National Pollutant Discharge Elimination System-Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities

ENVIRONMENTAL PROTECTION AGENCY

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

[OW-2004-0002, FRL-7834-7]

RIN 2040-AD70

National Pollutant Discharge Elimination System—Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Today's proposed rule would establish national categorical requirements under section 316(b) of the Clean Water Act for certain existing facilities that employ a cooling water intake structure and are designed to withdraw water above a certain design intake flow from certain waters of the United States for cooling purposes. Today's notice proposes three possible options for defining which existing facilities would be subject to uniform national requirements, based on design intake flow threshold and source waterbody type: The facility has a total design intake flow of 50 million gallons per day (MGD) or more, and withdraws from any waterbody; the facility has a total design intake flow of 200 MGD or more, and withdraws from any waterbody; or the facility has a total design intake flow of 100 MGD or more and withdraws water specifically from an ocean, estuary, tidal river, or one of the Great Lakes. Because the lowest co-proposed flow threshold option is 50 MGD, the proposed requirements would only apply to manufacturing facilities—as power producers with a flow greater than 50 MGD are regulated under the Phase II rule. This proposed rule would constitute Phase III of EPA's section 316(b) regulation development and would establish national requirements, and procedures for implementing those requirements, applicable to the location, design, construction, and capacity of cooling water intake structures at Phase III facilities. Today's proposed rule would also establish categorical section 316(b) requirements for new offshore oil and gas extraction facilities, which were specifically excluded from the scope of the Phase I new facility rule so that EPA could gather additional data on these facilities. The proposed rule would apply to both existing manufacturers and new offshore oil and gas extraction facilities that withdraw at least 25 percent of the water exclusively for cooling purposes.

The proposed national requirements, which would be implemented through National Pollutant Discharge Elimination System (NPDES) permits, are based on the best technology available to minimize the adverse environmental impact associated with the use of cooling water intake structures. For covered existing facilities, today's proposed rule would establish performance standards for reducing impingement mortality by 80 to 95 percent, or impingement mortality by 80 to 95 percent and entrainment by 60 to 90 percent. Today's proposal would allow existing facilities to select from five compliance alternatives consistent with those provided in the final Phase II rule for existing large flow electric power generators. Once finalized and implemented, the rule would minimize the adverse environmental impact of cooling water intake structures by reducing the number of aquatic organisms lost as a result of water withdrawals associated with these structures.

Today's proposed rule does not propose to alter the regulatory requirements for facilities subject to the Phase I or Phase II regulations, and EPA is not soliciting comment on those regulations. EPA is only seeking comment on the proposed regulations for Phase III existing facilities and new offshore oil and gas facilities, as reflected in the proposed regulatory text for subparts K and N. Depending on the options selected in the final section 316(b) regulation for Phase III facilities, EPA may decide to integrate the regulatory text for subparts K and N proposed today into the existing subparts I and J, for purposes of streamlining the number of pages for publication.

DATES:

Comments must be received on or before March 24, 2005.

ADDRESSES:

Submit your comments, identified by Docket ID No. OW-2004-0002, by one of the following methods:

I. Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the on-line instructions for submitting comments.

II. Agency Web site:

http://www.epa.gov/edocket.

EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.

III. E-mail:

OW-Docket@epa.gov

.

IV. Mail: Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2004-0002. Please include a total of 3 copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503.

V. Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. OW-2004-0002. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:

Direct your comments to Docket ID No. OW-2004-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at

http://www.epa.gov/edocket,

including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the regulations.gov websites are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit EDOCKET on-line or see the

Federal Register

of May 31, 2002 (67 FR 38102). For additional instructions on submitting comments, go to section B of the

SUPPLEMENTARY INFORMATION

section of this document.

Docket:

All documents in the docket are listed in the EDOCKET index at

http://www.epa.gov/edocket.

Although listed in the index, some information is not publicly available,

i.e.

, CBI or other

information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the Water Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT:

For additional technical information contact Martha Segall at (202) 566-1041 or Paul Shriner at (202) 566-1076. For economic information, contact Erik Helm at (202) 566-1066. For biological information contact Ashley Allen at (202) 566-1012. The address for the above contacts is: Office of Science and Technology, Engineering Analysis Division (Mailcode 4303T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; fax number: (202) 566-1053; e-mail address:

rule.316b@epa.gov.

SUPPLEMENTARY INFORMATION:

General Information

A. What Entities Are Regulated by This Action?

This proposed rule would apply to “Phase III existing facilities”—

i.e.

, certain existing manufacturing and industrial facilities that are: (1) Point sources; (2) use or propose to use one or more cooling water intake structures; (3) are designed to withdraw water above a certain threshold from certain waters of the U.S. (the flow threshold would differ depending on the regulatory option selected in the final rule); and (4) use at least 25 percent of water withdrawn exclusively for cooling purposes. Depending on the regulatory option selected, the facility would be subject to these national requirements if it had a design intake flow of: (1) 50 MGD or more from any waterbody; (2) 200 MGD or more from any waterbody; or (3) 100 MGD or more from an ocean, estuary, tidal river, or one of the Great Lakes. This proposed rule would define “existing facility” as any manufacturing or industrial facility that commenced construction on or before January 17, 2002 (or [60 days from publication of the final rule] for an offshore oil and gas extraction facility), and any modification of, or any addition of a unit at such a facility that does not meet the definition of a new facility at § 125.83.

This proposed rule would also apply to new offshore and coastal oil and gas extraction facilities, which were specifically excluded from the Phase I new facility rule. An offshore and coastal oil and gas extraction facility is new if construction commenced after 60 days from publication of the final rule. Exhibit 1 provides examples of industrial facility types potentially regulated by this proposed rule.

Exhibit 1.—Examples of Industrial Facility Types Potentially Regulated by This Proposed Rule

Category

Examples of potentially regulated entities

Standard industrial

classification codes

North American industry codes (NAIC)

Federal, State and local government

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

4911 and 493

221111, 221112, 221113, 221119, 221121, 221122

Industry

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

See below

See below

Agricultural production

0133

111991, 11193

Metal mining

1011

21221

Oil and gas extraction

1311, 1321

211111, 211112

Mining and quarrying of nonmetallic minerals

1474

212391

Food and kindred products

2046, 2061, 2062, 2063, 2075, 2085

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

Tobacco products

2141

312229, 31221

Textile mill products

2211

31321

Lumber and wood products, except furniture

2415, 2421, 2436, 2493

321912,321113, 321918, 321999, 321212, 321219

Paper and allied products

2611, 2621, 2631, 2676

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

Chemical and allied products

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

325 (except 325182, 32591, 32551, 32532)

Petroleum refining and related industries

2911, 2999

32411, 324199

Rubber and miscellaneous plastics products

3011, 3069

326211, 31332, 326192, 326299

Stone, clay, glass, and concrete products

3241

32731

Primary metal industries

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

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

Fabricated metal products, except machinery and transportation equipment

3421, 3499

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

Industrial and commercial machinery and computer equipment

3523, 3531

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

Transportation equipment

3724, 3743, 3764

336412, 333911, 33651, 336416

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

3861

333315, 325992

Electric, gas, and sanitary services

4911, 4931, 4939, 4961

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

Educational services

8221

61131

Engineering, accounting, research, management and related services

8731

54171

This exhibit is not intended to be exhaustive, but rather provides a guide for readers regarding entities that may be regulated by this action if they satisfy the final flow threshold and waterbody type criteria. This exhibit lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the exhibit could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in § 125.101 and § 125.131 of this proposal. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed for technical information in the

FOR FURTHER INFORMATION CONTACT

section.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting Confidential Business Information (CBI). Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send information claimed as CBI by mail only to the following address, Office of Science and Technology, Mailcode 4303T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Ahmar Siddiqui /Docket ID No. OW-2004-0002. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the

FOR FURTHER INFORMATION CONTACT

section.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

I. Identify the rulemaking by docket number and other identifying information (subject heading,

Federal Register

date and page number).

II. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

III. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

IV. Describe any assumptions and provide any technical information and/or data that you used.

IV. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

V. Provide specific examples to illustrate your concerns, and suggest alternatives.

VI. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

VII. Make sure to submit your comments by the comment period deadline identified.

C. Supporting Documentation

The proposed regulation is supported by three major documents:

1. Economic Analysis for the Proposed Section 316(b) Rule for Phase III Facilities (EPA-821-R-04-016), hereafter referred to as the Economic Analysis (EA). This document presents the analysis of compliance costs, closures, energy supply effects, and benefits associated with the final rule.

2. Regional Benefits Assessment for the Proposed Section 316(b) Rule for Phase III Facilities (EPA-821-R-04-017), hereafter referred to as the Regional Analysis Document or the Regional Study(ies) Document. This document examines cooling water intake structure impacts and regulatory benefits at the regional level.

3. Technical Development Document for the Proposed Section 316(b) Rule for Phase III Facilities (EPA-821-R-04-015), 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 final rule's requirements.

D. Table of Contents

General Information

A. What Entities Are Regulated By This Action?

B. What Should I Consider as I Prepare My Comments for EPA?

C. Supporting Documentation

D. Table of Contents

I. Legal Authority, Purpose, and Background of Today's Regulation

A. Legal Authority

B. Purpose of Today's Proposed Regulation

C. Background

II. Scope and Applicability of the Proposed Rule

A. What is a “New” Offshore Oil and Gas Extraction Facility for Purposes of the Section 316(b) Proposed Phase III Rule?

B. What is an “Existing Facility” for Purposes of the Section 316(b) Proposed Phase III Rule?

C. What is “Cooling Water” and What is a “Cooling Water Intake Structure?”

D. Would My Facility Be Covered if It Withdraws from Waters of the United States?

E. Would My Facility Be Covered if It is a Point Source Discharger?

F. What are the Cooling Water Use and Design Intake Flow Thresholds in this Proposed Rule?

G. When Would a Phase III Existing Facility and New Offshore Oil and Gas Extraction Facility Be Required to Comply With Any New 316(b) Requirements?

H. What Special Definitions Apply to This Proposal?

III. Summary of Data Collection Activities

A. Survey Questionnaires

B. Existing Data Sources

C. Data Provided to EPA by Industrial, Trade, Consulting, Scientific or Environmental Organizations or by the General Public

IV. Overview of Facility Characteristics (Cooling Water Systems & Intake Structures) for Industries Potentially Subject to Proposed Rule

A. Overview of Potentially Regulated Phase III Universe

B. Existing Manufacturers and Industrial Facilities Potentially Subject to Proposed National Requirements

C. New Offshore Oil and Gas Facilities Subject to Proposed National Requirements

V. Environmental Impacts Associated With Cooling Water Intake Structures

VI. Basis for the Proposed Requirements

A. What is the Best Technology Available for Minimizing Adverse Environmental Impact at Phase III Existing Facilities?

B. Economic Practicability

C. What is the Proposed Role of Restoration and Trading?

VII. Implementation

A. When Would the Proposed Rule Become Effective?

B. What General Information Would I Be Required to Submit to the Director When I Apply for My Reissued NPDES Permit?

C. Phase III Existing Facility Implementation

D. New Offshore Oil and Gas Extraction Facilities

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

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

VIII. Economic Impact Analysis

A. Existing Phase III Facilities: Manufacturers and Electric Power Producers

B. New Offshore Oil and Gas Extraction Facilities

C. Summary of Total Social Costs and Impacts

IX. Benefits Analysis

A. Introduction

B. Study Design and Methods

C. Impingement and Entrainment

D. National Benefits

X. Comparison of Benefits and Costs

A. Benefit-Cost Analysis

B. Break-even Analysis

XI. Statutory and Executive Order Reviews

A. E.O. 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. E.O. 13175: Consultation and Coordination With Indian Tribal Governments

G. E.O. 13045: Protection of Children From Environmental Health Risks and Safety Risks

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

I. National Technology Transfer and Advancement Act

J. E.O. 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

K. E.O. 13158: Marine Protected Areas

L. Plain Language Directive

I. Legal Authority, Purpose, and Background of Today's Regulation

A. Legal Authority

Today's proposed rule is issued under the authority of sections 101, 301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act, 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, and 1370. Publication of this proposed rule fulfills an obligation of the U.S. Environmental Protection Agency (EPA) under a consent decree in

Riverkeeper, Inc.

v.

Leavitt,

No. 93 Civ. 0314, (S.D.N.Y).

B. Purpose of Today's Proposed Regulation

Section 316(b) of the Clean Water Act provides that any standard established pursuant to section 301 or 306 of the Clean Water Act and applicable to a point source must require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. Today's proposed rule would establish requirements reflecting the best technology available for minimizing adverse environmental impact, applicable to the location, design, construction, and capacity of cooling water intake structures at Phase III facilities (Phase I and Phase II are described in section I. C of today's preamble). Today's notice proposes the following three possible options for defining which existing facilities would be subject to categorical national requirements based on the design intake flow of cooling water intake structures at a facility and waterbody type: (1) The facility has a total design intake flow of 50 million gallons per day (MGD) or more and withdraws from any waterbody; (2) the facility has a total design intake flow of 200 MGD or more and withdraws from any waterbody; or (3) the facility has a total design intake flow of 100 MGD or more and withdraws water specifically from an ocean, estuary, tidal river, or one of the Great Lakes. Today's notice also proposes a design intake flow threshold of greater than 2 MGD for new offshore oil and gas extraction facilities consistent with the design intake flow threshold for new facilities in the Phase I rule. Under each of these co-proposed regulatory options, a Phase III facility must use at least 25 percent of the water withdrawn exclusively for cooling purposes and meet other specified criteria in order to be within the scope of the rule (

see

Section II—Scope and Applicability of Proposed Rule).

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 Clean Water Act 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 United States, 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 limitations in NPDES permits based on effluent limitations guidelines and standards and water quality standards.

