## Response to Public Comment : National Pollutant Discharge Elimination System Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Fa cilities and Amend Requirements at Phase I Facilities (40 CFR Parts 122 and 125)

Docket # EPA

- HQ -OW- 2008

- 0667

U nited States E nvironmental Protection Agency 1200 Pennsylvania Avenue N .W. Washington, DC 20460 May 1 9 , 2014

### Contents

Introduction A. Methodology EPA Used to Sort and Code Public Comment Letters B. Locating Your Comments and EPA’s Response in the Final Document C. Duplicates, Attachments, Mass Mail Campaigns, and Keyword Searches

D. Disclaimer

Essay 1: General Support of the 316(b) Existing Facilities Rule ...............................................1

Essay 2: General Opposition of the 316(b) Existing Facilities Rule ..........................................2

Essay 4: Background Information about Commenter ...............................................................3

Essay 5: Form Letters 1- 14, Addressing Form Letters from the Alliance for the Great Lake s, Consumer Energy Alliance, Natural Resources Defense Council, Environmental Law and Policy Center, Sierra Club, National Wildlife Federation Action Fund, Food and Water Watch, Surfrider, Riverkeeper, and Other Unknown Organizations .............................................................................................................................5

Essay 6: Comment Per iod, Schedule for Final Rule ...................................................................7 EPA Provided an Adequate Opportunity to Comment ........................................................................... 7 EPA Complied with EO 13563 .............................................................................................................. 8

Essay 7: Seafood Processing, Offshore Oil and Gas, and LNG Terminals ............................10

Essay 8: Purpose of the NODAs, Introduction ..........................................................................12 Notice of Data Availability Related to Impingement Mortality Control Requirements ....................... 12

Essay 10: Legal Authority, Purpose, and Background ............................................................13

Essay 11: Proposed Amendments Related to the Phase I Rule ...............................................23

Introduction .......................................................................................................................................... 23

Phase I .................................................................................................................................................. 23 Restoration for Phase II and Existing Facilities ................................................................................... 24

Essa y 12: New Data Used In Developing the Rule ....................................................................28

Essay 13: Possible Differences between Generators and Manufacturers ...............................30

Introduction .......................................................................................................................................... 30 Background/History ............................................................................................................................. 31

iAnalysis of Information for the Existing Facilities Rule ...................................................................... 31

Essay 14: Scope and Applicability ..............................................................................................38

Introduction .......................................................................................................................................... 38 General Applicability ........................................................................................................................... 38 Clarify Applicability /Exclusions .................................................................................................. 38 Point of Compliance ...................................................................................................................... 42 Definition of Existing Facility ....................................................................................................... 45

CWIS ............................................................................................................................................. 46 Definition of Cooling Water Intake ...................................................................................................... 46 Twenty -five (25) Percent Water Used for Cooling Purposes ........................................................ 46 Scope of Exemption for Certain Waters ........................................................................................ 48 Applicability to Point Source Discharges ...................................................................................... 51 Least Energy Demanding Source of Water.................................................................................... 52 Exemptions .................................................................................................................................... 52 Public Water Systems .................................................................................................................... 53

Waters of the United States ............................................................................................................ 55 Independent Supplier ..................................................................................................................... 56 Impoundments/Definition of CCRS ..................................................................................................... 57

Closed

- Cyc le Cooling Definition is Too Narrow .......................................................................... 57

Man

- Made/Managed Impoundments ............................................................................................. 59

Intermittent Flow in a Closed

- Cycle Recirculating System ........................................................... 61 Additional Suggestions on Requirements for Closed- Cycle Recirculating Systems ..................... 61

Flow Thresholds ................................................................................................................................... 62 Two MGD Applicability Th reshold ............................................................................................... 62 Use of AIF for Entrainment Characterization Study ..................................................................... 71 Applicability of Rule to Offshore Oil and Gas Facilities, Seafood Processing Vessels or LNG Import Terminals .................................................................................................................. 73 Definition and Applicability of New Unit ..................................................................................... 74

Other Comments ............................................................................................................................ 77

Essay 15: EPA’s Approach to Establishing Best Technology Available 316(b) Standards for New Units and Existing Units ........................................................................78

Introduction .......................................................................................................................................... 78 Overall Approach to BTA for Existing Units ....................................................................................... 78 Approach to BTA for Entrainment at Existing Units/Facilities ........................................................... 79

iiClosed

- Cycle Recirculating Systems ............................................................................................. 79 Approach to BTA for Entrainment at New Units Constructed at Existing Facilities .................... 84 Other Technologies for BTA for Entrainment at Existing Facilities ............................................. 84 Approach to Impingement BTA at Existing Units/Facilities ............................................................... 87 Role of Costs and Benefits in Determining BTA ................................................................................. 90

Cost

- Benefit/Benefits Must Justify the Costs/Maximize Net Benefits for the Final Rule ............. 90

Consideration of Costs and Benefits on a Site- Specific Basis in Establishing Entrainment Controls - General .......................................................................................................................... 93 Comments Specific to Cost ............................................................................................................ 95

Benefits .......................................................................................................................................... 97

Other Elements of BTA ........................................................................................................................ 98

Variances ....................................................................................................................................... 98 Availability and Flexibility of Rule Requirements ........................................................................ 99

Essay 16: Requirements for Impingement and Entrainment ................................................105

Introduction ........................................................................................................................................ 105 Adverse Environmental Impact (AEI) ................................................................................................ 105 Impingement Requirements................................................................................................................ 108 Option Selection .......................................................................................................................... 110 Compliance Alternatives .............................................................................................................. 111 Entrainment Requirements ................................................................................................................. 120 Technologies to Address Impingement and Entrainment ................................................................... 122

Essay 16A: Impingement Mortality Performance Standards ...............................................125

Introduction ........................................................................................................................................ 125 Justification for the Proposed Standards ............................................................................................ 126

Alternative Forms of the Standards .................................................................................................... 128

Data Selection ..................................................................................................................................... 131 Comment Summary ..................................................................................................................... 131 EPA’s Reevaluation of Data and Response to Data Selection Comments .................................. 132 Statistical Methodology ...................................................................................................................... 136 Comment Summary ..................................................................................................................... 136 EPA’s Reevaluation of the Statistical Methodology and Response to Statistical Comments .................................................................................................................................... 137 Achievability and Compliance Issues ................................................................................................ 140

Public Review ..................................................................................................................................... 143

iiiEssay 17: Intake Velocity ..........................................................................................................145

Introduction ........................................................................................................................................ 145 Background ........................................................................................................................................ 145 Previous Comments on Intake Velocity ....................................................................................... 145 Previous Litigation on Intake Velocity ........................................................................................ 146 EPA’s Response ................................................................................................................................. 146 Availability/Feasibility ................................................................................................................ 146

Derivation/Technical Framework ................................................................................................ 149 Implementation ............................................................................................................................ 151

Essay 17A: Closed- Cycle Recirculating Cooling .....................................................................154

Introduction ........................................................................................................................................ 154 Impoundments .................................................................................................................................... 154 Cooling Towers .................................................................................................................................. 156 Wet Cooling ................................................................................................................................. 156 Dry Cooling ................................................................................................................................. 157 Hybrids ......................................................................................................................................... 158

Definition of Closed- Cycle Recirculating Cooling ............................................................................ 158

Flow Reduction ............................................................................................................................ 158 Cycles of Concentration ............................................................................................................... 160

Intermittent Flow ......................................................................................................................... 162 Emergency Flows ........................................................................................................................ 162

Performance of CCRS ........................................................................................................................ 162

Demonstration Status ................................................................................................................... 162 Comparison to Other Technologies ............................................................................................. 163 Evaporative Losses ...................................................................................................................... 163 Alternative Sources of MakeUp Water ........................................................................................ 165 Rejection of CCRS as BTA ................................................................................................................ 165

Three Factors ............................................................................................................................... 165 Cost and Affordability ................................................................................................................. 166 Other Options Considered Based on CCRS ................................................................................. 166

Essay 18: Impingement and Entrainment Technologies and Operational Measures .........168

Introduction ........................................................................................................................................ 168 Background ........................................................................................................................................ 168 Overall Response: Introduction .......................................................................................................... 170

ivImpingement Mortality BTA Standard .............................................................................................. 170

Entrainment BTA Standard ................................................................................................................ 171 Specific Technologies Discussions .................................................................................................... 171 Flow Reduction Technologies ..................................................................................................... 172 Exclusion and Collection Technologies ....................................................................................... 176 Avoidance/Behavioral Technologies ........................................................................................... 181 Entrapment ......................................................................................................................................... 182

Nucle ar Facilities ................................................................................................................................ 184

Essay 19: Regulatory Options ...................................................................................................187

Introduction ........................................................................................................................................ 187 General Response ............................................................................................................................... 187 Factors for Supporting Site- Specific Entrainment and Rejecting a Uniform Standard Based On Closed-Cycle Cooling................................................................................................................... 189 Land Availability ......................................................................................................................... 190

Increased Air Emissions Could Be a Factor on a Local Basis ..................................................... 192 Remaining Useful Plant Life Could Be a Factor on a Facility Basis ........................................... 193 Energy Reliability is Not a Dispositive Factor in EPA’s Rejection of Closed

- Cycle Cooling as BTA ........................................................................................................................... 196

Other Factors ................................................................................................................................ 196 Regulatory Options ............................................................................................................................. 198 Technology Basis ......................................................................................................................... 198 Proposal Option 1 ........................................................................................................................ 201 Other Options Considered for Today’s Final Regulation ............................................................ 203

Consideration of Costs and Benefits on a Site- specific Basis in Establishing Entrainment Mortality Controls, Including a Cost- Cost Test ................................................................................. 210 Subcategorization ............................................................................................................................... 211 Cap acity Utilization Rating As a Basis for Different Standards, Peaking Units, Seasonal Operation and Other Related Comments ..................................................................................... 211 Waterbody Type as A Basis For Different Standards .................................................................. 215

Essay 20: New Units ...................................................................................................................218

Introduction ........................................................................................................................................ 218 Overall Response ................................................................................................................................ 218

Definition of New Unit ....................................................................................................................... 220 BTA Requirements for New Units ..................................................................................................... 223 Projected Baseline Compliance .......................................................................................................... 227

vImplementation ................................................................................................................................... 227

Notice and Comment .......................................................................................................................... 229

Essay 21: Development of Compliance Costs ..........................................................................231

Introduction ........................................................................................................................................ 231 Summary of Changes to Cost Estimation Methodology .................................................................... 231 IM Technology C ost Development .................................................................................................... 232 Baseline Compliance ................................................................................................................... 232 Costing Technology Selection ..................................................................................................... 234 Technology Costs – Overarching Comments .............................................................................. 237 Comments Concerning Capital Costs for Specific Facilities ....................................................... 240

Service Life .................................................................................................................................. 244 Entrainment Costs Development for Existing Units/Intakes .............................................................. 245

Closed

- Cycle Cooling for Existing Units at Generators .............................................................. 246

Closed -Cycle Cooling for Existing Intakes at Manufacturers ..................................................... 251

New Unit Costs .................................................................................................................................. 252

Other Cost Comments ........................................................................................................................ 253

Essay 22: Implementation .........................................................................................................254

Introduction ........................................................................................................................................ 254 General Implementation ..................................................................................................................... 254

Short- Term Exceedances .................................................................................................................... 255 Application to Each Intake ................................................................................................................. 256 Compliance Deadlines and Implementation Schedules ...................................................................... 256 NPDES Permit Application Cycle ............................................................................................... 256 Harmonizing IM and EM Requirements and the Compliance Timeline ..................................... 258

Nuclear Facilities ......................................................................................................................... 260 Consideration of Remaining Useful Plant Life ............................................................................ 260 Facility Retirement ....................................................................................................................... 260 Considering Use of New Technologies ....................................................................................... 261 Permit Development and Review Resource Constraints ............................................................. 261 Clarifying “As Soon As Possible” and “Additional Time” ......................................................... 261 Requiring Interim Measures ........................................................................................................ 262 Cooling Water Intake Thresholds ....................................................................................................... 262 NPDES Permit Application Requirements ......................................................................................... 263 Application Requirements Submittal Dates ....................................................................................... 263

viBTA Standard for Impingement Mortality ......................................................................................... 264

Barrier Nets .................................................................................................................................. 265 Entrapment ................................................................................................................................... 265 Entrainment Mortality Reduction Requirements ................................................................................ 265 100 Percent Mortality of Entrainment Organisms ....................................................................... 266 Land Availability ......................................................................................................................... 266 Description of Entrainment Survival Study ................................................................................. 266 Application Requirements .................................................................................................................. 267 Exemptions for Peaking Units ..................................................................................................... 267

Peer Review ................................................................................................................................. 268 Benefits Valuation Study ............................................................................................................. 268 Default Values for Permit Applications ....................................................................................... 269 Use of Existing Studies or Data ................................................................................................... 269 Chosen Method of Compliance with Impingement Mortality Standard ...................................... 270 Entrainment Characterization Study ............................................................................................ 270 Monitoring Requirements ................................................................................................................... 271 Clarifying “Direct Measure” ........................................................................................................ 273 Annual Average ........................................................................................................................... 273 Species of Concern and Fragile Species ...................................................................................... 273

Effects of Debris .......................................................................................................................... 276 IM Monitoring Methods .............................................................................................................. 276 IM Monitoring at Each Intake ...................................................................................................... 277 Remote and Visual Inspection ..................................................................................................... 278 Monitoring Feasibility ................................................................................................................. 278

Taxonomic Identification ............................................................................................................. 279

Converts ....................................................................................................................................... 280 Moribund Organisms ................................................................................................................... 280 Biofouling .................................................................................................................................... 280

Zero Catch .................................................................................................................................... 281

New Units .................................................................................................................................... 281 Counting Impinged Organisms with the “Hypothetical Net” ...................................................... 281 Methods for Evaluating Latent Mortality Effects Resulting from Impingement ............................... 282 Reporting Requirements and Record Keeping ................................................................................... 283 Compliance with Other Laws ............................................................................................................. 284 State 316(b) Programs.................................................................................................................. 285

viiDirector’s Role ................................................................................................................................... 286 Setting More Stringent Standards ................................................................................................ 286 Permit Proceedings Begun Prior to the Effective Date of the Final Rule .................................... 286 Establishing a Policy to Disallow EPA Comments ..................................................................... 287 Requiring Additional Information ............................................................................................... 287

Communications and Outreach .................................................................................................... 287 Dry/Hybrid Cooling Towers............................................................................................................... 288

Social Cost

- Benefit Analysis in Establishing Entrainment Standards ............................................... 288

Essay 23: EPA’s Information Collection Request (ICR) and Administrative Costs of the Rule ...................................................................................................................................290

Essay 24: Technical Development Document ..........................................................................292

Introduction ........................................................................................................................................ 292 Basis for Developing Costs ................................................................................................................ 292 Technology Performance.................................................................................................................... 294

Site

- Specific Data for Capacity Utilization Rate ................................................................................ 297 Analysis of Uncertainty ...................................................................................................................... 298

Essay 29: Cumulative Impact of Multiple EPA Regulations on the Electric Power Sector ......................................................................................................................................299

Overview of Comments ...................................................................................................................... 299 Impact of the 316(b) Final Rule in the Context of Multiple Environmental Regulations Affecting the Electric Power Industry ................................................................................................ 300 Impact of 316(b) Final Rule on Electricity Rates, Total Economy, and Employment ....................... 301

Need for Consultation and Coordination ............................................................................................ 301 Impact on Coal Usage and the Coal Industry ..................................................................................... 302 Impact on Coal- Refuse Based Generation ......................................................................................... 302 Adverse Impact on Decisions to Build New Units ............................................................................. 302 Adverse Impact Due to Compressed and Overlapping Compliance Periods from Multiple Regulations ......................................................................................................................................... 302 Financial Losses from Capacity Retirements .................................................................................. 303 Potential Impact on Grid Stability and Transmission System Reliability .................................... 303

Essay 31: Cost and Economic Impact Analysis: Methods and Approaches ........................305

Overview of Comments ...................................................................................................................... 305

Annualization of Costs and Benefits .................................................................................................. 306

Claim of Inconsistencies in Annualization Periods ..................................................................... 306

viiiThe 50- Year Annualization Period Used for the Proposed Rule Understates Costs; Recommendation to Use 10-Year Annualization Period Based on Congressional Budget Office (CBO) ............................................................................................................................... 308 Use of Annualization Periods for the Proposed 316(b) Existing Facil ities Rule Analysis that Differ from the Periods Used in the Previous 316(b) Rulemaking Analyses ....................... 308

Use of 30 -Year Period for Modeling Benefits for the Individual Facility ................................... 309 Cost and Economic Impact Analysis Assumptions and Analytic Approach ...................................... 309

Use of Sum of Facility -Level Revenue for Entity- Level Cost

- to

- Revenue Analysis .................. 309

Underestimation of Cost Per Unit in Sales to Customers ............................................................ 309 Underestimation of the Rule’s Costs because of Failure to Account for Closing Facilities ........ 310

Assertion that Cost

- to

- Reven ue Analysis is Not an Appropriate Measure of Impact ................. 310 Assertion that the Cost and Economic Impact Analysis Does Not Account for Conditions in Specific Industries.................................................................................................................... 311

Assertion that Cost Pass -Through Assumptions are Overly Conservative .................................. 311

Essay 35: Installation Downtime for Manufacturing and Non- Electric Power Generating Facilities .............................................................................................................312

Introduction ........................................................................................................................................ 312 History of the Development of Downtime Estimates for IM Controls for Manufacturers ................. 312 Length of Downtime for Installation of IM Controls ......................................................................... 312

Costs of Downtime for Installation of IM Controls ........................................................................... 315 Length of Downtime and Associated Costs for Installing Entrainment Controls .............................. 317 Industry or Facility-Specific Downtime ............................................................................................. 319

Other Downtime Comments ............................................................................................................... 320

Essay 36: Employment Effects Analysis ..................................................................................322

Overview of Commen ts ...................................................................................................................... 322 General Response .............................................................................................................................. 322 Failure to Perform a Quantitative Employment Effects Analysis ...................................................... 323 Analysis of Electricity Rate Effects on Employment ......................................................................... 324 Use of Other Methodologies and Data for Performing Employment Effects Analysis...................... 325 Recommendation to Use the Labor Intensity Coefficient Developed from NERA Study for the Employment Analysis ...................................................................................................... 325

Recommendation That EPA Estimate Job Effects in the Electric Power Sector Based on Potential Loss in Electric Generating Capacity from the Market Model Analysis ...................... 325 Recommendation to Use Results from Other Studies in the Employment Effects Analysis ....... 326 Failure to Account for the Employment Loss in Baseline Closure of Manufacturers Facilities ........ 326

ixFailure to Recognize that Proposal Option 3 Would Result in the Least Adv erse Impact on Employment ....................................................................................................................................... 327 Arguments Supporting the Existing Facilities Rule Based on Potential Employment Requirements ...................................................................................................................................... 327

Essay 37: Adverse Impacts on National, State, and Local Economies ..................................328

Essay 38: Impact on Rural Electric Cooperatives ..................................................................331

Essay 3 9: Reliability and Electricity Rate Impacts .................................................................333

Overview of Comments ...................................................................................................................... 333 General Concerns Regarding Reliability and Electricity Rate Impact ............................................... 334 Potential Capacity Closures Due to the Final Rule ............................................................................ 335 Argument that Capacity Closures and Related Reliability an d Rate Effects under an AllCooling Tower Regulation Would be Acceptable .............................................................................. 336 Argument that Adverse Capacity Effects are Overstated because of Overly Conservative Assumptions in the IPM Analysis ...................................................................................................... 336 Argument that Overly Conservative Consumptions Regarding C ost Pass

- Through Lead to Overstatement of Impacts on Consumers and Overstatement of Impacts on Regulated Facilities ............................................................................................................................................. 337 Overall Argument Favoring an All Cooling Tower Regulation ......................................................... 337 Potential Impact of Rule on Electricity Consumers ........................................................................... 338 Argument that Limited Timeframe for Regulatory Compliance May Lead to Difficulties in Facilities Achieving Compliance with the Rule, with Associated Reliability and Rate Impacts ....... 338 Undesirable Transfers of Income from Consumers to Electricity Generators ................................... 339 Assertion that EPA Assess the Potential Impact of Electricity Rate Increases on Low Income Consumers .......................................................................................................................................... 339 EPA Should Consider Alternative Compliance Standards for Load- Following and Peaking Generating Units ................................................................................................................................. 339

Essay 45: Market Model Analysis Conducted Using IPM .....................................................340

S ome Results Concerning Electricity Rates Appear Contradictory and/or Counterintuitive ............. 341 Use of an Older IPM Platform and Potential Overstatement of Rule Impacts ................................... 341

Essay 47: Economic Impacts on Manufacturers .....................................................................343

Essay 48: Rule Should Establish Performan ce Metrics to Track and Validate Public Policy Value of Rule's Requirements ...................................................................................346

Essay 50: Alternative Compliance Responses .........................................................................347

xEssay 53: Electricity Rate and Reliability Impact to be Considered During SiteSpecific Evaluation ................................................................................................................349

Essay 55: Facility- Level Compliance Costs, Social Costs, and Costs to be Submitted as Part of the Comprehensive Technical Feasibility and Cost Evaluation Study ...........350

Essay 58: EPA’s Consultation and Stakeholder Outreach ....................................................353

Essay 59: Executive Orders 12866: Regulatory Planning and Review and 13563: Improving Regulation and Regulatory Review ..................................................................355

Comments on the Relationship between Social Cost and Benefits and EPA’s Selection of and Support for the Proposed Rule ........................................................................................................... 356

Failure to Provide Time Profile of Social Costs and Benefits ............................................................ 356

Fail ure to Explain How Benefits Justify Costs ................................................................................... 356 Failure to Quantify the Effect on Employment .................................................................................. 357 EPA Should Consider the Current State of the U.S. Economy .......................................................... 358

Failure to Consider the Costs and Effects of Other Rules .................................................................. 358 Need to Assess Reliability Effects ..................................................................................................... 358

Need for Performance Metrics Pursuant to EO 13563 ....................................................................... 358 Rule Does Not Set Performance Objectives ....................................................................................... 358

Essay 60: Other Federal Statutes .............................................................................................359

Essay 64: Inter- Agency Review ................................................................................................361

Essay 68: New Capacity.............................................................................................................362

Essay 70: General Comments on Nonuse Benefits ..................................................................363

Essay 71 : Benefit Categories .....................................................................................................368 Excluded Benefit Categories .............................................................................................................. 368

Economic and Cultural Benefits ......................................................................................................... 369

Site Benefits ....................................................................................................................................... 371

Distributional Effects ......................................................................................................................... 371

Essay 72: Benefits to Threatened and Endangered Species and Endangered Species Act Consultation ....................................................................................................................372

Monetized Benefits of Threatened and Endangered Species ............................................................. 372 Assumptions Regarding Baseline Losses ........................................................................................... 372

xiEssay 73: Commercial and Recreational Fishing Benefits .....................................................374 Fishery Yield ...................................................................................................................................... 374 Commercial Fishing Market Complexity ........................................................................................... 374 Great Lakes Study .............................................................................................................................. 375 Recreational Fishing Benefits Analysis Method ................................................................................ 375 Declining Marginal Utility ................................................................................................................. 378

Environmental Justice ........................................................................................................................ 379

Essay 74: Nonuse Benefits Analysis Methods ..........................................................................380 Limiting the Transfer to Two Regions ............................................................................................... 380 Criticism of the Rhode Island Stated Preference Study ..................................................................... 381 EPA’s Application of the Rhode Island Study ................................................................................... 384

Essay 75: Nonuse Benefits on Reducing I&E Mortality: Habitat- based Approach ............386

Role of Habitat- Based Approach Results ........................................................................................... 386 Assumptions in the Habitat

- Based Approach ..................................................................................... 386

The Habitat

- Based Method’s Unrealistic Results .............................................................................. 387 Response to Comments ...................................................................................................................... 387

Essay 76: Break Even Analysis .................................................................................................388

Introduction ........................................................................................................................................ 388 Riverkeeper Comments ...................................................................................................................... 388

UWAG Comments ............................................................................................................................. 389

Essay 77: 316(b) Stated Preference Survey .............................................................................391

Nonuse Values .................................................................................................................................... 392

Use for Cost

- Benefit Analysis ............................................................................................................ 392

Essay 78: National Benefits .......................................................................................................395

Benefits are Underestimated ............................................................................................................... 395

Benefits are Overestimated ................................................................................................................. 397

Essay 81: Loss Metrics...............................................................................................................400

Essay 82: Assessment and Extrapolation of Impingement Mortality and Entrainment ...........................................................................................................................402

Data Quality and Age ......................................................................................................................... 402 Problems with Age Equivalency Models ........................................................................................... 403

xiiBiomass Transfer Among Trophic Levels .......................................................................................... 404 Extrapolation from Facilities to Regions ............................................................................................ 405 Limitations and Uncertainty ............................................................................................................... 405

Essay 83: Entrainment Mortality .............................................................................................408 Assumption of 100 Percent Entrainment Mortality ............................................................................ 408

Relevance to the Final Rule and Determination of BTA .................................................................... 409

Essay 84: Impacts on Threatened an d Endangered Species ..................................................410 Inability to Account for All Impacts .................................................................................................. 410 Impacts of Regulated Facilities on T&E Species ............................................................................... 410 Potential for IM&E of T&E Species .................................................................................................. 411

xiiiIntroduction



### Introduction

On April 20, 2011 EPA published a proposed rule to establish nationally applicable requirements under section 316(b) of the Clean Water Act (CWA) for existing power generating facilities and existing manufacturing and industrial facilities . EPA also proposed revisions to the Phase I new facility rule in response to the Riverkeeper I decision. On June 11 and 12, 2012, EPA published a pair of Notice s of Data Availability (NODA s) ; the first regarding information on impingement mortality controls and the second regarding information on EPA’s stated preference survey. Between the three notices, EPA received more than 63,000 comments under Docket ID EPAHQ

- OW -2008-0667.

EPA parsed c omment letters into discrete sections according to the subject matte r addressed in the given section of the letter (i.e., a comment letter may be broken into as many parts as there are issues raised). EPA then developed responses to each of these comments in the form of broad essays that address all of the comments within a subject matter area.

The final responses to comment document consists of the following:

• Introductory Chapter: Familiarizes commenters with the process EPA used to divide comments into similar issues for response and helps commenters learn how to find

res ponses to their comments

.

• Response to Comment Essays : Provides each of the comment response essays.

This Introductory Chapter describes the following:

A. Methodology EPA used to sort and code public comment letters B. Locating your comments and EPA’s response in the final document C. Duplicates

, attachments, mass mail campaigns , and keyword searches D. Disclaimer



### A. Methodology EPA Used to Sort and Code Public Comment Letters In responding to public comments, EPA used the following methodology to sort and code comment letters into similar topics for response:

1. A ssigned each letter an Author ID based on the number generated by the Federal Docket Management System (FDMS)

. 2. Reviewed each letter in its entirety, including any attachments. 3. Identified the major subjects addressed in each letter and assigned them to specific issue categories (also known as “comment coding”) . For most letters, this results in multiple
comments per letter

. 4. Drafted a response in each issue category, using an essay format to address all comments with in an issue category simultaneously.Introduction



### B **. Locating Your Comments and EPA’s Response in the Final Document** All comments on the proposed rule and NODAs are available at http:/ /www.regulations.gov/#!docketDetail;D=EPA- HQ

- OW -2008-0667

. An excerpt from Table 1 below illustrates that the table contains a list of the commenters, their affiliation, and their Document IDs. A full version of Table 1 is included at the end of the Introd uctory Chapter.

Table 1. Comments on the Proposed Rule and NODAs

.

FDMS Document I D First Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1288 G. Gries

EPA

- HQ

- OW

- 2 008

- 0667

- 1 296 Mass Comment Campaign Alliance for the Great Lakes

EPA

- HQ

- OW

- 2008

- 0667

- 1298 Mass Comment Campaign Consumer Energy Alliance

EPA

- HQ

- OW

- 2008

- 0667

- 1299 P. Warren
EPA

- HQ

- OW

- 2008

- 0667

- 1300 F. Caplan

EPA

- HQ

- OW

- 2008

- 0667

- 1304 M. W. Birch

EPA

- HQ

- OW

- 2008

- 0667

- 1305 T. E. McCloskey

EPA

- HQ

- OW

- 2008

- 0667

- 1325 Elizabeth Aldridge Utility Water Act Group (UWAG)

The Tabl e of Contents contains a list of the response to comment essays, which are divided into various subject areas. The essays address comments received on both the proposed ru le and NODAs . Readers should simply refer to the Table of Contents to identify the subject area of interest and the corresponding essay.

Note that the numbering of the essays may not be sequential; there are gaps in the numbering. This resulted from some essays being combined with one another.



### C. Duplicates, Attachments, Mass Mail Campaigns, and Keyword Searches

Duplicates In rare cases, a comment letter was received more than once. When EPA determined that a comment letter was an exact duplicate of another comment letter, EPA did note code the duplicate letter.

A ttachments Some comment letters also contained attachments, such as biological studies or engineering cost estimates. EPA reviewed all letters for attachments and then reviewed all the attachments. Attachments that contain ed additional data directly relevant to the proposed rule (or NODAs) were coded using the same process as standard comments. If the attachment was not directly relev ant (e.g., a commenter provided a generic newspaper article on the electric generating industry), EPA did note code the attachment. EPA considered all attachments in developing the final rule and responding to comments, but only coded those that were directly relevant.Introduction

Mass Mail Campaigns EPA received comments through approximately 15 mass mail campaigns, totaling over 62,000 comments. EPA only coded those that were posted to www.regulations.gov as unique comment l etters. EPA’s Water Docket determined whether letters contained the same (or very similar) content as others and posted only those that are unique. For example, if two (or more) commenters submitted identical comments, the first letter received will appear under the name “Mass Comment Campaign” and any subsequent identical (or nearly identical) comments will be catalogued within the same record. Similarly, EPA’s response to the “parent” letter applies to all of the fo rm letters within that record. Form lett ers that provided additional substantive comments were addressed by responding to the unique material in the relevant response essay. This is consistent with EPA’s goals in responding to public comments, as all of the letters received under “Mass Comment Campaign” are identical, thereby allowing EPA to respond to the group of letters collectively.

Keyword Searches This document is in Adobe PDF format. Readers may perform word searches using the Acrobat Reader: use the Search button or SHIFT- CTRL

- F.



### D. Disclaimer As a result of late changes made to the preamble and final rule prior to the Administrator’s signature, and due to the volume of comments received, some responses in this document may not reflect the language in the preamble and final rule in every respect. Where this is the case, the language in the final preamble and rule controls and should be used for purposes of understanding the scope, requirements, and basis of the final rule.Introduction


### Table 1. Comments on the Proposed Rule and NODAs

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1288 G. Gries
EPA

- HQ

- OW

- 2008

- 0667

- 1296 Mass Comment Campaign Alliance for the Great Lakes

EPA

- HQ

- OW

- 2008

- 0667

- 1298 Mass Comment Campaign Consumer Energy Alliance

EPA

- HQ

- OW

- 2008

- 0667

- 1299 P. Warren
EPA

- HQ

- OW

- 2008

- 0667

- 1300 F. Caplan
EPA

- HQ

- OW

- 2008

- 0667

- 1301 V. Heying
EPA

- HQ

- OW

- 2008

- 0667

- 1302 K. Treacy
EPA

- HQ

- OW

- 2008

- 0667

- 1303 D. Bryson
EPA

- HQ

- OW

- 2008

- 0667

- 1304 M. and W. Birch
EPA

- HQ

- OW

- 2008

- 0667

- 1305 T. and E. McCloskey
EPA

- HQ

- OW

- 2008

- 0667

- 1306 R. Kane
EPA

- HQ

- OW

- 2008

- 0667

- 1307 A. Klein
EPA

- HQ

- OW

- 2008

- 0667

- 1308 G. French
EPA

- HQ

- OW

- 2008

- 0667

- 1309 T. Bauer
EPA

- HQ

- OW

- 2008

- 0667

- 1310 M. Wexler
EPA

- HQ

- OW

- 2008

- 0667

- 1311 M. Janowiak
EPA

- HQ

- OW

- 2008

- 0667

- 1312 J. Bussen
EPA

- HQ

- OW

- 2008

- 0667

- 1313 K. Megregian
EPA

- HQ

- OW

- 2008

- 0667

- 1314 G. Opem
EPA

- HQ

- OW

- 2008

- 0667

- 1315 S. Hughes
EPA

- HQ

- OW

- 2008

- 0667

- 1316 J. Gorham
EPA

- HQ

- OW

- 2008

- 0667

- 1317 A. Jenks
EPA

- HQ

- OW

- 2008

- 0667

- 1318 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1319 D. Shwatal
EPA

- HQ

- OW

- 2008

- 0667

- 1320 M. Brower
EPA

- HQ

- OW

- 2008

- 0667

- 1321 F. Belogorsky
EPA

- HQ

- OW

- 2008

- 0667

- 1322 D. Shankland
EPA

- HQ

- OW

- 2008

- 0667

- 1323 G. Crouse
EPA

- HQ

- OW

- 2008

- 0667

- 1324 E. N. Van Abel
EPA

- HQ

- OW

- 2008

- 0667

- 1325 Elizabeth Aldridge Utility Water Act Group (UWAG)
EPA

- HQ

- OW

- 2008

- 0667

- 1326 E. May
EPA

- HQ

- OW

- 2008

- 0667

- 1327 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1328 R. Steiger
EPA

- HQ

- OW

- 2008

- 0667

- 1329 D. ShumakerIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1330 W. Brickenstein
EPA

- HQ

- OW

- 2008

- 0667

- 1331 W. Coles
EPA

- HQ

- OW

- 2008

- 0667

- 1332 A. Baratta
EPA

- HQ

- OW

- 2008

- 0667

- 1333 H. Neal
EPA

- HQ

- OW

- 2008

- 0667

- 1334 S. Schueler
EPA

- HQ

- OW

- 2008

- 0667

- 1335 L. Parker
EPA

- HQ

- OW

- 2008

- 0667

- 1345 D. Rousseau
EPA

- HQ

- OW

- 2008

- 0667

- 1346 S. Brower
EPA

- HQ

- OW

- 2008

- 0667

- 1347 M. Trost
EPA

- HQ

- OW

- 2008

- 0667

- 1348 A. Kardoff
EPA

- HQ

- OW

- 2008

- 0667

- 1349 C. Miller
EPA

- HQ

- OW

- 2008

- 0667

- 1350 J. Yount
EPA

- HQ

- OW

- 2008

- 0667

- 1351 L. Bond
EPA

- HQ

- OW

- 2008

- 0667

- 1352 E. McAndrew

- Benavides
EPA

- HQ

- OW

- 2008

- 0667

- 1353 N. Lens
EPA

- HQ

- OW

- 2008

- 0667

- 1354 M. Greer
EPA

- HQ

- OW

- 2008

- 0667

- 1355 B. Cummings
EPA

- HQ

- OW

- 2008

- 0667

- 1356 M. Wisenburg
EPA

- HQ

- OW

- 2008

- 0667

- 1357 M. Paul
EPA

- HQ

- OW

- 2008

- 0667

- 1362 R. Termini
EPA

- HQ

- OW

- 2008

- 0667

- 1363 M. Dowd
EPA

- HQ

- OW

- 2008

- 0667

- 1372 C. Pixler
EPA

- HQ

- OW

- 2008

- 0667

- 1373 A. Ohlinger
EPA

- HQ

- OW

- 2008

- 0667

- 1374 R. Blankenship
EPA

- HQ

- OW

- 2008

- 0667

- 1375 R. Daniels
EPA

- HQ

- OW

- 2008

- 0667

- 1468 Dr. D. Hartel
EPA

- HQ

- OW

- 2008

- 0667

- 1469 J. Biss
EPA

- HQ

- OW

- 2008

- 0667

- 1470 C. Albee
EPA

- HQ

- OW

- 2008

- 0667

- 1471 Dr. G. Crouse
EPA

- HQ

- OW

- 2008

- 0667

- 1472 S. Hathaway
EPA

- HQ

- OW

- 2008

- 0667

- 1473 H. Chichester
EPA

- HQ

- OW

- 2008

- 0667

- 1474 D. Rosenberg
EPA

- HQ

- OW

- 2008

- 0667

- 1475 J. Commerford
EPA

- HQ

- OW

- 2008

- 0667

- 1476 P. Tullis
EPA

- HQ

- OW

- 2008

- 0667

- 1477 N. Stevens
EPA

- HQ

- OW

- 2008

- 0667

- 1478 E. Clark
EPA

- HQ

- OW

- 2008

- 0667

- 1479 I. Stover
EPA

- HQ

- OW

- 2008

- 0667

- 1480 Dr. L. Young
EPA

- HQ

- OW

- 2008

- 0667

- 1481 V. WhickerIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1482 T. E. Robinson
EPA

- HQ

- OW

- 2008

- 0667

- 1483 S. Anderson
EPA

- HQ

- OW

- 2008

- 0667

- 1484 B. Anderson
EPA

- HQ

- OW

- 2008

- 0667

- 1485 D. Gordillo
EPA

- HQ

- OW

- 2008

- 0667

- 1486 Dr. K. L. and J. Modesitt
EPA

- HQ

- OW

- 2008

- 0667

- 1487 P. Hanson
EPA

- HQ

- OW

- 2008

- 0667

- 1488 A. Carissimi
EPA

- HQ

- OW

- 2008

- 0667

- 1489 T. Piazzon
EPA

- HQ

- OW

- 2008

- 0667

- 1490 M. Roam
EPA

- HQ

- OW

- 2008

- 0667

- 1491 L. Grimes
EPA

- HQ

- OW

- 2008

- 0667

- 1492 D. Ellis
EPA

- HQ

- OW

- 2008

- 0667

- 1493 D. Shanklin
EPA

- HQ

- OW

- 2008

- 0667

- 1494 L. Kelly
EPA

- HQ

- OW

- 2008

- 0667

- 1495 K. Norton
EPA

- HQ

- OW

- 2008

- 0667

- 1496 C. Cox
EPA

- HQ

- OW

- 2008

- 0667

- 1497 S. Alex
EPA

- HQ

- OW

- 2008

- 0667

- 1498 S. and J. Biller
EPA

- HQ

- OW

- 2008

- 0667

- 1499 G. Meindl
EPA

- HQ

- OW

- 2008

- 0667

- 1500 M. Mehlman
EPA

- HQ

- OW

- 2008

- 0667

- 1501 E. Purcell
EPA

- HQ

- OW

- 2008

- 0667

- 1502 V. Pilkington
EPA

- HQ

- OW

- 2008

- 0667

- 1503 A. Kelm
EPA

- HQ

- OW

- 2008

- 0667

- 1504 S. Brodhead
EPA

- HQ

- OW

- 2008

- 0667

- 1505 E. Perchonock
EPA

- HQ

- OW

- 2008

- 0667

- 1506 J. Sanborn
EPA

- HQ

- OW

- 2008

- 0667

- 1507 G. Garrison
EPA

- HQ

- OW

- 2008

- 0667

- 1508 I. Botvin
EPA

- HQ

- OW

- 2008

- 0667

- 1509 S. O

- Ishi
EPA

- HQ

- OW

- 2008

- 0667

- 1510 M. Link
EPA

- HQ

- OW

- 2008

- 0667

- 1511 D. Flores
EPA

- HQ

- OW

- 2008

- 0667

- 1512 M. Well
EPA

- HQ

- OW

- 2008

- 0667

- 1513 Rayburn L. Butts NextEra Energy Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 1514 C. Burke
EPA

- HQ

- OW

- 2008

- 0667

- 1515 D. Mahle
EPA

- HQ

- OW

- 2008

- 0667

- 1516 A. Thornton
EPA

- HQ

- OW

- 2008

- 0667

- 1517 J. S. Dandoval
EPA

- HQ

- OW

- 2008

- 0667

- 1518 M. Stemp
EPA

- HQ

- OW

- 2008

- 0667

- 1519 D. Parker
EPA

- HQ

- OW

- 2008

- 0667

- 1520 L. ChampagneIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1521 A. Osmond
EPA

- HQ

- OW

- 2008

- 0667

- 1522 R. McIntire
EPA

- HQ

- OW

- 2008

- 0667

- 1523 M. Linvill
EPA

- HQ

- OW

- 2008

- 0667

- 1524 S. Mehrotra
EPA

- HQ

- OW

- 2008

- 0667

- 1525 P. Thomas
EPA

- HQ

- OW

- 2008

- 0667

- 1526 P. Sladek
EPA

- HQ

- OW

- 2008

- 0667

- 1527 M. Young
EPA

- HQ

- OW

- 2008

- 0667

- 1528 A. Cortese
EPA

- HQ

- OW

- 2008

- 0667

- 1529 Maria Valdez The Dow Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 1530 Mass Comment Campaign Natural Resources Defense Council (NRDC)

EPA

- HQ

- OW

- 2008

- 0667

- 1531 D. Johnson
EPA

- HQ

- OW

- 2008

- 0667

- 1532 M. Bartleman
EPA

- HQ

- OW

- 2008

- 0667

- 1533 A. Desai
EPA

- HQ

- OW

- 2008

- 0667

- 1534 J. Weller
EPA

- HQ

- OW

- 2008

- 0667

- 1535 D. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 1536 J. Steitz
EPA

- HQ

- OW

- 2008

- 0667

- 1537 J. Scott
EPA

- HQ

- OW

- 2008

- 0667

- 1538 M. Hills
EPA

- HQ

- OW

- 2008

- 0667

- 1539 P. La Point
EPA

- HQ

- OW

- 2008

- 0667

- 1540 P. Johnston
EPA

- HQ

- OW

- 2008

- 0667

- 1541 S. Futrell
EPA

- HQ

- OW

- 2008

- 0667

- 1542 B. Flowers
EPA

- HQ

- OW

- 2008

- 0667

- 1546 Dana Wright Tennessee Clean Water Network (TCWN)
EPA

- HQ

- OW

- 2008

- 0667

- 1547 Al Carlson and Tom Holbrook National Conference of State Legislatures (NCSL)
EPA

- HQ

- OW

- 2008

- 0667

- 1548 J. Capozzelli
EPA

- HQ

- OW

- 2008

- 0667

- 1549 Al Carlson and Tom Holbrook National Conference of State Legislatures (NCSL)
EPA

- HQ

- OW

- 2008

- 0667

- 1550 Mass Comment Campaign Environmental Law and Policy Center

EPA

- HQ

- OW

- 2008

- 0667

- 1551 Mass Comment Campaign Sierra Club

EPA

- HQ

- OW

- 2008

- 0667

- 1552 J. Sorrells
EPA

- HQ

- OW

- 2008

- 0667

- 1553 M. Huff
EPA

- HQ

- OW

- 2008

- 0667

- 1554 L. Barrett
EPA

- HQ

- OW

- 2008

- 0667

- 1555 C. Piper
EPA

- HQ

- OW

- 2008

- 0667

- 1556 D. Robertson
EPA

- HQ

- OW

- 2008

- 0667

- 1557 E. B. Robbins
EPA

- HQ

- OW

- 2008

- 0667

- 1558 R. Penney
EPA

- HQ

- OW

- 2008

- 0667

- 1559 R. BakerIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1560 K. Rowlett
EPA

- HQ

- OW

- 2008

- 0667

- 1561 T. Kruskie
EPA

- HQ

- OW

- 2008

- 0667

- 1562 Dr. J. Livingston
EPA

- HQ

- OW

- 2008

- 0667

- 1563 Ed and S. Harney
EPA

- HQ

- OW

- 2008

- 0667

- 1564 C. Carter
EPA

- HQ

- OW

- 2008

- 0667

- 1565 C. Mies
EPA

- HQ

- OW

- 2008

- 0667

- 1566 J. Robinson
EPA

- HQ

- OW

- 2008

- 0667

- 1567 A. Murre
EPA

- HQ

- OW

- 2008

- 0667

- 1568 J. Rooks
EPA

- HQ

- OW

- 2008

- 0667

- 1569 N. Husnani
EPA

- HQ

- OW

- 2008

- 0667

- 1570 B. Wagman
EPA

- HQ

- OW

- 2008

- 0667

- 1571 B. Katakis
EPA

- HQ

- OW

- 2008

- 0667

- 1572 E. Lofftus
EPA

- HQ

- OW

- 2008

- 0667

- 1573 K. Davis
EPA

- HQ

- OW

- 2008

- 0667

- 1574 C. Jacob
EPA

- HQ

- OW

- 2008

- 0667

- 1575 L. Calleja
EPA

- HQ

- OW

- 2008

- 0667

- 1576 M. (no last name provided)
EPA

- HQ

- OW

- 2008

- 0667

- 1577 D. R. Nelson
EPA

- HQ

- OW

- 2008

- 0667

- 1578 R. Kerrill
EPA

- HQ

- OW

- 2008

- 0667

- 1579 B. Eaton
EPA

- HQ

- OW

- 2008

- 0667

- 1580 G. Neumann
EPA

- HQ

- OW

- 2008

- 0667

- 1581 M. Menzel
EPA

- HQ

- OW

- 2008

- 0667

- 1582 C. May
EPA

- HQ

- OW

- 2008

- 0667

- 1583 K. Massanari
EPA

- HQ

- OW

- 2008

- 0667

- 1584 R. Heiser
EPA

- HQ

- OW

- 2008

- 0667

- 1585 D. Duda
EPA

- HQ

- OW

- 2008

- 0667

- 1586 L. Stevens
EPA

- HQ

- OW

- 2008

- 0667

- 1587 N. Dean
EPA

- HQ

- OW

- 2008

- 0667

- 1588 N. Bilheimer
EPA

- HQ

- OW

- 2008

- 0667

- 1589 J. Sorrells
EPA

- HQ

- OW

- 2008

- 0667

- 1590 S. Harris
EPA

- HQ

- OW

- 2008

- 0667

- 1591 B. Prewitt
EPA

- HQ

- OW

- 2008

- 0667

- 1592 D. Cohn
EPA

- HQ

- OW

- 2008

- 0667

- 1593 Matthew Bell Regional Chamber of Northeast Indiana
EPA

- HQ

- OW

- 2008

- 0667

- 1594 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1595 Scott Manley Wisconsin Manufacturers & Commerce (WMC)
EPA

- HQ

- OW

- 2008

- 0667

- 1596 Roger E. Nott Georgia Canoeing Association, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 1597 N. WilsonIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1598 Donald R. Carlson Kansas Department of Health and Environment (KDHE)
EPA

- HQ

- OW

- 2008

- 0667

- 1599 Alex Levinson Pacific Environment
EPA

- HQ

- OW

- 2008

- 0667

- 1600 M. Aggar
EPA

- HQ

- OW

- 2008

- 0667

- 1601 D. K. Oberlin Jr.
EPA

- HQ

- OW

- 2008

- 0667

- 1602 K. Fisher
EPA

- HQ

- OW

- 2008

- 0667

- 1603 State Rep. Paul Stam, et al. North Carolina State House of Representatives
EPA

- HQ

- OW

- 2008

- 0667

- 1604 State Sen. Amy Koch Minnesota State Senate, District 19
EPA

- HQ

- OW

- 2008

- 0667

- 1605 W. Hardman
EPA

- HQ

- OW

- 2008

- 0667

- 1606 M. Reback
EPA

- HQ

- OW

- 2008

- 0667

- 1607 K. Jackson
EPA

- HQ

- OW

- 2008

- 0667

- 1608 J. Conway
EPA

- HQ

- OW

- 2008

- 0667

- 1609 L. Langston
EPA

- HQ

- OW

- 2008

- 0667

- 1610 L. Perenne
EPA

- HQ

- OW

- 2008

- 0667

- 1612 D. Hibbs
EPA

- HQ

- OW

- 2008

- 0667

- 1613 J. Morris
EPA

- HQ

- OW

- 2008

- 0667

- 1614 M. Schindler

- Ehrens
EPA

- HQ

- OW

- 2008

- 0667

- 1615 S. Pardo
EPA

- HQ

- OW

- 2008

- 0667

- 1616 J. Olson
EPA

- HQ

- OW

- 2008

- 0667

- 1617 B. Dixon

- Smith
EPA

- HQ

- OW

- 2008

- 0667

- 1618 A. Howe
EPA

- HQ

- OW

- 2008

- 0667

- 1619 E. Daniel
EPA

- HQ

- OW

- 2008

- 0667

- 1620 F. Mead
EPA

- HQ

- OW

- 2008

- 0667

- 1621 K. Walker
EPA

- HQ

- OW

- 2008

- 0667

- 1622 M. Hower
EPA

- HQ

- OW

- 2008

- 0667

- 1623 D. Filipelli
EPA

- HQ

- OW

- 2008

- 0667

- 1624 N. Black
EPA

- HQ

- OW

- 2008

- 0667

- 1625 S. Chait
EPA

- HQ

- OW

- 2008

- 0667

- 1626 T. Sheffield
EPA

- HQ

- OW

- 2008

- 0667

- 1627 P. Lipari
EPA

- HQ

- OW

- 2008

- 0667

- 1628 J. Owen
EPA

- HQ

- OW

- 2008

- 0667

- 1630 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1631 Jeff Udd Minnesota Pollution Control Agency (MPCA)
EPA

- HQ

- OW

- 2008

- 0667

- 1632 Susan R. Nanney Passaic River Coalition
EPA

- HQ

- OW

- 2008

- 0667

- 1633 M. Allard
EPA

- HQ

- OW

- 2008

- 0667

- 1634 D. Goodman
EPA

- HQ

- OW

- 2008

- 0667

- 1635 C. Kutcher
EPA

- HQ

- OW

- 2008

- 0667

- 1636 K. Robinett
EPA

- HQ

- OW

- 2008

- 0667

- 1637 State Rep. John D. Ragan Tennessee State House of RepresentativesIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1638 Thomas W. Easterly Indiana Department of Environmental Management (IDEM)
EPA

- HQ

- OW

- 2008

- 0667

- 1639 R. Benson
EPA

- HQ

- OW

- 2008

- 0667

- 1640 Blake Jeffery Indiana Cast Metals Association (INCMA)
EPA

- HQ

- OW

- 2008

- 0667

- 1641 Blake Jeffery Indiana Cast Metals Association (INCMA)
EPA

- HQ

- OW

- 2008

- 0667

- 1642 Fred Abousleman National Association of Regional Councils (NARC)
EPA

- HQ

- OW

- 2008

- 0667

- 1643 Robert A. Rio Associated Industries of Massachusetts (AIM)
EPA

- HQ

- OW

- 2008

- 0667

- 1644 Barry E. Lamb Friends of the Bay
EPA

- HQ

- OW

- 2008

- 0667

- 1645 Joaquin C. Flores Guam Power Authority (GPA)
EPA

- HQ

- OW

- 2008

- 0667

- 1646 James D. Atterholt, et al. Indiana Utility Regulatory Commission (IURC)
EPA

- HQ

- OW

- 2008

- 0667

- 1647 State Sen. Philip E. Berger, et al. North Carolina State Senate
EPA

- HQ

- OW

- 2008

- 0667

- 1648 W. Brickenstein
EPA

- HQ

- OW

- 2008

- 0667

- 1649 S. Black
EPA

- HQ

- OW

- 2008

- 0667

- 1650 S. Larson
EPA

- HQ

- OW

- 2008

- 0667

- 1651 J. R. Bracken
EPA

- HQ

- OW

- 2008

- 0667

- 1652 K. Venditti
EPA

- HQ

- OW

- 2008

- 0667

- 1653 S. Wolf
EPA

- HQ

- OW

- 2008

- 0667

- 1654 W. Aldrich
EPA

- HQ

- OW

- 2008

- 0667

- 1655 L. Anderson
EPA

- HQ

- OW

- 2008

- 0667

- 1656 M. Yeager
EPA

- HQ

- OW

- 2008

- 0667

- 1657 H. Manzella
EPA

- HQ

- OW

- 2008

- 0667

- 1658 E. L. Springer, Jr.
EPA

- HQ

- OW

- 2008

- 0667

- 1659 K. Rowlett
EPA

- HQ

- OW

- 2008

- 0667

- 1660 T. Row
EPA

- HQ

- OW

- 2008

- 0667

- 1661 Dr. W. H. Hannum
EPA

- HQ

- OW

- 2008

- 0667

- 1662 R. Termini
EPA

- HQ

- OW

- 2008

- 0667

- 1663 M. Angwin
EPA

- HQ

- OW

- 2008

- 0667

- 1664 M. Hulet
EPA

- HQ

- OW

- 2008

- 0667

- 1665 P. Sicard
EPA

- HQ

- OW

- 2008

- 0667

- 1666 R. Hodge
EPA

- HQ

- OW

- 2008

- 0667

- 1667 C. Sekaer
EPA

- HQ

- OW

- 2008

- 0667

- 1668 B. Flowers
EPA

- HQ

- OW

- 2008

- 0667

- 1669 F. Brice
EPA

- HQ

- OW

- 2008

- 0667

- 1670 J. Vickerman
EPA

- HQ

- OW

- 2008

- 0667

- 1671 M. Paul
EPA

- HQ

- OW

- 2008

- 0667

- 1672 State Sen. Paul G. Campbell, Jr. South Carolina State Senate
EPA

- HQ

- OW

- 2008

- 0667

- 1673 N. J. Scanlon
EPA

- HQ

- OW

- 2008

- 0667

- 1674 J. Capozzelli
EPA

- HQ

- OW

- 2008

- 0667

- 1675 H. ThompsomIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1676 J. Sorrells
EPA

- HQ

- OW

- 2008

- 0667

- 1677 F. Stowell
EPA

- HQ

- OW

- 2008

- 0667

- 1678 S. Slawek
EPA

- HQ

- OW

- 2008

- 0667

- 1679 J. Dunkelberg
EPA

- HQ

- OW

- 2008

- 0667

- 1680 G. Burton
EPA

- HQ

- OW

- 2008

- 0667

- 1681 J. Fox
EPA

- HQ

- OW

- 2008

- 0667

- 1682 L. Bowdery
EPA

- HQ

- OW

- 2008

- 0667

- 1683 T. Volz

- Bongar
EPA

- HQ

- OW

- 2008

- 0667

- 1684 J. Kellner
EPA

- HQ

- OW

- 2008

- 0667

- 1685 T. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 1686 M. Magee
EPA

- HQ

- OW

- 2008

- 0667

- 1687 S. Prussman
EPA

- HQ

- OW

- 2008

- 0667

- 1688 M. Morey
EPA

- HQ

- OW

- 2008

- 0667

- 1689 Rick Wajda Indiana Builders Association (IBA)
EPA

- HQ

- OW

- 2008

- 0667

- 1690 J. Conlon
EPA

- HQ

- OW

- 2008

- 0667

- 1691 Jon H. Harner Donald C. Cook Nuclear Plant (Indiana Michigan Power Co.)
EPA

- HQ

- OW

- 2008

- 0667

- 1692 C. Bergesen
EPA

- HQ

- OW

- 2008

- 0667

- 1693 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1694 J. and W. MacDonald
EPA

- HQ

- OW

- 2008

- 0667

- 1695 G. Spencer
EPA

- HQ

- OW

- 2008

- 0667

- 1696 D. Halbe
EPA

- HQ

- OW

- 2008

- 0667

- 1697 H. Hanna
EPA

- HQ

- OW

- 2008

- 0667

- 1698 C. Sims
EPA

- HQ

- OW

- 2008

- 0667

- 1699 P. Childs
EPA

- HQ

- OW

- 2008

- 0667

- 1700 S. Shaw
EPA

- HQ

- OW

- 2008

- 0667

- 1701 State Sen. Brian Schoenjahn Iowa State Senate, District 12
EPA

- HQ

- OW

- 2008

- 0667

- 1702 State Rep. Gene Pelowski, Jr. Minnesota State House of Representatives, District 31A
EPA

- HQ

- OW

- 2008

- 0667

- 1703 Barry Gullet Catawba

- Wateree Water Management Group
EPA

- HQ

- OW

- 2008

- 0667

- 1704 J. Reynolds
EPA

- HQ

- OW

- 2008

- 0667

- 1705 R. Juras
EPA

- HQ

- OW

- 2008

- 0667

- 1706 R. Warren
EPA

- HQ

- OW

- 2008

- 0667

- 1707 L. Young
EPA

- HQ

- OW

- 2008

- 0667

- 1708 J. Wagner
EPA

- HQ

- OW

- 2008

- 0667

- 1709 D. Holland
EPA

- HQ

- OW

- 2008

- 0667

- 1710 P. Lawrence
EPA

- HQ

- OW

- 2008

- 0667

- 1711 R. Heron
EPA

- HQ

- OW

- 2008

- 0667

- 1712 P. Sladek
EPA

- HQ

- OW

- 2008

- 0667

- 1713 P. BourgeoisIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1714 B. Baker
EPA

- HQ

- OW

- 2008

- 0667

- 1715 E. Elder
EPA

- HQ

- OW

- 2008

- 0667

- 1716 C. Owen
EPA

- HQ

- OW

- 2008

- 0667

- 1717 J. Maisel
EPA

- HQ

- OW

- 2008

- 0667

- 1718 J. Bleyer
EPA

- HQ

- OW

- 2008

- 0667

- 1719 A. Mondragon
EPA

- HQ

- OW

- 2008

- 0667

- 1720 F. Taylor
EPA

- HQ

- OW

- 2008

- 0667

- 1721 R. Airborne
EPA

- HQ

- OW

- 2008

- 0667

- 1722 B. Flowers
EPA

- HQ

- OW

- 2008

- 0667

- 1723 N. Poore
EPA

- HQ

- OW

- 2008

- 0667

- 1724 E. Crow
EPA

- HQ

- OW

- 2008

- 0667

- 1725 D. Pino
EPA

- HQ

- OW

- 2008

- 0667

- 1726 E. Craig
EPA

- HQ

- OW

- 2008

- 0667

- 1727 D. Borton
EPA

- HQ

- OW

- 2008

- 0667

- 1728 T. Gillespie
EPA

- HQ

- OW

- 2008

- 0667

- 1729 S. Lannin
EPA

- HQ

- OW

- 2008

- 0667

- 1730 W. Brown
EPA

- HQ

- OW

- 2008

- 0667

- 1731 M. Colyar
EPA

- HQ

- OW

- 2008

- 0667

- 1732 B. Winholtz
EPA

- HQ

- OW

- 2008

- 0667

- 1733 P. Baum
EPA

- HQ

- OW

- 2008

- 0667

- 1734 T. Selle
EPA

- HQ

- OW

- 2008

- 0667

- 1735 J. Valek
EPA

- HQ

- OW

- 2008

- 0667

- 1736 V. Keramaty
EPA

- HQ

- OW

- 2008

- 0667

- 1737 V. Keramaty
EPA

- HQ

- OW

- 2008

- 0667

- 1738 J. Nappe
EPA

- HQ

- OW

- 2008

- 0667

- 1739 M. Sawyer
EPA

- HQ

- OW

- 2008

- 0667

- 1740 M. Wood
EPA

- HQ

- OW

- 2008

- 0667

- 1741 H. Pierson
EPA

- HQ

- OW

- 2008

- 0667

- 1742 B. O'Brien
EPA

- HQ

- OW

- 2008

- 0667

- 1743 M. Leonardi
EPA

- HQ

- OW

- 2008

- 0667

- 1744 R. Tice
EPA

- HQ

- OW

- 2008

- 0667

- 1745 J. Kieffer
EPA

- HQ

- OW

- 2008

- 0667

- 1746 R. Chong
EPA

- HQ

- OW

- 2008

- 0667

- 1747 L. Conklin
EPA

- HQ

- OW

- 2008

- 0667

- 1748 M. Cronin
EPA

- HQ

- OW

- 2008

- 0667

- 1749 D. Fulton
EPA

- HQ

- OW

- 2008

- 0667

- 1750 C. Nelson
EPA

- HQ

- OW

- 2008

- 0667

- 1751 P. Blochowiak
EPA

- HQ

- OW

- 2008

- 0667

- 1752 T. and E. KaneIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1753 T. Brainerd
EPA

- HQ

- OW

- 2008

- 0667

- 1754 K. Tibbits
EPA

- HQ

- OW

- 2008

- 0667

- 1755 C. Jackson
EPA

- HQ

- OW

- 2008

- 0667

- 1756 A. Bowen
EPA

- HQ

- OW

- 2008

- 0667

- 1757 P. Shaw
EPA

- HQ

- OW

- 2008

- 0667

- 1758 M. M. Switlik
EPA

- HQ

- OW

- 2008

- 0667

- 1759 R. Owen
EPA

- HQ

- OW

- 2008

- 0667

- 1760 T. Dessenberger
EPA

- HQ

- OW

- 2008

- 0667

- 1761 P. Lowe
EPA

- HQ

- OW

- 2008

- 0667

- 1762 Bernadette McNulty
EPA

- HQ

- OW

- 2008

- 0667

- 1763 J. Reinert
EPA

- HQ

- OW

- 2008

- 0667

- 1764 P. Trivelas
EPA

- HQ

- OW

- 2008

- 0667

- 1765 J. Wisboro
EPA

- HQ

- OW

- 2008

- 0667

- 1766 L. Winslow
EPA

- HQ

- OW

- 2008

- 0667

- 1767 Gary S.
EPA

- HQ

- OW

- 2008

- 0667

- 1768 T. Crockett
EPA

- HQ

- OW

- 2008

- 0667

- 1769 C. Hubbe
EPA

- HQ

- OW

- 2008

- 0667

- 1770 N. Tichi
EPA

- HQ

- OW

- 2008

- 0667

- 1771 M. Iorio
EPA

- HQ

- OW

- 2008

- 0667

- 1772 J. Knapp
EPA

- HQ

- OW

- 2008

- 0667

- 1773 M. Cittadino
EPA

- HQ

- OW

- 2008

- 0667

- 1774 V. Nguyen
EPA

- HQ

- OW

- 2008

- 0667

- 1775 L. Gieser
EPA

- HQ

- OW

- 2008

- 0667

- 1776 C. Ehrhardt
EPA

- HQ

- OW

- 2008

- 0667

- 1777 C. Roth
EPA

- HQ

- OW

- 2008

- 0667

- 1778 V. Calenda
EPA

- HQ

- OW

- 2008

- 0667

- 1779 W. Davis
EPA

- HQ

- OW

- 2008

- 0667

- 1780 F. Jakobcic
EPA

- HQ

- OW

- 2008

- 0667

- 1781 J. Cooke
EPA

- HQ

- OW

- 2008

- 0667

- 1782 E. Ungar
EPA

- HQ

- OW

- 2008

- 0667

- 1783 L. and G. Cook
EPA

- HQ

- OW

- 2008

- 0667

- 1784 A. Manganelli
EPA

- HQ

- OW

- 2008

- 0667

- 1785 G. Lee
EPA

- HQ

- OW

- 2008

- 0667

- 1786 K. Merwin
EPA

- HQ

- OW

- 2008

- 0667

- 1787 S. Hathaway
EPA

- HQ

- OW

- 2008

- 0667

- 1788 P. Riggle
EPA

- HQ

- OW

- 2008

- 0667

- 1789 M. H. Stokes
EPA

- HQ

- OW

- 2008

- 0667

- 1790 R. Stambaugh
EPA

- HQ

- OW

- 2008

- 0667

- 1791 J. CunninghamIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1792 E. Callenbach
EPA

- HQ

- OW

- 2008

- 0667

- 1793 J. Millikin
EPA

- HQ

- OW

- 2008

- 0667

- 1794 M. Pezzati
EPA

- HQ

- OW

- 2008

- 0667

- 1795 E. Schlaikjer
EPA

- HQ

- OW

- 2008

- 0667

- 1796 J. Chase
EPA

- HQ

- OW

- 2008

- 0667

- 1797 G. Hopkins
EPA

- HQ

- OW

- 2008

- 0667

- 1798 A. Heugel
EPA

- HQ

- OW

- 2008

- 0667

- 1799 E. Leviseur
EPA

- HQ

- OW

- 2008

- 0667

- 1800 L. Zeis
EPA

- HQ

- OW

- 2008

- 0667

- 1801 N. Reed
EPA

- HQ

- OW

- 2008

- 0667

- 1802 B. Hall
EPA

- HQ

- OW

- 2008

- 0667

- 1803 C. Willett
EPA

- HQ

- OW

- 2008

- 0667

- 1804 L. Carpenter
EPA

- HQ

- OW

- 2008

- 0667

- 1805 L. Wally
EPA

- HQ

- OW

- 2008

- 0667

- 1806 K. Young
EPA

- HQ

- OW

- 2008

- 0667

- 1807 D. Luck
EPA

- HQ

- OW

- 2008

- 0667

- 1808 K. Crane
EPA

- HQ

- OW

- 2008

- 0667

- 1809 M. Cleveland

- Ryan
EPA

- HQ

- OW

- 2008

- 0667

- 1810 D. Cleveland

- Ryan
EPA

- HQ

- OW

- 2008

- 0667

- 1811 L. Weinberg
EPA

- HQ

- OW

- 2008

- 0667

- 1812 T. MacKenzie
EPA

- HQ

- OW

- 2008

- 0667

- 1813 M. W. Hutson
EPA

- HQ

- OW

- 2008

- 0667

- 1814 V. Azpuru
EPA

- HQ

- OW

- 2008

- 0667

- 1815 S. Kuticka
EPA

- HQ

- OW

- 2008

- 0667

- 1816 Dr. C. Blaisdell
EPA

- HQ

- OW

- 2008

- 0667

- 1817 S. Calender
EPA

- HQ

- OW

- 2008

- 0667

- 1818 K. Greenwald
EPA

- HQ

- OW

- 2008

- 0667

- 1819 L. Kostalik
EPA

- HQ

- OW

- 2008

- 0667

- 1820 J. Shields
EPA

- HQ

- OW

- 2008

- 0667

- 1821 B. De Castro
EPA

- HQ

- OW

- 2008

- 0667

- 1822 K. A. Irwin
EPA

- HQ

- OW

- 2008

- 0667

- 1823 C. W. Gloger
EPA

- HQ

- OW

- 2008

- 0667

- 1824 A. Murphy
EPA

- HQ

- OW

- 2008

- 0667

- 1825 M. Swiger
EPA

- HQ

- OW

- 2008

- 0667

- 1826 P. Hopkins
EPA

- HQ

- OW

- 2008

- 0667

- 1827 J. Steitz
EPA

- HQ

- OW

- 2008

- 0667

- 1828 L. Lambeth
EPA

- HQ

- OW

- 2008

- 0667

- 1829 T. and Y. Wootten
EPA

- HQ

- OW

- 2008

- 0667

- 1830 T. and J. GreenwaldIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1831 P. Matejcek
EPA

- HQ

- OW

- 2008

- 0667

- 1832 J. R. Herron
EPA

- HQ

- OW

- 2008

- 0667

- 1833 S. Lilley
EPA

- HQ

- OW

- 2008

- 0667

- 1834 D. Phillips
EPA

- HQ

- OW

- 2008

- 0667

- 1835 Dr. M. Carlson
EPA

- HQ

- OW

- 2008

- 0667

- 1836 M. Leven
EPA

- HQ

- OW

- 2008

- 0667

- 1837 P. Check
EPA

- HQ

- OW

- 2008

- 0667

- 1838 S. Stevens
EPA

- HQ

- OW

- 2008

- 0667

- 1839 C. A. Russell
EPA

- HQ

- OW

- 2008

- 0667

- 1840 J. Wanshel
EPA

- HQ

- OW

- 2008

- 0667

- 1841 J. Giambrone
EPA

- HQ

- OW

- 2008

- 0667

- 1842 M. Spilkowitz
EPA

- HQ

- OW

- 2008

- 0667

- 1843 R. Gentry
EPA

- HQ

- OW

- 2008

- 0667

- 1844 J. MacLean
EPA

- HQ

- OW

- 2008

- 0667

- 1845 P. Moctezuma
EPA

- HQ

- OW

- 2008

- 0667

- 1846 M. Halligan
EPA

- HQ

- OW

- 2008

- 0667

- 1847 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1848 M. Culley
EPA

- HQ

- OW

- 2008

- 0667

- 1849 C. Schosser
EPA

- HQ

- OW

- 2008

- 0667

- 1850 E. Pimentel
EPA

- HQ

- OW

- 2008

- 0667

- 1851 G. Camhi
EPA

- HQ

- OW

- 2008

- 0667

- 1852 W. Southworth
EPA

- HQ

- OW

- 2008

- 0667

- 1853 R. Kofler
EPA

- HQ

- OW

- 2008

- 0667

- 1854 D. Graham
EPA

- HQ

- OW

- 2008

- 0667

- 1855 M. Finklea
EPA

- HQ

- OW

- 2008

- 0667

- 1856 F. Wade
EPA

- HQ

- OW

- 2008

- 0667

- 1857 J. Robbins
EPA

- HQ

- OW

- 2008

- 0667

- 1858 E. Sopoci
EPA

- HQ

- OW

- 2008

- 0667

- 1859 H. Whitson
EPA

- HQ

- OW

- 2008

- 0667

- 1860 M. Ajoie

- Sanedroff
EPA

- HQ

- OW

- 2008

- 0667

- 1861 D. Campbell
EPA

- HQ

- OW

- 2008

- 0667

- 1862 M. Wood
EPA

- HQ

- OW

- 2008

- 0667

- 1863 D. Waldron
EPA

- HQ

- OW

- 2008

- 0667

- 1864 S. Ellis
EPA

- HQ

- OW

- 2008

- 0667

- 1865 M. Michaelis
EPA

- HQ

- OW

- 2008

- 0667

- 1866 L. Epstein
EPA

- HQ

- OW

- 2008

- 0667

- 1867 P. Burks
EPA

- HQ

- OW

- 2008

- 0667

- 1868 A. Dorsch
EPA

- HQ

- OW

- 2008

- 0667

- 1869 B. RentonIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1870 A. Jenkins
EPA

- HQ

- OW

- 2008

- 0667

- 1871 M. Bailey
EPA

- HQ

- OW

- 2008

- 0667

- 1872 D. R. Nelson
EPA

- HQ

- OW

- 2008

- 0667

- 1873 D. Mitchell
EPA

- HQ

- OW

- 2008

- 0667

- 1874 C. Daly
EPA

- HQ

- OW

- 2008

- 0667

- 1875 R. Nydes
EPA

- HQ

- OW

- 2008

- 0667

- 1876 M. Hiatt
EPA

- HQ

- OW

- 2008

- 0667

- 1877 M. Johnson
EPA

- HQ

- OW

- 2008

- 0667

- 1878 D. Greene
EPA

- HQ

- OW

- 2008

- 0667

- 1879 R. DeLeo
EPA

- HQ

- OW

- 2008

- 0667

- 1880 L. Wilder
EPA

- HQ

- OW

- 2008

- 0667

- 1881 G. Crouse
EPA

- HQ

- OW

- 2008

- 0667

- 1882 D. and S. Pettus
EPA

- HQ

- OW

- 2008

- 0667

- 1883 C. Buck
EPA

- HQ

- OW

- 2008

- 0667

- 1884 E. Fraser
EPA

- HQ

- OW

- 2008

- 0667

- 1885 T. Conroy
EPA

- HQ

- OW

- 2008

- 0667

- 1886 A. Lum
EPA

- HQ

- OW

- 2008

- 0667

- 1887 M. Rudinow
EPA

- HQ

- OW

- 2008

- 0667

- 1888 T. Brainerd
EPA

- HQ

- OW

- 2008

- 0667

- 1889 A. Genna
EPA

- HQ

- OW

- 2008

- 0667

- 1890 J. Ross
EPA

- HQ

- OW

- 2008

- 0667

- 1891 C. A. Berg
EPA

- HQ

- OW

- 2008

- 0667

- 1892 M. Gallelli
EPA

- HQ

- OW

- 2008

- 0667

- 1893 C. D. Cutshaw
EPA

- HQ

- OW

- 2008

- 0667

- 1894 S. Kuster
EPA

- HQ

- OW

- 2008

- 0667

- 1895 L. Corcoran
EPA

- HQ

- OW

- 2008

- 0667

- 1896 N. Vesel
EPA

- HQ

- OW

- 2008

- 0667

- 1897 L. Jaffee
EPA

- HQ

- OW

- 2008

- 0667

- 1898 J. Maron

- Friend
EPA

- HQ

- OW

- 2008

- 0667

- 1899 R. Siegfried
EPA

- HQ

- OW

- 2008

- 0667

- 1900 M. Oka
EPA

- HQ

- OW

- 2008

- 0667

- 1901 R. Robinson
EPA

- HQ

- OW

- 2008

- 0667

- 1902 C. Bobertz
EPA

- HQ

- OW

- 2008

- 0667

- 1903 B. Taylor
EPA

- HQ

- OW

- 2008

- 0667

- 1904 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 1905 M. Moody
EPA

- HQ

- OW

- 2008

- 0667

- 1906 J. De Hawkhurst
EPA

- HQ

- OW

- 2008

- 0667

- 1907 L. Torrence
EPA

- HQ

- OW

- 2008

- 0667

- 1908 M. SandelIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1909 Michael James Long
EPA

- HQ

- OW

- 2008

- 0667

- 1910 T. Maresco
EPA

- HQ

- OW

- 2008

- 0667

- 1911 S. Uribe
EPA

- HQ

- OW

- 2008

- 0667

- 1912 C. Carey
EPA

- HQ

- OW

- 2008

- 0667

- 1913 T. Warmbrand
EPA

- HQ

- OW

- 2008

- 0667

- 1914 R. R. Holt
EPA

- HQ

- OW

- 2008

- 0667

- 1915 J. Fletcher
EPA

- HQ

- OW

- 2008

- 0667

- 1916 M. Strawn
EPA

- HQ

- OW

- 2008

- 0667

- 1917 M. Ditlove
EPA

- HQ

- OW

- 2008

- 0667

- 1918 R. Leech
EPA

- HQ

- OW

- 2008

- 0667

- 1919 P. Sweeny
EPA

- HQ

- OW

- 2008

- 0667

- 1920 J. Colgan

- Davis
EPA

- HQ

- OW

- 2008

- 0667

- 1921 A. Mcneese
EPA

- HQ

- OW

- 2008

- 0667

- 1922 R. Hosek
EPA

- HQ

- OW

- 2008

- 0667

- 1923 S. Cardwell
EPA

- HQ

- OW

- 2008

- 0667

- 1924 M. Bristow
EPA

- HQ

- OW

- 2008

- 0667

- 1925 M. and A. Roberts
EPA

- HQ

- OW

- 2008

- 0667

- 1926 G. Collins
EPA

- HQ

- OW

- 2008

- 0667

- 1927 S. Stoudemire
EPA

- HQ

- OW

- 2008

- 0667

- 1928 R. Thornhill
EPA

- HQ

- OW

- 2008

- 0667

- 1929 J. Nappe
EPA

- HQ

- OW

- 2008

- 0667

- 1930 C. Sample
EPA

- HQ

- OW

- 2008

- 0667

- 1931 L. Bodiford
EPA

- HQ

- OW

- 2008

- 0667

- 1932 D. Solomon
EPA

- HQ

- OW

- 2008

- 0667

- 1933 P. Marriott
EPA

- HQ

- OW

- 2008

- 0667

- 1934 J. Delgado
EPA

- HQ

- OW

- 2008

- 0667

- 1935 M. McBride
EPA

- HQ

- OW

- 2008

- 0667

- 1936 G. Dev
EPA

- HQ

- OW

- 2008

- 0667

- 1937 D. Filipelli
EPA

- HQ

- OW

- 2008

- 0667

- 1938 J. Jensen
EPA

- HQ

- OW

- 2008

- 0667

- 1939 D. Douglas
EPA

- HQ

- OW

- 2008

- 0667

- 1940 A. Orange
EPA

- HQ

- OW

- 2008

- 0667

- 1941 L. Burns
EPA

- HQ

- OW

- 2008

- 0667

- 1942 G. Melzer
EPA

- HQ

- OW

- 2008

- 0667

- 1943 R. Huelsman
EPA

- HQ

- OW

- 2008

- 0667

- 1944 C. Dutka
EPA

- HQ

- OW

- 2008

- 0667

- 1945 P. Rorvik
EPA

- HQ

- OW

- 2008

- 0667

- 1946 G. Alderette
EPA

- HQ

- OW

- 2008

- 0667

- 1947 T. KardosIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1948 D. Mullen
EPA

- HQ

- OW

- 2008

- 0667

- 1949 P. Chang
EPA

- HQ

- OW

- 2008

- 0667

- 1950 L. Isbell
EPA

- HQ

- OW

- 2008

- 0667

- 1951 J. Sorrells
EPA

- HQ

- OW

- 2008

- 0667

- 1952 E. Balgemann
EPA

- HQ

- OW

- 2008

- 0667

- 1953 S. Anderson
EPA

- HQ

- OW

- 2008

- 0667

- 1954 L. Guthrie
EPA

- HQ

- OW

- 2008

- 0667

- 1955 G. Sindelar
EPA

- HQ

- OW

- 2008

- 0667

- 1956 M. A. Strom
EPA

- HQ

- OW

- 2008

- 0667

- 1957 G. Ayres
EPA

- HQ

- OW

- 2008

- 0667

- 1958 A. Collins
EPA

- HQ

- OW

- 2008

- 0667

- 1959 E. Lann

- Clark
EPA

- HQ

- OW

- 2008

- 0667

- 1960 Anitra J. Collins Kapstone Paper Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 1961 State Sen. Kathleen Vinehout Wisconsin State Senate, 31st District
EPA

- HQ

- OW

- 2008

- 0667

- 1962 Ernie Aschenbach Virginia Department of Game and Inland Fisheries (VA DGIF)
EPA

- HQ

- OW

- 2008

- 0667

- 1963 State Rep. Chris Danou Wisconsin State Assembly, 91st District
EPA

- HQ

- OW

- 2008

- 0667

- 1964 Debi Durham and Roger Lande Iowa Partnership for Economic Progress/Iowa Department of Natural Resources (IA DNR)
EPA

- HQ

- OW

- 2008

- 0667

- 1965 Kevin M. Brinegar Indiana Chamber of Commerce
EPA

- HQ

- OW

- 2008

- 0667

- 1966 Bill Cunningham Unions for Jobs and the Environment (UJAE)
EPA

- HQ

- OW

- 2008

- 0667

- 1967 State Sen. Dale W. Schultz Wisconsin State Senate, District 17
EPA

- HQ

- OW

- 2008

- 0667

- 1968 D. Holtz

- Eakin and S. Baskins
EPA

- HQ

- OW

- 2008

- 0667

- 1969 Andrew Fahlund American Rivers
EPA

- HQ

- OW

- 2008

- 0667

- 1970 Mark R. Vickery Texas Commission on Environmental Quality (TCEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 1971 A. Keesing
EPA

- HQ

- OW

- 2008

- 0667

- 1972 W. J. Schreier
EPA

- HQ

- OW

- 2008

- 0667

- 1973 S. Lim
EPA

- HQ

- OW

- 2008

- 0667

- 1974 R. Downing
EPA

- HQ

- OW

- 2008

- 0667

- 1975 R. Leibowitz
EPA

- HQ

- OW

- 2008

- 0667

- 1976 Dr. J. Weinstein
EPA

- HQ

- OW

- 2008

- 0667

- 1977 J. Townsel
EPA

- HQ

- OW

- 2008

- 0667

- 1978 M. Alexander
EPA

- HQ

- OW

- 2008

- 0667

- 1979 A. I. Aurelio
EPA

- HQ

- OW

- 2008

- 0667

- 1980 P. Johnson
EPA

- HQ

- OW

- 2008

- 0667

- 1981 S. Krauss
EPA

- HQ

- OW

- 2008

- 0667

- 1982 H. D. Shumaker
EPA

- HQ

- OW

- 2008

- 0667

- 1983 P. Ide
EPA

- HQ

- OW

- 2008

- 0667

- 1984 C. BirchIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 1985 R. Grover
EPA

- HQ

- OW

- 2008

- 0667

- 1986 J. Kozlowski
EPA

- HQ

- OW

- 2008

- 0667

- 1987 J. Black
EPA

- HQ

- OW

- 2008

- 0667

- 1988 K. Allison
EPA

- HQ

- OW

- 2008

- 0667

- 1989 C. VaJames
EPA

- HQ

- OW

- 2008

- 0667

- 1990 C. Crooke
EPA

- HQ

- OW

- 2008

- 0667

- 1991 W. Ip
EPA

- HQ

- OW

- 2008

- 0667

- 1992 M. Monma
EPA

- HQ

- OW

- 2008

- 0667

- 1993 D., D., D. and B. Poole
EPA

- HQ

- OW

- 2008

- 0667

- 1994 E. Omalley
EPA

- HQ

- OW

- 2008

- 0667

- 1995 D. Welsch
EPA

- HQ

- OW

- 2008

- 0667

- 1996 K. Arellanes
EPA

- HQ

- OW

- 2008

- 0667

- 1997 D. C. Wilson
EPA

- HQ

- OW

- 2008

- 0667

- 1998 C. Burns
EPA

- HQ

- OW

- 2008

- 0667

- 1999 M. Rae
EPA

- HQ

- OW

- 2008

- 0667

- 2000 T. Frank
EPA

- HQ

- OW

- 2008

- 0667

- 2001 Dr. K. Gunter
EPA

- HQ

- OW

- 2008

- 0667

- 2002 P. Mccollim
EPA

- HQ

- OW

- 2008

- 0667

- 2003 J. K. Hedges
EPA

- HQ

- OW

- 2008

- 0667

- 2004 Garry A. Brown and Jeanne M. Fox National Association of Regulatory Utility Commissioners (NARUC)
EPA

- HQ

- OW

- 2008

- 0667

- 2005 Cindy B. Miller Florida Public Service Commission (PSC)
EPA

- HQ

- OW

- 2008

- 0667

- 2006 J. Avery
EPA

- HQ

- OW

- 2008

- 0667

- 2007 G. Spencer
EPA

- HQ

- OW

- 2008

- 0667

- 2008 Dr. J. Tullis
EPA

- HQ

- OW

- 2008

- 0667

- 2009 A. Almirola
EPA

- HQ

- OW

- 2008

- 0667

- 2010 M. O'Brien
EPA

- HQ

- OW

- 2008

- 0667

- 2011 M. Thorne
EPA

- HQ

- OW

- 2008

- 0667

- 2012 P. Beattie
EPA

- HQ

- OW

- 2008

- 0667

- 2013 B. Gorman
EPA

- HQ

- OW

- 2008

- 0667

- 2014 J. Garibaldi
EPA

- HQ

- OW

- 2008

- 0667

- 2015 S. Michael
EPA

- HQ

- OW

- 2008

- 0667

- 2016 P. Jones
EPA

- HQ

- OW

- 2008

- 0667

- 2017 Joe Geever Surfrider Foundation
EPA

- HQ

- OW

- 2008

- 0667

- 2018 D. Shanaman
EPA

- HQ

- OW

- 2008

- 0667

- 2019 A. Wasgatt
EPA

- HQ

- OW

- 2008

- 0667

- 2020 Ingrid Setzler Kansas City Board of Public Utilities (KCBPU)
EPA

- HQ

- OW

- 2008

- 0667

- 2021 K. Benzel
EPA

- HQ

- OW

- 2008

- 0667

- 2022 Dr. G. CrouseIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2023 C. Ridenour
EPA

- HQ

- OW

- 2008

- 0667

- 2024 M. Bennett
EPA

- HQ

- OW

- 2008

- 0667

- 2025 Dr. J. Unruh
EPA

- HQ

- OW

- 2008

- 0667

- 2026 T. Spencer
EPA

- HQ

- OW

- 2008

- 0667

- 2027 M. Martin
EPA

- HQ

- OW

- 2008

- 0667

- 2028 Dr. D. Kramer
EPA

- HQ

- OW

- 2008

- 0667

- 2029 I. Shaw
EPA

- HQ

- OW

- 2008

- 0667

- 2030 M. Dzindzeleta
EPA

- HQ

- OW

- 2008

- 0667

- 2031 M. Miller
EPA

- HQ

- OW

- 2008

- 0667

- 2032 L. St. John
EPA

- HQ

- OW

- 2008

- 0667

- 2033 L. Robin
EPA

- HQ

- OW

- 2008

- 0667

- 2034 J. Laiti
EPA

- HQ

- OW

- 2008

- 0667

- 2035 S. Wiebe
EPA

- HQ

- OW

- 2008

- 0667

- 2036 C. Dukes Scott South Carolina Office of Regulatory Staff (ORS) (Duke Energy)
EPA

- HQ

- OW

- 2008

- 0667

- 2037 R. Dimatteo
EPA

- HQ

- OW

- 2008

- 0667

- 2038 M. Scott
EPA

- HQ

- OW

- 2008

- 0667

- 2039 A. Payne
EPA

- HQ

- OW

- 2008

- 0667

- 2040 T. B. Silverman
EPA

- HQ

- OW

- 2008

- 0667

- 2041 S. Lannin
EPA

- HQ

- OW

- 2008

- 0667

- 2042 B. P. Gallagher
EPA

- HQ

- OW

- 2008

- 0667

- 2043 L. Godwin
EPA

- HQ

- OW

- 2008

- 0667

- 2044 State Sen. Paul G. Campbell, Jr. South Carolina State Senate (Duke Energy)
EPA

- HQ

- OW

- 2008

- 0667

- 2045 Robert M. Hitt III South Carolina Department of Commerce (Duke Energy)
EPA

- HQ

- OW

- 2008

- 0667

- 2046 James E. Earl Severstal Dearborn, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2047 James Thate Delta

- Montrose Electric Association
EPA

- HQ

- OW

- 2008

- 0667

- 2048 Stephen K. Davis Association of Illinois Electrical Cooperatives (AIEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2049 Michael Ralston Iowa Association of Business and Industry (ABI)
EPA

- HQ

- OW

- 2008

- 0667

- 2050 Leonard F. Hopkins Southern Illinois Power Cooperative (SIPC)
EPA

- HQ

- OW

- 2008

- 0667

- 2051 James F. Stine National Rural Electric Cooperative Association (NRECA)
EPA

- HQ

- OW

- 2008

- 0667

- 2052 Lewis F. Gossett South Carolina Manufacturers Alliance (SCMA)
EPA

- HQ

- OW

- 2008

- 0667

- 2053 State Rep. Chris Danou Wisconsin State Assembly, 91st District
EPA

- HQ

- OW

- 2008

- 0667

- 2054 Terry M. Hogan Wabash Valley Power Association (WVPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2056 R. Stambaugh
EPA

- HQ

- OW

- 2008

- 0667

- 2057 N. H. Gronlund
EPA

- HQ

- OW

- 2008

- 0667

- 2058 J. Tatarczuk
EPA

- HQ

- OW

- 2008

- 0667

- 2059 J. Archuleta
EPA

- HQ

- OW

- 2008

- 0667

- 2060 H. Blechar
EPA

- HQ

- OW

- 2008

- 0667

- 2061 J. WheelerIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2062 T. Harris
EPA

- HQ

- OW

- 2008

- 0667

- 2063 Susan L. Sylvester Wisconsin Department of Natural Resources (WI DNR)
EPA

- HQ

- OW

- 2008

- 0667

- 2064 R. Bloom
EPA

- HQ

- OW

- 2008

- 0667

- 2065 State Sen. Mary Jo White, et al. Pennsylvania State Senate and State House of Representatives
EPA

- HQ

- OW

- 2008

- 0667

- 2066 April Ingle Georgia River Network
EPA

- HQ

- OW

- 2008

- 0667

- 2067 State Sen. David T. Daniels Ohio State Senate, 17th District
EPA

- HQ

- OW

- 2008

- 0667

- 2068 Gov. Mary Fallin State of Oklahoma
EPA

- HQ

- OW

- 2008

- 0667

- 2069 State Sen. Terry Moulton Wisconsin State Senate, 23rd District
EPA

- HQ

- OW

- 2008

- 0667

- 2070 John W. Dwyer Lignite Energy Council (LEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2071 State Rep. Edward Brooks Wisconsin State Assembly, 50th District
EPA

- HQ

- OW

- 2008

- 0667

- 2072 State Rep. Bill Sandifer South Carolina State House of Representatives
EPA

- HQ

- OW

- 2008

- 0667

- 2073 Gary Hanson and Chris Nelson South Dakota Public Utilities Commission
EPA

- HQ

- OW

- 2008

- 0667

- 2074 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 2075 Mass Comment Campaign National Wildlife Federation Action Fund (NWF)

EPA

- HQ

- OW

- 2008

- 0667

- 2076 C. Lish
EPA

- HQ

- OW

- 2008

- 0667

- 2077 M. Bushnell
EPA

- HQ

- OW

- 2008

- 0667

- 2078 Nicholas A. Brown Southwest Power Pool, Inc. (SPP)
EPA

- HQ

- OW

- 2008

- 0667

- 2079 Jeff A. McNelly Anthracite Region Independent Power Producers Association (ARIPPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2080 Rich Cogen Ohio River Foundation
EPA

- HQ

- OW

- 2008

- 0667

- 2081 Bill Cunningham Unions for Jobs and the Environment (UJAE)
EPA

- HQ

- OW

- 2008

- 0667

- 2082 Michael Bradley Clean Energy Group
EPA

- HQ

- OW

- 2008

- 0667

- 2083 J. Evan
EPA

- HQ

- OW

- 2008

- 0667

- 2084 K. Wright
EPA

- HQ

- OW

- 2008

- 0667

- 2085 A. Acker
EPA

- HQ

- OW

- 2008

- 0667

- 2086 L. Greenawalt
EPA

- HQ

- OW

- 2008

- 0667

- 2087 C. Johnson
EPA

- HQ

- OW

- 2008

- 0667

- 2088 M. Pilley
EPA

- HQ

- OW

- 2008

- 0667

- 2089 M. Huddleston
EPA

- HQ

- OW

- 2008

- 0667

- 2090 M. Strawn
EPA

- HQ

- OW

- 2008

- 0667

- 2091 A. Pahl
EPA

- HQ

- OW

- 2008

- 0667

- 2092 F. Lamberts
EPA

- HQ

- OW

- 2008

- 0667

- 2093 W. Johnson
EPA

- HQ

- OW

- 2008

- 0667

- 2094 S. Reid
EPA

- HQ

- OW

- 2008

- 0667

- 2095 E. Thorpe
EPA

- HQ

- OW

- 2008

- 0667

- 2096 T. BubulIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2097 K. Simmons
EPA

- HQ

- OW

- 2008

- 0667

- 2098 C. Ringgold
EPA

- HQ

- OW

- 2008

- 0667

- 2099 P. Nolte
EPA

- HQ

- OW

- 2008

- 0667

- 2100 R. Vandehey
EPA

- HQ

- OW

- 2008

- 0667

- 2101 S. Waldon
EPA

- HQ

- OW

- 2008

- 0667

- 2102 David K. Perkins SABIC Innovative Plastics
EPA

- HQ

- OW

- 2008

- 0667

- 2103 State Rep. Scott Suder Wisconsin State Assembly, 69th District
EPA

- HQ

- OW

- 2008

- 0667

- 2104 Gov. Scott Walker State of Wisconsin
EPA

- HQ

- OW

- 2008

- 0667

- 2105 State Sen. Pam Galloway and State Rep. Mary Williams Wisconsin State Senate, 29th District and Wisconsin State Assembly, 87th District
EPA

- HQ

- OW

- 2008

- 0667

- 2106 Robert F. Powelson, et al Pennsylvania Public Utility Commission
EPA

- HQ

- OW

- 2008

- 0667

- 2107 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 2108 Scott Davis Arizona Public Service Company (APS)
EPA

- HQ

- OW

- 2008

- 0667

- 2109 Scott J. Nally Ohio Environmental Protection Agency (EPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2110 Stephen Minick Texas Association of Business
EPA

- HQ

- OW

- 2008

- 0667

- 2111 Ron Flax

- Davidson Hudson River Sloop Clearwater, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2112 Jeff A. McNelly Anthracite Region Independent Power Producers Association (ARIPPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2113 N. Spitzfaden
EPA

- HQ

- OW

- 2008

- 0667

- 2114 Willie R. Taylor United States Department of the Interior (DOI)
EPA

- HQ

- OW

- 2008

- 0667

- 2115 State Sen. Bob Rucho North Carolina State Senate
EPA

- HQ

- OW

- 2008

- 0667

- 2116 State Sen. Dan Sparks Minnesota State Senate, District 27,
EPA

- HQ

- OW

- 2008

- 0667

- 2117 M. A. Link
EPA

- HQ

- OW

- 2008

- 0667

- 2118 Trent A. Dougherty and Rachel L. Herbst Ohio Environmental Council (OEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2119 James S. Alves Florida Electric Power Coordinating Group, Inc. (FCG)
EPA

- HQ

- OW

- 2008

- 0667

- 2120 State Sen. Bruce Caswell Michigan State Senate, District 16
EPA

- HQ

- OW

- 2008

- 0667

- 2121 Patrick Bennett Indiana Manufacturers Association (IMA)
EPA

- HQ

- OW

- 2008

- 0667

- 2122 J. Capozzelli
EPA

- HQ

- OW

- 2008

- 0667

- 2123 Angila M. Retherford Vectren Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2124 Nysa L. Hogue Indianapolis Power and Light Company (IPL)
EPA

- HQ

- OW

- 2008

- 0667

- 2125 J. R. DeFriece
EPA

- HQ

- OW

- 2008

- 0667

- 2126 Craig Bressan Prairie State Generating Company LLC (PSGC)
EPA

- HQ

- OW

- 2008

- 0667

- 2127 State Sen. Julie Rosen and State Sen. Jeremy Miller Minnesota State Senate, Districts 24 and 31

EPA

- HQ

- OW

- 2008

- 0667

- 2128 State Rep. Nan Baker Ohio State House of Representatives, District 16
EPA

- HQ

- OW

- 2008

- 0667

- 2129 D. Canton
EPA

- HQ

- OW

- 2008

- 0667

- 2130 C. Laieski
EPA

- HQ

- OW

- 2008

- 0667

- 2131 B. LeonardIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2132 Otis B. Rawl, Jr. South Carolina Chamber of Commerce
EPA

- HQ

- OW

- 2008

- 0667

- 2134 Anthony N. Jacobs International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL

- CIO (Boilermakers Union)
EPA

- HQ

- OW

- 2008

- 0667

- 2135 Steven A. Thompson Oklahoma Department of Enviromental Quality (OK DEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 2136 State Sen. John Proos, et al. Michigan State Senate
EPA

- HQ

- OW

- 2008

- 0667

- 2137 State Rep. Nelson L. Hardwick South Carolina State House of Representatives
EPA

- HQ

- OW

- 2008

- 0667

- 2138 Gov. Haley Barbour State of Mississippi
EPA

- HQ

- OW

- 2008

- 0667

- 2139 William L. Kovacs United States Chamber of Commerce
EPA

- HQ

- OW

- 2008

- 0667

- 2140 Ronald R. Cox Hawaiian Electric Company
EPA

- HQ

- OW

- 2008

- 0667

- 2141 Jon A. Finlinson Intermountain Power Service Corporation (IPSC)
EPA

- HQ

- OW

- 2008

- 0667

- 2142 Patrick O. Loughlin Buckeye Power, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2143 Frank Prager Xcel Energy, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2144 Bruce W. Ramme We Energies
EPA

- HQ

- OW

- 2008

- 0667

- 2145 Douglas P. Mauro Rockland Capital Cape May Holdings (RCCMH)
EPA

- HQ

- OW

- 2008

- 0667

- 2146 Coleen H. Sullins North Carolina Department of Environment and Natural Resources (NCDENR)
EPA

- HQ

- OW

- 2008

- 0667

- 2147 Todd A. Snitchler Ohio Public Utilities Commission (PUC)
EPA

- HQ

- OW

- 2008

- 0667

- 2148 Anthony N. Jacobs International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL

- CIO (Boilermakers Union)
EPA

- HQ

- OW

- 2008

- 0667

- 2149 Walter L. Baker Association of State and Interstate Water Pollution Control Administrators (ASIWPCA)
EPA

- HQ

- OW

- 2008

- 0667

- 2150 Scott Newberry Florida Keys Electric Cooperative Association Inc (FKEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2151 Randall R. LaBauve NextEra Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2152 Thomas L. Hernandez Tampa Electric Company (TEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2153 Pilar Patterson New Jersey Department of Environmental Protection (NJDEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2154 JoAnne Rau The Dayton Power and Light Company (DP&L)
EPA

- HQ

- OW

- 2008

- 0667

- 2155 Mark A. Shepherd Topaz Power Holding, LLC (TPH)
EPA

- HQ

- OW

- 2008

- 0667

- 2156 Thomas R. Kuhn Edison Electric Institute (EEI)
EPA

- HQ

- OW

- 2008

- 0667

- 2157 Hal Bozarth Chemistry Council of New Jersey (CCNJ)
EPA

- HQ

- OW

- 2008

- 0667

- 2158 Robert D. Teetz National Grid
EPA

- HQ

- OW

- 2008

- 0667

- 2159 C. Lish
EPA

- HQ

- OW

- 2008

- 0667

- 2160 Kevin Wanttaja Salt River Project (SRP)
EPA

- HQ

- OW

- 2008

- 0667

- 2161 Jay Hudson Santee Cooper
EPA

- HQ

- OW

- 2008

- 0667

- 2162 Keith Stephens PowerSouth Energy Cooperative
EPA

- HQ

- OW

- 2008

- 0667

- 2163 Scott Wolff Honeywell International, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2164 State Rep. Lee Nerison Wisconsin State Assembly, 96th DistrictIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2165 Julie Meka Carter Arizona

- New Mexico Chapter of the American Fisheries Society (AZ

- NM Chapter)
EPA

- HQ

- OW

- 2008

- 0667

- 2166 John T. Graves Minnkota Power Cooperative Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2167 George Bakun ConocoPhillips Company, Bayway Refinery
EPA

- HQ

- OW

- 2008

- 0667

- 2168 Jim Donofrio and Jim Hutchinson, Jr Recreational Fishing Alliance (RFA) and the New York Sportfishing Federation (NYSF)
EPA

- HQ

- OW

- 2008

- 0667

- 2169 S. L. Dannhardt STP Nuclear Operating Company (STPNOC)
EPA

- HQ

- OW

- 2008

- 0667

- 2170 Larry J. Koshire Rochester Public Utilities (RPU)
EPA

- HQ

- OW

- 2008

- 0667

- 2171 Russell Frye Cooling Water Intake Structure Coalition
EPA

- HQ

- OW

- 2008

- 0667

- 2172 Edwin D. Hill International Brotherhood of Electrical Workers (IBEW)
EPA

- HQ

- OW

- 2008

- 0667

- 2173 Sam L. Phillips Louisiana Department of Environmental Quality (LDEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 2174 Nancy A. Evans PPL Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2175 Terry P. Jensky Wisconsin Public Service Corporation (WPSC)
EPA

- HQ

- OW

- 2008

- 0667

- 2176 Maureen Gannon PNM Resources (PMNR)
EPA

- HQ

- OW

- 2008

- 0667

- 2177 Linda Whelan Dynegy Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2178 Shirley M. Ruffin SCANA Corporation (SCANA)
EPA

- HQ

- OW

- 2008

- 0667

- 2179 Henry Eby Lower Colorado River Authority (LCRA)
EPA

- HQ

- OW

- 2008

- 0667

- 2180 Stephen Donovan Taunton Municipal Lighting Plant (TMLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2181 Pamela F. Faggert Dominion Resources
EPA

- HQ

- OW

- 2008

- 0667

- 2182 Bruce Parker Electric Energy, Inc. (EEI)
EPA

- HQ

- OW

- 2008

- 0667

- 2183 David Friedman National Petrochemical and Refiners Association (NPRA)
EPA

- HQ

- OW

- 2008

- 0667

- 2184 John W. Myers Tennessee Valley Authority (TVA)
EPA

- HQ

- OW

- 2008

- 0667

- 2185 Brian H. Moeck The Large Public Power Council (LPPC)
EPA

- HQ

- OW

- 2008

- 0667

- 2186 Jerry Bonanno and William Skaff Nuclear Energy Institute (NEI)
EPA

- HQ

- OW

- 2008

- 0667

- 2187 Gov. Matthew H. Mead State of Wyoming
EPA

- HQ

- OW

- 2008

- 0667

- 2188 James Murphy National Wildlife Federation (NWF), et al.
EPA

- HQ

- OW

- 2008

- 0667

- 2189 Douglas J. Fulle Oglethorpe Power Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2190 Chris M. Hobson Southern Company
EPA

- HQ

- OW

- 2008

- 0667

- 2191 Jeffrey P. deBessonet South Carolina Department of Health and Environmental Control (SCDHEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2192 Eric B. Svenson, Jr. PSEG Services Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2193 John Reese Astoria Generating Company (AGC)
EPA

- HQ

- OW

- 2008

- 0667

- 2194 Henry T. Graham Louisiana Chemical Association (LCA) (Kean Miller LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2195 David M. Fraley City Utilities of Springfield, Missouri (CU)
EPA

- HQ

- OW

- 2008

- 0667

- 2196 Michael Brom PCS Nitrogen Fertilizer, L.P.
EPA

- HQ

- OW

- 2008

- 0667

- 2197 Roger E. Claff American Petroleum Institute (API)
EPA

- HQ

- OW

- 2008

- 0667

- 2198 Ron Shipman Georgia Power Company
EPA

- HQ

- OW

- 2008

- 0667

- 2199 Erik Silvola Great River Energy (GRE)
EPA

- HQ

- OW

- 2008

- 0667

- 2200 Douglas A. Dixon Electric Power Research Institute (EPRI)Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2201 Justin G. Johnson Vermont Department of Environmental Conservation (VT DEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2202 Shawn Seaman and Edwal Stone Maryland Department of Natural Resources and Department of the Environment (MD DNR and DOE)
EPA

- HQ

- OW

- 2008

- 0667

- 2203 Gavin J. Donohue Independent Power Producers of New York, Inc. (IPPNY)
EPA

- HQ

- OW

- 2008

- 0667

- 2204 William C. Herz The Fertilizer Institute (TFI)
EPA

- HQ

- OW

- 2008

- 0667

- 2205 Thomas Howard California State Water Resources Control Board (CA SWRCB)
EPA

- HQ

- OW

- 2008

- 0667

- 2206 Douglas W. Craven Little Traverse Bay Bands of Odawa Indians (LTBB)
EPA

- HQ

- OW

- 2008

- 0667

- 2207 Nancy M. Clark American Chemistry Council (ACC)
EPA

- HQ

- OW

- 2008

- 0667

- 2208 Jeffrey S. Longsworth Alcoa, Inc. (Barnes & Thornburg LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2209 Patricia D. Horn and Kenneth E. Raymond Oklahoma Gas and Electric Company (OG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 2210 James N. Christman Utility Water Act Group (UWAG) (Hunton and Williams LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2211 Cathy S. Woolums MidAmerican Energy Holdings Company
EPA

- HQ

- OW

- 2008

- 0667

- 2212 John R. Westendorf Occidental Chemical Corporation (OxyChem)
EPA

- HQ

- OW

- 2008

- 0667

- 2213 Bobby Byers Texas Chapter of the Coastal Conservation Association (CCA Texas)
EPA

- HQ

- OW

- 2008

- 0667

- 2214 Patrick O. Loughlin Buckeye Power, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2215 Eric Myers and Nathan Craig Duke Energy Business Services, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2216 Michael Bradley Clean Energy Group
EPA

- HQ

- OW

- 2008

- 0667

- 2217 William J. Donohue Exelon Business Services Company
EPA

- HQ

- OW

- 2008

- 0667

- 2218 Maya K. van Rossum Delaware Riverkeeper Network (DRN)
EPA

- HQ

- OW

- 2008

- 0667

- 2219 E. Chase
EPA

- HQ

- OW

- 2008

- 0667

- 2220 Gregory W. Baise Illinois Manufacturer's Association (IMA)
EPA

- HQ

- OW

- 2008

- 0667

- 2221 Susanne M. Herald GE Aviation
EPA

- HQ

- OW

- 2008

- 0667

- 2222 Matthew Prine Indiana Utility Shareholders Association
EPA

- HQ

- OW

- 2008

- 0667

- 2223 Steve List NewPage Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2224 Mark A. Hartle The Pennsylvania Fish and Boat Commission (PFBC)
EPA

- HQ

- OW

- 2008

- 0667

- 2225 Richard T. Metcalf Louisiana (LA) Mid

- Continent Oil and Gas Association (LMOGA)
EPA

- HQ

- OW

- 2008

- 0667

- 2226 Douglas P. Mauro Rockland Capital Cape May Holdings (RCCMH)
EPA

- HQ

- OW

- 2008

- 0667

- 2227 Gov. Beverly Eaves Perdue State of North Carolina
EPA

- HQ

- OW

- 2008

- 0667

- 2228 Richard G. Burud Nobles Cooperative Electric
EPA

- HQ

- OW

- 2008

- 0667

- 2229 Abbie Krebsbach Montana

- Dakota Utilities Co.
EPA

- HQ

- OW

- 2008

- 0667

- 2230 MaryAnn J. Otter Morro Coast Audubon Society
EPA

- HQ

- OW

- 2008

- 0667

- 2231 Fred T. Harnack United States Steel Corporation (USS)
EPA

- HQ

- OW

- 2008

- 0667

- 2232 William Creal Michigan Department of Environmental Quality (MDEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 2233 Jared Morrison Westar Energy, Inc.Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2234 Terry Graumann Otter Tail Power Company
EPA

- HQ

- OW

- 2008

- 0667

- 2235 Dustin McDaniel Arkansas Attorney General, et al.
EPA

- HQ

- OW

- 2008

- 0667

- 2236 Robert Underwood Delaware Department of Natural Resources and Environmental Control (DNREC)
EPA

- HQ

- OW

- 2008

- 0667

- 2237 Douglas R. Kopp Alliant Energy Corporate Services, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2238 Alan R. Wood American Electric Power, Inc. (AEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2239 Matthew J. Dunn Illinois Attorney General's Office
EPA

- HQ

- OW

- 2008

- 0667

- 2240 Orjiakor N. Isiogu, et al. Michigan Public Service Commission
EPA

- HQ

- OW

- 2008

- 0667

- 2241 Pamela F. Faggert Dominion Resources
EPA

- HQ

- OW

- 2008

- 0667

- 2242 Jerry Bonanno and William Skaff Nuclear Energy Institute (NEI)
EPA

- HQ

- OW

- 2008

- 0667

- 2243 Steven L. Kline Pacific Gas and Electric Company (PG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 2244 Caroline Choi Progress Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2245 Basil G. Constantelos Midwest Generation, Edison Mission Energy, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2246 Mark P. Thomasson Florida Department of Environmental Protection (FL DEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2247 Ann W. McIver Citizens Energy Group
EPA

- HQ

- OW

- 2008

- 0667

- 2248 Michael L. Krancer Pennsylvania Department of Environmental Protection (DEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2249 Holly Propst Western Business Roundtable
EPA

- HQ

- OW

- 2008

- 0667

- 2250 Joe L. Citta, Jr. Nebraska Public Power District
EPA

- HQ

- OW

- 2008

- 0667

- 2251 James R. Korpi Cliffs Natural Resources Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2252 Ram Madugula ASME Knowledge and Community Power Division
EPA

- HQ

- OW

- 2008

- 0667

- 2253 Eric Miller and Shane Beck MBC Applied Environmental Sciences (MBC)
EPA

- HQ

- OW

- 2008

- 0667

- 2254 Jerry Purvis East Kentucky Power Cooperative (EKPC)
EPA

- HQ

- OW

- 2008

- 0667

- 2255 Jeannine M. Hammer FirstEnergy Corp. (FE)
EPA

- HQ

- OW

- 2008

- 0667

- 2256 Hanneke Counts Eastman Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2257 Steven C. Whitworth Ameren Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2258 John Humes Hoosier Energy REC, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2259 Dean C. DeLorey The Amalgamated Sugar Company LLC (TASCO)
EPA

- HQ

- OW

- 2008

- 0667

- 2260 Christopher A. Amato New York State Department of Environmental Conservation (NYSDEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2261 Donald R. Schregardus Department of The Navy, Department of Defense (DOD)
EPA

- HQ

- OW

- 2008

- 0667

- 2262 Daniel C. Esty Connecticut Department of Energy and Environmental Protection (CT DEEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2263 Donald Neal Calpine Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2264 Faith E. Bugel and Thomas Cmar The Alliance for the Great Lakes, et al. (Environmental Law & Policy Center and Natural Resources Defense Council)
EPA

- HQ

- OW

- 2008

- 0667

- 2265 Paul A. Yost National Association of Manufacturers (NAM)
EPA

- HQ

- OW

- 2008

- 0667

- 2266 Russ Baker Omaha Public Power District (OPPD)Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2267 Roger Caiazza Environmental Energy Alliance of New York, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2268 Verne Shortell NRG Energy, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2269 Robert D. Bessette Council of Industrial Boiler Owners (CIBO)
EPA

- HQ

- OW

- 2008

- 0667

- 2270 Glenda L. Dean Alabama Department of Environmental Management (ADEM)
EPA

- HQ

- OW

- 2008

- 0667

- 2271 Thomas E. DuPlessis NOVA Chemicals Inc. (NOVA)
EPA

- HQ

- OW

- 2008

- 0667

- 2272 Traylor Champion Georgia

- Pacific LLC (GP)
EPA

- HQ

- OW

- 2008

- 0667

- 2273 E. Mitchell Roob, Jr. Indiana Economic Development Corporation (IEDC)
EPA

- HQ

- OW

- 2008

- 0667

- 2274 Michael G. Cashin Minnesota Power (ALLETE)
EPA

- HQ

- OW

- 2008

- 0667

- 2275 Mike Godfrey Alabama Power Company
EPA

- HQ

- OW

- 2008

- 0667

- 2276 Mark J. Sedlacek Los Angeles Department of Water and Power (LADWP)
EPA

- HQ

- OW

- 2008

- 0667

- 2277 Berdell Knowles JEA
EPA

- HQ

- OW

- 2008

- 0667

- 2278 John D. Free Alabama Public Service Commission (APSC)
EPA

- HQ

- OW

- 2008

- 0667

- 2279 Claire M. Olson Basin Electric Power Cooperative
EPA

- HQ

- OW

- 2008

- 0667

- 2280 Gov. Eddie Baza Calvo Island of Guam
EPA

- HQ

- OW

- 2008

- 0667

- 2281 Bobby Byers Texas Chapter of the Coastal Conservation Association (CCA Texas)
EPA

- HQ

- OW

- 2008

- 0667

- 2282 John Bentine and April Bott American Municipal Power, Inc. (AMP)
EPA

- HQ

- OW

- 2008

- 0667

- 2283 Jon Barrett IPR

- GDF SUEZ North America, Generation
EPA

- HQ

- OW

- 2008

- 0667

- 2284 Mindy Lubber Ceres
EPA

- HQ

- OW

- 2008

- 0667

- 2285 Bob Martin New Jersey Department of Environmental Protection (NJDEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2286 Elizabeth Wheeler Clean Wisconsin
EPA

- HQ

- OW

- 2008

- 0667

- 2287 Douglas R. Larson Dakota Electric Association (DEA)
EPA

- HQ

- OW

- 2008

- 0667

- 2288 Patricia D. Horn and Kenneth E. Raymond Oklahoma Gas and Electric Company (OG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 2289 Gov. Gary R. Herbert, et al. State of Utah, et al.
EPA

- HQ

- OW

- 2008

- 0667

- 2290 Louisa Eclarinal CPS Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2291 Maria Valdez The Dow Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2292 Thomas C. Perry National Mining Association (NMA)
EPA

- HQ

- OW

- 2008

- 0667

- 2293 Adam H. Putnam Florida Department of Agriculture and Consumer Services
EPA

- HQ

- OW

- 2008

- 0667

- 2294 Mike Godfrey Alabama Power Company (Balch & Bingham LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2295 Jolene M. Thompson American Municipal Power, Inc. (AMP)
EPA

- HQ

- OW

- 2008

- 0667

- 2296 Mass Comment Campaign Food & Water Watch

EPA

- HQ

- OW

- 2008

- 0667

- 2297 William C. Herz The Fertilizer Institute (TFI)
EPA

- HQ

- OW

- 2008

- 0667

- 2298 John Fainter, Jr. Association of Electric Companies of Texas (AECT)
EPA

- HQ

- OW

- 2008

- 0667

- 2299 Bill Matthews Cleco Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2300 William J. Skrabak City of Alexandria, Virginia
EPA

- HQ

- OW

- 2008

- 0667

- 2301 Gov. Eddie Baza Calvo Island of GuamIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2302 Jim Weeks Michigan Municipal Electric Association (MMEA)
EPA

- HQ

- OW

- 2008

- 0667

- 2303 Nicholas M. Demik Northern Indiana Public Service Company (NIPSCO)
EPA

- HQ

- OW

- 2008

- 0667

- 2304 John A. Gulvas Consumers Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2305 Nilaksh Kothari Manitowoc Public Utilities (MPU)
EPA

- HQ

- OW

- 2008

- 0667

- 2306 D. Artemis
EPA

- HQ

- OW

- 2008

- 0667

- 2307 W. Richards
EPA

- HQ

- OW

- 2008

- 0667

- 2308 R. L. Ramsay
EPA

- HQ

- OW

- 2008

- 0667

- 2309 N. Caswell
EPA

- HQ

- OW

- 2008

- 0667

- 2310 K. Manning
EPA

- HQ

- OW

- 2008

- 0667

- 2311 Edward R. Griegel Sunbury Generation LP
EPA

- HQ

- OW

- 2008

- 0667

- 2312 Theresa Pugh American Public Power Association (APPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2313 Michael L. Krancer Pennsylvania Department of Environmental Protection (DEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2314 Shawn Glacken Luminant
EPA

- HQ

- OW

- 2008

- 0667

- 2315 Edward R. Griegel Sunbury Generation LP
EPA

- HQ

- OW

- 2008

- 0667

- 2316 William J. Schulte Delaware Riverkeeper, et al. (Eastern Environmental Law Center (EELC))
EPA

- HQ

- OW

- 2008

- 0667

- 2317 G. Girard
EPA

- HQ

- OW

- 2008

- 0667

- 2318 J. Poirier
EPA

- HQ

- OW

- 2008

- 0667

- 2319 L. Fronce and T. Hall
EPA

- HQ

- OW

- 2008

- 0667

- 2320 L. Fidell
EPA

- HQ

- OW

- 2008

- 0667

- 2321 L. Barrett
EPA

- HQ

- OW

- 2008

- 0667

- 2322 J. Schriebman
EPA

- HQ

- OW

- 2008

- 0667

- 2323 P. Haggard
EPA

- HQ

- OW

- 2008

- 0667

- 2324 Dr. D. Sain
EPA

- HQ

- OW

- 2008

- 0667

- 2325 Dr. J. G. Garey
EPA

- HQ

- OW

- 2008

- 0667

- 2326 C. Krajnyk
EPA

- HQ

- OW

- 2008

- 0667

- 2327 Mark Zion Texas Public Power Association (TPPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2328 Michael A. Snyder Water Task Force of the Ohio Utility Group (Shumaker, Loop & Kendrick, LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2329 R. Atanasoff
EPA

- HQ

- OW

- 2008

- 0667

- 2330 Paul J. Allen and Steven L. Miller Constellation Energy Group, Inc. (CEG)/Constellation Energy Nuclear Group, LLC (CENG)
EPA

- HQ

- OW

- 2008

- 0667

- 2331 Scott Terhune C

- Water Technologies
EPA

- HQ

- OW

- 2008

- 0667

- 2332 April R. Bott City of Hamilton (Bott Law Group LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2333 D. Giordano
EPA

- HQ

- OW

- 2008

- 0667

- 2334 B. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 2335 L. Sturm
EPA

- HQ

- OW

- 2008

- 0667

- 2336 William Schulte Jersey City Environmental CommissionIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2337 Bob Martin New Jersey Department of Environmental Protection (NJDEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2338 S. Pena
EPA

- HQ

- OW

- 2008

- 0667

- 2339 B. Bean
EPA

- HQ

- OW

- 2008

- 0667

- 2340 Corey E. Olsen
EPA

- HQ

- OW

- 2008

- 0667

- 2341 H. Wallof
EPA

- HQ

- OW

- 2008

- 0667

- 2342 D. Chary
EPA

- HQ

- OW

- 2008

- 0667

- 2343 D. Cutter
EPA

- HQ

- OW

- 2008

- 0667

- 2344 H. Sellers
EPA

- HQ

- OW

- 2008

- 0667

- 2345 J. Robinson
EPA

- HQ

- OW

- 2008

- 0667

- 2346 M. Kissinger
EPA

- HQ

- OW

- 2008

- 0667

- 2347 Elise N. Zoli Entergy Corporation (Goodwin Procter LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2348 Dr. R. Ross
EPA

- HQ

- OW

- 2008

- 0667

- 2349 H. Carr
EPA

- HQ

- OW

- 2008

- 0667

- 2350 A. Ambler
EPA

- HQ

- OW

- 2008

- 0667

- 2351 G. Adams
EPA

- HQ

- OW

- 2008

- 0667

- 2352 E. Reiter
EPA

- HQ

- OW

- 2008

- 0667

- 2353 K. Wild
EPA

- HQ

- OW

- 2008

- 0667

- 2354 B. Jones
EPA

- HQ

- OW

- 2008

- 0667

- 2355 J. McCarthy
EPA

- HQ

- OW

- 2008

- 0667

- 2356 Paul M. Ling Kansas City Power & Light Company (KCP&L)
EPA

- HQ

- OW

- 2008

- 0667

- 2357 H. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 2358 D. Hodul
EPA

- HQ

- OW

- 2008

- 0667

- 2359 P. Baker
EPA

- HQ

- OW

- 2008

- 0667

- 2360 M. Saville
EPA

- HQ

- OW

- 2008

- 0667

- 2361 B. Grant
EPA

- HQ

- OW

- 2008

- 0667

- 2362 M. Brownlee
EPA

- HQ

- OW

- 2008

- 0667

- 2363 Charles F. Brown
EPA

- HQ

- OW

- 2008

- 0667

- 2364 N. Paradiso
EPA

- HQ

- OW

- 2008

- 0667

- 2365 M. Sayre
EPA

- HQ

- OW

- 2008

- 0667

- 2366 B. Bean
EPA

- HQ

- OW

- 2008

- 0667

- 2367 R. Flower
EPA

- HQ

- OW

- 2008

- 0667

- 2368 V. and B. Ulmer
EPA

- HQ

- OW

- 2008

- 0667

- 2369 R. Briand
EPA

- HQ

- OW

- 2008

- 0667

- 2370 M. Deradune
EPA

- HQ

- OW

- 2008

- 0667

- 2371 C. Willis
EPA

- HQ

- OW

- 2008

- 0667

- 2372 Tom Caprio
EPA

- HQ

- OW

- 2008

- 0667

- 2373 R. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 2374 David Bittner Delaware River Shad Fishermen's AssociationIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2375 R. Bloomgarden
EPA

- HQ

- OW

- 2008

- 0667

- 2376 M. Herman
EPA

- HQ

- OW

- 2008

- 0667

- 2377 E. and C. Fuller
EPA

- HQ

- OW

- 2008

- 0667

- 2378 S. F. Giuffrida
EPA

- HQ

- OW

- 2008

- 0667

- 2379 R. R. Holt
EPA

- HQ

- OW

- 2008

- 0667

- 2380 C. Schosser
EPA

- HQ

- OW

- 2008

- 0667

- 2381 G. Orbelian
EPA

- HQ

- OW

- 2008

- 0667

- 2382 C. Lester
EPA

- HQ

- OW

- 2008

- 0667

- 2383 M. and I. Spiegelman
EPA

- HQ

- OW

- 2008

- 0667

- 2384 S. Day
EPA

- HQ

- OW

- 2008

- 0667

- 2385 J. Rosenthal
EPA

- HQ

- OW

- 2008

- 0667

- 2386 Dr. J. Aronfreed
EPA

- HQ

- OW

- 2008

- 0667

- 2387 G. Gorman
EPA

- HQ

- OW

- 2008

- 0667

- 2388 L. Ruberg
EPA

- HQ

- OW

- 2008

- 0667

- 2389 P. Prouty
EPA

- HQ

- OW

- 2008

- 0667

- 2390 J. Ashbaugh
EPA

- HQ

- OW

- 2008

- 0667

- 2391 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2392 Gov. John R. Kasich State of Ohio
EPA

- HQ

- OW

- 2008

- 0667

- 2393 Rebecca Troutman Riverkeeper, Inc., et al.
EPA

- HQ

- OW

- 2008

- 0667

- 2394 H. Morriss Barney IV Texas Municipal Power Agency (TMPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2395 D. and A. Arnason
EPA

- HQ

- OW

- 2008

- 0667

- 2396 W. Herke
EPA

- HQ

- OW

- 2008

- 0667

- 2397 C. Dontopoulos
EPA

- HQ

- OW

- 2008

- 0667

- 2398 M. Randall
EPA

- HQ

- OW

- 2008

- 0667

- 2399 V. Mosca

- Clark
EPA

- HQ

- OW

- 2008

- 0667

- 2400 M. Wahl
EPA

- HQ

- OW

- 2008

- 0667

- 2401 B. Winholtz
EPA

- HQ

- OW

- 2008

- 0667

- 2402 N. J. Mac
EPA

- HQ

- OW

- 2008

- 0667

- 2403 D. Givers
EPA

- HQ

- OW

- 2008

- 0667

- 2404 A. Garlan
EPA

- HQ

- OW

- 2008

- 0667

- 2405 G. Crouse
EPA

- HQ

- OW

- 2008

- 0667

- 2406 C. Heilman
EPA

- HQ

- OW

- 2008

- 0667

- 2407 C. Burns
EPA

- HQ

- OW

- 2008

- 0667

- 2408 J. McPeek
EPA

- HQ

- OW

- 2008

- 0667

- 2409 L. Green
EPA

- HQ

- OW

- 2008

- 0667

- 2410 G. and D. Peters and D. Peters
EPA

- HQ

- OW

- 2008

- 0667

- 2411 C. Compton
EPA

- HQ

- OW

- 2008

- 0667

- 2412 J. Cunningham
EPA

- HQ

- OW

- 2008

- 0667

- 2413 D. EmardIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2414 S. Baker
EPA

- HQ

- OW

- 2008

- 0667

- 2415 E. Ogella
EPA

- HQ

- OW

- 2008

- 0667

- 2416 J. Fletcher
EPA

- HQ

- OW

- 2008

- 0667

- 2417 K. A. Reynolds
EPA

- HQ

- OW

- 2008

- 0667

- 2418 C. Dzubak
EPA

- HQ

- OW

- 2008

- 0667

- 2419 M. Rudinow
EPA

- HQ

- OW

- 2008

- 0667

- 2420 L. Williams
EPA

- HQ

- OW

- 2008

- 0667

- 2421 R. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 2422 R. Schutt
EPA

- HQ

- OW

- 2008

- 0667

- 2423 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 2424 J. Bradfield
EPA

- HQ

- OW

- 2008

- 0667

- 2425 M. Swanson
EPA

- HQ

- OW

- 2008

- 0667

- 2426 S. McAdam
EPA

- HQ

- OW

- 2008

- 0667

- 2427 R. Moody
EPA

- HQ

- OW

- 2008

- 0667

- 2428 A. Bauer
EPA

- HQ

- OW

- 2008

- 0667

- 2429 W. Eddleman
EPA

- HQ

- OW

- 2008

- 0667

- 2430 M. O'Rourke
EPA

- HQ

- OW

- 2008

- 0667

- 2431 E. Kaliss
EPA

- HQ

- OW

- 2008

- 0667

- 2432 Jim Littlefield Surfers' Environmental Alliance (SEA)
EPA

- HQ

- OW

- 2008

- 0667

- 2433 S. Hathaway
EPA

- HQ

- OW

- 2008

- 0667

- 2434 G. Payne
EPA

- HQ

- OW

- 2008

- 0667

- 2435 S. Sapier
EPA

- HQ

- OW

- 2008

- 0667

- 2436 S. Sapier
EPA

- HQ

- OW

- 2008

- 0667

- 2437 Jack McCurdy and David Nelson Coastal Alliance on Plant Expansion
EPA

- HQ

- OW

- 2008

- 0667

- 2438 D. Ylvisaker
EPA

- HQ

- OW

- 2008

- 0667

- 2439 G. Lee
EPA

- HQ

- OW

- 2008

- 0667

- 2440 J. Adler
EPA

- HQ

- OW

- 2008

- 0667

- 2441 C. Head

- Dylla
EPA

- HQ

- OW

- 2008

- 0667

- 2442 J. Wells
EPA

- HQ

- OW

- 2008

- 0667

- 2443 A. Long
EPA

- HQ

- OW

- 2008

- 0667

- 2444 J. Clemons
EPA

- HQ

- OW

- 2008

- 0667

- 2445 M. Ford
EPA

- HQ

- OW

- 2008

- 0667

- 2446 J. Meierotto
EPA

- HQ

- OW

- 2008

- 0667

- 2447 M. Wood
EPA

- HQ

- OW

- 2008

- 0667

- 2448 J. Quarles
EPA

- HQ

- OW

- 2008

- 0667

- 2449 J. Klein
EPA

- HQ

- OW

- 2008

- 0667

- 2450 A. Hengst
EPA

- HQ

- OW

- 2008

- 0667

- 2451 M. J. Cittadino
EPA

- HQ

- OW

- 2008

- 0667

- 2452 K. FloydIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2453 B. Coulson
EPA

- HQ

- OW

- 2008

- 0667

- 2454 L. M. Conklin
EPA

- HQ

- OW

- 2008

- 0667

- 2455 Dr. F. Taylor
EPA

- HQ

- OW

- 2008

- 0667

- 2456 Christina T. Wisdom Texas Chemical Council (TCC)
EPA

- HQ

- OW

- 2008

- 0667

- 2457 Jonathan Oliver Arkansas Electric Cooperative Corporation (AECC)
EPA

- HQ

- OW

- 2008

- 0667

- 2458 Al DePaoli AES North America, L.P. (AES)
EPA

- HQ

- OW

- 2008

- 0667

- 2459 Michael A. Livermore, et al. Institute for Policy Integrity, New York University School of Law
EPA

- HQ

- OW

- 2008

- 0667

- 2460 P. Micklin
EPA

- HQ

- OW

- 2008

- 0667

- 2461 C. Koons
EPA

- HQ

- OW

- 2008

- 0667

- 2462 C. Miller
EPA

- HQ

- OW

- 2008

- 0667

- 2463 K. Aston
EPA

- HQ

- OW

- 2008

- 0667

- 2464 D. Halzack
EPA

- HQ

- OW

- 2008

- 0667

- 2465 F. Duschl
EPA

- HQ

- OW

- 2008

- 0667

- 2466 F. Boles
EPA

- HQ

- OW

- 2008

- 0667

- 2467 J. Holmes
EPA

- HQ

- OW

- 2008

- 0667

- 2468 M. Molina
EPA

- HQ

- OW

- 2008

- 0667

- 2469 T. Higgins
EPA

- HQ

- OW

- 2008

- 0667

- 2470 D. Lacey
EPA

- HQ

- OW

- 2008

- 0667

- 2471 L. Schlegel
EPA

- HQ

- OW

- 2008

- 0667

- 2472 G. Schmitz
EPA

- HQ

- OW

- 2008

- 0667

- 2473 G. Farm
EPA

- HQ

- OW

- 2008

- 0667

- 2474 B. Glassman
EPA

- HQ

- OW

- 2008

- 0667

- 2475 H. Gartsman
EPA

- HQ

- OW

- 2008

- 0667

- 2476 B. Crow
EPA

- HQ

- OW

- 2008

- 0667

- 2477 J. Ward
EPA

- HQ

- OW

- 2008

- 0667

- 2478 P. Totton
EPA

- HQ

- OW

- 2008

- 0667

- 2479 Robert H. Reider DTE Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2480 Michalene Reilly Hoosier Energy REC, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2481 Sara Barczak and Josh Galperin High Risk Energy Choices/Southern Alliance for Clean Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2482 A. Ostrer
EPA

- HQ

- OW

- 2008

- 0667

- 2483 D. Bordenkircher
EPA

- HQ

- OW

- 2008

- 0667

- 2484 B. Ulbrich
EPA

- HQ

- OW

- 2008

- 0667

- 2485 M. Biernot
EPA

- HQ

- OW

- 2008

- 0667

- 2486 L. Wiener
EPA

- HQ

- OW

- 2008

- 0667

- 2487 L. Goin
EPA

- HQ

- OW

- 2008

- 0667

- 2488 M. Williams
EPA

- HQ

- OW

- 2008

- 0667

- 2489 L. BagleyIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2490 G. Schubert
EPA

- HQ

- OW

- 2008

- 0667

- 2491 C. Woodcock
EPA

- HQ

- OW

- 2008

- 0667

- 2492 A. Unger
EPA

- HQ

- OW

- 2008

- 0667

- 2493 J. Ramos
EPA

- HQ

- OW

- 2008

- 0667

- 2494 J. Scott The Bayou Manchac Group
EPA

- HQ

- OW

- 2008

- 0667

- 2495 J. Gregory
EPA

- HQ

- OW

- 2008

- 0667

- 2496 P. Manor
EPA

- HQ

- OW

- 2008

- 0667

- 2497 C. Shepard Connecticut Resource Recovery Authority
EPA

- HQ

- OW

- 2008

- 0667

- 2498 M. Stiefermann Central Electric Power Cooperative (CEEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2499 J. Dillard
EPA

- HQ

- OW

- 2008

- 0667

- 2500 Sen. James M. Inhofe United States Senate
EPA

- HQ

- OW

- 2008

- 0667

- 2501 S. Shields
EPA

- HQ

- OW

- 2008

- 0667

- 2502 R. Rolfe
EPA

- HQ

- OW

- 2008

- 0667

- 2503 J. Dunn
EPA

- HQ

- OW

- 2008

- 0667

- 2504 L. Lambeth
EPA

- HQ

- OW

- 2008

- 0667

- 2505 S. Nichols
EPA

- HQ

- OW

- 2008

- 0667

- 2506 C. Zook
EPA

- HQ

- OW

- 2008

- 0667

- 2507 K. Robinson
EPA

- HQ

- OW

- 2008

- 0667

- 2508 B. Duncan
EPA

- HQ

- OW

- 2008

- 0667

- 2509 Mass Comment Campaign Consumer Energy Alliance

EPA

- HQ

- OW

- 2008

- 0667

- 2510 J. Bindel Associated Electric Cooperative Inc. (AECI)
EPA

- HQ

- OW

- 2008

- 0667

- 2511 S. De Vos
EPA

- HQ

- OW

- 2008

- 0667

- 2512 K. Russell
EPA

- HQ

- OW

- 2008

- 0667

- 2513 M. Hnatowich
EPA

- HQ

- OW

- 2008

- 0667

- 2514 G.P. Kollarson
EPA

- HQ

- OW

- 2008

- 0667

- 2515 D. R. Nelson
EPA

- HQ

- OW

- 2008

- 0667

- 2516 K. Gibson
EPA

- HQ

- OW

- 2008

- 0667

- 2517 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 2518 E. Dieterle
EPA

- HQ

- OW

- 2008

- 0667

- 2519 J. Pisano
EPA

- HQ

- OW

- 2008

- 0667

- 2520 J. Corliss
EPA

- HQ

- OW

- 2008

- 0667

- 2521 W. Wilgus
EPA

- HQ

- OW

- 2008

- 0667

- 2522 J. Phillips
EPA

- HQ

- OW

- 2008

- 0667

- 2523 M. Stone
EPA

- HQ

- OW

- 2008

- 0667

- 2524 M. Karp
EPA

- HQ

- OW

- 2008

- 0667

- 2525 A. Cockrell
EPA

- HQ

- OW

- 2008

- 0667

- 2526 D. Worden
EPA

- HQ

- OW

- 2008

- 0667

- 2527 S. PyleIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2528 E. Craig
EPA

- HQ

- OW

- 2008

- 0667

- 2529 M. Hoffman
EPA

- HQ

- OW

- 2008

- 0667

- 2530 N. Bartol
EPA

- HQ

- OW

- 2008

- 0667

- 2531 S. Vilen
EPA

- HQ

- OW

- 2008

- 0667

- 2532 S. Young
EPA

- HQ

- OW

- 2008

- 0667

- 2533 D. Artley
EPA

- HQ

- OW

- 2008

- 0667

- 2534 K. Lieber
EPA

- HQ

- OW

- 2008

- 0667

- 2535 J. Emerson

- Cobb
EPA

- HQ

- OW

- 2008

- 0667

- 2536 J. van Luik
EPA

- HQ

- OW

- 2008

- 0667

- 2537 S. Young
EPA

- HQ

- OW

- 2008

- 0667

- 2538 A. Nowicki
EPA

- HQ

- OW

- 2008

- 0667

- 2539 Eric J. Brown Connecticut Business & Industry Association (CBIA)
EPA

- HQ

- OW

- 2008

- 0667

- 2540 David Holt Consumer Energy Alliance (CEA)
EPA

- HQ

- OW

- 2008

- 0667

- 2541 Charles Furst Delaware River Shad Fisherman's Association (DRSFA)
EPA

- HQ

- OW

- 2008

- 0667

- 2542 Richard G. Burud Federated Rural Electric Association
EPA

- HQ

- OW

- 2008

- 0667

- 2543 Douglas Fingerson Goodhue County Cooperative Electric (GCCE)
EPA

- HQ

- OW

- 2008

- 0667

- 2544 Kris Ingenthron McLeod Cooperative Power Association
EPA

- HQ

- OW

- 2008

- 0667

- 2545 L. David Glatt North Dakota Department of Health (ND DOH)
EPA

- HQ

- OW

- 2008

- 0667

- 2546 S. Foku
EPA

- HQ

- OW

- 2008

- 0667

- 2547 Kavan L. Stull The Empire District Electric Company
EPA

- HQ

- OW

- 2008

- 0667

- 2548 Jonathan Scott The Bayou Manchac Group
EPA

- HQ

- OW

- 2008

- 0667

- 2549 Amy Goldsmith New Jersey Environmental Federation
EPA

- HQ

- OW

- 2008

- 0667

- 2550 Michael M. Hertel Southern California Edison (SCE)
EPA

- HQ

- OW

- 2008

- 0667

- 2551 Doug Whitley Illinois Chamber of Commerce
EPA

- HQ

- OW

- 2008

- 0667

- 2552 Gov. Eddie Baza Calvo Island of Guam
EPA

- HQ

- OW

- 2008

- 0667

- 2553 Gov. John H. Lynch State of New Hampshire
EPA

- HQ

- OW

- 2008

- 0667

- 2554 K. Ferguson
EPA

- HQ

- OW

- 2008

- 0667

- 2555 E. Nickelson
EPA

- HQ

- OW

- 2008

- 0667

- 2556 S. Richards
EPA

- HQ

- OW

- 2008

- 0667

- 2557 M. Stinner
EPA

- HQ

- OW

- 2008

- 0667

- 2558 S. Mehrotra
EPA

- HQ

- OW

- 2008

- 0667

- 2559 J. Burgess
EPA

- HQ

- OW

- 2008

- 0667

- 2560 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 2561 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 2562 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 2563 P. AngeloIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2564 J. Link
EPA

- HQ

- OW

- 2008

- 0667

- 2565 J. Benson
EPA

- HQ

- OW

- 2008

- 0667

- 2566 J. Steitz
EPA

- HQ

- OW

- 2008

- 0667

- 2567 T. Sherman
EPA

- HQ

- OW

- 2008

- 0667

- 2568 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2569 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2570 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2571 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2572 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2573 Reed W. Super Riverkeeper, Inc., et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2574 State Rep. Gregory M. Davids Minnesota State House of Representatives
EPA

- HQ

- OW

- 2008

- 0667

- 2575 J. Miner
EPA

- HQ

- OW

- 2008

- 0667

- 2576 B. Russell
EPA

- HQ

- OW

- 2008

- 0667

- 2577 T. Lowell
EPA

- HQ

- OW

- 2008

- 0667

- 2578 B. Bender
EPA

- HQ

- OW

- 2008

- 0667

- 2579 L. Smith
EPA

- HQ

- OW

- 2008

- 0667

- 2580 W. Hodges
EPA

- HQ

- OW

- 2008

- 0667

- 2581 John G. Valeri Jr., Wolff and Samson (PSEG Fossil LLC and PSEG Nuclear LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 2582 John Rogers Union of Concerned Scientists (UCS)
EPA

- HQ

- OW

- 2008

- 0667

- 2584 H. Scanlon
EPA

- HQ

- OW

- 2008

- 0667

- 2585 J. Bulger
EPA

- HQ

- OW

- 2008

- 0667

- 2907 John W. Myers Tennessee Valley Authority (TVA)
EPA

- HQ

- OW

- 2008

- 0667

- 2908 John W. Myers Tennessee Valley Authority (TVA)
EPA

- HQ

- OW

- 2008

- 0667

- 2909 John J. Novak National Rural Electric Cooperative Association (NRECA)
EPA

- HQ

- OW

- 2008

- 0667

- 2910 Erik Silvola Great River Energy (GRE)
EPA

- HQ

- OW

- 2008

- 0667

- 2911 David Anderson Passavant Geiger
EPA

- HQ

- OW

- 2008

- 0667

- 2912 Shirley M. Ruffin SCANA Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2913 Michael J. Smith Capital Power Corporation (Murtha Cullina LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2914 John T. Graves Minnkota Power Cooperative, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2915 JoAnne Rau The Dayton Power & Light Company (DP&L)
EPA

- HQ

- OW

- 2008

- 0667

- 2916 Nick Schroeck Great Lakes Environmental Law Center (GLELC)
EPA

- HQ

- OW

- 2008

- 0667

- 2917 Mark Thoma Otter Tail Power Company
EPA

- HQ

- OW

- 2008

- 0667

- 2918 Dan Sutter The George Washington University Regulatory Studies Center
EPA

- HQ

- OW

- 2008

- 0667

- 2919 Winston K. Borkowski Florida Electric Power Coordinating Group, Inc. (FCG) (Hopping Green and Sams)
EPA

- HQ

- OW

- 2008

- 0667

- 2920 Kathleen Moser New York State Department of Environmental Conservation (NYSDEC)Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2921 Maria Valdez The Dow Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2922 Robert Rapenske Eagle Point Power Generation, LLC (EPPG)
EPA

- HQ

- OW

- 2008

- 0667

- 2923 Douglas Mauro Rockland Capital Cape May Holdings, LLC (RCCMH)
EPA

- HQ

- OW

- 2008

- 0667

- 2924 Steven C. Whitworth Ameren Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2925 Ronald R. Cox Hawaiian Electric Company
EPA

- HQ

- OW

- 2008

- 0667

- 2926 J. Michael Brown Ohio Valley Electric Corporation (OVEC) and Indiana

Kentucky Electric Corporation (IKEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2927 John M. MacDonald Public Service of New Hampshire (PSNH)
EPA

- HQ

- OW

- 2008

- 0667

- 2928 John J. Novak National Rural Electric Cooperative Association (NRECA)
EPA

- HQ

- OW

- 2008

- 0667

- 2929 Randall R. LaBauve NextEra Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2930 Kathleen Moser New York State Department of Environmental Conservation (NYSDEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2931 Melissa Lavinson Pacific Gas and Electric Company (PG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 2936 Patrick O'Loughlin Buckeye Power, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2937 Pam Faggert Dominion Resources Services, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2938 Basil G. Constantelos Midwest Generation, Edison Mission Energy, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2939 Patrick Blachard Calpine Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2940 Alan R. Wood American Electric Power (AEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2941 Hanneke Counts Eastman Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2942 William J. Donohue and Amy M. Trojecki Exelon Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2943 Russell Frye Cooling Water Intake Structure Coalition
EPA

- HQ

- OW

- 2008

- 0667

- 2944 Joe L. Citta, Jr. Nebraska Public Power District (NPPD)
EPA

- HQ

- OW

- 2008

- 0667

- 2945 Russell J. Furnari PSEG Power LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2946 Cari Boyce Duke Energy Business Services, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2947 Basil G. Constantelos Midwest Generation, Edison Mission Energy, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2948 Roger E. Claff American Petroleum Institute (API)
EPA

- HQ

- OW

- 2008

- 0667

- 2949 Roger E. Claff American Petroleum Institute (API)
EPA

- HQ

- OW

- 2008

- 0667

- 2950 Kevin M. Brinegar Indiana Chamber of Commerce
EPA

- HQ

- OW

- 2008

- 0667

- 2951 Pamela F. Faggert Dominion Resources Services, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2952 Michael Bradley Clean Energy Group
EPA

- HQ

- OW

- 2008

- 0667

- 2953 Chad Miller Montana

- Dakota Utilities Co.
EPA

- HQ

- OW

- 2008

- 0667

- 2954 Patrick Flowers Xcel Energy, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2955 Mike Godfrey Alabama Power Company (APC)
EPA

- HQ

- OW

- 2008

- 0667

- 2956 Louisa Eclarinal City Public Service of San Antonio (CPS Energy)
EPA

- HQ

- OW

- 2008

- 0667

- 2957 Ronald R. Cox Hawaiian Electric Company
EPA

- HQ

- OW

- 2008

- 0667

- 2958 J. Michael Brown Ohio Valley Electric Corporation (OVEC) and Indiana

Kentucky Electric Corporation (IKEC)
EPA

- HQ

- OW

- 2008

- 0667

- 2959 Michael L. Krancer Pennsylvania Department of Environmental Protection (DEP)Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 2960 Patrick Flowers Xcel Energy, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2961 Alexandra Dapolito Dunn Association of Clean Water Administrators (ACWA)
EPA

- HQ

- OW

- 2008

- 0667

- 2962 Douglas A. Dixon Electric Power Research Institute (EPRI)
EPA

- HQ

- OW

- 2008

- 0667

- 2963 Theresa Pugh American Public Power Association (APPA)
EPA

- HQ

- OW

- 2008

- 0667

- 2964 Curtis Q. Wagner Arkansas Electric Cooperative Corporation (AECC)
EPA

- HQ

- OW

- 2008

- 0667

- 2965 Maria Valdez The Dow Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2966 Randall R. LaBauve NextEra Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2967 Kavan L. Stull The Empire District Electric Company
EPA

- HQ

- OW

- 2008

- 0667

- 2968 Edward R. Griegel Sunbury Generation LP (Manko, Gold, Katcher & Fox, LP)
EPA

- HQ

- OW

- 2008

- 0667

- 2969 Pilar Patterson New Jersey Department of Environmental Protection (NJDEP)
EPA

- HQ

- OW

- 2008

- 0667

- 2970 Brendan Mascarenhas American Chemistry Council (ACC)
EPA

- HQ

- OW

- 2008

- 0667

- 2971 Fred T. Harnack United States Steel Corporation (USS)
EPA

- HQ

- OW

- 2008

- 0667

- 2972 Cari Boyce Duke Energy Business Services, LLC
EPA

- HQ

- OW

- 2008

- 0667

- 2973 David M. Fraley City Utilities of Springfield, Missouri (CU)
EPA

- HQ

- OW

- 2008

- 0667

- 2974 Robert Matty and Angela M. Grooms Utility Water Act Group (UWAG) (Hunton & Williams LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2975 Jerry Purvis East Kentucky Power Cooperative (EKPC)
EPA

- HQ

- OW

- 2008

- 0667

- 2976 Thomas R. Kuhn Edison Electric Institute (EEI)
EPA

- HQ

- OW

- 2008

- 0667

- 2977 Hanneke Counts Eastman Chemical Company
EPA

- HQ

- OW

- 2008

- 0667

- 2978 Robert A. Reich DuPont Safety, Health and Environment (SHE) & Sustainable Growth Center
EPA

- HQ

- OW

- 2008

- 0667

- 2979 Mark J. Sedlacek Los Angeles Department of Water and Power (LADWP)
EPA

- HQ

- OW

- 2008

- 0667

- 2980 Claire M. Olson Basin Electric Power Cooperative
EPA

- HQ

- OW

- 2008

- 0667

- 2981 Bill Matthews Cleco Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 2982 Gary A. Dawson Consumers Energy
EPA

- HQ

- OW

- 2008

- 0667

- 2983 Shawn Glacken Luminant
EPA

- HQ

- OW

- 2008

- 0667

- 2984 Melissa Lavinson Pacific Gas and Electric Company (PG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 2985 Michael G. Cashin Minnesota Power (ALLETE)
EPA

- HQ

- OW

- 2008

- 0667

- 2986 Nicholas M. Demik Northern Indiana Public Service Company (NIPSCO)
EPA

- HQ

- OW

- 2008

- 0667

- 2987 Verne Shortell NRG Energy, Inc.
EPA

- HQ

- OW

- 2008

- 0667

- 2988 Kay L. Nelson Northwest Indiana Forum
EPA

- HQ

- OW

- 2008

- 0667

- 2989 Chris M. Hobson Southern Company
EPA

- HQ

- OW

- 2008

- 0667

- 2990 Cheri A. Budzynski Ohio Utility Group (OUG) (Shumaker, Loop & Kendrick, LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 2991 Christina T. Wisdom Texas Chemical Council (TCC)
EPA

- HQ

- OW

- 2008

- 0667

- 2994 Mike Godfrey Alabama Power Company (APC)
EPA

- HQ

- OW

- 2008

- 0667

- 2995 Chris M. Hobson Southern Company
EPA

- HQ

- OW

- 2008

- 0667

- 2996 Henry Eby Lower Colorado River Authority (LCRA)
EPA

- HQ

- OW

- 2008

- 0667

- 2999 Jerry Bonanno and William Skaff Nuclear Energy Institute (NEI)Introduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 3000 Chris M. Hobson Southern Company
EPA

- HQ

- OW

- 2008

- 0667

- 3001 Patrick Blachard Calpine Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 3002 Michael Bradley Clean Energy Group
EPA

- HQ

- OW

- 2008

- 0667

- 3004 Jerry Bonanno and William Skaff Nuclear Energy Institute (NEI)
EPA

- HQ

- OW

- 2008

- 0667

- 3005 Christina T. Widsom Texas Chemical Council (TCC)
EPA

- HQ

- OW

- 2008

- 0667

- 3006 Elise N. Zoli Entergy Corporation (Goodwin Procter LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 3007 H. Morriss Barney, IV Texas Municipal Power Agency (TMPA)
EPA

- HQ

- OW

- 2008

- 0667

- 3008 Brendan Mascarenhas American Chemistry Council (ACC)
EPA

- HQ

- OW

- 2008

- 0667

- 3009 Joseph Dominguez Exelon Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 3010 Reed W. Super Riverkeeper, Inc. et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 3011 Russell Frye Cooling Water Intake Structure Coalition
EPA

- HQ

- OW

- 2008

- 0667

- 3012 Thomas R. Kuhn and Christopher M. Crane Edison Electric Institute (EEI) and Exelon Corporation
EPA

- HQ

- OW

- 2008

- 0667

- 3013 R. Matty, A. M. Grooms, and C. R. Bozek Utility Water Act Group (UWAG) and Edison Electric Institute (EEI) (Hunton and Williams LLP)
EPA

- HQ

- OW

- 2008

- 0667

- 3014 Robert H. Reider DTE Energy
EPA

- HQ

- OW

- 2008

- 0667

- 3015 Jeannine M. Hammer FirstEnergy Corp. (FE)
EPA

- HQ

- OW

- 2008

- 0667

- 3016 Nysa Hogue Indianapolis Power & Light Company (IPL)
EPA

- HQ

- OW

- 2008

- 0667

- 3017 Mark J. Sedlacek Los Angeles Department of Water and Power (LADWP)
EPA

- HQ

- OW

- 2008

- 0667

- 3018 Sam L. Phillips Louisiana Department of Environmental Quality (LDEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 3019 William Creal Michigan Department of Environmental Quality (MDEQ)
EPA

- HQ

- OW

- 2008

- 0667

- 3020 Reed W. Super Riverkeeper, Inc. et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 3021 Reed W. Super Riverkeeper, Inc. et al. (Super Law Group, LLC)
EPA

- HQ

- OW

- 2008

- 0667

- 3022 Brendan Mascarenhas American Chemistry Council (ACC)
EPA

- HQ

- OW

- 2008

- 0667

- 3023 Chris M. Hobson Southern Company
EPA

- HQ

- OW

- 2008

- 0667

- 3024 Shawn Glacken Luminant
EPA

- HQ

- OW

- 2008

- 0667

- 3025 G. Adams
EPA

- HQ

- OW

- 2008

- 0667

- 3026 J. Bagatta
EPA

- HQ

- OW

- 2008

- 0667

- 3027 J. Valentine
EPA

- HQ

- OW

- 2008

- 0667

- 3028 I. Rabois
EPA

- HQ

- OW

- 2008

- 0667

- 3029 P. Brocious
EPA

- HQ

- OW

- 2008

- 0667

- 3030 M. Owen
EPA

- HQ

- OW

- 2008

- 0667

- 3031 W. Fast
EPA

- HQ

- OW

- 2008

- 0667

- 3032 K. Hughes
EPA

- HQ

- OW

- 2008

- 0667

- 3033 J. W. Soffler
EPA

- HQ

- OW

- 2008

- 0667

- 3034 L. A. Gianella
EPA

- HQ

- OW

- 2008

- 0667

- 3035 T. and D. Merritts
EPA

- HQ

- OW

- 2008

- 0667

- 3036 L. Perret
EPA

- HQ

- OW

- 2008

- 0667

- 3037 E. H. Oblas
EPA

- HQ

- OW

- 2008

- 0667

- 3038 AnonymousIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 3039 Peggy Cullen
EPA

- HQ

- OW

- 2008

- 0667

- 3040 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3041 B. Vaughn
EPA

- HQ

- OW

- 2008

- 0667

- 3042 M. Williams
EPA

- HQ

- OW

- 2008

- 0667

- 3043 E. Butler
EPA

- HQ

- OW

- 2008

- 0667

- 3044 K. Garton
EPA

- HQ

- OW

- 2008

- 0667

- 3045 K. A. Barry
EPA

- HQ

- OW

- 2008

- 0667

- 3046 C. E. Arkema
EPA

- HQ

- OW

- 2008

- 0667

- 3047 J. Tavares
EPA

- HQ

- OW

- 2008

- 0667

- 3048 K. Spath
EPA

- HQ

- OW

- 2008

- 0667

- 3049 N. Gibbs
EPA

- HQ

- OW

- 2008

- 0667

- 3050 T. Linter
EPA

- HQ

- OW

- 2008

- 0667

- 3051 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3052 D. Caraballo
EPA

- HQ

- OW

- 2008

- 0667

- 3053 C. Skibell
EPA

- HQ

- OW

- 2008

- 0667

- 3054 J. McDermott
EPA

- HQ

- OW

- 2008

- 0667

- 3055 A. Oppenheim
EPA

- HQ

- OW

- 2008

- 0667

- 3056 V. Keramaty
EPA

- HQ

- OW

- 2008

- 0667

- 3057 J. Rigney
EPA

- HQ

- OW

- 2008

- 0667

- 3058 J. Ashton
EPA

- HQ

- OW

- 2008

- 0667

- 3059 D. Weinstein
EPA

- HQ

- OW

- 2008

- 0667

- 3060 L. Flanagan
EPA

- HQ

- OW

- 2008

- 0667

- 3061 A. Brana
EPA

- HQ

- OW

- 2008

- 0667

- 3062 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3063 M. Malina
EPA

- HQ

- OW

- 2008

- 0667

- 3064 Mass Comment Campaign Riverkeeper

EPA

- HQ

- OW

- 2008

- 0667

- 3065 J. E. Fletcher
EPA

- HQ

- OW

- 2008

- 0667

- 3066 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3067 W. D. Rizer
EPA

- HQ

- OW

- 2008

- 0667

- 3068 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3069 D. Dutelle
EPA

- HQ

- OW

- 2008

- 0667

- 3070 R. Capozzi
EPA

- HQ

- OW

- 2008

- 0667

- 3071 C. Curtin
EPA

- HQ

- OW

- 2008

- 0667

- 3072 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3073 S. Didrichsen
EPA

- HQ

- OW

- 2008

- 0667

- 3074 C. Schmidt
EPA

- HQ

- OW

- 2008

- 0667

- 3075 D. Tignanelli
EPA

- HQ

- OW

- 2008

- 0667

- 3076 A. ZitoIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 3077 M. Lynn
EPA

- HQ

- OW

- 2008

- 0667

- 3078 S. Eisenstark
EPA

- HQ

- OW

- 2008

- 0667

- 3079 D. Douglas
EPA

- HQ

- OW

- 2008

- 0667

- 3080 Patricia D. Horn and Kenneth E. Raymond Oklahoma Gas and Electric Company (OG&E)
EPA

- HQ

- OW

- 2008

- 0667

- 3081 P. Packer
EPA

- HQ

- OW

- 2008

- 0667

- 3082 B. Buttacavoli
EPA

- HQ

- OW

- 2008

- 0667

- 3083 M. and S. Patterson
EPA

- HQ

- OW

- 2008

- 0667

- 3084 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3085 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3086 M. N. Perskin
EPA

- HQ

- OW

- 2008

- 0667

- 3087 M. Sims
EPA

- HQ

- OW

- 2008

- 0667

- 3088 E. Pasquale
EPA

- HQ

- OW

- 2008

- 0667

- 3089 B. Kanninen
EPA

- HQ

- OW

- 2008

- 0667

- 3090 Mass Comment Campaign Sierra Club

EPA

- HQ

- OW

- 2008

- 0667

- 3091 A. Violi
EPA

- HQ

- OW

- 2008

- 0667

- 3092 K. Gluth
EPA

- HQ

- OW

- 2008

- 0667

- 3093 Daisy Hoyt
EPA

- HQ

- OW

- 2008

- 0667

- 3094 L. Neiman
EPA

- HQ

- OW

- 2008

- 0667

- 3095 V. Gilbert
EPA

- HQ

- OW

- 2008

- 0667

- 3096 F. Stearney
EPA

- HQ

- OW

- 2008

- 0667

- 3097 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3098 K. Sherwood
EPA

- HQ

- OW

- 2008

- 0667

- 3099 S. Rose
EPA

- HQ

- OW

- 2008

- 0667

- 3100 S. W. Sabath
EPA

- HQ

- OW

- 2008

- 0667

- 3101 G. Morotti
EPA

- HQ

- OW

- 2008

- 0667

- 3102 Mass Comment Campaign Unknown

EPA

- HQ

- OW

- 2008

- 0667

- 3103 R. L. Adzema
EPA

- HQ

- OW

- 2008

- 0667

- 3104 N. Mantas
EPA

- HQ

- OW

- 2008

- 0667

- 3105 A. Montapert
EPA

- HQ

- OW

- 2008

- 0667

- 3106 W. G. Murtha
EPA

- HQ

- OW

- 2008

- 0667

- 3107 A. Smock
EPA

- HQ

- OW

- 2008

- 0667

- 3108 J. M. Naples
EPA

- HQ

- OW

- 2008

- 0667

- 3109 L. B. Miller
EPA

- HQ

- OW

- 2008

- 0667

- 3110 M. Sonderskov
EPA

- HQ

- OW

- 2008

- 0667

- 3111 T. E. Webb
EPA

- HQ

- OW

- 2008

- 0667

- 3112 R. Feldman
EPA

- HQ

- OW

- 2008

- 0667

- 3113 M. HalfIntroduction

FDMS Document ID First Name Middle Name Last Name Organization

EPA

- HQ

- OW

- 2008

- 0667

- 3114 R. B. Hare
EPA

- HQ

- OW

- 2008

- 0667

- 3115 K. Maher
EPA

- HQ

- OW

- 2008

- 0667

- 3116 J. Rosenthal
EPA

- HQ

- OW

- 2008

- 0667

- 3117 F. and J. Fusco
EPA

- HQ

- OW

- 2008

- 0667

- 3118 J. Papandrea
EPA

- HQ

- OW

- 2008

- 0667

- 3119 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3120 S. Rose
EPA

- HQ

- OW

- 2008

- 0667

- 3121 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3122 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3123 L. D'Arco
EPA

- HQ

- OW

- 2008

- 0667

- 3124 N. Weber
EPA

- HQ

- OW

- 2008

- 0667

- 3125 C. Delfeld
EPA

- HQ

- OW

- 2008

- 0667

- 3126 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3127 J. R. Pitcher, Jr.
EPA

- HQ

- OW

- 2008

- 0667

- 3128 T. Brown
EPA

- HQ

- OW

- 2008

- 0667

- 3129 S. Sobanski
EPA

- HQ

- OW

- 2008

- 0667

- 3130 J. Ramos
EPA

- HQ

- OW

- 2008

- 0667

- 3131 P. Wolf
EPA

- HQ

- OW

- 2008

- 0667

- 3132 M. Ricapito
EPA

- HQ

- OW

- 2008

- 0667

- 3133 N. Castaldo
EPA

- HQ

- OW

- 2008

- 0667

- 3134 A. Havan
EPA

- HQ

- OW

- 2008

- 0667

- 3135 D. Moderacki
EPA

- HQ

- OW

- 2008

- 0667

- 3136 N. Neumann
EPA

- HQ

- OW

- 2008

- 0667

- 3137 Patrick R. Varekamp
EPA

- HQ

- OW

- 2008

- 0667

- 3138 B. L. Close
EPA

- HQ

- OW

- 2008

- 0667

- 3139 A. Vrankovic
EPA

- HQ

- OW

- 2008

- 0667

- 3140 Dr. J. Olejak
EPA

- HQ

- OW

- 2008

- 0667

- 3141 Anonymous
EPA

- HQ

- OW

- 2008

- 0667

- 3142 R. Lebensold
EPA

- HQ

- OW

- 2008

- 0667

- 3143 S. Etherton
EPA

- HQ

- OW

- 2008

- 0667

- 3144 C. Accorsi
EPA

- HQ

- OW

- 2008

- 0667

- 3145 N. Valenti
EPA

- HQ

- OW

- 2008

- 0667

- 3146 Tom J. Mulford Electric Power Research Institute (EPRI)
EPA

- HQ

- OW

- 2008

- 0667

- 3147 Anonymous Alcoa

- Warrick Operations
EPA

- HQ

- OW

- 2008

- 0667

- 3148 Richard Schneider Coalition to Protect Fisheries
EPA

- HQ

- OW

- 2008

- 0667

- 3149 Tom J. Mulford Electric Power Research Institute (EPRI)

## Response to Comment Essays

### Essay 1: General Support of the 316(b) Existing Facilities Rule

EPA acknowledges your support for promulgating a strong rule under section 316(b) of the Clean Water Act (CWA) that establishes nationa l requirements for existing power generating facilities and existing manufacturing and industrial facilities that w ithdraw water from waters of the U.S. for cooling purposes. These nationa l requirements apply to the location, design, construction, and capacity of coo ling water intake structures (CWI S) at regulated facilities by setting requirements that reflect the best t echnology available (BTA) for minimizing adverse environmental impact on aquatic organisms and ecosystems.

