22174 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 122 and 125 

[EPA–HQ–OW–2008–0667, FRL–9289–2] 

RIN 2040–AE95 

National Pollutant Discharge 

Elimination System—Cooling Water 

Intake Structures at Existing Facilities 

and Phase I Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

establish requirements under section 

316(b) of the Clean Water Act (CWA) for 

all existing power generating facilities 

and existing manufacturing and 

industrial facilities that withdraw more 

than 2 million gallons per day (MGD) of 

water from waters of the U.S. and use 

at least twenty-five (25) percent of the 

water they withdraw exclusively for 

cooling purposes. The proposed 

national requirements, which would be 

implemented through National 

Pollutant Discharge Elimination System 

(NPDES) permits, would establish 

national requirements applicable to the 

location, design, construction, and 

capacity of cooling water intake 

structures at these facilities by setting 

requirements that reflect the best 

technology available (BTA) for 

minimizing adverse environmental 

impact. The proposed rule constitutes 

EPA’s response to the remand of the 

Phase II existing facility rule and the 

remand of the existing facilities portion 

of the Phase III rule. In addition, EPA is 

also responding to the decision in 

Riverkeeper I and proposing to remove 

from the Phase I new facility rule the 

restoration-based compliance alternative 

and the associated monitoring and 

demonstration requirements. EPA 

expects this proposed regulation would 

minimize adverse environmental 

impacts, including substantially 

reducing the harmful effects of 

impingement and entrainment. As a 

result, the Agency anticipates this 

proposed rule would help protect 

ecosystems affected by cooling water 

intake structures and preserve aquatic 

organisms and the ecosystems they 

inhabit in waters used by cooling water 

intake structures at existing facilities. 

DATES: Comments must be received on 

or before July 19, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–HQ–OW– 

2008–0667 by one of the following 

methods: 

• http:www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: OW-Docket@epa.gov, 

Attention Docket ID No. EPA–HQ–OW– 

2008–0667. 

• Mail: Water Docket, U.S. 

Environmental Protection Agency, Mail 

Code: 4203M, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460. Attention 

Docket ID No. EPA–HQ–OW–2008– 

0667. Please include a total of 3 copies. 

In addition, please mail a copy of your 

comments on information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th St., NW., 

Washington, DC 20503. 

• Hand Delivery: Water Docket, EPA 

Docket Center, EPA West Building 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC, Attention Docket 

ID No. EPA–HQ–OW–2008–0667. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information by 

calling 202–566–2426. 

Instructions: Direct your comments to 

Docket No. EPA–HQ–OW–2008–0667. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Water Docket in the EPA Docket 

Center, EPA/DC, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is 202– 

566–1744, and the telephone number for 

the Water Docket is 202–566–2426. 

FOR FURTHER INFORMATION CONTACT: For 

additional technical information, 

contact Paul Shriner at 202–566–1076; 

e-mail: shriner.paul@epa.gov. For 

additional economic information, 

contact Erik Helm at 202–566–1049; email: helm.erik@epa.gov. For additional 

biological information, contact Tom 

Born at 202–566–1001; e-mail: 

born.tom@epa.gov. 

SUPPLEMENTARY INFORMATION: 

What Entities Are Regulated By This 

Action? This proposed rule would apply 

to existing facilities that use cooling 

water intake structures to withdraw 

water from waters of the U.S. and have 

or require a National Pollutant 

Discharge Elimination System (NPDES) 

permit issued under Section 402 of the 

CWA. Existing facilities subject to this 

regulation would include those with a 

design intake flow greater than 2 MGD. 

If a facility meets these conditions, it is 

subject to today’s proposed regulations. 

If a facility has or requires a NPDES 

permit but does not meet the 2 MGD 

intake flow threshold, it would be 

subject to permit conditions 

implementing section 316(b), developed 

by the NPDES permit director, on a 

case-by-case basis, using best 

professional judgment. This proposal 

defines the term ‘‘cooling water intake 

structure’’ to mean the total physical 

structure and any associated waterways 

used to withdraw water from waters of 

the U.S., provided that at least twentyfive percent of the water withdrawn is 

used for cooling purposes. The cooling 

water intake structure extends from the 

point at which water is withdrawn from 

the surface water source up to, and 

including, the intake pumps. Generally, 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22175 

facilities that meet these criteria fall into 

two major groups: steam electric 

generating facilities and manufacturing 

facilities. 

The following table lists the types of 

entities that are potentially subject to 

this proposed rule. This table is not 

intended to be exhaustive, but rather 

provides a guide for readers regarding 

entities likely to be regulated by this 

action. Other types of entities not listed 

in the table could also be regulated. 

Category Examples of regulated entities Standard Industrial 

Classification Codes 

North American Industry 

Codes (NAIC) 

Federal, State and 

Local Government.

Operators of steam electric generating point source dischargers 

that employ cooling water intake structures..

4911 and 493 ............ 221111, 221112, 221113, 

221119, 221121, 221122, 

221111, 221112, 221113, 

221119, 221121, 221122. 

Industry ...................... Operators of industrial point source dischargers that employ 

cooling water intake structures..

See below ................. See below. 

Steam electric generating ............................................................... 4911 and 493 ............ 221111, 221112, 221113, 

221119, 221121, 221122, 

221111, 221112, 221113, 

221119, 221121, 221122. 

Agricultural production .................................................................... 0133 .......................... 111991, 11193. 

Metal mining ................................................................................... 1011 .......................... 21221. 

Oil and gas extraction (Excluding offshore and coastal subcategories).1311, 1321 ................ 211111, 211112. 

Mining and quarrying of nonmetallic minerals ............................... 1474 .......................... 212391. 

Food and kindred products ............................................................ 2046, 2061, 2062, 

2063, 2075, 2085.

311221, 311311, 311312, 

311313, 311222, 311225, 

31214. 

Tobacco products ........................................................................... 2141 .......................... 312229, 31221. 

Textile mill products ........................................................................ 2211 .......................... 31321. 

Lumber and wood products, except furniture ................................ 2415, 2421, 2436, 

2493.

321912, 321113, 321918, 

321999, 321212, 321219. 

Paper and allied products .............................................................. 2611, 2621, 2631, 

2676.

3221, 322121, 32213, 

322121, 322122, 32213, 

322291. 

Chemical and allied products ......................................................... 28 (except 2895, 

2893, 2851, and 

2879).

325 (except 325182, 

32591, 32551, 32532). 

Petroleum refining and related industries ...................................... 2911, 2999 ................ 32411, 324199. 

Rubber and miscellaneous plastics products ................................. 3011, 3069 ................ 326211, 31332, 326192, 

326299. 

Stone, clay, glass, and concrete products ..................................... 3241 .......................... 32731. 

Primary metal industries ................................................................. 3312, 3313, 3315, 

3316, 3317, 3334, 

3339, 3353, 3363, 

3365, 3366.

324199, 331111, 331112, 

331492, 331222, 332618, 

331221, 22121, 331312, 

331419, 331315, 331521, 

331524, 331525. 

Fabricated metal products, except machinery and transportation 

equipment.

3421, 3499 ................ 332211, 337215, 332117, 

332439, 33251, 332919, 

339914, 332999. 

Industrial and commercial machinery and computer equipment ... 3523, 3531 ................ 333111, 332323, 332212, 

333922, 22651, 333923, 

33312. 

Transportation equipment ............................................................... 3724, 3743, 3764 ...... 336412, 333911, 33651, 

336416. 

Measuring, analyzing, and controlling instruments; photographic, 

medical, and optical goods; watches and clocks.

3861 .......................... 333315, 325992. 

Electric, gas, and sanitary services ................................................ 4911, 4931, 4939, 

4961.

221111, 221112, 221113, 

221119, 221121, 221122, 

22121, 22133. 

Educational services ....................................................................... 8221 .......................... 61131.

Engineering, accounting, research, management and related 

services.

8731 .......................... 54171. 

To determine whether your facility 

could be regulated by this action, you 

should carefully examine the 

applicability criteria in § 125.91 of the 

proposed rule. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed for technical information in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

Supporting Documentation 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA–HQ–OW–2008–0667. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include information claimed as 

Confidential Business Information (CBI) 

or other information the disclosure of 

which is restricted by statute. For 

information on how to access materials 

in the docket, refer to the preceding 

ADDRESSES section. To view docket 

materials, please call ahead to schedule 

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22176 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

an appointment. Every user is entitled 

to copy 266 pages per day before 

incurring a charge. The Docket may 

charge 15 cents for each page over the 

266-page limit plus an administrative 

fee of $25.00. 

2. Electronic Access 

You may access this Federal Register 

document and the docket electronically, 

as well as submit public comments, 

through the Web site http:// 

www.regulations.gov by searching for 

Docket ID No. EPA–HQ–OW–2008– 

0667. For additional information about 

the public docket, visit the EPA Docket 

Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

3. Technical Support Documents 

The proposed regulation is supported 

by three major documents: 

1. Economic and Benefits Analysis for 

the Proposed Section 316(b) Existing 

Facilities Rule (EPA–821–R–11–003), 

hereafter referred to as the Economic 

and Benefits Analysis (EBA or more 

simply EA). This document presents the 

analysis of compliance costs, closures, 

energy supply effects, and a summary of 

benefits associated with the proposed 

rule. 

2. Environmental and Economic 

Benefits Analysis for the Proposed 

Section 316(b) Existing Facilities Rule 

(EPA–821–R–11–002), hereafter referred 

to as the Environmental and Economic 

Benefits Analysis (EEBA). This 

document examines cooling water 

intake structure impacts and regulatory 

benefits at the regional level. 

3. Technical Development Document 

for the Proposed Section 316(b) Existing 

Facilities Rule (EPA–821–R–11–001), 

hereafter referred to as the Technical 

Development Document (TDD). This 

document presents detailed information 

on the methods used to develop unit 

costs and describes the set of 

technologies that may be used to meet 

the proposed rule requirements. 

Table of Contents 

I. Legal Authority, Purpose, and Background 

of Today’s Proposed Regulation 

A. Legal Authority 

B. Purpose of Today’s Proposed Regulation 

C. Background 

II. Proposed Amendments Related to the 

Phase I Rule 

A. Restoration Provisions Not Authorized 

B. Corrections to Subpart I 

III. What new information has EPA obtained 

or developed in support of this proposed 

rule? 

A. Additional Data 

B. Implementation Experience 

C. New or Revised Analyses 

IV. Revised Industry Description 

A. Water Use in Power Production and 

Manufacturing 

B. Overview of Electric Generators 

C. Overview of Manufacturers 

D. Other Existing Facilities 

V. Scope and Applicability of the Proposed 

Section 316(b) Existing Facility Rule 

A. General Applicability 

B. What is an ‘‘existing facility’’ for 

purposes of the section 316(b) Phase II 

rule? 

C. What is ‘‘cooling water’’ and what is a 

‘‘cooling water intake structure?’’ 

D. Would my facility be covered if it is a 

point source discharger? 

E. Would my facility be covered if it 

withdraws water from waters of the U.S.? 

What if my facility obtains cooling water 

from an independent supplier? 

F. What intake flow thresholds result in an 

existing facility being subject to this 

proposed rule? 

G. Offshore Oil and Gas Facilities, Seafood 

Processing Vessels or LNG Import 

Terminals BTA Requirements Under 

This Proposed Rule 

H. What is a ‘‘new unit’’ and how are new 

units addressed under this proposed 

rule? 

VI. BTA Consideration 

A. EPA’s Approach to BTA 

B. Technologies Considered To Minimize 

Impingement and Entrainment 

C. Technology Basis for Today’s Proposed 

Regulation 

D. Options Considered for Today’s 

Proposed Regulation 

E. Option Selection 

F. Four Factors Support EPA’s Decision To 

Establish Site-Specific BTA Entrainment 

Controls for Existing Facilities 

G. The Process for Establishing SiteSpecific BTA Entrainment Controls 

H. Implementation 

I. EPA’s Costing of the Preferred Option 

J. Consideration of Cost/Benefit on a SiteSpecific Basis 

VII. Economic Impact of the Proposed Rule 

A. Overview of Costs to Complying 

Facilities and Federal and State 

Governments 

B. Development of Compliance Costs 

C. Social Cost of the Regulatory Options 

D. Economic Impact 

VIII. Benefits Analysis 

A. Introduction 

B. Regional Study Design 

C. Physical Impacts of I&E Mortality 

D. National Benefits of Today’s Considered 

Options 

E. Uncertainty and Limitations 

IX. Implementation 

A. How would the proposed requirements 

be applied? 

B. When would affected facilities be 

required to comply? 

C. What are my requirements? 

D. What information must I submit in my 

permit application? 

E. When are application studies due? 

F. What are the monitoring requirements in 

today’s proposal for existing facilities? 

G. What reports would I be required to 

submit? 

H. What records would I be required to 

keep? 

I. Are there other federal statutes that could 

be incorporated into a facility’s permit? 

J. What is the director’s role under today’s 

proposal? 

X. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Executive Order 13158: Marine 

Protected Areas 

XI. Solicitation of Data and Comments 

A. General Solicitation of Comment 

B. Specific Solicitation of Comments and 

Data 

I. Legal Authority, Purpose, and 

Background of Today’s Proposed 

Regulation 

A. Legal Authority 

Today’s proposal is issued under the 

authority of sections 101, 301, 304, 308, 

316, 401, 402, 501, and 510 of the Clean 

Water Act (CWA), 33 U.S.C. 1251, 1311, 

1314, 1318, 1326, 1341, 1342, 1361, and 

1370. 

B. Purpose of Today’s Proposed 

Regulation 

The purpose of today’s proposed rule 

is to propose national requirements for 

cooling water intake structures at 

existing facilities that implement 

section 316(b) of the CWA. Section 

316(b) of the CWA provides that any 

standard established pursuant to section 

301 or 306 of the CWA and applicable 

to a point source must require that the 

location, design, construction, and 

capacity of cooling water intake 

structures reflect the best technology 

available (BTA) for minimizing adverse 

environmental impact. 

EPA first promulgated regulations to 

implement section 316(b) in 1976. The 

U.S. Court of Appeals for the Fourth 

Circuit remanded these regulations to 

EPA which withdrew them, leaving in 

place a provision not remanded that 

directed permitting authorities to 

determine BTA for each facility on a 

case-by-case basis. In 1995, EPA entered 

into a consent decree establishing a 

schedule for taking final action on 

regulations to implement section 316(b). 

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Pursuant to a schedule in the amended 

decree providing for final action on 

regulations in three phases, in 2001, 

EPA published a Phase I rule governing 

new facilities. The U.S. Court of 

Appeals for the Second Circuit, while 

generally upholding the rule, rejected 

the provisions allowing restoration to be 

used to meet the requirements of the 

rule. Riverkeeper, Inc. v. U.S. EPA, 358 

F. 3d 174, 181 (2d Cir.2004) 

(‘‘Riverkeeper I’’). Today’s proposed rule 

proposes to delete these restoration 

provisions. 

In 2004, EPA published the Phase II 

rule applicable to existing power plants 

with a design intake flow greater than or 

equal to 50 MGD. Following challenge, 

the Second Circuit remanded numerous 

aspects of the rule to the Agency, 

including the Agency’s decision to 

reject closed-cycle cooling as BTA. The 

Agency made this determination, in 

part, based on a consideration of costs 

and benefits. The Second Circuit 

concluded that a comparison of the 

costs and benefits of closed-cycle 

cooling was not a proper factor to 

consider in determining BTA. 

Riverkeeper, Inc. v. U.S.EPA, 475 F. 3d 

83 (2d Cir. 2007) (‘‘Riverkeeper II’’). In 

2008, the U.S, Supreme Court agreed to 

review the Riverkeeper II decision 

limited to a single issue: whether 

section 316(b) authorizes EPA to 

balance costs and benefits in 316(b) 

rulemaking. In April 2009, in Entergy 

Corp. v. Riverkeeper Inc., 129 S. Ct. 

1498, 68 ERC 1001 (2009) (40 ER 770, 

4/3/09), the Supreme Court ruled that it 

is permissible under section 316(b) to 

consider costs and benefits in 

determining the best technology 

available to minimize adverse 

environmental impacts. The court left it 

to EPA’s discretion to decide whether 

and how to consider costs and benefits 

in 316(b) actions, including rulemaking 

and BPJ determinations. The Supreme 

Court remanded the rule to the Second 

Circuit. Subsequently, EPA asked the 

Second Circuit to return the rule to the 

Agency for further review of the rule. 

In 2006, EPA published the Phase III 

rule. The Phase III rule establishes 

316(b) requirements for certain new 

offshore oil and gas extraction facilities. 

In addition, EPA determined that, in the 

case of electric generators with a design 

intake flow of less than 50 MGD and 

existing manufacturing facilities, 316(b) 

requirements should be established by 

NPDES permit directors on a case-bycase basis using their best professional 

judgment. In July 2010, the U. S. Court 

of Appeals for the Fifth Circuit issued 

a decision upholding EPA’s rule for new 

offshore oil and gas extraction facilities. 

Further, the court granted the request of 

EPA and environmental petitioners in 

the case to remand the existing facility 

portion of the rule back to the Agency 

for further rulemaking. See section C.2 

below for a more detailed discussion of 

the history of EPA’s actions to address 

standards for cooling water intake 

structures. 

In response to the remand in Phase II, 

the remand of the existing facility 

portion of the Phase III rule, and the 

associated Supreme Court decision, EPA 

is today proposing a number of 

requirements. Most significantly, EPA is 

proposing requirements reflecting the 

best technology available for 

minimizing adverse environmental 

impact, applicable to the location, 

design, construction, and capacity of 

cooling water intake structures for 

existing facilities. EPA is treating 

existing power generating facilities and 

existing manufacturing and industrial 

facilities in one proceeding. Today’s 

proposal applies to all existing power 

generating facilities and existing 

manufacturing and industrial facilities 

that have a design intake flow of at least 

two million gallons from waters of the 

United States and use at least twentyfive (25) percent of the water they 

withdraw exclusively for cooling 

purposes. In addition, EPA is today also 

responding to the decision in 

Riverkeeper I and proposing minor 

changes to the Phase I rule for new 

facilities. Specifically, EPA proposes to 

remove from the Phase I rule the 

restoration-based compliance alternative 

and the associated monitoring and 

demonstration requirements. 

C. Background 

1. The Clean Water Act 

The Federal Water Pollution Control 

Act, also known as the Clean Water Act 

(CWA), 33 U.S.C. 1251 et seq., seeks to 

restore and maintain the chemical, 

physical, and biological integrity of the 

nation’s waters. 33 U.S.C. 1251(a). 

Among the goals of the Act is that 

wherever attainable, an interim goal of 

water quality which provides for the 

protection and propagation of fish, 

shellfish, and wildlife and provides for 

recreation in and on the water. 33 U.S.C. 

1251(a)(2). 

In furtherance of these objectives, the 

CWA establishes a comprehensive 

regulatory program, key elements of 

which are (1) a prohibition on the 

discharge of pollutants from point 

sources to waters of the United States, 

except in compliance with the statute; 

(2) authority for EPA or authorized 

States or Tribes to issue National 

Pollutant Discharge Elimination System 

(NPDES) permits that authorize and 

regulate the discharge of pollutants; and 

(3) requirements for effluent limitations 

and other conditions in NPDES permits 

to implement applicable technologybased effluent limitations guidelines 

and standards and applicable State 

water quality standards. 

Section 402 of the CWA authorizes 

EPA (or an authorized State or Tribe) to 

issue an NPDES permit to any person 

discharging any pollutant or 

combination of pollutants from a point 

source into waters of the United States. 

Forty-seven States and one U.S. territory 

are authorized under section 402(b) to 

administer the NPDES permitting 

program. NPDES permits restrict the 

types and amounts of pollutants, 

including heat, that may be discharged 

from various industrial, commercial, 

and other sources of wastewater. These 

permits control the discharge of 

pollutants by requiring dischargers to 

meet technology-based effluent 

limitations guidelines (ELGs) or new 

source performance standards (NSPS) 

established pursuant to section 301 or 

section 306. Where such nationally 

applicable ELGs or NSPS exist, permit 

authorities must incorporate them into 

permit requirements. Where they do not 

exist, permit authorities establish 

effluent limitations and conditions, 

reflecting the appropriate level of 

control (depending on the type of 

pollutant) based on the best professional 

judgment (BPJ) of the permit writer. 

Limitations based on these guidelines, 

standards, or on best professional 

judgment are known as technologybased effluent limits. Where technologybased effluent limits are inadequate to 

meet applicable State water quality 

standards, section 301(b)(1)(C) of the 

Clean Water Act requires permits to 

include more stringent limits to meet 

applicable water quality standards. 

NPDES permits also routinely include 

standard conditions applicable to all 

permits, special conditions, and 

monitoring and reporting requirements. 

In addition to these requirements, 

NPDES permits must contain conditions 

to implement the requirements of 

section 316(b). 

Section 510 of the Clean Water Act 

provides that, except as provided in the 

Clean Water Act, nothing shall preclude 

or deny the right of any State (or 

political subdivision thereof) to adopt or 

enforce any requirement respecting 

control or abatement of pollution; 

except that if a limitation, prohibition or 

standard of performance is in effect 

under the Clean Water Act, such State 

may not adopt any other limitation, 

prohibition, or standard of performance 

which is less stringent than the 

limitation, prohibition, or standard of 

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performance under the Act. EPA 

interprets this to reserve for the States 

authority to implement requirements 

that are more stringent than the Federal 

requirements under state law. PUD No. 

1 of Jefferson County v. Washington 

Dep’t of Ecology, 511 U.S. 700, 705 

(1994). 

Sections 301, 304, and 306 of the 

CWA require that EPA develop 

technology-based effluent limitations 

guidelines and new source performance 

standards that are used as the basis for 

discharge requirements in wastewater 

discharge permits. EPA develops these 

effluent limitations guidelines and 

standards for categories of industrial 

dischargers based on the pollutants of 

concern discharged by the industry, the 

degree of control that can be attained 

using various levels of pollution control 

technology, consideration of various 

economic tests appropriate to each level 

of control, and other factors identified 

in sections 304 and 306 of the CWA 

(such as non-water quality 

environmental impacts including energy 

impacts). EPA has promulgated 

regulations setting effluent limitations 

guidelines and standards under sections 

301, 304, and 306 of the CWA for more 

than 56 industries. See 40 CFR parts 405 

through 471. EPA has established 

effluent limitations guidelines and 

standards that apply to most of the 

industry categories that use cooling 

water intake structures (e.g., steam 

electric power generation, paper and 

allied products, petroleum refining, iron 

and steel manufacturing, and chemicals 

and allied products). 

Section 316(b) states that any 

standard established pursuant to section 

301 or section 306 of [the Clean Water] 

Act and applicable to a point source 

shall require that the location, design, 

construction, and capacity of cooling 

water intake structures reflect the best 

technology available for minimizing 

adverse environmental impact. 

Section 316(b) addresses the adverse 

environmental impact caused 

specifically by the intake of cooling 

water, rather than discharges of 

pollutants, including thermal 

discharges, into waters of the United 

States. Despite this special focus, the 

requirements of section 316(b) remain 

closely linked to several of the core 

elements of the NPDES permit program 

established under section 402 of the 

CWA to control discharges of pollutants 

into navigable waters. Thus, while 

effluent limitations apply to the 

discharge of pollutants by NPDESpermitted point sources to waters of the 

United States, section 316(b) applies to 

facilities subject to NPDES requirements 

that also withdraw water from a water 

of the United States for cooling and that 

use a cooling water intake structure to 

do so. 

The CWA does not describe the 

factors to be considered in establishing 

section 316(b) substantive performance 

requirements that reflect the ‘‘best 

technology available for minimizing 

adverse environmental impact’’ nor does 

it require that EPA develop nationally 

applicable performance requirements 

through rule making. The most recent 

guidance in interpreting 316(b) comes 

from the U.S. Supreme Court’s decision 

in Entergy Corp. v. Riverkeeper, Inc. As 

noted, the decision was limited to the 

single question of whether Section 

316(b) of the Clean Water Act authorizes 

EPA to compare costs and benefits of 

various technologies when setting 

national performance standards for 

cooling water intake structures under 

Section 316(b) of the Clean Water Act. 

In Riverkeeper II, the Second Circuit 

rejected EPA’s determination that 

closed-cycle cooling was not BTA 

because it could not determine whether 

EPA had improperly considered costs 

and benefits in its 316(b) rulemaking. 

The Supreme Court reversed and 

remanded the Second Circuit ruling in 

a 6–3 opinion authored by Justice 

Scalia. The Court held that it is 

reasonable for EPA to conduct a costbenefit analysis in setting national 

performance standards for cooling water 

intake structures under Section 316(b). 

The Court held that EPA has the 

discretion to consider costs and benefits 

under Section 316(b) but is not required 

to consider costs and benefits. The 

Court’s discussion of the language of 

section 316(b)—section 316(b) is 

‘‘unencumbered by specified statutory 

factors’’—and its critique of the Second 

Circuit’s decision affirms EPA’s broad 

discretion to consider a number of 

factors in standard setting under section 

316(b). While the Supreme Court’s 

decision is limited to whether or not 

EPA may consider one factor (cost/ 

benefit analysis) under section 316(b), 

the language also suggests that EPA has 

wide discretion in considering other 

factors that it deems relevant to 316(b) 

standard setting. (‘‘It is eminently 

reasonable to conclude that § 1326b’s 

silence is meant to convey nothing more 

than a refusal to tie the agency’s hands 

as to whether cost-benefit analysis 

should be used, and if so to what 

degree.’’ 129 S.Ct. 1498, 1508 (2009). 

Regarding the other factors EPA may 

consider, section 316(b) cross references 

sections 301 and 306 of the CWA by 

requiring that any standards established 

pursuant to those sections also must 

require that the location, design, 

construction and capacity of intake 

structures reflect BTA. EPA has 

interpreted the cross reference as 

authorizing consideration of the same 

factors considered under those 

provisions Thus, for example, section 

306 directs EPA to establish 

performance standards for new sources 

based on the ‘‘best available 

demonstrated control technology’’ 

(BADT). 33 U.S.C. 1316(a)(1). In 

establishing BADT, EPA ‘‘shall take into 

consideration the cost of achieving such 

effluent reduction, and any non-water 

quality environmental impact and 

energy requirements.’’ 33 U.S.C. 

1316(b)(2)(B). The specific crossreference in CWA section 316(b) to 

CWA section 306 ‘‘is an invitation to 

look to section 306 for guidance in 

discerning what factors Congress 

intended the EPA to consider in 

determining the ‘best technology 

available’ ’’ for new sources. See 

Riverkeeper v. EPA, 358 F. 2d 174, 186 

(2nd Cir. 2004). 

Similarly, Section 301 of the CWA 

requires EPA to establish standards 

known as ‘‘effluent limitations’’ for 

existing point source discharges in two 

phases. In the first phase, applicable to 

all pollutants, EPA must establish 

effluent limitations based on the ‘‘best 

practicable control technology currently 

available’’ (BPT). 33 U.S.C. 

1311(b)(1)(A). In establishing BPT, the 

CWA directs EPA to consider the total 

cost of application of technology in 

relation to the effluent reduction 

benefits to be achieved from such 

application, and to also take into 

account the age of the equipment and 

facilities involved, the process 

employed, the engineering aspects of 

the application of various types of 

control techniques, process changes, 

non-water quality environmental impact 

(including energy requirements), and 

such other factors as [EPA] deems 

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

In the second phase, EPA must 

establish effluent limitations for 

conventional pollutants based on the 

‘‘best conventional pollution control 

technology’’ (BCT), and for toxic 

pollutants based on the ‘‘best available 

technology economically achievable’’ 

(BAT). 33 U.S.C. 1311(b)(2)(A), (E). 

In determining BCT, EPA must 

consider, among other factors, the 

relationship between the costs of 

attaining a reduction in effluents and 

the effluent reduction benefits derived, 

and the comparison of the cost and level 

of reduction of such pollutants from the 

discharge from publicly owned 

treatment works to the cost and level of 

reduction of such pollutants from a 

class or category of industry source 

* * * and the age of equipment and 

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facilities involved, the process 

employed, the engineering aspects 

* * * of various types of control 

techniques, process changes, the cost of 

achieving such effluent reduction, nonwater quality environmental impacts 

(including energy requirements), and 

such other factors as [EPA] deems 

appropriate. 33 U.S.C. 1314(b)(4)(B). 

In determining BAT, the CWA directs 

EPA to consider ‘‘the age of equipment 

and facilities involved, the process 

employed, the engineering aspects 

* * * of various types of control 

techniques, process changes, the cost of 

achieving such effluent reduction, nonwater quality environmental impacts 

(including energy requirements), and 

such other factors as [EPA] deems 

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

Section 316(b) expressly refers to 

section 301, and the phrase ‘‘best 

technology available’’ is very similar to 

the phrases ‘‘best available technology 

economically achievable’’ and ‘‘best 

practicable control technology currently 

available’’ in that section. Thus, section 

316(b), section 301(b)(1)(A)—the BPT 

provision—and section 301(b)(1)(B)— 

the BAT provision—all include the 

terms ‘‘best,’’ ‘‘technology,’’ and 

‘‘available,’’ but neither BPT nor BAT 

goes on to consider minimizing adverse 

environmental impacts, as BTA does. 

See 33 U.S.C. 1311(b)(1)(A) and (2)(A). 

These facts, coupled with the brevity of 

section 316(b) itself, prompt EPA to look 

to section 301 and, ultimately, section 

304 for further guidance in determining 

the ‘‘best technology available to 

minimize adverse environmental 

impact’’ of cooling water intake 

structures for existing facilities. 

By the same token, however, there are 

significant differences between section 

316(b) and sections 301 and 304. See 

Riverkeeper, Inc. v. United States 

Environmental Protection Agency (2nd 

Cir. Feb. 3, 2004) (‘‘not every statutory 

directive contained [in sections 301 and 

306] is applicable’’ to a section 316(b) 

rulemaking). Moreover, as the Supreme 

Court recognized, while the provisions 

governing the discharge of toxic 

pollutants must require the elimination 

of discharges if technically and 

economically achievable, section 316(b) 

has the less ambitious goal of 

‘‘minimizing adverse environmental 

impact.’’ 129 S.Ct. 1498, 1506. In 

contrast to the effluent limitations 

provisions, the object of the ‘‘best 

technology available’’ is explicitly 

articulated by reference to the receiving 

water: to minimize adverse 

environmental impact in the waters 

from which cooling water is withdrawn. 

This difference is reflected in EPA’s past 

practices in implementing sections 301, 

304, and 316(b). EPA has established 

BAT effluent limitations guidelines and 

NSPS based on the efficacy of one or 

more technologies to reduce pollutants 

in wastewater in relation to their costs 

without necessarily considering the 

impact on the receiving waters. This 

contrasts to 316(b) requirements, where 

EPA has previously considered the costs 

of technologies in relation to the 

benefits of minimizing adverse 

environmental impact in establishing 

316(b) limits, which historically has 

been done on a case-by case basis. In Re 

Public Service Co. of New Hampshire, 

10 ERC 1257 (June 17, 1977); In Re 

Public Service Co. of New Hampshire, 1 

EBAD 455 (Aug. 4, 1978); Seacoast AntiPollution League v. Costle, 597 F. 2d 

306 (1st Cir. 1979). EPA concluded that, 

because both section 301 and 306 are 

expressly cross-referenced in section 

316(b), EPA reasonably interpreted 

section 316(b) as authorizing 

consideration of the same factors, 

including costs, as in those sections. 

EPA interpreted ‘‘best technology 

available’’ to mean the best technology 

available at an ‘‘economically 

practicable’’ cost. This approach squared 

with the limited legislative history of 

section 316(b) which suggested the BTA 

was to be based on technology whose 

costs were ‘‘economically practicable.’’ 

In debate on section 316(b), one 

legislator explained that ‘‘[t]he reference 

here to ‘best technology available’ is 

intended to be interpreted to mean the 

best technology available commercially 

at an economically practicable cost.’’ 

118 Cong. Rec. 33,762 (1972) (statement 

of Rep. Clausen) (emphasis added). 

For EPA’s initial Phase II rulemaking, 

as it had during 30 years of BPJ section 

316(b) permitting, EPA therefore 

interpreted CWA section 316(b) as 

authorizing EPA to consider not only 

the costs of technologies but also their 

effects on the water from which the 

cooling water is withdrawn. 

2. History of Actions To Address 

Cooling Water Intake Structures Under 

the NPDES Program 

a. 1976 Rulemaking 

In April 1976, EPA promulgated 

regulations under section 316(b) that 

addressed cooling water intake 

structures. 41 FR 17387 (April 26, 1976), 

see also the proposed rule at 38 FR 

34410 (December 13, 1973). The rule 

added a new § 401.14 to 40 CFR Chapter 

I that reiterated the requirements of 

Clean Water Act section 316(b). It also 

added a new part 402, which included 

three sections: (1) Section 402.10 

(Applicability), (2) § 402.11 (Specialized 

definitions), and (3) § 402.12 (Best 

technology available for cooling water 

intake structures). Section 402.10 stated 

that the provisions of part 402 applied 

to ‘‘cooling water intake structures for 

point sources for which effluent 

limitations are established pursuant to 

section 301 or standards of performance 

are established pursuant to section 306 

of the Act.’’ Section 402.11 defined the 

terms ‘‘cooling water intake structure,’’ 

‘‘location,’’ ‘‘design,’’ ‘‘construction,’’ 

‘‘capacity,’’ and ‘‘Development 

Document.’’ Section 402.12 included the 

following language: The information 

contained in the Development 

Document shall be considered in 

determining whether the location, 

design, construction, and capacity of a 

cooling water intake structure of a point 

source subject to standards established 

under section 301 or 306 reflect the best 

technology available for minimizing 

adverse environmental impact. 

In 1977, fifty-eight electric utility 

companies challenged those regulations, 

arguing that EPA had failed to comply 

with the requirements of the 

Administrative Procedure Act (APA) in 

promulgating the rule. Specifically, the 

utilities argued that EPA had neither 

published the Development Document 

in the Federal Register nor properly 

incorporated the document into the rule 

by reference. The U.S. Court of Appeals 

for the Fourth Circuit agreed and, 

without reaching the merits of the 

regulations themselves, remanded the 

rule. Appalachian Power Co. v. Train, 

566 F.2d 451 (4th Cir. 1977). EPA later 

withdrew part 402. 44 FR 32956 (June 

7, 1979). The regulation at § 401.14, 

which reiterates the statutory 

requirement, remains in effect. 

Since the Fourth Circuit remanded 

EPA’s section 316(b) regulations in 

1977, NPDES permit authorities have 

made decisions implementing section 

316(b) on a case-by-case, site-specific 

basis. EPA published draft guidance 

addressing section 316(b) 

implementation in 1977. See Draft 

Guidance for Evaluating the Adverse 

Impact of Cooling Water Intake 

Structures on the Aquatic Environment: 

Section 316(b) Pub. L. 92–500 (U.S. 

EPA, 1977). This draft guidance 

described the studies recommended for 

evaluating the impact of cooling water 

intake structures on the aquatic 

environment and recommended a basis 

for determining the best technology 

available for minimizing adverse 

environmental impact. The 1977 section 

316(b) draft guidance states, ‘‘[t]he 

environmental-intake interactions in 

question are highly site-specific and the 

decision as to best technology available 

for intake design, location, construction, 

and capacity must be made on a casemstockstill on DSKH9S0YB1PROD with PROPOSALS2

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by-case basis.’’ (Section 316(b) Draft 

Guidance, U.S. EPA, 1977, p. 4). This 

case-by-case approach was also 

consistent with the approach described 

in the 1976 Development Document 

referenced in the remanded regulation. 

The 1977 section 316(b) draft guidance 

suggested a general process for 

developing information needed to 

support section 316(b) decisions and 

presenting that information to the 

permitting authority. The process 

involved the development of a site 

specific study of the environmental 

effects associated with each facility that 

uses one or more cooling water intake 

structures, as well as consideration of 

that study by the permitting authority in 

determining whether the facility must 

make any changes for minimizing 

adverse environmental impact. Under 

this framework, the Director determined 

whether appropriate studies have been 

performed, whether a given facility has 

minimized adverse environmental 

impact, and what, if any, technologies 

may be required. 

b. Phase I—New Facility Rule 

On November 9, 2001, EPA took final 

action on regulations governing cooling 

water intake structures at new facilities. 

See 66 FR 65255 (December 18, 2001). 

On December 26, 2002, EPA made 

minor changes to the Phase I 

regulations. 67 FR 78947. The final 

Phase I new facility rule (40 CFR part 

125, subpart I) establishes requirements 

applicable to the location, design, 

construction, and capacity of cooling 

water intake structures at new facilities 

that have a design capacity to withdraw 

at least two million gallons per day 

(MGD) and use at least twenty-five 

percent of the water they withdraw 

solely for cooling purposes. 

In the new facility rule, EPA adopted 

a two-track approach. Under Track I, for 

facilities that withdraw equal to or 

greater than 10 MGD, the intake flow of 

the cooling water intake structure is 

restricted, at a minimum, to a level 

commensurate with that which could be 

attained by use of a closed-cycle, 

recirculating cooling system. For 

facilities that withdraw greater than 2 

MGD, the design through-screen intake 

velocity is restricted to 0.5 feet per 

second and the total quantity of intake 

is restricted to a proportion of the mean 

annual flow of a freshwater river or 

stream, or to a level necessary to 

maintain the natural thermal 

stratification or turnover patterns 

(where present) of a lake or reservoir 

except in cases where the disruption is 

beneficial, or to a percentage of the tidal 

excursions of a tidal river or estuary. If 

certain environmental conditions exist, 

an applicant that withdraws equal to or 

greater than 10 MGD must select and 

implement appropriate design and 

construction technologies for further 

minimizing impingement mortality and 

entrainment. Applicants with greater 

than 2 MGD but less than 10 MGD flows 

are not required to reduce intake flow to 

a level commensurate with a closedcycle, recirculating cooling system, but 

must still meet specific operational 

criteria. 

Under Track II, the applicant has the 

opportunity to demonstrate to the 

Director that the technologies he 

employs will reduce the level of adverse 

environmental impact to a comparable 

level to what would be achieved by 

meeting the Track I requirements for 

restricting intake flow and velocity. In 

making this demonstration, the 

regulations allow an applicant to rely on 

a combination of measures in additional 

to technology controls for reducing 

impingement and entrainment to 

achieve results equivalent to the Track 

I intake flow and velocity requirements. 

These include measures to restore the 

affected water body such as restocking 

fish and improvement of the 

surrounding habitat to offset the adverse 

effects that would otherwise be caused 

by the operation of the intake structures. 

These restoration measures would result 

in increases in fish and shellfish which, 

in combination with any technologies 

employed, would result in a level of fish 

and shellfish in the water body 

comparable to that which would result 

from the reductions in impingement 

mortality and entrainment that would 

be achieved under Track I. Note that 

restoration provisions are no longer 

authorized (and EPA is proposing to 

delete them from the CFR in this rule 

making), but they are included in this 

description of the Phase I rule for 

completeness. See Chapter II of this 

preamble for more information. 

In addition, under the Phase I rule, 

the Director (i.e., the permitting 

authority) may establish less stringent 

alternative requirements for a facility if 

compliance with the Phase I standards 

would result in compliance costs 

wholly out of proportion to those EPA 

considered in establishing the Phase I 

requirements or would result in 

significant adverse impacts on local air 

quality, water resources, or local energy 

markets. 

EPA specifically excluded new 

offshore oil and gas extraction facilities 

from the Phase I new facility rule, but 

committed to consider establishing 

requirements for such facilities in the 

Phase III rulemaking. 66 FR 65338 

(December 18, 2001). 

c. Phase II—Large Flow Existing Power 

Plants 

On February 16, 2004, EPA took final 

action on regulations governing cooling 

water intake structures at certain 

existing power producing facilities. 69 

FR 41576 (July 9, 2004). The final Phase 

II rule applied to existing facilities that 

are point sources; that, as their primary 

activity, both generate and transmit 

electric power or generate electric 

power for sale or transmission; that use 

or propose to use a cooling water intake 

structure with a total design intake flow 

of 50 MGD or more to withdraw water 

from waters of the United States; and 

that use at least 25 percent of the 

withdrawn water exclusively for cooling 

purposes. In addition, power producers 

fitting the description above were also 

subject to the final Phase II rule even if 

they obtain their cooling water from one 

or more independent suppliers of 

cooling water. Such facilities were 

subject to the rule if their supplier 

withdraws water from waters of the U.S. 

even if the supplier was not itself a 

Phase II existing facility. EPA included 

this provision to prevent circumvention 

of the Phase II rule requirements by a 

facility purchasing cooling water from 

entities not otherwise subject to Section 

316(b). 

The final Phase II rule and preamble 

also clarified the definition of an 

‘‘existing’’ power producing facility. The 

Phase II rule defined an ‘‘existing 

facility’’ as ‘‘any facility that commenced 

construction as described in 

§ 122.29(b)(4) on or before January 17, 

2002; and any modification of, or 

addition of a unit at such a facility that 

does not meet the definition of a new 

facility at § 125.83.’’ Given that the 

definition of the term ‘‘existing facility’’ 

was based in part on the Phase I 

definition of the term ‘‘new facility,’’ the 

preamble to the final Phase II rule also 

clarified and provided some examples 

of how the definition of ‘‘existing 

facility’’ might apply to certain changes 

at power producing facilities. 

Under the Phase II rule, EPA 

established BTA performance standards 

for the reduction of impingement 

mortality and, under certain 

circumstances, entrainment (see 69 FR 

41590–41593). The performance 

standards consisted of ranges of 

reductions in impingement mortality 

and/or entrainment (e.g., reduce 

impingement mortality by 80 to 95 

percent and/or entrainment by 60 to 90 

percent) relative to a ‘‘calculation 

baseline’’ that reflected the level of 

impingement mortality and entrainment 

that would occur absent specific 

controls. These performance standards 

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were not based on a single technology 

but, rather, on consideration of a 

combination of technologies that EPA 

determined were commercially 

available and economically achievable 

for the industries affected as a whole. 

(69 FR 41598–41610). EPA based the 

impingement mortality and entrainment 

(I&E) performance standards on a 

combination of technologies because it 

found no single technology to be most 

effective at all affected facilities. For 

impingement standards, these 

technologies included: (1) Fine and 

wide-mesh wedgewire screens, (2) 

barrier nets, (3) modified screens and 

fish return systems, (4) fish diversion 

systems, and (5) fine mesh traveling 

screens and fish return systems. With 

regard to entrainment reduction, these 

technologies include: (1) Aquatic filter 

barrier systems, (2) fine mesh 

wedgewire screens, and (3) fine mesh 

traveling screens with fish return 

systems. Because EPA based the 

performance standards on a 

combination of technologies and 

because of the uncertainty inherent in 

predicting the efficacy of one or more of 

these technologies as applied to 

different Phase II facilities, EPA 

promulgated these standards as ranges. 

Furthermore, because the site-specific 

performance was based on a comparison 

to a once-through system without any 

specific controls on the shoreline near 

the source waterbody (i.e., calculation 

baseline, see section III.A.2 for more 

details), the rule also allowed facilities 

to receive credit towards meeting the 

performance standards for I&E reduction 

associated with alternate locations of 

their intakes (eg, deep water where fish 

and shellfish were less abundant). 

The types of performance standard 

applicable to a particular facility (i.e., 

reductions in impingement mortality 

only or impingement mortality and 

entrainment) were based on several 

factors, including the facility’s location 

(i.e., source waterbody), rate of use 

(capacity utilization rate), and the 

proportion of the waterbody withdrawn. 

The Phase II rule identified five 

compliance alternatives to meet the 

performance standards. A facility could 

demonstrate to the Director one of the 

following: (1) That it has already 

reduced its flow commensurate with a 

closed-cycle recirculating system (to 

meet both impingement mortality and 

entrainment), or that it has already 

reduced its maximum through-screen 

velocity to 0.5 feet per second or less (to 

meet the impingement performance 

standard only); (2) that its current 

cooling water intake structure 

configuration meets the applicable 

performance standards; (3) that it has 

selected design and construction 

technologies, operational measures, 

and/or restoration measures that, in 

combination with any existing design 

and construction technologies, 

operational measures, and/or restoration 

measures, meet the applicable 

performance standards; (4) that it meets 

the applicability criteria and has 

installed and is properly operating and 

maintaining a rule-specified and/or 

approved State-specified design and 

construction technology (i.e., submerged 

cylindrical wedgewire screens) in 

accordance with § 125.99(a) or an 

alternative technology that meets the 

appropriate performance standards and 

is approved by the Director in 

accordance with § 125.99(b); or (5) that 

its costs of compliance would be 

significantly greater either than the costs 

considered by the Administrator for a 

like facility to meet the applicable 

performance standards, or than the 

benefits of meeting the applicable 

performance standards at the facility. 

Under the cost-cost comparison 

alternative, a Director could determine 

that the cost of compliance for a 

particular facility would be significantly 

greater than the costs considered by 

EPA in establishing the applicable 

impingement mortality and entrainment 

reduction performance standards. 

Similarly, under the cost-benefit 

comparison alternative, a Director could 

determine that the cost of compliance 

for a particular facility would be 

significantly greater than the benefits of 

complying with the applicable 

performance standards. In the event of 

either of these determinations, the 

Director would have to make a sitespecific determination of BTA for 

minimizing adverse environmental 

impact that came as close as possible to 

meeting the applicable performance 

standards at a cost that did not 

significantly exceed either the costs EPA 

considered in establishing these 

standards or the site-specific benefits of 

meeting these standards. 

The final Phase II rule also provided 

that a facility that chooses specified 

compliance alternatives might request 

that compliance with the requirements 

of the rule be determined based on the 

implementation of a Technology 

Installation and Operation Plan (TIOP) 

that would indicate how the facility 

would install and ensure the efficacy, to 

the extent practicable, of design and 

construction technologies, and/or 

operational measures, and/or a 

Restoration Plan. The rule also 

established requirements for the 

development and submittal of a TIOP 

(§ 125.95(b)(4)(ii)) as well as provisions 

that specified how compliance could be 

determined based on implementation of 

a TIOP (§ 125.94(d)). Under these 

provisions, a TIOP could be requested 

in the first permit term and continued 

use of a TIOP could be requested where 

a facility was in compliance with such 

plan and/or its Restoration Plan. 

d. Phase III Rulemaking—Low Flow 

Existing Power Plants, Existing 

Manufacturing Facilities, and New 

Offshore Oil and Gas Facilities 

On June 16, 2006, EPA published a 

final Phase III rule that established 

categorical regulations for new offshore 

oil and gas extraction facilities that have 

a design intake flow threshold of greater 

than 2 MGD and that withdraw at least 

25 percent of the water exclusively for 

cooling purposes. For most such 

facilities, the rule establishes 

requirements virtually identical to the 

requirements applicable to new 

facilities in the Phase I rule. In the Phase 

III rule, EPA declined to establish 

national standards for Phase III existing 

facilities. Instead it concluded that CWA 

section 316(b) requirements for electric 

generators with a design intake flow of 

less than 50 MGD and all existing 

manufacturing facilities would continue 

to be established on a case-by-case basis 

under the NPDES permit program using 

best professional judgment. (71 FR 

35006). 

3. Rulings by the U.S. Court of Appeals 

for the Second Circuit 

Both the Phase I and Phase II 316(b) 

rules were challenged in the U.S. Court 

of Appeals for the Second Circuit. Key 

aspects of each of these decisions are 

discussed below. 

a. Phase I Rule 

Various environmental and industry 

groups challenged the Phase I 316(b) 

rule. In February 2004, the Second 

Circuit sustained the entire rule except 

for the restoration provision, ruling that 

restoration was not a technology as 

provided for in 316(b). With respect to 

the other provisions of the rule, the 

Court concluded the Phase I rule was 

based on a reasonable interpretation of 

the applicable statute and sufficiently 

supported by the record. Restoration 

provisions of the rule were remanded to 

EPA for further rulemaking consistent 

with the Court’s decision. Riverkeeper, 

Inc. v. EPA, 358 F.3d 174, 191 (2nd Cir., 

2004). Today’s proposal rule would 

remove the restoration provisions from 

the Phase I rule. See Chapter II of this 

preamble for more details. 

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1Rhode Island, Connecticut, Delaware, 

Massachusetts, New Jersey, and New York. 

2There are the following plaintiffs currently: 

Riverkeeper, Inc.; Alex Matthiessen, a/k/a The 

Hudson Riverkeeper; Maya K. Van Rossum, a/k/a 

The Delaware Riverkeeper; Terrance E. Backer, a/ 

k/a The Soundkeeper; John Torgan, a/k/a The 

Narragansett BayKeeper; Joseph E. Payne, a/k/a The 

Casco BayKeeper; Leo O’Brien, a/k/a the San 

Francisco BayKeeper; Sue Joerger, a/k/a The Puget 

Soundkeeper; Steven E. Fleischli, a/k/a The Santa 

Monica BayKeeper; Andrew Willner, a/k/a The 

New York/New Jersey Baykeeper; The Long Island 

Soundkeeper Fund, Inc.; The New York Coastal 

Fishermen’s Association, Inc.; and The American 

Littoral Society, Inc. 

b. Phase II Rule 

Industry, environmental stakeholders, 

and some States 1 challenged many 

aspects of the Phase II regulations. On 

January 25, 2007, the Second Circuit 

(Riverkeeper, Inc. v. EPA, 475 F.3d 83, 

(2d Cir., 2007)) upheld several 

provisions of the Phase II rule and 

decision and remanded others to EPA 

for further rulemaking. 

As noted above, for the final rule EPA 

rejected closed-cycle cooling as BTA. 

Instead, EPA selected a suite of 

technologies to reflect BTA, including 

e.g., screens, aquatic filter barriers, and 

barrier nets. Based on the chosen 

technologies, EPA established national 

performance standards for reducing 

impingement mortality and entrainment 

of fish and fish organisms but did not 

require the use of any specific 

technology. Among the aspects of the 

rule the Second Circuit remanded for 

further clarification was EPA’s decision 

to reject closed-cycle cooling as BTA 

and EPA’s determination of 

performance ranges as BTA. In addition, 

the Second Circuit found that, 

consistent with its Phase I decision, 

restoration was not a technology for 

BTA, and that EPA’s cost-benefit sitespecific compliance alternative was not 

in accord with the Clean Water Act. 

There are also several issues for which 

the court requested additional 

clarification, and some instances where 

the court determined that EPA had 

failed to provide adequate notice and 

opportunity to comment on certain 

provisions of the rule. 

4. EPA Suspension of the Phase II Rule 

As a result of the decision of the 

Second Circuit Court of Appeals in 

Riverkeeper, Inc. v. EPA, 475 F.3d 83, 

(2d Cir., 2007), EPA, on July 9, 2007 (72 

FR 37107) suspended the requirements 

for cooling water intake structures at 

Phase II existing facilities, pending 

further rulemaking. Specifically, EPA 

suspended the provisions in 

§ 122.21(r)(1)(ii) and (5), and part 125 

Subpart J, with the exception of Sec. 

125.90(b). EPA explained that 

suspending the Phase II requirements 

was an appropriate response to the 

Second Circuit’s decision, and that such 

action would allow it to consider how 

to respond to the remand. In addition, 

suspending the Phase II rule was 

responsive to the concerns of the 

regulated community and permitting 

agencies, both of whom sought guidance 

regarding how to proceed in light of the 

approaching deadline of the remanded 

rule. EPA’s suspension clarified that 

pending further rulemaking, permit 

requirements for cooling water intake 

structures at Phase II facilities should be 

established on a case-by-case, best 

professional judgment (BPJ) basis (see 

125.90(b)). 

5. Ruling by the U.S. Supreme Court 

Following the Phase II decision in the 

Second Circuit, several industry group 

litigants petitioned the U.S. Supreme 

Court to hear an appeal regarding 

several issues in the case. Entergy Corp. 

et al. v. EPA, S. Ct. No. 07–588, et al. 

On April 14, 2008, the Supreme Court 

granted the petitions for writs of 

certiorari submitted by these Phase II 

litigants, but limited its review to the 

issue of whether section 316(b) 

authorizes EPA to compare costs with 

benefits in determining BTA for cooling 

water intake structures. The Supreme 

Court held oral arguments in this case 

on December 2, 2008, and issued a 

decision on April 1, 2009. The Supreme 

Court held that it is permissible for EPA 

to rely on cost-benefit analysis in 

decision making for setting the Phase II 

national performance standards, and in 

providing for cost-benefit variances 

from those standards as part of the 

Phase II regulations. The Court 

indicated that the phrase ‘‘best 

technology available for minimizing 

adverse environmental impact’’ does not 

unambiguously preclude use of costbenefit analysis in decision making. The 

ruling supports EPA’s discretion to 

consider costs and benefits, but imposes 

no obligation on the agency to do so. 

6. Ruling by the U.S. Court of Appeals 

for the Fifth Circuit 

In 2009, EPA petitioned the Fifth 

Circuit to remand the existing facility 

portion of the Phase III rule. 

Specifically, EPA requested remand of 

those provisions in the Phase III rule 

that establish 316(b) requirements at 

electric generators with a design intake 

flow of less than 50 MGD, and at 

existing manufacturing facilities, on a 

case-by-case basis using best 

professional judgment. This request did 

not affect the Phase III rule requirements 

that establish categorical regulations for 

new offshore oil and gas extraction 

facilities that have a design intake flow 

threshold of greater than 2 MGD and 

that withdraw at least 25 percent of the 

water exclusively for cooling purposes. 

On July 23, 2010, the U. S. Court of 

Appeals for the Fifth Circuit issued a 

decision regarding the Phase III rule. 

The Court granted EPA’s motion to 

remand the rule with respect to existing 

facilities. In addition, the Fifth Circuit 

affirmed the portion of the rule that 

regulated cooling water intake 

structures for new offshore oil and gas 

facilities. In sustaining these 

requirements, the Fifth Circuit upheld 

EPA’s decision not to use cost benefit 

balancing in determining the 

requirements for these new facilities. 

This was in accord with the discretion 

afforded by 316(b) and affirmed by the 

Supreme Court, namely that EPA 

properly interpreted section 316(b) as 

authorizing, but not requiring, the 

Agency to consider costs and benefits in 

its decision making. 

7. Settlement of Litigation in U.S. 

District Courts 

On January 19, 1993, a group of 

individuals and environmental 

organizations 2 filed, under section 

505(a)(2) of the CWA, 33 U.S.C. 

1365(a)(2), a complaint in Cronin, et. al. 

v. Reilly, 93 Civ. 314 (LTS)(S.D.N.Y.). 

The plaintiffs alleged that EPA had 

failed to perform a non-discretionary 

duty to issue regulations implementing 

section 316(b) of the CWA, 33 U.S.C. 

1326(b). In 1995, EPA and the plaintiffs 

executed a consent decree in the case 

that provided for EPA to implement 

section 316(b) of the CWA by prescribed 

dates in the three separate rulemaking 

proceedings described above. In late 

2002, the district court entered an 

amended consent decree that modified 

the schedule for the Phase II and Phase 

III rulemakings for existing facilities. 

On November 17, 2006, some of the 

same environmental organizations in 

the Cronin case filed a second 

complaint, amended on January 19, 

2007, in Riverkeeper, et al. v. EPA, 06 

Civ. 12987 (S.D.N.Y.). Here, the 

plaintiffs alleged that EPA failed to 

perform a non-discretionary duty under 

section 316(b) of the CWA in its final 

regulation covering the Phase III 

facilities, and also had violated sections 

706(2)(A) and 706(2)(C) of the 

Administrative Procedure Act (APA) in 

the manner in which it had made that 

decision. 

Earlier, the same plaintiffs had also 

petitioned for review of the Phase III 

rule in the U.S. Court of Appeals for the 

Second Circuit. This and other petitions 

for review were consolidated for hearing 

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in the U.S. Court of Appeals for the 

Fifth Circuit. Conoco Phillips v. EPA 

(5th Cir. No. 06–60662). Following the 

Supreme Court decision in Entergy, 

EPA, Riverkeeper and others requested 

remand of the regulation to allow EPA 

to reconsider its decisions regarding 

Phase III facilities in light of more recent 

technical information and recent court 

decisions. As noted above, on July 23, 

2010, the Fifth Circuit granted the joint 

motion of EPA and environmental 

petitioners for a voluntary remand. On 

September 3, 2010, one of the industry 

petitioners filed a petition asking the 

Fifth Circuit panel to rehear its grant of 

the motion to remand. 

On August 14, 2008, EPA filed a 

motion to terminate the Cronin 

proceeding because it had discharged its 

obligations (‘‘to take final action’’) under 

the decree with respect to the Phase II 

and III rulemakings. The plaintiffs in 

Cronin asserted that EPA had not 

discharged its obligations under the 

second amended decree because the 

Second Circuit remanded core 

provisions of the 316(b) rule for existing 

power plants to EPA, and EPA had 

suspended the Phase II rule. In the 

Riverkeeper proceeding, on February 7, 

2007, EPA moved to dismiss arguing 

that the district court lacked jurisdiction 

to hear the challenge to the Phase III 

rule. 

EPA entered into a settlement with 

the plaintiffs in both lawsuits. Under 

the settlement agreement, EPA agreed to 

sign a notice of a proposed rulemaking 

implementing section 316(b) of the 

CWA at existing facilities no later than 

March 14, 2011 and to sign a notice 

taking final action on the proposed rule 

no later than July 27, 2012. Plaintiffs 

agreed to seek dismissal of both their 

suits, subject to a request to reopen the 

Cronin proceeding in the event EPA 

failed to meet the agreed deadlines. The 

district courts have now entered orders 

of dismissal. On March 11, 2011, the 

parties agreed to an amendment to the 

settlement agreement to extend the date 

for proposal to March 28, 2011. 

II. Proposed Amendments Related to 

the Phase I Rule 

EPA is proposing several limited 

changes to the Phase I rule at 40 CFR 

subpart I. The changes fall into two 

categories. The first is deletion of the 

provision in the rule that would allow 

a facility to demonstrate compliance 

with the Phase I BTA requirements in 

whole or in part through restoration 

measures. The proposed change 

responds to the decision of the U.S. 

Court of Appeals for the Second Circuit 

which remanded these provisions to 

EPA because it concluded the statute 

did not authorize restoration measures 

to comply with section 316(b) 

requirements. The second category of 

changes reflects technical corrections or 

errors that do not change the substance 

of the current Phase I rule. EPA is not 

reopening any other aspects of the Phase 

I rule other than the provisions 

specifically noted here. 

A. Restoration Provisions Not 

Authorized 

As discussed above in Section I.C.2, 

the Phase I final rule established two 

compliance tracks. Track I requires 

facilities to restrict intake flow and 

velocity. Track II gives a facility the 

option of demonstrating to the Director 

that the control measures it employs 

will reduce the level of adverse 

environmental impact to a comparable 

level to what would be achieved by 

meeting the Track I requirements. As 

part of this demonstration, Track II 

allows a facility to make use of 

restoration measures. The 

Comprehensive Demonstration Study 

allowed a quantitative or qualitative 

demonstration that restoration measures 

would meet, in whole or in part, the 

performance levels of Track I. Similarly, 

the Verification Monitoring Plan could 

be tailored to verify that the restoration 

measures would maintain the fish and 

shellfish in the waterbody at a 

substantially similar level to that which 

would be achieved under Track I. See 

65 FR 65280–65281. 

As discussed in Section I.C.3, the 

Second Circuit concluded 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. 

The Supreme Court did not grant the 

petitions for writs of certiorari 

concerning restoration provisions. Thus 

in EPA’s view the Agency is bound by 

the Second Circuit decision. Today’s 

proposed rule proposes to amend Phase 

I to remove those provisions in 

§ 125.84(d) and 125.89(b)(1)(ii) 

authorizing restoration measures. This 

proposed rule also specifically proposes 

deletion of application requirements 

contained in the Comprehensive 

Demonstration Study at 

§ 125.86(c)(2)(ii); evaluation of proposed 

restoration measures at 

125.86(c)(2)(iv)(C); and verification 

monitoring requirements at 

125.86(c)(2)(iv)(D)(2)) that are specific to 

restoration. EPA acknowledges these 

changes may reduce the alternatives 

available to some Phase I facilities. 

However, EPA notes that the deletion of 

restoration measures does not otherwise 

alter the availability of Track II. In any 

event, EPA’s determination of BTA for 

Phase I did not presume reliance on the 

restoration provisions, and the deletion 

of restoration measures in no way alters 

the Agency’s BTA determination for 

Phase I facilities. 

B. Corrections to Subpart I 

Today’s proposed rule proposes to 

change the applicability statement at 

125.81(a)(3) to match the applicability 

of the technical requirements at 125.84 

and application requirements at 125.86. 

The applicability in all three instances 

should specify design intake flow or 

withdrawals ‘‘greater’’ than the specified 

value of 2 MGD. See Basis for the Final 

Regulation at 66 FR 65270. 

Today’s proposed rule also proposes a 

correction to the source waterbody flow 

information submission requirements. 

Track I requirements at 125.84(b)(3) 

apply to new facilities that withdraw 

equal to or greater than 10 MGD. Track 

I requirements at 125.84(c)(2) apply to 

facilities that withdraw less than 10 

MGD. The source waterbody flow 

information under 125.86(b)(3) requires 

a facility to demonstrate it has met the 

flow requirements of both 125.84(b)(3) 

‘‘and’’ 125.84(c)(2). However, a facility 

cannot be subject to both 125.84(b)(3) 

and 125.84(c)(2) at the same time. 

Accordingly, the word ‘‘and’’ should 

read as ‘‘or’’ in 125.86(b)(3). 

In addition, today’s proposed rule 

proposes corrections to the application 

requirement for the Source Water 

Biological Characterization at 

122.21(r)(4). Accordingly, references to 

the Source Water Biological 

Characterization should read as (r)(4). 

However, the references to the Source 

Water Biological Characterization at 

125.86(b)(4)(iii), at 125.87(a), and at 

125.87(a)(2) incorrectly refer to 

122.21(r)(3) and are thus being 

corrected. 

III. What New Information Has EPA 

Obtained or Developed in Support of 

This Proposed Rule? 

In developing the Phase I, Phase II, 

and Phase III rules, EPA collected and 

analyzed a substantial amount of 

information regarding cooling water 

intake structures, their biological 

impacts, available technologies to 

reduce those impacts, and other relevant 

subjects. EPA considered a sizable 

volume of material submitted during 

previous public comment periods, as 

well as additional data from 

stakeholders, industry groups, 

technology vendors, and environmental 

organizations since those comment 

periods. Many of the materials are 

summarized or discussed in the 

preambles to these regulations or in the 

administrative record for these rules 

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3 IPM analyses do not predict all units with 

capacity utilization rates of less than 35% would 

close as a result of a closed-cycle cooling retrofit. 

Thus the total loss in capacity under EPA’s Option 

2 would be 14,418 MW or 1.3% of existing capacity. 

4The report assumes the total energy penalty of 

4 percent is a constant; EPA believes the energy 

penalty is reduced over time as units replace, 

repower, or make other modifications such as 

condenser replacement that would eliminate the 

turbine backpressure. 

5EPRI’s site-specific evaluation of 82 facilities 

provides an average capital cost of $275 per GPM, 

but the EEI report uses $319 per GPM. 

(see, e.g., docket numbers W–00–03, 

OW–2002–0049, and EPA–OW–2004– 

0002). Today’s proposal is based on data 

and information contained in the 

records supporting the Phase I, Phase II, 

and Phase III rulemakings, as well as 

new information. This section 

summarizes new data collected since 

the promulgation of the Phase III rule in 

June 2006; it will not review or 

summarize previous data collection 

efforts except to frame discussions about 

the new data. For information on EPA’s 

historic data collection efforts, refer to 

the preambles and records for the three 

rules (see, e.g., 65 FR 49070, 66 FR 

28854, 68 FR 17131, 68 FR 13524, 69 FR 

41593, 69 FR 68457, and 70 FR 71059). 

A. Additional Data 

EPA has supplemented the existing 

documents with additional information 

as summarized below. 

1. Site Visits 

As documented in the suspended 

2004 Phase II rule, EPA conducted site 

visits to 22 power plants in developing 

the 2004 rule. See 67 FR 17134. Since 

2007, EPA has conducted over 50 site 

visits to power plants and 

manufacturing sites. The purpose of 

these additional visits was to: Gather 

information on the intake technologies 

and cooling water systems in place at a 

wide variety of existing facilities; better 

understand how the site-specific 

characteristics of each facility affect the 

selection and performance of these 

systems; gather performance data for 

technologies and affected biological 

resources; and solicit perspectives from 

industry representatives. EPA used a 

number of criteria in selecting the sites 

to visit, including those sites 

representing a variety of geographical 

locations and different types of intakes, 

and sites that already had an 

impingement or entrainment technology 

in place for which the facility had 

collected performance data. EPA also 

asked trade associations to recommend 

sites facing unique circumstances that 

may affect the adoption of certain 

control technologies. EPA also collected 

information on 7 additional facilities 

that staff did not physically visit; 

usually, these were other facilities 

owned by the parent company of a site 

visited by EPA. EPA also held 

conference calls or met with 

representatives of other sites at EPA’s 

Washington, DC location. 

Copies of the site visit reports (which 

provide an overall facility description as 

well as detailed information such as 

electricity generation, the facility’s 

cooling water intake structure and 

associated fish protection and/or flow 

reduction technologies, impingement 

and/or entrainment sampling and 

associated data, and a discussion of the 

possible application of cooling towers) 

for each site are provided in the docket 

for the proposed rule. In addition, in 

response to stakeholder inquiries, EPA 

made these site reports publicly 

available well before publication of the 

proposed rule. A list of the facilities 

visited by EPA is provided in the TDD. 

2. Data Provided to EPA by Industrial, 

Trade, Consulting, Scientific or 

Environmental Organizations or by the 

General Public 

EPA has continued to exchange 

information with various stakeholders 

in the development of today’s proposal. 

EPA met several times with Electric 

Power Research Institute (EPRI), Edison 

Electric Institute, Nuclear Energy 

Institute, and Utility Water Act Group, 

along with other representatives from 

facilities and affected industries on 

topics including the latest 

advancements in fish protection 

technologies, permit experience, and the 

feasibility and cost of installing 

technologies at certain types of 

facilities. 

In 2010, the North American Electric 

Reliability Corporation (NERC) issued a 

reliability study and found potentially 

substantial reliability effects under a 

316(b) rule scenario that would require 

closed-cycle cooling of all large power 

plants. See Potential Resource 

Adequacy Impacts of U.S. 

Environmental Regulations. October 

2010. The scenario assumes all existing 

steam units with a capacity utilization 

factor of less than 35% would close,3

and assumes all in-scope electric 

generators would be required to install 

cooling towers within a 5-year window. 

While the report’s focus was on energy 

reliability and reflects a regulatory 

scenario that is not directly comparable 

to any of the options explored for 

today’s proposed rule, the report 

nevertheless serves as a useful upper 

bound estimate of (1) the potential for 

premature generating unit retirements to 

avoid the costs of retrofitting existing 

cooling water intake systems and (2) 

increased power needs as a result of a 

capacity derating (i.e., the energy 

penalty 4). 

The Edison Electric Institute 

published a study of the combined 

impact of EPA’s upcoming air, water 

(316(b)), and solid waste rulemakings on 

the coal fired fleet of power plants. See 

Potential Impacts of Environmental 

Regulation on the U.S. Generation Fleet 

Final Report. January 2011. As with the 

NERC study, conservative assumptions 

were made about EPA rules yet to be 

proposed or promulgated. The report 

summarizes reductions in capacity, but 

does not distinguish how much of that 

capacity was unused in the baseline 

scenario. Conservative costing 

assumptions such as 21 percent higher 

average costs,5 and application of full 

retrofit costs to new capacity (instead of 

incremental costs for installing required 

technology at new construction) gives 

results that are not comparable to any of 

the options explored for today’s 

proposed rule. While this study 

analyzed multiple scenarios, each 

scenario combines the effects of 

multiple rules so that the impact of the 

section 316(b) rule alone could not be 

determined. Even so, the report 

provides useful insight on the potential 

impact of multiple rulemakings if each 

EPA rule was promulgated at the level 

of stringency assumed in the study. 

EPA met with Riverkeeper and other 

environmental groups to discuss the 

progress of the revisions to the rule, 

advances in fish protection 

technologies, state programs, 

environmental issues associated with 

cooling water withdrawals, and the 

feasibility of closed-cycle cooling. 

Through these interactions, EPA has 

received additional data and 

information including, but not limited 

to: Efficacy data, operating information, 

cost information, feasibility studies, 

environmental impacts, and non-water 

quality related impact information for 

various candidate BTA technologies. 

3. Other Resources 

EPA also collected information on 

cooling water intake structure-related 

topics from a variety of other sources, 

such as state and international policies. 

For example, the California Office of 

Administrative Law approved the 

‘‘Policy on the Use of Coastal and 

Estuarine Waters for Power Plant 

Cooling’’ on September 27, 2010, which 

requires that all coastal power plants 

reduce their intake flow to a level 

commensurate with closed-cycle 

cooling. The Delaware state legislature 

passed a resolution that urges the 

Delaware Department of Natural 

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6See http://www.epa.gov/ne/braytonpoint/ 

index.html. 

Resources and Environmental Control 

(DNREC) to consider closed-cycle 

cooling as BTA and to require closedcycle cooling at all facilities. The New 

York Department of Environmental 

Conservation (DEC) released a draft 

policy in March 2010 that would require 

flow reduction equivalent to closedcycle cooling at all existing facilities 

that withdraw more than 20 MGD as 

part of the state’s plan to restore the 

Hudson River. Additional examples of 

state programs are discussed further in 

the TDD. 

In addition to state-wide cooling 

water policies, some recent individual 

NPDES permits have incorporated 

requirements for significant reductions 

in cooling water flow. For example, EPA 

Region I (which develops NPDES 

permits for several non-delegated New 

England states) issued a final NPDES 

permit in October 2003 that required 

Brayton Point in Somerset, 

Massachusetts to reduce cooling water 

intake flow and thermal discharges 

approximately 95 percent.6 Brayton is 

currently constructing two natural draft 

cooling towers at the facility. New 

Jersey, as part of its policy for protecting 

marine life from the adverse impacts 

created by power plants, issued a draft 

permit for Oyster Creek that would 

require closed-cycle cooling, and is 

studying closed-cycle cooling for two 

units at Salem Generating Station. Other 

examples are documented in site visit 

reports found in the record for today’s 

proposed action. 

Electric generators are the subject of 

several rulemaking efforts that either are 

or will soon be underway. In addition 

to this rulemaking proposal, this 

includes regulation under section 

110(a)(2)(D) of the Clean Air Act (CAA) 

addressing the interstate transport of 

emissions contributing to ozone and PM 

air quality problems, coal combustion 

wastes, hazardous air pollutants under 

CAA section 112, and criteria pollutant 

NSPS standards under CAA section 111. 

They will also soon be the subject of a 

rulemaking under CAA section 111 

concerning emissions of greenhouse 

gases. EPA recognizes that it is 

important that each and all of these 

efforts achieve their intended 

environmental objectives in a commonsense manner that allows the industry to 

comply with its obligations under these 

rules as efficiently as possible and to do 

so by making coordinated investment 

decisions and, to the greatest extent 

possible, by adopting integrated 

compliance strategies. In addition, EO 

13563 states that ‘‘[i]n developing 

regulatory actions and identifying 

appropriate approaches, each agency 

shall attempt to promote such 

coordination, simplification, and 

harmonization. Each agency shall also 

seek to identify, as appropriate, means 

to achieve regulatory goals that are 

designed to promote innovation.’’ Thus, 

EPA recognizes that it needs to 

approach these rulemakings, to the 

extent that its legal obligations permit, 

in ways that allow the industry to make 

practical investment decisions that 

minimize costs in complying with all of 

the final rules, while still achieving the 

fundamentally important environmental 

and public health benefits that the 

rulemakings must achieve. The Agency 

expects to have ample latitude to set 

requirements and guidelines in ways 

that can support the states’ and 

industry’s efforts in pursuing practical, 

cost-effective and coordinated 

compliance strategies encompassing a 

broad suite of its pollution-control 

obligations. 

B. Implementation Experience 

Following promulgation of the 2004 

Phase II rule, states and EPA Regions 

began to implement the rule. During 

that time, EPA worked to assist states in 

understanding the rule requirements, 

develop guidance materials, and 

support review of the documentation of 

the new requirements. As a result, EPA 

became aware of certain elements of the 

2004 rule that were particularly 

challenging or time-consuming to 

implement. In developing today’s 

proposed rule, EPA has considered 

these challenges and crafted a revised 

regulatory framework that the Agency 

believes is easier for all stakeholders to 

understand and implement. Some of the 

key changes are described below. 

1. Calculation Baseline 

The 2004 Phase II rule required that 

facilities reduce impingement mortality 

and entrainment from the calculation 

baseline. The calculation baseline was 

intended to represent a ‘‘typical’’ Phase 

II facility and outlined a configuration 

for a typical CWIS. (See 69 FR 41590.) 

EPA defined the calculation baseline as 

follows: 

an estimate of impingement mortality and 

entrainment that would occur at your site 

assuming that: the cooling water system has 

been designed as a once-through system; the 

opening of the cooling water intake structure 

is located at, and the face of the standard 3⁄8

inch mesh traveling screen is oriented 

parallel to, the shoreline near the surface of 

the source waterbody; and the baseline 

practices, procedures, and structural 

configuration are those that [a] facility would 

maintain in the absence of any structural or 

operational controls, including flow or 

velocity reductions, implemented in whole 

or in part for the purposes or reducing 

impingement mortality and entrainment. 

Under this approach, a facility that 

had undertaken efforts to reduce 

impingement and entrainment impacts 

(e.g., by installing a fine mesh screen or 

reducing intake flow) would be able to 

‘‘take credit’’ for its past efforts and only 

be required to incrementally reduce 

impingement mortality or entrainment 

to meet the performance standards. 

In practice, both permittees 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 sitespecific configuration or operations 

compared to the calculation baseline. 

For facilities whose site configuration 

conforms to the calculation baseline, it 

was relatively easy to determine 

impingement mortality and entrainment 

at the conditions representing the 

calculation baseline. However, for 

facilities that have a different 

configuration, estimating a hypothetical 

calculation baseline could be difficult. 

For example, facilities with intake 

configuration that differed significantly 

from the calculation baseline (e.g., a 

submerged offshore intake) were unsure 

as to how to translate their biological 

and technological data to represent the 

calculation baseline (a shoreline CWIS). 

Oftentimes facilities encountered 

difficulty in determining the 

appropriate location for monitoring to 

take place. Other facilities were unsure 

as to how to take credit for retired 

generating units and other flow 

reductions practices. In site visits, EPA 

learned that facilities with little or no 

historical biological data encountered a 

particularly difficult and time-intensive 

task of collecting appropriate data and 

developing the calculation baseline. For 

example, EPA found that for some sites 

impingement was very difficult to 

convert into a baseline, as facilities 

needed to predict which fish would be 

impinged and then further estimate 

which of those impinged organisms 

survived. As a result, EPA has 

developed a new approach to the 

technology-based requirements 

proposed today that does not use a 

calculation baseline. 

2. Entrainment Exclusion Versus 

Entrainment Survival 

As EPA worked towards revising the 

existing facility rules, EPA discovered a 

nuance to the performance based 

requirements of the 2004 Phase II rule: 

Entrainment exclusion versus 

entrainment survival. As discussed in 

section III.C below, EPA re-reviewed the 

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7 In the case of many soft-bodied organisms such 

as eggs and larvae, the force of the intake flow can 

be sufficient to bend organisms that are actually 

larger than the screen mesh and pull them into the 

cooling system. 

8Eggs are generally smaller than 2 millimeters in 

diameter, while larvae head capsids are much more 

variable in size, increasing as they mature to the 

juvenile stage. 

9Fine mesh screens were considered to be one 

technology that could be used to meet the 

entrainment performance standards under the 2004 

Phase II rule. EPA also reviewed performance data 

for screens with mesh sizes as small as 0.5 mm, as 

described in section III.C. 

10Through-plant entrainment survival has been 

studied extensively, with EPRI’s Review of 

Entrainment Survival Studies being amongst the 

most comprehensive. See DCN 2–017A–R7 from the 

Phase I docket. 

11There is a form of ‘‘cost-cost variance’’ for new 

units at existing facilities, comparable to the 

provision in Phase I for new facilities. See further 

discussion below. 

12The Phase II rule found impingement mortality 

(plus entrainment exclusion on certain waterbodies) 

was economically achievable; EPA has not 

identified any reason for revising this conclusion. 

See 69 FR 41603. 

data on the performance of intake 

technologies and conducted statistical 

analysis of the data. From this analysis, 

it became apparent that the 2004 Phase 

II rule did not fully consider the true 

performance of intake technologies in 

affecting ‘‘entrainable’’ organisms. 

By definition, entrainment is the 

incorporation of aquatic organisms into 

the intake flow, which passes through 

the facility and is then discharged. In 

order to pass through the technologies 

located at the CWIS (e.g., intake screens, 

nets, etc.), the organisms must be 

smaller than the smallest mesh size.7

For coarse mesh screens (3/8′′ mesh 

size), most ‘‘entrainables’’ simply pass 

through the mesh (and through the 

facility) with only some contact with the 

screen.8 In this situation the mortality of 

organisms passing through the facility 

was assumed to be 100 percent. 

However, as mesh sizes are reduced,9

more and more entrainables will 

actually become impinged on the 

screens (i.e., ‘‘converted’’ from 

entrainable to impingeable) and would 

then be subjected to spray washes and 

returned along with larger impinged 

organisms as well as debris from the 

screens. Under the 2004 Phase II rule, 

these ‘‘converts’’ would be classified as 

a reduction in entrainment, since the 

entrainment performance standard 

simply required a reduction in the 

number (or mass) of entrained 

organisms entering the cooling system. 

However, for some facilities the low 

survival rate of converts resulted in the 

facility having difficulty complying 

with the impingement mortality 

limitations. By comparison, the 

performance standard for impingement 

was measured as impingement 

mortality. Organisms that were 

impinged (i.e., excluded) from the CWIS 

were typically washed into a return 

system and sent back to the source 

water. In this case, impingement 

mortality is an appropriate measure of 

the biological performance of the 

technology. 

Through EPA’s review of control 

technologies, the Agency found that the 

survival of ‘‘converts’’ on fine mesh 

screens was very poor, and in some 

extreme cases comparable to the 

extremely low survival of entrained 

organisms that are allowed to pass 

entirely through the facility.10 More 

specifically, EPA found that nearly 100 

percent of eggs were entrained unless 

the mesh slot size was less than 2 mm, 

and mortality of eggs ‘‘converted’’ to 

impingement ranged from 20 to 30 

percent. Further, the mortality of larvae 

collected from a fine mesh screen was 

usually greater than 80 percent. As a 

result, a facility with entrainment 

exclusion technologies such as fine 

mesh screens could approach 90 percent 

performance, but the subsequent 

survival of eggs and larvae combined 

ranged from 0 to 52 percent (mean value 

of 12 percent survival) depending on 

life stage and species, and the facility’s 

impingement mortality rates increased. 

