Friday,


July 9, 2004


Part II 

Environmental 

Protection Agency 

40 CFR Parts 9, 122 et al. 

National Pollutant Discharge Elimination 

System—Final Regulations To Establish 

Requirements for Cooling Water Intake 

Structures at Phase II Existing Facilities; 

Final Rule 
41576 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9, 122, 123, 124, and 125 

[FRL–7625–9] 

RIN 2040–AD62 

National Pollutant Discharge 

Elimination System—Final Regulations 

to Establish Requirements for Cooling 

Water Intake Structures at Phase II 

Existing Facilities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Today’s final rule implements 

section 316(b) of the Clean Water Act 

(CWA) for certain existing power 

producing facilities that employ a 

cooling water intake structure and are 

designed to withdraw 50 million gallons 

per day (MGD) or more of water from 

rivers, streams, lakes, reservoirs, 

estuaries, oceans, or other waters of the 

United States for cooling purposes. This 

final rule constitutes Phase II of EPA’s 

section 316(b) regulation development 

and establishes national requirements, 

and procedures for implementing those 

requirements, applicable to the location, 

design, construction, and capacity of 

cooling water intake structures at these 

facilities. The rule applies to existing 

facilities that, as their primary activity, 

both generate and transmit electric 

power or generate electric power but 

sell it to another entity for transmission. 

The national requirements, which will 

be implemented through National 

Pollutant Discharge Elimination System 

(NPDES) permits, are based on the best 

technology available to minimize the 

adverse environmental impact 

associated with the use of cooling water 

intake structures. 

Today’s final rule establishes 

performance standards that are 

projected to reduce impingement 

mortality by 80 to 95 percent and, if 

applicable, entrainment by 60 to 90 

percent. With the implementation of 

today’s final rule, EPA intends to 

minimize the adverse environmental 

impact of cooling water intake 

structures by reducing the number of 

aquatic organisms lost as a result of 

water withdrawals associated with these 

structures. 

DATES: This regulation is effective 

September 7, 2004. For judicial review 

purposes, this final rule is promulgated 

as of 1 p.m. Eastern Standard Time 

(EST) on July 23, 2004, as provided in 

40 CFR 23.2. 

ADDRESSES: The docket for today’s final 

rule is available for public inspection at 

the Water Docket in the EPA Docket 

Center, (EPA/DC) EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. 

FOR FURTHER INFORMATION CONTACT: For 

additional technical information contact 

Martha Segall at (202) 566–1041 or 

Debra Hart at (202) 566–6379. The email address for the above contacts is 

rule.316b@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What Entities Are Regulated by This 

Action? 

This final rule applies to Phase II 

existing facilities that are point sources; 

as their primary activity both generate 

and transmit electric power or generate 

electric power for sale to another entity 

for transmission; use or propose to use 

one or more cooling water intake 

structures with a total design intake 

flow of 50 million gallons per day 

(MGD) or more to withdraw water from 

waters of the United States; and use 25 

percent of water withdrawn exclusively 

for cooling water purposes. This rule 

defines ‘‘existing facility’’ as any facility 

that commenced constructions on or 

before January 17, 2002, and any 

modification of, or any addition of a 

unit at such a facility that does not meet 

the definition of a new facility at 

§ 125.83. 

This rule defines the term ‘‘cooling 

water intake structure’’ to mean the total 

physical structure and any associated 

constructed waterways used to 

withdraw cooling water from waters of 

the United States. The cooling water 

intake structure extends from the point 

at which water is withdrawn from the 

surface water source up to, and 

including, the intake pumps. 

Category Examples of regulated entities Standard Industrial Classification (SIC) codes 

North American Industry 

Classification System 

(NAICS) codes 

Federal, State, and Local Government ... Steam electric generating point source 

dischargers that employ cooling water 

intake structures. 

4911 and 493 ..................... 221112, 221113, 221119, 

221121, 221122 

Industry .................................................... Steam electric generating industrial point 

source dischargers that employ cooling water intake structures (this includes utilities and nonutilities). 

4911 and 493 ..................... 221112, 221113, 221119, 

221121, 221122 

This exhibit is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This exhibit 

lists the types of entities that EPA is 

now aware could potentially be 

regulated by this action. Other types of 

entities not listed in the exhibit could 

also be regulated. To determine whether 

your facility is regulated by this action, 

you should carefully examine the 

applicability criteria in § 125.91 of the 

rule. If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed for technical information in the 

preceding FOR FURTHER INFORMATION 

CONTACT section. 

B. How Can I Get Copies of This 

Document and Other Related 

Information? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. OW 2002–0049. The official public 

docket consists of the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action. 

Although a part of the official docket, 

the public docket does not include 

information claimed as Confidential 

Business Information (CBI) or other 

information the disclosure of which is 

restricted by statute. The official public 

docket is the collection of materials that 

is available for public viewing at the 

Water Docket in the EPA Docket Center, 

(EPA/DC) EPA West, Room B102, 1301 

Constitution Ave., NW., Washington, 

DC. The EPA Docket Center Public 

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

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Water Docket is (202) 

566–2426. To view docket materials, 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41577 

please call ahead to schedule an 

appointment. Every user is entitled to 

copy 266 pages per day before incurring 

a charge. The Docket may charge 15 

cents for each page over the 266-page 

limit plus an administrative fee of 

$25.00. 

2. Electronic Access 

You may access this Federal Register 

document electronically through the 

EPA Internet under the ‘‘Federal 

Register’’ listings at http:// 

www.epa.gov/fedrgstr/. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/ 

to view public comments, access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. 

Although not all docket materials may 

be available electronically, you may still 

access any of the publicly available 

docket materials through the docket 

facility identified in section I.B.1. Once 

in the system, select ‘‘search,’’ then key 

in the appropriate docket identification 

number. 

C. Supporting Documentation 

The final regulation is supported by 

three major documents: 

1. Economic and Benefits Analysis for 

the Final Section 316(b) Phase II 

Existing Facilities Rule (EPA–821–R– 

04–005), hereafter referred to as the 

Economic and Benefits Analysis. This 

document presents the analysis of 

compliance costs, closures, energy 

supply effects, and benefits associated 

with the final rule. 

2. Regional Analysis for the Final 

Section 316(b) Phase II Existing 

Facilities Rule (EPA–821–R–04–006), 

hereafter referred to as the Regional 

Analysis Document or the Regional 

Study(ies) Document. This document 

examines cooling water intake structure 

impacts and regulatory benefits at the 

regional level. 

3. Technical Development Document 

for the Final Section 316(b) Phase II 

Existing Facilities Rule (EPA–821–R– 

04–007), hereafter referred to as the 

Technical Development Document. This 

document presents detailed information 

on the methods used to develop unit 

costs and describes the set of 

technologies that may be used to meet 

the final rule’s requirements. 

D. Table of Contents 

I. General Information 

A. What Entities Are Regulated By This 

Action? 

B. How Can I Get Copies Of This Document 

and Other Related Information? 

C. Supporting Documentation 

D. Table of Contents 

II. Scope and Applicability of the Final Rule 

A. What is an ‘‘Existing Facility’’ for 

Purposes of the Section 316(b) Phase II 

Rule 

B. What is ‘‘Cooling Water’’ and What is a 

‘‘Cooling Water Intake Structure?’’ 

C. Is My Facility Covered if it Withdraws 

from Waters of the United States? 

D. Is My Facility Covered if it is a Point 

Source Discharger? 

E. What Cooling Water Use and Design 

Intake Flow Thresholds Result in an 

Existing Facility Being Subject to This 

Rule? 

III. Legal Authority, Purpose, and 

Background of Today’s Regulation 

A. Legal Authority 

B. Purpose of Today’s Regulation 

C. Background 

IV. Environmental Impacts Associated With 

Cooling Water Intake Structures 

V. Description of the Final Rule 

VI. Summary of Most Significant Revisions to 

the Proposed Rule 

A. Data Updates 

B. Regulatory Approach, Calculation 

Baseline, and Measuring Compliance 

VII. Basis for the Final Regulation 

A. Why is EPA Establishing a Multiple 

Compliance Alternative Approach for 

Determining Best Technology Available 

for Minimizing Adverse Environmental 

Impact? 

B. Why and How Did EPA Establish the 

Performance Standards at These Levels? 

C. What Is the Basis for the Five 

Compliance Alternatives That EPA 

Selected for Establishing Best 

Technology Available? 

D. How Has EPA Assessed Economic 

Practicability? 

E. What are the Major Options Considered 

for the Final Rule and Why did EPA 

Reject Them? 

F. What is the Role of Restoration and 

Trading Under Today’s Final Rule? 

VIII. Summary of Major Comments and 

Responses to the Proposed Rule and 

Notice of Data Availability (NODA) 

A. Scope and Applicability 

B. Environmental Impact Associated with 

Cooling Water Intake Structures 

C. Performance Standards 


D. Site-Specific Approach 


E. Implementation 


F. Restoration 


G. Costs 


H. Benefits 


I. EPA Legal Authority 


IX. Implementation 

A. When Does the Final Rule Become 

Effective? 

B. What Information Must I Submit to the 

Director When I Apply for My Reissued 

NPDES Permit? 

C. How Will the Director Determine the 

Appropriate Cooling Water Intake 

Structure Requirements? 

D. What Will I Be Required to Monitor? 

E. How Will Compliance Be Determined? 

F. What Are the Respective Federal, State, 

and Tribal Roles? 

G. Are Permits for Existing Facilities 

Subject to Requirements Under Other 

Federal Statutes? 

H. Alternative Site-Specific Requirements 

X. Engineering Cost Analysis 

A. Technology Cost Modules 

B. Model Facility Cost Development 

C. Facility Flow Modifications 

XI. Economic Analysis 

A. Final Rule Costs 

B. Final Rule Impacts 

XII. Benefits Analysis 

A. Introduction 

B. Regional Study Design 

C. The Physical Impacts of Impingement 

and Entrainment 

D. National Benefits of Rule 

E. Other Considerations 

XIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 


D. Unfunded Mandates Reform Act 


E. Executive Order 13132: Federalism 


F. Executive Order 13175: Consultation 


and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Executive Order 13158: Marine 

Protected Areas 

L. Congressional Review Act 

II. Scope and Applicability of the Final 

Rule 

This rule applies to owners and 

operators of existing facilities, as 

defined in § 125.93 of today’s rule that 

meet all of the following criteria: 

• The facility’s primary activity is to 

generate electric power. The facility 

either transmits the electric power itself, 

or sells the electric power to another 

entity for transmission; 

• The facility is a point source that 

uses or proposes to use one or more 

cooling water intake structures, 

including a cooling water intake 

structure operated by an independent 

supplier that withdraws water from 

waters of the United States and provides 

cooling water to the facility by any sort 

of contract or other arrangement; 

• The cooling water intake 

structure(s) withdraw(s) cooling water 

from waters of the United States and at 

least twenty-five (25) percent of the 

water withdrawn is used exclusively for 

cooling purposes measured on an 

average annual basis; 

• The facility is a point source; and 

• The cooling water intake structures 

have a total design intake flow of 50 
41578 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

million gallons per day (MGD) or 

greater. 

In the case of a Phase II existing 

facility that is co-located with a 

manufacturing facility, only that portion 

of the cooling water flow that is used by 

the Phase II facility to generate 

electricity for sale to another entity will 

be considered when determining 

whether the 50 MGD and 25 percent 

criteria are met. Facilities subject to this 

final rule are referred to as ‘‘Phase II 

existing facilities.’’ Existing facilities 

with design flows below the 50 MGD 

threshold, as well as most existing 

manufacturing facilities, offshore 

seafood processors, and offshore and 

coastal oil and gas extraction facilities 

are not subject to this rule. Those 

facilities have different characteristics 

as compared to the large, powergenerating facilities subject to today’s 

rule. If an existing facility is a point 

source and has or is required to have an 

NPDES permit, but does not meet the 

applicability thresholds in today’s rule, 

it is subject to permit conditions 

implementing section 316(b) of the 

CWA set by the permit director on a 

case-by-case basis, using best 

professional judgment. EPA expects to 

address at least some of these facilities 

in a separate rulemaking, referred to as 

Phase III. 

In the preamble to the proposed rule 

EPA indicated that its intent was to 

exclude from regulation under the Phase 

II rule existing facilities whose primary 

business is manufacturing. See, e.g., 67 

FR 17124 (April 9, 2002). At the same 

time, in § 125.91(a)(3) of the proposed 

rule, the applicability criteria covered 

facilities that both generate and transmit 

electric power, or generate electric 

power but sell it to another entity for 

transmission. Numerous commenters 

indicated concerns that, as proposed, 

§ 125.91(a)(3) would not clearly exclude 

all existing manufacturing facilities 

from the Phase II rule since some 

facilities generate electric power 

primarily for their own use, but transmit 

or sell any surplus. Therefore, for the 

final rule, EPA revised § 125.91 so that 

it reaches only those existing facilities 

that generate and transmit or sell 

electric power as their primary activity. 

The final rule does not apply to existing 

manufacturing facilities, including 

manufacturing facilities that generate 

power for their own use and transmit 

any surplus power, or sell it for 

transmission, provided the primary 

activity of the facility is not electric 

power generation. 

A. What Is an ‘‘Existing Facility’’ for 

Purposes of the Section 316(b) Phase II 

Rule? 

In today’s rule, EPA is defining the 

term ‘‘existing facility’’ to include any 

facility that commenced construction as 

described in 40 CFR 122.29(b)(4) 1 on or 

before January 17, 2002. EPA 

established January 17, 2002 as the date 

for distinguishing new facilities from 

existing ones because that is the 

effective date of the Phase I new facility 

rule. In addition, EPA is defining the 

term ‘‘existing facility’’ in this rule to 

include modifications and additions to 

such facilities, the construction of 

which commences after January 17, 

2002, that do not meet the definition of 

a new facility at 40 CFR 125.83, the 

definition used to define the scope of 

the Phase I rule. That definition states: 

‘‘New facility means any building, 

structure, facility, or installation that meets 

the definition of a ‘new source’ or ‘new 

discharger’ in [other NPDES regulations] and 

is a greenfield or stand-alone facility; 

commences construction after January 17, 

2002; and uses either a newly constructed 

cooling water intake structure, or an existing 

cooling water intake structure whose design 

capacity is increased to accommodate the 

intake of additional cooling water. New 

facilities include only ‘greenfield’ and ‘standalone’ facilities. A greenfield facility is a 

facility that is constructed at a site at which 

no other source is located or that totally 

replaces the process or production 

equipment at an existing facility (see 40 CFR 

122.29(b)(1)(i) and (ii). A stand-alone facility 

is a new, separate facility that is constructed 

on property where an existing facility is 

located and whose processes are 

substantially independent of the existing 

facility at the same site (see 40 CFR 

122.29(b)(1)(iii). New facility does not 

include new units that are added to a facility 

for purposes of the same general industrial 

operation (for example, a new peaking unit 

at an electrical generating station).’’ 2 

1 Construction is commenced if the owner or 

operator has undertaken certain installation and site 

preparation activities that are part of a continuous 

on-site construction program, and it includes 

entering into certain specified binding contractual 

obligations as one criterion (40 CFR 122.29(b)(4)). 

2 The Phase I rule also listed examples of facilities 

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

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

numbered paragraphs. These read as follows: 

‘‘(1) Examples of ‘new facilities’ include, but are 

not limited to: the following scenarios: 

(i) A new facility is constructed on a site that has 

never been used for industrial or commercial 

activity. It has a new cooling water intake structure 

for its own use. 

(ii) A facility is demolished and another facility 

is constructed in its place. The newly-constructed 

facility uses the original facility’s cooling water 

intake structure, but modifies it to increase the 

design capacity to accommodate the intake of 

additional cooling water. 

(iii) A facility is constructed on the same property 

as an existing facility, but is a separate and 

The preamble to the final Phase I rule 

discusses this definition at 66 FR 65256; 

65258–65259; 65285–65287, December 

18, 2001. 

EPA included in its Phase II proposed 

rule a freestanding definition of 

‘‘existing facility.’’ That definition read 

as follows: 

‘‘Existing facility means any facility 

that commenced construction before 

January 17, 2002; and 

(1) Any modification of such a 

facility; 

(2) Any addition of a unit at such a 

facility for purposes of the same 

industrial operation; 

(3) Any addition of a unit at such a 

facility for purposes of a different 

industrial operation, if the additional 

unit uses an existing cooling water 

intake structure and the design capacity 

of the intake structure is not increased; 

or 

(4) Any facility constructed in place 

of such a facility, if the newly 

constructed facility uses an existing 

cooling water intake structure whose 

design intake flow is not increased to 

accommodate the intake of additional 

cooling water.’’ 67 FR 17221. 

Upon further consideration, EPA has 

decided that it would be clearest to 

define existing facility primarily by 

stating that any facility that is not a new 

facility under 40 CFR 125.83 is an 

existing facility for purposes of this 

subpart. Accordingly, the language in 

this final rule is intended to be clear and 

consistent with EPA’s definition of new 

facility in the Phase I rule at 40 CFR 

125.83. In addition, the definition in 

today’s regulation is also intended to 

ensure that sources excluded from the 

definition of new facility in the Phase I 

rule are captured by the definition of 

existing facility for the purposes of 

today’s rule. At the same time, EPA 

believes that the approach taken in 

independent industrial operation. The cooling 

water intake structure used by the original facility 

is modified by constructing a new intake bay for the 

use of the newly constructed facility or is otherwise 

modified to increase the intake capacity for the new 

facility. 

(2) Examples of facilities that would not be 

considered a ‘new facility’ include, but are not 

limited to, the following scenarios: 

(i) A facility in commercial or industrial 

operation is modified and either continues to use 

its original cooling water intake structure or uses a 

new or modified cooling water intake structure. 

(ii) A facility has an existing intake structure. 

Another facility (a separate and independent 

industrial operation), is constructed on the same 

property and connects to the facility’s cooling water 

intake structure behind the intake pumps, and the 

design capacity of the cooling water intake structure 

has not been increased. This facility would not be 

considered a ‘new facility’ even if routine 

maintenance or repairs that do not increase the 

design capacity were performed on the intake 

structure.’’ 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41579 

today’s rule is identical in terms of 

effect to the approach in the proposed 

rule. Thus, the approach taken in 

today’s final rule is in no way intended 

to change the scope of the rule as 

compared with the proposal as far as the 

facilities treated as ‘‘existing’’ facilities 

under the rule. The change is in drafting 

technique, not in meaning. 

The facility encompassed by today’s 

regulation is the point source that uses 

a cooling water intake structure to 

generate electric power. This is because 

the requirements of CWA section 316(b) 

are implemented through NPDES 

permits, which are issued only to point 

source dischargers of pollutants to 

waters of the United States. A point 

source generating electric power would 

be subject to Phase I or Phase II even if 

the cooling water intake structure it uses 

is located elsewhere. Similarly, 

modifications or additions to the 

cooling water intake structure (or even 

the total replacement of an existing 

cooling water intake structure with a 

new one) does not convert an otherwise 

unchanged existing facility into a new 

facility, regardless of the purpose of 

such changes (e.g., to comply with 

today’s rule or to increase capacity). 

Rather, the determination as to whether 

a facility is new or existing focuses on 

the power-generating point source itself, 

i.e., whether it is a greenfield facility or 

a stand-alone facility. This focus on the 

point source discharger is consistent 

with section 316(b), which by its 

express terms applies only to point 

sources. 

Under this rule, an existing power 

generating facility that uses a cooling 

water intake structure and repowers by 

either replacing or modifying an 

existing generating unit would remain 

subject to regulation as a Phase II 

existing facility, unless the existing 

facility were completely demolished 

and another facility constructed in its 

place that used either a new intake 

structure or the existing structure with 

an increased design capacity. For 

example, the following facility 

modifications or additions would result 

in a facility being characterized as an 

existing facility under today’s rule: 

• An existing power generating 

facility undergoes a modification of its 

process short of total replacement of the 

process and concurrently increases the 

design capacity of its existing cooling 

water intake structures; 

• An existing power generating 

facility builds a new process at its site 

for purposes of the same industrial 

operation and concurrently increases 

the design capacity of its existing 

cooling water intake structures; 

• An existing power generating 

facility completely rebuilds its process 

but uses the existing cooling water 

intake structure with no increase in 

design capacity. 

Phase II existing facilities subject to 

today’s rule include point sources that 

do not presently use, but propose to use, 

cooling water intake structures and do 

not meet the definition of new facility 

at § 125.83. This is appropriate because 

there may be some cases in which an 

existing facility historically withdrew 

its cooling water from a municipal or 

other source, but then decides to 

withdraw cooling water from a water of 

the United States. In these cases, the 

facility may not previously have met all 

of the criteria applicable to an existing 

facility under today’s rule (i.e., the 

facility did not previously withdraw 

cooling waters from a water of the 

United States) but may make changes 

that would place the facility within the 

scope of today’s rule. A comparable 

situation would be when a facility 

previously relied on units that do not 

require cooling water, and then adds or 

modifies a unit for purposes of the same 

industrial operation (i.e., power 

generation) such that cooling water is 

subsequently required. For example, an 

existing power generating facility that 

adds a new generating unit at the same 

site for purposes of repowering and 

concurrently increases the design 

capacity of its existing cooling water 

intake structure(s), or adds a new intake 

structure where it did not previously 

need one, for example when converting 

a gas turbine to a combined cycle unit, 

would be considered an existing facility. 

In the preamble to the Phase I rule, 

EPA noted that it had defined ‘‘existing 

facility’’ in a manner consistent with 

existing NPDES regulations with a 

limited exception. EPA noted that it had 

generally deferred regulation of new 

sources constructed on a site at which 

an existing source is located until the 

Agency had completed analysis of its 

survey data on existing facilities. 66 FR 

65286. Accordingly, the Phase I rule 

treated almost all changes to existing 

facilities for purposes of the same 

industrial operation as existing 

facilities. These included the addition of 

new generating units at the same site, 

even where they required an increase in 

cooling water intake structure design 

capacity or the construction of a new 

cooling water intake structure, as well 

as the complete demolition of an 

existing facility and its replacement 

with a new facility, so long as it did not 

increase the design capacity of the 

cooling water intake structure. The only 

exception was the demolition of an 

existing facility and its replacement 

with a new facility accompanied by an 

increase in design capacity of the 

cooling water intake structure. As the 

preamble explained: ‘‘The definition of 

a new facility in the final rule applies 

to a facility that is repowered only if the 

existing facility has been demolished 

and another facility is constructed in its 

place, and modifies the existing cooling 

water intake structure to increase the 

design intake capacity.’’ Id.2a By 

contrast, 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 intake flow was not 

increased. 

The Phase II proposed rule continued 

this approach in its definition of 

‘‘existing facility.’’ It continued to treat 

all changes to existing facilities for 

purposes of the same industrial 

operation as an existing facility unless 

the change was a complete demolition 

and replacement of the facility 

accompanied by an increase in cooling 

water intake design capacity. It also 

continued to treat the addition of new 

units for purposes of a different 

industrial operation differently, only 

allowing them to be ‘‘existing facilities’’ 

if they used an existing cooling water 

intake structure and did not increase its 

design intake flow. 67 FR 17221. In 

putting forth this proposed definition, 

EPA noted that it had collected data 

from a variety of sources, including 

survey data, specifically relating to 

repowering facilities. Id. at 17131– 

17135. It also made a point of 

explaining the wide variety of 

repowering activities that an existing 

facility could undertake under the 

proposed rule—anything short of 

demolition of an existing facility and its 

replacement with a new facility 

combined with increasing the design 

capacity of a cooling water intake 

structure—while still being regulated as 

an ‘‘existing facility’’ rather than a ‘‘new 

facility.’’ Id. at 17128. 

On the basis of the analysis of the 

survey data and other information in the 

record, the Agency now has concluded 

that it should adhere to its provisional 

2a Because they are part of the same ‘‘industrial 

operation,’’ such units are not ‘‘stand-alone’’ 

facilities for purposes of the ‘‘new facility’’ 

definition. As the fifth sentence of the definition of 

‘‘new facility’’ explains, they are categorically 

treated as ‘‘existing facilities’’ regardless of any 

other considerations unless they completely replace 

an existing facility and its cooling water design 

intake capacity is increased. Accordingly, there is 

thus no need to make a determination whether they 

are ‘‘substantially independent’’ of the existing 

facility at the same site under the fourth sentence 

of the definition in order to determine whether they 

are ‘‘existing’’ or ‘‘new facilities.’’ The fifth sentence 

alone controls that question. 
41580 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

decision generally giving wide latitude 

to existing facilities to make changes or 

additions to their facilities at the same 

site. In particular, new units that are 

added to a facility for purposes of the 

same general industrial operation 

should be treated as existing facilities 

because limitations associated with an 

existing site make it inappropriate to 

subject such units to new facility 

requirements. These limitations include 

space, existing location on a waterbody, 

location in already congested areas 

which could affect (if Phase 1 

requirements were applied) visibility 

impairment, highway and airport safety 

issues, noise abatement issues, salt drift 

and corrosion problems and additional 

energy requirements. Moreover, power 

generation facilities should not be 

discouraged from making any upgrade, 

modification, or repowering that would 

increase energy efficiency or supply out 

of concern that they would be 

considered a new facility for purposes 

of section 316(b). Additional benefits 

will be realized in terms of reducing 

industrial sprawl if incremental power 

generation is not discouraged at existing 

power generation sites. These 

considerations counsel in favor of 

treating new units locating at existing 

sites as existing rather than new 

facilities. EPA also noted when it 

promulgated the Phase I rule (see 66 FR 

65286) that it is not feasible for the 

permit authority to judge whether the 

facility could have been located 

elsewhere for the purpose of 

determining whether the facility is 

subject to the new facility rules. 

Accordingly, EPA has decided to retain 

the Phase I definition’s provision that a 

new facility does not include new units 

that are added to a facility for purposes 

of the same general industrial operation. 

As noted above, this decision is fully 

consistent with the approach to this 

issue laid out in the proposed Phase II 

rule. 

The final rule definition of ‘‘existing 

facility’’ is sufficiently broad that it 

encompasses facilities that will be 

addressed under the Phase III rule (e.g., 

existing power generating facilities with 

design flows below the 50 MGD 

threshold, certain existing 

manufacturing facilities, seafood 

processors, and offshore and coastal oil 

and gas extraction facilities). EPA notes, 

however, that these facilities are not 

covered under this rule because they do 

not meet the requirements of § 125.91. 

B. What Is ‘‘Cooling Water’’ and What 

Is a ‘‘Cooling Water Intake Structure?’’ 

Today’s rule adopts for Phase II 

existing facilities the same definition of 

a ‘‘cooling water intake structure’’ that 

applies to new facilities. A cooling 

water intake structure is defined as the 

total physical structure and any 

associated constructed waterways used 

to withdraw cooling water from waters 

of the United States. Under the 

definition in today’s rule, the cooling 

water intake structure extends from the 

point at which water is withdrawn from 

the surface water source up to, and 

including, the intake pumps. Today’s 

rule adopts the new facility rule’s 

definition of ‘‘cooling water’’: Water 

used for contact or noncontact cooling, 

including water used for equipment 

cooling, evaporative cooling tower 

makeup, and dilution of effluent heat 

content. The definition specifies that the 

intended use of cooling water is to 

absorb waste heat rejected from the 

processes used, or auxiliary operations 

on the facility’s premises. The definition 

also indicates that water used in a 

manufacturing process either before or 

after it is used for cooling is process 

water for both cooling and non-cooling 

purposes and would not be considered 

cooling water for purposes of 

determining whether 25 percent or more 

of the flow is cooling water. This 

clarification is necessary because 

cooling water intake structures typically 

bring water into a facility for numerous 

purposes, including industrial 

processes; use as circulating water, 

service water, or evaporative cooling 

tower makeup water; dilution of effluent 

heat content; equipment cooling; and air 

conditioning. EPA notes that this 

clarification does not change the fact 

that only the intake water used 

exclusively for cooling purposes is 

counted when determining whether the 

25 percent threshold in § 125.91(a)(4) is 

met. 

This definition of ‘‘cooling water 

intake structure’’ differs from the 

definition provided in the 1977 Draft 

Guidance for Evaluating the Adverse 

Impact of Cooling Water Intake 

Structures on the Aquatic Environment: 

Section 316(b) P.L. 92–500 (U.S. EPA, 

1977). The final rule definition clarifies 

that the cooling water intake structure 

includes the physical structure that 

extends from the point at which water 

is withdrawn from the surface water up 

to and including the intake pumps. 

Inclusion of the term ‘‘associated 

constructed waterways’’ in today’s rule 

is intended to clarify that the definition 

includes those canals, channels, 

connecting waterways, and similar 

structures that may be built or modified 

to facilitate the withdrawal of cooling 

water. The explicit inclusion of the 

intake pumps in the definition reflects 

the key role pumps play in determining 

the capacity (i.e., dynamic capacity) of 

the intake. These pumps, which bring in 

water, are an essential component of the 

cooling water intake structure since 

without them the intake could not work 

as designed. 

C. Is My Facility Covered if It Withdraws 

From Waters of the United States? 

The requirements finalized today 

apply to cooling water intake structures 

that have the design capacity to 

withdraw amounts of water equal to or 

greater than the specified intake flow 

threshold from ‘‘waters of the United 

States.’’ Waters of the United States 

include the broad range of surface 

waters that meet the regulatory 

definition at 40 CFR 122.2, which 

includes lakes, ponds, reservoirs, 

nontidal rivers or streams, tidal rivers, 

estuaries, fjords, oceans, bays, and 

coves. These potential sources of 

cooling water may be adversely affected 

by impingement and entrainment. 

Some facilities discharge heated water 

to cooling ponds, then withdraw water 

from the ponds for cooling purposes. 

EPA recognizes that cooling ponds may, 

in certain circumstances, constitute part 

of a closed-cycled cooling system. See, 

e.g., 40 CFR 125.83. However, EPA does 

not intend this rule to change the 

regulatory status of cooling ponds. 

Cooling ponds are neither categorically 

included nor categorically excluded 

from the definition of ‘‘waters of the 

United States’’ at 40 CFR 122.2. EPA 

interprets 40 CFR 122.2 to give permit 

writers discretion to regulate cooling 

ponds as ‘‘waters of the United States’’ 

where cooling ponds meet the definition 

of ‘‘waters of the United States.’’ The 

determination whether a particular 

cooling pond is or is not a water of the 

United States is to be made by the 

permit writer on a case-by-case basis, 

informed by the principles enunciated 

in Solid Waste Agency of Northern Cook 

County (SWANCC) v. U.S. Army Corps 

of Engineers, 531 U.S. 159 (2001). 

Therefore, facilities that withdraw 

cooling water from cooling ponds that 

are waters of the United States and that 

meet today’s other criteria for coverage 

(including the requirement that the 

facility has or will be required to obtain 

an NPDES permit) are subject to today’s 

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

of Engineers have jointly issued 

jurisdictional guidance concerning the 

term ‘‘waters of the United States’’ in 

light of the Supreme Court’s decision in 

Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of 

Engineers, 531 U.S. 159 (2001) 

(SWANCC). A copy of that guidance 

was published as an Appendix to an 

Advanced Notice of Proposed 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41581 

Rulemaking on the definition of the 

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

1991 (January 15, 2003), and may be 

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

wetlands/ANPRM-FR.pdf). Section 

125.91(d) also provides, similar to the 

new facility rule, that facilities that 

obtain cooling water from a public water 

system or use treated effluent are not 

deemed to be using a cooling water 

intake structure for purposes of this 

rule. 

