UNITED STATES ENVIRONMEN TAL PROTECTION AGENCY

National Pollutant Discharge Elimination System – Cooling Water Intake Structures at Existing Facilities and Phase I Facilities

76 Fed. Reg. 22,174 (April 20, 2011) Docket ID No. EPA–HQ–OW–2008–0667

COMMENTS OF RIVERKEEPER, INC ., NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB, WATERKEEPER ALLIANCE, EARTHJUSTICE,

ENVIRONMENTAL LAW A ND POLICY CENTER, CLEA N AIR TASK FORCE,

NETWORK FOR NEW ENERGY CHOICES, CALIFORNIA COASTKEEPER ALLIANCE, SOUNDKEEPER, INC., D ELAWARE RIVERKEEPER NETWORK, SAVE THE BAY – RHODE ISLAND, FRIEND S OF CASCO BAY, NY/NJ BAYKEEPER, HACKENSACK RIVERKEEPER, SANT A MONICA BAYKEEPER, SAN DIEGO BAYKEEPER, SCENIC HUDSON, AMERICAN LITTORAL SOCIETY,

AND CONSERVATION LAW FOUNDATION

Submitted via Federal Express & E-mail to : Submitted on behalf of commenters listed above by : Water Docket, EPA Docket Center U.S. Environmental Protection Agency S UPER L AW G ROUP

, LLC EPA West Building, Room 3334 131 Varick Street, Suite 1001 1301 Constitution Avenue, N.W. New York, New York 10013 Washington, D.C. 20004 (212) 242-2355 OW-Docket@epa.gov reed@superlawgroup.com

Dated: August 18, 2011i SUMMARY OF CONTENTS 1

EXECUTIVE SUMMARY ............................................................................................................. ..... ii

DETAILED TABLE OF CONTENTS ................................................................................................ ix

I. BACKGROUND ................................................................................................................. ......1

A. Factual Background .......................................................................................................1

B. Statutory Background ..................................................................................................22

C. Regulatory Background ...............................................................................................33

II. SUMMARY OF THE PROPOSED RULE ............................................................................42

III. THE PROPOSED RULE FALLS WELL SHORT OF THE C LEAN WATER ACT’S STATUTORY MANDATE, IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW, IS

SIGNIFICANTLY WEAKER TH AN EPA’S PRIOR 316(b) RULES, AND WILL NOT PROTECT AQUATIC RESOURCES UNL ESS IT IS SIGNIFICANTLY

STRENGTHENED .................................................................................................................. 64

A. EPA’s “Approach to BTA” ..........................................................................................64

B. Entrainment Standards .................................................................................................68

C. Impingement Standards ...............................................................................................96

D. Standards for New Units ............................................................................................104

E. Other Critical Provisions............................................................................................108

F. Cost-Benefit Analysis ................................................................................................122

G. Other Applicable Federal Environmental Laws ........................................................135

IV. ADDITIONAL REVISIONS TO THE PHAS E I RULE ARE WARRANTED IN LIGHT

OF THE RIVERKEEPER I DECISION .................................................................................137

V. RESPONSES TO EPA’S SPECI FIC REQUESTS FOR COMMENT .................................139

LIST OF APPENDICES ............................................................................................................ ........163

LIST OF EXHIBITS .............................................................................................................. ............164

1 To aid the reader, we have included here a one-page abridged summary of the Table of Contents, containing all of the major headings and condensed versions of some of the subheadings.ii EXECUTIVE SUMMARY

When EPA promulgates the final version of this rule in 2012, four decades will have passed since Congress first directed the agency to stop power plant fish ki lls, yet the staggering aquatic mortality continues unabated as if it were still 1972. Today, Americans use electricity to power their cell phones a nd tablet PCs instead of rabbit-eared televisions, but cooling water regulation remains frozen in time as the plants supplying that power cont inue to kill enormous numbers of fish, overheat our waterways, and seve rely damage aquatic ecosystems using exactly the same once-through cooling systems as they did two generations ago. Unfortunately, the proposed rule 2 does little to solve this problem, de spite the ready availability of modern technology that can nearly eliminate it.

In January 1993, when George H. W. Bush was still president, Riverkeeper and several of the other commenters sued EPA to compel issuan ce of the intake structure regulations mandated by the 1972 Clean Water Act. 3 Late last year, Administrator Lisa Jackson wrote to Representative Fred Upton of Michigan, who ha d requested that EPA delay issuance of the Proposed Rule beyond the March 2011 deadline that was agreed upon after the courts remanded EPA’s prior rule for existing pow er plant intake structures. The Administrator refused to postpone the new rule, explai ning to the Congressman:

By the time the agency take s final action in July 2012, industry will have been waiting nearly twenty years [since Riverkeeper’s 1993 lawsuit] for the regulatory certainty that facilitates sound investment decisions . The public will have been waiting just as long for reassurance that the aquatic environment is being protected . I do not want to delay any longer. 4

Astonishingly, having recognized the n eed for both regulatory certainty and environmental protection – and the need to end decades of inaction – EPA has now issued a proposal that could hardly be le ss certain, less protective, or less expeditious. Contrary to the Clean Water Act’s mandate, the Proposed Rule entrusts states with the task of stopping the annual slaughter of a trillion aquatic organisms by 1,200 power pl ants and manufacturers – one plant at a time. Worse yet, the Proposed Rule then burdens those state agencies with a complex yet indeterminate, subjective, standardless and undeniably lengthy case-by-case process that

EPA knows full well cannot be eff ectively accomplished. The only “regulatory certainty” EPA has bestowed upon industry is the certainty of knowi ng that they can continue to run their plants with antiquated technology and thereby kill fish with impunity. Meanwhile, the public has been deprived of any semblance of reassurance that the aquatic environment is being protected.

2 See 76 Fed. Reg. 22,174 (April 20, 2011) (National Po llutant Discharge Elimination System – Cooling Water Intake Structures at Existing Facilities and Phase I Facilities) (the “Proposed Rule”).

3 See Cronin v. Reilly , 93 Civ. 0314 (SDNY).

4 Letter from Administrator Lisa P. Jackson to Cong ressman Fred Upton, December 16, 2010, at 1 (emphasis added), submitted as Exhibit 1 to these comments. Hereinaf ter, all citiations to comment exhibits include the exhibit number in this format: (Exh. #). In additon, Appendices A through I are also submitted herewith.iii These comments make the following key points: 5

The Proposed Rule is Illegal and Will Not Protect the Environment

Approach to “Best Technology Available” (BTA)

• EPA proposes to unlawfully reject uniform, na tional, categorical, technology-based, and technology-forcing standards in favor of case-by-case assess ments of consequential water quality effects. EPA begins with an unlawfu l premise that a technology must be capable of being implemented universally as a prerequisite for setting na tional categorical standards and proceeds to ignore nearly all of the fundament al precepts that Congress established as the

foundation of the Clean Water Act’s t echnology-based framework.

• EPA’s reliance on open-ended cost-ben efit considerations is unlawful . While not prohibited, cost-benefit analysis can be used only as a secondary tool to screen out absurd results and not as a primary decision-maki ng criterion based on the flawed cost-benefit balancing exercise EPA has attempted here. Congress knew that attempts to quantify and

monetize environmental benefits would hinder regulation, rather than improve it. EPA’s cost-benefit folly in th is rulemaking illustra tes exactly why Congress meant to constrain EPA’s discretion in that regard.

Entrainment

• The Proposed Rule does little to change th e unacceptable status quo and protect the aquatic environment from entrainment. EPA should establish an entrainment standard based on closed-cycle cooling as en visioned in the agency’s Option 3. The agency had before it a regulatory option – a national cate gorical standard based on the performance of closed-cycle cooling systems (Option 3) – that would protect the envi ronment at a reasonable cost to industry, create jobs, and cause no significant advers e effects on the environment, electric reliability, or consumer prices. EPA unlawfully rejected th at option in favor of preserving the status quo. Closed-cycle cooling is a feasible and readily affordable technology. A national, categor ical entrainment standard based on that technology could include a narrow safety-valve va riance to properly take account of site-specific factors for those plants fundamentally different than the ma jority. Parameters for such a variance are proposed below.

• Contrary to industry’s hyperbolic claims, Op tion 3 would not cause electric reliability problems and would barely increase electricity prices. EPA estimates that if the total cost of Option 3 were to be passed on to ratepaye rs, those costs would total only $1.47 per month per household. Conversely, if 100 percent of the costs fell upon power companies, the majority of parent entities would incur annualize d costs of less than one percent of revenues. Further, assuming none of those costs could be passed on, plant retirements caused by Option

5 These comments are submitted without waiver of, or prejudice to, any previously stated positions (or, potentially, any future positions) taken in litigation or adjudication with respect to contested aspects of power plant permitting and cooling water intake regulation (including, without limit ation, the illegality of formal cost-benefit analyses in this context). The commenters reserve all rights in this regard.iv 3 would represent less than 1.5 pe rcent of total capacity, whic h could be easily replaced by new, cleaner generation.

• EPA’s economic findings are unambiguous: the stronger the regulation, the greater the boost to the economy and job creation

. At either discount rate EP A used in its analysis, Option 3 creates jobs and stimulates the economy to a greater degree than any of the other options. At a 7 percent disc ount rate, it produces 10,102 new j obs under EPA’s analysis, but

the actual benefits to the ec onomy of Option 3 are likely much greater. Option 3 is therefore a job-creating rule that will improve the economy.

• EPA’s national cost-benefit analysis is deeply flawed and illegal. These comments and the attached reports of the Stockholm Environmen t Institute (“SEI”) and Powers Engineering identify significant flaws in EPA’s national cost-benefit analysis. Making only partial and conservative corrections to EPA’s analysis, the monetizable benefits of a national standard based on the performance of closed-cycle coo ling systems (Option 3) exceed its costs.

• In place of Option 3 (or Option 2, a watered-down version of Option 3), EPA has illegally substituted Option 1, a case-by-case decision making process that is legally infirm. A nationally uniform entrainment standard based on the performance of closed-cycle cooling systems, like Option 3, is technologically and economically feasible. Therefore, EPA’s caseby-case approach to standard se tting (Option 1) is a wholesal e abdication of its statutory

duties.

• The Proposed Rule will turn permitting proceedings into an endless quagmire because states are incapable of developing permit requirements in the absence of national categorical standards. As states repeatedly have told EPA and EPA has itself recognized, state permitting agencies lack the resources to undertake or review the multiple engineering, biological, economic and other studies that th e Proposed Rule requires as a condition of permitting. States are particularly incapable of conducting cost-benefit analysis in the context of NPDES permit proceedings, but the Proposed Rule contemplates 1,200 such analyses in the coming years (one for every plan t subject to the rule), even though EPA itself,

with all of its resources and many years to do it, has still never come close to monetizing more than a few percent of the benefits in its national rulemakings under Section 316(b).

• OMB took EPA’s illegal and weak proposal and made it worse. The agency sent OMB a proposal designed around a case-by-case format in which state permitti ng authorities would begin with a rebuttable presumption that clos ed-cycle cooling was the best technology available. EPA also sought to avoid making cost-benefit analysis a primary consideration, using it only to eliminate extreme results under a “wholly disproportionate” test. That regulatory approach was insuffici ent to begin with, but OMB fu rther weakened it, leaving a completely rudderless decision-making process that allows state agencies to consider an open-ended set of factors the director deem s to be “relevant” and then choose the technologies the agency deems “warranted.” The Proposed Rule now invites those permitting directors to determine that “no additional control requirements are necessary beyond what a facility is alre ady doing.” OMB’s changes thus render the enti re rule an elaborate ruse for doing nothing at all.v Impingement

• EPA should establish a national categorical impingement standard bas ed on closed-cycle cooling. The Proposed Rule does not do this, but instead provides a choice among options that are clearly less protective.

• EPA should also establish an additional imp ingement standard based on the 0.5 ft/s velocity limit and allow a carefully crafted variance for facilities that legitimately cannot meet it. Because the velocity limit will not eliminate impingement, EPA should also retain the requirements to install pr otective devices on travelling scre ens, install barrier nets for shellfish in marine waters, and provide a mechan ism for “entrapped” fish (for example, those caught in a forebay) to escape.

• Although EPA found that reducing intake velo city to 0.5 feet per second would be more protective than other imping ement mortality standards it considered, EPA nevertheless gave existing facilities the choi ce between the velocity limit and meeting a twelve-percentannual impingement mortality standard (i.e., me aning that no more th an twelve percent of impinged fish may di e in a given year). The twelve-percent standard, however, is not only weaker than the velocity limit but would al so require extensive monitoring and latent mortality testing that will inevitably lead to vague, controversial and inconclusive results as to the percentage of impinged fish that have survived impingement.

• To measure performance against the twelve percent standard, plant operators would be required to hold impinged organisms for 24 to 48 hours, yet latent impingement mortality can occur 96 hours after the impingement event. Moreover, there are no agreed-upon protocols for handling and holding impinged fish, and it is difficult to determine whether fish have died from impingement or some other cause. Because certain species are more susceptible to impingement and less likely to survive, the twelve pe rcent standard would disproportionately affect those sp ecies, and would cause plant ope rators to seek to invoke a provision of the Proposed Rule that would allow permit writer s to exclude certain species from monitoring requirements and calculations.

Definition of “New Unit”

• EPA should revert to the new units definition an d standards that it proposed to OMB with minor revisions suggested below. The version of the proposed rule that EPA sent to OMB would have required all replacements, repowerings, and rebuilt power plants to meet standards based on closed-cycle cooling because those plants have the ability to include closed-cycle cooing systems as part of the initial design of the rebuilt, repowered or replacement plant. But OMB modified those provi sions such that only “new units at existing facilities,” a very narrowly de fined class of entities, now ha ve to meet the closed-cycle cooling standards. That OMB change would allow the operators of the worst fish-killing plants in the country to demolish their plants and rebuild entirely new plants from scratch without having to install modern equipment.vi Other Critical Provisions

• EPA should define and prot ect “species of concern.” Previously, EPA has explained that “species of concern” are species that may be “in need of conservation actions, but are not currently listed as threatened or e ndangered under State or Federal law.” 6 Sadly, a decadeslong backlog of endangered species listings mean s that hundreds of species whose claims to endangered or threatened status are supported by substantial scie ntific evidence fit into this category. EPA should define and extend additiona l protections to spec ies of concern, as it did in the original Ph ase II rulemaking.

• EPA should prevent states from excludin g any species from the rule’s scope. The provision contained in proposed 40 CFR § 125.98(c)(6), mentioned above in the context of impingement, should be revised to prevent st ate permit directors from excluding “other specific species,” which are neither invasi ve nor naturally moribund, from monitoring, sampling, and study requirements. Since BTA determinations and compliance with BTA standards will be in large pa rt determined through monitori ng, sampling and studies, this “species of [no] concern” provision would a llow states to simply ignore, rather than minimize, mortality to certain species.

• EPA should assume that entrainment mortality is 100 percent in all cases. Assessing entrainment mortality on a site-specific and species-specific basis is administratively unworkable. It will lead to significant dela ys in the permitting of cooling water intake structures, for little, if any, gain. EPA shoul d presuppose, in all cases, that entrainment mortality is 100 percent.

• EPA should specify minimum monitoring requirements. EPA lays out its minimum expectations with respect to monitoring practi ces in the preamble, but then, inexplicably,

leaves the final determination to state regulators. It is inefficient for each state to reinvent monitoring requirements dozens of times – once fo r each facility. EPA should specify in the rule uniform minimum monitoring requirements that meet the expectations it laid out in the preamble.

• EPA should prohibit the use of freshwater fo r once-through cooling in arid regions or those at risk of drought. BTA must be defined to require reclaimed water use as the potential benefits of using reclaimed water for power plant cooling are immense and would result in additional environmental protection and water savings and improved reliability at both once-through and closed-cycle facilities that utilize freshw ater intake. EPA’s proposed approach fails to fully recognize either the avai lability of reclaimed water or the public and environmental benefits of using reclaimed wate r for cooling and fails explicitly to require local consideration of this readily available option.

• EPA should not exempt cooling water withdraw als that are also used for desalination. The proposed exclusion of seawater used for both cooling and desalin ation from the definition of “cooling water” would allow the power plant to conte nd that the water is drinking water and

6 69 Fed. Reg. 41,576, 41,587 (col. 1) (July 9, 2004) (National Pollutant Discharge Elimination System – Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities).vii the desalination plant to contend that the wate r is cooling water, leaving the withdrawal completely unregulated, contrary to the intent of Section 316(b).

• EPA should require that if a calculation baselin e is used by permit writers, it must reflect the actual operation of the facility, not a fictional “full flow” baseline. EPA acknowledges that one of the most “challenging” aspects of the 2004 Phase II rule was the calculation baseline; EPA claims to have developed an appro ach that does not use a calculation baseline. In fact, EPA has just punted th e calculation baseline issue to the states. Consequently, EPA

should either make clear in the rule that no ca lculation baseline can be used in implementing the rule or, if a calculation ba seline may be used, then the rule should require that the operational component of the calcu lation baseline – which is th e most controversial baseline issue – reflect actual plant operation, not a fictional “full-flow” baseline.

• EPA should remove the special site-specific BTA determination for nuclear facilities. It is extremely unlikely that a BTA requirement c ould conflict with NRC requirements because the cooling water system used to condense steam used in generating elec tricity (which is the subject of this rulemaking) is completely se parate from and independent of the “service water” system which cools reactors, spent fuel pools and other critical plant systems in the event of an accident. Moreover, existing N RC regulations adequately address proposed changes to a nuclear facility, rendering an a dditional process unnecessary and potentially confusing as part of a BTA determination. At a minimum, EPA should revert to the version of the nuclear facility provision contained in the version of the proposed rule sent to OMB.

• EPA should require interim measures to pr otect aquatic ecosystems until long term compliance solutions are in place. We request that EPA include in the rule a requirement for interim measures that most plants can us e to reduce their intake of cooling water, particularly at peak spawning times. Such m easures could include in stallation of variable speed pumps or drives at peaking facilities or scheduling regular ma intenance outages during peak spawning periods whenever feasible. Unti l full compliance at a site is achieved, these interim measures should be implemented as NPDES permit conditions, without allowing them to supplant permanent measures.

• EPA should clarify that only offshore seafood processing fac ilities, not onshore facilities, are exempt from the Rule. EPA intended to exempt seagoing vessels from the rule because of concerns about space limitati ons and retrofits that could co mpromise the s eaworthiness of drilling rigs, liquefied natural gas terminals, and fishing boats. But EPA should include the word “offshore” before “seafood processing fac ilities” in its exemption at 40 C.F.R. § 125.91(d) to make it clear that only vessels, a nd not coastal fish processing plants, are
exempt.

• EPA must consult with the National Marine Fi sheries Service and th e Fish and Wildlife

Service. EPA must obtain the opinions of its sist er federal agencies on the Proposed Rule’s impact upon threatened and endangered species and the advisability of reasonable and prudent alternatives, such as a nationally uniform closed-cycle cooling standard. In declining to set such a standard, EPA is authorizing existi ng facilities to continue to take endangered species and to adversely modify habitat that is critical to multiple endangered species.viii Cost-Benefit Analysis

• If EPA persists in employing a cost-benefit an alysis for the national rulemaking (which is neither required, nor useful) that analysis must be significantly improved by valuing more of the benefits in the manner suggested by economists Frank Ackerman and Elizabeth

Stanton in their attached Stockholm En vironmental Institute (SEI) comments. Not only does EPA’s approach to cost-b enefit analysis exc eed the restrictions imposed by Congress (as noted above), EPA also vastly underestimated the benefits and overestimated the costs of the rulemaking options. EPA used old data wh ich do not reflect curren t conditions and fish kill levels and then monetized only a very small fraction of the benefits. EPA also used a misleading and distorted industry model, rather than its own model, and thereby overstated the costs by approximately a factor of two. A more accurate cost-benefit analysis, (although still limited by existing economic tools) shows th at the benefits of Option 3 clearly exceed

the costs.

• The substantial shortcomings in EPA’s cost-ben efit analysis demonstrate conclusively why state permitting agencies should be forbidden from considering co sts in relation to benefits in the site-specific context. No cost-benefit analysis is to be conducted under EPA’s Phase I rule for new facilities, the new oil rig regula tions in the Phase III rule, or the “new units” requirements of this rule. None should be conducted by states under th is rule either.

• However, to the extent that states are author ized to conduct site-specific cost-benefit analyses for existing facilities, EPA should se t very specific requir ements for states to follow , as suggested by Ackerman and Stanton in the attached SEI comments, so that such analyses do not undermine the purpose of the ru le and of Section 316(b) – to minimize the adverse environmental impacts of cooling water intake structures usi ng the best technology

available.

Revision to the Phase I Rule

• EPA should make clear in the regulatory text of the Phase I rule that a facility choosing Track II must aim for 100 percent of the en trainment and impingement reductions of Track I, and if it falls short within 10 percen t, that will be acceptable, but may not aim for 90 percent and achieve only an 89 percent reduction. EPA is proposing to delete the

references to “restoration measures” in the Phase I rule because the Second Circuit held in Riverkeeper I (and again in Riverkeeper II ) that the statute does not authorize use of such measures to comply with Section 316(b). At the same time, EPA should make an additional

revision to the Phase I rule in order to im plement the finding of the Second Circuit in Riverkeeper I that under Track II, it would be inappr opriate for EPA to use 90 percent as a benchmark and allow an additional margin of error in measuring compliance with that

benchmark.ix DETAILED TABLE OF CONTENTS

I. BACKGROUND ................................................................................................................. ........1

A. Factual Background: Once-Through C ooling Causes Adverse Environmental Impacts of Staggering Proportions...................................................................................1

1. Massive Water Withdrawals ................................................................................2

2. Impingement a nd Entrainment .............................................................................3

3. Taking of Endangered and Threatened Species ...................................................7

4. Fish Population Declines .....................................................................................8

5. Depressed Commercial and Recreational Fish ing Yields ....................................9

6. Aquatic Community and Ecosystem Impacts ......................................................9

7. Reduced Ecological Resilience ............................................................................10

8. Thermal Discharges .............................................................................................11

9. Chemical Discharges ...........................................................................................13

10. Cumulative Impacts .............................................................................................14

11. Habitat Loss .........................................................................................................15

12. Altered Flow Patterns in Source and Receiving Waters ......................................15

13. Water Availability and Related Energy Impacts .................................................16

a. Impacts on Upstream Beneficial Uses of Water ......................................16

b. Threats to Power Genera tion and Grid Reliability ..................................18

c. Water Supply Sustainability Risks in a Changing Climate .....................21

14. Industrial Use of Valuable, Scenic Waterfront Land ...........................................22

B. Statutory Background: Congress Enacted Section 316( b) as Part of the 1972Clean Water Act Amendments to Standardize Permitting and Minimize OnceThrough Cooling’s Massive Water Withdrawals and Fish Kills. ....................................22x 1. In 1972 Congress Was Well Aware of the Enormous Damage Caused by Once-Through Cooling. .......................................................................................23

2. The 1972 CWA Amendments Fundamen tally Restructured U.S. Water Pollution Regulation by Replacing Ineff ectual Site-Specific Assessments of Water Quality with Nationa l Technology-Based Standards. ...........................24

3. As Part of the CWA’s Technology-Based Regime, Section 316(b)Requires EPA to Adopt Uniform, National, Categorical, TechnologyBased and Technology-Forcing BTA Sta ndards for Cooling Water Intake

Structures. ............................................................................................................30

a. Section 316(b) Requires EPA to Establish National Standards. ..............30

b. The National Standards Secti on 316(b) Requires Are a Form of Limitation Required by Sections 301 and 306. ........................................30

c. The National Standards Section 316(b) Requires Must Be Uniform and Categorical. .......................................................................................32

C. Regulatory Background: For Forty Year s, Regulation on a Case-by-Case SiteSpecific Basis Has Caused Bureaucratic Paralysis, Litigation Quagmires, and the Perpetuation of the Unacceptable Status Quo, Contrary to Congress’s Intent. ...............33

II. SUMMARY OF THE PROPOSED RULE .................................................................................42

A. The Proposed Rule ......................................................................................................... ..42

1. Entrainment Provisions for Existi ng Facilities (Exi sting Units) ..........................42

2. Entrainment Standards for “New Units at Existing Facilities.” ...........................45

3. Impingement Standards for Existing F acilities (Existing Units) and “New Units at Existing Facilities.” ................................................................................45

4. Other Provisions...................................................................................................47

a. Exclusion of Species/”Species of Concern” ............................................47

b. Monitoring Provisions .............................................................................48

c. Nuclear Safety ..........................................................................................48

d. Exempted Offshore Facilities ..................................................................48

5. Revisions to Phase I Rule ....................................................................................48xi B. EPA’s Option Selection ...................................................................................................4 9

1. In Considering Technological Options, EPA Set a “Universal Availability” Requirement for BT A Candidate Technologies, then Rejected Closed-Cycle Systems and Velocity Limits Because EPA Found that They Are Not Univerally Capable of Being Implemented. ..........................49

2. The Four Regulatory Options EPA Considered...................................................51

C. The Regulatory Impact Analysis .....................................................................................52

D. The Rulemaking Process: Change s Made at the Dir ection of OMB. .............................53

1. Changes Relating to EPA’s Na tional Cost-Benefit Analysis ..............................54

2. Changes Relating to the Case-by-Case BTA Determination of Entrainment

Standards ..............................................................................................................55

a. EPA Sought to Require All Faci lities to Use the “Best Performing Technology” So Long As its Costs Were Not Wholly Disproportionate to its Benefits. ..............................................................55

b. OMB Directed EPA to Abandon its “Wholly Disproportionate” Test and Let States Reject Any Technology After an Open-Ended, Multi-Factor Evaluation if its Costs “Are Not Justified” by its

Benefits. ...................................................................................................56

c. EPA Determined that Closed-Cycle Cooling is the “Best Performing Technology,” but OMB Deleted this Conclusion. ................57

d. OMB Also Deleted EPA’s Statemen t that Most Facilities Should Install Closed-Cycle Systems. .................................................................57

e. Although OMB Put Cost-Benefit An alysis at the Heart of the Decision Making Process, it Deleted EPA’s Guidance on How to Perform Cost-Benefit Analysis. ...............................................................58

3. Changes Relating to Definition of New Units .....................................................58

a. OMB Determined that Replacements/Repowerings Are Not New Units and Deleted EPA’s Contrary Statements and Rationale. ...............58

4. Changes Relating to Regulatory Options. ............................................................60xii a. OMB Revised the Discussion of Options 2 and 3, and Added a New Option 4. ..........................................................................................60

5. Changes to Other Provisions of the Rule .............................................................61

a. OMB Asked for Comment on the Possibility of Weaker Compliance Timelines. ............................................................................61

b. OMB Removed Firm Monitoring Requirements and Replaced Them with Suggestions. ...........................................................................61

c. OMB Removed Extra Protection for Species of Concern. .....................62

d. OMB Altered the Nuclear Safety Exception. ..........................................62

e. OMB Created a New Exception for New Units at Existing Facilities with Costs “Wholly out of Proportion” to the Costs Considered by EPA. .................................................................................62

f. OMB Would Allow Facilities to Prove that, at Their Site, Entrainment Mortality Is Less Than 100 Percent. ...................................63

III. THE PROPOSED RULE FALLS WELL SHORT OF THE CLEAN WATER ACT’S STATUTORY MANDATE, IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW, IS

SIGNIFICANTLY WEAKER TH AN EPA’S PRIOR 316(b) RULES, AND WILL NOT PROTECT AQUATIC RESOURCES UNL ESS IT IS SIGNIFICANTLY

STRENGTHENED .................................................................................................................. ....64

A. EPA’s Interpretation of Section 316(b) and its “Approach to BTA” Contradicts the Plain Meaning of the Act and C ongress’s Clearly Expressed Intent. ........................64

1. When Making BTA Determinations Under Section 316(b) and Setting

Parameters for Permit Writers to Do So, EPA Does Not Have Authority to Eschew Congress’s Fundamental Inte nt for the CWA’s Technology-Based Regulatory Program. ............................................................................................64

2. EPA’s Interpretation of the Statut ory Term “Available” Is Unlawful. ................66

3. EPA’s Understanding of its Cost -Benefit Authority is Incorrect. .......................67

B. EPA Should and Must Establish a Na tional Categorical Entrainment Standard Based on Closed-Cycle Cooling. .....................................................................................68

1. Option 1’s Entrainment Provisions Re present a Complete Abdication of EPA’s Responsibility to Minimize Adverse Environmental Impact. ..................68xiii a. EPA’s Failure to Set Uniform National Standards for Entrainment Violates the Plain Language of Section 316(b) and Congress’s Clearly-Expressed Intent. .........................................................................69

b. EPA Is Unlawfully Requiring State Permit Writers to Set Entrainment Controls Based In Large Part on Water Quality

Considerations Rather than T echnological Considerations. ....................70

c. EPA’s Decision to Require State Permit Writers to Set Entrainment Controls on a Case-by-Case Basis Is Arbitrary and Capricious and Will Perpetuate Bureaucratic Paralysis. ..........................71

(1) States Cannot Comp lete Case-By-Case BTA

Determinations. ............................................................................71

(2) States Cannot Conduct, or Meaningfully Review, SiteSpecific Cost-Benefit Analyses. ..................................................77

d. The Open-Ended Case-By-Case Format EPA Proposed (Based on Substantial Last-Minute Change s by OMB) Is Very Poorly Designed. .................................................................................................82

2. EPA Should Select Option 3’s Entrainm ent Standard for the Final Rule............84

a. Establishing National Categor ical Standards Based on ClosedCycle Cooling for Virtually All Existing Facilities, as the Agency Did a Decade Ago for New Facili ties, Would Minimize Adverse

Environmental Impacts. ..........................................................................84

b. The Rulemaking Record Demonstrates that Closed-Cycle Cooling is Available to the Existing F acilities Because Retrofits are Feasible and Inexpensive. ........................................................................85

(1) There Is Adequate Space for Closed-Cycle Cooling at Virtually Any Plant Site. ..............................................................85

(2) Remaining Useful Life is Not Quantifiable, Certain, Binding or Relevant Unless a Plant Owner Has Committed

to a Closure Date. .........................................................................86

c. The Rulemaking Record Demonstrates that Requiring Antiquated Plants to Install the Same Cooling Technology as their Modern Counterparts Would Not Cause A ny Significant Adverse Impacts on Energy Supplies, the Economy or the Environment. ..........................87xiv (1) Requiring Closed-Cycle Cooling Would Not Cause Electricity Shortages. ...................................................................87

(2) Requiring Closed-Cycle Cooling Would Not Increase Electricity Prices. .........................................................................88

(3) Requiring Closed-Cycle Coo ling Would Create Jobs and Improve the Economy. .................................................................89

(4) Requiring Closed-Cycle Cooling Would Not Cause Air Pollution or Any Other Signifi cant Adverse Environmental Impacts. ........................................................................................89

(5) Requiring Closed-Cycle Cooling Would Cause Some Facilities to Repower thei r Plants, Yielding Additional

Environmental and Economic Benefits. ......................................91

3. Option 2’s Entrainment Standard Is Far Superior to Option 1 and Option 4 in All Respects. ....................................................................................................93

4. EPA Should Shorten the Entrainment Compliance Timelines. ...........................93

5. Any Variance EPA Includes as Part of a Categorical Entrainment Standard Must Clearly Delineate What Issues May Be Considered by the Director and How They Are to Be Considered. .................................................................94

C. Although the Establishment of National Ca tegorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and

Problematic in Nume rous Respects. ................................................................................96

1. EPA Should Establish a National Ca tegorical Impingement Standard Based on Closed-Cycle Cooling. .........................................................................96

2. EPA’s Rejection of the 0.5 Ft/S Velocity Limitation as the Primary National Standard Is Illegal. ................................................................................97

a. EPA Has Found in Each Previ ous Section 316(b) Rulemaking, and Again for this Rule, that a 0.5 Ft/S Velocity Limitation Would Protect Approximately 96 Percent of Fish from Impingement and that Many Existing Facilities Al ready Meet that Standard. .....................97

b. EPA Lacks a Legitimate Legal or Evidentiary Basis for Rejecting the 0.5 Ft/S Velocity Limit. .....................................................................99

3. The 12 Percent/31 Percent Impingeme nt Mortality Reduction Requirement Is Problematic In Numerous Respects. ................................................................99xv a. Impingement Mortality Monito ring Is Inherently Difficult, Controversial, and Uncertain. ..................................................................100

b. The 12 Percent/31 Percent Standard is Further Weakened by the Provision Allowing the Director to Exclude Certain Species from

the Standard. ............................................................................................101

4. EPA Should Select the 0.5 Ft/S Ve locity Limit as the Impingement

Standard for the Final Rule. .................................................................................102

D. All Repowered, Replaced, or Rebuilt Faci lities Must Be Subject to the Same Closed-Cycle-Cooling-Based Requirements as New Units at Exis ting Facilities. ..........104

1. Although the Closed-Cycle Cooling St andard for New Units at Existing Facilities Should Be Retained, the Definitions of New Unit and Existing Facility Are Problematic. .....................................................................................104

2. All Repowered, Replaced, or Rebuilt F acilities Must Be Subject to the Same Closed-Cycle-Cooling-Based Requirements as “New Units at Existing Facilities.” ..............................................................................................107

E. Other Critical Provisi ons Should Be Revised. .................................................................108

1. EPA Should Clarify the Meaning of th e Term “Species of Concern,” and Restore Additional Protections for These Species. ..............................................108

2. EPA Should Prevent Directors from Excluding Any Species from the Rule’s Scope. .......................................................................................................109

3. EPA and States Should Mainta in an Assumption of 100 Percent Entrainment Mortality in All Site-Specific Proceedings. ....................................109

4. EPA Should Specify Minimum Monitoring Requirements. ................................110

5. EPA Must Prohibit the Use of Fres hwater for Once-Through Cooling in Arid Regions or Those at Risk of Drought. .........................................................110

a. Use of Reclaimed Water is a Proven Technology for Power Plant Cooling. ....................................................................................................111

b. Reclaimed Water is Widely Av ailable for Cooling at Existing Once-Through Facilities. .........................................................................112

c. EPA’s Stated Concerns About Reclaimed Water Availability Are Unsupported and Unwarranted. ...............................................................113xvi d. The Use of Reclaimed Water for Closed-Cycle Cooling Addresses Any Consumption Issues. ........................................................................115

e. At a Minimum, EPA should Em ulate California’s Policy on the

Use of Reclaimed Water for Coolin g and Establish a Preference for

Reclaimed Water. .....................................................................................116

6. EPA Should Not Exempt Cooling Water Withdrawals from the Rule Merely Because the Water Is Also Used for Desalination. .................................117

7. EPA Should Require an Actual -Flow Calculation Baseline. ...............................118

8. EPA Should Remove the Special Provision for Nuclear Facilities .....................120

9. EPA Should Require Interim Measures to Reduce Cooling Water Flow Until Long Term Compliance Solutions Are in Place. ........................................121

10. EPA Should Clarify that Only Offs hore Seafood Processing Facilities, not Onshore Facilities, Are Exempt from the Rule. ...................................................122

F. EPA’s Cost-Benefit Analysis is Deeply Flawed and Illegal. ...........................................122

1. EPA’s Extensive Monetized Cost-B enefit Analysis Far Exceeds the Restrictions Imposed by Congress. ......................................................................122

2. EPA Vastly Underestimated the Benefits of the Rulemaking Options Such that Any Reliance on the Cost-Benefit Analysis Would Be Arbitrary and Capricious. ...........................................................................................................123

a. EPA Has Drastically Underestimat ed the Number of Fish Killed by Cooling Water Intake Structures. .............................................................124

b. EPA Cannot Accurately Moneti ze the Benefits of Saving NonMarket Fish, Other Aquatic Organisms, and Ecosystems. ......................125

3. EPA Overestimated the Costs of Closed-Cycle Cooling. ....................................126

a. EPA Has Significantly Over-Estim ated the Costs of Retrofitting Existing Power Plants to Closed-Cycle Cooling. ....................................127

b. EPA Overestimated the Downtime (and Attendant Costs) Required for Closed-Cycle Cooling Retr ofits at Nuclear Plants. ............................129

4. If EPA Relies on, or Authorizes Use of, a Cost-Benefit Analysis, that Analysis Must Be Significantly Improved. ..........................................................130xvii a. EPA’s Approach to Cost-Benefit Analysis Should Be Reformed. ..........131

b. EPA’s National Benefits Assessment Requires Certain Adjustments. ............................................................................................132

c. EPA’s National Costs Assessment Requires Certain Adjustments. ........132

d. Any Site-Specific Benefits Asse ssment Should Adhere to Precise Regulatory Requirements Established by EPA. .......................................133

G. EPA Cannot Issue a Final Rule Without First Consulting NMFS and FWS and Fully Complying with its Duties under Other Applicable Federal Environmental

Laws. ......................................................................................................................... .......135

IV. ADDITIONAL REVISIONS TO THE PHAS E I RULE ARE WARRANTED IN LIGHT

OF THE RIVERKEEPER I DECISION .......................................................................................137

V. RESPONSES TO EPA’S SPECI FIC REQUESTS FOR COMMENT .......................................139

A. Responses to Numbered Requests. ..................................................................................139

B. Responses to Additional Requests. ..................................................................................156

LIST OF APPENDICES ............................................................................................................ ..............163

LIST OF EXHIBITS .............................................................................................................. ..................1641 I.

BACKGROUND

A. Factual Background : Once-Through Cooling Causes Adverse Environmental Impacts of Staggering Proportions.

Power plants and other industrial facilities use cooling water intake structures to

withdraw massive volumes of water from natu ral waterbodies for cooling. The overwhelming majority of that water is drawn by plants using “once-through” cooling systems, which, as their name suggests, do not recirculate cooling water after its use. Instead, they pump cold water through a condenser just once, re turn the now-heated water to th e water body from which it was withdrawn, and continually draw more cold water for further cooling.

The profligate withdrawal of such large volumes of water causes – as EPA first explained a decade ago – “multiple types of undesirable a nd unacceptable adverse environmental impacts,” including but not limited to entrainment and im pingement; reductions of threatened, endangered or other protected species; damage to critical aq uatic organisms, including important elements of the food chain; diminishment of a population’ s compensatory reserve; losses to populations including reductions of indigenous species popu lations, commercial fi sheries stocks, and recreational fisheries; and stresses to overa ll communities and ecosystems as evidenced by reductions in diversity or other chan ges in system structure and function. 7

In the Riverkeeper I case, the Second Circuit observed that “[t]he environmental impact of [cooling water intake] systems is staggering: A single power plant might impinge a million adult fish in just a three-week pe riod, or entrain some 3 to 4 billi on smaller fish and shellfish in a year, destabilizing wildlife populatio ns in the surrounding ecosystem.” 8

Not only have EPA and the courts previous ly recognized and documented the staggering adverse environmental impacts of once-through c ooling systems, but other federal and state agencies, and biologists and other professionals in the private s ector have as well. In the preambles to the Phase I, Phase II and Phase III rules, EPA included lengthy discussions of these impacts under the heading “Environmental Impact (s) Associated with Cooling Water Intake

Structures.” 9 Astonishingly, in this rulemaking, the agen cy did not even bother to include (or,

7 66 Fed. Reg. 65,256, 65,292 (Dec. 18, 2001) (Final Rule - National Pollution Discharge Elimination System: Regulations Addressing Cooling Water In take Structures fo r New Facilities); see also 69 Fed Reg. at 41,586.

8 Riverkeeper v. EPA , 358 F.3d 174, 181 (2d Cir. 2004) (hereinafter “ Riverkeeper I ”).

9 65 Fed. Reg. 49,060, 49,071-75 (col. 3) (Aug. 10, 2000) (National Pollution Discharge Elimination System– Regulations Addressing Cooling Water Intake Structures fo r New Facilities); 66 Fed. Re g. at 65,262 (col. 3); 67 Fed. Reg. 17,122, 17,136-40 (col. 1) (Apr. 9, 2002) (National Pollution Discharge Elimination System–Proposed Regulations to Establish Requirements for Cooling Water In take Structures at Phase II Existing Facilities); 69 Fed. Reg. at 41,586-90 (col. 1); 69 Fed. Reg. 68,444, 68,461-66 (col. 2) (Nov. 24, 2004) (National Pollution Discharge Elimination System–Proposed Regulations To Establish Requirements for Cooling Water Intake Structures at Phase III Facilities); 71 Fed. Reg. 35,006, 35,012-14 (col. 3) (June 16, 2006) (National Pollutant Discharge Elimination System–Final Regulations To Establish Requirements for C ooling Water Intake Structures at Phase III Facilities). The rulemaking record for this rule in cludes “the data and information contai ned in the records supporting the Phase I, Phase II, and Phase III rulemakings.” 76 Fed. Reg. at 22,184 (col. 1).2 perhaps, studiously avoided including) a similar discussion of adverse impacts in the preamble. Instead, this important discussion is buried in a supporting document (the EEBA), which the vast majority of even the interested public will not rea d. That failure is emblematic of EPA’s current dereliction of its responsibility to protect the aquatic environmen t. While EPA’s discussion of adverse environmental impacts has faded into th e support documents, the impacts themselves continue unabated, and are discussed in these comments immediately below.

1. Massive Water Withdrawals

Virtually all of the adverse environmental im pacts of cooling water intake structures are caused by the massive withdrawal of water into the plants thro ugh those structures. With an actual daily intake volume in excess of 200 billion gallons per day, or 75 trillion gallons per year, industrial cooling wate r systems are, by far, the largest sour ce of water withdrawals in the United

States. 10 Steam-electric power plants use the vast majority of this massive volume, accounting for 93 percent of the total saltwater use, 41 percen t of total freshwater use, and 49 percent of all

water use nationwide. 11 Power plants use more water than any other industry sector in the country, withdrawing more than all irri gation and public water supplies combined. 12
Manufacturing facilities (p rimarily in the pulp and paper, chemicals, primary metals, and petroleum refining sectors) also use appreciable vo lumes of water, but far less than power plants.

EPA estimated that 633 presently operating power plants have a desi gn intake flow (DIF) greater than 2 million gallons per day (MGD). 13 Collectively, these power plants have the capacity to withdraw more than 370 billion gallons per day (BGD) – more than 135 trillion gallons per year – from our nation’s waters for cooling. 14 A typical power plant using oncethrough cooling withdraws hundreds of millions to several billion gallons of water per day. EPA estimated that 112 power plants have DIFs gr eater than one BGD and another 145 have DIFs

between 500 MGD and 1 BGD. 15 Approximately 21 percent of the plants withdraw from an ocean, estuary or tidal river; se ven percent from the Great Lakes; and approximately 72 percent

10 EPA, Environmental and Economic Benefits Analys is of the Proposed Section 316(b) Existing Facilities Regulation (March 28, 2011)(“2011 EEBA”), at 1-3, Table 1-1 (note unweighted, increase by less than 10%); see also J.F. Kenny et al., Estimated Use of Water in the United States in 2005 , U.S. Geological Surv ey Report, Circular 1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c 1344.pdf (last visited July 2011).

11 J.F. Kenny et al., Estimated Use of Water in the United States in 2005, U.S. Geologi cal Survey Report, Circular 1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c 1344.pdf (last visited July 2011).

12 Id

.
13 EPA estimated from its 1999 and 2000 questionnaires that there were 671 power plants above the 2 MGD threshold and that 38 have ceased operation, leaving 638 facilities still operating. See EPA, Technical Development Document for the Proposed Section 316(b) Phase II Exis ting Facilities Rule (2011), (hereinafter “2011 TDD”), at 4- 4, Exh. 4-1, Cooling Water Use in Surveyed Industries (estimating that 671 electric generating facilities withdraw more than 2 MGD); see also 76 Fed. Reg. at 22,190 (“According to th e 2007 EIA database, 38 of the 671 facilities have ceased operation since the Survey”). It should also be noted that the refe rence to “Phase II” in the title of the 2011 TDD appears to be a vestige that should have been deleted, given that the existing (power plant and manufactuers) rule is no longer referred to as Phase II.

14 2011 TDD, at 4-4, Exh. 4-1.

15 2011 TDD, Exh. 4-3. Note that these numbers were based on EPA’s 1999/2000 questionnaires; EPA more recently estimated that 38 of the 671 power plants have closed. See footnote 13, supra

.3 from a freshwater (non-Great) la ke, river, stream or reservoir. 16 Although EPA’s presentation of the data is very unclear it a ppears that approximately 75 percen t of the cooling systems are oncethrough and about 25 percent are closed-cycle. 17 Adding manufacturing facilities, which have a collective capacity of 39 BGD, yields a grand total of 409 BG D or nearly 150 tr illion gallons per year of cumulative design intake capacity by th e approximately 1,200 indust ry facilities subject

to the rule. 18

2. Impingement and Entrainment

Because cooling water intake structures re move such extraordinarily large amounts of water from natural waterbodies, their withdrawals necessarily affect the full spectrum of organisms at all life stages in the aquatic ecosy stem, killing billions of fish, destroying habitats and destabilizing aquatic populations. 19 The principal environmental damage is the mortality of aquatic organisms through entrainment and impingement.

Entrainment occurs when fish and shellfish, eggs, larvae, and other organisms too small

to be screened out are drawn th rough a cooling water intake st ructure into a plant’s cooling system. As small, fragile entrained organisms pass through the cooling system, they are subject to mechanical, thermal, and toxic stress: incl uding physical impacts in the pumps and condenser tubing; pressure changes caused by diversion of the cooling wate r into the plant or by the hydraulic effects of the condenser s; sheer stress; thermal shock in the condenser and discharge tunnel; and, chemical toxemia induced by antifouli ng agents such as chlorine. Few, if any, entrained organisms survive. 20

Impingement occurs when larger fish and other aquatic organisms become trapped on screening devices or other barriers installed at th e entrance of the intake structure. Impingement is caused by the force of water passing through th e intake structure and ca n result in starvation and exhaustion (when organisms are trapped agai nst an intake screen ), asphyxiation (when organisms are forced against a intake barrier by velocity forces that prevent proper gill movement or when organisms are removed fr om the water for prolonged periods of time), descaling (when organisms are removed from an intake screen by a wash system), and other physical harms. 21 A substantial number of the aquatic organisms entrained and impinged are killed or subjected to significant harm. 22

Cooling water withdrawals kill the full spectrum of organisms in the aquatic food chain: phytoplankton (tiny, free-floating photosynthe tic organisms); zooplankton (small aquatic

16 2011 TDD, Exh. 4-6.

17 2011 TDD, Exh. 4-8.

18 2011 TDD, Exh. 4-1.

19 See Riverkeeper v. EPA , 358 F.3d 174, 181 (2d Cir. 2004) (“ Riverkeeper I ”); Cronin v. Browner , 90 F.Supp.2d 364, 366 (S.D.N.Y. 2000) (“[C]ooling water systems ‘may interfere with the maintenance or establishment of optimum yields of sport or commercial fish and shellfish, decrease populations of endangered organisms, and seriously disrupt sensitive ecosystems.’”).

20 66 Fed. Reg. at 65,263 (col. 1); see also 65 Fed. Reg. at 49,072.

21 66 Fed. Reg. at 65,263 (col. 1).

22 Id . (col. 2-3).4 organisms that consume phytoplankton); fish, shellfis h, crustaceans, reptiles (such as sea turtles) and marine mammals (such as seals and sea lion s) at all life stages, including eggs, larvae, juvenile, and adult; and many other forms of a quatic life, including thr eatened, endangered and other protected species. 23

The death toll of wildlife from power pl ant intakes is staggeringly high. As EPA acknowledges, it is impossible to quantify with any precision the extent of the adverse environmental impacts caused by the withdrawal of more than 75 trillion gallons of water per year (actual flow) by power plan t cooling water intake structures. 24 Nonetheless, by EPA’s own highly conservative estimates, and looking only to fish and shellfish mortality, industrial cooling water withdrawals annually result in the de ath of at least 2.2 billion age one-equivalent 25 fish, crabs, and shrimp, and a minimum of 528 billion eggs

and larvae that serve as the ba sis of the aquatic food chain. 26 The actual mortality figures are likely much higher. As Drs. Pete r Henderson and Richard Seaby of PISCES Conservation, Ltd. point out in their attached report, there are many issues with the quality of the data EPA used to make these es timates. For example, many of the data sets used in the calculations are old and many of the studies do not re port all species caught, which causes some species to be underrepres ented in the national calculations. Thus, EPA’s estimate of the fish killed by power pl ants is likely an unde restimate – potentially a significant underestimate – of the actual mortality numbers. 27 A table in the 2011 EEBA states that 1,055,936,410,000 (that is, more than a trillion ) organisms are killed by in-scope facilities every year ̧ which is double the estimate of 528 billion individuals given in the preamble. 28 Although, according to EPA, th at discrepancy resulted from a programming error in the algorithm used to compile Appendix C of the EEBA, 29 the

23 66 Fed. Reg. at 65,262-263; 69 Fed. Reg. at 41,586; 66 Fed. Reg. at 65,262-263; California Environmental Protection Agency, State Wate r Resources Control Board, Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling, Final Substitute Environmental Document (May 4, 2010), hereinafter (“Calif. OTC Policy SED”) (Exh. 3), also available at http://www.waterboards.ca.gov/board_info/minutes/2010/ may/ 050410_5_staffpresentation.pdf (last visited May 16, 2011).

24 67 Fed. Reg. at 17,139 (col. 3) (“Studies like those described ... may provide only a partial picture of the severity of environmental impact associated with cooling water intake structures. ....[T]he methods for evaluating adverse environmental impact used in the 1970s and 1980s, when most section 316(b) evaluations were performed, were often inconsistent and incomplete...”).

25 According to EPA, “[t]he Equivalent Adult Model (EAM) is a method for converting organisms of different ages (life stages) into an equivalent number of individuals in any single age. For its 316(b) analyses, EPA standardized all I&E mortality losses into equivalent numbers of 1-year-old fish, a value te rmed age-1 equivalents (A1Es).” 2001 EEBA at 3-2 (internal citation omitted). This adult or age-1 “equivalent” method, however, is ecologically bankrupt, misleading, and illegal, and th erefore should not be used, as a measure of the impacts caused by cooling water intake strucutres or the benefits of installing prot ective technologies because large number of eggs and larvae are not “equivalent” to smaller numbers of adult fish. In addition to becoming juveniles and then adults in later life stages, eggs and larvae also play a highly significant role in the aquatic ecoystem, which the EAM and A1E metrics ignore.

26 76 Fed. Reg. at 22,239 (col. 1).

27 See Biological comments on the US EPA’s 2011 proposed rule for cooling water intake structures at existing facilities , Henderson, P.A. and Seaby, R. M. H., PISCES C onservation, Ltd., hereinafter (“PISCES Report”) (attached as Appendix B).

28 2011 EEBA, Table C-16, p. C-27.

29 Communication between Tom Born and Reed Super, June 14, 2011.5 actual fish and shellfish losses at all life stag es may well be closer to that one trillion figure. In many cases, the toll on fisheries by power plants rivals or ex ceeds that of the fishing industry.

As just several examples of the devasting aquatic mortality at hundr eds of power plants across the country:

• The Salem Nuclear Generating Station in New Jersey withdraws over 3 billion gallons per day from Delaware Bay a nd kills an estimated 375,000 white perch, 281,746 herrings (alewife & blueback), 305,000 spot, 61,100 Atlantic croaker, 3,239 striped bass, 842,000,000 bay anchovy and 1,120,000 weakfish annually – four times as many bay anchovy and weakfish each year than are commercially caught in the Delaware Estuary. 30

• The Northport power plant on the north shor e of Long Island, New York, withdraws up to 939 million gallons per day from Long Island Sound and entrains an estimated 8,430,808,238 fish eggs and larvae of all species each year. 31

• The Brunswick nuclear plant on the Cape F ear estuarine system in North Carolina,

has entrained as much as 3-4 billion individu al fish and shellfish at early life stages annually. Studies there have predicted an associated 15-35 percent reduction in populations, which may be altered beyond recovery; 32

• On Florida’s Gulf Coast, the Crystal Ri ver power plant seriously reduces forage species and recreational and commerci al landings (e.g., 23 tons per year); 33

• On Lake Michigan, the D.C. Cook nuclear plant killed one m illion fish during a three-week study period. 34

• Huge numbers of fish are also entrained at the Indian Point power plant, situated in a narrow section of the Hudson River estuary ju st south of Peekskill. As reported by

30 Versar, Technical Review and Evaluation of Thermal Eff ects Studies and Cooling Water Intake Structure Demonstration of Impact for the Salem Nuclear Generating Station at § VI-4 (Revised Final Report) (1989) (Exh. 4) (reported on an “equivalent adult” basis). 30 million pounds of bay anchovy and weakfish are lost each year due to entrainment and impingement at Salem compared to 6.8 million pounds of yearly commercial landings between

1975-1980.

31 New York State Department of Environmental Conservation, Best Technology Available (BTA) for Cooling Water Intake Structures, DEC Policy Issuing Authority , Draft, March 4, 2010, Appendix A: BTA Policy Technical Document, Table 1: Estimated Entrainment and Impingement at Major New York Facilities Using Once-Through Cooling Water, p. 2 of 20 (hereinafter “DEC Draft BTA Policy”) (Exh. 5); see also Network for New Energy Choices, Reeling in New York’s Power Plants: The Case for Fish-Friendlier Power (June 2010) (Exh. 6)

32 67 Fed. Reg. at 17,138.

33 Id

.
34 Id

.6 the New York State Department of Envi ronmental Conservation, 1.2 to 1.3 billion fish eggs and larvae are entrai ned at Indian Point each year. 35

• Cumulatively, the five power plants on th e Hudson River (Indian Point, Bowline,
Roseton, Lovett 36 and Danskammer) have caused year -class reductions estimated to be as much as 79 percent, depending on fish species. 37 The generators’ 2000 analysis of three of these plants complete d in predicted year-cla ss reductions of up to 20 percent for striped bass, 25 percent fo r bay anchovy, and 43 percent for Atlantic tomcod, even without assuming 100 percent entrainment mortality. 38 New York State

has concluded that these losses could serious ly deplete any reserve or compensatory capacity needed to survive unfavorable environmental conditions. 39 Indeed, data shows that in the Hudson River, 10 of 13 key species are in decline. 40

• The Brayton Point facility in Somerset, Massachusetts withdraws 1.3 billion gallons per day from Mt. Hope Bay and has appare ntly caused an 87 percent reduction in finfish abundance since a 50 percent increase in its cooling water withdrawal in

1985. 41

• At the San Onofre Nuclear Generating Stati on on the Southern California coast, in a normal (non-El Niño) year, 121 tons of mi dwater fish are entrained, causing a 34-70 percent decline in Pacific Ocean fi sh populations within 3 kilometers. 42

• A 2005-6 study commissioned by the owner of the Bayshore power plant on Lake

35 New York State Notice of Intention to Participate and Petition to Intervene, In re: License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. , U.S. Nuclear Regulatory Commission Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07- 858-03-LR-BD01, DPR-26, DPR-64 (Nov. 30, 2007), p. 286 (Exh. 7), also available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf /noiindianpoint.pdf (last visited June 2011).

36 The Lovett plant has since closed.

37 67 Fed. Reg. at 17,138, citing John Boreman and Phillip Goodyear, Estimates of Entrainment Mortality for Striped Bass and Other Fish Species Inhabiting the Hudson River Estuary , American Fisherie s Society Monograph 4:152-160, 1988 (Exh. 8).

38 Id ., citing Consolidated Edison Company of New York, Draft environmental impact statement for the state pollutant discharge elimination system permits for Bowlin e Point, Indian Point 2 & 3, and Roseton steam electric generating stations (2000).

39 67 Fed. Reg. at 17,138, citing New York Department of Environmental Conservation, Internal memorandum provided to the USEPA on NYDEC’s position on SPDES pe rmit renewals for Roseton, Bowline Point 1 & 2, and Indian Point 2 & 3 generating stations (2000).

40 A report commissioned by Riverkeeper and released on May 15, 2008, The Status of Fish Populations and the Ecology of the Hudson , produced by Pisces Conservation Ltd., reveals that many Hudson River fish are in serious long-term decline. Of the thirteen key species studied, ten have dec lined in abundance since the 1980s (shad, tomcod, bay anchovy, alewife, blueback herring, rain bow smelt, hogchoker, white catfish, weakfish and white perch) (Exh. 9) also available at http://www.riverkeeper.org/documen t.php/758/THE_STATUS_OF_F.pdf

.
41 67 Fed. Reg. at 17,138, citing Gibson , Mark R., R.I. Div. Fish and Wildlife, Comparison of Trends in the Finfish Assemblage of Mt. Hope Bay and Narragansett Bay in Relation to Operations at the New England Power Brayton

Point Station (1996) (Exh. 10). Brayton is retrofitting cooling towers to address this damage.

42 67 Fed. Reg. at 17,139 (col. 1), c iting S. Swarbrick and R.F. Ambrose (1988).7 Erie in Ohio estimated that more than 60 million adult fish and more than 2.5 billion fish eggs and larvae were killed in a given year. 43 A later study of the Bayshore plant by the University of Toledo put the number of fish eggs and larvae killed at more than 12 billion per year. 44

• New York’s Huntley Generating station, located along the Niag ara River, which

connects Lake Ontario to Lake Erie near th e world-famous Niagara Falls, is estimated to entrain over 105 million fish eggs and larvae per year, with annual impingement of well over 96 million adult and juvenile fish – the largest impingement toll of any power plant in the state. 45

• On the shores of Lake Michigan in Wisconsin, the Oak Creek power plant was estimated by its operator to impinge well over 2 million fish weighing 57-plus tons in a single year on its intake screens. In addition, between April and October of 2002, it entrained over 6 million larvae and over 9 million fish eggs. 46

3. Taking of Endangered and Threatened Species

Since power plant cooling water intake structures generally su ck in a cross-section of all species present in the waterbody, an y plant located near the habitat or range of a rare or special status species is likely to be impinging and/or entraining indi viduals of that species. EPA explained in the preamble that cooling water intake structures may harm threatened or endangered species in several ways : populations of protected species may suffer direct harm as a result of impingement or entrainment mortality; th ey may suffer indirect harm if the withdrawals alter food webs; and intake struct ures may alter habita t critical to their long-term survival. 47

EPA identifies 88 threatened or endangered sp ecies at risk from cooling water intakes (which is more than a third of the threatened or endangered species EPA assessed) and more than 130,000 baseline losses of threatened and endangered species annually. 48 Yet EPA acknowledges even these numbers are likely to be underreported. 49 Significantly,

43 Kinetrics, Bay Shore Power Plant Cooling Water Intake Structure Information and I&E Sampling Data (January 2008) (Exh. 11), also available at http://www.epa.state.oh.us/portals/35/permits/bayshore_IE_data_collection.pdf (last visited May 2011).

44 Christine Mayer, University of Toledo, Effects of Bayshore Power Plant on Ecosystem Function in Maumee Bay, Western Lake Erie, Annual Progress Report to NOAA: October 2010-February 2011 (Exh. 12), also available at http://www.utoledo.edu/as/lec/research /be/docs/maumee_bay_mayer_etal_annual_r.pdf (last visited July 2011).

45 DEC Draft BTA Policy, Appendix A: BTA Policy Technical Docume nt, Table 1: Estimated Entrainment and Impingement at Major New York Facilities Using Once -Through Cooling Water, p. 2 of 20 (Exh. 5).

46 Public Service Commission, Wisconsin Department of Natural Resources, Final EIS for the Elm Road Power

Plant , Chapter 8 (Exh. 13); see also Sierra Club, Giant Fish Blenders: How Power Plants Kill Fish & Damage Our Waterways (And What Can Be Done To Stop Them) , July 2011 (Exh 14).

47 76 Fed. Reg. at 22,244 (col. 2-3).

48 2011 EEBA at 5-3 and 5-8.

49 2011 EEBA at 5-8. Because threaten ed and endangered species are, by de finition, rare, they will appear in samples in much lower frequency than common species and since sampling is limited, may be missed entirely; further, there is a strong disincentive for plant operators to report the taking of threatened and endangered species, which may be prohibited by federal and/or state law.8 “[impingement and entrainment] mortality may either lengthen population recovery time, or hasten the demise of these species.” 50

As just several examples,

• The Pittsburg and Contra Costa Plants in the San Francisco Bay Delta in northern California can impinge and entrain more than 300,000 endangered and threatened species per year, includi ng Delta smelt, Sacramento splittail, Chinook salmon, steelhead trout. 51

• From 1976 to 1994, approximately 3,200 threatened or endangered sea turtles entered enclosed cooling water inta ke canals at the St. Lucie Nuclear Generating Plant in Florida. 52 In the first 13 years of that period, 122 (7.5%) of the 1,631 loggerheads, 18 (6.7%) of the 269 green turtles, and four Kemp’s ridleys entrapped in the canal were found dead. 53

• From 1992–2004, a total of 32 sea turtles – loggerhead, green and Kemp’s ridley – were found captured from the in take trash bars at the Oyster Creek Generating Station. 54

4. Fish Population Declines

As EPA has recognized, “studies estimating the impact of impingement and entrainment on populations of key commercial or recreational fish have predicted substantial declines in population size. This has lead to concer ns that some populations may be altered beyond

recovery .” 55 Moreover, even where a fish populati on has not yet experienced a documented decline, the loss of large number s of individuals deplete the sp ecies’ ability to survive other unfavorable environmental conditions, whether man-made or natural, such as drought and climate change. 56 EPA has also noted the concerns of its sister agencies in this regard:

50 2011 EEBA at 2-12.

51 Id . (numbers of fish expressed as age 1 equivalents).

52 66 Fed. Reg. at 65,263 (col. 3), citing, Florida Power and Light Company, Assessment of the impacts at the St. Lucie Nuclear Generating Plant on sea turtle species found in the inshore waters of Florida (August 1995) [DCN 10-5516] (Exh. 15).

53 Committee on Sea Turtle Conservation, National Research Council (U.S.), D ecline of the sea turtles: causes and prevention, at 112, National Academies Press (1990) [DCN 10-4845]; see also Florida Power & Light Co., Assessment of the Impacts of the St. Lucie Nuclear Genera ting Plant on Sea Turtle Species Found in the Inshore Waters of Florida , at 5 (August 1995) [DCN 10-5516] (Exh. 15) (The St. Lucie plant has impinged five species of endangered sea turtles—logg erhead, green, Kemp's ridley, leatherback and hawksbill).

54 Amergen Energy Company, LLC, Assessment of the Impacts of the Oyst er Creek Generating Station on Kemp’s Ridley, Loggerhead, and Atlantic Green Sea Turtles at 6-32, Table 6-2 “Mortality of Sea Turtles Captured From Intake Trash Bars at the Oyster Creek Generating Station 1969-2004 (Live/Dead)” (Dec. 2004) (Exh. 16).

55 66 Fed. Reg. at 65,264 (col. 1) (emphasis added).

