Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 34315 

development of its Transportation 

Conformity SIP and Regional Haze 

Implementation Plan. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately demonstrate consultation 

with, and participation by, affected local 

entities related to the 1997 annual and 

2006 24-hour PM2.5 NAAQS when 

necessary. 

V. Proposed Action 

As described above, with the 

exception of sub-element 110(a)(2)(E)(ii) 

respecting CAA section 128(a)(1) 

requirements, EPA is proposing to 

determine that Tennessee’s 

infrastructure submissions, provided to 

EPA on December 14, 2007 and October 

19, 2009, addressed the required 

infrastructure elements for the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

EPA is proposing to approve in part and 

conditionally approve in part, 

Tennessee’s SIP submission consistent 

with section 110(k)(3) of the CAA. 

As described above, with the 

exception of sub-element 110(a)(2)(E)(ii) 

respecting CAA section 128(a)(1) 

requirements, and contingent upon final 

action by EPA to approve TDEC’s July 

29, 2011, SIP submission regarding the 

State’s PSD/NSR regulations, TDEC will 

have addressed the requisite elements of 

the CAA 110(a)(1) and (2) SIP 

requirements pursuant to EPA’s October 

2, 2007 and September 25, 2009, 

guidance to ensure that the 1997 annual 

and 2006 24-hour PM2.5 NAAQS are 

implemented, enforced, and maintained 

in Tennessee. With respect to 

110(a)(2)(E)(ii) (referencing section 128 

of the CAA), EPA is proposing to 

conditionally approve Tennessee’s 

infrastructure SIP. 

Based on a March 28, 2012, 

commitment that TDEC will adopt 

specific enforceable measures into its 

SIP and submit these revisions to EPA 

within one year of EPA’s final 

rulemaking to address the applicable 

portions of section 128, EPA is today 

proposing to conditionally approve 

Tennessee’s infrastructure submission 

for the 1997 annual and 2006 24-hour 

PM2.5 NAAQS for sub-element 

110(a)(2)(E)(ii) respecting the 

requirements of CAA section 128(a)(1). 

EPA is also proposing to approve 

Tennessee’s infrastructure submissions 

for the 1997 annual and 2006 24-hour 

PM2.5 NAAQS because its December 14, 

2007, and October 19, 2009, 

submissions are consistent with section 

110 of the CAA. This proposed approval 

with respect to element 110(a)(2)(C) is 

contingent upon EPA first taking final 

action to approve TDEC’s July 29, 2011, 

SIP submission regarding the State’s 

PSD/NSR regulations, 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Air pollution control, Environmental 

protection, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 31, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–14096 Filed 6–8–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 122, 123, 124, and 125 

[EPA–HQ–OW–2008–0667, FRL–9681–4] 

RIN 2040–AE95 

National Pollutant Discharge 

Elimination System—Proposed 

Regulations to Establish Requirements 

for Cooling Water Intake Structures at 

Existing Facilities; Notice of Data 

Availability Related to Impingement 

Mortality Control Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of Data Availability. 

SUMMARY: On April 20, 2011, EPA 

published proposed standards for 

cooling water intake structures at all 

existing power generating facilities and 

existing manufacturing and industrial 

facilities as part of implementing 

section 316(b) of the Clean Water Act 

(CWA). As a result of that notice, EPA 

received extensive comments on its 

proposal. These comments included a 

substantial amount of new information 

accompanied by reports, studies and 

other documents often supplemented 

with the substantiating data. In some 

cases, the materials may not have 

included the underlying data supporting 

the documents’ conclusions. 

Consequently, in many circumstances, 

EPA contacted the commenters to obtain 

the raw data underlying the documents 

for EPA’s use in further assessing its 

proposal. This notice presents a 

summary of the significant new 

information and data EPA has received 

since proposal and a discussion of 

possible revisions to the final rule that 

EPA is considering that were suggested 

by the data and comments. EPA solicits 

public comment on the data and 

possible revisions presented in this 

mstockstill on DSK4VPTVN1PROD with PROPOSALS

34316 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 

notice and the record supporting this 

notice. 

DATES: Comments must be received on 

or before July 11, 2012. 

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. 

• Email: 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. 

Information that you consider to be CBI 

or otherwise protected should not be 

submitted through www.regulations.gov 

or email. The 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 email 

comment directly to EPA without going 

through http://www.regulations.gov 

your email 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; 

email: shriner.paul@epa.gov. For 

additional economic information, 

contact Erik Helm at 202–566–1049; 

email: helm.erik@epa.gov or Wendy 

Hoffman at 202–564–8794; email: 

hoffman.wendy@epa.gov. For additional 

biological information, contact Tom 

Born at 202–566–1001; email: 

born.tom@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Supporting Documentation 

A. 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 for which the 

disclosure 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 

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. 

B. 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. 

Table of Contents 

I. Purpose of This Notice 

A. Summary of Proposed Rule for Existing 

Facilities 

II. New Information Received Concerning 

Proposed Impingement Mortality (IM) 

Requirements 

A. New Information Received 

B. Alternative Approaches Under 

Consideration 

1. Site Specific Approach for Reducing 

Impingement Mortality 

2. Closed-Cycle Recirculating Systems 

3. Measurement of Intake Velocity 

4. Impingement Mortality Limitations 

5. Credit for Existing or Newly Installed 

Technologies 

6. Facilities With Low Impingement Rates 

7. Species of Concern 

III. General Solicitation of Comment 

I. Purpose of This Notice 

On April 20, 2011, EPA published 

proposed standards for cooling water 

intake structures at all existing power 

generating facilities and existing 

manufacturing and industrial facilities 

as part of EPA’s implementation of its 

responsibilities under section 316(b) of 

the Clean Water Act (CWA) (76 FR 

22174). EPA received voluminous 

comments and data submissions during 

the 90-day public comment period. 

After many commenters requested 

additional time to review the proposal, 

on July 20, 2011, EPA extended the 

comment period by an additional 30 

days (76 FR 43230). 

Along with the comments on the 

proposal, EPA also received more than 

50 documents containing new 

impingement and entrainment data. In 

addition, after the comment period 

ended, EPA followed up with those 

commenters whose comments referred 

to studies or summarized data in their 

comments, but had not submitted the 

underlying studies or raw data 

referenced in their comments. As a 

result, these commenters also provided 

over 30 additional documents 

containing new impingement and 

entrainment data. EPA is reviewing each 

of these roughly 80 documents for 

possible use in developing the final 

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impingement mortality limitations. This 

notice makes these data available and 

discusses the relevance of these data to 

the analyses conducted by EPA. EPA 

solicits comment both on the 

information presented in this notice and 

the record supporting this notice. 

EPA requested comment on all 

aspects of the proposed existing facility 

rule, including specific solicitation of 

comments and data on 28 key issues (76 

FR 22174, Section XI). EPA received 

more than 1,100 comment letters, 

several of which provided specific 

recommendations for changes to the 

proposed regulatory language. Some of 

the suggested revisions, if adopted, may 

help to address EPA’s intent to greatly 

reduce the damage to ecosystems while 

accommodating site specific 

circumstances and providing cost 

effective options for compliance. Some 

of these suggestions relate to the 

impingement mortality standard, and 

are discussed in this notice along with 

accompanying new data. 

EPA notes that all data and options 

and issues discussed in its proposal are 

still under consideration for the final 

rule. This notice is intended to apprise 

the public of the new information, make 

this information available for public 

review and provide an opportunity to 

comment on the new information that 

the Agency will consider in making its 

decisions for the final rule. However, 

EPA notes that the Agency is not 

reopening the proposed rule for 

comment through this notice. 

A. Summary of Proposed Rule for 

Existing Facilities 

The 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 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 responds to 

the remands of the Phase II existing 

facility rule and the existing facilities 

portion of the Phase III rule from the 

U.S. Courts of Appeals for the Second 

Circuit and Fifth Circuit. In addition, 

EPA responded to the decision in 

Riverkeeper, Inc. v. EPA, 358 F.3d 174 

(2d cir. 2004) and proposed to remove 

from the Phase I new facility rule the 

restoration-based compliance alternative 

and the associated monitoring and 

demonstration requirements. 

