# National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A01-28968 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 18, 2001 - **Citation:** 66 FR 65256 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9, 122, 123, 124, and 125 [FRL-7105-4] RIN 2040-AC34 National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: Today's final rule implements section 316(b) of the Clean Water Act (CWA) for new facilities that use water withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or other waters of the United States (U.S.) for cooling purposes. The final rule establishes national technology-based performance requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities. The national requirements establish the best technology available, based on a two-track approach, for minimizing adverse environmental impact associated with the use of these structures. Based on size, Track I establishes national intake capacity and velocity requirements as well as location- and capacity-based requirements to reduce intake flow below certain proportions of certain waterbodies (referred to as “proportional-flow requirements”). It also requires the permit applicant to select and implement design and construction technologies under certain conditions to minimize impingement mortality and entrainment. Track II allows permit applicants to conduct site-specific studies to demonstrate to the Director that alternatives to the Track I requirements will reduce impingement mortality and entrainment for all life stages of fish and shellfish to a level of reduction comparable to the level the facility would achieve at the cooling water intake structure if it met the Track I requirements. EPA expects that this final regulation will reduce impingement and entrainment at new facilities. Today's final rule establishes requirements that will help preserve aquatic organisms and the ecosystems they inhabit in waters used by cooling water intake structures at new facilities. EPA has considered the potential benefits of the rule; these 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. Benefits may also accrue at population, community, or ecosystem levels of ecological structures. The preamble discusses these benefits to the extent possible in qualitative terms. DATES: This regulation shall become effective January 17, 2002. For judicial review purposes, this final rule is promulgated as of 1:00 p.m. Eastern Standard Time (EST) on January 2, 2002, as provided in 40 CFR 23.2. ADDRESSES: The public record for this rule is established under docket number W-00-03. Copies of comments received, EPA responses, and all other supporting documents (except for information claimed as Confidential Business Information (CBI)) are available for review in the EPA Water Docket, East Tower Basement, Room EB-57, 401 M Street, SW., Washington, DC 20460. The record is available for inspection from 9:00 a.m. to 4:00 p.m. Monday through Friday, excluding legal holidays. For access to the docket materials, please call (202) 260-3027 to schedule an appointment. FOR FURTHER INFORMATION CONTACT: For additional technical information contact Deborah G. Nagle at (202) 260-2656. For additional biological information contact Debbi Hart at (202) 260-0905. For additional economic information contact Ghulam Ali at (202) 260-9886. The e-mail address for the above contacts is rule.316b@epa.gov. SUPPLEMENTARY INFORMATION: What Entities Are Regulated by This Action? This final rule applies to new greenfield (defined by example in section I. of this preamble) and stand alone facilities that use cooling water intake structures to withdraw water from waters of the U.S. and that have or require a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the CWA. New facilities subject to this regulation include those that have a design intake flow of greater than two (2) million gallons per day (MGD) and that use at least twenty-five (25) percent of water withdrawn for cooling purposes. Generally, facilities that meet these criteria fall into two major groups: new steam electric generating facilities and new manufacturing facilities. If a new facility meets these conditions, it is subject to today's final regulations. If a new facility has or requires an NPDES permit but does not meet the two MGD intake flow threshold or uses less than 25 percent of its water for cooling water purposes, the permit authority will implement section 316(b) on a case-by-case basis, using best professional judgment. This final rule defines the term “cooling water intake structure” to mean the total physical structure and any associated constructed waterways used to withdraw water from a water of the U.S. The cooling water intake structure extends from the point at which water is withdrawn from the surface water source up to and including the intake pumps. Today's rule does not apply to existing facilities including major modifications to existing facilities that would be “new sources” in 40 CFR 122.29 as that term is used in the effluent guidelines and standards program. Although EPA has not finished examining the costs of technology options at existing 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 compliance costs than new facilities. For example, existing facilities might need to upgrade or modify existing intake structures and cooling water systems to meet requirements of the type contained in today's rule, which might impose greater costs than use of the same technologies at a new facility. Retrofitting technologies at an existing facility might also require 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. Site limitations, such as lack of undeveloped space, might make certain technologies infeasible at existing facilities. Accordingly, EPA does not intend that today's rule or preamble serve as guidance for developing section 316(b) requirements for existing facilities. Permit writers should continue to apply best professional judgment in making case-by-case section 316(b) determinations for existing facilities, based on existing guidance and other legal authorities. EPA will address existing facilities fully in Phase II and Phase III rulemakings. The following table lists the types of entities that EPA believes are potentially subject to this final rule. This table is not intended to be exhaustive; rather, it provides a guide for readers regarding entities likely to be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria at § 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 in the preceding FOR FURTHER INFORMATION CONTACT section. Category Examples of regulated entities Standard Industrial Classification (SIC) Codes North American Industry Classification System (NAICS) Codes 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 (excluding offshore and coastal subcategories) 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, 2261 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, 2679 3221, 322121, 32213, 322121, 322122, 32213, 322291. Chemical and allied products 28 (except 2822, 2835, 2836, 2842, 2843, 2844, 2861, 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, 3357 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. Engineering, Accounting, Research, Management, and Related Services 8731 54171. Supporting Documentation The final regulation is supported by two major documents: 1. Economic Analysis of the Final Regulations Addressing Cooling Water Intake Structures for New Facilities (EPA-821-R-01-035), hereafter referred to as the Economic Analysis. This document presents the analysis of compliance costs, barrier to entry, and energy supply effects. In addition, the document provides an assessment of potential benefits. 2. Technical Development Document for the Final Regulations Addressing Cooling Water Intake Structures for New Facilities (EPA-821-R-01-036), hereafter referred to as the Technical Development Document. This document presents detailed information on the methods used to develop unit costs and describes the set of technologies that may be used to meet the rule's requirements. How To Obtain Supporting Documents You can obtain the Economic Analysis and Technical Development Document from the Agency's 316(b) website (http://www.epa.gov/ost/316b). The documents are also available from the National Service Center for Environmental Publications, P.O. Box 42419, Cincinnati, OH 45242-2419; telephone (800) 490-9198 and the Water Resource Center , U.S. EPA, 1200 Pennsylvania Avenue, N.W. (RC 4100), Washington D.C. 20460 (202) 260-2814. Organization of This Document I. Scope of This Rulemaking A. What Is a New Facility? B. What Is a Cooling Water Intake Structure? C. What Cooling Water Use and Design Intake Flow Thresholds Result in a New Facility Being Subject to This Final Rule? D. Does This Rule Apply to My Facility If It Does Not Have a Point Source Discharge Subject to an NPDES Permit? E. What Requirements Must I Meet Under the Final Rule? II. Legal Authority, Purpose and Background of Today's Regulation A. Legal Authority B. Purpose of Today's Regulation C. Background III. Environmental Impact Associated With Cooling Water Intake Structures IV. Summary of the Most Significant Revisions to the Proposed Rule A. Data Updates B. Regulatory Approach V. Basis for the Final Regulation A. Major Options Considered for the Final Rule B. Why EPA Is Establishing EPA's Preferred Two-Track Option as the Best Technology Available for Minimizing Adverse Environmental Impact? C. Why EPA Is Not Adopting Dry Cooling as the Best Technology Available for Minimizing Adverse Environmental Impact? D. Why EPA Is Not Accepting the Industry Two-Track Approach in Full VI. Summary of Major Comments on the Proposed Rule and Notice of Data Availability (NODA) A. Scope/Applicability B. Environmental Impact Associated With Cooling Water Intake Structures C. Location D. Flow and Volume E. Velocity F. Dry Cooling G. Implementation-Baseline Biological Characterization H. Cost I. Benefits J. Engineering and Economic Analysis Limitations K. EPA Authority L. Restoration VII. Implementation A. When Does the Rule Become Effective? B. What Information Must I Submit to the Director When I Apply for My New or Reissued NPDES Permit? C. How Will the Director Determine the Appropriate Cooling Water Intake Structure Requirements? D. What Will I Be Required to Monitor? E. How Will Compliance Be Determined? F. What Are the Respective Federal, State, and Tribal Roles? G. Are Permits for New Facilities Subject to Requirements Under Other Federal Statutes? H. Alternative Requirements VIII. Economic Analysis A. Electric Generation Sector B. Manufacturing Sector C. Economic Impacts D. Cost and Economic Impacts of Other Alternatives IX. Potential Benefits Associated With Reducing Impingement and Entrainment X. Regulatory Requirements A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Unfunded Mandates Reform Act D. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. 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 13175: Consultation and Coordination With Indian Tribal Governments I. Executive Order 13158: Marine Protected Areas J. Executive Order 13211 (Energy Effects) K. National Technology Transfer and Advancement Act L. Plain Language Directive M. Congressional Review Act I. Scope of This Rulemaking Today's final rule establishes technology-based performance requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities under section 316(b) of the Clean Water Act. The rule establishes the best technology available for minimizing adverse environmental impact associated with the use of these structures. Today's final rule also partially fulfills EPA's obligation to comply with a consent decree entered in the United States District Court, Southern District of New York in Riverkeeper Inc., et al. v. Whitman , No. 93 Civ. 0314 (AGS). (For a more detailed discussion of the consent decree, see II.C.2). This final rule applies to new greenfield or stand alone facilities: (1) that use a newly constructed cooling water intake structure, or a modified existing cooling water intake structure whose design capacity is increased that withdraws water from waters of the U.S.; and (2) that has or is required to have a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the CWA. Specifically, the rule applies to you if you are the owner or operator of a facility that meets all of the following criteria: • Your greenfield or stand alone facility meets the definition of new facility specified in § 125.83 of this rule; • Your new facility uses a newly constructed or modified existing cooling water intake structure or structures, or your facility obtains cooling water by any sort of contract or arrangement with an independent supplier who has a cooling water intake structure; • 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. If a new facility meets these conditions, it is subject to today's final regulations. If a new facility has or requires an NPDES permit but does not meet the two MGD intake flow threshold or the twenty-five percent cooling water use threshold, it is not subject to permit conditions based on today's rule; rather, it is subject to permit conditions implementing section 316(b) of the CWA set by the permit director on a case-by-case basis, using best professional judgment. A. What Is a New Facility? A new facility subject to this regulation is any facility 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 January 17, 2002; and uses either a newly constructed cooling water intake structure, or an existing cooling water intake structure whose design capacity is increased; or obtains cooling water by any sort of contract or arrangement with an independent supplier who has a cooling water intake structure. The term “commence construction” is defined in 40 CFR 122.29(b)(4). As stated above, this rule applies to 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 (see 40 CFR 122.29(b)(1)(i) and (ii)). 