Section 316(b) addresses the adverse environmental impact caused by the intake of cooling water, not discharges into water. Despite this special focus, the requirements of section 316(b) are closely linked to several of the core elements of the NPDES permit program established under section 402 of the Clean Water Act to control discharges of pollutants into navigable waters. For example, while effluent limitations apply to the discharge of pollutants by NPDES-permitted point sources to waters of the United States, section 316(b) applies to facilities subject to NPDES requirements that withdraw water from waters of the United States for cooling and that use a cooling water intake structure to do so.

Section 402 of the Clean Water Act 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 United States. Forty-five States and one U.S. territory are currently 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 established pursuant to section 301 or section 306. Effluent

limitations may be based on Federal effluent limitations guidelines, new source performance standards, or the best professional judgment of the permit writer. Limitations based on these guidelines, standards, or best professional judgment are known as technology-based effluent limits. Where technology-based effluent limits are inadequate to ensure attainment of water quality standards applicable to the receiving water, section 301(b)(1)(C) of the Clean Water Act requires permits to include more stringent limits based on applicable water quality standards. NPDES permits also routinely include monitoring and reporting requirements, standard conditions, and special conditions. In addition, NPDES permits contain conditions to implement the requirements of section 316(b). Section 301 of the Clean Water Act prohibits the discharge of any pollutant by any person, except in compliance with specified statutory requirements, including section 402.

Section 510 of the Clean Water Act provides that, except as provided in the Clean Water Act, nothing in the Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce any requirement respecting control or abatement of pollution; except that if a limitation, prohibition or standard of performance is in effect under the Clean Water Act, such State or political subdivision may not adopt or enforce any other limitation, prohibition or standard of performance which is less stringent than the limitation, prohibition or standard of performance under the Act. EPA interprets this to reserve for the States authority to implement requirements that are more stringent than the Federal requirements under State law.

PUD No. 1 of Jefferson County. Washington Dep't of Ecology,

511 U.S. 700, 705 (1994).

Sections 301, 304, and 306 of the Clean Water Act require that EPA develop technology-based effluent limitations guidelines and new source performance standards that are used as the basis for technology-based minimum discharge requirements in wastewater discharge permits. EPA issues these effluent limitations guidelines and standards for categories of industrial dischargers based on the pollutants of concern discharged by the industry, the degree of control that can be attained using various levels of pollution control technology, consideration of economics, as appropriate to each level of control, and other factors identified in sections 304 and 306 of the Clean Water Act (such as non-water quality environmental impacts including energy impacts). EPA has promulgated regulations setting effluent limitations guidelines and standards under sections 301, 304, and 306 of the Clean Water Act for more than 50 industries. See 40 CFR 405 through 471. EPA has established effluent limitations guidelines and standards 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, and chemical manufacturing).

Section 316(b) states, in full:

Any standard established pursuant to section 301 or section 306 of [the Clean Water] Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.

The phrase “best technology available” in Clean Water Act section 316(b) is not defined in the statute, but its meaning can be understood in light of similar phrases used elsewhere in the Clean Water Act. See

Riverkeeper

v.

EPA,

slip op. at 11 (2nd Cir. Feb. 3, 2004) (noting that the cross-reference in Clean Water Act section 316(b) to Clean Water Act section 306 “is an invitation to look at section 306 for guidance in determining what factors Congress intended the EPA to consider in determining ‘best technology available’ for new sources.”).

In sections 301 and 306, Congress directed EPA to set effluent discharge standards for new sources based on the “best available demonstrated control technology” and for existing sources based on the “best available technology economically achievable.” For new sources, section 306(b)(1)(B) directs EPA to establish “standards of performance.” The phrase “standards of performance” under section 306(a)(1) is defined as being the effluent reduction that is “achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives. * * *” This is commonly referred to as “best available demonstrated technology” or “BADT.” For existing dischargers, section 301(b)(1)(A) requires the establishment of effluent limitations based on “the application of best practicable control technology currently available.” This is commonly referred to as “best practicable technology” or “BPT.” Further, section 301(b)(2)(A) directs EPA to establish effluent limitations for certain classes of pollutants “which shall require the application of the best available technology economically achievable.” This is commonly referred to as “best available technology” or “BAT.” Section 301 specifies that both BPT and BAT limitations must reflect determinations made by EPA under Clean Water Act section 304. Under these provisions, the limitations on the discharge of pollutants from point sources are based upon the capabilities of the equipment or “control technologies” available to control those discharges.

The phrases “best available demonstrated technology” and “best available technology”—like “best technology available” in Clean Water Act section 316(b)—are not defined in the statute. However, section 304 of the Clean Water Act specifies factors to be considered in establishing the best practicable control technology currently available and best available technology.

For best practicable control technology currently available, the Clean Water Act directs EPA to consider:

the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of the equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as [EPA] deems appropriate.

33 U.S.C. 1314(b)(1)(b).

For “best available technology,” the Clean Water Act directs EPA to consider:

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

33 U.S.C. 1314(b)(2)(B).

Section 316(b) expressly refers to section 301, and the phrase “best technology available” is very similar to “best available technology” in that section. These facts, coupled with the brevity of section 316(b) itself, prompted EPA to look to section 301 and, ultimately, section 304 for guidance in determining the “best technology available to minimize adverse environmental impact” of cooling water intake structures for existing Phase II facilities.

By the same token, however, there are significant differences between section 316(b) and sections 301 and 304.

See Riverkeeper, Inc.

v.

United States Environmental Protection Agency,

slip op. at 13 (2nd Cir. Feb. 3, 2004) (“not every statutory directive contained [in

sections 301 and 306] is applicable” to a section 316(b) rulemaking). Section 316(b) requires that cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. In contrast to the effluent limitations provisions, the object of the “best technology available” is explicitly articulated by reference to the receiving water: To minimize adverse environmental impact in the waters from which cooling water is withdrawn. This difference is reflected in EPA's past practices in implementing sections 301, 304, and 316(b). While EPA has established effluent limitations guidelines based on the efficacy of one or more technologies to reduce pollutants in wastewater, considering costs, but without necessarily considering the impact on the receiving waters, EPA has previously considered the costs of technologies in relation to the benefits of minimizing adverse environmental impact in establishing section 316(b) limits.

In Re Public Service Co. of New Hampshire,

10 ERC 1257 (June 17, 1977);

In Re Public Service Co. of New Hampshire,

1 EAD 455 (Aug. 4, 1978);

Seacoast Anti-Pollution League

v.

Costle,

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

For this Phase III rulemaking, EPA therefore interprets Clean Water Act section 316(b) as authorizing EPA to consider not only technologies but also their effects on and benefits to the water from which the cooling water is withdrawn. Based on these two considerations, today's proposed rule establishes national requirements for facilities to install technology, as appropriate, that is technically available, economically practicable, cost-effective, and justified by the benefits to the source waterbody.

At this time, EPA is co-proposing all three options discussed above because it sees advantages to each. EPA is also considering an alternative under which EPA would not promulgate, at this time, categorical requirements under section 316(b) for cooling water intake structures unregulated by Phase I and Phase II. Rather, EPA would continue to rely on the best professional judgment of the permitting authority to determine the best technology available to minimize adverse environmental impact, in order to allow these requirements to be better tailored to local conditions.

2. Consent Decree

Publication of this proposal fulfills one of EPA's obligations to comply with a consent decree, as amended. The Second Amended Consent Decree, which is relevant to today's proposed rule, was filed on November 25, 2002, in the United States District Court, Southern District of New York, in

Riverkeeper, Inc.

v.

Leavitt,

No. 93 Civ 0314 (AGS). That case was brought against EPA by a coalition of individuals and environmental groups. The original Consent Decree, filed on October 10, 1995, provided that EPA was to propose regulations implementing section 316(b) by July 2, 1999, and take final action with respect to those regulations by August 13, 2001. Under subsequent interim orders, the Amended Consent Decree filed on November 22, 2000, and the Second Amended Consent Decree, EPA divided the rulemaking into three phases. EPA took final action on a rule governing cooling water intake structures used by new facilities (Phase I) on November 9, 2001 (66 FR 65255, December 18, 2001). EPA took final action on a rule governing cooling water intake structures used by large existing power producers (Phase II) on February 16, 2004 (69 FR 41576, July 9, 2004). The consent decree further requires that EPA propose regulations applicable to, at a minimum, existing facilities using cooling water intake structures with intake flows above a minimum threshold to be determined by EPA, in the following categories: power producers not covered by the Phase II regulations, pulp and paper manufacturing, petroleum and coal products manufacturing, chemical and allied products manufacturing, and primary metal manufacturing (Phase III). EPA is required to propose regulations for Phase III facilities by November 1, 2004, and take final action by June 1, 2006.

3. What Other EPA Rulemakings and Guidance Address Cooling Water Intake Structures?

In April 1976, EPA published a final rule under section 316(b) that addressed cooling water intake structures. 41 FR 17387 (April 26, 1976), see also the proposed rule at 38 FR 34410 (December 13, 1973). The rule added a new § 401.14 to 40 CFR Chapter I that reiterated the requirements of Clean Water Act section 316(b). It also added a new part 402, which included three sections: (1) Section 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 those 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). The regulation at 40 CFR 401.14, which reiterates the statutory requirement, remains in effect.

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) Pub. L. 92-500

(U.S. EPA, 1977). This draft guidance described the studies recommended for evaluating the impact of cooling water intake structures on the aquatic environment and recommended 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 was also consistent with the approach described in the 1976 Development Document referenced in the remanded regulation.

The 1977 section 316(b) draft guidance suggested a general process for developing information needed to

support section 316(b) decisions and presenting that information to the permitting authority. The process involved 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 suggested a stepwise approach that considers screening systems, size, location, capacity, and other factors.

Although the draft guidance described the information that should be developed, key factors that should be considered, and a process for supporting section 316(b) determinations, it did not establish uniform technology-based national standards for best technology available for minimizing adverse environmental impact. Rather, the guidance left the decisions on the appropriate location, design, capacity, and construction of cooling water intake structures to the permitting authority. Under this framework, the Director determined whether appropriate studies have been performed, whether a given facility has minimized adverse environmental impact, and what, if any, technologies may be required.

4. Phase I New Facility Rule

On November 9, 2001, EPA took final action on regulations governing cooling water intake structures at new facilities. 66 FR 65255 (December 18, 2001). On December 26, 2002, EPA made minor changes to the Phase I regulations. 67 FR 78947. The final Phase I new facility rule (40 CFR 125, Subpart I) establishes requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities that withdraw greater than two (2) million gallons per day (MGD) and use at least twenty-five (25) percent of the water they withdraw solely for cooling purposes. In the new facility rule, EPA adopted a two-track approach. Under Track I, for facilities with a design intake flow more than 10 MGD, the intake flow of the cooling water intake structure is restricted, at a minimum, to a level commensurate with that which could be attained by use of a closed-cycle, recirculating cooling system. For facilities with a design intake flow greater than 2 MGD, the design through-screen intake velocity is restricted to 0.5 feet per second and the total quantity of intake is restricted to a proportion of the mean annual flow of a freshwater river or stream, or to maintain the natural thermal stratification or turnover patterns (where present) of a lake or reservoir except in cases where the disruption is beneficial, or to a percentage of the tidal excursions of a tidal river or estuary. If certain environmental conditions exist, an applicant with intake capacity greater than 10 MGD must select and implement appropriate design and construction technologies for minimizing impingement mortality and entrainment. (Applicants with 2 to 10 MGD flows are not required to reduce intake flow to a level commensurate with a closed-cycle, recirculating cooling system, but must install technologies for reducing entrainment at all locations.) Under Track II, the applicant has the opportunity to demonstrate to the Director that the technologies he employs will reduce the level of adverse environmental impact to a comparable level to what would be achieved by meeting the Track I requirements for restricting intake flow and velocity. As part of this demonstration, EPA initially had allowed the applicant to employ control measures other than reducing impingement mortality and entrainment, including restoration measures that would result in increases in fish and shellfish, comparable to the reduction in impingement mortality and entrainment it would achieve were it to implement the Track I intake flow and velocity requirements. However, in February 2004, the 2nd Circuit Court of Appeals issued a decision in response to several petitions challenging the final Phase I rule. The Court found that EPA exceeded its authority by allowing new facilities to comply with section 316(b) through restoration methods, and remanded that aspect of the rule to EPA.

Riverkeeper, Inc.

v.

EPA,

358 F.3d 174, 191 (2nd Cir., 2004).

Directors may establish less stringent alternative requirements for a facility if compliance with the Phase I standards would result in compliance costs wholly out of proportion to those EPA considered in establishing the requirements at issue or would result in significant adverse impacts on local air quality, water resources, or local energy markets.

With the new facility rule, EPA promulgated national minimum requirements for the location, design, capacity, and construction of cooling water intake structures at new facilities. The final new facility rule establishes a reasonable framework that creates certainty for permitting of new facilities, while providing significant flexibility to take site-specific factors into account.

EPA specifically excluded new offshore oil and gas extraction facilities from the Phase I new facility rule, but committed to consider establishing requirements for such facilities in the Phase III rulemaking. 66 FR 65338 (December 18, 2001).

5. Phase II Existing Facility Rule

On February 16, 2004, EPA took final action on regulations governing cooling water intake structures at certain existing power producing facilities. 69 FR 41576 (July 9, 2004). The final Phase II rule applies to existing facilities that are point sources; that, as their primary activity, both generate and transmit electric power or generate electric power for sale or transmission; that use or propose to use a cooling water intake structure with a total design intake flow of 50 MGD or more to withdraw water from waters of the United States; and that use at least 25 percent of the withdrawn water exclusively for cooling purposes.

Under the Phase II rule, EPA established performance standards for the reduction of impingement mortality and, when appropriate, entrainment (

see

40 CFR 125.94). The performance standards consist of ranges of reductions in impingement mortality and/or entrainment (

e.g.

, reduce impingement mortality by 80 to 95 percent and/or entrainment by 60 to 90 percent). These performance standards reflect the best technology available for minimizing adverse environmental impacts. The type of performance standard applicable to a particular facility (

i.e.

