UNITED STATES ENVIRONMENTAL 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 AND POLICY CENTER, CLEAN AIR TASK FORCE, 

NETWORK FOR NEW ENERGY CHOICES, CALIFORNIA COASTKEEPER 

ALLIANCE, SOUNDKEEPER, INC., DELAWARE RIVERKEEPER NETWORK, 

SAVE THE BAY – RHODE ISLAND, FRIENDS OF CASCO BAY, NY/NJ BAYKEEPER, 

HACKENSACK RIVERKEEPER, SANTA 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 SUPER LAW GROUP, 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, 2011 
i 

SUMMARY OF CONTENTS1

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 CLEAN WATER ACT’S 

STATUTORY MANDATE, IS ARBITRARY, CAPRICIOUS, AN ABUSE OF 

DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW, IS 

SIGNIFICANTLY WEAKER THAN EPA’S PRIOR 316(b) RULES, AND WILL NOT 

PROTECT AQUATIC RESOURCES UNLESS 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 PHASE I RULE ARE WARRANTED IN LIGHT 

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

V. RESPONSES TO EPA’S SPECIFIC 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 kills, yet the staggering 

aquatic mortality continues unabated as if it were still 1972. Today, Americans use electricity to 

power their cell phones and tablet PCs instead of rabbit-eared televisions, but cooling water 

regulation remains frozen in time as the plants supplying that power continue to kill enormous 

numbers of fish, overheat our waterways, and severely damage aquatic ecosystems using exactly 

the same once-through cooling systems as they did two generations ago. Unfortunately, the 

proposed rule2

 does little to solve this problem, despite 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 issuance 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 had 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 power plant intake structures. The Administrator refused to 

postpone the new rule, explaining to the Congressman: 

By the time the agency takes 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 need 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 less 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 plants 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 effectively accomplished. The only “regulatory certainty” EPA 

has bestowed upon industry is the certainty of knowing 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 Pollutant 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 Congressman Fred Upton, December 16, 2010, at 1 (emphasis 

added), submitted as Exhibit 1 to these comments. Hereinafter, 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, national, categorical, technology-based, and 

technology-forcing standards in favor of case-by-case assessments of consequential water 

quality effects. EPA begins with an unlawful premise that a technology must be capable of 

being implemented universally as a prerequisite for setting national categorical standards and 

proceeds to ignore nearly all of the fundamental precepts that Congress established as the 

foundation of the Clean Water Act’s technology-based framework. 

• EPA’s reliance on open-ended cost-benefit 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-making 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 this rulemaking illustrates exactly why Congress meant to constrain 

EPA’s discretion in that regard. 

Entrainment

• The Proposed Rule does little to change the unacceptable status quo and protect the 

aquatic environment from entrainment. EPA should establish an entrainment standard 

based on closed-cycle cooling as envisioned in the agency’s Option 3. The agency had 

before it a regulatory option – a national categorical standard based on the performance of 

closed-cycle cooling systems (Option 3) – that would protect the environment at a reasonable 

cost to industry, create jobs, and cause no significant adverse effects on the environment, 

electric reliability, or consumer prices. EPA unlawfully rejected that option in favor of 

preserving the status quo. Closed-cycle cooling is a feasible and readily affordable 

technology. A national, categorical entrainment standard based on that technology could 

include a narrow safety-valve variance to properly take account of site-specific factors for 

those plants fundamentally different than the majority. Parameters for such a variance are 

proposed below.

• Contrary to industry’s hyperbolic claims, Option 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 ratepayers, 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 annualized 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 limitation, 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 percent of total capacity, which 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 EPA 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 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-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 Environment 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 cooling 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 setting (Option 1) is a wholesale 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 the 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 plant 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 permitting authorities would 

begin with a rebuttable presumption that closed-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 insufficient to begin with, but OMB further weakened it, leaving a 

completely rudderless decision-making process that allows state agencies to consider an 

open-ended set of factors the director deems 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 already doing.” OMB’s changes thus render the entire rule an 

elaborate ruse for doing nothing at all. 
v 

Impingement

• EPA should establish a national categorical impingement standard based 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 impingement 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 protective devices on travelling screens, install barrier nets for 

shellfish in marine waters, and provide a mechanism for “entrapped” fish (for example, those 

caught in a forebay) to escape. 

• Although EPA found that reducing intake velocity to 0.5 feet per second would be more 

protective than other impingement mortality standards it considered, EPA nevertheless 

gave existing facilities the choice between the velocity limit and meeting a twelve-percentannual impingement mortality standard (i.e., meaning that no more than twelve percent of 

impinged fish may die in a given year). The twelve-percent standard, however, is not only 

weaker than the velocity limit but would also 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 percent standard would 

disproportionately affect those species, and would cause plant operators to seek to invoke a 

provision of the Proposed Rule that would allow permit writers to exclude certain species 

from monitoring requirements and calculations. 

Definition of “New Unit”

• EPA should revert to the new units definition and 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 provisions such that only “new units at existing 

facilities,” a very narrowly defined class of entities, now have 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 protect “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 endangered under State or Federal law.”6

 Sadly, a decadeslong backlog of endangered species listings means that hundreds of species whose claims to 

endangered or threatened status are supported by substantial scientific evidence fit into this 

category. EPA should define and extend additional protections to species of concern, as it 

did in the original Phase II rulemaking. 

• EPA should prevent states from excluding 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 state permit directors from excluding “other 

specific species,” which are neither invasive nor naturally moribund, from monitoring, 

sampling, and study requirements. Since BTA determinations and compliance with BTA 

standards will be in large part determined through monitoring, sampling and studies, this 

“species of [no] concern” provision would allow 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 delays in the permitting of cooling water intake 

structures, for little, if any, gain. EPA should 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 practices 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 for 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 for 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 freshwater intake. EPA’s proposed 

approach fails to fully recognize either the availability of reclaimed water or the public and 

environmental benefits of using reclaimed water for cooling and fails explicitly to require 

local consideration of this readily available option.

• EPA should not exempt cooling water withdrawals that are also used for desalination. The 

proposed exclusion of seawater used for both cooling and desalination from the definition of 

“cooling water” would allow the power plant to contend 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 water is cooling water, leaving the withdrawal 

completely unregulated, contrary to the intent of Section 316(b). 

• EPA should require that if a calculation baseline 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 approach that does not use a calculation baseline. 

In fact, EPA has just punted the calculation baseline issue to the states. Consequently, EPA 

should either make clear in the rule that no calculation baseline can be used in implementing 

the rule or, if a calculation baseline may be used, then the rule should require that the 

operational component of the calculation baseline – which is the 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 could conflict with NRC requirements because 

the cooling water system used to condense steam used in generating electricity (which is the 

subject of this rulemaking) is completely separate 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 NRC regulations adequately address proposed 

changes to a nuclear facility, rendering an additional 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 protect 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 use to reduce their intake of cooling water, 

particularly at peak spawning times. Such measures could include installation of variable 

speed pumps or drives at peaking facilities or scheduling regular maintenance outages during 

peak spawning periods whenever feasible. Until 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 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 could compromise the seaworthiness of 

drilling rigs, liquefied natural gas terminals, and fishing boats. But EPA should include the 

word “offshore” before “seafood processing facilities” in its exemption at 40 C.F.R. § 

125.91(d) to make it clear that only vessels, and not coastal fish processing plants, are 

exempt.

• EPA must consult with the National Marine Fisheries Service and the Fish and Wildlife 

Service. EPA must obtain the opinions of its sister 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 existing 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 analysis 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 Environmental Institute (SEI) comments. Not only 

does EPA’s approach to cost-benefit analysis exceed 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 which do not reflect current 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 that the benefits of Option 3 clearly exceed 

the costs. 

• The substantial shortcomings in EPA’s cost-benefit analysis demonstrate conclusively why 

state permitting agencies should be forbidden from considering costs 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 regulations in the Phase III rule, or the “new units” 

requirements of this rule. None should be conducted by states under this rule either. 

• However, to the extent that states are authorized to conduct site-specific cost-benefit 

analyses for existing facilities, EPA should set very specific requirements 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 rule and of Section 316(b) – to minimize the 

adverse environmental impacts of cooling water intake structures using 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 entrainment and impingement reductions of 

Track I, and if it falls short within 10 percent, 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 implement the finding of the Second Circuit in 

Riverkeeper I that under Track II, it would be inappropriate 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 Cooling Causes Adverse Environmental 

Impacts of Staggering Proportions...................................................................................1 

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

2. Impingement and Entrainment .............................................................................3 

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

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

 5. Depressed Commercial and Recreational Fishing 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 Generation 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 1972 

Clean Water Act Amendments to Standardize Permitting and Minimize OnceThrough Cooling’s Massive Water Withdrawals and Fish Kills. ....................................22 
x 

1. In 1972 Congress Was Well Aware of the Enormous Damage Caused by 

Once-Through Cooling. .......................................................................................23 

2. The 1972 CWA Amendments Fundamentally Restructured U.S. Water 

Pollution Regulation by Replacing Ineffectual Site-Specific Assessments 

of Water Quality with National 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 Standards for Cooling Water Intake 

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

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

b. The National Standards Section 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 Years, 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 Existing Facilities (Existing Units) ..........................42 

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

3. Impingement Standards for Existing Facilities (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 ....................................................................................48 
xi 

 B. EPA’s Option Selection ...................................................................................................49 

1. In Considering Technological Options, EPA Set a “Universal 

Availability” Requirement for BTA 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: Changes Made at the Direction of OMB. .............................53 

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

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

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

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. ..............................................................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 Statement that Most Facilities Should 

Install Closed-Cycle Systems. .................................................................57 

e. Although OMB Put Cost-Benefit Analysis 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. ............................................................60 
xii 

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 THAN EPA’S PRIOR 316(b) RULES, AND WILL NOT 

PROTECT AQUATIC RESOURCES UNLESS 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 Congress’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 Intent for the CWA’s Technology-Based 

Regulatory Program. ............................................................................................64 

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

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

B. EPA Should and Must Establish a National Categorical Entrainment Standard 

Based on Closed-Cycle Cooling. .....................................................................................68 

1. Option 1’s Entrainment Provisions Represent a Complete Abdication of 

EPA’s Responsibility to Minimize Adverse Environmental Impact. ..................68 
xiii 

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 Technological 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 Complete 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 Changes by OMB) Is Very Poorly 

Designed. .................................................................................................82 

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

a. Establishing National Categorical Standards Based on ClosedCycle Cooling for Virtually All Existing Facilities, as the Agency 

Did a Decade Ago for New Facilities, Would Minimize Adverse 

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

b. The Rulemaking Record Demonstrates that Closed-Cycle Cooling 

is Available to the Existing Facilities 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 Any Significant Adverse Impacts 

on Energy Supplies, the Economy or the Environment. ..........................87 
xiv 

(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 Cooling Would Create Jobs and 

Improve the Economy. .................................................................89 

(4) Requiring Closed-Cycle Cooling Would Not Cause Air 

Pollution or Any Other Significant Adverse Environmental 

Impacts. ........................................................................................89 

(5) Requiring Closed-Cycle Cooling Would Cause Some 

Facilities to Repower their 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 Categorical Standards for Impingement Is 

Necessary and Appropriate, the Proposed Standards Are Impermissibly Weak and 

Problematic in Numerous Respects. ................................................................................96 

 

1. EPA Should Establish a National Categorical 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 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. .....................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 Impingement Mortality Reduction Requirement 

Is Problematic In Numerous Respects. ................................................................99 
xv 

a. Impingement Mortality Monitoring 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 Velocity Limit as the Impingement 

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

D. All Repowered, Replaced, or Rebuilt Facilities Must Be Subject to the Same 

Closed-Cycle-Cooling-Based Requirements as New Units at Existing Facilities. ..........104 

1. Although the Closed-Cycle Cooling Standard 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 Facilities Must Be Subject to the 

Same Closed-Cycle-Cooling-Based Requirements as “New Units at 

Existing Facilities.” ..............................................................................................107 

E. Other Critical Provisions Should Be Revised. .................................................................108 

1. EPA Should Clarify the Meaning of the 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 Maintain 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 Freshwater 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 Available for Cooling at Existing 

Once-Through Facilities. .........................................................................112 

c. EPA’s Stated Concerns About Reclaimed Water Availability Are 

Unsupported and Unwarranted. ...............................................................113 
xvi 

d. The Use of Reclaimed Water for Closed-Cycle Cooling Addresses 

Any Consumption Issues. ........................................................................115 

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

Use of Reclaimed Water for Cooling 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 Offshore 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-Benefit 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 Underestimated the Number of Fish Killed by 

Cooling Water Intake Structures. .............................................................124 

b. EPA Cannot Accurately Monetize 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-Estimated 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 Retrofits at Nuclear Plants. ............................129 

4. If EPA Relies on, or Authorizes Use of, a Cost-Benefit Analysis, that 

Analysis Must Be Significantly Improved. ..........................................................130 
xvii 

 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 Assessment 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 PHASE I RULE ARE WARRANTED IN LIGHT 

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

V. RESPONSES TO EPA’S SPECIFIC REQUESTS FOR COMMENT .......................................139 

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

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

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

LIST OF EXHIBITS ................................................................................................................................164
1 

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 natural 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, return the now-heated water to the 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 and unacceptable adverse environmental impacts,” 

including but not limited to entrainment and impingement; reductions of threatened, endangered 

or other protected species; damage to critical aquatic organisms, including important elements of 

the food chain; diminishment of a population’s compensatory reserve; losses to populations 

including reductions of indigenous species populations, commercial fisheries stocks, and 

recreational fisheries; and stresses to overall communities and ecosystems as evidenced by 

reductions in diversity or other changes 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 period, or entrain some 3 to 4 billion smaller fish and shellfish in a 

year, destabilizing wildlife populations in the surrounding ecosystem.”8

Not only have EPA and the courts previously recognized and documented the staggering 

adverse environmental impacts of once-through cooling systems, but other federal and state 

agencies, and biologists and other professionals in the private sector 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 agency 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 Intake Structures for 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 for New Facilities); 66 Fed. Reg. 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 Intake 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 Cooling Water Intake Structures at Phase III Facilities). 

The rulemaking record for this rule includes “the data and information contained 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 read. That failure is emblematic of EPA’s current 

dereliction of its responsibility to protect the aquatic environment. While EPA’s discussion of 

adverse environmental impacts has faded into the 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 impacts of cooling water intake structures are 

caused by the massive withdrawal of water into the plants through those structures. With an 

actual daily intake volume in excess of 200 billion gallons per day, or 75 trillion gallons per year, 

industrial cooling water systems are, by far, the largest source 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 percent 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 irrigation and public water supplies combined.12 

Manufacturing facilities (primarily in the pulp and paper, chemicals, primary metals, and 

petroleum refining sectors) also use appreciable volumes of water, but far less than power plants. 

EPA estimated that 633 presently operating power plants have a design 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 greater 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; seven percent from the Great Lakes; and approximately 72 percent 

 10 EPA, Environmental and Economic Benefits Analysis 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 Survey Report, Circular 

1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c1344.pdf (last visited July 2011). 

11 J.F. Kenny et al., Estimated Use of Water in the United States in 2005, U.S. Geological Survey Report, Circular 

1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c1344.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 Existing 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 the 2007 EIA database, 38 of the 671 facilities 

have ceased operation since the Survey”). It should also be noted that the reference 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) lake, river, stream or reservoir.16 Although EPA’s presentation of 

the data is very unclear it appears that approximately 75 percent 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 BGD or nearly 150 trillion gallons per 

year of cumulative design intake capacity by the approximately 1,200 industry facilities subject 

to the rule.18 

2. Impingement and Entrainment 

Because cooling water intake structures remove 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 ecosystem, 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 through a cooling water intake structure 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: including physical impacts in the pumps and condenser 

tubing; pressure changes caused by diversion of the cooling water into the plant or by the 

hydraulic effects of the condensers; sheer stress; thermal shock in the condenser and discharge 

tunnel; and, chemical toxemia induced by antifouling agents such as chlorine. 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 the entrance of the intake structure. Impingement 

is caused by the force of water passing through the intake structure and can result in starvation 

and exhaustion (when organisms are trapped against 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 from 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 photosynthetic 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, shellfish, crustaceans, reptiles (such as sea turtles) 

and marine mammals (such as seals and sea lions) at all life stages, including eggs, larvae, 

juvenile, and adult; and many other forms of aquatic life, including threatened, endangered and 

other protected species.23 

The death toll of wildlife from power plant 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 plant 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 death of at least 2.2 

billion age one-equivalent25 fish, crabs, and shrimp, and a minimum of 528 billion eggs 

and larvae that serve as the basis of the aquatic food chain.26 The actual mortality figures 

are likely much higher. As Drs. Peter 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 estimates. For example, many of the data sets 

used in the calculations are old and many of the studies do not report all species caught, 

which causes some species to be underrepresented in the national calculations. Thus, 

EPA’s estimate of the fish killed by power plants is likely an underestimate – 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, that 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 Water 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 termed 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 therefore should not be used, as a measure of the impacts caused by cooling 

water intake strucutres or the benefits of installing protective 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 Conservation, 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 stages may well be closer to that one trillion 

figure. In many cases, the toll on fisheries by power plants rivals or exceeds that of the 

fishing industry.

As just several examples of the devasting aquatic mortality at hundreds of power plants 

across the country: 

• The Salem Nuclear Generating Station in New Jersey withdraws over 3 billion 

gallons per day from Delaware Bay and 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 shore 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 Fear estuarine system in North Carolina, 

has entrained as much as 3-4 billion individual 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 River power plant seriously reduces forage 

species and recreational and commercial landings (e.g., 23 tons per year);33

• On Lake Michigan, the D.C. Cook nuclear plant killed one million 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 just south of Peekskill. As reported by 

 30 Versar, Technical Review and Evaluation of Thermal Effects 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 Environmental Conservation, 1.2 to 1.3 billion 

fish eggs and larvae are entrained at Indian Point each year.35

• Cumulatively, the five power plants on the Hudson River (Indian Point, Bowline, 

Roseton, Lovett36 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 completed in predicted year-class reductions of up to 

20 percent for striped bass, 25 percent for 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 seriously 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 apparently 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 Station on the Southern California coast, in a 

normal (non-El Niño) year, 121 tons of midwater fish are entrained, causing a 34-70 

percent decline in Pacific Ocean fish 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 Fisheries 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 Bowline 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 permit 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 declined in abundance since the 1980s (shad, 

tomcod, bay anchovy, alewife, blueback herring, rainbow smelt, hogchoker, white catfish, weakfish and white 

perch) (Exh. 9) also available at http://www.riverkeeper.org/document.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), citing 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 Niagara River, which 

connects Lake Ontario to Lake Erie near the 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 suck in a cross-section of all 

species present in the waterbody, any plant located near the habitat or range of a rare or special 

status species is likely to be impinging and/or entraining individuals 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; they may suffer indirect harm if the withdrawals 

alter food webs; and intake structures may alter habitat critical to their long-term survival.47

EPA identifies 88 threatened or endangered species 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 Document, 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 threatened and endangered species are, by definition, 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, including 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 intake 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 intake 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 concerns that some populations may be altered beyond 

recovery.”55 Moreover, even where a fish population has not yet experienced a documented 

decline, the loss of large numbers of individuals deplete the species’ 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.), Decline 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 Generating 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—loggerhead, green, Kemp's ridley, leatherback and hawksbill). 