The proposed rule provided 

significant flexibility in complying with 

the proposed technology standards for 

impingement and entrainment. For the 

proposal, EPA concluded that the best 

technology available for reducing 

impingement mortality was modified 

travelling screens. Based on this BTA 

technology, EPA proposed standards for 

impingement that would require 

existing facilities to reduce 

impingement mortality. The owner or 

operator of the facility would be able to 

choose one of two options to comply 

with the impingement standard. Under 

the first option, a numeric fish 

impingement mortality limitation, the 

owner or operator would have to sample 

to measure fish mortality directly to 

show it will meet the specified mortality 

performance standards. The owner or 

operator could use any appropriate 

technology to meet the standard. Under 

the second option, a velocity limitation, 

a facility would have to demonstrate to 

the permitting authority that its 

maximum intake velocity will not 

exceed 0.5 feet per second under 

specified design conditions. Operation 

of its intake system in compliance with 

these specified design conditions would 

become part of the facility’s permit 

requirements. EPA estimated that more 

than half of the facilities that could be 

impacted by the proposed rule already 

employ readily available technologies 

that are likely to put them into 

compliance with the proposed standard. 

For entrainment, EPA proposed a sitespecific determination to be made by 

the Director based on local concerns and 

on the unique circumstances of each 

facility. The proposed rule would 

establish requirements for the owner or 

operator of a facility with actual intake 

flows in excess of 125 MGD to conduct 

comprehensive studies, and for all 

facilities to develop certain information 

as part of the permit application. Under 

the procedures proposed to be 

established in the proposal, the permit 

authority would determine the 

appropriate technology to reduce 

entrainment mortality, if any, to be 

implemented at each facility after 

considering site-specific factors. 

II. New Information Received 

Concerning Proposed Impingement 

Mortality (IM) Requirements 

EPA received a substantial number of 

comments on how the final rule should 

address impingement mortality (IM). 

EPA based its proposed national 

impingement mortality limitations on 

the performance of modified traveling 

screens. And, as noted above, as an 

alternative EPA proposed that a facility 

could demonstrate that either the design 

intake velocity or the actual intake 

velocity at its operation was less than 

0.5 feet per second. Most of the 

commenters, including members of the 

U.S. Congress, state and local elected 

officials, and industry stakeholders, 

requested additional flexibility in 

complying with the IM requirements. 

While the proposal would not 

specifically require the use of modified 

traveling screens with a fish handling 

and return system to meet the IM limits, 

some commenters interpreted the 

proposed rule as requiring this. EPA’s 

proposed IM limits are expressed as a 

monthly average and an annual average. 

A facility could meet the limitation 

through any technology it chose. In 

EPA’s view, this approach is a more 

flexible one than establishing a design 

standard (i.e., requiring a specific 

technology) because it would allow 

facilities to choose a compliance 

technology that best meets the 

individual facility requirements dictated 

by site and other conditions. Further, 

such an approach allows for innovation 

in meeting the national impingement 

mortality limitations. EPA recognizes, 

however, that some regulated entities 

may find a technology-based 

compliance option, rather than a 

performance based approach, more 

attractive. Such an approach, 

particularly the specification of preapproved technologies, may offer higher 

regulatory certainty, easier 

demonstration of compliance, and may 

offer a less expensive alternative due to 

reduced monitoring requirements 

associated with pre-approved 

technologies. Some commenters viewed 

the proposed IM standard as overly 

stringent and requested that EPA 

establish alternative IM requirements, 

including site-specific IM requirements 

similar to those proposed for 

entrainment. Other commenters 

provided data pertaining to the 

performance of technologies, including 

modified traveling screens used as the 

basis for the IM limitations. 

EPA reviewed all the performance 

data submitted. EPA is considering 

these performance data in its evaluation 

of BTA, including likely revisions to the 

IM annual and monthly numeric limits, 

different approaches that may better 

streamline compliance, and additional 

options that would better facilitate a 

demonstration of performance that is 

equivalent to the proposed BTA. EPA 

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34318 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 

also received several comments that 

proposed alternative regulatory 

approaches or provided specific 

alternative regulatory language. EPA is 

also reviewing these comments and 

considering the alternative regulatory 

approaches suggested. The data received 

and corresponding issues are described 

in more detail in the following sections. 

A. New Information Received 

As discussed in section I, EPA 

received more than 80 additional 

documents containing impingement and 

entrainment data. In some cases, the 

only data available was the facility 

name plus raw sampling data for a 

number of different species of fish and/ 

or shellfish. Other documents focus on 

source water characterization data. EPA 

identified more than 40 distinct sets of 

additional impingement sampling and 

performance data from these 

documents. EPA is reviewing the data in 

each of these documents for potential 

inclusion in EPA’s evaluation of an IM 

limitation. In light of these data and 

accompanying comments, EPA is also 

reviewing the criteria it adopted for 

including a study in the limit 

calculations. EPA’s proposed criteria 

were described in Chapter 11 of the 

Technical Development Document 

(DCN 10–0004, EPA–HQ–OW–2008– 

0667–1282). 

In addition to the new impingement 

and entrainment data, some 

stakeholders suggested alternative 

regulatory frameworks for impingement 

mortality. Under the proposed rule, a 

facility would be permitted to adopt any 

technology it chooses so long as it will 

achieve the required impingement 

limitation. Thus, a facility could 

demonstrate the reductions in 

impingement mortality by either (1) 

increasing the survival of those fish and 

shellfish that are impinged, or (2) by 

reducing the fish and shellfish 

impingement rates in the first place. 

EPA had concluded, based on the 

information it reviewed, that the design 

standards pertaining to intake velocity 

would achieve the impingement 

mortality limitations, and proposed 

such design criteria as having met the 

impingement mortality limitation. 

Therefore, compliance with intake 

velocity limitation would achieve full 

compliance with the numeric 

impingement mortality limitations and 

no additional control technology would 

be required. 

Several industry stakeholders stated 

that, despite EPA’s best intentions, the 

proposed rule applied a one-size-fits-all 

approach for impingement mortality. 

While all of the suggested changes to the 

proposal seek to provide additional 

flexibility through a variety of 

approaches, most of the comments had 

several elements in common: 

• Commenters suggested defining 

modified traveling screens as a preapproved technology or otherwise 

streamlining the NPDES process for 

facilities using the candidate technology 

upon which BTA is based. Thus, EPA 

would designate certain technologies or 

certain conditions as complying with 

the impingement requirement; 

• Providing a mechanism to identify 

other technologies that perform 

comparably to modified traveling 

screens; 

• Modifying the proposal so that 

facilities that have already reduced the 

rate of impingement may obtain credit 

towards the IM limit; 

• Developing a more tailored 

approach to protecting shellfish; 

• Creating alternatives for facilities 

with very low impingement levels or 

mortality rates; and 

• Providing additional clarity on 

species of concern as it pertains to 

demonstrating compliance with the IM 

limitations. 

In addition, as noted above, EPA also 

received a number of comments 

suggesting that it adopt a site-specific 

approach to reducing impingement 

mortality similar to the proposed 

approach for addressing entrainment, 

rather than uniform national 

requirements for IM and a site-specific 

approach for entrainment only. Should 

EPA decide to adopt uniform national 

performance or technology based 

standards for IM, as in the proposal, 

EPA is also considering a number of 

flexibilities, such as the site-specific 

approach for measuring compliance 

with IM limits detailed in section III.B.4 

below. EPA also received requests to 

meet with or hold conference calls with 

a number of stakeholders to discuss 

each of these approaches. The 

stakeholders with whom EPA met 

include the Utility Water Act Group 

(UWAG), the Clean Energy Group (CEG), 

the Cooling Water Intake Structure 

Coalition, the Association of Clean 

Water Administrators (ACWA), and 

Riverkeeper, as well as several 

individual firms and companies. 

Documentation of these meetings may 

be found in EPA’s docket (11–6500). 

The following sections present the data 

and suggested approaches EPA may use 

in developing the final rule. 