, reductions in impingement mortality only or impingement mortality and entrainment) is based on several factors, including the facility's location (

i.e.

, source waterbody), rate of use (capacity utilization rate), and the proportion of the waterbody withdrawn. In most cases, EPA believes that these performance standards can be met using design and construction technologies or operational measures. The performance standards also can be met, in whole or in part, by using restoration measures, following consideration of design and construction technologies or operational measures, and provided such measures meet certain specified requirements. (

See

40 CFR 125.94(c)).

The Phase II rule identifies five alternatives to achieve compliance with the requirements for best technology available for minimizing adverse environmental impacts associated with cooling water intake structures. A facility must demonstrate to the Director one of the following: (1) That it has already reduced its flow commensurate with a closed-cycle recirculating system

(to meet performance standards for impingement and entrainment), or that it has already reduced its design intake velocity to 0.5 feet per second or less (to meet the impingement performance standard only); (2) that its current cooling water intake structure configuration meets the applicable performance standards; (3) that it has selected design and construction technologies, operational measures, and/or restoration measures that, in combination with any existing design and construction technologies, operational measures, and/or restoration measures, meet the applicable performance standards; (4) that it meets the applicability criteria and has installed and is properly operating and maintaining a rule-specified and/or State-specified approved design and construction technology (

i.e.

, submerged cylindrical wedgewire screen) in accordance with 40 CFR 125.99(a) or an alternative technology that meets the appropriate performance standards and is approved by the Director in accordance with 40 CFR 125.99(b); or (5) that its costs of compliance would be significantly greater than the costs considered by the Administrator for a like facility to meet the applicable performance standards, or than the benefits of meeting the applicable performance standards at the facility. A discussion of the legal authority and basis for the use of the cost test is found in section VI of this preamble.

During the first permit term and subsequent permit terms, a facility that chooses compliance alternatives two (2) through five (5), as described above, may request that compliance with the requirements of the rule be determined based on the implementation of a Technology Installation and Operation Plan (TIOP), indicating how the facility will install and ensure the efficacy, to the extent practicable, of design and construction technologies and/or operational measures, and/or a Restoration Plan. Adaptive management practices must be employed to ensure compliance during subsequent permit terms. The TIOP must be developed and submitted to the Director in accordance with 40 CFR 125.95(b)(4)(ii). The Restoration Plan must be developed in accordance with 40 CFR 125.95(b)(5).

6. Public Participation

EPA worked extensively with stakeholders from the industry, public interest groups, State agencies, and other Federal agencies in the development of this proposed rule. EPA included industry groups, environmental groups, and other government entities in the development, testing, refinement, and completion of the section 316(b) survey, which was used as a primary source of data for the Phase III proposed rule. As discussed in section III of today's preamble, the survey, “Information Collection Request, Detailed Industry Questionnaires: Phase II Cooling Water Intake Structures & Watershed Case Study Short Questionnaire,” was initiated in 1997, and was used to collect data during 1998. EPA conducted two public meetings on section 316(b) issues. In June of 1998, EPA conducted a public meeting focused on a draft regulatory framework for assessing potential adverse environmental impact from impingement mortality and entrainment. 63 FR 27958 (May 21, 1998). A second public meeting was held in September of 1998, and focused on technology, cost, and mitigation issues. 63 FR 40683 (July 30, 1998). In addition, in September of 1998, and April of 1999, EPA participated in technical workshops sponsored by the Electric Power Research Institute on issues relating to the definition and assessment of adverse environmental impact. EPA also participated in other industry conferences, and has met with representatives of industry and environmental groups.

In the months leading up to publication of the proposed Phase I 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. Participants included representatives of the electric power industry, as well as the petroleum refining, pulp and paper, and iron and steel industries. EPA also met with environmental groups, States, and interstate groups. After publication of the proposed Phase I rule, EPA continued to meet with stakeholders. Summaries of these meetings are in the docket. EPA also received many comments on the Phase I proposed rule (65 FR 49059, August 10, 2000) and Notice of Data Availability (NODA). (66 FR 28853, May 25, 2001). These comments informed the development of the Phase II rule and this Phase III proposed rule.

In January 2001, EPA attended technical workshops organized by the Electric Power Research Institute and the Utilities Water Act Group. These workshops focused on key issues associated with different regulatory approaches considered under the Phase I proposed rule and alternatives for addressing section 316(b) requirements.

On May 23, 2001, EPA held a day-long forum to discuss specific issues associated with the development of regulations under section 316(b) of the Clean Water Act. 66 FR 20658 (April 24, 2001). At the meeting, 17 experts from industry, public interest groups, States, and academia reviewed and discussed the Agency's preliminary data on cooling water intake structure technologies that are in place at existing facilities and the costs associated with the use of available technologies for reducing impingement mortality and entrainment. Over 120 people attended the meeting.

On August 21, 2001, EPA participated in a technical symposium sponsored by the Electric Power Research Institute in association with the American Fisheries Society on issues relating to the definition and assessment of adverse environmental impact under section 316(b) of the Clean Water Act.

During development of the Phase I and Phase II rules, EPA coordinated with the Nuclear Regulatory Commission (NRC) to ensure that there would not be a conflict with NRC safety requirements. NRC reviewed the proposed Phase II rule and did not identify any apparent conflict with nuclear plant safety. NRC licensees would continue to be obligated to meet NRC requirements for design and reliable operation of cooling systems. NRC recommended that EPA consider adding language which states that in cases of conflict between an EPA requirement and an NRC safety requirement, the NRC safety requirement takes precedence. EPA added language to address this concern in the Phase II final rule and this proposed rule.

EPA sponsored a

Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms,

on May 6-7, 2003. This symposium brought together professionals from Federal, State, and Tribal regulatory agencies; industry; environmental organizations; engineering consulting firms; science and research organizations; academia; and others concerned with mitigating harm to the aquatic environment by cooling water intake structures. Efficacy and costs of various technologies to mitigate impacts to aquatic organisms from cooling water intake structures, as well as research and other future needs, were discussed.

During the development of this proposed regulation, EPA met several times with trade associations whose members would be subject to the Phase III requirements. EPA also conducted Phase III-specific data collection activities, including a study of entrainment at manufacturing facilities, contacting Phase III facilities to request

biological studies and conducted an industry survey of offshore oil and gas extraction facilities and seafood processing vessels.

Finally, EPA convened a Small Business Advocacy Review (SBAR) panel (in accordance with the Regulatory Flexibility Act section 609(b) as amended by the Small Business Regulatory and Enforcement Fairness Act) to provide information to small entities and receive feedback during the Phase III rulemaking process. EPA hosted a pre-panel outreach meeting for small entities potentially subject to Phase III on January 22, 2004. The SBAR panel held an outreach meeting with small entity representatives (SERs) on March 16, 2004. Based on the information gathered from the participating small entities during these outreach meetings and subsequent correspondence, the SBAR panel produced a final report to the EPA Administrator on April 27, 2004. Results of the final report were considered in the development of this proposed Phase III rule.

These coordination efforts and all of the meetings described in this section, as well as the comments submitted on the Phase I and II section 316(b) rules and EPA's response to these comments, are documented or summarized in the dockets for these three rules. The Administrative Record for today's proposal includes all materials from the Phase I, Phase II, and Phase III section 316(b) rule dockets.

II. Scope and Applicability of the Proposed Rule

Based on the co-proposed flow thresholds based options in today's proposed rule, the proposed national categorical requirements would apply to two groups of facilities: (1) Existing manufacturing facilities (including but not limited to chemical, metal, pulp and paper, and petroleum refining facilities), and (2) new offshore oil and gas extraction facilities. In today's proposed rule, the term “new offshore oil and gas extraction facility” is defined to include facilities in both the offshore and the coastal subcategories of EPA's Oil and Gas Extraction Point Source Category for which effluent limitations are established at 40 CFR part 435. Although the term “offshore” denotes only one of these two subcategories for purposes of the effluent guidelines, EPA decided that it was more efficient to use the term “offshore” to denote facilities in either subcategory for purposes of today's rule because the proposed requirements are the same for both offshore and coastal facilities and the term “offshore” is commonly understood to include any facilities not located on land. EPA requests comment on whether this definition is likely to cause confusion over the scope of covered facilities. In order to be covered by today's proposed rule, these facilities would need to use cooling water intake structures to withdraw water from waters of the U.S. and meet all other applicability criteria, described below.

Existing facilities that meet all of the following criteria would be subject to today's proposed rule, if promulgated as proposed (

see

§ 125.101).

• The facility is a point source that has or is required to have an NPDES permit under section 402 of the Clean Water Act;

• The facility is an existing facility not subject to the Phase II regulation;

• The facility uses at least 25 percent of water withdrawn exclusively for cooling purposes, measured on an average annual basis; and

• The facility uses, or proposes to use, cooling water intake structures, including a cooling water intake structure operated by an independent supplier (other than a public water system), with a total design intake flow equal to or greater than a certain threshold to withdraw cooling water from waters of the United States.

Today's proposed rule co-proposes three options based on design intake flow and source waterbody type for defining which existing facilities are Phase III existing facilities subject to categorical national requirements:

• The facility has a total design intake flow of 50 MGD or more, and withdraws from any waterbody type (“50 MGD All Waterbodies”);

• The facility has a total design intake flow of 200 MGD or more, and withdraws from any waterbody type (“200 MGD All Waterbodies”);

• The facility has a total design intake flow of 100 MGD or more and withdraws water from an ocean, estuary, tidal river, or one of the Great Lakes (“100 MGD Certain Waterbodies”).

A facility meeting the above criteria, including any flow threshold EPA adopts after considering comments on the three co-proposed options, would be referred to as a “Phase III existing facility.” If an existing facility does not meet the relevant Phase II or Phase III cooling water use and intake flow thresholds by itself, and is co-located with an existing facility that is not subject to the Phase II regulation (

e.g.,

a power producing facility below the Phase II flow threshold, or a manufacturing facility), both facilities would still be subject to Phase III requirements if the cooling water used collectively by the co-located facilities meets the applicable thresholds (and the facilities meet the other requisite Phase III criteria). Co-located facilities adjoin each other and are under common ownership, operation, or management. If a facility is a point source that uses a cooling water intake structure and has, or is required to have, an NPDES permit, but does not meet the proposed applicable design intake flow/source waterbody threshold or the 25 percent cooling water use threshold, it would continue to be subject to permit conditions implementing CWA section 316(b) set by the permit director on a case-by-case, best professional judgment basis.

Today's notice also proposes requirements for new offshore oil and gas extraction facilities, which were specifically excluded from the Phase I new facility rule. (40 CFR 125 Subpart I). Section II.B of the preamble discusses what constitutes a “new” offshore oil and gas extraction facility for purposes of the section 316(b) proposed Phase III rule. Requirements for new offshore oil and gas extraction facilities are proposed in 40 CFR Subpart N. EPA is seeking comment on the requirements contained in this subpart. EPA is not seeking comment on the Phase I rule that EPA promulgated in 2001.

Finally, under today's proposed rule a seafood processing vessel or an offshore liquefied natural gas import terminal would not be subject to national categorical requirements. Such a facility could be subject to permit conditions implementing CWA section 316(b) set by the permit director on a case-by-case, best professional judgment basis where the facility is a point source that uses a cooling water intake structure and has, or is required to have, an NPDES permit.

A. What Is a “New” Offshore Oil and Gas Extraction Facility for Purposes of the Section 316(b) Proposed Phase III Rule?

For purposes of this proposed rule, new offshore oil and gas extraction facilities are those facilities that are subject to the Oil and Gas Extraction Point Source Category Effluent Guidelines (

i.e.,

40 CFR 435.10 Offshore Subcategory or 40 CFR 435.40 Coastal Subcategory); that commence construction more than 60 days after publication of the final rule; and that meet all other aspects of the “new facility” definition in § 125.83 (other than the date for commencing construction). In other words, in order to be covered by today's proposed rule, a new offshore oil and gas extraction facility would have to be a new source or new discharger per 40 CFR 122.2 and 122.29, a greenfield or stand-alone

facility, and use either 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.

B. What Is an “Existing Facility” for Purposes of the Section 316(b) Proposed Phase III Rule?

In today's proposed rule, the definition of “existing facility” is the same as in the Phase II rule except for additional language addressing new offshore oil and gas extraction facilities: any facility that commenced construction on or before January 17, 2002 (or 60 days after publication of the final rule for an offshore oil and gas extraction facility), as described in 40 CFR 122.29(b)(4).

1

January 17, 2002 is the effective date of the Phase I new facility rule and, therefore, the date for distinguishing new facilities from existing ones. However, offshore oil and gas extraction facilities were not subject to the Phase I new facility rule, but rather, would be subject to requirements under this proposed Phase III rule. Therefore, the effective date of the final Phase III rule would be the date for distinguishing new offshore oil and gas extraction facilities from existing ones. An “existing facility” under this proposed rule would include modifications and additions to existing facilities, that do not meet the definition of a new facility under the Phase I rule (40 CFR 125.83). That definition states:

1

Construction is commenced if the owner or operator has undertaken certain installation and site preparation activities that are part of a continuous on-site construction program, and it includes entering into certain specified binding contractual obligations as one criterion (40 CFR 122.29(b)(4)).

New facility

means any building, structure, facility, or installation that meets the definition of a “new source” or “new discharger” in [other NPDES regulations] and is a greenfield or stand-alone facility; 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 to accommodate the intake of additional cooling water. New facilities include 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). New facility does not include new units that are added to a facility for purposes of the same general industrial operation (for example, a new peaking unit at an electrical generating station).

2

2

The Phase I rule also listed examples of facilities that would be “new” facilities and facilities that would “not be considered a ‘new facility’ ” in two numbered paragraphs. These read as follows:

“(1) Examples of ‘new facilities’ include, but are not limited to: the following scenarios:

“(i) A new facility is constructed on a site that has never been used for industrial or commercial activity. It has a new cooling water intake structure for its own use.

