331525.

Fabricated metal products, except machinery and transportation equipment

3421, 3499

332211, 337215, 332117, 332439, 33251, 332919, 339914, 332999.

Industrial and commercial machinery and computer equipment

3523, 3531

333111, 332323, 332212, 333922, 22651, 333923, 33312.

Transportation equipment

3724, 3743, 3764

336412, 333911, 33651, 336416.

Measuring, analyzing, and controlling instruments; photographic, medical, and optical goods; watches and clocks

3861

333315, 325992.

Electric, gas, and sanitary services

4911, 4931, 4939, 4961

221111, 221112, 221113, 221119, 221121, 221122, 22121, 22133.

Educational services

8221

61131.

How May I Review the Public Record?

The record (including supporting documentation) for this proposed rule is filed under docket number W-00-03 (proposed rule). The record is available for inspection from 9 a.m. to 4 p.m. on Monday through Friday, excluding legal holidays, at the Water Docket, Room EB 57, USEPA Headquarters, 401 M Street, SW, Washington, DC 20460. For access to docket materials, please call (202)260-3027 to schedule an appointment during the hours of operation stated above.

How May I Submit Comments?

To ensure that EPA can read, understand, and therefore properly respond to comments, the Agency requests that you cite, where possible, the paragraph(s) or sections in the preamble, rule, or supporting documents to which each comment refers. You should use a separate paragraph for each issue you discuss.

If you want EPA to acknowledge receipt of your comments, enclose a self-addressed, stamped envelope. No faxes will be accepted. Electronic comments must be submitted as a WordPerfect 5.1, 6.1, or 8 format, or an ASCII file or file avoiding the use of special characters and forms of encryption. Electronic comments must be identified by the docket number W-00-03. EPA will accept comments and data on disks in WordPerfect 5.1, 6.1, or 8 format or in ASCII file format. Electronic comments on this notice may be filed on-line at many Federal depository libraries.

Cooling Water Intake Structures: Section 316(b) New Facility Draft Preamble and Proposed Rule

Table of Contents

I. Legal Authority

II. Purpose and Summary of Proposed Regulation

A. What Is the Purpose of Today's Proposed Regulation?

B. What Requirements Would Today's Proposed Regulation Establish?

C. How Does Today's Proposed Regulation Affect New Facilities Built Before Today's Proposal Is Finalized and Existing Facilities Subject to Section 316(b)?

III. Legal Background

A. The Clean Water Act

B. What Is Required Under Section 316 of the Clean Water Act?

IV. History

A. Have Prior EPA Regulations Addressed Cooling Water Intake Structures?

B. How is Section 316(b) of the CWA Being Implemented Now?

V. Scope and Applicability of the Proposed Rule

A. Who Is Covered Under This Proposed Rule?

B. What Is a “New Facility”?

C. What Is a “Cooling Water Intake Structure”?

D. Must My Facility Withdraw Water from Waters of the U.S.?

E. Must My Facility Have a Point Source Discharge Subject to an NPDES Permit?

VI. Data Collection and Overview of Industries Potentially Subject to Proposed Rule

A. Overview

B. New Steam Electric Generating Facilities

C. New Manufacturing Facilities

VII. Environmental Impact Associated with Cooling Water Intake Structure

A. Overview

B. What Types of Environmental Impacts Are Caused by Cooling Water Intake Structures?

C. What Entrainment and Impingement Impacts Caused by Cooling Water Intake Structures Have Been Documented?

D. What Constitutes Adverse Environmental Impact Under This Proposed Rule?

VIII. Best Technology Available for Minimizing Adverse Environmental Impact at New Facilities

A. What Is the Best Technology Available for Minimizing Adverse Environmental Impact at New Facilities?

1. What Are the Proposed and Alternative Regulatory Frameworks for Today's Proposed Rule?

2. Location

3. Flow and Volume

4. Velocity

5. Additional Design and Construction Technologies

6. What is the Role of Restoration Measures?

7. Additional and Alternative BTA Requirements

8. Other Approaches Being Considered by EPA

B. What Technologies Can Be Used to Meet the Regulatory Requirements?

1. Intake Screen Systems

2. Passive Intake Systems (Physical Exclusion Devices)

3. Diversion or Avoidance Systems

4. Fish-Handling Systems and Other Technologies

C. How Is Cost Being Considered in Establishing BTA for New Facilities?

IX. Implementation

A. What Information Must I Submit to the Director When I Apply for My New or Reissued NPDES Permit

?

1. Source Water Baseline Biological Characterization Data

2. Source Water Physical Data

3. Cooling Water Intake Structure Velocity and Flow Data

4. Data to Show Compliance with the Flow Requirements, Velocity Requirement, Flow Reduction Requirement, and Additional Design and Construction Technology Requirement

5. Data to Support A Request for Alternative Requirements

B. How Would the Director Determine the Appropriate Cooling Water Intake Structure Requirements?

C. What Would I Be Required to Monitor?

D. How Would Compliance Be Determined?

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

F. Are Permits for New Facilities Subject to Requirements Under Other Federal Statutes?

X. Cost/Benefit Analysis

A. Cost

1. Electric Generation Sector

2. Manufacturing Sector

3. Cost Impacts

4. Cost Impacts of Other Alternatives

B. Discussion of Cooling Water Intake Structure Impacts and Potential Benefits

XI. Administrative Requirements

A. Paperwork Reduction Act

B. Unfunded Mandates Reform Act

C. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601

et seq.

1. Electric Generation Sector

2. Manufacturing Sector

D. Executive Order 12866: Regulatory Planning and Review

E. Executive Order 13132: Federalism

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

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

H. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

I. National Technology Transfer and Advancement Act

J. Plain Language Directive

K. Executive Order 13158: Marine Protected Areas

XII. Solicitation of Comments and Data

A. Specific Solicitation of Comment and Data

B. General Solicitation of Comment

I. Legal Authority

Today's proposed rule is issued under the authority of sections 301, 306, 308, 316, 402, and 501 of the Clean Water Act (CWA), 33 U.S.C. 1311, 1316, 1318, 1326, 1342, and 1361. This proposal partially fulfills the obligations of the U.S. Environmental Protection Agency (EPA) under a Consent Decree in

Cronin

v.

Browner

, United States District Court, Southern District of New York, No. 93 Civ 0314 (AGS).

II. Purpose and Summary of Proposed Regulation

A.

What Is the Purpose of Today's Proposed Regulation?

Section 316(b) of the CWA provides that any standard established pursuant to section 301 or 306 of the CWA and applicable to a point source must require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. Today's proposal would define a cooling water intake structure as the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S., provided that at least twenty-five (25) percent of the water withdrawn is used for cooling purposes. Cooling water absorbs waste heat rejected from processes employed or from auxiliary operations on a facility's premises. Single cooling water intake structures might have multiple intake bays. Today's proposed rule would establish requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities. The proposal seeks to minimize the adverse environmental impact associated with the use of these structures.

Today's proposed rule partially fulfills EPA's obligation to comply with a Consent Decree entered in the United States District Court, Southern District of New York in

Cronin

v.

Browner,

No. 93 Civ. 0314 (AGS), a case brought against EPA by a coalition of individuals and environmental groups. The Consent Decree as entered on October 10, 1995, provided that EPA propose regulations implementing section 316(b) by July 2, 1999, and take final action with respect to those regulations by August 13, 2001. EPA later moved to amend the Consent Decree by bifurcating the rule into two phases—Phase I addressing new facilities and Phase II addressing existing facilities—and extending the deadlines for proposal and final action. Plaintiffs opposed EPA's motion for an extension of the deadlines. On March 27, 2000, the Court amended the Consent Decree to provide among other things that EPA propose regulations addressing new facilities on or before July 20, 2000, and propose regulations addressing existing facilities on or before July 20, 2001. The Court declined

to specify deadlines for final action with respect to regulations addressing new and existing facilities, stating that the parties should attempt to reach an agreement with respect to the deadlines in the Consent Decree. Today's proposal fulfills EPA's obligation under the Consent Decree to propose regulations addressing new facilities.

This proposed rule would apply to new facilities that use cooling water intake structures to withdraw water from waters of the U.S. and that have or require a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the CWA. New facilities subject to this proposed regulation would be those with a design intake flow of greater than two (2) million gallons per day (MGD).

If a new facility has or requires an NPDES permit and meets the 2 MGD flow threshold, it is subject to today's proposed regulations. The proposal would define the term “new facility” as any building, structure, facility, or installation that meets the definition of “new source” or “new discharger” in 40 CFR 122.2 and 122.29(b)(1), (2), and (4); commences construction after the effective date of this rule; and has a new or modified cooling water intake structure that withdraws cooling water from waters of the U.S.

Today's proposal would add language to EPA's NPDES permitting regulations at 40 CFR part 125, subpart I that establishes requirements applicable to cooling water intake structures for new facilities, and would reserve 40 CFR part 125, subpart J for requirements addressing existing facilities. Today's proposal also would amend EPA's regulations at 40 CFR 122.44(b)(3) to require the inclusion in EPA-issued NPDES permits of requirements applicable to cooling water intake structures at new facilities, in accordance with part 125, subpart I and would amend EPA's regulations establishing requirements for authorized State NPDES programs by reinstating references to 40 CFR part 125, subparts I and J in 40 CFR 123.25(a)(36). This would have the effect of mandating that States have legal authority to implement final regulations addressing cooling water intake structures at new and existing facilities. Subpart I currently reads in its entirety, “Criteria Applicable to Cooling Water Intake Structures Under section 316(b) of the Act [Reserved].” Subpart J currently reads in its entirety, “Reserved.” References to part 125, subparts I and J were included in § 123.25(a)(36) for many years. Recently, however, EPA's

Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two

deleted the references to subparts I and J from 40 CFR 123.25(a)(36) along other with references to reserved subparts. 65 FR 30886, 30910 (May 15, 2000). Today's proposal would reinsert those references in light of the pending rulemaking proceedings addressing cooling water structures at new and existing facilities.

Proposed section 125.80(c) makes clear that nothing in today's proposal would preclude or deny the authority of States, their political subdivisions, and interstate agencies under section 510 of the CWA. States retain authority under section 510 to adopt or enforce any requirement respecting the control or abatement of pollution that is more stringent than the minimum requirements established in a final rule based on this proposal. Section 502(19) of the CWA defines “pollution” as including the man-made or man-induced alteration of the physical and biological integrity of water.

Today's proposed rule would also add proposed regulatory language at 40 CFR 122.2(q) to require that the information required under proposed § 125.86 regarding cooling water intake structure information and requests for alternative requirements under proposed § 125.85 be submitted at the time of permit application. Finally, EPA proposes to amend the public notification requirements at 40 CFR 124.10(d)(1) to require notification that a permit applicant is subject to the cooling water intake structure requirements of part 125 subpart I.

B.

What Requirements Would Today's Proposed Regulation Establish?

At § 125.84(a)-(e), today's proposed rule would establish national performance requirements for the location, design, construction, and capacity of cooling water intake structures at new facilities to minimize adverse environmental impact. Under the proposed rule, EPA would establish minimum national location, design, construction, and capacity requirements for minimizing adverse environmental impact from cooling water intake structures based on the placement of the intake structure and the water body type. EPA has grouped surface waters into four categories and is proposing separate requirements for cooling water intake structures in each category. These categories are based on the location of a facility's cooling water intake structure on or within (1) a freshwater river or stream, (2) a lake or reservoir, (3) an estuary or tidal river, or (4) an ocean. Proposed § 125.84(f) provides that in certain circumstances Directors may impose additional site-specific requirements when in their judgment the national requirements are not sufficient to ensure that adverse environmental impact will be minimized. Section 125.84(g) would require the Director to impose any more stringent requirements needed to ensure attainment of water quality standards. Finally, § 125.85 would allow any interested person to request that the Director impose alternative best technology available (BTA) requirements by demonstrating that compliance with the requirements would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the national standards proposed at § 125.84(a)-(e). The term “Director” means the State or Tribal Director where there is an approved NPDES State or Tribal program and means the Regional Administrator where EPA administers the NPDES program in the State. See 40 CFR 122.2.

C. How Does Today's Proposed Regulation Affect New Facilities Built Before Today's Proposal Is Finalized and Existing Facilities Subject to Section 316(b)?

In 1977 EPA issued draft guidance for determining the best technology available to minimize adverse environmental impact from cooling water intake structures. In the absence of section 316(b) regulations or final guidance, the 1977 draft guidance has served as applicable guidance for section 316(b) determinations. See

Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-500

(U.S. EPA, 1977). Administrative determinations in several permit proceedings also have served as de facto guidance.

Today, EPA proposes a national framework that would establish certain minimum requirements for the design, capacity, and construction of cooling water intake structures for new facilities based on the location of a cooling water intake structure in four categories of water bodies. In doing so, the Agency is proposing to revise the approach adopted in the 1977 draft guidance which was based on the judgment that “[t]he decision as to best technology available for intake design location, construction, and capacity must be made on a case-by-case basis.” Other important differences from the 1977 draft Guidance include today's proposed definition of a “cooling water intake structure” for new facilities. Today's proposal also would establish a cost test that is different from the

“wholly disproportionate” test that has been in use since the 1970s (see section VIII C).

Although EPA's judgment is that the requirements proposed today would best implement section 316(b) for new facilities, the Agency is also inviting comment on a broad array of other alternatives, including, for example, a framework under which Directors would continue to evaluate adverse environmental impact and determine the best technology available for minimizing such impact on a wholly site-specific basis. Because the Agency is inviting comment on such a broad range of alternatives for potential promulgation, today's proposal is not intended as guidance for determining the best technology available to minimize the adverse environmental impact of cooling water intake structures at new facilities before the Agency promulgates final regulations based on today's proposal. In the interim, Directors should continue to make section 316(b) determinations, which may be more or less stringent than today's proposal, on a case-by-case basis applying best professional judgment.