B. Alternative Approaches Under 

Consideration 

1. Site Specific Approach for Reducing 

Impingement Mortality 

EPA received a number of comments 

suggesting that it adopt a site specific 

approach for both IM and entrainment, 

rather than uniform national 

requirements for IM and a site-specific 

approach for entrainment only. At 

proposal, EPA 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 did not propose such an 

approach based on its preliminary 

determination at proposal that there are 

low cost technologies for impingement 

mortality that are available, feasible, and 

demonstrated for facilities on a national 

basis (76 FR 22174, Section VI.D.4). EPA 

recognizes both advantages and 

disadvantages of uniform national 

requirements. Such requirements would 

ensure a minimum level of IM reduction 

at all facilities. Moreover, if the final 

rule provides additional flexibility such 

as those measures discussed in Section 

III.B.3, it is EPA’s understanding, based 

on comments received and its own 

technical analysis, that a substantial 

majority of the industry would meet the 

IM limitations based on model 

technologies considered by the Agency 

(see Section III.B.3 for more 

information). However, uniform 

national requirements may also be 

challenging to implement on a national 

level, given the wide range of facility 

types and intake structure 

configurations covered by the rule. 

Commenters stated that in some cases 

the technologies available for a 

particular site may not be able to 

achieve the IM limitations. Commenters 

further stated that, in certain 

circumstances, the costs of impingement 

technologies may be unusually high due 

to site-specific factors. EPA is now 

considering whether to adopt an 

approach that would allow 

establishment of impingement controls 

on a site-specific basis either generally 

or limited to those circumstances in 

which the facility demonstrated that the 

national controls were not feasible. 

Under such an approach, the facility 

could demonstrate to the Director that 

site-specific factors warrant a sitespecific BTA for both entrainment and 

IM. The comprehensive study and other 

planning requirements could be 

enhanced to include information that 

the permitting authority would use to 

determine site-specific BTA for both 

entrainment and IM. The decision 

criteria for choosing BTA would be the 

same for IM and for entrainment, and 

EPA expects that permitting authorities 

and facilities would view the two 

together in an integrated planning and 

decision making framework. EPA 

requests comment on such an approach 

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1EPA also notes that the Phase I new facility rule 

requires low intake velocity (0.5 feet per second) in 

addition to flow reduction commensurate with 

closed cycle cooling. 

2 In a retrofit scenario, the facility’s pre-retrofit 

intake velocity would have been calculated for flow 

through multiple intake screens. After the retrofit, 

the volume of water withdrawn is significantly 

reduced, but is often still withdrawn through the 

same number of screens, leading to a significantly 

reduced intake velocity. 

3See, e.g., 69 FR 41576, July 9, 2004, Section 

VII.C.1. A reduction in flow leads to a 

corresponding reduction in impingement and 

entrainment. 

and further information on why uniform 

controls should not be adopted. 

2. Closed-Cycle Recirculating Systems 

EPA received a number of comments 

suggesting that a facility (or intake) 

employing a cooling tower as a closedcycle recirculating system (CCRS) 

should be exempt from IM 

requirements. EPA did not propose that 

a facility that fully employs cooling 

towers would automatically meet the IM 

standards for a number of reasons. First, 

the largest facilities with wet cooling 

towers still have the potential to 

withdraw significant volumes of water; 

in some cases, 100 MGD or more in 

makeup water alone. Second, at 

proposal, EPA did not provide an 

additional alternative that specifically 

established cooling towers as a preapproved technology for complying 

with the IM limits because data from 

EPA’s industry questionnaire and site 

visits indicate that most intakes 

providing cooling water to a cooling 

tower already met the proposed intake 

velocity limitation of less than or equal 

to 0.5 feet per second [DCN 11–6601].1

Further, based on the performance 

observed in site visits and 

questionnaires, EPA anticipated that a 

properly operated cooling tower 

installed as a retrofit would typically 

meet the proposed intake velocity 

limitation alternative.2 Thus, EPA 

anticipated all facilities employing wet 

cooling towers would already meet the 

IM limitations. However, commenters 

pointed out that not all facilities 

employing a wet cooling tower or some 

other CCRS as their original technology 

(i.e., not a retrofit) would necessarily 

have been designed to meet the 0.5 feet 

per second intake velocity threshold. 

Third, EPA has found several 

instances where a cooling tower has 

been installed but not operated to 

minimize the volume of water 

withdrawn. For example, EPA found in 

site visits that cooling water may be 

passed through a cooling tower to 

reduce the discharge temperature of the 

water, but little or no water was 

recycled back to the facility cooling 

system. In other words, the cooling 

tower was in place but cooling water 

was used in a single pass mode, with 

overall water use identical to a typical 

once-through cooling system, resulting 

in no reductions in impingement or 

entrainment. Operation in this manner 

is not feasible or in most cases even 

possible at a new facility because the 

intake at a new facility is only sized for 

supplying make-up and blowdown 

flows. Accordingly, in developing the 

existing facility definition for CCRS in 

the proposed rule, EPA began with the 

Phase I new facility rule definition of 

CCRS but added criteria to it in order to 

clarify the meaning of minimized makeup and blowdown flows. EPA proposed 

that a properly operated cooling tower 

is one that operates at a minimum 

cycles of concentration of 3.0 for 

freshwater and 1.5 for saltwater or 

brackish water. EPA solicited comment 

on this definition. 

EPA does not intend for facilities to 

install cooling towers solely for the 

purpose of meeting the IM 

requirements. In fact, EPA expects all 

facilities could comply with the 

proposed IM requirements without 

relying on closed-cycle cooling. 

However, consistent with EPA’s 

position that flow reduction is strongly 

correlated to reductions in impingement 

and entrainment,3 a properly operated 

cooling tower would provide significant 

reductions in IM. An optimized cooling 

tower would typically reduce water 

usage by 94.9 percent to 97.5 percent, 

reflecting salt water and fresh water 

sources respectively. Thus, in this case, 

such a cooling tower would exceed the 

level of performance required by the 

proposed IM limitations. 

EPA is now considering a further 

alternative compliance provision in the 

regulatory language that would allow 

the owner or operator of a facility to 

demonstrate compliance with the fish 

impingement mortality limitation 

though either defined technologies or 

studies that demonstrate the 

impingement mortality reduction 

performance of optimized travelling 

screens at a facility. This alternative 

could include a provision that would 

deem a facility in compliance with the 

IM limitations if the facility employed a 

CCRS (such as a wet cooling tower) that 

minimizes water withdrawals. In 

addition, EPA received many comments 

specific to the proposed definition of 

CCRS. 

Some commenters stated that while 

they may have been effectively 

operating as closed-cycle units for many 

years, they have concerns with their 

ability to comply with the new 

definition. We continue to look closely 

at these comments. EPA may consider 

revising the definition of CCRS to 

provide existing facilities flexibility in 

demonstrating they already have a 

properly operated CCRS, such as a 

minimum level of flow reduction or 

water usage, a minimum level of cycles 

of concentration, and/or a narrative set 

of requirements demonstrating sitespecific minimized make-up and 

blowdown flows. We request additional 

comment and supporting data, 

specifically including ways to define 

CCRS that accommodates those existing 

CCRS systems that are properly 

operated. EPA is also considering 

adopting the same definition of closed 

cycle cooling for the existing facilities 

rule that it used for the new facilities 

(and Phase II) rule. EPA acknowledges 

the argument that requirements for 

existing facilities should not be ‘‘more 

stringent’’ than the comparable 

requirements for new facilities. Some 

commenters have interpreted the 

proposed definition of closed cycle 

cooling to be ‘‘more stringent’’ than the 

definition used in the new facilities rule 

because it places additional restrictions 

on how a facility must be operated to be 

considered ‘‘closed cycle.’’ In the Phase 

II rule EPA included as a compliance 

option a demonstration that the facility 

‘‘[has] reduced or will reduce [its] flow 

commensurate with a closed-cycle 

recirculating system.’’ EPA requests 

comment on using similar language for 

a compliance option in this rule. 

Similarly, EPA is aware that a facility 

may obtain substantial flow reductions 

due to partial CCRS systems, variable 

speed pumps, seasonal operation, and 

other operational measures which result 

in reduced impingement. For example, 

a facility that reduces intake flow by 

half has reduced impingement by half; 

consequently, impingement mortality 

has been reduced by 50 percent. EPA is 

therefore considering adding in the final 

rule an opportunity for a facility to get 

credit for an equivalent reduction in 

impingement mortality when it reduces 

its intake flow (in comparison to a oncethrough cooling system). Thus, the 

regulatory language could provide for 

submission of such information as part 

of a performance study provided to the 

permit writer to demonstrate 

compliance with the impingement 

mortality limitations. Section 4 below 

describes how the credit for flow 

reductions could be used to determine 

compliance with the IM limitations. 