54 Amergen Energy Company, LLC, Assessment of the Impacts of the Oyster 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, cause adverse environmental impacts due to 

significant impingement of juveniles and entrainment of eggs and larvae.”58 

 5. Depressed Commercial and Recreational Fishing Yields 

 

Because impingement and entrainment cause fish 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 “has immediate and direct effects on the 

population size and age distribution of affected species, and may cascade through food webs.”60 

In particular, EPA has recognized that “the loss of large numbers 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 community and ecosystem impacts, including “altered community 

structure and patchy distribution of species,” “reduced taxa and genetic diversity,” and “nutrient 

cycling effects.”62 

Significantly, in a 2004 Federal Register publication, 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 significantly, diminishes the forage base, which disrupts the food 

chain, transferring energy from higher to lower trophic63 levels and compromising the health of 

the entire aquatic community.64 In particular, as NYSDEC 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 longer available as food to striped bass and other top 

predators, and is instead consumed only by lower 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 integrity and proper functioning of the system. 

Likewise, the entrained bay anchovy would no longer be available 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 ecologically important. These include benthic 

organisms (i.e., “bottom dwellers” such as mussels, anemones, crabs and shrimp) and planktonic 

organisms (i.e., free-floating microscopic plants and animals), which “are an important source of 

food for other aquatic organisms and an essential component of the food chain in aquatic 

ecosystems.”66

 7. Reduced Ecological Resilience 

 As EPA has recognized, the effect of long-term or chronic impingement and entrainment 

mortality may lead to a decrease in ecosystem resistance and resilience – that is, the ability of 

ecosystems to resist and recover from disturbances such as invasive 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 Roseton 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 in 
11 

 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 structure and function of 

ecosystems.68 The operational differences between once-through cooling systems and closedcycle cooling systems will significantly reduce the thermal load of the discharge to surface 

water. Unlike once-through cooling systems, where the entire thermal load is delivered to the 

surface water body, in a closed-cycle cooling system most of the heat 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 effluent from a closed-cycle system compared to 

a once-through system. 

In the EEBA, EPA notes that: 

Numerous studies have shown that thermal 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 facilities returning heated cooling water into 

nearby waterbodies.70

The EEBA also explains that facility-specific factors control the degree to which thermal 

pollution will affect an aquatic ecosystem. These factors include the volume of the waterbody 

source, other heat loads, the rate of water exchange, the presence of nearby areas whose climate 

remains habitable for rare or endangered species 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 ecosystems that are already subject to other 

environmental stressors such as high biochemical oxygen demand (BOD) levels, sediment 

contamination, or pathogens.72 Additionally, there are indirect 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 Resilience – 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 Application 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 discharge, which include increased 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 professors at the University 

of Maryland Center for Environmental Science, “temperature has long been recognized as a 

major environmental factor at the molecular, cellular, 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 researchers’ 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 percent 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 bluefish, 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 winter by species that should have 

migrated out of the area due to cold temperatures.79

• Large-scale mortality (due to thermal shock from a rapid drop in temperature) resulting 

from the failure to migrate followed 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 Estuary 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/owrccatalog.nsf/7322259e90d060c885256f0a0055db68/3c2b3d081f4714fd85256b06

007233ee!OpenDocument.

80 Oyster Creek Nuclear 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 Natural Resources Damages (December 12, 2002) 

(Exh. 26), also available at http://www.state.nj.us/dep/newsrel/releases/02_0131.htm. 
13 

• Metabolic rate of organisms increases with increased temperatures resulting in decreased 

growth and survival,81 especially during summer months when ambient water 

temperatures are at their peak. 

• Tropical/subtropical invasive species are able to thrive in the surrounding warm water 

plume.82

• Calefaction or thermal loading directly interferes with physiological processes of biota, 

such as enzyme activity, feeding, reproduction, 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 corrosion of pipes, valves and pumps (e.g., 

chromium, copper, iron, nickel, and zinc), additives (anti-fouling, anticorrosion, 

and anti-scaling agents) and their byproducts, and materials from boiler 

blowdown and cleaning cycles.84

 These anti-fouling and cleaning chemicals 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 procedure is continuous low-level 

chlorination at chronic toxicity levels with an occasional high (“shock”) dose,” while the “use of 

oxidants (chlorine, bromide) can give rise to residuals and/or disinfection byproducts (DBPs) 

such as trihalomethanes, haloacetic 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 anthropogenic stressors identified 

above.”87

 81 T. L. Beitinger, W. A. Bennett, 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 structures 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 combined with fishing and other pressures. EPA has delineated these 

cumulative impacts in this rulemaking (in the EEBA) and previously in the preamble to EPA’s 

prior Section 316(b) rules:88

In addition to impingement and entrainment losses associated with the operation 

of the cooling water intake structure, EPA is concerned about the cumulative 

overall degradation of the aquatic environment as a consequence of (1) multiple 

intake structures operating in the same watershed or in the same or nearby reaches 

and (2) intakes located within or adjacent to an impaired waterbody. Historically, 

impacts related to cooling water intake structures have been evaluated on a 

facility-by-facility basis.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 presence 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 waters that are identified as impaired and 

listed by a State or Tribe as needing development of a total maximum daily load 

(TMDL) to restore the waterbody to its designated use. EPA notes that the top 

four leading causes of waterbody impairment (siltation, nutrients, bacteria, and 

metals) affect the aquatic life uses of a waterbody. The Agency believes that 

cooling water intakes potentially contribute additional stress to waters already 

showing aquatic life impairment from other sources such as industrial discharges 

and urban stormwater.91

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

mentions of the cumulative financial burdens on power companies from EPA’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) facilities have been built on shoreline locations 

where power-generation buildings, roadways, CWISs [cooling water intake structures], canals, 

impoundments, and other water storage or conveyance structures have often been constructed at 

the cost of natural habitat, including terrestrial, aquatic, and wetlands.”92 Moreover, the loss of 

fish habitat due to construction of a power plant and its intake structure combined with the direct 

losses of fish from operation of the intake exert even greater pressures on aquatic species: 

Habitat loss in adjacent shoreline areas exacerbates the effect of CWIS losses, 

since many fish species affected by I&E [impingement 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 intake 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 discharge 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 the power plant’s cooling system. EPA noted 

that “of the 521 facilities that are located on freshwater streams or rivers, 31 percent (164) of 

these facilities have average intake greater than 5 percent of the mean annual flow of the source 

waters.”95 Even if the volume of water in the river stays relatively constant, “the flow 

characteristics of the waterbody, including turbulence 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 deposition (Hoyal et al. 1995), sediment 

transport (Bennett and Best 1995), and turbidity (Sumer et al. 1996), each of 

which play a role in the physical structuring of ecosystems. Biologically, flow 

velocity is a dominant controlling 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), growth rates (Eckman and 

Duggins 1993), and population dynamics (Sanford et al. 1994). In addition to 

flow rates, turbulence plays an important role in the ecology of small organisms, 

including fish eggs and larvae, phytoplankton, and zooplankton. In many cases, 

the turbulence of a waterbody directly affects the behavior of aquatic organisms, 

including fish, with respect to swimming speed (Lupandin 2005), location 

preference with a waterbody (Liao 2007), predator-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 result in changes to the food web or the 

location of used habitat, and thereby substantially 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 power 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 withdrawals (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 cooling also represents an enormous 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 located near thirsty cities and other users. 

EPA’s Proposed Rule makes mention of the supposed reliability threats 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 and incorporated into any BTA determination. 

 a. Impacts on Upstream Beneficial Uses of Water 

The massive amounts of water withdrawn by power plants’ once-through cooling systems 

affect water resource planning and land use policy 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 cooling 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 cooling 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 consequential effects (which are felt not only at the intake and downstream, 

but also upstream). That is because Alabama Power also operates a hydroelectric dam (known as 

the Lewis Smith development as part of the Warrior River Hydroelectric Project) above the 

Gorgas Plant and, since 1974, the company 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. Geological Survey Report, Circular 

1344 (2009), at 38, (Exh. 2), also available at http://pubs.usgs.gov/circ/1344/pdf/c1344.pdf (last visited July 2011). 100 See, e.g., 76 Fed. Reg. at 22,229. 
17 

affect Alabama Power’s decisions both as to when to release water from the dam and how much 

water to release. 

Because of the purported “need” to ensure massive flows to the downstream power plant, 

Alabama Power has opposed an alternative operational plan, proposed by residents, which would 

provide higher and more stable reservoir elevations 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 required to retrofit to closed-cycle cooling, the 

upstream dam could be operated in a more environmentally and socially appropriate manner. 

This sort of competition for water will only worsen as droughts intensify and 

temperatures increase due to climate change. Often, 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 order 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. Utilities 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 pressure on reservoirs and rivers. 

A Southern Co. coal-fired plant in Florida 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 river 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-plain development. In a draft policy proposal, the White House 

Council on Environmental Quality (CEQ) recommended 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 natural resources functions” 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 Newkirk, Stacy Shelton, “Georgia’s Water 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), sought to perpetuate the status quo and urged CEQ 

to factor the “availability of cooling water” into its water resource decisions, arguing that 

“cooling water intake structures are necessarily built in flood plains” and that such development 

should not be considered “inappropriate or ... discouraged.”104 Of course, EEI has it backwards: 

EPA should discourage the continued use of fragile, precious waterfront land by power plants, 

rather than accept or encourage it. The demonstrated ability of facilities in the Southwest to 

locate away from waterbodies and out of flood plains 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 reliable power generation 

by water availability and temperature issues are real and well known.105 According to DOE, 

“[w]ater shortages, potentially the greatest challenge to face all sectors of the United States in the 

21st century, will be an especially difficult issue for 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 sources 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 electricity 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) [hereinafter “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 sufficient amount of water to meet its thermal 

discharge permit.”) (Exh. 34).

108 Nicole T. Carter, Congressional 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 predictions110 and climate change 

impacts to water availability.111 Nonetheless, the study highlights the critical relationship 

between water and energy and the possible threats to energy generation under the assumed 

withdrawal scenarios. 

More recently, the Union of Concerned Scientists compiled a sampling of reliability 

problems that have already occurred at once-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 supplies 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 nuclear plant in Athens, AL, significantly 

reduced output for five weeks because of high 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 use115 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 shut 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 nation’s 104 nuclear reactors found that 24 

are in areas experiencing the most severe 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 gripping the region, the water levels on those 

lakes and rivers are getting close to the 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 reduce 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 supply or increased water 

temperature, power plants using once-though cooling are also vulnerable due to the sheer volume 

of aquatic life being withdrawn from the source water: 

• In September 1984, a flotilla of jellyfish 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 lack 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 availability has not been comprehensively assessed in 25 

years, thus water availability on a national level is ultimately unknown. However, as the report goes on to say, 

current trends indicate that demands on the nation’s supplies are growing while the nation’s capacity to store 

surface-water is increasingly more limited and ground-water is being depleted.” 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_power/nuclear_power_technology/got-water-nuclear-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 types of risks and of the benefits closedcycle cooling can provide. Indeed, EPA visited a number of sites that already have retrofitted to 

closed-cycle cooling for a variety of reasons:123

o McDonough (GA), Yates (GA), Canadys (SC) and Wateree (SC) 

converted all generating units to closed-cycle cooling.124 

o Nearman Creek (KS) converted its generating units to reduce the need for 

cooling water at times of the year (summer) when the source water level is 

low.125 [During EPA’s site visit, facility representatives noted that its 

closed-cycle recirculating cooling system is easy to operate and actually 

leads to slightly better performance by the generating 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 water 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 reduction is clearly an issue in the forefront of permitting and 

operational decisions at many facilities. Even in cases where 316(b) was not a consideration, the 

benefits to aquatic communities 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 supplies in the coming decades, by increasing the risk that water 

supplies will not be able to keep pace with withdrawals 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 Natural Resources Defense Council (NRDC) found 

that in many parts of the nation, water withdrawals already outpace renewable water supply. 

The Tetra Tech report also found that “[t]he impacts of climate change will greatly increase the 

number of areas where renewable water supply will be lower than withdrawal, therefore 

increasing the number of areas vulnerable to future water shortages.”129

The Tetra Tech study projected that water 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 factors such as population and economic growth, the Tetra Tech study 

further concluded that more than 1,100 U.S. counties 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 potential to address over half of the water 

withdrawals in the entire nation.130 Unfortunately, as is highlighted herein, the proposed rule 

does little if anything to curtail these significant water withdrawals. 

 14. Industrial Use of Valuable, Scenic Waterfront Land 

It is no coincidence that power plants are located along the country’s mightiest rivers and 

on highly valued and scenic locations adjoining our most treasured oceans, lakes and estuaries: 

plants using once-through cooling need cooling water in volumes that can only be found at the 

edge of a major waterbody. Closed-cycle cooling, however, lowers intake volumes to levels 

which can be met by alternative water sources as such municipal water supplies, ground water, 

or treated sewage effluent discharges. By using such alternative 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 sensitive, scenic and valuable waterfront property. 

Such facilities can locate in brownfields or industrial parks, avoiding incompatibility of land 

uses. This significant increase in siting flexibility, particularly for replaced, rebuilt or repowered 

facilities, is yet another advantage of moving 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 Permitting and Minimize Once-Through 

Cooling’s Massive Water Withdrawals and Fish Kills. 

 When Congress enacted Section 316(b) as part of the sweeping 1972 amendments to the 

Clean Water Act, it was well aware of the enormity of once-through cooling 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 cooling – 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 attention 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 amount of cooling water greatly 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 extensive 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 issued 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 impinged 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 menhaden clogged the intake screens in the late 

summer of 1971.136 

 Public concern over these and other incidents 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 the 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 Coastal Zone: Environmental Issues, American Littoral 

Society Special Publication at V-8, tbl. V-B (1973) (Exh. 49); see 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 Coastal Zone: Environmental Issues, American Littoral 

Society Special Publication (1973), p. V-8, tbl. V-B (Exh. 49); see also New York Times Abstracts, August 16, 1972, 

p. 41, col. 1 (“massive fish kill in Apr at Millstone Point nuclear power complex”) (Exh. 51). 

137 Although Section 316(b) has been occasionally described as “something of an afterthought,” (Riverkeeper I, 358 

F.3d at 187 n.12) because of the minimal discussion of that provision in the published legislative history of the 
24 

Water Act, Senator James Buckley of New York cited with approval two newspaper articles 

reporting a decision of the Atomic Energy Commission (AEC) to require Consolidated Edison to 

install closed-cycle cooling 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 Edsion to stop removing such 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 could require closed-cycle cooling at power plants. In response, 

Senator Edmund Muskie of Maine, the chief architect of the Act, assured Senator Buckley that 

EPA would have that authority.140

2. The 1972 CWA Amendments Fundamentally Restructured U.S. Water 

Pollution Regulation by Replacing Ineffectual 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 the preventable causes of water pollution.”143 Indeed, 

Congress passed the Federal Water Pollution Control Act Amendments of 1972 (now known as 

the Clean Water Act) because it recognized that “‘the Federal water pollution 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 Committee, Subcommittee on Environmental Pollution, Federal 

Water Pollution Legislation Files.” Within each box there 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 and 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 13th and 14th, 1972, in a Folder labeled “Conference Committee Conference Sessions,” in Carton No. 2; 

(4) a File labeled “General,” containing internal committee 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 of 
25 

 The 1972 “Amendments were viewed by Congress 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 precision necessary to have water quality standards serve as the 

primary touchstone for determining the appropriate level of control.146 

 Congress deliberately established the NPDES program to relieve permitting agencies of 

the need to conduct costly, lengthy, and indeterminate ecological studies to issue permits. 

Congress’s focus on uniform technology standards in the 1972 amendments was an explicit 

repudiation of unsuccessful predecessor statutes that relied on “water quality standards” as the 

primary method of pollution control. Prior to 1972, sources were regulated “based on their effect 

on the surrounding water” and discharges were limited only if they caused water quality to drop 

below an acceptable level.147 But that approach created a “virtually unbridgeable causal gap” 

because “proving that a particular polluter had 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 receiving 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 focus on classes or categories of sources 

in formulating effluent limitations.... 

“The Conferees intend that the factors [for 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 limitation 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 and enforceable precise effluent limitations 

on the basis of a given stream quality. Water quality standards, in addition to their 

deficiencies in relying on the assimilative capacity of receiving waters, often 

cannot be translated into effluent limitations – defendable in court tests, because 

of the imprecision of models for water quality 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. Hitherto, 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-eminent, unless pollution treatment was 

impractical or unachievable. ... This new view 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 ... measured 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 water 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 standardize 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 effluent regulation possible. Congress 

considered uniformity vital to free the states from the temptation of relaxing local 

limitations in order to woo or keep industrial 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 restructured 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 depend on site-specific showings of impact of 

particular activities on water quality. These technology-based standards are designed to achieve 

the maximum reduction in activities that degraded water quality, by focusing on the extent to 

which certain technology was, depending on the type 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 thermal 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 that 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 unregulated 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 standards to become more stringent over 

time. For permits issued before EPA had promulgated national standards, NPDES permit writers 

used their “best professional judgment” (BPJ) on a case-by-case basis.160 Next, by 1977, 

discharges from existing facilities were to be brought 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 conditions 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 upon 
28 

nationwide would be required to step up the level of pollution control to standards based on the 

“best available technology economically achievable” (BAT).162 

Finally, for new facilities, Congress created the strictest standard in the Act, “new source 

performance standards,” which require 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 more 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 control 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 technology-based limitations were designed to 

force the iterative development of more protective technologies, and to ratchet down discharges 

and other impairments to water quality until they could be eliminated.168 Congress and 

numerous federal courts have emphasized this “technology-forcing” character of the Act’s 

categorical standards within the context of the 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 complete elimination of water pollution.169 BAT must be “at a 

minimum, established with reference to the best performer in any industrial category.”170 “The 

BAT standard reflects the intention of Congress to use the latest scientific research and 

technology in setting effluent limits, pushing industries toward the goal of zero discharge as 

quickly as possible. In setting BAT, EPA uses not the average plant, but 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 respect was clear: ... to maximize 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 intend by that phrase [i.e., BAT] to limit the 

technology to that which is widely in use. ... ‘It will be sufficient, for the purpose of setting the 

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

demonstrates that the level can be achieved or that there is sufficient information and data from a 

relevant pilot plant.’”172 BAT must “utilize the latest technology to reach ‘the greatest attainable 

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

of Columbia Circuit: 

[T]he [Clean Water Act’s] regulatory scheme is structured around a series of 

increasingly stringent technology-based standards ... [T]he most salient 

characteristic of this statutory scheme, articulated time and again by its architects 

and embedded in the statutory language, is that it is technology-forcing.... The 

essential purpose of this series of progressively 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 potential for economic 

consequences does not obviate the mandate 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 doubt 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 result in the closure of certain facilities.176 Referring 

to an 11 percent industry-wide risk of closure, the Court stated that “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 facilities 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 convergence of two important Congressional 

objectives: to minimize the massive water withdrawals 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 site-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 structure compels the conclusion that EPA 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 standards 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 performance” EPA issues as national categorical regulations 

for new facilities,181 the “pretreatment standards” EPA issues 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 that “§ 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 case-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 individual, plant-by-plant basis thus is foreclosed not simply by 

Congress’s use of the term “standard” 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 history provides that “[s]ection 316 must be read with other 

sections in the bill including section 301 effluent limitations . . . and section 306, new 

sources.”188 Looking to the cross-referenced sections 301 and 306, and consistent with the 

Supreme Court’s conclusion in du Pont that the reference to “standards” 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 standards 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 standards 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) standards, as compared to water quality standards.190 In 

that opinion, the Fourth Circuit also took note of “the aim of Congress to achieve nationally 

uniform standards.”191

 Likewise, in rejecting a challenge to EPA’s authority to regulate cooling water structures 

in NPDES permits, the Seventh Circuit held that the requirements of Section 316(b) “are to be 

implemented through standards established pursuant to §§ 301 and 306.”192 In entering the 

consent decree requiring EPA’s three-phase BTA rulemaking, the Southern 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 Company 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 (7thCir. 1977). 