Today's proposal does not apply to existing facilities. Although EPA has not yet closely examined the costs of technology options at facilities, the Agency anticipates that existing facilities would have less flexibility in designing and locating their cooling water intake structures than new facilities and that existing facilities might incur higher costs to comply with the proposed requirements than new facilities would incur. For example, existing facilities might need to upgrade or modify existing intake structures and cooling water systems to meet today's proposed requirements, which might impose greater costs than use of the same technologies at a new facility. Retrofitting technologies at an existing facility might also require brief shutdown periods during which the facility would lose both production and revenues, and certain retrofits could decrease the thermal efficiency of an electric generating facility. Existing facilities also might have site limitations, such as lack of undeveloped space, that might make certain technologies infeasible. The Agency anticipates that at the time it promulgates final requirements for cooling water intake structures at new facilities, it will have made substantial progress in its analyses to support section 316(b) regulations for existing facilities employing cooling water intake structures. Upon promulgation of final regulations based on today's proposal, the Agency will address the extent to which the final new facility regulation and preamble should serve as guidance for developing section 316(b) requirements for existing facilities prior to the promulgation of the section 316(b) regulations for existing facilities.

III. Legal Background

A. The Clean Water Act

The Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), seeks to “restore and maintain the chemical, physical, and biological integrity of the nation's waters.” 33 U.S.C. section 1251(a). The CWA establishes a comprehensive regulatory program, key elements of which are (1) a prohibition on the discharge of pollutants from point sources to waters of the U.S., except as authorized by the statute; (2) authority for EPA or authorized States or Tribes to issue NPDES permits that regulate the discharge of pollutants; and (3) requirements for EPA to develop effluent limitations guidelines and standards and for States to develop water quality standards that are the basis for the pollutant discharge limits imposed in NPDES permits.

Today's proposed rule implements section 316(b) of the CWA as it applies to new facilities. Section 316(b) addresses the adverse environmental impact caused by the intake of cooling water, not discharges into water. Despite this special focus, the requirements of section 316(b) are closely linked to several of the core elements of the NPDES permit program established under section 402 of the CWA to control discharges of pollutants into navigable waters. For example, section 316(b) applies to facilities that use a cooling water intake structure and have a point source discharge that is NPDES-permitted or requires an NPDES permit. Conditions implementing section 316(b) are included in NPDES permits and would continue to be included in NPDES permits under this proposed rule.

Section 301 of the CWA prohibits the discharge of any pollutant by any person, except in compliance with specified statutory requirements. These requirements include compliance with technology-based effluent limitations guidelines and new source performance standards, water quality standards, NPDES permit requirements, and certain other requirements.

Section 402 of the CWA provides authority for EPA or an authorized State or Tribe to issue an NPDES permit to any person discharging any pollutant from a point source into waters of the U.S. Forty-three States and one U.S. territory are authorized under section 402(b) to administer the NPDES permitting program. NPDES permits restrict the types and amounts of pollutants, including heat, that may be discharged from various industrial, commercial, and other sources of wastewater. These permits control the discharge of pollutants primarily through the imposition of effluent limitations and other permit conditions. Effluent limitations may be based on promulgated effluent limitations guidelines, new source performance standards, or the best professional judgment of the permit writer. Limitations based on these guidelines, standards, or best professional judgment are known as technology-based effluent limits. Where technology-based effluent limits are inadequate to ensure compliance with water quality standards applicable to the receiving water, more stringent effluent limits based on applicable water quality standards are imposed. NPDES permits also routinely include monitoring and reporting requirements, standard conditions, and special conditions.

Sections 301, 304, and 306 of the CWA require that EPA develop technology-based effluent limitations guidelines and new source performance standards that are used as the basis for technology-based minimum discharge requirements in wastewater discharge permits. EPA issues these effluent limitations guidelines and standards for categories of industrial dischargers based on the pollutants of concern discharged by the industry, the degree of control that can be attained using various levels of pollution control technology, the economic achievability of meeting the level of control, and other factors identified in section 304 and 306 of the CWA. EPA has promulgated regulations setting effluent limitations guidelines and standards under sections 301, 304, and 306 of the CWA for more than 50 industries. See 40 CFR parts 405-471. Among these, EPA has established effluent limitations guidelines that apply to most of the industry categories that use cooling water intake structures (

e.g.,

steam electric power generation, iron and steel manufacturing, pulp and paper, petroleum refining, chemical manufacturing).

Section 306 of the CWA requires that EPA establish discharge standards for new sources. For purposes of section 306, new sources include any source that commenced construction after the promulgation of applicable new source performance standards, or after proposal of applicable standards of performance

if the standards are promulgated in accordance with section 306 within 120 days of proposal. CWA section 306; 40 CFR 122.2. New source performance standards are similar to the technology-based limitations established for existing sources, except that new source performance standards are based on the best available demonstrated technology instead of the best available technology economically achievable. New facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. Therefore, Congress directed EPA to consider the best demonstrated process changes, in-plant controls, and end-of-process control and treatment technologies that reduce pollution to the maximum extent feasible. In addition, in establishing new source performance standards, EPA is required to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impact and energy requirements.

B. What Is Required Under Section 316 of the Clean Water Act?

Section 316(b) seeks to minimize the adverse environmental impact associated with cooling water intake structures. Section 316(b) provides, “Any standard established pursuant to [CWA section 301] or [CWA section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.”

Congress included section 316 in the CWA for the express purpose of regulating thermal discharges and addressing the environmental impact of cooling water intake structures. Sections 316(a) and (c) provide for relief in certain circumstances from the thermal effluent standards applicable to point source discharges of pollutants. Section 316(b) does not focus on controlling the discharge of pollutants; rather, it addresses the environmental impact of cooling water intake structures. Section 316(b) is the only provision in the CWA that focuses exclusively on water intake.

Today's proposal would establish requirements that focus on the location, design, construction, and capacity of cooling water intake structures at new facilities. For each of these features, today's proposed rule would establish minimum requirements that constitute the “best technology available for minimizing adverse environmental impact.” EPA notes that “best technology available” (BTA) is a distinct standard under the CWA. Although it is technology-based and similar to the standards used in the development of effluent limitations guidelines (

i.e.,

best available technology economically achievable), the BTA standard does not explicitly include any consideration of the costs of ensuring that cooling water intake structures reflect the best technology available, although based on legislative history EPA has long done so. In addition, the standards developed under section 316(b) focus on minimizing adverse environmental impact.

Today's proposal also would define a cooling water intake structure as the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S., provided that at least twenty-five (25) percent of the water withdrawn is used for cooling purposes. New facilities subject to this proposed regulation would be those with a design intake flow of greater than two (2) million gallons per day (MGD).

IV. History

A. Have Prior EPA Regulations Addressed Cooling Water Intake Structures?

In April 1976 EPA published a rule under section 316(b) that addressed cooling water intake structures. 41 FR 17387 (April 26, 1976), proposed at 38 FR 34410 (December 13, 1973). The rule added a new § 401.14 to 40 CFR Chapter I that reiterated the requirements of CWA section 316(b). It also added a new part 402, which included three sections: (1) § 402.10 (Applicability); (2) § 402.11 (Specialized definitions); and (3) § 402.12 (Best technology available for cooling water intake structures). Section 402.10 stated that the provisions of part 402 applied to “cooling water intake structures for point sources for which effluent limitations are established pursuant to section 301 or standards of performance are established pursuant to section 306 of the Act.” Section 402.11 defined the terms “cooling water intake structure,” “location,” “design,” “construction,” “capacity,” and “Development Document.” Section 402.12 included the following language:

The information contained in the Development Document shall be considered in determining whether the location, design, construction and capacity of a cooling water intake structure of a point source subject to standards established under section 301 or 306 reflect the best technology available for minimizing adverse environmental impact.

In 1977 fifty-eight electric utility companies challenged these regulations, arguing that EPA had failed to comply with the requirements of the Administrative Procedure Act (APA) in promulgating the rule. Specifically, the utilities urged that EPA had neither published the Development Document in the

Federal Register

nor properly incorporated the document into the rule by reference. The United States Court of Appeals for the Fourth Circuit agreed and, without reaching the merits of the regulations themselves, remanded the rule.

Appalachian Power Co.

v.

Train,

566 F.2d 451 (4th Cir. 1977). EPA later withdrew part 402. 44 FR 32956 (June 7, 1979). 40 CFR 401.14 remains in effect.

B. How Is Section 316(b) of the CWA Being Implemented Now?

Since the Fourth Circuit remanded EPA's section 316(b) regulations in 1977, decisions implementing section 316(b) have been made on a case-by-case, site-specific basis. EPA published guidance addressing section 316(b) implementation in 1977. See Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-500 (U.S. EPA, 1977). This guidance describes the studies recommended for evaluating the impact of cooling water intake structures on the aquatic environment, and it establishes a basis for determining the best technology available for minimizing adverse environmental impact. The 1977 Section 316(b) Draft Guidance states, “The environmental-intake interactions in question are highly site-specific and the decision as to best technology available for intake design, location, construction, and capacity must be made on a case-by-case basis.” (Section 316(b) Draft Guidance, U.S. EPA, 1977, p. 4). This case-by-case approach also is consistent with the approach described in the 1976 Development Document referenced in the remanded regulation.

The 1977 Section 316(b) Draft Guidance suggests the general process for developing information needed to support section 316(b) decisions and presenting that information to the permitting authority. The process involves the development of a site-specific study of the environmental effects associated with each facility that uses one or more cooling water intake structures, as well as consideration of that study by the permitting authority in determining whether the facility must make any changes to minimize adverse environmental impact. Where adverse environmental impact is present, the 1977 Draft Guidance suggests a “stepwise” approach that considers screening systems, size, location, capacity, and other factors.

Although the Draft Guidance describes the information that should be developed, key factors that should be considered, and a process for supporting section 316(b) determinations, it does not establish national standards based on the best technology available to minimize adverse environmental impact. Rather, the guidance leaves the decisions on the appropriate location, design, capacity, and construction of each facility to the permitting authority. Under this framework, the Director determines whether appropriate studies have been performed and whether a given facility has minimized adverse environmental impact.

V. Scope and Applicability of the Proposed Rule

A. Who Is Covered Under This Proposed Rule?

Today's proposed rule would apply to you if you are the owner or operator of a facility that meets all of the following criteria:

• Your facility is a new facility;

• Your new facility has a cooling water intake structure or structures;

• Your new facility's cooling water intake structure(s) withdraw(s) water from waters of the U.S. and at least twenty-five (25) percent of the water withdrawn is used for contact or noncontact cooling purposes;

• Your new facility has a design intake flow of greater than two (2) million gallons per day (MGD); and

• Your new facility has an NPDES permit or is required to obtain one.

B. What Is a “New Facility”?

EPA is proposing to define the term “new facility” to mean any building, structure, facility or installation which

• Meets the definition of “new source” or “new discharger” in 40 CFR 122.2 and 122.29(b)(1), (2), and (4);

• Commences construction after the effective date of this rule; and

• Has a new or modified cooling water intake structure that withdraws water from waters of the U.S.

This proposal covers only “greenfield” and “stand-alone” facilities. A “greenfield” facility is a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility. A “stand-alone” facility is a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site. A modified cooling water intake structure is one that has some part of the intake, including the pumps, changed, replaced, or expanded to accommodate, in whole or in part, a new facility's water usage. Routine maintenance and repair to an intake structure which is currently withdrawing cooling water and does not result in an increase in design capacity is not considered a modification. Facilities that meet the conditions of 40 CFR 122.29(b)(3) would be considered to be undergoing a modification and would not be considered a “new facility” under these regulations. Such facilities will be addressed during the forthcoming existing facility rulemaking.

Examples of when a facility would be considered a new facility include, but are not limited to the following:

• Facility A is newly constructed on a property that has never been used for industrial or commercial activity, and a new cooling water intake structure is constructed for Facility A's use.

• Facility B, which produces widgets, is demolished and Facility C is constructed in its place. (Facility C might or might not produce widgets). Facility C uses the cooling water intake structure that Facility B used but modifies it in some way.

• Facility D is in commercial operation. Facility E, a separate and independent industrial operation, is constructed on the property that Facility D owns. The cooling water intake structure that Facility D uses is modified by constructing a new intake bay for Facility E's use.

Modifications to an existing facility would not be covered under this proposed rule. Rather, such modifications will be addressed during the existing facility rulemaking. Examples of when a facility undergoing a change or modification would be considered an existing facility might include the following:

• Facility F is in commercial or industrial operation. Facility F modifies its facility and either continues to use the original cooling water intake structure or a new or modified cooling water intake structure.

• Facility G has an existing intake structure. Facility H, a separate and independent industrial operation, is constructed on the property that Facility G owns and connects to Facility G's cooling water intake structure behind the intake pumps. In this case, the cooling water intake structure has not been modified for Facility H's use. This would remain true even if routine maintenance or repairs were performed on the structure.

• Facility J is in commercial or industrial operation. Facility J adds a new process unit consistent with 40 CFR 122.29(b)(3) that is directed toward the same general activity (

e.g.,

a new peaking unit at an electricity generation station) as facility J's existing operations. Facility J may or may not modify its intake structure to accommodate the new unit.

Today's proposal would define a facility as new based on the date the facility commences construction within the meaning of 40 CFR 122.29(b)(4). Under this approach, any facility that commences construction after the date on which the final rule is effective would have to comply with the new facility requirements. This approach to defining “new facility” is generally consistent with the definition of the terms “new source” and “new discharger” used in the NPDES permitting program (see 40 CFR 122.2 and 122.29), and it should provide adequate notice and time for the planning needed to implement the technological changes necessitated by the requirements.