D. Is My Facility Covered if It Is a Point 

Source Discharger? 

Today’s rule applies only to facilities 

that are point sources (i.e., have an 

NPDES permit or are required to obtain 

one) because they discharge or might 

discharge pollutants, including storm 

water, from a point source to waters of 

the Unites States. This is the same 

requirement EPA included in the Phase 

I new facility rule at 40 CFR 

125.81(a)(1). Requirements for 

complying with section 316(b) will 

continue to be applied through NPDES 

permits. 

Based on the Agency’s review of 

potential Phase II existing facilities that 

employ cooling water intake structures, 

the Agency anticipates that most 

existing power generating facilities that 

will be subject to this rule will control 

the intake structure that supplies them 

with cooling water, and discharge some 

combination of their cooling water, 

wastewater, and storm water to a water 

of the United States through a point 

source regulated by an NPDES permit. 

In this scenario, the requirements for the 

cooling water intake structure will be 

specified in the facility’s NPDES permit. 

In the event that a Phase II existing 

facility’s only NPDES permit is a general 

permit for storm water discharges, the 

Agency anticipates that the Director 

would write an individual NPDES 

permit containing requirements for the 

facility’s cooling water intake structure. 

Alternatively, requirements applicable 

to cooling water intake structures could 

be incorporated into general permits. If 

requirements are placed into a general 

permit, they must meet the criteria set 

out at 40 CFR 122.28. 

The Agency also recognizes that some 

facilities that have or are required to 

have an NPDES permit might not own 

and operate the intake structure that 

supplies their facility with cooling 

water. For example, electric powergenerating facilities operated by 

separate entities might be located on the 

same, adjacent, or nearby property(ies); 

one of these facilities might take in 

cooling water and then transfer it to 

other facilities prior to discharge of the 

cooling water to a water of the United 

States. Section 125.91(c) of today’s rule 

addresses such a situation. It provides 

that use of a cooling water intake 

structure includes obtaining cooling 

water by any sort of contract or 

arrangement with one or more 

independent suppliers of cooling water 

if the supplier or suppliers withdraw 

water from waters of the United States 

but that is not itself a Phase II existing 

facility. This provision is intended to 

prevent facilities from circumventing 

the requirements of today’s rule by 

creating arrangements to receive cooling 

water from an entity that is not itself a 

Phase II existing facility. 

In addressing facilities that have or 

are required to have an NPDES permit 

that do not directly control the intake 

structure that supplies their facility with 

cooling water, section 125.91(d) also 

provides, similar to the new facility 

rule, that facilities that obtain cooling 

water from a public water system or use 

treated effluent are not deemed to be 

using a cooling water intake structure 

for purposes of this rule. 

As EPA stated in the preamble to the 

final Phase I rule (66 FR 65256 

December 18, 2001), the Agency 

encourages the Director to closely 

examine scenarios in which a facility 

withdraws significant amounts of 

cooling water from waters of the United 

States but is not required to obtain an 

NPDES permit. As appropriate, the 

Director should apply other legal 

requirements, such as section 404 or 401 

of the Clean Water Act, the Coastal Zone 

Management Act, the National 

Environmental Policy Act, the 

Endangered Species Act, or similar State 

or Tribal authorities to address adverse 

environmental impact caused by cooling 

water intake structures at those 

facilities. 

E. What Cooling Water Use and Design 

Intake Flow Thresholds Result in an 

Existing Facility Being Subject to This 

Rule? 

This final rule applies to existing 

facilities that are point sources and use 

cooling water intake structures that (1) 

withdraw cooling water from waters of 

the United States and use at least 

twenty-five (25) percent of the water 

withdrawn exclusively for cooling 

purposes, and (2) have a total design 

intake capacity of 50 MGD or more 

measured on an average annual basis 

(see § 125.91). Today’s rule further 

provides that where a Phase II existing 

facility is co-located with a 

manufacturing facility, only that portion 

of the cooling water intake flow that is 

used by the Phase II facility to generate 

electricity for sale to another entity will 

be considered for purposes of 

determining whether the 50 MGD and 

25 percent criteria have been exceeded. 

EPA chose the 50 MGD threshold to 

focus the rule on the largest existing 

power generating facilities. EPA 

estimates that the 50 MGD threshold 

will subject approximately 543 of 902 

(60 percent) existing power generating 

facilities to this final rule and will 

address approximately 90 percent of the 

total flow withdrawn by these facilities. 

EPA established the 50 MGD threshold 

because the regulation of existing 

facilities with flows of 50 MGD or 

greater in Phase II will address those 

existing power generating facilities with 

the greatest potential to cause or 

contribute to adverse environmental 

impact. In addition, EPA has limited 

data on impacts at facilities 

withdrawing less than 50 MGD. 

Deferring regulation of such facilities to 

Phase III provides an additional 

opportunity for the Agency to collect 

impingement and entrainment data for 

these smaller facilities. 

Similarly, because Phase II existing 

facilities typically use far more than 25 

percent of the water they withdraw for 

cooling purposes, EPA established the 

25 percent threshold to ensure that 

nearly all cooling water and the largest 

existing facilities using cooling water 

intake structures are addressed by 

today’s requirements. As in the Phase I 

rule, water used for both cooling and 

non-cooling purposes does not count 

towards the 25 percent threshold. Thus, 

the rule does not discourage the reuse 

of cooling water as process water or vice 

versa. Water that serves as cooling water 

but is either previously or subsequently 

used as process water is not considered 

cooling water for purposes of 

determining the percentage of the water 

withdrawn that is used for cooling and 

whether that percentage equals or 

exceeds 25 percent. Water withdrawn 

for non-cooling purposes includes water 

withdrawn for warming by liquified 

natural gas facilities and water 

withdrawn for public water systems by 

desalinization facilities. 

III. Legal Authority, Purpose, and 

Background of Today’s Regulation 

A. Legal Authority 

Today’s final rule is issued under the 

authority of sections 101, 301, 304, 308, 

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

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

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

1370. This rule partially fulfills the 

obligations of the U.S. Environmental 

Protection Agency (EPA) under a 

consent decree in Riverkeeper, Inc. v. 

Leavitt, No. 93 Civ. 0314, (S.D.N.Y). 
41582 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

B. Purpose of Today’s Regulation 

Section 316(b) of the CWA provides 

that any standard established pursuant 

to section 301 or 306 of the CWA and 

applicable to a point source must 

require that the location, design, 

construction, and capacity of cooling 

water intake structures reflect the best 

technology available (BTA) for 

minimizing adverse environmental 

impact. Today’s rule establishes 

requirements reflecting the best 

technology available for minimizing 

adverse environmental impact, 

applicable to the location, design, 

construction, and capacity of cooling 

water intake structures at Phase II 

existing power generating facilities that 

have the design capacity to withdraw at 

least fifty (50) MGD of cooling water 

from waters of the United States and use 

at least twenty-five (25) percent of the 

water they withdraw exclusively for 

cooling purposes. 

C. Background 

1. The Clean Water Act 

The Federal Water Pollution Control 

Act, also known as the Clean Water Act 

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

‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

nation’s waters.’’ 33 U.S.C. 1251(a). The 

CWA establishes a comprehensive 

regulatory program, key elements of 

which are (1) a prohibition on the 

discharge of pollutants from point 

sources to waters of the United States, 

except as authorized by the statute; (2) 

authority for EPA or authorized States 

or Tribes to issue National Pollutant 

Discharge Elimination System (NPDES) 

permits that regulate the discharge of 

pollutants; (3) requirements for 

limitations in NPDES permits based on 

effluent limitations guidelines and 

standards and water quality standards. 

Today’s rule implements section 

316(b) of the CWA as it applies to 

‘‘Phase II existing facilities’’ as defined 

in this rule. Section 316(b) addresses the 

adverse environmental impact caused 

by the intake of cooling water, not 

discharges into water. Despite this 

special focus, the requirements of 

section 316(b) are closely linked to 

several of the core elements of the 

NPDES permit program established 

under section 402 of the CWA to control 

discharges of pollutants into navigable 

waters. For example, while effluent 

limitations apply to the discharge of 

pollutants by NPDES-permitted point 

sources to waters of the United States, 

section 316(b) applies to facilities 

subject to NPDES requirements that 

withdraw water from waters of the 

United States for cooling and that use a 

cooling water intake structure to do so. 

Section 402 of the CWA provides 

authority for EPA or an authorized State 

or Tribe to issue an NPDES permit to 

any person discharging any pollutant or 

combination of pollutants from a point 

source into waters of the United States. 

Forty-five States and one U.S. territory 

are authorized under section 402(b) to 

administer the NPDES permitting 

program. NPDES permits restrict the 

types and amounts of pollutants, 

including heat, that may be discharged 

from various industrial, commercial, 

and other sources of wastewater. These 

permits control the discharge of 

pollutants primarily by requiring 

dischargers to meet effluent limitations 

established pursuant to section 301 or 

section 306. Effluent limitations may be 

based on promulgated Federal effluent 

limitations guidelines, new source 

performance standards, or the best 

professional judgment of the permit 

writer. Limitations based on these 

guidelines, standards, or best 

professional judgment are known as 

technology-based effluent limits. Where 

technology-based effluent limits are 

inadequate to ensure attainment of 

water quality standards applicable to 

the receiving water, section 301(b)(1)(C) 

of the Clean Water Act requires permits 

to include more stringent limits based 

on applicable water quality standards. 

NPDES permits also routinely include 

monitoring and reporting requirements, 

standard conditions, and special 

conditions. In addition, NPDES permits 

contain conditions to implement the 

requirements of section 316(b). Section 

301 of the CWA prohibits the discharge 

of any pollutant by any person, except 

in compliance with specified statutory 

requirements, including section 402. 

Section 510 of the Clean Water Act 

provides, that except as provided in the 

Clean Water Act, nothing in the Act 

shall (1) preclude or deny the right of 

any State or political subdivision 

thereof to adopt or enforce any 

requirement respecting control or 

abatement of pollution; except that if a 

limitation, prohibition or standard of 

performance is in effect under the Clean 

Water Act, such State or political 

subdivision may not adopt or enforce 

any other limitation prohibition or 

standard of performance which is less 

stringent than the limitation prohibition 

or standard of performance under the 

Act. EPA interprets this to reserve for 

the States authority to implement 

requirements that are more stringent 

than the Federal requirements under 

state law. PUD No. 1 of Jefferson 

County. Washington Dep’t of Ecology, 

511 U.S. 700, 705 (1994). 

Sections 301, 304, and 306 of the 

CWA require that EPA develop 

technology-based effluent limitations 

guidelines and new source performance 

standards that are used as the basis for 

technology-based minimum discharge 

requirements in wastewater discharge 

permits. EPA issues these effluent 

limitations guidelines and standards for 

categories of industrial dischargers 

based on the pollutants of concern 

discharged by the industry, the degree 

of control that can be attained using 

various levels of pollution control 

technology, consideration of various 

economic tests appropriate to each level 

of control, and other factors identified 

in sections 304 and 306 of the CWA 

(such as non-water quality 

environmental impacts including energy 

impacts). EPA has promulgated 

regulations setting effluent limitations 

guidelines and standards under sections 

301, 304, and 306 of the CWA for more 

than 50 industries. See 40 CFR parts 405 

through 471. EPA has established 

effluent limitations guidelines and 

standards that apply to most of the 

industry categories that use cooling 

water intake structures (e.g., steam 

electric power generation, iron and steel 

manufacturing, pulp and paper 

manufacturing, petroleum refining, and 

chemical manufacturing). 

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 source 

shall require that the location, design, 

construction, and capacity of cooling water 

intake structures reflect the best technology 

available for minimizing adverse 

environmental impact. 

The phrase ‘‘best technology 

available’’ in CWA section 316(b) is not 

defined in the statute, but its meaning 

can be understood in light of similar 

phrases used elsewhere in the CWA. See 

Riverkeeper v. EPA, slip op. at 11 (2nd 

Cir. Feb. 3, 2004) (noting that the crossreference in CWA section 316(b) to 

CWA section 306 ‘‘is an invitation to 

look to section 306 for guidance in 

discerning what factors Congress 

intended the EPA to consider in 

determining the ‘best technology 

available’ ’’ for new sources). 

In sections 301 and 306, Congress 

directed EPA to set effluent discharge 

standards for new sources based on the 

‘‘best available demonstrated control 

technology’’ and for existing sources 

based on the ‘‘best available technology 

economically achievable.’’ For new 

sources, section 306(b)(1)(B) directs EPA 

to establish ‘‘standards of performance.’’ 

The phrase ‘‘standards of performance’’ 

under section 306(a)(1) is defined as 

being the effluent reduction that is 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41583 

‘‘achievable through application of the 

best available demonstrated control 

technology, processes, operating 

methods or other alternatives * * *.’’ 

This is commonly referred to as ‘‘best 

available demonstrated technology’’ or 

‘‘BADT.’’ For existing dischargers, 

section 301(b)(1)(A) requires the 

establishment of effluent limitations 

based on ‘‘the application of best 

practicable control technology currently 

available.’’ This is commonly referred to 

as ‘‘best practicable technology’’ or 

‘‘BPT.’’ Further, section 301(b)(2)(A) 

directs EPA to establish effluent 

limitations for certain classes of 

pollutants ‘‘which shall require the 

application of the best available 

technology economically achievable.’’ 

This is commonly referred to as ‘‘best 

available technology’’ or ‘‘BAT.’’ 

Section 301 specifies that both BPT and 

BAT limitations must reflect 

determinations made by EPA under 

Clean Water Act section 304. Under 

these provisions, the discharge of 

pollutants from point sources is based 

not on the impact of the discharge on 

the receiving waters, but instead upon 

the capabilities of the equipment or 

‘‘control technologies’’ available to 

control those discharges. 

The phrases ‘‘best available 

demonstrated technology’’; and ‘‘best 

available technology’’—like ‘‘best 

technology available’’ in CWA section 

316(b)—are not defined in the statute. 

However, section 304 of the CWA 

specifies factors to be considered in 

establishing the best practicable control 

technology currently available, and best 

available technology. 

For best practicable control 

technology currently available, the CWA 

directs EPA to consider 

the total cost of application of technology in 

relation to the effluent reduction benefits to 

be achieved from such application, and shall 

also take into account the age of the 

equipment and facilities involved, the 

process employed, the engineering aspects of 

the application of various types of control 

techniques, process changes, non-water 

quality environmental impact (including 

energy requirements), and such other factors 

as [EPA] deems appropriate. 

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

For ‘‘best available technology,’’ the 

CWA directs EPA to consider: 

the age of equipment and facilities involved, 

the process employed, the engineering 

aspects * * * of various types of control 

techniques, process changes, the cost of 

achieving such effluent reduction, non-water 

quality environmental impacts (including 

energy requirements), and such other factors 

as [EPA] deems appropriate. 

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

Section 316(b) expressly refers to 

section 301, and the phrase ‘‘best 

technology available’’ is very similar to 

‘‘best technology available’’ in that 

section. These facts, coupled with the 

brevity of section 316(b) itself, 

prompted EPA to look to section 301 

and, ultimately, section 304 for 

guidance in determining the ‘‘best 

technology available to minimize 

adverse environmental impact’’ of 

cooling water intake structures for 

existing Phase II facilities. 

By the same token, however, there are 

significant differences between section 

316(b) and sections 301 and 304. See 

Riverkeeper, Inc. v. United States 

Environmental Protection Agency, slip 

op. at 13, (2nd Cir. Feb. 3, 2004) (‘‘not 

every statutory directive contained [in 

sections 301 and 306 ] is applicable’’ to 

a section 316(b) rulemaking). Section 

316(b) requires that cooling water intake 

structures reflect the best technology 

available for minimizing adverse 

environmental impact. In contrast to the 

effluent limitations provisions, the 

object of the ‘‘best technology available’’ 

is explicitly articulated by reference to 

the receiving water: To minimize 

adverse environmental impact in the 

waters from which cooling water is 

withdrawn. This difference is reflected 

in EPA’s past practices in implementing 

sections 301, 304, and 316(b). While 

EPA has established effluent limitations 

guidelines based on the efficacy of one 

or more technologies to reduce 

pollutants in wastewater in relation to 

cost without necessarily considering the 

impact on the receiving waters, EPA has 

previously considered the costs of 

technologies in relation to the benefits 

of minimizing adverse environmental 

impact in establishing 316(b) limits 

which historically have been done on a 

case-by case basis. In Re Public Service 

Co. of New Hampshire, 10 ERC 1257 

(June 17, 1977); In Re Public Service Co. 

of New Hampshire, 1 EAD 455 (Aug. 4, 

1978); Seacoast Anti-Pollution League v. 

Costle, 597 F. 2d 306 (1st Cir. 1979). 

For this Phase II rulemaking, EPA 

therefore interprets CWA section 316(b) 

as authorizing EPA to consider not only 

technologies but also their effects on 

and benefits to the water from which the 

cooling water is withdrawn. Based on 

these two considerations, EPA has 

established in today’s rule national 

requirements for facilities to install 

technology that is technically available, 

economically practicable, and costeffective while at the same time 

authorizing a range of technologies that 

achieve comparable reductions in 

adverse environmental impact. 

2. Consent Decree 

Today’s final rule partially fulfills 

EPA’s obligation to comply with a 

consent decree, as amended. The 

Second Amended Consent Decree, 

which is relevant to today’s rule, was 

filed on November 25, 2002, in the 

United States District Court, Southern 

District of New York, in Riverkeeper, 

Inc. v. Leavitt, No. 93 Civ 0314, a case 

brought against EPA by a coalition of 

individuals and environmental groups. 

The original Consent Decree, filed on 

October 10, 1995, provided that EPA 

was to propose regulations 

implementing section 316(b) by July 2, 

1999, and take final action with respect 

to those regulations by August 13, 2001. 

Under subsequent interim orders, the 

Amended Consent Decree filed on 

November 22, 2000, and the Second 

Amended Consent Decree, EPA has 

divided the rulemaking into three 

phases and is working under new 

deadlines. As required by the Second 

Amended Consent Decree, on November 

9, 2001, EPA took final action on a rule 

governing cooling water intake 

structures used by new facilities (Phase 

I). 66 FR 65255 (December 18, 2001). 

The Second Amended Consent Decree 

requires that EPA take final action by 

February 16, 2004, with respect to Phase 

II regulations that are ‘‘applicable to, at 

a minimum: (1) Existing utilities (i.e., 

facilities that both generate and transmit 

electric power) that employ a cooling 

water intake structure, and whose intake 

flow levels exceed a minimum 

threshold to be determined by EPA 

during the Phase II rulemaking process; 

and (2) existing nonutility power 

producers (i.e., facilities that generate 

electric power but sell it to another 

entity for transmission) that employ a 

cooling water intake structure, and 

whose intake flow levels exceed a 

minimum threshold to be determined by 

EPA during the Phase II rulemaking 

process.’’ The consent decree further 

requires that EPA propose regulations 

governing cooling water intake 

structures used, at a minimum, by 

smaller-flow power plants and facilities 

in four industrial sectors (pulp and 

paper making, petroleum and coal 

products manufacturing, chemical and 

allied manufacturing, and primary metal 

manufacturing) by November 1, 2004, 

and take final action by June 1, 2006 

(Phase III). 

3. What Other EPA Rulemakings and 

Guidance Have Addressed Cooling 

Water Intake Structures? 

In April 1976, EPA published a final 

rule under section 316(b) that addressed 

cooling water intake structures. 41 FR 
41584 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

17387 (April 26, 1976), see also the 

proposed rule at 38 FR 34410 (December 

13, 1973). The rule added a new 

§ 401.14 to 40 CFR Chapter I that 

reiterated the requirements of CWA 

section 316(b). It also added a new part 

402, which included three sections: (1) 

§ 402.10 (Applicability), (2) § 402.11 

(Specialized definitions), and (3) 

§ 402.12 (Best technology available for 

cooling water intake structures). Section 

402.10 stated that the provisions of part 

402 applied to ‘‘cooling water intake 

structures for point sources for which 

effluent limitations are established 

pursuant to section 301 or standards of 

performance are established pursuant to 

section 306 of the Act.’’ Section 402.11 

defined the terms ‘‘cooling water intake 

structure,’’ ‘‘location,’’ ‘‘design,’’ 

‘‘construction,’’ ‘‘capacity,’’ and 

‘‘Development Document.’’ Section 

402.12 included the following language: 

The information contained in the 

Development Document shall be considered 

in determining whether the location, design, 

construction, and capacity of a cooling water 

intake structure of a point source subject to 

standards established under section 301 or 

306 reflect the best technology available for 

minimizing adverse environmental impact. 

In 1977, fifty-eight electric utility 

companies challenged those regulations, 

arguing that EPA had failed to comply 

with the requirements of the 

Administrative Procedure Act (APA) in 

promulgating the rule. Specifically, the 

utilities argued that EPA had neither 

published the Development Document 

in the Federal Register nor properly 

incorporated the document into the rule 

by reference. The United States Court of 

Appeals for the Fourth Circuit agreed 

and, without reaching the merits of the 

regulations themselves, remanded the 

rule. Appalachian Power Co. v. Train, 

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

withdrew part 402. 44 FR 32956 (June 

7, 1979). The regulation at 40 CFR 

401.14, which reiterates the statutory 

requirement, remains in effect. 

Since the Fourth Circuit remanded 

EPA’s section 316(b) regulations in 

1977, NPDES permit authorities have 

made decisions implementing section 

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

basis. EPA published draft guidance 

addressing section 316(b) 

implementation in 1977. See Draft 

Guidance for Evaluating the Adverse 

Impact of Cooling Water Intake 

Structures on the Aquatic Environment: 

Section 316(b) P.L. 92–500 (U.S. EPA, 

1977). This draft guidance described the 

studies recommended for evaluating the 

impact of cooling water intake 

structures on the aquatic environment 

and recommended a basis for 

determining the best technology 

available for minimizing adverse 

environmental impact. The 1977 section 

316(b) draft guidance states, ‘‘The 

environmental-intake interactions in 

question are highly site-specific and the 

decision as to best technology available 

for intake design, location, construction, 

and capacity must be made on a caseby-case basis.’’ (Section 316(b) Draft 

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

case-by-case approach was also 

consistent with the approach described 

in the 1976 Development Document 

referenced in the remanded regulation. 

The 1977 section 316(b) draft 

guidance suggested a general process for 

developing information needed to 

support section 316(b) decisions and 

presenting that information to the 

permitting authority. The process 

involved the development of a sitespecific study of the environmental 

effects associated with each facility that 

uses one or more cooling water intake 

structures, as well as consideration of 

that study by the permitting authority in 

determining whether the facility must 

make any changes for minimizing 

adverse environmental impact. Where 

adverse environmental impact is 

present, the 1977 draft guidance 

suggested a stepwise approach that 

considers screening systems, size, 

location, capacity, and other factors. 

Although the draft guidance described 

the information that should be 

developed, key factors that should be 

considered, and a process for supporting 

section 316(b) determinations, it did not 

establish uniform technology-based 

national standards for best technology 

available for minimizing adverse 

environmental impact. Rather, the 

guidance left the decisions on the 

appropriate location, design, capacity, 

and construction of cooling water intake 

structures to the permitting authority. 

Under this framework, the Director 

determined whether appropriate studies 

have been performed, whether a given 

facility has minimized adverse 

environmental impact, and what, if any, 

technologies may be required. 

4. Phase I New Facility Rule 

On November 9, 2001, EPA took final 

action on regulations governing cooling 

water intake structures at new facilities. 

66 FR 65255 (December 18, 2001). On 

December 26, 2002, EPA made minor 

changes to the Phase I regulations. 67 

FR 78947. The final Phase I new facility 

rule (40 CFR Part 125, Subpart I) 

establishes requirements applicable to 

the location, design, construction, and 

capacity of cooling water intake 

structures at new facilities that 

withdraw at least two (2) million gallons 

per day (MGD) and use at least twentyfive (25) percent of the water they 

withdraw solely for cooling purposes. In 

the new facility rule, EPA adopted a 

two-track approach. Under Track I, for 

facilities with a design intake flow more 

than 10 MGD, the intake flow of the 

cooling water intake structure is 

restricted, at a minimum, to a level 

commensurate with that which could be 

attained by use of a closed-cycle, 

recirculating cooling system. For 

facilities with a design intake flow more 

than 2 MGD, the design through-screen 

intake velocity is restricted to 0.5 ft/s 

and the total quantity of intake is 

restricted to a proportion of the mean 

annual flow of a freshwater river or 

stream, or to maintain the natural 

thermal stratification or turnover 

patterns (where present) of a lake or 

reservoir except in cases where the 

disruption is beneficial, or to a 

percentage of the tidal excursions of a 

tidal river or estuary. If certain 

environmental conditions exist, an 

applicant with intake capacity greater 

than 10 MGD must select and 

implement appropriate design and 

construction technologies for 

minimizing impingement mortality and 

entrainment. (Applicants with 2 to 10 

MGD flows are not required to reduce 

intake flow to a level commensurate 

with a closed-cycle, recirculating 

cooling system, but must install 

technologies for reducing impingement 

mortality at all locations.) Under Track 

II, the applicant has the opportunity to 

demonstrate that impacts to fish and 

shellfish, including important forage 

and predator species, within the 

watershed will be comparable to the 

reduction in impingement mortality and 

entrainment it would achieve were it to 

implement the Track I intake flow and 

velocity requirements. 

With the new facility rule, EPA 

promulgated national minimum 

requirements for the design, capacity, 

and construction of cooling water intake 

structures at new facilities. EPA believes 

that the final new facility rule 

establishes a reasonable framework that 

creates certainty for permitting of new 

facilities, while providing significant 

flexibility to take site-specific factors 

into account. 

5. Proposed Rule for Phase II Existing 

Facilities 

On April 9, 2002, EPA published 

proposed requirements for cooling water 

intake structures at Phase II existing 

facilities to implement section 316(b) of 

the Clean Water Act. EPA proposed to 

establish requirements that gave 

facilities three different compliance 

options for meeting performance 

standards that vary based on waterbody 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41585 

type, the percentage of the source 

waterbody withdrawn, and the facility 

capacity utilization rate. 67 FR 17122. 

EPA received numerous comments and 

data submissions concerning the 

proposal. 

6. Notice of Data Availability 

On Wednesday, March 19, 2003, EPA 

published a Proposed Rule Notice of 

Data Availability (NODA). 68 FR 13522. 

This notice presented a summary of the 

data EPA had received or collected 

since proposal, an assessment of the 

relevance of the data to EPA’s analysis, 

revisions to EPA’s estimate of the costs 

and benefits of the proposed rule, new 

proposed compliance alternatives, and 

potential modifications to EPA’s 

proposed regulatory approach. As part 

of the NODA, EPA also reopened the 

comment period on the complete 

contents of the proposed rule. 

7. Public Participation 

EPA has worked extensively with 

stakeholders from the industry, public 

interest groups, State agencies, and 

other Federal agencies in the 

development of this final rule. These 

public participation activities have 

focused on various section 316(b) 

issues, including issues relevant to 

development of the Phase I rule and 

Phase II rule. 

EPA conducted outreach to industry 

groups, environmental groups, and 

other government entities in the 

development, testing, refinement, and 

completion of the section 316(b) survey, 

which has been used as a source of data 

for the Phase II rule. The survey is 

entitled ‘‘Information Collection 

Request, Detailed Industry 

Questionnaires: Phase II Cooling Water 

Intake Structures & Watershed Case 

Study Short Questionnaire,’’ September 

3, 1999. In addition, EPA conducted two 

public meetings on section 316(b) 

issues. In June of 1998, in Arlington, 

Virginia, EPA conducted a public 

meeting focused on a draft regulatory 

framework for assessing potential 

adverse environmental impact from 

impingement and entrainment. 63 FR 

27958 (May 21, 1998). In September of 

1998, in Alexandria, Virginia, EPA 

conducted a public meeting focused on 

technology, cost, and mitigation issues. 

63 FR 40683 (July 30, 1998). In addition, 

in September of 1998, and April of 

1999, EPA staff participated in technical 

workshops sponsored by the Electric 

Power Research Institute on issues 

relating to the definition and assessment 

of adverse environmental impact. EPA 

staff have participated in other industry 

conferences, met upon request on 

numerous occasions with 

representatives of industry and 

environmental groups. 

In the months leading up to 

publication of the proposed Phase I rule, 

EPA conducted a series of stakeholder 

meetings to review the draft regulatory 

framework for the proposed rule and 

invited stakeholders to provide their 

recommendations for the Agency’s 

consideration. EPA managers have met 

with the Utility Water Act Group, 

Edison Electric Institute, representatives 

from an individual utility, and with 

representatives from the petroleum 

refining, pulp and paper, and iron and 

steel industries. EPA conducted several 

meetings with environmental groups 

attended by representatives from 15 

organizations. EPA also met with the 

Association of State and Interstate Water 

Pollution Control Administrators 

(ASIWPCA) and, with the assistance of 

ASIWPCA, conducted a conference call 

in which representatives from 17 States 

or interstate organizations participated. 

After publication of the proposed Phase 

I rule, EPA continued to meet with 

stakeholders at their request. Summaries 

of these meetings are in the docket. 

EPA received many comments from 

industry stakeholders, government 

agencies, and private citizens on the 

Phase I proposed rule 65 FR 49059 

(August 10, 2000). EPA received 

additional comments on the Phase I 

Notice of Data Availability (NODA) 66 

FR 28853 (May 25, 2001). These 

comments informed the development of 

the Phase II proposal. 

In January, 2001, EPA also attended 

technical workshops organized by the 

Electric Power Research Institute and 

the Utilities Water Act Group. These 

workshops focused on the presentation 

of key issues associated with different 

regulatory approaches considered under 

the Phase I proposed rule and 

alternatives for addressing section 

316(b) requirements. 

On May 23, 2001, EPA held a daylong forum to discuss specific issues 

associated with the development of 

regulations under section 316(b) of the 

Clean Water Act. 66 FR 20658 (April 24, 

2001). At the meeting, 17 experts from 

industry, public interest groups, States, 

and academia reviewed and discussed 

the Agency’s preliminary data on 

cooling water intake structure 

technologies that are in place at existing 

facilities and the costs associated with 

the use of available technologies for 

reducing impingement and entrainment. 

Over 120 people attended the meeting. 

In August 21, 2001, EPA staff 

participated in a technical symposium 

sponsored by the Electric Power 

Research Institute in association with 

the American Fisheries Society on 

issues relating to the definition and 

assessment of adverse environmental 

impact under section 316(b) of the 

CWA. 

During development of the Phase I 

final rule and Phase II proposed rule, 

EPA coordinated with the staff from the 

Nuclear Regulatory Commission (NRC) 

to ensure that there would not be a 

conflict with NRC safety requirements. 

NRC staff reviewed the proposed Phase 

II rule and did not identify any apparent 

conflict with nuclear plant safety. NRC 

licensees would continue to be 

obligated to meet NRC 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 rule and 

an NRC safety requirement, the NRC 

safety requirement take precedence. 