193 Cronin, 898 F.Supp. at 1059. 
32 

makes clear that administrative regulations 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 intake 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 promulgated requirements for cooling water 

intake structures at the same time as it promulgated discharge requirements for the point sources 

using the intakes, in accordance with the specific deadlines set forth in sections 301 and 306,195

— i.e., by 1989, at the latest — but EPA was also required to promulgate 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 limitation under CWA sections 301 

and 306 also reveals an essential feature about them: like the Act’s other technology-based 

standards, Section 316(b) standards 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. That is, each standard applies to a particular 

industrial category and, except in those limited circumstances where an individualized waiver or 

variance may be available, applies uniformly to all facilities in the United States in that 

category.197 Since the requirements for cooling water intakes are required to be issued as part of 

these categorical standards, and are to be applicable 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” (BTA) requirement to 

minimize adverse environmental impacts with the effluent limitations under sections 301 and 

306 indicates Congress’s intent for national technology-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 instead 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 requirements be issued as categorical standards.199 

C. Regulatory Background: For Forty Years, 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. 

Since 1972, in the absence of national regulations, cooling water intake structures have 

been relegated on an ad hoc, case-by-case, site-specific basis by individual permit writers, 

typically State agencies, exercising their “best professional 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 duration201 and that BAT 

regulations be reviewed and, if appropriate, 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 have resulted in uneven 

and conflicting rulings, the widespread use of inferior technology, little change 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 mandate of Section 316(b). 

Industry, which has a critical strategic 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 upgrades. In particular, industry will inundate 

regulators with an overabundance of information, which is highly time-consuming to evaluate, if 

it can be evaluated at all. As just one example of which EPA is aware, in New Jersey, one 

plant’s permit renewal application comprised 36 volumes, supported by 137 volumes of 

technical and reference materials, which took the state agency seven years to review and finally 

act upon.203 

 198 33 U.S.C. § 1342. 

199 Of course, there will be some circumstances in which uniform 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-specific 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 another 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 unsupported arguments, such as the 

following: 

1. Industry incorrectly contends that adverse 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 permitting 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 impinging 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 used by fisheries scientists to evaluate the 

inpacts of proposed harvesting regimes should 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 baseless 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 particular 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 Regulatory 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 cylindrical wedgewire screens, should be considered at the population level and 

applied age-one equivalent conversions to represent the adverse 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 affected even though, “at face value” the fish kill data from 
35 

7. Industry incorrectly argues that only certain fish and shellfish species matter.210

8. Industry often has the temerity to argue, incorrectly, that massive fish kills and thermal 

discharges have a beneficial impact, for example because some of the dead fish are 

nuisance species or some species prefer warmer water.211

9. Industry makes the irrelevant argument that some of the fish they entrained or impinged 

were dead before they were trapped by the intake structure.212

10. Industry incorrectly argues that the percentage of fish being impinged and entrained is 

small when compared to overall stock size or what indsustry sometimes refers to as the 

“exploitable population.”213

11. Industry incorrectly argues or suggests that other causes, for example, fishing or natural 

conditions, have a more significant impact on fish than intake structures.214

12. Industry incorrectly argues that documented fish or shellfish population declines in the 

vicnity of the plant are unrelated to the operation of their intake structures. 215

13. Industry incorrectly argues that large numbers 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 massive numbers of emerald shiners, sheephead and gizzard shad is less 

important because there are large populations of these species in Lake 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. Stuart Electric Generating Station) (Exh. 63). Recently, EPA proposed to 

object to Ohio EPA’s renewal of Stuart’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. 199701876, Applicant’s Post Hearing Submittal (May 8, 2009) 

(Exh. 64). 

214 Id. FirstEnergy has also tried to distract 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. 199701876, 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 Danskammer adjusted for claimed entrainment survival). 
36 

mitigation measures.217 

15. Industry often incorrectly argues that the operational baseline for comparing the 

performance of technologies should be calculated 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 difference between fictional baseline and its 

normal operation, even in instances where the gap between the fictional baseline and 

actual operation is 90 percent or more.218

16. Industry incorrectly argues that the burden of proof 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 and to withdraw cooling water from waters 

of the U.S.219

17. Industry often incorrectly argues that their 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 disputed 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 for 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 State Department of Environmental 

Conservation at 12 (June 29, 2006) (accepting the applicant’s argument 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 plume 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, Administrative 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 water quality standards – without analyzing impacts on the 

record of permitting proceeding); Letter from Elise N. Zoli, 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 compliance with BTA standards is too expensive 

for the company.223

21. Industry often incorrectly contends that compliance 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 significant 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 shut down plants that are not complying with 

such requirements.228 

26. Industry incorrectly argues that technology 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 compliance 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 compliance is too expensive include: FirstEnergy (Bayshore) and 

Dayton Power & Light (Stuart). 

225 For example, in estimating the costs of retrofittng closed-cycle 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,” “indeterminates,” and “contingencies.” Alden 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 required to retrofit to closed-cycle cooling because they 

provide an “essential service” include 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, Entergy Nuclear has phrased this argument as a need to condition a 316(b) decision 

on other permitting issues such as adverse air impacts, unacceptable visual impacts, and SEQRA analysis 
38 

28. Industry incorrectly argues that cooling system retrofits raise nuclear safety concerns.231

29. Industry incorrectly argues there are insurmountable energy concerns from outages, 

energy penalties, or potential plant retirements.232

30. Industry incorrectly argues there are insurmountable concerns relating to fogging, steam 

plumes or mineral drift from closed-cycle cooling.233

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

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

33. Industry often incorrectly argues that there is insufficient 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 specification (based on an overly conservative “approach 

temperature”), thereby consuming more space 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 FirstEnergy (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 (NPDES) permit (Oct. 2010) (Exh. 72) (FirstEnergy claims 

that it cannot shut down its own facility 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 significant 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 report of Powers Engineering, attached 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 Closed-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/convclosloop.pdf. The over-estimate of the time necessary 

to install closed-cycle cooling is directly related to the tendency of many facilities to argue that technology retrofits 
39 

36. Industry often incorrectly contends that closed-cycle cooling does not pass a cost-benefit 

test.239

37. Industry often incorrectly argues that the benefits of closed-cycle cooling must exceed the 

costs before it can be required.240

38. Industry often incorrectly argues that only 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 argues that retrofits should not be required at plants that 

purportedly have too little useful life remaining.243

41. Industry often incorrectly argues 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 Section 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 environmental benefit at all” to their use) (Exh. 70). 240 Cf. Brief of Petitioner Entergy Corp. 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-specific 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-specific cost-benefit 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 Certification (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 traffic impacts and alleged impacts to “social fabric and 

community character”). 

243 In the case of Indian Point, Entergy 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 time 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 made decades ago and cannot be disturbed now is supported 
40 

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 alternative 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-funded, under-staffed regulators at state agencies (or at EPA 

regional offices) – not to mention interested members of the public – to engage with and respond 

to the panoply of largely spurious issues raised at every opportunity and supported with opaque 

technical submittals, it is no wonder that power plants 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 directly by EPA. 

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

 by state regulators. Both Illinois and Michigan have adopted this unlawful interpretation of the Clean Water Act in 

multiple proceedings. See, e.g., In the Matter of the Natural Resources Defense Council (NRDC), the Sierra Club, 

and the Great Lakes Environmental Law Center (GLELC) on the permit issued 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 alternative to closed cycle cooling (despite EPA’s finding, in this proceeding, 

that wedgewire screens are not as effective as closed cycle 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 preferred 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. Stuart Electric Generating Station) (Exh. 63).

249 In Clean Water Act proceedings related to setting water quality standards, Midwest Generation has argued that 

Chicago’s waters are less worthy of protection because they are used in commerce 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 three Hudson River power plants to retrofit 

with closed-cycle cooling.253 In the nearly 30 years since, the cooling water withdrawals at these 

plants have engendered endless lawsuits, negotiations, settlements and two environmental impact 

statements. Yet the plants still operate on long-expired permits, and the plants’ once through 

cooling systems continue to kill fish at levels deemed “wholly unacceptable” by the state 

environmental agency.254 The NPDES permit renewal for one of these plants, Indian Point, has 

been in adjuducation since 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 determined that due to the potential for long-term 

impact, closed-cycle cooling was necessary for Indian 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 today, their cooling water intake structures 

in much the same condition now as then. Incredibly 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 Control 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 Administrator, New York State 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 per 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, “water obtained from a public water 

system, reclaimed water from wastewater treatment facilities or desalination plants, treated 

effluent from a manufacturing facility, 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 thresholds are subject to permitting on a best professional judgment 

(BPJ) basis.259 The three main components of the rule 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 with 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 Existing Facilities (Existing Units) 

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

of entrainment reduction that is reflective of the Best Technology 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 choose 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 only hard and fast “requirements” imposed on 

existing facilities are information provision requirements. These vary according 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 distinction between what it terms “existing facilities” and “new units 

at existing facilities.” But since every site addressed by this 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 Director 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 that it has identified through a ‘source water 

baseline biological characterization study.’267 But note that as the Proposed Rule is 

written, the Director may exclude any species from the baseline study or from 

entrainment monitoring.268 Thus, the study may not in fact report on all of the fish 

entrained. The study must be peer reviewed, with reviewers selected in consultation with 

the Director (who may also appoint additional reviewers). If any significant comments 

from the peer review process are not accepted, the facility owner must explain why. 

“Peer reviewers must have appropriate qualifications in biology, engineering, hydrology, 

or other fields and their names and credentials must be included in the peer review 

report.”269

• Comprehensive Technical Feasibility 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 reviewed 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 evaluated” 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 the 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 expertise 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 other 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 facilities with an AIF less than 

125 MGD need only provide a subset of the information that larger facilities must provide, i.e., 

baseline information to the Director about the 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 Director must consider at least nine factors: 

(1) Numbers and types of organisms entrained; 

(2) Entrainment impacts on the waterbody; 

(3) Quantified and qualitative social benefits and costs, including ecological benefits 

and benefits to any threatened or endangered species; 

(4) Thermal discharge impacts; 

(5) Impacts on the reliability of energy delivery within the immediate area; 

(6) Impact of changes in particulate emissions or other pollutants associated with 

entrainment technologies; 

(7) Land availability, inasmuch as it relates to the feasibility of entrainment 

technology; 

(8) Remaining useful plant life; and 

(9) Impacts on water consumption. 

Based on these nine factors, the Director may 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 decision. In that explanation, the Director must 

explain why any measures that perform better 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 Fed. 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 requirements 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 entrainment 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 the new unit’s intake of cooling water to equal 

that of a closed-cycle cooling system under the same circumstances.283 Alternatively, under the 

second compliance track, a higher intake flow is permissible 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 compensate, 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 reduction 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 compliance is “wholly out of proportion” 

to the costs considered by EPA during the rulemaking process.286 

3. Impingement Standards for Existing Facilities (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 life 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 traveling screens with a fish handling and return 

system.”289 EPA concluded that this 12 percent/31 percent 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 system’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 (and thus impingement mortality) 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 record shows modified traveling screens are 

available for all facilities, whereas reduced intake velocity may not be available at all 

locations.”294

Under both alternatives, operators must also meet ancillary protective requirements. 

First, any facility that does employ travelling screens or equivalent active screens must 

incorporate certain protective measures that raise the odds that impinged fish can be safely 

returned to the source water.295 Second, all facilities must ensure 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 the 12/31 percent standard), 76 Fed. 

Reg. at 22,282 (col. 3); 40 C.F.R. § 125.94(b)(2)(v)(B) (for those 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 the 12/31 percent standard), 76 Fed. 

Reg. at 22,283 (col. 1); 40 C.F.R. § 125.94(b)(2)(vi) (for those 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 12/31 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 submit an Impingement Mortality Reduction Plan 

to the Director that identifies the approach 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 any applicable limitations “for all life stages of fish.”301 Although 

the definition of “all life stages” allows the Director to exclude moribund and invasive species,302

it still embraces virtually all fish and shellfish that are actually entrained or impinged. 

However, the rule also repeatedly refers to studying and monitoring impingement and 

entrainment of “species of concern” without defining the term.303 One possibility is that EPA 

intends the “species of concern” category to function as it does under the Phase I rule: offering 

stronger protection to endangered, threatened, or otherwise uniquely valuable species that the 

rule’s uniform standards would provide.304 This elevated degree of protection is entirely 

consistent with the Clean Water 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) addresses the Director’s responsibilities with respect to species of 

concern. Under sub-paragraph 6, “[t]he Director may determine invasive species, naturally 

moribund species, and other specific species may be excluded 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 biological 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 (col. 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 track 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) (requiring 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), entitled “Nuclear facilities” provides that “[i]f the owner or 

operator of a nuclear facility demonstrates to the Director, upon the Director’s consultation with 

the Nuclear Regulatory Commission, that compliance with this subpart would result in a conflict 

with a safety requirement established by the Commission, 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 natural 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 technologies beyond screens that avoid unacceptably 

altering the envelope or seaworthiness 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 requirements because EPA lacks the authority to allow 

compliance with Section 316(b) through restoration measures.312 The proposed rule also 

proposes certain relatively 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 Water 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 universally. In so doing, 

EPA rejected the possibility of subcategorizing facilities according to the feasibility of control 

technologies, and rejected the possibility of setting a standard based on a more effective model 

technology but allowing variances where the model technology is infeasible. 

1. In Considering Technological Options, EPA Set a “Universal Availability” 

Requirement for BTA Candidate Technologies, then Rejected Closed-Cycle 

Systems and Velocity Limits Because EPA Found that They Are Not 

Univerally Capable of Being Implemented. 

EPA considered a number of flow-reducing technologies, including closed-cycle 

systems.316 EPA also evaluated a number of exclusion technologies, including different screens 

and nets, fish collection systems that safely return excluded fish to a waterbody, and slowing the 

intake velocity sufficiently for fish to escape the zone of danger.317 From this review, EPA 

selected three best performing technologies that merited further study: traveling screens, barrier 

nets, and wet closed-cycle cooling. EPA also determined that velocity reduction 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 implemented by every facility, even if better performing 

technologies are available and feasible 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 capable 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 closed-cycle cooling did not meet that standard 

and therefore could not be BTA. 

 

Once it eliminated closed-cycle cooling and several other technologies from 

consideration, “EPA could identify no single technology that represented BTA [for entrainment] 

for all facilities” and opted for a case-by-case approach to regulating entrainment at existing 

units.324 The agency concluded that closed-cycle technology could not be implemented 

everywhere for four reasons: local energy reliability; increased air pollution and the difficulty of 

obtaining air emissions permits for existing facilities in non-attainment areas; land availability; 

and remaining useful plant life.325 

Uncertainty about the extent and likelihood of local reliability 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 compliance timelines for utilities to coordinate 

extended outages and account for reliability concerns. EPA states that it believes that this 

“would have been consistent with EPA’s assessment 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 air 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 for closed-cycle cooling from the design stage. 

EPA also states that increased emissions could 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 the 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 costs of a retrofit to such a plant 

may not justify the benefits.332 

Thus, EPA opted for a lowest common denominator strategy – setting no uniform 

entrainment standard, and basing the impingement standard 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 that must be applied if available. 

Similarly, regarding impingement, while EPA acknowledges that velocity reduction to 

0.5 feet per second is available at many facilities and is more effective at reducing mortality than 

traveling screens,334 it proposed an impingement standard that allows a facility to choose 

between reducing velocity and installing traveling screens. And although 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 feasible 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 impingement standard based on the use of modified 

traveling screens or velocity reductions that applies to all units; flow reduction commensurate 

with closed-cycle cooling only for new units at existing facilities; and a case-by-case decision 

making approach to entrainment 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 entrainment standard based on the use of modified traveling screens 

or velocity reductions for all units, but the closed-cycle-cooling -based entrainment standard 

would only be required of larger units – those with 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 considered a fourth possibility that is even less 

protective than Option 1. Option 4 would adopt a case-by-case approach to entrainment and 

apply the uniform impingement standard only to those facilities with a design intake flow greater 

than 50 MGD. Facilities with a lower intake capacity would be subject to case-by-case 

permitting for both impingement and entrainment. 

C. The Regulatory Impact Analysis 

EPA considered the social costs of the proposed rule and the distribution 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 impacts of the rule in terms of reduced mortality 

and other benefits, then by trying to monetize these benefits. 

EPA estimates the total social costs of the proposed rule (Option 1) are $384 million.340 

If 100 percent of the rule’s costs for electricity providers were borne by the ratepayers, this 

would amount to an average cost of $1.37 per year per household, or approximately 11.5 cents 

monthly.341 By comparison, EPA estimates that the total 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 “the 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 are 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 conservatively, that the business had to absorb 100 

percent of the rule’s costs.345 EPA found that no facilities would close and, even under Option 3, 

only 3.4 percent of facilities would experience even “moderate” cash flow impacts.346 

Finally, EPA estimated the administrative costs that states and territories will incur in 

implementing the rule at existing facilities. “EPA estimates that the total annualized cost for 

these activities will be $5.31 million for Option 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 impingement 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 would save 407,922 million fish (as well as sea 

turtles and other endangered and threatened species).348

Although the fish-protection benefits of Option 3 are 1000 times greater than Option 1, 

the agency could not perform a comparable and complete monetary analysis of the options. EPA 

found that “quantifying and monetizing reductions in I&E mortality losses due to the regulatory 

options is extremely challenging.”349 Since many benefit categories 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 benefits under Option 1 justified 

its costs. The agency explained that cost-benefit analysis should not ignore non-monetizable 

benefits: 

The assessment of benefits must take into account all benefits, including 

categories such as recreational, commercial and other use benefits, benefits 

associated with reduced thermal discharges, reduced losses to threatened and 

endangered species, altered food webs, nutrient cycling effects, and other nonuse 

benefits. Merely because there 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 and $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 considered justify the costs. 

D. The Rulemaking Process: Changes Made at the Direction of OMB. 

Shortly before proposal, EPA submitted a draft of the Proposed Rule to the Office of 

Information and Regulatory Affairs (OIRA) within 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 Losses and Reductions for All In-Scope 

Facilities by Regulatory Option). Expressed in age-one equivalents (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 Intakes 
54 

proposed rule, revealing any amendments made to reflect OMB’s suggestions and 

recommendations.355 The key changes made at the suggestion or recommendation of OMB are 

as follows.356

 1. Changes Relating to EPA’s National Cost-Benefit Analysis 

EPA strongly doubted that a meaningful national 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 because 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 

equivalents358] of organisms entrained by cooling 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 portion 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 copying (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, Riverkeeper 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 essence 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 complaint. 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, years, 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 circumstances, a complete national weighing of costs 

and benefits is not possible at this time.”360 

However, OMB deleted EPA’s concerns 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 analysis exercise, removing phrases like “thus, the 

universe of even ecosystem benefits that [the analysis] can quantify is small.”362 

2. Changes Relating to the Case-by-Case 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 comprehensiveness of cost-benefit estimates where 

non-use, non-market values are so important. Therefore, the agency explained that a Director 

“may” take estimates of social costs and benefits into account when conducting a site-specific 

BTA analysis, but should keep in mind that these 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 quantified and monetized estimates of benefits 

are more uncertain and less comprehensive than the estimates of costs. Important 

benefit effect categories will very likely 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 meaning 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 reject an otherwise available 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 begins with consideration of the best performing 

and available technology to reduce entrainment or impingement. Only if the 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. And “the test should be 

applied to the next most costly entrainment technology until the social cost of the proposed 

entrainment technology no longer violates the wholly disproportionate rule.”367 

b. OMB Directed EPA to Abandon its “Wholly Disproportionate” Test 

and 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 fundamentally rewriting the 

approach that state permit writers must follow in making BTA determinations. OMB also 

deleted EPA’s comment that it has used the wholly 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 their 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. Additionally, 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 costs “are not justified” by its benefits.372 Thus, OMB 

proposes to allow Directors to engage in open-ended consideration of multiple factors so long as 

the end result is “justified” in the agency’s opinion. OMB has significantly 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-Cycle Cooling Is the “Best 

 Performing Technology,” but OMB Deleted this Conclusion.