“(ii) A facility is demolished and another facility is constructed in its place. The newly-constructed facility uses the original facility's cooling water intake structure, but modifies it to increase the design capacity to accommodate the intake of additional cooling water.

“(iii) A facility is constructed on the same property as an existing facility, but is a separate and independent industrial operation. The cooling water intake structure used by the original facility is modified by constructing a new intake bay for the use of the newly constructed facility or is otherwise modified to increase the intake capacity for the new facility.

“(2) Examples of facilities that would not be considered a ‘new facility’ include, but are not limited to, the following scenarios:

“(i) A facility in commercial or industrial operation is modified and either continues to use its original cooling water intake structure or uses a new or modified cooling water intake structure.

“(ii) A facility has an existing intake structure. Another facility (a separate and independent industrial operation), is constructed on the same property and connects to the facility's cooling water intake structure behind the intake pumps, and the design capacity of the cooling water intake structure has not been increased. This facility would not be considered a ‘new facility’ even if routine maintenance or repairs that do not increase the design capacity were performed on the intake structure.”

The definition in today's proposed regulation is intended to be consistent with EPA's definition of new facility in the Phase I rule (§ 125.83) and to ensure that sources excluded from the definition of new facility in the Phase I rule are captured by the definition of existing facility.

The determination of whether a facility is “new” or “existing” is focused on the point source discharger—not on the cooling water intake structure. In other words, modifications or additions to the cooling water intake structure (or even the total replacement of an existing cooling water intake structure with a new one) does not convert an otherwise unchanged existing facility into a new facility, regardless of the purpose of such changes. Rather, the determination as to whether a facility is new or existing focuses on the point source itself,

i.e.,

whether it is a greenfield facility or a stand-alone facility.

Under this proposed rule, an existing manufacturing facility that replaces or modifies an existing generating or manufacturing unit would remain subject to regulation as a Phase III existing facility, unless (1) the existing facility were completely demolished and another facility constructed in its place (a “greenfield” facility), or a separate facility with substantially independent processes were constructed on the property (a “stand-alone” facility) and (2) the new facility used either a new intake structure or the existing structure with an increased design capacity. To illustrate, an existing facility that undertook the following facility modifications or additions would continue to be characterized as an existing facility—not a new facility—under today's proposed rule:

• An existing manufacturing facility undergoes a modification of its process short of total replacement of the process and concurrently increases the design capacity of its existing cooling water intake structures;

• An existing manufacturing facility builds a new process at its site for purposes of the same industrial operation and concurrently increases the design capacity of its existing cooling water intake structures;

• An existing manufacturing facility completely rebuilds its process but uses the existing cooling water intake structure with no increase in design capacity.

Phase III existing facilities subject to today's proposed rule would also include point sources that are new users of cooling water intake structures, but do not meet the definition of new facility under § 125.83. For example, an existing facility may have historically withdrawn its cooling water from a municipal or other source, but then begins to withdraw cooling water from a water of the United States. This facility would be considered an existing facility because it is not a “greenfield” or “stand alone” facility within the meaning of the new facility rule. Similarly, a facility that previously relied on unit processes that do not require cooling water, and then adds or modifies a unit process for purposes of the same industrial operation such that cooling water is subsequently required, would also be regulated as an existing facility, not a new facility, under 316(b).

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

Today's proposed rule would adopt for Phase III facilities the same definition of a “cooling water intake structure” that applies to new facilities under the final Phase I rule and existing facilities under the final Phase II rule. A cooling water intake structure would be defined as the total physical structure and any associated constructed waterways used to withdraw cooling

water from waters of the Unites States. Under this definition, 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 proposed rule also would adopt the definition of “cooling water” used in the Phase I and Phase II rules: water used for contact or noncontact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content. The definition specifies that the intended use of cooling water is to absorb waste heat rejected from the processes used or auxiliary operations on the facility's premises. The definition also indicates that water used in a manufacturing process either before or after it is used for cooling is process water and would not be considered cooling water for purposes of determining whether the facility was using 25 percent or more of the water withdrawn for cooling purposes. This clarification is necessary because cooling water intake structures typically bring water into a facility for numerous purposes, including use in industrial processes; use as circulating water, service water, or evaporative cooling tower makeup water; dilution of effluent heat content; equipment cooling; and air conditioning. This is particularly true for manufacturers addressed under this proposed rule, who often seek to reduce water use and increase efficiency through water reuse. EPA does not wish to create a disincentive to such improved efficiency and recognizes that to do so could result in other forms of environmental impacts. Consequently, and consistent with the Phase I and Phase II rules, only the water used exclusively for cooling purposes would be counted when determining whether the 25 percent threshold in § 125.101(a)(4) or § 125.131(a)(2) is met.

This proposed definition of “cooling water intake structure” differs from the definition provided in the 1977

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

(U.S. EPA, 1977). The proposed rule definition would clarify that the cooling water intake structure includes the physical structure that extends from the point at which water is withdrawn from the surface water up to and including the intake pumps. Inclusion of the term “associated constructed waterways” in today's proposed rule is intended to clarify that the definition includes those canals, channels, connecting waterways, and similar structures that may be built or modified to facilitate the withdrawal of cooling water. The explicit inclusion of the intake pumps in the definition reflects the key role pumps play in determining the capacity (

i.e.,

dynamic capacity) of the intake. These pumps, which bring in water, are an essential component of the cooling water intake structure since without them the intake structure could not work as designed.

D. Would My Facility Be Covered if It Withdraws From Waters of the United States?

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

Some facilities discharge heated water to cooling ponds, then withdraw water from the ponds for cooling purposes. EPA recognizes that cooling ponds may, in certain circumstances, constitute part of a closed-cycled cooling system. See,

e.g.,

§ 125.102. However, EPA does not intend that this proposed rule would 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 of whether a particular cooling pond is a water of the United States is to be made by the permit writer on a case-by-case basis, informed by the discussions in

Solid Waste Agency of Northern Cook County (SWANCC)

v.

U.S. Army Corps of Engineers,

531 U.S. 159 (2001), and subsequent case law. Therefore, facilities that withdraw cooling water from cooling ponds that are waters of the United States and that would meet today's other proposed criteria for coverage (including the requirement that the facility has or will be required to obtain an NPDES permit) would be subject to today's proposed rule. The EPA and the U.S. Army Corps of Engineers have jointly issued jurisdictional guidance concerning the term “waters of the United States” in light of the Supreme Court's decision in

Solid Waste Agency of Northern Cook County

v.

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (SWANCC). A copy of that guidance was published as an Appendix to an Advanced Notice of Proposed Rulemaking on the definition of the phrase “waters of the U.S.,” see 68 FR 1991 (January 15, 2003), and may be obtained at

http://www.epa.gov/owow/wetlands/ANPRM-FR.pdf.

Proposed § 125.101(d) also provides, similar to the Phase I and Phase II rules, that facilities that obtain cooling water from a public water system or use treated effluent are not deemed to be using a cooling water intake structure for purposes of this proposed rule.

E. Would My Facility Be Covered if It Is a Point Source Discharger?

Today's proposed rule would apply only to facilities that are point sources (

i.e.,

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. This is the same requirement EPA included in the Phase I and Phase II final rules (

see,

40 CFR 125.81(a)(1), and 40 CFR 125.91(a)(1), respectively). Requirements for complying with section 316(b) will continue to be applied through NPDES permits.

Based on the Agency's review of potential Phase III facilities that employ cooling water intake structures, the Agency anticipates that most Phase III facilities that would be subject to this proposed rule control the intake structure that supplies them with cooling water, and discharge some combination of their cooling water, wastewater, and storm water to a water of the United States through a point source regulated by an NPDES permit. In this scenario, the requirements for the cooling water intake structure would be specified in the facility's NPDES permit. In the event that a Phase III facility's only NPDES permit is a general permit (

e.g.,

for oil and gas production) or a general permit for storm water discharges, the Agency anticipates that the Director may want to write an individual NPDES permit containing requirements for the facility's cooling water intake structure. Alternatively, requirements applicable to cooling water intake structures could be incorporated into general permits. If requirements are placed into a general permit, they must meet the criteria set out at 40 CFR 122.28.

The Agency also recognizes that some facilities that have or are required to have an NPDES permit might not own

and operate the intake structure that supplies their facility with cooling water. For example, manufacturing facilities operated by separate entities might be located on the same, adjacent, or nearby property(ies); one of these facilities might take in cooling water and then transfer it to other facilities prior to discharge of the cooling water to a water of the United States. Proposed § 125.101(c) of today's proposed rule would address such a situation. It provides that use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with one or more independent suppliers of cooling water if the supplier withdraws water from waters of the United States but is not itself subject to regulations under 316(b). This provision is intended to prevent facilities from circumventing the requirements of today's proposed rule by creating arrangements to receive cooling water from an entity that is not itself subject to national categorical requirements (

e.g.,

a facility that is not a point source).

For facilities that have or are required to have NPDES permits that do not directly control the intake structures that supply their facilities with cooling water, proposed § 125.101(d) also provides, similar to the Phase I and II rules, that facilities that obtain cooling water from a public water system or use treated effluent are not deemed to be using a cooling water intake structure for purposes of this proposed rule.

As stated in the preamble to the final Phase I rule (66 FR 65256, December 18, 2001), the Agency would encourage the Director to closely examine scenarios in which a facility withdraws significant amounts of cooling water from waters of the United States but is not required to obtain an NPDES permit. As appropriate, under this proposed rule, the Director would apply other legal requirements, such as section 404 or 401 of the Clean Water Act, the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, or similar State or Tribal authorities to address adverse environmental impact caused by cooling water intake structures at those facilities.

F. What Are the Cooling Water Use and Design Intake Flow Thresholds in This Proposed Rule?

This proposed rule would apply to existing facilities that meet the following thresholds: (1) Use at least twenty-five (25) percent of the water withdrawn exclusively for cooling purposes (measured on an average annual basis), and (2) have a total design intake flow equal to or greater than one of the three proposed thresholds , but are not subject to the Phase II rule. As previously discussed, EPA is proposing three possible flow threshold-based options in today's proposed rule (

i.e.,

50 MGD, 200 MGD, and 100 MGD

3

). The facility would also have to meet the other applicability criteria defined in § 125.101.

3

Note:

the 100 MGD flow threshold also specifies withdrawal from certain source waterbody types. The other proposed flow thresholds are not linked to source waterbody types.

The 25 percent exclusive cooling use threshold is the same as employed in the Phase I and II regulations. As in the Phase I and Phase II rules, water used for both cooling and non-cooling purposes would not count towards the 25 percent threshold. Thus, the proposed rule would not discourage the reuse of cooling water as process water or vice versa. Water that serves as cooling water but is either previously or subsequently used as process water would not be considered cooling water for purposes of determining whether the 25 percent threshold is met. Water withdrawn for non-cooling purposes would include water withdrawn for warming by liquified natural gas facilities, water used to power hydro-electric plants, and water withdrawn for public water systems by desalinization facilities.

Today's notice proposes three different options for defining which existing facilities are Phase III existing facilities subject to categorical national requirements. These options include existing facilities having a total design intake flow of: 50 MGD or more; 200 MGD or more; or 100 MGD or more if the facility withdraws water from an ocean, tidal river, estuary, or Great Lake. EPA is co-proposing these options because EPA believes that all three reflect potentially viable alternatives for balancing the many factors EPA considers in establishing best technology available for minimizing adverse environmental impact. These factors include the percentage of cooling water flow subject to national requirements, costs, benefits, cost-effectiveness, permitting burden and the need for flexibility in implementation, projected closures, and potential impacts on small businesses. Each of these factors are permissible for consideration under the CWA and each of these co-proposed options will fulfill CWA requirements. For example, considerations of costs, benefits, economically practicability and cost-effectiveness are appropriate factors under CWA sections 301 and 304 (

e.g.,

see discussion of Agency authority in section I). In addition, EPA is required to consider small business impacts under the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act. Accordingly, the discussion below focuses on the relative advantages and disadvantages of these co-proposed options and the proposed regulatory language reflects all three options.

i. Total Design Intake Flow of 50 MGD or More

Under this co-proposed option, facilities with a design intake flow of 50 MGD or greater, and that meet the other criteria in § 125.101, would be subject to the performance standards and compliance alternatives proposed in today's rule discussed below. Under this option, section 316(b) permit conditions for existing facilities with a design intake flow of less than 50 MGD would continue to be established on a case-by-case, best professional judgment basis.

EPA is co-proposing the 50 MGD threshold based on several factors. With a 50 MGD flow threshold, the proposed rule would regulate 75 percent of the design intake capacity, and 23 percent of the facilities (155 facilities) potentially covered by the Phase III rule,

4

thus subjecting the majority of design intake flows potentially included within the scope of the Phase III existing facility rule to national performance requirements. Use of a 50 MGD threshold would focus national section 316(b) requirements on those Phase III existing facilities with moderate to large design intake flows. These facilities pose a greater potential for causing significant adverse environmental impacts than those withdrawing less than 50 MGD. Assuming full implementation of the Phase II rule and today's proposed rule, at the co-proposed 50 MGD threshold, section 316(b) program requirements would regulate more than 97 percent of the total cooling water withdrawals associated with existing facilities. In addition, EPA estimates that use of a 50 MGD threshold would avoid facility closures under this proposed rule, and would reduce the cost of the proposed rule to permittees compared with the costs of a lower threshold.

4

Facilities “potentially covered by the Phase III rule” include all existing manufacturing and power producing facilities greater than 2 MGD that were not covered by the Phase II rule. There are an estimated 683 manufacturing and electric generating facilities (survey weighted) potentially covered by the Phase III rule, with a total design intake flow of 40,441 MGD.