This essay addresses comments from the public expressing support for the proposed rule and possible revisions to the final ru le that were discussed in the NODAs. In the proposed rule and the notices of data availability (NODAs), EPA c onsidered a variety of options for establishing requirements for existing power generating and manufacturing and indus trial facilities that withdraw water from waters of the U.S. ex clusively for cooling purposes. In many cases, commenters advocated that EPA ta ke a strong stance for protecting the environment in strictly regulating facilities with drawing cooling water, with particul ar attention to regulating nuclear facilities (generally, these commenters were private citizens or envi ronmental groups). Many commenters expressed particular support of the possible rule revisions discussed in the NODAs, noting the flexibility and site-specific approaches provided in the possible revisions (generally, these commenters were representa tives of state and lo cal governments (i.e. municipally owned utilities) or industry groups). Some commenters expressed support for portions of the rule, but suggested specific modifications to other parts of the rule (these commenters were also representatives of util ities or industry groups). These comm enters proceeded to detail their specific modification suggestions in later comments that ar e addressed in other essays responding to comments.

With today’s rule, EPA is promulgating a rule that completes the Agency’s regulations under section 316(b) of the CWA. Please see the preamb le for the final rule for EPA’s rationale in developing the final rule requirements.

Essay 1 1

### Essay 2: General Opposition of the 316(b) Existing Facilities Rule

This essay addresses comments from the public expressing opposition to the proposed rule and possible revisions to the final ru le that were discussed in the NODAs. In the proposed rule and the notices of data availability (NODAs), EPA c onsidered a variety of options for establishing requirements under section 316(b) of the Clean Water Act (CWA) for existing power generating and manufacturing and industrial facilities that withdraw water from waters of the U.S. exclusively for cooling purposes. In general, commenters expresse d concern about the provisions of the proposed rule, with many commenters emphasizing the economic burden on affected facilities and poor cost-b enefit return in implementing the ru le as written (these commenters were mostly representatives of utilities, industry groups, and government agencies). A small number of commenters opposed the rule because they felt it is not sufficiently stringent and allows affected facilities to continue to cau se unacceptable adverse impacts on the environment (these comments were all from environmen tal groups). Several commenters opposed EPA regulation in general (t hese comments were all from private citizens). Some commenters suggested specific modifications to parts of the rule. These commenters proceeded to detail their specific modification suggestions in later comments that ar e addressed in other essays.

Today, EPA promulgates a final rule that completes the Agency’s re gulations under section 316(b) of the CWA. Please see the preamble for th e final rule for EPA’s rationale in developing the final rule requirements.

Essay 2 2

### Essay 4: Background Information about Commenter

EPA appreciates all comments on its rulemaking process. The Agency received comments from a diverse group of stakeholders, including c oncerned industry, environmental group, private citizen, and academic representatives, as well as comments from all levels of local, state, and federal government. Today’s final rulemaking will a pply to the majority of the existing U.S. power generation fleet as well as certain manufactu ring facilities. Based on its calculations, EPA has determined that the final rule will have relatively minor economic impacts on the regulated facilities, the entities that own them, and the ove rall electric power sector, which encompasses a large portion of the facilities th at may be subject to today’s ru le. See the preamble for the final rule and the EA for EPA’s analysis of costs a nd economic impacts (including electricity supply).

This essay addresses public comments providing background information about the commenters. Within the background information presented, some commenters expressed concerns about the proposed rule or the notices of da ta availability (NODAs). In general, these comments expressed that the rule should be (or concern that it is not) cost-effective, f easible, and/or use a site-specific approach to meet environmental objectives, or ma de broad suggestions a bout how the rule could be so. These types of comment were only subm itted by industry commenters. A few commenters expressed support for the rule or the need for a strong rule. These comments were submitted by environmental organizations and private citizens. The vast majo rity of the comments simply presented background information about th e commenter, expressed the commenter’s appreciation for the opportunity to comment, stated that the rule will affect commenter, and/or comprised in-text editorial or summary remarks that did not contain s ubstantive content. All types of commenters submitted these kinds of remarks.

In developing today’s final rule, EPA collected and analyzed a substantia l amount of information regarding cooling water intake structures, thei r biological impacts, av ailable technologies to reduce those impacts, the potenti al impacts and costs of utilizing those te chnologies, and other relevant subjects, including information subm itted by stakeholders, industry groups, technology vendors, and environmental organizations. The Agency has met with representatives from facilities and affected industries on topics including th e latest advancements in fish protection technologies, permitting experience, and the feasib ility and cost of installing technologies at various types of facilitie s. EPA conducted site visits at over 50 power plants and manufacturing sites to: gather information on the intake technologies and cooling water systems in place at a wide variety of existing facilities; gather pe rformance data for technologies and affected biological resources; and listen to perspectives from industry repr esentatives. EPA has continued to exchange information with various stakeholde rs in the development of today’s final rule.

The Agency has reviewed and analyzed data from a ll types of facilities and s ituations that will be affected by the rule and develope d compliance options that provide sufficient flexibility to the regulated community. EPA considered a variety of considerations (such as possible differences between generators and manufacturers, between manufacturing facilities in different sectors, among facilities in dive rse geographical locations, and betw een facilities that do or do not withdraw very large volumes of cooling water) bu t ultimately rejected most subcategories as inappropriate. See Essays 14, 19 and the Techni cal Development Document (TDD) for more

Essay 4 3information. EPA has also reviewed data and comment submitted in response to the proposed rule and NODAs and incorporated the informati on into the development of BTA requirements and compliance alternatives. Today’s final rule is both reasonable a nd scientifically sound. Today’s final rule reflects the best technology available for minimizing adverse environmental impacts associated with cooling water intake st ructures and allows the regulated universe the flexibility to meet critical environmental ob jectives through reasonabl e and cost effective compliance options. The flexibility and compliance schedule in the rule allows facilities to undertake necessary upgrades without affecting reli ability of energy delivery. Today’s final rule will improve the quality of our nation’s waters by minimizing adverse environmental impacts associated with cooling water intake structures by substantially reducing the mortality of aquatic organisms due to impingement and entrainment, provide a national framework for compliance, at an affordable cost to affect ed facilities and ratepayers.

Please refer to Essay 19 for a di scussion of regulatory options.

Essay 4 4

### Essay 5: Form Letters 1

‐ 14, Addressing Form Letters from the Alliance for the Great Lakes, Consumer Energy Alliance, Natural Resources Defense Council, Environmental Law and Policy Center, Sierra Club, National Wildlife Federation Action Fund, Food and Water Watch, Surfrider, Riverkeeper, and Other Unknown Organizations

This essay addresses private citi zens that participated in form letter campaigns for various organizations. The majority of these comments were from environmental organizations in support of a strong nationa l rule requiring closed -cycle recirculating sy stems (CCRS) as besttechnology available. Commenters indicated that cl osed-cycle cooling is readily available. EPA also received form letters from the Consumer Energy Alliance, which supported site-specific standards, cost-benefit analyses for determ ining appropriate impleme ntation measures, and maximizing implementation flexibility of the rule. Form letters submitted on behalf of the Consumer Energy Alliance stated that 316(b) regulations would cause “catastrophic” effects for consumers. Some commenters incl uded additional comments with their form letters. Many of these additional comments were background, nonsubsta ntive, specific to indi vidual facilities, or not relevant to the 316(b) regul ation and require no further re sponse from EPA than provided here. Some commenters were concerned about nuclear or fossil-fuel-powered generating facilities and/or thermal polluti on from generators’ discharges.

EPA agrees with the need for promulgating a stro ng rule under section 316( b) of the Clean Water Act (CWA) that establishes national requirement s for existing power generating facilities and existing manufacturing and industrial facilities that withdraw water from waters of the U.S. for cooling purposes.

EPA has promulgated final regulations that will provide consistency and aid in minimizing adverse environmental impacts associated with c ooling water intake stru ctures by substantially reducing the mortality of aquati c organisms due to impingement and entrainment. EPA estimates that the final rule will achieve significant mone tized benefits to soci ety through protection of commercially and recreationally harvested fish wh ile incurring relatively minor economic impact on regulated facilities, the entities that own th em, and the overall electric power sector and electricity consumers.

EPA agrees that flexibility is important, and EP A has promulgated a final rule that addresses commenter concerns about implementation flexibili ty and site-specific approaches, provides the desired flexibility for both the permittee and the Di rector to determine the most appropriate and cost-effective means for meeting the requirements of today’s rule while maintaining performance standards that will minimize adverse environmental impacts.

For the reasons explained in the preamble a nd Essay 15, EPA does not agree with commenters that stated that closed-cycle is readily available.

This rule, which implements section 316(b) of th e Clean Water Act, will provide effective and efficient progress towards restoring, maintain ing and protecting, the physical, chemical and

Essay 5 5biological integrity of our nation’s waters. It establishes national BTA standards for impingement mortality and entrainment: impingement mortality standards at all existing facilities that withdraw over 2 mgd DIF that include se ven compliance alternatives; an entrainment standard based on site-specific entrainment cont rols determined by the EPA or the State NPDES permitting authority for existing facilities (other than new units) that withdraw over 2 mgd DIF. See the preamble and Essay 19.

EPA does not agree with the comment that today’ s final rule would cause “catastrophic” effects for consumers. As stated in the preamble, a nd as explained in economic support documents in the record for the rule, the final regulation will re sult in only modest imp acts to consumers. For responses to the form letter from Consumer Energy Alliance, also see Essay 15.

Issues regarding the use of nuclear or fossil fu els in generating power and other concerns not relevant to the section 316(b) regulation are beyond the scop e of this rulemaking. Issues regarding concerns about thermal pollution from electricity generation f acilities are outside the scope of this rulemaking as they are addressed in regulations related to section 316(a) of the Clean Water Act.

Essay 5 6

### Essay 6: Comment Period, Schedule for Final Rule

This essay addresses public comments on the co mment period for the proposal and the schedule for the final rule related to th e notices of data av ailability (NODAs) for today’s final rule. EPA received requests from 9 commenters for EPA to ask the federal district court to extend the deadline for completing the rulemaking. These commenters expressed co ncern that the time allotted would be insufficient for EPA to adequately review and respond to the comments submitted on the NODAs. EPA received requests from two commenters for 60-day comment period extensions for the proposal comment pe riod. Additionally, two commenters thought the public had been denied the opportunity to comm ent on actual monetized benefits of proposed rule, because the analysis of benefits was not complete at proposal. Also, one commenter asked if there would be opportunity to comment on revise d IM standards prior to finalization of rule. Finally, one commenter expressed concern about the transparency of the rulemaking process, stating that EPA did not comply with the Offi ce of Management and Budget’s Executive Order 13563 for the NODAs.

EPA Provided an Adequate Opportunity to Comment EPA provided an adequate opportunity to co mment on the proposed rule. EPA provided an opportunity to comment on the proposal and as a result, decided to issue for public comment a notice of data availability seeking additional co mment on certain issues raised in the initial comment period, particularly with respect to im pingement mortality. In addition, this rulemaking has been ongoing for over ten years and the interested persons are well aware of the issues. EPA notes that at least 725 of th e 1833 documents (approximately 40 percent, and including both technical and economic documents), included in th e proposed rule record have appeared in the record of previous 316(b) rulemakings. In additi on, a significant percentage of record documents were publicly available prior to the publicati on of the proposed rule on April 20, 2011; up to 25 percent of the record was posted by March 2011, with almost 200 new documents having been made available as early as 2009 and over 300 ne w documents available by the end of 2010. The extensive nature of the comments also indica tes the adequacy of the comment period. On the proposed rule EPA provided a comment period from April 20, 2011 until August 18, 2011 (which included an extension of 30 days). EPA published the Notice of Data Availability Related to Impingement Mortality Control Requirements in the Federal Register (FR) on June 11, 2012, and the Notice of Data Availability Related to the EPA Stated Preference Survey on June 12, 2012. The comments periods for these NODAs closed on July 11 and July 12, 2012, respectively, allowing for a 30-day comment period for each publication.

Even in cases involving complex subjects, courts have routinely held that comment periods of 45 days and less are reasonable. See, e.g., C onnecticut Light & Power Co. v. NRC, 673 F.2d 5252, 534 (D.C. Cir. 1982)(30-day comment period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996)(7-day comment period); Florid a Power & Light Co. v. United States, 846 F.2d 765, 772 (D.C. Cir. 1988)(15-day comment period ); North Am. Van Lines v. ICC, 666 F.2d 1087, 1092 (7th Cir. 1981)(45-day comment peri od); Phillips Petroleu m Co. v. EPA, 803 F.2d 545, 558-59 (10th Cir. 1986)(45-day comment peri od). Comment periods are deemed reasonable

Essay 6 7where, as here, the public comments were numer ous and extensive, and the comments had an effect on the final agency action.

In response to particular comments about the ab ility to comment on benefits of the rule, EPA disagrees that the public had been denied the opportunity to comment on actual monetized benefits of proposed rule. As explained in the preamble to the final rule, EPA did not use the results of the stated preference survey in th e final rule; EPA has not accounted for values estimated from the survey in the quantitative comparison of costs and benefits. EPA notes that the stated preference survey instrument was al so provided for public comment under a separate Federal Register notice and Information Collect ion Request (ICR). Please refer to Essay 77 and the preamble for the final rule for further discu ssion of EPA’s inclusion of the stated preference survey results in the benefits analysis in the final rule.

With respect to the final 12-m onth percent survival IM perfor mance standard, EPA provided the analytical approach that it used in calculating it as well as all of the studies that EPA considered in developing the standard in the public docke t for the proposed rule (including the NODA). See Essay 16A. As such, EPA has provided all of the n ecessary materials for the public to review the calculation of the 12-month percen t survival IM performance sta ndard in the final rule, and additional opportunities for co mment are not appropriate.

In response to comments concerning the sche dule for taking final ac tion, the schedule is governed by a settlement agreement that resolv ed two separate mandato ry suits against the Agency. It is in the public interest for EPA to agree to a deadline for final action in order to resolve the disputes at issue in the two suits given that EPA ha d originally agreed to a courtordered deadline through a consent decree to co nduct rulemaking in three Phases in the late 1990s. EPA has amended the settlement agreemen t several times in order to accommodate additional time needed for the final rule.

EPA Complied with EO 13563 EPA disagrees with one commenter that the Agency has not adequately complied with the Office of Management and Budget’s Executive Orde r 13563 implementation guidance regarding public participation. EPA conducted the rulemaking pr ocess in accordance with the standard of “transparency” prescribed by Executive Order 13 563. As such, EPA has established an official public docket for this action under Docket ID EPA-HQ-OW-2008-0667. The official public docket consists of the documents specifically refe renced in today’s rulemaking action, any public comments received, and other information rela ted to this action. Confidential business information and other information, the disclosure of which is restricted by statute, are a part of the official record for the rule, though this info rmation is not available in the public docket. The Agency made every effort possible to accommoda te requests for confidential and copyrighted information used in this rulemaking consistent with law. Given the longstanding discussions of issued related to 316(b) over many years, su fficient time was provided for the regulated community to review and comment on these ma terials and their potential effects on EPA’s selection of regulatory options. EPA has made substantial effort s to help explain the complex issues involved with 316(b), a nd conducted a great deal of public outreach, including responding to comments, creating a publicly available record, and hosting meetings and conference calls with stakeholders. This outreach is detailed in section III.A (76 FR 22184) of the preamble for

Essay 6 8the proposed rule, in the Essay 58, and in the preamble and record for the final rule. EPA responded to information requests and has made ever y effort possible to pr ovide assistance to the public to access and understand data used, to th e extent allowed by the confidential business information requirements at 40 CFR Pa rt 2, to support today’s final rule.

Essay 6 9

### Essay 7: Seafood Processing, Offshore Oil and Gas, and LNG Terminals

In the proposed rule, NODAs, as well as the TDD for the proposed and final existing facilities rule, EPA provides descriptions of the power generation industry and sectors of the manufacturing industry and how compliance requireme nts, technologies, and costs apply to each. This essay addresses public comments regarding the entities regulated by today’s rule that are not addressed in other essays.

One commenter noted that some smaller electric utilities more closely resemble manufacturing companies in terms of cooling water characteri stics than larger electric utilities. EPA has determined there are not significant differences between generators and manufacturers with respect to the design and functionality of cooling water intakes. See Essay 14 for a more detailed discussion on this topic.

Another commenter was concerned that the proposed rule did not adequately state that only offshore seafood processing facilities, not onshore facilities, are exempt from the rule. The EPA’s final action regarding existin g offshore oil and gas facilities, seafood processing facilities and LNG import terminals is the same as EP A proposed (76 FR 22195). Such facilities are subject to 316(b) on a best professional judgment basis. The EPA already addressed new offshore oil and gas facilities, seafood processi ng facilities and LNG import terminals in the Phase III rule. EPA did not propose any changes fo r such new facilities, nor did EPA reopen the Phase III rule for new offshore facilities. Some commenters mistakenly assumed the proposed rule (and therefore the final rule) does not apply to existing onshore locations of these types of facilities, or commented that onshore facilitie s should be exempt from any requirements. EPA disagrees, noting that such facili ties are in scope if they meet the proposed applicability criteria in § 125.91. The final rule does not change this position from proposal. For onshore facilities lower than the threshold established in today’s ru le, such facilities will be subject to 316(b) requirements on a case-by-case, best professional judgment basis. The final regulatory language at § 125.91(d) reflects this intent. The preamble to today’s final rule explains that EPA is not including existing offshore oil and gas facilities, offshore s eafood processing facilities, and offshore liquefied natural gas import terminal s; a summary of EPA’ s rationale follows.

In the Phase III rule, EPA studied offshore oil an d gas facilities and offshore seafood processing facilities and could not identify any technologies (beyond the protec tive screens already in use) that are technically feasible fo r reducing impingement or entrainm ent in such existing facilities. As discussed in the Phase III rule preamble, known technologies that could further reduce impingement or entrainment would result in una cceptable changes in the envelope of existing platforms, drilling rigs, mobile offshore drilling units, offshore seafood processing facilities, and similar facilities as the technologi es would project out from the hull, potentially decrease the seaworthiness, and potentially interfere with struct ural components of the hull. It is also EPA’s view that for many of these faci lities, the cooling water withdraw als are most substantial when the facilities are operating far out at sea and, therefore, not withdrawing from a water of the United States. EPA is aware that LNG facilitie s may withdraw hundreds of million gallons per day of seawater for warming (re-gasification). However, some existing LNG facilities might still withdraw water where 25 percent or more of the water is used for cooling purposes on an actual

Essay 7 10intake flow basis. EPA has not identified a uniformly applicable and available technology for minimizing impingement mortality and entrainmen t at these facilities, nor did commenters provide any new data or inform ation upon which the EPA could establish uniform requirements for all such facilities. Any existing facility w ith a NPDES permit and th at withdraws any volume of water for cooling purposes, but that is not subject to the na tional BTA standards under today’s final rule, is subject to site-s pecific, BPJ BTA determinations.

For additional discussion on th is topic, also see Essay 14.

Essay 7 11

### Essay 8: Purpose of the NODAs, Introduction

This essay addresses the public comments receive d regarding the purpose of the two notices of data availability (NODAs) that further clarified EPA’s approach to today’s final existing facilities section 316(b) rule. Most of these comments respond ed to the Notice of Data Availability Related to Impingement Mortal ity Control Requirements published on June 11, 2012. A few comments addressed in this essay re ferenced the Notice of Data Availability Related to the EPA Stated Preference Su rvey published on June 12, 2012, but none made substantive comments on this NODA. Essay 77 responds to substantive comments received related to the Stated Preference Survey. All of the comments addresse d in this essay were submitted by industry stakeholders except for on e comment from an environmental organization. Nine of the commenters (all i ndustry commenters) expressed appr oval with EPA for considering additional information/soliciting comment on these topics to increase compliance flexibility for impingement mortality control. One commenter (Riverkeeper) was against any revisions that would decrease stringency from the compliance options outlined in the proposed rule. Also, many of these comments provided introductory mate rial (in-text editorial or summary remarks that did not contain substantive content) to substantive commen ts or summarized the purpose of the NODA. These commenters proceeded to detail thei r specific issues in later comments that are addressed in other essays responding to comments.

Notice of Data Availability Related to Impingement Mortality Control Requirements This NODA described flexibilities EPA consid ered for the impingement mortality control requirements post-proposal. EPA notes that the fina l rule includes flexibility to comply with the national BTA standard for impingement mortality by including seven alternatives which EPA has determined will meet or exceed the perf ormance of the BTA technology. See the preamble for additional discussion. Please refer to Essay 16A and the preamble for the final rule for discussion of EPA’s consideration of additional data in its calculation of the final 12-month percent survival IM performance standard. Essa y 16 and the preamble for the final rule also address Riverkeeper’s concern that the final rule would be less stringent than the proposed rule.

Essay 8 12

### Essay 10: Legal Authority, Purpose, and Background

The final rule implements section 316(b) of the CWA for existing faci lities. Section 316(b) provides that any standard estab lished pursuant to section 301 or 306 of the CWA and applicable to a point source must require that the location, design, construc tion and capacity of cooling water intake structures (CWISs) reflect the best technology available (BTA) for minimizing adverse environmental impact. The final rule al so makes limited amendments related to the Phase I CWA section 316(b) rule for new facilitie s (consisting of two t echnical corrections and removal of restoration provisions; see preambl e for details). The final rule establishes requirements that represent BTA for minimizi ng adverse environmental impacts that EPA has identified as associated with CWISs, includi ng impingement mortality and entrainment. EPA has previously implemented section 316(b) on a site-specific basis for ex isting facilities and issued a new facility rule in 2001. The preamble to the fi nal rule provides a detailed discussion of the legal authority, purpose, and background of the final 316(b) ex isting facility rule.

Some commenters asserted that EPA’ s application of the rule to existing facilities lacks a basis in the CWA, and that section 316(b) only authoriz es a one-time, preconstr uction review of CWIS location, design, construction, and capacity.

EPA disagrees with both points. There is no suppor t in the language of section 316(b) indicating that it applies only to new facilit ies. The statutory language refers to point sources, and cross references the technology standards applicable to existing sources (section 301) and new point sources (section 306). Thus it is reasonable for EPA to interpret section 316( b) as applicable to existing facilities. Since th e CWA provision was adopted in 1972, EPA has been applying section 316(b) to existing as well as new facilities or new sources. 1 Section 316(b) requirements apply in part to standards established under CWA section 301, and section 301 requires establishment of effluent limitati ons guidelines for existing faciliti es. Thus, EPA has authority to apply 316(b) requirements to existing facilities. EPA has fully explained its interpretation of its authority previously (see 69 FR 41629), and the Second Circuit has upheld EPA’s interpretation of the CWA. Riverkeeper, Inc. v. USEPA , 475 F. 3d 83, 121-122 (2nd Cir. 2007). The Supreme Court did not grant cert on this i ssue. The basis for the final rule is fully discussed in the legal authority and basis sections of the preamble to the final rule.

Some commenters asserted that EP A is only allowed to regulate th e four statutory elements of CWISs specified in section 316(b) and that, wi th regard to any standard for impingement mortality, the CWA doesn’t permit the imposition of a performance standard. Other commenters argued that EPA lacks the authority to require existing facilities to retrofit to closed-cycle cooling or to dictate when or how a facility ca n operate. They observed that the installation of cooling towers can require extensive redesign an d reconstruction of an existing facility, which the statute does not authorize EPA to require. They also asserted that clos ed-cycle cooling is not a CWIS technology and cannot be required under 316(b).

1 A new source is a source for which a 306 new source perfor mance standard is applicable. New facilities are a set of facilities as defined in EPA’s Phase I new facility rule. The terms are not synonyms.

Essay 10 13EPA does not agree that the langu age of section 316(b), including th e four elements associated with CWISs described in the statute (i.e., CW IS l ocation, design, construction and capacity), limit the approaches EPA can take to regulation of cooling water intakes or limits the standards to the four aspects of CWISs identified in th e statute as long as a requirement minimizes impingement and or entrainment of the cooling water intake. In Entergy , the Supreme Court stated that “As we have described, § 1326(b) instructs the EPA to set standards for cooling water intake structures that refl ect “the best technology avai lable for minimizing adverse environmental impact.” In Riverkeeper I, the Se cond Circuit held that “t he statute allows the EPA to regulate the operation of cooling water intake structure, as the word ‘design’ can reasonably be read to embrace the methods used in running a structure as well as its physical layout and technical specif ications.” 358 F.3d 174, 198 (2 nd Cir. 2004). EPA often uses performance standards to provide maximum flexib ility to the regulated community with regard to how they choose to meet ap plicable requirements. Here, EP A’s BTA impingement mortality standard represents permissibl e regulation of CWIS design an d capacity. EPA would note that this rule does not require all existing facilities to retrofit to closed-cycle cooling or dictate what technologies a facility must adopt to meet th e IM standard or when or how a facility may operate. Rather, for impingement mortality, the BTA standard requires compliance with one of seven alternatives, one of which includes use of a closed-cycle reci rculating system. For entrainment, the rule adopts a site-specific approach except for new units. New units are subject to requirements based on closed-cycle cooli ng, but such new units typically do not involve retrofitting. With regard to the rule’s inclusion of closed-cycle cooling (or the reduction in entrainment comparable to closed-cycle cooling) as the basis for new unit requirements, EPA has established and continues to maintain that flow volume is one aspect of the “design” and “capacity” of a CWIS and, as such, it may be a ddressed under 316(b). (See the discussions of EPA authority at 66 FR 65313-65314 (Phase I); and 69 FR 41629-41630 (Phase II).) The Phase I rule requirements are based in significant part on reductions in flow volume and that rule (except for restoration) was upheld by the Second Circuit in Riverkeeper v. EPA , 358 F.3d 174 (2 nd Cir. 2004).

Environmental commenters including Riverkeep er, Inc., Natural Resources Defense Council, Sierra Club, Waterkeeper Alliance, Earthjustice, Environmental Law a nd Policy Center, Clean Air Task Force, Network for New Energy C hoices, California Coastkeeper, Alliance, Soundkeeper, Inc., Delaware Riverkeeper Networ k, Save the Bay – Rhode Island, Friends of Casco Bay, NY/NJ Baykeeper, Hackensack Rive rkeeper, Santa Monica Baykeeper, San Diego Baykeeper, Scenic Hudson, American Littora l Society, and Conservation Law Foundation (hereafter referred to as Riverk eeper) took a contrary view to th e comments against the use of closed-cycle cooling presented above and main tained that in amending the CWA Congress was aware of the damage caused by once-through cool ing, that EPA must establish BTA standards based on closed-cycle cooling , and the am ended CWA establishes a technology-forcing framework that requires per Congress’s spec ific intent uniform standards based on the performance of optimally operating plants (citing Kennecott v. EPA , 780 F. 445, 448 (4 th Cir. 1985)). Riverkeeper further commented and cited cas es in support of the assertion that it is permissible for BTA to have economic impacts a nd that standards are economically achievable even if they result in a high rate of closur e. Other commenters asserted that EPA’s 316(b) requires BTA, which consists of closed-cycle sy stems, and as such most power plants are in violation of the CWA.

Essay 10 14EPA agrees that, in establishing section 316(b) requirements, EPA should take account of Congress’ technology-forcing objectives. See Entergy, 556 U.S. 208, 235 (2009), J. Breyer concurring. 2 EPA also agrees that BTA regulations may impose some economic costs on a facility but does not ag ree that section 316(b) mandates closed-cycle systems for all existing facilities. As discusse d in the preamble, the language of section 316(b) is silent regarding specifically how stringently cooli ng water intake structures must be controlled, only that their adverse environmental impacts be “minimized” and the Supreme Court has held that this gives EPA discretion to consider many factors. See Entergy, 556 U.S. at 222 3 in establishing 316(b) standards. And a standard that requires the establishment of BTA entrainment requirements in a site-specific proceeding fulfills EPA’s mandatory duty to implement section 316(b) as held by the court that entered the original consent decr ee in the original mandatory duty case. Cronin v. Browner, 898 F.Supp. 1052, 1062 (In rejecting Inteve rnors’ opposition to entry of the decree on the grounds that it would force EPA to propose ge nerally applicable rules, thereby precluding EPA from determining that controls should be determined on a case-by-case basis, the Court disagreed saying “under the decree EPA could, if otherwise appropria te, propose and issue regulations that do not embody a generally applicable rule.”) Based on the ambiguous language of 316(b) and its limited legislative history, EP A does not agree that Congress has expressed a clear and specific intent that 316(b) requirement s must be expressed only as uniform national categorical technology-based standards. In Entergy , the Supreme Court held that the silence in section 316(b) conferred discretion on the Agency, not a prohibition to consider any particular factor.

Nothing in the CWA requires EPA to abandon a site-specific approach to 316(b) standardsetting. As the Second Circuit has made clear in the new facility Phase I rule, the agency was upheld on a case-by-case approach to standards for those facilitie s below the rule’s 2 mgd DIF applicability. The court stated th at 316(b) “...does not compel th e EPA to regulate either by one overarching regulation, or based on categories of sources ... or on a case-by-case basis...” Riverkeeper, Inc. v. USEPA , 358 F. 3d 174, 203 (2 nd Cir. 2004). The court went on to observe that “[t]he Clean Water Act does not forbid the EPA from addressing certain environmental problems on a case-by-case basis where categorical regulation is not technol ogically feasible, or when it does not violate the stat ute’s language and is otherwis e consistent with Congress’s overriding goal of improving the quality of the nation’s waters” (internal citation omitted here). Riverkeeper, Inc. v. USEPA , 358 F. 3d at 203. This rule determines BTA for existing facilities and new units at existing facilities. Such BTA is based on the most effective technologies available to the extent that EPA was able based on the record to identif y such technologies. As explained generally in the basis s ection of the preamble to this fi nal rule, closed-cycle cooling is

2 “The EPA’s reading of the statute would seem to permit it to describe environmental benefits in non-monetized terms and to evaluate both costs and be nefits in accordance with its expert judgment and scientific knowledge. The Agency can thereby avoid lengthy formal cost-benef it proceedings and futile attempts at comprehensive monetization, see 69 Fed. Reg. 41661 -41662 (2004); take account of Congress’ technology-forcing objectives; and still prevent results that are absurd or unreasonable in li ght of extreme disparities between costs and benefits. This approach, in my view, rests up on a “reasonable interpretation” of the statute--legislative history included. Hence it is lawful.”
3 “The inference that respondents and the dissent would dr aw from the silence is, in any event, implausible, as § 1326(b) is silent not only with respect to cost-benefit analysis but with respect to all potentially relevant factors. If silence here implies prohibition, then the EPA could not consider any factors in implementing § 1326(b) --an obvious logical impossibility. It is eminently reasonable to conclude that § 1326(b) ’s silence is meant to convey nothing more than a refusal to tie the agency’s hands . . .”

Essay 10 15not the best technology available for existing facilities on a nationa l basis based on consideration of all relevant factors. As described in the option selection discussion in the preamble, while EPA did consider costs, costs were not a dispositive factor in the decision to reject closed-cycle cooling as the basis for a uniform national BT A standard. EPA did not reject closed-cyclecooling here either because it was not economically achievable or because the costs of closedcycle would exceed its benefits. Instead, EPA re jected closed-cycle cooling as the technology basis for a uniform national BTA entrainment sta ndard based on a combination of three factors: land availability, air emissions, a nd remaining useful plant life. Further, once EPA has found that a “one-size-fits-all” approach is not feasible, it is appropriate to assess the required controls on a site-specific basis, including a cons ideration of costs and benefits. See Entergy 556 U.S. at 225- 226, “But whether it is “reasonable” to bear a particular cost may well depend on the resulting benefits; if the only releva nt factor was the feasibility of the costs, their reasonableness would be irrelevant.”

Based on the performance capabilities of closed-c ycle cooling, this rule does include closedcycle cooling as a compliance alternative and the rule requires new unit performance to be consistent with closed-cycle cooling system s for the reasons explained in the preamble.

Riverkeeper in comments further argued that EPA’s interpretation of “available” is unlawful because it is not permissible for EPA to reject any technology because it is not available to all facilities (citing 76 FR 22,203), as well as that EPA impermissibly rejected closed-cycle cooling as BTA and 0.5 ft/sec as a national impingement mortality standard because these were not available at all facilities.

EPA does not agree with these comments. As discussed in the proposed (76 FR 22196-22212) and final rule (see the legal authority and ba sis sections) preambles, EPA considered many factors in determining the BTA standards, in cluding availability, feasibility, efficacy, costs (including economic impacts), and the location, age, size, and type of facility, as well as nonwater quality effects of various technologies on energy production and availability, electricity reliability, and potential adverse environmental effects. EPA’s consideration of these factors reflect the Agency’s authority under section 316(b) a nd, as discussed in the proposed and final rule preambles, EPA has considerab le discretion in balancing these factors. EPA has explained in the basis section of the preamble to the final ru le that closed-cycle co oling is not the best technology available on a national basis because of land availability, increased air emissions and remaining useful life. Low velocity is also not the best technology available for reducing impingement mortality because it is not widely available. As noted, however, closed-cycle cooling is one of several technol ogies included to meet the impingement mortality standards of the rule, as is low velocity.

Riverkeeper comments maintained that regula tion on a case-by-case basis has resulted in industry using its resources to overwhelm regulator s, and assert that the case-by-case approach has generally prevented, delayed and weakened regulation, and ultimately perpetuated a status quo that is contrary to the goa ls of the CWA and requirements of 316(b). Riverkeeper comments suggested the case-by-case approach is arbitrary because it perpetuates an ineffective approach and that EPA’s approach is not consistent with Congress’s shift in focus in the CWA (and earlier water protection laws) from water quality to technology-based standard setting.

Essay 10 16The final rule establishes BTA standards for impingement mortality and entrainment on a national basis. After careful analysis, EPA did not identify one technology or a combination of technologies that could or should uniformly be established as the technology basis for all facilities to minimize entrainment at existing f acilities (see TDD Chapter 5). Consequently, EPA did not base the BTA standard for entrainment on a specific technology or technologies. See the preamble to the final rule.

As explained in EPA’s option selection discussion in the preamble, for entrainment, there are a number of factors that make no one technology appropriate for all cooling water intakes. In many instances, technologies are simply not widely av ailable. And since implementation of the Phase II rule that was remanded by the Second Circuit, EPA has learned that many of technology basis for that rule’s entrainment requirements are not as effective as once thought for minimizing entrainment (see 76 FR 22185 discussing entrainmen t exclusion versus entrainment survival). Also see Section VI.E in today’ s preamble. The Phase II rule in large part was based on EPA’s conclusion that there were, in addition to closed -cycle cooling, a number of other technologies that would achieve reductions in entrainment thatwere comparable to that achieved by closedcycle cooling. Consequently, EPA required complia nce with closed-cycle or achievement of a performance equivalent to that technology. As explained in the fi nal preamble, since the Phase II rule, EPA has learned that the gap between the performance of the most effective entrainment reduction technologies (closed-cycle) and other less expensive technologies has widened significantly. Also see Essay 18. In the Phase II rule, EPA identified a suite of intermediate performing technologies that could be used to reduce entrainment. This suite of technologies included a wide variety of fine mesh exclusion technologies such as traveling screens, wedgewire screens and other passive screens, and filter barriers. While available performance data for entrainment reduction at that time were not as comprehensive as impingement data, EPA found that fine mesh wedgewire screens and fine mesh traveling screens have been shown to reduce entrainment compared to once-through cooling systems by 60 to 90 percent. EPA acknowledged that screening to prevent entrainment may cause impingement of those organisms instead. 69 FR 41599.

Since the final Phase II rule (2004) EPA has obtained additional perf ormance data including studies documenting the survival of entrainable organisms that were impinged, or “converts.” First, EPA found an average of 87 percent exclus ion of eggs could be achieved by fine mesh screens of 0.5 mm slot size. The available da ta shows mesh sizes of 2.0 mm or greater were found to have no effect on exclusion of eggs. In response to comments, industry provided data showing limited select species of fish may have eggs near the 2.0 mm size. While EPA appreciates the data, the record still shows the overwhelming majority of eggs are collected by 0.5 mm mesh, and a negligible quantity of eggs are collected on a 2.0 mm mesh (see Essay 16 for more details). As discussed in the TDD Ch apter 6, fine mesh is not feasible for many facilities, as replacement of coarse mesh by 0.5 mm fine mesh would require an increase in screen area of 5.2 to 10.3 times depending on intake velocity. Second, EPA found the performance of fine mesh screens to be genera lly poor for larvae, ranging from 15 to 23 percent exclusion, and with an average survival rate of roughly 10 pe rcent. See TDD Chapter 6.2 for more information. EPA further found that intake velocity alone had low impact on survival of eggs and larvae because such early life stages ha ve no avoidance response, little or no skeletal structure, and lack capability for mobility. In other words, eggs can’t swim. Some commenters have hypothesized that low intake velocity could set up flow grad ients where eggs are diverted

Essay 10 17around the CWIS. EPA disagrees, first noting that the density of eggs is so close to that of water that differential flow patterns are improbable. Second, based on technical survey data, the average intake velocity and inta ke volume are both sufficiently large that any diversion through differential flow would be irrele vant. However, to date EPA is not aware of any real data supporting the theory, and the commenter’s theory is therefore rejected. In summary, EPA found that there are no high-performi ng or intermediate-performing technologies on which to base national entrainment requirements, and no entrai nment control technologies that are widely available and feasible.

There is a second additional cons ideration that further required EPA to focus renewed attention on how widely available closed-cyc le cooling in fact was. The Second Circuit decision in the Phase II rule removed restoration as a complian ce option that EPA could consider. The decision underscored that restoration measures – one co mpliance option included in the Phase II rule – were not an available tool for complying with an y 316(b) standard. However, at the time of the Phase II promulgation, EPA expected some facilitie s would use restoration in lieu of closedcycle cooling, thus making closed-c ycle or reductions commensurate with closed-cycle feasible (76 FR 41609). With the court decisions that restoration was not an available tool for compliance, compliance with a standard based on cl osed-cycle cooling alone is thus less feasible than EPA had expected at the tim e of the Phase II promulgation.

The changed landscape has narrowe d markedly EPA’s range of op tions with respect to the technology basis for today’s BTA standards. Th e gap between the performance of the most effective entrainment reduction technologies (closed-cycle) and other less expensive technologies has widened signi ficantly. EPA’s narrowed rang e of compliance technology choices required EPA to look even more closely at the feasibility of closed-cycle cooling and reduced flow. As the Second Circuit has noted, EP A is clearly entitled to make its choice among alternative BTA technologies based on more factor s other than just a te chnology’s effectiveness in reducing impingement and entrainment. id . at 196. As noted, EPA has identified a combination of three factors as significant in its decision to reject closed-cycle cooling as the sole technology basis for a national BTA entr ainment standard. Given that EPA has not identified a technology or combinations of tec hnologies that EPA concluded is “best technology available” for minimizing entrainment at existing units, EPA has determined that a site-specific approach to regulating these faci lities considering all relevant factors is the best solution for implementing section 316(b). Thus, to the ex tent possible based on the record, EPA has established national requirements that implement section 316(b).

EPA acknowledges that implementing aspects of the 316(b) regulations on site-specific basis presents certain challenges but doe s not agree that such an approach is ineffective. EPA adopted its BTA entrainment standard because it conclude d that the appropriate way to determine that BTA entrainment requirements for a particular facil ity is after a structured, site-specific analysis of a number of factors, includi ng, but not limited to, technical fe asibility, costs, benefits, and non-water quality environmental impacts. Conseq uently, the final rule at 40 CFR 125.98(f)(2) requires the Director to consider, among other factors, the number a nd type of entrained organisms, technical feasibility, impact of ch anges in particulate em issions, land availability, remaining useful plant life and quantified social benefits and co sts in determining appropriate BTA entrainment requirements. In addition, under 40 CFR 125.98(f)(3), the Director may consider other factors in establishing BTA entr ainment requirements such as thermal discharge

Essay 10 18impacts, impacts on reliability of energy deliveries in the immediate area and others to the extent the permit applicant submitted information on these. The final rule establishes a structure for decision-making, information requirements, decisi on criteria, schedule and an overall process for assessing entrainment that will serve to guide permittees and permitting authorities in implementing the rule requirements and as a resu lt EPA expects that the BTA standard’s sitespecific requirements can be implemented eff ectively. Additionally, EPA can develop additional guidance if necessary as rule implementation goes forward.

EPA is not responding here to each of the 46 “incorrect” arguments the comment indicates industry puts forth as part of 316(b) permitting because these arguments do not address specific aspects of the final rule but appear to address 316(b) permitting prior to this rule, but notes that this rule, provides a structured, transparent and fair way for all of the arguments presented by the commenters to be assessed by the permitting aut hority and will require the permitting authority to explain the factors that led to the permitting decision. EPA notes that some of these arguments pertain to section 316(a), which is not addressed in this rule. Al so, EPA has tried, to the extent possible under a case-by-case approach, to shift the workload from the permitting authority. For example, for existing facilities that withdraw gr eater than 125 mgd AIF, the rule requires peer review of the technical feasibili ty and cost study, the benefits valuation study, and the non-water quality environmental and other impacts study to ensure their accuracy. Finally, EPA does not agree that this rule is so similar to the water qua lity approach used prior to the current CWA as to be ineffective. This rule sp ecifies technology-based performanc e where reasonable and for sitespecific determinations includes detailed information and performa nce requirements, as well as a decision-making process, evalua tion criteria, and documentation requirements all of which is subject to NPDES public participation and admi nistrative provisions. In addition, given the unique focus and objective of section 316(b) th e rule’s requirements will make clear to the permitting authority the environmental impacts pose d by the particular CWIS at issue along with the costs of technologies and othe r relevant factors at the site.

Some commenters stated that, as proposed, impi ngement mortality requirements apply even if a facility has or proposes closed -cycle cooling. The commenters asserted that this appears unnecessary and redundant, since a closed-cyc le cooling system will reduce impingement mortality and should constitute BTA. These concer ns are addressed in the final rule. The final rule provides that a properly operated closed-cycle recirculati ng system meets the impingement mortality requirements.

Commenters also expressed some concerns regarding the definitions of certain terms. Some asserted that EPA’s expansion of the definition of cooling water intake structure (CWIS), by saying that the CWIS extends up to and including “but not limite d to” the intake pumps, results in a definition that is unlimited (i.e., could include the entire facility), is not explained (it is characterized as the same as the Phase I definition). Additionally, some commenters observed that the proposed definition of cl osed-cycle recirculating system ( CCRS) is different than and far more restrictive than the definition used in the Ph ase I rule and thus us inconsistent with that definition and confusing. Commente rs noted that the definition of CCRS includes only systems that withdraw makeup flow intermittently, are designed to operate above minimum cycles of concentration, reduce flow by a specified percenta ge (depending on whether salt of fresh water), and do not include cooling ponds that are waters of the U.S. These concerns are addressed in the

Essay 10 19final rule. The final definition of CWIS mirrors th e Phase I rule and does not include the “but not limited to” language.

With regard to the definition of CCRS, the defi nition of CCRS in this final rule has changed somewhat from proposal. Under 40 CFR 125.92(c)(1), CCRS includes a facility with wet, dry, or hybrid cooling towers, a system of impoundments that are not waters of the United States, or any combination thereof. A properly operated and ma intained closed-cycle recirculating system withdraws new source water (makeup water) only to replenish losses that have occurred due to blowdown, drift, and evaporation. If waters of the United States are withdrawn for purposes of replenishing losses to a closed -cycle recirculating system ot her than those due to blowdown, drift, and evaporation from the cooling system, th e definition makes it clear that the Director may still determine a cooling system is a closed -cycle recirculating system if the facility demonstrates to the satisfaction of the Direct or that makeup water withdrawals attributed specifically to the cooling portion of the cool ing system have been minimized. Under 40 CFR 125.92(c)(2),the definition clarifies that CCRS can include im poundments are not waters of the U.S. provided such impoundments were constructed prior to the effective date of the rule and must have been constructed for the purpose of a cooling system. The definition specifies appropriate documentation of the impoundment’s purpose must be demonstrated to the satisfaction of the Director.

Based on public comments received by EPA, the final rule definition of CCRS does not prohibit continuous intake flows of water, as was proposed. EPA’s intent is to make sure that closedcycle systems not just built but then operated as a once through system (with the exception of impoundments which must have th e project purpose documented as described above). The final rule definition does not include the proposed examples of flow reduction percentages (compared to a once-through system) and cycles of concentr ation (for cooling towe rs) that constitute minimized makeup and blowdown for salt and fre shwater, respectively. While these examples should help permitting authorities assess a variety of cooling systems, and are therefore included in the preamble, the key evaluation is that a properly operated and maintained closed-cycle recirculating system withdraws new source water (makeup water) only to replenish losses that have occurred due to blowdown, drift, and evaporat ion. The final rule definition states this. The final rule definition of closed-cycle cooling also provides the permitting authority with some flexibility to determine that a cooling system th at needs replenishment for losses other than those due to blowdown, drift, and evaporation from the cooling system, still comprises a closed-cycle recirculating system provided the facility demonstrates to the satisfaction of the Director that makeup water withdrawals attribut ed specifically to the cooling portion of the cooling system have been minimized. EPA concluded that these cl arifications help define when cooling systems constitute a CCRS.

EPA received comments from Riverkeeper asse rting that the Agency has a duty, under the Endangered Species Act (ESA) to consult with the Departments of Interior and Commerce to ensure that the 316(b) rule “is not likely to jeopardize the conti nued existence of any threatened and endangered (T&E) species or result in the de struction or adverse m odification of critical habitat of such species.” This essa y responds to Riverkeeper’s comments.

Under section 7 of the Endangered Species Act, each Federal Agency must insure that any action authorized, funded, or carried ou t by the agency “is not likely to jeopardize the continued

Essay 10 20existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secr etary, after consultation as appropriate with affected States, to be critical . . . .” In the case of a ny agency action that is likely to jeopardize an endangered species or resu lt in destruction of critical habitats, the agency must consult with the concerned offices with re sponsibilities under the ESA, in particular, the National Marine Fisheries Servic es (NMFS) and the U.S. Fish and Wildlife Services (FWS) (collectively referred to as the Services).

In compliance with its obligations under th e ESA, in July 2012, EPA began informal consultation with the NMFS about its proposed section 316(b) regulat ions. In October 2012, EPA began informal consultation with the FWS. As part of the info rmal consultation, EPA prepared a draft biological evaluation of the e ffects of this rule on T& E species. EPA concluded in the draft biological evaluation th at the rule was not likely to a dversely affect listed species or designated critical habitat due to the many beneficial effects on species, and concluded that the rule was not likely to adversely a ffect listed species or designated critical habitat. EPA, however, did not receive the Services’ concurrence with th e Agency’s “not likely to adversely affect” finding. Consequently, on June 18, 2013, EPA request ed formal consultation with the Services and submitted a final biological evaluation.

The Services’ final biological opinion found that the rule will not je opardize the continued existence of threatened or endangered species or destroy or adversely modify a critical habitat. The final biological opinion is availabl e in the record for today’s rule.

For additional information about the elements of the rule that protect listed species, please see the “Memorandum to the Record of EPA’s Fina l Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities” (DCN 12–4543).

Finally, some commenters suggested that it is inappropriate to automatically give endangered and threatened species elevated status and consid eration under the rule and that benefits to any threatened and endangered species should not be considered. These commenters argued that EPA has no basis for incorporating ESA requirements into the rule and regul ating ESA species under the NPDES program (they maintained th at the ESA operates independently).

EPA disagrees with these commenters. As thre atened and endangered species and designated critical habitat (e.g., prey base) are among the sp ecies that can be impi nged and entrained, EPA considers threatened and endangered species and desi gnated critical habitat as relevant factors in case-by-case decision-making under section 316(b). EPA is not requ iring state NPDES Directors to undergo ESA consultation for permit issuance; however, a fair consideration of costs and benefits by permitting authorities should include a consideration of the effects of impingement and entrainment on listed species and designated critical habitat (e.g., prey base). Protecting those species is a relevant bene fit of controls. The rule does not give these species elevated status, but requires the permitting authority to consider those effects, along with other environmental effects as a relevant factor along with other relevant factors. In a ddition, the rule does not regulate ESA species under the NPDES pr ogram; instead, the rule addresses threatened and endangered species to the exte nt necessary to ensure this action is consistent with both the ESA, CWA section 316(b) and Admi nistrative Procedure Act require ments. The ESA states that

Essay 10 21Federal agencies shall, in consultation with th e Service(s), insure that any action the agency authorizes, funds, or carries out is not likely to jeopardize any threatened or endangered species or result in the destruction or adverse modification of critical ha bitat. EPA consulted with the Services on this Federal action a nd as the Services concluded in their joint Biological Opinion, today’s rule is not likely to je opardize the continued existence of listed species or result in the destruction or adverse modificatio n of designated critical habitat. As explained earlier, section 316(b) provides that any standa rd established pursuant to sect ion 301 or 306 of the CWA and applicable to a point source must require that the location, desi gn, construction and capacity of CWISs reflect the BTA for minimizing advers e environmental impact. Impingement and entrainment mortality have the pot ential to harm and ki ll threatened or endangered species and such impacts are clearly adverse environmental impact s, particularly given the protected status of these species. EPA’s rule will be subject to the Administrative Procedure Act’s standard of review - whether the rule is ar bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore the provisions of th e rule related to specie s exist to set forth a framework for decision-making that includes listed species and designated critical habitat as a relevant factor in case-by-case decision-making.

Essay 10 22

### Essay 11: Proposed Amendments Related to the Phase I Rule

Introduction Today’s existing facility 316(b) final rule rem oves the restoration-base d compliance alternative and the associated monitoring and demonstration requirements from the Phase I, new facility rule, and does not include restor ation as a compliance alternative for existing facilities subject to regulation under section 316(b). Th ese actions are based on the Sec ond Circuit Court of Appeal’s decisions in Riverkeeper, Inc. v EPA , 358 F.3d 174 (2 nd Cir., 2004) and Riverkeeper, Inc. v EPA

, 475 F.3d 83 (2 nd Cir., 2007), both of which held in releva nt part that EPA exceeded its authority by allowing Phase I (new facilities) and Phase II (large power producers) facilities to comply with section 316(b) throu gh restoration measures.

Under compliance Track II in the Phase I (new facility) rule, a facili ty has the option of demonstrating to the Director that the control measures it em ploys will reduce the level of adverse environmental impact (AEI) caused by its c ooling water intake structures (CWISs) to a comparable level to what would be achieved by m eeting the Track I requirements. As part of this demonstration, Track II previously allowed a fa cility to make use of restoration measures. Today’s rule removes that portion of 40 CFR 125 .84(d)(1) and 125.89(b)(1)(ii) that allow for the consideration of restoration m easures in demonstrating that impacts under Track II will be comparable to Track I. This change to the Phas e I rule is based on the Second Circuit Court of Appeal’s decision in Riverkeeper, Inc. v EPA , 358 F.3d 174, 191 (2 nd Cir., 2004), which found that restoration corrects, but does not minimize AEI in the firs t place, and that it is not sufficiently related to the locati on, design, construction or capacity of CWISs to constitute best technology available (BTA). As a result, the Sec ond Circuit held, in rele vant part, that EPA exceeded its authority by allo wing new facilities to comply with section 316(b) through restoration measures. The Supreme Court did not address the issue of restoration in Entergy v EPA , 556 U.S. 208, 129 S. Ct. 1498 (2009), thus, EP A is bound by the Second Circuit’s decision on this issue. Today’s rule also removes 40 CFR 125.86(c)(2)(iv)(C) [e valuation of proposed restoration measures], and 125.86(c)(2)(iv)(D)(2) [verification monito ring] since these are unnecessary given the rem oval of the restoration provision fro m the Phase I rule. Today’s final existing facility rule does not include restorat ion as a compliance alternative for meeting BTA for the same reasons that it is being removed from the Phase I rule—EPA lacks authority to allow existing facilities to comply with se ction 316(b) through restoration measures.

Phase I Commenters addressed certain aspects of the Phase I rule. Some commenters supported the change to the Phase I rule and stated the law is clear and restoration ha s not worked. Riverkeeper commented that it is not appropria te to use 90 percent of the level of performance achieved by a closed-cycle recirculating coo ling water system as the benchmark for BTA and then allow an additional margin of error in measuring complian ce with that benchmark. They asserted that a facility must aim for 100 percent of the performance level goal a nd that it would be acceptable if they only achieve between 90 and 100 percent of that goal. Other commenters suggested that EPA adopt the impingement mortality intake veloci ty standard and entrainment mortality closedcycle cooling standard as BTA in the Phase I ru le. Still other commenters asserted that, although

Essay 11 23EPA indicated that under the proposal the provi sions in th e Phase I rule associated with restoration were removed, § 125.86(c )(2)(ii) has not been removed.

EPA is removing the restoration provision from the Phase I rule pursuant to the Second Circuit decisions discussed above. Comments that it is not appropriate to use 90 percent of the level of performance of achieved by a closed-cycle recirc ulating cooling water system as the benchmark for BTA, and that EPA should adopt the impingeme nt mortality intake velocity standard and entrainment mortality closed-cycle cooling stan dard as BTA in the Phase I rule, are beyond the scope of today’s final rule. The only aspects of the Phase I rule addressed by today’s final rule are those provisions that address the use of restoration as BTA ( under Track II). This rule does not reopen or alter the BTA standa rd established in the Phase I ru le (EPA notes that the existing Phase I rule under Track I includes an intake fl ow and an intake velo city requirement). EPA notes that all other aspects of the Phase I rule were upheld in Riverkeeper, Inc. v EPA , 358 F.3d 174 (2 nd Cir., 2004). With regard to § 125.86(c)(2)(ii) , this sub-section ha s not been removed from the Phase I rule since it is not ex clusively associated with restoration.

Restoration for Phase II and Existing Facilities Some commenters suggested that restoration be allowed in a ra nge of situations, including where a nuisance species is a problem that will get worse with th e use of CWIS technology, where impacted species are not species of concern in man-made lakes, and to reduce the cost of meeting 316(b) requirements (i.e., offset losses).

Given the adverse court decisions in Riverkeeper I and II, EPA is not including restoration as a technology for meeting section 316(b) requirements. As discussed in the le gal authority and basis sections of the preamble to th e final rule, the Second Circuit twice found that EPA exceeded its authority by allowing facilities subject to 316(b) to comply with section 316(b) through restoration measures and, thus, regardless of thes e situations, EPA lacks authority to identify restoration as a compliance altern ative for meeting 316(b) requiremen ts. EPA notes that this rule does not focus on species of concern and that th e impingement and entrainment requirements in this rule offer sufficient flexibility to address i ssues such as nuisance species (for example see § 125.92(b)) in the most effective manner possible.

Other commenters suggested that fo r existing facilities, the use of restoration should be allowed in conjunction with CWIS technology as a me thod for meeting the impingement mortality and entrainment mortality standards. Suggestions include d that EPA allow a state to set or adjust sitespecific impingement mortality standards that consider restoration projects. Commenters indicated that such an approach would avoid identifying restor ation as CWIS technology (i.e., BTA) and would supplement technologies designed to minimize AEI. They maintained that restoration could be used to de termine the extent of minimizati on required. In situations where impingement levels are low, the rule also could require a fee to fund habi tat enhancement or the creation of hatcheries. Some commenters observed that a Cali fornia Supreme Court decision ( Voices of the Wetlands v. Stat e Water Resources Board, et al ., 257 P.3d 81 (August 15, 2011) [attached to original comments]) upholds the use of re storation not as BTA but to supplement technology and minimize AEI.

EPA does not agree that it can set standards base d on restoration. EPA disagrees with comments that the combined use of technology and restor ation is consistent with the Second Circuit

Essay 11 24decision. EPA acknowledges states may implement such measures in their programs (such as NJ) to supplement the final secti on 316(b) rules; such programs are beyond the scope of this rulemaking. EPA has set national impingement mo rtality requirements based on technologies that are well-demonstrated, available, and f easible based on information and data in the rulemaking record. As articulated by the Second Ci rcuit, restoration is not a CWIS technology, it does not minimize AEI in the first instance, and it is not sufficiently related to the location, design, construction or capacity of CWISs to c onstitute BTA. Even where impingement levels are low 4 , the Second Circuit has made it clear that re storation cannot constitute BTA regardless of the rate of impingement. Thus, restoration is not an appropriate basis for complying with either the impingement mortality or the entrainment standards.

Some commenters suggested that, for existing facilities, EPA s hould allow for restoration as part of a cost-benefit site-specific variance or a BT A variance procedure for impingement controls. These commenters encouraged EPA to allow for the use of restoration when the costs of meeting 316(b) requirements are wholly disproportionate to the benefits of doing so. Such commenters suggested that EPA provide a va riance to those facilities una ble to meet the impingement mortality requirements without incu rring costs that are wholly dispr oportionate to th e benefits of meeting the impingement mortality requirement s and that such a variance allow for the consideration of restoration. They also suggest that EPA include in the rule a variance for facilities that have im plemented restoration.

EPA does not agree that it has authority to allo w restoration measures. Therefore any standard that includes restoration, such as the commenter’s suggested appro ach in conjunction with a costbenefit variance for impingement controls, is not authorized. EPA does not agree additional variances are warranted or necessary. For IM, EPA does not agree that additional variances are necessary because there are technologies that are demonstrat ed, available, and feasible. For entrainment at existing facilities, the Director must establish site-specific requirements at § 125.98(f) after reviewing the information submitted under § 122.21(r) and § 125.95. The Director must, under § 125.98(f)(2), consider quantified and qualitative social benefits and costs of available entrainment technologies when such information on both costs and benefits is of sufficient rigor to make a decision. To the exte nt the commenter is further suggesting costbenefit be considered as a vari ance, see Essay 15. For new units and existing fac ilities, today’s final rule at § 125.98(b)(7) allows the Director to establish alte rnative requirements the same way in which Phase I facilities may request al ternative requirements. EPA concludes that any additional rule-specific vari ance would be superfluous.

Commenters also asserted that because under Entergy costs and benefits can be considered in determining the requirements that constitute BTA, the 316(b) standards may not actually result in application of the very best technology available and, thus, su ch commenters suggested that mitigation should be allowed to fill the gap. Othe r commenters argued that the Second Circuit’s

4 EPA notes that the impingement mortality performance standard in the final rule can apply to both low and highflow in-scope facilities, and that the rule includes provisions that provide for no additional controls in situations where the Director finds that based on a review of site-specific data that there is a de minimis rate of impingement. EPA expects the provision will be rarely used. In contrast to Phase II where restoration was assumed to be a key component of the BTA standards, in today’s final rule cost analysis EPA has not assumed any facilities would comply with the BTA standards through the de minimis provision.

Essay 11 25analysis of restoration is in correct, and the Supreme Court’s Entergy decision provides EPA with some discretion to consider re storation as part of BTA.

EPA disagrees with both points. Today’s rule establishes BTA for existing facilities based on EPA’s consideration of all permissible factors, including cost and benefits. A facility subject to today’s rule must meet these requirements to the extent applicable and, if it does so, it will fulfill the requirements of section 316(b) . Whether a state chooses to re quire restoration measures in addition to the requirements of today’s rule is beyond the scope of this rulemaking. The Agency does not agree that the Supreme Court’s Entergy decision provides EPA with authority to consider restoration as BTA. The only issue reviewed and decided by the Supreme Court in Entergy was whether EPA could consider cost and be nefits in determining applicable standards under 316(b). The issue of restoration was not ac cepted for review nor decided by the Supreme Court and, as a result, EPA is bound by the Second Ci rcuit’s decision with re gard to restoration.

Commenters also asserted that fo r existing facilities, restoration s hould be a factor considered in the development of case-by-case entrainment sta ndards. Commenters noted that the proposed entrainment standard identifies a minimum of nine factors that must be considered, including the impact of entrainment on the waterbody, and s uggested that EPA should allow restoration to address entrainment impacts. Commenters stated th at the proposed rule appears to allow for the consideration of restoration in the Benefits Valuation Study (§ 122.21(r)(11), see sub-section (iii)). They suggested that EPA should state that restoration sh ould be considered in a costbenefit analysis for entrainment reduction, and that the effects of restorat ion could be a factor considered in determining th e technologies needed to address entrainment impacts.

Based on the Second Circuit Cour t of Appeal’s decisions in Riverkeeper, Inc. v EPA , 358 F.3d 174 (2 nd Cir., 2004) and Riverkeeper, Inc. v EPA , 475 F.3d 83 (2 nd Cir., 2007), restoration cannot be used as a technology or requirement that is implemented under a NPDES permit to meet the BTA standards in section 316(b). This is separa te and distinct from requirements to assess waterbody conditions and gather data to prope rly inform decisions regarding case-by-case entrainment requirements. Today’s final rule prov ides for a case-by-case determination of BTA for minimizing entrainment. Such a case-by-case determination must reflect “...the Director’s determination of the maximum reduction in entr ainment warranted after consideration of the relevant factors as specified in § 125.98.” One of the factors that may be considered under § 125.98 is “[e]ntrainment impacts on the waterbody.” This is a reference to the entrainment associated with the CWISs at the relevant faci lity, and the impact such entrainment has on the aquatic health of the associ ated waterbody. Waterbody conditions may further be impacted by other uses of the source waterbody. The informa tion requirements included in the rule require a description of the condition of the waterbody and, as an appropria te part of that description, would identify information regarding past mitigati on efforts. Any such restoration or mitigation efforts cannot constitute, substitute for, or be a condition of BT A. EPA notes that § 122.21(r)(11)(iii) [Benefits Valu ation Study] requires consider ation of mitigation effort completed prior to the effective da te of the final rule. This is because the focus of this assessment and the entrainment-related adverse impact is on the baseline waterbody condition, and therefore necessarily includes past mitigation efforts.

Some commenters requested that EPA clarify that mitigation is permissible outside of the BTA determination.

Essay 11 26This comment is beyond the scope of this rule . EPA reiterates that th is rule establishes requirements for meeting BTA requirement s of CWA section 316(b). NPDES permit requirements beyond BTA are determined by other aspects of the NPDES program. Requirements or provisions beyond those imposed under the NPDES program are not the focus of this rule.

One commenter suggested that th at excluding cooling water that is reused from section 316(b) requirements under § 125.91(c) and § 125.92 creates a loophole in the rule that is contrary to the objectives of section 316(b). This commenter raised this in the context of a desalinization plant co-located with a power plant in Carlsbad CA. The commenter asse rts that routing water from a desalinization plant to a power pl ant indirectly allows after-the-f act restoration and it should be prohibited since restoration is not allowed under 316(b) and the biological impacts of intakes do not differ based on whether the inta ke is associated with a power plant or manufacturing facility. The commenter refers to information in its comme nt letter that indicates that the desalinization plant is permitted to withdraw more seawater (304 mgd) than the AIF of the power plant.

The language of the comment seems to indicat e that in one example (Carlsbad CA) the desalinization plant withdraws water and provides water to a power plant, although this is somewhat unclear. A second example (Huntington Beach CA) follows EPA’s general understanding that typically water that is reused goes from a power plant to a desalinization plant to allow the desalinization process to benefit from the heated wate r. A basic flow diagram of the Carlsbad facilities indicates flow (100 mgd) from the power plant to the desalinization plant ( http://carlsbaddesal.com/desalination-plant ). This also indicates a flow of 600 mgd into the power plant. Also see, http://www.waterboards.ca.gov/sandiego/boa rd_decisions/adopted_orders/2006/R9-2006

­ 0065_May_2010.pdf

Today’s final rule promotes several forms of water reuse for the reasons discussed in the preamble. EPA does not agree th at the provisions in § 125.91(c) and § 125.92 create a loophole that defeat the objectives of the rule since overa ll the amount of water reuse is limited relative to the amount of cooling water flow. Such reuse avoids new water withdrawals and therefore reduces the associated AEI. EPA disagrees this is restoration, as the water withdrawn for cooling purposes results in an actual reduction in AEI, and does not represent a mitigation effort. Based on the flow diagram referenced above, the Carlsb ad power plant has 500 mgd of flow that is not reused by the desalinization plant an d, thus is likely to remain subjec t to this rule. It is important to recognize that a desalinization plant that w ithdraws water is not subj ect to section 316(b), which focuses on cooling water intake structures. Thus, in the ca se of a stand-alone desalinization plant that facility would not be subject to water intake controls under this rule despite any AEI it may pose. Unde r today’s rule the power plant could reuse the water from a desalinization plant, and in doing such would not be causing additional AEI.

Essay 11 27

### Essay 12: New Data Used In Developing the Rule

EPA received numerous comments and data on specific aspects of EPA’s analyses. These comments are addressed in other essays. This es say addresses comments r eceived that provided highly specific corrections to data or documents provided in EPA’s record, such as corrections to EPA’s interpretation of state 316( b) policies and revised inform ation on information collected during EPA’s site visits or by th e industry questionnaire, that ar e not addressed elsewhere. EPA also notes that it received data submitted by various stakeholders throughout the rulemaking process; refer to the docket for the final rule.

EPA appreciates the commenters’ submittals and ha s either incorporated the revisions into the final rule or has considered the materials in its analyses for the final rule. More specific responses to some comments are provided below.

EPA appreciates the supplemental information provided regarding NJDEP’s permitting program and NYSDEC’s BTA policy. This info rmation was not included in the preamble to the final rule, but has been corrected (as n eeded) in the support documents.

EPA also appreciates the information provided regarding specific facilities. Each of the comments has been addressed, as described below.

 Westchester RESCO’s wedgewire screens: As the commenter noted, the TDD states the incorrect mesh size, but EPA’s site visit re port (DCN 10-6517) is correct. The error has been corrected in the final TDD. EPA has generally considered any mesh size 2.0 mm or smaller to be considered fine mesh, so th e correction does not appreciably change EPA’s characterization of this facility.

 LADWP’s revisions to the site visit reports: EPA appreciates the commenter’s additional revisions to the reports. Revise d versions of these reports will be posted to the docket for the final rule.

 Technical information for the AES faciliti es: EPA notes that, in developing the engineering costs and determining a complian ce response for model facilities, the data used were derived directly from the industr y questionnaires, using information provided by the facility and reflective of operations at that time. However, two of the facilities mentioned by the commenter (Harding Street and Eagle Valley) completed a short technical questionnaire and any corrections to the facility da ta would not affect the costs for the final rule, as that data was not used in estimating compliance costs. (Please see the TDD for more information on how EPA used data from the detailed technical questionnaires to develop costs for model facilities.) For the third facility (Petersburg), EPA reviewed the industry que stionnaire and confirmed that the survey marked the cooling system as “once-through only,” a lthough it appears that a checkbox for “oncethrough with non-recirculating towers” was whit ed out. A review of the facility’s flow diagram confirms that Units 3 and 4 appear to use cooling towers, but also indicates that the makeup water withdrawals for those units comes from the discharge canal for the once-through units; as a result, EPA has updated its characterizat ion of the facility from a

Essay 12 28once-through cooling system to a combina tion cooling system. However, there is no resulting change in the estimation of complian ce costs for this facility, as the number of intakes (one) and the volume of water wit hdrawn from the surface water is unaffected. Lastly, the actual intake flow (AIF) used for Petersburg was also taken from the questionnaire. This data was for the years 1998-2000 and varies by only 23.5 million gallons per day (approximately 7 percent of the AIF), which is not a sufficient difference to appreciably affect EPA’s estimates of the compliance costs.

Essay 12 29

### Essay 13: Possible Differences between Generators and Manufacturers

Many manufacturing stakeholder commenters expressed concern th at EPA failed to take into consideration many of the differences between power generators and manufacturers during the development of the proposed rule.

Introduction In the proposed rule and NODAs, as well as the TDD for the proposed rule, EPA provided descriptions of the power gene ration industry and sectors of th e manufacturing industry and how the compliance requirements, technologies, and co sts apply to each. This essay addresses public comments regarding the descripti on of the industry, the differen ces between power generators and manufacturers, and the application of compliance requirements, technologies and compliance cost assumptions. In particular, many manufacturing indus try commenters were concerned that EPA relied upon data from the power industry and simply transferred many of the compliance and costs assumptions originally ap plied to generating facilities in the nowwithdrawn Phase II rule to manuf acturing facilities w ithout consideration of the differences between these industries. The main thrust of the arguments is that EPA must allow for sufficient flexibility in application of the final existing facility rule to account for differences in operation and water use between power industry and manu facturers and between different manufacturing sectors. Commenters maintain that simply sta ting a water intake is a water intake is not sufficient.

EPA has considered the differences between ge nerators and manufactur ers and has addressed these differences by (1) using a model facility ap proach in developing the compliance costs, and; (2) by allowing facilities the choice of complyi ng with the impingement mortality BTA standard at the facility level or by individual intake s, and; (3) by providing compliance flexibility by identifying several alternatives that have each been demonstrated to achieve or exceed the impingement mortality BTA standard. Further, for entrainment, the final rule establishes a BTA standard for entrainment that requires the de termination of required entrainment reduction measures in a structured site-specific perm itting proceeding. EPA disagrees that there are numerous significant differences between power plants and manufacturing facilities; see TDD for a profile of cooling systems, types of inta ke structures, and technologies in place. EPA has determined there are not significant differences between generators and manufacturers with respect to the design and functionality of cooli ng water intakes. When manufacturers withdraw cooling water for the purposes of power genera tion, there are no significa nt differences. Where cooling water is withdrawn by ma nufacturers for process cooling, some minor differences may be observed and are generally rela ted to factors such as the in take water volume, changes in volume requirements over time, and subsequent (i.e ., “downstream” of the intake structure) uses and are not related to factors that affect the abil ity to comply with the final rule requirements. EPA considered and evaluated subcategorizat ion based on industry type and found that manufacturers use essentially the same intake t echnologies and cooling syst em types as electric generators and concluded that there are no data suggesting that manufacturers should be addressed separately on the basis of intake or cooling system technol ogies or availability. In site visits and through data collec tion, EPA found manufacturers more often withdraw water for nonEssay 13 30contact cooling water purposes (e.g., contact cooling water or process water) from the same intake structure. Since contact cooling and process water use may not be amenable to flow reduction through a technology such as closed-cycle cooling, entr ainment requirements for flow reduction can only apply to non-cont act cooling water; the final ru le does not apply to contact cooling or process water withdrawals. See TDD Chapters 4 and 5 for additional discussion of differences and similarities betw een generators and manufacturers.

EPA has provided sufficient flexibility and site-s pecific considerations within the compliance options available in the final ru le to accommodate any minor diffe rences between generators and manufacturers and between manu facturing facilities in differe nt sectors. In fact, many manufacturers may have more compliance strategi es available to them than power generators because they have the ability to reduce cooli ng water withdrawals by reusing cooling water as process water; generators typically have smalle r process water requiremen ts and would therefore not be able to achieve a signifi cant reduction in withdrawals through water reuse. With respect to entrainment, the entrainment requirements will be established on a site-specific basis, allowing the Director to take into consideration the sort of facility and site-s pecific circumstances and differences cited by the comments.

Background/History Under the 316(b) Phase I New Facilities Rule, bo th new electric generating facilities and new manufacturing facilities with a design intake flow greater than 2 mgd and cooling water comprising greater than 25 percent are required to comply with the rule requirements and are regulated in a similar manner. In response to the remand of the Phase II and Phase III Rules, EPA revisited the regulations for existing facilities and decided to regulate both large flow and small flow electric generating facilities and all manufacturing facilities under this single Existing Facility Rule. See Section II of the final pream ble for a more detailed discussion. Throughout the regulatory effort the primary difference between electric generating and manufacturing facilities with regard to cooling water intakes and im pingement mortality and entrainment mortality observed by EPA is the different distribution of intakes by size.

Analysis of Information for the Existing Facilities Rule Some commenters expresse d concern that EPA had visited ma ny power generating facilities but not many manufacturing facilities and that it was unclear how many manufacturing facilities EPA had visited. EPA disagrees that it did not visit many manu facturing facilities. During 2009 and 2010, EPA visited eight manufacturing facilities in order to better understand the cooling water intake structure (CWIS) t echnologies in use at manufacturi ng facilities, including the sitespecific characteristics of each facility and how these may affect the selection and performance of CWIS technologies. EPA also visited these fa cilities to better understa nd cooling water use and specific issues or technologi es that can affect 316(b) comp liance. The different types of industrial facilities visited included petrol eum refining, steel manufacturing, chemical manufacturing, and food processing. EPA also co llected additional data for pulp and paper manufacturing and aircraft engine manufacturing during meetings with facility representatives at EPA Headquarters. These site visits and mee tings provided EPA with additional knowledge of any potential differences between power generati ng and manufacturing facilities, the differences between different types of manu facturing facilities, the unique circumstances relevant to each type of manufacturing facility, and how each factor could play a role in determining BTA. As a

Essay 13 31result of this effort, EPA gained a thorough unde rstanding of the differences between how water is used at power generating a nd different types of manufacturi ng facilities and also confirmed that the intakes themselves a nd the technologies used did not differ significantly in design, operation, or function. EPA considered this inform ation during the development of the final rule. For more information regarding the site visi ts conducted and information obtained see TDD Chapter 2.

EPA’s data shows that many ma nufacturers use cooling water ex clusively for power generation, and in such cases generators and manufacturers are virtually identical. In other cases, power generating and manufacturing faci lities may use water differently (e.g., manufacturing facilities tend to use more process water and contact cooling water) and may have different operational considerations. However, all co oling water intakes se rve a similar function and EPA found that the intake designs and technologies used at electr ic generating facilities we re also found to be used at manufacturing facilities and vice versa. Fo r example, three fourths of both generators and manufacturers use a single cooling water syst em (TDD 4-13). EPA further found that relative intake flows for generators and manufacturers are similar (59 percent and 54 percent of DIF withdrawn, respectively) (TDD 4-4). See TDD Ch apter 4.0 for further examples and detailed analysis. The differences in water use do not impact the availability of cer tain types of controls that serve as the basis for the impingement mo rtality controls, mortality reduction technologies or their efficacy. For example, screening tec hnologies are used by ove r 1000 generators and manufacturers alike, see TDD 4-19. The small differences in water use may impact the availability of certain flow reduction operational measures and technologies, such as closedcycle cooling 5 . According to EPA’s survey, the mo st pronounced difference EPA observed between power generating and manufacturing facili ties is that manufacturing plants were less likely to have any technologies to reduce impi ngement and entrainment. The second observation EPA made regarding intake characteristics wa s that a larger propor tion of manufacturing facilities had smaller design intake flow volumes and were more likely to have a lower intake velocity (TDD 4-17, see below for more discussi on). However, not all manufacturing facility intakes have lower flows, as EPA has estimated that the average manufacturing facility design intake flow is still more than 94 mgd (see TDD E xhibit 4-5). Just like po wer plants, there is a wide range of intake flows obs erved at manufacturing facilities. Manufacturing facility intakes also tended to have lower through-screen velo cities, fewer systems with fish returns and employed more passive screen t echnologies (see TDD Exhibits 4-17 and 4-19). EPA notes that controls on smaller intakes will tend to cost less and may give the facility greater opportunities to use alternative compliance technologies 6 . Intakes with lower screen velocities may be more capable of meeting the low velocity IM complian ce alternative. Passive screens however, may be more costly to upgrade to traveling screens sin ce there may be significant engineering necessary to convert from passive screens to traveling screens. EPA included these considerations in the development of the compliance costs estimates (see TDD Chapter 8).

5 For example, process and contact cooling water generally are not amenable to flow reduction through closed-cycle cooling. However, higher proportions of process and contact cooling water at manufacturing facilities do provide greater opportunity for employment of water re-use flow reduction strategies. See also additional discussion in the TDD, for example at 5.3.2 and 8.3.1.
6 For example, the availability of low velocity intake tech nology such as T- screens, expanded intakes, additional offshore intakes, and wedgewire screens may be greater sin ce the footprint and water depth requirements of smaller intakes would allow placement near or adjacent to shore wh ere additional screens or in takes would be easier to install and less likely to interfere with navigation.

Essay 13 32Several commenters pointed out that EPA ha s ignored the differences between the power industry and manufacturing industrie s that justified EPA’s differe nt compliance approaches in Phases II and Phase III. They st ated that EPA has provided no ne w justification for altering the previous approach and request th at manufacturers should continue to be regulated on a sitespecific basis as in Phase III suggesting that EP A should drop manufacturing facilities from the scope of the rule. They also not e that total industria l water use on a percentage basis is small enough not to have an overall adverse environmental impact in the U.S. They also note that the costs of the impingement mortality controls and entrainment requirements are wholly disproportionate to the benefits. EPA disagrees with commenter assertions that applying the existing facility rule BTA requirements to both ma nufacturing and generating facilities is not justified. EPA did, in fact, consider a compliance option at proposal (Option 4) that was modeled on such an approach that would have established site-specific BT A requirements for the majority of manufacturing facilities which have a design intake flow (DIF ) of less than 50 mgd. The two main differences between Option 4 and today’s fi nal regulatory option for existing facilities are that today’s’ rule requires facili ties subject to this rule to me et IM performance standards and that the site-specific entrainment determina tion be performed in a structured way with consideration of appropriate information and specific factors. With respect to the requirement to meet the IM performance standard, EPA based the BTA IM standard on the performance of traveling screens for all facilities subject to today’s rule (i.e., in scope generators and manufacturers). EPA concluded that this technology is effective, widely available, feasible, and does not lead to unacceptable non-water quality imp acts. Furthermore, the inclusion of seven IM compliance alternatives provides a high degree of flexibility. For more discussion, see Essay 19. With respect to the structured site-specific en trainment determination, EPA similarly finds that approach is flexible enough to apply to all facilities subject to today’s rule.

EPA disagrees that total industrial water use on a percentage basis is small enough not to have an overall adverse environmental impact in the U. S., as EPA has already identified numerous case studies where a single facility was causing an ad verse environmental impact. In addition, at least 14 percent of manufactur ers below 50 mgd withdraw more th an 5 percent of the mean annual flow (MAF) river; in Phase II, the 5 percent MAF criteria was us ed as one indicator of cooling water intake structures having an adverse envi ronmental impact. Even at 20 mgd, there are 17 facilities that withdraw more than 5 percent MAF, and another 11 which withdraw from small unnamed or unknown source waters. Thus one fourth of the 116 facilities under 20 mgd exceed 5 percent MAF. The EPA concludes that such flow s are not small flows or low flows. Further, cumulative impacts of facilities with DIF below 50 mgd are significant in most of the U.S. At least 54 percent of withdrawals by just those facilities with DIF below 50 mgd are cumulative withdrawals, i.e., there are withdrawals by more th an one facility on the same river segment. See TDD Chapter 4 GIS overlays of co-located facility intakes, Essay 14, and TDD Chapter 5 for more information.

Commenters have asserted that EPA has relied mostly upon data and analyses for power plants and have simply applied the re sults to manufacturers without considering th e differences. They assert that EPA has established separate effluent gui delines for the many different industries included in this rule as well as different electr icity-generating power plan ts and that this rule essentially lumps them all into one without cons ideration of the differences. EPA agrees that many of the intake technology applications a nd cost modules used for the installation and operation and maintenance of the technologi es upon which the impingement mortality

Essay 13 33requirements were based in the final rule were adapted from those developed for the Phase II Rule. EPA found that manufacturers use essentially the same intake tech nologies and cooling system types as electric gene rators (see TDD Chapters 4 and 5) and commenters have not presented any specific data explaining why the te chnologies used at generating facility intakes cannot be used at manufacturing facility intakes. The primary reason that the same technologies are used at both generating and manufacturing faci lities is that at both types of facilities the intakes serve the same function and purpose. In a ll cases, the primary function and purpose is to make available a continuous supply of water that is relatively fr ee of debris that may interfere with downstream uses of the water. EPA agrees that there are small differences between power generating intakes and manufactur ing intakes with regard to th e frequency and distribution of technologies used, but no single in take technology is unique to one or the other. EPA recognizes that the availability, efficacy, and relative cost of each technology will vary from site to site and accounted for this variation by providing facilities with multiple alternatives for complying with the impingement mortality BTA standard that allo ws a facility to choose from a wide variety and mix of technologies and operational measures (s ee Section VI of the preamble). EPA also accounted for these differences in the complian ce cost analysis. Compliance technologies are selected for the model facilities based on s ite-specific parameters (see TDD Chapter 8). Differences in the distribution and availability of technologies prompted EPA to revise the cost methodology to reflect these differences. EPA found that manufacturing intakes tended to use passive technology more frequently and traveli ng screens less frequently. Originally, in the proposed compliance cost estimates, EPA assumed that even facilities w ithout traveling screens could easily upgrade to traveling sc reens. EPA realized that intakes that do not currently use traveling screens may not be able to simply re place existing screens with traveling screens and revised the technology selection methodology for the costs estimates such that a more costly technology such as new larger inta ke or wedgewire screens would be selected at any intake that did not have existing traveling screens. S ee Essay 21 and TDD section 8.2.2.1 for a more detailed discussion. With respect to the comm ent that EPA extrapolated the environmental impacts of larger flow power plants to manuf acturing facilities, EPA disagrees. EPA has more than 40 biological studies from fac ilities below 50 mgd in the record.

Several commenters expressed concern that EP A did not consider that manufacturers cannot simply stop production or curtail operations the wa y power generating facili ties that operate on the “grid” can. EPA agrees that the ability to avoid interruptions in plant operation due to construction downtime can be site-specific. In most instances, EPA f ound that plant operators would develop specific solutions in the event any downtime is necessary. For example, some manufacturers can coordinate in stallation downtime with other scheduled outages, can purchase or obtain power and/or steam from other near by sources at a cost far less than stopping production, and can stockpile intermediate products to allow a phased approach to installing control technologies at i ndividual unit operations. Duri ng site visits and in discussions with plant operators, EPA confirmed that for most manufactur ing plants, a solution can be engineered that would avoid any incremental downtime at most sites. Further, where necessary, such interruptions can be taken into account by the permit writer in its site-specific consideration of entrainment controls. In terms of compliance with the IM requirements, EPA expects this downtime, if any, is addressed by the timelines contemplated by the rule. During the period when the facility is collecting and submitting materials under this timeline, the final rule at § 122.21(r)(8) ensures both the owner or operator and the Director will have an understanding of

Essay 13 34future operational schedules and can coordinate the installation of technologies with planned shutdown activities. Also see Essay 35.

Commenters have noted that to tal manufacturing facili ty withdrawals are onl y about 10 percent of the total for the electric generating industry. EP A agrees with this estimate but has determined that this factor does not warrant separate treatment with regard to regulating impingement and entrainment. There are large and small intakes within both groups and EPA has concluded that size alone does not always correlate to rela tive impacts. As already discussed above a manufacturer could be located on smaller water where even a sma ller amount of intake will have some environmental impact. Commenters also neglected to acknowledge cumulative impacts from multiple users of a given source waterbody.

Commenters noted that manufact uring facilities which compete in a global economy cannot pass costs on to consumers as readily as power gene rators can. EPA acknowledges these concerns and did treat manufacturing facilities differently in the economic anal yses. In the economic analysis EPA assumed no cost pass through for all manuf acturing facilities (see Essay 47). Even under such conservative assumptions, the EPA found that only one facility ex perienced a cost to revenue ratio greater than 1 pe rcent. For generating facilities, EPA took different approaches concerning cost pass through depending on the analys is being performed. See the EA for a more detailed description.

EPA also addressed the differen ces between power generating and manufacturing facilities in assessing the impact of social costs in the economic analysis. See the EA for a more detailed discussion of social costs.

A commenter noted that flow reduction may cr eate problems with concentration based compliance limits for mixed cooling and process wa ter discharges. EPA agrees that there may be a limited number of instances where such a prob lem may be encountered but notes that NPDES permit limits tend to use mass-based limits in or der to avoid discourag ing flow reduction or encouraging dilution. EPA notes that facilities ha ve seven IM compliance alternatives and that flow reduction is not required by any facility, unl ess it elects to comply via that approach. The Director has been given wide discretion with regard to entrainment reduction requirements and EPA would expect Director’s to in clude consideration of this issue in the determination of flow reduction requirements.

A commenter noted that the steam electric industry has significant experi ence with CWIS issues, including a wealth of site-specific data, while the other segments typically do not. EPA agrees that there may be significant differences in the amount of technical knowledge and biological data collected between these i ndustries, especially between power generators covered by the Phase II Rule and manufacturers. Recognizing that some facilities may need additional time to conduct technology assessments and collect biological data, the rule includ ed several provisions that provide flexibility for the permit application requirements. See Section VIII for more details. On the other hand, EPA’s compliance costs for manufacturers may be overstated since the industries will be able to benefit from cost effective solutions already developed or under development by power generators.

Essay 13 35One commenter noted that the proposal preamble at page 22190 incorrectly stated that the Effluent Guidelines for the Steelmaking subs ector of the Iron and Steel ELG require no discharge of process pollutants . They point out that only EAF utilizing semi-wet gas cooling systems are restricted to no discharge and suggest that EPA perform additional evaluation of the steel industry, and other non-electric al generating industries to bett er understand water use. Since proposal as described above, EPA visited numerous manufacturing fa cilities of different types including two steel making fac ilities. EPA has revised the pr eamble discussion regarding steelmaking regulations and water use and consid ered the information obtained from the site visits during the developm ent of the final rule.

One manufacturing commenter stated that th ey spent over $250,000 (not including I&E or thermal studies) amassing information requested as part their NPDES permit renewal and despite the data submitted the permitting authority comp ared their small generating unit to a large generating plant in the region a nd reached incorrect conclusions regarding the feasibility of closed-cycle cooling as an entrainment cont rol option. EPA notes th at the commenter is describing a site-specific determination of en trainment requirements conducted by the permitting authority and that today’s fi nal rule provides a structured approach that will allow a manufacturing facility to provide information specific to it and for the Director, as appropriate, to consider the information. A comm enter stated that EPA admits that it does not fully understand key issues associated with manufacturing sites citing EPA’s statement that “EPA has observed significant water reuse at manufact uring facilities, but has not developed national level data for such reuse due to the range of different manufact uring sectors and the significant variability in manufacturing processes (during si te visits, it was obs erved that complex facilities have found it difficult to assess their specific water reuse).” EPA disagrees that fail ure to develop national level data for water reuse practic es means that EPA is unable to make policy decisions about the appropriate way to control cooli ng water intakes at manufacturing f acilities. As discussed in the proposal 76 FR 22200 and the final rule preamble s ection VI, EPA has sufficient information in the record to demonstrate the widespread use of these technologies. For example, 313 facilities have intake velocity below 0.5 fps; 1054 facilities already employ some form of traveling screen plus 168 of these facilities already have a fish handling and return system; 235 use passive screen technologies; 80 facilities alrea dy have behavioral deterrent syst ems; 400 facilities already have closed-cycle cooling. See TDD Chapter 4 for more information. For specific information regarding achievability of the IM performance sta ndard using modified traveling screens, see the TDD Chapter 11 and the June 2012 NODA.

EPA notes that the degree of water reuse can be re levant in determining whether a facility meets the 25 percent cooling water criterion for facilities that fall within scope of the rule 7 and in assessing flow reduction in determining entrai nment reductions. Under the final rule these determinations are performed on a site-specific basi s and therefore the specific situation at each facility will be assessed independently at that time. The degree and nature of water reuse downstream of the cooling water intake genera lly does not provide any less opportunity for a manufacturing facility to comply with the im pingement mortality BTA requirements than a generating facility with similar intake characteri stics. In fact, since ma nufacturing facilities tend to have greater opportunities to employ water reuse than generating facilities, they also tend to have greater opportunity to utilize compliance strategies that rely upon flow reduction which

7 Cooling water that is reused for another purpose is excluded from the definition of cooling water.

Essay 13 36may assist in complying with the IM low veloc ity compliance alternative or provide credit for reduction under the system of tec hnologies compliance alternative.

A commenter submitted the report, “Freshwater Use by U.S. Power Plants: Electricity’s Thirst for a Precious Resource.” EPA welcomes this data and assessment of current and future water use by power generators in the United States. The report does suggest that wa ter stress related to water consumption could be an issue in the futu re at many locations but the report does not comment on the rule and EPA finds nothing in this report that is in di sagreement with EPA’s general assessment or regulatory approach. With respect to the site-s pecific evaluation of controls for entrainment, the rule provides for consideration of consump tion issues. (See Essays 17A and 19, as well as DCN 12-6673.)

Where difference may exist, EPA has taken in to consideration the differences between generators and manufacturers and differences be tween manufacturing sect ors by structuring the final rule to account for the wide variety of site-specific technology de signs by allowing for IM compliance flexibility enabling each facility (each intake if necessary) to tailor the compliance technologies to specific site c onditions. IM compliance alterna tives include several compliant technologies (closed-cycle, low intake screen velocity, existing offshore velocity caps), streamlined monitoring for modified traveling screens, and employment of a system of technologies in which the aggregate combined perf ormance are demonstrated to be equivalent to the BTA technology. Facilities may also choose to comply with the IM numerical limit via biological monitoring. See Essay 16 and Section VI of the preamble for more details. Also, manufacturing facilities that are able to increas e cooling water reuse such that more than 75 percent of the water withdrawn is not used for cooling purposes 8 , may no longer fall within the scope of the final regulation and would not be subject to the requi rement of the final rule. Those manufacturing facilities that employ cooling wate r reuse may take credit for this reuse through the “system of technology” compliance alternative.

In developing the compliance cost estimates EPA us ed the model facility a pproach to address the differences between facility intakes. EPA did a ddress the differences in costing approach for CCRS, downtime, default values, and new units. S ee Essay 21 for a discussion of manufacturing facility closed-cycle costs and Essay 35 fo r a discussion of manufacturing construction downtime.

In conclusion, the final rule has carefully in cluded consideration of the differences between power generation facilities, manuf acturing facilities and the differe nces within the manufacturing sector as well with regard to water use, intake design and technologies, operational considerations, economic considerations and ab ility to comply with the rule. By providing flexibility with regard to comp liance alternative, EPA has enabled facilities with different facility-specific conditions to choose a compliance option that best suits the unique conditions at each facility.

8 Note that cooling water that is reused for non-cooling purposes does not meet the definition of cooling water.

Essay 13 37

### Essay 14: Scope and Applicability

Introduction The scope, applicability, and basis for the final rule are largely unchanged from that of the proposed rule. In response to comments, the fi nal rule does, however, include some minor changes to regulatory definitions that clarify the scope of this rule.

As discussed in the preamble to the final rule and provided in Subpart J at 40 CFR 125.91, this rule applies to existing faciliti es (as defined in 40 CFR 125.92( k)) that are point sources under the Clean Water Act, use or propose to use one or more cooling water intake structures (defined at 40 CFR 125.92(f)) with a cumulative design inta ke flow (DIF) of greater than 2 million gallons per day (mgd), that withdraw water from waters of the United Stat es, and use twenty-five percent or more of the water withdrawn exclus ively for cooling purposes on an actual intake flow (AIF) basis. The rule de fines DIF and AIF at 40 CFR 125.92.

In general, an “existing facility” means any f acility that commenced construction on or before January 17, 2002, (or July 17, 2006 for an existing o ffshore oil and gas extraction facility) and any modification of, or any addition of a unit at such a facility. Today’s final action does not affect the scope and applicability of Subpart N (n ew offshore oil and gas extraction facilities) or Subpart I (new facilities). Subpart J applies to all existing facilitie s meeting the definition in this subpart. The applicability provision at 40 CFR 125.91(d) makes it clear that Subpart J does not apply to existing facilit ies that are seafood proc essing facilities, offshore liquified natural gas terminals, and offshore oil and gas extraction facili ties. The final rule also defines new units at existing facilities. See Essay 20 for response to comments on the technology requirements for new units.

See the preamble to the final rule for a detailed discussion of the scope of this rule, including the following subject areas: general applicability, existing facility, cooling water, cooling water intake structures (CWIS), point s ource discharger, withdrawals from waters of the United States, use of independent suppliers, intake flow thresholds, existing offshore oil and gas facilities, existing offshore seafood processing facilities, liquefied natural gas (LNG) terminals, and new units.

General Applicability

Clarify Applicability /Exclusions Commenters requested that, in the final rule , EPA clarify certain basic aspects of the applicability of the rule. Some commenters re quested that EPA clarify the applicability provisions of the rule, specifically whether the rule is limited to steam electric and manufacturing facilities or also includes facilities such as hospita ls and schools. Some as ked how facilities with multiple units with different types of cooling are addressed (including with one or multiple CWISs). Some commenters want EPA to clarify that the rule applies only to cooling water intake structures that are actually used to withdraw cooling water. Commenters also suggested that EPA clearly state that portions of a CWIS that are downstream of a screen with through screen

Essay 14 38velocity less than 0.5 ft/sec ar e not subject to the rule. Some asked EPA to clarify whether monitoring provisions (§ 125.96(a)(1)) authorize multiple compliance points or whether the NPDES permitting authority has discretion in establishing monitoring points. Some commenters also requested that EPA define the terms “un it,” “operating unit,” “contact,” “non-contact,” and “process water.”

EPA has described the applicability of the existing facility rule in the scope section of the preamble to the final rule. The regulation at § 125. 91(d) clearly specifies which existing facilities are not subject to Subpart J. This rule applies to any facility that meets th e applicability criteria for the rule at § 125.91(a) and therefore it is not limited to steam electric and manufacturing facilities.

In cases where a facility has multiple cooling water intake structures, under 40 CFR 122.21(r)(6) of the permit application, the owner or opera tor must identify the chosen impingement compliance method for the entire facility under 40 CFR 125.94(c) or al ternatively, the permit application must identify the chosen complia nce method under for each cooling water intake structure at the facility. Each intake used for cooling water withdrawals is subject to section 316(b). The rule includes several alternatives fo r meeting impingement mortality requirements. In the case of the impingement mortality performa nce standard alternative, the standard may be implemented on a facility or intake basis. Thus the rule provides flexibility to an in-scope facility to select an impingement compliance approach that accounts for multiple units or multiple intakes.

The rule does not require the all facilities to identify entrainment controls in the permit application because the BTA for entrainment will be determined by the Director on a case-bycase basis. The final rule establishes a framework for facilities to submit studies to the Director to inform the determination of BTA for entrainment. In the case of facilities with AIF greater than 125 mgd, however, such facilities must provide relevant information on candidate entrainment control technologies and information on entrainment measures already in place with at their facilities. Such information is require d under § 122.21(r)(9)-(12). For facilities below this threshold, the Director has the di scretion to request whatever info rmation is necessary to make the entrainment determination.

All facilities that have a cooling water intake structure are su bject to section 316(b) of the CWA. Existing facilities that are not subject to the national BTA standards at 40 CFR 125.94 must meet requirements under section 316(b) that are esta blished by the NPDES permitting Director on a case-by-case, best professional judgment basis as the final ru le at 40 CFR 125.90 makes clear. The final rule establishes national BTA standard s for existing facilities that use one or more CWISs to withdraw greater than 2 mgd of cooling water and meet other criteria. As discussed in more detail below, EPA establis hed this threshold for applicability of the final rule BTA based on data showing a 2 mgd threshold addresses the vast majority of cooling water flows (i.e., 99.7 percent). The record shows that the BTA sta ndard for impingement mortality controls is achievable for all in-scope faciliti es and controls to meet the sta ndard are widely available; see the preamble for more details. Certain aspects of the rule are addressed to facilities with the largest intake structures and largest cooling water intake flows. For example, there are more detailed permit application requirement for facilities above 125 mgd. The additional data required for these permits is necessary to assist the Director in the site-specific decision-making

Essay 14 39required by the BTA standard for entrainment to develop the specific entrainment requirements applicable to such facilities. Facilities wit hdrawing fewer than 125 mgd are not required to submit this information unless it is requested by th e Director. In the case of these smaller flow facilities, the EPA concluded that the Director would not necessarily need this additional information in order to establish BTA entrainment requirements.

With regard to an intake that does not withdraw any cooling water but is at an in-scope facility, EPA agrees such an intake is not subject to requirements under this rule as long as it does not withdraw cooling water. For example, an intake that does not withdraw water for cooling, such as an auxiliary intake used exclusively for fi re suppression, is not subj ect to section 316(b).

Some commenters appear to be confused about the diffe rence between section 316(b) requirements and the uniform requirements establ ished by this rule. Sec tion 316(b) of the CWA requires that all intakes at existing facilities that withdraw water for cooling are subject to section 316(b) requirements. Only those facilities meeting the applicability cr iteria at 40 CFR 125.91(a), however, are subject to the standard s established in the final rule. All other existing facilities that do not meet the applicability crite ria at § 125.91(a) will continue to be subject to section 316(b) requirements developed by the NPDES permitting authority on a case-by-case, BPJ basis.

EPA disagrees that a facility with low intake velo city should be automatically exempted from the rule. While low intake velocity is a complian ce alternative for the IM performance standard, EPA’s record shows that low intake velocity has no significant effect on entrainment. In particular, eggs and early life st ages of larvae have no avoidanc e response or mobility, therefore a low velocity is not protective of these orga nisms. The Director must consider whether additional controls for entrainment still need to be developed at a facility that already meets the IM performance standards when the Director is making the site-specifi c determination of BTA entrainment requirements required by this rule.

Under the final rule, portions of a CWIS that ar e downstream of a screen with through-screen velocity less than 0.5 f t/sec would be able to comply with the IM performance standard via the low velocity compliance alternative. EPA has re moved the additional provisions for entrapment from the final rule. However, where a facility elec ts to comply with the IM BTA standard via the IM performance standard compliance alternative, any entrapped organisms must still be counted as mortality; see 40 CFR 122.94(6)(i)(F). Similarly, fac ilities that elect to co mply with one of the IM compliance alternatives that requires an optimization study must consider entrapped organisms as mortality. The rule provides for mo nitoring and reporting to make sure that this requirement is met and to provide transparency to the affected communities that the facility is meeting this requirement. Facilities should also not be exempted because the Director may determine that further requirement s beyond velocity controls for IM (or entrainment controls) are necessary for threatened and e ndangered (T&E) species, shellfish, or fragile species; see 40 CFR 125.94(c)(8) and (9) and 40 CFR 125.98(f). These a dditional requirements may include controls for impingement, entrainment, or both. All facilities with cooling water intakes, even low intake velocity facilities, remain subj ect to all applicable portions of the rule and applicable NPDES permit provisions, including all requirements for compliance monitori ng, data gathering, and submission of certain studies.

Essay 14 40Some commenters raised questi ons concerning monitoring for multiple compliance points with the BTA impingement mortality standard. Complianc e with certain of the alternatives for the impingement mortality standard (e.g., comb ination of technologies at 40 CFR 125.94(c)(6)) requires submission of a performance optimizat ion study with a minimum of two years of biological data gathering/collecti on in order for the Director to determine whether the controls represent BTA impingement mortality control. The system of technologies may involve, for example, reductions in impingement due to in take location, flow reduction, or behavioral deterrents. The system may also include scre ens or other technologies. Therefore, the performance optimization study necessarily invo lves multiple monitoring points. The permit must then contain narrative requirements that en sure each technology is operated in an optimized manner, consistent with the demonstrated performance. Other impingement mortality compliance alternatives include the minimum monitoring provisions at 40 CFR 125.96. There may also be additional impingement mortality monitoring requirements es tablished pursuant to 40 CFR 125.96(a)(1). This provision authorizes the Director to require additional compliance monitoring requirements such as biological monitoring, intake velo city and flow measurements. EPA expects that such monitoring will correspond to application of the rule’s impingement mortality requirements and thus would depend on the configuration of the facility and compliance alternative adopted and could encomp ass multiple monitoring points. As with all NPDES permits, monitoring data are used to in form the Director and to assess compliance. Additional discussion of multiple compliance po ints may be found below in the Point of Compliance section of this comment response.

EPA is defining key terms for the final rule in 40 CFR 125.92, revising these definitions from the proposal where changes provide cl arity or are otherwise appropriate. EPA did not further define “new unit” by including a definition of the term s such as “unit” and “operating unit” because these terms are widely understood. Certain other te rms are not defined specifically in this rule because already defined in EPA’s regulations. For example, the term “non-contact cooling water” is defined in 40 CFR 401.11. Similarly, the term “process wastewater” is defined 40 CFR 122.2. There was no reason to define these terms di fferently for the purposes of cooling water intakes. EPA is confident that by reviewing existi ng definitions that are a pplicable to the NPDES program and the special definitions provided in the final rule, stakeholders can understand and apply the requirements of the rule.

Commenters also suggested that EPA exempt certa in facilities from the rule. Some commenters stated that EPA should exempt small and infreque ntly used (less than 30 days a year) intakes from the rule’s requirements. Some commenters recommended that EPA exempt utilities that generate less than 100 megawatts from the fi nal rule’s requirements. Other commenters maintained that EPA should exempt from the rule once-through facilities th at provide fresh water diversions to help rebuild wetlands and rebuild ec osystems in Louisiana (to create an incentive for such activities).

EPA decided not to adopt the sugges tion that the rule exempt facil ities that operate infrequently for several reasons. First, some electric generati ng facilities functioning as peaking plants are still likely to affect aquati c organisms adversely. Many operate during biologically important periods of the year, e.g., spawning, early life stage or migr ation periods. Moreover, many peaking facilities continue to withdraw signifi cant volumes of cooling water even when the facility is not producing power. In other cases, water is withdr awn to reduce startup times, avoid

Essay 14 41pump cavitations, or to keep the cooling water in take system primed. Therefore facilities may operate their cooling water intake structures even when electrici ty or manufactured goods are not being produced. Other facilities may withdraw water for relatively short periods of time, but such withdrawals may coincide with spawning seasons or other biologically important periods. Such withdrawals may still pose an adverse environmental impact. Therefore EPA disagrees that infrequently operated facilities should be categor ically exempted from compliance with the BTA impingement mortality and entrainment standards. However, the final rule does include provisions that may provide relief from impingement mortality controls in those instances where infrequently used facilities ar e not causing signifi cant adverse environmental impact. The final rule provides flexibility for the Director to d ecide not to require impingement controls where rates of impingement are exceptionally low as to be de minimis. In the case of infrequently used facilities, the facility can take credit for reduction s in cooling water withdrawals as part of their system of technologies; see the Implementation section of the preamble and the NODA at 77 FR 34324 for examples. The rule does not exempt power facilities with lower power generation rates for the same reasons discussed above. In additi on, a low power facility does not always mean low intake flows. A low power facility could, for example, generate steam in addition to electric power. The final rule does, however, include a provision for low capacity utilization power generation units that allows the Director to establish less stringent impingement mortality requirements in those instances where the facility can demonstrate no adverse environmental impacts. Further, the Director may factor in to the site-specific determination of BTA for entrainment that a facility’s limited usage of th at intake. The final rule does not exclude oncethrough facilities that divert wa ter to rebuild wetlands sin ce section 316(b) addresses the withdraw of cooling water, and such diverted water does not reduce the withdraw of cooling water. Also see Essay 19.

Point of Compliance Numerous commenters addresse d the need for a clear point of compliance for the rule requirements. Some commenters stated that EPA s hould define CWIS to make the point of first withdrawal from a water of the United States the single point of compliance for 316(b), even where impoundments are part of the CWIS and are themselves waters of the United States. Comments to the contrary indicated that the poin t of intake from a water of the United States for makeup water provided to a cooling pond or reservoi r should be the point of compliance. Some commenters stated that if a cooling pond is water of the United States, then withdrawal of water for a pond is merely a water transf er and that the point of complia nce should be for water that goes from a pond to a facility. Commenters also suggested that EPA clarify one point of compliance per CWIS or risk multiple internal points of compliance with added costs not addressed by EPA. Some commenters observed that it is important to avoid multiple compliance points. Other comments suggested site-specific f actors should be consider ed, but there should be a single point of compliance. Some commenters sugge sted that EPA allow flexibility to select an appropriate point of complianc e. Commenters observed that it is important to clarify the applicability of the rule require ments (i.e., point of compliance) in specific situations, for example when an intake is used to withdr aw water from a river and deposit it in an impoundment, holding or storage lake , basin, or cooling pond, or wh en an intake is used to withdraw water from an impoundment and provide that water to a coolin g unit. Some suggested that a water supply intake that pumps water to a cooling pond/ reservoir/ lake should not be subject to the rule since the in take pump has no discharge to a water of the United States. Some

Essay 14 42commenters asked that EPA clarif y the point of compliance for the velocity requirements. These commenters observed that the point of complian ce could be the mouth of the intake or the screen. Some asked for clarificati on of the point of compliance for intake tunnels and the use of a forebay. Finally, commenters asked whether th e new unit provisions at 40 CFR 125.94(e) indicates multiple compliance points.

As noted, the final rule establishes the BTA standards for impingement mortality and entrainment. What specific impingement mortalit y and entrainment controls will be required in the case of individual facilities as a result of the final rule will be determined in individual permit proceeding. How and where compliance with th ese requirements should be measured will necessarily depend on the nature of the particular controls required as a result of the permitting process. Thus, the point of compliance is a f unction of the BTA compliance alternative being implemented in a permit and the elements of the CWIS, possibly including associated constructed waterways, subject to BTA requirements or monitoring provisions. Further, in some cases it is necessary to allow for more than one point of compliance to accommodate the difference in control technologies that reduce mortality and the c ontrol technologies that reduce numbers of organisms impinged and entrained in the first place. In other cases, facilities have more than one intake structure, thus the final rule must be able to accommodate multiple points of compliance. EPA notes that the rule str eamlines or eliminates biological compliance monitoring for many of the alternatives for IM. As discussed in the preamble, in most cases no biological compliance monitoring is required. EPA’s decision to a dopt this approach is further supported by the large number of commenters poin ting out the variations in intake structure locations, multiple appropriate points of complian ce, and the specific situations that warrant a site-specific decision on the point of compliance. In any event, the EPA disagrees that multiple compliance points will result in costs not consider ed by the EPA. While the majority of facilities have single intake structures (67 percent of generators have a single intake structure and 76 percent of manufacturers have a single intake structure; see TDD Chapter 4), EPA included compliance costs for every intake at a facility; in some cases EP A included costs for more than 5 intakes at a single facility for compliance with the final rule.

As an example, the Director may determine th at, in the case of an existing CCRS using wet cooling towers, compliance should be measured at the point at which makeup water for the cooling towers is withdrawn. This point could be a water of the U. S., the point of withdrawal for an impoundment, or another entity providing treated wastewater to be reused as cooling water. EPA acknowledges that the point of compliance for facilities with an impoundment may also vary depending on the nature of the impoundment and whether the facili ty withdraws from a water of the United States. It is important to note that CCRS requirements focus on reuse, minimized makeup and blowdown, makeup to re place only blowdown, dr ift and evaporation, and performance criteria for fresh and salt water intakes. However, EPA also acknowledges that an intake structure may be used for more than just cooling purposes, and that more than one intake may be utilized. Each of these inta ke points would need to be accounted for.

With respect to intake velocity, EPA disagrees with the comment that the mouth of the canal should be the sole compliance point. The final rule at 40 CFR 125.94(c)(2) and (3) makes it clear that the through-screen intake ve locity is a point at which comp liance would be measured. In a situation where a facility choosing to comply with the actual velocity requirement, the intake canal may have a velocity at the mouth of the canal that is less than 0.5 fps. However, the facility

Essay 14 43still must meet the 0.5 fps standard at the screens. As discussed in the TDD, fish must be able to escape from impingement on the screen, forebay, or intake area, even though the velocity at the mouth of the canal is low enough to allow fi sh freedom of movement. The Director may determine it is appropriate to establish permit c onditions that require velocity monitoring at both locations.

For an existing offshore velocity cap, the cap loca tion (relative to shoreline and the littoral zone) and its design must meet the de finition in the rule and, as a re sult, the compliance is measured primarily at the velocity cap. This is likely the case regardless of any cooling water system downstream from the velocity cap (assuming the downs tream system is not used to meet the rule requirements). For example, while an offshore velo city cap typically supp lies water to a forebay or canal used for a reliable level cooling wate r supply, the primary point of compliance for the impingement mortality requirements of the ru le is the offshore cap, even though traveling screens are in place in the forebay.

As noted, an existing facility that intends to meet the impingement mortality requirements of the rule through installing and operati ng modified traveling screens mu st ensure that the screens and fish returns meet the definition at § 125.92. Compliance for this impingement mortality alternative requires operation of the facility in compliance with permit conditions that will ensure the modified traveling screens are operated so as to obtain the optimum performance that the Director determined is the best technology ava ilable for impingement reduction at the site. The primary compliance point for this requirement may include the traveling screens, but also includes elements of the fish return. Thus the Director may reasonably establish permit conditions that require visual monitoring at multiple points of compliance. Similarly, the systems of technologies alternative is e xpected to result in multiple poin ts at which compliance must be measured. For example, a facility employing a particular technology th at the Director has determined is BTA at the site for reducing impi ngement, such as a barrier net or an acoustic deterrent, may need to demonstrate that the performance of the technology is optimized consistent with the data reviewed by the Director . In the case of the Di rector’s approval of the use of variable speed drives or seasonal opera tion at a particular site as part of the BTA impingement mortality controls, the Director ma y require both biological data and volumetric flow measurements be taken at the intake st ructure, and may include further seasonal or otherwise intermittent monitoring requirements. Once the facility has demonstrated to the satisfaction of the Director that the system is BTA for that CWIS, EPA expects the Director would establish operational measures as permit conditions.

Each facility will have to meet any applicable entrainment requirements, as well as other typical permit requirements (e.g., BMPs, monitoring, repo rting, and recordkeepin g). Compliance with entrainment requirements will depend on the specific requirements established (e.g., flow reduction, re-location of intake, et c.). A facility that chooses to demonstrate entrainment survival after passage through the f acility would necessarily need to measure organism counts both before and after the intake structure. Similarly, ot her permit requirements ma y result in additional compliance measures and combinations of tec hnology requirements may result in required measurement for compliance at many different points.

If the new unit construction is as sociated with a new intake stru cture, it is likely that a single point of compliance will be established in the permit to measure performance commensurate

Essay 14 44with closed-cycle cooling. For new units comply ing under § 125.94(e)(2), or for new units using an existing intake structure, the use of multip le compliance points would be the same as discussed above.

EPA has estimated costs for the rule includi ng but not limited to costs for meeting BTA standards for IM, monitoring, recordkeeping and reporting, plus a dditional studies and monitoring for purposes of determining BTA fo r entrainment. While EPA acknowledges that some facilities will likely install additional tech nologies as a result of the framework that requires the Director to establish the BTA entrai nment requirement for a facility based on sitespecific data, EPA appropriately did not include costs for entr ainment technologies. This is because EPA cannot predict with confidence the outcome of the site-specific BTA entrainment standard-setting proceedings, and therefore, wh ich facilities will undertak e such installations and/or what installations they may undertake. As EPA indicated in the preamble, while not available nationally, EPA finds th at closed-cycle cooling is th e most effective technology for reducing entrainment. EPA notes that it did analyze 9 Option 2 which would have required flow reduction commensurate with closed -cycle at all facilities with 125 mgd or greater (Proposal Option 2), which account for 90 percent of actual flows. As indicated above, EPA cannot determine which facilities coul d not install CCRS, however Option 2 assumes all facilities not already CCRS would retrofit to CCRS. So, EPA can look to the costs of this Option and the projected impacts as an overestimated upper e nd bound of potential entrainment technology costs that could result from the site-specific determin ations. See the EA and Essay 37. As explained in Essay 37, EPA determined the costs of Option 2 w ould not be large enough to adversely affect the economy. In addition, at proposal, EPA pres ented two hypothetical scenarios concerning additional costs some facilities might incur as a result of today’s BTA entrainment standard and we solicited comments on it. See 76 FR 22262-22263. EPA did not receive any comments or data showing that any of these hypothetical scenarios would advers ely impact the economy.

Definition of Existing Facility Some commenters stated that all new modifications should be regul ated as new facilities, since such modifications allow a fac ility to upgrade cooling technology.

EPA’s Phase I rule established 316(b) standards fo r new facilities and defines facilities subject to that rule, including the circumstances where modi fications to an existing facility are a new facility and when they do not. This final rule doe s not modify the definitions of new facility in the Phase I rule. This final rule establishes th e BTA standards for exis ting facilities, including requirements for new units at such existing facili ties. For further discussion see the preamble to the final rule.

EPA does not agree with the comment that all modi fications allow a facility to upgrade cooling technology. For example, a Type 3 “extended powe r” uprate at a nuclear facility may require significant modifications to the transformer or generator, and these major facility components have nothing to do with the existing cooling wate r intake structure syst em. Such modifications do not pose an opportunity for the facility to upgrade their cooli ng system technology.

9 EPA rejected closed-cycle as BTA (u pon which Option 2 is largely based) based on three factors. See the preamble and Essay 19 for additional information.

Essay 14 45CWIS Some commenters asserted that th e use of condenser cooling water from another unit is not using a CWIS. Some stated that the “not limited to ” language in the proposed definition of CWIS means that the definition could include an enti re facility, and suggested that EPA revise the definition to support one clear point of compliance. Some co mmenters stated that EPA has defined CWISs too broadly, including artificially constructed stru ctures that have a low amount of aquatic life due to natural barriers, water depth, current and other factors.

The comment does not make it clear how condenser cooling water from another unit would be reused. The rule provides that the recycling of treated effluent as cooling water does not constitute use of a cooling water intake struct ure (see 40 CFR125.91(c); also see the definition of “cooling water” in § 125.92). EPA di sagrees with the approach that would define a single point of compliance for the reasons described above. As explained above, compliance is measured at a point depending on the impingement mortality and entrainment cont rols required for a particular facility. For the proposal, EPA defined CWIS broadl y so as to able to ad dress the full range of configurations and physical settings employed by existing facil ities. EPA agrees, however, that it may have been overbroad and consequently has removed the “not limited to” language from the proposed definition of CWIS. As a result, the de finition of CWIS is the same as the Phase I definition. The definition is consistent with th e variety of technological configurations used by facilities that withdraw water through intake structure for use as c ooling water in their operations.

Definition of Cooling Water Intake

Twenty

‐ five (25) Percent Water Used for Cooling Purposes Comments on the definition of cooling water addressed both the 25 pe rcent water used for cooling purposes and the exemption of certain so urces of cooling water. With regard to the 25 percent requirements, some commenters stated that EPA should only regulate CWISs that withdraw exclusively cooling water (i.e., 100 percent cooling water). These commenters asserted that EPA lacks the authority to regulate proce ss water intakes. Other commenters argued that a CWIS should not be regulated unless at least half (50 percent or greater) of the intake water is used for cooling (based on actual intake flow over 3-year operating basis). These commenters maintained that below 50 percent an intake is not a CWIS. Commenters stated that EPA needs to justify the 25 percent threshold for existing faci lities, and noted that the 1977 guidance uses 50 percent or greater. Commenters noted that at 25 percent (of 2 mgd) the threshold for rule applicability is in th eir view low (500,000 gpd) and further as serted that limited or no impact occurs at that level. Some argued that EPA’s rule is not consistent with the intent of section 316(b) by including intakes that w ithdraw a majority of non-cooli ng water. Some argued that the threshold for cooling water use should be 5 or 10 percent, not 25 percen t, since this would protect multi-purpose intakes. Some commenters suggested using AIF for percentage cooling water use to capture more CWISs.

Some commenters asserted that an individual CWIS that withdr aws less than 25 percent cooling water should not be subject to the rule requirements since the intake is not a cooli ng water intake. Some suggested that when assessing the 25 pe rcent criterion, EPA s hould assess each CWIS individually. These commenters noted that the preamble supports this, al though the rule indicates

Essay 14 46the 25 percent criterion is applied facility-wide. In contrast, some comm enters observed that it would be a burden to consider CWISs individually. Commenters also su ggested that EPA should allow engineering estimates to determine 25 percent cooling water use since manufacturing industries do not always measur e cooling water flow. Some comm enters argued that EPA should allow a representative annual av erage over the previous 5 year s to determine the 25 percent cooling water use.

EPA does not agree with comments stating that th e 25 percent threshold is inappropriate. As indicated in the preamble to this rule, EPA proposed, took comme nt, and finalized the 25 percent threshold in the Phase I, Phase II, and Phase III rules and has not received new information that supports changing this approach. As discussed in the preambles to the Phase I and Phase II rules (66 FR 65287-65288, December 18, 2001; 69 FR 41581 and 41611, July 9, 2004), EPA chose the 25 percent threshold to ensure that almost all cooling water withdrawn from waters of the United States is addressed under this sect ion 316(b) regulation because cooling water withdrawals via CWISs is associated with adve rse environmental impact. The preamble to the final rule explains in detail the nature of thes e effects. In addition, the EPA received extensive materials from commenters amplifying on the signifi cant harm associated w ith the withdrawal of water for cooling. EPA consequently concluded th at it is not reasonable to exclude from national regulations facilities that use si gnificant quantities of cooling water and, as a result, impinge and entrain large numbers of aquatic organisms.

EPA notes that it has provided incentives in the final rule to encourage recycle and reuse of water for cooling purposes. While a facility adopti ng some of these practices is still subject to requirements under section 316(b), in some cases these reuse measures alone could result in compliance with the BTA standard for impingement mortality. In other cases a facility could be out of scope (for example the facility no longer withdraws from a waters of the U.S.) and therefore is no longer subject to this rule because th e definition of CWIS is not met. The EPA disagrees that the approach to multiple intakes poses excessive bur den. More than 96 percent of existing facilities have 3 or fewer intake structur es, and the vast majority of existing facilities only have a single CWIS; see TDD 4.1.5 and th e discussion above on multiple points of compliance. Further, the facility has the option to comply on an intake basis or on a facility basis, as discussed above. The EPA disa grees that a CWIS must withdraw 100 percent of the water for cooling; such a requirement poses a loophole wher eby a facility need use a small amount of water for some alternative purpose and thus be ex empted from any requirements. The final rule provides that twenty-five percent or more of the water the faci lity withdraws on an actual intake flow (AIF) basis be used excl usively for cooling purposes. The rule defines AIF as an annual average over a specified time period (the three years preceding promulga tion of the rule until five years after promulgation of the rule, at which time, the intake is averaged over the past five years).

EPA notes that facilities that withdraw cooling water from wate rs of the United States and use less than 25 percent of wa ter withdrawn for cooling still rema in subject to 316(b) requirements established on a case-by case, best professional judgment (BPJ) basis. These facilities use cooling water and the intake of such cooling wate r may result in adverse environmental impacts. EPA notes that the Second Circuit has upheld the use of BPJ-based requirements for belowthreshold intake structures in its decision in Riverkeeper v. EPA, 338 F.3d 174, 203 (2d Cir. 2004).

Essay 14 47Scope of Exemption for Certain Waters With regard to rule provisions that exclude cert ain water from the definition of cooling water, commenters offered different view s. Some commenters asserted that exempting water from a public water system (PWS), reclaimed, treated effl uent, or water used in a manufacturing process before or after use for cooling from the definition of cooling water for pu rposes of the 25 percent threshold is unacceptable because the overbroad exemption negates 316(b) protection wherever there is dual use, promotes energy intensive pr actices such as desali nation, puts pressure on limited water resources, and violates restrictions on the use of rest oration as an alternative to cooling water intake requirements. Some argued that excluding water from a PWS may shift the burden of regulation onto municipalitie s, who lack adequate resources.

Some commenters recommended eliminating § 125.91(c) and § 125.92, which could function to narrow the scope of the rule some by providing th at obtaining cooling wate r from certain sources (a public water system, using reclaimed water from wastewater treatment facilities or desalination plants, or recycling tr eated process wastewater effluent) does not constitute use of a cooling water intake structure. Similarly, one commenter argued that excluding water subsequently used for desalination from the de finition of cooling water allows both the power plant and desalination plant to av oid regulation of water intakes al together resulting in harm to aquatic organisms -- in California desalination plants are permitted assuming co-location with power plants subject to 316(b) -- and that water used for cooling remains cooling water. EPA disagrees that these provisions reduce the sc ope of the rule. These provisions do, however, function to ensure that water withdrawn exclus ively for cooling is addressed, and by providing clarity as to how other sources of water used for cooling will be addres sed by the rule. EPA has further made it clear that water obtained from these alternate sources (as well as cooling water used in a manufacturing process either before or after it is used fo r cooling) is considered process water, not cooling water, for the purposes of calcu lating the percentage of a facility’s intake flow that is used for cooling purposes (s ee § 125.92 – definition of “cooling water”).

In contrast, some commenters maintained that the exemption for reus ed water is not broad enough. They indicated that process water from pow er stations, treated e ffluent from ash ponds, once used cooling water, reclaimed acid mine disc harge, and treated effl uent from wastewater treatment operations should also be exclude d from being considered cooling water.

Some commenters argued th at reuse of cooling water that wo uld otherwise be discharged from another unit is not using water fo r cooling purposes under this rule. They stated that EPA should exclude (in § 125.91(c) and § 125.92) all recycled effluent used as c ooling water, not just treated effluent used by manufacturing a nd electric power facilities. So me commenters asked for EPA to clarify § 125.91(c). Others suggested that the rule should include a short term exclusion from rule requirements for times when reuse of water fo r cooling is not possible because such water is unavailable. This would avoid the need to shut down.

Some commenters observed that EPA has not indicated how much time a facility has to adjust water use to potentially meet the reuse exclus ion and get cooling water intake below the 25 percent flow criterion.

Essay 14 48Some commenters asserted th at the exemption in § 125.94(d)(3) should apply to existing facilities and new units and addr ess impingement and entrainment. Some asserted that dilution water should not be considered cooling water.

Section 125.91(c) of the final rule provides that obtaining cooling water from a public water system, using reclaimed water from wastewater treatment facilities or desalination plants, or recycling treated effluent as c ooling water does not constitute use of a cooling water intake structure for purposes of Part 125 subpart J. Section 125.92 provides that cooling water obtained from a public water system, reclaimed water from wastewater treatment facilities or desalination plants, treated effluent from a manufacturing facility, or cooli ng water that is used in a manufacturing process either befo re or after it is used for coo ling as process water, is not considered cooling water for the purposes of calcula ting the percentage of a facility’s intake flow that is used for cooling purposes. EPA does not agree that these provisions are overbroad or negate 316(b) protection. After thorough consideration of the wide range of comments received on this issue, EPA determined these provisions do not exempt water withdrawn for cooling purposes from regulation. Rather, these provision s promote the reuse of water as cooling water and thus reduce the total amount of water withdr awn from waters of the U.S. solely for the purpose of once-through cooling and any environmental impacts associated with the withdrawal of additional water. In addition, some facilities alrea dy reuse water and EPA does not want this rule to discourage such beneficial reuse.

With regard to reuse of cooling water by a de salination facility, EPA does not agree that the provisions in § 125.91(c) and § 125.92 are compliance alternatives that constitute after-the-fact restoration or that such reuse renders the rule ineffective. As discussed in the preamble, restoration as a measure to comply with BT A is not authorized under the Clean Water Act; therefore the final rule does not offer restoration as a compliance alternative. These provisions help define the applicability of the rule and, as noted, promote water reuse.

This final rule does not apply to desalination pl ants that provide desali nated water to another facility as a source of cooling water. Regarding the refere nce to desalinization plants in § 125.91(c), the EPA’s authority is limited to coo ling water intakes and th us does not otherwise apply to desalination plants where they do not withdraw water for cooling purposes. EPA notes that typically a desalination facility will reuse cooling water from a power plant after it has served its cooling function (energy conservation is achieved through the reuse of heated water). The regulation simply explains that (under the statute) a desalinizat ion plant’s use of water is not for cooling, and although the wate r was once used for cooling, the water is not subject to 316(b) when it is accepted by the desalination plant. S ee the Big Bend (Tampa Bay, Florida) Site Visit Report (DCN 10-6502).

In addition to PWS and desalination plants di scussed above, other sources of water may be available for reuse or recycle as cooling water such as treate d effluent from a manufacturing facility or a municipal wa stewater treatment plant. Today’s fina l rule specifies that using treated effluent (such as wastewater treatment plant gr ay water) as cooling water does not constitute use of a CWIS for purposes of this rule. As a point of clarification, facilities subject to today’s rule may choose to use another entity’s treated wast ewater as a source of cooling water, thereby reducing cooling water withdraw als and associated impingement and entrainment. EPA notes that because the entity providing the wastewater for cooling has already treated it to meet any

Essay 14 49applicable discharge requirements (e.g., otherwis e applicable effluent limitations guidelines and standards, water quality standard s, etc.), EPA is not concerned that this provision will lead to pollutant discharges that would not have occurred if the treated effluent had been discharged by the other entity.

As explained above, treated effluent from a manuf acturing 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 calcula ting the percentage of a facility’s intake flow that is used for cooling purposes in 40 CFR 125.91(a)(3). Using treated process wastewater or recycling treated process wastewater effluent as cooling water does not constitute use of a cooling water intake structure under this rule. El ectric generating facilities that withdraw or use treated effluent from ash ponds for use as cooling water may not be subject to this part for that volume of cooling water reused. Section 125.91(c) could include power station process water that is reused for cooling, alt hough the quantities of such process water are typically too small to replace a power plant’s needs for cooling water. It is not clear in the comments if the reclaimed acid mine discharge is first treated, but EPA expects the provisions can be applied to any reclaimed water that meets the defi nitions and requirements of Part 125.

In addition, in the definition of cooling water at § 125.92, EPA specifically addressed the use of cooling water in manufacturing processes before or after cooling because this is the most prominent reuse of water, and this reuse is th e most likely to involve significant volumes of water reused for cooling purposes. Under this fi nal rule, less water woul d be withdrawn overall as manufacturers would not need to withdraw water solely for the purposes of cooling, reducing the environmental impacts associated with th e additional water withdrawals for cooling. EPA disagrees that such a provision would allow ma nufacturers to avoid re gulation, as manufacturing facility discharges are already subject to efflue nt guidelines, water qualit y standards, and other state and local requirements. Such discharge standa rds, in combination with the cost of treating water for use as process water, form a strong disincentive for process water withdrawals beyond what is minimally necessary at a given manufact uring facility. Further, EPA found in site visits that many manufacturers conduct wa ter and energy audits, and s ubsequently found that some manufacturing industries have significantly reduced water fl ows; see 76 FR 22189 for further discussion of the paper and the iron and steel i ndustries. Upon consideration of each of these rationales, EPA has finalized a definition of c ooling water at 40 CFR 125 .92 to provide further incentives for reusing and recycling water flows.

The final rule specifies that the schedule for compliance with permit requirements implementing the BTA standards for impingement and entrainment will be determined by the Director. The various permit application requirements at 40 CFR 122.21, 125.94 and 125.98, in some cases, require development of studies th at may take months or years of collecting and compiling data; see preamble section on Implementation. As discusse d in the preamble, this may be as short as 6 months to compile existing data and submit requi red reports. This period may be as long as 45 months for full permit application materials at some facilities, such as those that need to develop a plan for sampling, conduct the sampling, and genera te a peer-reviewed fina l report. In the case of permits issued before 45 months after the effec tive date of the final rule, the rule at 40 CFR 125.98(b)(5) provides the Director w ith the discretion to establis h an alternate schedule for submission of the required elements of the perm it application. All permit application materials must be submitted with the permit applica tion, however, under § 125.95(a)(2) the owner or

Essay 14 50operator applying for a permit expiring prior to a da te 45 months after the effective date of this rule may request an alternate schedule for the submission of the required information. For specific discussion of each of the main permit application requirements, see the implementation section in the final preamble.

The final rule does not specifically address situati ons where a facility that normally reuses water cannot do so for a temporary period of time and as a result may meet an applicability threshold. It should be noted that the 25 pe rcent cooling water use requirement is based on AIF, and AIF is defined on an average annual basis over five ye ars. Commenters did not provide data showing situations where temporary changes in AIF would tip the facility over the applicability threshold so as to make it subject to the final rule’s requirements.

Some commenters asserted that industrial customers of a city (or a private) raw water surface supply system (with CWIS) should not be subject to the rule ju st because they have a NPDES permit for wastewater discharge. EPA disagrees. A third party supplier is withdrawing cooling water and these withdrawals have the same deleterious effect on the waterbody as any other intake structure. Under the rule , a facility is “using a coolin g water intake structure” and potentially subject to the final rule if it obtains cooling water by contract or arrangement with one or more independent suppliers of cooling wa ter if the independent supplier withdraws water from waters of the United States but is not itself a new or existi ng facility as defined in 40 CFR Part 125 subparts I or J. This is intended to pr event an owner or operator of an existing facility from circumventing the rule requirements by creating arrangements to receive cooling water from an entity that is not itself a facility subject to subparts I or J. See the preamble for additional discussion.

Applicability to Point Source Discharges Some commenters asserted that th e rule requirements should not apply to facilities that do not have a NPDES permit for a discharge to water of the United States. Other commenters argued that the rule should not apply if the only NPDES permit held by a facility is for stormwater.

EPA disagrees with the comments. Section 316(b) states, in full:

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

As noted, the final rule applies to specified facilities that, among other things, are a point source as defined in CWA section 502 and in the EPA’s NPDES regulations at 40 CFR 122.2. Necessary conditions to implement the final ru le must be included in the NPDES permit of facilities subject to the rule. The independent supplier provisions in the rule prevents circumvention of the rule requirements by a facility making arrangements to receive cooling water from an entity that is not itself a facility subj ect to 40 CFR 125 subparts I or J. With regard to facilities with only stormwat er permits, EPA has determined that given the requirements of section 316(b) and the fact that the refere nced standards are implemented through NPDES permits, it is appropriate to implement the requirements of the final rule to any a facility with a

Essay 14 51NPDES permit where the facility uses a CWIS to withdraw cooling water from a water of the United States and is otherwise subject to the rule. The final rule establishes requirements designed to minimize the adverse impacts associated with the use of cooling water. There is no demonstrated relationship between these adverse impacts caused by intake of cooling water and whether discharges are continuous or intermittent. There is no basis for not subjecting a facility that withdraws significant volumes of water for cooling from the final rule merely because it only discharges stormwater.

Least Energy Demanding Source of Water Some commenters suggested that alternative sources of water used for closed-cycle cooling should be prioritized to require the least energy demanding source. The commenter did not provide data or specific suggestions on how to analyze such a requirement.

EPA does not agree that the requirements of th e final rule should be further tailored in the manner suggested by certain commenters. EPA lacked adequate data to formally evaluate such an approach at this time. The EPA has concluded, however, that the final rule will promote water reuse consistent with achi eving the authority object ives of section 316(b).

Exemptions Some commenters requested that EPA exempt various intake s, structures, and waters. Commenters suggested that EPA exempt deep water CWISs, since in the commenter’s view these cause very limited impact. Some comments requested that EPA exempt source waters that do not have aquatic and wildlife designated uses . For example, commenters pointed out that Phoenix Arizona irrigation canals ar e man-made lined canals that are waters of the United States but that do not have aquatic and wildlife designa tions (because they are not natural, they are cement lined, they dry up, and they are only used for domestic and agricultural uses) and, thus, CWISs located on these canals should not be subject to the rule. Other commenters asserted that EPA should exempt irrigation supply canals, hydroelectric supply canals, and other supply canals where CWIS impact is negligible, or allow the pe rmit authority to either exempt these waters or to determine site-specific requirements. Some commenters suggested that EPA exempt quarries or other manmade structures used to access gr oundwater. Finally, some commenters asked EPA to exempt the use of any efflue nt, not just treated effluent.

EPA disagrees with the comment regarding deep water CWISs. EPA notes the commenter did not include data supporting its assertion of limited impact. According to data in EPA’s record, SEAMAP data showing that longe r distances offshore (1) change the species subject to adverse environmental impact and, further; (2) on a organi sms density basis, the aquatic life density is not adequately reduced by distance offshore. Al so see the preamble for a discussion of why offshore velocity caps themselves do not minimi ze adverse effects to aquatic organism on the basis of intake location alone. Af ter reviewing available data, the final rule, has not categorically exempted deep water CWISs from meeting applicable standards.

In the rule EPA has not exempted intakes on sour ce waters that do not have aquatic and wildlife designated uses. EPA disagrees that source waters that do no t have aquatic and wildlife designated uses should be exempt. EPA does not consid er such an approach to be consistent with

Essay 14 52the objectives of the CWA, and further notes that waterbodies and waterbody classifications can evolve over time. However, the rule is sufficiently flexible to address these situations. For IM, facilities may have located the intake structure to reduce impingement in the first place; as discussed above, § 125.94(c)(6) “system of technologies ” allows facilities to take credit for such reductions. Furthermore, the impingement mortality requirements include a de minimis rate of impingement provision that can allow the Director to determine that no additional controls where the documented rate of impingement is so low that no additional contro ls are warranted. The entrainment requirements for existing facilities are to be determined on a case-by-case basis; this allows the Director to consid er any impacts of the CWIS. Such a determination could include consideration of technologies such as the intake location, as well as the relationship of costs to benefits.

With respect to quarries or other manmade struct ures used to access grou ndwater, EPA notes that the rule applies to the use of CWISs to withdraw water to be used for cooling from waters of the United States. Waters of the United States (WOUS) are defined at 40 CFR 122.2 and do not include ground water. As a point of clarifica tion, groundwater itself is not a WOUS. But, for example, perennial streams are fed by groundw ater and the perennial streams are WOUS (presuming flow into a traditional navigable wa ter eventually). So, a quarry fed by groundwater could be a WOUS if it has a sign ificant nexus to a traditional na vigable water. A quarry that is truly isolated with no conn ection to a nearby tributary, would unlikely be a WOUS).

Public Water Systems Commenters also addressed how water from pub lic water systems is addressed under the rule. Some commenters stated that EPA should define and clarif y the public water system (PWS) exception so that ownership and maintenance of pumps and related equipment at an intake owned and operated by a PWS does not negate the exception (clarify how the rule would apply where an intake is not owned by the facility but the pumping system is, and cooling water and other water is both used and shared with other entities). Some commenters asked that EPA not limit the definition of PWS to serving residentia l customers. They suggested that EPA define PWS as a public or quasi-public entity that provi des water to the public or a subset of the public (not limited to residences). These comment ers observed that there are many independent suppliers of water to manufacturers that do not s upply potable water (multiple uses) and that this is not done to avoid regulati on. Other commenters made a sim ilar point in that PWS should include supplying water for purposes beyond drin king (e.g., irrigation canals). Some commenters asked whether EPA intends to use the SDWA definition of PWS.

Under § 125.91(c) and § 125.92 (definition of cooling water) the rule refers to PWSs. The term PWS is defined under the SDWA regulations and generally refers to drinking water systems of a certain size (see 40 CFR 142.2). EPA references PWSs in the above-ref erenced provisions because these are established terms and reflect po tential reuse of PWS-de rived water for cooling. EPA notes that the CWIS is defined as incl uding the pumps. However, the split-ownership example is not sufficiently detailed to addre ss here. The application of the rule in the commenter’s example would have to be determ ined by the Director. Subsections 125.91(c) and 125.92 address the reuse of cooling water before or after manufacturing, so there is no need to expand the definition of PWS under this rule to in clude entities that provi de non-potable water to

Essay 14 53manufacturers. Systems used to supply irriga tion water only are not PW Ss. Such systems could potentially constitute an independent supplier.

Commenters also raised several additional poin ts. Some commenters i ndicated that § 125.91(c) exempts CWIS where once-through treated effluent is used for makeup water. Some asserted that only intakes on the same source waterbody should be counted together to determine if a facility meets the flow threshold, since impacts are wate rbody-specific. Some commenters observed that the rule may promote use of groundwater for cooli ng, which conflicts with Louisiana’s efforts to use groundwater for potable water. Commenters al so sought clarification about the status of treated WWTP effluent that is not de-chlorinated.

One commenter suggested that EPA should prohib it use of freshwater fo r once-through cooling and should define BTA to require use of reclaimed water since such reuse is a proven beneficial technology, reclaimed water is wide ly available at once-through f acilities, EPA’s concerns about reclaimed water availability are unsupported and unw arranted, and the use of reclaimed water at closed-cycle facilities addresses consumption issues. At a minimum, the comment suggested that the rule could create a prefer ence for reclaimed water similar to a California program. Other commenters pointed out that a su fficient quantity of water that can be recycled may not be available, and that recycling should not be ma ndated but should be dr iven by local economics.

Finally, some commenters suggested that EPA should provide flexibility to use BPJ when permitting shared intakes used by co-located entities. Commenters asserted co-located entities were not addressed by the proposed rule.

Subsection 125.91(c) in part provides that the use of treated proce ss wastewater effluent is not considered cooling water for purposes of determini ng whether a facility is subject to this rule. However, under this provision the CWIS is not ex empt as indicated in the comment; rather, the water used for cooling is not considered c ooling water for purposes of determining the applicability of the rule. With regard to the asse rtion that the applicabil ity threshold should be applied on a waterbody-specific basis, EPA disagrees . EPA maintains that th e threshold reflects a level of adverse impact and it is important to have a single, cons istent threshold for applicability of the ru le. Establishing waterbody-specific th resholds would introduce a further measure of complexity that is not necessary. In addition, such an appr oach could result in a facility with multiple intakes wh ere each intake is located ina different waterbody, or through creation of multiple smaller intake s in lieu of one single intake.

The final rule is not intended to, and does not promote the use of, groundwater for cooling. Rather the EPA recognizes that, in particular ci rcumstances, there may be different sources of cooling water, and this rule pres erves the flexibility of existing f acilities to avail themselves of difference sources for cooling water while providi ng incentives for use of certain forms of water reuse. States can and are in a better position to promote the use and pr otection of groundwater

resources.
As discussed in the preamble to the final rule , EPA has not adopted closed-cycle recirculating (including dry cooling) as BTA entrainment sta ndard on a national basis. EPA has determined closed-cycle is not BTA on a national basis for the reasons specified in section VI of the preamble. Moreover, the availabil ity or non-availability of recl aimed water is not one of the

Essay 14 54factors EPA concluded was a determining factor in its decision not to establish a national standard for entrainment based on closed-cycle re circulating systems. Even if sufficient volumes of reclaimed water were available, and the recl aimed water meets the quality of water needed by facilities for cooling, closed-cycle is still not BTA on a national ba sis. Therefore, EPA disagrees that it is a feasible option for BTA for entrai nment based on a prohibition on the use of surface water withdrawals for once-through cooling and rely solely on r eclaimed water. Some facilities that need cooling water are not located near a source of reclaime d water, or the source may be insufficient quantity or qualit y for use as cooling water.

EPA agrees that the use of reclaimed water for cooling should be enc ouraged. This rule is structured to allow and promote the use of a lternative sources. EPA acknowledges that in some geographical areas a sufficient surface water supply may not always be available (e.g., see record for examples of recent facilities using ground wate r, dry cooling, etc.) and alternatives must be used. With regard to a preference for reclaimed water, this rule includ es provisions (§ 125.91(c) and § 125.92 (definition of cooling water)) that may reduce the applicability of the rule based on the use of reclaimed, reused, or recycled water. EP A maintains that this is a significant incentive to use such sources of water. In addition, water reuse must be considered as on element under the rules permit application requirements for large fl ow facilities. Additional water reuse can be achieved by existing facilities, and this rule promotes such reus e. Thus, the use of reclaimed water should be considered, particularly in stat es or regions that have limited surface waters and/or a preference for the use of reclaimed wa ter. However, based on present cooling water demand, EPA disagrees that sufficient quantities of reclaimed wate r exist that can be recycled to satisfy the demand of all existing facilities subject to 316(b). As discussed above, even if such quantity and quality of reclaimed water was avai lable, it would not change EPA’s basis for determining closed-cycle is not BTA. See also the discussion of recl aimed water in Essay 18.

Waters of the United States Some commenters addressed the criterion of withdrawing cooli ng water from a water of the United States. Some indicated that EPA should explicitly state that the withdrawal of water from discharge canals, impoundments, quarries, municipal water, wells, and other waters that are not waters of the United States do not result in the use of a CWIS and are th erefore not subject to rule. Other commenters observed that EPA’s relia nce on waters of the United States guidance is not appropriate since there are multiple guidance documents, such guidance often changes over time, and EPA has not provided sufficient no tice of this approach and the guidance.

As explained in the preamble, the final rule a pplies only to withdrawals of cooling water from waters of the United States. This rule does not define, alter, or in any way change what constitutes a waters of the United States. The determ ination of what is and what is not a water of the United States is a site-specific determinati on that will be made based on applicable law, regulations, and legal decisions, as well as relevant guidance. This rule uses the term “waters of the United States” and that term is defined in EPA regulations (40 CFR 122.2). Any guidance that is used to help determine what is a water of the United States is based on the applicable law and regulations.

Essay 14 55Independent Supplier Comments addressed the indepe ndent supplier provision in the proposed rule as well. Some commenters explicitly supported th e applicability of the rule to independent suppliers. Some commenters suggested that EPA gr andfather the use of independent suppliers since a facility lacks control of its water supplier and for a facility to avoid use of the supplier the facility would have to build a costly new intake. Other comm enters stated that the implementation timing should be based on the independent suppliers permit renewal schedule.

Some commenters argued that EP A should exclude CWISs operated by independent suppliers. They asserted that a facility may not have auth ority over or access to an independent suppliers CWIS and therefore cannot control the independ ent supplier. Only facilities that own and operated CWIS should be subject to the rule. Commenters asserted that EPA cannot regulate a third party supplier through a NPDES permit fo r a 316(b) facility. Some commenters sought clarification for when an indepe ndent supplier does not meet a pplicability crit eria (e.g., has NPDES permit but itself uses less than 2 mgd).

Some commenters argued th at EPA should regulate PWSs, or exclude independent suppliers, for logical consistency. These commenters stated that PWSs cause AEI too. Other commenters observed that to achieve consistency, the defini tion of independent supplier should exclude PWS. Some argued that because PWSs cause AEI they should not be excluded.

As explained in the final rule, EPA included the independent supplier provision to prevent existing facilities from attempting to circumvent the rule by creating arrangements to receive cooling water from an entity that is not itself a facility subject to Part 125 subparts I or J. The 316(b) standards for new facilities include a similar provision. The final rule does not grandfather independent suppliers and EPA does not agree that this provision requires existing facilities to build new intakes. Ra ther, existing facilities should ensure that independent suppliers meet applicable permit requirements including re quirements applicable to in-scope CWISs. Similarly, the timing of the rule is based on the pe rmit issued or held by th e existing facility, not the independent suppliers, since the rule focuses on water used for cooling at existing facilities. EPA recognizes that existing faci lities may not always control an independent supplier. The existing facility remains responsible for ensuring that any CWIS used by the facility, including a CWIS operated by an independent supplier, meets th e requirements of this rule as expressed in an NPDES permit. With regard to PWSs, EPA has concluded that it is not necessary to regulate PWSs or exclude independent suppliers unde r the rule. Although EP A recognizes the PWS intakes can cause adverse impacts, PWSs are not regulated under this rule because they do not withdraw water for cooling. Sect ion 316(b) requires EPA only to establish standards to address the intake of cooling water under 316(b). See pr evious discussion regard ing language of section 316(b). EPA allows the reuse of water from a PW S because such reuse reduces the overall need for additional water withdrawals that may be asso ciated with adverse environmental impacts. In contrast, EPA has addressed the situation in wh ich a facility obtains cooling water from an independent supplier under the rule because EPA does not want existing facilities to circumvent the rule by obtaining cooling wate r from another entity that is not subject to 316(b) requirements and that does withdraw cooling water. EPA has added language to the independent supplier definition that excludes PWSs from requirements a pplicable to cooling water intake structures. Further, the existing facility must meet the applicability criter ia, not the independent supplier (assuming such supplier is not independently subj ect to 316(b) requirements). Thus, in the case

Essay 14 56of an independent supplier wit hdrawing more than 2 mgd for us e by the existing facility then, assuming all other applicability cr iteria are met, the existing faci lity would be subject to 316(b) requirements under today’s rule. If the independ ent supplier withdraws less than 2 mgd,), the permit writer will establish requirements for the faci lity using water from the third party supplier on a case-by-case (BPJ) basis.

Impoundments/Definition of CCRS Commenters provided a range of comments regardi ng the definition of closed-cycle recirculating systems (CCRSs) and the use of impoundments. Some commenters requested that EPA clarify whether a cooling pond is a CCRS and the point of compliance for fac ilities that rely on impoundments for some or all of their cooling wa ter. Other comments sought to clarify how the rule applies to a cooli ng pond with two sets of intake pumps (river to pond; pond to facility). Commenters also asked whether auxiliary in takes used during drought for makeup water are subject to the rule. Comments regarding point of compliance are discussed above in this essay. Comments specifically regarding impoundments are discussed below.

Closed

‐ Cycle Cooling Definition is Too Narrow Some comments argued that the prop osed rule definition of a closed -cycle recirculating system is too narrow, thereby excluding many ponds and ba sins built for cooling. These commenters observed that the definition should allow for other uses of makeup water beyond “blowdown, drift and evaporation”, such as water stored in impoundments. In addition, it should clearly allow other uses, including service water, emergency b ack-up and fire protection, facility maintenance and sanitary uses (also scr een washing, air preheater wa shing, boiler makeup, wetlands rehydration). Some suggested that the EPA should clarify that th e withdrawal of small amounts of service water is allowable.

Comments also addressed whethe r a closed-cycle system can be a water of the United States. Some commenters stated that a pond or reser voir should not be excluded from being a CCRS based on their classification as a water of the United States. Rather, commenters assert the definition should be broad and in clude impoundments and reservoirs regardless of their status as a water of the United States. Commenters argued th at the waters of the Un ited States restriction is unreasonable and likely to adversely affect public access to privately owned waters. Others argued that man-made lakes built to cool power stations do not c onstitute waters of the United States. Some commenters observed that convert ing impoundments built as closed-cycle cooling systems to open-cycle systems would increase costs and may constitute a taking under the Fifth Amendment. They noted that defining CCRS as excluding waters of the United States expands EPA jurisdiction over waters of the United St ates. Other commenters added that under EPA regulations water of the United States do not include “waste tr eatment systems” and EPA has recognized that the CWA does not require the app lication of technology-based requirements at the point of discharge into constructed waterway s designed to serve as waste treatment systems. They stated that impoundments ar e designed to treat heat (a po llutant) as part of the NPDES system and that impoundments are waste treatment systems that are excluded from the definition of water of the United States. Some commenters maintained that EPA should state that the jurisdictional status of impoundments will not be reopened. Other similarly argued that impoundments that were not themselves waters of the United States when they were built should

Essay 14 57be defined as CCRS. Some went so far as to su ggest that EPA require no controls for existing reservoirs constructed by pow er generators for cooling.

EPA does not agree that the definition of closed -cycle recirculating sy stem (CCRS) is unduly narrow. The final rule definition includes impoundments that are not waters of the United States. This definition does not impose additional requ irements on such impoundments; rather it acknowledges that the use of such impoundments as a properly operated closed-cycle system is deemed to meet certain requirements of the rule. Although the defini tion requires makeup be minimized and provides for the replacement of wate r lost due to evaporati on, the final rule also allows for such systems to replace other water losses provided the facility demonstrates to the satisfaction of the Director that makeup water wit hdrawals attributed specifically to the cooling portion of the cooling system have been minimized. EPA acknowledges water may be used for purposes other than for cooling, and distinguis hes between makeup water for cooling and water for other purposes. These provisions accommodate reasonable other uses of such ponds and basins, including secondary uses associated with facility support. See the final definition of CCRS.

EPA is aware of the language a ddressing waste treatment systems at the end of the definition of waters of the United States (40 CFR 122.2), in cluding the fact that the definition of impoundments referenced no longer exists in sec tion 423, and that the limitation of the exclusion to man-made bodies of water not created in a wate rs of the United States or resulting from the impoundment of a waters of the United States was suspended in 1980 (see note at end of § 122.2). Given the mandates of the CWA to protect jurisdictional waters, EPA does not view the waste treatment exclusion as applying to impou ndments that otherwise meet the definition of waters of the United States. This determination will continue to be made on a case-by-case basis.

The definition of CCRS in the fi nal rule includes impoundments that are not waters of the United States. A CCRS cannot include waters of the United States because protection of waters of the United States from adverse environmental impacts is the endpoint of the standards required by section 316(b). Under section 316(b), EPA must establishment requir ements that ensure that the location, design, capacity and construction of CWIS s reflect the best t echnology available to minimize adverse environmental impacts to waters of the United States. EPA has previously noted that, for purposes of section 316(b), the determ ination of what is and what is not a water of the United States is a case-by-case determinati on. EPA notes that whethe r or not a waterbody is man-made is not, in and of itself, a determinative factor in the definition of waters of the United States (e.g., the definition include s impoundments of waters otherwis e defined as waters of the United States).

The EPA finds that many comments interchange the terms cooling pond and cooling lake, and for purposes of this essay EPA is not disti nguishing between the two. A cooling pond is an impoundment used either in lieu of a cooling to wer or as a supplement to a cooling tower to remove waste heat from the plant. Many power plants also use impoundments to reduce the temperature of the cooling water exiting the plant before it is discharged back into a receiving waterbody. The pond dissipates waste heat through the surface of the pond, resulting in some evaporative losses. Therefore, a cooling pond re quires additional makeup water from another source. EPA’s record shows the ma keup water is frequently obtained from a water of the U.S.

Essay 14 58(46 power plants and 34 manufactur ers withdraw from a water of the U.S. as makeup water for a pond).

The EPA is not determining which ponds are waters of the U.S. in this rule. In the final rule, EPA assumed approximately 60 facilities with impoundments would meet the definition of CCRS, and therefore did not assi gn technology costs to these f acilities. An additional 40 facilities use more than one cooling water syst em, and these facilities were assigned compliance technology costs. As a sensitivity analysis, EPA assigned all ponds with compliance technology costs. EPA notes these costs are a small portion of the total national ru le costs because CCRSs using ponds comprise approximately 2 percent of all f acilities (less than 7 percent of the 31 percent of existing facilities that currently use CCRSs, noting coo ling towers comprise the other remaining 24 percent). See the memo to record entitled “Social Costs for Final Rule and Other Options Considered with and without Impoundments Provision” fo r more details.

EPA does not agree that this aspect of the rule constitutes a taking. The final rule does not result in taking any property from a facility for public use. Whether an impoundment is a CCRS, as well as whether the impoundment is a water of the U.S., does not affect whether a facility chooses to provide public access and use of that impoundment.

EPA does not agree that the definition of CCRS expands EPA’s jurisdiction over waters of the U.S. To the extent that some facilities have not tr eated certain impoundments as waters of the United States that are now subject to requirements as does not repr esent a change in or extension of the Agency’s jurisdic tion under section 316(b).Th e determination of what requirements of this rule apply at a particular fac ility will be decided by a permit writer. In that proceeding, the permit writer may have to address whether use by a particular facility of an impoundment as part of its CCRS reflect use of waters of the U.S. or not.

Man

‐ Made/Managed Impoundments Numerous comments addressed man-made impoundments and impoundments. Several commenters maintained that the rule does not adequately addre ss unique waterbodies resulting from man-made reservoirs built for use as c ooling water impoundments. They argued that these waters are not comparable to natural lakes and reservoirs and that the rule applies excessive protection, considering the highly managed natu re of these impoundments. Some commenters suggested that the rule should ex empt man-made lakes. Others suggested the rule should allow for BPJ and/or flexibility for such impoundments. For example, commenters observed that Texas has 33 reservoirs created for c ooling which are different than natural waterbodies although they are managed to serve multiple functions. They not ed that some impoundments in Texas circulate their entire contents in 7-32 days and stil l maintain vibrant aquatic ecosystems. Some commenters stated that most ponds built for power pl ants in Texas meet the functional definition of CCRS but not the actual definition due to their status as wate rs of the United States. They asserted that EPA should identify these as prov iding BTA cooling water use or otherwise allow for their continued use. Commen ters asserted that man-made off channel impoundments in Texas have created fishing resources a nd continue to function effectiv ely despite use for cooling for many years. They also indicated that Texas da ta for inland facilities from 2005 to 2008 indicate that over 85 percent of impinged fi sh are threadfin shad (a stocked forage fish). Commenters stated that for this species, the proposed impingement rates would be unachievable. Some

Essay 14 59asserted that any AEI should be balanced ag ainst the biological communities created in many cooling impoundments. Others ar gued that the rule would regul ate man-made waterbodies with very limited ecosystems that are inaccessible to th e public and such regulation is of no benefit to the public. Additional flexibility (impingement and entrainment requirements, cost/ benefit) should be provided where a cooling pond is opera ted as a managed fishery. Impingement and entrainment standards should not be imposed on CWISs located on freshwater lakes with state managed fisheries.

EPA is aware that man-made impoundment s and impoundments exist and that these impoundments vary in size and characteristics, with some managed for multiple uses (i.e., cooling and recreation). As discussed above, the CWA focuses on the protect ion of waters of the United States and, as a result, the definition of clos ed-cycle recirculating system in the rule does not include impoundments that are waters of the United States. The rule does not exempt manmade impoundments if such ponds meet the defin ition of waters of the United States. Nor does this rule alter the definition of waters of the United States.

EPA agrees that artificially managed reservoirs may be different than natural lakes, therefore, EPA has discussed in the preamble and provided in the final rule that the Director may waive some or all of the information requirements of 40 CFR 122.21(r) if the intake of concern is located in a manmade lake or re servoir, and the fisheries are st ocked and managed by a State or Federal natural resources agency or the equiva lent. Although this provision does not relieve any facility of the requirement to comply with th e BTA standards of the rule, it does provide the Director with the ability in cer tain cases (e.g., where the biologi cal characterization of the source water is significantly influen ced by the actions of the natural resources agency) to reduce information required for the f acility’s permit application. EP A notes that the impingement mortality and entrainment requirements of th e rule provide flexibility through compliance alternatives and site-specific entrainment determ inations. Directors may use this flexibility to address man-made impoundments. For example, with regard to the impingement data from Texas, the rule includes six impingement complian ce alternatives other than meeting the numeric mortality performance standard (e .g., a facility could meet the th rough-screen velocity or install any combination of technologies that the perm it writer determines achieve a BTA impingement mortality performance for the site).