In other words, a facility that simply 

excluded entrainable organisms (with 

no attention being paid to whether they 

survive or not) could be deemed to have 

met its entrainment requirements under 

the 2004 Phase II rule, when in fact it 

may be causing the same level of 

mortality as a facility with no 

entrainment controls at all. EPA’s 

current review of entrainment and 

entrainment mortality shows the same 

trends identified in the research reviews 

by EPRI (2003), namely that entrainment 

decreases with increasing larval length, 

increased sweeping flow, decreasing 

slot (intake) velocity, and decreasing 

slot width. In other words, by using 

screens with finer mesh, entrainment 

mortality can be converted to 

impingement mortality without 

necessarily protecting any more aquatic 

organisms. 

3. Cost-Cost Test 

In the 2004 Phase II rule, EPA 

developed facility-specific cost 

estimates, and published those costs in 

Appendix A (69 FR 41669). The 2004 

Phase II rule also included a cost-cost 

test (see 69 FR 41644) where a facility 

could demonstrate that its costs to 

comply with the 2004 rule were 

significantly greater than those that EPA 

had considered. Since initial 

implementation of the July 9, 2004 

316(b) Phase II rule, EPA has identified 

several concerns with the facilityspecific costs listed in Appendix A and 

their use in the cost-cost test. First, EPA 

has identified numerous inconsistencies 

between facility permit applications, 

responses in the facility’s 316(b) survey, 

and overall plant capacity as reported in 

the most recent EIA database. These 

inconsistencies resulted in Appendix A 

costs that were different from the 

facility’s own compliance cost estimates 

due to inconsistencies in the underlying 

parameters used to estimate these costs. 

In addition, as described more fully in 

Chapter 2 of this proposal’s Technical 

Development Document, EPA does not 

have available technical data for all 

existing facilities. EPA obtained the 

technical data for facilities through 

industry questionnaires. In order to 

decrease burden associated with these 

questionnaires, EPA requested detailed 

information from a sample, rather than 

a census, of facilities. EPA has thus 

concluded that the costs provided in 

Appendix A are not appropriate for use 

in a facility-level cost-cost test. 

Moreover, for most of the national 

requirements EPA is proposing here, a 

cost-cost variance is not necessary for 

the reasons described below. As a result, 

EPA is not providing a framework 

similar to Appendix A in today’s 

proposed rule.11 (See section III.C below 

and VII for more information about how 

EPA developed compliance costs.) 

First, the impingement mortality 

requirements of today’s proposed rule 

are economically achievable,12 and the 

low variability in the costs of 

impingement mortality controls at a 

facility makes such a provision 

unnecessary. Second, a cost-cost 

variance is not necessary for 

entrainment mortality requirements 

because the costs of various 

requirements are a factor considered in 

each site-specific determination. Under 

the national rule, entrainment 

requirements would be established on a 

facility specific basis, except in the case 

of new units at an existing facility, 

which are subject to standards based on 

closed-cycle cooling or its equivalent. In 

the facility-specific process proposed 

today for entrainment mortality, a 

facility would be required to submit 

facility-specific compliance cost 

estimates. The determination of whether 

the cost of specific entrainment 

mortality technologies is too high is 

made by the Director on a case-by-case 

basis and accordingly a cost-cost 

provision is unnecessary for these 

facilities. However, consistent with the 

Phase I rule, EPA has included a 

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13There were insufficient numbers of studies 

specifically looking at entrainment mortality or 

entrainment survival, therefore EPA broadened the 

review to include any measure of entrainment. 

14Holding times beyond 48 hours often result in 

mortality due to holding conditions rather than 

mortality due to impingement. 

provision for new units at existing 

facilities that the Director may establish 

less stringent alternative requirements 

for a facility if compliance with the 

Phase I standards would result in 

compliance costs wholly out of 

proportion to those EPA considered in 

establishing the Phase I requirements or 

would result in significant adverse 

impacts on local air quality, water 

resources other than impingement or 

entrainment, or local energy markets. 

C. New or Revised Analyses 

In addition to collecting new 

information, EPA has re-evaluated some 

existing data and analyses that underlay 

its earlier decisions. The standards of 

the 2004 Phase II regulation required 

impingement mortality reduction for all 

life stages of fish and shellfish of 80 to 

95 percent from the calculation baseline 

(for all Phase II facilities) and 

entrainment reduction requirements of 

60 to 90 percent (for certain Phase II 

facilities). EPA based these performance 

requirements on a suite of technologies 

and compliance alternatives. For today’s 

proposal, EPA has reanalyzed various 

candidate technologies as the basis for 

EPA’s BTA decision. This reanalysis 

includes, but is not limited to, a 

reanalysis of candidate BTA 

technologies, their effectiveness, their 

costs, and their application. This section 

highlights some of the results from this 

reanalysis. See Section VI for a thorough 

discussion of EPA’s updated BTA 

analysis and determination. Based on 

this reanalysis, EPA has reached several 

conclusions. The first is that closedcycle cooling reduces impingement and 

entrainment mortality to the greatest 

extent. The second is that screen 

technologies are significantly less 

effective, particularly in comparison 

with closed-cycle cooling, in reducing 

entrainment mortality than EPA had 

concluded in 2004. Finally, EPA 

determined that while none of the 

reviewed technologies cause 

unacceptable energy reliability 

concerns, particulate emission 

increases, or adverse economic impacts 

at the national level, the performance 

and availability of some technologies 

varies widely depending on local 

factors, and these issues could be a 

significant concern at individual sites. 

1. Revised Performance Database 

In its Section 316(b) rule development 

efforts to date, EPA has gathered 

industry documents and research 

publications with information from 

studies which evaluated the 

performance of a range of technologies 

for minimizing impingement or 

entrainment. As explained in 68 FR 

13538–13539, EPA previously 

developed a Technology Efficacy 

Database in an effort to document and 

assess the performance of various 

technologies and operational measures 

designed to minimize the impacts of 

cooling water withdrawals (see DCN 6– 

5000 in the docket for the 2004 Phase 

II rule). In support of today’s proposal, 

EPA has updated that performance 

database. In updating the database, 

EPA’s objective was to review the 

methods used to generate data in these 

studies and to combine relevant data 

across studies in order to produce 

statistical estimates of the overall 

performance of each of the technologies. 

In developing the updated database, 

EPA considered data from over 150 

documents. This includes documents 

previously contained in all three phases 

of EPA’s 316(b) rulemaking records as 

well as new documents obtained during 

development of today’s proposal. These 

documents contain information on the 

operation and/or performance of various 

forms and applications of these 

technologies, typically at a specific 

facility or in a controlled setting such as 

a research laboratory. The studies 

presented in these documents were 

performed by owners of facilities with 

cooling water intake structures, 

organizations that represent utilities and 

the electric power industry, and other 

research organizations. EPA established 

two general criteria for using data from 

the documents: (1) The data must be 

associated with technologies for 

minimizing impingement mortality or 

entrainment 13 that are currently viable 

(as recognized by EPA) for use by 

industries with cooling water intake 

structures that are (or will be) subject to 

Section 316(b) regulation; and (2) the 

data must represent a quantitative 

measure (e.g., counts, densities, or 

percentages) that is related to the 

impingement mortality or entrainment 

of some life form of aquatic organisms 

within cooling water intake structures 

under the given technology. 

For studies meeting the above criteria, 

EPA populated a new database. This 

performance study database consisted of 

two primary data tables. The first table 

contains specific information on a 

particular study, such as the document 

and study IDs, facility name, water 

body, data classification (e.g., 

impingement mortality, entrainment), 

technology category, and other test 

conditions when specified (e.g., mesh 

size, intake velocity, flow rate, water 

temperature, conditions when the 

technology is in place, control 

conditions). The second table contains 

the reported performance data for a 

given study. Each row of this table 

contains one or more performance 

measures for a particular species along 

with other factors when they were 

specified (e.g., age category, dates or 

seasons of data collection, water 

temperature, velocity, elapsed time to 

mortality). For one option considered 

for today’s proposed rule, EPA used this 

database in an attempt to revise the 

impingement mortality and entrainment 

limits developed for the Phase II rule. 

However, as described in section VI, the 

performance data for screens and other 

intake technologies indicates that those 

technologies were not very effective at 

minimizing entrainment mortality in 

comparison to closed-cycle cooling. As 

a result, EPA has not included this 

option in today’s proposed rule package. 

2. Impingement Mortality and 

Entrainment Technology Performance 

Estimates 

To evaluate the effectiveness of 

different control technologies and the 

extent to which the various regulatory 

options considered for today’s proposal 

minimize adverse environmental 

impacts associated with cooling water 

intake structures, EPA used the data 

collected in the revised performance 

database to develop impingement 

mortality and entrainment reduction 

estimates associated with each 

technology. For some technologies, this 

proposal reflects updated information or 

a different methodology for estimating 

effectiveness. For impingement 

mortality, EPA focused on 14 studies of 

31 species for traveling screens with 

post-Fletcher modifications and with a 

48 hour 14 or less holding time, and 

found the monthly impingement 

mortality corresponding to the 95th 

percentile was 31 percent mortality. 

EPA’s full analysis of impingement 

mortality limitations may be found in 

Chapter XI of the TDD. EPA found the 

best performance of entrainment 

exclusion for fine mesh screens was 73 

to 82 percent for eggs and 46 to 52 

percent for larvae at 0.5 mm slot sizes. 

The best performance of fine mesh 

screens for entrainment survival (and 

not just exclusion) was 29 to 34 percent, 

with zero survival of eggs and larvae 

under certain conditions. The next 

section further discusses the distinction 

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15EPA found this is a very important distinction 

when reviewing technology efficacy, as some 

studies do not include the smaller, more fragile, and 

often non-motile stages of larvae. Older stages of 

larvae have started to develop avoidance responses, 

and generally have already started developing 

scales and skeletal structures. 

16Some facilities continue to withdraw cooling 

water even when not generating for a variety of 

reasons: to discourage biofouling or mechanical 

seizures, to promote continued water flow, or to 

maintain a state of readiness. Peaking facilities 

(those with a CUR of less than 15percent, 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. 

17EPA also addressed both electric generators and 

manufacturers in the 2000 Phase I proposed rule 

(see, for example, 65 FR 49070). The support 

documents for all three rule phases also provide 

information characterizing the affected industry 

sectors. 

between entrainment exclusion and 

entrainment survival. 

3. Exclusion Technologies 

As discussed in section III.B above, 

screens and other technologies operate 

using a principle of excluding 

organisms from entering the cooling 

system. For technologies other than 

cooling towers, EPA generally 

calculated their efficacy as the mean 

percent efficacy of the available data. 

Because EPA has sufficient data to 

evaluate impingement mortality, its 

impingement mortality technology 

efficacy calculation accounts for 

mortality. However, because EPA has 

data on entrainment exclusion but lacks 

sufficient entrainment mortality data to 

calculate exclusion technology 

entrainment mortality efficacy, EPA’s 

calculated mean entrainment percent 

efficacy does not account for mortality. 

Available data on today’s proposed 

technology basis demonstrate that 

entrainment reductions associated with 

fine mesh technologies vary depending 

on life stage and mesh size. See Section 

VIII and the TDD for additional 

information on EPA’s estimate of 

entrainment reductions for today’s 

proposal. 

In reality, excluding an organism from 

the cooling water intake does not 

minimize entrainment-related adverse 

environmental impacts unless the 

excluded organisms survive and 

ultimately return back to the waterbody. 

In the 2004 Phase II rule, EPA made the 

assumption that any entrainable 

organism which was entrained died 

(i.e., 100 percent mortality for organisms 

passing through the facility) and any 

organism not entrained survived. In 

other words, if a technology reduced 

entrainment by 60 percent, then EPA 

estimated 40 percent of the organisms 

present in the intake water would die in 

comparison to 100 percent in the 

absence of any entrainment reduction. 

As explained in Section VI, while it has 

been conjectured that certain species of 

eggs have been shown to survive 

entrainment under certain conditions, 

EPA has not received any new data for 

either the most common species or the 

most frequently identified species of 

concern described in available studies 

and, as such, has not altered its decision 

that for purposes of national 

rulemaking, entrainment should be 

presumed to lead to 100 percent 

mortality. Today’s proposed rule would 

allow facilities to demonstrate, on a sitespecific basis, that entrainment 

mortality of one or more species of 

concern is not 100 percent. 

For today’s proposal, EPA analyzed 

the limited data on the survivability of 

organisms that are ‘‘converted’’ from 

entrained to impinged on fine mesh 

screens. These data show that under 

most operational conditions, many 

larvae die as a result of the impact and 

impingement on fine mesh screens. In 

the case of eggs, the data indicate that 

some species may die, but some do 

survive. The data also demonstrate that 

if the organisms can withstand the 

initial impingement on the fine mesh 

screen, the majority of entrainable 

organisms survive after passing through 

a fish return and returning to the source 

water. Finally, the data indicate that 

survival increases as the body length 

and age of the larvae increases.15 EPA 

seeks additional data on the 

survivability (or mortality) of organisms 

that are converted from entrained to 

impinged on fine mesh screens. 

4. Application of Requirements Based 

on Capacity Utilization Rate (CUR) and 

Waterbody Type 

In the 2004 Phase II rule, the type of 

performance standard applicable to a 

particular facility (i.e., reductions in 

impingement mortality only or 

impingement mortality and 

entrainment) depended on several 

factors, including the facility’s location 

(i.e., source waterbody), capacity 

utilization rate (CUR) (as an indicator of 

the rate of use), and the proportion of 

the source waterbody withdrawn. 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 in marine 

waters, but the actual density of aquatic 

organisms in some specific fresh water 

systems exceeds that found in some 

marine waters. In other words, there is 

considerable overlap in the range of 

densities found in marine waters and in 

fresh waters. EPA also believes the 

different reproduction strategies of 

freshwater versus marine species makes 

broad characterizations regarding the 

density less valid a rationale for 

establishing different standards for 

minimizing adverse environmental 

impact. 

In re-considering the applicability of 

requirements based on CUR, EPA found 

that even infrequently used facilities 

may still withdraw significant volumes 

of water when not generating electricity. 

EPA also 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, and these operations 

occur frequently during peak summer 

electricity demand, coinciding with 

some of the most biologically sensitive 

portions of the year.16 Accordingly, 

today’s proposed requirements are not 

based on waterbody type or CUR. See 

further discussion in Section VI. 

IV. Revised Industry Description 

Today’s proposed rule applies to all 

existing electric generating and 

manufacturing facilities, except for 

certain water going vessels as described 

in section V. EPA has earlier fully 

described the electricity industry in the 

2002 Phase II proposed rule (see, for 

example, 67 FR 17135) and the 

manufacturing industries in the 2004 

Phase III proposed rule (see, for 

example, 69 FR 68459).17 While these 

general descriptions continue to broadly 

reflect the current state of these 

industries, EPA has revised some of its 

estimates of numbers of facilities, 

intakes, flows, and other pertinent 

information. In particular, this section 

describes those facilities with a cooling 

water intake structure having a DIF of 

greater than 2 MGD, related cooling 

water use in power production and 

manufacturing activities, and an 

overview of the industry sectors in 

scope for today’s proposed rule. See the 

TDD and EA for today’s proposed rule 

for more detailed information including 

industry profiles. 

A. Water Use in Power Production and 

Manufacturing 

Water is used for a wide variety of 

application in the United States. The 

U.S. Geologic Survey (USGS) publishes 

a comprehensive review of water use 

across industry sectors every 5 years. 

The 2005 report indicated that 410 

billion gallons per day (BGD) of water 

are withdrawn for various uses. (See 

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18 Irrigation was the next highest user of water at 

31% of the total withdrawn. 

19 In the Phase I rule, EPA also presented data 

indicating that the combined 316(b) rules for 

electric generators and the largest manufacturing 

sectors would address approximately 99% of all 

cooling water withdrawals in the U.S. See 65 FR 

49071 and the Phase I Economic and Engineering 

Analyses of the Proposed § 316(b) New Facility 

Rule. 

20The thermodynamic laws governing the 

Rankine cycle in power plants requires a heat 

source and a heat sink. The difference in 

temperature and pressure is a major factor in 

maintaining efficiency of the thermal engine. 

Additional reasons for condensing the steam 

include: handling pressure drops in the system, the 

need to remove non-condensable gases before they 

damage equipment, to allow make-up water to be 

added to the system, and to safely allow pumping 

of the water back to the boiler. 

DCN 10–6872.) Of that amount, 

approximately 201 BGD is withdrawn 

by electric generators, primarily for noncontact cooling,18 plus water 

withdrawals by other industrial sites of 

18.2 BGD for a total of 219 BGD. This 

total flow represents the universe of 

flow potentially subject to regulation 

under 316(b), therefore today’s proposed 

rule may address over half of the water 

withdrawals in the entire nation.19

Industrial water use (broadly defined 

as water used by power plants and 

manufacturers) falls generally into one 

of four categories: non-contact cooling 

water, contact cooling water, process 

water, and other water uses. A more 

detailed description of each category 

and how it relates to 316(b) is provided 

below. 

1. Non-Contact Cooling Water 

Power plants and manufacturers 

frequently generate large amounts of 

heat in their industrial processes. Noncontact cooling systems are one of the 

most common techniques used to 

dissipate this heat. In a non-contact 

cooling system, water is pumped 

through a heat exchanger or other 

equipment where it comes into indirect 

contact with heated materials in the 

industrial process. The water absorbs 

heat and is subsequently discharged (in 

a once-through cooling system) or 

recirculated (in a closed-cycle system). 

In these systems, the cooling water does 

not come into contact with any 

industrial materials, equipment or 

processes; the cooling water is 

contained within the cooling system for 

heat absorption and generally requires 

very little treatment (except heat 

removal) before discharge. 

At power generators, non-contact 

cooling is by far the largest water use. 

Approximately three quarters of the 

total annual electricity output in the 

United States results from steam 

powered turbines. Power plants heat 

water inside a boiler. The water is 

turned to steam, at which point the 

temperature of the steam can be 

increased with further heating, allowing 

additional energy to be stored in the 

steam. The steam is then used to spin 

a turbine, producing electricity. The 

steam must then be condensed and 

returned to the boiler.20 Non-contact 

cooling water is used to extract heat and 

return the steam to water in a 

condenser. The water can then be 

pumped back to the boiler for heating to 

repeat the cycle. Consistent with 

engineering theory, there are limits to 

the maximum efficiency of a thermal 

plant. Thermal power plants are 

actually not very efficient at converting 

fuel to electricity; only 30 to 60 percent 

of the fuel is captured as electricity, 

with the higher efficiency units relying 

on further use of the steam for further 

heating (usually referred to as 

cogeneration) or energy purposes (such 

as combined cycle power generators or 

other process warming). Depending on 

the type of generating unit, roughly onethird to two-thirds of the total energy 

generated is lost in the form of heat that 

must be subsequently dissipated. 

At manufacturers, non-contact cooling 

is also a significant component of water 

use. Some manufacturers have electric 

generating units which generally 

operate in the same manner as 

summarized above. In some cases, 

virtually all of the manufacturing 

facility’s cooling water withdraws are 

for power production. In contrast to 

power generators, some manufacturing 

facilities also need a reliable source of 

high pressure steam for manufacturing 

processes. Other manufacturers may 

need to condense steam generated from 

other processes, or may need to extract 

heat from a raw or processed material 

(e.g., to reduce the temperature of an 

intermediate petroleum or chemical 

product before it enters a subsequent 

processing stream). Some facilities 

engage in testing or research, and have 

cooling needs for these activities. 

2. Contact Cooling Water 

Contact cooling water differs from 

non-contact cooling in that contact 

cooling systems use cooling water in 

direct contact with the hot equipment or 

heated materials. As a result, contact 

cooling water may intermingle with 

industrial products or equipment and 

often will take up pollutants other than 

heat, such as oil and grease or metals. 

Contact cooling water often requires 

treatment for these pollutants before it 

may be discharged. 

In power plants, cooling water may be 

used for contact cooling of pumping 

equipment, such as the cooling water 

pump bearings. Contact cooling water is 

more frequently needed by 

manufacturing processes, such as 

quench water (e.g., water into which 

bars of hot metal are dipped for rapid 

cooling or control of the formed metal 

temperature), mechanical pulping, 

forming and molding processes, food 

and agricultural products, and 

petrochemical gas quenching. 

3. Process Water 

Process water is water that is used 

directly in an industrial process. While 

steam electric plants do have some 

process water, process water is more 

typically associated with manufacturers, 

as the primary industrial process at 

power plants (electricity generation) is 

usually cooled with non-contact cooling 

water. Examples of process water 

include water used to break down wood 

pulp in a paper mill, water that is used 

in creating consumer products such as 

beverages or personal care products, 

water added to facilitate transportation 

of materials within a manufacturing 

process, water needed as a raw material, 

and water used in numerous chemical 

separations processes. Process water 

may be used as an ingredient in the 

intermediate products, consumed by the 

products, lost to evaporation, extracted 

later in the process line for treatment 

and discharge, or further reused. 

EPA has found through site visits, 

extensive experience with 

manufacturing water use in the 

development of previous effluent 

guidelines, and a general review of 

water uses by manufacturing processes 

that a significant amount of reduction, 

reuse, and recycling has already 

occurred in most manufacturing 

processes, in part due to pretreatment 

standards and NPDES permit 

conditions. Beyond these reductions, 

today’s proposed rule recognizes that 

many industrial facilities have worked 

to reduce the volume of process water 

usage at their sites and to increase the 

reuse of process water for other 

purposes within the facility. A leading 

facility or an entire industry may have 

evolved to use less process water in its 

industrial process. For example, EPA 

has found some facilities have 

undergone plant wide energy audits to 

reduce their energy needs by up to 25 

percent, providing a roughly 25 percent 

reduction in cooling water needs. One 

analysis of paper mills estimates that 

over 39 billion gallons daily of water is 

recycled and not used solely for cooling 

purposes by a typical mill. Further, 

there has been a 69 percent reduction in 

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21For the purpose of this analysis, a facility is 

considered no longer in operation and retired if it 

no longer has any steam operations. 22EPA developed the estimates of the number 

and characteristics of facilities expected to be 

within the scope of today’s proposed rule, based on 

the facility sample weights that were developed for 

the suspended 2004 Phase II Final Regulation 

analysis. These weights provide comprehensive 

estimates for the total of expected in-scope facilities 

based on the full set of facilities sampled in the 

Section 316(b) Industry Surveys. See Appendix 3.A: 

Weighting Concepts of the Economic and Benefits 

Analysis report for further discussion of the sample 

weights used in this analysis. 

23EPA estimates of the characteristics of facilities 

expected to be within the scope of today’s proposed 

rule are also based on the facility sample weights 

that were developed for the suspended 2004 Phase 

II Final Regulation analysis. 

24Electric utilities engage in the generation, 

transmission, and the distribution of electricity for 

sale generally in a regulated market. Utilities 

include investor-owned, publicly-owned, and 

cooperative entities. 

the average volume of treated effluent at 

pulp and paper mills (see DCN 10– 

6902). In response to effluent guidelines 

discharge limitations, some facilities 

have reduced their compliance costs by 

reducing the volume of wastewater they 

must treat. Some effluent limitation 

guidelines have also established explicit 

requirements for flow reduction. In the 

case of iron and steel facilities, effluent 

limitations require no discharge of 

process wastewater pollutants (for 

example, see 40 CFR part 420 subpart D 

Steelmaking). As another observed 

example of the recycling of process 

water, a facility might use non-contact 

cooling water for condensing steam, but 

then reuse the heated water for washing 

raw materials instead of discharging the 

water. 

See section V for more information on 

how water reuse and conservation 

efforts are considered in compliance 

alternatives for today’s proposed rule. 

4. Other Uses 

Given the diversity of industrial 

processes across the U.S., there are 

many other industrial uses of water not 

intended to be addressed by today’s 

proposed rule. Emergency water 

withdrawals, such as fire control 

systems and nuclear safety systems, are 

not considered as part of a facility’s 

design intake flow. Warming water at 

liquefied natural gas terminals, and 

hydro-electric plant withdrawals for 

electricity generation are not cooling 

water uses and are not addressed by 

today’s proposal. Other water uses 

might include service water and 

dilution water. Service water is a 

generic term that often refers to uses 

other than non-contact cooling (i.e., it 

may include contact cooling), but can 

also include specialty water uses such 

as makeup water for radiation waste 

systems at nuclear power plants. 

Examples of dilution water are using 

water to reduce the concentration of a 

pollutant for biological treatment 

purposes, or to reduce the temperature 

of an effluent. 

B. Overview of Electric Generators 

In the Phase I proposal, EPA 

described its rationale for setting the 

threshold for section 316(b) national 

requirements at 2 MGD. As described in 

that proposed rule, EPA selected 2 MGD 

to ensure that almost all cooling water 

withdrawn from waters of the U.S. is 

covered by a national regulation. The 

Agency recognized that there was 

relatively little information currently 

available regarding the lower bound of 

withdrawals at which significant levels 

of impingement and entrainment and, 

therefore, adverse environmental 

impact, was likely to occur. At the time, 

most case studies available to the 

agency documenting impingement and 

entrainment from cooling water 

withdrawals focused on facilities 

withdrawing very large amounts of 

water (in most cases greater than 100 

MGD). After soliciting comment and 

data on several different thresholds, the 

Agency adopted 2 MGD in the final rule. 

66 FR 65288. 

While the overview of the electric 

generating facilities in the previous 

Phase II and III proposed and final rules 

has not changed substantially, this 

section combines those multiple 

industry profiles into one overview. The 

information below is generally based on 

data from the U.S. Department of 

Energy’s (DOE) ‘‘Annual Electric 

Generator Report’’ (Form EIA–860) and 

‘‘Annual Electric Power Industry 

Report’’ (Form EIA–861), and EPA’s 

Section 316(b) Industry Surveys. 

According to the 2007 EIA database, 38 

of the 671 facilities have ceased 

operation since the Survey and 15 

facilities will likely do so by the time 

today’s proposed rule is promulgated 

(i.e., 2012). EPA also excluded 20 

electric generators that are already 

required by state policy to comply with 

standards based on closed-cycle cooling, 

and thus for regulatory analysis 

purposes are not expected to be affected 

by the proposed rule. In addition, 39 

facilities are projected to be baseline 

closures according to Integrated 

Planning Model analyses (see Section 

VII of this preamble and Chapter 6 of 

the EA for discussion of IPM analysis).21

Based on (1) data collected from these 

Surveys; (2) the compliance 

requirements in today’s proposed rule, 

and (3) the in-scope threshold of 2 MGD 

DIF (see section V for further 

explanation of the 2 MGD threshold), 

EPA has therefore identified 559 

Electric Generators that are in scope of 

today’s 316(b) Existing Facilities 

Proposed Rule.22 23

EPA estimates that the 559 steam 

electric generators represent 3 percent of 

all parent-entities, approximately 11 

percent of all facilities, and over 45 

percent of the electric power sector 

capacity. Based on the 2007 EIA 

database, EPA estimates that 388 of 

these in-scope facilities are owned by 

utilities and 171 in-scope facilities are 

owned by non-utilities.24 The majority 

of electric generating facilities expected 

to be subject to today’s proposed 

Existing Facilities rule, or 285 facilities, 

are investor-owned utilities, while 

nonutilities make up the second largest 

category. For a detailed discussion of 

parent-entities, see Chapter 5 and 7 of 

the EA (DCN 10–0002). 

As reported in Exhibit IV–1, 

approximately half of the in-scope 

electric generators draw water from a 

freshwater river (306 facilities or 55 

percent), followed by lakes or reservoirs 

(117 facilities or 21 percent) and 

estuaries or tidal rivers (83 facilities or 

15 percent). The exhibit also shows that 

most of the in-scope facilities (355 

facilities or 63 percent) employ a oncethrough cooling system. 

EXHIBIT IV–1—NUMBER OF IN-SCOPE ELECTRIC GENERATORS BY WATERBODY AND COOLING-SYSTEM TYPE a

Waterbody type Recirculating 

Number 

Once-through 

Number 

Combination 

Number 

Other 

Number 

Total b

Number 

Estuary/Tidal River ........................................... 5 69 8 1 83 

Ocean ............................................................... 0 9 0 0 9 

Lake/Reservoir ................................................. 36 73 7 1 117 

Freshwater Stream/River ................................. 102 166 32 5 306 

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25The remaining 17 facilities have NAICS codes 

that do not fall into any of these six primary 

manufacturing industries. 

EXHIBIT IV–1—NUMBER OF IN-SCOPE ELECTRIC GENERATORS BY WATERBODY AND COOLING-SYSTEM TYPE a— 

Continued 

Waterbody type Recirculating 

Number 

Once-through 

Number 

Combination 

Number 

Other 

Number 

Total b

Number 

Great Lake ....................................................... 4 37 2 0 43 

Total .......................................................... 148 355 49 7 559 

aThe numbers of facilities are calculated on a sample-weighted basis. 

b Individual values may not sum to totals due to independent rounding. 

C. Overview of Manufacturers 

EPA obtained information on in-scope 

Manufacturers presented in the tables 

below from the EPA’s Section 316(b) 

Industry Surveys (the Industry Screener 

Questionnaire (SQ) and the Industry 

Detailed Questionnaire (DQ)). Based on 

the Survey data and the compliance 

requirements in today’s proposed rule, 

EPA estimates 592 industry facilities 

with greater than 2 MGD DIF would be 

subject to today’s proposal; 575 of these 

facilities are in the 6 primary 

manufacturing industries.25

Exhibit IV–2 below presents in-scope 

and industry-wide facility and parent 

entity counts by industry. The largest 

share of manufacturers, or 225 facilities, 

is in the Pulp and Paper industry, while 

facilities in the Chemicals and Allied 

Products make up the second largest 

category at 179 facilities. 

EXHIBIT IV–2—EXISTING

MANUFACTURERS BY INDUSTRY

Sector 

Number of facilities 

Sector total Number inscope b c

Aluminum .......... 333 26 

Chemicals ......... 4,433 179 

Food .................. 28,938 37 

EXHIBIT IV–2—EXISTING MANUFACTURERS BY INDUSTRY—Continued 

Sector 

Number of facilities 

Sector total Number inscope b c

Paper ................ 597 225 

Petroleum ......... 352 39 

Steel .................. 1,525 68 

Total ........... 36,178 a 575 

a In-scope facility counts include baseline 

closures and exclude an estimated additional 

17 facilities with NAICS codes that do not fall 

into any of these six primary manufacturing industries. b Number of in-scope facilities are weighted 

estimates; see Appendix 3.A of the EA for information on weights development. Individual 

values may not sum to totals due to independent rounding of sample-weighted (non integer) estimates. cThese facility count estimates are based 

on sample weights that are applicable for estimating the number of facilities that would be 

within the scope of today’s proposed rule. 

However, because of missing financial data on 

certain facilities, these weights were not used 

in assessing the economic impact of the rule. 

Alternative weights, which yield modestly different total in-scope facility estimates (e.g., 

569 in-scope facilities in the Primary Manufacturing Industries instead of the 575 reported in 

this table), were used for developing facility 

count estimates in the economic impact 

analysis. 

Exhibit IV–3 provides the distribution 

of manufacturing intakes by source 

water body and cooling system type. In 

total, EPA estimates that 593 intakes 

will be within the scope of today’s rule. 

The vast majority (453 facilities or 77 

percent) withdraw cooling water from 

freshwater streams or rivers, followed 

by Great Lakes (47 facilities). Two 

hundred eighty-seven (48 percent) 

manufacturers employ once-through 

cooling systems, 119 (20 percent) use 

closed-cycle cooling systems, and 124 

(21 percent) use ‘‘combination’’ systems. 

An estimated 192 (32 percent) 

manufacturers have installed one or 

more cooling towers. In the total of 593 

facility/intake combinations, EPA does 

not have information on the cooling 

water system type for 4 facilities/ 

intakes. Note that not all manufacturers 

that have installed a cooling tower are 

classified as using closed-cycle cooling 

systems, as facilities with multiple 

cooling water systems may be 

‘‘combination’’ systems that employ both 

closed-cycle and once-through cooling. 

Manufacturers may also list ‘‘helper’’ 

cooling towers in their survey 

responses, which are generally used to 

mitigate discharge temperatures and do 

not necessarily affect intake flows. 

EXHIBIT IV–3—NUMBER OF IN-SCOPE MANUFACTURERS BY WATERBODY AND COOLING-SYSTEM TYPE

Waterbody type Recirculating b

Number 

Once-through 

Number 

Combination 

Number 

Other 

Number 

Type unknown 

Number 

Total a

Number 

Estuary/Tidal River ........... 1 23 16 0 0 40 

Ocean ............................... 0 11 0 0 0 11 

Lake/Reservoir ................. 7 13 12 11 0 42 

Freshwater Stream/River 111 215 82 41 4 453 

Great Lake ....................... 0 25 14 7 0 47 

Total .......................... 119 287 124 59 4 593 

aFacility counts include baseline closures and exclude 17 facilities with NAICS codes that do not fall into the six primary manufacturing industries (see Chapter 3 of EA for more detail). Individual facilities may be reported more than once in this table if they have multiple intakes while a 

single intake that serves both recirculating and once-through systems is counted once as a combination. Individual values may not sum to totals 

due to independent rounding of sample-weighted (non integer) estimates. bFour facilities have an unknown CWS type. 

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26EPA also identified many other industry sectors 

that use cooling water; a more comprehensive list 

of industries that use cooling water and their NAICS and SIC Codes can be found in section A 

of the Supplementary Information. 

D. Other Existing Facilities 

EPA’s data collection efforts largely 

focused on five industrial sectors: 

Chemicals and allied products (SIC 

Major Group 28); primary metals 

industries (SIC Major Group 33); paper 

and allied products (SIC Major Group 

26); petroleum and coal products (SIC 

Major Group 29); and food and kindred 

products (SIC Major Group 20).26 The 

first four sectors use a significant 

portion of the cooling water withdrawn 

among all manufacturing industries and 

were more heavily targeted in EPA’s 

industry questionnaire effort, but data 

were also collected from the following 

industries: Food processing; aircraft 

engines and engine parts; cutlery; 

sawmills and planing mills; finishers of 

broad woven fabrics of cotton; potash, 

soda and borate minerals; iron ores; and 

sugarcane and sugar beets. These data 

from other industries, while not a 

statistically derived sample, confirm 

that the primary industry sectors 

discussed above account for the vast 

majority of non-power plant cooling 

water use. The data collected for these 

other industries suggests that the intake 

structure design and construction at 

these industries were substantially 

similar to the industries for which EPA 

did collect data, and EPA did not 

receive any data during the Phase III 

proposed rule comment period that 

suggests otherwise. EPA’s analysis of 

costs and impacts includes these 

additional existing facilities. 

V. Scope and Applicability of the 

Proposed Section 316(b) Existing 

Facility Rule 

The proposed rule includes all 

existing facilities with a design intake 

flow of more than 2 MGD. The proposed 

rule also clarifies the definition and 

requirements for new units at existing 

facilities. The applicable requirements 

are summarized in Exhibits V–1 and V– 

2. 

EXHIBIT V–1—APPLICABILITY BY PHASE OF THE 316(b) RULES

Facility characteristic Applicable rule 

New power generating or manufacturing facility ...................................... Phase I rule. 

New offshore oil and gas facility .............................................................. Phase III rule. 

New unit at an existing power generating or manufacturing facility ........ This proposed rule. 

Existing power generating or manufacturing facility ................................ This proposed rule. 

Existing offshore oil and gas facility and seafood processing facilities ... This proposed rule (Case-by-case, best professional judgment). 

EXHIBIT V–2—APPLICABLE REQUIREMENTS OF TODAY’S PROPOSED RULE FOR EXISTING FACILITIES

Facility characteristic Applicable requirements 

Existing facility with a AIF >125 MGD ...................................................... Impingement mortality requirements at 125.94(b) and Entrainment 

Characterization Study requirements at 125.94(c) (categorical rule). 

Existing facility with a DIF >2 MGD but AIF not greater than 125 MGD Impingement mortality requirements at 125.94(b) (categorical rule). 

New unit with a DIF >2 MGD at an existing facility ................................. Impingement and entrainment mortality requirements at 125.94(d) (categorical standard). 

Other existing facility with a DIF of 2 MGD or smaller or that has an intake structure that withdraws less than 25 percent of the water for 

cooling purposes.

Case-by-case, best professional judgment. 

Initially, EPA divided the 316(b) 

rulemaking into three phases in 

response to litigation and to make the 

best use of its resources (see Section I). 

However, as EPA’s analysis progressed, 

it became clear that cooling water intake 

structures are operated similarly at most 

industrial facilities (i.e., both power 

producing and manufacturing facilities). 

From 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. Instead the impingement 

and entrainment impacts associated 

with intakes of the same type are 

generally comparable, and today’s 

proposed rule addresses these impacts 

without discriminating which facilities 

are behind the intake structure. Thus, 

EPA is consolidating the universe of 

potentially regulated facilities from the 

2004 Phase II rule with the existing 

facilities in the 2006 Phase III rule for 

purposes of today’s proposed rule. This 

consolidation also provides a ‘‘one-stop 

shop’’ for information related to today’s 

proposed rulemaking, as all existing 

facilities would be addressed in an 

equitable manner by the same set of 

technology-based requirements. 

A. General Applicability 

This rule would apply to owners and 

operators of existing facilities that meet 

all of the following criteria: 

• The facility is a point source that 

uses or proposes to use cooling water 

from one or more cooling water intake 

structures, including a cooling water 

intake structure operated by an 

independent supplier not otherwise 

subject to 316(b) requirements that 

withdraws water from waters of the 

United States and provides cooling 

water to the facility by any sort of 

contract or other arrangement; 

• The total design intake flow of the 

cooling water intake structure(s) is 

greater than 2 MGD; and 

• The cooling water intake 

structure(s) withdraw(s) cooling water 

from waters of the United States and at 

least twenty-five (25) percent of the 

water withdrawn is used exclusively for 

cooling purposes measured on an 

average annual basis for each calendar 

year. 

EPA is proposing to continue to adopt 

provisions to ensure that the rule does 

not discourage the reuse of cooling 

water for other uses such as process 

water. The definition of cooling water at 

125.93 provides that cooling water used 

in a manufacturing process either before 

or after it is used for cooling is 

considered process water for the 

purposes of calculating the percentage 

of a facility’s intake flow that is used for 

cooling purposes. Therefore, water used 

for both cooling and non-cooling 

purposes does not count towards the 25 

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27Facilities may also use groundwater wells or 

municipal water for various uses, but the volume 

of these withdrawals is usually much smaller than 

the volume withdrawn from surface waters. 

28Construction is commenced if the owner or 

operator has undertaken certain installation and site 

preparation activities that are part of a continuous 

on-site construction program, and it includes 

entering into certain specified binding contractual 

obligations as one criterion (§ 122.29(b)(4)). 

29The Phase I rule also listed examples of 

facilities that would be ‘‘new’’ facilities and facilities 

that would ‘‘not be considered a ‘new facility’ ’’ in 

two numbered paragraphs. 

30For example, a facility might purchase its 

cooling water from a nearby facility that owns and 

operates a cooling water intake structure. 

percent threshold. EPA notes this 

definition is the same definition used 

for new facilities in the Phase I rule at 

125.83. Examples of water withdrawn 

for non-cooling purposes includes water 

withdrawn for warming by liquefied 

natural gas facilities and water 

withdrawn for public water systems by 

desalinization facilities. Further, the 

proposed rule at 125.91(c) specifies that 

obtaining cooling water from a public 

water system or using treated effluent 

(such as wastewater treatment plant 

‘‘gray’’ water) as cooling water does not 

constitute use of a cooling water intake 

structure for purposes of this rule. 

Today’s proposed rule focuses on 

those facilities that are significant users 

of cooling water; only those facilities 

that use more than 25% of the water 

withdrawn for cooling purposes are 

subject to the proposed rule. EPA 

previously considered a number of 

approaches for clarifying applicability 

of the rule (66 FR 28854 and 66 FR 

65288). EPA adopted the 25% threshold 

in each of the Phase I, II, and III rules, 

and EPA has not received any new data 

or identified new approaches that 

would provide further clarity to the 

applicability of the rule. EPA is 

proposing to continue to adopt 25% as 

the threshold for the percent of flow 

used for cooling purposes to ensure that 

a large majority of cooling water 

withdrawn from waters of the U.S. is 

addressed by requirements for 

minimizing adverse environmental 

impact. Because power generating 

facilities typically use far more than 25 

percent of the water they withdraw 

exclusively for cooling purposes, the 25 

percent threshold will ensure that 

intake structures accounting for nearly 

all cooling water used by the power 

sector are addressed by today’s 

proposed requirements. While 

manufacturing facilities often withdraw 

water for more than cooling purposes, 

the majority of the water is withdrawn 

from a single intake structure.27 Once 

water passes through the intake, water 

can be apportioned to any desired use, 

including uses that are not related to 

cooling. However, as long as at least 

25% of the water is used exclusively for 

cooling purposes, the intake will be 

subject to the requirements of today’s 

rule. EPA estimates that approximately 

68% of manufacturers and 93% of 

power-generating facilities that meet the 

other proposed thresholds for the rule 

use more than 25% of intake water for 

cooling and thus will be addressed by 

today’s rule. 

EPA decided to propose requiring the 

Director, exercising BPJ, to establish 

BTA impingement and entrainment 

mortality standards for an existing 

offshore oil and gas facility, a seafood 

processing vessel, or an offshore 

liquefied natural gas import terminal. 

Such a facility would be subject to 

permit conditions implementing CWA 

section 316(b) where the facility is a 

point source that uses a cooling water 

intake structure and has, or is required 

to have, an NPDES permit. At their 

discretion, permit writers may further 

determine that an intake structure that 

withdraws less than 25% of the intake 

flow for cooling purposes should be 

subject to section 316(b) requirements, 

and set appropriate requirements on a 

case-by-case basis, using best 

professional judgment. Today’s 

proposed rule is not intended to 

constrain permit writers at the Federal, 

State, or Tribal level, from addressing 

such cooling water intake structures. 

B. What is an ‘‘existing facility’’ for 

purposes of the Section 316(b) Phase II 

rule? 

In today’s proposed rule, EPA is 

defining the term ‘‘existing facility’’ to 

include any facility that commenced 

construction before January 18, 2002, as 

provided for in § 122.29(b)(4).28 EPA is 

proposing to establish January 17, 2002 

as the date for distinguishing existing 

facilities from new facilities because 

that is the effective date of the Phase I 

new facility rule. Thus, existing 

facilities include all facilities the 

construction of which commenced on or 

before this date. In addition, EPA is 

defining the term ‘‘existing facility’’ in 

this proposed rule to include 

modifications and additions to such 

facilities, the construction of which 

commences after January 17, 2002, that 

do not meet the definition of a new 

facility at § 125.83, which is the 

definition used to define the scope of 

the Phase I rule.29

The preamble to the final Phase I rule 

discusses this definition at 66 FR 65256; 

65258–65259; 65285–65287, December 

18, 2001. 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. 

A point source would be subject to 

Phase I or today’s proposed rule even if 

the cooling water intake structure it uses 

is not located at the facility.30 In 

addition, modifications or additions to 

the cooling water intake structure (or 

even the total replacement of an existing 

cooling water intake structure with a 

new one) does not convert an otherwise 

unchanged existing facility into a new 

facility, regardless of the purpose of 

such changes (e.g., to comply with 

today’s proposed rule or to increase 

capacity). Rather, the determination as 

to whether a facility is new or existing 

focuses on whether it is a green field or 

stand-alone facility and whether there 

are changes to the cooling water intake 

to accommodate it. 

C. What is ‘‘cooling water’’ and what is 

a ‘‘cooling water intake structure?’’ 

EPA has not revised the definition of 

cooling water intake structure for 

today’s proposed rule. A cooling water 

intake structure is defined as the total 

physical structure and any associated 

constructed waterways used to 

withdraw cooling water from waters of 

the United States. Under the definition 

in today’s proposed rule, the cooling 

water intake structure extends from the 

point at which water is withdrawn from 

the surface water source up to, and 

including, the intake pumps. Today’s 

proposed rule proposes for existing 

facilities the same definition of a 

‘‘cooling water intake structure’’ that 

applies to new facilities under Phase I. 

Today’s proposal also adopts the new 

facility rule’s definition of ‘‘cooling 

water’’ as water used for contact or 

noncontact cooling, including water 

used for equipment cooling, evaporative 

cooling tower makeup, and dilution of 

effluent heat content. The definition 

specifies that the intended use of 

cooling water is to absorb waste heat 

rejected from the processes used or 

auxiliary operations on the facility’s 

premises. The definition also indicates 

that water used in a manufacturing 

process either before or after it is used 

for cooling is process water and would 

not be considered cooling water for 

purposes of determining whether 25 

percent or more of the flow is cooling 

water. This clarification is necessary 

because cooling water intake structures 

typically bring water into a facility for 

numerous purposes, including 

industrial processes; use as circulating 

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water, service water, or evaporative 

cooling tower makeup water; dilution of 

effluent heat content; equipment 

cooling; and air conditioning. Note 

however, that all intake water 

(including cooling and process) is 

included in the determination as to 

whether the 2 MGD DIF threshold for 

covered intake structures is met. 

D. Would my facility be covered only if 

it is a Point Source Discharger? 

Today’s proposed rule would apply 

only to facilities that are point sources 

(i.e., have an NPDES permit or are 

required to obtain one). This is the same 

requirement EPA included in the Phase 

I new facility rule at § 125.81(a)(1). 

Requirements for complying with 

section 316(b) will continue to be 

applied through NPDES permits. 

Based on the Agency’s review of 

potential existing facilities that employ 

cooling water intake structures, the 

Agency anticipates that most existing 

facilities subject to this proposed rule 

will control the intake structure that 

supplies them with cooling water, and 

discharge some combination of their 

cooling water, wastewater, or storm 

water to a water of the United States 

through a point source regulated by an 

NPDES permit. Under these 

circumstances, the facility’s NPDES 

permit will include the requirements for 

the cooling water intake structure. In the 

event that an existing facility’s only 

NPDES permit is a general permit for 

storm water discharges, the Agency 

anticipates that the Director would write 

an individual NPDES permit containing 

requirements for the facility’s cooling 

water intake structure. Alternatively, 

requirements applicable to cooling 

water intake structures could be 

incorporated into general permits. If 

requirements are placed into a general 

permit, they must meet the 

requirements set out at 40 CFR 122.28. 

As EPA stated in the preamble to the 

final Phase I rule (66 FR 65256 

(December 18, 2001)), the Agency 

encourages the Director to closely 

examine scenarios in which a facility 

withdraws significant amounts of 

cooling water from waters of the United 

States but is not required to obtain an 

NPDES permit. As appropriate, the 

Director will necessarily apply other 

legal requirements, where applicable, 

such as section 404 or 401 of the Clean 

Water Act, the Coastal Zone 

Management Act, the National 

Environmental Policy Act, the 

Endangered Species Act, or similar State 

or Tribal authorities to address adverse 

environmental impact caused by cooling 

water intake structures at those 

facilities. 

E. Would my facility be covered if it 

withdraws water from waters of the 

U.S.? What if my facility obtains cooling 

water from an independent supplier? 

The requirements in today’s proposed 

rule apply to cooling water intake 

structures that have the design capacity 

to withdraw amounts of water equal to 

or greater than 2 MGD from ‘‘waters of 

the United States.’’ Waters of the United 

States include the broad range of surface 

waters that meet the regulatory 

definition at 40 CFR 122.2, which 

includes lakes, ponds, reservoirs, 

nontidal rivers or streams, tidal rivers, 

estuaries, fjords, oceans, bays, and 

coves. These potential sources of 

cooling water may be adversely affected 

by impingement and entrainment. 

Some facilities discharge heated water 

to manmade cooling ponds, and then 

withdraw water from the ponds for 

cooling purposes. EPA recognizes that 

cooling ponds may, in certain 

circumstances, constitute a closed-cycle 

cooling system and therefore may 

already comply with some or all of the 

technology-based requirements in 

today’s proposed rule. However, 

facilities that withdraw cooling water 

from cooling ponds that are waters of 

the United States and that meet the 

other criteria for coverage (including the 

requirement that the facility has or will 

be required to obtain an NPDES permit) 

would be subject to today’s proposed 

rule. In some cases water is withdrawn 

from a water of the United States to 

provide make-up water for a cooling 

pond. In many cases, EPA expects such 

make-up water withdrawals are 

commensurate with the flows of a 

closed-cycle cooling tower, and again 

the facility may already comply with 

requirements to reduce its intake flow 

under the proposed rule. In those cases 

where the withdrawals of make-up 

water come from a water of the United 

States, and the facility otherwise meets 

today’s criteria for coverage (including a 

design intake flow of 2 million gallons 

per day), the facility would be subject to 

today’s proposed rule requirements. 

EPA does not intend this rule to 

change the regulatory status of cooling 

ponds. Cooling ponds are neither 

categorically included nor categorically 

excluded from the definition of ‘‘waters 

of the United States’’ at 40 CFR 122.2. 

The determination whether a particular 

cooling pond is, or is not, a water of the 

United States is to be made by the 

permitting authority on a case-by-case 

basis. The EPA and the U.S. Army Corps 

of Engineers have jointly issued 

jurisdictional guidance concerning the 

term ‘‘waters of the United States’’ in 

light of the Supreme Court’s decision in 

Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (SWANCC). A copy 

of that guidance was published as an 

Appendix to an Advanced Notice of 

Proposed Rulemaking on the definition 

of the phrase ‘‘waters of the U.S.,’’ see 68 

FR 1991 (January 15, 2003), and may be 

obtained at (http://www.epa.gov/owow/ 

wetlands/pdf/ANPRM–FR.pdf). The 

agencies additionally published 

guidance in 2008 regarding the term 

‘‘waters of the United States’’ in light of 

both the SWANCC and subsequent 

Rapanos case (Rapanos v. United 

States, 547 U.S. 715 (2006)). 

The Agency recognizes that some 

facilities that have or are required to 

have an NPDES permit might not own 

and operate the intake structure that 

supplies their facility with cooling 

water. In addressing facilities that have 

or are required to have an NPDES 

permit that do not directly control the 

intake structure that supplies their 

facility with cooling water, revised 

§ 125.91 provides (similar to the new 

facility rule) that facilities that obtain 

cooling water from a public water 

system or use treated effluent are not 

deemed to be using a cooling water 

intake structure for purposes of this 

proposed rule. However, obtaining 

water from another entity that is 

withdrawing water from a water of the 

US would be counted as using a cooling 

water intake structure for purposes of 

determining whether an entity meets the 

threshold requirements of the rule. For 

example, facilities operated by separate 

entities might be located on the same, 

adjacent, or nearby property(ies); one of 

these facilities might take in cooling 

water and then transfer it to other 

facilities prior to discharge of the 

cooling water to a water of the United 

States. Section 125.91(b) specifies that 

use of a cooling water intake structure 

includes obtaining cooling water by any 

sort of contract or arrangement with one 

or more independent suppliers of 

cooling water if the supplier or 

suppliers withdraw water from waters 

of the United States but that is not itself 

a new or existing facility subject to 

section 316(b), except if it is a public 

water system. 

As a practical matter, existing 

facilities are the largest users of cooling 

water, and typically require enough 

cooling water to warrant owning the 

cooling water intake structures. In some 

cases, such as at nuclear power plants 

or critical baseload facilities, the need 

for cooling water includes safety and 

reliability reasons that would likely 

preclude any independent supplier 

arrangements. Therefore, EPA does not 

expect much application of this 

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31The 2004 Phase II rule applied to existing 

power-generating facilities with a design intake 

flow of 50 mgd or greater. Facilities potentially in 

scope of the Phase III rule had a DIF of greater than 

2 MGD. 

32See 65 FR 49067/3 for more information. 

33The proposed rule contains streamlined 

information submission requirements for facilities 

that already employ closed cycle cooling. 

34EPA studied naval vessels and cruise ships as 

part of its development of a general NPDES permit 

for discharges from ocean-going vessels. (See 

http://cfpub.epa.gov/npdes/ 

home.cfm?program_id=350 for more information.) 

EPA studied seafood processing vessels and oil and 

gas exploration facilities in the 316(b) Phase III rule. 

35As discussed in today’s preamble, requirements 

for new offshore facilities set forth in the Phase III 

rule remain in effect. 

provision. EPA is nevertheless retaining 

the provision in order to prevent 

facilities from circumventing the 

requirements of today’s proposed rule 

by creating arrangements to receive 

cooling water from an entity that is not 

itself subject to today’s proposed rule, 

and is not explicitly exempt from 

today’s rule (such as drinking water or 

treatment plant discharges reused as 

cooling water). 

F. What intake flow thresholds result in 

an existing facility being subject to this 

proposed rule? 

There are two ways in which EPA 

determines the cooling water flow at a 

facility. The first way is based on the 

design intake flow (DIF), which reflects 

the maximum intake flow the facility is 

capable of withdrawing. While this 

normally is limited by the capacity of 

the cooling water intake pumps, other 

parts of the cooling water intake system 

could impose physical limitations on 

the maximum intake flow the facility is 

capable of withdrawing. The second 

way is based on the actual intake flow 

(AIF), which reflects the actual volume 

of water withdrawn by the facility. EPA 

has defined AIF to be the average water 

withdrawn each year over the preceding 

3 years. Both of these definitions are 

used in today’s proposed rule. 

In this proposed rule EPA considered 

requirements based on the intake flow at 

the existing facility. EPA is proposing 

the rule to apply to facilities that have 

a total design intake capacity of at least 

2 MGD (see § 125.91).31 Above 2 MGD, 

99.7% of the total water withdrawals by 

utilities and other industrial sources 

would potentially be covered (if the 

other criteria for coverage are met) while 

58% of the manufacturers, 70% of the 

non-utilities, and 100% of the utilities 

would be covered. EPA also chose the 

greater than 2 MGD threshold to be 

consistent with the applicability criteria 

in the Phase I rule.32 EPA continues to 

believe that this threshold ensures that 

the largest users of cooling water will be 

subject to the proposed rule. 

EPA proposes to continue to use a 

threshold based on design intake flow as 

opposed to actual intake flow for several 

reasons. In contrast to actual intake 

flow, design intake flow is a fixed value 

based on the design of the facility’s 

operating system and the capacity of the 

circulating and other water intake 

pumps. This provides clarity, as the 

design intake flow does not change, 

except in limited circumstances, such as 

when a facility undergoes major 

modifications. On the other hand, actual 

flows can vary significantly over 

sometimes short periods of time. For 

example, a peaking power plant may 

have an actual intake flow close to the 

design intake flow during times of full 

energy production, but an AIF of zero 

during periods of standby. Use of design 

intake flow provides clarity as to 

regulatory status, is indicative of the 

possible magnitude of environmental 

impact, and would avoid the need for 

monitoring to confirm a facility’s status. 

Also see 69 FR 41611 for more 

information about these thresholds. 

Under current NPDES permitting 

regulations at § 122.21, all existing 

facilities greater than 2 MGD DIF must 

submit basic information describing the 

facility, source water physical data, 

source water biological characterization 

data, and cooling water intake system 

data. Under this proposed rule, all 

facilities greater than 2 MGD DIF must 

submit additional facility-specific 

information including the proposed 

impingement mortality reduction plan, 

relevant biological survival studies, and 

operational status of each of the 

facility’s units.33 Certain facilities 

withdrawing the largest volumes of 

water for cooling purposes have 

additional information and study 

requirements such as the Entrainment 

Characterization Study as described 

below. 

EPA is proposing to use actual intake 

flow (AIF) rather than design intake 

flow (DIF) for purposes of determining 

which facilities must conduct an 

Entrainment Characterization Study. 

Environmental impacts, particularly 

entrainment and entrainment mortality, 

result from actual water withdrawals, 

and not the maximum designed 

withdrawals. Further, using actual flow 

may encourage some facilities to reduce 

their flows in order to avoid collecting 

supplemental data and submitting the 

additional entrainment characterization 

study. Furthermore, any facility that has 

DIF greater than 2 MGD is required to 

submit basic information that will allow 

the permitting authority to verify its 

determination of whether or not it meets 

the 125 MGD AIF threshold. 

EPA has selected a threshold of 125 

MGD AIF because a threshold of 125 

MGD would capture 90 percent of the 

actual flows but would only establish 

the Entrainment Characterization Study 

requirements for 30 percent of existing 

facilities. This would significantly 

reduce facility burden by more than 

two-thirds of the potentially in-scope 

facilities, and would focus permit 

authorities on the majority of cooling 

water withdrawals by addressing 

approximately 200 billion gallons of 

daily cooling water withdrawals. 

In today’s proposal, EPA seeks to 

clarify that for some facilities, the 

design intake flow is not necessarily the 

maximum flow associated with the 

intake pumps. For example, a power 

plant may have redundant circulating 

pumps, or may have pumps with a 

name plate rating that exceeds the 

maximum water throughput of the 

associated piping. 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 also means that a plant 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. EPA solicits comment 

on whether the definition of DIF should 

be revised to make this clarification 

more apparent. 

G. Offshore Oil and Gas Facilities, 

Seafood Processing Vessels or LNG 

Import Terminals BTA Requirements 

Under This Proposed Rule 

Under today’s proposal, existing 

offshore oil and gas facilities, seafood 

processing facilities and LNG import 

terminals would be subject to 316(b) 

requirements on a best professional 

judgment basis. In the Phase III rule, 

EPA studied offshore oil and gas 

facilities and seafood processing 

facilities 34 and could not identify any 

technologies (beyond the protective 

screens already in use) that are 

technically feasible for reducing 

impingement or entrainment in such 

existing facilities.35 As discussed in the 

Phase III rule, known technologies that 

could further reduce impingement or 

entrainment 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 

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components of the hull. EPA also 

believes that for many of these facilities, 

the cooling water withdrawals are most 

substantial when the facilities are 

operating far out at sea—and therefore 

not withdrawing from a water of the 

U.S. The EPA is aware that LNG 

facilities may withdraw hundreds of 

MGD of seawater for warming (regasification). However, some existing 

LNG facilities may still withdraw water 

where 25 percent or more of the water 

is used for cooling purposes. As 

discussed in section V, EPA has not 

identified a uniformly applicable and 

available technology for minimizing 

impingement and entrainment (I&E) 

mortality at these facilities. However, 

technologies may be available for some 

existing LNG facilities. LNG facilities 

that withdraw any volume of water for 

cooling purposes would be subject to 

case-by-case, best professional judgment 

BTA determinations. 

EPA has not identified any new data 

or approaches that would result in a 

different determination. Therefore, 

today’s rule would continue to require 

that the BTA for existing offshore oil 

and gas extraction facilities and seafood 

processing facilities is established by 

NPDES permit directors on a case-bycase basis using best professional 

judgment. EPA solicits comment and 

data on the appropriateness of national 

categorical standards for these facilities. 

H. What is a ‘‘new unit’’ and how are 

new units addressed under this 

proposed rule? 

The Phase I rule did not distinguish 

between new stand-alone facilities and 

new units where the units are built on 

a site where a source is already located 

and does not totally replace the existing 

source. Because EPA is not changing the 

new facility rule definitions, and is only 

proposing clarifying revisions to the 

existing facility rule, this proposed 

provision is not intended to otherwise 

reopen the Phase I rule. Today’s 

proposed rule establishes requirements 

for new units added to an existing 

facility that are not a ‘‘new facility’’ as 

defined at § 125.83. Today’s proposal 

seeks to clarify the definitions of ‘‘new’’ 

versus ‘‘existing’’ by first noting that, for 

purposes of section 316(b), a facility 

cannot be defined as a new facility and 

an existing facility at the same time. In 

this rule, while EPA will continue to 

treat replacement and new units for the 

same industrial purpose as existing 

facilities, EPA intends to have different 

requirements for the addition of new 

units. A replacement unit or repowered 

unit, as distinct from constructing an 

additional unit, would not be treated as 

a new 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. 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. The incremental 

downtime that can be associated with 

retrofitting to closed-cycle cooling is 

avoided altogether at a new unit. In 

addition, when new units are added, the 

condensers can be configured for 

closed-cycle, 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. 

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. 

VI. BTA Consideration 

In response to the Supreme Court’s 

decision in Entergy Corp. et al. v. EPA 

in April 2009, and the Second Circuit 

decision in Riverkeeper II, EPA has 

reevaluated the requirements for 

existing facilities under section 316(b). 

As discussed in Section III, for the BTA 

determinations proposed below, EPA 

collected additional data and 

information and updated the technology 

efficacy and costs analyses prepared for 

the earlier rulemaking efforts. These 

data and analyses serve to update the 

rulemaking record and allow EPA to 

apply greater technical rigor to EPA’s 

analysis of BTA. As a result, EPA has 

decided not to re-propose requirements 

similar to those of the final Phase II rule, 

but would adopt, for the reasons 

explained in this preamble, a new 

framework. In addition, as previously 

noted, EPA decided to address all 

existing facilities subject to 316(b) in 

one rule (i.e., Phase II and Phase III). 

A. EPA’s Approach to BTA 

Section 316(b) of the CWA requires 

EPA to establish standards for cooling 

water intake structures that reflect the 

‘‘best technology available for 

minimizing adverse environmental 

impact.’’ The statute is silent with 

respect to the factors that EPA should 

consider in determining BTA but 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. The 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. EPA 

has broad discretion in determining 

what is the ‘‘best’’ available technology 

for minimizing adverse environmental 

impact. EPA is not bound to evaluate 

the factors it considers in standard 

setting in precisely the same way it 

considers them in establishing effluent 

limitations guidelines under section 304 

of the Clean Water Act. Thus, the U.S. 

Supreme Court has explained that, 

under section 316(b), ‘‘best’’ technology 

may reflect a consideration of a number 

of factors and that ‘‘best’’ does not 

necessarily mean the technology that 

achieves the greatest reduction in 

environmental harm that the regulated 

universe can afford. Rather, the ‘‘best’’ 

(or ‘‘most advantageous’’ technology in 

the court’s words) may represent a 

technology that most efficiently 

produces the reductions in harm. 

EPA has interpreted section 316(b) to 

require the Agency to establish a 

standard based on the best technology 

available that will minimize 

impingement and entrainment—the two 

main adverse effects of cooling water 

intake structures. In EPA’s view, there 

are several important considerations 

underpinning its decision. First, its BTA 

determination should be consistent 

with,and reflective of, the goals of 

Section 101 of the CWA: ‘‘to restore and 

maintain the physical, chemical, and 

biological integrity of the Nation’s 

waters,’’ with an interim goal of 

protecting water quality so as to provide 

for the protection and propagation of 

fish, shellfish, and wildlife and provide 

for recreation in and on the water. 

Second, 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. See 

section VI. E below. 

Both Riverkeeper decisions recognize 

that EPA may consider a number of 

factors in establishing section 316(b) 

standards. In the Phase I Riverkeeper 

case, the court explained that the cross 

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36Typically, cooling water intake structures use 

various screening devices to prevent large objects 

(e.g., trash, logs) from being drawn in with the 

cooling water and ultimately clogging or damaging 

the cooling water system. 

reference in section 316(b) to sections 

301 and 306 is an ‘‘invitation’’ to look to 

those statutory provisions for guidance 

concerning the factors EPA should 

consider in determining BTA. In the 

Phase II decision, the court stated that 

the interpretation of section 316(b) 

should be ‘‘informed’’ by these other two 

provisions. EPA may consider the 

factors involved in establishing effluent 

discharge limitations when regulating 

intake structures. The factors 

specifically delineated in CWA sections 

301 and 306 that EPA may consider 

include: cost of the technology, taking 

into account the age of the equipment 

and facilities, process employed, 

engineering aspects associated with a 

particular technology, process changes 

and non-water quality environmental 

impact (including energy requirements). 

In selecting the ‘‘best’’ technology, 

EPA looked at a number of factors. 

Thus, EPA first considered the 

availability and feasibility of various 

technologies, their costs including 

potential costs to facilities as well as 

households, and economic impacts of 

different technologies. EPA reviewed 

the efficacy of these technologies in 

reducing impingement and entrainment 

mortality, including cost-effectiveness 

relationships. EPA also considered 

additional factors set out in 304(b) of the 

Clean Water Act, including location, 

age, size, and type of facility. EPA next 

considered the non-water quality effects 

of different technologies on energy 

production and availability, electricity 

reliability, and potential adverse 

environmental effects that may arise 

from the use of the different controls 

evaluated. 

EPA has also considered the costs and 

the benefits of the different technologies 

it evaluated for BTA. 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 (see Exhibit VIII– 

10). EPA believes that the benefits 

estimated for the first two categories are 

fairly complete, while the benefits 

estimated for the latter two categories 

are incomplete for a number of reasons. 

For example, the non-use benefits 

consider only the northeast and middle 

Atlantic states. EPA will continue to 

refine its tools in order to develop a 

more complete analysis concerning 

benefits during the rulemaking 

proceeding. 

As a result of this thorough 

evaluation, EPA is proposing the use of 

modified traveling screens with a fish 

handling and return system or reduced 

intake velocity as BTA for impingement 

mortality. EPA’s record shows modified 

traveling screens are available for all 

facilities, whereas reduced intake 

velocity may not be available at all 

locations. For entrainment, on the other 

hand, EPA could identify no single 

technology that represented BTA for all 

facilities for the reasons explained in 

detail below. Instead, as the national 

BTA entrainment requirement for 

existing facilities, EPA is proposing to 

adopt regulations that establish a 

process for the permitting authority to 

determine entrainment BTA controls on 

a site-specific basis following the 

consideration of several factors. In 

addition to the general considerations 

discussed above, EPA has identified the 

following specific factors as the key 

elements in its decision not to prescribe 

a single technology as the basis for a 

national BTA determination. These 

factors are local energy reliability, air 

emissions permits, land availability, and 

remaining useful plant life. The rest of 

this chapter describes each of these 

considerations in detail. 

B. Technologies Considered to Minimize 

Impingement and Entrainment 

As described in Section IV, power 

plants and manufacturers withdraw 

large volumes of cooling water on a 

daily basis. The majority of 

environmental impacts associated with 

intake structures are caused by water 

withdrawals that ultimately result in the 

loss of aquatic organisms. These losses 

may be due to impingement, 

entrainment, or both. Impingement 

occurs when organisms are trapped 

against the outer part of a screening 

device of an intake structure.36 The 

force of the intake water traps the 

organisms against the screen and they 

are unable to escape. Not all organisms 

contained in the incoming water are 

impinged, however. Some may pass 

through the screening system and the 

intake structure and travel through the 

entire cooling system including the 

pumps, condenser tubes, and discharge 

pipes. This is referred to as entrainment. 

Various factors lead to the susceptibility 

of an organism to impingement or 

entrainment. For more detailed 

discussion of impingement and 

entrainment and their resulting impact, 

see 67 FR 17136–17140 and the EEBA. 

As described in Section III.D, 

reductions in impingement or 

entrainment do not necessarily mean 

reductions in mortality. For purposes of 

this proposal, EPA has developed the 

following definitions for impingement 

and entrainment and mortality: 

• Impingement: The entrapment of all 

life stages of fish and shellfish on the 

outer part of an intake structure or 

against a screening device during 

periods of intake water withdrawal. 

• Impingement Mortality: The death 

of fish or shellfish due to impingement 

(as defined above). Note impingement 

mortality need not occur immediately; 

impingement may cause harm to the 

organism, which results in mortality 

several hours after the impingement 

event. For purposes of this proposed 

rule, impingement mortality is limited 

to those organisms collected or retained 

by 3⁄8 inch sieve. 

• Entrainment: The incorporation of 

all life stages of fish and shellfish with 

intake water flow entering and passing 

through a cooling water intake structure 

and into a cooling system. 

• Entrainment Mortality: The death of 

fish or shellfish due to entrainment. 

This also includes the death of those 

fish and shellfish due to fine mesh 

screens or other technologies used to 

exclude the organisms from 

entrainment. For purposes of this 

proposed rule, entrainment mortality is 

limited to those organisms passing 

through a 3⁄8-inch sieve. 

Based on available information, as 

described in section III.D, EPA is 

assuming for purposes of this rule that 

all entrained organisms are a loss, i.e., 

no entrained organisms survive. 

Therefore, in the absence of entrainment 

control, entrainment is assumed to lead 

to entrainment mortality. Also see 

Chapter A7 of the Phase II Regional 

Studies Document (DCN 6–0003; EPA– 

HQ–OW–2002–0049–1490). Entrainable 

organisms generally consist of eggs and 

early life stage larvae. Early larvae 

generally do not have skeletal 

structures, have not yet developed 

scales, and in many cases are incapable 

of swimming for several days post 

hatching. However, for impingement, 

mortality occurs less than 100% of the 

time. Impingeable organisms are 

generally larger juvenile or adult fish, 

with fully formed scales and skeletal 

structures, and well developed survival 

traits such as avoidance responses. 

EPA’s data demonstrate that, under the 

proper conditions, many impinged 

organisms survive. 

In addition to these definitions it is 

helpful to further characterize 

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37 Impingement rates are related to intake flow, 

intake velocity, and the swimming ability of the fish 

subject to impingement. Entrainment is generally 

considered to be proportional to flow and therefore 

reduced on a 1-to-1 basis via flow reductions, as 

EPA assumes for purposes of national rulemaking 

that entrainable organisms are uniformly 

distributed throughout the source water. EPA has 

consistently applied this assumption throughout 

the 316(b) rulemaking process (see, e.g., 66 FR 

65276 for a discussion of proportional flow 

requirements in the Phase I rule or 69 FR 41599) 

and continues to believe that it is broadly 

applicable on a national scale and is an appropriate 

assumption for a national rulemaking. EPA 

recognizes that this assumption is not necessarily 

true on a site specific basis and that relocating or 

varying the time pattern of withdrawals may be 

effective strategies to reduce I&E in some cases. 

38Withdrawals of colder water could allow 

facilities to reduce their intake using variable speed 

drives and pumps, but EPA does not have data on 

the efficacy or availability of this approach. 

impingement and entrainment as those 

terms are used in the literature and in 

studies conducted by power plants. 

Historically, traveling screens deployed 

by power plants utilized a 3⁄8-inch mesh 

size. For this reason, most studies and 

reports referring to impingement are in 

fact referring to those organisms 

impinged on a 3⁄8-inch mesh screen. 

Impingement can also refer to any 

organism incapable of swimming away 

from the intake structure due to the 

water velocity at the intake. Similarly, 

entrainable organisms are those 

organisms fitting through a mesh of less 

than or equal to 3⁄8 of an inch. This also 

means the majority of entrainable 

organisms are comprised of eggs, larvae, 

and juveniles. More recent studies, 

particularly those that evaluate mesh 

sizes smaller than 3⁄8 of an inch, 

continue to refer to impingement as any 

organism caught on the screen. This can 

cause some confusion, as many 

organisms that would have been 

entrained with a 3⁄8-inch mesh instead 

become impinged by the finer mesh. 

These are referred to as ‘‘impinged 

entrainables’’ or ‘‘converts.’’ EPA has 

also found that most studies of 

entrainment are biased towards the 

larger (older) larvae with higher survival 

rates and do not analyze survival of 

smaller larvae. This corresponds to 

larvae body lengths sufficient to have 

begun scale and bone development, and 

generally reflects the more motile early 

life stages. EPA found these study 

findings cannot be applied to nonmotile life stages, which are incapable 

of avoidance responses. As discussed in 

Section III.C, it is also important to note 

that the prevention of entrainment by 

some exclusion technologies may result 

in very high entrainment reductions, but 

these organisms do not necessarily 

survive interactions with the exclusion 

technology. Therefore, while 

entrainment refers specifically to 

passage through the cooling water 

intake system, entrainment mortality 

also includes those smaller organisms 

killed by exclusion from the cooling 

water intake system. Today’s rule 

proposes to use the 3⁄8-inch mesh size as 

part of the definition of impingement 

and entrainment mortality as a means of 

clearly differentiating those organisms 

that may be susceptible to impingement 

or entrainment, and thereby avoiding 

any confusion over the status of 

‘‘impinged entrainables’’ or ‘‘converts.’’ 

Generally, there are two basic 

approaches to reduce impingement and 

entrainment (I&E) mortality. The first 

approach is flow reduction, where the 

facility installs technology or operates 

in a manner to reduce or eliminate the 

quantity of water being withdrawn. 

Reduced volumes of cooling water 

produce a corresponding reduction in 

I&E, and therefore reduced I&E 

mortality. The second way to reduce I&E 

is to install technologies or operate in a 

manner that either (a) gently excludes 

organisms or (b) collects and returns 

organisms. Under the first approach, 

technologies or practices are used to 

divert those organisms that would have 

been subject to I&E. The second 

approach is to install collection and 

return technologies; organisms not 

diverted are collected and returned back 

to the source water. 

Though not available to all facilities, 

a third approach to reducing 

impingement and entrainment is 

relocating the facility’s intake to a less 

biologically rich area in a water body, 

usually further from shore and/or at 

greater depths, or varying the timing of 

withdrawals by time of day, season, etc., 

to target withdrawals to times when 

organism densities are lower. This 

approach can be effective at entrainment 

reduction, but is not generally available 

to inland facilities. 

The section below further describes 

flow reduction and exclusion 

technologies. 

1. Flow Reduction 

Flow reduction is commonly used to 

reduce impingement and entrainment. 

For purposes of rulemaking, EPA 

assumes that entrainment and 

impingement (and associated mortality) 

at a particular site are proportional to 

source water intake volume.37 Thus, if 

a facility reduces its intake flow, it 

similarly reduces the amount of 

organisms subject to impingement and 

entrainment. Some common flow 

reduction technologies include: Variable 

frequency drives, variable speed pumps, 

seasonal operation or seasonal flow 

reductions, unit retirements, use of 

alternate cooling water sources, water 

reuse, and closed-cycle cooling systems. 

For additional detailed information on 

these technologies as well as others, see 

the TDD, ‘‘California’s Coastal Power 

Plants: Alternative Cooling System 

Analysis’’ (DCN 10–6964), and EPRI’s 

‘‘Fish Protection at Cooling Water Intake 

Structures: A Technical Reference 

Manual’’ (DCN 10–6813). 

a. Variable Frequency Drives and 

Variable Speed Pumps 

A facility with variable speed drives 

or pumps operating at their design 

maximum can withdraw the same 

volume of water as a conventional 

circulating water pump. However, 

unlike a conventional circulating water 

pump, variable speed drives and pumps 

allow a facility to reduce the volume of 

water being withdrawn for certain time 

periods. The pump speed can be 

adjusted to reduce water withdrawals 

when cooling water needs are lower, 

such as when ambient water 

temperatures are colder (and therefore 

capable of dissipating more heat) or 

when fewer generating units are 

operating. In site visits, EPA found that 

variable speed drives and pumps were 

typically used at units operating below 

capacity, such as load following units. 

For this reason most base load 

generating units and continuously 

operated manufacturing processes 

would obtain minimal reductions in 

flow as a result of these technologies. 

EPA estimates that facilities with 

intermittent water withdrawals could 

achieve a 5 to 10 percent reduction in 

flow.38 EPA is further aware that some 

facilities need to withdraw water for 

cooling even while the facility is not in 

production, such as facilities on standby 

status, or nuclear facilities where the 

heat energy generated by fission must 

still be dissipated while the facility is 

out of service. 

b. Seasonal Flow Reductions 

Seasonal flow reduction refers to the 

reduction or elimination of a quantity of 

water being withdrawn during certain 

biologically important time periods. 

Most facilities that practice seasonal 

flow reductions do so in order to reduce 

entrainment because peak entrainment 

events are often seasonal, typically 

occurring during local spawning season, 

while impingement is more sporadic. 

For example, clupeids species 

experience impingement episodes 

sporadically all throughout the winter 

and spring. Largemouth bass, on the 

other hand, may spawn in the latespring, which would thus be a season of 

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39Note that some generating units are retired for 

market-driven reasons (i.e., the unit is no longer 

considered sufficiently profitable to operate). They 

may also be mothballed, placed on cold storage, or 

maintained in various other states of operational 

readiness. 

40See, for example, EPA’s site visit report for 

PSEG’s Linden Generating Station (DCN 10–6557), 

which has a capacity of 1230 MW, 35% CUR, and 

uses 7–8 mgd of gray water as makeup water for its 

cooling towers. 

41 In addition, a smaller portion of the heat is also 

removed through direct contact between the warm 

water and the cooler surroundings. 

42Natural draft towers can be as high as 500 feet 

or more. 

43Mechanical draft towers typically range from 

30 to 75 feet in height. 

potentially high entrainment for this 

species. During this specific peak 

entrainment time period, a facility could 

operate less (or perhaps not at all) 

thereby reducing or eliminating the 

volume of cooling water withdrawn. 

This may be accomplished through a 

combination of variable speed pumps or 

shutting down some portion of the 

pumping system. Seasonal flow 

reduction may also consist of operating 

a once-through cooling system during 

part of the year and switching to closedcycle during peak entrainment season. 

Facilities may also choose to schedule 

periodic maintenance to occur during 

these time periods; these maintenance 

activities often require the facility to 

reduce or cease operations and can be 

timed to coincide with the most 

biologically productive periods. By 

identifying species of concern at 

facilities visited by EPA, the Agency has 

identified some sites where entrainment 

is significant all year long, and other 

sites where peak entrainment occurs in 

as few as three to four months of the 

year. In addition, not all power 

generating facilities in a local area could 

stop operating at the same time without 

interrupting local electricity reliability. 

Therefore, not all facilities can utilize 

seasonal flow reduction technologies. 

c. Unit Retirements 

Some power plants have retired units 

completely or have essentially ceased 

all operations but have yet to be 

formally retired or decommissioned. 

Reasons for their inactivity vary,39 but 

the end result is the facility eliminates 

the need for cooling water withdrawals 

for these units. Similarly, manufacturers 

may retire processing units as market 

demand changes, process lines are 

moved to other sites, or production 

technologies change. Unit closures 

provide clear reductions in flow, but the 

demand for electricity (or other 

products) may dictate that production 

be increased at the facility in question 

or another facility altogether; there is 

usually no guarantee that the intake 

flow will be permanently retired. EPA 

expects flow reductions due to unit 

closures could be reasonably included 

as part of a facility’s I&E mortality 

reductions for a period of up to 10 years. 

d. Alternate Sources of Cooling Water 

While not reducing the overall usage 

of water at a facility, using an alternate 

source of cooling water may have the 

same effect in reducing impingement 

and entrainment, as new or additional 

withdrawals from surface waters may be 

reduced. An example is using ‘‘gray’’ 

water as a source of cooling water; a 

facility reaches an agreement with a 

nearby wastewater treatment plant to 

accept the WWTP’s effluent as a source 

of cooling water.40 Such alternative 

sources are limited by available 

capacity, consistency of flow, and 

increasing competition for these sources 

of water, and may be more challenging 

to find for existing facilities than for 

new facilities that are not yet fixed in 

location. 

e. Water Reuse 

Typically associated with 

manufacturing facilities, water reuse 

(defined as using water for multiple 

processes) can reduce the volume of 

water needed for cooling, process, or 

other uses. For example, a facility might 

withdraw water for non-contact cooling 

water and then re-use the heated 

effluent as part of an industrial process. 