3. Measurement of Intake Velocity 

EPA proposed an intake velocity 

limitation corresponding to a facility’s 

design intake flow (DIF) as a design 

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standard for demonstrating compliance 

with the IM limitation. EPA’s record 

shows an intake velocity of 0.5 feet per 

second or lower provides similar or 

greater reductions in impingement, and 

therefore impingement mortality, than 

the BTA technology of modified 

traveling screens. Therefore EPA 

proposed the intake velocity limitation 

as a compliance alternative. EPA is 

aware that low intake velocity is 

sometimes confused with velocity cap 

technologies, and EPA would like to 

clarify that these concepts are not the 

same. Most velocity caps do not operate 

as a fish diversion technology at low 

velocities, and in fact are often designed 

for an intake velocity exceeding one foot 

per second. Thus a velocity cap will not 

typically meet the low intake velocity 

impingement mortality limitation. The 

velocity cap is located offshore and 

under the water’s surface, and uses the 

intake velocity to create variations in 

horizontal flow which are recognizable 

by fish. The change in flow pattern 

created by the velocity cap triggers an 

avoidance response mechanism in fish, 

thereby avoiding impingement. 

The proposed velocity IM limitation 

is based on DIF, thus the calculated 

velocity would reflect the maximum 

intake velocity as water passes through 

the structural components of a screen, 

measured perpendicular to the screen 

mesh. If the intake does not have a 

screen, EPA assumes that in most cases 

the maximum intake velocity is 

perpendicular to the opening of the 

intake. 

The following discussion explains 

how velocity would be determined, and 

thus compliance with the intake 

velocity limitation demonstrated. In 

general, EPA anticipates the first point 

of contact of the intake with the source 

water is the likely point of compliance, 

and would be the location for 

measurement of intake velocity. For 

example, some intakes use a channel or 

canal to transport the water to the 

facility. In those cases, the point of 

measurement is typically the channel or 

canal entrance, and not at the screen 

face of the facility’s forebay. Similarly, 

if a facility employs a velocity cap, the 

point of measurement is the velocity cap 

opening (as described above, most 

velocity caps would not have a velocity 

low enough to meet the 0.5 feet per 

second limitation, but some may). 

In the proposal, EPA clarified that DIF 

need not be the original design of the 

facility. For example, redundant pumps, 

emergency service water, and fire 

suppression systems could be excluded 

from a facility’s DIF. As an additional 

flexibility, EPA proposed to allow actual 

intake velocity to be used to 

demonstrate compliance with the 

maximum intake velocity requirement. 

In this case, the actual flow (i.e., 

volume) across the screen surface area 

would be used to calculate the 

maximum expected velocity through 

that screen. The proposed rule indicated 

that the maximum velocity must be 

achieved under all conditions, 

including during minimum ambient 

source water surface elevation and 

during periods of maximum head loss 

across the screens or other devices 

during normal operation of the intake 

structure. 

EPA received several comments 

regarding the velocity compliance 

alternative. For example, some 

comments suggested that the 

requirement to meet the intake velocity 

‘‘under all conditions’’ was overly 

conservative and may render this 

alternative technologically infeasible 

and/or economically impracticable. 

These comments provided data 

suggesting infrequent events with short 

durations can occur, during which time 

the intake velocity could increase to a 

rate greater than 0.5 feet per second. 

Examples of such events might include 

variations in river flows related to other 

uses of the water, weather related 

variations (e.g., reduced or increased 

precipitation) or flow changes related to 

dams. Some comments indicated these 

short duration events would not result 

in measurable harm related to increased 

impingement. Other comments point 

out that monitoring velocity at screens 

with low levels of screen blockages 

(such as the maximum of 15 percent 

allowable blockage presented in the 

proposed rule) is technically 

problematic with standard 3⁄8 inch mesh 

screens. It was further suggested that 

changes to pressure or flow as a means 

of measuring velocity are often 

indiscernible under such conditions. 

Industry comments also indicated that, 

in general, debris fouling is minimized 

through typical operations and 

maintenance procedures that must be 

performed to ensure that cooling water 

flow is not disrupted. For example, a 

facility would not allow conditions that 

could result in pump cavitations, other 

damage to circulating water pumps and 

their related systems, or anything else 

that could compromise cooling 

capabilities or affect plant reliability. 

EPA also received comments 

suggesting that a direct velocity 

measurement posed technical 

challenges. Some of these comments 

suggested that EPA provide the 

flexibility to calculate velocity based on 

other direct measurements, such as 

water depth, pressure differential, and 

plant intake flow. Based on the 

comments and data received in response 

to the proposed rule, EPA is actively 

considering changes to the intake 

velocity compliance alternative, as 

described below. 

Actual through-screen intake velocity 

can be measured directly. However, 

after further discussion with vendors, 

EPA is aware that some sites may have 

difficulty measuring through-screen 

velocity (DCN 11–6602). EPA is 

considering rule language clarifying that 

velocity may be calculated from a 

facility’s actual intake flow rate (AIF), 

the screen open face area, and the 

source water surface elevation at the 

time of flow measurement. (If there is no 

screen, the opening of the intake is the 

open face area.) The volumetric intake 

flow would be representative of routine 

operations, and may not include periods 

of zero flow. As with DIF, the point of 

measurement would be the point of first 

contact with the source water (e.g., the 

canal entrance, velocity cap opening, or 

shoreline screen face). 

To demonstrate compliance with the 

actual intake velocity criteria, EPA 

expects that a facility would record the 

average monthly velocity. This would 

be measured directly or calculated from 

the volumetric flow and source water 

surface elevation measured no less 

frequently than once per week reflecting 

normal operations. Such measurements 

would already reflect current water 

levels; therefore a separate evaluation of 

low flow conditions would be 

unnecessary. For example, low source 

water elevation over a three month 

period would be represented in the 

measured or calculated through-screen 

velocity and reflected in the reported 

monthly values. However, it was not 

EPA’s intention to penalize a facility in 

the event of unusual and irregular 

conditions. Thus, for example, in an 

unusual circumstance that causes the 

surface elevation to be low for just one 

day, it may be acceptable that this 

condition is not represented in the 

reported data because it does not reflect 

conditions that are likely to have a 

lasting impact on aquatic life. EPA 

solicits data on all of these assumptions 

and solicits comment on making this 

clear in the final regulatory text or 

preamble to the final rule. 

It is important to clarify that the 

velocity of water as it approaches the 

screen, or even immediately adjacent to 

the screen, is not equivalent to the 

through-screen velocity. The screen 

surface area decreases the area through 

which a given volume of water has to 

pass, therefore the velocity of the water 

increases as it passes through the 

screen. Because the velocity compliance 

option functions in two ways— 

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4Note EPA still intends to exclude data for fine 

mesh screens to avoid confusion over the status of 

‘‘impinged entrainables’’ (76 FR 22174, Section 

VI.B). 

protecting fish from injury due to being 

impinged on the screen’s surface, and 

allowing fish the opportunity to escape 

from the intake—EPA proposed that the 

point of compliance must be the 

velocity through the screen or intake 

structure and not at some point in front 

of the screen. Velocity at other points 

near the intake can vary based on many 

factors such as dead spots and hydraulic 

zones. However, as stated above, EPA 

understands that there may be technical 

challenges in some cases to measuring 

through-screen velocity. EPA will 

continue to consider comments from the 

proposal on this issue and may modify 

the monitoring requirements as 

appropriate. 

For the Phase I rule, EPA compiled 

data from three studies on fish swim 

speeds and found that a velocity of 0.5 

feet per second would protect 96 

percent of fish tested (66 FR 65256, 

December 18, 2001, Section V.B.1.b.1). 

EPA recognizes that the flow directly in 

front of a screen designed for 0.5 feet 

per second through-screen velocity will 

always be lower than the velocity 

standard (it may be as much as half the 

through-screen velocity in the case of a 

standard 3⁄8 inch screen). Therefore, 

EPA’s proposed velocity standard as 

measured through the screen surface 

already includes a margin of safety. This 

potentially allows more fish to sense the 

change in velocity and invoke an 

avoidance response before being 

impinged. Because the 0.5 feet per 

second limit as a through-screen 

measurement already includes a margin 

of safety, EPA’s current view is that 

additional criteria regarding screen 

blockage and related monitoring may be 

unnecessary. EPA solicits comment on 

the data and possible changes to the rule 

language for the intake velocity design 

standard to reflect such modifications. 