EPA disagrees that facilities on man-made or mana ged fresh water lakes a nd reservoirs could not meet the IM performance standard. The final rule replaces the species of concern approach from the proposed rule with a more precise and transp arent definition for fragile species. Further, EPA has dropped the monthly limit from the final rule , and replaced the annual requirement with a 12­ month percent survival. Requirement s for threadfin shad (a fragile species) would be determined by the Director. As discussed above, the Director may reduce permit application studies and requirements where the freshwater lake/reservo ir is managed by a state resource management agency. The final rule provision allows the Director to consider the value of biological studies of artificially managed ecosystems, particularly where the biological st udy is made obsolete by restocking of select fisheries. With respect to entrainment, the Director already will make a determination of BTA as discussed further below.

With regard to setting BTA based on balancing AE I with the recreational benefits of man-made reservoirs, such an approach is not consistent with section 316(b), which mandates that EPA

Essay 14 60establish standards representing the best technol ogy to minimize AEI. However, under the final rule, the BTA standard for entrainment requires determination of site-specific entrainment controls in a structured proceeding that must ta ke into account a number of factors including the costs and benefits of different approaches to entrainment reduc tion. Thus, certain benefits (e.g., benefits to recreational species, benefits to the environmental local commun ities) associated with entrainment reduction technologies and operational measures may be considered by the Director as a elements in evaluating BTA for entrainment. The final rule provides that the Director in evaluating available entrainment technologies ma y consider other rele vant factors including social benefits under § 125.98(f)(4). In some circ umstances, these benefits may be identified as part of the benefits valuation st udy required as part of the permit application for certain facilities at 40 CFR 122.21(r)(11). Where an impoundment is inaccessible, it is unclear whether such a waterbody would meet the definition of a water of the United States.

Intermittent Flow in a Closed

‐ Cycle Recirculating System Comments also addressed the intermittent flow provision in the definition of closed-cycle recirculating system. Some commenters assert ed that a prohibition against any level of continuous flow is unreasonable. Commenters argued that some ponds withdraw a continuous flow because this protects the source waterbody. Commenters argued that there is no reason why a closed-cycle recirculating system has to have an intermittent flow of makeup water, but there are reasons why a consistent flow may be de sirable. Commenters noted that limiting makeup water to replenishment of certain losses w ill interfere with common power plant practices.

The commenter appears to misunderstand the rule definition. The definition of closed-cycle recirculating system does not requ ire an intermittent flow in the final rule. In addition, the final definition provides flexibility so that replen ishment can extend to lo sses beyond blowdown, drift or evaporation in specified circumstances. Such replenishment is not prohi bited by the final rule. Under the final rule, in evaluating whether a particular cooling wate r intake structur e represents a CCRS, the Director will determine whether such withdraws are for cooling purposes and thus are attributable to a determination that the withdrawals constitute minimized makeup.

Additional Suggestions on Requirements for Closed

‐ Cycle Recirculating Systems Comments included numerous sugg estions regarding requirements for closed-cycle systems. EPA notes that these suggestions assume that all impoundments comprise a closed-cycle system, a position with which EPA does not agree. Some commenters indicated that EPA should create reasonable presumptions that provide certainty for facilities that us e impoundments. Some asserted that a cooling pond that functions as a closed-cycle recirculating system (water use reduced by 96.6 percent) should not be required to do more since any benefits do not justify the costs. Similarly commenters maintained that no additional controls should be required for facilities with constructed cooling reservoirs that use/are closed-c ycle recirculating system since these are BTA. Commenters also asserted that EPA should excl ude regulation of intakes in dedicated impoundments or allow for site-spe cific determination by permitting authority.

Some commenters asserted that EPA should eliminate the entrainm ent requirements if a cooling pond has a retention time of 7 days or more. Othe rs suggested that the regulation of intakes for makeup water should be left to the states that ar e familiar with local water issues. Finally, some

Essay 14 61asked whether blowdown was intended to addr ess overfilling a pond to reduce TDS and, if not, suggested that EPA mo dify the definition to include such an operational control.

EPA has made it clear that a facili ty that uses a closed-cycle reci rculating system, as defined in the rule, would meet the rule requirements for impingement mortality at § 125.94(c)(1). This rule language specifically iden tifies closed-cycle as a compliance alternative for the IM performance standards. EPA expects the Director would conclude that such a f acility would not be subject to additional entrainment controls to meet BTA.

EPA disagrees that impoundments with a specifi ed retention time should be exempt from entrainment requirements. The commenter did not provide any data suppor ting the suggestion of 7 days retention time. The retention time is the volume of the aeration tank divided by the influent flow rate. Thus even a 100 million ga llon pond would still withdraw 14 mgd. The rule does not categorically exclude from entrainmen t requirements a facility with an impoundment has a retention time of 7 days or more, requiring that the Director address entrainment by a sitespecific assessment of entrainment impacts. In this assessment, the Director may potentially consider retention time to the extent rete ntion time affects entrainment impacts.

With regard to makeup water, such withdrawal s can be significant. U.S. Energy Information Administration (EIA) data for 2010 shows 110 power plants (12 percent of all plants) use impoundments (U.S. DOE, 2012). About 50 of these plants operated in once through mode and 60 used a closed-cycle mode. EPA also found in site visits that facilities with wet cooling towers did not operate the towers to minimize the withdr awal of makeup water. Therefore, in order for any given closed-cycle system to quality as a “closed-cycle recirculating system,” the final rule requires that the Director determine whether an y specific impoundment, coo ling tower, or other closed-cycle recirculating system, is properly op erated and thus meets the definition of a CCRS under the rule. In addition, the stat es retain the ability to addr ess local water issues. Finally, blowdown is included in the defi nition of a closed-cycle recirc ulating system to reflect the efficient use of cooling towers as part of the recirculating cooling system. EPA notes that the definition of a closed-cycle recirculating system in the preamble provides examples of proper operation, including flow reduction observed at powe r plants with well-operated cooling towers, as well as levels of the cycle of concentra tion found at manufacturi ng facilities with welloperated towers. These parameters generally represent minimized makeup and blowdown, with slightly different values for fresh a nd salt water sources of makeup water.

Flow Thresholds

Two MGD Applicability Threshold

Approach Some commenters questioned EPA’s approach in determining the a pplicability of the rule. Some commenters indicated that facili ties below the 2 mgd threshold should not be subject to any requirements or, alternatively, EPA should use a presumption of no requirements if below this threshold except for exceptional ci rcumstances. Some suggested that if a facility is below 2 mgd, EPA should allow states to determine that no im pingement mortality or entrainment mortality controls are needed. Some argued that fo r otherwise exempt CWISs, only BPJ-based requirements should apply when AEI is eviden t or highly likely. On the other hand, comments

Essay 14 62on behalf of a large umbrella group of envi ronmental organizations supported the 2 mgd threshold because these facilities cause AEI a nd 2 mgd is consistent with Phase I. This commenter further suggested that if small facilit ies warranted different requirements, then the EPA should develop them rather than rely on esta blishment of BPJ controls for these facilities. Some commenters stated th at 316(b) requires adverse impact a nd, lacking data for facilities with flow under 100 mgd, EPA has no authority to appl y the rule to facili ties with what the commenter’s viewed as de minimis impacts. So me commenters suggested that EPA should use a presumption that AIF of 125 mgd or below refl ects BTA and that further reductions do not justify the costs. Commenters also suggested that closed-cycle fac ilities should not be subject to additional requirements, and that EPA shoul d also exempt short term withdrawals.

Facilities that withdraw 2 mgd or less are not subject to th e national uniform standards for impingement and entrainment of this rule but, pursuant to this rule a nd section 316(b) of the CWA, remain subject to section 316(b) requi rements determined on a case-by-case, best professional judgment, basis. The commenters di d not provide any data showing any facilities smaller than 2 mgd have zero levels of impinge ment and entrainment. Therefore there is no record basis upon which to conclude that there is no potential fo r adverse environmental impact. Accordingly, EPA disagrees that any facili ties should be exempt from section 316(b).

The use of BPJ is a standard approach for determining technology-based requirements under the NPDES program in the absence of national standa rds. Such case-by case determinations allow any requirements to reflect the impacts associat ed with a facility and the CWIS technologies available. EPA has established in the record for this rule and prior 316(b) rules that CWISs result in a range of adverse environmental impacts including impingement and entrainment. The Second Circuit has found both EPA’s approach to AE I and EPA’s use of BPJ similar to this rule to be reasonable (e.g., See, Riverkeeper, Inc. v EPA , 358 F.3d 174 (2 nd Cir. 2004)).

EPA does not agree that all facilities below 100 mgd have de minimis impacts and can be excluded from the rule. Commente rs did not provide any data s howing any facilities with zero levels of impingement and entrainment. EPA fu rther notes the commente r has provided no data to support the assertion that any le vels of impingement and entrainment at such facilities have de minimis impacts. The record for this proceed ing shows that there are identified studies impingement mortality and entrainment impacts a ssociated with facilities, including those under 100 mgd. EPA’s record indicates th at the use of CWISs result in a range of adverse impacts including impingement and entrainment and that these impacts can and do occur at a range of flows based on a variety of f actors (location, waterbody type, CWIS design, CWIS technology, seasonal factors, etc.). Thus, for the reasons di scussed in the preamble, EPA has maintained the applicability threshold at great er than 2 mgd DIF. To addre ss the range of impacts posed by different size and types of facilities subject to section 316(b) EPA has included considerable flexibility in the rule.

EPA has explained in the preamble why the rule us es greater than 2 mgd DI F as the applicability threshold as opposed to using an alternative such as AIF of 125 mgd. As indicated in the preamble, the threshold in the final rule ensures that the users of cooling water causing the most adverse environmental impact will be subject to the rule.

Essay 14 63Under this rule, and as discussed above, EPA expects that facilities with properly operated closed-cycle recirculating systems generally will not be subject to addi tional impingement and entrainment requirements.

As for short term withdrawals, the final rule does not exempt short term withdrawals. The 2 mgd threshold for the design intake flow shows that the facility has the potential for significant withdrawals. Therefore facilities designed above this design threshold and use at least 25 percent of the water withdrawn for cooli ng are subject to the final rule requirements. The rule addresses short term withdrawals and intermittent withdr aws by a compliance alternative at § 125.94(c)(6) that allows a facility to demonstrate credit for flow reductions.

Certain commenters argued that including small systems and applying one set of requirements tailored to large systems to all systems will over-regulate small systems and impose undue burdens for limited environmental gain. These co mmenters disagreed with a one size fits all approach and suggested that EPA should set different categories of applicability that reflect potential impacts.

EPA disagrees that 2 mgd is a small facility. For perspective, it would take four typical Olympic size swimming pools to provide two million gall ons. EPA has addressed the concern over uniform requirements in the rule through flexible requireme nts including seven compliance alternatives, rather than the applicability provisions of the rule. The final rule’s multiple compliance alternatives (includi ng use of a system of technologi es) for addressing impingement mortality, and further provides for site-specifi c determination of requirements for addressing entrainment (for other than new units). These provisions, which reflect the data evaluated by EPA, do not mandate one set of re quirements for all facilities a nd are capable of reflecting the setting and the impacts posed by different facilities.

Some commenters asserted that limited use emergency or special circumstance intakes should not be subject to regulation because costs vas tly outweigh benefits. Commenters noted that secondary sources of makeup water used not more than 30 days per year should be exempt. They also suggested that emergency flows should not be considered in determining applicability (e.g., 2 mgd).

The commenter did not provide da ta or identify special circumstance intakes. However, the commenter appears to be confused by the definiti ons in the rule. The defi nition of Design Intake Flow does not include emergency purposes, fire suppression, and back up pumps (redundant pumps). Intermittently used intakes are discus sed above. The commenter did not provide data showing why secondary sources of makeup water should be exempt. As noted above, there is no record showing zero levels of impingement and entrainment. Thus there is the potential for adverse environmental impact, a nd EPA disagrees that second ary sources of makeup water should be exempt.

In the final rule EPA has provided that DIF does not include values asso ciated with emergency and fire suppression capacity or redu ndant pumps (i.e., back-up pumps).

One state (LA) indicated that it has ample surface water and comme nted that the proposed rule does not promote the use of surface water. EPA agrees with the comment. As noted above, there

Essay 14 64is no record showing zero levels of impingement and entrainm ent. Thus there is the potential for adverse environmental impact, and EPA disagrees that surface water use should be promoted.

AIF as Metric for Threshold Several commenters supported the use of AIF in determining applic ability of the rule. Commenters stated that AIF should be used for the applicability thres hold since AIF correlates with environmental impact. Commenters indica ted that the use of DIF is unduly burdensome (i.e., costly, with disproportionate impact) for smaller facilities with minimal flows and has limited impact since the use of DIF will apply the same requirements to large and small facilities.

Commenters also pointed out that DIF penalizes facilities that have installed more efficient units or modifications that require less water, wher eas, AIF promotes conser vation. Commenters also indicated that DIF may be difficult to determin e for existing and older facilities and may be significantly greater than the current AIF due to changes over time, particularly in manufacturing processes. Some maintained that applicab ility DIF should focus on current operation and capabilities, not original desi gn or special circumstances. EPA could determine AIF based on flow data (based on one or a few flow monitors) and this approach provides more clarity since existing facilities are likely have many years of flow data. DIF may result in inconsistency because of different methods for determining DI F (i.e., DIF is difficult to determine). Some commenters asserted that it is inconsistent to base impingement mortality on DIF and entrainment mortality on AIF. Some commenters suggested that EPA use AIF that corresponds to 50 mgd DIF. Some argued that AIF encourages conservation and added that if DIF is used EPA should allow an estimate to be based on empirical data.

EPA has used DIF in the applicability threshold fo r the reasons stated in the preamble to the final rule. This approach was also adopted in the Phas e I and Phase II rules. DIF reflects a reasonably well-defined criterion that does not vary widely over time and th at reflects the potential for adverse environmental impacts. AIF can vary signif icantly over time and therefore is not ideal for determining rule applicability. Even if EPA had used AIF, it does not necessarily follow that EPA would have developed tiered levels of requirements based on different AIF thresholds. EPA disagrees with the comment that DIF is more burdensome than AIF; DIF is a fixed parameter that need be determined only once for purposes of rule applicability, whereas AIF must be frequently measured and reassessed. EPA’s use of AI F in some parts of the rule may result in an incentive for some facilities to withdraw less cooling water, and EPA encourages such an outcome. Further, the final rule includes incentives for water reuse in lieu of water withdrawal.

To address comments concerning original DIF or a design basis that is outd ated, in the final rule EPA has provided an opportunity in described circ umstances for a facility to use an adjusted DIF. The revised DIF would reflect permanent changes to the maximu m capabilities of the cooling water intake system to withdraw cooling water. This allows facilities that have made such changes credit for their actions. These circumstances may include removal of pumps permanently from service, flow limit devices (installed devices th at act to restri ct flow below design flows), and physical limitatio ns on intake flow that result from piping restrictions. With regard to the ability to determine DIF, EPA ma intains that existing fa cilities will have the information needed to determine the appropriate DIF. If changes have occurred, appropriate adjustments, as described above, can be made in that determination. The final rule requires the

Essay 14 65development of detailed information on entrainmen t in the permit applicat ion for facilities above the 125 m gd AIF threshold. The use of AIF rather than DIF is appropriate for this requirement because, as EPA has consistently indicated, entr ainment impacts are generally correlated with intake flow. Further, in the final rule EPA has defined AIF as the average flow including a facility’s days of zero flow.

DIF as Metric for Threshold Other commenters supported the us e of DIF in the applicabilit y threshold for the rule or supported the use of DIF as the m aximum volum e of water a facility can withdraw. Some commenters suggested that EPA clarify the defin ition of DIF to allow for limiting flow in the NPDES permit. Still others supported the use of DIF for applicability and AIF for entrainment study required in the ap plication requirements for 316(b) NPDES permits.

Some commenters suggested that the use of DIF for applicab ility should consider legally enforceable limitations on flow, including permit conditions. They asserted that this (activity constraints) is done under the Clean Air Act’s Prevention of Significant (CAA/ PSD) program and creates an incentive to vol untarily reduce flows. These co mmenters suggested that EPA change the DIF definition to allow enforceable limits or legal controls on AIF (and make the rule not applicable if below 2 mgd). Other commenters asserted that DIF really should be “maximum intake flow” or “intake flow capacity” and should reflect all physical, st ructural, operational and engineering characteristics of th e facility’s cooling water system , as well as any legally binding limits on water withdrawal, use or discharge.

Some suggested that EPA give credit to a facili ty for operating below its DIF. Some comments went on to suggest that EPA defi ne DIF so as to not penalize f acilities for having more capacity than is needed or used based on good engineering practice. Others commented that use of DIF is acceptable provided facilities do not get credit for fictional flow reductions. Some suggested that the DIF should reflect the maxi mum amount of water that can be withdrawn by the plant. Some commenters suggested that EPA cl arify whether there is a difference between a unit closure and a unit retirement, and whether a pump permanently removed from service is flow reduction or warrants an adjustment in the DI F. Some commenters suggested th at, with regard to the 2 mgd applicability threshold, EPA must speci fy the timeframe for measuring DIF.

As discussed on the preamble, EPA has used “design intake flow” because it is an established and reasonably consistent metric that reflects the potential for AEI. EPA based its threshold for applicability of both the Phase I and development of the Phase II and Phase III rules on DIF. EPA has used the term DIF because it is a commonly used te rm with a clear mean ing. The DIF does not need additional time frames because a permit is applicable for at most 5 years, and there is no evidence suggesting cooli ng water intakes are modifi ed as frequently. The fi nal rule’s definition of DIF has been implemented for over 10 years and is understandable. This definition addresses those factors that affect the maximum rate of flow the facility is p hysically capable of withdrawing.

The final rule does provide that a 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 pumps permanently removed from servi ce, flow limit devices, and physical limitations of the piping. Consistent with th is provision, any closure or reti rement would have to result in

Essay 14 66permanent changes to a facility’s DIF for it to warrant credit. DIF flow information must be subm itted as part of permitting and this information, and the ability to obtain additional information, should prevent credit for fictiona l flow reductions. Fina lly, together the DIF definition and 2 mgd threshold sufficien tly specify the timeframe for DIF.

However, design intake flow as defined in this rule does not reflect legally enforceable limits on flow since such flows can change and EPA ha s some concern regard ing establishing permit limits that could unduly hinder f acility operations without a pe rmit reopening or renewal. For purposes of applicability, the rule does not provid e a credit to a facility for operating below its design capacity, because all facilities operate at an AIF below their DI F. EPA’s record shows facilities operate, on average, with an AIF of half of their DIF. This does not necessarily represent any reductions in fl ow, it merely describes the ope ration of a CIWS on an annual average basis. Credit for actual flow reductio ns is provided under the BTA requirements.

Basis for 2 MGD Threshold Comm enters challenged EPA’s basis for the 2 mgd threshold. Some commenters asked for additional justificati on for the 2 mgd threshold. Some commenters did not understand that today’s final rule considers both the Phase II and Phase III rules, instead commenting that this is a revised Phase II rule that covers more faciliti es than the 2004 Phase II rule. Some argued that studies from large power generati ng facilities cannot be used to justify the 2 mgd threshold for industrial facilities. Some argued that the 2 mgd DIF threshold is arbitrary because it fails to consider site-specific factors a nd different levels of impact. For example, some commenters argued that the threshold was arbitrarily too low b ecause it could affect a f acility that withdraws 0.000009 percent of Mississippi’s 7Q10. Others noted that the effective threshold is 0.5 mgd (25 percent of 2 mgd), so the rule would cover more than 99.7 percent of cooling water intake flow as asserted and maintained that this is not ju stified by any technical or scientific analysis.

Commenters argued that the 2 mgd threshold woul d impact many small facilities including small businesses and that small faciliti es should not be subject to all the controls required for larger facilities. Some commenters sugges ted that if the threshold is not 50 mgd, it should be 5 mgd at a minimum. Others suggested that if the thresh old is not 50 mgd DIF, then EPA should use AIF since AIF reflects impacts and the actual use of intake. Some suggested that EPA use an AIF threshold of 50 mgd, while some would limit this to impingement mortality only. Some commenters indicated that faci lities below 50 mgd should be addressed using BPJ, whereas others suggested that such facili ties should not be subject to the rule at all. Some argued that EPA should use 125 mgd to address 90 percent of cooling water flow and lower the cost of the rule. Some commenters indicated the basis fo r 125 mgd AIF monitoring and reporting threshold was unclear. Others noted that 2 mgd will captu re some facilities th at already have CCRS.

As previously discussed, all water withdraws fo r cooling water result in the potential for impingement and entrainment. The 2 mgd threshol d was chosen because this threshold addresses 99.7 percent of the total flow a nd 62 percent of all in-scope fa cilities. EPA estimates that 58 percent of the manufacturers, 70 percent of the non-util ities, and 100 percent of the utilities will be regulated at the 2 mgd threshold. The final rule uses greater than 2 mgd as one of the applicability criteria to be consistent with the Ph ase I rule, and to ensure that the largest users of cooling water are subject to the rule. Section 316 (b) of the CWA addresses cooling water intake

Essay 14 67structures generally, and EPA has examined the cooling water intake flow and the facilities captured in the context of the section 316(b) requirements. As EPA has discussed in the preamble and in this essay, CWIS technologies and the nature of associated impacts do not vary substantially between utility and industrial ap plications. Further, EPA agrees that adverse impacts can and do occur at various flows. Furthe r, the less than 50 mgd facilities are twice as likely now to have no controls in place for impinge ment or entrainment as are the greater than 50 mgd facilities. The EPA has structured this final rule to be broadly applicable and to address different facilities and physical settings within the rule.

EPA disagrees that low flow correlates to small business. Nothing about th e definition of small business includes cooling water withdraws. Furt her, there is no correlation between small businesses and facilities with the lowest flows. Fo r example, while there are 34 facilities that are small businesses and withdraw less than 10 mgd, there are another 35 faci lities that are small businesses and withdraw more th an 50 mgd. None of the commen ters alternative thresholds including 2 mgd, 10 mgd, 20 mgd, 25 mgd, and 50 mgd are supported by data, and EPA has no technical reason on which to base a different threshold. See EA for more information. EPA agrees that 2 mgd threshold will capture some facilities that already have CCRS. EPA’s record shows that most facilities are in the less than 50 mgd category b ecause they already have closedcycle cooling. According to EPA’s technical survey data from 2001, 51 percent of f acilities with DIF below 50 mgd have closed-cycle cooling, an d 33 percent of manufact urers with DIF below 50 mgd have closed-cycle cooling. See the TDD fo r more information. EPA notes the final rule streamlines the permit application proce ss for facilities with closed-cycle.

The EPA disagrees that power plant intakes ca nnot be compared to manufacturing intakes. Intakes at power plants and manuf acturers exist in a variety of sizes, use the same intake types and locations, and use the same technologies. At many manufacturing facili ties, cooling water is withdrawn primarily or exclusively for power production. These intakes f unctions exactly like a power plant intake. EPA finds th at there are no significant differe nces in CWIS or technologies between manufacturers and power ge nerators. The technologies are available and feasible for all intake structures. See TDD Chapter 4 for more information. With respect to environmental impacts, aquatic organisms cannot distinguish what is behind an intake; there is no difference to a fish whether the user of the cooling water behind the screen is a power plant or a paper mill. In many cases, power plant intakes a nd manufacturing facili ty intakes occur in close proximity on the same source waterbody; see EBA for more info rmation. Financial impacts of the final rule were considered separately for each industry; see the EA for more information.

EPA agrees that small withdrawal may pose a significant adverse environmental impact, both when the source waterbody has a low flow and wh en there are cumulative withdraws (multiple users) of the same reach of a source water body. At least 14 percent of manufacturers below 50 mgd withdraw more than 5 percen t of the mean annual flow of the fresh water sources on which they are located (based on unweighted data from surveyed facilities; actual number would be higher when all in-scope facility locations are co nsidered). Furthermore, facilities in aggregate may withdraw greater than 100 percent of the ri ver on which they are located. For example, all facilities combined on the upper reaches of the Monangahela River withdraw 526 percent of the mean annual flow of the river, and the f acilities on the lowe r reach withdraw an additional 474 percent of the mean annual flow. The record fu rther shows cumulative impa cts of facilities with DIF below 50 mgd are significant in most of the U.S.; see GIS mapping in the EBA. The

Essay 14 68analysis sho ws at leas t 54 percent of withdrawal s by just those facilities with DIF below 50 mgd are cumulative withdrawals, i.e., there are wit hdrawals by more than on e facility on the same river segment. For example, 5 known facilities w ith DIF below 50 mgd wit hdraw 45 percent of the mean annual flow of the Delaware River. Th e potential impacts are gr eater when facilities with large flow withdraws are included in the an alysis. For example, there are 8 known facilities with DIF below 50 mgd that withdraw 3 percent of the mean annual flow of the Columbia River. This increases to 8 percent of the river MAF when the large flow facilities (those greater than 50 mgd) are included. For all of these reasons, no facil ities in scope of the rule are exempt from IM or E requirements to minimize a dverse environmental impacts.

EPA does not agree that the intake flow threshold in the applicabilit y portion of this rule must be based on prior determinations of the degree of environmental impact caused by a specific facility or specific cooling water intake structure. Further, EPA disagrees that EPA has no data for lower flow facilities demonstrating an adverse envi ronmental impact. Sizeable numbers of fish impinged by lower flow facilities, including mo re than 40 studies from less than 50 mgd facilities. Greater than 82 percent of impinged fish mortality would be prevented by this rule.

As discussed above, lower intake flow does not mean low impact to the source water, and cumulative withdrawals can cause compound impacts. Section 316(b) applies to any facility that uses a cooling water intake structure and is a point source subject to standards imposed under CWA section 301 or 306. EPA has included a flow threshold to provide some reasonable limit on the scope of the national requirements imposed under today’s rule. The Agency has concluded that those existing f acilities having withdr awals that are at or below a two mgd threshold are generally the smaller intakes that may face issues of cost effectiveness, feasibility, and achievability and are therefore more appr opriately addressed by establishing BPJ section 316(b) controls as provided for in 40 CFR Part 125.

The impingement and entrainment provisions of this rule are flexible and thus can be effectively applied to address different types and sizes of facilities and diffe rent facility settings. While 25 percent of 2 mgd is 0.5 mgd, this do es not mean that final rule would apply to a facility with an intake flow threshold of 0.5 mgd. The rule only app lies to facilities with an intake flow threshold of greater than 2 mgd. A facility with a lesser flow all of which was used for cooling water would still not be subject to the categorical re quirements of this ru le. In addition, impacts generally are associated with the total intake flow of a CWIS. EPA considered alternative thresholds as part of rulemaking development a nd is using the 2 mgd threshold for the reasons discussed above and in the final rule preamble. As explained in the preamble, the 125 mgd AIF threshold focuses on facilities with higher flow sin ce such facilities result in greater potential for adverse impacts, especially entr ainment impacts. EPA data indicat e that this threshold captures a significant percentage of cooling water flow a ssociated with adverse effects to the aquatic ecosystem while it reduces the number of fac ilities subject to the more detailed permit applications requirements for entrainment character ization. EPA expects that, in most instances, facilities that already have CCRS are unlikel y to be subject to further requirements.

Burden/Cost Commenters also express concern regarding the cost of the rule. Some commenters questioned EPA’s basis for the 2 mgd threshold and suggested that the cost and bene fit analysis supports a

Essay 14 69different threshold. Commenters a sserted that a 50 mgd threshold (Option 4) is more appropriate and supported by the benefits analysis (the cost of the rule would be much lower; the benefits would only be slightly lower; 50 mgd captures a si gnificant percentage of the cooling water flow yet it omits smaller facilities, resulting in a justification based on a cost-benefit basis). Some commenters pointed to Phase III, stating that the costs were not justified. Some pointed out that increasing the threshold from 2 to 50 mgd will reduce the proposed rule costs by $57 million and only reduce benefits by $1 million.

Some commenters stated that lower thresholds will exponentia lly increase the burden on the state (affecting 30 percent of majors and 3 percent of minor permitted industrial facilities). They questioned whether meaningful environmental bene fits will result from the rule. Other argued that at 2 mgd the costs of the rule are wholly disproportionate to its benefits. Some argued that EPA has underestimated the true costs of various control technologies by a factor of 2 by not considering facility modifications and ancillary equipment, and therefore that EPA should adopt proposed Option 4.

Although EPA clearly may consider costs and benefits in estab lishing 316(b) standards, as discussed in the preamble to the final rule, EP A’s determination of the BTA standards is also based on factors other than costs and the relationsh ip of costs to benefits (see the discussion of legal authority in the preamble). Furthermore, EPA retains discretion with regard to how to balance these factors. As such, se lection of the applicability thres hold is not a simple cost-benefit calculation. In addition, limitations of the cost and benefit analyses should be acknowledged. One limitation on the use of cost-benefit is the fact that, as discussed in the preamble, relatively few benefits associated with this rule have been or can easily be quantified and monetized. To the extent commenters believe cost-benefit analys is should only reflect monetized benefits, EPA disagrees.

With respect to comments comparing this rule to Phase II and Phase III, the EPA notes the Phase III proposal option is no longer relevant. The Ph ase III rule co-proposed a 50 mgd threshold assuming full implementation of the Phase II ru le. The Phase III rule was based on those I&E requirements consisting of percent reductions over a baseline. Ther efore the Phase III rule would have imposed E requirements on facilities of all flow thresholds, whereas this final rule does not. A comparison between the Phase III rule and this rule is therefore not meaningful. Further, a Phase III rule with similar requirements to Phase II would have cost $216 million annually ($2012 using ENR index) for 603 facilities, in cluding 91 small businesses. Today’s revised section 316(b) rule provides a flexible approach for IM compliance, and does not establish uniform national E technology requirements.

Financial stress has been further mitigated by a $180 million reduction in costs over the Phase III rule cost for lower flow facilities. However, beca use the technical basis for this rule is different than the technology basis for Phase II and Phase III, the costs are not directly comparable to this final rule. The costs for the proposed rule revisi ons (including the reduced biological monitoring requirements for existing facilities between 2 and 50 mgd) are $22 million for 476 facilities below 50 mgd; about $295 million for the 589 facil ities above 50 mgd (i.e., about 7 percent of total rule costs are cost for lower flow facilities) . The flexibilities of the final rule will further reduce the compliance costs; see Essay 21 regardi ng EPA’s overestimation of rule costs. This results in EPA’s finding that ther e are no manufacturing fa cilities with a cost-to-revenue ratio of

Essay 14 703 percent, and one facility with a cost-to -revenue ratio exceeding 1 percent, all under a conservative assumption of zero cost pass-thr ough to the consumer. See EPA’s composite findings regarding no SISNOSE in the preamble. El ectricity sector revenu es exceed $126 billion, and the final rule cost is less than 0.1 percent of revenues. These costs for lower flow facilities are too small to affect costs of power or house hold utility bills. In summary, because there are affordable, available, and feasible technol ogies for impingement, EPA does not have an economic rationale for excluding low flow facilities from the national uniform requirements. With respect to small businesses specifically, th e final rule adopts two recommendations of the SBAR panel: (i) clarification, consolidation, or simplification of compliance and reporting requirements under the rule, and (ii) the use of performance rather th an design standards.

With regard to states, delegated states are cu rrently responsible for issuing permits including 316(b) requirements to existing facilities that use CWISs. Under this rule states remain responsible for implementing 316(b) conditions in permits (both categorical requirements and those based on BPJ). With or without a rule, permits must address cooling water intake structures. The final rule establishes a proce dure for collecting information, conducting studies, and evaluating alternative techno logies. The final reports for the suite of entrainment studies required by facilities with an AIF greater than 125 mgd must be peer -reviewed, alleviating concerns that the public and perm it authorities won’t have accurate and reliable information to inform decision-making. Therefore this rule does not dramatically increase the burden on states beyond their current responsibility. In many cases, the rule is exp ected to reduce the burden on states as the states will no longer have to determine BTA on a case-by-case basis. The rule provides a clear framework for issuing NPDES permits that include 316(b) permit conditions.

For the same reasons, if EPA were to adopt commenter suggestions about higher thresholds, Directors would have an increased burden in de termining site-specific IM requirements. Based on the Phase II ICR costs for permit application and studies ($395k to $679k per facility initial permit application, plus $7k annual reporting an d monitoring), the submission of basic characterization studies and pe rmit application materials upon which site-specific impingement requirements would cost the 603 facilities belo w 50 mgd an aggregate $69 million per year ($2012). This is approximately twice the cost of the studies plus technologies for meeting the IM requirements of this final rule. Thus, EPA finds it is more cost-effective to set uniform standards for impingement than to utilize BPJ. In other word s, the revised rule is more cost-effective than BPJ decision-making for IM at existing faciliti es below 50 mgd. EPA notes the same conclusion does not hold true for entrainment.

With regard to the relationship of estimated co sts to benefits, EPA did consider the cost and benefit data available in the deve lopment of this rule. EPA has developed a final rule based on all relevant factors, but its BTA determinations hi nged on factors other th an costs and benefits. EPA’s analysis does indicate that the benefits of the final rule justify its costs. Moreover, the significant flexibility built into the rule allows it to be implem ented in a cost-effective manner.

Use of AIF for Entrainment Characterization Study Several commenters supported the use of AI F for the 125 mgd threshold for the permit application requirement to provide entrainment characterization information because AIF better reflects potential CWIS impacts. Some support 125 AIF but assert that the rule should not

Essay 14 71require entrainment mortality controls for facilitie s with flows less than 12 5 AIF and observe that the use of 125 AIF will address 90 percent of flow s. Some expressed concern that, as proposed, facilities under 125 AIF will have to submit expens ive engineering and cost studies and EPA has not considered these costs for non- primary manufactur ing facilities.

Some commenters suggested th at EPA clarify that the 125 mgd AIF threshold for the Entrainment Characterization Study allows for av eraging flow over the whole year, including periods of zero flow. This is important for peak ing and load-following fac ilities, which have low average flow and very limited impact. Some su ggested that EPA should specify how AIF would be calculated for facilities with multiple intakes.

Other commenters opposed the use of AIF for the Entrainment Characterization Study and indicated that decision-makers need to know th e potential for adverse environmental impact (which is better reflected in DIF), and coul d also consider AIF alongside the DIF. Some commenters wanted EPA to reduce 125 mgd AIF to 20 mgd DIF for industrial facilities required to meet entrainment mortality requirements and main tained that the time of year and life history determines impacts. Some commenters indicated that there is no statistical basis for entrainment requirements based on AIF and DIF. One commenter asked EPA to use 200 AIF under Option 4. Finally, some commenters asked that EPA clarify that only facilities greater than 125 mgd are subject to entrainment mortality requirements.

The final rule provides that for existing facili ties the entrainment requirements are to be determined on a case-by-case basis. Such requireme nts are applicable to all in-scope facilities (including those with intake flows at or below 12 5 AIF). Under the final rule, facilities with an AIF at or below 125 AIF will only submit those entr ainment characterization studies and data as requested by the Director. The full entrainment characterization studies are required of all facilities above 125 AIF. EPA has cl arified in the rule that AIF re flects an average annual flow that considers days of zero flow. DIF and AIF for a facility with multiple in-scope intakes is based on the total flows of the intakes as define d in the rule, although DI F does not include flows associated with emergency and fire suppression ca pacity. EPA has specified AIF in the final rule for the Entrainment Characterization Study for the reasons specified in the preamble. The Entrainment Characterization St udy is designed to reflect fact ors relevant to entrainment including time of year and life history. The perm it application includes DIF, thus the Director will already have the DIF and AIF information t ogether. As discussed above, the record shows that there are identified studies impingement mo rtality and entrainment impacts associated with facilities, including thos e under 100 mgd, thus EPA disagrees that only facilities greater than 125 mgd should be subject to entrai nment mortality requirements.

AIF is more appropriate than DIF in this role since case-by-case require ments can be developed to address known actual impacts, whereas it w ould be more difficult to develop appropriate controls based on projected impacts and such controls may overregulate actual impacts. In addition, AIF reflects flow over multiple years so it should be representati ve of typical operating conditions. Under the final rule permit conditions, including entrainment requirements should be reassessed each permit term based on current permit application information.

Essay 14 72Applicability of Rule to Offshore Oil and Gas Facilities, Seafood Processing Vessels or LNG Import Terminals Some commenters supported the determination of section 316(b ) requirements at existing offshore oil and gas facilities on a BPJ basis. Other commenters maintained that offshore facilities should be subject to categorical standards that minimi ze AEI, and suggested that EPA should clarify whether it considered variable speed pumps and operational changes for such facilities. Commenters also suggest ed that EPA should clarify that § 125.91(d) provides that only ocean-going vessels are exempt from the categoric al provisions of the rule. Still others argued that only offshore (ocean going) seafood pro cessing vessels are exempt from categorical standards.

Some commenters argued that th e proposed definition of new CWIS (i.e., the date used to distinguish existing facilities from new facilitie s) conflicts with the definition of existing offshore oil and gas facility adopted in Phase III. The requirements applicable to facilities between January 17, 2002 (the date adopted in Phase I and proposed to delineate new versus existing facilities) and July 17, 2006 (the date esta blished to define existing offshore oil and gas facilities in 40 CFR 125.33) conflic t (or are ambiguous) and it is unclear whether Subpart J or N applies to offshore oil and gas facilities constructed between these two dates. The existing facility definition should include “(or July 17, 2006 for an offshore oil and gas extraction facility).” These commenters stated that EPA should retain the existi ng date (July, 17, 2006) for offshore facilities. Some commenters also asse rted that visual or remote monitoring is problematic for offshore submerged CWISs, has no basis, and should be lim ited to once per year, an approach that has proven e ffective with effluent diffusers.

EPA considered a variety of technologies available to existing offshore seafood processing facilities as part of the Phase III rulemaking. As disc ussed in the preamble, EPA did not identify technologies that were effective, broadly availabl e, and did not interfere with the seaworthiness and safe operation of the facility. See in addition to this rule record the Phase III rule record, including the Phase III TDD. Such facilities were less likely to have space for redundant pumps or excess capacity. A variable speed pump it w ould be unlikely to achieve more than a five percent reduction in flow, and was rejected both as available, feasible, and as a most effective technology. Commenters did not suggest any ope rational changes available to an offshore facility. EPA has not identified any new information since the Ph ase III rulemaking to identify any available, feasible, and most effective technologies for existi ng offshore faculties. Therefore, any requirements for existing offshore faculties are best determined on a site-specific basis using BPJ.

EPA also notes that existing facilities do not have the same oppor tunities as new facilities to install better performing equipment. This rule provides for requirements for existing offshore facilities based on BPJ and, thus, the Director can consider technologies th at meet BPJ criteria (in contrast, on-shore existing facilities are subj ect to the uniform national rule requirements).

The definitions that address existing offshore seafood processing facilities are sufficient to identify in-scope facilities. EPA has clarified the existing facility definition to be consistent with the provisions addressing existing offshore oil and ga s facilities. With regard to visual or remote monitoring, these are established practices, yet because implementation can be challenging in

Essay 14 73some situations, EPA has included some flexibility for the Director to modify these requirements where warranted.

Definition and Applicability of New Unit Commenters expressed views regarding the new un it definition and provisions in the rule. Some supported EPA’s definition of new unit and the ne w unit provisions. Some commenters want the new unit provision deleted. Some commenters suggested that EPA should clarify what constitutes a new unit at manufacturing facilities. They asserted that the definition of new unit is confusing and that it appears tailored to power plants, and asked if EPA could provide examples. Some noted that the rule does not define operating unit. Others pointed out that the term generation capacity is unclear, a nd could refer to intake structure flow or the capacity to produce a certain product.

EPA has added some language in the definition of new unit that clarifie s how this term could apply to manufacturers. EPA has not defined ope rating unit but has made additional efforts to make the definition of new unit clear. The fina l definition of new unit does not use the term generation capacity.

Some commenters stated th at EPA has failed to explain how the definition of new unit relates to applicability thresholds in rule.

EPA disagrees with the comment. The rule makes it clear which facilities are in scope. A facility must be in-scope of this rule for the new unit definition to be potentially relevant. A new unit does not have a separate applicability threshold. Th e applicability of the requirements of the final rule to a new unit at an existing facility are de termined by whether the existing facility uses a cooling water intake structure wi th a design intake flow greater than 2 mgd and not by the design intake flow of the new unit.

Numerous commenters support not regulating rebuilt, replaced, upgrad ed or repowered facilities or elements of facilities as ne w units for the reasons stated by EPA. Some supported power plant upgrades and installation of replacement units as existing units. Some commenters argued that repowered and replacement units are not new and do not have lower capital costs. Some asserted that EPA should define repowering to include fuel conversions. Some commenters suggested that repowering and replacement involve limited reconfiguration and do not create opportunities for wholesale replacement of cooling systems a nd related equipment. Others noted that the existing definition of new units promotes upgrad es that increase efficiency and a broader definition would hinder cleaner, more efficien t technology. Some commenters observed that no baseline date has been set to define which re tired units can be repowered or replaced. Some commenters argued that the rule should promote retiring older units and repowering with cleaner technologies, as well as allow for the us e of existing capital intensive assets.

EPA has included the new unit requirements in the final rule for the reasons discussed in the final rule preamble. The impingement and entrainm ent requirements specified apply to the intake flow serving the new unit only. EPA has not determ ined that fuel conversions provide the same opportunity to install CCRS as the addition of a new unit, and agrees with those commenters accordingly. The final rule definition of new unit does not specify a date to identify which units

Essay 14 74can be repowered because identifying such a date is not necessary in the final definition. EPA supports the use of cleaner te chnologies but notes that this rule does not address power generating technologies, rather the rule addresses CWIS technologies.

In contrast, some commenters a sserted that EPA defines new unit too narrowly and that rebuilt, retrofitted, repowered or repla ced units should be subject to the more stringent controls regardless of whether the unit or facility increases intake or generation capacity. Some suggested that any modifications (rebuild, repower, replacement) should require cooling towers. They asserted that many of the reasons that justify the use of closed-c ycle cooling at new units apply to repowered or replaced units. Commenters from New York State indicated that New York State regulates repowered or replaced units as new, since to do otherwise would cause unnecessary harm to aquatic resources. Th e New York Department of Environmental Conservation recommended that EPA require al l repowered and replaced industrial facilities with a DIF of 2 mgd or more to meet the standard s of the Phase I rule since the rationale for that rule applies directly to such facilities. Sim ilarly, The Connecticut Department of Energy and Environmental Protection sugge sted that the new unit defi nition should be broader, encompassing repowering, rebuildin g or replacement, even if cap acity is not increased, since these major modifications present an opportunity for a facili ty to evaluate and invest in effective technology in a cost-effective mome nt. Commenters also asserted that repowered, replaced and rebuilt facilities must be subject to the same clos ed-cycle cooling requirements as new units at existing facilities. One commenter stated that EP A should adopt the definition of new unit in the version of the proposed rule that was submitted to OMB shortly before proposal as the proposed definition of new unit and existing facility are problematic in that f acilities expanding or upgrading are not required to use modern CWIS technology. These commenters stated that EPA does not provide justification for not treating re placed, repowered, or rebuilt facilities as new units. Some commenters suggested that new units should include phys ical changes to an intake structure that materially increases the desi gn flow rate and EPA should not include the replacement of components that do not do so. So me commenters asserted that EPA’s definition of new unit would create a huge loophole.

The final rule does not require CCRS for existing units at existing facilities for the reasons discussed in the final rule preamble. It does pr ovide for CCRS for new units based, as discussed in greater detail in the preamble, on the unique si tuation the addition of ne w units at a facility provides. This approach is consis tent with the efficacy, feasibilit y, cost and other data available to EPA, as well as with the Phase I rule. EPA’ s definition of new unit in the final rule is consistent with this approach. In addition, this rule does not restrict st ates from imposing more stringent requirements pursuant to state law. EP A does not agree that the definition of new unit creates a loophole because, under the final rule and th e new facility rule, a fa cility will be subject to regulation either as a new facility, existing facility, or a new unit at existing facility. Any existing facility not subject to th is rule, as noted, will continue to be subject to section 316(b) requirement established on a BP J basis pursuant to 40 CFR 125.91.

Some commenters asserted that EPA’s approach to new units is not authorized (the CWA addresses intakes, not units), is arbitrary (in the Phase II rule EP A rejected addressing new units at existing facilities and no ne w justification is provided for reversing that decision, only unsupported assertions), is unclear (it is unclear with regard to when manufacturing units are replacement versus increased capacity, and whet her the new unit must meet a DIF threshold)

Essay 14 75and, as a result, is unworkable. Commenters stat ed that the new unit provisions are so unclear that EPA needs to re-propose them. Commenters asserted that the definition of “replacement unit” needs to be clarified. Some commenters stated that the assertion that the capitol costs for closed-cycle at new units are lower than th e capitol costs for once through cooling is not credible, and that new units require the same e quipment, plus cooling towers. Other commenters argued that limited land availabil ity is an issue for new units required to install closed-cycle cooling. Some maintained that EPA has not justif ied the conclusion that closed-cycle cooling is BTA for new units. These commenters asserted that existing facilities installing new units have less space than other facilities, i ssues such as drift still are problematic, and it is EPA speculation that existing facilities have the option to re duce water usage elsewher e (modern manufacturing facilities have reduced water us e significantly). Commenters also argued that EPA’s decision to define only units added to increase capacity is OMB driven, contrary to EPA technical experts, irrational, arbitrary and capricious.

EPA has explained its basis for the new unit provisi ons and definition in the preamble to the final rule. As indicated in the preamble, EPA ha s compiled and assessed additional data since publishing the Phase II rule and these data, in cluding engineering and costs analyses, support EPA’s approach in the final rule. Based on the final rule record, EPA maintains that exiting facilities have greater flexibility in configuring new units and associated cooling than in altering aspects of existing units, and th at repowering which constitutes in stallation of a new unit creates engineering opportunities to install closed-cycle cooling. As EPA ha s stated above, the final rule definition has been clarified and includes language that addresses manufactur ers. It does not use the term replacement unit.

Some commenters asserted that , for new units, the rule shou ld focus on the design of the condenser cooling system being consistent with closed-cycle cooling. EPA agrees with the comment, and has revised the final rule requiremen ts and definition to achieve a similar result.

Some commenters indicated that a new unit canno t determine the cost of compliance until after the facility is constructed. EPA disagrees with the comment. EPA’s record includes costs for a retrofit. Retrofits are more difficult to assess than new construction. Th erefore EPA maintains that reasonable cost estimates can be developed prior to construction.

Some commenters noted that when submitting a permit application for a new unit, baseline entrainment densities at the existing facility could be exceeded due to natural population fluctuations. EPA agrees that source water ch aracterization can change with season, diel, weather, and further can change over time. Acco rdingly, EPA requires that the characterization be updated with the application for permit renewals, and requires biological studies be conducted over sufficiently long periods to characterize such fluctuations.

Some commenters suggested eliminating the ne w unit provision and addressing new additional units consistent with Phase I requirements. EPA disagrees with the comment. This rule does not alter the Phase I rule provisions. This rule has be en developed to be consistent with the Phase I rule while addressing exiting facili ties. The Phase I rule was not developed to address new units at existing facilities and, thus, this rule is the appropriate mechanism for doing so.

Essay 14 76Some commenters asserted that the new unit provision should not disallow use of recirculating cooling reservoirs. The commenter appears to misunderstand the new uni t provisions. The new unit provisions do not disallow use of a CCRS.

Other Comments Some commenters stated that smaller units and smaller communities will be most impacted by the cost of compliance. Other co mmenters stated that waste-to-e nergy facilities should be given greater flexibility regarding compliance. As discussed previously, th e final rule imposes reasonable costs consistent with 316(b) requireme nts and includes significa nt flexibility that should enable existing facilities to identify cost-effec tive options. Further, the rule streamlines permit applications, compliance, monitoring, and other reduced requirements in certain situations. Section 316(b) does not provide fo r specific requirements for waste-to-energy facilities. EPA conducted a site visit to a waste- to-energy facility, and ha s not identified a basis for different standards. EPA also notes the comm enter did not provide any data or examples of why waste-to-energy facilities should be give n greater flexibility regarding compliance.

Some commenters suggested applying the rule to new facilities only and grandfathering existing facilities until 2040. EPA disagrees with the comment. Not addres sing existing facilities until 2040 would not implement CWA section 316(b) or ensure that each CWIS reflects BTA. See preamble XI Implementation for more information on how the final rule schedule for implementation accounts for studies, IM , E determinations, and compliance.

Some commenters indicated that it is not clear what it mean s for compliance costs to be wholly out of proportion. The entrainment provisions of this rule incl ude a provision that allow the Director to determine that no additional entrainment controls are required at a particular facility if the Director finds that all the entrainment cont rol technologies considered for the facility have social costs not justified by the so cial benefits of the controls.

One commenter suggested some regulatory revi sions to achieve consistency. Generally, in response to some comments and to ensure cons istency and clarity in the rule, EPA has made certain edits to the final rule language. See the final rule and preamble. There is § 122.21r(ii)(A) and thus it is not clear which provision is bei ng referenced. It should al so be noted that some permit application requirements (e.g., § 122.21(r)(1 )(ii)(B)) are in addition to basic permit application requirements for a specific category of facilities, and these should be read together. With regard to requiring AIF information as part of the permit application, § 122.21(r)(3) requires flow information at (iii) A narrative desc ription of the operation of each of your cooling water intake structures, includi ng design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable; and (iv) A flow distribution and water balance diagram that include s all sources of water to the fa cility, recirculating flows, and discharges. Because this information must be prov ided for each intake, there is generally no need to identify the facility-wide AIF as additional information. The Director can require additional information, including monitoring of the AIF, when needed. Further, those compliance alternatives that are based on actual flow al ready require flow monitoring; such as § 125.94(c)(1), (3), (4), and (6). Finally, the final rule includes Entrainment Characterization Study provisions in the permit applica tion portion of the rule. These provisions focus on development and submission of entrainment information and are appropriate in this part of the rule.

Essay 14 77

### Essay 15: EPA’s Approach to Establishing Best Technology Available 316(b) Standards for New Units and Existing Units

Introduction As described in the preamble to the final ru le, in evaluating standards to minimize adverse effects associated with cooling water intake struct ures at existing facilities, the EPA reviewed the data from its previous section 316(b) rulemaking efforts as well as collecting and analyzing new data to evaluate the best tec hnology available for existing facilitie s. In response to its proposed standards for existing facilities, EPA received a large number of comments on its proposed approach for determining what standards would reflect the best technology available for minimizing adverse environmental effects. These comments addresses area that included what regulatory framework that EPA should follow to de termine these standards and the role of costs and benefits in evaluating “best technology available” as well as information about what specific technologies for reducing adverse effects should be adopted for the final rule.

As discussed in section VI of the preamble, on the basis of the high le vels (about 96 percent on average) of flow reduction obtai ned by properly operated cooli ng towers and the availability, feasibility and affordability of closed-cycle cooling at new units, EPA has identified wet cooling systems as the BTA technology for both impingement mortality and entrainment for new units at existing facilities. The EPA did not compare costs to benefits for new units (as defined in the final rule) because EPA does not know where a new unit will be built, what cooling water withdraws would occur at the new unit, what levels of impingeme nt or entrainment would occur at the new unit, or when the new unit would be constructed. For more info on new units, also see Essay 20.

The final rule establishes BTA standards for reducing impingement mortality and entrainment requirements for existing power generating faci lities and existing manufacturing and industrial facilities that withdraw more th an 2 million gallons per day (mgd) of water from a waters of the U.S. and use at least twenty-five (25) percent of the water they withdraw exclusively for cooling purposes. EPA’s determination of BTA standard s followed a rigorous analysis of technology performance, the feasibility and applicability of different technologies in multiple settings and a reasoned assessment of the costs and benefits of the different appr oaches. Moreover, as described in section VA.A of the preamble the EP A considered a number of factors in its final determination of what should be the BTA standa rds, including many of same factors EPA looks at in establishing its BPT, BCT and BAT effluent limitations guidelines.

For additional information, refer to the preamble to today’s final rule.

Overall Approach to BTA for Existing Units As noted above, EPA received a large number of comments on how the rule should be structured. As described in the preamble, EPA has promulgated a final rule that establishes requirements under section 316(b) of the Clean Water Act for existing power generating facilities and existing manufacturin g and industrial facilities. Fo r impingement, the final rule

Essay 15 78establishes BTA standards for minimizing impinge ment mortality that include seven compliance alternatives, providing ample flexibility for all in-scope facilities. The alternatives include several options for “pre-approved” technologies and “streamlined” options, all of which are based on technologies for which EPA’s record dem onstrates achieve reductions in impingement mortality that are comparable to the IM BTA – m odified traveling screens with fish returns. The final rule also establishes the national BTA sta ndard for entrainment. In the case of existing units, the rule does not prescrib e a single nationally applicable entrainm ent reduction technology but instead establishes a framewor k that requires the Director to establish the BTA entrainment requirement for a facility based on site-specific data contained in the permit application. The entrainment requirements must reflect the Direct or’s determination of the maximum reduction in entrainment warranted after consid eration of all factors relevant to the BTA determination at the site and must include considerati on of the specific factors spelled out in the final rule. The permit application requirements in the final rule will ensu re that the Director ha s adequate information for determining the BTA for entrainment. Refer to the preamble for details on each of these items.

One large umbrella environmental organization, Riverkeeper, stated that EPA’s approach to establishment of BTA (i.e., rejecting a single unifo rm national standard for entrainment in favor of a national standard for data gathering and th e process for a site-specific determination for entrainment) is illegal and that EPA must develo p a nationally applicable standard that reflects BTA. As discussed in section V1.A of the preambl e and in more detail below, the CWA is silent about what factors EPA should c onsider in its determinations under section 316(b) and in the face of this silence, EPA may consider a number of relevant factors. As EPA’s analyses and record show, facilities exhibit significant vari ability in their configuration and operations, arguing that uniform entrainment requirements are ge nerally infeasible at the national scale. As such, the final rule appropriately establishes a national BTA standard for entrainment that is a process for a site-specific determination of en trainment requirements at existing CWIS. This provision further reflects EPA’ s assessment that there is no technology that is BTA for entrainment at all facilities, base d on a set of factors th at are best accounted for on a site-specific basis. EPA also disagrees with the commenter’s interpretation of secti on 316(b) as a technologybased standard; see discussion of litigation history including the U.S. Supreme Court decision in the preamble at section II and the Essay 10.

Approach to BTA for Entrainment at Existing Units/Facilities

Closed

‐ Cycle Recirculating Systems Many commenters provided variable positions as to how to consider closed-cycle cooling such as wet cooling towers (or an equivalent level of performance based on the significant reduction in flow by a properly operated cooling tower) as the BTA standards basis for entrainment. Riverkeeper and other environmental groups argu ed that EPA should find closed-cycle cooling and cooling towers as the basis for section 316(b) BTA standards and that EPA incorrectly rejected this technology as the basis for entr ainment standards. These commenters favored Option 3 (an option requiring closed-cycle at all f acilities with a DIF greater than 2 mgd) as presented in the proposed rule. Riverkeeper noted that the flow reductions of closed-cycle cooling pose the most certain way to reduce en trainment. In support of this position, these commenters state that there are significant loss es of aquatic life due to the operation of onceEssay 15 79through cooling water intake structures, that closed-cycle cooling is both available and affordable, and that EPA has established the fina l rule under the mistaken principle that best technology available implies that the technology must be universally availa ble to all facilities. They suggest that the lack of a national entrainm ent standard will largely result in the status quo at facilities, resulting in no in stallation of technologies and th erefore very little improvement. Riverkeeper further argued that the Second Circ uit (in Riverkeeper I) de termined that many of the factors cited by EPA in rej ecting closed-cycle cooling we re not valid. So me commenters provided detailed studies and an alyses supporting these posi tions; EPA appreciates these submittals and the supporting studies and data, and has considered them in preparing the final rule. Some commenters also claimed that projecte d impacts to energy reliability as a result of the impacts of closed-cycle cooling are overstated; one commenter referred to a study that was not provided, so EPA was unable to verify the specific information.

Industry commenters supported the proposed rule’s position that closed-cycle cooling is not available at the national level, which in the commenters view is a position supported by the Entergy decision. These commenters also agreed with the approach of the proposal to determine entrainment on a site-specific basis.

Some industry and some environmental group co mmenters provided detail ed studies (including analyses of reliability, costs, benefits, feasibil ity, the universe of affect ed facilities, and other non-water quality environmental impacts) suppor ting these positions; EPA appreciates these submittals and considered them in preparing the final rule.

Some commenters (inclu ding states) supported the proposed rule regulatory framework of flexible approach to IM requirement and a framework for site-specific entrainment requirements. They noted that a site-specific approach is pref erable for entrainment, allowing consideration of multiple factors most relevant to the particul ar location. Others suggested that EPA adopt a “rebuttable presumption” for closed-cycle cooling as BTA. Another state commenter argued that closed-cycle cooling was the clear choice as th e best technology available for similar reasons stated by environmental groups. A state commente r agreed with EPA’s proposal that closedcycle cooling was not feasible at all facilities, bu t that EPA should require BTA entrainment standards that reflect equivalent (or nearly so) performance at those sites where closed-cycle cooling is infeasible. These st ate commenters did not provide da ta or suggest what technology these alternatives to clos ed-cycle might be based on.

Another commenter stated that th e approach taken in the proposed rule was contrary to EPA’s historic approach as well as the Agency’s position in Riverkeeper I. Some commenters state that EPA failed to describe how a BPJ-based approach is comparable to closed-cycle cooling, which in their view is requ ired by Riverkeeper II.

As explained in the preamble, closed-cycle c ooling based on wet cooli ng towers is a highly effective technology for reducing both impingement and entrainment. Howeve r, with respect to entrainment, the EPA has concluded that it s hould not adopt a BTA entrainment standard prescribing a uniform national technology with a requirement for a (CCRS) closed-cycle recirculating system based on wet cooling towers . EPA concluded that closed-cycle cooling is not an available entrainment re duction technology on a national scale and therefore should not form the basis for the “best technology available” entrainment standard. The record shows that

Essay 15 80closed-cycle cooling is not technically available in a number of circumstances either because (1) land availability and geographical constraints could be a factor on a local basis (such as limited space available to install cooling towers, noise mitigation, and setback distances for plume abatement); (2) increased air emissions (such as due to the need for increased fuel burned to operate the cooling towers); and (3) remaining usef ul plant life (for exampl e a plant scheduled to be shutdown in 3 years will result in very little en trainment reductions as compared to a facility that will continue to operate for a significantl y longer period). In addition, EPA analyzed other factors in addition to availabili ty in reaching its conclusion no t to base the BTA entrainment standard on closed-cycle cooling.

To be clear, EPA did not c onclude that closed-cycle co oling is not available at every facility. Nor has EPA rejected CCRS on grounds that the tech nology is not economically achievability. While EPA did consider costs, costs were not a disposi tive factor in the decision to reject CCRS based on cooling towers. Rather, EPA considered its app licability to the industry as a whole. That is, the record demonstrates that while EPA cannot identify with precision the extent of these limitations on installing closed-cyc le cooling systems nationwide, the record indicates that the circumstances are neither isolated nor insignificant. EPA tried to identify characteristics for which it has information that would allow it to su bcategorize those facilities where closed-cycle is not available (e.g., land size threshold), but was unable to do so and concluded that such determinations can only be made on a site-speci fic basis consideration; see TDD for further discussion. Furthermore, contrary to the stat ement made by some commenters, EPA reasonably concludes that the avai lability of a technology to the indus try is an appropriate factor for evaluating BTA technology bases for national standards. EPA ha s historically evaluated the availability of a technology to the industry in making technology base determinations for other national technology based performance standards. For more information on the reasons EPA rejected closed-cycle cooling as the basis fo r national BTA entrainment requirements, see the preamble.

Some commenters stated that th ere are other technologies, where cooling towers are infeasible, that would allow such facilities to comply with performance standards based on cooling towers as BTA. One commenter argued th at wedgewire screens can offe r comparable performance to closed-cycle cooling.

EPA disagrees with the commenters supporting pe rformance equivalent to CCRS is BTA. EPA has concluded that performance equivalent to CCRS is not BTA because there are no available, demonstrated, and feasible tec hnologies on which to base such requirements. Most commenters did not suggest what technologi es demonstrated a performance comparable to CCRS. While several commenters submitted studies, none of the commenters provided performance data that demonstrated performance comparable to CCRS. Mo re specifically, with respect to traveling screens, modified traveling screens offer no reduction in entrainment unless the screens consist of fine mesh. With respect to fine mesh screen s (both passive and trave ling screens) the record shows that CCRS reduces the entrainment mortality of eggs and larvae 8-fold more than fine mesh screens (based on the mean value of perf ormance data for both eggs and larvae); see TDD Chapter 6 for more details. While some sites obtained reductions in entrainment with one or more technologies including fi ne mesh screens, EPA found th e studies did not distinguish between intake location (such as offshore subm erged intakes) and the fine mesh screens themselves. Most studies submitted by industry show ed a bias towards older/larger larvae, which

Essay 15 81are generally more developed life stages of fish and shellfish. These olde r life stages are starting to exhibit survival traits and avoidance responses. These studies are poor indicators of performance for eggs and early life stages, whic h have no avoidance response (eggs can’t swim) and no protective features (no skel etal structure or incomplete formed structure, and no scales). The submitted studies also did not fully characteri ze survival of entrainable organisms; in other words, these studies often characterize entrainable exclusion, and did not measure entrainable survival. These studies are theref ore rejected as supporting fine me sh performance is comparable to CCRS.

In addition to EPA concluding fine mesh pe rformance is not comparable to CCRS, EPA’s analysis shows fine mesh is not widely availa ble. Overall, EPA’s tec hnical analysis shows 68 percent of facilities would need to expand the size of their intake 10 by more than five times to accommodate a retrofit to fine mesh, and the vast majority of these sites do not have sufficient water front space or water depth to accommodate such an expansion. In addition to limited source water depth and well dept h, EPA notes that even if fine mesh performance was comparable to CCRS, fine mesh is not available at an estimated 17 percent of facilities based on existing intakes that need to be enlarged to accommodate 2.0-mm fine mesh. Similarly, enlarging the existing intakes to accommodate a reduced open surface area when retrofitting to 0.5-mm mesh is unavailable for at least 55 percent of f acilities. These analyses and supporting data lead EPA to conclude that fine mesh screens would not be an available technology at a significant number of sites. EPA did not receive any new da ta to the contrary. In addition, EPA recognizes that high sediment waterbodies pos e a challenge for fine mesh sc reens, and high sediment water can cause “blinding” of the intake. For all of these reasons, fine mesh screens do not offer survival of entrainable organisms to the extent CCRS does, and EPA rejects all comments stating that fine mesh performs comparable to CCRS. Se e preamble VI.C for further discussion of fine mesh screens.

EPA agrees that other technologies (such as variable speed pumps or variable frequency drives, seasonal shutdowns) may be effective at some site s, and facilities are en couraged to implement such technologies to reduce entrainment, EPA’s an alysis showed that these technologies also do not achieve the same level of reduction in entrai nment as closed-cycle cooling. Variable speed drives can achieve a maximum of 10 to 15 percen t reduction in flow; th e average flow reduction is about 8 percent for those sites where th e technology is available. Therefore CCRS is approximately an order of magnitude better in performance than VFDs. Seasonal shutdowns are not available at baseload power generating f acilities, nor are they available at most manufacturing sites, because these faciliti es operate year round. Shutdown during peak entrainment seasons is not viable for these faci lities. See preamble VI.C for more discussion. Upon full consideration of all comments and data, EPA has concluded that performance equivalent to CCRS is not BTA (because there are no available, demonstrated, and feasible technologies on which to base such requirements).

To reiterate, EPA concluded that closed-cycle cooling is the mo st effective technology and there is a gap in performance (when viewed at the nati onal scale) between closed -cycle cooling and all

10 Fine mesh screens reduce the open screen area availabl e for water to flow through the screen. To maintain approximately the same volumetric flow and the same intake velocity so as not to cause adverse plant operations, the intake therefore must be expanded with additional scre en bays to provide the requisite open screen area.

Essay 15 82other technologies with regard s to entrainment As discusse d above, closed-cycle cooling provides an average of 96 percen t reduction in entrainment. According to EPA’s record, one of the next most effective technology with regards to entrainment is fine mesh screens. Also as discussed above, the record shows that fine me sh provides less than 12 percent survival of entrainable organisms at 0.5-mm mesh size (mean value for eggs and larvae combined), and no protection of eggs at a 2.0-mm mesh size. In addition to this perf ormance gap, there is a lack of nationally available technologies. For all of these reasons, EPA did not identify an available candidate technology on which to base entrainment performance st andards. As discussed above, since technologies other than closed-cycle coo ling may offer some level of entrainment reduction at some sites, EPA’s final rule includes requirements at § 122.21(r)(10) to develop a Comprehensive Technical Feasib ility and Cost Evaluation Study.

EPA also disagrees that under section 316(b), the EP A may only consider one factor - the performance of different entrainment reduction technologies - in determining BTA requirements under section 316(b). Riverkeeper I and II and the U.S. Supreme Court’s decision in Entergy establish that, while EPA may consider the factor s specified in sections 304 and 306 as relevant factors in its decision-making, it is not limited to those factors. Section 3 16(b) is a separate and distinct statutory provision from section 301, 304 and 306. (See, for example, page 1506 of 129 S. Ct., which concluded that EP A is not bound to apply only those factors. The court noted that the BTA standards of section 316(b) must “m inimize” adverse environmental impacts and contrasted that with the Congre ssional goal to “elimin ate” the discharge of pollutants. Also, the Supreme Court noted that 316(b) contains broader language with additional discretion, describing the statute’s silence on certain issues as an indication to “convey nothing more than a refusal to tie the agency’s hands.”) As a conse quence, while EPA may consider factors like those considered in developing its effluent limitations guidelines, EPA has discre tion to consider other factors in its decision-maki ng under 316(b). See preamble sec tion II and Essay 10 for more details.

EPA disagrees that the final rule will perpetuate the “status quo” of inaction on 316(b) requirements. Section 125.90 makes it clear that all CWIS must m eet the requirements of section 316(b), including those CWIS at f acilities not in scope of the fi nal rule. Today’s final rule establishes a schedule for submitting permit applica tions and studies, provides the Director and the public with new and significant information, and ultimately establishes a rigorous process for determining BTA for each facility. Notably, while site-specific permit requirements are not new, what is different about EPA’s approach from the current requirement for permits to include 316(b) conditions is that for the first time, EPA is establishing a detailed specific framework for determining BTA entrainment control requirements. Thus, the rule identifies what information must be submitted, prescribes procedures that the Director must follow in decision-making and factors that must be considered in determin ing entrainment requirements. See preamble for further discussion.

EPA disagrees with the comment that facilities with closed-cycle should have no further study or reporting obligations. EPA’s record shows that there are existing facilities with closed-cycle cooling that do not optimize thei r operations to minimize water withdrawals. In some cases, facilities with cooling towers have been found to operate their cooling towers as once through cooling. Other cooling towers are operated at far lower than optimized cycles of concentration and with makeup water withdraws that are not mi nimized. Today’s final rule definition of CCRS

Essay 15 83requires the facility to demonstrate to the Dire ctor that makeup water withdrawals have been minimized. Furthermore, periodic evaluation of the source waterbody is necessary to ensure no significant changes have occurred in the operation of the facility or in the source waterbody. For example, a species of local importance may warrant additional study, monitoring, or technology controls. For these reasons, EPA disagrees that there are any facilities that should have no study requirements as part of the permit applicati on or reporting obligati ons under the permit.

EPA also disagrees that the Riverkeeper I decision establishes the factors EPA consider in determining BTA. EPA has considered non-water quality environmental impacts to the extent such information was available. EPA further not es that more information on these impacts is available now than was available in the developm ent of the Phase I and II rules. However, CCRS is rejected as BTA for the reas ons stated above. See the preamble for more details on the factors EPA considered in determining BTA for entrainment. Examples of non-water quality and other impacts considered in this rule at § 122.21 (r)(12) include changes to energy consumption, estimates of air pollutant emissions, changes in no ise, impacts to safety, facility reliability, and consumption of water. Also see Essay 17A.

Some commenters suggested low in take velocity was BTA. Riverkeeper noted that reducing the intake velocity will do little to reduce entrainment.

EPA disagrees low intake velocity is BTA for en trainment. As discussed above, early life stages have no avoidance response, and therefore low in take velocity offers no protection to such organisms. With respect to theories regarding hydrodynamic influences of low intake velocity, EPA notes that egg and larvae excl usion do not equate to survival. Impact of eggs and especially early life-stages of larvae on a CWIS still cause damage and/or mortality of the organisms. Also see Essays 10 and 18. Therefore EPA agrees that reducing the intake velocity does not reduce entrainment and has assigned no reductions in entr ainment to intake velocity-related compliance options.

Approach to BTA for Entrainment at New Units Constructed at Existing Facilities New units are required achieve performance commen surate with that which can be attained by the use of CCRS because the technology is ava ilable, demonstrated, and achievable; see preamble for further discussion. The final rule at § 125.94(e)(2) provides the flexibility for facilities to demonstrate, on a site -specific basis, a system of tec hnologies approach that provides performance comparable to CCRS. Because new units are required to achieve performance commensurate with that which can be attained by the use of CCRS (at § 125.94(c)(12)), the above discussion of lesser perf orming technologies for entrainmen t at existing facilities is obviated.

Other Technologies for BTA for Entrainment at Existing Facilities One commenter argued that wedgewire screens can offer comparable performance to closedcycle cooling. The commenter did not provide co mparability performance data. EPA disagrees that wedgewire screens perform comparably to cl osed-cycle cooling, especi ally with respect to entrainment. To date, EPA has not identified any performance studies for wedgewire screens alone that support the position that these screens achieve a performance e quivalent to that of

Essay 15 84closed-cycle cooling systems. First, the screens mu st consist of fine mesh to have any bearing on entrainable eggs or larv ae; see the TDD. Second, fine mesh wedgewire screens merely exclude entrainable organisms from being sucked into the facility because eggs have no avoidance response and thus do not necessarily result in redu ced destruction of the eggs and larvae. This is in contrast to closed-cycle cooling which signif icantly reduces withdraw of cooling water in the first place. EPA acknowledges that wedgewire scr eens may result in reductions of entrainable organisms at some facilities (based on local speci es and life-stages found in the vicinity of the CWIS), and may prove to be effective at some si tes as part of a systems approach to reducing adverse environmental impacts (such as in combin ation with a far offshore and deep submerged intake). EPA’s record suggests th at a far offshore location with a deep intake, with variable speed drives, in combination with fine mesh has the potential for entrainment performance approaching that of closed-cycle. However, su ch an approach is not available at inland waterbodies such as rivers and streams.

While the record shows fine mesh wedgewire sc reen performance is no t comparable to CCRS, and is not BTA for the reasons discussed a bove, EPA is not prejudg ing the site-specific determination of entrainment. While EPA can address the overall performance of each technology considered in this ru le (see TDD), EPA does not have sufficient data to opine on the facility-specific details raised by the commenter as to what technology is the best choice at a given site. The final rule establishes a process through which the facility will submit data and the Director will make a site-specific determinati on of BTA for entrainmen t. EPA’s BTA standard for entrainment requires the determination of BT A entrainment reduction controls in a structured process with consideration of specified factor s as indicated above. Th is process allows the Director to consider a given technology or syst em of technologies performance at a given site, particularly installation and ope ration of a numbers of technol ogies that in combination may result in achieving reductions in entrainment nece ssary to achieve BTA at that site. For the same reasons, EPA is unable to pre-judge the timing of benefits when establishing a schedule for entrainment requirements at each site.

Some commenters requested that EPA include cooling ponds in the definition of a closed-cycle system and that makeup water should be exclude d from 316(b) requirements; refer to Essay 14 for responses to this comment. Some commenters stated that the bulk of the burden of proof of having an adverse environmental impact falls to the Director instead of the facility, when the inverse would be more appropriate. Other comme nters (including a stat e commenter) urged EPA to not promulgate a rule based on a site-specific determination of entrainment, as it reinforces industry’s positions of status quo, and would not further the goal of enhanced protection.

EPA disagrees with each of these comments. As discussed above, the final rule is a significant improvement over the status quo. The studies requir ed for certain facilitie s’ permit applications, including but not limited to peer reviewed information related to entrainment characterization, must be collected by the facility. The rule lays out a structured process by which entrainment will be addressed by each facility. Together, th ese requirements minimize adverse environmental impact through significant reductions in entrai nment. Facilities will collect new data and Directors and the public will have access to this information. EP A disagrees with the adverse comments concerning cooling ponds and waters of the U.S. The definition of closed-cycle cooling does not preclude the use of cooling ponds, nor does this rule alter or define waters of the U.S which is outside the scope of this pr oceeding. Hundreds of studies in EPA’s record

Essay 15 85document impingement and entrainment occurring at all CWIS, including all waterbodies, types of intakes, and locations. Commenters did not provide any data to the contrary; even industry commenters providing data that their facility poses a de minimis AEI show impingement and entrainment. Therefore, there is no need for furthe r proof that a CWIS subject to this rule has the potential for having an adverse environmental impact. The site-specific level of adverse environmental impact will vary, further supportin g EPA’s conclusion that BTA for entrainment includes a framework and the factors for determining BTA requirements.

Some commenters argued that EP A should clarify that there is no BTA for entrainment and allow the Director to establish entrainment contro ls. EPA disagrees with the notion that there is no BTA. EPA has determined that there is no available technology on which EPA can establish performance standards for entrainment. However, the final rule establishes as the BTA standard the requirement to determine for each facility in a structured process the site-specific entrainment reductions measures that co mprise BTA for that site.

Some state commenters advocated for national entrainment requirements, noting that a sitespecific approach would be too resource intensiv e; alternatively, they called on EPA to provide guidance, funding or staffing. EPA disagrees. As noted in the preamble and above, EPA concluded that national entrainm ent numerical performance standa rds were not appropriate. With respect to intensive resources, EPA also disa grees. All facilities must submit source water baseline characterization, cooling water syst em data, existing entrainment characterization studies, and other information as part of the permit applicatio n at § 122.21(r)(1) through (8). Facilities that withdraw great er than 125 mgd must submit deta iled entrainment characterization studies, technical feasibility and cost evalua tions, and other relevant data. The complete Entrainment Characterization Study must be p eer reviewed. EPA has considered all costs associated with studies and peer review, and the final rule establishes these requirements on the facility. This permit application process thus places the relevant in formation in front of the state Director. The final rule at § 125.98(g) provides Directors the discretion to waive certain requirements for an ongoing permit proceeding. The final rule also provides Directors the discretion to waive certain perm it application requirem ents; see § 125.95(a)(3). Further, EPA has defined a process by which site-specific determ inations are made base d upon these studies and data. See § 125.98 for details regarding the fact ors to be considered and the process for determining BTA for entrainment. Additional costs have been included for the Director’s review of the submitted information and final determin ation of BTA. EPA finds these costs are not burdensome. For further information see the di scussion of UMRA in section XI.D of the preamble. EPA will evaluate the need for further guidance after publication of the final rule as the final rule will be implemented through th e Directors’ existing NPDES state programs.

Some commenters stated th at because the proposed rule fails to address entrainment, the rule leaves a majority of the impacts unregulated. Othe r commenters added that the apparent lack of adequate entrainment control technologies should encourage additional research. Some commenters stated that the rule should, at a mi nimum, achieve the lower end of the performance range from the Phase II rule.

EPA disagrees with all of these comments; the final rule does address entrainment by establishing a process for collecting information a nd providing it to the Director to make a sitespecific determination of BTA. “Site-specific” does not equate to “unaddressed.” EPA also

Essay 15 86disagrees that it can establish requirements on the premise of tec hnologies that have yet to be developed. EPA can realistically only base pe rformance standards upon technologies that are available and demonstrated at the present time. As noted in the preamble and in the proposed rule, EPA has changed its approach to addressing entrainment since the Phase II rule primarily based on new data, as well as a more complete understanding of the difference between entrainment exclusion and entrainment mortality. Further, some of the Phase II rule entrainment requirements are no longer authorized (restor ation). The performance range is now known to represent exclusion, and does not represent reductions in entrainm ent mortality. Accordingly, the Phase II performance range for entrainment no longe r reflects BTA. As discussed above, there are no intermediate performing technologies fo r entrainment. For a ll of these reasons, a percentage-based approach to reducing entrainmen t is no longer relevant. EPA agrees that CCRS must be considered in the rulemaking, but disagrees with the interpretation that Riverkeeper II mandates that EPA mandate closed-cycle cooling in future rulemaking (i.e., this rule). The Supreme Court decision in Entergy reversing the Second Circuit in Riverkeeper II made it clear that EPA has wide discretion in the factors it considers in its s ection 316(b) decision.

Approach to Impingement BTA at Existing Units/Facilities As indicated above, industry commenters argued th at facilities with existing closed-cycle cooling systems should be considered compliant for bot h impingement mortality and entrainment, and that such facilities should not have any additional impingement requirements. Some industry commenters noted that EPA’s assu mption that all facilities employi ng closed-cycle cooling (as a retrofit) would meet the design intake velocity threshold of 0.5 fps, and thus would meet the proposed rule requirements for IM, was errone ous. Some industry and some environmental group commenters provided detailed st udies (including analyses of reliability, costs, benefits, feasibility, the universe of affected facilities, and other non-wa ter quality environmental impacts) supporting these positions; EPA appreciates these submittals and considered them in preparing the final rule.

Another state commenter added that modified traveling screens should be considered preapproved compliance technology for the impingement BTA standards. The commenter further suggested that for intakes supporti ng a closed-cycle cooling system , such intakes should have no further study requirements.

Based on the record for the fina l rule, EPA agrees with commen ters that facilities with an existing closed-cycle system that is properly op erated and maintained will meet or exceed the impingement mortality performance standard regardle ss of their intake velocity. This is because CCRS, on average, will reduce flows by 96 percent. Th is reduction in flow results corresponds to a 96 percent reduction in the rate of impingeme nt. Accordingly, EPA agrees with the concept that facilities with closed -cycle cooling should have reduced study requirements. This is reflected in the final rule de finition at § 125.94(c), and the perm it application requirements at § 122.21(r). See preamble for further discussion of reduced study requirements.

With respect to IM, EPA disagrees with the comm ent that facilities w ith closed-cycle should have no further study or reporting oblig ations for the reasons stated above for entrainment. EPA also disagrees with the comments suggesting no studies, monitoring, or evaluation of further technologies need be conducted. First, a prope rly operated CCRS could withdraw more than 100

Essay 15 87mgd each day, and could still be imposing an AEI. Second, installing the technology does not mean it is being properly operated; EPA found seve ral instances where a cooling tower has been installed but not operated to minimize the volume of withdrawn. See 77 FR 34319. Therefore, in the final rule facilities with CCRS must demons trate the makeup water has been minimized; see § 125.94(c). Third, even where the facility alre ady has CCRS, the characterization studies and source water baseline data may i ndicate additional measures are n ecessary for shellfish, fragile species, or other aquatic organisms. The Dir ector may make such a determination under § 125.94(c)(8) and (9). Finally, the record shows that for at least 10 percent of all facilities, the cooling water intake system may be comprised of more than one technology, and that 24 percent of manufacturers and 33 percen t of electric generators have more than one CWIS; see TDD section 4.1.4. The rule provides the flexibility for the facility to demonstrate compliance for each intake, or at the facility level, but in either case further evaluation is necessary to determine whether the IM standard has been met.

The final rule establishes a standard for impingement mortality (with seven compliance alternatives) that must be achieved by all in-scope facilities. EPA has fou nd that each alternative meets or exceeds the level of performance ach ieved by the selected BTA technology. See the preamble for discussion of each of these alternatives and the basis for each.

Riverkeeper opposes a site-specific approach to determining BTA for impingement. Riverkeeper stated that closed-cycle cooling is the best approach to reducing impingement and barring that, reducing the intake velocity is next most effec tive; they also argue that facilities should employ both technologies. Riverkeeper stated that EPA’s own data show that a large number of facilities already meet the velocity standard and that th e percent reduction in impingement is higher than that of the performance standard for traveling sc reens. Riverkeeper also stated that the rule should not allow degraded waters to infl uence the process for determining BTA.

EPA has established a national impingement mortality standard in today’s final rule and, as such, agrees that a site-specific requirement for impi ngement mortality is not BTA; see the preamble for more information. While the BTA impingement mo rtality standard for the final rule is based on the performance of modified tr aveling screens, the rule does not require the installation and operation of this technology. Instead, EPA provided seven alternatives means of achieving the performance associated with well-operated modi fied traveling screens. EPA agrees that both closed-cycle cooling and reduced intake veloc ity are very effective in reducing impingement, and therefore impingement mortality. Therefore the final rule includes both of these technologies as compliance alternatives. EPA did not base th e impingement mortality performance standard on these technologies for existing units as sugge sted by the commenter, because the record demonstrates that these technol ogies are not available on a nati onal scale. See the discussion above and in the preamble on the availability of closed-cycle cooling. See Essay 17 and the TDD for a similar discussion on the national availability of reduced intake velo city technologies, and the preamble for further discussion of why low intake velocity is not BTA.

Riverkeeper supports their assertion that intake velocity should be the technology basis for the BTA impingement standard for by citing data from the Phase I rule on the extent to which new facilities have low intake velocities. EPA notes that the data cited referred to facilities constructed in the prior 15-year period. EPA agr ees that newer faciliti es tend to have lower intake velocities, but today’s fi nal rule addresses all existing f acilities, including those that are

Essay 15 88much older, and the percentages of existing complia nt facilities cited is much lower. In fact, EPA’s cost analysis (which used industry survey data for the entire universe of existing power generating facilities) estimated that approximately one-third of the in-scope universe would comply using the design intake velocity option; some existing intakes al ready have a compliant velocity and others would inst all a technology to redu ce their intake velocity to 0.5 fps. EPA agrees that reducing the intake velocity is a hi ghly effective approach, but as noted above, it is not an available technolo gy for many facilities and therefore is not appropri ate to consider as the basis for a national BTA for impingement. EPA ha s identified a most effective technology for IM that is available at most facilities, established a perfor mance based on that technology, and then identified a number of ways in which this level of performance can be achieved. Intake velocity and closed-cycle cooling both achieve th e required level of perfor mance, therefore such technologies (where feasible at a facility) would allow existing units to comply with the final rule IM requirements. EPA notes that the final rule is not based on the condition of the receiving waters (or intake waters), as all waters are tr eated equally in terms of establishing appropriate requirements.

EPA disagrees with commenters that facilities that employ closed-cycle system that are properly operated and maintained should additionally have to meet an impingement requirement based on reduced intake velocity. As explained above, EP A concluded reduced intake velocity is not available nationally. Comments and data received on th e proposed rule show that not all facilities with CCRS would meet the 0.5 fps in take velocity. Furthermore, EP A’s record demonstrates that facilities that utiliz e such closed-cycle cooling syst ems have correspondingly reduced impingement (and entrainment) mortality by approxi mately 96 percent. Therefore, any additional requirements on facilities with properly operated CCRS would further reduce IM by at most 1 to 4 percent. EPA has determined the BTA for IM as discussed above; properly operated CCRS achieves the BTA IM standard. Therefore EPA disa grees that all existing facilities with CCRS should be additionally required to de monstrate reduced intake velocity.

Industry commenters stated th at the proposed rule’s impi ngement requirements are too inflexible. Commenters further suggested that s ite-specific approach for impingement mortality (including consideration of costs and benefits) would be preferable, appropriate given EPA’s history of site-specific evalua tion of BTA, and less costly to facilities and consumers.

As discussed in Essay 24 and as noted in the preamble, EPA disagrees th at the IM requirements are inflexible. EPA did not propose and is not toda y establishing requirements to install modified traveling screens. As noted in the preamble, EP A has promulgated a final rule with seven IM compliance alternatives, including complian ce alternatives for both pre-approved and streamlined technologies as suggested by comme nters. The last alte rnative provides an opportunity to demonstrate new a nd innovative technologies and appr oaches that achieve the IM performance standard. EPA concludes the rule provides ample flexibility. EPA also disagrees site-specific IM is less costly that EPA’s flexible final rule; in some cases the burden of data collection studies, biological a ssessments, pilot studies, site-s pecific engineering assessments, and other factors makes the site-specific IM de termination process alone more costly than a facility implementing one of the seven complian ce alternatives. As discussed in the preamble, EPA has found the suite of technologies for IM to be affordable, available, feasible, demonstrated and effective. Therefore, EPA disagr ees that a site-specific approach is appropriate for impingement mortality. See below for a disc ussion of the role of costs and benefits.

Essay 15 89Role of Costs and Benefits in Determining BTA Many commenters stated positions on how (and whether) EPA should consider costs and benefits in the final rule. These comments gene rally fit into several categories, as discussed below.

Cost

‐ Benefit/Benefits Must Justify the Costs/Maximize Net Benefits for the Final Rule Environmental commenters state that EPA shoul d not rely on cost-benef it analyses and should prohibit Directors from consider ing cost-benefit analyses. They also stated that cost-benefit analysis is intended to be a scr eening tool to rule out absurd re sults and not to make significant regulatory decisions; as a result, EPA’s reliance on cost-benefit is i llegal. Riverkeeper also stated that there was no cost-benefit an alysis for Phase I or for offs hore industries in Phase III and therefore none should be conducted in the existing facility rule. Riverkeeper argued that EPA has overestimated compliance costs and underestimated th e benefits of the rule, resulting in a skewed cost-benefit ratio. They state that , with partial corrections to these analyses, Option 3 becomes the clear choice for the final rule, as the benef its exceed the costs. Riverkeeper argued that EPA stated that Proposal Option 1’s be nefits were justified by the cost s, but did not state a conclusion for the same test for Options 2, 3 and 4. Environm ental commenters also noted that there is a significant burden on the Director, who will be re quired to make decisions with little to no guidance, adding that states lack the expertis e and resources to conduct the same extensive analyses of costs and benefits as those conducted for the final rule. They argued that EPA has spent years developing its analyses (even exceeding the level of effort typically afforded to a BPT threshold) and cannot reasonably expect that states can reproduce this level of effort and will therefore likely fail to fully account for bene fits to be gained by closed-cycle cooling. Environmental commenters also stated that, if cost-benefit analyses ar e allowed, EPA should set limits on how they will be implemented. They furt her stated that OMB altered language related to considering costs and benefits. Some envi ronmental commenters stated that EPA should conduct a break-even analysis when costs exceed the benefits.

Many industry commenters stated that the final ru le should have benefits that are commensurate to or greater than the costs of the rule. Some commenters argued that EPA has not explained its rationale for taking action, asserting that th e costs are not justif ied. Similarly, several commenters stated that EPA had failed to comply with Executiv e Order (EO) 13563, titled “Improving Regulation and Regul atory Review.” Some comments stated that EPA had not maximized the net benefits, as directed by the EO. Other commenters argued that EPA had not demonstrated that the rule’s costs were justif ied by its benefits, as directed by the EO. Many commenters also pointed out th at the Entergy decision permits EPA to consider costs and benefits and that EPA should do so, in keeping with past practice for 316(b). These commenters noted that the cost-benefit ratio for the proposed rule was approxi mately 21 to 1 and that that ratio did not include any consideration of cost s to address entrainment, which one commenter noted was inconsistent with EO 12291. Some commenters stated that Option 3 had the worst cost-benefit ratio among the options considered, suggesting that th e application of closed-cycle cooling is not an appropriate na tional requirement and that a conve rsion to closed-cycle cooling would be applied only in limited circumstances. Some commenters stat ed that the disparity in the costs and benefits for the rule failed the Administ rative Procedure Act’s te st of “reasonableness.” Another commenter stated that EPA had pre-ju dged the outcome of the incomplete stated preference survey and used those results to concl ude that the rule’s benefits justify the costs.

Essay 15 90Some commenters provided a summary of EPA’s guidance docume nt for conducting cost-benefit analyses or a detailed discussion on how to conduct a cost-benefit analysis.

A state commenter noted that state policy was to conduct a cost-benefit analysis and discourage negative impacts to the state economy and empl oyment. The commenter argued that “benefits justify the costs” would constitu te backsliding, as well as place an undue burden on the Director to justify any action. Another state commen ter added that EPA should eliminate any requirements to evaluate costs and benefits at th e facility level, given that EPA was unable to develop a complete analysis for the final rule.

Other commenters argued that EPA should define the threshold for “benefits justify the cost” as being comparable to one another or to have a net positive benefit. Another state commenter preferred to continue using th e “wholly disproportionate” thre shold, as it had already withstood several legal reviews Several commenters stated th at the threshold of “ben efits justify the costs” is superior to the current threshold of “who lly disproportionate” and Phase II’s “significantly greater.” Some commenters advocated instead using the threshold of “benefits exceed the costs.” One commenter stated that the Clean Water Act did not support th e use of the “wholly disproportionate” test. Another commenter noted that in the Phase II rule, EPA determined that a cost-benefit ratio of 5 to 1 was considered “whol ly disproportionate” and had no basis to change this threshold in the final rule. Other comme nters noted that, in the Phase III rule, EPA concluded that the costs for regulating la nd-based facilities (small power plants and manufacturers) was not justified, ye t the Phase III rule had a cost-ben efit ratio that is very similar to that of the final rule. They added that EPA has not explained why the underlying logic of these decisions has changed.

EPA agrees the appropriate standard is wholly disproportionate. EPA notes commenters have confused this with the EO 13563, as discussed below. In Riverkeeper II, the court decision states “because cost is not supposed to be a pa ramount consideration in determining BTA, see Riverkeeper I , 358 F.3d at 185, the “significantly greater than” standard poses substantial concerns.” The court also noted discomfort with the “significan tly greater than” standard of 40 CFR 125.94(a)(5)(i), given the histor ical applicability of a “wholly disproportio nate to” standard and the use of the latter standard in the Ph ase I Rule. EO 13563 directs EPA and other Federal agencies to identify and use the best, most i nnovative and least burdensome tools for achieving regulatory ends. In its regulatory actions, agencies “must take into acc ount benefits and cost, both quantitative and qualitative,” and to th e extent permitted by law, only promulgate regulations that are based on “a reasoned determination that it s benefits justify its costs (recognizing that some benefits and costs are di fficult to quantify)” (see section 1(b)(1)). EPA has improved its analysis since Phase II, and has us ed the best available sc ience regarding widely accepted tools and data 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. EPA has concluded that the be nefits estimated for the first two categories are generally complete, while the benefits estimated for the latter two categories are far from being complete for a number of reasons. For ex ample, the nonuse benefits consider only one species and only for the northeas t and middle Atlantic states. See preamble section VI.F for further discussion. The Phase II rule, like today’s final rule, had many benefits that were not quantified and were therefore not monetized. As a result, the Phase II cost-benefit ratio cited by commenters provides an incomplete comparison of the costs and benefits. With respect to Phase

Essay 15 91III, EPA based the decision on its judgment that th e monetized costs associated with the primary option under consideration are wholly disproportiona te to the monetized environmental benefits to be derived from that option. EPA was unable to assign a monetary valu e that fully captured the value of avoiding the environmental impacts that EPA had identified because the necessary information was not available. EPA did attempt in the Phase III rule to monetize the loss of forage fish indirectly through its impact on re ducing commercial and recreational harvests, and found these impacts to be generally small. However, this approach does not capture the value that society may place on these fish for their own sake. Therefore, EPA only considered nonuse benefits qualitatively. EPA has since collected additional data, conducted supplemental analysis and explored additional regulator y options. EPA explained the basis for its proposed rule and solicited comment. Therefore EPA di sagrees that the rationale for any changes to the Phase II or Phase III rules has not been provided.

Other commenters stated that EP A should present a full cost-benef it analysis in the final rule. Some commenters noted that EP A conducted a summary-level cost -benefit analysis in the proposed rule, yet still selected an option that had a worse cost-b enefit ratio that other options.

For the final rule, EPA estimated both the complia nce costs and its projected benefits and has fully considered both analyses in its deci sion-making. EPA recognizes that commenters expressed a wide range of opinions on how to consider costs and benefits in the final rule, noting that there are many considerations, resources, an d precedents to bear in mind. In fact, Justice Breyer’s opinion in Entergy recognizes the difficulty associated with monetizing benefits. After evaluating these comments, past practice of impl ementing 316(b), and case law, as explained in the preamble, EPA concludes it ha s permissibly and appropriately considered costs and benefits in this final 316(b) rule. EPA notes that cost -benefit analyses in ot her regulations are not relevant. EPA disagrees that previous Agency d ecisions from the Phase I or Phase III rule are binding for this final rule because EPA has coll ected new data, developed new options, solicited further public comment, has new case law, and is considering the more complete body of information and analysis now before it. As recognized in Entergy , under section 316(b), EPA may consider, but is not required to consider, costs and benefits even if benefits are nonmonetized. In this case, EPA exer cised its discretion to consider monetized cost and benefits as one of many other factors it evaluated in se lecting the final regulatory option.

EPA also disagrees that it has not complied with EO 13563 or the APA. The Agency considered a number of regulatory options, in cluding a consideration of the costs and benefits for each option, and solicited comment on all aspects of the rule. As described in the preamble and in other responses to comments, EPA has consider ed both the monetized and non-monetized costs and benefits in developing the final rule a nd has therefore fully complied with EO 13563. EPA disagrees that comparing only mone tized costs to monetized benefits is an appropriate test that trumps all other Clean Water Act factors for eval uating regulatory options; th is casts a shadow of doubt onto any “benefits that justif y the costs,” “maximize net bene fits,” or “benefits that are commensurate with the costs” comparisons that are strictly numeric. EPA notes that the monetized benefits in the final ru le do not capture all of the bene fits that are projected to result from today’s rule. For this reason alone, a comp arison of only the monetized costs and benefits poses an incomplete evaluation of the full range of costs and benefits that would result from each option considered.

Essay 15 92Additionally, many commenters cited only part of the text of the EO; the EO subsequently continues: “In applying these principles, each ag ency is directed to use the best available techniques to quantify anticipated present and futu re benefits and costs as accurately as possible. Where appropriate and permitted by law, each agen cy may consider (and discuss qualitatively) values that are difficult or impossible to quant ify[.]” As described in the preamble, EPA has applied the principles spelle d out in EO 12866 and EO 13563. Th e EPA assessed total costs and benefits of the regulatory option fo r the final rule and has reasonabl y determined that the benefits of the rule justify the costs. In this way, EPA c onsidered both costs, benefits, and the relationship of the two in selecti ng today’s impingement and entrainmen t mortality requirements. While the rule costs exceed the monetized benefits as pr esented, EPA has concluded that the costs do not outweigh total benefits when both monetized a nd nonmonetized benefits are considered. EPA notes that the monetized benefits are only a subset of all benefits. In th e absence of complete estimates of nonuse benefits, EPA estimated partia l nonuse benefits for the final rule using the benefits transfer approach from proposal. This approach is still a par tial estimate, because it concerns only one species in two coastal region s; see the preamble for additional discussion.

EPA disagrees that it has miscalculated the total national monetized costs and benefits (including those for closed-cycle cooling), thus leading to faulty decision-making fo r selecting a regulatory option. EPA has updated its costs and benefit analys es since the proposed rule, solicited data and comments, and fully documented its costing (see the TDD and Essay 21). Therefore the EPA has the best and most recent data available. While costs (and benefits) were estimated and were a consideration while reviewing all regulatory options for the final ru le, they are not the sole or primary factor in selecting BTA. Thus, even if EPA’s estimates of costs and/or benefits are incomplete (which they are to the extent that certain benefits cannot be quantified or monetized) or were found to be incorrect, EPA would not have selected a different regulatory approach. For example, as discussed above with respect to CCRS, EPA concluded cooling towers are not nationally available as a t echnology basis for controlling impingement and entrainment mortality. Therefore CCRS is not BTA irrespective of the nationa l costs, benefits, and/or the relationship of the two.

EPA agrees that a break-even analysis can be a useful tool for decision-making. See Essay 76 for a discussion of the break-even analysis EPA c onducted for nonuse benefits in the final rule.

EPA disagrees that a market-based approach s uggested by some commenter s is a viable solution for evaluating cost-benefit for this rule. EPA e xplored approaches invo lving trading in prior rulemakings; see, for examples 67 FR 17170 (April 9, 2002) for information. As noted in the Phase II response to comment document (see comment 316bEFR.034.027), trading of ecological resources is a far more complicated endeavor than pollutant trading and EPA declined to establish such a program. In EPA’s view, trading is a difficult concept in the context of 316(b). As appropriate, the Director could develop su ch a program on a state or watershed level.

Consideration of Costs and Benefits on a Site

‐ Specific Basis in Establishing
Entrainment Controls ‐ General EPA notes that it considered costs, benefits, and the relationship of the two in its consideration of options for the final rule. Because EPA has not identified a technology basi s that is available, demonstrated, and achievable for a national st andard, EPA determined there is no basis upon

Essay 15 93which to conduct a cost benefit analysis on a site-spe cific basis. EPA notes th is is in contrast to IM, where a technology has been id entified as available, demonstr ated, and achievable, therefore a cost-cost test is not necessary. The impingeme nt mortality performance standard provides 7 compliance alternatives, and additionally provide s each facility the flexib ility to comply at a facility level or at an intake level. The IM pe rformance standard is economically achievable. And the costs of IM at the facility level have lo w variability. See TDD Chapter 12, the proposal at 76 FR 22186, and the EA for more details. As such, th e following discussion is specific to sitespecific entrainment standards only.

As explained previously, the fi nal rule requires that the Di rector must establish the BTA entrainment requirement for a facility on a site-s pecific basis. The require ments must reflect the Director’s determination of the maximum reducti on in entrainment warranted after consideration of all factors relevant to the BTA determination at the site and must incl ude consideration of the specific factors spelled out in the final rule. Thes e considerations and factors are spelled out in the preamble and final rule. Some of the comments above relate to site-s pecific considerations for entrainment.

Some noted that states are ill-equipped to c onduct these types of site -specific entrainment analyses and that it would cr eate an undue burden on the st ates. EPA disagrees. See above discussion regarding burden on states and the Di rector. Furthermore, EP A notes that permits containing 316(b) conditions have been issued for over 30 years under a BPJ-based approach that inherently considered costs and be nefits in addition to various othe r factors. With respect to cost benefit, the final rule establis hes a process by which relevant sa mpling, studies, and information is submitted to the Director. This process is expe cted to result in the appropriate information needed by the Director, and will likely reduce hist oric levels of burden on states. EPA notes that there is a long history of Direct or discretion and public particip ation in 316(b) permitting, and that the rule establishes a process (including a tr ansparent, reliable peer review process) to provide consistent review, determ inations, and permit issuance. EP A notes that while the process requires a cost-benefit analysis, in the event th at the facility does not submit complete and relevant data to evaluate cost benefit, the Dire ctor may reject the incomplete data. Further, the Director may choose how to consider cost-benefit and what weight to afford it in determining entrainment standards.

In response to state commenters, as noted above, the Director has discretion in how to consider cost-benefit analyses in determining appropriate permit requirements. As such, the final rule does not interfere with existing state policies on the treatment of costs and benefits. EPA disagrees that the final rule constitutes backsliding, as the Director may choose how to consider costbenefit and what weight to afford it in determ ining entrainment standards. EPA disagrees that additional cost-related variances are necessary, as the final rule already requires the Director to consider costs and benefits.

One commenter considered it important that pe rmit writers should obtain cost estimates that reflect the specific characteristics of each site an d technology application and was concerned that the cost tool that EPA used in developing nationa l costs would be used in lieu of cost estimates that reflect the specific charac teristics of each site. They al so recommend that potential electricity rates and reliability concerns be in cluded in site-specifi c assessments. Another commenter was concerned that nonu se benefits could be consider ed on a site-specific level. A

Essay 15 94commenter also stated that EP A did not conduct formal sensitivity analyses on most cost or benefit parameters.

As noted above, the final rule establishes a fram ework for the Director to determine entrainment requirements on a site-specific basis, using information submitted by the facility on a variety of factors. EPA disagrees that the co st tool used for national level costing is a concern because the final rule at § 122.21(r)(10) requi res an engineering study, an e ngineering cost estimate, and furthermore specifies criteria for conducting the cost evaluation. In addition, the final rule at § 122.21(r)(13) requires the study must be externally peer reviewed. Finally, at § 125.98(f), the final rule states that the proposed permit must include the Director’s proposed entrainment determination. As such, the site-specific cost esti mates, potential effects to electricity rates and reliability, and other information that may be c onsidered by the Director when determining BTA will be subject to public scrutiny. As noted by th e commenter, site-specific assessments of costs and benefits can vary, EPA is not required to do so, and therefore did not evaluate information on that scale in establishing the final rule. EPA is aware that the use of site-specific cost estimates may be overstated, as historically facil ity developed cost estimat es do not a ppropriately represent the incremental costs of compliance. EPA exp ects the peer-review and other requirements in the rule discussed above will ensu re facility level cost estimates are properly determined.

With respect to sensitivity an alyses, EPA disagrees that form al, quantitative analyses are required, according to guidance from OMB for re gulations with a total cost under $1 billion. (See OMB Circular A-4, DCN 10-3266.) Instea d, EPA has discussed th e uncertainties and limitations in its analyses; for example, see the T DD. EPA identified the major cost drivers of the rule, and these uncertainties w ould not have changed the outcome of the final rule decisions. EPA has not identified any other parameters upon which to conduct a sensitivity analysis, and the commenter did not provide any suggesti ons. Therefore, even if EPA had conducted additional sensitivity analyses, the EPA does not e xpect results of such analyses would have changed the outcome of the final rule decisions.

Comments Specific to Cost Industry commenters generally stat ed that the proposed rule was overly expensive (some asserted costs were prohibitive), that costs were underes timated, compliance costs could lead to higher costs for consumers, or could lead to facility closures, and all without a commensurate increase in benefits. Some commenters provided facility-specific cost estimates for technology installations. These commenters also stated that these cost would be incurred at facilities where the facilities believe no adverse environmental impacts are occurring. Commenters also stated that EPA neglected to include costs for entrainm ent controls in its an alysis. Similarly, these commenters claimed that facilities with certain technologies or intakes in certain locations would not require any action and that the national-scale analysis us ed by EPA masks these site-specific details. Other commenters added that effects out side of 316(b) affect water quality and aquatic organisms and would not be reflected in EPA’s an alysis. Some commenters asked EPA to clarify that “social costs” include capit al costs, monitoring and O&M.

Essay 15 95Some commenters noted that ther e are significant costs associated with compliance for other rules. Other commenters noted that EPA’s anal ysis does not include sufficient data on the category of “other industries” and this category should th erefore be excluded from the regulation.

Some environmental commenters stated that even the highest cost options examined resulted in nominal increases on a per-household basis. Envir onmental commenters also noted that EPA has not considered certain categories of costs, such as the costs associated with once-through cooling and the economic impacts of fish kills. Anot her environmental commenter stated that oncethrough cooling amounted to a subsidy for industria l facilities.

As described in the preamble, EA and Essay 21, EPA has conducted a thorough analysis of the incremental costs to comply with today’s fina l rule. That is, the costs are those that EPA estimates facilities would incur in addition to existing costs to comply with today’s rule. EPA notes that many commenters did not provide a de tailed description of their cost estimates, making it impossible for EPA to evaluate some co mmenter’s submittals. To the extent facilities and vendors provided detailed costs, EPA considered such data in combination with the rest of its record for estimating costs for the finale rule. As discussed above, facili ty-level cost estimates are often higher than EPA’s cost estimates because they do not properly reflect the incremental costs of compliance. For example, a facility that already employs modified traveling screens with smooth mesh and fish friendly buckets would not be costed for installation of new modified traveling screens. In some instances the data provided by commenters was not comparable due to inconsistent analytical methods pr ovided in comments such as inte rest rates, annualization terms, useful life of equipment, and commenter assumptions regarding labor hours and compliance monitoring EPA’s final rule cost estimates are based on all availa ble data, including appropriately documented cost data provided by commenters. Therefore EPA disagrees that the costs are significantly understated, and in light of the cost driver sensitivity analysis discussed above, any small changes in costs would not resu lt in a different decisi on. EPA also disagrees that the costs are unreasonable, as described in the preamble, the EA, and above. Specifically, 86 percent of regulated facilities will incur compliance costs of less than 1 percent of revenue. On average, for a typical U.S. household, the final ru le will result in an annual cost of $1.03 per household. See preamble Section IX for additional an alyses demonstrating the costs of the final rule are reasonable and affordable.

EPA estimated incremental costs for the regulatory options evaluated for today’s final rule. For regulatory options that include d a specific technology basis for both impingement and/or entrainment, EPA estimated incremental costs for those facilities to come into compliance. The regulatory option ultimately selected for today’s final rule includes performance standards for impingement mortality and a site-specific determination of entrainment requirements. Because determinations of BTA for entrainment are to be made by the Director on a site-specific basis, EPA has no way to predict the outcome (and theref ore incremental costs) of these site-specific permit proceedings. As is common with EPA national technology based regulation development, costs associated with site-specific requirements are not estimated as rule costs because, in absence of nationally applicable technology base d regulations, permitting authorities are already required to determine technology based requirements on a best professional judgment basis, and facilities are already required to meet such requirements. Theref ore this rule would not impose any incremental compliance costs. The rule does require certain studies and information to be submitted, and the rule does include the costs for these activities. The costs for the final rule

Essay 15 96therefore include incremental costs associated with the impingement mortality performance standard and incremental costs associated with the site-specific entrainment process including characterization study requirements. Because the Dir ector will consider various factors including costs and impacts in determining site-specific BTA for entrainment, the commenters concerns will be most appropriately addressed on a site-s pecific basis. Nevertheless, EPA did estimate costs for various entrainment technologies. Fo r illustrative purposes, EPA analyzed two hypothetical outcomes for the proposal (76 FR 22211).

EPA disagrees with the comments regarding “other ” industries. EPA estab lished a model facility costs analysis, and has assigned ea ch model manufacturing facility a weight of greater than one; this modeling approach ensures a ll in-scope facilities are counte d in EPA’s analysis. EPA notes that the Phase III rulemaking, the 2011 propos ed rule, and the 2012 NODA all provided opportunities for comment and data. EPA speci fically solicited comment on the “other industries.” EPA did not receive new data upon which it could consider additional model facilities. EPA has therefore established a reas onable approach to conducting the analysis and has made a reasonable effort to re present all in-scope facilities.

Benefits Some industry commenters stated that benefits were overstated in the proposed rule. Others stated that EPA’s assessment of benefits in the proposed rule was incomplete, as the stated preference survey had not yet been conducted in all regions nor ha d the analyses been completed, thereby depriving the public the opportunity to comment on the analysis. Some commenters provided site-specific estimates of benefits projected to be realized through compliance with the rule.

A state commenter argued that the complexity of EPA’s benefits analysis would be unlikely to be repeated at the state level, making it difficult for a Director to pursue closed-cycle cooling as an entrainment control technol ogy at a site-specific level.

Some environmental commenters (including Rive rkeeper) stated that EPA has underestimated the benefits of closed-cycle cooling. Similarl y, these environmental commenters noted that EPA’s benefits analysis is incomplete, as it does not include the value of entrainment reductions for many facilities under some options. Envir onmental commenters added that EPA cannot ignore the results of the stated preference survey, however preliminary they may be. Environmental commenters also stated that EPA should weigh impacts to threatened and endangered species as significant, given that the loss of even a single individual can be a significant effect on th e remaining population.

As described in the preamble, BA and Essays 70, 71 and 73 through 78, EPA has conducted a thorough analysis of the bene fits as a result of today’s final ru le. EPA disagrees that the benefits are overestimated, as described elsewhere, and EPA notes that commenters did not explain how EPA had overstated benefits. Because EPA did not calculate benefits for th e final rule on a sitespecific basis, it is not possible to directly comp are EPA’s analysis with facility-specific values submitted by some commenters. Finally, as discu ssed above, EPA disagrees that only monetized benefits should be considered.

Essay 15 97One commenter argued that EPA should use a market -based approach (such as cap and trade), as this would likely maximize the ne t benefits. The commenter added th at, in the absence of such an approach, EPA must weigh the advantages and disadvantages of a site-specific approach.

EPA disagrees that a trading program would maximize net bene fits. EPA notes that section 316(b) of the Clean Water Act intends to minimi ze the adverse environmental impact associated with cooling water intake structures. EPA consid ered a trading program in response to comments in the now remanded Phase II rule (see Phase II RTC at 316bEFR.034.027). The premise is that such a program must result in environmental perf ormance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved under the requirements established at § 125.94. To this end, EPA expected approval would only occur for those trading programs which allow trades within indi vidual watersheds and trade for numbers of the same species. However, such an approach would not minimize AEI, because under such a program there is no incentive or requ irement for a group of facilities (involved in the trade) to do any more than the bare minimum. Such an approach does not maximize net benefits because it neither maximizes benefits nor reduces compliance costs more than EPA’s final rule approach. Under EPA’s approach to th e final rule, the facility has seven compliance alternatives for IM. The first four alternatives are based on pre-approved technologies or superior performing technologies, such as CCRS or intake ve locity. Facilities util izing these technologies are already achieving some of the highest reductions in IM possible, and their benefits are likely close to maximum. Under these alternatives compliance is already streamlined, such as no requirement for biological compliance monitorin g. The costs to these fa cilities are already minimal. Under another two of the compliance alternatives (modified traveling screens and systems of technologies), the technologies select ed by the facility must undergo an optimization study. Because the facility will be optimally operating these tec hnologies, the highest reductions in IM possible are already obtained. Again, the costs are already reduced as there is no requirement for biological compliance monitoring or other monitoring in perpetuity. As a result, EPA’s final rule has minimal costs for the roughly 99 percent of facilities expected to choose one of these six compliance alternat ives, and the highest possible pe rformance is obtained. Trading would require biological monitoring by each faci lity, an endeavor cited as expensive by commenters, and this burden alone makes it unlikel y such an approach could come close to the net benefits of EPA’s selected approach. EPA further notes a trad ing program that includes other stressors such as habitat alteration, dredgi ng, coastal development, overfishing, industrial pollution, nutrient pollution, wastewater runoff, and climate change might not satisfy all requirements because these types of trades introduce comparability and implementation challenges that would be difficult to overcome. EPA also questions whether such a program would be consistent with EPA’s Water Quality Trading Policy. Thus, it is questionable whether such a program could even meet the requireme nts for approval. EPA agrees that there are advantages and disadvantages to each approach considered in the rulemaking, and has done so. See Section VI of the preamble for EPA’s rationale for decision-making.

Other Elements of BTA

Variances Other commenters stated that EPA should create a variance for economic considerations on a site-specific basis, asserting that such varian ces were permitted by the U.S. Supreme Court in

Essay 15 98Entergy , and should then provide detailed guidance to Directors on the decisi on criteria to use in considering costs and benefits. Other commenters s uggested variances such as a cost-cost test or fundamentally different factors to avoid unreas onable results. Some commenters argued that EPA should allow a site-specific cost-benefit test to determine compliance with the final rule, including specific guidance to th e Director to reject any en trainment technology whose costs exceeded its benefits or that did not maximize the net benefits. These commenters noted that such a site-specific determination would provide the greatest flexibility and maximize the ability to consider costs and benefits

. Some commenters stated that the impingement mortality requirements should also be subject to a cost-b enefit test. Other commenters argued that if certain cost (or feasibility) criteria were not me t, a facility should not be obligated to examine certain compliance options in detail.

EPA disagrees with these comments. See § 125.31(d) for factors that may be considered if a facility is fundamentally different, as well as those factors that may not provide a basis for a variance. Under § 125.31(b)(3), a requ est for less stringent requirem ents may be approved only if compliance would result in a cost wholly out of proportion to the costs considered during development of the standards; or non-water quality environmental impacts more adverse than the impact considered during development of the standards. EPA finds that, for the IM requirements, neither of these conditions would occur. While none of the IM compliance al ternatives will result in incremental non-water quality environmental impact that are adverse, EP A notes the rule at § 125.94(c)(12) already addre sses low CUR units that may be im portant for grid reliability. EPA has identified technologies for IM that are demonstrated, achie vable, and affordable. EPA’s flexible approach includes 7 compliance alterna tives, including credits for existing technologies and intake location. EPA’s final rule also incl udes a de minimis provision where rates of impingement or so low as to make additional controls unwarranted. As a result, the compliance costs for the final rule are less than those at proposal, and commenters di d not provided any data demonstrating compliance costs for IM at any fa cility are wholly disproportionate to EPA’s proposal costs. (EPA notes that a permitee’s ab ility to pay is not an allowable basis for a variance.) With respect to comments pointing out th at the Phase II rule had such provisions such as cost-cost, EPA notes the Phase II rule also had technology requirements for entrainment, that the costs of these technologies is considerably higher than the cost s of today’s final rule. This is not the case here. In consideration of all of these features of the final rule, EPA concludes that an additional variance provision is unnecessary.

Availability and Flexibility of Rule Requirements Many commenters stated that the proposed rule only provided for two compliance alternatives for minimizing impingement mortality -- an im pingement performance standard and a maximum intake velocity standard -- and that achievemen t of these standards were not available at all facilities. Commenters requested that EPA identif y pre-approved technologies for impingement and that these technologies have minimal perm it or monitoring requirements associated with them. Other commenters requested that the rule provide flexibility for facilities with multiple intake structure configurations . Other commenters noted that EPA should consider previous reductions in impingement in evaluating impinge ment mortality performance at a particular facility.

Essay 15 99EPA disagrees that the performance standard is not available at all f acilities. EPA notes many commenters mistakenly assumed modified traveli ng screens with a fish return were required by the rule. Other commenters asserted that retrofit CCRS was the only way to meet the performance standards. As discussed in th e NODA (77 FR 34319) and a ddressed in Essay 24, neither is not the case. EPA also made it clea r in the proposal and NODA that consideration of other technologies, including inta ke location and alternative tec hnologies, were intended as an integral part of the IM perfor mance standard; see 77 FR 34321 – 5. EPA’s record shows there are many IM technologies (as well as combinations of technologies) that ar e demonstrated. Based on EPA’s technical survey, site visi ts, and other information in the record, EPA concludes that one or more technologies are avai lable for every facility. While commenters provided data and examples where one or more technologies may be more costly or difficult to install at a particular site, none of the commenters provided data or id entified a facility in which the IM performance standards could not be achieved. For the final rule, as discussed above the BTA standard for impingement mortality includes seven compliance options that, in addition to the impingement mortality performance standard, include pre-a pproved technologies as well as options for streamlined compliance. The alternative at § 125.94(c)(6) allows for c onsideration of other technologies resulting in prev ious reductions in impingeme nt. In the perm it application requirements at § 122.21(r)(6), the owner or ope rator must identify the chosen compliance method for the entire facility; alternatively, th e applicant must identif y the chose compliance methods for each CWIS.

As noted, the final rule provides a number of compliance alternatives for meeting the impingement mortality standard. For example, th e final rule at § 125.94(c) identifies three preapproved IM technologies (closed- cycle, design intake velocity of 0.5 fps which includes most wedgewire screens, and offshor e velocity caps) for which there may be reduced permit application requirements and for which no biolog ical compliance monitoring is required. The final rule further streamlines compliance for thos e facilities using the specific technology that forms the basis for the impingement mortality perf ormance standard (modified traveling screens, see § 125.94(c)(5)). Another alte rnative at § 125.94(c)(6) includes conducting an optimization study for a “system of technologies” that achieves the required le vel of performance. A facility may demonstrate that its existing technology redu ces the rate of impingement and therefore qualifies for a “credit” towards meeting impingement requirements as part of this alternative.

Another commenter stated that national requir ements would reduce the permitting authority’s burden, while providing a higher leve l of protection. EPA notes that the final rule establishes national standards for minimizing impingement mo rtality and entrainment. In the case of the standard for minimizing impingement mortality, there are seven different options, each has a clearly described information requirements for pe rmit submittal and how to comply is either apparent or spelled out. As discussed above, in the case of the BTA standard for entrainment, the final rule establishes a framework for facilities to gather data, conduct studies, and obtain external peer review, along with a process by which the Director considers certain factors and establishes appropriate entrainment controls. EPA has reduced or streamlined the burden on facilities as compared to the proposed rule. For example, as noted above, the pre-approved compliance alternatives will great ly reduce monitoring costs, as well as simplify compliance and oversight by the Director. EPA agrees that each of these national standards reduce permit authority burden.

Essay 15 100Many commenters stated that EPA should determin e if an adverse environmental impact is occurring before taking action. EPA has determined impingement and entrainment are the “adverse environment impact” of c ooling water intake structures th at its section 316(b) standards should address. Studies in EPA’s record show impingement and entrainm ent occur at CWIS of all types, sizes, and locations. Therefore all facilities with a CWIS have the potential for causing AEI. EPA disagrees that the presence of co mmunity- or population-level impacts is required before an AEI has occurred. This has been the EPA’s consistent position in prior rules and the Second Circuit in both Riverkeeper I and Riverkeeper II has sustained this position. See Essay 16 for more detailed discussion.

Some commenters state that the proposed rule (by not addressing entrainment) will engender a “race to the bottom” among states , contrary to the goals of the Clean Water Act. Another commenter stated that the proposed rule does no t guarantee that impacts will be minimized. EPA disagrees and notes that the final rule has been structured in a wa y that provides facilities and the Director with the best possibl e tools to minimize impacts at each site, including addressing entrainment on a site-specific basis. In the cas e of the BTA impingement mortality standard, EPA based the standard on the performance of modified traveling screens. In the case of the BTA entrainment standard, EPA concluded ther e was no single, nationa lly available technology. Instead, the BTA standard establishes a framewor k for studies and information, along with peer review, and requires a site-specific proceeding in which the Director must evaluate certain factors. The EPA concluded that the site-speci fic proceeding mandated by the E standard will reflect, among other things, the variability between sites including species, geographical location, CWIS operation, technologies and practices already in place, and intake location.

Many commenters stated that EPA appears to have identified 125 mgd as the flow threshold for the occurrence of adverse impacts and that any facility below that threshold should be presumed to employ BTA for both impingement and entrai nment. Other commenter s suggested that EPA conclude that all facilities w ithdrawing less than 125 mgd to be compliant with the rule, as the benefits of including these faciliti es in the universe of affected facilities would likely not justify the costs. Commenters noted that this would a llow the Director to focu s on higher impact sites, while still allowing some degree of site-specifi c requirements on an as needed basis. Other commenters stated that EPA has provided no evidence of adverse impacts at sites withdrawing between 2 mgd and 125 mgd.

EPA disagrees with each of these comments a nd approaches. EPA’s analysis indicates that greater than 82 percent of impinged fish mortality across all facilities would be prevented by this rule at this threshold. EPA di sagrees that it has not examined impingement and entrainment effects at facilities with flow s under 125 mgd; EPA specifically collected studies during the Phase III rule and considered these studies in its development of the impingement mortality limit in the final rule. 11 The record includes more than 40 studies from facilities with flows lower than 50 mgd documenting IM at such facilities. EPA has defined adverse environmental impact as any impingement or entrainment (i.e., adverse im pacts are not predicated upon flow), as noted in the preamble. Further, the industr y questionnaire demonstrates that such facilitie s are twice as likely to have no controls in place for impingement or entrainment than are facilities with higher

11 See 69 FR 68451 (November 24, 2004) and for a specific example, DCN 10-5554 for a study from a facility with a DIF of approximately 18 mgd and an AIF or approximately 7.5 mgd.

Essay 15 101intake flows, especially those gr eater than 50 mgd. In addition, lower intake flow facilities both by themselves and in aggregate can have similar im pacts to those of larger flow facilities as sizable numbers of fish are impinged by lower flow facilities. Moreover, s ite-specific impacts of lower flow facilities may be si gnificant, particularly where thr eatened or endangered species are present. One state commenter argued that a focus on flow does not necessarily correlate to adverse impacts; for example, a facility with drawing less than 125 mgd might be withdrawing a large percentage of the sour ce waterbody. EPA agrees with th e comment and notes that the Director may require a facility to submit a dditional permit informa tion to address these scenarios, including, where not otherwise applicable , the information required, for example, at § 122.21(r)(8)-(13). EPA’s selection of 125 mgd as a th reshold is not the result of an assessment of biological impacts, but is (in part) an administrative cutoff to ba lance the Director’s need for data against the burden placed upon regulated facilities.

EPA disagrees that costs do not justify the benefi ts of including lower flow facilities. Although smaller flow facilities constitute a larger proportion of the total num ber of the facilities regulated, the total compliance cost for these smaller facilities are only a small portion of the total compliance cost of the rule (for example, $23 m illion at a threshold of 50 mgd). See the TDD and Essay 14 for more information regarding th resholds, including cumulative impacts, low flow facilities that withdraw significan t portions of a waterbody, and ot her impacts. These lower flow facilities, if not subject to the national standard, would still be subject to section 316(b) and thus would require BPJ permit requirements. Thus any perceived aggregate cost savings from setting the threshold higher is minimal. And because the costs are a small portion of the total compliance costs, and for all of the reasons stated above, the costs justify the benefits.

EPA agrees that the Director must consider co sts and benefits in establishing the entrainment requirements, irrespective of the 125 mgd flow thre shold; this is required at § 125.98(f)(2)(v). As noted above, the 125 mgd threshold is not intended to be an indicator of impacts and the Director is authorized to require the additional st udies to facilitate the BTA determination.

A commenter also stated that EPA should determine that facilities meeting the 0.5 fps intake velocity threshold as meeting the entrainment requirements. EPA disagrees, noting eggs and other early life stages of larvae are nonmotile and have not developed an avoidance response, therefore a lower intake velocity is essentially irrelevant. See Essays 17 and 18 for more detailed discussion.

Commenters stated that EPA shoul d not promulgate entrainment st andards at all, as they are burdensome, costly, subjective, and have a poor co st-benefit ratio. Some commenters also stated that a best professional judgment -based approach will lead to inconsistent application of 316(b) across the nation. As discussed above, EPA disagr ees with these points. EPA’s record indicates that entrainment is a significant aspect of a ddressing adverse environmental impacts at cooling water intakes. EPA has not iden tified a single technology that is nationally available to address these impacts. EPA has, however, repeatedly stat ed that the lack of wi dely available technology for reducing entrainment mortality in no way sugge sts that entrainment ef fects are not important. On the contrary, the final rule establishes requi rements to submit data and the framework for the process for the Director to determine the BTA for entrainment at each site.

Essay 15 102Commenters also requested that EPA reconsider the implementation schedule for the rule such that a facility could address both impingement and entrainment at the same time, thereby preventing wasted expenditures. EPA agrees, se e rule requirements for implementation schedule at § 125.94(b) and Essay 22. Some commenters ar gued for separate requirements for nuclear facilities; see Essay 18. EPA disagrees, noti ng that commenters have not submitted data supporting why nuclear facilities need separate requirements; see TDD Chapter 6 and Essays 14 and 19 for EPA’s consideration of subcategories. Some commenters argued in favor of certain flow thresholds for triggering compliance. EPA disagrees, as discusse d above for the 125 mgd threshold; also sees TDD, preamble, and Essa ys 14 and 19 for more information. A commenter stated that EPA should “grandfather” existing fa cilities and instead focu s on new facilities. EPA disagrees, see Essay 10 for legal authority and prea mble section VI Basis for rule; also see Essay 14. Another commenter stated that EPA should not require major changes at the facility and drew a comparison to BACT for air emissions re gulations; EPA disagrees, noting that 316(b) of the Clean Water Act has statutory requirements di fferent than the Clean Air Act. See preamble section III for legal authority and Essay 10.

Some commenters noted that severa l states have an existing 316( b) program, obviating the need for national requirements. For example, one co mmenter noted that Calif ornia has already begun a state policy to eliminate once- through cooling at coastal faci lities. As described in the preamble, EPA is aware of this a nd recognizes that some states have invested significant time in developing NPDES permits and has pr ovided some flexibility in the final rule to incorporate that past effort into the new national requirements . Specifically, § 125.90(c) explicitly states that states can adopt more stringe nt controls than required by Federal Law, and § 125.98(g) in today’s rule acknowledges the work already done by States in ongoing permit proceedings. In response to the comment that a State should not have achieve environmental performance comparable to those that would be achieved under § 125.94, EPA disagrees. While EPA is giving significant flexibility to permitting agencies at th e State level to determine how and what each facility must protect and monitor, it is appropr iate for EPA to set uniform national performance standards. Other concerns raised by the commenter are addressed by EPA’s revised implementation schedule, which marries the time line for impingement controls and entrainment controls.

Other industry commenters suggested other revisions to the proposed rule, including (for example, requirements that vary by waterbody t ype, requirements that vary for manufacturers and other facilities with a low in take flow, consideration of the benefits of once-through cooling, and accounting for variability. The EPA disagree s with commenters’ suggestion that a sitespecific approach for impingement is warranted, mo st notably because there are controls for IM that are available, demonstrated, and achievable; this is not the case with entrainment. See preamble for further discussion. EPA considered many different subcate gories including fuel type, source waterbody type, i ndustrial type, cooling water fl ows, intake location, age of generating unit, and others; see TDD for further discussion. EPA concluded that no subcategorization was necessary or appropriate fo r the final rule, because there are controls for IM that are available, demonstrated, and achieva ble. EPA considered the same approaches to subcategorization for E requirements, but th ere are no demonstrated and available high performing technologies for entrainment, and EPA concludes that th e different factors considered for subcategorization does not change this finding. Also see Essay 19.

Essay 15 103One commenter stated that EPA has inherently acknowledged in its support documents that regional differences in biology preclude the pos sibility of national-le vel requirements. EPA disagrees. EPA’s record shows that BTA for IM is achievable on a national scale at all facilities. See Essay 16A for full discussion of the variabil ity and applicability of the IM performance standards. The technologies forming the basis for the final rule’s pe rformance standards are available, feasible, and demonstrated (see pream ble). Another commenter stated that national requirements should not be developed for waters that do not cross stat e lines; EPA disagrees, noting that the Clean Water Act (and consequen tly, section 316(b)) extends to waters of the United States irrespective of State lines. One commenter stated that the proposed rule would interfere with the operation of vessel traffic and dock operations. EPA agrees in part, for example, some types of screen s in some waterways may interf ere with boating. EPA disagrees that the IM standard is not achie vable, first noting that the facility in qu estion already has an intake structure and is able to operate the facility despite dock a nd vessel traffic. EPA notes that other facilities also have na vigational traffic to contend w ith, and EPA has accounted for additional costs incurred as a result of navigational traffic as one of several types of site-specific factors that make technology upgrades a more “difficult” level of retrofit; see Ch apter 6 in the TDD, identifying additional costs for “difficult” le vel installations. Further, the final rule offers seven compliance alternatives for IM, allowi ng the facility to ta ke into account such consideration in order to accommodate facility-specific circumstances.

Another commenter stated that EPA should integr ate consideration of th ermal effects into the rule framework. Other commenters noted the sec ondary effects associated with implementation of section 316(b) controls in re ducing thermal discharges from i ndustrial sites. EPA agrees that thermal impacts can be an important consid eration but has not included any specific considerations in the final rule, aside from a requirement to consider thermal effects in a facility’s permit application materials. Therma l impacts are typically addressed under section 316(a), a different part of the Clean Water Act. EPA notes that any associated reductions in thermal discharges may well be a factor in permitting determinations under section 316(a). Reduced thermal discharges was not a considera tion in the EPA’s determination of national BTA standards for E, because EPA did not identify any technology for E that was demonstrated, available, and achievable. Therefore, EPA did not need to consider reduced thermal discharges when comparing different technologies.

Some commenters stated that EPA has not properly accounted fo r aquatic species in the Pacific Ocean or other locations. EPA disagrees; as noted in the preamble and Essay 16A, EPA reviewed many studies with impingement mortality data in developing the final rule and found no reason to subcategorize facilities by these asse mblages for the purposes of a national rule. In fact, many of the species in eith er the Atlantic or Pacific loca tions exhibit similar physiological, ecological and behavioral trai ts and are therefore a reasonable surrogate for examining impingement and entrainment effects. Some commenters provided data from facilities withdrawing cooling water from the Pacific O cean, and EPA they employ the same technologies (including traveling screens, offs hore velocity caps, and low intake velocity) that EPA used in setting the final rule’s performa nce standards. Indeed, the record from the Phase II rulemaking shows that approximately 95 percent of the species of fish are capable of swimming away from an intake velocity of 0.5 feet per second; see DCN 2-028A. As discussed above, the technologies forming the basis for the final rule’s perfor mance standards are available, feasible, and demonstrated (see preamble).

Essay 15 104

### Essay 16: Requirements for Impingement and Entrainment

Introduction As described in the preamble to the final rule, EPA has developed a final rule that establishes “best technology available” standards for cooling water intake structures that minimize adverse environmental impacts. Specifically, the final rule establishes BTA standards for reducing impingement mortality and entrainment, the adve rse environmental impacts that EPA identified as associated with cooling water intake structur es. First, the rule esta blishes a BTA impingement mortality standard that provides seven different alternatives fo r complying with the standard. Second, the rule establishe s a BTA standard for entrainment th at requires the determination of required entrainment reduction measures in a st ructured site-specific permitting proceeding. The BTA standard for entrainment requires that certain prescribed factors must be considered in the decision and must reflect the maximum reduction in entrainment warranted after consideration of relevant. EPA introduced the framework for entrainment decision-making in the proposed rule and, based on public comments and additional an alysis by EPA, revised this framework as explained in a subsequent Noti ce of Data Availability (NODA). This essay addresses specific comments on adverse environmental impact, and th e requirements associated with today’s BTA standards. Please refer to Essay 15 for informa tion on EPA’s approach for determining BTA for existing units and Essay 20 for EPA’s appro ach to the requirements for new units.

Adverse Environmental Impact (AEI) Section 316(b) of the Clean Water Act requires that “ the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” A number of industry commenters stated that EPA has not demonstrated that adverse impacts are occurr ing, suggesting that there is no need for a regulation. These commenters also stated that EPA has not demonstr ated that the current level of impacts from impingement and entrainment are affecting aquatic organisms at the population level. Other commenters added that some species exhibit high rate s of natural mortality, which may lead to a lack of impacts due to impinge ment of individuals of these species. Other commenters argued that EPA has historically used a populati on-based approach and should continue to do so. Some comment ers called on EPA to define AE I, including acknowledging that some impingement is not an adverse impact (e .g., impingement of nuisance species or stocked fish). Some commenters stated that EPA has cited examples of impacts from large facilities and extrapolated these impacts to a ll facilities. Some commenters ar gued that the proposed rule goes beyond minimizing AEI and is inconsistent with the Supreme Court’s in terpretation of BTA. Some commenters argued th at the rule should exclude stocke d fish from the definition of impingement.

A commenter argued that EPA should expand the uni verse of affected organisms to include all biota. Riverkeeper also stated that impacts s hould not be based solely on the numbers of individuals impinged or entrained, as this may not accurately refl ect the biological implications.

State commenters argued in favor of both industry’s and Riverkeep er’s interpretation of AEI. One commenter stated that EPA should allow the Director to assess whether AEI is occurring,

Essay 16 105while another called upon EPA to clearly define AEI and provide guidance to determine when a waterbody is being adversely affected.

With respect to comments on defining AEI, EPA has not changed its views about what constitutes AEI from those explained in the Ph ase I rule, the remanded Phase II rule, the Phase III rule and the proposal to today’s final rule. See 66 FR 65289-97 (December 18, 2001) and 316bNFR.029.013 from the Phase I Response to Comment document (DCN 3-0091); 69 FR 41612 (July 9, 2004); 71 FR 35019 (June 16, 2006); and 76 FR 22196 (April 20, 2011). In those preambles, EPA discussed what are the adverse e nvironmental effects that the 316(b) standards are designed to minimize.

In the Phase I rule, EPA established a framew ork that defined AEI as the impingement or entrainment of individual organisms, regardless of considerations of population effects, natural mortality, or compensatory reserve. (See, e.g., 66 FR 65289 [December 18, 2001], which states

“ EPA does not agree that adverse environmental impact associated with cooling water intake structures is solely a population-based phenomenon ” and 66 FR 65285 “ EPA does not believe that a population approach makes sense for new facilities. ”) Upon challenge by industry, the Second Circuit agreed in Riverkeeper I , stating:

“ We think that the EPA’s focus on the number of organisms killed or injured by cooling water intake structures is eminently reasonable. See Final Rule, 66 Fed. Reg. at 65,262­ 63, 65,292. As discussed above with respect to restoration measures, Congress rejected a regulatory approach that reli es on water quality standards, which is essentially what UWAG urges here in focusing on fish populat ions and consequential environmental harm. ”

EPA continued to use this approach for existing facilities in the Phase II rule (“ Similarly, based on the analyses and for the same reasons set forth in the preamble to the new facility rule [66 FR 65256, 65291–65297], EPA has selected reductions in impingement and entrainment as a quick, certain, and consistent metric for determini ng performance at Phase II existing facilities. ” 69 FR 41586 [July 9, 2004]). Upon challenge by industry in Riverkeeper II , the Second Circuit again supported EPA’s approach to defining AEI:

“As did the industry petitioners in Riverkeeper I , PSEG argues that the EPA arbitrarily defined AEI to include any loss of or harm to aquatic organisms due to impingement mortality and entrainment rather than only mo re severe “populati on-level effects.” [...] We are not persuaded by PSEG’s arguments.

We agree with the EPA that the Phase II Rule is based on substantially the same record evidence of impingement mortality and entrainment relied upon in promulgating the Phase I Rule and that we rejected substantially the same arguments advanced here by the industry petitioners in Riverkeeper I , 358 F.3d at 197 (“The EPA considered all of the factors that UWAG now raises, and we are inclined to defe r to the EPA’s judgment of how best to define and minimize ‘adverse environmental impact.’” (internal footnote omitted)). Riverkeeper I thus controls this issue.”

EPA again followed this approach in the Phase III rule (see 69 FR 68461, November 24, 2004).

Essay 16 106Commenters failed to provide new information or basis for changing EPA’s position regarding AEI and the direct link between impingement and entrainment. EPA has concluded that it is inconsistent with “minimizing adverse envir onmental impacts” to adopt standards based on ensuring only against the most dr astic consequences – decline and destruction of fish populations – rather than preventing these in the first instance through the reducti on of impingement and entrainment. As stated, EPA has no basis for ch anging its long-held appr oach in today’s final rule based on a sound scientific basis sustained in multiple legal reviews. As discussed in the preamble, EPA has identified a clear need fo r addressing impingement and entrainment at cooling water intakes and the defini tion of AEI in today’s final rule is consistent with the rule framework and EPA’s historical treatment. EPA has not includ ed any further definition or guidance for AEI in the final rule, as it is not necessary; the rule rec ognizes that AEI may be occurring at all intakes and establishes an appr opriate framework for fac ilities to address these impacts.

With respect to comments stating that AEI should be defined as all organisms, including all biota, EPA disagrees. The Agency focus of sect ion 316(b) requirements is on all life stages of fish and shellfish, and as discussed above commen ters did not provide new data or information why the Agency should change this approach. Im pingement and entrainment are the primary (but not only) indicators of AEI under today’s rule, as they are the most easily measured impacts. Because EPA acknowledges that other organisms ma y be a concern on a local basis, the final rule provides the Director with significant di scretion to identify a nd address site-specific problems for other categories of biota. At § 122.21(r)(11), the permit application must provide a discussion (with quantification a nd monetization, where possible) of any other benefits expected to accrue to the environment and local commun ities, including but not limited to improvements for mammals, birds, and other organisms and aquatic habitats. The definition of all life stages of fish and shellfish at § 125.92 gives the Director discretion to exclude nuisance species from being considered for impingement and entrai nment requirements. The BTA provision at § 125.94(c)(9) specifically addresses fr agile species and other aquatic organisms in addition to fish and shellfish, and a provision at § 125.94(c)(8) sp ecifically addresses additional protections for shellfish. EPA also disagrees th at, in describing the impingement and entrainment effects at some facilities, it has extrapolated the impacts of large facilities across the affected universe. The examples provided in the preamble showcase facili ties that impinge and entrain large numbers of organisms as a way to demonstrate the need for the regulation. EPA also disagrees that it has no data for facilities with a DIF less than 50 mgd. Some commenters have insisted this is this case despite studies available in the public record since Phase I, where EPA’s record includes counts of impingement at 5 facilities, one of which was under 20 mgd DIF (DCN W-00-03). The record for today’s final rule includes more than 40 biological studies from Phase III facilities (manufacturers) alone. In calculating the benefits associated with the rule (i.e., the reduction in the number of age-one equivalents impinged and en trained), EPA used a large number of studies from a variety of facilities (including small power plants and manufacturers) to derive an average value for various ecoregions; see the pr eamble and EEBA for more information. EPA disagrees that its definition of AEI is inconsistent with the Supreme Court’s view of BTA; refer to Essay 15 and the preamble for additional di scussion on EPA’s approach to BTA.

With respect to comments suggesting that stoc ked fish be excluded from the definition of impingement, while the rule permits the Director to waive permit applications requirements for certain facilities located on waterbodies where the fisheries are stocked, the rule does not exempt

Essay 16 107such facilities from impingement and entrainment requirements. EPA a dopted this provision not as a means of excluding certain organisms, but rather recognizing the practical matter of conducting biological assessments that will soon be unrepresentative or their value negated by stocking and significantly adjust ing the population in that waterbody. With respect to simple enumeration of impinged or entrained organisms, EPA also agrees that this approach is not always reflective of adverse impacts. For example, mortality of a single threatened or endangered organism may be significant.

With respect to comments stating that EP A should account for past organism losses, EPA disagrees that assessments of impingement should account for past losses; it is inappropriate to consider additional permit requirements based on events that occurred in the past in an attempt to “make up ground.” Additionally, even if EPA ag reed with this concept, EPA has little confidence that it would be able to accurately calculate the effects of past impingement losses on current abundances of organisms (especially when the abundance is also affected by other factors, such as fishing pressure, natural disasters, several decades of industrial operations, etc.), making it nearly impossible to determin e an appropriate level of response.

Impingement Requirements Commenters provided information on a wide variety of topics re lated to impingement mortality requirements.

Riverkeeper advocated basing the rule on closed-c ycle cooling or reductio n of intake velocity, which they state are more protective measures than the numeric limit. Riverkeeper also opposed providing additional means of complying with th e impingement mortality standard that EPA described in the June 11, 2012 NODA. Many indus try commenters argued in favor of a sitespecific approach to addressing im pingement, noting that this would be consistent with the logic for addressing entrainment on a site-specific basis. This would also allow for the greatest degree of flexibility and options for th e affected facilities, adding that this has been EPA’s historic approach for addressing impingement. Some st ate commenters also fa vored a site-specific approach. These commenters also stated that a site-specific approach would allow consideration of waterbody-specific concerns. One commenter provided a framework for determining BTA. Riverkeeper argued that a site-specific approach for impingement mortality would be less protective, as they expect many facilities will cla im that they can’t meet the standards, delay permit proceedings, or otherwise overwhelm pe rmit writers. Riverkeeper also stated that assessments of impingement should account for past organisms losses, which would artificially lower the present-day abundance of organisms

. Some state commenters favored the limited use of a site-specific approach for impingement (e.g., in cases where closed-cycle cooling is a likely solution), but otherwise considered th e approach to be too burdensome.

Commenters were also concerned that many facilit ies would be unable to meet either of the two compliance options in the proposed rule, leaving no options for compliance and forcing facilities to install closed-cycle cooling to comply with impingement requirements. Commenters stated that a site-specific approach should be used if a facility can demons trate that the national impingement mortality limit is not feasible. Commen ters also stated that the rule assumes that no facility currently exhibits BTA. Commenters al so noted that Ristroph screens have not been demonstrated as effective at a ll sites. Some commenters argued that EPA should eliminate the

Essay 16 108numeric standard (and utilize a site-specific approach) or make the numeric standard a performance goal. These commenters advocated that a faci lity that installs a proven technology and demonstrates that it is operating the t echnology properly should be deemed to meet impingement requirements. Riverk eeper argued that facilities should be required to install multiple technologies to ensure that BTA is achieved. Some state commenters favored the numeric impingement limit, as well as some de gree of monitoring to ensure that the technology is properly operating. Some state commenters favored the concept of combining compliance approaches.

Other commenters argued in favor of identifyi ng pre-approved technologies, including closedcycle cooling, velocity caps, c ooling impoundments, and offshore we dgewire screens, as well as other developing technologies (G eiger screens, WIP screens, H ydrolox screens, etc.). Industry commenters opposed requiring that facilities employ a closed-cycle cooling system or achieve a 0.5 fps intake velocity from being required to in stall modified traveling screens. Commenters also advocated that an intake should not be limited to exclus ively supplying a unit with makeup water, which would exclude fire water or other uses. Several commenters also favored creating a process by which future technolog ies could become pre-approved.

Similarly, industry commenters stated that EPA s hould include streamlined options in the final rule and favored the concept of identifying specific operating parameters and reducing the monitoring requirements. One co mmenter requested that EPA de velop a database of technology performance for specific sites. Some commenters al so noted that, for some facilities, there may be relatively few operational parame ters that can be tested or fi ne-tuned, limiting the feasibility of a streamlined compliance alternative. Riverk eeper opposed the use of streamlined compliance alternatives, stating that it may allow facilities to be deemed to meet impingement requirements, while not achieving any actual improvement. Ri verkeeper also opposed reduced monitoring under a streamlined compliance altern ative, noting that it eliminates the only source of data that can confirm the continued perf ormance of a technology. Some state commenters favored a streamlined compliance alternative. Commenters provided a wide variet y of comments on the study requirements for a streamlined compliance alternative, ranging from eliminating the study entirely to arguing that the study would be challenging to conduct to agreeing w ith the general content of the study described in the NODA. Commenters also provided information on the various components of an intake technology, in cluding features that can be optimized to maximize impingement survival. Commenters st ated that facilities employing pre-approved technologies should not be subject to any monitoring requirements.

Some industry commenters stated th at the rule should also include a provision for facilities that exhibit very low levels of impi ngement (i.e., de minimis), in pa rt because the numeric standard could penalize facilities with historically low levels of im pingement. Some commenters also argued that the standard for de minimis should not be determined at a nati onal scale, but left to the Director. Commenters also noted that the co sts to install impingement controls may greatly outweigh the benefits of saving a few fish. Rive rkeeper opposed the de minimis provision, noting that an annual threshold coul d mask significant short-term im pacts. Some state commenters favored a de minimis provision, but called on EPA to provide a threshold in the final rule.

Commenters argued that the final rule shoul d permit “credit” towards meeting impingement mortality requirements for several categories of technologies. First, cred it could be given for

Essay 16 109flow reduction, such as closed-cycle cooling, opera tional measures, unit closures or retirements, variable speed pumps, or reduced capacity ut ilization. Second, credit could be given for technologies that reduce the rate of impingement (as opposed to th e impingement mortality rate), such as barrier nets, behavioral technologies (e.g., lights, air b ubble curtains, etc.), or intakes located in a less biologically- active area. One commenter sugge sted that EPA’s example of calculating credits was flawed. Some commenters (including Riverkeeper) stated that only the actual intake flow should be used as the baseli ne for flow credits, as this reflects “real” reductions in flow. One commenter said that EPA has essentially recreated the calculation baseline approach from the 2004 Phase II rule, but has not defined the term. Some commenters argued that EPA should not use an arithmetic av erage in calculating the appropriate credits, suggesting a proportional credit. On e commenter also stated that the example equations provided in the proposed rule preamble were incorrect. Ri verkeeper also stated that EPA should require long-term monitoring to verify any credits. Ot her commenters stated th at EPA should clearly define a calculation baseline, as was used in the Phase II rule.

Some commenters stated that EPA should include provisions for a fundamentally different factors (FDF) variance.

Industry commenters also argued that the framew ork for impingement in the final rule should include considerations of cost-b enefit or cost-cost tests, shoul d eliminate the entrapment and barrier net provisions of the propos ed rule, should consider closed -cycle cooling as compliant for impingement, should give credit to facilities that have already installed technologies (especially those that acted upon the Phase II rule by inst alling technologies), s hould allow previous determinations of BTA to remain valid and in eff ect, and should allow the facility to use existing studies as permit application materials.

One commenter stated that EPA incorrectly concl uded that nearly all eggs are entrained at a mesh size of 2 millimeters.

One commenter stated that some facilities are fa ced with historically low water levels and may require booster or emergency pumps to be placed in the source wa ter; these pumps typically have

no screens.

Option Selection Refer to Essay 19 for the primary discussion of comments related to option selection. As described in the preamble, EPA has concluded th at it should base the impingement mortality standard for existing units on the performance of modified traveling screens (e.g., modified Ristroph screens and equivalent modified traveling screens) with fish-frie ndly fish returns – the “best technology available” for minimizing impinge ment mortality). EPA refers to this BTA simply as modified traveli ng screens throughout this essay. While there are a number of technologies that may perform as well or better than traveling screens (including closed-cycle cooling), as detailed in the preamble, these t echnologies were not feasible or available on a nationwide basis and thus were not the “best technology available” for standard setting purposes. Moreover, the impingement mortality standard for existing units provides a number of alternatives, including so me of these other technologies, fo r compliance with the standard. EPA based the BTA impingement mortality standard for existing units on the performance of

Essay 16 110traveling screens because EPA concluded that this technology is effective, widely available, feasible, 12 and does not lead to unacceptable non-water quality impacts.

With respect to comments that EPA should a dopt a site-specific approach for impingement, as described in the preamble, EPA disagrees that it should adopt a national impingement mortality standard requiring the establishment of impingeme nt mortality controls on a site-specific basis. EPA has established a national BTA performance standard for impingement mortality based on modified traveling screens. EPA concluded that, on a national basis, the performance associated with modified traveling screens is achievabl e, feasible and demonstrated. As such, EPA appropriately established a national BTA IM perf ormance standard rather than a site-specific performance standard. This is in contrast to entrainment, where EPA did not identify a technology basis that is achievabl e, feasible and demonstrated. See preamble section VI for additional discussion.

As to the commenter that provi ded a framework for determining BTA for IM on a site-specific basis, for the reasons specified above, EPA did not adopt a site-s pecific approach for determining BTA for IM. EPA did not adopt the framework wholesale but EPA notes that many of the elements in the framework are included in th e final rule (e.g., pre-ap proved technologies, study of multiple alternate technologies, incl usion of a de minimis provision, etc.)

Compliance Alternatives As described in the preamble, there are seven compliance alternatives for meeting the impingement mortality requirements. One altern ative is to comply with the impingement mortality performance standard. Three altern atives utilize pre-approved technologies for compliance. Three alternatives utilize a stream lined approach for permitting. Each of these are described in detail below.

The alternative for complying with the impi ngement mortality performance standard (§ 125.94(c)(7)) requires the owner or operator to demonstrate compliance with the numeric impingement mortality performance standard through biological monitoring. Under this alternative, the owner or opera tor has the flexibility to choos e any technology, including a new or innovative technology, provide d the compliance monitoring demonstrates the standard is achieved.

The following pre-approved technologies will comply with today’s rule a nd are associated with minimal monitoring and reporting of operational and/or design parameters to demonstrate compliance. These technologies are (the numbering reflects the numbering in § 125.94(c)): operating (1) a closed-cycle recirculating system; (2) a cooling water intake structure that EPA or the State NPDES permitting authority determines has a design maximum through-screen intake velocity of 0.5 feet per second; or (4) an existing offshore veloc ity cap. The general intent behind a compliance path based on a pre-approved technology is to provide a level of certainty to the regulated entity that they would be deemed comp liant with the relevant rule requirements by designing, installing, and operating the technology as specified inthe regulation. The three preapproved compliance alternatives are each ba sed on a particular technology approach. A

12 As part of the feasibility determination, EPA found th at the IM standards are also economically achievable.

Essay 16 111compliance alternative based on a pre-approved t echnology entails criteria, design standards, and operational measures in the regulatory language specific to the pre-a pproved technology. The

com pliance paths based on pre-approved technologi es in today’s final rule include simplified permit application requirements (such as reduc ed or minimal study requirements), reduced documentation, or reduced monitoring, and therefor e pose greatly simplified implementation. In today’s final rule, there are no biological compliance monitoring requirements for any of the three compliance paths based on “pre-approved” technologies.

Under the three streamlined compliance alternatives, a facility must demonstrate to the permit Director that traveling screens, actual intake velocity, or some combination of technology controls or operational measures represent BT A performance under the conditions at the site. The three “streamlined” compliance alternatives are (the numbering reflects the numbering in § 125.94(c)): (3) a cooling water intake struct ure that EPA or the State NPDES permitting authority determines has an actual maximum th rough-screen intake velocity of 0.5 feet per second; (5) operating modified tr aveling screens whose demonstrat ed performance represents the best technology available for impingement reducti on at the site (and were the basis for the numeric IM performance standard); or (6) operating a system or combination of technologies or operational measures whose demonstrated perfor mance is the best technology available for impingement reduction at the site. Compliance with (3 ) is similar in concept to alternative (2) but relies instead on operational measures to ensure that the facility’s intake velocity does not exceed 0.5 feet per second; it is because of this degree of uncertainty (i.e., that there is not a technology or design feature limiting the velocity) that led EPA to designate (3) as streamlined as opposed to pre-approved. In order to demonstrate BTA perf ormance under compliance alternatives (5) and (6), a facility will need to c onduct a two-year site-specific study at the same time it conducts its source water characterization and Entrainment Characterization Study. This study must demonstrate that its modified traveling screen s, or combination of technology controls and operational measures, have been adjusted and optimized so as to minimize impingement mortality. If the Director concl udes that the facility has demons trated optimized performance for its controls the facility will have no subsequent biological monitoring and reporting requirements in the current permit cycle. These “streamlin ed” compliance alternatives are based on a technology or suite of technologies and practices with more variab le performance, and as such necessitate some degree of study, in order to optimize technology performance for the sitespecific conditions encountered by a facility. A streamlined compliance alternative may require some level of monitoring, but once the optimal performance of the technology has been identified, conditions included in the permit specifying optimal operation ensure that the streamlined alternative is similar to or bett er than the impingement mortality performance standard.

The compliance alternatives for “pre-approved” technologies and the streamlined compliance alternatives address industries concerns about the expense an d burden of perpetual biological compliance monitoring associated with the impi ngement mortality performance standard when many technologies can be readily shown to cons istently achieve EPA’s desired performance.

IM Performance Standard Refer to Essay 16A for the primary discussion of comments related to the calculation of the IM performance standard. With respect to comments on the performance standard or concerns that

Essay 16 112some facilities would be unable to meet the performance standard, EPA disagrees that the numeric performance standard is inappropriate or that the values were inaccurately calculated (see Essay 16A for more discussion on how the pe rformance standard was derived). EPA also disagrees that biological m onitoring to demonstrate comp liance with the numeric IM performance standard should be eliminated. Biological monitoring provided the data upon which the standard is based and, thus, including a compliance alternative based on it is appropriate. EPA also notes that inclusion of that compliance a lternative is one way the fi nal rule is structured to allow for future technology innovation.

But EPA is not requiring compliance with the BTA impingement mortality standards only through biological monitoring data that demonstrat es achievement of the numeric reduction in mortality levels that EPA has determined well-operated modified traveling screen will achieve. Rather, as described above, the final rule allows facilities to comply by employing any of seven alternatives, including monitored complian ce with a numeric impingement mortality performance standard.

Based on its review of available data and info rmation submitted by commenters, EPA identified a number of other technologies a nd operational measures that coul d achieve equivalent, or better, performance to the impingement mortality reducti ons achieved with modified traveling screens that may be available for some sites. Thus, th e final rule provides seven alternatives for complying with the BTA impingement mortality standards. EPA included the seven compliance alternatives in the final rule to provide faciliti es with ample flexibility to select the compliance alternative most consistent with their facility. In addition to biological monitoring for compliance with the numeric IM performan ce standard, the rule includes three compliance paths based on “pre-approved” technologies, and three compliance paths that offer a “streamlined” approach to compliance. EPA expects the majority of facilities will use one of these six options to comply with the BTA impingement mortality standards.

Pre

‐ Approved Techno logies Many commenters requested that EPA “pre-approv e” technologies that, once installed, would obviate the need for further regula tory conditions such as periodic m onitoring. This is similar to the approach taken for cylindrical wedgewire sc reens in the remanded 2004 Phase II rule (see § 125.99(a)). With respect to a compliance alternat ive for pre-approved technologies (i.e., technologies with reduced permit app lication or monitoring requirements), under the final rule, facilities are afforded greater flexibility in choosing a compliance alte rnative than in the proposed rule. As explained a bove, EPA makes a distinction be tween pre-approved technologies and streamlined compliance alternatives. Alternat ives (1) , (2), and (4) at § 125.94(c) are preapproved technologies requiring no de monstration or only a minimal demonstration that the flow reduction and control measures are functioning as EPA envisioned. These are discussed further in the preamble. The streamlined alternatives discussed above re quire more detailed information be submitted to the Director before the Director may specify it as the requirement to control impingement mortality.

As explained above, EPA has adopted, in signif icant measure, commenters’ suggestion in the impingement mortality standard to incorporat e pre-approved technologies in its compliance alternatives. In these cases, EPA concludes its reco rd demonstrates that use of these technologies

Essay 16 113as defined in the rule will consistently and reliab ly enable a facility to meet or exceed the IM performance standard. Given the consistent and wi dely applicable performance data of these preapproved technologies, there is no need for ongoi ng biological monitoring or an optimization study. In each case, however, a facility is required to monitor intake flow or other parameters to ensure continued operations. EPA concluded the following technologies are appropriately deemed as pre-approved:

 Closed-cycle recirculating systems, defined at § 125.92

 Existing offshore velocity caps, defined at § 125.92

 Technologies that result in a design intake veloci ty less than or equal to 0.5 fps, including most modern cylindrical wedgewire screens

EPA did not develop a process to designate additional pre-appr oved technologies because in EPA’s view a facility has ample flexibility to demonstrate a candidate technology’s effectiveness under § 125.94(c)(6) and, upon successful demo nstration, may qualify for reduced permit application and monitoring requirements. This dem onstration could also be used to illustrate the effectiveness of other combination of technologies in use at a facility. For example, the facility could combine two or more technologies or ope rational measures and demonstrate that the performance of its installed controls reduce impi ngement mortality consis tent with the required BTA standard.

As explained above, in the final rule CCRS is a pre-approved technology, accordingly an impoundment that meets the definition of CCRS at § 125.92(c)(2) is pre-approved. See preamble section VI.G.

Some commenters suggested that EPA should include wedgewire screens as a pre-approved compliance alternative. In support of such an alte rnative, they cite EPA observations that most wedgewire screens are already desi gned to meet the 0.5 fps intake velocity requirement in EPA’s low velocity compliance alternative. EPA disagr ees that a separate compliance alternative is appropriate for wedgewire screens. To the extent that a facility employs a wedgewire screen that is designed to meet the 0.5 fps intake velocity in the low velo city compliance alternative, the facility can avail itself of the low velocity comp liance alternative. EPA doe s not have data that demonstrates that facilities with wedgewire scre ens that are designed to operate with an intake velocity above 0.5 fps would achieve the IM perf ormance standard. However, such a facility may be able to demonstrate compliance by documenting impingement mortality reductions equivalent to the performance standard through th e compliance path outlin ed in § 125.94(c)(6) or (7). In response to comments about the Phase II provision regarding wedgewire screens, today’s low velocity compliance alternative is more flex ible than the Phase II provision for wedgewire screens because today’s final ru le, in addition to low veloc ity, does not require the other conditions that were in Phase II (including cylindrical screen shape, waterbody type, sufficient counter currents/cross-flow, requireme nts for slot size, or total DIF).

EPA also notes that it does not have sufficient data in its record to demonstrate that the more recent traveling screen designs (Geiger screens, WIP screens, Hydrolox screens, etc.), will reliably and consistently achieve the IM perf ormance standard without the optimization study. Therefore EPA disagrees that th ese should be included as pre-a pproved compliance alternatives

Essay 16 114and as such EPA did not designate these technol ogies as pre-approved. These technologies, like other modified traveling screens, require optimi zation in order perform e qual or better than the Ristroph-type modified traveling screens. Thes e technologies are listed in the examples of modified traveling screens in th e rule definition at § 125.92. EPA not es that, where data for such screens was available and met the criteria for incl usion in calculation of today’s IM performance standard, EPA included it. See Essay 16A. EPA expects that many facilities employing these technologies would seek compliance through perf ormance optimization of these technologies under § 125.94(c)(5), Modifi ed Traveling Screens.