EPA added language to address this 

concern in this final rule. 

In a concerted effort to respond to a 

multitude of questions concerning the 

data and analyses that EPA developed 

as part of the Phase II proposal, EPA 

held a number of conference calls with 

multiple stakeholders to clarify issues 

and generally provide additional 

information. To supplement these 

verbal discussions, EPA drafted three 

supporting documents: one that 

explained the methodology EPA used to 

calculate entrainment rates; and two 

others that provided specific examples 

of how EPA applied this methodology to 

calculate benefits for the proposed rule. 

In addition, EPA prepared written 

responses to all questions submitted by 

the stakeholders involved in the initial 

conference calls. 

Finally, EPA sponsored a Symposium 

on Cooling Water Intake Technologies to 

Protect Aquatic Organisms, held on May 

6–7, 2003, at the Hilton Crystal City at 

National Airport in Arlington, Virginia. 

This symposium brought together 

professionals from Federal, State, and 

Tribal regulatory agencies; industry; 

environmental organizations; 

engineering consulting firms; science 

and research organizations; academia; 

and others concerned with mitigating 

harm to the aquatic environment by 

cooling water intake structures. Efficacy 

and costs of various technologies to 

mitigate impacts to aquatic organisms 

from cooling water intake structures, as 

well as research and other future needs, 

were discussed. 

These coordination efforts and all of 

the meetings described in this section 

are documented or summarized in the 

docket established for this rule. 
41586 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

IV. Environmental Impacts Associated 

With Cooling Water Intake Structures 

With the implementation of today’s 

final rule, EPA intends to minimize the 

adverse environmental impacts of 

cooling water intake structures by 

minimizing the number of aquatic 

organisms lost as a result of water 

withdrawals associated with these 

structures or through restoration 

measures that compensate for these 

losses. In the Phase I new facility rule 

and proposed Phase II existing facility 

rule, EPA provided an overview of the 

magnitude and type of environmental 

impacts associated with cooling water 

intake structures, including several 

illustrative examples of documented 

environmental impacts at existing 

facilities (see 65 FR 49071–4; 66 FR 

65262–5; and 67 FR 17136–40). 

For the same reasons set forth in the 

preamble to the Phase I rule (66 FR 

65256, 65291–65297), EPA has 

determined that there are multiple types 

of undesirable and unacceptable 

environmental impacts that may be 

associated with Phase II existing 

facilities, depending on conditions at 

the individual site. These types of 

impacts include entrainment and 

impingement; reductions of threatened 

and endangered species; damage to 

critical aquatic organisms, including 

important elements of the food chain; 

diminishment of a population’s 

compensatory reserve; losses to 

populations including reductions of 

indigenous species populations, 

commercial fisheries stocks, and 

recreational fisheries; and stresses to 

overall communities and ecosystems as 

evidenced by reductions in diversity or 

other changes in system structure and 

function. 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 determining 

performance at Phase II existing 

facilities. Further, EPA considered the 

non-impingement and entrainment 

environmental impacts for this rule and 

found them to be acceptable at a 

national level. This section describes 

the environmental impacts associated 

with cooling water withdrawals and 

why they are of concern to the Agency. 

EPA estimates that facilities under the 

scope of today’s final rule withdraw on 

average more than 214 billion gallons of 

cooling water a day from waters of the 

United States.2 A report by the U.S. 

2 EPA 1999. Detailed Industry Questionnaires: 

Phase II Cooling Water Intake Structures & 

Watershed Case Study Short Questionnaire. U.S. 

Geological Survey estimates that the use 

of water by the thermoelectric power 

industry accounted for 47 percent of all 

combined fresh and saline withdrawals 

from waters of the United States in 

1995.3 The withdrawal of such large 

quantities of cooling water in turn has 

the potential to affect large quantities of 

aquatic organisms including 

phytoplankton (tiny, free-floating 

photosynthetic organisms suspended in 

the water column), zooplankton (small 

aquatic animals, including fish eggs and 

larvae, that consume phytoplankton and 

other zooplankton), fish, and shellfish. 

Aquatic organisms drawn into cooling 

water intake structures are either 

impinged on components of the cooling 

water intake structure or entrained in 

the cooling water system itself. 

Impingement takes place when 

organisms are trapped against intake 

screens by the force of the water being 

drawn through the cooling water intake 

structure. The velocity of the water 

withdrawal by the cooling water intake 

structure may prevent proper gill 

movement, remove fish scales, and 

cause other physical harm or death of 

affected organisms through exhaustion, 

starvation, asphyxiation, and descaling. 

Death from impingement 

(‘‘impingement mortality’’) can occur 

immediately or subsequently as an 

individual succumbs to physical 

damage upon its return to the 

waterbody. 

Entrainment occurs when organisms 

are drawn through the cooling water 

intake structure into the cooling system. 

Organisms that become entrained are 

typically relatively small, aquatic 

organisms, including early life stages of 

fish and shellfish. Many of these small, 

fragile organisms serve as prey for larger 

organisms higher on the food chain 

which are commercially and 

recreationally desirable species. As 

entrained organisms pass through a 

facility’s cooling system they may be 

subject to mechanical, thermal, and at 

times, chemical stress. Sources of such 

stress include physical impacts in the 

pumps and condenser tubing, pressure 

changes caused by diversion of the 

cooling water into the plant or by the 

hydraulic effects of the condensers, 

sheer stress, thermal shock in the 

condenser and discharge tunnel, and 

chemical toxic effects from antifouling 

agents such as chlorine. Similar to 

impingement mortality, death from 

entrainment can occur immediately or 

Environmental Protection Agency, Office of 

Wastewater Management, Washington, D.C. OMB 

Control No. 2040–0213. 3 Solley, W.B., R.R. Pierce and H.A. Perlman. 

1998. Estimated Use of Water in the United States 

in 1995. U.S. Geological Survey Circular 1200. 

subsequently as the individual 

succumbs to the damage from the 

stresses encountered as it passed 

through the cooling water system once 

it is discharged back into the waterbody. 

The environmental impacts 

attributable to impingement mortality 

and entrainment at individual facilities 

include losses of early life stages of fish 

and shellfish, reductions in forage 

species, and decreased recreational and 

commercial landings. EPA estimates 

that the current number of fish and 

shellfish, expressed as age 1 

equivalents, that are killed from 

impingement and entrainment from 

cooling water intake structures at the 

facilities covered by this Phase II rule is 

over 3.4 billion annually. Expressing 

impingement mortality and entrainment 

losses as age 1 equivalents is an 

accepted method for converting losses 

of all life stages into individuals of an 

equivalent age and provides a standard 

metric for comparing losses among 

species, years, and facilities. The largest 

losses are in the mid-Atlantic, where 

EPA estimates 1.7 billion age 1 

equivalents are lost annually due to 

impingement and entrainment.4 

Although the number of age 1 

equivalent fish killed by impingement 

and entrainment is very large, precise 

quantification of the nature and extent 

of impacts to populations and 

ecosystems is difficult. Population 

dynamics and the physical, chemical, 

and biological processes of ecosystems 

are extremely complex. While generally 

accepted as a simple and transparent 

method for modeling losses, the 

proportional methodology that EPA uses 

to estimate impingement and 

entrainment nationwide has 

uncertainties that may result in under or 

over estimating actual impingement and 

entrainment rates. 

Decreased numbers of aquatic 

organisms can disrupt aquatic food 

webs and alter species composition and 

overall levels of biodiversity. For 

example, a model that examined the 

effect of large entrainment losses of 

forage fish, such as bay anchovy, 

predicted subsequent reductions in 

predator populations (including 

commercially and recreationally 

important species such as striped bass, 

weakfish, and blue fish) as high as 

25%.5 This is because forage species, 

which comprise a majority of 

4 For more information, please see Chapter D2: 

Evaluation of Impingement and Entrainment in the 

Mid-Atlantic Region in the Section 316(b) Existing 

Facilities Regional Studies, Part D: Mid-Atlantic. 

5 Summers, J.K. 1989. Simulating the indirect 

effects of power plant entrainment losses on an 

estuarine ecosystem. Ecological Modelling, 49: 31– 

47. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41587 

entrainment losses at many facilities, 

are often a primary food source for 

predator species. 

EPA is also concerned about the 

potential impacts of cooling water 

intake structures located in or near 

habitat areas that support threatened, 

endangered, or other species of concern 

(those species that might be in need of 

conservation actions, but are not 

currently listed as threatened or 

endangered under State or Federal 

law).6 In the San Francisco Bay-Delta 

Estuary, California, in the vicinity of the 

Pittsburg and Contra Costa Power Plants 

several fish species (e.g., Delta smelt, 

Sacramento splittail, chinook salmon, 

and steelhead) are now considered 

threatened or endangered by State and/ 

or Federal authorities. EPA evaluated 

facility data on impingement and 

entrainment rates for these species and 

estimated that potential losses of special 

status fish species at the two facilities 

may average 8,386 age 1 equivalents per 

year resulting from impingement and 

169 age 1 equivalents per year due to 

entrainment.7 In another example, EPA 

is aware that from 1976 to 1994, 

approximately 3,200 threatened or 

endangered sea turtles entered enclosed 

cooling water intake canals at the St. 

Lucie Nuclear Generating Plant in 

Florida.8 The facility developed a 

capture-and-release program in response 

to these events. Most of the entrapped 

turtles were captured and released alive; 

however, approximately 160 turtles did 

not survive. An incidental take limit 

established by NMFS in a 2001 

biological opinion for this facility has 

been set at no more than 1,000 sea 

turtles captured in the intake, with less 

than one percent killed or injured as a 

result of plant operations (only two of 

those killed or injured may be Kemp’s 

Ridley sea turtles and none may be 

hawksbill or leatherback sea turtles).9 

Although the extent to which 

threatened, endangered, and other 

special status species are taken by 

cooling water intake structures more 

generally is yet to be determined, EPA 

6 For more information, please see Chapter A12: 

Threatened & Endangered Species Analysis 

Methods in the Regional Studies for the Final 

Section 316(b) Phase II Existing Facilities Rule. 

7 Impingement and entrainment data were 

obtained from the 2000 Draft Habitat Conservation 

Plan for the Pittsburg and Contra Costa facilities. 

Please see EPA’s Regional Studies for the Final 

Section 316(b) Phase II Existing Facilities Rule for 

detailed information on EPA’s evaluation of 

impingement and entrainment at these facilities. 

8 Florida Power and Light Company. 1995. 

Assessment of the impacts at the St. Lucie Nuclear 

Generating Plant on sea turtle species found in the 

inshore waters of Florida. 

9 Florida Power and Light Company, 2002. 

Florida Power & Light Company St. Lucie Plant 

Annual Environmental Operating Report 2002. 

is concerned about potential impacts to 

such species. 

Examples of Environmental Impacts 

Caused by Cooling Water Intakes 

1. Hudson River 

The power generation facilities on the 

Hudson River in New York are some of 

the most extensively studied in the 

nation. The fish populations in the 

Hudson River have also been studied 

extensively to measure the impacts of 

these power plants. Studies of 

entrainment at five Hudson River power 

plants during the 1980s predicted yearclass reductions ranging from six 

percent to 79 percent, depending on the 

fish species.10 A Draft Environmental 

Impact Statement (DEIS) prepared by 

industry of entrainment at three Hudson 

River facilities (Roseton, Bowline, and 

Indian Point) predicted year-class 

reductions of up to 20 percent for 

striped bass, 25 percent for bay 

anchovy, and 43 percent for Atlantic 

tomcod.11 The New York State 

Department of Environmental 

Conservation (NYSDEC) concluded that 

any ‘‘compensatory responses to this 

level of power plant mortality could 

seriously deplete any resilience or 

compensatory capacity of the species 

needed to survive unfavorable 

environmental conditions.’’ 12 In the 

DEIS, the facilities argue that their 

operation has not harmed the local 

aquatic communities, because all 

observed population changes are 

attributable to causes other than the 

operation of the power plants, such as 

water chestnut growth, zebra mussel 

invasion, changes in commercial 

fishing, increases in salinity and 

improved water quality in the New York 

Harbor. 

In contrast, the Final Environmental 

Impact Statement (FEIS) prepared by 

NYSDEC for these three facilities 

concludes that impacts are associated 

with the power plants and notes that 

these impacts are more like habitat 

degradation than the ‘‘selective 

cropping’’ of fish that occurs during 

regulated fishing because the entire 

community is impacted rather than 

10 Boreman J. and P. Goodyear. 1988. Estimates of 

entrainment mortality for striped bass and other 

fish species inhabiting the Hudson River Estuary. 

American Fisheries Society Monograph 4:152–160. 

11 Consolidated Edison Company of New York. 

2000. Draft environmental impact statement for the 

state pollutant discharge elimination system 

permits for Bowline Point, Indian Point 2 & 3, and 

Roseton steam electric generating stations. 

12 New York State Department of Environmental 

Conservation (NYSDEC). 2000. Internal 

memorandum provided to the USEPA on NYDEC’s 

position on SPDES permit renewals for Roseton, 

Bowline Point 1 & 2, and Indian Point 2 & 3 

generating stations. 

specific species higher on the food 

chain.13 The multiple facilities on the 

Hudson River act cumulatively on the 

entire aquatic community. New York 

State’s 2002 section 316(b) report lists 

the Hudson River downstream from the 

Federal dam at Troy, New York, as 

impacted by cooling water use by power 

plants due to the loss each year of a 

substantial percentage of annual fish 

production. The FEIS estimates, from 

samples collected between 1981 and 

1987, that the average annual 

entrainment losses from these three 

facilities includes 16.9 million 

American shad, 303.4 million striped 

bass, 409.6 million bay anchovy, 468 

million white perch, and 826.2 million 

river herring.14 In addition, related 

studies have found a small long-term 

decline in both species richness and 

diversity within the resident fish 

community. A commenter on the DEIS 

cited further evidence that Atlantic 

tomcod, Atlantic sturgeon, bluefish, 

weakfish, rainbow smelt, white perch 

and white catfish are showing long-term 

trends of declining abundance of 5 to 

8% per annum.15 Declines in 

abundances of several species and 

changes in species composition have 

raised concerns about the overall health 

of the community. The FEIS concluded 

that additional technology was 

necessary to minimize the adverse 

environmental impact from these three 

once-through systems.16 

The FEIS further concluded that 

entrainment at these facilities has 

diminished the forage base for each 

species so there is less food available for 

the survivors. This disruption of the 

food chain compromises the health of 

the entire aquatic community. The FEIS 

used, as a simplified hypothetical 

example, the loss of an individual bay 

anchovy that would ordinarily serve as 

prey for a juvenile striped bass. If this 

individual bay anchovy is killed via 

entrainment and disintegrated upon 

13 New York State Department of Environmental 

Conservation (NYSDEC). 2003. Final Environmental 

Impact Statement: Concerning the Applications to 

Renew NYSPDES Permits for the Roseton 1 & 2, 

Bowling 1 & 2 and Indian Point 2 & 3 Steam Electric 

Generating Stations, Orange, Rockland and 

Westchester Counties. 14 Ibid. 15 Henderson, P.A. and R.M. Seaby. 2000. 

Technical comments on the Draft Environmental 

Impact Statement for the State Pollution Discharge 

Elimination System Permit Renewal for Bowline 

Point 1 & 2, Indian Point 2 & 3, and Roseton 1 & 

2 Steam Generating Stations. Pisces Conservation 

Ltd. 

16 New York State Department of Environmental 

Conservation (NYSDEC). 2003. Final Environmental 

Impact Statement: Concerning the Applications to 

Renew NYSPDES Permits for the Roseton 1 & 2, 

Bowline 1 & 2 and Indian Point 2 & 3 Steam Electric 

Generating Stations, Orange, Rockland and 

Westchester Counties. 
41588 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

passage through a CWIS, it is no longer 

available as food to a striped bass, but 

rather it is only useful as food to lower 

trophic level organisms, such as 

detritivores (organisms that feed on 

dead organic material). Further, the bay 

anchovy would no longer be available to 

consume phytoplankton, which upsets 

the distribution of nutrients in the 

ecosystem.17 

The Hudson River, like many 

waterbodies in the nation, has 

undergone many changes in the past 

few decades. These changes, which 

have affected fish populations either 

positively or negatively, include 

improvements to water quality as a 

result of upgrades to sewage treatment 

plants, invasions by exotic species such 

as zebra mussels, chemical 

contamination by toxins such as PCBs 

and heavy metals, global climate shifts 

such as increases in annual mean 

temperatures and higher frequencies of 

extreme weather events (e.g., the El 

Nin ̃ o-Southern Oscillation), and strict 

management of individual species 

stocks such as striped bass.18 In 

addition, there are dramatic natural 

changes in fish populations on an 

annual basis and in the long term due 

to natural phenomena because the 

Hudson River, like many waterbodies, is 

a dynamic system with many 

fundamental, fluctuating environmental 

parameters—such as flow, temperature, 

salinity, dissolved oxygen, nutrients, 

and disease—that cause natural 

variation in fish populations each 

year.19 The existence of these 

interacting variables makes it difficult to 

determine the exact contribution of 

impingement and entrainment losses on 

a population’s relative health. 

Nonetheless, as described later in this 

section, EPA is concerned about the 

potential for cumulative impacts 

resulting from multiple facility intakes 

that collectively impinge and/or entrain 

aquatic organisms within a specific 

waterbody. 

2. Mount Hope Bay 

Environmental impacts were also 

studied in another recent permit 

reissuance for the Brayton Point Station 

in Somerset, Massachusetts, where EPA 

is the permitting authority. EPA 

determined that, among other things, 

the facility’s cooling water system had 

contributed to the collapse of the fishery 

and inhibited its recovery despite 

stricter commercial and recreational 

fishing limits and improved water 

quality due to sewage treatment 

17 Ibid. 

18 Ibid. 

19 Ibid. 

upgrades. The facility currently 

withdraws nearly one billion gallons of 

water each day and the average annual 

losses of aquatic organisms due to 

impingement and entrainment are 

estimated in the trillions, including 251 

million winter flounder, 375 million 

windowpane flounder, 3.5 billion tautog 

and 11.8 billion bay anchovy. A 

dramatic change in the fish populations 

in Mount Hope Bay is apparent after 

1984 with a decline by more than 87 

percent, which coincides with a 45 

percent increase in cooling water 

withdrawal from the bay due to the 

modification of Unit 4 from a closedcycle recirculating system to a oncethrough cooling water system and a 

similar increase in the facility’s thermal 

discharge.20 21 The downward trend of 

finfish abundance in Mount Hope Bay is 

significantly greater than declines in 

adjacent Narragansett Bay that is not 

influenced by the operation of Brayton 

Point Station.22 Despite fishing 

restrictions, fish stocks have not 

recovered. 

3. Southern California Bight 

At the San Onofre Nuclear Generating 

Station (SONGS), in a normal (non-El 

Nin ̃ o) year, an estimated 57 tons of fish 

were killed per year when all units were 

in operation.23 The amount lost per year 

included approximately 350,000 

juveniles of white croaker, a popular 

sport fish; this number represents 

33,000 adult equivalents or 3.5 tons of 

adult fish. In shallow water, densities of 

queenfish and white croaker decreased 

60 percent within one kilometer of 

SONGS and 35 percent within three 

kilometers from SONGS as compared to 

densities prior to facility operations. 

Densities of local midwater fish 

decreased 50 to 70 percent within three 

kilometers of the facility. In contrast, 

relative abundances of some bottomdwelling species in the same areas were 

higher because of the enriched nature of 

the SONGS discharge, which in turn 

supported elevated numbers of prey 

items for bottom-dwelling fish. 

20 Ibid. 

21 T Gibson, M. 1995 (revised 1996). Comparison 

of trends in the finfish assemblages of Mt. Hope Bay 

and Narragansett Bay in relation to operations for 

the New England Power Brayton Point station. 

Rhode Island Division of Fish and Wildlife, Marine 

Fisheries Office. 

22 EPA–New England. 2002. Clean Water Act 

NPDES Permitting Determinations for Thermal 

Discharge and Cooling Water Intake from Brayton 

Point Station in Somerset, MA (NPDES Permit No. 

MA 0003654), July 22, 2002. 

23 Murdoch, W.W., R.C. Fay, and B.J. Mechalas. 

1989. Final Report of the Marine Review Committee 

to the California Coastal Commission. August 1989, 

MRC Document No. 89–02. 

4. Missouri River 

In contrast to these examples, 

facilities sited on waterbodies 

previously impaired by anthropogenic 

activities such as channelization 

demonstrate limited entrainment and 

impingement losses. The Neal 

Generating Complex facility, located 

near Sioux City, Iowa, on the Missouri 

River is coal-fired and utilizes oncethrough cooling systems. According to a 

ten-year study conducted from 1972–82, 

the Missouri River aquatic environment 

near the Neal complex was previously 

heavily impacted by channelization and 

very high flow rates meant to enhance 

barge traffic and navigation.24 These 

anthropogenic changes to the natural 

river system resulted in significant 

losses of fish habitat. At this facility, 

there was found to be little 

impingement and entrainment by 

cooling water intakes. 

Studies like those described in this 

section provide only a partial picture of 

the range of environmental impacts 

associated with cooling water intake 

structures. Although numerous studies 

were conducted to determine the 

environmental impacts caused by 

impingement and entrainment at 

existing facilities, many of them are 

based on limited data that were 

collected as long as 25 years ago. EPA’s 

review of available facility impingement 

and entrainment studies identified a 

substantial number of serious study 

design limitations, including data 

collections for only one to two years or 

limited to one season and for a subset 

of the species affected by cooling water 

intakes; limited taxonomic detail (i.e., 

many losses not identified to the species 

level); a general lack of statistical 

information such as inclusion of 

variance measures in impingement and 

entrainment estimates; and the lack of 

standard methods and metrics for 

quantifying impingement and 

entrainment, which limits the potential 

for evaluating cumulative impacts 

across multiple facilities. Further, in 

many cases it is likely that facility 

operating conditions and/or the state of 

the waterbody itself has changed since 

these studies were conducted. Finally, 

the methods for monitoring 

impingement and entrainment used in 

the 1970s and 1980s, when most section 

316(b) evaluations were performed, 

were often inconsistent and incomplete, 

making quantification of impacts 

difficult in some cases. Recent advances 

in environmental assessment techniques 

24 Tondreau, R., J. Hey and E. Shane, Morningside 

College. 1982. Missouri River Aquatic Ecology 

Studies: Ten Year Summary (1972–1982). Prepared 

for Iowa Public Service Company, Sioux City, Iowa. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41589 

provide new and in some cases better 

tools for monitoring impingement and 

entrainment and quantifying the current 

magnitude of the impacts.25 26 

EPA is also concerned about the 

potential for cumulative impacts related 

to cooling water withdrawal. 

Cumulative impacts may result from (1) 

multiple facility intakes impinging and/ 

or entraining aquatic organisms within 

a specific waterbody, watershed, or 

along the migratory pathway of specific 

species; (2) the existence of multiple 

stressors within a waterbody/watershed, 

including cooling water intake 

withdrawals; and (3) long-term 

occurrences of impingement and/or 

entrainment losses that may result in 

the diminishment of the compensatory 

reserve of a particular fishery stock. 

Historically, environmental impacts 

related to cooling water intake 

structures have been evaluated on a 

facility-by-facility basis. These historical 

evaluations do not consider the 

potential for a fish or shellfish species 

to be concomitantly impacted by 

cooling water intake structures 

belonging to other facilities that are 

located within the same waterbody or 

watershed in which the species resides 

or along the coastal migratory route of 

a particular species. The potential 

cumulative effects of multiple intakes 

located within a specific waterbody or 

along a coastal segment are difficult to 

quantify and are not typically assessed. 

(One relevant example is provided for 

the Hudson River; see discussion earlier 

in this section.) Nonetheless, EPA 

analyses suggest that almost a quarter of 

all Phase II existing facilities are located 

on a waterbody with another Phase II 

existing facility (DCN 4–4009). Thus, 

EPA is concerned that although the 

potential for aquatic species to be 

affected by cooling water withdrawals 

from multiple facility intakes is high, 

this type of cumulative impact is largely 

unknown and has not adequately been 

accounted for in evaluating impacts. 

However, recently the Atlantic States 

Marine Fisheries Commission (ASMFC) 

was requested by its member States to 

investigate the cumulative impacts on 

commercial fishery stocks, particularly 

overutilized stocks, attributable to 

cooling water intakes located in coastal 

regions of the Atlantic.27 Specifically, 

the ASMFC study will evaluate the 

25 Schmitt, R.J. and C.W. Osenberg. 1996. 

Detecting Ecological Impacts. Academic Press, San 

Diego, CA. 

26 EPRI 1999. Catalog of Assessment Methods for 

Evaluating the Effects of Power Plant Operations on 

Aquatic Communities. TR–112013, EPRI, Palo Alto, 

CA. 

27 Personal communication, D. Hart (EPA) and L. 

Kline (ASMFC), 2001. 

potential cumulative impacts of 

multiple intakes on Atlantic menhaden 

stock 28 which range along most of the 

U.S. Atlantic coast with a focus on 

revising existing fishery management 

models so that they accurately consider 

and account for fish losses from 

multiple intake structures. Results from 

these types of studies, although 

currently unavailable, will provide 

significant insight into the degree of 

impact attributable to intake 

withdrawals from multiple facilities. 

EPA also considered information 

suggesting that impingement and 

entrainment, in conjunction with other 

factors, may be a nontrivial stress on a 

waterbody. EPA recognizes that cooling 

water intake structures are not the only 

source of human-induced stress on 

aquatic systems. Additional stresses to 

aquatic systems include, but are not 

limited to, nutrient, toxics, and 

sediment loadings; low dissolved 

oxygen; habitat loss; and stormwater 

runoff. Although EPA recognizes that a 

nexus between a particular stressor and 

adverse environmental impact may be 

difficult to establish with certainty, EPA 

believes stressors that cause or 

contribute to the loss of aquatic 

organisms and habitat such as those 

described above, may incrementally 

impact the viability of aquatic resources. 

EPA analyses suggest that over 99 

percent of all existing facilities with 

cooling water withdrawal that EPA 

surveyed in its section 316(b) survey of 

existing facilities are located within two 

miles of waters that are identified as 

impaired by a State or Tribe (see 66 FR 

65256, 65297). Thus, the Agency is 

concerned that to the extent that many 

of the aquatic organisms subject to the 

effects of cooling water withdrawals 

reside in impaired waterbodies, they are 

potentially more vulnerable to 

cumulative impacts from an array of 

physical and chemical anthropogenic 

stressors. 

Finally, EPA believes that an aquatic 

population’s potential compensatory 

ability—the capacity for a species to 

increase its survival, growth, or 

reproduction in response to reductions 

sustained to its overall population 

size—may be compromised by 

impingement and entrainment losses in 

conjunction with all the other stressors 

encountered within a population’s 

natural range, as well as impingement 

and entrainment losses occurring 

consistently over extended periods of 

time. As discussed in the Phase I new 

facility rule (see 66 FR 65294), EPA is 

concerned that even if there is little 

28 Personal communication, D. Hart (EPA) and L. 

Kline (ASMFC), 2003. 

evidence that cooling water intakes 

alone reduce a population’s 

compensatory reserve, the multitude of 

stressors experienced by a species can 

potentially adversely affect its ability to 

recover.29 Moreover, EPA notes that the 

opposite effect or ‘‘depensation’’ 

(decreases in recruitment as stock size 

declines30) may occur if a population’s 

size is reduced beyond a critical 

threshold. Depensation can lead to 

further decreases in population 

abundances that are already seriously 

depleted and, in some cases, recovery of 

the population may not be possible even 

if the stressors are removed. In fact, 

there is some evidence that depensation 

may be a factor in some recent fisheries 

collapses.31 32 33 

Another problem associated with 

assessing the environmental impact of 

cooling water intakes is that existing 

fishery resource baselines may be 

inaccurate.34 There is much evidence 

that the world’s fisheries are in general 

decline,35 36 however, many fishery 

stocks have not been adequately 

assessed. According to a 2002 study, 

only 23 percent of U.S. managed fish 

stocks have been fully assessed and of 

these, over 40 percent are considered 

depleted or are being fished beyond 

sustainable levels.37 Another study 

estimated that more than 70 percent of 

commercial fish stocks are fully 

29 Hutchings, J.A. and R.A. Myers. 1994. What can 

be learned from the collapse of a renewable 

resource? Atlantic cod, Gadus morhus, of 

Newfoundland and Labrador. Canadian Journal of 

Fisheries and Aquatic Sciences 51:2126–2146. 

30 Goodyear, C.P. 1977. Assessing the impact of 

power plant mortality on the compensatory reserve 

of fish populations. Pages 186–195 in W. Van 

Winkle, ed., Proceedings of the Conference on 

Assessing the Effects of Power Plant Induced 

Mortality on Fish Populations. Pergamon Press, 

New York, NY. 

31 Myers, R.A., N.J. Barrowman, J.A. Hutchings, 

and A.A. Rosenburg. 1995. Population dynamics of 

exploited fish stocks at low population levels. 

Science 26:1106–1108. 

32 Hutchings, J.A. and R.A. Myers. 1994. What can 

be learned from the collapse of a renewable 

resource? Atlantic cod, Gadus morhus, of 

Newfoundland and Labrador. Canadian Journal of 

Fisheries and Aquatic Sciences 51:2126–2146. 

33 Liermann, M. and R. Hilborn. 1997. 

Depensation in fish stocks: A hierarchic Bayesian 

meta-analysis. Can. J. Fish. Aquatic. Sci. 54:1976– 

1985. 

34 Watson, R. and D. Pauly. 2001. Systematic 

distortions in world fisheries catch trends. Nature 

414:534–536. 

35 Ibid. 

36 Pew Oceans Commission. 2003. America’s 

Living Oceans: Charting a course for sea change. 

Summary Report. May 2003. Pew Oceans 

Commission, Arlington, VA. 

37 U.S. Commission on Ocean Policy. 2002. 

Developing a National Ocean Policy: Mid-Term 

Report of the U.S. Commission on Ocean Policy. 

Washington, DC. 
41590 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

exploited, overfished or collapsed.38 

Another estimated that large predatory 

fish stocks are only a tenth of what they 

were 50 years ago.39 Most studies of fish 

populations last only a few years, do not 

encompass the entire life span of the 

species examined, and do not account 

for cyclical environmental changes such 

as ENSO events, and other long term 

cycles of oceanographic productivity.40 

Although a clear and detailed picture 

of the status of all our fishery resources 

does not exist,41 it is undisputed that 

fishermen are struggling to sustain their 

livelihood despite strict fishery 

management restrictions which aim to 

rebuild fish populations. EPA shares the 

concerns expressed by expert fishery 

scientists that historical overfishing has 

increased the sensitivity of aquatic 

ecosystems to subsequent disturbance, 

making them more vulnerable to other 

stressors, including cooling water intake 

structures. 

In conclusion, EPA’s mission includes 

ensuring the sustainability of 

communities and ecosystems. Thus, 

EPA must comprehensively evaluate all 

potential threats to resources and work 

towards eliminating or reducing 

identified threats. As discussed in this 

section, EPA believes that impingement 

and entrainment losses attributable to 

cooling water intakes do pose a threat to 

aquatic organisms and through today’s 

rule is seeking to minimize that threat. 