EPA estimates this option would cost $47.3 to $50.1 million

5

or $348,000 to $368,000 on average annually per facility. Quantified benefits are $1.5 million to $1.9 million (annualized use value). Because this option covers the most facilities, it may also have the greatest ecological protection benefits, which EPA was not able to quantify. EPA estimates that this option would provide the highest quantified and monetized benefits of the co-proposed options but would also have the highest annualized costs, resulting in the lowest quantified benefits-to-cost ratio and the lowest (greatest negative) quantified net benefits among these options. See section X of this preamble for further discussion of benefits and costs.

5

Unless otherwise noted, cost and benefit ranges reflect the use of alternative discount rates (3% and 7%) in annualized 2003 dollars.

Finally, the co-proposed 50 MGD threshold would exclude small businesses from national rule requirements. This is consistent with the recommendations of the Small Business Advocacy Review Panel final report that EPA analyze a range of potential thresholds, particularly those between 20 MGD and 50 MGD, as a means of reducing potential economic impacts on small businesses while still achieving desired environmental benefits under the rule. See section XI.C for additional information. EPA estimates that setting an applicability threshold at 50 MGD would exclude all existing small entities potentially subject to the Phase III rule.

ii. Total Design Intake Flow of 200 MGD or More

Under this co-proposed option, facilities with a design intake flow of 200 MGD or greater and that meet the other criteria in § 125.101, would be subject to the performance standards and compliance alternatives proposed in today's notice and discussed above. Under this option, section 316(b) permit conditions for existing facilities not covered under the Phase II rule, with a design intake flow of less than 200 MGD, would continue to be established on a case-by-case, best professional judgment basis.

EPA is co-proposing the 200 MGD threshold based on several factors. With a 200 MGD flow threshold, the proposed rule would regulate 45 percent of the design intake capacity and approximately 5% of the facilities potentially covered by the Phase III rule. Assuming full implementation of the Phase II rule and today's proposed rule, at the co-proposed 200 MGD threshold, section 316(b) program requirements would regulate more than 94 percent of the total cooling water withdrawals associated with existing facilities withdrawing greater than 2 MGD.

EPA estimates this option would cost $22.8 to $24.1 million or $912,000 to $964,000 on average annually per facility. Quantified benefits are $0.98 to $1.26 million (annualized use value). The option would have a higher benefit-to-cost ratio yielding 66 percent of the quantified benefits at 48% of the costs and greater (lower negative) quantified net benefits compared to the 50 MGD option.

EPA estimates that use of a 200 MGD threshold would avoid facility closures under this proposed rule and would exclude all existing small entities.

iii. Facility Has a Total Design Intake Flow of 100 MGD or More and Withdraws Water From an Ocean, Tidal River, Estuary, or Great Lake

Under this co-proposed option, facilities located on estuaries, oceans, tidal rivers or streams, or one of the Great Lakes, with a design intake flow of 100 MGD or greater, and that meet the other criteria in § 125.101, would be subject to the performance standards and compliance alternatives proposed in today's rule and discussed below. Under this regulatory option, section 316(b) permit conditions for all existing facilities not covered under the Phase II rule, and located on freshwater rivers and streams or lakes and reservoirs, or with a design intake flow of less than 100 MGD would continue to be established on a case-by-case, best professional judgment basis.

Under this co-proposed option, 4 percent of the facilities potentially subject to regulation under Phase III would be subject to national requirements, and 18 percent of total design intake capacity associated with potential Phase III facilities would be addressed by such national requirements. Assuming full implementation of the Phase II rule and today's proposed rule, at the co-proposed 100 MGD threshold, section 316(b) program requirements would regulate more than 91 percent of the total cooling water withdrawals associated with existing facilities.

EPA estimates this option would cost $17.6 to $18.2 million or $926,000 to $958,000 on average annually per facility. Quantified benefits are $1.1 to 1.4 million (annualized use value). EPA estimates that this option would provide the second highest quantified benefits of the co-proposed options, and would have the lowest annualized costs when compared with the other two options, resulting in the highest quantified benefits-to-costs ratio and highest (least negative) quantified net benefits among the three options. This option would provide about 75 percent of the quantified benefits of the 50 MGD flow threshold option at about 36 percent of the cost by focusing the rule requirements on the most sensitive waterbodies.

EPA estimates that use of a 100 MGD threshold would avoid facility closures under this proposed rule and would exclude all existing small entities.

EPA requests comment on all aspects of each of these co-proposed options, including whether lower (

e.g.,

20 MGD) or higher (

e.g.,

250 MGD) thresholds should be considered, as well as whether different conditions (

e.g.,

related to waterbody type) should be combined with these or other thresholds. EPA also solicits comment on the resource implications for State permitting agencies associated with each of these options.

G. When Would a Phase III Existing Facility and New Offshore Oil and Gas Extraction Facility Be Required To Comply With Any New 316(b) Requirements?

If EPA were to promulgate today's proposed rule, the final rule would become effective sixty (60) days after the date of publication in the

Federal Register

. After the effective date of any such final regulation, existing manufacturers and new offshore oil and gas extraction Phase III facilities, including existing facilities not currently subject to cooling water intake requirements under 40 CFR 125, would need to comply when an NPDES permit containing requirements consistent with the final rule is issued to the facility (

see

§ 125.100 and § 125.132). Under current NPDES program regulations, this will occur when a new NPDES permit is issued or when an existing NPDES permit is issued, reissued, or modified or revoked and reissued. As in Phase II, the proposed rule for Phase III existing facilities includes special provisions to allow sufficient time to complete a Comprehensive Demonstration Study during the first permit renewal following promulgation of the Phase III rule (

see

§ 125.104(a)(2)(ii)).

A discussion of the timing of implementation of this proposed rule, if promulgated, is provided in section VII.

H. What Special Definitions Apply to This Proposal?

EPA is proposing specialized definitions to clarify which facilities are subject to national categorical requirements. For the new oil and gas extraction facility requirements in

Subpart N, EPA is proposing five new definitions to clarify those facilities subject to the requirements. These definitions are set forth in the proposed regulations at § 125.133 and include “new offshore oil and gas extraction facilities,” “offshore liquified natural gas import terminals,” “seafood processing vessels,” “sea chest” and “fixed facility”). The remainder of the proposed definitions are the same as those found in the final Phase I regulations; however, not all of the definitions from Phase I regulations have been used as they are not all applicable to these proposed Subpart N regulations.

EPA is also proposing definitions for Phase III existing facilities in Subpart K at § 125.102. All of these definitions are borrowed from both Phase I and Phase II and remain unchanged, except for the cutoff date in the definition of “existing facility” for new versus existing offshore oil and gas extraction facilities. Similar to the definitions for subpart N described above, not all of the definitions from Phase II regulations have been used as they are not all applicable to these proposed Subpart K regulations.

EPA solicits comment on these regulatory definitions.

III. Summary of Data Collection Activities

For the Phase III proposed rule, EPA focused its data collection activities on section 316(b) survey data supplemented by available existing data sources including the data developed for the Phase I and Phase II rules.

A. Survey Questionnaires

As discussed in the preamble to the Phase II final rule (69 FR 41576), EPA's industry survey effort consisted of a two-phase process. EPA administered a screener questionnaire focused on nonutility and manufacturing facilities as the first phase of this data collection process. The screener questionnaire provides information on cooling water intake capacity, sources of the water, intake structure types, and technologies used to minimize adverse environmental impacts. It also provides data on facility and parent firm employee numbers and revenues. This information was used to design a sampling plan for the subsequent detailed questionnaire. Following the screener survey, the Agency administered either a short technical or a detailed questionnaire to utility, nonutility, and manufacturing facilities, as described below. The two-phase survey was designed to collect representative data from a sample group of those categories of facilities potentially subject to section 316(b) regulation for use in rule development.

In 1997, EPA estimated that over 400,000 facilities could potentially be subject to a cooling water intake regulation. Given the large number of facilities potentially subject to regulation, EPA decided to focus its data collection efforts on six industrial categories that, as a whole, were estimated to account for over 99 percent of all cooling water withdrawals. These six sectors were: Utility Steam Electric, Nonutility Steam Electric, Chemicals & Allied Products, Primary Metals Industries, Petroleum & Coal Products, and Paper & Allied Products. At the time of the survey, there were about 48,500 facilities in these six categories. EPA believes that this approach provided a sound basis for assessing best technologies available for minimizing adverse environmental impacts.

The screener survey focused on nonutility and manufacturing facilities. EPA developed the sample frame (list of facilities) for the screener questionnaire using public data sources as described in the Information Collection Request (DCN 3-3084-R2 in Docket W-00-03). Facilities chosen for the screener questionnaire represented a statistical sample of the entire universe of nonutility and manufacturing facilities potentially subject to cooling water intake regulations. EPA did not conduct a census of all facilities (

i.e.

send a survey to all facilities) for the screener questionnaire because of the burden associated with surveying a large number of facilities. Rather, EPA refined the industry data using industry-specific sources to develop sample frames and mailing lists. EPA believes the sample frame was sufficient to characterize the operations of each industrial category. EPA sent the screener questionnaire to 2600 facilities identified in the sample frame as follows: (1) All identified steam electric nonutility power producers, both industrial self-generators and nonindustrial generators (1050 facilities, of which 853 responded); and (2) a sample of manufacturers from the four non-steam electric industrial categories: paper and allied products, chemical and allied products, petroleum and coal products, and primary metals (1550 facilities, of which 1217 responded). EPA adjusted the sample frame for the screener questionnaire to account for several categories of non-respondents, including facilities with incorrect address information, facilities no longer in operation, and duplicate mailings. Through follow-up phone calls and mailings, EPA increased the response rate for the screener questionnaire to 95 percent. The screener questionnaire was not sent to utilities, all of which were believed to be identified accurately using the publicly-available data described above.

A sample of manufacturing and nonutility facilities identified as in-scope (subject to regulation) by the screener questionnaire and all utilities then were sent either a short technical or a detailed questionnaire. A total of 878 utility facilities, 343 nonutility facilities and 191 manufacturing facilities received one of the two questionnaires (short technical or detailed) during the second phase of the survey. For utilities, nonutilities, and other manufacturing facilities, EPA selected a random sample of these eligible facilities to receive a detailed questionnaire. The sample included 282 utility facilities and 181 nonutility facilities. All 191 manufacturing facilities received a detailed questionnaire. For nonutilities and utilities, those facilities not selected to receive a detailed questionnaire were sent a Short Technical Questionnaire. EPA's approach in selecting a sample involved the identification of population strata, the calculation of sample sizes based on desired levels of precision, and the random selection of sites given the sample size calculations within each stratum. More detail is provided in the report entitled “Statistical Summary for Cooling Water Intakes Structures Surveys” (

See

DCN 3-3077 in Docket W-00-03).

Five questionnaires were distributed to different industrial groups. They were: (1) Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures—Traditional Steam Electric Utilities; (2) Short Technical Industry Questionnaire: Phase II Cooling Water Intake Structures—Traditional Steam Electric Utilities (sent to both utilities and nonutilities); (3) Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures—Steam Electric Nonutility Power Producers; (4) Detailed Industry Questionnaire: Phase III Cooling Water Intake Structures—Manufacturers; and, (5) Watershed Case Study Short Questionnaire. The questionnaires provided EPA with technical and financial data necessary for developing this proposed regulation. Specific details about the questions may be found in EPA's Information Collection Request (DCN 3-3084-R2 in Docket W-00-03) and in the questionnaires (

see

DCN 3-0030 and 3-0031 in Docket W-00-03 and Docket for today's proposal); these documents are also available on EPA's Web site

(

http://www.epa.gov/waterscience/316b/question/

).

EPA also conducted outreach to industry groups, environmental groups, and other government entities in the development, testing, and refinement of a second round of surveys, the section 316(b) Phase III Industry Technical and Economic Questionnaires, which have been used as an additional source of data for the Phase III rule. The Phase III surveys, published in September 2003, were sent to offshore oil and gas extraction facilities and seafood processing vessels. Specific details about the questions may be found in EPA's Information Collection Request (DCN 7-0007) and in the questionnaires (

see

DCN 7-0008) in the Docket for today's proposal); these documents are also available on EPA's Web site (

http://www.epa.gov/waterscience/316b/question/

). In addition, EPA utilized a survey conducted by the International Association of Drilling Contractors (IADC) in 2003 to access technical data on cooling water use by offshore oil and gas extraction facilities, including fixed platforms and mobile units.

B. Existing Data Sources

EPA collected data from multiple sources, both public and proprietary, in order to compile an accurate profile of the potentially regulated community. EPA reviewed information collected by other Federal agencies, as well as data compiled by private companies. In those instances where databases are considered confidential, or where raw data was unavailable for review, EPA did not consider the information. Summaries of the reviewed data sources are listed below.

1. Electric Generators

EPA collected a substantial amount of data on the electric power generating industry in the course of the Phase I, II, and III rulemakings. For example, EPA used data from the Federal Energy Regulatory Commission (FERC) (Forms 1 and 1-F), the Energy Information Administration (EIA) (Forms EIA-412, -767, -860, -861, -867), the Rural Utility Service (RUS) (Form 12), as well as information from the U.S. Nuclear Regulatory Commission (NRC), the Utility Data Institute (UDI), and the Edison Electric Institute (EEI). For detailed information about these data sources, refer to the proposed rule for Phase II (67 FR 17131).

While electric power generators do not meet the proposed flow thresholds and are therefore not subject to Phase III national requirements (refer to section VI for further details), EPA did use the aforementioned data on electric power generators in reaching this decision. Data was used to assess, for example, the cooling water intake flows and the amount of electricity generated, and as part of the determination of economic impacts of the various compliance alternatives that EPA considered in developing the proposed rule.