EPA’s original preamble and rule text stated that “closed-cycle cooling is the best 

performing technology for reducing entrainment mortality, but it may or may not be the BTA for 

individual facilities in light of site-specific considerations.”373 Under EPA’s original case-bycase analysis as outlined above, because closed-cycle cooling is the best performing technology, 

a Director would be required to determine whether 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 compliance are wholly disproportionate to the social benefits.”374 

Thus, EPA intended for closed-cycle cooling to be the default compliance technology 

nationwide. 

However, OMB deleted EPA’s conclusion that closed-cycle cooling is the best 

performing technology,375 and only left EPA’s statement that it had evaluated closed-cycle 

cooling as a “candidate best performing technology.”376 

d. OMB Also Deleted EPA’s Statement 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-cycle cooling standard with variances: 

In theory, EPA believes that site-specific determination of BTA entrainment 

mortality controls will result in the same reductions – will “minimize adverse 

environmental impact” – as a one-size-fit-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 controls are appropriate in virtually all 

circumstances. The proposed decision not to establish uniform national 

entrainment controls was not a decision 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 Analysis at the Heart of the Decision 

Making Process, it Deleted EPA’s Guidance on How to Perform CostBenefit Analysis. 

After deleting EPA’s statements about the very significant uncertainties involved in the 

cost-benefit analysis process, OMB made a highly ambiguous form of cost-benefit analysis the 

linchpin of the rule. OMB would require monetized cost-benefit analyses wherever possible.379 

But, at the same time, OMB deleted and weakened 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 social and facility costs of installation downtime 

and energy penalties, and how these costs should be calculated to avoid overestimating the social 

costs.380 

OMB also removed EPA’s guidance on discount rates. EPA had called for facilities to 

use a “social discount rate . . . reflecting society’s rate of time preference as opposed to a 

facility’s cost of capital,” and suggested 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 explanation “for any reviewer comments not accepted.”383 OMB 

changed this, only requiring explanation 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 repowerings as new units, but OMB excluded 

replacements and repowerings from 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 extent 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),(10),(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 than existing units. Repowering, 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 utilize combined cycle or cogeneration 

in the repowered unit. The requirements for new units are modeled after the 

requirements for a new facility in the Phase I rule. 

EPA has adopted this approach for the following 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, facilities 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 the control of the facility and would be 

dictated strictly by the facility’s internal 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 efficiency cooling towers can be designed 

as part of the unit replacement, allowing for installation of smaller cooling towers. 

These advantages may not always be available when retrofitting cooling towers at 

an existing unit. In consideration of the fact that these repowering, replacement, 

and additional unit construction decisions rest largely within the control of the 

individual facility, EPA decided that subjecting these operations to the same 

national BTA requirements as those applicable to new facilities is warranted.386

OMB also deleted EPA’s extensive and reasoned explanation of why replacements and 

repowerings should be considered new units, and why a retrofit to closed-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 useful expected plant life and therefore found in general 

this would mean that closed-cycle cooling 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 considered 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-cycle 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 cooling with only a modest increase 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 disincentive for new facility construction, as 

demonstrated by numerous instances where recently constructed facilities are 

using closed-cycle; see 66 FR 28856; also see 66 FR 28865. 

Further, EPA’s analysis shows the generating 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 limitations preclude operation of once-through 

cooling; these facilities have employed cooling 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 delete 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 Option 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 Option 2, EPA noted that its decision to allow 

Directors discretion to give facilities 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 evaluated would have 

significant effects on national 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 EPA’s electricity market impact analysis by 

stating that “the early retirements among in-scope facilities under the proposed regulatory option 

have little impact at the level of national and regional electricity markets.”392 But with respect to 

Option 2, OMB deleted EPA’s conclusion that although 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 only “3 percent of closure capacity occurs in generating units that 

otherwise appear to be reasonable economic contributors to electric power generation.”393 

Finally, OMB directed the addition of a summary of economic impacts which states: 

“EPA has considered the totality of these measures of economic impacts in concluding that there 

are no significant economic impacts associated with Option 1 (the preferred option) or Option 4, 

while there are considerably greater economic impacts associated 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 impingement compliance, even at facilities where 

the Director recognized that a plan to install closed-cycle cooling for entrainment compliance 

would extend beyond the eight year window. EPA recognized that keeping to a firm window 

might require some facilities to install impingement controls that become redundant when the 

closed-cycle cooling retrofit comes online, but EPA stated firmly that it “does not intend for the 

facility to do nothing to reduce [impingement] until 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 stratify 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 frequencies or leave this determination to the 

Director.”398 

c. OMB Removed Extra Protection for Species of Concern. 

EPA had originally required facility operators who reduce intake velocity to 0.5 

feet/second or less to document that this measure adequately protected species 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 conflict with a safety requirement established by the [Nuclear 

Regulatory] Commission.”400 However, OMB deleted EPA’s clarifying statement that the 

exception was narrow and that “[t]echnical 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 BTA 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 cooling would result in significant 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 Prove that, at Their Site, Entrainment 

Mortality Is Less Than 100 Percent. 

OMB added a sentence to the preamble stating that 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 ACCORDANCE WITH LAW, IS 

SIGNIFICANTLY WEAKER THAN EPA’S PRIOR 316(b) 

RULES, AND WILL NOT PROTECT AQUATIC RESOURCES 

UNLESS IT IS SIGNIFICANTLY STRENGTHENED 

In introducing the Proposed Rule’s BTA determination, EPA stated that it “has decided 

not to re-propose requirements similar 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 decades since Congress first directed 

EPA to take action. For the reasons explained below, the Proposed Rule is both illegal and poor 

policy, worse in many ways than the Phase II framework (which was itself impermissibly weak, 

but at least purported to establish national categorical 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 interpreted and applied that 

provision.408 EPA’s interpretation is, however, deeply flawed and plainly contradicts the statute 

in several important respects; many of the Proposed Rule’s fundamental flaws spring directly 

from the Agency’s misunderstanding of its own 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 Intent for the CWA’s Technology-Based 

Regulatory Program. 

EPA takes the mistaken view that the integration 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 challenging 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 reference 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 absence of any factors language in Section 316(b), 

EPA has more discretion in its standard setting under Section 316(b) than under the effluent 

guidelines provisions.”410 In fact, while EPA may look to the factors set forth in sections 301 

and 306 (and, by extension, section 304) in formulating the substantive content of BTA 

regulations, EPA is not free to disregard the fundamental regulatory principles inherent in the 

basic fabric which underlies all of the BAT, BPT, BCT, and BADT standards promulgated 

pursuant to those sections. Put slightly differently, while BTA requirements may impose a 

different substantive standard than the effluent limitations – indeed, each type of effluent 

limitation embodies a different substantive standard – 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 particular to one or another of the effluent limitations (such as section 306’s 

prohibition against variances), nevertheless held that BTA standards must adhere to Congress’s 

intent for the entire technology-based program. For example, in Riverkeeper I the court began 

by explaining that “review [of] the entire statutory scheme ... [and] its development assists in 

interpreting the narrow statutory provision [i.e., Section 316(b)] before us.”412 Similarly, in 

Riverkeeper II, the court began by noting that its “interpretation of Section 316(b) is informed by 

the two provisions it cross-references, CWA sections 301 and 306.”413 

The Second Circuit in both of those cases went on to remand the restoration measures 

provisions in Phase I and Phase II rules, in part, 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 directly, 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 principle” 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 and 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 restoration measures provision.417 And that decision also remanded one of EPA’s 

site-specific compliance options because, as the court explained, “Congress changed its approach 

in 1972, [and] ... [t]he Act now regulates discharges from point sources rather than water 

quality.”418 

Nothing in the Supreme Court’s Entergy decision affected those holdings, as that court 

merely considered whether Congress had prohibited cost-benefit analysis for BTA, despite 

requiring it for BPT.419 Thus, that decision, which explicitly left undisturbed all of the Second 

Circuit’s other holdings,420 concerned the differences between the various technology-based 

standards rather than the regulatory approach common to all of them. 

The fundamental precepts that apply to BTA requirements 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-pipe” restrictions, and (iv) the assessment of 

consequential water quality effects only as a secondary task and only to make the requirements 

stricter than is dictated by technology 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 Statutory Term “Available” Is Unlawful. 

In one instance of this derogation of Congress’s intent and the plain language of the 

statute, EPA has applied an unlawful interpretation 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 every regulated facility in the United States. Thus, EPA rejected 

closed-cycle cooling as BTA and avoided setting a nationally uniform entrainment standard 

because it could not identify “a single technology 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 legislative 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 when 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 analysis 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 rule, the Phase III rule for oil rigs, and the “new 

units” provisions in the Proposed Rule each set Section 316(b) standards primarily based on 

technological and cost considerations, but not a strict cost-benefit approach, and none of them 

authorize permit writers to undertake cost-benefit analyses on a site-specific basis.424 In 

ConocoPhillips, the Fifth Circuit upheld EPA’s decision not to perform a cost-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 considerations on a site-specific basis. 

Nevertheless, to the extent EPA chooses to engage 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 concluded that EPA may permissibly consider 

costs and benefits in its BTA determination and E.O. 13563 directs EPA only to 

propose regulations based on a reasoned determination that the benefits justify the 

costs, EPA has taken costs and benefits into account in this proposal. EPA has 

concluded that the benefits of the 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 restricts EPA’s investigation of, and reliance upon, cost-benefit 

analysis in choosing a regulatory option, establishing nationwide performance standards 

and procedures for them to be applied in permits. 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-forcing objectives,” while merely using costbenefit analysis to “prevent results that are absurd or unreasonable 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 other 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 built. Instead, the EPA calculated 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 the analysis is a “limited” and “relatively 

subsidiary task” rather than a “primary” or “paramount” factor, in light of the “difficulty 

of quantifying all the benefits of minimizing the adverse impacts 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 – whether the wholly disproportionate 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 National 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 national categorical entrainment standard based on 

closed-cycle cooling. EPA considered two such options: Option 3 which applies closed-cycle 

cooling to all facilities subject to the rule, and Option 2 which 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 option 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 Congressional directive 

to adopt effective, national, and uniform standards. Further, it is arbitrary and capricious of EPA 

to claim that it will fulfill its statutory duty to minimize the adverse environmental impact of 

cooling water intakes by delegating BTA decisions to the states. Forty years of experience 

shows that states cannot make these permitting choices, 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 across 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 particular case-by-case regime that EPA has designed is particularly 

egregious in its legal infirmity. It leaves state permitting authorities unfettered discretion in 

setting standards, effectively allowing industry to self-regulate by proposing 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 Language 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 and technology-forcing BTA standards for cooling water intake 

structures. Beyond the explicit directive to establish “standards” 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 other technology-based standards, Section 316(b) standards must be 

implemented on a nationwide, uniform basis. 

 Further, national technology-based standards 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 interest 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, national, technology-based standards to minimize the 

adverse environmental impact of cooling 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: EPA determined that closed-cycle cooling is a 

best performing technology428 and that numerous existing facilities had retrofitted to closedcycle.429 EPA is concerned that “closed-cycle cooling is not practically 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 should not establish closed-cycle cooling as the presumptive BTA 

entrainment control.”431 As noted above, Congress gave EPA the ability to subcategorize the 

regulated industry and/or to offer variances 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 standards because closed-cycle cooling and other 

technologies are available to the industry as a whole and EPA has the ability to issue variances in 

the rare case where it is technically infeasible. And, as outlined above, a case-by-case approach 

directly contradicts Congress’ general intent to end site-specific permitting under the Clean 

Water Act, and it contradicts Congress’ specific intent 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 restore and maintain the chemical, 

physical, and biological integrity 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 categorical 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 looking at various thresholds and options for 

subcategorizing. EPA cannot aggregate all industries using intake structures and then default to 

a case-by-case regulatory approach, merely because it cannot find one technology 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 may set entrainment controls at a particular 

site, the state permitting Director must consider the entrainment impacts on the waterbody, the 

ecological costs and benefits of the BTA candidate technologies (including to any threatened or 

endangered species), and the thermal discharge impacts of the candidate BTA technologies.435 

Additionally, to determine the environmental impacts of entrainment on the waterbody, the state 

permitting authority must also review “source water 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 determination. To the extent that this requires, or 

merely allows, states to analyze the consequential 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 Clean Water Act. As noted 

above, “Congress [intended] that the ‘design’ of intake structures be regulated directly, based on 

the best technology available, and without resort in the first instance to water quality 

measurements.”437 It deliberately established the NPDES program to relieve permitting agencies 

of the need to conduct costly, lengthy, and indeterminate 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 extent 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 lenient, 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-specific water quality considerations as the 

basis for case-by-case standard setting or as the 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 categorical standards on the basis of the best 

technology available to minimize adverse environmental impact without respect 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 technology-based standards and instead order states to 

set water quality-based standards not only violates the law but marks a return to the pre-1972 

regulatory approach that Congress 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 that this Proposed Rule imposes. EPA thus abuses its discretion 

by claiming that this empty delegation of responsibility – which simply continues the current, 

failed site-specific permitting system – is adequate 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 basis “represents the best technology available for minimizing the 

adverse environmental impacts associated with intake structures”441 and that (2) “[s]ite specific 

proceedings are the appropriate forum for weighing all relevant considerations in establishing 

 438 Riverkeeper I, 358 F.3d at 196; see Riverkeeper II, 475 F.3d at 114 (“[I]n enacting 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 impacts” 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 would require plant operators to 

submit, and permit writers to evaluate, at least the following studies: 

• Source Water Physical Data; 

• Cooling Water Intake Structure Data; 

• Source Water Baseline Biological Characterization Data; 

• Cooling Water System Data; 

• Proposed Impingement Mortality Reduction Plan; 

• Performance Studies; 

• Operational Status; 

• Entrainment Characterization Study; 

• Comprehensive Technical Feasibility and Cost Evaluation Study; 

• Benefits Valuation Study; and 

• Non-Water Quality Impacts Assessment443

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 resulted in uneven and conflicting rulings, the 

widespread use of inferior technology, as well as enormous, unnecessary aquatic mortality, all of 

which run contrary to the goals of the Clean Water Act and the direct mandate of Section 316(b). 

On December 13, 1976, EPA issued its first cooling water intake regulation to implement 

Section 316(b). Industry filed suit and, without 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, cooling 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 complex 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 requires significant resources on the part of 

the regulatory authorities that must implement 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 develop, submit, and refine [multi-year, multidisciplinary] studies that characterize or estimate potential adverse 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 each specific facility.446 

EPA also acknowledges that “site-specific options increase the likelihood that each 

significant cooling water intake permitting issue 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 consideration of biological and ecological conditions is one of the key drivers of this 

complexity, controversy, imprecision 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 overwhelming 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 factors make biological studies very 

difficult to perform and make causation, in particular, difficult to determine.448

Biological complexity and the lack of categorical standards make industry’s superior 

resources a critical strategic advantage. Many states, including New York, New Jersey, Texas, 

Louisiana, Michigan, Wisconsin, Minnesota, and Kansas, have complained to EPA of the 

extreme burdens of making these decisions on a case-by-case, site-specific basis. For example, 

the New York State Department of Environmental 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 requirements” that set “nationally-applicable minimum 

standards” so that “companies and regulators could put their staff and monetary 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 Facilities, 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 species, let alone many fish species. The 

results of biological population studies 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 minimization 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 permitting program in Michigan if the 316(b) 

regulations ... require environmental effects studies at individual facilities. My 

experience indicates that studies of the effects of cooling water intake structures 

on the receiving water fisheries are extremely difficult to do and the results are 

difficult to interpret. The burden would be considerably reduced if the regulations 

require specific cooling water intake structure 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 permitting 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 Comment 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 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, 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 reports (such as noise, 

grid reliability, air emissions, social benefits). . . . 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 state funding resources resulting from state budget 

restraints, expected reductions in EPA program funding, reduced program staffing because of 

funding restraints over the last several years, and increased workloads in the NPDES arena make 

simplification of the proposed 316(b) Rule provisions imperative.”456

According to the Minnesota Pollution Control Agency (MPCA), EPA’s rules force 

permitting agencies: 

to play a critical role in the preparation of these application materials, in addition 

to the final review of the application materials and peer review comments during 

the permit development process. The MPCA believes that this proposed 

regulation requires expenditure of agency 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 mortality reductions instead of specifying 

reductions within these proposed regulations.457 

Instead of onerous case-by-case decision making, “the MPCA is in support of establishing 

nation-wide performance standards for minimizing adverse environmental impacts resulting 

from cooling water intake structures.”458 

Similarly, Wisconsin stated that “[s]pecific performance standards ... make BTA 

decisions easier. . . . For example, if cooling towers are the ideal, why not set this as the EM 

[entrainment mortality] standard but allow for permittees to demonstrate why this will not work 

for a given situation?”459 

 The lesson learned in these states and around the country in the nearly four decades since 

Section 316(b) was enacted is that state permit writers lack the resources and expertise to permit 

intake structures in the absence of national categorical requirements, while applicants can use 

site-specific standard setting procedures to bring permitting to a grinding halt. The electricity 

industry has long and vigorously urged site-specific approaches and cost-benefit tests 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 inundating regulators 

with site-specific information and then contesting every aspect of the permitting process so as to 

avoid technological upgrades. (As just a few examples of the many power plants whose 

permitting proceedings have been confounded by the lack of national intake structure regulations 

and the resulting case-by-case approach, 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 million 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 that expired in 1995 or 

earlier.462 States cannot even re-issue permits in a timely manner, therefore, it is clear that they 

are unable to complete the expensive and labor-intensive technology review required by the 

proposed rule. 

This problem will only get worse as those state agencies are subject to ever-worsening 

budget cuts. In 2011 alone, state funding for environment and energy agencies in New York was 

cut by ten percent,463 and state funding for the North Carolina 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 two 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 regulatory 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 addition, 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 Years 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,” AOL NEWS (Feb. 1, 2011) (Exh. 98) also 

available at http://www.aolnews.com/2011/02/01/new-york-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, THE ARIZONA REPUBLIC (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 environmental agencies has also been cut. The EPA’s 

budget for the 2011 fiscal year was cut by 16 percent, and EPA passed that loss on to the states 

by cutting the federal funding given to state environmental agencies. Experts predict that the 

EPA’s budget will be cut again during the next appropriations 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 environmental laws than they did a few years ago.467 

These cuts have left state environmental agencies 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 authorities almost never complete site-specific 

determinations in a timely manner, 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 water impacts in the absence of national categorical 

requirements. Experience over the last four decades 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 that will leave waterbodies across the country 

unprotected. Any cooling water rule EPA promulgates cannot be effective unless it is simple 

and straightforward to implement, and does not require case-by-case determination 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 impacts associated with intake 

structures” 469 is irrational and illegal. 

(2) States Cannot Conduct, or Meaningfully Review, Site-Specific 

Cost-Benefit Analyses. 

 Similarly, and more particularly, it is arbitrary, capricious, and an abuse of discretion for 

EPA to require states to perform the task that it knows, above all, they cannot possibly 

accomplish: evaluating the consequential, 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-case, cost-benefit analyses, they also must 

 466 Id. 467 Juliet Eilperin, EPA budget cuts put states in bind, THE WASHINGTON POST (June 20, 2011) (Exh. 101) also 

available at http://www.washingtonpost.com/national/environment/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 certainly not in today’s 

leaner times as state agency resources are stretched ever 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 ineffective and wildly inconsistent permitting 

decisions – exactly the opposite of what Congress expected when it ordered EPA to set standards 

under Section 316(b) and what Administrator Jackson promised in asserting the rule would 

provide “regulatory certainty.” 

 It is clear that states cannot conduct cost-benefit analysis under section 316(b) because, 

even with the resources of the federal government at its disposal, EPA itself could not do it. 

EPA was incapable of making meaningful cost-benefit determinations for fundamental reasons: 

considerable uncertainty in quantifying the physical benefits of the rule, and beyond that, an 

inability to assign meaningful and accurate monetary 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 think 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 acknowledges that they exist and are important. 