In effect, the facility has eliminated the 

need to withdraw additional water for 

the latter process. EPA has observed 

significant water reuse at manufacturing 

facilities, but has not developed 

national level data for such reuse due to 

the range of different manufacturing 

sectors and the significant variability in 

manufacturing processes (during site 

visits, it was observed that complex 

facilities have found it difficult to assess 

their specific water reuse). See Section 

IV for further discussion on water usage 

in specific industrial sectors. 

f. Closed-cycle Cooling Towers 

Closed-cycle cooling systems allow a 

facility to transfer its waste heat to the 

environment using significantly smaller 

quantities of (or in some cases no) 

water. There are two main types of 

closed-cycle cooling systems: Wet 

cooling and dry cooling. Each of these 

is described below. 

Wet Cooling Tower Systems 

In a wet cooling system, cooling water 

that has absorbed waste heat, transfers 

that heat through evaporation of some of 

the heated water into the surrounding 

air and recirculates the cooling water to 

continue the cooling process.41 This 

process enables a facility to re-use the 

remaining water, thereby reducing the 

quantity of water that must be 

withdrawn from a water body. Because 

the heat is transferred through 

evaporation, while the amount of water 

withdrawn from the water source is 

greatly reduced, it is not eliminated 

completely because make-up water is 

required to replace that lost through 

evaporation and blowdown. There are 

two main types of wet cooling systems: 

Natural draft and mechanical. While 

wet cooling towers reduce withdrawals 

relative to once-through systems, they 

may increase the consumptive use of 

water since they tend to rely on 

evaporation (which is not returned to 

the water body) for heat dissipation. 

When once-through cooling is used and 

withdrawals are a significant portion of 

the waterbody, the return of heated 

water may contribute to greater 

evaporation from the water body. 

However, EPA does not have data on the 

relative magnitude of these effects. The 

relative loss of water through 

evaporation for closed cycle and oncethrough systems is site specific, 

depending on the exact design of the 

systems. 

A natural draft cooling tower is tall 42

and has a hyperbolic shape. The height 

of these towers creates a temperature 

differential between the top and bottom 

of the tower, creating a natural chimney 

effect that facilitates heat transfer as 

heated water contacts rising air. In 

contrast, mechanical cooling towers rely 

on motorized fans to draw air through 

the tower and into contact with the 

heated water. These towers are likely to 

be much shorter units than natural draft 

cooling towers,43 and due to their 

modular construction can be built in 

multiples, but they may require more 

land area for the same amount of 

cooling. Both types of towers require 

electricity for pumps, while mechanical 

draft towers also require electricity to 

operate the fans; both electricity needs 

serve to reduce a facility’s net 

generating output. Thus the monetary 

and environmental costs of making up 

this reduction in energy efficiency need 

to be considered. These environmental 

costs include human health and welfare 

effects from increased air emissions, 

including the global climate change 

effects of increased greenhouse gas 

output at fossil-fueled plants. Both 

natural draft and mechanical cooling 

towers can operate in freshwater or 

saltwater environments. Saltwater 

applications typically require more 

make-up water than freshwater 

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44Modular cooling tower units provide an 

additional cooling tower alternative. Modular 

cooling towers resemble mechanical cooling towers, 

but are portable, typically rented for short-term 

periods and quickly assembled. 

45 Dry cooling systems do blow down some of the 

circulating water within the cooling system to 

prevent the buildup of materials within the 

condenser. However, the volume of makeup water 

is extremely low—a dry cooling system typically 

reduces intake flows by 98–99 percent over a 

comparable once-through cooling system. 

46The construction and capital costs for dry 

cooling towers have been reported as five to 10 

times as expensive as wet cooling towers, and the 

parasitic load for dry cooling is higher than for wet 

cooling. See DCN 10–6679. 

47Note that this is entrainment exclusion and not 

necessarily related to the survival of entrainable 

organisms. See Section III.B.2 for more detail. 

applications, making them less efficient 

in reducing water withdrawals.44

Optimized cooling towers may achieve 

flow reductions of 97.5 percent or better 

and 94.9 percent or better for freshwater 

and saltwater sources, respectively. 

Dry Cooling Tower Systems 

Dry cooling systems virtually 

eliminate the need for cooling water 

withdrawals.45 Unlike wet cooling 

systems, in dry cooling systems, waste 

heat is transferred completely through 

convection and radiation, rather than 

evaporation. Direct dry cooling is much 

like a car radiator; turbine exhaust 

steam passes through tubes or fins and 

the condensate is returned for reuse in 

the turbine. The system is completely 

closed to the atmosphere and there is no 

contact between the outside air and the 

steam or the resulting condensate. Due 

to the heavy reliance of dry cooling on 

ambient air temperatures and the lower 

efficiency of heat transfer through 

convection and radiation, dry cooling 

towers are much larger and therefore 

more expensive 46 than wet cooling 

towers for a given cooling load. Dry 

cooling towers have been built in areas 

where limited water supplies exist for 

either once-through cooling or wet 

cooling make-up water, such as the arid 

southwestern U.S. Dry cooling is not 

demonstrated and available for nuclear 

facilities, due to the backup cooling 

systems and related safety needs 

required at a nuclear facility. 

Hybrid Cooling Tower Systems 

In certain applications, a facility may 

choose a hybrid cooling tower design 

that incorporates elements of both wet 

and dry cooling. Typically, the base of 

the tower functions as a wet cooling 

tower and the upper portion as a dry 

tower; the most common reason for this 

design is to reduce the visible plume 

emitted from the tower, which is 

accomplished by recapturing some of 

the water vapor evaporated in the wet 

portion of the tower. This design is also 

usually much shorter than natural draft 

wet towers, which can also offer plume 

abatement controls. 

2. Exclusion Technologies To Minimize 

Impingement and/or Entrainment 

Over the last several decades, in 

addition to flow reduction and closedcycle cooling, numerous technologies 

have been developed in an effort to 

minimize impingement and entrainment 

mortality associated with cooling water 

intake systems. The following 

summarizes the most widely used 

technologies as well as the most 

effective and best performing 

technologies. For additional detailed 

information on these technologies as 

well as others, see the TDD, CA Report, 

and EPRI report. 

a. Screens 

i. Traveling Screens 

Traveling screens are a technology in 

place at virtually all cooling water 

intake structures. These screens were 

originally designed to prevent debris 

from entering the cooling water system, 

but also prevent some fish and shellfish 

from entering the cooling water system. 

Traveling screens have been installed in 

numerous environmental conditions: 

Salt water, brackish water, fresh water, 

and icy water. Based on the technical 

survey, EPA found 93 percent of electric 

generators and 73 percent of 

manufacturers employ traveling screens 

or other intake screens. There are many 

types of traveling screens (e.g., through 

flow, dual flow, center flow). The most 

common design in the U.S. is the 

through flow system. The screens are 

installed behind bar racks (trash racks) 

but in front of the water circulation 

pumps. The screens rotate up and out of 

the water where debris (including 

impinged organisms) is removed from 

the screen surface by a high pressure 

spray wash. Screen wash cycles are 

triggered manually or by a certain level 

of head loss across the screen 

(indicating clogging). By definition, this 

technology works by collecting or 

‘‘impinging’’ fish and shellfish on the 

screen. Traveling screens are ideally 

used with a fish handling and return 

system, discussed further in Section 

VI.B.3 below. 

ii. Cylindrical Wedgewire Screens 

Cylindrical wedgewire screens, also 

called ‘‘V’’ screens or profile screens, 

unlike traveling screens, are a passive 

intake system. Wedgewire screens 

consist of a v-shaped, cross section wire 

on a framing system. Slot sizes for 

conventional traveling screens typically 

refer to a square opening (3⁄8′′ × 3⁄8′′) that 

is punched or woven into the screen 

face. Wedgewire screens are constructed 

differently, however, with the slot size 

referring to the maximum distance 

between longitudinally adjacent wires. 

These screens are designed to have a 

low through-slot velocity (less than 0.5 

ft/sec or 0.15 m/sec) and typically have 

smaller slot sizes than a coarse mesh 

traveling screen. The entire wedgewire 

structure is submerged in the source 

waterbody. 

When appropriate conditions are met, 

these screens exploit physical and 

hydraulic exclusion mechanisms to 

achieve consistently high impingement 

reductions (and as a result, 

impingement mortality reductions). 

Wedgewire screens require an ambient 

current crossflow to maximize the 

sweeping velocity provided by the 

waterbody. The screen orientation and 

cross current flow carries organisms 

away from the screen allowing them to 

avoid or escape the intake current. 

Lower intake velocities also allow fish 

to escape from the screen face. 

Entrainment reductions can potentially 

be observed when the screen slot size is 

small enough and intake velocity is low 

enough to exclude egg and larval life 

stages.47 There is also limited evidence 

suggesting that extremely low intake 

velocities can allow some egg and larval 

life stages to avoid the intake due to 

hydrodynamic influences of the cross 

current. Therefore performance is 

largely dictated by local conditions that 

are further dependent on the source 

waterbody’s biological composition. 

Costs of wedgewire screens also 

increases significantly as slot size and 

design intake velocity decrease. 

Wedgewire screens may also employ 

cleaning and de-icing systems such as 

air-burst sparging to aid in maintaining 

open intake structures and low intake 

velocities. 

According to data from the industry 

questionnaire, EPA’s site visits, and 

industry documents, dozens of facilities 

across the U.S. employ cylindrical 

wedgewire screens. However, 

wedgewire screens are not feasible for 

facilities with limited access to source 

water, such as shallow water or limited 

shoreline frontage. Wedgewire screens 

may also not be feasible where the size 

and number of wedgewire screens 

would interfere with navigational 

traffic. As described above, locations 

also need to have an adequate source 

water sweeping velocity. Most of the 

performance data for wedgewire screens 

is based on coarse mesh slot sizes with 

an intake velocity of 0.5 feet per second. 

As it is extremely difficult to measure 

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48Barrier net mesh sizes vary, depending on the 

configuration, level of debris loading, species to be 

protected, and other factors. 

49This facility ceased operations for reasons other 

than impingement and entrainment related to 

cooling water intake. 

impingement and entrainment 

reductions in the field, most 

performance data is based on barge 

studies and lab studies. EPA does not 

have data on the performance of fine 

mesh wedgewire screens on 

entrainment survival; therefore EPA has 

only considered wedgewire screens for 

impingement mortality. For additional 

discussion of the specific design and 

operation of cylindrical wedgewire 

screens, see the TDD. The following 

section discusses the importance of 

mesh size to impingement and 

entrainment mortality reductions. 

iii. Screen Mesh Size Considerations 

Coarse Mesh 

Coarse mesh traveling screens are the 

typical traveling screen fitted on the 

majority of cooling water intakes. A 

large number of facilities have intake 

screens with 3⁄8-inch (9.5 mm) mesh 

panels. This size mesh is common 

because, as a general rule of thumb, the 

maximum screen slot size is never larger 

than one half of the condenser tube 

diameter (the condenser tubing is the 

narrowest point in the cooling water 

system and, as such, is most susceptible 

to clogging from debris), and this tubing 

is typically 3⁄4 or 7⁄8 inches in diameter. 

Mesh of 3⁄8-inch (roughly 9.5 mm) does 

not prevent entrainment and in the 

absence of any other precautions can 

lead to high mortality of impinged fish. 

Coarse mesh traveling screens have been 

in use by both power plants and 

manufacturers for more than 75 years 

and represent the baseline technology. 

Similarly, the majority of successful 

wedgewire installations are coarse 

mesh. 

Fine Mesh 

Fine mesh traveling and wedgewire 

screens are similar to coarse mesh 

screens, with the only difference being 

the size of the screen mesh. The mesh 

size of fine mesh screens varies, 

depending on the organisms to be 

protected, but typically range from 0.5 

to 5 mm. Typically, facilities have 

incorporated fine mesh in an effort to 

reduce entrainment. Data in the record 

demonstrate that entrainment typically 

decreases as mesh size decreases. 

However, slot sizes larger than 2 mm do 

not prevent eggs from passing through 

the screen. Fine mesh traveling screens 

have been in use in this industry since 

the 1980s. EPA estimates as many as 17 

percent of existing intakes could not be 

expanded in size to accommodate a 2 

mm mesh, and as many as 55 percent of 

existing intakes could not accommodate 

a 0.5 mm slot size under conditions of 

low intake velocities. For these reasons, 

fine mesh screens are demonstrated for 

some locations, but are not the best 

performing technologies, and are not 

available technologies for the industry 

as a whole. See Chapter 6 of the TDD 

for more details. 

b. Barrier Nets 

Barrier nets are nets that fully encircle 

the intake area of water withdrawal, 

from the bottom of the water column to 

the surface and that prevent fish and 

shellfish from coming in contact with 

the intake structure and screens. 

According to data from the industry 

questionnaire (as of the year 2000), at 

least a half dozen facilities employ a 

barrier net. Typically, barrier nets have 

large mesh sizes (e.g., 1⁄2-inch or 12.7 

mm) 48 and are designed to prevent 

impingement. Due to the large mesh 

size, they offer no reduction in 

entrainment. They are often deployed 

seasonally, wherever seasonal 

migrations create high impingement 

events or to avoid harsh winter 

conditions which jeopardize integrity of 

the net. Barrier nets also prevent 

impingement of shellfish on the intake 

traveling screen. Shellfish such as 

crustaceans may pose a unique issue for 

traveling screens because the shellfish 

are not impinged, but rather they may 

grab hold of the traveling screen surface 

and are not removed from the traveling 

screen by pressure wash sprays. Barrier 

nets have been shown to be particularly 

helpful in this regard. For this reason, 

the costs of options considered today 

include the costs of barrier nets to 

minimize impingement mortality of 

shellfish. 

c. Aquatic Filter Barriers 

Aquatic Filter Barriers (AFBs), such as 

the Gunderboom Marine Life Exclusion 

System (MLES) or simply 

‘‘Gunderboom,’’ are similar to barrier 

nets in that they extend throughout the 

area of water withdrawal from the 

bottom of the water column to the 

surface. However, AFBs consist of water 

permeable fabric panels with small 

pores (< 20 microns). AFBs reduce both 

impingement mortality and entrainment 

because they present a physical barrier 

to all life stages. The surface area of an 

AFB is quite large compared to a 

traveling screen, allowing for extremely 

low water velocities. The low velocity 

allows non-motile organisms to drift 

away. EPA is aware of one power plant 

that used an AFB, but notes that this 

facility recently ceased operations.49

EPA has updated performance data for 

AFB for small flow intakes, but does not 

have enough data to evaluate the 

technology at large intakes and in all 

waterbodies. 

3. Collection and Return 

Conventional traveling screens were 

not designed with the intention of 

protecting fish and aquatic organisms 

that become entrapped against them. 

Marine life may become impinged 

against the screens from high intake 

velocities that prevent their escape. 

Prolonged contact with the screens may 

suffocate insufficiently strong species or 

certain susceptible life stages of fish. 

Exposure to high pressure sprays and 

other screening debris may cause 

significant injuries that result in latent 

mortality, or increase the susceptibility 

to predation or re-impingement. 

Organisms that do survive initial 

impingement and removal are not 

typically provided with a specificallydesigned mechanism to return them to 

the water body and are handled in the 

same fashion as other screening debris. 

Other objects collected on the screen are 

typically removed with a high-pressure 

spray and deposited in a dumpster or 

debris return trough for disposal. 

Screens are rotated periodically based 

on a set time interval or when the 

pressure differential between the 

upstream and downstream faces exceeds 

a set value. Conventional traveling 

screen systems have been modified to 

reduce impingement-related mortalities 

with collection and return systems. In 

simplest form, this is comprised of a 

return flume or trough with sufficient 

water volume and flow to enable 

impinged organisms to return to the 

source water. Return systems should be 

designed to avoid predation and latent 

mortality while organisms are in the 

flume, positioned at an appropriate 

water depth for high survival of the 

organisms, located at an appropriate 

elevation to avoid large drops of the 

organisms back to the surface water, and 

sited to avoid repeated impingement of 

the organisms by the intake structure. 

Following the 1972 Clean Water Act’s 

requirement to require technology-based 

solutions to minimize adverse 

environmental impacts, some 

conventional coarse mesh traveling 

screen systems were modified to reduce 

impingement mortality by removing fish 

trapped against the screen and returning 

them to the receiving water with as few 

injuries as possible. The first modified 

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50 Velocity as measured at the velocity cap 

opening. 

screens, also known as ‘‘Ristroph’’ 

screens, feature capture and release 

modifications. In the simplest sense, 

these screens are fitted with troughs 

(also referred to as buckets) containing 

water that catch the organisms as they 

rise out of the water and are sprayed off 

of the screen. The return component 

consists of a gentle mechanism to 

remove impinged fish from the 

collection buckets, such as a lowpressure spray. The buckets empty into 

a collection trough that returns fish to 

a suitable area in the source water body. 

These modified screens have shown 

significant improvements in reducing 

impingement mortality compared with 

unmodified screen systems. 

Data from early applications of the 

‘‘Ristroph’’ screen design showed that 

while initial survival rates might be 

high at some installations, latent 

mortality rates were higher than 

anticipated, indicating significant 

injuries could be sustained during the 

impingement and return process that 

were not immediately fatal. Based on a 

study conducted by Ian Fletcher in the 

1990s (see DCN 5–4387), industry 

identified several additional critical 

screen modifications to address latent 

mortality. These include redesign of the 

collection buckets to minimize 

turbulence, addition of a fish guard rail/ 

barrier to prevent fish from escaping the 

collection bucket, replacement of screen 

panel materials with ‘‘fish friendly’’ 

smooth woven mesh, and a low pressure 

wash to remove fish prior to any high 

pressure spray to remove debris on the 

ascending side. The Fletcher analysis 

also identified that longer impingement 

duration, insufficient water retention in 

the buckets, and exposure to the air and 

temperature extremes could negatively 

impact fish survival. Finally, these 

findings indicate that modified Ristroph 

screens must be continually rotated 

instead of the periodic rotation schedule 

common with conventional screen 

systems. Performance data for modified 

traveling screens with fish return 

systems show low levels of 

impingement mortality across a wide 

variety of water body types and fish 

species. Therefore, EPA has concluded 

modified traveling screens with a fish 

return system is a candidate best 

performing technology for impingement 

mortality. 

For additional and more detailed 

discussion of the specific design and 

operation of these screen modifications, 

see the TDD. 

4. Intake Location and Velocity Caps 

Currently, the most common intake 

location for a cooling water intake 

structure is along a shoreline. In some 

types of waterbodies, shoreline 

locations are thought to have the 

potential for greater environmental 

impact because the water is withdrawn 

from the most biologically productive 

areas especially with regards to earlier 

life stages. Some facilities employ an 

offshore intake to withdraw water from 

less biologically productive areas to 

reduce entrainment relative to intakes 

located in more productive shoreline 

areas, though impingement (and 

therefore impingement mortality) 

reductions have also been observed. 

Obviously, reduction in impingement 

mortality and entrainment depend on 

intake location at a particular site, but 

the greatest potential for reductions is 

found with far offshore locations at 

distances of several hundred feet, 

something not possible on many rivers 

and streams. Both depth and the 

offshore location must be evaluated to 

determine if fish densities and species 

distribution at the offshore location are 

substantially different than those near 

the shoreline. Two areas where far 

offshore locations are commonly used 

today include the oceans and Great 

Lakes. 

EPA found most offshore intakes are 

fitted with a velocity cap. Velocity caps 

are a physical structure rising vertically 

from the sea bottom and placed over top 

of the intake pipe. Intake water is 

withdrawn through openings in the 

velocity cap in a manner which converts 

the direction of flow from vertical to 

horizontal. The horizontal flow provides 

a physiological trigger in fish to induce 

an avoidance response thereby reducing 

impingement mortality. The velocity 

cap further serves to limit the zone of 

influence of the intake to the depth level 

at which the velocity cap is situated, 

thus affecting only the life stages that 

live at that depth. Furthermore, the 

velocity at an offshore intake is lower 

than the velocity of an equivalent sized 

intake at the shoreline due to 

differences in pressure, resulting in a 

lower intake velocity at the velocity cap 

than at a shoreline intake. Velocity caps 

are also usually equipped with supports 

and bar spacing selected to prevent 

larger aquatic organisms (e.g., turtles or 

marine mammals) from entering the 

intake pipe. Because velocity caps 

operate under the principle that the 

organisms can escape the current, 

velocity caps do not offer entrainment 

reductions over and above those 

achieved by being located offshore. 

Reductions in entrainment observed 

with velocity caps occur due to the 

difference in organism densities in far 

offshore deep water compared to a 

surface intake at the shoreline. 

For additional and more detailed 

discussion of the specific design and 

operation of offshore intake locations 

and velocity caps, see the TDD. 

5. Reduced Intake Velocity 

Impingement mortality can be greatly 

reduced by reducing the through-screen 

velocity in any screen. Reducing the rate 

of flow of cooling water through the 

screen (through-screen velocity) to 0.5 

ft/sec or less reduces impingement of 

most fish because it allows them to 

escape the intake current. (See 66 FR 

65274 and DCN 2–028A, EPRI’s 

‘‘Technical Evaluation of the Utility of 

Intake Approach Velocity as an 

Indicator of Potential Adverse 

Environmental Impact Under Clean 

Water Act 316(b).’’) Limited lab studies 

indicate that entrainment also may 

decrease as through-screen velocity 

decreases and that through-screen 

velocity may have an effect on 

entrainment survival rates, although 

such data is extremely variable by 

species (see DCN 10–6802 and DCN10– 

6803). As a result, some Phase II 

facilities have designed and operate 

their modified traveling screens or 

wedgewire screens so as not to exceed 

a through-screen velocity of 0.5 ft/sec. 

In addition, for the reasons described in 

Section VI.B.2, aquatic filter barriers 

and velocity caps 50 are likely to have 

velocities of 0.5 ft/sec or less. Swim 

speed studies demonstrate that for most 

facilities, an intake velocity of 0.5 feet 

per second or less results in 90 percent 

or better reductions in impingement 

mortality for most species. (EPA notes 

that preliminary results from recent 

studies of fine mesh screens suggest that 

at even lower intake velocities such as 

0.25 feet per second, there may be some 

hydrodynamic influences that reduce 

entrainment mortality even more, 

because flow dynamics are nonlinear. It 

is unclear whether such observations 

hold true when cooling water 

withdrawals (water volumes) are large.) 

Therefore, EPA has concluded reduced 

intake velocity is a candidate best 

performing technology for impingement 

mortality. 

C. Technology Basis for Today’s 

Proposed Regulation 

As described in the previous section, 

EPA examined the full range of 

technologies that reduce impingement 

and/or entrainment, and evaluated these 

technologies based on their efficacy in 

reducing impingement and entrainment, 

availability, and cost. Based on an 

assessment of these factors, EPA has 

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51The annual average should not be confused 

with a rolling average of the preceding 12 months; 

EPA has specified in the rule language at § 125.96 

that the annual average means 12 consecutive 

months as specified by the Director. EPA expects 

that compliance with the annual average standard 

would be determined once each calendar year. 

identified three best performing 

technologies for further analysis as the 

basis for today’s proposed rule: 

Modified traveling screens with a fish 

return (for fish impingement), barrier 

nets (for shellfish impingement on tidal 

waters), and mechanical draft wet 

cooling towers (for impingement and 

entrainment at new units). Although 

EPA has identified velocity reduction to 

0.5 feet per second or less as a candidate 

best performing technology for 

impingement mortality, EPA is not 

proposing reduced intake velocity as 

BTA because it is not available at all 

facilities, but is allowing facilities to 

comply with intake velocity of 0.5 feet 

per second or less where available. 

EPA has concluded that modified 

traveling screens, such as Ristroph 

screens and equivalent modified 

traveling screens are a best performing 

technology for impingement mortality. 

These screens use coarse size mesh with 

collection buckets designed to minimize 

turbulence, a fish guard rail/barrier to 

prevent fish from escaping the 

collection bucket, ‘‘fish friendly’’ smooth 

woven mesh, and a low pressure wash 

to remove fish prior to any high 

pressure spray to remove debris on the 

ascending side. The fish removal spray 

must be of lower pressure and the fish 

return must be fish friendly and provide 

sufficient water and minimize 

turbulence. Modified traveling screens 

must generally be continually rotated to 

obtain the highest reductions in 

impingement mortality. As discussed in 

Section III, traveling screens with postFletcher modifications achieve a 

monthly impingement mortality of 31 

percent mortality (performance 

corresponding to the 95th percentile of 

the beta distribution) under conditions 

of 48 hour or less holding times. The 

use of the 95th percentile is consistent 

with the convention EPA has used for 

monthly average limitations in the 

effluent guidelines program (i.e., for 

pollutant discharges). In developing the 

monthly average standard proposed for 

this rule, EPA has taken into account 

the reasonable anticipated variability in 

impingement mortality that may occur 

at a well-operated facility. Variability 

occurs due to changes in seasons, 

differing intake locations, higher 

mortality of certain species, and 

speciation found in different water 

bodies. 

In contrast to the monthly average, 

which is adjusted to reflect month-tomonth variability in performance of the 

technology, EPA has not included an 

upward adjustment of the annual 

average 51 standard to account for yearto-year variability. The annual average 

standard requires that impingement 

mortality not exceed 12 percent, 

calculated as the average of monthly 

impingement mortality for 12 

consecutive months as determined by 

the Director. The 12 percent value 

corresponds to the long-term average 

performance of the technology that EPA 

has identified as BTA, based on 

available data from eight episodes of 

sampling collected on three different 

waterbody types over all seasons (see 

Chapter 11 of the TDD for more 

information). EPA expects facilities to 

track their compliance with the annual 

average standard on an ongoing basis, 

and to proactively modify their 

technology or operations when any 

individual monthly average suggests 

that they may be in danger of exceeding 

the annual average standard in the 

future. 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. While EPA’s data show a 

long-term average performance of 12 

percent impingement mortality for the 

BTA technology, EPA believes that by 

continuously monitoring and adaptively 

adjusting the operation of the 

technology, facilities can achieve a 

better long-term performance than is 

documented in the data, and thus 

consistently meet the annual average. 

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 and operation 

of the technology 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. 

EPA selected the seasonal deployment 

of barrier nets on estuaries and oceans 

as the best performing technology for 

minimizing the impingement mortality 

of shellfish (crustaceans) because no 

other technology has been identified 

that is available, demonstrated, and 

feasible. EPA did not select wedgewire 

screens as a candidate technology for 

impingement mortality because 

wedgewire screens are not available and 

feasible for all existing facilities. 

Wedgewire screen performance requires 

an adequate crossflow of the source 

water that is not present in all 

waterbodies. Wedgewire screens also 

require a minimum water depth in order 

to fully submerge the screens; the 

requisite depth and space to submerge 

the screens is not available at all 

locations, and further may pose an 

obstacle to navigation. However, where 

passive screens such as cylindrical 

wedgewire screens are feasible, data in 

the record shows they would perform 

equally as well or better than seasonal 

deployment of barrier nets. EPA has 

included a provision in the proposed 

regulation that specifies that passive 

screens meet the IM requirement for 

shellfish. 

One technology for reducing 

impingement mortality as well as 

reducing entrainment mortality is wet 

cooling towers. Mechanical cooling 

towers achieve flow reductions of 97.5 

percent for freshwater and 94.9 percent 

for saltwater sources by operating the 

towers at a minimum of 3.0 and 1.5 

cycles of concentration, respectively. 

Based on the high levels (greater than 95 

percent on average) of flow reduction 

obtained by optimized cooling tower 

operation, EPA has identified wet 

cooling towers as a candidate best 

performing technology for both 

impingement mortality and entrainment 

mortality for new units at existing 

facilities. As discussed further below, 

EPA is not proposing cooling towers as 

BTA for existing facilities (other than 

new units) because it is not available on 

a national basis. As described in Section 

VI.B, other technologies are 

demonstrated, but are not the best 

performing technologies and/or are not 

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available technologies for the industry 

as a whole. 

Although, EPA’s record shows 

numerous instances of existing facility 

retrofits to closed-cycle, EPA has not 

identified it as BTA for the reasons 

discussed below. EPA has also not 

identified any other available and 

demonstrated candidate technology for 

entrainment mortality that is available 

on a national basis; see Section VI.B and 

the TDD for other entrainment 

technologies that may be available on a 

site-specific basis. EPA did not select 

the other flow reduction technologies 

such as variable speed drives and 

seasonal flow reductions as the 

technology basis for entrainment 

mortality because these technologies are 

not feasible for all facilities. Further, 

EPA has not identified a basis for 

subcategorizing existing facilities for 

where these flow reduction technologies 

are feasible, because their seasonal 

operation depends on the site-specific 

biology of the facility. EPA did not 

select relocation of a shoreline intake to 

far offshore as a technology basis 

because this technology is not feasible 

for all facilities. Even if EPA 

subcategorized by water body type (i.e., 

intake location), the performance of wet 

cooling towers for entrainment mortality 

is at least three times that of a far 

offshore intake. Therefore relocation of 

the intake is not the best performing 

technology for minimizing entrainment 

mortality. 

D. Options Considered for Today’s 

Proposed Regulation 

After careful consideration of the 

technologies available as described in 

Section VI.C, EPA developed four 

primary options based on these 

technologies for today’s proposed rule. 

Three of the options would require the 

same impingement mortality standards, 

but would vary the approach to 

entrainment mortality controls. The 

fourth option would allow both 

impingement and entrainment mortality 

controls to be established on a sitespecific BPJ basis for facilities with a 

DIF less than 50 MGD. The options are 

described briefly below, followed by a 

discussion of EPA’s evaluation of each 

option as BTA. 

1. Option 1—Uniform Impingement 

Mortality Controls at All Existing 

Facilities; Site-Specific Entrainment 

Controls for Existing Facilities (Other 

Than New Units) That Withdraw Over 

2 MGD DIF; Uniform Entrainment 

Controls for All New Units at Existing 

Facilities 

Under this option, all existing 

facilities withdrawing more than 2 MGD 

would be required to meet either the 

design or the performance standard for 

impingement mortality. Entrainment 

controls would be established by the 

permitting authority on a case-by-case 

basis taking into account those factors at 

a particular facility that are specified in 

today’s proposal and the information 

required by the existing permit 

regulations at § 122.21(r)(1)–(8) for all 

facilities with at least 2 MGD DIF. In 

addition, under EPA’s CWA sections 

301, 308, 316(b), and 402 authority, in 

the case of facilities withdrawing greater 

than 125 MDG AIF (actual intake flow), 

the site-specific determination of BTA 

would be based on a submission of 

certain other required information. The 

proposal would amend the permit 

application requirements at 

§ 122.21(r)(9)–(11) to require the facility 

to prepare an Entrainment 

Characterization Study that would fully 

characterize the amount of entrainment 

at the facility. (See below for more 

details about the study). In addition, 

under the proposal, the facility would 

provide detailed information on the 

other factors relevant to the Director’s 

site-specific BTA determination. These 

would include information concerning 

the technologies available for control of 

such entrainment, the costs of controls, 

the non-water quality impacts of such 

controls, and both the monetized and 

non-monetized benefits of such 

controls. The CWA requires, and EPA 

encourages, the public to have a role in 

the permitting process; therefore EPA 

has also included meaningful public 

opportunity for participation in the sitespecific decision making to help ensure 

the soundness of both the information 

and subsequent determinations. 

a. Impingement Mortality Controls 

As described earlier in this section, 

traveling screens have undergone a 

number of technological improvements 

over the years and modern screens have 

proven to be highly effective in 

promoting the survival of impinged 

organisms. The proposed rule requires 

the use of state-of-the-art screens with 

fish buckets, a low pressure spray wash, 

a dedicated fish return line, etc., but is 

not specifying any particular screen 

configuration, mesh size or screen 

operations, so long as facilities can 

consistently meet the numeric 

impingement mortality limits 

(impingement mortality also includes a 

design standard for shellfish). EPA is 

also not specifying additional design or 

operational criteria to promote 

development of improved technologies, 

and to allow facilities to use variations 

such as dual flow traveling screens and 

drum screens. 

EPA did not select intake velocity as 

the sole technology basis for 

impingement mortality controls 

because, although the performance of 

0.5 feet per second intake velocity is 

slightly better than the selected 

technology, the intake velocity is not 

available or feasible for all existing 

facilities (see Chapter 6 of the TDD). 

However, EPA has long recognized the 

relationship between impingement and 

intake velocity. EPA conducted an 

analysis of fish swim speeds in the 

Phase I rule (see 66 FR 65274) and 

concluded that a design through-screen 

velocity of 0.5 feet per second would be 

protective of 96% of motile organisms. 

As a result, a facility may chose to 

comply with the impingement mortality 

standards in today’s proposed rule by 

instead demonstrating that the throughscreen design velocity does not exceed 

0.5 feet per second, or by demonstrating 

that the actual average intake velocity 

does not exceed 0.5 feet per second. 

While the data shows the majority of 

healthy motile organisms would be 

protected by a maximum intake velocity 

of 0.5 feet per second, some species 

would not be adequately protected. 

Some facilities employ traveling 

screens, but do not have fish friendly 

modifications such as a fish handling 

and return system. EPA is concerned 

that some facilities would comply with 

the impingement mortality requirements 

by the intake velocity compliance 

alternative, and would continue to 

operate unmodified traveling screens. 

This is particularly a concern where the 

traveling screens are located in a 

forebay, potentially resulting in 

entrapment of any impinged organisms. 

Therefore, EPA is considering a 

provision that would require facilities to 

either demonstrate that the species of 

concern are adequately protected by the 

maximum intake velocity requirements, 

or to employ specific fish friendly 

protective measures including, at a 

minimum, a fish handling and return 

system. EPA solicits comment and data 

on such a provision. 

EPA did not select wedgewire screens 

as the technology basis for impingement 

mortality controls because wedgewire 

screens are not available and feasible for 

all existing facilities. EPA also did not 

need to include wedgewire screens as a 

compliance alternative because 

wedgewire screens designed with an 

intake velocity of 0.5 feet per second 

can demonstrate compliance with the 

impingement mortality limits based on 

the intake velocity as just described. 

EPA did not select flow reduction by 

retrofit to closed-cycle cooling as the 

technology basis for impingement 

mortality because closed-cycle cooling 

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costs more than 10 times that of 

modified traveling screens with a fish 

return system. In other words, modified 

traveling screens with a fish return 

system and closed-cycle cooling are 

comparable in impingement mortality 

performance, but modified traveling 

screens with a fish return system is 

more cost-effective than flow reduction 

at preventing impingement mortality. 

EPA is not including wet cooling towers 

as a compliance alternative (e.g., a preapproved technology) because EPA’s 

data shows existing facilities that 

retrofit to a closed-cycle cooling system 

have an intake velocity of less than 0.5 

feet per second. As a practical matter, 

make-up water withdrawals are made at 

such low velocities that facilities with 

closed-cycle can demonstrate 

compliance with the alternative reduced 

intake velocity to meet the impingement 

mortality limits. For estuaries and 

oceans, EPA is proposing seasonal 

deployment of barrier nets on estuaries 

as the technology basis for minimizing 

the impingement mortality of shellfish 

(crustaceans) because no other 

technology has been identified that is 

available, demonstrated, and feasible. 

As noted previously, use of wedgewire 

screens (along with the limitations on 

intake velocity) obviates the need for 

barrier nets. 

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 selection 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 sitespecific analysis of entrainment BTA 

options, as discussed below. 

In the case of site-specific 

entrainment controls for facilities 

withdrawing greater than 125 MGD AIF, 

EPA’s proposal would, in addition, 

require these facilities to develop and 

submit an entrainment characterization 

study for use by the Director in 

establishing site-specific BTA. See 

Section V.F for more on development of 

the 125 MGD threshold. (Facilities 

under the 125 MGD AIF threshold must 

still provide certain water body and 

water population information under the 

current permit applications 

requirements at § 122.21(r)). An early 

step in conducting the entrainment 

characterization study is the preparation 

of an entrainment mortality data 

collection plan, which must be 

submitted to the Director for review and 

comment before implementation. The 

entrainment mortality data collection 

plan would include, at a minimum, the 

specific entrainment monitoring 

methods, taxonomic identification, 

latent mortality identification, 

documentation of all methods, and 

quality assurance/quality control 

procedures for sampling and data 

analysis appropriate for a quantitative 

survey. EPA would also require peer 

review of the entrainment mortality data 

collection plan. Peer reviewers would 

be selected in consultation with the 

Director who may consult with EPA and 

federal, State, and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). 

The Entrainment Characterization 

Study would include information 

already collected to meet current 

§ 122.21(r)(4) requirements. In addition, 

under the new permit application 

requirements proposed for 

§ 122.21(r)(5)–(12), the facility would 

submit certain additional site-specific 

information. This would include an 

engineering study of the technical 

feasibility and incremental costs of 

candidate entrainment mortality control 

technologies. The facility would also 

study, evaluate, and document: the 

technical feasibility of technologies at a 

minimum including closed-cycle 

cooling and fine mesh screens with a 

mesh size of 2 mm or smaller; 

engineering cost estimates of all 

technologies considered; any outages, 

downtime, or other impacts to revenue 

along with a discussion of all reasonable 

attempts to mitigate these cost factors; 

and a discussion of the magnitude of 

water quality and other benefits, both 

monetized and non-monetized, of the 

candidate entrainment mortality 

reduction technologies evaluated. 

Finally, the information must include a 

discussion of the changes in non-water 

quality factors attributed to technologies 

and/or operational measures 

considered, including but not limited to 

increases and decreases in the 

following: energy consumption; thermal 

discharges; air pollutant emissions 

including particulates and associated 

human health and global climate change 

impacts; water consumption; noise; 

safety (e.g., visibility of cooling tower 

plumes, icing); grid reliability, and 

facility reliability. See Section IX for a 

thorough discussion of these study 

requirements. 

Under this option, it is EPA’s 

expectation that the Director would 

review the candidate technologies for 

entrainment mortality control that at a 

minimum includes closed-cycle cooling 

and fine mesh screens. In the decision 

about what additional entrainment 

controls (if any) to require, the Director 

would consider all of the facilityspecific factors described above. At a 

minimum, the Director must provide a 

discussion explaining how issues 

concerning local energy reliability, air 

emissions or land availability insofar as 

they relate to the feasibility of adoption 

of a particular entrainment technology, 

remaining useful plant life, and the 

relationship of social benefits to social 

costs were addressed in the site-specific 

determination. Under the proposal, the 

Director must issue a written 

explanation for the basis of the BTA 

determination for each facility. EPA also 

expects the written explanation would 

provide a review of the social costs (and 

not just the facility costs (see chapter 11 

of the EA) 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). 

Under Option 1, new units at an 

existing facility that withdraws more 

than 2 MGD would have requirements 

similar to the requirements of a new 

facility in Phase I. Under this option, 

new units would be required to reduce 

flow commensurate with closed-cycle 

cooling for the new unit. Under the 

proposal, as with Track II of the Phase 

I rule, a facility could demonstrate 

compliance with entrainment control 

requirements by establishing reductions 

in entrainment mortality for the new 

unit that are 90 percent of the 

reductions that would be achieved by 

closed-cycle cooling. 

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2. Option 2—Impingement Mortality 

Controls at All Existing Facilities That 

Withdraw Over 2 MGD DIF; Require 

Flow Reduction Commensurate With 

Closed-Cycle Cooling by Facilities 

Greater Than 125 MGD DIF and at New 

Units at Existing Facilities 

Under Option 2, all in-scope existing 

facilities would be required to achieve 

the numeric impingement mortality 

limits described in Option 1 above. In 

addition, this option would require flow 

reduction commensurate with closedcycle cooling by facilities greater than 

125 MGD DIF and at new units. Option 

2 explores using the facility size, in 

terms of design intake flow (DIF), as a 

factor for establishing different BTA for 

different subcategories. EPA’s analysis 

shows that a DIF of 125 MGD would be 

an appropriate threshold for this 

purpose; see Section V. For all facilities 

that withdraw over 2 MGD but less than 

or equal to 125 MGD DIF, entrainment 

controls would be determined by the 

permitting authority on a case-by-case 

basis taking into account the factors at 

a particular facility. Facilities greater 

than 125 MGD DIF would not submit 

Entrainment Characterization Studies 

(because under this option this rule 

would have already determined that 

closed cycle is BTA for that facility), but 

all facilities would still submit 

§ 122(r)(2)–(r)(7) to the Director to 

inform the BTA determination as 

described in Option 1. Requirements for 

new units at an existing facility would 

be the same as described in Option 1. 

EPA also considered a variation of 

this option that uses 125 MGD Actual 

Intake Flow (AIF) rather than 125 MGD 

Design Intake Flow (DIF) as the 

threshold. Setting the threshold at 125 

MGD AIF would allow a Permit Director 

to treat differently those facilities that 

are above 125 MGD on a DIF basis but 

below 125 MGD on an AIF basis relative 

to today’s Option 2. EPA traded off 

introducing more flexibility at those 

facilities for simplicity of 

implementation (DIF is static), but 

solicits comment on both the threshold 

and the flow basis for this option. 

The technology basis for entrainment 

mortality controls for facilities greater 

than 125 MGD DIF under this option 

would be wet cooling towers as 

described in Section VI.B. The record 

shows optimized wet cooling towers 

achieve flow reductions of 97.5 percent 

and 94.9 percent for freshwater and 

saltwater sources, respectively. 

Optimized operation of wet cooling 

towers would be demonstrated through 

flow monitoring and conductivity 

measurements. Alternatively, this 

option would allow facilities to 

demonstrate flow reductions 

commensurate with closed-cycle 

cooling based on optimized wet cooling 

towers. 

As part of this option, EPA would 

provide flexibility to the Director to 

establish compliance timelines for each 

existing facility to mitigate grid 

reliability and local electricity 

reliability. Under this option, most 

existing facilities would have no more 

than 10 years to complete the retrofit to 

closed-cycle cooling. Under this option 

the Director would determine when and 

if any such schedule for compliance is 

necessary, and if the facility is 

implementing closed-cycle as soon as 

possible. This provision would give the 

Director the discretion to provide 

nuclear facilities with no more than 15 

years to complete the retrofit, because 

all nuclear facilities are baseload 

generating units and the additional 

flexibility in timelines would further 

mitigate energy reliability, and because 

the retrofits at these types of facilities in 

particular involve additional 

complexities and safety issues. The 

Director would have the discretion to 

provide manufacturing facilities with no 

more than 15 years to complete the 

retrofit due to the complexity of 

manufacturing facilities, multiple 

process units and product lines, and to 

allow consideration of production 

schedules in setting such a timeline. 

3. Option 3—Establish Impingement 

Mortality Controls at All Existing 

Facilities That Withdraw Over 2 MGD 

DIF; Require Flow Reduction 

Commensurate With Closed-Cycle 

Cooling at All Existing Facilities Over 2 

MGD DIF 

Under this option, all in-scope 

existing facilities would be required to 

achieve numeric impingement mortality 

limits as described in Option 1 above. 

In addition, this option would require 

flow reduction commensurate with 

closed-cycle cooling by all facilities 

(including new units at existing 

facilities) as described in Option 2. This 

option would similarly authorize the 

Director to establish compliance 

timelines for each existing facility to 

mitigate grid reliability and local 

electricity reliability as described in 

Option 2 above. Requirements for new 

units at an existing facility would be the 

same as described in Option 1. 

4. Option 4—Uniform Impingement 

Mortality Controls at Existing Facilities 

With Design Intake Flow of 50 MGD or 

More; BPJ Permits for Existing Facilities 

With Design Intake Flow Between 2 

MGD and 50 MGD DIF; Uniform 

Entrainment Controls for All New Units 

at Existing Facilities 

Under Option 4, only in-scope 

existing facilities with a design intake 

flow of 50 MGD or more would be 

required to comply with uniform 

national impingement regulatory 

requirements as described in Option 1 

above. In-scope facilities with a design 

intake flow less than 50 MGD would not 

be subject to the national impingement 

requirements in today’s proposed rule 

but would continue to have their 316(b) 

permit requirements established on a 

case-by-case, best professional judgment 

basis. In the case of an existing facility 

below 50 MGD that adds a new unit, the 

flow associated with the new unit 

would be subject to the uniform 

entrainment requirements based on 

closed cycle cooling. Finally, all 

existing facilities withdrawing in excess 

of 2 MGD of design intake flow would 

be subject to entrainment controls 

established on a site-specific basis. 

EPA considered additional 

thresholds, subcategories, and other 

factors to explore other options; see 

Chapter 7 of the TDD for more 

information. In particular, EPA 

considered an approach that required 

impingement mortality controls only, 

but is not proposing such an approach 

because it would only address one-third 

of the mortality due to impingement and 

entrainment on a nationwide basis and 

EPA believes there is value in the 

structured site-specific entrainment 

BTA determination required in Option 

1. As discussed in Section VI.E, EPA is 

aware of technologies that can further 

reduce entrainment mortality for some 

facilities. EPA also considered an 

approach that would establish both 

impingement and entrainment mortality 

requirements on a case-by-case basis 

taking into account the factors at a 

particular facility, but is not proposing 

such an approach because there are lowcost technologies for impingement 

mortality that are available, feasible, and 

demonstrated for facilities on a national 

basis. EPA requests comment on these 

and the other approaches discussed in 

Chapter 7. 

E. Option Selection 

EPA is proposing Option 1 as best 

technology available for minimizing 

adverse environmental impact under 

section 316(b) of the CWA. As 

previously explained, in evaluating 

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technologies that reduce impingement 

or entrainment mortality as the possible 

basis for section 316(b) requirements, 

EPA assessed a number of different 

technologies. Based on this technology 

assessment, EPA concluded that closedcycle cooling reduces impingement and 

entrainment mortality to the greatest 

extent. 

But EPA has determined that closed 

cycle cooling is not the ‘‘best technology 

available’’ for this proposal. After 

considering all of the relevant factors, 

EPA proposes that it should not 

establish a uniform BTA entrainment 

standard based on closed-cycle cooling 

for existing facilities other than for new 

units. Instead, for existing facilities 

other than new units, EPA is proposing 

that the permitting authority should 

establish BTA entrainment mortality 

controls on a site-specific basis. Sitespecific proceedings are the appropriate 

forum for weighing all relevant 

considerations in establishing BTA 

entrainment mortality controls as 

discussed in section F below. 

EPA proposes to reject closed-cycle 

cooling as the basis for national 

entrainment controls and choose an 

option under which the permitting 

authority would establish entrainment 

controls on a site-specific basis after 

considering specified factors. EPA 

concluded that closed-cycle is not the 

best technology available for 

minimizing adverse environmental 

impact on a national basis. The record 

shows that closed-cycle cooling is not 

practically feasible in a number of 

circumstances. While EPA cannot 

identify with precision the extent of 

these limitations on installation on 

closed-cycle on a nation-wide basis, 

EPA knows that the circumstances are 

not isolated or insignificant. In light of 

this, EPA decided that it should not 

establish closed-cycle cooling as the 

presumptive BTA entrainment control. 

Instead, entrainment controls should be 

determined in a site-specific setting 

where the opportunity for local 

community input in decision-making 

process will be maximized. 

Four factors, in particular, led EPA, 

for this proposal, to reject a uniform 

standard based on closed-cycle cooling 

and illustrate why site-specific standard 

setting is the proper approach here. 

These factors are energy reliability, air 

emissions permits, land availability, and 

remaining useful plant life. Further 

explanation is provided below as to why 

these factors support establishing BTA 

entrainment mortality control on a sitespecific basis as discussed in section F 

below. 

As noted, the Supreme Court in its 

Entergy decision determined that EPA 

may permissibly consider the benefits, 

both quantitative and qualitative, 

derived from reductions in the adverse 

environmental impacts associated with 

cooling water intake structures and the 

costs of achieving them and determine 

the extent of reductions warranted 

under the circumstances. Further, E.O. 

13563 directs agencies, to the extent 

permitted by law, to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs (recognizing that some benefits 

and costs are difficult to quantify). E.O. 

13563, Sec. 1(b)(1). 

Pursuant to the principles spelled out 

in the Executive Order, EPA has 

assessed costs and benefits for its 

proposed regulatory option and has 

reasonably determined that the benefits 

of its proposed rule justify the costs. 

EPA has analyzed the social cost of this 

rule to be $384 million annually. New 

unit requirements would cost $15 

million per year. As will be described in 

more detail below, there are significant 

benefits associated with the proposed 

rule. These benefits include the annual 

reduction in impingement of 615 

million age-one equivalents. In addition, 

there are important other benefits that 

EPA was not able to fully quantify such 

as reductions in impingement and 

entrainment at new units, impacts to 

many shellfish species, and non-use 

values associated with the vast majority 

of fish and shellfish. The rule would 

also require establishing site-specific 

entrainment control through a process 

in which specific environmental 

conditions and the localized benefits of 

entrainment reductions will be assessed 

along with the costs of controls. The 

information generated in the required 

studies would enhance the transparency 

of decision-making, and the opportunity 

for meaningful public participation and 

ensure decision-making based on the 

best available data. Overall, these 

requirements will foster protection and 

restoration of healthy aquatic 

ecosystems that have important 

commercial, recreational, aesthetic and 

cultural values to their surrounding 

communities. Many of the benefits that 

would result from the rule are not 

quantified, and as a result the Agency’s 

quantitative benefits analysis 

underestimates the totality of the rule’s 

benefits. Based on the record, EPA has 

determined that the proposed 

impingement and entrainment mortality 

controls will result in benefits that 

justify the costs of the rule. 

EPA would also note that its valuation 

of the benefits is not yet complete. For 

example, 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. These categories of 

benefits that are not fully valued are 

often referred to as non-use benefits: 

those benefits people derive absent a 

use or activity, such as fishing; the value 

one places on knowing that an aquatic 

ecosystem is healthy is a non-use value. 

Non-use benefits could be more 

completely evaluated than they have 

been to date. EPA intends to 

characterize these benefits more fully 

through the use of a stated preference 

survey of the general population and 

will consider the results of this survey 

analysis in development of the final 

rule. Although not discussed in this 

preamble, EPA also conducted an 

alternative benefits analysis that is 

suggestive of the potential for a more 

complete analysis to result in monetary 

benefits that are much more in line with 

social costs (see chapter 9 of the EEBA). 

These factors all lend further support to 

EPA’s conclusion that benefits 

associated with the proposal justify its 

costs. 

EPA is proposing that the permitting 

authority would consider social costs 

and benefits on a site specific basis in 

establishing entrainment mortality 

controls. This approach is consistent 

with the direction of E.O. 13563 and 

supported by several considerations. 

On the basis of currently available 

information, a national evaluation of 

benefits no matter how accurate would 

necessarily fail to account for the 

variations in benefits from location to 

location. A national assessment would 

tend to mask variations in benefits and 

costs from different geographical 

locations for different water bodies. 

Thus for example, some fish species at 

coastal facilities have biological 

spawning attributes that differ from 

those at other locations. The proportion 

of the receiving water withdrawn for 

cooling may also vary among sites. The 

values that communities place on their 

resources may vary from site to site. As 

a consequence, for example, one 

ecological environment may experience 

large masses of hardier eggs subject to 

potential entrainment while another 

will have fewer but less hardy eggs 

susceptible to entrainment. The 

resulting differences in the value of 

reduced entrainment—which may be 

dramatic for some sites—necessarily 

disappear in a national aggregation of 

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results. The Agency has decided this 

masking of variation in benefits 

supports a requirement to consider the 

localized benefits of entrainment control 

technologies in the site-specific process 

to establish entrainment mortality 

controls. 

Today’s proposed rule establishes 

requirements based on closed-cycle 

cooling for new units added to an 

existing facility that are not a ‘‘new 

facility’’ as defined at § 125.83. The 

requirements for new units are 

essentially the same as the requirements 

for a new facility in the Phase I rule. 

EPA also considered a variation of 

Option 1 that would exclude existing 

facilities (except existing facilities that 

add a new unit) with a design intake 

flow under 50 MGD from the national 

impingement mortality requirements of 

today’s proposal (Option 4). These 

smaller facilities would continue to be 

permitted on a case-by-case, best 

professional judgment basis for both 

impingement and entrainment controls. 

Under this option, 98.9 percent of the 

monetized benefits of Option 1 are 

realized. In addition, almost all small 

businesses would be excluded from the 

impingement requirement of the 

national rule, thereby reducing impacts 

of the national rule to small businesses. 

The cost of Option 4 would result in 

savings of $57 million over Option 1. 

EPA rejected Option 4 for the 

proposal as BTA because EPA found 

that Option 1 is available, feasible, and 

demonstrated for all in-scope facilities 

on a national basis. Moreover, EPA 

analysis showed that economically 

Option 1 does not have a significant 

impact on a substantial number of small 

entities, including those that would be 

exempted from the national 

impingement mortality controls under 

Option 4. Of the 13 full-facility closures 

discussed below in Section VII, none are 

predicted to be small businesses. 

Additionally, the analysis performed 

under the Regulatory Flexibility 

Analysis showed that under Option 1, 

five to six small entities would incur 

costs exceeding 1 percent of revenue 

and 3 small entities would incur costs 

exceeding 3 percent of revenue. As 

percentages of the estimated total of 

small in-scope entities (56–96 small inscope entities, see above), these small 

entities represent 5–13 percent of small 

in-scope entities at the 1 percent of 

revenue threshold, and 3–5 percent of 

small in-scope entities at the 3 percent 

of revenue threshold. 

Option 4 is similar to the final 

determination with respect to the Phase 

III rule, which relied on BPJ to 

determine impingement and 

entrainment BTA for all facilities with 

DIF less than 50 MGD. Unlike the Phase 

III determination, Option 4 would not 

rely on BPJ for new units at existing 

facilities or manufacturing facilities 

with DIF greater than 50 MGD. This is 

consistent with the recommendations of 

the Small Business Advocacy Review 

Panel for the Phase III rule, which noted 

that an applicability threshold in the 

range of 20 to 50 MGD would remove 

a significant number of Phase III 

facilities, but only a small percent of 

flow, from coverage under national 

requirements, and recommended that 

EPA analyze a range of potential 

thresholds, particularly those between 

20 and 50 MGD. EPA is also aware of 

concerns that even though Option 1 by 

itself does not have a significant adverse 

impact on a substantial number of small 

entities, many of the small entities 

affected by the rule, particularly those 

in the electric power sector, are subject 

to cumulative impacts from a number of 

other major regulations that will likely 

have to be implemented in the same 

time frame as this rule. For the final 

rule, EPA will also evaluate the relative 

costs and benefits of Option 4, once it 

has more complete benefits information, 

including results from its WTP Survey 

on impacts to fish populations. EPA 

solicits comment on Option 4 and the 

impacts, including the cumulative 

impacts of today’s proposal on small 

entities generally. 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 closedcycle cooling. 

F. Four Factors Support EPA’s Decision 

To Establish Site-Specific BTA 

Entrainment Controls for Existing 

Facilities 

The four key factors that support 

determining entrainment mortality 

controls on a site-specific basis (except 

with respect to new units) and rejecting 

Options 2 and 3 are energy reliability, 

increased air emissions, land 

availability, and remaining useful life. 

First, EPA recognized that there may be 

potential adverse consequences to the 

reliability of energy delivery on the 

local level from the installation of 

cooling towers. Second, EPA also is 

aware that increased air emissions may 

be associated with increased 

combustion of fossil fuel as the result of 

installation of closed cycle cooling, and 

additional PM formulation associated 

with plume drift (even with plume 

abatement technology). These increased 

air emissions have human health, 

welfare, and global climate change 

impacts which must be considered. 

Furthermore, 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. Third, EPA has identified land 

availability concerns that might limit 

the feasibility of the installation of 

cooling towers on a site-specific basis. 

Finally, EPA concluded that there are 

circumstances in which construction 

and installation of cooling towers might 

not be warranted given the remaining 

useful life of a particular facility. How 

all of these factors support the Agency’s 

conclusion that site-specific, not 

national, entrainment controls for most 

existing facilities except those installing 

new units is discussed in detail below. 

1. Energy Reliability Should Be 

Considered on a Localized Basis 

During EPA’s site visits, several urban 

areas were identified where the existing 

transmission system would not be able 

to transfer sufficient electricity during 

periods of extended downtime. This 

limitation to reliability occurs even 

when a surplus of electricity can be 

generated within the same NERC region. 

For example, EPA identified localized 

circumstances in Los Angeles and 

Chicago where an extended outage of 

one or more generating units could not 

be readily replaced by excess capacity 

in nearby areas. Currently available 

models are not able to predict localized 

impacts, and instead are limited to 

measures of reserve capacity in broader 

geographic regions. This uncertainty 

about the extent and likelihood of local 

reliability impacts is an important 

consideration in the decision to propose 

requiring site-specific development of 

section 316(b) entrainment 

requirements. 

One approach EPA could have 

adopted in today’s proposed rule would 

have been to establish a uniform 

entrainment requirement and then to 

address these local reliability concerns 

by providing permitting authorities the 

flexibility to establish extended 

compliance timelines (i.e., 10 to 15 

years) (see Option 2). This would have 

allowed facilities to develop more 

workable construction schedules with 

their permit writers and coordinate with 

NERC to schedule installation down 

times accounting for generating supply 

reliability needs. This approach 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; see EA for 

more information. EPA was concerned 

that such a flexible approach, however, 

would not resolve all local reliability 

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52EPA recognizes that retrofitting closed cycle 

cooling could be combined with other energy 

efficiency or pollution control technologies with the 

net effect of reducing air emissions; however, 

facilities could (and may well have to under other 

rules) install such technologies anyway, without 

converting to closed cycle cooling as well. 

Comparing closed-cycle cooling to once-through 

cooling with all other technologies held constant, 

there is an energy penalty that would lead to greater 

air emissions. 

53 In the case of fossil fuel plants, scrubber 

controls may also be newly required to comply with 

air rules and standards. 

54EPRI reported at least 6 percent of sites 

evaluated were deemed ‘‘infeasible’’ on the basis 

that no space was available on which to locate a 

cooling tower. (DCN 10–6951) While EPA does not 

have access to the facility level data, and is 

therefore unable to confirm the infeasibility 

analysis, EPRI’s report supports EPA’s assertion that 

there is significant uncertainty around space 

constraints for facilities to install closed-cycle 

cooling. 

concerns, because currently available 

information is not adequate to establish 

either the extent or significance of 

possible electric reliability concerns. 

These same concerns would not apply 

in the case of the installation of new 

units because of the smaller nature of 

such projects and the availability of 

options like seasonal operation and 

portable cooling towers to address the 

flow reduction requirements. Since the 

unit is not yet online, the potential for 

local energy reliability to be 

compromised is minimal; also, local 

energy reliability is likely improved 

with the addition of the new unit, even 

if older units are later retired. 

2. Increased Air Emissions Could Be a 

Factor on a Local Basis 

As previously discussed, closed-cycle 

cooling would result in increased air 

emissions of various pollutants, 

including particulates, sulfur dioxide, 

nitrogen oxides, mercury, and 

greenhouse gases, among others.52 As a 

result of the installation of closed-cycle 

cooling structures, fossil-fueled facilities 

would need to burn additional fuel 

(thereby emitting additional PM, CO2, 

SO2, NOX, and Hg). There are two 

reasons for this: (1) To compensate for 

energy required to operate cooling 

towers, and (2) slightly lower generating 

efficiency attributed to higher turbine 

backpressure. In contrast to retrofits, 

new units can have their cooling water 

intake systems optimized for cooling 

towers, reducing the size of the cooling 

towers, increasing their efficiency, and 

reducing energy requirements (see 

Section VI.E). 

The impact of the increased emissions 

varies based on the local circumstances. 

The increased emissions may consist of 

cooling tower emissions, stack 

emissions from increased fuel usage, 

and plumes of water vapor. EPA’s 

analysis suggests that the most 

significant impacts will be specifically 

for PM2.5, which, in addition to 

increased mortality and morbidity, may 

result in a facility having difficulty in 

obtaining air permits in those localities 

in non-attainment for PM2.5 because of 

the need to identify offsets to its 

emissions. EPA notes that while there is 

the potential for increases in PM (e.g., 

salt drift) in the vicinity of any wet 

cooling tower, there are plume 

abatement and drift eliminator 

technologies that may address this 

concern (and EPA has included costs for 

such technologies in its analysis of 

Options 2 and 3). However, emissions 

may not be eliminated entirely. EPA 

expects most effects of PM from cooling 

tower emissions would be so localized 

as to be wholly on the facility’s 

property. (See DCN 10–6954.) EPA 

recognizes this is separate from PM 

emissions from the stack as a result of 

increased fuel usage. In addition, 

plumes of water vapor from the cooling 

tower may cause safety issues due to 

icing of nearby roadways, and visibility 

constraints for facilities located near an 

airport. EPA’s review of emissions data 

from E–GRID (year 2005) suggests that 

impacts from other pollutants will be 

less significant, but on a localized basis 

these could still be significant. They 

include human health, welfare, and 

global climate change impacts 

associated with a variety of pollutant 

that are emitted from fossil fuel 

combustion generally. EPA is not able to 

quantify the frequency with which 

facilities may experience these local 

impacts, and therefore EPA believes a 

site-specific assessment must be 

conducted to fully address such local 

impacts. 

EPA believes that emissions are less 

of a concern at new units. The 

condensers can be optimized for closedcycle, reducing energy requirements, 

and high efficiency cooling towers can 

be incorporated into the design of the 

new unit, potentially allowing for 

installation of smaller cooling towers. 

Turbine backpressure and the associated 

energy penalty can be eliminated in a 

new unit. However, new units will still 

have a parasitic energy penalty. 

Therefore energy penalties and air 

emissions for tower operations can be 

minimized but not eliminated. The 

effects of requiring closed cycle cooling 

at new units of existing facilities is 

similar to the effects of this requirement 

at new facilities and would not pose an 

unacceptable impact. See the TDD for 

more information. 

3. Land Availability Could Be A Factor 

on a Localized Basis 

While EPA’s record indicated that the 

majority of facilities have adequate 

available land for placement of cooling 

towers,53 some facilities do have 

feasibility constraints. Based on site 

visits, EPA has found that several 

facilities have been able to engineer 

solutions when faced with limited 

available land. EPA attempted to 

determine a threshold of land (for 

example, one option explored a 

threshold of approximately 160 acres 

per GW) below which a facility could 

not feasibly install cooling towers. 

While EPA originally estimated as many 

as 23 percent of facilities would not 

have enough space,54 EPA found some 

facilities with a small parcel of land 

were still able to install closed-cycle 

cooling by engineering creative 

solutions. On the other hand, EPA 

found that some facilities with large 

acreage still could not feasibly install 

cooling towers due to local zoning or 

other local concerns. In conjunction 

with setback distances to mitigate noise 

and plume abatement (based on GPS 

mapping of residential areas), EPA 

estimates 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. At this 

time, EPA lacks adequate data to better 

analyze how land constraints can be 

accommodated at existing facilities. 

In contrast, for new units, because the 

amount of space dedicated to closedcycle would be limited to the new unit 

rather than the entire facility, space 

constraints would be much less of an 

issue. New units also pose the 

opportunity to properly design an 

optimized closed-cycle cooling system 

for the new unit. Retrofitting an existing 

facility would require a facility to 

identify (or possibly obtain) enough 

acres to accommodate the cooling 

towers and their tie-in. By not uniformly 

requiring facilities to retrofit to closedcycle, EPA has determined that more 

land is available for new unit 

construction, especially in light of 

compact design and more efficient use 

of limited resources. Furthermore, new 

units and their corresponding cooling 

system can be built in stages rather than 

as a facility-wide retrofit. 

While EPA has concluded that space 

constraints would not foreclose the 

installation of closed cycle cooling for 

new units at existing facilities, EPA has 

concerns about whether, on a national 

basis, physical geography would 

constrain the full retrofit of closed-cycle 

cooling to existing facilities. Under the 

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circumstances, EPA decided not to 

propose uniform entrainment standards 

for all existing facilities based on 

closed-cycle cooling. Instead, EPA has 

determined that it should establish a 

process for site-specific determination 

of entrainment controls. Site-specific 

proceedings would provide the 

opportunity to address these issues, 

along with the other factors discussed in 

this preamble in determining which 

additional entrainment mortality 

controls, if any, are appropriate. 

4. Remaining Useful Plant Life Could Be 

a Factor on a Facility Basis 

Many facilities are nearing the end of 

their useful life. Considering the long 

lead time to plan, design, and construct 

closed-cycle cooling systems such as 

wet cooling towers, EPA proposes that 

the permit authority should be given the 

latitude to consider the remaining 

useful plant life in establishing 

entrainment mortality standards for that 

facility. The remaining useful plant life 

along with other site-specific 

information, would affect the evaluation 

of the benefits (non-monetized and 

monetized) of closed-cycle at a 

particular facility. For example, closedcycle at a facility that is going to shut 

down in 3 years would not result in the 

benefits that a facility that would 

continue to operate for 20 years. 

Because of this factor, EPA proposes 

that requiring closed-cycle cooling 

should be evaluated on a facilityspecific basis, arguing against a uniform 

national entrainment mortality 

standard. 

This is obviously not an issue for new 

units. A new unit has its full useful life 

before it and thus would experience the 

maximum possible entrainment 

mortality reductions throughout that 

useful life. Considering this factor, EPA 

is proposing that new units be treated 

the same as new facilities. EPA believes 

this factor, along with the other factors 

discussed above, indicates that it is 

reasonable to require new units to meet 

entrainment mortality requirements 

based on closed-cycle cooling. 

G. The Process for Establishing SiteSpecific BTA Entrainment Controls 

EPA believes that the factors 

discussed above support establishment 

of BTA entrainment requirements on a 

site-specific basis and counsels against 

establishing a national rule based on a 

single BTA technology for entrainment 

controls. In addition, there are other 

factors that also support site-specific 

decision-making. Thus, as noted, for 

example, a national weighing of cost 

and benefits tends to mask important 

local differences and argues for sitespecific evaluations. 

As a result, EPA proposes that closedcycle cooling for all existing units is not 

BTA on a national basis, except for new 

units at existing facilities. 

EPA has decided to propose Option 1 

as the basis for national performance 

standards that represent the ‘‘best 

technology available’’ for cooling water 

intake structures at existing facilities. 

EPA proposes that a uniform national 

impingement standard coupled with 

entrainment controls determined on a 

site-specific basis represents the best 

technology available for minimizing the 

adverse environmental impacts 

associated with intake structures. EPA’s 

proposed decision to reject a single 

uniform national entrainment standard 

is based on closed-cycle cooling not 

being the ‘‘best technology available’’ on 

a national basis and not warranted 

under the circumstances. This proposed 

decision flowed from EPA’s 

consideration of the factors described 

above and its conclusion that 

determination of BTA for entrainment 

through a process that allowed full and 

site-specific assessment of these factors 

with respect to candidate entrainment 

controls including closed-cycle cooling 

represented the most appropriate course 

here. 

H. Implementation 

EPA’s proposal would require a sitespecific determination of BTA. In that 

process, the permit writer would have 

access to all the information necessary 

for an informed decision about which 

additional technology to reduce 

entrainment mortality, if any, is BTA, 

including a full consideration of 

whether the benefits justify the costs. 

The adoption of the proposed Option 

1 approach of site-specific BTA 

entrainment decisions will result in one 

of two outcomes at any facility: BTA is 

an entrainment mortality technology 

beyond what the facility has already 

installed (this may include closed cycle 

cooling or other technologies, see 

Section VI.B and C), or BTA requires no 

additional controls for entrainment 

mortality. Thus, EPA expects that, 

under the proposed approach, there will 

be additional entrainment controls for 

some facilities and none for others. 

EPA notes that in a number of areas 

of the country (California, Delaware, 

New York and New England; see, e.g., 

DCNs 10–6963 and 10–6841, as well as 

EPA Region I’s Brayton Point), 

permitting authorities have already 

required or are considering requiring 

existing facilities to install closed-cycle 

cooling operations. EPA supports those 

state efforts and determinations and 

thinks that similar decisions would be 

able to be made under this proposed 

rule. 

The proposal would require that the 

facility’s permit application must 

include the following information: The 

facility would submit an engineering 

study of the technical feasibility and 

incremental costs of candidate 

entrainment mortality control 

technologies. The facility would also 

study, evaluate, and document: the 

technical feasibility of technologies at a 

minimum including closed-cycle 

cooling and fine mesh screens with a 

mesh size of 2 mm or smaller; 

engineering cost estimates of all 

technologies considered; any outages, 

downtime, or other impacts to revenue 

along with a discussion of all reasonable 

attempts to mitigate these cost factors; 

and a detailed discussion of the 

magnitude of water quality benefits, 

both monetized and non-monetized, of 

the candidate entrainment mortality 

reduction technologies evaluated. 

Finally, the study must include a 

detailed discussion of the changes in 

non-water quality factors attributed to 

technologies and/or operational 

measures considered, including but not 

limited to increases and decreases in the 

following: energy consumption; thermal 

discharges; air pollutant emissions 

including particulates and their health 

and environmental impacts; noise; 

safety (e.g., visibility of cooling tower 

plumes, icing); grid reliability, and 

facility reliability. See Section IX for a 

thorough discussion of these study 

requirements. 

Certain facilities would submit an 

Entrainment Characterization Study 

including an entrainment mortality data 

collection plan that would indicate, at a 

minimum, the specific entrainment 

monitoring methods, taxonomic 

identification, latent mortality 

identification, documentation of all 

methods, and quality assurance/quality 

control procedures for sampling and 

data analysis appropriate for a 

quantitative survey. EPA would also 

require peer review of the entrainment 

mortality data collection plan. Peer 

reviewers would be selected in 

consultation with the Director who may 

consult with EPA and Federal, State, 

and Tribal fish and wildlife 

management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). Further, facilities 

with greater than 125 MGD AIF must 

complete an Entrainment 

Characterization Study (ECS). The ECS 

could include information already 

collected to meet current § 122.21(r)(2)– 

(r)(4) requirements. With the 

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55 Distinctions between predator and prey cannot 

be made on the basis of species alone; the young 

of some recreational and commercial species 

function as forage fish. 

information in this study, the permit 

writer will know more about potential 

entrainment mortality reductions. Data 

from the ECS would also corroborate 

any through-plant entrainment survival 

study results from Performance Studies 

conducted in 122.21(r)(7). Data 

collected as part of the ECS would 

support the Benefits Valuation Study in 

122.21(r)(11) by parsing entrainment 

mortality, for example, by recreational/ 

commercial species and those species 

that are strictly forage species,55 by 

species most susceptible to thermal 

effects (including thermal barriers), and 

by species of particular local or regional 

concern and threatened and endangered 

species. EPA’s benefits estimate were 

based on an extrapolation of available 

I&E mortality studies; the specific 

entrainment characterization study 

conducted by a facility may lead to a 

different estimate of I&E mortality for 

that facility than its portion of EPA’s 

regional estimate in the analysis in 

Section VIII. 

The purpose of the ECS is to better 

understand, and thus help minimize, 

the impact of entrainment on species of 

concern. More specifically, the ECS 

should identify species of concern that 

may be entrained, and estimate their 

baseline mortality rates given current 

entrainment controls. Moreover, the 

ECS should include as much 

information as practical about the 

aquatic ecosystem effects of entrainment 

mortality of species of concern. An 

understanding of the potential 

ecosystem consequences of entrainment 

mortality for species of concern will 

help inform decisions about permit 

requirements for additional technologies 

and management practices. EPA will 

endeavor to identify high quality 

examples of ECSs as they are completed, 

and post them to the web site for this 

rule as a resource for ECS preparation. 

Following the permit writer’s review 

of this information, the permit writer 

must determine what BTA entrainment 

standard to propose and explain in 

writing the basis for the proposal. The 

written explanation and the draft permit 

would then be available for comment 

from the interested public under the 

Permitting Authority’s normal 

permitting process. Therefore, EPA’s 

proposed BTA standard would establish 

uniform requirements for impingement 

mortality and a process in which BTA 

entrainment controls would be 

determined on a site-specific basis. 

I. EPA’s Costing of the Preferred Option 

For the purposes of this proposal, 

EPA has prepared an economic analysis 

according to Executive Order 12866. For 

the preferred option, this analysis 

incorporates the full costs and partially 

monetized benefits of impingement 

controls, including the costs of 

conducting the entrainment 

characterization studies. There may be 

additional costs and benefits associated 

with reductions in entrainment 

mortality that result from the Director’s 

BTA entrainment determinations. 

Because this process will play out over 

the next 10 to 15 years as Directors 

consider waterbody-specific data, local 

impacts, and public comment, and 

weigh costs and benefits of further 

entrainment reductions, air quality 

impacts, grid reliability, and land 

availability, estimates of the costs of 

these site-specific determinations would 

be highly speculative. 

For illustrative purposes, EPA 

analyzed two hypothetical outcomes for 

site-specific BTA determinations under 

Option 1. EPA analyzed the cost of 

closed-cycle at the 76 largest fossil fuel 

plants withdrawing from tidal waters 

and arrived at an annual compliance 

cost for these facilities of $762 million. 

EPA also analyzed a variant on the 

above scenario. EPA estimates this 

second scenario would involve 46 

facilities at an annual compliance cost 

of $480 million, assuming only baseload 

and load following facilities would 

retrofit to closed-cycle cooling. 

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. 

J. Consideration of Cost/Benefit on a 

Site-Specific Basis 

In establishing performance standards 

for entrainment controls, as the 

Supreme Court in Entergy made clear, 

one factor that EPA may consider is the 

costs and benefits associated with 

various control options. That is, in 

setting standards, EPA may consider the 

benefits derived from reductions in the 

adverse environmental impacts 

associated with cooling water intake 

structures and the costs of achieving the 

reductions. As previously explained, 

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. 

In the site-specific proceeding, the 

permit writer would be required to 

consider, among other factors, 

quantified and qualitative social 

benefits and social costs of available 

entrainment controls, including 

ecological benefits and benefits to any 

threatened or endangered species. The 

permit writer would be able to reject 

otherwise available entrainment 

controls if the costs of the controls are 

not justified by their associated benefits 

(taking into account both quantified and 

non-quantified benefits) as well as the 

other factors discussed in the proposed 

rule. 

In making the site-specific 

entrainment BTA determination, the 

proposal would require that the Director 

consider the information required under 

§ 122.21(r) to be submitted with the 

section 316(b) permit application. 

Further, in the case of the larger cooling 

water intake structures (125 MGD AIF or 

greater), the proposed rule would 

require submission of additional 

information including, among other 

things, studies on entrainment at the 

facility, the costs and feasibility of 

control options, and information on the 

monetized and non-monetized benefits 

of entrainment controls. In evaluating 

benefits, the Director should not ignore 

benefits that cannot be monetized and 

consider only the I&E reductions that 

can be counted. 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. 

Under the proposal, the Director must 

explain the basis for rejecting an 

available technology not selected for 

entrainment control in light of the 

submissions, with a consideration of the 

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same four factors that argued against a 

uniform requirement for closed-cycle 

cooling. EPA expects that the Director’s 

decision about BTA controls will also 

reflect consideration of the costs and 

benefits (monetized and non-monetized) 

of the various control technologies 

considered for the facilities. 

As noted, the permit writer may reject 

an otherwise available entrainment 

technology as BTA (or not require any 

BTA controls) if the costs of the controls 

are not justified by the benefits. EPA 

decided to adopt this approach in 

determining site-specific entrainment 

controls because it is permissible under 

Entergy and consistent with the more 

than 30-year history of section 316(b) 

permitting decisions as well as E.O. 

13563. 

This history illustrates the role that 

cost/benefit considerations have played. 

As early as 1977, EPA issued a 

permitting decision and a General 

Counsel opinion that explained that, 

while Section 316(b) does not require a 

formal cost-benefit analysis, the 

relationship of costs and benefits may 

be considered in 316(b) decisionmaking. In re Pub. Serv. Co. of N.H. 

(Seabrook Station, Units 1 and 2), No. 

76–7, 1977 WL 22370 (June 10, 1977), 

remanded on other grounds, 572 F.2d 

872 (1st Cir. 1978); accord In re Central 

Hudson Gas & Elec. Corp., Op. EPA 

Gen. Counsel, NPDES No. 63, 1977 WL 

28250, at *8 (July 29, 1977). In the more 

than 30 years since then, EPA and state 

permitting authorities have considered 

the relationship between costs and 

benefits to some extent in making 

individual permitting decisions. See, 

e.g., In re Pub. Serv. Co. of N.H. 

(Seabrook Station, Units 1 and 2), No. 

76–7, 1978 WL 21140 (E.P.A. Aug. 4, 

1978), aff’d, Seacoast Anti-Pollution 

League v. Costle, 597 F.3d 306, 311 (1st 

Cir. 1979). 

Because E.O. 13563 directs agencies 

to propose and adopt rules only upon a 

reasoned determination that the benefits 

justify the costs, EPA is proposing to 

apply this same standard in BTA 

entrainment determinations. This 

approach is consistent with the 

framework EPA has traditionally 

followed and would allow for a full 

assessment in permit decisions of both 

qualitative and quantitative benefits and 

costs. As designed, EPA’s proposed 

requirement for the establishment of 

site-specific BTA entrainment 

requirements strikes an appropriate 

balance between environmental 

improvements and costs, allowing the 

permitting authority to consider all of 

the relevant factors on a site-specific 

basis and determine BTA on the basis of 

those factors. 

After considering all of the factors 

relevant to a particular site, the Director 

must establish appropriate entrainment 

controls at those facilities. The Director 

must review available control 

technology and may reject otherwise 

available entrainment controls as BTA if 

the social costs of the controls are not 

justified by their social benefits (taking 

into account both quantified and nonquantified benefits) or if there are other 

adverse factors that cannot be mitigated 

that the Director deems unacceptable. 

As designed, EPA’s proposed 

requirement for the establishment of 

site-specific BTA entrainment 

requirements strikes an appropriate 

balance between environmental 

improvements and costs by electively 

requiring closed-cycle cooling or other 

entrainment technologies at some 

facilities, without requiring the same 

technologies at all facilities. 

VII. Economic Impact of the Proposed 

Rule 

This section summarizes EPA’s 

analysis of the social cost and economic 

impact for the following regulatory 

options: Option 1: Impingement 

mortality (IM) limitations based on 

modified traveling screens for all 

facilities with flow greater than 2 

million gallons per day (MGD), closed 

cycle cooling or its equivalent for new 

units, and a site-specific determination 

of entrainment BTA for all other 

facilities: Option 2: Intake flow 

commensurate with closed-cycle 

cooling for facilities that have a design 

intake flow of greater than 125 MGD and 

IM limitations based on modified 

traveling screens for all facilities with 

flow greater than 2 MGD; Option 3: 

Intake flow commensurate with closedcycle cooling for all facilities and IM 

limitations based on modified traveling 

screens, for all facilities with flow 

greater than 2 MGD; and Option 4: 

Impingement mortality (IM) limitations 

based on modified traveling screens for 

all facilities with flow greater than 50 

million gallons per day (MGD), closed 

cycle cooling or its equivalent for new 

units, and a site-specific determination 

of entrainment BTA for all other 

facilities and of impingements mortality 

controls for facilities with flow less than 

or equal to 50 MGD. These options are 

described more fully in Section VI.C. 