With respect to comments on requiring additiona l technologies (e.g., the re quirement at proposal for facilities employing closed-cycle cooling to also install modified traveling screens), EPA disagrees that facilities should be required to in stall multiple technologies to achieve the greatest reduction possible irrespec tive of other factors. As stated in the preamble and Essay 10, the Clean Water Act requires that facilities “minim ize” impacts, not “eliminate” them. Further, the Clean Water Act provides EPA with the flexibility to consider factors other than the degree of reduction in determining what is best in terms of minimizing the impacts. As such, EPA is not mandated to base BTA solely on a technology or a group of technologies that achieves the greatest reduction. If a single tec hnology is sufficient to minimize im pacts, there is no reason to require additional technologies or to determ ine BTA should be based on multiple technologies, even if some marginal improvement in impi ngement could be achieved. Consequently, after reviewing the data in the record that demonstr ated closed-cycle coo ling systems achieve IM reduction that is equivalent to or greater than the IM performa nce standard, EPA eliminated the proposed requirement to install m odified traveling screens at fac ilities that employ closed-cycle cooling and adjusted its complia nce costs accordingly. EPA’s da ta also indicates that the substantial reduction in flow achieved by closed-c ycle cooling is highly protective of aquatic resources. EPA also revised the regulatory langua ge regarding exclusive use of an intake for closed-cycle cooling units to permit more flexib ility. Similarly, because EPA’s data on intake velocity indicates that maintaini ng a low velocity will consistently and reliably provide adequate protection from impingement, additional technologies (such as screens) are not necessary if an intake is achieving the necessary velocity.

With respect to comments on existing technologie s that are already installed and operating at a facility, EPA notes and acknowledges that facilities that have alr eady installed a technology may in fact have already achieved the IM BTA sta ndard. (See Exhibit VIII-1 of the preamble for a summary of EPA’s projections on how facilit ies will choose to comply with the IM requirements.) Section 316(b) of the CWA requires that EPA must establish BTA standards for cooling water intake structures that minimize adverse environmenta l impacts. It does not require that all facilities raise their existing level of pe rformance. That is, in absence of today’s rule, some facilities already meet BTA under their existing permit. Under EPA’s NPDES permitting regulations, all NPDES permits after the effective date of today’s rule must include conditions meeting today’s BTA standards. 40 CFR 122.44(b)(3 ). Thus, permits for all facilities must include conditions consistent wi th today’s BTA standard, which may or may not require that a particular facility take action to achieve additional reduction over their current performance. In an effort to reduce implementation burden and recognizing that some f acilities already employ approaches that will achieve today’s BTA IM performance standard, EPA included several compliance alternatives in today’s final rule that would allow a facility to demonstrate that it has installed a pre-approved technology, or, in the case of those facil ities complying via compliance

Essay 16 115alternative (c)(6), the rule woul d allow facilities to demonstrate reductions in the rate of impingement to be used toward reducing impingeme nt mortality and reflected in the calculations of IM in the performa nce optimization study.

Streamlined Approach EPA disagre es with com menters that indicated such streamlined compliance alternatives will allow facilities to claim compliance with little or no improvements. In fact, EPA anticipates that performance for facilities that have done optimiza tion studies will likely exceed those used as the basis for the IM performance standard. This is so because the facilities used as basis for the IM performance standard may not have optimized their system whereas facilities electing the streamlined compliance alternatives must c onduct a study specifically for the purpose of optimization. While the streamlin ed alternatives are intended to significantly reduce the longterm monitoring requirements for a facility (v ersus complying via the numeric standards), EPA disagrees that facilities choosing a streamlined alternative would be exempt from all data collection requirements pertaining to technology performance. As explained above, in the final rule, the streamlined a lternatives require a 2-year optimi zation study as part of the permit application, in which biological da ta is collected and used to optimize technology performance in order to minimize impingement mortality. Once th e site-specific operational and management parameters for optimized performance have b een identified, the Dire ctor would establish enforceable permit conditions in the permit to ensure continued optimized operation of the technology (e.g., continuous screen rotation, use of low pressure spray wash). Enforceable permit conditions will help ensure that faci lities achieve and main tain high levels of performance. Under this approac h, the technology would not be ope rated merely to meet the IM performance standard, rather the approach resu lts in a level of performance higher than the minimum standard.

EPA also disagrees that perpetual monitoring is necessary to ensure long-term performance of IM technologies. As explained above, once a facility has demons trated that the particular technology chosen for a given site can achieve the necessary impingement mortality reductions, no additional compliance monitoring would be require d for the duration of th at permit, provided that the conditions at the facility remain the same. EPA determined this is appropriate given the consistent, well-known performance of modified traveling screens when operated under set parameters and a reasonable certainty that such performance would continue in future operations. The optimization study would identify the critical elements to optimize operation and serve as the basis for identifying permit conditions that ensure the technology is operated to achieve optimal performance. While the facility w ould then not conduct biological compliance monitoring in the current permit cycle, in subseq uent permit cycles, the f acility would conduct an updated 2-year performance optimization study. Under § 125.95 the rule requires the optimization study be redone with every permit a pplication unless the Dire ctor has approved the facilities request to waive some or all of the permit application requirements. EPA notes that all of these data and the draft permit would be available to the public. EPA expects that, in subsequent permit terms, those circumstances where there are cha nges in source waterbody, changes in operation of the facility, or changes in local species, etc., may warrant a reevaluation of the optimization study and the associated permit conditions reflecting optimized operation. Under such circumstances, EPA expects the Dire ctor would reevaluate the permit conditions to ensure the technology continues to be operated in an optimized fashion. EPA also notes that

Essay 16 116where necessary, the Director also retains the discretion to esta blish additional monitoring at § 125.96(a), including additional provisions to re-eva luate changes in operating conditions or the source waterbody at § 125.96(c). In this case, EPA finds the overall approach to be less expensive and more effective than perpetual biological monitoring. This approach also addresses commenters’ concerns about cha nging operating conditions or ch anges to the source waterbody that they believe would warrant a re-evaluation of BTA for IM.

EPA appreciates commenter’ submittals with information on the various elements of the modified screens that could be modified or optimized. In response to comments that facilities may have limited opportunities to utilize the stre amlined alternative for modified traveling screens, EPA agrees that, at some sites, so me operational parameters may have reduced flexibility (e.g., many traveling screens are now rotated continuously, and no longer revolve based on pressure drops or a fixed timer). In EPA’s view, this should actually make demonstrating optimized operation easier for a faci lity (by reducing the nu mber of operational variables to be tested during th e optimization study), and therefor e may have led it to include an overstatement of costs associated with such a study. EPA also notes that the Director may determine additional technologies are necessary to meet BTA, including protections for T&E species, shellfish, or fragile species.

In addition, as discussed above, for a facility choo sing to comply with comp liance alternatives at § 125.94(c)(5) and (6), technology optimization st udies in subsequent permit applications provide for flexibility for the future, such as wher e changes in the facility ’s operations or in the biota in the waterbody necessitate a different se t of operating parameters in order to optimize operation of the technology.

For all the reasons explained above, EPA disa grees that the optimization study should be eliminated for these streamlined compliance altern atives. EPA also disagrees that such studies would be challenging to conduct. EPA notes that facilities have been conducting impingement monitoring for decades and the state of the science is sufficient to conduct the sampling and provide the Director with an accurate assessmen t of the expected perf ormance of the proposed technology.

Finally, EPA notes that the impingement mortality performance standard in the final rule does not require specific technologica l or operational controls nor does it require an optimization study. Rather, specific technologica l or operational controls and/ or the optimization study is required if a facility chooses to comply with the standard through one of the streamlined compliance alternatives. For exampl e, a facility that currently ha s traveling screens with fish returns will most likely elect to comply via § 12 5.94c(5). In that case, the rule requires that the screen exhibit certain categorie s of design features that are demonstrated and documented to improve the survival rates of impinged fish. The two-year duration of the optimization study required for the permit application allows for the f acility to capture data over a wide range of operational conditions with the expectation that the study will enable the facility to determine optimal operational procedures for its specifi c location; nothing precludes a facility from collecting more than 2 years’ worth of data. Furt her, the two year period will allow facilities to test these operational procedures over time so as to demonstrate they are the most effective for more than just a narrow window of time. The final rule also does not require the facility to meet the numeric performance standard at § 125.94(c) (7) during the optimization study, alleviating

Essay 16 117commenter concerns about being issued a notice of violation wh ile still evaluating its intake impinge ment mortality control technology.

Other With regard to development of an impingeme nt technology performance database for specific sites, EPA disagrees that this is necessary or appropriate. EPA has alread y collected a significant amount of information on the performance a nd feasibility of the various impingement technologies. This information is compiled in th e TDD and included in th e record supporting this rule. The commenter requests that the database use a robust statis tical approach for calculating performance of each technology. As discussed ab ove, EPA based the IM performance standard on modified traveling screens and calculated the associated performance standard using a robust statistical approach (see Essay 16A ). The performance standard serves as the basis of comparison for other technologies, including new and innovativ e technologies and a pproaches. EPA assumes that this makes unnecessary developm ent of such a national database.

With respect to comments requesting a pr ovision for very low impingement rates, the final rule includes a de minimis provision. See § 125.94(c)(11). In seeking to avail th emselves of the de minimis provision, facilities are re quired to submit data to the Director indicating that they experience exceptionally low impingement rates; th e Director will then determine what measures are appropriate. EPA did not establish any metr ics for what qualifies as “exceptionally low” impingement rates, as the Agency intends for th e de minimis provision to be infrequently used. The NODA used the example of several fish per month; see 77 FR 34324 (June 11, 2012).As such, EPA disagrees with Riverkeeper’s contenti on that impacts will be masked under a de minimis provision; the absolute number of fish im pinged is likely to be sufficiently low that no masking of significant biological im pacts will be numerically possible. Said differently, a facility with sufficient impingement to enable the deve lopment of temporal effects likely would not qualify for the de minimis provision. The de mini mis provision also addresses comments about EPA’s calculation of a limit when the numbers of organisms are statistica lly indeterminate. EPA concluded that a definition of de minimis was in appropriate, as the definition can vary on a sitespecific basis given the species impinged, the presence of threatened or endangered species near the intake structure, the relativ e abundance of fish, and other f actors. EPA notes that several comments provided data in support of the de mi nimis provision, but did not provide sufficient data to allow EPA to define de minimis. Due to the lack of comparable data, EPA did not determine whether these data sets were approp riate examples of de minimis. Because EPA’s economic analysis did not include the cost savings of facilities determined to pose de minimis impacts, the cost of the rule is likely overestimated for such facilities that are able to comply via the de minimis provision.

With respect to comments requesting “credit” towards compliance, the final rule also includes a provision to allow a facility to demonstrate credit towards meeting impingement mortality requirements; see § 125.94(c)(6). Under this prov ision, a facility can demonstrate partial (or complete) progress towards meeting comparable performance to the impingement mortality performance standard. For the system of technologies compliance alternative under § 125.94(c)(6), the final rule, at § 122.21 (r)(6)(ii), specifies how a facility would obtain credit for actual flow reduction, reduced ra tes of impingement, reduced impingement mortality, and the overall performance of the system of technologie s. Similarly, the compliance option described at

Essay 16 118§ 125.94(c)(6) could provide credit for technologi es such as barrier nets and behavioral technologies. EPA included a separate provisi on for existing offshore velocity caps at § 125.94(c)(4).

W ith respect to comments regarding the calculati on baseline used in the 2004 Phase II rule, EPA notes that facilities could demonstrat e other locational cr edits by documenting the difference in impingement rates or organism abundance at th e existing intake location and, for example, a comparable location along the shoreline at the fa cility. While EPA is not retaining this provision from the Phase II rule for r easons articulated at 76 FR 22185, EPA acknowledges that some facilities and their permit authorities have already developed documentation for such an approach. To the extent a handful of Phase II facilities have already developed information supporting their calculation baseline, EPA envi sions § 125.94(c)(6) will allow use of this information to demonstrate or show progress to wards demonstrating equivalent performance for the compliance alternative. With respect to comments regarding EPA’s methodology for calculating credits (including the sample equations provided in the Federal Register notices), EPA disagrees that the arithmetic average is inappropriate for calculating credit towards meeting impingement mortality or entrainment requirements; EPA has already evaluated other mathematical approaches and has rejected them (see TDD Chapter 11 and Essay 16A). EPA also disagrees that the equations in the final preamble will lead to an incorrect implementation of the rule. These equations were prov ided as an example of how the Director may calculate credit towards meeting impingement mortality requirement s and they represent one way in which credit may be calculated for a facility. With respect to long-term monitoring, as above, EPA disagrees that perpetual monitoring is necessary to ensu re long-term performance; for example, many of the opportunities for credit are easily verified through flow re duction calculations or through documented performance of the technology.

As to the commenter requesting a provision for an FDF variance, EPA disagrees that such a provision is either necessary or appropriate. Primarily, EPA notes that there are no FDF variances authorized for 316(b). Ho wever, even if such variances were authorized, today’s final rule offers a wide variety of compliance alterna tives for impingement mortality controls, as well as a site-specific determination for entrainment; as a result, there is no need to develop a variance provision.

In support of a comment disagreei ng with EPA’s assertion that fi ne mesh larger than 2 mm does not provide significant excl usion of eggs from an intake (and thus provides reliable entrainment reduction), a commenter provided citations with e gg sizes that exceed 2 millimeters. First, EPA notes a 2-mm diameter round egg can be squ eezed through a -2-mm square mesh. While EPA appreciates the comment and data, the fact remains that the vast majority of eggs and early life stages of larvae are smaller than 2 mm, as docum ented by the numerous bi ological studies in the record. See, for example, Bagenal (1971, DCN 12-6975) showing 4 of the 46 marine species evaluated have fish eggs that co uld potentially be larger than 2 mm. For freshwater species see, for example, Bonis ł awska et al (2001, DCN 12-6976) show ing both eggs and yolk spheres of species (other than trout and pike) have a mean diameter size smaller than 2 mm. Further, fish eggs are not solid spheres, as such they can be compressed or forced through openings slightly smaller than their natural diameter. Second, the commenter did not provide any details on whether the studies were conducted in the context of entrainment at an intake structure. For example, slot velocity has been identified as a ma jor factor in the ability of fine mesh screens to

Essay 16 119exclude both eggs and larvae. EPA agrees that so me larger eggs may be retained by larger slot sizes, noting that such situations are essent ially impinging the eggs. The overwhelming body of studies in EPA’s record clearly shows that most eggs are not retained on 2 mm or larger mesh sizes (and therefore would become entrained in absence of other controls), and that in most instances 0.5-mm mesh sizes are necessary to coll ect the majority of en trainable organisms to prevent them from being entrained. See for exam ple “Field Evaluation of Wedgewire Screens for Protecting Early Life Stages at Cooling Water Intake Structures: Chesapeake Bay Studies” (EPRI, DCN 10-5558). Further, EPA notes the organisms cited by commenters are too small (i.e., smaller than the 3/8-inch mesh size that defines an impingeable organism, see § 125.92) to affect the calculation of the performance stan dards for impingement mortality. See preamble Section VI for more information about why fine mesh is not BTA for entrainment.

With respect to the comment that some facilities are faced with hi storically low water levels and may require booster or emergency pu mps which do not have screens, EPA is aware that some facilities face critical shortages of cooling water, such as lowered source water levels that may require the installation of booster/ emergency pumps or other equipmen t. EPA notes that it visited several facilities that retrofitted to closed-cycle cooling as a remedy to this problem or a similar one (see, e.g., DCN 10-6524 and 10-6534). By c onverting to closed-cycle cooling, these facilities’ cooling water needs we re greatly reduced and the ability of the source water to provide sufficient flow was restored. Facility actions in response to decreased water availability and similar circumstances are beyond the scope of this rule, nevertheless EPA supports actions that reduce the withdrawal of water fo r cooling, such as reuse of pro cess water or gray water. The final rule has incorporated additional compliance alternatives that provide greater flexibility for facilities to meet the rule requirements while re ducing source water withdraw als such as reuse of recycled water and gray water (see § 125.94(c)(10)).

For information on how the final rule addresses subcategorization, including a framework based on waterbody type, refer to TDD Chapter 4 and Essay 19. For information about makeup withdrawals and how the final rule addresses fire suppression and other emergency withdrawals, refer to Essay 14. For information on how the final rule addresses cost-benef it or cost-cost tests, refer to Essay 15. For information on how the final rule addresses the entr apment and barrier net provisions in the proposed rule and closed-cycle cooling, refer to Essay 18. For information on how the final rule addresses credits for unit cl osures or retirements, refer to Essay 18. For information on prior installations of technologies, prior determina tions of BTA, and the use of existing documents, refer to Essay 22; EPA notes that many studies or technologies that have previously been conducted or installed w ill likely be acceptable under the final rule.

Entrainment Requirements Riverkeeper argued against a site-s pecific approach to en trainment, stating th at the proposed rule provided the Director with unlimite d discretion in what factors to consider in determining BTA. Additionally, they argued that un limited discretion is not equivalent to setting a standard. They added that states are ill-equipped to oversee the study process and to review the results.

Industry commenters overwhelmingly supported us ing a site-specific approach to address entrainment. Some commenters noted that the proposed rule did not specify how the Director would establish entrainment requirements and what factors would be cons idered (including those

Essay 16 120listed in the regulatory language). Other commenters added that a s ite-specific approach will lead to highly variable results, give n how open-ended the Director’s criteria are. Some commenters stated that a wide variety of considerati ons could affect decisi on-making on entrainment controls, including nuclear-fuele d facilities, previous effort s to address impingement and entrainment, lack of water depth, conflicts wi th navigation, and equipm ent changes that would trigger requirements under other re gulatory programs. Other commen ters stated that EPA should provide guidance and research on entrainment controls to th e Director. Another commenter stated that EPA should not use the phrase “m aximum reduction in entrainment warranted” to describe the development of entrainment BT A, as it may lead to inappropriate BTA determinations.

Commenters also advocated certain subcategor ies for entrainment requirements, such as no entrainment requirements for facilities located on lakes, for facilities withdrawing less than 5 percent of a river’s mean annual flow, or those fa cilities with a capacity utilization rate less than 15 percent. Each of these metrics was included in the Phase II rule. Some commenters advocated implementing entrainment controls in such a wa y that threatened and endangered species would not be adversely affected.

As discussed in the preamble and Essay 15, EP A determined that ther e are no technologies available, demonstrated, and feasible for which to establish national en trainment requirements, and instead has established a process in the rule to make site-specific entrainment BTA determinations. EPA disagrees with comments stating that the Dire ctor has been given “unfettered discretion” and also disagrees that it has not set a standard. The Director has been afforded significant flexibility in setting entrai nment requirements, but the final rule requires determination of site-specific entrainment contro l measures through a struct ured process that all facilities and Directors must follow. Also see Essay 10. EPA also disagrees with comments that the states are unprepared to undertake a site-speci fic determination for entrainment; as noted in the preamble and Essay 15, Directors have been using a site-specific approach for decades. Today’s final rule establishes a framework for submitting materials with the facility’s NPDES permit application, a process w ith which Directors are highly experienced. Today’s framework creates a more standardized set of expecta tions for both permittees and permit writers. A significant amount of information will be colle cted and submitted for the Director’s (and public’s) review. In many cases, this will include studies assessing closed-cycle cooling (as part of § 122.21(r)(10)) as one possible solution to address entrainment.

EPA also notes that, aside from advocating for cl osed-cycle cooling as the sole technology basis for the BTA entrainment standard (which EP A has concluded is not BTA for the reasons specified in the option selection section of the preamble), Rive rkeeper has not provided another viable, effective alternative that is widely av ailable for addressing entrainment in a national rulemaking. In the final rule, EPA has included direct guidance on factors that must be considered by the Director. EPA will evaluate th e need for further implementation guidance after promulgation of the rule. EPA notes that it has already provided a large quantity of information on entrainment controls in the TDD and recor d. EPA disagrees that the language used in § 125.94(d) is inappropriate, as it c onveys a need to be protective while considering a number of other factors.

Essay 16 121As described in the preamble, TDD, and Essay 19, EPA also examined a num ber of possible subcategorization strategies, including water body type, and determined no subcategorization schemes were supported by the data or EPA’s analyses.

As discussed in the preamble and above, EPA has established site-specific requirements for entrainment; as a result, the Director may cons ider a variety of fact ors in developing those requirements, including those suggested by the commenters. For information on how EPA considered impacts to threatened and endangere d species, refer to Essays 10, 69, and 72. Also refer to Essay 15 for a discussion on the role of costs and benefits in determining BTA in the final rule.

Technologies to Address Impingement and Entrainment For a more detailed discussion of the technolog ies and operational measur es available to reduce impingement mortality and entrainment and a summary description of their effectiveness, refer to preamble section VI, Essay 18 and the TDD. Th is essay subsection is more narrowly focused on the process used to select technologies as the basis for BTA for the final rule.

Commenters generally agreed that modified tr aveling screens are a r easonable choice as the technology basis for establishment of the impingem ent mortality standard, as they are in wide use and have well-established performance. Thes e commenters argue, however, that modified traveling screens are not feasib le at all facilities and that EPA should consider including additional technologies as candida tes for BTA. Commenters also stated that some modified screens may not require all of th e features listed in the proposed rule to be effective. Other commenters argued that EPA should limit the level of modification that a Director may require as upgrades to a modified traveling screen. Some commenters also stated th at modified traveling screens can still damage fish. Ot her commenters stated that fish returns should not be required.

Riverkeeper supported the requirements to mainta in a maximum of 15 percent screen blockage and to eliminate carryover. I ndustry commenters opposed the requi rements, stating that these requirements were difficult to implement and measure. Those commenters added that the requirements are unnecessary, as facilities have an incentive to keep their screens clear to promote proper operation of the cooling system a nd prevent debris carryover and damage to the cooling system.

Some commenters stated that EPA should not reject fine me sh screens as a technology, as the technology is evolving and may be the only technology available to reduce entrainment at some facilities.

Some commenters stated th at the final rule should require the installation of a screen of some variety.

Other commenters state that EPA s hould include an analysis of co st and other impacts that may result from facilities that ha ve installed (or begun installing) a given technology that ultimately conflicts with or otherwise does not satisfy the final rule.

EPA concludes that modified traveling screens w ith fish return are the proper technology basis for establishment of the best technology availa ble impingement mortality standard for the

Essay 16 122reasons previously explained. With respect to the availability of modified traveling screens, EPA disagrees that the technology is not available. See section VI.D of the preamble and Chapter 6 of the TDD. However, as previously discussed, trave ling screens may not be the most cost effective technology for all facilities. Consequently, also as discussed previously, the final rule includes seven compliance alternatives for the IM performance standards. Additionally, for the final rule, EPA changed its definition of m odified traveling screens from that of the proposed rule to include other screens that have the same critical protective features, such as WIP screens, Geiger screens, and Hydrolox screens. This is consistent with the data used to determine the impingement mortality performance standard, wh ich includes data from studies for a Geiger screen and the WIP screen. Refer to the TDD and Essay 16A for more information. With respect to the fish protection features on modified traveling screens, EPA agrees that a modified traveling screen can be effective even if it does not employ all of the features described in the final rule; however, in order to utilize the streamlined option for screens (§ 125.94(c)(5)), the rule requires that the screens meet certain technical spec ifications. The rule does not require that facilities comply with the IM standard via the streamlined compliance alternative for screens so facilities that wish to use other technologies or screens that do not meet the required technical specifications have the option of doing so as long as they can comply with one of the other six IM standard compliance alternatives. With respect to damage to fish by modified traveling
screens, EPA recognizes that these screens will not achieve 100 percent reduction in impingement mortality, but notes that the Clean Water Act simply requires that adverse impacts be “minimized” and not “eliminated.” EPA notes that no technology completely eliminates IM and that other technologies evaluated that likely exceed the performance of traveling screens are not widely available and are thus , not BTA. EPA’s analysis conf irms that modified traveling screens can be highly effective when properly designed and operated. For information on fish returns, refer to Essay 18.

With respect to the screen blockage and carryover requirements, EPA determined that these requirements are not necessary because facilities already have an incentive to maintain clean screens (to ensure continued opera tion of the facility). In add ition, these requirements could be extremely difficult for a facility to measure. Th erefore EPA has eliminated them from the final rule. EPA notes, however, that the principles behind those requirements (e.g., maintaining a clean screen) remain important and should be cons idered by the Director in determining whether an intake technology is being properly operated a nd maintained. In addition, the Director could determine that circumstances dictated inclusion of such requirements as appropriate conditions of a facility’s permit. EPA expects such factor s will be identified in the technology optimization study and may be incorporated as permit conditions where appropriate.

With respect to the comment that EPA should not determine fine mesh screens are not BTA as the technology is evolving, EPA agrees that fine mesh scr eens can be effective in reducing entrainment for certain species and in some loca tions. For this reason, fine mesh screens are one technology that can be considered by the Dire ctor as BTA for a given site. However, as described in the preamble, TDD, and other essays , EPA does not consider fine mesh screens to be a nationally available tec hnology to address entrainment. EPA considered the costs and availability of fine mesh scr eens, and found that the conversion of course mesh to fine mesh would cause an increase in th e number and size of screen banks to accommodate the reduced through screen area. While a doublin g of required screens is not unus ual, in a substantial number of instances the required increase in screen bank s could exceed a 5-fold increase, which is a level

Essay 16 123of expansion of the existing CWIS that many faci lities would not be able to accomplish with existing available waterfront acres. EPA also rejected fine mesh because of the low survival of most larvae and many eggs; see TDD and preambl e for further discussion. Under the final rule, facilities will provide the Director with info rmation for each facility including costs and performance of fine mesh screens, thus enabling th e Director to fully consider fine mesh screens as a potential site-specific BTA technology. The site-specific BTA entrainment framework in today’s rule, by its very nature, would enable evolu tion in fine mesh screens to be considered, as appropriate, in determining the site-specific BTA requirements.

EPA disagrees with comments claiming that screens should be required in all cases, as other technologies may perform equal or better than screens, when avai lable for a specific site. EPA further disagrees that the fina l rule should require some type of screen, as some intake configurations do not need a screen to be effective. For example, a velocity cap may not have a screen, but due to its operation and location, it can be deemed BTA. Similarly, closed-cycle is a high performing technology that performs better than screens. Thus a facility with properly operated cooling towers should not have to install modified tr aveling screens in addition. EPA notes that most intakes do have screens of some type to prevent the en try of debris into the cooling system, but does not see a need to require screens at all facilities.

With respect to consideration of costs in curred for technologies already installed, EPA conducted a cost and impacts analysis for this rule, and fo und that the BTA require ments of the rule are economically achievable. EPA disagrees that EP A’s analysis must in clude other expenses already undertaken by the facility, noting that the rule analysis of cost reflects the incremental costs of a facility. To the extent a facility has de bt, this is reflected in the EA and this analysis may be considered to include technologies and operating practices alre ady in place. EPA found that the rule is economically ac hievable; see preamble section VII. The flexibilities in the rule provide alternatives that may be less costly for some facilities. To the extent a facility is developing a new technology, the “systems of t echnologies” and the IM performance standard compliance alternatives are both available.

Essay 16 124

### Essay 16A: Impingement Mortality Performance Standards

EPA received numerous comments concerning the proposed monthly and annual average impingement mortality performance standards. Comments assert that the proposed standards would be too stringent and f acilities using the model technol ogy would not achieve them on a consistent basis. The comments also claim that EPA based the proposed standards upon data that did not fully capture site-specific factors contributing to variability in both impingement rates and resulting impingement mortality. Commen ts also expressed concern regarding the methodology used to derive the performance standards.

Introduction This essay describes the comments on the propos ed impingement mortality (IM) performance standards and EPA’s subsequent reevaluation of criteria for the data acceptance and the methodology ultimately used for the determina tion of the IM performance. The proposal included both a monthly average and an annual av erage numeric IM performance standard; both were based upon data from three facilities select ed using a well-defined set of criteria. Comments generally suggest that EPA either delete any numerical standards altogether, reevaluate the criteria for data acceptance, esta blish less stringent requirements, and provide for pre-approved compliance approaches.

Because EPA has developed different compliance strategies than typically used for annual average limitations promulgated under the Clean Water Act, EPA changed the name of its proposed annual average impingement mortality lim itation to “IM performance standard” for the final rule. 13 EPA is doing this to help make it clea r that CWA section 316(b) requirements are not effluent limitations guidelines and standards (ELGs). In the record, EPA may also refer to the final IM performance standard as the 12-month percent survival performance standards, the percent survival standard, or pe rcent SPS. See Legal Authority in the preamble for a discussion of the invitation to look at the CWA factors for EL G in establishing CWA section 316(b) requirements.

EPA notes that the final rule deletes the requireme nt for a monthly standard, as discussed below. Further, compliance strategies including cal culations for demonstrating compliance when meeting a 12-month IM performance standard are different than those used for annual average limitations, therefore the final rule specifically refe rs to 12-month performance standard to avoid possible confusion. Specifically, the final rule includes a 12-month IM performance standard, which is not the same as an annual limitation. To further avoid confusion over the meaning of “annual” or “annual average” the ru le precisely refers to the requirement as a “12-month” impingement mortality performance standard. This is a more transparent description of what the performance standard requires, as well as wh at the performance standard is based on.

Upon reevaluation of the available studies and the analysis, EPA revised the data exclusion criteria, thereby increasing the si ze (number of studies) and variabil ity of the database. The final

13 Throughout this document, EPA refers to the proposed lim itations as standards. EPA is taking this approach in this essay so that the reader can easily compar e the proposed “standard” to the final standard.

Essay 16A 125database consists of data from 17 facilities located in a large geographic area stretching from Massachusetts to Florida and as far west as Minnesota and Nebraska. This increased dataset addresses both variability in th e rate of impingement and the s ubsequent rate of impingement mortality. For the 12-month IM performance sta ndard in the final rule, EPA used the same statistical methodology as it had proposed, because it is still an appropr iate method for the available data. EPA did not receive any informati on or data to the contra ry. By applying this methodology to the revised database, EPA calcu lated that the 12-month IM performance standard was 24 percent. This means that no more than 24 percent of the impinged fish and shellfish may die or alternatively at least 76 percent of the impinge d fish and shellfish must live. While the resulting IM performance standard is approximately double that of the proposed rule standard, the final rule dataset addresses concerns about (1) the stringency of the proposed annual standard, (2) a standard based on three best-p erforming facilities, and (3) facilities used in calculating the standard are a ll located in a single geogra phic region. See more detailed discussion below. In addition, by adopting th e 12-month IM performance standard, EPA increased the regulation’s flexibility to addre ss industry concerns about compliance with annual averages. With respect to comments about rate of impingement and the specific comment about a facility obtaining credit for measures that reduce the rate of impingement in the first place, a facility may choose to demonstr ate the rate of impingement as part of the “systems of technologies” compliance alternative; see preamble and the rule at § 125.94(c) for more discussion. This essay consists of six main sec tions that address detail ed comments about EPA’s justification for the proposed st andards, alternative forms of the standards, data selection, statistical methodology, achievability and compli ance issues, and additional public review.

Justification for the Proposed Standards Comments express concerns about EPA’s jus tification for the proposed annual average and monthly average standards. This section summari zes the comments about both types of standards and provides EPA’s response. In particular, this section addresses why a 12-month performance standard is appropriate, and why th e monthly standard is unnecessary.

The proposal cited the regulation for the pulp and paper category (40 CFR 430) as an example of a Clean Water Act (CWA) rule with an annual average limitation. Comments assert that EPA’s adoption of the annual average concept was base d upon an inappropriate and faulty comparison. They assert that natural resource manageme nt required by 316(b) differs from the pollution control required by effluent guidelines. They as sert that controlling po llution in wastewater discharges is not the same as controlling biologi cal organisms that come in contact with cooling water intake structures. Within any industrial e ffluent guidelines category or subcategory, waste streams are likely to be similar between facili ties and treatable with the same or similar technologies, regardless of where the facilities ar e. Because of what commenters consider an imperfect analogy between control of industrial waste streams a nd intake structures, comments conclude that EPA cannot justify an annua l average limitation for 316(b) based upon the construct established in the pulp and paper annua l effluent limitations or other annual CWA limitations. Instead, for facilities subject to 316 (b) requirements, comments assert that the biological conditions are widely variable at intake structur es throughout the country, thus requiring different technologies for successful IM control.

Essay 16A 126EPA disagrees that facilities cannot effectivel y apply BTA technology or its equivalent in a consistent manner within the biological conditions specified in the final regulation. EPA’s record shows dozens of studies specific to traveling water screens, indicati ng the status of the technology as a widely available, demonstrated, and feasible technology. Further studies show similar levels of performance with screens other than traveling screens, but with the same types of fish protection features. Thus EPA’s record shows a minimum level of performance can in fact be obtained with certai n technology. More specifically, EP A’s record shows 17 studies evaluating technologies with the fi sh protection features found in m odified traveling screens with fish returns, and these studies s how the technology does in fact pr ovide a consistent level of IM control. This consistent level of performance is further enhanced because the definition of impingement in the rule excludes organisms smaller than a 3/8-inch mesh si ze; at this mesh size, impingement does not include the most fragile lif e stages (eggs and larvae). EPA’s analysis shows when fragile species are excluded from the 12-month performance standard calculation, there is very little variation in performance exist across geographi c locations. As discussed in the preamble, EPA is: keeping the definition of impinge ment in the final rule, deleting the species of concern provision, and is adding a definition of fragile species to the rule. These three components clearly articulate applicability of the performance standard s. A thorough review of these studies demonstrates for non-fragile sp ecies, the performance for properly operated technology is in fact highly pr edictable. See TDD Chapter 11.

EPA recognizes that facilities may prefer to appl y different treatment st rategies at different intake locations, particularly where intake loca tion or other management measures have resulted in reduced rates of impingement. EPA agrees that a facility that has considerably reduced the rate of impingement should be able to get credit for such reductions. For this reason, the final rule allows a systems of technology approach by where a facility can demonstrate reduced rates of impingement as part achieving a level of pe rformance comparable to the 12-month IM performance standard. See the Basis for the Fina l Regulation section of the preamble for further information.

While EPA could have included a monthly perf ormance standard and commensurate biological compliance monitoring, EPA found that achieving the 12-month performance standard would achieve the same overall environmental improve ment as a monthly performance standard. As discussed further below, the performance of th e BTA technology is consistently achievable over the course of a year, and the performance is consis tent across the wide rang e of intake structures, waterbody types, and geographical locations. Furt her, the 12-month performance standard will require a facility to actively evaluate perf ormance during the 12-month period enabling the facility to optimize the technol ogy to improve performance to c ounter balance a result above the standard by one below the standard. If EPA ha d included a monthly standard, it would have similarly needed to incorporate allowances for exceedances. Allowing for exceedances would have provided no incentive for improving operations for such exceedances. Therefore, EPA concludes the additional burden and expense of a monthly performance standard would not increase the environmental benefit over that already achieved by fac ilities employing various technologies to meet the 12-month performan ce standard. Thus the 12-month performance standard on its own is appropriate , and there is no need for mont hly performance standards. EPA notes that, contrary to commenter s’ assertions, EPA is not rely ing on the use of annual average limitation in other regulations as the justification fo r its use here. EPA’s cite to a past example of

Essay 16A 127where EPA used an annual average lim itation ap proach within its CWA program demonstrates that this approach has been validly used in other cases.

For the proposed monthly average standard, comme nts assert that its pu rpose and benefits are unclear, and thus, EPA should delete it from the final regulation. Comments claim that a monthly standard has numerous drawbacks due to factor s including the seasonal nature of impingement, water temperature, salinity, fish abundance, and community composition. Other comments assert that monthly data would rely on frequent occurre nce of low impingement catches which result in small sample sizes and render monthly estima tes imprecise. Other comments are concerned about the high risk of false violations associated with monthly standards and incompatibility of monthly IM standards with credits for alternativ e technologies. Other comments assert that EPA should only use an annual standa rd, and not a monthly average, to avoid penalizing facilities during any months when seasonal measures ar e not in place. Some commenters favor the monthly standard, and support fr equent biological monitoring to demonstrate the monthly standard is being met.

EPA disagrees with the implication that faciliti es cannot control BTA performance on a regular and ongoing basis. However, EPA agrees that a monthly IM performance standard is not necessary in order to achieve the desired long term IM perfor mance for the reasons explained above. Therefore, the final rule doe s not include a monthly average.

The final rule also uses the IM performance standard as a measure of performance for determining which technologies should be deem ed pre-approved, which technologies should be eligible for streamlined compliance such as reduced monitoring, and provides the permit authority a clear and transparent metric for comparison purposes when determining whether technologies other than modified traveling screens are appropri ately deemed BTA for a given location.

Alternative Forms of the Standards The EPA expressed the proposed monthly average and annual av erage standards as maximum percentages of impingement mortality that faci lities were not to exceed, on average, in each month or 12-month period identified by the permit authority. Comments suggest several alternatives to the percentage basis for the IM standards. The suggested alternatives include reduced impingement measures, biomass, impingem ent mortality loss, percent survival, speciesspecific mortality rates, or arbitrary values.

Riverkeeper’s comments assert that EPA shoul d not establish the proposed standards for IM because it allows the technology to impinge an unlimited number of fish and requires that the facility determine how many of each species survive. Riverkeeper recommends a standard based on reduced impingement rather than impingement mortality (such as an intake velocity standard), because it would be more practical, certain, and effective by preventing impingement and thereby avoiding sub-lethal harm. The EPA agrees that it is desirable to prevent both impingement and impingement mortality. As expl ained in the preamble, EPA considered other technology bases such as reduced intake veloc ity (i.e., 0.5 ft/sec), far offshore locations, and closed-cycle cooling that are capable of reducing both I and IM. The EPA found that reduced intake velocity and closed-cycle cooling are both more effective at reducing I and IM than the annual standard based on the performance of well -operated modified traveling screens. Because

Essay 16A 128the performance of these two technologies excee ds the performance of well-operated modified traveling screens, the final rule includes compliance alternatives based on these two technologies. However, the EPA fi nds that reduced intake velocity and closed-cycle cooling are not available for many facilities, and neither of these technologies are therefore the basis for BTA. Far offshore location alone did not consiste ntly reduce impingement to the level of welloperated traveling screens. See Section VI of the preamble and Essay 17 for further discussion.

Because they consider a requirement for purely m eeting a percent survival rate (IM standard) to be a poor measure of environmental impact, ot her comments suggest that the EPA base the limitation upon biomass instead of an organism count or percentage . In support of their comment, they also assert that for the purposes of counting impinged mort ality, a fish egg should not count the same as a grown fish. First, EP A received limited data from three facilities upon which it could base a standard on biomass, and found that standards base d on biomass required a large amount of waterbody specific data that the EPA did not have and that commenters did not provide. Therefore a biomass standard could no t be determined. Second, EPA disagrees that a standard based upon biomass would be appropriate because it would not protect species with low biomasses. In other words, under a biomass a pproach the facility could impinge and kill numerous small sized fish as long as the prescr ibed mass standard had not been exceeded. Third, EPA disagrees with the need for an approach to IM that counts eggs differently from grown fish. EPA considers an adjustment for fish eggs to be unnecessary, because the IM performance standard applies only to impingeable organisms. Impingement is defined in the rule at § 125.92. The EPA found that the majority of eggs are sm aller than a 1.0-mm mesh, and industry-supplied data showing that only in the rarest of circumstances are eggs larger than 2.0-mm mesh. These data supports EPA’s final rule definition for impi ngement. To be consistent with these findings, EPA notes that the screens forming the basis for th e final rule performance standards must have a maximum spacing of 0.57 inches (roughly 1.4 cm).

Another comment suggests that the final rule di stinguish between “impingement mortality rate” (the fraction of impinged fish which die from impingement) and “impingement mortality loss” (mortality losses expressed as a percentage of baseline conditions as described in the NODA). EPA agrees with the comment in principle. The proposed regulatory de finitions distinguish between impingement and impingement mortalit y. In the NODA, EPA further clarified the distinction, and made it clear th at reductions in impingement were intended to count as reductions in mortality. EPA provided examples in the FR notice. For example, under certain compliance alternatives, the final rule provides for an allowance for the reduction in fish potentially impinged when considering the numbe r that are actually impinged by the CWIS. For example, a facility may use acoustic deterrents to prevent a species from impinging the first place. That facility could demonstrate the rate of impingement at th e CWIS both with and without the acoustic deterrent. EPA considers this reduction in impi ngement to be an equivalent reduction in IM, and thus, the resulting calculated IM rate is an estimate of the efficacy of the overall combination of technology and operational measures at that intake. This estimated IM rate is the equivalent of “impingement morta lity loss” as defined by the comment. In the final rule, EPA is maintaining the defi nitions of me and IM in the regulatory language; thus the EPA continues to clearly distingui sh between the two concepts and considers any additional terminology to be unnecessary.

Essay 16A 129EPA disagrees with comments that survival perc entages instead of mort ality percentages should be used as the basis for standards developmen t. Because percent IM and percent survival together should sum to 100 percent, one can be used to calculate the other (e.g., percent survival=100- percent IM). Performance studies we re not found to consistently report one metric over the other. The final rule’s IM performa nce standard places an upper bound on mortality, that is, the percentage of fi sh that die from impingement. In contrast, placing a lower bound on survival could be viewed as setting less stringe nt and therefore less prot ective standards. EPA’s selected final rule approach, as discussed a bove, requires an optimization study. This approach precludes facilities from doing the bare minimum to achieve the performance standard. EPA notes that some comments appear to confuse mortality and survival. For example, Riverkeeper incorrectly states that the proposed annual standard of 12 percent (final IM performance standard is 24 percent) would have allowed 88 percent (i.e., 100 percent -12 percent =88 percent) to die, when the correct value is 12 per cent. Contrary to another commen t’s assertion that the regulation does not consider stressed fish (e.g., the comment cites the Huntley study), the regulation requires fish to be held for a period of time afte r impingement to determine if any injuries were severe enough to cause mort ality. In the final rule Latent mortality is defined at § 125.92 and means the delayed mortality of organisms that were initially alive upon being impinged or entrained but that do not survive the delayed e ffects of impingement and entrainment during an extended holding period. Delayed effects of impingement and entrainment include but are not limited to temperature change, physical stresses , and chemical stresses. The EPA has clearly identified latent mortality to ensure it can be determined whether any mortality is a result of impingement. See discussion about holding time s in the Data Selection section below.

The proposed rule would allow the Director to determine site-specific species of concern for which the performance standards would be appl ied. Comments suggest th at EPA should further consider species-specific mortalit y rates in revising the proposed standards for the final rule. For example, some commenters assert that EPA shoul d incorporate species-specific information into the revised standards and cite an UWAG analysis as supporting the approach. Based upon a more inclusive BTA data set than the EPA’s proposed database, UWAG’s Table 2 presents average percent IM values of 5 percen t, 17 percent, and 39 percent for high, medium, and low survival potential species. (UWAG 2974 Attachment 2 Tabl e 2). Comments assert that the analysis demonstrates the need for separate standards for fi sh of different survival potentials. EPA agrees in part. First, the technology basis for the IM performance standard in the final rule will not control IM for fragile fish species. EPA did not identify a nationally app licable technology that could serve as a BTA basis for standards specific to fragile species. For example, EPA found that a low intake velocity such as 0.1 ft/s could be protective of salmonids, a nd behavioral deterrent systems could be tuned for some fragile species, however neither of these technologies is widely available to the industry. Fragil e fish species are specifically ex cluded from the IM performance standard in the final rule and the final rule incl udes a definition of fragile fish corresponding to the exact data and methodology used by EPA to cal culate the performance standards. The final rule does not establish national requirements for facilities to control IM of fragile fish. Second, after evaluating differences in fish mortality rates, EPA based the final rule’s IM performance standard upon data for non-fragile fish, as expl ained in Essay 22. The EPA made this change to ensure the regulatory definitions and the IM performance standard are clear, reproducible, transparent, and correlate to EPA’s methodology for calculating the IM performance standard. Based on the costs of monitoring and biologi cal evaluations provide d in comments, EPA determined that additional regulatory require ments to document further distinction between

Essay 16A 130species would be an unnecessary burden, as it would result in unnecessa ry complications and expense for facilities in monitoring and eval uating impinged fish sp ecies. Further, the commenter’s approach is not necessary because the final rule is readily implementable and applicable nationally, ensures en vironmental protection, and is achievable. Finally, such an approach could result in a different technology ba sis for each classification of fish survival (fragile vs. hearty), and the different technologies may be in compatible. Again, the resulting level of complexity at some locations would be unworkable.

Other comments suggest arbitrary values for the standards. One suggests that the final rule specify a value of 50 percent for the annual av erage standard. No data was provided supporting the approach. Another comment suggests values of 20 percent and 39 percent to help account for variability, derived using EPA’s proposed sta ndards but adjusted downwards by 10 percent. Commenters based this approach on EPA’s Phase I requirements that considered 90 percent of BTA to be comparable performance. The 10 percen t margin of error was appropriate in Phase I because the new facility rule requi red EPA to predict the effect of the regulatory approach at a new facility based on limited empirical data. The variety of methods, sources, underlying studies themselves, sampling errors, and natural fluctuations also skew the results on a day to day basis. See Phase I TDD, Chapter 5, EPA-821-R-01-036. Th e Courts found in favor of EPA using the 90 percent comparable to indicate in the re gulation the amount of uncertainty that was considered “tolerable.” In contrast, today’s existing facility final rule includes a more comprehensive set of data; the data used to determine the IM performance standard already include variability across species , location, waterbody type, and othe r factors; and the final rule performance standard reflects 12 months performa nce rather than daily. Therefore, additional adjustments for variability are not necessar y. EPA thus disagrees with the commenter’s recommendation of using 90 percent comparable, an approach that would lower what has been identified as an achievable standard by an a dditional 10 percent. EPA disagrees with these comments and has based the final rule’s IM pe rformance standard upon facility performance studies with the data selected us ing well-defined criteria as sp ecified in the proposed rule and NODA, and modeled using well-known statistical concepts, as furt her explained in the next two sections.

Data Selection EPA based the proposed standards upon eight data se ts from three facilitie s, all located in the State of New York. Comments e xpressed concerns about the sa mple size, limited geographic region represented in the data sets , variability reflected in the data , data exclusions, data errors, and documentation. This section summarizes th e comments and provides EPA’s reevaluation of the data for each issue raised in the comments.

Comment Summary The comments raise many issues related to the EPA’ s selection of the data used as the basis of the proposed IM standards. This section pr ovides a summary of the comments, followed by sections that describe EPA’s evaluation of the comments.

Comments describe several issu es related to the EPA’s data selection. Comments assert the proposal data were insufficient (i.e., too small a sample size) for the modeling of a statistical

Essay 16A 131distribution. Comments also asse rt that the proposal data did not reflect variations due to waterbody type, geographic location, species present, environmental conditions, operating parameters, seasonal variability (e.g., in fish sp ecies, abundance, and impingement), and year to year variability. Some comments assert that the ei ght data points used in the analyses were not independent observations but were artificially created; they note that the assumption that there is independence and adequate replication for testing monthly variability in IM is not statistically nor scientifically supported. Some comments clai m that the EPA made errors in selecting or labeling certain data sets. Other comments reco mmend that the EPA should change its criteria to include data from specific studies. Some co mments note that the EPA relied on second-party reviews of studies, not the more complete, original study reports. Other comments argue that the EPA should not eliminate laboratory-based studies . Other comments claim that the requirement that acceptable studies contain reported values that are “actual measurements” of IM is needlessly restrictive, as it would preclude consideration of studies based on modeling or estimates. Other comments note that the EPA’ s proposal documentation did not identify the specific criterion used to eliminate specified da tasets, making it impossible to determine if the EPA had applied the exclusion criteria correctly.

Comments on the EPA’s holding time restrictions claim that they establish an arbitrary range of holding time conditions for a test method that is highly sensitive to such conditions; however, there is considerable disagreement in r ecommendations and concerns. Some comments recommend that the IM standard database should exclude data for holding times greater than 48 hours because the data may reflect mortality as sociated with holding rather than from the impingement and collection process. Other comme nts argue that the sta ndard database should include data with holding times greater than 48 hours because there are several studies (e.g., Beak 1987; Tetra Tech memo DC N 10-6709) in which longer holding periods did not result in high mortality. Comments also no te that data for holding times less than 24 hours and interim evaluations during a longer holding time can provide useful informa tion. Still others assert that EPA has no technical or scientific basis fo r assuming that the standards based upon data calculated using a 24-hour holding period ar e achievable at a 48-hour holding period.

EPA’s Reevaluation of Data and Response to Data Selection Comments In response to comments with data selection c oncerns, EPA performed a comprehensive review of the available data sets. As explained in the proposal’s Technical Development Document (TDD) Chapter 11.B, EPA examined 170 documents for potential data sets to use as the basis of the proposed IM standards. In its reevaluation of the data, EPA compiled the data received in comments, and solicited data from commenters th at claimed to have additional data supporting their position. After receiving all data, EPA reviewed the 207 newly received documents for potential data sets. As explaine d in the preamble to the final re gulation and in Chapter 11 of the TDD, EPA revised its data selecti on criteria so that the final rule ’s IM performance standard is based upon a larger set of data, num ber of facilities, and broader geographic region than used for the proposed standards. EPA considers facility le vel performance to be a critical factor in determining the annual average standard. By revisi ng the data selection criteria, EPA is able to include more facility level data in its calculati ons; thereby addressing commenters concerns that it is too limited (e.g., geographic area, environmental conditions, sp ecies, etc.) while ensuring the limits represent the BTA technology basis. The resulti ng data set contains data from 17 facilities

Essay 16A 132with traveling screens with post-Fletcher modi fications. The 17 facilities collectively provided data for facilities in 11 states and more th an 1500 sampling events beginning as early as 1977.

Other commenters continue to take the position that EPA did not collect sufficient data. EPA disagrees. For more than 10 years, EPA repeatedly requested the industry to provide data for the model technologies and explaine d its rationale for requesting th e data, including but not limited to requests in the Phase II rule, the Phase III ru le, this proposed rulemaking and the subsequent NODA. In the EPA’s view, numerous opportunities to collect data and provide information over the last 10 years provides additiona l support that the actual data in front of the EPA at this time is both representative and appropriate and is the best available. In developing the final regulation, EPA used all available relevant data to maxi mize the number of facilities, geographic regions, waterbodies, seasons, species, holding times, and years present in the data. EPA has all available data, even if the data is limited, with which to set the standards, t hus EPA’s approach is reasonable. See e.g., BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 652-653, (1st Circuit, 1979).

Some commenters advocated inclusion of specific da ta in the calculations, such as data from particular facilities along the West Coast or Ha waii, or specific faciliti es. Commenters suggest inclusion of their chosen data would address concerns over variability between locations.

Contrary to assertions in comme nts, EPA has not seen any pattern s in the data underlying the IM performance standard that suggest performance varies by waterbody type s that would possibly affect operations of the model technologies on the West Coast (or other geographic areas). Nor do comments identify any factors that might infl uence performance of the model technologies by geographic region or submit any data to support this assertion. In selecting data as the basis of the IM performance standard in the final rule, EPA applied its criteria to data from all locations. Because none of the data from We st Coast or Hawaiian facilities met EPA’s final data criteria, none was included in calculating the IM perfor mance standard. Upon further review of the specific species identified in the data obtained from the West Coast or Hawaiian facilities, EPA finds that similar species (same Genus or family, for example) are indeed represented in the data from the 17 facilities. As anot her example, the EPA eliminated the proposal requirement that species must be typical of the location. This pr ovision excluded certain data from the Salem facility. However, the documentation for the Salem data identify them as estimates (Ronafalvy (2000, page S381 refers to the IM as “estimate average proportion”) and EPRI (2007, e.g., Table 2-12 labels all survival rates as “estimates” on page 2-29)). As explained in TDD Chapter 11, the selection criteria required that the data were actual measurements, and not estimated data. Therefore EPA did not include these data in its calculations. See TDD for more information.

Some commenters suggested EPA created data for calculating th e performance standard. EPA disagrees that it has in any wa y artificially created the data used as the basis of the IM performance standard. It has based the IM performance standard upon sampling events conducted and reported by others. These data sets are in the record. EPA has applied widely accepted statistical procedures in aggregating the data and developing the 12-month performance standard. Comments express concerns that per cent IM from different sampling events at a facility may be statistically related to one anot her (i.e., not independent); however, EPA modeled the IM performance standard, not the individu al sampling events. EPA need only consider independence between the mutually exclusive, approximately 12-m onth periods in the data from

Essay 16A 133each facility. When data are said to be positively autocorrelated, it means that measurements taken at specific time intervals (such as 1 da y or 2 weeks apart) are related, and thus, not independent. To determine if autoco rrelation exists in the data, a statistical evaluation is required using many measurements for equally spaced interval s. With the data provided by industry, all of which cover relatively short time periods, it is not possible to conduct a rigorous evaluation of independence of facility performance from year to year. However, EPA considers its influence on the value of the final IM performance standa rd to be minimal based on its autocorrelation analyses using all available data that meets the requirements of such analysis. Although many facilities provided data collected for more than 12 months, it was possible to separate the data into separate (approximately) 12-month periods for only one facility (such as data for Somerset). After separating the Somerset data into two 12- month periods, EPA averaged the two values to obtain a single value for Somerset to use in the sta tistical modeling. Any effect of dependence between Somerset’s two IM rates would have been minimal because EPA used their average, not the two separate values, in the statistical mode ling. In addition, Somerset’s data would not have had an undue influence on the value of the fina l IM performance standard because it provided only one of the 17 annual average values used in the statistical modeling to determine the final IM performance standard, and not 2 of the 17 as suggested by commenters.

For the proposal and final rule, EPA cites certain studies as described in second-party reviews conducted by EPRI; however, EPA did not rely solely on the second-party reviews. EPA appreciates the reviews conducted by organization such as EPRI , and used such reviews to obtain additional original studies. These studies are in the record, and were used to glean additional information about the studies conditi ons and the technologies reviewed. Although the second-party reviews generally pres ented fewer details, they conso lidated the results in a format that facilitated EPA’s data extraction. To avoid the appearance of having double-counted data sets, EPA cited only the second-pa rty reviews and provided refere nces to their consolidated tables.

Specifically, EPA reviewed three studies for th e Huntley, Roseton, and Arthur Kill facilities because comments asserted that EPA had incorrectly incorporated their data into the proposal’s standards database. For the Huntley study from 1999, a comment expressed concerns about EPA’s use of the data, and suggests that Huntley could not meet the performance standard that based on Huntley’s own data. EPA disagrees. Cont rary to the comment’s assertion, Huntley’s data with an average percent IM of 1.6 percent demonstrates better control than would have been required by either the proposed annual perfor mance standard and certainly the final IM performance standard. Commenters do not desc ribe how any perceived shortcomings in Huntley’s study would have affected the perf ormance data. For example, although Huntley shortened its planned sampling time and did not sample for the entire 12 months, EPA has determined that the study still provides IM data that reflects the performance of the model technologies over the course of an entire year. See the TDD for further discussion of the criteria for long term data collection. Because the Huntley data meet the revised criteria and commenters have provided no data to the contrary, EPA has a ppropriately continued to include the data from 1999. For the Roseton study, comments identified data as coming from a documen t that does not, in fact, contain data for Roseton. The comments re fer to Micheletti, W. and J. Burns, Estimating Energy Penalties for Wet and Dry Cooling System s at New Power Plants (2003) (EPA Docket OW-2002-0049 DCN 6-5046H). After reviewing its reco rd index (the DCN and report title refer to different documents), EPA concluded that the comment refers to the DCN, and not the cited

Essay 16A 134report. The cited report was not provided to EPA. DCN 6-5046H is a document by Johnson and Moser entitled “Fish Return System Efficacy and Impingement Monitoring Studies for JEA’s Northside Generating System.” In conclusion, EPA ag rees that the data from this report are for JEA Northside, and not Roseton, and has correct ed its database. For the Arthur Kill study, another comment questioned the values shown in Exhibit 11-4 of the TDD. The comment appears to only have considered data from Tabl e 4 of the Arthur Kill study. However, the Arthur Kill study also provides data in Table 7 which were collected from the same screens and sampling event as the data from Table 4. Thus, EPA has appropriately combined the data from the two tables in the Arthur Kill study Exhibit 11-4.

Comments identify three studies, Fletcher ( 1986 and 1990) and McLaren and Tuttle (2000), as additionally relevant to the pr oposed performance standards development. The comments also recommended that EPA change its data selection crit eria so that IM data from these studies could be included in developing the final IM perf ormance standard. However, despite a follow-up request, the commenter did not pr ovide EPA with a copy of Fletch er (1986), and therefore, EPA could not evaluate that set of data. EPA disagrees with the other comments. EPA finds the final criteria are appropriate; see TDD Chapter 11. Specifically, inclus ion of data from lab studies are not appropriate because these data do not refl ect the same operating conditions in which the technologies are actually employe d, such as trash and debris lo ading and weather events. While it is an important study of traveling screens, Fletcher’s 1990 study does not contain any IM data because its focus is on engineering and efficien cy aspects. EPA’s evaluated the McLaren and Tuttle report from 2000 (for the complete cita tion, see Document ID 64 in TDD Chapter 11, Appendix A). Because the data in this report fo r Somerset meets the fina l rule data selection criteria, EPA incorporated the Somerset data from Table 3 into the standard database. It excluded the data from Table 5 because the data represent a period longer than specified in the criterion (i.e., approximately 12 months). EPA also notes that its record includes a second report by McLaren and Tuttle. This report is undated, but assumed to be 1999, and presumably an unpublished report, identified as Document ID Study 244 in TDD Chapter 11, Appendix A. Both the 1999 and 2000 reports contain the same tables of IM data collected from the Somerset station.

EPA disagrees with comments that assert that laboratory and modeled data can be used to determine the relative strength of species, informing decisions about the likely survival achievable in the field, especially when data for certain species are limited or unavailable. EPA continues to be concerned that laboratory and modeled data ma y not represent the real world results of BTA. For example, EP A has identified that low rates of fish catch may inadvertently increase fish mortality, poor fish condition prior to their use in co llection results in poor survival, and some studies used techniques such as a “c rowder” or other means employed for purposes of forcing fish to impinge or be collected; these data are not representative of actual technology performance. Regardless of the availability of da ta for particular species, the comments have not provided convincing evidence that laboratory and model data w ould appropriately mimic the performance of the model technologies under normal conditions.

EPA agrees that data from a wider range of holdi ng times are appropriate for inclusion in the IM database used for the IM performance standard in the final rule. EPA reevaluated both the old and new data using an expanded holding time criteria range of 18 hours to 96 hours which increased the number of facilities present in th e final database. Several studies demonstrated

Essay 16A 135impingement duration and holding times were not critical factors affecting survival for many species. The majority of the data used was fr om studies with holding times of 48 to 96 hours, with only four studies having holdi ng times of 18 to 24 hours. In studies that assessed survival at multiple intervals, EPA used only the data from the longest period within the 18 to 96 hour timeframe. EPA excluded data for periods shorter th an 18 hours since some le thal injuries due to impingement will not be immediately apparent . None of the data and comments provided indicates this is no longer the case. However, in light of the other comments and data, EPA agrees that holding times are no longer a critical factor, at least not for the species identified in the data. For these reasons, for the final regula tion EPA has revised the criteria by expanding the range of mortality monitoring holding times from 24 to 48 hours to 18 to 96 hours, and has further specified that the Director may establish alternative holding periods. In the absence of data upon which the Director may determine th e appropriate holding ti me, EPA’s analysis suggests a minimum of 48 hours is most appropri ate to ensure that th e facility observes the majority of initial and latent mortality a ssociated with impingement. See DCN 10-6709 for additional discussion. See also TDD Chapter 11 and Section V of the preamble for additional information.

EPA disagrees that comments asserting that th e proposal documentation was deficient or that EPA fabricated data for calculating the performa nce standard. All studies and data are in the public docket. Proposed Chapter 11 describes EP A’s thorough, consistent, and unbiased review of the data and all supporti ng documentation accompanying the data. The final TDD Chapter 11 documents EPA’s additional and thorough review of its data for the final rule. EPA performed the reviews to ensure that the selected data repr esent IM and that the data reflect the performance of the model technologies. The EPA used as much data as possible, only rejecting data that do not meet the acceptance criteria. By identifying th ese criteria, the study documents, and the data, EPA considers its data selecti ons to be easily reproduced by us ing information in the public docket. While the EPA did not identify all crite rion by number for each and every study, both the proposed and final TDD Appendix 11-A provide one or more reas ons for data exclusions for each study. As discussed above, those studies that did not meet EPA’s acceptance criteria can still be used to demonstr ate the 12-month performance standard is achievable.

Statistical Methodology Appendix D to Chapter 11 of the proposal TDD provi des details on the EPA’s choice of the beta family of distributions, and s ection 11D.2 discussed alternatives to the beta distribution (including the normal distribution model, nonpara metric approaches, and survival analysis approaches) for modeling percent IM. The documen tation demonstrate that the EPA considered alternatives and, upon doing a statistical assessment of each, determined that the beta family of distributions was the best approach to take given the objectives addressed in the proposal. Despite earlier evaluation of the statistical me thods, the EPA re-evaluated possible alternatives. This section of the essay descri bes the comments and the EPA’s response regarding reevaluation of its statistical methodology.

Comment Summary EPA based the value of the proposed annual average standard and final 12-month IM performance standard upon the expected value of the beta distribution determined from the IM

Essay 16A 136percentage data from facilities with BTA tec hnology. The median of th e facility averages provides the same value as the expected value from the beta distribut ion. Many comments argue that the application of a beta di stribution was not appropriate for the data set used by EPA. They claim that EPA provides no basis for selecti ng and fitting the beta distribution and the distribution over-aggregates the data so that the actual variati on is neglected. Comments also argue that the “fit” of the data to the beta dist ribution provides very li ttle assurance that the distribution is predictive of conditions outside of the data set. Commen ts also question EPA’s use of method of moments (“MOM”) estimation, b ecause of what commenters consider a small sample size. Comments assert that EPA still sh ould have incorporated a standard deviation, confidence interval, or variability factor not only in monthly averages, bu t in the annual average standard.

EPA did not consider comments rela ted to the statistical basis of the monthly average standard because they are not relevant for the final ru le. For example, EPA did not consider comments about the perceived lack of EPA analysis to back up the assumption that the monthly IM observations would be distribu ted about the expected average as suggested by the beta distribution.

EPA’s Reevaluation of the Statistical Methodology and Response to Statistical
Comments In developing the final IM performance standard, in light of the comments that it had received, EPA again considered several parametric methods and the nonparametric approach to model the data used as a basis of the pr oposed annual average standard. Beca use of their concerns about the capability of facilities to meet the proposed standard, comments suggest that EPA reject the beta distribution and use methods that would incor porate additional variability in the standard development. For the reasons explained below, EP A disagrees that the re commended alternatives are appropriate and has confirmed its choice of th e beta family of distributions as a reasonable choice to use as the basis for the IM pe rformance standard in the final rule.

For the first alternative method, comments suggest that EPA devel op a performance standard that would allow for exceedances. EPA disagrees that su ch an approach is appropriate for several reasons. First, the IM performance standard applies to the average observed during a 12-month period, and not to individual monitoring events during that period. By actively evaluating ongoing performance during the 12-month period, a facility can optimize the equipment to improve performance to counterbalance a result above the standard by one below the standard. Second, allowing periodic exceedances would be a disincentive for ongoing maintenance and operations of the BTA. Third, the approach co uld have a seasonal effect on percent IM. For example, if a facility clai med its allowable exceedance dur ing spawning season, a poor IM percent could result in large numbers of young organisms dying than during non-spawning seasons. Courts have agreed with EPA’s rationa le in similar situations. For example, the 2 nd Circuit Court ruled that denying excursion provisi ons justifiably compels the industry to develop the technological capability necessary to avoid excessive discharges. Accord, United Steel Corp. v. Train, supra, 556 F.2d at 842.

For the second alternative method, comments recommend that EPA consider a statistical tolerance lim it. In referring to a 95 percent analysis around a mean or average value of the data,

Essay 16A 137comments are referring to a tolerance limit, or confidence limit, which is not a point estimator but rather an interval estimator having the property of being larger than the desired quantity with a stated degree of statistical confidence. Comme nts incorrectly assert that EPA had developed the proposed monthly average standard using such an approach. As expl ained in the proposal TDD, the EPA calculated the 95 th percentile of the distribution of monthl y averages. Interval tolerance limits also are based on accepted stat istical methods; however, they are designed for special applications in which it is critically important to obtain an upper bound on a quantity and in which the cost of substantially overestimating that quantity is small. EPA has determined that basing the final IM performance standard on a to lerance limit would be inappropriate and would allow mortality rates that would greatly exceed the consistently observed performance of the model technologies. While EPA considers faciliti es that properly operate and control the model technologies capable of complying with the IM performance standard, as discussed above EPA’s final rule approach requires optimized opera tion, and a tolerance lim it is not necessary.

For the third alternative method, comments assert that EPA is re quired to apply a variability factor in developing the standa rd. In developing limitations for effluent guidelines, EPA approximates the percentile basis of daily and m onthly limitations using long-term averages and variability factors based upon pollutant concentr ation data. For the final rule here, EPA is establishing an IM performance standard usi ng a different methodology to better model percent IM data. In addition, the variab ility factor would provide an upward adjustment to the IM performance standard that EPA does not consider necessary for a value that facilities need only comply with on an annual basis.

After considering and rejecting the three alterna tives, EPA reevaluated and reaffirmed use of the beta distribution as still appr opriate in developing the final IM performance standard. An advantage of the beta family of distributions is that it provides parametric methods for statistically evaluating the distri bution of data. Parametric met hods require that a probability distribution be specified and th is allows estimation of unknown pa rameter(s) from the available data using maximum likelihood or an alternat ive estimation methodology. Parametric methods apply a series of mathematical equations to the data to obtain estimated parameters. In this manner, the estimated parameters are a function of the defined distribution and the data. In contrast, nonparametric statistica l procedures rely on no or few assumptions about the shape or parameters of the underlying distribution. EPA pref ers the parametric approach because it uses all of the available data to estimate the distributional parameters, which in turn, are used to estimate the value of the IM performance standard.

A second advantage is that the beta family provi des EPA with reasonable flexibility in modeling the data. The beta family of distributions provid es considerable flexibility in modeling the IM percentages because it is not a single distribut ion (as commenters were implying), but instead, represents many distributions that can take on a variety of shapes. Appendix D.1 in Chapter 11 of the proposal TDD shows several of the possible shap es within the beta family of distributions. Unlike the distributions such as the normal di stribution, the beta family is not limited to symmetric, bell-shaped, and unimodal forms. Because it uses all available data to model the distribution, each beta distributi on allows for the maximum use of the available data from a facility. When applying the beta di stribution to a set of data, there is no need to verify that the data are distributed about the average of the di stribution because each fitted beta distribution is not constrained to one particular shape (unlike the normal distribution) as it originates from a

Essay 16A 138broad family of distributions. Therefore, the fitted distribution will closely match the shape observed in the data. Thus, for this reason and b ecause it used all available data that met its criteria for performance data associated with BTA, EPA disagrees with comm ents that assert that the “fit” of the data to the beta distribution provides little as surance that the distribution is predictive of conditions out side of the data set.

A third advantage is that the beta family constrains the data in the same manner as the observed data. The beta distributions are continuous in nature, which also holds for the percentages of IM. IM percentages can be expressed as proportions that can take on any value between 0 and 1, which is the range covered by the beta family of distributions. In c ontrast, the lognormal distribution, suggested by comments as a more a ppropriate distribution, do es not have a finite upper bound that is inherent with IM percentages (i.e., 100 percent is the upper bound).

A fourth advantage is that the specific form of the beta distribution, cont rary to assertions in comments, accounts for the variability in each modele d facility data set. Th e specific form of the beta distribution was determined by the observed data (when expressed as proportions of IM). The method of moments (MOM) fit ting of the beta distribution to the data utilizes both the observed average and the observed st andard deviation (which is calc ulated as the square root of the variance) of the facility’s data points in de termining the parameters of the beta distribution. Thus, the actual variation in the data is accounted for in determini ng the specific form of the beta distribution for each facility data set.

EPA also considered the issue of sample size in applying the beta distri bution. Comments assert that economic literature frequen tly discusses the inapplicability of the MOM estimation approach for small sample sizes and emphasizes that small samples result in biased estimators and inaccurate confidence intervals. EPA is familiar w ith the economic literature and disagrees with the conclusions that the comments attribute to the literature. Bias and lack of accuracy are not introduced to estimators exclus ively by small sample sizes; rather, small sample size is associated with higher uncertain ty (i.e., theoretically lower precision) in estimation. Thus, while small sample size is associated with larger standard errors in most traditional estimation techniques, the sample size and the MOM estimati on approach do not inherently lead to biased or inaccurate estimates. In any case, EPA has incr eased the number of data points in the standard database and has used all of the relevant data av ailable to it in developing the final standard. For additional explanation about EPA’s efforts to ma ximize the sample size, see the section “EPA’s reevaluation of data and res ponse to data selection comment s.” EPA also notes that the comments expressed concern about the size of the database, but did not e xplicitly identify the number of data points that they would find to be acceptable for EPA’s calculations.

The MOM estimation approach is on e of several ways to estimate the two parameters of the beta distribution from observed data. Th e advantage of MOM is that it is straightforward to calculate from closed-form equations. A disadvantage is th at the MOM can yield estimates that are outside the range of possible parameter values, though th is did not occur in de veloping the final IM performance standard (i.e., the estimates of both pa rameters of the beta di stribution were greater than zero). After consideri ng these advantages and disadva ntages of the MOM, Maximum Likelihood Estimation (MLE), and Bayesian estimation procedures, EPA concluded, contrary to assertions in comments, that the MOM was the best approach because it provided consistent estimates from closed-form equations that can be used by others to readily and transparently

Essay 16A 139reproduce the value of the sta ndard. EPA rejected the MLE a nd Bayesian approaches as explained in the following paragraphs.

For the MLE approach, EPA considered its us e instead of the MOM because its parameter estimates are always within the range of possi ble parameter values. A disadvantage of MLE is that no closed-form equations for the beta distribu tion exist, and therefore, iterative algorithms would need to be used. As a result, these al gorithms may not always converge to a global maximum, and persons using different implementa tions of the MLE algorit hms might arrive at different estimates. For this reason, EPA rej ected the MLE approach because different applications might not result in the sa me, consistent, value for the standard.

For the Bayesian estimation approach, EPA was concerned about its requirement for either a subjective choice of a prior distribution or the use of a non-informative uniform prior; in the latter case, the result would be the same as th e MLE that EPA previously rejected (as explained in the previous paragraph). EPA rejected a subj ective choice of a prior distribution because it requires a judgment call in select ing a distribution. Theref ore, while EPA agrees this approach is a possible alternative, this approach did not represent the best approach available here.

In addition to evaluating the statistical me thodology, EPA evaluated whether the statistical methodology over-aggregates the data, as comments asserted. To ensure that it was basing the final IM performance standard upon appropriate data, EPA aggregated the data within each facility into mutually exclusive periods of appr oximately 12 months or less, as explained in the TDD. To ensure that any one facility did not have undue influence on the IM performance standard, EPA then aggregated across multiple periods. In this manner, EPA based the IM performance standard upon the facility annual aver ages by using appropriate aggregation of data collected during individual monitoring events. EPA concluded that its aggr egation approach used for the proposal was appropriate and has used the same approach in developing the final IM performance standard.

After confirming its earlier choice of the beta distribution for the IM data, EPA applied the proposed methodology to develop the IM performan ce standard using all of the available and relevant data from the facilities using the model technologies. The next section addresses concerns with achievability and complia nce with the IM performance standard.

Achievability and Compliance Issues As explained in the previous section, EPA consid ers the beta distribution to be appropriate for modeling the percent IM data, in part because it in corporates the variability in the data, and has used the method of moments (“MOM”) to estimate the parameters of the beta distribution. The regulation establishes the IM perf ormance standard as a maximum va lue that facili ties are not to exceed, on average, in any 12-month period. This se ction of the essay addr esses concerns about achievability and compliance of the IM performa nce standard. In this section, EPA responds to comments recommending further flexibility in complying with the rule; achievability by facilities used as the basis of the IM performan ce standard, all facilities , and facilities with low numbers of impinged fish; and optimization of the technology selected for BTA.

Comments suggest that EPA deve lop alternative compliance strate gies for the situation when achieving the IM performance standard would not be feasible. For example, one comment

Essay 16A 140suggests that the state permitting authority should ha ve the flexibility to se t mortality rates that may be variable from month-to-month, or to include only an annual average. As another example, another comment points to EPA’s cons ideration of WET limits during its rulemaking. EPA notes the commenter incorrectly interprets EPA’s regulation as being a trigger for further sampling and evaluation, not as a pass/fail standar d, because of inherent variability in attempting to sample and measure natural systems. Alt hough the comment is incorrect about WET limits being triggers because they are enforceable standards, EPA considered the comment’s concept of using triggers to require additional monitori ng of ongoing performance. First, for the reasons explained above, EPA disagrees th at the IM performance standard is not feasible. Second, the final rule includes seven compliance alternatives for the IM standard, only one of which requires biological compliance monitoring to demonstrate th e IM performance standard is met. See Essay 16. For those facilities that elect to comply with one of the pr e-approved or streamlined IM compliance alternatives, EPA agrees that it is not necessary to require biological compliance monitoring. See Essay 16. Further, because EP A’s final rule does not require biological compliance monitoring in perpetu ity for 6 of the 7 compliance alternatives, EPA’s approach offers the benefit of “streamlined” comp liance; see final rule at 40 CFR 125.94(c).

Comments claim that EPA’s approach produ ced a proposed annual average perform ance standard that could not be met even by those f acilities on which the standard was based. Many comments argue that 50 percent of the BTA f acilities cannot meet the proposed annual average standard because EPA based its value on the average performance of all BTA facilities. EPA disagrees that it has promulgated an IM pe rformance standard that BTA technology cannot achieve on a regular and ongoing basi s. The IM performance standard is not designed to validate current practices but rather to control intake st ructures within prescribed limits. EPA applied statistical methods to develop the IM performance standard using all of the available and relevant data from the facilities using the model technologies. EPA notes that not all studies included in the database were using technology optimized fo r the purposes of mee ting the IM performance standard; such facilities, upon optimizing their technology performance, are expected to exceed the level of performance identified in the studies. As discussed above, because the IM performance standard is based upon data co llected from facilities applying the model technologies, it already incorporates all sources of variability within th e data. For facilities choosing to comply by alternatives § 125.94(c )(1) through (4), the technology performance exceeds that of the IM performa nce standard and the comments are irrelevant. For facilities choosing to comply by alternative § 125.94(c)(5) using EPA’s model BTA technology (modified traveling water screens with fi sh handling and return), the fi nal rule requires a 2-year optimization study to be used to establish permit conditions that are indicative of the site-specific optimized operation of the technology. Such fac ilities will not use biological monitoring to demonstrate ongoing compliance. Similarl y, under § 125.94(c)(6), the 2-year study demonstrating a system of flow reductions, re duced rates of impingement, and other practices will be used to establish permit conditions that are indicative of the site-specific optimized operation of the technology. Again, such facili ties will not use biological monitoring to demonstrate ongoing compliance. See preamble for more details.

EPA expects that few facilities, estimated at less than 1 percent of all facilities, primarily those with new and innovative control technologies not already addressed by the IM compliance alternatives in § 125.94(c )(1)-(6) will comply with the st andard via § 125.94(c)(7) and conduct biological compliance monitoring. Because EPA e xpects this compliance alternative may be

Essay 16A 141chosen by facilities are not using the IM BTA, these facilities must achieve an average performance level that faciliti es with well-designed and operate d model technologies (i.e., the top 50 percent) have de monstrated can be done.

There are numerous studies in the record that were not included in the database because they did not meet all acceptance criteria. These studies, while not meeting all of EPA’s criteria, show the technologies are widely availabl e, demonstrated, and capable of achieving the IM performance standard. For example, a study may have include d some instead of all the fish protection features, or may not have included 12 months of data – and yet the performance in these cases is consistent with that required in the final rule. EPA notes these additional studies do not suggest that a more stringent performance standard is wa rranted and that EPA should therefore revise its acceptance criteria, rather these studies s how EPA’s model technology is demonstrated, available, and performs in a consistently high manner.

Comments question how facilities would demons trate compliance with the monthly and annual average performance standards. As described above, the monthly standard is not included in the final rule so no response is requ ired. The facility would calcula te the 12 month average by using the arithmetic average of its percent IM observe d in monitoring events each month in the proceeding 12-month period. See the pr eamble for additional information.

Comments express two concerns regarding comp liance with the annual average standards when the facility has low rates of impingement. One concern is that the pr oposed standard did not account for technologies and operational measur es that may have contributed to low impingement. Another concern is that those facilities with low impingement would have difficulty complying with the IM performance sta ndard if the number of impinged fish are so low that the mortality percentage could vary widely just with the fate of relatively few fish. Comments add that the expression of the IM perf ormance standard as a percentage of impinged organisms is highly problematic, as it would require mitigation even when absolute counts of killed fish are very low. Other comments st ate that EPA did not propose a methodology that could accommodate widely varying sample sizes (e.g., 10 versus 1000) when calculating annual and monthly survival performance. EPA agrees that the proposed standard did not accommodate facilities that observe few fish impingements because the only situation where that occurs is when the facility has adopted ot her measures to actively avoid or reduce fish impingements. EPA solicited comments on this aspect of the propos al, and issued a NODA that included possible approaches to this concern (77 FR 34322). In the case of the commenter data with just a few fish impinged, EPA notes the facility has low rates of impingement due to the off-shore velocity cap. Thus the facility could demonstrate complia nce under section § 125.94(c)(6) without other controls. In the NODA (77 FR 34322) and the final TDD Chapter 11, EPA describes the calculations to incorporate cred it for existing or newly installe d technologies. In addition, the final rule allows the Director, based on review of site-specific data a nd where no threatened or endangered species may be present, to conclude that, where few fi sh are likely to be impinged, a de minimis rate of impingement exists and therefore no additional controls are warranted to meet the BTA IM standard.

Some comments argue that EPA based the proposed standards on a flawed assumption that a single technology (i.e., traveling sc reens with fish return capability or the equivalent) is capable of reliably achieving the same level of protect ion regardless of the lo cation, relative abundance

Essay 16A 142of individual fish species within and between years, or differen ces in the aquatic environment. Comments state that a facil ity could expend a considerable amount of money installing technology without any assurances that the prescribed technology could meet the IM performance standard. Comments also claim that operators would not be able to innovate and optimize the operation and configura tion of their traveling water sc reens to achieve reduced rates of IM because facilities can modi fy and optimize very little on a modified traveling water screen. They note that nowhere in the record does EPA poi nt to evidence to support its assertions about optimization. EPA disagrees with these co mments. As discussed above, the BTA model technology is demonstrated, available, and achieves a consistent level of performance. Site visits in EPA’s record show facilities can and do strive to optimize th eir modified traveling screen performance. Other comments from actual facili ties provide data show ing that the model BTA technology can in fact be optimized. These comm enters suggest possible operating parameters subject to modification would include: 1) rotati on speed; 2) rotation frequency (e.g., intermittent vs. continuous); 3) spray wash pressure; and 4) spray wash angle. Other comments question EPA’s assumptions in the proposal that these pa rameters could be adjusted to maximize fish survival. Studies in the record support EPA’s cl aim that optimized values exist for the operating parameters, including a number of lab studies that successfully focus on one operating parameter at a time. EPA disagrees that it is impossible to optimize performance to meet the IM performance standard in the final rule. The fina l preamble, and the final record, cites several examples including site visits and examples provided by industry in comments (e.g., Energy Information Administration). Optimization require s study and modifications which are inherently part of proper operations and maintenance, whic h EPA has included in its costs of the rule. The final rule establishes seven alternative methods for complying with the IM BTA standard. One of these methods involves employment of a modified traveling screen that meets certain design characteristics and has been demonstrated to be operated in an optimized manner through biological monitoring during a 2 year optimizatio n study. As discussed above, EPA expects that once the technology operation is optimized, its pe rformance would exceed the IM performance standard, and the EPA has therefore stream lined compliance by eliminating biological monitoring after the opti mization study. See the preamble for additional details and the record for the literature studies that describe technology optimization.

Public Review EPA disagrees with comments that assert that further public review and comment was necessary for the revised performance standards. The proposal documentation clearly describes the methodology EPA used to derive the proposed annual average performance standard. EPA clearly provided notification of EPA’s considera tion of revising the standards based on new data in the NODA at 77 FR 34317 Col. 3. The data and me thodology used is available in the record allowing the public to independently calculate and verify the final IM performance standard. Nothing prohibits the Agency from adding supporting documentation for a final rule in response to public comments. In fact, adhe rence to the commenter’s view might result in the EPA’s never being able to issue a final rule capable of standing up to review: every time the Agency responded to public comments, such as those in this rulemaking, it would trigger a new comment period. Thus, either the comment period would con tinue in a never-ending circle, or, if the EPA chose not to respond to the last set of public co mments, any final rule could be struck down for lack of support in the record. Cf. BASF Wy andotte Corp. v. Costle, 598 F.2d 637, 644-45 (1st Cir. 1979) (noting that it is “perfectly predictabl e” that an administrative agency will collect new

Essay 16A 143data during the comment period “in a continuing e ffort to give the regulations a more accurate foundation” and stating that “the agency should be encouraged to use such information in its final calculations without thereby risking the requirement of a new comment period”), cert. denied, 444 U.S. 1096, 62 L. Ed. 2d 784, 100 S. Ct. 1063 (1980), later proceeding, 614 F.2d 21 (1st Cir. 1980) (dismissing petiti ons for review). Also see Cf. Ch emical Mfrs. Ass’n v. EPA, 870 F.2d 177, 200-02 (rejecting argument that agency was required to reopen notice-and-comment period before relying on economic data updated and expanded after the close of a comment period), clarified, 885 F.2d 253, later proceedi ng, 885 F.2d 1276 (5th Cir. 1989) (concerning attorneys’ fees).

Essay 16A 144

### Essay 17: Intake Velocity

Introduction Many commenters expressed concern that operation of a cooling wate r intake structure that does not exceed the prescribed through screen design ve locity may be difficult to achieve at many facilities or that the costs to comply would be high. Commenters also considered the 0.5 ft/s design velocity to be over conservative, especially when applied as a through-screen velocity and also questioned the underlying ration ale for selection of this valu e. Many had concerns regarding implementation.

EPA agrees that 0.5 ft/s design velocity is no t available for some facilities and that the compliance costs may be higher where the design velocity is difficult to achieve. EPA disagrees that a requirement for a 0.5 feet per second de sign velocity is inappropriate or improperly calculated as an alternative to comply with the impingement mortality performance standard. The record for today’s rule, as well as previ ous proposals and 316(b) ru les, supports such an alternative requirement. Additiona lly, for the reasons explained in the preamble, EPA did not establish an impingement mortality requirement based on low velocity. It is one of seven alternatives available for complying with the BT A impingement mortality standard in the final rule. Consequently, compliance with a design velocity restriction is not required at all facilities.

With the exception of issues and clarifications discussed below, EPA ha s addressed previously most of the issues raised with regards to intake velocity by comments on the proposal and NODA. EPA first prescribed a design velocity requirement as a compliance alternative in the Phase I Rule and it continued this approach in the Phase II, Phase III, and today’s existing facility rule. Under the Track I approach of the Phase I rule, a new facility had the choice of complying with velocity and capacity requiremen ts. Many of the issues raised in the proposal and NODA public comments for the existing facility rule concerning the sta ndard and its validity have been raised in previous comments. Many commenters have expresse d concerns regarding technology availability and impl ementation particularly with respect to the method of determination and intake location where it is applied.

Background EPA first adopted a 0.5 ft/s design velocity as a maximum through-screen velocity requirement in the Phase I Rule. The design ve locity was also adopted under Ph ase II as an option to comply with impingement mortality requirements. Under Ph ase III, a design velocity similar to that in Phase I was adopted for new offshore oil and gas extraction facilities.

Previous Comments on Intake Velocity

Phase I A summ ary of significant commen ts and EPA’s response regarding the velocity standard in Phase I final rule m ay be found at section VI.E of the Phase I preamble. See 66 FR 65301/2 to

Essay 17 14565304/1. Many of the issues currently being rais ed by commenters on the existing facility rule were also submitted under Phase I.

Commenters have provided no basis for EPA to change its earlier conclusi ons that the 0.5 ft/s requirement is scientifically based, technica lly sound, protective of aquatic resources, and technically available and economically practicab le as demonstrated by the fact that it is frequently employed at recently built facilities.

Phase II and Phase III The absence of a discussion of intake velocity in the major comments section of the pream ble for the final Phase II and Phase III rules indicate s that commenters did not raise any new or significant issues with respect to this approach for those rules. See 69 FR 41610 (July 9, 2004) and 71 FR 35018 (June 16, 2006) for a summary of the major comments on each of these rules.

Previous Litigation on Intake Velocity

Phase I In the Riverkeeper I Decision (decided Februa ry 3, 2004), the court summarizes the Utility Water Act Group (UWAG) argum ents that there is insufficient support in th e record for Track I’s through-screen velocity limit of 0.5 ft /s and that the relevant velocity should be the approach velocity and not the through-scre en velocity. The court notes EP A’s position that through-screen velocity is easier to measure, that many recen tly constructed facilities are designed to meet through-screen velocity limits, and that it pr ovides a margin of safety. The Second Circuit concluded that EPA’s choice of velocity limit was reasonable. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 198-99 (2 nd Cir. 2004).

EPA’s Response Nothing in the comments on today’s rule provid ed any basis for EPA to revise its earlier conclusions about the appropriate ness of a specified design velo city in achieving reductions in impingement mortality and its suitability for incl usion as one alternative for meeting the BTA impingement mortality standard.

Comments on the existing facility rule pertaining to intake velocity tended to be focused on three main aspects: the availability or feasibility of the 0.5 fps veloc ity, the derivation of the 0.5 fps, and how the 0.5 fps would be implemented. The sections below address these comments.

Availability/Feasibility Riverkeeper supported the inclusion of a velocity standard with a carefully crafted variance for those who cannot meet it and argues that EPA’s re jection of the 0.5 ft/s ve locity as the primary national standard is illegal. They state that “EPA lack s a legitimate legal or evidentiary basis for rejecting the 0.5 ft/s velocity lim it” questioning EPA’s assertion th at it is not “available” stating that “analysis or evidence in the record to support a conclusion thatreduced intake velocity is not capable of being implemented at all locations ap pears to be lacking.” EPA agrees that, where available, an intake velocity less than 0.5 ft/s is an effective IM reduction technology. EPA,

Essay 17 146however, disagrees that achievement of this low inta ke velocity is broadly available. In fact, as noted by Riverkeeper, only 18 percent of existing intakes could meet the 0.5 fps velocity with existing technology. In order for an existing intake with a higher velocity to comply, they would need to either reduce flow or increase the sc reen surface area. Because many intakes have high screen velocities to begin with, the degree to wh ich either the flow woul d be reduced or screen area increased could be considerable. 14 These conditions may severe ly constrain or prevent particular locations from achieving the necessary ve locity reductions required to meet a 0.5 ft/s velocity performance standard. Thus, EPA conc luded that there would be a large number of intakes that may encounter difficulty complying with a low velocity performance standard. For these and other reasons, EPA rejected a 0.5 feet per second through-screen design velocity as the national BTA performance standard for impingeme nt mortality. (See the discussion in Essay 15 and Essay 16.) Rather, EPA included it as one of seven compliance alternatives for the BTA IM performance standard reflecting the performan ce of traveling screens with fish returns.

More specifically, while EPA has identified a number of compliance t echnologies capable of achieving 0.5 fps, each has potential drawbacks. Wa ys to reconfigure or adapt existing intake structures to achieve a low velo city requirement where intake sc reen velocity is high include increasing the size of intakes, relocating and subm erging the intake to an offshore location with wedgewire screens, variable speed pumps, 15 and partial closed-cycle cooling. Larger intakes, wedgewire screens, and closed -cycle cooling are some of the most costly technologies considered by EPA and each may have restrict ed application in cert ain circumstances. The availability of wedgewire scre ens is limited by waterbody consid erations such as water depth, sweeping velocity, and navigation in terferences and, as such, applic ations tend to be limited to smaller intakes and the largest wa terbodies. The availability of la rger intakes is often limited by existing shoreline interferences (for example, where the shoreline is not owned by the intake facility; see Potomac Generating site visit report (D CN 10-6512) showing the shoreline property is part of a national park). Furthermore, incr easing the intake size (three times for an average intake and five times or more for an older intake ) may not be feasible due to a lack of available space at the intake structure. According to EPA’s record of acres owned, a facility with a shoreline intake that had to increase the existing in take structure by a factor of five or more will rarely have enough shoreline to be able to do so. For examples, see site visit reports for: East River (DCN 10-6506); Scattergood (DCN 10-65 45); Haynes (DCN 10-6547); Crawford (DCN 10-6544); Eddystone (DCN 10-6507); Sunoco (Phila delphia) (DCN 10-6542); and Potomac. In waterbodies that regularly contai n high quantities of silt and sand, such as the Ohio and Missouri rivers, reducing the intake velocity creates probl ems regarding the deposition of sediment in the vicinity of the screens and in the channels/canal s leading up to the screens. For example, see the site visit report for Nebraska City Station (DCN 10-6520). Silt and sand often require a certain sweeping velocity to prevent deposition as sedime nt. For example, a minimum of 2.5 to 3 ft/s is recommended to prevent depositi on of sediment and sand in inta ke pipes for submerged offshore intakes (see Phase II TDD section 1.1.1). Such se dimentation may make it extremely difficult to maintain a low velocity in the vicinity and ups tream of the screens effectively defeating the

14 The average screen velocity for Phase II facilities was 1.5 ft/s and older screens were typically designed with a velocity of 2.5 ft/s. An intake with a velocity of 1.5 ft/s and 2.5 ft/s screen would need to reduce flow by 67 percent and 80 percent or increase the screen area by a factor of three to five times.
15 Variable speed pumps are only considered as viable for meeting a 0.5 fps velocity requirement for those intakes with a velocity already close to that value.

Essay 17 147purpose of any low velocity re quirement. Technology limitations are discussed further in TDD Chapter 6. EPA estimated that a total of only 34 per cent of intake structures could comply with a velocity standard, including thos e that are already compliant. T hus, as noted, EPA has concluded that it should not establish low velocity as the national BTA for IM nor should it prescribe a nationally applicable low velocity IM performa nce standard. The identified constraints that restrict its application in numerous settings mean that lo w screen design velocity is not a nationally available technology.

Riverkeeper also cites EPA’s rationale for including the velocity standard in Phase I as a rationale for including it as a primary national standard and points out that EPA’s supporting documentation for current rulemaking has stated that the velocity standard will reduce IM by 96 percent, which is better than th e selected technology (traveling scr eens). New facilities subject to Phase I are required to have intakes commensur ate with closed-cycle cooling. According to EPA’s record, such intakes withdraw an averag e of 96 percent less volume of cooling water. Facilities with closed-cycle cooling (or retrof itting to closed-cycle) can design a new intake structure with a significantly sma ller size than for once-through and still be able to meet the additional intake velocity requirement. The EPA ag rees that a design veloc ity standard of 0.5ft/s is generally more effective at reducing impi ngement (and impingement mortality) than the selected basis for today’s IM standard. For this reason, the intake velocity is available as an alternative for meeting the BTA performance standa rd. However, as discussed above, the ability to retrofit an existing facility to meet such a ve locity standard is not av ailable at 66 percent of existing facilities. Also s ee the preamble and Essay 16A.

Riverkeeper recommended that when applying a velocity standard, EPA should retain the additional fish return, fish entrapment, and she llfish barrier net requirements identified in the proposed rule. EPA agrees that 0.5 fps velocity is an effective IM redu ction technology and has included it as one of several compliance options for meeting the BTA IM standard. For the reasons discussed in the preamble, EPA disagrees that the inclusi on of other measures in addition to the 0.5 fps should also be a re quirement of the low velocity IM compliance alternative. The record demonstrates that the 0.5 fps velocity alone, as well as th e other IM compliance alternatives, will provide impingement reduc tions that achieve the required IM BTA performance standard.

Other commenters expressed conc ern that 0.5 ft/s velocity standard was unachievable by many facilities, was not available at all facilities, and that there was no effective way to reduce velocity without expanding the size of the in take. Site-specific limitations su ch as gravity fed intakes will have limited options to comply. Commenters also argued that requiring th at the maximum design through-screen intake velocity must be achie ved under all conditions, including during minimum ambient source water surface elevations to includ e low flow conditions wa s too restrictive and cite multiple examples of existing intakes with velocities less than 0.5 ft/s that have been previously determined to employ BTA. As expl ained above, the EPA agrees that many existing intakes may not be able to comply with the 0.5 fp s velocity without expanding the screen surface area by either expanding the intake or replaci ng the screen technology (e.g., using wedgewire screens) and that such options may be difficu lt and/or costly. In th e final rule, EPA has established several alternative impingement mort ality compliance options that facilities may choose as a means of compliance for each intake. EPA did not identify low flow as the basis for

Essay 17 148the IM performance standard a nd facilities are not required to comply with a design 0.5 fps velocity.

One commenter (EEI) also argued that requiri ng an “instantaneous maximum” design throughscreen intake velocity must be achieved under all conditions was incons istent with how it was applied in Phase I and Phase II where velocity was averaged over the sc reen surface and noted that EPA revised the Phase I rule such that the velocity is derived usi ng “[d]esign calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations (based on best prof essional judgment using availabl e hydrological data)....” 40 CFR 125.86(b)(2). EPA disagrees that, when a facility chooses to comply with the IM performance standard with the 0.5 ft/s screen design velocit y, it must achieve an instantaneous maximum. In the final rule, EPA has adopted the same language for defining minimum ambient source water as specified for monitoring velocity via head loss under Phase I at 40 CFR 125.86(b)(2). Also, EPA has provided the option of measuring thr ough-screen velocity based on engineering calculations which allows for averaging the veloc ity over the entire scr een surface. Also, shortterm exceedances of the 0.5 fps velocity may be permissible for brief periods (with approval from the Director) for purposes of maintaini ng the cooling water intake system, such as backwashing the screen face. EPA expects that facilities will employ appropriate design and operational measures to ensure that the maxi mum velocity is not exceeded during minimum ambient source water surface elevations, as can be anticipated through best professional judgment using hydrological data.

Commenters argued that EPA should eliminate scr een blockage requirements. EPA agrees that screen blockage requirements are unnecessary because the compliance alternative that is based on 0.5 fps velocity already include s a safety factor and therefore has removed them from the final rule; see next section for more informa tion. Commenters argued th at process water should be excluded. See Essay 14 for discussion of th e applicability of IM requirements to process
water.

Derivation/Technical Framework Commenters argued that EPA should remove any additional requirements (e.g., Ristroph features, counting fish carryover) if the 0.5 fps velo city is met and that those with closed-cycle cooling should not be required to meet it. EPA agrees that eitherthe 0.5 fps velocity or closedcycle cooling alone will provide impingement mort ality reductions that meet the performance of the BTA impingement mortality standard. EPA has revised the final rule so no additional technology measures are required for IM BTA complia nce if the 0.5 ft/s velocity is met or for intakes that meet the definition of “clos ed-cycle recirculating system” at § 125.92.

Commenters argued that the application of the 0.5 fps as the through-screen velocity was overly protective since it resulte d in a much smaller corresponding a pproach velocity and that the approach velocity is more consis tent with the underlying basis of swim speed. They note that an approach velocity has greater flexibility, less uncer tainty, does not vary with screen porosity or penalize intakes with screens. EPA disagrees that the low velocity IM compliance alternative should be applied as an approach velocity. The or iginal data used to s upport the 0.5 fps velocity was for fish swim speed, not approach or thr ough-screen velocity; esta blishing the velocity threshold has nothing to do with whether EPA select s approach or through-screen, as it has to do

Essay 17 149with setting a protective standard (greater or equal to the BTA IM standard) for a water velocity from which fish can escape. EPA’s position since Phase I has been that the difference between basing a velocity standard on through-screen velo city rather than approach velocity imparts a safety factor. This safety factor helps account fo r spatial differences that occur due to varying hydrodynamic conditions in and around the screen s including varying degrees of debris blockage. This issue was also ra ised during litigation over the Phas e I rule and the U.S. Court of Appeals for the Second Circuit sustained EPA’s position.

Commenters noted that application of the 0.5 fps velocity as a through-screen velocity penalizes screens with fine mesh and may limit the availabi lity of fine mesh as an entrainment technology for intakes that would meet the velocity intake with coarse mesh but not after replacement with fine mesh. EPA acknowledges that the application as a through-screen velocity has the perceived impact of penalizing intakes w ith screens and those with finer mesh, possibly limiting facilities compliance options. EPA has concluded that the most reasonable approach is to apply the standard uniformly and notes that facilities are free to select from multiple compliance alternatives including choosing a combination of technology “fixes” that will meet the BTA impingement mortality standards (see BTA impingement mortality standards alternative at 40 CFR 125.94(c)(6)). This alternative allows facilities to aggregat e partial credit for multiple existing technologies and provides a facility wi th the option to take credit for employing additional technologies or operati onal measures which can be part icularly helpful if only an incremental reduction is needed to meet the IM BTA requirement.

Commenters argued that there is no scientific basis for a low velo city screen requirement, that EPA misinterpreted the data in Phase I, and that the standard has no dire ct relationship to IM. EPA disagrees. As noted, these issues were also raised during development of the Phase I rule. EPA has seen no convincing eviden ce that contradicts its determ ination that reduced screen velocity has a significant effect in redu cing and preventing impingement mortality. As previously noted, on a challenge to the Phase I rule, the Second Circuit determined that the record for that rule suppor ted a through-screen velocity limit of 0.5 feet per second.

Commenters argued that a screen velocity requirement should a llow for consideration of sitespecific data such as susceptibility of species of concern or ocean environments where fewer poor swimmers may exist or demonstration that hi gher velocity is still pr otective. EPA disagrees that site-specific data should be used to modify the low velocity compliance alternative or its application. First, EPA has dropped the species of concern component from the final rule, and related comments are no longer applicable. Seco nd, the low intake velocity IM compliance alternative is protective of all live stages of fish and shellfis h that meet the definition of impingement (i.e., retained by a 3/8-inch sieve) . While EPA agrees that some locations may exhibit fewer poor adult swimmers , EPA disagrees a higher intake velocity is appropriate. The record shows larval stages and early life-stage fi sh are not as strong swimmers as adults. (See, e.g., Boucher and Petrell, 1999, DCN 12-6971.) Some species have not yet fully developed their burst speed potential. In many species, swim speed correlates to body length (EPRI 2001). EPA concludes the 0.5 fps intake velocity is protective of mu ltiple life stages.

Commenters question whether comp lying using the 0.5 fps velocity is only appropriate for new facilities, which would have a chance to address the issue in design. As explained above, EPA agrees that it is not nationally available as a technology basis fo r IM requirements for existing

Essay 17 150facilities. EPA disagrees that th e 0.5 fps velocity is only appropriate for new facilities, and sees no reason why this velocity developed under Phase I should not apply to some existing intakes as well if a facility elects to do so. As explained ear lier, this approach is only one of several IM compliance alternatives available and no existing facility is required to achieve compliance with the BTA impingement mortality standard by meeti ng a design velocity requirement unless it so chooses.

Commenters noted that intake velocity is not defi ned in the same way as in Phase I. EPA agrees that it has modified the definition. These cha nges allow for greater flexibility for existing facilities in complying with the BTA impingement mortality standard through the design velocity approach. For the final rule, EPA has defined th e maximum design through- screen velocity using the same concept as under Phase I and has provided additional flexibility in that the velocity can be measured, it can be calculated based on the de sign intake flow, or it can be calculated based on the actual monitored intake flow. In both cases , the velocity is measured at minimum ambient source water surface elevations. Under Phase I, however, the application of minimum ambient source water elevation is described differently where it is used to derive the “head loss across the intake screens to obtain a correla tion of those values with the de sign intake velocity.” In this final rule, EPA has allowed facilities to choos e a more easily employed calculation method for measuring the intake velocity.

One commenter noted that lower velocities will provide insufficient warni ng to fish. EPA agrees that this may be true for velocity caps whic h are designed fundamentally differently than shoreline intakes for which the velocity compliance alternative is intended. EPA does not require that velocity caps that comply by meeting definition of exiting velocity caps or via the system of technologies compliance alternative meet the velocity compliance al ternative. EPA disagrees that this assertion would apply to screen technology since the scre en itself provides sufficient warning.

Implementation Many commenters explained that it would be difficult to measure through-screen velocity directly for screen technology and agreed w ith the suggestion in the NODA that EPA should allow for calculation of through-screen velocity and that the calculations should be based on actual flow rather than design flow since many fa cilities operate well below the design flow. EPA agrees and has included provisions in the fina l rule for using engine ering calculations to determine the maximum through-screen velocity a nd for using either the maximum design intake velocity or the actual intake flow ra te which requires ongoing monitoring.

Commenters wanted EPA to let the Director se t the monitoring frequenc y or be allowed to calculate the maximum expected velocity once us ing a reasonable worst case. EPA requires daily monitoring for intakes complying via the actual in take flow but notes that this monitoring in instances where the values are calculated should involve monitori ng the flow rate, corresponding water depth, screens in-service, etc. Facilities complying via the maximum velocity based on the design intake flow will need to calculate only once based on the minimum ambient source water surface elevations based on BPJ. EPA concluded that it is reasonable to require those choosing to comply via the actual intake flow to monitor daily because (1) operating and ambient conditions will vary, and (2) automated means of measuring intake flows are readily available. Most

Essay 17 151facilities that completed the detailed technical survey were able to report daily minimum, maximum, and average intake flow volumes.

Commenters wanted EPA to exclude intermittent or rare excursions of the 0.5 fps velocity. Some also suggested EPA should make exceptions for ra re weather events such as drought that may occur for extended periods. EPA has addressed issue of intermittent or rare excursions by allowing the Director to authorize the owner or operator of the facility to exceed the 0.5 fps velocity at an intake for brief periods for the purpose of maintaining the cooling water intake system, such as backwashing the screen face. Also, the minimum ambient source water elevation for the 0.5 fps design velocity in the low velocity IM compliance alternative is to be based on BPJ and it is reasonable to assume that such de terminations will take this into consideration. Regarding exceptions for longer term conditions like droughts, EPA disagrees that specific exceptions need to be included in the regulati on. As with other situat ions that are truly exceptional, the Director can use discretion re garding the appropriate response and an upset provision is a common approach. 16 Additionally, periodic drought conditions may be normal at some facilities. The velocity standard has al ways been intended to be “highly protective requirement” (see 66 FR 65302) including under conditions such as drought, where the biological organisms in the waterbody may be under additional stress from the low water conditions. Facilities where such conditions occu r may need to make technology or operational changes in order to comply or select an alternative method of compliance.

Commenters wanted EPA to calculate the maxi mum velocity based on annual average. EPA has decided to apply the 0.5 fps velocity as a maximu m value. EPA has concluded that in order for the 0.5 fps velocity to be effective it must be ju st that, a maximum velocity. An average over any extended length of time would not represent a maximum value.

Commenters wanted EPA to clarify that if the 0. 5 fps velocity is met that no other IM reduction requirements are necessary. EPA addr essed this issue in the final rule by making it clear that the low velocity compliance alternative is one of several IM BTA compliance options and that a facility only needs to sele ct one option for each intake or the whole facility.

Commenters were concerned that through-screen velocity cannot be physically measured and that through-screen velocity is subject to spatial va riability. Commenters also wanted EPA to provide specific guidance on how to calculate through-screen velocit y. Recognizing that both direct and indirect measurement (e.g., through head loss) can be difficult to implement, EPA has allowed for the maximum through-screen velocity to be measured through engineering calculations which are derived usi ng physical data. EPA is aware that spatial variations of intake velocity can occur and has concluded that the safe ty factor inherent in applying the 0.5 ft/s as a through-screen velocity accounts for this. EPA c oncluded that it is not necessary to provide specific guidance in calculating through-screen velocity since these are standard engineering calculations. EPA allows the calculated velocity to be an average across the surface of the screen area but does not allow averaging across multiple intakes. For more discussion, see Basis for the Final Rule section of the preamble.

16 See 40 FR 122.41(n).

Essay 17 152Commenters wanted EPA to allow the Director flexibility in determin ing how facilities may calculate actual intake velocity based on actual flow where flow cannot be easily measured or where it varies with conditions such as water leve l. EPA agrees that there will be instances where the flow volume cannot be directly measured and th at flow volume may, in some instances, need to be estimated using a reasonably reliable indi rect method. The rule does not specify how flow is to be measured and therefore, it will be left up to the Director to determine the method to be used for flow volume calculation, which may include the installation of flow meters.

Commenters are concerned that it is not always clear where to a pply the 0.5 fps velocity or had specific suggestions regarding where it should be applied. For example, it should be applied at the outward-most point or first poin t of contact like the bar racks or barrier net. If so, then the entire system including all downstream technol ogy should be deemed compliant. EPA agrees that it may not always be clear where the point(s ) of compliance for the 0.5 fps velocity should be, especially if there are struct ures or constrictions upstream of the screens. The issue regarding point of compliance for the 0.5 fps in the low velo city IM compliance alternative is discussed in detail in Essay 14.

Commenters argued that facilities that comply using the 0.5 ft/s velocity for a portion of time should get IM reduction credit. EPA intended fo r the 0.5 fps velocity to be protective and therefore it must be met under all conditions. In th e final rule, facilities may obtain partial credit for certain technologies under th e system of technologies altern ative provided the facility can demonstrate a quantifiable reduction. Fo r further discussion, see the preamble.

Commenters stated that flow requirements fo r emergency service water systems at nuclear facilities should be excluded from the calculati on of actual intake velocity. EPA agrees, as long as the emergency service water is only in opera tion during emergencies an d periodic testing. The final rule specifically excludes emergency and fire suppression capacity and back-up pumps. This exclusion should apply to th e actual intake velocity as we ll. See Essays 14 and 18 for more information.

Commenters argued that EPA shoul d include velocity caps and wedgewire screens as IM BTA compliant technologies. EPA agrees that these tec hnologies can be very effective at reducing IM. EPA notes that wedgewire screens are typically designed with a through-slot velocity of 0.5 ft/s and that water depth above the screen does not a ffect the design velocity. As such, the evidence EPA has reviewed is convincing that most wedge wire screens will comply via the low velocity IM compliance alternative and do not need to be singled out as an IM compliant BTA technology. EPA is aware that low intake velocity is sometimes confused with velocity cap technologies. These concepts are not the same. Fo r further discussion of velocity caps, see 77 FR 34320.

Commenters noted that low intake velocities may make some intakes more susceptible to colonization by zebra mussels or may result in in creased siltation of the intake. EPA agrees that at some intakes, the site-specific conditions may result in a conflict between low intake velocities and certain intake design and operational considerations. Also see Essay 18. Facilities where such considerations may take pr ecedence over low intake velocity are free to choose to comply via one of the several other IM BTA compliance a lternatives that do not require low velocities.

Essay 17 153

### Essay 17A: Closed

‐ Cycle Recirculating Cooling

Introduction In the proposed rule and NODAs, as well as th e Technical Development Document (TDD) for the proposed rule, EPA discussed a wide variety of intake technol ogies and operational measures that can be employed to reduce impingement a nd entrainment. This essay addresses comments from the public related to closed-cycle reci rculating systems (CCRS), including both cooling towers and cooling ponds.

To avoid confusion about the regul atory status of cooling ponds that are waters of the United States, the EPA uses the term impoundment when referring to cooli ng ponds or cooling lakes.

In many cases, commenters advocated impound ments such as cooling ponds should be considered as BTA, while other comments gave reasons for rejecting CCRS including impoundments as the basis for BTA. Many commente rs also expressed c oncern over a number of requirements, definitions, or operational measur es laid out in the proposed rule, principally noting that these requirements were either not feasible or not necessary at most facilities. Other commenters suggested other t echnologies have performance comparable to CCRS. For comments concerning costs of CCRS, see Essays 21 and 55. For comments concerning cooling ponds and waters of the U.S., including comment s on the definition of CCRS in the rule, see Essay 14.

Impoundments Comments included numerous sugg estions regarding requirements for closed-cycle systems. Numerous comments addressed man-made cooling ponds and impoundments, including suggestions for exemptions and less stringent requ irements for such CWIS. EPA notes that these suggestions assume that all cooling ponds comp rise a closed-cycle system. Comments also addressed whether a closed-cycle system can be a water of the United States. Others argued that cooling ponds that were not themselves waters of the United States when they were built should be defined as CCRS. See Essay 14 for more details.

Some commenters indicated that EPA should create reasonable presumptions that provide certainty for facilities that use cooling ponds. Some asserted that a cooling pond that functions as a closed-cycle recirculating system (water use reduced by 96.6 percent) should not be required to do more to reduce I and M since presumably any benefits do not justify the costs. Similarly commenters maintained that no additional controls should be required for facilities with constructed cooling reservoirs th at use/are closed-cycle recirculating system since these are BTA. Commenters also asserted that EPA shoul d exclude regulation of intakes in dedicated cooling ponds or allow for site-specific determination by permitting authority. Some commenters asserted that EPA should eliminate the entr ainment requirements if a cooling pond has a retention time of 7 days or more. Others sugg ested that the regulation of intakes for makeup water should be left to the states that are fam iliar with local water issues. Finally, some asked whether blowdown was intended to address overfilling a pond to re duce TDS and, if not, suggested that EPA modify the definition to include such an operational control.

Essay 17A 154A cooling pond is a man-made impoundment used either in lieu of a cooling tower or as a supplement to a cooling tower to remove waste heat from the plant. Once the water has cooled in the pond, it is reused by the plant. Some plants use cooling ponds to reduce the temperature of the cooling water exiting the facil ity before it is discharged b ack into a receiving waterbody. The pond dissipates waste heat through the surface of the pond, resulting in evaporative losses. Therefore, a cooling pond requires additional makeup water from another source to replace the water lost through evaporation. EPA’s record sh ows the makeup water is frequently obtained from a water of the U.S. (EPA’s technical survey data shows 46 power plants and 34 manufacturers withdraw from a water of the U.S. as makeup water fo r a pond.) Cooling ponds may require a significant amount of land in order to provide a sufficient surface area for heat dissipation, and thus may not be feasible for other reasons. However, a cooling pond has the advantage of transferring a larger percentage of waste heat to the atmosphere via convection or slower evaporation due to lower differential te mperatures, potentially reducing the rate of evaporation and thus the rate of consumptive water loss relative to cooling towers.

Traditionally, a cooling lake is very similar to a cooling pond, except that the cooling lake is formed by impounding a water of the U.S. such as damning of a river. The EPA finds that many comments interchange the terms cooling pond and c ooling lake, and for purposes of this essay EPA is not distinguishing between the two.

The EPA is not determining which ponds are waters of the U.S. in this rule. See Essay 14 for more details. The definition of CCRS in the fina l rule includes impoundments that are not waters of the United States at 40 CFR 125.92(c)(1). The c losed-cycle recirculating system definition at 40 CFR 125.92(c)(2) includes a system with impo undments of waters of the U.S. where the impoundment was constructed prior to the effectiv e date of the final ru le and created for the purpose of serving as part of the cooling wate r system. To the extent such impoundments are determined not to meet the definition of a clos ed-cycle system, EPA notes these costs are a small portion of the total national rule costs because even if all ponds were determined not to meet the definition of CCRS, those facilities using ponds comprise approximately 2 percent of all facilities (less than 7 pe rcent of the 31 percent of existing facilities that cu rrently use CCRSs, noting cooling towers comprise the other rema ining 24 percent). EPA conducted a more formal cost analysis of this at DCN 12-2502.

Some facilities use an existing lake or reservoi r as a heat sink for cooling by withdrawing the cooler water from the bottom of the lake, and returning the warmer water back to the source water. These are sometimes referred to as deep lake water cooling. EPA is clarifying that these systems are once-through cooling systems, and are not addressed by this essay where EPA is referring to cooling pon ds or cooling lakes.

The rule does not exempt man-made impoundme nts even if such impoundments meet the definition of waters of the United States. Nor does this rule alter the definition of waters of the United States. See the rule at 40 CFR 125.92(c) and the preamble for discussion of how impoundments may be demonstrated to comprise a CCRS. To the extent EPA agrees that artificially managed reservoirs may be different than natural la kes, EPA has discussed in the preamble and provided in the final rule that the Director may waive some or all of the information requirements of 40 CFR 122.21(r) if the intake of concern is located in a manmade lake or reservoir, and the fi sheries are stocked and managed by a State or Federal natural

Essay 17A 155resources agency or the equiva lent. Although this provision does not relieve any facility of the requirement to comply with the BTA standards of the rule, it does provide the Director with the ability in certain cases (e.g., wh ere the biological characteriza tion of the source water is significantly influenced by the ac tions of the natural resources agency) to reduce information required for the facility ’s permit application.

EPA disagrees that a cooling pond with a specif ied retention time s hould be exempt from entrainment requirements. The commenter did not provide any data suppor ting the suggestion of 7 days retention time. EPA notes that the re tention time is the volume of the aeration tank divided by the influent flow rate. Thus, even a 100 million gallon pond woul d still withdraw 14 mgd, a volume well in excess of the rule’s applicab ility to those intakes designed to withdraw 2 mgd. The rule does not categorically exclude from entrainment requirements a facility with an impoundment that has a retention time of 7 days or more, because the final rule requires that the Director address entrainment after a site-specifi c assessment. In this assessment, the Director may potentially consider retention time to the ex tent retention time affects adverse environmental impacts including entrainment.

Commenters also expressed concern about c ooling ponds or impoundments being included as part of the definition of a clos ed-cycle cooling system. EPA data show more than 50 facilities have cooling systems that include impoundments. In some cases, the cooling systems that include impoundments were created in the waters of the U.S., in whol e or in part, or were created in uplands but withdraw makeup water from wa ters of the U.S. These cooling systems may perform like a closed-cycle reci rculating system. EPA has clarif ied at 40 CFR 125.92(c)(2) that a cooling system that includes an impoundment lawfu lly created in the waters of the U.S for thepurpose of cooling may be considered a closed-cycle recirculating system. As with other closedcycle recirculating systems, th e Director will determine whethe r the impoundment minimizes the withdrawal of water for cooling purposes and therefore meets th e definition of a closed-cycle recirculating system. See the preamble for discussion of this issue.

Cooling Towers

Wet Cooling A power plant or manufacturing facility may discha rge surplus heat to the air using recirculating water systems which mostly use the physics of evaporation. In other words, a recirculating system reuses cooling water in a second cycle rather than immedi ately discharging it back to the original water source. Most commonly, wet-recirculating systems use cooling towers to expose water to ambient air and dissipate heat. The f acility may employ either natural draft (large parabolic shaped towers using a chimney effect) or mechanical dr aft (modular towers using large fans). Mechanical draft towers enable a much lower profile but requir e more operational power due to the fans. 17 The cooling in the tower is achieved by transferring the water’s heat to the air, both directly and through evapora tion of some of the water. Some of the water evaporates, some of the water is purged to manage the accumula tion of dissolved solids (called blowdown), and the rest of the water is sent b ack to the condenser in the power plant. In the United Kingdom, the

17 EPA is aware of new designs in mechanical draft towers that use the pressurized wate r to operate a hydroturbine, thereby operating with no additional supplied electricity. As of this rule’s final issuance, the technology is patented and already under demonstration status at a refinery.

Essay 17A 156water requirement for a 1600 MWe nuclear unit is about 2 cubic meters per second (173 ML/d), this being about half for eva poration and half for blow-down (see below). Chinon B in France (4x905 MWe) and the proposed Calvert Cliffs pow er plant in the U.S. (1650 MWe) use lowprofile forced-draft cooling towe rs. At Chinon B one cooling tower per unit is 30 m high (instead of 155 m required for a natural draft type there), 155 m diameter, and uses 8 MWe for its 18 fans (0.9 percent of power). At Calvert Cliffs th e cooling tower fans w ill use about 20 MWe (1.2 percent) of power. Because wet-recirculating sy stems based on cooling towers only withdraw water to replace the water that is lost through evaporation in th e cooling tower, these systems have significantly lower water withdrawals than once-through systems, but tend to exhibit a higher level of water consumption. Cooling towers with recirculating wa ter are a common visual feature of power plants, often seen with condensed water vapor plumes.

The most common configuration for natural draft towers is called counterflow. These towers have a large concrete she ll with a heat exchange “fill” in a la yer above the cold air inlet at the base of the shell. The air warmed by the hot water rises up through the shell by convection (the chimney effect), creating a natural draft to provide airflow to cool the hot water which is sprayed in at the top. Other configurat ions include crossflow, where th e air moves laterally through the water, and co-current, where the air moves in th e same direction as th e water droplets. These towers do not require fans and ha ve low operating but significant maintenance costs. For a large facility they may need to be ove r 200 meters high. They are used most frequently in large nuclear and coal-fired plants in Europe, easte rn U.S., Australia, and South Africa.

Mechanical draft cooling towers ha ve large axial flow fans in a timber and plastic structure. The fans provide the airflow and are able to provide lower water temperatures than natural draft towers, particularly on hot dry days. However, th ey have the disadvantage of requiring auxiliary power, typically about 1 to 1.2 percent of the plan t’s output. Mechanical draft towers are used predominantly in central and western U.S. since they can provide a more controlled performance over a wide range of climates, ranging from freezing to hot and dry. Also they are less visually obtrusive designs, being less than 50 m hi gh. For more information, see the TDD.

Dry Cooling Where access to water is even more restricted, or environmental and aesthetic considerations are prioritized, dry cooling techniques ma y be chosen. As the name suggests, this relies on air as the primary medium of heat transfer, rather than evaporation from the cooling circuit. Thus, dry cooling means that minimal water loss is achie ved. There are two basic types of dry cooling techniques available.

One design works like an automobile radiator and employs high-flow forced drafts of air past a system of finned tubes through wh ich the steam passes, simply tr ansferring heat to the ambient air directly. The whole power plan t then uses less than 10 percen t of the water required for a wetcooled plant, but 1 to 1.5 percent of power output is consumed by the large fans required. This is direct dry cooling, using air-cool ed condenser (ACC) and it is not currently known in use for any nuclear power plant.

Alternatively, there may still be a condenser cooling circuit as w ith wet recirculating cooling, but the water in it is enclosed and cooled by a flow of air past finned tubes in a cooling tower. Heat

Essay 17A 157is transferred to the air, but less efficiently. This technology is not favored if wet cooling depending on evaporation is possible, as the energy use is only 0.5 pe rcent of output. This system appears to be the back-up system pla nned for Loviisa in Finland in 2014. In the U.S., EPA is aware of several manufact uring facilities that use either or both types of dry cooling for specific process units.

Hybrids Some mechanical draft towers are a hybrid design incorporati ng a dry section above the wet section. The mode of cooling used depends on the season, with dry cooling being preferred during the colder months. In both dry and hybrid cases there is no dependence on vaporization and hence no evaporative loss of cooling water. The use of fans allows for greater control over cooling than relying simply on natu ral draft. However the heat tran sfer is much less efficient and hence requires a larger cooling plant which is m echanically more complex.

Definition of Closed

‐ Cycle Recirculating Cooling EPA found in site visits that facilities with we t cooling towers did not operate the towers to minimize the withdrawal of makeup water. Theref ore the proposed definition of closed-cycle recirculating cited examples of proper opera tion, including flow reduc tion observed at power plants with well-operated cooling to wers, as well as levels of the cycle of concentration found at manufacturing facilities with well-operated to wers. These parameters generally represent minimized makeup and blowdown, with slightly different values fo r fresh and salt water sources of makeup water. In the final rule the Director will determine whether any specific impoundment, cooling tower, or other closed-cycle recirculating system, is properly operated and thus meets the requirements of the final rule . Makeup water and blow down is specifically included in the definition of a cl osed-cycle recirculating system to reflect the efficient use of cooling towers as part of the recirculating co oling system. In addition, EPA notes that states retain the ability to address local water issues.

Flow Reduction Commenters provided a number ofspecific elements to include in the definition of a closedcycle system (e.g., considering makeup water, ad justing the flow reduction threshold, adopting the definition of closed-cycle co oling from the Phase I rule, establishing a “commensurate with closed-cycle cooling” threshol d). Commenters also noted that by including the 94.9 percent and 97.5 percent flow reduction as standards in the definition of closed-cycle, that the new unit requirements were more stringent than Phase I. Another commenter s uggested flow reduction targets, such as a 90 percent re duction in water demand, as indi cative of a well-operated system. In Phase I, EPA stated that closed-cycle coo ling reduced flow by a minimum of 70 percent for saltwater systems. This value was adjusted in Phase II to a minimum of 72 percent flow reduction. Commenters then note that applying the Track II requirement for comparable performance of 90 percent results in a mini mum flow reduction of 85 percent (because 90 percent of the 94.9 percent flow reduction require d in the proposed rule is 85 percent). The comments further assert that this is a change to the Phase I rule that EPA cannot lawfully make without giving fair notice or opportunity to comment.

Essay 17A 158EPA has considered each of thes e suggestions, and upon re view of the Phase I rule and today’s final rule, disagrees with these suggestions. The final rule defines the major elements of what constitutes a closed-cycle cooling system, and does not elaborate on narro wer aspects because it results in a more cumbersome definition that would not improve implementation. To the extent that additional flexibility is necessary, the final ru le provides that the Director will make the final determination on a site-specific basis. EPA disagr ees that the proposed rule has any effect on the Phase I rule, and further disagree s that the definition is more st ringent. First, this definition would not in any way change the Phase I rule, as the proposed definition of closed-cycle would have only applied to existing f acilities. EPA also notes that the low end of the range of 70 percent reduction cited in Phase I was given as an example of a worst-case situation where sitespecific water quality based discharge standards li mit the chloride content in the blowdown to a maximum increase of 10 percent over background . This worst-case scenario would limit the cycles of concentration of the cooling tower to 1.1, a concept di scussed further below. Both the Phase I and Phase II rulemaking records identify saltwater closed-c ycle systems as clearly being capable of operating cooling towers at a cycl e of concentration of 1.5 (or greater). This 1.5 cycles of concentration is the level of performance equivalent to a 94.9 percent flow reduction. However, this specific comment is no longer releva nt since in the final rule EPA has changed the definition of closed-cycle so that a facility does not need to demonstrate that it achieved the cited values for cycles of concentr ation and the corresponding percent reduction in flow to establish that it is operating a closed-cyc le recirculating system. Rather , as EPA has explained in the preamble to the final rule, achievement of the cite d values for cycles of concentration and flow reductions are indications of a well-operated clos ed-cycle cooling system. Similarly, commenters suggesting the standard for new units are more st ringent than Phase I new facility requirements are incorrect.

EPA notes that some commenters questioned EPA’s logic in stating that makeup flows at large closed-cycle cooling systems could approach or exceed 100 mgd. Commenters appear to have misunderstood EPA’s statement. EPA’s statement regarding makeup flows merely indicates the fact that the largest facilities with wet cooling towers still have the potential to withdraw significant volumes of water for cooling (77 FR 34319). With respect to the IM requirements, because a properly operated CCRS achieves an av erage flow reduction of 96 percent, such technologies already perform equal or better than the BTA performance standards for IM in the final rule. However, upon examining the data fr om the industry technical survey, the largest withdrawals for a once-through facility are approxim ately 3 billion gallons per day. If a facility of that size were to retrofit to closed-cycle cooling with a flow reduc tion of 94.9 percent, the makeup flows would be approximately 150 mgd. Thus while EPA agrees that significant reductions in flow over a once through cooling syst em is one of the best ways to minimize AEI, and that properly operated CCRS achieves BTA, EPA also notes that an intake flow of 150 mgd is not an insignificant amount of cooling water. With respect to entrainment, depending on the configuration (such as withdraw for makeup water is not minimized) and location of the intake (such as on a small river), it is possible that such an intake could still be contributing to an unacceptable level of adverse environmental imp act, despite the magnitude of flow reduction already realized.

As discussed above, if a facility’s configuration is such that it ha s significantly reduced its intake flow, but cannot demonstrate to the Director that it has a prop erly operated and maintained closed-cycle system, the facility may inst ead choose to comply under the “system of

Essay 17A 159technologies” approach at 40 CFR 125.94(c)(7) and would use the intake flow reductions towards complying with the impingement mortality standards. Such a facility would also provide data on the reduction in flow to the Director as part of the site-specific entrainment determination.

Cycles of Concentration Some commenters appeared to misunderstand what a cycle of concentration (COC) means. Cycles of concentration can be measured as the ra tio of chloride levels in the recirculated water or blowdown relative to th e chloride levels in the source wa ter, or makeup water. Cycles of concentration represents the accumulation of diss olved minerals in the recirculated cooling water. Discharge of a portion of the water (called “blowdown”) is used to control the buildup of these minerals. COC is a measure of how concen trated are chlorides in recirculated water relative to makeup water, and thus how well a syst em recycles intake water before replacing it with new withdrawals. This is not to be confused with cycles of flow, as some commenters appeared to do.

Commenters questioned EPA’s defi nition of a closed-cycle system, including the proposed rule definition of proper operations based on a mini mum COC for closed-cycle systems. Another commenter favored more stringent COC requirement s. Some commenters stated that, while they have been operating as closed-cycle units fo r many years, they were concerned that their facilities would not be “closed-cycle recircul ating systems” under the proposed definition because they would not achieve the required CO C. EPA has found the concentration cycles in the majority of cooling towers usually range from 3 to 6 at power plants, and can often exceed 9 at manufacturing facilities. However, EPA rec ognizes that many manuf acturers have complex water balances, and calculating a specific flow reduction attributab le to cooling water use could be difficult and time consuming. In such cases , many manufacturers could far more readily calculate the cycles of concentration of particul ar unit operations, and could therefore show those unit operations that use cooling water meet the conditions for closed-cycle cooling. EPA found in site visits many complex manu facturing plants already have this capability, and have achieved very high COC. Likewise, power plants may find it much easier to measure flow than cycles of concentration. Accordingly, EPA’ s proposed rule attempted to recognize performance using either metric. EPA expects most power generato rs would use percentage flow reduction to demonstrate they are closed-cycle, and expects most manufacturing facilit ies would use COC for those units that utilize water for cooling purposes . Increasing the amount of minerals present in the water by cycling can make water less aggressi ve to piping; however, EPA is also aware that excessive levels of minerals (such as found in certain source waters, most notably those with higher salinity) can cause scaling problems, lead ing to different levels of both metrics for freshwater and saltwater facilitie s. After EPA carefully consider ed these issues, EPA concluded that the most important aspect of the definiti on of a properly operated closed-cycle cooling system is that the makeup flow be minimized. T hus EPA has removed the numeric levels of the metrics as threshold, while retaining the mini mized makeup flow aspect of the definition.

While EPA has determined that a COC of 3.0 for freshwater facili ties and 1.5 for marine facilities (approximately equivalent to a pe rcent reduction in flow of 97.5 percent and 94.9 percent, respectively) is indicative of a well- operated cooling system (i.e., one that truly minimizes makeup withdrawals), as discussed above the EPA has decided not to include a

Essay 17A 160minimum COC requirement as part of the defi nition for closed-cycle systems. Instead, the definition at 40 CFR 125.92 requi res makeup flows be minimize d. These flow reductions and COC serve as indicators of minimized makeup fl ows, and thus may be used by Directors when assessing performance of a partic ular CCRS. Regardless of whether facilities achieve either these levels of COC or reductions in flow, the Director would determine whether such facilities in fact are operating as a close-cycle recirculating cooling system. Th e Director would review the information provided by the facility and determin e if the facility’s configuration and operation are otherwise consistent with the definition of a closed-cycle coo ling system in the final rule. A facility may, during the permitting process, demonstrate how particular site-specific circumstances may affect the performance of its closed-cycle system relative to the benchmarks EPA has suggested for evaluating whether a syst em is a closed-cycle recirculating system. Therefore EPA notes that these metrics, while no t an explicit requirement in the final rule, are applicable in many instances, and therefore as st ated in the preamble these metrics are provided as examples. A facility with CCRS systems but th at do not meet the definition of closed-cycle cooling will need to demonstrate to the Direct or the additional technologies or operational measures employed are adequate to achieve BTA under one of the other compliance alternatives.

As an example, in the case of a facility that uses makeup wa ter from a freshwater source, a Director may determine that a closed-cycle reci rculating system can generally be deemed to minimize makeup and blowdown flow s if it reduces actu al intake flows (A IF) by 97.5 percent as compared to a once-through cooling system or if its cooling tower is operated at a minimum cycles of concentration of 3.0. A nd likewise, in the case of a fac ility that uses makeup water from a saltwater, brackish, or othe r source with a salinity of greate r than 0.5 parts per thousand, a Director may determine that a closed-cycle reci rculating system can generally be deemed to minimize makeup and blowdown flow s if it reduces AIF by 94.9 percent as compared to a oncethrough cooling system or if its cooling tower is operated at a minimum cy cles of concentration of 1.5. These reductions and cycles of concentrat ion are illustrative. A Director may determine that other levels near these numbers could also constitute a closed-cycle system. The final rule further recognizes that in certa in unavoidable circumstances, th ese levels for COC or percent flow reduction might not be achievable at all facilities. Such circumstances could include situations where water quality-ba sed discharge limits might limit th e concentration of a pollutant that is not readily treatable in the cooling to wer blowdown or situations where varying source water quality could lead to una voidable problems concerning scale formation, solids buildup, corrosion, or media fouling. Such facilities should demonstrate these circumstances to their Director and indicate the measures they have ta ken to minimize makeup flows. The Director will retain the discretion to conclude that the particul ar facility employs a closed-cycle recirculating system when the benchmarks are not met.

EPA disagrees with the commenter in favor of increasing the COC requirement, as such a requirement could increase chemi cal costs and water treatment cost s, not reduce them (as stated by the commenter). The reference cited in the comment was developed for small cooling systems that discharge to a wastewater treatment plant with a stated goa l of reducing its discharge flow, which ultimately affects the strategies that the treatment plant may promote to its clients. While EPA recognizes that a reduction in total flow (achieved by in creasing the COC) may reduce certain chemical costs on a simple mass basis, the increased COC can introduce or exacerbate other issues (such as scale and chemical deposits) that would then need to be addressed by other chemicals. As the cited reference noted, “[d] etermining the optimum number of cycles of

Essay 17A 161concentration is a balancing act between the reduced chemical, water, and sewage costs at higher cycles of concentration versus th e increased risk of scale forma tion.” In the final rule, EPA has not included a requirement for COC in the definition of closed-cycle.

Intermittent Flow Comments addressed the intermittent flow pr ovision in the definition of closed-cycle recirculating system. Some commenters assert ed that a prohibition against any level of continuous flow is unreasonable. Commenters argue d that there is no reas on why a closed-cycle recirculating system has to have an intermittent flow of makeup water, but there are reasons why a consistent flow may be desirable. Commente rs argued that some ponds withdraw a continuous flow because this protects the source waterbody. Commenters noted that limiting makeup water to replenishment of certain losses will in terfere with common power plant practices.

The commenter appears to misunderstand the rule definition. The definition of closed-cycle recirculating system does not requ ire an intermittent flow in the final rule. In addition, the final definition provides flexibility so that replen ishment can extend to lo sses beyond blowdown, drift or evaporation in specified circumstances. Such replenishment is not prohi bited by the final rule. Under the final rule, in evaluating whether a particular cooling wate r intake structur e represents a CCRS, the Director will determine whether such withdraws are for cooling purposes and thus are attributable to a determination that the withdrawals constitute minimized makeup.

Emergency Flows Some commenters sought cl arity on the 316(b) rule applicability to emergency flows. In cases where the Director will make a determination as to whether the facility’s cooling system meets the definition of a closed-cycle system, EPA’s intent is that th e withdrawal of small amounts of service water (for uses such as fire suppression, potable water, screenwash water, vehicle wash water, and such) do not preclude co nsideration of the system as closed-cycle. EPA has clarified in the definitions of the final rule that design intake flow does not incl ude emergency and fire suppression capacity.

Performance of CCRS EPA has made it clear that a facili ty that uses a closed-cycle reci rculating system, as defined in the rule, would meet the rule requirements fo r impingement mortality at 40 CFR 125.94(c)(1). As discussed above, EPA has made this decision based upon the record that shows that CCRS on average reduces flow by 96 percent, and theref ore properly operated CCRS meets or exceeds the BTA performance standard for IM. The final rule language specifically identifies closed-cycle as a compliance alternative for the IM standards.

Demonstration Status Several commenters suggest that CCRS is not de monstrated. EPA disagrees. Cooling towers are used by power generators of all fuel types, usi ng both fresh water and salt water as the source makeup water. See EIA Form EIA-860 (2012). Si milarly, manufacturers use both wet and dry cooling where cooling water is used for power generation. Further, EPA has identified numerous manufacturers that use CCRS for cooling of pr ocess units at iron and steel plants, petroleum

Essay 17A 162refineries, chemicals manufacturer s, and food and agricu ltural products; see the site visit reports in the record. According to U.S. Energy In formation Administration, Form EIA-860, Annual Electric Generator Report of th e 1,655 operable cooling systems in the United States, 875 (53 percent) reuse water either through a cooling tower or a cooling pond, 719 (43 percent) do not reuse water, and 61 are either dry or hybrid (switching betwee n dry and wet cooling depending on the temperature and availability of wa ter). See the TDD for more information.

Comparison to Other Technologies Commenters requested EPA consider technolog ies that perform comparably to CCRS. Most commenters did not suggest what technologies demonstrated a performance comparable to CCRS. None of the commenters provided perfor mance data that demonstrated performance comparable to CCRS. One commenter specifical ly argued that wedgewire screens can offer comparable performance to closed-cycle cooli ng. The commenter did not provide comparability performance data.

EPA disagrees with all of these comments. With re spect to traveling screen s, the record clearly shows that the performance of traveling screen s does not equal or exceed the performance of CCRS for impingement mortality, and moreove r traveling screens offer no reduction in entrainment unless the screens c onsist of fine mesh. While some sites obtained reductions in entrainment with one or more t echnologies including fine mesh screens, EPA found that some studies did not distinguish between intake location (such as offs hore submerged intakes) and the fine mesh screens themselves. Other studies showed a bias towards older/larger larvae, which are generally more developed and starting to exhibit su rvival traits and avoidance responses. Studies also did not fully characterize su rvival of entrainable organisms. For all of these reasons, fine mesh screens do not offer survival of entrainabl e organisms to the extent CCRS can. The record shows that CCRS reduces the entrainment mortality of eggs and larvae 8-fold more than fine mesh screens (based on the mean value of perf ormance data for both eggs and larvae); see TDD Chapter 6 for more details. EPA further notes that even if fine mesh performance was comparable to CCRS, fine mesh is not available at an estimated 17 to 55 percent of facilities based on the need to expand the existing intake to accommodate fine mesh (specifically reflecting analysis of existing intakes to be en larged to accommodate fine mesh with 2.0-mm and 0.5-mm mesh, respectively). EPA’s t echnical analysis shows as ma ny as 68 percent of facilities would need to expand the size of their intake by more than five times, leading EPA to conclude that fine mesh screens would not be an availa ble technology at those site s. As noted above, EPA did not receive any comments or data to the c ontrary. See Section VI.C of the preamble for further discussion of fine mesh screens. EPA notes that high sediment waterbodies pose a challenge for fine mesh screens, and high sedi ment water can cause “b linding” of the intake.

Evaporative Losses Commenters expressed concern about consumptiv e losses of water due to a conversion to a closed-cycle cooling system. Riverkeeper noted that consumption of water should be a factor considered in evaluating cooling system options. EP A disagrees that this is a significant concern. EPA has considered this issue in several wa ys. First, EPA found that comparisons of oncethrough to cooling towers provi ded in comments ignored the a dditional evaporation of water from the downstream discharge of heated wa ter from a once-through cooling system. The

Essay 17A 163discharged water from once-through cooling may exceed 100 degrees. The elevated source waterbody temperature has increased evaporation th an would occur in the absence of the thermal discharge. Second, in most cases, there are multiple facilities that withdraw from the same source water, resulting in cumulative impacts such as progressively higher sour ce water temperatures. See Essay 14 for more discussion of the freque ncy of cumulative impacts. Third, evaporation modeling shows in certain cases, such as where the source of cooling tower makeup water is a small river or lake, the additional evaporative lo ss in the source water due to the discharge of heated water from a once through system is compar able to the evaporative losses from a cooling tower. In contrast, the heated water from a c ooling tower may not sign ificantly contribute to evaporation from an ocean, nor does an ocean inta ke likely contribute to significant evaporative losses due to cooling towers. F ourth, a source water that is su pposedly too small to support a cooling tower (due to evaporative losses) is also too small a sour ce of water to provide adequate flow for a once-through cooling system. This ha s prompted some fac ilities to re trofit oncethrough cooling to cooling towers; see, e.g., DCN 10-6524, 10-6536 and 10-6538. For all of these reasons, EPA’s record does not support the position of commenters that increased evaporative losses from a closed -cycle system should be a fact or in EPA’s consideration of closed-cycle for national BTA requirements. Evaporative loss of water, however, is one of a number of factors that the Director may consider in de termining BTA requirements for entrainment on a site-specific basis. EPA agrees that in certain watersheds where available source water is a significant c oncern (e.g., arid areas), evapor ative consumption may play a larger role in decision-making regarding cooling water intake system choices. Therefore the final rule requires a facility to evaluate evaporativ e losses on a site-specific basis when submitting the Non-Water Quality Environmental and Other Im pacts Assessment information required in 40 CFR 122.21(r)(12).

EPA agrees that cooling towers gi ve rise to some level of water consumption, with data in EPA’s record showing up to 3.0 liters being evapor ated for each kilowatt-hour produced, depending on conditions. See the TDD for more details. This ev aporative water loss by phase change of a few percent of it from liquid to vapor is responsible for removing most of the heat from the coolant water. Water evaporating from the cooling to wer leads to an increasing concentration of impurities in the remaining coolant. Some bleed – known as “blowdown” – is needed to maintain water quality. Despite many coal and nuclear plants using wet cooling towers, in the U.S. electric power generation accounts for only about 3 percen t of all freshwater c onsumption, according to the U.S. Geological Survey - some 15.2 gigaliters per day (5550 GL/yr). However, as mentioned above comparisons made by commenters neglect evaporation of once-through cooling systems.

Commenters provided an August 2010 report from DOE’s National Energy Technology Laboratory (NETL) which analyzed the implications of new environmental regulations for coalfired plants in the U.S. The NETL report noted that the projected increase in coal-plant water use over the next two decades if direct cooling is no longer allowed on new plants does not factor in the likelihood that many coal plants will add carbon capture and storage (CCS) technology to constrain U.S. carbon emissions, thereby incr easing water consumption by a further 30-40 percent. EPA disagrees that such water consumption is a result of this rule.

Essay 17A 164Alternative Sources of MakeUp Water Commenters observed that the definition of CCR S should allow for other uses of makeup water beyond “blowdown, drift and evapora tion”, such as water stored in cooling ponds. In addition, it should clearly allow other uses, including service water, emergenc y back-up and fire protection, and facility maintenance and sani tary uses (also screen washi ng, air preheater washing, boiler makeup, and wetlands rehydration).

EPA acknowledges water may be used for purposes other than for cooling, and distinguishes between makeup water for cooling and water used for other purposes. The final rule definition requires makeup be minimized and provides for the replacement of water lo st due to evaporation. The final rule also allows for such systems to replace other water losses. See the final definition of CCRS at 40 CFR 125.92. See Essay 14 for more details.

Rejection of CCRS as BTA As explained in the preamble, closed-cycle c ooling based on wet cooli ng towers is a highly effective technology for reducing both impingement and entrainment. Howeve r, with respect to entrainment, the EPA has concluded that it s hould not adopt a BTA entrainment standard prescribing a uniform national technology with a requirement for a (CCRS) closed-cycle recirculating system based on wet cooling towers . EPA concluded that closed-cycle cooling is not an available entrainment re duction technology on a national scale and therefore should not form the basis for the “best technology available” entrainment standard.

Three Factors EPA concluded that closed-cycle cooling is no t an available entrainment reduction technology on a national scale and therefore should not form the basis for the “best technology available” entrainment standard. The record shows that closed -cycle cooling is not technically available in a number of circumstances either because (1) land availability and geographical constraints could be a factor on a local basis (such as limited space available to install cooling towers, noise mitigation, and setback distances for plume abatement); (2) increased air emissions (such as due to the need for increased fuel burned to operate the cooling towers); a nd (3) remaining useful plant life (for example a plant scheduled to be shutdown in 3 years will result in very little entrainment reductions as compared to a facility th at will continue to operate for a significantly longer period). That is, the record demonstrat es that while EPA cannot identify with precision the extent of these limitations on installing closed -cycle cooling systems nationwide, the record indicates that the circumstances are neither isol ated nor insignificant. EPA tried to identify characteristics for which it has information that would allow it to subcat egorize those facilities where closed-cycle is not available (e.g., land size threshold), but wa s unable to do so and concluded that such determinati ons can only be made on a site-spe cific basis consideration; see the TDD for further discussion. Furthermore, contrary to the statement made by some commenters, EPA reasonably concludes that the avai lability of a technology to the industry is an appropriate factor for evalua ting BTA technology bases for national standards. EPA has historically evaluated th e availability of a technology to the industry in making technology base determinations for other national technology ba sed performance standards. Examples of nonwater quality and other impacts cons idered in this rule at 40 CFR 122.21(r)(12) include changes to energy consumption, estimates of air pollutant emissions, changes in noise, impacts to safety,

Essay 17A 165facility reliability, and consumption of water. For more information on the reasons EPA rejected closed-cycle cooling as the basis for national BTA entrainment requirements, see the preamble.

Cost and Affordability Commenters suggested that CCRS was too expe nsive. Some commenters provided facility estimates and EPA considered these data; see DCNs 12-6655 and 12-6656. Other commenters cited energy costs and lowered plant efficiency. For example, cooling towers with recirculating water reduce the overall efficiency of a power plant by 2-5 percent compared with once-through use of water from sea, lake or large stream, the amount depending on local conditions. Commenters cite a 2009 U.S. DOE study which says they are about 40 percent more expensive than a direct, once-through cooling system. Elsewhere the study says dry towers are three to four times more expensive than a re circulating wet cooling system.

As discussed above, EPA did not conclude that closed-cycle cooling is not available at every facility. Nor has EPA rejected CCRS on grounds that the technology is not economically achievable. While EPA did consider costs, costs were not a dispos itive factor in the decision to reject CCRS based on cooling towers. Rather, EPA c onsidered its applicability to the industry as a whole. See the EA for the impacts analysis of regulatory options ba sed on CCRS as BTA.

Other Options Considered Based on CCRS EPA also examined other closed-cycle cooling scenarios in developing the final rule. Some commenters (including Riverkeeper ) advocated that EPA consider dry cooling in determining national BTA. For dry cooling, consistent with EPA’s previous findings (see, e.g., 69 FR 41608), EPA found that it does offer a slightly greater flow reduction (essentia lly 100 percent reduction in intake withdrawals) but at a significantly hi gher cost. Thus, dry cooling would reduce IM&E by roughly 5 percent over wet cooling. In Phase II and Phase III, EPA found that dry cooling costs as much as 10 times as wet cooling. While dry cooling may not be as costly today, it still costs at least twice as much as wet cooling. Furthermore, dry cooling ha s a higher energy penalty than wet cooling. While EPA recognizes that dry cooling is becoming a more common technology and that its costs have decreased over the past decade, EPA ultimately rejected this option for the same reasons that it rejected all other closed-cycle options: (1) land availability and geographical constraints could be a factor on a local basis (s uch as limited space available to install cooling towers, noise mitigation, and setback distances; (2) increa sed air emissions (such as due to the need for increased fuel burned to operate the cooling towers); and (3) remaining useful plant life (for example a plant scheduled to be shutdown in 3 years will result in very little entrainment reductions as compared to a facility th at will continue to operate for a significantly longer period). Refer to the proposed rule preamble (76 FR 22208) and the TDD for more information on this option and today’s preamble for information on why closed-cycle cooling was not selected as BTA for entrainment at exis ting facilities. For all of these reasons, EPA has concluded that dry cooling is not available. Further dry cooling is not a cost-eff ective option (5 percent improved performance over wet cooling at anywhere from 2 to 4 times the cost) for the reduction of impingement under a national regulat ion for existing facilities. See 67 Fed Reg.

Essay 17A 16617122, 17168 ( 2002). 18 Dry cooling may still be considered by the Director as part of the entrainment determination, and may for exampl e, be justified over wet cooling in those geographic areas with insufficien t water resources to support any water withdraws for cooling, or where cooling tower drift has been confirmed as a concern in an area where entrainment poses an AEI.

EPA solicited comment in the proposed rule on the use of seasonal operation of closed-cycle cooling during peak entrainment season. Commenters noted that, at some sites, this may yield equivalent reductions in impingement and entrai nment to a fully closed-cycle system, while reducing the overall energy penalty and O&M costs. Other comment ers noted that closed-cycle cooling should be utilized year-round, and that additional fish-protective measures (such as seasonal outages) should be utilized during peak entrainm ent season. EPA appreciates the submittal of technical studies on seasonal closed-cycle systems that are included in the record for today’s final rulemaking. EPA generally agrees th at the long-term costs of a seasonal closedcycle cooling option would likely be lower than a fully closed-cyc le option, due to reductions in O&M over the life of the technology. But EPA ultim ately rejects this option due to the same factors EPA did not select other op tions based on closed-cycle as BT A; refer to the proposed rule preamble (76 FR 22208) for more information on this option and today’s preamble for information on why closed-cycle cooling was not selected as BTA for entrainment.

Some commenters suggested different applicability thresholds for the final rule requirements. Such thresholds do not change EPA’s three prim ary reasons for rejecting CCRS as BTA. Also see Essay 14 regarding scope and applicability.

See Essay 19 regarding EPA’s consideration of a requirement for CCRS with an off-ramp, or consideration of a final rule opt ion that would require CCRS with a rebuttable presumption of CCRS as BTA.

18 EPA encourages permitting authorities to consider utilizing the technology on a site-specific basis where appropriate, as it would meet the de finition of a closed-cycle cooling system at 40 CFR 125.92. However, dry cooling is not required under the rule and existing facilities ar e not required to retrofit to dry cooling under the rule. EPA also encourages the use of dry cooling technologies, especially for cooling smaller process units at manufacturing facilities. Facilities may demonstrate reductions in cooling water intake flows due to the use of dry cooling through 126.94(c)(6) system of technologies.

Essay 17A 167

### Essay 18: Impingement and Entrainment Technologies and Operational
Measures

Introduction In the proposed rule and NODAs, as well as th e Technical Development Document (TDD) for the proposed rule, EPA discussed a wide variety of intake technol ogies and operational measures that can be employed to reduce impingement a nd entrainment. This essay addresses comments from the public related to these technologi es and operational measures. In many cases, commenters advocated that a gi ven technology or operational meas ure should be considered as BTA (or as credit towards meeting BTA) in th e final rule. Many commenters also expressed concern over a number of requirements laid out in the proposed rule, princi pally noting that these requirements were not feasible or necessary at most facilities.

EPA’s record demonstrates that a wide variety of technologies can be used by themselves or in combination as part of a “system” of technol ogies to minimize impingement and impingement mortality. The record shows the same is not true about entrainment controls. Commenters provided information on the performance of some technologies, as well as opinions on how EPA should incorporate the performan ce of some technologies or opera tional measures in the final rule framework. The final rule addresses impi ngement by establishing a national impingement mortality standard with seven different co mpliance alternatives whose performance is comparable to or better than that of the tec hnology – modified trave ling screens with fishfriendly returns – that EPA determined is th e best technology available for minimizing impingement. The final rule establishes a nationa l BTA standard for entrainment that requires determination of entrainment controls on a site-specific basis in a structured proceeding requiring consideration of prescribed factors. See the pream ble sections V and VI fo r a description of the final rule.

Background Over the course of the 316(b) rulemaking process, beginning with th e development of an industry- wide technical survey conducted in 2000, EPA has collected a wealth of knowledge about intake technologies, thei r feasibility, costs, and performance. Part of this improved understanding is a result of EPA’s clear arti culation of impingement versus impingement mortality, and entrainment versus entrainment survival. Further, entrainment exclusion does not necessary equate to entrainment survival (76 FR 22185). EPA has found that entrainable organisms that are collected show poor survival in the case of most eggs, and essentially no survival of larvae. Consequently, on the basis of the record informa tion it has reviewed, EPA concluded for purposes of this rule that all entr ained organisms die, i.e., no entrained organisms survive. (See, for example, 76 FR 22188 (April 20, 2011) and 69 FR 41620 (July 9, 2004).) See the proposal preamble at 76 FR 22197 as well as additional discussion in the preamble for the final rule for a complete discussion of this i ssue. Additional perspective was obtained through 22 site visits during the Phase II rule development and over 50 site visi ts to both electric generators and manufacturers since 2007; see TDD Chapter 2 for more details. EPA also collected information from facilities the staff did not physi cally visit, and several stakeholders provided

Essay 18 168information to EPA in addition to that submitted during the public comment period. In some cases technologies have improved (such as compos ite materials that are lig hter, sturdier, and less expensive), new technologies have been developed (such as new rotary screens), or the data identifying the performance of a given technolo gy has been refined (such as lab studies to measure conditions before and af ter an intake technology where in-situ monitoring is not practical). Accordingly, during each phase of the 316(b) rules development, EPA has provided extensive discussions reflecti ng the most current understandi ng of the variety of intake technologies and operational measures:

Phase I: The proposed rule TDD (Economic and Engineering Analyses of the Proposed §316(b) New Facility Rule, August 2000) analyzed several compliance alternatives, including relocating an intake, reducing intake flow (including convers ion to closed-cycle cooling), reducing intake velocity, and installing a variety of intake technologi es (traveling screens with fish baskets, wedgewire screens, and velocity caps). The final rule TDD (Pha se I—New Facilities, Technical Development Document for the Final Regulations Addressing Cooling Water Intake Structures for New Facilities, November 2001) dedicated an entire chapter to discussing the efficacy of intake technologies, including many that were not addressed in th e proposed rule analysis. This discussion also included EPA’s firs t attempt to quantitatively describe the percent reduction in impingement (not impingement mortality) and en trainment (see Table 5-1) , as well as providing a fact sheet for each technology that provided te chnology performance data, site-specific details from individual facilities, desi gn criteria, and advantages and disadvantages of each technology.

Phase II: EPA expanded its data collection efforts for information on intake technologies, especially with regards to performance data . As described in the NODA (68 FR 13538, March 2003) and TDD for the final rule (Phase II—Larg e existing electric generating plants, Technical Development Document for the Final Section 316 (b) Phase II Existing Facilities Rule, February 2004), EPA developed a technology efficacy database to support the development of a performance range that facilities would be required to meet. EPA also hosted the Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms in May 2003 to gather experts in the field of intake technologies.

Phase III: In the proposed TDD (Technical Development Document for the Proposed section 316(b) Phase III Rule, November 2004), EPA a dded information regarding technologies for intakes at offshore facilities.

Existing Facility Rule: As described in the proposed rule (76 FR 22184, April 20, 2011), NODA (77 FR 34317, June 11, 2012), and proposed TDD (Technical Development Document for the Proposed Section 316(b) Phase II Existing Facilities Rule, Marc h 2011), EPA expanded its data collection efforts for intake t echnology data. Specifically, EPA collected and reviewed a large number of documents in the development of the impingement mortality performance standard. In doing so, EPA conducted a detailed evaluation of th e intake technologies used at facilities documented in impingement studies and retained only those that met certain criteria for acceptability for developing the performance sta ndard. (See Essay 16A and Chapter 11 of the TDD for more information on the development of the standard.) EPA also developed more detailed analyses about indivi dual technologies or operational m easures as needed and included these materials in the record; for example, see DCN 10-6601 for a memo on variable speed
pumps.

Essay 18 169Overall Response: Introduction As discussed above, EPA has collected and eval uated data on the performa nce of intake technologies and operational measures over consid erable time and with numerous opportunities for public input. In the Phase II final rule, EPA stated that “[while] many documents do show a level of success in reducing impingement mortality or entrainment, other studies have shown the deployed technology to be unsuccessful or at best inconclusive. EPA does not view the varying degrees of success with regards to a specific technology as indicative that the performance standards cannot be met, but rather as evidence that some technologies work in some applications but not in others.” (See 69 FR 41612, describing the data used to develop the nowwithdrawn performance range.) Since the Phase II rule, EPA has identifie d additional studies and data showing the performance of the technologies considered for the final rule. This information has resulted in an improved understanding of the relationship between impingement and impingement mortality, entrainment and entrainment mortality, entrainment survival, and impinged entrainables (or “converts”). See VI .B of the preamble and Essay 15 for detailed discussion of these concepts.

Impingement Mortality BTA Standard As discussed in the preamble, closed-cycle coo ling is the most effective technology for reducing both impingement mortality and entrainment. EPA, however, decided that it should not base the BTA standards for IM and entrainment on the pe rformance of closed-cycle cooling systems based on a number of factors (including that CCRS is not available nationally). See preamble section VI and Essay 15 for further explan ation of the reasons for EPA’s decision.

In addition to closed-cycle cooling, EPA has identi fied several other techno logies that are also effective in reducing impingement and impingement mortality. The costs, availability, feasibility, and performance of these technologies are disc ussed in TDD Chapter 8. However, other than modified traveling screens with fish returns, none of these technologies are available nationally. As stated in the preamble, as a result of this thorough evaluation, EPA decided to base the BTA standard for impingement mortality on the perf ormance of well-operated modified traveling screens with a fish handling and return system. EPA has defined “modified traveling screens” at § 125.92 to include, among others, modified Ristr oph screens with a fish handling and return system, dual flow screens with smooth mesh, and rotary screens with fish returns such as vacuum pumps. The definition derives from, and reflects, the technologies EPA used to calculate the impingement mortality reduction performanc e standard. The definition reflects the common features of the most effective screens it used in its assessment of the IM performance standard. EPA often refers to this IM BTA technology simply as traveling screens or modified traveling screens throughout this essay.

As discussed in the proposed existing facility rule (76 FR 22202), EPA developed a monthly and annual performance standard for impingement mo rtality based on the perf ormance of modified Ristroph traveling screens. EPA revised this standard since propos al, as noted in the impingement mortality discussion in a 2011 NODA (77 FR 34317) a nd described in the preamble for today’s final rule, in part due to da ta received from commente rs and in part due to additional analyses performed by EPA. Nonethele ss, it is apparent that modified traveling screens are a widely available, feasible, cost -effective, and high performing technology for

Essay 18 170reducing impingement mortality. See TDD Chapte r 4 for more information on the large number of facilities utilizing traveling screens.

This does not mean that facilities must install traveling screens with fi sh handling and return systems. Rather, as mentioned above, EPA r ecognizes other technologies (that may not be available nationally), are at leas t as effective as the BTA IM t echnology basis. As such, the rule identifies four other technologies that will al so comply with the BTA impingement mortality standard (closed-cycle recirculating systems 19 , reduced design intake velocity, reduced actual intake velocity, and existing offshore velocity ca ps). The data in the record demonstrate that these technologies will achieve impingement morta lity reduction as good as or better than welloperated traveling screens and therefore comply with the BTA impingement mortality standard of today’s final rule. In addition, EPA has included a flexible approach th at allows facilities to comply by employing any of seven alternatives for achieving the BTA impingement mortality standard, including monitored compliance with a numeric impingement mortality performance standard. See Essay 16 for more detailed discussion.

Many commenters provided information on additiona l technologies and operational measures. EPA appreciates the additional da ta, and upon thorough review has c oncluded that none of these may be selected as the basis for BTA for impi ngement mortality or included as a compliance alternative in the final rule. 20 However, as discussed in the preamble, facilities may choose the technologies provided they demonstrate the impi ngement mortality performance standard has been met. Also see § 125.94(c)(7).

Entrainment BTA Standard EPA has identified several technologies that redu ce entrainment, but the performance of these technologies does not approach that of closed-cycle. EPA ha s found generally low performance for entrainment by these technologies, and finds greater uncertainty in their performance compared to IM technologies. Furthermore, some of these entrainment technologies have specific limitations (e.g., site loca tion) that restrict their availability and feasibility, thus precluding their use as BTA tec hnology at many locations. For all of these reasons, EPA did not select any one of these technologies as the basi s for the BTA standard for entrainment. Instead, the national BTA entrainment standard for existi ng facilities requires the establishment of BTA entrainment control measures on a site-specifi c basis in a prescribed permitting setting. See preamble Section VI and Essay 15 for more information.