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 (see 40 CFR 122.29(b)(1)(iii)). An example of total replacement is as follows: The power plant or manufacturer demolishes the power plant or manufacturing facility and builds a new plant or facility in its place. The pumps of the existing cooling water intake structure are replaced with new pumps that increase design capacity to accommodate additional cooling water needs, but the intake pipe is left in place. In this situation, the facility would be a new facility. Modifications to an existing cooling water intake structure that do not serve the cooling water needs of a greenfield or stand-alone facility in 40 CFR 122.2 and 122.29(b)(1), (2), and (4) (i.e., a facility that meets the definition of new source or new discharger and commences construction after the effective date of the rule) do not constitute a new facility subject to this rule. Thus, the definition of new facility under this rule is narrower than the definition of new source under section 306 of the CWA. The definition of new facility also requires that the greenfield or stand-alone facility use “a newly constructed cooling water intake structure or an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling water.” This means a facility that would otherwise be a “new facility” would not be treated as a new facility under this rule if it withdraws water from an existing cooling water intake structure whose design capacity has not been increased to accommodate the intake of additional cooling water. Routine maintenance and repair, such as replacement of pumps that does not increase the capacity of the structure, cleaning in response to biofouling, and repair or replacement of moving parts at a cooling water intake that is part of a greenfield or stand-alone facility, and that occur simply for operation and maintenance purposes, would not be a modification of that intake structure. One way to distinguish whether replacement of the pipes or the pumps is for maintenance and repair purposes or whether it is to accommodate construction of a new facility is to determine whether the replacement increases the original design capacity. Today's rule specifies that changes to a cooling water intake structure are considered modifications for purposes of this rule only if such changes result in an increase in design capacity. Thus, routine maintenance or repair of the cooling water intake structure, including the pumps, that does not result in an increase in design capacity does not modify a cooling water intake structure. However, if a change is made to the cooling water intake structure, including the pumps, that increases design capacity to any extent, then the cooling water intake structure has been modified; use of this structure by a greenfield or stand-alone facility would make the facility a new facility subject to this rule. B. What Is a Cooling Water Intake Structure? For the purposes of this rule a “cooling water intake structure” is defined as the total physical structure and any associated constructed waterways used to withdraw water from waters of the U.S. The cooling water intake structure extends from the point at which water is withdrawn from waters of the U.S. up to and including the intake pumps. EPA has defined “cooling water” as water used for contact or noncontact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content. The Agency has specified that the intended use of cooling water is to absorb waste heat from production processes or auxiliary operations. In addition, for the final rule EPA has amended the definition of cooling water to ensure that the rule does not discourage the reuse of cooling water as process water. As such, heated cooling water that is subsequently used in a manufacturing process is considered process water for the purposes of calculating the percentage of a new facility's intake flow that is used for cooling purposes. C. What Cooling Water Use and Design Intake Flow Thresholds Result in a New Facility Being Subject to This Final Rule? This rule applies to new facilities that (1) withdraw cooling water from waters of the U.S. and use at least twenty-five (25) percent of the water withdrawn for cooling purposes and (2) have a cooling water intake structure with a design intake capacity of greater than or equal to two (2) million gallons per day (MGD) of source water. See 40 CFR 125.81 of this rule. The percentage of total water withdrawn that is used for cooling purposes is to be measured on an average monthly basis over a period of one year. See 40 CFR 125.81(c) of this rule. A new facility meets the 25 percent cooling water use threshold if, on the basis of the new facility's design when measured over a period of one year, any monthly average percentage of cooling water withdrawn is expected to equal or exceed 25 percent of the total water withdrawn. Waters of the U.S. include the broad range of surface waters that meet the regulatory definition at 40 CFR 122.2, which can include lakes, ponds, reservoirs, nontidal rivers or streams, tidal rivers, estuaries, fjords, oceans, bays, and coves. Some commenters questioned whether the discussion of cooling ponds in the preamble to the proposal (65 FR 49067, col. 2) meant that EPA considers cooling ponds to be “waters of the United States.” EPA did not intend that discussion to change the regulatory status of cooling ponds. Cooling ponds are neither categorically included nor categorically excluded from the definition of “waters of the United States” at 40 CFR 122.2. EPA interprets 40 CFR 122.2 to give permit writers discretion to regulate cooling ponds as “waters of the United States” where cooling ponds meet the definition of “waters of the United States.” The determination whether a particular cooling pond is or is not “waters of the United States” is to be made by the permit writer on a case-by-case basis, informed by the principles enunciated in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, 531 U.S. 159 (2001). D. Does This Rule Apply to My Facility If It Does Not Have a Point Source Discharge Subject to an NPDES Permit? Today's final rule applies 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 United States. Requirements for minimizing the adverse environmental impact of cooling water intake structures will continue to be applied through NPDES permits. E. What Requirements Must I Meet Under the Final Rule? Today's final rule establishes a two-track approach for regulating cooling water intake structures at new facilities. Track I establishes uniform requirements based on facility cooling water intake capacity. Track II provides dischargers with the opportunity to establish that alternative requirements will achieve comparable performance. The regulated entity has the opportunity to choose which track it will follow. The Track I and Track II requirements are summarized below. Under Track I, new facilities with a design intake flow equal to or greater than 10 MGD, must meet the following requirements: (1) Cooling water intake flow must be at a level commensurate with that achievable with a closed-cycle, recirculating cooling system; (40 CFR 125.84(b)(1)) (2) Through-screen intake velocity must be less than or equal to 0.5 feet per second; (40 CFR 125.84(b)(2)) (3) Location- and capacity-based limits on proportional intake flow must be met (for fresh water rivers or streams, intake flow must be less than or equal to 5 percent of the mean annual flow; for lakes or reservoirs, intake flow may not disrupt natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies); for estuaries or tidal rivers, intake flow must be less than or equal to 1 percent of the tidal excursion volume; for oceans, there are no proportional flow requirements); (40 CFR 125.84(b)(3)) and (4) Design and construction technologies for minimizing impingement mortality and entrainment must be selected and implemented if certain conditions exist where the cooling water intake structure is located. (40 CFR 125.84(b)(4) and (5)) Under Track I, new facilities with a design intake flow equal to or greater than 2 MGD, but less than 10 MGD, must meet the following requirements: (1) Through-screen intake velocity must be less than or equal to 0.5 feet per second; (40 CFR 125.84(c)(1)) (2) Location- and capacity-based limits on proportional intake flow must be met (for fresh water rivers or streams, intake flow must be less than or equal to 5 percent of the mean annual flow; for lakes or reservoirs, intake flow may not disrupt natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies); for estuaries or tidal rivers, intake flow must be less than or equal to 1 percent of the tidal excursion volume; for oceans, there are no proportional flow requirements); (40 CFR 125.84(c)(2)) and (3) Design and construction technologies for minimizing impingement mortality must be selected if certain conditions exist where the cooling water intake structure is located 125.84(c)(3); and design and construction technologies for minimizing entrainment must be selected and implemented. (40 CFR 125.84(c)(4)) Under Track II, new facilities must meet the following requirements: (1) Employ technologies that will reduce the level of adverse environmental impact to a comparable level to that which would be achieved under the Track I requirements (as demonstrated in a Comprehensive Demonstration Study); (40 CFR 125.84(d)(1)) (2) The same proportional intake flow limitations as in Track I, based on the intake source water, must be met; (40 CFR 125.84(d)(2)). Section IV.B and V. of this preamble provides a more detailed discussion of the requirements included under this two-track approach. The two-track approach provides new facilities with a well-defined set of requirements that constitute best technology available (BTA) for minimizing adverse environmental impact and can be implemented relatively quickly. This approach also provides flexibility to operators who believe alternative or emerging technologies would be just as effective at reducing impingement and entrainment. II. Legal Authority, Purpose and Background of Today's Regulation A. Legal Authority Today's final rule is issued under the authority of sections 101, 301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, and 1370. This rule partially fulfills the obligations of the U.S. Environmental Protection Agency (EPA) under a consent decree in Riverkeeper Inc., et al. v. Whitman, United States District Court, Southern District of New York, No. 93 Civ. 0314 (AGS). B. Purpose of Today's 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 (BTA) for minimizing adverse environmental impact. Today's final rule defines a cooling water intake structure as the total physical structure, including the pumps, and any associated constructed waterways used to withdraw water from waters of the U.S. Cooling water absorbs waste heat from processes employed or from auxiliary operations on a facility's premises. Single cooling water intake structures might have multiple intake bays. Today's final rule establishes requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities that withdraw at least two (2) million gallons per day (MGD) and use at least twenty-five (25) percent of the water they withdraw for cooling purposes. Today's final rule establishes best technology available for minimizing adverse environmental impact associated with the intake of water from waters of the U.S. at these structures. See part III for further discussion of the environmental impact associated with cooling water intake structures. C. Background 1. The Clean Water Act The Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), 33 U.S.C. 1251 et seq. , seeks to “restore and maintain the chemical, physical, and biological integrity of the nation's waters.” 33 U.S.C. 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 National Pollutant Discharge Elimination System (NPDES) permits that regulate the discharge of pollutants; and (3) requirements for EPA to develop effluent limitation guidelines and standards and for States to develop water quality standards that are the basis for the limitations required in NPDES permits. Today's final rule implements section 316(b) of the CWA as it applies to “new facilities” as defined in this rule. 