The first part of this section provides 

an overall summary of the costs of the 

regulatory options to complying 

facilities and federal and state 

governments. This discussion is 

followed by a review of the method for 

developing compliance cost estimates. 

The third part provides an estimate of 

the total social costs of the regulatory 

options. The final part reviews the 

economic impact of the regulatory 

options. 

A. Overview of Costs to Complying 

Facilities and Federal and State 

Governments 

For estimating the total cost and 

economic impact of the regulatory 

options presented in this preamble, EPA 

estimated costs associated with the 

following cost components: Initial fixed 

and capital costs, annual operating and 

maintenance costs, downtime costs, 

recordkeeping, monitoring, studies, and 

reporting costs. The cost estimates 

reflect the incremental costs attributed 

only to today’s proposal. For example, 

facilities with closed-cycle recirculating 

systems would likely already meet all of 

the proposed performance standards, 

and therefore most facilities with 

closed-cycle cooling would not incur 

costs to retrofit new technologies 

(though such facilities would still incur 

some components of permitting costs). 

EPA assumes, based on its technical 

survey data that most closed-cycle 

cooling systems operate with an intake 

velocity of less than 0.5 fps, and so 

would comply with the impingement 

BTA requirements. However, EPA 

recognizes a facility with closed-cycle 

cooling may incur additional costs to 

meet the proposed performance 

standards; some facilities with closedcycle cooling were assumed to incur 

costs of modified screens with a fish 

handling and return system. Because 

EPA assumes the fish handling and 

return system would meet the 

requirements to eliminate entrapment, 

EPA has not included further costs for 

entrapment. 

For the economic analyses, EPA 

distinguished between the two industry 

groups covered by the standards for 

existing facilities as follows: 

Manufacturing and Other Industries 

(‘‘Manufacturers’’)—facilities in the paper, 

aluminum, steel, chemicals, petroleum, food 

and kindred products, and other industries. 

In addition to engaging in production 

activities, some of these facilities also 

generate electricity for their own use and 

occasionally for sale. Electric power 

producers (‘‘Electric Generators’’)—facilities 

owned by investor-owned utilities, 

municipalities, States, Federal authorities, 

cooperatives, and nonutilities, whose 

primary business is electric power generation 

or related electric power services. 

Costs to complying Electric 

Generators and Manufacturers include 

technology costs, cost of installation 

downtime, and costs of administrative 

activities; in addition, electric 

generating facilities are expected to 

incur certain energy penalty costs (see 

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56EPA notes that, while it has not collected 

updated technical information for every facility, it 

has updated financial data, as discussed later in this 

section. 

57For purposes of energy reliability estimates, 

EPA used the Difficult level for electric generators. 

Chapter 3 of the EBA report for a 

discussion of costs to complying 

facilities and of implementation costs to 

federal, State, and local governments). 

Manufacturing facilities may also need 

additional electricity to run certain 

technologies, but if they do not produce 

this electricity themselves, these 

additional energy requirements are 

included in operating costs, rather than 

accounted for separately as an energy 

penalty. Electric Generators incurring 

these costs include facilities owned by 

private firms, governments, and electric 

co-operatives. Manufacturers incurring 

these costs include facilities owned by 

private firms only. The administrative 

costs to federal, State, and local 

governments include the costs of rule 

implementation—e.g., permits, 

monitoring, and working with in-scope 

facilities to achieve compliance. Costs 

are initially developed on a pre-tax, as 

incurred, basis. These costs underlie the 

analysis of the social costs of the 

regulatory options and are also used in 

assessing the impact of compliance 

requirements on in-scope facilities and 

the affected industrial categories. In the 

analysis of facility impacts, costs are 

accounted for on an after-tax basis. 

B. Development of Compliance Costs 

This section describes the data and 

methods used to estimate compliance 

costs of the options considered and the 

costs of today’s proposed rule. Costs 

were developed for technology controls 

to address impingement mortality 

separately from controls for entrainment 

mortality, as the requirements of the 

various rule options considered would 

lead to different technologies being used 

by each facility to comply. Some of the 

options considered would impose 

different compliance timelines for 

impingement mortality and entrainment 

mortality technologies. As a result, 

different methodologies were used and 

each is briefly described below. More 

detailed information on these 

methodologies, as well as costs of other 

technologies and regulatory approaches, 

are available in the TDD. 

1. Combined Facility-Specific and 

Model-Facility Approach 

EPA develops national level costs 

estimates for facilities within scope of 

the various regulatory options. In 

general, facility-specific data can be 

used to determine what requirements 

apply to a given facility or whether that 

facility would already meet the 

requirements set forth in the proposed 

rule. This approach requires facilityspecific technical data for all of the 

approximately 1,200 existing facilities 

in scope. An alternative approach is to 

develop a series of model facilities that 

exhibit the typical characteristics of the 

affected facilities and calculate costs for 

each model facility; EPA would then 

determine how many of each model 

facility would be needed to accurately 

represent the full universe of affected 

facilities. 

EPA has estimated costs for 

potentially regulated facilities using a 

combination of the facility-specific and 

model facility approaches. The facilityspecific approach used in this effort 

involved calculating compliance costs 

for 891 individual facilities for which 

EPA had detailed technical data from its 

various industry questionnaires 

regarding the intake design and 

technology. Specifically, these are the 

in-scope facilities that completed the 

detailed technical questionnaire. Where 

facilities reported data for separate 

cooling water intake structures (CWISs), 

compliance costs may have been 

derived for each intake and these intake 

costs were summed together to obtain 

total costs for each facility. These 

facilities became model facilities and 

each facility’s costs were then 

multiplied by a weighting factor 

(derived from a statistical analysis of the 

industry questionnaire) specific to each 

facility to obtain industry-wide costs for 

the national economic impacts analyses. 

The weighting factors are similar to ones 

derived during the development of the 

2004 Phase II Rule for extrapolating the 

impacts of DQ facilities to all in-scope 

facilities. 

2. Updates to the Survey Data 

In the 2004 Phase II rule, EPA 

developed facility-specific cost 

estimates for all facilities and published 

those costs in Appendix A (69 FR 

41669). Since the initial implementation 

of the 2004 Phase II rule, EPA identified 

several concerns with using only the 

facility-specific costing approach, as 

well as the use of those costs in 

Appendix A. Since 2004, EPA has 

collected data from industry and other 

groups as described in section III. These 

data generally reflect changes to actual 

intake flow, design intake flow, intake 

velocity, technology in place, and 

operational status. EPA developed a 

new master database including this new 

data to supplement the data from the 

detailed technical questionnaire. 

Although it has been approximately 10 

years since the detailed technical 

questionnaire was initially collected, 

EPA has conducted over 50 site visits, 

reviewed current permits, and 

conducted literature reviews including 

comparisons to data collected by EPRI, 

EIA, and EEI. Based on that review EPA 

has concluded the master database is 

representative and appropriate for most 

facilities.56 The following section 

describes how EPA used this new 

database to estimate compliance costs. 

3. Tools for Developing Compliance 

Costs 

During the 2004 Phase II rule, EPA 

began developing a spreadsheet based 

tool that would provide facilities and 

permit authorities with a simple and 

transparent method for calculating 

facility-specific compliance costs. EPA 

refined the tool in developing the Phase 

III regulations. EPA has since made 

further refinements to the cost tool, 

which was used to calculate the 

compliance costs for impingement 

mortality for today’s proposed rule. The 

cost tool employs a decision tree (see 

the TDD for a graphical presentation of 

the decision tree) to determine a 

compliance response for each model 

facility and assigns a technology 

‘‘module’’ that represents a retrofit to a 

given technology. Cost estimates are 

derived through a series of 

computations that apply facility-specific 

data (such as DIF, width of intake 

screens, etc.) to the selected technology 

module. Cost tool outputs include 

capital costs, incremental operation and 

maintenance (O&M) costs, and 

installation downtime (in weeks). 

To calculate the compliance costs of 

retrofitting to closed-cycle cooling for 

controlling entrainment mortality, EPA 

utilized a second tool based on a costestimating spreadsheet developed by the 

Electric Power Research Institute (EPRI). 

EPRI’s first draft methodology presented 

three different levels of capital cost 

(Easy, Average, Difficult) based on the 

relative difficulty of the retrofit project. 

For electric generators, EPA used costs 

for the Average level of difficulty, as it 

was developed across a broad spectrum 

of facilities and is the most appropriate 

for estimating national level costs.57 For 

manufacturers, EPA used the Difficult 

level of retrofit costs. This reflects the 

more complex water systems and 

generally more frequent technical 

challenges to retrofitting closed-cycle 

cooling at a manufacturing facility. 

While some manufacturers only 

withdraw cooling water for power or 

steam generation, many manufacturers 

have multiple units or processes that 

utilize cooling water. In site visits, EPA 

found the largest manufacturing 

facilities would require multiple 

retrofits, and accordingly believes the 

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58The EPRI tool includes drift abatement 

technologies in its cost assumptions, so no 

additional costs were included for drift eliminators. 

59As described in the TDD, EPA only used noncontact cooling water flows in determining the 

proper size for wet cooling towers, the technology 

that forms the technical basis for entrainment 

mortality. Cooling towers are not widely used for 

contact cooling or process water, so these flows 

were excluded. For electric generators, the vast 

majority of flow is non-contact cooling, but 

manufacturers are more varied in their water usage. 

60Note that this does not preclude the use of 

other technologies; EPA simply used the available 

performance data in deriving the performance 

requirements and excluded technologies that were 

either inconsistent performers or did not offer 

sufficient data for analysis in a national categorical 

regulation. EPA’s research has shown that other 

technologies may also be capable of meeting the 

proposed requirements, but EPA did not opt to 

identify these technologies as the technology basis 

for today’s proposal. 

61Facilities incurring costs for impingement 

mortality are assumed to meet the requirement for 

entrapment. Because EPA does not know how many 

facilities that already comply with impingement 

mortality requirements would incur additional 

costs to avoid entrapment, EPA conducted a 

sensitivity analysis of the additional costs; see 

Chapter 12 of the TDD. 

62Nuclear Energy Institute (NEI) reported average 

length of outage from 2003 to 2009. 

Difficult level of retrofit costs is more 

representative for purposes of 

estimating national level costs. 

Additionally, EPA’s tool includes 

additional modifications to EPRI’s 

methodology, such as increased 

compliance costs for approximately 25 

percent of facilities to reflect the 

additional expense of noise control or 

plume 58 abatement, and using only the 

cooling water flow rate for non-contact 

cooling water flow 59 for purposes of 

estimating costs for closed-cycle 

cooling. EPA has included the 

spreadsheet tools in the docket for the 

proposed rule to assist both facilities 

and permit authorities in estimating 

compliance costs. (See DCNs 10–6655 

and DCN 10–6930). 

4. Which technologies form the basis for 

compliance cost estimates? 

EPA identified two broad classes of 

control technologies that may be used 

singularly or in combination to comply 

with the proposed rule. These classes of 

control technologies are: (1) 

Technologies that address impingement 

mortality (IM) and (2) technologies that 

address entrainment mortality (EM). See 

Section VI for further details. Under the 

various options considered, a facility 

may be subject to one or both 

requirements, depending on their 

configuration, technologies in use, or 

other site-specific factors. 

For the impingement mortality 

requirements, EPA analyzed data from a 

wide variety of technologies and 

facilities and concluded that modified 

Ristroph (or equivalent) coarse mesh 

traveling screens are the most 

appropriate basis for determining the 

compliance costs.60 As discussed in 

Section VI of the preamble, a facility 

may also comply with impingement 

mortality requirements by meeting a 

maximum intake velocity limit. Based 

on facility-specific data, EPA made a 

preliminary assessment of which model 

facilities would not currently meet 

impingement mortality requirements 

through either approach, and assigned 

technology costs based on the 

installation of modified traveling 

screens with a fish handling and return 

system. This assigned technology is 

assumed to meet the BTA standard (see 

§ 125.94(b)). However, some facilities 

might still incur costs for restructuring 

their intakes to avoid entrapment.61

EPA solicits comment and data on the 

costs of this requirement. 

For facilities subject to entrainment 

mortality requirements, EPA selected 

wet cooling towers as the technology 

basis for determining the compliance 

costs. In some cases, costs reflect 

installation of multiple technologies, as 

impingement mortality and entrainment 

mortality requirements were applied 

separately to each facility. EPA also 

evaluated other technologies for 

reducing entrainment mortality, such as 

seasonal operation of cooling towers, 

partial towers, variable speed pumps, 

and fine mesh screens. The performance 

of these technologies is further 

described in section VI; a detailed 

discussion of how the costs were 

developed may be found in the TDD. 

5. How is facility downtime assessed? 

Downtime is the amount of time that 

a facility may need to shut down due to 

the installation of a compliance 

technology. Downtime estimates 

primarily assume that the facility would 

need to completely shut down 

operations to retrofit an intake, such as 

relocating an intake, connecting wet 

cooling towers into the facility, or 

reinforcing condenser housings. 

Downtime estimates are provided as 

incremental outages, taking into account 

the periodic outages all facilities already 

incur as part of preventative 

maintenance or routinely scheduled 

outages. For example, nuclear facilities 

have refueling outages approximately 

every 18 months lasting approximately 

40 days.62 The entrainment control 

implementation periods, 10 years for 

fossil fuel plants and 15 years for 

nuclear plants, in Options 2 and 3 

would provide facilities with an 

opportunity to schedule the retrofit 

when other major upgrades are being 

done, reducing downtime. 

For most facilities subject to 

impingement mortality, no downtime 

was assigned. Facilities that are 

replacing or rehabilitating existing 

traveling screens typically do so one 

intake bay at a time without affecting 

the overall operations. EPA has also 

found that facilities that need to scrub 

screens do so during other routinely 

scheduled outages. For some 

compliance technologies such as 

relocating an intake, or expanding an 

existing intake to lower the intake 

velocity, several weeks of downtime are 

incurred, as these are more invasive 

tasks. 

For facilities subject to entrainment 

mortality controls, EPA reviewed 

historical retrofit data and site visits 

conducted since 2004, and has largely 

retained its assumptions for downtime 

from the Phase II and Phase III rules. On 

average, EPA assumes the net 

construction downtime for a cooling 

tower retrofit for non-nuclear electric 

generators is 4 weeks. This total 

downtime allows for the tie-in of the 

cooling tower to the existing cooling 

water system. The refueling outage 

downtime, the safety-sensitive nature of 

nuclear facility retrofits, and other data 

in EPA’s record supports 28 weeks as 

the net construction downtime for 

nuclear facilities. Downtime for 

manufacturing facilities that use cooling 

water for power and steam generation 

was converted into the incremental cost 

for purchase of those utilities during the 

outage. For individual process units 

other than power or steam generation 

units at a manufacturing facility (i.e. 

cooling water use for purposes other 

than power production), on average the 

downtime was assumed to be zero. In 

EPA’s extensive experience with 

manufacturers while developing 

effluent guidelines, EPA found 

manufacturers are generally able to shut 

down individual intakes for specific 

process lines, use inventory approaches 

such as temporary increases of 

intermediate products, and develop 

other workarounds without interrupting 

the production of the entire facility. 

EPA requests comment from those 

manufacturing facilities that have made 

modifications to their cooling water 

systems on their experiences with 

facility downtime. See below for further 

discussion of how installation 

downtime in weeks is included in the 

estimated national costs. 

6. How is the energy penalty assessed? 

The term ‘‘energy penalty’’ in relation 

to a conversion to closed-cycle cooling 

has two components: One is the extra 

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63See DCN 10–6650 and DCN 10–6651. 

64This discussion will focus only on new units 

at existing facilities; for a discussion of the Phase 

I rule, see 66 FR 65256. 

power required to operate fans at a 

mechanical draft cooling tower, as well 

as additional pumping requirements 

(often referred to as the parasitic energy 

penalty), and the other is the lost power 

output due to the reduction in steam 

turbine efficiency because of an increase 

in cooling water temperature (often 

referred to as the turbine efficiency 

penalty or turbine backpressure 

penalty). Energy penalty costs only 

apply to facilities retrofitting a cooling 

tower; facilities installing a new 

impingement mortality technology will 

generally see little or no measureable 

change in energy usage. EPA’s national 

level costs include the costs for both 

components. The parasitic energy 

penalty was included as a separate 

component in the O&M costs and was 

assessed for all facilities. The turbine 

efficiency penalty was typically 

expressed as a percentage of power 

output; EPA estimates the turbine 

efficiency energy penalty for nuclear 

and non-nuclear power generation 

would be 2.5% and 1.5%, respectively 

(see the TDD). For most manufacturers, 

the energy penalty for turbine efficiency 

loss for non-nuclear power plants (i.e., 

1.5%) was assumed. This may overstate 

costs where cooling water is used by a 

manufacturing facility for purposes 

other than power production. 

7. How did EPA assess facility-level 

costs for the national economic impacts 

and energy reliability analyses? 

To assess the national economic 

impacts, EPA conducted a modeling 

analysis using IPM (Integrated Planning 

Model). This model is widely used by 

EPA for analysis of rules and policies 

affecting electric generating facilities. 

This analysis is used to assess economic 

impacts, increases in household 

electricity bills, and changes in 

electricity reliability. In contrast to the 

model facility costing approach, the IPM 

model requires a facility-level cost for 

each facility. Model facility costs were 

converted to a per MGD DIF basis, and 

then averaged to derive cost equations 

using DIF as the independent variable. 

This cost equation thus provides 

average costs that can be applied to any 

facility by simply scaling to that 

facility’s DIF. EPA also used a 

conservative compliance scenario in 

order to develop a bounding ‘‘worst 

case’’ impact analysis by assuming all 

facilities would be subject to 

Entrainment Mortality reductions based 

on closed-cycle cooling towers. In the 

worst case scenario EPA conducted the 

IPM analysis using the Difficult level 

cost for all facilities, thereby generating 

an upper bound of total costs and 

conservative predictions of the 

economic impacts. See the EBA for 

more information. In conducting its 

analysis, EPA found the equations used 

to derive the cost module estimates 

produced substantially higher costs per 

MGD rates at lower flow levels. To 

reflect the higher per unit costs of 

retrofits at lower DIF (i.e. smaller) 

facilities, EPA derived separate model 

facility cost equations for facilities with 

DIF <10 MGD and those with DIF ≥ 10 

MGD. (See the TDD). 

8. How did EPA assess costs for new 

units? 

This section describes the data and 

methods used to estimate compliance 

costs for new units at existing electric 

generators and manufacturers. 

Compliance costs for new units at 

existing electric generators are 

calculated using a similar methodology 

to the compliance cost estimates for 

existing facilities. EPA is not able to 

predict which facilities will construct 

new units, however the national 

projections of increased capacity (i.e. 

additional megawatts capacity to be 

constructed each year) can be converted 

to a number of new units of a specified 

size; EPA then applied the cost 

equations to these projected new units. 

Based on site visits, EPA has found that 

industry trends towards water 

conservation and reuse in addition to 

the operational flexibility at existing 

manufacturers would result in no 

additional compliance costs for 

achieving flow commensurate with 

closed-cycle cooling at new units. EPA 

solicits comment on this assumption. 

a. New Units at Existing Electric 

Generators 

Power generation units that meet the 

definition of a ‘‘new unit’’ will be 

required to meet entrainment reduction 

based on closed-cycle cooling or an 

equivalent reduction in entrainment 

mortality for the cooling water 

component of the intake flow based on 

the average intake flow (AIF). Estimates 

for compliance costs for new units are 

based on the net difference in costs 

between what cooling system 

technologies would have been built 

under the current regulatory structure 

and what will be built given the change 

in requirements imposed by the 

proposed regulation. Compliance costs 

are derived using estimates of the new 

generating capacity that will be subject 

to these requirements. 

Generally speaking, EPA has 

identified a number of differences in 

costs between a closed-cycle cooling 

retrofit at an existing facility compared 

to installing closed-cycle cooling at a 

new unit: 

• New units can incorporate closedcycle cooling in a more cost effective 

manner. 

• The duration of new unit 

construction is sufficiently long enough 

that there would be, in nearly all 

circumstances, no net increase in 

‘‘construction downtime.’’ 

• For power generation systems, the 

design of boilers, steam turbines and 

condensers ‘‘from scratch’’ allows for the 

optimization of the system design and 

cooling water flow volume to minimize 

the heat rate penalty. Flow is reduced 

over a comparable once-through cooling 

system, which reduces closed-cycle 

cooling system costs. 

• Because major components of the 

once-through intake and cooling system 

must be constructed from scratch, the 

capital costs of closed-cycle cooling for 

new units are lower than the capital 

costs of once-through cooling.63

• There will be an increase in the 

parasitic energy requirements associated 

with fan operation in the closed-cycle 

cooling towers. 

• While parasitic energy requirements 

for pumping head will increase as well, 

it may be offset, at least in part, by 

reductions in pumping flow associated 

with optimization. Any capacity losses 

due to parasitic energy penalty can be 

accounted for in the new unit design. 

• New construction allows the use of 

an optimized cooling system design that 

can minimize any system efficiency 

losses associated with conversion to 

closed-cycle. 

Estimation of New Capacity Subject to 

the Rule 

New generating units will be 

constructed at either ‘‘greenfield’’ 

facilities subject to the Phase I 

regulation or at existing facilities where 

they may be subject to the new unit 

requirements for entrainment 

reduction.64 New generating capacity at 

existing facilities can occur in three 

ways: (1) From new units added to an 

existing facility; (2) repowering, 

replacement and major upgrades of 

existing units; and (3) minor increases 

in system efficiency and output. 

Repowered, replaced, and upgraded 

units are not considered new units 

under today’s proposed rule and would 

not be subject to requirements for 

entrainment reduction. While a small 

portion of this new capacity may result 

from minor increases in plant efficiency 

and output, this analysis assumes all 

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65Less than half of the current U.S. nuclear plants 

still use once through cooling. 

new capacity will occur be associated 

with new units. 

New power generation capacity 

estimates by fuel/plant type were 

derived from IPM modeling. For the 

new unit costs analysis EPA focused on 

coal and combined cycle, since these 

comprised the majority of increased 

capacity that utilize a steam cycle and 

are most likely to be constructed at 

existing generation facilities. In the 

Phase I rule analysis, EPA determined 

that 76% of new coal and 88% of new 

combined cycle capacity would be 

constructed at new ‘‘greenfield’’ facilities 

and would be subject to Phase I 

requirements while the remainder (24% 

of coal and 12% of combined cycle) 

would occur at existing facilities and be 

subject to existing facility regulations. 

EPA has selected a conservative value of 

30% reflecting both coal and combined 

cycle to serve as an estimate for the 

portion of new capacity that would be 

constructed at existing facilities. 

At existing nuclear facilities, only 

new capacity associated the 

construction of new generating units 

would be subject to the new unit 

requirements. Considering their size and 

heat discharge as well as recent trends 

in industry, it is assumed that any new 

nuclear units will utilize closed-cycle 

cooling 65 and so the capacity for these 

nuclear facilities is not included in the 

costs of requirements for new units. 

Exhibit VII–1 presents a summary of 

new capacity estimates for all fuel types. 

EXHIBIT VII–1—ESTIMATED NEW CAPACITY

Fuel type 

New capacity 

(MW) a

New capacity incurring costs 

under this rule 

Annual 

average 24 Year total Annual average 24 Year total 

Coal .................................................................................................................. 3,573 85,744 1,072 25,723 

Combined Cycle .............................................................................................. 1,491 35,795 447 10,739 

a Includes capacity subject to both Phase I and existing facility requirements. 

Baseline Compliance 

Baseline compliance reflects the 

scenario whereby new units will use 

once-through cooling or closed-cycle 

cooling. About 32% of existing facility 

steam generating capacity already 

employs closed-cycle and another 11% 

employ combination cooling systems. 

EPA assumes that at existing plants 

where closed-cycle cooling is already 

employed for at least part of the 

generating capacity that closed-cycle 

would be used for any new capacity, 

regardless of the requirements of today’s 

proposed rule. Therefore at least 43% of 

new capacity is projected to be 

compliant in the baseline (i.e., they will 

already meet the entrainment mortality 

requirements of the proposed rule for 

new units). For example, a number of 

regulatory authorities have adopted or 

pursued closed-cycle cooling 

requirements for some or all existing 

facilities (e.g., New York, California, 

Delaware). EPA expects this to be 

particularly true where the new unit 

would result in a substantial increase in 

the volume of once-through cooling 

water withdrawn above what is 

currently permitted. Thus, 

approximately 50% of new fossil units 

at existing facilities in the baseline 

scenario would already be compliant 

with the proposed rule. EPA requests 

comment on this assumption. 

Repowering Versus New Units 

The increased capacity at existing 

fossil fuel facilities is divided into two 

types of projects. The first is new unit(s) 

added adjacent to the existing 

generating units which would require a 

new intake or the existing intake to be 

substantially modified in order to 

supply the needed additional volume of 

cooling water. The second is a 

repowered unit which replaces an 

existing generating unit(s) and is 

assumed to be sized such that the 

existing once-through cooling water 

intake volume will provide sufficient 

flow to meet heat discharge 

requirements. Based on 2007 IPM 

projections (since more recent 

projections do not include this 

distinction) approximately 85% of 

projected total new combined cycle 

capacity was estimated to be repowered 

oil and gas units. The estimate for 

repowered coal capacity was very small 

(less than 1%). However, since there are 

significant economic advantages to 

repowering, EPA believes this to be an 

underestimate and selected a more 

conservative value of 10%. Exhibit VII– 

2 presents the capacity values assumed 

to be compliant in the baseline or that 

require costs associated with closedcycle cooling for new added units 

versus repowering. 

EXHIBIT VII–2—NEW CAPACITY SUBJECT TO NEW UNIT REQUIREMENT BY COST CATEGORY

Fuel type 

Capacity subject to new unit compliance 

costs (MW) 

Annual average 24 Year total 

Coal ................................................................... Baseline is Compliant ....................................... 536 12,862 

New Added Unit ............................................... 482 11,575 

Combined Cycle ............................................... Baseline is Compliant ....................................... 224 5,369 

New Added Unit ............................................... 34 805 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22217 

Compliance Cost Estimation 

Compliance costs reflect compliance 

with the proposed requirements for 

closed-cycle for the new unit; these 

costs do not represent costs to retrofit 

the entire facility to closed-cycle. 

Compliance costs for new units are 

derived from EPA’s estimates for 

retrofitting a closed-cycle cooling 

system at existing facilities where the 

costs are expressed on a per MGD basis. 

For new units, the cost equations are 

converted to a cost per MW capacity. 

The cooling water flow estimates are 

based on plant fuel efficiency values of 

42% for coal (the average of values for 

super-critical and ultra-critical steam), 

57% for combined cycle, and 33.5% for 

nuclear. [DCN 10–2827]. Cost 

components were broken out as follows. 

Capital Costs 

EPA has found that for new units, the 

total estimated capital costs for a closedcycle cooling system is slightly less than 

the capital costs of a once-through 

cooling system (when including costs 

for a new intake structure). Therefore, a 

conservative estimate of the incremental 

compliance capital costs are $0 for new 

units. 

O&M Costs 

Fixed and variable O&M costs are 

adjusted by deducting the O&M costs for 

traveling screens assumed in the 

baseline once-through system. Energy 

costs are also adjusted downward to 

account for reduced pumping volume 

passing through the intake structure and 

adjusted up to account for the increase 

in pumping head through the cooling 

tower. 

Downtime 

Each of the new units will involve 

extensive construction activities that 

would result in a prolonged 

construction downtime regardless of the 

cooling system requirements. Thus, no 

downtime costs are assessed for new 

unit compliance. 

Energy Penalty 

The energy penalty consists of 

parasitic load and heat rate penalties. 

Both types of installation—new and 

retrofit—face parasitic load associated 

with fans and pumps, but only retrofits 

would face a heat rate penalty, which is 

the largest portion of a retrofit energy 

penalty. Energy penalty costs associated 

with net changes in parasitic energy 

requirements between once-through and 

closed-cycle cooling are included in the 

O&M cost estimates. 

b. New Units at Existing Manufacturers 

Similar to new units at existing 

electric generators, manufacturing 

‘‘units’’ that meet the definition of a 

‘‘new unit’’ will be required to meet 

entrainment reduction requirements. 

These requirements will require closedcycle cooling or an equivalent reduction 

in entrainment for the cooling water 

component of the intake flow based on 

the average intake flow (AIF). Estimates 

for compliance costs for new units are 

based on the net difference in costs 

between what would have been built 

under the current regulatory structure 

(baseline) and what will be built given 

the change in requirements imposed by 

the proposed regulation. Thus, baseline 

manufacturing unit process design and 

cooling water technology would be 

based on the response to the permitting 

authorities application of existing 

requirements including 316(b), 

applicable industrial water use and 

discharge standards (e.g., categorical 

standards), and BPJ. 

As discussed in section IV of the 

preamble, it has become standard 

practice for industries to adopt water 

use reduction and reuse practices 

wherever practical. A new unit provides 

the opportunity to employ such 

measures to the fullest extent. Thus, the 

baseline cooling AIF for ‘‘new units’’ at 

manufacturers should, in most cases, be 

much smaller than the AIF for a 

comparable existing unit. This is 

especially true for new units that 

perform a similar function or produce a 

similar product to existing units since 

economic factors such as the need to 

increase process efficiencies are often 

driving factors in the decision to 

construct a new unit. EPA recognizes 

that while this appears to be a general 

trend, it may not always be true on a 

site-specific basis. 

For manufacturing process units that 

are newly constructed, many of the 

same cost-related factors listed above for 

power generators apply but additional 

factors may include: 

• A much greater proportion of intake 

flow is used for process water and other 

non-cooling purposes which greatly 

increases the opportunity to design and 

incorporate cooling water reuse 

strategies within the unit. 

• Where the new unit comprises only 

a portion of the plant, cooling water 

reduction may be accomplished through 

reuse elsewhere within the plant. The 

proposed rule provides credit for such 

flow reductions. 

• The modular nature of closed-cycle 

cooling allows for the limited 

application of closed-cycle cooling only 

to the portion of cooling flow necessary 

to meet any additional reductions not 

accounted for by any other reuse or 

reduction strategies employed. 

Additionally, new units can utilize 

cooling system designs specifically 

tailored to process requirements. The 

modular nature of closed-cycle cooling 

and the flexibility inherent in the 

process system allows for more optimal 

placement of cooling tower units, thus 

minimizing piping costs. 

• Flow reductions associated with the 

use of variable speed pumps can result 

in benefits associated with both reduced 

flow and pumping energy costs. 

For power generation facilities and 

generating units that use once-through 

cooling, the majority of the intake flow 

is used for non-contact cooling 

purposes. Process water typically 

constitutes a few percent or less of the 

total. A review of the responses to the 

detailed technical survey showed that 

the median and average values for the 

percent of design intake flow used for 

cooling purposes reported for each 

separate cooling water intake at power 

generation facilities were 100% and 

85% respectively. In contrast, most 

industrial manufacturing operations 

utilize a substantial portion of intake 

water for non-cooling purpose and the 

same median and average values for 

manufacturing facilities were 50% and 

52%, respectively. In addition, this 

cooling flow component data includes 

contact cooling water, as discussed in 

section IV.A (i.e., flow reduction is only 

required for non-contact cooling water 

flows), thus decreasing the proportion. 

Therefore, a ‘‘typical’’ manufacturing 

unit may use less than 50% of AIF for 

cooling purposes of the type that may be 

subject to the ‘‘new unit’’ requirements. 

In many cases, this ‘‘typical’’ facility may 

be able to reuse 100% of the cooling 

water in place of the process 

component. Thus, the ‘‘typical’’ 

manufacturing facility may be capable 

of designing a ‘‘new’’ process that could 

meet the ‘‘new unit’’ requirements 

through water reuse alone. EPA has 

observed significant innovation and 

water reuse during site visits to 

manufacturing facilities, and notes 

extensive industry trends towards 

internal water and energy audits. 

Since this 50% value is the median of 

all reported manufacturing cooling 

water intake systems, at least half of 

manufacturing cooling water systems 

may have the potential to meet the ‘‘new 

unit’’ requirements simply by reusing 

non-contact water as process water. For 

the remainder, modifications to the 

process that reduce cooling water use 

such as use of variable speed pumps 

may provide additional reduction. For 

some, there may be a need to install 

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22218 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

cooling towers for the cooling flow 

component that cannot be reused. EPA 

assumes, however, that this, however, 

will in most instances be a small portion 

of the total intake flow. Also, if the new 

unit comprises only a portion of the 

entire manufacturing facility, there may 

be other process units and plant 

operations nearby that could reuse the 

cooling water (or supply reusable water) 

in order to meet the flow reduction 

requirements. The proposed rule 

encourages facilities to incorporate 

flexible water use arrangements, 

including a provision where cooling 

water that is reused elsewhere in the 

facility is not considered cooling water; 

as a result, facilities will have an 

incentive to reuse water and avoid being 

subject to 316(b) requirements. 

For new units that would require an 

increase in intake flow, EPA has found 

that the capital costs of the new intake 

and screen technology which requires 

deeper pump and intake wells to 

accommodate source water depth 

variations will be comparable to the 

capital costs for closed-cycle 

technology. In these cases, closed-cycle 

may have slightly higher O&M costs for 

pump and fan energy but these costs 

may be offset by other cost savings such 

as reductions in water treatment costs. 

The definition of new manufacturing 

units limits the applicability of closedcycle requirements to new units. As 

such, it is assumed that the construction 

activities would involve substantial 

downtime periods that would be of 

similar or more likely greater duration 

than required for construction and tiein activities associated with the closedcycle cooling technology. EPA 

concludes that only a small portion of 

new units will need to meet new unit 

flow reduction requirements through 

the use of closed-cycle cooling and the 

associated net costs will be minimal. 

EPA requests comment on these costing 

assumptions. 

C. Social Cost of the Regulatory Options 

EPA calculated the social cost of the 

four regulatory options for existing 

Manufacturers and Electric Generators 

using two social discount rate values: 3 

percent and 7 percent. For the analysis 

of social costs, EPA discounted all costs 

to the beginning of 2012, the date at 

which this proposal would become 

effective under the regulation 

development schedule. EPA assumed 

that all facilities subject to the 

regulation would achieve compliance 

between 2013 and 2027, inclusive, 

depending on the compliance schedules 

associated with the four regulatory 

options considered in the proposed rule 

for specific categories of facilities. EPA 

performed the social cost analysis over 

a 50-year period to reflect: The last year 

in which individual facilities are 

expected to achieve compliance (2027) 

under any of the regulatory options 

considered for this analysis, the 

technology life of the longest-lived 

compliance technology installed at any 

facility (30 years), and a period of 5 

years after the last year of compliance 

technology operation during which 

benefits continue to accrue. Under this 

framework, the last year for which costs 

were tallied in the analysis is 2056, with 

benefits continuing on a diminishing 

basis through 2061. Because the analysis 

period extends beyond the useful life of 

compliance equipment assumed to be 

installed at facilities that achieve 

compliance before 2017, the social cost 

analysis accounts for re-installation of 

IM compliance technologies after the 

end of their initial useful life periods; 

however, EPA does not expect in-scope 

facilities to completely re-build cooling 

towers (components such as piping and 

the concrete basin can be reused) and 

EPA expects other technology 

replacement costs (such as pumps and 

fill material) are accounted for as part of 

the ongoing O&M expenses for cooling 

towers. Costs incurred by governments 

for administering the regulation were 

analyzed over the same time frame. This 

analysis accounts for technology costs 

associated with new units starting in the 

first year after promulgation, i.e., 2013 

(for more information on new units see 

Chapter 3: Development of Costs for 

Regulatory Options of the EBA report). 

At a 3 percent discount rate, EPA 

estimates annualized costs of 

compliance of $384 million under 

Option 1, $4,463 million under Option 

2, $4,631 million under Option 3, and 

$327 million under Option 4. At a 7 

percent discount rate, these costs are 

$459 million, $4,699 million, $4,862 

million, and $383 million, respectively. 

The largest component of social cost is 

the pre-tax cost of regulatory 

compliance incurred by complying 

facilities. These costs include one-time 

technology costs of complying with the 

rule, one-time costs of installation 

downtime, annual fixed and variable 

operating and maintenance (O&M) costs, 

the value of electricity requirements for 

operating compliance technology, and 

permitting costs (initial permit costs, 

annual monitoring costs, and permit 

reissuance costs). In addition, all 

Electric Generators are expected to 

become subject to I&E mortality 

requirements at the 125 MGD threshold 

under Option 2. Social cost also 

includes implementation costs incurred 

by Federal and State governments. 

EPA’s social cost estimates exclude the 

cost to facilities estimated to be baseline 

closures. As further described in the 

EBA document, in the case of Electric 

Generators, the baseline closure 

generating units were identified in 

Energy Information Administration 

reports or in the baseline IPM analyses, 

as having closed or projected to close 

independent of the requirements of the 

existing facilities rule. For 

Manufacturers, EPA’s analyses 

indicated that these facilities are in 

sufficiently weak financial condition 

before outlays for this regulation, that 

the facilities are likely to close, again, 

independent of the requirements of the 

existing facilities rule. Because these 

facilities are not expected to comply 

with the existing facilities rule, EPA did 

not include the costs that would 

otherwise be assigned to these facilities 

in the analysis of social cost. Consistent 

with this treatment of costs, EPA also 

did not include benefits from these 

facilities in the tally of benefits to 

society for the analysis of social costs 

and benefits of the existing facilities 

rule. 

Exhibit VII–3 presents the social cost 

of the proposed options, by type of cost, 

using 3 percent and 7 percent discount 

rates. 

EXHIBIT VII–3—ANNUALIZED SOCIAL COST

[In millions, 2009 $] a

Option 1 Option 2 Option 3 Option 4 

3% Discount Rate: 

Direct Compliance Cost: 

Manufacturers ........................................................................... $61.31 $141.69 $172.92 $33.99 

Electric Generators ................................................................... 318.77 4,319.59 4,457.79 289.77 

Total Direct Compliance Cost ................................................... 380.08 4,461.28 4,630.71 323.77 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22219 

66Calculated using the total of 559 in-scope 

Electric Generators based on technical facility 

weights. 

67Calculated using the total of 518 in-scope 

Manufacturers based on technical facility weights. 

EXHIBIT VII–3—ANNUALIZED SOCIAL COST—Continued 

[In millions, 2009 $] a

Option 1 Option 2 Option 3 Option 4 

State and Federal Administrative Cost ............................................ 3.71 1.62 0.92 2.79 

Total Social Cost ...................................................................... 383.80 4,462.90 4,631.62 326.55 

7% Discount Rate: 

Direct Compliance Cost: 

Manufacturers ........................................................................... 68.90 133.60 157.49 39.04 

Electric Generators ................................................................... 385.68 4,564.02 4,703.65 340.80 

Total Direct Compliance Cost ................................................... 454.58 4,697.62 4,861.14 379.84 

State and Federal Administrative Cost ............................................ 4.23 1.72 0.91 3.26 

Total Social Cost ...................................................................... 458.81 4,699.35 4,862.05 383.10 

aThese social cost estimates do not include costs associated with installation of cooling tower technology at new generating units subject to 

today’s rule. They also do not include costs associated with complying with site-specific BTA determinations under Options 1, 2, and 4. Section 

VI.I discusses costs for complying with site-specific BTA determinations. 

As shown in Exhibit VII–3, 

compliance cost in the Electric 

Generators segment accounts for the 

majority of total social cost and direct 

compliance cost under all four options. 

On a per regulated facility basis and at 

a 3 percent discount rate, annualized 

pre-tax costs in the Electric Generators 

segment amount to $0.57 million under 

Option 1, $7.73 million under Option 2, 

$7.97 million under Option 3, and $0.52 

million under Option 4.66 For 

Manufacturers, the average cost per 

regulated facility at a 3 percent discount 

rate is $0.12 million under Option 1, 

$0.27 million under Option 2, $0.33 

million under Option 3, and $0.07 

million under Option 4.67 EPA’s 

analysis found a similar profile of per 

facility costs by industry segment for the 

7 percent discount rate case (see EBA 

Chapter 11 for additional detail). While 

all four options require some form of 

control technology at all facilities with 

design intake flows of two MGD or 

greater, Option 2 and Option 3 require 

more costly technologies, which raises 

the per-facility cost of compliance in 

these options. 

EPA’s estimate of federal and State 

government costs for administering this 

proposal is comparatively minor in 

relation to the estimated direct cost of 

regulatory compliance. EPA estimates 

government annual administrative costs 

under 3 and 7 percent discount rates, 

respectively, of approximately $3.71 

million and $4.23 million (Option 1), 

$1.62 million and $1.72 million (Option 

2), $0.92 million and $0.91 million 

(Option 3), and $2.79 million and $3.26 

million (Option 4). 

EPA also estimated the costs for 

installation of closed cycle cooling 

system technology at New Generating 

Units, as required by today’s rule. These 

costs are based on the estimates of 

occurrence of new unit construction 

that would be subject to the New Units 

requirement, and the incurrence of costs 

as described above in the section titled 

‘‘How Did EPA Assess Costs for New 

Units?’’ 

The social costs of adding closed 

cycle cooling system capability at newly 

constructed units at existing facilities 

are not included in the total social cost 

tallies presented above. EPA did not 

include these costs in the tallies 

presented above because EPA did not 

estimate benefits from installation of 

closed cycle cooling systems at these 

units (their location is unknown). As a 

result, comparisons of social cost, which 

would include these costs, with 

benefits, which would not include the 

I&E mortality reductions from installing 

those closed cycle cooling systems, 

would be inconsistent. The costs for 

adding closed cycle cooling system 

capability at newly constructed units 

are the same across all four of the 

regulatory options presented in today’s 

proposed rule, because the technology 

performance requirements for existing 

units at existing facilities, which vary by 

regulatory option, do not apply to these 

newly constructed generating units. On 

an annualized cost base, these amount 

to $14.7 million at a 3 percent discount 

rate, and $10.9 million at a 7 percent 

discount rate. 

D. Economic Impact 

EPA assessed the economic impact of 

the regulatory options in different ways 

depending on the affected segment, 

Manufacturers or Electric Generators: 

For Manufacturers, EPA assessed the 

impact of compliance costs on business 

viability at the level of the affected 

facility (facility-level analysis), 

including assessment of the potential for 

facility closures and of the potential for 

affected facilities to incur financial 

stress short of closure. For 

manufacturers, EPA also assessed the 

impact of compliance requirements on 

the entities that own in-scope facilities 

(firm-level analysis), based on the level 

of compliance costs incurred by the 

total of in-scope facilities owned by a 

firm in relation to the revenue of the 

firm. 

For Electric Generators, EPA assessed 

economic impact in three ways: (1) An 

assessment of the impact of compliance 

costs on first, complying facilities and 

second, the entities that own those 

facilities, based on comparison of 

compliance costs to facility and firm 

revenue, (2) an assessment of potential 

electricity price effects on residential 

and other electricity consumers, and (3) 

an assessment of the impact of the 

proposed regulatory options within the 

context of the electricity markets in 

which affected facilities operate. 

These analyses are based on the 

facilities included in EPA’s previous 

316(b) surveys of electric generators and 

those manufacturing industries whose 

operations are most reliant on cooling 

water and that are expected to be most 

affected by this proposal. For each 

regulatory option, only those facilities 

that would be subject to national 

standards, based on their DIF, are 

included in the analyses. 

The following sections summarize the 

methods and findings for manufacturers 

and electric power generators for these 

analyses. 

a. Manufacturers 

This section presents EPA’s estimated 

economic impacts on Manufacturers for 

the three regulatory options. The 

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22220 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

68For the analysis of three regulatory options 

presented in this document, neither employment 

loss nor output loss were in fact relevant because 

none of these options resulted in regulatory 

closures. 

69The estimated number of Manufacturers 

facilities considered in the impact analysis (579) 

differs from the number reported in the broader 

analyses (592). EPA determined that the survey 

responses of 14 sample facilities lacked certain 

financial data needed for the facility impact 

analysis while containing sufficient data to support 

estimates of facility counts and compliance costs. 

EPA therefore retained these sample facilities (37 

sample weighted facilities) in the broader analyses 

but excluded them from the impact analysis. When 

these sample facilities were excluded from the 

impact analysis, the sample weights for the 

remaining facilities within the affected sample 

frames were adjusted upwards to account for their 

removal (the revised weights are referred to as the 

economic analysis weights). The difference in the 

reported facility totals in the impact and social cost 

analyses reflects the removal of these 14 facilities 

and the use of adjusted sample weights, which due 

to rounding error results in a difference of 13 

between the facilities in the impact analysis and 

those in the other analyses. 

economic impact analyses for 

Manufacturers assess how facilities, and 

the firms that own them, are expected 

to be affected financially by the 

regulatory options. The facility impact 

analysis starts with compliance cost 

estimates from the EPA engineering 

analysis (see section VII.B) and then 

calculates how these compliance costs 

would affect the financial performance 

and condition of the sample facilities 

and owning firms. 

Measures of economic impact include 

facility closures and associated losses in 

revenue and employment, financial 

stress short of closure (‘‘moderate 

impacts’’), and firm-level impacts.68

In conducting the facility impact 

analysis, EPA first eliminated from the 

analysis those facilities that the Agency 

estimated to be at substantial risk of 

financial failure regardless of any 

additional financial burden that might 

result from the regulatory options under 

consideration (baseline closure 

facilities). Second, for the remaining 

facilities, EPA evaluated how 

compliance costs would likely affect 

facility financial performance and 

condition. EPA identified a facility as a 

regulatory closure if it would have 

operated under baseline conditions but 

would fall below an acceptable financial 

performance level under the new 

regulatory requirements. 

EPA’s analysis of regulatory closures 

is based on the estimated change in 

facility After-Tax Cash Flow (cash flow) 

as a result of the regulation and 

specifically examines whether the 

change in cash flow would be sufficient 

to cause the facility’s going concern 

business value to become negative. EPA 

calculated business value using a 

discounted cash flow framework in 

which cash flow is discounted at an 

estimated cost of capital to calculate the 

going concern value of the facility. The 

specific definition of cash flow used in 

these analyses is after-tax free cash flow 

available to all capital—equity and 

debt—including an allowance for 

ongoing capital expenditures required 

by the business. Correspondingly, the 

cost of capital reflects the combined 

cost, after-tax, of equity and debt 

capital. For its analysis of economic/ 

financial impacts on the Manufacturers 

industry segment, EPA used 7 percent 

as a real, after-tax cost of capital. Use of 

the 7 percent discount rate is consistent 

with guidance from the Office of 

Management and Budget on the 

opportunity cost of capital to society. 

In these analyses, EPA first calculated 

the baseline going concern value of the 

facility using its baseline cash flow— 

i.e., facility cash flow before 

compliance-related outlays—and used 

this value to determine whether a given 

facility is a baseline closure (for details 

see Chapter 4 of the EBA report). If EPA 

found the facility’s estimated going 

concern value to be negative, then the 

facility was judged a baseline closure— 

i.e., likely to fail financially, 

independent of incurrence of 

compliance costs—and removed the 

facility from further consideration in the 

impact and other economic analyses. 

As the second step in the facility 

impact analysis, EPA adjusted the 

baseline cash flow to reflect the 

expected financial effects of compliance 

technology installation and operation. 

Based on an assessment of cost passthrough potential in the affected 

industries (see Chapter 5 and Appendix 

4.A of the EBA), EPA assumed that none 

of the facility’s compliance costs could 

be passed on to its customers as price 

and revenue increases—i.e., all 

compliance costs must be absorbed 

within the facility’s cash flow. EPA then 

recalculated the facility’s business value 

using the adjusted post-compliance cash 

flow. If this analysis found that the 

facility’s business value would become 

negative as a result of meeting 

compliance requirements, then EPA 

judged the facility to be a regulatory 

closure. 

EPA also identified facilities that 

would likely incur moderate financial 

impacts, but that are not expected to 

close, as a result of the rule. EPA 

established thresholds for two measures 

of financial performance and 

condition—interest coverage ratio and 

pre-tax return on assets—and compared 

the facilities’ performance before and 

after compliance under each regulatory 

option with these thresholds. EPA 

attributed incremental moderate 

impacts to the rule if both financial 

ratios exceeded threshold values in the 

baseline (i.e., there were no moderate 

impacts in the baseline), but at least one 

financial ratio fell below the threshold 

value in the post-compliance case. 

i. Baseline Closure Analysis 

Exhibit VII–4 presents projected 

baseline closures for the estimated 

facilities in the Primary Manufacturing 

Industries and additional known 

facilities in Other Industries.69 From the 

analysis as outlined above, EPA 

determined that 73 facilities (or 13 

percent) of the estimated 569 regulated 

facilities in the six Primary 

Manufacturing Industries are baseline 

closures. The highest percentages of 

baseline closures occur in the Steel 

industry sector (32 percent). An 

additional three facilities (or 30 percent) 

of the 10 known facilities in Other 

Industries are projected to be baseline 

closures. These facilities were excluded 

from the post-compliance analysis of 

regulatory impacts, leaving 504 facilities 

for the assessment of compliance 

impacts. 

EXHIBIT VII–4—SUMMARY OF BASELINE CLOSURES FOR MANUFACTURERS

Sector Total number of 

facilities a

Number of 

baseline closures 

Percentage of 

baseline closures 

Operating in 

baseline 

Paper ............................................................................................... 230 32 14 198 

Chemicals ........................................................................................ 171 4 3 167 

Petroleum ......................................................................................... 36 5 15 30 

Steel ................................................................................................. 68 22 32 46 

Aluminum ......................................................................................... 27 3 12 24 

Food and Kindred Products ............................................................. 37 6 17 31 

Total Facilities in Primary Manufacturing Industries ........................ 569 73 13 497 

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EXHIBIT VII–4—SUMMARY OF BASELINE CLOSURES FOR MANUFACTURERS—Continued 

Sector Total number of 

facilities a

Number of 

baseline closures 

Percentage of 

baseline closures 

Operating in 

baseline 

Additional known facilities in Other Industries ................................. 10 3 30 7 

Total Manufacturers Facilities ................................................... 579 76 13 504 

a Economic Analysis Weights were used to determine facility counts. See preceding footnote. 

ii. Number of Facilities Subject to 

National Standards 

EPA estimates that all of these 504 

Manufacturers facilities—497 facilities 

in the Primary Manufacturing Industries 

and 7 facilities in the Other Industries— 

are subject to the requirements under 

the four regulatory options, although the 

technology response anticipated at 

individual facilities differs under each 

option. Under Option 1, all 504 facilities 

passing the baseline closure test would 

be required to meet IM standards and 

EPA estimates that 370 will need to 

install new technology in order to do so. 

Under Option 2, 57 facilities with DIF 

exceeding 125 MGD would be required 

to meet I&E mortality standards, and 

EPA estimates that all of these facilities 

would need to retrofit closed-cycle 

cooling. The remaining 448 facilities 

would be subject only to IM standards, 

and EPA estimates that 366 would need 

to install new technology to meet these 

requirements. Under Option 3, all 504 

facilities would be required to meet I&E 

mortality standards, and in this case 

EPA estimates that 426 facilities would 

need to install a cooling tower to meet 

these requirements. In addition, EPA 

estimates that 181 facilities would need 

to install additional IM technology to 

meet Option 3’s regulatory 

requirements. Under Option 4, 156 

facilities would be required to meet IM 

standards; in this case, EPA estimates 

that 139 facilities would need to install 

new technology to meet this 

requirement. 

iii. Post-Compliance Facility Impact 

Analysis; Summary of Impacts 

Of the 504 Manufacturers facilities 

potentially subject to regulation after 

excluding baseline closures, EPA 

estimated that no facilities would close 

or incur employment losses as a result 

of the Options. EPA also found that no 

facilities would incur moderate impacts 

under Options 1, 2, and 4, but 17 

facilities would incur moderate impacts 

under Option 3. 

Exhibit VII–5 summarizes the 

estimated impacts of the proposed rule 

on Manufacturers by option, including 

facility impacts and total annualized 

compliance costs on an after-tax basis. 

The reported costs exclude compliance 

costs for baseline closures. The total 

annualized, after-tax compliance cost 

reported in Exhibit VII–5 represents the 

cost actually incurred by complying 

firms, taking into account the reductions 

in tax liability resulting from 

compliance outlays and assuming no 

recovery of costs from customers 

through increased prices. The after-tax 

analysis uses a combined federal/State 

tax rate, and accounts for facilities’ 

baseline tax circumstances. Specifically, 

tax offsets to compliance costs are 

limited not to exceed facility-level tax 

payments as reported in facility 

questionnaire responses. The total 

annualized, after-tax compliance cost 

reported here is the sum of annualized, 

after-tax costs by facility at the year of 

compliance, using a 7 percent after-tax 

cost of capital. This cost calculation 

differs from the calculation of 

compliance costs as included in the 

calculation of the total social costs of 

the regulation (see Section VII.C) where 

costs are accounted for on a pre-tax 

basis. 

EXHIBIT VII–5—FACILITY IMPACTS AND COMPLIANCE COSTS FOR MANUFACTURERS

Option 1 Option 2 Option 3 Option 4 

Primary Manufacturing Industries 

Number of Facilities Operating in Baseline ..................................... 497 497 497 497 

Number of Closures (Severe Impacts) ............................................ 0 0 0 0 

Percentage of Facilities Closing ...................................................... 0% 0% 0% 0% 

Number of Facilities with Moderate Impacts ................................... 0 0 17 0 

Percentage of Facilities with Moderate Impacts .............................. 0% 0% 3.40% 0.00% 

Annualized Compliance Costs (after tax, million 2009 $) ............... $40.78 $108.71 $147.87 $23.38 

Additional Known Facilities in Other Industries 

Number of Facilities Operating in Baseline ..................................... 7 7 7 7 

Number of Closures (Severe Impacts) ............................................ 0 0 0 0 

Percentage of Facilities Closing ...................................................... 0% 0% 0% 0% 

Number of Facilities with Moderate Impacts ................................... 0 0 0 0 

Percentage of Facilities with Moderate Impacts .............................. 0% 0% 0% 0% 

Annualized Compliance Costs (after tax, million 2009 $) ............... $1.13 $1.52 $1.99 $0.60 

iv. Firm-Level Impact 

In addition to analyzing the impact of 

the regulation at the facility level, EPA 

also examined the impact of the 

proposed rule on firms that own 

manufacturing facilities with cooling 

water intake structures. A firm that 

owns multiple facilities could be 

adversely affected due to the cumulative 

burden of regulatory requirements over 

these facilities. For the assessment of 

firm-level effects, EPA calculated 

annualized after-tax compliance costs as 

a percentage of firm revenue and reports 

here the estimated number and 

percentage of affected firms incurring 

compliance costs in three cost-torevenue ranges: Less than 1 percent; at 

least 1 percent but less than 3 percent; 

and 3 percent or higher. 

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70The alternative analysis case approaches are 

not applicable to the Other Industries firms and 

facilities, because these facilities do not receive 

sample weights. 

EPA’s sample-based analysis of 

facilities in the Primary Manufacturing 

Industries supports specific estimates of 

the number of facilities expected to be 

affected by the regulation and the total 

compliance costs expected to be 

incurred in these facilities. However, 

the sample-based analysis does not 

support specific estimates of the number 

of firms that own facilities in the 

Primary Manufacturing Industries. In 

addition, and as a corollary, the samplebased analysis does not support specific 

estimates of the number of regulated 

facilities that may be owned by a single 

firm, or of the total of compliance costs 

across regulated facilities that may be 

owned by a single firm. For the firmlevel analysis, EPA therefore considered 

two approximate bounding cases based 

on the sample weights developed from 

the facility survey. These cases provide 

a range of estimates for the number of 

firms incurring compliance costs and 

the costs incurred by any firm owning 

a regulated facility. The cases are as 

follows: 

1. Lower bound estimate of number of 

firms owning facilities that face 

requirements under the regulation; 

upper bound estimate of total 

compliance costs that a firm may incur. 

For this case, EPA assumed that any 

firm owning a regulated sample 

facility(ies), owns the known sample 

facility(ies) and all of the sample 

weights associated with the sample 

facility(ies). This case yields an 

approximate lower bound estimate of 

the count of affected firms, and an 

approximate upper bound estimate of 

the potential cost burden to any single 

firm (see EBA Chapter 4 for information 

on the analysis of firm-level impacts). 

2. Upper bound estimate of number of 

firms owning facilities that face 

requirements under the regulation; 

lower bound estimate of total 

compliance costs that a firm may incur. 

For this case, EPA inverted the prior 

assumption and assumed (1) that a firm 

owns only the regulated sample 

facility(ies) that it is known to own from 

the sample analysis and (2) that this 

pattern of ownership, observed for 

sampled facilities and their owning 

firms, extends over the facility 

population represented by the sample 

facilities. This case minimizes the 

possibility of multi-facility ownership 

by a single firm and thus maximizes the 

count of affected firms, but also 

minimizes the potential cost burden to 

any single firm. 

Exhibit VII–6 summarizes the results 

of the firm-level analysis for these two 

analytic cases. 

EXHIBIT VII–6—FIRM-LEVEL AFTER-TAX ANNUAL COMPLIANCE COSTS AS A PERCENTAGE OF REVENUE

Number of firms in the analysis Pot. reg. 

Not analyzed due to 

lack of revenue 

information b

Number and percentage with after tax annual compliance costs/annual revenue of: 

Number % 

Less than 1% 1–3% At least 3% 

Number % Number % Number % 

Primary Manufacturing Industries 

Case 1: Lower bound estimate of number of firms owning facilities that face requirements under the regulation; upper bound estimate of total 

compliance costs that a firm may incur a

Option 1 ........................................... 117 3 3 113 96 0 0 1 1 

Option 2 ........................................... 117 3 3 113 96 0 0 1 1 

Option 3 ........................................... 117 3 3 113 96 0 0 1 1 

Option 4 ........................................... 117 0 0 117 100 0 0 0 0 

Case 2: Upper bound estimate of number of firms owning facilities that face requirements under the regulation; lower bound estimate of total 

compliance costs that a firm may incur. 

Option 1 ........................................... 359 9 3 349 97 0 0 1 0 

Option 2 ........................................... 359 9 3 349 97 0 0 1 0 

Option 3 ........................................... 359 9 3 349 97 0 0 1 0 

Option 4 ........................................... 359 0 0 359 100 0 0 0 0 

Other Industries 

Option 1 ........................................... 9 0 0 9 100 0 0 0 0 

Option 2 ........................................... 9 0 0 9 100 0 0 0 0 

Option 3 ........................................... 9 0 0 9 100 0 0 0 0 

Option 4 ........................................... 9 0 0 9 100 0 0 0 0 

aThe alternative analysis case concepts are not applicable to the Other Industries firms and facilities, because these facilities do not receive 

sample weights. bFor Options 1, 2, and 3, all facilities and parent firms are assigned costs; however three firms are not analyzed because no revenue data is 

available. In Option 4, these three firms are assigned no costs, and so by definition have cost to revenue ratios less than 1% and are categorized as such. 

As presented in Exhibit VII–6, EPA 

estimated that the number of firms 

owning regulated facilities in the 

Primary Manufacturing Industries range 

from 117 (Case 1 estimate) to 359 (Case 

2 estimate), depending on the assumed 

ownership cases outlined above. An 

additional 9 firms are known to own 

facilities in Other Industries.70

EPA’s analyses indicate that the 

number of firms falling in the reported 

cost-to-revenue impact ranges is the 

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71For private, tax-paying entities, after-tax costs 

are a more relevant measure of potential cost 

burden than pre-tax costs. For non tax-paying 

entities (e.g., State government and municipality 

owners of in-scope facilities), the estimated costs 

used in this calculation include no adjustment for 

taxes. 

72For the facility cost-to-revenue analysis, EPA 

estimated compliance costs for all facilities as of an 

assumed single proxy compliance year, 2015, for 

comparison with 2015 revenues. EPA’s choice of 

the year for which cost and revenue values are used 

in a particular part of the cost analysis was driven 

by the concept of a given analysis (e.g., should cost 

and revenue values be as of the Rule promulgation 

year, as of a facility’s expected compliance year, or 

as of a post-compliance, steady state operations 

year?) and the availability of data for the analysis. 

For more information on the methodology for the 

facility-level cost-to-revenue analysis, see Chapter 5 

of the EBA report. 

73To develop the average of year-by-year revenue 

values over the data years, EPA set aside from the 

averaging calculation, revenue values for years that 

are substantially lower than the otherwise ‘‘steady 

state average’’—e.g., because of a generating unit 

being out of service for an extended period. EPA 

believes the resulting cost-to-revenue comparison 

provides a more realistic assessment of potential 

impact on a ‘‘steady state’’ operations basis. 

74The NERC regions used for summarizing these 

findings are as of 2008. Some NERC regions have 

been re-defined over the past few years. The NERC 

region definitions used in today’s Proposed Existing 

Facilities Regulation analyses vary by analysis 

depending on which region definition aligns better 

with the data elements underlying the analysis. 

same across Options 1, 2, and 3, by 

analysis case. No firms fall in the 

reported impact ranges under Option 4 

for either analysis case. Under Case 1, 

Lower Bound Estimate of Number of 

Firms Owning Facilities/Upper Bound 

Estimate of Costs Incurred by these 

Firms, zero of the estimated 117 firms 

owning Manufacturers facilities incur 

costs between 1 and 3 percent of 

revenue for all Options, and one firm 

incurs costs exceeding 3 percent of 

revenue under Options 1, 2, and 3. No 

firms incur costs exceeding 3 percent of 

revenue under Option 4. The remaining 

113 (Options 1, 2, and 3), and 117 

(Option 4) firms incur costs below 1 

percent of revenue or no costs. 

Under Case 2, Upper Bound Estimate 

of Number of Firms Owning Facilities/ 

Lower Bound Estimate of Costs Incurred 

by these Firms, zero firms in the 

Primary manufacturing industries are 

estimated to incur costs between 1 and 

3 percent of revenue under all Options. 

Like Case 1, one firm incurs costs 

exceeding 3 percent of revenue under 

Options 1, 2, and 3, and no firms incur 

costs exceeding 3 percent of revenue 

under Option 4. The remaining 349, and 

359 firms, respectively, incur costs 

below 1 percent of revenue or no costs. 

For the firms owning Other Industries 

facilities, EPA’s analysis indicates that 

across all Options, no firms incur costs 

exceeding 1 percent of revenue. 

Regardless of the analysis case or 

regulatory option, the number and 

percentage of firms incurring costs 

between one and three percent of 

revenue, or exceeding three percent of 

revenue, are small. 

b. Electric Generators 

For Electric Generators, EPA assessed 

the economic impact of the regulatory 

options in three major ways: (1) Entity 

level impacts (at both the facility and 

parent company levels), (2) potential 

electricity price effects on residential 

and other electricity consumers, and (3) 

broader electricity market impacts 

(taking into account the 

interconnectedness of regional and 

national electricity markets, using five 

metrics, for the full industry, for inscope facilities only, and as the 

distribution of impacts at the facility 

level). 

1. Assessment of the Impact on 

Complying Facilities and Parent Entities 

EPA assessed the cost to complying 

facilities and parent entities based on 

cost-to-revenue analyses. 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. In performing these and other 

impact analyses, EPA developed and 

used sample weights to extrapolate 

impacts assessed initially at the level of 

a sample of facilities to the full 

population of in-scope facilities. 

Specifically, EPA developed and used 

different sets of weights, with each 

weight set being used to derive a 

specific estimate and/or used with a 

different set of sample facilities to 

which the weights were applied to 

derive a given estimate. (See Appendix 

3.A of the EBA report for a discussion 

on weights development and 

application.) 

a. Cost-to-Revenue Analysis for 

Complying Facilities 

To provide insight on the potential 

significance of the compliance costs to 

complying facilities, EPA calculated the 

annualized after-tax compliance costs of 

the regulatory options as a percentage of 

baseline annual revenues, for 559 inscope facilities.71 72 Most of the revenue 

estimates used in this analysis were 

developed using the average of facilityspecific baseline (i.e., pre-promulgation) 

projections from the Integrated Planning 

Model (IPM) for 2015, 2020, 2025, and 

2028.73 In a few instances where IPMbased revenue values were not 

available, EPA used estimates based on 

Energy Information Administration 

(EIA) data. EPA performed this analysis 

for each of the 257 facilities for which 

compliance cost estimates were 

explicitly developed. As stated above, 

EPA used facility sample weights to 

estimate the total numbers of in-scope 

facilities that fall within various cost-torevenue ranges as reported in Exhibit 

VII–7 (see Chapter 5 of the EBA report 

for a discussion of the facility-level costto-revenue analysis). 

Exhibit VII–7, below, summarizes the 

facility-level cost-to-revenue analysis 

results for each option, by North 

American Electricity Reliability 

Corporation (NERC) region.74 EPA 

estimates for Options 1 and 4, that the 

majority of facilities subject to today’s 

proposal will incur annualized costs of 

less than 1 percent of revenue (481 

facilities or 86 percent). Under Options 

2 and 3, the majority of in-scope 

facilities, 333 (or approximately 60 

percent) and 386 (or approximately 69 

percent), respectively, will incur 

annualized costs exceeding 3 percent of 

revenue. 

EXHIBIT VII–7—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS BY REGULATORY OPTION AND NERC REGION A

Number of in-scope facilities a, b No revenue c

Number of facilities with cost-to-revenue 

ratio of Minimum 

ratio 

% 

Maximum 

ratio 

% < 1% 1–3% > 3% 

Option 1: IM Everywhere 

ASCC ............................................................................... 0 0 0 0 0.00 0.00 

ERCOT ............................................................................. 5 28 7 2 0.00 3.28 

FRCC ............................................................................... 0 18 4 4 0.00 3.49 

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EXHIBIT VII–7—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS BY REGULATORY OPTION AND NERC REGION A— 

Continued 

Number of in-scope facilities a, b No revenue c

Number of facilities with cost-to-revenue 

ratio of Minimum 

ratio 

% 

Maximum 

ratio 

% < 1% 1–3% > 3% 

HICC ................................................................................ 0 2 2 0 0.34 1.04 

MRO ................................................................................. 0 43 4 0 0.00 1.80 

NPCC ............................................................................... 0 49 14 0 0.00 2.64 

RFC .................................................................................. 0 148 13 3 0.00 3.58 

SERC ............................................................................... 0 146 6 5 0.00 3.61 

SPP .................................................................................. 0 28 6 0 0.00 2.38 

WECC .............................................................................. 0 19 0 4 0.00 3.38 

Total .......................................................................... 5 481 55 18 0.00 3.61 

Option 2: IM Everywhere and EM for Facilities With DIF > 125 MGD 

ASCC ............................................................................... 0 0 0 0 0.00 0.00 

ERCOT ............................................................................. 5 5 1 31 0.00 43.39 

FRCC ............................................................................... 0 5 4 16 0.00 35.37 

HICC ................................................................................ 0 0 0 3 3.87 8.48 

MRO ................................................................................. 0 20 6 20 0.00 10.96 

NPCC ............................................................................... 0 15 10 38 0.00 37.53 

RFC .................................................................................. 0 47 15 102 0.00 12.50 

SERC ............................................................................... 0 44 14 100 0.00 24.23 

SPP .................................................................................. 0 11 6 17 0.00 49.66 

WECC .............................................................................. 0 19 0 4 0.00 40.10 

Total .......................................................................... 5 166 55 333 0.00 49.66 

Option 3: I&E Mortality Everywhere 

ASCC ............................................................................... 0 0 0 0 0.00 0.00 

ERCOT ............................................................................. 5 5 1 31 0.00 43.39 

FRCC ............................................................................... 0 5 4 16 0.00 35.37 

HICC ................................................................................ 0 0 0 3 3.87 8.48 

MRO ................................................................................. 0 6 7 33 0.00 18.38 

NPCC ............................................................................... 0 0 9 55 1.22 37.53 

RFC .................................................................................. 0 38 8 119 0.00 51.38 

SERC ............................................................................... 0 29 22 106 0.00 28.47 

SPP .................................................................................. 0 11 6 17 0.00 49.66 

WECC .............................................................................. 0 17 0 6 0.00 40.10 

Total .......................................................................... 5 112 57 386 0.00 51.38 

Option 4: IM for Facilities With DIF > 50 MGD 

ASCC ............................................................................... 0 0 0 0 0.00 0.00 

ERCOT ............................................................................. 5 28 7 2 0.00 3.28 

FRCC ............................................................................... 0 18 4 4 0.00 3.49 

HICC ................................................................................ 0 2 2 0 0.34 1.04 

MRO ................................................................................. 0 43 4 0 0.00 1.80 

NPCC ............................................................................... 0 52 11 0 0.00 2.64 

RFC .................................................................................. 0 151 12 2 0.00 3.54 

SERC ............................................................................... 0 148 5 5 0.00 3.61 

SPP .................................................................................. 0 28 6 0 0.00 2.38 

WECC .............................................................................. 0 19 0 4 0.00 3.38 

Total .......................................................................... 5 488 49 17 0.00 3.61 

a No explicitly analyzed facilities are located in the ASCC region. For more information on explicitly and implicitly analyzed in-scope facilities 

see Appendix 3.A of the EBA report. bFacility counts exclude baseline closures. 

c IPM and EIA report no revenue for 2 facilities (5 on the weighted basis); consequently, facility-level cost-to-revenue analysis is performed for 

257 facilities (559 on the weighted basis). 

b. Parent Entity-Level Cost-to-Revenue 

Analysis 

EPA also assessed the economic 

impact of the options considered for 

today’s proposed rule at the parent 

entity-level. The cost-to-revenue 

analysis at the entity level provides 

insight on the impact of compliance 

requirements on those entities that own 

more than one in-scope facility. For this 

analysis, EPA identified the domestic 

parent entity of each in-scope facility 

and obtained the entity’s revenue from 

publicly available data sources. For 5 

identified ultimate parent entities that 

own at least one explicitly analyzed 

Electric Generator (i.e., Detailed 

Questionnaire (DQ) facilities and a 

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75Parent entity weights were not used in this 

calculation because the combination of facility 

weights and entity weights would overstate, 

perhaps substantially, the estimate of in-scope 

facilities and compliance costs assigned to parent 

entities. 

subset of the Short Technical 

Questionnaire (STQ) facilities with recirculating systems in their baseline) 

and that are non-U.S. firms EPA could 

not obtain revenue for a domestic entity 

but did obtain revenue at the level of the 

international parent entity; for these 5 

entities, EPA used this international 

entity revenue in the cost-to-revenue 

analysis. EPA compared the total 

annualized after-tax compliance costs, 

as of 2015 to the identified parent 

entity’s total sales revenue (see Chapter 

5 of the EBA report). 

Because compliance costs for the 

regulatory options were directly 

attributable to only a subset of the inscope facilities (i.e., the explicitly 

analyzed, Detailed Questionnaire (DQ) 

facilities and a subset of the Short 

Technical Questionnaire (STQ) facilities 

with re-circulating systems in their 

baseline) and were therefore able to be 

linked with only a subset of the parent 

entities that own in-scope facilities, EPA 

developed and used entity-level sample 

weights for this analysis, as outlined in 

the Appendix 3.A of the EBA report. 

EPA defined two cases combining 

entity-level sample weights with 

facility-level weights to yield 

approximate estimates of the numbers of 

parent entities incurring costs in 

specific cost-to-revenue ranges. Each 

case addresses a specific element of the 

understanding of entity-level effects (see 

Chapter 5 of the EBA report for a 

discussion of the entity-level cost-torevenue analysis): 

• Estimation of facility costs at the 

level of the parent entity, accounting for 

the potential ownership of implicitly 

analyzed, sample-represented facilities 

by an identified parent entity and 

• Estimation of the number of parent 

entities, accounting for the potential 

presence of parent entities that own 

only (an) implicitly analyzed 

facility(ies) and thus cannot be 

associated with the explicitly analyzed 

facilities. 

The two analysis cases and the 

findings from their analysis are as 

follows: 

• Using facility-level weights: For this 

case, facility-level weights were applied 

to the estimated compliance costs for 

facilities identified as being owned by a 

given parent entity.75 This calculation 

may overstate the number of facilities 

and compliance costs at the level of any 

given parent entity, but also likely 

underestimates the number of parent 

entities. This analysis indicates that 97 

unique parent entities own 559 facilities 

subject to today’s proposal. From this 

analysis, EPA estimates that the 

majority of parent entities will incur 

annualized costs of less than one 

percent of revenues under Option 1 (85 

out of 97 parent entities or 89 percent), 

Option 2 (54 out of 97 parent entities or 

56 percent), and Option 4 (86 out of 97 

parent entities or 91 percent). Under the 

more costly Option 3, a nearly equal 

number of entities are expected to incur 

costs above and below 1 percent of 

revenue, i.e., 46 and 45 out of 91 parent 

entities, respectively, not taking into 

account 6 parent entities with unknown 

revenue (see Exhibit VII–8). 

EXHIBIT VII–8—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS, USING FACILITY-LEVEL WEIGHTS

Parent entity type Total number 

of facilities b

Total number 

of entities 

Number of entities with cost-to-revenue ratio ofa

< 1% 1–3% > 3% Unknown 

Option 1: IM Everywhere 

Cooperative .............................................. 25 11 10 0 1 0 

Federal ..................................................... 16 1 1 0 0 0 

Investor-owned ......................................... 306 38 38 0 0 0 

Municipality .............................................. 25 13 9 4 0 0 

Nonutility .................................................. 170 30 23 0 1 6 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 17 4 4 0 0 0 

Total .................................................. 559 97 85 4 2 6 

Option 2: IM Everywhere and EM for Facilities With DIF > 125 MGD 

Cooperative .............................................. 25 11 7 1 3 0 

Federal ..................................................... 16 1 0 0 1 0 

Investor-owned ......................................... 306 38 20 14 4 0 

Municipality .............................................. 25 13 6 5 2 0 

Nonutility .................................................. 170 30 18 2 4 6 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 17 4 3 0 1 0 

Total .................................................. 559 97 54 22 15 6 

Option 3: I&E Mortality Everywhere 

Cooperative .............................................. 25 11 4 3 4 0 

Federal ..................................................... 16 1 0 0 1 0 

Investor-owned ......................................... 306 38 20 14 4 0 

Municipality .............................................. 25 13 2 5 6 0 

Nonutility .................................................. 170 30 18 2 4 6 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 17 4 2 1 1 0 

Total .................................................. 559 97 46 25 20 6 

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76 In the same way as stated above, facility 

weights were not used in conjunction with entity 

weights because the combination of facility weights 

and entity weights would overstate, perhaps, the 

estimate of in-scope facilities and compliance costs 

assigned to parent entities. 

77The NERC regions used to summarize these 

findings are as of 2004, which is the NERC region 

basis used in the utility-level EIA 2007 database. 

Some NERC regions have been re-defined over the 

past few years. The NERC region definitions used 

in these analyses vary by analysis depending on 

which region definition aligns better with the data 

elements underlying the analysis. 

EXHIBIT VII–8—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS, USING FACILITY-LEVEL WEIGHTS—Continued 

Parent entity type Total number 

of facilities b

Total number 

of entities 

Number of entities with cost-to-revenue ratio ofa

< 1% 1–3% > 3% Unknown 

Option 4: IM for Facilities With DIF > 50 MGD 

Cooperative .............................................. 25 11 10 0 1 0 

Federal ..................................................... 16 1 1 0 0 0 

Investor-owned ......................................... 306 38 38 0 0 0 

Municipality .............................................. 25 13 10 3 0 0 

Nonutility .................................................. 170 30 23 0 1 6 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 17 4 4 0 0 0 

Total .................................................. 559 97 86 3 2 6 

aEPA was unable to determine entity-level revenues for 6 (8 weighted) parent entities; consequently, for the purpose of this analysis, EPA 

used the sum of facility-level revenues for facilities owned by these parent entities. bFacility counts exclude baseline closures. 

• Using entity-level weights: For this 

case, entity-level weights were applied 

to the calculated number of parent 

entities estimated to incur costs in each 

cost-to-revenue range.76 This 

calculation may understate the number 

of facilities and compliance costs at the 

level of any given parent entity, but 

accounts more comprehensively for the 

number of parent entities owning inscope facilities. This analysis found that 

140 unique domestic parent entities 

own 257 facilities subject to today’s 

proposal (see Exhibit VII–9).77 From this 

analysis, EPA estimates that the 

majority of parent entities will incur 

annualized costs of less than one 

percent of revenues regardless of the 

option. 

EXHIBIT VII–9—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS, USING ENTITY-LEVEL WEIGHTS

Parent entity type Total number 

of facilities b

Total number 

of entities c

Number of entities with cost-to-revenue ratio of a

< 1% 1–3% > 3% Unknown 

Option 1: IM Everywhere 

Cooperative .............................................. 13 20 18 2 0 0 

Federal ..................................................... 7 1 1 0 0 0 

Investor-owned ......................................... 138 42 42 0 0 0 

Municipality .............................................. 13 35 35 0 0 0 

Nonutility .................................................. 78 38 29 0 1 8 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 8 4 4 0 0 0 

Total .................................................. 257 140 129 2 1 8 

Option 2: IM Everywhere and EM for Facilities With DIF > 125 MGD 

Cooperative .............................................. 13 20 13 5 2 0 

Federal ..................................................... 7 1 0 0 1 0 

Investor-owned ......................................... 138 42 35 6 1 0 

Municipality .............................................. 13 35 24 8 3 0 

Nonutility .................................................. 78 38 25 4 1 8 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 8 4 3 0 1 0 

Total .................................................. 257 140 101 23 9 8 

Option 3: I&E Mortality Everywhere 

Cooperative .............................................. 13 20 9 9 2 0 

Federal ..................................................... 7 1 0 0 1 0 

Investor-owned ......................................... 138 42 35 6 1 0 

Municipality .............................................. 13 35 13 11 11 0 

Nonutility .................................................. 78 38 25 4 1 8 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 8 4 3 0 1 0 

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78AEO does not provide information for ASCC 

and HICC. 

79The NERC regions used for summarizing these 

findings are as of 2004, which is the NERC region 

basis used in the utility-level EIA 2006 database. 

Some NERC regions have been re-defined over the 

past few years. The NERC region definitions used 

in today’s Proposed Existing Facilities Regulation 

analyses vary by analysis depending on which 

region definition aligns better with the data 

elements underlying the analysis. 