Specific Technologies Discussions Below, EPA addresses each of the specific t echnologies discussed in the comments; these technologies can generally be divided into th ree categories: flow reduction, exclusion and

19 EPA does not intend for facilities to install closed-cycle cooling solely for the purpose of meeting the IM requirements. In fact, EPA expects all facilities could comply with IM requirements without relying on closed-cycle cooling (see Exhibit VIII-1).
20 This essay generally focuses on the application of tec hnologies to reduce impingement mortality. Each technology discussed below may be appropriate, however, for consideration in addressing site-specific entrainment requirements.

Essay 18 171collection technologies, and avoida nce/behavioral technologies. 21 For purposes of this discussion, low intake velocity which allows fish and shellfish to escape impingement is considered an avoidance/behavioral technology; see Essay 17 for more information specific to this technology. Similarly, see detailed discussion of CCRS and cooling towers are found in Essay 17A.

Flow Reduction Technologies Several technologies are available that employ flow reduction, including we t-cooling towers, that are effective for reducing impingement morta lity, entrainment or both. Some commenters (including Riverkeeper) request ed that EPA use closed-cycle cooling based on wet cooling towers as the technology basis for performance requirements for impingement mortality and entrainment in the final rule. EPA disagrees; as described in the pream ble, Essay 15, and other essays, EPA is not requiring closed-cycle coo ling or equivalent performance for either impingement mortality or entrainment for existing facilities in this rule. However, flow reduction such as that obtained via cooli ng towers and similar closed-cycle recirculating systems remain the most effective technology in reducing flow and associated impingement mortality and entrainment, providing an average 96 percent redu ction in mortality. See E ssay 17A. If a facility reduces intake flows, it similarly reduces the nu mber of organisms subject to impingement and entrainment.

Riverkeeper advocated requiring additional technol ogies to be installed on intakes that supply makeup water to a closed-cycle cooling system. EPA disagrees that additional technologies are necessary for IM, as properly operated cooling towers already achieve an average 96 percent reduction in IM. Therefore EPA has clarified in the final rule that properly operated CCRS including wet cooling towers ar e “pre-approved” technologies for IM at § 125.94(c)(1). Also, see Essays 10 and 16.

EPA also received comments on other methods of fl ow reductions. In general, EPA agrees that these technologies may be viable for reducing flow on a site-specific basis, but ultimately concluded that these technologies are not feasible at all locations, the performance of these technologies is too low to repres ent BTA, and therefore these t echnologies are not appropriate for setting the national BTA for impingement mortality and/or entrainment.

 Variable speed pumps (VSP) or variable fr equency drives (VFD): VSPs can typically reduce intake flows by approximately 8-15 per cent, but are not widely used, based on data and information in the record. The reducti on in flow is dependent on how often the facility can utilize the variable speed driv es on the pumps, which is generally a function of generating needs and the temperatur e of the source waterbody. As noted by Riverkeeper, these reductions in flow may be somewhat uncertain, as they may be realized only during certain periods of time depending on ope rational considerations, but over the course of long-term use significan t reductions in flow may be obtained. In particular, baseload power generating facilities have a more consistent waste heat load, and are the least likely to reduce overall co oling water flows except when the source

21 For a detailed technical discussion of each of these t echnologies, please refer to the TDD; the information below provides EPA’s response to commenter’s suggestions regarding the use of these technologies.

Essay 18 172cooling waterbody is significantly colder. Given the relatively low volume of annual intake flow reduction (at the most 15 percent fo r load following plants, and closer to zero for base load facilities), EPA did not consid er VSPs as a nationally available technology for reducing impingement mortality. VSP are unlikely to reduce intake flows significantly at manufacturing facilities, becau se most manufacturers are operating almost continuously. Nonetheless, a facility that uses VSP may obtain credit for such flow reductions. A facility would do this by demonstr ating the flow reductions obtained by the use of a VSP and then applying this credit to wards part or all of its total required IM reduction under the “system of technologies” approach at § 125.94(c)(6). One commenter noted that such reductions must be reflective of actual operating conditions. EPA agrees and the final rule requires two years of flow data to assist the Di rector in making this determination. With respect to entrainmen t, the same range of reductions may be expected, and the same reasons the technology is not available still apply. Note that flow reductions in general would still be c onsidered for entrainment reduction where appropriate at some facilities; see § 122.21(r)(10)(ii).

 Seasonal flow reductions: Seasonal flow reductions can significantly reduce impingement and entrainment impacts if the peak seas on(s) for impingement and entrainment is avoided. Note the peak season for impingeme nt is not necessarily the same as for entrainment. However, seasonal reductions ma y not be as effective in waterbodies where the peak season is of a long duration (e .g., many estuaries have spawning periods throughout the year; see DCN 10-67 02) or the facility’s period of peak electricity demand coincides with critical biological periods (such as mid to late summer). Seasonal reductions are not widely used, but a fac ility may demonstrate the flow reductions obtained and apply this reducti on as credit towards meeting the IM performance standard under the “system of technologi es” approach at § 125.94(c)(6). Riverkeeper stated that facilities should consider additional technologies dur ing peak spawning periods, including outages. EPA disagrees that a dditional technologies during peak spawning seasons should be required of all facilities. The impingeme nt mortality requirements in the final rule were developed with data from all seasons, represent an entire year of operations, and are therefore reflective of highs and lows in the rate of impingement. The Director can establish additional measures for shellfish and other species, where necessary, under § 125.94(c)(8) and (9).

For entrainment, seasonal outages are one pos sible approach in developing site-specific requirements. With respect to entrainment, th e same range of reductions may be expected as with IM, and the same reasons the techno logy is not available still apply. While not BTA at the national level, flow reductions (in general) could still be considered for entrainment reduction where appropriate at some facilities; see § 122.21(r)(10)(ii). One commenter noted that seasonal flow reductions may not be availabl e to manufacturing facilities. EPA agrees this may be the cas e for many manufacturing facilities, but notes that there are seven compliance alternatives to comply with the IM standard of the final rule. Manufacturing facilities are not required to implement seasonal outages, but such measures may be established for individual f acilities as part of the BTA entrainment determination.

Essay 18 173 Alternate sources of cooling water: Some commenters (inc luding Riverkeeper) note the value of using reclaimed water and other alternate sources and commented that EPA should include incentives for utilizing reclaimed water. Commenters also indicated that EPA has underestimated the availability of reclaimed water. EPA agrees in principle that water reuse is a desirable goal, but notes that the availability of alternate sources of cooling water is the most critical factor in determining the feasibility. Even if such sources existed in adequate quantity, and such sources provided an appropriate quality of water to be used as makeup water for cool ing, in many cases, a facility may not be located in close proximity to the source. It is not cost-effective to haul or pump water over long distances. Additionally (and as noted by some commenters), for facilities that utilize once-through cooling, an alternative source cannot cons istently provide the entire volume of cooling water required. The Vidic study cited by Riverkeeper states (first sentence of the abstract) that the analysis is based on th e premise of using reclaimed water as “makeup water in recirculating wate r systems at thermoelectric power plants.” While the Vidic analysis does suggest that some degree of reclaimed wa ter is available at many facilities, it is not a logi cal conclusion to then assume that all existing power plants can use a recirculating cooling system in assessing the viability of reclaimed water. Further, Vidic lists the availability of recl aimed water (Table 2.5) as being, on average, less than 1 percent of the tota l volume of cooling water used at existing facilities. Given the costs and challenges to construct piping be tween a POTW, for example, and a facility (as well as other hurdles), this is neither dem onstrated nor feasible for all facilities. EPA does not expect many facilities would incur thes e costs to avail themselves of reclaimed water that only comprises 1 percent of their wa ter needs. Therefore, ev en if all facilities were to retrofit to CCRS (as discussed below) , and even if all f acilities had access to reclaimed water sources, all available reclaime d water in aggregate would at best provide about 20 percent of total makeup water needs. Th is is clearly not a f easible and available approach for national requirements.

In practice, this operational measure is usually limited to facilities that employ closedcycle cooling, who then use the gray water as makeup water for the cooling system. The State of California extensively examined the use of reclaimed water in its 2008 California’s Coastal Power Plants: A lternative Cooling System Analysis (see DCN 10­ 6964) and noted the limitations to its use on a site-specific level. Overall, the use of alternative sources of cooling water is likely to have limited applicability for existing facilities. EPA does, however, encourage facilities or permitting authorities to consider utilizing reclaimed water on a site-specific basis where appropriate and notes that the practice of water reuse does offer two incentiv es. First, it may provide a facility an opportunity to drop below the criteria for in clusion in the regula ted universe of the existing facility rule (i.e., if the use of a lternative sources allows the facility to drop below 2 mgd withdrawn or 25 percent use of cooling water) and be regulated purely on a BPJ basis. Second, the facility may demonstrat e the flow reductions realized and apply this reduction towards meeting the IM st andard under the “sys tem of technologies” approach at § 125.94(c)(6). Lastly, while EPA did not promulgate any national requirements related to alternat ive sources of cooling water, facilities are required to consider alternate sources in their perm it application submittals under § 122.21(r)(10).

Essay 18 174 EPA is also aware of technol ogies that utilize subsurface water withdrawals for cooling water, such as Ranney wells and substratum intakes. (For the latter, see DCN 10-6609.) These technologies can be effective, but EPA has found that substratum intakes are demonstrated for small water withdrawals such as drinking water plants, and are not used at industrial facilities such as large power plants or large manufacturing facilities. A commenter also noted that requirements to use alternate water sources may unintentionally lead to increased groundwater withdrawals. The final rule only requires that a facility evaluate alternate sources of c ooling water; it does not require a facility to utilize groundwater. Also, see E ssay 14. As with alternate so urces of cooling water, both of these subsurface technologies are unlikely to be able to su pply the necessary volume of water for once-through facilities, limiting th eir applicability nationally. However, EPA encourages facilities to cons ider utilizing these technologies on a site-specific basis to meet applicable requirements.

 Facilities may also realize reductions in inta ke flow by retiring older units. Some industry commenters supported an approach where a f acility could claim a flow reduction credit for a closed unit, while other comments were opposed to any such credit. Some commenters suggested that credit for such cl osures should be provi ded indefinitely. EPA proposed that facilities could obtain credit towards site-speci fic entrainment requirements for unit closures for a period not to exceed 10 years. EPA proposed this time frame because it reasonably allows facilities to get cr edit for flow reductions attributable to unit closures, but also requires such facilities to make future progress to ensure its operations reflect best available technology. EPA did not receive any data supporting an alternate time frame and therefore has retained this re quirement for entrainment for the final rule. As described in the preamble to the final ru le, a facility may consider the flow reduction associated with the retirement of a unit for a limited time. EPA notes that, by setting the date for which unit requirements may be consid ered at 10 years prior to the promulgation of the final rule, facilities do not have an un limited ability to clai m flow reduction credits. This date also effectively sets a “sunset claus e” on the unit retirement credit, as facilities would not be able to utilize this credit in pe rpetuity. EPA considers this approach to be reasonable because unit retirements, while perhaps not explicitly completed for 316(b) reasons, do offer a notable reduction in impact s. EPA also did not want facilities to “close” existing units and then operate ot her units simply to obtain credit for unit closures; these reductions would not comp rise true reductions of impingent (and entrainment). In future years, unit retireme nt flow credits become less available to facilities, new units must comply with different requirements than other existing facilities, and facilities will ha ve ample time to plan for future reductions in impingement and entrainment using other approaches, as well as planning repower ing or other aspects of the facility’s operations.

Some commenters (inclu ding Riverkeeper) questioned EPA’ s rationale for correlating a reduction in flow with a proportional reduction in impingement mortality. As discussed in the proposal (see 76 FR 22198), EPA has long held that flow is direc tly related to impingement and entrainment. For example, all other things being equal, reducing intake flow volume by 50 percent would completely eliminate the impingement and entrainment for those fish and shellfish found in that volume of water no longer being withdrawn. Thus the reduced flow intake has reduced the rate of impingement and entrai nment by 50 percent for that intake. Thus,

Essay 18 175impingement m ortality and entrainment mortality would be similarly be reduced by at least 50 percent. EPA agrees that impingeme nt is subject to other factors (and stat ed such in the preamble cited above) but maintains that th e correlation is still appropriate for a national scale regulation. EPA notes the commenters did not provide any data to the contrary. However, if a facility can (in the future) demonstrate a correlation that is differe nt than what EPA has assumed, the facility can opt to comply under the “system of t echnologies” approach at § 125.94(c)(6).

With respect to entrainment, some commenter s suggest low intake velocity would reduce impacts. While reduced intake volume and reduced intake velocity is not the same thing, EPA agrees that reducing intake volume should also reduce the in take velocity. However, EPA disagrees that low intake velocity significan tly affects entrainment (see Essay 15, 16, and 17).

Exclusion and Collection Technologies EPA also received comments on a variety of excl usion and collection tec hnologies, as discussed below.

Traveling and Passiv e Screens Vertical traveling screens are the most comm on technology at cooling wate r intake structures, and comprise the base technology at about 83 percent of all CWIS (see TDD 4-19). EPA has developed impingement mortality standards in the final rule based on the performance of modified traveling screens with fish returns such as Ristroph screens, wh ich include a number of enhancements and fish protection features over st andard traveling screens such as fish buckets, improved rails, low pressure spray wash and other removal improvements, and smooth mesh screens. EPA agrees with commenters and ac knowledges that many types of screens may achieve similar performance and could also be determined to meet the impingement mortality requirements; this is why EPA did not specify a particular type of modi fied traveling screen, provided certain minimum fish pr otection feature are present; see rule definitions at § 125.92. At proposal, EPA acknowledged that some studies in the record demonstrated a traveling screen without all of the fish protection features could achieve performance equiva lent to the modified traveling screens with fish returns as define d in the proposal. In other cases, the data demonstrated traveling screens performed close t o, but generally lower th an, the performance of modified traveling screens with a fish handling a nd return system. EPA view s these studies in the record as additional support for BTA in the final rule based on modified traveling screens. In other words, if facilities can occasionally achiev e the BTA level of performance without all of the fish protection enhancements, a facility with all of the fish protection features will be able to perform at the BTA level of performance at all times. See Essay 16A for full discussion.

Riverkeeper provided informa tion on Ristroph screen perfor mance in Appendix B to its comments; EPA appreciates the information and not es that for three of the cited performance values, Riverkeeper provided cita tions to actual studies/data. As such, EPA evaluated them as part of its development of the impingement mortality performance standard for the final rule. For the other three, Riverkeeper provided no references to the studies or the underlying data so the information did not meet the data acceptance cr iteria for the development of the impingement mortality performance standard. See TDD Chap ter 11 for data acceptance criteria. Commenters also discussed several alternative screen designs (e.g., WIP screen, Geiger screen, angled screen,

Essay 18 176MultiDisc) that could be used to meet the IM standards. EPA agrees that these screen technologies can also be effective at reduci ng impingement mortality, and performance data from such designs were included, where appropr iate, in developing the final IM performance standard; see TDD Chapter 11. As discussed above, the definition of “mod ified traveling screen” in the final rule at § 125.92 specifically describes the screen elements that are needed to achieve superior performance, but has not limited “modified traveling screen” to only Ristroph type screens. Further, EPA has included a provision in the final rule for a facility to demonstrate that its intake technology can pe rform at or better than the IM BT A – modified traveling screens with a fish return. See § 125.94(c)(5) and (7). To the extent new and innovative screen technologies come along, these provisions allo w a facility to demonstrate BT A level of performance without having to comply with the seventh IM complian ce alternative that invol ves continuous biological monitoring.

Several commenters stated that EPA was, in eff ect, requiring Ristroph screens at all facilities. EPA disagrees. The proposed rule at § 125.94(b) would have required compliance with a monthly and annual performance standard base d on the performance of modified traveling screens, but did not require installation of the technology. Similarly, th e final rule does not require facilities to install modified traveling screens or any other specific technology; the BTA impingement mortality standards are simply base d on the performance of that technology. (Refer to Essay 16.) That said, EPA rec ognizes that on a site-specific basi s, these screens may not be the most effective or least costly technology; therefore, in devel oping compliance costs for the final rule, EPA used a cost tool to assign a variety of technologies to mode l facilities, where the technology performance represents one of the fina l rule IM compliance a lternatives and thus where the performance is equal or better than th at of modified traveli ng screens. (Refer to Essay 21.)

Other commenters noted site-spe cific issues that would make implementation of modified traveling screens difficult or infeasible. EPA di sagrees that difficult installation eliminates the technology as a BTA candidate. Diffi cult or challenging installations may pose additional costs, and the final rule cost analysis reflects this. 22 See Essay 21. Despite these additional costs, EPA concluded the technology is available, demonstrat ed, and achievable. As noted above, EPA is not requiring a specific compliance technology; each f acility can select one of seven compliance alternatives that will best suit the fac ility’s conditions to achieve compliance.

Some commenters noted poten tial problems with biofouling, such as zebra mussels. As stated in the Phase II response to comment docum ent (DCN 6-5049A) in response 316bEFR.027.005, EPA acknowledges that biofouling can be a problem at some intakes. However, EPA notes that some facilities have historically had issues with biofouling, even in absence of today’s rules and have already developed strategies to address it. The record show s that a variety of design and operational techniques (e.g., nickel al loy screens, air burst systems, chemical or heat treatments, etc.) can reduce the negative e ffects of biofouling organisms. EPA has not included broadly applicable incremental costs to address biofouling that would result from today’s final rule, as many facilities are already addressing the issue an d incurring these costs. In other words, for many facilities this is not an incremental cost of this rule. However, because EPA could not

22 For example, the final rule does not require barrier nets. The costs of barrier nets were kept in the final rule analysis for marine facilities, and may be viewed as an example of additional costs a facility may incur.

Essay 18 177determine with certainty whether other facilities would experience reduced performance of their IM technologies without such controls, EPA incl uded some additional costs for model facilities located in zebra mussel-prone areas to address co sts related to additiona l O&M or for installing alloy screens. EPA finds that the additional costs of these controls is a small part of the total rule costs, and the costs did not affect the option sele ction decision or the rati onale for the final rule decision. Further, EPA did not receive any data s howing that with biofouling controls in place, the performance of the model technology is aff ected. Therefore the pote ntial for biofouling does not change EPA’s conclusion that the BTA t echnologies are availabl e, demonstrated, and achievable.

Riverkeeper supports mandatory fish returns for all intake structures. EPA ag rees in principle, as contrary to other commenters’ assertions, EPA’s r ecord shows that fish returns are an important part of the overall performance of the intake t echnology. In other words, it is not sufficient to remove any impinged fish gently from the screen . The removed fish must also be transported back to the source waterbody. For facilities choosing the complianc e alternative at § 125.94(c)(5) based on optimized operation of a modified traveli ng screen, the definition of modified traveling screen at § 125.92 includes a fish handling and return system with sufficient water flow to return the fish directly to the source water in a manner that does not promote predation or reimpingement of the fish. These features are th e same features include d in EPA’s criteria for performance data acceptance in calculating the IM performance standard. In contrast, low intake velocity or behavioral deterrent technologies help avoid impingement in the first place, and a fish handling return is neither warrant ed nor applicable. For example, Seabrook is 1.5 miles from the source water making a fish return a difficult and more costly proposition, however, the facility already has an existing offshore velocity cap a nd will likely comply per § 125.94(c)( 4). EPA has found the offshore velocity cap performance meets th e IM standard, and theref ore a fish return is not part of the velocity cap performance, and is therefore not necessa ry to meet this IM compliance alternative. EPA notes that some states prohibit the discharge of debris (most notably Florida), which in some cases includes fish th at are impinged and collected. This may limit some facilities’ compliance alternatives, but EPA does not find that this poses a constraint on the final rule because there are another six compliance al ternatives that do not rely on the return of impinged fish to their source water. EPA disagrees that the aquatic organisms need to be returned to the same source waterbody in all cases. For exampl e, return to a tributary rather than return to the original source water may be preferable to prevent re-impingement, predation, and other concerns. Therefore, EPA expects the Director would approve the locatio n of a fish return.

Commenters’ examples of where a fish return is unfeasible are already addressed by either innovations in traveling screen technology or by the other IM co mpliance alternatives. Examples include but are not limited to: coastal facilities have already develope d fish returns that accommodate large tidal variations and address the pot ential for a fish return with a large vertical drop; inland facilities on large rive rs have already learned to deal with high debris loads and heavy sediment; facilities on the Great Lakes and in the north operate despite freezing temperatures and frazzle ice; sc reen houses are used to enclos e traveling screen bays for protection from extreme weather conditions; Texas f acilities adjust operations to handle large seagrass loadings; facilities with intakes on a sh ipping canal already handle large trash loads and navigational traffic constr aints; facilities subject to debris loads following a major rainfall event have management practices in place to ensure continued operations of their plant; et. al. The comments rejecting technology feasib ility based on local challenges pos ed to a given facility did

Essay 18 178not indicate in their comments that any consid eration was given to these solutions already developed by their peers. In shor t, every viable manufacturing fac ility has adapted to ensure an available supply of cooling water, and further ev ery power plant has taken the measure necessary to ensure condenser pipes remain open and free so that the plant can functi on. Facilities that fail to make these adjustments are not able to offe r reliable power, steam, or manufactured products. EPA encourages technology transfer and sharing of information be tween facilities, so that all facilities can establish the most cost -effective compliance path available.

EPA, through its site visits and other data colle ction, has observed a number of intakes with fish returns that are poorly designed or discharge impi nged organisms into a trash bin; an inadequate fish return can negate any benef its that a well-designed and well -operated screen may offer. EPA appreciates the submittal of technical studies on th e effectiveness of fish return systems. EPA acknowledges that some facilitie s will face greater cha llenges when installing a fish return (as discussed in several comments; e.g., very long retu rn distances, debris loading, infrastructure constraints). EPA has accounted for this commen t through revised complian ce cost estimates for fish returns and O&M for traveli ng screens. (See the TDD and E ssay 21.) EPA also notes that a proper fish return system is not required under the other IM six compliance alternatives; for example, under § 125.94(c)(1), a facility employing a closed-cycle recirc ulating system will comply with the impingement mortality requirement s without adding a fish return system, as will the 0.5 fps intake velocity because, as discusse d above, it prevents impingement in the first place. Lastly, while EPA has eliminated any specific requirements regarding entrapment (see below), any organism that is en trapped (e.g., unable to return to the source waterbody due to a poor fish return system) must be counted as a mo rtality in determining co mpliance with the rule under the seventh compliance altern ative (i.e., biological monitori ng for compliance with the IM performance standard).

Barrier Nets In the proposed rule, EP A required performa nce e quivalent to barrier nets as a technology to minimize the impingement of shellfish at estuarin e and marine intakes. Commenters stated that this requirement was not technically feasible fo r a variety of reasons (e .g., tidal action, vessel traffic, biofouling, etc.), as well as noting that EPA did not define the term shellfish. Other commenters (including Riverkeeper ) stated that shellfish mer it protection. EPA proposed this requirement because it did not have adequate data on the performance of the BTA technology (modified traveling screens) with respect to sh ellfish. EPA has removed this requirement from the final rule because EPA’s revised performance data used to develop today’s final rule IM performance standard includes data that incorporate shellfish surviv al as part of the impingement standard. To the extent entrapment of shellf ish poses additional conc ern, the Director may establish additional measures, such as seasonal deployment of barrier nets, under § 125.94(c)(8).

Aquatic Filter Barriers or AFB An AFB (sometim es sold under the trade name G underboom) operates similarly to a barrier net, but typically has a much smaller mesh. More re cent versions of the technology are no longer a mesh, but rather are comprised of a smooth wove n fabric. EPA has studied this technology and acknowledges that it can be highly effective for imp ingement at some facilities, and further may be used to reduce entrainment. EPA agrees with commenters that it can be very costly to

Essay 18 179maintain and faces a number of logistical chal lenges in installation and implementation at some locations. Data provided by other commenters shows that recent improvements help mitigate previous issues with the technology (such as wave action and tidal influences on the AFB tiedowns and posts), and this may result in more frequent application of the technology. The technology is not feasible where na vigational traffic is a concern, as the AFB is installed as an offshore barrier to the intake structure. Furthe rmore, where EPA has data on AFBs, it is limited and primarily for small flow intakes only. As a re sult of the data and application limitations, EPA finds this technology is not demonstrated nor is it available nationally. For these reasons, EPA concludes the technology is not BTA. As a result, EPA did not include this technology in its compliance cost estimates (i.e., it was not assigned to any model facilities) nor did it include an IM compliance alternative specific to AFBs. EPA notes, however, that a facility may consider utilizing this technologie s on a site-specific basis for entrainm ent and where appropriate to meet IM requirements under § 125.94(c)(6) or (7).

Cylindrical Wedgewire Screens EPA has long recognized the performance of we dgewire screens on impingement. (See, e.g., 69 FR 41591, where EPA designated wedgewire scre ens meeting certain criteria including a low intake velocity as pre-approved for the now -withdrawn Phase II rule.) Consistent with commenters’ assertions and s upporting performance data, EPA agrees that wedgewire screens are an effective technology for reducing impinge ment (and therefore impingement mortality) at some facilities. However, EPA disagrees that we dgewire screens should be separately considered as a pre-approved technology. As noted in the preamble, a properly designed wedgewire screen will typically have a design intake velocity of 0.5 fps and would therefore already meet the impingement compliance alternative at § 125.94(c)(2). EPA does not have data supporting BTA level of performance for a cylindrical wedgewire screen operating at a significantly higher velocity. Therefore EPA has no ev identiary basis that would suppor t the inclusion of wedgewire screens as a pre-approved compliance technolog y. Wedgewire screens may also be used to reduce entrainment, provided the screen uses fine mesh as discussed further below.

Fine Mesh Screens EPA has evaluated the use of fine me sh screens (both fine mesh traveling screens and fine mesh wedgewire screens) and is aware of their effectiv eness at reducing entrainment of some fish and shellfish, but did not develop national BTA re quirements based on this technology. In response to the commenter stating that EPA had equated th e performance of fine mesh traveling screens with fine mesh wedgewire screens, EPA’s intent in discussing the two technologies jointly was to raise the issue of screen me sh size and the possibility that previously entrained organisms could then instead be impinged. As alluded to in EPA’s title of the referenced section in the proposed rule preamble (“Entrainment Exclusi on Versus Entrainment Survival,” 76 FR 22185), EPA specifically recognized that the two technologies operate diffe rently and some studies have shown modest performance levels of fine mesh wedgewire screens on exclusion of some organisms. However, more comm only EPA found that smaller or ganisms were simply impinged on the fine mesh rather than being entrained by the intake st ructure (also called “converts”). Upon review of the survival of these smalle r organisms post-impingement, EPA concludes the overall survival was low; see TDD for more discussion. To avoid confusion, EPA proposed a framework whereby fine mesh screens could be used for the impingement mortality standard by

Essay 18 180allowing facilitie s with fine mesh to use a theore tical “3/8-inch sieve.” Th is regulatory provision has been adopted in the final rule, and avoids pen alizing a facility usi ng fine mesh for their increased impingement of the smaller organisms that would otherwise have been entrained. In other words, since course mesh and fine mesh screens would have the sa me protective effect on impinged organisms larger than the 3/8-inch sieve, a facility could use the technology to meet the IM performance standard. The f acility can then study the site-s pecific performance for smaller organisms as part of the Entrainment Character ization Study. Refer to the preamble and TDD for more information, including a discussion of how fine mesh screens impinge organisms that would otherwise be entrained.

The record shows that fine mesh screens gene rally must be smaller than 1.0-mm mesh to be effective at reducing entrainment of larvae, and that the screens must be 0.5-mm mesh to reduce entrainment of eggs. More importantly, EPA fo und that the survival of impinged organisms smaller than the 3/8-inch mesh size to be poor; un like larger and more matu re life stages of fish, larvae and similar early life stages have little avoidance response, undevel oped skeletal structure, and a general lack of mobility. Eggs have no mo bility and no avoidance response. Thus while fine mesh screens may reduce entrainment, the m ean value of entrainment survival is 12 percent; see TDD. In addition to the generally poor perfor mance of fine mesh on entrainment, the smaller mesh reduces open area for water flow, thus retr ofit to fine mesh requires an expanded number of screens to maintain the same amount of cooling water flow . This results in at least a doubling in size of the intake structure. This is not feasible for intakes with limited shoreline space, or intakes with navigational issu es; see TDD for further discussion. Thus for national BTA for entrainment, EPA rejects fine mesh screens as either available or dem onstrated. The Director may establish requirements for entrainment base d on fine mesh on a site-specific basis, upon consideration of the site-specifi c factors affecting performance of the technology such as intake volume, intake velocity, affected species and th e relevant life stages, and the intake location relative to shoreline. Fa cilities with AIF greater than 125 mg d would submit this information as part of their technology evaluation submitted with the permit application at § 122.21(r)(10) Comprehensive Technical Feasib ility and Cost Evaluation Study.

Avoidance/Behavioral Technologies As explained earlier, avoidance/ behavioral technologies may be helpful in reducing impingement (and impingement mortality). However, they have not been demonstrated to reduce entrainment (e.g., eggs can’t swim and these technologies larg ely work because the fish are able to swim away). Therefore, the following discussions ap ply to impingement and impingement mortality only.

Reduced Intake Velocity See Essay 17 for responses to comments on reduced intake velocity.

Velocity Cap Many commenters requested that EP A consider velocity caps as a pre-approved technology. EPA disagrees. Based on performa nce data, EPA did not find that velocity caps by themselves performed at the IM BTA level. However, EP A did find that existing velocity caps, in

Essay 18 181combination with a far offshore location, meet th e IM BTA level of performance. In the final rule, existing offshore velocity caps that meet the definition at § 125.92 would meet the impingement mortality compliance alternative in § 125.94(c)(4). See the preamble for additional information, including a more detailed discussion of why EPA is not ca tegorically approving all velocity caps as an allowed impingement morta lity compliance alternative. For velocity caps installed after the final rule, a facility could choose § 125.94(c)(6) or (7) to comply with the IM standard.

Acoustic/Behavioral There are a variety of technologies that will alter the behavior of fish and thus reduce the potential for their impingement. See TDD Chapter 6, for examples. The most common behavioral technologies incl ude sound and light diversi on technologies, however other possibilities include louvers and other intakes designed to elicit behavioral responses from fish and shellfish. Data in the record indicates th at performance of these technologies is highly variable and often must be tune d for specific species. For example, EPA is aware of a deterrent device tuned for alewife and the performance has been reported to exce ed 90 percent reduction in impingement. The same device at the same loca tion has little effect on most other species. Due to this inconsistent performance, EPA did not co nsider this class of technologies for national BTA for impingement for the final rule, but enc ourages facilities to consider utilizing these technologies on a site-specific basis to meet IM requirements. A facility may demonstrate the effectiveness of behavioral tec hnologies if it chooses the syst ems of technologies impingement mortality compliance altern ative under § 125.94(c)(6).

Porous Dike As noted by several comm enters, another technol ogy that operates on the pr inciple of exclusion is the porous dike. EPA agrees that this technol ogy can be effective at some facilities but notes that it is not widely demonstrated or available for most facilities due to the need to construct the dike into the source water. As a result, EPA di d not consider this technology for national BTA for impingement but encourages facilities to cons ider utilizing this technology on a site-specific basis to meet IM requirements where appropriate. A facility may demonstrate the effectiveness of this technology if it chooses to comply w ith the “systems of technologies” impingement mortality compliance altern ative under § 125.94(c)(6).

Entrapment In the proposed rule, EPA included requirements to minimize the impacts to fish and shellfish that are entrapped in an in take. (See 76 FR 22204.) Many indus try commenters questioned the feasibility and cost, as well as whether the issue was sufficiently common to necessitate a national requirement. Riverkeeper noted that it is important to protect entrapped fish. Further, EPA received various comments that question the costs of both monitoring and compliance for such a requirement.

After consideration of all the comments and da ta, EPA has not adopted any specific technology requirements for entrapment in the final rule. In th e final rule, facilities that elect to comply with the IM standard under § 125.94(c)(7) must incl ude entrapped organisms as mortality and facilities that comply with an IM alternative that requires an optimization study must account for

Essay 18 182all impinged fish and shellfish when conducting their 2-year performance study. To the extent entrapment of shellfish poses a concern, the Director may establis h additional measures, such as seasonal deployment of barrier nets ; see the preamble for additional details. EPA noted that it has limited data as to the prevalence of entrapment as a national problem and did not receive any new comments or information that suggests otherwise. However, to avoid a potential loophole in which fish are not impinged but are not able to escape the cooli ng water system, the standards for IM require that any organisms that are entr apped must be counted as mortalities when determining the IM survival rates for compliance. EPA disagrees with the comments that this provision is under costed as discussed below. Th erefore, the rule does provide for an accounting of entrapped organisms. More specif ic responses are discussed below.

Based on site visits and other in formation in the record, the scen arios in which entrapment was identified as most likely to occur involve screen s at a forebay where there is no fish handling and return system. If the cooling system provides no means for escape, entrapment may occur; the comments are not relevant to those intakes with access to the forebay or some other means for escape. In site visits, EPA observed this scen ario occurred with intake canals and offshore velocity caps. In the case of offshore velocity caps, a fish handling and return could involve a return flume that is sufficiently lengthy as to cause mortality and/or predation during the return. Therefore EPA agrees with comments noting the le ngthy fish return may cause feasibility issues or significant additional co sts, such as at Seabrook Station or Cook Nuclear, and may not, in fact, be effective. On the other hand, EPA visited the St. Lucie nuclear power pl ant in Florida, which employs an offshore velocity cap to withdraw water into an enclosed onshore canal system. Conceptually, this scenario could lead to entrapment. Due to concerns over impacts to endangered sea turtles that are occasionally drawn in to the canal, St. Lucie has set up a series of barrier nets in the canal and empl oys several full-time biologists to capture the turtles and return then to the ocean, thereby addressing the entrap ment issue. This example shows how entrapment was addressed on a case-by-case basis to protect specific species as needed.

Despite the potential for some degree of entrap ment with an offshore velocity cap, based on performance data EPA concludes existing offshore ve locity caps meet or exceed the performance of the IM BTA – modified traveling screens with fish return. Therefore no additional requirements or biological monitoring would be required under the IM compliance alternative in § 125.94(c)(4), and EPA disagrees that additional costs would be incurred. In response to the comment that a single organism may slip through and become entrapped, it is both unreasonable and unrealistic to assume that a single organism would result in a facility being out of compliance with the IM standards. In any event, no data was pr ovided supporting this assertion. In the case of an intake canal, EPA disagrees th at the costs of monitoring are considerable, as the final rule does not impose biological monitoring requirements in perpetuity for any of the IM compliance alternatives at § 125.94( c)(1) through (6); § 125.94(c)(7) is the onl y alternative that requires biological compliance monitoring, and that alternat ive’s costs already include monitoring. In addition, any m onitoring required for modifi ed traveling screens under § 125.94(c)(5) is already costed as part of the tw o year performance optimization study required at § 122.21(r)(6). Therefore, any entrapment woul d already be counted during the performance optimization study, submitted as part of the perm it application, and the results reviewed by the Director. As EPA expects the majority of fac ilities will comply with § 125.94(c)(1) through (5), EPA anticipates that only in limited cases woul d additional requirements be necessary. Thus the rule specifies the Director can develop additional requireme nts including monitoring at §

Essay 18 183125.96(a), or additional technology requirements for protection of shellfis h at § 125.94(c)(8) or fragile species at § 125.94(c)(9).

Nuclear Facilities Commenters stated that nuclear facilities mer it special consideration under the final rule. EPA studied this issue in the Phase II rule and coordinated with Nuclear Regulatory Commission (NRC) staff on safety concerns. The Phase II proposal states:

“Finally, EPA has coordinated with the st aff from the NRC in the development of this proposed rule to ensure that the pr oposal does not conflict with NRC safety requirements. NRC staff have reviewed the proposed 316(b) rule and did not identify any apparent conflict with nu clear plant safety. NRC licensees would continue to be obligated to meet NR C requirements for design and reliable operation of cooling systems. NRC staff recommended that EPA consider adding language which states that in cases of conflict between an EPA requirement under this proposed rule and an NRC safety requirement, the NRC safety requirement take precedence. EPA has added language to address this concern to the proposed rule.” (67 FR 17127, April 9, 2002)

Based on this information, EPA agrees to the extent that there may be safety concerns, the Director may consider alternativ e provisions. EPA also placed a document in the Phase II record that describes this coordination with NRC; see DCN 4-00016Q. EPA received similar comments about nuclear facilities in the Phase II rule and addressed them in the sa me way; refer to the Phase II response to comment document at DC N 6-5049A. To this end, EPA has included § 125.94(f) in the final rule to account for safety-r elated concerns. EPA also notes that § 125.94(f) in today’s final rule is essentia lly the same as the language from the 2004 final Phase II rule; see § 125.94(f) at 69 FR 41687 (July 9, 2004).

With respect to general operations (especially the day-to-day operations of a cooling water intake structure), EPA disagrees that nuclear facilities are substantially different than other facilities. EPA recognizes that nuclear fac ilities may still require cooling water withdrawals even when they are not generating electricity to dissipate heat from the fuel rods. EPA also recognizes that not all nuclear facilities are primar ily electric generators ; a handful of such f acilities are research units or used for other purposes. But in genera l, nuclear generating units operate in a manner very similar to fossil-fueled plants with resp ect to cooling water use. Additionally, the rule provides several compliance options the facility could select. For example, commenters question the additional risk and cost of having biologi cal staff onsite to conduc t impingement mortality sampling. A facility could select one of the se ven IM compliance options that does not require biological compliance monitoring a nd avoid these issues entirely. EPA also notes that many of the problems cited by commenters, such as the need for increased security measures, are not issues of feasibility, but rather of cost. 23 While EPA agrees this is an important consideration, cost alone is not a factor in a ssessing the technical feasibility of impingement requirements for

23 One commenter mentioned the need to potentially install grates across fish returns to ensure a secure perimeter, which may affect the survival of fish in the return trough . EPA disagrees, as most fish returns are relatively small (a foot or two in diameter at most) and any grating could be sized to permit the passage of fish unimpeded while still excluding human entry.

Essay 18 184nuclear facilities. Other comment ers noted that many nuclear faci lities have already studied impingement and entrainment as part of deve loping other documents, suggesting the need for increased security measures is an issu e that the industry has already resolved.

Commenters also questioned the timeframe for compliance for nuclear facilities. Because nuclear facilities are generally baseload facilities, and have longer ti mes between scheduled outages (such as refueling), EPA agrees that nuclear faci lities may require more time to comply with any requirements. This has been addressed at § 125.94( a) and (b), allowing the Director to establish the schedule for implementing the final rule requir ements. As a result, the final rule allows ample time for the facility and the Director to comply with any impingement or entrainment requirements. Commenters stated that nuclear facil ities should be allowed to consider the remaining useful life of a generating unit. EPA ag rees this is an appropr iate consideration for entrainment requirements, and has included cons iderations for units that are approaching retirement in § 122.21(r)(1)(ii)(F-G) and as one of the factors for the Di rector to review in establishing site-specific entrainment require ments (see § 125.98(f)(2)(iv)). EPA notes that nuclear generating units of ten are relicensed for 10 or 20 years, and that such extension of useful life should also be considered. Commenters also noted that nuclear facilities may have already studied impingement and entrainment as part of developing other documents (e.g., NEPA); EPA appreciates that some effort may have been dedi cated to this analysis, but cannot rely on these documents as the sole source of information to make a BTA determination. In some cases, for example, impingement and entrainment may be a mi nor area of focus. EPA not es that the facility can utilize any data collected or analyses completed in submitting materials under 316(b) and may, as a result, already meet some of its permit application requirements.

Riverkeeper argued that the prov ision for nuclear facilities is unwarranted, or, at a minimum, should be revised to a previous version. EPA disa grees that the provision is unwarranted; EPA is not the nuclear expert and is not in a position to fully assess nuc lear safety issues on a sitespecific basis. As noted below, EP A agrees that there may be cases where nuclear safety is not a concern, but EPA is unable to make that determ ination on a national scale. The commenter also argued that a previous version of this provisi on was superior because the revised language weakened other requirements. EPA disagrees that these changes from the proposed rule weakened the requirements for nuclear facilities. The language is generally very similar and can be relevant for either impingeme nt mortality or entrainment; th is is appropriate, given that conflicts with nuclear safety could result from requirements for either one. Additionally, the deletion of consideration of technical feasibil ity from this provision did not eliminate the Director’s authority to consider technical and cost considerat ions in determining BTA. As discussed in the preamble, cost is one factor to consider in establishing BTA and the Director will weigh cost considerations al ong with technical considerations.

Commenters also noted that the NRC must be consulted as part of establishing any new requirements for 316(b); EPA agrees in principle a nd has retained the provision at § 125.94(f) to facilitate this review. One commenter notes th at EPA has no authority over nuclear issues, particularly with respect to safety. EPA agrees and notes that the final rule does not supersede authority residing with the NRC. However, EPA maintains that the final rule’s requirements are sufficiently protective of safety concerns at nucl ear facilities (and NRC ag rees, as documented in the Phase II rule), as provided for in § 125.94(f).

Essay 18 185Several commenters noted EPA’s discussion in the proposed rule TDD regarding the cooling system at Palisades Plant. Primarily, this discussi on was intended to establish that there has, in fact, been a nuclear facil ity that has retrofitted to closed-cyc le cooling, in cont rast to numerous statements made previously by industry that su ch a retrofit has never been demonstrated. EPA refers to DCN 10-6888B in the record, titled “A pplication for Reactor Construction Permit and Operating License Amendment No 21.” This corre spondence from the facility to the Atomic Energy Commission (now the NRC) states “[a]me ndment No. 21 adds new material to sections 10 and 11 of the FSAR to describe modifications to the condenser cooling and the liquid radwaste systems that the Company plans to in stall in the future, af ter initial operation. The condenser cooling system modifi cation involves the addition of a cooling tower or towers to change the existing once-through sy stem to a system which is closed-cycle except for makeup from, and blowdown to, Lake Michigan.” A plai n reading of this document, as well as information provided in comments fr om the facility’s current owner, 24 indicates that the cooling towers were installed after the facility began operating with a once-thr ough cooling system. EPA also placed a number of documents related to Pali sades’ cooling system in the record for the Phase II rule. These documents further support Pali sades did, in fact, retrofit its cooling system. 25 EPA agrees that considerations for 316(b) do not appear to have been a direct factor. 26 EPA also agrees that there were unusual circumstances surrounding this facil ity and it appears that changes were made to the design of the cooling system in the midst of construction or in early stages of operation; there is no doubt that the retrofit at Palisades has a co mplicated history. However, the documentation continues to indicate that the cooli ng towers were installed after the facility had operated for approximately two years usi ng a once through cooling system, which does constitute a retrofit. EPA also pr ovided this documentation in the record to demonstrate that, at some nuclear facilities, it may be possible to sepa rate the cooling system related to waste heat from electricity generation from the cooling system related to maintaining system safety within the reactor. If this is the case (as it appears to ha ve been at Palisades), nuclear safety concerns may not be a significant issue in evaluating the f easibility of retrofitting to closed-cycle cooling. EPA, however, does not interpret th is instance of a retrof it to indicate that all nuclear facilities may be able to retrofit to closed -cycle cooling. As noted in the preamble, there are many factors that affect that decision.

24 See EPA-HQ-OW-2008-0667-2347-A2, summarizing the Ph ase II proposed rule TDD; “The facility began operating in early 1972 utilizing on a temporary basis a once-through cooling system. The main portions of the tower system were constructed in 1972 and 1973, while the plant operated in a once-through mode. After a tenmonth outage, the conversion to a closed-cycle recirculating system occurred in May 1974, when the cooling towers became operational.”
25 See DCN 4-2502, which states “Mr. Gulvas [an employee of Consumer Energy] also stat ed that he knew of no other facility that had gone through a retrofit like the Palisades facility.” This document also referred to “the historic conversion of the plant’s cooling system from once-through to recirculating with cooling towers.” DCN 4-2529, written by Mr. Gulvas, also refer to “the conversion of th e once-through cooling system to cooling towers.” See also DCN 4-2530 for similar discussion.
26 DCN 4-2529 from the Phase II rule in dicates that radwaste and thermal disc harges were the primary concern of the citizen organizations that petitioned for the retrofit.

Essay 18 186

### Essay 19: Regulatory Options

Introduction EPA identified 4 options considered at proposal:

Option 1 : Impingement mortality (IM) controls 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 de termination 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 controls based on m odified 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 controls based on modified traveling screens, for all facilities with flow greater than 2 mgd.

Option 4 : Impingement mortality (IM) controls based on modified traveling screens for all facilities with flow greater than 50 mgd, closed-cyc le 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.

General Response As described in the preamble to the final rule , EPA adopted a modified version of Option 1 for the final rule. EPA has developed a final rule that establishes “bes t technology available” standards for cooling water inta ke structures that minimize adverse environmental impacts. Specifically, the final rule establishes BTA standards for reducing impingement mortality and entrainment, the adverse environment impacts th at EPA identified as as sociated with cooling water intake structures. First, for existing power generating faci lities and existing manufacturing and industrial facilities that with draw more than 2 mgd per day from waters of the U.S., at least 25 percent of which is used exclusively for cooling water, the rule establishes a BTA impingement mortality performance standard based on the performance of modified traveling screens with fish returns (often referred to in this essay simply as modified traveling screens) and that provides seven different alternatives for co mplying with the standards. Second, for existing facilities, the rule establishes a BTA standard fo r entrainment that requires the determination of required entrainment reduction measures in a st ructured site-specific permitting proceeding. The BTA standard for entrainment requires that certain prescribed factors must be considered in the decision and must reflect the maximum reduction in entrainment warranted after consideration of relevant factors. In addition to the above provisions, which apply to existing CWIS units at existing facilities, the rule establishes a BTA standard, for both impingement and entrainment, for new units at existing facilities. Under this st andard, new units at existing facilities will be subject to requirements similar to the section 316(b ) requirements for new facilities subject to the previously promulgated Phase I rule. This essay discusses the requirements for existing facilities only. See Essay 20 for a discussion of the new unit provisions.

Essay 19 187As described in Section VI of the preamble, EP A examined the full range of technologies that reduce impingement mortality or entrainment or both. 27 After considering a full range of factors (see Essay 10 and Section VI of the final rule preamble), EPA has concl uded that it should base the impingement mortality standard for existing units on the performance of modified traveling screens because modified traveling water screens 28 are the “best tec hnology available” for minimizing impingement mortality. While EPA iden tified a number of tec hnologies that perform as well or even better than tr aveling screens, these technologie s are either not feasible or available on a nationwide basis and thus are not the “best technology available” for standard setting purposes. See Section VI of the final ru le preamble. Moreover, the impingement mortality standards for existing units provides a number of compliance alte rnatives that include these other equally effective or better perf orming technologies that while not available nationally, may be available for some sites. See Section VI of the final rule preamble. EPA based the BTA impingement mortality standard for existing units on the performance of traveling screens because EPA concluded that this technology is eff ective, widely available, feasible, and does not lead to unacceptable non-water quality impacts.

As explained in Section VI of the preamble, EPA has not identified a technology or combinations of technologies that EPA concl uded is “best technology available” for minimizing entrainment at existing units. EPA did not identify a technology for reducing entrainment that is effective, widely available, feasible, and doe s not lead to unaccepta ble non-water quality impacts. As such, EPA is unable to identify a nationally applicable BTA technology on which to base the BTA entrainment standard.

While EPA concluded that flow reduction comme nsurate with a closed -cycle recirculating system such as a cooling tower reduces entrainm ent (and impingement mortality) to the greatest extent and is a most effective performing t echnology, after careful consideration of multiple factors, EPA concluded that clos ed-cycle is not the “best tec hnology available” for existing units within the meaning of the statute. It is not the best technology available on a national basis for minimizing adverse environmental impact and s hould not form the sole basis for the BTA standard for entrainment. For the final rule, EPA has identified three factors as significant in its decision to reject closed-cycle cooling as th e technology basis for a national BTA entrainment standard. The three factors that collectively suppo rt rejecting closed-cycle cooling systems as a widely applicable BTA for existing facilities (e xcept new units) are land availability, increased air emissions, and remaining useful life. The r ecord shows that though closed-cycle cooling is effective and a high performing technology, it is ne ither widely available nor feasible, and has unacceptable non-water quality impacts in some instances. While EPA cannot identify with precision the extent of these limitations on inst alling closed-cycle cooling systems nationwide, the record indicates that the circumstances are neither isolated nor insignificant. EPA also considered other forms of flow reduction includi ng variable speed driv es and seasonal outages. EPA found that these were not avai lable and not BTA; see Essay 18.

EPA also determined that there were no othe r “available” technologies for entrainment whose performance came close to that of closed-cycle recirculating systems. For example, fine mesh

27 Some technologies only reduce impingement (or IM), and have no effect on entrainment. Therefore EPA considered each technology’s performa nce for IM and entrainment separately.
28 Defined at 40 CFR 125.92 to include any traveling screen s with the same fish-friendl y and protective features as modified traveling screens with fish-friendly fish returns.

Essay 19 188screens reduce entrainment mortality by only 12 percent on average. See Essay 18 for further discussion. See the TDD for EPA’s analysis show ing that there are no intermediate performing technologies for entrainment.

Further, while reduced intake velocity was a ve ry effective control for impingement mortality and may also reduce entrainment of some life stages of fish and shellfish, it does not significantly reduce entrainment of eggs and non-mo tile stages of larvae. As discussed in the preamble, in almost all cases entrainment results in 100 percent mortality. However, even if reduced intake velocity was e ffective for entrainment, EPA ha s already rejected the technology for consideration as BTA because it is not physica lly available in many locations. See Section VI of the preamble and Essay 17.

Because EPA did not identify any single technology or group of technology controls as the basis for establishing the national performance standa rd for entrainment for existing units, EPA’s national BTA entrainment standard for existing un its puts in place a framework for establishing entrainment requirements on a site-specific basis. The framework specifies factors that must be considered in the Director’s determination of the BTA controls.

Factors for Supporting Site

‐ Specific Entrainment and Rejecting a Uniform Standard Based On Closed

‐ Cycle Cooling Riverkeeper commented that EPA illegally uses the four factors to justify site-specific entrainment standards. The statutory directive re quiring facilities to adopt the best technology cannot be construed to permit a facility to take measures that produce sec ond-best results. In the view of Riverkeeper, EPA itself proposes easy solutions to the problems and none of these reasons provides enough grounds for instituti ng site-specific BTAs industry-wide. EPA disagrees. For the reasons explained above and in preamble Section VI, EPA has determined that the most effective technology, closed-cycle cooli ng, is not sufficiently available to provide the technology basis for the national BTA entrainment st andard. More specifically, for the final rule, after a full consideration of all factors, EPA determined three factors that co llectively support rejecting closed-cycle cooling systems as a uniformly applicable BTA for existing facilities (except new units) are land availability, increased air emissions and remaining useful life. The commenter discusses and dismisses each factor individually, but does not consider them in aggregate. While EPA cannot identify with precis ion the extent of these limitations on installing closed-cycle cooling systems nationwide, the reco rd indicates that the ci rcumstances are neither isolated nor insignificant. Each of these and th e comments received are discussed in more detail below. In establishing a national standard that requires determin ation by the Director on a sitespecific basis of required entrainment controls in a structured proceedi ng requiring consideration of identified elements, EPA also has not ruled out closed-cycle cooling as an appropriate BTA control measure for individual s ites. Rather, EPA would expect that, where appropriate, the Director will determine that closed-cycle coo ling is the required control for entrainment under the BTA standard. See preamble Section VI and Essa y 10 for a discussion as to why an informed decision resulting in a site-specific determination by the Director is an ap propriate approach in absence of an identified national BTA.

Commenters indicated that it w ould be arbitrary and capricious for the EPA to force an existing facility to completely redesign its facility by inst alling closed-cycle cooling. EPA first notes that

Essay 19 189retrofit to closed-cycle does not require a facili ty to completely redesign; see Phase I and Phase II discussions of facilities that have already comp leted a retrofit to closed-cycle. The retrofit to closed-cycle has been incorporated at both pow er plants and manufact uring facilities. Some manufacturers have even retrofi tted dry cooling on certain unit pr ocesses within the facility; see site visits in the record for more examples. The rule requires as part of the 40 CFR 122.21(r)(10) Comprehensive Technical Feasib ility and Cost Evaluation Study a description and discussion of closed-cycle cooling, fine mesh screens, water reuse, and alternate sour ces of cooling water. Each of the three factors that support EPA’s determination th at closed-cycle is not BTA nationally must also be evaluated. Therefore, EP A disagrees that the site-specific requirements for entrainment reduction, which may include cl osed-cycle cooling if determined to be appropriate by the Director, will be arbitrary or capricious since the Director will carefully consider all issues raised by the faci lity in the permit application documents.

Land Availability EPA received a number of comments concerning the use of land availability as a factor for rejecting a uniform standard based on closed -cycle cooling. Some disagreed with EPA’s proposal analyses saying that EP A cited 25 percent as not having sufficient land but then stating that some of those 25 percent would likely find a way around the land availability issue. According to them, that leaves a small percentage of facilities that would be unable to retrofit to cooling towers because of limited space. They al so note that EPA based this decision on an inline tower design and that EPA did not consider a back-to-back c onfiguration that would require only 17 percent of the space required for two side-by-side in-line towers. Riverkeeper commented that allowing potential space-constraint considerations at some sites to justify a caseby-case approach for all facilitie s, as EPA has done in the Pro posed Rule, is arbitrary and capricious and that even if ther e are arguable site constraints, the use of eminent domain for matters relating to power transmission and genera tion (as well as a variety of other public goods and services) is well-established and shoul d not be ruled out in this context.

EPA reviewed the record for the final rule and no tes that there is little detailed data available regarding availability of land on a national basis. First, EPA has reviewed all of its site visit reports including an evaluation of the size of each site. EPA agrees that in some circumstances, some facilities with a small parcel of land c ould still install closed-c ycle cooling by using creative engineering solutions. On the other hand, EPA found that some facilities even large sites could not feasibly install coo ling towers because of local z oning requirements or other local concerns. Second, EPRI submitted results of a su rvey that asked “Does your facility have contiguous open space on your property or adjacen t ‘offsite’ open space that can be used to support cooling tower construction?” Twenty-three pe rcent of facilities responded definitely that they did not. (DCN 10-6927). Sim ilar to the facilities where EPA conducted site visits, EPA expects that some of these fac ilities may be able to instal l cooling towers using creative engineering solutions. However, EPA does not have the information or the capability to assess these situations. Third, further review has show n that setback distances to mitigate noise and plume abatement (based on GPS mapping of reside ntial areas) act as an additional constraint on land available for retrofitting to closed-cycle. Fi nally, EPA also recognizes that some facilities may be able to purchase new land, but is aware that in space constrained areas such as urban areas, such land may not be readily available, and/or costs may be pr ohibitive. Consequently, EPA estimates that as many 25 percent or more of facilities might have one or more constraints

Essay 19 190on land availability that would limit retrofit of c ooling towers for the entire facility. EPA lacks adequate support to indicate that land constraint s can be accommodated at existing facilities, and commenters did not provide supplementa l data to support the alternative.

Regarding back-to-back cooling towers, EPA agrees that back-t o-back cooling towers use less space, but disagrees this tower configuration is demonstrated as availa ble for locations that require plume abatement. EPA estimates abat ement would be required at approximately 25 percent of closed-cycle systems, and commenter s have not provided any data to the contrary. EPA notes that requirements for plume abatement tend to occur at facilities with small buffer areas that are also located in close proximity to roadways and housing/urban development. Facilities in these locatio ns also tend to be much more likely to be subject to space constraints. Thus, a back-to-back tower design may not be wi dely available to many facilities with space constraints.

With respect to the comment about eminent domai n, to the extent that eminent domain is a legally available option to acquire land to retrofit to cooling towers, it may not, in fact, be an option because of public opinion or other constraints. For exampl e, the power station may be located in a populous area. Environmental Justi ce (EJ) or other public opinion issues may constrain further expansion. In any event, EPA ca nnot assume the broad availability of eminent domain as a cure-all for ge ographical or land limitations.

Finally, EPA disagrees that allowi ng potential space-constraint cons iderations at some sites to justify a case-by-case approach for all facilities is arbitrary and capricious . First, EPA notes that it rejected cooling towers on the basis of three factors combined. For a response to the comment about EPA’s selection of a site-specific BTA st andard, see Section VII of the preamble and Essay 10.

One commenter stated that refusal to set cooling to wers as BTA because of a desire to save room for new units is unacceptable noting that land need ed for the retrofit would later be required for a new unit when new units are already required to s eek viable alternate s ites. While EPA did use land availability as a consideration in its decisi on to establish entrainmen t requirements on a sitespecific basis, EPA’s discussion of the potenti al competing land require ments for exiting unit cooling towers and new units was only describe d to highlight the poten tial tradeoffs involved. Saving land for possible future new units wa s not a consideration in this decision.

Other commenters agreed with EPA that land ava ilability was a limiting factor at many facilities stating numerous concerns such as the need to locate towers a sufficient distance from equipment that would be damaged by drift or ice formati on; local zoning requirements; the potential for tower foundations to interfere with groundwater movement away from infiltration ponds that treat wastewater from the facili ty; and location of avai lable land in relation to the location of process units that require cooli ng water. While EPA did not specifi cally cite such concerns, EPA agrees that such considerations may affect the availability and costs of a closed-cycle cooling systems and expects that, dependi ng on site-specific conditions, th ese concerns may be some of the many issues that will be taken into consider ation by the Director in determining site-specific entrainment requirements.

Essay 19 191Commenters argued that require ments to purchase land to accommodate entrainment control technologies is unlawful and ina ppropriate and cited a legal precedent They state that the Clean Water Act does not authorize EPA, or the States, to require enlarging a site and that EPA should eliminate any suggestion that facilities examine the availability and feasibility of purchasing additional land. EPA notes that the final rule doe s not establish a requirement based on cooling towers. Furthermore, the final rule does not requ ire a facility to purchase adjacent land nor is there an implied requirement to demonstrate infeasibility. The final rule preamble language has been revised to state that the Director must provide a discussion explaining how issues concerning land availability, insofar as they relate to the feasibility of adoption of an entrainment technology, were addressed in the site-specific determination. For example, a discussion of land availability might include an evaluation of adj acent land, and acres poten tially available because of generating unit retirements, production unit retirements, ot her buildings and equipment retirements, ponds, coal piles, rail yards, tran smission yards, and parking lots; decommissioning of existing units; repurposing of existing land uses; documentation that insufficient acres are available on-site; and evidence of the feasibility of the purchase or other acquisition of property adjacent to the facility. In particular, EPA is aware of corporate level ownership of multiple adjacent parcels of land, and it is appropriate for these parcels to be considered. Issues regarding the feasibility and legality of re quiring the purchase of adjacent land can be determined on a sitespecific basis.

Increased Air Emissions Could Be a Factor on a Local Basis Many commenters agreed with EPA’s assessment regarding the potential for increased air emissions associated with closed-cycle cool ing. In particular, ther e was concern that PM 2.5 which is generated by drift from the cooling towers themselves may cause permitting problems. They note that air permits may need to be reopened an d that the ability to obtain new permits is uncertain. EPA agrees that this may be a problem in a number of locations and has considered increased air emissions as a significant factor supporting the decision to require site-specific determination of entrainment requirements.

Riverkeeper commented that air emissions woul d not increase as a result of closed-cycle requirements because the recent air emission regula tions and the trend in the power industry of switching away from coal to na tural gas have resulted in a do wnward trend in air emissions nationwide. They also note that replacement pow er may come from cleaner sources and that some facilities may choose to repower using le ss polluting fuels and tech nologies. They suggest that the result of these factors will be that closed -cycle cooling may simply result in a slightly less dramatic decrease in emissions. EPA disagr ees. Retrofitting closed-cycle cooling (without also repowering) would result in increased air emissions of various pollutants, including particulates, sulfur dioxide, nitrogen oxides, mercury, and greenhouse gases, among others. 29 As a result of installing closed-cycle cooling structures, fossil-fueled facilities would need to burn additional fuel, the reby emitting additional PM, CO 2 , SO 2 , NO X , and Hg. Two factors are responsible: (1) the need to compensate for energy requi red for operating cooling towers, and

29 EPA 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 be required to under other rules) install such technologies anyway, with out converting to closed-cycle cooling. Comparing closedcycle cooling to once-through cooling with all other technologies held constant, there is an energy penalty for the auxiliary power consumption that would lead to greater air emissions.

Essay 19 192(2) slightly lower generating efficiency attrib uted to higher turbine backpressure when the condenser is not replaced with one optimized for closed-cycle operation when retrofitting existing units (also referred to as the energy pena lty). While both of these contribute to increased air emissions, the larger contri butor by far to projected increase d air emissions results from the energy penalty.

The impact of the increased emissions varies acc ording to the local circumstances. The increased emissions could consist of stack emissions from increased fuel usage, cooling tower emissions, and plumes of water vapor. EPA’s analysis sugg ested that the most significant impacts would be increased PM 2.5 emissions, which are associated with an increase in human health effects. EPA notes that cooling plume abatement and drift el imination technologies exist to address cooling tower emissions. EPA has included costs for su ch technologies in its analysis of Proposal Options 2 and 3. Since EPA did not reject closed-c ycle on the basis of cost , the added expense of these additional control measures was not a ba sis for rejecting closed-cycle. Further, EPA expects most effects of the particulates from cooling tower emissions would be limited to the immediate vicinity, confined wholly to the facility property. (See DCN 10-6954.) Therefore, EPA’s primary concern here is increased air emi ssions associated with additional fuel usage due to the so-called energy penalty when retrofitting to cooling towers. EPA’s review of emissions data from E-GRID (year 2005) suggests that imp acts from these pollutant discharges could be significant. These potentially include the human health and welfare and global climate change effects – all associated with a variety of pollutants that are em itted from fossil fuel combustion. EPA is not able to quantify the frequency with which facilities could experience these local impacts, and therefore has concluded that the prop er forum to address such local impacts fully is in a site-specific setting.

One commenter (2181.016) stated that EPA failed to fully evaluate the air emission impacts of requiring closed-cycle cooling for new units. Since new units have not been designed or constructed yet, EPA has no way of reasonably estimating the net difference in air emissions that would occur as a result of new unit requirements. Ho wever, in the Phase I rule for new facilities, EPA found such impacts for newly constructed faci lities were acceptable. The new facility will produce additional emissions, and the additional emissions for closed-cycle are a very small portion of total emissions. EPA further concludes that since there are far fewer emissions from new units compared to emissions from new facilities, primarily because there is no energy penalty associated with new un its because the condenser can be selected to compensate for higher turbine backpressure, that any such incremental air emissions impacts would be acceptable. As described in the Basis for the Fi nal Regulation section of the preamble, EPA has concluded that the new unit requirements will not pose an unacceptable air emissions impact. See Essay 20 for further discussion of new units.

Remaining Useful Plant Life Could Be a Factor on a Facility Basis EPA received several comments regarding considerati on of useful plant life as a factor in the availability of certain technologi es for controlling entrainment at a particular facility. Some agreed with EPA that significant investment in closed-cycle cooling for short-lived units is not economical. Most expressed a desire that EPA es tablish some sort of defined exemption from BTA requirements for units that are planned for re tirement or a requirement for a clear trigger for automatic reopening of permits if an exempt unit planned for retirement should pursue an

Essay 19 193extension of unit life. Those requesting exempti ons for future retirements gave examples of where an existing facility has formally committed, or will formally commit, via a legally binding instrument to retire within a sp ecified time (e.g., 5 or 10 years) of the effective date of the final rule or would occur prior to the proposed eight-year compliance deadline. Commenters also stated that EPA should remove study and complian ce requirements for planned early retirements or closures.

Remaining useful life is perhaps the most difficult parameter to evaluate on a national basis for several reasons. EIA and EEI analys es show that uncertainty in fu el prices and profitability of certain fuel types could result in different sets of facilities likely to cl ose. Further, while the facility age may be used as an indicator of remaining useful life (see TDD Chapter 4), other factors make the facility age ir relevant, such as: license exte nsions at nuclear facilities; repowering at fossil-fuel power pl ants; replacing existing units seque ntially at a facility; addition of newer more efficient units; replacement of existing product lines; addition of new product lines; and other construction and upg rade projects. For example, seve ral nuclear facilities that are several decades old have completed Type III uprates and obtained relicensing for another 20 years; oil-fired power plants have repowered to NGCC; a coal facil ity that is more than 50 years old recently replaced the boiler and condenser to improve efficien cy, and will likely operate for
many years.
EPA agrees that it does not make sense to spen d considerable time and resources on technologies that may only be used for a few years or less . However, EPA concluded that the 316(b) BTA standards should not build in an unintended incenti ve for facilities to dela y closure because they may obtain an exemption based on planned retireme nt. Considering the long lead time to plan, design, and construct the most effective entrainment technology, closed-cycle cooling systems such as wet cooling towers, EPA determined th at the Director should have the latitude to consider the remaining useful plant life in es tablishing entrainment requirements for a facility. The remaining useful plant life, along with ot her site-specific inform ation, will affect the entrainment reduction of closed-cycle cooling at a facility. For example, re trofitting to a closedcycle system at a facility that is scheduled to close in three years will not result in much entrainment reduction as compared to retrofitting to closed-cycle at a facility that will continue to operate for 20 years.

Riverkeeper stated that industry ha s historically argued th at facilities with little remaining useful life should be exempt from regulation because the costs of a retrofit to su ch a facility may not justify the benefits. They commented that remain ing useful life is not quantifiable, certain, binding or relevant unless a facil ity owner has committed to a speci fic closure date and suggest a 5-year timeframe. EPA agrees that facilities requ esting exemptions related to planned retirements should commit to a specific date. EPA has included a provision in the final rule waiving certain permit application requirements for existing facilitie s that plan to retire the facility before the current permit expires. In addition, if the owner or operator of an existing facili ty plans to retire the facility after the current permit expires but within one permit cycle, then the Director may waive many of the permit study requirements pendi ng a signed certification statement from the owner or operator of the facility specifying the last ope rating date of the faci lity. EPA notes that the entrainment requirements are established on a site-specific basis by the discretion of the Director who would take the issue of planned retirements into consideration and should be capable of assessing the ve racity of such claims.

Essay 19 194Part of EPA’s rationale for reduced requirements where a facility has little remaining useful life is the timeline in which full compliance will be ac hieved by facilities subject to this rule. Full studies and analysis as part of the initial permit application, including IM requirements and Entrainment Characterization Study, are expected to take approxima tely 3 years to complete, and will generally take 2 years to complete in subsequent permit applications. Since permits are generally issued on 5-year cycles, in any given year some 20 percent of faci lities are expected to apply for a permit. In the example when a permit application is made imme diately after the final rule effective date, where required data is collec ted as soon as practical, where there are minimal additional technology requirements, and where the permit is issued as soon as practical, EPA estimates it would take a minimum of 3 years to achieve full compliance. On the other extreme, where a permit application is submitted closer to 5 years after the effective date of the rule, data is collected prior to the permit application due date, 30 and significant technology upgrades are anticipated (such as closed-cycle or a relocated intake at a baselo ad power generating facility or a complex manufacturing facility), EPA expects full compliance could take longer than 14 years. See Section VIII of preamble for further discussi on of implementation. In view of the range in time that may be required for full compliance, EPA expects that full compliance with the impingement mortality and entrainment BTA require ments will, in most cases, take at least 6 years. As noted above a permit is typically issued for 5 years. In other words, after consideration of the permit application study requirements, the permit cycle, the entrainment determination by the Director, and the facility’s choice of compliance alternative for IM that harmonizes with this entrainment determination, EPA does not expect th at a permit with entrainment determinations can be fully implemented by the facility during the fi rst permit cycle (i.e., the first 5 years) after this rule’s effective date. As discussed in the preamble, for impingement requirements the compliance date is determined by the permit sc hedule and selected compliance alternative – a schedule which again is subject to some discretion by the Director in order to harmonize the IM requirements with any required entrainment contro ls. Regarding the concern that units may avoid compliance through delay of planned retirements, EPA notes that the Dire ctor has the discretion to require interim entrainment controls at 40 CFR 125.94(h).

Riverkeeper also noted that some facilities may claim that the remaining useful life (of their cooling system or compliance technology) may be t oo long in that they have not yet been able to recoup original construction costs and therefor e should be exempt from technology upgrades. They were concerned that EPA’s focus on re maining useful life would allow permitting authorities to consider too long as well as t oo short remaining useful life in determining compliance requirements. EPA would like to make it cl ear that with respect to this issue, EPA is only concerned with situations where the remaining useful life of the entire unit may be too brief to warrant a substantial expenditure for complian ce technology that would be useful for only a brief period. EPA notes the model facilities us ed for conducting the cost analysis are based on the technical questionnaire, and since the data th erein is at least 10 year s old, the technology in place reported in the technical questionnaire has also been installed for at least 10 years. Therefore, EPA disagrees that many facilities (if any at all) can reasonably claim compliance technology costs have not yet been recouped. To the extent a facility ’s existing compliance technology has been installed since the technical questionnaire, and the technology can be used

30 In this case EPA does not anticipate 3 additional years to collect data because the data gathering activities will have already been completed prior to the permit application; see 40 CFR 125.95 for the time frame for permit application requirements.

Essay 19 195to meet the final rule requirements, EPA’s co sts are overstated. To th e extent the existing compliance technology is not useable to meet the final rule requirements, because EPA’s cost methodology incorporates the full compliance costs as discussed above, EPA disagrees that the costs of the rule are incomple te. Further, EPA’s economic analysis is based on the above assumptions of compliance costs, and EPA did not find these costs to be unaffordable; see the preamble and the EA. Other concerns regarding remaining useful life apply to the production unit, not the compliance technology, and would not be a consideration in s ituations where the life of the required compliance technology itself would not be brief. In situations where units are planned to be replaced/repowered and the comp liance technology can be incorporated into the design of the replaced/repowered unit, the re maining useful life of the units to be replaced/repowered should not be a consideration in determining compliance requirements.

Energy Reliability is Not a Dispositive Factor in EPA’s Rejection of Closed

‐ Cycle Cooling as BTA In the proposed rule EPA considered energy reliabil ity as an important fact or in its decision not to prescribe a single technology as the basis for a national BT A entrainment standard and received a number of comments concerning this issue. Most commenters agreed that energy reliability should be an important considerati on. But some commented th at variances could be granted on a site-specific basi s and that EPA acknowledges that extending compliance time for power plants with potential ener gy reliability issues would li kely resolve such problems.

EPA performed a revised reliability analysis for the final rule and, consistent with the proposal, results indicated that there woul d be no significant re liability impacts associated with requiring closed-cycle cooling. EPA also observed findings from the market model analysis conducted using IPM that demonstrated that the options analyzed for the proposed rule will not have a significant adverse effect at a national or regiona l level. Because of these findings, EPA did not prepare a Statement of Energy Effects. For furt her details see the Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EPA-821-R 13-004). Based upon this evaluation EPA concluded that even for the most stringe nt option there would not be any significant reduction in reliability of the national or regi onal electricity supply. Accordingly, while EPA considered this in evaluating options for the fi nal rule, it was not a dis positive factor in its determination to reject closed-cyc le cooling as BTA. EPA notes that to the extent that facilities believe this is a relevant consideration in th e site-specific determination of BTA, they can provide such data to the Director and the Director may consider it.

Other Factors In addition to land availability, air emission, re maining useful life, and reliability discussed above, commenters cited a number of other factors that may affect the availability of closedcycle, the costs of controls or the environment. According to commenters, these factors affecting the availability of closed-cycle cooli ng in any specific se tting may include:

 A highly adverse cost to monetized benefit ratio;

 At a number of facilities insurmountable piping difficulties may be encountered;

Essay 19 196 Requirements for the redesigning and reconstruction of large po rtions of the facility, not just the intake structure;

 Loss of beneficial aspects of th e thermal effluent for m anatees;

 Increased water consumption;

 In tidal areas use of non-saline alternative makeup sources could negatively impact future ground water availability;

 Environmental impacts through the discharg e of cooling tower blowdown (treatment chemicals, concentrated pollutants);

 Increased safety hazard associated with bul k storage of treatment chemicals used for closed-cycle cooling;

 Impacts of fogging and icing;

 Human health effects from pathogens, endocrine disruptors and particulates;

 Increase in noise impacts should be considered;

 Aesthetics;

 Challenges to obtaining appropriate Federal, State, and local permits (endangered species, CWA section 404, local building height and noise);

 Saltwater drift;

 Impacts associated with building the required transmission to accommodate new generation far from load centers;

 Lost jobs at manufacturing facilities since costs cannot be passed along to customers;

 Process upgrades at manufacturing facilities such as heat exchangers to account for warmer water would be required;

 Loss of manufacturing production ca pacity due to warmer water;

 Added cost and energy requirements for upgr aded process refrigeration machines;

 Blasting mandates at nuclear facilities;

 Existing nuclear power generation, and to a le sser but still important extent, gas-fired generation, offer specific environmental benef its-to electric-system function, air quality and climate change goals-not provided by other sources of baseload power production;

 Premature or immediate facility closures;

 Extended construction -related outages and permanently reduc ed output and their effects on reliability and affordability.

These are important, but they are secondary cons iderations that do not change (nor are they dispositive with respect to) EPA’s determin ation of the BTA impingement mortality and entrainment standards and rejection of closed-cycle cooling as the sole technological basis for BTA. Because closed-cycle has already been rejected as BTA, EPA is not responding specifically to these items with regards to c onsideration of BTA and has not specifically

Essay 19 197analyzed all of these considerations in terms of costs, benefits or impacts. EPA acknowledges that some of these may require consideration on a site-specific basis and may affect costs. Many of these considerations were considered in developing the compliance costs for the options evaluated (see Chapter 6 of the TDD). Given that any requirements for closed-cycle cooling will result, if appropriate, from a site-specific determ ination by the Director, ma ny of the above listed considerations are identified in the various components of the required permit application studies. Facilities will have the opportunity to raise these issues in their permit application documents, subject to review by th e interested public, and considered by the Director in making the determination for entrainment.

Regulatory Options

Technology Basis Riverkeeper commented that a BTA determin ation does not require that a technology be available everywhere and that EPA opted for a lowest common denominator strategy - setting no uniform entrainment standard, and basing the impi ngement standard on traveling screens because they are capable of being in stalled everywhere. Riverkeepercommented that “technologyforcing” standards like BTA must compel industry to meet ever more stringent limitations and therefore must be established with reference to the best performer in a ny industrial category. One commenter stated that to be BTA for the indus tries covered, a technology must be shown to be technologically “available” to all of the faciliti es in the industry cate gory or subcategory. EPA does not agree that a technology must be available to all facilities, but agrees that is should be widely available for the industries covered. As ex plained above, EPA rejected some technologies as BTA because they are not widely available (e.g., only 15 percent of faciliti es would be able to comply with a low intake velocity compliance alternative).

EPA disagrees that CWA section 316(b) compels ever more stringent standards. More broadly, EPA does not agree that the langu age of section 316(b) identifyi ng four elements to which the standard may apply (i.e., CWIS location, desi gn, construction and capacit y), necessarily limits what factors EPA may consider in section 316 (b) decision-making. Congr ess did not express a clear and unambiguous intent that 316(b) requ irements must be expr essed only as uniform national technology-based standards. For example, in considering below threshold structures under the new facility rule (Phase I) the Sec ond Circuit upheld a case-by-case approach and stated that 316(b) “...does not compel the EP A to regulate either by one overarching regulation, or based on categories of sources ... or on a case-by-case basis...” Riverkeeper, Inc. v. USEPA

, 358 F. 3d 174, 203 (2 nd Cir. 2004). The U.S. Supreme Cour t decision further supports EPA’s discretion to consider a variet y of factors, but section 316( b) imposes no obligation on the agency to do so. Also see Essay 10 for more information.

Riverkeeper commented that EPA did not establis h a presumptive hierarchy of technologies that must be applied if available. They stated th at for the impingement mortality standard, EPA selected widely availabl e modified traveling screens as the basis for BTA even though there were more effective technologies available at many faci lities. EPA agrees that there are more effective technologies than modified trave ling screens (such as the 0.5 fps in take velocity), but disagrees that these technologies are wide ly available (for example, onl y approximately 15 percent of facilities can meet 0.5 fps intake velocity); therefore the technologies cannot form the basis for

Essay 19 198BTA. Also, see Essays 16, 17, and 18. EPA disagr ees that a presumptive hierarchy should be applied to the IM standards. EPA selected modified traveling screens as BTA for impingement because it is widely available, demonstrated, feas ible, and affordable; the record shows that more than 70 percent of facilities already have some form of traveling screens. EPA concluded that other technologies were also cap able of performing equal to or better than modified traveling screens (such as offshore velocity caps), and wh ile these technologies ar e not widely available and thus should not be considered as the technology basis for BTA (for example, offshore velocity caps are available for about 1 percent of affected facilities), the final rule recognizes such technologies as compliance alternatives.

Riverkeeper commented that EPA is compelled to establish entrainment controls based on closed-cycle and that EPA has no authority to establish impingement only controls. EPA disagrees. The 316(b) statute only requires minimization of adverse environmental impacts (AEI), not its elimination. As the Supreme Cour t has clearly recognized, Congress knows how to require elimination of a problem when it expects that result. Thus, the Clean Water Act provides, with respect to discharges, that the ultimate goal of the statute is the elimination of the discharge of pollutants and the prohibition of the discharge of toxic pollutants in toxic amounts. See section 101(a) of the Clean Water Act. Minimization n ecessarily implies choi ce of the degree of minimization required. Congress has entrusted the Agency with di scretion in this area as its decision-maker. EPA has decided that the BTA st andard for entrainment should be a structured process that, on a site-specific basis, results in entrainment controls tailored to the conditions at the site and the individual facil ity. The final rule a ppropriately addresses both impingement and entrainment AEI. The Second Circuit observed that “[t] he Clean Water Act does not forbid the EPA from addressing certain e nvironmental problems on a case-by-case basis where categorical regulation is not technol ogically feasible, or when it does not vi olate the statute’s language and is otherwise consistent with Congress’s overriding goal of improving the quality of the nation’s waters (internal citation omitte d here).” Riverkeeper, Inc. v. USEPA, 358 F. 3d at 203. For additional discussion, see Section II and Secti on VI in the final preamble and Essay 10.

Riverkeeper also commented that for entrainment there should be a rebuttable presumption that closed-cycle cooling is BTA for all facilities w ith provisions that allow the permittee to attempt to make a showing that demonstrates closed-cyc le cooling is not a viable option. As explained above, based on a combination of three factors: land availability, air emissions, and remaining useful life, EPA concluded that closed-cycle cooling was not BTA for existing facilities, and therefore did not based standa rds on closed-cycle cooling. EPA considered the approach suggested by Riverkeeper to establish standards for entrainment ba sed on closed-cycle cooling as BTA and to provide “off-ramps” for facilities that could demonstrate that closed-cycle cooling was not a viable option. For example, EPA attempted to determine criteria based on the data in its record that would enable it to define a threshold for determining land availability on a nationwide basis, but was unsuccessful. One analys is explored a threshold of approximately 160 acres per GW (gigawatt) below which a facility could not feasibly instal l cooling towers. Based on acres and the footprint of th e facility and its surroundings (p rimarily those sites for which EPA conducted site visits), EPA found such an approach did not accurately identify which facilities could feasibly install closed-cycle cooling. Commen ters stated that EPA’s assessment of 160 acres per GW for cooling towers is too s implistic and that having a specific threshold is reasonable only if it is used as a trigger for furt her evaluation and that land availability should be determined on a case-by-case basis. EPA notes th at the 160 acres per GW was simply an attempt

Essay 19 199at identifying a threshold. Recognizing the limitati ons of such a threshold, EPA decided not to incorporate this threshold in the final rule.

EPA’s decision not to establish cl osed-cycle cooling as BTA with “off ramps” is broader than its consideration of a land threshold. As explained above, after fully considering all comments and data, EPA finds closed-cycle cooling is not the “best technology av ailable for minimizing adverse environmental impact” on a national basis. Because of a combination of concerns over land availability, air emissions, a nd remaining useful life of the facility, EPA has rejected closedcycle recirculating systems as the basis fo r national impingement and/or entrainment requirements. Nor is EPA able to identify a subcategory for which these concerns no longer apply, nor did commenters suggest one. Moreover, th e complex interaction of all of these factors at individual sites does not lend itself to other re gulatory options that would require closed-cycle recirculating systems with an “off ramp” if any of the factors were shown to result in unacceptable impacts because this would create a presumption for closed-cycle cooling rather than an equal balancing of all relevant factors. EPA decided not to put its thumb on the sitespecific scale by establishing any presumptiv e BTA entrainment outcome. EPA finds the entrainment standards framework in today’s final rule will provide a consistent, more efficient, and more effective approach than standards with an “off ramp.”

With respect to one of the IM compliance alternat ives, one commenter stated that an Entrainment Characterization Study should not be required for intakes that meet the less than 0.5 fps intake velocity impingement compliance alternative. EPA disagrees since compliance with the impingement standard only ensures reduction of imp ingement mortality. Juvenile fish have lower swim speeds and smaller energy reserves and th erefore cannot escape from an intake with a velocity of 0.5 fps. Many entrainable organisms may be non-motile or slow swimmers; eggs, for example, have zero mobility and zero avoidan ce response capability, and most early life-stages of fish such as larvae have no skelet al structure and no avoidance response.

One commenter stated that EPA should have co nsidered a “no regulat ory action” option. EPA did consider a BPJ rule. EPA disagrees that no acti on is appropriate in this case because there are technologies that are available, demonstrated, feasible, and afford able for all faci lities, and EPA has found the costs of such contro ls are justified by the benefits . EPA found this rule to be necessary to minimize AEI based on the record, noting the mortality of hundreds of billions of aquatic organisms that are impinged and entrained at cooling water intake s that withdraw water from waters of the United States each year. See the preamble for further discussion of the need for this rule and for EPA’s rationale for selecting the regulatory option and rejecting others.

One commenter was concerned that the propos ed rigid IM performance standard and low velocity compliance alternative are based on a sma ll number of intakes and does not consider the wide variety of existing technology in-place. EPA disagrees that the IM performance standard and the low velocity compliance alternative in the final rule are base d on a small number of intakes. As noted above, traveling screens are alr eady installed at 70 percen t of all facilities. The 12-month IM performance standard is calculated from data for 17 facilities located in a large geographic area stretching from Ma ssachusetts to Florida and as far west as Minnesota and Nebraska. See Essay 16A. The 0.5fps velocity is ba sed on the analysis of fish burst swim speeds, and is therefore based on the thous ands of intake structures where such fish and shellfish may be located. EPA disagrees that the final IM standard is rigid and notes th at the final rule IM

Essay 19 200requirements take into consideration the wide va riety of site-specific co nditions and technologies in-place. Further, the final rule al lows facilities to choose to comply on an intake basis or facility wide basis, and further allows facilities to se lect from seven impingement mortality compliance alternatives.

Proposal Option 1 As explained above, after a careful review of the proposed options, additional data, and public comments on both the proposed rule and the tw o NODAs, EPA has opted to promulgate BTA standards for the final rule that are similar to that of Proposal Option 1. How the BTA standards vary from Proposal Option 1 and EPA’s rationale fo r selecting this option for the final rule are described in detail in Secti on VI of the final preamble.

EPA received many comments concerning the pr oposed selection of Option 1. Many supported EPA’s selection because Option 1 would not requ ire the specific flow reduction requirements based on closed-cycle cooling contained in Options 2 and 3. Others opposed Option 1 because it included specific impingement mortality re quirements including a monthly and an annual standard. Others commented that EPA has failed to demonstrate that current impingement levels are causing AEI. One commenter noted that EP A justified Option 1 largely on the qualitative benefit of protecting thre atened and endangered (T&E) species, and yet EPA admits that it is “unable to quantify effects on T& E populations from the Rule.”

EPA disagrees with the assertion that existing impingement levels are not causing AEI. First, this assertion reflects the commenters’ opinion that AEI requires a population level impact; nothing in CWA section 316(b) states this requirement. EPA further notes this issue was addressed in Riverkeeper I, where the 2 nd Circuit stated:

“We think that the EPA’s focus on the num ber of organisms killed or injured by cooling water intake structur es is eminently reasonable. See Final Rule, 66 Fed. Reg. at 65,262-65,292. As discussed above with respect to restoration measures, Congress rejected a regulator y approach that relies on water quality standards, which is essentially what UWAG urges here in focusing on fish populations and consequential environmental harm.”

EPA used this same approach in Phase I, and th is approach was continued without change in the Phase II and Phase III rulemakings. Commente rs have not here provided any new data supporting their alternative approach to AEI. Also see Essay 16.

Second, the record shows nearly a billion losses in fish and shellf ish due to impingement alone. Even when baseline losses are normalized to an age-1 equivalent, the losses due to IM&E are in the billions. EPA concluded that national BTA requirements for impingement mortality reduction are warranted. EPA disagrees that Op tion 1 was largely justified on the qualitative benefits of protecting T&E speci es. Consideration of impacts on T&E was one of several factors considered in selecting Option 1. For detailed di scussion see Section VI of the final preamble.

EPA re-considered whether a monthly IM standard was necessary to achieve the full range of environmental improvements under this rule. The 12-month IM performance standard will

Essay 19 201require a facility to actively evaluate perf ormance during the 12-month period enabling the facility to optimize the technol ogy to improve performance and counterbalance a result that does not meet the standard with a result that exce eds the minimum standard. If EPA had included a monthly average, it would have similarly needed to incorporate some form of allowance for exceedances. An allowance for exceedances provides no incentive for improved operations to avoid such exceedances. As part of this eval uation, EPA determined that the 12-month IM performance standard is sufficient to ensure performance consistent with best technology available. Further, the additional biological co mpliance monitoring for a monthly standard would not improve the overall technology performance, but would cause additiona l expense. For these reasons EPA is not promulgating the monthly aver age that was included in the proposal. EPA’s decision is consistent with e ffluent guidelines where complia nce with the monthly average limitation is not required for f acilities subject to a longer term limitation such as an average limitation (e.g., pulp and paper 40 CFR 430 Subpart B AOX limitations). For further response to comments on monthly and annual IM perf ormance standards, see Essay 16A.

Environmental organizations opposed the selection of Option 1 because, in their view, it did not include specific entrainment reduction control requirements but allowed entrainment reduction requirements to be established on a site-specific basis. Commenters indicated that EPA abdicated its responsibility to adopt effective standards fo r minimizing environmental impact from cooling water intake structures. Some co mmenters stated that it was ille gal for EPA to select Option 1 over Options 2 or 3 and indicated that cl osed-cycle cooling was technologically and economically feasible and that EPA should honor the science and should also presumptively identify closed-cycle cooling as BTA for exis ting facilities. A State agency suggested EPA should establish an impingement standard of 88 percent reduction in mortality and an entrainment standard of at least 70 percent reduction in mortality.

As discussed above, in the final rule, EPA esta blished an impingement mortality performance standard based on modified traveling screens (w ith a fish return) because the technology is widely available, demonstrated, and affordable. There are several other t echnologies that perform comparably or better than the BTA technology, th at while not available widely and thus not BTA, are available for some facilities and these technologies are included in the final rule as compliance alternatives. Also as explained a bove, EPA did not establ ish a BTA entrainment standard based on the performance of closed-cyc le technology. EPA concluded that there is no “best” performing technology that is widely avai lable, demonstrated, and affordable. Further, EPA could not identify another technology with performance that is anywhere near the performance of closed-cycle cooling. See TDD Chapter 5. EPA notes the comment suggesting an entrainment standard of 70 percen t did not provide the basis for such a standard. As discussed above, the final rule adopts a BTA entrainment st andard that requires de termination of specific entrainment reduction measures on a site-specific basis. The standard prescribes a structured process for determining such controls after require d consideration of identi fied factors at 40 CFR 125.98(f), as well as other factors to the extent that the applicant has submitted such information. Also as discussed above, EPA is not precluded from considering standards that requirement a site-specific determination.

Essay 19 202EPA notes Riverkeeper I has already upheld EPA’s authority to establish site-specific requirements:

“Section 316(b) merely directs the EPA to require every cooling water intake structure subject to regulation under section 306 (which below-threshold structures indisputably are) to reflect the “best technol ogy available.” It does not compel the EPA to regulate either by one overarching regulation, or based on categories of sources (as does section 306), or on a case-by-case basis (which, incidentally, was the tack the EPA took in its first crack at regul ations pursuant to section 316(b).”

and

“The Clean Water Act does not forbid the EPA from addressing certain environmental problems on a case-by case basis where categoric al regulation is not technologically feasible, see Nat’l Wildlife Fed’n , 286 F.3d at 566-67 (upholding the EPA’s decision to regulate color discharges on a case-by-case basis), or when it does not violate th e statute’s language and is otherwise consistent with Congress’s overriding goal of improving th e quality of the Nation’s waters, see Natural Res. Def. Counsel v. EPA , 859 F.2d 156, 201-02 (D.C. Cir. 1988) (upholding the continued enforcement of best professional judgment permit limits established prior to the promulgation of categorical limitations). It is, of course, true th at once the EPA promulgates applicable standards, regulation of t hose facilities subject to those standards on a best professional judgment basis must cease, Natural Res. Def. Counsel v. EPA , 859 F.2d at 200, but where the EPA is justifie d in not regulating uniformly, we see no reason why the EPA should have to avoid all regulation. Given a choice between not regulating below threshold structures because of technical impracticalities and regulating them on a case-by-case basis, we think the EPA reasonably chose the latter course.” [underlined for emphasis]

Some commenters, includ ing state agencies, opposed Option 1 b ecause of concern that the sitespecific determination of entrainment require ments would place additional burden on state agencies already experiencing backlogs in perm itting efforts. One noted that EPA should provide comprehensive and clearly detailed guidance on th e implementation of BPJ. EPA is aware of the burden that site-specific determinations for en trainment will place on state agencies. Where the final rule includes a site-specific determinati on, it reduces this state burden by requiring the facilities to conduct studies, analysis, and evalua tions. In addition, the required peer review will significantly review state agency review burden.

Other Options Considered for Today’s Final Regulation EPA considered several other options in developi ng today’s rule, but ultimately rejected them.

Essay 19 203Proposal Option 4 (Flexible Impingement Mortality Controls S imilar to Final Rule at Existing Facilities with DIF of 50 mgd or more; BPJ Permits for Impingeme nt Mortality and Entrainment at Existing Facilities with Design Intake Flow between 2 mgd and 50 mgd; Site-specific Entrainment Standard for Existing Facilities with DIF of 50 mgd or more; and Uniform Impingement Mortality and Entrainment Controls for All New Units at Existing Facilities Similar to Final Rule)

At proposal, EPA’s preferred opti on was Option 1, which was the opt ion closest to today’s final rule. At proposal, EPA also considered a vari ant of Option 1, called Option 4, which changed the impingement mortality requirements for facilitie s under 50 mgd from the performance standard in Option 1 to BTA as determined by best prof essional judgment. In the case of an existing facility below 50 mgd that added a new unit, the flow associated with the new unit would have been subject to the uniform entrainment requirem ents based on closed-cycle cooling. Finally, all existing facilities withdrawing more than 2 mgd of DIF would have been subject to entrainment requirements established on a site-specific basis, with the exception noted above for new units.

EPA received many comments concerning the re jection of Option 4. Many commenters opposed EPA’s rejection of Option 4 indicating that Option 4 was consistent with EPA’s rationale used in developing the Phase II and Phase III rules stating that smaller intakes have lower impact and withdraw a smaller proportion of the source water. Some suggested that EPA failed to follow the directive provided to EPA by the Supreme Court Entergy decision and questioned whether EPA violated EO 13563 by selecting Option 1 over Option 4 failing to “tailor its regulations to impose the least burden on society....” Commenters indi cated that the proposed Option 4 benefits are nearly the same as Option 1 but with a $56 Mil lion lower cost. Some indicated that the cost burden will be disproportionate for smaller facilities with minimal incremental benefit and that the larger facilities are the most likely to be able to comply w ith the data collection, operational and monitoring requirements of the proposed ru le. Other commenters su pported EPA’s rejection of Option 4 stating that it provides little guid ance to States for making BTA determinations and does not provide industry with a well-defined compliance standard for planning purposes. In particular, Riverkeeper stated that it is the least protective and most legally inadequate of all the options that EPA considered and should be given no further consideration.

EPA ultimately rejected Proposal Option 4 becaus e it found that the technologies on which the requirements of today’s final rule are based are available, feasib le, demonstrated, and affordable for all regulated facilities on a national basis. Moreover, EPA’s analysis showed that the difference in the total costs for the two options was nominal. Additionally, EPA notes that many facilities with a DIF under 50 mgd already use cl osed-cycle cooling and would have minimal burden under the final rule. EPA’s cost analysis s hows that 321 of 595 (54 percent) of facilities under 50 mgd have technologies would meet the fina l rule requirements, and 22 (4 percent) have no compliant technologies in place (weighted, base d on detailed questionnai re responses, see the TDD for more details). The remaining facilities have one or more technologi es in place and need minor upgrades or need to complete demonstrati on studies. Thus most f acilities would have no difficulty complying with either the requirements EPA is establis hing in today’s final rule or with those under Proposal Option 4. Proposal Option 4, by not distingui shing between those facilities under 50 mgd that have already minimi zed adverse environmental impacts from those that have not, masks the actions that would have to be taken by the latte r group to comply with

Essay 19 204today’s final rule. In additi on, the flexibilities introduced in the June 11, 2012, NODA and included in today’s final rule appl y to all facilities, rather than taking the Option 4 approach at proposal of providing for more Di rector discretion for only the smaller withdrawing facilities. EPA also concluded that the data collection activities required unde r the final rule will be more protective of threatened and endangered species because it provides information on a larger number of facilities than Proposal Option 4 for consideration by the Director in permitting decisions. Lastly, EPA acknowledges that Proposal Option 4 is more burdensome to permitting authorities than is the final rule, as it requires more site-specific decision-making.

EPA disagrees with assertions that lower flow facilities are small facilities, that the rule would result in a disproportionate burden on small f acilities, or that the costs are too high. For a discussion of why EPA a ppropriately subjected facilities between 2 and 50 mgd to the BTA standards promulgated today, see Essay 14 and Section VI of the final preamble.

For the reasons explained above, EPA agrees wi th the commenters that supported rejection of Option 4 and notes that, in comparison, the selected Option 1 will reduce the burden on State agencies, provides a more clearly defined path to compliance for impingement reduction and will provide more protection for T&E species at smalle r facility intakes. The proposed rule and final rule are not comparable to Phase II or Phase III, thus any arguments comparing them are not applicable. For example, Phase II (and III) would have established performance standards for entrainment for in-scope facilities, whereas today’ s rule requires IM standards and site-specific determinations for E; see Essay 14 for more discussion.

With respect to comments on reducing burden to so ciety, the final rule is more cost effective than BPJ at any threshold suggested by commenters. The final rule re quires studies as part of the permit application, and includes many pre-approv ed technologies and streamlined compliance alternatives for the IM standard that significan t reducing biological monitoring for compliance. EPA expects that the vast majority of facilities s ubject to this rule will el ect to comply with the IM standard via one of the seven compliance alternatives that does not require biological monitoring to demonstrate compliance with th e numerical IM performance standard. EPA’s record shows that the compliance technology cost s for the IM optimization study are less than standards determining via BPJ due to the expense of biological studies and monitoring associated with a BPJ determination. Based on the Phase II ICR (costs of $395k to $679k per facility for initial permit application, $7k annual reporti ng and monitoring), submission of basic characterization studies and pe rmit application materials upon which site-specific impingement requirements would cost the facilities from $59.8 million to $99.3 million per year in aggregate ($2012, for the 531 facilities with a DIF less than 50 mgd (i.e., Option 4)). Therefore the record shows that it is more cost-effective to set uniform standards for impingement than to utilize BPJ. (This statement does not hold true for entrainment.)

With respect to comments on AEI, the record cont ains studies for more th an 40 facilities with less than 50 mgd flows, showing low flow facilities do impinge a nd entrain fish and shellfish. The record also shows that low flow facilities can withdraw large portions of water from small waterbodies. Approximately 20 percent of facilities (41 facilities) below 50 mgd withdraw more than 5 percent of the mean annual flow of th e fresh water river sources on which they are located. At least 14 percent of ma nufacturers below 50 mgd withdraw more than 5 percent of the mean MAF. Further, there are 17 facilities with a DIF less than 20 mgd and withdraw more than

Essay 19 2055 percent MAF, and another 11 which withdraw from small unnamed or unknown source waters. Thus one fourth of the 116 facilities under 20 mg d exceed 5 percent MAF. Based on a review of the existing facility detailed questionnaire, EPA al so found that facilities that withdraw less than 50 mgd from a river or estuary and that are also small businesses ar e co-located with one or more facilities. At a minimum these small businesses in aggregate pose the cumulative impact of a higher percent of the source water being withdr awn; see TDD Chapter 5 for more information. After a careful review of the public comments on both the proposed rule and the two NODAs, EPA concluded that none of the issues raised by the commenters warrant a change in EPA’s decision to not select Option 4. See the Basis for the Final Regulation section of the preamble for further discussion and Essay 14.

Regarding the comment that EPA violated EO 1 3563, EPA has assessed costs and benefits (C-B) for the final rule and has reasonably determined that the benefits of the rule justify the costs. EPA agrees that exclusion of nonuse benefits from C-B consider ations is arbitrary. It is disingenuous for commenters to argue C-B rationale s to support a threshold and simultaneously discount EPA’s efforts to fully monetize the benefits of this rule. For example, the exclusion of nonuse benefits from C-B consideration suggests that the nonuse benefits of large flow facilities may be different than small flow facilities. Further, cumulative impacts of facilities with DIF below 50 mgd are significant in mo st of the U.S. At least 54 per cent of withdrawals by just those facilities with DIF below 50 mgd are cumulative w ithdrawals, i.e., there are withdrawals by more than one facility on the same river segment. EP A does not have the data to monetize benefits based on reduced cumulative impacts. For all of these reasons, while EPA has considered costs and benefits, a threshold selected exclusivel y on C-B grounds is unsupported by the record. See Sections VI and XI of the pr eamble for further discussion.

One commenter, Georgia Pacific, stated that EP A has failed to account for certain state level trends – that future state-driven water conserva tion efforts could cause several of their smaller facilities (with design intake flow s greater than 2 mgd but less th an 50 mgd) that are currently exempt based on the 25 percent cooling water thres hold to be subject to this existing facilities rule as a result of reducing overa ll water use and thereby increa sing the percentage of cooling water used. The selection of Option 4, rather than Option 1, would minimize these unintended consequences. EPA notes that the commenter supports this assertion with an unsupported statement that “cooling water use as a percentage typically becomes greater as water is recycled at most manufacturing facilities.” EPA disagrees with this statement as it relates to the final rule definition of cooling water. The definition of co oling water in the fina l rule excludes cooling water that is used in a manufactur ing process either before or afte r it is used for cooling. Thus, this water is considered as process water for th e purposes of calculati ng the percen tage of a facility’s intake flow. EPA included this reuse clause in the cooling water definition as an incentive for flow reduction through reuse of cool ing water. Thus, the cited facilities need only include cooling water reuse in a similar proportion as the overa ll flow reduction in order to maintain their current status. EPA notes that th e opposite (i.e., facilities may fall out of scope) may be just as likely, or even more likely to oc cur, since this clause allows facilities that currently fall within the scope of the final rule to no longer fall w ithin the scope if they are able to reduce cooling water use to le ss than 25 percent through reuse.

Essay 19 206Proposal Options 2 and 3 Proposal Option 2 —Flexible Impingement Mortality Contro ls Similar to Final Rule at All Existing Facilities that Withdraw over 2 mgd DI F; Require Flow Reducti on Commensurate with Closed-cycle Cooling by Facilities greater than 125 mgd DIF and Uniform Impingement Mortality and Entrainment Controls for All New Units at Existing Facilities.

Proposal Option 3 —Flexible Impingement Mortality Contro ls at All Existing Facilities that Withdraw over 2 mgd DIF; Require Flow Reduc tion Commensurate with Closed-Cycle Cooling at All Existing Facil ities over 2 mgd DIF.

Proposal Option 3 was, in many ways, the same as requiring closed-cycle cooling at all existing facilities. As described above, each of the three fa ctors for rejecting closed-cycle cooling as BTA for entrainment would apply with equal force fo r Proposal Options 2 and 3. As a result, EPA has concluded Proposal Options 2 and 3, similarly, ar e not appropriate as BTA for entrainment.

EPA received many comments concerning the Re jection of Options 2 and 3. Many commenters opposed EPA’s rejection of Options 2 and 3, indicat ing that the closed-cycle cooling requirement in Options 2 and 3:

 Were consistent with the goals of the Clean Water Act;

 Would increase air polluti on by only a small amount;

 Provide less of a burde n on State agencies;

 Are technologically and economically feasible;

 Would provide far more robust prot ection for America’s waterways;

 Would create jobs;

 Have higher monetized benefits that EPA estimated.

In particular, environmental orga nizations commented that closed -cycle cooling should be the presumptive standard and that th e four factors identif ied in the proposal in support for rejecting closed-cycle cooling as BTA could be addressed by allowing the permittee to demonstrate closed-cycle cooling is not a viable option and that particular sites with difficulties can be addressed individually. They i ndicated that Option 3 is well-supported by the law and by scientific facts and that th e EPA estimated costs of complying would be only $1.47 per household for electric generators even under Op tion 3, and that only 3.4 pe rcent of facilities would experience even “moderate” cash flow imp acts. They indicated th at Option 3 would not cause electric reliability problems, would not increase electricity prices, and would not cause any significant adverse environmental effects. Riverkeeper commented that EPA overestimated closed-cycle costs and that the co sts of retrofitting to closed-cycle cooling are minimal from both a microeconomic and a macroeconomic perspective. They note that at the company level, EPA estimated that, at the very most, 1.5 percent of existing power units would retire as a result of the compliance costs and consider this an overe stimate since EPA assumed companies would assume costs rather than pass them on. They also note that the annualized total cost of Option 3 at a 7 percent discount ra te, the highest cost estimate in the analysis, is $4.86 billion, or 0.033 percent (1/30 of one percent) of the $14 trillion U.S. GDP.

Essay 19 207Many other commenters supported EPA’s decision not to select Options 2 and 3 because they did not believe closed-cycle cooling should be a BTA require ment. Many agreed with EPA citing one or more of the four factors identified in the proposal to suppor t rejecting closed-cycle cooling as BTA (increased air emissions, land av ailability, remaining useful life, and energy reliability) as reasons for not se lecting Options 2 and 3 along with:

 The costs far exceed benefits. Net benefits ve rsus costs for Options 2 and 3 are far worse than Option 1 and costs are at least 10 times those of alternative technologies;

 Closed-cycle cooling is not feas ible at many existing facilities;

 Closed-cycle cooling increases evap orative losses and chlorine use;

 These options do not allow for due considera tion of site-specific technical feasibility;

 These options would result in an increase in early unit retirement;

 These options would result in a reduction in debris removal;

 EPA has failed to demonstrate that curre nt impingement levels are causing AEI.

As previously explained, EPA assessed a num ber of different technologies that reduce impingement mortality and entrainment as the possible basis for section 316(b) requirements. EPA concluded that closed-cycle recirculating systems (based on wet cooling towers) are the most effective technology for reducing impingeme nt mortality and entrainment. EPA disagrees that costs for retrofitting closed-cycle at exis ting facilities are minimal. Total costs for power plants of $5 billion are almost 4 percent of to tal electricity sector re venues of $126 billion – by any measure a not insignificant amount. Theref ore, EPA did look at costs and the other considerations cited above by Riverkeeper in EPA’ s deciding whether to reject options requiring closed-cycle cooling. EPA determin ed they were not dispositive.

As explained above, EPA has decided not to esta blish a performance standard for impingement and/or entrainment based on closed-cycle recirc ulating systems for existing facilities. As described previously, each of th e three factors for rejecting cl osed-cycle cooling as BTA for entrainment would also apply in the case of Proposal Option 2 or 3, despite the smaller number of facilities that would be s ubject to a requirement to re trofit. The technology basis for entrainment controls for facili ties above the threshol d under this option would have been wet cooling systems. The constraints discussed above that are associated with retrofitting a large portion of the universe of affected facilities led EPA to conclude that requiring closed-cycle cooling on a uniform basis scale was not appropriate for a national regulation.

EPA notes that it proposed multiple options that included closed-cycle, and solicited comment on all aspects of closed-cycle cooling. After fully considering all comments and data, EPA still finds closed-cycle cooling is not th e “best technology available for mi nimizing adverse environmental impact” required on a national basis. Because of a combination of concerns over land availability, air emissions, and remaining useful life of the facility, EPA has rejected closedcycle recirculating systems as the basis for nati onal impingement and/or entrainment controls. Nor is EPA able to identify a subcategory for which these concerns no longer apply.

Essay 19 208After a careful revi ew of the public comments submitted in response to both the proposed rule and the two NODAs, EPA concluded that the issues supporting th e selection of Option 2 or 3 raised by the commenters did not wa rrant a change in EPA’s decisi on to not select Options 2 or 3. See the Section VI of the preamble for furt her discussion regarding this decision. Additional discussion is provided above regarding comment s concerning the specific factors for supporting site-specific entrainment and rejecting a uniform standard based on closed-cycle.

Regarding the 125 mgd threshold for Option 2, Riverkeeper commented that EPA should keep DIF as the measurem ent because DIF puts fewer bur dens on States and because the actual intake flow (AIF) may change over time. They we re concerned that once the NPDES permit determination is set, an increase of the AIF in the future may not be reassessed for years due to permit backlogs. See proposed rule at 76 FR 22192 and 22195, as well as the final preamble for further discussion of AIF and DIF. EPA has not se lected Option 2 for the final rule, so specific comments regarding use of a threshold regarding AIF or DIF with respect to Proposed Option 2 are not relevant to the final rule . The final rule applies to existi ng facilities with a DIF greater than 2 mgd. In addition, existing facilities wi th AIF greater than 125 mgd have additional information submittal requirements.

For the final rule, EPA also considered some va riations to the proposed Options in response to
comments.

Proposal Option 4 Variant EPA also considered and rejected a variant of Proposal Option 4 for the same reasons Proposal Option 4 was rejected. A s compared to Proposal Option 4, the variant does not include the impingement mortality flexibilities, but instead adopts the 50 mgd threshold to determine those facilities for which the Director has discretion in determining BTA. EPA analyzed this option to directly compare the effects of introducing flexibilities asso ciated with the IM compliance alternatives at all facilities (as the final rule does) to th e effects of introduci ng greater Director discretion for a subset of fac ilities, via BPJ permitting (as th e Proposal Option 4 variant does). The preferred option at proposal, Option 1, was es timated to be more costly than Option 4 (Option 1 was estimated to cost $384 annually as compared with $327 million annually for Option 4). The final rule is estimated to cost $275 million annually in comparison with an estimated cost of $290 million a nnually for the Proposal Option 4 variant. Thus, EPA found that the approach of introducing IM flexibilities at al l facilities was both more effective at reducing costs to society and more read ily justified as best technology available, compared to the approach of introducing greater Di rector discretion for only a subset of facilities (below 50 mgd). Hence, EPA rejected the Proposal Option 4 vari ant, and the approach of introducing greater Director discretion for only a subset of facilities (below 50 mgd).

Proposal Option 2 Variant EPA also considered a variation of Proposal Op tion 2 that would have used 125 mgd AIF rather than 125 mg d DIF as the threshold. However, as described above, EPA rejected Proposal Option 2 and, for the same reasons, rejected this variant of Option 2.

Essay 19 209Site

‐ Specific Approach to Addressing Impingement Many commenters (primarily from manufacturing facilities) comm ented that EPA should adopt a site-specific approach to a ddressing impingement mortality, similar to that employed for entrainment. As a result, EPA also considered an approach that woul d have established both impingement mortality and entrainment requirements fully on a site-specific basis taking into account for the particular facilit y, among other factors, those previ ously described as pertinent to EPA’s 316(b) BTA determination. EPA rejected a fully site-specific approach for impingement controls principally because technologies for impingement mortality are available, feasible, demonstrated, and affordable for facilities nationa lly. Because technologies are available, a fully site-specific approach would place unnecessary burden on State permitting resources. Moreover, the final impingement mortality standard includes several alternatives that allow site-specific demonstration that a particular technology performs at a level representing the best technology available for the site. EPA is instead promulga ting a modified version of the proposed rule, adding several elements of flexibility, and thus directly addressing many of the concerns raised by these commenters. Also see Essays 10 and 16.

Consideration of Costs and Benefits on a Site

‐ specific Basis in Establishing
Entrainment Mortality Controls, Including a Cost

‐ Cost Test Commenters indicated that th e rule should have a robust eco nomi c variance provision. In general, they argued that the incl usion of a cost-cost variance is necessary to avoid the irrational result of requiring a facility to install a techno logy where that facility has unique, site-specific characteristics that cause individual complian ce costs to be many times greater than those compliance costs considered by EPA. They note th at EPA’s conclusion that a specific cost-cost variance is not necessary because under the propos ed rule the Director already would have the discretion to consider su ch factors does not apply to impinge ment requirements since there is no allowance for the Director to provide a variance from any of the impingement mortality requirements based on cost and benefits. They state that if EPA intends to include this flexibility, the regulatory language must be clarified.

As discussed in the proposal, EP A found that the cost-cost test it had adopted in the Phase II rule would have proved difficult to implement in pa rt because the Appendix to the Phase II rule discussing how to apply the test was prone to uncertainty and erro r. EPA notes that the Phase II rule included requirements for entrainment reduc tions, and the final Phase II rule was more costly than today’s rule even though it only addressed existing large flow electric generating facilities. While not required to do so, the fina l rule includes sufficient flexibility to allow facilities to avoid exceptional costs. EPA accomplishe d this by structuring the final rule to allow facilities to choose from multip le impingement mortality compliance alternatives presenting facilities with a range of different costs associat ed with each alternative. Thus, facilities are free to choose the lowest cost altern ative. These include streamlined alternatives based on modified traveling screens or a system of technologies that are intended to result in reduced long-term costs by reducing future monitoring requirements. Also the final rule allows the Director to conclude based on site-specific data that impinge ment mortality at the site is de minimis and therefore no additional controls are warranted to meet the BTA impingement mortality standard. EPA has determined that the available compliance alternatives provide sufficient flexibility, and that the costs of such controls is sufficiently low such that no fac ility will experience an exceptional level of cost and need a cost varian ce. Commenters have not provided data to the

Essay 19 210contrary. Indeed, EPA notes that detailed comments and data on EPA’s costs of the proposed IM requirements support the agency’s finding on this matter; see TDD Chapter 8 concerning costs and Chapter 12 for uncertainty analysis in costs. Therefore EPA has not included a cost test for IM in the final rule because of the flexible nature of the final impingement mortality standard (i.e., includes seven compliance alte rnatives), the significantly less cost of this rule (compared to Phase II), as well as the finding that IM is available, feasible, and achievable.

Riverkeeper suggested the compliance costs to be considered in any cost-cost variance should include only capital expenditu res, operation and maintenan ce, and energy penalty, not speculative, indirect add-on costs. EPA notes that the final rule does not include a specific costcost variance and that the Dire ctor’s evaluation of site-specifi c entrainment requirements may include consideration of many fact ors including costs. EPA recognizes that the Director is in the best position to evaluate what entrainment controls are appropriate at a particular site taking into account the costs cited by the facility and other factors id entified at 40 CFR 125.98(f)(2).

Subcategorization

Capacity Utilization Rating As a Basis for Different Standards, Peaking Units, Seasonal Operation and Other Related Comments EPA received a number of comments concerning capacity utilization rates (CUR) and the applicability of requirements to peaking units and intermittently operating facilities. Some argued that facilities with low cap acity utilization rates should be subject to the same limitations on entrainment, entrapment, and impingement as other facilities. Most argued that low CUR facilities should be exempt from impingement and/or entrainment requirements with possible exceptions for those that use disproportional amount s of water or operate during periods of peak biological activity. They note that as EPA explained in the preamble to the Phase II rule, imposing entrainment controls on facilities with ca pacity utilization rates at or below 15 percent is not economically practicable and that the impacts of such facilities is small. Various definitions for low CUR were suggested (e.g., 10 percent, 20 percent, 1,500 hrs per year, percentage set equal to the BTA mortality rate s). Another stated it is unclear as to what flexibility NPDES states have in addressing old po wer plants that are rarely, if ever run. They questioned whether EPA considered alternative permitting and/or implementation procedures to address the older facilities that are mothballed, placed on cold standby, or maintained in various other states of operational readin ess but are rarely, if ever, placed into operation. An industrial stakeholder stated that the factors EPA used to justify eliminating consideration of low CUR in determining requirements don’t necessarily apply to manufacturing intakes with a low frequency of use such as for aircraft engine testing and research and development activities. In order to account for such operations, they suggested EPA should exempt CWISs used for these activities or use intake flow capacity uti lization to determine which CWIS at manufacturing facilities are used often enough to justify the co sts of any further regulation.

The final rule, in contrast to Phase II, does not establish a single uniform technology-based requirement for entrainment reductions, but rather entrainment determinations will be made on a site-specific basis. Further, the final rule includes seven alternativ es for achieving the impingement mortality standard. To this extent, therefore, the CUR provision in the Phase II rule is not particularly pertinent to this final rule . EPA disagrees that, as a categorical matter, low

Essay 19 211CUR facilities have minimal impact. EPA found th at low CUR facilities are generally peaking plants that operate at full capacity for portions of days during a few months or less. Further, EPA found that some sites continue to withdraw water through their cooling water intake structure even when no power is being generated. With resp ect to entrainment, if that period of cooling water intake operation corresponds with times when spawning is occurring, those facilities could have significant entrainment. In contrast to Phase II which included minimum entrainment reductions, today’s BTA standards for entrainmen t and impingement mortality are less costly and do not result in disproportionate economic imp acts, even for low CUR units. Therefore, EPA has no record basis for and is not including an ou tright exemption for all low CUR facilities in the final rule. For the same reasons, EPA is not including an exemption for “infrequently” operated intakes at manufacturing facilities.

EPA notes that with respect to today’s IM standard, all facilities have seven compliance alternatives. In particular, EPA notes that the lowest CUR units may indeed be operated at times where I and or E are minimal. Such facilities may be able to comply with the impingement mortality standard under 40 CFR 125.94(c)(6) with a system of technologies, such as flow reduction, location, and seasonal op eration, demonstrated to achieve comparable impingement mortality reduction performance to that achieve d by modified screens. Alternatively, under 40 CFR 125.94(c)(11) a facility can de monstrate to the Director that impingement mortality at its site de minimis and consequently, no additional controls are warranted.

However, EPA agrees there are valid reasons that the IM requirements should be considered on a site-specific basis for some infrequently used un its, especially some very low CUR units and that the existing IM flexibilities may not account for su ch situations. Therefore, while the final rule applies to low CUR units, it incl udes a provision that enables the owner or operator of low CUR units to request the Director to establish BTA standards for IM for that unit’s cooling water intake structure which are less stringent that toda y’s final IM standards. After consideration of various approaches to regulating low CUR fac ilities, EPA concluded that only those intakes serving power generating units with a CUR of less than 8 percent may request less stringent impingement mortality controls as determined by the Director. In particular, CUR units serve critical energy reliability func tions, such as during peak energy demands or during emergency events (such as a baseload unit going offline due to flooding). Therefore, EPA has determined that even with the numerous IM flexibilities, an additional provision specific to low CUR units was necessary to ensure energy reliabilit y. See 40 CFR 125.94(c)(12). Also see the Implementation section of the preamble for further discussion.

One commenter requests that State Directors be granted specific discretion to consider capacity utilization in establishing im pingement and entrainment standards and monitoring requirements and if a capacity factor-based standard is un acceptable to EPA, an “off-ramp” based on AEI should be considered. EPA disagrees that AEI sh ould be considered for impingement mortality standards except where for the most rare cases where the de minimis impingement can be demonstrated under 40 CFR 125.94(c )(11). As discussed above, EP A has determined that low CUR facilities will have little difficulty in co mplying with the BTA impingement mortality standard, given the broad range of complian ce alternatives and the provision at 40 CFR 125.94(c)(12). EPA notes that under the final rule entrainment requirements will be established in a site-specific proceeding that will take into account enviro nmental impacts of the site. The permit application requires, among other data, info rmation specific to operational status at 40

Essay 19 212CFR 122.21(r)(8), as well as the baseline biologi cal characterization at 40 CFR 122.21(r)(4). EPA expects that this will inform the Director, in establishing entrainment controls specific to low CUR facilities.

One commenter suggested that an alternative approach would be to allow consideration of capacity utilization factor in the context of flow reduction an d the calculation baseline to calculate reductions in impingement and entr ainment. EPA disagrees with this suggested approach. EPA does not consider th e relationship between the histor ical actual intake flow and the design intake flow as an indi cator of flow reduction. For exam ple, many baseload facilities operate at an AIF of approximately 50 percent of their DIF. These facilities should not get credit for the unused capacity of their intake structur es. However, if a facility chooses to reduce operation as a flow reduction st rategy, credit for the corres ponding reduction in AIF may be incorporated in the system of technology compliance alternative.

One commenter stated that low capacity facili ties should not be required to complete the proposed Entrainment Characterization Study (ECS ) because they do not operate frequently enough to meet the proposed perm it application requirements. EPA disagrees. Any facility that withdraws more than 125 mgd mu st submit the ECS. Since the calculation of the AIF includes days of zero flow, facilities with low CUR shoul d also have a low AIF and consequently, few such facilities, if any, would need to complete an ECS as part of their permit application. This 125 mgd provision is also intended to address those situations wh ere the facility is a low CUR facility, but continues to withdr aw cooling water even though it is not pro ducing electric power.

A State agency commented that DIF should be us ed instead of AIF for determining entrainment requirements because using AIF gives an unfair a dvantage to peaking generators when assessing need for entrainment requirements. These peak ing generators come on line and intake large quantities of water during their hottest and dr iest summer months, which only exacerbates the potential for environmental harm. EPA disagrees that DIF would be the better measure but understands that at certain site s, even facilities with lowe r AIF may have a substantial entrainment impact where high flow volume coinci des with high biological densities or stress. As discussed above, this is why EPA has not ca tegorically exempted peaking plants from the rule, and has not exempted such facilities fr om IM standards or entrainment requirements.

Some commenters disagreed with EPA’s assertion that peaking unit operation may coincide with spawning periods. Other commenters not ed that this may be true for the northeast but may not be true for other regions like Flor ida where peak spawning occurs in the spring and fall. EPA agrees that the timing between peaking unit operation a nd high biological activity will vary from region to region and site to site. However, as discus sed above EPA does not have a record basis for exempting such units from requirements, and co mmenters here did not provide any such basis. As discussed above, EPA expects that the Direct or will take into consideration the operating schedule and seasonal biological data when de veloping actual site-specific entrainment requirements.

One commenter expressed concern that low CUR plants will have difficulty collecting required characterization and monitoring da ta without forced operation. F acilities should not be required to operate to collect such da ta. Operating solely for the purpose of satisfying the permit application requirements would result in more entrainment/impingement, and unnecessary costs,

Essay 19 213fuel use, and air emissions. EPA should cons ider amending the permit application and postinstallation verification monitoring requirements so that facilities can collect and submit impingement mortality and entrainment data coll ected when they otherwise would be operating and, if operations are sufficiently unpredictable, allow for waiver of requirements. EPA agrees that facilities should not be required to operate their cooling sy stem in order to collect data. As noted above, the final rule does not require a facility to conduct biological compliance monitoring to demonstrate compliance with today’s IM standard. Rather, that approach is one of seven compliance alternatives. Facili ties that choose to comply w ith the alternative that involves biological monitoring to demonstrate compliance with the numeric performance standards will not be required to operate the intake in order to collect data. Monitori ng periods in which there was no operation will simply have no impingement data to submit. In other words, if the facility did not operate the intake structure in March, that facility did not impinge or entrain any organisms in March, and the faci lity data would appropriately reflect zero counts. Finally, 40 CFR 125.96(f) provides that a faci lity may request less freq uent monitoring under certain conditions. With respect to the permit applicat ion requirements, EPA notes that the required source water baseline biological characterization data is an evaluation of the biological community in the vicinity of the cooling water in take structure and does re quire the operation of the intake to be completed. EPA also notes th at the ECS at 40 CFR 122.21(r)(9) specifies data gathering must be representative of entrainment at the intakes, thus nothi ng in the rule requires facilities to be operated to collect data. Simila rly, the entrainment monitoring to support the facility’s calculations for the Entrainment Characterization Study must be collected during periods of representative operational flows for the cooling water intake structure.

Commenters expressed concern that the installati on of controls at low capacity units which can operate as independent profit cente rs is not cost effective as th e capital cost cannot be recouped given the limited operation of the unit. They argue that requiring even the performance of advanced studies at these facilities, let alon e the installation of t echnology, could potentially force the early retirement of these facilities and that the continued availability of low utilization units during times of peak demand significantly impr oves the reliability of the grid. If they are deemed to be “reliability, must run” facilities by the independent system operator charged with ensuring the stability of the electric system, then the costs of technologies or additional studies may be borne by the ratepayers. One suggested th at, at the least, EPA should include a provision that allows the Director to avoid requiring studies for low CUR facilities in the event the facility operator is willing to enter into an agreement to retire the facility at the close of the eight-year compliance window.

As explained above, EPA has found IM controls are available, feasible , and achievable. EPA disagrees that additional relief is warranted for low CUR units, as discussed above, based on the economic analysis of the less co stly (compared to Phase II) rule. EPA has already included flexibilities for requirements to submit studie s, and for facilities with low CUR units, as described above. EPA’s analyses de monstrate that the final rule is affordable, including for low CUR facilities. Regarding the comment reques ting reduced requirements for low CUR units planning retirement see response under “Remaining Useful Plant Life Should be Considered in Establishing Compliance Requirements” secti on above. Regarding the costs of entrainment controls, EPA notes that entrainment requireme nts are based on site-specific considerations including costs.

Essay 19 214Waterbody Type as A Basis For Different Standards In general, industry disagreed with EPA’s deci sion to not consider proportional flow, waterbody type, or associated fish reproducti ve strategies as a basis for diffe rent requirements. They stated that EPA’s rationale for exempting facilities wi th intake flow less than 5 percent of waterbody flow under Phase II remains valid, that the impact of small intakes on large rivers are negligible and such adoption would also serve to reduce the administra tive and implementation burden on State permitting agencies. Others suggested EPA should exempt entrainment requirements for greater than 125 mgd intakes where intake flow is less than 5 per cent of waterbody flow such as on the Mississippi River. EPA disagrees that pr oportional flow should be a consideration in applying the BTA standards for the final rule.

EPA notes that the Phase II rule exemption wher e withdrawals are less than 5 percent of the mean annual flow was only for freshwater rive rs and streams, and fu rther only applied to entrainment requirements. Here commenters ar e suggesting that such withdrawals should be outright exempted, including exempted from IM requirements. EPA disagrees; see Essay 14 for full discussion. Next, commenters asse rt that all such withdraws pos e negligible impacts, but did not provide data supporting this position. As discussed above, AEI is defined as impingement and entrainment, and the studies in the record show that facilities of all sizes and on all waterbodies do impinge and entrain numerous organisms. EPA was upheld on this issue, and has neither proposed to change nor identified a reco rd basis to change this definition. Further, as discussed above and in the preamble, EPA has id entified significant potential for cumulative withdraws and cumulative impacts, such that exempting individual facilities would be inappropriate. In this final rule entrainment requi rement are established on a site-specific basis, and as such, the need for entrainment requirement s will be determined by the Director on a sitespecific basis, which may take impacts on the waterbody into consider ation. Therefore, an exemption is neither ap propriate nor necessary.

Many industry stakeholder commenters wanted EPA to consider waterbody and or fish characteristics when establishing entrainment requirements noting that waterbody type is an important factor regarding AEI. The primary fo cus was on entrainment but a few mentioned both entrainment and impingement requirements. Sugg ested approaches include: exclusion based on predominant fish reproductive strategies; retainin g the Phase II exclusion for lakes, reservoirs, and river/stream intakes with DIF less than 5 percent of waterbody flow; and exclusion of Great Lakes. In particular commenters focused on the differences between entrainment rates of eggs and fish larvae particularly between coasta l versus inland freshwater bodies. Regarding reproductive strategies of the sp ecies present in the waterbody, commenters stated that it makes no sense for EPA to apply entrainment standa rds to fresh water systems where broadcast spawning species do not exist. Many comment ers also questioned EPA’s argument and supporting documentation against subcategoriz ing intakes based on waterbody type. They particularly took issue with EPA’s assertion that data in the six gra phs presented in DCN 10­ 6701 and 6701A support EPA’s conclusion that entr ainment concentration is similar in all waterbodies. Commenters were conc erned as well with the lack of any explanation of the source for the underlying data, the methodology used to an alyze the data, the unusual use of milligrams per liter units, the variation in sample sizes, or the use of different scales on the y-axis. They also argued that the six graphs in EPA’s documentati on that show density of organisms in various waterbody types appear to clearly show that entrainment concentra tions in marine and estuarine environments are much higher than entrainm ent concentrations in fresh waterbodies.

Essay 19 215Riverkeeper supported EPA stating that there is a legal requirement for uniform national standards across all waters of the United States; that Congress intended that the best technologies available be used, and that te chnology-based standards not be relaxed based on assessments of local water quality, which in th is context means considerations of the density or reproductive strategies of the aquatic populat ions in a particular waterbody; and that establishing different standards for different waterbodies based on their existing ability to support certain densities and populations would allow facilities to impact the remaining and ba dly stressed aquatic populations in waterbodies that have already been severe ly harmed by prior use as industrial dumping grounds.

With respect to waterbody-based national standa rds for IM, as discussed above EPA disagrees. The IM performance standards are available, dem onstrated, and feasible; further the final rule provides seven compliance alternatives. EPA disagr ees with the industry stakeholder suggestions regarding the six graphs, again noting the above discussion that AEI is defined as impingement and entrainment. The graphs clearly show signi ficant I and E densities in all waterbodies. EPA agrees that freshwater reproducti ve species are generally different than other waterbodies, but notes that this distinc tion has no bearing on which technologie s can be used for IM, and further that waterbody type does not resu lt in disparate performance levels of the technologies. EPA also notes that comments regarding the spawning habits of various species do not mean that larval stages and early life-stages of fish and shellf ish will not be found in those waterbodies. Indeed, the graphs show that the range of densities of all life stages is similar in all waterbodies, and therefore establishing a waterbody- based standard may not provide adequate protection. Further, EPA found that there is no fundame ntal difference in technological performance or availability based on waterbody, and rejected these reasons as a basis for subcategorization. EPA notes that because the final rule requires en trainment to be determined on a site-specific basis, many of these comments will be addressed during such determinations. This may include consideration of physical and biological characteristics of the wa terbody. This flexibility in the application of entrainment requirements addresses the commen ter’s assertion by provi ding the opportunity to demonstrate to the Director that entrainment densiti es in the vicinity of the intake structure and the distribution of species in the waterbody do not warrant additional controls for entrainment. With respect to further comments about the Ph ase II rule exemption, EP A notes that further review of the available data in the proposed rule did not suppor t EPA’s earlier conclusion; see preamble discussion regarding I and E, E survival, and E mortality.

One commenter notes that the proposed rule may conflict with activities to restore the Great Lakes, adding that once-through cooling has a significant impact on the Great Lakes. EPA recognizes that there are many c oncurrent programs across the nation that are working to restore or improve water quality and commends these effort s. However, these efforts are independent of section 316(b) from a statutory perspective and EP A has developed a final ru le that considers the appropriate factors established under the Clean Water Act and is supported by its analyses and record. EPA concluded that es tablishing subcategories for di fferent waterbody types was not necessary or appropriate. To the extent the co mmenter does not support closed-cycle due to withdraw from the Great Lakes and subsequent evaporative losses, see discussion in Essay 17A.

EPA received several comments suggesting other subcategorization appr oaches. Riverkeeper commented that EPA should subcat egorize facilities according to the feasibility of control technologies and further suggested that if impact to small facilities was the concern, then setting

Essay 19 216a higher threshold (e.g., 500 mgd) w ould be a better approach. EPA did not find that facility size nor impact to low flow facilities posed a ra tionale for subcategorization because the IM technologies are available, demons trated, and feasible for faciliti es of all sizes and waterbodies; see EA. Further, low flow facilities do cause AEI; see preamble and Essay 14. Therefore, EPA disagrees with the comments and ha s decided to maintain the scope and applicability of the final rule at 2 mgd DIF. EPA explored the possibility of subcategorizing facilities based on feasibility of CCRS, and has rejected such an approach as discussed above.

For a more detailed discussion of these and ot her factors considered for subcategorization by EPA see TDD Chapter 5. EPA considered subcate gorization based on other control technologies as well as other attributes such as waterbody type, CUR, and flow but found that subcategorization based on these (or any othe r factors) was not necessary. EPA rejected subcategorization based on water body type and CUR and was unabl e to identify a suitable basis for subcategorization with resp ect to technology feasibility. EPA did consider subcategorization based on various flow thresholds and availability of space. Fo r example, EPA considered a threshold of 50 mgd for Option 4 and requested comments on that approach; EPA rejected the Option 4 because technologies for IM are available, demonstrated, feasible, and affordable for all facilities. EPA also investigated other flow thresh old values with the inte nt of reducing the total costs of the rule by reducing the number of fac ilities regulated while still capturing the majority of cooling water flow (for example, the 125 m gd threshold in Option 2). However, none of the thresholds considered resulted in subgroups with discernibly different attributes that would support subcategorization; see TDD Chapter 5. As described above, EPA also considered subcategorization based on available space but as discussed below was unable to identify a basis or metric that could provide a reasonably relia ble assessment of feasib ility of closed-cycle cooling. EPA notes that the 1976 rulemaking also atte mpted to consider available space. In light of the identified limitations on installation of cl osed-cycle recirculating systems in described circumstances, EPA concluded that providing the Director the discretion to consider multiple factors provides a much more reasonable approa ch to determining entrainment requirements. For the first time, EPA is including in the regulatory language specif ic requirements for studies, analysis, evaluation, and peer revi ew of entrainment controls. Th is information will be submitted in the permit application, and will be considered by the Director when making a determination of BTA technology for entrainment. EPA notes that the commenter did not provide any suggestions regarding what specific basis EPA should ha ve considered for s ubcategorizing based on technology feasibility beyond t hose EPA did investigate.

Essay 19 217

### Essay 20: New Units

Introduction The Phase I 316(b) Rule requires cl osed-cycle cooling or an equivalent level of performance for newly constructed greenfield a nd stand-alone power generation and manufacturing facilities, which under certain circumstances may include new construction at existing facilities. In developing the existing facility fi nal rule EPA observed that cert ain newly constructed units at existing facilities may share many of the same ch aracteristics of Phase I new facilities and the same opportunity to incorporate upda ted design features, but are not new facilities as defined in the Phase I rule. Because of th ese similarities EPA decided that its BTA requirements for new units at existing facilities should be modeled after certain requirements applicable to a new facility under the Phase I Rule.

Overall Response In the proposal, EPA clearly defined those units that would be a “new unit” and requested comments on its definitions. New units were defi ned as additional units and did not include replacement or repowered units. After considerin g the public comments, for the final rule, EPA has changed the definition of new units to indica te that they are stand- alone units at existing facilities whose construction begins after the effective date of the ru le, that are added to a facility for either the same general industrial purpose or for another purpose and that do not meet the definition of new facility (see, § 125.92). This provision distinguishes new units from new facilities, and further makes it clea r that any new stand-alone unit at an existing facility would be subject to the new unit requirements.

EPA’s rationale for adopting the same requirement s for new units at existing facilities as the requirements for Phase I facilities is that, like Phase I facilities, these new unit construction projects present the ideal opportuni ty to design and construct the new unit’s cooling system in a manner that avoids many of the difficulties, a dditional expenses and operational disadvantages associated with retrofitting an existing unit to closed-cycle cooling. For example, the three factors that led EPA to reject closed-cycle cooling as BTA for existing units at existing facilities (land availability, increased air em issions, and remaining useful life) are far less relevant for new units at existing facilities than for retrofitting ex isting facilities. First, an existing facility may need additional land in order to accommodate new construction. EPA found in site visits that where land availability may pose a constraint , the construction of new units is often accomplished in phases that allow for the demolition of the old structures to make room for the new construction and that newly designed and constructed units ca n take advantage of innovative designs that use less space. 31 Second, EPA rejected increased air emissions as a factor for rejecting closed-cycle as BTA fo r new units because the condensers will be optimized for closedcycle, reducing energy requirements, and high-efficiency cooling towe rs can be incorporated into the design of the new unit, potentially allowing fo r smaller cooling towers to be installed. Thus,

31 Innovative locations can include locating towers over top of waterbodies such as discharge canal or the source water as well as locating dry cooling systems on rooftops. The innovative technologies are not limited to cooling tower technology.

Essay 20 218the turbine backpressure is eliminated and any associated energy penalty can be substantially reduced in a new unit. For more information, se e the preamble and Chapters 6, 8, and 10 of the TDD. Further, the new unit is likely to be more efficient and emit less pollution than existing units, therefore net emissions are expected to de crease as new units replace older, less efficient units. Third, EPA rejected useful life as a factor for re jecting closed-cycle cooling because a new unit has the maximum opportunity to produce powe r or be used for production of manufactured goods for the longest time possible. Modificatio ns and upgrades to maintain or replace an existing unit or to enable the unit to operate fo r a few years more are not part of the new unit definition. Therefore such upgrades would not result in the facility being considered a new unit, and there is no disincentive under the rule for needed upgrades to occur. EPA expects that most new unit projects that meet this defi nition will have a long useful life.

New power producing units are almost always much more fuel effi cient than existing units. This efficiency minimizes emissions and increases po wer output. For example, the average coal-fired plant had a heat rate of 10,498 BTU per kW-hr (EIA , 2012) corresponding to a fuel efficiency of 32 percent. Modern coal-fired pl ants operate at 35-38 percent fu el efficiency, with some super critical 32 plants approaching 42 percent. Combined cycle gas can achieve around 60 percent fuel efficiency. The more fuel efficient systems are al so typically more energy efficient, resulting in lower cooling requirements. For all of these reason s, the three factors for rejecting closed-cycle as BTA for existing facilities woul d not generally apply in the case of new units. In consideration of each of these factors, EPA finds the record sh ows that closed-cycle is feasible, demonstrated, and available for new units at existing facilities.

In setting BTA for new units, EPA also consider ed the costs of closed-cycle requirements for new units. EPA found that a significant number of new unit construction projects already employ closed-cycle. Therefore, the ba seline analysis accounts for this trend. For example, many new units in the south and southwest are installing closed-cycle due to limitations in local water availability. See DCN 12-6673. Some recently built new units have not installed closed-cycle, and EPA has estimated costs for similarly constr ucted new units to install closed-cycle. When constructing a new unit, the costs of a CWIS large enough to accommodate once-through cooling are comparable to the capital cost s of a facility with closed-cyc le cooling. While differences in capital cost may or may not o ffset the energy requirements fo r operating closed-cycle cooling (i.e., cooling tower pumping costs) at a particular site, the total annual increm ental costs are low. EPA found that these incremental costs do not pos e a barrier to entry for new units; see the Economic Analysis (EA).

The new unit requirements also apply to new uni ts at manufacturing facilities. As discussed elsewhere, a majority of manufacturers use coo ling water primarily or exclusively for power and steam generation; see Essay 14. In these instan ces, the new unit defini tion is appropriately applied to the manufacturing facility. EPA recogni zes that, for other manuf acturing facilities, it may be less clear, compared with power generati on, what constitutes a “unit” and, further, it may require judgment to determine when constr uction of a new unit occurs at the existing manufacturing facility. EPA has a ddressed this issue, in part, by revising the definition of new unit. See Section I of the pr eamble for more discussion.

32 Operating at 220 bar and 600 degree C superheat and reheat.

Essay 20 219Finally, the EPA realizes that in a few instances , it is possible that installation of a new unit could result in an existing facility with a DIF of 2 mgd or less and thus not previously subject to this rule becoming subject to this rule’s existing facility requirements. The owner or operator of a new unit, as defined at § 125.92, at an existing facility not previous ly subject to existing facility cooling water intake structure requirements under 40 CFR Part 125 that increases the total capacity of the existing facility to more than 2 mgd DIF must submit the permit application information specified at § 122.21(r) at the time of the permit application for the new unit. In addition, the owner or operator of new units at existing facilities must submit to the Director the information required under paragraphs (r)(9), (10) , (11), (12), and (13) at the time of the permit application for the new unit if the additional capacity will result in the existing facility withdrawing greater than 125 mgd AI F. The final rule definitions as well as the distinct section of permit application requirements for new units make it clear that, in such circumstances, a new unit is not the same as a new facility.

Definition of New Unit Many commenters expressed concern that the definition of new un its provided in the proposed rule was unclear. Some were concerned that an y modification to an existing unit might trigger new unit requirements. Commenters were partic ularly concerned that it is unclear how the concept of “new unit” would apply to a ma nufacturing facility. EPA solicited comments regarding the definition of new units in the propo sal and considered issues raised in the public comments received in crafting the revised defi nition of new units for the final rule. For generating units, EPA has made it clear that only ne wly built, separate, sta nd-alone units that are added to a facility for either the same genera l industrial operation or another purpose meet the definition of a new unit. For power generators, th e term “generating unit” is quite clear since there is only one product (electricity), the non-co ntact cooling water pred ominantly comes from one source, and the application of the term is well-understood in the industry. As discussed above, where manufacturers use cooling water primarily or exclusively for power generation, the same definition of new unit is equally applicab le. EPA recognizes that the definition of what comprises a new unit at an existi ng manufacturing facility may be less clear than it would be for power generating facilities sin ce manufacturing may include various subdivisions of process and product equipment groupings that could conceivabl y be deemed as a unit. For these reasons EPA has defined new unit to simply mean a new st and-alone unit. A new unit may include one or more distinct production lines that are added to increase product output and operate parallel to and independently of existing production eq uipment. A new unit does not include the replacement or rebuilding of one or more distinct production lines or distin ct processes involving the replacement of the majority of the waste heat producing equipment that serves as sources of non-contact cooling water and the majority of th e heat exchanging equipment that contributes heat to the non-contact cooling water. In many cas es, the application of the term “new unit” will be quite clear while for a small handful of s ituations a site-specific determination may be necessary. The final rule clearly states it does not apply to “con tact cooling water.”

Many industrial stakeholders support the proposed new unit definition that excluded rebuilt, repowered, and replacement units at existing facilities, agreeing th at they should be treated as existing facilities rather than as new units . Other commenters argue d that replacements, repowerings, and rebuilt power plants should be required to meet standards based on closedcycle and that excluding repower ed/rebuilt plants is a big loophole. One commenter also

Essay 20 220suggested that EPA should set a deadline by which all existing f acilities must comply with the new source (new unit) standards in this rule to prevent environmentally destructive plants from remaining open longer than they otherwise would have absent the regulation. EPA agrees with the industrial stakeholders that all rebuilt, repowered, and replaced units at existing facilities should be exempt from the new unit requireme nts, for the reasons discussed below. EPA disagrees that all rebuilt, repowered, and replaced units should be defined as new units, for the reasons discussed below. After evaluating the pu blic comments and cons idering the technical issues involved, EPA has made mi nor changes to the definition of new units. In the final rule new unit definition, EPA sought to distinguish those facility upgrades that constitute a modification or replacement of an existing unit from stand-alone projects where major construction will occur based on the extent to wh ich these actions provide the opportunity for, and advantages of, employing closed-cycle cooli ng in a manner similar to those at Phase I facilities. Thus, EPA has specified that a new un it is a stand-alone unit, which is defined as a separate unit that is added to a facility for eith er the same general indus trial operation or another purpose. EPA disagrees that a deadline is nece ssary to impose new unit requirements for all existing facilities. New unit requirements are not a pplicable to existing units at existing facilities for the reasons discussed in the preamble. In addition, new units could be added to existing facilities at different points in time, so a fixed deadline is impractical. Further, new unit requirements can vary and therefore any schedule is more effectively addressed in a permit.

EPA agrees with commenter statements that th e new unit requirements should not discourage or jeopardize the replacement of exis ting generating units with more efficient units that offer multiple benefits such as reducing air emissions per megawatt of electricity generated. EPA notes that an existing facility’s equipment will eventually need to be replaced and, over time, most facilities will be modernized using high efficiency units. EPA considered, and requested comment on, different ways to distinguish upgrades to an existing unit. After consideration of all comments, EPA concludes that avoiding disincentives to mo dernizing existing units is paramount. EPA further finds that the wide arra y of activities that could be considered as triggering new unit requirements do not always pr esent the opportunity to design and construct the new unit’s cooling system in a manner that avoids many of the difficulties, additional expenses and operational disadvantages associatedwith retrofitting an existing unit to closedcycle cooling as discussed above. For example, a Type I uprate 33 at a nuclear facility, and most Type II uprates 34 do not involve extensive reconstruction, and therefore would involve a retrofit rather than a redesigned cooli ng water intake system. The final rule definition of new units does not discourage upgrade activities gi ven its focus on new stand-alone units. EPA also agrees that high energy efficiency systems have multiple be nefits such as reduced fuel consumption,

33 Type I nuclear uprates, referred to as “measurement un certainty recapture power uprates” are are achieved by implementing enhanced techniques for cal culating reactor power. This involves th e use of state-of-the-art feedwater flow measurement devices to more precisely measure feed water flow, which is used to calculate reactor power. More precise measurements reduce the degr ee of uncertainty in the power level, wh ich is used by analysts to predict the ability of the reactor to be safely shutdown under postulated accident conditions. See U.S. NRC, Types of Power Uprates, available at http://www.nrc.gov/reactors/ operating/licensing/power- uprates/type-power.html

. 34 Type II nuclear uprates, referred to as “stretch power uprates” are uprates w ithin the design capacity of the plant. The actual value for percentage increase in power a plant can achieve and stay within the stretch power uprate category is plant-specific and depends on the operating margins included in the design of a particular plant. Stretch power uprates usually involve changes to instrumentation setpoints but do not involve major plant modifications. See U.S. NRC, Types of Power Uprates, available at http://www.nrc. gov/reactors/operating/licensing/poweruprates/type-power.html

.

Essay 20 221reduced cooling water use and fewer air emissi ons and has sought to encourage rather than discourage such systems. EPA notes that rebuil t, repowered and replacement units will almost always be more efficient resul ting in less cooling water use pe r unit of production. By requiring closed-cycle cooling in new sta nd-alone units, EPA is ensuring (along with the Phase I rule) that no new once-through cooling units or facilities w ill be built. For more information, see Section VI of the preamble.

One commenter noted that at § 125.9 4(d)(1) it is not clear that th e closed-cycle requirement only applies to the new unit. Further, the rule did not clarify how the ru le applies to the existing intake if water for the new unit is to be withdraw n through it. A similar concern was expressed regarding the 90 percent comparable performance requirement in § 125.94(d)(2). One commenter noted that it is not clear if the standard at § 125.9 4(d)(1) applies to independent suppliers. EPA agrees the language was unclear since § 125.94(d)(1) referred to the “actual intake flow (AIF) at a new unit...” and has revised the require ment to read “design intake flow (DIF) for the new unit....” Note this final rule provision is now § 125.94( e), not § 125.94(d). These requirements apply only to the intake fl ow component associated with the new unit and not necessarily the source intake; see § 125.94(e)(1 ). The flow reduction requirement applies to the DIF requirement of the new unit and applies to independent suppliers in that they will be required to supply less water. The alternative co mparable performance requirement may apply to an independent supplier in that such reductions may be achieved through changes in intake technologies employed.

One commenter states that the definition of “r eplacement unit” should be clarified to mean replacement units of a specific size. Thus EP A would make it clear that a repowered or replacement unit of larger capacity than the uni t it replaces would be a “replacement unit” and not a “new unit.” EPA’s definition of new unit app lies to stand-alone unit s only and as discussed in the preamble does not include rebuilt, repowered or replaced units. Therefore, size designation is not necessary.

Commenters are concerned that the rule is not clear about the applicabil ity flow threshold for new units and suggested a de minimis flow ex emption should be provided for new units. An example given was a 225,000 gpd new unit that shoul d not be subject to the proposed rule requirements since it would not be covered under Ph ase I if built as a separate greenfield plant. Commenters suggested that EPA should at least exempt small facilities from an automatic closed-cycle cooling requirement, and instead a llow them to engage in case-by-case analysis. EPA disagrees that any facility should be exem pt from 316(b) requirements of this rule; see Essay 14 regarding scope and applicability. EPA fu rther disagrees that low flow facilities should be exempt, see Essay 14 regarding cumulative impacts. In the fina l rule, the scope of the rule includes those facilities in whic h the total design intake flow is greater than 2 mgd, including both the existing and new unit cooling water withdr aws (facilities with a de sign intake flow of 2 mgd or less are subject to 316(b) requirements determined on a case-by-case, best professional judgment basis). EPA disagrees th at there should be some sort of minimum incremental flow volume threshold for the new unit component. New un its are a component of an existing facility and the relative size of a new unit does not change the factors that EPA evaluated in determining the new unit requirements. The addition of a ny new unit of any size and its cooling water requirements poses a new and additional withdr aw from the source water, exasperating any cumulative impacts; see Essay 14. Also, setting a threshold at some level below 2 mgd could

Essay 20 222allow facilities to break up new unit upgrades into components and sta gger their implementation such that each remained under th e threshold but in aggregate w ould clearly m eet the scope of today’s rule. To the extent that a new unit results in th e existing facility bei ng subject to Subpart 125 for the first time, see the above discussi on regarding permit application requirements.

One commenter stated that the “exclusively for c ooling towers” and “only for replacing losses of cooling water” restrictions and the definiti on of “cooling pond” in § 125.92 are needlessly restrictive and could cause resour ces to be wasted on constructi ng new intakes with little or no benefit to fish. EPA no longer refers to cooling ponds or includes the cite d restrictions in the final rule. The final rule provides clear guidance to the Director concerning the applicability and determination of closed-cycle cooling where water is withdrawn from impoundments that are also waters of the U.S. See th e preamble for more discussion

.

BTA Requirements for New Units Commenters argued that closed

- cycle cooling should not be the presumptive BTA for new unit s at existing facilities an d that the same standard should apply to both existing and new units. I n other words, a case-by-case approach to entrainment sho uld be applied to new units to take in to account the same site-sp ecific factors evalu ated for existing units. Several commenters also

no ted that th e ratio n ale EPA used to conclude that new units should be treated as existing facilities under Phase II s till appl y today (i.e., factors such as ener g y r equirements as well as site space limitations and site location characteristics th at could affect visibili ty, highway and airport s afety, n o ise, an d salt dr ift ma ke it inappropriate to subject new unit s at existing facilities
to new facility requirements).

EPA disagrees with the comments. As discusse d in Essay 14, the Phase II and Phase III rules

were rema nded and subsequently revised in th is rule based on EPA’s updated analysis. As discussed above and in the preamble, in contrast to existing units, new units, as more narrowly defined in today’s rule, have much greater fl exibility in terms of cooling system design, construction scheduling, and other factors. Thes e factors help minimi ze many of the negative aspects associated with closed-cycle cooling that prompted EPA for the final rule to conclude that it should adopt a site-specific approach for establishing BTA entrainment controls for existing facilities. EPA has discussed above how the factors of land availability, air emissions, and remaining useful life pose less of a barrier when considered in the context of new units. Other factors also support the final new unit pr ovisions. For example, incremental downtime and issues of energy reliability, which can be associat ed with retrofitting to closed-cycle cooling, are avoided altogether at a new unit. In additi on, when new units are a dded condensers can be configured for closed-cycle co oling, reducing energy requirements (by substantially reducing the turbine backpressure energy penalty and associ ated air emissions). High-efficiency cooling towers also can be designed as part of a ne w unit, allowing for smaller cooling towers. As a result of all of these factors, the capital costs for installing clos ed-cycle cooling at new units are lower than the capital costs for installing once-through cooling. (See DCN 10-6651.) EPA notes that one of the reasons that new units were treat ed as existing facilities in the Phase II preamble was that at the time EPA concluded that more stringent regulation might discourage or preclude projects that would improve energy efficiency. In the final rule, new units are defined as added, stand-alone units which are almost always much more fuel effici ent than existing units so this consideration did not militate against adoption of the requirement for performance comparable to

Essay 20 223closed-cycle systems for the new unit flows. With re gard to several of the factors associated with closed-cycle cooling that EPA considered under Ph ase II in its rationale to define new units as existing facilities for purposes of that, now suspended, rule, EPA’s current analysis indicates that, where relevant, these factors can be su fficiently managed. The factors of visibility impairment, highway and airport safety issues, noise abatement issues, salt drift and corrosion problems are not universal for all facilities or all closed-cycle cooling technologies but rather will be of concern only at the portion of the f acilities where the available tower locations are within proximity of certain receptors and wher e the technology under cons ideration involves use of a basic conventional mechanical draft cooling tower. Visibility and highway and airport safety issues are related to the visi ble plume of evaporative cooli ng tower which can generally be resolved through the use of readily available pl ume abatement technology (certain facilities might be able to use an altern ative cooling technology such as dry cooling). Noise may need to be controlled in order to comply with noise ordinances of adjacent communities and can be minimized through the use of readily available no ise abatement technologies. Similarly salt drift and corrosion problems associated with de position of salt on near by equipment can be minimized through the use of readily available high efficiency drift eliminators. Recent developments in salt drift elimination technol ogy has resulted in drift rates as low as 0.0005 percent (of circulating flow) compared to drift rates as high as 0.2 percent for a tower without drift eliminators. See TDD Chapter 10 for a dditional discussion. Each of these technology solutions is available and may add a certain am ount of additional costs but EPA has concluded that these costs are not inordi nate when part of a new cons truction. For a more detailed discussion see Section VI of the preamble. Rega rding the rationale EPA used in Phase II, EPA sought to provide clarity between a new facility and an existing facility (69 FR 41579); EPA is continuing to do so, and today’s final rule does not affect the definition of new facility in the Phase I rule. EPA notes the Phase I rule treated the addition of a new unit for purposes of a different industrial operation as an existing facility only if it used an existing cooling water intake structure whose design inta ke flow was not increased. EPA further notes that there are a wide variety of repowering and uprate activities that an existing facility could undertake while still being regulated as an ‘‘exi sting facility’’ rather than a ‘‘new facility’’ (67 FR 17128). EPA has also maintained this distinction in today’s final rule; see Section I. J of the preamble on new units.

Commenters noted that the 90 percent entrainmen t mortality option is more stringent than the Phase I rule. In particular, EPA requires a 90 pe rcent reduction in “entrainment” in Phase I versus 90 percent reduction in “en trainment mortality” in the proposal noting that entrainment mortality is a subset of entrai nment. EPA disagrees that the new unit requirements are more stringent than Phase I. In evaluating entrai nment mortality, EPA assumes that entrainment mortality is equal to entrainment, unless entrainm ent survival is specifically demonstrated by the facility. See final rule at § 125.96(d)(3), which states that “Mortality after passing the cooling water intake structure must be counted as 100 pe rcent mortality unless you have demonstrated to the approval of the Director that the mortality for each species is less than 100 percent.” The oneto-one relationship between flow reduction and en trainment reduction also applies to entrainment mortality reduction. EPA notes that even when they are not equa l, limited data provided by commenters show they are still close. EPA’s analysis conservatively continues to presume the relationship is one-to-one.

Essay 20 224One commenter also noted that by including th e 94.9 percent and 97.5 percent flow reduction as standards in the definitio n of closed-cycle, that the new un it requirements were more stringent than Phase I. In Phase I, EPA stated that clos ed-cycle cooling reduced flow by a minimum of 70 percent for saltwater systems. This value was ad justed in Phase II to a minimum of 72 percent flow reduction. Commenters then note that a pplying the Track II requirement for comparable performance of 90 percent results in a minimum flow reduction of 85 percent (90 percent of the 94.9 percent flow reduction is 85 per cent). The comments further assert that this is a change to the Phase I rule that EPA cannot lawfully make without giving fair notice or opportunity to comment. EPA disagrees. First, th is definition would not in any wa y change the Phase I rule, as the proposed definition of closed-cycle would have only applied to existing facilities. EPA also notes that the low end of the range of 70 percent reduction cite d in Phase I was given as an example of a worst case situation where site-spe cific water quality based discharge standards limit the chloride content in the blowdown to a maximum increase of 10 percent over background. This worst case scenar io would limit the cycles of concentration of the cooling tower to 1.1. Both the Phase I and Phase II rulemaking records id entify saltwater closed-cycle systems as clearly being capable of operating co oling towers at a cycle of concentration of 1.5 (or greater). This 1.5 cycles of concentration is the level of performa nce equivalent to a 94.9 percent flow reduction. However, this specific co mment is no longer relevant since in the final rule EPA has changed the definition of closed-c ycle so that a facility does not need to demonstrate that it achieved the cited values fo r cycles of concentration and the corresponding percent reduction in flow to es tablish that it is operating a clos ed-cycle recirculating system. Rather, as EPA has explained in the preamble to the final rule, achievement of the cited values for cycles of concentration and flow reductions are indications of a well-operated closed-cycle cooling system. CCRS is define d at § 125.92(c) to mean a system that reuses the water for cooling multiple times, and § 125.92(c)(1) make s it clear that a pr operly operated CCRS withdraws makeup water only to re plenish losses due to blowdown, drift, and evaporation. See Essay 17A for further discussion.

One commenter disagreed with EPA’s claim that“condensers can be configured for closedcycle” when designing a new unit, thus improvi ng energy efficiency. The commenter indicated that, while this might be true for new condensing- steam turbine generators, it is irrelevant to the cooling water needs for many types of new units at manufacturing facilities, such as slag quenching, bearing cooling, or chill ers. Thus, in the commenter’s view, EPA’s assumption that any energy penalty is negligible for such manu facturers is wrong. EPA disagrees, first by noting that the majority of cooling water intakes us ed at manufacturing fa cilities are for power production and, thus, function exac tly like an electric generati ng facility. Second, one of the examples provided by the commenter (slag quenching) is contact cooling a nd, thus, would not be in scope of the rule. Third, b earing cooling does not involve an efficiency loss. The third example, chillers, can be designed to operate at a higher efficiency and thus exceed EPA’s performance for closed-cycle. In contrast to ex isting units, the energy penalty is negligible for new units for the reasons discussed above. Desp ite the failure of the commenter to supply evidence that, in fact, supported its position, EPA ag rees that cooling water uses may be different at some manufacturing facilities and that the ne t effect on system efficiency of using a closedcycle system will vary. EPA maintains that it is reasonable to allow for the consideration of cycles of concentration in dete rmining whether a cooling system is commensurate with closedcycle cooling, noting that in site visits EPA found the more complex manufacturing facilities would be challenged to calculate facility wide flow reductions.

Essay 20 225One commenter noted that there is no equivalent alternative to closed-cyc le, so an alternative compliance track does not exist. EPA disagrees. In the final rule, Under § 125.94 (e)(2) EPA has included a provision similar to Phase I, Track II where a facility can demonstrate compliance if they demonstrate entrainment reductions equivalent to 90 percent or greater of the reduction that could be achieved through closed-c ycle. There are facilities where this level of performance is achievable without using closed-cycle cooling. So me facilities may be cap able of achieving this BTA requirement through a combination of techno logies which may include, but are not limited to, flow reduction, cooling water reuse, fine mesh screens, far offshore locations, and alternative intake location. EPA is aware of facilities that through a “systems of technologies” approach can combine one or more technologies to achieve an overall level of performa nce as required under § 125.94 (e)(2). Specifically for manuf acturers, EPA is aware that many facilities have conducted water audits and already implemented significan t flow reduction and or water reuse practices; EPA expects manufacturers could demonstrate these reductions in flow as part of alternative § 125.94(e)(2). Also, the new unit provision allows the Director to es tablish less stringent alternative requirements for a facility if complia nce with the new unit standards would result in compliance costs wholly out of proportion or woul d result in significant a dverse impacts on local air quality, water resources, or lo cal energy markets. Thus, alternative compliance tracks do exist for new units.