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 withdraw water from the waters of the United States for cooling through a cooling water intake structure and are point sources subject to an NPDES permit. Conditions implementing section 316(b) are included in NPDES permits and will continue to be included in NPDES permits under this final 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 limitation 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 or combination of pollutants from a point source into waters of the U.S. Forty-four 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 by requiring dischargers to meet effluent limitations and other permit conditions. Effluent limitations may be based on promulgated federal effluent limitation 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 required. 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 limitation 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 limitation 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, consideration of various economic tests appropriate to each level of control, and other factors identified in sections 304 and 306 of the CWA (such as non-water quality environmental impacts including energy impacts). EPA has promulgated regulations setting effluent limitation guidelines and standards under sections 301, 304, and 306 of the CWA for more than 50 industries. See 40 CFR parts 405 through 471. Among these, EPA has established effluent limitation 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 manufacturing, 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 impacts and energy requirements. As stated above, a “new source” under CWA section 306 applies to a broader set of facilities than the group of facilities subject to this rule. 2. Consent Decree Today's final rule partially fulfills EPA's obligation to comply with an amended Consent Decree entered in the United States District Court, Southern District of New York, in Riverkeeper Inc., et al. v. Whitman, 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 regulation by August 13, 2001. Under subsequent orders and an amended consent decree, EPA has divided the rulemaking into three phases and is working under new deadlines. In addition to taking final action on this rule governing new facilities by November 9, 2001, EPA must propose regulations for, at a minimum, existing power plants that use large volumes of cooling water by February 28, 2002, and take final action 18 months later. EPA must propose regulations for, at a minimum, smaller-flow power plants and factories in four industrial sectors (pulp and paper making, petroleum and coal products manufacturing, chemical and allied manufacturing, and primary metal manufacturing) by June 15, 2003. 3. What Prior EPA Rulemakings 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 argued 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. 4. How Is Section 316(b) Being Implemented Now? Since the Fourth Circuit remanded EPA's section 316(b) regulations in 1977, NPDES permit authorities have made decisions implementing section 316(b) on a case-by-case, site-specific basis. EPA published draft 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 draft guidance describes the studies recommended for evaluating the impact of cooling water intake structures on the aquatic environment and recommends 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 for minimizing 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 for minimizing 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. The Director's determinations of whether the appropriate studies have been performed or whether a given facility has minimized adverse environmental impact have often been subject to challenges that can take a long time to resolve and may impose significant resource demands on permitting agencies, the public, and the permit applicant. 5. Proposed New Facility Rule On August 10, 2000, EPA published proposed requirements for cooling water intake structures at new facilities to implement section 316(b) of the Clean Water Act. EPA proposed a tiered approach for reducing adverse environmental impact, with three degrees of stringency based on EPA's view of the relative vulnerability of each category of waterbody. EPA received numerous comments and data submissions concerning the proposal. See 65 FR 49060. 6. Notice of Data Availability On May 25, 2001, EPA published a Proposed Rule Notice of Data Availability (NODA). This notice presented a summary of the data EPA had received or collected since proposal, an assessment of the relevance of the data to EPA's analysis, some modified technology options suggested by commenters, and an alternative regulatory approach suggested by a trade group representing the utility industry as well as EPA's ideas about how it might modify this suggested approach. See 66 FR 28853. On July 6, 2001, EPA reopened the comment period for certain documents and issues related to those documents. See 66 FR 35572. 7. Public Participation EPA has worked extensively with stakeholders from the industry, public interest groups, State agencies, and other Federal agencies in the development of this final rule. In addition to comments received during the comment periods of the original proposal, the NODA, and the reopened comment period for certain documents referenced in the NODA, EPA conducted two public meetings: in June 1998, in Arlington, Virginia (63 FR 27958) and in September, 1998, in Alexandria, Virginia (63 FR 40683). In addition, in September 1998, EPA staff participated in a technical workshop sponsored by the Electric Power Research Institute on issues relating to the definition and assessment of adverse environmental impact. EPA staff have participated in other industry conferences, met upon request on numerous occasions with industry representatives, and met on a number of occasions with representatives of environmental groups. EPA has also met with stakeholders, attended conferences and held workshops concerning topics related to the existing source rulemaking effort. In the months leading up to publication of the proposed rule, EPA conducted a series of stakeholder meetings to review the draft regulatory framework for the proposed rule and invited stakeholders to provide their recommendations for the Agency's consideration. EPA managers have met with the Utility Water Act Group, Edison Electric Institute, representatives from an individual utility, and with representatives from the petroleum refining, pulp and paper, and iron and steel industries. EPA conducted meetings with environmental groups attended by representatives from between 3 and 15 organizations. EPA also met with the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) and, with the assistance of ASIWPCA, conducted a conference call in which representatives from 17 states or interstate organizations participated. After publication of the proposed rule, EPA continued to meet with stakeholders at their request. These meetings are summarized in the record. III. Environmental Impact Associated With Cooling Water Intake Structures The proposed rule provided an overview of the magnitude and type of environmental impacts associated with cooling water intake structures, including several illustrative examples of documented environmental impacts at existing facilities (see 65 FR 49071 through 4). The majority of biological impacts associated with intake structures are closely linked to water withdrawals from the various waters in which the intakes are located. Based on preliminary estimates from a questionnaire sent to more than 1,200 existing power plants and factories, industrial facilities in the United States withdraw more than 279 billion gallons of cooling water a day from waters of the U.S. The withdrawal of such large quantities of cooling water affects vast quantities of aquatic organisms annually, including phytoplankton (tiny, free-floating photosynthetic organisms suspended in the water column), zooplankton (small aquatic animals, including fish eggs and larvae, that consume phytoplankton and other zooplankton), fish, crustaceans, 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. Impingement takes place when organisms are trapped against intake screens by the force of the water passing through the cooling water intake structure. Impingement can result in starvation and exhaustion (organisms are trapped against an intake screen or other barrier at the entrance to the cooling water intake structure), asphyxiation (organisms are pressed 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 organisms are removed from the water for prolonged periods of time), and descaling (fish lose scales when removed from an intake screen by a wash system) and other physical harms. Entrainment occurs when organisms are drawn through the cooling water intake structure into the cooling system. Organisms that become entrained are normally relatively small benthic, 1 planktonic, 2 and nektonic 3 organisms, including early life stages of fish and shellfish. Many of these small organisms serve as prey for larger organisms that are found higher on the food chain. As entrained organisms pass through a plant's cooling system they are subject to mechanical, thermal, and/or 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 varies by species and can be high under normal operating conditions. 4 5 In the case of either impingement or entrainment, a substantial number of aquatic organisms are killed or subjected to significant harm. 1 Refers to bottom dwellers that are generally small and sessile (attached) such as mussels and anemones, but can include certain large motile (able to move) species such as crabs and shrimp. These species can be important members of the food chain. 2 Refers to free-floating microscopic plants and animals, including the egg and larval stages of fish and invertebrates that have limited swimming abilities. Plankton are also an important source of food for other aquatic organisms and an essential component of the food chain in aquatic ecosystems. 3 Refers to free-swimming organisms (e.g., fish, turtles, marine mammals) that move actively through the water column and against currents. 4 Mayhew, D.A., L.D. Jensen, D.F. Hanson, and P.H. Muessig. 2000. A comparative review of entrainment survival studies at power plants in estuarine environments. Environmental Science and Policy 3:S295-S301. 5 EPRI. 2000. Review of entrainment survival studies: 1970-2000. Prepared by EA Engineering Science and Technology for the Electric Power Research Institute, Palo Alto, CA. In addition to impingement and entrainment losses associated with the operation of the cooling water intake structure, EPA is concerned about the cumulative overall degradation of the aquatic environment as a consequence of (1) multiple intake structures operating in the same watershed or in the same or nearby reaches and (2) intakes located within or adjacent to an impaired waterbody. Historically, impacts related to cooling water intake structures have been evaluated on a facility-by-facility basis. The potential cumulative effects of multiple intakes located within a specific waterbody or along a coastal segment are largely unknown (one relevant example is provided for the Hudson River; see discussion below). There is concern, however, about the effects of multiple intakes on fishery stocks. As an example, the Atlantic States Marine Fisheries Commission has been requested by its member States to investigate the cumulative impacts on commercial fishery stocks, particularly overutilized stocks, attributable to cooling water intakes located in coastal regions of the Atlantic. 6 Specifically, the study will focus on revising existing fishery management models so that they accurately consider and account for fish losses from intake structures. 6 Personal communication, telephone conversation between D. Hart (EPA) and L. Kline (ASMFC), 2001. EPA analyses suggest that over 99 percent of the existing facilities with cooling water withdrawal that EPA surveyed in its section 316(b) survey of existing facilities are located within 2 miles of waters that are identified as impaired and listed by a State or Tribe as needing development of a total maximum daily load (TMDL) to restore the waterbody to its designated use. EPA notes that the top four leading causes of waterbody impairment (siltation, nutrients, bacteria, and metals) affect the aquatic life uses of a waterbody. The Agency believes that cooling water intakes potentially contribute additional stress to waters already showing aquatic life impairment from other sources such as industrial discharges and urban stormwater. EPA is also concerned about the potential impacts of cooling water intake structures located in or near habitat areas that support threatened, endangered, or other protected species. Although limited information is available on locations of threatened or endangered species that are vulnerable to impingement or entrainment, such impacts do occur. For example, EPA is aware that from 1976 to 1994, approximately 3,200 threatened or endangered sea turtles entered enclosed cooling water intake canals at the St. Lucie Nuclear Generating Plant in Florida. 