EXHIBIT VII–9—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS, USING ENTITY-LEVEL WEIGHTS—Continued 

Parent entity type Total number 

of facilities b

Total number 

of entities c

Number of entities with cost-to-revenue ratio of a

< 1% 1–3% > 3% Unknown 

Total .................................................. 257 140 86 29 17 8 

Option 4: IM for Facilities With DIF > 50MGD 

Cooperative .............................................. 13 20 18 2 0 0 

Federal ..................................................... 7 1 1 0 0 0 

Investor-owned ......................................... 138 42 42 0 0 0 

Municipality .............................................. 13 35 36 0 0 0 

Nonutility .................................................. 78 38 29 0 1 8 

Other political subdivision ........................ 0 0 0 0 0 0 

State ......................................................... 8 4 4 0 0 0 

Total .................................................. 257 140 130 2 1 8 

aEPA was unable to determine entity-level revenues for 6 (8 weighted) parent entities; consequently, for the purpose of this analysis, EPA 

used the sum of facility-level revenues for facilities owned by these parent entities. bFacility counts exclude baseline closures. 

cThere are a total of 143 parent entities on an unweighted basis, 3 of which are other political subdivision entities. These entities own only implicitly analyzed facilities; consequently, there is no explicitly analyzed other political subdivision parent entity to represent these implicitly analyzed parent entities and total weighted entity counts do not include 3 other political subdivision entities. 

As discussed above, because 

compliance costs for the regulatory 

options were directly attributable to 

only a subset of the in-scope facilities 

and were therefore able to be linked 

with only a subset of the parent entities 

that own in-scope facilities, EPA 

conducted entity cost-to-revenue 

analysis using two weighting 

approaches. Using facility-level weights 

is likely to underestimate the number of 

parent entities and overstate the number 

of facilities and compliance costs at the 

level of any given parent entity. At the 

same time, using entity-level weights is 

likely to account more comprehensively 

for the number of parent entities owning 

in-scope facilities but understate the 

number of facilities and compliance 

costs at the level of any given parent 

entity. 

Under these alternative approaches, at 

the 1–3 percent of revenue impact level, 

EPA estimates that 4 and 2 firms (4.1 

percent and 1.4 percent of firms owning 

in-scope facilities, respectively) would 

fall in this impact range under Option 

1, 22 and 23 firms (22.7 percent and 

16.4 percent, respectively) under Option 

2, and 25 and 29 firms (25.8 percent and 

20.7 percent, respectively) under Option 

3. At the 3 percent of revenue impact 

level, the Agency estimates that 2 and 

1 firms (2.1 percent and 0.7 percent, 

respectively) would fall in this impact 

range under Option 1, 15 and 9 firms 

(15.5 percent and 6.4 percent, 

respectively) under Option 2, and 20 

and 17 firms (20.6 percent and 12.1 

percent, respectively) under Option 3. 

The results for Option 4 are virtually 

identical to those of Option 1, with one 

fewer entity incurring costs between 1 

and 3 percent of revenue. 

2. Assessment of Potential Electricity 

Price Effects 

As an additional measure of economic 

impact, EPA assessed the potential 

electricity price effects from today’s 

Proposed Existing Facilities Regulation 

in two ways: (1) An assessment of the 

potential annual increase in household 

electricity costs and (2) an assessment of 

the potential annual increase in 

electricity costs per MWh of total 

electricity sales. These analyses assume 

that all compliance costs will be passed 

through on a pre-tax basis as increased 

electricity prices as opposed to the 

treatment in the facility- and firm-level 

analyses discussed in Section VII.D.b.1, 

which assume that none of the 

compliance costs will be passed to 

consumers through electricity rate 

increases. For discussion of the 

reasonableness of this assumption see 

EBA Chapter 5. 

a. Cost to Residential Households 

Using the assumptions outlined 

above, EPA estimated the potential 

annual increase in electricity costs per 

household by NERC region. The 

analysis uses the total annualized pretax compliance cost per megawatt hour 

(MWh) for the year 2015, in conjunction 

with the reported total electricity sales 

quantity for each NERC region as 

reported by the EIA for 2007 for all 

NERC regions except ASCC and HICC, 

for which total 2015 electricity sales 

projections came from the Department 

of Energy’s Annual Energy Outlook 2009 

(AEO 2009).78 This analysis also uses 

the quantity of residential electricity 

sales per household as reported by the 

2007 EIA for all NERC regions 2007. 

To calculate the average cost per 

household, by region, EPA divided total 

compliance costs for each NERC region 

by the reported total MWh of sales 

within the region. The potential annual 

cost impact per household was then 

calculated by multiplying the estimated 

average cost per MWh by the average 

MWh per household, by NERC region.79

Exhibit VII–10 below, summarizes the 

annual household impact results for 

each option, by NERC region. These 

results show that for Option 1, the 

average annual cost per residential 

household is expected to range from 

$0.05 in WECC to $3.93 in SPP, for 

Option 2 from $0.09 in WECC to $27.11 

in SERC, and for Option 3 from $0.11 

in WECC to $27.88 in SERC. Overall, for 

a typical U.S. household, Option 4 is 

expected to result in the lowest annual 

cost of $1.37 per household, while 

Option 3 is expected to result in the 

highest annual cost of $17.60 per 

household. Option 1 and Option 2 are 

estimated to result in annual costs of 

$1.41 per household and $17.09 per 

household, respectively. 

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22228 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

EXHIBIT VII–10—AVERAGE ANNUAL COST PER RESIDENTIAL HOUSEHOLD IN 2015 BY REGULATORY OPTION AND NERC 

REGION A B

NERC Region c Option 1 Option 2 Option 3 Option 4 

ASCC ............................................................................................... $0.00 $0.00 $0.00 $0.00 

ECAR ............................................................................................... 1.23 20.00 20.47 1.22 

ERCOT ............................................................................................ 1.76 26.52 26.52 1.74 

FRCC ............................................................................................... 2.37 17.89 18.21 2.37 

HICC ................................................................................................ 3.16 23.82 23.82 3.16 

MAAC ............................................................................................... 2.11 18.97 19.31 1.95 

MAIN ................................................................................................ 1.46 19.18 20.18 1.41 

MAPP ............................................................................................... 1.79 16.00 17.04 1.74 

NPCC ............................................................................................... 1.38 19.89 21.13 1.37 

SERC ............................................................................................... 1.64 27.11 27.88 1.61 

SPP .................................................................................................. 3.93 21.56 21.56 3.86 

WECC .............................................................................................. 0.05 0.09 0.11 0.01 

U.S. .................................................................................................. 1.41 17.09 17.60 1.37 

aThe rate impact analysis assumes full pass-through of all compliance costs to electricity consumers. 

b Cost estimates exclude baseline closures. 

c No explicitly analyzed facilities are located in the ASCC region. For more information on explicitly and implicitly analyzed in-scope facilities 

see Appendix 3.A of the EBA report. 

As stated above, this analysis assumes 

that all of the compliance costs will be 

passed onto consumers through 

increased electricity rates. However, 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. At the 

same time, EPA recognizes that Electric 

Generators that operate as regulated 

public utilities are generally permitted 

to pass on environmental compliance 

costs as rate increases to consumers. 

b. Compliance Cost per Unit of 

Electricity Sales 

EPA also calculated the per unit of 

electricity sales cost of the regulatory 

options. EPA used two data inputs in 

this analysis (1) total pre-tax compliance 

cost by NERC region, and (2) estimated 

total electricity sales, from the AEO 

2009 for 2015, by NERC region, for all 

NERC regions except ASCC and HICC; 

for ASCC and HICC EPA used 2007 EIA. 

The Agency summed sample-weighted 

pre-tax annualized compliance costs as 

of 2015 over complying facilities by 

NERC region to calculate an 

approximate total estimated annual cost 

in each region. EPA then calculated the 

approximate average price impact per 

unit of electricity consumption by 

dividing total compliance costs by the 

reported total MWh of sales in each 

NERC region. 

As reported in Exhibit VII–11, 

annualized compliance costs (in dollars 

per KWh sales) range from 0.001¢ in the 

WECC region to 0.040¢ in the HICC 

region for Option 1, from 0.001¢ in the 

WECC region to 0.303¢ in the HICC 

region for Options 2 and 3, and from 

less than 0.001¢ in the WECC region to 

0.040¢ in the HICC region for Option 4. 

On average, across the United States, 

Option 4 results in the lowest cost of 

0.012¢ per KWh, while Option 3 results 

in the highest cost of 0.157¢ per KWh. 

Option 1 and Option 2 result in national 

costs of 0.013¢ per KWh and 0.153¢ per 

KWh, respectively. 

EXHIBIT VII–11—COMPLIANCE COST PER UNIT OF ELECTRICITY SALES IN 2015 BY REGULATORY OPTION AND NERC 

REGION (2009 ¢/KWH SALES) A B

NERC Region c

Annualized pre-tax 

compliance costs 

(2009 $) 

Total electricity sales 

(KWh) 

Compliance cost per 

unit of electricity sales 

(2009 ¢/KWh sales) 

Option 1: IM Everywhere 

ASCC ....................................................................................................... $0 6,326,610,000 0.000 

ECAR ....................................................................................................... 62,390,503 569,849,487,305 0.011 

ERCOT .................................................................................................... 40,029,111 313,395,965,576 0.013 

FRCC ....................................................................................................... 41,259,203 242,320,907,593 0.017 

HICC ........................................................................................................ 4,259,468 10,585,038,000 0.040 

MAAC ....................................................................................................... 61,468,467 294,365,234,375 0.021 

MAIN ........................................................................................................ 41,292,594 275,415,008,545 0.015 

MAPP ....................................................................................................... 27,565,966 165,189,056,396 0.017 

NPCC ....................................................................................................... 51,647,619 284,990,412,176 0.018 

SERC ....................................................................................................... 99,360,633 887,073,303,223 0.011 

SPP .......................................................................................................... 63,811,175 204,172,271,729 0.031 

WECC ...................................................................................................... 4,015,273 701,826,043,025 0.001 

U.S. .......................................................................................................... 497,100,012 3,960,424,804,688 0.013 

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD 

ASCC ....................................................................................................... 0 6,326,610,000 0.000 

ECAR ....................................................................................................... 1,010,953,670 569,849,487,305 0.177 

ERCOT .................................................................................................... 602,721,709 313,395,965,576 0.192 

FRCC ....................................................................................................... 311,699,736 242,320,907,593 0.129 

HICC ........................................................................................................ 32,074,166 10,585,038,000 0.303 

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EXHIBIT VII–11—COMPLIANCE COST PER UNIT OF ELECTRICITY SALES IN 2015 BY REGULATORY OPTION AND NERC 

REGION (2009 ¢/KWH SALES) A B—Continued 

NERC Region c

Annualized pre-tax 

compliance costs 

(2009 $) 

Total electricity sales 

(KWh) 

Compliance cost per 

unit of electricity sales 

(2009 ¢/KWh sales) 

MAAC ....................................................................................................... 551,710,436 294,365,234,375 0.187 

MAIN ........................................................................................................ 542,786,160 275,415,008,545 0.197 

MAPP ....................................................................................................... 246,541,770 165,189,056,396 0.149 

NPCC ....................................................................................................... 744,738,535 284,990,412,176 0.261 

SERC ....................................................................................................... 1,643,059,866 887,073,303,223 0.185 

SPP .......................................................................................................... 350,239,021 204,172,271,729 0.172 

WECC ...................................................................................................... 6,930,361 701,826,043,025 0.001 

U.S. .......................................................................................................... 6,043,455,430 3,960,424,804,688 0.153 

Option 3: I&E Mortality Everywhere 

ASCC ....................................................................................................... 0 6,326,610,000 0.000 

ECAR ....................................................................................................... 1,035,075,751 569,849,487,305 0.182 

ERCOT .................................................................................................... 602,721,709 313,395,965,576 0.192 

FRCC ....................................................................................................... 317,419,881 242,320,907,593 0.131 

HICC ........................................................................................................ 32,074,166 10,585,038,000 0.303 

MAAC ....................................................................................................... 561,627,430 294,365,234,375 0.191 

MAIN ........................................................................................................ 571,233,958 275,415,008,545 0.207 

MAPP ....................................................................................................... 262,582,596 165,189,056,396 0.159 

NPCC ....................................................................................................... 791,203,354 284,990,412,176 0.278 

SERC ....................................................................................................... 1,689,520,164 887,073,303,223 0.190 

SPP .......................................................................................................... 350,239,021 204,172,271,729 0.172 

WECC ...................................................................................................... 8,641,891 701,826,043,025 0.001 

U.S. .......................................................................................................... 6,222,339,919 3,960,424,804,688 0.157 

Option 4: IM for Facilities with DIF > 50MGD 

ASCC ....................................................................................................... 0 6,326,610,000 0.000 

ECAR ....................................................................................................... 61,651,375 569,849,487,305 0.011 

ERCOT .................................................................................................... 39,560,948 313,395,965,576 0.013 

FRCC ....................................................................................................... 41,259,203 242,320,907,593 0.017 

HICC ........................................................................................................ 4,259,468 10,585,038,000 0.040 

MAAC ....................................................................................................... 56,749,132 294,365,234,375 0.019 

MAIN ........................................................................................................ 40,018,375 275,415,008,545 0.015 

MAPP ....................................................................................................... 26,744,938 165,189,056,396 0.016 

NPCC ....................................................................................................... 51,290,663 284,990,412,176 0.018 

SERC ....................................................................................................... 97,785,654 887,073,303,223 0.011 

SPP .......................................................................................................... 62,721,433 204,172,271,729 0.031 

WECC ...................................................................................................... 913,556 701,826,043,025 0.000 

U.S. .......................................................................................................... 482,954,744 3,960,424,804,688 0.012 

aThis analysis assumes full pass-through of all compliance costs to electricity consumers. 

b Cost values exclude baseline closures. 

cThere are no explicitly analyzed facilities located in the ASCC region. For more information on explicitly and implicitly analyzed in-scope facilities see Appendix 3.A of the EBA report. 

3. Assessment of the Impacts in the 

Context of Electricity Markets 

In the analyses for the previous 316(b) 

regulations, EPA used the Integrated 

Planning Model (IPM), a comprehensive 

electricity market optimization model, 

to assess the economic impact of 

regulatory options within the context of 

regional and national electricity 

markets. For its economic impact 

assessment of today’s proposed 

regulatory options, EPA used an 

updated version of this same analytic 

system, Integrated Planning Model 

Version 3.02 EISA (IPM V3.02), to assess 

facility and market-level effects of the 

options. 

Use of a comprehensive, market 

analysis system is important in 

assessing the potential impact of the 

options because of the interdependence 

of electricity generating units in 

supplying power to the electric 

transmission grid. Increases in 

electricity production costs and 

potential reductions in electricity 

output at directly affected facilities— 

whether due to the temporary shutdown 

of electric generating units during 

technology installation and/or the 

energy production penalties that can 

result from compliance system 

operation—can have a range of broader 

market impacts that extend beyond the 

effect on complying facilities and their 

direct customers. In addition, the 

impact of compliance requirements on 

directly affected facilities may be seen 

differently when the analysis considers 

the impact on those facilities in the 

context of the broader electricity market 

instead of looking at the impact on a 

standalone, single-facility basis. 

IPM V3.02 provides outputs for the 

North American Electric Reliability 

Corporation (NERC) regions that lie 

within the continental United States. 

IPM V3.02 does not analyze electric 

power operations in Alaska and Hawaii 

because these states’ electric power 

operations are not connected to the 

continental U.S. power grid. 

IPM V3.02 is based on an inventory of 

U.S. utility- and non-utility-owned 

boilers and generators that provide 

power to the integrated electric 

transmission grid, as recorded in the 

Department of Energy’s Energy 

Information Administration databases as 

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80 In some instances, facility information has been 

updated to reflect known material changes in a 

plant’s generating capacity since 2005. 

81The exclusions of facilities from the IPM 

analysis include 4 facilities that are located in 

Alaska or Hawaii (and thus not included in IPM), 

4 ‘‘lower-48’’ facilities that are not connected to the 

integrated electric transmission grid, 7 facilities 

excluded from the IPM baseline as the result of 

custom adjustments made by ICF, and 11 facilities 

that are not explicitly present in the 316(b) facility 

dataset for this analysis. See Chapter 6 of the EBA 

report for more details. 

82 Include agreements between EPA and Southern 

Indiana Gas and Electric Company (Vectren), Public 

Service Enterprise Group, Tampa Electric Company, 

We Energies (WEPCO), Virginia Electric & Power 

Company (Dominion), Santee Cooper, Minnkota 

Power Coop, American Electric Power (AEP), East 

Kentucky Power Cooperative (EKPC), Nevada 

Power Company, Illinois Power, Mirant, Ohio 

Edison, and Kentucky. 

83 Include current and future state programs in 

Connecticut, Delaware, Georgia, Illinois, Maine, 

Maryland, Massachusetts, Minnesota, Missouri, 

New Hampshire, North Carolina, New Jersey, New 

York, Oregon, Texas, and Wisconsin. 

84For a detailed description of IPM Version 3.02, 

see Chapter 6 of the EBA report. 

85At the time that EPA began analyzing the 

Proposed Existing Facilities Rule options, the 

Agency was still developing the regulatory 

standards to replace CAIR requirements. The 

Transport Rule, which replaces CAIR, was proposed 

on July 6, 2010, i.e., after EPA began to develop the 

baseline for the current 316(b) existing facilities 

rule analyses. Consequently, the IPM baseline used 

for the analysis of the Proposed existing facilities 

rule options does not reflect requirements under the 

newly proposed Transport Rule. However, because 

EPA used IPM v3.02 EISA, i.e., the same IPM 

version used for the market model analysis of 

316(b) regulatory options, to assess the impact of 

the proposed Transport Rule on the U.S. electric 

power sector, the 316(b) baseline includes other 

important existing regulations currently affecting 

this industry sector. Consequently, on balance, EPA 

judges that the performance of the market model 

analyses against the v3.02 EISA constitutes a 

reasonable cost and economic impact analysis for 

the Proposed Existing Facilities Rule—in particular, 

given the uncertainties regarding the final standards 

promulgated, and the specific requirements that 

States will adopt in implementing the Transport 

Rule. 

86The costs as analyzed in IPM differ slightly 

from those used in the non-IPM analyses. For more 

details on these differences see Chapter 6 of the 

EBA report. 

87For the IPM-based analyses of IM-only 

installations, the specified compliance window is 

from 2013 to 2017, for cooling tower installations 

by fossil fuel electric power generating facilities 

from 2018 to 2022, and for cooling tower 

installations by nuclear electric power generating 

facilities from 2023 to 2027. 

88The first year of full compliance is 2028 for 

Options 2 and 3, and 2018 for Option 1. To 

facilitate comparison of market-level impacts across 

options, this presentation focuses on 2028 as the 

steady state comparison year. 

of 2005.80 The IPM baseline universe of 

facilities includes 533, or nearly all, of 

the 559 electric generating facilities that 

EPA estimates will be within the scope 

of today’s proposed rule.81 IPM Version 

3.02 embeds a baseline energy demand 

forecast that is derived from the 

Department of Energy’s Annual Energy 

Outlook 2008 (AEO2008). IPM V3.02 

incorporates in its analytic baseline the 

expected compliance response for the 

following air regulations affecting the 

power sector: Title IV of the Clean Air 

Act (the Acid Raid Program); the NOX

SIP Call; various New Source Review 

(NSR) settlements; 82 and several state 

rules 83 affecting emissions of SO2 and 

NOX that were finalized through 

February 3, 2009. IPM also includes 

state rules that have been finalized and/ 

or approved by a state’s legislature or 

environmental agency, and in certain 

instances, facility-level compliance 

technology installations that have 

already been undertaken because of 

CAIR requirements.84 85

EPA recognizes that due to downtime 

or connection outages estimated to 

occur in conjunction with installation of 

several of the technologies, and the 

number of facilities that will need to 

come into compliance over the years 

after today’s rule is promulgated, shortterm electric reliability issues could 

occur unless care is taken within each 

region to coordinate outages with NERC 

and, where possible, with normal 

scheduled maintenance operations. 

Based on this concern, EPA’s options 

were developed with flexibility 

provided to the permit authority to 

tailor compliance timelines. EPA 

anticipates in those instances where 

local electric reliability could be 

affected, facilities would notify the 

Director via provisions in the permit 

application. Once approved, facilities 

would receive workable construction 

schedules from permit writers to 

schedule installation down times 

without negatively impacting electric 

supply reliability. 

In performing analyses based on IPM 

V3.02, EPA first developed a baseline— 

i.e., without regulation—projection of 

electricity markets and facility 

operations over the period from the 

expected promulgation date, 2012, 

through 2028 (pre-regulation baseline 

case). EPA then overlaid this analysis 

with the estimated compliance costs 

and other operating effects—downtime 

for installation of compliance 

technology and energy penalty—for inscope facilities under selected 

regulatory options (post-compliance 

cases). 

For the IPM analysis, EPA analyzed 

three options that closely correspond to 

those discussed elsewhere in this 

document: (1) Non-Cooling TowerBased Impingement and Entrainment 

requirements at all in-scope facilities 

(Option 1: IM Everywhere), (2) 

Impingement Mortality Controls at all 

in-scope facilities, and Cooling Towers 

at all in-scope facilities with DIF 

exceeding 125 MGD (Option 2: IM 

Everywhere and EM for Facilities with 

DIF>125MGD), and (3) Cooling Towers 

at all in-scope facilities (Option 3: I&E 

Mortality Everywhere).86 The fourth 

option discussed elsewhere in this 

document—Option 4: Non-Cooling 

Tower-Based Impingement and 

Entrainment requirements at all inscope facilities with DIF of 50 MGD or 

more—was not analyzed in IPM due to 

time constraints. Since this option 

mimics the requirements of Option 1, 

but only applies them to a subset of inscope facilities, the findings for this 

option in the IPM analysis would be 

lower than those estimated for Option 1. 

The IPM V3.02 runs provide analysis 

results for selected run-years. EPA 

specified these analysis years taking 

into account the expected promulgation 

date for today’s Proposed Existing 

Facilities Regulation (2012), the years in 

which facilities would be expected to 

install compliance technology and 

achieve compliance (2013–2027),87 and 

the years in which all complying 

facilities would be expected to achieve 

compliance (2028 and subsequent 

years). In the following sections, EPA 

reports results for the analysis year 

2028, which is the first year after 

promulgation in which all in-scope 

facilities would be expected to have 

achieved compliance and thus 

represents a steady state of postcompliance operations, i.e., the steadystate year.88 In addition, EPA also 

analyzed potential electricity marketlevel effects for years during which 

facilities would be expected to shut 

down operations temporarily to 

complete technology installation. For 

the IPM-based analyses of IM-only 

installations, the specified compliance 

window is from 2013 to 2017, for 

cooling tower installations by fossil fuel 

electric power generating facilities from 

2018 to 2022, and for cooling tower 

installations by nuclear electric power 

generating facilities from 2023 to 2027. 

Consequently, the analysis of 

compliance technology installation 

downtime used output from model runyears 2015 for IM technology 

installations and 2020 and 2025 for CT 

installations by fossil fuel and nuclear 

electric power generating facilities, 

respectively. The impacts of the analysis 

options are measured as the difference 

between key economic and operational 

impact metrics between the preregulation baseline case and the postcompliance case. 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22231 

a. Analysis Results for the Year 2028— 

To Reflect Steady State, PostCompliance Operations 

For the steady-state analysis (year 

2028), EPA considered impact metrics 

of interest at three levels of aggregation: 

(1) Impact on national and regional 

electricity markets, (2) impact on the 

group of in-scope power generating 

facilities (i.e., facilities that are expected 

to be within the scope of today’s 

proposed regulation but do not 

necessarily incur technology cost), and 

(3) impact on individual in-scope 

facilities. 

(1) Impact on National and Regional 

Electricity Markets 

For the assessment of market level 

impacts, EPA considered five output 

metrics from IPM V3.02: (1) Incremental 

capacity closures, calculated as the 

difference between capacity under the 

regulatory options and capacity under 

the base case, which includes both full 

facility closures and partial facility 

closures (i.e., unit closures) in aggregate 

capacity terms; (2) incremental capacity 

closures as a percentage of baseline 

capacity; (3) post-compliance changes in 

variable production costs per MWh, 

calculated as the sum of total fuel and 

variable O&M costs divided by net 

generation; (4) post-compliance changes 

in energy price, where energy prices are 

defined as the wholesale prices received 

by facilities for the sale of electric 

generation; and (5) post-compliance 

changes in pre-tax income, where pretax income is defined as total revenue 

minus the sum of fixed and variable 

O&M costs, fuel costs, and annualized 

capital costs. 

Exhibit VII–12 reports results for the 

three market model analysis Options for 

each of the five metrics above, with 

national totals and detail at level of 

regional electricity markets defined on 

the basis of the current NERC regions. 

These market model analysis options 

correspond to regulatory Options 1, 2, 

and 3 (EPA did not run Option 4 

separately because EPA assumes 

baseline MW capacity basis Options 1 

and 4 are similar, and Option 4 is less 

stringent than Option 1. Results for 

Option 1 can be viewed as an upper 

bound estimate of the market impacts of 

Option 4 in Exhibits VII–12, VII–13, 

VII–14, and VII–15). The NERC regions 

are as follows: ERCOT (Electric 

Reliability Council of Texas), FRCC 

(Florida Reliability Coordinating 

Council), MRO (Midwest Reliability 

Organization), NPCC (Northeast Power 

Coordination Council), RFC 

(ReliabilityFirst Corporation), SERC 

(Southeastern Electricity Reliability 

Council), SPP (Southwest Power Pool), 

and WECC (Western Electricity 

Coordinating Council). 

Additional results are presented in 

Chapter 6 of the EBA report. Chapter 6 

also presents a more detailed 

interpretation of the results of the 

market-level analysis. 

EXHIBIT VII–12—IMPACT OF MARKET MODEL ANALYSIS OPTIONS ON NATIONAL AND REGIONAL MARKETS AT THE YEAR

2028 

NERC region Baseline capacity 

(MW) 

Incremental closures Change in variable production 

cost per MWh 

(%) 

Change in energy price per 

MWh 

(%) 

Change in pretax income 

(2009 $) 

(%) Capacity (MW) Percent of baseline capacity 

Option 1: IM Everywhere 

ERCOT ............................. 98,757 151 0.2 ¥0.1 0.0 ¥0.4 

FRCC ............................... 79,298 75 0.1 0.3 0.0 ¥0.4 

MRO ................................. 71,200 29 0.0 ¥0.4 0.0 ¥1.0 

NPCC ............................... 79,688 682 0.9 ¥0.4 0.1 0.3 

RFC .................................. 244,700 ¥279 ¥0.1 0.2 0.1 ¥0.1 

SERC ............................... 286,461 ¥79 0.0 ¥0.1 0.0 ¥0.4 

SPP .................................. 67,703 13 0.0 0.0 0.0 ¥0.5 

WECC .............................. 219,764 9 0.0 0.0 0.0 ¥0.1 

Total .......................... 1,147,571 601 0.1 0.0 NA ¥0.3 

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD 

ERCOT ............................. 98,757 4,462 4.5 ¥1.1 0.2 ¥9.5 

FRCC ............................... 79,298 36 0.0 1.2 0.1 ¥4.7 

MRO ................................. 71,200 806 1.1 1.5 0.1 ¥8.4 

NPCC ............................... 79,688 3,862 4.8 ¥2.6 ¥1.6 ¥10.4 

RFC .................................. 244,700 3,197 1.3 2.7 0.3 ¥10.3 

SERC ............................... 286,461 903 0.3 2.0 ¥0.1 ¥8.9 

SPP .................................. 67,703 969 1.4 0.9 ¥0.1 ¥8.6 

WECC .............................. 219,764 184 0.1 0.1 ¥0.3 ¥0.8 

Total .......................... 1,147,571 14,418 1.3 1.0 NA ¥7.6 

Option 3—I&E Mortality Everywhere 

ERCOT ............................. 98,757 4,498 4.6 ¥1.2 0.2 ¥9.5 

FRCC ............................... 79,298 36 0.0 1.3 0.1 ¥4.8 

MRO ................................. 71,200 801 1.1 1.5 0.1 ¥9.1 

NPCC ............................... 79,688 3,861 4.8 ¥2.7 ¥1.7 ¥11.0 

RFC .................................. 244,700 3,195 1.3 2.7 0.5 ¥10.2 

SERC ............................... 286,461 997 0.3 2.0 0.0 ¥8.9 

SPP .................................. 67,703 1,004 1.5 0.9 0.0 ¥8.7 

WECC .............................. 219,764 183 0.1 0.1 ¥0.3 ¥0.9 

Total .......................... 1,147,571 14,576 1.3 1.0 NA ¥7.7 

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22232 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

89 IPM does not model traditional utility rate 

regulation but attempts to capture price effects as 

though they occur in competitive, deregulated 

markets. As a result, the price effects estimated in 

IPM may be less than those that would actually 

occur, given that most States continue to operate 

under traditional utility regulation. Likewise, the 

proposed rule’s impact on electric generators’ net 

income may be overstated. In contrast, the 

electricity rate impact analyses presented earlier in 

this section (Section VII. 2), assume full passthrough of compliance costs as increased electricity 

prices, which may more closely approximate the 

price effect in regulated markets, but could 

overstate the price effect in deregulated markets. 

As reported in Exhibit VII–12, the 

market model analysis indicates that 

Option 1 would have very small effects 

on overall electricity markets, on both a 

national and regional sub-market basis, 

in the year 2028, the first analysis year 

of full compliance with the regulation. 

At the national level, the analysis 

indicates a total reduction in capacity 

from closures of 601 MW, or less than 

0.1 percent of the total capacity baseline 

in 2028. At the regional level, the 

greatest capacity reduction, 682 MW, 

occurs in the NPCC region; this 

reduction would be approximately 0.9 

percent of baseline capacity. Two NERC 

regions—RFC and SERC—are estimated 

to experience avoided capacity 

closures—i.e., one or more generating 

units that are otherwise projected to 

cease operations in the baseline become 

more economically attractive sources of 

electricity in the post-compliance case, 

because of relative changes in the 

economics of electricity production 

across the full market, and thus avoid 

closure. This counterintuitive result is 

due to the integrated nature of 

electricity markets. 

At the national level, the variable 

production cost of electricity stays 

essentially the same, but with small 

variations by region. The greatest 

increase occurs in FRCC (0.3 percent) 

and the largest decline occurring in 

MRO and NPCC (0.4 percent). Energy 

prices also change little across NERC 

regions, with NPCC and RFC recording 

small increases of 0.1 percent—these 

very small estimated changes in energy 

prices are essentially within the analytic 

‘‘noise’’ of the market model analysis 

system. Given the additional costs from 

compliance with almost no change in 

electricity prices, national sector-level 

pre-tax income is projected to decline 

slightly, by 0.3 percent. All regions 

except NPCC experience a decrease in 

pre-tax income; the greatest decrease, 

approximately 1.0 percent, occurs in 

MRO.89

Option 2 requires that facilities with 

cooling water design intake of 125 MGD 

or less meet non-cooling tower-based 

impingement mortality requirements 

and site-specific entrainment mortality 

BTA (i.e., Option 1 specifications), 

while facilities with cooling water 

design intake exceeding 125 MGD 

install cooling towers. As expected, the 

market model analysis projects that the 

more expensive Option 2 with some 

facilities installing cooling towers 

would have a greater impact than 

Option 1 on national and regional 

electricity markets. Under Option 2, 

capacity closures total 14,418 MW, or 

1.3 percent of the baseline capacity 

value, with all regions projected to incur 

closures. The largest percentage impact 

occurs in NPCC, with a loss of 

approximately 4.8 percent of the 

baseline capacity value. Similarly, 

variable production costs for electricity 

generation increase nationally by 

approximately 1.0 percent, with the 

largest increase occurring in RFC, at 2.7 

percent; only two of the 8 NERC 

regions—ERCOT and NPCC— 

experience a decline of 1.1 percent and 

2.6 percent, respectively. The effect on 

energy prices varies across regions, with 

RFC recording the largest increase, at 

0.3 percent, and NPCC recording the 

largest decline, 1.6 percent. Finally, as 

would be expected with the higher 

compliance outlays, longer installation 

downtimes, and energy penalties with 

some facilities installing cooling towers 

under Option 2, total sector pre-tax 

income is more materially affected 

compared to Option 1: At the national 

level, pre-tax income declines by 7.6 

percent. All regions experience a loss in 

pre-tax income, with the largest loss 

occurring in NPCC, at 10.4 percent. 

The market model analysis projects 

that the most expensive option, Option 

3 (I&E Mortality Everywhere), would 

have a slightly greater impact on 

national and regional electricity markets 

than Option 2, as more in-scope 

facilities are required to install cooling 

towers (nearly all) to meet compliance 

requirements. Under Option 3, capacity 

loss is nearly the same as under Option 

2—14,576 MW or 1.3 percent of the 

baseline capacity value—with all 

regions projected to incur closures. As 

under Option 2, the largest percentage 

impact under Option 3 occurs in NPCC, 

with a loss of approximately 4.8 percent 

of the baseline capacity value. Similarly, 

the impact on variable production costs 

for electricity generation under Option 3 

is approximately the same as under 

Option 2 at the national and regional 

level. At the national level, variable 

production costs increase by 1.0 

percent, with the largest increase also 

occurring in RFC, at 2.7 percent; again, 

only two of the 8 NERC regions— 

ERCOT and NPCC—record a decline of 

1.2 percent and 2.7 percent, 

respectively. The effect on energy prices 

also varies across regions, with RFC 

recording the largest increase of 0.5 

percent and NPCC recording the largest 

decline of 1.7 percent. The impact on 

total sector pre-tax income under 

Option 3 is also similar to the impact 

under Option 2; at the national level, 

pre-tax income declines by 7.7 percent 

with all regions experiencing a loss in 

pre-tax income. 

(2) Impact on In-Scope Facilities 

EPA used IPM V3.02 results for 2028 

to assess the potential impact of the 

regulatory Options on the subset of 

electric generating facilities that are 

estimated to be within the scope of 

today’s proposed regulation compliance 

requirements. Only results for in-scope 

facilities are reported in this analysis. 

Exhibit VII–13 reports results for the 

first three of the regulatory Options for 

in-scope facilities, as a group. Chapter 6 

of the EBA presents a more detailed 

interpretation of the results of the 

analysis of today’s Proposed Existing 

Facilities Regulation. 

EXHIBIT VII–13—IMPACT OF MARKET MODEL ANALYSIS OPTIONS ON IN-SCOPE FACILITIES, AT THE YEAR 2028 

NERC region Baseline capacity 

(MW) 

Incremental closures Change in 

variable 

production cost 

per MWh 

(percent) 

Capacity 

(MW) 

Percent of 

baseline 

capacity 

Option 1—IM Everywhere 

ERCOT ............................................................................................ 35,985 ¥99 ¥0.3 ¥0.2 

FRCC ............................................................................................... 27,210 ¥11 0.0 0.0 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22233 

EXHIBIT VII–13—IMPACT OF MARKET MODEL ANALYSIS OPTIONS ON IN-SCOPE FACILITIES, AT THE YEAR 2028— 

Continued 

NERC region Baseline capacity 

(MW) 

Incremental closures Change in 

variable 

production cost 

per MWh 

(percent) 

Capacity 

(MW) 

Percent of 

baseline 

capacity 

MRO ................................................................................................. 29,131 298 1.0 ¥0.3 

NPCC ............................................................................................... 33,618 859 2.6 ¥1.2 

RFC .................................................................................................. 138,519 ¥95 ¥0.1 0.1 

SERC ............................................................................................... 151,806 198 0.1 0.0 

SPP .................................................................................................. 23,879 ¥102 ¥0.4 ¥0.2 

WECC .............................................................................................. 38,906 9 0.0 ¥0.1 

Total .......................................................................................... 479,054 1,056 0.2 ¥0.1 

Option 2—IM Everywhere and EM for Facilities With DIF 125 MGD 

ERCOT ............................................................................................ 35,985 5,486 15.2 ¥4.3 

FRCC ............................................................................................... 27,210 ¥336 ¥1.2 0.1 

MRO ................................................................................................. 29,131 969 3.3 2.6 

NPCC ............................................................................................... 33,618 4,415 13.1 ¥8.8 

RFC .................................................................................................. 138,519 3,329 2.4 1.9 

SERC ............................................................................................... 151,806 433 0.3 2.1 

SPP .................................................................................................. 23,879 2,285 9.6 ¥1.2 

WECC .............................................................................................. 38,906 234 0.6 0.7 

Total .......................................................................................... 479,054 16,815 3.5 0.5 

Option 3—I&E Mortality Everywhere 

ERCOT ............................................................................................ 35,985 5,528 15.4 ¥4.9 

FRCC ............................................................................................... 27,210 ¥336 ¥1.2 0.0 

MRO ................................................................................................. 29,131 1,016 3.5 2.7 

NPCC ............................................................................................... 33,618 4,415 13.1 ¥9.0 

RFC .................................................................................................. 138,519 3,329 2.4 2.0 

SERC ............................................................................................... 151,806 699 0.5 2.1 

SPP .................................................................................................. 23,879 2,259 9.5 ¥2.3 

WECC .............................................................................................. 38,906 234 0.6 0.8 

Total .......................................................................................... 479,054 17,144 3.6 0.4 

The market model analysis results for 

in-scope facilities show a greater degree 

of adverse impact than that observed 

over all generating units. These more 

substantial adverse impacts among the 

directly affected in-scope units are offset 

by generally positive changes in 

capacity and energy production at the 

facilities that are not directly by the 

proposed rule’s requirements, and 

which are not included in this section’s 

analysis. 

Under Option 1, today’s preferred 

option, looking over all in-scope 

facilities, the total capacity loss from 

early retirements is 1,056 MW at the 

national level, or 0.2 percent of baseline 

capacity in the in-scope units. The 

impact on capacity retirements varies 

across NERC regions with 4 out of 8 

regions recording capacity closures and 

the remaining 4 experiencing avoided 

capacity closures. Some closures (or 

avoided closures) are full facility 

closures (i.e., all generating units at the 

facility close or avoid closure), while 

others are partial closures (i.e., at least 

one generating unit at the facility is 

assessed as closing, or avoiding closure, 

in the post-compliance case). Overall, 

39 generating units close (approximately 

9,874 MW) and 30 generating units 

avoid closure (approximately 8,819 

MW) in the post-compliance case, 

resulting in net closure of 9 generating 

units (approximately 1,055 MW). The 39 

generating unit closures reflect full 

closure of 20 units in 13 facilities (5,647 

MW) and partial closure of 19 units in 

16 facilities (4,227 MW). The largest 

capacity loss occurs in NPCC (859 MW 

or 2.6 percent of baseline capacity). 

As described in the preceding section, 

these net losses of capacity due to early 

retirements among in-scope facilities are 

offset at the total market level by 

capacity increases among other 

facilities. These capacity increases 

typically occur through ‘‘earlier’’ 

construction of new generating units or 

repowering of existing units. These new 

units also typically operate with higher 

energy efficiency and lower electricity 

production cost. As a result, the early 

retirements among in-scope facilities 

under the proposed regulatory option 

have little impact at the level of national 

and regional electricity markets. 

Finally, at the national level, variable 

production costs decline by 

approximately 0.1 percent as older, lessefficient plants close and are replaced 

by newer plants in the IPM model. 

These effects vary by region, with some 

regions experiencing slight increases, 

while other regions experience slight 

decreases. These findings of very small 

national and regional effects in these 

impact metrics confirm EPA’s 

assessment, stated in the preceding 

paragraph, that the assessed capacity 

closures among in-scope facilities are of 

little economic consequence in national 

and regional electricity markets. 

Again, the findings for the more 

expensive Option 2 (IM Everywhere and 

EM for Facilities with DIF > 125MGD) 

are of greater consequence, as some 

facilities would be required to incur the 

cost of cooling tower installation. The 

total loss in capacity in 2028 is assessed 

at 16,815 MW, with the largest capacity 

loss of 15.2 percent occurring in NPCC. 

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22234 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

In the same way as reported for 

Option 1, the capacity loss of 16,815 

MW under Option 2 also reflects a 

combination of early retirements and 

avoided retirements of generating units. 

Under Option 2, 149 generating units 

close (36,163 MW) and 86 generating 

units avoid closure (19,186 MW), 

leading to an estimated net closure of 63 

generating units (16,977 MW). Out of 

the 149 closed units, 72 units (22,976 

MW) are in 35 fully closed facilities and 

77 units (13,186 MW) are in 46 partially 

closed facilities. 

Under Option 2, the findings for the 

change in variable production cost are 

also considerably larger compared to 

Option 1. At the national level, Option 

2 results in a 0.5 percent increase in 

variable production cost. This effect 

varies considerably by region, with 

NPCC recording the largest decrease in 

variable production costs (8.8 percent) 

and MRO incurring the largest increase 

(2.6 percent). 

The analysis results for Option 3 are 

similar to those for Option 2, and again 

show a greater degree of impact on 

capacity and electricity generation 

among in-scope facilities compared to 

the degree of impact observed at the 

market level. At the national level, 

Option 3 results in 17,144 MW of retired 

capacity (compared to 16,815 MW 

under Option 2), which is 

approximately 3.6 percent of total 

baseline in-scope capacity (compared to 

3.5 percent under Option 2). As is the 

case for Options 1 and 2, the net 

capacity reduction of 17,144 MW 

reported for Option 3 includes early 

retirement and avoided retirement of 

generating units. Under Option 2, 162 

generating units close (37,255 MW) and 

88 generating units avoid closure 

(20,258 MW), leading to an estimated 

net closure of 74 generating units 

(16,997 MW). Out of the 162 closed 

units, 79 units (23,262 MW) are in 39 

fully closed facilities and 83 units 

(13,992 MW) are in 50 partially closed 

facilities. 

The impact on variable production 

costs observed for Option 3 is similar in 

magnitude to that observed for Option 2. 

At the national level, variable 

production costs decline by 

approximately 0.4 percent. Under 

Option 3, this effect also varies 

considerably by region, with NPCC, 

again, recording the largest decrease in 

variable production costs (9.0 percent) 

and MRO incurring the largest increase 

(2.7 percent). 

(3) Impact on Individual In-Scope 

Facilities 

Results for the group of in-scope 

facilities as a whole may mask shifts in 

economic performance among 

individual facilities subject to today’s 

proposed rule. To assess potential 

facility-level effects, EPA analyzed 

facility-specific changes between the 

base case and the post-compliance cases 

for the following metrics: (1) Capacity 

utilization (defined as annual generation 

(MWh) divided by [capacity (MW) times 

8,760 hours]), (2) electricity generation, 

(3) revenue, (4) variable production 

costs per MWh, defined as variable 

O&M cost plus fuel cost divided by net 

generation, and (5) pre-tax income, 

defined as total revenues minus the sum 

of fixed and variable O&M costs, fuel 

costs, and capital costs. 

Exhibit VII–14 presents the estimated 

number of in-scope facilities with 

specific degrees of change in operations 

and financial performance as a result of 

today’s regulatory options. This exhibit 

excludes in-scope facilities with 

estimated significant status changes in 

2028 that render these metrics of change 

not meaningful—i.e., under the 

analyzed Option, a facility that is 

assessed as either a full or partial 

closure between the base case and the 

post-compliance case. This is done 

because the measures presented in 

Exhibit VII–11 such as change in 

revenue would not be meaningful for 

these facilities. For example, for a 

facility that is projected to close in the 

post-compliance case, the reduction in 

revenue would be 100 percent. On this 

basis, 118 facilities are excluded from 

assessment under Option 1, 159 

facilities under Option 2, and 165 

facilities under Option 3. 

In addition, the change in variable 

production cost per MWh of generation 

could not be developed for facilities that 

have zero generation in either the 

baseline or post-compliance cases. For 

these facilities—28, 21, and 18 facilities 

under Options 1, 2, or 3, respectively— 

variable production cost per MWh 

cannot be calculated for one or other of 

the two cases (because the divisor, 

MWh, is zero), and therefore the change 

in variable production cost per MWh 

cannot be meaningfully determined. 

Facilities excluded from this assessment 

are recorded in the ‘‘N/A’’ column. 

EXHIBIT VII–14—IMPACT OF MARKET MODEL ANALYSIS OPTIONS ON INDIVIDUAL IN-SCOPE FACILITIES AT THE YEAR

2028—NUMBER OF FACILITIES BY IMPACT MAGNITUDE

Economic measures 

Reduction No 

change 

Increase 

N/Ab

> 3% 1–3% < 1% < 1% 1–3% > 3% 

Option 1—IM Everywhere 

Change in Capacity Utilization a ...................... 0 1 23 398 41 5 3 118 

Change in Generation ...................................... 6 7 39 391 26 0 2 118 

Change in Revenue ......................................... 5 3 164 4 282 13 0 118 

Change in Variable Production Costs/MWh .... 0 2 91 22 319 6 3 146 

Change in Pre-Tax Income .............................. 40 126 243 0 55 4 3 118 

Option 2—IM Everywhere and EM for Facilities With DIF > 125 MGD 

Change in Capacity Utilization a ...................... 13 18 102 147 104 24 22 159 

Change in Generation ...................................... 154 89 6 146 8 12 15 159 

Change in Revenue ......................................... 139 103 51 0 73 54 10 159 

Change in Variable Production Costs/MWh .... 3 5 24 14 107 55 201 180 

Change in Pre-Tax Income .............................. 267 33 55 0 28 23 24 159 

Option 3—I&E Mortality Everywhere 

Change in Capacity Utilization a ...................... 10 16 132 96 118 25 27 165 

Change in Generation ...................................... 184 110 6 95 9 10 10 165 

Change in Revenue ......................................... 158 127 44 0 49 38 8 165 

Change in Variable Production Costs/MWh .... 4 8 15 9 74 63 233 183 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22235 

EXHIBIT VII–14—IMPACT OF MARKET MODEL ANALYSIS OPTIONS ON INDIVIDUAL IN-SCOPE FACILITIES AT THE YEAR

2028—NUMBER OF FACILITIES BY IMPACT MAGNITUDE—Continued 

Economic measures 

Reduction No 

change 

Increase 

N/Ab

> 3% 1–3% < 1% < 1% 1–3% > 3% 

Change in Pre-Tax Income .............................. 315 12 41 0 24 11 21 165 

aThe change in capacity utilization is the difference between the capacity utilization percentages in the base case and post-compliance cases. 

For all other measures, the change is expressed as the percentage change between the base case and post-compliance values. bFacilities with status changes in either base case or post-compliance scenario have been excluded from these calculations. In addition, the 

change in variable production cost per MWh could not be developed for 28, 21, and 18 facilities with zero generation in either base case or Options 1, 2, or 3 post-compliance scenarios, respectively. 

For Option 1, which corresponds to 

EPA’s proposed option, the analysis of 

changes in individual facilities indicates 

that most facilities experience very 

slight effects—no change, or less than a 

1 percent reduction or 1 percent 

increase—in all of the impact metrics 

except Change in Pre-Tax Income. Only 

1 facility is estimated to incur a 

reduction in capacity utilization 

exceeding 1 percent; 13 facilities incur 

a reduction in generation exceeding 1 

percent; and 8 facilities incur a 

reduction in revenue exceeding 1 

percent. Only 9 facilities incur an 

increase in variable production costs 

exceeding one percent. The estimated 

change in pre-tax income is more 

consequential as 126 facilities are 

projected to incur reductions in pre-tax 

income of 1–3 percent and 40 facilities 

are projected to incur reductions in pretax income exceeding 3 percent of the 

baseline value. 

The findings for Option 2 are 

substantially more consequential 

compared to those estimated for Option 

1. For 243 facilities, the reduction in 

generation is estimated to exceed 1 

percent; for 242 facilities, the reduction 

in revenue is estimated to exceed 1 

percent; for 256 facilities, the increase 

in variable production costs is estimated 

to exceed 1 percent. Again, the change 

in pre-tax income is more substantial, 

with 33 facilities expected to incur 

reductions in pre-tax income of 1–3 

percent and 267 facilities, greater than 

3 percent. 

As in the preceding discussions, the 

findings for Option 3 are slightly more 

consequential than those estimated for 

Option 2. For 294 facilities, the 

reduction in generation is estimated to 

exceed 1 percent; for 285 facilities, the 

reduction in revenue is estimated to 

exceed 1 percent; for 296 facilities, the 

increase in variable production costs is 

estimated to exceed 1 percent. The 

change in pre-tax income is more 

substantial, with 12 facilities expected 

to incur reductions in pre-tax income of 

1–3 percent and 315 facilities, greater 

than 3 percent. 

b. Analysis Results for the Years 2015, 

2020, and 2025—To Capture the Effect 

of Installation Downtime 

This section presents market-level 

results for today’s proposed rule options 

for model run years 2015, 2020, and 

2025. As discussed above, run year 2015 

captures the period when in-scope 

facilities install IM technologies, while 

run years 2020 and 2025 capture the 

period when fossil fuel and nuclear 

facilities install cooling towers, 

respectively, and may incur installation 

downtime. Of particular importance as 

a potential impact, the additional unit 

downtime from installation of 

compliance technology would manifest 

as increased electricity production costs 

resulting from the dispatch of higher 

production cost generating units during 

the periods when units are taken offline 

to install compliance technologies. 

Because these effects are of most 

concern in terms of potential impact on 

national and regional electricity 

markets, this section presents results 

only for the total set of facilities 

analyzed in IPM (Exhibit VII–15) and 

does not present results for the subset of 

only in-scope facilities. 

For the assessment of compliance 

technology installation downtime 

impacts at the national level, EPA 

considered five output metrics from IPM 

V3.02: (1) Changes in electricity 

generation, (2) changes in revenue, (3) 

cost changes, including changes in fuel 

costs, variable O&M costs, fixed O&M 

costs, and capital costs, (4) changes in 

pre-tax income, and (5) changes in 

variable production costs per MWh. For 

each measure of concern, Exhibit VII–15 

presents the results for the base case and 

the existing facilities rule options for 

each downtime year, i.e., 2015, 2020, 

and 2025 and the percentage difference 

between the two. This section of the 

preamble discusses downtime impact at 

the national level only; for regionallevel results see Appendix 6.A of EBA 

report. 

EXHIBIT VII–15—IMPACT OF MARKET MODEL ANALYSIS OPTIONS DURING THE PERIOD OF INSTALLATION DOWNTIME

Economic measures 

(all dollar values in $2009) 

Baseline 

value 

Option 1 Option 2 Option 3 

Value % 

Change Value % Change Value % Change 

2015 (2013–2017) 

Generation (TWh) ................................................................ 4,320 4,320 0.0 4,320 0.0 4,320 0.0 

Revenue ($Millions) ............................................................. $212,857 $212,883 0.0 $214,124 0.6 $214,201 0.6

Costs ($Millions) .................................................................. $144,212 $144,764 0.4 $144,251 0.0 $144,244 0.0 

Fuel Cost ...................................................................... $81,076 $81,080 0.0 $80,896 ¥0.2 $80,895 ¥0.2 

Variable O&M ............................................................... $12,034 $12,080 0.4 $12,056 0.2 $12,054 0.2 

Fixed O&M .................................................................... $43,697 $44,140 1.0 $43,683 0.0 $43,680 0.0 

Capital Cost .................................................................. $7,405 $7,463 0.8 $7,616 2.8 $7,614 2.8 

Pre-Tax Income ($Millions) .................................................. $68,646 $68,119 ¥0.8 $69,873 1.8 $69,957 1.9 

Variable Production Cost ($/MWh) ...................................... $21.55 $21.57 0.1 $21.52 ¥0.2 $21.52 ¥0.2 

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22236 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

EXHIBIT VII–15—IMPACT OF MARKET MODEL ANALYSIS OPTIONS DURING THE PERIOD OF INSTALLATION DOWNTIME— 

Continued 

Economic measures 

(all dollar values in $2009) 

Baseline 

value 

Option 1 Option 2 Option 3 

Value % 

Change Value % Change Value % Change 

2020 (2018–2022) 

Generation (TWh) ................................................................ 4,530 ................ ................ 4,530 0.0 4,530 0.0 

Revenue ($Millions) ............................................................. $261,531 ................ ................ $270,507 3.4 $270,709 3.5 

Costs ($Millions) .................................................................. $160,340 ................ ................ $167,450 4.4 $167,719 4.6 

Fuel Cost ...................................................................... $83,418 ................ ................ $82,295 ¥1.3 $82,295 ¥1.3 

Variable O&M ............................................................... $13,349 ................ ................ $13,661 2.3 $13,673 2.4 

Fixed O&M .................................................................... $46,160 ................ ................ $50,888 10.2 $51,016 10.5 

Capital Cost .................................................................. $17,413 ................ ................ $20,605 18.3 $20,736 19.1 

Pre-Tax Income ($Millions) .................................................. $101,191 ................ ................ $103,057 1.8 $102,990 1.8 

Variable Production Cost ($/MWh) ...................................... $21.36 ................ ................ $21.18 ¥0.8 $21.18 ¥0.8 

2025 (2023–2027) 

Generation (TWh) ................................................................ 4,746 ................ ................ 4,746 0.0 4,746 0.0 

Revenue ($Millions) ............................................................. $280,613 ................ ................ $282,363 0.6 $282,381 0.6 

Costs ($Millions) .................................................................. $174,856 ................ ................ $184,900 5.7 $185,148 5.9 

Fuel Cost ...................................................................... $86,633 ................ ................ $86,812 0.2 $86,834 0.2 

Variable O&M ............................................................... $13,907 ................ ................ $14,295 2.8 $14,299 2.8 

Fixed O&M .................................................................... $47,561 ................ ................ $53,500 12.5 $53,625 12.7 

Capital Cost .................................................................. $26,755 ................ ................ $30,294 13.2 $30,390 13.6 

Pre-Tax Income ($Millions) .................................................. $105,757 ................ ................ $97,463 ¥7.8 $97,233 ¥8.1 

Variable Production Cost ($/MWh) ...................................... $21.18 ................ ................ $21.30 0.6 $21.31 0.6 

Because in-scope facilities would be 

required to meet compliance 

requirements not later than 5 years 

following rule promulgation, Option 1 

has downtime effects during only the 

five-year period of 2013–2017. Results 

for the year 2015 are indicative of 

annual effects during each of these 

years. With few facilities having an 

increase in net downtime under Option 

1, the estimated effects of downtime are 

relatively minor. Variable production 

costs increase by less than 0.1 percent. 

Another potential market level impact 

due to the incurrence of downtime is 

the possible increase in electricity 

prices and, consequently, revenue. At 

the market level, the change in total 

revenue is nearly zero, indicating very 

small overall effects on consumer 

prices. While these effects vary at the 

regional level, these effects are overall 

very small (see Appendix 6.A of the 

EBA). 

Unlike Option 1, Option 2 would be 

expected to have downtime effects 

during each of the three five-year 

periods, as IM-only facilities comply 

during the first five years (2012–2017) 

following rule promulgation, fossil fuel 

facilities installing cooling tower 

technology comply during the second 

five years (2018–2022), and nuclear 

facilities installing cooling tower 

technology comply during the third five 

years (2023–2027). 

During the first five-year period 

(2012–2017), downtime effects under 

Option 2, although larger than those 

under Option 1, remain small. Variable 

production costs decline by a very 

minor amount, 0.2 percent, as the 

market begins to adjust overall in 

anticipation of the larger effects on 

capacity availability as the result of 

cooling tower installation in later years. 

Total market-level revenue increases by 

$1.2 billion, or 0.6 percent, indicating 

small effects on consumer prices. 

During the second five-year period 

(2018–2022), downtime effects are more 

pronounced under Option 2. At the 

market level, variable production costs 

decline again, by 0.8 percent, but 

revenue increases by nearly $9.0 billion, 

or 3.4 percent. Thus, the impact on 

consumer prices is greater during this 

period than during the preceding five 

years. Again, the reduction in variable 

production costs and revenue reflect 

replacement of generation from older, 

less efficient and higher fuel cost 

capacity, with generation from more 

energy efficient, lower production cost 

capacity. 

The greatest impact on variable 

production cost under Option 2 occurs 

during the third five-year period (2023– 

2027), when nuclear facilities incur 

downtime during technology 

installation. Net downtime for cooling 

tower installation at nuclear facilities is 

estimated at 24 weeks compared to 0.3– 

4 weeks for installations at fossil fuel 

facilities. During this period, variable 

production costs increase by $0.12 per 

MWh or approximately 0.6 percent. 

Although variable production cost 

increases during this period (while 

declining during the preceding two fiveyear periods), annual revenue increases 

by a smaller amount, $1.8 billion, or a 

0.6 percent increase above baseline. The 

smaller increase in revenue, and by 

inference in consumer prices, results 

from the ongoing market adjustment 

with replacement of less efficient, 

higher fuel cost generation with more 

efficient, lower fuel cost capacity. The 

effects at the national level vary at the 

regional level (see Appendix 6.A of the 

EBA). 

Like Option 2, Option 3 would be 

expected to have downtime effects 

during each of the three five-year 

periods. During the first five-year period 

(2012–2017), impacts are nearly 

identical to those of Option 2 at the 

national and regional level. At the 

national level, variable production costs 

decline by 0.2 percent, and total 

revenue increases by $1.2 billion, or 0.6 

percent, indicating small effects on 

consumer prices. While under Option 2, 

revenue declines by 0.2 percent, under 

Option 3 it increases by 0.5 percent. 

Further, under Option 3, the decline in 

variable production costs as well as the 

drop in electricity prices are slightly 

more significant. 

During the second five-year period 

(2018–2022), downtime effects of 

Option 3 are again similar to, but 

slightly higher than, those of Option 2. 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22237 

90See discussion in Section III on entrainment 

mortality data and assumptions. 

At the national level, variable 

production costs decline by 0.8 percent, 

while revenue increases by $9.2 billion, 

or 3.4 percent. Again, the impact on 

consumer prices under Option 3 is 

greater during this period than during 

the preceding five years. 

As with Option 2, under Option 3 the 

greatest impact on variable production 

cost occurs during the third five-year 

period (2023–2027). During this period, 

market-level variable production costs 

increase by $0.13 per MWh or 

approximately 0.6 percent. Although 

variable production cost increases 

during this period (while declining 

during the preceding two five-year 

periods), annual revenue increases by a 

smaller amount, $1.8 billion, or a 0.6 

percent increase above baseline. 

At the regional level, as is the case for 

Option 2, under Option 3, these effects 

vary across regions. For all three 

analyzed five-year periods, the direction 

of the change in variable production 

costs, revenue, and electricity prices 

under Option 3 is the same as that 

under Option 2 for all NERC regions; the 

difference in the magnitude of change is 

not very pronounced either (see 

Appendix 6.A of the EBA). 

5. Summary of Economic Impacts 

EPA performed cost and economic 

impact assessment in two parts. The 

first set of cost and economic impact 

analyses—entity level impacts (at both 

the facility and parent company levels), 

an assessment of the potential electricity 

rate impact of compliance costs to the 

residential sector, and across sectors— 

reflects baseline operating 

characteristics of in-scope facilities and 

assumes no changes in those baseline 

operating characteristics—e.g., level of 

electricity generation and revenue—as a 

result of the requirements of the 

proposed regulatory options. The 

second set of analyses look at broader 

electricity market impacts—taking into 

account the interconnection of regional 

and national electricity markets, for the 

full industry, for in-scope facilities only, 

and as the distribution of impacts at the 

facility level. No single metric or impact 

level definitively measures economic 

impacts. Rather, 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. 

VIII. Benefits Analysis 

A. Introduction 

This section presents EPA’s estimates 

of the national environmental benefits 

of the options analyzed for 316(b) 

facilities. In this section, EPA describes 

how it calculated values for those 

benefits it could monetize. It also 

presents descriptive information for 

those benefits for which it could not 

develop a monetary value. The benefits 

assessed occur because of reductions in 

impingement, where fish and other 

aquatic life are trapped on equipment at 

the entrance to the CWIS, and 

entrainment, where aquatic organisms, 

eggs, and larvae are taken into the 

cooling system, passed through the heat 

exchanger, and then discharged back 

into the source water body, (I&E 

mortality) at cooling water intake 

structures (CWIS) affected by the 

proposed rulemaking. I&E mortality 

kills or injures large numbers of aquatic 

organisms at all life stages. Based on 

impingement mortality and entrainment 

data presented in I&E mortality facility 

studies, EPA assumes a mortality rate of 

100% for both impinged and entrained 

individuals. Mortality rates are then 

adjusted based on the efficiency of 

technology in place.90 By reducing I&E 

mortality rates, the proposed options are 

likely to increase the number of fish, 

shellfish, and other aquatic organisms in 

affected water bodies. In turn, this 

increased number of aquatic organisms 

directly improves welfare for 

individuals using the affected aquatic 

resources, generating so-called ‘‘use 

benefits’’ such as increases to the value 

of recreational and commercial 

fisheries. Reductions to I&E mortality 

also improve welfare for individuals 

absent any use of the affected resources, 

so-called ‘‘nonuse benefits,’’ such as 

improved ecosystem function and 

resource bequest values. Section VIII.D 

provides an overview of the types and 

sources of benefits anticipated, how 

these benefits are estimated, the level of 

benefits that the proposed options 

would achieve, and how monetized 

benefits compare to costs. 

EPA derived national benefit 

estimates for the proposed options from 

a series of regional studies representing 

a range of water body types and aquatic 

resources. Section VIII.B provides detail 

on the regional study design. Sections 

VIII.C through VIII.E briefly describe the 

methods EPA used to evaluate I&E 

mortality impacts at Section 316(b) 

facilities, and to derive an economic 

value associated with these losses. 

Further, because IPM does not predict 

where new capacity occurs, and EPA 

has not identified any other information 

projecting where new units would be 

located, EPA did not estimate benefits 

associated with new capacity (i.e. new 

units at an existing facility). As noted 

above, EPA also did not include costs 

for these new units in its social cost 

analysis. This is consistent with EPA’s 

treatment of new facilities, such as new 

offshore oil and gas facilities in the 

Phase III rule. 

The methodologies used to estimate 

benefits of proposed options are largely 

built upon those used to estimate 

benefits for the suspended Phase II 

regulation and the remanded rule for 

316(b) Phase III existing facilities. In 

addition to updating these analyses, 

EPA more fully investigated the effects 

of I&E mortality on threatened and 

endangered (T&E) species, and 

improved its estimation of nonuse 

benefits. The 2011 Environmental and 

Economic Benefits Analysis document 

for the proposed 316(b) Existing Facility 

rule (hereafter EEBA) provides detailed 

descriptions of the these new 

methodologies used to analyze the 

benefits of proposed regulatory options, 

and provides references to (i) Part A of 

the 2004 Regional Benefits Analysis for 

the suspended Final Section 316(b) 

Phase II Rule, and (ii) Part A of the 2006 

Regional Benefits Analysis Document 

for the Final Section 316(b) Phase III 

Existing Facilities Rule for analyses 

using similar methodologies. 

The EEBA document provides EPA’s 

benefit estimates for the proposed 

options. EPA relied on information on 

cooling water systems and intake 

structures already in place collected in 

the Section 316(b) Industry Surveys (the 

Industry Screener Questionnaire (SQ) 

and the Detailed Industry Questionnaire 

(DQ)) to estimate the number of 

manufacturing facilities that would 

potentially be in-scope of the regulatory 

options considered for the Proposed 

Existing Facilities Rule. Because the 

DQs were sent to a sample of the 

manufacturing industries that use 

cooling water, the respondents were 

assigned sample weights designed to 

represent other facilities that were not 

covered in the survey. For the analysis 

of in-scope Electric Generators, EPA 

used information on cooling water 

systems and intake structures already in 

place, from 656 in-scope facilities that 

responded to the 2000 Section 316(b) 

Surveys (the Industry Short Technical 

Questionnaire (STQ) and the Detailed 

Industry Questionnaire (DQ)). All inscope facilities have design intake flow 

of at least 2 million gallons per day 

(MGD). Regional benefits are estimated 

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22238 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

91The California region includes manufacturing 

facilities in the state of California and four facilities 

in Hawaii. It excludes coastal electric generating 

facilities in the state of California due to state 

regulation of cooling water intakes for these 

facilities. There are no coastal facilities in Oregon 

and a single facility in Washington classified as a 

baseline closure. 

92Ricker, W.E. 1975. Computation and 

interpretation of biological statistics of fish 

populations. Fisheries Research Board of Canada, 

Bulletin 191; Hilborn, R. and C.J. Walters. 1992. 

Quantitative Fisheries Stock Assessment, Choice, 

Dynamics and Uncertainty. Chapman and Hall, 

London and New York.; Quinn, T.J., II. and R.B. 

Deriso. 1999. Quantitative Fish Dynamics. Oxford 

University Press, Oxford and New York; Dixon, 

D.A. 1999. Catalog of Assessment Methods for 

Evaluating the Effects of Power Plant Operations on 

Aquatic Communities. Final Report. Report number 

TR_112013. 

from the sample of facilities for which 

there is sufficient DQ information to 

estimate the environmental impacts of 

regulatory options. The environmental 

impacts from the set of explicitly 

analyzed facilities are then extrapolated 

to the universe of facilities within a 

region using statistical weights 

developed for this analysis. National 

benefits are estimated as the sum of all 

regional benefits. 

B. Regional Study Design 

EPA evaluated the benefits of today’s 

rule in seven study regions (California,91

North Atlantic, Mid Atlantic, South 

Atlantic, Gulf of Mexico, Great Lakes, 

and Inland). Regions were defined based 

on ecological similarities within regions 

(e.g. similar communities of aquatic 

species), and on characteristics of 

commercial and recreational fishing 

activities. The five coastal regions 

identified (California, North Atlantic, 

Mid-Atlantic, South Atlantic, and Gulf 

of Mexico) correspond to those of the 

National Oceanic and Atmospheric 

Administration’s National Marine 

Fisheries Service (NMFS). The Great 

Lakes region includes Lake Ontario, 

Lake Erie, Lake Huron (including Lake 

St. Clair), Lake Michigan, Lake Superior, 

and the connecting channels (Saint 

Mary’s River, Saint Clair River, Detroit 

River, Niagara River, and Saint 

Lawrence River to the Canadian border) 

as defined in 33 U.S.C. 1268, Sec. 

118(a)(3)(b). The Inland region includes 

all remaining facilities that withdraw 

water from freshwater lakes, rivers, and 

reservoirs. Notably, 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. During periods of low 

river flow, or during periods of higher 

than average withdrawals of cooling 

water, the proportionate withdrawal of 

source waters may be much higher. 

Thus, the potential for adverse 

environmental impacts may increase. 

The number and total operational intake 

flow of all 316(b) facilities by study 

region is presented in Exhibit VIII–1. 

EXHIBIT VIII–1—NUMBER OF FACILITIES AND TOTAL MEAN OPERATIONAL FLOW (BGD), BY REGION

Region 

Number of 

potentially 

regulated 

facilities a

Once-through 

flow Closed-cycle flow Total flow 

California b ........................................................................................ 8 1.2 0.0 1.2 

Great Lakes ..................................................................................... 67 18.8 0.2 19.0 

Inland c ............................................................................................. 669 134.9 3.9 138.8 

Mid-Atlantic ...................................................................................... 54 28.1 0.1 28.2 

Gulf of Mexico .................................................................................. 30 12.9 0.0 12.9 

North Atlantic ................................................................................... 26 7.0 0.0 7.0 

South Atlantic ................................................................................... 17 7.4 < 0.1 7.5 

All Regions ............................................................................... 871 210.3 4.2 214.5 

a This table presents the unweighted number of facilities because weighted facilities counts are not estimated separately by benefits region. 

The estimated total weighted number of potentially regulated facilities is 1152 (including baseline closures). b The California region includes manufacturing facilities in the state of California and four facilities in Hawaii. It excludes coastal electric generating facilities in the state of California due to state regulation of cooling water intakes for these facilities. There are no coastal facilities in Oregon 

and a single facility in Washington classified as a baseline closure. c A facility in Texas has intakes located in both the Inland and Gulf of Mexico regions. It is included within the Inland region in the current table 

to prevent double-counting. 

To estimate regional I&E mortality, 

EPA extrapolated loss data from 97 

facilities that conducted I&E mortality 

studies (model facilities) to all in-scope 

facilities within the same region. EPA 

judged these 97 studies include the 

most representative studies with the 

best available data. EPA used regions to 

account for differences in ecosystems, 

aquatic species, and characteristics of 

commercial and recreational fishing 

activities. Extrapolation was conducted 

on the basis of actual intake flow 

reported for the period 1996–1998 by 

facilities in response to EPA’s Section 

316(b) Detailed Questionnaire and Short 

Technical Questionnaire. Chapter 3 of 

the EEBA document provides details of 

the extrapolation procedure. Because 

the goal of the analysis was to provide 

estimates of I&E mortality losses at 

regional and national scales, EPA 

recognizes that there may be substantial 

variability in the number of actual 

losses (and benefits) of individual 

facilities. However, EPA concludes that 

extrapolation is a reasonable basis for 

developing estimates of regional- and 

national-level benefits for the purposes 

of this proposed rulemaking. 

C. Physical Impacts of I&E Mortality 

EPA’s benefits analysis is based on 

facility-provided I&E mortality 

monitoring data. Facility data consist of 

records of impinged and entrained 

organisms sampled at intake structures 

and cover organisms of all ages and life 

stages. Sampling protocols were not 

standardized across facilities. 

Differences among facility protocols 

included sampling methods and 

equipment used, the number of samples 

taken, sampling duration, and the unit 

of time and volume of intake flow used 

to express I&E mortality losses. To 

standardize estimates across facilities, 

EPA converted sampling counts into 

annual I&E mortality losses. Using 

standard fishery modeling techniques,92

EPA constructed models that combined 

facility-derived I&E mortality counts 

with life history data from the scientific 

literature to derive annual estimates of: 

• Age-one equivalent losses (A1Es)— 

the number of individuals of different 

ages impinged and entrained by facility 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22239 

93 Indirect losses account for about 9 percent of 

commercial and recreational harvest reductions at 

baseline. 

intakes, standardized to equivalent 

numbers of 1-year old fish. A 

conversion rate between all life history 

stages and age 1 is calculated using 

species-specific survival tables. The loss 

of an individual younger than age 1 

results in a conversion rate less than 1 

while the loss of an individual older 

than age 1 results in a conversion rate 

greater than 1. 

• Foregone fishery yield—pounds of 

commercial harvest and numbers of 

recreational fish and shellfish that are 

not harvested due to I&E mortality. EPA 

used the Thompson-Bell equilibrium 

yield model (Ricker, 1975) to convert 

I&E mortality losses to forgone fishery 

yield assuming that (1) I&E mortality 

losses reduce the future yield of 

harvested adults, and (2) reductions in 

I&E mortality rates will lead to an 

increase in harvested biomass. The 

general procedure involves multiplying 

age-specific harvest rates by age-specific 

weights to calculate an age-specific 

expected yield. 

• Biomass Production Foregone— 

biomass that would have been produced 

had individuals not been impinged or 

entrained (Rago, 1984), calculated for all 

forage species from species- and agespecific growth rates and survival 

probabilities. It refers to the weight of 

impinged and entrained forage species 

that are not commercial or recreational 

fishery targets but serve as valuable 

components of aquatic food webs, 

particularly as an important food supply 

to other aquatic species, including 

commercial and recreational species. 

Estimates of foregone fishery yield 

include direct and indirect losses of 

impinged and entrained species that are 

harvested. Indirect losses represent the 

yield of harvested species lost due to 

reductions in prey availability based on 

a simple trophic transfer model (i.e. 

forage species).93 A detailed 

methodology for these analyses is 

provided in Chapter 3 of the EEBA 

document. 

Studies from individual facilities may 

under or overestimate I&E mortality 

rates. For example, facility studies 

typically focus on a subset of fish 

species impacted by I&E mortality, 

resulting in some species being ignored, 

and thereby number of individuals lost 

to I&E mortality being underestimated. 

Due to the low number of replicate 

studies, estimating the magnitude of this 

underestimate is not possible. Moreover, 

studies often do not count early life 

stages of organisms that are difficult to 

identify. In addition, many of the I&E 

mortality studies used by the Agency 

were conducted over 30 years ago, prior 

to the improvement to aquatic 

conditions that have resulted from 

implementation of the Clean Water Act. 

In locations where water quality was 

degraded at the time of I&E mortality 

sampling relative to current conditions, 

the abundance and diversity of fish 

populations may have been depressed, 

resulting in low I&E mortality estimates. 

Therefore, use of these data may 

underestimate the magnitude of current 

I&E mortality losses. Alternatively, 

studies may have occurred in locations 

where local fish populations are 

currently lower than they were when 

the study occurred. Such a shift in fish 

populations may have occurred due to 

natural variability in populations, 

because of other anthropogenic effects 

(i.e., pollution, over-harvesting, etc.), or 

because of competition from invasive 

species. In such cases, the use of these 

data may overestimate the magnitude of 

current I&E mortality losses. 

The use of linear methods for 

projecting losses to fish and shellfish in 

the waterbody may also overstate or 

understate impacts. Nevertheless, EPA 

believes that the data from facility 

studies were sufficient to estimate the 

relative magnitude of I&E mortality 

losses nationwide. Exhibit VIII–2 

presents EPA’s estimates of baseline 

annual I&E mortality losses, and 

reductions to annual I&E mortality 

losses estimated to occur under various 

regulatory options. Option 3 results in 

the greatest reduction in I&E mortality, 

followed by Option 2, Option 1, and 

Option 4, respectively. EPA did not 

model the entrainment reductions for 

Option 1 and Option 4 because these are 

based on site-specific determinations of 

BTA, which are impossible to predict. 

While EPA does estimate potential 

ranges of costs for these site-specific 

determinations in section VII (though 

not as part of the primary cost 

estimates), EPA cannot estimate 

comparable ranges of monetized 

benefits because benefits are location 

specific and EPA has no way of 

predicting what entrainment technology 

would be adopted at any specific 

facility. However, EPA believes the 

entrainment reductions resulting from 

site-specific BTA determinations could 

be significant, depending on the 

technologies adopted. 

VIII–2—BASELINE I&E MORTALITY LOSSES AND REDUCTIONS FOR ALL IN-SCOPE FACILITIES BY REGULATORY OPTION

Loss mode Baseline I&E 

losses 

Reduction in losses by regulatory option 

Option 1 Option 2 Option 3 Option 4 

Individuals (millions) 

IM ..................................................................... 517.46 421.62 500.44 504.14 413.70 

EM .................................................................... 527,968.21 0.00 400,351.83 407,417.58 0.00 

E Mortality ........................................................ 528,485.67 421.62 400,852.27 407,921.72 413.70 

Age-One Equivalents (millions) 

IM ..................................................................... 747.40 614.97 722.53 728.35 602.42 

EM .................................................................... 1,441.52 0.00 1,259.02 1,285.20 0.00 

I&E Mortality ..................................................... 2,188.92 614.97 1,981.55 2,013.55 602.42 

Forgone Fishery Yield (million lbs) 

IM ..................................................................... 15.21 11.99 14.86 14.93 11.86 

EM .................................................................... 56.30 0.00 43.66 44.31 0.00 

I&E Mortality ..................................................... 71.50 11.99 58.52 59.24 11.86 

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22240 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

VIII–2—BASELINE I&E MORTALITY LOSSES AND REDUCTIONS FOR ALL IN-SCOPE FACILITIES BY REGULATORY OPTION— 

Continued 

Loss mode Baseline I&E 

losses 

Reduction in losses by regulatory option 

Option 1 Option 2 Option 3 Option 4 

Production Forgone (million lbs) 

IM ..................................................................... 152.71 126.44 148.09 149.32 123.81 

EM .................................................................... 485.07 0.00 393.39 406.88 0.00 

I&E Mortality ..................................................... 637.78 126.44 541.48 556.20 123.81 

Scenarios: Option 1 = IM limitations based on modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); 

Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle 

cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

Exhibit VIII–3 presents EPA’s 

estimates of annual I&E mortality losses 

by option and by fish category. 

Estimates of annual forgone fishery 

yield include both direct losses to 

harvested species as well as indirect 

losses due to reductions in prey fish 

species. Because the vast majority of the 

biomass moving through food webs is 

lost due to low trophic transfer 

efficiency (i.e., does not reach the higher 

trophic levels with direct use value to 

humans), the portion of I&E mortality 

losses with direct human use values 

(i.e., those that contribute to forgone 

harvest) represent only a small 

percentage of all organisms suffering 

I&E mortality losses at CWIS. Neither 

forage species nor the unlanded portion 

of recreational and commercial species 

were assigned direct use values in this 

analysis, though losses in forage species 

did contribute to the overall losses in 

recreational and commercial species as 

noted above. Because the majority of 

annual I&E mortality losses include 

unharvested recreational and 

commercial fish and forage fish, 

considering nonuse values in the final 

Section 316(b) rule benefits analysis is 

particularly important. 

EXHIBIT VIII–3—DISTRIBUTION OF ANNUAL BASELINE I&E MORTALITY LOSSES AND REDUCTIONS BY SPECIES CATEGORY

AND REGULATORY OPTION, FOR ABSOLUTE LOSSES AND AGE-1 EQUIVALENTS

I&E loss metric Baseline I&E 

losses 

Reduction in losses by regulatory option 

Option 1 Option 2 Option 3 Option 4 

Individuals (millions) 

All Species ....................................................... 528,485.67 421.62 400,852.27 407,921.72 413.70 

Forage Species ................................................ 360,431.51 307.89 278,690.45 283,584.80 301.21 

Commercial & Recreational Species ............... 168,054.16 113.73 122,161.82 124,336.91 111.49 

Commercial & Recreational Harvest ............... 59.41 15.66 53.28 54.05 15.51 

Lost Individuals with Direct Use Value (%) ..... 0.01 3.71 0.01 0.01 3.75 

Age-One Equivalents (millions) 

All Species ....................................................... 2,188.92 614.97 1,981.55 2,013.55 602.42 

Forage Species ................................................ 1,654.78 525.66 1,512.64 1,535.44 514.11 

Commercial & Recreational Species ............... 534.15 89.31 468.91 478.11 88.31 

Commercial & Recreational Harvest (million 

fish) ............................................................... 59.41 15.66 53.28 54.05 15.51 

A1E Losses with Direct Use Value (%) ........... 2.71 2.55 2.69 2.68 2.57 

Scenarios: Option 1 = IM limitations based on modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); 

Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle 

cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

D. National Benefits of Today’s 

Considered Options 

1. Overview 

Economic benefits of the proposed 

options for in-scope facilities can be 

broadly defined into use and nonuse 

benefit categories of goods and services. 

Use values include benefits that 

pertain to the use (direct or indirect) of 

affected fishery resources. Use value 

reflects the value of all current direct 

and indirect uses of a good or service. 

Direct use benefits can be further 

categorized according to whether or not 

affected goods and services are traded in 

the market (e.g. commercially-captured 

fish are traded, recreational catch is 

not). Likewise, indirect use benefits can 

be linked to either market or nonmarket 

goods and services. For example, 

reductions to I&E mortality losses of 

forage fish will enhance the biomass of 

species targeted for commercial (market) 

and recreational (nonmarket) uses. 

Nonuse benefits are those benefits 

that are independent of any current or 

anticipated use of a resource. Nonuse 

benefits reflect human values associated 

with existence and bequest motives. 

EPA estimated the economic benefits 

from national regulatory options using a 

range of valuation methods. Commercial 

fishery benefits were valued using 

market data. Recreational angling 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22241 

benefits were valued using a benefits 

transfer approach. To estimate indirect 

use benefits from reduced I&E mortality 

losses to forage species, EPA used a 

simple trophic transfer model. This 

model translated changes in I&E 

mortality losses of forage fish into 

changes in the harvest of commercial 

and recreational species. All benefits for 

fish saved under today’s proposed rule 

are estimates based on projected 

numbers of age-one equivalent fish, 

converted to harvestable age equivalents 

on a species-by-species basis for those 

commercial species analyzed. 