4. Impingement Mortality Limitations 

EPA proposed two ways in which a 

facility could demonstrate compliance 

with the impingement mortality 

limitations. The owner or operator of 

the facility could conduct monitoring to 

show the specified performance 

standards for impingement mortality of 

fish and shellfish have been met 

through use of any appropriate best 

performing technology, or they could 

demonstrate to the permitting authority 

that the intake velocity meets the 

specified design criteria. The 

performance standards for impingement 

mortality were proposed as monthly and 

annual limitations in impingement 

mortality, measured as a percent 

mortality not to be exceeded. These 

proposed standards were applicable to 

all existing facilities with a DIF greater 

than 2 MGD. EPA specifically solicited 

comments on how to give credit for 

existing technologies, and using those 

site-specific adjustments to implement 

the national uniform IM standard in a 

site-specific manner. The data and 

comments on this approach will be 

further discussed in sections 4 and 5. 

As explained in the proposed rule, 

EPA applied four general criteria when 

reviewing studies for acceptance in the 

impingement analyses: (1) The data 

must be specific to the technology under 

consideration; (2) impingement 

mortality must have been reported as an 

absolute number or a percentage of 

impinged fish that were killed; (3) the 

data must reflect technology 

performance that is representative of 

conditions that exist under actual 

facility operations, and; (4) reported 

values must be actual measurements, 

rather than estimates. EPA based the 

proposed limitations on the 

performance of modified traveling 

screens with a fish return system. 

Additional criteria were used to select 

data as the basis for impingement 

mortality calculations. The limitations 

were based on all life stages of fish 

collected or retained in a 3⁄8 inch sieve 

and held for a period of 24 to 48 hours 

to assess latent mortality. Further, EPA 

rejected studies that did not evaluate 

species typical of the location 

conducting the testing. At proposal, 

EPA found four data sets at three 

facilities in New York State that met 

these criteria; see Chapter 11 of the 

proposed Technical Development 

Document (TDD) for more information 

(DCN 10–0004; EPA–HQ–OW–2008– 

0667–1282). 

As described in section I of this 

notice, EPA received more than 80 

documents and studies, several of 

which include impingement studies. 

These additional studies represent 

facilities from a variety of geographic 

regions and waterbody types, and 

include a broader representation of 

species than those comprising the basis 

for the proposed rule limitations. EPA 

solicits comment on recalculating the 

impingement mortality limits using the 

new studies that meet EPA’s criteria as 

just described. EPA also solicits 

comment on whether such a single 

monthly and annual limit could be 

sufficiently protective for all facilities 

and also recognize site specific 

variations. In response to the comments 

and data regarding fragile species and 

abundant species, EPA may consider 

alternative procedures to determining 

the limits, such as giving equal weight 

to each species instead of to the total 

organism counts, or determining 

different limits for different groups of 

organisms. Further, EPA has received 

several studies that include counts of 

shellfish. EPA is considering whether 

the revised limitation should include 

both fish and shellfish. Accordingly, 

EPA may eliminate the specific 

requirement to employ technologies 

comparable in performance to barrier 

nets in order to protect shellfish. 

Alternatively, EPA is considering 

whether the need for additional 

impingement controls for shellfish can 

be determined by the Director based on 

site-specific assessments and 

consideration of the species of concern 

for each facility. 

In addition, EPA received information 

suggesting one or more of the 

acceptance criteria used to evaluate the 

studies for inclusion in EPA’s 

calculations were too stringent. For 

example, EPA received comments and 

data concerning the holding time of 24 

to 48 hours. Some studies suggest that 

shorter holding times may still be 

sufficient for purposes of determining 

latent mortality. Yet other information 

suggests comparable performance with 

3⁄8 inch square mesh and 1⁄4 by 1⁄8 inch 

mesh,4 and therefore EPA solicits 

comment on including either 

technology specification in the limit 

calculations. EPA is reviewing these 

data and may revise the criteria as 

appropriate. 

Many commenters suggested that EPA 

should consider modified traveling 

screens with a fish return as a preapproved technology as this technology 

forms the BTA basis of numeric limits. 

Alternatively, comments suggested that 

EPA should streamline the permitting 

process and reduce monitoring for 

facilities employing the candidate BTA 

technology. Commenters went on to say 

if this technology is the candidate BTA 

technology, then the proper design, 

installation, operation, and maintenance 

should be deemed compliant with any 

limit based on the technology. 

EPA still views properly operated, 

modified traveling screens as BTA. 

Accordingly, EPA has concluded that an 

alternative compliance option that 

would streamline the permitting process 

as well as provide for reduced 

monitoring requirements may be 

appropriate for facilities employing the 

model BTA technology. The BTA 

technology properly operated according 

to best management practices would 

then be deemed compliant with the IM 

standards. Under this approach, EPA 

might require the facility to provide sitemstockstill on DSK4VPTVN1PROD with PROPOSALS

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specific performance data to identify the 

operational conditions that would 

ensure that the technology is being 

operated appropriately. EPA’s current 

understanding suggests that two-years of 

data may be an appropriate amount to 

make this determination. Note the 

biological monitoring conducted as part 

of a performance study would not be 

used to demonstrate compliance with 

the limit, but rather would be used to 

help set operational parameters for the 

facility. The performance data could 

consist of a two year study focused on 

the operational conditions that optimize 

the proper design, installation, 

operation and maintenance of modified 

traveling screens with fish return 

systems. A facility could use relevant 

data already collected as part of the 

study, or conduct a new two-year 

performance study. Once these 

operational conditions have been 

identified, EPA would expect the permit 

writer to incorporate these operational 

parameters as conditions of the permit. 

The data from EPA’s technical survey 

shows at least 79 percent of existing 

power plants have traveling screens. 

EPA realizes not all facilities could 

retrofit existing traveling screens to 

modified traveling screens. In 

particular, the installation of a fish 

handling and return system is not 

feasible at some facilities. However, 

EPA expects the majority of those 

facilities currently employing traveling 

screens would modify their traveling 

screens to comply with the IM 

limitations. Therefore, EPA expects 

these same facilities could take 

advantage of the reduced monitoring 

requirements and the streamlined 

compliance associated with this 

alternative. Further, EPA’s data show 15 

percent of facilities meet the low intake 

velocity limitation. Combining all of the 

IM limitation alternatives, EPA 

anticipates more than 90 percent of the 

facilities could take advantage of design 

standards rather than choosing to 

comply with the numerical IM 

limitations if EPA adopted this 

approach. EPA expects some facilities 

would explore innovative and creative 

approaches taking site-specific 

characteristics of their facility into 

account to provide performance 

comparable to the BTA technology, and 

EPA would maintain the numerical IM 

limitation to provide for such 

flexibilities. EPA solicits comment on 

providing this compliance flexibility 

and data on these assumptions. 

Under this approach, as long as the 

owner or operator of the facility 

complies with the specified operational 

conditions, the impingement mortality 

limitations would be deemed to have 

been met. Subsequently, the owner or 

operator would not have to conduct any 

biological monitoring to show 

compliance with the impingement 

mortality limitations. In subsequent 

permit terms, and in the absence of 

major changes to the operation of the 

intake structure or the biology of the 

source water, EPA expects the Director 

would waive any further requirement 

for a study or compliance monitoring for 

the facility. EPA is considering 

modifying the regulations to provide 

specifically for such a waiver. If EPA 

were to adopt these revisions in the 

final rule, EPA would make 

corresponding changes to the permit 

application requirements. EPA solicits 

comment on this alternative approach 

for compliance with IM standards. The 

Agency also takes comment on the 

appropriate level of data for assuring 

that the technology is operated suitably 

to minimize adverse environmental 

impact. For example, EPA solicits 

comment on whether some monitoring 

of operational parameters should be 

required in lieu of biological 

monitoring, whether EPA should 

specify some minimum set of 

operational parameters, or whether such 

a determination is best left to the 

discretion of the permitting authority. 