56 69 Fed. Reg. at 41,588 (col. 1).9 ... NMFS [the National Marine Fisheries Service] documented in several fishery management plans that cooling water intake structures are one of the threats that may adversely affect fish stocks and their habitats. 57

... NOAA documents in a number of their fishery management plans that cooling water intake structures, particularly once-through cooling water systems that withdraw large volumes of water, caus e adverse environmental impacts due to significant impingement of juveniles a nd entrainment of eggs and larvae.” 58

5. Depressed Commercial and Recreational Fishing Yields

Because impingement and entrainment cause fi sh populations to decline, there are fewer fish available to be caught by commercial and recreational fisherman, thereby depressing their harvests. Although estimating the extent of these depressed fishery yields is highly imprecise, and depends on, among other things, rudimentary assumptions about the relationship between fish stock and harvest, 59 EPA estimated annual commercial and recreational fishing losses due to impingement and entrainment losses as follows:

Region Commercial Fishing Losses (pounds) Recreational Fishing Losses(number of harvestable adult fish)

California 1,379,000 1,022,339
North Atlantic 430,000 761,183
Mid-Atlantic 10,672,000 9,081,061
South Atlantic 99,000 133,897
Gulf of Mexico 5,559,000 2,851,347
Great Lakes 346,000 349.648
Source: 2011 EEBA, Chs. 6, 7

For the reasons discussed above, these are likely significant underestimates.

6. Aquatic Community and Ecosystem Impacts

Impingement and entrainment mortality “h as immediate and direct effects on the population size and age distribut ion of affected species, a nd may cascade through food webs.” 60
In particular, EPA has recognized that “the loss of large numbe rs of aquatic organisms” may affect not only “stocks of various species” and their compensatory reserve, but also “the overall

57 66 Fed. Reg. at 65,295 (col. 1) (citing DCN# 2– 024M, 2–024N, and 2–024O).

58 66 Fed. Reg. at 65,297 (col. 3).

59 For example, EPA assumed a linear relationship between stock and harvest, meaning, for example, that a 10 percent decrease in a fish population would reduce the harvest by 10 percent.

60 2011 EEBA at 2-9.10 health of ecosystems.” 61 In addition to altered food webs, in the 2011 EEBA, EPA discusses several other related aquatic co mmunity and ecosystem impacts, including “altered community structure and patchy distribution of species,” “reduced taxa and ge netic diversity,” and “nutrient cycling effects.” 62

Significantly, in a 2004 Federal Register public ation, EPA approvingly cited an analysis of such ecosystem effects prepared by the New York State Department of Environmental Conservation (NYSDEC) in connection with the permitting of three Hudson River power plants.

NYSDEC found that entrainment not only reduces adult populations of the species whose eggs and larvae are entrained and depletes the species’ ability to survive unfavorable environmental conditions, but, perhaps most signi ficantly, diminishes the forage base, which disrupts the food chain, transferring energy fr om higher to lower trophic 63 levels and compromising the health of the entire aquatic community. 64 In particular, as NYSDE C and EPA explained, using a simplified example, if an individual bay anchovy is killed via entrainment and disintegrated upon passage through an intake structure it is no longe r available as food to striped bass and other top predators, and is instead consumed only by lowe r trophic level organisms, such as detritivores (organisms that feed on dead organic material), thus transferring energy from the top of the ecosystem to the bottom and affecting the inte grity and proper functioning of the system. Likewise, the entrained bay an chovy would no longer be avai lable to consume phytoplankton, which upsets the distribution of nutrients in the ecosystem. 65

Furthermore, while often overlooked, intake structures destroy countless small organisms (some of which are microscopic) that are eco logically important. These include benthic organisms (i.e., “bottom dwellers” such as musse ls, anemones, crabs and shrimp) and planktonic organisms (i.e., free-floating microscopic plants a nd animals), which “are an important source of food for other aquatic organisms and an essent ial component of the food chain in aquatic ecosystems.” 66

7. Reduced Ecological Resilience

As EPA has recognized, the effect of long-te rm or chronic impingement and entrainment mortality may lead to a decrease in ecosystem re sistance and resilience – th at is, the ability of ecosystems to resist and recover from disturbances such as inva sive species and unusual weather

events like hurricanes or severe flooding. Consequently, EPA found that mortality caused by cooling water intake structures is “likely to reduce the ability of ecosystems to withstand and recover from adverse environmental impacts, whether those impacts are due to anthropogenic effects or natural variability.” 67

61 66 Fed. Reg. at 65,292 (col. 2).

62 2011 EEBA, pp. 2-16 to 2-17.

63 The term “trophic” refers to the feeding habits or food relationship of different organisms in a food chain.

64 69 Fed Reg. at 41,587-88, citing NYS DEC, 2003, Final Environmental Impact Statement: Concerning the Applications to Renew NY SPDES Permits for the Roseto n 1 & 2, Bowline 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations.

65 Id

.
66 66 Fed. Reg. at 65,263 (col. 1 at fn 2).

67 2011 EEBA, p. 2-17, citing C. Folke, S. Carpenter, et al., “Regime Shifts, Resilience, and Biodiversity in11 8. Thermal Discharges

The discharge of heated water from cooling systems has also been shown to harm fish and wildlife and has long been recognized to have effects upon the st ructure and function of
ecosystems. 68 The operational differences between on ce-through cooling systems and closedcycle cooling systems will significantly reduce the thermal load of the discharge to surface water. Unlike once-through cooling systems, wher e the entire thermal load is delivered to the surface water body, in a closed-cycle cooling system most of the h eat is transferred to the air resulting in evaporation. 69 Thus, irrespective of how the flows are configured, there will be a

substantial reduction in the thermal load of the e ffluent from a closed-cyc le system compared to a once-through system.

In the EEBA, EPA notes that:

Numerous studies have shown that therma l discharges may substantially alter the structure of the aquatic community by modifying photosynthetic, metabolic, and growth rates, and reducing levels of DO [dissolved oxygen]. Thermal pollution may also alter the location and timing of fish behavior including spawning, aggregation, and migration, and may result in thermal shock-induced mortality for some species. Thus, thermal pollution is likely to alter the ecological services provided by ecosystems surrounding facilitie s returning heated cooling water into nearby waterbodies. 70

The EEBA also explains that facility-specifi c factors control the de gree to which thermal pollution will affect an aquatic ecosystem. Th ese factors include the volume of the waterbody source, other heat loads, the ra te of water exchange, the presen ce of nearby areas whose climate remains habitable for rare or endangered specie s when that of the surrounding area has been changed, and the extent that nearby fish species congregate. 71 As expected, adverse temperature effects may also be more prominent in eco systems that are already subject to other environmental stressors such as high bioc hemical oxygen demand (BOD) levels, sediment contamination, or pathogens. 72 Additionally, there are indire ct effects on fish and other

Ecosystem Management,” 35(1) Annual Review of Ecology, Evolution, & Systematics 557 (2004) [DCN 10-4770] (Exh. 17) and L.H. Gunderson, “Ecological Re silience – In Theory and Application.” 31 Annual Review of Ecology, Evolution, & Systematics 425 (2000) [DCN 10-4785].

68 Cronin , 90 F. Supp. at 366, citing James R. May & Maya K. van Rossum, “The Quick and the Dead: Fish Entrainment, Entrapment, and the Implementation and App lication of Section 316(b) of the Clean Water Act,” 20

Vt. L. Rev. 373, 382 (1995) (Exh. 18).

69 B. Dziegielewski and T. Bik, Southern Illinois University Carbondale, Water Use Benchmarks for Thermoelectric

Power Generation in the United States (prepared for United States Geological Survey) (2006) (Exh. 19).

70 2011 EEBA at 2-12, citing Bulthuis 1987; Chuang et al. 2009; Martinez-Arroyo et al. 2000; Poornima et al. 2005;

Leffler 1982.

71 2011 EEBA at 2-12-2-13.

72 2011 EEBA at 2-12.12 vertebrate populations caused by thermal discha rge, which include incr eased pathogen growth

and infection rates. 73

Indeed, there is a great deal of scientific literature addressing the harm to aquatic ecosystems caused by thermal pollution. 74 As noted by two research pr ofessors at the University of Maryland Center for Envir onmental Science, “temperature has long been recognized as a major environmental factor at the molecular, cell ular, tissue, organism and ecosystem levels of biological hierarchy.” 75

Increased demand for electricity in the 1960s and 1970s led to the expansion of steamelectric power plants. That boom accelerated res earchers’ and environmental managers’ interest in temperature effects. Researchers became even more concerned when it became apparent that the steam-electric power plant sector proposed to “heat virtually 100 perc ent of large non-tidal riverine flows during summer low-flow conditions.” 76

Elevated temperature induces behavioral changes that have been documented in important managed species such as bluefi sh, fluke, winter flounder, and tautogs. 77 Some of these behavioral changes include:

• Avoidance of parts or all of a waterbody by certain species during summer and early fall; 78

• Attraction to parts or all of a waterbody during wint er by species that should have migrated out of the area due to cold temperatures. 79

• Large-scale mortality (due to thermal shock fr om a rapid drop in temperature) resulting from the failure to migrate followe d by a planned or emergency shutdown. 80

73 2011 EEBA at 2-12.

74 See Kennedy & Mihursky, The Effects of Temperature on Invertebrates and Fish: A Selected Bibliography

, University of Maryland Center for Environmental Science (Exh. 20), available at http://www.mdsg.umd.edu/issues/ chesapeake/habitat/fishtemp/.

75 Id

.
76 Id

.
77 O. Donovan, D. Doyle, C. O’Neill and E. Kearns, “Thermal Plume Impact on Fish Distributions in Barnegat Bay,” 10(3) Bull. Amer. Lit. Soc. 14 (1977) (Exh. 21).

78 M.J. Kennish, “State of the Estuar y and Watershed: An Overview,” SI 32 Journal of Coastal Research 243 (2001) (Exh. 22).

79 M.J. Kennish, M.B. Roche and T.R. Tatham, “Anthropogenic effects on aquatic organisms,” in M.J. Kennish and R.A. Lutz (eds.), Ecology of Barnegat Bay, New Jersey , at 318-338 Springer-Verlag (1984) (Exh. 23), available at http://yosemite.epa.gov/water/owrccat alog.nsf/7322259e90d 060c885256f0a005 5db68/3c2b3d 081f4714fd85256b06 007233ee!OpenDocument

.
80 Oyster Creek Nucl ear Generating Station Fish Kill Monitoring Report, NRC ML#003684420 (January 2000) (Exh. 24); Oyster Creek 2001 Annual Environmental Operating Report, NRC ML#020660222 (February 2002) (Exh. 25); A. Cradic, New Jersey Department of Environmental Protection, Oyster Creek Generating Station fined for water violations and fish kills: DEP seeks compensation for Natu ral Resources Damages (December 12, 2002) (Exh. 26), also available at http://www.state.nj.us/dep/n ewsrel/releases/02_0131.htm.13 • Metabolic rate of organisms in creases with increased temperat ures resulting in decreased growth and survival, 81 especially during summer m onths when ambient water temperatures are at their peak.

• Tropical/subtropical invasive sp ecies are able to thrive in the surrounding warm water plume. 82

• Calefaction or thermal loading directly interf eres with physiological processes of biota, such as enzyme activity, feeding, reproduc tion, respiration, and photosynthesis. Less conspicuous, indirect effects, which are difficult to quantify, include greater vulnerability to disease, to changing gaseous solubilities, and to chemical toxicants associated with

thermal enrichment. 83

9. Chemical Discharges

As EPA notes in the EEBA:

One of the environmental impacts associated with power plant operations is the release of chemicals in the discharge of once-through cooling waters. These

chemicals include metals from internal co rrosion of pipes, valves and pumps (e.g., chromium, copper, iron, nickel, and zinc), additives (anti-fouling, anticorrosion, and anti-scaling agents) and their byp roducts, and materials from boiler blowdown and cleaning cycles. 84

These anti-fouling and cleaning chemical s can pose a risk to aquatic organisms downstream of the CWIS discharge, potentially causing organisms to develop acute and residual

effects. 85 As the EEBA explains, “[ a] typical biofouling proced ure is continuous low-level chlorination at chronic toxicity levels with an occasional high (“shock”) do se,” while the “use of oxidants (chlorine, bromide) ca n give rise to residuals and/ or disinfection byproducts (DBPs) such as trihalomethanes, haloace tic acid, bromoform, and others.” 86 Although the effects of some discharge chemicals are not well documented, in most cases, these effects, along with thermal and mechanical effects, are believed to be an additional component of the cumulative stress of entrainment on local aquatic ecosystems: “[C]oncentrations of these chemicals may be

additive to low-level chronic adverse effect with other an thropogenic stressors identified

above.” 87

81 T. L. Beitinger, W. A. Benne tt, R. and W. McCauley, (2000) Temperature Tolerances of North American Freshwater Fishes Exposed to Dynamic Changes in Temperature . Environmental Biology of Fishes, 58(3): 237 – 275 [DCN 10-4716].

82 M.J. Kennish (2001) State of the Estuary and Watershed: An Overview . Journal of Coastal Research, SI 32: 243- 273 (Exh. 22).

83 Id

.
84 2011 EEBA at 2-13.

85 2011 EEBA at 2-14, citing Kelso and Milburn 1979.

86 2011 EEBA at 2-14, citing Taylor 2006.

87 2011 EEBA at 2-14.14 10. Cumulative Impacts

Cooling water intake structur es also cause cumulative impacts, understood to refer to impacts caused by multiple power intake structures on the same waterway as well as the impacts

of the intake structures combin ed with fishing and other pressures. EPA has delineated these cumulative impacts in this rulemaking (in the EEB A) and previously in the preamble to EPA’s prior Section 316(b) rules: 88

In addition to impingement and entrainmen t losses associated with the operation of the cooling water intake structure, EPA is concerned about the cumulative overall degradation of the aquatic environment as a consequence of (1) multiple intake structures operating in the same wa tershed or in the same or nearby reaches and (2) intakes located within or adjacent to an impaired waterbody. Historically, impacts related to cooling water intake structures have been evaluated on a facility-by-facility basis. 89

Cumulative effects of CWISs are likely to occur if multiple facilities are located in close proximity such that they impinge or entrain aquatic organisms within the same source waterbody, watershed system , or along a migratory pathway of a specific species (e.g., striped bass in the Hudson River). The cumulative impacts of CWISs may be exacerbated by the pres ence of other anthropogenic stressors. 90

There is concern ... about the effects of multiple intakes on fishery stocks. ... EPA analyses suggest that over 99 percent of the existing facilities with cooling water withdrawal that EPA surveyed in its Section 316(b) survey of existing

facilities are located within 2 miles of wa ters that are identified as impaired and listed by a State or Tribe as needing development of a total maximum daily load (TMDL) to restore the waterbody to its de signated use. EPA notes that the top four leading causes of waterbody impairm ent (siltation, nutrients, bacteria, and metals) affect the aquatic life uses of a waterbody. The Agency believes that cooling water intakes potentially contribute additional stress to waters already showing aquatic life impairment from othe r sources such as industrial discharges

and urban stormwater. 91

88 Tellingly, however, the only references to “cumulative im pacts” in the preamble to the Proposed Rule are three

mentions of the cumulative financial burdens on power companies from EP A’s air, water, and hazardous waste rules. After years of cumulative impacts from intake structures taking their toll on waterways, EPA is now apparently more concerned about the cumulative effect of regulation on industry’s bottom line than the effect on aquatic resources.

89 66 Fed. Reg. at 65,263 (col. 2).

90 2011 EEBA at 2-17 (internal citation omitted).

91 66 Fed. Reg. at 65,263 (col. 2).15 11. Habitat Loss

As EPA also recognizes, “[m]ost 316(b) faci lities have been built on shoreline locations where power-generation buildings, roadways, CWIS s [cooling water intake structures], canals, impoundments, and other water storage or conveyan ce structures have often been constructed at the cost of natural habitat, includi ng terrestrial, aquatic, and wetlands.” 92 Moreover, the loss of

fish habitat due to construction of a power plant and its intake stru cture combined with the direct losses of fish from operation of the intake exer t even greater pressure s on aquatic species:

Habitat loss in adjacent shoreline areas exacerbates the effect of CWIS losses, since many fish species affected by I&E [i mpingement and entrainment] mortality (e.g., bay anchovy, winter flounder) rely on coastal wetlands as nursery areas. 93

12. Altered Flow Patterns in Source and Receiving Waters

Another adverse impact of cooling water inta ke structures recognized by EPA is that their massive withdrawals and discharges significantly alter patterns of flow within receiving waters

both in the immediate area of the intake and disc harge pipes, and in mainstream waterbodies, particularly in inland riverine settings. 94 In some ecosystems intake structures may cycle a substantial proportion of the water body through th e power plant’s cooling system. EPA noted

that “of the 521 facilities that ar e located on freshwater streams or rivers, 31 percent (164) of these facilities have average inta ke greater than 5 percent of the mean annual flow of the source

waters.” 95 Even if the volume of water in the ri ver stays relatively c onstant, “the flow characteristics of the waterbody, including turbul ence and water velocity, may be significantly altered. This is particularly true in locations with multiple CWISs located close to each other.” 96
Significantly, as EPA found:

Altered flow velocities and turbulence may lead to several changes in the physical environment, including sediment de position (Hoyal et al. 1995), sediment transport (Bennett and Best 1995), and tu rbidity (Sumer et al. 1996), each of which play a role in the physical struct uring of ecosystems. Biologically, flow velocity is a dominant c ontrolling factor in aquatic ecosystems. Flow has been shown to alter feeding rates, settlement and recruitment rates (Abelson and Denny 1997), bioturbation activity (Biles et al. 2003), gr owth rates (Eckman and Duggins 1993), and population dynamics (Sanford et al. 1994). In addition to flow rates, turbulence plays an importan t role in the ecology of small organisms, including fish eggs and larvae, phyt oplankton, and zooplankton. In many cases, the turbulence of a waterbody directly aff ects the behavior of aquatic organisms, including fish, with respect to swimming speed (Lupandin 2005), location preference with a waterbody (Liao 2007), pred ator-prey interactions (Caparroy et

92 2011 EEBA, pp. 2-2 to 2-3.

93 2011 EEBA, p. 2-3.

94 2011 EEBA, p. 2-15.

95 Id

.
96 Id

.16 al. 1998; MacKenzie and Kiorboe 2000), recruitment rates (MacKenzie 2000; Mullineaux and Garland 1993), and the metabolic costs of locomotion (Enders et al. 2003). The sum of these effects may re sult in changes to the food web or the location of used habitat, and thereby s ubstantially alter the aquatic environment. 97

These problems will likely be exacerbated by climate change. 98

13. Water Availability and Related Energy Impacts

The enormous amount of water required for pow er plant water withdrawals threatens not only electrical power generation, but the general sustainability of water use in the U.S. In 2005, cooling water withdrawals accounted for nearly 41 percent of all freshwater withdrawals and 49 percent of all water with drawals (fresh and saline) in the United States. 99 With hundreds of U.S. power plants still relying on once- through cooling, power plants are the largest water users in the country. The use of once-through co oling also represents an enorm ous opportunity cost to other water users. If cooling water is needed for downstream power plants, then upstream users must forego their use of this water to accommodate the needs of the power plants. This is particularly a problem in places where power plants are lo cated near thirsty cities and other users.

EPA’s Proposed Rule makes mention of the s upposed reliability thre ats the power sector may face due to modernization to closed-cycle cooling. 100 However, nowhere does EPA discuss the threats to power generation and water supplies if facilities continue to utilize once-through cooling. These threats must be considered a nd incorporated into any BTA determination.

a. Impacts on Upstream Be neficial Uses of Water

The massive amounts of water withdrawn by power plants’ once-through cooling systems affect water resource planning and land use pol icy in several fundamental ways. As an extremely telling example, consider the 1,021 MW coal-fired Gorgas Steam Plant in north central Alabama, which uses a once-though coo ling system to withdraw up to 978 million gallons of cooling water per day from the Black Warrior River. Like many power companies, Alabama Power has resisted upgrading the coo ling system to a once-through system, even though that would reduce the intake flow by approximately 95 percent. The adverse impacts of Gorgas’s massive withdrawals are, however, not limited to entrainment, impingement, thermal discharges, and their cons equential effects (which are felt no t only at the intake and downstream, but also upstream). That is because Alabama Power also operates a hydr oelectric dam (known as the Lewis Smith development as part of the Wa rrior River Hydroelectric Project) above the Gorgas Plant and, since 1974, the co mpany has operated the dam so as to ensure that Gorgas’ massive water requirements are met. The steam plants’ extremely large cooling water demands

97 Id

.
98 Id

.
99 J.F. Kenny et al., Estimated Use of Water in the United States in 2005, U.S. Geologi cal Survey Report, Circular 1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c 1344.pdf (last visited July 2011).

100 See, e.g. , 76 Fed. Reg. at 22,229.17 affect Alabama Power’s decisions both as to wh en to release water from the dam and how much

water to release.

Because of the purported “need” to ensure ma ssive flows to the downstream power plant, Alabama Power has opposed an alternative opera tional plan, proposed by residents, which would provide higher and more stable reservoir elevat ions in Smith Lake and thereby improve habitat for fish and wildlife (including a federally-listed species of mussel) and recreation in and on the

lake. 101 If, however, plants like Gorgas were requir ed to retrofit to closed-cycle cooling, the upstream dam could be operated in a more enviro nmentally and socially appropriate manner.

This sort of competition for water will only worsen as droughts intensify and temperatures increase due to climate change. Ofte n, the result will be that other beneficial uses of water upstream, including not only habitat and recreation but also drinking water and agriculture, will be curtailed in or der to supply the power plant.

As the Atlanta Journal and Constitution reported in 2007, industry’s contention that oncethrough cooling systems do not “consume” water fails to acknowledge the competition with upstream uses for those flows:

Utility water use has escaped scrutiny, in part, because false assumptions have guided public policy in water planning. Utili ties have argued for years that their use doesn’t matter because they return virtually all the water they use.

But use does matter when drought shrinks the water supply, and consumption from other sources puts pressu re on reservoirs and rivers.

A Southern Co. coal-fired plant in Florid a or its Farley nuclear plant in Alabama may put at least half of the water used back into the Chattahoochee River. But that water isn’t going back to Lake Lanier.

Power plants also require minimum rive r flows to keep operating. Low flows on the Coosa River forced Georgia Power to cut back energy output at one plant this

summer. 102

Another example of power plants’ massive water needs driving water resource and land use policies concerns flood-plai n development. In a draft policy proposal, the White House Council on Environmental Quality (CEQ) recomme nded that development and other unwise use of floodplains and flood-prone areas be avoided in order to serve a variety of goals including to “[p]reserve and restore the hydrologic and na tural resources functi ons” of those areas. 103 In

101 See Federal Energy Regulatory Commission, Final Environmental Assessment for Hydropower License, Warrior River Hydroelectric Project at 15-16, 40, 136, P-2165-022 (March 2009) (Exh. 27).

102 Ken Foskett, Margaret Newkir k, Stacy Shelton, “Georgia’s Wa ter Crisis: The Power of Water,” Atlanta Journal

Constitution (November 18, 2007) (Exh. 28).

103 See Council on Environmental Quality, Proposed National Objectives, Principles and Standards for Water and Related Resources Implementation Studies at 6 (Dec. 3, 2009) (Exh. 29), also available at http://www.whitehouse.gov /administration/eop/ceq/initiatives/PandG/. See also 74 Fed. Reg. 65,102 (Dec. 9, 2009)18 response, the Edison Electric Institute (EEI), so ught to perpetuate the status quo and urged CEQ

to factor the “availabili ty of cooling water” into its wa ter resource decisions, arguing that “cooling water intake structures are necessarily built in flood plains” and that such development

should not be considered “ina ppropriate or ... discouraged.” 104 Of course, EEI has it backwards: EPA should discourage the continued use of frag ile, precious waterfront land by power plants, rather than accept or encourage it. The demonstr ated ability of facilities in the Southwest to locate away from waterbodies and out of flood pl ains proves that power plants are not waterdependent.

b. Threats to Power Generation and Grid Reliability

Furthermore, in many cases and increasingly frequently, power plants relying on oncethrough cooling will be unable to operate due to the lack of sufficient volumes of water or because the water may not be sufficiently cool. The threats posed to re liable power generation by water availability and temperatur e issues are real and well known. 105 According to DOE, “[w]ater shortages, potentially the greatest challe nge to face all sectors of the United States in the

21 st century, will be an especially difficult issue fo r thermoelectric generators due to the large amount of cooling water required for power generation.” 106 Even industry recognizes these threats to reliability at once-through facilities due to water shortages. 107 For facilities using once-through cooling, “[i]f cooling water sour ces fall below the established minimum water level, or if the maximum thermal threshold for the discharge of cooling water cannot be met, a facility is required to power down or go offline.” 108

In 2003, an EPRI study presented county- level thermoelectric power generation constraints in the year 2025 based on projected water availability and el ectricity demands. As

(Council on Environmental Quality: Draft Principles and Standards Sections of the “Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies”; Initiation of Revision and Request for Comments).

104 Letter from C. Richard Bozek, EEI’s Director of Environmental Policy to Mr. Terrance L. Breyman, Deputy Associate Director for Natural Resources, CEQ at 5, 3 (April 5, 2010) (Exh. 30).

105 See Lisa Song, “Heat Waves Putting Pressure on Nuclear Power's Outmoded Cooling Technologies,” SolveClimate News (May 4, 2011) (Exh. 31), also available at http://www.reuters.com/article /2011/05/04/idUS163919996420110504

. See also National Research Council, Adapting to the Impacts of Climate Change at 73 (2010) (Exh. 32), also available at https://download.nap.edu/catalog.php?record_id=12783

.
106 National Energy Technology Laboratory (“NETL”), Estimating Freshwater Needs to Meet Future Thermoelectric Generation Requirements: 2010 Update at 9 (Sept. 30, 2010) [hereina fter “NETL 2010”] (Exh. 33).

107 Brent Barker, “Running Dry at the Power Plant,” EPRI Journal at 29-30 (Summer 2007) ( “It is critical to recognize . . . that although the once-through plant consumes only a small fraction of the water it withdraws, it needs the withdrawal to operate. Hence, under drought conditions, a generating plant may have to be shut down or severely curtailed in operation because of its inability to withdraw a sufficien t amount of water to meet its thermal discharge permit.”) (Exh. 34)

.
108 Nicole T. Carter, Congre ssional Research Service, Energy’s Water Demand: Trends, Vulnerabilities, and Management at 6 (January 5, 2011)[hereinafter “CRS 2011”] (Exh. 35), also available at http://www.fas.org/sgp/crs/misc/R41507.pdf

.19 shown in Appendix E, the report projected that thermoelectric cooling water withdrawals would be constrained in hundreds of U.S. counties by the year 2025. 109

Some of the underlying assumptions in the study may be outdated because the study has not been updated to reflect recent changes in power demand predictions 110 and climate change impacts to water availability. 111 Nonetheless, the study highlights the critical relationship between water and energy and the possible th reats to energy genera tion under the assumed

withdrawal scenarios.

More recently, the Union of Concerned Scie ntists compiled a sampling of reliability problems that have already occurred at onc e-through facilities because of water-related constraints, including: 112

• In 2006, high intake water temperatures during a heat wave forced four nuclear plants in the Midwest to reduce their electrical output when it was needed most. One plant in Prairie Island, MN, was forced to reduce output by 50%.

• Only by relying on water from irrigation s upplies did the 1,650 mw coal-fired Laramie River Station in Wheatland, WY, avert impacts to power production in 2008.

• In the summer of 2010, the Browns Ferry nuc lear plant in Athe ns, AL, significantly reduced output for five weeks because of hi gh discharge water temperature. This same facility had to reduce output for similar reasons in 2007. 113

As the UCS report and others highlight, threats to energy generation because of source water concerns arise not only in the arid areas of the western U.S., but also in an “increasing

number of water bodies in the East.” 114 The threats to energy reliability will only get worse with increases in energy use 115 and climate change, 116 and competition from other water users – such

109 Sujoy B. Roy, Karen V. Summers & Robert A. Goldstein, “Water Sustainability in the United States and Cooling Water Requirements for Power Generation,” 126 Water Resources Update 94 (Nov. 2003) (Exh. 36), also available

at http://opensiuc.lib.siu.edu/jcwre/vol127/iss1/12/

.
110 Interview with Sujoy Roy (Apr. 6, 2011).

111 CRS 2011 at 7.

112 Union of Concerned Scientists, The Energy-Water Collision: Power and Water at Risk (June 2011) (internal citations omitted) (Exh. 37), also available at http://www.ucsusa.org/assets/documents/clean_energy/ew3/powerand-water-at-risk-with-endnotes.pdf

.
113 CRS 2011 at 6.

114 Id. (citing U.S. Department of Agriculture Forest Service, 2000 RPA Assessment of Forest and Range Lands

, FS-687, at 14 (Feb. 2001) (Exh. 38)).

115 NETL 2010 at 1 (citing Energy Information Administration, Annual Energy Outlook 2010 with Projections to

2035 (Exh. 39) also available at http://www.eia.doe.gov/oiaf/aeo/index.html ).

116 CRS 2011 at 8; See also Mitch Weiss, Associated Press, Southern Drought May Force Nuclear Plants to Shut

Down (Jan. 24, 2008) (“The water was low on the Tennessee River and had become warmer than usual under the hot sun. By the time it had been pumped through the Browns Ferry plant, it had become hotter still – too hot to release back into the river, according to the TVA. So the utility sh ut down a reactor .”) (Exh. 40).20 as domestic and agricultural – will only get more intense, 117, 118 as the Associated Press has reported:

An Associated Press analysis of the na tion’s 104 nuclear reactors found that 24 are in areas experiencing the most seve re levels of drought. All but two are built on the shores of lakes and rivers and rely on submerged intake pipes to draw billions of gallons of water for use in cooling and condensing steam after it has turned the plants’ turbines.

Because of the yearlong dry spell gri pping the region, the wa ter levels on those lakes and rivers are getting close to th e minimums set by the Nuclear Regulatory

Commission. Over the next several months, the water could drop below the intake pipes altogether. Or the shallow water could become too hot under the sun

to use as coolant.

“If water levels get to a certain point, we ’ll have to power it down or go off line,” said Robert Yanity, a spokesman for South Carolina Electric & Gas Co., which operates the Summer nuclear plant outside Columbia, S.C.

* * *

During Europe’s brutal 2006 heat wave, French, Spanish and German utilities

were forced to shut down some of their nuclear plants and re duce power at others

because of low water levels – some for as much as a week. 119

In addition to these vulnerabilities due to inadequate water suppl y or increased water temperature, power plants using once-though cooli ng are also vulnerable due to the sheer volume of aquatic life being withdr awn from the source water:

• In September 1984, a flotilla of jellyfis h blocked the intake at the St. Lucie nuclear plant in Florida, forcing both of its nuclear reactors to shut down for several days due to la ck of cooling water. 120

• In July 2011, five generators were shut down due to jellyfish in Japan, Israel and

Scotland. 121

117 NETL 2010 at 9.

118 “According to a GAO 2003 report, national water ava ilability has not been comprehensively assessed in 25 years, thus water availability on a national level is ultima tely unknown. However, as the report goes on to say, current trends indicate that demands on the nation’s supp lies are growing while the nation’s capacity to store surface-water is increasingly mo re limited and ground-water is being deplet ed.” NETL 2010 at 9 (internal citations omitted).

119 Mitch Weiss, Associated Press, Southern Drought May Force Nuclear Plants to Shut Down (Jan. 24, 2008) (Exh. 40).

120 Union of Concerned Scientists, Got Water? at 5 (Dec. 4, 2007) (Exh. 41), also available at http://www.ucsusa.org/nuclear_pow er/nuclear_power_technology/ got-water-nucle ar-power.html

.21 • In March 2011, the McGuire nuclear plant was forced to shut down both reactors because of “macro-fouling” – where fish from Lake Norman clogged the plant’s
water system. 122

Meanwhile, EPA seems well aware of these type s of risks and of the benefits closedcycle cooling can provide. Indeed, EPA visited a nu mber of sites that already have retrofitted to closed-cycle cooling for a variety of reasons: 123

o McDonough (GA), Yates (GA), Cana dys (SC) and Wateree (SC) converted all generating units to closed-cycle cooling. 124

o Nearman Creek (KS) converted its gene rating units to reduce the need for cooling water at times of the year (s ummer) when the source water level is

low. 125 [During EPA’s site visit, facili ty representatives noted that its closed-cycle recirculatin g cooling system is easy to operate and actually leads to slightly better performance by the generati ng units, as the return water from the tower is cooler than river water.] 126

o Linden (NJ) constructed several new combined cycle units to replace retiring fossil units and uses grey wa ter from a nearby treatment plant for its makeup water. 127

EPA notes that, “[w]hile the reasoning for some retrofits may not explicitly include consideration of 316(b), flow re duction is clearly an issue in the forefront of permitting and operational decisions at many facili ties. Even in cases where 316( b) was not a consideration, the benefits to aquatic communitie s are realized nonetheless.” 128

c. Water Supply Sustainability Risks in a Changing Climate

This sort of competition for water will only worsen as droughts intensify and temperatures increase due to climate change. Climate change will have a significant impact on the sustainability of water s upplies in the coming decades, by increasing the risk that water supplies will not be able to keep pace with w ithdrawals in many areas of the United States. A

121 Peter Hanlon, Jellyfish to Power Plants: You Suck

, http://www.ecocentricblog.org/2011/07/26/jellyfish-topower-plants-you-suck/ (July 26, 2011) (Exh. 42).

122 U.S. Nuclear Regulatory Commission, McGuire Nuclear Station Licensee Event Report 369/2011-01, Revision 1 (Apr. 1, 2011) (Exh. 43), available at http://pbadupws.nrc.gov/docs/ML1110/ML111020305.pdf

.
123 2011 TDD at 2-14.

124 See Site Visit Report for McDonough-Atkinson Power Plant, February 11, 2009 [DCN 10-6536], Site Description Report for Yates Power Plant, February 11 , 2009 [DCN 10-6538]; Site Visit Report for Canadys Station, February 10, 2009 [DCN10-6535] and Site Visit Report for Wateree Station, February 10, 2009 [DCN 10- 6534], respectively.

125 2011 TDD at 2-14.

126 Site Visit Report of Nearman Creek Power Station, March 3, 2009, at 4 [DCN 10-6524].

127 See Site Visit Report for Linden Generating Station, May 26, 2010 [DCN 10-6557].

128 2011 TDD at 2-14.22 2010 study conducted by Tetra Tech for the Natu ral Resources Defens e Council (NRDC) found that in many parts of the na tion, water withdrawals already out pace renewable water supply. The Tetra Tech report also found that “[t]he impa cts of climate change wi ll greatly increase the number of areas where renewable water supply will be lower than withdrawal, therefore increasing the number of areas vulnera ble to future water shortages.” 129

The Tetra Tech study projected that wate r withdrawals in 2050 will greatly outpace available precipitation in many U.S. counties, as is shown in Appendix F. After considering a number of sustainability fact ors such as population and economi c growth, the Tetra Tech study further concluded that more than 1,100 U.S. coun ties in the lower 48 states will have higher risk of water shortages by 2050 as a result of climate change, as shown in Appendix G.

As EPA notes, the Proposed Rule has the po tential to address over half of the water

withdrawals in the entire nation. 130 Unfortunately, as is highlig hted herein, the proposed rule does little if anything to curtail th ese significant water withdrawals.

14. Industrial Use of Valuable, Scenic Waterfront Land

It is no coincidence that power plants are located along the c ountry’s mightiest rivers and on highly valued and scenic locations adjoining ou r most treasured oceans, lakes and estuaries: plants using once-through cooli ng need cooling water in volume s that can only be found at the edge of a major waterbody. Closed-cycle coo ling, however, lowers intake volumes to levels which can be met by alternative water sources as such municipal water supplies, ground water, or treated sewage efflue nt discharges. By using such altern ative water sources, power plants can be located away from waters of the U.S. Closed-cycle cooling thus decouples industrial cooling water needs from the need to site plants on sens itive, scenic and valuable waterfront property.

Such facilities can locate in brownfields or i ndustrial parks, avoiding incompatibility of land uses. This significant increase in siting flexibilit y, particularly for replaced, rebuilt or repowered facilities, is yet another advantage of movi ng away from once-through cooling and towards closed-cycle cooling.

B. Statutory Background : Congress Enacted Section 316(b) as Part of the 1972 Clean

Water Act Amendments to Standardize P ermitting and Minimize Once-Through Cooling’s Massive Water Withdrawals and Fish Kills.

When Congress enacted Section 316(b) as pa rt of the sweeping 1972 amendments to the Clean Water Act, it was well aware of the enorm ity of once-through coolin g water withdrawals, fish kills and thermal discharges, as well as the superiority of closed-cycle cooling. The provision was intended to standardize permitting and require the Best Technology Available – which was then and still is closed-cycle cooli ng – to minimize the water withdrawals and fish

kills.

129 Sujoy Roy et al., Tetra Tech, Evaluating Sustainability of Projected Water Demands Under Future Climate Change Scenarios (2010) (Exh. 44), also available at http://rd.tetratech.com/climatechange/projects/nrdc_climate.asp

.
130 76 Fed. Reg. at 22,189.23 1. In 1972 Congress Was Well Aware of the Enormous Damage Caused by Once-Through Cooling.

Although once-through cooling systems have been in use for more than a century, and the size of U.S. power plants dramatically increased after World War II, it was not until the late 1960s that federal policymakers turned their a ttention to the environmental damage caused by intake structures. In 1967, Senator Warren Magnuson warned that “by 1980 thermal power plants throughout the nation will require an amo unt of cooling water gr eatly in excess of the average flow of the mighty Mississippi at St. Louis.” 131 Congress first considered the impacts of power plants’ massive water usage during extens ive hearings on the effects of waste heat discharged from industrial facilities. 132 The White House was similarly concerned, and in 1968 President Lyndon Johnson’s staff issu ed a report explaining that “the large volumes of water withdrawn in once-through cooling processes [can have] as much or more effect on aquatic life than the waste discharges on which control measures are required.” 133

In the early 1970s, a number of well-publicized massive fish kills occurred at U.S. power plants, such as the Brayton Point Power Station in Mt. Hope Bay, Massachusetts, which killed an astonishing 164.5 million menhaden and river herring in just one day, July 2, 1971, 134 the P.H. Robinson plant in Galveston Bay, Texas, which impi nged more than 7 million fish in 12 months in 1969 and 1970, the Indian Point No. 1 nuclear facility on New York’s Hudson River, which killed 1.3 million fish over a 10 week period, 135 and the Millstone nuclear plant in Niantic Bay, Connecticut, where more than 2 million dead menh aden clogged the intake screens in the late

summer of 1971. 136

Public concern over these and other incide nts prompted Congress to add Section 316(b)

to the Clean Water Act amendments of 1972. 137 Significantly, during debate over the Clean

131 113 Cong. Rec. 30129 (1967) (Exh. 45).

132 Thermal Pollution, Hearings before the Subcomm. on Air and Water of the Senate Comm. on Public Works , 90th Cong., pts 1-4 (1968); id . at 1 (statement of Sen. Muskie) (“[b]y the end of the next decade, approximately one-sixth

of the total fresh-water runoff in th e United States will be required for cooling and condensing purposes.”) (Exh. 46); id . at 98-102, 104, 112-13, 137-38, 143 (testimony on intake impact on aquatic organisms); Environmental Effects of Producing Electric Power, Hearings before the Joint Committee on Atomic Energy , 91st Cong., pt. 1, 341- 345, 375-76 (1969) (intake impact).

133 Office of Science and Technology of the Executive Office of the President, Considerations Affecting Steam

Power Plant Site Selection , 46 (1968) (Exh. 47).

134 U.S. EPA, Development Document for Best Technology Available for the Location, Design, Construction and Capacity of Cooling Water Intake Structures for Minimizing Adverse Environmental Impact, 1976 at p. 9, table I-3 (Exh. 48). EPA reported that the fish were “mangled.” Id.

135 Clark and Brownell, Electric Power Plants in the Coas tal Zone: Environmental Issues, American Littoral Society Special Publication at V-8, tbl. V-B (1973) (Exh. 49); s ee also New York Times Abstracts , May 24, 1972, p. 94, col. 1 (“alleged ‘massive’ killing of fish at [Con Ed’s ] No. 2 nuclear-power plant at Indian Point on the Hudson River”) and New York Times Abstracts , March 1, 1972, p. 77, col. 3 (“more than 100,000 fish have been killed in last wk [at Indian Point]”) (Exh. 50).

136 Clark and Brownell, Electric Power Plants in the Coas tal Zone: Environmental Issues, American Littoral Society Special Publication (1973), p. V-8, tbl. V-B (Exh. 49); s ee also New York Times Abstracts , August 16, 1972, p. 41, col. 1 (“massive fish kill in Apr at Mills tone Point nuclear power complex”) (Exh. 51).

137 Although Section 316(b) has been occasionally described as “s omething of an af terthought,” ( Riverkeeper I , 358 F.3d at 187 n.12) because of the minimal discussion of that provision in the published legislative history of the24 Water Act, Senator James Buckley of New York cited with approval tw o newspaper articles reporting a decision of the Atomic Energy Commi ssion (AEC) to require Consolidated Edison to install closed-cycle c ooling at Indian Point. 138 The articles noted that the plants withdrew massive amounts of water from the Hudson River, entraining thousands of organisms per minute,

and that the AEC had ordered Consolidated Ed sion to stop removing su ch large volumes of water from the River and to install closed-cycle cooling in order to abate these massive fish

kills. 139 Troubled by the extraordinary mortality at Indian Point, Senator Buckley sought to ensure that regulatory agencies c ould require closed-cycle cooling at power plants. In response, Senator Edmund Muskie of Maine, the chief archite ct of the Act, assured Senator Buckley that EPA would have that authority. 140

2. The 1972 CWA Amendments Fundament ally Restructured U.S. Water Pollution Regulation by Replacing Ine ffectual Site-Specific Assessments of Water Quality with National Technology-Based Standards.

The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 141 In furtherance of this goal, in 1972, Congress fundamentally reformed the Act in what has been described as a “sea change” in this country’s water pollution control strategy. 142 Prior law had failed because, among other things, it “focused

on the tolerable effects rather than th e preventable causes of water pollution.” 143 Indeed, Congress passed the Federal Water Pollution C ontrol Act Amendments of 1972 (now known as the Clean Water Act) because it recognized that “‘the Federal water pol lution control program ...ha[d] been inadequate in every vital aspect ...’” 144

Clean Water Act, that is plainly incorrect. More voluminous unpublished materials documenting the committee negotiations on the precise wording of what was eventually codified into the three subsection of Section 316 show that, during extensive six-month negotiations, the committee discussed and debated intake structure regulations at length. These materials are all available in the National Archives and located in a series of “Cartons” labeled “Accession No. 46-75-003, Senate Public Works Committe e, Subcommittee on Environmental Pollution, Federal Water Pollution Legislation Files.” Within each box th ere are “Folders” with topic labels and often smaller individual “Files” with topic labels. In particular, there are five highly relevant committee files: (1) a File labeled “316,” containing drafts of Section 316, in a Folder labeled “Conference Committee Language” contained in Carton No. 2; (2) a file containing correspondence on “Phase I an d Phase II,” in that same Folder and Carton; (3) files labeled “9/13” and “9/14,” containing notes on the individual sessions of the House and Senate conferees held on September 13 th and 14 th , 1972, in a Folder labeled “Conference Committee Conference Sessions,” in Carton No. 2; (4) a File labeled “General,” containing internal co mmittee memoranda to Senate Muskie and to the Senate

Conferees in a file labeled “General” in Carton No. 2; and (5) a File labeled “Thermal” in Carton No. 1. Those files

are submitted herewith as Exhibit 52 (Exh. 52).

138 1 Legislative History of the Water Pollution Control Act Amendments of 1972 , 196-97 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973) (Exh. 53).

139 Id

.
140 Id .; see also In the Matter of: Carolina Power & Light Company (Brunswick Steam Electric Plant) , USEPA, Decision of the General Counsel, EPA GCO 41 at 178 (June 1, 1976) (noting that Congress was “well aware” of the impacts of intake structures when it enacted the CWA) (Exh. 54).

141 CWA § 101(a), 33 U.S.C. § 1251(a). The Act defines “pollution” to include “the man-made or man-induced alteration of the ... biological ... integrity of water.” CWA § 502(19), 33 U.S.C. § 1362(19).

142 Riverkeeper I , 358 F.3d at 184.

143 EPA v. California , 426 U.S. 200, 202-03 (1976).

144 Milwaukee v. Illinois , 451 U.S. 304, 310 (1981), quoting S. Rep. No. 92-414, 7 (1971), 2 Legislative History of25 The 1972 “Amendments were viewed by Congr ess as a ‘total restructuring’ and ‘complete rewriting’ of the existing water pollution legislation.” 145 The single most important regulatory reform achieved by the 1972 Act was the seemingly paradoxical notion that the nation’s ambitious water quality goals could best be achieved if they were no longer tied to compliance with water quality standards. Congress concluded that past efforts to maintain such a regulatory link had failed because the science of water ecology was too complex to measure the “tolerable effects” with the pr ecision necessary to have water quality standards serve as the primary touchstone for determining the appropriate le vel of control. 146

Congress deliberately established the NPDES program to relieve permitting agencies of the need to conduct costly, le ngthy, and indeterminate ecological studies to issue permits. Congress’s focus on uniform technology standard s in the 1972 amendments was an explicit repudiation of unsuccessful predecesso r statutes that relied on “wat er quality standards” as the primary method of pollution control. Prior to 1972, sources were re gulated “based on their effect on the surrounding water” and discharges were li mited only if they caused water quality to drop below an acceptable level. 147 But that approach created a “v irtually unbridgeable causal gap” because “proving that a particular polluter ha d caused the water quality to dip below the standards was all but impossible to satisfy.” 148 Thus, “Congress realized not only that its [pre1972] water pollution efforts ... had failed, but also that reliance on receivi ng water capacity as a crucial test for pollution levels had contributed greatly to that failure.” 149

To reverse the anarchy and ineffectiveness of case-by-case regulation, Congress required EPA to set standards for categories of polluters:

In presenting the Conference Report to the Senate, Senator Muskie, perhaps the Act's primary author, emphasized the importance of uniformity in setting § 301 limitations....[which] required that EPA focu s on classes or cate gories of sources in formulating effluent limitations....

“The Conferees intend that the factors [fo r permitting standards]... be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limita tion to an individual point source within such a category or class.” 118 Cong. Rec. 33697 (1972), Leg.

the Water Pollution Control Act Amendments of 1972, 1452 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973).

145 Id ., 451 U.S. at 317, quoting House Debate on H.R. 11896, 1 Leg. Hist. 350-51, 359-60 (remarks of Reps. Blatnik and Jones). 1 Legislative History of the Water Pollution Control Act Amendments of 1972 350 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973) (Exh. 55).

146 EPA v. California State Water Resources Control Board , 426 U.S. 200, 202-03 (1976).

147 Riverkeeper I at 189, citing CPC Int’l v. Train , 515 F.2d 1032, 1034-35 (8th Cir. 1975).

148 Id. at 189-90, quoting CPC , 515 F.2d at 1035 and Bethlehem Steel Corp. v. EPA , 538 F.2d 513, 515 (2d Cir. 1976).

149 Weyerhaeuser , 590 F.2d at 1042

.26 Hist. 172. 150

The Senate Public Works Committee explained the Act’s requirement for standardized effluent limits and this “shift to end-of-pipe standards”: 151

The Committee adopted this substantial change ...because of the great difficulty associated with establishing reliable a nd enforceable precise effluent limitations on the basis of a given stream quality. Water quality standards, in addition to their deficiencies in relying on the assimila tive capacity of receiving waters, often

cannot be translated into effluent limitati ons – defendable in court tests, because of the imprecision of models for water quali ty and the effects of effluents in most

waters.....

With effluent limits, the Administrator can require the best control technology; he need not search for a precise link between pollution and water quality. 152

“Government regulators were therefore freed from the ‘need [to] search for a precise link between pollution and water quality in enforcing pollution controls.” 153 Moreover, the new approach to regulation also:

implemented changing views as to the relative rights of the public and of industrial polluters. Hithert o, the right of the polluter was pre-eminent, unless the damage caused by pollution could be proven. Henceforth, the right of the public to a clean environment would be pre-em inent, unless pollution treatment was impractical or unachievable. ... This new vi ew of relative rights was based in part

on the hard-nosed assessment of our scientific ignorance: “we know so little about the ultimate consequences of injection of new matter into water that (the Act requires) a presumption of pollution. . . .” 154

Under the 1972 Act:

a discharger’s performance is ... meas ured against strict technology-based effluent limitations [setting forth] specified levels of treatment to which it must conform ... This new approach reflected developing views on practicality and rights. Congress concluded that wa ter pollution seriously harmed the environment, and that although the cost of control would be heavy, the nation would benefit from controlling that pollution. Yet scientific uncertainties made it difficult to assess the benefits to particular bodies of receiving water

. 155

150 E. I. du Pont. v. Train, 430 U.S. 112, 130 (1977).

151 Id. at 163.

152 S. Rep. No. 414, 92d Cong., 1st Sess. 8 (1971) (Exh. 56).

153 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. , 204 F.3d 149, 151 (4th Cir. 2000), citing legislative history (internal citations omitted).

154 Weyerhaeuser v. Costle , 590 F.2d 1011, 1043 (D.C. Cir. 1978), citing legislative history (internal citations omitted).

155 Weyerhaeuser , 590 F.2d at 1042 (emphasis added).27 A significant objective of Congress was to st andardize permitting and to have EPA set a federal floor for environmental protection in order to avoid a “race to the bottom” by state regulators, which commonly occurred before 1972, when States competed to attract industries by relaxing control requirements:

[B]y eliminating the issue of the capacity of particular bodies of receiving water, Congress made nationwide uniformity in e ffluent regulation possible. Congress considered uniformity vital to free the states from the temptation of relaxing local limitations in order to woo or keep indus trial facilities. In addition, national uniformity made pollution clean-up possible without engaging in the divisive task of favoring some regions of the country over others. 156

In particular, the 1972 Act fundamentally restruct ured the law to rely in the first instance on the imposition of a series of categorically -determined technology-based standards to be promulgated by EPA that did not themselves de pend on site-specific showings of impact of particular activities on water qu ality. These technology-based st andards are designed to achieve the maximum reduction in activities that degrad ed water quality, by focusing on the extent to which certain technology was, depending on the t ype of source or pollutant, “practicable,” “achievable,” “available” or “demonstrated.” 157

Water quality standards were retained in the 1972 Act only as a supplementary mechanism that – except in the case of ther mal pollution under section 316(a), which is a “notable exception” – can only be used to set limitations stricter, but not more lenient, than technology-based limitations. 158 In 1977, Congress also observed th at its “one experiment in the Act with allowing consideration of receiving water capacity,” section 316(a), “had led to a regulatory breakdown. ‘Heat has thus become an unr egulated pollutant, clearly not the intent of the Congress. . . . That limited exemption has been turned into a gaping loophole.’” 159

Congress intended the CWA’s technology-based st andards to become more stringent over time. For permits issued before EPA had prom ulgated national standards, NPDES permit writers used their “best professional judgm ent” (BPJ) on a case-by-case basis. 160 Next, by 1977, discharges from existing facilities were to be br ought in line with the “best practicable control technology currently achievable” (BPT). 161 In the next phase, by 1989, most facilities

156 Weyerhaeuser, 590 F.2d at 1042; see also Natural Resources Defense Council, Inc. (“NRDC”) v. Train , 510 F.2d 692, 709-10 (D.C. Cir. 1974) (explaining that Congress intended uniform federal requirements to “safeguard against industrial pressures by establishing a uniform ‘minimal level of control imposed on all sources within a category or class’”).

157 See CWA sections 301(b), 304(b), 306; 33 U.S.C. §§ 1311(b), 1314(b), 1316.

158 See CWA section 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C); EPA v. California, 426 U.S. at 205 n. 12; Riverkeeper , 358 F.3d at 184 n. 10, 190; Weyerhaeuser , 590 F.2d at 1043.

159 Id . at 1044, citing legislative history.

160 33 U.S.C. § 1342(a)(1)(B). Even in BPJ cases, the cond itions are to reflect best practices in the industry rather

than local conditions. See Natural Resources Defense Council (“NRDC”) v. EPA , 863 F.2d 1420, 1425 (9th Cir. 1988).

161 BPT represents the “average of the best existing performance by plants ... within each industrial category. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon28 nationwide would be required to step up the leve l of pollution control to standards based on the “best available technology ec onomically achievable” (BAT). 162

Finally, for new facilities, Congr ess created the strictest standa rd in the Act, “new source performance standards,” which re quire the application of “best available demonstrated control technology” (BADT). 163 These standards are similar to the technology- based limitations established for existing sources , except that no cost-based variances are allowed during permitting. 164 Indeed, with the passage of time and the tightening of the standards, cost considerations were to be relegated to a mo re peripheral role in the selection of best technology. 165 Courts have consistently held that a central statutory objective of technology standards is to “predicate[] pollution contro l on the application of control technology on the plants themselves ” 166 to reduce pollution’s impacts “at their source.” 167

Consequently, the Clean Water Act’s technol ogy-based limitations were designed to force the iterative development of more protective technologies, and to ratchet down discharges and other impairments to water qualit y until they could be eliminated. 168 Congress and numerous federal courts have emphasized this “technology-forcing” ch aracter of the Act’s categorical standards within the context of th e section 301 BAT requirement. Indeed, the most critical aspect of BAT is that it compels polluting industries to meet ever more stringent limitations on the path towards comp lete elimination of water pollution. 169 BAT must be “at a minimum, established with reference to th e best performer in any industrial category.” 170 “The

BAT standard reflects the inte ntion of Congress to use the la test scientific research and technology in setting effluent li mits, pushing industries toward the goal of zero discharge as quickly as possible. In setting BAT, EPA uses not the average plant, bu t the optimally operating plant, the pilot plant which acts as a beacon to show what is possible.” 171

performance levels achieved by exemplary plants.” EPA v. National Crushed Stone Assoc. , 449 U.S. 64, 76 n.15 (1980).

162 33 U.S.C. § 1311(b)(2). BAT uses “the optimally operating plant, the pilot plant which acts as a beacon to show what is possible.” Kennecott v. EPA , 780 F.2d 445, 448 (4th Cir. 1985).

163 CWA § 306; 33 U.S.C. § 1316.

164 E.I. du Pont de Nemours & Co. v. Train , 430 U.S. 112, 137 (1977).

165 NRDC v. EPA , 822 F.2d 104, 110 (D.C. Cir. 1987); see also Riverkeeper I , 358 F.3d at 185 (EPA “should give decreasing weight to expense as facilities have time to plan ahead to meet tougher restrictions.”).

166 Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 623 (2d Cir. 1976) (emphasis added).

167 Bethlehem , 538 F.2d at 515.

168 The use of national, uniform standards also promotes the Congressional interest in “horizontal equity,” i.e. , that similar facilities be treated similarly under the CWA insofar as possible. NRDC v. EPA , 859 F.2d 156, 200 (D.C. Cir. 1988) (“[O]ne congressional purpose in this resp ect was clear: ... to maximi ze horizontal equity.”); American

Iron & Steel Inst. v. EPA , 526 F.2d 1027, 1044 (3d Cir. 1975) (“[T]he intent is that effluent limitations applicable to individual point sources be as uniform as possible.”).

169 NRDC v. EPA , 822 F.2d 104, 123 (D.C. Cir. 1987).

170 Conf. Rep. on S. 2770 (October 4, 1972), 1 Legislative History of the Federal Water Pollution Control Act of

1972 170 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973) (Exh. 57).

171 Kennecott v. EPA , 780 F.2d 445, 448 (4th Cir. 1985), citing legislative history 1 Legislative History of the Federal Water Pollution Control Act of 1972 , 798 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973) (Exh. 58).29 “[I]t is clear that Congress did not inte nd by that phrase [i.e ., BAT] to limit the technology to that which is widely in use. ... ‘I t will be sufficient, for the purpose of setting the

level of control under availabl e technology, that there be one operating facility which

demonstrates that the level can be achieved or th at there is sufficient information and data from a relevant pilot plant.’” 172 BAT must “utilize the late st technology to reach ‘t he greatest attainable

level ... which could be achieved. 173 As explained by the U.S. Cour t of Appeals for the District

of Columbia Circuit:

[T]he [Clean Water Act’s] regulatory sc heme is structured around a series of increasingly stringent tec hnology-based standards ... [T]he most salient characteristic of this statutory scheme, articulated time and again by its architects

and embedded in the statutor y language, is that it is technology-forcing.... The essential purpose of this series ofprogressively more demanding technologybased standards was not only to stimulate but to press development of new, more efficient and effective technologies. This policy is expressed as a statutory mandate, not simply as a goal. 174

Moreover, as the Supreme Court has recognized, the poten tial for economic consequences does not obviate the ma ndate for technology based standards:

Prior to the passage of the Act, Congress had before it a report ... [that] estimated that there would be 200 to 300 plant closings caused by the first set of pollution

limitations. Comments in the Senate debate were explicit: ‘There is no d oubt that we will suffer some disruptions in our economy because of these efforts; many marginal plants may be forced to close.’ 175

Much more recently, the Second Circuit recognized that technology standards are economically achievable even if they could re sult in the closure of certain facilities. 176 Referring to an 11 percent industry-wide risk of closure, the Court stated th at “the EPA – and courts – have

treated more substantial risks of closure as nonetheless supporting a finding of economic achievability.” 177 In Chemical Manufacturers , for example, the Fifth Circuit upheld a BAT standard where 14 percent of fac ilities would be forced to close. 178

172 American Iron & Steel Inst. v. EPA , 526 F.2d 1027, 1058 (3d Cir. 1975), quoting legislative history.

173 NRDC v. EPA , 863 F.2d 1420, 1431 (9th Cir. 1988). See also Texas Oil & Gas Ass’n v. United States EPA , 161 F.3d 923, 928 (5th Cir. 1998) (BAT limitations to be based on the performance of “the single best-performing plant.”) American Iron & Steel , 526 F.2d at 1061; National Ass’n of Metal Finishers v. EPA , 719 F.2d 624, 657, n. 51 (3d Cir. 1983); FMC Corp. v. Train , 539 F.2d 973, 983 (4th Cir. 1976); American Frozen Food Inst. v. EPA , 539 F.2d 107, 117 (D.C. Cir. 1976).

174 NRDC v. EPA , 822 F.2d 104, 123 (D.C. Cir. 1987) (emphasis added).

175 EPA v. National Crushed Stone , 449 U.S. 64, 80 (1980).

176 Waterkeeper , 399 F.3d at 518.

177 Id

.
178 Chem. Mfrs. , 870 F.2d at 202.30 3. As Part of the CWA’s Technology- Based Regime, Section 316(b) Requires EPA to Adopt Uniform, National, Categorical, Technology-Based and Technology-Forcing BTA Standards for Cooling Water Intake Structures.

CWA Section 316(b) represents the c onvergence of two impo rtant Congressional objectives: to minimize the massive water with drawals and fish kills caused by once-through cooling at power plants, and to do so through the imposition of national, categorical, technologybased standards that can be made stricter, but not weaker, as a result of si te-specific water quality assessments. As noted above, Section 316(b) was enacted as part of the sweeping 1972 amendments to the Clean Water Act. The plain language of this provision and an examination of the relevant statutory structur e compels the conclusion that EP A is required to adopt uniform, national, categorical, technology- based and technology-forcing BTA standards for cooling water

intake structures.

a. Section 316(b) Requires EPA to Establish National Standards.

With its use of a clear command – “shall” – Section 316(b) affords the Administrator of

EPA no discretion to decline to establish st andards for the intake of cooling water. 179 Indeed, EPA recognizes that Section 316(b) “ requires EPA to establish standards for cooling water

intake structures that reflect the ‘best technology available for minimizing adverse environmental impact.’” 180 Significantly, the term “standard” is used in the CWA only to refer to national standards, such as the “standards of performan ce” EPA issues as national categorical regulations for new facilities, 181 the “pretreatment standards” EPA issu es as national categorical regulations

for industrial facilities discharging toxic pollutants to sewer systems, 182 and the “standards of performance” EPA issues as national categorical regulations for marine sanitation devices. 183
Significantly, in the seminal 1977 case of E. I. du Pont de Nemours v. Train the Supreme Court relied, in part, on the fact th at “§ 316(b) refers to ‘[any] standard established pursuant to section 301’” in holding that Congress intended EPA to promulgate effluent limitations for existing sources by regulation (and not cas e-by-case) under section 301. 184 As the Second Circuit

confirmed in its review of EPA’ s Phase II cooling water intake rule, Section 316(b) constitutes a “statutory directive to set national standards.” 185

b. The National Standards Section 316(b) Requires Are a Form of Limitation Required by Sections 301 and 306.

Significantly, Congress has in Section 316( b) also directed EPA to utilize a particular Clean Water Act standard for implementing the BTA mandate: a “standard established pursuant

179 “‘Shall’ ... is the language of command.” Escoe v. Zerbst , 295 U.S. 490, 493 (1935).

180 76 Fed. Reg. at 22,196 (col. 2) (emphasis added).

181 CWA § 306; 33 U.S.C. § 1316.

182 CWA § 307(b); 33 U.S.C. § 1317(b). As the Courts have noted, these standards are to be uniform within an industrial category. See Chemical Mfrs. , 870 F.2d at 244, 253.

183 CWA § 312(b); 33 U.S.C. § 1322(b).

184 E. I. du Pont de Nemours v. Train , 430 U.S. 112, 133 n.24 (1977) (emphasis added).

185 Riverkeeper II

, 475 F.3d at 126.31 to [CWA sections 301 or 306] and applicable to a point source.” 186 Any argument that EPA may choose to regulate on an individu al, plant-by-plant basis thus is foreclosed not simply by Congress’s use of the term “sta ndard” in Section 316(b), but also by that section’s requirement that intake structures be regulated as part of the categorical “standards established pursuant to”

sections 301 and 306. 187

Further, the legislative hi story provides that “[s]ection 316 must be read with other

sections in the bill includ ing section 301 effluent limitati ons . . . and section 306, new

sources.” 188 Looking to the cross-referenced sec tions 301 and 306, and consistent with the Supreme Court’s conclusion in du Pont that the reference to “standa rds” in Section 316(b) means national categorical regulations , the courts have found that Section 316(b) requires EPA to establish BTA requirements as part of the sta ndards required by sections 301 and 306 and subject to the deadlines set forth in those sections. For example, before remanding EPA’s first BTA regulations in 1977, the Fourth Circuit concluded that:

[t]he regulations issued under § 316(b) are...closely related to the effluent limitations and new source performance st andards of §§ 301 and 306... It bears emphasis that § 316(b)... requires § 301 and § 306 standards to deal with cooling

water intake structures ....[The] regulations [are] issued at least in part under the same statutory sections, some of which limit intake structures, others, effluent discharges. 189

Significantly, that court noted the fundamental differences in the statutory scheme for effluent limitations and Section 316(b) standard s, as compared to water quality standards. 190 In that opinion, the Fourth Circui t also took note of “the aim of Congress to achieve nationally

uniform standards.” 191

Likewise, in rejecting a challe nge to EPA’s authority to regu late cooling water structures in NPDES permits, the Seventh Circuit held that the requirements of Section 316(b) “are to be implemented through standards estab lished pursuant to §§ 301 and 306.” 192 In entering the consent decree requiring EPA’s th ree-phase BTA rulemaking, the Sout hern District of New York held that “a Section 316(b) limitation should be considered a form of limitation under sections

301 and 306” and “the time limits in section 301 and 306 govern EPA’s duty to take action under Section 316(b).” 193 And in reviewing EPA’s Phase I Rule, the Second Circuit observed that Section 316(b)’s text:

186 CWA § 316(b).

187 Also telling is the fact that BTA requirements must be issued for the same facilities, i.e. , “point sources” to which categorical discharge limitations apply.