V. Description of the Final Rule 

Clean Water Act section 316(b) 

requires that any standard established 

pursuant to section 301 or section 306 

of the CWA and applicable to a point 

source shall require that the location, 

design, construction, and capacity of 

cooling water intake structures reflect 

the best technology available for 

minimizing adverse environmental 

impact. Today’s final rule establishes 

national performance requirements for 

Phase II existing facilities that ensure 

such facilities fulfill the mandate of 

section 316(b). 

This rule applies to Phase II existing 

facilities that use or propose to use a 

cooling water intake structure to 

withdraw water for cooling purposes 

from waters of the United States and 

that have or are required to have a 

National Pollutant Discharge 

Elimination System (NPDES) permit 

issued under section 402 of the CWA. 

Phase II existing facilities include only 

those facilities whose primary activity is 

to generate and transmit electric power 

and who have a design intake flow of 50 

MGD or greater, and that use at least 25 

percent of the water withdrawn 

exclusively for cooling purposes (see 

§ 125.91). Applicability criteria for this 

rule are discussed in detail in section II 

of this preamble. 

Under this final rule, EPA has 

established performance standards for 

the reduction of impingement mortality 

and, when appropriate, entrainment (see 

§ 125.94). The performance standards 

consist of ranges of reductions in 

impingement mortality and/or 

entrainment (e.g., reduce impingement 

mortality by 80 to 95 percent and/or 

entrainment by 60 to 90 percent). These 

performance standards reflect the best 

technology available for minimizing 

adverse environmental impacts 

determined on a national categorical 

basis. The type of performance standard 

applicable to a particular facility (i.e., 

reductions in impingement only or 

impingement and entrainment) is based 

on several factors, including the 

facility’s location (i.e., source 

waterbody), rate of use (capacity 

utilization rate), and the proportion of 

the waterbody withdrawn. Exhibit V–1 

summarizes the performance standards 

based on waterbody type. 

In most cases, EPA believes that these 

performance standards can be met using 

design and construction technologies or 

operational measures. However, under 

the rule, the performance standards also 

can be met, in whole or in part, by using 

restoration measures, following 

consideration of design and 

construction technologies or operational 

measures and provided such measures 

meet restoration requirements (see 

§ 125.94(c)). 

As noted earlier in this section, 

today’s rule generally requires that 

impingement mortality of all life stages 

of fish and shellfish must be reduced by 

80 to 95 percent from the calculation 

baseline; and for some facilities, 

entrainment of all life stages of fish and 

shellfish must be reduced by 60 to 90 

percent from the calculation baseline 

(see § 125.94(b)). 

EXHIBIT V–1.—PERFORMANCE STANDARD REQUIREMENTS 

Waterbody type Capacity utilization rate Design intake flow Type of performance 

standard 

Freshwater River or Stream ............................................ Less than 15% .................. N/A 1 .................................. Impingement mortality 

only. 

Equal to or greater than 

15%. 

5% or less mean annual 

flow. 

Impingement mortality 

only. 

Greater than 5% of mean 

annual flow. 

Impingement mortality and 

entrainment. 

Tidal river, Estuary or Ocean .......................................... Less than 15% .................. N/A 1 .................................. Impingement mortality 

only. 

Equal to or greater than 

15%. 

N/A ..................................... Impingement mortality and 

entrainment. 

Great Lakes ..................................................................... Less than 15% .................. N/A ..................................... Impingement mortality 

only. 

Equal to or greater than 

15%. 

N/A ..................................... Impingement mortality and 

entrainment. 

38 Broad, W.J. and A.C. Revkin. 2003. Has the Sea 40 Jackson, J.B.C., M.X. Kirby, W.H. Berger, K.A. the recent collapse of coastal ecosystems. Science 

Given Up its Bounty? The New York Times. July 29, Bjorndal, L.W. Botsford, B.J. Bourque, R.H. 293(5530):629–638. 

2003. Bradbury, R. Cooke, J. Erlandson, J.A. Estes, T.P. 41 National Marine Fisheries Service (NMFS). 39 Myers, R.A. and B. Worm. 2003. Rapid Hughes, S. Kidwell, C.B. Lange, H.S. Lenihan, J.M. 2002. Annual Report to Congress on the Status of 

worldwide depletion of predatory fish Pandolfi, C.H. Peterson, R.S. Steneck, M.J. Tegner, U.S. Fisheries—2001. U.S. Dep. Commerce, NOAA, 

communities. Nature 423: 280–283. and R.R. Warner. 2001. Historical overfishing and Natl. Mar. Fish. Serv., Silver Spring, MD, 142 pp. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41591 

EXHIBIT V–1.—PERFORMANCE STANDARD REQUIREMENTS—Continued 

Waterbody type Capacity utilization rate Design intake flow Type of performance 

standard 

Lakes or Reservoirs ........................................................ N/A ..................................... Increase in design intake 

flow must not disrupt 

thermal stratification except where it does not 

adversely affect the 

management of fisheries. 

Impingement mortality 

only. 

1 Determination of appropriate compliance reductions is not applicable. 

This final rule identifies five Facilities that meet the velocity 

alternatives a Phase II existing facility requirements would only need to 

may use to achieve compliance with the submit application studies related to 

requirements for best technology determining entrainment reduction, if 

available for minimizing adverse subject to the performance standards for 

environmental impacts associated with entrainment. 

cooling water intake structures. Four of Under § 125.94(a)(2) and (3), a Phase 

these are based on meeting the II existing facility may demonstrate to 

applicable performance standards and the Director, either that its current 

the fifth allows the facility to request a cooling water intake structure 

site-specific determination of best configuration meets the applicable 

technology available for minimizing performance standards, or that it has 

adverse environmental impacts under selected design and construction 

certain circumstances. EPA has technologies, operational measures, 

established these compliance and/or restoration measures that, in 

alternatives for meeting the performance combination with any existing design 

standards to provide a significant degree and construction technologies, 

of flexibility to Phase II existing operational measures, and/or restoration 

facilities, to ensure that the rule measures, meet the specified 

requirements are economically performance standards in § 125.94(b) 

practicable, and to provide the ability and/or the requirements in § 125.94(c). 

for Phase II existing facilities to address Under § 125.94(a)(4), a Phase II 

unique site-specific factors. Application existing facility may demonstrate to the 

requirements vary based on the Director that it has installed and is 

compliance alternative selected and, for properly operating and maintaining a 

some facilities, include development of rule-specified and approved design and 

a Comprehensive Demonstration Study. construction technology in accordance 

Application requirements are discussed with § 125.99(a). Submerged cylindrical 

later in this section. The five wedgewire screen technology is a rulecompliance alternatives are described in specified design and construction 

the following paragraphs. technology that may be used in 

Under § 125.94(a)(1)(i) and (ii), a instances in which a facility’s cooling 

Phase II existing facility may water intake structure is located in a 

demonstrate to the Director that it has freshwater river or stream and meets 

already reduced its flow commensurate other criteria specified at § 125.99(a). 

with a closed-cycle recirculating system, In addition, under this compliance 

or that it has already reduced its design alternative, a facility or other interested 

intake velocity to 0.5 ft/s or less. If a person may submit a request to the 

facility can demonstrate to the Director Director for approval of a different 

that it has reduced, or will reduce, flow technology. If the Director approves the 

commensurate with a closed-cycle technology, it may be used by all 

recirculating system, the facility is facilities with similar site conditions 

deemed to have met the performance under his or her jurisdiction if allowed 

standards to reduce impingement under the State’s administrative 

mortality and entrainment (see § 125.94 procedures. Requests for approval of a 

(a)(1)(i)). Those facilities would not be technology must be submitted to the 

required to submit a Comprehensive Director and include a detailed 

Demonstration Study with their NPDES description of the technology; a list of 

application. If the facility can design criteria for the technology and 

demonstrate to the Director that is has site characteristics and conditions that 

reduced, or will reduce maximum each facility must possess in order to 

through-screen design intake velocity to ensure that the technology can 

0.5 ft/s or less, the facility is deemed to consistently meet the appropriate 

have met the performance standards to impingement mortality and entrainment 

reduce impingement mortality only. performance standards in § 125.94(b); 

and information and data sufficient to 

demonstrate that all facilities under the 

jurisdiction of the Director can meet the 

relevant impingement mortality and 

entrainment performance standards in 

§ 125.94(b) if the applicable design 

criteria and site characteristics and 

conditions are present at the facility. A 

Director may only approve an 

alternative technology following public 

notice and opportunity for comment on 

the approval of the technology 

(§ 125.99(b)). 

Under § 125.94(a)(5) (i) or (ii), if the 

Director determines that a facility’s 

costs of compliance would be 

significantly greater than the costs 

considered by the Administrator for a 

like facility to meet the applicable 

performance standards, or that the costs 

of compliance would be significantly 

greater than the benefits of meeting the 

applicable performance standards at the 

facility, the Director must make a sitespecific determination of best 

technology available for minimizing 

adverse environmental impact. Under 

this alternative, a facility would either 

compare its projected costs of 

compliance using a particular 

technology or technologies to the costs 

the Agency considered for a like facility 

in establishing the applicable 

performance standards, or compare its 

projected costs of compliance with the 

projected benefits at its site of meeting 

the applicable performance standards of 

today’s rule (see section IX.H). If in 

either case costs are significantly 

greater, the technology selected by the 

Director must achieve an efficacy level 

that comes as close as practicable to the 

applicable performance standards 

without resulting in significantly greater 

costs. 

During the first permit term, a facility 

that chooses compliance alternatives in 

§ 125.94(a)(2), (3), (4), or (5) may request 

that compliance with the requirements 

of this rule be determined based on the 

implementation of a Technology 

Installation and Operation Plan 

indicating how the facility will install 

and ensure the efficacy, to the extent 

practicable, of design and construction 
41592 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

technologies and/or operational 

measures, and/or a Restoration Plan 

(§ 125.95(b)(5)). The Technology 

Installation and Operation Plan must be 

developed and submitted to the Director 

in accordance with § 125.95(b)(4)(ii). 

The Restoration Plan must be developed 

in accordance with § 125.95(b)(5). 

During subsequent permit terms, if the 

facility has been in compliance with the 

construction, operational, maintenance, 

monitoring, and adaptive management 

requirements in its TIOP and/or 

Restoration Plan during the preceding 

permit term, the facility may request 

that compliance during subsequent 

permit terms be based on its remaining 

in compliance with its TIOP and/or 

Restoration Plan, revised in accordance 

with applicable adaptive management 

requirements if the applicable 

performance standards are not being 

met. 

Three sets of data are required to be 

submitted 180 days prior to expiration 

of a facility’s existing permit by all 

facilities regardless of compliance 

alternative selected (see § 122.21(r)(2)(3) 

and (5)). These are: 

• Source Water Physical Data: A 

narrative description and scaled 

drawings showing the physical 

configuration of all source waterbodies 

used by the facility, including areal 

dimensions, depths, salinity and 

temperature regimes, and other 

documentation that supports your 

determination of the waterbody type 

where each cooling water intake 

structure is located; identification and 

characterization of the source 

waterbody’s hydrological and 

geomorphological features, as well as 

the methods used to conduct any 

physical studies to determine the 

intake’s area of influence and the results 

of such studies; and locational maps. 

• Cooling Water Intake Structure 

Data: A narrative description of the 

configuration of each of its facility’s 

cooling water intake structures and 

where it is located in the waterbody and 

in the water column; latitude and 

longitude in degrees, minutes, and 

seconds for each of its cooling water 

intake structures; a narrative description 

of the operation of each of its cooling 

water intake structures, including 

design intake flows, daily hours of 

operation, number of days of the year in 

operation, and seasonal changes, if 

applicable; a flow distribution and 

water balance diagram that includes all 

sources of water to the facility, 

recirculating flows, and discharges; and 

engineering drawings of the cooling 

water intake structure. 

• Cooling Water System Data: A 

narrative description of the operation of 

each cooling water system, its 

relationship to the cooling water intake 

structures, proportion of the design 

intake flow that is used in the system, 

the number of days of the year the 

system is in operation, and seasonal 

changes in the operation of the system, 

if applicable; and engineering 

calculations and supporting data to 

support the narrative description. 

In addition to the specified data 

facilities are require to submit, some 

facilities are also required to conduct a 

Comprehensive Demonstration Study. 

Specific requirements for the 

Comprehensive Demonstration Study 

vary based on the compliance 

alternative selected. Exhibit II 

summarizes the Comprehensive 

Demonstration Study requirements for 

each compliance alternative. Specific 

details of each Comprehensive 

Demonstration Study component are 

provided in section IX of this preamble. 

EXHIBIT V–2.—SUMMARY OF COMPREHENSIVE DEMONSTRATION STUDY REQUIREMENTS FOR COMPLIANCE ALTERNATIVES 

Compliance alternative (§ 125.94(b)) Comprehensive demonstration study requirements (§ 125.95(b)) 

1—Demonstrate facility has reduced flow commensurate with closedcycle recirculating system. None. 

1—Demonstrate facility has reduced design intake velocity to ≤ 0.5 ft/s No requirements relative to impingement mortality reduction. If subject 

to entrainment performance standard, the facility must only address 

entrainment in the applicable components of its Comprehensive 

Demonstration Study, based on the compliance option selected for 

entrainment reduction. 

2—Demonstrate that existing design and construction technologies, 

operational measures, and/or restoration measures meet the performance standards. 

Proposal for Information Collection. 

Source Waterbody Flow Information. 

Impingement Mortality and/or Entrainment Characterization Study (as 

appropriate). 

Technology and Compliance Assessment Information 

—Design and Construction Technology Plan 

—Technology Installation and Operation Plan 

Restoration Plan (if appropriate). 

Verification Monitoring Plan. 

3—Demonstrate that facility has selected design and construction technologies, operational measures, and/or restoration measures that 

will, in combination with any existing design and construction technologies, operational measures, and/or restoration measures, meet 

the performance standards. 

Proposal for Information Collection. 

Source Waterbody Flow Information. 

Impingement Mortality and/or Entrainment Characterization Study (as 

appropriate). 

Technology and Compliance Assessment Information 

—Design and Construction Technology Plan 

—Technology Installation and Operation Plan 

Restoration Plan (if appropriate). 

Verification Monitoring Plan. 

4—Demonstrate that facility has installed and properly operates and Technology Installation and Operation Plan. 

maintains an approved technology. Verification Monitoring Plan. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41593 

EXHIBIT V–2.—SUMMARY OF COMPREHENSIVE DEMONSTRATION STUDY REQUIREMENTS FOR COMPLIANCE 

ALTERNATIVES—Continued 

Compliance alternative (§ 125.94(b)) Comprehensive demonstration study requirements (§ 125.95(b)) 

5—Demonstrate that a site-specific determination of BTA is appropriate Proposal for Information Collection. 

Source Waterbody Flow Information. 

Impingement Mortality and/or Entrainment Characterization Study (as 

appropriate). 

Technology Installation and Operation Plan. 

Restoration Plan (if appropriate). 

Information to Support Site Specific Determination of BTA including: 

—Comprehensive Cost Evaluation Study (cost-cost test and cost-benefit test); 

—Valuation of Monetized Benefits of Reducing IM&E (cost-benefit test 

only); 

—Site-Specific Technology Plan (cost-cost test and cost-benefit test); 

Verification Monitoring Plan. 

The requirements in today’s final rule 

are implemented through NPDES 

permits issued under section 402 of the 

CWA. Permit applications submitted 

after the effective date of the rule must 

fulfill rule requirements. However, 

facilities whose existing permit expires 

before [insert four years after date of 

publication in the FR], may request a 

schedule for submission of application 

materials that is as expeditious as 

practicable but does not exceed [insert 

three years and 180 days after date of 

publication in the FR], to provide 

sufficient time to perform the required 

information collection requirements. 

Phase II existing facilities must comply 

with this final rule when they become 

subject to an NPDES permit containing 

these requirements. 

Finally, today’s rule preserves each 

State’s right to adopt or enforce more 

stringent requirements (see § 125.90(d)). 

It also provides that if a State 

demonstrates to the Administrator that 

it has adopted alternative regulatory 

requirements in its NPDES program that 

will result in environmental 

performance within a watershed that is 

comparable to the reductions of 

impingement mortality and entrainment 

that would otherwise be achieved under 

§ 125.94, the Administrator must 

approve such alternative regulatory 

requirements (§ 125.90(c)). 

VI. Summary of Most Significant 

Revisions to the Proposed Rule 

A. Data Updates 

Based on comments received, 

additional information made available, 

and the results of subsequent analyses, 

EPA revised a number of assumptions 

that were used in developing the 

engineering costs, the information 

collection costs, the economic analyses, 

and the benefits analyses. These new 

assumptions are presented below and 

were used in the analyses in support of 

this final rule. 

1. Number of Phase II Facilities 

Since publishing the NODA, EPA 

continued to verify design flow 

information for facilities that had been 

classified as either Phase II (large, 

existing power production) or Phase III 

(smaller, power producing or 

manufacturing) facilities. This 

verification resulted in the following 

changes: One facility that was classified 

as a Phase II facility at proposal was 

reclassified as being out of scope of the 

section 316(b) regulation, as it ceased 

operating. Four facilities that were 

classified as Phase III facilities at 

proposal based on projected design 

intake flow were reclassified as Phase II 

facilities. As a result, the overall number 

of Phase II facilities increased from 540 

to 543 facilities.42 For the final rule, all 

costs, benefits, and economic analyses 

are based on the updated set of Phase II 

facilities. 

The reason for the change is that the 

Agency revised the estimated design 

intake flows for facilities that responded 

to the short-technical questionnaire EPA 

used to collect information for this rule. 

The Agency has now adopted a more 

robust set of annual flow data (using all 

the years of data collected for the final 

rule, rather than only flows for 1998 as 

reported at proposal). This change 

altered the calculated design intake 

flows for the facilities that provided 

responses to the short-technical 

questionnaire that EPA used to collect 

42 Note that these numbers are unweighted. [As 

with many surveys, EPA was able to obtain data 

from most, but not all of the facilities potentially 

subject to this rule. To estimate the characteristics 

for those facilities that were not surveyed, EPA 

assigned a statistically derived sample weight to 

those facilities for which data were collected.] On 

a sample-weighted basis, the number of Phase II 

facilities increased from 551 to 554. The number of 

Phase II facilities modeled by the Integrated 

Planning Model (IPM) increased from 531 to 535. 

data. Facilities that provided responses 

to the detailed questionnaire were 

unaffected, as the Agency collected 

maximum design intake flows directly 

through the detailed questionnaire. 

2. Technology Costs 

Since publishing the NODA, EPA 

used new information to revise the 

capital and operation and maintenance 

(O&M) costs for several compliance 

technologies, including those used as 

the primary basis for the final rule. 

Overall, the cost updates resulted in the 

following changes: total capital costs 

decreased by 5 percent and total 

operation and maintenance costs 

decrease by 3 percent. These 

comparisons are based on the raw costs, 

adjusted to year-2002 dollars, which 

have not been discounted or 

annualized.43 The revised costing 

assumptions are discussed in detail in 

section VI.3. 

3. Permitting and Monitoring Costs 

Since proposal, EPA made several 

corrections and revisions to its burden 

and cost estimates for implementing the 

information collection requirements of 

today’s rule, based on comments 

received and additional analysis. The 

following corrections and revisions 

were made since proposal: 

• EPA corrected the hourly rates for 

the statistician and biological technician 

labor categories, which were 

inadvertently transposed at proposal. 

• EPA increased the burdens 

associated with impingement and 

entrainment monitoring for the 

Impingement Mortality and Entrainment 

Characterization Study. 

43 Based on additional research conducted after 

NODA publication and prior to issuance of the final 

rule, EPA changed the projected compliance 

response for some facilities. These changes, together 

with the increase in the number of in-scope Phase 

II facilities, contributed to the change in total 

compliance costs. 
41594 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

• EPA revised the pilot study costs to 

assume that only a subset of facilities 

which are projected to install new 

technologies will perform pilot studies, 

and to be proportional to the projected 

capital costs for installing these new 

technologies in order to comply with 

the rule. EPA also developed an 

alternative national cost estimate using 

slightly different assumptions with 

regard to pilot study costs (see section 

XI). 

• EPA adjusted the facility-level costs 

to account for facilities that were 

projected to demonstrate compliance 

through the installation of a wedge-wire 

screen in a freshwater river under the 

compliance alternative in 125.94(a)(4). 

4. Net Installation Downtime for Nonrecirculating Cooling Tower Compliance 

Technologies 

In developing the proposal for this 

rule, the Agency estimated that 

technologies other than recirculating 

cooling towers would not require 

installation downtime for construction. 

However, the Agency amended this 

outlook for the NODA and published 

revised estimates of net construction 

downtimes for complying facilities 

installing a subset of technologies 

analyzed and developed as candidates 

for best technology available (BTA). 

Based on comments received on the 

NODA, the Agency has conducted 

further research into the construction 

downtimes that it used in the NODA for 

certain technologies. For the final 

regulation analysis, the Agency has 

adopted minor revisions to the 

construction downtimes for certain 

technologies, with the general effect 

being an increase in the net construction 

downtimes for a few technologies that 

the Agency views as candidates for 

reducing entrainment. (Net downtime 

was estimated by subtracting 4 weeks 

from total downtime, based on an 

assumption that facilities will schedule 

construction downtime during a 4 week 

period of normal downtime unrelated to 

the rule, for example, for routine 

maintenance.) As such, the Agency 

projects that a significant number of 

facilities expected to comply with the 

entrainment reduction requirements of 

the rule will have increased downtime 

costs compared to the NODA and the 

proposal analyses. The final costs of this 

rule reflect these changes, which are 

further discussed in Section X and the 

Technical Development Document. 

B. Regulatory Approach, Calculation 

Baseline, and Measuring Compliance 

1. Regulatory Approach 

EPA has largely adopted the proposed 

rule with some restructuring and one 

significant change: an additional 

compliance alternative, the approved 

technology option (§ 125.94(a)(4)) which 

was discussed in detail in the NODA (68 

FR 13539). The restructuring of the rule 

language now makes the reduction of 

flow commensurate with a closed-cycle 

recirculating system a separate 

compliance alternative, such that the 

rule now includes five compliance 

alternatives. In addition, EPA has 

clarified that facilities may comply with 

the rule requirement in section 125.94 

by successfully implementing the 

construction, operational, maintenance, 

monitoring, and adaptive management 

requirements in a Technology 

Installation and Operation Plan 

developed in accordance with 

§ 125.95(b)(4)(ii) and/or a Restoration 

Plan developed in accordance with 

§ 125.95(b)(5). These plans must be 

designed and adaptively managed to 

meet the applicable performance 

standards in § 125.94(b) and (c). The 

following discussion describes the 

regulatory approach of the final rule, as 

developed through the proposed rule 

and the NODA. 

EPA proposed requirements for the 

location, design, construction, and 

capacity of cooling water intakes based 

on the waterbody type and the volume 

of water withdrawn by a facility (67 FR 

17122). EPA grouped waterbodies into 

five categories, as in the Phase I 

regulation—freshwater rivers and 

streams, lakes and reservoirs, Great 

Lakes, estuaries and tidal rivers, and 

oceans. In general, the more sensitive or 

biologically productive the waterbody, 

the more stringent were the 

requirements proposed. The proposed 

requirements also varied based on the 

percentage of the source waterbody 

withdrawn and the capacity utilization 

rate. 

Under the proposed rule, a facility 

could choose one of three compliance 

options: (1) Demonstrate that the facility 

currently meets the specified 

performance standards, (2) select and 

implement design and construction 

technologies, operational measures, or 

restoration measures that will, in 

combination with any existing design 

and construction technologies, 

operational measures, or restoration 

measures, meet the specified 

performance standards, and/or (3) 

demonstrate that the facility qualifies 

for a site-specific determination of best 

technology available, because its costs 

of compliance are significantly greater 

than those considered by EPA during 

the development of the proposed rule or 

the facility’s costs of compliance would 

be significantly greater than the benefits 

of compliance with the proposed 

performance standards at the facility. A 

facility could also use restoration 

measures in addition to or in lieu of 

design and construction technologies 

and/or operational measures to achieve 

compliance under any of the 

compliance options. 

In the NODA, EPA sought comment 

on a proposed fourth compliance option 

(68 FR 13522, 1359–41). In response to 

comments expressing concern that the 

proposed Comprehensive 

Demonstration Study requirements (at 

§ 125.95(b)) would impose a significant 

burden on permit applicants, EPA 

examined an additional, more 

streamlined compliance option under 

which a facility could implement 

certain specified technologies that have 

been predetermined by EPA or the 

permitting authority to be highly likely 

to meet applicable performance 

standards, in exchange for not having to 

perform most of the elements of the 

proposed Comprehensive 

Demonstration Study. 

Two variations were offered in the 

NODA: (1) EPA would evaluate the 

effectiveness of specific technologies in 

achieving an 80 to 95 percent reduction 

in impingement mortality and a 60 to 90 

percent reduction in entrainment and 

then specify applicability criteria to 

ensure that the technology would meet 

the performance standards at facilities 

satisfying the criteria, or (2) EPA would 

establish the criteria and a process for 

States to pre-approve intake structure 

control technologies as likely to meet 

the performance standards. For facilities 

located on freshwater rivers and streams 

and meeting specified criteria, 

wedgewire screens would be expected 

to meet the proposed performance 

standards. EPA also recognized that 

these two variations are not mutually 

exclusive and either or both could be 

adopted in the final rule. 

To a large extent, EPA is adopting the 

regulatory framework put forth in the 

proposed rule and supplemented by the 

NODA. To the three compliance 

alternatives originally proposed, EPA 

has added an approved technology 

alternative discussed in the NODA and 

included reduction of flow 

commensurate with closed-cycle 

cooling as a distinct alternative. 

2. Calculation Baseline 

Also, in response to comments that 

the proposed definition for the 

calculation baseline was overly vague, 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41595 

EPA published in the NODA a series of 

additional considerations regarding the 

calculation baseline and a new 

definition of it taking these 

considerations into account (68 FR 

13522, 13580–81). The specifications 

are as follows and the new definition is 

in today’s final rule at § 125.93. 

• Baseline cooling water intake 

structure is located at, and the screen 

face is parallel to, the shoreline or 

another depth if this would result in 

higher baseline impingement mortality 

and entrainment than the surface. EPA 

believes it is appropriate to allow credit 

in reducing impingement mortality from 

screen configurations that employ 

angling of the screen face and currents 

to guide organisms away from the 

structure before they are impinged. 

• Baseline cooling water intake 

structure opening is located at or near 

the surface of the source waterbody. 

EPA believes it is appropriate to allow 

credit in reducing impingement 

mortality or entrainment due to 

placement of the opening in the water 

column. 

• Baseline cooling water intake 

structure has a traveling screen with the 

standard 3/8 inch mesh size commonly 

used to keep condensers free from 

debris. This allows a more consistent 

estimation of the organisms that are 

considered ‘‘entrainable’’ vs. 

‘‘impingeable’’ by specifying a standard 

mesh size that can be related to the size 

of the organism that may potentially 

come in contact with the cooling water 

intake structure. 

• Baseline practices, procedures, and 

structural configurations are those that 

the facility would maintain in the 

absence of any structural or operational 

controls implemented in whole or in 

part for the purpose of reducing 

impingement mortality and 

entrainment. This recognizes and 

provides credit for any structural or 

operational controls, including flow or 

velocity reductions, a facility had 

adopted that reduce impingement 

mortality or entrainment. 

EPA also requested comment on 

allowing an ‘‘as built’’ approach under 

which facilities could choose to use the 

existing level of impingement mortality 

and entrainment as the calculation 

baseline if they did not wish to take 

credit for the previously adopted 

measures. This could significantly 

simplify the monitoring and 

calculations necessary to determine the 

baseline. 

In the NODA, EPA also discussed an 

approach to compliance under which 

facilities would have an ‘‘optimization 

period’’ during which they would not be 

required to meet performance standards 

but, rather, would install, operate and 

maintain the selected control 

technologies to minimize impingement 

mortality and entrainment. EPA 

suggested several possible durations for 

this optimization period, and also 

requested comment on not specifying 

the duration, but instead leaving it up 

to the Director. 68 FR 13586 (March 19, 

2003). 

For the final rule, EPA adopted the 

NODA definition of calculation baseline 

with some modifications. More 

specifically, EPA clarified the 

calculation baseline to include 

consideration of intake depth other than 

at or near the surface in determining the 

baseline. EPA also adopted the ‘‘as 

built’’ approach for the calculation 

baseline, which allows facilities to use 

current levels of impingement mortality 

and entrainment as the calculation 

baseline if the facility is configured 

similarly to the criteria set up for the 

calculation baseline. 

Finally, EPA clarified how 

compliance with the requirements in 

§ 125.94 should be determined. In 

particular, the final rule provides that 

compliance during the first permit term 

(and subsequent permit terms if 

specified conditions are met) may be 

determined based on compliance with 

the construction, operational, 

maintenance, monitoring, and adaptive 

management requirements in an 

approved Technology Installation and 

Operation Plan and/ or an approved 

Restoration Plan, that has been 

developed in accordance with specified 

requirements to meet the applicable 

performance standards. 

3. Measuring Compliance 

EPA has clarified how compliance 

will be measured. At proposal, EPA 

received comment from the industry 

that there were uncertainties associated 

with how compliance with the proposed 

requirements, particularly the numeric 

impingement mortality and entrainment 

performance standards, would be 

determined. Under the proposed rule 

and NODA, determining compliance, 

while obviously dependent on the 

compliance alternative selected, would, 

in general, require the development of 

waterbody characterization data, 

including key criteria (species, 

parameters, etc.) to be measured and 

monitored; a determination of baseline 

environmental impacts; implementation 

of cooling water intake technologies 

(assuming the facility does not already 

meet applicable performance standards 

and pursues this alternative); 

monitoring the selected criteria; and an 

evaluation of compliance with the 

applicable numeric impingement 

mortality and/or entrainment permit 

standard. The industry stakeholders 

were concerned that using the 

performance standard to set enforceable 

performance requirements would 

require facilities to collect and analyze 

greater amounts of data than EPA 

projected to be able to account for the 

variability inherent in biological and 

efficacy data needed to support 

compliance determinations in spite of 

overall good technology performance. 

These stakeholders stated that setting 

enforceable performance standards 

would lead to greater administrative 

burdens and delays when determining 

numeric standards and monitoring 

requirements to determine compliance. 

They were also concerned that 

establishing numeric standards would 

stifle innovation because of fears that a 

technology would not perform as 

anticipated. These stakeholders 

suggested that the performance 

standards in the rule serve as a 

consistent basis for setting permit 

conditions and for identifying 

technologies; installing, operating, and 

maintaining the chosen technology; 

performing compliance monitoring; and 

refining or adjusting operation, 

maintenance, or other factors in light of 

initial monitoring. 

Today’s rule allows facilities to 

develop and implement a Technology 

Installation and Operation Plan that 

would, when used, serve as the primary 

mechanism upon which compliance 

with the performance standard 

requirements of this rule is determined. 

EPA has established this compliance 

mechanism because it will ensure that 

Phase II existing facilities will 

continually be required to achieve a 

level of performance that constitutes, for 

them, best technology available for 

minimizing adverse environmental 

impact. For facilities that choose to 

comply with applicable requirements in 

whole or in part through the use of 

restoration measures, the Restoration 

Plan would serve a similar function. 