For example, “[w]hile EPA can identify and hypothesize 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 with quantifiable environmental benefits. Thus, it is highly likely 

that the total environmental and monetary impacts of CWISs are significantly 

underestimated...”473 

 EPA also believes that its calculations underestimate the environmental impacts of intake 

structures in other ways. For example, EPA confirmed that at least 15 threatened and 

endangered species are currently killed by cooling water intake 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 facility’s intake structure.475 In all, EPA 

 471 See 76 Fed. Reg. at 22,205 (col. 3) (the state permitting 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 physical 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 quantify 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, shellfish 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 fully 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, commercial fishing, nonuse benefits, and 

benefits to threatened and endangered species.478 

Even a (comparably) well resourced federal agency applying “the best currently available 

science” was forced to conclude that its estimates of non-use benefits 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 base 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 estimated benefits of this rule requires EPA to make difficult, 

sensitive, value-laden, and highly subjective assumptions. This comment letter summarizes key 

points from a more extensive environmental economic report prepared by two of Stockholm 

Environment Institute’s senior economists, Frank Ackerman and Elizabeth Stanton.481 The full 

Stockholm Environment Institute (SEI) report is attached to these 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 (“SEI 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 ecosystems from human behavior in markets: 

[e]thical statements about nature, environmental integrity, and obligations 

to protect ecosystems and biodiversity, which are at stake for many 

people, are only awkwardly translated into the language of monetized nonuse values. The beliefs of many stakeholders may be distorted beyond 

recognition in this process (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, review, and rely upon intensive cost-benefit 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 applicants (who are required to conduct the costbenefit study in the first instance) will first need to accurately estimate the number of fish of 

different species and different life stages lost to cooling water 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 standardize fish counts across different life stages. 

To value forage fish species in terms of their 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 the way that regulated facilities monetize their 

benefit estimates. Valuing commercial fishing benefits entails retaining economists, assessing 

regional fish market price data, and evaluating economic models of producer and consumer 

surplus, taking into account any price shifts due to increased supply. 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 attempt something akin to EPA’s “Random Utility 

Model” (RUM). For ecosystem benefits, either the applicants or the States will need to conduct 

original stated preference studies or attempt a benefits transfer approach, which even EPA could 

not do. And the entire approach of treating non-use values as monetizable values rather than as 

ethical constraints is problematic for most people. 

 In short, EPA found it incredibly difficult to quantify the environmental 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 great 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 analysis 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 failed 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 will plague the states as well. EPA’s inability 

to complete a cost-benefit analysis provides specific, 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 inability to implement Section 316(b) without national standards is 

most pronounced when it comes to cost-benefit analysis. The Atlantic States Marine Fisheries 

Commission told EPA that “state permitting agencies do not have the appropriate staff to 

properly evaluate ... comprehensive cost-benefit analyses.”486 In commenting on the Phase II 

rule, New York State wrote that site-specific cost-benefit analysis “could effectively negate the 

value of the entire Phase II rule ... [because] the 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 EPA 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 analysis gives existing facilities a powerful tool 

to evade regulation by converting NPDES permitting into a lengthy, controversial and ultimately 

futile debate about fishing yields and fish prices, and how much environmental protection is 

worth to the public. Such delays are an enormous impediment to protecting the natural resources 

Congress intended to EPA to safeguard. As the D.C. Circuit explained in affirming EPA’s 

refusal to consider receiving water quality in setting effluent limitations for the pulp and paper 

industry, “Congress clearly intended ... to avoid such problems of proof so that a set of 

regulations with enforceable impact is possible.”489 

 Accordingly, EPA should not require state agencies 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, Atlantic 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 Facilities, 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 Requirements 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. Environmental 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 methodologies, and other issues will be bought and 

paid for by the regulated entities – as will the “independent” reviews of these studies. It will be 

critical, but impossible, for states to meaningfully oversee and review the work of consultants 

and industry experts. Regulated entities will end up self-regulating because they pay for the 

studies underpinning the state’s entrainment control decision, pay for 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 writers with unfettered discretion to set 

standards and reject better performing technologies. The Proposed 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 forth nine criteria that must be considered, 

the Director can consider any other criteria as well. And although they must all be “considered,” 

there is no indication of which criteria are more important than others, and in any case, all of 

them can simply be overruled by an additional tenth criterion added by the state. This is an 

open-ended balancing test in which permit writers have unfettered discretion to reach and justify 

any decision at all on any grounds that they please. By leaving permit writers with unlimited 

discretion to make case-by-case decisions, EPA is not only failing to set a standard, but 

experience with unconstrained case-by-case decision making under Section 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 Proposed Rule abandons EPA’s “wholly 

disproportionate” standard for cost benefit analysis, and allows permit writers to reject any

superior technology if its benefits “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-based 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-benefit test that it may employ under Section 316(b) 

and prohibits the establishment of BTA requirements 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 under the statute's former BPT standard . . . .”). 
83 

analyses.493 In particular, “the courts of appeal have consistently held that Congress intended 

Section 304(b) . . . to preclude the EPA from 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 affected 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 impingement 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 anything contemplated by Congress for BPT: a 

comparison of monetized social benefits, calculated based on an assessment of consequential 

water quality effects, with monetized social costs. 

 EPA’s use of the phrase “benefits justify the costs” may be lawful only as a reformulation 

of its long-standing “wholly disproportionate” test. But if, as appears 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 new standard violates the Clean Water Act. 

 OMB removed from the Proposed Rule the few provisions that would have helped 

mitigate the problems noted here. EPA originally 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-benefit analysis a primary consideration, using 

it only to eliminate extreme results: it wrote that a state may not reject “an otherwise 

available technology . . . unless the social 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 “if 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 installing environmentally protective controls for 

years, or even decades. If promulgated as proposed, the case-by-case entrainment provisions 

will sanction precisely the kind of regulatory uncertainty that Congress intended NPDES 

 493 See EPA’s understanding of its cost-benefit 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 dislocation 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 achieved.”) (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 agencies have explained and EPA acknowledges – permit 

writers will have unfettered discretion to unlawfully reject better 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 standards 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 Facilities, Would Minimize Adverse 

Environmental Impacts. 

In developing the Proposed Rule, “EPA concluded 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 addition to reducing impingement and entrainment, closedcycle cooling also reduces thermal pollution, protect endangered species and the biological 

integrity of ecosystems, increase fish populations and fishing yields, increase 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 cooling and EPA has not concluded, or even suggested otherwise. By 

EPA’s own calculations (which are significant underestimates due to the age of the data and 

other factors), Option 3 would save more than 500 billion of individual aquatic organisms per 

year499 and result in estimated increases to fishery yields from two to more than 100 times 

greater than those under Option 1, depending on the region.500 In the 2001 Phase I Rule and in 

the requirements for new units at existing facilities proposed as a component of the Proposed 

Rule, EPA set or proposes to set a national categorical standard requiring those facilities to 

reduce their intake flow to a level commensurate with that which could be achieved with a 

closed-cycle recirculating 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, contrary 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 Demonstrates that Closed-Cycle Cooling is 

Available to the Existing Facilities Because Retrofits are Feasible and 

Inexpensive. 

As noted in the preamble, “EPA’s record shows numerous instances of existing facility 

retrofits to closed-cycle.”502 For example, retrofits of closed-cycle cooling on existing plants 

were completed many years ago at a gas-fired plant 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-fired Canadys Steam Plant and 346 MW Jefferies Coal Plant in 

South Carolina).503 More recently, retrofits were completed at the McDonough (520 MW coal) 

and Yates (1250 MW, coal) plants on the Chattahoochee River in Georgia 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, coal/oil) in Somerset, Massachusetts. 

As discussed above, “technology-forcing” standards 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 average 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 facilities makes it “available” as that term is used in 

Section 316(b). 

Further, the costs of retrofitting to closed-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 Option 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 legally irrelevant (for 

the reasons just described), but also dramatically overstate the extent 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 facilities 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 justify a case-by-case approach for all facilities, as EPA 

has done in the Proposed Rule, is arbitrary and capricious. 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 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 parallel banks of in-line towers.508 Because cooling cells can be 

installed in a back-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 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 generation (as well as a variety of other public goods 

and services) is well-established and should 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 reasonable only to the extent 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 timeframe, 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, meaning 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 1970s, and in every decade since then, power plant 

operators have made the argument that they have 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 continued 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 and 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 their expected useful life, remaining life is not an obstacle to the 

availability of closed-cycle cooling. 

Ironically, some newer plant operators may even attempt to make the argument that 

consideration of “remaining useful life” excuses them from compliance 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 intends 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 Cooling Technology as their Modern 

Counterparts Would Not Cause Any Significant Adverse Impacts on 

Energy Supplies, the Economy or the Environment. 

(1) Requiring Closed-Cycle Cooling 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 Option 3 would cause very few, if 

any, plant retirements and any consequential retirements will not adversely affect system 

reliability. According to EPA’s estimates, the additional retirements (whether full or partial) 

caused by Option 3 would total only 17 gigawatts, which represents less than 1.5 percent of total 

capacity in 2028.513 Moreover, even this estimate drastically overstates the extent of actual 

retirements for a number of reasons. 

 510 See, e.g., Press Release “Nuclear Regulatory Commission, Department of Energy and Nuclear Energy Institute 

Sponsor February Workshop on Extended Operation for Nuclear Power Plants,” 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 recent 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 analysis that none of the costs of the regulation 

would be passed on to consumers, an obviously incorrect and highly conservative 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 adverse 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 attached report explains in more detail, EPA used 

out-of-date demand forecasts. Under current forecasts, 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 electricity 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 average annual cost per residential household in 

2015 would be less than $1.47 per 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 costs 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 absorb some of these costs, thereby reducing the 

impact of today’s proposed rule 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 analyses, 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 electricity 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 plants are paid for electricity regardless 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 existing plants that still use once-through cooling are pocketing the 

difference. The same is likely true to a certain extent in other deregulated states. Accordingly, 

any increase in electricity prices would be negligible and barely noticed by consumers. 

(3) Requiring Closed-Cycle Cooling Would Create Jobs and 

Improve the Economy. 

 A review of EPA’s economic impact analysis by economists Professor Frank Ackerman 

and Dr. Elizabeth Stanton shows that a closed-cycle cooling standard would increase GDP and 

create jobs. EPA found, unambiguously, that stronger environmental protection leads to a 

greater GDP boost and a larger immediate spike 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 initial job creation impact of Option 3 is 

outweighed, over time, by jobs losses caused by rising electricity prices. As Prof. Ackerman and 

Dr. Stanton’s report explains, EPA’s analysis is based on two significantly flawed assumptions. 

First, EPA wrongly assumes that all compliance costs 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 that, in deregulated states, only about half of compliance costs are 

likely to be passed on to consumers. In deregulated 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 present effect. After only partially correcting for 

these flaws, Ackerman and Stanton find that Option 3 would create over 2,000 new jobs.524

(4) Requiring Closed-Cycle Cooling Would Not Cause Air 

Pollution or Any Other Significant Adverse Environmental 

Impacts. 

 In the preamble to the proposed rule, EPA states that requiring closed-cycle cooling 

retrofits will impose energy penalties 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 basis 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 impossible 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 retrofits. 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%. Additionally, over the past few decades, electricity 

production in the United States has consistently shifted 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 additional 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 gas-fired plants are exceptionally low. Additional 

power will also likely come from uprates at existing nuclear power plants and from the rising 

number of renewable energy sources 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 Cooling (“Calif. OTC Policy SED”), the State of 

California determined that, in the most realistic scenarios, some existing facilities would respond 

to a closed-cycle cooling mandate by repowering.528 The assumption is likely realistic at the 

national level too. (The California analysis is further explained below in Section III.E.5.c. of 

these comments.) 

To avoid upgrading their plants, industry frequently 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 cooling from being considered the Best Technology 

Available. That transparently false claim was rejected by EPA a decade ago in the context of the 

Phase I rule for new facilities. There industry raised 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 benefit. ... 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 demonstrate what the EPA overlooked, except through 

vague and speculative references to “local air quality, water resources, [and] energy 

markets” (which, as noted[,] ... EPA did consider) and the suggestion that closed-cycle 

cooling may require increased land use and have undesirable “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 Cooling Would Cause Some Facilities 

to Repower their Plants, Yielding Additional Environmental 

and Economic Benefits. 

Experience has shown that when power companies operating older, inefficient and, 

therefore, marginal plants are directed to upgrade their cooling systems, they will often choose to 

repower rather than retrofit or shut down. Repowering a heavily-polluting plant into a state-ofthe-art modern facility that can produce electricity cleanly, efficiently and at lower cost is a winwin for the environment and the economy. 

For example, as California developed a statewide policy for phasing out once-through 

cooling in recent years, “four of the original 21 coastal power plants have re-powered or are 

proceeding with re-powering projects that eliminate the use of once-through cooling water, either 

in whole or in part – Humboldt Bay, Long Beach, El Segundo, and Encina. A fifth closed-cycle 

cooled plant, Gateway, is being developed adjacent 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 require 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 purchased 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 more 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 approach 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 station (e.g. using combined cycle technology) 

that will reduce fuel use, greatly increase 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 process and mechanical draft cooling towers, 

cooling water was reduced from approximately 500 MGD to less than 10 MGD. 

The new BEC began commercial operation in mid 2005. Almost twice as much 

electricity is now being produced at far lower impacts to the aquatic resource.531 

Similarly, the Bergen power station, originally constructed in 1959 as a coal-fired plant at 

the confluence of the Hackensack River and Overpeck 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 with closed-cycle cooling and running 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 significant role in the market response to a 

closed-cycle cooling mandate, the net effect of Option 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 conjunction with the development of its statewide BTA policy. In a 

section entitled “Effects on Electric Reliability,” the Final Substitute Environmental Document 

for the Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant 

Cooling explained that, while “predicting the future operation of any one plant is conjecture at 

best,” when looking at the industry 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 cooling, [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 and convert to another use, or temporarily while 

waiting for more favorable economics 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.html (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 shown 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 economic benefits, particularly reductions in air 

pollution emissions. 

3. Option 2’s Entrainment Standard Is Far Superior to Option 1 and Option 4 

in All Respects. 

While Option 3 saves more fish and other aquatic organisms than Option 2 (the option 

which requires closed-cycle cooling for all facilities 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 administrative burden on states is least for Option 3 because it 

does not require extensive consideration of technological, biological and economics studies as do 

Options 1 and 4 (to a tremendous degree) and Option 2 (to a somewhat lesser degree). Option 2, 

however, is far superior to Options 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 information submittal 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 withdrawn Phase II rule and 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 months after approval at nuclear 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 schedule for closed-cycle cooling retrofits.537 

This schedule is consistent with what EPA required for the Brayton Point plant, where 

the final compliance order required the company to complete construction of closed-cycle 

cooling within 29 months of getting all permits and to fully meet the closed-cycle-cooling-based 

permit limits seven months after that, for a total 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 proposed 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, EPA 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 includes 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 squarely 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-specific cost-benefit 

analysis. 

• Any calculation baseline must use an “actual 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 entrainment 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 ecologically 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 endangered species, but also 

those awaiting listing and other sensitive, keystone or otherwise important species are 

entitled to enhanced protection. 

• Arguments that some of entrained or impinged fish were dead before they were 

trapped by the intake structure may not be considered due to the difficulty in proving 

this. 

• The degraded quality of source or receiving 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 stricter, 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 structures or as a reason to regulate 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 considered 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 air 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 permitting 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 industry is entitled to special treatment may not be 

considered. 

• Projections of a plant’s remaining useful life 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 required at a plant that was recently built or 

refurbished may not be considered. 

• Arguments that an older Section 316(b) determination 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 technology over a more protective one; instead, less 

protective technologies that can be implemented more rapidly should be considered 

as interim measures to reduce impacts while 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 Categorical 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 standards 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 “virtually 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 Velocity 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, “impingement 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 regulating 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 national categorical standard requiring all new 

facilities to have a maximum design intake velocity of 0.5 feet per second (ft/s or fps).546 EPA 

established 0.5 ft/s as the appropriate minimum velocity requirement based on technical and 

scientific literature, state and federal 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 percent 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, the Electric Power Research Institute (EPRI) 

submitted a report in which it “agreed that intake 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 support in the record for 

a through-screen velocity limit of 0.5 ft/s.550 The Second Circuit rejected that challenge, finding 

that “EPA’s choice of velocity limit was reasonable.”551

“The Phase II rule used the same data, analyses and conclusions presented in Phase I to 

support a compliance alternative where 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 swim speed data (hereinafter 

“Swim Speed Data Memo”) December 8, 2008, at 1 (DCN 10-6705A) (EPA-HQ-OW-2008-0667-0660) (Exh. 117); 

see 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 land-based facilities, 

but continued to impose the intake velocity requirements on certain offshore facilities.”554 

Industry did not specifically challenge 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-examined 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 ft/sec through-screen velocity would be 

protective of 96% of species. ... Given 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), the 0.5 fps threshold also provides for an 

appropriate safety margin for aquatic organisms. ... Analyses were conducted to 

determine if the velocity threshold should vary by waterbody type. The swim 

speed data from the EPRI report was plotted by fish assemblage, a categorization 

of fish species by waterbody type (e.g., Pacific 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 type appear to be 

any more vulnerable than another; it is therefore 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-screen 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 showed, 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., cylindrical 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 travelling screens, it may not be as protective as EPA believes 

because not all fish with swim speeds faster than the velocity 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 facilities to meet it. Instead, the Proposed Rule 

gives facilities the option of choosing to meet 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 interpretation 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 shows not only that 18 percent of intake structures 

presently meet the 0.5 ft/s velocity 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 presently meet this requirement, of course, says nothing about whether the 

required technology is the ‘best’ or ‘available.’”562

3. The 12 Percent/31 Percent Impingement Mortality Reduction Requirement 

Is Problematic In Numerous Respects. 

As noted above, the 0.5 ft/s velocity limit is more effective than the technology on which 

the 12/31 percent standard is based, assuming that both 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 allows 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 fish be returned to the waterbody such that 

no more than 88 percent (the reciprocal of 12 percent) die over the 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 difficulties 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 (which, in this case, means preventing impingement 

through a velocity limit) rather than to let it happen and attempt 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 problems with the Proposed Rule’s 12/31 percent 

standard and the associated monitoring requirements, please see the report on biological issues 

prepared by PISCES Conservation, 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 Plan.” The plan must include a proposed 

biological sampling protocol for monitoring both 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 monitored; (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,” transferring them to a “holding area 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 Mortality Reduction Plan, after making a determination 

that each of these issues has been properly addressed. 

In practice, however, these issues are enormously complicated and controversial and will 

inevitably lead to disputes among the permitting authority, the permittee and others. As EPA 

acknowledges, “there are no standard 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 biological 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 monitoring 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 sampling and the interpretation of 

the results, state agencies (as well as the general public) lack the resources to fully and properly 

evaluate the sampling plans being submitted. 