7 The plant developed a capture-and-release program in response to these events. Most of the entrapped turtles were captured and released alive; however, approximately 160 turtles did not survive. More recently, the number of sea turtles being drawn into the intake canal increased to approximately 600 per year; this increase led to a requirement for barrier nets to minimize entrapment. 7 Florida Power and Light Company. 1995. Assessment of the impacts at the St. Lucie Nuclear Generating Plant on sea turtle species found in the inshore waters of Florida. Finally, in the proposed rule EPA expressed concern about environmental impacts associated with the construction of new cooling water intake structures. Three main factors contribute to the environmental impacts: displacement of biota and habitat resulting from the physical placement of a new cooling water intake structure in an aquatic environment, increased levels of turbidity in the aquatic environment, and effects on biota and habitat associated with aquatic disposal of materials excavated during construction. Existing programs, such as the CWA section 404 program, National Environmental Policy Act (NEPA) program, and programs under State/Tribal law, include requirements that address many of the environmental impact concerns associated with the construction of new intakes (see Section VII. G for applicable Federal statutes). EPA recognizes that impacts related to construction of cooling water intake structures can occur and defers to the regulatory authority provided within the above-listed programs to evaluate the potential for impacts and minimize their extent. In the proposed rule and NODA, EPA provided a number of examples of impingement and entrainment impacts that can be associated with existing facilities. It is important to note that these examples were not meant to predict effects at new facilities but rather to illustrate that the number of organisms impinged and entrained by a facility can be substantial. EPA also notes that these are examples of the types of impacts that may occur without controls, that these examples are not representative of all sites whose facilities use cooling water intake structures, and that these examples may not reflect subsequent action that may have been taken to address these impacts on a site-specific basis. With these notes, EPA provides the following examples, illustrating that the impacts attributable to impingement and entrainment at individual facilities may result in appreciable losses of early life stages of fish and shellfish ( e.g., three to four billion individuals annually 8 ), serious reductions in forage species and recreational and commercial landings ( e.g., 23 tons lost per year 9 ), and extensive losses over relatively short intervals of time ( e.g., one million fish lost during a three-week study period 10 ). 8 EPA Region IV. 1979. Brunswick Nuclear Steam Electric Generating Plant of Carolina Power and Light Company, historical summary and review of section 316(b) issues. 9 EPA Region IV. 1986. Findings and determination under 33 U.S.C. 1326, In the Matter of Florida Power Corporation Crystal River Power Plant Units 1, 2, and 3, NPDES permit no. FL0000159. 10 Thurber, N.J and D. J. Jude. 1985. 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, University of Michigan. Further, some studies estimating the impact of impingement and entrainment on populations of key commercial or recreational fish have predicted substantial declines in population size. This has lead to concerns that some populations may be altered beyond recovery. For example, a modeling effort evaluating the impact of entrainment mortality on a representative fish species in the Cape Fear estuarine system predicted a 15 to 35 percent reduction in the species population. 11 11 EPA Region IV. 1979. Brunswick Nuclear Steam Electric Generating Plant of Carolina Power and Light Company, historical summary and review of section 316(b) issues. In addition, studies of entrainment at five Hudson River power plants during the 1980s predicted year-class reductions ranging from six percent to 79 percent, depending on the fish species. 12 An updated analysis of entrainment at three of these power plants predicted year-class reductions of up to 20 percent for striped bass, 25 percent for bay anchovy, and 43 percent for Atlantic tom cod, even without assuming 100 percent mortality of entrained organisms. 13 The New York Department of Environmental Conservation concluded that these reductions in year-class strength were “wholly unacceptable” and that any “compensatory responses to this level of power plant mortality could seriously deplete any resilience or compensatory capacity of the species needed to survive unfavorable environmental conditions.” 14 12 Boreman J. and P. Goodyear. 1988. Estimates of entrainment mortality for striped bass and other fish species inhabiting the Hudson River Estuary. American Fisheries Society Monograph 4:152-160. 13 Consolidated Edison Company of New York. 2000. Draft environmental impact statement for the state pollutant discharge elimination system permits for Bowline Point, Indian Point 2 & 3, and Roseton steam electric generating stations. 14 New York Department of Environmental Conservation (NYDEC). 2000. Internal memorandum provided to the USEPA on NYDEC's position on SPDES permit renewals for Roseton, Bowline Point 1 & 2, and Indian Point 2 & 3 generating stations. The following are summaries of other, documented examples of impacts occurring at existing facilities sited on a range of waterbody types. Also, see the discussion of the benefits of today's final rule in Section IX. Brayton Point Generating Station. The Brayton Point Generating Station is located on Mt. Hope Bay, in Somerset, Massachusetts, within the northeastern reach of Narragansett Bay. Because of problems with electric arcing caused by salt drift and lack of fresh water for the closed-cycle recirculating cooling water system, the company converted Unit 4 from a closed-cycle, recirculating system to a once-through cooling water system in July 1984. The modification of Unit 4 resulted in a 41 percent increase in coolant flow, amounting to an intake flow of approximately 1.3 billion gallons per day and increased thermal discharge to the bay. 15 An analysis of fisheries data by the Rhode Island Division of Fish and Wildlife using a time series-intervention model showed an 87 percent reduction in finfish abundance in Mt. Hope Bay coincident with the Unit 4 modification. 16 The analysis also indicated that, in contrast, species abundance trends have been relatively stable in adjacent coastal areas and portions of Narragansett Bay that are not influenced by the operation of Brayton Point station. 15 Metcalf & Eddy. 1992. Brayton Point station monitoring program technical review. Prepared for USEPA. 16 Gibson, M. 1995 (revised 1996). 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 of Fish and Wildlife, Marine Fisheries Office. San Onofre Nuclear Generating Station. The San Onofre Nuclear Generating Station (SONGS) is located 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. 18 Since then, many studies evaluated the impact of the SONGS facility on the marine environment. 17 Southern California Edison. 1988. Report on 1987 data: marine environmental analysis and interpretation, San Onofre Nuclear Generating Station. 18 Ibid. In a normal (non-El Niño) year, an estimated 121 tons of midwater fish (primarily northern anchovy, queenfish, and white croaker) are entrained at SONGS, of which at least 57 percent are killed during plant passage. 19 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 36 percent, respectively. Queenfish declined by 50 to 70 percent in deepwater samples. 20 A subsequent EPA review of the SONGS 316(b) demonstration concluded that although the plant incorporated technologies for minimizing adverse environmental impact, operations at SONGS cause adverse impacts to organisms in the cooling water system and to biological populations and communities in the vicinity of the intake and discharge locations for the plant. 21 These effects included mortality of fish, especially losses of millions of eggs and larvae, that are taken into the plant with cooling water and creation of a sometimes turbid plume that affects kelp, fish, and invertebrates in the San Onofre kelp bed. 22 19 Swarbrick, S. and R.F. Ambrose. 1989. Technical report C: entrapment of juvenile and adult fish at SONGS. Prepared for Marine Review Committee. 20 Kastendiek, J. and K. Parker. 1989. Interim technical report: midwater and benthic fish. Prepared for Marine Review Committee. 21 SAIC. 1993. Draft review of Southern California Edison, San Onofre Nuclear Generating Station (SONGS) 316(b) demonstration. Prepared for USEPA Region IX. 22 Ibid. Pittsburg and Contra Costa Power Plants. The Pittsburg and Contra Costa Power Plants are located in the San Francisco Estuary, California. Because the San Francisco Bay Delta ecosystem has changed dramatically over the past century, several local species (e.g., Delta smelt, Sacramento splittail, chinook salmon, and steelhead) have been listed as threatened or endangered. Facility estimates for one of these species, chinook salmon, indicate that the Pittsburg and Contra Costa intakes have the potential to impinge and entrain up to 36,567 chinook salmon each year. 23 Based on restoration costs, EPA estimates that losses for this species alone can be valued at $25-40 million per year. 23 Southern Energy. 2000. Habitat conservation plan for the Pittsburg and Contra Costa Power Plants. Power Plants with Flows Less Than 500 MGD. The following information from facility studies documents impingement and entrainment losses for facilities with lower flows than the previous examples: 1. The Pilgrim Nuclear Power Station, located on Cape Cod Bay, Massachusetts, has an intake flow of 446 MGD. 24 The average annual total losses of fish (all life stages) was 26,800 due to impingement and 3.92 billion due to entrainment 25 24 Edison Electric Institute. 1994. EEI Power Statistics Database. Prepared by the Utility Data Institute. 2. The Coleman Power Plant, located on the Ohio River in Henderson, Kentucky, has an intake flow of 337 MGD 25 and combined average impingement and entrainment losses of 702,630,800 fish per year (30,800 impinged and 702,600,000 entrained). 26 25 Data compiled by EPA from annual reports of impingement and entrainment losses from the Pilgrim Nuclear Power Station for the years 1991-1999. 26 Hicks, D.B. 1977. Statement of findings for the Coleman Power Plant, Henderson, Kentucky. Existing and historical studies like those described in this section may provide only a partial picture of the severity of environmental impact associated with cooling water intake structures. Most important, the methods for evaluating adverse environmental impact used in the 1970s and 1980s, when most section 316(b) evaluations were performed, were often inconsistent and incomplete, making detection and consideration of all impacts difficult in some cases, and making cross-facility comparison difficult for developing a national rule. For example, some studies reported only gross fish losses; others reported fish losses on the basis of 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 provide new and in some cases better tools for monitoring impingement and entrainment and detecting impacts associated with the operation of cooling water intake structures. 27 28 EPA acknowledges that these new assessment techniques may in some cases provide additional rather than better tools and perspectives. 27 Schmitt, R.J. and C.W. Osenberg. 