C. What Is a “Cooling Water Intake Structure”?

At § 125.83, EPA is proposing to define a “cooling water intake structure” as the total physical structure and any associated constructed waterways used to withdraw water from a water of the U.S., provided that at least twenty-five (25) percent of the water withdrawn is used for cooling purposes. The cooling water intake structure extends from the point at which water is withdrawn from the surface water source to the first intake pump or series of pumps. The intended use of the cooling water is to absorb waste heat rejected from processes employed or from auxiliary operations.

This definition differs from the definition included in the 1977 Draft Guidance. First, the proposed definition clarifies that the cooling water intake structure includes the physical structure and technologies that extend up to the first intake pump or series of pumps. This change is intended to define more clearly what EPA considers to constitute the cooling water intake structure. Second, the definition would apply to water being brought in for both contact and noncontact cooling purposes. This clarification is necessary because cooling water intake structures typically bring water into at a facility for numerous purposes, including industrial processes; use as circulating water, service water, or evaporative cooling tower makeup water; dilution of effluent heat content; equipment cooling; and air conditioning. Finally, the proposed definition includes intake structures if a facility uses twenty-five

(25) percent or more of the water drawn through the structure for cooling purposes. This also is a change from the current practice. (The 1976 final rule and 1977 Draft Guidance definition of a “cooling water intake structure” included intake structures if a facility used the major portion of water drawn through the structure for cooling purposes. In practice, many permitting authorities have interpreted that definition to apply to intake structures if a facility uses more than 50 percent of the water drawn through the structure for cooling.)

Based on experience since the late 1970s, the Agency included intake structures at new facilities in today's proposal if a facility uses twenty-five (25) percent or more of the withdrawn water for cooling purposes. It is well settled that section 316(b) applies to all categories of point sources. See

United States Steel Corp.

v.

Train

, 556 F.2d 822, 849-50 (7th Cir. 1977). In practice, however, section 316(b) has been implemented at few facilities other than steam electric generating plants, despite the fact that a number of other industries use significant amounts of cooling water. EPA chose twenty-five (25) percent as a reasonable threshold for the percent of flow used for cooling purposes in conjunction with the two MGD total flow threshold discussed at section V.D. below to ensure that almost all cooling water withdrawn from waters of the U.S. are addressed by the requirements in this proposal for minimizing adverse environmental impact. The Agency invites comment on this proposed approach to defining a cooling water intake structure. The Agency also invites comment on whether it should define a cooling water intake structure in a manner similar to the 1976 final rule and 1977 draft guidance. If EPA implemented the latter approach, language such as the following would be included in proposed § 125.83:

Cooling water intake structure means the total structure used to direct water into the components of the cooling systems wherein the cooling function is designated to take place, provided that the intended use of the major portion of the water so directed is to absorb waste heat rejected from the process or processes employed or from auxiliary operations on the premises, including air conditioning.

The Agency also invites comment on an alternative where the Agency would define a cooling water intake structure to include intake structures if a facility uses five percent or more of the water drawn through the structure for cooling purposes. This alternative would further ensure that almost all cooling water withdrawn from waters of the U.S. is addressed by the requirements of this national regulation. This alternative also might minimize any potential that the proposed 25 percent threshold would discourage recycling of cooling water, or reuse of cooling water for process needs, by facilities that recycle or reuse cooling water at rates above 25 percent, and might choose to reduce their recycling/reuse rates to avoid meeting the requirements of the proposed rule. For similar reasons, the Agency is considering alternative definitions for a cooling water intake structure based on whether 20 percent, 15 percent, or 10 percent of the intake flow drawn through the structure is used for cooling. The Agency also invites comments on these alternative definitions.

D. Must My Facility Withdraw Water From Waters of the U.S.?

The requirements proposed today would apply to cooling water intake structures that withdraw amounts of water greater than the proposed flow threshold from “waters of the U.S.” Waters of the U.S. include the broad range of surface waters that meet the regulatory definition at 40 CFR 122.2, which includes lakes, ponds, reservoirs, nontidal rivers or streams, tidal rivers, estuaries, fjords, oceans, bays, and coves. These potential sources of cooling water may be adversely affected by impingement and entrainment.

Some facilities discharge heated water to cooling ponds, then withdraw water from the ponds for cooling purposes. Cooling ponds are considered “waters of the U.S.” if they meet the criteria in the definition of “waters of the U.S.” at 40 CFR 122.2. Therefore, facilities that withdraw cooling water from cooling ponds that are “waters of the U.S.” and that meet today's other proposed criteria for coverage (including the requirement that the facility have or be required to obtain an NPDES permit) would be subject to today's proposed rule. EPA invites comment on the applicability of today's proposal to new facilities that withdraw water from cooling ponds that are considered “waters of the U.S.”

At § 125.81, EPA is proposing that national BTA requirements would apply to new facilities that have a cooling water intake structure with a design intake capacity of greater than or equal to two (2) MGD of source water. EPA chose the two MGD threshold in conjunction with the proposed threshold discussed in the immediately preceding section, that would define a cooling water intake structure as any structure withdrawing water from a water of the U.S. if more than twenty-five (25) percent of the water withdrawn through the structure is used for cooling purposes. EPA estimates that the two MGD threshold would subject approximately 90 percent of all cooling water flows from new facilities to the proposed rule. EPA based this estimate on: (1) EPA's projected universe of new facilities that would be subject to the proposed rule; and (2) review of a limited set of data on percent of intake flow used for cooling that EPA drew from responses to the detailed questionnaires mailed to existing facilities in January 2000.

EPA believes that cooling water intake structure withdrawals that are at or below a two MGD threshold would generally affect only a very small proportion of a water body or, if the water body is very small, would have a localized impact. EPA believes that facilities, which because of their small quantity of cooling water use, either are unlikely to cause or have limited potential to cause adverse environmental impact need not be subject to national regulation. This is especially so because the Agency has limited information on such facilities with respect to cooling water usage and their potential for adverse impact. The Director may consider whether to address new facilities that use lesser amounts of cooling water on a case-by-case basis using best professional judgment.

In addition to a two MGD flow threshold, the Agency is considering higher flow thresholds including 5, 10, 15, 20, 25, and 30 MGD. To evaluate the amount of cooling water that would be covered under these alternative thresholds, EPA used data from its screener questionnaire sent to existing industries that use the largest amounts of cooling water and made a number of important assumptions. First, EPA assumed that new and existing facilities would use similar amounts of cooling water. The Agency notes this assumption may overestimate the percentage of flows at new electricity generating facilities that would be covered by the proposed rule as many of these facilities, if they intend to use waters of the U.S. for cooling, also intend to use technologies to minimize cooling water flow. For example, only three of the seven specific, planned electricity generating facilities for which EPA has information on cooling water system design would use more than 10 MGD. Second, EPA assumed that data in the screener survey on total intake flow could be used to represent cooling water flows. Finally, the Agency assumed that none of the facilities included in the screener survey used less than 25% of

their total intake flow for cooling. This last assumption should not affect statements about steam electric generating facilities as most of their intake flow is used for cooling. However, as manufacturing facilities in the screener survey may use significant amounts of process water, some portion of these facilities may not use 25% or more of their intake flow for cooling and, if they were new facilities, would not be within the scope of the proposed rule.

For comparison purposes, EPA first analyzed a two MGD threshold and estimated that it would subject up to 99.97 percent of all cooling water flows from these industries to the proposed rule. On an industry-specific basis, the percentage of flows covered by the rule would range from more than 99.99 percent in the electric utility industry to as much as 98 percent in the chemical industry.

Using a similar methodology, EPA estimates that a 10 MGD flow threshold would subject up to 99.67 percent of all cooling water flows in the industries that use the largest volumes of cooling water to the proposed rule. On an industry-specific basis, the percentage of flows covered by the rule would range from 99.95 percent in the electric utility industry to as much as 79 percent in the refining industry. EPA estimates that a twenty-five (25) MGD threshold would subject up to 99.1 percent of all cooling water flows from these industries to the proposed rule. On an industry-specific basis, the percentage of flows covered by the rule would range from 99.8 percent in the electric utility industry to as much as 65 percent in the chemical industry.

The Agency invites comment on the proposed two MGD flow threshold and the alternative flow thresholds discussed above. The Agency also invites comment on whether a higher threshold (such as 25 MGD) might be appropriate for a facility that uses 10 percent or less of a water body at critical low flow periods.

EPA is proposing to set the threshold at 2 MGD to ensure that almost all cooling water withdrawn from waters of the U.S. is covered by a national regulation. However, the Agency recognizes that there is little information currently available regarding the lower bound of withdrawals at which adverse environmental impact is likely to occur. Most case studies documenting impingement and entrainment from cooling water withdrawals in the past have focused on facilities withdrawing very large amounts of water (in most cases greater than 100 MGD). There is less information available on the impacts of withdrawals at any of the levels being considered for the MGD flow threshold. EPA is aware of impingement and entrainment studies at a facility in Michigan with a 20 MGD flow. EPA also is aware of at least one study of impingement and entrainment at a facility in New York State that proposed to withdraw 4.2 MGD. In this case, the Director estimated fish mortalities of 24,500 American Shad, 1.9 million river herring, 1200 striped bass and 23,000 white perch. The Agency invites commenters to provide any data they may have regarding impingement and entrainment rates associated with 2 MGD water withdrawals. The Agency also invites commenters to provide any data they may have regarding impingement and entrainment rates associated with an alternative flow threshold of 5 MGD. The Agency also invites commenters to provide any data they may have regarding impingement and entrainment rates associated with the alternative flow thresholds of 10 MGD, 15 MGD, 20 MGD, 25 MGD, and 30 MGD.

EPA invites comment on all aspects of using these proposed thresholds to establish the universe of facilities that would be subject to the BTA requirements of this proposed regulation.

In addition to the MGD flow threshold discussed above, EPA is considering whether it should add a flow threshold to address the potential for adverse environmental impact posed by facilities that withdraw less than 2 million gallons of water per day but are located on smaller water bodies. To provide an additional measure of protection for these water bodies, the Agency might also include facilities that withdraw less than 2 MGD in this rulemaking if they withdraw more than 1% of the mean annual flow of a freshwater river or stream; the mean annual volume of a lake or reservoir; or the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level for an estuary or tidal river. If the Agency were to include this additional flow threshold, language such as the following would be added at the end of the proposed § 125.81:

Or a design intake flow of greater than one (1) percent of the waterbody flow or volume (the mean annual flow of a freshwater river or stream; the mean annual volume of a lake or reservoir; or the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level for tidal rivers and an estuaries.

The Agency invites comment on this alternative flow threshold. The Agency also invites comment on whether it should include a higher threshold based on a facility's withdrawal as a percentage of waterbody flow or volume, such as five percent, 10 percent or 20 percent.

Should EPA decide to include a flow threshold based on a facility's withdrawal as a percentage of waterbody flow or volume, the Agency requests comment on whether it should establish an absolute minimum flow threshold (such as 50,000 or 100,000 gallons of waters of the U.S. used on a daily basis for cooling purposes) in conjunction with the one (1) percent of the water body flow or volume threshold described above. An absolute minimum gallon per day threshold could ensure that very small new facilities located on very small streams are not captured by the national regulation and, instead, are addressed by the Director, as appropriate, using best professional judgment on a case-by-case basis. If EPA added a minimum flow threshold to the part of the applicability criteria that relates to withdrawal of water by the facility, language such as the following would be added at the end of proposed § 125.81, as modified by the alternate regulatory language described in the preceding paragraph: “and greater than [100,000 gallons] per day.”

E. Must My Facility Have a Point Source Discharge Subject to an NPDES Permit?

Today's proposed rule would apply only to new facilities as defined in § 125.83 that have an NPDES permit or are required to obtain one because they discharge or might discharge pollutants, including storm water, from a point source to waters of the U.S. Requirements for minimizing the adverse environmental impact of cooling water intake structures would continue to be applied through NPDES permits.

Based on the Agency's review of existing facilities that employ cooling water intake structures, the Agency anticipates that most new facilities that would be subject to this rule will control the intake structure that supplies them with cooling water and discharge some combination of their cooling water and wastewater and storm water to a water of the U.S. through a point source regulated by an NPDES permit. In this scenario, the requirements for the cooling water intake structure would be applied in the facility's NPDES permit. In the event

that a new facility's only NPDES permit is a general permit for storm water discharges, the Agency anticipates that the Director would write an individual NPDES permit containing requirements for the facility's cooling water intake structure. The Agency invites comment on this approach for applying cooling water intake structure requirements to the facility. Alternatively, requirements applicable to cooling water intake structures could be incorporated into general permits. The Agency also invites comment on this approach.

In addition to the scenario described above, based on the Agency's review of existing facilities that employ cooling water intake structures, the Agency anticipates that some new facilities that have or are required to have an NPDES permit will not directly control the intake structure that supplies their facility with cooling water. For example, a number of facilities operated by separate entities might be located on the same, adjacent, or nearby property; one of these facilities might take in cooling water and then transfer it to other facilities prior to discharge of the cooling water to a water of the U.S. As another example, some facilities might use municipal water that is withdrawn from a water of the U.S. as their source for cooling water. The Agency invites comment on whether and how to prescribe section 316(b) requirements in these instances. In particular, the Agency invites comment on the proposal to regulate an intake structure if more than one-half of the flow serves new facilities and whether the threshold should be higher or lower. In addition, as in the previous paragraph, the Agency invites comment on a scenario in which the Director would place cooling water intake requirements in the new facility's NPDES permit and in the NPDES permit of the entity that controls the intake to ensure compliance with the cooling water intake requirements proposed today. This scenario is analogous to the Agency's finding of law in General Counsel Opinion No. 43 (June 11, 1976) that industrial users of a privately owned wastewater treatment plant are jointly and severally responsible for compliance with the provisions of the NPDES permit issued for the treatment plant. Alternatively, the Director could place cooling water intake requirements only in the permit of the facility that operates the structure. This would be administratively simpler and would limit permit requirements to the facility with direct operational control of the structure. The Agency also requests comment on this approach. If the new facility or the entity that controls the intake would have or be required to have only a general permit for storm water discharges, the Director would issue individual NPDES permit requirements, unless appropriate cooling water intake requirements were included in the general permit.