188 Riverkeeper I , 358 F.3d at 186, quoting statement of Rep. Clark.

189 Virginia Electric and Power Co mpany v. Costle (“VEPCO”), 566 F.2d 446, 450 (4th Cir. 1977); see also Cronin

v. Browner , 898 F.Supp. 1052, 1059 (S.D.N.Y. 1995).

190 VEPCO, 566 F.2d at 450, n.17 citing Bethlehem , 538 F.2d 513, and noting that unlike water quality standards, Section 316(b) regulators are “closely tied to § 301 or § 306.” Id.

191 Id. at 450, citing American Frozen Food Inst. v. EPA , 539 F.2d 107, 118 (D.C. Cir. 1976).

192 United States Steel Corp. v. Train , 556 F.2d 822, 850 (7th Cir. 1977).

193 Cronin , 898 F.Supp. at 1059.32 makes clear that administrative regulati ons under this section are promulgated “pursuant to” both sections 301 and 306 as well as Section 316(b). When the EPA “established” new source performance discharge “standard[ s]” “pursuant to section ... 306,” it ought then to have regulated new in take structures, because, by virtue of Section 316(b), section 306’s standards “shall require that ... cooling

water intake structures reflect the best technology available.” 194

Accordingly, EPA not only should have pr omulgated requirements for cooling water intake structures at the same time as it promul gated discharge requirements for the point sources using the intakes, in accordance with the spec ific deadlines set forth in sections 301 and 306, 195
— i.e., by 1989, at the latest — but EPA was also required to promul gate those requirements as a form of section 301 and 306 limitations as part of the same standards.

c. The National Standards Section 316(b) Requires Must Be Uniform and Categorical.

The fact that Section 316(b) standards are a form of lim itation under CWA sections 301

and 306 also reveals an essential feature about them: like the Act’s other technology-based standards, Section 316(b) sta ndards are to be implemented on a nationwide, uniform basis

whenever it is feasible to do so. 196 The industrial point source standards promulgated under sections 301 and 306 are “categorical” in nature. Th at is, each standard applies to a particular industrial category and, except in those limited circumstances where an individualized waiver or variance may be available, applie s uniformly to all facilities in the United States in that
category. 197 Since the requirements for cooling water in takes are required to be issued as part of these categorical standards, and are to be applic able to the same facilities to which categorical discharge limitations apply, it is therefore inescapable that these requirements are also to be categorical.

The integration of Section 316(b)’s “best technology available” (B TA) requirement to minimize adverse environmental impacts with th e effluent limitations und er sections 301 and 306 indicates Congress’s intent for national tech nology-based standards to control entrainment and impingement.

194 Riverkeeper I , 358 F.3d at 185-86 (emphasis in original).

195 For existing sources those deadlines were July 1, 1977 (33 U.S.C. § 1311(b)(1)(A)) and March 31, 1989 (33 U.S.C. § 1311(b)(2)(C) – (F)). For new sources, EPA was required to publish a list of at least 27 specified industry categories by January 17, 1973 (33 U.S.C. § 1316(b)(1)(A)), and to promulgate standards for each category within one year thereafter (33 U.S.C. § 1316(b)(1)(B)).

196 This does not mean, of course, that the substance of the Section 316(b) regulations is to be based on the substantive factors applicable to the section 306 standards or any of the various section 301 standards. The substance of the Section 316(b) standards is to be determined with reference to the language of Section 316(b) itself.

197 See 33 U.S.C. § 1311(b)(2)(A) (directing EPA to promulgate “effluent limitations for categories and classes of [existing] point sources”); 33 U.S.C. § 1316(b)(1)(B) (specifying that “after a category of sources is included in a list” as required by this section, EPA “shall propose and publish regulations establishing Federal standards of performance for new sources within such category ”) (emphases added). See generally E.I. du Pont de Nemours &

Co. v. Train , 430 U.S. 112, 126-29 (1977).33 Clearly, had it chosen to do so, Congress could have drafted Section 316(b) as solely a substantive requirement to be determined case-by-case by individual permit writers. For instance, Congress could simply have required that cooling water intake structures meet BTA,

with no reference to “standards” or to sections 301 and 306. Or Congress could have written Section 316(b) to refer in stead to CWA section 402, 198 since permit conditions are established
pursuant to that section, not section 301 or 306. The fact that Congress added these additional

mandates reflects a clear intent that the BTA re quirements be issued as categorical standards. 199

C. Regulatory Background : For Forty Years, Regulation on a Case-by-Case SiteSpecific Basis Has Caused Bureaucratic Pa ralysis, Litigation Quagmires, and the Perpetuation of the Unacceptable Status Quo, Contrary to Congress’s Intent.

Since 1972, in the absence of na tional regulations, cooling wa ter intake structures have been relegated on an ad hoc, case-by-case, site-specific basi s by individual permit writers, typically State agencies, exercising their “best profe ssional judgment.” 200 Permit proceedings have typically extended over many years – in some cases, more than a decade – despite the CWA’s requirements that NPDES permits be limited to five years duration 201 and that BAT regulations be reviewed and, if appr opriate, revised every five years. 202 Permit renewals are backlogged in virtually every state and hundreds of facilities operate on long-expired permits. When BTA decisions have been made, these site -specific proceedings ha ve resulted in uneven and conflicting rulings, the widespread use of infe rior technology, little ch ange in the status quo, and enormous, unnecessary aquatic mortality, all of which run contrary to the goals of the Clean

Water Act and the direct manda te of Section 316(b).

Industry, which has a critical st rategic advantage in these complex proceedings because of its superior resources, has taken advantage of biological and economic complexity and used litigation and delay tactics to avoid technology u pgrades. In particular , industry will inundate regulators with an overabundance of information, wh ich is highly time-consuming to evaluate, if it can be evaluated at all. As just one exam ple of which EPA is aware, in New Jersey, one plant’s permit renewal application comprise d 36 volumes, supported by 137 volumes of technical and reference materials, which took the state agency seve n years to review and finally
act upon. 203

198 33 U.S.C. § 1342.

199 Of course, there will be some circumstances in which uni form regulation is simply impracticable for a particular aspect of certain facilities’ operation. There may be technical or administrative impediments to uniform regulation, a lack of available data, or site-sp ecific conditions preventing any one set of technologies from being deemed the

“best available.” Under those circumstances, plant-by-plant permitting may be appropriate; otherwise, there would be no regulation at all. See generally NRDC v. Train , 510 F.2d 692, 710 (D.C. Cir. 1974); NRDC v. Costle , 568 F.2d 1369, 1379-80 (D.C. Cir. 1977). But the fact that EPA’s attempts to establish nationwide uniform standards may be thwarted on occasion by practical considerations does not give the agency carte blanche to refuse to set such standards for an entire category whenever it prefers anot her approach. It certainly does not allow EPA to countermand the congressional preference for uniform standards based on the agency’s own policy judgments.

200 See CWA § 402(a)(1)(B), 33 U.S.C. § 1342(a)(1)(B) (prior to national regulations, permits are case-by-case);

NRDC v. EPA , 863 F.2d 1420, 1424 (9th Cir. 1988).

201 CWA § 402(b)(1)(B), 33 U.S.C. § 1342(b)(1)(B).

202 CWA § 301(d), 33 U.S.C. § 1311(d)

203 67 Fed. Reg. at 17,153 (col.1).34 Industry then uses the enormous volumes of technical information in purported justification of a laundry list of baseless excuses and unsuppor ted arguments, such as the following:

1. Industry incorrectly contends that advers e environmental impact (AEI) must be established at each facility before Section 316(b) applies or BTA requirements can be imposed. 204

2. Industry further incorrectly contends that pe rmitting agencies must define AEI at some threshhold level of ecological damage for each individual facility ’s permit application. 205

3. Industry often contends, contrary to the obvious facts, that a particular power plant is not causing AEI despite entraining and imp inging large numbers of organisms. 206

4. Industry often incorrectly contends that AEI must be or should be measured at the population level. 207

5. Industry incorrectly argues that the methods us ed by fisheries scientis ts to evaluate the inpacts of proposed harvesting regimes shoul d be used to evaluate the harms of impingment and entrainment. 208

6. Industry often incorrectly contends that populations will not be affected by intake structures, despite the loss of large numbers of early life stages of fish, based on the misapplication of the ecologically base less concept of “surplus production.” 209

204 In New York, facility operators contest the existence of an adverse environmental impact as the first step in the state’s BTA case analysis process. See In the Matter of Athens Generating Company, LP , Interim Decision of the Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 4, (June 2, 2000), available at http://www.dec.ny.gov/hearings/10976.html (“Pursuant to CWA §316(b), a four step analysis determines whether ‘best technology available’ is being utilized by any particul ar facility” and the first step is determining “whether the facility's cooling water intake structure may result in adverse environmental impact.”)..

205 See, e.g. , July 11, 2000, letter from Utility Water Action Group Cooling Systems Committee Chair David Bailey to OMB Office of Information and Regul atory Affairs Deputy Administrator Don Arbuckle, at 2, attached to July 11, 2000 letter from Kristy A.N. Bulleit to EPA Office of Science and Technology Director Geoffrey Grubbs. See also Comments of the Utility Water Action Group on EPA’ s Proposed Section § 316(b) Rule for New Facilities and ICR No. 1973.01, November 9, 2000 (“UWAG Phase I Comment”) at 53-72.

206 See, e.g.

, In the Matter of Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC

, Interim Decision of the Assistant Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 16 (Aug. 13, 2008), available at http://www.dec.ny.gov/docs/legal_ protection_pdf/indianpointid.pdf (Exh. 59) (“Entergy maintains that staff may not presume adverse impacts exist, but rather must ‘affirmatively establish’ the existence of such impacts.”).

207 In pre-filed testimony, dated July 22, 2011, filed with the New York State DEC in regard to the NPDES permit for the Indian Point power plant, Entergy Nuclear argued that the plant’s adverse environmental impact, and the efficacy of Entergy’s proposed cylindri cal wedgewire screens, should be considered at the population level and applied age-one equivalent conversions to represent the advers e impacts of Indian Point on all life stages of fish as part of a single metric; see also UWAG Phase I Comment at 58-68.

208 UWAG Phase I Comment at 66.

209 For example, FirstEnergy has claimed that the massive fish kills at its Bayshore power plant in Ohio are not significant to the fish population as a whole. See Letter from Michael Jirousek, FirstEnergy Generation Corp. to Naajy S. Abdullah, Ohio EPA re FirstEnergy’s Comments on Renewal of NPDES Permit for Bay Shore Plant (May 26, 2010) (arguing that overall fish populations are not aff ected even though, “at face value” the fish kill data from35 7. Industry incorrectly argues that only certa in fish and shellfish species matter. 210

8. Industry often has the temerity to argue, inco rrectly, that massive fi sh kills and thermal discharges have a beneficial impact, for ex ample because some of the dead fish are nuisance species or some species prefer warmer water. 211

9. Industry makes the irrelevant argument that so me of the fish they entrained or impinged were dead before they were trapped by the intake structure. 212

10. Industry incorrectly argues that the percenta ge of fish being impinged and entrained is small when compared to overall stock size or what indsustry sometime s refers to as the “exploitable population.” 213

11. Industry incorrectly argues or suggests that ot her causes, for example, fishing or natural conditions, have a more significant impact on fish than intake structures. 214

12. Industry incorrectly argues that documented fi sh or shellfish populat ion declines in the vicnity of the plant are unrelated to th e operation of their intake structures. 215

13. Industry incorrectly argues that large numbe rs of fish survive impingement and/or

entrainment unharmed. 216

14. Industry contends, contrary to legal precedent, that it should get credit for restoration or

Bayshore suggest “that the number of organisms impacted in the cooling water intake is large.”) (Exh. 60); See also discussion of “surplus production” arguments in John Boreman, “Surplus Production, Compensation, and Impact Assessments of Power Plants,” 3 Envtl. Sci. & Pol’y 8445 (2000) [DCN 2-018A] (Exh. 61) and Super and Gordon, “Minimizing Adverse Environmental Impact: How Murky the Waters,” The Scientific World 229 (2002) (Exh. 62).

210 FirstEnergy has used this argument to attempt to publicly diminish the significance of its massive fish kills at the Bayshore power plant. See, e.g., Letter from Michael Jirousek, FirstEnergy Generation Corp. to Naajy S. Abdullah, Ohio EPA (May 26, 2010) (killing massi ve numbers of emerald shiners, sheephead and gizzard shad is less important because there are large populations of these species in La ke Erie) (Exh. 60).

211 This argument has been made by Midwest Generation with regard to the Crawford and Fisk plants in the Chicago waterway system in Illinois. Similarly, Dayton Power & Light has argued that once-through cooling at its Stuart plant in Ohio is beneficial to the environment because it supports fishing opportunities during the winter. See Letter from JoAnne Rau, Director, Environmental Safety and Management, Dayton Power and Light Company to Sean Ramach, US EPA Region 5 (Apr. 28, 2011) (providing DP&L’s comments on EPA’s rejection of the draft NPDES permit renewal for the J.M. Stua rt Electric Generating Station) (Exh . 63). Recently, EPA proposed to object to Ohio EPA’s renewal of St uart’s NPDES permit because Ohio EPA does not require compliance with thermal water quality standards and Dayton Power & Light has not provided support for a thermal variance. See id

.
212 FirstEnergy has emphasized such deaths in an attempt to diminish the significance of the massive fish kills at its Bayshore power plant.

213 See, e.g.

, In the Matter of Millstone Power Station , Before the Connecticut Department of Environmental Protection, Office of Adjudications, Application No. 1997 01876, Applicant’s Post Hearing Submittal (May 8, 2009) (Exh. 64).

214 Id . FirstEnergy has also tried to distr act the public from the massive fish kills at its Bayshore power plant by pointing to other sources of stress on the aquatic ecosystem in the surrounding area.

215 See, e.g.

, In the Matter of Millstone Power Station , Before the Connecticut Department of Environmental Protection, Office of Adjusications, Application No. 199701 876, Applicant’s Post Hearing Submittal (May 8, 2009) (Exh. 64).

216 See, In the Matter of Dynegy Northeast Generation, Inc., on behalf of Dynegy Danskammer LLC (Danskammer Generating Station) , DEC No.: 3-3346-00011/00002, SPDES No.: NY-0006262, Decision of the Deputy Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 17 – 18 (May 24, 2006) (Exh. 65) (Dynegy sought to have entrainment mortality figures for Danska mmer adjusted for claimed entrainment survival).36 mitigation measures. 217

15. Industry often incorrectly argues that th e operational baseline for comparing the performance of technologies should be calcula ted based on the wholly artificial concept that the plant operates at full capacity 24 hours a day, seven days a week, 365 days a year, and should receive “credit” for the diffe rence between fictional baseline and its normal operation, even in instances where th e gap between the fictional baseline and actual operation is 90 percent or more. 218

16. Industry incorrectly argues that the burden of pr oof is on state regulators or intervenors to prove that certain technologies are BTA, when, in fact, permittees must prove that they are entitled to a NPDES permit to discharge a nd to withdraw cooli ng water from waters

of the U.S. 219

17. Industry often incorrectly argues that thei r excessive thermal discharges should be ignored because of “mixing zones.” 220

18. Industry invariably argues that they are entitled to a variance under Clean Water Act Section 316(a) from technology-based standards for thermal discharges. 221

19. Industry incorrectly argues that states cannot or should not require closed-cycle cooling

217 See, e.g., Voices of the Wetlands v. State Water Resources Control Board , No. S160211, 2011 WL 3558007 (Cal. Supreme Ct. August 15, 2011) at * 7 (state approved $7 million Elkhorn Slough habitat restoration plan as mitigation for entrainment and impingement; parties disput ed restoration was a “substitute” for BTA and whether the BTA determination rested on the resoration plan as the basis for its BTA finding). For many years, restoration measures have been the centerpiece of Section 316(b) compliance for PSEG’s Salem nuclear plant in New Jersey, despite dubious claims that restoration is not linked to the BTA determination.

218 Mirant Bowline LLC has sought a full-flow baseline fo r its Bowline Point Generating Station in recent permit proceedings, despite the fact that, in 2010, the plant generated energy equal to less than 5% of its capacity. See In

the Matter of the Application of Mirant Bowline LLC (Mirant) For a State Pollution Discharge Elimination System Permit Renewal for the Bowline Point Generating Station (Units 1 and 2)

, DEC # 3-3922-00003/00003, SPDES #

NY-0008010 , Post-Issues Conference Brief by the Staff of the New York Stat e Department of Environmental Conservation at 12 (June 29, 2006) ( accepting the applicant’s ar gument that the Mirant Bowline plant should be entitled to a full-flow baseline) (Exh. 66); see also, In the Matter of Dynegy Northeast Generation, Inc., on behalf of Dynegy Danskammer LLC (Danskammer Generating Station) , DEC No.: 3-3346-00011/00002, SPDES No.: NY0006262, Decision of the Deputy Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 1 (May 24, 2006) (Exh. 65) (“[T]he baseline should be calculated using full-flow”). But see New York Independent System Operator, Gold Book; 2010 Load & Capacity Data at 42 (April 2010), available at: http://www.nyiso.com /public/webdocs /services/planning/planning_data_reference_documents/2010_GoldBook_Public_Final_033110.pdf (Mirant Bowline’s two generating units generated less than 150 GWh of energy in 2010, despite having a combined nameplate capacity of over 1 GW).

219 Dynegy has sought to reverse the burden of proof with respect to its Danskammer plant, while Entergy has sought to do the same in permit proceedings related to the Indian Point facility.

220 In the commenters’ experience, every power company attempts to make this argument, often by defining the mixing zone in a way that encompasses the entire thermal pl ume and failing to take an adequate look at the thermal discharges’ impacts on aquatic life. See, e.g. , Letter from Mark Sanza, Assistant Counsel, NY DEC to the Hon. Maria E. Villa and the Hon. Daniel P. O’Connell, Admi nistrative Law Judges, NY DEC (May 16, 2011) (Exh. 67) (NYS DEC stating letter stating that the Indian Point plant may use a “mixing zone” and that mixing zone will provide reasonable assurances of compliance with the wa ter quality standards – without analyzing impacts on the record of permitting proceeding); Letter from Elise N. Zo li, Attorney for Entergy, to the Hon. Maria E. Villa, Administrative Law Judge, NY DEC (May 17, 2011) (Exh. 68) (power plant operator points to temperature measures in the thermal plume, rather than analyzing impacts to fish, in support of modified mixing zone).

221 This argument is made by virtually every plant.37 under Section 316(b) if closed-cycle cooling is not required under Section 316(a), even though those two subsections operate independently. 222

20. Industry often incorrectly contends that comp liance with BTA standards is too expensive for the company. 223

21. Industry often incorrectly contends that comp liance with BTA standards is too expensive for ratepayers. 224

22. Industry often includes vague and absurdly excessive expenses in their estimates of compliance costs, such as overhead and indirect expenses. 225

23. Industry incorrectly argues that it is entitled to special treatment because electricity is an

“essential service.” 226

24. Industry incorrectly argues that it provides signif icant societal benefits that entitle it to special treatment. 227

25. Industry incorrectly argues that states lack the authority to require plants to curtail operations to meet BTA requirements or to sh ut down plants that ar e not complying with such requirements. 228

26. Industry incorrectly argues that tech nology retrofits will cause long outages. 229

27. Industry incorrectly argues that under Section 316(b) all issues have to be “balanced” against one another to arrive at a pareto optimal result. 230

222 See, e.g. , UWAG Phase I Comment at 16-20.

223 Companies (facilities) that have argued that complian ce is too expensive include FirstEnergy (Bayshore) and Dayton Power & Light (J.M. Stuart Generating Station). See Letter from Joseph M. Reidy, Attorney for Dayton Power & Light to John Sadzewicz, Ohio EPA (July 11, 1989) (comparing costs of cooling towers with other alternatives) (Exh. 69); see also Letter from William L. Patberg, Attorney for Dayton Power & Light to Paul Novak, Ohio EPA (Apr. 9, 2003) (arguing that cooling towers would cost a quarter of a billion dollars) (Exh. 70).

224 Companies (facilities) that have argued that complian ce is too expensive include: FirstEnergy (Bayshore) and Dayton Power & Light (Stuart).

225 For example, in estimating the costs of retrofittng closed-c ycle cooling at its E.F. Barrett plant in the South Shore Estuary on Long Island, New York, National Grid included a whopping $30 million for what it vaguely described as “management, “indirects,” “indetermi nates,” and “contingencies.” Alde n Research Laboratory and Burns Engineering Services, An Engineering & Cost Assessment of Retrofitting Closed-Cycle Cooling Technologies and

E.F. Barrett Power Station (September 2007) (Exh. 71).

226 Companies (facilities) claiming they should not be requi red to retrofit to closed-cycle cooling because they provide an “essential service” incl ude FirstEnergy (Bayshore) and Dayton Power & Light (Stuart).

227 Companies (facilities) claiming they they are entitled to special treatment because they provide social benefits and therefore should not be required to retrofit to closed -cycle cooling include FirstEnergy (Bayshore) and Dayton Power & Light (Stuart).

228 Companies (facilities) claiming that the regulator cannot require them to curtail operations to meet BTA requirements include FirstEnergy (Bayshore) and Dayton Power & Light (Stuart).

229 Companies (facilities) claiming that a retrofit would cause an overly long outage include: FirstEnergy (Bayshore); Dayton Power & Light (Stuart) ; and Entergy Nuclear (Indian Point).

230 In the case of Indian Point, Enterg y Nuclear has phrased this argument as a need to condition a 316(b) decision on other permitting issues such as adverse air impact s, unacceptable visual impacts, and SEQRA analysis38 28. Industry incorrectly argues that cooling syst em retrofits raise nuclear safety concerns. 231

29. Industry incorrectly argues there are insu rmountable energy concerns from outages, energy penalties, or pote ntial plant retirements. 232

30. Industry incorrectly argues there are insurm ountable concerns rela ting to fogging, steam plumes or mineral drift fr om closed-cycle cooling. 233

31. Industry incorrectly argues that closed-cycle cooling is noisy. 234

32. Industry incorrectly argues that cl osed-cycle cooling is unsightly. 235

33. Industry often incorrectly argues that there is insu fficient space for closed-cycle cooling on a given site. 236

34. Industry often incorrectly contends that closed-cycle cooling at a given site would have to be built to certain oversized specificati on (based on an overly conservative “approach temperature”), thereby consuming more sp ace and costing more than is reasonably

necessary. 237

35. Industry often vastly overstates the amount of time necessary to install closed-cycle cooling. 238

231 Dominion Nuclear Connecticut has even vigorously opposed conducting biological monitoring near the intake

structure at the Millstone Power Station on the dubious grounds that it would raise nuclear safety and security

concerns.

232 Companies (facilities) claiming insurmountable energy concerns include FirstEne rgy (Bayshore) and Dayton Power & Light (Stuart). See, e.g. , Ohio EPA, Response to comments document relating to FirstEnergy Bayshore plant, National Pollutant Discharge Elimination System (N PDES) permit (Oct. 2010) (Exh. 72) (FirstEnergy claims

that it cannot shut down its own f acility if a regulator requests it).

233 See

, e.g. , UWAG’s Brief Challenging EPA’s § 316(b) Rule for New Facilities, Riverkeeper, Inc. v. U.S. Environmental Protection Agency , No. 02-4005(L) (2d Cir.), July 2, 2003, at 22 (contending that “[w]et cooling towers also make fog, which can affect visibility and an some sites can deposit salt on trees, shrubs, and farmers’ fields”).

234 For example, ignoring the availability of ultra low noise fan options, National Grid has incorrectly contended that operation of closed-cycle cooling at its Glenwood power station in Hempstead Harbor in New York might

violate a town noise ordinance.

235 For example, Entergy Nuclear has submitted a visual assessment study concluding that the installation of cooling towers at Indian Point “would present a signifi cant aesthetic impact.” Saratoga Associates, Indian Point Energy Center Closed Cycle Cooling Conversion Feasibility Study Visual Assessment at 1 (June 1, 2009), available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/indptvisual1.pdf (Exh. 73).

236 See, eg.

, In the Matter of Dynegy Northeast Generation, Inc., on behalf of Dynegy Danskammer LLC (Danskammer Generating Station) , DEC No.: 3-3346-00011/00002, SPDES No.: NY-0006262, Decision of the Deputy Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 1 (May 24, 2006) (Exh. 65) (“[T]he proposed closed-cycle cooling system retrofit configurations will not fit on the site.”).

237 See the discussion of approach temperatures in the repo rt of Powers Engineering, a ttached as Appendix D. This position has been taken, for example, by National Grid in their evaluation of closed-cycle cooling at the E.F. Barrett. See, e.g.

, An Engineering & Cost Assessment of Retrofitting Cl osed-Cycle Cooling Technologies and E.F. Barrett

Power Station , Alden Research Laboratory and Burns Engineering Services, September 2007 (Exh. 71)

238 See, e.g ., Enercon Services, Inc., Engineering Feasibility and Costs of Conversion of Indian Point Units 2 and 3 to a closed-Loop Condenser Cooling Water Configuration, prepared for Entergy Nuclear Indian Point2, LLC, and Entergy Nuclear Indian Point 3, LLC at v , 43 (Feb. 12, 2010) (Exh. 74), available at http://www.dec.ny.gov/ docs/permits_ej_operations_pdf/c onvclosloop.pdf. The over-est imate of the time necessary to install closed-cycle cooling is directly related to the tendency of many facilities to argue that technology retrofits39 36. Industry often incorrectly cont ends that closed-cycle coo ling does not pass a cost-benefit

test. 239

37. Industry often incorrectly argues that the benefi ts of closed-cycle cooling must exceed the costs before it can be required. 240

38. Industry often incorrectly argues that onl y monetized benefits can be counted. 241

39. Industry often incorrently argues that a host of so-called “social costs” should be considered as an integral part of the Section 316(b) determination. 242

40. Industry often incorrectly argue s that retrofits should not be required at plants that purportedly have too little useful life remaining. 243

41. Industry often incorrectly argue s that retrofits should not be required at plants that purportedly have too much useful life remaining ( i.e. , plants that were recently repowered should be allowed to wait until the next repowering before retrofitting). 244

42. Industry incorrectly argues that if a Sec tion 316(b) determination was made a long time ago, it should not or cannot be revisited now. 245

will cause long outages.

239 Companies (facilities) claiming that closed-cycle cooling cannot pass a cost-benefit test include FirstEnergy (Bayshore) and Dayton Power & Light (Stuart). See, e.g., Letter from William L. Patberg, Attorney for Dayton Power & Light to Paul Novak, Ohio EPA (Apr. 9, 2003) (arguing that cooling towers would cost a quarter of a billion dollars but that “it is difficult to identify any e nvironmental benefit at all” to their use) (Exh. 70).

240 Cf . Brief of Petitioner Entergy Co rp. in Support of Vacatur and Remand of Final Rule Riverkeeper, Inc. v. United States Environmental Protection Agency , No. 04-6692-ag(L) (2d Cir.), April 18, 2006, at 47 (arguing that Section 316(b) regulations – and, presumably, site-speci fic BTA determinations – “should not have net social costs”).

241 See, e.g., Final Brief of Petitioners PSEG Fossil LLC and PSEG Nuclear LLC in Support of Vacatur and Remand of Portions of Final Rule, Riverkeeper, Inc. v. United States Environmental Protection Agency , No. 04- 6692-ag(L) (2d Cir.), April 17, 2006, at 26-31 (arguing that “EPA improperly required evaluation of ‘qualitative’ non-use benefits in site-sp ecific cost-benef it analyses”).

242 See, e.g., In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations Inc.’s CWA § 401 Application for Water Quality Certification, DEC Application Numbers: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) , Town of Cortlandt Petition for Party Status in Joint Adjudicatory Hearing for Water Quality Cer tification (July 9, 2010) at 18 (Exh. 75); In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations Inc.’s Joint Application for Water Quality Certification , DEC Application Numbers: 3-5522-00011/00030 (IP2) and 3-5522- 00105/00031 (IP3), Town of Cortlandt Memorandum of Law in Support of Cortlandt’s Petition for Party Status (Sept. 23, 2010) (Exh. 76) at 7-8, 14 (in support of power plant, town argued that for consideration of “nonmonetary costs” including alleged aesthetic, noise and tr affic impacts and alleged impacts to “social fabric and community character”).

243 In the case of Indian Point, Enterg y has framed this objection as a claim that closed cycle cooling could not be installed until near the end of its current Nuclear Regulatory Commission license period.

244 See, e.g. , Dynegy Moss Landing, LLC, State Water Resources Control Board Once-Through Cooling Water Policy Implementation Plan for the Moss Landing Power Plant at 13-14 (Apr. 1, 2011) (Exh. 77) (arguing that changes to the cooling system are unwarranted in light of recent, large capital investments); see also e-mail from John Dennis, LADWP to Jonathan Bishop, California State Water Resources Control Board (Jul. 22, 2010) (Exh. 78) (arguing that LADWP should be allowed additional tim e for compliance with California’s once-through cooling water policy in light of recent investments totaling over $600 million).

245 In some cases, the claim that 316b decisions were ma de decades ago and cannot be disturbed now is supported40 43. Industry often argues, contrary to the facts, that there is a cheaper alternative to closedcycle cooling that is almost as protective. 246

44. Industry often argues, contrary to the facts, there is an altern ative to closed-cycle cooling that can be implemented more quickly and will therefore be more protective when time is

factored in. 247

45. Industry incorrectly argues that the receiving water into which the plant discharges is not entitled to Clean Water Act protection. 248

46. Industry incorrectly argues that the receiving water into which the plant discharges is a commercial/industrial waterway such that water quality standards need not be as stringent as in other waterways. 249

Given the inability of under-f unded, under-staffed regulators at state agencies (or at EPA regional offices) – not to mention interested memb ers of the public – to engage with and respond to the panoply of largely spurious issues rais ed at every opportunity and supported with opaque technical submittals, it is no wonder that power pl ants have successfully resisted upgrading their

intake structures for decades. This applies to power plants regulated on a case-by-case basis by state agencies as well as those regulated direct ly by EPA.

For example, in the early 1970s the Atomic Energy Commission (AEC) determined that a

by state regulators. Both Illinois and Michigan have adop ted this unlawful interpretation of the Clean Water Act in multiple proceedings. See, e.g.

, In the Matter of the Natural Resources De fense Council (NRDC), the Sierra Club,

and the Great Lakes Environmental La w Center (GLELC) on the permit i ssued DTE Energy, Detroit Edison Company Harbor Beach Power Plant (DTE Energy) , Respondent Michigan Dep’t of Envtl. Quality’s Pre-Hearing Statement at 2-3 (Aug. 2, 2011) (a BTA permitting decision made in 1976 need not be revisited) (Exh. 79).

246 For example, FirstEnergy claims that installing reverse louvers and fine mesh screens at its Bayshore plant would represent a move to the best technology available. At Indian Point, Entergy claims that cylindrical wedgewire screens are an acceptable alte rnative to closed cycle cooling (despite EPA’s finding, in this proceeding, that wedgewire screens are not as effective as closed cy cle cooling). And at the Danskammer Generating Station, Dynegy Generation has argued that variable speed pumps and sonic deterrents are effective, at least when viewed against the backdrop calculations of a full-flow baseline. See In the Matter of Dynegy Northeast Generation, Inc., on behalf of Dynegy Danskammer LLC (Danskammer Generating Station) , DEC No.: 3-3346-00011/00002, SPDES No.: NY-0006262, Decision of the Deputy Commissioner of the N.Y. State Dep’t of Envtl. Conservation at 3 (May 24, 2006) (Exh. 65).

247 See Enercon Services, Inc., Evaluation of Alternative Intake Technologies at Indian Point Units 2 & 3, prepared for Entergy Nuclear Indian Point2, LLC, and Entergy Nuclear Indian Point 3, LLC at v (Feb. 12, 2010) (Exh. 80), available at: http://www.dec.ny.gov/docs/ permits_ej_operations_pdf/alttechrep.pdf ; see also id. at n.4 and Attachment 6 (arguing that cylindrical wedgewire screens should be pref erred to closed-cycle cooling at Indian Point because they can be implemented more quickly).

248 Dayton Power & Light, the owner of the Stuart plant in Ohio, claims that Three Mile Creek, into which the Stuart plant discharges, is a “discharge canal” and thus that water quality standards do not apply until the point at which the creek meets the Ohio River, several miles downstream of the discharge point. See, e.g. , Public Fact Sheet, Dayton Power & Light, “J.M. Stuart Station NPDES Permit Renewal, Sprigg Township, Ohio” (Spring 2011) (Exh. 81); see also Letter from JoAnne Rau, Director, Environmental Safety and Management, Dayton Power and Light Company to Sean Ramach, US EPA Region 5 (Apr. 28, 2011) (providing DP&L’s comments on EPA’s rejection of the draft NPDES permit renewal for the J.M. St uart Electric Generating Station) (Exh. 63).

249 In Clean Water Act proceedings related to setting wate r quality standards, Midwest Generation has argued that Chicago’s waters are less worthy of protection beca use they are used in co mmerce and by industry. See Midwest Generation, Appropriate Thermal Water Quality Standards for the Chicago Sanitary and Ship Canal and Lower Des

Plaines River (Mar. 22, 2007) (Exhibit 82).41 closed-cycle cooling system would be necessary at the Brunswick power plant in North Carolina to avoid significant environmental damage. 250 After years of battling, in 1980 EPA relented and

settled for lesser controls. 251 With only these lesser controls in place, the plant currently kills three to four billion fish annually. 252

Similarly, in the early 1970s, EPA ordered th ree Hudson River power plants to retrofit with closed-cycle cooling. 253 In the nearly 30 years since, th e cooling water withdrawals at these plants have engendered endless lawsuits, negotia tions, settlements and two environmental impact statements. Yet the plants st ill operate on long-e xpired permits, and the plants’ once through cooling systems continue to kill fish at le vels deemed “wholly unacceptable” by the state environmental agency. 254 The NPDES permit renewal for one of these plants, Indian Point, has been in adjuducation si nce 2004 – only now scheduled for hearing dates to commence in the fall of 2011, and expected to take place over a year or more (with appeals likely). 255 Just as with the Brunswick plant, in the 1970s the AEC had determ ined that due to the potential for long-term impact, closed-cycle cooling was necessary for In dian Point – yet delay tactics, bureaucratic processing failures, and litigation have resulted in decades of operation of once-through cooling, allowing the plant to kill over a billion fish of all life stages each year. 256

Notably, many of the plants whose negative environmental impacts spurred passage of the Clean Water Act 39 years ago are still operating toda y, their cooling water intake structures

in much the same condition now as then. In credibly enough, some of the oldest and most environmentally damaging plants in the country predate not just the 1972 Clean Water Act, but

the Federal Water Pollution Contro l Act of 1948 as well.

250 In the Matter of: Carolina Power & Light Company (Brunswick Steam Electric Plant) , USEPA Environmental Appeals Board, 1978 EPA App. LEXIS 4 (February 20, 1978) at p. 2 (Exh. 83).

251 James R. May & Maya K. van Rossum, The Quick and the Dead: Fish Entrainment, Entrapment, and the Implementation and Application of Section 316(b) of the Clean Water Act , 20 Vt. L. Rev. 373, 413 (1995). Internal

EPA memoranda indicate that the decision not to require closed-cycle cooling was driven by agency resource and political concerns. The Quick and the Dead , 20 Vt. L. Rev. at 414, fn. 280 (Exh. 18).

252 66 Fed. Reg. at 65,264 (col. 1).

253 Consolidated Edison Co. of New York v. New York State Dept. of Environmental Conservation , 726 F. Supp. 1404, 1407 (S.D.N.Y. 1989).

254 66 Fed. Reg. at 65,264 (cols. 1-2).

255 In the Matter of Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC For a State Pollution Discharge Elimination System Permit Renewal and Modification, DEC No. 3-5522-00011/00004, SPDES No,: NY-0004472.

256 See Letter from William R. Adriance, Chief Permit Administrato r, New York Stat e Department of Environmental Conservation, to Dara F. Gray, Entergy Nuclear Operations, (April 2, 2010) at 3 (available at http://www.dec.ny.gov/docs/permits _ej_operations_pdf/ipdenial4210.pdf ).42 II.

SUMMARY OF THE PROPOSED RULE

A. The Proposed Rule

The Proposed Rule applies to “existing” point sources that have a “Design Intake Flow” (DIF) of over 2 Million Gallons pe r day (MGD) with the capacity to withdraw more than 2 MGD

of water from waters of the U.S. and use at least 25 percent of the water they withdraw exclusively for cooling. 257 However, under the proposal, “w ater obtained from a public water system, reclaimed water from wastewater treatm ent facilities or desalination plants, treated effluent from a manufacturing faci lity, or cooling water that is used in a manufacturing process either before or after it is used for cooling as process water, is not considered cooling water.” 258

Facilities below the threshol ds are subject to permitting on a best professional judgment (BPJ) basis. 259 The three main components of the ru le are the entrainment provisions, the impingement standards, and standards applicable to what EPA calls “new units at existing

facilities.” 260 Under the Proposed Rule, a new unit at an existing facility must reduce entrainment mortality to a level commensurate w ith the performance of a closed-cycle cooling system. Existing units are far less strictly controlled. 261 Each of these components and other key provisions are summarized below.

1. Entrainment Provisions for Existi ng Facilities (Existing Units)

The proposed rule does not set any specific criter ia (numeric or otherwise) for the degree

of entrainment reduction that is reflective of the Best Techno logy Available at any class or classes of existing units. Instead, permitting authorities are to determine BTA on a case-by-case

basis. 262 Alternatively, existing facilities can c hoose to skip the case- by-case BTA analysis process and comply with the entrainment mortality standard that applies to new units at existing

facilities. 263

With respect to entrainment reduction, the onl y hard and fast “requirements” imposed on existing facilities are information provision requirem ents. These vary acco rding to the size of

257 See proposed 40 C.F.R. § 125.91(a), 76 Fed. Reg. at 22,280 (col. 3). Although the rule specifies that an intake pipe is only regulated if at least 25% of its flow is cooling water, EPA leaves permit writers discretion to determine that an intake from which less than 25% of the flow is used for cooling should nonetheless be subject to permitting.

See 76 Fed. Reg. at 22,193 (col. 2).

258 Proposed 40 C.F.R. § 125.92, 76 Fed. Reg. at 22,281 (col. 2).

259 See 76 Fed. Reg. at 22,174 (col. 3).

260 In the proposed rule, EPA draws a critical distinctio n between what it terms “existing facilities” and “new units at existing facilities.” But since every site addressed by th is rule is an existing facility, and since a facility can contain multiple electric generating units, some new and some not, it may be more accurate to restate EPA’s distinction in terms of existing and new units

.
261 See 76 Fed. Reg. at 22,196 (col. 1).

262 See proposed 40 C.F.R. § 125.94(c), 76 Fed. Reg. at 22,283 (col. 2).

263 See proposed 40 C.F.R. § 125.94(a)(2), 76 Fed. Reg. at 22,282 (col. 3).43 the facility. 264 Applicants are not required to reduce the number of fish and other organisms entrained unless, after reviewing the information provided, the Direct or determines that efforts to

reduce entrainment are warranted.

Facilities with an Actual Intake Flow (AIF) over 125 MGD, must conduct several entrainment-related studies and provide the results to the Director. 265 The Director’s BPJ-based permitting review for such facilities relies on these studies. 266 The primary studies are:

• Entrainment Characterization Study – a large facility must collect data on entrainment mortality for all species and life stages th at it has identified th rough a ‘source water baseline biological characterization study.’ 267 But note that as the Proposed Rule is written, the Director may exclude any sp ecies from the baseline study or from entrainment monitoring. 268 Thus, the study may not in f act report on all of the fish entrained. The study must be peer reviewed, wi th reviewers selected in consultation with the Director (who may also a ppoint additional reviewers). If any significant comments from the peer review process are not accepte d, the facility owner must explain why. “Peer reviewers must have appropriate qua lifications in biology, engineering, hydrology,

or other fields and their names and credenti als must be included in the peer review report.” 269

• Comprehensive Technical Feasib ility and Cost Evaluation Study – “an engineering study of the technical feasibility and incremental costs of candidate entrainment mortality control technologies.” 270 This study must be peer review ed under the same terms as the entrainment characterization study.

• Benefits Valuation Study – “an evaluation of the magnitude of water quality benefits, both
monetized and non-monetized , of the candidate entrainment mortality reduction technologies and operational measures evalua ted” in the technical feasibility study. 271
The study must include hard numbers for fish and shellfish mortality and must explain

how these averted losses and other water quality benefits are assigned a monetary

value. 272 The study must be peer reviewed under th e same terms as the other studies, but although the rule requires a monetary valuation of benefits, it does not require that the peer reviewers have expertis e in environmental economics. 273

264 See proposed 40 C.F.R. § 122.21(r)(1)(ii), 76 Fed. Reg. 22,275 (col. 3).

265 See proposed 40 C.F.R. § 122.21(r)(1)(ii)(B), 76 Fed. Reg. at 22,276 (col. 1)..

266 See proposed 40 C.F.R. § 125.94(a)(2), 76 Fed. Reg. at 22,282 (col. 3).

267 See proposed 40 C.F.R. § 122.21(r)(9), 76 Fed. Reg. at 22,277 (col. 3) (requiring that the plan address “all species and life stages identified under the requirements of paragraph (r)(4) [the source water baseline biological characterization study]”).

268 See 40 C.F.R. § 125.98(c)(6), 76 Fed. Reg. at 22,287 (col. 3) (discussed below).

269 Proposed 40 C.F.R. § 122.21(r)(9)(ii), 76 Fed. Reg. at 22,278 (col. 1).

270 Proposed 40 C.F.R. § 122.21(r)(10), 76 Fed. Reg. at 22,278 (col. 2).

271 See proposed 40 C.F.R. § 122.21(r)(11), 76 Fed. Reg. at 22,279 (col. 1) (emphasis added).

272 See proposed 40 C.F.R. § 122.21(r)(11)(i),(ii), 76 Fed. Reg. at 22,279 (col. 1).

273 See proposed 40 C.F.R. § 122.21(r)(11)(v), 76 Fed. Reg. at 22,279 (col. 1).44 • Non-water Quality and Other Environmental Impacts Study – a “discussion of the changes in non-water quality factors and othe r environmental impacts attributed to each technology and operational measure considered.” 274 As with the other entrainmentrelated studies, it also must be peer reviewed. 275

Unlike larger plants, the owners and operators of existing faci lities with an AIF less than 125 MGD need only provide a subset of the informa tion that larger facilities must provide, i.e.,

baseline information to the Director about th e cooling water intake system, the physical and biological characteristics of the waterbody, and their plans to reduce impingement mortality. 276

After receiving the information listed above, the Director must determine “the maximum reduction in entrainment mortality warranted” 277 at a particular facility. In setting this so-called BTA standard at an individual facility, the Dire ctor must consider at least nine factors:

(1) Numbers and types of organisms entrained; (2) Entrainment impacts on the waterbody; (3) Quantified and qualitative social benef its and costs, including ecological benefits and benefits to any threaten ed or endangered species; (4) Thermal discharge impacts; (5) Impacts on the reliability of ener gy delivery within the immediate area; (6) Impact of changes in particulate emi ssions or other pollutants associated with entrainment technologies; (7) Land availability, inasmuch as it re lates to the feasibility of entrainment technology; (8) Remaining useful plant life; and (9) Impacts on water consumption.

Based on these nine factors, the Director ma y reject an otherwise available technology “ if the social costs of compliance are not justified by the social benefits , or if there are adverse impacts that cannot be mitigated that the Director deems to be unacceptable.” 278 The Director must provide a written explanation of the decisi on. In that explanation, the Director must explain why any measures that perform bette r than the chosen option were rejected. 279

It is unclear when (if ever) the analysis process will result in an entrainment reduction determination by the Director or implementation of entrainment controls by the facilities. While

the rule sets deadlines for the owners and operators of existing units to provide the various

274 Proposed 40 C.F.R. § 122.21(r)(12), 76 Fed. Reg. at 22,279 (col. 1).

275 See proposed 40 C.F.R. § 122.21(r)(12)(x), 76 Fed. Reg. at 22,279 (col. 2).

276 See proposed 40 C.F.R. § 122.21(r)(2)(ii)(A),(B), 76 Fe d. Reg. at 22,276 (col. 1) (all existing facilities must submit the basic information required in parts (r)(2)-r(8 ), but only the largest facilities must comply with the entrainment information requiremen ts in parts (r)(9)-(r)(12)).

277 Proposed 40 C.F.R. § 125.94(c), 76 Fed. Reg. at 22,283 (col. 2).

278 Proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1) (emphasis added).

279 See proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. 22,288 (col. 1).45 categories of information demanded to the Director, 280 it does not set an ultimate deadline for entrainment compliance. 281

2. Entrainment Standards for “New Units at Existing Facilities.”

New units at existing facilities must meet en trainment standards based on the use of a closed-cycle cooling system. 282 The entrainment standard for new units at existing facilities parallels the two track standard for new facilities that EPA developed in the Phase I rule. Thus, the operator of a new unit can choose to reduce th e new unit’s intake of cooling water to equal that of a closed-cycle cooling sy stem under the same circumstances. 283 Alternatively, under the second compliance track, a higher intake flow is pe rmissible but the facility operator must reduce entrainment mortality at the new unit to at least 90 percent of what would have been achieved

had the new unit cut its AIF under the first track. 284 If a new unit opts to maintain a higher flow and plans to reduce mortality sufficiently to comp ensate, the Director must review the data the owner/operator submits to determine whether it will reduce impingement and entrainment mortality to 90 percent or greater of the reduc tion that could be achieved through closed-cycle cooling. 285 Finally, the Director also may exempt a new unit from compliance with either track

and establish “alternative requirements” if the cost of comp liance is “wholly out of proportion” to the costs considered by EPA during the rulemaking process. 286

3. Impingement Standards for Existing Fa cilities (Existing Units) and “New Units at Existing Facilities.”

The impingement standard offers covered facilities a choice. 287 One option allows the facility operator to choose to ensure that “for all lif e stages of fish that are collected or retained in

a 3 ⁄

8 inch sieve and held for a period of 24 to 48 hours to assess latent mortality,” the mortality rate does not exceed 12 percent on an annual average basis, or 31 percent on a monthly basis. 288
This option is based on “the use of modified tr aveling screens with a fi sh handling and return system.” 289 EPA concluded that this 12 percent/31 per cent level of mortality reduction is almost

280 See proposed 40 C.F.R. § 125.95(b), 76 Fed. Reg. at 22,284 (col. 1).

281 See proposed 40 C.F.R. § 125.93(b) (requiring compliance “with the applicable BTA standards for entrainment mortality in § 125.94(c) as soon as possible”), 76 Fed. Reg. at 22,282 (col. 2).

282 See proposed 40 C.F.R. §§ 125.93(c), 76 Fed. Reg. at 22,282 (col. 2); 125.94(a)(3), 76 Fed. Reg. at 22,282 (col. 3).

283 See proposed 40 C.F.R. § 125.94(d)(1), 76 Fed. Reg. at 22,283 (col. 2). In quantitative terms, this means demonstrating “total flow reductions approximating 97.5% for freshwater withdrawals and 94.9% for saltwater withdrawals.” 76 Fed. Reg. at 22,253 (col. 3). See also proposed 40 C.F.R. § 125.92, 76 Fed. Reg. at 22,281 (col. 2) (defining a closed-cycle recirculating system with reference to these values).

284 See proposed 40 C.F.R. § 125.94(d)(2), 76 Fed. Reg. at 22,283 (col. 3).

285 See id.

286 See proposed 40 C.F.R. § 125.94(d)(4), 76 Fed. Reg. at 22,283 (col. 3).

287 See proposed 40 C.F.R. § 125.94(b), 76 Fed. Reg. at 22,282 (col. 3).

288 See proposed 40 C.F.R. § 125.94(b)(1)(i), 76 Fed. Reg. at 22,282 (col. 3).

289 See 76 Fed. Reg. at 22,197 (col. 2).46 always achievable (i.e., 95 percent of the time) 290 through the use of modified traveling

screens. 291

Alternatively, the operator can choose to reduce the intake sy stem’s maximum velocity to 0.5 feet/second, which allows organisms to swim away from the intake. 292 EPA acknowledges this velocity reduction can reduce impingement (a nd thus impingement mort ality) to below four percent, which is more effective than the 12 percent mortality level achievable by traveling screen systems option. 293 But EPA chose to identify two different levels of impingement

reduction as the BTA level because “EPA’s r ecord shows modified traveling screens are available for all facilities, whereas reduced in take velocity may not be available at all

locations.” 294

Under both alternatives, operato rs must also meet ancillary protective requirements. First, any facility that does employ travelli ng screens or equivalent active screens must incorporate certain protective measures that ra ise the odds that impinged fish can be safely

returned to the source water. 295 Second, all facilities must ensu re that there is a means of escape for fish that may get “entrapped” (for example in a forebay) to be returned to the waterbody. 296

Third, in the case of facilities withdrawing from oceans or tidal waters, their performance in reducing shellfish impingement mortality must be at least as good as would be achieved through properly deployed and maintained barrier nets. 297

All covered facilities must meet the rule’s impingement mortality standard on a schedule set by the Director. 298 In all cases, the standard must be met within 8 years of the rule taking

290 EPA used “performance corresponding to the 95th percentile of the beta distribution” as the statistical measure

to determine the effectiveness of modified travelling screens. See 76 Fed. Reg. at 22,203 (col. 1).

291 See 76 Fed. Reg. at 22,203 (col. 1).

292 See proposed 40 C.F.R. § 125.94(b)(2), 76 Fed. Reg. at 22,283 (col. 1).

293 See 76 Fed. Reg. at 22,204 (col. 3) (“the performance of 0.5 feet per second intake velocity is slightly better than the selected technology. . . a design through-screen velocity of 0.5 feet per second would be protective of 96% of motile organisms.”).

294 See 76 Fed. Reg. at 22,197 (col. 2).

295 See proposed 40 C.F.R. § 125.94(b)(1 )(iii)(B) (for those facilities choosing th e 12/31 percent standard), 76 Fed. Reg. at 22,282 (col. 3); 40 C.F.R. § 12 5.94(b)(2)(v)(B) (for thos e facilities choosing the velocity limitation), 76 Fed. Reg. at 22,283 (col. 2).

296 See proposed 40 C.F.R. § 125.94(b)(1 )(iv)(B) (for those facilities choosing th e 12/31 percent standard), 76 Fed. Reg. at 22,283 (col. 1); 40 C.F.R. § 125.94(b)(2)(vi) (for thos e facilities choosing the velocity limitation), 76 Fed. Reg. at 22,283 (col. 2). EPA has informed us that the term “through-flow” in these sections is a typographical error

and should read “dual-flow.” See also 76 Fed. Reg. at 22,251 (col. 2); 76 Fed. Reg. at 22,275 (col. 1) (discussing “entrapment” provision).

297 See proposed 40 C.F.R. § 125.94(b)(1)( ii) (for those facilities choosing the 12/3 1 percent standard), 76 Fed. Reg. at 22,282 (col. 1); 40 C.F.R. § 125.94(b)(2)( iv) (for those facilities choosing the velocity limitation), 76 Fed. Reg. at 22,283 (col. 1).

298 See proposed 40 C.F.R. § 125.93(a),(c), 76 Fed. Reg. at 22,282 (col. 2); see also proposed 40 C.F.R. § 125.94(a)(1), 76 Fed. Reg. at 22,282 (col. 3).47 effect. 299 A facility’s owner or operator must su bmit an Impingement Mortality Reduction Plan to the Director that identifies the appro ach they will use to meet the BTA standards. 300

4. Other Provisions

a. Exclusion of Species/“Species of Concern”

On first reading, the language used to describe organisms protected by the rule appears comprehensive. For example, to be in compliance with the entrainment and impingement provisions means to achieve a ny applicable limitations “for all life stages of fish.” 301 Although the definition of “all life stages ” allows the Director to excl ude moribund and invasive species, 302
it still embraces virtually all fish and shellf ish that are actually entrained or impinged.

However, the rule also repeatedly refers to studying and monitoring impingement and entrainment of “species of con cern” without defining the term. 303 One possibility is that EPA intends the “species of concern” category to f unction as it does under th e Phase I rule: offering stronger protection to endangered, threatened, or otherwise unique ly valuable species that the rule’s uniform standards would provide. 304 This elevated degree of protection is entirely

consistent with the Clean Wate r Act’s goals and purposes.

But if read in concert with proposed Part 125.98( c)(6), the phrase could be interpreted to unlawfully permit the Director to exclude various species of fish from protection under the Clean Water Act and lower the standards for a particular facility below the BTA standards that EPA has identified. Part 125.98(c) addres ses the Director’s responsibilities with respect to species of concern. Under sub-paragraph 6, “[t]he Direct or may determine invasi ve species, naturally moribund species, and other specific species may be exclud ed from any monitoring, sampling, or study requirements of 40 CFR 122.21 and § 125.94.” 305 Read broadly, this would allow the Director to summarily exempt species from the source water baseline bi ological characterization

299 See id

.
300 See proposed 40 C.F.R. § 122.21(r)(1)(6), 76 Fed. Reg. at 22,277 (col. 1) (describing the plan). See also proposed 40 C.F.R. § 125.95(b), 76 Fed. Reg. at 22,284 (c ol. 1) (setting dates for submittal of the plan that vary by facility size).

301 Proposed 40 C.F.R. § 125.94(b)(1)(i), 76 Fed. Reg. at 22,282 (col. 3) (achieve impingement standards for all life stages of fish). See also 40 C.F.R. §§ 125.94(b) (1)(iii)(A), 76 Fed. Reg. at 22,282 (col. 2-3) (the owner of a facility must count as impinged “any fish” carried over in screen); 40 C.F.R. § 125.94(d)(2), 76 Fed. Reg. at 22,283 (col. 3) (a new unit at an existing facility complying with the tr ack II entrainment standard must demonstrate reduced entrainment of “all stages of fish and shellfish.”).

302 See proposed 40 C.F.R. § 125.92, 76 Fed. Reg. at 22,281 (col. 1).

303 See e.g. , proposed 40 C.F.R. 125.97(a)(4), 76 Fed. Reg. at 22,287 (col. 1) (Entrainment monitoring reports must “describe . . . the species of concern, the counts and percentage mortality of organisms sampled, and other information specified in the permit.”). See also 76 Fed. Reg. at 22,204 (col. 3) (EPA is considering, as an additional impingement requirement, that facilities opting to reduce intake velocity also show that “species of concern are adequately protected.”).

304 See 40 C.F.R. § 125.84(b)(4),(5) (re quiring new facilities to take extra measures above and beyond implementation of closed-cycle cooling if necessary to protect “species of concern to the Director.”).

305 Proposed 40 C.F.R. § 125.98(c)(6) , 76 Fed. Reg. at 22,287 (col. 3).48 study, from the impingement and entrainment reduction studies and plans, and from all monitoring efforts.

b. Monitoring Provisions

Proposed section 125.96(a) would require impingement monitoring “over a 24-hour period and no less than once per month when the cooling water intake structure is in operation.” 306 Yet, “EPA assumes the facility would monitor no less than once per week during primary periods of impingement as determined by the Director, and no less than biweekly during

all other times.” 307

c. Nuclear Safety

Proposed section 125.94(e), entitle d “Nuclear facilitie s” provides that “[i]f the owner or operator of a nuclear facility demonstrates to th e Director, upon the Director’s consultation with the Nuclear Regulatory Commission, that compliance with this subpa rt would result in a conflict with a safety requirement established by the Comm ission, the Director must make a site-specific determination of best technology available for minimizing adverse environmental impact that

would not result in a conflict with the Commission’s safety requirement.” 308

d. Exempted Offshore Facilities

The proposed rule exempts three categories of existing offshore point sources with cooling water intakes: offshore liquefied natu ral gas (LNG) plants, offshore seafood processing vessels, and offshore oil and gas facilities. 309 The preamble explains that EPA has studied these offshore facilities but is not aware of any tec hnologies beyond screens that avoid unacceptably altering the envelope or seaw orthiness of vessels and platforms in these categories. 310 Instead, these facilities are subject to case-by-case BPJ-based permitting. 311

5. Revisions to Phase I Rule

The proposed rule also responds to the Second Circuit’s decision in Riverkeeper I by removing from the Phase I new facility rule the restoration-based compliance alternative and the associated monitoring and demonstration requirem ents because EPA lacks the authority to allow compliance with Section 316(b) through restoration measures. 312 The proposed rule also proposes certain relativ ely minor corrections to the Phase I rule. 313

306 Proposed 40 C.F.R. § 125.96(a)(2), 76 Fed. Reg. at 22,286 (col. 2).

307 76 Fed. Reg. at 22,256 (col. 3)–22,257 (col. 1).

308 Proposed 40 C.F.R. § 125.94(3), 76 Fed. Reg. at 22,284 (col. 1).

309 See proposed 40 C.F.R. § 125.91(d), 76 Fed. Reg. at 22,281 (col. 1).

310 See 76 Fed. Reg. at 22,195 (col. 3).

311 See proposed 40 C.F.R. § 125.91(d), 76 Fed. Reg. at 22,281 (col. 1).

312 76 Fed. Reg. at 22,174 (col. 1); Fed. Reg at 22,183 (col. 2). In Riverkeeper I , the Second Circuit held that EPA exceeded its authority by allowing new facilities to comply with section 316(b) through restoration measures, and remanded that aspect of the rule to EPA. 358 F.3d at 191.

313 76 Fed. Reg. at 22,183 (col. 3).49 B. EPA’s Option Selection

Section 316(b) of the Clean Wa ter Act requires EPA to establish standards for cooling

water intake structures that reflect the “best technology available” to minimize adverse environmental impacts. 314 In determining the best technology available, EPA considered how well various technologies reduced entrainment and impingement. But EPA also evaluated these technologies against a number of other criteria. 315 EPA ultimately set what it considers a BTA standard based on technology that is capable of being implemented unive rsally. In so doing, EPA rejected the possibility of subcategorizing facilities according to the feasibility of control technologies, and rejected the possibility of se tting a standard based on a more effective model technology but allowing variances where th e model technology is infeasible.

1. In Considering Technological Option s, EPA Set a “Universal Availability” Requirement for BTA Candidate Technol ogies, then Rejected Closed-Cycle Systems and Velocity Limits Beca use EPA Found that They Are Not Univerally Capable of Being Implemented.

EPA considered a number of flow-reduci ng technologies, including closed-cycle
systems. 316 EPA also evaluated a number of exclusi on technologies, including different screens and nets, fish collection systems that safely re turn excluded fish to a waterbody, and slowing the intake velocity sufficiently for fi sh to escape the zone of danger. 317 From this review, EPA

selected three best performing technologies that merited furthe r study: traveling screens, barrier nets, and wet closed-cycle cooling. EPA also dete rmined that velocity re duction to 0.5 feet per second or less was a “candidate” best performing technology. 318

Ultimately, however, EPA proposed a BTA performance standard based only on technologies that are capable of being implemen ted by every facility, ev en if better performing technologies are available and feas ible at a subset of facilities. 319 For example, although EPA identified wet closed-cycle cooling “as a candidate best performing technology for both impingement mortality and entrainment mortality for new units at existing facilities,” 320 and although “EPA’s record shows numerous instances of existing facility retrofits to closedcycle,” 321 the agency did not propose closed-cycle cooling as the Best Technology Available because EPA asserts they are not capa ble of being implemented everywhere. 322 Instead, because

314 33 U.S.C. § 1326(b).

315 See 76 Fed. Reg. at 22,197 (col. 1) (EPA considered criteria including: technical availability and economic impacts on facilities of different size, age, type, and location; cost effectiveness; social costs and benefits; effects on energy production, availability, and reliability; and potential adverse environmental effects).

316 See 76 Fed. Reg. at 22,198 (col. 1) - 22,200 (col. 2).

317 See 76 Fed. Reg. at 22,200 (col. 2) - 22,202 (col. 3).

318 76 Fed. Reg. at 22,202 (col. 3) - 22,203 (col. 1).

319 See 76 Fed. Reg. at 22,203 (col. 3). See also 22,204 (col. 3).

320 76 Fed. Reg. at 22,203 (col. 3).

321 76 Fed. Reg. at 22,204 (col. 1).

322 See 76 Fed. Reg. at 22,203 (col. 3).50 EPA claims “closed-cycle cooling is not practically feasible in a number of circumstances,” and

because these circumstances “are not isolated or insignificant,” the agency decided “that it should not establish closed-cycle cooling as the presumptive BTA entrainment control.” 323 Thus, after deciding that the BTA standard must be modeled on a technology capable of being implemented everywhere, EPA determined that clos ed-cycle cooling did not meet that standard

and therefore could not be BTA.

Once it eliminated closed-cycle cooli ng and several other technologies from consideration, “EPA could iden tify no single technology that repr esented BTA [for entrainment] for all facilities” and opted for a case-by-case ap proach to regulating entrainment at existing

units. 324 The agency concluded that closed-c ycle technology could not be implemented everywhere for four reasons: loca l energy reliability; increased air pollution and the difficulty of obtaining air emissions permits for existing facili ties in non-attainment areas; land availability; and remaining useful plant life. 325

Uncertainty about the extent and likelihood of local relia bility impacts caused by extended downtime was purportedly an important consideration for EPA. 326 In the preamble, EPA states that it considered establishing a uniform entrainment rule, while giving permitting authorities flexibility to establish extended co mpliance timelines for utilities to coordinate extended outages and account for reliability conc erns. EPA states that it believes that this

“would have been consistent with EPA’s assessmen t that, at the national level (rather than local level), closed-cycle cooling would not pose material energy reliability consequences.” 327 But EPA claims that it lacks adequate information to establish whether such a flexible approach would sufficiently address local reliability issues. 328

Perceptions over increased ai r pollution also drove EPA’s finding that closed-cycle cooling cannot be installed everywhere. 329 EPA believes that for new units this is a lesser concern, because their system can be optimized fo r closed-cycle cooling from the design stage.

EPA also states that increased emissions coul d raise a permitting concern, particularly in nonattainment areas where a plant will need to identify offsets for its increased emissions. 330

And, although “EPA’s record indicated that th e majority of facilities have adequate available land for placement of cooling towers . . . , as many as 25 percent of facilities may have one or more constraints on available space that would limit retrofit of cooling towers for the entire facility or would result in increased compliance costs.” 331 Finally, EPA believes that

323 76 Fed. Reg. at 22,207 (col. 1).

324 76 Fed. Reg. at 22,197 (col. 2).

325 See 76 Fed. Reg. at 22,207 (col. 1).

326 See 76 Fed. Reg. at 22,208 (col. 3).

327 76 Fed. Reg. 22,208 (col. 3).

328 Id.

329 76 Fed. Reg. at 22,208 (col. 2).

330 See 76 Fed. Reg. at 22,209 (col. 1).

331 76 Fed. Reg. at 22,209 (col. 2-3).51 “many facilities are nearing the end of their useful life” and the cost s of a retrofit to such a plant may not justify the benefits. 332

Thus, EPA opted for a lowest common denom inator strategy – setting no uniform entrainment standard, and basing the impingement st andard on traveling screens because they are capable of being installed everywhere. EPA considered but rejected the possibility of subcategorizing “the industry” (actually, several industries) into groups of facilities for which

more effective flow reduction technologies are feasible. 333 And moreover, EPA did not establish a presumptive hierarchy of technologies th at must be applied if available.