EPA also received comments 

regarding the need for separate 

requirements to address entrapment. 

Some commenters indicated that the 

requirements in the proposed rule 

would not be feasible to implement at 

all facilities. EPA is considering these 

comments and requests specific 

information on issues related to the 

feasibility of preventing entrapment, 

including examples of where it is 

impractical or infeasible to return 

entrapped organisms to the waterbody 

or prevent their entrapment in the first 

place. EPA will consider this 

information as it finalizes the rule. 

5. Credit for Existing or Newly Installed 

Technologies 

EPA’s objective in establishing the IM 

limitations is to minimize adverse 

environmental impacts by ensuring that 

fewer aquatic organisms such as fish 

and shellfish are killed by cooling water 

intake structures. The limitations are 

based upon the model best technology 

available which reduces impingement 

mortality of fish and shellfish. As EPA’s 

proposal noted, this model technology 

does not include, nor account for, 

elements of impingement reduction 

technologies already installed at some 

facilities. There are many cases where 

facilities have installed and continue to 

operate technologies to reduce 

impingement. These technologies may 

have been approved by the appropriate 

permitting authorities, including 

required provision of supporting studies 

and assessments of the impact of the 

plant on the local aquatic environment. 

However, these technologies may not 

have been designed in such a way that 

they would meet the proposed IM 

requirements, particularly the monthly 

and annual IM numeric limits. Further, 

the structure and design of the proposed 

rule IM numeric limits make accounting 

for the benefits of these existing 

technologies very difficult. For example, 

EPA received new information showing 

diversion technology at one specific 

facility reduced impingement of one or 

more species by more than 90 percent, 

and consequently, fewer fish would 

have been killed as a result of 

impingement mortality. However, the 

limitations are strictly based upon the 

performance of the model technology 

and were derived by applying statistical 

methods to observed data from facilities 

with the model technology. 

In the proposal, EPA intended that 

facilities would receive credit for both 

pre-existing and/or newly installed 

technologies when demonstrating 

compliance with the statistically 

derived IM limitations. After reviewing 

the comments, EPA is providing 

additional discussion of how reductions 

in impingement may be used to comply 

with the IM requirements. In meeting 

EPA’s overall objective, a facility should 

be able to take credit for reducing the 

number of organisms killed by a CWIS 

regardless of the technology used. If the 

alternative provision were to provide 

credit for other technologies, the facility 

would need some way to demonstrate 

that the technologies result in no more 

impinged fish being killed than would 

have resulted from the model 

technology (modified traveling screens) 

alone. With these alternative provisions 

that EPA is considering, it is possible 

that a facility might be able to meet the 

limitations by means other than 

installing and operating the model 

technology. EPA examined the effect of 

alternative provisions in demonstrating 

compliance with the annual average 

limitation and the monthly average 

limitation. 

In establishing the IM limitations, 

EPA seeks to minimize impingement 

mortality on an ongoing basis, each 

year, at a level that is achievable for a 

facility. Both the annual average limit 

and monthly average play an important 

role in ensuring that facilities optimize 

performance of their technology. 

Compliance with the monthly average 

limitation is demonstrated by 

comparing the average IM value from 

the samples collected during each 

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month (or other 30-day period 

designated by the Director). At the end 

of the 12-month period, the facility 

calculates the annual average as the 

arithmetic average of the monthly 

averages during that period. The facility 

would then compare its annual average 

to the annual average limitation to 

demonstrate compliance. 

With the alternative provisions that 

the Agency is considering, a facility 

would provide use data from long-term 

(e.g., 1–2 year) performance studies and/ 

or calculation baseline assessments to 

quantify the impingement and/or IM 

reductions relative to what would be 

expected from the model technology 

alone. Because monthly averages are 

used to demonstrate compliance with 

both monthly average limitation and 

annual average limitation (i.e., monthly 

averages are averaged to produce the 

annual average), facilities would 

incorporate estimated reductions into 

the monthly average IM percent 

calculations. To calculate an adjustment 

using only data for a particular month 

(e.g., June) would require data for a very 

long term, such as 4-years or more. EPA 

would not require, nor recommend, this 

level of refinement in the calculations 

for two reasons. First, EPA does not 

expect that many facilities would have 

such long-term data available. Second, 

the calculations for each month would 

require a different set of adjustments 

that would create additional, 

unnecessary, complications for the 

facility and permit authority. To 

simplify the adjustment procedures, a 

facility would estimate the monthly 

reduction using the total reduction 

divided by the number of months in the 

study. The facility then would use this 

estimated monthly value to adjust the 

observed numbers of impinged fish and 

killed fish in the IM percent 

calculations for each and every month. 

Depending on the technology used, the 

reductions would be to the number of 

impinged fish and/or number of 

impinged fish that do not survive the 

holding time (‘‘killed fish’’). 

If the technology reduces 

impingement, the alternative provision 

calculations would increase the number 

of the observed impinged fish by the 

estimated number that would have been 

impinged without the technology. The 

monthly average calculation then would 

compare the observed number of killed 

fish to the larger total number of 

impinged fish (i.e., the sum of observed 

and estimated number reduced by 

technology). This comparison would 

result in a lower IM rate than the 

unadjusted, observed value. 

The adjustments to the monthly 

average calculations, in turn, affect the 

value of the annual average calculated 

by the facility, because the facility’s 

annual average is set equal to the 

arithmetic average of the monthly 

averages. In other words, the facility’s 

annual average is solely based upon the 

values of the monthly averages. Thus, 

when the monthly averages are adjusted 

downward by the alternative provisions, 

the annual average also will be adjusted. 

The following example illustrates 

how the alternative provisions would 

adjust for flow, location, and other 

technologies in demonstrating 

compliance with the IM monthly 

average limitations. The example uses 

values that simplify the calculations to 

better illustrate the adjustments, and are 

not intended to reflect values that EPA 

expects at any facility. To simplify the 

example further, the facility has only 

fish and does not have shellfish in its 

source waters. EPA also recognizes that 

facilities often examine the combined 

effect of two or more technologies (e.g., 

deterrents and offshore location) within 

a single study. In applying the 

alternative provision, the facility could 

use the outcomes associated with the 

combined performance of multiple 

technologies. However, for a more 

complete example, EPA has chosen a 

hypothetical facility that examined each 

change in a separate study. 

The hypothetical facility is located at 

an offshore location, has a velocity cap, 

and installed variable speed drives. For 

the purposes of this example, assume its 

permit requires that it collect samples 

once a week and evaluate the impinged 

fish after 24 hours. The facility has just 

completed sampling at the forebay each 

week during June, and has identified the 

counts of the facility specific species of 

concern as follows. The four samples 

had 1,500, 1,000, 500, and 1,000 

impinged fish, for a total of 4,000 

impinged fish. During the 24-hour 

holding period, 400, 100, 150, and 350 

fish died, for a total of 1,000 dead fish. 

The facility then calculated the 

forebay’s IM as 25 percent, using the 

equation provided in the proposed rule 

preamble (76 FR 22174, Section IX.F.1) 

as follows: 

To adjust the observed percent IM for 

its offshore location and velocity cap, 

the facility first extracts information 

from its previously conducted studies 

related to performance and calculation 

baseline. For the offshore location 

adjustment, fish density and flow data 

show the offshore location reduces the 

rate of impingement for all species of 

concern by 30,000 fish annually, or, on 

average, 2,500 each month (i.e., 

calculated as 30,000 fish divided by12 

months). For the velocity cap, 

performance data show the velocity cap 

reduces impingement of fish and 

shellfish by 24,000 organisms annually, 

or a monthly average of 2,000 

organisms. Therefore, the facility has 

reduced impingement of all species of 

concern, on average each month, by 

4,500 organisms (i.e., sum of 2,500 for 

offshore location and 2,000 for velocity 

cap). The facility then applies the 

reduction to the denominator of the 

percent IM calculations as follows: 


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34324 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 

In summary, calculating percent IM at 

the forebay yields a 25 percent IM, and 

then applying the alternative provisions 

for other technologies shows the 

effective percent IM is 12. Next, to 

adjust for the variable speed drives, the 

facility has determined from 

engineering and design calculations that 

the volume of cooling water flow has 

been reduced by 11 percent. The 

volume of reduced flow multiplied by 

the density of fish near the intake is 

calculated, and the facility projects that 

the reduced flow excludes, on average 

for each month, an additional 1,100 fish 

from impingement. Then the facility 

would apply the reduction in impinged 

fish to the denominator, as follows: 

This example is intended to illustrate 

how facilities would obtain credit for 

existing technologies. While this 

example includes a velocity cap, it does 

not imply that a velocity cap is the 

appropriate technology for all facilities. 