Should the requirements proposed today apply to only new facilities that control their intake structure, the Agency recognizes the possibility that some new facilities that have or are required to have an NPDES permit might restructure their operations to place control of the cooling water intake structure in an entity separate from the new facility withdrawing water for cooling purposes. In these situations, the Agency proposes to examine the operation of the new facility and the cooling water intake structure together. Should the Agency determine that the structure would be within the scope of this proposed rule but for the fact that it is not directly controlled by the new facility using the water, the Agency is considering applying the new facility requirements to the cooling water intake structure. The Agency invites comment on the policy merits of this position and how the Agency should prescribe cooling water intake structure requirements in this scenario.

Today's proposal applies only to facilities that are required to have an NPDES permit for direct discharges to surface waters. However, because similar adverse environmental impact can be caused by cooling water intake structures used by new facilities not subject to the NPDES program, the Agency encourages the Director to closely examine scenarios in which a new facility withdraws significant amounts of cooling water but does not have an NPDES permit. As appropriate, the Director should apply other legal requirements, such as section 404 or 401 of the Clean Water Act, the Coastal Zone Management Act, the National Environmental Policy Act, or similar State authorities to address adverse environmental impact caused by cooling water intake structures at those new facilities.

New facilities that EPA does not propose to regulate today, but that might cause similar impact, include the following:

• New facilities that withdraw cooling water from a water of the U.S. and discharge it along with other flows to a POTW for treatment and discharge;

• New facilities that purchase cooling water from a second facility that owns and operates the cooling water intake structure and withdraws the water from a water of the U.S. The new facility discharges the cooling water along with other flows to a POTW for treatment and discharge;

• New facilities that purchase cooling water from a municipal utility. The municipal utility owns and operates the cooling water intake structure and withdraws water from a water of the U.S. The new facility uses a significant amount of the municipal water for cooling purposes and discharges its cooling water to a POTW for treatment and discharge.

The Agency's concern regarding the environmental impact caused by cooling water intake structures at new facilities that would not be regulated by today's proposal is tempered somewhat by the following considerations. In each of the three scenarios just described, cooling water discharges would be sent to a publically owned treatment works. Based on responses to the Agency's section 316(b) screener questionnaire, the Agency estimates that the average cooling water use by a large utility steam electric generating facility is approximately 700 MGD; average water use by a large nonutility steam electric generating facility (

i.e.

, a facility that owns electric generating capacity but typically sells its electricity to a utility for distribution) is approximately 85 MGD. In most circumstances, a POTW would not accept such large volumes of cooling water because the flows from these facilities would likely dilute the waste stream reaching the POTW to the point where the POTW could face significant difficulty meeting its secondary treatment standard requiring removal of a fixed percentage of incoming biological oxygen demand. POTWs also enforce pretreatment requirements to ensure that heat in wastewater discharged does not interfere with biological treatment processes. Such large volumes of cooling water could potentially be too hot for the POTW to accept. In the third scenario presented in the preceding paragraph, the cost of using water treated to meet drinking water standards as cooling water is an additional issue. (The Agency notes that some steam electric generating facilities do use treated municipal

effluent

for cooling water, a distinct practice that has the potential to reduce use of waters of the U.S. for cooling water.) For manufacturing facilities, the potential for indirect discharge of cooling water might be greater. For example, the pulp and paper industry is the largest industrial process water user in the United States. In 1990 EPA surveyed 565 mills that manufacture pulp, paper, and paperboard as part of the Agency's development of effluent limitation

guidelines for this industry. Of the 565 pulp mills, 203 (36 percent) discharge a total volume of 680 MGD indirectly to municipal treatment works.

In order to address the potential concerns with cooling water intake by indirect dischargers, the Agency invites comment on an alternative where the Agency would regulate point sources that supply large volumes of cooling water to indirect dischargers (e.g., municipal utilities or other water suppliers) and place technology requirements to satisfy section 316(b) into the NPDES permit of the utility that controls the intake. The Agency is aware of the practical difficulties in requiring facilities that supply water to large numbers of customers to account for the specific end uses.

VI. Data Collection and Overview of Industries Potentially Subject to Proposed Rule

A. Overview

As discussed above, today's proposed rule would apply to new facilities with cooling water intake structures as defined in § 125.83 that are point sources requiring an NPDES permit. Generally, facilities that meet these criteria fall into two major groups, new steam electric generating facilities and new manufacturing facilities. These would include new facilities in the pulp and paper, chemical, petroleum, iron and steel, and aluminum manufacturing industries, which are known to be major users of cooling water.

B. New Steam Electric Generating Facilities

To identify planned utility and nonutility electric generating facilities that could potentially be affected by the section 316(b) new facility regulation, EPA used the NEWGen database, developed by Resource Data International (RDI). This database provides facility-level data on new power projects, including information on generating technology, plant capacity, electric interconnection, project status, date of initial commercial operation, and other operational details. The Agency evaluated each of the 466 facilities identified in the RDI database for the following criteria: “new plant” status, project status, location within the United States, plant type, anticipated date of initial commercial operation, and availability of cooling water intake structure information.

EPA's review identified 305 proposed new utility and nonutility electric generating facilities in the United States. Of these, 188 facilities will generate electricity using steam turbine or combined-cycle prime movers and would be potentially subject to regulation under section 316(b). (The term “prime mover” refers to the primary mechanism used by a facility to produce electricity.) To conduct various analyses required by statute and executive order (

e.g.

, Executive Order 12866), EPA examined facilities with a projected operational date of August 13, 2001, or later as potential new facilities that would be subject to this proposal. Ninety-four facilities meet this criterion. Fifty-six of the ninety-four facilities had reported information on their planned source and volume of cooling water to their permitting authorities. EPA based the analyses in support of this proposed regulation partially on those 56 facilities.

Eighty-eight percent of the 56 facilities examined plan to use combined-cycle

1

prime movers to generate electricity. Combined-cycle/cogeneration facilities are the second most common type of new facility, representing approximately 5 percent of the analyzed new facilities. In total, combined-cycle facilities represent more than 91 percent of the new capacity. The 56 facilities EPA identified will account for a total of 40,500 megawatts of additional generation capacity. On the basis of the capacity of these sample facilities and the total electric generation capacity forecasted by the Energy Information Administration (EIA), EPA predicts that 13 new facilities that will incur costs under this proposed regulation will be built over the next 10 years. For the period 2011 to 2020, EPA estimates that an additional 103 new facilities would be built but only 27 of these facilities would be in scope of today's proposed rule.

1

Most of the electricity in the United States is produced by steam turbine generating units. A combined-cycle facility uses both a combustion turbine prime mover and a steam turbine prime mover to increase the efficiency of the generating unit.

EPA further analyzed all 56 potential facilities to determine whether they would qualify as “new facilities” subject to this regulation as defined in § 125.83. Of the 56 facilities for which the source and volume of cooling water could be determined, only seven meet all of the proposed criteria for new facilities that are within the scope of this proposed regulation. Of these seven, one facility is proposing to locate a cooling water intake structure in a tidal river, four in nontidal rivers, and two in lakes. The remaining 49 facilities will either not withdraw cooling water from waters of the U.S. (45 facilities), will use cooling water withdrawn through an existing intake structure (three facilities), or are not expected to require an NPDES permit (one facility). These 49 facilities therefore would not be subject to the proposed section 316(b) new facility regulation. Forty-one of the 45 facilities that will not withdraw cooling water from a surface water source (approximately 91 percent) will use municipal water, ground water, or treated effluent, or a combination of the three, as a source of cooling water. The remaining four facilities are not expected to have a cooling water intake structure because they are air cooled. Based on the seven facilities that would be affected from the sample of 56 facilities and the Energy Information Administration forecast of total steam electric generation capacity additions, EPA projects 13 facilities would be affected over the next 10 years and an additional 27 facilities over the following 10 years. Therefore, the Agency's cost and regulatory impact analyses for the utility and non-utility electricity-producing industries focused on 40 electricity generating facilities over 20 years.

C. New Manufacturing Facilities

EPA identified prospective new facilities in the other industry sectors affected by today's proposed rule through a consultation process with the respective associations for those industries, review of independent market analyses, and projections based on the

Section 316(b) Industry Screener Questionnaire: Phase I Cooling Water Intake Structures.

EPA contacted the following industry associations: American Forest and Paper Association, American Petroleum Institute, National Petrochemical Refiners Association, American Iron and Steel Institute, Steel Manufacturers Association, Specialty Steel Industry of North America, the Aluminum Association of America, and the Chemical Manufacturers Association. The Agency questioned each of the associations about growth in its industry, including projections about construction of new facilities. EPA also reviewed independent forecasts for the major industry sectors likely to be affected by today's proposed rule to assess the number of new facilities likely to be built in the foreseeable future. Finally, EPA estimated the number of new manufacturing facilities likely to be within the scope of today's rule based on preliminary data addressing existing facilities.

EPA estimates that approximately 70 new manufacturing facilities that would be subject to today's proposed rulemaking will be built over the next 20 years (2001 to 2020). This number is

generally consistent with the data EPA reviewed through industry consultations and forecast reviews.

The American Forest and Paper Association (AF&PA) reported the possibility of one new facility being built in the next few years. In addition, AF&PA indicated that a second new facility is under consideration. These are the only prospective new facilities in the pulp and paper industry. AF&PA reports that paper production in the United States has been declining and that if additional production is required, it will most likely come from expansion or full utilization of existing facilities. Review of independent industry projections supports AF&PA's information. EPA is projecting that no new facilities in the pulp and paper industry will be built in the next 20 years that would be within the scope of this rule. EPA requests comment on this projection and any relevant data commenters may have.

In the United States, steel is typically produced by either large integrated mills that convert iron ore into steel or by minimills that employ an electric arc furnace (EAF) process to fabricate scrap steel into new product. The American Iron and Steel Institute (AI&SI) represents primarily the integrated steel producers, and the Steel Manufacturers Association (SMA) represents chiefly the minimills. These associations report that there has been a significant expansion in the number of new minimills in the past few years but that much of the immediate expansion is over. A limited number of new minimills will come on line in the foreseeable future, but new integrated mills are unlikely to be built. Agency review of independent industry projections supports this assessment. According to these projections, new steelmaking capacity soon will result mostly from new minimills coming on line. This is in keeping with long-term industry trends: the EAF share of the U.S. steel market has risen from 12 percent to 50 percent in the past three decades. Although minimills generally require large amounts of cooling water, they typically use closed-cycle recirculating systems with cooling towers. Production increases by integrated producers will most likely occur as a result of capacity expansion or improved efficiencies at existing facilities rather than new construction of integrated mills. EPA estimates that eight new minimills, as well as one cold-rolled steel sheet strip and bar mill, that might incur costs under this proposed rule will be built over the next 20 years.

The Aluminum Association of America (AAA) reports it is unlikely that new primary aluminum smelters will be built in the foreseeable future. The growth area in the aluminum industry is in secondary aluminum manufacturing—facilities that recycle aluminum rather than use aluminum ore. Review of independent aluminum industry projections reveals that significant growth in demand is expected soon, but it is not certain whether this demand will be met through construction of new facilities, expansion of existing plants, or increased capacity utilization at existing facilities. EPA estimates that four new aluminum facilities that might incur costs under this proposed rule will be built over the next 20 years.

The majority of petroleum refiners are represented by two organizations, the American Petroleum Institute (API) and the National Petrochemical Refiners Association (NPRA). API represents many of the large refiners, and NPRA represents some large and many of the small refiners. Both organizations report that it is unlikely that a new refinery will be built in the foreseeable future and note that expansion of refinery capacity will occur exclusively through growth of existing facilities. Moreover, the number of refineries is declining and competitive pressures have led to consolidations and mergers in the petroleum industry. Review of independent industry projections supports this conclusion and shows that during the period between January 1990 and January 1997, the number of operable refineries in the United States declined from 205 to 164. EPA estimates that no new facilities in the petroleum and coal products sector with costs under this regulation will be built over the next 20 years.

The chemical industry is one of the more diverse industry sectors in the U.S. and includes the largest number of individual facilities of the industries subject to today's proposed rule. The Chemical Manufacturers Association (CMA) reports that there is likely to be little expansion or development of new facilities in the chemical industry in the near future. CMA expects that near term growth in industry output will occur through changes in product lines or expansion of existing facilities. Review of independent industry projections discloses that the near term picture is for considerable restructuring and consolidation with moderate growth in the number of new facilities for the longer term. However, because the chemical industry sector is so large, even moderate growth will result in the addition of a considerable number of facilities. Moreover, many of the new facilities are likely to be small businesses as CMA estimates that 40 to 60 percent of its members are small businesses and the expectation is that this ratio will remain approximately the same. EPA expects that 56 new facilities in the chemical industry sectors that are subject to the requirements of this rule will be constructed within the next 20 years.

EPA has estimated that the above industries (including the electricity generating industry) represent approximately 5,000 to 6,000 existing facilities nationwide and are responsible for almost 99 percent of all the cooling water use in the United States. Today's proposed rule would also affect other industry sectors, including textile mill products; lumber and wood products; rubber and miscellaneous plastic products; stone, clay, glass, and concrete products; and transportation equipment. EPA did not undertake outreach to or survey these industry sectors in part because the Agency has determined that all these other industries, although constituting a large number of individual facilities, in aggregate withdraw approximately 1 percent or less of all cooling water used in the United States. As a result, even if there is a substantial increase in the number of new facilities in these industry sectors, EPA projects that few would be subject to today's proposed rule. Based on the Engineering and Economic Analysis document that EPA prepared while developing this proposal, EPA projects it is unlikely that there will be new facilities in any sectors other than electricity generation, primary metals, and chemicals that would be subject to the requirements of this rule over the next 20 years. EPA requests comment on this projection and any relevant data commenters may be able to provide.