Similarly, regarding impingement, while EP A acknowledges that ve locity reduction to 0.5 feet per second is available at many facilities and is more eff ective at reducing mortality than traveling screens, 334 it proposed an impingement standard that allows a facility to choose between reducing velocity and installing trave ling screens. And a lthough EPA found that wedgewire screens “would perform equally as well or better than seasonal deployment of barrier nets” to reduce the impingement of shellfish, EPA did not conduct a full analysis of wedgewire screens in the rulemaking, nor did it require their use where feasib le while allowing less effective technologies elsewhere. 335

2. The Four Regulatory Options EPA Considered

Developing the proposed rule, EPA considered four regulatory options. The proposed rule is EPA’s “Option 1”: a numerical impinge ment standard based on the use of modified traveling screens or velocity re ductions that applies to all un its; flow reduction commensurate with closed-cycle cooling only for new units at existing facilities; a nd a case-by-case decision making approach to entrainm ent for all existing units. 336 The other end of the spectrum is EPA’s Option 3, which calls for the same impingement standards as Option 1 and requires flow

reduction commensurate with closed -cycle cooling by all facilities. 337

Option 2 is a hybrid of Options 1 and 3. Like those options, it would set a uniform numerical impingement and entrai nment standard based on the use of modified traveling screens or velocity reductions for all units, but the cl osed-cycle-cooling -based entrainment standard would only be required of larger units – those wi th an actual intake flow of more than 125 MGD. For units with a smaller flow, Option 2 allows the same case-by-case decision making as Option 1. 338

332 See 76 Fed. Reg. at 22,210 (col. 1).

333 See 76 Fed. Reg. 22,204 (col. 1).

334 See 76 Fed. Reg. at 22,204 (col. 3) (“the performance of 0.5 feet per second intake velocity is slightly better than the selected technology. . . a design through-screen velocity of 0.5 feet per second would be protective of 96% of motile organisms.”).

335 See 76 Fed. Reg. at 22,203 (col. 3).

336 See 76 Fed. Reg. at 22,204 (col. 1).

337 See 76 Fed. Reg. at 22,206 (col. 2).

338 See 76 Fed. Reg. at 22,206 (col. 1).52 Finally, shortly before proposal, EPA consider ed a fourth possibility that is even less protective than Option 1. Opti on 4 would adopt a case-by-case approach to entrainment and apply the uniform impingement standard only to t hose facilities with a design intake flow greater

than 50 MGD. Facilities with a lower intake capacity would be s ubject to case-by-case permitting for both impingement and entrainment.

C. The Regulatory Impact Analysis

EPA considered the social costs of the propos ed rule and the distri bution of those costs across different parts of society (i.e . the “economic impact” of the rule). 339 EPA also considered the social benefits – first by listing the physical imp acts of the rule in term s of reduced mortality and other benefits, then by tryi ng to monetize these benefits.

EPA estimates the total social costs of th e proposed rule (Option 1) are $384 million. 340
If 100 percent of the rule’s costs for electricit y providers were borne by the ratepayers, this would amount to an average cost of $1.37 pe r year per household, or approximately 11.5 cents monthly. 341 By comparison, EPA estimates that the tota l social cost of the more environmentally protective Option 3 is $4,631 million, 342 or $1.47 monthly per household. 343 In the reverse, if 100 percent of the costs fell upon power companies “t he majority of parent entities will incur annualized costs of less than one percent of revenues regardless of the option” that EPA

selects. 344 Both of these 100-percent assumptions ar e highly conservative because, in reality, some (but not all) of the costs would be borne by power companies and some (but not all) would be borne by ratepayers.

EPA also estimated the rule’s impact on manufacturers by modeling a manufacturer’s after-tax cash flow, assuming, again highly conser vatively, that the business had to absorb 100 percent of the rule’s costs. 345 EPA found that no facilities w ould close and, even under Option 3, only 3.4 percent of facilitie s would experience even “moderate” cash flow impacts. 346

Finally, EPA estimated the administrative cost s that states and territories will incur in implementing the rule at existing facilities. “EPA estimates thatthe total annua lized cost for these activities will be $5.31 million for Op tion 1, $2.19 million for Option 2, $1.28 million for Option 3, and $4.06 million for Option 4.” 347 Thus, the highest administrative costs are imposed by the more site-specific, case-by-case options.

339 See 76 Fed. Reg. at 22,212 (col. 2)–22,237 (col. 1). EPA also conducted a variety of other analyses required by various acts of Congress, Executive Orders, and Agency initiatives.

340 See 76 Fed. Reg. at 22,218 (col. 2) (in 2009 dollars, discounted at 3%).

341 See 76 Fed. Reg. at 22,227 (col. 3).

342 See 76 Fed. Reg. at 22,218 (col. 2).

343 See 76 Fed. Reg. at 22,227 (col. 3) ($17.60 annually).

344 See 76 Fed. Reg. at 22,226 (col. 3).

345 See 76 Fed. Reg. at 22,220 (col. 2).

346 See 76 Fed. Reg. at 22,221 (col. 2).

347 See 76 Fed. Reg. at 22,270 (col. 3).53 In terms of the rule’s physical benefits (at least those that can be measured in direct fish and shellfish losses). Option 3 – uniform impi ngement and entrainment standards based on closed-cycle cooling – would save 1,000 times more fish than the proposed rule. While Option 1 may save 422 million fish, uniform standards wo uld save 407,922 million fish (as well as sea turtles and other endangered and threatened species). 348

Although the fish-protection benefits of Op tion 3 are 1000 times greater than Option 1, the agency could not perform a comparable and co mplete monetary analysis of the options. EPA found that “quantifying and monetiz ing reductions in I&E mortality losses due to the regulatory options is extremely challenging.” 349 Since many benefit cate gories were not properly monetized, EPA concluded that the monetized values “likely underestimate total benefits, challenging the Agency’s ability to base BTA decision making on the relationship of quantified

costs and benefits alone.” 350

Still, EPA concluded that the sum of the proposed rule’s be nefits under Option 1 justified its costs. The agency explaine d that cost-benefit analysis sh ould not ignore non-monetizable

benefits:

The assessment of benefits must take into account all benefits, including categories such as recreational, commerc ial and other use be nefits, benefits associated with reduced thermal discharg es, reduced losses to threatened and endangered species, altered food webs, nut rient cycling effects, and other nonuse benefits. Merely because ther e is no price tag on those benefits does not mean that they are not valuable. 351

Thus, although EPA’s estimate of the rule ’s monetized benefits (approximately $18 million per year at a 3 percent discount rate a nd $16 million per year at a 7 percent discount rate) is smaller than the agency’s estimate of its monetized costs (approximately $384 million per year at a 3 percent discount rate and $458 million per year at a 7 percent discount rate), 352 EPA concluded that Option 1 is cost-justified. 353 In the proposed rule and preamble, EPA does not, however, state whether the benefits of Options 2, 3, and 4 that it consider ed justify the costs.

D. The Rulemaking Process: Changes Made at the Direction of OMB.

Shortly before proposal, EPA submitted a draf t of the Proposed Rule to the Office of Information and Regulatory Affairs (OIRA) w ithin the Office of Management and Budget (OMB). 354 Pursuant to Executive Order 12,866, EPA has also released a redlined version of its

348 See 76 Fed. Reg. at 22,239-40 (Table VIII-2-Baseline I&E Mortality Losse s and Reductions for All In-Scope Facilities by Regulatory Option). Expressed in age-one eq uivalents (A1Es), Option 2 still saves three times as many fish as Option 1 (1982 million vs. 615 million A1Es).

349 76 Fed. Reg. at 22,246 (col. 3)-22,247 (col. 1).

350 76 Fed. Reg. at 22,247 (col. 2).

351 76 Fed. Reg. at 22,211 (col. 3).

352 2011 EBA at 12-3, Table 12-2.

353 76 Fed. Reg. at 22,206 (col. 3).

354 See Documentation of Changes Made During Executive Order 12866 OMB Review – Cooling Water Intakes54 proposed rule, revealing any amendments made to reflect OMB’s suggestions and

recommendations. 355 The key changes made at the sugge stion or recommendation of OMB are

as follows. 356

1. Changes Relating to EPA’s National Cost-Benefit Analysis

EPA strongly doubted that a meaningful nationa l cost-benefit analysis is possible, but OMB removed EPA’s reservations and expressions of doubt. EPA explained that it did not rely on “a nation-wide comparison of costs and benefits ” in proposing a rule be cause it felt that its

efforts to calculate the benefits of the rule were unsatisfactory. 357 Among other problems:

EPA’s calculation of reduced impingement and entrainment benefits of closedcycle cooling does not account for 97 percent of the direct use A1E [age 1 equivalents 358 ] of organisms entrained by coolin g water intakes. Moreover, the

monetized benefit values do not include the majority of the indirect use and

nonuse value of the reductions in I&E mortality, and completely exclude categories such as the non commercial por tion of impacts to threatened and

2040-AE95 NPRM , Document ID: EPA-HQ-OW-2008-0667-1295 (Exh. 84); see also Document Submitted to Initiate EO 12866 Review - Cooling Water Intakes 2040-AE95 NPRM FRN [DCN 10-6625A], Document ID: EPAHQ-OW-2008-0667-1295.1 (first attachment to Document 1295, EPA draft of the Proposed Rule sent to OMB) (Exh. 85).

355 EPA-HQ-OW-2008-0667-1295 2 with markup showing [DCN 10-6625B], EPA-HQ-OW-2008-0667-1407 [DCN 10-6625B], (Redline-strikeout documenting changes made during EO 12866 review, hereinafter “Redlined Version of Proposed Rule”) (Exh. 86).

356 On May 19, 2011, Riverkeeper submitted a request to OMB under the Freedom of Information Act (“FOIA”) asking that OIRA make available for inspection and co pying (1) all documents exchanged between OIRA and EPA during the Proposed Rule’s interagency review period, and (2) all documents received by OMB from any member of the public regarding the rulemaking. Given the exigencies of the public comment period on the Proposed Rule, which at that time was to close on July 19, 2011, Ri verkeeper asked OMB to make all responsive documents available as soon as possible. On May 20, 2011, OMB acknowledged Riverkeeper’s request but did not make any documents available. On June 28, 2011, Riverkeeper wrote to OMB again, repeating its document request and again emphasizing that time was of the esse nce in obtaining documents from OMB because the window to review and use those documents during the public comment would soon close. OMB did not respond to Riverkeeper’s second letter. Riverkeeper wrote a third time on July 18, 2011, reiterating its earlier requests and cautioning that unless OMB responded promptly, it would seek a court order compelling OMB to provide all records responsive to Riverkeeper’s May 19, 2011 FOIA request. OMB again failed to respond and is therefore in blatant violation of FOIA’s mandatory twenty-day response deadline set forth in 5 U.S.C. § 552(a)(6)(A)(i). Consequently, Riverkeeper sued OMB in federal court on July 25, 2011, seeking a court order compelling disclosure of the requested documents. To date, OMB has not responded to the complain t. Accordingly, the commenters reserve all rights with respect to this matter, including the right to submit comments and related documents to EPA after the close of the comment period in light of the failure of the United States to timely comply with the mandatory disclosure requirements under FOIA.

357 Redlined Version of Proposed Rule at 140-41.

358 EPA states that “The Equivalent Adult Model (EAM) is a method for converting organisms of different ages (life stages) into an equivalent number of individuals in any single age. For its 316(b) analyses, EPA standardized all I&E mortality losses into equivalent numbers of 1-year -old fish, a value termed age-1 equivalents (A1Es). This conversion allows losses to be compared among species, y ears, facilities, and regions.” 2001 EEBA at 3-2 (internal citation omitted).55 endangered species, the thermal discharge impacts to water quality, and species composition. 359

EPA thus concluded that, “[u]nder these circumst ances, a complete national weighing of costs and benefits is not pos sible at this time.” 360

However, OMB deleted EPA’s c oncerns and revised the preamble to read “. . . EPA has determined that the benefits of the proposed rule justify its costs. In addition, EPA has explained why consideration of costs and benefits is also appropriate in the site-specific permit setting when establishing entrainment controls.” 361 OMB also toned down the language that EPA used to describe the failings of the cost-benefit anal ysis exercise, removing phr ases like “thus, the universe of even ecosystem benefits that [the analysis] can quantify is small.” 362

2. Changes Relating to the Case-by-Ca se BTA Determination of Entrainment

Standards

a. EPA Sought to Require All Facilities to Use the “Best Performing Technology” So Long As its Costs Were Not Wholly Disproportionate

to its Benefits.

EPA strongly doubted the value and comprehens iveness of cost-benefit estimates where non-use, non-market values are so important. Th erefore, the agency expl ained that a Director “may” take estimates of social costs and benef its into account when conducting a site-specific BTA analysis, but should keep in mind that thes e estimates are very uncertain and far from comprehensive. 363 In particular EPA stressed that:

it is important that the Director recognize that even at [sic] when dealing with only a single site assessment the quantifie d and monetized estimates of benefits are more uncertain and less comprehensive than the estimates of costs. Important benefit effect categories will very lik ely not be able to be quantified and monetized . . . . As a result, benefit estimates are likely to underestimate the value that would accrue to society . . . .” 364

EPA’s strong doubts about the validity and mean ing of a facility’s cost-benefit analysis led the agency to restrict its use, even on a site-specific basis:

The results of the social cost-benefit analysis should be interpreted in the following way: The Director may not reje ct an otherwise ava ilable technology as

359 Redlined Version of Proposed Rule at 141.

360 Redlined Version of Proposed Rule at 141.

361 Redlined Version of Proposed Rule at 166; 76 Fed. Reg. at 22,211 (col. 3).

362 Redlined Version of Proposed Rule at 141.

363 Redlined Version of Proposed Rule at 343.

364 Redlined Version of Proposed Rule at 343.56 BTA for entrainment mortality requirements unless the social costs of compliance are wholly disproportionate to the social benefits. 365

EPA called its approach to BTA the “wholly disproportionate” test.” 366 Under the “wholly disproportionate” test, a BTA analysis begi ns with consideration of the best performing and available technology to reduce entrainment or impingement. Only if th e Director rejects the best performing technology because its costs were “wholly disproportionate” to the benefits it provided could the Director consider the next most effective technology. A nd “the test should be applied to the next most cos tly entrainment technology until th e social cost of the proposed entrainment technology no longer violates the wholly disproportionate rule.” 367

b. OMB Directed EPA to Abandon it s “Wholly Disproportionate” Testand Let States Reject Any Technology After an Open-Ended, MultiFactor Evaluation if its Costs “Are Not Justified” by its Benefits.

OMB rejected EPA’s “wholly disproportionate” test, thereby fundament ally rewriting the approach that state permit wr iters must follow in making BT A determinations. OMB also

deleted EPA’s comment that it has used the whol ly disproportionate test to interpret Section 316(b) since the 1970’s, and has issued a general counsel opinion supporting its use. 368 Thus, instead of requiring the Director to impose “the best controls whose cost is not wholly disproportionate to thei r associated benefits,” 369 the proposed rule allows a Director to reject any technology if the costs “are not justified” by the benefits. 370

EPA’s initial draft emphasized performance and environmental protection: the rule text stated that closed-cycle cooling is the best performing technology and should be used unless infeasible or disproportionately costly. A dditionally, EPA’s “wholly disproportionate rule” ensured that site-specific cost-benefit analyses – analyses that the agency’s staff cautioned would be uncertain and imprecise – were relegated to a secondary role of eliminating gross disparities

between costs and benefits.

After OMB’s revisions, the Director need only require the maximum reductions “warranted” by an open-ended consideration of costs and benefits, 371 and can reject any technology if he determines that its cost s “are not justified” by its benefits. 372 Thus, OMB proposes to allow Directors to engage in open-ende d consideration of multiple factors so long as the end result is “justified” in the agency’s opinion. OMB has significan tly altered the case-bycase analysis process, making it far more ambiguous, standardless and discretionary.

365 Redlined Version of Proposed Rule at 344.

366 Redlined Version of Proposed Rule at 344.

367 Redlined Version of Proposed Rule at 344.

368 See Redlined Version of Proposed Rule at 168-69.

369 Redlined Version of Proposed Rule at 169; see also p. 344, 450.

370 Proposed 40 C.F.R. § 125.98(e), 72 Fed. Reg. at 22,288 (col. 1).

371 Proposed 40 C.F.R. § 125.94(c), 76 Fed. Reg. at 22,283 (col. 2).

372 Proposed 40 C.F.R § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1).57 c. EPA Determined that Closed-C ycle Cooling Is the “Best Performing Technology,” but OMB Deleted this Conclusion.

EPA’s original preamble and rule text stat ed that “closed-cycle cooling is the best performing technology for reducing entrainment mort ality, but it may or may not be the BTA for

individual facilities in light of site-sp ecific considerations.” 373 Under EPA’s original case-bycase analysis as outlined above, because closed-c ycle cooling is the best performing technology, a Director would be required to determine whethe r it is available without considering cost (i.e. “otherwise available”) and, if so, the Director would require the use of closed-cycle cooling

unless “the social costs of co mpliance are wholly disproportiona te to the social benefits.” 374
Thus, EPA intended for closed-cycle cooli ng to be the default compliance technology

nationwide.

However, OMB deleted EPA’s conclusion th at closed-cycle cooling is the best performing technology, 375 and only left EPA’s statement th at it had evaluated closed-cycle cooling as a “ candidate best performing technology.” 376

d. OMB Also Deleted EPA’s Statem ent that Most Facilities Should Install Closed-Cycle Systems.

Having set the “wholly disproportionate” test and selected closed-cycle cooling as the “best performing technology,” EPA believed that its case-by-case analysis procedure would lead

to the same result as a national closed-c ycle cooling standard with variances:

In theory, EPA believes that site-speci fic determination of BTA entrainment mortality controls will result in the sa me reductions – will “minimize adverse environmental impact” – as a one-size-fi t-all requirement that included the variances that would be necessary to address the site-specific limitations on installation of closed-cycle. 377

OMB, once again, deleted this statement. OMB also deleted EPA’ s suggestion that many facilities would move to closed-cycle cooling:

In EPA’s view, entrainment mortality cont rols are appropriate in virtually all circumstances. The proposed decision not to establish uniform national

entrainment controls was not a decisi on that no controls are required. The rejection of one-size-fits all does not mean that no-size-fits-all. Rather, the best way to determine entrainment controls is on a site-by-site basis. . . . Thus, EPA expects that, under the proposed approach, there will be entrainment controls for

373 Redlined Version of Proposed Rule at 428, proposed 40 C.F.R. § 125.94(c).

374 Redlined Version of Proposed Rule at 344.

375 Redlined Version of Proposed Rule at 428, proposed 40 C.F.R. § 125.94(c).

376 76 Fed. Reg. at 22,203 (col. 3) (emphasis added).

377 Redlined Version of Proposed Rule at 138.58 most facilities and

. . . Directors will require many facilities to install closed-cycle cooling to address entrainment

. 378

e. Although OMB Put Cost-Benefit Anal ysis at the Heart of the DecisionMaking Process, it Deleted EPA’s Guidance on How to Perform CostBenefit Analysis.

After deleting EPA’s statements about the ve ry significant uncertainties involved in the cost-benefit analysis pr ocess, OMB made a highly ambiguous fo rm of cost-benefit analysis the linchpin of the rule. OMB would require mone tized cost-benefit analyses wherever possible. 379

But, at the same time, OMB deleted and weaken ed EPA’s guidance statements about how costbenefit analyses should be performed and reviewed.

For example, the rule calls for cost-benefit analyses that focus on the social costs of reducing impingement and entrainment, not the compliance costs to facilities. OMB deleted EPA’s explanation of the difference between soci al and facility costs of installation downtime and energy penalties, and how thes e costs should be cal culated to avoid overestimating the social

costs. 380

OMB also removed EPA’s guidance on discount ra tes. EPA had called for facilities to use a “social discount rate . . . reflecting soci ety’s rate of time pr eference as opposed to a facility’s cost of capital,” and sugge sted 3%, as per existing OMB guidance. 381 OMB replaced

this instruction with a general reference to “an appropriate discount rate.” 382

Finally, in the peer review process for the entrainment-related studies, EPA planned to require states to provide an explanati on “for any reviewer comments not accepted.” 383 OMB changed this, only requiring e xplanation for “significant” comments that are not accepted. 384

3. Changes Relating to Definition of New Units

a. OMB Determined that Replacements/Repowerings Are Not New Units and Deleted EPA’s Contrary Statements and Rationale.

EPA intended to treat replacements and re powerings as new units, but OMB excluded replacements and repowerings fr om the definition of new units. 385 Originally, EPA wrote that

378 Redlined Version of Proposed Rule at 159-160 (emphasis added).

379 See Redlined Version of Proposed Rule at 310 (OMB suggests that the benefits valuation study should include

monetization “to the exte nt appropriate.”).

380 See Redlined Version of Proposed Rule at 338-339.

381 See Redlined Version of Proposed Rule at 340.

382 See Redlined Version of Proposed Rule at 340, 76 Fed. Reg. 22,261 (col. 2).

383 Redlined Version of Proposed Rule at 401, 406, 408.

384 See proposed 40 C.F.R. §§ 122.21(r)(9),(1 0),(12), 76 Fed. Reg. at 22,277-79.

385 See Redlined Version of Proposed Rule at 92, 423 (revising 40 C.F.R. 125.92(r) and deleting 125.92(t), which defined repowering).59 a replacement unit or repowered unit, as distinct from constructing an additional unit, would also be treated differently th an existing units. Re powering, in contrast to simply constructing a new unit, is rebuilding and replacing the major components of an existing power plant. Repowering is done to improve efficiency, increase or optimize capacity, or minimize operating costs of the existing unit. For example, an electric generating facility may replace boilers, retrofit improved condenser designs, and ut ilize combined cycle or cogeneration in the repowered unit. The requirement s for new units are modeled after the requirements for a new facility in the Phase I rule.

EPA has adopted this approach for the fo llowing reasons. Almost two-thirds of the coal fired units are at least 30 years of age, and more than 30 percent of coal units are at least 50 years of age. As these units are retired and replaced based on individual facility circumstances, faciliti es have the ideal opportunity to design and construct the new units without many of the additional expenses associated with retrofitting an existing unit to closed-cycle. Thus, for example, the timing of retirement and replacement is within th e control of the fac ility and would be dictated strictly by the facility’s intern al requirements rather than linked to specific regulatory compliance deadlines. Further, the incremental downtime that may be associated with installing closed-cycle cooling may be avoided or minimized. In addition, the condensers can be configured for closed-cycle, reducing energy requirements, and high effi ciency cooling towers can be designed as part of the unit replacement, allowing for installation of smaller cooling towers. These advantages may not always be availa ble when retrofitting cooling towers at an existing unit. In consid eration of the fact that these repowering, replacement,

and additional unit construction decisions rest largely within the control of the individual facility, EPA decided that su bjecting these operations to the same national BTA requirements as those applicable to new facilities is warranted. 386

OMB also deleted EPA’s extensive and reas oned explanation of why replacements and repowerings should be considered new units, a nd why a retrofit to clos ed-cycle cooling is available for all replacements and repowerings. 387 EPA’s summary was trenchant:

In summary, EPA proposes that, because repowering, replacement, and additional

unit installation decisions can be accomplished feasibly and with lower costs than retrofitting an entire existing facility, it is appropriate to require the same entrainment mortality controls at new units as are applicable to new facilities per

the Phase I rule. New units are similar to new facilities, regardless of whether that unit is a green field construction, an additional unit, a replacement unit, or a repowered unit. Further, EPA considered that new units would be similar to new

facilities in terms of the us eful expected plant life a nd therefore found in general this would mean that closed-cycle coo ling would reduce entrainment mortality for

386 Redlined Version of Proposed Rule at 92-93.

387 See Redlined Version of Proposed Rule at 143-148.60 a longer time than for existing facilities as a whole. Finally, since new units are more likely to be located in areas in attainment for national ambient air quality standards, EPA finds that air permit issues are also minimized for new units. Thus, EPA’s analysis shows closed-cycle cooling would be available to such

facilities for the reasons described above and are economically achievable (see Section VII).

In developing this proposed rule, EPA c onsidered whether such requirements for

new units would serve as a disincentive to replace older units and determined that this would not be the case given closed-c ycle cooling’s comparable cost relative to once through cooling and its small cost as a percentage of overall costs at the new unit. The capital costs of closed-cycle cooling are comparable to the capital costs of once through cooli ng with only a modest incr ease in O&M expenses of the cooling water system. Furthermore, the costs usually comprise less than 1 percent of the total costs of a new unit. Recent experience indicates that the Phase I requirements are not a disincentiv e for new facility construction, as demonstrated by numerous instances wher e recently constructed facilities are using closed-cycle; see 66 FR 28856; also see 66 FR 28865.

Further, EPA’s analysis shows the genera ting units projected to close are most likely to do so because they are older, unreliable, less efficient, and therefore generally unprofitable. See Section VII for more information. In some instances,

insufficient water exists to continue to operate a facility with once-through cooling, or thermal discharge limitati ons preclude operation of once-through cooling; these facilities have employed c ooling towers, partial towers, and helper towers resulting in an increased reliability. 388

4. Changes Relating to Regulatory Options

a. OMB Revised the Discussion of Options 2 and 3, and Added a New Option 4.

OMB added Option 4 to the rule. 389 OMB also rewrote EPA’s analysis of Options 1, 2, and 3 to play up the benefits of Option 1 and de lete any favorable comments about Options 2 and 3. Accordingly, OMB deleted EPA’s statement that Option 3 is three times more effective than Option 1:

A comparison of the baseline and Opti on 1 adverse environmental impacts as expressed in age-1 equivalents shows that Option 1 reduces AEI by 31 percent. A similar comparison of the baseline to Option 3 shows that Option 3 reduces AEI by 92 percent.” 390

388 Redlined Version of Proposed Rule at 147-148.

389 See Redlined Version of Proposed Rule at 125 (removing references to three options and replacing with references to four options), see also Redlined Version p. 148-50 (adding a two page description of Option 4 to the preamble).

390 Redlined Version of Proposed Rule at 163.61 And in discussing EPA’s cost estimates for Op tion 2, EPA noted that its decision to allow Directors discretion to give facili ties several extra years to come into compliance with the rule may actually reduce compliance costs. OMB deleted this observation as well. 391

Most importantly, EPA concluded that none of the options it ev aluated would have significant effects on nationa l generating capacity. OMB highlighted the fact that Option 1 would have insignificant effects but deleted EPA’s very similar conclusion about Options 2 and 3. With respect to Option 1, OMB summarized EP A’s electricity market impact analysis by stating that “the early retirements among in-scope facilities under the pr oposed regulatory option have little impact at the level of na tional and regional electricity markets.” 392 But with respect to Option 2, OMB deleted EPA’s conclusion that al though more generating units would close, “a large share of the estimated closures occur in generating units that have very low capacity

utilization in the baseline” and onl y “3 percent of closure capacity occurs in generating units that otherwise appear to be reas onable economic contributors to electric power generation.” 393

Finally, OMB directed the addition of a su mmary of economic impacts which states: “EPA has considered the totality of these measur es of economic impacts in concluding that there are no significant economic impacts associated w ith Option 1 (the prefe rred option) or Option 4, while there are considerably greater economic impacts associ ated with Options 2 and 3.” 394

5. Changes to Other Provisions of the Rule

a. OMB Asked for Comment on the Possibility of Weaker Compliance

Timelines.

EPA set a firm eight year deadline for impinge ment compliance, even at facilities where the Director recognized that a pl an to install closed-cycle c ooling for entrainment compliance would extend beyond the eight year window. EP A recognized that keeping to a firm window might require some facilities to install impinge ment controls that become redundant when the closed-cycle cooling retrofit come s online, but EPA stated firmly that it “does not intend for the facility to do nothing to reduce [impingement] un til the technologies for [entrainment] have been implemented.” 395 OMB inserted a specific request for comments on this firm deadline.

b. OMB Removed Firm Monitoring Requirements and Replaced Them with Suggestions.

In the draft sent to OMB, EPA set firm impingement monitoring requirements that included weekly monitoring during peak periods of impingement and bi-weekly monitoring at other times. OMB changed this, writing that monitoring frequencies would be specified on a

391 See Redlined Version of Proposed Rule at 134-35.

392 Redlined Version of Proposed Rule at 240.

393 Redlined Version of Proposed Rule at 242.

394 Redlined Version of Proposed Rule at. 253.

395 Redlined Version of Proposed Rule at 291.62 case-by-case basis by the Director , but that EPA “assumes” that the weekly/bi-weekly schedule

would be common. 396 Similarly, EPA required facilities to st ratify collections so that they cover the entire daily cycle (and tidal cycles where appropriate). Again, OMB changed this from a hard requirement to an assumption. 397 OMB then added a request for comment “on whether EPA should specific [sic] minimum sampling freque ncies or leave this determination to the

Director.” 398

c. OMB Removed Extra Protection for Species of Concern.

EPA had originally required facility op erators who reduce intake velocity to 0.5

feet/second or less to document that this measur e adequately protected sp ecies of concern. OMB removed this requirement. 399

d. OMB Altered the Nuclear Safety Exception.

EPA created an exception to the entrainment mortality requirements for nuclear facilities if compliance “would result in a c onflict with a safety requireme nt established by the [Nuclear Regulatory] Commission.” 400 However, OMB deleted EPA’s clarifying statement that the exception was narrow and that “[t]ec hnical infeasibility, and not cost , is the only consideration in evaluation of a potential conflict with Commission safety requirements.” 401 OMB also broadened the exception such that it applies to the determination of BT A requirements generally, not just entrainment mortality. 402

e. OMB Created a New Exception for New Units at Existing Facilities with Costs “Wholly out of Proportion” to the Costs Considered by

EPA.

OMB added the “compliance costs wholly out of proportion” exemption to the rule’s entrainment requirements at § 125.94(d)(4). 403 EPA originally exempted only facilities that could show that installing closed-cycle cooli ng would result in signifi cant adverse impacts on local air quality. 404

396 See Redlined Version of Proposed Rule at 318, see also redlined version p. 442 (revisions to 40 C.F.R. §§ 125.96(b),(c)).

397 Redlined Version of Proposed Rule at 320.

398 Redlined Version of Proposed Rule at 322.

399 See Redlined Version of Proposed Rule at 397.

400 Redlined Version of Proposed Rule at 431, proposed 40 C.F.R. § 125.94(e), 72 Fed. Reg. at 22,284 (col. 1).

401 Redlined Version of Proposed Rule at 431.

402 Id

.
403 Redlined Version of Proposed Rule at 56.

404 See Redlined Version of Proposed Rule at 430.63 f. OMB Would Allow Facilities to Pr ove that, at Their Site, Entrainment Mortality Is Less Than 100 Percent.

OMB added a sentence to the preamble stating th at the Proposed Rule allows facilities to demonstrate that entrainment mortality is less than 100 percent at their site. 405

* * *

OMB thus took a weak and illegal rule and made it much weaker, more arbitrary and capricious, and much further from being compliant with the law.

405 See Redlined Version of Proposed Rule at 62.64 III.

THE PROPOSED RULE FALLS WELL SHORT OF THE

CLEAN WATER ACT’S STATUTORY MANDATE, IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION,

AND OTHERWISE NOT IN AC CORDANCE WITH LAW, IS

SIGNIFICANTLY WEAKER THAN EPA’S PRIOR 316(b) RULES, AND WILL NOT PRO TECT AQUATIC RESOURCES

UNLESS IT IS SIGNIFICANTLY STRENGTHENED

In introducing the Proposed Rule’s BTA determ ination, EPA stated that it “has decided not to re-propose requirements sim ilar to those of the final Phase II rule, but would adopt, for the reasons explained in [the] preamble, a new framework .” 406 Unfortunately, that “new” framework, while it differs from the Phase II rule in certain respects, is not new at all; instead, it largely codifies existing practice and thereby perpetuates the highly unfortunate vacuum of federal leadership on this issue that has persisted for four decad es since Congress first directed

EPA to take action. For the reas ons explained below, the Proposed Rule is both illegal and poor policy, worse in many ways than the Phase II fram ework (which was itself impermissibly weak, but at least purported to esta blish national categori cal standards), and will continue the longstanding bureaucratic paralysis that has left impingement and entrainment as one of the last remaining unaddressed problems that the 1972 CWA was designed to correct. 407

A. EPA’s Interpretation of Section 316(b) and its “Approach to BTA” Contradicts the Plain Meaning of the Act and Congress’s Clearly Expressed Intent.

Section IV.A. of the Preamble is entitled “EPA’s Approach to BTA” and sets forth EPA’s interpretation of Section 316(b) and the court decisions that interpre ted and applied that provision. 408 EPA’s interpretation is, how ever, deeply flawed and plai nly contradicts the statute in several important respects; many of the Propos ed Rule’s fundamental flaws spring directly from the Agency’s misundersta nding of its ow n authority.

1. When Making BTA Determinations Under Section 316(b) and Setting

Parameters for Permit Writers to Do So, EPA Does Not Have Authority to Eschew Congress’s Fundamental Inte nt for the CWA’s Technology-Based Regulatory Program.

EPA takes the mistaken view that the integrat ion of Section 316(b) with sections 301 and 306 is no more than an invitation from Congress to look to the factors considered in those other sections when establishing standards for Section 316(b), leaving the agency free to ignore any and all of the Congressional mandates on which the CWA’s technology-based program rests.

406 76 Fed. Reg. at 22,196 (col. 2) (emphasis added).

407 EPA states that “[f]ollowing promulgation of the 2004 Phase II rule,” the agency “became aware of certain elements of the 2004 rule that were particularly challe nging or time-consuming to implement.” 76 Fed. Reg. 22, 185 (col. 2). Unfortunately, the Proposed Rule does not improve upon the Phase II framework, but instead moves in the opposite direction, perpetuating the case-by-case approach, which will be impossible to implement.

408 76 Fed. Reg. at 22,196 (col. 2)–22,197 (col. 2).65 For example, referring to the Second Circuit’s decisions in Riverkeeper I and Riverkeeper II

, EPA states: “courts have held that, given Section 316(b)’s refe rence to sections 301 and 306 of the Act, EPA may look to the factors considered in those sections in establishing those standards for Section 316(b) standard setting.” 409 And referring to the Entergy decision, EPA states that “[t]he Supreme Court noted that, given the abse nce of any factors langua ge in Section 316(b),

EPA has more discretion in its standard setti ng under Section 316(b) th an under the effluent guidelines provisions.” 410 In fact, while EPA may look to th e factors set forth in sections 301 and 306 (and, by extension, section 304) in fo rmulating the substant ive content of BTA regulations, EPA is not free to di sregard the fundamental regulatory principles inherent in the

basic fabric which underlies a ll of the BAT, BPT, BCT, and BADT standards promulgated pursuant to those sections. Put slightly di fferently, while BTA requirements may impose a

different substantive standard than the effluent limitations – indeed, each type of effluent

limitation embodies a different substantive standa rd – BTA regulations must follow the same basic regulatory approach as Congress required for technology-based standards as a whole. 411

This conclusion is made inescapably clear in the court decisions to which EPA refers, namely Riverkeeper I and Riverkeeper II , which, while finding that EPA need not follow certain directives that are partic ular to one or another of the efflue nt limitations (such as section 306’s prohibition against variances), nevertheless held that BTA standards must adhere to Congress’s intent for the entire technology-ba sed program. For example, in Riverkeeper I the court began by explaining that “review [of] the entire statut ory scheme ... [and] its development assists in interpreting the narrow statutory provis ion [i.e., Section 316(b)] before us.” 412 Similarly, in Riverkeeper II , the court began by noting that its “interpretation of S ection 316(b) is informed by the two provisions it cross-refe rences, CWA sections 301 and 306.” 413

The Second Circuit in both of those cases we nt on to remand the restoration measures provisions in Phase I and Phase II rules, in pa rt, because “Congress rejected a regulatory approach that relies on water quality standards, [such as] ... focusing on fish populations and consequential environmental harm,” 414 and restoration measures “are inconsistent with Congress’s intent that the ‘design’ of intake structures be regulated direct ly, based on the best technology available, and without resort in the first instance to water quality measurements” 415
because they “resemble the pre-1972 approach to water pollution, which regulated point sources based on their effect on the surrounding water and allowed sources to discharge pollutants provided the discharge did not cause water quality to dip below an acceptable level.” 416 In Riverkeeper II the court also relied on the CWA’s “technology-forcing pr inciple” in its rejection

409 76 Fed. Reg. at 22,196 (col. 3).

410 76 Fed. Reg. at 22,196 (col. 3).

411 That regulatory approach is discussed above in Sections I.B.2 and I.B.3 of these comments.

412 Riverkeeper I, 358 F.3d at 184. EPA itself has stated that “CWA § 316(b), like other provisions of the statute, should be construed with Congress’ ambitious overarching statutory purposes in mind.” EPA, Clean Water Act NPDES Permitting Determinations for Thermal Discharge an d Cooling Water Intake from Brayton Point Station in
Somerset, MA , NPDES Permit No. MA 0003654, at 7-2 (July 22, 2002) (Exh. 87).

413 Riverkeeper II , 475 F.3d at 91.

414 Riverkeeper I, 358 F.3d 196.

415 Riverkeeper I , 358 F.3d at 190; see also Riverkeeper II , 475 F.3d at 108-09.

416 Riverkeeper I , 358 F.3d at 189, citing CPC Int'l, Inc. v. Train , 515 F.2d 1032, 1034-35 (8th Cir. 1975).66 of the Phase II restorat ion measures provision. 417 And that decision also remanded one of EPA’s site-specific compliance options because, as th e court explained, “Congress changed its approach in 1972, [and] ... [t]he Act now regulates discharg es from point sources rather than water quality.” 418

Nothing in the Supreme Court’s Entergy decision affected thos e holdings, as that court merely considered whether Congress had prohib ited cost-benefit analysis for BTA, despite requiring it for BPT. 419 Thus, that decision, which explicit ly left undisturbed all of the Second Circuit’s other holdings, 420 concerned the differences betw een the various technology-based standards rather than the regulator y approach common to all of them.

The fundamental precepts that apply to BTA re quirements as well as all of the effluent

limitations reflect the shift in regulatory approach embodied in the 1972 CWA amendments, including but not limited to (i ) Congress’s direction to EPA to establish uniform, national, categorical, technology-based and technology-forcing regulations, (ii) Congress’s intent to avoid lengthy indeterminate studies in the context of permitting, (iii) the focus on readily applied, readily monitored and readily enforced “end-of-p ipe” restrictions, and (iv) the assessment of consequential water quality effects only as a seco ndary task and only to make the requirements stricter than is dictated by t echnology considerations. As discussed herein, EPA has ignored all of those dictates in fashioning its current “approach to BTA” and “new framework.”

2. EPA’s Interpretation of the Statut ory Term “Available” Is Unlawful.

In one instance of this derogation of Congre ss’s intent and the pl ain language of the statute, EPA has applied an unlawful interpretati on of the term “available” in Section 316(b). Specifically, EPA proposes to rule out several candidate “best performing technologies” because they cannot be implemented at ev ery regulated facility in the Un ited States. Thus, EPA rejected closed-cycle cooling as BTA and avoided settin g a nationally uniform entrainment standard because it could not identify “a single technolog y that represented BTA for all facilities.” 421
Likewise, EPA rejected a velocity limit of 0.5 feet/second as the basis for a national impingement standard “because it is not available at all facilities.” 422

However, it is impermissible for EPA to reject any technology “because it is not available

at all facilities.” 423 The language, structure, and legisl ative history of the Clean Water Act indicate that Congress did not intend for EPA to consider whether a candidate technology is capable of being implemented universally wh en setting technology- based standards.

417 Riverkeeper II , 475 F.3d at 110.

418 Riverkeeper II , 475 F.3d at 114-15.

419 Entergy Corp. v. Riverkeeper, Inc ., 129 S. Ct. 1498, 1510 (2009).

420 Id. (“We of course express no view on the remaining bases for the Second Circuit’s remand which did not depend on the permissibility of cost-benefit analysis”).

421 76 Fed. Reg. at 22,197 (col. 2).

422 76 Fed. Reg. at 22,203 (col. 1).

423 76 Fed. Reg. at 22,203 (col. 1).67 3. EPA’s Understanding of its Cost -Benefit Authority is Incorrect.

As discussed above, the Clean Water Act also restricts (albeit does not deny entirely) the authority of EPA and delegated states to rely on cost-benefit considerations in establishing BTA standards under Section 316(b). Moreover, cost-benefit analys is is, at best, optional under Section 316(b). Indeed, EPA has not always employed cost-benefit analysis when regulating cooling water intake structures. The Phase I ru le, the Phase III rule for oil rigs, and the “new units” provisions in the Proposed Rule each se t Section 316(b) standards primarily based on technological and cost considera tions, but not a strict cost-ben efit approach, and none of them authorize permit writers to undertake cost-ben efit analyses on a site-specific basis. 424 In ConocoPhillips , the Fifth Circuit upheld EPA’s decision not to perform a co st-benefit analysis

for the Phase III rule. 425 Because cost-benefit analysis is optional, and, in the circumstances presented here, frustrates, rather than promotes the intent of the statute, we urge EPA not to rely

on cost-benefit considerations for this rule, and even more importantly, not to authorize permit

writers to consider cost-benefit consider ations on a site-specific basis.

Nevertheless, to the extent EPA chooses to e ngage in cost-benefit analysis for the final rule, as it did in developing the proposal, the agency’s understanding of its authority in this regard is also mistaken. In explaining its approach to BTA, EPA states that:

because the Supreme Court has conclude d that EPA may permissibly consider

costs and benefits in its BTA determin ation and E.O. 13563 directs EPA only to propose regulations based on a reasoned determ ination that the be nefits justify the costs, EPA has taken costs and benefits into account in this proposal. EPA has

concluded that the benefits of th e proposed option justify its costs. 426

That blithe statement, however, completely ignores the limitations that the CWA imposes, as Justice Breyer explained in Entergy and EPA has previously recognized. In particular, the statute restri cts EPA’s investigation of, and reliance upon, cost-benefit analysis in choosing a regulatory option, esta blishing nationwide performance standards and procedures for them to be applied in pe rmits. Justice Breyer explained that EPA is required to “describe environmental benefits in non-monetized terms,” “avoid lengthy formal cost-benefit proceedings and futile attempts at comprehensive monetization,” and “take account of Congress’ technology-forci ng objectives,” while merely using costbenefit analysis to “prevent results that are absurd or unr easonable in light of extreme

424 See e.g., 66 Fed. Reg. at 65,312 (cols. 2-3) (In responding to comment on why the agency did not rely on costbenefit considerations for the Phase I rule, EPA stated that “it is neither required nor prudent for EPA to develop empirical estimates of benefits where data limitations or ot her critical constraints preclude doing so in a credible and reliable manner”); ConocoPhillips Co. v. EPA, 612 F.3d 822, 829 (5th Cir. 2010) (“For new Phase III facilities, the EPA concluded that it was impossible to compare the costs incurred by individual facilities to the benefits of those facilities because those facilities have not yet been bu ilt. Instead, the EPA calculate d the expected costs of compliance under the national uniform standards and determined whether those costs would result in a barrier to entry for new operations and whether those costs could be reasonably borne by the industry.”) (internal footnotes omitted); see also 71 Fed. Reg. at 35,025-29, 35,034; proposed 40 C.F. R. § 125.94(d); 76 Fed. Reg. at 22,283 (cols. 2-3).

425 See ConocoPhillips Co. v. EPA , 612 F.3d at 842.

426 76 Fed. Reg. at 22,196 (col. 3).68 disparities between costs and benefits.” 427 This can be done through EPA’s traditional wholly disproportionate test, so long as th e analysis is a “lim ited” and “relatively subsidiary task” rather than a “primary” or “paramount” f actor, in light of the “difficulty of quantifying all the benefits of minimizing the adverse imp acts of cooling water intake structures” (to use the agency ’s own words), and so long as permit writers do not conduct a second cost-benefit analysis of any kind – wh ether the wholly dispr oportionate test or otherwise – in implementing the standards that EPA establishes.

For a much fuller description of the numerous fatal flaws in EPA’s cost-benefit analysis please see Section III.F., below, and Appendix A.

B. EPA Should and Must Establish a Nati onal Categorical Entrainment Standard Based on Closed-Cycle Cooling.

EPA should completely jettison the case-by- case site-specific approach to setting

entrainment standards and instead establish a na tional categorical entrainment standard based on closed-cycle cooling. EPA considered two such options: Option 3 whic h applies closed-cycle cooling to all facilities subject to the rule, and Option 2 wh ich has a 125 MGD actual intake flow threshold. Because Option 3 is superior in all respects, and will protect aquatic resources with minimal difficulty, EPA should select that opti on for the final rule in place of the proposed option, Option 1.

1. Option 1’s Entrainment Provisions Represent a Complete Abdication of EPA’s Responsibility to Minimize Adverse Environmental Impact.

Despite the widespread availability of closed -cycle cooling, EPA plans to require states

to set entrainment controls on a case-by-case basis. This violates a clear Congressi onal directive to adopt effective, national, and uniform standards. Further, it is arbitr ary and capricious of EPA to claim that it will fulfill its statutory duty to minimize the adverse environmental impact of cooling water intakes by delega ting BTA decisions to the states . Forty years of experience shows that states cannot make these permitting choi ces, and the states have told EPA as much. EPA’s Proposed Rule will therefore continue a woefully inadequate permitting process that has, for decades, allowed power plants to operate ac ross the country pursuant to long-expired or impermissibly weak permits.

Not only does the Proposed Rule unlawfully and arbitrarily create a case-by-case standard-setting regime, the partic ular case-by-case regime that EP A has designed is particularly egregious in its legal infirmity. It leaves state permitting authorities unfettered discretion in setting standards, effectively allowing industr y to self-regulate by pr oposing controls that overburdened state regulators lack the oversight capacity to meaningfully review.

427 Entergy , 129 S. Ct. at 1515; see also Entergy Corp. v. Riverkeeper, Inc. , 129 S. Ct. 1498, Transcript of Oral Argument (Dec. 2, 2008) (Exh. 88).69 a. EPA’s Failure to Set Uniform National Standards for Entrainment Violates the Plain Lang uage of Section 316(b) and Congress’s ClearlyExpressed Intent.

As explained above, the Clean Water Act requires EPA to adopt uniform, national, categorical, technology-based a nd technology-forcing BTA standard s for cooling water intake structures. Beyond the explicit dire ctive to establish “s tandards” in the text of Section 316(b), the fact that Section 316(b) standards are promulgated under CWA sections 301 and 306 also indicates that, like the Act’s othe r technology-based standa rds, Section 316(b) standards must be implemented on a nationwide, uniform basis.

Further, national technology-based standard s are consonant with several significant Congressional objectives that underpin the Clean Water Act: standardizing permitting procedures; limiting and revising the water-quality based approach to pollution control that rendered effective regulation impossible from 1948 to 1972; setting a federal floor for environmental protection in order to avoid a “race to the bottom” by state regulators; and promoting the Congressional intere st in “horizontal equity,” i.e. , that similar facilities be treated similarly under the CWA insofar as possible. Congress made it abundantly clear that, to meet these objectives, EPA must set uniform, nationa l, technology-based standards to minimize the adverse environmental impact of c ooling water intake structures.

The record shows that EPA can and should establish a uniform national standard based on the use of closed-cycle cooling technology: EP A determined that closed-cycle cooling is a best performing technology 428 and that numerous existing facilities had retrofitted to closedcycle. 429 EPA is concerned that “clo sed-cycle cooling is not practic ally feasible in a number of

circumstances” that “are not isolated or insignificant.” 430 But it is unlawful for the agency to

decide on this basis “that it s hould not establish closed-cycle cooling as the presumptive BTA

entrainment control.” 431 As noted above, Congress gave EP A the ability to subcategorize the regulated industry and/or to offer varian ces precisely to address such concerns. 432 And properly crafted variance provisions have been upheld under Section 316(b) before. 433

It is feasible to set uniform national sta ndards because closed-cycle cooling and other technologies are available to the i ndustry as a whole and EPA has th e ability to issue variances in

the rare case where it is technically infeasible. And, as out lined above, a case-by-case approach directly contradicts Congress’ general intent to end site-specific permitting under the Clean Water Act, and it contradicts C ongress’ specific inte nt to require uniform standards under Section 316(b).

Setting a uniform standard with a variance is also consistent with Congress’s most

428 See 76 Fed. Reg. at 22,203 (col. 3).

429 See 76 Fed. Reg. at 22,204 (col. 1).

430 76 Fed. Reg. at 22,207 (col. 1).

431 Id

.
432 See 33 U.S.C. § 1311(n) (fundamentally different factors variance).

433 See Riverkeeper I , 358 F.3d at 193-94.70 fundamental objective in passing the Clean Water Act: “to restor e and maintain the chemical, physical, and biological integr ity of the Nation’s waters.” 434 A uniform standard provides a strong baseline of environmental protection and helps maintain water quality by placing the burden of proof for any downward variance upon the polluter.

If EPA is concerned about setting a categoric al standard for the more than 1,200 facilities with cooling water intake structures affected by this rule, it must nevertheless undertake a thorough effort to craft national standards by l ooking at various thresh olds and options for subcategorizing. EPA cannot aggreg ate all industries usi ng intake structures and then default to a case-by-case regulatory approach, merely becau se it cannot find one te chnology that it believes all 1,200 facilities can install.

b. EPA Is Unlawfully Requiring State Permit Writers to Set Entrainment Controls Based In Large Part on Water Quality Considerations Rather than Technological Considerations.

Under EPA’s Proposed Rule, before a state ma y set entrainment contro ls at a particular site, the state permitting Director must consid er the entrainment imp acts on the waterbody, the ecological costs and benefits of the BTA candidate technologies (including to any threatened or endangered species), and the thermal discharg e impacts of the candidate BTA technologies. 435
Additionally, to determine the en vironmental impacts of entrainm ent on the waterbody, the state permitting authority must also review “source wa ter physical data” and “source water baseline biological characterization data.” 436 Only once the state has adequately evaluated these waterquality based concerns may it make a BTA determin ation. To the extent that this requires, or merely allows, states to analyze the consequen tial impact of its decision on the quality of the affected waters in the first instance, it is illegal because it is diametrically opposed to the approach to BTA envisioned by Congress and required under the Cl ean Water Act. As noted above, “Congress [intended] that the ‘design’ of in take structures be regu lated directly, based on the best technology available, and without reso rt in the first inst ance to water quality

measurements.” 437 It deliberately established the NPDES program to relieve permitting agencies of the need to conduct costly, lengthy, and inde terminate ecological studies to issue permits. Improving water quality is, of course, the goal of the Clean Water Act and its implementing regulations, but charactering on a site-specific basis the full ex tent of consequential damage caused to the waterbody by each intake structure’ s fish kills is not a prerequisite to the imposition of technological controls.

The principled use of technology-based standards and rejection of the pre-existing waterquality based analyses applies equally in the Section 316(b) context as it does to effluent

434 33 U.S.C. § 1251(a).

435 See proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1).

436 See proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1) (“The Director must establish case-by-case BTA standards for entrainment mortality for any facility subject to such requirements after reviewing the information submitted under 40 CFR 122.21(r)”); see also proposed 40 C.F.R. §§ 122.21(r)(2), (r)(4), 76 Fed. Reg. at 22,276 (col. 1-2) (requiring facilities to submit source water physical data and source water biological characterization data).

437 Riverkeeper I, 358 F.3d at 190.71 limitations. The Second Circuit explained in Riverkeeper I and again in Riverkeeper II that “Congress rejected a regulatory approach that relies on water quality standards, [such as] ... focusing on fish populations and consequential environmental harm.” 438 Congress retained water quality standards in the Clean Water Act only as a supplementary mechanism that can be used to set limitations stricter, but not more le nient, than technology-based limitations. 439 EPA is permitted to give consideration to the environmental benefits of its regulations at the national

level. 440 But Congress forbade EPA from using site-s pecific water quality considerations as the basis for case-by-case standard setting or as th e basis to weaken requirements that are based on technology considerations; yet that is precisely what EPA demands of state permitting authorities today.

The Clean Water Act directs EPA to set cate gorical standards on th e basis of the best technology available to minimize adverse environmen tal impact without resp ect to water quality (except that water quality can be considered where necessary to make the requirements stricter). And as the next section points out, it is precisely EPA’s failure to set such categorical standards under Section 316(b) that, since the 1970’s, has paralyzed state decision making. For EPA to abdicate its responsibility to set national technol ogy-based standards and instead order states to set water quality-based standards not only violat es the law but marks a return to the pre-1972 regulatory approach that C ongress sought to eliminate.

c. EPA’s Decision to Require State Permit Writers to Set Entrainment Controls on a Case-by-Case Basis Is Arbitrary and Capricious and Will Perpetuate Bureaucratic Paralysis.

EPA knows full well that the states will not meet the case-by-case decision making and cost-benefit analysis obligations th at this Proposed Rule imposes. EPA thus abuses its discretion by claiming that this empty delegation of respons ibility – which simply continues the current, failed site-specific permitting system – is adequa te to meet the agency’s obligation to set BTA

standards that minimize adverse environmental impact. EPA’s rule will not minimize adverse environmental impacts, and it will do little or nothing to change the status quo.

(1) States Cannot Complete Case-By-Case BTA Determinations.

EPA’s conclusions that (1) requiring state permitting authorities to set entrainment controls on a site-specific basi s “represents the best technolog y available for minimizing the adverse environmental impacts associated with intake structures” 441 and that (2) “[s]ite specific proceedings are the appropriate forum for weighi ng all relevant considerations in establishing

438 Riverkeeper I , 358 F.3d at 196; see Riverkeeper II , 475 F.3d at 114 (“[I]n enac ting the CWA, Congress rejected regulation by reference to water quality standards.”).

439 EPA v. California, 426 U.S. at 205 n. 12; Riverkeeper , 358 F.3d at 185 n. 10, 190; Weyerhaeuser , 590 F.2d at

1043.

440 Entergy , 129 S.Ct. at 1505-1506 (in setting uniform, national standards under Section 316(b), EPA may

consider the benefits that derive from a “reduction in adverse environmental im pacts” and the costs of achieving that reduction).

441 76 Fed. Reg. at 22,210 (col. 2).72 BTA entrainment mortality controls” 442 are arbitrary, capricious, and an abuse of the agency’s

discretion under the Clean Water Act. The Proposed Rule woul d require plant operators to submit, and permit writers to evalua te, at least the following studies:

• Source Water Physical Data;

• Cooling Water Intake Structure Data;

• Source Water Baseline Biologi cal Characterization Data;

• Cooling Water System Data;

• Proposed Impingement Mortality Reduction Plan;

• Performance Studies;

• Operational Status;

• Entrainment Characterization Study;

• Comprehensive Technical Feasibil ity and Cost Evaluation Study;

• Benefits Valuation Study; and

• Non-Water Quality Impacts Assessment 443

However, experience shows that state permitting authorities cannot meaningfully review studies

of this sort and cannot make site specific BTA determinations at all, much less in the timely manner required under the Clean Water Act.

Since 1972, site-specific proceedings have re sulted in uneven and conflicting rulings, the widespread use of inferior tec hnology, as well as enormous, unnece ssary aquatic mo rtality, all of which run contrary to the goals of the Clean Water Act and the di rect mandate of Section 316(b). On December 13, 1976, EPA issued its first cool ing water intake regulation to implement Section 316(b). Industry filed suit and, wit hout reviewing its merits, the Fourth Circuit remanded the regulation because of procedural defects. 444 EPA subsequently withdrew the regulation, and for more than two decades failed to propose or adopt any new cooling water intake regulations.

In the absence of national regulations, cooli ng water intake standards have been relegated

to ad hoc determinations by individual permit writers, typically state agencies, exercising “best professional judgment.” 445 EPA’s own assessment is that these case-by-case, site-specific Section 316(b) proceedings, which involve a comp lex assessment of the local marine ecosystem and fishery population dynamics to determine best technology available, impose a significant burden on permitting agencies:

The historical case-by-case approach requi res significant resources on the part of the regulatory authorities that must im plement Section 316(b) requirements. ...

442 76 Fed. Reg. at 22,207 (col. 1).

443 See e.g., proposed amended 40 C.F.R. 122.21(r); 76 Fed. Reg. 22,275 (col. 1)-22,279 (col. 2).

444 Appalachian Power Co. v. Train, 566 F.2d 451, 459 (4th Cir. 1977).

445 66 Fed. Reg. at 65,262 (cols. 1-2). Where EPA has not yet promulgated national technology-based standards for a category of point sources, the permit writer must use, on a case-by-case basis, his or her best professional judgment to impose such conditions as he or she determines are necessary to carry out the provisions of the Clean Water Act. 33 U.S.C. § 1342(a)(1)(B); NRDC v. EPA , 863 F.2d 1420, 1424 (9th Cir. 1988).73 [E]ach regulated facility must devel op, submit, and refine [multi-year, multidisciplinary] studies that characterize or estimate potential a dverse environmental impact. ... [G]iven the iterative nature of the assessment process, industry as well as EPA regional and State regulatory authorities must expend significant resources assessing study plans and methods for characterizing the environmental impact occurring at each facility and evaluating those data to determine what

constitutes BTA for eac h specific facility. 446

EPA also acknowledges that “site-specific opt ions increase the likelihood that each significant cooling water intake permitting issu e would become a point of contention between the applicant and permit writer, which EPA’s experience indicates slows the permitting process, makes it more resource intensive, and makes it more costly.” 447 And EPA has been clear that site-specific consideratio n of biological and ecologi cal conditions is one of the key drivers of this complexity, controversy, impreci sion and substantial delay:

[B]ecause of the complexity of biological studies, it is very difficult to assess the cause and effect of cooling water intake structures on ecosystems or on important species within an ecosystem. An overwhel ming majority of scientists have stated that biological studies can take multiple years because of the complex nature of biological systems. Moreover, unlike in the laboratory, where conditions are controlled, a multitude of confounding f actors make biological studies very difficult to perform and make causation, in particular, difficult to determine. 448

Biological complexity and the lack of categorical standard s make industry’s superior resources a critical strategic a dvantage. Many states, includi ng New York, New Jersey, Texas, Louisiana, Michigan, Wisconsin, Minnesota, a nd Kansas, have complained to EPA of the extreme burdens of making these de cisions on a case-by-case, site-s pecific basis. For example, the New York State Department of Environm ental Conservation has informed EPA of the “potentially endless, expensive studies that usually yield ambiguous or debatable results ... because it is impossible to identify, measure, and attribute the impact of each the [sic] many variables affecting populations on each of the impacted species.” 449 New York thus asked EPA to promulgate “clear performance-based requireme nts” that set “nationa lly-applicable minimum standards” so that “companies and regulators could put their staff and mone tary resources into reducing impacts instead of into studies and rebuttals.” 450 Similarly, New Jersey has explained

that:

446 65 Fed. Reg. at 49,079 (col. 2). See also 66 Fed. Reg. at 65,262 (cols. 1-2) (EPA noting that site-specific determinations impose “significant resource demands on permitting agencies”) and 66 Fed. Reg, 28,853, 28,865 (cols. 2-3) (May 25, 2001) (in some States’ view, site-specific approach requires “burdensome expenditure of resources to develop section 316(b) requirements for each new facility.”).

447 69 Fed. Reg. at 41,607-608 (footnote and citations omitted).

448 66 Fed. Reg. at 65,285 (col. 2)

449 Statements of NYS Dept. of Env. Cons., Division of Fish, Wildlife, and Marine Resources, provided to U.S. EPA, re Public Meeting to Discuss Adverse Environmental Impacts resulting from Cooling Water Intake Structures, p.1 [DCN 1-5025-PR] (June 29, 1998) (Exh. 89).

450 Phase II Comment Letter from Peter Duncan, Deputy Commissioner of the Office of Natural Resources, NYS DEC, to EPA Proposed Rule Comment Clerk, re the NPDES Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Fac ilities, August 7, 2002, Comment 1.38, p. 2 (Exh. 90).74 State agencies and permitting authorities could engage in a debate for years as to the population measure of a given fish spec ies, let alone many fish species. The results of biological population studie s and modeling can be very subjective because it is difficult to identify, measure, and attribute the impact of each of the many variables...affecting populations of each of the impacted species. 451

More pointedly, Louisiana DEQ has stated: “In our opinion EPA vastly under estimated the resources necessary ... to implement the 316(b) requirements.... Throughout the proposed regulations, reference is made to site-specific determination of best technology available.... Where will the states and/or EPA get the resources to review all the submittals...?” 452
Michigan’s Department of Natural Resources has notified EPA that it has “experienced

considerable inaction in the adoption of technology because of disagreement among power producers and agency biologists” regarding the mi nimization of cooling water intake structure impacts. 453 Likewise, the surface water permitting chief at the Michigan DEQ (which implements the NPDES program in that state) has complained of the:

considerable burden on the NPDES permitti ng program in Michigan if the 316(b) regulations ... require environmental effect s studies at individual facilities. My experience indicates that studi es of the effects of cooli ng water intake structures on the receiving water fisheries are extrem ely difficult to do and the results are difficult to interpret. The burden would be considerably reduced if the regulations require specific cooling water intake st ructure technology. Also, this approach

would seem to me to be consistent with the intent of Section 316(b). 454

As of July, 2011, several states had already taken the opportunity to reemphasize to EPA during the current comment period that a site-specific approach to BTA determinations imposes

considerable and unrealistic administrative burdens on them. For example, the Texas Commission on Environmental Quality told EPA that it:

is not aware of any other situation in the NPDES permitting scheme with such excessive resource expectations on the pe rmitting authority. . . . At a minimum, TCEQ has significant concerns related to the level of expertise necessary to

451 Phase II Comment Letter from Dennis Hart, Assistant Commissioner, Environmental Regulation, New Jersey Department of Environmental Protection, to EPA Proposed Rule Comment Clerk, re Cooling Water Intake Structures (New Facilities), November 9, 2000, DCN Comme nt 1.54, p. 4 (Exh. 91); see also Phase II Comment Lettr from Bradley M. Campbell, Commissioner, New Jersey Department of Environmental Protection, to EPA Proposed Rule Comment Clerk, re Cooling Water Intake Structures (Existing Facilities), Aug. 8, 2002, Comment 2.002 (Exh. 92) (explaining that site-specific options are “likely to result in protracted dialogue between the permitee and the regulatory agency, undue and wasted effort, and delayed implementation of the required improvements.”).

452 Phase II Comment Letter from Gary Aydell, Technical Advisor, Office of the Secret ary, Louisiana Department of Environmental Quality, to EPA Proposed Rule Commen t Clerk, re Cooling Water Intake Structure (Existing Facilities: Phase II) Proposed Rule, August 8, 2002, DCN Comment 2.1, p. 1 (Exh. 93).