2. Manufacturers

In order to identify potential entrainment impacts at facilities with a design intake flow below 50 MGD, EPA conducted a field study of six manufacturers in the Spring of 2002. This study was conducted in the mid-Atlantic region, with particular focus on the Delaware River and its tributaries. Sampling sites were selected for three freshwater and three tidal river facilities. EPA conducted two 4-day sampling events at each facility and conducted measurements of the following variables: site location and sampling point, facility intake flow rate, sampling pump volume, sampling time and duration and sample chain of custody. Additional physicochemical variables were measured, including the following: temperature, dissolved oxygen (DO), pH, and conductivity. Taxonomic identification was conducted for all organisms collected and results are provided in the

Data Report for Small Facility Ichthyoplankton Entrainment Sampling for the Development of the 316(b) Phase III Rule for Cooling Water Intake Structures

(EPA, 2003) (DCN 7-0009).

In mid-June 2003, in order to supplement the biological data used for estimating baseline impingement mortality and entrainment rates, EPA compiled a list of facilities who had responded in their industry questionnaire that they had conducted a biological study. Some of these facilities were then requested to provide EPA with copies of these studies. The first data collection effort focused on facilities that are located on an inland waterbody and have a high average daily intake flow. Preference was given to facilities located on Lake Michigan and the Columbia River, as these waterbodies (and more broadly, these regions of the country) were identified as having inadequate data for future analysis of Phase III impingement mortality and entrainment rates. The second data collection effort focused on facilities located in particular U.S. Fish and Wildlife Service fish regions to be used by EPA in calculation of benefits for the rule. The last data collection effort focused specifically on Phase III facilities. In total, 90 facilities were contacted and these contacts resulted in collection of 63 biological studies (33 of which were from Phase III facilities) for use in estimation of baseline impingement mortality and entrainment rates.

3. Offshore Oil and Gas Extraction Facilities and Seafood Processing Vessels

EPA conducted extensive research on the use of cooling water by offshore oil and gas extraction facilities and seafood processing vessels to determine whether these industry sectors would be subject to regulation under the Phase III rule. Information sources included industry surveys (one administered by EPA in conjunction with the International Association of Drilling Contractors (IADC) and another solely by EPA); industry databases and other publicly available information, and meetings with government and industry representatives. The survey efforts are described in section III.A above.

In April and May of 2003, EPA conducted site visits and field interviews at offshore oil and gas extraction facilities and seafood processing vessels to evaluate technologies in use for reducing impingement mortality and/or entrainment at these facilities. EPA employed the services of a specialized naval engineer to conduct these site visits and field interviews. Site visits were conducted at platforms and vessels. In addition, field interviews were conducted with industry personnel. The data collected from these visits and interviews included geographic data, intake design and impingement and entrainment technologies in place, impingement and entrainment problems encountered as well as any methods utilized in resolving such problems (

See

DCN 7-0010).

Sources used by EPA to characterize the offshore seafood processing industry included the following:

• U.S. Food and Drug Administration (FDA), Center for Food Safety and Applied Nutrition, January 2003, which included a list of U.S. FDA-European Union (EU) Exporters, Processing Vessels.

• Alaska Department of Fish and Game 2002 Intent to Operate Listing.

• Water Discharge Permits (PCS) database searches by SIC codes 2091, 2092 and 2077.

• Department of Transportation Maritime Administration (MARAD) Web site:

http://www.marad.dot.gov/publications/index.html

and

http://www.marad.dot.gov/Marad_Statistics/index.html

.

• U.S. Coast Guard Merchant Vessels of the United States database.

• U.S. Coast Guard PSIX/MSIS databases.

• National Transportation Safety Board database.

• U.S. Army Corps of Engineers, Navigation Data Center, Waterborne Commerce Statistics Center.

• The Alaska Department of Fish and Game Division of Commercial Fisheries Web site:

http://www.cf.adfg.state.ak.us

.

• The At-Sea Processors Association Web site:

http://www.atsea.org/

.

• EPA Region 10 Database of seafood processors permitted in Alaska.

• Technical Development Document (TDD) for the Uniform National Discharge Standards (UNDS) program (found at

http://unds.bah.com/TDD.pdf

) (Appendix A: Seawater Cooling Overboard Discharge Report).

• National Marine Fisheries Service Web site, Restricted Access Management Program,

http://www.fakr.noaa.gov/ram/default.htm.

• National Marine Fisheries Services Web site, link to American Fisheries Act (AFA) permits:

http://www.fakr.noaa.gov/ram/afa.htm#list

.

• Several vessel operators, naval architects, engineers and regulators.

C. Data Provided to EPA by Industrial, Trade, Consulting, Scientific or Environmental Organizations or by the General Public

Since 1993, EPA has been developing cooling water regulations as part of a collaborative effort with industry and environmental stakeholders, other Federal agencies, the academic and scientific communities, and the general public. As a result, EPA has reviewed and considered the many documents, demonstration studies, scientific analyses, and historical perspectives offered in support of each phase of the regulatory process. For example, during the early stages of data gathering, EPA created an internal library of reference documents addressing cooling water intake structure issues. This library currently holds over 2,800 documents, many of which were referenced in the rulemaking process and are contained in the record (

see

the following paragraph for further information on the record). The library contains a thorough collection of a wide variety of documents, including over 80 section 316(b) demonstration documents, over 300 impingement and entrainment studies, over 100 population modeling studies, over 500 fish biology and stock assessment documents, over 350 biological studies commissioned by power generators, over 80 NPDES decisions and NPDES or SPDES-related documents, over 120 intake technology reports, over 10 databases on the electric power industry, and documents from interagency committees such as the Ohio River Valley Water Sanitation Commission (ORSANCO).

In addition, the record for the Phase I new facility rule contains nearly 1,000 documents (research articles, databases, legal references, memorandums, meeting notes, and other documents), consisting of approximately 47,000 pages of supporting material available for public review. And the record for the Phase II existing facility rule contains over 2600 additional documents, comprising approximately 125,000 pages of supporting material.

Finally, EPA has worked extensively with stakeholders from industry, public interest groups, State agencies, and other Federal agencies in the development of this proposed rule. These public participation activities have focused on various section 316(b) issues, including general issues, as well as issues relevant to development of the Phase II rule and issues relevant to this proposed Phase III rule.

See

section I.C.6 of this preamble for a discussion of key public participation activities.

IV. Overview of Facility Characteristics (Cooling Water Systems & Intake Structures) for Industries Potentially Subject to Proposed Rule

Today's proposed rule would apply national categorical requirements to two groups of facilities that use cooling water intake structures to withdraw water from waters of the U.S.: existing manufacturing and industrial facilities and new offshore oil and gas extraction facilities.

A. Overview of Potentially Regulated Phase III Universe

EPA's data collection efforts largely focused on five industrial sectors: small flow electric power generators (both utilities and nonutilities withdrawing less than 50 MGD); chemicals and allied products (SIC Major Group 28); primary metals industries (SIC Major Group 33); paper and allied products (SIC Major Group 26); and petroleum and coal products (SIC Major Group 29). The latter four sectors use a significant portion of the cooling water withdrawn among all manufacturing industries. EPA also identified other industry sectors that use cooling water including: transportation equipment (SIC Major Group 37); lumber and wood products (SIC Major Group 24); rubber and plastics products (SIC Major Group 30); food and kindred products (SIC Major Group 20); tobacco products (SIC Major Group 21); and machinery (SIC Major Group 35) (see DCN 7-0011). A more comprehensive list of industries that use cooling water and their NAICS and SIC Codes can be found in section A of the Supplementary Information. Although EPA's survey data collection efforts were not designed to collect data from industries other than the five listed above, data were collected from the following industries: food processing; aircraft engines and engine parts; cutlery; sawmills and planing mills; finishers of broad woven fabrics of cotton; potash, soda and borate minerals; iron ores; and sugarcane and sugar beets. These data from other industries, while not a statistically derived sample, confirm that the five primary industry sectors discussed above account for the vast majority of Phase III cooling water use. The data also suggest that the intake structure design and construction at these industries were substantially similar to the industries for which EPA did collect data.

Of the estimated 683 manufacturing and electric generator facilities (survey weighted estimate, as described in the

Technical Development Document

EPA-821-R-04-015, DCN 7-0004) within the Phase III universe,

6

approximately 225 (33 percent) belong to the pulp and paper sector, 185 (27 percent) belong to the chemical sector, 88 (13 percent) belong to the metals sector, and 39 (6 percent) belong to the petroleum sector. EPA also surveyed 29 facilities in other industry sectors (discussed above, all of which are potentially subject to the Phase III rule) in the detailed questionnaire, and those data are also being considered in today's proposed rule. In addition, an estimated 117 (17 percent) electric generating facilities are included within the Phase III universe.

6

The entire Phase III universe includes facilities with a design intake flow greater than 2 MGD which use at least 25 percent of the water withdrawn exclusively for cooling, and are not covered by Phase II. Offshore oil and gas extraction facilities are not included in this estimate.

The information below is generally based on data collected from the Short Technical Industry Questionnaire, the Detailed Industry Questionnaire, and the Phase III Industry Technical and Economic Questionnaires. Additional detail discussing the entire Phase III universe as well as facilities subject to the uniform national standards and facilities subject to permitting based on best professional judgment can be found in the Technical Development Document.

As explained in section V of this preamble, there are five main categories of surface water used as sources of cooling water. The source of surface water withdrawn for cooling is an

important factor in determining potential environmental impacts. An estimated 11 (2 percent) facilities withdraw cooling water from an ocean; an estimated 39 (6 percent) facilities withdraw cooling water from an estuary or tidal river; an estimated 496 (73 percent) facilities withdraw cooling water from a freshwater stream or river; an estimated 60 (9 percent) facilities withdraw cooling water from a lake or reservoir; and an estimated 77 (11 percent) facilities withdraw cooling water from one of the Great Lakes. EPA estimates a total design intake flow of 40,441 MGD and total actual intake flow of 21,624 MGD for the Phase III universe.

Of the facilities within the Phase III universe, 303 (44 percent) employ once-through cooling systems, 198 (29 percent) use closed-cycle recirculating cooling systems, 121 (18 percent) use “combination” systems, and 61 (9 percent) use an “other” type of system. An estimated 286 (42 percent) facilities have installed a cooling tower. Note that not all facilities that have installed a cooling tower are classified as using closed-cycle recirculating cooling systems, as some facilities with multiple cooling water systems may be “combination” systems that employ both closed-cycle and once-through cooling. Facilities may also list “helper” cooling towers, which are generally used to mitigate discharge temperatures and do not affect intake flows. Since facilities may have more than one cooling water system, these estimates are based on the predominant cooling water system at each facility.

Facilities within this universe also may have more than one cooling water intake structure configuration. Therefore, in providing the information on intake structures, a facility may be counted multiple times (as many times as it has distinct cooling water intake structure configurations). Thus, of the facilities within the Phase III universe, 683 facilities represent an estimated 747 total cooling water intake structure configurations. Of these, an estimated 359 (48 percent) have a shoreline intake, 216 (29 percent) have a submerged offshore intake, 123 (16 percent) withdraw cooling water through a canal or channel, 49 (7 percent) have an intake situated in a bay or cove, and 47 (6 percent) are estimated to have some other type of intake or provided no information.

B. Existing Manufacturers and Industrial Facilities Potentially Subject to Proposed National Requirements

This section presents the number of facilities that would be potentially subject to uniform national performance standards under each of the three co-proposed options.

See

section VI of this preamble and Chapter 4 of the Technical Development Document for details on the other options considered but not presented as part of today's proposal. Exhibit IV-1 provides the number of existing facilities by design intake flow and waterbody type. Throughout the rest of this section, tabulations of less than five facilities are combined to prevent disclosure of an individual facility's information.

Exhibit IV-1.—Total Number of Phase III Manufacturing Facilities Potentially Subject to the Regulations by Design Intake Flow and Waterbody Type

Facility design intake flow

Waterbody

Freshwater rivers and streams, lakes, and reservoirs

Oceans, estuaries, tidal rivers and streams, and Great Lakes

All waterbodies

2 MGD or greater

1

556

127

683

20 MGD or greater

1

302

92

394

50 MGD or greater

2

103

52

155

100 MGD or greater

2

47

26

73

200 MGD or greater

2

16

15

31

1

Includes those electric generating facilities defined as part of the Phase III universe.

2

Only includes manufacturing facilities.

1. National Requirements for Facilities With a Design Intake Flow of 50 MGD and Above

EPA's 50 MGD option would require an estimated 155 facilities to meet the uniform national standards that implement section 316(b) (facilities with a design intake flow of 50 MGD and above and meeting applicability criteria at § 125.101). These facilities are comprised of an estimated 56 (36 percent) within the chemical sector, 42 (27 percent) within the pulp and paper sector, 30 (19 percent) within the metals sector, 17 (11 percent) within the petroleum sector, and an estimated total of 10 facilities (7 percent) within the “other” category; no seafood processing vessels would meet the applicability criteria at § 125.101.

An estimated 6 (4 percent) facilities withdraw cooling water from an ocean; an estimated 15 (10 percent) facilities withdraw cooling water from an estuary or tidal river; an estimated 93 (60 percent) facilities withdraw cooling water from a freshwater stream or river; an estimated 10 (6 percent) facilities withdraw cooling water from a lake or reservoir; and an estimated 31 (20 percent) facilities withdraw from one of the Great Lakes.

EPA has estimated that these 155 facilities possess a total design intake flow of 30,136 MGD and an actual intake flow of 16,582 MGD.

Further, of the cooling water system types in use at these 155 facilities, 68 (44 percent) of these systems are once-through cooling systems, 6 (4 percent) are closed-cycle recirculating cooling systems, 56 (36 percent) are “combination” systems, and 25 (16 percent) use an “other” type of system. An estimated 52 (33 percent) facilities have installed a cooling tower. As noted above, not all facilities that have installed a cooling tower are classified as closed-cycle recirculating cooling system.