VII. Environmental Impact Associated With Cooling Water Intake Structure

A. Overview

Based on estimates cited in the record for the Agency's previous section 316(b) regulations and guidance, power plants and industrial facilities in the United States withdrew approximately 70 trillion gallons of water from U.S. waters each year for cooling water purposes. Power plants alone account for approximately 80 percent of the total cooling water withdrawals, or about 60 trillion gallons of cooling water per year.

2

The withdrawal of such large

quantities of cooling water affects vast quantities of aquatic organisms annually, including phytoplankton,

3

zooplankton,

4

fish, shellfish, and many other forms of aquatic life. Aquatic organisms drawn into cooling water intake structures are either impinged on components of the cooling water intake structure or entrained in the cooling water system itself. In either case, a substantial number of these organisms are killed or subjected to significant harm as a result.

2

EPA anticipates updating these water usage estimates based on its survey questionnaire of

industrial facilities potentially subject to the section 316(b) regulation for existing facilities.

3

Phytoplankton are tiny, free-floating photosynthetic organisms suspended in the water column.

4

Zooplankton are small marine animals that consume phytoplankton and other zooplankton. Ichthyoplankton is a group of plankton composed of fish eggs and larvae.

Currently, many cooling water intake structures use some type of intake control technology. In most cases these technologies prevent debris from entering the cooling water system but do not protect aquatic organisms. The most common intake devices used in the steam electric generating industry, as well as other industries, are front-end trash racks (generally fixed bars) to prevent large debris from entering the system, followed by single-entry, single-exit vertical traveling screens (conventional traveling screens). It is also noteworthy, however, that between 1955 and 1997 the number of new steam electric generating facilities using closed-cycle recirculating cooling water systems increased from 25 percent to 75 percent, with a corresponding decrease in facilities using once-through systems.

5

Between 1975 and 1984 the number of steam electric generating facilities using closed-cycle recirculating systems increased 31 percent. This trend toward the use of closed-cycle recirculating systems is projected to continue as new facilities are built. Of the seven new generating facilities that would potentially be covered by this proposed rule and for which EPA has planning information, all seven plan to use closed-cycle recirculating cooling water systems. There is also evidence of a trend among new facilities to use less cooling water. All of the seven new facilities in EPA's analysis are projected to use less than 20 MGD.

5

EPA estimates that 84 percent of existing steam electric generating facilities started operation between 1955 and 1985. An additional 7 percent of these facilities started operation between 1985 and 1997.

B. What Types of Environmental Impacts Are Caused by Cooling Water Intake Structures?

EPA's May 1977

Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment

describes two primary ways in which cooling water intake structures can cause adverse environmental impact. The first is entrainment, which occurs when organisms are drawn through the cooling water intake structure into the cooling system. Organisms that become entrained are normally relatively small benthic,

6

planktonic,

7

and nektonic

8

forms of fish and shellfish species. As entrained organisms pass through a plant's cooling system they are subject to mechanical, thermal, and toxic stress. Sources of such stress include physical impacts in the pumps and condenser tubing, pressure changes caused by diversion of the cooling water into the plant or by the hydraulic effects of the condensers, sheer stress, thermal shock in the condenser and discharge tunnel, and chemical toxemia induced by antifouling agents such as chlorine. The mortality rate of entrained organisms is high.

6

Refers to bottom dwellers that are generally small and sessile (non-swimming), but can include certain large motile (able to swim) species. These species can be important members of the food chain.

7

Refers to free floating microscoic plants and animals, including fish eggs and larval stages with limited ability to swim. Plankton are also an important source of food for other aquatic organisms and an essential components of the food chain in aquatic ecosystems.

8

Refers to organisms with swimming abilities that permit them to move actively through the water column and to move against currents.

Another way in which intakes affect aquatic life is through the impingement of fish and other aquatic organisms on devices installed on the cooling water intake structure to prevent debris from entering the facility's cooling system. Organisms are trapped against these screening devices by the force of the water passing through the cooling water intake structure. Impingement can result in starvation and exhaustion (when organisms are trapped against an intake screen or other barrier at the entrance to the cooling water intake structure), asphyxiation (when organisms are forced against an intake screen or other barrier at the entrance to the cooling water intake structure by velocity forces that prevent proper gill movement or when organisms are removed from the water for prolonged periods of time), and descaling (when organisms are removed from an intake screen by a wash system).

In addition to impingement and entrainment losses associated with the operation of the cooling water intake structure, EPA is concerned about the overall degradation of the aquatic environment as a consequence of multiple intake structures operating in the same watershed or in the same reach or nearby reaches. EPA is also concerned about the potential impacts of cooling water intake structures located in or near habitat areas that support threatened or endangered species. Although limited data document the extent to which threatened or endangered species are harmed or killed due to impingement or entrainment, such impacts do occur. For example, EPA is aware that over a 9-year period more than 1,300 endangered sea turtles entered enclosed cooling water intake structure canals at one power plant

9

and that other plants impinge and entrain threatened delta smelt and endangered runs of chinook salmon and steelhead trout.

10

9

The plant developed a capture-and-release program in response to these events. Most entrapped turtles were captured and released alive; however, some mortality has occurred.

10

For example, Pittsburg and Contra Costa in the San Francisco Bay Delta area of California.

Furthermore, EPA is concerned about adverse environmental impact associated with the construction of new cooling water intake structures. Such adverse impacts primarily result from three factors—displacement of populations and habitat resulting from the physical placement of a new cooling waste intake structure in an aquatic environment, the impact on the aquatic environment of increased levels of turbidity, and the effects on aquatic biota and habitat associated with disposal of materials excavated during construction. Unlike operational impacts, adverse impact associated with construction need not be recurring in nature. Even where construction of a new cooling water intake structure takes a number of months, such construction could cause significant adverse impact. For example, the construction of a new intake structure could destroy or harm habitat value through the physical destruction or degradation of submerged lands or banks, or by stirring up sediments. Today's proposed rule includes requirements at § 125.84(f) under which the Director could address these effects in certain circumstances. Moreover, existing programs, such as the CWA section 404 program and programs under State law, include requirements that address many of the environmental impact concerns associated with the construction of new intakes.

C. What Entrainment and Impingement Impacts Caused by Cooling Water Intake Structures Have Been Documented?

Research of the available literature and section 316(b) demonstration studies obtained from NPDES permit files has identified numerous documented cases of impacts associated with impingement and entrainment and the subsequent effects of these actions on populations of aquatic organisms. For example, specific losses associated with individual steam electric generating facilities include 3 billion to 4 billion larvae and postlarvae per year

11

; 23 tons of fish and shellfish of recreational, commercial, or forage value lost each year

12

; and 1 million fish lost during a 3-week study period.

13

Several studies estimating the impact of entrainment on populations of key commercial or recreational fish have predicted declines in population size. Studies of entrainment at five Hudson River power plants predicted year-class reductions ranging from 6 percent to 79 percent depending on the fish species.

14

A modeling effort looking at the impact of entrainment mortality on the population of a selected species in the Cape Fear estuarine system predicted a 15 to 35 percent reduction in the species' population.

15

11

EPA, “Brunswick Nuclear Steam Electric Generating Plant of Carolina Power and Light Company, Historical Summary and Review of Section 316(b) Issues,” EPA Region IV, September 19, 1979.

12

EPA, “Findings and Determination under 33 U.S.C. Section 1326, In the Matter of Florida Power Corporation Crystal River Power Plant Units 1, 2, and 3, NPDES Permit No. FL0000159,” Environmental Protection Agency Region IV, December 2, 1986.

13

Nancy J. Thurber, and David J. Jude, “Impingement Losses at the D.C. Cook Nuclear Power Plant during 1975-1982 with a Discussion of Factors Responsible and Possible Impact on Local Populations,” Special Report No. 115 of the Great Lakes Research Division, Great Lakes and Marine Waters Center, The University of Michigan, 1985.

14

John Boreman and Phillip Goodyear, “Estimates of Entrainment Mortality for Striped Bass and Other Fish Species Inhabiting the Hudson River Estuary,”

American Fisheries Society Monograph

4:152-160, 1988.

15

EPA, Brunswick Nuclear Steam Electric Generating Plant of Carolina Power and Light Company, Historical Summary and Review of Section 316(b) Issues,” Environmental Protection Agency Region IV, 1979.

The following are among other more recent documented examples of impacts occurring in existing facilities as a result of cooling water intake structures. Also see the discussion of the benefits of today's proposed rule in Section X.B.

Brayton Point.

PG&E Generating's Brayton Point plant (formerly owned by New England Power Company) is located in Mt. Hope Bay, in the northeastern reach of Narragansett Bay, Rhode Island. Due to problems with electric arcing caused by salt drift and lack of fresh water for the closed-cycle recirculating cooling water system, the company switched Unit 4 from a closed-cycle recirculating to a once-through cooling water system in 1985. The modification of Unit 4 resulted in a 45 percent increase in cooling water intake flow at the plant. Studies designed to evaluate whether the cooling water intake structure was affecting fish species abundance trends found that Mt. Hope Bay experienced a progressively steady rate of decline in finfish species of recreational, commercial, and ecological importance.

16

In contrast, species abundance trends were relatively stable in adjacent coastal areas and portions of Narragansett Bay that are not influenced by the cooling water intake structure. Further strengthening the evidence that the intake of cooling water was contributing to the documented declines was the finding that the rate of population decline increased substantially with the full implementation of the once-through cooling mode for Unit 4. The modification of Unit 4 is estimated to have resulted in an 87 percent reduction in finfish abundance based on a time series-intervention model. These impacts were associated with both impingement and entrainment, as well as the thermal discharge of cooling water. Data indicate that annual entrainment at Brayton Point averages 4.9 billion tautog eggs, 0.86 billion windowpane eggs, and 0.89 billion winter flounder larvae each year. Using adult equivalent analyses, the entrainment and impingement of fish eggs and larvae in 1994 translated to a loss of 30,885, 20,146, and 96,507 pounds of adult tautog, windowpane, and winter flounder, respectively.

16

Mark Gibson, “Comparison of Trends in the Finfish Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to Operations of the New England Power Brayton Point Station,” Rhode Island Division Fish and Wildlife, Marine Fisheries Office, June 1995 and revised August 1996.

San Onofre Nuclear Generating Station.

The San Onofre Nuclear Generating Station (SONGS) is on the coastline of the Southern California Bight, approximately 2.5 miles southeast of San Clemente, California.

17

The marine portions of Units 2 and 3, which are once-through, open-cycle cooling systems, began commercial operation in August 1983 and April 1984, respectively. Since then, many studies have been completed to evaluate the impact of the SONGS facility on the marine environment.

17

Southern California Edison, “Report on 1987 Data: Marine Environmental Analysis and Interpretation, San Onofre Nuclear Generating Station,” 1988.

18

MRC, “Final Report of the Marine Review Committee to the California Coastal Commission,” Marine Review Committee, Document No. 89-02, August 1989.

Studies of kelp beds in nearshore waters in the vicinity of the SONGS facility determined that the operation of cooling water intake structures resulted in a 60 percent (80-hectare) reduction in the area covered by moderate-to high-density kelp.

18

Studies indicated that poor survival and lack of development of early life stages essential to the replenishment of the adult population resulted from increased turbidity of the waters in the vicinity of SONGS due to withdrawal of inshore turbid water for cooling purposes. The loss of kelp was also determined to be detrimental to fish communities associated with the kelp forests. For example, fish living close to the bottom of the San Onofre kelp bed experienced a 70 percent decline in abundance. Fish living in the water column in the impact areas had a 17 percent loss in abundance and a 33 percent decline in biomass relative to control populations. The abundance of large invertebrates in kelp beds also declined for many species, particularly snails.

In a normal (non-El Nino) year, some 110 tons of midwater fish (primarily northern anchovy, queenfish, and white croaker)

19

are entrained at SONGS, of which at least 41 percent are killed during plant passage. The fish lost include approximately 350,000 juveniles of white croaker, a popular sport fish; this number represents 33,000 adult individuals or 3.5 tons of adult fish. Within 3 kilometers of SONGS, the density of queenfish and white croaker in shallow-water samples decreased by 34 and 63 percent, respectively. Queenfish declined by 50 to 70 percent in deepwater samples.

19

S. Swarbrick and R.F. Ambrose, “Technical Report C: Entrapment of Juvenile and Adult Fish at SONGS,” prepared for the Marine Review Committee, 1989.

Existing and historical studies like those described in this section provide only a partial picture of the severity of environmental impact associated with cooling water intake structures. Most important, the methodologies for evaluating adverse environmental impact used in the 1970s and 1980s, when most section 316(b) evaluations were performed, were often inconsistent and incomplete. For example, some studies reported only gross fish losses; others reported fish losses based on species and life stage; still others reported percent losses of the associated population or subpopulation (

e.g.

,

young-of-year fish). Recent advances in environmental assessment techniques now provide better tools to monitor for impingement and entrainment and to detect impacts associated with the operation of cooling water intake structures.

D. What Constitutes Adverse Environmental Impact Under This Proposed Rule?

As discussed above, the 1977 section 316(b) draft guidance defined the term “adverse environmental impact.” It states that “[a]dverse aquatic environmental impacts occur whenever there would be entrainment or impingement damage as a result of the operation of a specific cooling water intake structure.” That definition also states, however, that “[t]he critical question is the magnitude of any adverse impact.” The guidance lists specific factors relevant for determining the long- and short-term magnitude of any adverse impacts.

20

The 1977 Draft Guidance established a process under which cooling water intake structures were evaluated on a case-by-case basis to determine the level of environmental impact occurring and the appropriate best technology available to minimize adverse environmental impact.