In particular, disputes are highly likely to emerge with respect to the number of sampling 

events, the species to be monitored, how to properly account for periods when the plant is 

running at low capacity or when fish are relatively abundant or sparse in the waterbody and 

whether organisms died as a result of impingement or are naturally moribund (or plant operators 

may argue that organisms died as a result of the transferring and holding process). Especially 

controversial and fraught with difficulty is the 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 mortality 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, leaving substantial uncertainty as to whether 

impingement mortality has been actually reduced to the levels suggested by monitoring.565 

In contrast, determining the maximum velocity of an intake structure is far more 

straightforward. While it is unlikely that 96 percent of fish will be protected at every intake 

structure meeting the velocity limit, the statistical 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-specific basis. For that reason, extensive biological monitoring 

with latency holding periods is not required to determine compliance with the velocity limit, no 

sampling protocols to be developed, assessed, debated, approved, and ultimately disputed, and 

no holding period for assessment of latent mortality. 

b. The 12 Percent/31 Percent Standard 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 applicable 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 requirements 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 make a non-compliant facility appear to be 

compliant. For example, because certain fish species are more delicate than others and therefore 

less likely to survive impingement, by excluding those species from the monitoring requirements 

a facility that was not meeting the 12/31 percent limit would suddenly be deemed to be in 

compliance. Indeed, it is unclear whether the 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 plant 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 sampling 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 excluded is also problematic because there is no unanimity as to what species 

are considered invasive or whether all of those species are harmful. 
102 

director to exempt delicate species that would otherwise increase impingement mortality above 

the specified levels. In contrast, the 0.5 ft/s velocity limit will protect 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 shellfish barrier net requirements currently in the 

proposed rule. The maximum time frame for compliance should be shortened to three years or 

less. To the extent that some covered facilities might not be capable of meeting the velocity 

limit, a properly-crafted and properly-limited variance, consistent with that allowed under the 

Clean Water Act in these circumstances would be appropriate. Accordingly, 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 for 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 minimum 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 more 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 minimize 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 larger 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 impinged in any appreciable numbers. 

D. All Repowered, Replaced, or Rebuilt Facilities Must Be Subject to the Same ClosedCycle-Cooling-Based Requirements as New Units at Existing Facilities. 

1. Although the Closed-Cycle Cooling Standard for New Units at 

Existing Facilities Should Be Retained, 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 deferred regulation of all existing 

facilities – meaning all facilities that did not fit EPA’s strict definition 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 restates EPA’s definition of a “new source” of water pollution that is 

subject to new source performance standards 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 production equipment that causes the discharge of 

pollutants at an existing source; or 

(iii) Its processes are substantially independent of an existing source at the same site.573

 

Under the second part of EPA’s test, a new facility also has another essential 

characteristic: it either uses a new cooling water intake or an existing intake “whose design 

capacity is increased to accommodate the intake of additional cooling water.”574 

 570 An existing facility is any facility 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 facility’ in today’s proposed regulation is intended to ensure 

that all sources excluded from the definition of new facility 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 general 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 this two-part definition 

because “an existing facility could rebuild its whole facility behind the cooling water intake 

structure and not be subject to the requirements applicable to a new facility.”576 EPA admitted 

that, indeed, it was possible to “completely demolish 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 facilities, EPA will address this comment when it 

addresses what substantive requirements 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 capacity, facilities 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.” 

2. “The incremental downtime that can be associated 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 installation of smaller cooling towers. Thus, the 

capital costs for closed-cycle cooling at new units are lower than the capital costs for 

once-through cooling. These advantages may not always be available 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 decided 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 new 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 only 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, repowered 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 commenters identified in 2001 and that EPA indicated 

it would address in this rule: under the proposed rule, a facility operator can completely demolish 

every part of a site behind the cooling water intake structure and rebuild an entirely new plant, 

yet potentially evade the protective standards imposed upon all other new units. 

 EPA’s decision to call only units added in order to increase a facility’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 equipment at an “existing facility” is removed and completely new 

equipment is installed. The electric generating 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 singling out “additional” 

units as “new units” and not treating replaced, repowered, or rebuilt facilities as new units. The 

reasons that EPA gave for 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 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 demolishes 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 cooling standard (cells, different piping, etc.) is built behind the cooling water 

intake structure. Significantly, EPA’s technical experts agreed that 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 proposed 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 would be arbitrary and unreasonable; 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 definition 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 required 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 version 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 Section 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 before 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 Mortality 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 either § 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 recirculating 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 maintain, 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 Provisions 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 meaning 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 rule 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 concern” as a definition in the regulatory text. 

EPA should also extend additional protection to species of concern. Originally, EPA 

proposed to require facility operators 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 should be deleted, and EPA now seeks comment on 

the wisdom of such a provision.588 EPA should restore the provision as originally drafted. 

 

Protection for species of concern is important 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 protective 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 stronger 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 that “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) (requiring 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 Work 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 species, without limits and without standards, 

“from any monitoring, sampling, or study requirements of 40 CFR 122.21 and § 125.94.”590 

Currently, Section 125.98(c)(6) provides an exception that could swallow the Clean Water Act. 

The proposed rule requires all existing units to reduce impingement mortality 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 studies 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 entrainment decisions on a site-specific basis – EPA 

should set a national, uniform entrainment standard based on the performance of closed-cycle 

cooling systems. Such a standard would obviate virtually all biological monitoring 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 significant 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 that apparent survivors do not succumb to latent 

mortality – for example, being so drastically weakened or injured that they die slowly or fail to 

develop properly into juvenile fish. There are, however, no objective criteria for entrainment 

mortality studies and this means that there inevitably would be disputes between permit 

applicants and regulators (and intervenors) 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 entrainment or for other reasons. 

The net effect will be to open a new set of biological controversies that delay effective 

permitting. 

Further, there is little to be gained through the site-specific 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 common or the most endangered 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 because their protection can drive more stringent 

standards, and the most commonly entrained because 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, this is yet another information gathering effort 

whose costs significantly outweigh its benefits. Accordingly, EPA should adhere to its 

presumption that any individual entrained is killed. 

4. EPA Should Specify Minimum Monitoring Requirements. 

 EPA has requested comments on the monitoring requirements for impingement mortality. 

EPA should specify minimum monitoring requirements that meet the expectations it laid out in 

the preamble, rather than leaving monitoring terms to be determined by the Director. For 

example, EPA expects that regulated facilities will monitor impingement at least once weekly 

during primary periods of impingement, and that they will practice continuous monitoring in 6 to 

8 hour shifts that cover an entire 24 hour cycle.593 To ensure this expectation is met, EPA should 

codify the requirement in the final rule as a default 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 retains the 12-percent impingement mortality standard, 

EPA should require facilities to retain impinged fish for 96 hours in order to determine the extent 

of latent mortality. EPA should specify uniform 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 regulatory provisions to encourage 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 exception 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 additional environmental protection and water savings and improved 

reliability at both once-through and closed-cycle facilities that utilize freshwater intake. 

EPA’s proposed approach fails to fully recognize either the availability of reclaimed 

water or the public and environmental benefits of using reclaimed water 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 explicitly 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 available, particularly given that water availability 

threats are well known, and that widespread use and availability of reclaimed water can address 

both withdrawal and consumption impacts from power plant cooling. 

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

Cooling. 

Reclaimed (or treated) wastewater is a viable alternative to the use of freshwater or 

saltwater for cooling, and it eliminates the intake issues associated with once-through cooling 

and the consumptive use issues associated with closed-cycle cooling. 

The use of reclaimed water for power plant 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 closed-cycle cooling makeup water. The 3.3 GW 

facility obtains its water from two wastewater treatment plants in Phoenix and Tolleson. 

The majority of power plants relying on reclaimed water for cooling are coal-powered, 

although several are geothermal and 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 advantage of the benefits of reclaimed water for 

power plant cooling. 

For U.S. power plants currently using reclaimed 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/coalpower/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 facilities were identified in addition to those listed by Veil. 

600 Id. One additional facility worth noting is the West County 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 the 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 they are obtaining water from in order to have 

them conduct further (tertiary) treatment. Conversely, some facilities further treat the water 

onsite themselves. Under either scenario, effective measures, such 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 Available for Cooling at Existing OnceThrough Facilities. 

Significant studies demonstrate widespread opportunities for treated wastewater to be 

used at power plants. A 2009 NETL study concluded that “[r]eclaimed water (treated municipal 

wastewater) is widely available in communities throughout the United States in sufficient 

volumes and is reliable enough to supply 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 and availability is Vidic (2009), a 445-page, 

multi-year report that painstakingly details the widespread availability and feasibility of using 

reclaimed water at both new and existing coal-burning power plants.606 For existing plants in 

particular, Vidic showed that 75 percent of existing coal-burning power plants are within 25 

miles of a wastewater treatment plant that could provide water for cooling. The Vidic report, 

conducted for the Department of Energy, further concluded that “finding alternative water 

resources to replace freshwater demand for cooling purposes is inevitable and urgent.” 

According to DOE, the results from the Vidic study indicate it is feasible 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 sources 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. 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/coalpower/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 Fossil Energy, “Project Fact Sheet” (Exh. 123) also available at

http://fossil.energy.gov/fred/factsheet.jsp?doc=6251&projtitle=Use%20of%20Treated%20Municipal%20Wastewate

r%20as%20Power%20Plant%20Cooling%20System%20Makeup%20Water:%20Tertiary%20Treatment%20versus

%20Expanded%20Chemical%20Regimen%20for%20Recirculating%20Water%20Quality%20Management. 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 at 
113 

Expected to be completed in the fall of 2011, the primary goal of the project is “to 

reduce/minimize high-quality freshwater withdrawal and consumption by creating an internetbased, GIS catalog of non-traditional 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 affecting local communities or the environment.”609 

Preliminary data available on the internet indicate that a significant number of existing, coalfired power plants could benefit from the use of nearby non-traditional 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, “many facilities substantially outpace the 

volume of water available to them from alternate 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 day of wastewater flow 

available in eleven of the thirteen original 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 had 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. 

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/technologies/coalpower/ewr/water/ppmgmt/wastewater.html. 

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 cooling. All of these studies demonstrate sufficient 

availability of reclaimed water for use as cooling water. 

Second, EPA improperly characterizes the results 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-cycle 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 evaluated whether a sufficient volume of reclaimed 

water existed to meet the cooling needs at existing once-through facilities. This assessment was 

made assuming the facilities would maintain their once-through cooling configuration, not the 

closed-cycle needs of the upgrades they planned to undertake at these facilities. This is 

significant because, as the report states, the projected 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 water is not a feasible option 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 cooling, with the available volume often orders of magnitude greater 

than needed.615 

Furthermore, even in areas where the once-through cooling water needs of facilities could 

not be met entirely by reclaimed sources, these reclaimed water sources oftentimes can provide a 

substantial portion, even a majority, of the cooling water needed under a once-through cooling 

configuration. For EPA to discount using reclaimed water as a cooling water source in these 

instances misses an important opportunity to conserve 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 viewed as an all-or-nothing proposition, such 

that if there is not sufficient reclaimed water available for all cooling needs then reclaimed water 

cannot and should not be used at all. Even a 30 percent reduction in freshwater withdrawals for 

thermoelectric power generation using once-through cooling would result 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. 617 USGS (1998) at 58. 
115 

d. The Use of Reclaimed Water for Closed-Cycle Cooling Addresses Any 

Consumption Issues. 

Numerous studies address the consumptive versus 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 from Mielke et al. (2010),619 shows estimated once-through fossil 

plant water consumption levels of 300 gal/MWh versus closed-loop water consumption levels of 

480 gal/MWh. For nuclear plants, the corresponding 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 minor relative to available 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 withdrawn. Therefore, because the 

EPA reports that approximately 200 BGD of cooling water is withdrawn 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 cooling 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 estimates of water intensity of energyresource extraction, processing to fuels, 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. 620 NETL notes that its original analysis (relied on by Mielke) did not account for downstream evaporative losses, 

which are not insignificant. NETL 2010 at 21. Interestingly, 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 cooling 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 cooling would increase consumption to 1 BGD on the 

low end (no change in consumption) and 5.8 BGD on the high end (assuming 80 percent increase 

in consumption). The amount of reclaimed water 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 freshwater consumption will 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 cooling water per year, if all of these facilities 

were to convert to closed-cycle wet cooling, 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 consumption for closed-cycle cooling between 

approximately 2 to 8.8 BGD. Given the approximately 41 BGD of wastewater 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 Emulate 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 allowed “when it is demonstrated that the use of 

other water supply sources or other 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 estimates of water intensity of energyresource extraction, processing to fuels, 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/adopted_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 water for closed-cycle cooling makeup water.628 

 Today, California Water Code § 13552.6 codifies the importance of using reclaimed 

water and declares the use of potable domestic water for closed-cycle cooling to be a waste or 

unreasonable use of water if safe and sufficient reclaimed water is available. 

 Unfortunately, EPA’s Proposed Rule takes a very different approach by essentially 

elevating the use of inland waters over reclaimed water and 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 environmental impact and consumption. Like 

California did more than three decades ago, EPA should at the very least establish a preference 

for the use of reclaimed water for power plant cooling in areas at risk 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 encourage 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 used 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 with power plants. 

EPA has acknowledged that: “[f]rom a biological perspective, the effect of intake 

structures on impingement and entrainment does 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 entrainment and impingement and propose to co-locate 

with a power plant in order to utilize their existing intake structure for the desalination process 

feed water. The exclusion of seawater used for 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 mortality 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, thus providing no protection 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 California 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 Section 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 would 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 for drinking). Consequently, 

both the first user and second user (the power plant and the desalination facility) 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 for this broad exemption. Regardless of 

whether a desalination plant also uses it, if water 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 cooling water intakes is achieved, the proposed 

language in the regulations must be re-written to eliminate any and 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-Flow 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 certain elements of the 2004 rule that were 

particularly challenging or time-consuming to implement.”631 The very first of these 

“challenging” elements mentioned by EPA is the 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 configurations 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 point from which the reductions are measured. 

Second, a calculation baseline is often used to compare two different technologies that protect 

fish in different ways. For example, regulatory agencies often employ 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 the Pacific Ocean via the Encina Power Station Discharge 

Channel 1 (2009) (Exh. 132) also available at 

http://www.waterboards.ca.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 component of the calculation baseline 

should be a “full-flow” baseline, i.e., a baseline that assumes, contrary 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 reductions at all. More important, using a “full-flow” calculation 

baseline tends to overestimate the effects of alternatives 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 time entraining only 1.02 billion organisms per year under its actual 

operating conditions. Thus, the actual flow baseline (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 figure, 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 effective (and therefore identical in effectiveness to 

closed-cycle cooling) and a suite of technologies and operational measures that reduce 

entrainment to 160 million organisms per year would be deemed to be 85.5 percent effective 

(and therefore “equivalent” to closed-cycle cooling using a 10 percent margin of error that DEC 

imitated from EPA’s Phase I rule). The full-flow 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 million 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 baseline are further apart, such as with the Bowline Point Generating 

Station in New York, now operating below 10% of capacity,

634 the prejudice will be even 

greater. Clearly, EPA cannot intend that this gross distortion 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 standards expressed in terms of a percentage 

reduction and does not include a definition of calculation baseline. But by proposing a sitespecific, case-by-case approach to BTA determinations for entrainment, EPA is requiring 

regulators to compare the performance of different 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 BTA technologies. Likewise, to the extent that facilities propose 

impingement reduction technologies that are “comparable” in performance 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 without defining the term or otherwise providing 

guidance on how they should be defined and applied. The result is therefore even worse than the 

Phase II rule in this regard because EPA is punting to the states, with less guidance and direction 

than before, the primary problem it had identified from its implementation experience under the 

2004 Phase II rule. 

 Accordingly, EPA should either include a provision in the rule prohibiting states and 

EPA regional offices from using any calculation baseline in implementing the rule, or if EPA 

allows use of calculation baselines then EPA should make clear in the rule that a “full-flow” 

calculation baseline is impermissible, 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 rare instance where there have been reductions in flow actually 

implemented to protect fish (and only to that extent). Most importantly, because power plants 

never operate 100 percent of the time, a full-flow 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 conflict with a safety requirement established by the [Nuclear 

Regulatory] Commission [NRC].”636 However, OMB broadened it to also cover impingement 

mortality requirements and deleted EPA’s clarifying statement that the exception was narrow and 

that “[t]echnical infeasibility, and not cost, is the only consideration 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 exception 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-through cooling have two 

completely separate and independent cooling systems; one system to cool the steam used to 

generate electricity, which is the subject of this rulemaking, and a second “service water” system 

which provides water to cool plant buildings and equipment, and emergency cooling water to 

cool the reactors, spent fuel pools and other critical plant 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 considered “safety-related.” The two systems are 

completely separate in that they rely on different 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 regulations adequately address proposed changes to a 

nuclear facility, rendering this additional process unnecessary.639 

 

Furthermore, by creating a unique process for 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 EPA and implemented by the Director, would not 

reduce safety margins at an operating nuclear plant. Such review should occur after the BTA 

requirements have been specified, not before. 

 9. EPA Should Require Interim Measures to Reduce Cooling Water 

 Flow Until Long Term Compliance Solutions Are in Place. 

The proposed rule does not set a firm deadline for entrainment compliance and gives 

facilities up to eight years to comply 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 adverse 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 technologies and operational changes that reduce the 

flow of cooling water, particularly at peak spawning 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 cooling water pumps running. And facilities can 

typically schedule regular maintenance outages for peak spawning periods. These kinds of 

operational measures should be within reach of most facilities and there is no reason why they 

should not be required immediately while long-term BTA requirements 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 that 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 could compromise the seaworthiness of drilling rigs, liquefied 

natural gas terminals, and fishing boats. As the rule is drafted, however, it is unclear whether all 

seafood processing facilities are exempted, including land based facilities, or whether only 

vessels are exempted. The preamble 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 are existing facilities as defined in § 125.92.” By 

not prefacing “seafood processing facilities” with the word “offshore,” some might read 

ambiguity where EPA intended none. Therefore, EPA should include the word “offshore” as a 

preface to “seafood processing 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) permits EPA to consider costs in relation to 

benefits in choosing a regulatory option and establishing nationwide performance standards for 

the Section 316(b) existing facilities rule, the statute restricts EPA’s investigation of, and 

reliance upon, such comparisons. Congress intended EPA to consider environmental benefits in 

non-monetized terms, avoid lengthy cost-benefit 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 extreme disparities between 

costs and benefits, for example through EPA’s traditional 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 monetizing all the benefits of minimizing the adverse 

impacts of cooling water intake structures, which 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 consideration of the rule’s costs and benefits in nonmonetized terms, EPA attempted to monetize them. 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-benefit reviews as well. EPA’s efforts to conduct a fine-grained 

and monetized cost-benefit analysis have spanned several years and included multiple rounds of 

data gathering, volumes of economic analysis, extensive 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 decision, it seems that this fine-grained, time 

intensive, and costly approach to cost-benefit analysis provides relatively little useful 

information. By its own admission, the agency still cannot adequately monetize the benefits of 

this rule and cannot rely on the analysis it has performed to date in determining the best 

technology available. After years of analysis, during 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 fish 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 time 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 section summarizes key points from a more extensive 

environmental economic report prepared by two of Stockholm Environment Institute’s senior 

economists, Frank Ackerman and Elizabeth Stanton. The full Stockholm Environment Institute 

(SEI) report is attached to these comments as Appendix A. As the attached report explains in 

more detail, the errors in EPA’s analysis are significant enough that for the agency to rely on this 

faulty cost-benefit analysis would be arbitrary, capricious, and 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 

organisms641 that are now being killed by cooling water intake structures but will be saved by the 

rule. Then, EPA faces the challenge of attaching monetary values to those physical impacts. 

The agency has made significant errors at both stages. 

Making only partial and conservative 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 estimates 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 based on the use of closed cycle 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 Underestimated the Number of Fish Killed by 

Cooling Water Intake Structures. 

 EPA appears to have significantly underestimated the baseline number of fish killed by 

cooling water intake structures. Errors in this baseline calculation inevitably propagate through 

the rest of EPA’s cost-benefit analysis, thereby 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 estimates that all of the power plants 

and manufacturing facilities in the Great Lakes combined impinge and entrain less than 10,000 

individual walleye: eggs, larvae, 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 report 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 walleye larvae and 499,000 juveniles in a single 

year.645 There is no way to square EPA’s estimate of less than 10,000 individual walleye deaths 

in all of the Great Lakes with the plant’s evidence-based conclusion that it killed 7.5 million. 

 Nor are EPA’s walleye numbers the only dubious statistics in its Great Lakes analysis. 