EPA calculated the monetary value of 

use benefits of the national categorical 

regulatory options for existing facilities 

using two discount rate values: 3% and 

7%. All dollar values presented are in 

2009$. Because avoided fish deaths 

occur mainly in fish that are younger 

than harvestable age (eggs, larvae, and 

juveniles), the benefits from avoided I&E 

mortality would be realized typically 

3–4 years after their avoided death. A 

detailed description of the approaches 

used to address this can be found in 

Appendix C of the EEBA. 

Neither forage species nor the 

unlanded portion of recreational and 

commercial were assigned direct use 

values in this analysis. Their potential 

value to the public is derived from 

several alternative sources: Their 

indirect use as both food and breeding 

population for those fish that are 

harvested, the willingness of 

individuals to pay for the protection of 

fish based on a sense of altruism, 

stewardship, bequest, or vicarious 

consumption, and their support of 

ecosystem stability and function 

(nonuse benefits). To estimate a subset 

of nonuse benefits from reducing losses 

to forage species, and landed and 

unlanded commercial and recreational 

species, EPA explored benefits transfer 

from nonmarket valuation studies of 

nonuse values of aquatic ecosystem 

improvements. These efforts generated 

partial estimates of nonuse values for 

resource changes expected to result in 

the North Atlantic and Mid-Atlantic 

benefits regions from the proposed 

options, but EPA was unable to estimate 

reliable nonuse valuations for changes 

expected to result in other study 

regions. EPA is in the process of 

developing a stated preference survey to 

estimate total willingness to pay (WTP) 

for improvements to fishery resources 

affected by I&E mortality from in-scope 

316(b) facilities (75 FR 42,438). 

However EPA did not have sufficient 

time to fully develop and implement 

this survey for the proposed regulation. 

EPA will issue a Notice of Data 

Availability pending completing survey 

implementation and data analysis. As a 

consequence of the challenges 

associated with estimating nonuse 

benefits, some non-monetized benefits 

are described only qualitatively or 

quantitatively. 

2. Timing of Benefits 

Discounting refers to the economic 

conversion of future benefits and costs 

to their present values, thereby 

accounting for the fact that individuals 

value future outcomes less than 

comparable near-term outcomes. 

Discounting enables a valid comparison 

of benefits and costs that occur across 

different time periods. For the analysis 

of the proposed options, monetized 

benefits are calculated in a manner that 

makes the timing comparable to the 

annualized cost estimates. The benefits 

of the proposed options are estimated as 

the typical benefits expected once the 

rule takes effect. The need to discount 

arises from two different delays in the 

realization of benefits. 

First, facilities will not always 

achieve compliance in the same year 

that costs are incurred. Facilities will 

face regulatory requirements once the 

rule takes effect, but it will take time to 

make the required changes. It is 

assumed that facilities installing 

impingement technology will achieve 

compliance sooner than facilities 

installing cooling towers. Facilities 

installing only impingement technology 

are assumed to have an average 

compliance year of 2015, non-nuclear 

electric generating facilities installing 

towers have an average compliance year 

of 2020, and nuclear electric generating 

facilities and manufacturing facilities 

installing towers have an average 

compliance year of 2025. To account for 

the lag between the incurrence of costs 

and the realization of benefits, benefits 

are discounted to a greater extent 

compared to the costs. 

Second, an additional time lag will 

result between technology 

implementation and increased fishery 

yields. This lag occurs because several 

years may pass between the time an 

organism is spared from I&E mortality 

and the time of its potential harvest. For 

example, a larval fish spared from 

entrainment (in effect, at age 0) may be 

caught by a recreational angler at age 3, 

meaning that a 3-year time lag arises 

between the incurred technology cost 

and the realization of the estimated 

recreational benefit. Likewise, if a 

1-year-old fish is spared from 

impingement and is then harvested by 

a commercial waterman at age 2, there 

is a 1-year lag between the incurred cost 

and the subsequent commercial fishery 

benefit. To account for this growth 

period, EPA applied discounting by 

species groups in each regional study. 

3. Recreational Fishing Valuation 

a. Recreational Fishery Methods 

To estimate recreational benefits of 

the proposed options, EPA developed a 

benefits transfer approach based on a 

meta-analysis of recreational fishing 

valuation studies designed to measure 

the various factors that determine 

willingness to pay for catching an 

additional fish per trip. Regional 

benefits are summarized as follows (see 

Chapter 7 of the EEBA document for 

details): 

1. Estimate annual foregone catch of 

recreational fish (number of fish) 

attributable to I&E mortality under 

current conditions. 

2. Estimate the marginal value per 

fish. 

3. Multiply forgone catch by the 

marginal value per fish to estimate the 

total annual value of forgone catch. 

4. Estimate the annual value of 

reductions in forgone catch attributable 

to the regulatory analysis options. 

5. Discount benefits at 3% and 7% to 

reflect the time lag between I&E 

mortality reductions and increased 

harvests. 

b. Estimated Benefits to Recreational 

Anglers 

Decreasing I&E mortality increases the 

number of fish available to be caught by 

recreational anglers, thereby increasing 

angler welfare. Exhibit VIII–4 shows the 

estimated benefits resulting from 

reduced I&E mortality under today’s 

options. The total annualized 

recreational fishing benefit for all 

regions, discounted at 3% (I&E mortality 

combined), ranges from $15.3 to $44.9 

million; and the total for all regions, 

discounted at 7%, ranges from $13.9 to 

$33.3 million. 

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EXHIBIT VIII–4—ANNUAL RECREATIONAL FISHING BENEFITS FROM ELIMINATING OR REDUCING I&E MORTALITY LOSSES AT

ALL IN-SCOPE FACILITIES BY REGULATORY OPTION

Regulatory Option Increased harvest 

(million fish) 

3% Discount rate 

(million 2009$) 

7% Discount rate 

(million 2009$) 

Baseline ......................................................................................................... 26.79 $76.89 $75.64 

Option 1 ......................................................................................................... 5.77 15.62 14.21 

Option 2 ......................................................................................................... 23.55 43.52 32.40 

Option 3 ......................................................................................................... 24.06 44.94 33.30 

Option 4 ......................................................................................................... 5.65 15.34 13.94 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a 

design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; 

Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

4. Commercial Fishing Valuation 

Reductions in I&E mortality at cooling 

water intake structures are expected to 

benefit the commercial fishing industry. 

By reducing the number of fish killed, 

the number of fish available for harvest 

is expected to increase. The next section 

summarizes the methods EPA used to 

estimate benefits to the commercial 

fishing sector. The following section 

presents the estimated commercial 

fishing benefits. 

a. Commercial Fishing Valuation 

Methods 

The total loss to the economy from 

I&E mortality impacts on commercially 

harvested fish species is determined by 

the sum of changes in both producer 

and consumer surplus. EPA assumed a 

linear relationship between stock and 

harvest, such that if 10% of the current 

commercially targeted stock were 

harvested, then 10% of the 

commercially targeted fish lost to I&E 

mortality would have been harvested, 

absent I&E mortality. The percentage of 

fish harvested is based on data of 

historical fishing mortality rates. 

Producer surplus provides an estimate 

of the economic damages to commercial 

fishers, but welfare changes can also be 

expected to accrue to final consumers of 

fish and to commercial consumers 

(including processors, wholesalers, 

retailers, and middlemen) if the 

projected increase in harvest is 

accompanied by a change in price. The 

analysis of market impacts involves the 

following steps (see Chapter 6 of the 

EEBA for details): 

1. Assessing the net welfare changes 

for fish consumers due to changes in 

fish harvest and the corresponding 

change in fish price. 

2. Assessing net welfare changes for 

fish harvesters due to the change in total 

revenue, which could be positive or 

negative. 

3. Calculating the increase in net 

social benefits when the fish harvest 

changes by combining the welfare 

changes for consumers and harvesters. 

For a more detailed description of the 

methodology for commercial fishing, see 

Chapter 6 of the EEBA. 

b. Commercial Fishing Valuation 

Results 

Exhibit VIII–5 presents the estimated 

annual commercial fishing benefits 

attributable to the proposed options. 

The results reported include the total 

reduction in losses in pounds of fish, 

and the value of this reduction 

discounted at 3%, and 7%. With a 3% 

discount rate, total estimated 

annualized commercial fishing benefits 

for the U.S., range from $1.0 to $4.5 

million. Applying a 7% rate, these 

benefits range from $0.9 to $3.3 million. 

EPA estimated the expected price 

changes from eliminating baseline levels 

of I&E mortality losses and found them 

to be small, ranging from 0.13 percent 

to 2.1 percent. 

EXHIBIT VIII–5 ANNUAL COMMERCIAL FISHING BENEFITS FROM ELIMINATING OR REDUCING I&E MORTALITY LOSSES AT

ALL IN-SCOPE FACILITIES BY REGULATORY OPTION

Regulatory Option Increased harvest 

(million fish) 

3% Discount rate 

(million 2009$) 

7% Discount rate 

(million 2009$) 

Baseline ......................................................................................................... 32.62 $8.05 $7.89 

Option 1 ......................................................................................................... 9.89 0.99 0.89

Option 2 ......................................................................................................... 29.72 4.47 3.31 

Option 3 ......................................................................................................... 29.99 4.52 3.34 

Option 4 ......................................................................................................... 9.86 0.99 0.89

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a 

design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; 

Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

5. Nonuse Benefits 

Aquatic organisms without any direct 

uses account for the majority of cooling 

water intake structure losses (Exhibit 

VIII–6.). Although individuals do not 

use these resources directly, they may 

value changes in their status or quality. 

To assess the public policy significance 

of the ecological gains from the national 

categorical regulatory options for 

existing facilities, EPA developed a 

benefit transfer approach to partially 

monetize nonuse benefits associated 

with reductions in I&E mortality of fish, 

shellfish, and other aquatic organisms 

under the categorical regulatory options 

for the North Atlantic and Mid-Atlantic 

benefits regions. EPA applied estimated 

values from a study occurring in Rhode 

Island; these estimates are likely to be 

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representative of nonuse values held by 

individuals residing in the Northeast 

US, and less accurate in other regions. 

EPA was unable to identify comparable 

studies occurring in other regions which 

could be used to estimate nonuse 

values. Chapter 8 of the EEBA provides 

further detail on this analysis. 

a. Nonuse Valuation Methods 

The preferred techniques for 

estimating total resource values (use 

plus nonuse) are to use values from the 

existing studies or conduct original 

stated preference surveys. There are 

many studies in the environmental 

economics literature that quantify 

benefits or willingness to pay (WTP) 

associated with various types of water 

quality and aquatic habitat changes. 

However, none of these studies allows 

the isolation of non-market WTP 

associated with quantified reductions in 

fish losses for forage fish. Most available 

studies estimate WTP for broader, and 

sometimes ambiguously defined, 

policies that simultaneously influence 

many different aspects of aquatic 

environmental quality and ecosystem 

services, but for which WTP associated 

with fish or aquatic life alone cannot be 

identified. Stated preference methods 

rely on surveys which ask people to 

state their willingness to pay (WTP) for 

particular ecological improvements, 

such as increased protection of aquatic 

species or habitats with particular 

attributes. EPA is in the process of 

developing a stated preferences survey 

to estimate total willingness to pay 

(WTP) for improvements to fishery 

resources affected by I&E mortality from 

in-scope 316(b) facilities. The survey 

will provide estimates of total values, 

will allow estimates of value associated 

with specific choice attributes 

(following standard methods for choice 

experiments), and will also allow the 

flexibility to provide insight into the 

relative importance of use versus 

nonuse values in the 316(b) context. 

However EPA did not have sufficient 

time to fully develop and deploy this 

survey and derive reliable estimates of 

the monetary value of reducing those 

impacts at the national level. Benefit 

transfer of values from existing stated 

preference studies was used by EPA in 

the absence of an original study. 

EPA identified a recent study 

conducted by Johnston et al., (2009) that 

is closely related to the 316(b) policy 

context. Both Johnston et al., (2009) and 

the present context address policy 

changes that increase the number of 

forage fish in aquatic habitat with 

unknown effects on overall fish 

populations. Originally developed for a 

case study addressing Rhode Island 

residents’ preferences for the restoration 

of migratory fish passage over dams in 

the Pawtuxet and Wood-Pawcatuck 

watersheds of Rhode Island, Johnston et 

al., (2009) estimates nonuse values by 

asking respondents to consider changes 

in ecological indicators reflecting 

quantity of habitat, abundance of 

wildlife, ecological condition, and 

abundance of migratory fish species. 

Within this study, estimated values 

were based on the relative change in 

abundance of fish species impacted to 

the greatest extent by restoration. 

Estimated benefit functions from the 

Johnston et al., (2009) choice 

experiment survey allows one to 

distinguish benefits associated with 

resource uses from those associated 

primarily with nonuse motives. Within 

the benefit transfer application, WTP is 

quantified for increases in nonharvested fish alone, based on the 

implicit price for migratory fish 

changes. This transfer holds all effects 

related to identifiable human uses 

constant (e.g., effects on catchable fish, 

public access, observable wildlife, etc.). 

The remaining welfare effect—derived 

purely from effects on forage fish with 

little or no direct human use—may 

therefore be most accurately 

characterized as a nonuse benefit 

realized by households. 

The estimation of nonuse values 

involved the following steps: 

1. Use a variant of the Johnston et al., 

(2009) model (the survey variant which 

characterizes effects on the number of 

migratory fish passing upstream) to 

estimate household WTP per percent 

increase in the number of fish in a given 

watershed. 

2. Calculate the relative change in 

abundance for the fish species impacted 

to the greatest extent by the regulation. 

By comparing increases in age-1 

equivalent fish to estimates of biomass 

at species’ carrying capacity, EPA found 

that of all species with habitats inside 

the boundaries of the North Atlantic and 

Mid-Atlantic benefits regions, winter 

flounder is likely to experience the 

largest percent change in population. 

This species is harvested; however fish 

and commercial species may be forage 

during early life-stages and have nonuse 

values. 

3. Estimate total household WTP by 

applying model results for WTP per 

percentage to estimated winter flounder 

losses. Total regional WTP is the 

product of household WTP and the 

number of households within the 

affected region (see Chapter 8 of the 

EEBA for details.) 

b. Estimated Nonuse Benefits for the 

North Atlantic and Mid Atlantic 

Regions 

EPA expects that decreasing I&E 

mortality will lead to increased fish 

abundance in affected waterbodies, thus 

increasing nonuse benefits. Exhibit VIII– 

6 shows the benefits that would result 

from reducing I&E mortality losses 

through today’s proposed options. 

Estimates of WTP were calculated based 

on the increase in age-1 equivalent 

winter flounder relative to estimated 

current biomass. Discounted at 3%, the 

total annualized nonuse benefit for the 

North Atlantic and Mid-Atlantic 

regions, ranges from $0.5 to $75.5 

million. When discounted at 7%, 

annualized nonuse benefits range from 

$0.5 to $58.5 million. 

EXHIBIT VIII–6—ANNUAL NONUSE BENEFITS FROM ELIMINATING OR REDUCING I&E MORTALITY LOSSES AT ALL IN-SCOPE

FACILITIES BY REGULATORY OPTION

Regulatory option 

Winter flounder 

I&E losses 

(million A1E) 

Increased winter 

flounder age-1 

equivalent 

abundance relative 

to virgin biomass 

(%) 

3% Discount rate 

(millions 2009$) 

7% Discount rate 

(millions 2009$) 

Baseline ................................................................... 6.50 6.56 $128.64 $130.78 

Option 1 ................................................................... 0.03 0.03 0.52 0.48 

Option 2 ................................................................... 5.32 5.37 72.09 55.93 

Option 3 ................................................................... 5.57 5.63 75.48 58.52 

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94 Genera is the plural of genus. Genus is the rank 

superior to species in taxonomic biological 

classification. For example, the genus of Atlantic 

salmon (Salmo falar) is Salmo. 

EXHIBIT VIII–6—ANNUAL NONUSE BENEFITS FROM ELIMINATING OR REDUCING I&E MORTALITY LOSSES AT ALL IN-SCOPE

FACILITIES BY REGULATORY OPTION—Continued 

Regulatory option 

Winter flounder 

I&E losses 

(million A1E) 

Increased winter 

flounder age-1 

equivalent 

abundance relative 

to virgin biomass 

(%) 

3% Discount rate 

(millions 2009$) 

7% Discount rate 

(millions 2009$) 

Option 4 ................................................................... 0.03 0.03 0.52 0.48 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a 

design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; 

Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

6. Threatened and Endangered Species 

This section summarizes methods and 

results of EPA’s analysis of benefits 

from improved protection of threatened 

and endangered (T&E) species from the 

national categorical regulatory options 

considered in today’s Proposal. Chapter 

5 of the EEBA provides further detail on 

this analysis. 

For T&E species, mortality due to I&E 

mortality from CWISs may represent a 

substantial portion of annual 

reproduction because of the reduced 

population levels that cause a species to 

be protected. Consequently, I&E 

mortality may either lengthen recovery 

time, or hasten the demise of these 

species. Adverse effects of CWIS on T&E 

species may occur in several ways: 

• Populations of T&E species may 

suffer direct harm as a consequence of 

I&E mortality 

• T&E species may suffer indirect 

harm if CWIS alters food webs 

• CWIS may alter habitat critical to 

the long-term survival of T&E species 

(e.g., thermal discharges associated with 

once through cooling) 

Consequently, EPA believes that 316(b) 

regulation may help preserve a number 

of threatened and endangered species. 

a. Qualitative Assessment of I&E 

Mortality Impacts to T&E Species 

By definition, T&E species are 

characterized by low population levels. 

As such, it is unlikely that these species 

are recorded in I&E mortality 

monitoring studies which sample only a 

portion of all I&E mortality losses. Thus, 

losses are difficult to identify and 

quantify within a framework developed 

for common species. Consequently, EPA 

developed a qualitative methodology to 

estimate the number of T&E species 

affected by I&E mortality. 

To qualitatively assess the potential 

for CWIS impacts on aquatic T&E 

species, EPA constructed a database that 

assessed the geographical overlap of 

CWIS and habitat used by aquatic T&E 

species. This database identified the 

number of T&E species potentially 

impacted by each in-scope 316(b) 

facility, and the number of facilities 

potentially impacting each T&E species. 

Additional details can be found in 

Chapter 5 of the EEBA document. 

Using this database, EPA found 89 

federally-listed T&E species that overlap 

with at least one in-scope 316(b) CWIS 

(Exhibit VIII–7) Species included 

freshwater, marine, and anadromous 

fish, freshwater mussels, and sea turtles. 

On average, the habitat of each T&E 

species overlapped with 20 in-scope 

facilities (Exhibit VIII–7), suggesting 

that the regulation of 316(b) facilities 

may have substantial positive benefits 

on ensuring the long-term sustainability 

and recovery of T&E species. 

EXHIBIT VIII–7—NUMBER OF IN-SCOPE 316(B) CWIS WITHIN T&E SPECIES HABITAT ON A PER-SPECIES BASIS

Subset of affected species 1 2 Species Interactions 3

Facilities per T&E species 4

Avg Max 

All T&E Species ....................................................................... 88 1,734 19.70 135 

Sea Turtles .............................................................................. 6 652 108.67 135 

T&E Freshwater Mussels ........................................................ 43 836 19.44 85 

T&E Anadromous Fish ............................................................ 13 115 8.85 64 

T&E Freshwater Fish ............................................................... 21 64 3.05 7 

T&E Marine Fish ...................................................................... 3 17 5.67 11 

1T&E species included species of concern and species under review for listing by the US Fish and Wildlife Service (freshwater) or NOAA National Marine Fisheries Service (marine). Only species overlapping with a minimum of one CWIS are included. 2Two species of coral are included in the ‘All Species’ category, and not in any subcategory. 

3Each interaction represents an overlap between the range of a T&E species and CWIS. 

4Avg = average, Max = maximum. 

b. Quantitative Assessment of I&E 

Mortality Impacts to T&E Species 

Although difficult to observe and 

quantify, EPA identified 15 T&E species 

with confirmed I&E mortality losses. In 

addition to documented species-level 

instances of T&E mortality, EPA 

identified I&E mortality losses at the 

level of genera 94 when these genera 

contain a T&E species whose habitat 

range overlapped the reporting facility’s 

CWIS. Although these are not confirmed 

I&E mortality losses of T&E species, they 

provide evidence that additional T&E 

species are likely to be directly affected 

by I&E mortality. A total of 19 genuslevel matches were reported, suggesting 

that the 15 T&E species suffering I&E 

mortality losses may be an 

underestimate. 

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Of the 15 federally-listed T&E species 

for which losses were documented 

within I&E mortality studies, EPA was 

able to quantify losses for 2 species. 

Data were either qualitative or of 

insufficient quality to quantify regional 

losses for the remaining 13 federallylisted T&E species. EPA also quantified 

losses for the American Paddlefish 

(Polyodon spathula), listed as 

threatened or endangered on several 

state lists, using facility I&E mortality 

loss studies. Exhibit VIII–8 presents 

EPA’s estimates of baseline annual I&E 

mortality losses, and reductions to I&E 

mortality losses estimated to occur 

under various regulatory options. 

EXHIBIT VIII–8—BASELINE ANNUAL I&E MORTALITY LOSSES FOR T&E SPECIES AND REDUCTIONS FOR ALL IN-SCOPE

FACILITIES BY REGULATORY OPTION (A1ES) 

Species Value Baseline Option 1 Option 2 Option 3 Option 4 

Pallid Sturgeon ................................................ Use, Nonuse .............. 88 73 85 86 72 

American Paddlefish ....................................... Use, Nonuse .............. 17,628 8,631 15,946 16,317 8,420 

Topeka Shiner ................................................. Nonuse ....................... 3,669 3,069 3,546 3,581 2,994 

Total ......................................................... ..................................... 21,384 11,773 19,577 19,984 11,486 

Scenarios: Baseline = Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for all facilities with flow 

greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 3 = 

Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with 

flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons 

per day (MGD). 

I&E mortality is only one of many 

factors that adversely affect T&E species. 

Estimating total population impacts 

from changes in I&E losses requires 

estimates of current populations of these 

fish and estimates of other 

anthropogenic effects which were not 

readily available for all T&E species 

with quantified I&E mortality losses at 

the time of this analysis. Therefore, EPA 

was unable to quantify effects on T&E 

population from the 316(b) regulation. 

c. Valuation Methods of T&E Fish 

Species 

EPA believes that for T&E species, the 

primary value is non-use value. Harvest 

of these species is prohibited (or at least 

restricted), reflecting a societal 

judgment that protection and 

preservation of these species is of 

greater value than harvest. As noted 

above, EPA had sufficient data from I&E 

mortality studies to quantify I&E 

mortality loss estimates for three T&E 

species (Exhibit VIII–8). EPA applied 

estimates from a Random Utility Model 

(RUM) analysis conducted for the 

suspended 316(b) Phase II regulation to 

evaluate recreational fishing benefits for 

I&E loss reductions for two of these 

species. EPA applied transfer values 

from this analysis to monetize I&E 

mortality losses for these species (see 

Chapter 5 for details). EPA emphasizes 

that nonuse values for T&E fish species 

are likely to be significantly greater than 

any use values, and these EPA was not 

able to quantify. With this caveat, the 

results of the analysis of recreational 

fishing benefits for two T&E species are 

shown below. 

d. Estimated Monetary Benefits From 

Reduced Mortality of T&E Fish Species 

Using a 3% discount rate, total 

annualized use benefits for the two T&E 

species with monetized I&E mortality 

losses are estimated to range from $0.5 

to $0.7 million. Applying a 7% discount 

rate, annualized benefits range from 

$0.4 to $0.6 million. 

EXHIBIT VIII–9—ANNUAL USE BENEFITS FROM ELIMINATING OR REDUCING I&E MORTALITY LOSSES OF T&E SPECIES AT

ALL IN-SCOPE FACILITIES BY REGULATORY OPTION

Regulatory option Increased harvest 

(number of fish) 

3% Discount rate 

(million 2009$) 

7% Discount rate 

(million 2009$) 

Baseline ......................................................................................................... 17,715.55 $1.14 $1.14 

Option 1 ......................................................................................................... 8,704.08 0.50 0.45 

Option 2 ......................................................................................................... 16,030.56 0.72 0.56 

Option 3 ......................................................................................................... 16,403.11 0.72 0.55 

Option 4 ......................................................................................................... 8,491.59 0.49 0.44 

Note: Values are included for pallid sturgeon and paddlefish in the Inland region. 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a 

design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; 

Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD.; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day (MGD). 

EPA notes that the benefit values 

presented in Exhibit VIII–9 represent 

only a fraction of values for T&E species 

potentially affected by the proposed 

regulation: the Agency was able to 

obtain use values for only a small subset 

of all affected T&E species. Moreover, 

because of the nature of T&E species, 

even a small increase in population may 

yield economic and ecological benefits 

(e.g., Richardson and Loomis 2008, 

Huppert et al., 2004; Berrens et al., 

1996) 

e. Valuation Methods for T&E Sea 

Turtles 

In addition to estimating values of 

T&E fish with quantitative estimates of 

I&E mortality losses, EPA estimated the 

WTP for sea turtle conservation. In this 

analysis, EPA applied estimates from a 

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study using a stated preference 

valuation approach to estimate total 

economic value of a management 

program that reduces the risk of 

extinction of loggerhead sea turtles 

(Whitehead 1993). 

Although I&E mortality is relatively 

low compared to mortality from shrimp 

trawling and other fisheries (Plotkin 

1995), it is known that low levels of 

turtle mortality during juvenile and 

subadult life stages can have a 

substantial effect on population growth 

(Crouse et al., 1987). EPA believes that 

the marginal decrease in extinction 

probability of sea turtles due to 316(b) 

regulatory options is likely to be at least 

0.01, or a 1% decrease in the probability 

of extinction over 25 years. This 

assessment is based upon reports that 

I&E mortality may result in the loss of 

more than 100 turtles per year, and 

because turtle population growth rates 

are known to be sensitive to changes in 

juvenile and subadult life stages (Crouse 

et al., 1987). 

f. Estimated Monetary Benefits From 

Reduced Mortality of T&E Sea Turtles 

The U.S. range of loggerhead sea 

turtles includes the Gulf of Mexico, 

South Atlantic, Mid-Atlantic, and North 

Atlantic 316(b) regions (USFWS 2010). 

To calculate national WTP for an 

increased 25-year survival probability of 

loggerhead sea turtles, EPA assumed the 

affected population to include 

households in states with in-scope 

316(b) facilities that occur within 

loggerhead sea turtle habitat. Using this 

assumption, EPA determined 53.4 

million households would be willing to 

pay for improved protection of 

loggerhead sea turtles. Although 

incidences of mortality have been 

reported at facilities in California, 

Texas, Florida, South Carolina, North 

Carolina, and New Jersey EPA does not 

have sufficient information to quantify 

total sea turtle losses due to intakes, or 

the reductions in such losses that might 

occur from the various options. But as 

an illustrative example, assuming that 

the survival probability of loggerhead 

sea turtles over 25 years was increased 

by 1%, and applying a mean household 

value of $0.35 (2009$, see the EEBA 

Chapter 5), the monetized value would 

be $16.6 million and $16.0 million 

using discount rates of 3% and 7%, 

respectively. Because EPA does not 

currently have accurate national 

estimates of I&E mortality for turtle 

species, nor are population models 

available that estimate the effect of 

316(b) regulation on population size and 

extinction risk, these estimates are 

presented only as an illustrative 

example, and are not included in 

national totals. 

g. Other Indications of Society’s WTP 

for Protection of T&E Species 

Many sources provide information 

that indicates that society places 

significant value on protecting T&E 

species. These include, but are not 

limited to: 

• The Endangered Species Act of 

1973 which provides for the 

conservation of T&E species of fish and 

wildlife. To comply with this law the 

federal government and state 

governments spent a total of $467.6 

million during fiscal year 2008 on 

protection of federally listed T&E 

species with habitat overlapping CWIS. 

• Restrictions placed on the habitat 

occupied by T&E species. For example, 

water diversions on the San JoaquinSacramento River delta, in place to 

protect the Delta Smelt (Hypomesus 

transpacificus), limit the extraction of 

water for drinking and agriculture. 

• The willingness of individuals to 

volunteer their time to conserve T&E 

species. For example, dozens of 

organizations recruit thousands of 

volunteers every year to participate in 

sea turtle conservation and research 

projects; volunteers are often required to 

undergo substantial training and 

commit to long hours. 

While costs to replace, protect or 

enhance stocks, and costs to users 

affected by efforts to conserve stocks are 

not direct measures of economic 

benefits, they indicate that society is 

willing to pay significant sums to 

protect and restore populations of T&E 

species. Although I&E mortality is only 

one of many stressors on these species, 

reducing the magnitude of these losses 

may contribute to the recovery of 

populations over time, thereby 

eliminating some costs associated with 

conserving threatened and endangered 

species. 

7. Assessment of Thermal Discharge 

Impacts 

Since thermal discharges are a 

product of once-through cooling water 

systems, the impacts of thermal 

discharges are a relevant consideration 

when assessing appropriate 

technologies to reduce the effects of 

cooling water intakes. Thermal 

pollution has long been recognized to 

cause harm to the structure and function 

of aquatic ecosystems. Concerns about 

the impacts of thermal discharges are 

addressed by provisions of CWA 

Section 316(a) regulations. NPDES 

permits are required to limit thermal 

discharges in order to ensure that that 

there is no appreciable harm to a 

balanced, indigenous population of 

shellfish, fish and wildlife. Permit 

requirements, however, may not totally 

eliminate all adverse impacts in all 

cases. In addition to reducing total I&E 

mortality, closed cycle cooling reduces 

thermal pollution. Most retrofit 

installations of cooling towers at electric 

generating facilities have been required 

by NPDES permits for the sole purpose 

of reducing thermal discharges. 

EPA did not quantify nationally the 

impacts of thermal discharges. However, 

numerous studies have shown that 

thermal discharges may substantially 

alter the structure of aquatic 

communities by modifying 

photosynthetic, metabolic, and growth 

rates. Thermal discharges also harm 

aquatic life by reducing levels of 

dissolved oxygen, altering the location 

and timing of fish behavior such as 

spawning, aggregation, and migration, 

and may cause thermal shock-induced 

mortality for some species. Adverse 

temperature effects may also be more 

pronounced in aquatic ecosystems that 

are already subject to other 

environmental stressors such as high 

levels of biochemical oxygen demand, 

sediment contamination, or pathogens. 

Within mixing zones, which often 

extend several miles downstream from 

outfalls, thermal discharges may impair 

efforts to restore and protect the 

waterbody. For example, permit 

requirements to limit nitrogen 

discharges in a watershed, and thereby 

reduce harmful algal blooms, may be 

counteracted by thermal discharges 

which promote growth of harmful algae. 

Thermal discharges may have indirect 

effects on fish and other vertebrate 

populations through increasing 

pathogen growth and infection rates. 

Thermal discharges may thus alter the 

ecological services, and reduce the 

benefits, of aquatic ecosystems that 

receive heated effluent. The magnitude 

of thermal effects on ecosystem services 

is related to facility-specific factors, 

including the volume of the waterbody 

from which cooling water is withdrawn 

and returned, other heat loads, the rate 

of water exchange, the presence of 

nearby refugia, and the assemblage of 

nearby fish species. Again, EPA 

emphasizes that thermal impacts are 

supposed to be minimized through 

implementation of Section 316(a), but to 

the extent that any impacts remain after 

the requirements in 316(a) have been 

satisfied, replacing once-through 

cooling with closed-cycle cooling may 

provide additional benefits. 

8. National Monetized Benefits 

Quantifying and monetizing 

reductions in I&E mortality losses due to 

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the regulatory options is extremely 

challenging. National benefit estimates 

are subject to uncertainties inherent in 

valuation approaches used to assess the 

benefits categories (See Chapters 5, 6, 7, 

and 8 of the EEBA document.). The 

combined effect of these uncertainties is 

of unknown magnitude or direction— 

that is, the estimates may over- or 

understate the anticipated national-level 

benefits. While EPA has no data to 

indicate that the results for each benefit 

category are atypical or unreasonable, 

EPA believes that some potentially 

significant benefit categories have not 

been fully monetized, and thus the 

national monetized benefits presented 

below likely underestimate total 

benefits, challenging the Agency’s 

ability to base BTA decision making on 

the relationship of quantified costs and 

benefits alone. 

Exhibit VIII–10 presents EPA’s 

estimates of the partial monetized 

benefits from I&E mortality reduction of 

the considered regulatory options. 

These monetized values represent use 

values from increased commercial and 

recreational catch, recreational fishing 

benefits from increased catch of 

threatened and endangered species, and 

nonuse values associated with an 

increase in fish abundance (those fish 

that are not caught) in the North and 

Mid-Atlantic benefit regions. Partial 

estimated benefits from reducing I&E 

mortality under the proposed rule and 

alternative options range from $17.3 to 

$125.6 million (2009$) per year, 

discounted at 3%, and from $15.8 to 

$95.7 million (2009$) per year when 

discounted at 7%. EPA was not able to 

fully monetize the benefits for this 

proposal. Thus, the estimates presented 

represent a conservative (i.e. low) 

estimate of total regulatory benefits. 

EXHIBIT VIII–10—SUMMARY OF NATIONAL BENEFITS FOR ALL IN-SCOPE FACILITIES BY REGULATORY OPTION

Regulatory option 

Monetized benefit categories 

Recreational 

fishing 

Commercial 

fishing Nonuse T&E Species a Total 

3% Discount Rate (Millions 2009$) 

Baseline ..................................................................... 76.89 8.05 12.64 1.14 214.72 

Option 1 ..................................................................... 15.62 0.99 0.52 0.50 17.63 

Option 2 ..................................................................... 43.52 4.47 72.09 0.72 120.79 

Option 3 ..................................................................... 44.94 4.52 75.48 0.72 125.65 

Option 4 ..................................................................... 15.34 0.99 0.52 0.49 17.33 

7% Discount Rate (Millions 2009$) 

Baseline ..................................................................... 75.64 7.89 130.78 1.14 215.45 

Option 1 ..................................................................... 14.21 0.89 0.48 0.45 16.04 

Option 2 ..................................................................... 32.40 3.31 55.93 0.56 92.20 

Option 3 ..................................................................... 33.30 3.34 58.52 0.55 95.71 

Option 4 ..................................................................... 13.94 0.89 0.48 0.44 15.76 

aBenefits estimates for T&E species are restricted to recreational fishing benefits from increased catch of T&E species. They do not include 

benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species. 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM Everywhere; Option 1 = IM limitations based on modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with 

flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM limitations based on modified 

traveling screens for all facilities with flow greater than 2 MGD; Option 4 = IM limitations based on modified traveling screens for all facilities with 

flow greater than 50 million gallons per day (MGD). 

E. Uncertainty and Limitations 

EPA recognizes that its estimates of 

ecological and economic benefits 

projected to occur under regulation are 

impacted by uncertainty at many levels 

(uncertainty and limitations are 

discussed in detail in Chapters 2, 3, 4, 

5, 6, 7, and 8). Moreover, due to 

incomplete data availability, and 

limited resources, the Agency 

recognizes that there are limitations to 

the analyses presented above and in the 

EEBA. Examples of uncertainty and 

limitations include, but are not limited 

to: 

• Not all ecological goods and 

services impacted by CWIS at in-scope 

316(b) facilities are modeled or 

monetized, suggesting that the total 

benefits of regulation may be 

underestimated. For example, potential 

increases to ecosystem stability that may 

occur as a result of regulation is not 

explicitly estimated nor monetized, 

though it is difficult to parse out what 

exactly is or is not included in WTP 

estimates for non-use values, which 

were included for the North Atlantic 

and Mid-Atlantic regions. 

• When particular ecological goods 

and services are monetized, data is not 

always available at a national scale. For 

example, EPA was able to estimate 

nonuse benefits of I&E mortality 

reductions only within the North and 

Mid-Atlantic regions, suggesting that 

nonuse values are significantly 

underestimated. 

• EPA makes simplifying 

assumptions that allow for I&E mortality 

losses and benefits to be estimated on a 

national scale. For example, EPA 

assumes that I&E mortality losses from 

model facilities are representative of all 

facilities within a region. The effect of 

these assumptions are unknown, and 

may lead to over- or under-estimates of 

modeled losses and benefits. However, 

EPA notes that the age of the studies 

and likely improvements to waters make 

them less representative of current 

conditions. 

• EPA relies on biological and 

economic data of various scope, 

duration, and date to estimate regional 

and national baseline and benefits. The 

effect of these various differences on 

total regional and national benefits is 

uncertain. 

• EPA developed methodologies to 

estimate regional and national baselines 

and benefits of 316(b) regulation. As 

such, location- and species-specific 

quantitative estimates may not be 

precise. Overall, however, EPA believes 

its approach is valid for regional and 

national-scale analyses that incorporate 

a large number of facilities and species. 

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Overall, EPA recognizes many sources 

of uncertainty in its models, and is 

aware of the limitations of analysis. 

However, EPA has used the best 

available scientific and economic 

methodologies to partially monetize 

benefits using available resources. As 

noted above, EPA expects to improve its 

benefits estimates by incorporating the 

results of a national survey of WTP to 

protect fish and aquatic resources into 

the analysis for the final rule. Because 

EPA was only able to partially monetize 

non-use benefits, EPA expects that true 

benefits are greater than the estimates 

presented here. 

IX. Implementation 

The following sections describe how 

the Agency expects the proposed rule 

requirements to be implemented. 

A. How would the proposed 

requirements be applied? 

The requirements of today’s proposal 

would be applied to individual facilities 

through NPDES permits issued by the 

EPA or authorized States under Section 

402 of the Clean Water Act. Today’s 

proposed requirements would apply to 

each cooling water intake structure 

located at a facility subject to the 

requirements. In cases where a facility 

has more than one cooling water intake 

structure, and each cooling water intake 

structure provides cooling water to one 

or more generating or manufacturing 

units, the proposed requirements would 

apply to each cooling water intake 

structure individually and compliance 

would be required at each cooling water 

intake structure. 

B. When would affected facilities be 

required to comply? 

These promulgated regulations would 

become effective sixty (60) days after the 

date of publication in the Federal 

Register. After the effective date of a 

regulation, permitting authorities often 

allow facilities some time period to 

come into compliance. As proposed, 

facilities would have to comply with the 

impingement mortality requirements as 

soon as possible. Facilities may request 

additional time (not to exceed eight 

years as described below) to comply 

with the requirements for impingement 

mortality. With respect to entrainment 

requirements, under the proposal, 

existing facilities must comply as soon 

as possible under a schedule of 

compliance established by the 

permitting authority. 

EPA found during site visits that the 

vast majority of facilities indicated they 

could comply with the impingement 

requirements of the Phase II rule within 

a single permit term (5 years), with most 

sites needing less time and some sites 

needing slightly more. For example, 

facilities that already have traveling 

screens should be able to modify the 

existing traveling screens, add fish 

return systems, conduct necessary 

testing, and achieve the IM limits within 

a few years. On the other hand, EPA 

identified certain technical and 

logistical issues at some facilities that 

may warrant additional time, such as 

replacing intake structures to utilize 

wedgewire screens, adding additional 

intake bays to reduce intake velocity, or 

pilot testing of other technologies. As 

discussed in section 6, the need for 

outages by multiple facilities in one 

geographic area would need to be 

coordinated so as to minimize any 

impacts on the consistency and 

reliability of power generation; this 

could also result in the need for slightly 

more time. In these circumstances EPA 

expects a facility could reasonably 

require as long as 8 years to attain 

compliance. 

For those existing facilities that will 

be subject to both impingement 

mortality and entrainment mortality 

requirements, the Director should take 

this into account when establishing a 

deadline for compliance, which may 

also result in the facility needing more 

time to comply with the IM 

requirements. For example, 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. 

The Director would have the 

discretion to implement a shorter (i.e., 

more stringent) timeline for compliance, 

but in no event should the Director 

allow a compliance schedule to extend 

beyond the dates specified at § 125.93. 

Furthermore, EPA expects today’s 

proposal gives advance notice to 

affected facilities what the Agency’s 

expectations are regarding compliance 

schedules. 

The record demonstrates that 

biological organisms subject to 

impingement and entrainment from 

cooling water intake structures may vary 

considerably from site to site with 

respect to types of species, quantity of 

organisms, distribution of life stages, 

feeding habits, and other factors. As a 

result, EPA envisions that each facility 

subject to today’s proposal would study 

available technologies and operational 

measures, and subsequently install, 

incorporate and optimize the technology 

most appropriate for each site. EPA 

believes the proposed § 125.93 affords 

flexibility for a reasonable amount of 

time to conduct biological studies, 

assess and select appropriate 

technologies, apply for necessary 

permits, complete construction, and 

optimize the technologies’ performance. 

The permitting authority would 

establish any additional interim 

milestones within these timelines in 

accordance with the existing NPDES 

provisions at § 122.47. 

C. What are my requirements? 

As proposed, all existing facilities 

subject to the proposed rule that 

withdraw a DIF of greater than two 

MGD would be required to comply with 

the impingement mortality requirements 

at § 125.94(b). EPA estimates that 1262 

facilities would be subject to 

impingement mortality requirements. 

As many as 93 percent of electric 

generators and 73 percent of 

manufacturers already employ traveling 

or other intake screens which could be 

modified to meet today’s proposed 

requirements. In addition, 374 facilities 

already have full or partial cooling 

towers, and most of these facilities 

already have a maximum intake velocity 

of less than 0.5 feet per second. As a 

result, half of all manufacturers and 

more than three-fourths of all electric 

generators may already meet some or all 

of today’s proposed requirements for 

impingement mortality. 

To provide flexibility in meeting 

proposed rule IM requirements, EPA is 

offering facilities two options for 

compliance with IM requirements. 

Facilities may install technologies and 

demonstrate that they are meeting the 

impingement mortality restrictions at 

§ 125.94(b)(1), or demonstrate 

compliance with the monthly and 

annual intake velocity standards as 

described at § 125.94(b)(2). As discussed 

in Section VI, intake velocity is an 

important parameter for minimizing 

impingement and therefore reducing 

impingement mortality. Data in the 

record demonstrate that facilities with a 

maximum intake velocity of 0.5 feet per 

second significantly reduce the 

potential for impingement and 

impingement mortality to a level equal 

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to or better than the impingement 

mortality restrictions. EPA is therefore 

proposing an alternative standard that 

would allow facilities to demonstrate to 

the Director that either the maximum 

design intake velocity, or the maximum 

actual intake velocity as it passes 

through the structural components of a 

screen measured perpendicular to the 

mesh (under § 125.94(b)(2)(i)) or 

through the opening of the intake (under 

§ 125.94(b)(2)(ii)), will not exceed 0.5 

feet per second. 

Under either option for compliance 

with the Impingement Mortality 

standard, facilities that withdraw water 

from an ocean or estuary would also be 

required to reduce IM of shellfish to a 

level commensurate with properly 

deployed barrier nets. EPA expects 

passive screens would meet or exceed 

this level of performance, and has 

identified passive screens in the 

proposed regulations as being preapproved for purposes of meeting this 

requirement. Also, under either option, 

facilities would be required to ensure 

that their intakes are structured so as to 

avoid entrapment (i.e., organisms being 

trapped in an intake bay or canal and 

unable to escape). Facilities with 

traveling screens located in a forebay 

would be expected to install fish 

handling and return systems to meet 

this requirement. EPA expects passive 

screens such as cylindrical wedgewire 

would also meet this requirement. 

In addition, facilities would be 

required to meet entrainment mortality 

standards as determined by the Director 

on a case-by-case basis. Under today’s 

proposal, facilities with an actual intake 

flow of 125 MGD or greater would be 

required to submit with their 

application studies as described in this 

section to assist the Director in 

establishing appropriate entrainment 

mortality controls for that facility. The 

Director would evaluate each facility’s 

application materials to make a sitespecific determination of BTA for 

entrainment mortality for the facility. In 

some cases, the Director may determine 

that additional requirements are not 

necessary to satisfy BTA for 

entrainment. 

Cooling water intakes with flows 

totaling less than two MGD are not 

subject to the proposed requirements. In 

addition, intakes where less than 25% 

of flow is used for cooling are also not 

subject to these requirements. 

Emergency back-up water flows would 

not be considered cooling water for 

purposes of this calculation. 

Furthermore, EPA seeks to promote 

water reuse in the proposed rule by 

specifically exempting wastewater, 

process water, and other gray water 

(even when used for cooling) from the 

definition of cooling water used in this 

calculation. However, once an intake 

satisfies these threshold requirements, 

all flow from the intake is subject to the 

impingement requirements. To the 

extent that any entrainment 

requirements are based on flow 

commensurate with closed cycle 

cooling, these would be applied to the 

non-contact cooling portion of the 

intake only, and could be met, in full or 

in part, by reusing water for non-cooling 

purposes. Intakes not subject to the rule 

may still be subject to requirements 

under other Federal, state, or local 

authorities. 

New units at existing facilities would 

be required to meet the impingement 

mortality requirements at § 125.94(b) 

and entrainment mortality requirements 

at § 125.94(d). The impingement 

mortality requirements would be the 

same as those identified for existing 

facilities, i.e. either numerical 

restrictions on impingement mortality 

or a maximum intake velocity. The 

entrainment mortality requirements are 

based on the level of EM reductions 

achieved by closed-cycle cooling. The 

proposed rule would allow facilities to 

demonstrate performance 

commensurate with the closed-cycle 

cooling identical to the Phase I rule 

provision for new facilities. 

D. What information must I submit in 

my permit application? 

All existing facilities would be 

required to complete and submit 

application studies to describe the 

source water body, cooling water intake 

structures, cooling water system; 

characterize the biological community 

in the vicinity of the cooling water 

intake structure; develop a plan for 

controlling impingement mortality; 

describe biological survival studies that 

address technology efficacy and other 

studies on impingement and 

entrainment at the facility; and, discuss 

the operational status of the facility. The 

application studies would be used by 

the Director to assess the impingement 

and entrainment impacts of the cooling 

water intake structure and determine 

appropriate technological and/or 

operational controls, as necessary. 

Facilities withdrawing more than 125 

MGD and existing facilities with new 

units would also complete and submit 

studies to characterize entrainment 

mortality and assess the costs and 

benefits of installing various potential 

technological and operational controls. 

A list of the proposed application 

materials is presented below. EPA 

request comment on the practicability 

and burden for facilities to prepare and 

submit this information. EPA is 

particularly interested in the burden to 

facilities with DIF < 50 MGD. EPA also 

requests comment on the practical 

utility of this information. 

List of Proposed Application Materials 

Facilities that already employ closed-cycle 

cooling and new units at existing 

facilities that plan to employ closed 

cycle would submit: 

122.21(r)(2) Source water physical data 

122.21(r)(3) Cooling water intake structure 

data 

122.21(r)(4) Source water baseline 

biological characterization data 

122.21(r)(6) Proposed Impingement 

Mortality Reduction Plan 

All other existing facilities would submit: 

122.21(r)(2) Source water physical data 

122.21(r)(3) Cooling water intake structure 

data 

122.21(r)(4) Source water baseline 

biological characterization data 

122.21(r)(5) Cooling water system data 

122.21(r)(6) Proposed Impingement 

Mortality Reduction Plan 

122.21(r)(7) Performance studies 

122.21(r)(8) Operational status 

Facilities withdrawing more than 125 MGD 

(except those with closed cycle), and 

existing facilities with new units that 

plan to demonstrate performance 

equivalent to closed cycle would also 

submit: 

122.21(r)(9) Entrainment characterization 

study 

122.21(r)(10) Comprehensive technical 

feasibility and cost evaluation study 

122.21(r) (11) Benefits valuation study 

122.21(r) (12) Non-water quality impacts 

assessment 

A summary of each application 

requirement follows. The proposed 

timeline for submittal of the application 

materials is outlined in the next section. 

Section 122.21(r)(2) Source Water 

Physical Data 

This requirement is unchanged from 

the Phase I rule and the suspended 

Phase II rule. The facility would be 

required to submit data to characterize 

the facility and evaluate the type of 

waterbody and species potentially 

affected by the cooling water intake 

structure. The applicant would be 

required to submit: A narrative 

description and scaled drawings 

showing the physical configuration of 

all source water bodies used by the 

facility, including areal dimensions, 

depths, salinity and temperature 

regimes, and other documentation that 

supports the determination of the water 

body type where each cooling water 

intake structure is located; identification 

and characterization of the source 

waterbody’s hydrological and 

geomorphological features, as well as 

the methods used to conduct any 

physical studies to determine the 

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intake’s area of influence within the 

waterbody and the results of such 

studies; and locational maps. The 

Director would use this information to 

evaluate the appropriateness of any 

design or technologies proposed by the 

applicant. 

Section 122.21(r)(3) Cooling Water 

Intake Structure Data 

This requirement is unchanged from 

the Phase I rule and the suspended 

Phase II rule. This data would be used 

to characterize the cooling water intake 

structure and evaluate the potential for 

impingement and entrainment of 

aquatic organisms. Information on the 

design of the intake structure and its 

location in the water column would 

allow evaluation of which species and 

life stages would potentially be subject 

to impingement and entrainment. A 

diagram of the facility’s water balance 

would be used to identify the 

proportion of intake water used for 

cooling, make-up, and process water. 

The water balance diagram also 

provides a picture of the total flow in 

and out of the facility, and would be 

used to evaluate gray water, waste 

water, and other reuses within the 

facility. The applicant would be 

required to submit: A narrative 

description of the configuration of each 

of cooling water intake structure and 

where it is located in the water body 

and in the water column; latitude and 

longitude in degrees, minutes, and 

seconds for each cooling water intake 

structure; a narrative description of the 

operation of each of cooling water 

intake structure, including design intake 

flows, daily hours of operation, number 

of days of the year in operation and 

seasonal changes, if applicable; a flow 

distribution and water balance diagram 

that includes all sources of water to the 

facility, recirculating flows, and 

discharges; and engineering drawings of 

the cooling water intake structure. 

Section 122.21(r)(4) Source Water 

Baseline Biological Characterization 

Data 

This information would be required to 

characterize the biological community 

in the vicinity of the cooling water 

intake structure and to characterize the 

operation of the cooling water intake 

structures. This supporting information 

must include existing data if they are 

available. However, the facility may 

supplement the data using newly 

conducted field studies if it chooses to 

do so. The information the applicant 

would submit includes: Identification of 

data that are not available and efforts 

made to identify sources of the data; a 

list of species (or relevant taxa) for all 

life stages and their relative abundance 

in the vicinity of the cooling water 

intake structure; identification of the 

species and life stages that would be 

most susceptible to impingement and 

entrainment. Species evaluated should 

include the forage base as well as those 

most important in terms of significance 

to commercial and recreational 

fisheries. In addition, the applicant 

must provide identification and 

evaluation of the primary period of 

reproduction, larval recruitment, and 

period of peak abundance for relevant 

taxa; data representative of the seasonal 

and daily activities (e.g., feeding and 

water column migration) of biological 

organisms in the vicinity of the cooling 

water intake structure; identification of 

all threatened, endangered, and other 

protected species that might be 

susceptible to impingement and 

entrainment at your cooling water 

intake structures; and documentation of 

any public participation or consultation 

with Federal or State agencies 

undertaken in development of the plan. 

If the applicant supplements the 

information with data collected using 

field studies, supporting documentation 

for the Source Water Baseline Biological 

Characterization would include a 

description of all methods and quality 

assurance procedures for sampling, and 

data analysis including a description of 

the study area; taxonomic identification 

of sampled and evaluated biological 

assemblages (including all life stages of 

fish and shellfish); and sampling and 

data analysis methods. The sampling 

and/or data analysis methods used must 

be appropriate for a quantitative survey 

and based on consideration of methods 

used in other biological studies 

performed within the same source water 

body. The study area should include, at 

a minimum, the area of influence of the 

cooling water intake structure. The 

applicant may also identify protective 

measures and stabilization activities 

that have been implemented, and 

describe how these measures and 

activities affected the baseline water 

condition in the vicinity of the intake. 

Existing facilities with closed-cycle 

cooling would not be required to submit 

this information under the proposed 

rule. 

Section 122.21(r)(5) Cooling Water 

System Data 

This data would be used by the 

Director in determining the appropriate 

standards that would be applied to the 

facility. Facilities would be able to use 

this information, along with the water 

balance diagram required by 

122.21(r)(5), to demonstrate the extent 

to which flow reductions have already 

been achieved. The applicant would 

provide the following information for 

each cooling water intake structure they 

use: A narrative description of the 

operation of the cooling water system 

and its relationship to cooling water 

intake structures; the proportion of the 

design intake flow that is used in the 

system including a distribution of water 

used for contact cooling, non-contact 

cooling, and process uses; a distribution 

of water reuse (to include cooling water 

reused as process water, process water 

reused for cooling, and the use of gray 

water for cooling); description of 

reductions in total water withdrawals 

including cooling water intake flow 

reductions already achieved through 

minimized process water withdrawals; 

description of any cooling water that is 

used in a manufacturing process either 

before or after it is used for cooling, 

including other recycled process water 

flows; the proportion of the source 

waterbody withdrawn (on a monthly 

basis); the number of days of the year 

the cooling water system is in operation 

and seasonal changes in the operation of 

the system, if applicable. The applicant 

would also submit a description of 

existing impingement and entrainment 

technologies or operational measures 

and a summary of their performance, 

including but not limited to reductions 

in entrainment mortality due to intake 

location and reductions in total water 

withdrawals and usage, and efficiencies 

in energy production for each producing 

unit that result in the use of less cooling 

water, including but not limited to 

combined cycle and cogeneration. For 

example, the applicant may provide 

comparative density data for the intake 

to demonstrate the extent to which 

location of the intake has reduced 

adverse environmental impact. 

Section 122.21(r)(6) Proposed 

Impingement Mortality Reduction Plan 

The facility’s proposed Impingement 

Mortality Reduction Plan would 

identify the approach the facility would 

use to meet proposed rule IM 

requirements, i.e., direct measure of 

impingement mortality through 

sampling, or demonstration that the 

maximum intake velocity is equal to or 

less than 0.5 fps. For the former, the 

Plan would include the duration and 

frequency of monitoring (which EPA 

assumes would generally be conducted 

on a biweekly basis, although the exact 

frequency would be determined case-bycase), the monitoring location, the 

organisms to be monitored, and the 

method in which naturally moribund 

organisms would be identified and 

taken into account. The Plan would also 

address the impingement mortality of 

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shellfish, as appropriate, for intakes that 

withdraw from oceans and tidal waters, 

e.g., seasonal deployment of barrier 

nets, passive screens, or an appropriate 

handling and return system. The Plan 

would document all methods and 

quality assurance/quality control 

procedures for sampling and data 

analysis. The proposed sampling and 

data analysis methods would be 

appropriate for a quantitative survey 

and include consideration of the 

methods used in other studies 

performed in the source waterbody. The 

Plan would include a description of the 

study area (including the area of 

influence of the cooling water intake 

structure(s)), and provide a taxonomic 

identification of the sampled or 

evaluated biological assemblages 

(including all life stages of fish and 

shellfish). 

For facilities that plan to meet IM 

requirements by demonstrating that the 

maximum intake velocity is equal to or 

less than 0.5 fps, the Plan would 

provide for each intake either, 

(1) documentation that the design intake 

velocity is equal to or less than 0.5 feet 

per second, as described at 

§ 125.94(b)(2)(i–ii), or, (2) 

documentation of the facility’s proposed 

method for demonstrating the required 

maximum intake velocity (equal to or 

less than 0.5 feet per second) in 

accordance with § 125.94(b)(2)(i–ii). 

This velocity must be maintained while 

as much as 15 percent of the intake 

surface area is blocked due to debris, 

ice, plant growth, or any other clogging 

materials. EPA notes that its proposed 

definition of intake velocity at § 125.92 

provides that this requirement would be 

applicable for screen/mesh type intakes 

as well as offshore intakes. For facilities 

with traveling screens, EPA believes the 

low cost and ease of installing an 

effective fish handling and return 

system warrants the retrofit of such 

controls, even if the maximum intake 

velocity is less than 0.5 feet per second, 

however, this is not required by the 

proposed rule. If intake velocity is not 

maintained at less than 0.5 feet per 

second, the regulation requires modified 

traveling screens to include collection 

buckets designed to minimize 

turbulence to aquatic life, the 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. 

Under the proposed impingement 

requirements, 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. Thus, a 

facility would need to demonstrate that 

their cooling water intake structure does 

not lead to entrapment. This provision 

is intended to avoid the collection of 

impingeable organisms into a cooling 

water intake system where there is 

neither a fish handling and return 

system nor an opportunity for the 

organisms to escape the cooling water 

intake system. For example, a facility 

may have an offshore intake with a 

velocity cap that meets the maximum 

velocity requirements for IM. The intake 

then leads to a pipe, canal, or forebay 

for which there is no means to return 

the organisms to the source water. In 

this example, this provision would 

require that the facility implement a fish 

handling and return system. Note since 

the facility would meet the maximum 

velocity requirements for IM, the facility 

would not have to conduct biological 

monitoring to demonstrate compliance 

with the IM limits. EPA anticipates 

facilities that already employ closedcycle cooling would document the 

maximum intake velocity is equal to or 

less than 0.5 feet per second. EPA 

requests comment on the additional 

controls to address entrapment at 

facilities that employ closed-cycle 

cooling or other technologies with 

velocity equal to or less than 0.5 feet per 

second. 

Section 122.21(r)(7) Performance 

Studies 

Under the proposal, the applicant 

would submit a description of any 

biological survival studies conducted at 

the facility and a summary of any 

conclusions or results, including: Sitespecific studies addressing technology 

efficacy, through-plant entrainment 

survival, and other impingement and 

entrainment mortality studies; studies 

conducted at other locations including a 

justification as to why the data is 

relevant and representative of 

conditions at the facility. Due to 

changes in the water body over time, 

studies older than 10 years should 

include an explanation of why (or why 

not) the data is still relevant and 

representative of conditions at the 

facility. The Director would use such 

studies when assessing the facility’s 

approach to IM and when establishing 

technology based requirements for EM. 

Permit applicants are not required to 

conduct new studies to fulfill this 

requirement. This requirement is rather 

aimed at obtaining results for studies 

that have already been conducted as 

part of past permit proceedings or for 

other purposes. 

Section 122.21(r)(8) Operational Status 

Under the proposal, the applicant 

would submit a description of the 

operational status of each unit 

including: Descriptions of each 

individual unit’s operating status 

including age of the unit, capacity 

utilization for the previous 5 years, and 

any major upgrades completed within 

the last 15 years (e.g., boiler or 

condenser replacement, changes to fuel 

type); a description of completed, 

approved, or scheduled uprates and 

NRC relicensing status for nuclear 

facilities; a description of plans or 

schedules for decommissioning or 

replacement of units; and a description 

of current and future production 

schedules for manufacturing facilities. 

The Director would use such 

information in determining compliance 

schedules. Further, such information 

would be used to determine flow 

reductions due to unit closures, which 

may affect a facility’s DIF or AIF, and 

therefore may result in changes to a 

facility’s regulatory status and 

requirements. Where the remaining 

useful plant life is considerably shorter 

than the useful life of an EM technology, 

this information would also be used to 

support a discussion of benefits for that 

EM technology. 

Section 122.21(r)(9) Entrainment 

Characterization Study 

Under the proposal, this study would 

include a plan for collecting 

entrainment mortality data, requires a 

peer review process, and then requires 

the owner or operator of the facility to 

carry out the data collection. This study 

would provide data necessary to 

evaluate EM for that facility. EPA 

envisions the information already 

collected to meet 122.21(r)(4) 

requirements would be used in 

developing the Entrainment 

Characterization Study. For all species 

and life stages identified under the 

requirements of 122.21(r)(4), the owner 

or operator of the facility would develop 

and submit an entrainment mortality 

data collection plan for review by the 

Director. The entrainment mortality data 

collection plan would include: The 

duration and frequency of monitoring; 

the monitoring location, including a 

description of the study area and the 

area of influence of the cooling water 

intake structure(s); a taxonomic 

identification of the sampled or 

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evaluated biological assemblages 

(including all life stages of fish and 

shellfish); the organisms to be 

monitored, including species of concern 

and threatened or endangered species; 

any other organisms identified by the 

Director; the method in which latent 

mortality would be identified; and 

documentation of all methods and 

quality assurance/quality control 

procedures for sampling and data 

analysis. The proposed sampling and 

data analysis methods must be 

appropriate for a quantitative survey. 

The owner or operator of the facility 

must also provide for peer review of the 

entrainment mortality data collection 

plan. The Director may consult with 

Federal, State and Tribal fish and 

wildlife management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s). Further, the Director 

may require the owner or operator of the 

facility to include additional peer 

reviewers of the plan. EPA expects peer 

reviewers would have appropriate 

qualifications (e.g., in the fields of 

biology, engineering, etc.) for the subject 

matter. An explanation for any 

significant reviewer comments not 

accepted must be included in the final 

plan submission. Additional guidance 

on conducting peer review may be 

found in EPA’s Peer Review handbook, 

available online at http://www.epa.gov/ 

peerreview/pdfs/Peer%20Review%20

HandbookMay06.pdf. 

The Entrainment Characterization 

Study would include the following 

components: 

1. Taxonomic identifications of all life 

stages of fish, shellfish, and any species 

protected under Federal, State, or Tribal 

Law (including threatened or 

endangered species) that are in the 

vicinity of the cooling water intake 

structure(s) and are susceptible to 

entrainment; 

2. Characterization of all life stages of 

fish, shellfish, and any species protected 

under Federal, State, or Tribal Law 

(including threatened or endangered 

species), including a description of the 

abundance and temporal and spatial 

characteristics in the vicinity of the 

cooling water intake structure(s), based 

on sufficient data to characterize 

annual, seasonal, and diel variations in 

entrainment (e.g., related to climate and 

weather differences, spawning, feeding 

and water column migration). These 

may include historical data that are 

representative of the current operation 

of your facility and of biological 

conditions at the site; and, 

3. Documentation of the current 

entrainment of all life stages of fish, 

shellfish, and any species protected 

under Federal, State, or Tribal Law 

(including threatened or endangered 

species). The documentation may 

include historical data that are 

representative of the current operation 

of your facility and of biological 

conditions at the site. Entrainment 

samples to support the facility’s 

calculations would be collected during 

periods of representative operational 

flows for the cooling water intake 

structure and the flows associated with 

the samples would be documented. 

EPA expects this information would 

be used to help determine the sitespecific BTA for EM. For facilities with 

no EM technologies, this information 

would characterize the potential for EM. 

The information would also be used to 

demonstrate that technologies and other 

measures already in place, or sitespecific factors such as intake location 

or design, already reduce EM. For 

example, abundance data may 

demonstrate lower comparative 

densities which can significantly lower 

entrainment rates. The information 

could also be used by new units to 

demonstrate that alternative 

technologies or a combination of 

technologies reduce EM at that site to a 

level commensurate with closed-cycle 

cooling. 

Section 122.21(r)(10) Comprehensive 

Technical Feasibility and Cost 

Evaluation Study 

Under the proposal, the owner or 

operator of the facility would submit an 

engineering study of the technical 

feasibility and incremental costs of 

candidate entrainment mortality control 

technologies. The study would include 

an evaluation of technical feasibility of 

closed-cycle cooling and fine mesh 

screens with a mesh size of 2mm or 

smaller, as well as any other 

entrainment reduction technologies 

identified by the applicant or requested 

by the Director. This study would 

include: a description of all 

technologies and operational measures 

considered (which could include 

alternative designs of closed-cycle 

recirculating systems such as natural 

draft cooling towers, hybrid designs, 

and compact or multi-cell 

arrangements); documentation of factors 

that make a candidate technology 

impractical or infeasible for further 

evaluation. For example, a discussion of 

land availability might include an 

evaluation of adjacent land and acres 

potentially available due to generating 

unit retirements, production unit 

retirements, other buildings and 

equipment retirements, ponds, coal 

piles, rail yards, transmission yards, and 

parking lots; decommissioning of 

existing units; repurposing of existing 

land uses; documentation that 

insufficient acres are available on-site; 

and evidence that the purchase or other 

acquisition of property adjacent to the 

facility is not feasible. EPA is exploring 

providing guidance on assessing land 

availability that might suggest a 

threshold ratio of acres/capcity that 

could serve as a guideline for when 

sufficient land may not be available. 

EPA has not identified any electric 

generating facilities with more than the 

160 acres per GW capacity that EPA 

believes would be unable to construct 

retrofit cooling towers. EPA specifically 

solicits comment on this ratio, and 

solicits data for determining whether 

alternative thresholds are more 

appropriate. 

The proposed rule would require that 

costs be presented as the net present 

value (NPV) of the social costs and the 

corresponding annual value. In addition 

to the required social costs, the owner 

or operator may choose to provide 

facility level compliance costs, however 

such costs must be provided and 

discussed separately from social costs. 

The cost evaluation component of this 

study would include engineering cost 

estimates of all technologies considered 

above and also discuss and provide 

documentation of any outages, 

downtime, energy penalties or other 

impacts to revenue. The cost evaluation 

should be based on least-cost 

approaches to implementing each 

candidate technology while meeting all 

regulatory and operational requirements 

of the plant. Depreciation schedules, 

interest rates, further consideration of 

remaining useful life of the facility as 

discussed in 122.21(r)(8), and any 

related assumptions would be 

identified. 

The owner or operator of the facility 

must obtain peer review of the 

Comprehensive Technical Feasibility 

and Cost Evaluation Study, as described 

above for the Entrainment 

Characterization Study. EPA expects 

peer reviewers would have appropriate 

qualifications (e.g., engineering, 

hydrology, planning and design, etc.) for 

the subject matter. 

Section 122.21(r)(11) Benefits Valuation 

Study 

Under the proposal, the owner or 

operator of the facility would submit a 

detailed discussion of the magnitude of 

water quality benefits, both monetized 

and non-monetized, of the candidate 

entrainment mortality reduction 

technologies evaluated in 122.21(r)(8), 

including incremental changes in the 

impingement mortality and entrainment 

mortality of fish and shellfish; and 

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95The term ‘‘commensurate’’ is intended to be 

viewed in terms of a reduction in the facility’s 

actual intake flow. The facility’s DIF reflects the 

maximum volume of water that the facility can 

withdraw (and would be the basis for applicability) 

but the AIF (based on the facility’s average flows 

over the previous 3 year period) represents the 

impacts to aquatic communities. Reducing the AIF 

is the most appropriate approach, as it represents 

actual impacts and is most representative of a 

facility’s actual operational schedule. EPA fully 

expects, however, that many facilities would 

construct a closed-cycle cooling system based on its 

DIF to comply with the proposed rule, as this 

enables the facility to utilize its full DIF at any 

given time, thereby maintaining full operational 

flexibility. EPA’s costs reflect the costs for the entire 

DIF. See below for more information on how a 

facility can demonstrate that it has achieved a 

reduction in flow that is commensurate with 

closed-cycle cooling. 

96Assuming a cycle of concentration of 3.0 and 

a condenser delta T of 20°F. See Section V for more 

information. 

97Saltwater also includes brackish water, tidal 

rivers, and estuaries where the water has a salinity 

of equal to or greater than 0.5 parts per thousand 

(by mass) at a time of annual low flow. 

98Assuming a cycle of concentration of 1.5 and 

a condenser delta T of 20°F. See Section V for more 

information. 

monetization of these changes to the 

extent appropriate and feasible using 

the best available scientific, engineering, 

and economic information. This may 

include monetization using market 

values, market proxies (e.g., models 

based on travel costs or other 

methodologies), and stated preference 

methods. Benefits that cannot be 

monetized should be quantified where 

feasible and discussed qualitatively. The 

study would also include discussion of 

recent mitigation efforts already 

completed and how these have affected 

fish abundance and ecosystem viability 

in the intake structure’s area of 

influence. Finally, the study would 

identify other benefits to the 

environment and the community, 

including improvements for mammals, 

birds, and other organisms and aquatic 

habitats. The owner or operator of the 

facility must obtain peer review of the 

benefits evaluation study, as described 

above for the Entrainment 

Characterization Study. EPA expects 

peer reviewers would have appropriate 

qualifications (e.g., biologist, 

hydrologist) for the subject matter. 

Section 122.21(r)(12) Non-Water Quality 

Impacts Assessment 

The owner or operator of the facility 

would submit a detailed discussion of 

the changes in non-water quality factors 

attributed to technologies and/or 

operational measures considered. These 

changes may include, but are not 

limited to, increases or decreases in the 

following: Energy consumption; thermal 

discharges including an estimate of 

increased facility capacity, operations, 

and reliability due to relaxed permitting 

constraints related to thermal 

discharges; air pollutant emissions and 

their health and environmental impacts; 

noise; safety such as the potential for 

plumes, icing, and availability of 

emergency cooling water; grid reliability 

including an estimate of changes to 

facility capacity, operations, and 

reliability due to cooling water 

availability; consumptive water use, and 

facility reliability such as production of 

steam and impacts to production based 

on process unit heating or cooling. The 

owner or operator of the facility would 

provide for peer review of the Nonwater Quality Impacts Assessment as 

described above for the Entrainment 

Characterization Study. EPA expects 

peer reviewers would have appropriate 

qualifications (e.g., biologist, safety 

engineer, power engineer, hydrologist) 

for the subject matter. 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. 

EPA is aware that specialized 

experience may be useful or appropriate 

in assessing some of the factors 

indentified in 122.21(r). EPA solicits 

comment on further guidance or rule 

language that could assist in the 

consistent development of these studies 

and more uniform review of these 

factors by the Director. For example, 

EPA could establish modeling of plume 

drift as part of the assessment of icing 

and safety. This requirement could also 

be included as part of the technical 

feasibility and costs analysis required at 

122.21 (r)(10). Similarly, required 

emissions estimates could include more 

specific criteria under 122.21(r)(11). 

Facilities Demonstrating Flow 

Reduction Commensurate With ClosedCycle Recirculating System 

Under § 125.94(d), new units at 

existing facilities would be subject to 

entrainment mortality requirements. 

These facilities may choose to 

demonstrate that they have already 

reduced actual intake flow (AIF) to a 

level commensurate with a closed-cycle 

recirculating system in their permit 

application to meet rule requirements. 

In general, flow reduction may be 

achieved through the use of a closedcycle cooling system such as a wet 

cooling tower (mechanical or natural 

draft), a dry cooling system, variable 

speed pumps, or operational measures 

such as seasonal reductions in flow. 

Under today’s proposal, each facility 

would have the flexibility to select the 

flow reduction technique or 

combinations thereof that best meets 

their operational needs, so long as the 

total reduction in flow is commensurate 

with that of a closed-cycle cooling 

system.95

For today’s proposal, EPA is clarifying 

the term ‘‘commensurate’’ in the context 

of flow reductions. EPA examined its 

record to clarify how a facility could 

demonstrate a reduced flow 

‘‘commensurate’’ with a closed-cycle 

recirculating system. EPA’s record 

demonstrates that for the traditional 

steam electric utility industry, facilities 

located in freshwater areas (with a 

salinity of less than 0.5 parts per 

thousand) that have closed-cycle 

recirculating cooling water systems 

typically reduce water use by 97.5% 

percent from the amount they would 

use if they had once-through cooling 

water systems.96 Similarly, facilities that 

have closed-cycle recirculating cooling 

systems using salt (or brackish) water 97

typically reduce water usage by 94.9 

percent.98 Therefore, if a facility selects 

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), 

EPA is proposing that it would have to 

demonstrate total flow reductions 

approximating 97.5% for freshwater 

withdrawals and 94.9% for saltwater 

withdrawals. Today’s proposal includes 

these criteria in the definition of closedcycle recirculating systems at § 125.92. 

EPA solicits comment on whether to 

establish these metrics as a binding 

requirement, or whether the 

determination of what flow measure is 

commensurate with closed-cycle 

cooling should be left to the Director for 

each facility. 

EPA expects the Director to carefully 

consider the approach proposed by the 

facility to ensure that it is reasonable. 

For example, many facilities have two 

pumps installed per unit, but typically 

only operate one pump at a time. The 

second pump may provide additional 

pumping capacity (such as may be 

required in summer) or it may only 

serve as a back-up or for use during 

maintenance of the main pump. In the 

former case, the facility’s intake flow 

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99 In this scenario, EPA does not envision that a 

facility would be able to remove the second pump 

to demonstrate a reduction in flow, as the pump is 

simply redundant equipment and would not reduce 

the overall water withdrawals. 

100As a point of clarification, EPA notes that flow 

reduction credit would be available to a facility 

regardless of the rationale for maintaining the 

reduced flow. In other words, a facility may have 

ceased operation of a unit for reasons other than 

today’s proposed regulation, and as such, 

withdraws much less water than before. 

Nevertheless, the net effect is that entrainment 

would be reduced. 

101Some facilities have intake systems for units 

that have not operated for an extended time period. 

These units have essentially ceased operations; 

such facilities may include the pumping capacity 

associated with these units in their DIF even though 

it may not accurately represent their actual 

operations (i.e., it may be inappropriate to consider 

these units under 125.94(c)(5)(ii)). 

(both DIF and AIF) should properly 

account for the pumping capacity of 

both pumps. In the latter, the true flow 

for the intake structure may be 

equivalent to the pumping capacity of 

only a single pump.99 Also, EPA is 

aware that some facilities may elect to 

retire units to demonstrate a reduced 

flow and wants to ensure that such 

facilities would qualify for this 

alternative provided they meet the 

applicable requirements.100 EPA is 

proposing that these credits for unit 

closures be valid for 10 years from the 

date of the closure.101 EPA believes 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 technology to control 

entrainment. EPA is seeking comment 

on this approach. 

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 

recyle and reuse of cooling water for 

other purposes. Further, facilities could 

adopt a combination of such 

technologies and practices, provided the 

facility can demonstrate reductions in 

entrainment mortality of 90 percent or 

better as compared to closed-cycle 

cooling. EPA seeks comment on this 

provision. 

E. When are application studies due? 

EPA recognizes that facilities 

previously subject to the withdrawn 

Phase II rule (existing electric generating 

facilities with a DIF greater than 50 

MGD) should have already compiled 

much of the proposed application 

information and expects that these data 

would be used to meet many of the 

requirements under today’s proposal. In 

some cases the information may have 

been collected, but reports may not have 

been generated or finalized. EPA also 

understands that many other facilities 

may not have collected this information, 

e.g., smaller power plants and 

manufacturers, and in those cases 

facilities would have to initiate new 

data collection efforts. For this reason, 

EPA is proposing two different 

timelines for application submittal, as 

illustrated in Exhibits IX–1 and IX–2. 

EPA is proposing that facilities 

previously subject to the Phase II rule 

would be required to submit some 

application studies six months after rule 

promulgation. Other studies would 

follow in sequence over a period of time 

not to exceed five years. Other existing 

facilities not previously subject to the 

withdrawn Phase II rule (e.g., small 

power plants and all existing 

manufacturers) would begin submitting 

application studies three years after rule 

promulgation. Additional required 

studies would be submitted over a 

period not to exceed seven years and six 

months. EPA believes that these 

proposed schedules will afford facilities 

ample time to plan, complete, and 

submit application materials as well as 

provide Directors time to evaluate the 

submissions and develop appropriate 

permit conditions. These schedules are 

linked to the effective date of the rule 

in order to establish a level playing field 

and to avoid delays implementing the 

rule regardless of a facility’s current 

permit status. EPA solicits comment on 

the proposed schedule, and specifically 

seeks comment and data on the 

appropriate amount of time to collect 

data, write reports, conduct peer 

reviews, obtain comment, provide for 

public participation, and issue final 

permit conditions. 

BILLING CODE 6560–50–P 

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BILLING CODE 6560–50–C 

F. What are the monitoring 

requirements in today’s proposal for 

existing facilities? 

1. Monitoring Requirements for 

Impingement Mortality 

Today’s proposed rule proposes 

impingement mortality requirements for 

all existing facilities. As such, facilities 

would be required to monitor to 

demonstrate compliance with the 

impingement mortality restrictions at 

§ 125.94(b)(1), demonstrating a monthly 

average of fish impingement mortality of 

31% or less, and an annual average of 

12% or less. (Different monitoring 

requirements apply for compliance with 

the alternative requirements at 

§ 125.94(b)(2) for design intake velocity; 

these are discussed in a later section.) 

To demonstrate compliance with the 

impingement mortality standards at 

§ 125.94(b)(1), the facility would be 

required to monitor at a frequency 

specified by the Director. EPA assumes 

the facility would monitor no less than 


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102Based on EPA’s site visits and other data, even 

facilities with multiple intakes (and multiple 

screens, etc.) typically only have one fish handling 

and return system. This is consistent with EPA’s 

proposed approach to determine compliance at the 

facility level. For facilities with more than one 

return system (including those that are bidirectional in tidal waters), compliance is still 

determined at the facility level. 

103EPA recognizes that there are no standard 

methods for conducting impingement and 

entrainment studies and that there can be 

variability in designing a sampling plan between 

sites. However, there are elements that should be 

incorporated into any sampling plan, as outlined in 

DCN 10–6708. 

104Facilities that divert the flow directly would 

similarly pass the flow through a net or debris 

basket fitted with 3/8’’ mesh spacing or would only 

count organisms that would have been collected 

with such a basket or net. 

once per week during primary periods 

of impingement as determined by the 

Director, and no less than biweekly 

during all other times. For each 

monitoring event, the facility would 

determine the number of organisms that 

are collected or retained on a 3⁄8 inch 

sieve (i.e., that are impinged [I]), and the 

number that die within 24–48 hours of 

impingement (i.e., impingement 

mortality [IM]). Fish that are included in 

any carryover from a traveling screen or 

removed from a screen as part of debris 

removal would be counted as fish 

impingement mortality. Under the 

proposed definition at 125.92, naturally 

moribund fish and invasive species 

would be excluded from the totals for 

both impingement and impingement 

mortality. The percentage of 

impingement mortality is defined by the 

following equation: 

For each calendar month, the facility 

would calculate the arithmetic average 

of the percentage impingement 

mortalities observed during each of the 

sampling events. For example, if a 

facility conducted four sampling events 

in December, it would calculate the 

monthly average from the weekly 

values. If a facility’s calculated monthly 

average is less than the monthly average 

limitation (31%), then it would be in 

compliance that month. To demonstrate 

compliance with the annual average 

limit, the facility would calculate the 

arithmetic average of all of its sampling 

events during the year. If the facility’s 

calculated annual average percentage 

impingement mortality is less than the 

annual average limitation, then it would 

be in compliance. 