21

20

Under the 1977 Draft Guidance, the magnitude of any adverse impact should be estimated in terms of both short-term and long-term impact with reference to the following factors: (1) Absolute damage; (2) percent damage; (3) absolute and percentage damage to any endangered species; (4) absolute and percent damage to any critical aquatic organism; (5) absolute and percentage damage to commercially valuable and/or sport fisheries yield; and (6) whether the impact would endager (jeaopardize) the protection and propagation of a balanced population of shellfish and fish in and on the body of water from which the cooling water is withdrawn (long-term impact). (Draft Guidance, U.S. EPA, 1977, Definitions and Concepts p. 15).

21

For example, the 1977 Draft Guidance states “[t]he exact point at which adverse aquatic impact occurs at any given plant site or water body segment is highly speculative and can only be estimated on a case-by-case basis by considering the species involved, magnitude of the losses, years of intake operation remaining, ability to reduce losses, etc.” (Draft Guidance, U.S. EPA, 1977, p. 11).

The framework and definitions in the 1977 Draft Guidance recommend that facilities should initially determine the incremental environmental impact of each cooling water intake structure on the populations of affected species or organisms and that BTA be applied only where it is determined that such incremental impacts are deemed to constitute “adverse environmental impact.” However, both the decision process and the evaluation criteria contained in the guidance have proven very difficult to apply consistently. The initial determination of environmental impact has often relied on population modeling, which, given its inherent complexity, has yielded ambiguous or debatable results. One result has been that many section 316(b) permitting decisions have predominantly focused on determining whether a cooling water intake structure is causing an adverse environmental impact. Given that both the methods for making such determinations and the standard regarding what constitutes an “adverse” environmental impact were not precisely defined, permitting authorities have had to exercise significant judgment and focus significant time and effort to determine what requirements should be imposed under section 316(b).

In developing this proposal, EPA considered several alternatives for defining adverse environmental impact associated with the operation of cooling water intake structures. These alternatives are discussed below. EPA also considered whether a specific definition of adverse environmental impact should be included in the regulation or developed as guidance. The regulatory language in today's proposed rule does not include a definition of adverse environmental impact. However, the Agency is considering promulgating each of the alternatives discussed below as part of the final regulation and, thus, each should be viewed in a regulatory context. The Agency also might ultimately decide to publish one of these alternatives in guidance that supports the final rule. EPA is also considering taking no action regarding the definition of adverse environmental impact.

Though EPA is not proposing a definition of adverse environmental impact, the Agency did consider a number of alternatives for either defining adverse environmental impact or determining a threshold for the level of environmental impact deemed to be adverse. Consistent with this approach, EPA conceptualized adverse environmental impact in a manner that would not characterize the threshold for being considered “adverse” as the impingement or entrainment of a single organism, but also would not result in a threshold that is so high that it would allow for the impingement or entrainment of millions of organisms, larvae, or eggs. Thus, EPA considered adverse environmental impact as a level of impingement or entrainment of aquatic organisms that is recurring and nontrivial.

One approach EPA considered would be to define adverse environmental impact as the impingement or entrainment of one (1) percent or more of the aquatic organisms in the near-field area as determined in a 1-year study. Under this approach, the near field would be defined as that area immediately around the intake structure from which organisms are drawn onto the screens or into the cooling system. EPA considers the establishment of a one percent threshold a reasonable means to protect about 99 percent of the organisms in the water column under the influence of the cooling water intake structures. A threshold of one percent represents a reasonable approach for defining adverse impact and is consistent with the approach used by the water quality-based regulatory programs within EPA for developing the necessary levels of protection to safeguard aquatic communities. EPA seeks comment on this alternative. Regulatory language such as the following could be used to implement this approach:

Adverse environmental impact means the impingement or entrainment of one (1) percent or more of the aquatic organisms from the area around the cooling water intake structure from which organisms are drawn onto screens or other barriers at the entrance to a cooling water intake structure or into the cooling system, as determined in the Source Water Baseline Biological Characterization.

(See Section IX.A.1 for a discussion of the Source Water Baseline Biological Characterization.)

A second alternative for defining adverse environmental impact for purposes of section 316(b) would use the definition of adverse environmental impact provided in the 1977 Draft Guidance, which is discussed above. Under this approach, adverse environmental impact would be defined as impingement and entrainment and the key inquiry would be an assessment of the magnitude of such effects. EPA could clarify through guidance when the magnitude of environmental impact is great enough to be deemed adverse.

Under a third alternative EPA is considering, adverse environmental impact would be deemed to occur whenever aquatic organisms are impinged or entrained as a result of the operation of a cooling water intake. Under this alternative, “adverse environmental impact” could be defined as “any impingement or entrainment of aquatic organisms.” This approach would be similar to the approach that the State of New York has taken in implementing its section 316(b) program, based on the State's judgment that both impingement and entrainment result in harmful environmental effects that diminish valuable public

resources.

22

Such effects could have the potential to reduce the population of indigenous species; change the species mix because some species are more susceptible to impingement and entrainment than others; might increase nuisance species; harm and kill endangered and threatened species; damage critical aquatic organisms, including important elements of the food chain; and reduce commercial and sport fisheries. This approach also would provide a level of protection analogous to the level of protection provided by the Agency's criteria methodology for protecting aquatic life from toxic effects, particularly from acute lethality.

23 24

22

NYDEC, “Clean Water Act Section 316(b), statement provided to U.S. EPA at public meeting to discuss adverse environmental impacts resulting from cooling water intake structures,” New York State Department of Environmental Conservation, Division of Fish, Wildlife, and Marine Resources, June 29, 1998.

23

EPA,

Technical Support Document for Water Quality-based Toxics Control,

U.S. Environmental Protection Agency, Office of Water, EPA-823-B-94-005a, August 1994.

24

Advanced Notice of Proposed Rulemaking: Water Quality Standards Program, 63 FR 3672, July 7, 1998.

Yet another alternative would be to define adverse environmental impact in relation to reference sites for the type of ecosystem in which the facility proposes to locate the intake structure and then to evaluate the projected impact of the intake structure on the abundance, diversity, and other important characteristics of the aquatic community that would be expected to inhabit the site. This approach would be analogous to the Agency's recommended approach for the adoption of biocriteria into State water quality standards.

25 26 27 28 29

The Agency invites comment on implementation issues that might be associated with determining the nexus between the projected impacts of the cooling water intake structure and the reference conditions.

25

Michael T. Barbour

et al.

, “Measuring the attainment of biological integrity in the USA: a critical element of ecological integrity,”

Hydrobiologia

422/423:453-464, 2000.

26

EPA,

Biological Criteria: National Program Guidance for Surface Waters,

U.S. Environmental Protection Agency, Office of Water Regulations and Standards, EPA-440/5-90-004, April 1990.

27

EPA,

Biological Criteria: Technical Guidance for Streams and Small Rivers,

U.S. Environmental Protection Agency, Office of Water, EPA 822-B-96-001, May 1996.

28

EPA,

Lakes and Reservoir Bioassessment and Biocriteria: Technical Guidance Document,

U.S. Environmental Protection Agency, Office of Water, EPA 841-B-98-007, August 1998.

29

EPA,

Draft Estuarine and Coastal Marine Waters Bioassessment and Biocriteria Technical Guidance,

U.S. Environmental Protection Agency, Office of Water, July, 2000.

The Agency also requests comment on a definition of adverse environmental impact that would focus on (1) the protection of threatened, endangered, or otherwise listed species; (2) protection of socially, recreationally, and commercially important species; and (3) protection of community integrity, including structure and function. EPA is aware that the Utility Water Action Group intends to develop, and submit to EPA following peer review, one or more practical definitions of adverse environmental impact and the measures for assessing when adverse environmental impact is occurring. The measures may vary depending on the waterbody type. EPA will consider the output of this effort, if available in time, and as appropriate, as it develops the final rule.

Each of the preceding definitions of adverse environmental impact addresses impact on the aquatic environment. The Agency invites comment on whether it should define adverse environmental impact more broadly and consider nonaquatic adverse environmental impact as well. For example, some of the technologies that may be used to reduce impingement and entrainment may result in air emissions such as the drift of salts, other minerals or chemicals onto vegetation, potentially with harmful effects. Some technologies may reduce the efficiency of an electricity generating or manufacturing facility, potentially leading to increased energy consumption and increased emission of carbon dioxide or other “greenhouse” gases, and increased resource extraction activities that may have a harmful effect on lands and natural resources. Should the Agency decide to consider nonaquatic impact, it could do so in conjunction with any of the potential definitions of adverse environmental impact described above that address impact on the aquatic environment.

Finally, it is important to clarify and invite comment on the Agency‘s current interpretation of the relationship of adverse environmental impact under section 316(b) and the objective of section 316(a) to ensure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. The Agency considers the objective stated in section 316(b) to minimize adverse environmental impact from cooling water intake structures to be distinct from that of section 316(a) to ensure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. The Agency has long maintained that adverse environmental impact from cooling water intake structures must be minimized to the fullest extent practicable,

30

even in cases where it can be demonstrated that the standard applicable under section 316(a) is being met.

31 32

Thus the objective of section 316(b) is more protective than that of section 316(a). However, EPA also requests comment on adapting the section 316(a) standard for purposes of section 316(b) and defining adverse environmental impact as impacts likely to interfere with the protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife.

30

In re Brunswick Steam Electric Plant,

Decision of the General Counsel No. 41, June 1, 1976.

31

In re Public Service Co. of New Hampshire,

(Seabrook Station Units 1 and 2) (Decision of the Administrator) 10 ERC 1257, 1262 (June 17, 1977).

32

In re Central Hudson Gas and Elec. Corp.,

Decision of the General Counsel No. 63, July 29, 1977.

EPA invites comment on all aspects of these alternatives for defining adverse environmental impact associated with cooling water intake structures and whether such a definition should be included as part of the regulation or stated as guidance.

VIII. Best Technology Available for Minimizing Adverse Environmental Impact at New Facilities

A. What Is the Best Technology Available for Minimizing Adverse Environmental Impact at New Facilities?

1. What Are the Proposed and Alternative Regulatory Frameworks for Today‘s Proposed Rule?

Today‘s proposed rule would establish national minimum performance requirements for the location, design, construction, and capacity of cooling water intake structures at new facilities to minimize adverse environmental impact. Under the proposed rule, EPA would establish requirements for minimizing adverse environmental impact from cooling water intake structures based on the type of water body in which the intake structure is located, the location of the intake in the water body, the volume of water withdrawn, and the design intake velocity. EPA would also establish additional requirements or measures for location, design, construction, or capacity that might be necessary to minimize adverse environmental impact. The best technology available to minimize adverse environmental impact might constitute a technology suite, which would vary depending on the type of water body in which a cooling water intake structure is located as well as the location of the cooling water

intake structure within the water body. Under this proposal, EPA would set technology-oriented performance requirements; the Agency would not mandate the use of any specific technology.

Exhibit 1 displays the framework for EPA's proposed section 316(b) new facility rule. Previously, EPA solicited public comment on a three-tiered framework for existing facilities. The framework proposed today for new facilities has evolved from Tier 1 of that framework. Under the proposed rule, EPA would group water bodies into four categories: (1) freshwater rivers or streams, (2) lakes or reservoirs, (3) tidal rivers or estuaries; and (4) oceans. The Agency considers location to be the most important factor in addressing adverse environmental impact caused by cooling water intake structures. Today's proposed rule would define the term “freshwater river or stream” to mean a lotic (free-flowing) system that does not receive significant inflows of water from oceans or bays due to tidal action (see § 125.83). EPA proposes to define the term “lake” to mean any inland body of open water with some minimum surface area free of rooted vegetation and with an average hydraulic retention time of more than 7 days. Lakes may be natural water bodies or impounded streams, usually fresh, surrounded by land or by land and a man-made retainer (

e.g.

, a dam). Lakes may be fed by rivers, streams, springs, and/or local precipitation.

BILLING CODE 6560-50-P

EP10AU00.000

BILLING CODE 6560-50-C

EPA is proposing to define the term “reservoir” to mean a natural or constructed basin where water is collected and stored (see § 125.83). Consistent with CWA section 104(n)(4), EPA is proposing to define the term “estuary” as all or part of the mouth of a river or stream or other body of water having unimpaired natural connection with open sea and within which seawater is measurably diluted with fresh water derived from land. As estuaries are strongly affected by tidal action, EPA's proposing to specify further that the salinity of an estuary exceeds 0.5 part per thousand (by mass), but is less than 30 parts per thousand (by mass) (see § 125.83). EPA is proposing to define the term “tidal river” to mean the most seaward reach of a river or stream where the salinity is less than or equal to 0.5 parts per thousand (by mass) at a time of annual low flow and whose a surface elevation responds to the effects of coastal lunar tides (see § 125.83). Finally, EPA proposes to define the term “ocean” to mean marine open coastal waters with salinity greater than or equal to 30 parts per thousand (by mass) (see § 125.83).

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The Agency is not using the definition of “ocean” found at CWA 502(10) because that definition refers to the high seas beyond the contiguous zone and the marine environment within the contiguous zone. Impacts from cooling water intake structures are most likely to occur in ocean waters in the near coastal areas.

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Salinity values are based on the Venice System, a well-known estuarine zonation system. See EPA,

Draft Estuarine and Coastal Marine Waters Bioassessment and Biocriteria Technical Guidance,

U.S. Environmental Protection Agency, Office of Water, July, 2000.

The design and capacity of the intake structure are important factors that affect the velocity or speed at which the water passes through the screen or other barrier at the entrance to the cooling water intake structure.

Under today's proposed rule, minimum flow and velocity requirements would be applied based on the actual placement of the cooling water intake structure within the particular water body types. Because different water body types have different potential for adverse environmental impact, the requirements proposed to minimize adverse environmental impact would vary by water body type. Some would include minimum requirements in addition to flow and velocity. For example, estuaries and tidal rivers have the highest potential for adverse impact because they contain essential habitat and nursery areas for many species. Therefore, these areas require the most stringent minimum controls including measures in addition to flow and velocity requirements. In contrast to estuaries and tidal rivers, some lakes have low productive areas such as the profundal zone, which would have low potential for adverse environmental impact, thus requiring lesser minimum controls to minimize adverse environmental impact.