EPA estimates that 221 million individual freshwater 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 entire 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 Great Lakes region. The agency should 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/permits/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/permits/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/permits/bayshore_IE_data_collection.pdf. 
125 

deeply problematic because the number of fish killed by cooling water intake structures is the 

fundamental basis of all of EPA’s benefit calculations. EPA’s underestimate of mortality – a 

thousand-fold undercounting of some species – undermines the validity of its entire cost-benefit 

analysis. 

b. EPA Cannot Accurately Monetize the Benefits of Saving Non-Market 

Fish, Other Aquatic Organisms, and Ecosystems. 

 The problems with EPA’s cost-benefit analysis do not end with 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 identified in the SEI report are summarized below. 

 Even the most straightforward of the non-market calculations – estimating the direct use 

values of fish as objects of sport – has proved quite challenging. EPA seems to have severely 

underestimated recreational fishing 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 appear to match other estimates in the economic 

literature, which are over twenty dollars per fish, nor does it accord with the perception of 

companies in the sportfishing industry.650 

 Beyond direct use values, the problems escalate dramatically. To begin with, EPA 

admits that entire and substantial 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 the North and Mid-Atlantic Regions. And EPA has failed to capture 

the indirect use benefits of fish and healthier 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 regions, 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 would place no value on saving endangered sea 

turtles in Florida, and that Floridians, in turn, 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 the 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 economist in the field who EPA relies on 

and cites for other purposes, concluded that “on average, measuring only the benefits at the state 

level would result in just 13 percent of the national total public good benefits.”655

 EPA also failed to take into account the particular value that people attach to protecting 

threatened and endangered species. EPA notes that cooling water intakes have significant 

impacts on threatened and endangered species, but claims an inability to come up with any 

reasonable estimates for the value of these impacts. 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 need to be refined before 

further use. EPA’s model calculations of the non-use value of threatened and endangered 

species – which are not included in the final cost-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 assumed percentage losses for different species 

without providing any basis for its chosen percentages (all of which were very low). Second, 

EPA’s analysis simply will not be credible until 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 severely 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, accounts for the substantial value that people 

place on environmental preservation (even from a distance), and corrects the serious deficiencies 

in its approach to valuing threatened and endangered species, the agency will continue to 

dramatically undervalue the benefits of a uniform national standard based on closed-cycle 

cooling. The flaws in EPA’s present analysis, both in its quantification and monetization of the 

rule’s benefits, are sufficiently large that to rely 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 overestimates 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 figures provided by the Electric Power Research 

Institute (EPRI), which is an arm of the electric power industry being regulated 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 engineering and cost report 

prepared by Powers Engineering. The full report is attached to this comment letter as Appendix 

D. As the attached report explains in more detail: 

a. EPA Has Significantly Over-Estimated 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 thoroughly explained and corroborated with actual fossil and nuclear 

plant retrofit cost data. EPA concluded that its model generates accurate and conservative 

estimates for closed-cycle cooling retrofits at both conventional 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 the 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 the 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 EPRI’s cost estimates are also higher than those of 

SPX, the largest manufacturer of power plant 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 model requires substantial changes: nuclear 

plant retrofit costs, and nuclear 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 conservative661 cost estimate of $27 million with EPRI’s $53 

 657 See Powers Engineering comments on EPA 316(b) March 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 that actual costs are likely to be lower. 
128 

million estimate. EPA is wrong to claim that these 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 technology, but by whether site 

conditions make a retrofit “easy”, “average,” or “difficult.” 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 cooling 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 plant 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 plants, 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 was 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 manufacturer’s estimate, and did 

not take into account the 0.5 percent efficiency improvement that typically results from a 

condenser upgrade (which would considerably offset efficiency losses associated with 

installation of closed-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 retrofit 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 estimates 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 lower 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 cooling 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 retrofitting a nuclear power plant.667 

Using these cost multipliers, EPA estimates that the same retrofit that costs $27 million at 

a conventional power plant will cost $22 million more at a nuclear plant. And it is on the basis 

of this inflated $49 million estimate that EPA claims 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 nuclear plants, just as there was no record evidence to support this 

practice when EPA began it in 2002. Indeed, as the attached report shows, the record contains 

evidence that partially contradicts EPA’s stance: statements by nuclear plant operators and 

regulators indicating that construction 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 efficiency penalty and closed-cycle cooling 

parasitic fan and pump loads for nuclear and fossil plants are unreasonably high. The attached 

report shows that these overestimates again result from EPA’s adoption of EPRI’s unsupported 

figures. EPRI’s figures contradict 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 model, 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 attached 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 model’s estimates of energy demand and efficiency penalties and not 

rely on the EPRI figures. 

b. EPA Overestimated the Downtime (and Attendant Costs) Required for 

Closed-Cycle Cooling Retrofits at Nuclear Plants. 

In 2002, EPA estimated that if facilities are given a period of several years to come into 

compliance, as they are under the Proposed Rule, then closed-cycle conversions at both fossil 

 667 See Powers Report. 

668 See Powers Report. (Section II.D) 669 With respect to the turbine efficiency penalty, part of the overestimate arises 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 considerable support for this position on the record 

based on its experience at several power plants.671

EPA later increased its estimate from two months 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 increase in the outage time estimate was based on a single weak 

data point: a letter from a planner at the Palisades II nuclear plant, 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, information from better-documented retrofits and 

other complicated construction projects at nuclear plants completed within the past ten years 

strongly supports EPA’s original view that two months of additional downtime is a reasonable 

and conservative estimate (i.e., actual costs are likely to be lower). EPA pointed out in the April 

2002 TDD that four surface condensers at an Arkansas nuclear plant were upgraded during two 

days of downtime. More complicated construction projects at nuclear power plants, such as 

plant replacements, have been completed in much less than seven months. For example, the 

2008 replacement of four steam generators at the 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 engineering 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 water 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-cycle cooling hook-up requires 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 all, 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 technologies that deliver the greatest reductions in entrainment, 

impingement, and thermal pollution. This kind of practical cost-benefit analysis would lead EPA 

to set a uniform national standard based on the performance 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, the result should be the same. The economic analysis performed by 

SEI that is attached to this comment shows that, after correcting significant errors in EPA’s costbenefit analysis, the benefits of a closed-cycle cooling standard actually exceed its costs. 675 

Thus, the benefits of protecting fish and aquatic 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 envisioned, it would have 

proposed a uniform national entrainment standard based on the use of the best technology 

available: closed-cycle cooling. The Clean Water 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 closed-cycle cooling standard are not wholly disproportionate to its 

benefits. 

 But EPA decided to compare costs and benefits more extensively and probingly than 

Congress deemed appropriate in setting technology-based standards. Despite a determined and 

good faith effort, EPA produced a cost-benefit analysis that overlooks many benefit categories 

entirely and underestimates others, both physically and monetarily. This is not surprising. 

Through 40 years of failed environmental regulation, 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 enact effective environmental regulations at all. That is why 

Congress prohibited EPA from making cost-benefit comparisons a primary consideration in 

setting the best technology 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 commercially but the benefits cannot 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 longstanding “wholly disproportionate” 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 costs of this rule are reasonable and proportionate to its benefits 

and, indeed, that the rule’s benefits exceed its costs. 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 benefits analysis are described above in Section 

III.F.2 of these comments and in the report of the 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 benefits 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. Specifically, the Stockholm 

Environment Institute: 

• applied EPA’s habitat area restoration method (discussed 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 benefits to account for the significant 

discrepancies between EPA’s estimates and others. 

 Together, these basic modifications result in benefits estimates that are greater than or 

approach EPA’s cost estimates for all of the 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 both the costs and the benefits 

estimates leads to the conclusion that the benefits of regulation are greater than the costs for 

every option that EPA considered. EPA should correct 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 Assessment 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 significantly 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 (fossil or nuclear), %: 0.30 – 0.40 

Average fan parasitic energy penalty (fossil or nuclear), %: 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 estimates, and assuming some variation in design 

approach temperatures and a mix of wet and plume-abated towers, Powers Engineering 

concludes that the annualized national pre-tax compliance costs for power plants under Option 2 

and Option 3 would be $3,029 million and $3,104 million 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 lower) because they both use total current nationwide design intake 

flow (DIF) to calculate the capital cost of cooling tower retrofits 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 retrofit 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 coal 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 utilities throughout the country.680 EPA should factor these 

retirements into its cost analysis because plants that 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 Assessment Should Adhere to Precise 

Regulatory Requirements Established by EPA. 

 As explained previously, requiring states to conduct site-specific cost-benefit assessments 

violates the Clean Water Act, offends the Congressional intent behind the Act, and is arbitrary, 

capricious, and an abuse of EPA’s limited discretion to consider the costs and benefits of setting 

a uniform, national standard. State agencies should not be authorized to conduct any costbenefit analysis in the process of issuing NPDES permits, because they simply cannot perform or 

meaningfully review such analysis in a manner that 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 Institute explains in greater detail, EPA should 

start by making four important changes to the site-specific cost-benefit analysis process 

envisioned in the Proposed Rule. 

 First, EPA should clarify how costs and benefits are to be compared. EPA’s novel 

formulation in the Section 316(b) context that benefits should “justify” the costs of entrainment 

controls is unclear and some states may interpret it as a departure from the “wholly 

disproportionate” standard. A clear interpretive standard set by federal regulation would 

prevent states from making cost-benefit comparisons 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 considerations in a manner that is inconsistent with 

the limits that Congress placed on the use of cost-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 contractors are the sole 

arbiters of the technical adequacy of all cost-benefit analyses. The integrity of the analytical 

process can only be assured if the State, not the applicant, selects the contractors and oversees 

the studies. 

 Third, applicants require additional guidance on how to conduct complex cost-benefit 

analyses. Therefore, EPA should restore guidance statements that OMB had deleted, including 

EPA’s explanation of the difference between the social 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 EPA’s guidance on discount rates, which called for 

facilities to use a “social discount rate . . . reflecting society’s rate of time preference as opposed 

to a facility’s cost of capital,” and suggested 3%, as per existing OMB guidance.681 

 Finally, EPA should provide standardized default values and valuation methodologies for 

costs of control technologies, and for all major benefits categories, suitable for use in local 

analyses. As the attached SEI report explains in more detail, EPA should require: 

• Estimates of national, not regional, non-use values – economic studies have repeatedly 

shown that people place a high value on preserving 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 threatened and endangered 

species is included in the benefits analysis – Americans place a particularly high value on 

protecting and preserving threatened and endangered species. This additional value must 

be reflected in the benefits analysis. 

• Quantified uncertainty estimates – EPA should require that all cost-benefit studies 

include a quantitative measure of the uncertainty 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 protecting 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 individuals in an endangered population 

can be hugely significant – it may be the difference between life and extinction for that 

species. Where threatened or endangered species, or species of concern are involved, 

EPA should require that applicants do their utmost to quantify the uncertainties in their 

 681 See Redlined Version of Proposed Rule, p. 340. 
135 

benefits estimate, and then base their benefits 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 EPA’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 significantly 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 allow applicants to present non-use values 

for fish and aquatic ecosystems that are lower than those found in EPA’s forthcoming 

study. 

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. 

Although EPA is promulgating this proposed rule under the Clean Water Act, the agency 

has a separate duty to comply with the Endangered Species Act. Under that Act, EPA has a 

mandatory duty “to use . . . all methods which are 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 authorizes, funds, or carries out “is not likely to jeopardize the continued 

existence of any endangered or threatened species or result in the destruction or adverse 

modification of [critical] habitat of such species.”683 

To date, EPA has not consulted the National Marine Fisheries Service (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 ecological impacts of this rule and the advisability 

of reasonable and prudent alternatives to EPA’s Proposed Rule. Reasonable and prudent 

alternatives to EPA’s proposed action exist, including the other regulatory options under 

consideration. 

In promulgating this rule, EPA will be taking 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 continue to take endangered species, and to adversely 

modify habitat that is critical to multiple endangered species, on the 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 States 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 intakes. Where an EPA action directly continues a 

situation in which endangered species are being taken, EPA must first consult the Secretary of 

Interior, Commerce, or Agriculture as appropriate.685 

EPA has evidence that cooling water intake structures take endangered and threatened 

species of fish. And the Proposed Rule authorizes 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 degradation 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 conservation 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 Wildlife 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 regulation without first insuring that it has met its particular duties 

under these acts, and its general duty to protect and conserve wildlife – 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 monitoring 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 facilities to limit intake volume to a level 

commensurate with closed-cycle cooling (Track I),698 while also allowing those facilities to use 

technologies other than closed-cycle 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 assessing 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 levels achieved under Track I [i.e., closed-cycle 

cooling].701

In ruling on the issue, the Second Circuit stated that “impingement and entrainment ... 

cannot always be measured directly and with mathematical precision, the use of any alternative 

technologies would require the EPA to make a judgment 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 willing to tolerate in 

measuring compliance and what it considers a reasonable 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 benchmark 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 percent, 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 proposes a suite of technologies and operational 

measures as equivalent to closed-cycle cooling, it must submit data showing that the reductions 

are expected to be 100 percent of the level that would be achieved 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 the 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 the 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 percent” 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 violating the regulations. Accordingly, 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 suitability 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 and 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 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. 

 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 provided a numbered list of 28 “Specific 

Solicitations of Comment and Data,” which summarized and pulled together in one place many 

of the requests for comment that were otherwise 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 revised 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. This would mean that a facility that has 

permanently taken a pump out of service or has flow limited by piping 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 impingement and entrainment mortality reduction 

“credit” for fictional flow reductions (see discussion above regarding full flow baseline) DIF 

should reflect the maximum amount of water than can be withdrawn by the plant.

2. National BTA Categorical Standards for 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 require that the BTA 

for existing offshore oil and gas extraction facilities and seafood processing facilities be 

established by NPDES permit directors on a case-by-case basis using best professional 

judgment. See Section V.H707

Response: 

 Like all other facilities, existing offshore facilities should be subject 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 unacceptable changes in the envelope of existing platforms, drilling rigs, 

mobile offshore drilling units (MODUs), seafood processing vessels (SPVs), and similar 

facilities as the technologies would project out from the hull, potentially decrease the 

seaworthiness, and potentially interfere with 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 standard is technically 

feasible, it considered (1) installation of variable speed pumps that would better match cooling 

water intake with process needs, and (2) operational changes, such as limiting or delaying 

activities that require cooling water intake while a vessel is in near-shore 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 concluded that the Phase II rule costs 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 today, EPA concluded that a specific costcost variance is not necessary because the 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 today’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 installing screens at some facilities. As EPA 

recognizes that screens are less effective than closed-cycle cooling, the screens-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 will be between a facility’s cost of implementing closed-cycle 

cooling and EPA’s estimate of the average cost of such conversions nationwide. 

 As noted above, and as explained further in the attached report 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 variance should include only 

capital expenditures, operation and maintenance, and energy penalty, not speculative, indirect 

add-on costs. 

 The following sections of this comment letter 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 Categorical 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 common species or the species of concern most 

frequently identified in available studies. For purposes of today’s national rulemaking, 

entrainment is still presumed to lead to 100 percent mortality. See Section VI. Today’s 

proposed rule would allow facilities to demonstrate, 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 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 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 Mortality Compliance Requirements. EPA requests 

comment and data on a provision that would require 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 measures including a fish 

handling and return system. EPA is considering this provision because the Agency is 

concerned that some facilities that comply with the impingement 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 their intake velocity 

to 0.5 ft/s and should additionally require those facilities 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 handling and return system because reducing intake 

velocity alone is not sufficient 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 the Term “Species of Concern” and Restore 

Additional Protections for These Species; 

• III.E.2 - EPA Should Prevent Directors from Excluding 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 Applicable 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 technologies, including location of cooling water 

intakes that impinge relatively few fish or other approaches that achieve impingement 

mortality reductions equivalent to the proposed performance standards. For example, if 

EPA were to consider number of fish killed as an alternative, it might statistically model 

the data or select the minimum observed value. 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. Instead, EPA should set a nationally 

uniform technology standard that minimizes both 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 standards on the basis that the source waters are 

already “degraded.” 

 The following sections of this comment letter 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 Impingement Mortality Reduction Requirement Is 

Problematic In Numerous Respects. 

• Appendix B - Comments of Dr. Peter Henderson and Richard Seaby, PISCES Conservation, 

Ltd. 

7. Flow Basis for Option. EPA requests comment on both the threshold 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 threshold rather than an AIF threshold. A DIF 

threshold is simpler to establish and the administrative burden on states of vetting claims from 

applicants is already considerable; EPA should not increase that burden. 

 Also, demand for energy has declined somewhat during the current economic downturn. 

A facility may currently have a historically 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. Once the NPDES permit is issued it will not be 

revised, and with many states facing a NPDES permitting 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 threshold may go uncorrected for ten years or longer.

 If EPA is concerned about the costs or feasibility 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 should be set on a clear 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 support the premise that the difference in the 

density of organisms between marine and fresh waters justifies different standards. More 

specifically, the average density 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 that found in some marine waters. EPA also believes the 

different reproduction strategies of freshwater versus marine species make broad 

characterizations regarding the density less valid a rationale for establishing different 

standards for minimizing adverse environmental impact. EPA requests comment on its 

proposal not to differentiate requirements by water body type.714

Response: 

 EPA has provided a firm environmental basis for not distinguishing between facilities 

situated on different waters of the United States: the variation in organism densities and 

reproduction strategies within marine and freshwater ecosystems is sufficiently high that no 

category of waterbodies can be singled out for different treatment. 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 closed-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 “that the ‘design’ of intake structures be regulated directly, 

based on the best technology available, and without resort in the first instance to water quality 

measurements.”715 Closed-cycle cooling and a velocity limit of 0.5 ft/s are the best technologies 

available to minimize adverse environmental impacts in all waters of the United States. 

Congress intended that the best technologies available be used, 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 aquatic populations in a particular 

water body. 

 Establishing different standards for different 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 dumping grounds. This runs directly contrary to the Clean Water Act’s 

goals of restoring and maintaining aquatic ecosystems, and 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 Fundamentally Restructured U.S. Water Pollution 

Regulation by Replacing Ineffectual Site-Specific 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 significant 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 percent 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 relatively 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 rate 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 reduction 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 through closed-cycle cooling (e.g., through 

seasonal flow reductions, unit retirements, and other flow reductions) would have to 

demonstrate total flow reductions approximating 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 saltwater flow reduction metrics that EPA has 

proposed 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 rule, these metrics should apply 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 closed-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 approach reasonably allows facilities to get credit for flow 

reductions attributable to unit closures, but also requires such facilities to make future 

progress to ensure its operations reflect best available entrainment 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 construction of cooling tower, as well as data for 

determining alternative thresholds. 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 cooling 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 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 towers, not the 

much more space efficient back-to-back cooling tower configuration. A back-to-back cooling 

tower configuration requires about 17 percent of the space needed for two in-line towers for the 

same cooling capacity, assuming the spacing recommended for parallel banks of in-line towers. 

Because cooling towers can be installed in a back-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 towers 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 Cooling 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 proposed 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 comment, provide for public participation, and 

issue final permit conditions. 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 submittal 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 withdrawn Phase II rule and 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 impingement compliance should be 

shortened to three years or less. Further, completion of cooling tower retrofits should be required 

no later than 36 months after approval of the application at fossil 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 letter 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 time 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 impingement as the national standard. 

 Measuring latent mortality is deeply problematic. 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 sampling plan between sites.”724 That variability, along with the 

complexity of the biological issues involved, will inevitably lead to disputes, delays and 

uncertainty. Also, latent mortality may occur after more than 48 hours. 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. As the attached biological report from 

PISCES Conservation explains, latent impingement mortality has been demonstrated to occur 96 

hours after the impingement event. Thus, if latent mortality evaluations 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 allowing unlimited impingement but attempting to reduce 

the mortality rate. EPA has already concluded that “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 percent of intake structures presently meet the 

0.5 ft/s velocity limit but also that many existing facilities can meet it.726 

 The following sections of this comment letter 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 Velocity Limitation as the Primary National 

Standard Is Illegal. 

o III.C.3 - The 12 Percent/31 Percent Impingement Mortality Reduction Requirement Is 

Problematic In Numerous Respects. 