The Restoration Plan is discussed in 

detail in section IX. 

An existing facility that chooses to 

use a Technology Installation and 

Operation Plan must (1) select design 

and construction technologies, 

operational measures, and/or restoration 

measures that will meet the 

performance standards, and (2) prepare 

a Technology Installation and Operation 

Plan documenting what, how and when 

it will install, operate, maintain, 

monitor, assess, and adaptively manage 

the design and construction 

technologies and operational measures 

to meet the performance standards, 

including operational parameters and 
41596 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

inspection schedules, etc. Each facility 

using a Technology Installation 

Operation Plan must specify key 

parameters regarding monitoring (e.g., 

parameters to be monitored, location, 

and frequency), optimization activities 

and schedules for undertaking them, 

ways of assessing efficacy (including 

adaptive management plan for revising 

design and construction technologies or 

operational measures) that ensure that 

such technologies and measures are 

effectively implemented, and revised as 

needed to meet performance standards. 

This plan must be reviewed and 

approved by the Director and evaluated 

for sufficiency and/or revised at each 

permit term to ensure that the facility is 

moving expeditiously toward 

attainment of the applicable 

performance standards. Once approved, 

each Phase II existing facility must 

implement the plan according to its 

terms. Compliance with the final rule’s 

performance standards during the 

permit term will be assessed based on 

the terms of the plan. If a facility does 

not comply with the plan, the Director 

has discretion to implement the 

performance standards or requirements 

through specifying numeric 

impingement mortality and entrainment 

requirements or technology prescription 

(for the site-specific alternative) in the 

permit. In addition, a facility that is 

unable to meet the applicable 

performance standards using the 

Technology Installation and Operation 

Plan approach may request in a 

subsequent permit that the Director 

make a site-specific determination of 

best technology available in accordance 

with § 125.94(a)(5). 

Under these provisions, compliance is 

determined in terms of whether the 

facility is implementing, in accordance 

with the Technology Installation and 

Operation Plan schedule, the 

technologies, measures and practices 

determined by the Director to be the 

best technologies available for 

minimizing adverse environmental 

impact for that facility. The Section 

316(b) requirements for the facility are 

expressed non-numerically, which is 

analogous to the use of best 

management practices under other 

provisions of the CWA. See, e.g., 

sections 402(a) and 402(p). While EPA 

has been able to calculate ranges for 

national performance standards based 

on model technologies, EPA has 

insufficient data to determine—as it 

routinely can do in the context of 

effluent limitations guidelines and 

standards—that use of those model 

technologies will consistently result in 

achievement of those standards. 

The record persuades EPA that there 

is uncertainty associated with the 

application and long-term efficacy of 

these technologies at all facilities under 

the multitude of different site-specific 

factors and conditions under which 

these technologies might have to 

perform. In addition, even at a single 

site, there is substantial year-to-year 

variability in species abundance and 

composition, as well as other natural 

and anthropogenic factors, that may 

affect the performance of a particular 

technology installed at the facility and 

it is unclear how this would affect the 

efficacy of the technology. The 

Technology Installation and Operation 

Plan provisions are intended to account 

for this. For example, meeting 

numerical reduction standards may not 

be possible at some sites either because 

hydrological conditions are not 

conducive to technological 

effectiveness, or due to species 

sensitivity. A Technology Installation 

and Operation Plan allows a facility, 

working with the Director, to identify, 

install, and adaptively manage 

technologies suited to its particular site 

conditions. In addition, measuring 

impingement mortality and entrainment 

reduction is difficult and would require 

a substantial amount of multi-year 

biological data and analysis is 

burdensome for the facility to develop, 

is often well beyond the type of 

information EPA can expect State 

Directors to be able to develop when 

monitoring compliance. A Technology 

Installation and Operation Plan 

simplifies enforcement: if a facility fails 

to meet the schedules and other terms 

of its plan, it is violating its section 

316(b) requirements; there is no need to 

engage in extensive debate about the 

meaning of complex biological data. 

This does not mean that biological 

monitoring and assessment of success in 

meeting applicable performance 

standards is not important. If fact, it is 

critical to the compliance approach 

adopted in the rule in that it informs 

facilities and permit authorities when 

adaptive management, including 

revisions to the Technology Installation 

and Operation Plan, are needed to meet 

the performance standards. 

The Technology Installation and 

Operation Plan provisions also reflect 

that there is uncertainty about how long 

it would take a facility to adaptively 

manage the technology and determine 

the appropriate operating conditions for 

the technology to meet the applicable 

performance requirements. Data and 

comments available to EPA suggest that 

it is common for existing facilities to 

adjust technologies over time in order to 

achieve optimum performance and, 

therefore, an adaptive management 

approach as specified under a plan is 

appropriate. See documentation at 

DCN# 1–3019–BE, 4–1830, and 6–5001. 

EPA understands that adaptive 

management is going to be necessary for 

a number of facilities because there are 

relatively few rigorous evaluations of 

efficacy under different site and 

operating conditions. The available 

studies may also be limited in the 

numbers and types of species that they 

have evaluated and they may not show 

the long term demonstrated 

effectiveness (and/or consistency of 

effectiveness) of the technology with the 

added uncertainties associated with the 

variability of natural biological systems. 

By requiring facilities to employ 

adaptive management principles, EPA 

assures that the facility will be 

implementing, on an ongoing basis, the 

best array of technologies available to 

them. 

As noted above, the Technology 

Installation and Operation Plan 

provisions also simplify implementation 

because they identify the specific 

compliance requirements needed to 

meet the performance standard ranges 

and reduce some of the burden 

associated with measuring and 

enforcing compliance with these ranges 

for both existing facilities and Directors. 

Directors and facilities may find use of 

a Technology Installation and Operation 

Plan preferable because it is less feasible 

to develop and accurately evaluate 

biological monitoring data over a 

relatively short period, as would be 

required by measuring compliance 

against a numeric performance 

standard. Rather, the plan provisions 

allow implementation to be adaptive, 

and allow for data development and 

assessment to proceed in a manner that 

is appropriate for the facility, 

technology, and waterbody 

characteristics. 

EPA has the legal authority to express 

section 316(b) requirements in terms of 

design criteria, in addition to or in place 

of enforceable numeric performance 

standards. EPA employed a design 

criterion approach in the Phase I rule, 

when EPA was able to identify a single 

nationally available and economically 

practicable technology for the category 

of new facilities as a whole, in that case 

closed-cycle recirculating cooling 

technology. In this rule, EPA was not 

able to identify a uniform set of 

technologies that would be available 

and economically practicable for all 

existing facilities, but EPA was able to 

articulate a uniform nationally 

applicable principle in the form of the 

performance standards in § 125.94(b), by 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41597 

which such technologies could be 

identified by the Director and 

implemented through the use of a 

Technology Installation and Operation 

Plan designed to achieve them. While 

the technology solution was different in 

Phase I and Phase II, the legal principle 

is the same. In addition, EPA has the 

legal authority to identify section 316(b) 

requirements as an evolving set of 

technologies, rather than a single 

technology array fixed in time. Section 

316(b) requires that any technology 

selected under that section must be the 

best available to the facility. This term 

encompasses consideration of 

effectiveness, costs, non-water quality 

environmental impacts, feasibility 

issues and a host of other considerations 

relevant to existing facilities. See 

section 304(b)(2)(B). The record 

indicates that for some facilities, the 

question of what are available 

technologies and, among those, what is 

the best technology, may change over 

time. A Technology Installation and 

Operation Plan is intended to assure 

that at all times a facility is 

implementing a technology—or a 

technology plan—that reflects the best 

of all technologies consistent with 

uniform guiding principles in the form 

of performance standards available to 

them in light of their site-specific 

circumstances. 

Finally, EPA notes that the way in 

which performance standards guide 

technology selection and 

implementation varies slightly among 

the five compliance options. For 

facilities complying with § 125.94(a)(1), 

the technologies identified are so 

effective that EPA is confident that any 

facility employing them will meet the 

performance standards, so a Technology 

Installation and Operation Plan and 

performance monitoring are not 

required. Because these technologies are 

not available to all Phase II existing 

facilities, however, EPA has provided 

alternative compliance options. For 

facilities complying in accordance with 

§ 125.94(a)(2), (3), or (4), compliance is 

generally achieved by implementation 

of a Technology Installation and 

Operation Plan designed to meet 

applicable performance standards. 

Finally, for facilities that comply in 

accordance with § 125.94(a)(5) for 

whom even compliance in accordance 

with § 125.94(a)(2), (3), or (4) is not 

available because of significantly higher 

costs, compliance is achieved by 

implementation of a Technology 

Installation and Operation Plan that 

achieves an efficacy as close as 

practicable to the applicable 

performance standards. 

4. Site-Specific Requirements 

a. Costs Significantly Greater Than Costs 

Considered by the Administrator 

In today’s final rule, a facility that 

demonstrates to the Director that the 

costs of compliance with the 

performance standards and/or 

restoration requirements would be 

significantly greater than the costs 

considered by the Administrator for a 

similar facility, will be given a sitespecific determination of best 

technology available for minimizing 

adverse environmental impact. The 

standards of the rule have not changed 

since proposal, with the exception of 

one clarification: in the final rule, the 

alternative site-specific requirements 

established by the Director must achieve 

an efficacy that is as close as practicable 

to the performance standards and/or 

restoration requirements specified in 

§ 125.94(b) and (c). This was not 

specified in the proposed rule language. 

In addition, today’s final rule also 

explains how a facility should calculate 

costs considered by the Administrator 

for a similar facility, for comparison 

with the costs of compliance for the 

facility. EPA details these steps in 

§ 125.94(a)(5)(i)(A)–(F). 

In the proposed rule, submittal 

requirements for facilities requesting a 

variance based upon a cost-cost test 

were identical to those for facilities 

requesting a variance based on a costbenefit test. Thus, a facility requesting a 

site-specific determination based on a 

cost-cost comparison had to submit 

three studies: the Cost Evaluation Study, 

the Valuation of Monetized Benefits of 

Reducing Impingement and 

Entrainment, and the Site-Specific 

Technology Plan. In the final rule, by 

contrast, a facility must submit only the 

Cost Evaluation Study and the SiteSpecific Technology Plan. 

Under the Comprehensive Cost 

Evaluation Study detailed at proposal, a 

facility must submit detailed 

engineering cost estimates to document 

the costs of implementing the 

technologies and/or operational 

measures in the facility’s Design and 

Construction Plan. In the final rule, the 

facility must provide, in addition to the 

engineering cost estimates, a 

demonstration that the costs 

significantly exceed the benefits of 

complying with the applicable 

performance standards. EPA did not 

make significant changes to the 

requirements under the Site-Specific 

Technology Plan. 

In summary, the major changes in the 

cost-cost analysis are as follows: 

• In the final rule, EPA has specified 

how a facility must ‘‘calculate costs 

considered by the Administrator’’ for 

comparison with the facility’s estimate 

of the costs of compliance with the final 

rule, 

• Elimination of the requirement to 

submit a Valuation of Monetized 

Benefits of Reducing Impingement and 

Entrainment, and 

• Addition of the requirement to 

demonstrate that the costs significantly 

exceed the costs considered by the 

Administrator for a similar facility, 

under the Cost Evaluation Study. 

b. Costs Significantly Greater Than 

Benefits 

In today’s final rule, a facility that 

demonstrates to the Director that the 

costs of compliance with the 

performance standards and/or 

restoration requirements would be 

significantly greater than the benefits 

will be given a site-specific 

determination of best technology 

available for minimizing adverse 

environmental impact. The standards of 

the rule have not changed since 

proposal, with the exception of one 

clarification: in the final rule, the 

alternative site-specific requirements 

established by the Director must achieve 

an efficacy that is as close as practicable 

to the performance standards and/or 

restoration requirements specified in 

§ 125.94(b) and (c). This was not 

specified in the proposed rule language. 

In the final rule, as in the proposal, a 

facility requesting a site-specific 

determination based on a cost-benefit 

comparison must submit three studies: 

the Cost Evaluation Study, the Benefits 

Valuation Study (referred to in proposal 

as Valuation of Monetized Benefits of 

Reducing Impingement and 

Entrainment), and the Site-Specific 

Technology Plan. The final rule has 

both added and clarified requirements 

for the first two components relative to 

the proposal, but has provided no 

substantive changes in the requirements 

for the Site-Specific Technology Plan. 

Under the Comprehensive Cost 

Evaluation Study detailed at proposal, a 

facility must submit detailed 

engineering cost estimates to document 

the costs of implementing the 

technologies and/or operational 

measures in the facility’s Design and 

Construction Plan. In the final rule, the 

facility must provide, in addition to the 

engineering cost estimates, a 

demonstration that the costs 

significantly exceed the benefits of 

complying with the applicable 

performance standards. 

Additional clarifications are found in 

the Benefits Valuation Study. In the 

proposed rule, a facility was required to 

submit (1) a description of the 
41598 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

methodology used to estimate the 

benefits’ value, (2) the basis for 

assumptions and quantitative estimates, 

and (3) an uncertainty analysis. In the 

final rule, EPA has retained the three 

submittal requirements. Under the first 

component, EPA has specified the 

categories of potential valuation 

estimates in the final rule, namely 

commercial, recreational and ecological 

benefits. EPA has added that a facility 

should include non-use benefits if 

applicable. To the second component, 

EPA has added that the basis may 

include a determination of entrainment 

survival if the Director approved such a 

study. Requirements for the uncertainty 

analysis remain unchanged from 

proposal. In the final rule, EPA has 

added that a facility will be required to 

submit peer review of the items 

submitted (upon the Director’s request) 

and a narrative description of nonmonetized benefits that would result at 

the site if the facility was to meet 

applicable performance standards. 

In summary, the major changes in the 

cost-benefit analysis are as follows: 

• Facilities will be required to 

achieve an efficacy that is ‘‘as close as 

practicable’’ to performance standards 

and/ or restoration requirements, 

• Facilities will need to specifically 

demonstrate that costs are significantly 

greater than the benefits of compliance, 

and 

• Facilities will have additional 

requirements under the Benefits 

Valuation Study. 

VII. Basis for the Final Regulation 

A. Why Is EPA Establishing a Multiple 

Compliance Alternative Approach for 

Determining Best Technology Available 

for Minimizing Adverse Environmental 

Impact? 

Today’s final rule authorizes a Phase 

II existing facility to choose one of five 

alternatives for establishing the best 

technology available for minimizing 

adverse environmental impacts at the 

facility. A facility may (1) demonstrate 

that it has reduced or will reduce its 

cooling water intake flow commensurate 

with a closed-cycle, recirculating 

system, and or that it has reduced, or 

will reduce, the maximum throughscreen design intake velocity to 0.5 ft/ 

s or less; (2) demonstrate that its 

existing design and construction 

technologies, operational measures, 

and/or restoration measures meet the 

applicable performance standards and 

restoration requirements; (3) 

demonstrate that it has selected design 

and construction technologies, 

operational measures, and/or restoration 

measures that will, in combination with 

any existing design and construction 

technologies, operational measures, 

and/or restoration measures, meet the 

applicable performance standards and 

restoration requirements; (4) 

demonstrate that it will install or has 

installed and properly operates and 

maintains an approved design and 

construction technology; or (5) 

demonstrate that it has selected, 

installed, and is properly operating and 

maintaining, or will install and properly 

operate and maintain, design and 

construction technologies, operational 

measures, and/or restoration measures 

that the Director has determined to be 

the best technology available for the 

facility based on application of a 

specified cost-to-cost test or a cost-tobenefit test. The basis for each of the 

five compliance alternatives is 

explained in section VII.C. of this 

preamble. 

The rule establishes performance 

standards for the reduction of 

impingement mortality and 

entrainment. EPA established these 

performance standards in part based on 

a variety of technologies, but the rule 

does not mandate the use of any specific 

technology. These performance 

standards vary by waterbody type (i.e., 

freshwater river/stream, estuary/tidal 

river, ocean, Great Lake, or lake/ 

reservoir) and the capacity utilization 

rate of the facility. They may be met in 

whole or in part using restoration 

measures after demonstrating, among 

other things, that the facility has 

evaluated the use of design and 

construction technologies and 

operational measures at the site. The 

basis for the performance standards is 

explained in section VII.B. of this 

preamble and the basis for the 

restoration requirements is explained at 

section VII.F. of this preamble. For a 

more detailed description of the rule, 

see sections V and IX of this preamble. 

These requirements reflect the best 

technology available for minimizing 

adverse environmental impact from 

cooling water intake structures. 

EPA adopted this regulatory scheme 

because it provides a high degree of 

flexibility for existing facilities to select 

the most effective and efficient 

approach and technologies for 

minimizing adverse environmental 

impact associated with their cooling 

water intake structures. This approach 

also reflects EPA’s judgment that, given 

the wide range of various factors that 

affect the environmental impact posed 

by Phase II existing facilities, different 

technologies or different combinations 

of technologies can be used and 

optimized to achieve the performance 

standards. 

B. Why and How Did EPA Establish the 

Performance Standards at These Levels? 

1. Overview of Performance Standards 

The final rule establishes two types of 

performance standards, one that 

addresses impingement mortality and 

one that addresses entrainment. EPA 

used impingement mortality and 

entrainment as a metric for performance 

because these are primary and distinct 

types of harmful impacts associated 

with the use of cooling water intake 

structures (see also section IV). Both the 

impingement mortality and the 

entrainment performance standards 

apply to facilities demonstrating 

compliance under alternatives two, 

three, and four, described above 

(§ 125.94(a)(2), (3), and (4)). In addition, 

the Director’s site-specific alternative 

requirements must be as close as 

practicable to the applicable 

performance standards under § 125.94. 

Performance standards for entrainment 

do not apply to facilities with low 

utilization capacity, those with a design 

intake flow of five percent or less of the 

mean annual flow of a freshwater river 

or stream, and those that withdraw 

cooling water from a lake (other than 

one of the Great Lakes) or reservoir 

because such facilities have a low 

propensity for causing significant 

entrainment impacts due to limited 

facility operation, low intake flow, or 

general waterbody characteristics. The 

impingement mortality performance 

standard requires a Phase II existing 

facility that complies under 

§ 125.94(a)(2), (3), and (4) to reduce 

impingement mortality of all life stages 

of fish and shellfish by 80 to 95 percent 

from the calculation baseline. 

Both an entrainment performance 

standard and an impingement mortality 

standard apply to facilities with a 

capacity utilization rate of 15 percent or 

greater and that withdraw cooling water 

from a tidal river, estuary, ocean, one of 

the Great Lakes, as well as facilities that 

use cooling water from a freshwater 

river or stream and the design intake 

flow of the cooling water intake 

structure is greater than five percent of 

the mean annual flow because EPA 

believes that these facilities cause more 

significant entrainment impacts. The 

entrainment standard, where applicable, 

requires a Phase II facility to reduce 

entrainment of all life stages of fish and 

shellfish by 60 to 90 percent from the 

calculation baseline. 

2. Basis for Performance Standards 

Overall, the performance standards 

that reflect best technology available 

under today’s final rule are not based on 

a single technology but, rather, are 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41599 

based on consideration of a range of 

technologies that EPA has determined to 

be commercially available for the 

industries affected as a whole and have 

acceptable non-water quality 

environmental impacts, except for some 

potential regional energy (reliability) 

impacts that will be minimized to the 

extent possible through flexible 

compliance options. Because the 

requirements implementing section 

316(b) are applied in a variety of 

settings and to Phase II existing facilities 

of different types and sizes, no single 

technology is most effective at all 

existing facilities, and a range of 

available technologies has been used to 

derive the performance standards. 

EPA developed the performance 

standards for impingement mortality 

reduction based on an analysis of the 

efficacy of the following technologies: 

(1) Design and construction 

technologies such as fine and widemesh wedgewire screens, as well as 

aquatic filter barrier systems, that can 

reduce mortality from impingement by 

up to 99 percent or greater compared 

with conventional once-through 

systems; (2) barrier nets that may 

achieve reductions of 80 to 90 percent; 

and (3) modified screens and fish return 

systems, fish diversion systems, and 

fine mesh traveling screens and fish 

return systems that have achieved 

reductions in impingement mortality 

ranging from 60 to 90 percent as 

compared to conventional once-through 

systems. 

Available performance data for 

entrainment reduction are not as 

comprehensive as impingement data. 

However, aquatic filter barrier systems, 

fine mesh wedgewire screens, and fine 

mesh traveling screens with fish return 

systems have been shown to achieve 80 

to 90 percent or greater reduction in 

entrainment compared with 

conventional once-through systems. 

EPA notes that screening to prevent 

organism entrainment may cause 

impingement of those organisms 

instead. 

3. Discussion of Key Aspects of 

Performance Standards 

The performance standards at 

§ 125.94(b)(1),(2), and (3) are based on 

the type of waterbody in which the 

intake structure is located, the volume 

of water withdrawn by a facility, and 

the facility capacity utilization rate. 

Under the final rule, EPA has grouped 

waterbodies into five categories: (1) 

Freshwater rivers or streams, (2) lakes or 

reservoirs, (3) Great Lakes, (4) tidal 

rivers and estuaries, and (5) oceans. The 

Agency considers location, one aspect of 

which is waterbody type, to be an 

important factor in addressing adverse 

environmental impact caused by cooling 

water intake structures. Because 

different waterbody types have the 

potential for different adverse 

environmental impacts, the 

requirements to minimize adverse 

environmental impact vary by 

waterbody type. 

The reproductive strategies of tidal 

river and estuarine species, together 

with other physical and biological 

characteristics of those waters, make 

them more susceptible than other 

waterbodies to impacts from cooling 

water intake structures (66 FR 288857– 

288859; 68 FR 17140). In contrast, many 

aquatic organisms found in non-tidal 

freshwater rivers and streams are less 

susceptible to entrainment due to their 

demersal (bottom-dwelling) nature and 

the fact that they do not typically have 

planktonic (free-floating) egg and larval 

stages (66 FR 28857; 68 FR 17140). 

Comments on the proposed Phase II 

existing facility rule also acknowledge 

that waterbody type is an important 

factor in assessing the impacts of 

cooling water intake structures, 

although some commenters preferred a 

site-specific approach, and others 

maintained that all waters deserve the 

most rigorous technology. A number of 

States supported EPA’s proposed 

approach. 

Absent entrainment control 

technologies, entrainment at a particular 

site is generally proportional to intake 

flow at that site. As discussed above, 

EPA believes it is reasonable to vary 

performance standards by the potential 

for adverse environmental impact in a 

waterbody type. EPA is limiting the 

requirement for entrainment controls in 

fresh waters to those facilities that 

withdraw the largest proportion of water 

from freshwater rivers or streams 

because they have the potential to 

impinge and entrain larger numbers of 

fish and shellfish and therefore have a 

greater potential to cause adverse 

environmental impact. EPA is not 

requiring entrainment reductions in 

freshwater rivers or streams where 

facilities withdraw 5 percent or less of 

the source water annual mean flow 

because such facilities generally have a 

low propensity for causing significant 

entrainment impacts due to the low 

proportion of intake flow in 

combination with the characteristics of 

the waterbody. 

There are additional performance 

standards for facilities withdrawing 

from a lake (other than one of the Great 

Lakes) or a reservoir. If such a facility 

proposes to increase the design intake 

flow of the cooling water intake 

structure, the increase in total design 

intake flow must not disrupt the natural 

thermal stratification or turnover pattern 

of the source water except in cases 

where the disruption does not adversely 

affect the management of fisheries 

§ 125.94(b)(3)(iii)). The natural thermal 

stratification or turnover pattern of a 

lake is a key characteristic that is 

potentially affected by the intake flow 

(which can alter temperature and/or 

mixing of cold and warm water layers) 

and location of cooling water intake 

structures within such waterbodies. 

Cooling water intake structures 

withdrawing from the Great Lakes are 

required to reduce fish and shellfish 

impingement mortality by 80 to 95 

percent and to reduce entrainment by 60 

to 90 percent. As described in the Phase 

I proposed rule (65 FR 49086) and 

NODA (66 FR 28858), EPA believes that 

the Great Lakes are a unique system that 

should be protected to a greater extent 

than other lakes and reservoirs. Similar 

to oceans, large lakes such as the Great 

Lakes can possess estuarine-like 

environments in the lower reaches of 

tributary streams. For example, within 

the U.S., a total of 1,370 distinct coastal 

wetlands fringe the Great Lakes and the 

channels that connect the lakes. (2– 

016A Herdendorf, C.E. Great Lakes 

estuaries. Estuaries, 13(4): 493–503. 

1990, pg. 493). The Agency is therefore 

specifying entrainment controls as well 

as impingement mortality controls for 

the Great Lakes. EPA has not applied 

the entrainment performance standard 

to lakes other than the Great Lakes 

because, in general, these waterbodies 

contain aquatic organisms that tend to 

be less impacted by entrainment than 

organisms in estuaries or fresh water 

rivers or streams. 

The performance standards for 

facilities with cooling water intake 

structures located in a tidal river or 

estuary and with a capacity utilization 

rate of 15 percent or greater are to 

reduce impingement mortality by 80 to 

95 percent and entrainment by 60 to 90 

percent for fish and shellfish. As 

discussed previously, EPA believes 

estuaries and tidal rivers are more 

susceptible than other waterbodies to 

adverse impacts from impingement and 

entrainment. 

The performance standards for 

facilities with cooling water intake 

structures located in an ocean are to 

reduce impingement mortality by 80 to 

95 percent and entrainment by 60 to 90 

percent for fish and shellfish. EPA is 

establishing requirements for facilities 

withdrawing from oceans that are 

similar to those for tidal rivers and 

estuaries because the coastal zone of 

oceans (from which coastal cooling 

water intake structures withdraw water) 
41600 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

are highly productive areas for fish and 

shellfish. (See the Phase I proposed rule 

(65 FR 45060) and documents in the 

record for the Phase I new facility rule 

(Docket # W–00–03) such as 2–013A 

through O, 2–019A–R11, 2–019A–R12, 

2–019A–R33, 2–019A–R44, 2–020A, 3– 

0059). EPA is also concerned about the 

extent to which fishery stocks that rely 

upon tidal rivers, estuaries and oceans 

for habitat are overutilized and seeks to 

minimize the impact that cooling water 

intake structures may have on these 

species or forage species on which these 

fishery stocks may depend. Recent data 

demonstrate that approximately 78% of 

the fish stocks managed by the National 

Oceanic and Atmospheric 

Administration’s National Marine 

Fishery Service (NMFS) are fully 

exploited, overfished, or collapsed 

(America’s Living Oceans: Charting a 

Course for Sea Change, Pew Oceans 

Commission, June 4, 2003). (See also 

documents 2–019A–R11, 2–019A–R12, 

2–019A–R33, 2–019A–R44, 2–020A, 2– 

024A through O, and 3–0059 through 3– 

0063 in the record of the Final New 

Facility Rule (66 FR 65256), Docket # 

W–00–03). 

In accordance with the Phase II rule, 

facilities that operate with a capacity 

utilization rate of less than 15 percent 

are subject to the performance standard 

for impingement mortality only. EPA is 

not requiring, in today’s rule, that these 

facilities control entrainment. EPA has 

several reasons for this. First, EPA has 

determined that entrainment control 

technology is not economically 

practicable in view of the reduced 

operating levels of these facilities. These 

facilities also tend to operate most often 

in mid-winter or late summer, which are 

times of peak energy demand but 

periods of generally low abundance of 

entrainable life stages of fish and 

shellfish. Finally, the total volume of 

water withdrawn by these facilities is 

significantly lower than for facilities 

operating at or near peak capacity, and 

as noted above, entrainment at a site is 

generally proportional to flow, absent 

entrainment controls. Consequently, 

EPA determined that it was neither 

necessary nor cost-effective for these 

facilities to reduce entrainment where 

the total volume of water withdrawn 

and the number of organisms that would 

be protected from entrainment is likely 

to be small. EPA is also allowing 

facilities with multiple, distinct cooling 

water intakes that are exclusively 

dedicated to different generating units 

to determine capacity utilization and 

applicable performance standards 

separately for each intake for the same 

reasons. 

As in the Phase I rule, EPA is setting 

performance standards for minimizing 

adverse environmental impact based on 

a relatively easy to measure and certain 

metric—reduction of impingement 

mortality and entrainment. Although 

adverse environmental impact 

associated with cooling water intake 

structures can extend beyond 

impingement and entrainment, EPA has 

chosen this approach because 

impingement and entrainment are 

primary, harmful environmental effects 

that can be reduced through the use of 

specific technologies. In addition, where 

other impacts at the population, 

community, and ecosystem levels exist, 

these will also be reduced by reducing 

impingement and mortality. Using 

impingement mortality and entrainment 

as a metric provides certainty about 

performance standards and streamlines, 

and thus speeds, the issuance of 

permits. 

EPA is expressing the performance 

standard in the form of ranges rather 

than a single performance benchmark 

because of the uncertainty inherent in 

predicting the efficacy of any one of 

these technologies, or a combination of 

these technologies, across the spectrum 

of facilities subject to today’s rule. The 

lower end of the range is being 

established as the percent reduction that 

EPA, based on the available efficacy 

data, expects all facilities could 

eventually achieve if they were to 

implement and optimize available 

design and construction technologies 

and operational measures on which the 

performance standards are based. (See 

Chapter 4, ‘‘Efficacy of Cooling Water 

Intake Structure Technologies,’’ of the 

Phase II Existing Facility Technical 

Development Document, EPA–821–R– 

04–007, February 2004. Also, see EPA’s 

316(b) technology efficacy database, 

DCN 6–5000.) The lower end of the 

range also reflects, in part, higher 

mortality rates at sites where there may 

be more fragile species that may not 

have a high survival rate after coming in 

contact with fish protection 

technologies at the cooling water intake 

structure (e.g., fine mesh screens). The 

higher end of the range is a percent 

reduction that available data show many 

facilities can and have achieved with 

the available technologies upon which 

the performance standards are based. 

In specifying a range, EPA anticipates 

that facilities will select the most costeffective technologies or operational 

measures to achieve the performance 

level (within the stated range) based on 

conditions found at their site, and that 

Directors will review the facility’s 

application to ensure that appropriate 

alternatives were considered. Proper 

selection, operation, and maintenance of 

these technologies would serve to 

increase potential efficiencies of the 

technologies. EPA also expects that 

some facilities may be able to meet these 

performance requirements by selecting 

and implementing a suite (i.e., more 

than one) of technologies and 

operational measures and/or, as 

discussed in this section, by 

undertaking restoration measures. 

Several additional factors support 

EPA’s expectation that the impingement 

mortality and entrainment reduction 

reflected in the performance standards 

can eventually be achieved by all 

facilities using the design and 

construction technologies and measures 

on which the standards were based. 