EPA envisions that the permitting 

authority would review and approve the 

Impingement Mortality Reduction Plan 

including the frequency and duration of 

monitoring, the monitoring location, the 

organisms to be monitored, and the 

method in which naturally moribund 

organisms would be identified and 

taken into account. In establishing the 

monitoring requirements, EPA expects 

facilities and permitting authorities 

would consider whether data collection 

should cover the entire daily and (where 

appropriate) tidal cycles. Typically, 

facilities have collected impingement 

samples continuously for 6 or 8 hours, 

and repeated this cycle to cover an 

entire 24-hour period. Stratifying 

collection in this manner allows an 

analysis of the diel variation exhibited 

by many aquatic organisms. EPA 

expects that facilities would continue to 

conduct sampling in such a manner to 

account for diel variations, where 

appropriate. EPA also expects the plan 

would ensure that sampling occurs 

during periods of representative flow 

and not during periods of non-peak flow 

or scheduled outages. The sampling 

plan would cover all five years of the 

permit term. 

EPA is not proposing a list of the 

species to be monitored due to the sitespecific nature of the biological 

organisms impacted by an intake 

structure. Rather, EPA is proposing that 

a facility provide data on the 

composition of all species in its 

waterbody as part of its NPDES permit 

application (information from the 

source water baseline characterization 

data required at § 122.21(r)(4) and 

impingement plan at § 125.95(b)) to help 

inform the Director’s determination of 

the species that would be monitored for 

compliance with the proposed 

impingement mortality limitations. In 

addition, the permitting authority may 

impose additional monitoring 

requirements such as consideration of 

threatened or endangered species, as 

appropriate. EPA is also not including 

provisions for reducing the monitoring 

frequency in the future; given that the 

source waterbody may change over time 

(including hosting different or increased 

numbers of individuals or species), EPA 

believes that weekly monitoring at a 

minimum is appropriate. 

The ideal point to measure 

impingement mortality is the location 

where organisms are returned to the 

waterbody. However, for ease of 

sampling and access, EPA envisions 

most facilities would collect samples 

from the fish return system(s) at some 

point prior to the fish return discharge 

point.102 Based on the studies in EPA’s 

database, EPA envisions facilities would 

either (1) divert some or all of the flow 

from the fish return into a fish 

collection and holding area or (2) place 

a net or debris basket fitted with 3/8’’ 

mesh spacing in the fish return and 

collect and transfer the retained 

organisms to a holding tank. Facilities 

would handle the organisms in the 

collection device as little as possible 

and transfer them to a holding area with 

conditions as close as practicable to the 

source water. Facilities would count the 

number of living organisms in the 

holding area and subsequently hold the 

sample using proper technique 103 to 

maintain the health of the collected 

organisms.104 At a time period of 48 

hours after the initial collection, the 

facility would count the number of dead 

organisms. The facility would then 

determine the percentage of organisms 

that died after 48 hours in comparison 

to the total number of living organisms 

measured initially. Any organisms not 

collected by the fish handling and 

return system, such as organisms in the 

carryover of a traveling screen or 

organisms collected by a high pressure 

wash and sent to debris bins, would be 

counted as 100% mortality. Naturally 

moribund organisms would be excluded 

from the calculation. The facility would 

keep records of this information and 

subsequently compare its result to 

today’s proposed impingement 

mortality limitations. 

EPA requests comment on all aspects 

of these monitoring requirements. In 

particular, EPA requests comment on 

whether EPA should specific minimum 

sampling frequencies or leave this 

determination to the Director. EPA also 

requests comment on methods for 

evaluating latent mortality effects 

resulting from impingement. 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. 

In the majority of recent studies, 48 

hours appears to be the standard 

holding time. EPA specifically requests 

comment and supporting data on 

whether it should: Specifically establish 

48 hours after initial impingement as 

the time at which to monitor 

impingement mortality; allow a range 

such as 24 to 48 hours; establish 24 

hours as the standard holding time; or 

adopt some other technique for 

standardizing results. EPA also requests 

comment on whether survival under 

monitored holding conditions as 

discussed above is reflective of survival 

in the wild and thus an appropriate 

measure of the impingement mortality 

achieved by the facility. 

As explained in Section VI, the 

impingement mortality restrictions 

proposed today are based on the 


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105See section 3 for a discussion of how EPA has 

changed its view of screen mesh size. EPA 

recognizes that fine mesh screens may simply 

‘‘convert’’ smaller organisms that previously would 

have passed through the screen to impinged 

organisms. 

106EPA’s analysis of impingement survival rates 

is based on data from facilities with coarse mesh 

screens; these limits may be applied differently at 

facilities with smaller mesh size. Therefore, these 

limits do not provide a disincentive to facilities 

from using finer-meshed screens (i.e., screens with 

a mesh opening smaller than 3/8’’) on their traveling 

screens. As long as the organisms that are large 

enough to have been impinged upon a coarse mesh 

screen achieve the required survival rates, the 

facility would be considered to meet the 

impingement mortality requirements. 

operation of a modified coarse mesh 

traveling screen with a fish return. 

Because EPA wants to ensure that a 

facility’s monitoring plan is consistent 

with the technical basis for today’s 

restrictions, EPA is proposing to require 

facilities to monitor impingement 

mortality using a sample that has been 

passed through a sieve or net with a 3⁄8’’ 

mesh size, so that only organisms that 

do not pass through this mesh size are 

counted.105 In doing so, facilities would 

only retain (and therefore count) 

organisms that would have been 

impinged on a coarse mesh screen, 

which was the technological basis used 

for developing the proposed 

impingement mortality limits.106

Facilities could similarly 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 fine-mesh screen or diverts 

the flow directly to a sampling bay 

would only need to count organisms 

that would remain if the flow passed 

through a net, screen, or debris basket 

fitted with 3/8’’ mesh spacing. EPA 

further believes the IM restrictions 

could be applied to other screen-based 

fish protection technologies, and allows 

for future better performing 

technologies. EPA solicits comment on 

this approach to measuring 

impingement mortality. EPA 

specifically solicits comment on ways to 

ensure that the procedures used to 

collect and analyze samples do not 

inadvertently lead to greater mortality 

than would occur among organisms that 

were returned to the water body without 

being sampled. 

If the Director has approved a plan for 

compliance with the velocity 

requirements specified in § 125.94(b)(2) 

and the facility has documented a 

maximum design intake flow for the 

intake equal to or less than 0.5 feet per 

second, there are no compliance 

monitoring requirements. If the facility 

cannot document a design intake flow 

for the intake equal to or less than 0.5 

feet per second under all conditions, 

including during minimum ambient 

source water surface elevations (based 

on the Director’s judgment using 

hydrological data) and maximum head 

loss across the screens, the permit must 

require compliance monitoring for 

intake velocity to demonstrate the 

intake velocity is consistent with the 

requirements of § 125.94(b)(2). The 

frequency of monitoring would be no 

less than twice per week. In this 

circumstance facilities would not be 

subject to the impingement mortality 

monitoring requirements otherwise 

specified in § 125.96(a)(1) and (2). EPA 

requests comment on whether it should 

specify a minimum frequency for intake 

velocity monitoring or leave this 

determination to the Director. 

EPA notes the proposed rule does not 

specify 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 is deemed to meet 

this impingement mortality standard. 

This is because the largest facilities with 

closed cycle cooling still have the 

potential to withdraw 100 MGD or more 

in makeup water. EPA’s record shows 

virtually all facilities with wet cooling 

towers have a maximum intake velocity 

of 0.5 feet per second. EPA expects a 

facility that operates a cooling tower 

would be able to demonstrate the 

maximum design intake velocity does 

exceed 0.5 feet per second, and the 

proposed rule already provides that 

such facilities do not have any 

additional monitoring requirements for 

impingement mortality. 

2. Monitoring Requirements for 

Entrainment Mortality 

Existing Facilities 

Whenever the Director is establishing 

entrainment control, monitoring 

requirements must also be developed. 

As proposed, the permit application 

studies at § 122.21(r) would be required 

for each permit renewal. EPA expects 

the Director would use these studies, 

including the Entrainment 

Characterization Study at § 122.21 (r)(9), 

as a basis for any additional monitoring 

requirements for entrainment mortality. 

New Units at Existing Facilities 

Under § 125.96(c), existing facilities 

with new units would be required to 

conduct compliance monitoring to 

demonstrate flow reductions consistent 

with the requirements of § 125.94(d)(1) 

and (2), or equivalent I&E reductions. 

For facilities required to demonstrate 

flow reductions consistent with the 

requirements of § 125.94(d)(1), the 

frequency of monitoring would be no 

less than once per week and would be 

representative of normal operating 

conditions. Flow monitoring would 

include measuring cooling water 

withdrawals, make-up water, and 

blowdown volume. The Director may 

require additional monitoring necessary 

to demonstrate compliance with both 

§ 125.94(d) as well as any more stringent 

standards under § 125.94(f). 

To meet requirements under 

§ 125.94(d)(1), EPA expects facilities 

would first measure AIF in order to 

establish a site-specific baseline prior to 

installing any new technologies or 

employing new operational measures. 

EPA has defined AIF as the average 

volume of water withdrawals on an 

annual basis over the past three 

calendar years (see § 125.92). Facilities 

would then conduct flow monitoring 

which would include measuring cooling 

water withdrawals, make-up water, and 

blowdown volume. The Director may 

require additional monitoring necessary 

to demonstrate compliance with 

§ 125.94(d). These flows would be used 

to document the facility has minimized 

make-up and blowdown flows. 

To meet requirements under 

§ 125.94(d)(2), facilities would again 

measure AIF in order to establish a sitespecific baseline prior to installing any 

new technologies or employing new 

operational measures. The facility 

would also measure the density of 

entrainable organisms (ED) at a 

proximity to the intake that is 

representative of the entrainable 

organisms present in the absence of the 

cooling water intake structure and is 

representative of annual average 

abundance. For the purpose of today’s 

rule, entrainable is defined as any 

organism that passes through a 3⁄8 inch 

sieve. As discussed in Section VI, this 

would avoid any confusion as to which 

organisms would be subject to which 

standards. Facilities would also monitor 

the latent entrainment mortality in front 

of the intake structure. Entrainable 

organisms passing the cooling water 

intake structure would be counted as 

100 percent entrainment mortality 

unless the facility demonstrates to the 

approval of the Director that the 

mortality for each species of concern is 

less than 100 percent. Samples would 

be collected at a minimum to monitor 

each species of concern or other species 

as required by the Director over a 

24-hour period. Samples would be 

collected no less than biweekly during 

the primary period of reproduction, 

larval recruitment, and peak abundance 

identified during the source water 

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107 § 125.86 specifies ‘‘reduced both impingement 

mortality and entrainment of all life stages of fish 

and shellfish to 90 percent or greater of the 

reduction that would be achieved through 

§ 125.84(b)(1) and (2).’’ 

baseline characterization required under 

§ 122.21(r)(4). Samples would be 

representative of the cooling water 

intake when the structure is in 

operation. In addition, sufficient 

samples would be collected to allow for 

calculation of annual average 

entrainment levels. The sampling would 

measure the total count of entrainable 

organisms or density of organisms, 

unless the Director approves of a 

different metric for such measurements. 

In addition, facilities would monitor the 

AIF for each intake. The AIF would be 

measured at the same time as the 

samples of entrainable organisms are 

collected. 

The following equation illustrates 

how to calculate a baseline level of 

entrainment (EB): 

EB = ED × AIF 

Performance commensurate with a 

closed-cycle cooling system (EBTA) can 

therefore be determined by reducing EB

by the percentage of flow reduced 

through the use of a closed-cycle 

cooling system. For example, a facility 

withdrawing makeup water from a 

freshwater source (as described above, 

would achieve a reduction of 97.5 

percent) would calculate its 

performance as: 

EBTA = (EB) × (100¥97.5) ÷ 100 

The resulting value, EBTA, is the 

required level of entrainment 

performance (as measured by 

entrainment mortality). The facility 

could implement any combination of 

flow reduction, technologies, and 

operational measures to meet the 

required level of entrainment 

performance. For example, a facility 

withdraws 200 MGD AIF from a 

freshwater river. The annual average 

entrainment density in the proximity of 

the intake structure is 6,400 organisms 

per 100 cubic meters withdrawn. 

EB = ED × AIF 

6,400 organisms/100m3 × (100m3/26,417 

gallons) × 200,000,000 gallons per 

day = 48 million organisms per day 

The maximum entrainment mortality 

for a closed-cycle cooling system is thus 

EBTA = (EB) × (100¥97.5) ÷ 100 = (48 × 

106 organisms per day) × 

(100¥97.5) ÷ 100 = 1.2 × 106

organisms. 

The minimum required level of 

performance for demonstrating 

entrainment mortality at a comparable 

level (EC) to a closed-cycle cooling 

system is the level corresponding to 90 

percent 107 of the reduction that a 

facility with a closed-cycle cooling 

system could achieve: 

EC = (EB) × (100 ¥ (97.5 × .9)) ÷ 100 = 

(48 × 106 organisms per day) × (100 

¥ (97.5 × .9)) ÷ 100 = 5.9 × 106

organisms. 

The Director may require additional 

monitoring necessary to demonstrate 

compliance with both § 125.94(d) as 

well as any more stringent standards 

under § 125.94(f). 

EPA requests comment on all aspects 

of these monitoring requirements. EPA 

specifically requests comment on 

whether it should specify minimum 

monitoring frequencies or leave this to 

the determination of the Director. 

Visual or Remote Inspections—All 

Existing facilities 

All facilities would either conduct 

visual inspections or employ remote 

monitoring devices during the period 

the cooling water intake structure is in 

operation. The facility would conduct 

such inspections 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. EPA is 

aware that for some facilities, this 

requirement could pose a feasibility 

challenge (i.e., ice cover during the 

winter season, inability of divers to see 

through more than a few inches of 

water, or certain intakes located in deep 

water during rough weather). The 

proposed rule therefore authorizes the 

Director to establish alternative 

procedures during periods of inclement 

weather. EPA solicits comment and data 

on this provision. EPA specifically 

requests comment on whether it should 

establish minimum frequencies for 

inspections, or leave this to the 

determination of the Director. 

G. What reports would I be required to 

submit? 

1. Status Reports 

Facilities that establish a compliance 

schedule (under § 125.93) would submit 

(at a minimum) quarterly status reports 

as to the progress of the facility towards 

meeting the terms of the compliance 

schedule and the applicable limits. 

These reports may include updates on 

biological monitoring, technology 

testing results, construction schedules, 

or other appropriate topics. 

2. Monitoring Reports 

As described above, facilities would 

have ongoing impingement mortality 

monitoring requirements; some facilities 

would also have entrainment mortality 

monitoring requirements. The proposed 

monitoring activities are similar to 

monitoring required for other effluent 

discharges already included in NPDES 

permits. Facilities would be required to 

include impingement mortality 

monitoring reports with their Discharge 

Monitoring Reports (DMRs) (or 

equivalent) and their permit annual 

report to the Director. As described at 

§ 125.97, those reports would be 

required to include: 

• The compliance measurement 

location; 

• Identification of species of concern; 

• Counts and percentage mortality of 

organisms sampled, as well as the 

average for all measurements taken 

during the preceding 12-month period 

(i.e., a 12-month ‘‘rolling’’ average); 

• Time period for evaluating latent 

mortality effects; 

• Intake velocity measurements, as 

appropriate, to determine compliance 

with the design intake velocity 

requirement of 0.5 fps or less; and 

• Any other monitoring requirements 

specified in the permit. 

The Director would evaluate these 

reports for compliance with monthly 

and annual impingement mortality 

limits, velocity limits, and other permit 

requirements where appropriate. 

For facilities that require entrainment 

mortality controls, the Director would 

require ongoing entrainment mortality 

flow monitoring. Facilities would be 

required to include entrainment 

mortality flow monitoring reports with 

their DMRs (or equivalent) and their 

annual report to the Director. Those 

reports would be required to include: 

• The compliance measurement 

location; 

• A description of the flow 

monitoring procedure; 

• Documentation of flow reductions; 

and 

• Any other monitoring requirements 

specified in the permit. 

The Director would evaluate these 

reports for compliance with monthly 

entrainment mortality limits, flow 

reductions and flow monitoring, and 

permit requirements as required. 

3. Annual Certifications 

Today’s proposal would require a 

facility to submit an annual certification 

statement signed by the responsible 

corporate officer. This statement would 

indicate each technology is being 

maintained and operated as set forth in 

its permit, or a justification to allow 

modification of the practices listed in 

the facility’s most recent annual 

certification. If the Director has 

approved impingement mortality or 

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entrainment mortality compliance 

alternatives, the statement would 

specify the information submitted in the 

most recent annual certification is still 

valid and appropriate, or provide a 

justification to allow modification of the 

practices listed in the most recent 

annual certification. For example, the 

statement would include data and 

information documenting compliance 

with the requirement in § 124.94(d)(1) 

that flow commensurate with a closedcycle recirculating system is met. If the 

Director has approved the IM maximum 

intake velocity compliance alternative 

and the facility cannot document a 

design intake velocity for the intake 

equal to or less than 0.5 feet per second, 

the statement would include data and 

information documenting compliance 

with the maximum allowable intake 

velocity. 

If the information contained in the 

previous year’s annual certification is 

still applicable, the statement would 

simply state as such and, along with any 

applicable data submission 

requirements specified in this section, 

would constitute the annual 

certification. However, if the facility has 

substantially modified its operation of 

any unit that impacts cooling water 

withdrawals or operation of cooling 

water intake structures, it would submit 

revisions to the information required in 

the permit application. 

H. What records would I be required to 

keep? 

As described at § 125.97(d), facilities 

would be required to keep all 

application, status, monitoring, and 

annual reports and related supporting 

information and materials for a 

minimum of 5 years, but facilities may 

wish to keep records for a longer period 

to maintain a complete regulatory 

history of the facility. For example, 

existing source water biological studies 

submitted with a facility’s permit 

application may contain data that has 

been collected within the past 10 years. 

The proposed rule requires that records 

be kept from the preceding permit term 

when the Director has approved a 

request for reduced information 

collection in the permit application. The 

Director may establish additional record 

keeping requirements in the permit, 

such as additional records documenting 

the EM determination and related 

compliance monitoring or data 

collection. 

I. Are there other Federal statutes that 

could be incorporated into a facility’s 

permit? 

EPA’s NPDES permitting regulations 

at § 122.49 contain a list of Federal laws 

that might apply to Federally-issued 

NPDES permits. These include the Wild 

and Scenic Rivers Act, 16 U.S.C. 1273 

et seq.; the National Historic 

Preservation Act of 1966, 16 U.S.C. 470 

et seq.; the Endangered Species Act, 16 

U.S.C. 1531 et seq.; the Coastal Zone 

Management Act, 16 U.S.C. 1451 et seq.; 

and the National Environmental Policy 

Act, 42 U.S.C. 4321 et seq. See § 122.49 

for a brief description of each of these 

laws. In addition, the provisions of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, 16 

U.S.C. 1801 et seq., relating to essential 

fish habitat might be relevant. Nothing 

in this proposal would authorize 

activities that are not in compliance 

with these or other applicable Federal 

laws (e.g., Marine Mammal Protection 

Act, 16 U.S.C. 1361 et seq., and 

Migratory Bird Treaty Act, 16 U.S.C. 703 

et seq.). 

J. What is the Director’s role under 

today’s proposal? 

Under today’s proposed rule, the 

Director would need to review all 

materials submitted by an existing 

facility with its permit application each 

permit term to determine appropriate 

NPDES permit requirements for 

impingement mortality, entrainment 

mortality for new units at existing 

facilities, and site-specific entrainment 

mortality, as necessary. The Director is 

encouraged to provide any comments 

expeditiously on submitted materials so 

the facility can make responsive 

modifications to its information 

gathering activities. More specific 

responsibilities are described below: 

(1) The Director would review 

materials to determine compliance with 

the applicable requirements. The 

proposed rule also provides some 

discretion to the Director to waive the 

submittal requirements under certain 

conditions. First, if the circumstances at 

the facility have not changed after a five 

year permit cycle, the Director can 

reduce the submission requirements. 

Second, if the Director has made a BTA 

determination prior to the effective date 

of the rule, and substantially the same 

information was already submitted and 

considered by the Director in making 

that determination, the Director can 

reduce the submission requirements. To 

clarify further, EPA has included a 

‘‘transition’’ provision in the submission 

requirements of today’s proposed rule 

that makes it clear that for any facility 

that has submitted a permit application 

before the effective date of the 

regulation, the Director can select the 

best approach to permit development 

and implementation. These provisions 

are further intended to avoid any 

unnecessary delay in recently issued 

permits. EPA expects facilities would 

continue with any monitoring 

requirements, study requirements, and 

compliance schedules in recently issued 

permits. 

(2) If the Director establishes an 

alternate schedule under § 125.93, the 

Director would establish a schedule that 

is as expeditious as possible, but does 

not extend beyond the dates specified in 

§ 125.93. In establishing the schedule, 

the Director is encouraged to consider 

the extent to which those technologies 

proposed to be implemented to meet the 

requirements of § 125.95(c) and/or (d) 

will be used, or may otherwise affect a 

facility’s choice of technology(ies), to 

meet the requirements of § 125.95(b). 

Impacts of thermal discharges, along 

with other stressors, may be a relevant 

consideration when assessing benefits of 

technologies to reduce impacts of 

cooling water intakes or discharges. See 

EEA for more information. The Director 

is also encouraged to consider energy 

reliability and grid requirements when 

establishing a schedule for electric 

power generating facilities. The Director 

may consult with local and regional 

electric power agencies when 

establishing a schedule for electric 

power generating facilities. The Director 

may determine that extenuating 

circumstances (e.g., lengthy scheduled 

outages, future production schedules) 

warrant establishing a different 

compliance date for any manufacturing 

facility. 

(3) The Director would review and 

approve the species of fish and shellfish 

identified as species of concern. 

(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. 

(5) The Director would review the 

permit application materials and studies 

submitted under § 122.21(r) on a caseby-case basis and determine which 

entrainment requirements are necessary. 

(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 

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be identified. EPA solicits comment on 

whether the Director should review, but 

not formally approve, the identified 

plans. 

(7) The Director would issue a written 

explanation for the BTA determination 

and make this determination, and any 

other information submitted by third 

parties, available along with the draft 

permit for public review. This 

determination is discussed in more 

detail in Section VI above. In addition, 

the following discussion guides the 

Director when considering cost-benefit 

analysis for permit determinations. 

Social Cost-Benefit Analysis for Permit 

Determinations 

In deciding whether and which 

technology to require a permittee to 

install to address entrainment mortality, 

the Director may undertake an 

evaluation of social costs and benefits of 

implementing such requirements. This 

analysis would be based on the 

information submitted by the applicant, 

supplemented by information submitted 

by third parties, and additional 

information as determined appropriate 

by the Director. EPA recognizes the 

resource limitations faced by permitting 

authorities and does not generally 

expect that the Director would develop 

additional information on which to base 

the evaluation of social benefits and 

costs, though the Director may opt to do 

so. This analysis should evaluate 

benefits and costs from the perspective 

of society as a whole. 

A number of cost elements should be 

accounted for in assessing the social 

cost of entrainment technology 

implementation. These are summarized 

below. 

• Technology installation cost. These 

peer reviewed engineering cost 

estimates of the physical construction of 

candidate entrainment technologies at 

the facility are required in section 

122.21(r)(10). These costs would be 

provided by the applicant under 

122.21(r)(10). 

• Installation downtime cost. 

Installation of closed cycle cooling 

systems will often require generating 

facilities to take additional downtime 

beyond ordinary annual maintenance 

downtime. An estimate of downtime 

cost to the facility is required under 

122.21(r)(10). Downtime costs include 

the value of lost production minus any 

variable cost savings, as well as any 

other costs to the facility associated 

with downtime (shutdown and startup 

routines, special maintenance protocols, 

etc) minus any savings associated with 

downtime. 

• Energy penalty cost. Operation of 

closed cycle cooling systems generally 

imposes an energy penalty, which 

means additional energy input is 

required to generate the same quantity 

of electricity otherwise available for sale 

to end-use consumers. Again, an 

assessment of these costs to the facility 

would be determined under the section 

122.21(r)(10) demonstration. The 

appropriate cost measure is the cost of 

additional production costs to the 

facility, if the permittee’s facility has 

sufficient capacity to make up the lost 

electricity production, or the net 

revenue loss to the permittee, if the 

permittee’s facility cannot make up the 

lost electricity production. 

• Operation and maintenance costs 

for the entrainment technology 

equipment. The cost of energy to 

operate the entrainment technology for 

electric generators would be accounted 

for in the assessment of energy penalty 

costs and should not reappear in the 

O&M costs. These cost which would be 

estimated as part of the 122.21(r)(10) 

assessment would enter the social cost 

framework unchanged. 

• Other administrative expenses— 

e.g., additional permitting and/or 

reporting expenses. Being a social cost 

concept the estimate must include not 

only the costs to the facility but those 

expected to be incurred by the 

permitting authority as well. Permitting 

costs would generally be lower if a 

facility opts to install a closed cycle 

cooling system without going through 

the BTA site-specific determination, as 

this allows the facility to minimize the 

amount of permit application 

information submitted. 

For the assessment of social cost, the 

cost elements outlined above would 

typically be accounted for on a real cost 

basis—that is, pre-tax and excluding the 

effects of inflation. Costs are tallied over 

an appropriate timeframe, which will 

typically be the expected useful life of 

the technology installation or the 

remaining life of the facility, if less. 

Costs should be calculated as both net 

present value and annualized values, 

using an appropriate discount rate. The 

applicant should document the basis for 

the discount rate chosen. 

In assessing the benefits of 

entrainment technology installation, the 

Director would assess the value to 

society from the reductions in I&E 

mortality that would result from 

installation of a closed cycle cooling 

system or alternative entrainment 

technology. All benefits, including 

quantified and non-quantified benefits, 

should be considered in this 

assessment. The benefits assessment 

would typically look at a range of 

potential benefit mechanisms, including 

increased harvest for commercial 

fisheries, increased use values for 

recreational fisheries, and non-use 

values (existence and bequest values). 

The latter may be difficult to quantify 

and/or monetize. If appropriate data are 

available from stated preference studies 

or other sources that can be applied to 

the site being evaluated, these should be 

used to monetize non-use values. 

Otherwise, non-use values should be 

evaluated qualitatively. Quantitative 

analysis, even in the absence of 

monetization, can be quite useful in 

evaluating non-use benefits. For 

example, quantifying impacts to forage 

and T&E species, and other indirect 

impacts on the aquatic environment, 

may allow the permitting authority to 

derive a more complete understanding 

of benefits. 

Quantifying and valuing the benefit 

categories listed above involves 

significant challenges, as described in 

the Environmental and Economic 

Benefits Analysis report. For example, 

assessing the productivity and value of 

commercial fisheries involves 

estimating the expected increases in 

commercial yield of economically 

valued species over time as a result of 

reduced I&E mortality, and valuing 

these at market prices minus any 

incremental production costs associated 

with the incremental catch. Similarly, 

the assessment of recreational use 

benefits involves estimating the 

improvements in recreational fishing 

opportunities resulting from reduced 

I&E mortality, and assigning a value to 

these improvements. The assignment of 

value is based on the estimated 

population profile—in particular, 

number and proximity to affected water 

resources—of recreational users, the 

availability of alternative competing 

water resources for recreational usage, 

and the resulting estimated change in 

demand for use and value of the affected 

water resources based on reduced I&E 

mortality and increased recreational 

fishing performance. EPA acknowledges 

this may be hard to do on a site-specific 

basis, and solicits comment on tools 

EPA could consider producing to aid 

this process. 

Non-use benefits, which encompass 

existence and bequest values, include 

impacts in such areas as population 

resilience and support, nutrient cycling, 

natural species assemblages, and 

ecosystem health and integrity. These 

may be assessed on the basis of benefits 

transfer analysis (using findings from 

prior analyses involving a similar study 

context) or by performance of a peer 

reviewed stated preference survey to 

assess the value assigned for the 

environmental improvements resulting 

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22262 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

use values include improving the 

survival probability of a threatened or 

endangered species if present in the 

vicinity of the facility. Benefits may also 

need to be assessed beyond the vicinity 

of the facility’s intake if migratory 

species are affected by the intake. 

Residual impacts of thermal discharges 

may also be appropriate to consider in 

the social benefits calculation. 

In much the same way as described 

for the social cost assessment, social 

benefits are tallied on a year-by-year 

basis over the expected performance life 

of the compliance technology. If 

possible, this tallying should account 

for the ‘‘phase-in’’ of benefits (e.g., 

benefits may build up over time as the 

I&E mortality reductions affect 

commercial fisheries productivity) and 

‘‘phase-down’’ of benefits at the end of 

the technology equipment’s 

performance life (e.g., the I&E mortality 

reduction benefits may continue beyond 

the performance life of the compliance 

technology). Benefits are computed on a 

present value basis and annualized 

using an appropriate discount rate as 

described above. The same discount rate 

should be used for benefits and costs. 

Often, it is appropriate to calculate 

benefits and costs using more than one 

discount rate. For example, for 

regulatory impact analysis, the Office of 

Management and Budget recommends 

that costs and benefits be annualized 

using both a 7% and a 3% rate. 

However, comparisons between specific 

benefit and cost numbers should always 

involve values computed using the same 

rate. 

The resulting estimates of social cost 

and benefits must be taken into account 

in reaching determinations on whether 

to require a permittee to install 

entrainment technology and the specific 

level of entrainment technology to be 

installed. The Director may reject an 

otherwise available technology as BTA 

standards for entrainment mortality 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. If all technologies 

considered have social costs not 

justified by the social benefits, or have 

unacceptable adverse impacts that 

cannot be mitigated, the Director may 

determine that no additional control 

requirements are necessary beyond what 

the facility is already doing. The 

director should document the basis for 

this determination and include it in the 

public notice for the draft permit. (8) 

The Director would review I&E 

mortality monitoring reports. EPA is 

shifting towards an electronic DMR 

system, and many of the IM and EM 

standards could be incorporated into the 

DMR itself, rather than requiring a 

separate report. EPA solicits comment 

on whether such reports should 

accompany monthly Discharge 

Monitoring Reports (DMRs). EPA 

expects the more detailed monitoring 

information would be submitted in 

annual reports and as part of the 

facility’s subsequent permit application 

submission. 

X. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under section 3(f)(1) of Executive 

Order (EO) 12866 (58 FR 51735, October 

4, 1993), this action is an ‘‘economically 

significant regulatory action’’ because it 

is likely to have an annual effect on the 

economy of $100 million or more. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

13563 (76 FR 3821, January 21, 2011) 

and any changes made in response to 

OMB recommendations have been 

documented in the docket for this 

action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is contained in Chapter 12 of 

the EA report. A copy of the analysis is 

available in the docket for this action 

and the analysis is briefly summarized 

here. 

Exhibit X–1 (drawn from Table 12–2 

of the EA) provides the results of the 

benefit-cost analysis. Placeholders for 

nonmonetized benefits are represented 

by B1, B2, B3, and B4 which are expected 

to be option specific in value. EPA’s 

analysis using a habitat equivalence 

approach (see EEBA, Chapter 9) suggests 

that B1, B2, B3, and B4 have the potential 

to be significant, though EPA does not 

have the same confidence in those 

estimates as in the monetized estimates, 

and is therefore using placeholders. 

EXHIBIT X–1—TOTAL ANNUALIZED BENEFITS AND COSTS OF THE REGULATORY OPTIONS

[Millions; 2009 $] a

Option Social costs b Benefits 

1. IM Everywhere ....................................................................................................................................................... $384 $18 + B1

2. IM Everywhere, EM for Facilities with DIF > 125 MGD ........................................................................................ 4,463 121 + B2

3. I&E Mortality Everywhere ...................................................................................................................................... 4,632 126 + B3

4. IM for Facilities with DIF > 50 MGD ...................................................................................................................... 327 17 + B4

aAll costs and benefits were annualized over 50 years and discounted using 3 percent rate. 

bTotal Social Costs include compliance costs to facilities and government administrative costs. Costs and benefits for Options 1, 2, and 4 do 

not include costs or benefits associated site-specific BTA determinations. In section VI.I, EPA presents several scenarios to illustrate potential 

costs associated with these determinations for Options 1 and 4. EPA believes the costs and benefits of these determinations could be substantial, and could be significantly larger than the costs and benefits shown for Options 1 and 4. For Option 2, only facilities with AIF < 125 MGD 

would be subject to site-specific BTA and additional costs and benefits for these facilities are likely to be small relative to the costs and benefits 

already estimated for this option. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 2060.05. 

Compliance with the applicable 

information collection requirements 

imposed under a final rule based on this 

proposal would be mandatory. Today’s 

proposed rule would require several 

distinct types of information collection 

as part of the NPDES permit application. 

In general, the information will be used 

to identify how a 316(b) existing facility 

would meet the impingement mortality 

and entrainment requirements. Today’s 

rule would also require other reporting 

and recordkeeping requirements to 

demonstrate and document compliance 

with the proposed requirements. 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22263 

The OMB previously approved 

information collection requirements 

contained in the 2004 Phase II final rule 

and assigned OMB control number 

2040–0257. The 2004 Phase II final rule 

required applicable facilities to perform 

several data-gathering activities as part 

of the permit renewal application 

process. It also required certain 

monitoring and reporting after permit 

issuance. The previously-approved 

information collection requirements 

included one-time burden associated 

with the initial permit application and 

those activities associated with 

monitoring and reporting once the 

permit was issued. The total average 

annual burden associated with the 2004 

Phase II rule information collection 

requirements for the entire Phase II 

industry was estimated at 1,700,392 

hours. The annual average reporting and 

record keeping burden associated with 

the 2004 Final Phase II rule for a 316(b) 

existing facility was estimated to be 

5,428 hours per respondent (i.e., total 

annual average burden of 1,595,786 

hours divided by an anticipated 294 

respondents). The Director’s reporting 

and record keeping burden for the 

review, oversight, and administration of 

the 2004 final Phase II rule was 

estimated to average 2,615 hours per 

respondent (i.e., a total annual average 

burden of 104,606 hours divided by an 

anticipated 40 States). 

Today’s proposal streamlines some 

aspects of the permit application and 

implementation process and would 

impose reduced information collection 

requirements in comparison to the 2004 

Phase II rule (for existing power plants 

with DIF > 50 MGD). For example, 

under the 2004 Phase II rule, facilities 

would have been required to submit a 

Technology Implementation and 

Operations Plan, which is not required 

as part of today’s proposed rule. Like 

the 2004 Phase II rule, today’s proposal 

would require facilities to collect and 

report impingement mortality 

compliance monitoring data. Under 

certain alternatives provided in today’s 

proposed rule, design documentation 

and flow data would be provided 

instead of biologically monitoring data. 

The information reporting requirements 

under today’s proposed compliance 

alternatives, described at § 125.95, 

include some additional requirements 

such as submission of an initial 

certification statement and annual 

certification statements thereafter, 

submission of monitoring reports along 

with DMRs, and submission of annual 

reports, as well as maintenance of 

various records. 

Facilities that were not part of Phase 

II would have additional reporting and 

recordkeeping requirements relative to 

the current BPJ permitting approach. 

EPA is currently preparing a revised ICR 

that will estimate the total burden of the 

proposed rule using the Phase II burden 

estimates as a starting point. These will 

be adjusted to account for differences in 

what is required under the proposed 

rule, as well as the extension of new 

requirements to Phase III facilities. EPA 

will announce in the Federal Register 

when this information has been placed 

in the docket for today’s rule and will 

allow a separate 60-day comment period 

on the proposed paperwork 

requirements, including the revised 

burden estimates. 

Burden is defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this rule, which 

includes this ICR, under Docket ID 

number EPA–HQ–OW–2008–0667. 

Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES

section at the beginning of this proposed 

rule for where to submit comments to 

EPA. Send comments to OMB at the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, 725 17th Street, NW., 

Washington, DC 20503, Attention: Desk 

Office for EPA. Since OMB is required 

to make a decision concerning the ICR 

between 30 and 60 days after April 20, 

2011, a comment to OMB is best assured 

of having its full effect if OMB receives 

it by May 20, 2011. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

1. Definition of Small Entities and 

Estimation of the Number of Small 

Entities Subject to Today’s Proposed 

Regulation 

For EPA’s assessment of the impact of 

today’s proposed rule on small entities, 

small entity is defined as either a: (1) A 

small business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. Federal or State 

entities owning in-scope facilities are 

not small entities. 

a. Electric Generators 

For assessing the impacts of today’s 

rule on small Electric Generator entities, 

small entity is defined in accordance 

with SBA criteria for identifying small, 

non-government entities in the electric 

power industry, as follows: 

• For non-government entities with 

electric power generation as a primary 

business, small entities are those with 

total annual electric output less than 4 

million MWh; small governments are 

those serving a population of less than 

50,000. 

• For entities with a primary business 

other than electric power generation, the 

relevant size criteria are based on 

revenue or number of employees by 

NAICS sector (see Exhibit X–2). 

EXHIBIT X–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR IN-SCOPE ELECTRIC GENERATORS WITH A

PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION 108

NAICS code NAICS description SBA size standard 

221112 .................... Fossil Fuel Electric Power Generation .................................................................. 4,000,000 MWh. 

221113 .................... Nuclear Electric Power Generation ....................................................................... 4,000,000 MWh. 

221119 .................... Other Electric Power Generation ........................................................................... 4,000,000 MWh. 

221122 .................... Electric Power Distribution ..................................................................................... 4,000,000 MWh. 

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22264 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

108Certain in-scope facilities are owned by 

entities whose primary business is not electric 

power generation. 

109The entity counts include entities owning 

known 316(b) Electric Generators and are not 

weighted estimates. 

EXHIBIT X–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR IN-SCOPE ELECTRIC GENERATORS WITH A

PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION 108—Continued 

NAICS code NAICS description SBA size standard 

221210 .................... Natural Gas Distribution ......................................................................................... 500 Employees. 

238210 .................... Electrical Contractors ............................................................................................. $14,000,000 Revenue. 

331111 .................... Iron and Steel Mills ................................................................................................ 1,000 Employees. 

331315 .................... Aluminum Sheet, Plate, and Foil Manufacturing ................................................... 750 Employees. 

523910 .................... Miscellaneous Intermediation ................................................................................ $7,000,000 Revenue. 

486210 .................... Pipeline Transportation of Natural Gas ................................................................. $7,000,000 Revenue. 

523920 .................... Portfolio Management ............................................................................................ $7,000,000 Revenue. 

523930 .................... Investment Advice .................................................................................................. $7,000,000 Revenue. 

524126 .................... Direct Property and Casualty Insurance Carriers .................................................. 1,500 Employees. 

525990 .................... Other Financial Vehicles ........................................................................................ $7,000,000 Revenue. 

525910 .................... Open-End Investment Funds ................................................................................. $7,000,000 Revenue. 

541990 .................... All Other Professional, Scientific, and Technical Services .................................... $7,000,000 Revenue. 

551112 .................... Offices of Other Holding Companies ..................................................................... $7,000,000 Revenue. 

561499 .................... All Other Business Support Services .................................................................... $7,000,000 Revenue. 

562212 .................... Solid Waste Landfill ............................................................................................... $12,500,000 Revenue. 

562219 .................... Other Nonhazardous Waste Treatment and Disposal .......................................... $12,500,000 Revenue. 

562920 .................... Materials Recovery Facilities ................................................................................. $12,500,000 Revenue. 

611310 .................... Colleges, Universities, and Professional Schools ................................................. $7,000,000 Revenue. 

For this analysis, EPA identified the 

domestic parent entity of each electric 

generating facility subject to today’s 

proposed rule (for a discussion on 

determination of parent entities of inscope Electric Generators see Chapter 5 

of the EA report). To determine whether 

these entities are small entities based on 

the size criteria outlined above, EPA 

compared the relevant measure for the 

identified parent entities to the 

appropriate SBA size criterion. 

From this analysis, EPA estimates that 

33 small entities (out of a total of 143 

entities that own in-scope Electric 

Generators) own Electric Generators that 

would be subject to today’s proposed 

rule, representing 1.6 percent of total 

estimated small entities in the electric 

power industry (see Exhibit X–3). 

Municipalities make up the largest 

number of small entities owning inscope facilities (17 out of 33); these 

small entities represent 1.8 percent of 

all small entities in that category. Small 

entities owning in-scope facilities as a 

percentage of total small entities range, 

by ownership category, from 0.9 percent 

for rural electric cooperatives and other 

political subdivisions, to 10.9 percent 

for the investor-owned utilities.109

EXHIBIT X–3—NUMBER OF SMALL ENTITIES OWNING IN-SCOPE ELECTRIC GENERATING FACILITIES AS A PERCENTAGE OF

THE TOTAL NUMBER OF SMALL ENTITIES IN THE INDUSTRY, BY OWNERSHIP TYPE

Ownership type 

Total number of 

small entities in 

the industry a

Small entities owning in-scope facilities 

Number of 

in-scope entities b

Small in-scope 

entities as 

percentage of all 

in-scope entities 

in the industry 

Investor-Owned Utilities ......................................................................................... 18 2 10 .9 

Nonutilities ............................................................................................................. 130 5 3 .8 

Rural Electric Cooperatives ................................................................................... 848 8 0 .9 

Municipality ............................................................................................................ 968 17 1 .8 

Other Political Subdivision ..................................................................................... 113 1 0 .9 

Federal ................................................................................................................... 0 0 0

State ....................................................................................................................... 0 0 0 

All Entity Types ...................................................................................................... 2,078 33 1 .6 

aState and Federal entities are considered large. 

bThe entity counts include entities owning known 316(b) Electric Generators and are not weighted estimates. 

b. Manufacturers 

For purposes of assessing the impacts 

of today’s rule on small Manufacturers, 

small entity is defined in accordance 

with SBA criteria. Exhibit X–4 lists the 

SBA size threshold guidelines for 

entities owning Manufacturers facilities. 

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Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 22265 

EXHIBIT X–4—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR IN-SCOPE ENTITIES IN MANUFACTURERS SECTORS

NAICS Code NAICS Description SBA Size standard 

111930 ......................... Sugarcane Farming ..................................................................................................................... $750,000 in Revenue 

113110 ......................... Timber Tract Operations ............................................................................................................. $7,000,000 in Revenue 

211111 ......................... Crude Petroleum and Natural Gas Extraction ............................................................................ 500 Employees 

212210 ......................... Iron Ore Mining ............................................................................................................................ 500 Employees 

212391 ......................... Potash, Soda, and Borate Mineral Mining .................................................................................. 500 Employees 

221119 ......................... Other Electric Power Generation ................................................................................................ 4,000,000 MWh of 

Electric Generation 

311221 ......................... Wet Corn Milling .......................................................................................................................... 750 Employees 

311311 ......................... Sugarcane Mills ........................................................................................................................... 500 Employees 

311312 ......................... Cane Sugar Refining ................................................................................................................... 750 Employees 

311313 ......................... Beet Sugar Manufacturing ........................................................................................................... 750 Employees 

311942 ......................... Spice and Extract Manufacturing ................................................................................................ 500 Employees 

313210 ......................... Broadwoven Fabric Mills ............................................................................................................. 1,000 Employees 

321113 ......................... Sawmills ....................................................................................................................................... 500 Employees 

322121 ......................... Paper (except Newsprint) Mills ................................................................................................... 750 Employees 

322122 ......................... Newsprint Mills ............................................................................................................................ 750 Employees 

322130 ......................... Paperboard Mills .......................................................................................................................... 750 Employees 

322211 ......................... Corrugated and Solid Fiber Box Manufacturing .......................................................................... 500 Employees 

322222 ......................... Coated and Laminated Paper Manufacturing ............................................................................. 500 Employees 

322291 ......................... Sanitary Paper Product Manufacturing ....................................................................................... 500 Employees 

324110 ......................... Petroleum Refineries ................................................................................................................... 1,500 Employees 

324191 ......................... Petroleum Lubricating Oil and Grease Manufacturing ................................................................ 500 Employees 

325120 ......................... Industrial Gas Manufacturing ...................................................................................................... 1,000 Employees 

325181 ......................... Alkalis and Chlorine Manufacturing ............................................................................................. 1,000 Employees 

325188 ......................... All Other Basic Inorganic Chemical Manufacturing .................................................................... 1,000 Employees 

325199 ......................... All Other Basic Organic Chemical Manufacturing ....................................................................... 1,000 Employees 

325211 ......................... Plastics Material and Resin Manufacturing ................................................................................. 750 Employees 

325311 ......................... Nitrogenous Fertilizer Manufacturing .......................................................................................... 1,000 Employees 

325320 ......................... Pesticide and Other Agricultural Chemical Manufacturing ......................................................... 500 Employees 

325412 ......................... Pharmaceutical Preparation Manufacturing ................................................................................ 750 Employees 

325510 ......................... Paint and Coating Manufacturing ................................................................................................ 500 Employees 

325992 ......................... Photographic Film, Paper, Plate and Chemical Manufacturing .................................................. 500 Employees 

325998 ......................... All Other Miscellaneous Chemical Product and Preparation Manufacturing .............................. 500 Employees 

331111 ......................... Iron and Steel Mills ...................................................................................................................... 1,000 Employees 

331112 ......................... Electrometallurgical Ferroalloy Product Manufacturing ............................................................... 750 Employees 

331210 ......................... Iron and Steel Pipe and Tube Manufacturing from Purchased Steel ......................................... 1,000 Employees 

331221 ......................... Rolled Steel Shape Manufacturing .............................................................................................. 1,000 Employees 

331222 ......................... Steel Wire Drawing ...................................................................................................................... 1,000 Employees 

331312 ......................... Primary Aluminum Production ..................................................................................................... 1,000 Employees 

331315 ......................... Aluminum Sheet, Plate and Foil Manufacturing .......................................................................... 750 Employees 

332312 ......................... Fabricated Structural Metal Manufacturing ................................................................................. 500 Employees 

337910 ......................... Mattress Manufacturing ............................................................................................................... 500 Employees 

339999 ......................... All Other Miscellaneous Manufacturing ....................................................................................... 500 Employees 

423310 ......................... Lumber, Plywood, Millwork, and Wood Panel Merchant Wholesalers ....................................... 100 Employees 

423930 ......................... Recyclable Material Merchant Wholesalers ................................................................................ 100 Employees 

424510 ......................... Grain and Field Bean Merchant Wholesalers ............................................................................. 100 Employees 

424690 ......................... Other Chemical and Allied Products Merchant Wholesalers ...................................................... 100 Employees 

424710 ......................... Petroleum Bulk Stations and Terminals ...................................................................................... 100 Employees 

447190 ......................... Other Gasoline Stations .............................................................................................................. $9,000,000 in Revenue 

522220 ......................... Sales Financing ........................................................................................................................... $7,000,000 in Revenue 

523910 ......................... Miscellaneous Intermediation ...................................................................................................... $7,000,000 in Revenue 

523930 ......................... Investment Advice ....................................................................................................................... $7,000,000 in Revenue 

524126 ......................... Direct Property and Casualty Insurance Carriers ....................................................................... 1,500 Employees 

525990 ......................... Other Financial Vehicles ............................................................................................................. $7,000,000 in Revenue 

531110 ......................... Lessors of Residential Buildings and Dwellings ......................................................................... $7,000,000 in Revenue 

551112 ......................... Offices of Other Holding Companies .......................................................................................... $7,000,000 in Revenue 

561110 ......................... Office Administrative Services ..................................................................................................... $7,000,000 in Revenue 

To determine entity size, EPA started 

with information reported in the 

Detailed Industry Questionnaire and 

Industry Screener Questionnaire, and 

updated information on each owner’s 

primary NAICS, current revenue, and 

employment size data from SEC filings, 

Dun & Bradstreet (D&B, 2009), and 

corporate Web sites. For details of this 

process, see Chapter 4 of the EA report. 

EPA compared the relevant measure for 

the identified parent entities to the 

appropriate SBA size criterion. 

Because EPA undertook this 

assessment for the sample of 

Manufacturers facilities and related 

owning entities responding to the 

previous 316(b) questionnaires, it was 

necessary to estimate the number of 

owning entities and to assess whether 

these entities are small, based on 

application of sample weights. Because 

the sample weights are based on 

facilities instead of entities, the facilitybased weights do not provide 

statistically precise estimates of the 

numbers of owning entities. As a result, 

EPA applied alternative sampleweighting assumptions that yield lower 

and upper bound estimates of the 

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22266 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

110Option 1 does not include an assessment of 

site-specific entrainment costs. However, Option 3 

includes EM based on closed-cycle cooling at all 

existing facilities. 

111The estimated total of small in-scope entities 

does not include the known 4 small Manufacturers 

numbers of small entities in the Primary 

Manufacturing Industries owning inscope Manufacturers facilities, as 

reported in Exhibit X–5. Because the 

analysis of facilities in Other Industries 

is not based on a statistically valid 

sample, EPA could not estimate the 

number of entities in Other Industries 

that would be subject to the 

requirements of the regulatory analysis 

options, or the percentage that are small 

entities. However, based on a review of 

nationwide water withdrawals and 

cooling water use, the Census of 

Manufacturers, and comments received 

on the Phase III proposed rule, EPA 

does not expect a significant number of 

additional small entities would be 

subject to today’s proposed regulatory 

requirements. 

EXHIBIT X–5—NUMBER AND PERCENTAGE OF SMALL ENTITIES IN PRIMARY MANUFACTURING INDUSTRIES SUBJECT TO THE

PROPOSED REGULATION, BY INDUSTRY

Sector Total sector 

small entities a

Lower bound estimate of number of entities Upper bound estimate of number of entities 

Estimated 

316(b) small 

entities 

Percentage of 

small entities 

subject to 

regulation 

Estimated 

316(b) small 

entities 

Percentage of 

small entities 

subject to 

regulation 

Paper .................................................................................... 218 9 4.1 29 13.2 

Chemicals ............................................................................ 2,506 4 0.2 18 0.7 

Petroleum ............................................................................. 188 4 2.1 4 2.2 

Steel ..................................................................................... 1,149 3 0.3 8 0.7 

Aluminum ............................................................................. 227 2 0.9 5 2.0 

Food ..................................................................................... 23,546 1 0.0 1 0.0 

Total for primary manufacturing industries b ........................ 27,834 23 0.1 64 0.2 

a Includes all firms with less than 500 employees from 2006 Statistics of U.S. Businesses (SUSB) of the U.S. Department of Commerce (U.S. 

DOC). The Small Business Administration defines firms in nearly all profiled NAICS codes according to the firm’s number of employees; however, for some in-scope manufacturing NAICS codes this threshold is 500 employees while for others this threshold is 750, 1,100, or 1,500 employees. Because the SUSB employment size categories do not correspond to the SBA entity size classifications, EPA used the 500 employee 

threshold for all in-scope NAICS. b Due to rounding columns may not sum. 

From this analysis, EPA estimates that 

23 to 64 small entities own 

Manufacturers facilities that are subject 

to today’s proposed rule, representing 

0.1 to 0.2 percent of total estimated 

small entities in the Primary 

Manufacturing Industries (see Exhibit 

X–5). Of the six Primary Manufacturing 

Industries, Paper has the largest number 

of small entities (9 to 29), and these 

small entities also account for the 

largest percentage of total small entities 

in any of the six industries—4.1 to 13.2 

percent of estimated total small entities 

in the Paper industry. The percentage of 

estimated total small entities subject to 

regulation reaches 2 percent for two of 

the remaining Primary Manufacturing 

Industries (Petroleum and Aluminum). 

From the 316(b) survey data, EPA 

identified an additional 4 entities in the 

Other Industries that are also small 

entities; however, as noted, EPA is 

unable to estimate the total number of 

small in-scope entities in the Other 

Industries. 

c. Total Estimate of Small In-Scope 

Entities 

On a combined basis, EPA estimates 

that 56–96 small entities would be 

within the scope of the existing facilities 

rule options. These counts do not 

include the additional known 4 small 

entities in the Other Industries. 

2. Statement of Basis 

As described above, EPA began its 

assessment of the impact of today’s 

proposed regulatory options on small 

entities by first estimating the number of 

small entities within the two industry 

segments subject to the proposed rule— 

Electric Generators and Manufacturers— 

that would be expected to be within the 

scope of today’s proposed rule. EPA 

then assessed whether these small 

entities would be expected to incur 

costs that constitute a significant 

impact; and assessed whether the 

number of those small entities estimated 

to incur a significant impact represent a 

substantial number of small entities. 

To assess whether small entities’ 

compliance costs might constitute a 

significant impact, EPA summed 

annualized compliance costs 110 for the 

Electric Generators and Manufacturers 

facilities estimated to be owned by a 

given small entity and calculated these 

costs as a percentage of entity revenue 

(Cost-to-Revenue Test). EPA compared 

the resulting percentages to impact 

criteria of 1 percent and 3 percent of 

revenue. Small entities estimated to 

incur compliance costs exceeding one or 

more of these impact thresholds were 

identified as potentially incurring a 

significant impact. 

For both Electric Generators and 

Manufacturers, EPA used alternative 

sample-weighting approaches, which 

provide a range of estimates of the 

numbers of small entities and in-scope 

facilities owned by these small entities. 

The results of this analysis using both 

weighting approaches are summarized 

below. In the following summary table 

(Exhibit X–6), the estimated numbers of 

small entities incurring costs exceeding 

1 percent and 3 percent of revenue are 

presented as ranges, based on the 

alternative sample weighting 

approaches. In addition, EPA compared 

the estimated numbers of small entities 

with costs exceeding a given impact 

threshold with the estimated number of 

small in-scope entities. The resulting 

estimated numbers and percentages of 

small in-scope entities that may incur a 

significant impact, as reported in 

Exhibit X–6, provide a measure of the 

potential impact of the existing facilities 

rule options on small in-scope entities. 

From these analyses, EPA estimates 

under Option 1, the proposed option, 

that 5 to 7 small entities will incur costs 

exceeding 1 percent of revenue, and 3 

small entities will incur costs exceeding 

3 percent of revenue. As percentages of 

the estimated total of 56 to 96 small inscope entities,111 these small entities 

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entities in the Other Industries. EPA assessed the 

potential impact of the regulatory options on these 

4 small entities; none were found to incur a 

significant impact under any of the four regulatory 

options. 112Option 1 does not include an assessment of 

site-specific entrainment costs. 

113These social cost estimates use a different 

estimate of downtime than the private cost 

estimates cited above, and are thus lower. For more 

details see Chapter 11 in the EA report. 

represent 5 to 13 percent of small inscope entities at the 1 percent of 

revenue threshold, and 3 to 5 percent of 

small in-scope entities at the 3 percent 

of revenue threshold. Both the number 

of small in-scope entities incurring a 

potential impact and the total of small 

in-scope entities are estimated as ranges. 

EPA calculated the range of percentage 

of total small in-scope entities incurring 

a potential impact by comparing (1) the 

lower of the estimated number of small 

in-scope entities incurring a potential 

impact with the higher of the estimated 

total of small in-scope entities (yields 

the lower value of the percentage range) 

and (2) the higher of the estimated 

number of small in-scope entities 

incurring a potential impact with the 

lower of the estimated total of small inscope entities (yields the higher value of 

the percentage range). 

For Option 2, EPA estimates that 5 to 

7 small entities will incur costs 

exceeding 1 percent of revenue (5–13 

percent of small in-scope entities), and 

3 to 7 small entities will incur costs 

exceeding 3 percent of revenue (3–13 

percent of small in-scope entities). For 

Option 3, EPA estimates that 10 to 22 

small entities will incur costs exceeding 

1 percent of revenue (10–39 percent of 

small in-scope entities), and 7 to 15 

small entities will incur costs exceeding 

3 percent of revenue (7–27 percent of 

small in-scope entities). For Option 4, 

EPA estimates that 4 to 6 small entities 

will incur costs exceeding 1 percent of 

revenue (4–11 percent of small in-scope 

entities), and 2 small entities will incur 

costs exceeding 3 percent of revenue (2– 

4 percent of small in-scope entities) (see 

Exhibit X–6). 

For more details on this analysis see 

EA Chapter 7: Regulatory Flexibility Act 

(RFA) Analysis. 

EXHIBIT X–6—ESTIMATED COST-TO-REVENUE IMPACT FOR SMALL IN-SCOPE ENTITIES

Regulatory option 

Cost impact category 

Cost > 1% of revenue Cost >3% of revenue 

Number of 

small entities 

% of small 

in-scope 

entities c

Number of 

small 

entities a,c

% of small 

in-scope 

entities b

Option 1: IM Everywhere ................................................................................. 5–7 5%–13% b 3 3%–5% 

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD .............. 5–7 5%–13% 3–7 3%–13% 

Option 3: I&E Mortality Everywhere ................................................................ 10–22 10%–39% 7–15 7%–27% 

Option 4: IM for Facilities with DIF > 50 MGD ................................................ 4–6 4%–11% b 2 2%–4% 

aThe number of entities with cost-to-revenue ratios exceeding 3 percent is a subset of the number of entities with such ratios exceeding 1 percent. bThe estimated number of small entities exceeding the impact threshold is the same under both estimation approaches; however, the total 

number of entities differs. cFor both Electric Generators and Manufacturers, EPA used alternative sample-weighting approaches, which provide a range of estimates of 

the numbers of small entities and in-scope facilities owned by these small entities (see Section VII(D)(a)(iv) for manufacturers and see Section 

VII(D)(b)(1)(b) for electric generator weighting approaches). 

As described in the preamble above, 

EPA eliminated 115 facilities from the 

analysis that are projected to close as a 

result of baseline financial conditions. 

Of the 115 baseline closures, 18 are 

small entities. 

To summarize, for the Proposed 

Option 112—Option 1, EPA estimates 

that 5 to 7 small entities would incur 

costs exceeding 1 percent of revenue 

and 3 small entities would incur costs 

exceeding 3 percent of revenue. These 

numbers of adversely affected small 

entities represent 5–13 percent of the 

estimated total of small in-scope entities 

for the 1 percent of revenue threshold, 

and 3–5 percent of the estimated total of 

small in-scope entities for the 3 percent 

of revenue threshold. Given the small 

number and percentage of small inscope entities estimated to incur a 

potentially significant economic impact, 

EPA judges that the Proposed Option, 

Option 1, will not cause a significant 

economic impact on a substantial 

number of small entities (SISNOSE). 

3. Certification Statement 

After considering the economic 

impacts of this proposed rule on small 

entities, EPA certifies that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

This rule contains a Federal mandate 

that may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. 

Accordingly, EPA has prepared under 

section 202 of the UMRA a written 

statement which is summarized below 

(see Chapter 8 of the EA report). 

1. Summary of Written Statement 

a. Authorizing Legislation 

Today’s proposed rule is issued under 

the authority of sections 101, 301, 304, 

306, 308, 316, 401, 402, 501, and 510 of 

the Clean Water Act (CWA), 33 U.S.C. 

1251, 1311, 1314, 1316, 1318, 1326, 

1341, 1342, 1361, and 1370. See section 

III of this preamble for detailed 

information on the legal authority of 

this rule. 

b. Cost-Benefit Analysis 

Today’s proposed options are 

expected to have total annualized pretax (social) costs of $383.80 million 

(2009 $) under Option 1, of $4,462.90 

million under Option 2, $4,631.62 

million under Option 3, and of $326.55 

under Option 4, including direct costs 

incurred by facilities and 

implementation costs incurred by 

federal, State, and local governments 

(annualized over 50 years and 

discounted at 3 percent).113 The total 

monetized use and non-use benefits of 

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114EPA was able to estimate nonuse benefits for 

the North Atlantic and Mid-Atlantic benefit regions. 

115The costs reflect the costs for facilities do 

comply with the primary BTA requirements, and do 

not reflect any facilities with reduced costs due to 

the available compliance alternatives and 

flexibilities. Since EPA anticipates a facility would 

generally participate in a compliance alternative if 

it was less burdensome or less costly to do so, 

today’s costs may be overstated. 

116All options also require site-specific 

determinations of BTA where uniform national 

controls are not included. 

today’s proposed options are estimated 

to be $17.63 million under Option 1, 

$120.79 million under Option 2, 

$125.65 million under Option 3, and 

$17.33 million under Option 4 

(annualized over 50 years and 

discounted at 3 percent).114 Thus, the 

total social costs exceed the total 

monetized benefits of the proposed 

options by $366.17 million for Option 1, 

by $4,342.11 million for Option 2, by 

$4,505.97 million for Option 3, and by 

$309.22 under Option 4. EPA notes that 

these differences are based on a 

comparison of a partial measure of 

benefits with a more complete measure 

of costs; 115 therefore, the results must 

be interpreted with caution. After 

considering the monetized and nonmonetized benefits of the proposed 

option, EPA has determined that the 

benefits of this option justify the costs. 

For a more detailed comparison of the 

costs and benefits of today’s proposed 

rule, see Chapter 12 of the EA report. 

EPA notes that States may be able to 

use existing sources of financial 

assistance to revise and implement this 

proposed rule. Section 106 of the Clean 

Water Act authorizes EPA to award 

grants to States, Tribes, intertribal 

consortia, and interstate agencies for 

administering programs for the 

prevention, reduction, and elimination 

of water pollution. These grants may be 

used for various activities to develop 

and carry out a water pollution control 

program, including permitting, 

monitoring, and enforcement. Thus, 

State and Tribal NPDES permit 

programs represent one type of State 

program that can be funded by section 

106 grants. 

c. Summary of State, Local, and Tribal 

Government Input 

EPA consulted with State 

governments and representatives of 

local governments in developing the 

rule. The outreach activities are 

discussed in section III.A.3 of this 

preamble. 

d. Least Burdensome Option 

EPA considered and analyzed several 

alternative regulatory options to 

determine the best technology available 

for minimizing adverse environmental 

impact. These regulatory options are 

discussed in today’s proposed rule at 67 

FR 17154–17168, as well as in section 

VIII of this preamble. These options 

included a range of technology-based 

approaches including impingement 

mortality technology at all facilities 

with a DIF greater than 50 MGD to 

additionally requiring impingement 

mortality controls and intake flow 

commensurate with closed-cycle 

cooling for all facilities.116 As discussed 

in detail in section VI, EPA did not 

select options exclusively because they 

were the most cost-effective among the 

options that fulfill the requirements of 

section 316(b). EPA selected the 

preferred option because it meets the 

requirement of section 316(b) of the 

CWA that the location, design, 

construction, and capacity of CWIS 

reflect the best technology available for 

minimizing adverse environmental 

impact. In addition, EPA has 

determined that the benefits of this 

option justify the costs, taking 

quantified and non-quantified costs and 

benefits into account. The preferred 

option reflects a flexible approach 

among the options considered that 

allows consideration of costs and 

benefits on a site-specific basis in 

determining BTA. 

2. Impact of Compliance Requirements 

on Small Governments 

This rule is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments (i.e., 

governments with a population of less 

than 50,000). For its assessment of the 

impact of compliance requirements on 

small governments, EPA compared total 

costs and costs per facility as estimated 

to be incurred by small governments 

with those values as estimated to be 

incurred by large governments. EPA also 

compared costs for small governmentowned facilities with those of nongovernment-owned facilities. The 

Agency evaluated costs per facility on 

the basis of both average and maximum 

annualized cost per facility. In these 

comparisons, both for the cost totals 

and, in particular, for the average and 

maximum cost per facility, the costs for 

small government-owned facilities were 

less than those for large governmentowned facilities or for small nongovernment-owned facilities. On this 

basis, EPA concluded that the 

compliance cost requirements of the 

proposed 316(b) Existing Facilities Rule 

would not significantly or uniquely 

affect small governments. 

Because no Manufacturers facility is 

government-owned, EPA conducted this 

analysis for Electric Generators only. 

a. Government-Owned Electric 

Generator Facilities by Ownership and 

Entity Size Category 

Exhibit X–8 provides an estimate of 

the number of non-Federal Government 

entities that operate Electric Generators 

subject to today’s proposed rule, by 

ownership type and size of government 

entity. As reported in Exhibit X–8, 24 

large government entities operate 41 

Electric Generators subject to this 

proposed rule, and 18 small government 

entities operate 18 Electric Generators 

subject to the rule. Of the 59 facilities 

that are owned by government entities, 

43 are owned by Municipalities, 9 are 

owned by State Governments, and 7 are 

owned by an Other Political 

Subdivision. 

EXHIBIT X–8—NUMBER OF GOVERNMENT ENTITIES AND GOVERNMENT-OWNED ELECTRIC GENERATOR FACILITIES

Ownership Type 

Number of government entities (by Size) a Number of facilities (by government entity size) b

Large Small Total Large Small Total 

Municipality .............................................. 18 17 35 26 17 43 

State Government .................................... 4 0 4 9 0 9 

Other Political Subdivision ....................... 2 1 3 6 1 7 

Total .................................................. 24 18 42 41 18 59 

a Counts of entities owning explicitly and implicitly analyzed Electric Generators; these are not weighted entity counts. 

b Counts of explicitly and implicitly analyzed Electric Generators; these are not weighted estimates. 

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117A small governmental jurisdiction is defined 

‘‘ as the government of a city, county, town, 

township, village, school district, or special district 

with a population of less than 50,000 (5 U.S.C. 

601(5)). 

118The entity counts described in this section 

were developed on a weighted basis and differ from 

the values reported in the preceding section, where 

were developed on an un-weighted basis. The 

values in this section were developed on a weighted 

basis because compliance costs were estimated only 

for explicitly analyzed facilities and facility weights 

are used to extend these results to the full set of 

in-scope facilities. 

b. Compliance Costs for Small 

Government-Owned Electric Generators 

Facilities 

EPA estimates that 10 of the 41 (24%) 

non-federal government-owned Electric 

Generators facilities subject to today’s 

proposed rule are owned by small 

governments (Table X–9).117,118 Exhibit 

X–9 summarizes total, average 

annualized compliance costs, and 

maximum annualized compliance costs 

for government (State, local, and Tribal 

governments) and non-governmentowned facilities for the three regulatory 

options and by size category of owning 

entity. 

EPA first looked at the relationship 

between costs incurred by small 

governments and small governmentowned Electric Generators in 

comparison to those incurred by large 

governments and large governmentowned facilities. As reported in Exhibit 

X–9, the estimated total annualized 

compliance costs for all non-federal 

government-owned Electric Generators 

are $10.8 million for Option 1, $102.3 

million for Option 2, $120.1 million for 

Option 3, and $9.5 million for Option 4. 

The 31 facilities owned by large 

governments would incur costs of $9.2 

million under Option 1, $100.7 million 

under Option 2, $107.6 million under 

Option 3, and $8.1 million under 

Option 4. In comparison, the 10 

facilities owned by small governments 

would incur costs of $1.5 million under 

Options 1 and 2, $12.5 million under 

Option 3, and $1.4 million under 

Option 4. On an average cost per facility 

basis, these costs are $0.1 million under 

Options 1, 2, and 4, and $1.2 million 

under Option 3, for facilities owned by 

small governments, with large 

government-owned facility costs of $0.3 

million under Options 1 and 4, $3.2 

million under Option 2, and $3.4 

million under Option 3. In addition, the 

maximum per facility costs owned by 

small governments are $0.2 million 

under Options 1, 2, and 4, and $2.1 

million under Option 3. The comparable 

values for large government-owned 

facilities are $1.0 million under Options 

1 and 4, and $17.8 million under 

Options 2 and 3. Accordingly, the costs 

for small government-owned facilities 

are considerably lower than those for 

large governments on the basis of total 

costs, average cost per-facility, and 

maximum cost per-facility. EPA 

therefore concludes that the compliance 

requirements of today’s proposed rule 

do not significantly or uniquely affect 

small governments in comparison to 

large governments. 

EXHIBIT X–9—ELECTRIC GENERATORS FACILITIES AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE FOR 316(B) 

EXISTING FACILITIES RULE OPTIONS

[Millions; 2009$] 

Ownership type Entity size 

Number of 

facilities 

(weighted) 

Total compliance 

costs 

Average cost per 

facility 

Maximum facility 

cost c

Option 1: IM Everywhere 

Government (excluding Federal) ............... Small ........................ 10 $1.5 $0.1 $0.2 

Large ....................... 31 9.2 0.3 1.0 

Private ........................................................ Small ........................ 16 7.7 0.5 2.5 

Large ....................... 485 354.4 0.7 7.2 

All Facilities b 559 394.2 0.7 7.2 

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD 

Government (excluding Federal) ............... Small ........................ 10 $1.5 $0.1 $0.2 

Large ....................... 31 100.7 3.2 17.8 

Private ........................................................ Small ........................ 16 32.3 2.0 10.9 

Large ....................... 485 4,171.7 8.6 59.9 

All Facilities b 559 4,811.3 8.6 59.9 

Option 3: I&E Mortality Everywhere 

Government (excluding Federal) ............... Small ........................ 10 $12.5 $1.2 $2.1 

Large ....................... 31 107.6 3.4 17.8 

Private ........................................................ Small ........................ 16 34.0 2.2 10.9 

Large ....................... 485 4,300.3 8.9 59.9 

All Facilities b 559 4,959.4 8.9 59.9 

Option 4: IM for Facilities with DIF > 50MGD 

Government (excluding Federal) ............... Small ........................ 10 $1.4 $0.1 $0.2 

Large ....................... 31 8.1 0.3 1.0 

Private ........................................................ Small ........................ 16 6.0 0.4 2.5 

Large ....................... 485 346.1 0.7 7.2 

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EXHIBIT X–9—ELECTRIC GENERATORS FACILITIES AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE FOR 316(B) 

EXISTING FACILITIES RULE OPTIONS—Continued 

[Millions; 2009$] 

Ownership type Entity size 

Number of 

facilities 

(weighted) 

Total compliance 

costs 

Average cost per 

facility 

Maximum facility 

cost c

Small ........................ 559 383.0 0.7 7.2 

a. Facility counts are weighted estimates and differ from the values reported in Exhibit X–8, above, which are un-weighted counts. Sample 

weighted values are needed in this table because costs were developed only for the explicitly analyzed Electric Generators facilities. See EA Appendix A.3: Used of Sample Weights in the Proposed Existing Facilities Rule Analysis for more detail. 

b. The All Facilities counts and cost values include 15 federal government-owned facilities and 10 private facilities owned by entities of unknown size. The individual facility count and cost estimates for the small and large entity categories exclude the values for these 25 facilities. 

c. Reflects maximum of un-weighted costs to explicitly analyzed facilities only. 

EPA’s analysis also considered 

whether this proposed rule may 

significantly or uniquely affect small 

governments in relation to nongovernment-owned Electric Generators. 

As reported in Exhibit X–9 the total 

compliance cost for 10 small 

government-owned Electric Generators 

incurring costs under today’s proposed 

rule are $1.5 million under Options 1 

and 2, $12.5 million under Option 3, 

and $1.4 million under Option 4, or on 

a per facility basis, approximately $0.1 

million for Options 1, 2, and 4, and $1.2 

million for Option 3. In addition, the 

highest annualized compliance cost for 

a small government-owned facility is 

$0.2 million under Options 1, 2, and 4, 

and $2.1 million under Option 3. In 

comparison, all small non-governmentowned Electric Generators subject to 

today’s proposed rule are expected to 

incur annualized compliance costs of 

$7.7 million under Option 1, $32.3 

million under Option 2, $34.0 million 

under Option 3, and $6.0 million under 

Option 4, or $0.5, $2.0, $2.2, and $0.4 

million per facility, respectively by 

regulatory option. The highest 

annualized cost for a small nongovernment-owned facility is $2.5 

million under Options 1 and 4, and 

$10.9 million under Options 2 and 3. 

On the basis of this comparison, as well, 

EPA further concludes that the 

compliance requirements of the 

proposed rule do not significantly or 

uniquely affect small governments. The 

EA report provides more detail on EPA’s 

analysis of impacts on governments. 

3. Administrative Costs 

The requirements of Section 316(b) 

are implemented through the NPDES 

(National Pollutant Discharge 

Elimination System) permit program. 

Forty-six States and territories with 

NPDES permitting authority under 

section 402(b) of the CWA are expected 

to incur costs to administer the Existing 

Facilities Rule in their jurisdictions. 

EPA estimates that States and territories 

will incur costs associated with five 

types of activities for implementing the 

requirements of today’s proposed rule: 

(1) Start-Up activities to learn and 

understand the requirements of today’s 

regulation and to implement 

administrative structures and 

procedures for administering the 

regulation; (2) first permit issuance 

activities; (3) permit reissuance 

activities; (4) entrainment study costs, 

and (5) annual activities. EPA estimates 

that the total annualized cost for these 

activities will be $5.31 million for 

Option 1, $2.19 for Option 2, $1.28 

million for Option 3, and $4.06 for 

Option 4. Monitoring costs comprise the 

largest share of administrative costs 

under all three regulatory options. 

Exhibit X–10 presents the annualized 

costs of the major administrative 

activities. 

EXHIBIT X–10—ANNUALIZED GOVERNMENT ADMINISTRATIVE COSTS

[Millions; 2009$] 

Activity 

Cost 

Electric Generators Manufacturers Total In-Scope 

Option 1: IM Everywhere 

Start-up Activities ....................................................................................................... $0.02 $0.02 $0.04 

First Permit Issuance Activities ................................................................................. $0.23 $0.24 $0.45 

Annual Monitoring Activities ...................................................................................... $1.17 $1.12 $2.29 

Entrainment Study ..................................................................................................... $1.19 $0.97 $2.16 

Permit Reissuance Activities ..................................................................................... $0.18 $0.18 $0.36 

Total .................................................................................................................... $2.79 $2.52 $5.31 

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD 

Start-up Activities ....................................................................................................... $0.02 $0.02 $0.04 

First Permit Issuance Activities ................................................................................. $0.17 $0.23 $0.35 

Annual Monitoring Activities ...................................................................................... $0.36 $1.07 $1.37 

Entrainment Study ..................................................................................................... $0.00 $0.00 $0.00 

Permit Reissuance Activities ..................................................................................... $0.14 $0.17 $0.31 

Total .................................................................................................................... $0.69 $1.48 $2.19 

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119Because of late revisions to the Existing 

Facilities Rule’s administrative requirements, EPA 

was unable to update these values from those 

developed earlier in the regulatory analysis. In 

addition, EPA did not estimate administrative costs 

for Option 4, but expects that these costs would be 

very similar to those estimated for Option 1. 

EXHIBIT X–10—ANNUALIZED GOVERNMENT ADMINISTRATIVE COSTS—Continued 

[Millions; 2009$] 

Activity 

Cost 

Electric Generators Manufacturers Total In-Scope 

Option 3: I&E Mortality Everywhere 

Start-up Activities ....................................................................................................... $0.02 $0.02 $0.04 

First Permit Issuance Activities ................................................................................. $0.16 $0.13 $0.29 

Annual Monitoring Activities ...................................................................................... $0.20 $0.52 $0.72 

Entrainment Study ..................................................................................................... $0.00 $0.00 $0.00 

Permit Reissuance Activities ..................................................................................... $0.13 $0.10 $0.23 

Total .................................................................................................................... $0.51 $0.77 $1.28 

Option 4: IM for Facilities with DIF > 50MGD 

Start-up Activities ....................................................................................................... $0.02 $0.02 $0.04 

First Permit Issuance Activities ................................................................................. $0.23 $0.06 $0.29 

Annual Monitoring Activities ...................................................................................... $1.04 $0.31 $1.35 

Entrainment Study ..................................................................................................... $1.19 $0.97 $2.16 

Permit Reissuance Activities ..................................................................................... $0.18 $0.05 $0.23 

Total .................................................................................................................... $2.65 $1.41 $4.06 

E. Executive Order 13132: Federalism 

Under Executive Order 13132, EPA 

may not issue an action that has 

federalism implications, that imposes 

substantial direct compliance costs on 

the State and local governments, and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

action. 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule would not alter the basic Statefederal scheme established in the Clean 

Water Act under which EPA authorizes 

States to carry out the NPDES 

permitting program. EPA expects 

today’s proposed rule would have little 

effect on the relationship between, or 

the distribution of power and 

responsibilities among, the federal and 

State governments. EPA expects an 

average annual burden of 21,785 hours 

with total average annual cost of $1.1 

million under Option 1, 6,538 hours and 

$346,000 under Option 2, and 20,395 

hours and $1.0 million under Option 3, 

for States to collectively administer this 

rule during the compliance period.119

After the initial compliance period, EPA 

expects an average annual burden of 

23,550 hours with an average annual 

cost of $1.2 million for Option 1, 2,528 

hours and $154,000 for Option 2, and 

16,988 hours and $841,000 for Option 3. 

EPA has identified 47 Phase II facilities 

that are owned by State or local 

government entities. The estimated 

average annual compliance cost 

incurred by these facilities is 

approximately $452,000 per facility 

under Option 1, $4.5 million under 

Option 2, and $1.1 million under 

Option 3. EPA does not expect Option 

4 to impose substantial direct 

compliance costs on the State and local 

governments higher than Option 1, and 

therefore is not expected to pose 

Federalism implications. Thus, 

Executive Order 13132 does not apply 

to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It would not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and the Indian tribes, or the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes as 

specified in Executive Order 13175. The 

national cooling water intake structure 

requirements would be implemented 

through permits issued under the 

NPDES program. No tribal governments 

are currently authorized pursuant to 

section 402(b) of the CWA to implement 

the NPDES program. In addition, EPA’s 

analyses show that no facility subject to 

today’s proposed rule is owned by tribal 

governments and thus this rule does not 

affect Tribes in any way in the 

foreseeable future. Thus, Executive 

Order 13175 does not apply to this 

action. 

EPA specifically solicits additional 

comment on this proposed action from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. This rule 

establishes requirements for cooling 

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120Affected populations include all individuals 

who live within a 50-mile radius of the facility who 

will be receiving a non-use benefit from the 

improved health of the aquatic ecosystem in the 

area, and any additional anglers who live outside 

of the 50-mile facility buffer and within a 50-mile 

radius of the reaches nearest to 316(b) Existing 

Facilities, who will be receiving the use benefit of 

improved catches as a result of the proposed rule. 

121That is, the estimated benefit population is 

comprised of a significantly lower share of lowincome and/or minority populations than the 

general population of the state. 

122Annual household income data in the FCP 

Module is available for the following categories: 

Less than $10,000; $10,000 to $19,999; $20,000 to 

$24,999; $25,000 to $29,999; $30,000 to $34,999; 

$35,000 to $39,999; $40,000 to $49,999; $50,000 to 

$74,999; $75,000 to $99,999; and more than 

$100,000. For this analysis as well as previous 

316(b) rule analyses, these categories were 

combined into low- and not low-income groups 

based on the U.S. Department of Health and Human 

Services’ poverty guidelines for a family of four 

living in the contiguous United States or D.C. The 

current (2009) poverty guideline is $22,050, which 

falls within the $20,000 to $24,999 income range 

(U.S. HHS, 2009). For the current analysis, EPA 

used $20,000 as the threshold for separating 

populations into low- and not low-income groups. 

123Race categories used in the analysis include 

white, black or African American, Asian or Native 

Hawaiian or Other Pacific Islander, American 

Indian or Alaska Native, and some other race. 

water intake structures to protect 

aquatic organisms. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 (66 FR 28355 

(May 22, 2001)) requires EPA to prepare 

and submit a Statement of Energy 

Effects to the Administrator of the Office 

of Information and Regulatory Affairs, 

Office of Management and Budget, for 

actions identified as ‘‘significant energy 

actions.’’ Based on the Office of 

Management and Budget’s guidance for 

assessing the potential energy impact of 

regulations (http:// 

www.whitehouse.gov/omb/memoranda/ 

m01_27.html), the Agency does not 

anticipate that today’s rule will have a 

significant adverse effect on the supply, 

distribution, or use of energy and thus 

will not constitute a significant 

regulatory action under Executive Order 

13211. 