• Appendix B - Comments of Dr. Peter Henderson and Richard Seaby, PISCES Conservation, 

Ltd. 

15. Counting Impinged Organisms With the ‘‘Hypothetical Net.’’ EPA requests 

comment on the ‘‘hypothetical net’’ approach to measuring impingement mortality. 

Facilities could apply a ‘‘hypothetical 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 diverts 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 alternative 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 compliance option and set a 0.5 ft/s velocity limit to control impingement 

as the national standard. Furthermore, as the PISCES 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 particular species (long thin forms can 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 debris already on the mesh, among other factors. 

16. Incentives for Reducing I&E by Reducing Water Withdrawals. EPA requests 

comment on incentives or alternative requirements for exceptionally energy efficient or 

water efficient facilities. See Section III. EPA also solicits comment on the regulatory 

provisions that encourage the use of recycled water as cooling water, including 

reclaimed water from wastewater treatment plants and process water from 

manufacturing facilities, EPA solicits comment on other incentives to encourage use of 

recycled water to supplement or replace marine, estuarine, or freshwater intakes.728

Response: 

 In principle, the commenters support efforts 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 water 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 requiring that all facilities 

demonstrate that they have made use of all reasonably available reclaimed water for cooling 

before any withdrawal of water 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 for desalination. In particular, 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 used in a manufacturing process either before or, more likely, after it is 

used for cooling purposes. 

 The problem arises because new desalination plants in California have received NPDES 

permits under the presumption that they will cause 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 employ 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 Section 316(b) compliance if it gives its discharge 

water to a desalination plant. Consequently, in California (and soon 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 entrainment and impingement from cooling water 

intakes is achieved, the proposed language in the regulations must be re-written to eliminate any 

and 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. 

 The following sections of this comment letter 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 Freshwater 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-cycle cooling as BTA. EPA specifically requests 

comment on the regulatory options 2 and 3 included 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 such 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 standard 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 plants 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 the Pacific Ocean via the Encina 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 hyperbolic claims (many of which EPA uncritically accepted), Option 3 

would not cause electric reliability problems, would not increase electricity prices, and would not 

cause any significant adverse environmental effects. Further, EPA’s economic findings are 

unambiguous: the stronger the regulation, the greater the boost to the economy and job creation. 

At either discount rate EPA 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 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-creating rule that will improve the 

economy. 

 In its cost-benefit analysis, EPA was unable to quantify whole categories of benefits, and 

even where EPA was able to quantify benefits, 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 disproportionate to the benefits. 

 The following sections of this comment letter are most relevant to this request for 

comment: 

• I.B.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; 

• I.C – Regulatory Background: For Forty Years, Regulation on a Case-by-Case Site-Specific 

Basis Has Caused Bureaucratic Paralysis and 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 Congress’s Clearly Expressed Intent; 

• III.B – EPA Should Establish a National 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 entrapment of fish and shellfish. EPA believes those facilities 

with an offshore velocity cap leading to a forebay but without a fish return system would 

incur costs to meet the proposed requirements for entrapment. For facilities 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 second intake velocity but have a cooling water 
152 

intake system that may cause entrapment. EPA solicits comment and data on the types 

and numbers of facilities with a cooling water 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 construction 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 whether 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 conducted pursuant to the rule, EPA should specify 

minimum monitoring requirements that meet the expectations it laid out in the preamble, rather 

than leaving monitoring terms to be determined by the Director. It is inefficient 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 letter are most relevant to this request for 

comment: 

• III.E.4 - EPA Should Specify Minimum Monitoring Requirements.

• Appendix B - Comments of Dr. Peter Henderson 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 facilities but recognize the site-specific nature of 

EM by allowing seasonal operation of cooling 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 similar provision for new units at existing 

facilities, which are required to achieve I&E reductions commensurate with closed-cycle 

cooling in the proposed rule.

734

Response: 

Closed-cycle cooling should operated year-round because of the potential to entrain and 

impinge aquatic organisms well beyond “peak entrainment season.” To the extent that a facility 

operating closed-cycle cooling nevertheless entrains large numbers of organisms during peak 

entrainment season, additional fish protective measures should be required, 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 definition of new unit, and whether it should 

be expanded to include other units such as those 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-specific entrainment BTA determination 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 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 provisions such that only “new units at existing facilities,” a very narrowly-defined class of 

entities, now have to meet the closed-cycle cooling standards. 

 Neither the rule, nor the preamble, provide any justification for not treating replaced, 

repowered, or rebuilt facilities as new units. The reasons that EPA gave for strictly regulating 

additional units apply equally to total replacements and repowerings736 – 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 demolishes 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 cooling standard is built behind the cooling water 

intake structure. 

 EPA’s technical experts agreed that the reasons for considering an additional unit to be a 

new unit apply equally to replacements and repowerings, 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 regulating 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 inconsistent with Congress’s intent to control mortality at cooling water 

intakes. 

 The following sections of this comment letter are most relevant to EPA’s request for 

comments: 

• II.D.3 - OMB Determined that Replacements/Repowerings Are Not New Units and Deleted 

EPA’s Contrary Statements and Rationale. 

• III.D - All Repowered, Replaced, or Rebuilt Facilities 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 guiding the evaluation of 

closed-cycle cooling as BTA for EM. EPA further solicits comment on additional criteria 

that EPA should address, and whether such criteria should be developed in the regulation 

or provided in guidance.737

Response: 

 State permitting directors should not be required to evaluate whether closed-cycle cooling 

is the best technology available to minimize entrainment 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. Further, the evidence shows 

that states are incapable of making these determinations 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 discussed 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 the Director and How 

They Are to Be Considered. 

24. Alternative Procedures for Visual or Remote Inspections. EPA requests comment on 

its proposal to permit the Director to establish alternative procedures for conducting 

visual or remote inspections during periods of inclement weather. EPA also requests 

comment on whether the rule should specific minimum frequencies for visual or remote 

 737 76 Fed. Reg. at 22,275 (col. 2). 
155 

inspections, or leave this to the determination of the permitting authority. See Section 

IX.F. 738

Response: 

 EPA should maintain the requirement that cooling water intake structures be inspected at 

least weekly to ensure that any technologies installed to comply with § 125.94 are maintained 

and operated to ensure that they will continue to function as designed. 

25. Threshold for In-Scope Facilities. EPA requests comment on the threshold of DIF 

greater than 2 MGD for identifying facilities in-scope of this rule.739

Response: 

 The 2 MGD DIF threshold is appropriate for defining the universe of facilities within the 

scope of the Clean Water Act. Facilities above this level have an impact on water bodies that is 

more than de minimis and the 2 MGD threshold matches the threshold set in the Phase I rule. If 

EPA is concerned about costs and impacts on small 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 and options for subcategorizing the 

more than 1,200 facilities with cooling water intake structures affected by this rule. But EPA 

should not and cannot set a higher threshold and leave all below-threshold 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 requirements. EPA is particularly interested in the 

burden of application requirements to facilities with DIF < 50 MGD. EPA also requests 

comment on its proposal to limit application requirements for facilities that have already 

installed closed-cycle cooling, or opt to do so without a site-specific assessment of BTA, 

and whether there are additional requirements 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 selecting 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 determination, the studies that EPA is requiring as part of the proposed 

application requirements are necessary and unavoidable. EPA, the 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. Application requirements can be lessened for facilities 

with closed-cycle cooling or those that opt to install closed-cycle cooling. 

27. Comment from State and Local Officials. EPA specifically requests comment on this 

proposed rule from State and local officials. See Section X.E.741

Response: 

As discussed above, many states have previously commented to EPA that they lack the 

resources and expertise to make BTA determinations or conduct cost-benefit analyses on a sitespecific, case-by-case basis in the absence national categorical standards. 

The following sections of this comment letter 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, Litigation 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 Meaningfully 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 rejected this approach because EPA believes 

that facilities can achieve better long-term performance than documented in the data by 

maintaining tight control on their technology and operations and adaptively managing 

the technology to achieve the best possible performance. While EPA has not included any 

additional costs for this adaptive management, 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 recently for the pulp and paper industry category 

(40 CFR 430, promulgated in 1998) and has previously not included a variability factor 

for annual limits. Thus, EPA’s proposed approach to calculating the annual standard for 

mortality impingement is consistent with past practice. EPA requests comment on its 

proposed approach for calculating and implementing the annual standard. This 

technology does not minimize adverse environmental impacts associated with 

entrainment, and does not specifically address impingement mortality of shellfish.742 

Response: 

 As noted above, EPA should not measure impingement mortality as a percentage of 

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 impingement as the 

national standard. Please see the responses above to EPA’s fourteenth and fifteenth requests for 

comments. 

 But it is conceivable that, in the context of a variance from a national impingement 

standard that requires facilities to meet a 0.5 ft/s velocity limit, 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 Section VI.D.1.b. 

Entrainment Controls 

The proposal would require consideration of site-specific entrainment controls for each 

facility above 2 MGD DIF. EPA considered proposing 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 percent reduction in total AEI. EPA has not 

selected this option as the basis for national BTA because EPA believes that some 

facilities may be able to do more to control entrainment and that requiring a structured 

site-specific analysis of candidate BTA technologies for entrainment control will allow 

the Director to determine where it is appropriate to require such controls. However, one 

outcome of the site specific analysis may be that the Director would determine that no 

other technologies beyond impingement control meet the criteria for election as BTA, 

because no other technologies are 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 requirement for a structured site 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 wholesale 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 primary adverse environmental impacts of cooling 

water intake structures are impingement and entrainment. EPA has no authority to require BTA 

for minimizing impingement only and not entrainment. 

 The following sections of this comment letter are most relevant to this request for 

comment: 

• I.A – Factual Background: Once-Through Cooling 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-Through 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 Congress’s Clearly Expressed Intent; 

• III.B – EPA Should Establish a National 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, including 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 given no further consideration. 

EPA also requests comment on whether, if Option 4 were adopted for the final rule, it 

should include uniform national requirements for new units at existing 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 uniform 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 site-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 operate it year-round. This may 

represent an upper-bound cost for those facilities. EPA also assumed that cooling towers 

will be installed at fossil fuel plants within 10 years. EPA is aware that there are other 

possible scenarios for projecting which facilities might be required to install closed-cycle 

cooling or other entrainment mortality technologies as a result of individual BTA 

determinations. Some of these 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 analysis 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 cooling. 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 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 overestimated the costs of closed-cycle cooling by 

approximately 60 percent. 

The following sections of this comment letter are 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 cooling towers to both reduce entrainment mortality 

and to use the resulting lower intake velocity to comply with requirements for 

impingement mortality, the Director may be able to allow 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 established 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 complete 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 compliance by saying that it “does not intend for 

the facility to do nothing to reduce [impingement] until the technologies for [entrainment] have 

been implemented.” All facilities should be able to install closed-cycle 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 longer than usual, the facility should be required to install interim 

measures to reduce impingement. 

From Preamble Section IX.D. What information must I submit 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 approach is not precluded by the 

proposed rule as long as the peer review panel has the background appropriate to 

conduct the combined review and the permitting authority approves. EPA requests 

comment on the peer review requirements and the 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 advocates 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 steady 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 allow facilities to implement technologies other than 

closed-cycle cooling systems that reduce entrainment 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 provision mirrors the Track II provision of 

the Phase I rule, and is intended to provide opportunities for facilities to consider 

technologies such intake relocation or fine mesh screens, or operational measures such 

as the recycle and reuse of cooling 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 percent and achieve only an 89 percent reduction in 

entrainment mortality. 

 The following sections of this comment letter are most relevant to this request for 

comment: 

• III.D.2 – All Repowered, Replaced, or Rebuilt Facilities 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 the Director’s role under today’s proposal?

(4) The Director would review and approve the site-specific impingement mortality plan 

including the duration and frequency of any monitoring beyond the minimum specified by 

the rule, the monitoring location, the organisms 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 review, 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 mortality standard as a compliance option and set a 0.5 ft/s velocity 

limit to control impingement as the national standard. 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 mortality monitoring is required, monitoring plans 

should depend on approval by the Director. Facilities 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 propose 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. Since BTA determinations and compliance with 

 750 76 Fed. Reg. at 22,260 (col. 3). 
162 

BTA standards will be in large part determined through monitoring, sampling and studies, this 

“species of [no] concern” provision would allow states to simply ignore, rather than minimize, 

mortality to certain species. 

 The following sections of this comment letter are most relevant to this request for 

comment: 

• III.E.2. – EPA Should Prevent Directors from Excluding Any Species from the Rule’s Scope. 

(6) The Director would review and approve the site-specific entrainment mortality 

sampling plan for new units at existing facilities (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 which 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, entrainment monitoring plans should also depend on 

approval by the Director. Facilities 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 propose 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. Since BTA determinations and compliance with 

BTA standards will be in large part determined through monitoring, sampling and studies, this 

“species of [no] concern” provision would allow states 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 Excluding 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 Ackerman, Ph.D., and Elizabeth A. Stanton, Ph.D., 

Stockholm Environment Institute-U.S. Center 

Appendix B: Comments of Dr. Peter Henderson and Richard Seaby, PISCES 

Conservation, Ltd. 

Appendix C: Comments of David Schlissel and Anna Sommer, Schlissel Technical 

Consulting 

Appendix D: Comments of William Powers, P.E., Powers Engineering 

Appendix E: Thermoelectric Cooling Constraint Index for 2025 

Appendix F: Projected total water withdrawal as percent of available precipitation in 

2050 

Appendix G: Water Supply Sustainability Index in 2050 with available precipitation 

computed using projected climate change 

Appendix H: Reclaimed Facilities Data 

Appendix I: California Reuse Analysis 
164 

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 Report, Circular 1344 (2009) 

Exhibit 3: State Water Resources Control 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 Demonstration of Impact for the Salem 

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Exhibit 5: New York State Department of Environmental Conservation, Best 

Technology Available (BTA) for Cooling Water Intake Structures, DEC 

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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 Commission relicensing proceeding, In re: 

License Renewal Application Submitted by Entergy Nuclear Indian Point 

2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear 

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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 Species Inhabiting the Hudson River 

Estuary, American Fisheries Society Monograph (1988) 

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Finfish Assemblage of Mt. Hope Bay and Narragansett Bay in Relation to 

Operations at the New England Power Brayton Point Station (1996) 

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Information and I&E Sampling Data (Jan. 2008) 

Exhibit 12: 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 

Exhibit 13: Public Service Commission, Wisconsin 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, Resilience, 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. Bik, 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 

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on Fish Distributions in Barnegat Bay,” 10(3) Bull. Amer. Lit. Soc. 14 

(1977) 

Exhibit 22: M.J. Kennish, “State of the Estuary 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 

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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 

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Exhibit 26: A. Cradic, New Jersey Department of Environmental Protection, Oyster 

Creek Generating Station fined for water violations and fish kills: DEP 

seeks compensation for Natural Resources Damages (December 12, 2002) 

Exhibit 27: Federal Energy 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 Newkirk, 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 Impacts of Climate Change

(2010) 

Exhibit 33: National Energy Technology Laboratory (“NETL”), Estimating 

Freshwater Needs to Meet Future 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. Summers & Robert A. Goldstein, “Water 

Sustainability in the United States and Cooling Water Requirements for 

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Exhibit 37: Union of Concerned Scientists, The Energy-Water Collision: Power and 

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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. Nuclear 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 Technology 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 Capacity of Cooling Water Intake 

Structures for Minimizing Adverse 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 National 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 Library 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 Library 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 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) 

Exhibit 58: Page 798 of Legislative History of the Federal 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 Nuclear 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 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) 
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, “Minimizing 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 Light 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 Protection, Office of Adjudications, 

Application No. 199701876, Applicant’s Post 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, Decision 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 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 State Department 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, Attorney for Entergy, to the Hon. Maria E. 

Villa, Administrative Law Judge, NY DEC (May 17, 2011) 

Exhibit 69: Letter from Joseph M. Reidy, Attorney for Dayton Power & Light to John 

Sadzewicz, Ohio EPA (July 11, 1989) 

Exhibit 70: Letter from William L. Patberg, Attorney for Dayton Power & Light to 

Paul Novak, Ohio EPA (Apr. 9, 2003) 

Exhibit 71: Alden Research Laboratory 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 comments 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 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 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 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) 

Exhibit 77: Dynegy Moss Landing, LLC, State Water Resources Control Board OnceThrough Cooling Water Policy Implementation Plan for the Moss Landing 

Power Plant (Apr. 1, 2011) 

Exhibit 78: E-mail from John Dennis, LADWP to Jonathan Bishop, California State 

Water Resources Control Board (Jul. 22, 2010) 

Exhibit 79: In the Matter of the Natural Resources Defense Council (NRDC), the 

Sierra Club, and the Great Lakes Environmental Law Center (GLELC) on 

the permit issued DTE Energy, Detroit 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 Power & 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 Canal 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 Appeals Board, 1978 EPA App. 

LEXIS 4 (February 20, 1978) 

Exhibit 84: Documentation of Changes Made During Executive Order 12866 OMB 

Review – Cooling Water 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: EPA-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, 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 

 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 Comment 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 Environmental Protection to EPA Proposed Rule 

Comment Clerk re Cooling Water Intake Structures (Existing Facilities) 

(Aug. 8, 2002) 

Exhibit 93: Phase II Comment Letter from Gary 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, Michigan Department of Environmental 

Quality, re 316(b) Burden [DCN 4-0049] (January 24, 2002) 

Exhibit 95: NPDES Permit Expiration 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 York Budget: The 5 Most Painful Cuts,” AOL 

NEWS (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, 

THE ARIZONA REPUBLIC (May 4, 2010) 

Exhibit 101: Juliet Eilperin, EPA budget cuts put states in bind, THE WASHINGTON 

POST (June 20, 2011) 

Exhibit 102: Letter from John V. O’Shea, Executive Director, Atlantic States Marine 

Fisheries Commission to Proposed Rule Comment Clerk, EPA, re Cooling 

Water Intake Structure (Existing Facilities: Phase II) (Aug. 7, 2002) 

Exhibit 103: Letter from Celeste Cantu, Executive 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 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) 

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) Rulemaking” held in Alexandria, VA 

(Oct. 5, 1998) 

Exhibit 106: Nuclear Regulatory Commission, Press Release “Nuclear Regulatory 

Commission, Department of Energy and Nuclear Energy Institute Sponsor 

February Workshop on Extended Operation for Nuclear Power Plants,” 

(December 22, 2010) 
177 

Exhibit 107: Dynegy Moss Landing, LLC, State Water Resources Control Board OnceThrough Cooling Water Policy Implementation Plan for the Moss Landing 

Power Plant (Apr. 1, 2011) 

Exhibit 108: E-mail from John Dennis, LADWP 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. Copeland, Congressional Research Service, EPA’s 

Regulation of Coal-Fired Power: 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 website, Modernizing El Segundo’s Power 

Generating Station 

Exhibit 114: Sejal Choksi “Alternatives to Once-Through 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 Overview of DOE/NETL R&D Efforts

(2009) 

Exhibit 122: Electric Power Research Institute, Use of Alternative 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-Traditional 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 Cooling 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 Anadon, & Venkatesth Narayanamurti, “Water 

Consumption of Energy Resource Extraction, Processing, and Conversion: 

A review of the literature for estimates of water intensity of energyresource extraction, processing to fuels, 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) 

Exhibit 131: California State Water Resources Control Board (SWRCB), Res. No. 75-

058 (June 19, 1975) 

Exhibit 132: 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 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 Project Discharge to the Pacific Ocean 

via the Encina Power Station Discharge Channel (May 13, 2009)