First, a significant portion of the 

available performance data reviewed is 

from the 1970s and 1980s (when section 

316(b) was initially implemented) and 

does not reflect recent developments, 

innovations (e.g., aquatic filter barrier 

systems, sound barriers), or experience 

using these technologies. These data, 

developed during early implementation 

of the CWA, do not fully reflect today’s 

improved understanding of both how 

the various control technologies work 

and the various factors that reflect what 

constitutes and how to measure healthy 

aquatic conditions. Second, these 

conventional barrier and return system 

technologies have not been optimized 

on a widespread level to date, as would 

be encouraged by this rule. Available 

information indicates that facilities that 

use these cooling water intake structure 

technologies often achieve better results 

from the technologies through adjusting 

which technologies are applied and how 

they are used. Such optimization, which 

also benefits from the advances in 

understanding noted above, would be 

promoted under this rule as facilities 

work to achieve the performance 

standards. Third, EPA believes that 

some facilities could achieve further 

reductions (estimated at 15–30 percent) 

in impingement mortality and 

entrainment by providing for seasonal 

flow restrictions, variable speed pumps, 

systems conversions to closed-cycle, 

recirculating systems, and other 

operational measures and innovative 

flow reduction alternatives. Such 

operational measures could be used to 

supplement design and construction 

technologies where necessary to meet 

the performance standards. Facilities 

also could benefit from combining 

inexpensive technologies as a ‘‘suite.’’ 

For additional discussion, see chapter 4 

in the Phase II Existing Facility 

Technical Development Document. 

The calculation baseline used to 

determine compliance with 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41601 

performance standards is defined in 

§ 125.93 as an estimate of impingement 

mortality and entrainment that would 

occur at a site assuming (1) the cooling 

water system had been designed as a 

once-through system; (2) the opening of 

the cooling water intake structure is 

located at, and the face of the standard 

3⁄8-inch mesh traveling screen is 

oriented parallel to, the shoreline near 

the surface of the source waterbody; and 

(3) the baseline practices and 

procedures are those that the facility 

would maintain in the absence of any 

operational controls, including flow or 

velocity reductions, implemented in 

whole or in part for the purposes of 

reducing impingement mortality and 

entrainment. In addition, the facility 

may choose to use the current level of 

impingement mortality and entrainment 

as the calculation baseline. EPA’s 

definition also clarifies the range of 

available information sources for the 

baseline. The calculation baseline may 

be estimated using: historical 

impingement mortality and entrainment 

data from the facility or from another 

facility with comparable design, 

operational, and environmental 

conditions; current biological data 

collected in the waterbody in the 

vicinity of the facility’s cooling water 

intake structure; or current 

impingement mortality and entrainment 

data collected at the facility. Further, a 

facility may request that the calculation 

baseline be modified to be based on a 

location of the opening of the cooling 

water intake structure at a depth other 

than at or near the surface if it can 

demonstrate to the Director that the 

other depth would correspond to a 

higher baseline level of impingement 

mortality and/or entrainment. EPA 

decided to use this definition because it 

represents the most common default 

conditions the Agency could identify to 

give facilities credit for design and 

construction technologies, operational 

measures, and/or restoration measures 

that they have already implemented to 

minimize adverse environmental 

impact, while providing a clear and 

relatively simple definition. Based on 

comments received on the Phase II 

NODA, this calculation baseline 

definition includes additional criteria 

that EPA has added to provide clarity to 

the analysis. (Proposed changes to the 

calculation baseline were discussed in 

the Phase II NODA, see 68 FR 13580). 

In many cases, existing technologies at 

the site show some reduction in 

impingement and entrainment when 

compared to this baseline. In such cases, 

impingement mortality and entrainment 

reductions (relative to the calculated 

baseline) achieved by these existing 

technologies should be counted toward 

compliance with the performance 

standards. In addition, operational 

measures such as operation of traveling 

screens, employment of more efficient 

return systems, and even locational 

choices should be credited for any 

corresponding reduction in 

impingement mortality and 

entrainment. See section IX of this 

preamble for a discussion of how the 

calculation baseline is used to compare 

facility performance with the rule’s 

performance standards. 

C. What Is the Basis for the Five 

Compliance Alternatives That EPA 

Selected for Establishing Best 

Technology Available? 

1. Meeting Performance Standards 

Through Reducing Intake Flow 

Commensurate With a Closed Cycle 

Recirculating System or Reduced Design 

Intake Velocity 

Under § 125.94(a)(1)(i), any facility 

that reduces its flow to a level 

commensurate with a closed-cycle, 

recirculating cooling system meets the 

performance standards in today’s rule 

because such a reduction in flow is 

deemed to satisfy any applicable 

impingement mortality and entrainment 

performance standards for all 

waterbodies. Facilities that select this 

compliance alternative either through 

the use of closed-cycle recirculating 

system technology at the plant, or by 

retrofitting their facility, will not be 

required to further demonstrate that 

they meet the applicable performance 

standards. Similarly, under 

125.94(a)(1)(ii), any facility that reduces 

its design intake velocity to 0.5 ft/s or 

less is deemed to have met the 

performance standards for impingement 

mortality and is not required to 

demonstrate further that it meets the 

performance standards for impingement 

mortality. 

Available data described in Chapter 3 

of the Phase II Existing Facility 

Technical Development Document 

suggest that closed-cycle, recirculating 

cooling systems (e.g., cooling towers or 

ponds) can reduce mortality from 

impingement by up to 98 percent and 

entrainment by up to 98 percent when 

compared with conventional oncethrough systems.44 Although closed44 Reducing the cooling water intake structure’s 

capacity is one of the most effective means of 

reducing entrainment (and impingement). For the 

traditional steam electric utility industry, facilities 

located in freshwater areas that have closed-cycle 

recirculating cooling water systems can, depending 

on the quality of the make-up water, reduce water 

use by 96 to 98 percent from the amount they 

would use if they had once-through cooling water 

cycle, recirculating cooling is not one of 

the technologies on which the 

performance standards are based, use of 

a closed-cycle, recirculating cooling 

system would always achieve the 

performance standards and therefore, 

facilities that reduce their flow 

commensurate with closed-cycle, 

recirculating cooling systems are 

deemed to have met performance 

standards. The rule, at § 124.94(a)(1)(i), 

thus establishes a compliance 

alternative based on the use of a closedcycle, recirculating cooling system. 

While EPA based the requirements of 

the new facility rule on the performance 

standards of closed-cycle recirculating 

systems, EPA has determined that this 

technology is not economically 

practicable for many existing Phase II 

facilities. EPA is nonetheless aware that 

some existing facilities have installed 

this highly effective technology and has 

thus provided a streamlined alternative 

for such facilities. 

Additionally, EPA established a 

compliance alternative that allows 

facilities to reduce intake velocity to 

meet the impingement mortality 

performance standards. As EPA 

discussed in the proposed rule at 67 FR 

17151 and Phase I final rule at 66 FR 

65274, intake velocity is one of the key 

factors that can affect the impingement 

of fish and other aquatic biota, since in 

the immediate area of the intake it 

exerts a direct physical force against 

which fish and other organisms must act 

to avoid impingement and entrainment. 

As discussed in that notice, EPA 

compiled data from three swim speed 

studies (University of Washington 

study, Turnpenny, and EPRI) and these 

data indicated that a 0.5 ft/s velocity 

would protect at least 96 percent of the 

tested fish. As further discussed, EPA 

also identified federal documents 

(Boreman, DCN 1–5003–PR; Bell (1990); 

and National Marine Fisheries Service 

(NMFS), (1997)), an early swim speed 

and endurance study performed by 

Sonnichsen et al. (1973), and fish screen 

velocity criteria that are consistent with 

this approach. 

systems. Steam electric generating facilities that 

have closed-cycle, recirculating cooling systems 

using salt water can reduce water usage by 70 to 

96 percent when make-up and blowdown flows are 

minimized. The lower range of water usage would 

be expected where State water quality standards 

limit chloride to a maximum increase of 10 percent 

over background and therefore require a 1.1 cycle 

of concentration. The higher range should be 

attainable where cycles of concentration up to 2.0 

are used for the design. 
41602 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

2. Meeting Performance Standards 

Through the Use of Design and 

Construction Technologies, Operational 

Measures, and/or Restoration Measures 

Under the second and third 

compliance alternatives (§ 125.94(a)(2) 

and (3)), a facility may either 

demonstrate to the Director that the 

facility’s existing design and 

construction technologies, operational 

measures, and/or restoration measures 

already meet the minimum performance 

standards specified under § 125.94(b) 

and (c), or that it has selected design 

and construction technologies, 

operational measures, and/or restoration 

measures or some combination thereof 

that will meet these performance 

standards. 

Available data indicate that, when 

considered as a suite of technologies, 

barrier and fish handling technologies 

are available on a national basis for use 

by Phase II existing facilities. These 

technologies exist and are in use at 

various Phase II facilities and, thus, EPA 

considers them collectively 

technologically achievable. In addition, 

50 percent of the potentially regulated 

facilities that do not already have 

closed-cycle cooling systems have some 

other technology in place that reduces 

impingement or entrainment. In turn, a 

large subset of these facilities (33 

percent) also have fish handling or 

return systems that reduce the mortality 

of impinged organisms. The fact that 

these technologies are collectively 

available means that one or more 

technologies within the suite is 

available to each Phase II facility. 

EPA finds that the design and 

construction technologies necessary to 

meet the requirements are commercially 

available and economically practicable 

for existing facilities, because facilities 

can and have installed many of these 

technologies years after a facility began 

operation. Typically, additional design 

and construction technologies such as 

fine mesh screens, wedgewire screens, 

fish handling and return systems, and 

aquatic filter fabric barrier systems can 

be installed during a scheduled outage 

(operational shutdown). Referenced 

below are examples of facilities that 

installed these technologies after they 

initially started operating. 

Lovett Generating Station. A 495 MW 

facility (gas-fired steam), Lovett is 

located in Tomkins Cove, New York, 

along the Hudson River. The facility 

first began operations in 1949 and has 

three generating units with oncethrough cooling systems. In 1994, Lovett 

began the testing of an aquatic filter 

barrier system to reduce entrainment, 

with a permanent system being installed 

the following year. Improvements and 

additions were made to the system in 

1997, 1998, and 1999, with some 

adjustments being accepted as 

improvements of this vendor’s 

technology for all subsequent 

installations at other locations. 

Big Bend Power Station. Situated on 

Tampa Bay, Big Bend is a 1998 MW 

(coal-fired steam) facility with four 

generating units. The facility first began 

operations in 1970 and added 

generating units in 1973, 1976, and 

1985. Big Bend supplies cooling water 

to its once-through cooling water 

systems via two intake structures. When 

the facility added Unit 4 in 1985, 

regulators required the facility to install 

additional intake technologies. A fish 

handling and return system, as well as 

a fine-mesh traveling screen (used only 

during months with potentially high 

entrainment rates), were installed on the 

intake structure serving both the new 

Unit 4 and the existing Unit 3. 

Salem Generating Station. A 2381 

MW facility (nuclear), Salem is located 

on the Delaware River in Lower 

Alloways Creek Township, New Jersey. 

The facility has two generating units, 

both of which use once-through cooling 

and began operations in 1977. In 1995, 

the facility installed modified Ristroph 

screens and a low-pressure spray wash 

with a fish return system. The facility 

also redesigned the fish return troughs 

to reduce fish trauma. 

Chalk Point Generating Station. 

Located on the Patuxent River in Prince 

George’s County, Maryland, Chalk Point 

has a capacity of 2647 MW (oil-fired 

steam). The facility has four generating 

units and uses a combination of oncethrough and closed-cycle, recirculating 

cooling systems (two once-through 

systems serving two generating units 

and one recirculating system with a 

tower serving the other two generating 

units). In 1983, the facility installed a 

barrier net, followed by a second net in 

1985, giving the facility a coarse mesh 

(1.25′′) outer net and a fine mesh (.75′′) 

inner net. The barrier nets are anchored 

to a series of pilings at the mouth of the 

intake canal that supplies the cooling 

water to the facility and serve to reduce 

both entrainment and the volume of 

trash taken in at the facility. 

3. Meeting Performance Standards 

Through Use of an Approved Design 

and Construction Technology 

Under the fourth compliance 

alternative, a facility can demonstrate 

that it meets specified conditions and 

that it has installed and properly 

operates and maintains a pre-approved 

technology. EPA is approving one 

technology at this time: submerged 

cylindrical wedgewire screen 

technology to treat the total cooling 

water intake flow. There are five 

conditions that must be met in order to 

use this technology to comply with the 

rule: (1) The cooling water intake 

structure is located in a freshwater river 

or stream; (2) the cooling water intake 

structure is situated such that sufficient 

ambient counter currents exist to 

promote cleaning of the screen face; (3) 

the through screen design intake 

velocity is 0.5 ft/s or less; (4) the slot 

size is appropriate for the size of eggs, 

larvae, and juveniles of any fish and 

shellfish to be protected at the site; and 

(5) the entire main condenser cooling 

water flow is directed through the 

technology (small flows totaling less 

than two MGD for auxiliary plant 

cooling uses are excluded). Directors are 

explicitly authorized in § 125.99 to preapprove other technologies for use at 

facilities with other specified 

characteristics within their respective 

jurisdiction after providing the public 

with a notice and an opportunity to 

comment on the request for approval of 

the technology. The Director’s authority 

to pre-approve other technologies is not 

limited to technologies for use by 

facilities located on freshwater rivers 

and streams. 

EPA has adopted this compliance 

alternative in response to comments that 

suggested that EPA provide an 

additional, more streamlined 

compliance option under which a 

facility could implement certain 

specified technologies that are deemed 

highly protective in exchange for 

reducing the scope of the 

Comprehensive Demonstration Study. 

(See 68 FR 13522, 13539; March 19, 

2003). EPA evaluated the effectiveness 

of specific technologies using the 

impingement mortality and entrainment 

reduction performance standards as 

assessment criteria. The technology 

selected for the approved technology 

option has a demonstrated ability to 

reduce impingement mortality by 80 to 

95 percent for fish and shellfish and, if 

required, reduce entrainment by 60 to 

90 percent for any stages of fish and 

shellfish at facilities that meet the 

conditions specified in section 

125.99(a). Thus, the technology has a 

demonstrated ability to meet the most 

stringent performance standards that 

would apply to any facility situated on 

a freshwater river or stream. (See DCN 

1–3075, 1–5069, 1–5070, 3–0002, and 4– 

4002B. Also see, DCN 6–5000 and 

Chapter 3 of the Technical Development 

Document.) Because cylindrical 

wedgewire screens are believed to be 

effective when deployed under the 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41603 

specified conditions and properly 

maintained, facilities that select this 

compliance option are provided 

substantially streamlined requirements 

for completing the Comprehensive 

Demonstration Study. However, 

facilities selecting this option are still 

required to prepare a Technology 

Installation and Operation Plan to 

monitor the effectiveness of the 

technology at their site in meeting the 

performance standards. 

4. Site-Specific Determination of Best 

Technology Available To Minimize 

Adverse Environmental Impact 

A facility may comply with the rule 

by seeking a site-specific demonstration 

of the best technology available to 

minimize adverse environmental impact 

by demonstrating, to the Director’s 

satisfaction, that its cost of complying 

with the applicable performance 

standards would be significantly greater 

than the costs considered by EPA for a 

like facility when establishing such 

performance standards, or that its costs 

would be significantly greater than the 

benefits of complying with such 

performance standards at the facility. 

(See sections 125.94(a)(5)(i) and (ii)). If 

a facility satisfies one of the two cost 

tests in § 125.94(a)(5), then the Director 

must establish site-specific alternative 

requirements based on design and 

construction technologies, operational 

measures, and/or restoration measures 

that achieve an efficacy that is, in the 

judgment of the Director, as close as 

practicable to the applicable 

performance standards without 

resulting in costs that are significantly 

greater than either the costs considered 

by the Administrator in establishing the 

applicable performance standards, or 

the benefits at the facility. 

In establishing the performance 

standards in 125.94(b) and the 

compliance alternatives in sections 

125.94(a)(1)–(4), EPA considered several 

factors, including efficacy, availability, 

ease of implementation, indirect effects, 

the costs that EPA expects all existing 

facilities to incur (national costs) and 

the benefits if all existing facilities meet 

the performance standards (national 

benefits). This provision for alternative 

requirements is included in the rule to 

give facilities flexibility to demonstrate 

that the best technology available to 

minimize adverse environmental impact 

at their particular sites may be less 

stringent than would otherwise be 

achieved if the facility selected one of 

the compliance alternatives in sections 

125.94(a)(1)–(4). (For a discussion of 

EPA’s legal authority to authorize 

compliance with alternative 

requirements based on this cost-cost 

comparison, see Section VIII. I.). 

a. Basis of the Cost-Cost Test 

For a number of related reasons, EPA 

chose to use a comparison of a facility’s 

actual costs to the costs EPA estimated 

that facility would incur to meet the 

national performance standards (a ‘‘costcost test’’) as a basis for obtaining a sitespecific determination of best 

technology available. EPA’s record for 

this rule shows that, for the category of 

existing facilities as a whole, today’s 

rule is technically achievable and 

economically practicable. Although EPA 

collected more information for this 

rulemaking than is typical for an 

effluent limitation guideline 

rulemaking, detailed information on 

some factors important to the 

effectiveness and costs of the 

technologies, such as debris loading and 

the presence of navigational channels 

within the waterbody at which cooling 

water intakes are sited, was not 

requested. Moreover, the information 

EPA used to develop its costs was in 

some cases limited by the fact that, 

while EPA sent surveys to all facilities 

covered under today’s rule, only 42% 

were sent detailed questionnaires. The 

remaining 58% only received a short 

technical questionnaire which requested 

minimal characterization information. 

Also, EPA may not have elicited 

information regarding characteristics of 

a particular facility that, if known 

would have either significantly changed 

EPA’s national cost estimates or 

demonstrated that none of the 

technologies on which the categorical 

requirements are based are 

economically achievable by the facility. 

Similarly, existing facilities have less 

flexibility than new facilities in 

selecting the location of their intakes 

and technologies for minimizing 

adverse environmental impact, and 

therefore it may be difficult for some 

facilities to avoid costs much higher 

than those EPA considered when 

establishing the performance standards. 

The cost-cost site-specific alternative 

ensures that the overall rule remains 

economically practicable for facilities 

subject to today’s rule. In short, for 

certain facilities EPA may not have 

anticipated some site-specific costs or 

the costs for retrofit may exceed those 

EPA considered. Despite EPA’s best 

effort, such costs are difficult to estimate 

in a national rule. Because of the wide 

range of available technologies 

considered and a number of site-specific 

factors that may significantly affect the 

cost and practicability of installing 

particular technologies at particular 

sites, the site-specific uncertainty in the 

cost estimates is higher than for an 

effluent limitations guidelines 

rulemaking. Thus, EPA may not have 

anticipated all site-specific costs that a 

facility could incur. In addition, existing 

facilities have less flexibility than new 

facilities in selecting the location of 

their intakes and technologies for 

minimizing adverse environmental 

impact and, therefore, it may be difficult 

for some facilities to avoid costs much 

higher than those EPA considered when 

establishing the performance standards 

in the rule. For all of these reasons, EPA 

believes that the cost-cost site-specific 

compliance alternative is necessary to 

ensure that the rule is economically 

practicable for existing Phase II 

facilities. In order to ensure that this 

alternative provides only the minimum 

relaxation of performance standards that 

is needed to make the rule economically 

practicable, § 125.94(a)(5)(i) requires 

that the site-specific requirements 

achieve an efficacy that is as close as 

practicable to the applicable 

performance standards without 

resulting in costs that are significantly 

greater than those considered by the 

Administrator for a like facility when 

establishing the performance standards. 

b. Basis of the Cost-Benefit Test 

EPA decided to use a comparison of 

a facility’s costs to the benefits of 

meeting the performance standards at 

the facility (a ‘‘cost-benefit test’’) as 

another basis for obtaining a sitespecific determination of BTA to 

minimize adverse environmental 

impact. Section 316(b) authorizes 

consideration of the environmental 

benefit to be gained by requiring that the 

location, design, construction, and 

capacity of cooling water intake 

structures reflect the best economically 

practicable technology available for the 

purpose of minimizing adverse 

environmental impact. Accordingly, in 

determining that the technologies on 

which EPA based the compliance 

alternatives and performance standards 

are the best technologies available for 

existing facilities to minimize adverse 

environmental impact, EPA considered 

the national cost of those technologies 

in comparison to the national benefits— 

i.e., the reduction in impingement and 

entrainment that EPA estimated would 

occur nationally if all existing facilities 

selected one of the compliance options 

in sections 125.94(a)(1)–(4). While EPA 

believes that there is considerable value 

in promulgating national performance 

standards under section 316(b) based on 

what EPA determines, on a national 

basis, to be the best technology available 

to minimize adverse environmental 

impacts, EPA also recognizes that, at 
41604 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

times, determining what is necessary to 

minimize adverse environmental 

impacts can necessitate a site-specific 

inquiry. EPA’s comparison of national 

costs to national benefits may not be 

applicable to a specific site due to 

variations in (1) the performance of 

intake technologies and (2) 

characteristics of the waterbody in 

which the intake(s) are sited, including 

the resident aquatic biota. For example, 

there may be some facilities where the 

absolute numbers of fish and shellfish 

impinged and entrained is so minimal 

that the cost to achieve the required 

percentage reductions would be 

significantly greater than the benefits of 

achieving the required reductions at that 

particular site. More specifically, 

because of the location of the intake, the 

characteristics of a particular 

waterbody, or the behavioral patterns of 

the fish or shellfish in that particular 

waterbody, there may be little or no 

impingement mortality or entrainment 

occurring at the site (see Neal 

Generating Complex facility example 

provided in section IV of this preamble). 

For such a facility, the cost of reducing 

an already small amount of 

impingement mortality and entrainment 

by 80 to 95 percent and 60 to 90 

percent, respectively, may be 

significantly greater than the benefits. In 

short, it may not be cost-effective and, 

therefore may be economically 

impracticable for a facility to achieve 

percentage reductions when attempting 

to save a small number of fish or 

shellfish. Thus, in a waterbody that is 

already degraded, very few aquatic 

organisms may be subject to 

impingement or entrainment, and the 

costs of retrofitting an existing cooling 

water intake structure may be 

significantly greater than the benefits of 

doing so. By requiring best technology 

available to minimize adverse 

environmental impact, section 316(b) 

invites a consideration of both 

technology and of environmental 

conditions, including the potential for 

adverse impacts, in the receiving 

waterbody. EPA believes it is a 

reasonable interpretation of the statute 

to allow the Director to consider the 

results of meeting the performance 

standards in terms of reducing 

environmental impacts (i.e., the 

benefits) in cases where the costs of 

installing the technology are 

significantly greater than the reduction 

in environmental impacts would 

warrant. As with the cost-cost sitespecific provision, EPA also wants to 

ensure that any relaxation of the 

performance standards be the minimum 

necessary to ensure that the costs are 

not significantly greater than the 

benefits. Section 125.94(a)(5)(i) thus 

provides that alternative site-specific 

requirements must achieve an efficacy 

that is as close as practicable to the 

applicable performance standards 

without resulting in costs that are 

significantly greater than the benefits of 

meeting the performance standards at 

the facility. 

D. How Has EPA Assessed Economic 

Practicability? 

The legislative history of section 

316(b) indicates that the term ‘‘best 

technology available’’ should be 

interpreted as ‘‘best technology 

available commercially at an 

economically practicable cost.’’ 45 This 

position reflects congressional concern 

that the application of best technology 

available should not impose an 

impracticable and unbearable economic 

burden. Thus, EPA has conducted 

extensive analyses of the economic 

impacts of this final rule, using an 

integrated energy market model (the 

IPM 45). For a complete discussion of 

this analysis, please refer to section 

XI.B.1 of this preamble or Chapter B3 of 

the Economic and Benefits Analysis 

(EBA) in support of this final rule (DCN 

6–0002). 

EPA believes that the requirements of 

this rule reflect the best technology 

available at an economically practicable 

cost. EPA examined the effects of the 

rule’s compliance costs on capacity, 

generation, variable production costs, 

prices, net income, and other measures, 

both at the market and facility levels. In 

addition, the other economic analyses 

conducted by EPA showed that the costs 

for this rule are economically 

practicable. 

However, EPA believes that a 

consideration of the relationship of 

costs to environmental benefits is an 

important component of economic 

practicability. As discussed in section 

VIII.C of the proposed Phase I rule (65 

FR 49094) EPA has long recognized that 

there should be some reasonable 

relationship between the cost of cooling 

water intake structure control 

technology and the environmental 

benefits associated with its use. As the 

preamble to the 1976 final rule 

implementing section 316(b) stated, 

neither the statute nor the legislative 

history requires a formal or informal 

cost-benefit assessment (41 FR 17387; 

April 26, 1976). 

45 See 118 CONG. REC 33,762 (1972), reprinted in 

1 Legislative History of the Water Pollution Control 

Act Amendments of 1972, at 264 (1973) (Statement 

of Representative Don H. Clausen). 

E. What Were the Major Options 

Considered for the Final Rule and Why 

Did EPA Reject Them? 

EPA considered a number of options 

for determining the best technology 

available to minimize adverse 

environmental impact at Phase II 

existing facilities and assessed these 

options based on overall efficacy, 

availability, economic practicability, 

including economic impact and the 

relationship of costs with benefits, and 

non-water quality environmental 

impacts, including energy impacts. 

Under the options EPA considered, 

facilities would be allowed to 

implement restoration measures to meet 

the performance standards. Similarly, 

any options considered also would 

allow facilities to request alternative, 

less stringent, requirements if the 

Director had determined that data 

specific to the facility indicated that 

compliance with the relevant 

requirement would result in compliance 

costs significantly greater than those 

EPA considered in establishing the 

applicable requirement, or compliance 

costs significantly greater than the 

benefits of complying with the 

applicable performance standards. The 

alternative requirements would be no 

less stringent than justified by the 

significantly greater cost or the 

significant adverse impacts on local air 

quality or local energy markets. EPA 

also considered several site-specific 

approaches to establishing best 

technology available. These include the 

site-specific sample rule discussed at 67 

FR 17159, an alternative based on EPA’s 

1977 Draft Guidance, and alternatives 

suggested by the Utility Water Act 

Group (UWAG) and Public Service 

Electric and Gas Company (PSEG), 

respectively (see 67 FR 17162). EPA’s 

reasons for not adopting these site 

specific alternatives are discussed in 

section VII.E.5 of this preamble. The 

five major technology options EPA 

considered but did not select for the 

final rule are discussed in greater detail 

in the next section. Finally, the costs 

and benefits presented below are those 

developed at proposal because these 

estimates are most useful for purposes 

of comparison. Subsequent analyses, 

such as those presented in the NODA, 

have resulted in higher cost estimates in 

general, but did not alter the relative 

ranking of these options as EPA made 

determinations regarding the final rule. 

Rather, these analyses indicated that the 

costs for options that would have 

required more extensive retrofitting 

efforts than the final rule are even 

higher relative to the costs of the final 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41605 

rule than they were estimated to be at 

proposal. 

1. Intake Capacity Commensurate With 

Closed-Cycle, Recirculating Cooling 

System for All Facilities 

EPA considered a regulatory option 

that would have required Phase II 

existing facilities with a design intake 

flow 50 MGD or more to reduce the total 

design intake flow to a level, at a 

minimum, commensurate with that 

which can be attained by a closed-cycle 

recirculating cooling system using 

minimized make-up and blowdown 

flows. In addition, facilities in specified 

circumstances (e.g., located where 

additional protection is needed due to 

concerns regarding threatened, 

endangered, or protected species or 

habitat; or regarding migratory, sport or 

commercial species of concern) would 

have had to select and implement 

additional design and construction 

technologies to minimize impingement 

mortality and entrainment. This option 

would not have distinguished between 

facilities on the basis of the waterbody 

type from which they withdraw cooling 

water. Rather, it would have required 

that the same stringent controls be the 

nationally applicable minimum for all 

waterbody types. This is the basic 

regulatory approach EPA adopted for 

new facilities at 40 CFR 125.80. 

EPA did not select a regulatory 

scheme based on the use of closedcycle, recirculating cooling systems at 

existing facilities based on its generally 

high costs (due to conversions), the fact 

that other technologies approach the 

performance of this option, concerns for 

energy impacts due to retrofitting 

existing facilities, and other 

considerations. Although closed-cycle, 

recirculating cooling water systems 

serve as the basis for requirements 

applied to Phase I new facilities, for 

Phase II existing facilities, a national 

requirement to retrofit existing systems 

is not the most cost-effective approach 

and at many existing facilities, retrofits 

may be impossible or not economically 

practicable. EPA estimates that the total 

capital costs for individual high-flow 

plants (i.e., greater than 2 billion gallons 

per day) to convert to wet towers 

generally ranged from $130 to $200 

million, with annual operating costs in 

the range of $4 to $20 million (see TDD; 

DCN 6–0004). For purposes of general 

comparison, EPA estimated that capital 

and installation costs for cooling towers 

under the Phase I rule would range from 

approximately $170,000 to $12.6 

million per plant (annualized), 

depending on flow. At proposal, EPA 

estimated that the total social cost of 

compliance for this option for Phase II 

existing facilities would be 

approximately $3.5 billion per year. 

It is significant to note, however, that 

EPA’s estimates did not fully 

incorporate costs associated with 

acquiring land needed for cooling 

towers and, therefore, these estimates 

may not fully reflect the costs of the 

option. For example, based on a survey 

conducted by one industry commenter, 

EPA learned that 31 out of 56 plants 

surveyed said that they would need to 

acquire additional property to 

accommodate cooling towers, if 

required by today’s rule. EPA recognizes 

that this could be a significant cost. EPA 

also recognizes that there may be 

impediments, irrespective of costs, to 

acquiring land for cooling towers. Land 

upon which to construct cooling towers 

may be difficult or impossible to obtain, 

especially in urban areas; some facilities 

might even turn to displacement of 

wetlands as a solution. The Agency did 

not include these potential costs in its 

analysis for the NODA or proposal. In 

contrast to new facilities, which can 

take into account the Phase I 

requirements when choosing where to 

situate their structures (including 

cooling towers), existing facilities have 

far less flexibility and incur far greater 

costs. EPA believes that this is a special 

problem for existing facilities that is 

relevant to determining whether, as a 

national categorical matter, closed-cycle 

cooling is the best technology available 

for existing facilities for minimizing 

adverse environmental impacts 

associated with cooling water intake 

structures. EPA received retrofit cost 

estimates from a number of commenters 

that indicate that such costs could be at 

least twice those projected by EPA. 

Another issue concerns the energy 

impacts of cooling towers. EPA 

examined the information it received 

after publication of the proposed rule 

and NODA, and agrees that the energy 

penalty associated with cooling towers, 

together with other factors, indicates 

that this technology is not the best 

technology available for existing 

facilities for minimizing adverse 

environmental impacts associated with 

cooling water intake structures. In 

reaching this conclusion, EPA relied on 

energy penalty information provided by 

the U.S. Department of Energy. EPA 

worked closely with the U.S. 

Department of Energy in preparing 

today’s rule because of their expertise in 

power plant operations and engineering. 

The U.S. Department of Energy pointed 

out to EPA that existing fossil-fuel 

facilities converting from once-through 

cooling water systems to wet-cooling 

towers would produce 2.4 percent to 4.0 

percent less electricity even while 

burning the same amount of coal. For at 

least one nuclear power plant, which 

provides 78% of the electricity 

consumed by the State of Vermont, the 

energy penalty associated with 

converting to cooling towers was 

estimated to be 5.3 percent. Expressed 

differently, DOE estimated that 

nationally, on average 20 additional 

400-MW plants might have to be built 

to replace the generating capacity lost 

by replacing once-through cooling 

systems with wet cooling towers if such 

towers were required by all Phase II 

facilities. 