Under some scenarios, depending on the type of water body or where the intake structure is located within the water body, EPA is proposing to require additional design and construction technologies that would increase the survival rate of impinged biota or to further reduce the amount of entrained biota.

In general, the capacity requirement would restrict the maximum flow a facility may withdraw to a percentage of the annual mean flow or volume of the water body. For rivers, an additional requirement would limit the capacity of the cooling water intake structure so that it withdraws no more than a certain percentage of the lowest average seven-consecutive-day low flow with an average frequency of once in 10 years (7Q10). In some circumstances, EPA would also restrict the capacity of the cooling water intake structure to a level commensurate with that which could be attained by a closed-cycle recirculating system using minimized make-up and blowdown flows. After location, the flow or capacity of a cooling water intake structure is the primary factor affecting the entrainment of organisms, which is often considered the most difficult impact to control. Organisms entrained include small species of fish and immature life stages (eggs and larvae) of many species that lack sufficient mobility to move away from the area of the intake structure. Limiting the volume of the water withdrawn (flow) from a source can limit the potential for these organisms to be entrained.

Section 316(b) authorizes EPA to impose limitations on the volume of the flow of water withdrawn through a cooling water intake structure as a means of addressing “capacity.”

In re Brunswick Steam Electric Plant,

Decision of the General Counsel No. 41 (June 1, 1976). Such limitations on the volume of flow are consistent with the dictionary definition of “capacity”

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, the legislative history of the Clean Water Act

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, and the 1976 regulations.

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Id.

Indeed, as Decision of the General Counsel No. 41 points out, the major environmental impacts of cooling water intake structures are those affecting aquatic organisms living in the volumes of water withdrawn through the intake structure. Therefore, regulation of the volume of the flow of water withdrawn also advances the objectives of section 316(b).

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“Cubic contents; volume; that which can be contained.” Random House Dictionary of the English Language, cited in Decision of the General Counsel No. 41.

35

Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., at 196-7 (1973).

36

40 CFR 402.11(c) (definition of “capacity”), 41 FR 17390 (April 26, 1976).

Today's proposed rule would also establish requirements that address velocity. For most locations, a design intake velocity requirement would restrict the through-screen or through-technology velocity to 0.5 ft/s. Intake velocity is one of the key factors that affects the impingement of fish and other aquatic biota. Velocity is easily addressed during the design and construction phase of a cooling water intake structure. The appropriate design of the intake structure relative to intake flow can minimize velocity. Alternatively, the facility can install certain hard technologies (

e.g.

, wedge wire screens and velocity caps) to change the configuration of the structure so that the effects of velocity on aquatic organisms are minimized. However, EPA is aware that some stakeholders have expressed concern with generally imposing national requirements on velocity and have argued that this may even restrict a facility's flexibility in designing an intake structure that minimizes adverse environmental impact while meeting the needs of the facility. EPA requests comment on its proposed velocity limitation of 0.5 fps, including information on specific situations or technologies for which this limit would pose a problem.

When the intake structure is located within the littoral zone, EPA would broaden the suite of technologies a facility would be required to employ, as well as increase the stringency of the requirements. This would improve the survivability of impinged organisms and reduce the rate of entrained organisms, thus furthering the statutory objective of minimizing adverse environmental impact. In these situations the additional minimal controls are necessary to minimize adverse environmental impact because the littoral zone is generally the area where aquatic organisms are the most abundant and most susceptible to impingement and entrainment.

Today's proposed rule would provide sound direction to permit writers that specifies minimum technology requirements, targeted to particular types of water bodies, for use in section 316(b) determinations. This would help the Directors implement consistent, protective decisions. The requirements proposed in today's proposed rule are protective on a national level. However, as further discussed at VIII.A.7., EPA recognizes that an individual facility might have a unique or site-specific environmental characteristic such that the national requirements might not achieve the objective of minimizing adverse environmental impact. For example, a migratory species traveling past a particular cooling water intake structure at a facility that does not cause adverse environmental impact in the absence of such migrations.

It is the Agency's intent that permitting authorities familiar with the unique situation in their areas have the flexibility, on a case-by-case basis, to implement additional measures under this proposal to achieve the core requirement of section 316(b), which is to minimize adverse environmental impact. Measures that the Agency deems appropriate would include, but not be limited to, seasonal flow restrictions that result in short term plant shutdowns during spawning or migration periods. Additional control measures also might be needed to address multiple intakes on a water body or the presence of regionally important species (

e.g.

, commercially and recreationally valuable species or aquatic organisms ecologically significant to the structure and function of local aquatic communities). See proposed § 125.84(f). In addition, consistent with existing NPDES program requirements, EPA also proposes that the Director must include permit requirements relating to the location, design, construction or capacity of a cooling water intake structure at a new facility necessary to ensure attainment of water quality standards. See proposed § 125.84(g).

EPA invites comments on all aspects of the proposed regulatory framework to implement section 316(b) so as to ensure that individual permit decisions result in the minimization of adverse environmental impact and attainment of water quality standards.

EPA recognizes that the foregoing approach differs significantly from the site-specific approaches used in the past in implementing section 316(b). For example, EPA has not previously attempted to establish minimum flow or velocity requirements for broad classes of water bodies. However, based in large measure on the Agency's experience in attempting to implement section 316(b) on a wholly site-specific basis, the Agency is today proposing this new approach.

The existing case-by-case approach to section 316(b) decision-making has proven difficult to implement for several reasons. A variety of different types of steam electric generating facilities and many different categories of manufacturing facilities (including pulp and paper manufacturers, chemicals and allied products manufacturers, petroleum and coal products manufacturers, primary metals manufacturers, and 14 additional categories) use cooling water and may potentially have cooling water intake structures.

The historical case-by-case approach requires significant resources on the part of the regulatory authorities that must implement section 316(b) requirements. The historical decision-making process requires that each regulated facility must develop, submit, and refine studies that characterize or estimate potential adverse environmental impact. Such studies can take several years to complete and require the support of a multi-disciplinary team. In addition, given the iterative nature of the assessment process, industry as well as EPA regional and State regulatory authorities must expend significant resources assessing study plans and methods for characterizing the environmental impact occurring at each facility and evaluating those data to determine what constitutes BTA for each specific facility. For example, the assessment of data needs and sufficiency might involve site visits, inspections, follow-up information gathering, and study review and modification. The resource requirements of the historical approach have also served as a disincentive to revisiting section 316(b) permit conditions during each renewal (typically every 5 years). Given that most facilities that use cooling water intake structures became operational before 1980, EPA believes this reluctance to fully reconsider permit conditions in light of new technologies is a significant concern. On the other hand, EPA also recognizes that some stakeholders believe that there are advantages to a site-specific approach. These stakeholders believe that the potential for a cooling water intake structure to cause adverse environmental impact, and the specific technology that would best minimize such impacts at reasonable cost is highly dependent on site-specific factors. These include waterbody characteristics, the specific locations of the structure, which species are present, weather, and other relevant factors. These stakeholders believe a site-specific approach such as that which has been used historically may allow stakeholders and permitting authorities to identify technology options for minimizing adverse environmental impact at a particular site at significantly less cost than would be possible through implementation of consistent requirements, within broad environmental categories, stringent enough to minimize adverse environmental impact at all sites. Many industry stakeholders have indicated that in their view the costs of producing comprehensive site-specific studies in support of 316(b) regulatory compliance, while significant, has been money well spent.

The historical case-by-case approach to section 316(b) decision-making also might result in permitting decisions that are less consistent than they would be if national requirements were in place. The case-by-case approach results in less predictability regarding what is or may be required for a particular facility, which makes planning difficult for industry and leaves regulatory agencies uncertain about the appropriate requirements for particular water bodies or facilities. Without Federal regulations, Directors and States must look to Agency guidance and past permit actions to inform their decisions. Absent national requirements, State officials often lack authoritative guidance for their own regulatory efforts. Only a few NPDES-authorized States have specifically addressed cooling water intake structure technology in statutes or regulations. Some States and EPA regions have required significant section 316(b) studies to be performed by facilities, whereas in other cases determinations have been based on limited actual background and ecological data. Some stakeholders believe that the need for consistency and guidance for State officials need not be addressed only through binding regulations. These stakeholders believe that comprehensive guidance, that provides needed technical and methodological support to permit writers and facilities alike can, to a large extent, fulfill the same function while at the same time preserving flexibility to adopt cost effective approaches to minimize adverse environmental impact at a particular site.

EPA has already received suggestions from Stakeholders that the Agency adopt a more case-by-case approach to this proposed rule. Therefore, the

Agency also invites comment on a rule framework that would resemble the framework the Agency proposed in the 1970s. EPA would implement section 316(b) on a case-by-case, site specific basis, but the Agency would establish specific decision criteria that the Director would have to consider when determining the appropriate BTA for minimizing adverse environmental impact. First the Director would determine whether an adverse environmental impact is or is not occurring. If an impact is occurring, the Director would consider a number of factors in determining what would constitute BTA and whether the facility is minimizing adverse environmental impact from cooling water intake structures. Regulatory language like the following could be used to implement this approach:

The director must determine whether a cooling water intake structure is minimizing adverse environmental impact based on the consideration of:

(1) The composition and vulnerability of the biological communities within the cooling water intake structure's zone of influence;

(2) The importance of the source water body to the surrounding biological community, including the presence of spawning sites, nursery/forage areas, and areas necessary for critical stages in the life cycle of aquatic organisms;

(3) Potential impingement of aquatic organisms based on the design intake velocity;

(4) Potential entrainment of small aquatic organisms based on the intake water flow;

(5) Existing or potential recreational, commercial, and subsistence fishing, including finfishing and shellfishing;

(6) Other factors relating to the adverse environmental impact of the intake, as may be appropriate.

EPA invites comment on the case-by-case approach to determine BTA for minimizing adverse environmental impact.

One variation on this approach that might well balance the need to provide clarity and consistency with the need to allow for some site-specific flexibility would be to establish a rebuttable presumption that the requirements of the proposed rule (or some other set of uniform national requirements based on this proposal) reflect BTA, but then allow a new facility, at its option and with the full burden of proof resting on the facility, to provide a demonstration that due to site-specific conditions at the site some alternative technology or suite of technologies would minimize adverse environmental impact. Under this approach, the facility would be required to demonstrate during the permit proceeding that the facility will minimize adverse environmental impact without complying with some or all of the proposed requirements relating to flow, intake velocity, and additional design and construction technologies. Requests for alternate technology requirements would need to be accompanied by data and information that demonstrate clearly and conclusively that the facility will minimize adverse environmental impact without complying with the proposed requirements. If EPA were to adopt this approach, EPA would provide guidance to facilities and permit writers on available alternative technology requirements and the type of site-specific conditions under which they may be appropriate to minimize adverse environmental impact, and on factors to consider in determining whether a proposed set of alternative requirements would minimize adverse environmental impact. EPA would also address the type of documentation facilities would need to provide in order to support a request for alternative technology requirements based on site-specific conditions.

If EPA adopted such an approach, language such at the following would be added to the regulation:

It shall be presumed that the requirements of § 125.84(a) through (e) reflect the best technology available for minimizing adverse environmental impact for all facilities to which this regulation applies. However, any new facility subject to these regulations may request that alternative technology-based requirements be imposed in the permit based on site-specific conditions. Alternative requirements shall be approved only if:

(1) There is an applicable requirement under § 125.84(a) through (e);

(2) Data and information specific to the facility and the affected environment demonstrate clearly and convincingly that the facility will minimize adverse environmental impact by complying with the alternative requirements; and

(3) The alternative requirements will ensure compliance with sections 208(e) and 301(b)(1)(C) of the Clean Water Act.

The burden is on the facility requesting the alternative requirements to demonstrate clearly and convincingly that they will minimize adverse environmental impact and that the other requirements of (1) through (3) above are met.

This rebuttable presumption framework might also be integrated with components of the other options for site-specific flexibility as suggested by some stakeholders and discussed in this preamble, including the option of allowing some kind of balancing of costs with environmental benefits as part of the demonstration that an alternative technology would minimize adverse environmental impact and/or allow restoration or mitigation as part of a site-specific BTA determination. EPA requests comment on the rebuttable presumption approach and how it might best be implemented. Specifically, EPA requests comment on types of site-specific conditions under which alternative technology requirements may be appropriate to minimize adverse environmental impact, factors that should be considered in determining whether a proposed set of alternative requirements would minimize adverse environmental impact, and specific methodologies for assessing adverse environmental impact.

In addition to today's proposal, EPA is considering an alternative based in whole or in part on a zero-intake flow (or nearly zero, extremely low-flow) requirement commensurate with levels achievable through the use of dry cooling systems. Under this alternative, a zero or nearly zero-intake flow requirement based on the use of dry cooling systems would be the primary regulatory requirement in either (1) all waters of the U.S.; (2) within tidal rivers, estuaries, and the littoral zone of freshwater rivers, lakes reservoirs and oceans; or (3) within tidal rivers, estuaries, and within or near the littoral zone of freshwater rivers, lakes, reservoirs and oceans. The Agency is also considering subcategorizing the new facility regulation based on types or sizes of new facilities and location within regions of the country since climate may be one factor affecting the viability of dry cooling technologies. In this scenario, the Agency would require flow rates commensurate with use of dry cooling systems for certain types or sizes of new facilities, and/or new facilities in certain locations, based on the costs, efficiency, and consumption of energy that may be associated with reducing withdrawals from waters of the U.S. to a level commensurate with those achieved by dry cooling systems.