453 November 7, 2000 letter from Michigan Dept. of Natural Resources to EPA.

454 Phase II Comment Letter from Bill McCracken, Chief of Permits Section, Surface Water Quality Division, Michigan Department of Environmental Quality, re 316( b) Burden, January 24, 2002 [DCN 4-0049] (Exh. 94).75 review the required information in some of the studies and repor ts (such as noise, grid reliability, air emissions, social benef its). . . . TCEQ is also concerned that the inconsistency of reviews from state to state and region to region will allow for further inequities. 455

Similarly, Kansas warns that “[r]educed stat e funding resources resulting from state budget restraints, expected re ductions in EPA program funding, reduc ed program staffing because of funding restraints over the last se veral years, and increased workloads in the NPDES arena make simplification of the proposed 316(b) Rule provisions imperative.” 456

According to the Minnesota Pollution Cont rol Agency (MPCA), EPA’s rules force permitting agencies:

to play a critical role in the preparation of these applic ation materials, in addition to the final review of the application ma terials and peer review comments during the permit development process. Th e MPCA believes th at this proposed regulation requires expenditure of agen cy resources on permits falling under Section 316(b) .... This approach effectively requires state permitting authorities to undertake a level of effort, on par with a rulemaking , with each and every permit action that requires entrainment mo rtality reductions instead of specifying

reductions within thes e proposed regulations. 457

Instead of onerous case-by-case decision making, “the MPCA is in support of establishing nation-wide performance standards for minimi zing adverse environmental impacts resulting from cooling water intake structures.” 458

Similarly, Wisconsin stated that “[s]p ecific performance standards ... make BTA decisions easier. . . . For example, if cooling to wers are the ideal, why not set this as the EM [entrainment mortality] standard but allow for pe rmittees to demonstrate why this will not work for a given situation?” 459

The lesson learned in these st ates and around the country in th e nearly four decades since Section 316(b) was enacted is that state permit wr iters lack the resources and expertise to permit

intake structures in the absen ce of national categoric al requirements, while applicants can use site-specific standard setting procedures to bri ng permitting to a grinding halt. The electricity industry has long and vigorously ur ged site-specific approaches a nd cost-benefit te sts for Section

455 Phase II Comment Letter from Mark Vickery, P.G., Executive Director, Texas Commission on Environmental Quality to EPA, July 19, 2011, at p. 4 (EPA-HQ-OW-2008-0667-1970).

456 Phase II Comment Letter from Donald R. Carlson, P.E ., Chief, Industrial Programs Section, Bureau of Water, Kansas Department of Health and Environment to EPA, July 1, 2011, p. 6 (EPA-HQ-OW-2008-0667-1598).

457 Letter from Jeff Udd, Acting Supervisor, Industrial Water Quality Permits Unit, Minnesota Pollution Control Agency to EPA, June 30, 2011, at p. 1-2 (EPA-HQ-OW-2008-0667-1631) (emphasis added).

458 Id . at p. 1.

459 Letter from Susan R. Sylvester, Acting Director, Bureau of Watershed Management, Wisconsin Department of Natural Resources to EPA, July 13, 2011, p. 4-5 (EPA-HQ-OW-2008-0667-2063).76 316(b) permitting. 460 Power plant owners have perfected the technique of in undating regulators with site-specific information and then contesting every aspect of the permitting process so as to avoid technological upgrades. (As just a fe w examples of the many power plants whose permitting proceedings have been confounded by the la ck of national intake structure regulations and the resulting case-by-case appr oach, see Section I.C., above.)

Nationwide, there are more than 600 existing power plants subject to the Proposed Rule,and an enormous number of them are already significantly overdue for re-permitting. At coalfired power plants alone, more than 87 milli on MWh of generation operates without an up-todate permit, and nationwide, 255 existing power plants have expired permits. Many of these permits (at least 65) have been expired for more than an entire five-year permit cycle, 461 and at least seven plants that we are aware of are operating with permits th at expired in 1995 or

earlier. 462 States cannot even re-issue permits in a tim ely manner, therefore, it is clear that they are unable to complete the expensive and la bor-intensive technology review required by the proposed rule.

This problem will only get worse as those st ate agencies are subject to ever-worsening budget cuts. In 2011 alone, state funding for envi ronment and energy agencies in New York was cut by ten percent, 463 and state funding for the North Caro lina Department of Environment and Natural Resources was cut by more than twelve percent. 464 In Arizona, the state funding for the Department of Environmental Quality has been cut in half in the last tw o years, dropping from $19.7 million in 2009 to $7 million for 2011, and the budget for the Arizona Department of Water Resources has been cut by almost two-thirds. 465

460 See Riverkeeper I , 358 F.3d at 196 (utility industry arguing that “EPA should only have sought to regulate impingement and entrainment where they have deleterious effects on the overall fish and shellfish populations in the ecosystem, which can only be determined through a case-by-case, site-specific regu latory regime.” ); 67 Fed. Reg. at 17,162 (describing two wholly site-specific regulatory frameworks proposed by a utility association and a power company).

461 See NPDES Permit Expiration Date spreadsheet (listing 47 coal plants with cooling water intakes operating on permits that expired in 2005 or earlier and had not been renewed by 2011; 18 of these were more than 10 years overdue) (Exh. 95).

462 See NPDES Permit Expiration Date spreadsheet (lisitng four coal plants – Indian River, Cayuga, Schiller, and Valley – with pernits expired in 1995 or earlier). In add ition, the Indian Point, Bowline and Roseton facilities on the Hudson River are operating under NPDES permits that were issued in 1987 and expired in 1992. See also Abt Associates, Inc., P2F Compliance Years, dated February 13, 2004 (“[2004] Compliance Year s List”) (listing 57 plants with cooling water intakes operating on permits that expired in the 1990s or earlier and had not been renewed by 2003; 15 of these were more than 10 years overdue) [DCN 6-4036-N] (Exh. 96); See also Attachment to EPA Memorandum re Implementation of Section 316(b) in NPDES Permits, Feb. 27, 2003 (“2003 NPDES Permit List”) (listing 67 plants with cooling water intakes operating on permits that expired in the 1990s and had not been renewed by 2003; 13 of these were more than 10 years overdue) (Exh. 97).

463 Mary Phillips-Sandy, “New York Budget: The 5 Most Painful Cuts,” A OL N EWS (Feb. 1, 2011) (Exh. 98) also

available at http://www.aolnews.com/2011/02/01/new-yo rk-budget-the-5-most-painful-cuts/.

464 Gary Robertson and Martha Waggoner, “Final NC budget takes aim at environmental policy,” Bloomberg

Business Week (June 3, 2011) (Exh. 99) also available at http://www.businessweek.com/ap/financialnews

/D9NKE8N80.htm.

465 Shaun McKinnon, Arizona budget cuts hurting water and air agencies , T HE A RIZONA R EPUBLIC (May 4, 2010) (Exh. 100) also available at http://www.azcentral.com/arizonarepublic /news/articles/2010/05/04/20100504arizonabudget-cuts-hurting-water-and-agencies.html.77 The federal funding for state e nvironmental agencies has al so been cut. The EPA’s budget for the 2011 fiscal year was cut by 16 percen t, and EPA passed that loss on to the states by cutting the federal funding given to state envi ronmental agencies. Experts predict that the EPA’s budget will be cut again during the next a ppropriations cycle, which will likely result in more cuts to state funding. 466 As a result of these drastic cuts , state officials have millions of dollars less to implement and enforce environm ental laws than they did a few years ago. 467
These cuts have left state environmental ag encies seriously shorthanded, making it even unreasonable to believe that they can complete the resource intensive review required by this permitting process.

EPA recognizes that Section 316(b) requires it “to establish standards for cooling water

intake structures that reflect the ‘best technology available for minimizing adverse environmental impact.’” 468 EPA also knows that state permitting author ities almost never complete site-specific determinations in a timely manne r, and in many cases do not complete them at all. The simple reality is that most state permit writing agencies do not have sufficient financial or technical resources to meaningfully address cooling wate r impacts in the absence of national categorical requirements. Experience over the last four d ecades has shown that a case-by-case approach simply will not work. Instead, it is guaranteed to mire the NPDES permitting process in an endless cycle of paperwork and litigation th at will leave waterbodies across the country unprotected. Any cooling wate r rule EPA promulgates cannot be effective unless it is simple and straightforward to implement, and does not require case-by-case de termination of BTA requirements for each facility. Accordingly, the agency’s conclusion that entrainment controls determined by state permitting authorities on a site-specific basis “represent[] the best technology available for minimizing the adverse environmental imp acts associated with intake

structures” 469 is irrational and illegal.

(2) States Cannot Conduct, or Meaningfully Review, Site-Specific Cost-Benefit Analyses.

Similarly, and more particular ly, it is arbitrary, capricious, and an abuse of discretion for EPA to require states to perform the task th at it knows, above all, they cannot possibly accomplish: evaluating the conseque ntial, monetized and social benefits of entrainment controls on a site-specific basis. 470 Under the Proposed Rule, state permitting authorities must not only oversee the development of hundreds of case-by-cas e, cost-benefit analyses, they also must

466 Id

.
467 Juliet Eilperin, EPA budget cuts put states in bind , T HE W ASHINGTON P OST (June 20, 2011) (Exh. 101) also

available at http://www.washingtonpost.com/national/env ironment/epa-budget-cuts-put-states-inbind/2011/06/08/AGbVpYdH_story.html.

468 76 Fed. Reg. at 22,196 (col. 2)

469 76 Fed. Reg. at 22,210 (col. 2).

470 See 76 Fed. Reg. at 22,204 (col. 2) (“the facility would provide detailed information on the other factors relevant to the Director’s site-specific BTA determination. These would include . . . both the monetized and non-monetized benefits of such controls.”); see also 76 Fed. Reg. at 22,210 (col. 3) (“ [T]he facility’s permit application must include the following information: . . . a detailed discussion of the magnitude of water quality benefits, both monetized and non-monetized, of the candidate entrainment mortality reduction technologies evaluated.”).78 conduct a meaningful review of each applicant’s studies that includes both quantitative and qualitative assessments of environmental benefits and, more problematic still, estimates of the

monetized value of these benefits. 471 That task simply cannot be done by state permitting agencies – not under the relatively flush times of years past, and most cer tainly not in today’s leaner times as state agency re sources are stretched ev er thinner – and EPA knows it. The rule’s site-specific cost-benefit analysis requirements will thus only impede the permitting process, reduce environmental protection, and lead to in effective and wildly in consistent permitting decisions – exactly the opposite of what Congress expected when it ordered EPA to set standards under Section 316(b) and what Administrator Jack son promised in asserting the rule would provide “regulatory certainty.”

It is clear that states can not conduct cost-benefit analysis under section 316(b) because,

even with the resources of the federal government at its dispos al, EPA itself could not do it. EPA was incapable of making meaningful cost-b enefit determinations for fundamental reasons: considerable uncertainty in quantifying the physi cal benefits of the rule, and beyond that, an inability to assign meaningful and accurate moneta ry values to those benefits. Tellingly, in the draft of this rule that EPA originally sent to OMB, EPA candidly admitted that it did not rely on the results of a cost-benefit analysis in setting standards because “a national weighing of costs and benefits is not possible at this time.” 472 It is irrational to th ink that what EPA cannot complete once, the states can do hundreds of times.

The first problem that EPA encountered lay in quantifying the benefits of the rule within acceptable bounds of uncertainty. There are some categories of benefits that EPA admits it was entirely unable to quantify, although the agency ac knowledges that they exist and are important. For example, “[w]hile EPA can identify and hyp othesize regarding the direction and relative importance of impacts of CWISs on the totality of the aquatic ecosystem ..., EPA is currently

unable to connect these effects w ith quantifiable environmental be nefits. Thus, it is highly likely that the total environmental and monetary impacts of CWISs are significantly

underestimated...” 473

EPA also believes that its calculations undere stimate the environmenta l impacts of intake structures in other ways. For example, EP A confirmed that at least 15 threatened and endangered species are currently killed by cooling water in take structures. 474 But EPA states that 15 species “may be an underestimate” because it has documented cases of intakes killing nonendangered organisms from the same genus as a threatened and endangered species, and the range of the endangered species is sufficiently similar to that of the other member of its genus

that it includes the zone of danger near a reporting f acility’s intake structure. 475 In all, EPA

471 See 76 Fed. Reg. at 22,205 (col. 3) (the state permitti ng authority’s “written explanation would provide a review of the social costs . . . of the various technologies; a review of the potential reductions in entrainment and entrainment mortality; and a review and analysis of monetized and non-monetized benefits.”).

472 Redlined Version of Proposed Rule, p. 166 (emphasis added).

473 2011 EEBA, p. 2-22.

474 76 Fed. Reg. at 22,244 (col. 1).

475 76 Fed. Reg. at 22,244 (col. 3).79 identified 88 threatened and endangered species whose ranges overlap with cooling water intakes affected by this Rule. 476

After grappling with the physic al uncertainties, EPA was then faced with the even more difficult task of assigning meaningful and accurate dollar figures to the estimated 98 percent of

the rule’s benefits that have no established market value benefits to wildlife, ecosystem stability, and endangered species. Here, EPA admits a near-complete failure:

EPA’s analysis does not fully quan tify or monetize certain potentially important categories of benefits, such as existence values for threatened and endangered species, secondary and tertiary ecosystem impacts, benthic community impacts, shellfis h impacts and the impacts arising from reductions in thermal discharges that would be associated with closed-cycle. Changes in fish assemblages due to impingement, entrainment and thermal effects are also not fully valued. 477

The problem is not a lack of effort or resources on EPA’s part, but fundamental methodological and data gathering obstacles:

Consideration of benefits in particular is complicated by the absence of well-developed tools or data to full y express the ecological benefits in monetized terms. EPA has, however, used the best currently available

science to monetize the benefits of the various options in four major categories: Recreational fishing, co mmercial fishing, nonuse benefits, and

benefits to threatened and endangered species. 478

Even a (comparably) well resourced federal ag ency applying “the best currently available

science” was forced to conclude th at its estimates of non-use benef its and benefits to threatened and endangered species “are incomplete.” 479 And since it was unable to monetize many categories of benefits, EPA’s ability to ba se BTA decision making on the relationship of quantified costs and benefits alone was, by the agency’s own admission, “challenging.” 480

The fact that EPA encountered such difficulties is unsurprising. They stem, in part, from the fact that monetizing the esti mated benefits of this rule re quires EPA to make difficult, sensitive, value-laden, and highl y subjective assumptions. This comment letter summarizes key points from a more extensive environmental economic report prepared by two of Stockholm

Environment Institute’s seni or economists, Frank Ackerman and Elizabeth Stanton. 481 The full Stockholm Environment Institute (S EI) report is attached to th ese comments as Appendix A.

476 See 76 Fed. Reg. at 22,244 (col. 3).

477 76 Fed. Reg. at 22,207 (col. 2-3).

478 76 Fed. Reg. at 22,197 (col. 1).

479 76 Fed. Reg. at 22,197 (col. 1).

480 See 76 Fed. Reg. at 22,247 (col. 2).

481 Comments of Frank Ackerman, Ph.D., and Elizabeth A. Stanton, Ph.D., Stockholm Environmental Institute-U.S. Center, Aug. 18, 2011, hereinafter (“SE I Report”), attached as Appendix A.80 That report suggests that it may be impossible to infer accurate and meaningful measures of the value society places upon aquatic ecosyste ms from human behavior in markets:

[e]thical statements about nature, en vironmental integrity, and obligations to protect ecosystems and biodivers ity, which are at stake for many people, are only awkwardly translated into the language of monetized nonuse values. The beliefs of many stak eholders may be distorted beyond recognition in this proce ss (or ignored for lack of research meeting rigid specifications) – which is why cost-benefit analysis is poorly suited for

this case. 482

States that must oversee, revi ew, and rely upon intensive cost-b enefit analyses of the sort that EPA attempted will have no more success (and likely far less success) than EPA in their

efforts to set clear entrainment standards. To conduct a fine-grained and monetized cost-benefit analysis of the kind that EPA attempted, the a pplicants (who are required to conduct the costbenefit study in the first instance) will first need to accurately estimate th e number of fish of different species and different lif e stages lost to cooling wate r intake structures. As the significant flaws in EPA’s quantitative data show, 483 this is itself a difficult task. States will then need to provide applicants with methods to stan dardize fish counts across different life stages. To value forage fish species in terms of thei r impact on commercially and recreationally valued species, states will need to adapt trophic transfer models to the particular water bodies in their jurisdiction (since trophic transfer rates range from 2% to 24%) or will have to require applicants to study trophic transfer rates in their particular waterbody. 484

States will also need to carefully police th e way that regulated facilities monetize their benefit estimates. Valuing commercial fishing benefits entails retain ing economists, assessing regional fish market pr ice data, and evaluating economic mo dels of producer and consumer surplus, taking into account any price shifts due to increased s upply. To value breeding stocks for the ecosystem as a whole, states will have to assess fish population dynamics. 485 To value recreational fishing, applicants will have to a ttempt something akin to EPA’s “Random Utility Model” (RUM). For ecosystem benefits, either th e applicants or the Stat es will need to conduct original stated preference studies or attempt a benefits transfer appro ach, which even EPA could not do. And the entire approach of treating non-use values as monetizable values rather than as ethical constraints is proble matic for most people.

In short, EPA found it incredibly difficult to quantify the environmenta l benefits of this rule and can scarcely begin to estimate their monetary value. EPA admits that its efforts are awkward and its results are freighted with a gr eat deal of uncertainty. Showing appropriate humility and honesty, EPA forthrightly admitted in its earlier draft (before OMB’s intervention)

that it lacked confidence in its cost-benefit an alysis and could not rely upon it in making a BTA

482 Stockholm Environment Institute report.

483 See discussion of EPA’s undercounts in Section III.F.2.a.

484 See Stockholm Environment Institute report.

485 See 69 Fed. Reg. at 41,660 (Col. 1) (EPA acknowledging that its own analysis faile d to account for the progeny of fish killed by impingement and entrainment and that “given the complexities of population dynamics, the significance of this omission is not clear.”).81 determination. The problems that frustrated EPA w ill plague the states as well. EPA’s inability to complete a cost-benefit analysis provides specif ic, recent empirical evidence that states cannot conduct cost-benefit analyses of the kind that EPA envisions.

None of this comes as news to EPA. The states themselves, and others, have repeatedly told the agency that their inab ility to implement Section 316(b ) without national standards is most pronounced when it comes to cost-benefit an alysis. The Atlantic St ates Marine Fisheries Commission told EPA that “state permitting agencies do not have the appropriate staff to properly evaluate ... comprehens ive cost-benefit analyses.” 486 In commenting on the Phase II rule, New York State wrote that site-specific co st-benefit analysis “could effectively negate the value of the entire Phase II rule ... [because] th e task of placing an accurate dollar value on aquatic resource impacts is rife with ecological and economic challenges; there is no widely accepted methodology.” 487 Likewise, California informed EP A of its “experience ... that it is difficult to obtain agreement on costs or benefits . The result is a long series of arguments involving dueling cost/benefit analyses.” 488

Site-specific and monetized cost-benefit analys is gives existing facilities a powerful tool to evade regulation by converting NPDES permitti ng into a lengthy, controversial and ultimately futile debate about fishing yields and fish pr ices, and how much envi ronmental protection is worth to the public. Such delays are an enormous impediment to protecting the natural resources Congress intended to EPA to safeguard. As th e D.C. Circuit explaine d in affirming EPA’s refusal to consider receiving water quality in se tting effluent limitations for the pulp and paper industry, “Congress clearly intende d ... to avoid such problems of proof so that a set of regulations with enforcea ble impact is possible.” 489

Accordingly, EPA should not require state ag encies to conduct site -specific cost-benefit analyses in the context of permitting. It is arbitrary, capricious, and an abuse of discretion for EPA to demand that state permit writers undertake a task that it knows they cannot complete.

486 Letter from John V. O’Shea, Executive Director, Atlan tic States Marine Fisheries Commission to Proposed Rule Comment Clerk, EPA, re: Cooling Water Intake Structure (Existing Facilities: Phase II), Aug. 7, 2002, at 1, Comments 1.059 (Exh. 102).

487 Phase II Comment Letter from Peter Duncan, Deputy Commissioner of the Office of Natural Resources, NYS DEC, to EPA Proposed Rule Comment Clerk, re the NPDES Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Fac ilities, August 7, 2002, Comment 1.38, p. 3-4 (Exh. 90).

488 Letter from Celeste Cantu, Executive Director of the California State Water Resources Control Board, to EPA Proposed Rule Comment Clerk-W-00-32, re Comments on National Pollution Discharge Elimination System Proposed Regulations to Establish Requi rements for Cooling Water Intake Structures at Phase II Existing Facilities (Proposed Rule), August 5, 2002, at 4 (Exh. 103); see also Letter from Denise Sheehan, Executive Deputy Commissioner, New York DEC to Water Docket, EPA, re New York State Department of Environmental Conservation comments regarding the Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability (NODA), dated March 19, 2003 (June 2, 2003) (Exh. 104); NY DEC, Further Comments to the U.S. Envir onmental Protection Agency on its “Issues for Discussion at the Public meeting on September 10 and 11, 1998, Regarding §316(b) Rulemaking” held in Alexandria, VA (Oct. 5, 1998) (Exh. 105).

489 Weyerhaeuser , 590 F.2d at 1044.82 d. The Open-Ended Case-By-Case Format EPA Proposed (Based on Substantial Last-Minute Changes by OMB) Is Very Poorly Designed.

As discussed, EPA’s decision to require states to set standards for entrainment controls on a case-by-case basis violates the Clean Water Act and is arbitrary, unworkable, and an abuse of discretion. In addition, the particular type of case-by-case decisionmaking format that EPA has proposed here is deeply flawed for many reasons.

First, under the Proposed Rule, studies that are highly sensitive to esoteric, value-laden assumptions about discount rates, valuation me thodologies, and other issues will be bought and paid for by the regulated entities – as will the “indep endent” reviews of these studies. It will be critical, but impossible, for stat es to meaningfully oversee and re view the work of consultants and industry experts. Regulated entities will end up self-regu lating because they pay for the studies underpinning the state’s en trainment control decision, pay fo r the review of those studies, and the state permitting authorities lack the capacity to provide a meaningful review of industry’s

submittals.

Second, the Proposed Rule leaves permit wr iters with unfettered discretion to set standards and reject bett er performing technologies. The Pro posed Rule can be read to allow a permitting authority to consider an unlimited set of factors and then to reject any technology

based on any of those criteria. Although EPA has set fort h nine criteria that must be considered, the Director can consider any othe r criteria as well. A nd although they must all be “considered,”

there is no indication of which criteria are more important than others, an d in any case, all of them can simply be overruled by an additional tent h criterion added by the state. This is an open-ended balancing test in whic h permit writers have unfettered discretion to reach and justify any decision at all on any grounds that they pl ease. By leaving permit writers with unlimited discretion to make case-by-case decisions, EPA is not only fa iling to set a standard, but experience with unconstrained cas e-by-case decision making under S ection 316(b) shows that it will invariably lead to inconsistent decisions from state to state, and this delegation of unfettered discretion is illegal because it conflicts “with the Act’s goal of uniform standards within an industry.” 490

Third, EPA (actually, OMB) has proposed that states should perform an unlawful form of cost-benefit analysis. After OMB’s revisions, the Propos ed Rule abandons EPA’s “wholly disproportionate” standard for cost benefit an alysis, and allows perm it writers to reject any superior technology if its benef its “do not justify” its costs. 491 This is problematic because it could allow permit writers to engage in a more searching and rigorous form of cost benefit analysis than is authorized even under the Act’s weakest technology-ba sed standard, the BPT

standard. 492 As discussed above in Section III.A.3, the Clean Water Act severely limits EPA’s discretion with respect to the type of cost-ben efit test that it may employ under Section 316(b) and prohibits the establishment of BTA requirement s on the basis of certain types of cost-benefit

490 NRDC v. U.S. EPA , 863 F.2d 1420, 1432 (9th Cir.1988).

491 See proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1).

492 See Entergy , 129 S.Ct. at 1508 (“Other arguments may be available to preclude such a rigorous form of costbenefit analysis as that which was prescribed un der the statute's former BPT standard . . . .”).83 analyses. 493 In particular, “the courts of appeal ha ve consistently held that Congress intended Section 304(b) . . . to preclude the EPA fr om giving the cost of compliance primary importance.” 494

The “limited” cost-benefit analysis performed in setting the BPT standards was simply a comparison of the degree of effluent reduction with the costs to the affect ed industry of attaining

such reduction. 495 The analogy to this approach in the context of Section 316(b) would be a comparison of the degree of reduction in impi ngement and entrainment with the costs of attaining such reduction. For the Proposed Rule, however, EPA is authorizing states to perform a second analysis quite different from anyt hing contemplated by Congress for BPT: a comparison of monetized social benefits, calcul ated based on an assessment of consequential water quality effects, with monetized social costs.

EPA’s use of the phrase “benef its justify the costs” may be lawful only as a reformulation of its long-standing “wholly dispro portionate” test. But if, as a ppears to be the case, EPA (or OMB) is allowing the use of forms of cost-benefit analyses that elevate economic considerations to a degree of primary importance, then the ne w standard violates th e Clean Water Act.

OMB removed from the Proposed Rule the few provisions that would have helped mitigate the problems noted here. EPA orig inally designed a case-by-case analysis format in which state permitting authorities would begin with a rebuttable presumption that the best-performing technology – closed -cycle cooling – was the best technology available. EPA also avoided making cost-ben efit analysis a primar y consideration, using it only to eliminate extreme results: it wrote that a state may not reject “an otherwise available technology . . . unless the soci al costs of compliance are wholly disproportionate to the social benefits.” 496 But OMB changed that to allow a state to reject an otherwise available technology “i f the social costs of compliance are not justified by the social benefits...” 497

As a result, the rule creates an evidentiary quagmire for regulators, antithetical to NPDES permitting, which allows applicants to avoid inst alling environmentally protective controls for years, or even decades. If promulgated as pr oposed, the case-by-case entrainment provisions will sanction precisely the kind of regulator y uncertainty that Congress intended NPDES

493 See EPA’s understanding of its cost-ben efit authority, supra section III.A.3.

494 Chemical Mfrs. Ass’n v. EPA , 870 F.2d 177, 204 (5th Cir. 1989). See also American Iron & Steel Inst. v. EPA

, 526 F.2d 1027, 1051 (3d Cir. 1975) (“even with that 1977 [BPT] standard, the cost of compliance was not a factor to be given primary importance.”); BASF Wyandotte Corp. ,598 F.2d at 637, 656 (1st Cir. 1979) (In determining the BPT standard, “[c]ost, however, is not a paramount consideration. Congress self-consciously made the legislative determination that the health and safety gains that achievement of the Act’s aspirations would bring to future generations will in some cases outweigh the economic disl ocation it causes to the present generation. The obligation the Act imposes on EPA is only to perform a limited cost-benefit balancing to make sure that costs are not ‘wholly out of proportion’ to the benefits achieve d.”) (quotations and citations omitted).

495 Appalachian Power Co. v. EPA , 671 F.2d. 801, 809 n.3 (4th Cir. 1982) (“[T]he ‘benefits’ that are to be related to ‘costs’ under § 304(b)(1)(B) are simply the benefits assumed to result ... from any reduction in the level of effluents being discharged.”) (emphasis added).

496 Redlined Version of Proposed Rule p. 344.

497 Id., see also 76 Fed. Reg. at 22,262 (col. 2).84 technology standards to eliminate. Because of the myriad uncertainties involved in determining the effects on waterbodies – as state agenci es have explained and EPA acknowledges – permit

writers will have unfettered disc retion to unlawfully reject bett er performing technologies based on an open-ended balancing of factors, and to elevate cost and water quality considerations above technological efficacy. They will undoubtedly face substantial pressure to reduce the requirements for protection, given the lack of sta ndards and the resources industry brings to bear in these proceedings. This is squarely at odds with the national technology-based scheme intended by Congress.

2. EPA Should Select Option 3’s Entrainment Standard for the Final Rule.

a. Establishing National Categorical Standards Based on Closed-Cycle Cooling for Virtually All Existing Facilities, as the Agency Did a Decade Ago for New Faciliti es, Would Minimize Adverse Environmental Impacts.

In developing the Proposed Rule, “EPA conc luded that closed-cycle cooling reduces impingement and entrainment mortality to the greatest extent.” 498 That conclusion should come as no surprise because for more than a decade, EPA as well as state agencies, Congress, and virtually everyone else to have seriously considered the issue has come to the same conclusion that closed-cycle cooling (wet or dry) is most effective at reducing fish kills because it reduces intake flow to such a great extent. In additi on to reducing impingement and entrainment, closedcycle cooling also reduces thermal pollution, pr otect endangered specie s and the biological integrity of ecosystems, increase fish populations and fishing yields, increa se the reliability of power plants in areas prone to drought, reduce competition for scarce water resources in these areas, and free power plants from the need to be located on waterfront lands, among other things.

No other technology comes anywhere close to the effectiveness and environmental benefits of closed-cycle cooli ng and EPA has not concluded, or ev en suggested otherwise. By EPA’s own calculations (which ar e significant underestimates due to the age of the data and other factors), Option 3 would save more than 500 billion of i ndividual aquatic organisms per

year 499 and result in estimated increases to fisher y yields from two to more than 100 times greater than those under Op tion 1, depending on the region. 500 In the 2001 Phase I Rule and in the requirements for new units at existing faci lities proposed as a component of the Proposed Rule, EPA set or proposes to se t a national categorical standard requiring those facilities to

reduce their intake flow to a level commensurate with that wh ich could be achieved with a closed-cycle recircul ating cooling system. 501 Doing so here would minimize the adverse environmental impacts of cooling water intake structures at existing facilities, as Congress intended, and would not cause any collateral problems, c ontrary to industry’s hyperbolic claims.

498 76 Fed. Reg. at 22,207 (col. 1).

499 76 Fed. Reg. at 22,239.

500 2011 EEBA at 3-6 to 3-15.

501 40 C.F.R. § 125.84(b)(i); proposed 40 C.F.R. § 125.94(d)(i); 76 Fed. Reg. at 22,283 (col. 2).85 b. The Rulemaking Record Demonstrat es that Closed-Cycle Cooling is Available to the Existing Facilities Because Retrofits are Feasible and Inexpensive.

As noted in the preamble, “EPA’s record s hows numerous instances of existing facility retrofits to closed-cycle.” 502 For example, retrofits of clos ed-cycle cooling on existing plants were completed many years ago at a gas-fired pl ant on a west coast estuary (Unit 7 of the 751 MW gas-fired Pittsburg Power Plant in Contra Costa County, California); a nuclear plant on a Great Lake (812 MW Palisades Nuclear Plant in Michigan), and coal-fired plants on eastern seaboard rivers (490 MW coal-f ired Canadys Steam Plant and 346 MW Jefferies Coal Plant in South Carolina). 503 More recently, retrofits were comp leted at the McDonough (520 MW coal) and Yates (1250 MW, coal) plants on the Chatta hoochee River in Georgi a and at the Wateree Station (772 MW, coal) on the Wateree River in South Carolina, and are well underway at the Brayton Point power station (1500 MW, co al/oil) in Somerset, Massachusetts.

As discussed above, “technology-forcing” stan dards like BTA must compel industry to meet ever more stringent limitations and therefore must be established with reference to the best performer in any industrial category – “not the av erage plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible.” 504 Thus, the fact that the technology is widely available to existing facilit ies makes it “available” as that term is used in Section 316(b).

Further, the costs of retrofitting to clos ed-cycle cooling are minimal from both a

microeconomic and a macroeconomic perspective. At the company level, EPA estimated that, at the very most, 1.5 percent of existing power units would retire as a result of the compliance costs, and this is clearly an overestimate because EPA assumed for purposes of that analysis that companies would absorb all the costs, rather than passing any of them on to consumers. Looking at the economy as a whole, as the SEI Report explains, the costs are small by any reasonable measure because the annualized total cost of Op tion 3 at a 7 percent discount rate, the highest cost estimate in the analysis, is $4.86 billion, or 0.033 percent (1 /30 of one percent) of the $14

trillion US GDP.

Moreover, the potential hurdles identified by EPA as potentially making closed-cycle cooling retrofits somewhat more difficult in some locations are not only le gally irrelevant (for the reasons just described), but al so dramatically overstate the exte nt of the potential problems.

(1) There Is Adequate Space for Closed-Cycle Cooling at Virtually Any Plant Site.

In the preamble, EPA found that “the majority of facilities have adequate available land for placement of cooling towers.” 505 Further, even where faciliti es have constraints in this

502 76 Fed. Reg. at 22,204 (col. 1).

503 67 Fed. Reg. at 17,155 (col. 1) (Apr. 9, 2002); Phase II TDD, pp. 4-1 to 4-6.

504 Kennecott v. EPA , 780 F.2d 445, 448 (4th Cir. 1985), citing legislative history See A Legislative History of the Water Pollution Control Act Amendments of 1972 , 93d Cong., 1st Sess. (Comm. Print 1973), at 798.

505 76 Fed. Reg. at 22,209 (col. 2).86 regard, “[b]ased on [EPA’s] site visits, EPA has found that several facilities have been able to engineer solutions when faced with limited available land.” 506 Allowing potential spaceconstraint considerations at some sites to justif y a case-by-case approach fo r all facilities, as EPA has done in the Proposed Rule, is arbitrary and capricious. As explained in the attached engineering report prepared by Po wers Engineering, EPA’s estimate that as many as 25 percent of facilities might have space constraints that wo uld limit retrofit of closed-cycle cooling for the entire facility or increase compliance costs is vastly overblown because EPA’s assessment is

based on the use of land-intensive in-line cooling cells, not the much more space efficient backto-back cooling cell configuration. 507 A back-to-back cooling cell configuration requires about 17 percent of the space needed for two in-line towers for the same cooling capacity, assuming the spacing recommended for para llel banks of in-line towers. 508 Because cooling cells can be

installed in a back-to-back c onfiguration at virtually any si te, EPA should not set a “limited acreage” exemption (such as the 160 acres per gigawatt threshold the agency is exploring) and should acknowledge that closed-cycle cooling is an available technology for the industry as a whole. Finally, even if there is are arguable site constraints, the use of eminent domain for matters relating to power transmission and genera tion (as well as a variety of other public goods and services) is well-established and s hould not be ruled out in this context. 509

(2) Remaining Useful Life is Not Quantifiable, Certain, Binding or

Relevant Unless a Plant Owner Has Committed to a Closure

Date.

EPA’s argument that it is impractical to ask plants with a very short remaining useful life to undertake a closed-cycle cooling retrofit is re asonable only to the exte nt that a plant owner makes a legally binding commitment to permanently retire the once-through cooled units within a 5-year period. If a plant operator cannot make a legally binding commitment to permanently

retire the units within that tim eframe, then the units should get no special consideration from the

506 76 Fed. Reg. at 22,209 (cols. 2-3).

507 See TDD at 8-23 (“The EPRI worksheet contains numerous assumptions and default values that can be modified using site-specific data. Specific relevant assumptions and default values are listed below . . . Tower configuration was in-line rather than back-to-back, mean ing towers are oriented in single rows rather than rows of two towers side by side.”).

508 See Powers Report.

509 For example, in New York, the state’s general power of eminent domain has been previously used for, inter alia

, Urban Renewal ( Jackson v. New York State Urban Dev. Corp., 503 N.Y.S.2d 298); public roadways and
intersections ( Waldo's, Inc. v. Village of Johnson City, 544 N.Y.S.2d. 809); maintaining the public shoreline ( Pfohl v. Village of Sylvan Beach, 809 N.Y.S.2d. 367); providing electrical power ( Bergen Swamp Preserve Socy. v. Village of Bergen, 741 N.Y.S.2d. 363) ; constructing water tunnels ( City of New York [Third Water Tunnel, Shaft
30B], 795 N.Y.S.2d 229, affd. 814 N.Y. S.2d 592); controlling sewage ( Ranauro v. Town of Owasco, 735 N.Y.S.2d
332); providing a site for a general hospital ( In Re Site for New General Hospital, 112 N.Y.S.2d 101, affd. 305 N.Y. 835); expanding airports ( First Broadcasting Corp. v. City of Syracuse, 435 N.Y.S.2d. 194); protecting the public from fire damage ( Engels v. Village of Potsdam , 727 N.Y.S.2d 202); providing necessary public parking ( Salvation Army v. Central Islip Fire Dist. , 646 N.Y.S.2d 558) ; developing blighted areas ( Murray v. LaGuardia , 52 N.E.2d 884); expanding/creating public parks ( Woodfield Equities LLC v. Incorporated Vil. of Patchogue , 813 N.Y.S.2d 184 (2006)); expanding municipal buildings ( Stankevich v. Town of Southold, 815 NYS2d 225 (2006)) ; providing affordable housing to local residents ( Keegan v. City of Hudson , 803 N.Y.S.2d 279); and building a sport stadium
( Murphy v. Erie County , 28 N.Y.2d 80 (1971)).87 EPA regarding remaining useful life. In the 1970 s, and in every decade since then, power plant operators have made the argument that they ha ve insufficient useful life remaining to impose significant capital costs, whether for closed-cycle cooling or other pollution control equipment. And for those forty years, the plants have cont inued to operate, killing fish and causing other forms of pollution with the same antiquated equipment. 510 If, however, a plant operator is willing to back up its claim of limited useful life by making the closure date binding, as the Oyster Creek nuclear plant in New Jersey recently did, and the closure date is reasonably close in time, then the remaining life becomes relevant an d can be taken into consideration. Because so few plants have committed to a closure date, and experience shows that plants continue to operate well beyond the end of thei r expected useful life, remaining life is not an obstacle to the availability of closed-cycle cooling.

Ironically, some newer plant operators may ev en attempt to make the argument that consideration of “remaining useful life” excuses them from complia nce with any sort of upgrade, as the operator has not yet been able to recoup original construction costs. 511 This is the argument made by the Los Angeles Department of Water and Power in its current attempt to avoid compliance. 512 Yet this cannot be what EPA inte nds by allowing “remaining useful life” considerations, otherwise it would always be both too early and too late to require plants to modernize their cooling systems, and Section 316(b) would be drained of all its meaning.

c. The Rulemaking Record Demonstrates that Requiring Antiquated

Plants to Install the Same Coo ling Technology as their Modern Counterparts Would Not Cause Any Significant Adverse Impacts on Energy Supplies, the Economy or the Environment.

(1) Requiring Closed-Cycle Coo ling Would Not Cause Electricity Shortages.

There will be no adverse reliability impact to the electric sector from adoption of Option 3. EPA’s electric system modeling analyses demonstrate that Opti on 3 would cause very few, if any, plant retirements and any c onsequential retireme nts will not adversely affect system reliability. According to EPA’s estimates, the a dditional retirements (whether full or partial) caused by Option 3 would total only 17 gigawatts, wh ich represents less than 1.5 percent of total capacity in 2028. 513 Moreover, even this estimate drasti cally overstates the extent of actual

retirements for a number of reasons.

510 See, e.g., Press Release “Nuclear Regulatory Commission, Depa rtment of Energy and Nuclear Energy Institute Sponsor February Workshop on Extend ed Operation for Nuclear Power Plan ts,” December 22 , 2010 (Exh. 106).

511 See, e.g., Dynegy Moss Landing, LLC, “State Water Resources Control Board Once-Through Cooling Water Policy Implementation Plan for the Moss Landing Power Plant” at 13-14 (April 1, 2011) (Exh. 107) (arguing that changes to the cooling system are unwarranted in light of recent, large capital investments).

512 See e-mail from John Dennis, LADWP to Jonathan Bishop, California State Water Resources Control Board (Jul. 22, 2010) (Exh. 108) (arguing that LADWP should be allowed additional time for compliance with California’s once-through cooling water policy in light of rece nt investments totaling over $600 million).

513 See EPA, Economic and Benefits Analysis for Proposed 316(b) Existing Facilities Rule (2011), (hereinafter “2011 EBA”) at Table 6-3.88 First, EPA assumed for purposes of this analys is that none of the costs of the regulation would be passed on to consumers, an obviously incorrect and highly co nservative assumption. 514
In fact, because plants will attempt to pass on as much of the costs as they can, and because in regulated states this happens relatively automatically, there will be far fewer retirements than

EPA estimated. 515

In addition, several other reasons why there will no adve rse reliability impacts are discussed in a report prepared by Schlissel Technical Consulting, Inc. The full report is attached to this comment letter as Appendix C. As the at tached report explains in more detail, EPA used

out-of-date demand forecasts. Under current for ecasts, demand is lower than EPA estimated and

there is less need for the 1.5 percent of capacity that EPA (over)estimated might retire. 516

Even if a few existing generating units were to retire as a result of Option 3, system operators and utilities will have long lead times to construct any needed replacement capacity for any retirements that might occur. Moreover, new energy efficiency, demand side measures and

renewable resources can meet future electricit y demands while maintaining electric system reliability. 517 Additionally, the Schlissel report also notes that EPA’s analysis shows that all NERC regions will comfortably exceed their required reserves in off-peak periods even with outages related to retrofits. 518

(2) Requiring Closed-Cycle Cooling Would Not Increase Electricity Prices.

EPA estimated that under Option 3, the aver age annual cost per re sidential household in 2015 would be less than $1.47 pe r month ($17.60 per year). 519 And even this very modest sum is, by EPA’s own admission, an overestimate of the actual costs because EPA assumed “full pass-through of all compliance co sts to electricity consumers,” 520 which is certain not to be the case in deregulated states where costs are not automatically passed on. As EPA admitted, “at least some facilities and firms are likely to ab sorb some of these costs, thereby reducing the impact of today’s proposed ru le on electricity consumers.” 521 The extent to which power companies will absorb closed-cycle cooling costs (with negligible effects on their bottom line) is illustrated in a report by the economist Robert McCullough, entitled the Economics of Closed-

514 76 Fed. Reg. at 22,223 (col. 2) (“For these two anal yses, the Agency assumed that none of the compliance costs will be passed on to consumers through electricity rate increases and will instead be absorbed by complying facilities and their parent entities.”).

515 As discussed below, when estimating effects on electric ity prices, EPA made the opposite (but equally unrealistic and conservative assumption), that 100 percent of the costs would be passed on to consumers.

516 Schlissel report.

517 See M.J. Bradley & Analysis Group, Ensuring a Clean, Modern Electric Generating Fleet while Maintaining Electric System Reliability (2010), at 3-5 (Exh. 109); Bipartisan Policy Center, Environmental Regulation and Electric System Reliability , at 39 (2011) (Exh. 110); J. McCarthy and C. Copeland, Congressional Research Service, EPA’s Regulation of Coal-Fired Power: Is a “Train Wreck” Coming? (July 11, 2011) (Exh. 111).

518 Schlissel report, citing 2011 EBA, Table 5-8.

519 76 Fed. Reg. at 22,228 (Exhibit VII – 10).

520 76 Fed. Reg. at 22,228 (Exhibit VII – 10, footnote “a”).

521 76 Fed. Reg. at 22,228 (col. 1).89 Cycle Cooling in New York . That report shows that the change in electricity prices as a result of requiring closed-cycle cooling for all existing plants in New York state would be minimal (less than 1 percent) because for the vast majority of the time, the market clearing price of electricity in New York (the price that all pl ants are paid for electricity regard less of their costs or the price they bid) is set by plants with closed-cycle cooling. 522 Thus, New Yorkers are already paying for closed-cycle cooling, and ex isting plants that s till use once-through coo ling are pocketing the difference. The same is likely true to a certain extent in other deregulat ed states. Accordingly, any increase in electricity prices would be negl igible and barely noticed by consumers.

(3) Requiring Closed-Cycle Cooling Would Create Jobs and Improve the Economy.

A review of EPA’s economic impact analys is by economists Professor Frank Ackerman

and Dr. Elizabeth Stanton shows that a closed-cycle cooling standard would increase GDP and create jobs. EPA found, unambi guously, that stronger environm ental protection leads to a greater GDP boost and a larger immediate sp ike in job creation. While Option 1 would reduce economic output by $194 million, Option 3 would increase GDP by over $4.2 billion. 523

EPA wrongly concluded, however, that the in itial job creation impact of Option 3 is outweighed, over time, by jobs losses caused by ri sing electricity prices. As Prof. Ackerman and Dr. Stanton’s report explains, EPA’ s analysis is based on two signi ficantly flawed assumptions. First, EPA wrongly assumes that all compliance cost s will translate into higher electricity prices because electric generators will be able to pass on 100 percent of the rule’s costs to customers. In fact, a better assumption is th at, in deregulated states, only a bout half of compliance costs are likely to be passed on to consumers. In dere gulated energy markets, infra-marginal producers will absorb rising costs as reductions in producer surplus. Second, EPA arbitrarily assumes that cost recovery occurs at a constant annual rate from 2013 through 2056. But traditional utility rate regulation would impose a phase-in period for cost recovery so that compliance costs are recovered as they are incurred, not before. This pushes the cost recovery back in time compared to EPA’s estimate, thereby reducing its net presen t effect. After only partially correcting for these flaws, Ackerman and Stanton find th at Option 3 would create over 2,000 new jobs. 524

(4) Requiring Closed-Cycle Cooling Would Not Cause Air Pollution or Any Other Signif icant Adverse Environmental Impacts.

In the preamble to the proposed rule, EPA st ates that requiring closed-cycle cooling retrofits will impose energy penaltie s that result in increased air emissions of various pollutants to produce the same amount of power. 525 EPA argues that increased air pollution may render closed-cycle cooling infeasible on a local basi s in some places because it will have adverse

522 R. McCullough, Economics of Closed-Cycle Cooling in New York at 20 (June 3, 2010) (Exh. 112).

523 See Stockholm Environment Institute Report.

524 See Stockholm Environment Institute Report.

525 See 76 Fed. Reg. at 22,208-09.90 health effects and “it may be difficult or impossi ble to obtain air permits for cooling towers at existing facilities located in nonattainment areas or attainment areas with maintenance plans.” 526

In fact, as the Powers Report explains, overall air emissions from U.S. power plants will not increase as a result of closed-cycle cooling retr ofits. EPA admits that its estimates of future air pollution are overstated because they ignore the effects of new regulations that, by EPA’s count, will reduce power plant sulfur dioxide emissions by 71 %, nitrogen oxide emissions by 52%, and mercury emissions by 29%. Additionall y, over the past few decades, electricity production in the United States has consistently shif ted from coal plants to much cleaner natural gas-fired plants for economic reasons. 527 In reality, air emissions from U.S. power plants may decrease slightly less dramatically as a result of closed-cycle cooling retrofits, but they will not

increase.

Further, EPA should assume that any additi onal power needed to compensate for energy penalties at older, coal-fired power plants will come from natural gas-fired sources whose primary function is to provide load following and peaking power. In comparison to these older coal plants, air emissions from modern natural ga s-fired plants are excepti onally low. Additional power will also likely come from uprates at ex isting nuclear power plants and from the rising number of renewable energy source s in the United States. Generally, all of these sources have lower emissions than older existing facilities.

Air emissions also may decrease because some existing facilities will choose to repower to more efficient combined cycle natural gas as a consequence of this rule. In the Final Substitute Environmental Document for the Water Quality Control Policy on the Use of Coastal

and Estuarine Waters for Power Plant Cooli ng (“Calif. OTC Policy SED”), the State of California determined that, in the most realisti c scenarios, some existi ng facilities would respond to a closed-cycle coolin g mandate by repowering. 528 The assumption is likely realistic at the national level too. (The Californi a analysis is further explaine d below in Section III.E.5.c. of these comments.)

To avoid upgrading their plants, industry fr equently claims that closed-cycle cooling itself has significant adverse environmental impacts, including air emissions and visual, aesthetic, and noise-related concerns, as well as fogging and salt drift from cooling cells,, which, in their view, should prevent closed-cycle coo ling from being considered the Best Technology Available. That transparently false claim was re jected by EPA a decade ago in the context of the Phase I rule for new facilities. There industry ra ised all the same charges about these impacts, and EPA considered and rejected them (as did the reviewing court). In Riverkeeper I , the Second Circuit explained:

[The electric power industry argues that] by focusing on impingement and entrainment, the EPA ignored other adverse environmental impacts and failed to consider whether its regulations will yield a net environmental bene fit. ... As for other environmental impacts,

526 76 Fed. Reg. at 22,208 (col. 3).

527 See Powers Report.

528 See Calif. OTC Policy SED, at 119 (Exh. 3).91 [industry] does not attempt to demonstrat e what the EPA overlooked, except through vague and speculative references to “local air quality, water resources, [and] energy markets” (which, as noted[,] ... EPA did cons ider) and the suggesti on that closed-cycle cooling may require increased land use and have undesirabl e “aesthetic” impacts. The EPA considered [and rejected] all of the factors that [industry] now raises.... See, e.g.

, Public Comment & Response Nos. 062.026 at 1077, 056.012 at 927, 068.100 at 2137-41,

014.019 at 1098-1102. 529

Thus, the debate – if there ever was a debate – about the environmental superiority of closedcycle cooling was settled long ago.

(5) Requiring Closed-Cycle Coolin g Would Cause Some Facilities to Repower their Plants, Yieldi ng Additional Environmental

and Economic Benefits.

Experience has shown that when power co mpanies operating olde r, inefficient and, therefore, marginal plants are directed to upgrad e their cooling systems, they will often choose to repower rather than retrofit or shut down. Repowering a heavily-p olluting plant into a state-ofthe-art modern facility that can produce electricit y cleanly, efficiently and at lower cost is a winwin for the environment and the economy.

For example, as California developed a st atewide policy for phasing out once-through cooling in recent years, “four of the original 21 coas tal power plants have re-powered or are proceeding with re-powering projects that eliminat e the use of once-through cooling water, either in whole or in part – Humboldt Bay, Long Beac h, El Segundo, and Encina. A fifth closed-cycle cooled plant, Gateway, is being developed ad jacent to the existing Contra Costa Plant.” 530 These projects will produce more power using advanced control technology to reduce air emissions and virtually eliminate water withdrawals. Other examples exist, as well.

In New York, the state environmental agency generally seeks to requ ire new power plants to use dry cooling and existing or repowered power plants to use wet closed-cycle cooling. As a result, when an independent power company pur chased the Albany Steam Station on the Hudson River from a traditional utility in the early 2000s as a result of de-regulation, the company chose to repower the old plant and add closed-cycle cooling as part of the repowering, thereby reducing both its fish kills and air pollution emissions by mo re than 95 percent and increasing its capacity

from 400 MW to 750 MW. As New York State DEC explained:

Where impacts are large, the optimal appr oach from our standpoint is to repower an existing facility into a state-of-the-art power plant. The facility can thus be redesigned into an efficient new stati on (e.g. using combined cycle technology) that will reduce fuel use, greatly incr ease thermal efficiency and minimize

529 Riverkeeper I , 358 F.3d at 196-97 (internal citations omitted).

530 See Calif. OTC Policy SED, at 122. See also El Segundo Homepage website, Modernizing El Segundo’s Power Generating Station (Exh. 113) also available at http://www.elsegundorepowering.com/ and Sejal Choksi, “Alternatives to Once-Through Cooled Power Plants,” San Francisco Bay Crossings (July 2009) (Exh. 114), also

available at http://www.baycrossings.com/dispnews.asp?id=2192.92 impacts to air and water. ... The old 400 MW Albany Steam Generating Station, a once-through cooled plant was successfully repowered into the Bethlehem Energy Center (BEC), a 750 MW highly efficient, combined cycle station. Through use of the combined cycle proce ss and mechanical draft cooling towers, cooling water was reduced from approxi mately 500 MGD to less than 10 MGD. The new BEC began commercial operati on in mid 2005. Almost twice as much electricity is now being pr oduced at far lower impacts to the aquatic resource. 531

Similarly, the Bergen power stat ion, originally constructed in 1959 as a coal-fired plant at

the confluence of the Hackensack River and Ov erpeck Creek in Ridgefield, New Jersey, once withdrew more than half a billion gallons of river water per day through its once-through cooling system, but was repowered and converted from coal to gas in 1993. It has completely eliminated those withdrawals by retrofitting wi th closed-cycle cooling and r unning a pipeline under the river to a sewage treatment plant from which it now draws treated effluent for cooling.

Because repowering would play a highly signifi cant role in the market response to a closed-cycle cooling mandate, the net effect of Op tion 3 would very likely be a decrease in air pollution emissions, virtually across the board. This result is confirmed by an analysis conducted by the State of California in conj unction with the development of its statewide BTA policy. In a

section entitled “Effects on Elect ric Reliability,” the Final Subs titute Environmental Document for the Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling explained that, while “predi cting the future operation of any one plant is conjecture at best,” when looking at the industr y as a whole “certain trends are evident,” in particular that, faced with a requirement to install closed-cycle cooling, plant owners may “retrofit their OTC [once-through-cooled] plants with an alternative form of coo ling, [b] repower their plants by essentially building a new plant using alternative cooling and then decommissioning the old one, or [c] shut the plant down, either permanently a nd convert to another use, or temporarily while waiting for more favorable economic s for repowering or retrofitting.” 532 The environmental

assessment continued:

The most realistic scenarios examined, in which some OTC plants would be retired while others repower or convert their cooling systems, showed potential for significant benefits to the environment because the overall power sector would be more efficient and produce fewer emissions , and because marine ecosystem impacts caused by use of OTC technology would be greatly reduced. 533

Analyzing one of these “most realistic scenarios,” termed “Scenario 3,” in which all fossil fuel units are repowered to combined-cycle systems with dry cooling (as several plants in California already have) and the nuclear units are retrofitted to wet cooling, with replacement generation provided by new combined -cycle units, California estimated that fuel usage by power plants and resulting emissions of SO2, NO2, CO2, CO, TOG, and ROG would all decrease, by 3

531 New York State Department of Environmental Conservation, Aquatic Habitat Protection website, at 4 (Exh. 115), also available at http://www.dec.ny.gov/animals/32847.ht ml (last visited, Aug. 2011).

532 Calif. OTC Policy SED, p. 118 (emphasis added).

533 Calif. OTC Policy SED, at 119 (emphasis added).93 percent to 26 percent over current levels. 534 Those results are show n in the following table, which appears on page 110 of the Calif. OTC Policy SED:

Accordingly, requiring closed-cycle cooling would cause some facilities to repower their plants, yielding additional environmental and econo mic benefits, particular ly reductions in air pollution emissions.

3. Option 2’s Entrainment Standard Is Fa r Superior to Option 1 and Option 4 in All Respects.

While Option 3 saves more fish and other aq uatic organisms than Option 2 (the option which requires closed-cycle cooling for all facilitie s with an actual intake flow greater than 125 MGD), the costs of Option 3 and therefore the overall burden on industry is not much greater than that of Option 2. Further, the administrativ e burden on states is least for Option 3 because it does not require extensive consideration of tech nological, biological and economics studies as do Options 1 and 4 (to a tremendous degree) and Option 2 (to a some what lesser degree). Option 2, however, is far superior to Opti ons 1 and 4, and would provide some, but not all, of the benefits of Option 3 and avoid some, but not all, of the fatal flaws of Options 1 and 4.

4. EPA Should Shorten the Entrainment Compliance Timelines.

EPA’s extended implementation schedule for closed-cycle cooling retrofits is unnecessarily long. EPA’s proposed schedule for in formation submittal is entirely too long and should be cut in half. As EPA noted in the Propo sed Rule, facilities with a DIF greater than 50 MGD were previously subject to the withdrawn Phase II rule a nd therefore should have already compiled much of the proposed application data which can be used to meet many of the information submittal requirements. 535 Furthermore, the start-to-finish application process for

534 Calif. OTC Policy SED at 110.

535 See 76 Fed. Reg. at 22,254 (col. 2).94 closed-cycle cooling conversions should be no more than 24 months. Competition of closedcycle cooling retrofits should be required no later than 36 months after approval of the application at fossil plants, and no more than 48 m onths after approval at nuc lear plants (nuclear plants may need additional time to synchronize the retrofit outage with a refueling outage). 536
The attached engineering report concludes that if EPA applies the suggested downtime estimates

of 1 and 2 months for fossil and nuclear plants respectively, there is no technical justification for EPA’s proposed extended implementation sche dule for closed-cycle cooling retrofits. 537

This schedule is consistent with what EP A required for the Brayton Point plant, where the final compliance order required the compa ny to complete construction of closed-cycle cooling within 29 months of getti ng all permits and to fully meet the closed-cycle-cooling-based permit limits seven months after that, for a to tal of 36 months from permitting to final compliance. 538

5. Any Variance EPA Includes as Part of a Categorical Entrainment Standard Must Clearly Delineate What Issues May Be Considered by the Director and How They Are to Be Considered.

Although OMB deleted it, in the version of the Proposed Rule EPA sent to OMB shortly before proposal, EPA stated:

The Agency could have developed a propos ed rule based on closed-cycle cooling as BTA that provides exceptions to take into account each of these four factors [i.e., energy reliability, air emissions, land availability, and remaining useful plant life] individually. In other words, EP A could have developed an option that would require closed-cycle cooling, but the rule would also necessarily provide numerous alternatives and exceptions to specifically address each of the identified

factors. 539

As discussed above, EPA should promulgate a rulemaking option that requires closedcycle cooling (e.g., Option 3), and to the extent that such option include s a variance, EPA should carefully tailor that variance and set rules for the Director to follow in applying that variance. 540
In particular:

• The burden of proof must be placed square ly on the permit applicant to demonstrate entitlement to any variance.

536 See Powers Report.

537 See Powers Report.

538 U.S. EPA, Region I – New England, In the Matter of Dominion Energy Brayton Point, LLC, Brayton Point Power Station, Somerset, Massachusetts, NPDES Permit No. MA0003654, Docket No. 08 -007, Findings and Order for Compliance at 6 (Exh. 116).

539 Version of Proposed Rule Sent to OMB, p. 139 of 383 (Exh. 85).

540 It should be noted that EPA’s Fundamentally Different Factors (FDF) variance is designed to operate in both directions. That is, the FDF variance allows national standards to be made “ either more or less stringent ” on application by “[a]ny interested person.” 40 C.F.R. § 125.30(b) (emphasis added).95 • There should be no cost-benefit variance or any other site-sp ecific cost-benefit analysis.

• Any calculation baseline must use an “act ual flow” not a “full flow” operational

baseline.

• Directors should be directed to find that there is adverse environmental impact (AEI) whenever there is impingement or entrai nment and, further, AEI is not to be measured at the fish population level, or with adult-equivalent calculations such as age-1 equivalency.

• Fishery managnent models may not be used to assess the effects of impingement and

entrainment.

• Density dependent models and the ecologi cally baseless concept of “surplus production” may not be considered in permitting proceedings.

• All species must be considered.

• Species of special concern, e.g. , not only threatened and en dangered species, but also those awaiting listing and other sensitive, ke ystone or otherwise important species are entitled to enhanced protection.

• Arguments that some of entrained or impi nged fish were dead before they were trapped by the intake structure may not be c onsidered due to the difficulty in proving

this.

• The degraded quality of source or receivi ng waterways may not be considered in permitting proceedings.

• Other aspects of source or receiving water quality may be considered only to make technology-based standard stri cter, not to relax them.

• No waters of the U.S. are exempt from Clean Water Act protection or are deserving of lesser protection than others.

• Waterways that have been dammed by plant owners for use as cooling water

reservoirs remain waters of the U.S.

• The impact on aquatic organisms from other sources may not be considered as a reason not to regulate intake st ructures or as a reason to re gulate them less stringently.

• Entrainment survival claims may not be considered.

• As the courts have clearly held, restoration or mitigation measures may not be considered under Section 316(b).

• Section 316(b) requirements must be consid ered independently of any Section 316(a) variance application.

• The compliance costs or social costs to be considered may include only capital expenditures, operation and maintenance, and energy penalty, not speculative,

indirect add-on costs.96 • Arguments by permit applicants related to ai r quality issues must be evaluated by the Director in the context of the fact that, as EPA noted, most impacts from closed-cycle cooling itself are so localized as to occur wholly on the property of the plant itself; 541 and the fiinal air permitting analysis should be evaluated with the expectation that it would be the last step in the permitti ng process (due to ongoing changes in the

classification of areas in " non-attainment" status and the regulatory procedure for air permits which allows only for a one-year duration before a new air permit must be sought).

• Arguments that the power i ndustry is entitled to speci al treatment may not be

considered.

• Projections of a plant’s remaining useful lif e should not be considered unless a plant operator makes a binding and enforceable commitment to close a plant within a 5- year time frame.

• Arguments that retrofits should not be requi red at a plant that was recently built or refurbished may not be considered.

• Arguments that an older Section 316(b) de termination should not be revisited now

cannot be considered.

• The implementation time for BTA measures cannot be considered as a reason for requiring a less protective t echnology over a more protective one; instead, less protective technologies that can be impleme nted more rapidly should be considered as interim measures to reduce impacts wh ile more protective technologies are being

installed.

C. Although the Establishment of National Categorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and Problematic in Numerous Respects.

1. EPA Should Establish a National Cate gorical Impingement Standard Based on Closed-Cycle Cooling.

In the Proposed Rule “EPA concluded that closed-cycle cooling reduces impingement and entrainment mortality to the greatest extent.” 542 As discussed above, EPA should set a national standard based on closed-cycle cooling for entrainment and establish a similar standard as the first component of the rule ’s impingement standards, as well. 543 Moreover, as explained below, while EPA did propose national standard s for impingement, those standards are also insufficient because EPA did not primarily base them on velocity reduction.

541 76 Fed. Reg. at 22,209 (cols. 1-2).

542 76 Fed. Reg. at 22,207 (col. 1).

543 It should be noted, however, that even though “virtu ally all facilities with wet cooling towers have a maximum intake velocity of 0.5 feet per second” (76 Fed. Reg. at 22,258 (col. 2)), a closed-cycle cooling standard is not alone sufficient for impingement. Id

.97 2. EPA’s Rejection of the 0.5 Ft/S Veloci ty Limitation as the Primary National Standard Is Illegal.

a. EPA Has Found in Each Previous Section 316(b) Rulemaking, and Again for this Rule, that a 0.5 Ft/S Velocity Limitation Would Protect Approximately 96 Percent of Fish from Impingement and that Many Existing Facilities Already Meet that Standard.

As EPA has explained, “impingeme nt is generally correlated to three factors: intake flow, intake velocity, and fish swim speed” and “[t]he latter two factors are closely related, as the ability of fish to evade impingement depends on the swimming ability of the individual fish and the intake velocity against which it is attempting to escape. 544 Based on this analysis, “EPA has consistently recognized that regu lating the intake velocity at cooling water intake structures (CWIS) is an effective way to minimize impingement impacts.” 545

Accordingly, in the Phase I rule, EPA set a na tional categorical sta ndard requiring all new

facilities to have a maximum de sign intake velocity of 0.5 f eet per second (ft/s or fps). 546 EPA established 0.5 ft/s as the appr opriate minimum velocity requirement based on technical and scientific literature, state and fe deral studies, and an analysis of data from studies on fish swim speeds suggested that a 0.5 ft/s velocity would protect 96 percent of the tested fish. 547 EPA documented that 73 percent of manufacturing facilities and 62 per cent of power plants constructed in the prior 15 years met the 0.5 ft/s through-screen velocity requirement. 548

In addition, the record shows that in 2000, th e Electric Power Research Institute (EPRI) submitted a report in which it “agreed that in take velocity was an appropriate regulatory criterion, and ... that a limit of 0.5 fps was a useful threshold for screening out significant impingement events at CWISs. 549 Nevertheless, in Riverkeeper I , the power industry (UWAG) challenged the velocity requirement, arguing that there was insufficient su pport in the record for a through-screen velocity limit of 0.5 ft/s. 550 The Second Circuit reject ed that challenge, finding

that “EPA’s choice of velo city limit was reasonable.” 551

“The Phase II rule used the same data, analyses and conclusions presented in Phase I to support a compliance alternative wh ere an intake at a facility with a design through-screen velocity of 0.5 fps meets the impingement requirements.” 552 Similarly, the proposed Phase III rule utilized the same regulatory framework as the Phase II rule, including the 0.5 fps intake

544 Memo to Paul Shriner, EPA from Kelly Meadows, Tetra Tech, Subject: Analysis of sw im speed data (hereinafter “Swim Speed Data Memo”) December 8, 2008, at 1 (DCN 10- 6705A) (EPA-HQ-OW-2008-0 667-0660) (Exh. 117);

s ee also, 69 Fed. Reg. at 41,612 (col. 2); see also Pisces Report.