These 155 facilities possess an estimated 211 total cooling water intake structure configurations. Of these, an estimated 46 (23 percent) facilities withdraw cooling water through a canal or channel, 17 (11 percent) have an intake situated in a bay or cove, 89 (59 percent) have a shoreline intake, 31 (20 percent) have a submerged offshore intake, and 28 (5 percent) are estimated to have some other type of intake or provide no information.

2. National Requirements for Facilities With a Design Intake Flow of 200 MGD and Above

EPA's 200 MGD option would require an estimated 31 facilities to meet the uniform national standards that implement section 316(b) (facilities with a design intake flow of 200 MGD and above and meeting applicability criteria at § 125.101). These facilities are comprised of an estimated 15 (48 percent) within the metals sector, 7 (23 percent) within the chemical sector, and 9 (29 percent) within the petroleum sector, the pulp and paper sector, or the “other” industries category.

An estimated 5 (16 percent) facilities withdraw cooling water from an estuary or tidal river; an estimated 16 (50 percent) facilities withdraw cooling water from a freshwater stream or river, lake, or reservoir; and an estimated 10 (32 percent) facilities withdraw from one of the Great Lakes. EPA estimates that there are no manufacturing facilities with a design intake flow of 200 MGD or greater that withdraw from an ocean.

EPA has estimated that these 31 facilities possess a total design intake flow of 18,340 MGD and an actual intake flow of 11,472 MGD.

Further, of the cooling water system types in use at these 31 facilities, 17 (55 percent) of these systems are once-through cooling systems, and 14 (45 percent) are “combination” or “other” systems. An estimated 10 (32 percent) facilities have installed a cooling tower or closed-cycle recirculating system.

These 31 facilities possess an estimated 70 total cooling water intake structure configurations. Of these, an estimated 16 (23 percent) facilities withdraw cooling water through a canal or channel, 24 (34 percent) have a shoreline intake, and 30 (43 percent) have a submerged offshore intake.

3. National Requirements for Coastal and Great Lakes Facilities With a Design Intake Flow of 100 MGD and Above

EPA's third proposed option would establish national requirements for facilities with 100 MGD or more design intake flows when the intake is on coastal waters (including oceans, tidal rivers and streams, and estuaries) or one of the Great Lakes. This option would require an estimated 26 facilities to meet the uniform national standards. These facilities are comprised of an estimated 12 (46 percent) within the metals sector, 7 (27 percent) within the chemical sector, and the remaining 7 (27 percent) within the pulp and paper sector, the petroleum sector, or the “other” industries. EPA estimated that these 26 facilities possess a total design intake flow of 7,661 MGD and actual intake flow of 4,753 MGD.

Further, of the predominant system types in use at these 26 facilities, 13 (50 percent) of these systems are once-through cooling systems. The other estimated 13 facilities use a combination cooling system and have installed a cooling tower. These 26 facilities possess an estimated 47 total cooling water intake structure configurations. Of these, an estimated 11 (23.4 percent) facilities withdraw cooling water through a canal or channel, 21 (44.7 percent) have a shoreline intake, and 15 (31.9 percent) have a submerged offshore intake.

C. New Offshore Oil and Gas Extraction Facilities Subject to Proposed National Requirements

Today's proposed rule would also apply national requirements to new offshore (offshore includes coastal) oil and gas extraction facilities. EPA is presently considering new facilities within the offshore oil and gas extraction industry as classified under SIC Major Group 13. EPA projects that there will be an estimated 124 new offshore oil and gas extraction facilities over the next 20 years. Most of these facilities will withdraw less than 50 MGD estimated design intake flow and will include both mobile offshore drilling units (MODUs) and deepwater platforms in the Gulf of Mexico and Alaska. Only three new MODUs are projected to have a design intake flow of greater than 50 MGD within the period of analysis. EPA's projection of new oil and gas extraction facilities is based on historical refurbishment of old rigs including MMS data on new platform installations over the last 10 years.

See

Part C of the EA for more information. Note most new offshore and coastal oil and gas extraction facilities to which today's proposed rule would apply would not be operating in estuaries, except for those operating in Cook Inlet.

V. Environmental Impacts Associated With Cooling Water Intake Structures

Through the Phase III rulemaking, EPA intends to minimize the adverse environmental impacts of cooling water intake structures by reducing the number of aquatic organisms lost as a result of water withdrawals associated with these structures or through restoration measures that compensate for these losses. In the Phase I rule for new facilities and in the Phase II rule for certain existing facilities, EPA 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 49071-4; 66 FR 65262-5; 67 FR 17136-40; and 69 FR 41587-88).

For the same reasons set forth in the preamble to the rules for Phase I and Phase II facilities (66 FR 65256, 65291-65297 and 69 FR 41586-90), EPA has determined that there are multiple types of undesirable and unacceptable environmental impacts that may be associated with Phase III facilities, depending on conditions at the individual site. These types of impacts include entrainment and impingement which can contribute to reductions of threatened and endangered species; and ecologically critical aquatic organisms, including important elements of the food chain; diminishment of a population's compensatory reserve; losses to populations, including reductions of indigenous species populations, commercial and recreational fisheries; and stresses to overall communities and ecosystems as evidenced by reductions in diversity or other changes in system structure and function. Based on the analyses in and for the same reasons set forth in the preambles to the Phase I rule (66 FR 65256, 65291-65297) and Phase II rule (69 FR 41598-41601), EPA has selected reductions in impingement mortality and entrainment as a quick, certain, and consistent metric for comparing facility performance to applicable requirements for Phase III facilities. Further, EPA considered the non-water quality environmental impacts for this rule (

e.g.

, impacts on energy use and associated increases in emissions) and found them to be acceptable at a national level. This section describes the environmental impacts associated with cooling water withdrawals and why they are of concern to the Agency.

Impingement takes place when organisms are trapped against cooling water intake screens by the force of the water being drawn through the cooling water intake structure. The velocity of the water withdrawal by the cooling water intake structure may prevent proper gill movement, remove fish scales, and cause other physical harm or death of affected organisms through exhaustion, starvation, asphyxiation, and descaling. Death from impingement (“impingement mortality”) can occur immediately or subsequently as an individual succumbs to physical damage upon its return to the waterbody.

Entrainment occurs when organisms are drawn through the cooling water intake structure into the cooling system.

Organisms that become entrained are typically relatively small, aquatic organisms, including early life stages of fish and shellfish. Many of these small fragile organisms serve as prey for larger organisms higher on the food chain which are commercially and recreationally desirable species. As entrained organisms pass through a facility's cooling system they may be subject to mechanical, thermal, and at times, chemical 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 toxic effects from antifouling agents such as chlorine. Similar to impingement mortality, death from entrainment can occur immediately or subsequently as the individual succumbs to the damage from the stresses encountered as it passed through the cooling water system once it is discharged back into the waterbody.

EPA estimates that existing Phase III facilities withdraw, on average, approximately 23,000 million gallons a day from waters of the United States.

7 8

The withdrawal of such large quantities of water has the potential to affect large quantities of aquatic organisms including phytoplankton (tiny, freefloating photosynthetic organisms suspended in the water column), zooplankton (small aquatic animals, including fish eggs and larvae, that may consume phytoplankton and other zooplankton), fish, and shellfish. 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. Other organisms, including reptiles, birds, and mammals are also sometimes drawn into cooling water intake structures.

7

EPA 1999. Detailed Industry Questionnaires: Phase II Cooling Water Intake Structures & Watershed Case Study Short Questionnaire. U.S. Environmental Protection Agency, Office of Wastewater Management, Washington, DC. OMB Control No. 2040-0213.

8

EPA 2003. Industry Technical Questionnaire: Phase III Cooling Water Intake Structures. Offshore and Coastal Oil and Gas Extraction Facilities. U.S. Environmental Protection Agency, Office of Science and Technology, Washington DC. OMB Control No. 2030-0213.

The environmental impacts attributable to impingement mortality and entrainment at individual facilities include losses of early life stages of fish and shellfish, reductions in forage species, and decreased recreational and commercial fishery landings. EPA estimates that cooling water intake structures potentially within the scope of today's rule and with a cooling water intake designed to take in greater than 2 MGD of water kill more than 120 million age 1 equivalent fish annually through impingement and entrainment. Expressing impingement mortality and entrainment losses as age 1 equivalents is an accepted method for converting losses of all life stages into individuals of an equivalent age and provides a standard metric for comparing losses among species, years, and facilities. Although the number of age 1 equivalent fish killed by impingement and entrainment is large, precise quantification of the nature and extent of impacts to populations and ecosystems is difficult due in part to the complexity of population dynamics and the physical, chemical, and biological processes of ecosystems. While it is generally accepted as a simple and transparent method for modeling losses, the proportional methodology that EPA uses to estimate impingement mortality and entrainment nationwide involves uncertainties that may result in under or over estimating actual impingement mortality and entrainment rates.

9

9

For more information, please

see

Chapter A2 of Part A of the Regional Analysis Document.

Decreased numbers of aquatic organisms can disrupt aquatic food webs and alter species composition and overall levels of biodiversity. For example, a model that examined the effect of large entrainment losses of forage fish, such as bay anchovy, predicted subsequent reductions in predator populations (including commercially and recreationally important species such as striped bass, weakfish, and blue fish) as high as 25 percent.

10

This is because forage species, which comprise a majority of entrainment losses at many facilities, are often a primary food source for predator species.

10

Summers, J.K. 1989. Simulating the indirect effects of power plant entrainment losses on an estuarine ecosystem. Ecological Modeling, 49: 31-47.

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 species of concern (those species that might be in need of conservation actions, but are not currently listed as threatened or endangered under State or Federal law).

11

In the San Francisco Bay-Delta Estuary, California, in the vicinity of the Pittsburg and Contra Costa Power Plants several fish species (

e.g.

, Delta smelt, Sacramento splittail, chinook salmon, and steelhead) are now considered threatened or endangered by State and/or Federal authorities. EPA evaluated facility data on impingement mortality and entrainment rates for these species and estimated that potential losses of special status fish species at the two facilities may average 8,386 age 1 equivalents per year resulting from impingement and 169 age 1 equivalents per year due to entrainment.

12

In another 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.

13

The facility 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. An incidental take limit established by NOAA Fisheries in a 2001 biological opinion for this facility has been set at no more than 1,000 sea turtles captured in the intake, with less than one percent killed or injured as a result of plant operations.

14

Although the extent to which threatened, endangered, and other special status species are taken by cooling water intake structures more generally is yet to be determined, EPA is concerned about potential impacts to such species.

11

For more information, please

see

Chapter A9 of Part A of the Regional Analysis Document.

12

Impingement and entrainment data were obtained from the 2000 Draft Habitat Conservation Plan for the Pittsburg and Contra Costa facilities. Please

see

EPA's Regional Studies for the Final Section 316(b) Phase II Existing Facilities Rule for detailed information on EPA's evaluation of impingement and entrainment at these facilities.

13

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.

14

Florida Power and Light Company. 2002. Florida Power & Light Company St. Lucie Plant Annual Environmental Operating Report 2002.

EPA is addressing the universe of existing facilities through two separate rulemakings. The Phase II final rule addressed power generation facilities with cooling water intake structures designed to take in water flows greater than or equal to 50 million gallons a day (MGD). For today's proposed rulemaking, EPA evaluated impacts from the remaining power generation facilities (those with cooling water intake structures designed to withdraw greater than 2 MGD and less than 50 MGD) and from manufacturing facilities withdrawing greater than 2 MGD. EPA divided the universe of existing facilities in this way in part because EPA initially had limited data on Phase III facilities with design capacities less than 50 MGD. Dividing the universe of existing facilities provided EPA with an

opportunity to gather more information on Phase III facilities.

Though the magnitude of impacts EPA has quantified from the universe of Phase III facilities is substantially smaller than the magnitude of impacts EPA has quantified from the universe of Phase II facilities, the information EPA has gathered on individual Phase III facilities indicates that the types of impacts that large individual facilities have on aquatic organisms can be similar to individual Phase II facilities' impacts.

15

Like Phase II facilities, Phase III facilities withdraw water from all waterbody types: lake, reservoir, Great Lake, freshwater river and stream, tidal river, estuary, and ocean environments. A smaller percentage of the overall cooling water flow withdrawn by Phase III facilities comes from tidal river, estuary and ocean environments, however, which are some of the most sensitive waterbodies. Phase III facilities also reside in many of the same geographic areas of the country and on many of the same waterbodies as Phase II facilities.

15

EPA 1999. Detailed Industry Questionnaires: Phase II Cooling Water Intake Structures & Watershed Case Study Short Questionnaire. U.S. Environmental Protection Agency, Office of Wastewater Management, Washington, DC. OMB Control No. 2040-0213.

Information available to the Agency also indicates that the range of configurations of Phase III cooling water intake structures is similar to that of Phase II intakes (

see

section VI), and that their size ranges broadly overlap (in terms of both design capacity and actual intake flow). The majority of facilities evaluated as part of the Phase III rulemaking, have cooling water intake structures designed to take in less than 50 MGD. However, the majority of total cooling water intake volume at Phase III facilities is associated with facilities designed to withdraw 50 MGD or more. The ten largest Phase III facilities have intakes designed to take in more than 500 MGD. Two of these facilities have cooling water intakes designed to take in more than 1,000 MGD. In Phase II, there were 257 facilities with cooling water intakes designed to take in more than 500 MGD and 112 cooling water intakes designed to take in more than 1,000 MGD.

The universe of Phase III facilities also differs from that of Phase II facilities in that it includes oil and gas extraction facilities operating in offshore marine environments. EPA knows of no studies that examine actual impingement mortality and entrainment by offshore oil and gas extraction facilities. However, offshore marine environments provide habitat for a number of species of fish, shellfish, and other aquatic organisms. Many species have life stages that are small and planktonic or of minimal swimming ability and are therefore vulnerable to entrainment by cooling water intake structures. Larger life stages are potentially vulnerable to impingement. Both types of organisms are found in the offshore marine environment and thus may be susceptible to impingement mortality and entrainment by offshore oil and gas extraction facilities. The densities of organisms in the vicinity of these facilities relative to densities in estuaries and other nearshore areas is not well characterized.