Commenters stated that proposed § 125.94(d)(5 ) (which states: “For cooling water flows specified in paragraph (d) of this section that are not subject to this standard, the Director ma y establish additional BTA standards for entrai nment mortality on a case by case basis”) is unnecessary and unjustified. EPA disagrees. The final rule establishes national BTA standards for impingement and entrainment. To the extent uniform standards cannot be established for a subcategory, BTA standards must be establishe d on a case-by-case basis. For example, contact cooling water at a pulp and paper fa cility is different than quench water at a steel mill, and EPA determined such cooling water was best addre ssed on a case-by-case basis. The withdrawal of any water for cooling may pose an adverse enviro nmental impact, see Essay 14. As such, the rule allows the Director to establish BTA standards fo r entrainment mortality for this flow component on a case-by-case basis. EPA has retained this pr ovision in the final rule for consideration of entrainment mortality requirements, similar to the provision for additional controls for IM as determined by the Director at § 125.94(c).

One commenter stated that “If EPA nevertheless retains special requirements for new units, at a minimum, § 125.94(d)(4) should be revised so that it does not appear optional for the Director to establish alternative requirements even where the compliance costs are wholly out of proportion to the costs EPA considered or there would be significant adverse imp acts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets. ” Within the new unit requirements, the final rule provides that the owner or operator of a facility must comply with any alternative requirements established by the Director pur suant to § 125.98(b)(7). The provisions in § 125.98(b)(7) provide the Director with discretionary authority to establish alternative requirements when specified conditions are met, including a facility demonstrating that its compliance costs under § 125.94(e)(1) or (2) for each new unit would result in compliance costs wholly out of proportion to the co sts EPA considered in establis hing the requirements at issue.

Essay 20 226Where alternative requirements are not establishe d a facility must meet § 125.94(e) for its new units.

Projected Baseline Compliance As part of estimating the costs associated w ith the new unit provisions, EPA projected what would have happened in the future in the absenc e of any rule or closed -cycle requirements for existing facility new units where only the current BPJ (or state program) approach to establishing entrainment mortality requirements are applie d during the NPDES permitting process. This projection is referred to as baseline compliance and is defined as the degree 35 to which new units would have been designed and constructed to util ize closed-cycle cooling or its equivalent. At proposal, EPA assumed a future baseline comp liance rate of 50 per cent based primarily on current overall compliance of existing units. Since proposal, EPA inve stigated baseline compliance further to determine the trend of closed-cycle cooling im plementation over time. Based on new information concerning trends in the industry EPA concluded that baseline compliance would range between 75 percent and 90 percent. For a more detailed discussion, see DCN 12-6672 and Chapter 8 of the TDD.

Many commenters have expresse d concern regarding the im position of closed-cycle requirements for new units at generating faciliti es. EPA’s analysis shows very few new power generating units are constructed in a given ye ar, and further shows that many would have installed closed-cycle cooling in the baseli ne. Thus, while many commenters have expressed concern regarding the imposition of closed-cyc le requirements for new units at generating facilities, the current trends and data indicate that in the future most facilities (between 75 percent and 90 percent) will install closed-cycle cooling for their new units regardless of any final rule requirements.

Implementation Commenters were concerned with how complian ce with the closed-cycle standard would be measured. One commenter indicated that if EPA intends that new units show that their makeup and blowdown flows are consistent with a closed-c ycle cooling system, then it would be clearer to say so. Many were concerned that there is no baseline for comparison in a new unit and that using the actual intake flow (A IF) would be problematic since there may never be an actual baseline flow to measure. EPA agrees that us ing AIF would be problema tic and has revised the new unit standard such that it is based on the design intake flow (DIF). EPA notes that the facility must reduce the design intake flow for the 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 determinati on of closed-cycle cooling may be informed through calculation of the cycles of concentration or monitoring of flow. EPA notes that there is prior implementation experience determining complia nce with the same standards (i.e., elements of Track II) at Phase I facilities since 2004, a nd EPA has modeled the BTA standards for new units after the Phase I rule language.

35 In order to estimate compliance costs and impacts, EPA derived an estimate of the percent of new units that would be designed and constructed using closed-cycle cooling in the absence of any rule.

Essay 20 227Commenters stated that the new unit requirement s should at least be flexible enough to address sites where meeting the requirements is not t echnically feasible (e.g., land availability). Commenters also argued that the purchase of adjacent land shoul d not be a consideration. Other comments suggested EPA should provide guidance, including a clearer definition of what it means for compliance costs to be “wholly out of proportion” stating that the proposed rule is currently quite vague con cerning such waivers. EPA notes that th e rule does not re quire facilities to consider purchase of adjacent land. As disc ussed previously, EPA finds closed-cycle is available, demonstrated, and feasible for new units at existing facilities in the nation as a whole. As discussed above, in Phase I, the final rule a llows for the Director to establish less stringent alternative requirements for a facility if co mpliance with the standards would result in compliance costs wholly out of proportion to thos e EPA considered in establishing the Phase I requirements or would result in significant advers e impacts on local air quality, water resources, or local energy markets. In toda y’s final rule, EPA has included a similar provision providing the Director with the discretion to establish al ternate requirements for each new unit if the requirements 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 advers e impacts on local water resources other than impingement or entrainment, or significant ad verse impacts on local energy markets. Such determinations are necessarily made at the di scretion of the Director and, therefore, EPA disagrees that further guidance on “wholly out of proportion” is necessary at this time.

One commenter expressed concern that the new un it requirements do not appear to consider the circumstance where a new unit is constructed at an existing manufact uring facility where construction of the new unit does no t require any modifications to the existing intake structure. EPA disagrees that the new unit requirements do not consider such circumstances. In evaluating new unit scenarios, EPA recognized that ther e are many circumstances where a new unit may have no impact on flow requirements or require no modifications to the intake structure. This is particularly true in the scenario where a new unit is installed and used in lieu of an existing unit with similar flow requirements. In the commenter’s example of using an ex isting intake structure to provide cooling water for a new unit, the exis ting intake clearly has the capacity to provide water for the new unit. Therefore, the final rule would simply require that the flow provided by the existing intake be a level of flow commens urate with CCRS. The closed-cycle requirement for new units is intended to require the use of BTA flow reduction technology which will have an impact on flow requirements reducing the in take flow with corresponding reductions in impingement mortality and entrainment.

Commenters argued that the effective date of th e new unit provisions should be delayed for a reasonable period of time after the final rule is issued since the proposed rule does not adequately provide for existing projects already well adva nced in the planning, design and permitting process. EPA acknowledges that at promulgation, new units whose construction begins after the effective date of the rule must comply with cl osed-cycle requirements. EPA concluded that there will be few, if any units in the advance planning stages that would likely be adversely affected by this provision for the following reasons. As expl ained above in the discussion of “baseline,” EPA has determined that most new units will alrea dy include closed-cycle cooling. EPA, however, does acknowledge those in which construction be gins soon after this date will have already undergone some level of expense and effort in planning, design, and permitting. The potential added expense of project delay and redesign could apply to thos e units with construction start

Essay 20 228dates soon after the effective date of the rule and will diminish as time passes post-promulgation of the rule. Compared to the cost of the new uni t, EPA does not find that the incremental cost of project redesign poses such a significant hardship as to discourage addition of units. Further, as discussed above, the Director ma y establish alternative requirements where the compliance costs are wholly out of proportion to the costs EPA cons idered or there would be significant adverse impacts on local air quality, significant advers e impacts on local water resources other than impingement or entrainment, or significan t adverse impacts on local energy markets.

Notice and Comment Some commenters stated that “T he Proposed Rule introduces a new concept for EPA regulation of cooling water intake structures: mandatory requ irements for “new units at existing facilities,” which are modeled on requirements for entirely new facilities. EPA has not justified this departure from prior determinations, and the pr ovisions of the Proposed Rule intended to implement the “new unit” concept are confused and should be deleted. EPA would need to repropose “new unit” requirements if it wants to continue with this initiative.” The commenter argued that it is impossible to determine what th e proposed rules would requ ire of facilities that install new units, therefore the commenter has no t been provided with a meaningful opportunity to comment on this aspect of the proposed rule.

EPA disagrees that, in adopting the new unit prov isions, EPA has changed anything in the Phase I rule; nor did it propose any changes to the Phas e I rule. The new unit pr ovision only applies to existing facilities under Subpart J. Only a new facility, as defined in the Phase I rule found under Subpart I at 40 CFR 125 is subjec t to Phase I requirements. The de finition of “existing facility” under Subpart I at § 125.83 makes it cl ear that a facility cannot be both a Phase I new facility and an existing facility at the same time, and EP A did not propose to change the Phase I rule.

EPA disagrees that the public has not had a mean ingful opportunity to comment on this aspect of the proposed rule. Not only did EPA take notice and comment on the definition of new unit, EPA specifically proposed that new uni ts would be subject to a requi rement based on closed-cycle cooling. EPA solicited comment on the general c oncept of new unit, a nd also specifically requested comments on the new unit provision in section XI.22. This includes specifically requesting public comments regarding the clarity of the definition of new unit and whether or not this definition should be expanded to include othe r units such as those that are repowered or rebuilt, or whether new unit provision should be deleted (see 76 FR 22275). EPA received 27 comments regarding the new unit provision, sugg esting that other commenters responded to EPA’s request for comment. EPA also requested comment on the number of new units and the amount of new capacity construction projected but received no specific comm ents related to this issue. Therefore, based on the numerous referen ces to the new unit provisions in the preamble, the proposed regulation text, and the many comments received on the issue, the question of how to define new units and what the requirements fo r new units should be was clearly “on the table” and the final rule reflects a logical outgro wth from the proposal and the comments it generated. See American Coke and Coal Chem ical Inst. v. EPA, 452 F.3d 390, 398-99 (D.C. Cir. 2006). “‘An agency satisfies the notice requirement, and need not conduct a further round of public comment, as long as its final rule is a ‘l ogical outgrowth’ of the rule it originally proposed.’ Northeast Md. Waste Disposal Auth. v.EPA, 358 F.3d 936, 951–52 (D.C.Cir.2004). If interested parties ‘should have anticipated’ that the change was possible, and thus reasonably

Essay 20 229should have filed their comments on the subject during the notice-and-comment period, then the rule is deemed to constitute a logi cal outgrowth of the proposed rule. See City of Waukesha v.EPA, 320 F.3d 228, 245 (D.C.Cir.2003); see also Envtl. Integrity Project v.EPA, 425 F.3d 992, 996 (D.C.Cir.2005); First Am. Discount Corp., 222 F.3d 1008, 1015 (D.C.Cir.2000); Nat’l Mining Ass’n v. Mine Safety & Health Admin., 116 F.3d 520, 531 (D.C.Cir.1997). A petitioner must demonstrate that the agency’s violation of the APA’s notice and comment procedures has resulted in ‘prejudice,’ 5 U.S.C. § 706(2). See generally Chamber of Commerce of the United States v. SEC, 443 F.3d 890, 904 (D.C.Cir.2006).

Essay 20 230

### Essay 21: Development of Compliance Costs

Introduction Section IX of the preamble provides an overall description of the basis and methodology used to derive the compliance costs. A more detailed de scription of the methodol ogy used to derive the model facility site-specific components of th e capital and O&M compliance costs is also provided in Chapter 8 of the Technical Deve lopment Document (TDD). EPA used a model facility approach to develop th e final rule compliance technolo gy cost estimates. The technology modules used to model costs for the impingeme nt mortality reduction technologies are based upon technology modules originally developed for the Phase II Rule which were then modified for the existing facility rule propos al. Since proposal of this rule, EPA adjusted all of the Phase II module costs for inflation and modified some mo dules in response to public comments received as described below. This, for the most part, has re sulted in an increase in the total cost estimate for some model facilities and the industry as a whole compared to the estimates at proposal.

For the cost of closed-cycle cooling technology in the final rule, EPA did not use the Phase II module costs but rather used a closed-cycle cost module presented at pr oposal that was based upon a cost estimation model provided by the Elect ric Power Research Institute (EPRI). EPA adopted this model because the costs are based on numerous facility-specific cost estimates to retrofit an existing facility with once-through coo ling to closed-cycle co oling. Prior to proposal, EPA reviewed the underlying data and developmen t of the estimation mode l and concluded that this model provides a good estimate of the compli ance costs of an option based on closed-cycle cooling; see DCN 12-6656 and Chapter 8 of the TDD. EPA largely adopted the EPRI model for estimating compliance costs in the final rule.

In response to public comments, EPA re-evaluat ed the engineering methodology for determining model facility site-specific costs subsequently used in the economic analysis, and used new information to revise these capital and O& M compliance cost estimates (including the methodology used for assigning technology complianc e modules to model facilities in the costing analysis) for the final rule.

Summary of Changes to Cost Estimation Methodology In response to the public comments and new information, EPA has revised the proposal compliance cost estimation methodology in the following ways for the final rule:

 Capital costs for modified traveling screens wi th a fish return have been increased by 20 percent, reflecting additional cost data from facili ties and vendors.

 The capital cost for the fish handling and re turn component of the modified traveling screens has been increased by a factor of 2, reflecting additional cost data from facilities and vendors.

 For intakes where fish handling and return syst ems may be difficult or costly to install, the capital costs of the fish handling and return component of the modified traveling screens has been increased by a factor of 4.

Essay 21 231 The design through-screen velocity applied in estimating the co sts to install a new larger intake module in the costing analysis has b een decreased from 1.0 fps to 0.5 fps, which effectively increases the capital and O&M cost s by a factor of 2. As a result, this cost reflects a technology compliant with the IM compliance alternative based on low velocity. Since a facility m eeting that compliance alternat ive would not have to meet additional IM technology requirements, th e costs associated with installing and improving the fish handling and return, which were applied in costing this module at proposal, are not necessary and therefore are not included.

 Technology assignment was changed such that modified traveling screens were assigned only to intakes with existing traveling scr eens because the modified traveling screen technology module only included co sts for replacement of exis ting traveling screens and did not include costs for modifications to ci vil structures that may be needed if no existing traveling screens are present.

 Velocity caps alone (i.e., with no specification for an offshor e intake location) were not considered as an IM compliance technology. Therefore facilities with this technology were assigned additional compliance cost s. Existing velocity caps meeting EPA’s definition (including the requis ite minimum distance offshore) are assumed to meet the IM standard, and incurred no further technology costs.

 A capital and O&M compliance module was developed for variable speed pumps (Module 15) in order to provide another method of compliance for facilities whose actual intake velocity is near (but still above) 0.5 f eet per second.

 Costs are adjusted for inflation based on economic model timeframe

Each of these changes is expl ained further in TDD Chapter 8.

All other impingement mortality assumptions and methodologies remain unchanged from proposal. EPA notes that while a small number of f acilities may be able to comply with the IM standard through the de minimis or low capacity utilization provisions, it did not assume any facilities would comply in either manner. To the exte nt that facilities may be able to comply with these provisions, EPA has overestim ated costs for such facilities.

The cost estimation methodology for closed-cyc le cooling systems and other technology modules remain unchanged from proposal.

IM Technology Cost Development

Baseline Compliance Several commenters made general arguments that EPA had, for the proposal, overestimated the number of facilities considered already in compliance with the impingement mortality BTA standard. EPA disagrees. First, EPA based the dete rminations for the model facilities on survey data from actual facilities. This data was colle cted in the year 2000 and does not include more recent improvements made at facili ties in anticipation of more stringent standards. In that respect, EPA may have underestimated the number of compliant facilities since EPA’s estimates do not include recent technology upgrades that have been made at a facility or required by

Essay 21 232permitting authorities. Second, in evaluating existing technologies for compliance for the final rule, EPA was careful only to designate specific technologies as IM compliant such as existing wedgewire screens (since most have design velo city of 0.5 fps), intakes with a design throughscreen velocity ≤ 0.5 fps, existing velocity caps if they were far offshore, and closed-cycle cooling (if all units served by th e intake were closed-cycle). Modified traveling screens (as defined in the final regulation) were also assume d to have no additional technology capital costs; EPA used a relatively conservative approach and only considered those employing the key elements of a modified traveling screen repo rted in the 2000 survey, including a low pressure spray, fish buckets and a separate fish return as meeting the definition of modified traveling screens for purposes of costing. 36

The third reason EPA disagrees th at it overestimated baseline comp liance is that, for the final rule, EPA has included a greater degree of flexib ility in the IM compliance standards allowing facilities, even individual intakes, to comply vi a a number of different alternatives, including one that allows for consideration of the combined impact of multiple technologies and operational measures (see preamble Section IV). EPA lacks th e complete site-specific data to consider compliance based on combined systems of technologi es. For example, the survey data shows that 7 percent of facilities employ behavioral deterrence or fish avoidance systems. EPA does not have adequate performance data for each of thes e systems, nor does EPA have the site-specific biological data on which to determine whether th e facility’s existing technologies meet the IM standard. EPA also expects some facilities will be able to take credit for their intake location (e.g., offshore submerged), flow re ductions (e.g., seasonal operations or variable speed drives), new technologies (e.g., WIP screens, rotary screens) , or credits for reused or recycled process water used as cooling water. Thus, while facili ties with these control technologies may already meet the IM standard, EPA has assumed for cos ting purposes that none of these technologies contribute to compliance with the final IM standa rd. Further, in the costing EPA did not assume any facilities would have zero compliance techno logy costs as a result of a site-specific “de minimis” or low capacity utilization determination.

In particular, some commenters cited concern th at EPA assumed facilities that reported a design through-screen velocity ≤ 0.5 fps may not be able to meet the low velocity compliance alternative at minimum water depth and that facilities simply reporting traveling screen s with a fish return may not in fact have the full array of features required by the proposed rule to meet the IM requirement. For the final rule analyses, EPA disa grees that the number of facilities considered as already compliant via the low velocity compliance alternative are overestimated. In response to comments concerning existing intake compliance with the low velocity compliance alternative, EPA examined the methodology used and design through-screen velocity and water depth data reported (see DCN 12-66 02). EPA found that it assigned a total of only 11 percent of model facilities compliant with the IM standard via the low velocity compliance alternative. This 11 percent breaks down as follows: 2 percent are es timated to have the reported the velocity based on critical low flow and s hould therefore be equivalent to the maximum velocity possible; 5 percent reported a velocity enough below 0.5 fp s that even if the mean water depth were

36 In the final rule, modified traveling screens are not deemed IM compliant but are included here because the technologies listed are those that were assigned no complia nce costs for technology upgr ades. While no capital costs were assigned, these model facility intakes were assigned costs for the optimization study as were those facilities with intakes assigned traveling screens upgrade costs.

Essay 21 233reduced by 30 percent, the veloc ity would still be compliant; and 1 percent used submerged wedgewire screens where water depth is irreleva nt. EPA concluded that many of the remaining 3 percent could meet the IM st andard by measuring their actua l intake velocity (40 CFR 125.94(c)(3)) in lieu of the design velocity compliance alternative (40 CFR 125.94(c)(2)). EPA agrees that some of these fac ilities may not be able to achieve an intake velocity of 0.5 fps without additional costs, and has included the co st of variable speed pump retrofits for these facilities. EPA concludes this is reasonable beca use these facilities have actual intake velocities that are close to 0.5 fps, and therefore installing variable speed pumps will allow these facilities to ensure the actual velocity stays below 0.5 fp s during periods of low flow. EPA notes that 39 percent of facilities did not re port velocity data; therefore EP A conservatively assumed all of them were greater than 0.5 fps. Thus, while ther e may be some instances where model facilities deemed IM compliant by EPA may actually requir e some compliance upgrades, there are also many other instances where EPA’s conservative approach results in costs for technology upgrades that may not be necessary. Further, ther e are likely instances where facilities that did not report velocity data can in fact comply with one of th e intake velocity compliance alternatives with no addi tional costs (40 CFR 125.94(c )(3) or 40 CFR 125.94(c)(2)).

Regarding the concern that facilities with fish returns may not have the full array of modified traveling screen features, see the baseline compliance section below.

In the case of velocity caps, one commenter noted that EPA appears to assume that velocity caps will comply because they met the low velocity compliance alternative but that many do not and may incur costs associated with entrapment. Th ere are three scenarios where velocity caps are addressed by the final rule. In the first scenario, the design or actual intake velocity is below 0.5 fps, and the facility can choose one of the two intake velocity alte rnatives discussed above. In the second scenario, where the velocity cap is far offs hore as defined in the re gulation as 800 ft or more, EPA’s data shows that the combination of an offshore location and the behavioral deterrent effect of the velocity cap design result in performance equal or greater than IM BTA. See preamble Section VI for furt her discussion. EPA has revised th e final rule to provide that offshore existing velocity caps (meeting the final rule’s definition) will comply based on intake location and intake structure design (but NOT velocity as indicated by commenters). EPA’s assumptions about existing velocity caps as m eeting the IM requirements for costing purposes are consistent with the rule’s definitions. Onlythose existing velocity caps that meet the definition of offshore included as pre-approved in the final rule are assumed to be compliant. Further, EPA has removed specific entrapment requi rements for reasons stated in the final rule preamble Section VI. In the third scenario, EPA allo ws the possibility that a velocity cap is built after issuance of the final rule. A facility could choose to demonstrate that the velocity cap meets the IM standard via the compliance alternativ es 40 CFR 125.94(c)(6) or 40 CFR 125.94(c)(7). EPA did not assume any facilities will choose to do this, and has not costed any facilities to install a new velocity cap. Upon re view of all three scenarios, EP A is confident that its costing methodology for existing offshore velocity caps is consistent with and reflects the final rule.

Costing Technology Selection Commenters expressed concern that EPA estimated costs only for a relatively small range of selected technologies and that upg raded modified traveling screens may not be able to meet the standards. EPA recognizes that it has relied on a simplified approach to model the costs to

Essay 21 234comply with the IM standard and that to deve lop costs that accurately represent the compliance approach for some facilities would have required a more detailed site-specific analysis. Reliance on the simplified model was, in part, due to th e lack of the necessary detailed site-specific information. Lacking this information, EPA coul d not tailor the techno logy selection for its costing analysis to meet site-s pecific conditions to ensure co mpliance. Rather, EPA selected from a suite of technologies th at are anticipated to be comp liant in many circumstances and would apply in a variety of situations. These tech nologies are representative of a wide range of costs. EPA estimated costs for modified traveli ng screens with fish retu rns where this technology was clearly available (i.e., intakes with existing traveling screens that did not have very high through-screen velocities 37 ). Where modified traveling screens were not the most cost-effective compliance path or where such screens may not be the sele cted alternative , costs are estimated for technologies that could easily meet the veloci ty compliance alternatives such as wedgewire screens and new larger intakes because they have relatively high compliance costs and could serve as conservative surrogates for the possible range of technol ogies that ultimately may be employed. EPA applied these technologies, partic ularly wedgewire screens, based on certain site-specific conditions such as waterbody type, design intake flow, and water depth. 38 EPA recognizes that, in many cases where these t echnology modules are assigned, a lower cost technology or mix of technologies ma y be a more cost effective appr oach for facilities to meet the IM standards. EPA has included a high degree of flexibility in meeting the IM standard by providing multiple pathways for compliance including one that gives credit for combinations of technologies and operational measures (see Secti on IV of the preamble). EPA fully expects facilities will evaluate each IM compliance al ternative and select the most cost-effective approach to compliance. Using information in the record, EPA was able to determine a technology that was likely feasible for a model fa cility, but EPA recognizes that a facility could select another compliance approach because it is less costly. Therefore, while facilities may not elect to comply using wedgewire sc reens or larger intakes, if the facilities can b ear the costs of these expensive technologies, then EPA reasona bly concludes the facilities can afford less expensive technologies.

One commenter stated that EPA overestimated th e number of facilities that could comply via modified traveling screens because they would have difficulty meeting the 12 percent proposed annual impingement standard. As a result, commen ters assert EPA underestimated the number of facilities that would need to comply via the mo re costly low velocity compliance alternative.

37 EPA was concerned that some intakes with traveling screens may include design parameters that are outside the range typically employed. For example, intakes in high sediment load waters may use unusually high intake velocities to avoid sediment drop out in front of the inta ke. Performance data from facilities with traveling screens and high sediment waters do not show that the high velocity, in most cases, results in any diminished performance. However, in response to comme nts, EPA has not been able to rule out the possibility. Accordingly, the final rule at 40 CFR 125.94(c)(5) provides that the Director will review the impingement technology performance optimization study at 40 CFR 122.21(r)(6)(i), and then the Director will determine whether the modified traveling screens is the best technology available for impingement reduction at the site. For purposes of costing this provision, EPA conservatively assumed that having a through-screen velocity of greater than 3.0 fps provides a criterion for identifying intakes with traveling screens where an alternative techno logy may be necessary. As indicated above, such traveling screens (when upgraded) likely would meet the BTA requirements , but EPA has included this higher cost option for a select subset of model facilities to accoun t for instances where other mo re costly technologies may be more required.
38 Wedgewire screens were only assigned to those intakes where design considerations such as screen size, water depth, and waterbody type indicated sweeping velocities are compatible with basic technology limitations.

Essay 21 235EPA disagrees that it has underestimated costs in th is way for the final rule. First, EPA notes the numeric IM performance standard has been revi sed; there is no longer a monthly standard, and the numeric IM performance standard has been revised to represent a 12-month level of performance. See Section VI and Essay 16A for more information. Second, in the final rule EPA has established seven alternative impingement standard compliance pathways and only one of these alternatives relies u pon monitoring to meet the numeric impingement mortality performance standard. Compliance alternative 40 CFR 125.94(c)(5) specifically addresses modified traveling screens. As discussed in Section VIII of the preamble, EPA estimates that a very small portion of facilities will select monthly biological monitoring to demonstrate compliance with the numeric IM performance st andard. EPA has provided the IM performance standard as a performance benchmark for all BTA technologies, including new and innovative technologies yet to be demonstrated. As a result , facilities have much more flexibility in achieving compliance, eliminating the concerns raised by the commenter related to the limited choices available for compliance. See Section VI of the preamble for more information.

In the proposed rule, EPA required performance e quivalent to barrier nets as a technology to minimize the impingement of shellfish at estuarine and marine intakes. Several commenters noted that at proposal, barrier ne t costs were not included for certa in facilities on tidal rivers and others stated that the requirement is not neces sary. At proposal, due to the limitations of the survey data, EPA used additional data to disti nguish intakes on brackish tidal rivers from those on freshwater rivers or streams and assigned wa terbody type and technol ogies accordingly. Some waterbody type designations may vary from those of the commenters. In the final rule, EPA is no longer including a separate require ment to reduce IM of shellfish at estuarine and marine intakes because the revised average percen t survival performance standard accounts for shellfish as it includes data on shellfish survival. See Essay 18 and Section VI of the preamble for more information. Accordingly, in the final rule comp liance cost analysis, EPA included barrier net costs for intakes in marine environments. 39 EPA notes that the final rule allows the Director to establish additional requirements, such as barrier nets, for protection of shellfish at 40 CFR 125.94(c)(8). The Director may also establish additional measures for other species at 40 CFR 125.94(c)(9). EPA’s cost estimates appropriately do not include cost s that may result from these additional site-specific determinations because EPA cannot predetermine the outcome of such determinations and the final rule does not prescribe a particular requirement. See TDD Chapter 8 for more details on EPA’s costing approach specific to marine environments.

Many commenters stated that the lo w velocity compliance alternative is inflexible and cannot be met without high costs, or perhaps not at all. EPA agrees that at certain facilities, compliance via the low velocity compliance alternative may not be feasible or the most cost-effective way to meet the IM standard. The final rule does not require facilities to meet a low velocity requirement. Rather, low velocity alternatives (on a DIF or AIF basis) are two out of seven compliance alternatives for the IM standard. Fu rther, the low velocity compliance alternative itself is flexible in that it allo ws for either compliance via the de sign intake flow (thus indicating the maximum intake velocity based on the intake design) in which case no further monitoring is required; or via the actual intake flow where facilities that cons istently operate below the design intake flow volume may demonstrate via monito ring the facility’s actual intake flow. As

39 EPA did not include costs for barrier ne ts for intakes in freshwater streams because data indicate shellfish are not present in these waters.

Essay 21 236discussed above, in the compliance cost analysis , for many of the intakes that did not employ existing traveling screens and where the low ve locity alternative could not be met without modifying the intake, EPA assigned costs for a new larger intake or submerged wedgewire screens with a design thr ough-screen velocity of 0.5 fps. EPA agrees that for intakes where the existing screen area is too small to comply with th e low velocity alternative that construction of a larger or submerged intake represent a fairly high cost option compared to upgraded traveling screens. In this regard, EPA views the cost analysis as conservativ e, as discussed above.

Technology Costs

– Overarching Comments Some commenters argued th at EPA’s cost estimates for IM and EM technologies are flawed because they are based on large facilities and then scaled down for smaller facilities such as manufacturers that use as little as 2 mgd. EPA di sagrees. In theory, extrapolating a cost curve towards zero or infinity results in unreasonabl e results. However, EPA’s cost models have two boundaries to avoid such conditions. First, the cost curves are not applied to intake flows below 2 mgd. Second, for several technologies, the cost t ool imposes a minimum cost below a specified point (or in this case, below a certain threshold). 40 If EPA does not have costing data for a specific technology below a certain intake flow, it used the cos ting data for the lowest flow available. For example, for variable speed pum ps, all intakes less than 10,000 gpm received the same cost as that was the lowest intake volum e for which EPA had costing data. This likely overstates costs for lower flow f acilities, but EPA does not have th e data to refine this cost assumption any further. See TDD Chapter 8 for information on thresholds for various technologies. Furthermore, EPA’s technology module cost estimates generally use equations based on costs curves that were derived using te chnology scenarios of varying sizes; as a result, EPA is already considering the possibility of high er unit costs at lower flows. The exceptions are those cost modules that used linear equations (closed-cycle and variable speed pumps), which were derived for larger systems and would have underestimated technology costs for low flow intakes if EPA had not established minimum cost s below certain intake volumes as described above. More specifically, to account for the possi ble underestimation of variable speed pump costs, a minimum capital cost was established such that the lowest flow fa cility costs would not be understated. For module 15, for design flows below 10,000 gpm (or about 14 mgd), the minimum costs are set equal to the capital cost value for a 10,000 gpm system (rather than using the equation).

Commenters on the proposal noted that EPA had assumed no incremental costs to meet the “no entrapment” requirement. This is appropriate for the final rule because the final rule did not establish any additional requirements for en trapment. See Essay 18 for more discussion regarding entrapment.

Some commenters on the pr oposal stated that for its earlier analysis, EPA has underestimated the costs of traveling screens. Several compared the costs derived using the EPA cost tool to vendorquoted costs and noted that for their intakes, their estimated capital costs ranged from about 44 percent to several times greater than EPAs model costs. Some of these are discussed in greater detail below. EPA considered these comments, as well as new information including a review of

40 For traveling screens a minimum screen width was imposed and for variable speed pumps a minimum cost was imposed for intakes less than 10,000 gpm. See TDD Chapter 8.

Essay 21 237actual traveling screen replacement costs obtained during site visits (see DCN 12-6654) and agrees with commenters that some cost adjustment s are warranted. As a result of the revised cost data, for the final rule, the capital cost of tr aveling screens has incr eased by a factor of 20 percent. See preamble Section V for further disc ussion of changes in costs since proposal. EPA also re-evaluated the co sts of the fish handling and return co mponent in light of public comments arguing that some facilities may en counter site-specific difficulties in the design of a fish return. Upon review of the newly provided facility an d vendor data, EPA concluded that the proposal cost estimates represented an “easy” retrofit situ ation. However, EPA has little data that singles out the capital and installation cost of just the fi sh return. One cost set indicative of a “somewhat difficult” level installation for a fish return wa s about 3 times EPA’s cost, whereas another data set for a “low difficulty” level installation was f ound to be similar to EPA’s cost. To account for a small subset of more difficult situations, EPA increased the fish return and spraywater pumps capital cost resulting in a total final capital cost that is four times the co sts at proposal for these components (i.e., fish return and spraywater pumps). This allows for “difficult” level installation costs consistent with the new da ta, and results in a cost for th e “non-difficult” fish return and spraywater pump that is twi ce that of proposal. For details, see TDD Chapter 8. In order to confirm the validity of the revise d traveling screen cost estimates, EPA compared actual costs for traveling screen replacement obtai ned during site visits with the revised cost model results and concluded that the EPA costs are comparable (see DCN 12-6654).

One commenter (UWAG comment 2210, which represen ts the power industry) argued that EPA underestimated the O&M costs for traveling screen s. They note that th e costs should include: labor hours needed to maintain the fish collection and return systems; installation costs including (for example) crane costs associ ated with screen removal or in take bay dewatering during major overhauls; spray water system replacement and overh aul; and fish return system replacement due to cracking and erosion. EPA di sagrees that it has underestimated O&M costs for traveling screens and concluded that th e traveling screen O&M cost modules represent a reasonable estimate of average O&M costs. The O&M cost s are based on labor hours cited by a vendor which includes system overhauls of the traveli ng screens and the spray systems, both of which are integral components of the sy stem. The O&M costs also include material costs for equipment replacement components that are based on a percenta ge of equipment costs. This percentage is also based on a vendor recommendation. EPA howev er, did not include costs of dewatering since facilities with most intakes ar e already equipped with stop logs or gate s that facilitate dewatering, and EPA found in si te visits that most facilities have the ability to continue facility operations while a specific forebay is removed fro m service. EPA also not es that this technology cost was only assigned to intakes with existing traveling screens and that the O&M costs are incremental costs. Some of the components c ited such as screen ove rhaul and installation, dewatering, and spray system (high pressure) were already being performe d prior to the upgrade and thus should not be included in the cost estimate. While the existing screens may not be designed for continuous operation and would re quire more frequent overhaul if operated continuously, EPA included costs for complete re placement using screens with a more robust design that minimizes maintenance due to wear. Other costs associated with new components are included in the vendor estimates which were described as the net increase over current conditions. Therefore, EPA has concluded any incremental costs were included in the O&M estimates. EPA notes the commenter did not provide any specific data on this issue. EPA also did not include costs of a crane sinc e the actual need for a crane and the frequency of use can be highly variable. Further, EPA expects such construction work would be done during outage

Essay 21 238periods, during other construction activities, and on a schedule determined by the Director that would reflect any additional c ontrols for entrainment (see preamble Section IX for more discussion on compliance schedules). In most cases , any work is expected to occur when heavy equipment is already available. Therefore, m obilization and transportation costs for heavy equipment would not be an incremental cost resu lting from the requirements of this final rule. Further, EPA has included a contingency factor in the cost analysis to reflect those site-specific instances where costs may be inadvert ently understated; s ee TDD Chapter 8.

Another commenter on the proposal (commenter 2171) stated that O&M costs assumed by the EPA for modified traveling water screens were underestimated, and EPA did not include cost and maintenance of replacement fixed screens wh en screens are sent offsite for overhaul and replacement. As discussed above, maintenance overhaul of traveling screens is an activity that is already performed for the existing screens and thus should not be in cluded, regardless of methodology employed. EPA based screen replacement costs on vendor quotes for a typical replacement, which should not require an exte nded period of fixed sc reen use under normal circumstances. EPA notes the commenters provided no supporting data for their assertions. Based on further review, EPA has concluded that the O&M costs estimates it used for the final rule are reasonable estimates be cause they are based on vendor quotes and available data rather than unsupported assertions. Since no detailed in formation or cost data has been received by EPA to suggest that traveling screen O&M cost s are underestimated, EPA disagrees with these
comments.

UWAG stated that EPA’s barrier net costs are low, arguing that costs for components such as pilings and O&M cost are underes timated. They note that in TDD Chapter 12-2, EPA claims that if all 139 tidal facilities in stalled barrier nets the costs would be only $4,010,000 ($28,849 per facility) and UWAG stated that it was unclear whet her the cost basis was total or annualized and whether it included O&M costs. A Southern Co mpany (comment 2190) estimate suggested that the capital costs for barrier nets on oceans and tida l waters to minimize impingement of shellfish from existing water flow would be $4,000 per cfs (equal to approximately $9 per gpm). Based on the discussion below, EPA disagrees that the cost estimates for barrier nets are underestimated. EPA notes that the barrier net costs shown in T DD Chapter 12-2 for the final rule are annualized costs, which include (and are la rgely driven by) O&M. The O&M is primarily associated with removal/deployment, repair, and replacement of th e barrier nets. EPA based the cost estimates for barrier nets in estuarine environments on cost information provided by Chalk Point that reflect the actual design and opera tion at their facility. EPA concl uded that the barrier nets at Chalk Point (which includes a robust design with tw o concentric nets and fixed pilings) that have demonstrated an 80 percent reduction in IM ar e well-suited for use as an example of a wellfunctioning barrier net in an es tuarine environment. Chalk Poin t did not provide information on installation costs for the pilings. Instead, EPA based its estimate for initial barrier net installation on more general unit cost data for marine pilings installation. The final rule barrier net costs were adapted from the Phase II cost module and a desc ription of the derivatio n of costs can found in Chapter 4.1 of Phase II TDD. The design flow for the Chalk Point Plant was greater than 800,000 gpm and the Phase II TDD Table 4-7 shows that for a 20 ft deep net, an intake with a design flow of 807,840 gpm would need 152 pilings at a cost of $162,792 plus 20 percent ($32,558) or $195,350 in 2002 dollars. A comparable cost estimate for Chalk Point derived using the EPA final rule cost tool results in a total capital cost of a pproximately $220,000 and an annual O&M of approximately $92,000 in 2009 dollars. UWAG cited a cost of $200,000 (2006

Essay 21 239dollars) for the actual piling design at Chalk Poin t which demonstrates that EPA’s estimate for barrier net support structure inst allation tends to conform with the commenter’s estimate. EPA’s final estimated costs for barrier nets include a substantial component for O&M that includes labor costs for routine maintenance, seasonal de ployment, and annual replacement of 1/3 of the net each year (see Chapter 4.2 of the Phase II TDD). These costs are based on costs cited by Chalk Point for use of a contractor to periodically rem ove and replace the nets with clean nets, plus replacement costs for damaged nets and therefore EPA’s barrier net costs include O&M costs that are reflective of act ual cost of a well-functioning barrier net. The O&M costs of $75,000 to $88,000 (2006 dollars) per year to control biofouling at Chalk Point cited by UWAG is very similar to the comparable EPA O& M cost of $83,250 (2002 dollars). The 20 ft depth scenario was used as a default costing assumpti on for all ocean and estuar ine intakes. Southern Company cited capital cost rate is nearly an order of magnitude higher than comparable EPA cost estimates. They provide no description of th e basis for their cost estimate and therefore cannot be directly compared. As described above, the EPA cost estimates are based on a detailed breakdown of cost components, a portion of whic h is confirmed by cost data cited by UWAG.

Comments Concerning Capital Costs for Specific Facilities EPA recognizes that for individu al facilities, actual costs ma y be higher or lower than the average based on site-specific conditions. However, for purposes of national rule cost estimates, the cost model based on average costs provides a reasonable approach since these differences will tend to balance out. The final rule includ es many compliance alternatives in addition to those included in the proposal and that these al ternatives may provide less costly approaches to meeting the IM standard than anticipated at prop osal. Recognizing that e ach of these companies may reconsider their compliance approach in lig ht of the additional compliance alternatives, EPA is responding to th e specific comments.

Many commenters provided total compliance cost esti mates for one or more facilities in support of their argument that EPA underestimated the co sts. In many cases, EPA is unable to directly respond to these comments since the commenters provided only total costs and did not include any supporting data or detailed information desc ribing system design or how the cost estimates were developed. In other cases, f acilities included total costs that also included costs to comply with other rules (such as the Utility Air Toxics rule) and EPA was unable to determine whether the costs were related to complying with today’s ru le or the other rule. It is not appropriate to include compliance costs for other rules in de veloping the incremental compliance costs for today’s rule. Such costs were already considered in EPA’s compliance cost estimates for those final rules.

The Wisconsin Public Service Corporation provided estimated aggregate O&M cost for continuously operated traveling screens at their Pulliam Plant of $240,000 and $330,000 at their Weston Plant. They compare these costs to “agency’s site specific estimated O&M costs for the J.P. Pulliam and Weston Generating faciliti es are $271,000 and $88,000, respectively.” EPA is unable to respond to these estimates in a de tailed manner since the commenter provides no details regarding the source of the EPA estimates they cited and/or how they were derived. Further, no details regarding the derivation of thei r own estimates were provided except that they include costs for increased power and mainte nance/repairs assuming the traveling screens operate continuously when pumps are in service. EPA notes that these two facilities completed

Essay 21 240short technical surveys only and ar e therefore not included in the model facility estimates for the final rule. However, the commenters O&M estimate for the Pulliam appear to be in agreement with the EPA estimate they cited. EPA notes that flow is a major input value driving costs and based on technical survey data, th e design intake and average intake flow for the Weston is about 3 times that for the Pulliam. The commenter failed to provide information (nor does EPA have any other site-specific information) that w ould explain why their own O&M estimate for a facility with 1/3 the flow volume would have O&M cost that is only decreased by 38 percent from that of the larger facility. As a result, EPA disagrees with the co mment and did not make changes to its cost methodology or to any facility-specific costs.

A comment from ConocoPhillips Company, Bayway Refinery stated that total replacement of traveling screens at Bayway refinery would co st $5-10 million (including screen replacement, engineering reviews, and configura tion of a fish return but not in cluding screens for the reservoir intake or barrier nets). The commenter provided an overall estimate but did not similarly provide estimates of the individual components included in that total. For the final rule, EPA estimates that the capital cost to comply with the IM sta ndard via replacement of existing traveling screens with modified traveling screens including the addition of a fish return would be $3.6 million. EPA acknowledges the difference in the two capital cost estimates . However, EPA is unable to determine why the EPA and Conoco cost estimates differ because the comme nter did not provide any supporting data or detailed information desc ribing system design or how the cost estimates were developed. It is also uncle ar whether the commenter’s data reflects incremental costs or a full replacement of the entire in take structure. In absence of more specific information (which the facility did not provide), EPA concludes its cost estimate is a reasonable reflection of probable costs for the facility.

A comment from the Astoria Generating Compa ny (comment 2193) stated that the projected capital cost for retrofit of the screens for Un its 30, 40, and 50 at Astoria Generating Station for the facility is $9.75 million. The facility did not provide any detailed information on the components included in that cost or informati on on how it developed its costs and EPA does not have specific data concerning the size and numbe r of screens employed. EPA notes that if units 30, 40, and 50 each utilize two 10-ft wi de screens (which is a typica l configuration for facilities this size), the corresponding EPA projected capital costs for modified screens with fish returns would be approximately $5.7 million for 50-ft tall screens in 2009 dollars. EPA acknowledges the difference in the two capital cost estimates. However, EPA is unable to determine why the EPA and Astoria cost estimates differ because the commenter did not provide any supporting data or detailed information describing system design or how its cost estimates were developed. In absence of more specific information which the facility did not provide, EPA concludes its cost estimate is a reasonable reflection of probable costs for the facility.

The Astoria Generating Station has estimated that an additional 4 bays of similar configuration to the existing bays would be required at AGS if th ey were required to attain a through-screen velocity of less than 0.5 fps. They estimat ed the costs would be $32.9 million based on a complete reconstruction of the intake structure a nd inclusion of modified traveling screens and a fish return. EPA notes that the compliance technology design proposed by Astoria in this instance consist of modified traveling screens, a fi sh return, and a reconfigur ation to 0.5 fps. This facility would likely install modified traveling sc reens or reconfigure its system to comply via the low velocity compliance alternative, but not both. This compliance response goes beyond the

Essay 21 241final rule IM requirements. As such, the cost estimate provided by this facility is, by its very nature, higher than EPA’s estimate. Having said that, EPA applied its costing modules to the scenario described by the commenter. Based on th e available design throu gh-screen velocity of 1.0 to 1.1 fps reported for the intake s at this facility, EPA estimates that a total screen width of around 100 ft or more would be needed to meet the 0.5 fps compliance alternative. Assuming a total screen width of 100 ft, EPA has calculated capital costs for a larger intake with traveling screens (Module 10.2) would be approximately $22 million. These costs do not include modified traveling screens or fish return s because the larger intake is built to meet the 0.5 fps velocity compliance alternative. Consequently, the corr esponding cost to meet only the low velocity alternative for the Astoria Generating Station should be significantly less than the $32.9 million cited.

A comment for Cook Nuclear Plan t provided a capital cost esti mate for a fish return and handling system of over $3 million dollars. Furthe r, the comment urges EPA to acknowledge that fish collection and return systems are not easy, potentially not feasible , and inexpensive to retrofit at some facilities. They explain that the Cook Nuclear Plant operates seasonally a fish deterrent system that uses high frequency sound to repel fish, particularly species of the Clupeidae family. They state that the combination of its velocity cap, its offshore intake location, and its fish deterrent system would likely elimin ate the need for a fish collection and return system, and the Cook Nuclear Plan t expects that it could demons trate an equivalent level of mortality reduction, consistent with EPA’s goals for the 316(b) rule. EPA agrees that fish returns may be more challenging to install at some site s, but maintains that th e technology is available and demonstrated. Further, EPA has adjusted the cost of fish returns as de scribed above to reflect more difficult installations. However, EPA agrees with the commenter that they may not need to install a fish return and handling system. As e xplained in the preamble, the final rule provides seven compliance alternatives fo r demonstrating compliance with the IM standard, several of which are potentially relevant at the example facility described in the comments: existing velocity cap, intake velocity, and the “system of technologies.” See the preamble for further discussion of the alternatives. Because, similar to the facility, EPA expect s the facility would not need to install a fish return and handling system and would not incur such costs, EPA appropriately did not estimate costs for this facili ty to add a fish return or handling system and the facility’s estimate is not relevant.

The Eastman Company presented a $20 million cost estimate for traveling screens for their Tennessee facility and argues that these costs ar e much higher than costs derived by EPA. They perform comparisons to two different EPA cost estimates. The first EPA estimate used for comparison to their $20 million estimate was derived using the impingement compliance technology cost factors in Exhibits 8-19 of the proposal TDD that EPA used in the IPM model analysis which derives costs by multiplying design flow (in gpm) by a factor. 41 This cost factor is based on total costs and total design flow and represents an average for all facilities on a national basis. While EPA did revise the correspondi ng impingement technology costs for traveling screens in response to comments in the final ru le such that the IPM capital cost factor representing the average technol ogy costs increased from $13.1/gpm to $20/gpm, the equivalent

41 As part of the economic analysis, EPA used the Integr ated Planning Model (IPM) to estimate economic impacts. To facilitate the modeling runs, EPA developed specific cost equations; see Chapter 8 of the TDD for more information.

Essay 21 242cost of roughly $10 million for the Eastman f acility was still only about half the Eastman estimate. As the commenter is comparing a site-s pecific cost to one EPA developed to represent a national average, EPA would expect that some site-specific costs w ould be higher (and some would be lower) than those pr edicted by a national average.

The second EPA estimate used for comparis on by Eastman Company to their $20 million estimated capital costs for freshw ater modified traveling screen s was presented in Exhibit 3-27 of the Phase III TDD. EPA agrees that the cost s and methodology presented in Exhibit 3-27 were the basis for the cost equations used to deve lop costs estimates for the proposed and final existing facilities rule but notes that the costs in Exhibit 3-27 ar e in 2002 dollars and that, based on the ENR CCI, the costs should be increase d using a corresponding inflation factor for adjusting 2002 to 2011 dollars of 1.4 (9070/6538) be fore the commenter can reasonably compare the costs. For the final rule EPA has adjusted th e capital costs for traveling screens based on data such as vendor data and facility data such as that provided by the commenter. Eastman notes that they intend to use dual flow screens which, as described in the Phase II TDD, EPA had concluded would add an additional 20 percent to the capital costs but would result in lower facility operating and maintenance costs due to reduced debris carryover which would not be reflected in the traveling screen O&M costs. When these adjustments are incorporated, their original EPA estimate increase from $4.5 million to around $10 million.

Insufficient data is available for EPA to verify the cost components including the screen costs cited in comments. However, one assumption that drives Eastman’s estimate up is their inclusion of a contingency factor of 30 percent. EPA disagr ees with Eastman’s use of a contingency factor of 30 percent. Contingency factors are added to reflect unexpected costs that may occur. Typically, contingency factors reflect the complex ity and the degree of uncertainty regarding the scope of the work being performed. That is, a more complex application and especially one where the scope of various components and ta sks have a high degree of uncertainty would include higher contingency factors that less complex a nd uncertain applications. 42 In the modified traveling screen cost module, EPA used a contingency factor of 10 percent reflecting a more reasonable contingency rate for an aver age facility because tr aveling screen upgrades involve replacement of existing technology with no major modification of existing civil structures. The technology is well-demonstrated , well-understood, retrofit of such technology is already done by the industry, and therefore the uncertainty of costs is relatively low. A higher contingency factor such as th at described by the commenter w ould be appropriate where the technology is poorly understood, undem onstrated, or uncertainty a bout the retrofit process was extremely high. The commenter goes on to point out that the overall EPA methodology may be accurate for some average facili ties, and EPA agrees with the comment. The commenter goes on to assert that the cost to retr ofit large pieces of new equipment in to very old buildings will often far exceed the median estimated cost for an aver age facility. Eastman notes that many of their intakes were built in the 1920s, 1930s, and 1960s. EPA not es that the estimated costs of this rule are incremental costs, and are not intended to represent the costs of other upgrades a facility may need to undertake or, in the absence of any rule , choose to undertake. EPA notes that this may explain Eastman’s use of an additional 30 percen t cost increase applied to equipment costs for

42 For example, projects where civil struct ures must be modified or constructed and where strategies for dealing with interference with existing utilities and structures have not been fully developed will involve a higher degree of complexity and uncertainty.

Essay 21 243“Civil / Structural, Concrete, Steel and Misc.” EPA considers this cost high as compared to the average facility which is the basis for EPA’s estimates. EPA also notes that Eastman included 2 percent escalation factor over a seven year period (2011-2018) which increased costs by 14 percent or another $2 million. Escalation is used to account for increases in the price of goods and services over time and typically is include d to account for increases during the duration of the project. EPA does consider such costs in the economic analysis but not in the overnight cost estimates which were used for comparison here . EPA does not consider the inclusion of a 14 percent escalation factor for a project that should have relatively short dur ation to be appropriate in this case. In any event, co sts escalated to 2018 are not comp arable to an EPA 2011 estimate. EPA concluded that the Eastman $2 0 million estimate includes a contingency cost that is inflated by $3 million (30 percent versus 10 percent), a “Civ il / Structural, Concrete, Steel and Misc” cost component of $2.4 million that appears excessive, and an escalation cost of $2 million that is inappropriate for this comparis on. When factored into this co mparison, the difference of roughly $10 million (about 50 percent lower) between th e revised EPA estimates and the Eastman becomes much smaller (equal to roughly 25 perc ent lower). Based on this discussion, EPA has concluded that the Eastman capital cost estimat e does not conflict with the EPA estimates for modified traveling screens by a significant amount but rather the differences in total costs reflect Eastman’s use of certain cost components that EPA does not consider as appropriate in the application of this technology. Further, as expl ained previously, EPA’s model facility approach estimates costs on a national basis. As such, some facilities will experience cost above the national average and some will experience costs below the national average.

Service Life Several commenters argued that EPA has overes timated the service life of technologies. One commenter (UWAG) noted that EPA estimated the se rvice life of traveling screens as 20 years but notes that they commonly are replaced or overhauled every three to five years due to continuous operation and extensive O&M require ments. As described below, based on information it its record, for most facilities, EP A concludes 20 years is a reasonable estimate of the service life of traveling screens. However, EPA agrees with the commenter that many screens will require ongoing maintenance, replacement, or overhaul during this time period and that, for some, the lifetime may not extend to 20 years. EPA’ s costing approach reflects that and as such do not result in underestimates of cost. Observati ons from EPA’s site visits confirms that under certain circumstances, such as rivers with persis tently levels of suspended silt and sand levels, traveling screens may require overhauls at higher fr equencies but notes that this is only a small subset of intakes. These overhauls typically i nvolve replacement of certain moving parts such as specific screen panels, the bay, motor, cover, and mounts. An overhaul does not entail replacement of the entire trav eling screen. EPA notes that ne wer traveling screen units are designed with sturdy but li ghtweight composite materials, whic h greatly decrease wear and tear on moving parts and decreases ope rational costs. Under high sedi ment loads, EPA found that facilities replace chain and sprockets, and individual screen panels. This is consistent with EPA’s O&M costs based on vendor quotes of typical labor and equipmen t costs associated with ongoing maintenance including equipment overhauls. EPA has concluded that these costs are representative of full range of O&M costs associated with a service life of 20 years.

The commenter also stated that EPA assumed a se rvice life of 30 years for barrier nets but that many such nets are replaced more frequently (e.g., every 2-3 years). EPA notes the commenter

Essay 21 244misunderstood the methodology. EPA agrees that many barrier nets may require frequent replacement. EPA’s technology costs for barrier ne ts include O&M costs fo r the replacement of one third of the nets each year. This is consis tent with the commenters suggested frequency. The 30 year service life assumed by EPA applies only to the more permanent components such as pilings and anchor points. Othe r commenters were less specific about their concern for EPA’s assumed length of service life fo r technologies and EPA is unable to respond to these comments since they are general in nature and no informa tion is provided regarding specific technologies or service life duration.

Entrainment Costs Development for Existing Units/Intakes Industrial stakeholder commenters argued that the cost analysis fails to include any costs for entrainment requirements. The rule establishes a BTA standard for entrainment that requires the determination of required entrainment reduction measures in a structured site-specific permitting proceeding. The BTA standard for entrainment requi res that certain prescr ibed factors must be considered in the decision and must reflect the maximum reduction in entrainment warranted after consideration of re levant factors. EPA’s cost estimate s include the costs of studies and analyses that are required to be submitted to th e Director for a site-specific determination of BTA for entrainment. However, EPA has not included compliance cost estimates for any entrainment reduction technologies because, under EPA’s selected option, compliance for entrainment reduction requirements is estab lished on a site-specifi c basis. EPA cannot predetermine the outcome of such determinatio ns and this final rule does not prescribe a particular requirement. EPA did, however, devel op cost estimates for the cost of several compliance options at proposal that included entrainment compliance costs, including an assessment of the cost of an option that would ha ve required flow reducti on equivalent to that achieved by closed-cycle recircula ting systems at all facilities w ith 125 mgd or greater (Proposal Option 2), which account for 90 percent of actual flows. Also see Essays 37 and 55 for additional discussion concerning entrainment cost and impact evaluation.

Several commenters provided total facility technol ogy costs for one or more facilities to comply with a closed-cycle cooling requirement. EPA is unable to evaluate these estimates since the commenters provided only total costs without a breakdown among component costs (e.g., O&M, capital), and did not include a ny supporting data or detailed information describing system design or how the cost estimates were developed.

Regarding closed-cycle, low flow cooling sy stems are, in many cases, associated with manufacturing facilities and EP A’s approach was to account for higher compliance costs at manufacturing facilities reflecti ng more complex cooling systems by applying capital costs based on EPRI’s difficult retrofit cost category. Upon fu rther analysis, EPA has confirmed the validity of the manufacturing facility costs as reas onable for medium and large systems, but acknowledges that the cost model may have und erestimated closed-cycle retrofit costs for smaller manufacturing systems due to extrapolating the cost curve to small flows. This cost underestimate is likely offset by EPA’s use of th e higher cost of the di fficult retrofit cost category. EPA does not have additional data upon which to base different costs, nor did commenters provide any. Further, EPA has conc luded that this would not have changed the outcome of EPA’s evaluation of closed-cycle co oling as BTA since costs were not dispositive. EPA notes that the impact on the national costs is limited since smaller systems only comprise 20

Essay 21 245percent of total manufacturing clos ed-cycle system design flow. In other words, even a modest increase in capital costs for low flow manufactur ing facilities would not ha ve resulted in national total rule costs that were appreciably higher. Th is topic is discussed ingreater detail in DCN12­ 6655.

Riverkeeper (comment 2391) ar gued that EPA’s Option 2 and Op tion 3 costs are overestimated by 60 percent to 70 percent. As discussed below, EPA disagrees that it has overestimated closedcycle cooling costs. Also, EPA notes that while EP A considered costs for today’s final rule, costs were not a dispositive factor in rejecting closed-cycle as BTA on a national basis. See Section VI of the preamble. Riverkeeper de veloped their estimates using EP A’s closed-cycle Phase II cost model retrofit factor applied to SPX Clear Skies cooling tower costs, adjusted for inflation, and adjusted for the energy penalty cited in th e EPA Phase II Proposal TDD. The commenter assumed zero downtime costs. EPA’s position regard ing each of these components is discussed in detail in the record (see DC N 12-6656) and summarized below.

Closed

‐ Cycle Cooling for Existing Units at Generators Riverkeeper (comment 2391) expressed concer n that EPA abandoned its own closed-cycle estimation methodology developed under Phase II and adopted costs developed by the power industry and as a result overestimated costs. Rive rkeeper discussed several aspects in which EPA overestimated costs and presented an evaluation of EPA’s closed-cycle cost estimates in an attachment prepared by their contactor, Powers Engineering. EPA disa grees that the revised closed-cycle costs are overestimated. EPA’s orig inal Phase II cooling tower cost estimation methodology relied upon vendor quotes and BPJ engineering assumptions from new construction. The approach did not include any da ta from actual project estimates. EPA now has better cost data, including the EPRI cost models based on actual facility-specific retrofit costs. EPA included this data in its methodology for deve loping the final rule co sts. EPA continues to receive critical comments from industry (including EPRI) that the closed-cycle costs are underestimated despite the fact that EPA relied upon basic elem ents of the cost estimation methodology provide by industry and EPRI. A comparison of hypot hetical capital costs cited by Riverkeeper and actual cost data for more recen t closed-cycle retrofit projects supports EPA’s position that its estimate is a reas onable approximation of the range of costs that may be incurred nationwide. A more detailed anal ysis and discussion of this is sue and the Powers Engineering comments can be found at DCN 12-6656.

Riverkeeper (comment 2391) also stated that EPA’s reasoning on closed-c ycle retrofit downtime is contradicted by the record. They state th at EPA overestimated construction downtime for closed-cycle retrofits for fossil-fuel facilities by a factor of two in the 2002 Phase II TDD. The comment asserts EPA repeats the overestimate in the March 2011 existing facilities rule proposal TDD when EPA continued to assume a two mont h (8 week) total downtime and a net downtime of one month (4 week). EPA agrees with this commenter that, at so me facilities, a retrofit can be implemented with little difficult y, the tie-in can be performed duri ng a typical facility annual or 18 month scheduled maintenance period (which ba sed on site visits, EPA estimates are 4 weeks on average), and that for these cases there woul d be no net downtime. However, for facilities where retrofit difficulties may be encountered the downtime duration may be much longer. For example, new data obtained by EPA indicate that 6-8 weeks total downtime was required for the Yates and McDonough retrofits which represent av erage to difficult retrofits. Also, EPA’s

Essay 21 246analysis of the EPRI downtime estimates for ge nerators resulted in a weighted average of 1.5 months net downtime which is equivalent to a ne t downtime of 6 weeks which is longer than the 4 weeks assumed by EPA. 43 EPA notes that there is limited information available upon which to base this estimate but conclude d that the eight week total downtime estimate is reasonable and still supported by the record. See DCN 12-6656 for additional discussion. See Essay 35 for detailed discussion of installation downtime.

Riverkeeper (comment 2391) also takes issue with EPA’s increas e in the estimated construction downtime from 2 months to 7 months between 2002 and 2011 for nuclear facilities. Based on data regarding recent nuclear generating system upgrades, Riverkeeper states that the additional outage should be no longer than 2 months. In response to comments received since proposal and upon evaluation of additional data, EPA has revi sed the downtime estimates for closed-cycle retrofits at nuclear facilities in a way that s ubstantially reduces the overall downtime estimate to an aggregate value similar to that suggested by Riverkeeper. In the revised approach, facilities are divided into two groups: those that have c onducted or are currently planning to conduct an extended capacity uprate (ECU) and those that have not. An important char acteristic of an ECU is that it involves considerably more construction activities compared to simple refueling outages (including replacement of portions of the gene rating system) and therefore involves outages much longer than those for refueling. These pr ojects provide an ideal opportunity to further reduce downtime if the closed-cycle retrofit is performed concurrentl y. Data regarding ECU scheduling was readily available an d revisions to the final rule ha ve given the Director greater flexibility in establishing compliance schedules for entrainment requirements would allow for scheduling of the closed-cycle re trofit to occur concurrently with an ECU. For those facilities where ECUs are unlikely to occur in the future (i .e., facilities where an ECU has been performed or is currently planned), EPA t ook a more conservative approach si milar to the approach used at proposal but with the duration adjusted downward to a level consistent with new information. At proposal, EPA used the 7-month (28-week) closed-c ycle retrofit outage for all nuclear facilities on the Phase II NODA estimate which was based on the only nuclear cl osed-cycle retrofit actually performed at an existing nuclear facility (Palisades) in the 1970s. For the revised final rule estimate, EPA evaluated the EPRI net down time estimate of 6 months used in their cost estimate (EPRI Report Number 1022491, provided as an attachment to EPRI’s comments on the proposed rule; see EPA-HQ-OW-2008-0667-2200). In support of the 6-month estimate, EPRI cited engineering estimates for four nuclear power plants that ranged from 5 to 22 months and noted that the expected downtime was difficult to predict since there was a great degree of uncertainty given the lack of actual data. A closed -cycle retrofit for these facilities that will not conduct an ECU would likely occur concurrently with a refueling outage which now typically takes about 4 to 6 weeks (see DCN 12-6876). Thus, the EPRI net downtime estimate of 6 months or 24 weeks would be consistent with a total retrof it downtime of about 28 weeks. EPA notes that this 28-week value is consistent with the duration of the first steam generator replacement project for SONGs Unit 2 44 and while this outage length is the higher of the two similar projects at SONGS, the difference demonstrates that complex projects for which contractors and engineers have little previous experience will tend to take longer. The actual duration of the

43 The EPRI estimates which ranged from 0 to 6 months were used to derive energy replacement costs and given that easy retrofits were assigned 0 months th ese values clearly reflect net downtime.
44 The first attempt at replacement of the steam generator for SONGS unit 2 took 28 week s but a similar subsequent project for unit 3 was expected to be shorter (see DCN 10-6548).

Essay 21 247outage required for a nuclear closed-cycle retrofit is still unknown and will be influenced by sitespecific factors. Given this uncertainty, EPA c oncluded that a 24-week estimate was reasonable and applied this value in the economic analysis.

For the remainder of facilities th at are likely to conduct an ECU in the future, EPA estimates that under favorable conditions, ECUs typically have a duration of two to f our months (see DCN 12­ 6875) but can also take much longer. 45 For this analysis, EPA assume d that facilities performing an ECU would be capable of co mpleting the retrofit concurrently with the ECU and that the scope of the ECU would be extensive enough to pu sh the duration toward the longer end of the 2 to 4 month or longer range. For these projects , EPA assumed zero downtime which is actually a shorter duration than the 2 months suggested by Riverkeeper. See the Economic Analysis for Final 316(b) Existing Facilities Rule for more details regarding the a pplication. See also DCN 12-6656. Based on data from the NRC, EPA estimates that roughly one-third of existing nuclear generating units have already performed or have applied for an ECU an d therefore are assumed the a 24-week downtime. As a result, the equi valent average net down time across all nuclear units should be about 8 weeks (2 months). Thus , while the 24-week estimate is still longer than Riverkeeper’s suggested length, EPA has adjust ed the overall nuclear closed-cycle retrofit downtime to a value that is cons istent with Riverkeeper’s position.

Moreover, to the extent that Riverkeeper comm ents stating that EPA may have overestimated closed-cycle cooling retrofit costs, EPA also would stress that it s decision about what national standards for impingement and entrainment to promulgate took a vari ety of factors into consideration in addition to the costs. In deciding on its fi nal regulatory option (and in rejecting closed-cycle as BTA), cost was not a dispositive factor. S ee Section VI.E of the final preamble for additional discussion.

Several commenters stated that EPA did not incl ude costs of blowdown treatment particularly if high cycles of concentration (COC ) are required. The final rule doe s not include a requirement to meet a specified COC in order to meet the defi nition of closed-cycle cooling and thus the high COC requirement cited are not re levant. See Essay 17A. However, regarding cost of blowdown treatment, EPA agrees that there is no separate cost element for blowdown treatment in the cost methodology used but disagrees that such costs are not included. EPA notes that its costs include actual costs for the entire closed -cycle retrofit project as estima ted by EPRI. Since the costs are total project costs, th e data includes blowdown treatment component costs anytime the specific facility found such costs to be necessary. This presumption is supported in documentation of the most recent EPRI cost estimate which uses th e same model approach (see EPRI Report 1022491) and provides similar costs as EPA’s (see DCN 12- 6656). The EPRI report specifically discusses the need for considerations for “water trea tment and other maintenance facilities for the treatment of cooling tower make up and blowdown, if required.” The EPRI report also states that “water treatment may be required for discharg e of cooling tower blowdown” when discussing the basis for O&M costs used in the model. Thus , EPA concluded that it is reasonable to assume that blowdown treatment costs are already included in the EPA m odel. Also, as explained above, high COCs or flow reductions of 97.5 percent or 94.9 percent de pending on the water salinity are

45 Riverkeeper provided examples of ECU-type activities s uggesting that a 75 day (10 week) duration which is in agreement with a 2 to 4 week duration cited by engine ers (see DCN 12-6875) but th ere are instances where the duration was much longer. For example, Turkey Point took 5 months and SONGS unit 2 took 28 weeks.

Essay 21 248not requirements to meet the defi nition of closed-cycle, but rather serve as examples as to what comprises a properly operated cooling tower with minimized makeup flows.

One commenter stated that EPA did not consider that some existing closed-cycle systems may incur increased tower maintenance chemical a nd blowdown treatment costs due to unspecified permit application requirements and certain im pingement mortality requirements (e.g., lower velocity, flow for fish returns, blockage reductio n). EPA has revised the fi nal rule to provide an IM compliance alternative for facilities with cl osed-cycle recirculating systems. Therefore, no additional costs will result. Commenters provi ded no explanation or examples of how such requirements would result in increased ch emical and blowdown treatment costs.

Commenters noted that the EPRI costs for the electric generating faciliti es covered in proposal Options 2 and 3 are about 50 perc ent higher than the EPA estimate s at proposal for electric generators. EPA notes that these EPRI estimat es are based on the methodology described in EPRI Technical Report 1022491. EPA conducted a comparison of the EPA and EPRI cost methodologies and concluded that the national level capital costs were within 11 percent, which corresponds to less than 1 percent change in annua lized costs of the rule at a 7 percent interest rate. EPA notes a major component contributing to the higher EPRI total costs is the increased downtime associated with EPRI’s inclusion of cooling system re-optimization. As discussed in DCN 12-6656, EPA concludes that by factoring in only the higher downtime costs and reduced auxiliary power costs, EPRI failed to also incorporate ot her cost benefits of re-optimization that would have resulting reductions in long term co sts that favor selection of re-optimization. EPA notes that re-optimization (which involves impr ovements to the condenser performance as well as use of an overall smaller cooling system) will have additional benefits of reduced heat rate penalty and reduced O&M costs beyond just the auxiliary power requirements; these were not addressed in the EPRI methodology.

EPRI presented a detailed closed -cycle retrofit cost analysis fo r Phase II facilities in EPRI Technical Report 1022491. This document was one of many submitted by EPRI that were described as either directly supporting their comm ents or which they believed EPA would find of use as part of developing the final Existing Fa cilities Rule. EPA welcomes this data and notes that EPA’s final closed-cycle cost methodology is based on an earlier co st estimation approach originally provided by EPRI. EPRI’s previous cost methodology data submissions did not come with any actual facility or industry-wide es timates. The cited report included additional refinements to their methodology including some act ual industry-wide (Phase II facility) cost estimates. EPA conducted a detailed analysis th at compared the EPRI methodology and results of the model presented in the EPRI Technica l Report 1022491 to the EPA model used in the final rule (see DCN 12-6656). Th is comparison evaluated how well the results of the application of the EPRI closed-cycle cost estimation met hodology (with recent refineme nts) compared to the results of EPA’s final rule methodology and whet her any changes to the EPA methodology were warranted based on this new information. The EPRI report did not address O&M outside of energy requirements. The analysis concludes that the EPA and EPRI capital costs are similar in magnitude with the EPA costs being about 13 pe rcent lower than the EPRI costs. Though the new EPRI capital costs are somewhat higher, they are based on detailed s ite-specific information that was not made available to EPA. As disc ussed above, EPA finds th at the capital costs are close enough that when the costs are annualized there are no changes necessary. EPA notes such

Essay 21 249changes would not even be possibl e without EPRI’s more detailed site-specific information. See DCN 12-6656 for the detailed analysis.

The Utility Water Act Group (UWAG) (comment 2210) noted that EPA’s approach to estimated closed-cycle cooling costs includ es a variety of assumptions, and that EPA seems to have made little effort to ground-truth its hyp othetical cost equations against real costs experienced by real facilities or detailed estimates prepared by opera tors or their consulta nts. UWAG gives several examples of facilities where co sts would be higher than EPA estimates. EPA agrees that for some facilities the actual costs will be higher th an the EPA estimate, but notes the cost curves generated by EPRI suggests that UWAG has delib erately selected only the higher costs estimates as their examples. UWAG did not provide cost data for all of the facilities , include any low cost facilities, and the provided examples were never examples of “easy” retrofits. In calculating the national estimates, since EPA did not have the information to determine whether any specific installation would be easy, averag e, or difficult, EPA chose to a pply cost estimates for average difficulty cooling tower retrofits in recognition that some actual costs would be higher and some would be lower and that these costs would bala nce out in the overall national estimate. EPRI Technical Report 1022491 includes a ground-truth co mparison of their recent estimated capital costs to actual and detailed engine ering estimates for nine facilitie s. One nuclear plant designated as an extremely difficult retrofit reported cost s over 50 percent higher th an the EPRI estimate. The aggregate of the remaining eight was within 4 percent. Since the EPA estimates resulted in similar total costs to those of EP RI, EPA has concluded that its cost s are representative of actual costs when viewed on a national basis.

Midwest Generation, Edison Mission Energy, LLC (c omment 2245) states that both the EPA and EPRI closed-cycle estimates are underestimated because they did not include: 1) the cost of increased maintenance, including increased labor and chemical costs, necessary to operate closed-cycle cooling systems; 2) the cost to finance the capital project of installing closed-cycle cooling systems; 3) permitting costs required to permit closed-cycle cooling system installation and operation; 4) the cost of el ectrical system upgrades necessary due to unit retirement, energy replacement, and efficiency loss; and 5) the co st of environmental impacts that result from closed-cycle cooling systems. EPA notes that the EPA cost estimates include O&M costs, auxiliary energy costs, heat ra te energy penalty costs, and co nstruction downtime costs. The EPRI capital cost model upon which EPA based its estimates uses both actual and industry estimated closed-cycle cooling retrofit projects wh ich are often expressed as total project costs. EPRI Technical Report 1022491 specifically notes that it does not include permitting, financing, or electrical system upgrade costs. Regarding permitting costs, EPRI states that “Permitting costs, while potentially significant, are highly s ite-specific, and there is no obvious method for generalizing them.” EPA concurs with this assessment. EPA did include a permitting costs component in the economic analysis, noting these co sts were not necessarily specific to cooling towers. Further the EPA economic analysis does account for financing costs via present value and annualization. The 7 percent discount rate (use d in the private analysis, and as one of the alternative discount rates for the social cost anal ysis) reflects long-term, real cost of capital, based on OMB guidance and various studies. EPA assumes the electrical upgrade comment is referring to the costs of possibl e electric distribution system m odifications. In assessing whether the rule constitutes a “significant energy action” under Executive Order 13211, EPA concluded that the rule would not result in increases in the cost of ener gy distribution in excess of one percent. With regard to environmental impacts, the only environmental im pacts that would result

Essay 21 250in costs rather than benefits are for an increase in air emissions due to increased fuel use to compensate for the heat rate penalty and auxili ary energy requirements. In some locations, the net air emissions would decrease as the older, less efficient units are closed under a closed-cycle requirement. Newer, more efficient facilities w ould be constructed to make up the lost power production. Thus, the long term impacts may be minimal. While EPA did not specifically quantify the costs of such air emissions, EPA di d consider air emissions and the potential impact of increased air emissions is one of the three factors EPA considered in deciding to require entrainment requirements on a site-specific basis. Also, to the extent that these costs can assessed on a site-specific basis, these costs can be included in the evaluation requiredas part of the sitespecific permit application requirements. See preamble for a more detailed discussion.

One commenter, Duke Energy (comment 2215), in support of requiring site-specific determination of entrainment requi rements stated that EPA’s clos ed-cycle costs are flawed and that EPA’s cost estimates may understate the costs by 5 to 18 times. EPA notes that the final rule requires establishment of entrainment requirement s on a site-specific basis as requested by the commenter. EPA disagrees with th e commenter’s assertion regardi ng costs, noting the basis of comparison provided by the commenter consists of cooling tower costs based on the Phase 1 new facility cooling tower model. The Phase I new faci lity costs were then compared to the costs of the closed-cycle cooling system for one of thei r new generating facilities . EPA notes that this argument is flawed in several obvious respects. First, a comparison of Phase I model costs is irrelevant because there is a significant difference in the co st components considered and construction requirements between existing system retrofits and new systems, and that EPA need only consider incremental costs. The result is higher net costs for retrofit systems. Second, as discussed above the costing methodol ogy for this final rule is diffe rent from that used in the Phase I rule. In this rule EPA was able to use real world data obtained from EPRI. And third, the Phase I model costs are net costs that include discounts for offsetting once-through system costs which would otherwise need to be built at a Phase I facility . Existing facilities already have intake structures, pumps, condensers, and ot her elements of a cooling water system.

Closed

‐ Cycle Cooling for Existing Intakes at Manufacturers The American Chemistry Council (ACC) (comment 2207) provided a detailed closed-cycle cost estimate for retrofitting small (5,000 gpm), medium (20,000 gpm), and large (100,000 gpm) cooling towers. These estimates were develope d to support their argum ent against Proposal Options 2 and 3 as being too costly. However, el sewhere in the comment they state that “The potential cost per gallon of comp lying with the CWIS proposed rule is much greater for smaller intake structures because many of the complian ce costs do not vary subs tantially with intake flow.” This comment shares a common element with many other commenters who argued that manufacturers are different and it is not appropriate to simply transfer costs from the larger generating facilities to smaller manufacturing facilities. With respect to general comments that power plants and manufacturers are completely different, EPA disagrees . See TDD for detailed discussion of intake structures and technologies in use by both power plants and manufacturers. See Essay 14 discussion regarding many manu facturers only withdraw cooling water for purposes of power production. Also see Essay 14 regarding contact vers us non-contact cooling
water.

Essay 21 251Assuming ACC closed-cycle costs at the smalle r 5,000 gpm facilities ar e representative, the resulting effect on national level cost estimates is insignificant. EPA evaluated the ACC cooling tower costs estimates and compared them to simi lar costs derived using the EPA cost model. See DCN 12-6655 for a detailed analysis and discussion. This analysis confirms that for medium and larger cooling systems, EPA’s capital and O&M costs are mostly in agreement with the ACC estimates. In fact, EPA’s capital costs are slightly higher for larger systems. The same is not true for smaller 5,000 gpm systems and the differences suggest that the EPRI (and EPA) approach using linear cost equations may have limitations when estimating costs for smaller systems where the effects of economies of scale are more pronounced. On an individual facility basis, the potential underestimation of smaller system cost s can be significant but on a national industrywide level, the impact is small since the largersystems comprise the majority of the total noncontact cooling water flow. Fo r manufacturing intakes curren tly operating as once-through, an estimated 80 percent of total industry-wide ma nufacturing facility closed -cycle cooling costs under Proposed Option 2 were based on estimated non-contact cooling water flow associated with larger systems. 46 Moreover, the final rule does not requ ire any facility (small, medium, or large manufacturer, or generator) to comply with IM and E requirements based on closed-cycle cooling. Rather, as explained a bove, the final rule requires a si te-specific determination of entrainment requirements under a specified framewor k. As such, in the site-specific entrainment consideration, facilities th at are less than 5,000 gpm will be able to provide site-specific costs that may be different than those EPA calculated for this final rule.

It is also important to note that EPA may have overestimated closed-cycle retrofit cooling technology costs for Proposal Options 2 and 3 fo r manufacturing facilities on an industry-wide basis. The reason is that EPA used estimated non-contact cooling water flow rates based on industry-specific estimates of the proportion of DI F that is non-contact co oling water. This may represent an overestimation of th e flow that would have ultimate ly been retrofitted as closedcycle since some manufacturing f acilities have opportunities to reduce all or a portion of the volume of cooling water flow by reusing the non -contact cooling water as process water at significantly lower overall costs. EPA lacks the data to conduct a more refined analysis addressing this cost overestimate. Further, this option is generally not av ailable to power plants which use a significantly smaller quantity of process water compared to cooling water. However, since total costs were not a re ason for rejecting closed-cycle cooling as BTA, the potential overestimate is no longer relevant with respect to the national BTA entrainment determination.

New Unit Costs EPA received one comment concerning new unit cost s from the United States Steel Corporation stating that for closed-cycle cooling costs for new units the economic “analysis should include secondary costs associated with treatment, emi ssions, and energy use.” EPA disagrees with the detailed comment; EPA’s costs and economic analys is need only reflect the incremental costs for complying with rule requirements. Other costs a ssociated with other upgrades, construction, or projects are not a cost of this rule. EPA agrees that certain secondary co sts should be considered. For new units, EPA has already included net O&M costs for treatment chemicals, energy requirements, and labor/materials. With regard to emissions, the commenter made reference to

46 In this case, larger systems are defined as those witha non-contact cooling flow over 20,000 gpm which was chosen for illustrative purposes because it was the middle (med ium size) flow value used in the ACC estimates. See DCN 12-6655.

Essay 21 252permit modifications for air em issions and c ooling tower blowdown, but did not provide any details regarding what these costs should include or their magnitude. Also, as noted above EPA has concluded that blowdown treatment is included in the cost estimates for retrofitting existing units which also serves as the basis for the ne w unit costs. See Essay 20 for more information regarding new units.

Other Cost Comments Southern Company (comment 2190) stated that EPA did not include capital costs for upgrades at their Daniel Plant which receives water from a cooling pond owned by an independent supplier. EPA agrees that no costs are included for this fac ility because the facility reported it withdrew water for cooling from an independent supplier. Southern Company presumes that they would be responsible for ensuring compliance of the indepe ndent supplier’s intakes that fed the cooling pond and states that leaving compliance up to a th ird party is unacceptable. They conclude that the alternative scenario is that the facilities will need to build a new intake if EPA does not “grandfather” such independent supp lier arrangements. Due to the f act that facilities that receive cooling water from the independent supplier were not required to complete a technical survey, EPA did not have the data necessary at propos al to determine whether they would be in compliance nor estimate the cost of compliance. However, EPA notes that information supplied in the comment further indicates that Daniel uses a cooling pond (owned by an independent supplier) and that EPA’s final rule position rega rding cooling ponds has changed such that many cooling impoundments (ponds) may meet the defini tion of closed-cycle cooling provided the makeup water withdrawal supplying water to the impoundment is minimized. While no further information is provided by the commenter concer ning the intake technology or cooling system, the information provided indicates that this faci lity may already meet th e final rule compliance requirements. In the final rule, EPA has not re vised its position regarding applicability to independent suppliers and concluded this prov ision will have only limited applicability and therefore only a minimal impact on a national ba sis. EPA expects that the independent supplier scenario described by the commenter is addr essed at 40 CFR 125.91(b). See Section I of the preamble for more discussion of this issue, as well as Essay 14.

One commenter states that a lab technician and an environmental scientist would cost a minimum of $100,000 per employee in costs per year including benefits and salary. EPA generally agrees with the annua l salary rate noting that EPA’s economic impact estimate regarding monitoring costs use similar costs incl uding a loaded dollar/hr cost of $46/hr for a biologist and $31/hr for a biolog ical technician; these are equi valent to annual salaries of $96,000 and $64,000, respectively.

Other commenters provided total cost estimates us ing general descriptions of what the costs represented. EPA is unable to re spond to the generalized total cost estimates cited in the comments since these commenters failed to pr ovide supporting documentation describing the source or basis of the cost estimate. Without such supporting documentation, EPA is unable to determine the scope and comparability of the cost estimates.

Essay 21 253

### Essay 22: Implementation

Introduction In the proposed rule, EPA considered a variety of options to implement the requirements it proposed to establish under sec tion 316(b) of the Clean Wate r Act (CWA) for existing power generating and manufacturing and in dustrial facilities that withdraw water from waters of the U.S. exclusively for cooling purposes. EPA’s pref erred option would have allowed facilities to select any technology that achieved the IM numeric performance standard, or alternatively to demonstrate that intake velocity was less than 0.5 fps. EPA subsequent ly published a NODA that discussed additional approaches to implemen t 316(b) CWA requirements on a national basis. This essay addresses comments relaying suppor t for, suggesting m odifications to, and disagreeing with EPA’s options for complying with the BTA standards and the associated requirements for implementing them. Commenters also responded to EPA’s request for comment on a variety of topics. The majority of commen ters (generally, these were industry and State resource agency stakeholders) expressed concer ns about the administrative burden and technical and logistical constraints in complying with the proposed NPDES permit applications requirements, timelines for submittals, and monitoring and reporting requirements. Many commenters urged EPA to streamline permit application and monitoring requirements, particularly for facilities that plan to operate or are already operating CCRSs and/or any other technology deemed to be BTA. Many of these co mmenters expressed particular support of the possible rule revisions discu ssed in the NODAs, noting the fl exibility and site-specific approaches provided in the po ssible revisions. Some commenter s (State resource agencies) generally favored site-specific discretion be ing granted to the permitting authority for impingement mortality limitations and monitoring requirements, while also expressing concern about the resources needed to establish site-specific entrainment mortality requirements for applicable facilities in the absence of prescr ibed technical requireme nt. Many commenters asked for clarification on specific approaches and i ssues. Some commenters (generally, these were environmental organizations) supported more ex tensive data gathering and submissions for NPDES permit application and minimum monitoring and reporting requirements.

In today’s final rule, EPA establishes a sta ndard for minimizing impingement mortality, and provides seven different compliance alternativ es to achieve the BTA standard. EPA has reevaluated and revised the criter ia it adopted for demonstrating compliance with this standard and the compliance alternatives; see Essays 16 and 16A. EPA has streamlined and simplified the permit application and monitoring requirements, including harmonizing the permit application and compliance deadlines for impingement morta lity and entrainment mortality to allow for comprehensive, site-specific requirements to be established at each facility; see preamble Section VIII. The national BTA standard for entrainmen t requires that entrainment reductions measure will be determined on a site-specific basis, usi ng information provided to the Director in the facility’s NPDES permit application.

General Implementation The final rule impingement mortality standard and provides seven co mpliance alternatives allowing each entity affected by this rule to determine the compliance option and technology or

Essay 22 254systems of technologies that are mo st appropriate for that particular facility, or alternatively for each cooling water intake structure at the facili ty. The rule does not require implementation of any particular technology, though it does provide sp ecific alternatives that streamline compliance when using any technology that EPA’s record s hows will consistently and reliably meet the impingement mortality BTA requirements, includi ng closed-cycle recirculating systems, low intake velocity, offshore velocity caps, and modified traveling screens. See Essay 16.

Many commenters were concerned that the proposed permit application and supporting information requirements were unworkable, overly burdensome, and unclear, particularly those relating to permit application deadlines, peer revi ew, and entrainment studies. As outlined in the preamble to today’s rule, EPA has clarified the timeframe for compliance deadlines and simplified the permit application and supporting information requirements. EPA has concluded that these schedules and the flexibility allowed to the Director in requiring permit application materials are reasonable and will not force facil ities into noncompliance. See preamble Section VIII for more information.

Short

‐ Term Exceedances A few commenters requested that EPA add an exception to the proposed velocity standard for “short-term” exceedance periods of no longer th an 24 hours, due to unusual weather conditions, facility malfunctions, or required maintenance (e.g., backwash conditions). Several commenters called for the inclusion of a provision that certain conditions (e.g., ex treme weather events) constitute an affirmative defense to claims of noncompliance with rule requirements. EPA agrees that the Director should have th e authority over short- term velocity exceedances if a facility elects to comply via a low velocity compliance a lternative. The rule exp licitly states that the Director may authorize the facility to exceed 0.5 fp s at an intake for brief periods for the purpose of maintaining the cooling water intake system , such as backwashing the screen face. EPA expects the Director already has enforcement di scretion for short-term velocity exceedances related to exceptional events, such as operationa l upsets, malfunctions, or emergencies. Shortterm or emergency conditions should not affect a facility’s ability to comply with the impingement mortality standard, and such conditi ons should not interfere with overall optimized performance of impingement mini mization technology or performan ce of a suite of technologies. Ultimately, the Director has discretion to dete rmine the appropriate enforcement response for each situation in the face of ex ceptional or extreme events. See Essay 17 for further discussion in handling short-term exceedances.

Similarly, several commenters requested inclusion of a provision providing exemption for emergency CWISs from the applicable impi ngement mortality standards at 40 CFR 125.94, applicable to facilities that have installed pa ssive intake technologies. First, EPA notes that today’s final rule does not apply to any quantit y of emergency back-up water flows. See 40 CFR 125.94(c)(3)(iv). With respect to pa ssive intake technologies such as wedgewire screens, barrier nets, or porous dikes, EPA understands they ma y be subject to clogging due to icing, aquatic plants, or damage from other uncontrollable e nvironmental conditions. EPA does not expect this provision would be necessary to a ddress such situations. As descri bed in more detail in Essay 18, every viable manufacturing facility has adapted to ensure an available supply of cooling water, and further every power plant has taken the measur e necessary to ensure condenser pipes remain open and free so that the facilitie s can function. Faci lities that fail to make these adjustments are

Essay 22 255not able to offer reliable power, steam, or manufactured products . While EPA is aware these can be a concern, EPA’s record demonstrates that facilities have developed approaches that overcome clogging. EPA encourages technology tr ansfer and sharing of information between facilities, so that all facilitie s can establish the most cost-eff ective compliance path available. Also, EPA expects that the vast majority of faci lities that employ wedgewire screens will comply with the IM standard because the screens will achieve the pre-approved low velocity requirements under the IM standard compliance a lternatives at 40 CFR 125.94(c)(2) and (3). In cases where facilities comply with the IM standard via the low de sign velocity, this would not be an issue as facilities are not required to monito r their velocity. In cases where facilities comply with the IM standard via actual velocity, the rule allows the Director to authorize temporary exceedances to maintain the CWIS.

Application to Each Intake Many commenters requested that regulatory agencies have the flexibility to address impingement and entrainment mortality requirements on a facility-wide basis rather than addressing requirements in the same manner at each intake st ructure. EPA agrees that the proposed rule was unclear regarding the whether speci fic provisions apply to the enti re facility or to individual intakes. To clarify this issue, EPA modified the final rule language so as to state clearly that a facility with multiple intakes must decide whet her it will adopt a single compliance strategy for impingement mortality for the entire facility or adopt an intake-specific compliance strategy at each cooling water intake. Thus, EPA has created fl exibility for facilities w ith multiple intakes to select different compliance strategies for each intake. Regardless of which impingement compliance approach a facility chooses (single strategy for entire facility or different strategies for different intakes), if the facility chooses to comply with the impingement standard by operating at a maximum through-scre en velocity of 0.5 feet per s econd, the facility must measure and comply with the velocity altern ative on an individua l intake basis.

One commenter also requested th at the AIF (25 percent cooling water criterion) threshold and applicable requirements be determined on an intake -by-intake basis. EPA already considered this issue in Phase I and Phase II, and did not rece ive any new information that would result in a different approach here. See Essay 14 for a more detailed response to this issue.

Compliance Deadlines and Implementation Schedules

NPDES Permit Application Cycle EPA received many comments concerning the permitting schedule and deadlines for permit application submittals. Many commenters thought that the proposed timelines for submittals were unreasonably short, while some felt the tim eline was too long. Commen ters suggested that EPA allow appropriate degree of flexibility and longer timeframes for permit application submittal, such as tying permit application requi rements to the NPDES permit renewal cycle to stagger implementation of the regulation. They st ated that this appro ach would help address resource concerns for implementing the regulation at all facilities on the sa me timeframe. Several commenters were also concerned about the bu rden of coordinated compliance efforts for multiple rules. Commenters, includ ing Riverkeeper, expressed con cerns about time and resource constraints for both permitting authorities and entitie s subject to the final rule, particularly with respect to the detailed technical and cost-benefit st udies required to evaluate entrainment. They

Essay 22 256noted that permitting authorities have limited ti me to review and provide comment on permit applications that are expected to be submitted in the same timeframe and limited resources to consult technical experts to support this effort. One commenter was concerned that State permitting authorities lack the resources and expertise for case-by-case permitting determinations. In addition, ther e was concern about limited availa bility of technical experts qualified to review permit application materials. Similarly, facilities subject to the same rule timeframes would overwhelm the limited stock of qua lified technical experts available to support the development of required permit applica tion materials and the manufacturers of BTA technologies. Other commenters, including Rive rkeeper, were concerned that the proposed implementation schedule was already unreasonably l ong and that facilities should be required to come into compliance in half the time proposed; they stated that three year s should be sufficient for impingement mortality compliance and eight years for entrainment compliance. Riverkeeper also stated that a retrofit to closed-cycle cooling should genera lly take only three years. Other commenters, including Riverkeeper, stated that facilities had already completed much of the documentation that comprises the permit applicati on materials and should therefore be subject to an accelerated compliance schedule.

Because IM and EM compliance requirements we re proposed to be developed on different tracks, commenters were concerned that facilitie s subject to both IM and EM requirements might begin installation of redundant or ineffective technology for mee ting both sets of requirements. Commenters requested that EPA harmonize permit application and compliance deadlines for IM and EM to allow for comprehensive, site-specific requirements to be established at each facility so that impingement controls are not needlessly or prematurely installed.

As outlined in the preamble to today’s rule, EP A has clarified and revised the timeframe for compliance deadlines. EPA agrees with the conc erns of many commenter s regarding compliance deadlines and has tied the permit application materials submittal deadlines for existing facilities to the NPDES permit renewal cycle. EPA realizes that, in some cases, a facility may already be in the middle of a permit proceeding at the time of promulgation of this rule, or the Director may have already required much of the same info rmation be submitted by the facility prior promulgation of today’s final rule. Therefore, th e rule includes several pr ovisions that provide flexibility for the permit applica tion requirements. In the case of permit proceedings begun prior to the effective date of today’s rule, and i ssued prior to December 31, 2016, the Director may proceed with any determination of BTA standa rds for impingement mortality and entrainment without requiring all of the permit applicati on requirements of 40 CFR 122.21(r). See 40 CFR 125.94(a)(2). In such circumstances where permit proceedings have already begun prior to the effective date of the rule, these facilities wi ll still need to submit the appropriate permit application materials found at 40 CFR 122.21(r) permit applications during their next application. Additionally, while EPA expects that many facilitie s will already comply with 40 CFR 125.94(c), in some cases the facility will ne ed to choose one of the compliance alternatives for IM in their subsequent permit cycle. See Section VIII.A of the preamble for further discussion.

Permit renewals for existing facilities and permit m odifications for new units at existing facilities generally conform to the typica l NPDES permit cycle. Existing facilities subject to the final 316(b) regulations applying for reissuance of a permit expiring after December 31, 2016, must submit the information required in 40 CFR 122.21(r), in addition to all other applicable permit

Essay 22 257application information, no later than 180 days before the current permit expires. The rule provides flexibility for the Director to waive or allow later submission of the materials required in 40 CFR 122.21(r) based on a showing that the f acility could not develop the information by the time required for submission of the permit app lication. The Director also has the discretion to waive some or all of the information requirement s of 40 CFR 122.21(r) if the intake is located in a manmade lake or reservoir, and the fisherie s are stocked and manage d by a State or Federal natural resources agency or the equivalent. Similar to a new NPDES facility, applicable 40 CFR 122.21(r) materials for new units at existing facili ties must be submitted no later than 180 days before the planned commencement of cooling water withdrawals for the operation of the new unit. EPA has determined that these schedules an d the flexibility allowed to the Director in requiring permit application materials is reas onable and will not force facilities into noncompliance.

Commenters were concerned about how other regulations affecting the energy sector will compound the difficulty in implementing strategies to achieve compliance with today’s final rule. In determining the cost of compliance w ith today’s rule, EPA c onsidered the cost of compliance with multiple rules. The flexible appr oach in today’s rule allows the Director to consider other regulatory constraints when esta blishing the facility’s site-specific compliance schedule. EPA notes that, in some cases, efforts made to achieve compliance with multiple rules could be coordinated during regularly scheduled plant outages or downtime. See Essay 29 for further discussion of the cumula tive impact of EPA regulations.

Harmonizing IM and EM Requirements and the Compliance Timeline EPA further modified the proposed complian ce deadlines for impingement mortality and entrainment requirements by aligning them. A faci lity subject to both im pingement mortality and entrainment standards must comply with BTA standards for impingement mortality and its entrainment requirements as soon as practicable after issuance of its final permit establishing applicable entrainment requirements. New units at an existing facility must comply with applicable BTA standards with respect to the new unit upon commencement of the new unit’s operation. Though the regulation does not address the concept of “additional time,” EPA acknowledges that there may be overlap in the technologies used to comply with impingement mortality and entrainment standards, which could result in the facility needing more time to comply with the impingement mortality requirements. For example, if a facility plans to retrofit to wet cooling towers to reduce entrainment, the wet cooling towers technology also meets the requirements for impingement mortality via 40 CFR 125.94(c)(1). EPA therefore concluded that most facilities would not have an entrainmen t determination completed early enough to impose a 3-year compliance deadline on all impingement technology responses. As such, the Director would schedule compliance with the impingement mortality requirements to match the schedule for entrainment requirements. EPA does expect, howev er, that facilities where modified traveling screens are determined to be BT A should not take more than three years for installation and implementation of the technology, though technol ogy optimization and completion and approval of the 2-year performance optimization study would necessarily take a longer period. For facilities that choose to comply with the IM standards via the lo w velocity compliance alternative, have existing offshor e velocity caps, or existing clos ed-cycle recirculating systems, EPA expects compliance to occur much sooner. EPA projects just over half of facilities (18 percent of facilities c hoosing closed-cycle reci rculating systems; 34 percent choosing velocity

Essay 22 258reduction; and 1 percent choosing velocity caps) will comply with one of these alternatives where compliance can occur quite rapidly.

EPA notes that some facilities (i.e., those alr eady required to conduct ce rtain studies under the 2004 Phase II rule) will have already developed some of the permit application materials. However, not all facilities submitted these data in pervious permit applications. EPA notes that its estimates of administrative costs reflect this previous data collecti on requirement. However, EPA disagrees that an accelerated compliance schedul e is appropriate, as the existing facility rule addresses facilities not covere d by the 2004 Phase II rule (i.e., small power plants and all manufacturers) that have not b een previously required to con duct any of these studies. In addition, under the final existing facility rule, fa cilities are requi red to submit studies that, in some cases, while similar to studies required und er Phase II, would not have been completed prior to the suspension of the 2004 Phase II ru le. These studies (such as the Entrainment Characterization Study) need to be given ample time for adequately representative sampling and analysis. Other studies, such as the Benefits Valuation Study, ar e largely comprised of material that was not collected or analyzed under Phase II; in these cases, there is clearly no way to accelerate the schedule for submission of these materials. EPA also disagrees that most facilities have completed detailed studies for converting to closed-cycle cooling. While it is possible (or even likely) that many facilities have contemplated conceptual anal yses of cost and feasibility for closed-cycle cooling, in EPA’s vi ew, most facilities have not li kely completed an analysis of sufficient detail to complete the Comprehens ive Technical Feasibility and Cost Evaluation Study. For an entrainment determination (especia lly one requiring a facil ity to retrofit to a closed-cycle recirculating system), EPA disagree s that compliance could occur in all cases as rapidly as some commenters suggest. Nuclear fa cilities and some manufac turing facilities faced with more complex retrofits could require a le ngthy period of time to design, construct, and implement control technologies. Further, EPA inte nds that energy reliability be considered when establishing a schedule for compliance. Nuclear power plants and other baseload facilities serving the same region may need to have comp liance staggered so as to avoid inadequate energy supplies and reserves. See Essay 19 re garding EPA’s expected timeline for full compliance. Thus, while EPA expects all faciliti es would comply as soon as practicable, EPA agrees that some of the above scenarios could, in some cases, re sult in a lengthy period of time where unacceptable levels of AEI would continue to occur. Theref ore, the rule authorizes the Director, at 40 CFR 125.94( h), to establish interim BTA require ments in a facility’s schedule of requirements, for impingement mortality, entr ainment, or both, where necessary on a sitespecific basis.

One commenter expressed concern about the 10-yeartime-frame assumed for retrofit to closedcycle cooling used for Option 2 in the proposed rule. EPA notes that there is no fixed timeline specified in the final rule for making a BT A entrainment determination or installing a compliance technology. EPA agrees that actual imp lementation times will vary and notes that Option 2 (which was rejected) used 10 years as a preliminary estimate for the start-to-finish permitting and compliance process, including study submittals, review by the Director, permit issuance (as needed), and constr uction of required tec hnologies (such as a cooling tower). See Essay 19 regarding EPA’s expected timeline for full compliance.

While EPA has dropped the proposed requireme nt for compliance with the impingement mortality standards within eight years, instea d requiring facilities to comply with the

Essay 22 259impingement mortality and entrainment requiremen ts as soon as practicable according to the schedule of requirements set by th e Director, the Agency has conc luded that the final rule will generally result in compliance al ong a similar seven to eight-year timeframe. The final rule provides the Director with the flexibility, when establishing anelectric power generating facility’s compliance schedule, to consider issues (e.g., logi stical, regulatory) concerning maintenance of adequate energy reliability and necessary grid reserve capacity. Similarly, the Director may consider extenuati ng circumstances in establishing a compliance schedule for a manufacturing facility. The exam ple in the preamble includes establishment of a staggered implementation schedule for multiple facilities se rving the same localities. These flexibilities allow the Director to consider constraints fr om multiple regulations when establishing the facility’s site-specific compliance schedule. Ultim ately, all facilities will be required to follow their schedule as determined by the Director.

Nuclear Facilities Several commenters were concerned about implem entation schedule of the final rule at nuclear facilities. They requested assurance that the compliance schedules for nuclear facilities would provide opportunities for consultation with the Nuclear Regulatory Commission and allow for alignment with Nuclear Regulator y Commission relicensing processe s. EPA’s considerations of nuclear facilities are discussed in Essay 18.

Consideration of Remaining Useful Plant Life One commenter was concerned about BTA requi rements for facilities utilizing once-through cooling that have recently been replaced a nd repowered. The commenter noted that premature replacement of some of this equipment would impact debt capitaliza tion, power rates, and represent an improper use of ratepayer funds. EPA acknowledges the trade-offs inherent in balancing protection of fish, air quality, and rema ining plant life, among other factors. As such, EPA structured the final rule with sufficient flex ibilities as to allow the Director to determine compliance schedule for entrainment BTA requireme nts based on consideration of local factors, including remaining useful plant life. EPA notes th at, for facilities that ha ve or will be required to install closed-cycle recircul ating systems, the final rule allows for harmonizing compliance schedules for impingement and entrainment such that facilities would not need to install technologies that become obsolet e upon installation of the CCRS. C onsidering the long lead time to plan, design, and construct the most effec tive entrainment technology, closed-cycle cooling systems such as wet cooling towers, EPA determined that the Director shoul d have the latitude to consider the remaining useful plant life in es tablishing entrainment requirements for a facility. See full discussion in Essay 19.

Facility Retirement Some commenters requested that faci lities scheduled to retire in the near future be provided with additional flexibility, including waivers for permit application materials. Generally, EPA agrees this would not be an efficient use of a facility’s resources and has included a provision in the rule to allow the Director to waive some or all permit application requirements. EPA notes, however, that units that are repowered instead of retired may be subject to additional requirements.

Essay 22 260Considering Use of New Technologies Another commenter was concerned that alternative entrainment te chnologies tailored to certain local fish species are not yet available for im plementation; therefore, utilization of these unproven technologies would have an uncertain out come and might prove an unwise investment. EPA notes that the final rule does not require any specific tec hnology and allows for sufficient flexibility in subsequent permitting proceedings to incorporate new technol ogies in a facility’s approach towards meeting BTA requirements. As new entrainment reduction technologies are developed and become commercially available, EPA expects that permitting authorities will consider these new technologies wh en evaluating site-specific factors in determining entrainment BTA.

Permit Development and Review Resource Constraints EPA acknowledges that significant efforts will be required by facilities and State permitting authorities to develop and submit and review and approve permit applications. With the staggered rule implementation allowed by thes e implementation schedules, EPA has concluded that the implementation schedule will not pose an unreasonable burde n on contractors or manufacturers of BTA technologies . EPA furthermore disagrees that State permit authorities lack the resources and expertise to review and appr ove permit applications. State permit authorities already issue and oversee the NPDES permits in place at existing facilities, which may already contain BPJ 316(b) requirements. While some co mmenters were concerned that a site-specific approach would result in State permitting authorities needing to conduct case-by-case individual performance standard determinations, the process established in the final rule does not allow for unfettered case-by-case determina tions. The rule instead estab lishes a rigorous process for determining BTA for entrainment for each facili ty based on site-specifi c conditions. The seven IM BTA compliance alternatives offer structured flexibility in determining which option is best for each facility. Because EPA concluded that national entrainment requirements based on a particular technology were not a ppropriate as BTA, in-scope f acilities must submit extensiveentrainment characterization studies and data. The rule outlines the process by which sitespecific determinations are made based upon these studies and data, so State permitting authorities will not need “reinvent the wheel” for each permit.

EPA made an effort to ensure that informa tion provided to the Stat e will be checked by an appropriate third-party reviewer . It is EPA’s experience that a sufficient number of qualified contractors are available to assist facilities and State as needed. In addi tion, oversight authorities will have already reviewed studies and data pr eviously submitted by many facilities that are substantially similar to the permit applicati on requirements at 40 CFR 122.21(r). Because the Director has the discretion to waive some or all of the 40 CFR 122.21(r) requirements based on applicability of previously submitted material, the burden for both the facility and oversight authority in developing and revi ewing those materials has the pot ential to be significantly decreased. Finally, EPA staff are available to assi st in the process as needed with review and approval of permit applications.

Clarifying “As Soon As Possible” and “Additional Time” Commenters also requested clarification on the defi nitions of the terms used in the rule, “as soon as possible” and “additional time” for compliance purposes. EPA notes that the concept of “as

Essay 22 261soon as possible” is one that already exists for compliance schedules in th e generally applicable NPDES regulations at 40 CFR 122.47. The concept allows for consideration of the steps needed to modify or install treatment facilities, operatio ns or other measures and the time those steps would take but does not presume that the pe rmitting authority should establish a compliance schedule based on the maximum time period allowed.

In contrast to the proposed rule , today’s final rule does not include a requirement for compliance with the impingement mortality standards within eight years. Therefore, the final regulation does not address the concept of “additional time.” EPA r ecognizes that it will ta ke facilities time to upgrade existing technologies and install new technologies, and th at there are limits on the number of facilities that can be simultaneously offline to in stall control technology and still supply goods and service to orderly, functioning mark ets. EPA expects the Director will take this into account when establishing a deadline for co mpliance and any such schedule would take into account factors provided in 40 CFR 125.98(c). EPA acknowledges that some facilities which are not now in a permitting proceeding may need as mu ch as three years to fully complete their studies and data collection, and depending on the types of control selected, may need additional time to design, construct, and implement thei r technologies. EPA discusses the expected compliance timeframe in Section VIII.A of the preamble and Essay 19.

Requiring Interim Measures One commenter requested that the rule define inte rim measures to protect aquatic ecosystems to be implemented as NPDES permit conditions until long-term compliance solutions are in place. The commenter suggested that such measures coul d include installation of variable speed pumps or drives at peaking facilities or scheduling regular maintenance outages during peak spawning periods whenever feasible. As discussed above, the final rule clarif ies that the Director has the authority to establish interim BTA permit re quirements. Therefore EPA agrees with the comments that tailored measures c ould be required as interim meas ures. While today’s final rule does not specify interim measures to address s ite-specific concerns, the rule does provide the Director discretion to determine which interi m requirements might be necessary according to BPJ and include those requirement s in the facility’s permit.

Cooling Water Intake Thresholds Several commenters requested that facilities belo w the applicable cooling water intake thresholds should be considered presumptively to employ BT A for I and E and/or should not be subject to today’s rule unless the Director determines that the CWIS is causing adverse environmental impact. EPA disagrees that facili ties not subject to today’s nati onal standards are automatically achieving BTA I and E performance. See Essa y 14 for discussion about the potential for impingement and entrainment at any cooling wa ter intake threshold, and see preamble for discussion about cumulative impacts. Any CWIS may therefore cause unacceptable levels of AEI. EPA agrees that today’s ru le does not apply to existing facilities with a cumulative design intake flow below 2 mgd or operators of new units at existing facilities with a cumulative design intake flow below 2 mgd. For these facilities, the Director must set appropriate requirements on a case-by-case basis, using best professiona l judgment, as required by 40 CFR 125.90(b). The scope of the facilities affected by today’s final rule is furt her discussed in Essay 14. EPA’s consideration of adverse environmenta l impacts can be found in Essay 15.

Essay 22 262NPDES Permit Application Requirements In general, commenters were concerned about the resources needed to complete the permit application requirem ents, both in the initial and subsequent permit terms. In particular, commenters were concerned about burdensome peer review and permit renewal requirements. In the case of permit renewal requirements, commen ters argued that the permit renewal process should be streamlined as long as there were no significant changes to the f acility; in such a case, they stated that the requirement for the 40 CFR 122.21(r) permit application studies should be waived and there is no need to reevaluate the BTA decision for the facility.

EPA agrees that the proposed permit renewal process could be streamlined. As outlined in the preamble to today’s rule, EPA has simplif ied the permit re-application and supporting information requirements. Today’s rule allows , after the initial submission of the 40 CFR 122.21(r) studies in accordance with the rule, that the owner or operator of a facility may, in subsequent permit applications, request to reduc e the information required, if conditions at the facility and in the waterbody re main substantially unchanged sin ce the previous application so long as the relevant previously submitted informa tion remains representative of conditions at the facility. Substantial changes warrant a full permit application in the subse quent permitting cycle. For example, a species listed as threatened or endangered after issuan ce of the current permit whose range of habitat or designa ted critical habit includes waters where a facility intake is located constitutes a substantial change. Other su bstantial changes might include a significant change in the facility’s operati ng schedule, shifts in the local fish population, or changes in the quantity of water available from the source water. The owner or operator’s request must identify each permit application element that has not su bstantially changed and the basis for that determination. The submittal schedule for this request is specified at 40 CFR 125.95(c). Today’s rule grants the Director the discretion to accept or reject any part of the request.

Peer review requirements are addressed in the pr eamble to the rule and later in this essay.

Application Requirements Submittal Dates In general, commenters (both industry and St ate resource agency) thought the proposed timeline for submittal of permit application materials was insufficient and the permit application requirements were onerous. Many commenters thought that EPA underestimated the time and effort required to gather and organize all the permit application data. Commenters were concerned about requirements to begin collect ing permit application information before the publication of the final rule. Many commenters (both industry and State resource agency) thought that all the permit applicat ions nation-wide being due at the same time could create an overwhelming administrative burden for permitting authority reviewers. Commenters were also concerned that that the proposed deadlines di d not build in any time for permitting authority reviews and that the timeline would create ove rwhelming demand for contractor assistance.

As discussed previously in th is essay in response to comments on compliance deadlines and implementation schedules concerns, EPA has remove d the hard deadlines from the proposed rule for permit application materials submittal, inst ead tying the submittal timeline to the NPDES permit renewal cycle, and creating discretion for the Director to waive or push back the deadlines for some or all parts of the permit applicati on under certain circumstances. The final rule

Essay 22 263provides that facilities inte nding to comply with the BTA standards for impingeme nt and entrainment using a CCRS can choose not to pr ovide the applicable entrainment studies.

BTA Standard for Impingement Mortality In general, commenters were concerned about the lack of compliance alternatives for meeting the IM standard, issues in conducting impingement mortality reduction st udies, and the lack of data supporting the intake velocity requirement. Commenters also responded to EPA’s request for comment on monthly and annual limits on impinge ment mortality. Most were concerned about logistical issues about monitoring and the deri vation and application of the limits. Many were concerned about the lack of a pproved methods or guidance for impingement survival monitoring. Several suggested that an impingement mortality numeric performance standard should not apply to facilities implementing technology considered to be BTA. Others noted that the proposed numeric performance standard was based on a small da ta set not broadly repr esentative of waters of the U.S. Another commenter stated that EP A’s provision to require long-term monitoring to capture variation in the source waterbody is unne cessary, as an adequate sampling regime, in combination with an appropriately calculated IM numeric performance standard, will provide enough data to validate the long-term effects.

The Agency has built a tremendous amount of flex ibility into today’s rule, including a wide range of choices for achieving compliance with the rule’s BTA standards for impingement mortality. This flexibility allows facilities to sele ct a site-specific (or unit-specific) approach to achieving compliance with applicable requirement s and, as necessary, to coordinate compliance efforts with other regulatory constraints. While compliance with a numeric annual impingement mortality performance standard is one complian ce alternative, the rule provides that other technologies and operational measures, including conformance with th rough-screen design velocity and through-screen actual velocity, may be used to achieve compliance with impingement mortality standards. The facili ty may choose the compliance alternative or alternatives that best alleviate any concerns about conducting performa nce studies, installation and/or operational costs, or monitoring. As such, today’s rule promotes research and development of available technologies and site -specific optimization of the technologies and methods used to reduce impingement mortality. In addition, EPA has simp lified and reduced the monitoring requirements for impingement mort ality compliance alternatives other than compliance with the numeric impingement mo rtality performance standard. See Essay 16.

As outlined in the preamble to today’s rule , EPA has simplified the numeric impingement mortality performance standard from a monthl y to a 12-month numeric impingement mortality performance standard. The derivation of the 12-month numeric impingement mortality performance standard is further discussed in Essay 16A. EPA has specified certain parameters for evaluating compliance with this standar d, including aquatic species to be considered, sampling equipment characteristics, and mini mum and maximum holding times for evaluating mortality. Today’s rule also in cludes a provision for rates of impingement that might be so exceptionally low at an intake as to be insign ificant. In such circumstances, depending on documented information available, the Director has the discretion to conclude that the documented rate of impingement at the cooling wate r intake is so low that no additional controls are warranted. EPA also disagrees that long-term e ffects will be readily apparent. In site visits, EPA found that the species and count s at a site could change as ra pidly as within a few years,

Essay 22 264and it was only by virtue of frequent monitoring that the facility could identify the return of species to the waterbody. The biological characterization at 40 CFR 122.21(r)(4) would be conducted every permit term, which could be supplemented with additional monitoring established by the Director unde r 40 CFR 125.96(c), to illumi nate changes in the source waterbody.

Barrier Nets EPA also received many comments stating that ba rrier nets were both unnecessary and might be unavailable in many locations. EPA’s considera tion of barrier nets can be found in Essay 18.

Annual impingement mortality performance standa rd monitoring methods are addressed later in this essay.

Entrapment The proposed rule included a prohibition on trappi ng organisms in an intake structure with no viable escape route. Many comme nters expressed concern that the proposed requirements were not well-defined and would require costly techno logies not considered in EPA’s cost estimates. Moreover, in the commenters’ view, the requir ements could be difficult to comply with, particularly where cooling systems employ impo undments or basins downstream of the initial intake structure. The final rule deleted the requi rement that facilities demonstrate that their cooling water intake structures do not lead to entrapment. However, EPA does not agree that entrapped organisms should be ignored or go uncount ed. A facility that entraps fish must count the entrapped organisms as impingement mortalit y, and would include such counts as part of 40 CFR 122.21(r)(6). Then under either 40 CFR 125.94(c)(5) (or (c)(6)), if applicable, the Director will determine the modified traveling screens (or system of technologies) is BTA for that site. The Director makes this determinati on upon review of the optim ization studies required under 40 CFR 122.21(r)(6), and thus the entrapment will have been considered. The Director may determine the number and type of entrappe d organisms warrant addi tional technology. As a means of complying with the IM BTA standard, this could include technologies to reduce or eliminate entrapment as part of the traveling screens or the sy stem of technologies. Alternately, the Director can require additional m easures under 40 CFR 125.94(c)(8) or (9). 47 Also, see Essay 18.

Entrainment Mortality Reduction Requirements In this section, commenters discussed EPA’s re quest for comment on different aspects of the proposed entrainment mortality requiremen ts. Commenters discussed site-specific determinations for entrainment survival, reviewed criteria to guide evalua tion of closed-cycle or identified other criteria to be used as BTA for entrainment mortality, reducing flow to be commensurate with the operation of a CCRS, and land constraints in implementing entrainment mortality BTA.

47 See the TDD for further information regarding EPA’s cost analysis including barrier nets at certain facilities that already have traveling screens or a low intake velocity.

Essay 22 265100 Percent Mortality of Entrainment Organisms Some commenters supported allowi ng facilities to make site-s pecific demonstrations that entrainment mortality of one or more species of concern is less than 100 percent, but others supported the assumption of 100 percent mortality. Entrainable organisms generally consist of eggs and early life stage larvae. Early larvae generally do not have we ll-developed skeletal structures, have not yet devel oped scales, and in many cases are incapable of swimming for several days after hatching. The record shows that entrainable organisms that are collected frequently show poor survival in the case of eggs, and essen tially no survival of larvae. Consequently, on the basis of the record informa tion EPA has reviewed, for purposes of this rule EPA maintained the assumption that all entraine d organisms die, i.e., no entrained organisms survive. Also see Essay 18. Commenters provide d data showing that certain species have entrainment survival rates, and therefore EPA has retained a provision in t oday’s rule that allows, for monitoring purposes, a facility to demonstrate to the Director that the entrainment mortality for each species is less than 100 percent. Otherwis e, if the facility chooses not to demonstrate actual survival, entrainment mortality after passing the cooling water intake structure is counted as 100 percent mortality. EPA disagrees that a facil ity should be able to use entrainment survival data from another site; given th at entrainment impacts are highly site-specific (a point argued by industry), it is not reasonable to assume that a small number of entrainment survival studies could be broadly applied to f acilities nationwide. Not only w ould the species be different between sites, but so could the physical, chemical, and thermal stresses that an entrained organisms is subjected to while passing thr ough each facility. EPA al so notes that this demonstration is not required; if a facility deems it to be too expensive or infeasible to complete in a reasonable time, it does not have to conduc t the study. As noted above, EPA also disagrees that Directors will be unable to review these or any other permit application materials due to a lack of expertise. See preamble for further di scussion of the peer-review requirements of the final rule.

Land Availability Commenters thought that it was inappropriate to have a sta ndardized threshold for land availability with regards to determining BTA at that site. Refer to Essay 19 for a detailed discussion and response.

Description of Entrainment Survival Study Commenters also requested a description of studies demonstrating entrainment survival. The Phase II Regional Analysis Document (DCN 6-0003; EPA-HQ-OW-2002-0049-1490) discusses extensively in Chapter A7 the criteria used to ev aluate entrainment survival studies that were analyzed as part of that rulema king effort. Part of the intent of EPA’s review was to determine the soundness of the findings behind the entrainmen t survival studies. EPA reviewed the studies to determine if they were conducted in a manner that provided adequate representation of the probability of entrainment survival at the facility. The criteria EPA used to evaluate the studies focused on three main themes: the sampling effort of the study, the operating conditions of the facility during the study, and the survival estimates determined as the resu lt of the study. Chapter A7 provides a list of questions EPA used to dete rmine whether the entrainment survival studies provided adequate indication of the soundness of the science behind the facility’s estimate of potential entrainment survival. Studies submitted to demonstrate entrainment survival should

Essay 22 266address those questions to ad equately document the design and implementation of a sampling program intended to accurately establish the magnitude of entrainment survival.

Further discussion of the review criteria selected to guide evaluation of cl osed-cycle or identify other criteria as to be used as BTA for entrainment mortality is in Essay 16.

Further discussion of flow constraints commensura te with closed-cycle cooling is in Essay 17A.

Application Requirements Commenters provided many suggestions and criti ques of each portion of the permit application process. Many comments were related to concerns about an excessive permit application burden on affected entities, the strict ness of the proposed submittal timeline, and excessive resources needed to prepare and review materials. Severa l commenters stated that new studies should not be required if State environmental agencies find that entrainment issues have been sufficiently addressed at existing facilities. Similarly, some commenters suggested th at facilities already utilizing closed-cycle recirculating systems s hould not have to submit all permit application materials.

In response to comments on the proposed rule, EPA has simplified the permit application and supporting information requirements. The concerns commenters mentioned in this section were addressed earlier in this essay in response to permit applications and compliance deadlines. EPA also notes that each permit application requirement is intended to fulfill a specific purpose, while providing the Director with su fficient information to devel op BTA requirements for both impingement mortality and entrainment; as a resu lt, EPA disagrees that some studies should be eliminated. EPA recognizes that f acilities may have already submitte d materials to their Director that are equivalent in content to the permit appl ication requirements; if this is the case, the Director may waive the requirement for certain studies. Many commenters were concerned about the definition and application of the concepts of “species of c oncern” and “fragile species.” These concerns are addresse d later in this essay.

Exemptions for Peaking Units Several commenters were concerned that the ex tensive biological studi es required to support permit applications under the proposed rule are unreasonably burdensome for peaking units. To the extent the peaking plant operate s infrequently and the CWIS is not used, there is no need for sampling or monitoring during these zero flow days . In other cases, peaki ng plants continue to withdraw cooling water even while not producing power, and these operations result in impingement and entrainment. In other circumstan ces peaking plants operate at full capacity for a few months, most often during the summertim e during local peaking energy demand. Where this period of operation corresponds to spawning periods, those faciliti es could also have significant impacts on impingement and entrainmen t. Additionally, there is no guarantee that a peaking unit will remain a peaking unit; it may opera te more frequently and without notice to the Director. Therefore, it is bot h reasonable and necessary to obtain full permit application requirements from these facilities. Also see Essa ys 14 and 19. With regards to subsequent permit applications, see previous discussion of the str eamlined application requirements earlier in this
essay.

Essay 22 267Peer Review Many commenters suggested modifica tion or elimination of the peer review requirements, citing undue burden on facilities and likel y reviewer resource constraint s. EPA notes some of these commenters insist that EPA peer review the cr itical data and analysis it conducts; EPA not only obtains peer review, EPA also obtains public review and co mment. Those commenters not urging elimination of the peer review requirement requested that EPA provide implementation criteria and/or guidance on the pe er review process. Commenters also noted that that the limited pool of qualified peer reviewers could result in delays in the permit a pplication process. One commenter was concerned that industry would contro l peer review pro cess, inhibiting the Directors’ ability to meaningfully review permit application materials. One commenter expressed partiality concerns in using peer revi ewers and suggested that the technical adequacy of permit applications sh ould be judged solely by oversight authorities.

With regards to peer review, EPA disagrees wi th commenters that it is overly burdensome or inappropriate for inclusion in the permit applicati on process. In Section VII.H.3 of the preamble, EPA recounts the typical use of the peer review process in Agency activities and confirms its value. EPA disagrees that industry will control the peer review process. Properly implemented, peer review is designed to allow a neutral third party to conduct an objective evaluation. Objective evaluation by independe nt subject-matter experts at that stage of the permit development process allows EPA staff to augment their capabilities, adds a degree of credibility that cannot be achieved in any other way, and can, in some cases conserve resources by steering the permit development along the most efficient cour se. While peer review can help expedite and support the permit development pr ocess, the Director (e.g., State or EPA staff) remains the ultimate arbitrator of the adequacy of the permit application materials, including any peer reviews that were conducted. EPA notes that peer review require ments are not expected to add undue burden to the permitting process in light of the reduced and simplified permitting procedures promulgated in today’s rule. EPA also notes the expanded and consolidated submittal timelines and points to peer review guidan ce materials available on the EPA web site.

Several commenters requested that peer review requirements be waived for existing studies or updates to existing studies. Today’ s final rule does not specify a ny exemptions from peer review requirements. EPA notes, however, that the Direct or has the discretion to waive some or all a facility’s 40 CFR 122.21(r) permit application requirements, based on previously submitted information. Therefore, the materials that the Di rector deems acceptable in lieu of submission of 40 CFR 122.21(r) permit application requirements, in cluding existing studies, may not have to go through the peer review process.

Benefits Valuation Study One commenter protested the requirement in the pr oposed rule for permit applications to provide an accounting in the Benefits Valuation Study of mitigation activities that have offset impingement and entrainment. The commenter sugge sted that there is no legal justification for consideration of habitat rest oration during either national rulemaking under CWA 316(b) or during site-specific BTA determinations. EPA disa grees that the discussion of recent mitigation efforts already completed (up to the effective date of today’s rule) mitigation is unwarranted or irrelevant for making site-specific BTA determina tions. The purpose for gathering this data is to determine how mitigation efforts that had been authorized as components of one of the

Essay 22 268compliance alternative in the 2004 Phase II rule (up through the 2007 suspension of the rule) have affected fish abundance and ecosystem viability in the intake structur e’s area of influence. This information is necessary fo r developing an appropria te social benefits valuation for use in making a site-specific BTA determination. Today’s final rule specifically removes the restoration provisions from the Phase I rule and restorati on activities are not included in the compliance options available to existing facilities establis hed today. Requesting information about mitigation activities that have taken place in the past does no t constitute allowance of restoration measures for achieving the I&E standards se t forth in today’s final rule.

Default Values for Permit Applications One commenter suggested that EPA define default va lues for certain expected costs to be used in permit applications, noting this it could stream line the permit development process. While EPA has conducted extensive evaluation and verification of these costs and parameters at the national level, the Agency disagrees that it should set or suggest standardized costs for cooling tower retrofit or other BTA approaches on a site-spe cific basis. Over the 10-plus years of this rulemaking, EPA has published the data used in its cost modules and othe r calculations and those values are available to the public for reference or other use. To set default or suggested expected values would infringe on the site-specific BTA a pproach EPA has selected. In today’s final rule, EPA requires facilities to present site-specific data such that a tailored approach may be used to determine the optimal EM BTA at that facility.

Use of Existing Studies or Data Several commenters asked whether they could subm it historical data or ot her existing studies, or data that had already been collected to satisfy components of the 40 CFR 122.21(r) permit application requirements. Today’s ru le specifies that facilities ma y use historical data that are representative of current operations of the facility and biological c onditions at the site to meet the permit application requirements, so long as they provide documentation regarding the continued relevance of the data. The requirements for the impingement technology performance optimization and entrainment performance studies st ate that studies more than 10 years old must include an explanation of why the data is still relevant and representative of conditions at the facility. In addition, the explan ation should clarify how the datashould be interpreted using relevant terms (e.g., in terms of the updated defi nitions of impingement and entrapment). In general, historical data and existing studies more than 10 years old should include this accompanying information. EPA notes that, if the facility has previously submitted historical data or other existing studies that are subs tantially similar to the 40 CFR 122.21(r) permit application requirements, the Director has the discretion to waive the requirements for those portions of the permit application requirements.

Similarly, commenters asked whether they would be able to submit previously gathered data on already-installed technologies to receive compliance credit or to demonstrate compliance with the IM standard or a compliance alternative. Toda y’s rule provides a comp liance alternative at 40 CFR 125.94(c)(6) for a facility to operate a system of technol ogies that wi ll achieve the impingement mortality standard. This is the only compliance alternative that relies in part on a credit for reductions in the rate of impingeme nt achieved by the facility’s system. The rule requires that the facility submit an estimate of those reductions to be used as credit towards

Essay 22 269reducing impingement mortality, as well as any relevant supporting documentation, including previously conducted performance studies not already submitted to the Director as part of the facility’s entrainment performance studies. As such, the rule explicitly specifies that previously gathered data on system performance must be submitted to the Director under this compliance alternative.

Chosen Method of Compliance with Impingement Mortality Standard Several commenters requested that the rule a llow facilities to meet the IM BTA standard by complying with one compliance alternative for part of the year and another alternative for the rest of the year (e.g., meeting the low velocity compliance alternative for part of the year and meeting the IM numeric IM performance sta ndard for the remainder of the year). One commenter noted that their faci lities implement variab le operational standards to meet 316(b) permit requirements throughout the year. EPA consid ered operational measures such as seasonal operation or seasonal flow reductions which the Agency concluded were not appropriate as elements of the national BTA IM or E standards. Nonetheless, EPA intends for facilities to have the flexibility to employ such measures in a sy stem of technologies to meet IM BTA on a sitespecific level as specif ied at 40 CFR 125.94(c)(6). Compliance w ith this alternat ive is based on a combination of a) reduction in rate of impingeme nt; b) reduction in impingement mortality; and c) reduction in flow. Facilities choosing to comply with this a lternative must demonstrate how the performance of the selected impingement re duction measures represents the best technology available for the site. Facilities may choose to im plement different operational measures and/or technologies throughout the year ba sed on site-specific conditions, so long as the complete system is then approved by the Director as BTA at that site. Facilities choosing to demonstrate reduction in impingement mortality must in clude two years of biological monitoring demonstrating the level of impingement mortality the system is capable of achieving.

Entrainment Characterization Study One commenter suggested that the biological ba seline in the Entrainment Characterizations Study (ECS) should account for ecosystem damage already done by the facility, noting that organism counts and density will be much lower after years of damage. EPA disagrees with this approach, because it is impossible to completely characterize the magnitude of the facility’s effect on the waterbody without suffi cient historical data, and that data is generally unavailable. The biological entrainment characterization component of the ECS requires a detailed characterization of the organisms in the vicin ity of the CWIS, includ ing data of sufficient duration to express variations in the ecosyste m related to climate and weather differences, spawning, feeding, and water column migration. While this characterization may include historical data, that data is not required and entrainment BTA decisions will be made by the Director on the basis or conditions that are representative of the current operation of the facility and of biological c onditions at the site.

Several commenters suggested that they be allowe d to submit a truncated an alysis if a technical factor precludes the use of clos ed-cycle cooling (e.g., lack of la nd availability would preclude closed-cycle cooling), fine-mesh screens, or any other entrainment reduction technologies identified by the applicant or requested by the Director. EPA disa grees that facilities should be allowed to truncate their analyses in the case of a potentially in feasible candidate entrainment

Essay 22 270reduction technology. In the commenter’s example of limited land availability, EPA found in site visits that this factor did not always prevent a facility from developing engineering solutions to accommodate the limit in space. Further, EPA expects some facilities with limited space may still be able to install closed -cycle for some, but not all, of the power generating or production units. Therefore, in the Comprehensive Technica l Feasibility and Cost Evaluation Study (40 CFR 122.21(r)(10)), today’s rule requires the facility to submit an e ngineering study of the technical feasibility and incremental costs of candidate en trainment control technol ogies, including closedcycle cooling, fine-mesh screens with a mesh size of 2mm or smaller, reuse of water or alternate sources of cooling water, and any other entr ainment reduction technol ogies identified by the applicant or requested by the Di rector. Today’s rule specifically states that this study must include a description of all technologies and operational measures considered and documentation of factors that make a candidate technology impractical or infe asible for further evaluation . The preamble provides an example how land availability or unavailability may be discussed to demonstrate technical feasibility or infeasibility.

Monitoring Requirements In general, commenters thought that the proposed monitoring requi rements were overly burdensome and costly, in some cases exceeding the calculated value of the benefit to the environment. Commenters requested the flexibility to have mon itoring requirements reflect sitespecific considerations and reduced monitoring fo r consistent compliance or demonstration of proper operation and maintenance of a “pre -approved” BTA technology. Commenters also requested removal of monitoring requirements for the “life of facility.” Some commenters provided specific comments on EPA’s assumptions for sampling costs, including the staff time required, equipment costs, the effects of debr is, moribund organisms, and monitoring/sampling frequencies (including diel and tid al cycles). Other commenters stated that the proposed rule contained too few compliance alternatives, and ma ny facilities would not be able to meet the impingement mortality performance standard. Th ese commenters were also concerned that a failure to meet the performance standard would constitute a violation of the facility’s NPDES permit and could result in significan t fines or other penalties. In c ontrast, Riverkeeper stated that EPA should set minimum monitoring requirements to ensure adequate protection for organisms and to alleviate burden on the States.

EPA addressed concerns regarding monitoring in the final rule by revising and simplifying monitoring requirements. Most significantly, biological compliance monitoring is no longer required for pre-approved and other approvable technologies in 40 CFR 125.94 (c)(1) through (5) of today’s rule beyond that required for the permit application, and monitoring may be greatly reduced for facilities choosing other compliance alternatives. EPA recognizes that biological monitoring can be expensive, which f actored into EPA reducing those requirements. Furthermore, EPA has harmonized the mon itoring requirements and timing between the impingement and entrainment mortality standard s to reduce overall monitoring burden. At the same time, periodic biological data collection is necessary to update the biological activity in the vicinity of the CWIS. The final ru le balances the costs of biological monitoring with the need for this information. Also see Essay 16.

Additionally, EPA has expanded the compliance opti ons available to regula ted entities; many of the options added have streamlined requirements for monitoring and compliance. As a result,

Essay 22 271facilities that anticipate that they may have difficulty meeting the impingement mortality performance standard can instead choose a diffe rent compliance alternative. Each compliance alternative contains demonstr ation requirements and only the option of demonstration of compliance with numeric impingement mortalit y performance standard (40 CFR 125.94 (c)(7)) contains monitoring requirements similar to those in the proposal.

EPA agrees that monitoring requirements for th e life of the facility can be unduly burdensome. Accordingly, today’s rule includes a complian ce alternative (40 CFR 125 .94(c)(5)) that allows facilities that demonstrate compliance with th e impingement mortality numeric performance standard to request that the Di rector reduce monitoring requirements after the first full permit term in which these monitoring requirements ar e implemented, on the condition that the results of the monitoring to date demonstrate that the ow ner or operator of the f acility has consistently operated the intake as designed and is meeti ng the requirements of 40 CFR 125.94(c). Similarly, for entrainment monitoring requirements, faci lities must follow the monitoring frequencies identified by the Director for at least two years after the initial permit issuance. After that time, the Director may approve a request for less freq uent monitoring in the remaining years of the permit term and when a subsequent permit is issued.

Exhibit VIII-4 in the preamble to today’s final rule summarizes the minimum monitoring requirements for each compliance approach. Even im plementation of a closed -cycle recirculating system, the most protective technology, requires daily monitoring of cooling water withdrawals, makeup water, and blow down flows to allow the Director to determine that makeup and blowdown flows have been minimized. EPA rec ognizes that monitoring comes with a certain cost and has carefully crafted appropriate mi nimum monitoring requirement for each technology considered. EPA has set minimum biological mon itoring requirements for compliance with the numeric impingement mortality performance st andard 40 CFR 125.94(c)(7). In establishing the biological monitoring requirements, EPA expects any approved monitoring protocols will consider the entire daily and (where appropriate ) tidal cycles over whic h data collection should occur. Typically, facilities have collected im pingement samples continuously for 6 or 8 hours and repeated this cycle to c over an entire 24-hour period. Strati fying collection in this manner allows an analysis of the di el variation exhibite d by many aquatic organisms, which may be important. For example, in some species, larval life stages are more active at night and impingement rates may be higher; as a result , sampling during only daytime hours would not be reflective of the biological conditions at the facility. EPA also expect s the approved monitoring protocols will ensure that sampling occurs during periods of representative intake flow and not during periods of non-peak flow or scheduled outages.

EPA has also revised its cost estimates for impi ngement sampling in the ICR, as discussed in Essay 23. EPA has assumed 48 hours of staff time per sampling event for 2 staff (i.e., round the clock staffing), plus additional time for pre-event preparation and travel to the site. EPA also included costs for durable sampling equipment (e.g., a shed). These estimates are reasonable approximations for an average facility for na tional cost purposes. EPA further found the sampling costs reflect the range of costs for sa mpling actually conducted by facilities; naturally, the exact costs at an individual f acility may be higher or lower.

Essay 22 272Clarifying “Direct Measure” Commenters requested clarification of the term , “direct measure” with regards to monitoring. The term “direct measure” has been removed from the rule language in reference to monitoring to evaluate compliance with impingement mortality performance standard. EPA agrees that direct measurement of intake velocity on a tr aveling screen may be problematic in some circumstances, and the final rule allows intake s to comply with the low velocity compliance alternatives by either calculation or direct measurement. Compliance will be demonstrated through monitoring and reporting of actual or calc ulated intake velocities. EPA expects that facilities will employ appropriate design and operational measures to ensure that 0.5 fps is not exceeded during minimum ambient source water surface elevations, as can be anticipated through best professional judgm ent using hydrological data.

Annual Average Commenters expressed concern th at EPA expects facilities to tr ack their compliance with the annual average standard on an ongoing basis, an d to proactively modify their technology or operations when any individual monthly average suggests that they may be in danger of exceeding the annual average IM performance sta ndard in the future. They note that this language suggesting that compliance with these standards can be “adjusted” does not recognize the delay in receipt of data from the laboratory and also ignores the seas onal variability of many species and the inherent variability in hardin ess of species. One commenter expressed concern that there is the question of wh ether the annual average is or is not a “rolling average.” The proposed rule at 40 CFR 125.97(a)(2) required permittees to “update and submit your calculated annual average for each month covered by the report. ” The final rule addresses these concerns by (1) making it clear that it promulgated a 12 m onth performance standa rd, and by providing six IM compliance alternatives that do not require biological monitoring to demonstrate compliance with the IM performance st andard. Also see Essay 16A.

Species of Concern and Fragile Species Commenters were concerned that EPA assurances of Director discretion does not resolve how the rule would treat sensitive sp ecies that would be deemed “spe cies of concern,” and thus be included in the impingement mortality counts. They suggested that EPA should also allow permit authorities to specify what “species of concern” will be used to measure compliance and that the difficulty of achieving the impingement mitigation standards would be mitigated by careful definition of species of concern to exclude particularly sensitive organisms with lower ecological value consistent with EPA’s statem ents in the preamble and the TDD.

Commenters stated that EPA offers no eviden ce that the survival ra tes of the fourteen predominant species on which the impingement mort ality performance standard is based are, in fact, representative of all species. They sugge sted that there should be no reliance by EPA on speculation that State permitting authorities will be inclined to exclude “highly prevalent” forage fish species or any other species for that matter, from being consid ered “species of concern” and that EPA should include all fish or specify excl uded fish. One commenter stated that based on discussions with EPA staff, that they understood that the species of concern, and thus the fish whose mortality is to be measure d, are to be finfish, not shellfis h. They suggested that the rule

Essay 22 273should make this clear and that EPA offers no explanation for excludi ng shellfish from these standards. They should apply, in aggreg ate, to all “species of concern.”

Commenters were concerned that the Proposed Rule did not clearly define “species of concern” nor did it differentiate between “species of concern” and representative important species (“RIS”). They suggested EPA should adopt standa rds for hardy, intermedia te, and fragile species and grant discretion to State Directors to identify species of concern. To ad equately protect each species of fish, EPA should apply the impingement mortality standard to each species impacted by the cooling water intake system. EPA could develop IM standards based on categories of species, e.g., one for hardy speci es and one for fragile species. One commenter thought that EPA should not allow State permitting agencies to exclude any species from monitoring, sampling, or study requirements, including rep tiles and marine mammals.

First, the final rule provides six compliance alte rnatives that would not require a facility to conduct biological compliance monitoring for the IM performance standard. For those that elect to comply with the numerical IM performan ce standard, EPA addressed these concerns by eliminating from the final rule the species design ations “species of conc ern” and “representative important species” and instead identifying fragile and non-fragile species. As detailed further below, this approach mimics the actual data fo rming the basis of the IM performance standard. EPA then developed the numeric impingement mort ality standard for the final rule using data from only the identified non-fragile species. Fa cilities monitoring to demonstrate compliance with the numeric impingement mortality perf ormance standard must measure mortality, including latent mortality, for each non-fragil e, non-threatened, and non-endangered species collected during sampling events. Accordingly EPA disagrees that monitoring requirements should be limited only to selected species of concern. EPA notes the Director may require additional monitoring and may require additi onal controls for fr agile-fish at 40 CFR 125.94(c)(9)(i). EPA agrees that shellfish should be considered under the impingement mortality performance standard; see Essay 16A. While not traditionally vi ewed as “impingeable,” EPA also notes that many non-fish or shellfish species (such as sea turtles and marine mammals) have additional protections under other laws, such as the Endangered Species Act or Marine Mammal Protection Act. The Director may establish additi onal controls for these aquatic organisms at 40 CFR 125.94(c)(9)(ii). For further discussion see Ch apter 11 of the TDD and the Section VIII of the preamble.

EPA notes that, in contrast to the proposed ru le, the permit application no longer requires submission of the proposed “species of concern.” EPA found that the term “species of concern” was similar to terms used in the context of T&E (threatened and enda ngered) species, and was concerned about further confusi on over existing Services or Stat e requirements for such species. Furthermore, despite EPA’s efforts to dis tinguish between species of concern and RIS (representative indicator species) in the NODA (77 FR 34325, June 11, 2012), EPA found that many commenters were still confused by the la nguage. EPA is therefore adopting the term “fragile species” and exempting fragile spec ies from being counted to determine compliance with the numeric impingement morality performa nce standard. The term “fragile species” is meant exactly as it is used with the impingement mortality data and criteria used in calculating the impingement mortality performance standard of the rule. EPA defines “fragile species” at 40 CFR 125.92, as a species of fish or shellfish that has an impingement survival rate of less than 30 percent even when the BTA technology of modified traveling sc reens are in operation. EPA has

Essay 22 274long recognized these species as having low surv ival rates under the best of conditions and fragile species have been shown to suffer from high rates of mortality even in control studies (see DCN 10-6810). The EPA does not intend for such na turally occurring mort ality to be counted against a facility’s performance in reducing impingement mortality. EPA therefore took an approach to ensure that a f acility’s performance in reduc ing impingement mortality as demonstrated by biological monitoring would reflect only the effects of its improvements to the CWIS technology, and not be confounded by effects of monitoring that are not caused by impingement. EPA notes the change in terminology to “fragile species” eliminates the proposed rule burden on States to review and approve each facility’s site-specific species of concern, and eliminates confusion over any T&E or RIS that may be subject to more stringent requirements under other Federal, State, and Tribal law. EPA also notes that the us e of “fragile species” instead of “species of concern” greatly increases the transparency of the Agency’s impingement mortality performance standard.

One commenter expressed concern that the prop osed 12 percent limit would allow 100 percent mortality of vulnerable species as long as they represented a small portion of fish impinged and suggested that, in order to adequately protec t each species of fish, EPA should apply the 12 percent impingement mortality standard to each species impacted by the cooling water intake system. EPA disagrees; the IM performance st andard was developed based on aggregating impingement mortality data across numerous sp ecies and EPA has concluded that it would be inappropriate to then apply a standard based on aggregated specie data to each individual species. Such an approach would require the de velopment of a performance standard for each species of fish and is not a viable one, given the lack of available date to do so. Also see Essay 16A.

EPA disagrees that the exclusion of fragile sp ecies from the numeric impingement performance standard weakens the implementatio n of the numeric standard in the final rule. Fragile species are accounted in the baseline biological monitori ng and are only excluded for measurement of compliance against the numeric standard (which is appropriate as the technology basis for the standard, modified traveling scr eens with fish returns is largely not effective against fragile species). On a site-specific basis, BTA technolog ies and practices will a fford some measure of protection for all fish and sh ellfish, including fragile species . Today’s BTA for impingement mortality allows the Director to establish site-specific c ontrols under 40 CFR 125.94(c)(9) to address fragile species. The Director may requi re additional measures such as behavioral technologies to protect fragile sp ecies, or additional monitoring for species not subject to the BTA requirements for impingement mortal ity at 40 CFR 125.95(c) . Such monitoring requirements will be determined by the Director on a site-specific basis.

EPA agrees that exclusion of “invasive” specie s is problematic and removed the language from the proposed rule that excluded measurement of invasive species for determining compliance with the numeric standard. The fi nal rule does specify, however, that “all life stages of fish and shellfish” does not include other specified nuisance species. Therefore, many non-indigenous invasive species (e.g., zebra mussels) that are nuisance species are excl uded in determining compliance with the numeric standard. EPA’s use of the term “invasive species” in the proposed rule may have been confusing because some migh t consider non-native stoc ked fish as invasive species. It was not EPA’s intenti on to exclude those types of fi sh from being counted towards compliance with the numeric IM performance standard.

Essay 22 275Effects of Debris Commenters expressed concern that some facilitie s experience very high debris loads on their traveling screens. They stated that this has th e potential to substantia lly increase impingement mortality noting that impinged organisms are likely to be subjected to impact and abrasion from the debris resulting in increased mortality. They argued that there is no evidence in the record for the proposed rule that the modified traveling sc reens identified as BTA are able to separate debris and organisms effectively enough to achieve the impingement mortality standards and that heavy debris loads greatly complicated sorting and enumeration of impinged organisms during studies. They requested that provisions should be included in the rule that accommodate these natural events. They also noted that some NP DES permits have conditions that prohibit the return of debris to the source waterbody and that return ing organisms impinged at these facilities while maintaining compliance with the permit cond ition that prohibits disc harge of debris would require complete separation of debr is from organisms, which they state is infeasible. EPA agrees that high debris loading and debris return prohibitions can affect mo rtality rates of fish returned from a traveling screen and may occasionall y present difficulties when monitoring for impingement mortality. EPA also agrees that de bris return prohibitions in NPDES permits may conflict with requirements to return impinged fish. EPA notes, however, the problems described will only have an impact on ability to comply for those intakes where the numeric performance standard alternative is selecte d. The impingement mortality perfor mance standard is one of seven compliance alternatives and EPA expects that the numeric perfor mance standard will be the selected compliance alternative for only a sma ll portion of intakes. The problems described would not affect compliance via the compliant technology alternatives (i.e., closed-cycle, 0.5 ft/sec velocity, and existing offshore intake). Ther efore, EPA would expect a facility that has debris concerns will elect to choose one of th e other six IM compliance alternatives. To the extent that a facility elects to comply with the IM standard via the optimized traveling screen or system of technology compliance alternatives, the Director will have the discretion to consider the impacts of the problems described. For th ese reasons, EPA has concluded that specific provisions regarding de bris are not needed.

IM Monitoring Methods Many commenters expressed concern that there is no single, standa rdized approach to measuring impingement survival, because the collection and holding systems must be designed for each individual facility. They argue that the tests are time-consum ing and expensive to perform, unduly burdensome, difficult to repl icate, and subject to high leve ls of experimental error. One stated that EPA has not adequately recognized th e difficulty of maintaining fish for a period of time and that using this kind of problematic proc edure to determine compliance is unreasonable. One argued that such monitoring is unwarranted on ce either of the prescribed BTA standards has been met. One noted that EPA admits that it cann ot point to standard methods for the collection and analysis of the type of bi ological samples called for in the Proposed Rule, much less for the determination of latent mortality and distinguis hing it from natural morbidity. In general, they conclude that it is not feasible to regulate im pingement mortality by requiring achievement of an IM numeric performance standards applied to pol lutant discharges and suggest that EPA should delete or modify monitoring requirements for faci lities that can demonstrate that their technology design meets EPA requirements and they are complying with an approved operation and maintenance plan. Riverkeeper states that EPA should require the Direct or’s approval for all sampling plans. EPA recognizes that at presen t, there are no standard methods for conducting

Essay 22 276impingement and entrainment studies and that th ere can be variability in designing a sampling plan between sites. EPA disagrees, however, th at it is not feasible to regulate impingement mortality using a numeric performance standard and notes that the general methodology has been well-established over the 25-plus year timeframe facilities have been conducting impingement survival studies. EPA also disagrees that an impingement sampling plan must be approved by the Director prior to sampling. See DCN 10-6706 fo r a discussion of some fundamental study elements and parameters that are universally essential for the completion of impingement and entrainment surveys and DCN 10-6708 for a discussi on of elements that should be incorporated into any sampling plan. EPA however, understands that many facilities would prefer to comply via alternatives that require less ongoing biological monitoring that involves less associated uncertainty and lower costs. EPA has addressed th is by establishing in th e final rule numerous other compliance alternatives that do not requ ire ongoing biological impingement mortality monitoring. These alternatives in corporate many of the suggested approaches including defined compliant technologies that only require certif ication of continued optimized operation and maintenance. In many cases, impingement data co llection will be required only for an initial twoyear study period.

IM Monitoring at Each Intake Several commenters asked about consolidating or eliminating monitoring requirements. They asked if IM monitoring could be conducted on a un it basis, rather than at each intake; if IM monitoring at a single intake could be used as a surrogate for sim ilar intakes; and if facilities could, for compliance with IM performance standa rd, combine or average the counts of organism IM across intakes. Today’s rule establishes IM sta ndards that may be applie d at either the intake level (such as intake velocity) or the facility le vel (such as volume of intake flow). The rule clarifies that facilities may a dopt an intake-specific compliance strategy at each cooling water intake; accordingly, individual monitoring and compliance requirements are applied at each intake. Given that source water and operational conditions at individual intakes may vary, as further demonstrated by some data sets provided by commenters, 48 the final rule does not allow the owner or operator to consolid ate or eliminate monitoring to demonstrate compliance at each intake complying with the IM performance standard.

EPA notes that today’s final rule has remove d biological compliance monitoring requirements for the compliance paths based on “pre-approved ” technologies. In a ddition, there are three “streamlined” compliance alternatives available at 40 CFR 125.94(c)) (3), (5 ) and (6) that, after a facility has made a demonstration of system op timization as to minimize impingement mortality, have no subsequent biological monitoring and repor ting requirements as compared to a facility that complies using the numeric impingement mortality performance standard. Therefore, there are several compliance alternatives available fo r facilities wishing to reduce or eliminate ongoing biological monitoring requirements. Note that these facilities s till have biological characterization data gathering requirements as part of any subsequent permit applications.

One commenter questioned whether facilities co uld have relief from IM monitoring during downtime or extreme circumstances. As shown in Exhibit VIII-1 of the preamble, EPA has

48 For example, where intakes are located parallel to the sh oreline and on a river bend, the upriver intake generally shows much higher rates of impingement.

Essay 22 277projected that the overwhelming ma jority of the facilities within the scope of today’s rule will select IM compliance alternatives that do not have bi ological monitoring requirements. For the very small number (less than 1 percent) of inta kes that are projected to demonstrate compliance with the IM performance standar d, biological monitoring is only required on a monthly basis and not required during downtime or when the facil ity is not otherwise operational. Waiver of monitoring requirements during extreme events is not necessary because monitoring can be scheduled around short-term or emergency condi tions. Such conditions should not affect a facility’s ability to comply w ith the 12 month impingement mortality performance standard, and such conditions should not interfere with ove rall optimized performance of impingement minimization technology or a suite of technolog ies. EPA expects that once a sufficient body of performance data has been collected, the faci lity would request less frequent biological monitoring under 40 CFR 125.96(f). Further, once the technology has been demonstrated to the satisfaction of the Director, EP A expects the facility would u tilize compliance alternative 40 CFR 125.94(c)(6) in subsequent permit cycles. Th erefore even new and innovative technologies have a venue for demonstration of performance e quivalent to that requi red by the IM standard, and EPA does not expect any facility would n eed to conduct frequent biological monitoring in perpetuity to comply with the BTA for IM.

Remote and Visual Inspection Commenters were concerned about the implem entation of the required remote and visual inspections. The final rule requi res all facilities with new un its to either conduct visual inspections or employ remote monitoring devices when the cooling water intake structure is in operation. The facility must conduct such inspec tions at least weekly to ensure that any technologies installed to comply with 40 CFR 12 5.94 are maintained and operated to ensure that they will continue to function as designed. So me commenters supported th is particular provision. EPA agrees that periodic insp ections are one way to ensure that a technology continues to perform as intended and has retained these inspec tions. EPA is aware that, for some facilities, this requirement could pose a feas ibility challenge (for example due to ice cover in the winter season, inability of divers to see through more than a few inches of water, or certain intakes in deep water). The rule, therefore, authorizes the Director to establish alternative procedures. See 40 CFR 125.96(e).

Monitoring Feasibility Some commenters were concerned about challenging physical or ot her logistical conditions that would render the methodology and frequency of monitoring specified in the proposed rule impossible or impracticable. Commenters gave th e example of CWISs that are located under or adjacent to active wharves or marine terminals where collecting the samples specified in the proposed rule would require putting divers in ac tive shipping lanes or shutting down commerce for the duration of the sampling. Other examples of the challenges associated with impingement sampling provided in comments included impingeme nt events caused by storms, the effects of mortality caused by sample hol ding, physical challenges to acce ss proper sampling locations or to house biologists or analytical equipment, how to account for “carry over” of organisms not removed by the spray wash system, and selecting an appropriate sampling location that balances scientific integrity and worker safety. Commen ters noted that the proposed rule allowed for compliance monitoring to take pl ace at a location other than at the intake itself “where

Essay 22 278appropriate,” and “as approved by the Director” in situations involving (but not limited to) forebays, barrier nets, or fish handling and retu rn systems. They were concerned, however, that EPA did not specify the circumstances that woul d qualify for an alternative monitoring location.

EPA recognizes that some facilities may be f aced with certain challenges in developing and implementing a sampling program for impingement mortality. First and foremost, more than 90 percent of facilities are expected to choose a compliance alternative that does not require biological compliance monitoring to demons trate compliance with the numerical IM performance standard. Second, as noted above, this type of sampling is not new and has been in use at many facilities for several decades; to wit, the studies us ed to develop the impingement mortality performance standard demonstrate the availability and common use of these sampling techniques. In fact there ar e hundreds of studies in the re cord, spanning a full range of waterbodies, intake types, and CWIS includ ing successful monitoring by those “difficult” situations described by commen ters. EPA further considered these feasibility concerns by incorporating flexibility in the compliance alternatives established in today’s final rule; not all compliance options require impingement morta lity monitoring, only one alternative requires biological compliance monitoring wh ich EPA projects would be us ed by at most 1 percent of facilities as described above. All compliance alte rnatives include reduced monitoring over that which was described in the proposed rule. For in takes without traveling screens or those that have inaccessible sampling locations, the rule pr ovides IM compliance alternatives that do not involve routine monitoring of impingement ra te or impingement mortality (e.g., velocity reduction and system of technologies).

In addition, facilities with intake structures that do not use trave ling screens or other technologies that return fish unharmed to the waterbody may choose to comply with IM requirements via the “system of technologies” alternative. Compliance w ith this alternative is based on a combination of A) reduction in rate of impingement; B) reduc tion in impingement mortality; and C) reduction in flow. Only component B (reduction in mortality) involves frequent (mon thly) biological data collection for at least two years. Component B can be zero as long as the other two are sufficient to meet the BTA standard. If there is no fish re turn then component B will be zero by design and there will be no need to perform monthly impi ngement data collection. Component A (reduction in the rate of impingement) may involve some initia l biological data collec tion (near-field versus far-field, inspection for impinged organisms, etc. ), but will likely be short-term and acceptable requirements will be subject to the discretion of the Director who can take site-specific limitations into consideration. Component C (flo w reduction) can easily be monitored without interfering with terminal operations. Only comp onent B (reduction in mortality) would require frequent monitoring or inspection activities that might interfere with terminal operations beyond the initial assessment. EPA has concluded that am ple flexibility has been provided in the final rule, allowing facilities to choose a compliance alternative that obviates monitoring feasibility

concerns.

Taxonomic Identification One commenter expressed concern that very fe w facilities would have employees with the education and experience necessary to make taxonomic determinati ons that would be required to monitor compliance with more-complex IM perf ormance standard with different requirements for different groups of fish. Specialists needed to monitor IM do not exist at most facilities that

Essay 22 279will be subject to the rule, and especially not at the manufacturing facilities and smaller electric utilities formerly covered by the Phase III rule. EP A agrees that such skills may not be present within the existing workforce and included in the ICR costs estimates the costs for skilled contract employees necessary to conduct biologi cal monitoring. EPA also notes that in most cases such monitoring will only need to be con ducted for an initial two-year study period. Those facilities that choose to comply with the impingeme nt standard via the inta ke velocity or flow reduction commensurate with CCRS standards will not be required to conduct any biological compliance monitoring at all.

Converts One commenter expressed concern that EPA offers no remedy for non-compliance resulting from converts. EPA disagrees. EPA has de fined impingement at 40 CFR 125.92(n) and entrainment at 40 CFR 125.92(h). These definitions ar e mutually exclusive in that the definition includes a mesh size of 0.56 inches. This approa ch completely eliminates any miscounting of converts. This approach was also adopted in the final rule to avoid pena lizing facilities that utilize fine mesh screens and thus inflating the count of I and IM, as di scussed in the preamble.

Moribund Organisms One commenter stated that scientific informati on exists indicating that impingement “selects” fish and shellfish of impaired health condition and, therefore, violations of the standards are likely to be frequent. Another commenter suggeste d that specific language should be drafted to account for naturally occurring mortal ity-inducing situations, such as due to red tide, so that the facilities are not adversely penali zed for the natural mortality. EPA agrees that some organisms may become impinged as a result of their hea lth being impaired due to naturally occurring factors. The final rule specifica lly allows for fish and organism s that are moribund (i.e., close to death) to be taken into acc ount; see 40 CFR 125.94(c)(7) refere nce to “latent mortality.” The impingement mortality performance standard specifically excludes fragile fish from the calculation of impingement mortality. EPA has conc luded that specific language is not required since the Director has discretion to take into consideration si te-specific characteristics and condition of local fish species when establishi ng monitoring and reporting protocols. Also for compliance options involving traveling screens a nd system of technologies, the Director has discretion in determining what level of impingement meet BTA requirements.

Biofouling One commenter expressed concern that annual or bi-annual biofouling control measures to combat invasive bi-valve species (e.g., zebra musse ls - mortality of both bivalve and fish species can occur prior to screened intakes as determ ined by the design of the once through cooling system) and requested that monitoring should ex clude periods during whic h facilities undertake biofouling control measures. EPA notes that co ntinuous biological complia nce monitoring is notrequired. Monitoring requirements for entrainment will be determined by the Director on a sitespecific basis. In both cases, the Director has wide discretion in determ ining whether monitoring periods should include episodes of employment biofouling control measures. EPA expects that the Director would take into c onsideration the frequency of such measures in any determination of protocols and frequency of monitoring requirements.

Essay 22 280Zero Catch One commenter observed that zero catches provide a statistical analysis problem in determining monthly and annual averages and questioned wh ether zero catches woul d be counted as zero mortality or as no data. EPA has concluded that, since the standard is expressed as a percent of total, the proper handling of the circumstance where no impingement occurred would be to count this as “no data.” See Essay 16. Another commen ter noted that EPA should adopt a provision for facilities with very low impingement rates. EP A disagrees that zero catches would result in compliance issues, because compliance altern atives 40 CFR 125.94(c)(1) through (c)(4) do not require counting of fish, and compliance unde r 40 CFR 125.94(c)(5) and (c)(6) are based on those permit conditions that result in optimi zed performance of the BTA technologies. These permit conditions reflect the optimization study required at 40 CFR 122.21 (r)(6) and reviewed by the Director, and the study would already reflect low rates of I or IM, including zero catches. Further, EPA has a de minimis rate of impingement alternative 49 at 40 CFR 125.94(c)(11); see preamble for more details.

New Units Some commenters stated that th e monitoring requirements for new units were excessive. EPA disagrees. Without any monitoring data regarding the facility’s in take flow and other parameters, the Director may not be able to determine if th e new unit’s closed-cycle system is operating in a manner that minimized makeup and blowdown. Furthe r, in most cases, new units would meet the BTA requirements with CCRS under 40 CFR 125.95( e)(1). This altern ative requires a demonstration of flow for the new unit commen surate with CCRS requires flow monitoring, a parameter that is highly automated and very in expensive. This monitoring requirement imposes virtually no burden. Flow monitoring for fac ilities that choose 40 CFR 125.95(e)(2) must demonstrate entrainment reduction e quivalent to 90 percent or grea ter of the reduction that could be achieved through compliance with 40 CFR 125.95( e)(1). The type of monitoring in these circumstances is variable, and may include biolog ical data collection in some cases. However, EPA concludes the requirements are necessary, r easonable, and affordable, and the requirements are similar to those required of new facilities in Phase I. Further, as noted in the comments (and in the rule), the Director may eventually redu ce these monitoring requirements after the cooling system has been confirmed to reduce flows to the necessary levels. Additionally, EPA expects that the monitoring required will be very simple and relatively inexpensive—monitoring of flows into and out of the system is easily accomplished, especially w ith modern instrumentation and design that would accompany a newly constructed unit.