545 Swim Speed Data Memo at 1.

546 See 40 C.F.R. § 125.84(b)(2) and (c)(1).

547 66 Fed. Reg. at 65,274 (cols. 2-3).

548 66 Fed. Reg. at 28,864 (col. 3.); see also Swim Speed Data Memo at 3, citing DCN 2-030.

549 Swim Speed Data Memo at 3.

550 Riverkeeper I , 358 F.3d at 198.

551 Id. , 358 F.3d at 199.

552 Swim Speed Data Memo at 3.98 velocity threshold. 553 “In the final Phase III rule, EPA opted not to regulate la nd-based facilities, but continued to impose the in take velocity requirements on certain offshore facilities.” 554
Industry did not specifically cha llenge the 0.5 ft/s standard in Riverkeeper II or in its challenge to the Phase III rule, ConocoPhillips, et al. v. EPA

.

For the current rulemaking, EPA briefly re-exami ned the basis for the 0.5 ft/s threshold to

ensure that it was still valid and conducted additional screening analyses. Based on that updated examination, EPA’s technical consultant concluded:

In reviewing the swim speed data in the record, the previous conclusions continue to be supported by the data. ... 0.5 f t/sec through-screen velocity would be protective of 96% of species. ... Give n the potential for screen clogging and debris loading (which would reduce the open area of the screen and increase the through-screen velocity even further), th e 0.5 fps threshold also provides for an appropriate safety margin for aquatic orga nisms. ... Analyses were conducted to determine if the velocity threshold s hould vary by waterbody type. The swim speed data from the EPRI report was plot ted by fish assemblage, a categorization of fish species by waterbody type (e.g., Paci fic Ocean, rivers in the Eastern U.S., etc.). ... These plots did not show any clear differentiation of swimming ability

between fish in the various waterbodies nor did any waterbody t ype appear to be any more vulnerable than another; it is th erefore reasonable to conclude that the 0.5 fps national intake velocity limit is appropriate for all waterbody types. 555

EPA thus concluded that “a design through-sc reen velocity of 0.5 feet per second would be protective of 96% of motile organisms” and would therefore be “better than the selected technology,” i.e. , modified travelling screens. 556

In addition, EPA’s updated analysis also show ed, once again, that “many intakes already meet this standard, thereby reducing the burden of meeting the requirement.” 557 Specifically, “[a]ccording to data from EPA’s 2000 industry questionnaire, approximately 18% of intake structures meet the 0.5 fps threshold. Another 21% are less than 1.0 fps.” 558 Moreover, “many intake technologies installed today (e.g., cylindric al wedgewire screens) are specifically designed to meet the 0.5 fps threshold.” 559

553 Id.

554 Id., citing 125.134(b)(2).

555 Id. at 4.

556 See 76 Fed. Reg. at 22,204 (col. 3). As discussed in the Pisces report attached as Appendix B, while the 0.5 ft/s velocity limit is more protective than modified travellin g screens, it may not be as protective as EPA believes because not all fish with swim speeds faster than the velo city of the intake structure can and will actually avoid the intake. Thus, a 0.5 ft/s velocity limit should be one primary component of the impingement standards, but it is not

itself sufficient.

557 Swim Speed Data Memo at 4.

558 Swim Speed Data Memo at 4, citing DCN 4-4023C “Preliminary Data Analyses Using Responses from the Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures (Draft).”

559 Swim Speed Data Memo at 4.99 b. EPA Lacks a Legitimate Legal or Evidentiary Basis for Rejecting the 0.5 Ft/S Velocity Limit.

Having found that a 0.5 ft/s velocity limit is an appropriate and highly protective standard, EPA did not, however, require existing fac ilities to meet it. Instead, the Proposed Rule gives facilities the option of choosing to m eet the 12-percent-annual/31-percent-monthly impingement mortality reduction standard, which is a less protective standard and is inferior in many ways, as discussed below. EPA states that it did so because “EPA’s record shows modified traveling screens are available for all facilities, whereas reduced intake velocity may

not be available at all locations.” 560 That is illegal for at least two reasons. First, as discussed above, EPA applied an unauthorized interpretati on of the statutory term “available” and an improper approach to BTA. Second, analysis or evidence in the record to support a conclusion that reduced intake velocity is not cabable of being implemented at all locations appears to be lacking. To the contrary, the record evidence show s not only that 18 percent of intake structures presently meet the 0.5 ft/s velo city limit but also that many existing facilities can meet it. 561 As the Second Circuit stated in upholding that limit in Riverkeeper I : “The fact that a minority of facilities do not presentl y meet this requirement, of cour se, says nothing about whether the required technology is the ‘b est’ or ‘available.’” 562

3. The 12 Percent/31 Percent Impingemen t Mortality Reduction Requirement Is Problematic In Numerous Respects.

As noted above, the 0.5 ft/s ve locity limit is more effectiv e than the technology on which the 12/31 percent standard is based, assuming that bot h restrictions operate as they are intended. Additionally, because those two standards work in very different ways, the 12/31 percent limit is also inferior in other ways. A velocity limit allo ws fish to swim away from the intake and avoid impingement altogether. The 12/31 percent limit allows an unlimited number of fish to be impinged, and instead requires that enough impinged fi sh be returned to the waterbody such that no more than 88 percent (the recipr ocal of 12 percent) die over th e course of a year and no more than 69 percent (the reciprocal of 31 percent) die in any given month.

A standard based on reduced impingement is superior to one based on impingement mortality because the former avoids the difficu lties and uncertainties of determining how many fish of which species have survived impingement. In addition, the former also avoids sub-lethal harm to impinged fish. For many reasons, it is far more practical, certain and effective to address an environmental problem before it happens (whi ch, in this case, means preventing impingement through a velocity limit) rather th an to let it happen and attemp t to mitigate the consequences (which, in this case, means allowing unlimited impingement and trying to return the impinged fish to the waterbody alive). In this regard, the velocity limit is simple, effective, and relatively

560 See 76 Fed. Reg. at 22,197 (col. 2).

561 TDD, Ch. 6.

562 358 F.3d at 199.100 easy to measure compliance with, while the impingement mortality limit is not. Several related problems emerge here, as discussed below.

For a more extensive discussion of the probl ems with the Proposed Rule’s 12/31 percent standard and the associated monitoring requireme nts, please see the repor t on biological issues prepared by PISCES Conser vation, Ltd., and attached hereto as Appendix B.

a. Impingement Mortality Monitoring Is Inherently Difficult, Controversial, and Uncertain.

Facilities seeking to meet the 12/31 percent standard must develop and submit a “Proposed Impingement Mortality Reduction Pl an.” The plan must include a proposed biological sampling protocol for monitoring bot h impingement and impingement mortality and thereby demonstrating that the 12 /31 percent standard is being met. Specifically, the plan must propose, at a minimum: (1) the duration and frequency of monitoring; (2) the monitoring location; (3) the organisms to be monitore d; (4) the method in which naturally moribund organisms would be identified and taken into account; and (5) a latent mortality assessment procedure. This last item must involve a method for handling the organisms in a collection device “as little as possible,” tran sferring them to a “holding ar ea with conditions as close as practicable to the source water, ” and retaining them for 48 hours, at which time the number of dead organisms would be counted. 563 EPA envisions that the permitting authority would then review and approve the Impingement Mortalit y Reduction Plan, after making a determination

that each of these issues has been properly addressed.

In practice, however, these issues are enorm ously complicated and controversial and will inevitably lead to disputes among the permitti ng authority, the permittee and others. As EPA acknowledges, “there are no sta ndard methods for conducting impingement and entrainment studies and that there can be variability in designing a sampling plan between sites.” 564 That variability, along with the complexity of the biol ogical issues involved, will inevitably lead to disputes, delays and uncertainty. For example, because sampling is an expense that plant operators will want to minimize, they have every incentive to propose minimal sampling frequencies and to scale down the extent of m onitoring in every other way. Unfortunately, permit writers will often oblige them so as to not burden industry or ratepayers. Moreover, while there is significant potential for disputes over the design of the sa mpling and the interpretation of the results, state agencies (as well as the gene ral public) lack the resour ces to fully and properly evaluate the sampling plans being submitted.

In particular, disputes are hi ghly likely to emerge with respect to the number of sampling events, the species to be monitored, how to properly account for period s when the plant is running at low capacity or when fish are relativ ely abundant or sparse in the waterbody and whether organisms died as a result of impingeme nt or are naturally moribund (or plant operators may argue that organisms died as a result of th e transferring and holding process). Especially controversial and fraught with difficulty is th e latent mortality determination, whereby plant

563 76 Fed. Reg, at 22,257 (col. 2).

564 Id. at n.103.101 operators must seek to retain the samples for 48 hours in a manner that will minimize mortality from the holding itself. Significantly, latent mo rtality may occur after more than 48 hours, and while EPA is not proposing a longer latency period because of the potential for greater mortality as a result of the holding, the fact remains that mortality which occurs 72 or 96 hours after the impingement event would not be measured at all under the Proposed Rule . Consequently, the sampling results are likely to be disputed, le aving substantial uncertainty as to whether impingement mortality has been actually redu ced to the levels suggested by monitoring. 565

In contrast, determining the maximum veloc ity of an intake structure is far more straightforward. While it is unlikely that 96 perc ent of fish will be protected at every intake structure meeting the velocity limit, the statistic al analysis underpinning that figure has already been conducted by EPA, used in four rulemakings , and upheld by the courts, and thus there is no reason to revisit it on a plant-sp ecific basis. For that reas on, extensive biological monitoring with latency holding periods is not required to determine compliance with the velocity limit, no sampling protocols to be deve loped, assessed, debated, approve d, and ultimately disputed, and no holding period for assessment of latent mortality.

b. The 12 Percent/31 Percent Standa rd is Further Weakened by the Provision Allowing the Director to Exclude Certain Species from the

Standard.

While the Proposed Rule provides that compliance with the entrainment and impingement provisions means achieving any appli cable limitations “for all life stages of fish,” 566 the Proposed Rule also contains a provision stating that “the Director may determine invasive species, naturally moribund species, and other specific species may be excluded from any monitoring, sampling or study re quirements of 40 CFR 122.21 and § 125.94.” 567 This provision will invite plant operators and some regulators to seek to exclude certain species – in addition to species deemed to be “invasive” 568 or organisms that are determined to be naturally

moribund – from the calculations in order to ma ke a non-compliant faci lity appear to be compliant. For example, because certain fish speci es are more delicate th an others and therefore less likely to survive impingement, by excluding those species from the monitoring requirements a facility that was not meeti ng the 12/31 percent limit would s uddenly be deemed to be in compliance. Indeed, it is unclear whether th e 12/31 percent standard can be met at every location using modified travelling screens unless the plant operator is able to convince the

565 Relatedly, because the 12/31 percent standard allows plants to impinge as many fish as they can it provides no incentive to reduce impingement, only impingement mortality. In fact, because the baseline is the number of fish impinged, the more fish that a plant impinges, the more it can kill. That may give permitees a perverse incentive to increase rather than decrease impingement. While plan t operators would not likely seek to increase their impingement across the board, one can envision circumstances where increasing impingement of relatively robust fish species more likely to survive impingement (or samp ling when those species are more likely to be present) becomes a strategy for increasing a plant’ s average impingement survival results.

566 Proposed 40 C.F.R. § 125.94(b)(1)(i), 76 Fed. Reg. at 22,282 (col. 3) (achieve impingement standards for all life stages of fish). See also id. §§ 125.94(b)(1)(iii)(A), 76 Fed. Reg. at 22 ,282 (col. 2-3) (the owner of a facility must count as impinged “any fish” carried over or removed from a screen).

567 Proposed 40 C.F.R. § 125.98(c)(6) (emphasis added), 76 Fed. Reg. at 22,287 (col. 3).

568 Allowing “invasive” species to be ex cluded is also problematic because there is no unani mity as to what species

are considered invasive or whether all of those species are harmful.102 director to exempt delicate sp ecies that would otherwise incr ease impingement mortality above the specified levels. In contrast , the 0.5 ft/s velocity limit will prot ect 96 percent of all fish. As discussed below, the director should not be allowed to exclude species from impingement monitoring or any other study, but the potential for such exclusion is further reason why the velocity limit is far more protective.

4. EPA Should Select the 0.5 Ft/S Velocity Limit as the Impingement Standard

for the Final Rule.

In the Final Rule, EPA should abandon the 12-percent-annual/31-percent-monthly impingement mortality standard and instead set a national standard for impingement mortality at all existing in-scope facilities based on the 0.5 ft/s velocity limit. In addition, EPA should retain the additional fish-return, fish-entrapment, and she llfish barrier net requirements currently in the proposed rule. The maximum time frame for comp liance should be shorte ned to three years or

less. To the extent that some covered facilitie s might not be capable of meeting the velocity limit, a properly-crafted and properly-limited vari ance, consistent with that allowed under the

Clean Water Act in these circumstances would be appropriate. Acco rdingly, 40 C.F.R. § 125.93 (a) should read:

§ 125.93 Compliance

. (a) The owner or operator of a facility subject to this subpart must comply with the applicable BTA standards fo r impingement mortality in § 125.94(b) as soon as possible based on the schedule of requirements set by the Director, but in no event later than [date 3 years after the effective date of the final rule].

And 40 C.F.R. § 125.94(b) should read:

§ 125.94 As an owner or operator of an existing facility, what must I do to comply with this subpart? (b) BTA Standards for Impingement Mortality . By the dates specified in § 125.93(a), the owner or operator of an existing facility subject to this subpart must achieve the impingement mortality standards provided in paragraphs (b)(1) and (2) of this section:

(1) The owner or operator of an existing facility must demonstrate to the Director that its cooling water intake system has a maximum intake velocity of 0.5 feet per second.

(2) In addition, you must meet the following criteria:

(i) The maximum velocity must be demonstrated as either the maximum actual intake velocity or the maximum design intake velocity as water passes through the structural components of a screen measured perpendicular to the screen mesh;103 (ii) The maximum velocity limit must be achieved under all conditions, including during mi nimum ambient source water surface elevations and during periods of maximum head loss across the screens or other devices during normal operation of the intake structure. If the intake does not have a screen, the maximum intake velocity perpendicular to the opening of the intake must not exceed 0.5 feet per second during minimum ambient source water surface elevations;

(iii) Each intake must be operated and maintained to keep any debris blocking the intake at no mo re than 15 percent of the opening of the intake. A demonstration that the actual intake velocity is less than 0.5 feet per second through velocity measurements will meet this requirement;

(iv) The owner or operator of a facility that withdraws water from

the ocean or tidal waters must also reduce impingement mortality of shellfish at a minimum to a level comparable to that achieved by properly deployed and maintained barrier nets. Passive screens such as cylindrical wedgewire screens, and through-flow or carry-over free intake screens such as dual-flow screens and drum screens, will meet this requirement;

(v) The owner or operator of a facility that employs traveling screens or equivalent active screens must incorporate protective measures including but not limited to: modified traveling screens with collection buckets designed to mini mize turbulence to aquatic life, addition of a guard rail or barrier to prevent loss of fish from the collection bucket, replacement of screen panel materials with smooth woven mesh, a low pressure wash to remove fish prior to any high pressure spray to remove debris on the ascending side of the screens, and a fish handling and return system with sufficient water flow to return the fish to the source water in a manner that does not promote predation or re-impingement of the fish; and

(vi) The owner or operator of the facility must ensure that there is a means for impingeable fish or shellfish to escape the cooling water intake system or be returned to the waterbody through a fish return system. Passive screens such as cylindrical wedgewire screens, and through-flow or carry-over free intake screens such as dual-flow screens and drum screens, will meet this requirement.

In addition, since fish with swim speeds faster than 0.5 ft/s may nevertheless be impinged, particuarly at la rger intake structures, 569 the rule should also require facilities to

569 See PISCES report, Appendix B. For example, even a fast-swimmig fish may not be able to perceive that it is being impinged and in which direction safety lies until it is too late. Id

.104 conduct biologival monitoring to verify that the 0. 5 ft/s limitation is effective. Such monitoring would not involve an assessment of impingement mortiality and would not require holding fish for a latency period, but would instead be used to verify whether fish species and life stages with faster swim speeds are being impinge d in any appreciable numbers.

D. All Repowered, Replaced, or Rebuilt Facili ties Must Be Subject to the Same ClosedCycle-Cooling-Based Requirements as New Units at Existing Facilities.

1. Although the Closed-Cycle Cool ing Standard for New Units at Existing Facilities Should Be Reta ined, the Definitions of New Unit and Existing Facility Are Problematic.

In Phase I, EPA required new facilities to reduce intake flows to a level commensurate with the performance of closed -cycle cooling systems, but de ferred regulation of all existing facilities – meaning all facilities that did not fi t EPA’s strict definiti on of a “new facility” 570

– until the present rule. 571

EPA promulgated a two-part definition of a new facility. The first part of the “new facility” test essentially rest ates EPA’s definition of a “new source” of water pollution that is subject to new source performance sta ndards under Section 306 of the Act. 572 In particular, a facility is only considered new if:

(i) It is constructed at a site at which no other source is located; or

(ii) It totally replaces the process or pr oduction equipment that cau ses the discharge of pollutants at an existing source; or

(iii) Its processes are substant ially independent of an exis ting source at the same site. 573

Under the second part of EPA’s test, a ne w facility also ha s another essential characteristic: it either uses a new cooling wa ter intake or an exis ting intake “whose design capacity is increased to accommodate the intake of additional cooling water.” 574

570 An existing facility is any facilit y that is not a “new facility.” See proposed 40 C.F.R. § 125.92, 76 Fed. Reg. at 22,281 (col. 3) (“ existing facility means any facility that commenced construction . . . on or before January 17, 2002; and any modification of, or any addition of a unit at such a facility that is not a new facility at § 125.83.”); see also

id. at 22,193 (col. 2) (“EPA’s definition of an ‘existing fac ility’ in today’s proposed regulation is intended to ensure

that all sources excluded from the definition of new fac ility in the Phase I rule are captured by the definition of existing facility in this proposed rule.”).

571 See 66 Fed. Reg. at 65,256 (col. 3).

572 See 40 C.F.R. §§ 122.2, 122.29.

573 See 40 C.F.R. § 125.83. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same ge neral type of activity as the existing source. Id.

574 40 C.F.R. § 125.83.105 Thus, under EPA’s Phase I rule, a facility is only “new” if it is both a “new source” and also uses a new or expanded intake. 575 In 2001, when it promulgated the Phase I rule, EPA reported that some commenters expressed a “well founded” concern with th is two-part definition because “an existing facility could rebuild its wh ole facility behind the cooling water intake structure and not be subject to the re quirements applicable to a new facility.” 576 EPA admitted that, indeed, it was possible to “completely de molish an existing source, replace it with a smaller-capacity new source, and not be regulated under today’s rule as a new facility.” 577
However, EPA promised that to the extent any commenters “assert some inequity of treatment between new facilities and certain existing faci lities, EPA will address this comment when it addresses what substantive requireme nts apply to existing facilities.” 578

In the current rule, EPA proposes to bring new units at existing facilities up to the level of control applied to new facilities. 579 In the preamble, EPA explains that a new unit at an existing facility should be treated like a new unit at a new facility for several reasons:

1. “As new units are built at existing facilities to provide additional cap acity, facilities have the ideal opportunity to desi gn and construct the new units without many of the additional expenses associated with retrofitti ng an existing unit to closed-cycle.”

2. “The incremental downtime that can be asso ciated with retrofitting to closed-cycle cooling is avoided altogether at a new unit.”

3. “In addition, when new units are added, the condensers can be configured for closedcycle, reducing energy requirements, and high efficiency cooling towers can be designed as part of the new unit, allowing for instal lation of smaller cooling towers. Thus, the capital costs for closed-cycle cooling at ne w units are lower than the capital costs for once-through cooling. These advantages may no t always be availabl e when retrofitting cooling towers at an existing unit.”

4. “In consideration of the fact that additional unit construction decisions rest largely within the control of the individual facility, EPA d ecided that subjecting new units to the same national BTA requirements as those applicable to new facilities is warranted.” 580

In theory, all new units will now be required to approximate the performance of a closedcycle cooling system – whether they are built at ne w or existing facilities. But in practice, many new units will not be subject to environmentally protective requirements because, in defining a “new unit,” the proposed rule on ly counts additional units added to an existing facility to increase the facility’s capacity. The definition of “new unit” excludes all other major changes at

575 40 C.F.R. § 125.83, see also 66 Fed. Reg. at 65,259 (col. 1).

576 66 Fed. Reg. at 65,286 (col. 2).

577 Id

.
578 66 Fed. Reg. at 65,286 (col. 1).

579 See 76 Fed. Reg. at 22,196 (col. 1-2) (“The requirements for new units are modeled after the requirements for a new facility in the Phase I rule.”).

580 76 Fed. Reg. at 22,196 (col. 2).106 an existing facility, including total replacements and repowerings, and even if the replacement unit adds capacity compared to the prior unit:

new unit refers to newly built units added to increase capacity at the facility and does not include any rebuilt, re powered or replacement unit, including any units where the generation capacity of the new unit is equal to or greater than the unit it replaces.” 581

This is precisely the problem that commenter s identified in 2001 a nd that EPA indicated

it would address in this rule: unde r the proposed rule, a facility operator can completely demolish every part of a site behind the cooling water intake st ructure and rebuild an entirely new plant, yet potentially evade the pr otective standards imposed upon all other new units.

EPA’s decision to call only units added in or der to increase a facili ty’s capacity “new

units” and exclude other kinds of new units at existing facilities from comparable regulation is irrational, arbitrary, and capricious. 582 Replacements and repowerings are construction projects in which all of the significant eq uipment at an “existing facility” is removed and completely new equipment is installed. The electric genera ting unit that emerges from a replacement or repowering is, by any reasonable standard, a “new unit.” Thus, replacement and repowered sites are new units and should be subject to the same standards as “additional” units.

Neither the rule, nor the preamble, provide any justification for si ngling out “additional”

units as “new units” and not treat ing replaced, repowered, or rebui lt facilities as new units. The reasons that EPA gave fo r strictly regulating additional units apply equally to total replacements and repowerings (as do the reasons EPA gave for strictly regulating new facilities back in 2001, in the Phase I rule). The rule irrationally distinguishes betw een two total replacements of a facility. If an owner replaces every inch of th e site, it is a new facility. But if the owner completely demolishes and replaces everything at the existing facility except for the cooling water intake structure itself, it is an existing fa cility. Yet all the equipment necessary to meet a closed-cycle cooling standard (cells, different piping, etc.) is built behind the cooling water intake structure. Significantly, EPA’s technical experts agreed th at the reasons for considering an additional unit to be a new unit apply equally to replacements and repowerings, but they were overruled by OMB. OMB has not justified its pr oposed change, and in any case the office does not have technical expertise thus its technical decision merits no deference. For EPA to accept OMB’s unjustifiable modification to the rule w ould be arbitrary and unr easonable; it is also inconsistent with Congress’s intent to control mortality at cooling water intakes.

581 Proposed 40 C.F.R. § 125.92, 76 Fed. Reg. at 22,282 (col. 1-2) (emphasis added).

582 In Riverkeeper II , the Second Circuit found that EPA had illegally “expanded the scope of what may be classified as a ‘new unit’ while narrowing the Phase I defi nition of ‘stand-alone’ facility. Moreover, by including a potentially expansive definition of ‘new unit’ in the preamble to the Phase II Rule, the EPA has interpretively modified the definitions that appeared in the Phase I Rule without providing interested parties an opportunity for

notice and comment.” 582 EPA has (at the direction of OMB) once again improperly used the definitions of “new” and “existing” to narrow the class of facilities requi red to meet a closed-cycle-cooling-based standard.107 2. All Repowered, Replaced, or Rebuilt Facilities Must Be Subject to the Same Closed-Cycle-Cooling-Based Requirements as “New Units at Existing Facilities.”

Fixing the new units provision is simple : EPA should restore the Section 125.92(r)

definition of “new unit” contained in the vers ion of the Proposed Rule it submitted to OMB shortly before the proposal, which read:

(r) New unit means any addition of an operating unit at an existing facility where the construction begins after [insert effective date of this rule], including but not limited to a new unit added to a new or existing facility for the same general industrial operation, but that does not otherwise meet the definition of a new facility at § 125.83. New unit includes any additional, rebuilt, repowered, or replaced unit where that unit is not subject to the requirements of Subpart I. For purposes of this definition, rebuilt refers to major modifications affecting operation of the cooling water intake structure such as replacement of the turbine, boiler, or condensers. 583

In addition, EPA should restore the Secti on 125.94(d)(1) and (2) “BTA Standards for Entrainment Mortality for New Units at Existing Facilities” contained in the version of the Proposed Rule it submitted to OMB shortly befo re proposal, with an addition required by the Riverkeeper I decision (shown in italics). The necessity for that addition is further explained in Section V, below, in the context of the Phase I rule:

(d) BTA Standards for Entrainment Mo rtality for New Units at Existing

Facilities. The owner or operator of a new unit at an existing facility must achieve the entrainment standards provided in eith er § 125.94(d)(1) or § 125.94(d)(2). (1) The owner or operator of a facility must reduce actual intake flow (AIF) at a new unit, at a minimum, to a level commensurate with that which can be attained by the use of a closed-cycle reci rculating system for the same level of cooling. The owner or operator of a facility with a cooling water intake structure that supplies cooling water exclusively for operation of a wet or dry cooling tower(s)

and that meets the definition of closed- cycle recirculating system at 125.92(c) meets this entrainment mortality standard. (2) The owner or operator of a facility must demonstrate to the Director that it has installed, and will operate and mainta in, technologies for each intake at the new unit that reduce entrainment mortality of all stages of fish and shellfish that pass through a 3/8 inch sieve. The owner or operator of a facility must demonstrate entrainment mortality reductions equivalent to 90 percent or greater of the reduction that could be achieved through compliance with § 125.94(d)(1). In seeking to comply with the requirement set forth in this subsection, a facility must aim for 100 percent, and if it falls short within 10 percent, that will be acceptable. It may not, however, aim for 90 percent and achieve only an 89 percent reduction in entrainment mortality.

583 EPA Version of Proposed Rule submitted to OMB, at 360-61 of 383 (Exh. 85); see also Redlined Version of Proposed Rule, at 423 (Exh. 86).108 E. Other Critical Provisi ons Should Be Revised.

1. EPA Should Clarify the Meaning of the Term “Species of Concern” and Restore Additional Protections for These Species.

The proposed rule repeatedly refers to “species of concern,” 584 but does not define the term. Presumably, EPA now assigns the same meani ng to “species of concern” that it assigned in the earlier Phase II rule: “those species that might be in need of conservation actions, but are not currently listed as threatened or endangered under State or Federal law.” 585 This definition is consistent with EPA’s practice under the Phase I ru le of offering stronger protection to “species

of concern” than the rule’s uniform standards would otherwise provide. 586 To be clear, EPA should set forth this meaning of “species of conc ern” as a definition in the regulatory text.

EPA should also extend additi onal protection to species of concern. Originally, EPA proposed to require facility ope rators who reduce intake velocity to 0.5 feet/second or less to document that this measure adequately protected “species of concern” and left Directors with discretion to impose additional requirements if the velocity limit was inadequate to the task. 587
But OMB suggested that this requirement s hould be deleted, and EPA now seeks comment on the wisdom of such a provision. 588 EPA should restore the prov ision as originally drafted.

Protection for species of concern is importa nt because hundreds of candidate threatened and endangered species are caught in a regulatory backlog that, in many cases, has extended for

decades. 589 Although the intake velocity limit is prot ective of the majority of species, some species of concern may be adversely affected even by a slow-speed intake. If the best available science shows that a particular species requires support from st ronger conservation measures to survive, including more stringent protection from impingement and entrainment, then the species should not be denied vital support because of administrative shortcomings. Recognizing and restoring additional protections for species of concern is a way for EPA to address a governance failure within the Department of Interior and fulfill its mandate to protect the health and biological diversity of the nation’s waters.

584 See e.g. , proposed 40 C.F.R. 125.97(a)(4) (Entrainment monitoring reports must “describe . . . the species of concern, the counts and percentage mortality of organisms sampled, and other information specified in the permit.”).

See also 76 Fed. Reg. at 22,204 (col. 3) (EPA is considering, as an additional impingement requirement, that facilities opting to reduce intake velocity also show th at “species of concern are adequately protected.”).

585 69 Fed. Reg. at 41,587 (col. 1).

586 See 40 C.F.R. § 125.84(b)(4),(5) (re quiring new facilities to take extra measures above and beyond implementation of closed-cycle cooling if necessary to protect “species of concern to the Director.”).

587 See Redlined Version of Proposed Rule at 397.

588 Id.

589 See, e.g., Columbia Basin Fish & Wildlife News Bulletin, “USFWS Announces Wo rk Plan to Deal With Backlog of ESA Listing Determinations” (May 13, 2011) (Exh. 118).109 2. EPA Should Prevent Directors from Excluding Any Species from the Rule’s Scope.

EPA should delete its proposed Sections 125.98(c)(6) – the provision that allows a Director unfettered discretion to exclude any sp ecies, without limits a nd without standards, “from any monitoring, sampling, or study requirements of 40 CFR 122.21 and § 125.94.” 590
Currently, Section 125.98(c)(6) prov ides an exception that could swallow the Clean Water Act. The proposed rule requires all existing units to reduce impingement mo rtality to 12 percent annually, and some units must also meet an entrainment standard based on the performance of closed-cycle cooling systems; others will use st udies to propose entrainment standards. These standards are not met if a facility kills millions of fish that are simply not monitored or counted because they have been excluded by the Director . Under the Act, EPA and implementing state agencies are directed to minimize adverse environmental impacts – not ignore them.

3. EPA and States Should Maintain an Assumption of 100 Percent Entrainment Mortality in All Site -Specific Proceedings.

EPA is considering “allow[ing] facilities to demonstrate, on a site specific basis, that entrainment mortality of one or more species of concern is not 100 percent.” 591 In general, neither EPA nor the states should be making entr ainment decisions on a s ite-specific basis – EPA should set a national, uniform entrainment standa rd based on the performa nce of closed-cycle cooling systems. Such a standard would obviate virtually all biological m onitoring requirements. But in any instance where entrainment monitoring is conducted, EPA should not allow permitees to attempt to demonstrate that entrainment mortality is less than 100 percent at their particular site. Assessing entrainment mortality on a site-specific and species-specific basis is administratively unworkable and will lead to sign ificant delays in the permitting of cooling water intake structures for little gain.

An adequate demonstration of less than 100 percent entrainment mortality would require yet another study that states are not equipped to evaluate. Facilities would need to hold individuals after entrainment for days to ensure th at apparent survivors do not succumb to latent mortality – for example, being so drastically weaken ed or injured that they die slowly or fail to develop properly into juvenile fish. There ar e, however, no objective criteria for entrainment mortality studies and this means that there inevitably would be disputes between permit applicants and regulators (and in tervenors) about how long to hold samples to determine overall mortality, whether sampled individuals were dead before being entrained, and whether individuals who died after being entrained died because of the en trainment or for other reasons. The net effect will be to open a new set of biological controversie s that delay effective permitting.

Further, there is little to be gained through the site-specifi c inquiry. As EPA noted, while

some eggs of some species have been shown to survive entrainment under some conditions, there is no data to suggest that either the most co mmon or the most enda ngered species are amongst

590 Proposed 40 C.F.R. § 125.98(c)(6) , 76 Fed. Reg. at 22,287 (col. 3).

591 76 Fed. Reg. at 22,273 (col. 3).110 these lucky few. 592 And it is the most common entrained and most endangered species that drive the entrainment standard – the endangered beca use their protection can drive more stringent standards, and the most commonly entrained be cause they often die in simply overwhelming numbers. As a consequence, tinkering with the mortality rate for another species will have only a vanishingly small effect on overall entrainment mortality. Like EPA’s proposal to engage in intensive site-specific cost-benefit analyses, th is is yet another information gathering effort whose costs significantly outwei gh its benefits. Accordingly, EPA should adhere to its presumption that any indivi dual entrained is killed.

4. EPA Should Specify Minimum Monitoring Requirements.

EPA has requested comments on the monitori ng requirements for impingement mortality. EPA should specify minimum monitoring requirements that meet the expectations it laid out in the preamble, rather than leaving monitoring te rms to be determined by the Director. For example, EPA expects that regulated facilities will monitor impingement at least once weekly during primary periods of impinge ment, and that they will practi ce continuous monitoring in 6 to 8 hour shifts that cover an entire 24 hour cycle. 593 To ensure this expect ation is met, EPA should codify the requirement in the final rule as a defa ult practice. It is inefficient for each state to reinvent monitoring requirements (as EPA would have it) dozens of times – once for each facility. Moreover, as discussed above, since latent impingement mortality may occur up to 96 hours after an impingement event, if EPA retain s the 12-percent impingement mortality standard, EPA should require facilities to retain impinged fi sh for 96 hours in order to determine the extent of latent mortality. EPA should specify unifo rm minimum monitoring requirements that meet the expectations it laid out in the preamble.

5. EPA Must Prohibit the Use of Freshwater for Once-Through Cooling in Arid Regions or Those at Risk of Drought.

EPA has requested comment on proposed regulat ory provisions to en courage the use of recycled or reclaimed water as cooling water. 594 We support EPA’s general belief that the use of reclaimed water for cooling can be beneficial to water resources. 595 However, defining BTA in any meaningful way requires more than merely providing an excepti on from regulation for existing and new units that may choose to use reclaimed water. 596 Instead, BTA must be defined

to require reclaimed water use. Every gallon of reclaimed water used is one less gallon withdrawn. The potential benefits of using reclaimed water for power plant cooling are immense

and would result in additiona l environmental protection and water savings and improved reliability at both once-through a nd closed-cycle facilities that utilize freshwater intake.

EPA’s proposed approach fails to fully recogni ze either the availa bility of reclaimed water or the public and environmental benefits of using reclaimed wate r for cooling. Indeed,

592 76 Fed. Reg. at 22,273 (col. 3).

593 See 76 Fed. Reg. at 22,257 (col. 1).

594 76 Fed. Reg. at 22,274.

595 See, e.g.

, id. at 22,199.

596 See 40 CFR 125.91(c) & 125.93(d)(3).111 EPA’s weak case-by-case approach fails to explic itly require local consideration of this readily available option at all. 597 It is arbitrary, capricious and an abuse of discretion for EPA to fail to require the use of reclaimed water where it is availa ble, particularly given that water availability threats are well known, and that widespread use a nd availability of reclai med water can address both withdrawal and consumption im pacts from power plant cooling.

a. Use of Reclaimed Water is a Pr oven Technology for Power Plant Cooling.

Reclaimed (or treated) wastewater is a viable alternative to the us e of freshwater or saltwater for cooling, and it elim inates the intake issues asso ciated with once-through cooling and the consumptive use issues associ ated with closed -cycle cooling.

The use of reclaimed water for power pl ant cooling dates back as early as 1967. 598
Today, as shown in Appendix H, approximately 67 U.S. power plants use reclaimed wastewater for cooling purposes. 599 The volume of treated wastewater used at these facilities ranges from 0.1 MGD to 55 MGD, with the average facility using between 0.5 MGD and 5 MGD. 600 The largest current user of reclaimed water is the Palo Verde Nuclear Plant in Wintersburg, Arizona,

which uses 55 MGD of reclaimed water for cl osed-cycle cooling makeup water. The 3.3 GW facility obtains its water from two wastewat er treatment plants in Phoenix and Tolleson.

The majority of power plants relying on r eclaimed water for cooling are coal-powered, although several are geothermal a nd nuclear. The states with the largest numbers of facilities using reclaimed water are Florida, California, Texas, and Arizona. 601 And while the use of reclaimed water generally tends to occur most in areas where water shortages are more severe, power plants in many other states have taken ad vantage of the benefits of reclaimed water for power plant cooling.

For U.S. power plants currently using recl aimed water, the distance between the power plant and the treatment facility ranges from 0 miles (the treatment facility is onsite) to approximately 56 miles, with over 90% of the plants using reclaimed water from a facility within 25 miles. The average distance of all facilities from their reclaimed water source is approximately 7.5 miles. 602

597 While 40 CFR 125.98(e) mentions “impacts on water consumption” as a mandatory factor for local consideration, it does not require the Director to examine availability of reclaimed or recycled water in making any

entrainment control determination.

598 J.A. Veil, Argonne National Laboratory, Use of Reclaimed Water for Power Plant Cooling at 9 (Aug. 2007) (Exh. 119) also available at http://www.netl.doe.gov/technologies/coa lpower/ewr/pubs/reclaimed%20water.pdf

.
599 Id. (with further analysis by Jenna Schroeder (e.g., some plants listed by Veil were proposed and never completed)). After research using the Energy Information Agency’s 2009 EIA-860 data and cross-referencing with monthly EIA updates from 2010 and 2011, fourteen facilitie s were identified in addition to those listed by Veil.

600 Id. One additional facility worth noting is the West Coun ty Energy Center, which is located in Palm Beach Florida and run by Florida Power and Light. It is reported on their website that as of early 2011, the facility will be using treated wastewater for all its cooling needs. However, repeated attempts to confirm this via phone and email

were unreturned.

601 Id.

602 Jenna Schroeder, “Reclaimed Facilities Data” (attached hereto as Appendix H).112 The level of treatment for th e reclaimed water also varies by utility. All utilized

reclaimed wastewater is treated to at least secondary treatment. Many power utilities enter into agreements with the wastewater treatment plant th ey are obtaining water from in order to have them conduct further (tertiary) treatment. Conversely, some f acilities further treat the water

onsite themselves. Under either scenario, effective measures, su ch as the addition of compounds to the reclaimed water, can be employed to prevent scaling, corrosion, and biofouling of the utility’s infrastructure. 603

b. Reclaimed Water is Widely Availa ble for Cooling at Existing OnceThrough Facilities.

Significant studies demonstrat e widespread opportunities for treated wastewater to be used at power plants. A 2009 NETL study concluded that “[r]eclai med water (treated municipal wastewater) is widely available in commun ities throughout the United States in sufficient volumes and is reliable enough to su pply power plant cooling water.” 604 Similarly, a 2008 study by EPRI found that “[m]unicipal effluent due to its abundance and quality is a viable alternative source for cooling water supply.” 605
Chief among the detailed studies on use a nd availability is Vidic (2009), a 445-page, multi-year report that painstakingly details the wi despread availability and feasibility of using

reclaimed water at both new and ex isting coal-burning power plants. 606 For existing plants in particular, Vidic showed that 75 percent of existing coal-burni ng power plants are within 25 miles of a wastewater treatment plant that coul d provide water for cooling. The Vidic report, conducted for the Department of Energy, furthe r concluded that “finding alternative water resources to replace freshwater demand for c ooling purposes is inev itable and urgent.” According to DOE, the results from the Vidic stu dy indicate it is feas ible to use secondary treated municipal wastewater as cooling system makeup water. 607

In addition to supporting the Vidic study, DOE’s NETL is in the process of creating a GIS-based interface of non-traditional sour ces of water and coal-fired power plants. 608

603 Radisav D. Vidic & David A. Dzombak, University of Pittsburgh Department of Civil and Environmental Engineering, Reuse of Treated Internal or External Wastewaters in the Cooling Systems of Coal-Based

Thermoelectric Power Plants at 5-27 (2009) (Exh. 120) also available at http://www.netl.doe.gov/technologies /coalpower/ewr/water/pp-mgmt/ pubs/06550/42722FSRFG063009.pdf

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604 National Energy Technology Laboratory , Use of Non-Traditional Water for Power Plant Applications: An Overview of DOE/NETL R&D Efforts at viii (2009) (Exh. 121) also available at http://www.netl.doe.gov/technologies/c oalpower/ewr/water/pdfs/Use%20of %20Nontraditional% 20Water%20for%2 0Power%20Plant%20Applications.pdf

. 605 Electric Power Research Institute, Use of Alternative Water Sources for Power Plant Cooling at 2-23 (2008) (Exh. 122).

606 Radisav D. Vidic & David A. Dzombak, University of Pittsburgh Department of Civil and Environmental Engineering, Reuse of Treated Internal or External Wastewaters in the Cooling Systems of Coal-Based

Thermoelectric Power Plants at 5-27 (2009) (Exh. 120).

607 U.S. Department of Energy, Office of Foss il Energy, “Project Fact Sheet” (Exh. 123) also available at http://fossil.energy.gov/fred/factsheet.jsp?doc=6251&p rojtitle=Use%20of%20Treated%20Municipal%20Wastewate r%20as%20Power%20Plant%20Cooling%20System%20Mak eup%20Water:%20Tertiary%20Treatment%20versus %20Expanded%20Chemical%20Regimen%20for%20Recirculating%20Water%20Quality%20Management

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608 U.S. Department of Energy, Office of Fossil Energy, Internet-Based GIS Catalog of Non-Traditional Sources for Cooling Water for use at America’s Coal-Fired Power Plants (2009) (Exh. 124) also available at113 Expected to be completed in the fall of 2011, the primary goal of the project is “to reduce/minimize high-quality freshwater withdraw al and consumption by creating an internetbased, GIS catalog of non-traditi onal sources of cooling water for coal-fired power plants.” As stated in the NETL Fact Sheet, “[b]y pairing non-traditional water sources to power-plant water needs, the research will allow power plants that are affected by water shortages to continue to operate at full capacity without adversely aff ecting local communities or the environment.” 609
Preliminary data available on the internet indica te that a significant number of existing, coalfired power plants could benef it from the use of nearby non-tr aditional sources of cooling

water. 610

Carnegie Mellon and the University of Pittsburgh also continue to evaluate the most efficient way to treat reclaimed water for power plant cooling. The study is an economic and social analysis comparing tertiary treatment of reclaimed water to reclaimed water treated with an expanded chemical regimen. This study is currently underway. 611

EPA should incorporate the findings from all of these studies into the proposed cooling water rule and require power plants to utilize available reclaimed water for the cooling water and environmental benefits it provides.

c. EPA’s Stated Concerns About Reclaimed Water Availability are Unsupported and Unwarranted.

In the 2011 TDD at page 6-18, EPA claims, “m any facilities substa ntially outpace the

volume of water available to them from altern ate sources.” EPA relied on a single study in California in reaching this conclusion. However, EPA’s conclusion is both erroneous and misses the point.

First, EPA appears to ignore important studies on the availability of reclaimed water for cooling water, including NETL 2009, EPRI 2008, Vidic 2009 and the latest GIS information from All Consulting. Vidic reported approximately 27.5 billion gallons a da y of wastewater flow available in eleven of the thirteen origin al NERC regions in the United States, from approximately 18,000 wastewater treatment facilities. 612 As is noted above, Vidic also found that approximately 50 percent of existing coal-fired power plants ha d sufficient reclaimed water available within a 10 mile radius, and 75 percent had sufficient reclaimed water available within

www.netl.doe.gov/publications/factsheets/project/Proj522.pdf

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609 Id. at 2.

610 See ALL Consulting, GIS Catalog of Non-Traditional Sources of Cooling Water for Use at America’s CoalFired Power Plants (Exh. 125) also available at http://www.allllc.com/projects/coal_water _alternatives/page.php?13 (last visited Aug. 17, 2011).

611 National Energy Technology Laboratory, Use of Treated Municipal Wastewater as Power Plant Cooling System Makeup Water: Tertiary Treatment Versus Expanded Chemical Regimen for Recirculating Water Quality Management (Exh. 126) also available at http://www.netl.doe.gov/technol ogies/coalpower/ewr/water/ppmgmt/wastewater.html

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612 Radisav D. Vidic & David A. Dzombak, University of Pittsburgh Department of Civil and Environmental Engineering, Reuse of Treated Internal or External Wastewaters in the Cooling Systems of Coal-Based

Thermoelectric Power Plants at 5-27, at 2-5 and 2-6 (2009) (Exh. 120).114 a 25 mile radius. 613

A 1995 report from the USGS estimated 41 BGD of treated wastewater from 16,400

facilities nationwide. 614 Of this 41 BGD, 2.4 percent (or 983 MGD) was reclaimed and used, which means the vast majority, approximately 97.6 percent or 40 BGD, was potentially available for use elsewhere, such as for power plant coolin g. All of these studies demonstrate sufficient availability of reclaimed wate r for use as cooling water.

Second, EPA improperly characterizes the result s of the California study. The California report cited by EPA evaluated 15 coastal power generation facilities that use once-through cooling to gauge the feasibility of converting these facilities to closed-cyc le cooling. The report repeatedly states that it is the intent of the state to encourage alternate cooling methods whenever possible. Given this preference, the authors ev aluated whether a sufficient volume of reclaimed

water existed to meet the cooli ng needs at existing once-through f acilities. This assessment was made assuming the facilities would maintain their once-through cooling configuration, not the closed-cycle needs of the upgrades they planne d to undertake at these facilities. This is significant because, as the report states, the proj ected decrease in cooling water volume needed after the conversion would be between 93 percent and 98 percent, depending on the facility. For EPA to make a conclusion that using reclaimed wate r is not a feasible opti on because there is not sufficient volume available to replace all of the original once-through cooling needs is therefore incorrect and misguided. In fact, if one looks at the 15 facilities evaluated in the California report, the vast majority of plants could be serviced entirely by reclaimed water after their conversion to closed-cycle cooli ng, with the available volume ofte n orders of magnitude greater

than needed. 615

Furthermore, even in areas where the once-th rough cooling water need s of facilities could

not be met entirely by reclaimed sources, these reclaimed wa ter sources oftentimes can provide a substantial portion, even a majority, of the cooling water needed under a once-through cooling configuration. For EPA to disc ount using reclaimed water as a cooling water source in these instances misses an important opportunity to conser ve large volumes of water, as well as avoid the impacts procuring this water creates, such as impingement and entrainment of wildlife.

The use of reclaimed water should not be vi ewed as an all-or-nothing proposition, such

that if there is not sufficient reclaimed water av ailable for all cooling needs then reclaimed water

cannot and should not be used at all. Even a 30 percent reduction in fres hwater withdrawals for thermoelectric power generation using once-th rough cooling would resu lt in withdrawal reductions of approximately 43 billion gallons a day, 616 nearly the same amount of reclaimed water available in the U.S., as reported by the USGS for 1995

. 617

613 Id. at 2-22 and 2-23.

614 U.S. Geological Survey, Estimated Water Use in the United States in 1995 at 58 (1998) (Exh. 127) also

available at http://water.usgs.gov/watuse/pdf1995/pdf/wastewater.pdf . 1995 was the last year USGS kept track of

this statistic.

615 Jenna Schroeder, “CA Reuse Analysis.xlsx” (attached hereto as “Appendix I”).

616 U.S. Geological Survey, Estimated Use of Water in the United States in 2000 at 41 (2004) (Exh. 128) also

available at http://pubs.usgs.gov/circ/2004/circ1268/pdf/circular1268.pdf

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617 USGS (1998) at 58.115 d. The Use of Reclaimed Water for Cl osed-Cycle Cooling Addresses Any Consumption Issues.

Numerous studies address the consumptive vers us withdrawal considerations of various cooling practices. EPRI estimates that “ once-through consumption levels, when including downstream evaporation, are less than, but of the same magnitude as, wet recirculating cooling system consumption levels.” 618

The table below, taken fro m Mielke et al. (2010), 619 shows estimated once-through fossil plant water consumption levels of 300 gal/MWh ve rsus closed-loop water consumption levels of 480 gal/MWh. For nuclear plants, the corr esponding numbers are 400 gal/MWh and 720 gal/MWh. 620

Most importantly, however, no matter how one calculates consumptive use of closedcycle cooling, the consumption is relatively mi nor relative to availa ble reclaimed water.

Relying on the Mielke data, the amount of water consumed at once-through facilities is anywhere between 0.5 percent and 1.6 percent of the water withdr awn. Therefore, because the EPA reports that approximately 200 BGD of cooling water is wit hdrawn for once-through

618 NETL 2010 at 21 (citing EPRI, Water & Sustainability (Volume 3): U.S. Water Consumption for Power Production – The Next Half Century , Topical Report No. 1006786 (Mar. 2002) [hereinafter “EPRI 2002”] (Exh. 129)). As EPA recognizes, most studies do not consider the consumptive impacts of once-through cooling after the cooling water leaves the power plant. 76 Fed. Reg. 22,199. Note: 40 CFR 125.98(e) does not expressly require consideration of the consumptive use of once-through co oling once the discharge leaves the facility, but it should.

619 Erik Mielke, Laura Diaz Anadon, & Venkatesth Narayanamurti, “Water Consumption of Energy Resource Extraction, Processing, and Conversion : A review of the literature for estim ates of water intensity of energyresource extraction, processing to fu els, and conversion to electricity,” Energy Technology Innovation Policy Discussion Paper No. 2010-15, Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University (Oct. 2010) (Exh. 130) also available at http://belfercenter.ksg.harvard.edu/ files/ETIP-DP-2010 -15-final-4.pdf

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620 NETL notes that its original analys is (relied on by Mielke) did not account for downstream evaporative losses, which are not insignificant. NETL 2010 at 21. Interesti ngly, EPRI 2002 also reveals that shifting from coal and nuclear-based generation to natural gas generation would reduce water consumption more than the amount increased due to closed cycle cooling requirements. NETL 2002 at vii-viii.116 facilities, 621 then between 1 and 3.2 BGD is generally consumed at once-through facilities. Switching from once-through to closed-cycle coo ling could marginally increase the amount of

water consumed from anywhere between 0 percent and 80 percent at any given facility. Thus, switching these facilities to closed-cycle coo ling would increase consumption to 1 BGD on the low end (no change in consumption) and 5.8 BG D on the high end (assuming 80 percent increase in consumption). The amount of reclaimed wa ter available more than meets these needs, assuming it is distributed where needed.

Similarly, in 2002, EPRI predicted that “if EPA requires cooling system retrofits at plants with once-through cooling[,] then national power plant freshwat er consumption wi ll rise [] about 10% above the base projection.” 622 This would result in increased consumption of less than 1

BGD across the 48 conterminous states. 623 Moreover, in 2010, NETL calculated a 26.6 percent increase in consumption from 2010 to 2035 with a phased approach to closed-cycle cooling retrofits. Under this scenario, NETL estimated an increase in consumption from 3.6 BGD to 4.6 BGD, or additional consumption of 1.0 BGD by 2035. 624 Again, the amount of reclaimed water available far exceeds these needs, assuming it is distributed where needed.

Finally, even under more extreme scenarios, reclaimed water could offset any increases in consumption due to modernization to closed -cycle cooling. For example, given that oncethrough generators use approximately 200 BGD of coo ling water per year, if all of these facilities were to convert to closed-cycle wet cooli ng, the withdrawal rate would drop by about 95.6 percent on the low end to 99.4 percent on the high end. 625 Assuming all of the remainder is consumed, this would result in new consum ption for closed-cycle cooling between approximately 2 to 8.8 BGD. Given the approxim ately 41 BGD of wastewat er available in the U.S. reported by USGS in 1995, there is more than adequate daily reclaimed water flow in the United States to meet this demand, again assuming it is distributed where needed.

e. At a Minimum, EPA should Emulat e California’s Policy on the Use of Reclaimed Water for Cooling and Establish a Preference for

Reclaimed Water.

Since 1975, California has encouraged the use of reclaimed wastewater for power plant cooling and placed a priority on using wastewater for cooling purposes. 626 The use of freshwater for power plant cooling in California is only allo wed “when it is demonstrated that the use of other water supply sources or othe r methods of cooling would be environmentally undesirable or

621 Personal Communication with Paul Shriner, EPA (June 8, 2011).

622 EPRI 2002 at 6-2.

623 See EPRI 2002 at Figure 6-5.

624 NETL 2010 at 1-2.

625 Erik Mielke, Laura Diaz Anadon, & Venkatesth Narayanamurti, “Water Consumption of Energy Resource Extraction, Processing, and Conversion : A review of the literature for estim ates of water intensity of energyresource extraction, processing to fu els, and conversion to electricity,” Energy Technology Innovation Policy Discussion Paper No. 2010-15, Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University (Oct. 2010) (Exh. 130).

626 California State Water Resources Control Board (SWRCB), Res. No. 75-058 at 4-5 (June 19, 1975) (Exh. 131)

also available at http://www.swrcb.ca.gov/board_decisions/adop ted_orders/resolutions/1975/rs75_058.pdf

.117 economically unsound.” 627 The success of this policy has resulted in almost a dozen power plants in California using reclaimed wa ter for closed-cycle cooling makeup water. 628

Today, California Water Code § 13552.6 codifi es the importance of using reclaimed water and declares the use of potable domestic wa ter for closed-cycle cooling to be a waste or

unreasonable use of water if safe and suffi cient reclaimed water is available.

Unfortunately, EPA’s Proposed Rule takes a very different approach by essentially elevating the use of inland wa ters over reclaimed water a nd by placing the burden on state agencies to evaluate the cooling water impact on water consumption. Yet the longevity and success of California’s approach provides further evidence that the use of reclaimed water is the best technology available for minimizing envi ronmental impact and consumption. Like California did more than three decades ago, EPA should at the very leas t establish a preference for the use of reclaimed water for power plant cooling in areas at ri sk of water scarcity.

6. EPA Should Not Exempt Cooling Water Withdrawals from the Rule Merely

Because the Water Is Also Used for Desalination.

While we understand EPA’s desire to encour age the reuse of cooling water for other processes, we have serious concerns about the blanket exemptions in Section 125.91(c) and Section 125.92. As drafted, these sections exempt water from the definition of “cooling water” if it is obtained from a desalination plant or is us ed in a manufacturing process either before or, more likely, after it is used for cooling purposes . This exemption promotes withdrawal – and associated aquatic mortality – and raises particular concerns with respect to the co-locating of

desalination facilities w ith power plants.

EPA has acknowledged that: “[f]rom a biologi cal perspective, the effect of intake structures on impingement and entrainment doe s not differ depending on whether an intake

structure is associated with a power plant or a manufacturer.” 629 This conclusion is true for

seawater desalination facilities that withdrawal large amounts of water and do not employ the best technology available for minimizing entrainm ent and impingement and propose to co-locate with a power plant in order to utilize their exis ting intake structure for the desalination process

feed water. The exclusion of seawater used fo r cooling and desalination from the definition of “cooling water,” as contemplated by proposed Sections 125.91(c) and 125.92, would allow the power plant to characterize all of its intake as water that is not defined as “cooling water”

because it is also used for desalination feed water – thereby effectively exempting the power plant from the Proposed Rule. Thus, if a power plant co-locates with a large enough ocean desalination facility to exempt it from the rule , the marine life mortal ity would go completely unregulated.

This exemption would thus allow both the first user and second user of the seawater to avoid impingement and entrainment controls, th us providing no protectio n for marine life.

627 Id. at 4.

628 See J.A. Veil, Argonne National Laboratory, Use of Reclaimed Water for Power Plant Cooling at 9 (Aug. 2007) (Exh. 119).

629 76 Fed. Reg. at 22,192.118 Significantly, new desalination plants in Calif ornia have received NPDES permits under the presumption that they will cause no net impact to the marine environment by virtue of colocating with power plants who are subject to Se ction 316(b) (on the theory that the power plant is already required to employ the best technology available to minimize adverse impacts under 316(b) and the desalination plant is withdraw no additional water beyond that used by the power plant). 630 Now, ironically, EPA’s proposed rule wo uld exempt a once-through-cooled power plant from Section 316(b) compliance if it gives its discharge water to a desalination plant (on the theory that the water is not cooling water if it is ultimately used fo r drinking). Consequently, both the first user and second user (the power plan t and the desalination fac ility) might claim that they cause no impact because the other user is the primary consumer, while their massive water withdrawal kills sea life through entrainment and impingement at exactly the same levels as

before.

EPA has provided no reasonable explanation fo r this broad exemption. Regardless of whether a desalination plant also uses it, if wate r is used for cooling it remains “cooling water” and must be regulated under Section 316(b). To ensure the objective of Section 316(b) to minimize entrainment and impingement from co oling water intakes is achieved, the proposed language in the regulations must be re-written to eliminate any a nd all definitions or exemptions that would potentially allow power plants to be excluded from the regulations simply because a seawater desalination facility happened to co-locate with the power plant.

7. EPA Should Require an Actual-F low Calculation Baseline.

In the preamble to the Proposed Rule, EPA states that “[f]ollowing promulgation of the 2004 Phase II rule, ... EPA became aware of certa in elements of the 2004 rule that were particularly challenging or tim e-consuming to implement.” 631 The very first of these “challenging” elements mentioned by EPA is th e calculation baseline: “In practice, both permitees and regulatory agencies encountered difficulty with the calculation baseline. Specifically how a facility should determine what the baseline represented and how a particular facility’s site-specific confi gurations or operations compared to the calculation baseline.” 632

A calculation baseline typically comes into play in either of two scenarios. First, where a performance standard is expressed in terms of a percentage reduction (as in the 2004 Phase II rule), the calculation baseline is the starting poi nt from which the reductions are measured. Second, a calculation baseline is often used to compare two diffe rent technologies that protect fish in different ways. For example, regulat ory agencies often empl oy a calculation baseline when comparing the performance of closed-cycle cooling to other flow reduction measures such as variable speed pumps or to screening technologies.

630 See, e.g., Cal. Reg’l Water Quality Control Bd., San Diego Region, Order No.R9-2009-0038 Amending Order No. R9-2006-0065 (NPDES No. CA0109223) Waste Discharge Requirements for the Poseidon Resources Corporation Carlsbad Desalination Project Discharge to th e Pacific Ocean via the Enci na Power Station Discharge Channel 1 (2009) (Exh. 132) also available at http://www.waterboards.c a.gov/sandiego/board_decisions/adopted_orders/2009/R9_2009_0038_rev1.pdf

631 76 Fed. Reg. at 22,185 (col. 2).

632 Id . at cols. 2-3.119 In the commenters’ experience, the most controversial aspect of the Phase II

calculation baseline definition was its operational component. In relevant part, the Phase II rule provided as follows:

Calculation baseline means an estimate of impingement mortality and entrainment that would occur at your site assuming that: ... baseline practices [and] procedures ... are those that your facility would maintain in the absence of any ... operational controls, including flow or velocity reductions, implemented in whole or in part for the purposes of reducing impingement mortality and

entrainment. 633

Where a facility has not implemented any operational controls to save fish, the operational baseline should be straightforward – it would simply reflect the actual intake flow (AIF) and the timing (seasonality) of that actual flow. But in practice, some power companies and at least one state agency has stated that the operational compone nt of the calculation baseline should be a “full-flow” baseline, i. e., a baseline that assumes, cont rary to actual practice at any power plant, that the facility runs 24 hours a day, 7 days a week, 365 days a year.

Use of a fictional full-flow baseline can allow, for example, a plant that runs 60 percent of the time (as many baseload fossil plants do) to take credit for “saving” 40 percent of the fish,

when it has made no actual reductio ns at all. More important, using a “full-flow” calculation

baseline tends to overestimate the effects of altern atives to closed-cycle cooling such as variable speed pumps. To illustrate the point from a particular permit proceeding, when issuing a draft permit for the Port Jefferson power station in 2009, New York State DEC estimated that the plant would entrain 1.1 billion organisms per year if it operated 100 percent of the time. Thus,

the full-flow calculation baseline for entrainment at Port Jefferson is 1.1 billion organisms. In fact, the station was at that ti me entraining only 1.02 billion or ganisms per year under its actual operating conditions. Thus, the actual flow baseli ne (or, more precisely, the actual fish-kill baseline) is 1.02 billion organisms, which is about a 7 percent difference from the baseline. To illustrate the significance of this difference, closed-cycle cooling would reduce entrainment by 95 percent or more from the actual 1.02 billion entrainment figur e, reducing entrainment to approximately 50 million organisms per year. But if the full-flow baseline is used, then a suite of technologies and operational measures that reduce entrainment to 55 million organisms per year would be deemed to be 95 percent effectiv e (and therefore identical in effectiveness to closed-cycle cooling) and a suite of tec hnologies and operational measures that reduce entrainment to 160 million organisms per year w ould be deemed to be 85.5 percent effective (and therefore “equivalent” to closed-cycle cooli ng using a 10 percent margin of error that DEC imitated from EPA’s Phase I rule). The full-fl ow baseline distorts reality and provides less protection for aquatic resources because if an actual fish-kill baseline were used, then a 95 percent reduction would equate to 50 milli on organisms entrained regardless of which technologies were being used, and not 55 or 160 million organisms. In cases where the actualflow baseline and full-flow baselin e are further apart, such as w ith the Bowline Point Generating Station in New York, now ope rating below 10% of capacity

, 634 the prejudice will be even greater. Clearly, EPA cannot intend that this gross distortio n be permissible.

633 69 Fed. Reg. at 41,683 (col. 3)-41,684 (col. 1) (adopting 40 C.F.R. § 125.93) (emphasis added).

634 See supra note 218, p. 36.120 Recognizing the problematic nature of the calculation baseline, EPA states that it “has developed a new approach to the technology-based requirements proposed today that does not

use a calculation baseline.” 635 What EPA presumably means is that, unlike the Phase II rule, the Proposed Rule does not include performance sta ndards expressed in terms of a percentage

reduction and does not include a definition of cal culation baseline. But by proposing a sitespecific, case-by-case approach to BTA dete rminations for entrainment, EPA is requiring regulators to compare the performance of differe nt technologies. Because the Proposed Rule does not forbid use of a calculation baseline, many state agencies will no doubt employ one in comparing different candidate BT A technologies. Likewise, to th e extent that facilities propose impingement reduction technologies that are “comparable” in perf ormance to barrier nets for shellfish or that meet the “90 percent or greater” (i.e., Track II) standard for new units, regulators may employ calculation baselines to make those comparisons. The Proposed Rule thereby

invites the use of calculation baselines but wit hout defining the term or otherwise providing guidance on how they should be defined and applied. The result is therefor e even worse than the Phase II rule in this regard becau se EPA is punting to the states, with less guidance and direction than before, the primary problem it had identifi ed from its implementa tion experience under the

2004 Phase II rule.

Accordingly, EPA should either include a pr ovision in the rule pr ohibiting states and EPA regional offices from using any calculation baseline in imple menting the rule, or if EPA

allows use of calculation baselines then EPA shoul d make clear in the ru le that a “full-flow” calculation baseline is impermi ssible, and that the operational component of a calculation baseline must reflect the plant’s actual operations (for example, taking the last 3 years of actual operation), modified only in the ra re instance where there have been reductions in flow actually implemented to protect fish (and only to that ex tent). Most importantly, because power plants never operate 100 percent of the time, a full-fl ow baseline should never be allowed.