This energy penalty leads to other 

negative consequences. Because this 

deficit is predicted to occur during the 

summer months (when energy demand 

is highest), the net effect would be more 

consumption of fossil fuel, which in 

turn increases the emission of sulfur 

dioxide, NOX, particulate matter, 

mercury and carbon dioxide. Increasing 

fuel consumption at existing coal power 

plants yields the largest increase in air 

emissions because existing systems are 

less efficient at producing power (and 

therefore burn more coal) and because 

they generally have less air pollution 

control equipment in place. EPA 

believes that it is reasonable to consider 

these non-water quality environmental 

impacts and the additional costs 

associated with controlling these 

increased emissions in making today’s 

decision. EPA further believes that it is 

authorized to do so because of the links 

between § 316(b) and sections 301 and 

306, which require EPA to consider both 

the energy impacts and the air pollution 

impacts of technologies when 

identifying technologies in the effluent 

guidelines context. See CWA section 

304(b)(2)(B) (cross-referenced in § 301); 

CWA section 306(b)(1)(B) (new source 

performance standards). 

Some commenters also assert that 

EPA underestimated the down time that 

the facility would experience as it 

converts to cooling towers. This, again, 

is not an impact that would be 

experienced by new facilities. EPA 

agrees that such down time can be 

significant. Indeed, one of the four 

retrofit case studies EPA developed 

indicated a down time of 10 months, 

and EPA believes it is reasonable to 

infer that many other facilities would 

experience the same loss. 

EPA also agrees with the commenters 

who assert that the empirical data base 

of four retrofit cases to which EPA 

compared cooling tower retrofit costs 

and engineering characteristics is not 

representative of the broader population 

of facilities and could be too narrow a 

set from which to develop national costs 

that would be applicable to a wide range 
41606 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

of facilities. Of the four retrofits EPA 

studied, two were in a single state 

(South Carolina), none were located 

along a coast, and only one generated 

more than 500 MW of electricity. EPA 

also recognizes that all of these 

conversions were performed before 

1992. While it is true that the vast 

majority of the new, greenfield utility 

and non-utility combined cycle plants 

built in the past 20 years have wet 

cooling towers, EPA believes that it is 

significant that so few existing facilities 

retrofitted to the technology during the 

same period. The rarity of this 

technology as a retrofit further indicates 

that it is not economically practicable 

for the vast majority of existing 

facilities. 

EPA also considered several 

additional points made by commenters 

in rejecting this option. Some 

commenters asserted that certain 

facilities with closed-cycle, recirculating 

cooling systems often need to address 

the impacts of cooling tower plumes, 

and subsequent fog and icing in 

metropolitan areas, and noise 

abatement. Commenters also asserted 

that the costs of retrofitting and 

operating such systems at facilities 

which do not now have them is 

disproportionate to the potential 

benefits derived, particularly given the 

similarity in the level of protection 

provided under this option (all facilities 

required to reduce flow commensurate 

with a closed-cycle, recirculating 

system) and the final rule. Finally, they 

stated that the need for flexibility in a 

rule pertaining to existing facilities is 

critical to allow facility owners a range 

of options to meet the fish protection 

requirements. EPA does not agree that 

in all cases the costs of retrofitting a 

closed-cycle cooling water system is 

disproportionate to the benefits derived. 

Nevertheless, EPA recognizes that these 

concerns have merit for many facilities 

and that the validity and extent of such 

concerns often must be assessed on a 

case-by-case basis. 

Each of these factors has a cost and an 

economic impact that EPA believes is 

appropriate to consider when evaluating 

whether cooling towers are the best 

technology available for existing 

facilities for minimizing adverse 

environmental impacts associated with 

cooling water intake structures. The 

capital costs estimated by EPA at 

proposal are already very high; when 

costs reflecting reasonable changes to 

EPA’s assumptions are added to them, 

the total capital cost investment and 

associated economic impact is simply 

too high at this time for EPA to be able 

to justify selecting cooling towers as a 

required technology for all existing 

Phase II facilities. 

EPA further compared the efficacy of 

closed-cycle, recirculating cooling 

systems with that estimated for design 

and construction technologies. 

Although not identical, the ranges of 

impingement and entrainment 

reduction are similar under both 

options, such that the reductions 

estimated for the design and 

construction technologies, particularly 

when optimized, approach those 

estimated for closed-cycle, recirculating 

cooling systems. Therefore, the use of 

design and construction technologies as 

the basis for this rule is supported since 

they can approach closed-cycle, 

recirculating systems at less cost with 

fewer implementation problems. EPA 

considered this similarity in efficacy, 

along with the economic practicability 

and availability of each type of 

technology, in determining that a 

closed-cycle, recirculating cooling 

system is not the required technology 

for all Phase II existing facilities. 

2. Intake Capacity Commensurate With 

Closed-Cycle, Recirculating Cooling 

Systems Based on Waterbody Type 

EPA also considered an alternate 

technology-based option in which 

closed-cycle, recirculating cooling 

systems would have been required for 

all facilities on certain waterbody types. 

Under this option, EPA would have 

grouped waterbodies into the same five 

categories as in today’s rule: (1) 

Freshwater rivers or streams, (2) lakes or 

reservoirs, (3) Great Lakes, (4) tidal 

rivers or estuaries; and (5) oceans. 

Because oceans, estuaries and tidal 

rivers contain essential habitat and 

nursery areas for the vast majority of 

commercial and recreational important 

species of shell and finfish, including 

many species that are subject to 

intensive fishing pressures, these 

waterbody types would have required 

more stringent controls based on the 

performance of closed-cycle, 

recirculating cooling systems. EPA 

discussed the susceptibility of these 

waters in a Notice of Data Availability 

(NODA) for the Phase I rule (66 FR 

28853, May 25, 2001) and invited 

comment on documents that may 

support its judgment that these waters 

are particularly susceptible to adverse 

impacts from cooling water intake 

structures. In addition, the NODA 

presented information regarding the low 

susceptibility of non-tidal freshwater 

rivers and streams to impacts from 

entrainment from cooling water intake 

structures. 

Under this alternative option, 

facilities that operate at less than 15 

percent capacity utilization would, as in 

today’s final rule, only be required to 

have impingement control technology. 

Facilities that have a closed-cycle, 

recirculating cooling system would have 

required additional design and 

construction technologies to increase 

the survival rate of impinged biota or to 

further reduce the amount of entrained 

biota if the intake structure was located 

within an ocean, tidal river, or estuary 

where there are fishery resources of 

concern to permitting authorities or 

fishery managers. 

Facilities with cooling water intake 

structures located in a freshwater 

(including rivers and streams, the Great 

Lakes and other lakes) would have had 

the same requirements as under today’s 

final rule. If a facility for which closedcycle recirculating technology was 

required chose to comply with 

alternative requirements, then the 

facility would have had to demonstrate 

that alternative technologies would 

reduce impingement and entrainment to 

levels comparable to those that would 

be achieved with a closed-loop 

recirculating system (90% reduction). If 

such a facility chose to supplement its 

alternative technologies with restoration 

measures, it would have had to 

demonstrate the same or substantially 

similar level of protection. (For 

additional discussion see the Phase I 

final rule 66 FR 65256, at 65315 

columns 1 and 2.) 

At proposal, EPA estimated that there 

would be 109 46 facilities located on 

oceans, estuaries, or tidal rivers that do 

not have a closed-cycle, recirculating 

cooling system and would need to 

reduce intake flow to a level 

commensurate with that which can be 

attained by a closed-cycle, recirculating 

cooling system or upgrade design and 

construction technology (e.g., screens) 

in order to meet performance standards 

for reducing impingement mortality and 

entrainment. 

Although EPA estimated the costs of 

this option to be less expensive at the 

national level than an option based on 

closed-cycle, recirculating cooling 

systems everywhere, EPA did not select 

this option based on total social costs 

estimates of greater than $1 billion per 

year and its lack of cost-effectiveness, as 

well as on concerns regarding potential 

energy impacts. Facilities located on 

oceans, estuaries, and tidal rivers would 

incur high capital and operating and 

maintenance costs for conversions of 

their cooling water systems. 

Furthermore, since impacted facilities 

would be concentrated in coastal 

regions, EPA is concerned that there is 

46Sample-weighted. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41607 

the potential for short term energy 

impacts and supply disruptions in these 

areas if multiple facilities retrofit 

concurrently or over a relatively short 

time-frame, as would be required by 

these regulations. 

3. Intake Capacity Commensurate With 

Closed-Cycle, Recirculating Cooling 

System Based on Waterbody Type and 

Proportion of Waterbody Flow 

EPA also considered a variation on 

the above approach that would have 

required only facilities withdrawing 

very large amounts of water from an 

estuary, tidal river, or ocean to reduce 

their intake capacity to a level 

commensurate with that which can be 

attained by a closed-cycle, recirculating 

cooling system. For example, for 

facilities with cooling water intake 

structures located in a tidal river or 

estuary, if the intake flow is greater than 

1 percent of the source water tidal 

excursion, then the facility would have 

had to meet standards for reducing 

impingement mortality and entrainment 

based on the performance of wet cooling 

towers. These facilities would instead 

have had the choice of reducing cooling 

water intake flow to a level 

commensurate with wet cooling towers 

or of using alternative technologies to 

meet reduction standards based on the 

performance of wet cooling towers. If a 

facility on a tidal river or estuary had 

intake flow equal to or less than 1 

percent of the source water tidal 

excursion, the facility would have only 

had to meet the same impingement and 

entrainment performance standards as 

in the final Phase II rule. These 

standards were developed based on the 

performance of technologies such as 

fine mesh screens and traveling screens 

with well-designed and operating fish 

return systems. The more stringent, 

closed-cycle, recirculating cooling 

system-based requirements would have 

also applied to a facility that has a 

cooling water intake structure located in 

an ocean with an intake flow greater 

than 500 MGD. 

This option also would impose much 

higher costs on a subset of facilities than 

the final rule. Based on an analysis of 

data collected through the detailed 

industry questionnaire and the short 

technical questionnaire, at proposal, 

EPA estimated there were potentially 

109 Phase II existing facilities located 

on estuaries, tidal rivers, or oceans 

which would incur capital costs under 

this option. Of these 109 facilities, EPA 

estimated that 51 would exceed the 

applicable flow threshold and be 

required to meet performance standards 

for reducing impingement mortality and 

entrainment based on a reduction in 

intake flow to a level commensurate 

with that which can be attained by a 

closed-cycle recirculating system. Of the 

58 47 facilities estimated to fall below 

the applicable flow threshold, 10 

facilities already meet these 

performance standards and would not 

require any additional controls, whereas 

48 48 facilities would require 

entrainment or impingement controls, 

or both. Because this option would only 

require cooling tower-based 

performance standards for facilities 

located on tidal rivers, estuaries or 

oceans where they withdraw saline or 

brackish waters, EPA does not believe 

that this option would raise any 

significant water quantity issues. 

At proposal, EPA estimated the total 

social cost of compliance for the 

waterbody/capacity-based option to be 

approximately $0.97 billion per year. 

EPA did not select this option because 

it was not determined to be the most 

cost-effective approach on a national 

basis. While the national costs of this 

option are slightly lower than those of 

requiring wet cooling towers-based 

performance standard for all facilities 

located on oceans, estuaries and tidal 

rivers, the cost for facilities to meet 

these standards are still substantial. 

Although EPA would provide an 

opportunity to seek alternative 

requirements to address locally 

significant air quality or energy impacts, 

EPA does not believe a framework such 

as this provides sufficient flexibility to 

ensure effective implementation and to 

minimize non-water quality (including 

energy) impacts. In addition, as noted 

above for the other cooling tower based 

options that EPA rejected, facilities can 

achieve almost the same level of 

impingement mortality and entrainment 

reductions using the technologies on 

which this final rule is based as they 

can using cooling towers, but at 

substantially lower cost. 

4. Impingement Mortality and 

Entrainment Controls Everywhere 

At proposal, EPA evaluated an option 

that required impingement mortality 

and entrainment controls for all 

facilities. This option did not allow for 

the development of best technology 

available on a site-specific basis. This 

alternative based requirements on the 

percent of source water withdrawn and, 

like today’s final rule, also restricted 

disruption of the natural thermal 

stratification of lakes or reservoirs. It 

also imposed entrainment performance 

requirements on Phase II existing 

facilities located on freshwater rivers or 

47 Not sample-weighted. 

48 Not sample-weighted. 

streams, and lakes or reservoirs where 

EPA has determined in today’s final rule 

that such controls are not necessary. 

Finally, under this alternative, 

restoration could be used, but only as a 

supplement to the use of design and 

construction technologies or operational 

measures. 

This option established clear 

performance-based requirements that 

were based on the use of available 

technologies to reduce adverse 

environmental impact. Such an 

alternative would be consistent with the 

focus on use of best technology required 

under section 316(b). However, as 

indicated above, this option lacks the 

flexibility of the final rule in applying 

the necessary and appropriate available 

technology and therefore would be less 

effective in addressing the specific 

cooling water intake structure impacts 

posed by Phase II facilities in their 

various environmental settings. 

At proposal, total social cost of 

compliance for this option was 

estimated at approximately $300 million 

per year. EPA did not select this option 

because other options were more costeffective, in part because this option 

requires entrainment controls in 

freshwater rivers, streams, and lakes. 

The benefits of the final rule are almost 

the same as those for this option but a 

lower cost (since lakes and reservoirs, 

and for design intake flows below 5% in 

freshwater rivers and streams are the 

least likely to provide significant 

benefits). 

5. Site-Specific Options as Best 

Technology Available To Minimize 

Adverse Environmental Impact 

In the proposed rule EPA also 

considered several site-specific 

approaches to establishing best 

technology available. These include the 

site-specific sample rule discussed at 67 

FR 17159, an alternative based on EPA’s 

1977 Draft Guidance (67 FR 17161), and 

alternatives suggested by UWAG and 

PSEG, respectively (see 67 FR 17162). 

EPA did not adopt any of these sitespecific regulatory options for several 

reasons. None of these site-specific 

approaches would have established 

national performance standards for best 

technology available to minimize 

adverse environmental impact. EPA 

believes that such national performance 

standards promote the consistent 

application of the best technology 

available to minimize adverse 

environmental impact. In addition, 

based on contact with States (see Phase 

I NODA, 66 FR 28865, Phase II proposal 

67 FR 17152–3) and anecdotal 
41608 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

information 49 EPA believes that each of 

these site-specific options would have 

resulted in higher administrative 

burdens being imposed on applicants 

and permit writers relative to the final 

rule. As EPA has discussed in the 

preamble to the proposal (see 67 FR 

17167), these administrative burdens 

can be associated with the need to 

determine in each case whether adverse 

impacts are occurring, the nature and 

level of any such impacts, and which 

design and construction technologies 

constitute the best technology available 

to minimize adverse environmental 

impacts, including a consideration of 

costs and benefits. Further, all of the 

proposed site-specific options increase 

the likelihood that each significant 

cooling water intake permitting issue 

would become a point of contention 

between the applicant and permit 

writer, which EPA’s experience 

indicates slows the permitting process, 

makes it more resource intensive, and 

makes it more costly. Finally, because 

the final rule provides facilities with the 

option of selecting from five compliance 

alternatives, including a site-specific 

compliance alternative, the final rule 

provides facilities with flexibility 

comparable to that of a site-specific rule. 

The site-specific alternative in the final 

rule provides clear standards for 

eligibility (the cost-cost and cost-benefit 

tests), and clear standards on which to 

base the alternative requirements that 

they achieve an efficacy as close as 

practicable to the national performance 

standards without exceeding the costtest or benefits-test thresholds. EPA 

believes that structuring a site-specific 

compliance alternative in this way will 

significantly reduce the potential areas 

of disagreement between permit writer 

and applicant that are inherent in the 

other site-specific approaches that it 

rejected, while still providing facilities 

with appropriate flexibility. Through 

the multiple compliance alternatives 

specified in this rule, EPA has sought to 

balance the statutory requirements of 

section 316(b) and the need for 

reasonable limits on the administrative 

burden imposed on both applicants and 

permit writers against the need for 

49 For example, a site-specific determination for 

Brayton Point, Rhode Island, has required resources 

for greater than two full time equivalents (FTEs) 

over three years for permitting and support staff, as 

well as approximately $400,000 in contractor costs 

to address technical issues and applicant experts. 

Similarly, development of a permit for Salem has 

required resources for greater than two full time 

equivalents (FTEs) over three years for permitting 

and support staff, as well as approximately 

$340,000 in contractor costs to address technical 

issues and applicant experts. 

existing facilities to have flexibility in 

implementing the requirements. 

6. Flow Reduction Commensurate With 

the Level Achieved by Dry Cooling 

Systems Based on Waterbody Type 

EPA conducted a full analysis for the 

Phase I rule and concluded that dry 

cooling was not an economically 

practicable option for new facilities on 

a national basis. Dry cooling systems 

use either a natural or a mechanical air 

draft to transfer heat from condenser 

tubes to air. In conventional closedcycle recirculating wet cooling towers, 

cooling water that has been used to cool 

the condensers is pumped to the top of 

a recirculating cooling tower; as the 

heated water falls, it cools through an 

evaporative process and warm, moist air 

rises out of the tower, often creating a 

vapor plume. Hybrid wet-dry cooling 

towers employ both a wet section and 

dry section and reduce or eliminate the 

visible plumes associated with wet 

cooling towers. 

For the Phase I rule, EPA evaluated 

zero or nearly zero intake flow 

regulatory alternatives, based on the use 

of dry cooling systems. EPA determined 

that the annual compliance cost to 

industry for this option would be at 

least $490 million. EPA based the costs 

on 121 new facilities having to install 

dry cooling. For the Phase II proposal, 

EPA estimated that total social costs for 

dry cooling based on waterbody type 

were $2.1 billion per year (or roughly 

double the costs for wet towers). Thus, 

this option would be more expensive 

than dry cooling for new facilities. The 

cost for Phase II existing facilities to 

install dry cooling would be 

significantly higher than the cost for 

new facilities to do so due to the 

complexities of retrofitting both the dry 

cooling equipment and components of 

the cooling system. At proposal, EPA 

estimated that 550 Phase II existing 

facilities would be subject to Phase II 

regulation. The cost would be 

significantly higher because existing 

facilities have less flexibility, thus 

incurring higher compliance costs 

(capital and operating) than new 

facilities. For example, existing facilities 

might need to upgrade or modify 

existing turbines, condensers, and/or 

cooling water conduit systems, which 

typically imposes greater costs than use 

of the same technology at a new facility. 

In addition, retrofitting a dry cooling 

tower at an existing facility would 

require shutdown periods during which 

the facility would lose both production 

and revenues, and decrease the thermal 

efficiency of an electric generating 

facility. 

The disparity in costs and operating 

efficiency of dry cooling systems 

compared with wet cooling systems is 

considerable when viewed on a 

nationwide or regional basis. For 

example, under a uniform national 

requirement based on dry cooling, 

facilities in the southern regions of the 

United States would be at an unfair 

competitive disadvantage compared to 

those in cooler northern climates 

because dry cooling systems operate 

more efficiently in colder climates. Even 

under a regional subcategorization 

strategy for facilities in cool climatic 

regions of the United States, adoption of 

a minimum requirement based on dry 

cooling would likely impose unfair 

competitive restrictions for steam 

electric power generating facilities 

because of the elevated capital and 

operating costs associated with dry 

cooling. Adoption of requirements 

based on dry cooling for a subcategory 

of facilities under a particular capacity 

would pose similar competitive 

disadvantages for those facilities. 

As explained in the preamble to the 

proposal, EPA does not consider 

performance standards based on dry 

cooling a reasonable option for a 

national requirement, nor for 

subcategorization under this rule, 

because the technology of dry cooling 

carries costs that would potentially 

cause significant closures for Phase II 

existing facilities. Dry cooling 

technology would also have a 

significant detrimental effect on 

electricity production by reducing the 

energy efficiency of steam turbines. 

Unlike a new facility that can use direct 

dry cooling, an existing facility that 

retrofits for dry cooling would most 

likely use indirect dry cooling which is 

much less efficient than direct dry 

cooling. In contrast to direct dry 

cooling, indirect dry cooling does not 

operate as an air-cooled condenser. In 

other words, the steam is not condensed 

within the structure of the dry cooling 

tower, but instead indirectly through a 

heat exchanger. Therefore, the indirect 

dry cooling system would need to 

overcome additional heat resistance in 

the shell of the condenser compared to 

the direct dry cooling system. 

Ultimately, the inefficiency (i.e., energy 

penalty) of indirect dry cooling systems 

will exceed those of direct dry cooling 

systems in all cases. 

Although the dry cooling option is 

extremely effective at reducing 

impingement and entrainment, it is not 

economically practicable for existing 

facilities and would cause additional 

adverse environmental impacts and 

serious energy impacts. Although dry 

cooling technology uses extremely low-
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41609 

level or no cooling water intake, thereby 

reducing impingement and entrainment 

of organisms to extremely low levels, 

section 316(b) does not require that 

adverse environmental impact be 

completely eliminated, but that it be 

minimized using the best technology 

available. (DOE energy penalty study; 

DCN 4–2512). EPA does not believe that 

dry cooling technology is ‘‘available’’ to 

most Phase II existing facilities. 

Although EPA has rejected dry and 

wet cooling tower technologies as a 

national minimum requirement, EPA 

does not intend to restrict the use of 

these technologies or to dispute that 

they may be the appropriate cooling 

technology for some facilities. For 

example, facilities that are repowering 

and replacing the entire infrastructure of 

the facility may find that dry cooling is 

an acceptable technology in some cases. 

This technology may be especially 

appropriate in situations where access 

to cooling water is limited. Wet cooling 

tower technology may be suitable where 

adverse effects of cooling water intakes 

are severe and where screening systems 

are impractical, or where thermal 

discharge impacts pose serious 

environmental problems. Under Clean 

Water Act section 510, a State may 

choose to impose more stringent 

standards than required by Federal 

regulations. States may continue to use 

this authority to require facilities to use 

dry or wet cooling systems. 

F. What Is the Role of Restoration and 

Trading Under Today’s Final Rule? 

1. What Is the Role of Restoration? 

EPA is providing facilities with the 

option to use restoration for compliance 

alternatives § 125.94(a)(2), (3), and (5) 

where the performance of the 

restoration measures (the production 

and increase of fish and shellfish in the 

facility’s waterbody or watershed, 

including maintenance of community 

structure and function), is substantially 

similar to that which would have been 

achieved if the facility reduced 

impingement mortality and entrainment 

through the use of design and 

construction technologies and/or 

operational measures, to meet the 

applicable performance standards. (For 

a complete discussion of the legal 

analysis supporting restoration, see 

section VIII of this preamble.) The role 

of restoration under this rule is to 

provide additional flexibility to 

facilities in complying with the rule by 

eliminating or significantly offsetting 

the adverse environmental impact 

caused by the operation of a cooling 

water intake structure. Restoration 

measures that increase fish and shellfish 

in an impacted waterbody or watershed 

and result in performance substantially 

similar to that which would otherwise 

be achieved through reductions in 

impingement mortality and entrainment 

further the goal of minimizing adverse 

environmental impact while offering 

additional flexibility to both permitting 

authorities and facilities. Restoration 

measures may include such activities as 

removal of barriers to fish migration, 

reclamation of degraded aquatic 

organism habitat, or stocking of aquatic 

organisms. These are still technologies, 

within the meaning of that term as used 

in section 316(b) and as such are an 

appropriate means for meeting 

technology based performance 

standards. They are not analogous to 

water quality based effluent limitations 

on pollutant discharges because they are 

not designed to meet water quality 

standards or dependent on the 

condition of the receiving waterbody. 

Rather, they provide an additional 

means to meet the same performance 

standards that guide the selection of 

design and construction technologies 

and operational measures. 

Restoration measures have been used 

at existing facilities as one of many tools 

to implement section 316(b) on a caseby-case, best professional judgment 

basis to compensate for the death and 

injury of fish and other aquatic 

organisms caused by the cooling water 

intake structure. Under today’s rule, a 

Phase II existing facility may utilize 

restoration either in lieu of or as a 

supplement to design and construction 

technologies and/or operational 

measures. For example, a facility may 

demonstrate to the Director that velocity 

controls are the most feasible 

technology choice for the facility but 

that, when used on their own, the 

velocity controls are insufficient to meet 

the applicable performance standards at 

§ 125.94(b). The facility may then, in 

conjunction with the use of velocity 

controls, implement restoration 

measures to increase the fish and 

shellfish productivity of the waterbody 

in order to meet the performance 

standards at § 125.94(b). Another facility 

might demonstrate to the Director that 

restoration measures alone achieve the 

greatest compliance with the 

performance standards. A facility may 

alternatively request a site-specific 

determination of best technology 

available under § 125.94(a)(5) and use 

restoration measures to meet the 

alternate requirements. 

Facilities that propose to use 

restoration measures must demonstrate 

to the Director that they evaluated the 

use of design and construction 

technologies and operational measures 

and determined that the use of 

restoration measures is appropriate 

because meeting the applicable 

performance standards or requirements 

through the use of other technologies is 

less feasible, less cost-effective, or less 

environmentally desirable than meeting 

the standards in whole or in part 

through the use of restoration measures. 

Facilities must also demonstrate that the 

restoration measures they plan to 

implement, alone, or in combination 

with design and construction 

technologies and/or operational 

measures, will produce ecological 

benefits (production of fish and 

shellfish) at a level that is substantially 

similar to the level that would be 

achieved through compliance with the 

applicable impingement mortality and/ 

or entrainment performance standards 

under § 125.94(b), or alternative sitespecific requirements under 

§ 125.94(a)(5). In other words, 

restoration measures must replace the 

fish and shellfish lost to impingement 

mortality and entrainment, either as a 

substitute or as a supplement to 

reducing impingement mortality and 

entrainment through design and control 

technologies and/or operational 

measures. While the species makeup of 

the replacement fish and shellfish may 

not be exactly the same as that of the 

impingement mortality and entrainment 

losses, the Director must make a 

determination that the net effect is to 

produce a level of fish and shellfish in 

the waterbody that is ‘‘substantially 

similar’’ to that which would result 

from meeting the performance standards 

through design and construction 

technologies and/or operational 

measures alone. The final rule requires 

that a facility use an adaptive 

management method for implementing 

restoration measures because the 

performance of restoration projects must 

be regularly monitored and potentially 

adjusted to ensure the projects achieve 

their objectives (see 67 FR 17146–17148 

and 68 FR 13542). 

The final rule also requires that 

restoration projects which replace the 

lost fish and shellfish with a different 

species mix (‘‘out of kind’’ restoration) 

be based on a watershed approach to 

restoration planning. The boundaries of 

a ‘‘watershed’’ should be guided by the 

cataloging unit of the ‘‘Hydrologic Unit 

Map of the United States’’ (USGS, 1980), 

although it may be appropriate to use 

another watershed or waterbody 

classification system developed at the 

state or local level if such a system 

compares favorably in level of detail. 

For example, in coastal systems that 

support migratory fish, a coastal 
41610 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

waterbody that transects a number of 

watersheds may be the most appropriate 

unit for planning restoration. 

2. What Is the Role of Trading in 

Today’s Rule? 

In § 125.90(c), today’s final rule 

provides that if a State demonstrates to 

the Administrator that it has adopted 

alternative regulatory requirements in 

its NPDES program that will result in 

environmental performance within a 

watershed that is comparable to the 

reductions of impingement mortality 

and entrainment that would otherwise 

be achieved under § 125.94, the 

Administrator must approve such 

alternative requirements. A trading 

program could be a part of these 

alternative regulatory requirements. 

At proposal, EPA sought comment on 

the potential role of trading in the 

context of the section 316(b) Phase II 

rulemaking and possible approaches for 

developing a trading program. Trading 

under other EPA programs has been 

shown to provide opportunities for 

regulatory compliance at reduced costs. 

The EPA Office of Water’s Water 

Quality Trading Policy, published in 

January 2003 [DCN 6–5002], fully 

supports trading nutrients and sediment 

and adopts a case-by case approach to 

evaluating proposals to trade other 

pollutants. 

Trading in the context of section 

316(b) raises many complex issues, for 

example, how to establish appropriate 

units of trade and how to measure these 

units effectively given the dynamic 

nature of the populations of aquatic 

organisms subject to impingement 

mortality and entrainment. Should a 

State choose to propose a trading 

program under § 125.90(c), EPA will 

evaluate the State’s proposal on a caseby-case basis to ensure the program 

complies with the regulatory 

requirement—that it will result in 

environmental performance 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. Some 

commenters suggested that EPA adopt a 

trading program that would allow 

trading between aquatic organisms and 

pollutant discharges. EPA is concerned 

that such a program would introduce 

comparability and implementation 

challenges that would be difficult to 

overcome and therefore, EPA does not 

expect that such a program would work 

within the framework of today’s final 

rule. In addition, EPA does not believe 

that it is possible at this time to quantify 

with adequate certainty the potential 

effects on ecosystem function, 

community structure, biodiversity, and 

genetic diversity of such trades, 

especially when threatened and/or 

endangered species are present. Based 

on the current state of the science in 

aquatic community ecology and 

ecological risk assessment, States 

wishing to develop trading programs 

within the context of 316(b) would be 

best off focusing on programs based on 

metrics of comparability between fish 

and shellfish gains and losses among 

trading facilities, rather than the much 

more complex metrics that would be 

necessary for comparability among fish 

and shellfish losses on the one hand, 

and pollutant reductions on the other. 

VIII. Summary of Major Comments and 

Responses to the Proposed Rule and 

Notice of Data Availability (NODA) 

A. Scope and Applicability 

1. Phase II Existing Facility Definition 

Numerous commenters supported 

limiting the scope of the Phase II rule to 

existing facilities that generate and 

transmit electric power, or generate and 

sell such power to another entity for 

transmission, but suggested that EPA 

has not sufficiently limited the rule to 

only these facilities. Commenters noted 

that the proposed definition of ‘‘Phase II 

existing facility’’ does not adequately 

exempt existing manufacturing facilities 

that may occasionally transfer power 

off-site during peak load events. Some 

commenters suggested that EPA clarify 

the Phase II rule to specify that it does 

not apply to facilities whose primary 

business is not power generation. Some 

suggested limiting applicability to 

specified SIC codes (e.g., provided that 

the rule only applies to facilities in SIC 

4911). Examples of facilities identified 

by commenters that they believe should 

be excluded from Phase II include 

manufacturers that produce electricity 

by co-generation, power generating 

units that predominantly support a 

manufacturer, e.g., iron and steel, but 

also export some power, and facilities 

that generate power for internal use. 

Commenters requested that EPA 

further clarify when repowering is 

subject to existing facility requirements. 

For example, some commenters viewed 

as inconsistent the fact that the addition 

of a generating unit at an existing single 

unit site could increase intake flows by 

100% and meet the existing facility 

definition, while a replacement facility 

that increases intake flows by a much 

lesser amount (e.g., 25%) would not 

meet the existing facility definition. 

These commenters suggested that EPA 

consider a facility as an existing facility 

unless changes to the facility result in 

new environmental impacts. 