Counting Impinged Organisms with the “Hypothetical Net” Commenters had varying concerns about the procedures for c ounting impinged organisms using the “hypothetical net,” such as concerns over inte ractions with debris and how biologists would utilize a hypothetical net on segregating organisms during a sampling event. Several commenters agreed that impingement mortal ity should only be calculated usi ng the organisms that would not have passed through a 3/8-inch mesh screen, while others thought the hypothetical net calculation would add significant difficulty to monitoring for impingement and entrainment.

49 EPA did not predict which facilities would obtain Director approval to comply with IM via 40 CFR 125.94(c)(11); EPA assumed costs for technologies for all f acilities; see the TDD for more information.

Essay 22 281EPA maintains that this concept is still appropriate, as a facility needs a method to distinguish “impingeable” organisms from “entrainable” organisms, particularly at facilities with fine mesh screens or other technologies that differ from the basic screens with a mesh size of 0.56 inch. By impinging smaller life stages (which typically have lower impingement survival rates than larger organisms), affecting the facility’s overall impinge ment mortality rate and its ability to meet the performance standard; the hypothetical net help s these facilities by eliminating smaller organisms from the group of organisms that will determine compliance with the performance standard. Though today’s rule no longer men tions the proposed procedures for counting impinged organisms using the “hypothetical net,” the impingement mortality restrictions in the final rule are based on the operation of a modified traveling screen with a fish return. To ensure that a facility’s monitoring plan is consistent with the technical basis for today’s requirements, for those facilities that elect to comply w ith the IM standard via biological compliance monitoring, EPA is requiring facilit ies to monitor impingement mortality using a sample that has been passed through a sieve or net with no mo re than 0.56 inches maximum opening, so that only organisms that do not pass through this mesh size are counted. In doing so, facilities would retain (and therefore count) only organisms that would have been impinged on a 3/8-inch mesh screen, which was the technological basis used for developing the impingement mortality performance standard. As such, facilities can sim ilarly apply a “hypothetical net” in that they could elect to count only orga nisms that would not have passed through a net with mesh openings less than 0.56 inches. The example given in the preamble is that a facility using a finemesh screen of 0.5 mm or diverti ng the flow directly to a samp ling bay will need to count only organisms that remain if the flow passed through a net, screen, or debris basket fitted with 3/8­ inch mesh spacing.

One commenter suggested that EPA must defi ne what organisms are impingeable (versus entrainable) and evaluate the f easibility and performance of t echnologies for reducing mortality to organisms of that size and type. The commente r stated that, for facilit ies that cannot comply via the low velocity compliance alternative, requir ing direct monitoring of all life stages of fish that are collected or retained in a 3/8-inch sieve unacceptably increases hazards to these organisms. EPA notes that the use of a sieve with a maximum opening dimension of 0.56 inches (3/8-inch) during sample collection is inte nded to distinguish between impingeable and entrainable organisms for regulatory purposes and mu st be used only in conjunction with intake screens that use finer or coarser mesh screens. EPA has concluded that this method is much more preferable since it is based on the design a nd performance of the BTA impingement technology upon which the performance standard is based and is relatively simple to implement. An attempt to define impingement and entrainment using lists of species and sizes would be a very difficult and imprecise method both to develop and implemen t especially considering the available data limitations.

Methods for Evaluating Latent Mortality Effects Resulting from Impingement Commenters responded to EPA’s request for comm ent regarding methods for evaluating latent mortality effects resulting from impingement . They were primarily interested in EPA establishing procedures for evaluating latent mort ality, or eliminating the requirement entirely. Some commenters noted that th ere are significant challenges in conducting latent mortality studies and offered suggestions for how to conduct these studies or to interpret the results.

Essay 22 282Today’s rule establishes the hol ding time for evaluating latent mortality (under the performance standard) as a period of 18 to 96 hours; the Direct or will ultimately select an appropriate holding time based on site-specific considerations, such as the species present. The Director has the discretion to prescribe an alternative holding pe riod. After evaluating the data, EPA concluded that a range of holding times of 18 hours to 96 hours was acc eptable for inclusion in the development of a performance standard b ecause commenters had provided documentation showing that the actual time period typically had little effect on IM rates; see Chapter 11 of the TDD, Essay 16A, and the preamble for more disc ussion. Selecting an appropriate holding time will be a balance of monitoring for latent mort ality (which would necessitate longer holding times) against the challenges of holding organism s for an extended period of time that may introduce mortality unrelated to being impinged (e.g., predation in the holding tank, needing to feed the held organisms). In contrast to the propo sal, EPA counted all fish that died at any time during the holding period, instead of excluding those that were d ead at time zero. By considering a wider range of holding times and other requiremen ts, EPA was also able to utilize a larger set of data for calculating the performance standar d, with broader geographi c representation. (For more information, see DCN 12-6703.) The rationale for these revisions to the data acceptance criteria are described in further detail in the TDD, Chapter 11. EPA’s evaluation of holding times is further discussed in Essay 16A.

EPA disagrees that monitoring requirements shoul d not include evaluation of latent mortality. Facilities monitoring to demonstrate complia nce with the numeric impingement mortality performance standard must measure mortality, in cluding latent mortality, for each non-fragile, non-threatened, and non-endangered species. As disc ussed above, the rule e xplicitly references “latent mortality” to provide clarity. One comm enter expressed concern that without a control test of similar species that was not exposed to impingement, it is not possibl e to determine whether any latent mortality was the result of impingement, entrainment into the sampling equipment, confinement within the handling/co llection system, exposure to other organisms within the collection system or organism hand ling related to monitoring. Generally, up to 10 percent mortality in a control test is considered acceptable in a whole effluent toxicity WET test and 10 percent mortality related to test conditi ons alone is too similar to the proposed annual average impingement mortality standard. EP A has revised the impingement mortality performance standard in the final to a value which is significantly greater than the 10 percent test related mortality suggested by the commenter. EPA’s standard does not include a control adjustment since the standard itself was developed with the effects of the sampling procedure built-in. EPA expects that facilities will design and conduct the tests in a manner that minimizes the effects cited and has concluded that facilities should be able to replicate the pr ocedures used in the studies that comprise the standard deve lopment database. Also, EPA expects that many of the species most susceptible to increased mortality as a result of the sampling methodology are also fragile species which are excluded from th e calculation of impingeme nt mortality. Also see Essay 16A.

Reporting Requirements and Record Keeping In general, commenters were concerned about the burden associated w ith reporting requirements and the logistical difficulties in submitting reporting through monthly discharge monitoring reports (DMRs), such as the lag time for bi ological analysis of impingement sampling. Commenters also thought that the separate annua l certification statement was not necessary, as

Essay 22 283the information required in th e certification could be addres sed through monthly or quarterly reporting as required in the facility’s permit. Some commenters suggested that the annual certification statement and report only be required when significa nt modifications are made to the approved technology or the f acility’s implementation practices.

EPA disagrees that DMRs are an inappropriate submittal vehicle for all required reports. Today’s rule requires that the results of all monitoring, demonstratio ns, and other information to determine compliance with the permit conditions and requirements established under 40 CFR 125.94 be included with the facil ity’s DMR or equivalent repo rt. The required reports for monitoring activities are similar to requirements th at are already in NPDES permits for effluent discharges. DMRs are a routine and existing mechanism for reporting monitoring data that is required by an NPDES permit. In addition, the Dire ctor has discretion in choosing the format of the DMR or the portion of the DMR used to s ubmit required monitoring data. Similarly, the Director may allow some degree of lag time in submitting analyses that require lengthy analysis, as appropriate. EPA expects that , during the near term, EPA a nd State NPDES Authorities will be making a number of revisions to the NPDES program to address today’s requirements. These will include revisions to the DMR reporting form in some cases to provide for submission of any monitoring data required by today’s final rule.

EPA has simplified the requirements for the annu al certification and report requirement. Facilities that have no t substantially modified approved tech nologies or implementation practices may submit a letter asserting that the informa tion contained in the previous year’s annual certification is still pertinent.

Facilities that have substant ially modified operation of any unit that impacts cooling water withdrawals or operation of coo ling water intake structures mu st provide a summary of those changes in the annual certification report and su bmit revisions to the information required at 40 CFR 122.21(r) in its next permit application.

Many of the peripheral concerns mentioned by commenters were addr essed earlier in the essay in the response monitoring a nd reporting burden issues.

Compliance with Other Laws For a discussion of EPA’s consid eration of relevant acts of C ongress, Executive Orders, and Agency Initiatives in developing this final ru le, see the final preamble. Also see Essay 59.

Commenters were concerned that to day’s rule not be applied in a manner that results in conflicts with other regulations, including the Informati on Quality Act (IQA). The commenter concerned about the rule’s conformation with the IQA pa rticularly noted that EPA has not met the obligations of the IQA is disclosing all the statisti cal and scientific information used to calculate costs, quantify benefits, and to justify the Agen cy’s option selection. EPA disagrees that it has not met the transparency obligations set fort h in the IQA. Throughout the 10-plus years and multiple proposals and NODAs associated with this rule, EPA has published a public docket including all the relevant materials not pr otected by confidential business information requirements used in the development of the ru le. In addition, EPA published the Environmental and Economic Benefits Analysis for Proposed S ection 316(b) Existing Facilities Rule, Economic and Benefits Analysis for Proposed Section 316(b) Existing Facilities Rule, and the Technical

Essay 22 284Development Document with the 2011 proposed rule that described the sta tistical and scientific information used to calculate the costs and quantif y the benefits of the ru le. Stakeholders have had multiple opportunities to comment on these ma terials and request additional clarification about EPA’s procedures to calcula ting the costs and benefits that ultimately led to the regulatory options selected in today’s rule. In some cases, industry commenters requested EPA provide Excel spreadsheets with the models, data inputs, and outputs; EPA did so. EPA is not required to publish a formal analysis of its compliance with the IQA. However, EPA is confident that it has provided adequate access to all relevant materials and data used in the development of the final rule. Also see response to Essay 59.

Another commenter was concerned about the rule’s impact on manatees, an endangered species. The commenter requested that EPA include a provision in the final rule stating that the regulations will not be construed or applied in a manner that results in adverse impacts to manatees or critical manatee habitat. The final ru le has not made any specific mention of impacts to manatees but does consider threatened and endangered species, including 40 CFR 125.94(c)(9)(ii) for other aquatic organisms. The fina l rule provides the Director the discretion to establish alternative entrainment requirements for new units if the data specific to the facility indicate that compliance for each new unit w ould cause adverse impacts on threatened and endangered species. Similarly, for ex isting units, the Director may consider in the site-specific BTA determination quantified and qualitative social benefits a nd social costs of available entrainment controls, including ecological benefits and benefits to any threatened or endangered species. Finally, the rule provides seven alternat ives through which facilities may comply with the today’s IM requirements. This flexibility allows facilities to select a si te-specific approach to achieving compliance with applicable requirement s while addressing indivi dual constraints such as the presence of threatened and endangered sp ecies. See Section VIII.K of the preamble for how permits for existing facilitie s subject to requirements under the Endangered Species Act will be handled. The 316(b) rule and preamble esta blish a number of requirements and commitments to ensure coordination and information sharing between EPA and the Services concerning permit applications and permit requirements for facilitie s with cooling water intakes under the rule. The rule ensures that the Services will have an ear ly review of permit applications, will have the opportunity to recommend measures to include in the permit to protect liste d species and critical habitat, and will have an opport unity to review draft permits for the same purpose at the time they are public noticed. The rule also specifies the Director’s authority to include measures in the permit to protect listed species and critical habitat. The preamble reaffirms EPA’s commitment to coordinate with the Services on State-issued permits and so that they include measures necessary to ensure that the permit will not jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designate d critical habitat. Also see Essay 10.

State 316(b) Programs EPA notes that in a number of areas of the c ountry (California, Dela ware, New York, and New England), permitting authorities have already required or are considering requiring existing facilities to install or retrofit to closed-cycle c ooling systems. Today’s fina l rule does not alter the basic State-Federal scheme established in th e CWA under which EPA authorizes States to implement the NPDES permitting program, including, according to their own rules and regulations, implementation of more stringent requirements. Existing facilities are in these states

Essay 22 285are still subject to the Federal rule but some State requirements were considered in costing. In addition, the today’s final rule addresses the permit applicatio n requirements and ongoing permit proceedings for these facilities at 40 CFR 122.21(r)(1) and 40 CFR 125.98(g).

Director’s Role Overall, many commenters urged EPA to allow th e Director wide disc retion in making sitespecific BTA determinations (including expanding the list of factors th at the Director may consider in setting entrainment requirements a nd allowing the Director to tailor entrainment requirements to minimize the burden of compliance) , requiring permit application materials, and setting monitoring and reporting re quirements. Several commenters requested that EPA delete the provision asserting that the permitting author ity can include more stringent state-law-based requirements in permit conditions implementing the regulation. Commenters also requested exemption from impingement and entrainment mo rtality BTA analysis requirements for all facilities where final BTA determinations have been reached since EPA suspended the prior Phase II rule.

EPA agrees that the Director needs wide discre tion in making many determinations relevant to each facility. In today’s final rule, EPA requi res the Director to make site-specific BTA determinations for entrainment. In addition, the Director has the discretion to waive or delay some permit application materials, and implement reduced monitoring and reporting requirements. These concerns are further addresse d earlier in this essay. More specifically to CCRS, EPA agrees that fogging, icing, salt drift, and visibility or aesthetic impacts may also be considered in making a BTA dete rmination, although these factors are likely to be less important because such impacts are easily overcome by modern cooling tower design.

Setting More Stringent Standards EPA disagrees that it should prevent States from mandating more stringent performance standards than those set by today’s rule, and it also disagrees that allowing States to set more stringent requirements will cause excessive energy costs. With the promulgation of the final rule, EPA has set national standards for the reduction of entrainment and impingement mortality. EPA understands, however, that the original intent of the Clean Water Act includes broad authority for States to implement CWA requirements. Thus, EPA has left a great deal of discretion to the individual State permit administra tors (Directors) in setting the appropriate requirements for their facilities, as long as the require ments are not less stringent than minimal Federal requirements established by today’s rule. While States are obli gated to ensure that the facilities in their jurisdiction comply with minimum Federal requirem ents, they are also authorized to set more stringent standards if they desire. EPA has determ ined that allowing States to set more stringent requirements will not increase energy costs or decrease energy reliability.

Permit Proceedings Begun Prior to the Effective Date of the Final Rule EPA recognizes that some Stat es have invested considerab le effort in developing and implementing section 316(b) permits and facilities have invested significant resources in meeting those requirements. While toda y’s final rule does not gran t automatic exemption from impingement and entrainment mortality BTA analysis requirements for all facilities where final BTA determinations have been reached sin ce EPA suspended the prior Phase II rule, the

Essay 22 286regulation at 40 CFR 125.98(b) and (g) allows th e Director flexibility where there are ongoing permit proceedings or where a BTA determination has already been made based on substantially the same information required at 40 CFR 122.21(r). In the case of permit proceedings begun prior to the effective date of the final rule, th e Director may determine whether the information already submitted is sufficient. As such, the Dir ector has the discretion to confirm or proceed with a determination of BTA standards for impi ngement mortality and entrainment without the information required in 40 CFR 122.21(r). The bases for the Director determination of sufficient information and BTA are sp ecified at 40 CFR 125.98(g).

Establishing a Policy to Disallow EPA Comments One commenter requested that EPA establish a policy to accept the State permitting authority’s BTA determination based on BPJ without allowing EPA regional staff to object to draft permits. EPA disagrees such a policy could be estab lished and reminds the commenter that NPDES permits, including 316(b) permit conditions, are subj ect to EPA oversight and also to the public notice and comments requirements at 40 CFR 124.10 and 40 CFR 124.11. The regulations mandate a public comment period during which any interested person may submit written comments on the draft permit or the permit appl ication during the required public comment period provided. These comments could include objections to a State permitting authority’s BTA determination. In addition, the regulations at 40 CFR 124.13 specifi cally require that all who have concerns that any condition of a draft perm it is inappropriate must raise all reasonably ascertainable issues and submit all reasonably av ailable arguments supporting their position by the close of the public comment period. As suc h, EPA will not establish a policy that would circumvent the legal requirements required of the NPDES program including public notice and comment procedures.

Requiring Additional Information One commenter requested that the final rule be re vised to specify that the permitting agency will use the data submitted in the pe rmit application to address the factors at the proposed 40 CFR 125.98(e)(1)-(9) and the facility w ill not be required to perfor m any additional studies. EPA disagrees that the Director should be limited to the information submitted with the permit application. In the final rule, EPA specifies at 40 CFR 125.98(i) that Direct or is authorized to inspect the facility and to request additiona l information needed for determining permit conditions and requirements. As such, the Director is explicitly granted th e discretion to request additional information or require the facility to co nduct additional independent studies deemed necessary to aid the Director in the BTA determination.

Communications and Outreach Several commenters requested specific and general guidance rega rding procedures for implementing the requirements established in the final rule. Commenters urged EPA to maintain open communications with stakeholders throughout the rulemaking and op tion selection process and to work closely with States regarding regulatory requirement s after publication of the final rule. EPA agrees on the importance of open co mmunications and notes that the Agency has actively engaged the stakeholders in significant consultation a nd outreach activit ies during the development of the final rule. Stakeholders ha ve actively participated throughout the several

Essay 22 287phases over a decade of rulemaking. In particular, given that the fi nal rule addresses facilities that had been previously regulated by the Phas e II and Phase III rules, stakeholders have been provided with ample opportunity to participate in the process. EPA has staged symposia, held conference calls, conducted facility site visits, and performed ot her activities where EPA sought the input from various stake holders. In addition, there have been many opportunities for stakeholders to comment throughout the different phases of 316(b) regulatory development. EPA considered all comments and concerns raised throughout the rulemaking process and addressed them, where relevant, in today’s final rule. EPA will evaluate the need for implementation support and guidance after publicatio n of the final rule as the fi nal rule will be implemented through the existing NPDES programs. EPA notes th at the final rule does provide some guidance to Directors; for example, the preamble states that the Director may determine that no additional entrainment controls may be required if all anal yzed options have social costs that are not justified by the social benefits (see discussion be low). EPA staff also will be available to assist State permitting authorities in the review and approval of permit applications.

Dry/Hybrid Cooling Towers Several commenters requested that the rule prec lude dry and/or hybrid cooling towers as BTA for impingement and entrainment mortality contro ls. EPA disagrees that dry or hybrid cooling towers should be precluded as BTA op tions. Today’s rule states that a closed-cycle recirculating system may include a facility with wet or dry co oling towers. In additi on, flow reduction has been defined as any modification to a cooling water intake structure or its operation that serves to reduce the volume of cooling wa ter withdrawn, including variable speed pumps, seasonal flow reductions, wet cooling towers, dry cooling towe rs, hybrid cooling towers, unit closures, or substitution for withdrawals by reus e of effluent from a nearby fac ility. As today’s rule allows operation of a CCRS or various flow reduction measures to comply with the impingement mortality BTA standard, EPA has chosen not to preclude dry or hybrid c ooling towers as BTA technologies. In some locations, availability of wa ter may result in the need to consider hybrid or dry cooling. Manufacturing facilities already incor porate dry cooling in many unit processes; this indicates that dry cooling is ava ilable and demonstrated in at leas t some situations. Further, EPA intends for manufacturers to obtai n credit for flow reductions al ready obtained; see preamble for more discussion. Note, however, that EPA recogni zes that dry cooling is significantly more expensive that wet cooling. The use of dry cool ing towers is further discussed in Essay 17A.

Social Cost

‐ Benefit Analysis in Establishing Entrainment Standards Commenters on this topic requested clarificati on of the social cost-b enefit test. Several commenters also requested that EPA clarify that the State Director must apply cost-benefit in establishing entrainment standards and must reject an available te chnology if its costs are not justified by the benefits. Some commenters also stated that si te-specific cost and benefit estimates be used in determining BTA, as opposed to national scale or model costs. The role of cost and benefits (including a specific cost-benefit test) is discussed in Essay 15.

The rule states that the Director, in establis hing a facility’s site-specific BTA entrainment reduction requirement, must consider the factor s spelled out in 40 CFR 125.98(f). Today’s final rule does not specify the weight the Director must afford each factor when determining entrainment requirements. These factors incl ude a requirement that the Director must consider the quantified and qualitative social benefits and costs of availa ble entrainment technologies. The

Essay 22 288Director must determine whether the entrainment technologies considered ha ve social costs that are justified by the social be nefits, or whether the technol ogies would cause unacceptable adverse impacts that cannot be mitigated. In such cases in which the information on benefits is adequate to make this determination, the Direct or has the discretion to reject an otherwise available technology as BTA standard s for entrainment if the social costs are not justified by the social benefits and determine that no additiona l control requirements ar e necessary beyond what the facility is already doing. Ge nerally, EPA agrees that site-s pecific estimates of costs and benefits are preferable for determining BTA; however, estimates that are calculated using a model cost approach (for example) should not be discarded, as they still likely provide some value, particularly if site-sp ecific data is absent or incomplete. See Essay 15 for additional discussion on the role of costs and benefits in determining BTA.

Today’s rule also allows the Di rector to establish alternative entrainment requirements for new units if the data specific to the facility indica te that compliance for each new unit would result in compliance costs wholly out of proportion to th e costs EPA considered in establishing the requirements at issue or would result in si gnificant adverse impacts on local air quality, significant adverse impacts on local water resour ces other than impingement or entrainment, adverse impacts on threatened and endangered sp ecies, or significant adverse impacts on local energy markets. This provision is identical to such a provision in the Phase I rule for new facilities. See the preamble for further discussion.

Essay 22 289

### Essay 23: EPA’s Information Collection Request (ICR) and Administrative
Costs of the Rule

In addition to technology costs and O&M costs incu rred as a result of complying with the rule, facilities will also incur administ rative costs to comply. Examples of these costs are the cost of obtaining a 316(b) NPDES permit (including th e costs of preparing an NPDES permit application), ongoing monitoring costs, and the costs of materials purchased to support a facility’s demonstration of compliance. These costs can be ex pressed in terms of labor hours to complete a given task or in dol lars required to purchase the n ecessary materials (also known as “other direct costs” [ODCs]).

The Paperwork Reduction Act requires that ever y Federal agency obtain approval from the Office of Management and Budget (OMB) before collecting the same or similar information from 10 or more members of the public. If EP A decides to gather such information, the EPA must prepare and submit for approval to OMB an Information Collection Request (ICR). The ICR describes the information to be collected, gives the reason the information is needed and estimates the time and cost for the public to an swer the request. Afte r reviewing the ICR and comments received from the public, OMB may appr ove or disapprove the ICR. An agency may not conduct or sponsor, and a pers on is not required to respond to, a collection of information unless it displays a currently valid OMB cont rol number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR Part 9.

In the proposed Existing Facilities Rule, EP A described the proposed information collection requirements (e.g., new submissions th at would be required as part of the permit application) and included costs associated with in formation collection requirements in the costs of the proposed rule. EPA also reported estimated burden associat ed with the information collection requirements for the total industry, for indivi dual facilities, and for the Directors. See 76 FR 22262-22263. For the proposed rule, EPA based its information collect ion cost estimates on its previously approved ICR for the Phase II rule.

Today’s final rule streamlines some aspects of the permit application and implementation process and would impose reduced information collection requirements in comparison to the Phase II rule. For example, six of the seven IM compliance alternatives eliminate the need for costly biological compliance monitoring as co mpared to the Phase II rule. However, EPA recognizes that some facilities subject to today’s final rule were not subject to the Phase II rule.

EPA received comments on its information collection estimates in the proposed existing facilities rule. Where appropriate, EPA revised the informati on collection requirements in the final rule to incorporate these comments. EPA has also deve loped a new ICR rule to accompany this final rule that more accurately reflects the requirements and applicability of this final Existing Facility Rule. EPA notes that its total burden estimat e associated with the information collection requirements in today’s final rule is much less th an that estimated at the time of the proposal. Further, this new ICR also provi des more meaningful information because, as explained above, it reflects both the applicability and requirements of today’s final rule after consideration of public comments on the proposal (and subsequent Notices). EPA is publishing in the Federal Register

Essay 23 290this new ICR to provide the public an additi onal opportunity to comment on the associated burden. Following receipt and consideration of the comments, EPA will again publish it in the Federal Register and submit the ICR to OMB fo r approval. While the public has already been provided the opportunity to comment on the in formation collection requirements and burden throughout this rulemaking process, this approach provides yet another op portunity to comment on EPA’s estimates before OMB makes its final determination. As such, EPA is not in violation of the Paperwork Reduction Act. The Paperwor k Reduction Act requires EPA to make the ICR available for public review and co mment, but it has no requirement to do so at the same time that a proposed action is made available for comment. EPA also notes that no facilities will be required to submit any information for this Fina l Existing Facilities Rule until this new ICR has been approved.

Essay 23 291

### Essay 24: Technical Development Document

Introduction EPA received a number of comments that suggested corrections to or disagreed with information in the Technical Development Document (TDD). Responses to those comments are below.

Basis for Developing Costs Several commenters stated that EPA was inconsis tent with how it descri bed the development of estimated costs in the rule, preamble, and TDD. EPA disagrees. The preamble summarizes the cost methodology, whereas the TDD provides th e detailed methodologies, algorithms, cost equations, and the basis for each component. Some commenters appear to confuse the technology basis for the impingement mortality pe rformance standard and the technology costed for compliance with that standard. The rule re quires facilities to meet an IM performance standard based on modified traveling screens with a fish-friendly fish return system. The rule does not require facilities to inst all a modified traveling screen; that technology was chosen as the basis for developing the numeric impingement mortality performance standards; see Section IX.B in the final preamble, which states th at “this does not precl ude the use of other technologies.” Each facility may choose the technol ogy that they will use or install to meet the impingement mortality requirement, as well as ch oosing one of seven compliance alternatives for demonstrating it has met the requirement. EPA’s costing approach reflects that reality. For purposes of estimating national level costs of co mpliance with the rule, EPA developed a cost model that assigns one or more technologies to a model facility and estimated the costs for that facility. These model facility costs were then summ ed such that all likely in-scope facilities were included in the national costs estimate. See TDD Chapter 8 for a detailed description of how EPA applied this methodology to develop facility-l evel costs for the final rule. Also see Essay 21. EPA agrees with commenters that each facilit y may require different modifications to its technology to meet the impingement mortality standard and, as noted above, the rule allows for various ways to demonstrate compliance. S ee Section IV of the preamble for additional discussion of the seven compliance alternatives for the IM standard.

In the final rule, EPA notes that none of th e BTA standards for IM at 40 CFR 125.94 require modified traveling screens. One of the complia nce alternatives at 40 CFR 125.94(c)(5) allows a facility to select optimized operation of modifi ed traveling screens as a way to meet the IM standard. The final rule at 40 CFR 125.92(s) defines modified traveling screens to mean a traveling screen that incorporates measures prot ective of fish and shellfish. The definition at 40 CFR 125.92 lists a number of protective features that can be found on a modified traveling screen. In explaining what EPA meant in the proposal when discussi ng modified traveling screens, EPA cited a Fletcher (1990) article to illu strate that several feat ures of Ristroph screens can be modified or optimized in ways that significantly reduces impingement mortality. This does not mean that modified Ristroph screens are the only type of screens that form the basis of the IM performance standard, nor does it mean modified Ristroph screens are required. For facilities choosing this complian ce alternative, the permit app lication at 40 CFR 122.21(r)(6) requires a complete description of the modified traveling scre ens and associated equipment including, for example, type of mesh, mesh sl ot size, pressure sprays and fish return

Essay 24 292mechanisms. Finally, the definition at 40 CFR 125.92(s) states “examples of modified traveling

screens include, but are not limited to: modified Rist roph screens with a fish handling and return system, dual flow screens with smooth mesh, and rotary screens with fish returns or vacuum returns.”

Several comments expressed concern that a modi fied Ristroph traveling screen was required by the rule. As explained above, this is not correct . And contrary to some comments, EPA’s cost methodology appropriately reflects that facilities may employ va rious approaches; EPA did not assign costs for all facilities to comply with the IM performance standard by installing modified traveling screens. The summary of technical survey data in th e TDD shows that 73 percent of manufacturers and 93 percent of all power gene rators (or 83 percent of the total in-scope universe of facilities) have trav eling screens prior to this rule. But the costs developed for the final rule do not presume all facilities will replace or upgrade their existing screens with modified Ristroph screens or similarly performi ng screens in order to comply with the rule. 50 EPA has made this clear in the preamble at Exhibit VIII-1 and the TDD, providing EPA’s projections of how facili ties will choose to comply with the IM requirements. EPA projects that 29 percent of intakes will use modified traveli ng screens to comply with the BTA requirements for IM. Other facilities will use in take velocity, closed-cycle coo ling, offshore velocity caps, or a system of technologies to meet the BTA requirements for IM.

Commenters note that the TDD describes th e methodology for assigning technology modules, including technologies that are not modified traveling screens, in estimating the costs of today’s rule (EPA notes that this is referred to by the agency as the cost basis ). As discussed above, the rule does not require a facility to install a specific technology; it si mply requires that the facility meet a certain level of performance. It is the f acility’s choice as to what technology they will use. Site-specific factors will play a significant role in a facility’s c hoice of technology; it is unlikely that every facility will actually install modified traveling screens to comply and this is reflected in the flow charts describing how a compliance technology is assigned to estimate the costs. For example, a facility with an existing offshore intake would be highly unlikely to completely abandon their existing intake just to build a new shoreline intake w ith modified traveling screens. They would be more likely to install a less costly technology such as a velocity cap or wedgewire screen to reduce the intake veloc ity. As evidenced by the seven IM compliance alternatives in the final rule, EPA acknowledges that there are other de monstrated technologies that achieve performance equal to or greater than modified traveling scre ens. As described in Chapters 6 and 7 of the TDD and the preamble, a number of other techno logies can also be highly effective and EPA assigned these technologies to a substant ial number of model facilities. Additionally, the inclusion of ot her technologies in EPA’s cost estimates actually increased the overall compliance costs, as these other technolog ies are typically more expensive than installing a modified traveling screen. For example, an expanded intake for wedge wire screens with a design velocity of 0.5 fps is more expensive than modified screens with a fish return. However, facilities may have other reasons for selecting a particular compliance alternative, and minimum cost may not be the only reason a facility choos e a particular compliance approach. As the

50 The commenters noting that text in the preamble at 76 FR 22214/1 that EPA estimated costs by assigning Ristroph screens to all facilities could be interpreted to mean faciliti es were required to install such screens. As described elsewhere in the preamble, the TDD, and in the respon se to comments, this was not the case. A variety of technologies were used to develop compliance costs.

Essay 24 293compliance alternatives based on these othe r technologies meet or exceed the IM BTA performance standards, EPA is providing the flexibility for a f acility to choose that technology and its cost estimates reflect this flexibilit y. For more information regarding EPA’s cost estimates for screens, please refer to Essay 21.

Similar to the above misunderstanding regarding traveling screens, some comments expected all facilities to reduce inta ke velocity to 0.5 fps. As explai ned at proposal at 76 FR 22202 and repeated in the final rule, EPA did not find that low intake velocity was widely available and achievable for all existing facilitie s. See preamble Section VI. Ther efore, the final rule does not establish low intake velocity as the national BTA nor does it establish performance standards based on low intake velocity. EPA notes, however , that the final rule includes 0.5 fps as a compliance alternative for the IM performance standard because the impingement mortality performance achieved with reduced intake velocity performs better than the technology basis for the performance standard in the final rule. EPA not es that because reduced intake velocity is not widely available and therefore not a viable BTA basis for the fi nal rule, EPA generally did not attempt to estimate costs for most facilities whic h employ traveling screens that might choose to reduce their intake velocity to comply with the rule. These fa cilities were ge nerally assigned costs for upgraded traveling screens. The exception to this was in costing facilities with known intake velocities that were very close to 0.5 fp s, EPA did assign the cost module for variable speed pumps which EPA estimated may be used by approximately 100 intakes to meet the 0.5 fps velocity compliance altern ative. See TDD Chapter 8.

Some commenters indica ted EPA did not properly account fo r costs of IM requirements at facilities that already have clos ed-cycle cooling. EPA disagrees. At proposal, EPA assigned costs for screen upgrades to facilities already employing closed-cycle cooling to be consistent with the overall approach for addressing impingement mort ality described in the proposed rule. However, in the final rule, this would re present an overestimate of costs because the final rule provides a compliance alternative for a properly operated cl osed-cycle system to meet the impingement mortality standards. EPA expects no further tech nologies will be required to achieve the BTA standard for IM if a properly operated closed-cycle cooling syst em is used. Therefore, for the final rule analysis, EPA appropria tely did not include costs relate d to traveling screens (or other IM technologies) for those faci lities with CCRS already in-place (reflecting 18 percent of intakes, see Exhibit VIII-1 in the preamble) to comply with the IM standard.

Lastly, one commenter discussed the usage of al ternative technologies an d how these could be used to demonstrate compliance with the IM perf ormance standard. EPA agrees that alternative technologies may be effective in meeting the IM performance standards, and has included a system of technologies compliance approach at 40 CFR 125.94(c)(6) for this purposes. EPA provided examples of credit for existing technologies and alternative tech nologies in the NODA, and has included them again in the final preamb le Section VIII. Also see Essay 16 and preamble Section VIII for discussion of how alternative tec hnologies may be used to meet the final rule.

Technology Performance One commenter states that the TDD does not sufficiently describe the performance of entrainment technologies. The commenter specifically states that there is a lack of performance data for flow reduction technol ogies other than cooling towers. EPA disagrees. The TDD

Essay 24 294describes multiple types of entrainment technologies, including flow reduction and fine mesh

screens. 51 The final TDD’s Chapter 6 provides an overview of the suite of available E technologies and their performance. EPA notes that the principle of flow reduction is the same for any flow reduction technology; a gallon of water not withdrawn equates to 100 percent of the organisms in that gallon as no longer being entrai ned. Cooling towers generally offer the greatest reduction in flow and therefore the greatest reduction in entrainment. 52 Variable speed pumps are not intended to match the flow reductions realized by a facility-wide cooling tower retrofit; they simply offer a measurable reduction in flow as pa rt (or all) of a facili ty’s response to reducing entrainment. The amount of flow reduction is en tirely dependent on the fa cility’s configuration and operational needs, thus the reduction will vary somewhat between facilities. As stated in the TDD, variable speed pumps (where feasible ) result in a maximum flow reduction of 10-15 percent, and more typically will result in a fl ow reduction of about 8 percent. The availability and effectiveness of seasonal flow reductions and s cenarios for water reuse are very site-specific, and at a minimum are typically not available fo r baseload power genera ting facilities and many manufacturers, as these facilities need to operate all year (see E ssay 15). These are flow reduction options that some facilities could undertake as all or part of a system of technologies compliance approach (as well as fulfill any regulatory or permit-related requirements). 53

Some commenters suggested inta ke location was not properly considered, particularly for entrainment. As explained in the final rule , intake location (in combination with other technologies) is an approach that, while not wi dely available and thus not BTA, may allow a facility to comply with today’s IM standar d. For IM, the final rule includes a compliance alternative for a facility to take credit for an advantageous inta ke location by demonstrating that the intake is in a location that is less suscep tible to impingement. EPA did not use a relocated intake as the technology basis for BTA for impinge ment mortality because it is not an available technology at most existing facilities , nor is a relocated intake alone demonstrated to meet the IM performance standard in all cases. For example, small rivers may have limited locations suitable

51 Note that the commenter uses the term “entrainment mortality” when describing technology performance. Typically, entrainment mortality refers to the survival of entrainable organisms that pass through the entire cooling system of the facility, where they are subjected to therma l, mechanical, and other stresses. (See footnote 38 in Chapter 6 of the proposed TDD for more information.) EPA assumed that entrained organisms experienced 100 percent mortality. Data provided in comments showed that in some circumstances, some eggs survive entrainment. However, in general the data does not support commen ts purporting significant entrainment survival, and EPA continues to assume for purposes of national rulemaking th at entrainment results in 100 percent mortality. For this reason, EPA’s focus in the final rule is entrainment, not entrainment mortality.
52 EPA also discusses “combination” cooling systems in Chapter 6 of the final TDD. In these systems, only part of a facility uses a closed-cycle cooling system. For example, if one unit uses a cooling tower, it would achieve a reduction in flow of greater than 94 percent, but its other unit could be operating as a once-through system, which offers no reduction in flow. However, ta ken as a whole, the facility has realized a nearly 50 percent reduction in its flow relative to a full-flow baseline.
53 In particular, seasonal reductions are highly dependent on season and the organisms present. Conceptually, if a facility is located in a waterbody where entrainable orga nisms are only present for a short time, it could schedule outages or periods of reduced flow to coincide with the entrainment season and operate the remainder of the year as a once-through facility with minimal risk with regard to entrainment. On the other hand, a facility located in an estuary with virtually year-rou nd spawning of multiple species is unlikely to be able to utilize seasonal reductions. Manufacturers are unlikely to be able to shut down du ring peak entrainment periods every year. EPA further examined a case study of seasonal flow reductions for the Saugus River, and found that biological monitoring would be needed to identify the upcoming peak entrainment season, which is likely to shift each year based on weather, temperature, and other climatic factors.

Essay 24 295for a relocated intake, and even larger waterbod ies may have navigational issues that constrain the location of an intake structure. Furthermore, a relocated intake alone would be unlikely to achieve a level of performan ce comparable to the BTA performance standards for IM. For example, the offshore data for velocity caps in the record shows the density of organisms does not drop sufficiently to equate to the BTA performance standards for IM in all cases. EPA found the far offshore location (defined as greater than 800 feet off shor e) must be combined with a velocity cap in order to perfor m better than the BTA performance standards for IM. Because of the far offshore distance, this alte rnative is, therefore, more likely to be available to facility intakes located on an ocean, an estuary, or the Great Lakes. For those not located on an ocean, estuary or Great Lake, EPA expects facilities will choose to comply with the IM performance standard via one of the other compliance altern atives. EPA found that re location of an existing intake structure is costly (inc luding civil work, permits, capital co sts, and installation costs) and unlikely to be the most cost-effective choice for an existing facility. See TDD Chapter 6 for more information about the performance of intake lo cation. Nevertheless, the final rule allows a facility to take credit for reductions in impingeme nt resulting from the intake location. Nor does the final rule prejudge whether a facility may achieve some or a ll of its IM obligations through intake location. For example, EP A is aware that some intakes are located on th e bend of the river, adjacent to a cold water source, or otherwise de liberately situated where fish are less likely to reside. The rule at 40 CF R 125.94(c)(6) provides a complian ce alternative that allows a facility to demonstrate the perfor mance of intake location for IM.

The final rule does not mandate any technology to meet entrainment requirements. The rule establishes a framework and requi res studies to inform the site-specific BTA determination to reduce entrainment at existing facilities. Since the rule requires BTA for entrainment to be determined on a site-specific basis, the rule alre ady provides the flexibility to consider intake location as well as intake relocation.

One commenter stated that several pieces of information on the California coast and the performance of velocity caps were incorrect. EPA appreciates these comments on the TDD and has addressed these items as described below:

 The discussion regarding kelp forests on pa ge 6-46 was not intended to imply that facilities located near a kelp forest are more or less likely to cause an adverse environmental impact. As the introduction to th e bullet in question stat es, the existence of kelp forests is a unique feature of the California coast and may be important in determining the effectiveness of a velo city cap. EPA appreciates the additional information on kelp forests and has made re visions to the final TDD as appropriate.

 EPA agrees that the statement on page 22202 of the proposed rule preamble about intake velocity being slightly lower due to a pressu re differential when using a velocity cap is not entirely accurate. EPA agrees this is ge nerally not the case, and has corrected the TDD accordingly.

 EPA appreciates the additional informati on on the sampling conducted at Huntington Beach, El Segundo, and Scattergood and has incl uded these data in the revised TDD as appropriate.

Essay 24 296EPA notes that this information is not related to the technology basis for the IM performance standard in the final rule nor to the site-spe cific BTA entrainment determination at the vast majority of intakes/facilities in the U.S. This information is specific to certain facilities located in California. To the extent that this information is relevant to the compliance alternative selected by facilities in this area or to their site-specific BTA entrainment requirements, this information can be submitted and cons idered by the Director.

One commenter questions EPA’s exclusion of technology performance data derived in a laboratory setting, specifically wi th regard to cylindrical wedgew ire screens. EPA notes that the commenter only mentions studies that relate to cylindrical wedgewire screens. In the specific case of wedgewire screens, EPA agrees laboratory data may be useful because fish diversion is difficult to measure, and impingement of fish on a wedgewire screen is difficult to sample in native settings. However, because this technol ogy was not selected as the technology basis for the impingement mortality performance standards, the source of data for wedgewire screen studies (whether from a field st udy or a laboratory) were not used in developing the performance standards, and the remainder of the comment is ir relevant. For further discussion of criteria for data acceptance, see TDD Chapter 11 and Essay 16A.

EPA has previously noted that wedgewire sc reens are typically designed with a maximum through-screen velocity of 0.5 fps. Wedgewire screens work because of a combination of factors including low velocity, sweeping velocity, flow dynamics, etc. Regardless, the final rule provides compliance alternatives at 40 CFR 125.94(c) for a maximu m through-screen velocity of 0.5 fps. EPA recognizes the performance of low intake velocity by providing the compliance alternative for either design or actual intake velocity. This compliance alternative is not limited to wedgewire screens. As indicated above, th e final rule allows any intake (including a wedgewire screen) with a maximum through-sc reen velocity of 0.5 fps as meeting the impingement mortality standard.

Site

‐ Specific Data for Capacity Utilization Rate One commenter stated that the capacity utilization rate for one of its facilities was an error and reported as too low. In general, EPA notes that th e utilization rates used in the analysis regarding the feasibility of a spawning season-oriented re gulatory option for entr ainment (flow reduction by virtue of seasonal operation, as discussed a bove) used information about capacity utilization provided in the industry questionnaires a nd representing the years 1998-2000. While the commenter provided more recent operational data , in the context of analyzing the technical feasibility of the seasonal operati on as a regulatory option, the data used by EPA is sufficient to demonstrate that this option is not feasible on a national scale. EPA made this conclusion because the snapshot of the industry over this ti me period illustrated th at many facilities would not be able to provide power as needed locally an d still be consistent with strict controls of reduced operations during the sp awning season. More specifica lly, EPA found that in most locations, reduced operations duri ng spawning seasons and peak en trainment seasons frequently coincided with peak power demands in the su mmer. See TDD Chapters 5 and 6. As discussed above, most manufacturers operate all year, and seasonal reductions in operations every year would not be viable at such sites. Also see Essay 35 and the TDD, discussing how most manufacturers do not have annual maintenan ce outages on the shoulder months. Therefore reduced operations would result in lost revenues. Accordingly, EP A did not revise the analysis

Essay 24 297with the most current facility-specific CUR data. On the other hand, EPA recognizes that utilization changes on an annual basis and has used the mo st recent availa ble utilization rates for its economic analyses. See the EA for more information.

EPA notes that the final rule provides authority to consider alternative requirements for certain facilities with low capacity utilization rati ng (CUR) at 40 CFR 125.94(c)(12). EPA found that low CUR facilities are generally peaking plants that operate at full capacity for a short duration during a few months or less. EP A further found that some sites continue to withdraw water through their cooling water intake structure even when no power is being generated. If that period of cooling water intake operation corresponds with times when spawning is occurring, those facilities could have significant impacts from impingement and entrainment. Therefore, EPA did not exempt all low CUR facilities from re quirements, or develop a subcategory for such units. However, as discussed in the preamble, th e Director may consider less stringent controls for intakes dedicated to low CUR power generating units. See 40 CFR 125.94(c)(12) and Essay 19 for details. With respect to entrainment, ener gy reliability is one factor the Director may consider when establishing entrainment cont rols (see 40 CFR 125.98(f)(3 )). Also see Essay 19.

Analysis of Uncertainty One commenter states that EPA inadequately addressed uncertainty in its development of estimated compliance costs. EPA disagrees. As the commenter notes, the TDD describes the multiple ways in which EPA’s estimated costs are conservative. The TDD for the final rule expands on this uncertainty analysis. Additionally, as described in Chapter 8 of the final TDD, EPA used a model facility approach for estima ting the national compliance costs. Given that EPA does not have data for every potentially re gulated facility, it is not possible for EPA to develop site-specific costs, probability assessments, and other analyses as suggested by the commenter. However, EPA’s cost analysis does ta ke into account a wide va riety of site-specific data in determining the most appropriate compliance technology, the size of said technology, and other site-specific factor s that will affect the facility’s re sponse to comply and, ultimately, its cost to comply. As such, EPA’s cost estimates have a significant degree of site-specificity to the model facilities; no two model facilities re ceive exactly the same technology and cost. Additionally, the commenter refere nced uncertainty analyses c onducted in the development of benefits. See the EBA for more discussion of uncerta inty analysis specific to benefits. Also see Essay 22.

Essay 24 298

### Essay 29: Cumulative Impact of Multiple EPA Regulations on the Electric
Power Sector

Overview of Comments Several commenters expressed concern that EPA did not consider the cumulative burden of all recently-pro mulgated and currently pending regu lations on the electric power industry in developing the section 316(b) Existing Facilities Rule and assessing its impact. Commenters’ concerns include the following:

 Compliance with multiple regulations during th e same timeframe would be too costly and will result in higher electricity rates, reliabi lity issues, and job losses due to premature retirement of generating units.

 Ohio Public Utilities Commission (PUC) urge d EPA to assess the impact of these multiple regulations on individual States.

 The relatively short period to comply with multiple regulations may not give facilities enough time to install all compliance technolog ies required under these regulations, in which case facilities will be prohibited from operating until compliance activities can be completed (Western Business Roundtable). The likelihood of adverse reliability effects is high in such instances. Western Business R oundtable cited a recent policy resolution by the National Association of Regulatory Utility Commissioners (NARUC) that it may take five years and more for facilities to comple te all retrofit projects required under multiple regulations.

 To ensure that compliance w ith the section 316(b) Existing Facilities Rule along with other recently proposed and pending regulations does not result in adverse reliability effects, EPA must consult with the governmental and non-governmental agencies responsible for grid re liability and electric resource adequ acy and do so in a way that this consultation is known to the public (National Mining Association).

 Taken together, multiple regulations affecting coal generating units will adversely affect not only the coal industry, but the entire U.S. economy. Thes e rules will directly affect employment in the coal industr y and indirectly affect employ ment in the overall economy as a result of higher energy pri ces and consequently, will im pair U.S. competitiveness, GDP, and economic activity generally (National Mining Association).

 Anthracite Region Independent Power Produc ers Association (ARIPPA) urged EPA to consider the impact of the section 316(b) Existing Facil ities Rule on ARIPPA electric power facilities that use coal refuse for elec tricity generation to make sure the rule does not force these facilities to retire pr ematurely. ARIPPA point s out that, from an environmental perspective, the reclamation of co al refuse piles eliminates one of the most significant sources of water pollu tion in the historical coal mining regions of this country. Further, by utilizing coal refu se as a fuel source, ARIPPA facilities remove coal refuse piles and allow communities to reclaim la nd that would otherwise remain idle and unproductive for decades.

Essay 29 299 Electric power facilities may face difficulty meeting the compliance requirements of multiple regulations during a short timeframe due to shortages of available capital, materials, and labor.

 Some commenters urged EPA to account for potential losses associated with “stranding” air pollution control devices previously installed to comp ly with air regulations in instances when facilities shut down or repower before this installed equipment is fully depreciated.

 The need to comply with multiple regulations will affect companies’ decisions regarding whether to build new generating units.

 Multiple regulations with lengthy generati ng unit downtime for installing compliance technical will impact grid stability and transmission system reliability.

Impact of the 316(b) Final Rule in the Context of Multiple Environmental Regulations Affecting the Electric Power Industry EPA has taken account of the potential cumulative impact that multiple environmental regulations may have on the el ectric power industry. The EPA’s economic impact analysis of both the Proposed and Final Sect ion 316(b) Existing Facilities Rule s (proposed and final rules) on the electric power industry spec ifically took account of recen tly promulgated air regulations. Based on their breadth of effect and potential cost, EPA views thes e air regulations as the most important other final regulations affecting the electr ic power industry, and therefore, EPA concluded these should be assessed in its evalua tion of the cost and impact of the final 316(b) existing facilities rule. Other regulations (e.g., Coal Combustion Residuals and other Clean Air Act rules) are under consideration that may aff ect this industry, but as any requirements (and associated costs) are not yet determined, it is appropriate and reasonable to take into account only those recent requirements that are known and final.

The results of this analysis are discussed in Ch apter 6 of the Economic and Benefits Analysis for the Proposed Section 316(b) Ex isting Facilities Ru le (EBA) report and Chapter 6 of the Economic Analysis for the Final Section 316( b) Existing Facilities Rule (EA) report, respectively. For this analysis, EPA used the Integrated Planning Model (IPM®), a comprehensive electricity market optimization model that assesses such impacts within the context of regional and national el ectricity markets. EPA has used IPM to analyze the impacts of various regulatory actions affec ting the electric power sector ove r the last decade, including the Phase II and Phase III 316(b) re gulations, Final Mercury and Air Toxics Standards (MATS), and Cross-State Air Pollution Rule (CSAPR). The IPM platform EPA used in the market model analysis for the final rule incorporates costs a nd market-level effects of final MATS and final CSAPR and then applies the 316(b) requirements on top of that. As described in Chapter 6 of the EA report, based on this analysis, EPA found that the final 316(b) rule will lead to a very modest increase in capacity retirements – less than 0.1 pe rcent of total baseline capacity at the national level and the highest percent, 0.8 percent, of ba seline retired capacity of any North American Electric Reliability Corpor ation (NERC) region, is projected to occur in TRE. EPA assesses that these very small retirements are inconsequential relative to total national and regi onal generating capacity. As a result, the final rule will not significantly affect electric supply reliability – either nationally or by NERC region.

Essay 29 300EPA notes that any comments received above other promulgated rules or rules under consideration such as comments about statements in the preamble to the MACT rule are outside the scope of this rulemaking.

Impact of 316(b) Final Rule on Electricity Rates, Total Economy, and Employment The EPA found the final rule will result in only sm all effects on electricity rates nationally, and at the level of individual NE RC regions. For the final rule, under an assumption that all compliance costs would be passed through to consum ers in electricity rate increases, the EPA estimated that rates would increase by a pproximately 0.009 cents per kWh across the United States. On a percentage basis, the estimated rate increases are comparably small, both nationally and by region: the estimated percentage increas e in electricity rate s averages 0.09 percent nationally, with the largest incr ease by region being only 0.15 per cent. The EPA found that these increases to be very low, partic ularly when viewed in light of the environmental benefits the EPA expects will be achieved by this regulation. See Essay 39.

In terms of broader economic eff ects, the EPA expects minimal impact from the final rule. Given the low cost of the rule in re lation to the total economy (estim ated total annual cost of $275 to $297 million, 54 depending on discount rate, which is less than 0.01 percent of GDP in 2012), EPA concludes that the final rule will not a dversely affect U.S. competitiveness, GDP, and economic activity, generally. Also see response to Essay 55.

In the analysis for the final rule, the EPA did not specifically assess the employment effects from early retirement of genera ting units; however, because (1 ) only 23 units (out of 14,920 generating units analyzed in IPM), accounting for 0.1 percent of total market capacity, are projected to retire early due to the final rule, (2) these retired units do not contribute significantly to electricity supply in the baseline case, with 15 and seven units having a capacity utilization rate of zero and less than 11 pe rcent, respectively, and only one unit with substantial capacity utilization, approximately 66 percent, and (3) some jobs will be gained as the result of new generating units constructed to replace the retire d units, EPA does not expect significant, if any, job losses from capacity effects associated with the final rule. See Essay 36 for more discussion of employment effects of the final rule. For more discussion on the impact of the final rule on the U.S. economy, see Essay 37.

Need for Consultation and Coordination Concerning commenters’ arguments that the EPA should consult a nd coordinate with agencies and organizations that are respon sible for grid reliability and el ectric resource adequacy, the EPA notes that it developed the final rule with s ubstantial interagency re view, and opportunity for consultation and input from the Department of Energy, the Federal Energy Regulatory Commission, and other federal agencies.

54 All costs and economic impacts reported in this document reflect the assumption that all facilities with cooling water system impoundments will qualify as baseline CCRS, an d will not need to install additional technology to meet the impingement mortality performance standard under the final rule (for more information on this assumption, see Chapter 1 of the EA).

Essay 29 301Impact on Coal Usage and the Coal Industry In regard to NMA’s concerns about the rule’s potential impact on coal usage and the coal industry, as discussed in Chapter 12 of the EA report relative to th e Executive Order 13211: Actions Concerning Regulations Th at Significantly Affect Energy S upply, Distribution, or Use, based on the IPM analysis, the EPA found that th e final rule will not have a significant adverse effect on coal usage by the electric power indus try. From the IPM analysis described above, the final rule causes only a 0.1 percen t reduction in total coal usage. Again, while EPA did not assess the change in jobs in the coal industry as the result of the final rule, gi ven the small change in coal usage by the electric power sector, the EPA does not expect significant job losses in the coal industry.

Impact on Coal

‐ Refuse Based Generation In regard to ARIPPA’s concern about the rule’s po tential impact on facilities using coal refuse as fuel source to generate electrici ty, EPA concluded that the fina l rule would not significantly affect such facilities. As discussed in Chapte r 12 of the EA report, the EPA’s IPM analysis showed that the final rule will not force generatin g units using coal refuse, captured in the “waste coal” category, to re tire prematurely.

Adverse Impact on Decisions to Build New Units As discussed in Chapters 4 and 6 of the EA, EPA found that the new unit provision of the final rule will not deter existing f acilities from constructing new , standalone units at existing facilities that would be subject to the new unit provi sion. EPA conducted this barrier-to-development analysis in two parts. EPA compared the complia nce costs for new units to the overall cost of building and operating generating units, on a per MW basis, to assess whether the required addition of a closed-cycle recirculating system ( CCRS) as part of a new un it, would substantially increase the cost for the new standalone unit. Additionally, EPA assessed these costs as part of its electricity market analyses us ing IPM; this analysis tests th e impact of the new unit provision on electricity markets accounting for the expected number and timing of new unit installations, and provides additional insight on whether the costs of complyi ng with the new unit provision of the final rule would affect future capacity additions. Neither analysis showed that the final rule would substantially increase cost s or affect future capacity.

Adverse Impact Due to Compressed and Overlapping Compliance Periods from Multiple Regulations The final rule provides substantial flexibility to Permit Directors in establishing the specific schedule and compliance requirements for individua l permitees as they comply with the rule. Specifically, the final rule gives Permit Directors the authority to establish specific compliance requirements and compliance schedules, and does not include a requirement for compliance with the IM performance standards within a specific un iversal timeframe. EPA expects, however, that the existing unit provision of the final rule will ge nerally result in compliance within a relatively lengthy period of eight years afte r promulgation. EPA did not speci fy universal compliance dates for IM standards because the specific method of compliance with these standards is tied to the determination of BTA entrainment control requirements. Under the existing unit provision of the final rule, facilities must meet IM requirements as soon as practicable after issuance of a final permit establishing the BTA entrainment contro l requirements, as determined by the Permit

Essay 29 302Director. The final rule aligns compliance deadlines for IM and entrainment control requirements. If technologies required for compli ance with IM and entrainment control standards overlap, which could result in facilities needing more time to comply with IM standards, the Permit Director will schedule compliance with the IM requirements to match the schedule for the entrainment control requirements.

All facilities will be required to follow their schedule as determined by the Permit Director. The schedule of requirements established by the permitt ing authorities will ensure compliance with those requirements as soon as practicable. In developing technology-inst allation schedules for Electric Generators, EPA expects permitting auth orities to take into account compliance requirements of other regulations and take measures to ensure adequate energy reliability and necessary grid reserve capacity during any expected facility outage associated with installation of compliance technology. In addition, as discussed in the EA, the resource requirements of the final rule – in terms of estimated capital outlay, near-term capacity effects, and ongoing operating costs and effects – are re latively small in themselves. As a result, facilities should not face unreasonable challenges in obtaining financial capital, materials, or labor for 316(b) rule compliance – even as they may also be meeting requirements from other environmental regulations at approxim ately the same time.

Financial Losses from Capacity Retirements The EPA understands the argumen t and concern raised by the commenters regarding the potential financial losses some companies may f ace if they retire generating units before the equipment they installed to comp ly with other regulations is fully depreciated . However, all regulations involve costs and pot ential impacts of the sort desc ribed. Moreover, as described above, the EPA foresees only a smal l impact in terms of early re tirements of capacity as a result of the 316(b) final rule.

Potential Impact on Grid Stability and Transmission System Reliability Some commenters argued that the multiple environmental regulations, including the 316(b) existing facilities rule, will adversely imp act grid stability and transmission system reliability. Commenters made this argument specifically in the context of the expected occurrence of lengthy downtime for generatin g capacity to install compliance technology, and difficulty in bringing sufficient electricity from other operating units to meet local electricity needs, when nearby capacity is out of service for t echnology installation. In terms of the impact of the 316(b) rule itsel f, in this context, the EPA first notes that downtime for installation of impingement m ortality technology for the va st majority of units beyond ordinary scheduled maintenance outages, is ze ro. Second, the EPA co nducted an analysis of reliability for this rulemaking and found the im pacts would be incrementally very small. One commenter notes that the EPA cited informatio n collected during site visits that several urban areas were identified where the existing tr ansmission system would not be able to transfer sufficient electricity during periods of extended downtime or that, in some areas, even though excess capacity could be generate d by other plants within the area, it may not be enough to replace the capac ity lost during the extended dow ntime. The EPA notes that the commenter is referencing site visits to Los Angeles, CA and th at the information was specific to the installation of clos ed-cycle cooling. After review ing its site visit information, the EPA did not find that this information wa s more broadly applicable geographically. As

Essay 29 303discussed in the preamble, the EPA did not fi nd reliability to be dispositive in its consideration of closed-cycle cooling as the en trainment BTA. Third, the final rule provides flexibility in the compliance schedule. For those facilities that elect to comply with the IM performance requirements via a compliance alte rnative that may necess itate more lengthy downtime beyond the normally schedule main tenance outages, the Director has the flexibility to consider local reliability conc erns in scheduling the compliance timeframes. EPA cannot predict the outcome of the site-specific entrainm ent determinations, but notes that Directors similarly have flexibility to cons ider local reliability in the determination of BTA for entrainment on a site-specific basis as well as the implementation schedule. In the EPA’s judgment, the short or nonexistent ne t downtime period for most units, combined with Permit Directors’ flexibility to set and ad just compliance schedules, will mitigate any potential concerns regarding grid stability and transmission system reliability.

Essay 29 304

### Essay 31: Cost and Economic Impact Analysis: Methods and Approaches

Overview of Comments Some commenters raised concerns with EPA’s approaches for analyzing the cost and economic impact of the 316(b) existing f acilities rule. Particular c oncerns include the method for annualizing costs and benefits, and various as pects of the economic impact analysis. The comments include:

 American Chemistry Council (ACC) claimed that, according to the Technical Development Document for the Proposed Sect ion 316(b) Existing Facilities Rule (TDD), EPA annualized social costs over 10 or 30 year s, depending on the cost component, while in the Economic and Benefits Analysis for the Proposed Section 316(b) Existing Facilities Rule (EBA) report it says that EPA used the 50-year annualization period. ACC suggested EPA explain this discrepancy.

 Some commenters expressed c oncern over the 50-year period EPA used to annualize social costs for the analysis of the Propos ed Section 316(b) Existing Facilities Rule (proposed rule). These commenters argued that this methodology underestimates true upfront investment requirement and suggested EPA use the 10-year annualization period in accordance with the approach suggeste d by the Congressional Budget Office (CBO). Using the 10-year annualization period will, in turn, lead to a highe r cost-to- benefits ratio.

 Some commenters pointed out that EPA used a different annualization period in the cost and economic impact analyses conducted in support of the remanded Phase II Rule and the Phase III Rule; specifically, commenters claimed, EPA annualized costs over 10 or 30 years, depending on the cost category. So me commenters pointed out that for the remanded Phase II Rule specifically, EPA annua lized social costs using the 7-percent discount rate over 10 years. These commenters stated th at EPA provided insufficient explanation for this methodology change a nd urged EPA to provide a better one.

 Midwest Generation, Edison Mission Energy, LLC (EME) expressed concern over the 30-year period EPA used to model benefits, co ntending that if closed-cycle cooling were required many facilities would shut down lead ing to benefits act ually occurring over a shorter time frame.

Some commenters expressed conc ern with the methodology EPA used to assess the impacts of the proposed rule on regulated faci lities. These comments include:

 Kansas City Board of Public Utilities (K CBPU) argued that in its cost-to-revenue analysis at the level of pare nt entity, EPA incorrectly us e the sum of facility-level revenue owned by a given entity in stead of this entity’s revenue.

 KCBPU also stated that EPA has underestimat ed the cost of compliance of the section 316(b) regulation in general, but also the comp liance cost per unit in sales to customers.

Essay 31 305 American Municipal Power, Inc. (AMP) expr essed concern that EPA underestimated the full cost of the section 316(b) regulation beca use the Agency did not properly account for retirement of generating units. Specificall y, AMP claimed, while EPA provided estimates of the number of regulated manufacturing facilities estimated to retire as the result of the CWIS rule (73 separate manuf acturing facilities repr esenting 13 percent of the total), the Agency failed to account for any retirements of the regulated elec tric power facilities.

 The United States Steel Cor poration (USS) argued that co st-to-revenue analyses EPA used to assess the impact of the section 316(b) regulation on enti ties owning regulated manufacturing facilities may not be an appropriate measure of this impact and the results generated using the cost-to-revenue test ma y be misleading. These commenters pointed out that revenue does not capture the large overhead costs that some industries may require or the cyclical natu re of operations in those i ndustries. These commenters suggested EPA use other financial metrics that would take these factors into account such as earnings before interest, tax, de preciation, and amortization (EBITDA).

 Some commenters advised EPA conduct cost and economic analysis taking accounting the specifics of each individual manufactur ing industry, implying that the current analytic approach does not do that.

 Riverkeeper stated that the cost-pass-thr ough assumptions EPA made in the cost and economic impact analysis conducted for elect ric generators and manufacturing facilities are overly conservative. Specifically, for el ectric generators, EPA made the assumption of no cost pass through in the cost-to-revenue an alysis conducted at the facility and entity level and the assumption of 100 percent cost pass through in the electricity rate and household impact analyses, are overly conser vative. For manufacturing facilities, EPA assumed no cost pass through when modeling after-tax cash flow. Riverkeeper argued that in reality, some costs will be bo rne by consumers and some by complying facilities/entities.

Annualization of Costs and Benefits EPA notes that, to a large degree, the comments concerning EPA’s approaches for annualization of costs and benefits reflect misunde rstanding of the differences between private cost , which EPA calculates from the perspective of the individual regulated facility, and social costs and benefits , which are calculated from the perspective of society, and reflec t the total group of regulated facilities as a whole. In developing its analyses for the final rule, EPA followed wellestablished practice in annualizing different costs. The fo llowing responses to these comments clarify the reasons for the different cost analysis approaches and the resu lting differences in the calculations.

Claim of Inconsistencies in Annualization Periods ACC claims there are differences in the a nnualization periods in the cost methodologies described in the TDD and in the EBA report. ACC is correct in noting differences in the annualization periods in the various analyses; however, the different periods reflect differences between private and social cost and the methodologies that EPA has used to calculate these costs. EPA is confident that its approach reflects wide ly accepted practices with respect to estimating these different costs.

Essay 31 306For the economic analysis of the section 316(b) E xisting Facilities Rule, EPA evaluated two different categories of the compliance costs. EPA evaluated private cost to measure the cost and impact to regulated facilities and permitting authorities, and evaluated social cost to measure the cost of the section 316(b) regul ation to society. EPA’s choice of annualization periods reflects widely accepted methods of accounting for these cost s and is consistent with direction from the Office of Management and Budget.

As discussed in Chapter 3 of the EBA and th e Economic Analysis for Final Section 316(b) Existing Facilities Rule (EA) reports, EPA cal culated private costs at the level of the individual regulated facility and annualized the costof compliance technology expenditures and other nonannually recurring outlays over various time periods based on (1) the estimated useful life of individual capital cost com ponents or (2) the frequency of recurrence for other non-annual outlays (e.g., permit renewal). EPA discounted an d annualized cost valu es using a 7-percent discount rate, which is an estimate of the opportunity cost of capital to so ciety. In this analysis, the annualized period for a gi ven technology outlay may be for as long as 30 years.

The analysis of social costs differs in concept. Here, EPA looked over the full set of regulated facilities and explicitly accounted for the year in which each facility is expected to reach compliance, the duration of cost s and benefits for each facility , recurrence of cost outlays. Because not all faci lities are expected to reach compliance in the same year, the length of the analysis period and, correspondingly, the annualiza tion period, is longer than the annualization period that would be used for an individual f acility. As explained in Chapter 11 of the EBA report, EPA used a 50-year annualiz ation period for the social cost analysis. This period includes (1) a 45-year compliance cost period during whic h costs are assigned on a year-explicit basis, and (2) an additional five-yea r benefit phase-down period. The 45-year compliance cost period starts at the promulgation year and reflects (1) the latest year in which any facility achieves compliance, and (2) the useful life of the longe st-lived technology under any analyzed regulatory option. The benefit phase-down period reflects th e expectation that benefits from reduced impingement and entrainment will continue for five years after compliance technology is assumed to have ceased functioning.

In this analysis, EPA developed a year-specific stream of costs – which includes accounting for technology installation outlays, ot her non-annually recurring costs, and annually recurring costs in the year that they occur – and a year-specific stream of benefits. The year-specific stream of costs accounts for the longest life of any tec hnology considered for the final rule – e.g., 30 years – and provides for reinstallation of a co mpliance technology if it reaches the end of its useful life before the end of the 46-year compliance cost analysis period. In this way, the compliance technology life – whether, for exam ple, 20 years, 25 years, or 30 years – is accounted for within the overall analysis and annu alization period of 50 years. Thus, there is no inconsistency between the techno logy-specific annual periods used in the private cost analysis and the longer annualization period used in the social cost analysis

. EPA then discounted the resulting streams of co sts and benefits to the promulgation year, and annualized them over the 50-year analysis peri od. EPA discounted and annualized these values using both the 3-percent and the 7-percent discount rates. Thes e discount rate values reflect guidance from the Office of Management a nd Budget (OMB) regulatory analysis guidance document, Circular A-4 (OMB, 2003; updated 2009) . EPA used the same approach to estimate

Essay 31 307total social costs for the final ru le. However, for the analysis done in support of the final rule, the assumptions described above resulted in a 51-year annualization period due to a slightly longer (by one year) initial te chnology-installation window which resu lted in a 46-year compliance cost period. EPA explained more explicitly the differences in the analytic approaches used to estimate private and social costs in EA report.

The 50

‐ Year Annualization Period Used for the Proposed Rule Understates Costs; Recommendation to Use 10

‐ Year Annualization Period Based on Congressional Budget Office (CBO) As described above, the 50-year analysis pe riod used for proposed rule, and resulting annualization period, embeds info rmation on the performance lif e of the various compliance technologies, including recurren ce of technology outlays based on th eir useful life. As a result, EPA disagrees that the 50-year annualization period understates t echnology costs. For the final rule, EPA used a slightly longer analysis peri od of 51 years due to the assumption of a longer initial technology-installation period.

In addition, EPA also does not agree that the CBO’s recommended 10-year analysis period is appropriate for the analysis. The CBO recomme ndation applies to analysis of public sector investments and pertains sp ecifically to the life of financing for those investments – e.g., use of 10-year bonds to finance public investments, even though the resulting asset may have a useful life that is longer than 10 year s. In contrast, EPA’s analysis for the 316(b) rule focuses on the
cost of compliance outlays and the length of time that the outlay is expected to provide the benefits to society through reduced impingement and/or entrainment of aq uatic organisms. Using a shorter period for annualizing compliance costs than the period over which the compliance outlay will provide benefits, would overstate the cost of the compliance technology outlay – on an annualized cost basis – in achievi ng benefits on behalf of society.

Use of Annualization Periods for the Proposed 316(b) Existing Facilities Rule Analysis that Differ from the Periods Used in the Previous 316(b) Rulemaking Analyses EPA used the same methodology to calculate priv ate costs of the remanded Phase II Rule, Phase III Rule, and the Proposed and Final Section 316(b) Existing Facilities Rule s. Specifically, to estimate total private costs, EPA annualized each co st component over its us eful life and used the 7-percent discount rate for discounting and annua lization. As described above, the annualization periods in the private cost analysis vary by us eful life of the compliance outlay. The analysis concept and procedure are the same acro ss the various 316(b) rulemaking analyses.

For the analysis of social costs, EPA used a di fferent annualization period for the proposed and final 316(b) existing facilities rule analyses from that used in the earlier Phase II and Phase III analyses. In the Phase II rulemaking analyses , EPA used the same annualization method and period in the social cost analysis as that used in the private cost analysis. This approach did not reflect the range of years in wh ich facilities would achieve compliance, or the expected period over which benefits would decline after the co mpliance technology is assumed to have ceased functioning. As such, EPA concluded that this appr oach did not present as accurate or complete a

Essay 31 308profile of social costs and benefits across all regulated fa cilities as a group as the approach used in the proposed and final existing facilities rule an alyses. On this basis, EPA has determined that the approach used for today’s existing facilities ru le analyses is appropriate because it represents further refinement, and hence an improvement, to the approach used for the Phase II rule analysis.

Concerning the annualization approach used in the Phase III rulemaking analyses, EPA notes that the concept underlying the duration of the annualization period in the Phase III analyses is the same as that used in the proposed and fina l existing facilities rule analyses. However, the resulting annualization periods for social cost and benefits di ffer among the three analyses due to differences in the period during which facili ties were expected to install compliance technologies: the technology-instal lation period for the final existi ng facilities rule is slightly longer than that used for the proposed existing facil ities rule, which is long er than that used for the Phase III rule. As such, use of a different annualization period is a ppropriate and necessary because of the longer tec hnology installation period.

Use of 30

‐ Year Period for Modeling Benefits for the Individual Facility EPA disagrees with EME’s claim that EPA shoul d have modeled benefits associated with closed-cycle cooling installation over a shorte r time period because of potential facility retirements resulting from the existing facilities rule . First, EPA’s analysis indicates there will be few retirements of generating capacity among electric power generators and no facility closures among manufacturing facilities. As a resu lt, adjusting the an nualization period for all regulated facilities based on unsupported speculation that some f acilities might retire because of the rule, would understate the profile of benefits achieved for the much larger number of facilities that do not close because of the rule. Second, EPA notes th at if it were to account for facility retirements in the benefits analysis, the appropriate treatme nt would be to recogni ze that the reduction in impingement and entrainment would in effect be permanent or even longer than assumed in the current analysis.

Cost and Economic Impact Analysis Assumptions and Analytic Approach

Use of Sum of Facility

‐ Level Revenue for Entity

‐ Level Cost

‐ to

‐ Revenue Analysis EPA disagrees with KCBPU that the Agency incorre ctly used the sum of revenue from facilities owned by a given entity in its entity-level cost -to-revenue analysis. EPA did not. In fact, as discussed in Chapter 4 of the EA re port, for that analysis, EPA used parent entity revenue values in that analysis.

Underestimation of Cost Per Unit in Sales to Customers EPA disagrees with KCBPU’s concern that it ha s underestimated total co st of compliance in general and compliance cost per unit in sales to customers in the Proposed Section 316(b) Existing Facilities Rule. EPA is conf ident that the analysis it conduc ted for the final rule reflects a careful consideration of the av ailable information and its judgme nt reflects the Agency’s years of experience in evaluating economic data in developing its rules. In addition, because KCBPU did not present any detailed information to support its claim that EPA underestimated costs, EPA is unable to evaluate KCBP U’s particular situation.

Essay 31 309Underestimation of the Rule’s Costs because of Failure to Account for Closing Facilities EPA disagrees with AMP that EPA did not proper ly account for generating unit retirements as the result of the 316(b) regulati on. First, EPA notes that the 13 percent of manufacturing facilities referred to by AMP as es timated to retire because of the rule, are in fact projected baseline closures and not projected closures due to th e 316(b) regulation. Second, EPA similarly identified projected baseline closure facilities in the electric po wer industry and excluded these facilities from the economic analysis in the same way the Agency did for manufacturing facilities baseline closures. This is appropriate because un its that are projected to close for reasons other than this rulemaking will not incur costs associated with this rule. As such, EPA did not assign any compliance costs to these f acilities. Specifically, EPA exclude d from its costing estimates electric power facilities that ha ve either already retir ed all of their steam generating units or will do so by 2021, according to the 2011 EIA-860 database, from cost and economic impact analyses. EPA notes that according to the 2012 EIA database, additional regulated electric generators either already retired all of their st eam generating units or ex pect to do so by 2021. To the extent that EPA included these facilities in their cost and economic impact analysis of the final rule, the total national cost of the final rule is overestimated.

AMP wants EPA to treat these baseline closures as a cost of the rule. As described in the preceding paragraph, the facilities cited by AMP ar e baseline closures and do not represent a cost or impact of the existing facilities rule.

Finally, apart from the recognition of baseline closures, EPA used discounted cash flow analysis to assess which manufacturing facilities may clos e as the result of the final rule. For electric generators, EPA made this assessment as part of the electricity market an alysis conducted using IPM. EPA reports any manufacturing facili ties or electric generators closures that are estimated to occur as a result of the rule as an impact of the rule.

Assertion that Cost

‐ to

‐ Revenue Analysis is Not an Appropriate Measure of Impact EPA acknowledges that USS may be correct in its assertion that th e EPA cost-to-revenue analysis does not fully account for different cost structures and operating margins across industries and individual firms/f acilities within those industries. As described in the economic analysis reports for the proposed rule and fina l rule, however, EPA views the cost-to-revenue analysis as a screening analysis and does not use it to identify closures or other significant impacts from the rule. In addition, as also docum ented in the economic analysis reports for the proposed rule and final rule, EPA relies on more robust measures of economic/financial impact in its assessment of severe and moderate impacts among m anufacturing facilities. Specifically, EPA uses discounted cash flow analysis of the change in facility business value for the assessment of severe impacts (closure), and intere st coverage ratio and return on assets for the assessment of moderate financial impacts. The afte r-tax cash flow analysis of change in business value uses essentially the same financial concept as EBITDA, as recommended by USS.

In addition, these analyses are based on deta iled accounting statements received from facilities as part of the 316(b) survey, and thus reflect in a very detailed way the operating financial performance of actual manufacturi ng facilities that are expected to be subject to the Section 316(b) Existing Facilities Rule.

Essay 31 310Assertion that the Cost and Economic Impact Analysis Does Not Account for Conditions in Specific Industries EPA disagrees that the current cost and economic impact analysis does not account for the specific business and financial circumstances of individual manufacturing industries. The EPA is confident that its analyses adequately account for variatio ns in business and financial circumstances. The current analysis accounts for specific business characteristics of industries and facilities in several wa ys: (1) as noted above, EPA uses sp ecific business characteristics of regulated facilities based on survey data, (2) EPA ad justs those survey data to the present based on changes in industry-specific business conditions over time and also adjusts based on business cyclicality considerations, and (3) EPA uses appropriate economic/financial analytic methods based on discounted cash flow analysis and other financial metrics, which, as discussed above,
account for different cost structures and operati ng margins across indus tries and individual firms/facilities within those industries.

Assertion that Cost Pass

‐ Through Assumptions are Overly Conservative EPA acknowledges Riverkeeper’s asse rtion that some aspects of th e cost pass-through treatment may possibly overstate impacts to regulated facilities or to co nsumers. However, EPA does not view the cost pass-through treatment as yielding overly conservative results. As discussed in the Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EA) report, EPA made the cost-pass-through assumptions in large part because of the substantial difficulty in determining the extent to which facilities will be able to pass their costs onto their consumers on a facility-by-facility basis – a virtual impossibility in an assess ment of effects on 544 implicitly and explicitly analyzed regulat ed electric generators and 521 sampled and sample-represented regulated manufacturing facilities. EPA acknowledges, as stated in the EA report, that these treatments may overstate impacts – whether in th e assumption that all costs would be absorbed by facilities in the facility impact assessment, or, in the alternative case, that all costs would be passed through to consumers for the assessment of rate impact to electricity consumers. However, EPA views these treatments as appropriate in order to ensure that impacts, whether to regulated facilities or to cons umers, are not understated. Furthe rmore, EPA concluded that these analyses yield sufficiently accurate results for EPA’s assessment purposes. Even though facilityand entity-level impacts may be overstated due to the no-cost-pass-through assumption and impacts on electricity rates may be overstat ed due to the 100-percent-cost-pass-through assumption, these analyses show very small effects for the final rule.

EPA further points out that the assumption of no cost pass-through for the manufacturing facilities impact analysis is ba sed on detailed assessment of a range of economic factors for the industries that are expected to be primarily subject to the final rule.

Finally, EPA agrees with Riverkeeper’s statement that compliance costs are likely to be shared by regulated facilities an d by consumers. However, as stated above, given the uncertainty in estimating the distribution of compliance cost burden between regulated facilities and consumers, EPA views its approach as reason able and appropriate for regulatory analyses.

Essay 31 311

### Essay 35: Installation Downtime for Manufacturing and Non

‐ Electric
Power Generating Facilities

Introduction A number of commenters state that EPA assume d no downtime for manufactu ring facilities that would be subject to the rule as they install co mpliance technologies, and that this assumption is incorrect. These statements reflect incorrect understanding of information presented in the Economic and Benefits Analysis for Proposed S ection 316(b) Existing Facilities Rule (EBA) report, and described again in the Economic Analys is for Final Section 316( b) Existing Facilities Rule (EA) report. As explained below and in these documents, in evaluating compliance costs, where appropriate, EPA assigned costs associated with downtime for manufacturers. In addition, a number of commenters stated that where EPA had estimated downtime, it had underestimated the costs to the manufacturer as sociated with that downtime. In general, they noted that EPA only included costs to purchase electricity and that it should have also included costs of associated manufacturi ng production downtime.

History of the Development of Downtime Estimates for IM Controls for Manufacturers EPA’s determination of the length of possible do wntime associated with various IM controls for this final rule is largely based on its prior anal ysis and evaluation that was done for the Phase III rule promulgated in 2006 which covers, among othe rs, certain existing manu facturing facilities. See Chapter 5 of the TDD for the Final 316(b) Phas e III rule. As explained there, the length of downtime, when incurred, is a function of whic h technology is being retr ofitted and the size of the intakes. Because the technologic al approaches and the size of the intakes to which this final rule applies are not exactly the same as the Phas e III final rule, EPA made slight adjustments to its earlier approach. For example, for the final rule, EPA developed downtime estimates for four ranges of intake flow rather than the three ra nges in the Phase III rule. Also, for the reasons explained in Chapter 5 of the TDD for the Final 316(b) Phase III rule, EPA continued to conclude that it is appropriat e to use a different methodology to estimate downtime for electric generators than for manufacturer s for both the proposed and final existing facilities rule. EPA notes it did not receive any comments suggest ing its overarching methodology for estimating the length of downtime for manuf acturers was inappropriate.

Length of Downtime for Installation of IM Controls As explained above, EPA’s estimates of the length of compliance downtime for installing technologies to comply with the final existing rule’s IM standard s are largely base d on analysis from the final Phase III rule. With the excep tion of those commenter s that inaccurately concluded that EPA assumed no downtime would be associated with IM compliance for all manufacturers, EPA did not receive any speci fic comments on its proposed estimates of downtime for manufacturers to inst all the various technol ogical approaches to comply with the proposed existing facilities rule. As such, the methodology for today’s final existing facilities rule is the same as the propos ed existing facilities rule.

Essay 35 312Also, as explained above, the le ngth of downtime, when incurred, is a function of which technology is being retrofitted and the size of the intakes. In the cost analysis for compliance with the impingement mortality standards in today’s final rule, EPA assigned one of seven compliance modules to existing model manufacturi ng facility intakes, de pending on site-specific conditions. See Chapter 8 of the TDD. These modul es include the following technologies and/or combination of technologies: larger intakes, we dgewire screens, modified traveling screens, barrier nets, and variable sp eed pumps. After careful consid eration of the installation requirements for each technology, consistent with its prior approach for ma nufacturing facilities (Phase III rule), EPA conclude d that significant down time would be required only for larger intakes or technologies that re quired modifications to the in take civil structures and/or modifications or tie-ins to intake piping. Fo r the reasons explained below, of the five technologies in the cost modules, in most cases only larger inta kes (associated with Cost Module 3) and wedgewire screens (associat ed with Cost Module 4) would f it into that category as they would require modifications to the intake civil structures or piping. EPA generally assigned these two technologies to intakes that did not already employ traveli ng screens because EPA does not know whether traveling screens would be compatib le with the existing intake structure without significant modifications. EPA chose to assi gn these two technologies because they are compatible with most intakes (with some restri ctions for wedgewire) and attain compliance via the low velocity compliance alternative, which could be guaranteed thr ough engineering design. EPA notes that the final rule includes seven co mpliance alternatives for the IM standards and EPA does not know whether manufacturing facilities that currently lack traveling screens will comply by increasing their intake size to acco mmodate low velocity screens and/or by adding wedgewire screens. EPA’s costing approach is likely conservative (hi gh cost) because these approaches generally incur higher costs than othe r compliance alternatives , if available to the facility. Because EPA does not have data to pred ict which of the lower cost options (e.g., fish avoidance, barrier nets, flow reduction, etc.) would be available, EPA chose this more conservative approach. Thus, in many cases, this approach will likely result in overestimating both the compliance technology costs and dow ntime requirements for these intakes.

As explained above, EPA concluded that upgrades of existing trav eling screens, installation of barrier nets and variable speed pumps would result in no downtime. First, 45 percent of intakes at manufacturing facilities already employ trav eling screens. In these cases, EPA assigned modified traveling screen upgrades only if the existing technologies we re not deemed already compliant. This virtually guarantees that upgr ades will involve only screen removal and replacement, which screen vendors have indicated could be performed in one to three days where fish troughs and new spray wate r piping are required (see the Phase II TDD). In most cases, these upgrades can be accomplished while an intake continues to operate, give n that most facility intakes include more than one traveling scr een. This allows sequential upgrading of the individual screens without shutting down the entire intake. EPA notes that existing screens already require periodic replacement/refurbishment and that operating contingencies for these activities should have already b een established in most cases. 55 At facilities where a continuous supply of water is required, various contingencies such as multiple parallel intake equipment, alternative sources of cooling water, and opera tional measures are often standard design components that ensure system reliability.

55 For example, some commenters discussed the use of fi xed screens as a temporary replacement for traveling screens that are being re placed or refurbished.

Essay 35 313Upgrade of fixed speed pumps to variable speed pumps may take several days to several weeks depending on the project scope. However, most intakes utilize multiple parallel pumps, including backup pumps, which, like traveling screens, allow for one or more pumps to be taken out of servic e for maintenance/replacement while others continue operation. Thus, the relatively short duration, combined with availability of parallel and alternative equipment, make it very unlikely that variable speed pump technology upgrades would require any signi ficant facility downtime.

No downtime is needed for barrier nets because they are independent of the intake structure and can be installed while intakes are operating.

Chapter 8 of the final TDD shows the number of model facility intakes that were assigned each cost module. Out of 735 intakes at manufacturing facilities, EPA assigned some combination of Cost Module 3 and/or 4 to 213 intakes. EPA assigned other cost modules to the remainder of the intakes. Because, as explained above, the technologies associ ated with these other cost modules would not require downtime, EPA appropriately did not include downtime for these intakes.

For those intakes that were assigned some combination of Cost Module 3 and/or 4, EPA assigned installation downtime as indicated in the following table (reproduced from Chapter 8 in the final TDD).

Exhibit 8 -4. Net Construction Downtime for Impingement Mortality Compliance Technologies

Cost Module Number 1 Manufacturers (Weeks)

Flow < 6,944 gpm Flow < 6,944 gpm Flow 6,944 to 400,000 gpm Flow 400,000 to 800,000 gpm Flow > 800,000 gpm 1 0 0 0 0 0
3 0 0 0 1 2
4 3 3 7 8 9
5 0 0 0 0 0
10.2 (3 & 5) 0 0 0 1 2
10.3 (1 & 5) 0 0 0 0 0
15 0 0 0 0 0

As described in Chapter 8 of the TDD, because the scope of construction projects at the lower flow facilities is much smaller than at larger flow facilities, where EPA determined downtime would likely occur, it projected longer shut down periods with larger flow facilities. EPA notes that it did not receive any specific comments on its propos ed estimates of downtime for any of the flow levels for the cost modules, and as such, the downtime estimates for the final rule are the same as those in the proposed rule.

Essay 35 314Costs of Downtime for Installation of IM Controls Where EPA assigned downtime associated with in stallation of IM controls, EPA assigned costs for m anufacturing facilities to pu rchase power from the grid. Becau se electricity generated onsite may be needed by many processes simultaneousl y, EPA concluded that many facilities would not be able to modify operati ons in a manner that would avoid impact on electricity generation during downtime. Therefore, downtime likely re quires manufacturers to temporarily curtail electricity generation and to purchase power fr om the grid to continue operation. Where applicable, the cost of this temporary suspen sion of power generation includes the cost of purchasing replacement power plus the loss of an y revenues received from selling power minus the variable costs of generati ng electricity. Commenters assert ed that EPA wrongly concluded that they would incur only the costs associated with obtaining electric ity associated with downtime. They asserted that EPA should simila rly include costs of pr oduction downtime. As explained in more detail below, EPA disagrees with these commen ts as its record supports the conclusion that it is unlikely that an entire f acility would shut-down and lose revenue associated with lost production of goods.

Manufacturing facilities typically involve numer ous sequential processe s with varying water requirements for the processes and in many cas es, additional water requirements for plant electric power and steam genera tion. Many large, manufacturing f acilities not only have multiple types of processes, but also have multiple para llel process trains. Maintenance for the more complex operations may involve th e shutdown of individual process tr ains or series of trains, but this leaves the remainder of the facilities in operation. The sequential processes often have storage capacity for the intermediate products, en abling such processes to continue operating while “upstream” processes are offline. As such, while the need for cooling water for the various manufacturing process steps is variable and fl exible, the need for electricity which serves multiple processes simultaneously tends to be continuous and is often a major component of cooling water requirements.

Nearly all manufacturing pro cesses will require maintenance of production equipment and cooling water systems that will require interrup tion of the operation of equipment at various time intervals. Some manufacturers contacted by EP A did not generally re port scheduled whole facilities shut-downs, which led EPA to conclude th at they have vast experience in engineering alternate solutions to plant shutdowns during times of maintenance in terruptions and major construction. In order to determine how a manuf acturing facility might re spond if faced with the potential need to enlarge intake s or install technologies that may require modifications to the intake civil structures, EPA collected informati on from eight manufacturing site visits and from phone calls to six manufacturing facilities. In gene ral, facilities reported that they would likely use an approach or engineer a solution to minimize plant shutdown to the maximum extent possible. The record demonstrates that large, co mplex facilities, such as chemical manufacturing and steel mills, may seldom shut down the entire facility. But they do shut down individual process lines for extended maintenance periods and/or have redundant pr ocess equipment that can be rotated into service for maintenance or upgrades. This redundant process equipment often includes multiple intake screens and pumps. In cases where the cooling water flow from an intake may need to be interrupted, engineering solutions such as an alternative cooling water source, temporary bypass, or backup equipment may be employed.

Essay 35 315EPA notes that implementation of the various contingencies that may need to be employed to minimize downtime costs as described above may require flexibility in the selection of the compliance alternatives and esta blishment of compliance schedul es taking into consideration site-specific technical and opera tional limitations. The final rule was revised to address these special considerations by givi ng the Director discretion to establish different compliance schedules for manufacturing facilities where extenuating circumstances (e.g., lengthy scheduled outages, future production schedules) warrant es tablishing a different compliance date. See Section VIII of the preamble. Also, the final rule gi ves a facility greater flexibility in determining a compliance method, including a larger selection of IM compliance alternatives such as an alternative (system of technologies) that considers cumulative reductions of multiple technologies. This flexibility allows faciliti es to choose compliance alternatives that will minimize financial impacts such as lost produc tion of goods. See Section IV of the preamble. EPA has concluded that these changes addres s the concerns expressed in public comments concerning compliance outages by minimizing im pacts and by giving greater flexibility in scheduling compliance dates to al low for coordination of the timing of any outages caused by the installation of compliance techno logies with production and l ong term maintenance schedules.

Some examples from EPA site visits and industr y contacts that support the assumptions used in EPA’s approach are described below.

A steel mill noted that the blast furnaces are taken offline for maintenance for 10 days per year but only for one day at a time. However, the steel shops are batch processors and have opportunities for longer downtime periods. Many of the steel shops (including the smaller specialty shops) can operate inde pendently of the remainder of the facility and can share materials with other sites to remain operational. Th ey also reported that th e facility uses modular (temporary) cooling towers when existing tower units are being repaired or replaced. (See DCN 10-6551.)

A chemical manufacturer explained that even though the en tire facility rarely shuts down, individual process lines are peri odically taken offline for maintena nce and that there is sufficient redundancy within the facility to prevent widesp read downtime; for exam ple, multiple boilers can be rotated to continue to provide steam while any single one is out of service. Each cogeneration unit is taken offline once per year and other process units go offline as often as twice per year or as infrequently as every 2-3 years. (See DCN 10-6556.)

A refinery stated that they were able to rebu ild a collapsed cooling tower while the facility continued to operate. Facility re presentatives stated that the f acility operated w ith a temporary cooling water tower and at a lower production cap acity, but did not experience any plant-wide shutdowns as a result of the re building process. The affected process unit was only taken fully offline during the tie-in. During the replacement of another old inefficient cooling tower, they were able to adjust production rates and share (or pur chase) intermediate products to minimize any construction-related downtime. The major ity of construction took place during a major maintenance outage of 6-9 months (unrelated to the conversion to closed -cycle cooling). Major outages typically occur every 4-5 years and last approximately 6 weeks, although a recent outage lasted 3 months due to low demand. Facility repr esentatives stated if the extended outage had not occurred, much of the construc tion of the replacement tower would have been done while the

Essay 35 316unit was operating. EPA has concluded that tie-in a nd startup activities shoul d take no mo re than 6-8 weeks to complete. (See DCN 10-6542.)

A food processing facility stated that a planned replacement of the intake traveling screen would occur during their four day annual boiler inspecti on shut down. This 10 mgd average intake flow facility has one screen and two pumps but one is a backup pump. The facility has a backup intake that can provide an a lternate source of water to the pumps if needed. (See DCN 12-6552.)

In developing the Phase III rule, EPA also contacte d several refineries and chemical facilities to inquire about experience with inta ke upgrades, availability of sc heduled downtime and strategies they might employ. One facility, a refiner y, had installed wedgewire screens without experiencing any downtime by sequentially work ing on one intake at a time. (See DCN 9-0043, EPA-HQ-OW-2004-0002-2184.)

Finally, only one commenter on the existing fa cility rule, (Georgia Pacific, comment 2272), provided an actual estimate of downtime dura tion. This commenter indicated downtime was limited to no more than one day to modify an intake.

Therefore, as a result of the small number of intakes that EPA projects would likely incur downtime, information from facilities that de monstrates multiple approaches, flexibility, redundant systems, contingency strategies, and engineering solutions, etc, EPA appropriately concludes for manufacturing faci lities as a whole ther e will be no, or only very limited, lost production costs for facilities to in stall technology to meet the fi nal rule’s impingement mortality (IM) requirement.

Length of Downtime and Associated Costs for Installing Entrainment Controls As explained in the preamble, the final rule es tablishes a BTA standard for entrainment that requires the determination of re quired entrainment reduction meas ures in a structured, sitespecific permitting proceeding. The BTA standard for entrainment requires that certain prescribed factors must be considered in the decision and must reflect the maximum reduction in entrainment warranted after consid eration of relevant factors, including th e number and types of entrained organisms. As such, the final rule doe s not establish a nationa l numerical entrainment reduction performance standard nor identify a nationally applicable BTA technology. Also as explained in the preamble, while EPA considered costs in evaluating t echnologies as BTA on a national basis, costs were not dispositive. Rath er, EPA was unable to identify a technology or combination of technologies that is BTA for entr ainment on a national basis either because they were not uniformly effective and/or not technica lly available on a national basis. Therefore, comments related to potential costs associated w ith potential downtime to install entrainment controls, including closed-cycle cooling, are no t relevant to EPA’s national BTA entrainment determination.

However, EPA did consider options that would have subjected approximately 90 percent of the cooling water intake flows on a national basis to entrainment requirements based on closed-cycle cooling. For generating facilities, EPA has assume d that the duration of an outage for a closedcycle retrofit would average about 8 weeks and that costs for lo st generation would be based on the additional net 4-week period that a generatin g unit would be shut down if the retrofit were scheduled to occur concurrently with a scheduled maintenance outag es that typically lasts about

Essay 35 3174 weeks. At proposal, EPA assumed that, unlik e generating facilities, there would be no downtime costs for closed-cycle cooling retrofits at manufacturing facilities due to the fact that manufacturers are often more se gmented in their production and use of cooling water and are therefore more likely to be able to shut down individual intakes or process lines without interrupting the production of the entire facility. However, se veral public comments noted that, at some facilities, generating system s provide electricity or electricity and steam (cogeneration) to many processes within the facilities and that interruption of the c ooling water source and thus the operation of generating/cogenerati ng system could impact facilitie s production. In response, for today’s final rule, EPA revised the compliance cost methodology used in evaluating closed-cycle cooling costs under Proposal Options 2 and 3 to include downtime and associated costs for manufacturing facilities. Where EPA estimated downtime to retrofit to closed-cycle, it applied costs in a similar manner as downtime applied to IM technologies. That is, as its record demonstrates, the overall manufacturing process will not suffer significant production losses and that the effect of downtime is primarily associ ated with the effect on the generation system. These costs are assessed as the equivalent cost of replacement electricity and lost revenue for offsite sales of excess generation.

For closed-cycle retrofits at manufacturing f acilities, EPA applied a downtime duration of 4 weeks. This is consistent with the downtime EP A included for non-nuclear generating facilities, but the value reflects a somewhat different basis. At generating facilities, most of the power generated is distributed offsite and lost power due to downtime is replaced by other generating units and facilities via the gr id. However, most of the power/steam generated onsite at manufacturing facilities is used onsite. This configuration requir es that interruptions to the operation of the generating system must be acco unted for using various contingencies including: offsite replacement sources (e.g., utility grid co nnections); redundant (spa re) generating capacity; temporary replacement generating units; or tempor ary replacement cooling water sources. The availability of these various c ontingencies varies by facility ty pe and location and insufficient data was available to enable EPA to assess availa bility of different contingency methods. Rather, EPA developed a downtime value to represent a na tionwide average. Because generating units at manufacturing facilities will require periodic main tenance, it is reasonable to assume that many manufacturing facilities will have included in their design and operating schedule consideration of this contingency by including sufficient sp are generating capacity, access to replacement power through utility connections, or planne d outages. This would allow for rotating maintenance downtimes for individual generati ng units, at least during periods of reduced demand. At many of these facil ities, the downtime costs will be minimal because the closedcycle retrofit (which EPA estimates may take up to 8 weeks) can be performed on individual generating units in a manner that avoids interrup tion of the supply of electricity and steam. EPA expects that a large portion of manufacturing facilities fall wi thin this category. For those facilities that rely upon replacem ent electric power from the grid, the costs would be for replacement power for the generating unit downt ime duration that exceeds the normal downtime for generating unit maintenance. For power gene rating units this is four weeks, which EPA expects to be reasonable for these manufacturing facilities as well. EPA r ecognizes that for those facilities that cannot rely upon multiple generating units and excess capacity or replacement power from offsite, costs for replacement of electricity and steam generation capacity or replacement cooling water for the estimated 8- week retrofit duration may be necessary. While the cost of these temporary solutions may exceed the costs for replacement electricity, based on site visit data and the number of relevant comm ents received, EPA concluded that such facilities

Essay 35 318are in the minority and th at the aggregate downt ime, when balanced against those facilities where EPA expects the downtime will be zero, s hould result in an overall facility downtime (average across all facilities) that is similar in magnitude to the 4-week downtime. Therefore, because EPA was unable to distinguish which faci lities would utilize the different types of contingency methods describe d here, EPA applied the 4-week downtime costs to all manufacturing facilities when evaluating compliance options that involved a closed-cycle cooling retrofit.

EPA notes that because costs were not dispositiv e in rejecting closed-cycle cooling as BTA on a national basis, in instances where EPA may ha ve underestimated downtime associated with options based on closed-cycle cooling for ma nufacturers, it would not have altered EPA’s determination. Also, where facilities are providin g costs for entrainment controls for their sitespecific BTA entrainment determination, if they can demonstrate downtime would be required for their specific site, the facility can include downtime related costs and the Director may consider them as part of the site-s pecific BTA entrainment determination.

Industry or Facility

‐ Specific Downtime A commenter stated that EPA has misinterpreted the “downtime” for facilities trying to meet the impingement standards, noting that while their cogeneration plant can su stain downtime for one of the boilers, they must be able to continuously withdraw water to supply steam to customers, including a hospital. They note that the cost of replacement city water is exorbitant and depending on water utility demand at the time, replacement water may not be available. The commenter provided no details rega rding their intake design or unde r what circumstances intake flow would need to be interrupted. EPA unders tands that facilities with small intakes, particularly those with only one screen, may not have a backup or second screen to use when intake or screen modifications are required. However, EPA conc luded that in virtually all circumstances, the time needed to modify the in take to meet impingement requirements will be brief and that solutions such as temporary screens or alternative water sources can utilized. In this particular case, the commenter’s concern about potential inability of city water capability to meet demand can be resolved by appropriate scheduling because the Director will have flexibility in establishing the compliance date; th e purchase of city water, if necessary, can be scheduled during periods when both the city water demand and cogeneration steam demand are lowest. Because water will likely only be needed for a relatively short duration, the cost should not be excessive. In other cases, where an a lternative source is not available, engineering solutions such as temporary intakes and bypass pumps may be employed. EPA has provided flexibility and options for IM compliance in the final rule so that facilities such as this one would have a range of options to choose from.

A commenter stated that their facility cannot lo se power for greater than 12 hours without very high restart cost, which was not considered by EP A. They also state that they cannot purchase enough power without extensive investment in in frastructure unless th ey radically curtail production at huge costs. This example was provi ded in support of their statement that EPA should provide a more flexible approach in regul ating industrial facilitie s. EPA notes that the commenter suggests that the scenario that would potentially create such an interruption is a requirement to replace the intake structure. The final rule includes revisions that provide for additional alternatives for complying with the BT A IM standard that do not require replacing the

Essay 35 319intake structure (see Section IV of the preamble.) The commenter provided no information to suggest that any of the other options are not available and th at such a shutdown would be necessary nor do they provide any information c oncerning the potential co st of infrastructure investment. In the final rule, EPA has provided the Director more flexibility in determining compliance scheduling and more flexibility through additional options for IM compliance. As a result, given the alternatives, facilities woul d have many options to choose from and greater ability to schedule compliance upgrades to a ccommodate their specific circumstances.

Another commenter argued that downtime costs fo r petroleum refineries would be relatively higher than downtime for power plants because facilities often rely on a single intake for multiple process units and are often located in highly developed areas where modifying an intake may be more complex and time for making modi fications may be limited. During development of the Phase III Rule, EPA obtained information from three refineries concerning scheduled downtime, experience, and potential solutions that might be employed to address the possibility of intake operations in terruptions associated with intake technology retrofits (see DCN 9-0043 in the Phase III Final Rule). EPA found that two refineries did have sche duled, whole facility downtime but only infrequently ever y 4 to 6 years, but that both had two intakes that could be retrofitted independently without a need for downtime. The third refinery did not normally schedule a whole facility shut- down but had already installed we dgewire t-screens without the need to shut down production by connecting the screens to each pump one at a time. This information supports EPA’s conclusion that down time for refineries should be negligible.

Other Downtime Comments Some commenters state that facilities may not be able to pu rchase electricity for a number of reasons, such as insufficient transmission or st ep-down transformer capacity, and that steam will be available for purchase only in rare instances. Fo r example, a commenter states that because its facility is a stand-alone facil ity, it cannot purchase enough power, without substantial investment in infrastructure, unless production is curtailed. EPA acknowledges that it may not be possible in each and every case for facilities to purchase powe r. But as discussed above, facilities have several methods for replacing power or avoidi ng the need to replace power. Because EPA does not have the ability to say with certainty which facilities may have to purchase power and which facilities may have alternative ways to avoid needing to purchase power , as explained above, EPA included costs to purchase power wher e it estimated downtime for manufacturers. However, EPA also concluded that revisions to the final rule th at provide additional compliance flexibility will enable many manufacturers to mi nimize or avoid downtime altogether and that those requiring downtime or ot her engineering solu tions are in the minority. As such, the estimated costs for full power replacement repr esent a middle ground between facilities where no power replacement will be necessary and thos e where the cost of additional engineeringsolutions may be necessary. EPA concluded that this approach is reasonable because these overand under-estimations of costs will tend to ba lance out in the overall national estimate.

Some commenters argued th at the measures EPA suggested c ould be used to avoid productionrelated downtime impacts – such as building up inventory in advance – are costly, and that avoiding production losses that would otherw ise occur during downtim e does not eliminate adverse economic impacts. However, these comm enters failed to support this very general statement with details on the potential costs. As stated, there are a number of possible ways for

Essay 35 320facilities to avoid downtime and while any one op tion may not be available for a given facility, EPA concluded that facilities will be able to avoid downtime for manufacturing processes using one of the above methods.

Commenters point to EPA’s statement, “In EPA’s extensive experience with manufacturers while developing effluent guidelin es, 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 facil ity” (see 76 Fed. Reg. at 22,214) and state that EPA’s support for this statement is illogical. Co mmenters state that EPA’s devel opment of effluent guidelines has not involved any consideration of intake structures or their modi fication. EPA disagrees that its historical understanding of plant operations obtained during de velopment of effluent guidelines is not relevant or transferable to the water requirements associat ed with an intake structure. While EPA did not specifically focus on wa ter intakes during the development of its development of effluent guidelines for over 56 industrial categories and over 450 subcategories, in the course of developing the Phase II and Phase III rules for manuf acturing facilities and today’s final rule, EPA visited cooling water in take structures and a ssociated manufacturing operations at more than 50 power plants and ma nufacturing sites. During these visits, the EPA gathered information on the intake technologies and cooling water systems. EPA also obtained operating information concerning process operating schedule and water use for many individual industrial processes. Such information is useful in assessing the source, volume and character of individual waste streams and poten tial management strategies such as pretreatment and source reduction. EPA notes that the implementation of wa stewater management strategies also requires consideration of proce ss interruptions due to technology retrofits. EPA’s engineering judgment, developed over years of the ELG development process and consideration of 316(b) requirements, supports its conclusions on downtime and associated costs to the industry.

Essay 35 321

### Essay 36: Employment Effects Analysis

Overview of Comments The comments concerning potenti al employme nt effects rang e quite widely with some commenters offering favorable a ssessments of the employment effects analysis while other commenters raised various issues about the analysis or its findings. Comments include:

 Argument that EPA did not present quantified estimat es on the rule’s potential employment effects and thus did not meet the requirements of executive orders for regulatory analysis.

 Some commenters expressed c oncerns with aspects of EPA’s approach for estimating employment effects, including in particular concerns about how EPA accounted for the effect of potential increased electricity rates on employment throughout the general
economy:

o Assumption of full cost pass-through in estimating potential electricity price increases.

o Use of more than one analysis case for the assumed elas ticity response to electricity and electricity-dep endent product price increases.

 Recommendation that EPA look at previous empirical studi es of potential employment effects associated with electricity price increases. Some comment ers claim that other studies found higher employment losses than estimated by EPA in its analysis for the proposed rule and other options consider ed. Other commenters argue the opposite.

 Recommendation that EPA estimate job effect s in the electric power sector based on potential loss in electric ge nerating capacity from the ma rket model analysis and the employment intensity of el ectric power generation.

 Criticism that EPA did not account for em ployment losses in baseline closures in Manufacturers.

 Argument that Option 3 (all cooling towers in the proposed ru le analysis) would result in the least adverse overall employment effectand would achieve the most positive nearterm employment and economic effects, and th at this factor woul d support selecting all cooling towers as the basis for the 316(b) existing facilities rule.

 Arguments supporting the exis ting facilities rule base d in part on the potential employment requirements for achieving regulatory compliance.

General Response Throughout the development of 316 (b) regulations, EPA has conducted extensive analysis of the economic effects of the actions it considered and provided that information to the public. In addition, as required by Executive Orders 12866 and 13563, EPA assessed the potential employment effects of the 316(b) regulation at the time of the proposedrule in 2011 and now again as it promulgates the Final Section 316( b) Existing Facilities Rule (final rule).

Essay 36 322EPA used different methods in assessing employm ent effects for the proposed and final rules, both of which provide useful insight into the rule’s potential employment effects. 56 As documented in Chapter 9 of the Economic Analysis for Final S ection 316(b) Existing Facilities Rule (EA) report, EPA notes that the analysis of employment effects presents significant challenges due to the multiple ways in which regulatory requirements may affect employment. To illustrate, on the one hand, the installation of equipment to achieve compliance with a regulation may result in employment increases, particularly in th e near term during the period in which regulated facilities meet compliance requirements. However, the costs incurred for installing and operating compliance technology may lead to price incr eases in affected industries. Looking longer term, these price increases may lead to reduced purchases of the output of these industries, and, as a consequence, reduced pr oduction activity and employment. At the same time, environmental regulations may have other employment effects as industries adjust their production processes in response to regulatory requirements, whic h may lead to increases or decreases in employment. Finally, compliance response actions in the directly regulated industries may affect employment in economically linked industries. Again, these effects may be positive or negative, will likely vary over time, and involve considerable uncertainty in their estimation.

Given the multiplicity of factors affecting employment, the conflicting character of their effects, and the likelihood that effects will vary substant ially by industry, EPA concluded that the 316(b) regulation could have a range of employment effects – overall increa ses or decreases in employment, and with varying effects over time . Ultimately, however, the EPA concluded that, in no event, would these employ ment effects be so substant ial that they would change EPA’s decision about what standards it should adopt for the final rule. In this regard, the comments concerning the employment effects analysis – wh ich to a large degree focus on some element of EPA’s analyses or suggest alternative approach es and data – are usef ul in furthering the academic discussions of how to assess potential employment effects, but were not dispositive in EPA’s determinations for the final rule.

Moreover, the available evidence from peer-review ed econometric studies that use a structural approach to estimating the employment impacts of environmental regulat ions, applicable to overall net effects in the regulat ed sectors, converge on the finding that such effects, whether positive or negative, have been small and have not affected employment in the national economy in a significant way. Based on this evidence a nd additional informati on on regulated sectors impacted by the rule presented in Chapter 9 of the EA, EPA expects that the final rule’s employment impacts are not likely to be substantial.

EPA’s responses to the employment effects comments follow below.

Failure to Perform a Quantitative Employment Effects Analysis EPA disagrees with some commenters’ claim that EPA did not conduct quantitative employme nt effects analysis for the existing facilities ru le. For proposal, EPA presented a quantitative analysis of employment effects in Chapter 10 of the Economic and Benefits Analysis for the Proposed Section 316(b) Existi ng Facilities Rule (EBA) report.

56 See Economic and Benefits Analysis for the Propos ed Section 316(b) Existing Facilities Rule (EBA) report, Chapter 10, and Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EA) report, Chapter 9.

Essay 36 323For the final rule, EPA approached its analysis of employment effects differently than for the proposed rule. Specifically, unlike for the proposed rule, for the final rule, EPA did not estimate quantitative employment impacts but instea d included only a qualitative discussion. In considering an approach for the final rule, th e Agency concluded that the methods used at proposal were not sufficiently robust, largely beca use they relied on an input-output analysis that assumed fixed production relationships and used hi storical data to estimate the labor and other inputs required for compliance with the rule. Si nce publication of the proposed rule, EPA has concluded that an input-output analysis-based approach is inappropriate for assessing employment impacts of national-le vel regulations. Input-output models are static, do not include prices, and assume the supply of all inputs is in exhaustible. They do not m odel a wide variety of adjustments that are expected to occur over ti me, such as changes in production processes, technology or trade patterns. 57 After reviewing the public comments EPA received on the proposed rule, the Agency concludes that the commenters have not identified any specific improvements to the employment analysis of the proposed rule. Thus, because EPA does not have a robust methodology to calcu late quantitative employment effects, nor did commenters provide alternatives, the final rule EA includes a qualitative discussion high lighting the variety of potential adjustments in the labor market that may follow the rulemaking.

For the final rule, EPA sought methods that would circumvent the shortcomings of the methodology used for proposed rule. As discussed in Chapter 9 of the EA report, however, because of the complexity of factors through which an environmental regulation may affect employment, the myriad uncertainties in assess ing economy-wide, long-ter m employment effects of a regulation, EPA conducted onl y a qualitative assessment of em ployment effects for the final rule. Because EPA does not currently have a su fficiently robust methodology to quantitatively assess the impact of today’s final rule on em ployment, the qualitative employment effects analysis undertaken for the fi nal rule is appropriate.

Analysis of Electricity Rate Effects on Employment Some commenters disagreed with EPA’s assumptions and methodology for assessing the effect of increased electricity rates on employment. Criticisms included the assumption of full cost pass-through in estimating potential rate effects, and the use of more than one analytic case for assessing potential effects on businesses from rate changes. EPA points out, as noted above, that there are myriad uncertainties in estimating employ ment effects and that estimated effects could range from positive to negative impacts overall, a nd with varying effects over time. At present, the EPA lacks a method basis for quantitativ ely estimating employment effects, and commenters’ concerns fall within the range of EPA’s expected uncertainty for employment effects estimates.

In addition, as discussed above, EPA notes that it approached consideration of employment effects for the final rule differently than for the proposed rule. Specifically, in considering an approach for the final rule, the Agency conclude d that the methods used at proposal were not sufficiently robust, largely because they relied on an input-output analysis that assumed fixed production relationships and used historical data to estimate th e labor and other inputs required for compliance with the rule. For the final rule, EPA did not estimate the change in employment

57 For a discussion of input-output models see Chapter 8 of the EPA Handbook on the Benefits, Costs, and Impacts of Land Cleanup and Reuse (2011).

Essay 36 324quantitatively; instead, the Agency assessed qualitatively the many wa ys the final rule may affect employment levels in the directly affected i ndustries, the environmental protection sector, and the U.S. economy overall. See EA Chapter 9 fo r discussion of the fi nal rule’s potential employment effects.

As stated above, in EPA’s view, in the absen ce of a robust quantitative employment effects methodology and adequate data, the qualitative em ployment effects analysis undertaken for the final rule is appropriate to produ ce an informed regulatory result.

Use of Other Methodologies and Data for Performing Employment Effects Analysis As stated above, EPA recognizes the importa nce of assessing the employment effects of environmental regulations, and acknowledge s commenters’ recommendations for potential improvements in the methods and data for assessi ng employment effects. At the same time, EPA disagrees with some of the proposed appro aches for assessing employment effects.

Recommendation to Use the Labor Intensity Coefficient Developed from NERA Study for the Employment Analysis One commenter recommends using a labor intensity coefficient from a NERA study (1 job per 28.8 MW of capacity) in conjunction with estimated capacity losses as the basis for estimating potential employment losses in the electric power industry due to the 316(b) existing facilities rule. EPA disagrees with the commenter’s recomm endation for several reasons. First, in making the calculations, the commenter used capacity losses estimated for the group of regulated facilities only, and not for the overall electricity market. Seco nd, the commenter accounted only for the amount of retired capacity and failed to account for the amount of capacity gained through new builds. Given that in the context of the Electricity Market Analysis EPA conducted using the Integrated Planning M odel (IPM®), when looking at the overall electricity market, the retired capacity is essentially replaced by the eq uivalent amount of new capacity, the overall net change in jobs, if any, is likely to be sm all at the level of the electricity market.

Because the commenter did not provide the referenced study conducted by NERA, EPA was unable to verify the assumptions/conclusions /analyses underlying the fixed labor intensity coefficient. Therefore, EPA could not determine whether this coefficient can be applied to an increase in capacity, to estimate increased jobs , just as the commenter applied it to retired capacity to estimate job losses. Assuming this labor intensity coefficient can be used regardless of the direction of changes in capacity, the net change in jobs due to the final rule estimated using the proposed methodology would be small.

Recommendation That EPA Estimate Job Effects in the Electric Power Sector Based

on Potential Loss in Electric Generating Capacity from the Market Model Analysis In its analysis for the final rule, EPA did not specifically assess the employment effects from early retirement of generating units for seve ral reasons. First, only 23 units (out of 14,920 generating units analyzed in IPM) accounting for 0.1 percent of total market capacity, are projected to retire early due to the final ru le. Second these retired units do not contribute significantly to electricit y supply in the baseline case, with 15 units having a capacity utilization

Essay 36 325rate of zero, seven units with less than 11 percent, and only one unit with substantial capacity utilization of approximately 66 percent. Third, so me jobs will be gained as the result of new generating units being constructed and/or increa sed utilization of exis ting units to replace the relatively small amount of electricity otherwise ge nerated by the units proj ected to retire early. As a result, EPA does not expect significant, if any, job losses fr om capacity effects associated with the final rule.

Recommendation to Use Results from Other Studies in the Employment Effects Analysis EPRI suggested that EPA compare the results from its employment effects analysis with results from other, empirically based studies. As an ex ample of an empirical st udy, EPRI referred to a study conducted by the National Bu reau of Economic Research (NBER) that found that job losses resulting from electricity price increases could be “r oughly double” EPA’s employment effects estimated in support of the proposed rule. Other studie s investigating the relationship between electricity prices and employment in the United States that EPRI mentioned are: Jaffe et al. (1995), Berman and Bui (2001), Greenstone (2002), and a study conducted for the National Bureau of Economic Research, Deschenes (2010).

Prior to deciding on its approach for the final rule, EPA review ed various studies looking at employment effects, including those cited above . These studies revealed a complex array of factors through which an envir onmental regulation may affect em ployment, and discuss myriad uncertainties in assessing economy-wide, long-t erm employment effects of a regulation. These studies support EPA’s conclusi on that its proposed quantitativ e methodology was not sufficiently robust.

Chapter 9 of the EA report provides a substantia l discussion of the ways a regulation can affect employment in the directly affected and othe r industries and resulting uncertainties in employment effects assessment. EA Chapter 9 al so describes the considerable complexity in estimating the employment effects of a regulat ion and issues in the currently available approaches for estimating these effects. In EPA’ s view, the development of a comprehensive and sufficient approach for quantitatively estimating employment effects remains an ongoing challenge, which EPA is addressing via a carefull y structured review of methods for analyzing the economy-wide effects of environmental re gulations, including employment effects. Until completion of this effort, and associated de velopment of improved methods for analyzing employment effects, EPA will not provide estim ates that, in EPA’s view, are based on an inadequate or insufficien tly validated methodology.

Failure to Account for the Employment Loss in Baseline Closure of Manufacturers Facilities EPA acknowledges the commenter’s comments th at the Agency did not assess employment effects resulting from closure of the 13 percent of regulated ma nufacturing facilities that EPA estimated as baseline closures at proposal. However, EPA disagrees that EPA should have accounted for these employment effects. The purpose of the cost and economic impact analysis is to assess the impact of the rule. Any employment effects in baseline closure facilities would not result from the rule, but would result from significant economic/financial weakness, and

Essay 36 326likelihood of closure, among the baseline closure f acilities, independent of the requireme nts of the 316(b) existing facilities rules.

Failure to Recognize that Proposal Option 3 Would Result in the Least Adverse Impact on Employment One commenter (Riverkeeper) argued that EPA should have (1) accounted for the findings at proposal that Option 3 (all cooli ng towers) would have the least adverse impact of employment and could boost the economy in the near-term, and (2) relied on t hose findings in selecting “all cooling towers” as the basis for the regulation. As described above, EPA views the employment effects analysis undertaken at proposal, and now for the final rule, as involving considerable uncertainties. Moreover, regardless of the methodology, EPA conclude d that the existing facilities rule will not have a substantial impact on employment – positive or negative – and does not consider the rule’s potential employment or total economic effects a key factor in defining the final rule. Finally, EPA notes th at it did not find employment e ffects to be dispositive in its decision to reject closed-cycle cooling on a natio nal basis as BTA. Rather, EPA rejected closedcycle cooling based on three factors: land availab ility, air emissions, and remaining useful life. See the final preamble for additional information.

Arguments Supporting the Existing Facilities Rule Based on Potential Employment Requirements As described above, EPA assesses that the final ru le could have a range of employment effects – overall positive or overall negati ve – and with a varying profile over time; however, none of the analyses undertaken, or information provided by commenters indicate th ese effects would be substantial.

Essay 36 327

### Essay 37: Adverse Impacts on National, State, and Local Economies

The commenters expressed a range of concerns re garding the potential a dverse impact of the 316(b) regulation on the overall eco nomy, at the national, state, and local levels. Commenters also argue that this re gulation is likely to impede economic recovery both at the national level and in the individual States represented by the commenters. Commenters’ arguments include:

 Given that the current nationwide recession fo rced many people out of jobs and many companies, and state and local governments into financial distress, EPA must ensure that new regulations are “thoroughl y necessary, justified, and pr oduce maximum net benefits” for each regulated facility. These commenters believe that the 316(b) regulation does not yet meet these standards.

 High compliance costs of the 316(b) regulati on will lead to premature retirements of generating facilities, reduced electricity ava ilability, higher costs of manufactured goods, and higher electricity costs to consumers at a time when they can least afford them without providing corresponding benefits.

 The 316(b) regulation by itself and combined with other recently promulgated and currently pending regulations, wi ll slow economic recovery.

 The very high cost of cooling towers woul d lead to higher electricity rates for State residents and present reliability concerns.

EPA acknowledges commenters’ statements about th e state of the U.S. economy overall and of certain States, in particular. However, EPA di sagrees that the 316(b) regulation will adversely affect the national and State economies. EPA notes that some of these comments were made specifically in the context of the higher cost and operating impact of a regulation that would require facilities to meet BTA based on entrainm ent mortality technology – i.e., cooling towers. The final rule establishes a BTA standard for impingement mortality based on the performance of modified traveling scr eens with a fish return system. The ru le provides seven alternatives for complying with the standard, only one of whic h is cooling towers (for details on these requirements, please see the preamble for the final rule). Further, the final rule does not establish a BTA standard for entrainment that requires inst allation of cooling towe rs or achievement of equivalent flow reductions. Therefore, to the extent that commenters’ concerns about the potential effects of the final rule on the nationa l, State and local economie s, including effects on the economic recovery and electricity rates, are premised on the assumption of a nationallymandated requirement for cooling towers, the assumption is in error.

The BTA entrainment standard for the final rule requires the development of BTA entrainment controls for each facility subject to the rule in a site-specific permitting proceeding. In that proceeding, the Director must c onsider specified factors in de termining required controls. The final rule specifies a range of information that must be submitted and considered by the Director as part of the NPDES permit application. Am ong items and where applicable, this includes entrainment performance studies, a comprehensiv e technical feasibility and cost evaluation

Essay 37 328study, a benefits evaluation study, and a non-wate r quality environmental and other impacts assessment. See additional discussion in section VI.I of the final preamble.

EPA estimated nationwide total annual costs for the final rule accounting for facilities’ compliance costs to meet the BTA standards. This includes costs to comply with the IM performance standards and the st udy/reporting requirements associ ated with the site-specific permitting framework established for entrainment. While EPA acknowledges that some facilities will likely incur costs to comply with site-specific entrainment determinations as a result of this framework, EPA could not reliably predict the outc ome of such proceedings, and therefore, the cost of any entrainment control measure a facility might be required to implement. See Essay 14 and 15. Also see Essay 31and Essay 39. The EPA estim ates that the total annual cost of the final rule, including costs of comply ing with the BTA impingement st andard and costs to conduct the required permit application studies and gather and submit the addi tional data and information, is between $275 million and $297 million, depending on th e discount rate. This is extremely small in relation to the total econo my – less than 0.01 percent of GDP in 2012. Accordingly, EPA disagrees that the final rule will impede the economic recovery.

As stated above, the final rule does not establis h a BTA standard for entrainment that requires installation of cooling towers or achievement of equivale nt flow reductions and EPA did not estimate the cost of requiring coo ling towers everywhere for the final rule. However, in the EA report for the final rule, EPA did estimate the co st for requiring entrainment control measures, e.g., cooling towers, at all facilities with 125 m gd or greater (Proposal Option 2), which account for 90 percent of actual flows. The total annualized cost for that option would be approximately $3.6 billion at the three percen t discount rate, which is under 0.03 percent of GDP in 2012 and would not be large enough to advers ely affect the economic recovery.

In addition, EPA does not agree that the final rule will lead to c onsequential early retirements of electric generating capacity. As described in Chap ter 6 of the EA report, EPA found that the final rule will lead to a very modest increase in capac ity retirements – less than 0.1 percent of total baseline capacity at the national level and no more than 0.8 per cent of baseline retired capacity in any North American Electric Reliability Corpora tion (NERC) region, projected to occur in TRE. EPA assesses that these very small retirements ar e inconsequential relative to total national and regional generating capacity. As a result, the final rule will not significantly affect electric supply reliability – both nationally and by NERC region.

Further, EPA also disagrees that the final rule will have a significant adverse impact on electricity rates. As documented in Chapter 4 of the EA report, EPA estimates very small electricity rate increases in general and by consumer group, and very small increases in annual household bills. For the final rule, under an assumption that all compliance costs would be passed through to consumers in electricity ra te increases, EPA estimated that rates would increase by approximately one one-hundredth of a cent per kWh across the United States. On a percentage basis, the estimated rate increases are comparably small, both nationally and by region: the estimated percentage increase in electricity rates averages 0.09 percent nationally, with the largest increase by re gion being only 0.15 percent. EPA concludes that these small increases are reasonable in relation to the Clean Water Act-mandated environmental improvements achieved by this regulation.

Essay 37 329Finally, EPA notes that the final rule does not specify a timeline for compliance with any entrainment requirements that result from the site -specific determination. Instead, the rule gives Permit Directors authority to establish compliance schedules and specific compliance requirements based on identified concerns, if any, over capacity losses and electric supply reliability. Further, this author ity given to Permit Directors to establish compliance schedules and compliance requirements at the local level addresses commenters’ concern that the rule be implemented in a way that will maximize net bene fits to society – both overall and locally. For details, see Essay 22.

Essay 37 330

### Essay 38: Impact on Rural Electric Cooperatives

Multiple commenters argue that this regulation w ould adversely affect rural cooperatives in a disproportionate manner. Commenters’ arguments include:

 Because electric cooperatives are not-for-profi t, they would have to pass all compliance costs directly onto consumer-owners.

 Electric cooperatives, being ru ral, have “fewer consumer s” to which they may pass compliance costs, leading to disproportiona tely higher impacts on electric cooperatives and their customers.

 Businesses that are cooperatives’ electricity consumers will lose competitiveness due to higher electricity prices.

 Communities with already stressed budgets for schools and other public services will be adversely affected as they enact budget cuts in response to increased rates.

 Rural cooperatives may close due to regulat ory requirements, leading to job losses.

EPA does not agree with the comment ers’ arguments on several grounds.

 EPA notes that the commenters provided no substantive informa tion to support their claim that electric cooperatives, as an ow nership category, would incur impacts that are disproportionately greater than that of other ownership cate gories. The arguments are all qualitative and conjectural with respect to how electric cooperatives and their customers might be disproportionately affected by th e final rule. Commenters argue that the business profile of electric cooperatives in terms of a requirement to pass through compliance costs in electricity rates is so mehow different from other categories of ownership in terms of potential for adverse impact. EPA does not agree with this claim. Much of the generating capacity estimated subject to the final rule (61 percent) continues to operate in States with rate-regulated el ectricity generation ma rkets where costs are passed forward in rate increases to electri city customers. Customers of electric cooperatives will experience similar rate effect s to those experienced by the customers of regulated utilities and municipally owned genera tors that incur costs from the final rule: both of these categories of generators will pass forward essentially all compliance costs to their customers. EPA also notes that estim ated rate effects are uniformly quite low by electric power market region.

 Commenters argue that electric cooperatives have “fewer” customers and that this profile again will somehow lead to a disproportiona te adverse impact from the final rule. EPA notes that the scale of comp liance technology requirements and associated costs increase in an approximately proportional manner to th e size of affected ge nerating facilities and presumably the customer base that they serve. As a result, just because electric cooperatives have a smaller generation and customer base does not mean that their customers will incur disproportionately higher rate effects. Some commenters pointed out that electric cooperatives have very low customer density on an area basis, and that this

Essay 38 331operating profile would somehow lead to disp roportionately higher rate effects. This argument might have validity if the final ru le applied requirements to electric power distribution systems. However, the rule applies only to the cooling water intake systems of the generating facilities; customer density on an area basis will have no effect on the costs incurred by those customers.

 Finally, EPA’s analysis finds that electric coope ratives, like parent entities of regulated facilities in other ownership ca tegories, will generally incur low costs relative to their baseline revenue. In addition, EPA’s analysis also finds that cooperatives will not be disproportionately affected in terms of compliance costs compar ed to parent entities of regulated facilities in other ownership cat egories. As reported in Chapter 4 of the Economic Analysis of the Final Section 316(b) Existing Facilities Rule (EA) report, EPA used a cost to revenue analysis at the level of the parent en tity to assess potential cost impacts on owners of electric power facilities that are subject to the final rule. From this analysis, EPA estimates that all electric coop eratives that own regul ated facilities will incur costs of less than 1 per cent of revenue under the final rule. This finding is almost identical to the finding for all other ownershi p categories, with majority of owners of regulated facilities incurring costs of less th an 1 percent of revenue under the final rule. Based on this analysis, EPA does not agree th at electric cooperatives, as an ownership category, will incur costs that are systemati cally higher than those of other ownership categories.

 Some commenters raised the po ssibility that electric coope ratives that own regulated facilities might close because of the final rule. EPA notes that its analysis of the impact of the final rule on generating capacity conducted using the Integrated Planning Model (IPM) found very limited closure effects, with only 23 of the 14,920 generating units modeled in IPM closing under the final rule , which accounts for only 0.1 percent of total national capacity. The vast majority of these generating units are at facilities not owned by cooperatives.

 Given these overall findings, EPA does not agree that co mmenters’ other arguments concerning, for example, impact of public budge ts and public services , are valid in terms of disproportionate adverse impacts.

Essay 38 332

### Essay 39: Reliability and Electricity Rate Impacts

Overview of Comments Commenters expressed concern over the poten tial effects of the re gulation on generating capacity and electric supply reliability, and on electricity rates at the national and State levels. The comments include:

 Commenters pointed to potent ial premature plant retirement s, resulting from the large expenditures otherwise required to comply with the Section 316(b) Existing Facilities Rule, leading to capacity shortfalls, decreased electricity supply and reliability issues. In turn, these effects would lead to high er electricity rates for consumers.

 Some commenters specifically pointed out that the cost of installing cooling towers would be too burdensome for some facilities fo rcing them to retire. Other commenters, to support their reliability and electricity ra tes concerns, cited studies published by the North American Electric Reliability Corpor ation (NERC) and Electric Power Research Institute (EPRI).

 Some commenters stated that it is unrealistic to assume that this rule would not result in any closures, given that one facility they used as an example is likely to shut down.

 Some commenters pointed out that the electric generating facilities subject to the final rule are base-load steam electric genera ting units, which are essential to meeting electricity demand, maintaining adequate rese rve margins, and providing electricity at affordable rates. These commenters pointed ou t that making sure that these units are not adversely affected is essential to meeti ng ever growing electricity demand as the economy recovers from recession.

Riverkeeper, on the other hand, argued that even the most stringent option analyzed in support of the Proposed Section 316(b) Exis ting Facilities Rule – Option 3, which would require closedcycle retrofit for all facilities – would not have adverse reliabili ty effects or result in large electricity rate increases at the national or NERC region level. Even the small estimated capacity retirements, Riverkeeper argued, are likely to be overestimated. Further, Riverkeeper added that, potential reliability effects, if any, under this option, can be mitigated by new energy efficiency, demand side measures, and usage of renewable resources. The absence of plausible electric reliability concerns associated with Option 3, Riverkeeper argued, is another reason that EPA should select Option 3 when promulgating th e Section 316(b) Existing Facilities Rule. Riverkeeper specifically challenged assumptions used in two studies that assessed the reliability effects of a closed-loop cooli ng tower requirement under the 316( b) regulation – (1) the NERC 2010 Special Reliability Scenario Assessment; Re source Adequacy Impacts of Potential U.S. Environmental Regulations and (2) the 2011 Revi ew of the Potential Impacts of Proposed Environmental Regulations on the ERCOT Syst em – and argued that because of these assumptions, the impacts estimated in these studies are overstated.

 Riverkeeper argued that the assumption of no cost-pass-through EPA made in the cost-torevenue analysis conducted at the facility and entity le vel and the assumption of 100

Essay 39 333percent cost pass through EPA made in the el ectricity rate and hous ehold impact analyses are overly conservative and unrealistic.

 Florida Public Service Commission (FPSC) expr essed concerns regarding the impact the section 316(b) regulation will have on electricity rates and consequently, Florida residents and economy. FPSC also presented resu lts of its own electri city rates analysis.

 One commenter suggested that th e final rule should encourag e the operation of units with the lowest cost and lowest emissions in order to minimize the increase in electricity rates.

 Some commenters noted that because there is only a short period is which regulated facilities are expected to install compliance technologies to meet impingement mortality limits, all these facilities, which make up nearly 50 percent of all electricity power facilities in the industry, will be competing for scarce resources during the same time.

 Some commenters argued that because of the dynamics of deregulated wholesale markets, facility closures in those markets wi ll result in higher profits to facilities that will not need to do anything to comply with the 316(b) regulation, and in higher electricity prices to consumers even when there are no environmental improvements in the areas they live in. These “unproductive” co sts, these commenters argued, “represent a diversion of funds that would be better spent on environmental improvements or on reducing costs to already overburdened consumers.”

 EPRI expressed concern that EP A did not assess the impact of changes in electricity rates due to regulation on low income consumers as part of the environmental justice (EJ) analysis.

Still, other commenters urged EPA to consid er alternative complian ce standards for loadfollowing and peaking generating units.

 “...several urban areas were identified where the existing tr ansmission system would not be able to transfer sufficient electricit y during periods of extended downtime.” (EPA 2011a, p. 22208)

 “While BLE is not located in an urban ar ea, it does serve an area that has been transmission-constrained. EPA found that, in some areas, even though excess capacity could be generated by other plants within the area, it may not be enough to replace the capacity lost during the extended downtime.” (EPA 2011a).

General Concerns Regarding Reliability and Electricity Rate Impact EPA acknowledges commenters’ concerns rega rding the potential im pact of the 316(b) regulation on reliability and elec tricity rates. However, as documented in the economic analysis for the final rule, EPA’s analyses found no materi al adverse effect on reliability and electricity rates from the final rule. Accordingly, EPA does not agree with commenters’ claims of adverse impact. Moreover, EPA notes that most of these commenters did not provide specific information to substantiate these concerns – in particular, as the concer ns relate to the 316(b) existing facilities rule. Some commenters cited the fraction of electric power generating capacity subject to the 316(b) regulation as a sign of potentia l reliability issues and large electricity price increases. However, EPA does not agree that th e fraction of generating capacity subject to

Essay 39 334regulatory requirements, by itself, is a meaningful indicator of re liability issues, or of large increases in electricity rates.

First, under the final rule, specifi c regulatory requirements, and associated compliance costs, will vary by facility and depend on baseline characterist ics of a given facility; some facilities will not have to install any complian ce technology. For thos e facilities that install compliance technology, the impingement control performance that is specified by the rule is considerably less expensive, and results in considerably sm aller energy effects, than entrainment control technology (cooling tower), the technology standard on which a number of the commenters based their concerns. In particular, the NERC, EP RI and ERCOT studies thatwere referenced in some of these comments all assume a requirement for installation of clos ed-cycle recirculating systems, which is not established as Best Tec hnology Available under the final rule. In addition, the final rule establishes a structure, informati on requirements, decision criteria, schedule and an overall process for assessing entrainment on a s ite-specific basis that will serve to guide permittees and permitting authorities in implementi ng the rule requirements. To the extent that facilities believe non-water quality impacts such as reliability (i ncluding localized transmission concerns), etc. should be considered in the site-s pecific determinations, th e final rule provides for the opportunity for facilities to provide such info rmation and for the Director to consider it, as appropriate.

Second, the magnitude of electrici ty rate effects will vary by re gion and depend on the cost of compliance technology, the fraction of capacity aff ected by the regulation, and the extent to which regulated facilities in that region will be able to pass their compliance costs through to consumers. Whether and to what extent regulat ed facilities are able to pass their compliance costs to consumers will also affect the magnitude of financial impact on those facilities. As discussed in Chapters 4 and 6 of the Economic Analysis for Section 316 (b) Exiting Facilities Rule (EA) report, EPA found no indication that the final rule will have substantial adverse financial effects on either regulated facilities or th eir parent entities, result in adverse reliability impacts, or lead to significantly higher electric ity rates. While EPA did not conduct its cost and economic impact analyses at the level of the in dividual State, the Agency did perform analyses by NERC region, which is a more appropriate ma rket concept than individual states for understanding potential reliability and electricity rate effects. N one of the analyses, whether at the national level or by NERC region, found a substant ial adverse effect on re liability or rates.

Concerning a potential impact of th e existing facilities rule to not use the lowest production cost and lowest emission generating units, the rule do es nothing to interfere with dispatching the lowest production cost units to meet elec tricity demand. Regional power pools and system operators are expected to continue use of econom ic dispatch. Given the finding of small effect on electric supply reliability and electricity rates, EPA further concludes that the final rule does not alter production costs and dispatch patterns in a way that le ads to higher elec tricity rates.

Potential Capacity Closures Due to the Final Rule Some commenters argued th at EPA estimated no capacity closures at proposal for the existing facilities rule and disagreed w ith this finding. In fact, EPA did estimate and report capacity retirements as part of the cost and economic impact analysis for the proposed and final rules. As discussed in Chapter 6 of the EA report for the fi nal rule, EPA found that the final rule will result

Essay 39 335in some capacity closu res. However, the capac ity retirements estimated for the final rule represent very small shares of total generating capacity in the United States (e.g., 0.1 percent of total generating capacity in 2030 for the analysis of the final rule) and would not result in adverse reliability effects. Further, the small cap acity retirements are likel y to be easily replaced by new capacity.

Given the finding of minimal expected capacity clos ures across the regulated industry due to the final rule, EPA also found the concerns regarding base-load units are not likely to be realized.

Argument that Capacity Closures and Related Reliability and Rate Effects under an All

‐ Cooling Tower Regulation Would be Acceptable Riverkeeper stated that capacity retirements estimated for each of the regulatory options analyzed in support of the Proposed Section 316 (b) Existing Facilities Rule are not nearly enough to cause reliability concerns, given the ve ry small absolute amount and share of total generating capacity they represent. Further, Riverkeeper stated that the outlined compliance schedule provides enough lead time to construct ca pacity required to repl ace any capacity retired under Option 3 (all cooling tower). Riverkeeper fu rther argued that even these small effects are likely overstated because the Integrated Pla nning Model (IPM) platform EPA used for the market model analysis conducted for the proposed rule – IPM V3.02_EISA – reflects out-of-date demand forecasts (from Department of Ener gy’s Annual Energy Outlook for 2008), which are higher than current demand forecasts. Accordin g to Riverkeeper, in DOE’s more current projections – AEO2011 – electric ity demand in 2030 is more than 12 percent below that projected in AEO2008. Therefore, Riverkeeper claimed, less retired capacity would need to be replaced by new cleaner capacity, thereby reducing the overall cost of analyzed options and reliability concerns.

Riverkeeper also cites IPM analyses that it undertook using a more recent IPM platform – IPM V4.10 – which also showed small adverse capacity effects from an all-cooling towers regulatory option.

EPA acknowledges Riverkeeper’s arguments concer ning the IPM platform and capacity impact findings from proposal. For its market model analys is of the final rule, EPA used a more current IPM platform – IPM V4.10_MATS – which reflect s more current electricity demand forecast and includes costs associated with Final Merc ury and Air Toxics Standards (MATS) and CrossState Air Pollution Rule (CSAPR). This platform is also more current than the IPM V4.10 platform that Riverkeeper used in its own analys es. As discussed in Chapter 6 of the EA report, EPA found minimal capacity effects from this analysis.

EPA notes that while it considered closures, reliability, and rate effects in evaluating regulatory options for the final rule, none were disposi tive. See section VI of the final preamble.

Argument that Adverse Capacity Effects are Overstated because of Overly
Conservative Assumptions in the IPM Analysis Riverkeeper noted that retirements are likely overstated in the IPM analysis because EPA assumed that none of the rule’s compliance costs would be passed to consumers, which Riverkeeper argues is an overly conservative a ssumption, and leads to overstatement of adverse

Essay 39 336effects. In response, EPA notes that Riverkee per’s understanding of the IPM analysis is not entirely correct in that to the extent that IPM models purely competitive wholesale markets, it allows for some pass-through of compliance costs. As a result, some regulated facilities may be able to recover some of their compliance costs in the context of IPM analys is. To the extent that some facilities actually operate under a cost of se rvice rate regulation framework, they will likely be able to pass nearly all of their compliance co sts through higher electricity rates. As a result, regulatory impacts as modeled in IPM may be ov erestimated. Regardless, as described above, EPA found minimal adverse capacity impact for the existing facilities rule – in both the analyses at proposal and for the final rule.

As noted above, EPA notes that while it consider ed closures, reliabilit y, and rate effects in evaluating regulatory options for the final rule, none were dispositive. See section VI of the final preamble.

Argument that Overly Conservative Consumptions Regarding Cost Pass

‐ Through Lead to Overstatement of Impacts on Consumers and Overstatement of Impacts on Regulated Facilities Riverkeeper argued that the assumption of no cost pass through EPA made in the cost-to-revenue analysis conducted at the fac ility and entity level, and th e counter-case assumption of 100 percent cost pass-throug h for the electricity rate and househ old impact analyses, are overly conservative and overstate impacts in eith er direction. EPA acknowledges Riverkeeper’s concerns that these assumptions are conservativ e and likely to overstate impacts. However, EPA made these assumptions to avoid understating the potential impact of the existing facilities rule in either direction of effect – that is, for either the potential impact on regulated facilities that would incur compliance cost impacts at the outs et, or for the impact on electricity consumers who would bear any rate increases resulting from the regulation. Given the analytic challenges and uncertainty in accurately assessing the cost incidence of the rule, EPA judges these assumptions as reasonable and appropriate for assessing the rule’s potential impacts on affected parties (see Chapter 3 of the EA document for further discussi on of these cons iderations).

EPA notes that while it considered impacts to the re gulated facilities and their parent entities as well as electricity consumers in evaluating regul atory options for the final rule, neither were dispositive. See section VI of the final rule preamble.

Overall Argument Favoring an All Cooling Tower Regulation Overall, Riverkeeper argues that findings of low adverse impact on ca pacity, electric supply reliability, and electricity rates provide a basi s for EPA to adopt clos ed-cycle recirculating system technology as the technology basis of the final rule (Best Technology Available or BTA). EPA acknowledges Riverkeeper’s statements and presentation of findings from EPA’s analyses. However, as described in the Fe deral Register notice for the fina l rule, and as documented in the TDD and EA reports, EPA based its determinations for the 316(b) existing facilities rule on a range of factors. While EPA considered non-wate r quality and other impacts described above in evaluating all of the regulatory opt ions for the final rule, they were not dispositive. As explained in section VI of the preamble, three factors co llectively support rejecti ng closed-cycle cooling

Essay 39 337systems as a uniformly applicab le BTA for existi ng facilities (except new units). These are land availability, increased air emissions and re maining useful life. Also, see Essay 10.

Potential Impact of Rule on Electricity Consumers EPA acknowledges FPSC’s concern regarding the potenti al impact of the exis ting facilities rule on Florida residents. EPA notes that while FPSC presented resu lts of its electricity rates assessment, it did not provide enough informati on to validate these results. Further, FPSC estimated an average increase in a monthly re sidential bill per $100 m illion in environmental compliance costs. As shown in Table 4-6 of th e EA report, EPA estimates that FRCC, which covers the vast majority of Florida (the entire area east of the Apalachicol a River; areas west of the Apalachicola River are within the SERC Re gion), will incur approximately $32 million in compliance costs under the final rule or $0.14 per MW h of electricity sales. As shown in Table 4-8 of the EA, this cost results in an average annual household bill increase of $1.91 or an average household monthly bill increase of $0.16. Using FPSC’s assumption that a typical residential Florida consumer uses 1.2 MWh of el ectricity per month, the average increase in a monthly household bill would be $0.17. EPA judges th at this small increase in an average monthly bill is reasonable in relation to the Cl ean Water Act mandated environmental protection achieved by this regulation.

Argument that Limited Timeframe for Regulatory Compliance May Lead to Difficulties in Facilities Achieving Compliance with the Rule, with Associated Reliability and Rate Impacts Commenters express concerns that the large number of facilities subject to the Section 316(b) Existing Facilities Rule and the limited number of years for facilities to meet the rule’s impingement mortality limits could lead to challenges in facilities obtaining the capital, materials, and/or labor needed to install compliance technology. As a result, inability to achieve compliance would adversely affect supply reliability a nd rates if facilities are not able to generate electricity. EPA acknowledges these concerns ; however, EPA does not agree with the
commenters.

To address concerns about the compliance schedule in the proposed rule, EPA revised the compliance requirements in the final rule so that the Director is required first to establish entrainment requirements in the final permit. The f acility will then be re quired to comply with the impingement mortality standard as soon as practicable thereafter. In addition, because an entrainment requirement could require controls that take many years to design, finance and construct, the Director may establish interim milestones related to meeting the final requirements to ensure that the facility is making progress. These changes in the compliance timeline in the final rule, including the flexibili ty provided to Permit Directors to adjust compliance schedules and permit application requirements based on loca l considerations, should further reduce any compliance scheduling difficulties or inefficiencies facilities may have anticipated under the proposed rule. See section VIII on implementation in the preamble for more detailed discussion.

Finally, in addition, discussed in the EA, the incrementa l resource requirements of the final rule are relatively small.

Essay 39 338Undesirable Transfers of Income from Consumers to Electricity Generators Commenters argue that s ome electricity genera tors may receive higher rates and profits in deregulated wholesale electricity markets, even if they do not install co mpliance technology as a result of the regulation. EPA acknowledges the commenters’ argument. However, EPA notes that once the Agency promulgates a regulation in a deregulated market , the Agency does not control which facilities will close, which facili ties will incur additional compliance costs, and which will be deemed to already be in compliance because of technologies or practices they have already installed or undertaken. That is the nature of a deregulated market. Therefore, in a deregulated electricity market, it is possible that electricity prices may increase in certain locations as a result of the rule, but on averag e nationally, EPA estimates an average increase of $1.03 per household as a result of the final rule.

Assertion that EPA Assess the Potential Impact of Electricity Rate Increases on Low
Income Consumers EPRI argued that EPA should account for the potent ial impact of regulation-induced increases in electricity rates on low income consumers in th e context of the environmental justice (EJ) analysis for the regulation. EPA acknowledge s EPRI’s concern. However, EPA met the requirements for EJ analysis in accordan ce with Executive Order 12898 on Environmental Justice. Moreover, as discussed in the EBA repor t for the proposed rule and EA report for the final rule, EPA assessed the impact of electri city price effects base d on ‘typical household’ electricity consumption levels independent of household income level, and did not find a substantial impact.

EPA Should Consider Alternative Compliance Standards for Load

‐ Following and Peaking Generating Units EPA has addressed the issue of using capacity utili zation rates as a ba sis for alternative compliance standards in Essay 19. See th at essay for a deta iled discussion.

Essay 39 339

### Essay 45: Market Model Analysis Conducted Using IPM

The Electric Power Research Institute (EPRI) and Riverkeeper commented on various aspects of EPA’s electricity market model analysis using the Integrated Planning Model (IPM).

Commenters’ arguments include:

 Some results appear contradi ctory and/or counterintuitive: EPRI argued that some of the results of EPA’s market model analysis using IPM appear cont radictory, and stated that EPA should better defend or expl ain these counterin tuitive results:

o Electricity prices decrease in several North American Electric Reliability Corporate (NERC) regions despite the cost of regulatory requirements analyzed for the proposed rule. EPRI found it esp ecially counterintuitive because these same NERC regions are projected to have less retired capacity under regulatory options.

o Some generating units avoid closure in th e analysis – i.e., units closing in the baseline scenario but remaining open in th e policy scenario – despite electricity price decreases.

EPRI does not explicitly state that these concerns refer to results reported for the steady-state analysis year of 2028; however, the analysis resu lts to which EPRI referred are for that year. Further, the concept of capacity retirement is relevant only in the context of the steady-state analysis.

 Use of an older IPM platform and pote ntial overstatement of rule impacts: Riverkeeper expressed concern th at EPA’s market model analys is for the proposed rule is based on an older platform – IPM V3.02_EISA – which (1) does not reflect newer air regulations (most notably, the final Cross-St ate Air Pollution Rule (CSAPR) and Mercury Air Toxics Standards (MATS)), (2) incorpor ates an older, pre -recession electricity demand forecast, and (3) does not incorporat e the most current universe of electric generating units. As a result, Riverkeeper argues that EPA’s proposal analysis was not as “accurate as it could have been,” and, more specifically, overstated the potential impacts of the existing facilities rule options, in pa rticular, the previous Option 3 (“all cooling towers”).

Following publication of the proposed rule analyses, Riverkeeper commissioned its own analysis of the 316(b) “all co oling towers” option, using a mo re current IPM platform – IPM V4.10 – which incorporates final CSAP R and MATS, a more recent electricity demand forecast, and an updated universe of generating units. In this analysis, Riverkeeper found lower capacity retirements for the “all cooling towers” option than EPA reported in its analysis at proposal. Ri verkeeper argues that EPA should take these findings into account in d eciding on the final rule.

Essay 45 340EPA acknowledges the comments from both parties, and has responded directly to parts of these comments in its analyses and documentation for th e final rule. Specific responses to EP RI’s and Riverkeeper’s comments concerning the IPM-ba sed market model analysis follow below.

Also, the EPA also would stress that its decision about what na tional standards for impingement and entrainment to promulgate took a variety of factors in addition to th e impacts of different control options, into considera tion. In deciding on its final regul atory option (and in rejecting others), projected impacts from IPM were not a di spositive factor. See section VI.E of the final preamble for additional discussion.

Some Results Concerning Electricity Rates Appear Contradictory and/or
Counterintuitive EPA understands EPRI’s comments that the IPM-ba sed findings of lower electricity rates in some NERC regions for the 316(b) regulatory opti ons may be counterintuitive, and has provided stronger explanation of these results in its documentation for the final rule.

Responding more specifically to EPRI’s commen t regarding decreasing electricity rates in certain regions, EPA emphasizes that the findi ngs of potential increases or decreases in electricity rates are very small for all of the regul atory options analyzed in IPM, and in particular, for the final rule specification. EPA views these small changes – increase or decrease – as being well within the uncertainty range of the IPM analysis system.

Responding specifically to EPRI’s comment regard ing avoided capacity losse s despite electricity rate decreases, EPA observed similarly small retirements of genera ting capacity for the regulatory options and by NERC region. EPA also notes, as did EPRI, that some capacity estimated as a baseline closure in IPM become s an avoided closure under a given regulatory option. This finding would result from differences in complian ce costs across generating units: some units that are closures in the baseline re turn to economic viability in the policy case because they would incur lower or no compliance costs due to some operating characteristic and consequently, will become less expensive to run, compared to other operating units that incur higher compliance costs. To addr ess these counterintuitive find ings, EPA has strengthened its discussion in the economic analys is report for the final rule.

Regarding EPRI’s comments that EPA did not account for electricity rate effects in its environmental justice analysis, or in the employment impact analysis, EPA refers the commenter to EPA’s responses to comments on environmenta l justice (Essays 39 and 73) and employment effects (Essay 36).

Use of an Older IPM Platform and Potential Overstatement of Rule Impacts EPA acknowledges Riverkeeper’s observation that it used an IPM platform for the proposed rule analyses (IPM V3.02_EISA) that is not as current as platforms developed since that time. After the proposed rule analysis, EPA developed the IPM V4.10 platform, which was used in Riverkeeper’s analyses, and later the IPM V 4.10_MATS platform. EPA also acknowledges that using a more current IPM platform might have s hown different regulatory effects. As discussed in Chapter 6 of the Final Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EA), EPA conducted a market model analysis of the final rule using the most current IPM

Essay 45 341platform available at the time of analysis – IP M V4.10_MATS; this platform is updated from the IPM platform – IPM V4.10 – used for Riverkeepe r’s analysis of Option 3. While the IPM V4.10 embeds the Proposed Transport Rule and th e Proposed Toxics Rule, the IPM V4.10_MATS platform embeds both Final CSAPR and MATS. Th e analysis using the more current platform continues to find very small rate and capacity effects. Given th ese findings, EPA continues to conclude that the rate and capacity effects of the final regulatory option are acceptable.

Essay 45 342

### Essay 47: Economic Impacts on Manufacturers

Commenters claim that EPA’s assessment of economic impact on manufacturers fails to appropriately consider a nu mber of adverse impacts.

 EPA did not account for the impact of incr eased electricity rate s on manufacturers.

 Manufacturers face stiff competition from fore ign producers who are not subject to the 316(b) regulation.

o EPA acknowledges no cost pass-through and that costs will be absorbed by facilities.

o Reducing competitiveness of manufacturers will hurt balance of trade and domestic employment.

o EPA concludes foreign trade (really export dependence) is not a significant factor because manufacturers sell only 17 percent of output abroad.

 Manufacturers also face costs from other regulations addressing air emissions from boilers and heaters.

 Manufacturers are uniquely affected because unli ke regulated public utilities, they cannot recover costs; therefore, profit margins will be di rectly affected as will facility’s ability to hire and retain workers.

 Manufacturers are very importa nt to both the local and na tional economies and a closure could have severe negative economic impacts on the local economy.

Additionally, one commenter argued that EPA did not consider the cost or the economic impact for non-manufacturing facilities th at may be affected by the rule if, in fact, the intent of the proposed rule was to regulate these facilities.

A number of commenters argued that EPA did not adequately account for the impact of the existing facilities rule on manuf acturers that face competition from foreign producers, whether in domestic markets or in export markets. Commenters argued specifica lly that EPA did not adequately account for the fact that foreign competitors would not face the rule’s compliance requirements and would therefore gain a competitive advantage over U.S. producers who are subject to the rule. Some commenters stated th at EPA did consider the impact of foreign competition – for example, in assuming no pass-th rough of compliance costs – but did not go far enough in considering the impact of reduced competitiveness on balance of trade and domestic employment. In particular, one commenter argued that EPA did not consider export dependence to be a significant factor because on average, f acilities sell only a certain percentage of their output abroad. In addition, some commenters ar gued that many manufacturers faced compliance costs from other regulations, which again wi ll not affect their competitors abroad.

Essay 47 343The EPA did account very specifically for the impact of compliance co sts on the ability of regulated facilities to compete with other pr oducers, both foreign and domestic, who do not face compliance requirements under the existing facilitie s rule in its assessment of the cost and economic impact on manufacturers. As acknowledge d by commenters, EPA’s analysis of cost pass-through potential accounted for a range of factors – including export dependence and import penetration – in determining that facilities operating in any of the Primary Manufacturing Industries would not likely be able to recove r compliance costs from their customers (for a complete discussion of the cost pass-through anal ysis, see Appendix K of the EA). Given this finding, EPA analyzed the impact of the regula tion on manufacturers assuming that none of the regulated facilities would be able to raise prices to recover co mpliance costs and would have to absorb these costs in their baseline income and cash flow. While EPA’s analysis may reflect overall conditions due generally to competition within the affected industry segments that will not experience a regulation-induced cost increase, there are likely to be instances in which some regulated facilities will be able to recover some costs through price increases. Such instances may occur in niche markets – for example, ba sed on specific product or regional segmentation – in which facilities would have flexibility to incr ease prices. Alternatively, some cost recovery could occur in specific product markets in whic h a substantial share of production would incur regulation-induced cost increases. To the extent that some manufacturers will be able to pass the increase in their costs due to the final rule onto consumers, the assumption that no facilities would be able to increase pric es is conservative and likely to overstate impacts on regulated facilities. Nevertheless, even with this conservative assumption, EPA found no significant adverse impact of the final rule on the sample of surveyed facilities in its economic/financial analysis. EPA’s analysis found that no facilities would close as a re sult of the rule and that only three percent of facilities would encounter financial stress short of closure, i.e., adverse changes in a facility’s financial position that are not threatening to its short- term viability, but may present challenges in obtaining fina ncing, as a result of th e final rule (for deta ils see Chapter 5 of the EA).

With specific regard to the concerns about foreign competition, EPA assumed that facilities would not be able to recover compliance cost s through increased prices . Given no changes in price, EPA concluded that there would be no change and certainly no negative effect on facilities’ competitive position in the global mark et or resulting effects on domestic employment and balance of trade.

EPA recognizes that manufacturers must also co mply with and will incur costs from other regulations. For this reason, EPA conducted a sensitiv ity analysis that accounted for the cost of other regulations that have been recently promul gated, and that could im pose costs on regulated facilities. This analysis found that no facilities would incur seve re impacts as a result of the combination of the final rule and other regula tions (for details see Appendix N of the EA).

With respect to the potential impact on facili ties’ profit margins and related impact on their ability to hire and retain workers, as describe d in the EA document (Chapter 5), EPA performed financial analyses based on deta iled income statement and baseline sheet information from an extensive sample of facilities. This analysis assess ed the impact of compliance costs on facilities’ cash flow and measures of fi nancial performance and condition. As stated above, in these analyses, EPA found that no facilities would close and that only 3 percen t of facilities would encounter financial stress short of closure, i.e., adverse changes in a facility’s financial position

Essay 47 344that are not threatening to its short-term viability, but may present challenges in obtaining financing, as a result of the final rule.

Therefore, EPA does not expect material effect s on facilities’ ability to hire and retain employees. Some commenters pointed to facility cl osure and associated em ployment losses as an outcome of the regulation. Again, as described above and documented in the EA report for the final rule, EPA’s analysis found no facility closur es as a result of the final rule’s compliance requirements.

Some commenters argued th at the cost and economic impact analysis that EPA conducted is flawed because it did not account for the impact of increased electricity rates on manufacturers. Commenters contend that even a rate increase of one percent would have a major effect on manufacturers because of the large amount of elect ricity they purchase. As part of the impact analysis for regulated electric power facilities, EPA estimated potential rate impacts by customer class for each NERC region. This analysis assume d that regulated electri c generating facilities would pass through all of their compliance costs under electricity rate regulation procedures, which may not be the case in all States, and thus may overstate the overall potential rate impact of compliance outlays on electr icity consumers. For industrial customers, which would include regulated manufacturing facilities, EPA estimated an average national in crease of 0.1 percent, with the highest impact, 0.2 percent, in the SERC NERC region. EPA concludes that these very small rate increases, which apply to only the elec tricity component of a manufacturing facility’s production inputs, will have a minimal impact on U.S. manufacturers, regardless of the amount of electricity they purchase.

Finally, EPA disagrees with the as sertion that it did not consider cost and economic impacts to non-manufacturing facilities, i.e., cooling water-dependent faciliti es that responded to the 316(b) industry survey whose principal operations lie in businesses ot her than the electric power industry or the Primary Manufacturing Industrie s. Throughout its cost and economic impact analyses, EPA refers to these additional industries as “Oth er Industries,” but refe rs to facilities in these industries under the broad terminology of manufacturers. In the analyses EPA conducted for manufacturers, EPA considered impacts to bo th facilities in the Primary Manufacturing Industries as well as faciliti es in the Other Industries.