1996. Detecting Ecological Impacts. Academic Press, San Diego, CA. 28 EPRI. 1999. Catalog of assessment methods for evaluating the effects of power plant operations on aquatic communities. TR-112013, EPRI, Palo Alto, CA. IV. Summary of the Most Significant Revisions to the Proposed Rule A. Data Updates 1. Number and Characteristics of New Facilities Chapter 5 of the Economic Analysis provides a detailed discussion of the data and methodology used to estimate the number of new electric generating facilities and new manufacturing facilities subject to the final section 316(b) new facility rule. This section provides a summary of primary revisions to the analyses since the proposal. The section discusses new combined-cycle facilities, new coal facilities, and new manufacturing facilities separately. a. New Combined-Cycle Facilities The general approach for estimating the number of new combined-cycle facilities subject to the final section 316(b) new facility rule has not changed since proposal. However, and as discussed in the notice of data availability (NODA), EPA has used new data, which have become available since the proposal, to update the analysis. As a result, the number of new combined-cycle facilities now projected to be in scope of this rule has increased from 24 in the proposed rule analysis to 69 in the updated analysis for the final rule. (1) Proposed Rule For the proposal analysis, EPA used a three-step approach to estimating the number of new combined-cycle facilities: (1) Determination of future combined-cycle capacity additions; (2) estimation of the percentage of all regulated combined-cycle facilities that are in-scope; and (3) estimation of the number of new facilities. EPA used the Annual Energy Outlook 2000 (AEO2000), prepared and published by the Energy Information Administration (EIA) of the U.S. Department of Energy, as the basis for the projected number of new in-scope combined-cycle facilities. The AEO2000 forecast 131 gigawatts (GW) of new combined-cycle capacity to begin operation between 2001 and 2020. Since the AEO does not have any information on the number of new facilities, their size, or their cooling water characteristics, EPA used the January 2000 version of Resource Data International's NEWGen Database to determine the in-scope percentage of new combined-cycle facilities and their facility and cooling water characteristics. In the January 2000 NEWGen database, 94 of 466 projects met the following screening criteria: (1) New facility; (2) located in the United States; (3) active project ( i.e., not canceled or tabled); (4) anticipated date of initial commercial operation after August 13, 2001; and (5) steam electric prime mover. All 94 facilities were included in the analysis of new combined-cycle facilities. EPA then consulted permitting authorities, other public agencies, and company websites to obtain data on the planned facility cooling water use. EPA obtained sufficient data to assess the in-scope status for 56 of the 94 facilities. Seven of the 56 facilities, or 12.5 percent, were found to be in scope of the proposed rule; 49 were found to be out of scope. To estimate the total number of new in-scope combined-cycle facilities projected to begin operation between 2001 and 2020, EPA applied the average facility size of the seven in-scope NEWGen facilities (723 MW) and the in-scope percentage (12.5 percent) to EIA's forecast of new combined-cycle capacity additions. EPA made the conservative assumption that all new combined-cycle capacity would be built at new facilities rather than at existing facilities. These calculations resulted in an estimate of 24 new in-scope combined-cycle facilities over the 2001-2020 period (see also Exhibit 1 below). (2) Final Rule For the final rule analysis and as discussed in the NODA, EPA used the same general methodology but obtained updated information. In particular, EPA used the forecast of capacity additions from the U.S. Department of Energy's Annual Energy Outlook (AEO2001) and the February 2001 NEWGen Database. AEO2001's forecast of new combined-cycle capacity additions between 2001 and 2020 was 204 GW, compared with 131 GW in the AEO2000. Similarly, the February 2001 NEWGen Database contains considerably more new energy projects than the version used for the proposed rule analysis: The database contains 941 new projects, of which 361 met the screening criteria discussed above. Of the 361 facilities, 320 are combined-cycle facilities. To increase the number of facilities upon which facility and cooling water use characteristics are based, EPA excluded the anticipated date of initial commercial operation as a screening criterion. The analysis for the final rule therefore includes all facilities that meet the other four screening criteria, even if a facility will already have begun construction when the rule is promulgated and will therefore not be subject to the final rule. EPA again consulted permitting authorities, other public agencies, and company websites to obtain data on the facilities' planned cooling water use. EPA obtained sufficient data to assess the cooling water characteristics for 199 of the 320 combined-cycle facilities. Of the 199 facilities, 57, or 28.6 percent, were found to be in scope of the final rule; 142 were found to be out of scope. The average size of all 199 facilities with cooling water information was approximately 741 MW. The average size of the 57 in-scope facilities was 747 MW. EPA made one other revision in estimating the total number of new in-scope combined-cycle facilities projected to begin operation between 2001 and 2020: Instead of assuming that all new combined-cycle capacity would be built at new facilities, EPA used information on combined-cycle capacity additions at existing facilities from the NEWGen Database to determine the actual share of capacity that will be built at new facilities. The database showed that 88 percent of new combined-cycle capacity is proposed at new facilities. EPA used the Department of Energy's estimate of new combined-cycle capacity additions (204 GW) and multiplied it by the percentage of capacity that will be built at new facilities (88 percent) to determine that 179 GW of new capacity will be constructed at new facilities. EPA then divided this value by the average facility size (741 MW) to determine that there would be a total of 241 potential new combined-cycle facilities (both in scope and out of scope of today's final rule). Finally, on the basis of EPA's estimate of the percentage of facilities that meet the two (2) MGD flow threshold (28.6 percent), EPA now estimates there will be 69 new in-scope combined-cycle facilities over the 2001-2020 period. Exhibit 1 summarizes the data differences for combined-cycle facilities between the proposal and the final rule analyses. Exhibit 1.—Summary of Combined-Cycle Facility Research (2001 to 2020) Information category Proposed rule analysis Final rule analysis AEO2000 combined-cycle capacity additions 135 GW a AEO2001 combined-cycle capacity additions 204 GW Percentage of combined-cycle capacity additions from new facilities 100% 88% Capacity additions from new facilities 135 GW 179 GW Average size of all combined-cycle facilities 723 MW 741 MW Total number of new combined-cycle facilities 187 241 In-scope percentage 12.5% 28.6% Number of new in-scope combined-cycle facilities 24 69 Average size of in-scope combined-cycle facilities 723 MW 747 MW a Includes 4 GW of new coal capacity additions for 2001-2010. The final step in the costing analysis for the final rule was to project cooling water characteristics of the 69 new in-scope combined-cycle facilities on the basis of the characteristics of the 57 in-scope NEWGen facilities. EPA developed six model facility types based on three main characteristics: (1) The facility's type of cooling system (once-through or recirculating system); (2) the type of water body from which the intake structure withdraws (freshwater or marine water); and (3) the facility's steam-electric generating capacity. The model facility characteristics were then applied to the 69 projected new combined-cycle facilities. EPA estimated that 64 new in-scope combined-cycle facilities will employ a recirculating system and only five will employ a once-through system. Of the 64 facilities with a recirculating system, 58 will withdraw from a freshwater body and six will withdraw from a marine water body. All five facilities with a once-through system are projected to withdraw from a marine water body. b. New Coal Facilities The general approach for estimating the number of new coal facilities subject to this final rule has not changed since proposal. However, as discussed in the NODA, EPA has used new data, which have become available since the proposal, to update the analysis. As a result, the number of new coal facilities projected to be in scope of this rule, decreased slightly, from 16 in the proposed rule analysis to 14 in the final rule analysis. However, most of the new in-scope coal facilities are now expected to begin operation earlier than under the proposal analysis. (1) Proposed Rule For the years 2001-2010, the AEO2000 projected limited new coal-fired steam electric generating capacity. In addition, the January 2000 NEWGen Database included no new coal-fired generating facilities. EPA therefore did not project any new coal facilities for 2001-2010. For the years 2011-2020, EPA used EIA's projected new capacity addition from coal-fired facilities, 17 GW, and information from the following sources to estimate the number and cooling water characteristics of new coal-fired power facilities subject to the rule: Form EIA-767 (Steam Electric Plant Operation and Design Report, Energy Information Administration, U.S. Department of Energy, 1994, 1997); Form EIA-860 (Annual Electric Generator Report, Energy Information Administration, U.S. Department of Energy, 1994, 1997); and Power Statistics Database (Utility Data Institute, McGraw-Hill Company, 1994). EPA estimated that 16 new coal facilities of 800 MW each would be subject to the proposed section 316(b) new facility rule and would begin operation between 2011 and 2020. Of these, 12 were projected to operate a recirculating system in the baseline, while four were projected to operate a once-through system. (2) Final Rule EPA used a similar methodology for the final rule analysis but obtained updated information and added data from the section 316(b) industry survey of existing facilities (Industry Screener Questionnaire: Phase I Cooling Water Intake Structures, Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures, and Industry Short Technical Questionnaire: Phase II Cooling Water Intake Structures). To be consistent with the analysis for combined-cycle facilities, EPA used the forecast of capacity additions from the AEO2001, which predicts 22 GW of new coal capacity between 2001 and 2020. In contrast to the proposal analysis, EPA considered the entire 2001-2020 period for the final rule analysis. In addition, EPA used information from the section 316(b) industry survey to determine the average size, in-scope percentage, and cooling water characteristics of new coal plants. The three surveys identified 111 unique coal-fired facilities that began commercial operation between 1980 and 1999. The facilities have a combined generating capacity of 53 GW, with an average of 475 MW each. The surveys further showed that 45 of the 111 facilities, or 40.5 percent, would be in scope of today's final rule if they were new facilities. These 45 facilities have an average generating capacity of 763 MW. Information in the February 2001 version of the NEWGen Database on capacity additions at new and existing facilities showed that approximately 76 percent of new coal capacity will be built at new facilities. Applying this percentage (76 percent), as well as the average facility size (475 MW) and the in-scope percentage (40.5 percent), to EIA's forecast of new coal capacity additions resulted in 14 new in-scope coal facilities, with an average capacity of 763 MW, over the 2001-2020 period. Exhibit 2 summarizes the data differences for coal facilities between the proposal and the final rule analyses. Exhibit 2.—Summary of Coal Facility Research Proposed rule analysis (2011-2020) Final rule analysis (2001-2020) AEO2000 coal capacity additions 17 GW AEO2001 coal capacity additions 22 GW Percentage of coal capacity additions from new facilities 82% 76% Capacity additions from new faciliteis 14 GW 17 GW Average size of all coal facilities 800 MW 475 MW Total number of new coal facilities 18 35 In-scope percentage 99.0% 40.5% Number of new in-scope coal facilities 16 14 Average size of in-scope coal facilities 800 MW 763 MW EPA projected cooling water characteristics of the 14 new in-scope coal facilities using data for recently-constructed plants from the section 316(b) industry survey. Similar to the combined-cycle facility analysis, EPA developed eight model facility types based on three main characteristics: (1) The facility's type of cooling system (once-though or recirculating system); (2) the type of water body from which the intake structure withdraws (freshwater or marine water); and (3) the facility's steam-electric generating capacity. The model facility characteristics were then applied to the 14 projected new coal facilities. EPA estimated that 10 new in-scope coal facilities will employ a recirculating system and three will employ a once-through system. One coal facility has a recirculating cooling pond and will exhibit characteristics more like a once-through facility. Of the10 facilities with a recirculating system, nine will withdraw from a freshwater body and only one facility will withdraw from a marine water body. All three facilities with a once-through system and the one facility with a cooling pond are projected to withdraw from a freshwater body. c. Manufacturing Facilities The general methodology used to estimate the number of new manufacturing facilities subject to the final section 316(b) new facility rule has not changed since proposal. However, on the basis of comments, EPA has altered some estimates and used new data to update the analysis. As a result, the number of new manufacturing facilities projected to be in scope of this rule has decreased from 58 at proposal to 38 in the final rule analysis. (1) Proposed Rule In the proposal analysis, EPA used three industry-specific estimates to project the