Dry cooling systems (towers) use either a natural or mechanical air draft to transfer heat from condenser tubes to air. In wet cooling systems that employ conventional wet cooling towers, cooling water that has been used to cool the condensers is pumped to the top of a cooling tower; as the heated water falls, it cools through an evaporative process and warm, most air rises out of the tower, often creating a vapor plume. Hybrid wet-dry cooling towers employ both a wet section and dry section and reduce or eliminate the visible plumes associated with wet cooling towers.

Dry cooling towers have several advantages over wet cooling towers. They do not consume water through evaporation, have no wastewater discharge to affect water quality, do not

cause drift of salt or other minerals, do not require the use and subsequent treatment of water conditioning chemicals or biocides, and do not create a vapor plume. Further, as plants employing dry cooling systems have no cooling water needs, they can be located near or in cities and other areas with great demand for electricity irrespective of the availability of large supplies of cooling water, thereby reducing costs and power losses associated with transmitting electricity over long distances. Dry cooling systems reduce the impingement and entrainment of aquatic organisms associated with cooling water use. For example, the State of New York estimates that compared to a wet/dry hybrid cooling system, use of a dry cooling system at a recently permitted 1,080 MW electricity generating facility would reduce projected annual fish mortality at the facility from 24,500 to 1,000 American Shad, from 1.9 million to 76,000 River Herring, from 1,200 to 50 Striped Bass, and from 23,000 to 950 White Perch.

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NYDEC, Interim Decision, Athens Generating Company, State of New York Department of Environmental Conservation, No: 4-1922-00055/00001, SPDES No: NY-0261009, June 2, 2000.

On the other hand, as dry cooling systems use air rather than water for cooling, dry cooling systems are generally less efficient than wet cooling systems. Dry cooling systems perform most efficiently in colder climates, where the temperature differential is greater between the process water and the air used for cooling, and are generally less efficient in warmer climates, though EPA is aware that such systems are currently operating under desert conditions where air temperatures frequently exceed 100°F for extended periods. Because dry cooling systems exhibit lower cooling efficiencies than wet systems, a dry cooling system would be larger than a wet system with a comparable cooling capacity. For example, a recent application filed with the State of New York for a 1000 MW power plant indicated that two air-cooled condensers would be needed to meet the cooling needs of the proposed project, each one approximately 160 feet by 430 feet and approximately 105 feet tall. For a wet-dry hybrid cooling system, two cooling towers would be needed, each one approximately 50 feet by 300 feet and 60 feet tall.

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Astoria Energy LLC Queens, New York Facility, Application for Certification of a Major Electric Generating Facility Under Article X of the New York State Public Service Law, Volume 1, June 2000.

Dry cooling systems can cost as much as three times more to install than a comparable wet cooling system. Dry cooling system operating costs have been reported to range from less than or comparable to wet systems to two or more times higher. For example, the Astoria Energy LLC Queens application filed with the State of New York indicated that a dry cooling system would cost $32 million more to install than a hybrid wet-dry cooling system and $29 million more than a once-through cooling system for a proposed 1000 MW plant. Operating costs would be $30 million less for the dry cooling system than the hybrid wet-dry system, and $19 million more than for a once-through cooling system.

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The State of New York estimates that use of a dry cooling system at the recently permitted 1,080 MW Athens Generating Company facility would cost approximately $1.9 million more per year, over 20 years, than a hybrid wet-dry cooling system for a project with a total projected cost of approximately $500 million. In addition, dry systems generally are perceived to impose an energy penalty as compared to wet cooling systems. However, there is some uncertainty regarding the precise energy costs or penalty associated with the different types of cooling systems. For example, at the Athens Generating Company facility, New York State officials estimate a 1.4 to 1.9 percent reduction in overall plant electrical generating capacity as a consequence of using a dry cooling system versus a hybrid wet-dry system.

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By contrast, the Astoria Energy Queens facility application estimates that a dry cooling system would save approximately 0.5 percent in energy costs as compared to a hybrid wet-dry cooling system. Other factors, including climatic conditions, may affect energy costs associated with a particular type of cooling system. It has been reported that plants using wet cooling systems in warm climates export more power than comparably sized plants using dry cooling systems. Likewise, a study of a pulverized coal plant in Denmark found net heat conversion efficiencies of 45.9 percent and 44.5 percent for the plant configured with a wet cooling tower and dry cooling tower respectively. This corresponds to an average energy penalty of about 3 percent for the dry cooling tower relative to the wet cooling towers.

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Changes in energy consumption associated with dry cooling would result in changed fuel consumption and therefore may result in changed emissions of greenhouse gases.

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Astoria Energy LLC Queens Facility Application.

40

NYDEC, Initial Post Hearing Brief, Athens Generating Company, L.P., State of New York, Department of Environmental Conservation, Case No. 97-F-1563, June 28, 1999.

41

Gordon R. Couch, “Coal-fired Power Generation—Trends in the 1990s,” IEA Coal Research, London, UK, 1997.

The Agency is aware that at this time dry cooling systems are currently in use at over 60 electrical generation facilities world wide; over 50 of these facilities are in North America. Moreover, plants using dry cooling demonstrate a considerable variety in prime mover technology including combined cycle, co-generation, and steam turbine, as well as diversity in fuels used including coal, wood, methanol, natural gas and waste. The operational facilities range in size from 1 MW to a 645 MW facility. In addition, two facilities using dry cooling have been recently permitted but are not yet operational, one with a 580 MW capacity, the other (Athens Generating Company) with a 1,080 MW capacity. Further, EPA has information that applications for nine additional plants using dry cooling systems are pending. These plants range in capacity from 170 MW to 1,100 MW.

At this time the Agency does not have sufficient information to make a decision on whether to implement a zero or near zero intake-flow requirement that would effectively require the use of dry cooling technology. EPA is inviting comment on factors which may favor or disfavor the use of dry cooling systems including any cost information associated with any of these factors. The Agency also invites comment on whether and how dry cooling could be a basis for BTA requirements. In particular, the Agency invites comment on whether the Agency should consider subcategorizing facilities proposed for regulation today and requiring flows based on dry cooling for those facilities of a certain size or in certain locations where dry cooling is a viable technology at an economically practicable cost. For example, for the types and sizes of facilities in areas where dry cooling has been employed at facilities in operation, permitted, or slated for construction, the Agency might determine that dry cooling is the best technology available to minimize adverse environmental impact. EPA also invites comment on regulatory approaches of this type based on hybrid wet-dry cooling rather than dry cooling.

In developing the regulatory framework proposed today, EPA considered an alternative under which

facility operators might have the flexibility to “trade” among components of BTA to potentially achieve equivalent reductions in adverse environmental impact at lower cost. For example, a facility operator who reduced flow below the requirements specified in today's proposal might then have the opportunity not to reduce velocity as specified, or to install fewer additional design technologies. The Agency invites comment on all aspects of an approach that would allow trading among the components of BTA.

EPA also is considering a regulatory framework that would apply the BTA requirements proposed for estuaries and tidal rivers to all facilities, regardless of their location. This would ensure that the same stringent controls are the nationally applicable minimum for all water body types. In addition, all facilities would have to implement technologies that maximize the survival of impinged adult and juvenile fish and minimize the entrainment of eggs and larvae, and comply with additional requirements established by the Director. Some stakeholders assert that an approach that establishes a uniform, stringent set of national BTA requirements is the only one permissible under section 316(b) as all parts of all waters of the U.S. require stringent BTA requirements in order to minimize adverse environmental impact. These stakeholders believe that section 316(b) is wholly technology-based, that cooling towers are the best technology available for minimizing adverse environmental impact, and that therefore, cooling towers must be the basis for BTA requirements nationally.

EPA invites comment on all aspects of the regulatory framework and the other approaches discussed herein.

Some stakeholders have suggested an alternative regulatory framework in which section 316(b) implementation is accomplished through site-specific examination of the risk of adverse environmental impact and (assuming the cooling water intake structure poses some reasonable risk of adverse environmental impact) site-specific evaluation of potential BTA technologies.

Under one approach, the framework of the site-specific alternative would consist of three tiers. In Tiers 1 and 2, the facility, in consultation with the Director, would assess the potential for risk of adverse environmental impact associated with the proposed cooling water intake structure. Tier 1 would be both a screening and an assessment tier that relies on existing information that is site-specific or relevant to the adverse environmental impact determination. Tier 2 would focus on collection and analysis of additional information collection activities, as necessary, to make the adverse environmental impact determination. In Tier 3, which would assume that the Director has found that the cooling water intake structure is reasonably likely to pose risk of adverse environmental impact, the facility would assess BTA alternatives, including an evaluation of costs and benefits. In each tier, the facility would bear the burden of generating data and analyses.

In Tier 1, the facility would examine the risk of adverse environmental impact using certain types of existing information, such as fisheries management data, multimetric biocriteria results, operational and design specifications for the proposed cooling water intake structure, or other pertinent and reliable information. The initial steps in the Tier 1 analysis would be (1) review of cooling water intake structure design and proposed operations, (2) selection of “designated important species,” (3) definition of a study population of designated important species, and (4) identification of existing or readily available information sources.

Selection of designated important species would be site-specific, taking into consideration such factors as the species' likely involvement with the cooling water intake structure and the representativeness of the species in relation to the aquatic community. Selection of designated important species would consider commercially and recreationally important species, listed threatened and endangered species, species otherwise identified for protection or management, and food web species.

Based on existing information (where existing information is scientifically valid and adequate to evaluate the potential effects of the cooling water intake structure), including an assessment of the planned cooling water intake structure's characteristics, its geographic/hydrological setting, the nature of the biological community, or other factors, the facility would make an initial determination as to whether the information is adequate, representative, and indicative of a low risk of adverse environmental impact. If the Director agrees that there is a low risk, the proposed cooling water intake structure would be BTA. If the Director finds the existing information insufficient or finds that the risk of adverse environmental impact is not low, the facility would proceed to Tier 2.

In determining whether there is a risk of adverse environmental impact, the Director would consider the appropriate level of biological significance to the individual species, which would generally be the population level. The Director would consider whether the cooling water intake structure effects pose a risk to the viability of the designated important species populations and their ability to support existing ecosystem functions. This would include adequate protection of (1) the structure and function of the aquatic community, (2) commercially and recreationally important species, and (3) threatened or endangered species.

In Tier 2, the facility would conduct field studies for one of two purposes, following two separate tracks. In Track A, a facility might conduct special studies to provide adequate information to make a Tier 1 determination of its reasonable potential to cause adverse environmental impact. In Track B, the facility might conduct information collection activities (such as population modeling), as necessary, to make a Tier 2 determination as to whether the cooling water intake structure is reasonably likely to cause adverse environmental impact. The facility would have primary responsibility for study design and implementation, subject to securing approval of the Director prior to commencing any study. The facility would have the option of volunteering to perform restoration measures and having those measures taken into account in evaluating the risk of adverse environmental impact.

If a facility completes Tier 2 and the Director determines that the proposed cooling water intake structure is not reasonably likely to cause adverse environmental impact, the cooling water intake structure would reflect BTA. If, on the other hand, a facility completes Tier 2 and the Director determines that the proposed cooling water intake structure is reasonably likely to cause adverse environmental impact, in Tier 3 the facility would assess a reasonable range of BTA alternatives. Facilities would have the opportunity to evaluate potentially feasible cooling water intake structure technologies to address the specific adverse environmental impact, and also would have the opportunity to develop new cooling water intake structure technologies. At its option, a facility could perform a benefit/cost analysis of the BTA candidate technologies. Otherwise, it could decide to offer a cooling water intake structure technology or technologies as BTA based on an initial performance assessment of their characteristics. If a facility proceeds with the cost/benefit analysis, BTA would be determined

through application of a “reasonably proportional” standard. Also, the facility could propose restoration measures to address the adverse environmental impact that could be used in place of, or as a supplement to, BTA.

Another site-specific approach suggested by stakeholders would allow new facilities applying for NPDES permits to have the option of performing studies necessary to make a site-specific BTA determination. This approach is comparable to the “rebuttable presumption” approach described above. The extent and nature of such studies would be determined by the proposed location of the cooling water intake structure vis-á-vis the location factors EPA has proposed as indicative of sensitivity. Proponents of this approach suggest that general study design requirements appropriate for different types of water bodies (

i.e.

, freshwater rivers, lakes, reservoirs, estuaries and tidal rivers, oceans, and the Great Lakes) and EPA could develop proposed intake structure locations, using information provided by state-of-the-art studies as conducted by the regulated community, research and academic institutions, government agencies, and others.

Under this alternative suggested by stakeholders, studies would be designed to predict likely entrainment and impingement effects, along with other environmental effects associated with a proposed cooling water intake structure configuration. The study would assess whether those predicted effects are of a magnitude such that the Director can conclude, after considering guidance that EPA would prepare, that the effects are not reasonably likely to be “adverse” to the affected aquatic population or community. In situations where the Director is unable to conclude, with reasonable certainty, that there is no reasonable likelihood of adverse environmental impact from the proposed cooling water intake structure configuration, he or she would compare the performance of the proposed alternative to the predicted performance of other reasonably available technologies relative to the design, location, construction, and capacity of the cooling water intake structure. The Director would also assess the costs and benefits (including the costs and benefits associated with other environmental effects) of those alternatives whose performance is comparable to that of the proposed alternative and would select as “BTA” that technology or technologies whose costs and benefits are reasonably related, taking into account the level of uncertainty in the available data. Consistent with this approach, EPA could develop guidelines for performing cost/benefit analyses that would minimize the need to collect extensive new data to characterize the value of resources for which there is not an existing market. These guidelines would facilitate reasonably consistent, cost-effective decisions under this approach.

This approach is premised on the conclusion that national standards and locational attributes alone cannot properly account for biological factors, which are inherently site-specific and that the best technology available for minimizing adverse environmental impact location also is site-specific. The stakeholders advocating this approach point out that among the factors that differ from site to site are the risk of entrainment and impingement posed by a given cooling water intake structure to different aquatic species and different life stages; site-and species-speci

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