8. EPA Should Remove the Special Provision for Nuclear Facilities.

EPA created an exception to the entrainment mortality requirements for nuclear facilities if compliance “would result in a c onflict with a safety requireme nt established by the [Nuclear Regulatory] Comm ission [NRC].” 636 However, OMB broadened it to also cover impingement mortality requirements and deleted EPA’s clarif ying statement that the exception was narrow and that “[t]echnical infeasib ility, and not cost, is the only consid eration in evaluation of a potential conflict with Commission safety requirements.” 637 If this provision is retained, EPA should revert to the version contained in the proposed rule sent to OMB. Better yet, EPA should remove the provision entirely because the except ion is unnecessary and potentially confusing, given the design and operation of U.S. nuclear plants’ cooling water systems and existing NRC regulations.

635 76 Fed. Reg. at 22,185 (col. 3).

636 Proposed 40 C.F.R. § 125.94(e); 76 Fed. Reg. at 22,284 (col. 1).

637 Redlined Version of Proposed Rule at 431.121 Currently operating nuclear power plants that utilize once-thr ough cooling have two completely separate and independent cooling syst ems; one system to cool the steam used to generate electricity, which is th e subject of this rulemaking, and a second “service water” system which provides water to cool pl ant buildings and equipment, a nd emergency cooling water to cool the reactors, spent fuel pool s and other critical pl ant systems in the event of an accident. 638
The first system is considered “non-safety related” by the Nuclear Regulatory Commission, and the second “service water” system is consid ered “safety-related.” The two systems are completely separate in that they rely on differe nt pumps, piping and intakes to function. It is extremely unlikely that compliance with Section 316(b) could in any way implicate or create safety concerns related to the operation of the safety-related service water system, given this separation. Moreover, the NRC’s existing regulati ons adequately address proposed changes to a nuclear facility, rendering this additional process unnecessary. 639

Furthermore, by creating a unique process fo r the Director to make a secondary BTA determination in response to a facility operator raising safety concerns with the NRC, the provision creates confusion as to when NRC review of BTA requirements would occur. Any review by the NRC of a BTA determination should be limited to ensuring that the implementation of BTA, as determined by EP A and implemented by the Director, would not reduce safety margins at an operating nuclear pl ant. Such review should occur after the BTA requirements have been sp ecified, not before.

9. EPA Should Require Interim Mea sures to Reduce Cooling Water Flow Until Long Term Comp liance Solutions Are in Place.

The proposed rule does not set a firm dead line for entrainment compliance and gives facilities up to eight years to co mply with the rule’s impingement standard. In the interim, a number of technologies exist, which while not commensurate with the effectiveness of closedcycle cooling, nevertheless offer reductions in ad verse impacts, move a facility’s performance closer to BTA, and can be installed relatively quickly. Accordingly, we request that EPA include

a definition of interim measures in the proposed rule and require that the interim measures be implemented as NPDES permit conditions until full compliance is achieved.

The interim measures can include technologi es and operational cha nges that reduce the flow of cooling water, particularly at peak sp awning times. For example, peaking facilities can install variable speed pumps that allow them to use less water when not operating at full capacity. All facilities can alter their standard procedures to implement aggressive shutdowns of pumps when offline, rather than leaving c ooling water pumps runni ng. And facilities can typically schedule regular maintenance outages for peak spawning periods. These kinds of operational measures should be within reach of mo st facilities and ther e is no reason why they should not be required immediat ely while long-term BTA requi rements are being studied, developed, and implemented.

638 For a description of the different cooling systems employed at nuclear power plants, see Got Water ? Issue Brief

, David Lochbaum, Union of Concerned Scientists, December 2007 (Exh. 41).

639 See 10 C.F.R. § 50.59.122 10. EPA Should Clarify th at Only Offshore Seafood Processing Facilities, Not Onshore Facilities, Are Exempt from the Rule.

EPA intended to exempt seagoing vessels from the rule because of concerns about space

limitations and retrofits that c ould compromise the s eaworthiness of dril ling rigs, liquefied natural gas terminals, and fishing boats. As the rule is drafted, however, it is unclear whether all seafood processing facilities are exempted, incl uding land based facil ities, or whether only vessels are exempted. The pream ble discussion of seaworthiness and related concerns makes it clear that only vessels are exempted. 640 But proposed 40 C.F.R. § 125.91(d) reads “This subpart does not apply to seafood processing facilities, offshore liquefied natural gas terminals, and offshore oil and gas extraction facilities that ar e existing facilities as defined in § 125.92.” By not prefacing “seafood processing facilities” wi th the word “offshore,” some might read ambiguity where EPA intended none. Therefore, EPA should include the word “offshore” as a preface to “seafood proc essing facilities.”

F. EPA’s Cost-Benefit Analysis is Deeply Flawed and Illegal.

1. EPA’s Extensive Monetized Cost-Benefit Analysis Far Exceeds the Restrictions Imposed by Congress.

As discussed above, while Section 316(b) perm its EPA to consider costs in relation to benefits in choosing a regulatory option and es tablishing nationwide performance standards for the Section 316(b) existing facili ties rule, the statute restrict s EPA’s investigation of, and reliance upon, such comparisons. Congress intended EPA to consider environmental benefits in non-monetized terms, avoid lengthy cost-ben efit proceedings and futile attempts at comprehensive monetization, and take account of the Clean Water Act’s technology-forcing objectives. If used at all in developing intake structure requirements, cost-benefit analysis should be used only to prevent results that are absurd in light of extr eme disparities between costs and benefits, for example through EPA’s trad itional wholly disproportionate test. Most importantly, any cost-benefit comparison must be limited and subsidiary, not a primary or paramount factor. Congress intended to allow only a limited consideration of costs when it directed EPA to set technology-based standards. Cost-benefit comparisons must be limited in light of the difficulty of quantifying and monetiz ing all the benefits of minimizing the adverse impacts of cooling water intake structures, whic h consistently causes unreasonable regulatory delays and underestimates of benefits.

The cost-benefit analysis that EPA performed, however, went well beyond what Congress intended. Instead of leaving its consider ation of the rule’s costs and benefits in nonmonetized terms, EPA attempted to monetize th em. And instead of avoiding lengthy costbenefit proceedings, EPA expended considerable time and energy over the course of several years on this analysis, and now intends to require state permitting authorities to oversee hundreds of these lengthy, monetized cost-b enefit reviews as well. EPA’s e fforts to conduct a fine-grained and monetized cost-benefit analysis have spanne d several years and included multiple rounds of data gathering, volumes of economic analysis, exte nsive literature reviews, and several economic

640 See, e.g. , 76 Fed. Reg. at 22,193 (col. 2) (“EPA decided to propose requiring the Director, exercising BPJ, to establish BTA impingement and entrainment mortality standards for . . . a seafood processing vessel . . . .”).123 modeling runs. EPA is embroiled in a far more intense comparison of costs and benefits then Congress intended even under the BPT standard – the Clean Water Act’ s only technology-based standard that actually required some form of cost-benefit analysis.

But when it comes time to make a final deci sion, it seems that this fine-grained, time intensive, and costly approach to cost-benef it analysis provides relatively little useful information. By its own admission, the agency st ill cannot adequately mone tize the benefits of this rule and cannot rely on the analysis it ha s performed to date in determining the best technology available. After years of analysis, dur ing which existing plants have killed billions more fish, continued to degrade hundreds of aquatic ecosystems, and placed threatened and endangered species in jeopardy, EPA still has not come to a clear conclusion about the precise monetary benefits of saving one fi sh or one billion fish. Instead, the agency proposes to kick the problem down to the states, which is exactly what Congress did not want EPA to do.

2. EPA Vastly Underestimated the Benefits of the Rulemaking Options Such that Any Reliance on the Cost-Benefit Analysis Would Be Arbitrary and Capricious.

Despite a considerable expenditure of tim e and effort, EPA was unable to value the benefits of this rule in monetary terms. EPA also made several errors in those parts of its analysis that it was able to complete. This se ction summarizes key points from a more extensive environmental economic report prepared by two of Stockholm Environment Institute’s senior economists, Frank Ackerman and Elizabeth Stan ton. The full Stockholm Environment Institute (SEI) report is attached to these comments as Ap pendix A. As the attached report explains in more detail, the errors in EPA’s analysis are significan t enough that for the ag ency to rely on this faulty cost-benefit analysis w ould be arbitrary, capricious, an d an abuse of the agency’s

discretion.

Calculating the value of the rule’s benefits in monetary terms is a two stage process: EPA must first quantify the rule ’s physical impacts – the baseline number of fish and other organisms 641 that are now being killed by cooling water intake structures but will be saved by the rule. Then, EPA faces the challe nge of attaching monetary values to those physical impacts. The agency has made significant errors at both stages.

Making only partial and conser vative corrections for the errors in EPA’s benefits estimates, the SEI report attached to this comment letter concludes that the monetized benefits of regulation approach or exceed EPA’s cost estimat es for every option that EPA explored. The corrected benefits estimates, coupled with revised cost estimates provided by Powers Engineering that address flaws in EPA’s estimate of compliance costs, 642 demonstrate that the

benefits of a national entrainment standard base d on the use of closed cy cle cooling outweigh the

costs.

641 Significantly, EPA does not even attempt to quantify the issues of phytoplankton and the small organisms (other than fish and shellfish) despite the fact that they are important components of the food chain.

642 See Section III.F.3, below.124 a. EPA Has Drastically Underestimate d the Number of Fish Killed by Cooling Water Intake Structures.

EPA appears to have significantly underestim ated the baseline number of fish killed by cooling water intake structures. Errors in this baseline calculation in evitably propagate through the rest of EPA’s cost-benefit analysis, there by casting serious doubts on the whole effort.

For example, EPA’s estimate of the number of walleye entrained and impinged annually in the entire Great Lakes region is orders of magnitude less than the number of walleye reported to have been entrained in one year at a single facility. EPA estima tes that all of the power plants and manufacturing facilities in the Great Lakes combined im pinge and entrain less than 10,000 individual walleye: eggs, larv ae, juveniles, and adults. 643 In 2005 and 2006, the operator of the Bay Shore Power Plant, located on the shore of Lake Erie in Ohio, hired the independent consulting firm Kinectrics to analyze and re port impingement and entrainment sampling data from Bay Shore and provided this data of the Ohio Environmental Protection Agency. 644 By its own estimate, Bay Shore killed over 7,000,000 walle ye larvae and 499,000 juve niles in a single

year. 645 There is no way to square EPA’s estimate of less than 10,000 indivi dual walleye deaths

in all of the Great Lakes with the plant’s evidence-based conc lusion that it killed 7.5 million.

Nor are EPA’s walleye number s the only dubious statistics in its Great Lakes analysis.

EPA estimates that 221 million individual freshw ater drums are impinged and entrained every year in all of the Great Lakes. 646 In 2005/06, Bay Shore estimated that it killed 940 million individual freshwater drums by itself. 647 Similarly, EPA estimated Great Lakes logperch deaths at 10.5 million annually. 648 Bay Shore reports killing over 30 million. 649 And EPA estimates white perch deaths at less than 10,000 for the enti re Great Lakes, while Bay Shore reports killing nearly 490,000 individuals by itself.

EPA has thus grossly underestimated the number of fish killed by power plants and manufacturing facilities in the Gr eat Lakes region. The agency s hould investigate, document and correct any similar gross errors in its estimates for that and other regions. These errors are

643 See EEBA Table C-12, p. C-16 (reporting number of “individuals” impinged and entrained); see also id . at 3-2 (explaining that EPA employs a model to convert organisms of any particular age into an equivalent number of “individuals” of any other age), 76 Fed. Reg. at 22,238 (col. 3) (defining age-one equivalent losses as “the number of individuals of different ages impinged and entrained by facility intakes, standardized to equivalent numbers of 1- year old fish”).

644 See Kinetrics, Bay Shore Power Plant Cooling Water Intake Structure Information and I&E Sampling Data , 16 (Table 5.4), 22 (Table 5.7) (Jan. 2008) (Exh. 11), also available at http://www.epa.state.oh.us/portals/35/perm its/bayshore_IE_data_collection.pdf.

645 Id . at. 16 (Table 5.4), 22 (Table 5.7).

646 See EEBA Table C-12, p. C-15.

647 See Kinetrics, Bay Shore Power Plant Cooling Water Intake Structure Information and I&E Sampling Data , 16 (Table 5.4), 22 (Table 5.7). (Jan. 2008) (Exh. 11) also available at http://www.epa.state.oh.us/portals/35/perm its/bayshore_IE_data_collection.pdf.

648 See EEBA Table C-12, p. C-15.

649 See Kinetrics, Bay Shore Power Plant Cooling Water Intake Structure Information and I&E Sampling Data , 16 (Table 5.4), 22 (Table 5.7) (Jan. 2008) (Exh. 11) also available at http://www.epa.state.oh.us/portals/35/perm its/bayshore_IE_data_collection.pdf.125 deeply problematic because the number of fish k illed by cooling water inta ke structures is the

fundamental basis of all of EP A’s benefit calculations. EPA’s underestimate of mortality – a thousand-fold undercounting of some species – underm ines the validity of its entire cost-benefit analysis.

b. EPA Cannot Accurately Monetize th e Benefits of Saving Non-Market Fish, Other Aquatic Organisms, and Ecosystems.

The problems with EPA’s cost -benefit analysis do not end w ith its gross underestimates of the number of fish that would be saved by a more stringent rule. Even if the agency’s physical estimates were corrected, EPA would still need to address significant errors and gaps in its efforts to put a dollar figure on the true value to society of fish, other aquatic organisms, and entire ecosystems that are not bought and sold in commercial markets. Several of the most significant problems with EPA’s analysis identifi ed in the SEI report are summarized below.

Even the most straightforward of the non-ma rket calculations – estimating the direct use values of fish as objects of sport – has proved quite challenging. EPA s eems to have severely

underestimated recreational fishi ng benefits. The value that EPA concludes that the average angler derives from catching a walleye in the Great Lakes – approximately four dollars – is based on EPA’s own meta-analysis. It does not app ear to match other estimates in the economic literature, which are over twenty dollars per fish, nor does it accord with th e perception of companies in the sportfishing industry. 650

Beyond direct use values, th e problems escalate dramati cally. To begin with, EPA

admits that entire and substa ntial categories of benefits, including many non-use values, are beyond its capacity to estimate. 651 EPA has not yet estimated the non-use value of any of the billions of aquatic organisms and thousands of ecosystems that are affected by cooling water

intake structures outside of th e North and Mid-Atlantic Regions. And EPA has failed to capture

the indirect use benefits of fish and healthie r aquatic ecosystems, such as scuba diving, or hunting and watching birds that eat fish. Currently, EPA places a zero value on these

activities. 652

Even in the North and Mid-Atlantic regi ons, where EPA was able to conduct a partial non-use value calculation, the agency made the problematic and unjustified assumption that people place no value whatsoever on the welfare of fish and ecosystems outside of their home region. 653 Thus, EPA assumes that Alaskans w ould place no value on saving endangered sea turtles in Florida, and that Floridians, in tu rn, do not care about the health of such iconic American rivers as the Hudson, Colorado, Columbia , Delaware, and Mississippi. In making this assumption, EPA is ignoring empirical evidence from leading environmental economists that people place substantial value on th e health of ecosystems and animals even if they are hundreds

650 See SEI Report, attached as Appendix A; see also Gentner Consulting Group, Economic Damages of Impingement and Entrainment of Fish, Fish Eggs, and Fish Larvae at the Bay Shore Power Plant (Sept. 2009) at Table 8 (Exh. 133).

651 See SEI Report.

652 See id.

653 See id.126 or thousands of miles away. 654 John Loomis, a leading economis t in the field who EPA relies on and cites for other purposes, conc luded that “on average, measuri ng only the benefits at the state level would result in just 13 percent of the national tota l public good benefits.” 655

EPA also failed to take into account the par ticular value that peopl e attach to protecting threatened and endangered species. EPA notes that cooling water inta kes have significant impacts on threatened and endangered species, bu t claims an inability to come up with any reasonable estimates for the value of these impact s. Yet model calculations that EPA included in

the EEBA demonstrate that EPA is well aware of the research literature on methods for estimating the non-use value of threatened and endangered species. 656

EPA’s model calculations, however , are problematic and would n eed to be refined before

further use. EPA’s model calculations of th e non-use value of threatened and endangered species – which are not included in the final co st-benefit analysis – depend crucially on the assumed percentage of the affected population that is lost under baseline conditions. This is doubly problematic. First, EPA used different a ssumed percentage losses for different species without providing any basis for its chosen percen tages (all of which were very low). Second, EPA’s analysis simply will not be credible un til the agency corrects the drastic quantitative impact assessment errors discussed above. For example, even if EPA could justify its assumption that requiring closed -cycle cooling would save only one percent of endangered sea turtles, one percent of a severe ly underestimated baseline number of turtles remains a severe

underestimate.

Until and unless EPA corrects its estimates of fish kills and recreational fishing benefits, completes its planned willingness to pay study, a ccounts for the substantial value that people place on environmental preservation (even from a di stance), and corrects the serious deficiencies in its approach to valuing threatened and enda ngered species, the agency will continue to dramatically undervalue the bene fits of a uniform national st andard based on closed-cycle cooling. The flaws in EPA’s present analysis, bo th in its quantification and monetization of the rule’s benefits, are sufficiently large that to re ly upon it would be arbitrary, capricious and an

abuse of discretion.

3. EPA Overestimated the Costs of Closed-Cycle Cooling.

In the proposed rule, EPA significantly overes timates the costs of installing closed-cycle cooling at existing facilities. The greatest flaw in EPA’s approach to estimating the cost of retrofits was EPA’s irrational decision, in 2007, to abandon its own thoroughly documented cost estimation model and instead use unverified figu res provided by the Electric Power Research Institute (EPRI), which is an arm of the electr ic power industry being re gulated by the rule.

654 See id.

655 See id. (quoting John B. Loomis, “Vertically Summing Public Good Demand Curves: An Empirical Comparison of Economic versus Political Jurisdictions,” 76(2) Land Economics 312, 319–20 (2000)).

656 See id.127 This section summarizes key points from a more extensive en gineering and cost report prepared by Powers Engineering. The full report is attached to this co mment letter as Appendix D. As the attached report explains in more detail:

a. EPA Has Significantly Over-Estima ted the Costs of Retrofitting Existing Power Plants to Closed-Cycle Cooling.

EPA developed a model for estimating the costs of closed-cycle cooling retrofits. The inputs for EPA’s model are thorough ly explained and corroborated wi th actual fossil and nuclear plant retrofit cost data. EPA concluded that its model generates a ccurate and conservative estimates for closed-cycle cool ing retrofits at both conventio nal and nuclear power plants. 657

But EPA abandoned its model in 2007, when the Electric Power Research Institute (EPRI), a power industry body, provided EPA with cost estimates based on th e results of a selfadministered industry survey. EPA stated that it would use EPRI’s capital cost estimates and energy penalty estimates instead of its own model results because th e two sets of estimated costs

were similar. 658

The estimates produced by EPRI and EPA are not similar at all: EPRI’s capital cost estimates are between 50% and 100% higher than EPA’s. 659 EPRI has also estimated energy penalties several times larger than EPA. And EPR I’s cost estimates are also higher than those of SPX, the largest manufacturer of power plan t cooling towers in the United States. 660

EPA should not have used EPRI’s estimates. EPRI cannot be considered a neutral party in assessing the cost or difficulty of closed -cycle cooling retrofits because EPRI member companies have consistently opposed such retrofits . And in contrast to EPA’s well documented and well understood model, there is no record evidence to corroborate EPRI’s extremely high cost estimates. Thus, EPA should have continued to use its own model.

There are only two areas in which EPA’s m odel requires substantia l changes: nuclear plant retrofit costs, and nucl ear plant outage (downtime) estimates. With these notable exceptions aside, the cost estimation model that EPA used until 2007 is conservative and fairly

accurate.

EPA’s new cost estimates – based on EPRI’s model – are not remotely similar to EPA’s original estimates, nor are they realistic, for several reasons.

First, at conventional plants, EPA’s final cost estimate is greatly inflated because EPA replaced its own well-grounded and conservative 661 cost estimate of $27 million with EPRI’s $53

657 See Powers Engineering comments on EPA 316(b) Marc h 28, 2011 TDD, William Powers, P.E., Powers Engineering, hereinafter (“Powers Report”) (attached as Appendix D).

658 See Technical Development Document at 8-15.

659 See Powers Report (section II).

660 See Powers Report.

661 In this context conservative means th at actual costs are likely to be lower.128 million estimate. EPA is wrong to claim that th ese are “similar results.” EPA’s model generates two different estimates of the capital cost of a retrofit, depending on whether a plant uses conventional (fossil fuel burning) or nuclear technology. EPRI’s model generates three different capital cost estimates, and these differ not by the plant’s technol ogy, but by whether site conditions make a retrofit “easy”, “average,” or “d ifficult.” The table below, drawn from EPA’s technical development document, displays the different estimates generated by EPA and EPRI. 662

In this chart, EPA took the example of a coo ling system with a flow rate of 200,000 gpm. EPA wrongly concluded that its cost estimates and EPRI’s estimates are similar because it compared its conventional plant capital cost estimate of $27 million to EPRI’s lower bound “easy” estimate of $32 million, and its nuclear pl ant capital cost estimate of $49 million with EPRI’s “average” estimate of $53 million. 663 But EPA did not use EPRI’s lower bound estimate to determine capital costs at conventional plan ts, it used EPRI’s higher value – $53 million – as the basis for estimating costs at all power plants. 664

At conventional plants, EPRI’s estimate of $53 million is nearly double EPA’s $27 million estimate. And EPA’s original estimate wa s already generous because it assumed a low approach temperature, deliberately over-estimated pump and fan sizes, used a cost estimate for surface condenser upgrades that is considerably higher than a manufactur er’s estimate, and did not take into account the 0.5 per cent efficiency improvement th at typically results from a condenser upgrade (which would considerably offset efficiency losses associated with

installation of clos ed-cycle cooling). 665 By replacing a well documented and conservative cost estimate of $27 million with an unsupported industry estimate of $53 million, EPA has significantly overestimated retrof it costs at conventional plants. 666

662 See Powers Report.

663 See Powers Report.

664 See TDD 8-17.

665 See Powers Report. (Sections II.B & II.C)

666 Some adjustment to the EPA model cost would be necessary to account for the rise in costs between 1999 and 2009. However, the rise in costs is on the order of 37 percent between 1999 and 2009, not a factor of two. At best, EPRI’s cost estimates are 50% higher than EPA’s. See Powers Report (providing industry standard cost inflation references and performing calculation).129 Second, at nuclear plants, EPA’s estimate s are erroneously inflated because of unspecified safety concerns. EPA’s underlying model, developed in 2002, generates estimates of retrofit costs at nuclear power plants far lowe r than the $49 million value that EPA provides in the present rulemaking. EPA stated that its 2002 model was both conservative and very accurate at nuclear plants. And EPA presented the data behind its cost model in extensive detail, including the costs of actual closed-cycle coolin g retrofits, to support its position. But, as the attached Powers report explains, the agency then arbitrarily applied a cost multiplier to its estimates in order to account for unspecified and undocumented concerns about the added expense of safely retrofit ting a nuclear power plant. 667

Using these cost multipliers, EPA estimates th at the same retrofit that costs $27 million at a conventional power plant will co st $22 million more at a nuclear pl ant. And it is on the basis of this inflated $49 million estimate that EPA clai ms it is acceptable to adopt EPRI’s even higher estimate of $53 million. But there is no support in the current record for EPA’s decision to double many retrofit costs at nucl ear plants, just as there was no record evidence to support this practice when EPA began it in 2002. Indeed, as th e attached report shows, the record contains evidence that partially contradicts EPA’s stance : statements by nuclear plant operators and regulators indicating that constr uction in close proximity to an operating nuclear plant is a familiar practice (it takes place, for example, when new generating units are built alongside an existing one) and does not raise significant safety concerns. 668

Third, EPA’s estimates of the turbine effi ciency penalty and closed-cycle cooling parasitic fan and pump loads for nuclear and fo ssil plants are unreasonably high. The attached report shows that these overestimates again re sult from EPA’s adoption of EPRI’s unsupported figures. EPRI’s figures contra dict both EPA’s own model and record evidence from existing retrofits. EPRI’s estimated turbine efficiency penalty is approximately five times the average efficiency penalty found in EPA’s own cost mode l, and about ten times the average efficiency penalty observed at some sites that have been retrofitted to a closed-cycle system. 669 And compared to EPA’s original model, the EPRI cost spreadsheet overestimates fan and pump energy requirements by 30%. Overall, as the atta ched report makes clear, EPA’s closed-cycle cooling cost model provided reasonably accurate estimates of annual average turbine efficiency penalties, fan energy demand, and pump energy demand. 670 EPA should reinstate its retrofit closed-cycle cooling cost mode l’s estimates of energy demand a nd efficiency penalties and not rely on the EPRI figures.

b. EPA Overestimated the Downtime (and Attendant Costs) Required for Closed-Cycle Cooling Retrof its at Nuclear Plants.

In 2002, EPA estimated that if facilities are gi ven a period of several years to come into compliance, as they are under the Proposed Rule , then closed-cycle conv ersions at both fossil

667 See Powers Report.

668 See Powers Report. (Section II.D)

669 With respect to the turbine efficien cy penalty, part of the overestimate ar ises from EPA’s erroneous decision to model the long-run energy penalty on the peak energy penalties observed at the height of summer, rather than adopting the average energy penalty observed over time. See Powers Report. (Section III.A)

670 See Powers Report.130 and nuclear plants would require no more than two months of additional downtime beyond that which is ordinarily scheduled. EPA provided cons iderable support for this position on the record based on its experience at several power plants. 671

EPA later increased its estimate from two mont hs to seven months at nuclear plants. Nothing in the record developed by EPA between 2002 and 2011 can support this drastic revision. EPA’s 350 percent increas e in the outage time estimate was based on a single weak data point: a letter from a pla nner at the Palisades II nuclear pl ant, written in 2002, describing a retrofit at the plant that was conducted in the early 1970’s. 672 Thirty years later, plant staff could not state definitively how long the retrofit had taken and could only infer an estimate of the plant’s outage time from whatever records remained from the 1970s. 673

As the attached Powers report explains, info rmation from better-documented retrofits and other complicated construction proj ects at nuclear plants comple ted within the past ten years strongly supports EPA’s original view that tw o months of additional downtime is a reasonable and conservative estimate (i.e., actual costs are like ly to be lower). EPA pointed out in the April

2002 TDD that four surface condensers at an Arka nsas nuclear plant were upgraded during two days of downtime. More complicated constructi on projects at nuclear power plants, such as plant replacements, have been completed in mu ch less than seven months. For example, the 2008 replacement of four steam generators at th e Diablo Canyon nuclear facility, Units 1 and 2, which involved cutting an opening in the nuclear reactor containment dome, required an outage of only ten weeks. The attached en gineering report points out that:

it is not credible that the outage time for a highly invasive nuclear reactor steam generator replacement that occurs inside the nuclear containment dome averages 2 to 2-and-a-half months, and yet the hook- up of circulating wa ter piping to an existing nuclear reactor surface condenser, an action the NRC predecessor agency stated would create no nuclear safety concerns, would require a 7-month outage. 674

EPA should assume that, at most, a closed-cyc le cooling hook-up requi res no more than two months outage time.

4. If EPA Relies on, or Authorizes Use of, a Cost-Benefit Analysis, that Analysis Must Be Significantly Improved.

If EPA uses cost-benefit comparisons at al l, the agency may use them only as Congress intended: as secondary “reality checks” intended only to avert extreme disparities between the costs and benefits of technologi es that deliver the greatest reductions in entrainment, impingement, and thermal pollution. This kind of pr actical cost-benefit analysis would lead EPA to set a uniform national standard based on the pe rformance of closed-cycle cooling systems.

671 See Powers Report.

672 See Letter from John A. Gulvas, Consumers Energy to Timothy Connor/Ashley Allen, U.S. EPA dated Feb. 28, 2002 (EPA-HQ-2002-0049-2341).

673 See id . at 7.

674 Powers Report.131 But even if EPA completes this rulemaking under the unlawful approach to cost-benefit analysis that it has applied to date, th e result should be the same. Th e economic analysis performed by SEI that is attached to this comment shows that, after correcting significanterrors in EPA’s costbenefit analysis, the benefits of a closed-cyc le cooling standard actually exceed its costs. 675
Thus, the benefits of protecting fish and aqua tic ecosystems clearly “justify” the costs of a uniform, national closed-cycle cooling standard.

a. EPA’s Approach to Cost-Benefit Analysis Should Be Reformed.

Had EPA followed the cost-benefit approach that Congress envisi oned, it would have proposed a uniform national entrainment standa rd based on the use of the best technology available: closed-cycle cooling. The Clean Wate r Act allows EPA to consider whether the costs of a closed-cycle cooling standard can be reasonably borne by an industry; they can. And EPA’s

data show that the costs of a cl osed-cycle cooling standard are not wholly disproportionate to its

benefits.

But EPA decided to compare costs and bene fits more extensivel y and probingly than Congress deemed appropriate in setting technolo gy-based standards. Despite a determined and good faith effort, EPA produced a cost-benefit an alysis that overlooks many benefit categories entirely and underestimates others, both physical ly and monetarily. This is not surprising. Through 40 years of failed environmental regulati on, Congress learned that elaborate efforts to precisely assess environmental harms and benefits would be futile and, what is worse, would leave the agency unable to enac t effective environmental regula tions at all. That is why Congress prohibited EPA from ma king cost-benefit comparisons a primary consideration in setting the best technolo gy available standard.

Further, there is a severe imbalance in any cost-benefit analysis when, as here, the costs of the proposed action can be valued commerciall y but the benefits canno t be monetized with any meaningful degree of accuracy. Faced with such uni-directional uncertainty, EPA should set

a rule that errs on the side of environmental protection.

If EPA were to apply its l ongstanding “wholly disproportiona te” test to the information that it has already analyzed, the agency could quickly set a uniform national standard based on the performance of closed-cycle cooling systems. The non-use values of the fish and other organisms saved by this rule are substantial. EPA’s initial effort to monetize them through a habitat valuation analysis generated a value of several billion dollars. 676 Thus, EPA has firm grounds to conclude that the cost s of this rule are reasonable a nd proportionate to its benefits and, indeed, that the rule’s benefits exceed its co sts. At the very least, however, there is no extreme disparity between the benefits and costs of a uniform national standard based on closedcycle cooling.

675 See SEI Report.

676 EEBA chapter 9; see also Stockholm Environment Institute report (discussing EPA’s habitat valuation analysis).132 b. EPA’s National Benefits Assessment Requires Certain Adjustments.

The most significant errors in EPA’s benef its analysis are described above in Section III.F.2 of these comments and in the report of th e Stockholm Environmental Institute, attached as Appendix A. Briefly, EPA has underestimated the number of fish and other organisms affected by this rule and the recreational and non-use benef its that people derive from healthier aquatic ecosystems. The Stockholm Environment Institute has provided a general estimate of benefits that addresses many of the deficiencies in EPA’s analysis. Sp ecifically, the Stockholm

Environment Institute:

• applied EPA’s habitat area restoration method (discusse d in the EEBA) for non-use values, but extrapolates the method’s results nationally;

• used a benefits transfer method to infer national threatened and endangered species benefits; and

• modified EPA’s estimated recreational be nefits to account for the significant discrepancies between EPA’s estimates and others.

Together, these basic modificat ions result in benefits estimates that are greater than or approach EPA’s cost estimates for all of th e options that EPA considered, including for a uniform national standard based on closed-cycle cooling. And, as noted above, EPA’s cost

estimates are themselves inflated. 677 Correcting the errors in bo th the costs and the benefits

estimates leads to the conclusion that the benefi ts of regulation are greater than the costs for every option that EPA considered. EPA should co rrect its national estimate to account for the

deficiencies identified in the Stockholm Environment Institute’s report, which is attached as Appendix A.

c. EPA’s National Costs Assessmen t Requires Certain Adjustments.

As explained above (and more extensively in the attached report of Powers Engineering), there are multiple flaws in EPA’s estimate of the costs of closed-cycle cooling retrofits. Many of the problems with EPA’s figures stem from the agency’s decision to abandon its own wellgrounded cost estimates and rely instead on signif icantly higher estimates provided by EPRI. To correct these errors, EPA should re-estimate the costs of retrofits at plants around the country using the following default values for unit costs, recommended by Powers Engineering. 678 These unit costs are based on EPA’s original estimates and some recent data from a leading cooling

tower manufacturer:

Installed cost, wet tower (in-line or back-to-back), $/gpm: 182 – 223 Installed cost, plume-abated tower (in-line or back-to-back), $/gpm: 316 – 411 Average turbine efficiency penalty (f ossil or nuclear), %: 0.30 – 0.40 Average fan parasitic ener gy penalty (fossil or nu clear), %: 0.40 – 0.60 Average pump parasitic energy penalty (fossil or nuclear), %: 0.40 – 0.60

677 See Section III.F.3, supra.

678 The ranges provided represent the variation from 12o F to 8o F design approach temperatures at different power plants.133 Total retrofit downtime, months: fossil – 1, nuclear – 2

Based on these more realistic unit cost estima tes, and assuming some variation in design approach temperatures and a mix of wet a nd plume-abated towers, Powers Engineering

concludes that the annualized na tional pre-tax compliance costs fo r power plants under Option 2 and Option 3 would be $3,029 million and $3,104 m illion annually (compared to $4,933 million and $5,079 million in EPA’s estimates, as shown in EBA , Table 3-8). Assuming no change in EPA’s estimates of costs to manufacturers, this implies that the total cost of Option 2 is 62.8 percent of EPA’s estimate and the total cost of Option 3 is 62.9 percent of EPA’s estimate.

Moreover, both EPA’s and Powers Engineering’ s calculations are very conservative (i.e., actual costs are likely to be lo wer) because they both use total current nationwide design intake flow (DIF) to calculate the capit al cost of cooling tower retrof its under Options 2 and 3. Given the ongoing coal plant retirement trends unrelated to projected 316(b) compliance costs, the actual number of existing plants needing to be re trofit will likely be smaller. For example, a December 2010 compilation of various studies by The Brattle Group evaluating the amount of coal plant retirements found estimates ranging from 10 GW to 75 GW of co al capacity will be

retired between now and 2020. 679 In fact, more than 27.5 GW of coal plant retirements have already been announced by util ities throughout the country. 680 EPA should factor these retirements into its cost analysis because plants th at are to be retired in the near future will not

need to be retrofitted with cooling towers and, therefore, will avoid a significant cost.

d. Any Site-Specific Benefits A ssessment Should Adhere to Precise Regulatory Requirements Established by EPA.

As explained previously, requi ring states to conduct site-specific cost-benefit assessments violates the Clean Water Act, o ffends the Congressional intent be hind the Act, and is arbitrary, capricious, and an abuse of EPA’s limited discretion to consider th e costs and benefits of setting a uniform, national standard. State agencies should notbe authorized to conduct any costbenefit analysis in the process of issuing NPDE S permits, because they simply cannot perform or meaningfully review such analysis in a manner th at provides any useful information. However, to the extent that EPA persists in allowing states to undertake any cost-benefit assessment, the rule should require those analyses to adhere to precise requirements established by EPA. As the attached report of the Stockholm Environment In stitute explains in greater detail, EPA should start by making four important ch anges to the site-specific cost-benefit analysis process envisioned in the Proposed Rule.

First, EPA should clarify how costs and be nefits are to be compared. EPA’s novel formulation in the Section 316(b) context that be nefits should “justify” the costs of entrainment controls is unclear and some states may in terpret it as a departure from the “wholly disproportionate” standard. A clear interpretive standard set by federal regulation would prevent states from making cost-benefit comparis ons under disparate standards. It would also

679 The Brattle Group, Potential Coal Plant Retirements Under Emerging Environmental Regulations (December 8, 2010) (Exh. 134).

680 See Electric Generating Units Planned Retirement Date Spreadsheet (developed from publicly available information), Aug. 15, 2011 (Exh. 135).134 prevent states from relying on cost-benefit consider ations in a manner that is inconsistent with the limits that Congress placed on the use of co st-benefit comparisons. Therefore, EPA should establish that the new “benefits justify the costs” standard is consistent with its existing Clean Water Act guidance: the costs of a protective measure are justified so long as they are not wholly disproportionate to the benefits conferred by that measure.

Second, EPA should ensure that government employees or contra ctors are the sole arbiters of the technical adequacy of all cost-b enefit analyses. The inte grity of the analytical process can only be assured if th e State, not the applicant, sel ects the contractors and oversees

the studies.

Third, applicants require additional guida nce on how to conduct co mplex cost-benefit analyses. Therefore, EPA should restore guidan ce statements that OMB had deleted, including EPA’s explanation of the difference between the soci al costs and the private costs to facilities of installation downtime and energy penalties and how these costs should be calculated to avoid overestimating the social costs, as well as EP A’s guidance on discount ra tes, which called for

facilities to use a “social discount rate . . . reflecting society’s ra te of time preference as opposed to a facility’s cost of capital,” and su ggested 3%, as per existing OMB guidance. 681

Finally, EPA should provide standardized de fault values and valuation methodologies for costs of control technologies, and for all major benefits categori es, suitable for use in local analyses. As the attached SEI report expl ains in more detail , EPA should require:

• Estimates of national, not re gional, non-use values – economic studies have repeatedly shown that people place a high value on preser ving and protecting ecosystems even if they do not live close to them. A complete benefits analysis must include the value that all Americans derive from protecting wildlife, not just the benefits to those people who live close to a particular waterbody.

• A clear explanation of how the heightened value of protecting th reatened and endangered species is included in the benefits analysis – Americans place a particularly high value on protecting and preserving threatened and endang ered species. This additional value must be reflected in the benefits analysis.

• Quantified uncertainty estimates – EPA should require that all cost-ben efit studies include a quantitative measure of the uncertain ty in the estimates of the number of fish and other organisms affected by a cooling water intake structure, and in the estimates of the economic costs and benefits of protec ting these organisms. Regulators should understand the error range associated with the estimates they have received.

• A buffer or margin of safety for threatened and endangered species – The difference between killing 1 percent and 2 percent of all the individual s in an endangered population can be hugely significant – it may be the diffe rence between life and extinction for that species. Where threatened or endangered sp ecies, or species of concern are involved, EPA should require that applicants do their ut most to quantify the uncertainties in their

681 See Redlined Version of Proposed Rule, p. 340.135 benefits estimate, and then base their benef its calculations on the upper end of the error

range.

• Non-use value estimates no lower than those found by EPA – Presently, EPA is conducting a national willingness to pay study to develop accurate and transferable

estimates of the non-use benefits of wildlife. If applicants or regulators can document a substantial basis to deviate upwards from EP A’s estimates, this should be permitted. But contingent valuation of environmental goods is difficult and must be done with care and transparency because an applicant can significan tly alter the results of a site-specific costbenefit analysis by manipulating estimates of non-use values. As a safeguard against inaccurate estimation studies, EPA should not a llow applicants to present non-use values for fish and aquatic ecosystems that are lo wer than those found in EPA’s forthcoming study.

G. EPA Cannot Issue a Final Rule Withou t First Consulting NMFS and FWS and Fully Complying with its Duties under Ot her Applicable Federal Environmental

Laws.

Although EPA is promulgating this proposed ru le under the Clean Water Act, the agency has a separate duty to comply with the Endange red Species Act. Under that Act, EPA has a mandatory duty “to use . . . all methods which ar e necessary to bring any endangered . . . or threatened species to the point at which the protections of the Act are no longer necessary.” 682

Also, EPA must consult with the Secretaries of the Departments of Interior and Commerce to insure that any action it authori zes, funds, or carries out “is not likely to jeopardize the continued existence of any endangered or threatened spec ies or result in the de struction or adverse modification of [critical] habitat of such species.” 683

To date, EPA has not consulted the National Marine Fisheries Serv ice (NMFS) and the Fish and Wildlife Service (FWS), the designees of the Secretaries of the Interior and Commerce, to obtain their opinions on the biological and ecologi cal impacts of this rule and the advisability of reasonable and prudent alte rnatives to EPA’s Proposed Ru le. Reasonable and prudent alternatives to EPA’s proposed action exist, including the ot her regulatory options under

consideration.

In promulgating this rule, EPA will be ta king an action within the meaning of the Endangered Species Act. 684 Specifically, EPA is requiring states to make case-by-case entrainment control decisions and is declining to set a uniform, national, technology-based standard based on the performance of closed-cycle cooling systems. Thus, EPA is authorizing existing cooling water intake structures to contin ue to take endangered sp ecies, and to adversely modify habitat that is critical to multiple endangered species, on th e vain hope that states may be

682 Nat’l Wildlife Fed’n v. Hodel , No. S-85-0837, 1985 U.S. Dist. Lexis 16490 at *11 (Aug. 26, 1985) (E.D. Cal.) (citing 16 U.S.C §§ 1536(a)(1), 1532(3)).

683 16 U.S.C. § 1536(a)(2).

684 See 40 C.F.R. § 402.02 (“Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United St ates or upon the high seas. Examples include, but are not limited to . . . the promulgation of regulations...”).136 able to take effective action to regulate these in takes. Where an EPA act ion directly continues a situation in which endangered species are being taken, EPA must first consult the Secretary of Interior, Commerce, or Ag riculture as appropriate. 685

EPA has evidence that cooling water intake structures take enda ngered and threatened species of fish. And the Proposed Rule authoriz es continued operation of existing cooling water intake structures in a manner that EPA claims will at best “minimize” over an extremely extended schedule – and, significantly, will not end – the killing of fish and other aquatic organisms, as well as the wholesale degradati on of aquatic ecosystems by CWISs. Under these circumstances, EPA has a mandatory duty to consult with the NMFS and FWS prior to promulgating a final rule.

In addition, EPA’s has duties to protect and conserve wildlife, and to cooperate with other federal agencies in the protection and c onservation of wildlife, under a number of federal laws including but not limited to: the National Environmental Protection Act, 686 the Endangered Species Act, 687 the Fish and Wild life Coordination Act, 688 the Bald and Golden Eagle Protection Act, 689 the Migratory Bird Treaty Act, 690 the Migratory Bird Conservation Act, 691 the Marine Mammal Protection Act, 692 the Wilderness Act, 693 the Coastal Zone Management Act, 694 the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 695 and Federal Land Policy and Management Act, 696 and the National Forest Management Act. 697 EPA cannot promulgate a final regula tion without first insuring that it has met its particular duties under these acts, and its general duty to protect and conserve w ildlife – particularly endangered and threatened species.

685 See Defenders of Wildlife v. EPA , 882 F.2d 1294, 1300 (8th Cir. 1989).

686 See 42 U.S.C. §§ 4321-70d.

687 See 16 U.S.C. §§ 1531-44.

688 See 16 U.S.C. §§ 661-67e.

689 See 16 U.S.C. §§ 668a-668d.

690 See 16 U.S.C. §§ 703-712.

691 See 16 U.S.C. §§ 715-715s.

692 See 16 U.S.C. §§ 1361-1421h.

693 See 16 U.S.C. §§ 1132-1136.

694 See 15 U.S.C. §§ 1451-65.

695 See 16 U.S.C. §§ 1801-91d.

696 See 43 U.S.C. §§ 1701-85.

697 See 16 U.S.C. §§ 1600-87.137 IV.

ADDITIONAL REVISIONS TO THE PHASE I RULE

ARE WARRANTED IN LIGHT OF THE RIVERKEEPER I DECISION

In addition to removing from the Phase I new facility rule the restoration-based compliance alternative and the associated monito ring and demonstration requirements (as EPA is currently proposing), another revision is also warranted in light of the Riverkeeper I decision.

In its Phase I rule, EPA required new fac ilities to limit intake volume to a level commensurate with closed-cycle cooling (Track I), 698 while also allowing th ose facilities to use technologies other than closed-c ycle cooling so long as they could demonstrate that “the technologies employed will reduce the level of adverse environmental impact from [the] cooling water intake structures to a comparable level” to that which would be achieved by closed-cycle cooling (Track II). 699 EPA further defined “comparable level” to mean a reduction in impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that would be achieved by closed-cycle cooling. 700

In the Riverkeeper I litigation, Riverkeeper and other environmental groups challenged EPA’s 90-percent threshold because it appeared to allow facilities to choose technologies that were designed to achieve only 90 percent of the reductions that EPA had selected as BTA. In defending the 90 percent threshold, EPA explained to the court that:

given the numerous factors that must be considered to determine the required level of reduction in impingement and entrainment for Track II [ i.e. , the 90 percent option] and the complexity inherent in assessi ng the level of performance of different control technologies , EPA believes it is appropriate for a new facility following Track II to achieve reductions in impingement and entrainment that are 90 percent or greater of the le vels achieved under Track I [ i.e. , closed-cycle cooling]. 701

In ruling on the issue, the S econd Circuit stated that “impingement and entrainment ... cannot always be measured directly and with ma thematical precision, the use of any alternative technologies would require the EPA to make a ju dgment call as to whether those technologies yield results ‘equivalent’ to Track I’s.” 702 Thus, the court concluded as follows: “We think it

was reasonable for the EPA to make clear ... how much ambiguity it is w illing to tolerate in measuring compliance and what it considers a re asonable margin of error in comparing the performance of different technologies.” 703 However, the court then added a critical caveat:

698 40 CFR § 125.84(b)(1).

699 40 CFR § 125.84(d)(1).

700 40 CFR § 125.86(c)(2)(i).

701 Riverkeeper I, 358 F.3d at 187-88 (emphasis added), citing 66 Fed. Reg. at 65,279 .

702 Id. at 188-89.

703 Id. at 189.138 Based on the EPA’s representation that “90 percent” compliance is permitted because of measuring error, EPA Br. at 52, it would, of course , be inappropriate for the EPA to use 90 percent as a benchm ark and allow an additional margin of error in measuring compliance with that benchmark. A facility must aim for 100 percent, and if it falls short within 10 per cent, that will be acceptable. It may not, however, aim for 90 percent and achieve only an 89 percent reduction in impingement and entrainment. 704

In other words, where an applicant propos es a suite of technologies and operational measures as equivalent to closed-cycle cooling, it must submit data show ing that the reductions are expected to be 100 percent of the level that would be achieve d by closed-cycle cooling. So long as such a demonstration is made in the permitting process, actual monitoring showing that performance was within the 10 percent margin of measuring error will be deemed to be in compliance.

In the Proposed Rule, EPA makes this same point in the context of the proposed 12 percent annual impingement mortality standard for existing facilities:

EPA recognizes that some variability in th e annual average is inevitable, and thus the only way to consistently achieve the 12 percent annual standard is to target a better level of performance as th e long-term average performance

. 705

The Phase I rule, however, does not make it clear that facilities must – as the Second Circuit held – “aim for 100 percen t” of Track I, and thus applicants and permit writers may be under the mistaken impression that facilities can instead aim for 90 percent and fall short of that reduced target without viol ating the regulations. Acco rdingly, to respond to the Riverkeeper I decision, EPA should revise 40 CFR § 125.89(b)(1)(ii) to read as follows (additions shown in italics):

§ 125.89 As the Director, what must I do to comply with the requirements of this subpart?

(b)(1)(ii) For a facility that chooses Track II, you must review the information submitted with the Comprehensive Demonstration Study information required in § 125.86(c)(2), evaluate the suitab ility of the proposed design and construction technologies and operational measures to determine whether they will reduce both impingement mortality and entrainment of all life stages of fish an d shellfish to 90 percent or greater of the reduction that could be achieved through Track I. In seeking to comply with the requirement set forth in this subsection, a facility must aim for 100 perc ent, and if it falls short within 10 percent, that will be acceptable. It may not, however, aim for 90 pe rcent and achieve only an 89 percent reduction in entrainment mortality.

704 Id. n.16 (emphasis added).

705 76 Fed. Reg. at 22,203 (col. 2) (emphasis added).139 V.

RESPONSES TO EPA’S SPECIFIC REQUESTS FOR COMMENT

A. Responses to Numbered Requests.

On pages 22,273-75 of the preamble, EPA pr ovided a numbered list of 28 “Specific

Solicitations of Comment and Da ta,” which summarized and pulled together in one place many of the requests for comment that were otherwis e scattered throughout the preamble. We respond to those requests here.

1. Definition of ‘‘Design Intake Flow.’’ EPA requests comment on whether the definition of DIF should be further revise d to clarify that EPA intends for the design intake flow to reflect the maximum volume of water that a plant can physically withdraw from a source waterbody over a specific time period. Th is would mean that a facility that has permanently taken a pump out of service or has flow limited by pi ping or other physical

limitations should be able to consider such constraints when reporting its DIF. See

Section V.G. 706

Response :

So long as facilities are not receiving im pingement and entrainment mortality reduction “credit” for fictional flow reductions (see discus sion above regarding full flow baseline) DIF

should reflect the maximum amount of wate r than can be withdrawn by the plant.

2. National BTA Categorical Standards fo r Offshore Oil and Gas Extraction and Seafood Processing Facilities. EPA requests comment and data on the appropriateness of a single BTA categorical standards [sic] for offshore oil and gas extraction facilities and seafood processing facilities. Today’s rule would continue to re quire that the BTA for existing offshore oil and gas extraction fa cilities and seafood processing facilities be established by NPDES permit directors on a ca se-by-case basis using best professional judgment. See Section V.H 707

Response :

Like all other facilities, existing offshore facilities should be s ubject to categorical

standards that minimize adverse environmental impact. EPA determined that a categorical standard requiring technologies more advanced than the screens presently in use on ocean going vessels would “result in unacceptabl e changes in the envelope of ex isting platforms, drilling rigs, mobile offshore drilling units (MODUs), seaf ood processing vessels (SPVs), and similar facilities as the technologies would project out from the hu ll, potentially decrease the seaworthiness, and potentially interfere w ith structural components of the hull.” 708 EPA should

706 76 Fed. Reg. at 22,273 (col. 2); see also 76 Fed. Reg. at 22,195 (col. 3).

707 76 Fed. Reg. at 22,273 (col. 2); see also 76 Fed. Reg. at 22,196 (col. 1).

708 76 Fed. Reg. at 22,195-96 (col. 3).140 clarify whether, in reaching the conclusion that no better categorical st andard is technically feasible, it considered (1) installation of vari able speed pumps that would better match cooling water intake with process need s, and (2) operational changes, such as limiting or delaying activities that require cooling water intake whil e a vessel is in near-s hore and other highly biologically productive waters.

Additionally, as discussed above in Section III.E.10 of these comments, EPA should clarify the text of proposed 40 C.F.R. § 125.91(d) to make it clear that only offshore seafood processing facilities – i.e., ocean going vessels – are exempt from the categorical standards proposed.

The following section of this comment letter is most relevant to this request for comment:

• III.E.10 - EPA Should Clarify that Only Offshore Seafood Processing Facilities, not Onshore Facilities, Are Exempt from the Rule.

3. Cost-cost Alternative From Phase II Rule. EPA does not have technical data for all existing facilities. EPA conclude d that the Phase II rule cost s provided in Appendix A are not appropriate for use in a facility-level cost -cost test. See Section III. Moreover, under the national requirements EPA is proposing t oday, EPA concluded that a specific costcost variance is not necessary because th e Director already has the discretion to consider such factors. EPA requests comment on these conclusions. 709

Response :

The cost data provided in Appendix A to the Phase II rule are highly speculative, unreliable, irrelevant to toda y’s rulemaking, out-dated, problematic in numerous other respects and should not be considered in facility level cost-cost tests because, among other things, they reflect only EPA’s estimate of the cost of in stalling screens at some facilities. As EPA recognizes that screens are less effective than cl osed-cycle cooling, the sc reens-only cost data is of limited utility. If EPA establishes a variance from a national standard based on closed-cycle cooling, and if that variance mechanism allows for consideration of costs (which is not required), then the appropriate comparison wi ll be between a facility’s cost of implementing closed-cycle cooling and EPA’s estimate of the average co st of such conversions nationwide.

As noted above, and as explai ned further in the attached re port of Powers Engineering,

EPA’s current estimates for the costs of closed -cycle cooling are significantly overestimated. Finally, the compliance costs to be considered in any cost-cost vari ance should include only capital expenditures, operation a nd maintenance, and energy pena lty, not speculative, indirect

add-on costs.

The following sections of this comment lette r are most relevant to this request for

comments:

709 76 Fed. Reg. at 22,273 (col. 3).141 • III.B - EPA Should Establish a National Categori cal Entrainment Standard Based on ClosedCycle Cooling;

• III.F.3 - EPA Overestimated the Costs of Closed-Cycle Cooling.

4. Entrainment Survival. There are circumstances where certain species of eggs have been shown to survive entrainment under certain conditions, however EPA has not received any new data for either the most comm on species or the species of concern most frequently identified in available studies. For purposes of today’s national rulemaking, entrainment is still pr esumed to lead to 100 percent mort ality. See Section VI. Today’s proposed rule would allow facilities to de monstrate, on a site specific basis, that entrainment mortality of one or more species of concern is not 100 percent. EPA requests comment on this approach. 710

Response :

As explained more fully above, in any instance where entrainment monitoring is conducted, EPA should not allow permitees to attemp t to demonstrate that entrainment mortality is less than 100 percent at their particular site. Assessing entrai nment mortality on a site-specific and species-specific basis is administratively unw orkable and will lead to significant delays in the permitting of cooling water intake structures for little gain.

The following section of this comment letter is most relevant to this request for

comments:

• III.E.3 - EPA and States Should Maintain an Assumption of 100 Percent Entrainment Mortality in All Site-Specific Proceedings.

5. Alternative Impingement Mortal ity Compliance Requirements. EPA requests comment and data on a provision that would requ ire facilities seeking to comply with the impingement mortality standard by meeting an intake velocity requirement either to demonstrate that the species of concern is adequately protected by the maximum intake velocity requirements, or else to employ fish friendly protective meas ures including a fish handling and return system. EPA is consideri ng this provision because the Agency is concerned that some facilitie s that comply with the impi ngement mortality requirements by reducing intake velocity to 0.5 fps or less, may still impact species of concern. See

Section VI.D.1.a. 711

Response :

As discussed above, EPA should require existing facilities to reduce th eir intake velocity to 0.5 ft/s and should additionally require those fa cilities with travelling screens to employ fish

710 76 Fed. Reg. at 22,273 (col. 3).

711 76 Fed. Reg. at 22,273 (col. 3); see also 76 Fed. Reg. at 22,203 (col. 3).142 friendly protective measures including a fish hand ling and return system because reducing intake velocity alone is not suffic ient to protect fish.

The following section of this comment letter is most relevant to this request for

comments:

• III.C - Although the Establishment of National Categorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and Problematic in Numerous Respects.

In addition, with respect to the term “species of concern” please see:

• III.E.1 - EPA Should Clarify the Meaning of th e Term “Species of Concern” and Restore Additional Protections for These Species;

• III.E.2 - EPA Should Prevent Directors from Ex cluding Any Species from the Rule’s Scope

• III.G - EPA Cannot Issue a Final Rule Without First Consulting NMFS and FWS and Fully Complying with its Duties under Other A pplicable Federal Environmental Laws.

6. Monthly and Annual Limits on Impingement Mortality. EPA requests comment on the need to tailor the impingement mortality requirements of today’s proposal to account for site-specific circumstances and/or techno logies, including location of cooling water intakes that impinge relatively few fish or other approaches that achieve impingement mortality reductions equivalent to the pr oposed performance standards. For example, if EPA were to consider number of fish killed as an alternative, it mi ght statistically model

the data or select the minimum observed va lue. Studies and information supporting these

alternatives would be most helpful. EPA also requests comment on the monthly and annual limits in the proposed rule and way in which they were calculated. 712

Response :

In general, EPA should not set (or ask Directors to set) impingement mortality limits on a site-specific basis. Nor should EPA’s national uniform standard for impingement mortality be set on a percentage basis, as the agency now proposes. Instea d, EPA should set a nationally uniform technology standard that minimizes bot h impingement and entrainment based on the performance of closed-cycle cooling systems and a velocity limit of 0.5 ft/s. As discussed above, the percentage mortality approach that EPA has adopted at present is flawed, and the 12 percent annual and 31 percent monthly limits are based on very limited data. Moreover, EPA and states are not permitted to weaken technology-based sta ndards on the basis that the source waters are already “degraded.”

The following sections of this comment lette r are most relevant to EPA’s request for

comments:

712 76 Fed. Reg. at 22,273 (col. 3); see also 76 Fed. Reg. at 22,187 (col. 3), 22,203 (col. 1).143 • III.C - Although the Establishment of National Categorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and Problematic in Numerous Respects.

In particular:

o III.C.1 - EPA Should Establish A National Categorical Impingement Standard Based on Closed-Cycle Cooling.

o III.C.3 - The 12 Percent/31 Percent Impingeme nt Mortality Reduction Requirement Is Problematic In Numerous Respects.

• Appendix B - Comments of Dr. Peter Henders on and Richard Seaby, PISCES Conservation,

Ltd.

7. Flow Basis for Option. EPA requests comment on both the th reshold and the flow basis for a variation of option 2 that would use 125 MGD Actual Intake Flow (AIF) rather than a 125 MGD Design Intake Flow (DIF) as the threshold. See Section VI.D.2. 713

Response :

EPA should maintain the use of a DIF thres hold rather than an AIF threshold. A DIF threshold is simpler to establish and the administ rative burden on states of vetting claims from applicants is already co nsiderable; EPA should not increase that burden.

Also, demand for energy has declined so mewhat during the current economic downturn. A facility may currently have a hi storically low AIF, but without an enforceable commitment to maintain the current rate of operations in the future, the facility may not stay below the AIF threshold for long as the economy recovers. On ce the NPDES permit is issued it will not be revised, and with many states facing a NPDES pe rmitting backlog that sees facilities operate on administratively continued permits for years – or, in some cases, decades – an erroneous determination that a facility falls below the th reshold may go uncorrected for ten years or longer.

If EPA is concerned about the costs or feas ibility of a national categorical standard for entrainment, it must undertake a thorough effort to craft a national standard by looking at various thresholds and options for subcategorizing the more than 1,200 facilities with cooling water intake structures affected by this rule. But those thresholds s hould be set on a cl ear and easily determined basis. DIF provides such a basis; AIF does not.

8. Waterbody Type as a Basis for Different Standards. EPA’s reanalysis of impingement and entrainment data does not suppor t the premise that the difference in the density of organisms between marine and fres h waters justifies different standards. More specifically, the average densit y of organisms in fresh waters may be less than that found

713 76 Fed. Reg. at 22,274 (col. 1); see also 76 Fed. Reg. at 22,206 (col. 1).144 on average in marine waters, but the actual density of aquatic organisms in some specific fresh water systems exceeds t hat found in some marine waters. EPA also believes the different reproduction strategies of fres hwater versus marine species make broad characterizations regarding the density less valid a rationale for establishing different standards for minimizing adverse environm ental impact. EPA requests comment on its proposal not to differentiate re quirements by water body type. 714

Response :

EPA has provided a firm environmental basi s for not distinguishi ng between facilities

situated on different waters of the United St ates: the variation in organism densities and reproduction strategies within marine and freshw ater ecosystems is sufficiently high that no category of waterbodies can be singled out for different trea tment. EPA should therefore maintain its intention to set uniform national impingement standards across all water bodies (though these should be improved, as noted above), and EPA should also set a uniform national entrainment standard (based on the use of cl osed-cycle cooling) across all water bodies.

There is also a legal requirement for uniform national standards across all waters of the United States. Congress intended “t hat the ‘design’ of intake stru ctures be regulated directly, based on the best technology available, and without resort in the first in stance to water quality

measurements.” 715 Closed-cycle cooling and a velocity limit of 0.5 ft/s are th e best technologies

available to minimize adverse environmental im pacts in all waters of the United States. Congress intended that the best technologies available be us ed, and that technology-based

standards not be relaxed based on assessments of local water quality, which in this context means considerations of the density or reproductive strategies of the aqua tic populations in a particular water body.

Establishing different standards for differe nt water bodies based on their existing ability to support certain densities and populations would allow facilities to impact the remaining and badly stressed aquatic populations in water bodies that have already been severely harmed by prior use as industrial du mping grounds. This runs directly contrary to the Clean Water Act’s goals of restoring and maintaining aquatic ecosystems, a nd courts forbade this outcome in the

earlier Riverkeeper litigation. 716

The following section of this comment letter is most relevant this request for comment:

• I.B.2 – The 1972 CWA Amendments Fundamental ly Restructured U.S. Water Pollution Regulation by Replacing Ineffectual Site-Spe cific Assessments of Water Quality with National Technology-Based Standards;

9. Capacity Utilization Rating as a Basis for Different Standards. Electric generating facilities may still continue to withdraw signi ficant volumes of water when not generating

714 76 Fed. Reg. at 22,274 (col. 1).

715 Riverkeeper I , 358 F.3d at 190; see also Riverkeeper II , 475 F.3d at 108-09.

716 See Riverkeeper II , 475 F.3d at 108-09.145 electricity. Further, EPA found that load-following and peaking plants operate at or near 100 percent capacity (and therefore 100 per cent design intake flow) when they are operating. Peaking facilities (those with a CUR of less than 15 percent, as defined in the 2004 Phase II rule) may withdraw relativel y small volumes on an annual basis, but if they operate during biologically important periods such as spawning seasons or migrations, then they may have nearly the same adverse impact as a facility that operates year round. EPA requests comment on its decision not to exclude facilities with a low capacity utilization rate. Comments who believe that EPA should include a CUR threshold in the final rule should provide a suggested threshold and explain the basis for

it. 717

Response :

EPA is correct to avoid setting any kind of capacity utilization ra te threshold for the reasons that the agency has already articulated.

10. Flow Commensurate With Closed-Cycle Cooling. EPA requests comment on whether the demonstration that a facility’s flow reducti on will be commensurate with closed-cycle cooling should be based on a defined metric, or determined by the permitting authority on a site-specific basis for each facility. EPA is proposing that a facility seeking to demonstrate flow reduction commensurate with closed-cycle cooling using flow reduction technologies and controls other than th rough closed-cycle cooling (e.g., through seasonal flow reductions, unit retirements, and other flow reductions) would have to demonstrate total flow reductions approxima ting 97.5% for freshwater withdrawals and 94.9% for saltwater withdrawals. See Section IX.D. 718

Response :

The 97.5 percent freshwater/94.9 percent saltw ater flow reduction metrics that EPA hasproposed for determining when a facility has reduced its intake flow commensurate with closedcycle cooling are clear and workable, and supported by EPA’s record. They should be

maintained in the final rule. But in that final ru le, these metrics should appl y to all facilities, not merely to new units at existing facilities. As explained above, EPA is required to set a uniform

national standard under this rule based on the performance of cl osed-cycle cooling systems. There is no need, or legal basis, for EPA to require permitting authorities to define “commensurate” anew at every facility.

11. Credits for Unit Closures. EPA requests comments on the proposed approach to allow credits for unit closures to be valid for 10 years from the date of the closure. In EPA’s current thinking this approac h reasonably allows facilities to get credit for flow reductions attributable to unit closures, but al so requires such facilities to make future progress to ensure its operati ons reflect best available entr ainment controls. See Section

IX.D.

717 76 Fed. Reg. at 22,274 (col. 1).

718 76 Fed. Reg. at 22,274 (col. 2); see also 76 Fed. Reg. at 22,253 (col. 3).146 Response :

EPA should not allow any “credit” whatsoever for flow reductions attributable to unit closures. Plant operators may choose to close a unit, but the remaining units must still use BTA to minimize the adverse environmental impacts of their cooling water intake structures.