number of new in-scope manufacturing facilities: (1) Industry growth forecasts; (2) the estimated percentage of the projected capacity growth accounted for by new facilities; and (3) data on the cooling water use at existing facilities. EPA used the projected growth of value of shipments in each industry to estimate likely future growth in capacity. A number of sources provided growth forecasts, including the annual U.S. Industry & Trade Outlook, AEO2001, and other sources specific to each industry. EPA assumed that the growth in capacity will equal growth in value of shipments, except where industry-specific information supported alternative assumptions. Not all industry growth, however, is expected to occur at new facilities: Some of the projected growth in capacity may result from increased utilization of existing capacity or capacity additions at existing facilities. Where information on the share of growth from new facilities was available, EPA used these data. For example, EIA projected that all increases in petroleum shipments will result from expanded capacity at existing facilities. Where this information was not available, EPA made the conservative estimate that 50 percent of the projected growth in capacity will be attributed to new facilities. Finally, EPA assumed that the cooling water use characteristics of new facilities in each industry, including the in-scope percentage, would be similar to those of existing facilities. Cooling water use data for existing facilities came from the Industry Screener Questionnaire: Phase I Cooling Water Intake Structures. To calculate the total number of new in-scope manufacturing facilities, EPA applied the industry-specific growth rate and the percentage of capacity growth from new facilities to the sample-weighted number of in-scope screener facilities in each industry. (2) Final Rule For the final rule analysis, EPA updated the projected growth in value of shipments for each industry using the most recent data available. On the basis of comments, three changes were made to the percentage of projected capacity growth that is attributed to new facilities. First, the American Chemistry Council stated that EPA overestimated the number of new in-scope chemical facilities in the proposal analysis because the percentage of growth that comes from new facilities (50 percent) was overstated. The comment did not provide a more accurate estimate. EPA therefore revised this estimate for the chemical industry to 25 percent, which reduced the number of new chemical facilities by half. (The Economic Analysis documents the effect of using an alternative assumption of 37.5 percent, the midpoint between the proposal analysis estimate and the final rule analysis estimate, in analyzing the economic impacts of this rule.) Second, the petroleum industry commented that the assumption of no new petroleum refineries over the next 20 years is invalid. Even though the AEO2001 projects no new refineries in the United States, to be conservative EPA nevertheless revised this estimate and included two new in-scope petroleum refineries in the final rule analysis. Third, the American Forest & Paper Association stated that one or two new greenfield paper mills will be built over the next decade. EPA added two new in scope paper mills over the 20-year analysis period in response to this comment. In addition, EPA updated the water use characteristics of the projected new facilities by using data from the Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures instead of the Screener Questionnaire. In the proposal analysis, EPA erroneously used the average daily intake flow rate, instead of the design intake flow rate, to determine whether a facility meets the two MGD flow threshold and is subject to the rule. Since the average intake flow is either lower than or equal to the design intake flow, this error likely underestimated the number of new in-scope manufacturing facilities. For the analysis of the final rule, EPA used the design intake flows reported in the section 316(b) industry survey. Overall, because of the revisions described above, EPA's estimate of the number of new in-scope manufacturing facilities dropped from 58 at proposal to 38 in the cost analysis for this final rule. 2. Revisions to the Costing Estimates Chapter 2 of the Technical Development Document provides a detailed description of the data and methodology used to develop compliance cost estimates for the final regulation. This section provides a summary of the main revisions in the costing inputs since the proposal. At the time of the proposal, EPA included cost estimates for plume abatement at 50 percent of the electric generating facilities anticipated to install recirculating wet cooling towers to comply with the rule. This was an error. As described in the NODA (66 FR 28866 and 28867), EPA has since refined its estimates of cooling tower costs on a national basis to reflect plume abatement costs at a significantly lower proportion of facilities. EPA determined, on the basis of further research and information received from vendor manufacturers, that plume abatement measures were installed at only 3 to 4 percent of recent wet cooling tower projects. Therefore, the costing estimates for the final rule reflect this change. At the time of the proposal, EPA included cost estimates for pumping of recirculating cooling water in the towers based on a flow rate equal to 15 percent of a comparable once-through cooling flow (based on the flow of make-up water). As explained in the NODA (66 FR 28866), this was an error. EPA has since refined its costing estimates to include the entire cooling flow. EPA's cost estimates for both capital and O&M costs for the final rule reflect appropriately sized pumps to recirculate the full design cooling water flow. The in-tower cooling water flow is now based on the level of cooling necessary for the condenser and the plants' cooling needs. Since proposal, EPA has included costs from additional projects in the calculation of its costing estimates for recirculating wet cooling towers. EPA obtained further “turn-key” vendor project costs that have been incorporated into the specific costing equations used to calculate the capital and operation and maintenance (O&M) costs of the final rule. Turn-key project costs represents all costing elements necessary to estimate engineering costs, such as vendor overhead, equipment, wiring, foundations and contingencies. EPA included these project costs in the calculation of the costing equations in order to increase the number of real-world projects upon which the final cost estimates are based. EPA has refined its estimates of O&M costs for recirculating wet cooling towers since proposal. At the time of proposal, EPA estimated economy of scale for O&M costs for recirculating, wet cooling towers as their size increases. EPA based this estimate primarily on the economy of scale savings for wastewater treatment systems as wastewater flow increases. The overall effect of this approach showed that for very large cooling towers, a savings of nearly two-thirds was achieved compared with smaller cooling towers. On the basis of comments received and further research, EPA has refined its estimates of O&M costs and economies of scale. The cost estimates presented for the final rule reflect this revision to the analysis. In the final rule, EPA has included cost estimates for energy penalties due to operating power losses from recirculating cooling tower systems. Further information on this subject can be found in Section IV.A.3 of this preamble, below. 3. Energy Penalty Estimates for Recirculating Wet Cooling and Dry Cooling Towers Since proposal, as discussed in the NODA (66 FR 28866), EPA has included in its estimates of O&M costs the performance penalties that may result in reductions of energy or capacity produced because of adoption of recirculating cooling tower systems. The cost estimates for the final rule include consideration of these penalties. The final rule cost estimates account for the energy penalty at facilities that are projected to install recirculating wet cooling tower systems in lieu of once-through cooling systems. EPA's cost estimates for dry cooling regulatory alternatives account for the appropriate energy penalty of this technology at each facility projected to install such a system. For the final rule, EPA's costing methodology for performance penalties is based on the concept of lost operating revenue due to a mean annual performance penalty. EPA estimated the mean annual performance penalty for each tower technology as compared with once-through or recirculating wet cooling systems (where applicable for the dry cooling analysis). EPA then applied this mean annual penalty to the annual revenue estimates for each facility projected to install a recirculating cooling tower technology as a result of the rule or a regulatory option. EPA considers these revenue losses as representative of the cost to the facility for either replacing the power lost via the market or expanding the capacity of the new power plant. Chapter 3 of the Technical Development Document discusses performance penalties in more detail. 4. Significant Changes to the Economic Analysis a. Revisions to Costing Analysis EPA has made a methodological change for estimating the cost for today's rule. For the proposal, EPA directly estimated the incremental cost of the rule without estimating the baseline cost. This made it difficult to identify the magnitude of changes in relevant components of a system of a facility and their individual costs. For the final rule, EPA separately estimated the baseline costs and the cost after meeting the requirements of the rule. Thus, the incremental cost attributed to the rule is derived from the difference between the baseline cost and the cost after compliance with the requirements of the rule. For the proposal, EPA estimated the cost of the rule to be $12 million. This estimate was in part based on the assumption that 90 percent of the coal facilities would be within the scope of the rule. Since the publication of the proposal, EPA has analyzed additional information regarding coal facilities. This information shows that 40.5 percent of the coal facilities would be within the scope of the rule. EPA also revised the baseline characteristics for these facilities. For the final rule, EPA estimates that 71 percent of new in-scope coal facilities would have recirculating cooling towers independent of the rule. For combined-cycle facilities, EPA used the January 2000 version of the NEWGen database at proposal to estimate the proportion of the facilities that would be within the scope of the proposal. In view of the changes in the energy market, EPA is using a more current version (February 2001) of the NEWGen database for the final analysis. Consequently, EPA is revising the in-scope percentage for combined-cycle facilities to 28.6 percent for the final analysis, instead of 12.5 percent used for the proposal. For the proposal, EPA used the average flow from the section 316(b) industry survey, screener questionnaire for existing manufacturing facilities to estimate the technology and O&M costs for new manufacturing facilities. EPA believes that the average flow would underestimate the costs because costs mostly depend on design of a facility. Therefore, EPA is using the design flow for estimating the cost for manufacturing facilities for the final rule. For the proposal, EPA assumed that 50 percent of the growth in product demand in the chemical industry would be met from new facilities. Commenters pointed out that this assumption leads to an overestimation of the number of new facilities and EPA agrees. Therefore, EPA has revised this assumption to 25 percent for the analysis supporting today's rule. EPA has also examined the cost of the rule as a percentage of (annual) revenue for purposes of determining whether the options are economically practicable. The worst-case, or upper-limit, cost estimate for the rule is between 3.3 to 5.2 percent of estimated revenues (for three coal facilities), between 1 and 3 percent for an additional six facilities, and less than 1 percent for the rest of the facilities. EPA concludes that those costs are economically practicable and will not pose a barrier to entry for new facilities. The initial compliance cost of the rule (i.e., capital costs and permitting costs) as a percentage of construction cost of an electric generation facility is 3.4 percent for one coal facility, between 1.0 and 3.0 percent for an additional seven facilities, and less than 1.0 percent for the rest of the electric generation facilities. EPA finds that these are relatively low compliance costs. EPA does not consider that the cost of the rule would be a barrier to entry for new facilities and also finds that cost to be economically practicable. 