EPA’s data shows in most cases, a 

properly located velocity cap alone 

would be sufficient to achieve the 

limitations. In the case where a velocity 

cap (or any other technology) alone 

would not be sufficient to meet the 

limitations, EPA expects that each 

facility would identify and install a 

suite of cost effective technologies to 

achieve the IM requirements (i.e., 

variable speed drives in this example). 

EPA solicits comment on whether this 

approach reasonably addresses 

commenters’ request that EPA identify 

velocity caps to be a pre-approved BTA 

for IM by appropriately taking into 

account facilities’ existing technologies 

in determining whether a facility meets 

the proposed IM requirements. In 

summary, the hypothetical facility 

would observe a 25 percent IM rate for 

June; which would then be adjusted 

downward to 12 percent for its offshore 

location and velocity cap; and then 

further adjusted downward to 10 

percent for its flow reduction. The value 

that the facility would report for 

compliance purposes would be the 10 

percent value. At the end of the 12- 

month monitoring period, the facility 

also would use the 10 percent value for 

that month with the other 11 adjusted 

monthly values to calculate the annual 

average IM rate. In the final rule, EPA 

may decide to include the equations for 

calculating IM and the alternative 

provision in the rule language to 

provide additional clarity. EPA solicits 

comment on how frequently a facility 

would need to calculate credit for 

existing technology after the initial 

demonstration. 

Comments from some Phase II 

facilities indicate facilities may have 

already collected data and performed 

baseline calculations required as part of 

the 2004 Phase II rule. While EPA 

identified considerable challenges 

implementing calculation baseline in 

the 2011 proposed rule (76 FR 22174, 

Section III.B.1), these commenters went 

on to suggest that a facility should have 

the option to use these data and 

analyses in demonstrating compliance 

with the IM limitations. In many cases 

these data are sufficient to show their 

site specific impingement rates as well 

as the performance of any technologies 

installed at their site. Therefore, EPA is 

considering a provision that would 

allow existing facilities to use data 

already collected as part of a sitespecific analysis of calculation baseline 

to demonstrate compliance with the 

alternative provisions. EPA solicits 

comment on these data and possible 

changes to the rule language for 

providing credit in reductions in 

impingement calculations to 

demonstrate compliance with the 

annual average and monthly average IM 

limitations. 

EPA recognizes that it may be 

challenging for a facility to determine in 

some cases what its calculation baseline 

should be, particularly if it has had a 

technology in place for many years. 

Thus it may be difficult to establish 

precisely what the performance of a 

technology is relative to a situation in 

which the technology was not employed 

(a situation that may not have existed at 

the facility for a long time). EPA is thus 

also considering identifying additional 

technologies (which could include 

velocity caps) as satisfying the IM 

performance standards without having 

to conduct the type of study and 

calculation discussed in this example. 

EPA requests comment on this 

approach, on what technologies could 

be deemed compliant under this 

approach, and on what requirements or 

demonstrations would be appropriate to 

establish the technology as a 

compliance alternative. EPA also 

requests comment on whether the final 

rule should allow permitting authorities 

to approve additional technologies as 

satisfying the IM requirements, and if 

so, what specific demonstrations or 

procedures would be appropriate for 

permitting authorities to use in making 

such determinations. 

6. Facilities With Low Impingement 

Rates 

EPA received data showing some 

facilities have very low impingement 


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Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 34325 

rates. This is usually due to intake 

location for the specific waterbody from 

which water is withdrawn for cooling, 

or the implementation of other 

technologies. For example, EPA is aware 

of a facility located on the inside bend 

of a large freshwater river which 

seasonally employs large mesh barrier 

nets. The facility impinges an average of 

several fish per month. In another case, 

the intake is located downstream of a 

dam, and the fish avoid the cold water 

coming from the dam. Recent data show 

the facility impinged one fish over two 

24 hour periods. Under such low 

impingement rate conditions, 

technology performance is unlikely to 

be meaningfully evaluated. Moreover, in 

EPA’s view, these facilities are not 

likely having an adverse effect on 

aquatic life. It is probable that in most 

cases requiring additional technology 

would not be necessary to further 

minimize adverse environmental 

impacts. 

EPA has received several suggestions 

on how to establish requirements for 

such facilities with very low 

impingement rates. One suggested 

approach was to establish an exemption 

based on an annual limit on biomass 

impinged. EPA found a small number of 

studies have available performance data 

that are expressed as biomass, and the 

amount of data within these studies are 

generally limited (see proposed TDD, 

Chapter 11, Appendix B). Another 

approach that would be easier to 

implement is to establish an annual 

limit on the absolute number of fish that 

may be impinged. Facilities meeting this 

limit on the rate of impingement would 

be deemed in compliance with the IM 

limitations, and therefore would not be 

required to install additional 

technologies. In other words, the 

existing technology in place would be 

deemed BTA for that facility. 

Alternatively, if EPA were to consider 

the number of fish killed (rather than as 

a percent of impinged fish) as a 

limitation for the final rule, EPA might 

statistically model the data to derive the 

limit, or EPA may select the minimum 

observed value (see TDD, Chapter 11, 

Appendix D for further discussion of the 

methodology). 

Comments by some state agencies 

indicated concern that such an 

approach does not fully consider the 

affected species. For example, while the 

total number of impinged fish that die 

might be low, they might all be species 

of concern, or may include a locally 

important species under NOAA’s NMFS 

conservation watch status. If EPA 

adopts this approach, EPA might need 

to provide certain safeguards to ensure 

adequate protection of specific fish 

populations. 

EPA is considering authorizing the 

permit writer to determine that a facility 

using a given technology complies with 

the IM requirements because it does not 

impinge greater than some absolute 

number of fish. Such a provision would 

then authorize the Director to make a 

site-specific determination that the 

facility is already employing BTA. 

Under this approach, a facility 

impinging fewer than the specified 

number of organisms might submit 

some minimum amount (e.g., two years) 

of impingement rate or impingement 

mortality data, including a 

demonstration that no threatened and 

endangered (T&E) or other protected 

species are identified in the vicinity of 

the intake. Additional factors the 

Director should consider might include 

any impacts to significant recreational 

or commercial fisheries, a review of 

locally important aquatic life such as 

those identified by NOAA’s NMFS 

regarding local or state conservation 

status of any species of concern, value 

of impinged species, prevalence of 

nuisance or invasive species, or other 

local conditions. The Director could 

then make a determination that the very 

low impingement rate is BTA due to the 

facility’s existing technology. EPA 

solicits comment on the data and 

approaches under consideration for 

facilities that already have very low 

impingement rates. EPA also solicits 

comment on whether EPA should 

identify in the final rule a specific upper 

limit on what could be considered a 

very low level of impingement 

mortality, or if this should be left to the 

discretion of the permitting authority. In 

addition, as noted above, EPA is 

soliciting comment on 

recommendations it received following 

proposal that EPA consider a regulation 

under which impingement requirements 

(like entrainment requirements) would 

be established on a site-specific basis. If 

EPA adopted the approach proposed for 

entrainment, the permit writer could 

weigh site-specific costs and benefits, 

among the factors being assessed, in the 

decision whether to require further 

impingement controls. EPA also 

requests comment on a hybrid approach 

under which the permittee could choose 

among several compliance options that 

might include both meeting an IM 

performance standard or requesting a 

site-specific determination of BTA for 

both impingement and entrainment, if 

the benefits of meeting the performance 

standard did not justify the costs on a 

site-specific basis. This could be 

structured in a manner similar to the 

‘‘cost-benefit variance’’ that was 

included as a compliance option in the 

final Phase II rule. EPA requests 

comment on all of these approaches. 