12. Land Constraints. EPA requests comment on the use of a ratio for determining the land constraint threshold for retrofit constructi on of cooling tower, as well as data for determining alternative thres holds. EPA has not identified any facilities with more than

160 acres/1000MWs that EPA believes would be unable to construct retrofit cooling towers. EPA is exploring the use of such a ratio to support determinations regarding adequate land area to construct retrofit coo ling towers. See Section IX.D (footnote 1). 719

Response :

As explained in the attached engineering report prepared by Powers Engineering, EPA’s estimate that as many as 25 percent of facilities might have space constraints that would limit retrofit of cooling towers for th e entire facility or increase co mpliance costs is vastly overblown because EPA’s assessment is based on the use of land-intensive in-line cooling towers, not the much more space efficient back-to-back cooling tower configuration. A back-to-back cooling tower configuration requires abou t 17 percent of the space needed for two in-line towers for the same cooling capacity, assuming the spacing recomme nded for parallel banks of in-line towers. Because cooling towers can be installed in a b ack-to-back configuration at virtually any site, EPA should not set a “limited acreage” exemption (such as the 160 acres per gigawatt threshold the agency is exploring) and should acknowledge that cooling to wers are an available technology for the industry as a whole.

The following sections of this comment letter are most relevant this request for comment:

• III.B.2.b.1 – There Is Adequate Space for Coo ling Towers at Virtually Any Plant Site;

• Appendix D – Comments of William Powers, P.E., Powers Engineering

13. Proposed Implementation Schedule. EPA requests comment on its proposed schedule for implementing the proposed rule. The pr oposed schedule uses a phased approach for information submittal, requiring some facilities to submit application materials as soon as six months after rule promulgation. The longest timeframe for information submittal would not exceed seven years and six months. EPA solicits comment on the proposed schedule, and specifically seeks comment and data on the appropriate amount of time to collect data, conduct reviews, obtain comme nt, provide for pub lic participation, and issue final permit condit ions. See Section IX.E. 720

719 76 Fed. Reg. at 22,274 (col. 2); see also 76 Fed. Reg. at 22,252 (col. 3).

720 76 Fed. Reg. at 22,274 (col. 2); see also 76 Fed. Reg. at 22,254 (col. 3).147 Response :

EPA’s proposed schedule for information subm ittal is entirely too long and should be cut in half. As EPA noted in the Proposed Rule, facilities with a DIF greater than 50 MGD were previously subject to the wit hdrawn Phase II rule a nd therefore should have already compiled much of the proposed application data which can be used to meet many of the information submittal requirements. 721 The maximum time frame for im pingement compliance should be shortened to three years or less. Further, completion of cooling tower retrofits should be required no later than 36 months after appr oval of the application at fo ssil plants, and no more than 48 months after approval at nuclear plants (nuclear plants may need additional time to synchronize the retrofit outage with a refueling outage). 722

The following sections of this comment lette r are most relevant to EPA’s request for

comments:

• III.B.4 - EPA Should Shorten the Entrainment Compliance Timelines.

• III.C - Although the Establishment of National Categorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and Problematic in Numerous Respects.

In particular:

o III.C.4 - EPA Should Select the 0.5-Feet -per-Second Velocity Limit as the Impingement Standard for the Final Rule.

14. Methods for Evaluating Latent Mortality Effects Resulting From Impingement. EPA requests comment on methods for evaluating latent mortality effects resulting from impingement. EPA requests comment on whether it should specifically establish 24 or 48 hours after initial impingement as the time at which to monitor impingement mortality. EPA’s record demonstrates that a holding ti me of no more than 48 hours is optimal for evaluating the latent mortality associated with impingement while at the same time minimizing mortality associated with holding the organisms. See Section IX.F.1. 723

Response :

EPA should not measure latent mortality from impingement at all. Instead, EPA should eliminate the 12/31 percent impingement mortality standard as a compliance option and set a 0.5 ft/s velocity limit to control impinge ment as the national standard.

Measuring latent mortality is deeply probl ematic. As EPA acknowledges, “there are no standard methods for conducting impingement and entrainment studies and that there can be

721 See 76 Fed. Reg. at 22,254 (col. 2).

722 See Powers Report.

723 76 Fed. Reg. at 22,274 (col. 3); see also 76 Fed. Reg. at 22,257 (col. 3).148 variability in designing a sa mpling plan between sites.” 724 That variability, along with the complexity of the biological issues involved, wi ll inevitably lead to disputes, delays and uncertainty. Also, latent mort ality may occur after more than 48 hours. While EPA is not proposing a longer latency period becau se of the potential for greater mortality as a result of the holding, the fact remains that mortality which oc curs 72 or 96 hours after the impingement event would not be measured at all under the Proposed Ru le. As the attached biological report from PISCES Conservation explains, la tent impingement mortality has been demonstrated to occur 96 hours after the impingement event. Thus, if la tent mortality evaluati ons are conducted, they must include a holding time of at least 96 hours.

It is both more straightforward and more effective to reduce impingement altogether by lowering intake velocities, rather than allowi ng unlimited impingement but attempting to reduce the mortality rate. EPA has already concluded th at “a design through-screen velocity of 0.5 feet per second would be protective of 96% of motile organisms” and is better than attempting to reduce impingement mortality through the use of technologies such as modified travelling

screens. 725 The evidence shows not only that 18 percen t of intake structures presently meet the 0.5 ft/s velocity limit but also that many existing fac ilities can meet it. 726

The following sections of this comment lette r are most relevant to this request for

comment:

• III.C - Although the Establishment of National Categorical Standards for Impingement Is Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and Problematic in Numerous Respects.

In particular:

o III.C.2 – EPA’s Rejection of the 0.5 Ft/S Ve locity Limitation as the Primary National Standard Is Illegal.

o III.C.3 - The 12 Percent/31 Percent Impingeme nt Mortality Reduction Requirement Is Problematic In Numerous Respects.

• Appendix B - Comments of Dr. Peter Henders on and Richard Seaby, PISCES Conservation,

Ltd.

15. Counting Impinged Organisms With the ‘‘Hypothetical Net.’’ EPA requests comment on the ‘‘hypothetical net’’ approac h to measuring impingement mortality. Facilities could apply a ‘‘hypot hetical net’’ in that they could elect to only count organisms that would not have passed through a net with 3/8’’ mesh. For example, a facility that uses a finemesh screen or diver ts the flow directly to a sampling bay would only need to count organisms that could be collected if the flow passed through a net,

724 Id. at n.103.

725 See 76 Fed. Reg. at 22,204 (col. 3).

726 See TDD, Ch. 6.149 screen, or debris basket fitted with 3/8’’ mesh spacing. See Section IX.F.1. EPA further

solicits comment on alterna tive approaches that would not penalize facilities for employing fine mesh screens. 727

Response :

The response to this request is similar to the previous response: EPA should not measure impingement mortality at all. Instead, EPA should eliminate the 12/31 percent impingement mortality standard as a complian ce option and set a 0.5 ft/s veloci ty limit to control impingement as the national standard. Furthermore, as the PI SCES report explains, there is not a distinct cutoff for the size of animal that will pass through a 3/8”inch mesh. It depends on many factors, such as body shape of a partic ular species (long thin forms ca n pass through the mesh when many times longer than 3/8”), the angle at which a fish approaches the mesh (head on, most fish are smaller than side on), the amount of debr is already on the mesh, among other factors.

16. Incentives for Reducing I&E by Reducing Water Withdrawals. EPA requests comment on incentives or alternative requireme nts for exceptionally energy efficient or water efficient facili ties. See Section III. EPA also so licits comment on the regulatory provisions that encourage the use of recycled water as cooling water, including reclaimed water from wastewater trea tment plants and process water from manufacturing facilities, EPA solicits comment on other incentives to encourage use of recycled water to supplement or replace ma rine, estuarine, or freshwater intakes. 728

Response :

In principle, the commenters support effort s to encourage the conservation, use and reuse

of water and believe that EPA should incentivize the use of reclaimed water wherever possible. As discussed more thoroughly above, reclaimed wa ter is widely available for use as cooling water and EPA has underestimated the availability of this resource. EPA should incentivize the use of reclaimed water by following the State of California in requiri ng that all facilities demonstrate that they have made use of all re asonably available reclaimed water for cooling before any withdrawal of wa ter from a water of the United States is allowed.

However, we are concerned that EPA is not effectively encouraging reuse, and is instead providing a huge and unwarranted loophole from BTA requirements, when it exempts cooling

water withdrawals where the water is also used fo r desalination. In part icular, we have serious concerns about the blanket exemptions in Section 125.91(c) and Section 125.92. As drafted, these sections exempt water from the definiti on of “cooling water” if it is obtained from a desalination plant or is used in a manufacturing process either befo re or, more likely, after it is used for cooling purposes.

The problem arises because new desalinati on plants in California have received NPDES permits under the presumption that they will caus e no net impact to the marine environment by

727 76 Fed. Reg. at 22,274 (col. 3).

728 76 Fed. Reg. at 22,274 (col. 3).150 virtue of co-locating with power plants that will be required to em ploy the best technology available to minimize adverse impacts under 316(b). 729 But EPA’s proposed rule would exempt a once-through-cooled power plant from Secti on 316(b) compliance if it gives its discharge water to a desalination plant. C onsequently, in California (and s oon in other states), both the power plant and the desalination facility will be able to claim that they cause no impact because the other user is the primary consumer, while their massive water withdrawal kills sea life through entrainment and impingement at exactly the same levels as before. To ensure the objective of Section 316(b) to minimize entrai nment and impingement from cooling water intakes is achieved, the proposed la nguage in the regulations must be re-written to eliminate any and all definitions or exemptions that would poten tially allow power plants to be excluded from the regulations simply because a seawater desali nation facility happened to co-locate with the power plant.

The following sections of this comment lette r are most relevant to this request for

comment:

• I.A.13 - Water Availability and Related Energy Impact

• III.E.5 - EPA Must Prohibit the Use of Fres hwater for Once-Through Cooling in Arid Regions or Those at Risk of Drought.

• III.E.6 - EPA Should Not Exempt Cooling Water Withdrawals from the Rule Merely

Because the Water Is Also Used for Desalination.

17. Options Which Provide Closed-Cycle Cooling as BTA. EPA solicits comment on regulatory options that establish closed-cyc le cooling as BTA. EPA specifically requests comment on the regulatory options 2 and 3 in cluded in today’s proposal, which would establish closed-cycle cooling as BTA for EM at a DIF of 2 MGD and 125 MGD, respectively. See Section VI and VII. EPA further solicits comment and supporting data on alternative thresholds, including whether su ch alternative thresholds should be based

on DIF or AIF. EPA also solicits comment and supporting data for alternative criteria that would establish closed-cycle cooling as BTA for some facilities. 730

Response :

EPA should establish an entrainment sta ndard based on closed-cycle cooling as envisioned in the agency’s Option 3. Option 3 would set a national categorical standard based on closed-cycle cooling and include a narrow safety-valve variance for those plants with factors fundamentally different than the majority of pl ants that can meet such a standard. Option 3 would minimize adverse environmental impacts with feasible and readily affordable technology.

729 See, e.g., Cal. Reg’l Water Quality Control Bd., San Diego Region, Order No.R9-2009-0038 Amending Order No. R9-2006-0065 (NPDES No. CA0109223) Waste Discharge Requirements for the Poseidon Resources Corporation Carlsbad Desalination Project Discharge to th e Pacific Ocean via the Enci na Power Station Discharge Channel (May 13, 2009) (Exh. 136) also available at www.swrcb.ca.gov/rwqcb9/board_decisions/adopted_orders/2009/R9_2009_0038_ rev1.pdf

.
730 76 Fed. Reg. at 22,275 (col. 1); see also 76 Fed. Reg. 22,205 (col. 1).151 Contrary to industry’s hyperbol ic claims (many of which EP A uncritically accepted), Option 3 would not cause electric reliability problems, woul d not increase electricity prices, and would not cause any significant adverse environmental effects. Further, EPA’s economic findings are unambiguous: the stronger the re gulation, the greater th e boost to the economy and job creation.

At either discount rate EPA used in its anal ysis, Option 3 creates jobs and stimulates the economy to a greater degree than any of the other options. At a 7 percent discount rate, it produces 10,102 new jobs under EPA’s analysis, but the actual benefits to the economy of Option 3 are likely much greater. Option 3 is therefore a job-creati ng rule that will improve the

economy.

In its cost-benefit analysis, EPA was unable to quantify whol e categories of benefits, and even where EPA was able to quantify benef its, it was unable to monetize the overwhelming majority of them. A complete cost-benefit analysis, if that were even possible using existing economic tools, would show that the benefits of Option 3 clearly exceed the costs and thus the benefits obviously justify the costs, and the costs are not wholly disp roportionate to the benefits.

The following sections of this comment lette r are most relevant to this request for

comment:

• I.B.3 – As Part of the CWA’s Technology-Ba sed Regime, Section 316(b) Requires EPA to Adopt Uniform, National, Categorical, T echnology-Based and Technology-Forcing BTA Standards for Cooling Wa ter Intake Structures;

• I.C – Regulatory Background: For Forty Years, Regulation on a Case-b y-Case Site-Specific Basis Has Caused Bureaucratic Paralysis a nd Perpetuated the Unacceptable Status Quo, Contrary to Congress’s Intent;

• II.D – The Rulemaking Process: Changes Made at the Suggestion or Recommendations of OMB;

• III.A – EPA’s Interpretation of Section 316(b) and its “Approach to BTA” Contradicts the Plain Meaning of the Act and Congr ess’s Clearly Expressed Intent;

• III.B

– EPA Should Establish a Nationa l Categorical Entrainment Standard Based on ClosedCycle Cooling; and

• III.F

– EPA’s Cost-Benefit Analysis is Deeply Flawed and Illegal.

18. Costs of Controls to Eliminate Entrapment. EPA assumes facilities with modified traveling screens including a fish handling and return system would meet the proposed requirements to eliminate entr apment of fish and shellfish. EPA believes those facilities with an offshore velocity cap leading to a fore bay but without a fish return system would incur costs to meet the proposed requirements for entrapment. For fac ilities with closedcycle cooling systems, EPA does not have data on the number of facilities that also have a fish handling and return system. Further, EPA does not have data on the number of facilities that have less than 0.5 feet per sec ond intake velocity but have a cooling water152 intake system that may cause entrapment . EPA solicits comment and data on the types and numbers of facilities with a cooling wate r intake system that may cause entrapment, and the costs to eliminate entrapment. 731

Response : No comment.

19. Analysis of New Capacity. EPA requests comment on the number of new units and the amount of new capacity constructio n projected. See Section VII. 732

Response :

As discussed above, even the most expensive of EPA’s options will cause so few power plant retirements that the number of new units and amount of new capacity is irrelevant. Any retirements would be replaced many times over under even the most modest new capacity projections.

20. Monitoring Reports. EPA solicits comment on how frequently I&E mortality monitoring reports should be submitted. EPA further solicits comment on incorporating the monitoring reports into monthly DMRs, or whether less frequent reporting is appropriate. EPA also requests comment on wh ether minimum monitoring frequencies

should be established in this rule or left to the discretion of the Director. See Section

IX. 733

Response :

To the extent biological monitoring is conduc ted pursuant to the rule, EPA should specify minimum monitoring requirements that meet the exp ectations it laid out in the preamble, rather than leaving monitoring terms to be determined by th e Director. It is ineffi cient for each state to reinvent monitoring requirements (as EPA would have it) dozens of times – once for each facility.

The following sections of this comment lette r are most relevant to this request for

comment:

• III.E.4 - EPA Should Specify Minimum Monitoring Requirements.

• Appendix B - Comments of Dr. Peter Henders on and Richard Seaby, PISCES Conservation,

Ltd.

21. Seasonal Operation of Cooling Towers. EPA solicits comment on an option that would require cooling towers on some or all faciliti es but recognize the si te-specific nature of EM by allowing seasonal operation of cooli ng towers during peak entrainment season.

731 76 Fed. Reg. at 22,275 (col. 1); see also 76 Fed. Reg. at 22,251 (col. 2) and 76 Fed. Reg. at 22,204 (col. 3)

732 76 Fed. Reg. at 22,275 (col. 1).

733 76 Fed. Reg. at 22,275 (col. 1); see also 76 Fed. Reg. at 22,262 (col. 2).153 EPA also requests comment on including a simi lar provision for new units at existing facilities, which are required to achieve I& E reductions commensurat e with closed-cycle cooling in the proposed rule

. 734

Response :

Closed-cycle cooling should operated year-roun d because of the potential to entrain and impinge aquatic organisms well beyond “peak entrainm ent season.” To the extent that a facility operating closed-cycle cooling nevertheless entr ains large numbers of organisms during peak entrainment season, additional fish protective meas ures should be require d, such as seasonal
outages.

22. New Unit Provision. EPA solicits comment on the new unit provision. Specifically, EPA solicits comment on the clarity of the de finition of new unit, and whether it should be expanded to include other units such as t hose that are repowered or rebuilt. EPA also

solicits comment on whether the new unit provision should be deleted, therefore subjecting these units to the same site-speci fic entrainment BTA de termination required of existing units

. 735

Response :

EPA should revert to the new units definition and standards that it proposed to OMB with

minor revisions noted above. The version of th e proposed rule that EPA sent to OMB would have required all replacements, repowerings, and rebuilt power plan ts to meet standards based on closed-cycle cooling because those plants have th e ability to include closed-cycle cooing systems as part of the initial design of the rebuilt, repow ered or replacement plant. But OMB modified those provisions such that only “n ew units at existing facilities,” a very narrowly-defined class of entities, now have to meet the cl osed-cycle coolin g standards.

Neither the rule, nor the preamble, provide any justification for not treating replaced, repowered, or rebuilt facil ities as new units. The reasons that EPA gave for strictly regulating additional units apply equally to total replacements and repowerings 736 – this is evident from the version of the preamble that EPA sent to OMB. The current rule irrationally distinguishes between two total replacements of a facility. If an owner replaces every inch of the site, it is a new facility. But if the owner completely de molishes and replaces everything at the existing facility except for the cooling water intake structure itself, it is an existing facility. Yet all the equipment necessary to meet a closed-cycle cool ing standard is built behind the cooling water

intake structure.

EPA’s technical experts agreed that the reas ons for considering an additional unit to be a new unit apply equally to replacements and re powerings, but they were overruled by OMB.

734 76 Fed. Reg. at 22,275 (col. 2).

735 76 Fed. Reg. at 22,275 (col. 2).

736 As do the reasons EPA gave for strictly regula ting new facilities back in 2001, in the Phase I rule.154 OMB has not justified its proposed change, and in any case the office does not have technical expertise. For EPA to accept OMB’s unjustifiable modification to the rule is arbitrary and unreasonable; it is also inconsiste nt with Congress’s inte nt to control mortal ity at cooling water

intakes.

The following sections of this comment lette r are most relevant to EPA’s request for

comments:

• II.D.3 - OMB Determined that Replacements/R epowerings Are Not New Units and Deleted EPA’s Contrary Statements and Rationale.

• III.D - All Repowered, Replaced, or Rebuilt Facilit ies Must Be Subject to the Same ClosedCycle-Cooling-Based Requirements as New Units at Existing Facilities.

23. Review Criteria to Guide Evaluation of Entrainment Feasibility Factors. EPA solicits comment on the criteria specified in the regulation for gui ding the evaluation of closed-cycle cooling as BTA for EM. EPA further solicits comment on additional criteria that EPA should address, and whether such cr iteria should be devel oped in the regulation or provided in guidance. 737

Response :

State permitting directors should not be require d to evaluate whether closed-cycle cooling is the best technology available to minimize entr ainment on a site-specific basis because EPA’s record evidence supports – and the Clean Water Act requires – establishing a national categorical standard based on the performance of closed-cycle cooling systems. Furthe r, the evidence shows that states are incapable of making these determ inations in a timely manner, if at all, and certainly not in the manner that EPA envisions in the proposed rule. But in cases where a facility seeks a variance from national standards, Directors will be required to determine whether a

variance is warranted. As disc ussed above, EPA should carefully tailor any variance provision

and set rules for the Director to follow in apply that variance.

The following section of this comment letter is most relevant to this request for

comments:

• III.B.5 – Any Variance EPA Includes as Part of a Categorical Entrainment Standard Must Clearly Delineate What Issues May Be Considered by th e Director and How They Are to Be Considered.

24. Alternative Procedures for Visu al or Remote Inspections. EPA requests comment on its proposal to permit the Director to est ablish alternative procedures for conducting visual or remote inspections during periods of inclement weather. EPA also requests comment on whether the rule should specific mi nimum frequencies for visual or remote

737 76 Fed. Reg. at 22,275 (col. 2).155 inspections, or leave this to the determina tion of the permitting aut hority. See Section

IX.F. 738

Response :

EPA should maintain the requirement that coo ling water intake struct ures be inspected at least weekly to ensure that any technologies in stalled to comply with § 125.94 are maintained and operated to ensure that they will continue to func tion as designed.

25. Threshold for In-Scope Facilities. EPA requests comment on the threshold of DIF greater than 2 MGD for identifying f acilities in-scope of this rule. 739

Response :

The 2 MGD DIF threshold is appropriate for de fining the universe of facilities within the scope of the Clean Water Act. Facilities above th is level have an impact on water bodies that is

more than de minimis and the 2 MGD threshold matches the th reshold set in the Phase I rule. If EPA is concerned about costs and impacts on sma ll business of meeting a national standard that is also suitable for the nation’s largest power plants, EPA must undertake a thorough effort to

craft a national standard by looking at various thresholds a nd options for subcategorizing the more than 1,200 facilities with c ooling water intake structures a ffected by this rule. But EPA should not and cannot set a higher th reshold and leave all below-thre shold facilities to have their

BTA determination made on a BPJ basis.

26. Application Requirements. EPA requests comment on the burden and practical utility of all of the proposed application requireme nts. EPA is particularly interested in the burden of application requireme nts to facilities with DIF < 50 MGD. EPA also requests comment on its proposal to limit application re quirements for facilit ies that have already installed closed-cycle cooling, or opt to do so without a site-specifi c assessment of BTA, and whether there are additional requirement s that could be relaxed for this group

. 740

Response :

The application burdens imposed by the open-ended case-by-case process in the Proposed Rule can be dramatically lessened by se lecting Option 3. This would avoid the need for 1,200 site-specific applications, with multiple studies included in each application. Such studies would only be required in the context of a variance from a uniform national closed-cycle cooling standard. To the extent that EPA leaves any significant aspect of cooling water intake regulation to site-specific determin ation, the studies that EPA is re quiring as part of the proposed application requirements are nece ssary and unavoidable. EPA, th e states, and the public lack reliable information as to specific power plants ’ technologies, operations and fish kills and the

738 76 Fed. Reg. at 22,275 (col. 2); see also 76 Fed. Reg. 22,259 (col. 2).

739 76 Fed. Reg. at 22,275 (col. 2).

740 76 Fed. Reg. at 22,275 (col. 2); see also 76 Fed. Reg. at 22,249 (col. 2).156 required studies should fill this data gap. Applic ation requirements can be lessened for facilities with closed-cycle cooling or those that opt to inst all closed-cycle cooling.

27. Comment from State and Local Officials. EPA specifically requests comment on this proposed rule from State and lo cal officials. See Section X.E. 741

Response :

As discussed above, many states have previous ly commented to EPA that they lack the resources and expertise to make BTA determinati ons or conduct cost-benefit analyses on a sitespecific, case-by-case basis in the ab sence national categorical standards.

The following sections of this comment lette r are most relevant to this request for

comments:

• I.C. Regulatory Background: For Forty Years, Regulation on a Case-by-Case Site-Specific Basis Has Caused Bureaucratic Paralysis, Liti gation Quagmires, and the Perpetuation of the Unacceptable Status Quo, Contrary to Congress’s Intent.

• III.B.1.c(1) – States Cannot Complete Case -By-Case BTA Determinations.

• III.B.1.c(2) – States Cannot Conduct, or Mean ingfully Review, Site-Specific Cost-Benefit Analyses.

28. Comment From Tribal Officials. EPA specifically requests additional comment on this proposed action from Tribal officials. See Section X.F.

Response : No comment.

B. Responses to Additional Requests.

In addition, the preamble also contains other specific requests for comments that were not included in the list of 28 responded to above. We respond to these, which appear at various places in the preamble, here.

From Preamble Section VI.C. EPA also considered applying a confidence or tolerance limit to the long-term average in deriving the annual average standard. EPA reje cted this approach because EPA believes that facilities can achieve be tter long-term performance t han documented in the data by maintaining tight control on their tec hnology and operations and adaptively managing the technology to achieve the best possible performance. While EPA has not included any additional costs for this adaptive manageme nt, EPA believes that such adaptive management should be part of the routine maintenance an operation of the technology

741 76 Fed. Reg. at 22,275 (col. 3).157 and additional costs should not be necessary. EPA has occasionally used annual limits in the effluent guidelines program (most recen tly for the pulp and paper industry category (40 CFR 430, promulgated in 1998) and has prev iously not included a variability factor for annual limits. Thus, EPA’s proposed approach to calculating the annual standard for mortality impingement is cons istent with past practice. EPA requests comment on its proposed approach for calculating and implementing the annual standard. This technology does not minimize adverse environmental im pacts associated with entrainment, and does not sp ecifically address impingement mortality of shellfish. 742

Response :

As noted above, EPA should not measure im pingement mortality as a percentage of impingement at all. Instead, EPA should elim inate the 12/31 percent impingement mortality standard as a compliance option and set a 0.5 ft/s velocity limit to cont rol impingement as the

national standard. Please see the responses above to EPA’s fourt eenth and fifteenth requests for

comments.

But it is conceivable that, in the contex t of a variance from a national impingement standard that requires facilities to meet a 0.5 ft/s velocity lim it, measuring impingement mortality may be necessary. In that situation, EPA should not apply a variability factor for the reasons EPA presents in the preamble.

From Preamble S ection VI.D.1.b.

Entrainment Controls The proposal would require consideration of si te-specific entrainment controls for each facility above 2 MGD DIF. EPA considered pr oposing no further controls to address entrainment mortality, and to rely instead only on the BTA impingement mortality controls, which would achieve up to a 31 pe rcent reduction in total AEI. EPA has not selected this option as th e basis for national BTA because EPA believes that some facilities may be able to do mo re to control entrainment and that requiring a structured site-specific analysis of candidate BTA tec hnologies for entrainment control will allow

the Director to determine wh ere it is appropriate to require such controls. However, one outcome of the site specific analysis may be that the Director woul d determine that no other technologies beyond impingement contro l meet the criteria for election as BTA, because no other technologies ar e feasible and/or their benefits do not justify their costs. EPA requests comment on the option of basing national BTA on impingement controls only and dropping the specific requ irement for a structured si te specific analysis of entrainment BTA options , as discussed below. 743

Response :

The evidence that EPA has gathered compels EPA to establish an entrainment standard based on closed-cycle cooling as envisioned in the agency’s Option 3 because closed-cycle cooling is the best technology available

. Anything less –particularly a decision to set no

742 76 Fed. Reg. at 22,203 (col. 2-3).

743 76 Fed. Reg. at 22,205 (col. 1).158 entrainment standard at all – is a wholesal e abdication of EPA’s statutory duty. Congress specifically enacted Section 316(b) to address the massive fish kills caused by closed-cycle cooling. EPA has consistently found that the pr imary adverse environmental impacts of cooling water intake structures are impi ngement and entrainment. EPA has no authority to require BTA for minimizing impingement only and not entrainment.

The following sections of this comment lette r are most relevant to this request for

comment:

• I.A – Factual Background: Once-Through Cool ing Causes Adverse Environmental Impacts of Staggering Proportions;

• I.B. – Congress Enacted Section 316(b) as Part of the 1972 Clean Water Act Amendments to Standardize Permitting and Minimize Once-Thro ugh Cooling’s Massive Water Withdrawals and Fish Kills;

• III.A – EPA’s Interpretation of Section 316(b) and its “Approach to BTA” Contradicts the Plain Meaning of the Act and Congr ess’s Clearly Expressed Intent;

• III.B

– EPA Should Establish a Nationa l Categorical Entrainment Standard Based on ClosedCycle Cooling; and

• III.F

– EPA’s Cost-Benefit Analysis is Deeply Flawed and Illegal.

From Preamble Section VI .E. Option Selection

EPA solicits comment on Option 4 and the impacts, incl uding the cumulative impacts of today’s proposal on small entities generally. 744

Response :

Option 4 is the least protective and most legally inadequate of all the options that EPA considered and should be give n no further consideration.

EPA also requests comment on whether, if Option 4 were adopted for the final rule, it should include uniform national requirements fo r new units at existi ng facilities with DIF less than 50 MGD based on closed-cycle cooling. 745

Response :

Option 4 is the least protective and most legally inadequate of all the options that EPA considered and should be given no further consideration. New units (as properly defined) with a DIF of 2 MGD or above should be subject to un iform national requirements based on closedcycle cooling.

744 76 Fed. Reg. at 22,208 (col. 2).

745 76 Fed. Reg. at 22,208 (col. 2).159 From Preamble Section VI.I. EPA’s Costing of the Preferred Option These hypothetical scenarios illustrate the si te-specific costs if a significant number of facilities install and operate a closed-cycle cooling system. These scenarios assume facilities would install only closed-cycle cooling and opera te it year-round. This may represent an upper-bound cost fo r those facilities. EPA also assumed that cooling towers will be installed at fossil fu el plants within 10 years. EPA is aware that there are other possible scenarios for projecting which facilities might be requir ed to install closed-cycle cooling or other entrainment mortality t echnologies as a result of individual BTA determinations. Some of thes e would show lower or higher costs than those presented

here. EPA requests comment on other scenarios that might better capture the range of costs that result from the structured analys is of entrainment mortality BTA required by today’s proposed rule. 746

Response :

As explained above, and in more depth in the attached report of Powers Engineering, EPA overestimated the costs of closed-cycle cool ing. The greatest flaw in EPA’s approach to estimating the cost of retrofits was EPA’s irrational decision, in 2007, to abandon its own thoroughly documented cost estimation model and in stead use unverified figures provided by the Electric Power Research Institute (EPRI), which is an arm of the electric power industry being regulated by the rule. Consequently, EPA has ove restimated the costs of closed-cycle cooling by approximately 60 percent.

The following sections of this comment letter ar e most relevant to this request for comment:

• III.F.3 - EPA Overestimated the Costs of Closed-Cycle Cooling.

• Appendix D – Comments of William Powers, P.E., Powers Engineering

From Preamble Section IX.B. When would affected facilities be required to comply? ...if a facility plans to retrofit to wet coo ling towers to both reduce entrainment mortality and to use the resulting lower intake vel ocity to comply with requirements for impingement mortality, the Di rector may be able to allo w for compliance with the IM requirements to extend to the same schedule as the entrainment mortality requirements. However, where the Director determines a facility would need longer than 8 years to comply with the EM requirements establishe d by the Director, the proposed rule would not allow the compliance schedule for IM to extend beyond 8 years. EPA recognizes that this limitation may penalize facilities that might install cooling towers to meet both IM and EM requirements but are unable to co mplete installation within 8 years. EPA
requests comment on this limitation. 747

746 76 Fed. Reg. at 22,211 (col. 2).

747 76 Fed. Reg. at 22,248 (col. 2).160 Response :

In the draft of this proposed rule that EPA originally sent to OMB, the agency explained the firm eight year deadline for impingement co mpliance by saying that it “does not intend for the facility to do nothing to reduce [impingeme nt] until the technologies for [entrainment] have been implemented.” All facilities should be able to install closed-c ycle cooling in less than eight years, and impingement controls should be required in three years or less. To the extent that a facility installs closed-cycle cooling to meet impingement and entrainment standards, and the retrofit is expected to take longe r than usual, the fac ility should be requir ed to install interim measures to reduce impingement.

From Preamble Section IX.D. What information must I sub mit in my permit application?

Section 122.21(r)(12) Non-Water Quality Impacts Assessment EPA recognizes that in some cases it may be efficient for permit applicants to combine several of the required studies into a single document and have them reviewed holistically by a single set of peer reviewers. Such an approac h is not precluded by the proposed rule as long as the peer revi ew panel has the background appropriate to

conduct the combined review and th e permitting authority approves. EPA requests

comment on the peer review requirements and th e level of specificity regarding peer review in the draft rule text. 748

Response :

The current study process is deeply flawed because consultants and peer reviewers will be hired and paid by the applicant. In many cases, they will become advocat es for the applicant’s position rather than impartial adjudicators. This risk is multiplied because most applicants are repeat players: the parent company owns or operates multiple facilities and can provide pliant

consultants and reviewers with a st eady stream of work. Even if applicants pay for the cost of conducting studies and peer reviews, the integrity of the analytical process can only be assured if the State, not the applicant, selects the contractors and oversees the studies.

Under 125.94(d)(2), EPA would a llow facilities to implem ent technologies other than closed-cycle cooling systems that reduce entr ainment mortality by at least 90 percent of what would have been obtained via flow reduction commensurate with closed-cycle cooling under 125.94(d)(1). This compliance pr ovision mirrors the Track II provision of the Phase I rule, and is intended to provid e opportunities for facilities to consider technologies such intake reloca tion or fine mesh screens, or operational measures such as the recycle and reuse of cool ing water for other purposes... EPA seeks comment on this provision. 749

748 76 Fed. Reg. at 22,253 (cols. 1-2).

749 76 Fed. Reg. at 22,254 (col. 2).161 Response :

EPA should clarify that, in seeking to comply with the entrainment mortality requirement by demonstrating reductions in mortality that are commensurate with use of a closed-cycle system, a facility must aim for 100 percent, and if it falls short within 10 percent, that will be acceptable. It may not, however, aim for 90 percen t and achieve only an 89 percent reduction in entrainment mortality.

The following sections of this comment lette r are most relevant to this request for

comment:

• III.D.2 – All Repowered, Replaced, or Rebuilt Fa cilities Must Be Subject to the Same Closed-Cycle-Cooling-Based Requirements as “New Units at Existing Facilities.”

• IV – Additional Revisions to the Phase I Rule Are Warranted in Light of the Riverkeeper

I

Decision.

From Preamble Section IX.J. What is th e Director’s role under today’s proposal?

(4) The Director would review and approve th e site-specific impinge ment mortality plan including the duration and frequency of any monitoring beyond the minimum specified by the rule, the monitoring location, the organi sms to be monitored, and the method in which naturally moribund organisms would be identified and taken into account. EPA

solicits comment on whether the Director should revi ew, but not approve, the identified plans. 750

Response :

EPA should not measure impingement mortality at all. Instead, EPA should eliminate the 12/31 percent impingement mortalit y standard as a compliance opti on and set a 0.5 ft/s velocity limit to control impingement as the national stan dard. Please see the responses above to EPA’s fourteenth and fifteenth requests for comments.

However, if a facility should face technical constraints that prevent it from complying with a 0.5 ft/s velocity limit and impingement mo rtality monitoring is required, monitoring plans should depend on approval by the Director. Facilit ies should not be able to design their own monitoring plans without oversight because sampling is an expense that plant operators will want to minimize, they have every incentive to pr opose minimal sampling frequencies and to scale down the extent of monitoring in every other way.

At the same time, however, the Director’s ability to approve monitoring studies, as set forth in proposed 40 CFR § 125.98(c)(6), should be revised to prevent state permit directors from excluding “other specific species,” which are neither invasive nor naturally moribund, from monitoring, sampling, and study requirements. Si nce BTA determinations and compliance with

750 76 Fed. Reg. at 22,260 (col. 3).162 BTA standards will be in large part determin ed through monitoring, sampling and studies, this “species of [no] concern” provision would allow st ates to simply ignore, rather than minimize, mortality to certain species.

The following sections of this comment lette r are most relevant to this request for

comment:

• III.E.2. – EPA Should Prevent Directors from Ex cluding Any Species from the Rule’s Scope.

(6) The Director would r eview and approve the site-speci fic entrainment mortality sampling plan for new units at existing facilit ies (other than those employing closed-cycle cooling) including the duration and frequency of monitoring, the monitoring location, the organisms to be monitored, and the method in wh ich latent mortality would be identified.

EPA solicits comment on whether the Director should review, but not formally approve, the identified plans. 751

Response :

As with impingement monitoring, entrainm ent monitoring plans should also depend on approval by the Director. Facil ities should not be able to de sign their own monitoring plans without oversight because sampling is an expens e that plant operators will want to minimize, they have every incentive to propose minimal sa mpling frequencies and to scale down the extent of monitoring in every other way.

At the same time, however, the Director’s ability to approve monitoring studies, as set forth in proposed 40 CFR § 125.98(c)(6), should be revised to prevent state permit directors from excluding “other specific species,” which are neither invasive nor naturally moribund, from monitoring, sampling, and study requirements. Si nce BTA determinations and compliance with BTA standards will be in large part determin ed through monitoring, sampling and studies, this “species of [no] concern” provision would allow st ates to simply ignore, rather than minimize, mortality to certain species.

The following section of this comment letter is most relevant to this request for comment:

• III.E.2 – EPA Should Prevent Directors from Ex cluding Any Species from the Rule’s Scope.

751 76 Fed. Reg. at 22,260 (col. 3) - 22,621 (col. 1).163 LIST OF APPENDICES

Appendix A: Comments of Frank Ackerma n, Ph.D., and Elizabeth A. Stanton, Ph.D.,

Stockholm Environment In stitute-U.S. Center

Appendix B: Comments of Dr. Pete r Henderson and Richard Seaby, PISCES Conservation, Ltd.

Appendix C: Comments of David Schlisse l and Anna Sommer, Schlissel Technical Consulting

Appendix D: Comments of William Powers, P.E., Powers Engineering

Appendix E: Thermoelectric C ooling Constraint Index for 2025

Appendix F: Projected total wa ter withdrawal as percent of available precipitation in

2050

Appendix G: Water Supply Sustainability I ndex in 2050 with available precipitation computed using projected climate change

Appendix H: Reclaimed Facilities Data

Appendix I: California Reuse Analysis164 LIST OF EXHIBITS

Exhibit 1: Letter from Administrator Lisa P. Jackson to Congressman Fred Upton (December 16, 2010)

Exhibit 2: J.F. Kenny et al., Estimated Use of Water in the United States in 2005

, U.S. Geological Survey Re port, Circular 1344 (2009)

Exhibit 3: State Water Resources C ontrol Board, California Environmental Protection Agency, Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling, Final Substitute

Environmental Document (2010)

Exhibit 4: Versar, Technical Review and Evaluation of Thermal Effects Studies and Cooling Water Intake Structure Dem onstration of Impact for the Salem Nuclear Generating Station , Revised Final Report (1989)

Exhibit 5: New York State Departme nt of Environmental Conservation, Best Technology Available (BTA) for Coo ling Water Intake Structures, DEC Policy Issuing Authority , Draft (March 4, 2010)

Exhibit 6: Network for New Energy Choices, Reeling in New York’s Power Plants: The Case for Fish-Friendlier Power (June 2010)

Exhibit 7: New York State Notice of Intention to Participate and Petition to Intervene in the Nuclear Regulatory Co mmission relicensing proceeding, In re: License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. , U.S. Nuclear Regulatory Commission Docket Nos. 50- 247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, DPR-26, DPR-64 (Nov. 30, 2007)165 Exhibit 8: John Boreman and Phillip Goodyear, Estimates of Entrainment Mortality for Striped Bass and Other Fish Spe cies Inhabiting the Hudson River Estuary , American Fisheries Society Monograph (1988)

Exhibit 9: Riverkeeper, The Status of Fish Populati ons and the Ecology of the

Hudson , produced by Pisces Conservation Ltd. (May 15, 2008)

Exhibit 10: Gibson, Mark R., R.I. Div. Fish and Wildlife, Comparison of Trends in the Finfish Assemblage of Mt. Hope Ba y and Narragansett Bay in Relation to Operations at the New England Power Brayton Point Station (1996)

Exhibit 11: Kinetrics, Bay Shore Power Plant Cooling Water Intake Structure Information and I&E Sampling Data (Jan. 2008)

Exhibit 12: Christine Maye r, University of Toledo, Effects of Bayshore Power Plant on Ecosystem Function in Maumee Bay, Western Lake Erie, Annual Progress Report to NOAA: October 2010-February 2011

Exhibit 13: Public Service Commission, Wisc onsin Department of Natural Resources, Final EIS for the Elm Road Power Plant , Chapter 8

Exhibit 14: Sierra Club, Giant Fish Blenders: How Power Plants Kill Fish & Damage Our Waterways (And What Can Be Done To Stop Them) (July 2011)

Exhibit 15: Florida Power & Light Co., Assessment of the Impacts of the St. Lucie Nuclear Generating Plant on Sea Turtle Species Found in the Inshore Waters of Florida (August 1995)

Exhibit 16: Amergen Energy Company, LLC, Assessment of the Impacts of the Oyster Creek Generating Station on Kemp’s Ridley, Loggerhead, and Atlantic

Green Sea Turtles (Dec. 2004)166 Exhibit 17: C. Folke, S. Carpenter, et al ., “Regime Shifts, Resili ence, and Biodiversity in Ecosystem Management,” 35(1) Annual Review of Ecology, Evolution, & Systematics 557 (2004)

Exhibit 18: James R. May & Maya K. van Rossum, “The Quick and the Dead: Fish Entrainment, Entrapment, and the Implementation and Application of Section 316(b) of the Clean Water Act,” 20 Vt. L. Rev. 373, 382 (1995)

Exhibit 19: B. Dziegielewski and T. Bi k, Southern Illinois University Carbondale, Water Use Benchmarks for Thermoelectric Power Generation in the

United States (prepared for United States Geological Survey) (2006)

Exhibit 20: Kennedy & Mihursky, The Effects of Temperature on Invertebrates and Fish: A Selected Bibliography , University of Maryland Center for

Environmental Science

Exhibit 21: O. Donovan, D. Doyle, C. O’Neill and E. Kearns, “Thermal Plume Impact

on Fish Distributions in Barnegat Bay,” 10(3) Bull. Amer. Lit. Soc. 14 (1977)

Exhibit 22: M.J. Kennish, “State of the Es tuary and Watershed: An Overview,” SI 32 Journal of Coastal Research 243 (2001)

Exhibit 23: M.J. Kennish, M.B. Roche and T.R. Tatham, “Anthropogenic effects on aquatic organisms,” in M.J. Kennish and R.A. Lutz (eds.), Ecology of Barnegat Bay, New Jersey , at 318-338 Springer-Verlag (1984)

Exhibit 24: Oyster Creek Nuclear Generating Station Fish Kill Monitoring Report, NRC ML#003684420 (January 2000)167 Exhibit 25: Oyster Creek 2001 Annual Environmental Operating Report, NRC ML#020660222 (February 2002)

Exhibit 26: A. Cradic, New Jersey De partment of Environmental Protection, Oyster Creek Generating Station fined for wa ter violations and fish kills: DEP seeks compensation for Natural Resources Damages (December 12, 2002)

Exhibit 27: Federal En ergy Regulatory Commission, Final Environmental Assessment for Hydropower License, Warrior River Hydroelectric Project at 15-16, 40, 136, P-2165-022 (March 2009)

Exhibit 28: Ken Foskett, Margaret Newkir k, Stacy Shelton, “Georgia’s Water Crisis: The Power of Water,” Atlanta Journal Constitution (November 18, 2007)

Exhibit 29: Council on Environmental Quality, Proposed National Objectives, Principles and Standards for Water and Related Resources Implementation Studies (Dec. 3, 2009)

Exhibit 30: Letter from C. Richard Bozek, EEI ’s Director of Environmental Policy to Mr. Terrance L. Breyman, Deputy Associate Director for Natural Resources, CEQ at 5, 3 (April 5, 2010)

Exhibit 31: Lisa Song, “Heat Waves Putting Pressure on Nuclear Power's Outmoded Cooling Technologies,” SolveClimate News (May 4, 2011) (Exh. 31)

Exhibit 32: National Research Council, Adapting to the Impac ts of Climate Change (2010)

Exhibit 33: National Energy T echnology Laboratory (“NETL”), Estimating

Freshwater Needs to Meet Futu re Thermoelectric Generation Requirements: 2010 Update (Sept. 30, 2010)168 Exhibit 34: Brent Barker, “Running Dry at the Power Plant,” EPRI Journal at 29-30 (Summer 2007)

Exhibit 35: Nicole T. Carter, Congressional Research Service, Energy’s Water Demand: Trends, Vulnerabilities, and Management (Jan. 5, 2011)

Exhibit 36: Sujoy B. Roy, Karen V. Su mmers & Robert A. Goldstein, “Water Sustainability in the United States and Cooling Water Requirements for Power Generation,” 126 Water Resources Update 94 (Nov. 2003)

Exhibit 37: Union of Concerned Scientists, The Energy-Water Collision: Power and

Water at Risk (June 2011)

Exhibit 38: U.S. Department of Agriculture Forest Service, 2000 RPA Assessment of Forest and Range Lands , FS-687 (Feb. 2001)

Exhibit 39: Energy Information Administration, Annual Energy Outlook 2010 with Projections to 2035 (2010)

Exhibit 40: Mitch Weiss, Associated Press, Southern Drought May Force Nuclear

Plants to Shut Down (Jan. 24, 2008)

Exhibit 41: Union of Concerned Scientists, Got Water? (Dec. 4, 2007)

Exhibit 42: Peter Hanlon, Jellyfish to Power Plants: You Suck , http://www. ecocentricblog.org/2011/07/26/jellyfish- to-power-plants-you-suck/ (July 26, 2011)

Exhibit 43: U.S. Nucl ear Regulatory Commission, McGuire Nuclear Station Licensee Event Report 369/2011-01, Revision 1 (Apr. 1, 2011)169 Exhibit 44: Sujoy Roy et al., Tetra Tech, Evaluating Sustainability of Projected Water Demands Under Future Climate Change Scenarios (2010)

Exhibit 45: 113 Congressional Record 30129 (1967)

Exhibit 46: Thermal Pollution, Hearings before the Subcommittee on Air and Water of

the Senate Committee on Public Works , 90th Congress, Parts 1-4 (1968)

Exhibit 47: Office of Science and Te chnology of the Executive Office of the President, Considerations Affecting Steam Power Plant Site Selection , 46 (1968)

Exhibit 48: U.S. EPA, Development Document for Best Technology Available for the Location, Design, Construction and Capac ity of Cooling Water Intake Structures for Minimizing Ad verse Environmental Impact (1976)

Exhibit 49: Clark and Brownell, Electric Power Plants in the Coastal Zone: Environmental Issues, American Littoral Society Special Publication (1973)

Exhibit 50: New York Times Abstracts , May 24, 1972, p. 94, col. 1; and March 1, 1972, p. 77, col. 3.

Exhibit 51: New York Times Abstracts , August 16, 1972, p. 41, col. 1.

Exhibit 52: Materials from the Nationa l Archives relating to Congressional

Deliberations about Section 316 of the Clean Water Act.170 Exhibit 53: Pages 196-97 of Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Libr ary of Congress), Ser. No. 93-1 (1973)

Exhibit 54: In the Matter of: Carolina Power & Light Company (Brunswick Steam Electric Plant) , Decision of the General Counsel, EPA GCO 41 (June 1, 1976)

Exhibit 55: Pages 350-60 of Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Libr ary of Congress), Ser. No. 93-1 (1973)

Exhibit 56: Senate Report No. 414, 92d Congress, 1st Session (1971)

Exhibit 57: Conf. Rep. on S. 2770 (October 4, 1972), 1 Legislative History of the

Federal Water Polluti on Control Act of 1972 170 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973)

Exhibit 58: Page 798 of Legislative History of the Fe deral Water Pollution Control Act of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1 (1973)

Exhibit 59: In the Matter of Entergy Nucl ear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC , Interim Decision of the Assistant

Commissioner of the N.Y. State Department of Environmental Conservation (Aug. 13, 2008)

Exhibit 60: Letter from Mich ael Jirousek, FirstEnergy Ge neration Corp. to Naajy S. Abdullah, Ohio EPA re FirstEnergy’ s Comments on Renewal of NPDES Permit for Bay Shore Plant (May 26, 2010)171 Exhibit 61: John Boreman, “Surplus Production, Compensation, and Impact Assessments of Power Plants,” 3 Envtl. Sci. & Pol’y 8445 (2000)

Exhibit 62: Super and Gordon, “Minimizi ng Adverse Environmental Impact: How Murky the Waters,” The Scientific World (2002)

Exhibit 63: Letter from JoAnne Rau, Director, Environmental Safety and Management, Dayton Power and Ligh t Company to Sean Ramach, US EPA Region 5 (Apr. 28, 2011)

Exhibit 64: In the Matter of Millstone Power Station , Before the Connecticut Department of Environmental Pr otection, Office of Adjudications, Application No. 199701876, Applicant’s Po st Hearing Submittal (May 8, 2009)

Exhibit 65: In the Matter of Dynegy Northeast Generation, Inc., on behalf of Dynegy Danskammer LLC (Danskammer Generating Station) , DEC No.: 3-3346- 00011/00002, SPDES No.: NY-0006262, D ecision of the Deputy

Commissioner of the N.Y. State Department of Environmental Conservation (May 24, 2006)

Exhibit 66: In the Matter of the Application of Mi rant Bowline LLC (Mirant) For a State Pollution Discharge Eliminat ion System Permit Renewal for the Bowline Point Generating Station (Units 1 and 2)

, DEC # 3-3922- 00003/00003, SPDES # NY-0008010 , Post-Issues Conference Brief by the Staff of the New York State Departme nt of Environmental Conservation, (June 29, 2006)

Exhibit 67: Letter from Mark Sanza, Assistant Counsel, NY DEC to the Hon. Maria E. Villa and the Hon. Daniel P. O’Connell, Administrative Law Judges, NY DEC (May 16, 2011)172 Exhibit 68: Letter from Elise N. Zoli, A ttorney for Entergy, to the Hon. Maria E. Villa, Administrative Law Judge, NY DEC (May 17, 2011)

Exhibit 69: Letter from Joseph M. Reidy, A ttorney for Dayton Power & Light to John Sadzewicz, Ohio EPA (July 11, 1989)

Exhibit 70: Letter from William L. Patber g, Attorney for Dayton Power & Light to Paul Novak, Ohio EPA (Apr. 9, 2003)

Exhibit 71: Alden Research Laborat ory and Burns Engineering Services, An Engineering & Cost Assessment of Retrofitting Closed-Cycle Cooling Technologies and E.F. Barrett Power Station (September 2007)

Exhibit 72: Ohio EPA, Response to co mments document relating to FirstEnergy Bayshore plant, National Pollutant Discharge Elimination System (NPDES) permit (Oct. 2010)

Exhibit 73: Saratoga Associates, Indian Point Energy Center Closed Cycle Cooling Conversion Feasibility Study Visual Assessment (June 1, 2009)

Exhibit 74: Enercon Services, Inc., Engineering Feasibility and Costs of Conversion of Indian Point Units 2 and 3 to a Closed-Loop Condenser Cooling Water Configuration, prepared for Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC (Feb. 12, 2010)

Exhibit 75: In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nucl ear Operations Inc.’s CWA § 401 Application for Water Quality Cert ification, DEC Application Numbers: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) , Town of Cortlandt Petition for Party Status in Joint Adjudicatory Hearing for Water Quality Certification (July 9, 2010)173 Exhibit 76: In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nu clear Operations Inc.’s Joint Application for Water Quality Certification

, DEC Application Numbers: 3-5522-00011/00030 (IP2) and 3-5522-00105/00031 (IP3) , Town of

Cortlandt Memorandum of Law in S upport of Cortlandt’s Petition for Party Status (Sept. 23, 2010)

Exhibit 77: Dynegy Moss Landing, LLC, State Water Resources Control Board OnceThrough Cooling Water Policy Implem entation Plan for the Moss Landing

Power Plant (Apr. 1, 2011)

Exhibit 78: E-mail from John Dennis, LADW P to Jonathan Bishop, California State Water Resources Control Board (Jul. 22, 2010)

Exhibit 79: In the Matter of the Natural Re sources Defense Council (NRDC), the Sierra Club, and the Great Lakes Envi ronmental Law Cent er (GLELC) on the permit issued DTE Energy, De troit Edison Company Harbor Beach Power Plant (DTE Energy) , Respondent Michigan Dep’t of Envtl. Quality’s Pre-Hearing Statement (Aug. 2, 2011) (a BTA permitting decision made in 1976 need not be revisited)

Exhibit 80: Enercon Services, Inc., Evaluation of Alternative Intake Technologies at Indian Point Units 2 & 3, prepared for Entergy Nuclear Indian Point2, LLC, and Entergy Nuclear Indian Point 3, LLC (Feb. 12, 2010)

Exhibit 81: Public Fact Sheet, Dayton Po wer & Light, “J.M. Stuart Station NPDES Permit Renewal, Sprigg Township, Ohio” (Spring 2011)

Exhibit 82: Midwest Generation, Appropriate Thermal Water Quality Standards for the Chicago Sanitary and Ship C anal and Lower Des Plaines River (Mar. 22, 2007)174 Exhibit 83: In the Matter of: Carolina Power & Light Company (Brunswick Steam Electric Plant) , USEPA Environmental A ppeals Board, 1978 EPA App. LEXIS 4 (February 20, 1978)

Exhibit 84: Documentation of Changes Made During Executive Order 12866 OMB Review – Cooling Wate r Intakes 2040-AE95 NPRM , Document ID: EPAHQ-OW-2008-0667-1295

Exhibit 85: Document Submitted to Initiate EO 12866 Review - Cooling Water Intakes

2040-AE95 NPRM FRN [DCN 10-6625A], Document ID: EPA-HQ-OW2008-0667-1295.1

Exhibit 86: EPA-HQ-OW-2008-0667-1295 2 with markup showing [DCN 10-6625B],

Document ID: EP A-HQ-OW-2008-0667-1407

Exhibit 87: EPA, 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)

Exhibit 88: Entergy Corp. v. Riverkeeper, Inc. , 129 S. Ct. 1498, Transcript of Oral Argument (Dec. 2, 2008)

Exhibit 89: Statements of NYS Dept. of Env. Cons., Division of Fish, Wildlife, and Marine Resources, provided to U.S. EPA, re Public Meeting to Discuss Adverse Environmental Impacts resulting from Cooling Water Intake Structures [DCN 1- 5025-PR] (June 29, 1998)

Exhibit 90: Phase II Comment Letter from Peter Duncan, Deput y Commissioner of the Office of Natural Resources, NYS DEC to EPA Proposed Rule

Comment Clerk re the NPDES Pr oposed Regulations to Establish Requirements for Cooling Water Inta ke Structures at Phase II Existing Facilities (August 7, 2002)175 Exhibit 91: Phase II Comment Letter from Dennis Hart, Assistant Commissioner, Environmental Regulation, New Jersey Department of Environmental Protection to EPA Proposed Rule Comm ent Clerk re Cooling Water Intake Structures (New Facilities) (November 9, 2000)

Exhibit 92: Phase II Comment Lettr from Bradley M. Campbell, Commissioner, New Jersey Department of Environmenta l Protection to EPA Proposed Rule Comment Clerk re Cooling Water Intake Structures (Existing Facilities) (Aug. 8, 2002)

Exhibit 93: Phase II Comment Letter from Ga ry Aydell, Technical Advisor, Office of the Secretary, Louisiana Department of Environmental Quality to EPA Proposed Rule Comment Clerk re Cooling Water Intake Structure (Existing Facilities: Phase II) Proposed Rule (August 8, 2002)

Exhibit 94: Phase II Comment Letter from Bill McCracken, Chief of Permits Section, Surface Water Quality Division, Michig an Department of Environmental Quality, re 316(b) Burden [DCN 4-0049] (January 24, 2002)

Exhibit 95: NPDES Permit E xpiration Date spreadsheet

Exhibit 96: Abt Associates, Inc., P2F Compliance Years (February 13, 2004)

Exhibit 97: Attachment to EPA Memorandum re Implementation of Section 316(b) in NPDES Permits (Feb. 27, 2003)

Exhibit 98: Mary Phillips-Sandy, “New Yo rk Budget: The 5 Most Painful Cuts,” A OL
N EWS (Feb. 1, 2011)

Exhibit 99: Gary Robertson and Martha Waggoner, “Final NC budget takes aim at environmental policy”, Bloomberg Business Week (June 3, 2011)176 Exhibit 100: Shaun McKinnon, Arizona budget cuts hurting water and air agencies

, T HE A RIZONA R EPUBLIC (May 4, 2010)

Exhibit 101: Juliet Eilperin, EPA budget cuts put states in bind , T HE W ASHINGTON
P OST (June 20, 2011)

Exhibit 102: Letter from John V. O’Shea, Ex ecutive Director, Atlantic States Marine Fisheries Commission to Proposed Rule Comment Clerk, EPA, re Cooling Water Intake Structure (Existi ng Facilities: Phase II) (Aug. 7, 2002)

Exhibit 103: Letter from Celeste Cantu, Ex ecutive Director of the California State

Water Resources Control Board to EPA Proposed Rule Comment ClerkW-00-32 re Comments on National Pollution Discharge Elimination System Proposed Regulations to Establish Requirements for Cooling

Water Intake Structures at Phase II Existing Facilities (Proposed Rule) (August 5, 2002)

Exhibit 104: Letter from Denise Sheehan, Executive Deputy Commissioner, New York DEC to Water Docket, EPA re Ne w York State Department of

Environmental Conservation comm ents regarding the Proposed Regulations to Establish Require ments for Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability (NODA), dated March 19, 2003 (June 2, 2003)

Exhibit 105: NY DEC, Further Comments to the U.S. Environmental Protection Agency on its “Issues for Discussion at the Public meeting on September 10 and 11, 1998, Regarding §316(b) Rulema king” held in Alexandria, VA (Oct. 5, 1998)

Exhibit 106: Nuclear Regulatory Commi ssion, Press Release “Nuclear Regulatory Commission, Department of Energy a nd Nuclear Energy Institute Sponsor February Workshop on Extended Operat ion for Nuclear Power Plants,” (December 22, 2010)177 Exhibit 107: Dynegy Moss Landing, LLC, State Water Resources Control Board OnceThrough Cooling Water Policy Implem entation Plan for the Moss Landing

Power Plant (Apr. 1, 2011)

Exhibit 108: E-mail from John Dennis, LADW P to Jonathan Bishop, California State Water Resources Control Board (Jul. 22, 2010)

Exhibit 109: M.J. Bradley & Analysis Group, Ensuring a Clean, Modern Electric Generating Fleet while Maintaining Electric System Reliability (2010)

Exhibit 110: Bipartisan Policy Center, Environmental Regulation and Electric System Reliability (2011)

Exhibit 111: J. McCarthy and C. Cope land, Congressional Research Service, EPA’s Regulation of Coal-Fired Powe r: Is a “Train Wreck” Coming? (July 11, 2011)

Exhibit 112: R. McCullough, Economics of Closed-Cycle Cooling in New York (June 3, 2010)

Exhibit 113: El Segundo Homepage we bsite, Modernizing El Segundo’s Power Generating Station

Exhibit 114: Sejal Choksi “ Alternatives to Once-Thr ough Cooled Power Plants”, San Francisco Bay Crossings (July 2009)

Exhibit 115: New York State Department of Environmental Conservation, Aquatic Habitat Protection website (2011)

Exhibit 116: U.S. EPA, Region I – New England, In the Matter of Dominion Energy Brayton Point, LLC, Brayton Point Power Station, Somerset,178 Massachusetts, NPDES Permit No. MA0003654, Docket No. 08-007, Findings and Order for Compliance (Exh. 116).

Exhibit 117: Memo to Paul Shriner, EPA from Kelly Meadows, Tetra Tech, Subject: Analysis of swim speed data (December 8, 2008)

Exhibit 118: Columbia Basin Fish & Wildlife News Bulletin, “USFWS Announces Work Plan to Deal With Backlog of ESA Listing Determinations” (May 13, 2011)

Exhibit 119: J.A. Veil, Argonne National Laboratory, Use of Reclaimed Water for Power Plant Cooling (Aug. 2007)

Exhibit 120: Radisav D. Vidic & David A. Dzombak, University of Pittsburgh Department of Civil and Environmental Engineering, Reuse of Treated

Internal or External Wastewaters in the Cooling Systems of Coal-Based

Thermoelectric Power Plants (2009)

Exhibit 121: National Energy Technology Laboratory , Use of Non-Traditional Water for Power Plant Applications: An Ov erview of DOE/NETL R&D Efforts (2009)

Exhibit 122: Electric Power Research Institute, Use of Alternati ve Water Sources for Power Plant Cooling (2008)

Exhibit 123: U.S. Department of Energy, Office of Fossil Energy, “ Project Fact Sheet ”

Exhibit 124: U.S. Department of Energy, Office of Fossil Energy, “ Internet-Based GIS Catalog of Non-Traditional Sources for Cooling Water for use at

America’s Coal-Fired Power Plants” (2009)179 Exhibit 125: ALL Consulting, GIS Catalog of Non-Tradi tional Sources of Cooling Water for Use at America’ s Coal-Fired Power Plants (2011)

Exhibit 126: National Energy Technology Laboratory, Use of Treated Municipal

Wastewater as Power Plant Cooli ng System Makeup Water: Tertiary Treatment Versus Expanded Chemical Regimen for Recirculating Water Quality Management

Exhibit 127: U.S. Geological Survey, Estimated Water Use in the United States in 1995 (1998)

Exhibit 128: U.S. Geological Survey, Estimated Use of Water in the United States in

2000 (2004)

Exhibit 129: EPRI, Water & Sustainability (Volume 3): U.S. Water Consumption for Power Production – The Next Half Century , Topical Report No. 1006786 (Mar. 2002)

Exhibit 130: Erik Mielke, Laura Diaz An adon, & Venkatesth Narayanamurti, “Water Consumption of Energy Resource Extr action, Processing, and Conversion:

A review of the literature for estim ates of water intensity of energyresource extraction, processing to fuel s, and conversion to electricity,” Energy Technology Innovation Policy Discussion Paper No. 2010-15,

Belfer Center for Science and Inte rnational Affairs, John F. Kennedy School of Government, Harvard University (Oct. 2010)

Exhibit 131: California State Water Resour ces Control Board (SWRCB), Res. No. 75- 058 (June 19, 1975)

Exhibit 132: Cal. Reg’l Water Qu ality Control Bd., San Diego Region, Order No.R9- 2009-0038 Amending Order No. R9 -2006-0065 (NPDES No. CA0109223) Waste Discharge Requirements for th e Poseidon Resources Corporation Carlsbad Desalination Project Dischar ge to the Pacific Ocean via the Encina Power Station Discharge Channel (2009)180 Exhibit 133: Gentner Consulting Group, Economic Damages of Impingement and Entrainment of Fish, Fish Eggs, and Fish Larvae at the Bay Shore Power Plant (Sept. 2009)

Exhibit 134: The Brattle Group, Potential Coal Plant Retirements Under Emerging Environmental Regulations (December 8, 2010)

Exhibit 135: Electric Generating Units Planned Retirement Date Spreadsheet (developed from publicly available information), Aug. 15, 2011

Exhibit 136: Cal. Reg’l Water Quality Control Bd., San Diego Region, Order No.R9- 2009-0038 Amending Order No. R9-2006-0065 (NPDES No. CA0109223) Waste Discharge Requirements for the Poseidon Resources Corporation Carlsbad Desalination Proj ect Discharge to the Pacific Ocean

via the Encina Power Station Di scharge Channel (May 13, 2009)