5. Air Emissions Increases as a Result of Certain Regulatory Options For the final rule, and as discussed in the NODA, EPA includes estimates of annual air emissions increases for certain pollutants from new power plants as a result of certain regulatory options considered. EPA developed estimates for air emissions increases for SO 2 , NO X , CO 2 , and Hg for the regulatory options based on near-zero intake (dry cooling) and for those based on uniform national requirements of flow reduction commensurate with closed-cycle recirculating wet cooling systems (wet cooling towers) or with wet-cooling systems in Track I of a two-track rule. EPA anticipates, because of measurable performance penalties associated with cooling tower systems (see Section IV.A.3 of this preamble), that, depending on the regulatory option, air emissions nationally could increase from all or a small subset of new power plants as a result of the installation of cooling tower systems. EPA estimates the marginal air emissions increases by assuming that the energy lost by the facility cannot be replaced through additional fuel consumption at that facility, but rather, the energy will be replaced by the entire grid as a whole. Thus, the replacement energy necessary to compensate for the performance penalty is generated by the mix of fuels present in the entire grid. This is because, in EPA's view and on the basis of comments received, power plants are not always capable of compensating for an energy shortfall due to a performance penalty of a recirculating cooling tower by increasing their fuel consumption. Even though the estimated mean annual performance penalty for recirculating wet cooling towers is small, EPA estimates that facilities designed for once-through cooling would not always be designed with sufficient excess capacity to compensate for the performance penalties caused by recirculating wet cooling tower installations as a result of this rule. Therefore, EPA determines that marginal increases in air emissions due to performance penalties are best represented by estimating that the entire grid will replace the energy loss. EPA's estimates of marginal increases of air emissions are presented in Exhibit 3. Exhibit 3.—Estimates of Marginal Increases of Air Emissions for Recirculating Wet Cooling Towers a Capacity (MW) Annual CO 2 (tons) Annual SO 2 (tons) Annual NO X (tons) Annual Hg (lbs) National Emissions from Electricity Generation 828,631 2,575,814,488 13,581,673 6,437,710 86,722 Air Emission Increases if Plants Compensate With Increased Fuel Consumption National Electricity Generation Air Emissions Increases for Wet Cooling 712,886 (.0028%) 1,543 (.0011%) 1,518 (.0024%) 23 (.0026%) Air Emission Increases if Plants Purchase Replacement Power From Market National Electricity Generation Air Emissions Increases for Wet Cooling 485,860 (.0019%) 2,561 (.0019%) 1,214 (.0019%) 16 (.0019%) a This analysis assumes that annual emissions from energy generation are constant from 1998 to 2020, even though generation is projected to increase steadily over the next twenty years. Therefore, these estimates are slightly overstated. B. Regulatory Approach 1. Proposed Rule EPA proposed flow, velocity, and other design and construction technologies requirements based on the type of waterbody in which the intake structure is located and, for certain types of waters, the location of the intake in the water body. EPA proposed to group surface water into four categories: freshwater rivers and streams, lakes and reservoirs, estuaries and tidal rivers, and oceans. For each of these waterbody types, EPA divided the waterbody into sections based on the defined “littoral zone.” At proposal, littoral zone was defined as any nearshore area in a freshwater river or stream, lake or reservoir, or estuary or tidal river extending from the level of highest seasonal water to the deepest point at which submerged aquatic vegetation can be sustained (i.e., the photic zone extending from shore to the substrate receiving one (1) percent of incident light); where there is a significant change in slope that results in changes to habitat or community structure; and where there is a significant change in the composition of the substrate (e.g., cobble to sand, sand to mud). In oceans, the littoral zone encompassed the photic zone of the neritic region. The photic zone is that part of the water that receives sufficient sunlight for plants to be able to photosynthesize. The neritic region is the shallow water or nearshore zone over the continental shelf. In general, the closer the intake structure was to the littoral zone, the more stringent the proposed best-technology-available requirements for minimizing adverse environmental impact became. For example, an intake structure located within the littoral zone would have required the most stringent capacity and velocity controls as well as the use of other design and construction technologies. EPA also proposed the most stringent requirements for best technology available for minimizing adverse environmental impact in all parts of tidal rivers and estuaries because of the potential for high biological productivity in these waters. 2. Notice of Data Availability In the NODA, EPA sought comment on various versions of a two-track approach resulting from comments received on the proposal. Under this approach, a facility would choose to pursue one of two tracks. In general (based on size), Track I would establish national technology-based performance requirements, whereas Track II would allow the facility to conduct site-specific studies to demonstrate to the permit director that alternative technologies or approaches could reduce impingement and entrainment to the same or a greater degree than the Track I technology-based performance standards. See 66 FR 28868 to 28872. 3. Final Rule In this rule, EPA is establishing a two-track technology-based approach that does not distinguish between waterbody types or the location of the intake structure within the waterbody type. Track I establishes capacity (for facilities with a design intake flow equal to or greater than 10 MGD), velocity, and capacity- and location-based proportional flow requirements to reduce impingement and entrainment of fish, shellfish, eggs, and larvae and requires the applicant to select and implement design and control technologies to minimize impingement and entrainment in certain areas. Track I applicants with intake flow between 2 and 10 MGD do not have to comply with a capacity limitation but then must use technologies to reduce entrainment at all locations. Track II allows a facility to conduct a comprehensive demonstration study to show that alternative controls will achieve comparable performance. The two-track approach balances the goal of providing regulatory certainty and fast permitting for new facilities with the goal of allowing flexibility by including a performance-based alternative. Track I streamlines the permitting process, providing a high degree of certainty that a facility will obtain a National Pollutant Discharge Elimination System (NPDES) permit without delays. In EPA's view, Track II provides an incentive for the development of innovative technologies that will represent best technology available for minimizing impingement and entrainment from cooling water intake structures. V. Basis for the Final Regulation A. Major Options Considered for the Final Rule EPA considered and analyzed several technology-based regulatory options to determine the best technology available for minimizing adverse environmental impact for new facilities. All of these options were analyzed and compared with the current requirements applied to NPDES permits for existing facilities with cooling water intake structures. Although the Agency considered numerous regulatory options during rule development, the primary options considered in development of today's final rule include: (1) Technology-based performance requirements for different types of waters, with intake capacity limits based on closed-cycle recirculating wet cooling systems required only in estuaries, tidal rivers, the Great Lakes, and oceans; (2) national technology-based performance requirements for all waterbodies, with flow reduction commensurate with the level achieved with closed-cycle recirculating wet cooling; (3) national technology-based performance requirements for all waterbodies with a near-zero intake level (based on dry cooling); 29 and (4) a case-by-case, site-specific approached based on the 1977 draft guidance document. 30 In addition to these options, EPA also considered variations on each of the technology-based options using on a two-track permitting approach. The two-track options include one presented by industry for consideration. The two-track approach establishes a specific set of technology-based performance requirements that a permittee can implement that reflect best technology available for minimizing adverse environmental impact; this approach also provides permittees with flexibility to demonstrate that an alternative set of requirements achieves a comparable level of performance. 29 EPA also examined subcategorization strategies for the dry cooling based option, on the basis of regional distribution of facilities, size of facilities, and type of facility (i.e., steam electric power plants versus manufacturing facilities). 30 U.S. Environmental Protection Agency. 1977. Draft guidance for evaluating the adverse impact of cooling water intake structures on the aquatic environment: section 316(b) P.L. 92-500. For all the options except for those based on dry cooling, EPA also considered requiring a design through-screen velocity of 0.5 ft/s, location- and capacity-based flow restrictions proportional to the size of the waterbody (such as a requirement for streams and rivers allowing no more than 5 percent withdrawal of the mean annual flow), and design and construction technologies to minimize impingement mortality and entrainment. In addition, EPA considered requiring post-operational monitoring of impinged and entrained organisms, monitoring of the through-screen velocity, and periodic visual inspections of the intake structures. 1. Technology-Based Performance Requirements for Different Types of Waterbodies Under this option, EPA would establish requirements for minimizing adverse environmental impact from cooling water intake structures based on the type of waterbody in which the intake structure is located, the location of the intake in the waterbody, 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 for minimizing adverse environmental impact. Under this option, the best technology available for minimizing adverse environmental impact would constitute a technology suite that would vary depending on the type of waterbody in which a cooling water intake structure is located and the location of the cooling water intake structure within the waterbody. EPA would set technology-based performance requirements; the Agency would not mandate the use of any specific technology. Under this option, EPA considered only requiring intake flow reduction commensurate with the level that can be achieved using a closed-cycle recirculating wet cooling system for intakes located in estuaries, tidal rivers, oceans, and the Great Lakes. For all other waterbody types, the only capacity requirements would be proportional flow reduction requirements. In all waterbodies, velocity limits and a requirement to study, select, and install design and construction technologies would apply. EPA determined that the annual compliance cost to industry for this option would be $36.3 million. EPA found that the regulatory implementation burden would be of an acceptable level but that the delay in permitting of new facilities could be up to 6 months if all new facilities were required to complete a baseline biological characterization study prior to submitting an application for a permit. This study would detail the potential design and construction technologies that would apply to all new facilities and would be required beyond the flow reduction requirements for facilities located in estuaries, tidal rivers, oceans, and the Great Lakes. This option was, in part, rejected due to the potential of delays in permitting. More significantly, this option was rejected because closed-cycle recirculating cooling water systems are available and economically practicable across all waterbody types. 