7. Species of Concern 

In recognizing the variability in each 

facility’s source water characterization, 

particularly with respect to the specific 

species and life stages of fish and 

shellfish, EPA proposed the IM 

standards should be applied to sitespecific species of concern. EPA 

intended this provision to provide 

flexibility to the Director to focus the 

technology based requirements on those 

species deemed important at a given 

site. Some commenters indicated that 

many states have already determined 

the species of concern as inclusive of 

forage fish, fragile fish, and abundant 

representative indicator species. 

Therefore, commenters indicated EPA’s 

intended flexibility might not work. 

In this notice, EPA is clarifying the 

proposed rule approach to species of 

concern is intended to allow the 

Director to prioritize certain fish and 

shellfish in a site-specific manner. EPA 

generally intended that the highly 

abundant, fecund forage fish species 

(such as the clupeid species) would not 

be considered species of concern. 

However, the Director could determine 

such species are species of concern if 

they were considered: Important 

migratory or commercial species; 

threatened or endangered; or of 

insufficient abundance in the source 

water to support the growth and 

abundance of those species that prey 

upon them. To provide the Director 

with the appropriate data to make such 

a determination, and to avoid the 

unnecessary burden of requiring a 

facility to comply with the IM 

limitations for all species, EPA is 

considering a regulatory provision that 

would distinguish representative 

indicator species (RIS) from the sitespecific species of concern. Under such 

an approach, a facility may be required 

by the Director to monitor for those 

species identified as RIS, but the IM 

limitations would only be applicable to 

the species of concern. The species of 

concern would not necessarily include 

all RIS. EPA solicits comment on the 

data and approaches under 

consideration here that best address the 

variability in species and life stages of 

fish and shellfish. Alternatively, EPA 

takes comment on the suggested 

addition of defined species of concern, 

explicitly identifying those specific 

species that are not subject to the IM 

limitations. 

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34326 Federal Register / Vol. 77, No. 112 / Monday, June 11, 2012 / Proposed Rules 

III. General Solicitation of Comment 

EPA encourages public participation 

in this rulemaking and requests 

comments on this notice of data 

availability supporting the proposed 

rule for cooling water intake structures. 

EPA invites all parties to coordinate 

their data collection activities with the 

Agency to facilitate mutually beneficial 

and cost-effective data submissions. 

Please refer to the FOR FURTHER

INFORMATION CONTACT section at the 

beginning of this preamble for technical 

contacts at EPA. 

To ensure that EPA can properly 

respond to comments, the Agency 

prefers that commenters cite, where 

possible, the paragraph(s) or sections in 

the document or supporting documents 

to which each comment refers. Please 

submit copies of your comments and 

enclosures (including references) as 

specified in the ADDRESSES section at 

the beginning of this preamble. 

Dated: May 31, 2012. 

Nancy K. Stoner, 

Acting Assistant Administrator, Office of 

Water. 

[FR Doc. 2012–14153 Filed 6–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 412, 413, 424, 476, and 

489 

[CMS–1588–CN] 

RIN 0938–AR12 

Medicare Program; Hospital Inpatient 

Prospective Payment Systems for 

Acute Care Hospitals and the LongTerm Care Hospital Prospective 

Payment System and Fiscal Year 2013 

Rates; Hospitals’ Resident Caps for 

Graduate Medical Education Payment 

Purposes; Quality Reporting 

Requirements for Specific Providers 

and for Ambulatory Surgical Centers; 

Corrections 

AGENCY: Centers for Medicare and 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule, correction. 

SUMMARY: This document corrects 

technical and typographical errors in 

the proposed rule that appeared in the 

May 11, 2012 Federal Register entitled 

‘‘Medicare Program; Hospital Inpatient 

Prospective Payment Systems for Acute 

Care Hospitals and the Long-Term Care 

Hospital Prospective Payment System 

and Fiscal Year 2013 Rates; Hospitals’ 

Resident Caps for Graduate Medical 

Education Payment Purposes; Quality 

Reporting Requirements for Specific 

Providers and for Ambulatory Surgical 

Centers.’’ 

FOR FURTHER INFORMATION CONTACT: Tzvi 

Hefter, (410) 786–4487. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In FR Doc. 2012–9985 of May 11, 

2012 (77 FR 27870), there were a 

number of technical errors that are 

identified and corrected in the 

Correction of Errors section of this 

correcting document. 

II. Summary of Errors 

A. Errors in the Preamble 

On pages 27871 and 27872, we 

inadvertently omitted a number of 

acronyms from the list of acronyms. 

On page 27938, in our discussion of 

the fiscal year (FY) 2013 applications for 

new technology add-on payments, we 

made typographical errors regarding the 

drug combination administered during 

the treatment of methotrexate (MTX)- 

induced renal dysfunction. 

On page 28021, we inadvertently 

cited the incorrect timeframe for when 

certain long-term care hospitals (LTCHs) 

and LTCH satellite facilities must 

comply with § 412.534 and § 412.536. 

We also cited the incorrect timeframe 

for when those LTCHs and LTCH 

satellite facilities would be under the 

proposed moratorium on the 25-percent 

adjustment threshold policy. 

On page 28036, we made several 

typographical errors in our discussion of 

commenters’ beliefs regarding the 

hospital inpatient quality reporting 

program (HIQR) and five Agency for 

Healthcare Research and Quality 

(AHRQ) measures. 

On page 28039, in our discussion of 

the HIQR proposed new claims-based 

measure for the FY 2015 payment 

determination for hip/knee 

complication, we inadvertently repeated 

a sentence. 

On page 28041, in our discussion of 

the HIQR proposed new claims-based 

measure for the FY 2015 payment 

determination for hip/knee readmission, 

we made a typographical error in a 

section heading. 

On page 28072, in our discussion of 

the total amount available for valuebased incentive payments under the 

Hospital VBP Program for a fiscal year, 

we inadvertently included estimated 

reductions to the base operating DRG 

payment amounts for Maryland 

hospitals in the calculation of the total 

estimate for FY 2013. 

On pages 28085 and 28086, in our 

discussion of the proposed performance 

standards for the Hospital Value-Based 

Purchasing (VBP) Program, we 

inadvertently omitted data from the 

table entitled ‘‘Proposed Performance 

Standards for the FY 2015 Hospital VBP 

Program Clinical Process of Care and 

Outcome Domains, and the Medicare 

Spending per Beneficiary Measure.’’ 

On pages 28107, 28108, and 28127 in 

our discussion of the Inpatient 

Psychiatric Facilities Quality Reporting 

Program (IPFQR), we made technical 

errors in our description of the IPF 

facility enrollment. 

B. Errors in the Addendum 

On page 28143, we made errors in our 

discussion of the proposed outlier fixedloss cost threshold for FY 2013. 

On pages 28144, 28148, 28149, 28150, 

28151, 28159, and 28178, we made 

technical and typographical errors in 

our discussion of the proposed outlier 

adjustment factors which affected the 

proposed FY 2013 Puerto Rico (specific) 

operating standardized amount and 

capital Federal rates (national and 

Puerto Rico). Specifically, we 

inadvertently applied the incorrect 

adjustment factors to the operating and 

capital cost-to-charge ratios (CCRs) from 

the Provider-Specific File (PSF) when 

performing the calculation of the FY 

2013 outlier fixed-loss cost threshold for 

the proposed rule. The correction of this 

error resulted in a decrease in the 

proposed outlier fixed-loss cost 

threshold of approximately $1,000. 

Under our established methodology for 

calculating the outlier fixed-loss cost 

threshold, which we have proposed to 

continue to use for FY 2013, the 

corrected proposed outlier fixed-loss 

cost threshold continues to result in 

operating outlier payments being 

projected to be 5.1 percent of total 

operating payments. However, a 

decrease in the proposed outlier 

threshold results in an increase of the 

Puerto Rico (specific) operating outlier 

payments and capital (national and 

Puerto Rico) outlier payments. This is 

because a lower outlier threshold allows 

more cases to qualify as outlier cases 

and results in higher outlier payments 

to such cases. Because outlier payments 

are budget neutral, a larger reduction 

(that is, an increase in the outlier 

offsets) to the Puerto Rico and capital 

(national and Puerto Rico) rates is 

necessary. Therefore, the application of 

the corrected Puerto Rico and capital 

outlier offsets (national and Puerto Rico) 

lowers the proposed FY 2013 Puerto 

Rico (specific) operating standardized 

amount and capital Federal rates 

(national and Puerto Rico). 

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