Offshore oil and gas extraction facilities have also been shown to attract and concentrate aquatic organisms in the immediate vicinity of the underwater portions of their structure. A variety of species of pelagic fish have been found to gather within relatively short time frames around the underwater portion of offshore oil and gas extraction facilities. If a facility remains in one place for a sufficient length of time, other species of aquatic organisms take up residence directly upon the underwater structure and form reef-like communities that support additional species of fish and shellfish. The increased number of organisms near the underwater portion of facilities where cooling water intake structures are located increases the potential for impingement mortality and entrainment of those organisms. The extent to which the increased numbers of aquatic organisms represents an overall increase in organism populations, rather than a simple concentration of organisms from surrounding areas, is not known. (For additional information,

see

DCN 7-0013.)

The Minerals Management Service (MMS) did attempt to estimate potential population level impacts from impingement mortality and entrainment associated with the future operation of the Liberty Island project located in the Beaufort Sea in Alaska. The final Environmental Impact Statement for the project states that the proposed seawater intake structure will likely harm or kill some young-of-the-year arctic cisco during the summer migration period and some eggs and fry of other species living in the immediate vicinity of the intake. MMS estimated that less than 1% of all arctic cisco in the Liberty Island area were likely to be harmed or killed by the intake structure and that there would not be a measurable effect on the young-of-the-year cisco in the migration corridor. However, MMS also did not expect measurable effects on populations of other fish species, including salmon, because of the widespread and low density distribution of those species' eggs and fry. Essential fish habitat for salmon will be adversely affected according to MMS because it is expected that prey species of zooplankton and fish in their early life stages (juveniles, eggs, and larvae) could be killed in the intake (

see

Section A of the Regional Study report).

EPA's analyses indicate that, on a national basis, Phase II existing facilities have a total actual cooling water intake flow (214,000 million gallons a day) greater than that of Phase III existing facilities (23,000 million gallons a day). As discussed in the preamble to the Phase II final rule (69 FR 41612), information in the record contains evidence to support the proposition that, in a given aquatic environment, entrainment is related to flow (see DCN 2-013L-R15 and 2-013) while impingement is related to a combination of flow, intake velocity, and fish swim speed (

see

DCN 2-029). Larger withdrawals of water may result in commensurately greater levels of entrainment because the eggs and larvae of some aquatic species are free-floating and may be drawn with the flow of cooling water into an intake structure. Impingement rates are also influenced by swim speeds of affected species and intake velocity. As described in section IX, the Agency estimates that 120 million age 1 equivalent fish are impinged and entrained annually by the universe of Phase III facilities. This number is lower than the 3.4 billion age 1 equivalent fish the Agency estimated to be impinged and entrained annually by Phase II facilities (69 FR 41656). The lower total flow partially explains why the impacts EPA quantified for Phase III facilities are lower than those EPA quantified for Phase II facilities. In addition, based on the studies EPA was able to collect from Phase II and Phase III facilities, even on a flow-weighted basis the number of organisms impinged and entrained by Phase III facilities is approximately one third of the number of organisms impinged and entrained by Phase II facilities.

The following discussion refers to studies from Phase II facilities which have been extensively studied in order to illustrate environmental impacts associated with cooling water intake structures. Because of the basic similarities in nature among Phase II and Phase III facilities, the Agency believes these case studies are useful for understanding the types of environmental impacts that may result from cooling water intake structures at Phase III facilities. EPA notes that Phase II facilities as a group withdraw more

cooling water than the Phase III facilities as a group and requests comment on the relevance of these Phase II facility studies for the Phase III rulemaking. EPA also requests any case studies or other available data on environmental impacts from Phase III facilities.

Examples of Environmental Impacts Caused by Phase II Cooling Water Intake Structures

1. Hudson River

The power generation facilities on the Hudson River in New York are some of the most extensively studied in the nation. The fish populations in the Hudson River have also been studied extensively to measure the impacts of these power plants. 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.

16

The combined design intake flow capacity of these five facilities is greater than 6,500 million gallons per day. The New York State Department of Environmental Conservation (NYSDEC) concluded 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.”

17

16

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.

17

New York State Department of Environmental Conservation (NYSDEC). 2000. Internal memorandum provided to the U.S. EPA on NYDECs position on SPDES permit renewals for Roseton, Bowline Point 1 & 2, and Indian Point 2 & 3 generating stations.

The Final Environmental Impact Statement (FEIS) prepared for these three of these five facilities concludes that impacts are associated with the power plants and notes that these impacts are more like habitat degradation than the “selective cropping” of fish that occurs during regulated fishing because the entire community is impacted rather than specific species higher on the food chain.

18

The FEIS estimates, from samples collected between 1981 and 1987, that the average annual entrainment losses from these three facilities includes 16.9 million American shad, 303.4 million striped bass, 409.6 million bay anchovy, 468 million white perch, and 826.2 million river herring.

19

In addition, related studies have found a small long-term decline in both species richness and diversity within the resident fish community.

20

18

New York State Department of Environmental Conservation (NYSDEC). 2003. Final Environmental Impact Statement: Concerning the Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowling 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties.

19

Ibid.

20

Henderson, P.A. and R.M. Seaby. 2000. Technical comments on the Draft Environmental Impact Statement for the State Pollution Discharge Elimination System Permit Renewal for Bowline Point 1 & 2, Indian Point 2 & 3, and Roseton 1 & 2 Steam Generating Stations. Pisces Conservation Ltd.

The Hudson River, like many waterbodies in the nation, has undergone many changes in the past few decades. These changes, which have affected fish populations either positively or negatively, include improvements to water quality as a result of upgrades to sewage treatment plants, invasions by exotic species such as zebra mussels, chemical contamination by toxins such as PCBs and heavy metals, global climate shifts such as increases in annual mean temperatures and higher frequencies of extreme weather events (e.g., the El Niño-Southern Oscillation), and strict management of individual species stocks such as striped bass.

21

In addition, there are dramatic natural changes in fish populations on an annual basis and in the long term due to natural phenomena because the Hudson River, like many waterbodies, is a dynamic system with many fundamental, fluctuating environmental parameters-such as flow, temperature, salinity, dissolved oxygen, nutrients, and disease-that cause natural variation in fish populations each year.

22

The existence of these interacting variables makes it difficult to determine the impact of impingement and entrainment losses on a population's relative health. Nonetheless, as described later in this section, EPA is concerned about the potential for cumulative impacts resulting from multiple facility intakes that collectively impinge and/or entrain aquatic organisms within a specific waterbody.

21

Ibid.

22

New York State Department of Environmental Conservation (NYSDEC). 2003. Final Environmental Impact Statement: Concerning the Applications to Renew NYSPDES Permits for the Roseton 1 & 2, Bowling 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties.

2. Mount Hope Bay

Environmental impacts were also studied in another recent permit reissuance for the Brayton Point Station in Somerset, Massachusetts, where EPA is the permitting authority. EPA determined that, among other things, the facility's cooling water system had contributed to the collapse of the fishery and inhibited its recovery despite stricter commercial and recreational fishing limits and improved water quality due to sewage treatment upgrades. The facility currently withdraws nearly one billion gallons of water each day (1,000 MGD) and the average annual losses of aquatic organisms due to impingement and entrainment are estimated in the billions, including, among other species, 251 million winter flounder, 375 million windowpane flounder, 3.5 billion tautog and 11.8 billion bay anchovy.

23

A dramatic change in the fish populations in Mount Hope Bay is apparent after 1984 with finfish abundance decline by more than 87 percent, which coincides with a 45 percent increase in cooling water withdrawal from the bay due to the modification of Unit 4 from a closed-cycle recirculating system to a once-through cooling water system and a similar increase in the facility's thermal discharge.

24 25

The relative contributions of cooling water withdrawal and increased thermal discharge to the observed population decline is not known, and some of decline may be due to factors other than cooling water. However, the downward trend of several species of finfish abundance in Mount Hope Bay is significantly greater than declines for the same species in adjacent Narragansett Bay that is not influenced by the operation of Brayton Point Station.

26

Despite fishing restrictions, fish stocks have not recovered.

23

Brayton Point Station, Somerset, MA. Final National Pollutant Discharge Elimination System (NPDES) Permit: Fact Sheet. October 2003.

24

Ibid.

25

Gibson, M. 1995 (revised 1996). Comparison of trends in the finfish assemblages of Mt. Hope Bay and Narragansett Bay in relation to operations fo the New England Power Brayton Point station. Rhode Island Division of Fish and Wildlife, Marine Fisheries Office.

26

EPA-New England. 2002. Clean Water Act NPDES Permitting Determinations for Thermal Discharge and Cooling Water Intake from Brayton Point Station in Somerset, MA (NPDES Permit No. MA 0003654), July 22, 2002.

3. Southern California Bight

At the San Onofre Nuclear Generating Station (SONGS) (3,300 MGD design intake capacity), in a normal (non-El Niño) year, an estimated 57 tons of fish were killed per year when all units were in operation.

27

The amount lost per year included approximately 350,000 juveniles of white croaker, a popular

sport fish; this number represents 33,000 adult equivalents or 3.5 tons of adult fish. In shallow water, densities of queenfish and white croaker decreased 60 percent within one kilometer of SONGS and 35 percent within three kilometers from SONGS as compared to densities prior to facility operations. Densities of local midwater fish decreased 50 to 70 percent within three kilometers of the facility. In contrast, relative abundances of some bottom-dwelling species in the same areas were higher because of the enriched nature of the SONGS discharge, which in turn supported elevated numbers of prey items for bottom-dwelling fish.

27

Murdoch, W.W., R.C. Fay, and B.J. Mechalas. 1989. Final Report of the Marine Review Committee to the California Coastal Commission. August 1989, MRC Document No. 89-02.

4. Missouri River

Facilities sited on waterbodies previously impaired by anthropogenic activities such as channelization can demonstrate the potential for reduced entrainment and impingement losses associated with cooling water intake structures. The Neal Generating Complex facility, located near Sioux City, Iowa, on the Missouri River is coal-fired and utilizes once-through cooling systems. According to a ten year study conducted from 1972-82, the Missouri River aquatic environment near the Neal complex was previously heavily impacted by channelization and very high flow rates meant to enhance barge traffic and navigation.

28

These anthropogenic changes to the natural river system resulted in significant losses of fish habitat. At this facility, there was found to be little impingement mortality and entrainment by cooling water intake structures.

28

Tondreau, R., J. Hey and E. Shane, Morningside College. 1982. Missouri River Aquatic Ecology Studies: Ten Year Summary (1972—1982). Prepared for Iowa Public Service Company, Sioux City, Iowa.

Studies like those described in this section provide only a partial picture of the range of environmental impacts associated with cooling water intake structures. Although numerous studies were conducted to determine the environmental impacts caused by impingement mortality and entrainment at existing facilities, many of them are based on limited data that were collected more than 25 years ago. EPA's review of available facility impingement and entrainment studies identified a substantial number of serious study design limitations, including data collections for only one to two years or limited to one season or for a subset of the affected species; limited taxonomic detail (

i.e.,

egg and larval losses not identified to the species level); a general lack of statistical information such as inclusion of variance measures for impingement and entrainment estimates; and the lack of standard methods and metrics for quantifying impingement mortality and entrainment, which limits the potential for comparing impacts among species, years, sites, and technologies and for evaluating cumulative impacts across multiple facilities. Further, in many cases it is likely that facility operating conditions and/or the state of the waterbody itself has changed since these studies were conducted. Finally, the methods for monitoring impingement and entrainment used in the 1970s and 1980s, when most section 316(b) evaluations were performed, were often inconsistent or incomplete, making quantification of impacts difficult. Recent advances in environmental assessment techniques provide new and, in some cases, better tools for monitoring impingement and entrainment and quantifying the current magnitude of the impacts.

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It is difficult to predict the effects of these study limitations on the impacts estimates, specifically whether they have led to an overestimate or underestimate of impacts. The studies do show, however, that the nature and magnitude of impacts are highly case specific.

29

Schmitt, R.J. and C.W. Osenberg. 1996. Detecting Ecological Impacts. Academic Press, San Diego, CA.

30

EPRI 1999. Catalog of Assessment Methods for Evaluating the Effects of Power Plant Operations on Aquatic Communities. TR-112013, EPRI, Palo Alto, CA.

EPA is also concerned about the potential for cumulative impacts related to cooling water withdrawal. Cumulative impacts may result from: (1) Multiple facility intakes impinging and/or entraining aquatic organisms within a specific waterbody, watershed, or along the migratory pathway of specific species; (2) the existence of multiple stressors within a waterbody/watershed, including cooling water intake structures withdrawals; and (3) repeated, long-term occurrences of impingement and/or entrainment losses that may result in the diminishment of the compensatory reserve of a particular fishery stock.

Historically, environmental impacts related to cooling water intake structures have been evaluated on a facility-by-facility basis. These historical evaluations do not consider the potential for a fish or shellfish species to be concomitantly impacted by cooling water intake structures belonging to other facilities that are located within the same waterbody or watershed in which the species resides or along the coastal migratory route of a particular species. Based on EPA's estimation of national impacts from Phase II and Phase III facilities, Phase II facilities would contribute a greater level of stress to a national measurement of cumulative stress than would the universe of Phase III facilities. However, the potential cumulative effects on a species or ecosystem of multiple intakes located within a specific waterbody or along a coastal segment are difficult to quantify and are not typically assessed. Thus, EPA is concerned that this type of cumulative impact is largely unknown and has not adequately been accounted for in evaluating impacts.

A total of 408,000 million gallons of water per day were withdrawn from waters of the United States in 2000 for cooling, irrigation, manufacturing processes, drinking, livestock watering and other purposes,

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of which cooling water intake from Phase III facilities constitutes 23,000 million gallons of water per day, or appro

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