The Agency analyzed the potential 

energy effects of today’s rule and other 

regulatory options considered for 

proposal. The potentially significant 

effects of today’s rule on energy supply, 

distribution or use concern the electric 

power sector. This analysis found that 

the rule’s compliance requirements 

would not cause effects in the electric 

power sector that would constitute a 

significant adverse effect under 

Executive Order 13211. Namely, the 

Agency’s analysis found that today’s 

rule would not reduce electricity 

production in excess of 1 billion 

kilowatt hours per year or in excess of 

500 megawatts of installed capacity, and 

therefore would not constitute a 

significant regulatory action under 

Executive Order 13211. 

For more detail on the potential 

energy effects of this proposal, see 

Section VII of this preamble or Chapter 

9 in the EA report. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking may 

involve technical standards, for example 

in the measurement of impingement and 

entrainment. Nothing in this proposed 

rule would prevent the use of voluntary 

consensus standards for such 

measurement where available, and EPA 

encourages permitting authorities and 

regulated entities to do so. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Because EPA expects that this proposed 

rule will help to preserve the health of 

aquatic ecosystems located in 

reasonable proximity to 316(b) Existing 

Facilities, EPA believes that all 

populations, including minority and 

low-income populations, will benefit 

from improved environmental 

conditions as a result of this rule.120

To meet the objectives of Executive 

Order 12898, EPA assessed whether 

today’s proposed rule could distribute 

benefits among population sub-groups 

in a way that is significantly 

unfavorable to low-income and minority 

populations. EPA compared key 

demographic characteristics of affected 

sub-state populations to those 

demographic characteristics at the level 

of the state. If the demographic profile 

of the sub-state ‘‘benefit population’’ 

were found to differ in a statistically 

significant and unfavorable 121 way from 

the demographic profile of the state, 

generally, then the proposed rule might 

be assessed as yielding an unfavorable 

distribution of benefits, from the 

perspective of the public policy 

principles of Executive Order 12898. 

The two demographic variables of 

interest for this EJ analysis are those 

within the Fish Consumption Pathway 

(FCP) Module that best capture the 

minority and low-income aspects of the 

populations affected, which are annual 

household income and race.122 123

Variable averages at the sub-state and 

state levels were compared to determine 

whether or not the demographic profile 

of the affected population was 

consistent with the state profile (for 

details see Chapter 9 of the EA report). 

The comparison of minority 

populations affected by the 316(b) 

Existing Facilities to the affected states’ 

overall populations found no 

statistically significant difference 

between these groups. While lowincome populations were less present in 

the benefit population than in the 

State’s overall population in many 

states, the differences were generally 

very small and the two groups were not 

found to be significantly different. EPA 

thus believes that the proposed 

regulation does not systematically 

discriminate against, or exclude or deny 

participation of, the lower income 

population group or the minority 

population group in the benefits of the 

proposed regulation in a way that would 

be contrary to the intent of E.O. 12898. 

Because today’s proposed regulation 

requires all 316(b) Existing Facilities to 

achieve compliance regardless of 

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124Additionally, in states in which low-income 

populations are less present in the benefits group 

than in the state population overall, these 

populations are not subject to the environmental 

damages today’s rule seeks to ameliorate to the 

same extent as other income groups. 

location, there can be no systematic 

discrimination or exclusion of low 

income or minority populations from 

participation in the rule’s benefits, 

based, for example, on selection of only 

specific facilities to which the 

regulation would apply.124 EPA thus 

concludes, overall, that the proposed 

regulation is consistent with the policy 

intent of E.O. 12898. Anecdotally, 

minority (e.g., Native American) and 

low-income populations may be more 

likely to include a larger proportion of 

subsistence fishermen. Since this rule 

will increase abundance of all fish 

species in the areas affected by cooling 

water intakes, it may provide a 

particular benefit to subsistence 

fishermen. To the extent that minority 

and low-income populations are overrepresented in this group, they may 

especially benefit from this rule. 

K. Executive Order 13158: Marine 

Protected Areas 

Executive Order 13158 (65 FR 34909, 

May 31, 2000) requires EPA to 

‘‘expeditiously propose new sciencebased regulations, as necessary, to 

ensure appropriate levels of protection 

for the marine environment.’’ EPA may 

take action to enhance or expand 

protection of existing marine protected 

areas and to establish or recommend, as 

appropriate, new marine protected 

areas. The purpose of the Executive 

Order is to protect the significant 

natural and cultural resources within 

the marine environment, which means 

‘‘those areas of coastal and ocean waters, 

the Great Lakes and their connecting 

waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’ 

Today’s proposed rule recognizes the 

biological sensitivity of tidal rivers, 

estuaries, oceans, and the Great Lakes 

and their susceptibility to adverse 

environmental impact from cooling 

water intake structures. This rule 

provides requirements to minimize 

adverse environmental impact for 

cooling water intake structures located 

on these types of waterbodies. 

EPA used GIS data of the locations of 

Marine Protected Areas (MPAs) from the 

national MPA program (http:// 

www.mpa.gov/helpful_resources/ 

inventory.html) to locate 316(b) existing 

facilities with intakes within MPAs. 

Under Option 1, 87 percent of in-scope 

facilities within MPAs obtain reductions 

in impingement mortality, while 

reductions in entrainment mortality 

cannot be estimated because they will 

be based on site-specific determinations 

of BTA. Under Options 2 and 3, 

impingement mortality is reduced at 92 

and 97 percent of 316(b) facilities in 

MPAs, while the addition of closedcycle cooling towers results in reduced 

entrainment mortality at 72 and 92 

percent of in-scope facilities found in 

MPAs, respectively. Therefore, EPA 

expects today’s proposed regulation 

would advance the objective of the 

Executive Order to protect marine areas. 

For more details of the methodology 

used in this analysis and the specific 

water bodies expected to be improved, 

see Section 5 in Chapter 9 in the EA 

report. 

XI. Solicitation of Data and Comments 

A. General Solicitation of Comment 

EPA encourages public participation 

in this rulemaking. EPA asks that 

commenters address any perceived 

deficiencies in the record supporting 

this proposal and that suggested 

revisions or corrections to the rule, 

preamble or record be supported by 

data. EPA invites all parties to 

coordinate their data collection 

activities with the Agency to facilitate 

cost-effective data submissions. Please 

refer to the FOR FURTHER INFORMATION

CONTACT section at the beginning of this 

preamble for technical contacts at EPA. 

Requests for comment on specific 

issues are scattered throughout this 

preamble in the sections where such 

issues are discussed. In addition, EPA 

specifically requests comment on the 

issues discussed below. 

B. Specific Solicitation of Comments 

and Data 

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. 

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 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.H. 

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 

cost-cost variance is not necessary 

because the Director already has the 

discretion to consider such factors. EPA 

requests comment on these conclusions. 

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 sitespecific basis, that entrainment 

mortality of one or more species of 

concern is not 100 percent. EPA 

requests comment on this approach. 

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. 

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 

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22274 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

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. 

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. 

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 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. 

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 

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. 

10. Flow Commensurate With ClosedCycle 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. 

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. 

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). 

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. 

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. 

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, 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. 

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. 

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17. Options Which Provide ClosedCycle 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 closedcycle 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. 

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 closed-cycle 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 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. 

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. 

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. 

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. 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. 

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. 

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. 

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 

inspections, or leave this to the 

determination of the permitting 

authority. See Section IX.F. 

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. 

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 sitespecific assessment of BTA, and 

whether there are additional 

requirements that could be relaxed for 

this group. 

27. Comment From State and Local 

Officials 

EPA specifically requests comment on 

this proposed rule from State and local 

officials. See Section X.E. 

28. Comment From Tribal Officials 

EPA specifically requests additional 

comment on this proposed action from 

Tribal officials. See Section X.F. 

List of Subjects 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 125 

Environmental protection, Cooling 

water intake structure, Reporting and 

recordkeeping requirements, Waste 

treatment and disposal, Water pollution 

control. 

Dated: March 28, 2011. 

Lisa P. Jackson, 

Administrator. 

For reasons set out in the preamble, 

Chapter I of Title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

1. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

2. The suspension of 40 CFR 

122.21(r)(1)(ii) and (r)(5), published on 

July 9, 2007 (72 FR 37109) is lifted. 

3. Section 122.21 is amended as 

follows: 

a. Revising paragraph (r)(1)(ii). 

b. Revising paragraphs (r)(2) 

introductory text, (r)(2)(i) though (iii), 

and (r)(3) through (5). 

c. Adding paragraphs (r)(6) through 

(12). 

§ 122.21 Application for a permit 

(applicable to State programs, see § 123.25) 

* * * * * 

(r) * * * 

(1) * * * 

(ii) Existing facilities. (A) The owner 

or operator of an existing facility as 

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22276 Federal Register / Vol. 76, No. 76 / Wednesday, April 20, 2011 / Proposed Rules 

defined in 40 CFR part 125, subpart J, 

with a cooling water intake structure 

that supplies cooling water exclusively 

for operation of a wet or dry cooling 

system and that meets the definition of 

closed cycle recirculating system at 40 

CFR 125.92 must submit to the Director 

for review the information required 

under paragraphs (r)(2), (3), and (6) of 

this section. The owner or operator of 

all other existing facilities as defined in 

part 125, subpart J, of this chapter must 

also submit to the Director for review 

the information required under 

paragraphs (r) (5), (7), and (8) of this 

section as part of its permit application. 

(B) The owner or operator of an 

existing facility as defined in 40 CFR 

part 125, subpart J, of this chapter that 

withdraws greater than 125 MGD actual 

intake flows (AIF) of water for cooling 

purposes must submit to the Director for 

review the information required under 

paragraphs (r)(9), (10), (11), and (12) of 

this section. 

(C) New units at existing facilities. 

New units at existing facilities with 

cooling water intake structures as 

defined in part 125, subpart J, of this 

chapter must provide an update to the 

information required under paragraphs 

(r)(2), (3), and (6) of this section and 

§ 125.95 of this chapter. Requests for 

alternative requirements under 

§ 125.94(d)(4) of this chapter must be 

submitted with your permit application. 

* * * * * 

(2) Source water physical data. The 

owner or operator of the facility must 

submit: 

(i) A narrative description and scaled 

drawings showing the physical 

configuration of all source water bodies 

used by your facility, including areal 

dimensions, depths, salinity and 

temperature regimes, and other 

documentation that supports your 

determination of the water body type 

where each cooling water intake 

structure is located; 

(ii) Identification and characterization 

of the source waterbody’s hydrological 

and geomorphological features, as well 

as the methods you used to conduct any 

physical studies to determine your 

intake’s area of influence within the 

waterbody and the results of such 

studies; 

(iii) Locational maps; and 

* * * * * 

(3) Cooling water intake structure 

data. The owner or operator of the 

facility must submit: 

(i) A narrative description of the 

configuration of each of your cooling 

water intake structures and where it is 

located in the water body and in the 

water column; 

(ii) Latitude and longitude in degrees, 

minutes, and seconds for each of your 

cooling water intake structures; 

(iii) A narrative description of the 

operation of each of your cooling water 

intake structures, including design 

intake flows, daily hours of operation, 

number of days of the year in operation 

and seasonal changes, if applicable; 

(iv) A flow distribution and water 

balance diagram that includes all 

sources of water to the facility, 

recirculating flows, and discharges; and 

(v) Engineering drawings of the 

cooling water intake structure. 

(4) Source water baseline biological 

characterization data. The owner or 

operator of each facility must submit the 

following information in order to 

characterize the biological community 

in the vicinity of the cooling water 

intake structure and to characterize the 

operation of the cooling water intake 

structures. This supporting information 

must include any available existing 

data. However, you may also 

supplement the data using newly 

conducted field studies. In the case of 

a new facility, the Director may also use 

this information in subsequent permit 

renewal proceedings to determine if 

your Design and Construction 

Technology Plan as required in 

§ 125.86(b)(4) of this chapter should be 

revised. The information you submit 

must include: 

(i) A list of the data in paragraphs 

(r)(4)(ii) through (vi) of this section that 

are not available and efforts made to 

identify sources of the data; 

(ii) A list of species (or relevant taxa) 

for all life stages and their relative 

abundance in the vicinity of the cooling 

water intake structure; 

(iii) Identification of the species and 

life stages that would be most 

susceptible to impingement and 

entrainment. Species evaluated must 

include the forage base as well as those 

most important in terms of significance 

to commercial and recreational 

fisheries; 

(iv) Identification and evaluation of 

the primary period of reproduction, 

larval recruitment, and period of peak 

abundance for relevant taxa; 

(v) Data representative of the seasonal 

and daily activities (e.g., feeding and 

water column migration) of biological 

organisms in the vicinity of the cooling 

water intake structure; 

(vi) Identification of all threatened, 

endangered, and other protected species 

that might be susceptible to 

impingement and entrainment at your 

cooling water intake structures; 

(vii) Documentation of any public 

participation or consultation with 

Federal or State agencies undertaken in 

development of the plan; and 

(viii) If you supplement the 

information requested in paragraph 

(r)(4)(i) of this section with data 

collected using field studies, supporting 

documentation for the Source Water 

Baseline Biological Characterization 

must include a description of all 

methods and quality assurance 

procedures for sampling, and data 

analysis including a description of the 

study area; taxonomic identification of 

sampled and evaluated biological 

assemblages (including all life stages of 

fish and shellfish); and sampling and 

data analysis methods. The sampling 

and/or data analysis methods you use 

must be appropriate for a quantitative 

survey and based on consideration of 

methods used in other biological studies 

performed within the same source water 

body. The study area should include, at 

a minimum, the area of influence of the 

cooling water intake structure. 

(ix) Identification of protective 

measures and stabilization activities 

that have been implemented, and a 

description of how these measures and 

activities affected the baseline water 

condition in the vicinity of the intake. 

(5) Cooling water system data. The 

owner or operator of the facility must 

provide the following information for 

each cooling water intake structure 

used: 

(i) A narrative description of the 

operation of the cooling water system 

and its relationship to cooling water 

intake structures; the proportion of the 

design intake flow that is used in the 

system including a distribution of water 

used for contact cooling, non-contact 

cooling, and process uses; a distribution 

of water reuse (to include cooling water 

reused as process water, process water 

reused for cooling, and the use of gray 

water for cooling); description of 

reductions in total water withdrawals 

including cooling water intake flow 

reductions already achieved through 

minimized process water withdrawals; 

description of any cooling water that is 

used in a manufacturing process either 

before or after it is used for cooling, 

including other recycled process water 

flows; the proportion of the source 

waterbody withdrawn (on a monthly 

basis); the number of days of the year 

the cooling water system is in operation 

and seasonal changes in the operation of 

the system, if applicable; 

(ii) Design and engineering 

calculations prepared by a qualified 

professional and supporting data to 

support the description required by 

paragraph (r)(5)(i) of this section; 

(iii) Description of existing 

impingement and entrainment 

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technologies or operational measures 

and a summary of their performance, 

including but not limited to reductions 

in entrainment mortality due to intake 

location and reductions in total water 

withdrawals and usage. 

(6) Impingement Mortality Reduction 

Plan. The Impingement Mortality 

Reduction Plan must identify the 

approach the owner or operator of the 

facility will use to meet the BTA 

standards for impingement mortality at 

40 CFR 125.94(b), including: 

(i) Identification of the method of 

intended compliance with the BTA 

standards for impingement mortality for 

each intake by either conducting a 

direct measure of impingement 

mortality through sampling, by 

demonstrating that the maximum design 

intake velocity is equal to or less than 

0.5 feet per second, or by measuring the 

intake velocity and demonstrating that 

the actual intake velocity is equal to or 

less than 0.5 feet per second. 

(ii) If you plan to comply with the 

BTA standards for impingement 

mortality requirements by conducting a 

direct measure of impingement 

mortality through sampling, you must 

provide a description of the study area 

including the area of influence of each 

cooling water intake structure and a 

taxonomic identification of the sampled 

or evaluated biological assemblages 

including all life stages of fish and 

shellfish that may be susceptible to 

impingement. 

(iii) If you plan to comply with the 

BTA standards for impingement 

mortality requirements by conducting a 

direct measure of impingement 

mortality through sampling, you must 

also provide a description of any 

sampling or monitoring approach to be 

used in measuring impingement 

mortality, including: 

(A) The duration and frequency of 

monitoring, subject to the minimum 

monitoring requirements established by 

the Director under 40 CFR 125.96 but in 

no case less frequently than a biweekly 

basis; 

(B) The monitoring locations; 

(C) The organisms to be monitored, 

and 

(D) The method in which naturally 

moribund organisms are identified and 

taken into account. 

(iv) If you plan to comply with the 

BTA standards for impingement 

mortality requirements by 

demonstrating that the design intake 

velocity is equal to or less than 0.5 feet 

per second, documentation including: 

(A) A demonstration that the 

maximum design intake velocity is 

equal to or less than 0.5 feet per second; 

(B) A description of technologies or 

operational measures to keep any debris 

from blocking the intake at no more 

than 15 percent of the opening of the 

intake; and 

(C) A description of technologies or 

operational measures to prevent 

entrapment of fish or shellfish by the 

cooling water intake system. 

(v) If you plan to comply with the 

BTA standards for impingement 

mortality by measuring the intake 

velocity to demonstrate the intake 

velocity is equal to or less than 0.5 feet 

per second, documentation including: 

(A) Velocity monitoring to 

demonstrate that the actual intake 

velocity is equal to or less than 0.5 feet 

per second; 

(B) Documentation of the technologies 

and operational measures taken to 

ensure the actual intake velocity will 

not exceed 0.5 feet per second; and, 

(C) A description of technologies or 

operational measures to prevent 

entrapment of impingeable fish or 

shellfish by the cooling water intake 

system. 

(vi) For intakes that withdraw from 

oceans and tidal waters, a description of 

the measures and technologies to reduce 

impingement mortality of shellfish to a 

level comparable to that achieved by 

properly deployed and maintained 

barrier nets, including but not limited to 

cylindrical wedgewire screens, seasonal 

deployment of barrier nets, intake 

location, and/or an appropriate 

handling and return system. 

(vii) You must demonstrate that the 

cooling water intake structure does not 

lead to entrapment. This demonstration 

must include documentation that 

organisms are excluded from entering 

any portion of the intake where there is 

not an opportunity for them to escape. 

If your cooling water intake structure 

results in entrapment and the only way 

for fish to escape is by being impinged 

upon the screens or to pass through the 

facility (in the case of open intakes), you 

must document that additional 

protective measures will be deployed 

such as, for example, modification of 

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, and a fish 

return with adequate flow to ensure fish 

return to the source water body. If you 

cannot document these additional 

protective measures, you must count all 

entrapment of organisms as mortality. 

(viii) Documentation of all methods 

and quality assurance/quality control 

procedures for sampling and data 

analysis. The proposed sampling and 

data analysis methods must be 

appropriate for a quantitative survey. 

(7) Performance studies. If the owner 

or operator has conducted studies, or 

chooses to use previously conducted 

studies obtained from other facilities, 

you must submit a description of those 

biological survival studies conducted, 

together with underlying data, and a 

summary of any conclusions or results, 

including but not limited to: 

(i) Site-specific studies addressing 

technology efficacy, through-plant 

entrainment survival, and other 

impingement and entrainment mortality 

studies; 

(ii) Studies conducted at other 

locations including an explanation as to 

why the data from other locations is 

relevant and representative of 

conditions at your facility; 

(iii) Studies older than 10 years must 

include an explanation of why the data 

is still relevant and representative of 

conditions at your facility. 

(8) Operational status. The owner or 

operator of the facility must submit a 

description of its operational status for 

each generating, production, or process 

unit, including but not limited to: 

(i) Descriptions of individual unit 

operating status including age of each 

unit, capacity utilization (or equivalent) 

for the previous 5 years, and any major 

upgrades completed within the last 15 

years, including but not limited to boiler 

replacement, condenser replacement, 

turbine replacement, or changes to fuel 

type; 

(ii) Descriptions of completed, 

approved, or scheduled uprates and 

NRC relicensing status of each unit at 

nuclear facilities; 

(iii) Descriptions of plans or 

schedules for decommissioning or 

replacement of units; 

(iv) Descriptions of current and future 

production schedules at manufacturing 

facilities; and 

(v) Descriptions of plans or schedules 

for any new units planned within the 

next 5 years. 

(9) Entrainment characterization 

study. For all species and life stages 

identified under the requirements of 

paragraph (r)(4) of this section, the 

owner or operator of the facility must: 

(i) Develop and submit an 

entrainment mortality data collection 

plan for review and comment by the 

Director. The entrainment mortality data 

collection plan must include, at a 

minimum: 

(A) The duration and frequency of 

monitoring; 

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(B) The monitoring locations, 

including a description of the study area 

and the area of influence of the cooling 

water intake structure(s); 

(C) A taxonomic identification of the 

sampled or evaluated biological 

assemblages; 

(D) Identification of all life stages of 

fish and shellfish, including 

identification of any surrogate life stages 

used, and identification of data 

representing both motile and non-motile 

life-stages of organisms; 

(E) The organisms to be monitored, 

including species of concern and 

threatened or endangered species; 

(F) Any other organisms identified by 

the Director; 

(G) The method by which latent 

mortality would be identified; 

(H) Documentation of all methods and 

quality assurance/quality control 

procedures for sampling and data 

analysis. The proposed sampling and 

data analysis methods must be 

appropriate for a quantitative survey. 

(ii) Obtain peer review of the 

entrainment mortality data collection 

plan. You must select peer reviewers in 

consultation with the Director, 

including that the Director may require 

additional peer reviewers. The Director 

may consult with EPA and Federal, 

State and Tribal fish and wildlife 

management agencies with 

responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s) to determine which 

peer review comments must be 

addressed by the final plan. You must 

provide an explanation for any 

significant reviewer comments not 

accepted. 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. 

(iii) Implement the entrainment 

mortality data collection plan no later 

than 6 months after submission of the 

entrainment mortality data collection 

plan to the Director. 

(iv) The Entrainment Characterization 

Study must include all of the following 

components: 

(A) Taxonomic identifications of all 

life stages of fish, shellfish, and any 

species protected under Federal, State, 

or Tribal Law (including threatened or 

endangered species) that are in the 

vicinity of the cooling water intake 

structure(s) and are susceptible to 

entrainment; 

(B) Characterization of all life stages 

of fish, shellfish, and any species 

protected under Federal, State, or Tribal 

Law (including threatened or 

endangered species), including a 

description of the abundance and 

temporal and spatial characteristics in 

the vicinity of the cooling water intake 

structure(s), based on sufficient data to 

characterize annual, seasonal, and diel 

variations in entrainment, and including 

but not limited to variations related to 

climate and weather differences, 

spawning, feeding and water column 

migration. These may include historical 

data that are representative of the 

current operation of your facility and of 

biological conditions at the site; and, 

(C) Documentation of the current 

entrainment of all life stages of fish, 

shellfish, and any species protected 

under Federal, State, or Tribal Law 

(including threatened or endangered 

species). The documentation may 

include historical data that are 

representative of the current operation 

of your facility and of biological 

conditions at the site. Entrainment 

samples to support the facility’s 

calculations must be collected during 

periods of representative operational 

flows for the cooling water intake 

structure and the flows associated with 

the samples must be documented. Data 

for specific organism mortality or 

survival that is applied to other lifestages or species must be identified. The 

owner or operator of the facility must 

identify and document all assumptions 

and calculations used to determine the 

total entrainment and entrainment 

mortality for that facility. 

(D) Information collected to meet 

paragraphs (r)(4) and (r)(7) of this 

section may be used in developing the 

Entrainment Characterization Study. 

(10) Comprehensive technical 

feasibility and cost evaluation study. 

The owner or operator of the facility 

must submit an engineering study of the 

technical feasibility and incremental 

costs of candidate entrainment mortality 

control technologies. The study must 

include the following: 

(i) Technical feasibility. At a 

minimum, the owner or operator of the 

facility must conduct a study to evaluate 

the technical feasibility of closed-cycle 

recirculating systems (cooling towers) 

and fine mesh screens with a mesh size 

of 2mm or smaller. This study must 

include: 

(A) A description of all technologies 

and operational measures considered 

(including alternative designs of closedcycle recirculating systems—such as 

natural draft cooling towers, mechanical 

draft cooling towers, hybrid designs, 

and compact or multi-cell 

arrangements); 

(B) A discussion of land availability, 

including an evaluation of adjacent land 

and acres potentially available due to 

generating unit retirements, production 

unit retirements, other buildings and 

equipment retirements, and ponds, coal 

piles, rail yards, transmission yards, and 

parking lots, and 

(C) Documentation of factors other 

than cost that may make a candidate 

technology impractical or infeasible for 

further evaluation. 

(ii) Other entrainment mortality 

control technologies. Following 

submission of the engineering study, the 

Director may require evaluation of 

additional technologies for reducing 

entrainment mortality. 

(iii) Cost evaluations. The study must 

include engineering cost estimates of all 

technologies considered in paragraphs 

(r)(10)(i) and (ii) of this section. All 

costs must be presented as the net 

present value (NPV) of the social costs 

and the corresponding annual value. In 

addition to the required social costs, 

you may choose to provide facility level 

compliance costs, however you must 

separately discuss facility level 

compliance costs and social costs. You 

must discuss and provide 

documentation for: 

(A) Any outages, downtime, or other 

impacts to facility revenue. Depreciation 

schedules, interest rates and related 

assumptions must be identified. 

(B) Costs and explanation of any 

additional facility modifications 

necessary to support construction and 

operation of technologies considered in 

paragraphs (r)(10)(i) and (ii) of this 

section, including but not limited to 

relocation of existing buildings or 

equipment, reinforcement or upgrading 

of existing equipment, and additional 

construction and operating permits. 

Depreciation schedules, interest rates, 

useful life of the technology considered, 

and any related assumptions must be 

identified. 

(C) Costs and explanation for 

addressing any non-water quality 

impacts identified in paragraph (r)(12) 

of this section. The cost evaluation must 

include a discussion of all reasonable 

attempts to mitigate each of these 

impacts. 

(iv) Peer review. Obtain peer review of 

the comprehensive technical feasibility 

and cost evaluation study. You must 

select peer reviewers in consultation 

with the Director, including that the 

Director may require additional peer 

reviewers. The Director may consult 

with EPA and Federal, State and Tribal 

fish and wildlife management agencies 

with responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s) to determine which 

peer review comments must be 

addressed by the final study. You must 

provide an explanation for any 

significant reviewer comments not 

accepted. Peer reviewers must have 

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appropriate qualifications in biology, 

engineering, hydrology, or other fields 

and their names and credentials must be 

included in the peer review report. 

(11) Benefits valuation study. The 

owner or operator of the facility must 

submit 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 paragraph (r)(10) 

of this section, including but not limited 

to: 

(i) Incremental changes in the 

numbers of fish and shellfish, for all life 

stages, lost due to impingement 

mortality and entrainment mortality as 

defined in 40 CFR 125.92; 

(ii) Identification of basis for any 

monetized values you assigned to 

changes in commercial and recreational 

species, forage fish, and shellfish, and to 

any other ecosystem or non-use benefits; 

(iii) Discussion of recent mitigation 

efforts already completed; 

(iv) Identification of other benefits to 

the environment and local communities, 

including but not limited to 

improvements for mammals, birds, and 

other organisms and aquatic habitats. 

(v) Peer review. Obtain peer review of 

the benefits valuation study. You must 

select peer reviewers in consultation 

with the Director, including that the 

Director may require additional peer 

reviewers. The Director may consult 

with EPA and Federal, State and Tribal 

fish and wildlife management agencies 

with responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s) to determine which 

peer review comments must be 

addressed by the final study. You must 

provide an explanation for any 

significant reviewer comments not 

accepted. 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. 

(12) Non-water Quality and Other 

Environmental Impacts Study. The 

owner or operator of the facility must 

submit a detailed site-specific 

discussion of the changes in non-water 

quality factors and other environmental 

impacts attributed to each technology 

and operational measure considered in 

paragraph (r)(10) of this section, 

including but not limited to both 

increases and decreases of each factor. 

The study must include the following: 

(i) Estimates of changes to energy 

consumption, including but not limited 

to parasitic load and turbine 

backpressure energy penalties; 

(ii) Estimates of changes to thermal 

discharges, including an estimate of any 

increased facility capacity, operations, 

and reliability that may be possible due 

to relaxed permitting constraints related 

to thermal discharges; 

(iii) Estimates of air pollutant 

emissions and of the human health and 

environmental impacts associated with 

such emissions; 

(iv) Estimates of changes in noise; 

(v) Discussion of impacts to safety, 

including documentation of the 

potential for plumes, icing, and 

availability of emergency cooling water; 

(vi) Impacts to grid reliability for the 

facility and for each power generating 

unit, including an estimate of changes to 

facility capacity, operations, and 

reliability due to cooling water 

availability; 

(vii) Facility reliability, including but 

not limited to facility availability, 

production of steam, and impacts to 

production based on process unit 

heating or cooling; 

(viii) Significant changes in 

consumption of water, including a sitespecific comparison of the evaporative 

losses of both once-through cooling and 

closed cycle recirculating systems, and 

documentation of impacts attributable 

to changes in water consumption; 

(ix) A discussion of all reasonable 

attempts to mitigate each of these 

factors. 

(x) Peer review. Obtain peer review of 

the non-water quality and other 

environmental impacts study. You must 

select peer reviewers in consultation 

with the Director, including that the 

Director may require additional peer 

reviewers. The Director may consult 

with EPA and Federal, State and Tribal 

fish and wildlife management agencies 

with responsibility for fish and wildlife 

potentially affected by the cooling water 

intake structure(s) to determine which 

peer review comments must be 

addressed by the final study. You must 

provide an explanation for any 

significant reviewer comments not 

accepted. 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. 

PART 125—CRITERIA AND 

STANDARDS FOR THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

4. The authority citation for part 125 

continues to read as follows: 

Authority: Clean Water Act, 33 U.S.C. 

1251 et seq.; unless otherwise noted. 

Subpart I—[Amended] 

5. Section 125.84 is amended as 

follows: 

a. In the heading of paragraph (c) by 

removing the words ‘‘equal to or greater 

than 2 MGD’’ and adding in their place 

the words ‘‘greater than 2 MGD.’’ 

b. By revising paragraph (d)(1). 

§ 125.84 As an owner or operator of a new 

facility, what must I do to comply with this 

subpart? 

* * * * * 

(d) * * * 

(1) You must demonstrate to the 

Director that the technologies employed 

will reduce the level of adverse 

environmental impact from your cooling 

water intake structures to a comparable 

level to that which you would achieve 

were you to implement the 

requirements of paragraphs (b)(1) and 

(2) of this section. This demonstration 

must include a showing that the impacts 

to fish and shellfish, including 

important forage and predator species, 

within the watershed will be 

comparable to those which would result 

if you were to implement the 

requirements of paragraphs (b)(1) and 

(2) of this section. The Director may 

consider information provided by any 

fishery management agency(ies) along 

with data and information from other 

sources. 

* * * * * 

6. Section 125.86 is amended as 

follows: 

a. Revise paragraph (b)(3) 

introductory text. 

b. Revise paragraph (b)(4)(iii). 

b. Remove and reserve paragraph 

(c)(2)(iv)(C). 

c. Remove and reserve paragraph 

(c)(2)(iv)(D)(2). 

§ 125.86 As an owner or operator of a new 

facility, what must I collect and submit 

when I apply for my new or reissued NPDES 

permit? 

* * * * * 

(b) * * * 

(3) Source waterbody flow 

information. You must submit to the 

Director the following information to 

demonstrate that your cooling water 

intake structure meets the flow 

requirements in § 125.84(b)(3) or (c)(2). 

* * * * * 

(4) * * * 

(iii) The owner or operator of a new 

facility required to install design and 

construction technologies and/or 

operational measures must develop a 

plan explaining the technologies and 

measures selected that is based on 

information collected for the Source 

Water Biological Baseline 

Characterization required by 40 CFR 

122.21(r)(4). (Examples of appropriate 

technologies include, but are not limited 

to, wedgewire screens, fine mesh 

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screens, fish handling and return 

systems, barrier nets, aquatic filter 

barrier systems, etc. Examples of 

appropriate operational measures 

include, but are not limited to, seasonal 

shutdowns or reductions in flow, 

continuous operations of screens, etc.) 

The plan must contain the following 

information: 

* * * * * 

7. Section 125.87 is amended by 

revising paragraph (a) introductory text 

and paragraph (a)(2) to read as follows: 

§ 125.87 As an owner or operator of a new 

facility, must I perform monitoring? 

* * * * * 

(a) Biological monitoring. You must 

monitor both impingement and 

entrainment of the commercial, 

recreational, and forage base fish and 

shellfish species identified in either the 

Source Water Baseline Biological 

Characterization data required by 40 

CFR 122.21(r)(4) or the Comprehensive 

Demonstration Study required by 

§ 125.86(c)(2), depending on whether 

you chose to comply with Track I or 

Track II. The monitoring methods used 

must be consistent with those used for 

the Source Water Baseline Biological 

Characterization data required in 40 

CFR 122.21(r)(4) or the Comprehensive 

Demonstration Study required by 

§ 125.86(c)(2). You must follow the 

monitoring frequencies identified below 

for at least two (2) years after the initial 

permit issuance. After that time, the 

Director may approve a request for less 

frequent sampling in the remaining 

years of the permit term and when the 

permit is reissued, if the Director 

determines the supporting data show 

that less frequent monitoring would still 

allow for the detection of any seasonal 

and daily variations in the species and 

numbers of individuals that are 

impinged or entrained. 

* * * * * 

(2) Entrainment sampling. You must 

collect samples at least biweekly to 

monitor entrainment rates (simple 

enumeration) for each species over a 24- 

hour period during the primary period 

of reproduction, larval recruitment, and 

peak abundance identified during the 

Source Water Baseline Biological 

Characterization required by 40 CFR 

122.21(r)(4) or the Comprehensive 

Demonstration Study required in 

§ 125.86(c)(2). You must collect samples 

only when the cooling water intake 

structure is in operation. 

* * * * * 

8. Section 125.89 is amended by 

revising paragraph (b)(1)(ii) to read as 

follows: 

§ 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 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 addition, you must 

review the Verification Monitoring Plan 

in § 125.86(c)(2)(iv)(D) and require that 

the proposed monitoring begin at the 

start of operations of the cooling water 

intake structure and continue for a 

sufficient period of time to demonstrate 

that the technologies and operational 

measures meet the requirements in 

§ 125.84(d)(1). Under subsequent 

permits, the Director must review the 

performance of the additional and/or 

different technologies or measures used 

and determine that they reduce the level 

of adverse environmental impact from 

the cooling water intake structures to a 

comparable level that the facility would 

achieve were it to implement the 

requirements of § 125.84(b)(1) and (2). 

* * * * * 

9. The suspension of 40 CFR 

125.90(a), (c), and (d), published on July 

9, 2007 (72 FR 37109) is lifted. 

10. The suspension of 40 CFR 125.91 

through 125.99, published on July 9, 

2007 (72 FR 37109) is lifted. 

11. Subpart J to part 125 is revised to 

read as follows: 

Subpart J—Requirements Applicable to 

Cooling Water Intake Structures for Existing 

Facilities Under Section 316(b) of the Clean 

Water Act 

Sec. 

125.90 Purpose of this subpart. 

125.91 Applicability. 

125.92 Special definitions. 

125.93 Compliance. 

125.94 As an owner or operator of an 

existing facility, what must I do to 

comply with this subpart? 

125.95 Permit application and supporting 

information requirements. 

125.96 Monitoring requirements. 

125.97 Other permit reporting and 

recordkeeping requirements. 

125.98 Director requirements. 

125.99 [Reserved] 

Subpart J—Requirements Applicable 

to Cooling Water Intake Structures for 

Existing Facilities Under Section 

316(b) of the Clean Water Act 

§ 125.90 Purpose of this subpart. 

(a) This subpart establishes the 

section 316(b) requirements that apply 

to cooling water intake structures at 

existing facilities that are subject to this 

subpart. These requirements include a 

number of components. These include 

standards for minimizing adverse 

environmental impact associated with 

the use of cooling water intake 

structures and required procedures (e.g., 

permit application requirements, 

information submission requirements) 

for establishing the appropriate 

technology requirements at certain 

specified facilities as well as required 

monitoring, reporting, and 

recordkeeping requirements to 

demonstrate compliance. In 

combination, these components 

represent the best technology available 

for minimizing adverse environmental 

impact associated with the use of 

cooling water intake structures. These 

requirements are to be established and 

implemented in National Pollutant 

Discharge Elimination System (NPDES) 

permits issued under authority of 

sections 301, 308, and 402 of the Clean 

Water Act (CWA). 

(b) Cooling water intake structures not 

subject to requirements under this or 

another subpart of this part must meet 

requirements under section 316(b) of the 

CWA established by the Director on a 

case-by-case, best professional judgment 

(BPJ) basis. 

(c) Nothing in this subpart shall be 

construed to preclude or deny the right 

of any State or political subdivision of 

a State or any interstate agency under 

section 510 of the CWA to adopt or 

enforce any requirement with respect to 

control or abatement of pollution that is 

more stringent than those required by 

Federal law. 

§ 125.91 Applicability. 

(a) An existing facility, as defined in 

§ 125.92, is subject to this subpart if it 

meets each of the following criteria: 

(1) It is a point source; 

(2) It uses or proposes to use cooling 

water intake structures with a total 

design intake flow (DIF) of greater than 

2 million gallons per day (MGD) to 

withdraw water from waters of the 

United States; and 

(3) Twenty-five percent or more of the 

water it withdraws is used exclusively 

for cooling purposes, measured on an 

average annual basis for each calendar 

year. 

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(b) Use of a cooling water intake 

structure includes obtaining cooling 

water by any sort of contract or 

arrangement with one or more 

independent suppliers of cooling water 

if the independent supplier withdraws 

water from waters of the United States 

but is not itself a new or existing facility 

as defined in subparts I or J of this part, 

except as provided in paragraph (d) of 

this section. An owner or operator of an 

existing facility may not circumvent 

these requirements by creating 

arrangements to receive cooling water 

from an entity that is not itself a facility 

subject to subparts I or J of this part. 

(c) Notwithstanding paragraph (b) of 

this section, obtaining cooling water 

from a public water system, using 

reclaimed water from wastewater 

treatment facilities or desalination 

plants, or recycling treated effluent as 

cooling water does not constitute use of 

a cooling water intake structure for 

purposes of this subpart. 

(d) 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. The owners and operators of 

such facilities must meet requirements 

established by the Director on a case-bycase, best professional judgment (BPJ) 

basis. 

§ 125.92 Special definitions. 

In addition to the definitions 

provided in § 122.2 of this chapter, the 

following special definitions apply to 

this subpart: 

Actual Intake Flow (AIF) means the 

average volume of water withdrawn on 

an annual basis by the cooling water 

intake structures over the past three 

calendar years. 

All life stages means eggs, larvae, 

juveniles, and adults. All life stages of 

fish and shellfish does not include 

members of the infraclass Cirripedia in 

the subphylum Crustacea (barnacles), 

green mussels (Perna viridis), or zebra 

mussels (Dreissena polymorpha). The 

Director may determine that all life 

stages of fish and shellfish does not 

include specified invasive species and 

naturally moribund species. 

Closed-cycle recirculating system 

means a system designed, using 

minimized make-up and blowdown 

flows, to withdraw water from a natural 

or other water source to support contact 

or noncontact cooling uses within a 

facility, or a system designed to include 

cooling ponds that are not themselves a 

waters of the U.S. and that does not rely 

upon continuous intake flows of water. 

New source water (make-up water) is 

added to the system to replenish losses 

that have occurred due to blowdown, 

drift, and evaporation. Closed-cycle 

recirculating system includes, but is not 

limited to, wet or dry cooling towers. 

For cooling towers where the source for 

make-up water is freshwater or has a 

salinity equal to or less than 0.5 parts 

per thousand, minimized make-up and 

blow down means operating at a 

minimum cycles of concentration of 3.0. 

For cooling towers where the source for 

make-up water is saltwater, brackish 

water, or has a salinity of greater than 

0.5 parts per thousand, minimized 

make-up and blow down means 

operating at a minimum cycles of 

concentration of 1.5. For facilities with 

a closed-cycle recirculating system other 

than a cooling tower, minimized makeup and blowdown flows means a 

reduction in actual intake flow of 97.5 

percent for freshwater, and 94.9 percent 

for salt water or brackish water. 

Contact cooling water means water 

used for cooling which comes into 

direct contact with any raw material, 

product, or byproduct. Examples of 

contact cooling water may include but 

are not limited to quench water at iron 

and steel plants, cooling water in a 

cracking unit, and cooling water directly 

added to food and agricultural products 

processing. 

Cooling pond means a man-made 

canal, channel, lake, pond or other 

impoundment designed and constructed 

to provide cooling for a nearby electric 

generating or manufacturing unit. A 

cooling pond may comprise a closedcycle recirculating system when waters 

of the U.S. are withdrawn only for the 

purpose of replenishing losses of 

cooling water due to blowdown, drift, 

and evaporation. 

Cooling water means water used for 

contact or noncontact cooling, including 

water used for equipment cooling, 

evaporative cooling tower makeup, and 

dilution of effluent heat content. The 

intended use of the cooling water is to 

absorb waste heat rejected from the 

process or processes used, or from 

auxiliary operations on the facility’s 

premises. Cooling 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 for the 

purposes of calculating the percentage 

of a facility’s intake flow that is used for 

cooling purposes in § 125.91(a)(3). 

Cooling water intake structure means 

the total physical structure and any 

associated constructed waterways used 

to withdraw cooling water from waters 

of the United States. The cooling water 

intake structure extends from the point 

at which water is withdrawn from the 

surface water source up to, and 

including, but not limited to, the intake 

pumps. 

Design intake flow (DIF) means the 

value assigned during the cooling water 

intake structure design to the maximum 

volume of water the cooling water 

intake system is capable of withdrawing 

from a source waterbody over a specific 

time period. The facility’s DIF may be 

adjusted to reflect permanent changes to 

the maximum capabilities of the cooling 

water intake system to withdraw cooling 

water, including but not limited to 

pumps permanently removed from 

service, flow limit devices, and physical 

limitations of the piping. DIF does not 

include values associated with 

emergency and fire suppression 

capacity or redundant pumps (i.e., backup pumps). 

Entrainment means the incorporation 

of any life stages of fish and shellfish 

with the intake water flow entering and 

passing through a cooling water intake 

structure and into a cooling water 

system. Entrainable organisms includes 

any organisms potentially subject to 

entrainment. For purposes of this 

subpart, entrainment includes those 

organisms that pass through a 3⁄8 inch 

sieve, and excludes those organisms 

collected or retained on a 3⁄8 inch sieve. 

Entrainment mortality means death as 

a result of entrainment through the 

cooling water intake structure, or death 

as a result of exclusion from the cooling 

water intake structure by fine mesh 

screens or other protective devices 

intended to prevent the passage of 

entrainable organisms through the 

cooling water intake structure. 

Entrapment means the condition 

where impingeable fish and shellfish 

lack the means to escape the cooling 

water intake system. Entrapment 

includes but is not limited to: organisms 

caught in the bucket of a traveling 

screen and unable to reach a fish return; 

organisms caught in the forebay of a 

cooling water intake system without any 

means of being returned to the source 

waterbody without experiencing 

mortality; or cooling water intake 

systems where the velocities in the 

intake pipes or in any channels leading 

to the forebay prevent organisms from 

being able to return to the source 

waterbody through the intake pipe or 

channel. 

Existing facility means any facility 

that commenced construction as 

described in 40 CFR 122.29(b)(4) on or 

before January 17, 2002; and any 

modification of, or any addition of a 

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unit at such a facility that is not a new 

facility at § 125.83. 

Flow reduction means any 

modification that serves to reduce the 

volume of cooling water withdrawn. 

Examples include, but are not limited 

to, variable speed pumps, seasonal flow 

reductions, wet cooling towers, dry 

cooling towers, hybrid cooling towers, 

and unit closures. 

Impingement means the entrapment 

of any life stages of fish and shellfish on 

the outer part of an intake structure or 

against a screening device during 

periods of intake water withdrawal. 

Impingement includes those organisms 

collected or retained on a 3⁄8 inch sieve, 

and excludes those organisms that pass 

through a 3⁄8 inch sieve. 

Impingement mortality means death 

as a result of impingement. 

Independent supplier means an 

entity, other than the regulated facility, 

that owns and operates its own cooling 

water intake structure and directly 

withdraws water from waters of the 

United States. The supplier provides the 

cooling water to other facilities for their 

use, but may also use a portion of the 

water itself. An entity that provides 

potable water to residential populations 

(e.g., public water system) is not a 

supplier for purposes of this subpart. 

Moribund means dying; close to 

death. 

New unit means any addition of an 

operating unit at an existing facility 

where the construction begins after 

[effective date of the final 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 unit 

where that unit is not subject to the 

requirements of Subpart I. For purposes 

of this subpart, 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. 

Operational measure means a 

modification to any operation that 

serves to minimize impact to all life 

stages of fish and shellfish from the 

cooling water intake structure. 

Examples of operational measures 

include, but are not limited to, more 

frequent rotation of traveling screens, 

use of a low pressure wash to remove 

fish prior to any high pressure spray to 

remove debris on the ascending side of 

a traveling screen, maintaining adequate 

volume of water in a fish return, and 

debris minimization measures such as 

air sparging of intake screens and/or 

other measures taken to maintain the 

design intake velocity. 

§ 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 8 years after 

the effective date of the final rule]. 

(b) The owner or operator of a facility 

subject to this subpart must comply 

with the applicable BTA standards for 

entrainment mortality in § 125.94(c) as 

soon as possible, based on the schedule 

of requirements set by the Director. 

(c) The owner or operator of an 

existing facility subject to this subpart 

that commences construction of a new 

unit after [effective date of the final rule] 

must comply with the BTA standards 

with respect to the new unit in 

§ 125.94(b) and § 125.94(d) upon 

commencement of the new unit’s 

operation. With respect to the existing 

units at the existing facility, the owner 

or operator must comply with 

paragraphs (a) and (b) of this section. 

§ 125.94 As an owner or operator of an 

existing facility, what must I do to comply 

with this subpart? 

(a) Applicable BTA standards. (1) The 

owner or operator of an existing facility 

with a design intake flow (DIF) greater 

than 2 MGD is subject to the 

impingement mortality standard under 

paragraph (b) of this section. 

(2) The owner or operator of an 

existing facility with a design intake 

flow (DIF) greater than 2 MGD is subject 

to the BTA standards for entrainment 

mortality under paragraph (c) of this 

section. The owner or operator may 

choose instead to comply with the 

entrainment mortality standard at 

paragraph (d) of this section. 

(3) New units at an existing facility 

that are not a new facility under 

§ 125.83 and that have a design intake 

flow (DIF) greater than 2 MGD are 

subject to the BTA standards for 

impingement mortality at paragraph (b) 

of this section and the entrainment 

mortality standards at paragraph (d) of 

this section. 

(b) BTA Standards for Impingement 

Mortality. By the dates specified in 

§ 125.93, the owner or operator of an 

existing facility subject to this subpart 

must achieve the impingement mortality 

standards provided in paragraphs (b)(1), 

or (2), of this section: 

(1) The owner or operator of an 

existing facility must: 

(i) Achieve the following 

impingement mortality limitations 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 annual average 

comprises the average for all 

measurements taken during the 

preceding 12-month period. The 

compliance period for the annual 

average will be established by the 

Director. 

IMPINGEMENT MORTALITY NOT TO EXCEED

Regulated parameter 

Annual 

average 

(percent) 

Monthly 

average 

(percent) 

Fish Impingement Mortality ..................................................................................................................................... 12 31 

(ii) The owner or operator of a facility 

that withdraws water from an 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. 

(iii) The owner or operator of a facility 

that employs traveling screens or 

equivalent active screens must: 

(A) Count any fish that are included 

in carryover from a screen or removed 

from a screen as part of debris removal 

as fish impingement mortality. 

(B) 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, 

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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. 

(iv) 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; 

(2) 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. 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; 

(ii) The maximum velocity limit must 

be achieved under all conditions, 

including during minimum ambient 

source water surface elevations (based 

on BPJ using hydrological data) 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: 

(A) Count any fish that are included 

in carryover from a screen or removed 

from a screen as part of debris removal 

as fish impingement mortality. 

(B) 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. 

(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; 

(c) BTA standards for entrainment 

mortality for existing facilities. The 

Director must establish BTA standards 

for entrainment mortality on a case-bycase basis. These standards must reflect 

the Director’s determination of the 

maximum reduction in entrainment 

mortality warranted after consideration 

of all factors relevant for determining 

the best technology available at each 

facility, including the factors specified 

in § 125.98. 

(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 paragraph (d)(1) or 

(d)(2) of this section. 

(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 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 

paragraph (d)(1) of this section. 

(3) This standard does not apply to: 

(i) Process water, gray water, waste 

water, reclaimed water, or other waters 

reused as cooling water in lieu of water 

obtained by marine, estuarine, or 

freshwater intakes; 

(ii) Cooling water used by 

manufacturing facilities for contact 

cooling purposes; 

(iii) Portions of those water 

withdrawals for auxiliary plant cooling 

uses totaling less than two MGD; 

(iv) Any volume of cooling water 

withdrawals used exclusively for makeup water at existing closed-cycle 

recirculating systems. For facilities with 

a combination of closed-cycle 

recirculating systems and other cooling 

water systems the entrainment mortality 

standard does not apply to that portion 

of cooling water withdrawn as make-up 

water for the closed-cycle recirculating 

system; 

(v) Any quantity of emergency backup water flows. 

(4) The Director may establish 

alternative requirements if: 

(i) The data specific to the facility 

indicate that compliance with the 

requirements of paragraphs (d)(1) or (2) 

of this section for the new unit would 

result in compliance costs wholly out of 

proportion to the costs EPA considered 

in establishing the requirements at issue 

or would result in significant adverse 

impacts on local air quality, significant 

adverse impacts on local water 

resources other than impingement or 

entrainment, or significant adverse 

impacts on local energy markets; 

(ii) The alternative requirements must 

achieve a level of performance as close 

as practicable to the requirements of 

paragraphs (d)(1) or (2) of this section; 

(iii) The alternative requirements will 

ensure compliance with other 

applicable provisions of the Clean Water 

Act and any applicable requirement of 

state law; 

(iv) The burden is on the owner or 

operator of the facility requesting the 

alternative requirement to demonstrate 

that alternative requirements should be 

authorized for the new unit. 

(5) For cooling water flows specified 

in paragraph (d) of this section that are 

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not subject to this standard, the Director 

may establish additional BTA standards 

for entrainment mortality on a case by 

case basis. 

(e) Nuclear facilities. If 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. 

(f) More stringent standards. The 

Director may establish more stringent 

requirements as best technology 

available for minimizing adverse 

environmental impact if the Director 

determines that your compliance with 

the applicable requirements of this 

section would not meet the 

requirements of applicable State and 

Tribal law, or other Federal law. 

(g) The owner or operator of a facility 

subject to this subpart must: 

(1) Submit and retain permit 

application and supporting information 

as specified in § 125.95; 

(2) Conduct compliance monitoring as 

specified in § 125.96; and 

(3) Report information and data and 

keep records as specified in § 125.97. 

§ 125.95 Permit application and supporting 

information requirements. 

(a) The Director may waive some or 

all of the information requirements of 40 

CFR 122.21(r)(8), (9), (10), (11), and (12) 

in the first permit application submitted 

after [effective date of the final rule] if: 

(1) The Director has already made a 

BTA determination requiring operation 

commensurate with a closed-cycle 

recirculating system; 

(2) The owner or operator of the 

facility uses cooling water exclusively 

for operation of a wet or dry cooling 

system that meets the definition of 

closed cycle recirculating system at 40 

CFR 125.92; or 

(3) The Director determines 

substantially all of the information 

requirements specified at 40 CFR 

122.21(r)(8), (9), (10), (11), and (12) have 

already been submitted by the owner or 

operator. 

(b) Permit application submittal 

timeframe for existing facilities. The 

owner or operator of a facility subject to 

this subpart must submit to the Director 

the following according the following 

schedule: 

(1) For existing power producers with 

a DIF of 50 MGD or above: 

(i) Information required in 40 CFR 

122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), 

(r)(7), and (r)(8) must be submitted to 

the Director no later than six months 

after [effective date of the final rule]. 

(ii) Results of the Impingement 

Mortality Reduction Plan as required in 

40 CFR 122.21(r)(6) must be submitted 

to the Director no later than 3 years and 

six months after [effective date of the 

final rule]. 

(2) For existing power producers with 

an AIF of greater than 125 MGD: 

(i) Information required in 40 CFR 

122.21(r)(9)(i), including the 

Entrainment Mortality Data Collection 

Plan with peer reviewers identified 

must be submitted to the Director no 

later than six months after [effective 

date of the final rule]. 

(ii) Information required in 40 CFR 

122.21(r)(9)(ii), including the peer 

reviewed Entrainment Mortality Data 

Collection Plan, must be submitted to 

the Director no later than 12 months 

after [effective date of the final rule]. 

(iii) Information required in 40 CFR 

122.21(r)(9)(iii), including the 

completed Entrainment Characterization 

Study, must be submitted to the Director 

no later than 4 years after [effective date 

of the final rule]. 

(iv) Information required in 40 CFR 

122.21(r)(10), including the 

Comprehensive Technical Feasibility 

and Cost Evaluation Study, 40 CFR 

122.21(r)(11), including the Benefits 

Valuation Study, and 40 CFR 

122.21(r)(12), including the Non-water 

Quality and Other Environmental 

Impacts Study, must be submitted to the 

Director no later than 5 years after 

[effective date of the final rule]. 

(3) For the owner or operator of all 

other existing facilities subject to this 

subpart, with the exception of those 

facilities identified in § 125.95(b): 

(i) Information required in 40 CFR 

122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), 

(r)(7), and (r)(8) must be submitted to 

the Director no later than three years 

after [effective date of the final rule]. 

(ii) Results of the Impingement 

Mortality Reduction Plan as required in 

40 CFR 122.21(r)(6) must be submitted 

to the Director no later than 6 years after 

[effective date of the final rule]. 

(4) For the owner or operator of all 

other existing facilities subject to this 

subpart with an actual intake flow (AIF) 

of greater than 125 MGD, with the 

exception of those facilities identified in 

§ 125.95(b)(2): 

(i) Information required in 40 CFR 

122.21(r)(9)(i), including the 

Entrainment Mortality Data Collection 

Plan, with peer reviewers identified, 

must be submitted to the Director no 

later than three years after [effective 

date of the final rule]. 

(ii) Information required in 40 CFR 

122.21(r)(9)(ii), including the peer 

reviewed Entrainment Mortality Data 

Collection Plan, must be submitted to 

the Director no later than three years 

and six months after [effective date of 

the final rule]. 

(iii) Information required in 40 CFR 

122.21(r)(9)(iii), including the 

completed Entrainment Characterization 

Study, must be submitted to the Director 

no later than 6 years and six months 

after [effective date of the final rule]. 

(iv) Information required in 40 CFR 

122.21(r)(10), including the 

Comprehensive Technical Feasibility 

and Cost Evaluation Study, 40 CFR 

122.21(r)(11), including the Benefits 

Valuation Study, and 40 CFR 

122.21(r)(12), including the Non-water 

Quality and Other Environmental 

Impacts Study, must be submitted to the 

Director no later than 7 years and six 

months after [effective date of the final 

rule]. 

(c) Permit application submittal 

timeframe for new units. For the owner 

or operator of any new units at existing 

facilities subject to this subpart: 

(1) Information required in 40 CFR 

122.21(r)(2), (r)(3), r(4)and (r)(6) specific 

to the new unit must be submitted to the 

Director 6 months prior to the 

commencement of operation of the new 

unit. 

(2) Application requirements. To 

demonstrate compliance of the new unit 

with requirements in § 125.94(b) and 

(d), you must collect and submit to the 

Director the information in paragraphs 

(c)(2)(i), (ii), (iii) and (iv) of this section 

6 months prior to the start of facility 

operations. 

(i) Impingement information. If you 

choose to comply with the impingement 

mortality requirements in § 125.94(b)(1), 

you must submit a plan to implement a 

monitoring program as specified in 

§ 125.96(a) upon the start of the new 

unit operation. 

(ii) Velocity information. If you 

choose to comply with the impingement 

mortality requirements in § 125.94(b)(2), 

you must submit the following 

information 6 months prior to the start 

of facility operations: 

(A) A narrative description of the 

design, structure, equipment, and 

operation used to meet the velocity 

requirement; and 

(B) Design calculations showing that 

the velocity requirement will be met at 

minimum ambient source water surface 

elevations (based on best professional 

judgment using available hydrological 

data) and maximum head loss across the 

screens or other device. 

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(iii) Flow reduction information. If 

you choose to comply with the flow 

reduction requirements in 

§ 125.94(d)(1), you must submit the 

following information to the Director to 

demonstrate that you have reduced your 

flow to a level commensurate with that 

which can be attained by a closed-cycle 

recirculating cooling water system: 

(A) A narrative description of your 

system that has been designed to reduce 

your intake flow to a level 

commensurate with that which can be 

attained by a closed-cycle recirculating 

cooling water system and any 

engineering calculations, including 

documentation demonstrating that your 

make-up and blowdown flows have 

been minimized consistent with the 

definition of closed-cycle recirculating 

system at § 125.92; and 

(B) If the flow reduction requirement 

is met entirely, or in part, by reusing or 

recycling water withdrawn for cooling 

purposes in subsequent industrial 

processes, you must provide 

documentation that the reused or 

recycled water, along with other 

technologies you employ, including 

additional flow reductions, meets the 

flow reduction requirement of 

§ 125.94(d)(1) or the entrainment 

mortality reduction requirement of 

§ 125.94(d)(2). 

(iv) Comprehensive Demonstration 

Study. If you choose to comply with the 

entrainment mortality requirements in 

§ 125.94(d)(2), you must perform and 

submit the results of a Comprehensive 

Demonstration Study (Study). This 

information is required to characterize 

the source water baseline in the vicinity 

of the cooling water intake structure(s), 

characterize operation of the cooling 

water intake(s), and to confirm that the 

technology(ies) proposed and/or 

implemented at your cooling water 

intake structure reduce the impacts to 

fish and shellfish to levels comparable 

to those you would achieve were you to 

implement the requirements in 

§ 125.94(d)(1). To meet the ‘‘comparable 

level’’ requirement, you must 

demonstrate that: 

(A) You have reduced entrainment 

mortality of all life stages of fish and 

shellfish to 90 percent or greater of the 

reduction that would be achieved 

through § 125.94(d)(1); and 

(B) You must develop and submit a 

plan to the Director containing a 

proposal for how information will be 

collected to support the study. The plan 

must include: 

(1) A description of the proposed and/ 

or implemented technology(ies) to be 

evaluated in the Study; 

(2) A list and description of any 

historical studies characterizing the 

physical and biological conditions in 

the vicinity of the proposed or actual 

intakes and their relevancy to the 

proposed Study. If you propose to rely 

on existing source water body data, it 

must be no more than 5 years old, you 

must demonstrate that the existing data 

are sufficient to develop a scientifically 

valid estimate of potential entrainment 

impacts, and provide documentation 

showing that the data were collected 

using appropriate quality assurance/ 

quality control procedures; 

(3) Any public participation or 

consultation with Federal or State 

agencies undertaken in developing the 

plan; and 

(4) A sampling plan for data that will 

be collected using actual field studies in 

the source water body. The sampling 

plan must document all methods and 

quality assurance procedures for 

sampling, and data analysis. The 

sampling and data analysis methods you 

propose must be appropriate for a 

quantitative survey and based on 

consideration of methods used in other 

studies performed in the source water 

body. The sampling plan must include 

a description of the study area 

(including the area of influence of the 

cooling water intake structure and at 

least 100 meters beyond); taxonomic 

identification of the sampled or 

evaluated biological assemblages 

(including all life stages of fish and 

shellfish); and sampling and data 

analysis methods. 

(C) You must submit documentation 

of the results of the Study to the 

Director. Documentation of the results 

of the Study must include: 

(1) Source Water Biological Study. If 

your new unit will use a new cooling 

water intake structure, you must update 

your Source Water Biological Study to 

include: 

(i) A taxonomic identification and 

characterization of aquatic biological 

resources including: a summary of 

historical and contemporary aquatic 

biological resources; determination and 

description of the target populations of 

concern (those species of fish and 

shellfish and all life stages that are most 

susceptible to impingement and 

entrainment); and a description of the 

abundance and temporal/spatial 

characterization of the target 

populations based on the collection of 

multiple years of data to capture the 

seasonal and daily activities (e.g., 

spawning, feeding and water column 

migration) of all life stages of fish and 

shellfish found in the vicinity of the 

cooling water intake structure; 

(ii) An identification of all threatened 

or endangered species that might be 

susceptible to entrainment by the 

proposed cooling water intake 

structure(s); and 

(iii) A description of additional 

chemical, water quality, and other 

anthropogenic stresses on the source 

waterbody. 

(2) Evaluation of potential cooling 

water intake structure effects. This 

evaluation will include: 

(i) Calculations of the reduction in 

entrainment mortality of all life stages of 

fish and shellfish that would need to be 

achieved by the technologies you have 

selected to implement to meet 

requirements under § 125.94(d)(1). To 

do this, you must determine the 

reduction in entrainment mortality that 

would be achieved by implementing the 

requirements of § 125.94(d)(1) at your 

site. 

(ii) An engineering estimate of 

efficacy for the proposed and/or 

implemented technologies used to 

minimize entrainment mortality of all 

life stages of fish and shellfish. You 

must demonstrate that the technologies 

reduce entrainment mortality of all life 

stages of fish and shellfish to a 

comparable level to that which you 

would achieve were you to implement 

the requirements in § 125.94(d)(1). The 

efficacy projection must include a sitespecific evaluation of technology(ies) 

suitability for reducing impingement 

mortality and entrainment based on the 

results of the Source Water Biological 

Study of this section. Efficacy estimates 

may be determined based on case 

studies that have been conducted in the 

vicinity of the cooling water intake 

structure and/or site-specific technology 

prototype studies. 

(3) Verification monitoring plan. You 

must include in the Study the following: 

A plan to conduct, at a minimum, two 

years of monitoring to verify the fullscale performance of the proposed or 

implemented technologies, operational 

measures. The verification study must 

begin at the start of operations of the 

cooling water intake structure and 

continue for a sufficient period of time 

to demonstrate that the facility is 

reducing the level of entrainment to the 

level documented in paragraph (c)(2) of 

this section. The plan must describe the 

frequency of monitoring and the 

parameters to be monitored. The 

Director will use the verification 

monitoring to confirm that you are 

meeting the level of entrainment 

mortality reduction required in 

§ 125.94(d), and that the operation of the 

technology has been optimized. 

(d) After the initial submission of the 

40 CFR 122.21(r) application studies, 

the owner or operator of a facility may, 

in subsequent permit applications, 

request to reduce the information 

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required, if conditions at the facility and 

in the waterbody remain substantially 

unchanged since the previous 

application so long as the relevant 

previously submitted information 

remains representative of current source 

water, intake structure, cooling water 

system, and operating conditions. The 

owner or operator of a facility must 

submit its request for reduced cooling 

water intake structure and waterbody 

application information to the Director 

at least one year prior to the expiration 

of its NPDES permit. The owner or 

operator’s request must identify each 

element in this subsection that it 

determines has not substantially 

changed since the previous permit 

application and the basis for the 

determination. The Director has the 

discretion to accept or reject any part of 

the request. 

(e) After issuance of the first permit 

pursuant to this subpart, the owner or 

operator of a facility must: 

(1) Commence information collection 

activities pursuant to this subsection no 

later than eighteen months prior to 

permit expiration; 

(2) Submit all required 40 CFR 

122.21(r) application studies, or the 

reduced permit application studies if 

approved by the Director under 

§ 125.95, to the Director no later than six 

months prior to permit expiration. 

(f) The Director has the discretion to 

request or determine additional 

information to supplement the permit 

application process, including 

inspection of the facility. 

(g) Permit application records. The 

owner or operator of a facility must keep 

records of all submissions that are part 

of its permit application for a minimum 

of 5 years to document compliance with 

the requirements of this section. If the 

Director approves a request for reduced 

permit application studies under 

§ 125.95(d), the owner or operator of a 

facility must keep records of all 

submissions that are part of the previous 

permit application for an additional 5 

years. 

§ 125.96 Monitoring requirements. 

(a) Monitoring requirements for 

impingement mortality. The owner or 

operator of an existing facility subject to 

§ 125.94(b) must monitor as follows: 

(1) Permit compliance monitoring is 

required at each intake, or where 

appropriate other points of compliance 

as approved by the Director including 

but not limited to forebays, barrier nets, 

or fish handling and return systems, to 

demonstrate compliance with the 

impingement mortality limitations 

listed in § 125.94(b). 

(2) You must collect samples to 

monitor impingement rates (simple 

enumeration) for each species over a 24- 

hour period and no less than once per 

month when the cooling water intake 

structure is in operation. 

(3) If the Director has approved a 

compliance alternative provided under 

§ 125.94(b)(2), the monitoring 

requirement in paragraphs (a)(1) and 

(a)(2) of this section is waived. 

(4) Compliance monitoring for intake 

velocity. If your facility is subject to 

§ 125.94(b)(2) and you cannot document 

a design intake flow for the intake equal 

to or less than 0.5 feet per second under 

all conditions, including during 

minimum ambient source water surface 

elevations (based on BPJ using 

hydrological data) and maximum head 

loss across the screens, compliance 

monitoring is required to demonstrate 

the intake velocity is consistent with the 

requirements of § 125.94(b)(2). The 

frequency of monitoring must be no less 

than twice per week. 

(b) Monitoring requirements for 

entrainment mortality for new units. 

Monitoring is required to demonstrate 

compliance with the requirements of 

§ 125.94(d). 

(1) If you are required to demonstrate 

flow reductions consistent with the 

requirements of § 125.94(d)(1), the 

frequency of monitoring must be no less 

than once per week and must be 

representative of normal operating 

conditions. Flow monitoring must 

include measuring cooling water 

withdrawals, make-up water, and 

blowdown volume. The Director may 

require additional monitoring necessary 

to demonstrate compliance with 

§ 125.94(d). 

(2) If you are required to demonstrate 

reductions consistent with the 

requirements of § 125.94(d)(2), you must 

monitor entrainable organisms that pass 

through a 3/8-inch sieve at a proximity 

to the intake that is representative of the 

entrainable organisms in the absence of 

the intake structure. You must also 

monitor the latent entrainment mortality 

in front of the intake structure. Mortality 

after passing the cooling water intake 

structure must be counted as 100 

percent mortality unless you have 

demonstrated to the approval of the 

Director that the mortality for each 

species of concern is less than 100 

percent. Samples must be representative 

of the cooling water intake when the 

structure is in operation. In addition, 

sufficient samples must be collected to 

allow for calculation of annual average 

entrainment levels of all life stages of 

fish and shellfish. Specific sampling 

protocols and frequency of sampling 

will be determined by the Director. The 

sampling must measure the total count 

of entrainable organisms or density of 

organisms, unless the Director approves 

of a different metric for such 

measurements. In addition, you must 

monitor the AIF for each intake. The 

AIF must be measured at the same time 

as the samples of entrainable organisms 

are collected. The Director may require 

additional monitoring necessary to 

demonstrate compliance with 

§ 125.94(d). 

(c) Visual or remote inspections. You 

must either conduct visual inspections 

or employ remote monitoring devices 

during the period the cooling water 

intake structure is in operation. You 

must conduct such inspections 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. The Director may establish 

alternative procedures for use during 

periods of inclement weather. 

§ 125.97 Other permit reporting and 

recordkeeping requirements. 

The owner or operator of an existing 

facility subject to this subpart is 

required to submit to the Director the 

following information: 

(a) Monitoring reports. You must 

include the applicable impingement 

mortality and entrainment mortality 

monitoring reports with both your 

Discharge Monitoring Reports (DMRs) 

(or equivalent State reports) and your 

permit annual report to the Director. 

(1) Impingement mortality. If you 

intend to comply with the Impingement 

Mortality requirements by biological 

measurements, your report must 

describe the compliance measurement 

location for each intake, the species of 

concern, the counts and percentage 

mortality of organisms sampled, the 

time period for evaluating latent 

mortality effects, and other information 

specified in the permit. If you intend to 

comply with the Impingement Mortality 

requirements by demonstrating an 

intake velocity of less than 0.5 feet per 

second, your report must describe the 

compliance measurement location for 

each intake, the method for velocity 

measurements, the intake velocity 

measurements and calculations, and 

other information specified in the 

permit. 

(2) Impingement mortality 

compliance monitoring. Your report 

must contain impingement mortality 

compliance monitoring data to 

document compliance with the 

requirements of § 125.94(b) for each 

intake. If you intend to comply with the 

Impingement Mortality requirements by 

biological measurements, you must also 

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update and submit your calculated 

annual average for each month covered 

by the report. The annual average 

comprises the average for all 

measurements taken during the 

preceding 12-month period. 

(3) Entrainment mortality at existing 

facilities. The Director will determine 

what (if any) other reporting 

requirements are necessary. 

(4) Entrainment mortality for new 

units at existing facilities. The owner or 

operator of a facility complying with 

§ 125.94(d) must describe the 

compliance measurement location for 

the facility, the species of concern, the 

counts and percentage mortality of 

organisms sampled, and other 

information specified in the permit. 

(5) Entrainment mortality compliance 

monitoring for new units at existing 

facilities. The owner or operator of a 

facility must submit monthly reports 

containing compliance monitoring data 

to document compliance with the 

requirements of § 125.94(d)(1) or (d)(2). 

(i) For compliance with § 125.94(d)(1), 

flow measurements of water withdrawn 

for make-up and blowdown. 

(ii) For compliance with 

§ 125.94(d)(2), measurements of 

entrainment mortality, and your 

monthly actual intake flow. You must 

also update and submit your calculated 

annual average of entrainment 

mortality. The annual average comprises 

the average for all measurements taken 

during the preceding 12-month period. 

(b) Status reports. If you have a 

schedule established under § 125.93 you 

must submit a quarterly status report as 

to the progress of meeting the applicable 

standards. These reports may include 

updates on pilot study results, 

construction schedules, maintenance 

outages, or other appropriate topics. 

(c) Annual certification statement and 

report. You must submit an annual 

certification statement signed by the 

responsible corporate officer as defined 

in 40 CFR 403.12(l) or 40 CFR 122.22. 

This statement must include, at a 

minimum the following information: 

(1) An annual certification statement 

which indicates that each technology as 

approved by the Director is being 

maintained and operated as set forth in 

its permit, or a justification to allow 

modification of the practices listed in 

the facility’s most recent annual 

certification. 

(2) If your facility is subject to BTA 

standards for impingement mortality or 

entrainment mortality specified in 

§ 124.94(b)(2) or (d)(2), you must 

include a statement in your annual 

certification that specifies the 

information submitted in your most 

recent annual certification is still valid 

and appropriate or a justification to 

allow modification of the practices 

listed in the most recent annual 

certification. 

(i) If you cannot document that you 

are operating a closed-cycle 

recirculating system, you must also 

submit data and information in the 

annual certification statement 

documenting compliance with the 

requirement in § 124.94(d)(1) that flow 

commensurate with a closed-cycle 

recirculating system is met. 

(ii) If your facility is subject to the 

Impingement Mortality Standard 

specified in § 125.94(b)(2) and you 

cannot document a design intake 

velocity for the intake equal to or less 

than 0.5 feet per second, you must also 

submit data and information in the 

annual certification documenting 

compliance with the intake velocity 

requirements. 

(3) If the information contained in the 

previous year’s annual certification is 

still applicable, you may simply state as 

such in a letter to the Director, and the 

letter, along with any applicable data 

submission requirements specified in 

this section shall constitute the annual 

certification. However, if you have 

substantially modified operation of any 

unit at your facility that impacts cooling 

water withdrawals or operation of your 

cooling water intake structures, you 

must submit revisions to the 

information required in the permit 

application. 

(d) Permit reporting records retention. 

You must keep records of all 

submissions that are part of the permit 

reporting requirements of this section 

for a period of at least five (5) years from 

the date of permit issuance. 

(e) The Director has the discretion to 

require additional supplemental permit 

reporting when necessary to establish 

permit compliance and may provide for 

periodic inspection of the facility. 

§ 125.98 Director requirements. 

(a) Permit application. The Director 

must review the materials submitted on 

a timely basis by the applicant under 

§ 122.21(r) before each permit renewal 

or reissuance to determine compliance 

with all applicable requirements. The 

Director is encouraged to provide 

comments expeditiously so that the 

permit applicant may modify its 

information gathering activities and 

provide any necessary supplemental 

materials. 

(b) Alternate schedule. When the 

Director establishes an alternate 

schedule under § 125.93, the schedule 

must provide for compliance as 

expeditiously as possible. In no event 

may the schedule provide for 

compliance beyond the dates specified 

in § 125.93. In establishing the schedule, 

the Director is encouraged to consider 

the extent to which those technologies 

proposed to be implemented to meet the 

requirements of § 125.94(c) and/or (d) 

will be used, or may otherwise affect 

choice of technology(ies), to meet the 

requirements of § 125.94(b). When 

establishing a schedule for electric 

power generating facilities, the Director 

should consider measures to maintain 

adequate energy reliability and 

necessary grid reserve capacity during 

any facility outage. These may include 

establishing a staggered schedule for 

multiple facilities serving the same 

localities. The Director may consult 

with local and regional electric power 

agencies when establishing a schedule 

for electric power generating facilities. 

The Director may determine that 

extenuating circumstances (e.g., lengthy 

scheduled outages, future production 

schedules) warrant establishing a 

different compliance date for any 

manufacturing facility. In no event may 

the schedule provide for compliance 

beyond the dates specified in § 125.93. 

(c) Species of concern. The Director 

must review and approve the species of 

fish and shellfish identified as species 

of concern, including but not limited to: 

(1) Any species of concern identified 

using the source water baseline 

biological characterization data 

submitted under 40 CFR 122.21(r)(4); 

(2) Any fish and shellfish identified 

for evaluation under § 125.94; 

(3) Data submitted as part of the 

impingement mortality reduction plan 

under 40 CFR 122.21(r)(6); 

(4) Data submitted as part of the sitespecific entrainment mortality data 

collection plan under 40 CFR 

122.21(r)(9); 

(5) The Director may request 

additional information in determining 

the site-specific species of concern and 

any additional fish and shellfish to be 

included in the impingement mortality 

reduction plan and, where applicable, 

the entrainment mortality data 

collection plan; 

(6) 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. 

(7) The Director may consider data 

submitted by other interested parties. 

(d) Site-specific impingement 

mortality reduction plan. The Director 

must review and approve the sitespecific Impingement Mortality 

Reduction Plan required under 40 CFR 

122.21(r)(6). The plan must include, at 

a minimum, the duration and frequency 

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of required monitoring, the monitoring 

location, the organisms to be monitored 

and, where appropriate, the method in 

which naturally moribund organisms 

would be identified and taken into 

account. 

(e) Site-specific entrainment mortality 

controls. 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) and § 125.95. 

These entrainment mortality controls 

must reflect the Director’s determination 

of the maximum reduction in 

entrainment mortality warranted after 

consideration of factors relevant for 

determining the best technology 

available at each facility. Prior to any 

permit renewal, the Director must 

review the performance of the 

entrainment mortality technologies used 

and determine that they continue to 

meet the BTA requirements of 

§ 125.94(c). The Director must provide a 

written explanation of the proposed 

BTA determination in the fact sheet 

pursuant to 40 CFR 124.8 (or statement 

of basis pursuant to 40 CFR 124.7) for 

the proposed permit. The written 

explanation must describe why the 

Director has rejected any entrainment 

mortality control technologies or 

measures that are better performing than 

the selected technologies or measures, 

and must reflect consideration of all 

reasonable attempts to mitigate any 

adverse impacts of otherwise available 

better performing entrainment 

technologies. The Director may reject an 

otherwise available technology as BTA 

standards for entrainment mortality 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. If all technologies 

considered have social costs not 

justified by the social benefit, or have 

unacceptable adverse impacts that 

cannot be mitigated, the Director may 

determine that no additional control 

requirements are necessary beyond what 

the facility is already doing. At a 

minimum, the proposed determination 

in the fact sheet or statement of basis 

must be based on consideration of the 

following factors: 

(1) Numbers and types of organisms 

entrained; 

(2) Entrainment impacts on the 

waterbody; 

(3) Quantified and qualitative social 

benefits and social costs of available 

entrainment technologies, 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; and 

(8) Remaining useful plant life; and 

(9) Impacts on water consumption. 

(f) Ongoing permitting proceedings. 

Where ongoing permit proceedings have 

begun prior to [effective date of the final 

rule] and the Director has determined 

that the information already submitted 

by the owner or operator of the facility 

is substantially the same as required 

under 40 CFR 122.21(r)(9), (10), (11) and 

(12), the Director may proceed with any 

site-specific determination of BTA 

standards for entrainment mortality 

without requiring the owner or operator 

of the facility to resubmit the 

information required in 40 CFR 

122.21(r)(9), (10), (11) and (12), and the 

Director may choose to address the 

factors specified in § 125.98(e). If the 

Director has received permit application 

information from the owner or operator 

of the facility, and the Director has 

determined that the information is 

substantially the same as required under 

40 CFR 122.21(r)(9), (10), (11) and (12) 

but the Director has not yet made a BTA 

standards for entrainment mortality 

determination, the Director must 

address the factors specified in § 125.98 

(e). In all subsequently issued permits 

for that facility the Director must 

address the factors specified in § 125.98 

(e). 

(g) Site-specific entrainment mortality 

data collection plan and studies. The 

Director must review and approve the 

site-specific entrainment mortality data 

collection plan for new units at existing 

facilities. The plan must include, at a 

minimum, the duration and frequency 

of monitoring, the monitoring location, 

the organisms to be monitored, and the 

method in which latent mortality would 

be identified. The Director may require 

the owner or operator of a facility to 

include additional peer reviewers for 

the entrainment mortality data 

collection plan, the comprehensive 

technical feasibility and cost evaluation 

study, the benefits valuation study, and 

the non-water quality and other 

environmental impacts assessment. 

(h) Annual certification statement. 

The Director must review and verify the 

Annual Certification Statement required 

under § 125.97(c). 

(i) Additional information. In 

implementing the Director’s 

responsibilities under this provision, 

the Director is authorized to request 

additional necessary information and to 

inspect the facility. 

§ 125.99 [Reserved] 

[FR Doc. 2011–8033 Filed 4–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

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