2. National Technology-Based Performance Requirements for All Waterbodies a. Flow Reduction Commensurate With the Level Achieved by Closed-Cycle Recirculating Wet Cooling Systems EPA also considered a regulatory option for new facilities based primarily on intake-flow reduction from all cooling water intake structures commensurate with the level that can be achieved using a closed-cycle recirculating cooling water system. This option does not distinguish between facilities on the basis of the waterbody from which they withdraw cooling water. In addition to reducing design intake velocity and complying with capacity- and location-based proportional flow requirements, all facilities need to complete a baseline biological characterization study prior to submitting the application for a permit. This study would detail the design and construction technologies necessary to maximize the survival of impinged adult and juvenile fish and to minimize the entrainment of eggs and larvae. The applicant would also need to comply with any additional requirements established by the Director as reasonably necessary to minimize impingement and entrainment as a result of the effects of multiple cooling water intake structures in the same waterbody, seasonal variations in the aquatic environment affected by the cooling water intake structures controlled by the permit, or the presence of regionally important species. EPA did not determine the annual compliance cost to industry for this option. EPA found that the permit writer's regulatory implementation burden would be of an acceptable level. EPA adopted this option, in part, as Track I of the two-track approach. b. Intake Capacity Reduction Commensurate with the Level Achieved by Use of a Dry Cooling System EPA considered a regulatory option for new facilities based primarily on intake flow reduction from all cooling water intake structures commensurate with zero or very low-level intake (dry cooling). This option does not distinguish between facilities on the basis of the waterbody from which they withdraw cooling water. Dry cooling systems use either a natural or a mechanical air draft to transfer heat from condenser tubes to air. EPA determined that the annual compliance cost to industry for this option would be at least $490 million. EPA also found that the permit writer's regulatory implementation burden would be of an acceptable level and there would be no delay in the permitting of new facilities. The option would require no baseline biological characterization study prior to submission of the application for a permit, due to the requirement of near-zero intake. In addition, EPA analyzed three subcategorization strategies for the final rule based on the dry cooling technology. EPA considered establishing zero or very low-level intake requirements only for steam electric power plants locating in cold northern climates. See Section V.C.1. EPA also separately analyzed a zero or very low-level intake requirement for steam electric power plants of small capacity (those with total capacity less than 500 MW). See Section V.C.1. For both of these subcategorization strategies, all facilities not complying with dry cooling technology-based performance requirements would comply with the national requirement of capacity reduction based on closed-cycle recirculating wet cooling. The dry cooling subcategories would require no baseline biological characterization study prior to submission of the application for permit, because of the requirement of near-zero intake. EPA found that the permit writer's regulatory implementation burden would be of an acceptable level and there could be a delay of up to 6 months in the permitting of new facilities under the dry cooling based subcategories. EPA discusses why it is not adopting the dry cooling approach for subcategories based on size and/or climate in Section V.C. below. 3. Two-Track Options For each of the regulatory options outlined above that requires reduction of flow commensurate with the level achieved with closed-cycle recirculating cooling systems, EPA also considered a number of two-track options. The two-track options provide flexibility to the permittee in that the facility may choose to comply by meeting the specific technology-based performance requirements defined in the “fast track” (Track I), or by demonstrating that a level of performance would be achieved comparable to the level that would be achieved under the Track I requirements under the “demonstration track” (Track II). Under one of the two-track options (referred to as the “preferred two-track” option), EPA considered a fast-track based on a commitment by the facility to employ a suite of technologies that would represent best technology available for minimizing adverse environmental impact. The technologies considered include reduction in capacity commensurate with that achievable by use of a closed-cycle recirculating cooling water system; a velocity limitation of less than or equal to 0.5 ft/s; and location where intake capacity would be no more than five (5) percent of the mean annual flow of a freshwater stream or river, no more than one (1) percent of the tidal excursion volume of a tidal river or estuary or where the intake capacity would not disrupt the natural stratification and turnover patterns of a lake or reservoir. Applicants also would be required to conduct baseline biological characterization monitoring; these data would be used to determine which design and construction technologies are needed on a case-by-case basis. EPA also considered allowing the permit applicant to specify design and construction technologies and to require monitoring so that the performance of these technologies could be evaluated in a subsequent NPDES permit. In order to speed up the issuance of the first permit at the new facility, EPA considered waiving any mandatory baseline biological characterization monitoring under Track I. In this case, the applicant would have the opportunity to rely on and present historical or literature information to support its selection of design and construction technologies. Under this approach, applicants would propose what design and construction requirements are most appropriate to reduce impingement and entrainment or to maximize impingement survival resulting from water withdrawn as make-up water at these facilities. The biological characterization information would support the design and construction technologies that the permittee chose to implement. The Director could revisit these design and construction technologies at the time of permit renewal. (Most design and construction technologies can be implemented without stopping operation at the facility.) As an alternative to the case-by-case designation of design and construction technologies, EPA also considered designating the following two design and construction technologies as part of a fast-track, best technology available suite of technologies: a fine mesh traveling screen with a fish return system, variable speed pumps, and a low pressure spray; or a submerged wedgewire fine mesh screen. Under Track II, a facility would need to conduct a comprehensive demonstration study that documents that an alternative suite of technologies can be used by the facility to reduce impingement mortality and entrainment for all life stages of fish and shellfish to achieve a level of reduction comparable to the level that would be achieved under Track I. The estimated annual compliance cost to facilities for the preferred two-track option is $47.7 million. EPA also considered a less stringent variation of the two-track option above, in which Track I would not require cooling water intake structures located in fresh rivers or streams and lakes or reservoirs to reduce capacity to a level commensurate with that achievable by use of a closed-cycle cooling system. EPA did not select this option because other available technologies that are economically practicable achieve greater reduction in impingement and entrainment. EPA also considered a third two-track option as suggested by industry. Under this option, an applicant choosing Track I would install “highly protective” technologies in return for expedited permitting without the need for pre-operational or operational studies in the source waterbody. According to the commenters, these technologies would “exceed the section 316(b) standards” because they would “avoid adverse environmental impact,” defined as proven population or ecosystem impacts. Such fast-track technologies might include technologies that reduce intake flow to a level commensurate with a wet closed-cycle cooling at that site and that achieve an average approach velocity (measured in front of the cooling screens or the opening to the cooling water intake structure) of no more than 0.5 ft/s, or any technologies that achieve a level of protection from impingement and entrainment within the expected range for a closed-cycle cooling (with 0.5 ft/s approach velocity) given the waterbody type where the facility is to be located. This option was intended to allow facilities to use standard or new technologies that have been demonstrated to be effective for the species, type of waterbody, and flow volume of the cooling water intake structure proposed for their use. Examples of candidate technologies include (a) wedgewire screens, where there is constant flow, as in rivers; (b) traveling fine mesh screens with a fish return system designed to minimize impingement and entrainment; and (c) aquatic filter barrier systems, at sites where they would not be rendered ineffective by high flows or fouling. The operator of a proposed new facility would elect which set of technologies to install and validate its performance as necessary. In return, the permitting agency would not require additional section 316(b) protective measures for the life of the facility. Under the industry approach, Track II would provide an applicant who does not want to commit to any of the above technology options with an opportunity to demonstrate that site-specific characteristics, including the local biology, would justify another cooling water intake structure technology, such as once-through cooling. For these situations, the applicant could demonstrate to the permitting agency, on the basis of site-specific studies, either that the proposed intake would not create an appreciable risk of adverse environmental impact or, if it would create an appreciable risk of adverse environmental impact, that the applicant would install technology to “minimize” adverse environmental impact. Such demonstrations would recognize that some entrainment and impingement mortality can occur without creating “adverse environmental impact,” but, where there is an appreciable risk of adverse environmental impact (e.g., population effects), the technology that would “minimize” it would be the technology that maximized net benefits. EPA determined that the annual compliance cost to industry for this option would be $24.9 million. EPA discusses why it is not accepting the industry's two-track approach in full in Section V.D below. EPA also considered a waterbody-based two track option. Under this option, Track I would require, depending on the waterbody type, screens, fish return systems, or reduction in capacity to a level commensurate with that achievable by use of a closed-cycle cooling system. The delineation of waterbody types would correlate with greater or lesser potential for impingement and entrainment. Under Track II , a permit applicant would be able to demonstrate how alternative technology performance measures would reduce impingement mortality and entrainment for all life stages of fish and shellfish to a level of reduction comparable to the level that would be achieved under Track I. EPA did consider a two-track option based on dry cooling. EPA did not promulgate this option for reasons discussed at Section V.C. of this preamble for not adopting dry cooling as best technology available for minimizing adverse environmental impact. In addition, there are very limited alternatives for achieving a dry cooling-level reduction in impingement and entrainment in a second track. EPA did not select this option because other available technologies that are economically practicable achieve significant reduction in impingement and entrainment at far lower cost. B. Why EPA Is Establishing EPA's Preferred Two-Track Option as the Best Technology Available for Minimizing Adverse Environmental Impact? For new facilities subject to this rule, EPA finds that the preferred two-track option represents the best technology available for minimizing adverse environmental impact. With respect to new facilities, the technologies used as the basis for this option are commercially available and economically practicable for the industries affected as a whole, and have acceptable energy impacts. EPA estimates that only nine electric generators who were planning to install a once-through cooling system will have to install recirculating wet cooling towers as a result of this rule. The energy impacts associated with these nine facilities is estimated to comprise only 0.026 percent of total new electric generating capacity. Similarly, the technologies used as the basis for this option also have acceptable non-aquatic environmental impacts. The non-aquatic environmental impacts associated with increased air emissions (SO 2 , NO 2 , CO 2 , and Hg) is very small. The increased SO 2 , NO X , CO 2 , and Hg attributed to the nine facilities that would be required to install recirculating wet cooling towers in lieu of once-through cooling systems is negligible in comparison to the total annual air emissions from new power plants. EPA finds that the requirements contained in the preferred two-track approach meet the requirement of section 316(b) of the CWA that the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A01-28968. Public record. Not legal advice.