Essay 47 345

### Essay 48: Rule Should Establish Performance Metrics to Track and Validate Public Policy Value of Rule’s Requirements

EPA has complied with the requirements of th e Unfunded Mandates Reform Act. The statute requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and Tribal gov ernments and the private sector. The preamble to the final rule explains EPA assessment of the effects of EPA action and how EPA developed the information used for its assessment. In doi ng so, EPA has followed its traditional approach, relying on EPA standard models for its evaluati ons. EPA did not devel op any new tools for its assessment or new models to test the impact of its regulation going forward given existing resource constraints. Based on the historic perfor mance of its analytical tools, EPA is confident that today’s assessment will appropriately reflect real word outcomes.

Essay 48 346

### Essay 50: Alternative Compliance Responses

Riverkeeper claims that EPA overstated the cost s of complying with any option because EPA did not consider energy efficiency, renewable energy, or repowering as alte rnatives. Riverkeeper points to the fact that complia nce methods were inputs, as opposed to outputs, of the IPM modeling and therefore only options that direct ly met regulatory requirements were considered. Riverkeeper argues that repowering to combined cycle while converting to CT might provide a lower cost option than replacement with new generation, and indicates that this was not considered. Riverkeeper also highlights demand reduction through energy efficiency/demand response and replacing generation with renewable energy that doesn ’t require cooling water, as two additional options that EPA failed to consider. Specifically, Ri verkeeper points to the results of the energy efficiency sensitivity complete d for the Utility MACT, which showed a major reduction in cost.

EPA analyzed compliance responses to regulatory requirements based on detailed information for regulated facilities, includi ng cooling water requirements, baseline cooling water intake systems, and other site and operating information that is important in determining the type, size and operating characteristics of equipment that would be need ed to achieve compliance with the existing facilities rule. The technology needed to achieve compliance unde rlies, in turn, EPA’s estimates of capital and operating costs and other operating effects (e.g., downtime, auxiliary energy requirements, and energy penalty) at the le vel of the regulated facility. These costs and operating effects are also the basis for EPA’s esti mates of the total social cost of the rule.

EPA views this approach as an appropriate and cr edible basis for estimating the cost of the rule. In complying with the rule, facilities may implement designs and/or changes in facility operations that differ from those estimated by EP A, and that may result in lower costs to the facilities and to society. Different approaches could include, for example, conversion of existing generating capacity to natural gas/combined cycle or renewabl e energy-based generation, or use of demand management approaches to offset need for electric generating capacity as part of a comprehensive strategy for regulatory complian ce, as suggested by the commenter. However, whether and how facilities would implement such approaches depends on assessments of facility circumstances, business objectives, and business planning. It is beyond EPA’ s ability to try to account for such considerations in its analyses , given the information currently available. Accordingly, EPA acknowledges that facilities ma y choose less costly approaches than those embedded in its cost estimates for the final rule. In that case, the rule may prove less costly to society than EPA has estimated in its cost analys is. As a result, EPA’s determinations in support of the final rule would only be strengthened as the rule’s benefits would be achieved at lower cost to society.

The EPA also would stress that its decision about what national standards for impingement and entrainment to promulgate took a variety of factor s in addition to the co st of different control options, into consideration. In the case of EP A’s decision to adopt a prescribed national framework for determining entrainment controls on a site-specific basis as its best technology available (BTA) 316(b) standard, cost was not a direct factor in rejecting a single, national technology standard. The EPA did not reject closed-cycle cooling as the sole technology basis

Essay 50 347for the national standard because of its costs. Rather, EPA concluded that land availability, air emissions and the remaining useful plant lif e supported a decision to rely on a case-by-case determination of entrainment controls in a nationally-prescribed process mandating the consideration of thes e and other factors.

Essay 50 348

### Essay 53: Electricity Rate and Reliability Impact to be Considered During
Site

‐ Specific Evaluation

Utility Water Act Group (UWAG) recommended th e site-specific determinations for permit decisions should not only consider benefit and co st information, but also assessments of (1) electricity rate impacts, by consumer group and (2 ) reliability concerns. UW AG stated that these assessments should be made using electricity models specific to a given el ectric power facility’s regional system.

UWAG also requested that EPA remove the phras e “within the immediate area” so it could not be misinterpreted by permit Directors to mean that reliability impacts should only be assessed within the immediate surrounding area of a pow er plant. Instead, UWAG believes permit Directors should assess impacts on a lo cal, state, and regional basis.

The commenter argues that site-specific permit de terminations should consider electricity rate effects and reliability concerns, in addition to more traditional benefit-cost considerations. EPA acknowledges the commenter’s recommendation and poi nts out that the final rule provides that the Permit Director may consider a range of f actors in determining best technology available (BTA) on a site-specific basis, which may in clude entrainment control technology. Section 122.21(r)(12), Non-Water Quality Environmenta l and Other Impacts Assessment, of the preamble discusses the minimum information that f acilities will have to submit, which includes a reliability assessment. The phras e “within the immediate area” no l onger appears in the preamble at § 122.21(r)(12), Non-Water Quality Environmen tal and Other Impacts Assessment and EPA does not specify the geographic limits for this re liability assessment in the final rule. Instead, EPA gives latitude to Permit Directors to interp ret reliability issues within an appropriately defined region. Permit Directors may account for su ch considerations as the market region in which generators operate, the exte nt of generation reserve margin s at the time of installation downtime, and presence of any transmission cons traints that could limit the ability of other generators to offset reductions in ge nerating capacity due to the final rule.

In addition, facilities can submit additional information for the Director’s review, which may include electricity rate assessment and any other information that f acilities view as important to submit. Facilities can also submit this information as part of the comprehensive technical feasibility and cost evaluation study disc ussed in § 122.21(r)(10) of the preamble.

Concerning the commenter’s recommendation that el ectricity market models specific to a given region should be used as the basis for information on electricity rates and reliability, EPA disagrees with the should element of this comment. If facilities decide that such assessments are appropriate for developing electric ity rates and reliability inform ation, then nothing in the final regulation precludes the facilities from using su ch models and submitting the information to the Permit Director. However, EPA does not agree th at such methods for electricity rate and reliability should be a requirement or expectation for developing and submitting such information as part of permit submissions.

Essay 53 349

### Essay 55: Facility

‐ Level Compliance Costs, Social Costs, and Costs to be Submitted as Part of the Comprehensive Technical Feasibility and Cost Evaluation Study

Many commenters asked EPA to clarify the relati onship between facility-level compliance costs and social costs and specify the costs each of these concepts accounts for. Further, commenters asked EPA to be more specific on what cost information facilities have to submit to Permit Directors for review; some of these comments made suggestions about what information EPA may consider requiring. These comments include the following:

 EPA should explicitly state wh at the facility-level complia nce costs and social costs include and how these two co st concepts are related.

 EPA should clarify what cost information must be considered by permitting authorities in evaluating the comprehensive technical feas ibility and cost ev aluation study required under the Existing Facilities Ru le. Some of these commenters noted that while EPA did state that social costs, re quired for submission, should in clude outages, downtime, and other impacts to facility revenue, the Agen cy should be more specific regarding what these categories should include.

 EPA should provide Permit Directors with flex ibility in identifying what social costs should include to account for regional differences in economic conditions. This suggestion is based on the assumption that be cause of regional differences, different regulatory impacts may consti tute cost to society.

 EPA should explicitly state that social costs account for fogging, icing, salt drift, and visibility impacts, which are commonly r ecognized public welfar e impacts of closedcycle cooling system s (Santee Cooper).

 The social costs estimated for the proposed rule (Proposal Option 1) include only costs associated with the impingement requirement and do not account for entrainment costs that will be required (Wes tern Business Roundtable).

 EPA should include production losses associ ated with both manufacturing facility retirements as the result of the Proposed Section 316(b) Existing Facilities Rule and temporary facility shut downs required to install compliance technology, in social costs (American Chemistry Council (ACC)). ACC also expressed concern regarding high costs of manufacturing facility dow ntime, which EPA did not in clude in the social costs estimate.

 EPA should account for the social cost of grid reliability effects ar ising from electric power facility retirements and technol ogy installation downtim e (Utility Water Act Group (UWAG) and Edison Electric Institute (E EI)). UWAG and EEI further noted that

Essay 55 350according to studies conducted by NERA a nd EPRI, these reliability effects are substantial.

EPA clarified the re lationship between facility-l evel compliance costs and social costs in the Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EA) report by listing the specific cost components c overed under each cost concept that EPA used in its assessment. The Agency also provided a more detailed expl anation of differences in the methodologies used to estimate facility-level compliance costs and social costs. Further, EPA provided more detail on the cost information that facilities will submit as part of the technical feasibility and cost evaluation study in the preamble to the Final Rule and in the Information Collection Request for Cooling Water Intake Structures at Existing Fac ilities (Final Rule ICR). This information is available to guide facility representatives and Permit Directors in preparing and reviewing permit applications. Following promulgation of the rule , through outreach activities, EPA will consider the need for providing State Directors and faciliti es with any more detailed guidance on what cost information should be submitted for review and how certain cost may be calculated.

The final rule accommodates commenters’ recommendation to provide Permit Directors with flexibility to account for regional differences in economic conditions in identifying and evaluating the specific social co st components as part of the technical feasibility and cost evaluation study. EPA notes that in discussi ng the permit application requirement at § 122.21(r)(10) of the rule, the rule explains the minimum information that facilities will be required to submit as part of the technical f easibility and cost evaluation study. In addition, facilities may always submit additional informati on for the Director’s review. That information could include data on other cost components that facilitie s consider to be a cost to society and view as important for the Director to consider in the permitting decision.

Regarding Santee Cooper’s recommendation to explic itly state that social costs of closed-cycle cooling systems account for fogging, icing, salt drift, and visibility impacts, the Agency understands that operation of closed-cycle coo ling systems may indeed have these kinds of impacts depending on local circumstances. However, EPA notes that it did not adopt closedcycle cooling as the basis for the BTA entrainment standard for existing facilities under the final rule, and the ancillary effects that may be associated with installation of a closed-cycle recirculating cycle may not necessarily be associated with othe r entrainment reduction technologies. Some existing faci lities may install closed-cyc le cooling systems to meet entrainment reduction requirements established on a site-specific basis or to comply with the new unit provision of the final rule. However, EPA cannot predict with confidence the outcome of the site-specific BTA entrainment standard-set ting proceedings, and therefore, which facilities will undertake such installations. Consequently, th e EPA did not specifically identify these as factors to be considered by the Director in site-speci fic determinations. The final rule, however, does not preclude any facility fr om including in its determination of social costs the elements identified above or other elements as reflecting so cial costs associated wi th closed-cycle cooling or another entrainment reduction technology. EP A notes that facilities can submit this information for the Director’s review as part of the comprehensive technical feasibility and cost evaluation study if facilities consid er these impacts to be of con cern in their area and view the information as important to submit.

Essay 55 351The social costs of the final rule, which closely align with Option 1 as analyzed for the proposed rule, appropriately include onl y direct technology costs asso ciated with the impingement requirement and do not account fo r possible entrainment control t echnology costs for facilities for which entrainment BTA requirements will be established on a site-specific basis. As discussed in the preamble and in Essays 14 and 37, EPA did not estimate costs for entrainment controls under the final rule because the final ru le does not establish a nationally applicable BTA for entrainment, but rather a framework for de termining BTA for entrainment on a site-specific basis. As such, EPA cannot reliably predict the outcome of the site-specific BTA entrainment determinations. EPA did, however, estimate the co st for requiring entrainment control measures, e.g., cooling towers, at all regulated facilities with 125 mgd or greater (Proposal Option 2), which account for 90 percent of actual flows. The total annualized cost for that option would be approximately $3.6 billion at the three percent di scount rate, which is und er 0.03 percent of GDP in 2012 (see Essay 37).

For a response to comments regarding downtime for manufacturers to install technologies to comply with today’s final rule, see Essay 35.

In terms of potential facility cl osures, as discussed in Chapter 5 of the EA report, EPA found that no regulated manufacturing facility will close because of the final rule. Therefore, the social cost of production lost due to fac ility retirements is zero.

The EPA concluded that any social costs potentially associated with the reliability effects from temporary and permanent shut downs of elect ric power generating facilities would not be significant for the following reasons. First, the EP A notes that its estimate of social cost did include the cost of downtime to society, which is the increase in electric ity production costs from generators needing to supply th e electricity otherwise produced by units that have temporarily shut down to install compliance technologies. In addition, where EPA’s analysis found that capacity would be retired because of the rule, EP A assigned a social cost to this capacity loss based, again, on the differential cost of generatin g the replacement electricity from alternative generating capacity. However, as discussed in Ch apters 4 and 6 of the EA report, EPA found that the final rule would not result in significant capacity losses either at the national level or at the level of the North American El ectric Reliability Corporation (NERC) region. As a result, EPA concluded that the final rule w ould not result in adverse reliabili ty effects. Finally, EPA would note that the cited NERA and EPRI studies asse ssed capacity and reliability impacts in the context of a requirement for closed-cycle co oling installation and operation, which is not a required compliance technology for exis ting units at existing facilities.

Essay 55 352

### Essay 58: EPA’s Consultation and Stakeholder Outreach

Several commenters stated that EPA has faile d to comply with Ex ecutive Order 13132 with regards to Federalism. Specifically, commenters cl aim that EPA did not adequately consult with state agencies in developing the rule. One comme nter stated that the Executive Order promotes localized policymaking. Commenters also requeste d that EPA document its compliance with this Executive Order.

Other commenters stated that this rule is important to them and can have far-reaching effects; as a result, these commenters encouraged EPA to maintain an open dialogue with stakeholders (e.g., industry, state regula tors, etc.) throughout the rulemaking process.

First, for the reasons explained in Section XI. D. of the preamble and in Chapter 12 of the EA, EPA determined this final rule does not have federalism implications. Therefore, EO 13132 does not apply to this final rule.

Nevertheless, EPA has actively engaged the states in developing the final ru le. As stated in the preamble, EPA has conducted significant consulta tion and stakeholder ou treach activities during the development of the final rule. EPA also disagr ees that it did not engage states “early in the process,” as states have been active participants in the 316( b) rulemaking process since 2000 with the Phase I new facility ru le. Many states have actively pa rticipated throughout the several phases of rulemaking. In particular, given that the final rule addresses facilities that had been previously regulated by the Phase II and Phase II I rules, states have been provided with ample opportunity to particip ate in the process.

In addition to collection and consideration of the states’ comments, EPA has also conducted outreach by staging symposia, periodic calls with states, and other activities where EPA sought the input from local, state and tr ibal governments. As noted in s ection XI (D)(1)(c) Summary of State, Local, and Tribal Government Input of the preamble, EPA has conducted several conference calls with the Association of Cl ean Water Administrators (ACWA), including numerous states; and small busine ss representatives, including so me local government officials. EPA also combined its efforts and collected input from state and local government entities during development of the proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, to which many of the same facilities are subject, as today’s final ru le; see 78 FR 34530 (June 7, 2013) for more information. State and local officials attended numerous si te visits with EPA’s staff, en abling EPA to gather their input; see DCNs 10-6510, 10-6518, 10-6520, 10-6521, 10-6523 and 10-6524. EPA also responded to requests for information from multiple state a nd local governments. In addition, EPA attended conferences and participated in workgroups (such as NARUC’s 2013 Winter Committee Meetings) where additional information about state and local government interests was presented.

EPA also disagrees that it has not considered in put from facilities that are owned by state and local governmental entities. As noted above, these facilities have particip ated in the rulemaking process for some time, including comments submi tted by the commenter itself under the Phase I,

Essay 58 353II, and III rules. Government-owned genera tors have submitted comments throughout the process as well; see, for example, comments from the City of Orrville Department of Public Utilities in the Phase I rule and the Lansing Board of Power and Light in the Phase II rule. EPA also conducted site visits to two municipally- owned electric generato rs; see DCNs 10-6523 and 10-6524.

EPA also notes that the final rule embodies th e principles of the Executive Order by delegating significant decision-making to the Director, who in many instances is the State permitting authority. For example, entrainment requirements are determined entirely on a site-specific basis by the state permitting authority; this is in co mplete agreement with section 3(d) of EO 13132. For impingement requirements, as noted in the preamble, EPA is promulgating a national performance standard, but has provided multiple co mpliance alternatives, in effect allowing state and local entities to determine the best path to comply.

Essay 58 354

### Essay 59: Executive Orders 12866: Regulatory Planning and Review and 13563: Improving Regulation and Regulatory Review

Many commenters stated that EPA failed to comply with Executive Orders (EOs) 12866: Regulatory Planning and Revi ew and 13563: Improving Regula tion and Regulatory Review. These comments include the following:

 One commenter stated that EPA violated EO 13563 by failing to present the time profile of social costs for Option 4 analyzed in support of Proposed Section 316(b) Existing Facilities Rule.

 Some commenters stated that EPA failed to quantify the e ffect on employment and job creation required under the Executive Order 13563: Improving Regulation and Regulatory Review. Some of these commenters conducted their own analysis of employment effects and presented analysis resu lts as part of their comments. Further, the United States Chamber of Commerce noted th at in order to produce a better informed regulatory result and provide the public with sufficient information to comment effectively, the employment impact analys is, among other things, must account for construction effects of modify ing existing facilities, increas ed electricity rates, early facility retirements, and regional changes in employment distribution.

 Some commenters stated that EP A failed to explain how benefits justify costs, as required under EO 13563, given that costs significantly exceed benefits under all options analyzed in support of the Proposed Section 316(b) Existing F acilities Rule.

 Eastman Chemical urged EPA to carefully c onsider the need for and the cost of the Section 316(b) Existing Facilities Rule given that the U.S. economy is barely recovering from the biggest economic downturn since the Great Depression, which is what the President tried to encourage policymakers to do by issuing EO 13563.

 Electric Power Research Institute (EPRI) not ed that out of 12 requirements of the Executive Order 12866, EPA addressed only one – the benefit-cost comparisons. Some commenters stated that EPA must publish a complete EO 13653 review addressing all issues addressed by that EO, including, aside from employment eff ects (discussed above), efficacy metrics (i.e., metrics that the Ag ency and the public may use to judge and determine the CWIS Rule’s burden and e ffectiveness), economic development, and information on quality certification. Regardi ng quality certification, the U.S. Chamber of Commerce specifically stated that EPA should have “evalua ted, addressed and disclosed to the public a comprehensive Information Quality Act (“IQA”) analysis as part of its EO 13563 review.” Unless EPA corroborates the qual ity of its information, the United States Chamber of Commerce continued, “the sufficiency of its scie nce and statistics, and hence the integrity of its regulatory choices, are in doubt.”

 Some commenters stated that EPA failed to comply with EO 13563 because the Agency did not assess the cumulative impact of all recently proposed and currently pending

Essay 59 355regulations affecting the elec tric power industry. Some of these commenters urged EPA to conduct cumulative costs and benefits analysis of these regulations, including assessment of reliability effects, requ ired under EO 13563. Midw est Generation, Edison Mission Energy, LLC (EME) urged EPA to keep all goals of the EO 13563 in mind when developing the Final Section 316(b) Existing Facilities Ru le, including “coordination, simplification, and harmonization.”

 Alcoa pointed out that the Section 316(b) Existing Facilities Rule is too prescriptive and instead of setting performance objectives, as required under the EO 13563, it sets out specific ways to comply with the rule. Further, Alcoa continued, the rule sets inappropriate standards given that the compliance responses required by the rule were developed based on the information on electr ic power facilities but also apply to manufacturers.

EPA complied with Executive Order 12866 and 13563. See section XI.A of the final preamble and associated analysis in Chapter 12 of the EA.

EPA also complied with requirements in the Data Quality Act and EPA’s Information Quality Guidelines. For example, EPA performed its an alysis supporting this ru lemaking within EPA’s data quality system. The commenter is incorr ect that EPA must develop a comprehensive analysis that describes EPA’s data qualit y. EPA discusses this throughout the documents supporting the rulemaking. Further, the data a nd analysis underlying this rulemaking have undergone multiple levels of review includi ng many opportunities for public comment and interagency review. Finally, wh ere commenters have provided corrections to the data, as appropriate, EPA updated it.

Comments on the Relationship between Social Cost and Benefits and EPA’s Selection of and Support for the Proposed Rule EPA acknowledges commenters’ input concerning the relationship between social cost and benefits. The Agency has carefully considered both the costs of and the need for the section 316(b) Existing Facilities Rule. EPA judges that the compliance costs and resulting cost and economic impacts estimated for the final rule and detailed in the EA report are reasonable in relation to the Clean Water Act-requi rement to implement section 316(b).

Failure to Provide Time Profile of Social Costs and Benefits EPA disagrees with commenter’s statement that the Agency did not present a time profile of social costs and benefits of Option 4. The Agency presented that information in Chapter 13 of the Economic and Benefits Analysis for the Pr oposed Section 316(b) Ex isting Facilities Rule (EBA) report. EPA also presented the updated time profile s of social costs and benefits for all three analyzed options in Chapter 8 of the Fina l Economic Analysis for the Final Section 316(b) Existing Facilities Rule (EA) report.

Failure to Explain How Benefits Justify Costs EPA disagrees with commenter’s statements that the Agency did not explain how the benefits of this rule justify its costs. See section V.H in the final preamble. Also see section X of the final

Essay 59 356preamble for a detailed discussion of the benefits analysis and s ection IX for a discussion of the cost and economic impact analysis.

Failure to Quantify the Effect on Employment EPA disagrees with commenter’s statements that the Agency did not quantify the effect of the proposed rule on employment and job creati on as required under Executive Order 13563: Improving Regulation and Regul atory Review. For proposal, EPA presented quantitative analysis of employment effects in Chapter 10 of the Economic and Benefits Analysis for the Proposed Section 316(b) Existi ng Facilities Rule (EBA) report.

For the final rule, EPA approached its analysis of employment effects differently than for the proposed rule. Specifically, unlike for the proposed rule, for the final rule, EPA did not estimate quantitative employment impacts but instea d included only a qualitative discussion. In considering an approach for the final rule, th e Agency concluded that the methods used at proposal were not sufficiently robust, largely beca use they relied on an input-output analysis that assumed fixed production relationships and used hi storical data to estimate the labor and other inputs required for compliance with the rule. Si nce publication of the proposed rule, EPA has concluded that the input-output analysis-based approach is inappropriate for assessing the employment impacts of national-le vel regulations. Input-output models are static, do not include prices, and assume the supply of all inputs is in exhaustible. They do not m odel a wide variety of adjustments that are expected to occur over ti me, such as changes in production processes, technology or trade patterns. 58

After reviewing the public comments EPA receive d on the proposed rule, the Agency concludes that the commenters have not identified any spec ific improvements to the employment analysis of the proposed rule. EPA acknowledges some co mmenters’ submissions of an employment effects analysis. However, because the commente rs did not describe the methodology they used to generate these estimates, EPA was not able to compare the approaches and assess whether any changes to the analysis the Ag ency conducted were warranted.

The final rule EA includes a qualitative discussi on describing potential adjustments in the labor market that may follow the rulemaking. For th e final rule, EPA sought methods that would circumvent the shortcomings of the methodol ogy used for the proposed rule. However, as discussed in Chapter 9 of the EA report, becaus e of the complexity of factors through which an environmental regulation may affect employme nt, the myriad uncertainties in assessing a regulation’s economy-wide, long-te rm employment effects, EP A conducted only a qualitative assessment of employment effects for the final rule. EPA does not currently have a sufficiently robust methodology to assess the impact of all possible changes in employment and quantify those changes. Moreover, based on the avai lable evidence from several peer-reviewed econometric studies that are app licable to net employment effect s in the regulated sectors (see Chapter 9 of the EA) and because closed-cycle cooling was rejected as national BTA for entrainment, EPA expects that employment impa cts of today’s rule are not likely to be substantial. In EPA’s view, the qualitative employm ent effects analysis undertaken for the final

58 For a discussion of input-output models see Chapter 8 of the EPA Handbook on the Benefits, Costs, and Impacts of Land Cleanup and Reuse (2011).

Essay 59 357rule is appropriate to p roduce an informed regulatory result and th erefore satisfies the requirements of the Executive Order 13563: Im proving Regulation and Regulatory Review.

EPA Should Consider the Current State of the U.S. Economy EPA considered the costs of the rule and rela ted possible impacts of these costs on the U.S. economy. See Essay 37.

Failure to Consider the Costs and Effects of Other Rules EPA disagrees; see Essay 29.

Need to Assess Reliability Effects EPA addresses reliability effects in Essay 45. EPA used the most up-to-date IPM platform available at the time EPA conducted the IPM analysis for the final rule, so all relevant final rules are taken into account in the analysis. EPA cannot incorporate into its analyses, including its IPM analysis, rules that have not been finalized because it would be impossible to predict with certainty in advance what the final rule will actually be.

Need for Performance Metrics Pursuant to EO 13563 See Essay 48. Also, the final rule requires da ta monitoring and reportin g with precisely the objective of understanding the rule’s effectivenes s – at the level of th e individual regulated facility. Permit Directors will collect biological characterization and other performance-related data for the initial post-promulgation permit, and then with each successive permit renewal. Permit Directors will use this information to eval uate the performance of compliance approaches and to adjust permit requirements at the time of permit renewal.

Rule Does Not Set Performance Objectives EPA disagrees. See Essays 10 and 14.

Essay 59 358

### Essay 60: Other Federal Statutes

One commenter indicated that EPA has a duty unde r a number of Federal statutes to protect and conserve wildlife, and to cooperate with ot her Federal agencies in the protection and conservation of wildlife. In th is connection, the commenter point ed to a number of statutes, including the National Environmental Protection Act, the Endangered Species Act (ESA), the Fish and Wildlife Coordination Act, the Bald an d Golden Eagle Protection Act, the Migratory Bird Treaty Act, the Migratory Bird Conservation Act, the Mari ne Mammal Protection Act, the Wilderness Act, the Coastal Zone Management Act (CZMA), the Magnuson-Stevens Fishery Conservation and Management Reauthorizati on Act of 2006 (Magnuson-Stevens), Federal Land Policy and Management Act, and the National Fo rest Management Act. The commenter states that EPA could not promulgate th e final 316(b) rule without mee ting its particular duties under these acts.

EPA notes that the commenter’s statement was an overarching statement that covered a broad list of possibly applicable statutes and did not include any specific concerns, signaled by details or other information. EPA’s rule comp lies with these many statutes and furthers their objectives. Furthermore, with respect to these statutes generally, EPA’s final rule ensures broad cooperation between EPA, State permitting authorities and othe r Federal agencies to protect and conserve wildlife by establishing a permitting process that w ill ensure full ventilation of these wildlife conservation issues. In the case of EPA’s duties under ESA, as explained in detail in DCN 12­ 4543, EPA has consulted with the U.S. Fish a nd Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (colle ctively, “the Services”) under s ection 7 of the ESA on today’s final rule. As to the other statutes, the contours of the final rule reflect EPA’s efforts to ensure full coordination and cooperation with other Federal agencies exercising responsibilities under these statutes.

The final rule requires the Director to estab lish impingement and entrainment controls in a facility’s NPDES permit, based on the BTA standa rds promulgated today. As explained in detail elsewhere, the Director determines these permit conditions in a structured setting in which the permit application requires the pr ovision of detailed informati on characterizing the biological community in the vicinity of cooling water intake structures. This information must identify all Federally-listed threatened and endangered species and/or designa ted critical habitat that are or may be present in the action area. The rule requires that the Director must transmit the application to the appropriat e Field Office of the FWS and/or Regional Office of NMFs upon receipt as well as, among other things, subsequen tly providing them copies of any draft permit. The information sharing provisions of this rule and the opportunity for the Services to make suggestions prior to the NPDES permitting d ecision will facilitate the FWS and NOAA’s implementation not just of the ESA but also of many of the statutes liste d above (e.g., the Fish and Wildlife Coordination Act, the Bald and Go lden Eagle Protection Act, the Migratory Bird Treaty, the Migratory Bird Cons ervation Act and the Marine Ma mmal Protection Act). EPA’s permit application requirements ensure that FW S and NMFS – and other Federal agencies as well -- will have a broader information base from which to make informed decisions. Thus, the rule provides ample opportunity for the Services to identify concerns related to any specific NPDES 316(b) permit and requirements under other st atutes during the permit issuance process.

Essay 60 359Consequently, the Director will have adequate information before him to develop control measures and monitoring and reporting requirement s that will provide ad equate protections to species. Further, the final rule provides the Director with explicit authority to require additional measures to protect Federall y-listed T&E species and desi gnated critical habitat.

For the final rule, EPA has also complied with its duties under Magnuson-Stevens, as well as the CZMA. Section 305(b)(2) of Magnuson-Stevens re quires that “[e]ach Federal agency shall consult with the Secretary [of Commerce] with respect to a ny action authorized, funded or undertaken, or proposed to be authorized, f unded, or undertaken, by such agency that may adversely affect any essential fi sh habitat identified under the statute]...” 16 U.S.C. § 1855(b)(2). Because the effect of the impl ementation of EPA’s rule through NPDES permits will be to ameliorate current conditions w ith respect to the impingement and entrainment of aquatic organism, EPA’s 316(b) rulemaking will not “advers ely affect” any essen tial fish habitat and consultation was not required. The effects on essential fish habitat from the imposition of restrictions on cooling water intake structures will be beneficial.

EPA similarly concluded that the requirement of the CZMA for a consistency determination for certain Federal agency activities was not implicated by its 316(b) rule. This is because the final rule is not an activity under the Act, as it does not phys ically alter coastal re sources or alter uses of the coastal zone. Further, no commenters spec ifically explained how this rule in any way would affect the coastal zone or be inconsistent with any enforceable policy of any coastal zone management plan. Even if it did in some way ha ve any such effect, which it does not, any such effects will be addressed in the subsequent perm itting proceeding. This a pproach is consistent with the preamble to NOAA’s amendments to th e Part 930 regulations, wh ere NOAA stated that there are circumstances where rulemaking actions are not subject to fede ral consistency review because 1) they “do not authorize activities with co astal effects,” and (2) ev en if they did result in activities with coastal effect s, the activities and coastal e ffects would be addressed in a subsequent consistency review . 71 Fed Reg. 788, 792, 807 (2006). In forty-six states, the State is the permitting authority and will coor dinate with the “State agency” designated to administer the approved coastal zone management program. In th e very few states where the EPA issues the NPDES permit, the EPA will undertake any requir ed CZMA consultation with the appropriate coastal zone management program. EPA’s NDPES permitting regulations specifically require adherence to the CZMA when issuing NPDES pe rmits at 40 C.F.R. § 122.49(d) and prohibits EPA from issuing an NPDES permit unless the app licant certifies that its activity complies with the State’s program or the State concurs with th e certification.

Essay 60 360

### Essay 64: Inter

‐ Agency Review

Multiple commenters raised issues concerning the extent of review and participation by other agencies in developing the proposed rule. In particular, the Loui siana Department of Environmental Quality argued that EPA should enc ourage agencies such as the Army Corps of Engineers, Coast Guard, Occupational Safety an d Health Administration, and Department of Commerce to review the rule, as it will affect th e navigation of waterways, worker safety, and

commerce.
Riverkeeper criticized OMB’s review and partic ipation in development of the proposed rule.

EPA disagrees that it did not seek review and comment from other agencies in developing the proposed rule. Specifically, EPA conducted an in teragency review under OMB pursuant to EOs 12866 and 13563, which provided all interested Federa l agencies with the opportunity to review and comment on the draft regulation. Also, more than 40 state government agencies submitted comments on the proposal and seven additional agencies submitted comments on the NODA.

Regarding OMB’s participation in developing the proposed rule, EPA submitted the proposed and final rule to OMB for review in accord ance with EO 12866. OMB’s participation in the rulemaking process is part of the ordinary proc ess for interagency review, as required by law.

Essay 64 361

### Essay 68: New Capacity

In the Federal Register publication for the pr oposed rule, EPA requested comment on the number of new units and the amount of new capacity construction projected. Several commenters responded to this request with “no comment. ” Riverkeeper responded with a comment on the quantity of capacity that might retire early because of the existing facilit ies rule, and indicated that new capacity additions would offset any capacity losses due to early retirement.

EPA agrees that only a small quantity of gene rating capacity would be expected to retire prematurely because of the existing facilities rule . Comments to this effect are consistent with the results EPA obtained on potential capacity e ffects from its IPM-based electricity market analysis undertaken for the final rule. EPA agrees that any capacity effects due to the final rule will be managed within the electricity supply sy stem without adverse impact on electric supply reliability or electricity rates. EPA views this finding as supportive of the Agency’s determinations regarding requirements of the final rule.

Essay 68 362

### Essay 70: General Comments on Nonuse Benefits

EPA received a number of comments on the is sue of nonuse benefits arising from the impingement and entrainment (I&E) controls und er the regulatory options . This essay responds to those comments. Additional essays respond to specific issues related to the estimation of nonuse benefits.

In comments 2200, 2210, 2192, and others, the Electri c Power Research Institute (EPRI), the Utility Water Act Group (UWAG), PSEG Services Corporation, and others commented on what they considered to be EPA’s reliance on nonuse va lues to justify the costs of the rule, the likelihood that these values are si gnificant, and the application of EPA’s methods to site-specific analyses. For example, two priv ate citizens find EPA’s figures pu zzling, specifically asserting that the broad range of annualized nonuse benefits is unreasonably expansive, and that EPA fails to explain the range. These commenters also cite Data Quality Act (DQA ) and EPA guidelines in questioning the quality of this information.

In comment 2156, the Edison Electric Institute (EEI) finds that nonuse benefits are unlikely to justify the rule’s costs, and calls EPA’s assu mption that the public will perceive enormous nonuse benefits from marginal increases in popula tions of little-known forage fish, a serious error. In comment number 2200, EP RI states that there is a la rge difference between quantified benefits and costs and no descri ption of the record that indicates that nonuse values will be sufficient to make up this difference. EPRI suppos es that the record potentially includes EPA’s habitat basis for estimating nonuse values and break even analysis for the proposed rule, as well as analyses conducted for the proposed 2004 pr omulgated rule (Habitat Replacement Cost, Societal Revealed Preference, the Fisher-R aucher Approximation, and Production Foregone). EPRI claims that currently, none of this “record” is indicative of reliably estimated benefits of a magnitude that exceed the costs of the rule.

In comment 2156, the EEI points to comments by NERA Economic Consulting which state that the key issue is how benefit-cost decisions should be made when there is no reliable information on nonuse benefits. NERA asserts, “... EPA a ppears to rely upon the possibility of nonuse benefits to justify a decision to require impingeme nt controls at all plan ts/facilities, even when the estimated “use” benefits are a small fraction of the estimated soci al costs. If this logic were used by individual permit writers, very expensive entrainment controls (such as cooling towers) could be “justified” on benefit-cost grounds.”

In comment 2192, PSEG Services Corporation points to its 2006 permit re newal application for Salem, stating that nonuse values are not appropriate in most in stances because th e benefits of most organisms lost to entrainment (and impingement) have otherwise been monetized. If nonuse benefits were relevant, it would be ve ry difficult to monetize the benefits in an appropriate and defensible manner. In contra st to EPA’s position that nonuse values are important because most organisms lost do not have a direct use value, PSEG claims to have consistently been able to estimate benefits for all of the organism s entrained through wellestablished trophic transfer methodologies that estimate values for forage organisms by converting the pounds lost to pounds of commerci ally or recreationally important species.

Essay 70 363In comment 2210, UWAG states that EPA appear s to rely upon the possibility of additional nonuse benefits to justify a decision to require im pingement controls at al l plants/facilities, and that it is arbitrary and irrational simply to assume, without empirical evidence, that people will be willing to pay the cost of EPA’s program no matter what it is, pr ovided it amounts to mere pocket change when divided among all the households in the country. UWAG further states that EPA should require that benefit studies in site -specific assessments us e specific criteria to determine the likely significance of nonuse benefits. If these criter ia indicate that nonuse benefits are not likely to be significant, the site-specific assessment s hould not require that they be quantified, citing EPA criteria from earlier rulemaking. UWAG cites Freeman (2003; DCN 12­ 4815) for a review of the literature on nonuse valu es and situations in which nonuse values are likely to be significant when the re source in question is special or uni que and the loss or injury is irreversible (or subject to a prolonged recovery). UWAG conclude s that in most cases involving section 316(b), Freeman’s criteria are not likely to be satisfie d. UWAG also states that nonuse benefits may be negative if undesirable fish ar e affected, with the example of alewife in the Great Lakes, and that EPA does not adequately co nsider the possible ecological costs of cooling
towers.

EPA disagrees with these comments. The preambl e to the final rule fully describes EPA’s reasoning for selecting the best technology available for mini mizing adverse environmental impacts from cooling water intake structures (CWIS). Specifically, EPA first considered the availability and feasibility of various technologies, the cost s (including potential costs to facilities and households), and the economic imp acts associated with th ese technologies. EPA reviewed the efficacy of these technologies in reducing impingement mortality and entrainment. EPA also considered additional factors set ou t in CWA section 304(b), including location, age, size, and type of facility. EPA next considered the non-water quality environmental and other impacts of different technologies on energy produc tion and availability, electricity reliability, and potential adverse environmental effects th at could arise from the use of the different technologies evaluated.

As described in the preamble, as a result of th is thorough evaluation, EPA is establishing a rule that includes a BTA standard for impingement mortality based on modified traveling screens with a fish handling and return system whose pe rformance has been optimized to minimize IM. A facility has several alternatives for compliance. For entrainment, EPA establishes a detailed regulatory framework for the determination of BTA entrainment requirements by the permitting authority on a site-specific basis. EPA identi fied the following specific factors as the key elements in its decision not to prescribe a single technology, closed-cycle cooling as the basis for a national BTA determination: land availability, ai r emissions, and remain ing useful plant life.

The preamble also describes the record and EPA’ s determination that the impingement mortality and entrainment controls will result in benefits that justify the costs of the rule. EPA describes that it was able to generate only a partial estimat e of benefits for the rule. In particular, EPA’s analysis does not fully quantify or monetize certain potentially im portant categories of benefits, such as existence values for threatened and endangered species, secondary and tertiary ecosystem impacts, benthic community impacts, shellfish impacts and th e impacts arising from reductions in thermal discharges that would be a ssociated with closed-cycle cooling. Changes in fish assemblages due to impingement, entrainm ent and thermal effects are also not fully quantified or valued.

Essay 70 364As discussed in the preamble, EPA may consider, but is not required to consider, the costs and benefits associated with various control options. In addition, EP A explains (in section II.C and VI.E of the preamble) why consideration of costs and benefits is appropri ate in the site-specific determinations when establishing entrainment controls. In the site-specific proceeding, the Director is to consider , among other factors, quan tified and qualitative soci al benefits and social costs of available entrainment controls, includ ing ecological benefits and benefits to any threatened or endangered species. The Director may reject otherwise available entrainment controls if the costs of the controls are not ju stified by their associated benefits (taking into account both quantified and non-quan tified benefits), and the other factors discussed in the final rule. In evaluating benefits, the Director should not ignore benef its that cannot be monetized or consider only the I&E reductions that can be co unted. To result in appropriate decisions from society’s standpoint, the assessment of benefits must take into account all benefits, including categories such as recreational, commercial, and other use benefits; bene fits associated with reduced thermal discharges; redu ced losses to threatened and endangered species; altered food webs; benefits accruing non-locally due to migration of fish; nutrient cycling effects; and other nonuse benefits. Merely because it is difficult to put a price tag on those benefits does not mean that they are not valuable. EPA notes that Exec utive Order 13563 recognizes that some benefits are difficult to quantify, and calls for agencies and departments to consid er qualitative benefits.

A national evaluation of benefits, no matter how accurate, wo uld fail to account for the variations in benefits from lo cation to location. On the basis of available information, EPA’s analysis of benefits relied on extrapolating data from existing I&E characterization studies to all facilities in the same region on a flow-weighted ba sis. Differences in species, life stages, and biological abundance across intake lo cations (even within a region) could lead to very different results for a site-specific analysis of a facility as compared to that facility’s share of national costs and benefits, even if the national result s are, on average, accurate. A national assessment tends to mask variations in benefits and costs from different geographica l locations for different waterbodies. For example:

 Some fish species at coastal facilities have bi ological spawning attri butes that differ from those at other locations.

 The proportion of the receiving water withdraw n for cooling could also vary among sites.

 The values that communities place on their resources could vary from site to site.

 One ecological environment might experience large masses of hardier eggs and larvae subject to potential entrainment; another will have fewer but less hardy eggs and larvae susceptible to entrainment. Without detailed study information, it is difficult to ascertain which facility has the greater adverse environmental impact.

The resulting differences in the value of redu ced entrainment—which could be dramatic for some sites—necessarily disappear in a national aggregation of results. The Agency has decided that this masking of variation in benefits furt her supports EPA’s decision to require consideration of the site-specific bene fits of entrainment control technologies in the site-specific process to establish entrainment controls.

Essay 70 365EPA disagrees with PSEG’s assertion that trophic transfer methods are appropriate for estimating the benefits of all entrained orga nisms. Most of the value for forage fish is nonuse because most are not consumed by recreational or commercial species, or caught. The portion of the value that the commenter is estimating by converting the pounds lost to pounds of commercially or recreationally important species is the indirect use value. Therefore, the indirect use value determined through trophic transfer methods ha s no bearing on the magnitude of nonuse value for the remainder of forage fish.

EPA disagrees with UWAG’s asser tion that the Agency assumes th at people are willing to pay no matter what the rule costs, or that it has no empirical evidence of WTP. Focus groups provide evidence that most people have positive WTP fo r reducing fish mortality at CWIS (U.S. EPA forthcoming; DCN 12-4656). EPA also found, as described in the benefits analysis accompanying the final rule, that WTP varied with the amount of fish protected. The preamble to the final rule describes how EPA considered econo mic factors, and that some costs and benefits are difficult to quantify.

EPA acknowledges that in previous rulemaking it established criteria for permittees and permit writers to use in determining whether to mone tize nonuse benefits. These criteria do not change EPA’s decision regarding addressing nonuse benefits in site-specific decision-making for today’s rule. As stated in the preamble, EPA recogni zes the resource limitations faced by permitting authorities, and is committed to working with th e states to support their site-specific permitting decisions. The benefits assessment would typi cally look at a range of potential benefit mechanisms, including increased harvest for comm ercial fisheries, increased use values for recreational fisheries, and nonuse values (existence and bequest va lues). EPA recognizes that the latter may be difficult to quantify or monetize. If appropriate data are av ailable from benefits transfer or conducting stated pref erence studies or other sources th at can be applied to the site being evaluated, these should be used to m onetize nonuse values. Otherwise, nonuse values should be evaluated qualitatively.

EPA disagrees with UWAG’s assumption that nonuse values of reducing I&E losses are trivial. EPA is aware of no research—empirical or otherw ise—that demonstrates that individuals have limited or no existence values for the aquatic resources affected by th e 316(b) regulation.

To the contrary, prior research demonstrates public willingness to pay for similar types of resource improvements to those addressed here (e.g., Johnston et al. 2011; DCN 12-4866; Johnston et al. 2012; DCN 12-4865). Moreover, there are no theoretical n ecessary conditions for the existence of nonuse values. For example, resour ces do not have to be unique to be the source of nonuse WTP. While factors such as uniqueness can affect willi ngness to pay, the significance of nonuse values depends on individual responses to given conditions. Although the EPA recognizes the possibility of low nonuse values in this case, significant no nuse values are also a strong possibility. EPA notes that when a substa ntial fraction of the popul ation holds even small per capita nonuse values, these nonus e values can be very large in the aggregate. As stated by Freeman (2003, p. 138; DCN 12-4815), “If nonuse valu es are large, ignoring them in natural resource policymaking could lead to serious errors and resour ce misallocations.” Both EPA’s own Guidelines for Preparing Economic An alysis and OMB’s Circular A-4, governing regulatory analysis, support the need to asse ss nonuse values (USEPA 2010; DCN 12-5027; USOMB 2003; DCN 12-5043).

Essay 70 366Regarding the effect of the pr esence of undesirable sp ecies on nonuse benefits, EPA agrees that invasive species may represent a disamen ity, although anglers may hold value for some introduced species (e.g., salmon in the Great La kes). EPA disagrees th at the nonuse value of reducing impingement mortality an d entrainment under the rule is negative. EPA notes that: (1) undesirable species represent only a very small fraction of organisms saved under the final rule, and (2) the Agency did not estimate nonuse benef its for the Great Lakes region using a benefit transfer approach because it did not identify a benefit transfer study th at would provide a good match to the fisheries resources a ffected in the Great Lakes region.

Regarding the ecological costs of cooling towers , of the examples of categories that EPA is aware of, the likelihood of the ecological cost is sufficien tly low that EPA has no reason to change its decision about the BTA in today’s rule.

Essay 70 367

### Essay 71: Benefit Categories

EPA received a number of comments on the eco nomic benefit categories associated with impingement mortality and entrainment (IM& E) reduction. This essay responds to those
comments.

Excluded Benefit Categories In comment 2391, Riverkeeper states that EPA’s be nefits calculations in clude only parts of the two direct use categories of benefits from IM&E losses, and an estimate of nonuse values for two regions of the country. With respect to use va lues, Riverkeeper commented that EPA did not estimate the following types of i ndirect-use, marketed-goods bene fits: increases in equipment sales, rental, and repair; bait and tackle sales; consumer choices in st ores and restaurants; property values near the water; and ecotourism. Riverkeeper al so commented that EPA did not estimate direct-use benefits from non-market goods , including increases in rates of participation in recreational fishing, and the improved value of subsistence fishing; and the increased value of, and increased participation in, boating, scuba diving, and near-water recreation based on enjoying observation of fish (or of birds cat ching fish). With respect to nonuse values, Riverkeeper commented that EPA offers a benefi ts transfer estimate of nonuse values for only two of the seven regions of the country, along with what Riverkeeper finds to be a conceptually mistaken (and quantitatively trivial) estimate of the unique value attached to threatened and endangered species. Riverkeeper furt her points to EPA’s original discussion of the limitations of the benefits calculations (“ Original CWIS rule, p.166”).

In comment 1968, the commenter asks why qualitative benefits of recreational fishing were “ten times more “valuable” than the quantifia ble benefits of co mmercial fishing.”

EPA agrees that the estimates of use and nonuse benefits are incomplete, but has done the best job at estimating benefits that it could, given limitations in data, information and tools for estimating benefits. EPA acknowledges that the li st of use values presented by the commenter include potential benef it categories. The difficulty is havi ng enough data on these behaviors and expenditures, and being able to link increased fi shing success (from fish protection at CWIS) to increases in these items. However, EPA does not e xpect that these indirect-use market benefits, had EPA been able to calculate them, would have been significant enough to affect the choice of BTA in today’s rule.

In the absence of complete estimates of nonuse benefits, EPA estimated partial nonuse benefits for the final rule using a benef its transfer approach. This appr oach is still a partial estimate because it concerns only one species in two coastal regions. EPA fully documents these limitations to practical implementation of cost-benefit analysis in the record for the rule, andexplains fully in the preamble how the information from the analysis factored into its decisionmaking.

For example, as described in the preamble to th e final rule in Section VII. Response to Major Comments on the Proposed Rule and Notices of Data Availability (NODAs), EPA considered both monetized and nonmonetized benefits, and has c oncluded that the benefits of the rule justify

Essay 71 368the costs when all categories of benefits of the final 316(b) regulati on are considered. With
respec t to entrainment, the rule authorizes the Di rector to consider costs and benefits on a sitespecific basis. With respect to impingement mortality, the rule provides seven compliance alternatives based on a set of widely used, de monstrated, proven technologies, many of which have been in use for decades and the efficacy of which is well-supported in EPA’s record.

By reducing impingement mortality and entrainment, the final existing facilities rule is likely to increase the number of fish, sh ellfish, and other aquatic orga nisms in affected waterbodies resulting in healthier aquatic environments. In tu rn, this healthier aquatic environment directly improves welfare for individuals us ing the affected aquatic resour ces. It generates use benefits such as increases in the value of recreational and commercial fisheries, or increases in property values, which may reflect increased use values. Reductions in impingement mortality and entrainment also improve welfare for individual s without use of the a ffected resources, and generate nonuse benefits, such as existence of healthier ecosyste ms and resource bequest values.

EPA notes that qualitative benefits, by definition, are not monetized, and so cannot be cardinally compared to monetized benefits. EPA also notes that both recreationa l and commercial fishing benefits were quantified and monetized for the final rule. The relationship between commercial and recreational fishing benef its resulting from environmental improvements depends on many factors including the species affected, the magnit ude of commercial versus recreational harvest (e.g., in some cases only recreati onal harvest is allowed), the pr esence of a commercial fishery (e.g., fish in some waters are below harvesta ble or marketable size), and the market and nonmarket value of the incremental catch. EPA notes that while commercial fishing benefits are based on the market value of incremental catch, recreational fishing bene fits reflect anglers’ willingness to pay for the enhanced fishing experience and depend on both willingness-to-pay for an increased catch rate and angler populations. It is possible for fishing benefits to be only recreational, and for recreational fishing benef its to exceed commercial fishing benefits where both types of fisheries exist. For example, the Ag ency estimated substantiv e recreational benefits and no commercial fishing benef its stemming from the final rule for the Inland region (see Chapters 6 and 7 in the BA).

Economic and Cultural Benefits Commenters stated that America’s fisheries also provide enormous economic and cultural benefit that should be protecte d. For the Great Lakes specificall y, a commenter provided studies indicating that investment in protection yields an even greater return in economic benefits to the region. According to the commenter, once-throug h cooling water withdrawals from the Great Lakes are a key contributor to fish population loss and ecosyst em decline, and allowing the activity to continue is incons istent with the evidence of the economic growth and opportunities of restoration and the spending of hundreds of milli ons of dollars to protect and restore the Great Lakes.

EPA agrees that the nation’s fisheries need and are worth protecting, and th at restoration of the Great Lakes will yield large economic and cultural benefits. EPA has considered these benefits in developing the final rule. For example, as described in the preamble to the final rule, in assessing the benefits of entrainment technology in stallation, the Director would assess the value to society from the reductions in impingement mo rtality and entrainment that would result from

Essay 71 369installation of a closed -cycle cooling system, fine mesh screens, or other impingement and entrainment technologies. All benefits, includi ng monetized, quantified a nd qualitative benefits, should be considered in this assessment.

EPA disagrees that the rule is inconsistent with the protection of economic and cultural resources. The preamble to the final rule descri bes in detail the factors EPA considered in selecting BTA for impingement mortality and entr ainment, which include economic factors, and recognition that all costs and benef its may be difficult to quantify. Further, the final rule does not preclude taking cultural or regi onal site-specific decision-maki ng. The final rule for existing facilities establishes a detailed regulatory framework for determining BTA entrainment requirements by the permitting authority on a site-specific basis. The rule identifies what information must be submitted in the permit application, prescribes procedures that the Director must follow in its decision-making, and factors the Director must consider in determining what entrainment controls will represent the BT A requirements on a site-specific basis.

EPA does not include a specific category of subs istence fishing benefits in the analysis. However, because EPA uses the value of catching an additional fish to value recreational fishing benefits in conjunction with the total increase in noncommercial catch, the benefits to subsistence fishers are included in this estimate . This is despite the fact that EPA does not allocate the total change in recreational (or rather, noncommercial catch ) between subsistence and recreational fishers because da ta on the extent of subsistence fishing are not available. Also, separate willingness to pay (WTP) estimates for ch anges in catch rates for substance fishers are not available in economic literatu re. If WTP for changes in catch rates for subsistence fishers is significantly different from recr eational fishers, the recreatio nal benefits may be over or understated.

EPA also does not include a specific category of cultural benefits in the analysis because separate estimates for this category are not availa ble. Moreover, the current valuation literature advocates the use of total values as opposed to summing separate categor ies. EPA also does not include a specific category of cultural benefits in the analysis because separate estimates for this category are not available. Moreover, the current valuation literature advo cates the use of total values as opposed to summing separate categorie s. Accordingly, EPA used benefit transfer to estimate total WTP (including aes thetic, cultural, and other us e and nonuse values) for reducing fish mortality in the Northeast and Mid-Atlant ic regions, and does not estimate cultural or aesthetic benefits separately. EPA was unabl e to quantify total WTP for reducing IM&E mortality using the benefit transfer for Inland, So uth Atlantic, Gulf of Mexico, and CA regions due to data limitations. EPA’s also used the 316( b) stated preference survey to estimate total WTP for all regions and has included the estimat es in Chapter 11 of the BA for illustration purposes. Estimates based on the 316(b) stated pr eference survey are not included in the costbenefit comparison for the final rule.

Accordingly, EPA estimated total WTP (includi ng aesthetic, cultural, and other use and nonuse values) for reducing fish mortality in the No rtheast and Mid-Atlantic regions, and does not estimate cultural or aesthetic benefits separate ly. EPA was unable to quantify total WTP for reducing IM&E mortality for Inland, South Atlantic, Gulf of Mexico, and CA regions due to data limitations.

Essay 71 370Site Benefits
A commente r states that the rule should make clear that benefits, whether quantitative or qualitative, must be likely to occur at the site in question, that impacts on aquatic life must be more than theoretical, and th e likelihood of the risk should be evaluated based on all the available evidence for the site. Another commente r stated that, in general, greater emphasis needs to be placed on adequately assessing the be nefit side of any cost-benefit analysis - the costs of compliance options will be determined by th e facilities owners in very quantifiable terms of dollars.

EPA disagrees that the benefits ha ve to occur at a particular site to be considered as benefits associated with fish protection at that site. Because many fish migrate, preventing the death of larvae in one location may result in local bene fits only or benefits be ing realized on a much larger geographic scale. EPA disagrees that im pingement mortality and entrainment controls yield theoretical benefits. Howeve r, as noted above, the preamble to the rule describes fully the site-specific decision-making for entr ainment controls under the rule.

EPA agrees with the comment regarding emphasis in cost-benefit analysis. Costs of compliance are typically more readily discernable than the en vironmental benefits, the inclusion of which are often limited by data and the current state of scientific and ec onomic understanding.

Distributional Effects One commenter referred to dubious cost-benefit calculations at admi nistrative agencies, and past comments to EPA in which they noted that agen cies have counted costs imposed on businesses as benefits to the broader economy.

EPA disagrees that it has counted the estimated co sts of the proposed rule as social benefits. Compliance costs, regardless of any stimula ting impacts of construction work on the economy, do not represent benefits. However, the envi ronmental improvements resulting from the installation of compliance techno logies may have indirect econo mic benefits in the form of stimulating business activity such as equipment or bait sales associated with an increase in recreational or commercial fishi ng activities. This related stim ulating effect would represent benefits of the proposed rule, a lthough EPA was not able to quantif y such benefits for the final rule.

Essay 71 371

### Essay 72: Benefits to Threatened and Endangered Species and Endangered Species Act Consultation

EPA received several comments on the benefits of the rule to threatened and endangered (T&E) species. This essay responds to those comments.

Monetized Benefits of Threatened and Endangered Species In comment 2260, New York State Department of Environmental Conservation (NYSDEC) stated that EPA has not appropria tely characterized the social value of reducing the impingement and entrainment of T&E species. Society has al ready indicated that it places a high value on T&E species protection, which is already provi ded by current law. Fines for illegally taking several aquatic organisms commonly impinged by CW IS, and the funding of efforts to restore populations of affected species, ar e reflective of this value and protection. If EPA assessed the nonuse value of all T&E species that are impinge d annually, these alone would provide the cost benefit justification for EPA to select Option 2 or 3 and require closed -cycle cooling or the equivalent as BTA for the national rule.

In comment 2188, National Wildlife Federation (NWF ) states that the protection of Federallylisted species is paramount, and protection of these species cannot be weighed against a costbenefit analysis. Further, with this rule, the cost of protecting these species is low. Therefore, rather than wrestle with difficult to quantify “nonuse” values, EPA should require closed-cycle cooling and ensure that the risks to T& E from power plants are greatly reduced.

EPA agrees that it has not been able to fully mo netize the value of T&E species in the monetized benefits estimates for the rule. As described in the preamble, EPA concluded that the costs of the rule are justified by the benefits, which include s considering the unmonetized benefits, including T&E species. However, as explaine d in the preamble, EPA did not re ject closed-cycle cooling on the basis of costs and benefits. EPA rejected cl osed-cycle cooling as the technology basis for a uniform national BTA entrainment standard ba sed on three factors: land availability, air emissions, and remaining useful plant life.

EPA also notes that its stated preference survey of use and nonuse benefits of reducing impingement mortality and entrainment (IM&E), which it did not incorporate into the costbenefit analysis for the final rule , does not specifically refer to T&E species (in order to be more generally applicable). It is an open question as to whether the su rvey results fully capture these benefits.

Assumptions Regarding Baseline Losses In comment 2391, Riverkeeper disputed the seemi ngly arbitrary percentages of the affected populations attributable to base line impingement and entrainment that EPA used in developing the estimates that it did not include in the overall estimate of benefits ( 0.25 percent or 0.5 percent reduction in the Inland region T& E species; and a 1 percent reduc tion in endangered sea turtle populations), noting that the re sults are dependent on the assu med percentages. Riverkeeper asked why EPA selected these percentages rather than others. Since elsewhere EPA considers a 1

Essay 72 372percent losses for sea turtles, and uses estimates as high as 6.6 percent ba seline losses for winter flounder in the North Atlantic and Mid-Atlantic, Riverkeeper suggests using numbers that fall between the sea turtle and winter flounder loss estimates, such as 2 percent or 4 percent losses of Inland region T&E species. Riverkeep er notes that the fact that species are classified as T&E implies that their numbers are limited, and that a nnual mortality of a few percent due to cooling water intake does not seem impossible.

With respect to the percentages EPA employed in the illustrative estimate of benefits, EPA points out that, for sea turtles, the percentage does not repres ent a change in population but a percentage decrease in the probability of extinction for sea turtles. EPA did not have adequate data to estimate this probability. However, as an illustrative example, EPA used a 1 percent decrease in the probability of extinction over 25 years for sea turtles as an extremely high boundary condition. The number of takings that NOAA permits by shrimp and high seas longline fisheries, as well as military operations, is orders of magnitude greater than the permitted number of takings by regulated facilities, and yet thes e activities have Incide ntal Take Statements because they are unlikely to je opardize the continue d existence of species (NOAA, 2012; DCN 12-5081).

Winter flounder is not a T&E species. EPA conduc ted a benefits transfer to estimate nonuse values based on winter flounder. As such, the estimates of winter flounder mortality due to IM&E are not relevant in the c ontext of T&E species. Winter fl ounder are commercially targeted species, and commonly appear in facility IM&E studies. Species protected by the ESA cannot be targeted commercially, and rarely (if ever) a ppear in IM&E studies . Consequently, using mortality estimates of winter flounder would be in appropriate in the context of estimating effects of the rule on T&E species.

For inland species, less data are available, and the data are older; doc umented IM&E of T&E species in the Inland region come from a si ngle study in 1976. Additionally, many inland species (e.g., pallid sturgeon) have extensive restocking programs that ma ke estimating the effects of IM&E on populations extremely difficult. Given these uncertainties and that the WTP study EPA used in developing its benefit estimates reflec ts population changes ac ross all species, an estimated population change of 0.25 percent – 0.5 percent represents a reasonable estimate of the likely effects of CWIS.

Essay 72 373

### Essay 73: Commercial and Recreational Fishing Benefits

EPA received a number of comments on its analys is of commercial a nd recreational fishing benefits. This essay responds to those comments.

Fishery Yield The model for estimating changes in fishery yield is common to the analysis of commercial and recreational fishing benefits. In comment number 2391, Riverkeeper states that the use of a global average trophic transfer va lue may not be appropriate for the individual regions evaluated by EPA, and that the detailed local data de veloped for these regions by EPA should be accompanied by local calculations of trophic tr ansfer rates. In comment number 2200, the Electric Power Research Institute (EPRI) states th at the approach applied to the rule benefit analysis to calculate changes in fishery yield in the 316(b) context is an approximation that does not consider important biological processe s such as compensa tion and reproduction.

Regarding the average trophic transfer value, EP A responds that, notably, the values of trophic efficiency (TE) compiled by Pauly and Chri stensen (1995; DCN 12-4954) are not habitat specific, but are specific to trophic-levels within specifi c geographic regions (e.g., the 140 estimates come from 48 food webs). The raw data indicate substantial variability not only among sites within aquatic ecosystem (e.g., freshwater ponds and lakes, coastal areas, shelves and open ocean), but also among trophic levels within site s (e.g., TE within Lake Kinneret varied between 3 and 19 percent) (Christensen and Pauly, 1993; DCN 12-5070). Accordingly, because of the complexity of multi-species food webs and the trophi c-level, and the locati on-specific nature of trophic transfer rates, EPA did not develop indivi dual estimates at local or regional scales but used the average rate. EPA agrees that calcula ting changes in fishery yield is an approximation that does not consider important bi ological processes. However, it is not clear that the effects of these processes would play a subs tantial role in changing the e ffects of impingement mortality and entrainment (IM&E) on fishery yield because popul ations of harvested fish are already quite depressed, and it is unlikely that intraspecies competition will play a substantial role in determining the number of harvestable fish.

Commercial Fishing Market Complexity In comment number 2458, the commenter notes th at commercial fishing markets are complex and, as harvest increases, there may be a decreas e in the dockside market price as a result of competition and fully accounting for market complexi ty could result in either overestimating or underestimating benefits.

EPA understands that there are complexities in estimating dockside market prices, but expects changes in dockside prices resu lting from the rule to be negl igible due to relatively small changes in commercial fisheries landings under the various options considered for the final rule. As described in the BA, EPA measured commerci al fishing benefits as changes in producer surplus assuming no change in the market price. EPA considered potential consumer surplus values associated with IM&E, but did not estimate changes in consumer surplus for the final rule and options considered because it found that dockside prices would not change enough to

Essay 73 374produce measurable shifts in consum er surplus. See Chapter 6 of the BA for more detailed discussion of how EPA addresse d changes in consumer and producer surplus for commercial fishing.

Great Lakes Study On the basis of a study of damages caused by IM &E at the Bay Shore Power Plant (BSPP) in Ohio (Gentner and Bur, 2009; DCN 12-5071), in comment number 2391 Riverkeeper claims that EPA’s estimates of baseline mort ality of walleyes in the Great Lakes are low, in the hundreds of fish per year. The BSPP study, look ing only at one Great Lakes pl ant, counted impingement of tens of thousands of walleyes per year in the data for that plant, along withentrainment of larvae amounting to hundreds of thousands of adult-equi valent fish. The commenter cites the same study by Gentner and Bur (2009; DCN 12-5071) to argu e that EPA used an incorrect (lower) per fish value of walleye in the analys is of recreational fishing benefits.

EPA agrees with the comment regarding th e study data. After reviewing the study, EPA incorporated the data from the BSPP study into the BA. As a result, EPA’s estimates of mortality for walleye in the Great Lakes increased substant ially, and recreational fishing benefits for the Great Lakes Region increased. See th e BA for the revised estimates.

EPA disagrees regarding the per fish value of walleye. EPA acknowledges that different primary studies report different values ranging from $3.66 to $22.63 per fish, with the majority of values being less than $10.00 (2004$); see U.S. EPA, 2006 (DCN 12-5024). EPA notes that the benefit value transfer described by the commenter may re sult in a different estimate compared to a benefits transfer based on a meta-analysis of relevant values of w illingness to pay (WTP) for catching an additional fish per trip (hereafter per-fish WTP) [including values from a study by Besedin et. al (2004; DCN 12-5072) used by the co mmenter]. EPA also notes that the general consensus in economic literature is that func tion transfers typically outperform unit value transfers (Rosenberger and Stanley, 2006; DC N 12-5073), although contrary or inconclusive findings have been reported in the resource va luation literature (Br ouwer and Bateman, 2005; DCN 12-5074). Finally, EPA points out that the authors chose a WTP estimate from Besedin et al. (2004; DCN 12-5072) for boat anglers ($18.4 3, in 2004$), and did not account for the WTP estimates for shore anglers which were si gnificantly lower ($9.96, 2004$). EPA acknowledges that higher per fish WTP would increase benefits of the final 316(b) re gulation, but not to the extent that EPA would expect to change the final rule option EPA selected because of the factors discussed in the preamble to the final rule.

Recreational Fishing Benefits Analysis Method In comment number 2200, EPRI states that EPA’s a pproach of applying marginal per-fish values to identify fishery impacts is not a standard ap proach for evaluating the economics of a fishery, and that a more thorough explana tion of the limitations of the approach and the rationale for the approach would be helpful for making the an alysis and rationale more transparent to stakeholders. The commenter argues that instead of using per-fish WTP to estimate changes in anglers’ welfare, the Agency s hould use the individual’s demand fo r fishing trips to recreational sites affected by the rule to estimate consumer su rplus from an increase in the number of trips. The commenter claims that EPA’s approach for the analysis of benefits does not adequately reflect the state of the world, nor individual beha viors, under baseline conditions, consistent with

Essay 73 375EPA guidelines for preparing economic analyses. In comme nt number 2245, Midwest Generation, Edison Mission En ergy, LLC commented that EP A did not consider fish consumption advisories (FCA), which it be lieves would decrease the value of fish.

EPA disagrees with these comments. EPA’s met hod for estimating recreational fishing benefits is based on a benefits transfer approach. Benefits transfer, whic h is an approach to estimating benefits in which results from one study are app lied to another context for which original data cannot be collected, are increasi ngly applied as a core component of benefit-cost analyses conducted by EPA and other government agenci es. EPA’s Economic Analysis Guidelines (U.S. EPA 2010; DCN 12-5027) consid er benefits transfer to be a standard approach. As noted in Chapter 7 of the BA, the validity and reliability of benefit transfer depend on a variety of factors, including the quality of underlyi ng studies and the fit and validity of the estimated econometric models.

EPA carefully reviewed and vett ed all studies included in the meta-analysis prior to includingthem in the meta-data which provided the basis for the benefits transfer. Results of the metaanalysis of the recreational fish ing studies appeared in peer re viewed journals (e.g., Johnston et al. 2005; DCN 12-5075; Johnston et al. 2006; DCN 12-4862). Therefore, the Agency concludes that the meta-analysis approach provides valid estimates for marginal changes in recreational catch that are consistent with the economic an alysis guidelines and the Agency’s data quality requirements for data used in regulatory anal ysis. The Agency, however, acknowledges that the meta-analysis model used in the analysis of recr eational fishing benefits of the final 316(b) rule provides a reasonable but not perfect match to the context in which values are desired.

EPA also discusses the difference between what w ould be calculated for benefit estimates using recreational demand models de scribed by EPRI and EPA’s methods. As described in the preamble to the final rule, the methodologies used to estimate benefits of the final existing facilities rule are largely built on those used to estimate benefits for the remanded Phase II and Phase III. The BA provides references to (i) Pa rt A of the Regional Analysis Document for the Final Section 316(b) Phase II Rule (U.S. EPA 2004; DCN 12-5021), and (ii) Part A of the Regional Benefits Analysis for the Final Sect ion 316(b) Phase III Existing Facilities Rule (U.S. EPA 2006; DCN 12-5024) for analyses using similar methodologies. EPA validated estimates of recreational benefits based on the meta-analysis of WTP fo r catching an additional fish as part of its benefits a ssessment of the Phase III regulation.

Specifically, EPA used regional models of recrea tional fishing behavior developed for the Phase II analysis to estimate benefits from reduced IM &E at potentially regula ted Phase III facilities for the four coastal regions and the Great La kes region. Results of the random access utility (RUM) models are presented in Chapter B4 th rough F4 of the Regional Analysis Document (U.S. EPA, 2006; DCN 12-5024). In general, EPA found that the RUM-based recreational fishing benefits fall within th e range of values estimated fo r a given study region based on the meta-model. That the values from the two indepe ndent analyses are rela tively close corroborates the use of meta-analysis in estimating the value of incremental recreational fishing improvements.

EPA notes that RUM models were not available fo r the Inland region due to the lack of data required for model estimation. Primary studies are also more resource intensive. Given a close

Essay 73 376match between the results from both methods, EPA continued using meta-analysis only in estimating recreational fishing bene fits for the final Phase III regul ation, and for the final section 316(b) regulation for existing faci lities. EPA acknowledges that local detail may be lost in a national level analysis, but this situation would occur with the use of other methods and models due to data limitations.

The record provides detailed information on a co mparison of the methods that supports use of the benefit transfer approach EPA used in the anal ysis of recreational benef its of the final section 316(b) rule for existing facilities. Specific lim itations and uncertainties associated with the estimated regression model and the underlying studies are discussed in section A5-3.3e of U.S. EPA (2006; DCN 12-5024). Additionally, Chapter 7 of the BA describes the limitations and uncertainties inherent in EPA’s analysis of recreational fishin g benefits of the final rule.

EPA understands that the use of recreational demand models is a standard approach to estimating welfare changes stemming from increased visitati on to recreational sites, but did not estimate such benefits for the 316(b) rule for existing faci lities. As stated in Chapter A11 of the Section 316(b) Phase II Final Rule – Regional Studies (U.S. EPA 2004; DCN 12-5021), the benefit to anglers from an increase in recreational catch ma y occur in two ways: (1) an angler may receive greater enjoyment from a given fishing trip when catch rates are higher, and thus receive a greater value per trip, and (2) a nglers may take more fishing trip s when catch rates are higher, resulting in greater overall valu e for fishing in the region. As shown by EPA’s 2004 recreational benefits analysis, the estimated welfare changes stemming from an enhanced trip value due to improvements in catch rates greatly outweigh be nefits from an increase in recreational participation (see Chapters B4, C4, D4, F4, and G4 in the Phase II report (U.S. EPA, 2004; DCN 12-5021).

The number of recreational trips taken by angler s is influenced by ma ny factors, including availability of leisure time, income, family oblig ation, and others. As a re sult, general changes in catch rates do not necessary result in significant changes in the number of trips. If changes in catch rates are small, then the change in the num ber of trips is likely to be negligible. EPA’s model of the number of fishing trips per season developed for the Phase II rule shows a positive coefficient on the variable denoting the quality of recreational fishing sites (i.e., IVBASE) indicating that an increase in catch rate would have a positive effect on the number of fishing trips per recreational season. Howeve r, the coefficient on this variab le is very small compared to other variables that influence the number of fish ing trip taken per season (e.g., intercept, gender, whether an individual owns a boat, etc.). Thus , the slight improvements in recreational catch expected under the final rule are unlikely to lead to a significant increase in the number fishing trips to the affected sites.

EPA did not estimate the percent change in recrea tional catch rates for the final rule. However, the Phase II analysis suggested that the expected in crease in catch is likely to be small (less than 5 percent) for most fish species (with the excep tion of bottom fish and non- targeted catch in the Mid-Atlantic region which EPA expects to increase by 22 and 12 percent, respectively). See Chapters B4, C4, D4, F4, and G4 in the Ph ase II report (U.S. EPA, 2004; DCN 12-5021). The application of per-fish WTP to estimating recreational fishing benefits of the final 316(b) regulation allows estimating welfare changes from enhanced recreational experience due to an increase in catch rates, assuming that the numbe r of recreational trips remains constant. Based on

Essay 73 377the results of recreational fishing analysis for the Phase II rule, including participation effects would not substantially change th e estimated recreational benefits.

EPA disagrees that its approach for the analysis of benefits does not adeq uately reflect the state of the world or individual behaviors under baseli ne conditions, consistent with EPA guidelines for preparing economic analyses. As a baseline fo r the analysis of fishing benefits, EPA used current mortality from IM&E, and the correspondi ng current angler catch rates. This reflects estimated conditions without the regulation. To estimate the change from these baseline conditions resulting from the final rule, for the reasons explained in Ch apter 3 of the BA, EPA assumed that the controls would eliminate th e mortality in proportion to the reduction in entrainment, and that the reduced mortality transl ates into an increase in catch rates (see detailed discussion in Chapter 3 of the BA). This estima te reflects an estimate of conditions with the regulation. Note that EPA presents this approach in terms of valuing th e forgone catch without the regulation (benefits of eliminating baseline IM&E losses). See in se ction 7 of the BA for detail.

EPA disagrees that it did not c onsider Fish Consumption Adviso ries (FCAs). First, EPA notes that FCAs do not affect catch and release va lues. According to U.S. FWS data (2006 DCN 12­ 5076), approximately 23.3 percent of freshwater angl ers release all the fishthey catch (“catchand-release” anglers). The catch and release ra te is much higher (60 percent) for the most commonly caught saltwater species such as sea trout (NOAA NMFS, 2011; p.10 DCN 12-5077).

EPA notes that the analysis of recreational fish ing benefits was conducted at the regional level (see Chapter 7 of the BA). Although a FCA may aff ect the value of fishing at the FCA affected sites and visitation patterns in the baseline, the estimated change in anglers’ welfare due to increased catch is unlikely to be significantly influenced by the FCA presence in a given region. Consistent with the Phase II and Phase III an alyses described above, EPA assumed that the regional pattern of visitation to fishing sites wi ll not change, but the catch rate would increase with increased fish abundance at the sites vi sited by anglers under the baseline scenario.

Declining Marginal Utility In comment number 2200, and others, EPRI a nd other commenters claim that EPA does not account for decreasing marginal utility in the estimate of per-fish value.

EPA agrees that the marginal va lue of catching additional fish d eclines as catch rates increase. The Agency, however, disagrees that the per-fish values based on the meta-analysis were applied incorrectly, and thus are likely to produce biased be nefit estimates.

The per-fish WTP values predicted by the meta-a nalysis are based on per-fi sh values taken from a set of valuation studies, many of which were published in peer-reviewed academic journals, and all of which have been vetted by EPA to ensure that they use valid economic valuation techniques. The original studies reflect willingness-to-pay for cat ching an additional fish given the baseline catch rates. Given the variety of geographic locati ons and waterbody types included in the original studies, EPA concludes that th ese studies provide a reas onable approximation of baseline catch rates at the fishing sites affected by the secti on 316(b) regulation.

Essay 73 378As noted in Chapter 7 of the BA, the average ba seline catch rates for the affected species range from 0.2 to 3 fish per trip. The only exception is th e average catch rate for panfish (4.7 fish per trip) in the Inland and Great Lakes regions. Where both the baseline catch rate and the expected changes being considered are re latively small, the marginal per-fish values predicted by the meta-analysis are likely to be more accurate because it is not necessa ry to account for the decreasing marginal value of multiple fish that are caught by the same angler.

Environmental Justice In comment number 2200, the commenter (EPRI) states that EPA’s assessment of environmental justice-related to recreational fishing benefits is very cursory, and does not consider the impact of higher electricity prices on low income groups.

EPA disagrees. EPA did consider the effect of the rule on electr icity prices. As shown in Table 4-5 of the Economic Analysis report, the estimat ed percent change in electricity prices for residential consumers is negligible (0.08 percen t). Therefore, this increase did not a warrant further examination of the effects of the price increases on sensitive popul ations. EPA notes that this rule does not prevent the adjustment of u tility rates for sensitive populations. In addition, EPA found that neither low-income nor minority population groups participat e to a lower extent, in a statistically significant way, in the benefits of the final rule than the general population in states with regulated facilitie s (see Chapter 12 of the EA).

Essay 73 379

### Essay 74: Nonuse Benefits Analysis Methods

EPA received a number of comments on the use of a study of fish habitat restoration in Rhode Island to estimate the potential nonus e benefits of the rule using a benefits transfer approach. The study provides estimates of the willingness to pay (WTP) of Rhode Island residents for anadromous fish habitat restoration, and EPA us ed a model variant presented by Zhao et al. (2013; DCN 12-5060) for the final rule analysis. Th is essay responds to comments on this study.

Limiting the Transfer to Two Regions In comment number 2391, Riverkeeper states that it is not appropriate to limit the transfer of nonuse benefits from the Rhode Island study to only the North Atlantic and Mid-Atlantic regions as EPA did in the BA. Riverkeeper commented that EPA needs to locate other studies, transfer the Rhode Island study results to the remaining regions, or comple te and apply its own stated preference study to estimate nonus e benefits in other regions. Riverkeeper faults EPA’s conclusion that only the Rhode Island study is us able for estimating nonuse benefits of reducing impingement and entrainment. Riverkeeper cite s work on the geographic scope of nonuse values by Loomis (2000; DCN 12-4890), proposing that it is appropriate to increase EPA’s nonuse values for impingement and entrainment losses in the North Atlantic and Mi d-Atlantic regions to 2.72 times as large as EPA’s estimate to reflect the reduced but non-zero value per household of this region’s fish to the rest of the nation. To account for th e remaining regions, Riverkeeper proposes that, until regionally specific numbers become available, nonuse benefits might be roughly proportional to age-one equivalent (A1E) ba seline mortality, resulting in an extrapolated national total of nonuse benefits of 2.085 times the two-region total.

EPA disagrees that it is appropr iate to transfer the estimate s of nonuse benefits based on the Rhode Island study beyond the North Atlantic and Mid-Atlantic re gions to obtain an extrapolated, national, total nonus e benefits estimate. Among the best practices for implementing benefits transfer techniques are ensuring the similarity of the resources and population characteristics. EPA did not extend the benef it transfer beyond the No rth Atlantic and MidAtlantic regions because of the potential for subs tantial differences in species characteristics, aquatic resource conditions , preferences, and demographics in other regions compared to the original context of the transf er study. For example, the Rhode Island study focused on regional environmental issues, notably, th e inability of fish to migrat e upstream for spawning due to dams. The fish specifically mentioned in the stud y, anadromous alewife, shad, American eel, and Atlantic salmon, are not lost to impingement and entrainment in the South Atla ntic, Gulf of Mexico, or Inland regions. Losses of anadromous fi sh in the California regi on occur at facilities that will have closed-cycle cooling based on St ate regulations. Although there may be inferences that can be drawn more widely from the study results regarding national nonuse values associated with aquatic resources, EPA does not consider the study results to be nationally representative.

As noted in the Information Collection Reque st (ICR) supporting statement for its stated preference study (U.S. EPA, 2012; DCN 12-5033), EP A has not identified any previous studies that would provide a good match for the final rule. The ICR indicates that, although there are

Essay 74 380many studies in the environmental economics lit erature that quantify WTP associated with various types of water quality and aquatic habi tat changes, none of these studies allows the isolation of non-market WTP associ ated with quantified reductions in fish losses (or increases in fish populations) for forage fish. Most avai lable studies estimate WTP for broader, and sometimes ambiguously defined, polic ies that simultaneously influe nce many different aspects of aquatic environmental quality and ecosystem servi ces, but for which WTP associated with fish or aquatic life alone cannot be identi fied. Among available studies, the most closely related is the Rhode Island study, which provides estimates of total WTP for multi-attribute aquatic ecosystem changes related to improvements in small migr atory (diadromous) fish. For a more detailed description of available study ex amples, see section 3(a) on n on-duplication of the 316(b) ICR supporting statement.

EPA agrees that the work by Loomis (2000; DC N 12-4890) suggests that households outside of the North Atlantic and Mid-Atlant ic Regions are likely to have nonuse values for reductions in impingement mortality and entrainment under the fi nal rule. However, the percent of households affected, and the effect on WTP by distance from specific sites, varies greatly by species. The species addressed in the Loomis study ( 2000; DCN 12-4890) (e.g., salmon, Mexican Spotted Owl) are not similar to those affected by the final rule (the majority of which are forage fish), and the Rhode Island study did not address WTP fo r households outside of the state. Therefore, EPA does not use this study to support a benefits transfer of the Rhode Island study results to households beyond the two regions that it d eems similar to the original study area.

EPA agrees with the commenter that estimati ng national-level nonuse benefits would improve the analysis of benefits for the final section 316(b) exis ting facilities regulati on. As stated in the preamble to the final rule, and described in th e BA accompanying the proposed and final rules, EPA conducted a stated preference survey to ca lculate benefits associated with minimizing adverse environmental impacts to aquatic ecosyst ems from cooling water intakes. EPA expects to seek Science Advisory Board (S AB) review of its survey prior to using the results in benefits analyses of national rulemakings . Although it will delay use of the results, EPA considers SAB review to be essential given the importance of this issue for the evaluation of ecological benefits generally.

Criticism of the Rhode Island Stated Preference Study In comment numbers 2210, 2200, 2156, and others , the Utility Water Act Group (UWAG), Electric Power Research Institute (EPRI), Edis on Electric Institute (EEI), and some power generating facilities argue that limitations inherent in the stat ed preference appr oach generally, and the Rhode Island study specifi cally, render the results nontransf errable. Commenters assert that the Rhode Island stated pr eference study creates preferences through formulation of the ecological indicators presented to respondents; is subject to potenti al bias related to inherent double-counting in the underlying attributes respondents are valu ing, and potential hypothetical bias. Commenters also assert th at pre-testing does not ensure the elimination of biases, and a study by Murphy et al. (2005; DCN 12-5078), who c onduct a metastudy of studies that compared actual and stated WTP, and an empirical analysis relating the amount of overstatement bias in stated WTP to various features of the study, s uggests an overstatement of WTP in the Rhode Island study.

Essay 74 381EPA disagrees with these comments. The publishe d literature supports th e use of the stated preference approach generally for nonmarket valu ation or estimating nonuse benefits, and for use in benefit-cost analysis (e.g., Freeman, 2003; DCN 12-4815; Boardman et al., 2006; DCN 12­ 5066). Although EPA recognizes that controversy exists over th e use of stated preference methods, by definition, market-based informa tion does not exist for valuing nonmarket goods and services. Nonuse values can only be estima ted by extracting information on preferences. Carefully constructed stated preference surv eys represent one mean s of obtaining this information.

The “creation of preferences” claim has been a common argument of stated preference skeptics for over two decades, but has not been found to be a convincing argument ag ainst the use of the method, including in the National Oceanic a nd Atmospheric Admini stration (NOAA) Blue Ribbon Panel (Arrow et al. 1993; DCN 12-4730). Mo reover, the Rhode Island study in question has been published in the peer reviewed literature on multiple occasions as an example of how to improve stated preference valuation of aquatic ecological changes. More specifically, it has been cited as an example of the improved use of eco logical indicators within stated preference surveys, and the appropriate design of such su rveys to value aquatic ecological changes (e.g., Johnston et al., 2011a, 2011b, 2012, and 2013; DCNs 12-4864, 12-4866, 12-4865, and 12-5079; Schultz et al., 2012; DCN 12-5080; Zhao et al., 2013; DCN 12-5060). Counter to the claim that there is “potential bias” related to the use of eco logical indicators in th is study, the scientific literature has repeatedly published this wo rk as an example of how researchers should construct SP surveys for valuation of aqua tic ecological changes, including the use of ecological reference conditions to help respondents comprehend the scope of ecological ch ange (Johnston et al., 2012; DCN 12-4865).

EPA emphasizes that all aspects of the Rhode Is land stated preference survey were developed based on extensive focus group and interview testing to evaluate outcomes that were relevant to respondents’ welfare, and effec tive methods of communicating thes e attributes (Johnston et al. 2011a, 2011b, 2012, and 2013; DCNs 12-4864, 12-4866, 12-4865, and 12-5079; Schultz et al., 2012; DCN 12-5080; Zhao et al., 20 13; DCN 12-5060). As detailed in these peer reviewed articles, the study included multiple focus groups and cognitive interviews to determine, among other things, the type and quantit y of information that the responde nts required in order to make an informed, comfortable decision, as recommended by Bateman et al. (2002; DCN 12-4740) and many others (e.g., Arrow et al., 1993; DCN 12-4730; Mitchell and Carson, 1989; DCN 12­ 4909). The authors used these focus group and in terview results to determine the type and quantity of information provided in the surv ey, including the communication of ecological attributes.

Regarding potential bias related to inherent double-counting in the underlying attributes, the commenter does not provide evidence to s upport the claim. The Rhode Island study was explicitly designed to mitigate any potential for double-counting in the valuation of aquatic ecological changes. This issue is addressed ex plicitly in Johnston et al. (e.g., 2011a and 2013; DCNs 12-4864 and 12-5079), who demonstrate both theoretically and empirically that the inclusion of the aquatic ecol ogical condition index does not d ouble-count welfare gains from aquatic ecological improvements. Th e authors also demonstrate that inclusion of this indicator is necessary (in this case study) to prevent respondent speculation and bias that could lead to embedded values being inadverten tly double-counted in analysis.

Essay 74 382Regarding potential hypothetical bi as, as noted in the above cited peer reviewed publications, the Rhode Island stated preference questionnaire was developed based on more than two and a half years of testing, in a collaborative process that included participation of economists, ecologists, resource managers, natural scie ntists, and members of stakeholder groups. The study included 12 focus groups with Rhode Island residents. These pr etests included verbal protocols (Schkade and Payne, 1994; DCN 12-4978) to assess how re spondents understood a nd answered choice questions. Among the goals of this survey design process, which was much more extensive than that found in the majority of studies in the pe er reviewed literature, was the amelioration of potential hypothetical bias.

Moreover, this comment provides no specific theoretical or empi rical evidence that hypothetical bias is prevalent in the transf erred estimates of WTP, beyond ad hoc claims regarding the amount of information provided to respondents and the familiarity of respondents with the policy context. Both of these issues are addressed expl icitly and extensively in the papers published from this research study (Johnston et al. 2011a, 2011b, 2012, and 2013; DCNs 12-4864, 12­ 4866, 12-4865, and 12-5079; Schultz et al., 2012; DCN 12-5080; Zhao et al., 2013; DCN 12­ 5060).

Regarding potential bias due to the failure to remind respondents of substitutes and alternatives, the comment is based on incorrect informati on. The Rhode Island survey reminded respondents both of substitutes and alternatives at the local level (including a map showing all rivers in Rhode Island that provide passage for migratory fi sh, as well as all othe r rivers in which fish passage could be restored) as well as the nati onal level (e.g., public safety, homeland security, economic improvement and jobs).

Regarding tests of internal validity, the co mment is based on incorrect and misleading information. The Rhode Island study involved a va riety of tests of internal validity. The comment incorrectly claims, for example, that alternative surveys were not administered. As reported by various peer reviewed publica tions (Johnston et al . 2011a, 2011b, 2012, and 2013; DCNs 12-4864, 12-4866, 12-4865, and 12- 5079; Schultz et al., 2012; DCN 12-5080; Zhao et al., 2013; DCN 12-5060), the Rhode Island study authors de veloped multiple versions of the survey, enabling multiple tests of sensitivity and internal va lidity. None of these tests suggested a lack of validity.

EPA agrees that pretesting cannot guarantee that all biases are eliminat ed. However, there is overwhelming consensus in the literature that bi ases can be greatly reduced, and in some cases eliminated, by proper and extensive developmen t and pretesting (cf. Mitchell and Carson 1989; DCN 2-4909; Bateman et al., 2002; DCN 12-4740; Arrow et al ., 1993; DCN 12-4730). As noted above, the Rhode Island survey was subject to mo re extensive development and pretesting than the great majority of studies found in the peer reviewed literature, and has been the basis for multiple publications on improved stated pref erence methods. This comment provides no empirical or theoretical evidence of bias in EPA’s benefit transf ers, only the general claim that pretesting cannot always guarantee that biases are eliminated.

EPA disagrees with the comment regarding a st udy by Murphy et al. (20 05; DCN 12-5078) that applying “Model 2B” yields an overstatement of WTP of over 100 percent. This comment is based on a misuse of the meta-analysis of Mu rphy et al. (2005; DCN 12-5078), resulting in

Essay 74 383misleading and biased inferences regarding hypo thetical bias. First, the m eta-analysis is misapplied, based on a misinterpretation of the variables in the model. For example, the hypothetical value variable (lnHypValue) in the meta-analysis of Murphy et al. (2005; DCN 12­ 5078) is the WTP value directly stated by re spondents (or directly inferred from choice responses) in the original study. For a study with an annual paymen t vehicle, this would reflect the stated annual WTP. The comment er’s interpretation of the dire ct WTP from the Rhode Island study (Johnston et al. 2011; DCN 12-4864) for this comparison (as payable forever, at a 25 percent discount rate) artificially and improperly inflates the orig inal hypothetical WTP estimate, and as a result generates a misleadingly high estima te of the projected difference between stated and actual WTP. Hence, this comment misinterpr ets the variable defin itions of Murphy et al. (2005; DCN 12-5078).

Second, and perhaps more importantly, Murphy et al. (2005; DCN 12-5078) did not intend the meta-analysis to be used in this manner; that is, to project an estimate of hypothetical bias for studies that were not in the or iginal metadata. In fact, Murphy et al. (2005; DCN 12-5078) are very careful to indicate the severe limitations of their results. For example, as stated on pages 322-323, “We are reluctant to over-emphasize the si gnificance of the dummy variables because a meta-analysis of hypothetical bias appears to be very sensitive to model specification, a lack of variability in the data, and trea tment of extreme values. In ad dition, some of our key findings differ from those reported in previous research ...This means that our ability to determine the factors responsible for this bias is quite limite d, and that estimates of statistical significance associated with several potentially important determinants of bias should be viewed with caution.”

For both of these reasons, the Agency has dete rmined that the estimate of hypothetical bias provided in this comment does not provides useful information re garding the presence or extent of possible hypothetical bias in the Rhode Island study.

EPA’s Application of the Rhode Island Study Commenters critical of EPA’s use of the Rhode Island study to estimate nonuse values for the 316(b) existing facilities rule claim that EPA fails to explain how the study correlates to the rule, or account for site-specific differences in the types of species being impinged and entrained. UWAG states that a number of the assumptions re quired to conduct the bene fits transfer may be invalid, including that Rhode Island ecological indicators may not be representative of the entire North Atlantic and Mid-Atlantic Regions; that the Rhode Island ba seline is different than the baselines in the whole North Atla ntic and Mid-Atlantic Regions; and that stated WTP is unlikely to be linear in the percentage of the maximu m possible number of fish that the policy would restore. UWAG concludes that it is not appropriate to use the Rhode Island survey to calculate national nonuse benefits or for permit writers to use this survey in site-specific determinations of potential nonuse benefits from forage fish gains.

EPA disagrees with these comments. EPA acknowle dges that no study represents a perfect match to the 316(b) existing facilities rulemaking alternatives, including specific baseline resource conditions (except for EPA’s stated preference survey). However, be nefits transfer is an accepted practice for estimating environmental benefits wh en similar studies are available. EPA fully describes the study and the parallels to the rule making in the benefits analysis accompanying the

Essay 74 384proposed and final rules. Specifically, EPA point s out that, “The choice experiment addresses forage species such as alewife and blueback herring that neither are subject to current recreational or commercial harv est in Rhode Island nor are ch arismatic species. Hence, the species affected are a close analog to the forage fish affected in th e 316(b) policy context. Moreover, the policy context of the Rhode Island study involves changes to technologies used within in-water structures (i.e., the use of fish ladders or fish lifts at dams), providing another parallel to the 316(b) context, which also involves the use of new technologies within in-water structures to mitigate harm to aquatic organisms.”

EPA also provided analysis specif ic to the issues of scope noted by the commenter. As discussed in the benefits analysis, within the choice sc enarios of the Rhode Island study each ecological attribute is expressed in relative terms with re gard to upper and lower reference conditions (i.e., best and worst possible in the Pawtuxet) as defined in survey informational materials. Relative scores represent percent progress towards the upper reference condition (100 percent), starting from the lower reference condition (0 percen t). This also implie s bounds on the potential attribute levels that might occur in the choice questions, following guidance in the literature to provide visible choice sets (Bateman et al., 200 4; DCN 12-4739). The number of fish affected by 316(b) regulations is many times larger than that considered in the Rhode Island study, such that using the per fish values would likely be an overe stimate. Therefore, EPA transferred the results based on percentage improvements in the fish co ndition, relative to the reference condition for each ecosystem, to address the sc ale concern described above.

EPA also addressed these issues in the un certainty section of the BA. Although some uncertainties would result in overstatement of be nefits, others are likely to understate benefits. EPA disagrees that site-specific differences precludes the use of the study to estimate potential benefits for these two regions as a whole. EPA de fined its study regions based on similarities of species affected by impingement and entrainm ent, and fisheries re gions defined by NOAA. NOAA’s delineation of fisheries regions is based on similarities of fish species and characteristics of commercial a nd recreational fishing activities in the areas. For example, the habitat range for many pelagic sp ecies (including shad, herring, striped bass) spans from North Carolina or Virginia to Maine. Therefore, EPA transferred the results of the Rhode Island study to both the North Atlantic and Mid-Atlantic regions. The North Atlantic region includes all estuary, tidal river and ocean facilities in Main e, New Hampshire, Massachusetts, Connecticut, and Rhode Island. The Mid-Atlantic region includes all estuary, tida l river and ocean facilities in New York, New Jersey, Pennsylva nia, Maryland, the District of Columbia, Delaware, and Virginia.

Indeed, as discussed above, other commenters strongly suggest extrap olating the study beyond the North Atlantic and Mid-Atla ntic Regions. Although EPA did not use the Rhode Island survey to calculate national level nonuse be nefits (for reasons described above), EPA disagrees that the study is not appropriate for site-s pecific determinations of potent ial nonuse benefits when there is a close match between the resour ce and populations characteristics.

Essay 74 385

### Essay 75: Nonuse Benefits on Reducing I&E Mortality: Habitat

‐ based Approach

EPA received a number of comments on the habi tat-based methods for estimating nonuse values of reducing fish losses at cooling water intakes.

Role of Habitat

‐ Based Approach Results EPA received conflicting comments on the role of the habitat-based approach results in the analysis of benefits of the s ection 316(b) final rule. In comm ent number 2391, Riverkeeper states that use of nonuse values calcula ted with the “habitat restorati on area equivalent” method would close the entire gap between estimated costs and benefits under Option 1, or about half the gap under Options 2 and 3 in the proposed rule, yet EP A does not include it in its best estimate of costs and benefits. In comment number 2210, the Utility Water Act Group (UWAG) asserts that EPA should not use the habitat-based method indi rectly as a justific ation for the national impingement rule, or to provide estimates in site -specific determinations, because it is based on a large number of assumptions. UWAG notes that use of such a method in oil spill damage assessments is for developing estimates of the relativ e similarities of lost and gained habitats, not for estimating dollar values for fish protect ion. In comment number 2200, the Electric Power Research Institute (EPRI) claims th at it is not clear how the estimates fit into the proposed rule benefit analysis or to what extent they are to be used as part of the record to determine that the rule will produce benefits that justify the costs of the rule. UWAG also claims that the estimates EPA develops do not distinguish between use and nonuse benefits. As such, it would not be desirable to replace all of the other careful anal yses with the habitat-ba sed results as EPA would need to do without being able to dis tinguish between use and nonuse benefits.

Assumptions in the Habitat

‐ Based Approach In comment numbers 2210 and 2200, UWAG and EP RI comment on the assumptions underlying the habitat-based method results. UWAG term s EPA’s numerous assumptions unrealistic, including: that all fish species are aggregated in the calculations; a single habita t (e.g., eelgrass) is assumed to be relevant within a region; wil lingness to pay (WTP) values for habitat restoration were based upon stated preferen ce studies; WTP for habitat rest oration can be converted to meaningful estimates of WTP for fish habita t; a single study (from salt marsh restoration in Narragansett Bay in Rhode Island) was used to estimate the proportion of value associated with fish habitat in the Mid-Atlantic, South Atlantic and Gulf of Mexico regi ons; arbitrary values of 10, 20, and 100 percent to estimate the proportion of value associated with fish habitat in other regions; that the resulting per acre value was associated with nonuse values; and that all residents within a state with an affect ed waterbody would have nonuse va lues. EPRI claims that there appears to be significant differences between the hypothetical choice scenario and policy context. EPRI cites the National Oceanic and Atmospheric Administration’s proposed natural resource damage assessment (NRDA) regulations list of thr ee basic issues that researchers should consider when selecting transfer. In add ition, EPRI claims that the populations havi ng knowledge of and being affected by changes in im pingement mortality an d entrainment (IM&E) ar e likely to be quite different from those knowing about and being affected by changes in habitat.

Essay 75 386The Habitat

‐ Based Method’s Unrealistic Results In comment numb er 2210, UWAG terms EPA estimat es of nonuse benefits resulting from the habitat-based method implausible be cause the results are more than a factor of 30 larger than those developed using other methods, as well as that the results impl y each household in the Mid-Atlantic region would be willing to pay $89 each year for the fish saved due to the national impingement rule, again stating that the method should not supplant careful benefits assessments of the potential for significant nonuse benefits in section 316(b) si te-specific benefit assessments.

Response to Comments Although EPA disagrees with many of the specifi c comments, the comments are not relevant for purposes of the final rule because EPA decided not to employ the habitat-based approach to nonuse values in the final rule analysis. EPA in cluded the habitat-based approach at proposal because it illustrated the potential magnitude of nonuse values, and provided additional support for both the benefits transfer and SP survey a pproaches to benefit estimation, described in Chapters 8 and 11 of the BA. However, EPA di d not consider the habitat-based approach appropriate for primary analysis of nonuse bene fits, and thus did not include habitat-based estimates in the total benefits of elimin ating or reducing IM&E under the final rule.

EPA agrees that more information is needed on nonuse benefits in comparing the benefits and costs of the rule. EPA considered the monetizati on of the nonuse benefits from the rule to be incomplete. This is why the agency adopted th e habitat-based analysis for the proposal while working on methods (i.e., a stated preference study) for the final rule to enable it to estimate and incorporate such benefits in the benefit-cost comparison.

EPA disagrees that it is using the habitat-base d method as an indirect justification for the national impingement rule. EPA chose not to em ploy the habitat-based approach for estimating nonuse values for the final rule or include them in assessing the total bene fits of the rule. Thus, these estimates and methods are not app licable to EPA’s final decision-making.

Rather, as explained in the preamble to the fi nal rule, EPA looked at a number of factors, consistent with the Courts’ rulings regarding ma king this determination. EPA first considered the availability and feasibility of va rious technologies, the associated costs (including potential costs to facilities and households), and the economic impacts. EPA reviewed the efficacy of these technologies in reducing impingement mortality and entrainment. EPA also considered additional factors set out in CWA section 304(b) , including location, age, size, and type of facility. EPA next considered the non-water quality environmental impacts of different technologies on energy production and availability, electricity reliability, and potential adverse environmental effects that could arise from the use of the different t echnologies evaluated.

As a result of this thorough evaluation, EPA is promulgating a rule that includes a best technology available standard fo r impingement mortality based on modified traveling screens with a fish handling and return system whose pe rformance has been optimized to minimize IM, and several options for compliance.

EPA cannot rule out at this time that habitat based approaches to benefits analysis may be informative for site-specific determinations.

Essay 75 387

### Essay 76: Break Even Analysis

Introduction EPA received a number of comments on the esti mated break-even comparison of total national social benefits to total national social costs. (The break-even approach enables EPA to work backwards to estimate what the non-monetized values would need to be, in terms of willingnessto-pay, per household, per year, in order for total annualized benef its to equal a nnualized costs.) This essay responds to those comments.

At the outset, EPA emphasizes that section 316(b) doe s not require impingement mortality and/ or entrainment controls to be justified by an exact balan ce of costs and benefits. See Entergy Corporation v. Riverkeeper , 556 U.S. 208 (2009) (permitting, but not requiring, cost-benefit analysis). Instead, the reasons for the requirements are discussed in the rule. EPA understands that Executive Order (EO) 13563 requi res that costs of a rule be ju stified by the benefits, but this same EO recognizes that some be nefits are difficult to quantify. Va lues that the public holds for ecosystems are difficult to quantify and, as the guidance for implementing EO 13563 states, do not take into account equity and fairness.

These issues of equity and fairness are relevant when dealing with extern alities, such as one entity harming a public good such as a fishery or re creational water. In its analysis, EPA attempts to monetize benefits, and where monetizing benefits is not possible, to quantify benefits. Where EPA is not able to quantify benefits, EPA attempts to describe benefits. However, EPA’s conclusion under EO 13563 that the be nefits of the rule ju stify the costs is not based on a simple comparison of monetized benefits and total costs. Instead, EPA incorporates the non-monetized, nonuse benefits into its considera tion of the benefits of the rule. The comments below take issue with that incorporation. EPA’s respon ses to those critiques then follow.

Riverkeeper Comments In comment 2391, Riverkeeper states that EP A’s break-even calculation assumes that only households in States with regulated facilities care about the fi sh affected by these facilities (although those State encompass almost all of the population), and critic izes EPA’s use of 2000 Census data on the number of households. Riverk eeper claimed that using more recent Census data would lower the break-even estimate.

EPA agrees with this comment and used 2010 Cens us data on the number of households in its analysis for the final rule. EPA concurs that al though including the States in which affected facilities are located encompasses most of the population, households in the omitted States of Idaho and Nevada, and the District of Columbia are also likely to hold nonuse values for fish affected by the final rule. Includ ing those additional States and th e District of Columbia added 1.9 million households to the 114.9 million households EPA used in the analysis for the final rule.

Riverkeeper performs a break-even calculation with its own estimates of omitted benefits. However, Riverkeeper suggests that the estimate s of the per household gap between total costs

Essay 76 388and monetized use-value benefits in EPA’s origin al analysis could be used to describe the benefits of not killing large numbers of fish, sh ellfish, etc. and asking whether people are willing to pay the indicated amount in higher electricity bills. Riverkeeper states that this provides what might be called a “holistic” comparison of costs and benefits, citing Ackerman and Heinzerling (2004; DCN 12-5065). Riverkeeper stat ed that this would be a mo re meaningful and accessible approach than a complex academic analysis of the inference of what individuals must be willing to pay; instead, it involves asking them directly, with the question tailored to this decision in particular.

EPA disagrees with the commente r’s approach to using the break -even results. The results are not appropriate for use in survey design, but ra ther, for comparison to other study results. One such study is EPA’s own stated preference surve y, which used electricity bills as a payment vehicle to estimate the public’s total willingness- to-pay (use plus nonuse value) to avoid fish losses, following standard practic es for survey design and value elicitation. This method involves directly asking people the question tailored to this decision in pa rticular. Focus groups indicated that individuals are willing to pay an amount in the range of the break-even result which EPA calculated.

UWAG Comments In comment 2210, the Utility Water Action Group (UWAG) compares the break-even value to estimated use values, and finds th e result (the number of times that the break-even value exceeds the use value) to be implausi ble. UWAG calls EPA’s conversion of the gap in estimated costs and benefits into a dollar va lue per household misleading because per household break-even values would be only about 4 pe rcent higher for an op tion that costs as much, but has only 1/10 th the impact on fish mortality based on use bene fits that UWAG estimates by dividing EPA’s estimate by 10. Also, UWAG states that EPA could make the cost look even smaller by using the number of individuals rather than the number of households, or all the households in the world. UWAG states that the flawed reasoning based on a “break-even” analysis resembles the use of “habitat replacement costs” to represent the “value” of fish in the Phase II rulemaking.

EPA disagrees with these comments. Regarding th e comparison of the break-even value to use values, there is no a priori evidence to suggest that the ratio is implaus ible, and UW AG offers none. EPA notes that a very large number of users 59 plus nonusers holding even relatively low nonuse values, compared to a relatively small num ber of users holding use values – even if use values are higher than nonuse values for users – could still result in a total nonuse value that exceeds the total use value. Even if both costs and monetized be nefits are reasonably accurately measured, it is not implausible for the public to hold high values for avoiding resource loss, and these values may increase the greater are the lo sses this regulation is designed to reduce.

EPA estimated use benefits on a per household basis, and it is appropriate to judge nonuse values on a per household basis as well. WTP values in the literature are typically reported on a per household basis because the household is the f undamental consumer decision-making unit (many households include members who are not independ ent consumers or economic agents). For this reason, EPA disagrees that the number of individual s rather than the number of households is the appropriate unit for comparison. EPA further notes that the comment is moot because EPA did

59 Users clearly hold use values, but users may also hold nonuse values.

Essay 76 389not use the overall population in its break-even analysis. EPA disagrees with the commenter’s hypothetical analysis; the comment is not relevant because such an option was not available to EPA, and the commenter has no basis for specula ting that EPA would have selected an option that costs the same but is 1/10 th as effective. EPA agrees with the commenter foreigners may hold nonuse values for U.S. resources. However, EPA does not include their nonuse values in benefits analyses because the Agency is comforta ble making the determination that total benefits justify total costs on th e basis of the U.S. population alone . Incorporating values held by foreigners would simply make a stronger case for the same determination.

Finally, EPA disagrees that the break-even analysis and habitat replacement cost analysis represent flawed reasoning. Rather , EPA recognizes that it is flaw ed to compare total costs to partial benefits, and provides th ese approaches to shed as much light on the cost-benefit results as possible in the absence of comple te information on society’s values.

Essay 76 390

### Essay 77: 316(b) Stated Preference Survey

EPA received a large number of comments on the proposed rule and NODA addressing the use of stated preference (SP) surveys to determine benefits associated with the rule. EPA conducted a SP survey to calculate benef its associated with minimizing adverse impacts to aquatic ecosystems from cooling water intakes.

For some commenters, the use of SP surveys to eval uate benefits remains controversial, and they objected to using such surveys. Other comm enters acknowledge the decades of technical development and improvement of these methods a nd support using SP surveys. In part to address the issues surrounding the us e of SP surveys, as discussed in Ch apter 11 of the Benefits Analysis document, EPA plans to obtain Science Adviso ry Board (SAB) review of its SP survey.

The upcoming SAB review is in addition to the external peer review EPA already conducted on the survey. SAB review will provide another hi gh-caliber, independent professional judgment concerning the quality of the survey, includi ng possible improvements EPA could make to the analysis. EPA also plans to seek SAB input on whet her, how, and in what circumstances this or similar surveys could be used as support for other national rulemakings or for 316(b) NPDES permits. EPA expects that this SAB review will delay when EPA considers the survey results appropriate for use in supporting a rulemaking or a permit proceeding. Given the importance of answering the outstanding questions about use of the survey for the evaluation of ecological benefits, however, EPA has concluded that this additional time and effort is justified. Given the contemplated SAB review, using the SP survey results prior to completion of review would be premature. EPA notes that the survey was design ed to estimate respondent s’ willingness to pay for changes in the health of fish populations and aquatic ecosystems and be statistically representative at large (regi onal and national) scales; the re sults were not designed to be statistically representative at the facility level for the assessment of bene fits for individual sitelevel permitting decisions. That the survey was not designed for site-specific permitting does not necessarily mean that it cannot be adapted for such use. At this time, EPA has not attempted such an adaptation, although it may do so in the futu re. Regardless, EPA is committed to working with the States to support their 316(b) site-specific permitting deci sions with the benefit of the SAB review once it is completed.

This essay summarizes key comments received by EPA, both critical and supportive of the SP survey, and provides EPA’s response to these co mments. In many instances, the comments are moot, given that EPA did not rely on the results of the stated pref erence survey for the final rule. These comments are divided into two categories: (1) nonuse values, and (2 ) use of the SP survey results for cost-benefit analysis.

The commenters also reference numerous comme nts on EPA’s earlier Information Collection Requests (ICR) from 2005 to 2011, asserting that these comments are still relevant. EPA provided detailed responses to all ICR comments submitted under previous 316(b) rulemakings, which can be found in the following EPA docke ts: W-00-03: Phase I rule proposal;EPA-HQOW-2002-0052: Amendment to Phase I Final Rule; W-00-32: Phase II rule proposal; EPA-HQOW-2002-0049: Phase II NODA and Final Rule ; EPA-HQ-OW-2003-0005: Phase III Detailed

Essay 77 391Industry Questionnaire; EPA- HQ-OW-2004-0002: Phase III proposal; EP A-HQ-OW-2004-0020: Phase III stated preference survey focus groups ICR; EP A-HQ-OW-2004-0027: Phase I ICR renewal; EPA-HQ-OW-2005-0006: Phase III stated preference survey ICR; EPA-HQ-OW-2007­ 0142: Phase II ICR renewal; EPA-HQ-OW-2008- 0667: Existing Facilitie s rule; EPA-HQ-OW2008-0719: Phase I ICR renewal; and EPA-HQ-OW-2010-0595: Stat ed Preference Survey.

Nonuse Values Potential for nonuse values—existence of nonuse va lues for marginal effects on fish stocks—is highly subjective and the use of these in support of this rulemaking is inconsistent with EPA’s previous approaches. The SP survey and assessme nt of nonuse values is inappropriate because the resources are not unique or limited and the impacts are not substantia l or irreversible. The necessary conditions for the pr esence of significant nonuse va lues have not been met. A misunderstanding of the restorati on probability is likely to result in the overstatement of nonuse values.

Response: There are no theoretical, necessary co nditions for the existence of nonuse values. For example, resources do not have to be unique to be the source of nonuse willingness to pay (WTP). While factors su ch as uniqueness can affect the ma gnitude of willingness to pay, the significance of nonuse values depends on individu al responses to given conditions. While the EPA recognizes the possibility of low nonuse values in this case, significant nonuse values are also a strong possibility. In a ddition, prior research demonstrat es public willingness to pay for types of resource improvements that are simila r to those addressed here (e.g., DCNs 12-4865; 12-4866).

EPA notes that participants in focus groups and one-on-one cognitive inte rviews cited a variety of motivations for preventing fish losses, including the satisfaction of knowing that fish exist, the desire to bequeath healthy fish populations to future generations, and the desire to protect the functioning of aquatic ecosystems. Debriefing questions in the surv ey instrument verified these motivations. EPA is aware of no research—empir ical or otherwise—that demonstrates that individuals ascribe limited or no value to the aquatic resources a ffected by the 316(b) regulation.

EPA agrees that nonuse values are inherently su bjective, as are use va lues revealed through behavior, which is why it is important to conduc t a public survey to e licit those values. Once survey data was collected, EPA conducted a transparent analysis with the goal of reporting objective, nationally representativ e results. The EPA further notes that the referendum format of the survey allowed respondents who do not attach nonuse values to fish to choose policy options that reflect their preferences; respondents need no t value the existence of fish, nor do they need to be able to separate their use and nonuse va lues to respond to the survey questionnaire. EPA emphasizes that these comments reflect an assumption , unsupported by data, that nonuse values are trivial in this case. The stated preference surv ey and resulting data pr ovide a direct means to test this assumption and evaluate its accuracy.

Use for Cost

‐ Benefit Analysis The survey captures benefits whic h were previously “ze roed out”—the vast majority of benefits (98 percent) have been routinely “zeroed out” or ignored by EPA and State agencies, and this has skewed decision-making against environmental pr otection. Benefits now clearly outweigh costs,

Essay 77 392even while the survey estimates are undervalui ng benefits. The SP study c onfirms what EPA has known all along, that benefits of cl osed-cycle cooling are significan t and certainly are not wholly disproportionate to its costs.

Response: It is true that only a small portion of the benefits, particularly the nonuse benefits, associated with the 316(b) regulation were quantified in the Envi ronmental and Economic Benefits Assessment (EEBA) for the proposed rule . EPA followed a similar analytical approach for the final rule, adding new analyses of the benefits of reduced carbon emissions and some nonuse benefits estimated via benefits transfer. However, EPA disagrees that the nonmonetized benefits were “zeroed out” or ignored. While EP A has not relied on the results of the stated preference survey, it is not clear that even if the Agency had that the net benefits of requiring closed-cycle cooling would exceed the net benefits of the final rule because of the significance of the social cost of carbon. The social cost of car bon is a positive benefit for the final rule, but a negative benefit for Proposal Option 2.

Survey results are invalid and should not be us ed for cost-benefit anal ysis—the unprecedented application of SP methodology w ould have broad and long-term negative implications. Using a benefits calculation method ba sed on public opinion survey w ould directly and materially jeopardize prospects for a reasonable final EPA rule and subsequent s ite-specific compliance decisions. EPA should rely on traditional methodologi es that are based on biological science and economic principles, and not on a survey met hodology premised on hypothetical scenarios and questions.

Various deficiencies prevent the SP survey from accurately estimating benef its, which is critical to the rulemaking process. EPA and other agencies rarely use SP surveys to monetize nonuse environmental benefits, and have not previously done so in a national rulemaking covering multiple species without the risk of endangermen t. EPA’s limited experience in this complicated area of experimental economics has not given EPA sufficient opportunity to fully assess SP methods.

Response: Although EPA is not relying on the re sults of the stated preference survey, EPA disagrees strongly with the basic premise of these comments. It is well-documented that there are difficulties associated with measuring and monetizing all categories of benefits. While using benefit-cost analysis can be illuminating and useful in producing better decision-making, it can also be subverted to produce skew ed outcomes that allocate resour ces in a manner contrary to the best interests of society at la rge. This can occur, in partic ular, through blind reliance on only those benefits that can be monetized using traditi onal approaches, especially when that results in an incomplete analysis. EPA notes the significan t overlap of the commenters who suggest that benefit-cost analysis should be mandatory in decision-making, and those who suggest that stated preference methods are too contr oversial to be used. EPA notes that some of these same commenters have a self-interest that appears to be at odds with putting better and more illuminating analyses in front of decision makers. Rarely do these comments offer constructive suggestions that would rationalize their support for benefit-cost an alysis in decision-making with improving such analyses to make them mo re useful in societal decision-making.

EPA recognizes that there is so me controversy over the use of stated preference valuation methods. A recent evaluation of this controvers y, by Kling et al. (DCN 12-5084. p. 23), however,

Essay 77 393concludes that “the last 20 year s of research have shown that so me carefully constructed number based on stated preference analysis is now likely to be more useful than no number [for] cost– benefit analysis.” Stated preference methods have also “been tested a nd validated through years of research and are widely accepted by Federal, State, and local government agencies and the U.S. courts as reliable techniques for estim ating nonmarket values ” (DCN 12-4747, p. 26; DCN 12-5027). The Agency has concluded that the expans ive stated preference and choice experiment literature demonstrate that a pr operly design survey may provid e a useful tool for evaluating WTP for resources impacted by CWIS. The Agency recognizes the commenter’s perspectives on the validity of stated preference methods. The EPA, however, notes the absence of any clear consensus in the academic literature that indicates that the survey results are necessarily invalid or their use inappropriate as one of a number of tools in decision-making. These methods have now been applied in numerous cases to value nonmarket environmental resources and related policy changes. The Agency is aware of no th eoretical distinction between national policy analysis and other policy contexts (including da mage assessments) that would render stated preference methods unsuitable for such appli cations. Official guidance documents (DCNs 12­ 5027; 12-5027) and the Blue Ribbon Panel (DCN 12-4730)—while explicitly recognizing the controversies and challenges—al l consider stated preference methods, when conducted using best practices, to be a valid source of information.

As discussed earlier in this essay, EPA decided not to em ploy the survey results for purposes of decision-making in this rule, or include them in assessing the total benefits of the rule. EPA plans to continue review of the survey by submitti ng it to EPA’s SAB. SAB review will provide independent professional judgmen t concerning the quality of th e survey, including improvements EPA could make to the analysis, and how and in what circumstances this or similar surveys could be used, as support for national rulemaki ng or NPDES permitting whenever benefit-cost analysis is considered in the decision-making process.

Essay 77 394

### Essay 78: National Benefits

EPA received a number of comments on the national benefits of the rule, some asserting that benefits are underestimated, and some asserting th ey are overestimated, with detailed arguments for both claims. This essay responds to those comments.

Benefits are Underestimated In comment 2391, Riverkeeper states that EPA ca nnot accurately monetize the benefits of saving nonmarket fish, other aquatic organisms, and ec osystems. Riverkeeper c oncludes that until and unless EPA corrects its estimates of fish kills and recreational fishing benefits, completes its planned willingness to pay study, accounts for the substantial value that people place on environmental preservation (even from a distance), and corrects the serious deficiencies in its approach to valuing threatened and endangere d species, EPA will continue to dramatically undervalue the benefits of a uniform national standard based on closed-cycle cooling. The commenter asserts that the flaws in EPA’s anal ysis, both in quantification and monetization of the benefits, are sufficiently large that to rely upon it would be arbitrary, capricious and an abuse of discretion.

The commenter also states that EPA should co rrect its national estimate to account for the deficiencies identified in the Stockholm Environment Institute’s (SEI) report, which it provides. SEI applies EPA’s habitat-based method for es timating nonuse values, but extrapolates the results nationally. SEI also used a benefits transfer method to infer national threatened and endangered species benefits and modified EPA’s estimated recreational fishing benefits based on the Bay Shore Power Plant study. The commenter stat es that these basic m odifications result in benefits estimates that approach or are greater than EPA’s cost estimates for all of the options that EPA considered, including for a uniform na tional standard based on closed-cycle cooling. Also, the commenter states that correcting errors in (the costs and) the benefits estimates leads to the conclusion that the benefits of the regulation are greater than the costs for every option.

In comment 2260, the New York State Department of Environmental Conservation (NYSDEC) states that the rule wi ll result in an 82 percen t decrease in the reduction of annual mortality of age-1 equivalent fish over the remanded Phas e II Rule, despite covering an estimated 140 percent additional existing facilities and incr easing the required reduction in impingement mortality from 80 percent to 88 percent. NYS DEC asserts that, even considering that entrainment mortality reductions ar e not counted, the drop in benef its does not add up, and either EPA has substantially underestimated the benefits or the rule is ineffective.

EPA agrees that the benefits of the final rule are underestimated as presented, but, for the reasons stated in the preamble, EPA woul d not change its final rule even if it had a more complete benefits estimate. EPA has also completed its stat ed preference survey of willingness to pay (see Essay 77 for EPA’s response to comments on the st ated preference survey). EPA responds to the other suggested adjustments to its benefits es timates elsewhere, and disagrees that it relied heavily on the monetized benefits estimates.

Essay 78 395As described in the preamble to the final rule, EP A assessed the benefits of the rule in order to comply with Executive Orders (EOs) 12866 and 13563. Pursuant to EO 13563, EPA finds that the benefits of the BTA requirements in this final rule justify the costs, despite the fact that monetized benefits are numerically lower than th e social costs. EPA notes that the monetized benefits are only a subset of all benefits. In the absence of complete esti mates of nonuse benefits, EPA estimated partial nonuse benefits for the final rule using the benefits transfer approach from proposal. This approach is still a partial estim ate because it concerns only two coastal regions and because the original study focused on fish population improvements for a few species (river herring, shad, American eel, and Atlantic salm on) in one watershed only. Scaling benefit estimates to represent multiple watersheds in th e Northeast and Mid-Atlantic region may not be sufficient to capture true benefits of aquatic habitat improvements over a large geographic scale and dozens of species. In addition, the esti mated nonuse value of reducing impingement mortality and entrainment (IM&E) was based on the expected improvements to population of one species (winter flounder) due to the lack of population data on most species affected by IM&E. EPA notes that winter flounder accounts for only 0.9 percent of IM&E losses in the North and Mid-Atlantic regions and 0.3 percent of the national IM&E losses. Although it not appropriate to estimate nonuse values for reduc ing IM&E for each species and sum them, the value of reducing IM&E for multiple species is like ly to be greater than the value of preventing losses of a single species. With respect to site-specific BTA entrainment determinations, the Entergy decision by the Supreme Court allows benef its and costs to be considered in 316(b) determinations on a national or site-specific basis, and the final existing facility rule requires the Director to consider costs versus benefits in the site-specific determinations. Note that requiring that costs and benefits be consid ered does not mean that such c onsideration is paramount to the consideration of other factors.

EPA has added the Bay Shore Power Plant mort ality study to the studies it used to model regional IM&E for the analysis of benefits. As noted above, EPA describes fully in the preamble to the final rule that the benefits of the rule justify its costs. Unde r EO 13563, agencies “must take into account benefits and cost, both quantita tive and qualitative,” and to the extent permitted by law, only promulgate regulations that are based on “a reasoned de termination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify).” In choosing among regulatory alternatives, agenci es must select “those approach es that maximize net benefits (including potential economic, environmental, p ublic health and safety, and other advantages; distributive impacts; and equity) to the extent permitted by law,” including when nonmonetized benefits are considered). EPA notes that even if the benefits of the rule or other options are somewhat underestimated, it would not have se lected a uniform national standard based on closed-cycle cooling for entrainment controls, beca use lack of monetized be nefits was not part of the rationale for rejecting closed-cycle as a national BTA basis. See the final preamble for additional information on options selection and the final regulato ry requirements. EPA disagrees that the commenter’s analysis of a decline in bene fits indicates that the rule is ineffective. EPA used the same method of calculatin g IM&E benefits for the final existing facility rule and the Phase II rule. The differences in the estimated IM &E reductions are due to changes in input data, in particular, data on state regulations and tec hnologies in place under the baseline scenario. Since the initial Phase II analys is, State regulations more string ent than the proposed rule have been instituted. Therefore, the estimated reduction in IM&E associated with the national rule for facilities in these states is zero, as are the costs.

Essay 78 396In addition, several facil ities have improved baseline levels of environmental protection, either by newly installing technologies that reduce IM&E, or inst alling improved technologies, including the installation of closed-cycle cooling in seve ral locations; see Technical Development Document for the Final Section 316(b) Existing Faciliti es Rule (DCN 12-0003), Plant McDonough in Georgia (retrofit in 2008), Ca nadys Station in South Carolina (retrofit in 1992), and Nearman Creek in Missouri (retrofit in 2006) for examples of the implementation of closed-cycle cooling for reasons of either Cl ean Water Act Section 316(a) (thermal) or water supply/availability concerns. These changes reduce baseline losses, and thus, the overall reduction in IM&E that will re sult from the final rule.

Finally, EPA has substantially increased the number of model facilities reflected in the benefits analysis since the Phase II analysis from 48 fo r the Phase II rule to 98 for the Final 316(b) Existing Facilities Rule to improve its estimates of IM&E. This change affected EPA’s estimates of total IM&E losses in several study regions and at the national level.

Together, these changes explain the reduced national effects of the final rule when compared to the Phase II rule.

Benefits are Overestimated Other commenters claim that EPA overestimated th e benefits of the final rule. In comment 2458, AES North America, L.P. refers to the Nationa l Benefits of a Closed -Cycle Cooling Retrofit Requirement Report finalized by the Electric Power Research In stitute (EPRI) in August of 2011, finding that many of EPRI’s and EPA’s a ssumptions overstate benefits: assuming 100 percent mortality for entrainment; not accounting for the ability of fish and other aquatic species to compensate for losses of individuals by gene rating large numbers of eggs; not fully accounting for fish that are not likely to survive regardless of I&E; assuming all forage biomass is consumed by harvested species; not accounting for water qualit y benefits of cooling water flow that would be lost; and not accounting for facility closur es for other reasons. AES further outlines assumptions that it states could result in either an over- or underestimate of benefits, such as annual variability, constantly changing fishery conditions, and lack of data.

In comment 2215, Duke Energy Business Servic es, LLC argues that nonuse benefits are independent of any current or an ticipated use of the resource, a nd thus have little connection to I&E at affected facilities, claimi ng it a stretch to include such be nefits when costs are limited to State and Federal administrative agencies , manufacturers, and electric utilities.

In comment 2215, Duke Energy Business Services, LLC stated that EPA chose artificially low discount rates, thereby increasing the value of benefits. The commenter also provided a comparison to personal disc ount rates of fishermen.

In comment 2347, Entergy Corporation states that to ensure that potential benefits are real, not fictional, the final rule should account for cumu lative benefits resulting from use of readily installed technologies over technolog ies with longer installation times.

In comment 2245, Midwest Generation, Edison Mission Energy, LLC states that EPA’s assumption in extrapolating benefits that impingement and entrainment mortality rates recorded at model facilities are representati ve of such rates at other facilit ies in the region is problematic.

Essay 78 397A variety of reasons were offered, including that site-specific consid erations such as debris load and the mix of species impinged or entrained ca n greatly impact the performance of a given facility. The commenter finds that EPA does not pr ovide the data, information regarding the data or the selection of model facili ties, making it difficult to reproduce the data published in the Environmental and Economic Benefits Analysis (EEBA) for the proposed rule. The commenter states that if the data are biased in any way, the monetized benefits wi ll also be biased. The commenter calls for acknowledgement that the rate s of I&E losses at some facilities are very low, and consideration of altern ative measures as well as a site-specific variance provision that would be based on locally estimated adverse environmental impacts and cost and benefit considerations.

EPA understands the uncertainties in the benefits analysis regarding the population dynamics of aquatic species. EPA supports its analysis of be nefits with recent scie ntific lite rature. The cumulative losses from I&E may also have ecosystem effects that EPA has not identified and monetized. EPA disagrees with the comment rega rding not accounting fo r premature facility closures due to economic reasons other than clos ed-cycle cooling retrof its: the analysis of benefits is consistent with the assumptions regarding economic viability and installation of control technologies reflected in the cost analys is. The benefits analysis measures benefits associated with the regulation, and such closures are not cause d by the regulation. EPA has taken into account the demand for electricity in projec ting the benefits of the rule, and if there are premature closures, the electricity that would be generated by that facility must be generated by another facility. However, as described above and in the preamble to the final rule, EPA considered a number of factors not related to benefits and cost s in selecting the option for the final rule.

EPA disagrees that nonuse values have little connec tion to I&E at affected facilities. I&E affects the condition of the resour ce, the existence of which is valu ed by many regardless of use (i.e., nonuse benefits) as demonstrated in focus groups conducted as part of EPA’s stated preference survey. Note also that compliance technology cost s to manufacturers and utilities may be passed on to consumers, and agency costs are borne by taxpayers.

EPA disagrees that it chose low discount rates. EP A discounted the various ca tegories of benefits for comparison to compliance costs, consiste nt with Office of Management and Budget guidance. Such comparisons reflect the time path s for realizing both costs and benefits, and are based on a discount rate reflectiv e of society as a whole as op posed to individual members.

EPA understands the time considerations in realiz ing benefits. As noted by the commenter, EPA developed a time profile for realization of be nefits. EPA developed a similar timeline for compliance technologies. Thus, cumulative be nefits from the use of readily installed technologies as well as technologies associated with long installa tion periods, such as closedcycle cooling, will be reflected appropri ately in both benefits and costs.

EPA disagrees with the comments regarding the in formation on model facilities or I&E data used in the benefits analysis. IM&E data from fac ilities is in the docket for the rulemaking. EPA provides total flow from each region in Chapter 1 of the Benefits Analysis for Final Section 316(b) Existing Facilities Rule (BA; U.S. EPA, 2014; DCN 12-4500 to DCN 12-4700), which allows calculation of average I&E per million gallons per day. The Agency, however, notes that

Essay 78 398the facility input data for the I& E model is treated as Confidentia l Business Information (CBI) in the record because it includes a combination of I&E data and information from the industry survey, which is treated as CBI. Chapter 3 of the BA for the final rule de scribes the use of IM&E data from model facilities and extrapolation of these data to develop regional IM&E estimates; also, Appendix A of the EEBA (U.S. EPA, 2011; DCN 12-5032) describes the extrapolation methods, based on the data noted in the record for the previous rulemakings.

EPA agrees that site-specific variability in IM&E and expected benefits of the rule exist. EPA has incorporated site-specific cons iderations into the final rule through the flexibility provided in the selected options, rather th an a site-specific variance provi sion. As described fully in the preamble to the final rule, EPA provides seven alternatives for compliance with the national impingement mortality standard at existing facilities. The seventh alternative (at 40 CFR 125.94(c)(7)) for complying with the BTA impingem ent mortality standard requires the owner or operator to conduct biological compliance mon itoring to demonstrate compliance with the numeric impingement mortality performance sta ndard. Under this altern ative, the owner or operator has the flexibility to choose any technology, includi ng a new or innovative technology, provided the compliance monitoring dem onstrates the standard is achieved.

EPA is promulgating an entrainment standard based on site-specific entrainment controls determined by the EPA or the State permitting aut hority for existing facilities (other than new units) that withdraw amounts of cooling water that exceed the applicability threshold. Requiring a structured site-specific analysis of candida te BTA technologies for entrainment control will allow the Director to determine where it is approp riate to require such controls. One outcome of the site-specific analysis could be that the Director would dete rmine that no other technologies beyond impingement control meet the criteria for selection as BTA. For example, the Director could determine that no other tech nologies are feasible and/or the benefits do not justify the
costs.

As described in the preamble to the final rule , EPA obtained estimates of regional impingement mortality and entrainment by extrapolating IM&E observed at 97 facilities with IM&E studies (model facilities) to all regulated facilities in the same region. EPA used regional estimates to more accurately estimate impacts by accounting for differences in ecosystems, aquatic species, and characteristics of commercial and recreational fishing activities across regions. EPA extrapolated on the basis of actual intake flow reported for the period 1996–1998 by facilities in response to EPA’s Section 316(b) Detailed Qu estionnaire and Short Te chnical Questionnaire. Because the goal of the analysis is to provide estimates of IM&E at regional and national scales, EPA recognizes that these averag es may not reflect the substan tial variability at individual facilities. In spite of this variability, this extrapolation is a reasonable basis for developing estimates of regional and national benefits.

Essay 78 399

### Essay 81: Loss Metrics

Several commenters criticized EPA’s use of age-one equivalents (A1E), foregone yield, and biomass production foregone as inappropriate. This essay responds to these comments.

The New York State Department of Envir onmental Conservation (NYSDEC; comment 2260) and National Wildlife Federation (comment 2188) s uggest that the use of A1E, Foregone Fishery Yield (FFY), and Biomass Production Foregone (BPF) are inappropriate for establishing a national rule because these metrics do not account for nonuse benefits (e.g., ecosystem processes, food web stability, etc.) associated with the regulation of CWIS. Instead, these commenters state, and Riverkeeper (comment 2391) implies, that the correct metric to use is the raw number of individuals (e.g., the count of all eggs, larvae, juvenile s, and adult fish) lost due to CWIS operation. All comments assert ed that nonuse benefits are the primary benefits to be gained by the rule.

EPA agrees that nonuse benefits are the primary environmental benefits to be achieved as a result of the rule. However, it disagrees with the suggestion that its us e of A1E, FFY, and BPF are not suitable for its analysis . Although nonuse benefits are the pr imary benefits to be gained by the rule, they are not the only benefits to be gained. EPA used FFY and BPF metrics in its estimates of commercial and recreational fishi ng benefits likely to occur following rule implementation (see Chapters 6 and 7 of the BA for further discussion).

In comment 2260, NYDEC argues that the raw number of organisms lo st to IM&E is the correct metric for analysis (a metric presented in A ppendix C of the BA), because it incorporates all adverse environmental impacts caused by CWIS . Additionally, in comment 2188, NWF argues that the use of A1E ignores the importance of early life histor y stages in the ecosystem. EPA disagrees with both commenters, and notes that th e derivation of the A1E metric includes a count of all organisms lost to IM&E (e.g., the metric suggested by NYDEC, including counts of eggs, larvae, juveniles, adult fish, etc.), weighted by the probability of surviv al to age one. Thus, the metric includes all raw organism count data , and acknowledges the im portance of early life history stages in the food ecosy stem, but also recognizes that th e importance of each organism to the ecosystem is not equivalent. For example, an average fish egg plays a substantially less important role in an ecosystem than an adult fish of the same species. This is true when measuring the importance of an individual to inter- and intra-specific competition, population, nutrient and energy flows, and other ecosystem processes.

EPA does not agree with NYDEC (comment 2260) that metrics used in the analyses provide no accounting for nonuse benefits. In the proposed rule, EPA presented a habitat based methodology for estimating nonuse values of fish production. Although not incorporated into the final rule, this analysis explicitly used A1E lo sses to estimate nonuse benefits. Additionally, in the final rule, EPA uses a benefits transfer appr oach to estimate the nonuse benefits of regulation through application of a model that estimates willingness to pay (WTP) for anadromous fish habitat restoration (Zhao et al . 2013; DCN 12-5060). Fina lly, EPA used the A1E metric in the development of a stated preferen ce survey for the final rule to enable nonuse benefits to be incorporated into the benefit-cost comparison (s ee Chapter 11 of the BA for further discussion).

Essay 81 400EPA notes that the extensive focus group testi ng conducted as part of developing the survey demonstrated that the public understood the conc ept of young fish as having value, which can be restated in technical te rms as age-one equivale nts having nonuse value.

Essay 81 401

### Essay 82: Assessment and Extrapolation of Impingement Mortality and
Entrainment

While attempting to estimate national IM&E, EPA faced several difficulties. As was noted in several comments, much of the data used to ge nerate these estimates come from the 1970s and 1980s. EPA recognizes that there have been ma ny changes in the ecosystem over the past decades, and agrees that estimates of IM&E gene rated from modern facili ty-level IM&E studies may produce results that are very different. A dditionally, EPA recognize s that there are many sources of potential error in IM &E studies, the use of age-equiva lent models, and the use of an extrapolation model to estimate lo sses at facilities without studies. However, EPA notes that in each case (with two notable exceptions), commen ters do not provide new data nor do they suggest how the use of available data could be improved.

Data Quality and Age Several commenters (e.g., Riverkeeper: comment 2391; AES: comment 2458) noted that the data used by EPA to extrapolate losses are sometimes d ecades old, and that changes to environmental quality and status of fisherie s insert substantial uncertainty into estimates of IM&E. EPA recognizes that the age and quali ty of IM&E studies used to estimate baseline losses nationally are a major source of uncertaint y, and would have preferred to use more recent studies to estimate regional and national losses. However, the decades-old studies are, in most cases, the only data currently available a nd suitable for extrapolation. As noted by commenters, whenever possible, EPA corrected IM&E loss rates to account for several factors, including the installation of IM&E-reducing technologies (e. g., velocity caps, periodic flow reductions, etc.), seasonality, diel cycles, etc, in order to make these old st udies comparable. However, other quality issues associated with some studies (e.g., not all specie s suffering from IM&E were reported) cannot be corrected, leading to an underest imate of losses for some species. EPA notes, however, that the most commonly captured species we re reported (wheneve r identifiable) in a ll studies, suggesting that any species-level un derestimates are unlikely to have a significant impact on estimates of national IM&E. Regardless of age and quality issues associated with some studies used in regional extrapolation models, th e inclusion of these studies was necessary to obtain the data sufficient to estimate national baseline losses.

Cognizant of the fact that many old IM&E studies have substantial uncertainty, and because EPA’s estimates of baseline loss es propagate through the entire benefit analysis, modern IM&E studies are incorporated into the extrapolation models whenever they have been identified. Additionally, best practices for the use of ag e equivalency and production foregone models (e.g., EPRI report 1008471, DCN 11-6506C) identified in comment 2962 (EPRI) were reviewed, and their recommendations compared against EP A’s approach: no changes were necessary. Furthermore, “default” estimates of fish life history parameters provided by commenters (e.g., EPRI reports 1008832 and 1023103; provided in comment 2962) were compared against parameters used by EPA (as reported by individual f acilities used in extrapolation). In all cases, parameters were very close to ea ch other, and no modifications were made to the values used in extrapolation by EPA.

Essay 82 402In some cases, the incorporation of modern IM&E studies may substa ntially alter regional estimates of losses. For example, within comm ent 2391, Riverkeeper claims fish losses in the Great Lakes region were underestimated by an order of magnitude, based upon a recent (2008), high quality study of IM&E at the Bay Shore power plant. EPA thanks Riverkeeper for identifying this study, which was included in regi onal IM&E calculations us ed in the final rule. The direct result of this study’s incorporation is clear: EPA’s estimates of raw losses for many fish species in the Great Lakes increased by se veral orders of magnitude, despite an overall decrease in baseline intake fl ow (> 15 percent), due to New Yo rk’s state standards requiring closed-cycle cooling at all in-sta te facilities with design intake flow greater than or equal to 20 million gallons per day, many of which ar e in the Great Lakes region (Table 1).

Table 1: Changes in EPA’s estimate of raw losses for several species of fish in the Great Lakes Region (all values in millions of raw losses)

Species Initial Estimate Revised Estimate Walleye < 0.01 25.96 Freshwater Drum 221.27 4,153.88 Logperch 10.48 88.35 White Perch < 0.01 704.63

Without the inclusion of several new studies, howev er, EPA is unable to determine the extent to which new studies would alter regional IM&E estimates in other regions.

Overall, EPA agrees with the comments suggesting that its estimates of baseline fish IM&E are greatly affected due to the (nece ssary) use of old data. However, EPA disagrees that its estimates are unreliable and likely to be an underestimate of baseline lo sses. Although EPA agrees that new data would increase the overall accuracy of regional and national estimates, these data do not exist (but will be collected as a consequence of rule implementation), and EPA has used the best data available when producing estimat es of regional and na tional IM&E losses.

Problems with Age Equivalency Models In addition to the age and data quality issues, co mmenters noted several potential problems with the data used to parameterize the age equivale ncy (e.g., age-one equivalent, or A1E) model to estimate baseline national values of IM&E. These issues include separation of IM&E data into correct life history stages by species , and accurate survivorship factors.

In many IM&E studies used by EPA to estimat e national baseline losses, specific ages of impinged fish were reported. EPA agrees with Riverkeeper (comment 2391) that determining the age of fish can be inexact and time-cons uming. However, EPA notes that age-length relationships are well-established in the fisherie s biology literature, and that such a conversion (either from age to length, or from length to age) was necessary to make all studies comparable. Moreover, EPA notes that age-length relationships are based upon averages. Therefore, the use of such relationships is statis tically unbiased, and therefore may underestimate or overestimate actual ages (and therefore age-equivalent losses).

Essay 82 403As is noted by Riverkeeper in comment 2391, the de termination of accurate survivorship factors is exceptionally difficult. In many cases, survivor ship factors may change annually as a function of natural variability (e .g., of water temperature, sunlight, etc.) and anthropogenic factors (e.g., fishing pressure, water quality, etc). Based upon these (and other) f actors, fish populations vary from year to year, although they are expected to be stable over the long term. Accordingly, although survivorship may vary among years, survi vorship factors are fixed within the model. EPA recognizes that the assumpti on of fixed survivorship factors increases model uncertainty, but that estimates are likely to be unbiasedand that accordingly, the overall direction and magnitude of this uncertainty is unknown. Ho wever, given that EPA used a total of 270 survivorship schedules in its es timation of regional IM&E losses, it is likely that survival is underestimated for some species, overestimated in others, and that ac ross all species, the directional error aggregated acro ss all species is likely to be a small proportion of total losses.

With respect to survivorship factors, comment ers also note that survivorship may vary among sites, particularly at the geographic extremes of species ranges. EPA agrees with this assessment, and notes that the extrapolation model incorporat es multiple survivorship schedules for species with wide-ranging habitat ranges. For example, there are five sepa rate survivorship schedules for Alewife, with one schedule used in each of th e Great Lakes, Inland, and North Atlantic regions, and two schedules used (for north erly and southerly facilities) w ithin the Mid-Atlantic region.

In comment 3006, Entergy suggests that the life stages of fish subject to impingement and entrainment should be considered in the analysis , since the impact to a fish population varies by life history stage. EPA notes that the use of age equivalency models expre ssly takes life history into account, weighting the loss of early life hi story stages (e.g., egg and larval stages) lower than the loss of adult fish. EP A also notes that none of its analyses assess changes in fish populations, and consequently, sugg estions relating to the accura te calculation of changes in local fish populations occurring due to CWIS are not relevant.

Although commenters recognize the u tility of age equivalency models, some noted that they do not take into account for eco logical effects of CWIS operation beyond IM&E. Whenever possible, EPA took broader ecological impacts into account (e.g., the value of forage fish was recognized through the use of trophic transfer), though this was not possible in many cases. For example, EPA acknowledges that there are other effects of CWIS operati on, including flow and thermal alteration, effects on non-aquatic organism s (e.g., birds), and the potential for impacts on decomposers. EPA agrees with Riverkeeper that these effects are poorly studied, are difficult to detect reliably, and may be hidden by other an thropogenic impacts (e.g., fishing, climate change, channelization, nutrient cycling, land use change , etc.). EPA notes, however, that it may be possible to characterize such impacts of CWIS operation at individual facility locations with additional study. Similarly, positive, localized im pacts of CWIS operation (e.g., thermal refugia for manatees, as identified by in comment 2458) may be identified more readily using sitespecific studies.

Biomass Transfer Among Trophic Levels In estimating the benefits of reduced fish kills, EPA assumed a trophic transfer efficiency of 0.10 for all trophic levels. This value indicates that 10 percent of the bioma ss at one trophic level (e.g., forage species) is incorporat ed into the next highest trophi c level (e.g., predatory fish).

Essay 82 404Although EPA recognizes that there may be subs tantial variability am ong habitats, this assumption is derived from the work of Pauly and Christensen (1995; DCN 12-4954) and is used as a baseline assumption by many ecologists when the true underlying trophic dynamics of an ecosystem are unknown.

Notably, the values of trophic efficiency ( TE) compiled by Pauly and Christensen are not habitat-specific, but are specific to trophic levels within spec ific geographic regions (e.g., the 140 estimates of trophic efficiency compiled by Pauly and Christensen (1995) come from 48 food webs). The raw data indicate that there is substantial variability not only among sites within aquatic ecosystem (e.g., freshwater ponds and lakes, coastal areas, shelves and open ocean), but also among trophic levels within sites (e.g., TE w ithin Lake Kinneret varied between 3 and 19 percent) (Christensen and Pauly 1993; DCN 12- 5070). Accordingly, due to the complexity of multi-species food webs and the trophic-level an d location-specific nature of trophic transfer rates, EPA agrees with commente rs that “the efficiency with which food passes from one trophic level to another is very difficult to estimate” a nd is likely to “vary greatly from ecosystem to ecosystem and from species to species.” Given th at (i) species- and ecosystem-specific estimates of trophic transfer efficiency are not available in the l iterature, and (ii) it was not feasible to develop individual estimates at local or region al scales, EPA concluded that the use of an average rate of 10 percent for all regions and trophic interactions was an appropriate choice.

Extrapolation from Facilities to Regions Many facilities subject to the final rule have never conducte d impingement or entrainment studies. Accordingly, to generate regional and national estimates of baseline IM&E losses, EPA was forced to group these stations into regi ons, and extrapolate within these regions. Accordingly, EPA does not report nor estimate facility-level estimates of impingement and entrainment. Site-specific data were, however , used to populate regional loss models. In doing so, EPA incorporated data collected during Phase II and III implementation, and newer data whenever identified. In a ll cases, losses reported in IM&E studies were modified to account for modifications in facility CWIS design, including new IM&E mitigation measures.

EPA notes that because there is a great deal of variability in fish production among sites within regions, these extrapolations are highly uncertain. The direction a nd magnitude of uncertainty in regional-scale model extrapolations, however , are unknown. In some cases, facility IM&E studies were conducted in a ge ographically dispersed manner ove r several decades, and are therefore likely to be unbiased estimators of regional losses. In other cases, however, facilities may have been forced to conduct IM&E studies because of regionally high losses of species or the presence of important commercial and recr eational fish species, in which case the use of these studies is likely to overest imate losses. Although EPA would pr efer not to have to use an extrapolation procedure to esti mate regional and national baselin e losses, such a procedure is necessary given the overall lack of sampling data. Importantly , in comment 2391, Riverkeeper agrees, stating that using extrapolated da ta is “probably the only method available.”

Limitations and Uncertainty EPA acknowledges that its regional and national es timates of IM&E losses are uncertain, and agrees with commenters (e.g., AES in comment 2458, Riverkeeper in comment 2391; Entergy in comment 3006; Midwest Generation in comment 2245) that many factors contribute to this

Essay 82 405uncertainty. Whenever possible, EPA incorporat ed methods to minimize these uncertainties. Uncertainties include (but are not limited to):

 Site-specific field sampling and scaling. This uncertainty is driven by field sampling protocols developed for indivi dual facilities that may miss or capture episodic events. Whenever possible, EPA averaged across annu al IM&E estimates to obtain loss estimates representative of the facili ty. Uncertainties in sampling and site-specific scaling may over- or under-estimate IM&E.

 Site-specific rates of trophic tr ansfer efficiency. As noted ab ove, there is a great deal of variability in trophic transfer efficiency both among species with in ecosystems, and among ecosystems. Although published estimates of trophic transfer efficiency range from approximately 2 to 25 percent, EPA used an estimate of 10 percent for all species and ecosystems. Accordingly, the use of a gl obal mean may over or underestimate true levels of IM&E.

 Species-specific feeding patterns. In its models, EPA assumes that all forage fish species are consumed by harvested species, but recogn izes that this represents an upper bound.

 Species identification. In many cases, it is no t possible to identify organisms to species due to inadequate study, inadequate mo rphological development necessary to differentiate among species (this is particularly true for early life hi story stages), and/or physical damage to organisms caused by impingement or entrainment. When organisms were not identified to species , EPA classified these losses either by species group (e.g., “salmon”), or categorized these losses as “other species.” Miscategorization of individuals will overestimate losses of th e species assigned inappropriately while underestimating losses of the species misassigned. Because of these offsetting values, it is unlikely that inaccurate species identifica tion will meaningfully affect regional or national IM&E estimates.

 Impinged and entrained organism health. In some cases, the health of impinged and entrained organisms may be impaired, or they may be dead upon arrival at the intake. Whenever possible, EPA took organisms health into account. However, the vast majority of facility IM&E studies did not note the health or impinged organisms, and it is not possible to extrapolate organi sm health among facilities.

 Entrainment survival. EPA models entrai nment mortality to be 100 percent, but recognizes that this is an upper bound. Actual entrainment mortality may be less than 100 percent for some facilities, times of year, or species.

 Undercounting. Many facility IM&E studies repo rt that many fish eggs and larvae were damaged by the sampling protocol, and could not reliably identified or even counted. Consequently reported entrainment estimates from facility IM&E studies are likely to be underestimates.

 Periodic nature of mass impingement and entrai nment events. In some facility studies, a high percentage of annual IM&E was observe d in one or two sampling periods. To the extent that these events are included (or mi ssed) in facility sampling protocols, and important to average IM&E by species or region, EPA may over- or underestimate IM&E.

Essay 82 406 Annual variability in loss ra tes driven by changes in loca l fish populations. Whenever possible, EPA obtained multiple years of data for each model facility. However, there are many facilities for which only a single year of data were available. Because fish populations and communities may vary substan tially on an annual basis, IM&E estimates bay be over- or underestimated for individual sp ecies, and for the community as a whole. The direction of this uncer tainty, however, is unknown.

 Changes in life histories driven by populat ion changes. EPA recognizes that survival rates may vary substantially from year to year, based upon changes in food ability, predator density, water temper ature, etc. EPA was unable to account for annual changes in life history parameters. The effect of life history uncertainty is unknown, and may over- or underestimate IM&E losses.

 Changes in waterbody characteristics and populati ons due to the age of facility data. As noted above, EPA incorporated the most recent IM&E studies availa ble, but notes that studies in many areas of the country may be decades old, and fish populations may be substantially different (highe r or lower) than when data were collected. However, the decades-old studies are, in most cases, the only data currently available and suitable for extrapolation. In these cases, actual IM&E losses may be higher or lower than estimated from historical data.

Overall, EPA acknowledges that there are many s ources of uncertainty in the data underlying IM&E estimates, and agrees that regional and na tional estimates of IM&E are highly uncertain. However, the direction of many sources of un certainty is unknown (e.g., uncertainty may result in either over- or under-estimates of IM&E), while other uncert ainties are offsetting (e.g., for some factors, uncertainty will result in over-estimates, while for other factors, uncertainty results in under-estimates). On the whole, and at regi onal and national scales, EPA judges its estimates of IM&E to be unbiased.

Essay 82 407

### Essay 83: Entrainment Mortality

EPA received several comments with respect to entrainment mortality. This essay responds to these comments.

Assumption of 100 Percent Entrainment Mortality Comments by Riverkeeper (comment 2391) were strongly supportive of EPA’s assumption for national modeling, namely that the mortality ra te of entrained organisms is 100 percent. Comments by Entergy, Midwest Generation - Ed ison Mission Energy, AES North America, and EPRI (comments 2347, 2245, 2458, and 2200) are in direct opposition to EPA’s stance, noting that the mortality rate of entrained organi sms will not be 100 percent at all facilities.

Consistent with its treatment of entrainment in past national 316( b) rules, EPA has not changed its long standing views that 100 percent of entr ained organisms suffer mortality. See Essay 18. Commenters failed to provide new information or basis for changing EPA’s position regarding entrainment mortality.

Through-plant entrainment survival has been st udied extensively, with EPRI’s Review of Entrainment Survival Studies being amongst th e most comprehensive. See DCN 2-017A-R7 from the Phase I docket. With respect to the regional and na tional IM&E modeling, EPA notes that facility characteristics relevant to entrainment surv ival (e.g., heat load, biocide concentrations, transit ti me, turbulence and shear stress, etc.) vary among CWIS systems (i.e., at different facilities), and differ throughout the year within CWIS systems (e.g., due to seasonal changes in CWIS operation). The extent to which these factors may affect survival in facilities whose data were used to model entrainm ent remains unknown. Notably, EPA identified no suitably designed studies of entrainment mortalit y that (1) occurred para llel to a suitable entrainment sampling protocol used to develop regional estimates of IM&E, (2) assessed intraannual variability, and (3) assessed entrainment su rvival rates for a sufficient number of species that would justify regional extr apolation to dozens of species.

Second, because fish eggs and larvae are soft bodi ed and are frequently extremely fragile, counts of entrained eggs and larvae (and to a lesser extent, juvenile fish ) are under-counted by studies of entrainment at regulated facilities. Several IM&E reports suggest that entrainment samples may contain a high (but unquantifiable) number of eggs and larvae destroyed by mechanical stress. Thus, uncertain rates of entrainment survival wi ll be offset by similarly uncertain rates of underreporting.

Third, EPA notes that a high propor tion of the studies used to ex trapolate entrainment losses to the regional level may be decades old. To the extent possible, EPA accounted for changes in CWIS operation, design, and the installation of IM&E reducing technologies. However, the extent to which these changes may affect entr ainment survival is unknown. When combined with a poor understanding of existing entrainment mo rtality, these changes make EPA unable to entertain estimates of entrainmen t survival in its calculations.

Essay 83 408Fourth, EPA notes that long-term survival ra tes of entrained organisms (e.g., eggs, larvae, juveniles) due to shock, behavior al d isturbance, and other factors, are dramatically lower than organisms that were never entrained. Thus, su rvival through the cooling water system does not indicate that mortal ity has been avoided.

Consequently, on the basis of the record in formation it has reviewed, EPA concluded for purposes of this rule that no entrained organi sms survive. (See, for example, 76 FR 22188 [April 20, 2011] and 69 FR 41620 [July 9, 2004]. Also see Ch apter A7 of the Phase II Regional Studies Document (DCN 6-0003; EPA-HQ-OW-2002-0049-1490.)

Relevance to the Final Rule and Determination of BTA Although EPA disagrees with commenters th at its modeling assumption of 100 percent entrainment mortality is faulty, these commenters’ concerns are not releva nt for purposes of the final rule because the rule does not establish a specific national numeric entrainment reduction standard. Instead, the rule establishes a national BTA standard for entrainment that requires the establishment of entrainment reduction control meas ures on a site-specific basis in a prescribed permitting setting (see Section VI of the preamble and Essay 15 for additional information).

Moreover, EPA notes that a significant amount of information will be collected and submitted for review as a consequence of rule implementation. Notably, EPA does allow for consideration of entrainment survival: the rule allows for f acilities to demonstrate to the Director that entrainment mortality is less than 100 percent, as long as such a demonstration is general, and therefore not a demonstration speci fic to those species whose eggs and/or larvae are hardier.

Essay 83 409

### Essay 84: Impacts on Threatened and Endangered Species

EPA received several comments with respect to impacts on threatened and endangered species. This essay responds to these comments.

Inability to Account for All Impacts In its comments, the National Wildlife Fede ration (NWF; comment 2188) reiterates many of EPA’s findings with respect to the effects of CWIS on threatened and endangered (T&E) species, and notes that impacts on T&E species are not fully accounted for in the Benefits Analysis (BA). EPA has noted that data and othe r limitations limit EPA’s ability to take effects on T&E species fully into account in its analyses.

Impacts of Regulated Facilities on T&E Species In its comment, NWF (comment 2188) highlights four regulated facilities as causing IM&E of T&E species protected by the ESA: the Contra Costa and Pittsburg power plants in San Francisco Bay, the Indian Point Energy Center (a nuclear power facility) on the Hudson River (NY), and facilities at the Cr ystal River Energy Complex (CREC) in Florida. Although likely chosen by NWF as example facilities, EPA points to the effectiveness of existing regulation in protecting T&E species at these facilities.

The Contra Costa facility has closed. Therefore, it has ceased to be a source of IM&E of T&E species, and any facilities brought online to replace generating capaci ty will not be subject to this rule.

The Pittsburg power plant, located in California, is subject to 316(b) regulations in the State of California. The policy of the California State Wa ter Resources Control Bo ard requires closedcycle cooling for all power plants that withdr aw water from estuaries and coastal waters. Therefore, the facility is subjec t to regulation that significantly reduces IM&E (see Section IX.A of the preamble to this rule for details) of sp ecies generally and T&E species in particular.

The Nuclear Regulatory Commission recently cons ulted with the National Marine Fisheries Services (NMFS) on the effects of the continue d operation of the Indian Point power plant in New York to listed species and designated critic al habitat. In the Bi ological Opinion, NMFS determined that the facility was likely to adversel y affect but unlikely to jeopardize the continued existence of shortnose sturgeon or Atlantic Sturgeon. As part of th is consultation for Indian Point power plant, NMFS included an inci dental take statement (ITS) th at limits incidental take and requires reinitiation of the consultation process if the amount of take exceeds that permitted by the ITS. EPA also notes that Indian Point is subj ect to the 316(b) regulati ons in the State of New York, which have identified closed-cycle cooling as BTA, and will consequently minimize IM&E impacts on shortnose sturgeon (see Section IX .A of the preamble to this rule for details).

CREC, in Florida, has formally consulted with NMFS with respect to the take of T&E turtles. NMFS’s biological opinion conclude d that the continued operation of the CREC is not likely to jeopardize the existence of any of the five T&E turtle species. As a condition of the consultation,

Essay 84 410which included an ITS, CREC must submit annual re ports for the incidental take of sea turtles, and consultation m ust be reinitiated if the ITS if permitted take is exceeded.

Therefore, of the four facilities highlighted by NWF, one is close d, two are subject to state-level regulation that will require th e installation of closed-cycle cooling technologies to minimize IM&E, and two have conducted formal ESA consu ltations. EPA also notes that each of the facilities that remain open will be subject to a dditional requirements to ensure impact on T&E species is minimized, including the identification of all nearby T&E species and/or critical habitat, characterization of source waters, a nd studies of impingement and entrainment.

Potential for IM&E of T&E Species In comment 2223, NewPage Corporation asserts th at the methods EPA uses to determine the potential for T&E loss is flawed because it do es not take into acc ount the life history characteristics of the species at risk, and becau se EPA did not consider the status of these species. Additionally, several comments (2151, 2180, and 2223) requested clarification about the genesis of IM&E rates for listed species, and expressed concern that the IM&E of T&E species may be extrapolated to the regional scale ba sed only upon geographic proximity to facilities reporting IM&E.

EPA disagrees with comment 2223. In Chapter 5 of the BA, EPA presents two methods to estimate the impact of CWIS on T&E species. In the first method, EPA assesses the overlap between CWIS and T&E species. In this analysis , EPA does not assert that all species with habitat overlapping a CWIS are directly harmed, onl y that the potential for harm exists. Potential harm to T&E species may be direct (e.g., IM&E), or indirect (e.g., reduction of prey, changes to physical habitat). Because EPA considered the pote ntial for indirect effects of CWIS operation on T&E species, detailed life history characterist ics of species at risk, other than the use of aquatic habitat, were not direc tly relevant for this analysis . Moreover, since EPA collected habitat data only for T&E species, the status of all species in this analysis was considered explicitly.

The second method used by EPA to estimate CWIS effects on T&E species was to identify all species with documented IM&E. For this analys is, an analysis of life history traits is unnecessary, because EPA presents only sp ecies with documented IM&E, and does not extrapolate results to regional or national scal es. Instead of extrapol ating, EPA aggregates reported facility level IM&E of T&E species, and consequently does not map IM&E to facilities based only on geographic proximity. Two categorie s of T&E species were presented in this analysis: a list of all T&E species with IM&E mo rtality, and a list of orga nisms not identified to species, but whose genus matched T&E species lost at a regulated facility’s CWIS. In this analysis, EPA recognizes that losses matching T& E species’ genus are likel y to be dominated by more common congeners (i.e., species not protected by the ESA).

Therefore, in all analyses presented in the T&E chapter of the BA, EPA takes life history characteristics into consideration when necessary , and explicitly considers the status of all species included in the analysis.

Essay 84 411