In § 125.91(a)(3) of today’s rule, an 

existing facility is subject to this rule if 

its primary activity is either to generate 

and transmit electric power, or to 

generate electric power that it sells to 

another entity for transmission. This 

provision was included in the rule in 

response to comments such as those 

described previously in this section. 

EPA believes that this criterion—the 

primary activity being the generation of 

electric power—sufficiently clarifies 

and limits the scope of this rule to 

existing facilities whose primary 

business is power generation. As 

discussed in Section II of this preamble, 

the final rule does not apply to existing 

manufacturing facilities, including 

manufacturing facilities that generate 

power for their own use and transmit 

any surplus power, or sell it for 

transmission, provided the primary 

activity of the facility is not electric 

power generation. For example, in the 

case of a facility that operates its own 

power generating units and such units 

predominantly support that facility’s 

manufacturing operation, its primary 

activity remains manufacturing, even if 

the facility exports some power. 

Whether a facility’s primary activity is 

to generate electric power will need to 

be determined on a case-by-case basis. 

Section II also makes clear that a 

manufacturing facility is not covered by 

this final rule just because it is colocated with another Phase II facility. 

EPA considered specifying SIC or 

NAIC codes to clarify the scope of the 

rule beyond that proposed in 

§ 125.91(a)(3), but did not do so because 

it believes the changes in the final rule 

are sufficient to address many issues 

raised in comments and because of 

concerns that SIC and NAIC codes may 

change over time, which could 

unintentionally alter the scope of the 

rule. 

With regard to repowering, section II 

of today’s notice discusses the scope of 

the final rule and specifically discusses 

the repowering issue. Section II also 

addresses other Phase I versus Phase II 

classification issues. 

2. Thresholds 

Some commenters supported use of 

the 50 MGD design intake flow 

threshold and the 25 percent cooling 

water use criteria in § 125.91(a)(2) and 

(4), respectively. Some suggested that 

facilities agreeing to limit their actual 

intake to less than 50 MGD should be 

excluded from the rule’s requirements 

or be allowed to request an exemption. 

Other commenters maintained that 

permitted or actual flows should be 

used rather than design flows. Some 

commenters asked that EPA clarify that, 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41611 

when applicable, the lesser design value 

of an intake facility and conveyance 

structure versus the design volume of 

intake pumps should be used to 

determine the 50 MGD threshold for 

applicability. Alternatively, others 

asserted that EPA should provide 

guidance that a facility’s design intake 

flow is not necessarily the flow 

associated with that of the intake 

pumps. 

Several commenters stated that 

emergency cooling water and emergency 

service water intakes should be exempt 

from the 50 MGD design intake flow 

threshold. These commenters 

recommended that EPA distinguish 

between primary cooling water intakes 

and emergency service water intakes, for 

example, at nuclear facilities. They 

reasoned that emergency service water 

systems, which can have a large design 

capacity (i.e., design capacity greater 

than 50 MGD), generally use an intake 

that normally operates a nominal 

amount of time to ensure that the 

system is in working order. Such backup systems are required for safety, but 

under normal conditions do not 

increase the operational capacity of the 

facility. Thus, these commenters 

maintain that rarely used emergency 

service water should not count towards 

50 MGD. 

With regard to the criterion that a 

Phase II existing facility must use at 

least 25 percent of the water it 

withdraws exclusively for cooling, some 

commenters indicated that proposed 

§ 125.91(d), which describes how to 

measure whether 25 percent of water 

withdrawn is used for cooling, was 

ambiguous. Commenters asserted that 

EPA should not require monthly 

determinations of applicability of the 

Phase II rule. One commenter suggested 

that EPA should assess the 25 percent 

cooling water use on an annual basis 

calculated once during permit renewal, 

since such an approach would provide 

a high degree of certainty. 

As discussed in the proposed rule (67 

FR 17129–17130), EPA chose the design 

intake flow 50 MGD threshold to focus 

on the largest existing power generating 

facilities, which the Agency believes are 

those with the greatest potential to 

cause or contribute to adverse 

environmental impact. EPA estimates 

that the 50 MGD threshold would 

subject approximately 543 of 902 (60 

percent) of existing power generating 

facilities to this rule and would address 

90 percent of the total flow withdrawn 

by existing steam electric power 

generating facilities. The 25 percent 

threshold ensures that nearly all cooling 

water and the most significant facilities 

using cooling water intake structures are 

addressed by these requirements. EPA 

notes that Phase II existing facilities, 

which are limited to facilities whose 

primary activity is power generation, 

typically use far more than 25 percent 

of the water they withdraw for cooling. 

Yet, as in the new facility rule, cooling 

water that is used in a manufacturing 

process either before or after it is used 

for cooling would not count towards 

calculating the percentage of a facility’s 

intake flow that is used for cooling 

purposes. 

EPA has retained in the final rule the 

50 MGD threshold based on design 

intake flow, rather than actual flow, for 

several reasons. Design intake flow is a 

fixed value based on the design of the 

facility’s operating system and the 

capacity of the circulating and other 

water intake pumps employed at the 

facility. This approach provides 

clarity—the design intake flow does not 

change, except in those limited 

circumstances when a facility undergoes 

major modifications or expansion, 

whereas actual flows can vary 

significantly over sometimes short 

periods of time. EPA believes that an 

uncertain regulatory status is 

undesirable because it impedes both 

compliance by the permittee and 

regulatory oversight, as well as 

achievement of the overall 

environmental objectives. Further, using 

actual flow may result in the NPDES 

permit being more intrusive to facility 

operation than necessary since facility 

flow would be a permit condition and 

adjustments to flow would have to be 

permissible under such conditions and 

applicable NPDES procedures. It also 

would require additional monitoring to 

confirm a facility’s status, which 

imposes additional costs and 

information collection burdens, and it 

would require additional compliance 

monitoring and inspection methods and 

evaluation criteria, focusing on 

operational aspects of a facility. 

With regard to intake versus pump 

capacity, EPA notes that under § 125.93 

of the final rule, design intake flow 

means the value assigned (during the 

cooling water intake structure design) to 

the total volume of water withdrawn 

from a source waterbody over a specific 

time period. Because numerous aspects 

of a cooling water intake or system can 

limit a facility’s intake flow, and 

because flow is a critical factor that 

affects the impacts posed by each 

facility’s cooling water intake structures, 

EPA has determined that it is more 

appropriate for the final rule to focus on 

a facility’s total designed volume of 

water withdrawn over a period of time, 

rather than to condition applicability of 

the rule on more specific parameters, 

such as intake capacity or pump design, 

which individually do not fully 

determine total design intake flow. 

The final rule does not explicitly 

exclude emergency cooling water and 

emergency service water intakes from 

consideration in determining which 

facilities are in-scope. Although EPA 

does not have detailed data on 

emergency cooling water and emergency 

intakes, based on other available data 

EPA does not believe that including 

consideration of emergency intakes 

within this rule significantly alters the 

scope of the rule. EPA’s survey of all 

existing electric utilities and nonutilities indicated that 84 percent of 

surveyed facilities have an average flow 

that equals or exceeds 50 MGD. These 

facilities would by necessity have a 

design intake flow that also equals or 

exceeds 50 MGD. Moreover, EPA 

assumes that this average flow data 

represent normal operating conditions 

and does not include emergency cooling 

water use. Consequently, EPA believes 

that relatively few facilities are 

potentially affected by this issue. 

Finally, § 125.91(a)(4), which 

describes how a facility must determine 

whether it meets the 25 percent cooling 

water use criterion has been changed in 

the final rule and provides that the 

percent of cooling water used be 

measured on an average annual basis. 

EPA believes this approach is more 

appropriate than making this 

determination on an average monthly 

basis, primarily because the annual 

average is an easier measurement to 

make. Furthermore, because all Phase II 

existing facilities generate power, most 

of the water will be used for cooling, 

rendering monthly evaluation of this 

value unnecessary. The final rule does 

not specify how often the facility must 

measure flow for this annual average. 

The facility is encouraged to consult the 

Permit Director to determine what level 

of data collection is needed. 

B. Environmental Impact Associated 

With Cooling Water Intake Structures 

Many comments addressed adverse 

environmental impact, questioning the 

definition and quantification of adverse 

environmental impacts. Several 

suggested defining adverse 

environmental impact exclusively at the 

population, community, or ecosystem 

levels, and believe that numbers of 

impinged and entrained organisms 

should not be a measure of adverse 

environmental impact. Some 

commenters argued that, if a facility can 

prove it does not cause adverse 

environmental impact at the population 

level, then it should be exempt from 

section 316(b) regulations. Commenters 
41612 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

cited numerous studies to illustrate 

whether cooling water intake structures 

cause adverse environmental impacts 

and claimed that where abundance or 

biomass falls, it was usually the result 

of some other stressor (overfishing, 

pollution, etc). These commenters 

asserted that populations are able to 

thrive despite high rates of impingement 

and entrainment because of densitydependence and compensation. 

Numerous other commenters 

disagreed with limiting the definition of 

adverse environmental impact to the 

population, community or ecosystem 

levels, and contended that any measure 

of impingement and entrainment 

constitutes adverse environmental 

impact. They asserted that power plants 

contribute to fish kills directly by 

impingement and entrainment, and 

indirectly by habitat loss. These 

commenters maintained that the results 

of population or ecosystem studies are 

highly subjective, and have no place in 

determining BTA, as once such impact 

levels are reached, recovery is often 

impossible. Regardless of the severity of 

adverse environmental impact, these 

commenters argued that section 316(b) 

requires minimization of adverse 

environmental impact. They maintained 

that cooling water intake structures 

contribute to fishery collapse and vast 

reductions in fish biomass and 

abundance that are measurable at the 

species level. These commenters 

suggested that actual national impacts 

due to cooling water intake structures 

are vastly underestimated due to poor 

data collection methodologies utilized 

when the majority of the studies were 

performed and because studies 

performed on impinged and entrained 

organisms overlooked the vast majority 

of affected species. 

In today’s final rule, EPA has elected 

not to define adverse environmental 

impact. EPA believes that it is 

reasonable to interpret adverse 

environmental impact as the loss of 

aquatic organisms due to impingement 

and entrainment. For a further 

discussion of this issue, see Section IV 

above. 

With regard to the relationship 

between intake flow and adverse 

environmental impact, some 

commenters asserted that the 

relationship of impingement and 

entrainment to flow is such that catch 

rates increase non-linearly 

(exponentially) in relation to the volume 

of water withdrawn, with entrainment 

rates being more strongly correlated to 

flow than impingement. Environmental 

commenters advocated for flow 

reduction technologies, such as 

retrofitting closed-cycle cooling 

technologies, as the most direct means 

of reducing fish kills from power plant 

intakes; they assert that reducing intake 

by up to 98 to 99 percent would result 

in a similarly high reduction of 

impinged and entrained organisms. 

Other commenters insisted that there is 

no statistically significant relationship 

between catch rate and flow, and the 

mathematical models that evaluate this 

relationship are inaccurate. 

EPA believes the record contains 

ample evidence to support the 

proposition that entrainment is related 

to flow (see DCN 2–013L–R15 and 2– 

013J) while impingement is related to a 

combination of flow, intake velocity and 

fish swim speed (see DCN 2–029). 

Larger withdrawals of water may result 

in commensurately greater levels of 

entrainment. Entrainment impacts of 

cooling water intake structures are 

closely linked to the amount of water 

passing through the intake structure 

because the eggs and larvae of some 

aquatic species are free-floating and may 

be drawn with the flow of cooling water 

into an intake structure. Swim speeds of 

affected species as well as intake 

velocity must be taken into account to 

predict rates of impingement in relation 

to flow in order to account for the 

ability of juvenile and adult lifestages of 

species to avoid impingement. Due to 

this relationship, EPA agrees that 

reducing intake by installing flow 

reduction technologies will result in a 

similarly high reduction of impinged 

and entrained organisms, but EPA 

believes that other technologies that do 

not necessarily reduce flow but that do 

reduce the number of aquatic organisms 

impinged and entrained will also 

minimize adverse environmental impact 

associated with cooling water intake 

structures. As such, today’s rule 

provides for flexibility in meeting the 

performance standards. 

C. Performance Standards 

The performance standards 

promulgated today are expressed as 

reductions of impingement and 

entrainment measured against a 

calculation baseline. The purpose of a 

calculation baseline is to properly credit 

facilities that have installed control 

technologies prior to the promulgation 

of the rule. EPA received numerous 

comments on the performance standards 

and the calculation baseline. 

1. Appropriate Standards 

Many commenters discussed the 

appropriateness of the performance 

standards. While many commenters 

acknowledged that the performance 

range may be attained at some facilities 

(using certain technologies and in 

appropriate conditions), several 

commenters stated that the technical 

justification for the performance 

standards was insufficient and may be 

biased towards higher performing 

examples of each technology. Many 

commenters submitted that some 

technologies will perform at some sites, 

but that no technology will meet the 

standards at all sites. Another 

commenter supported the concept of the 

performance standards, as long as 

sufficient flexibility was retained 

through the use of restoration measures 

and cost tests. Some commenters 

suggested allowing permit writers the 

flexibility to create site-specific 

performance standards. 

EPA has selected performance 

standards to facilitate a more 

streamlined permitting process, and to 

provide consistent national standards. 

EPA has chosen to express the targets by 

reference to a percentage reduction in 

impingement and entrainment because, 

as discussed above, these losses can 

easily be traced to cooling water intake 

structures. Therefore, this is a 

convenient indicator of the efficacy of 

controls in reducing environmental 

impact. As discussed in more detail 

below, it is also a useful basis against 

which to consider the efficacy of 

restoration technologies, which focus on 

the replacement of fish and shellfish as 

an alternative means of minimizing 

adverse environmental impact of intake 

structures. 

Additional documentation has been 

collected and reviewed by EPA to 

further support the percent reductions 

contained in the performance standards. 

EPA has added this information to the 

Technology Efficacy database (DCN 6– 

5000), which EPA has expanded to 

allow users to query and compare basic 

data on technology performance and 

applicability. EPA recognizes that some 

may disagree with basing the 

performance standards on the wide 

range of data available in the database. 

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. 

It is for this reason that performance 

standards, rather than prescriptive 

technologies, were chosen. By opting for 

performance standards instead of 

requiring the deployment of specified 

technologies, EPA maintains a desired 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41613 

flexibility in the implementation of the 

rule, thus allowing a facility to select 

measures that are appropriate to the site 

conditions and facility configuration. 

EPA believes that there are technologies 

available (including restoration 

measures) that can be used to meet the 

performance standards at the majority of 

facilities subject to the final Phase II 

rule. EPA believes that it will likely be 

the exceptional case where no 

technology or suite of technologies will 

be able to achieve the performance 

standards. This is not to say, however, 

that the technologies are always 

economically practicable to implement; 

there may be situations where the costs 

are not justified and it is for those 

situations that EPA has provided for 

site-specific determinations of best 

available technology for minimizing 

adverse environmental impact. 

2. Application of the Performance 

Standards 

Commenters generally noted that the 

application of the performance 

standards would be very difficult, for a 

number of site-specific reasons. Several 

commenters noted that the performance 

standards are not sufficiently defined to 

make a full evaluation of their 

applicability. For example, EPA has not 

defined the performance standards as 

being measured using all species or 

selected species, or by counting 

individuals versus measuring biomass. 

Some commenters noted that each of the 

methods discussed by EPA could have 

merit at a given facility, and that 

flexibility would be needed to evaluate 

compliance at a variety of intake 

configurations. Another commenter 

further noted that it is inappropriate for 

EPA to state that the performance 

standards are achievable when the 

standards are undefined. One 

commenter suggested that EPA has not 

shown that the performance standards 

can be met at a reasonable cost. Other 

commenters stated that reductions may 

be achievable for only some species of 

life stages and that this approach may 

not account for natural fluctuations in 

population. These commenters claim 

that implementing a uniform, 

nationwide performance standard 

would be exceedingly complex and 

subject to site-specific factors that could 

significantly affect the performance of 

the control technology. Several 

commenters noted that, for these 

reasons, EPA should strongly consider a 

site-specific approach to implement 

316(b), including a risk assessmentbased approach as suggested by one 

commenter. 

A number of commenters stated that 

the performance standards would be 

best implemented as a set of goals or as 

a best management practice. These 

commenters contended that in view of 

the wide variety of environmental 

conditions at facilities, including 

natural fluctuations in populations, 

compliance with a national performance 

standard will be difficult. They claimed 

that by using the standards as a goal 

instead of a condition in the permit, a 

facility can have greater certainty as to 

its compliance status. Similarly, several 

commenters suggested that the permit 

contain conditions requiring proper 

technology selection, installation, 

maintenance, and adjustments instead 

of requiring compliance with the 

performance standards. 

Commenters were divided over the 

concept of a range for the performance 

standards. Some commenters supported 

the range, arguing that a facility can 

achieve some reduction within the 

range and still be compliant, and others 

were opposed, claiming that a range of 

performance promotes uncertainty in 

determining compliance. Some 

commenters also noted that, by giving a 

facility a range of performance, EPA is 

encouraging performance in the lower 

end of the range and therefore not 

meeting the definition of ‘‘best 

technology available.’’ 

Several commenters noted that 

consideration of entrainment mortality 

is important to correctly determine 

compliance. One commenter also noted 

that natural events will affect 

compliance, such as moribund fish 

being swept into an intake or heavy 

debris loads following a storm. 

As in the Phase I rule, EPA is setting 

performance standards for minimizing 

adverse environmental impact based on 

a conceptually simple and certain 

metric-reduction of impingement 

mortality and entrainment. EPA 

recognizes however, that there are 

challenges associated with measuring 

such reduction due to fluctuations in 

waterbody conditions (species 

abundance, composition, etc.) over time. 

While it is relatively straightforward to 

measure impingement mortality and 

entrainment reductions relative to past 

levels, it is more difficult to determine 

reductions relative to what would have 

occurred in the absence of control 

technologies if waterbody conditions 

change after the technologies are 

installed. Data provided with the 

proposed rule (DCN 4–0003) indicate 

that there is substantial variability over 

time in the numbers and species mix of 

impinged and entrained organisms at 

any given facility. While changes in 

operational practices and sampling 

methods account for some of this 

variability, the data indicate that there 

may be substantial natural variability in 

waterbody conditions as well. This 

natural variability and the changes to 

species composition over time may 

affect the ability of these technologies to 

perform consistently at a certain level. 

This is one reason why EPA has 

provided a compliance determination 

alternative under which facilities 

comply with the construction, 

operational, maintenance, monitoring, 

and adaptive management requirements 

of a Technology Installation and 

Operation Plan (or Restoration Plan) 

designed to meet the performance 

standards, rather than having to 

demonstrate quantitatively that they are 

consistently meeting them, which may 

be difficult in the face of natural 

variability. Under this approach, if 

monitoring data suggest that 

performance standards are not being 

met despite full compliance with the 

terms of the Technology Installation and 

Operations Plan or the Restoration Plan, 

the Plan will need to be adjusted to 

improve performance. 

EPA has provided examples of 

facilities in different areas of the 

country sited on different waterbody 

types that are currently meeting or 

exceeding the performance standards 

promulgated today. The ability of these 

facilities to attain similar performance 

standards suggests that while sitespecific factors can influence the 

performance of a given technology, it is 

the exceptional situation where no 

design or construction technology is 

capable of meeting the performance 

standards. EPA opted for performance 

ranges instead of specific compliance 

thresholds to allow both the permittee 

and the permitting authority a certain 

degree of flexibility in meeting the 

obligations under the final Phase II rule. 

EPA does not believe that performance 

ranges promote uncertainty. Instead, 

EPA has selected performance ranges 

out of the recognition that precise 

results may not be able to be replicated 

in different waterbody types in different 

areas of the country. EPA disagrees with 

the comment that it has not shown that 

the performance standards can be met at 

a reasonable cost. The cost and 

economic impact analysis for the final 

rule supports EPA’s determination that 

the final rule, including the 

performance standards, are 

economically practicable at a national 

level. In addition, the final rule includes 

a site-specific compliance alternative to 

address any potential situation where 

meeting the performance standards, 

when evaluated on a facility-specific 

basis, would result in costs that are 

significantly greater than the costs 
41614 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

considered by EPA, for a like facility in 

establishing the standards, or that are 

significantly greater than the benefits of 

compliance with the applicable 

performance standards at the facility. 

Thus, the final rule ensures that the 

costs of the rule are economically 

practicable to the extent required by 

section 316(b). 

In developing the final rule, EPA 

identified and examined a broad range 

of cooling water intake structure 

technologies and determined, at a 

national level, that these technologies 

support the final performance 

standards. EPA notes that, although the 

performance standards address all life 

stages of fish and shellfish, the Director 

has significant discretion as to how the 

performance standards are applied in 

the permit. For example, the Director 

may determine that all species must be 

considered or that only representative 

species are to be considered. With 

regard to natural fluctuations in fish and 

shellfish populations, and the 

Technology Installation and Operation 

Plan compliance scheme discussed 

above addresses the concern that natural 

fluctuations could impact the level of 

impingement mortality and entrainment 

at a given facility over time. Further, the 

Director is given considerable discretion 

to determine, based on the facility’s 

Comprehensive Demonstration Study, 

the appropriate averaging period and 

precise metric for determining 

impingement mortality and entrainment 

reductions. Generally, averaging over 

longer time periods (i.e., a full five year 

permit term) can substantially reduce 

the impact of natural variability on the 

determination of whether the 

performance standards are being met. 

3. Requirements by Waterbody Type 

As stated in section C. 2, different 

performance standards would apply for 

facilities located upon different 

waterbody types. Comments were 

received both in support of and against 

basing performance standards in part on 

waterbody type. Some commenters did 

not support the withdrawal threshold of 

5 percent of the mean annual flow for 

facilities on freshwater rivers, as the 

organisms at an intake may not be 

subject to entrainment or may not be 

evenly distributed. Some State 

commenters supported the withdrawal 

threshold for freshwater rivers, and 

another suggested correlating the intake 

flow requirements with the total flow of 

the waterbody to better protect smaller 

flow rivers. One State commenter 

generally opposed all of the proposed 

thresholds on freshwater rivers as being 

arbitrary and stated that the regulations 

would be more effective by considering 

the impacts to the population within the 

waterbody. For lakes and reservoirs, one 

commenter opposed the requirement to 

not disturb the thermal stratification of 

the waterbody, stating that the 

requirement has not been defined in 

sufficient detail, that EPA has presented 

no evidence that the disruption is 

always detrimental, or presented any 

discussion of technologies that might 

mitigate any thermal disturbances. 

Some commenters did not support 

additional controls on the Great Lakes, 

stating that the Lakes are not unique and 

do not require greater protection. 

Another State commenter suggested that 

additional requirements be 

implemented for any impaired 

waterbody. 

EPA considers location to be an 

important factor in addressing adverse 

environmental impact and one 

expressly included in the language of 

section 316(b). When cooling water is 

withdrawn from sensitive biological 

areas, there is a heightened potential for 

adverse environmental impact, since 

these areas typically have higher 

concentrations of impingeable and 

entrainable aquatic organisms. 

Therefore, the final rule includes 

performance standards that vary, in 

part, by waterbody type. For example, 

estuaries and tidal rivers have a higher 

potential for adverse impact because 

they contain essential habitat and 

nursery areas for a majority of 

commercial and recreational species of 

fish and shellfish. Therefore, EPA 

believes that these areas warrant a 

higher level of control that includes 

both impingement and entrainment 

controls. 

EPA also included performance 

standards for other waterbody types. 

Facilities withdrawing greater than 5% 

of the mean annual flow from 

freshwater rivers and streams will have 

additional requirements. As described 

in the Phase I proposed rule (65 FR 

49060) and the Phase II NODA (66 FR 

28853), the withdrawal threshold is 

based on the concept that absent any 

other controls, withdrawal of a unit 

volume of water from a waterbody will 

result in the entrainment of an 

equivalent unit of aquatic life (such as 

eggs and larval organisms) suspended in 

that volume of the water column. Thus, 

facilities withdrawing greater than 5% 

of the mean annual flow from 

freshwater rivers and streams may 

entrain equal proportions of aquatic 

organisms. Freshwater rivers and 

streams are somewhat less susceptible 

to entrainment than certain other 

categories of waterbodies and, therefore, 

the final rule limits the requirement for 

entrainment control in fresh waters to 

those facilities that withdraw the largest 

proportion of water from freshwater 

rivers or streams. EPA has promulgated 

special requirements for facilities 

withdrawing from lakes and reservoirs. 

Facilities tend to withdraw from the 

deeper portions of lakes and reservoirs, 

as these areas hold the coolest water. 

The rule specifies that the intake flows 

must not disturb the natural 

stratification (thermoclines) in the 

waterbody, as this may disrupt the 

composition of dissolved oxygen and 

adversely affect aquatic species. While 

such disruption is often detrimental, 

this additional performance standard 

does not apply where the disruption 

does not adversely affect the 

management of fisheries. Intake 

location, the volume of water 

withdrawn, and other design 

technologies can be used to address this 

requirement. Facilities located on the 

Great Lakes are also subject to 

additional requirements because these 

waterbodies have areas of high 

productivity and sensitive habitat and 

in this respect have an ecological 

significance akin to estuaries. 

4. Approved Design and Construction 

Technology Option 

In response to comments on the 

burden to facilities and permit writers, 

EPA is including in the final rule an 

approved design and construction 

technology option (previously referred 

to as a ‘‘streamlined technology option’’ 

or ‘‘pre-approved technology option’’) 

for facilities in certain locations. Under 

this option, a facility installing a 

specified technology would be subject 

to reduced application requirements, 

including a reduced Comprehensive 

Demonstration Study. In addition, the 

final rule sets forth criteria that State 

Directors may use to identify and 

approve additional technologies. 

Nearly all commenters supported the 

concept of an approved design and 

construction technology option as a 

positive step in facilitating 

implementation of section 316(b). 

Several commenters added that this 

option should not preclude the use of 

cost tests, restoration measures or the 

use of other approaches. One 

commenter opposed the approved 

design and construction technology 

option, arguing that the selection of only 

one or two technologies oversimplifies 

the complexity of waterbodies, and that 

the approach would not be sufficiently 

protective. 

Some commenters agreed that the 

wedgewire screen should be an effective 

technology in certain situations and 

noted that EPA should specify screen 

slot openings in the approved design 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41615 

and construction technology option. 

One of the commenters stated that 

research on the wedgewire screen 

suggests that the technology should 

easily meet the impingement 

requirements, but that further research 

may be necessary to confirm the 

effectiveness for entrainment reductions 

with varying slot openings. 

Some commenters offered suggestions 

for additional changes to the option, 

such as developing scientifically sound, 

peer-reviewed criteria for evaluating 

pre-approved technologies, identifying 

the technologies in technical guidance 

documents as opposed to the regulation, 

and continuing to allow restoration 

measures. Some commenters also 

suggested specifying that any 

monitoring performed would be 

informational in nature and not affect 

the facility’s compliance status, or that 

facilities only be required to 

‘‘substantially meet’’ the stated goals. 

Other commenters suggested expanding 

the scope of the approved design and 

construction technology option to 

include prescribed operational or 

restoration measures or preapproved 

technologies for intakes located on manmade cooling reservoirs. 

A facility that chooses to comply 

under the pre-approved technology 

option should not, in addition, need to 

employ restoration measures. The intent 

of the pre-approved technology 

compliance alternative is to provide a 

means to reduce the application and 

information collection requirements for 

facilities that are able to meet 

performance standards through a 

technology that is proven to meet 

performance standards for impingement 

mortality and entrainment in most 

cases. A facility that chooses to comply 

by meeting the conditions specified at 

§ 125.99(a), therefore, should be able to 

achieve the performance standards for 

both impingement mortality and 

entrainment. Facilities that propose an 

alternative technology for consideration 

as a pre-approved technology under 

§ 125.99(b) are encouraged by EPA to 

propose technologies to the Director for 

approval that are capable of meeting 

performance standards for both 

impingement mortality and entrainment 

with a high degree of confidence. 

However, a situation could arise where 

a pre-approved technology only meets 

performance standards for impingement 

mortality or entrainment. In such cases, 

facilities that choose to comply using an 

approved design and construction 

technology that only met a subset of 

applicable performance standards could 

either employ other (1) design and 

construction technologies, operational 

measures and/or restoration measures or 

(2) request a site-specific requirements 

for the remaining performance 

standards based on either the cost-cost 

or cost-benefit test. 

Some commenters stated that EPA 

should specify the wedgewire screen 

slot opening size. EPA disagrees that it 

should specify a uniform screen slot 

opening size for all facilities that choose 

the approved design and construction 

technology alternative. The rule states 

in § 125.99(a)(1)(iv) that the screen slot 

size must be appropriate for the size of 

eggs, larvae, and juveniles of all fish and 

shellfish to be protected from 

entrainment at the site. Because the 

species to be protected differ among 

locations, the slot sizes will need to be 

tailored to the sizes of the various 

assemblages of species at each site. EPA 

therefore has determined that the 

Director should determine the 

appropriate design criteria, such as 

wedgewire screen slot opening size, on 

a case-by-case basis. Since no 

impingement mortality and entrainment 

Characterization Study is required 

under this streamlined option, EPA 

expects that this determination would 

be based on available information 

regarding species and life-stage 

composition of organisms within the 

receiving waterbodies. Facilities may 

wish to assemble available data and 

propose a screen slot opening size for 

the Director’s consideration. 

Some commenters stated that EPA 

should develop peer-reviewed criteria 

for evaluating pre-approved 

technologies other than the wedgewire 

screen technology described in 

§ 125.99(a). EPA disagrees that it needs 

to develop specific criteria for 

evaluating pre-approved technologies. 

EPA believes that the Director is best 

equipped to determine the most 

appropriate technologies for approval in 

their jurisdictions, since these Directors 

are most familiar with the siteconditions and intake configurations of 

the facilities within their jurisdictions, 

and have physical access to the 

facilities. Under § 125.99, EPA has set 

forth a broad framework outlining the 

types of information that the permitting 

authority would need to evaluate 

specific technologies, including design 

criteria of the proposed technology, site 

characteristics and conditions necessary 

to ensure that the technology will meet 

the performance standards, and data to 

demonstrate that the facilities in the 

Director’s jurisdiction with the 

proposed technology and site conditions 

will be able to meet the performance 

standards in § 125.94(b). EPA believes 

that the Directors will be able to 

evaluate the data and make 

determinations as to whether the 

proposed technologies are suitable for 

use as approved design and 

construction technologies in their 

jurisdictions. However, EPA is requiring 

that the Director take public comment 

on such determinations prior to 

finalizing them. 

In answer to comments that EPA 

should not require facilities choosing 

the approved design and construction 

compliance alternative to demonstrate 

through monitoring that they meet the 

applicable performance standards, EPA 

disagrees. EPA believes that verification 

monitoring is very important because, 

while the pre-approved technologies are 

designed to meet the performance 

standards in most cases, the actual 

efficacy of any technology will be 

affected by site-specific circumstances 

and conditions, as well as proper 

operation and maintenance of the 

technology. For this reason, EPA 

believes that it is necessary and 

appropriate for these facilities to 

prepare a Technology Installation and 

Operation Plan that describes how they 

will operate and maintain the 

technology and assess success in 

meeting the performance standards, as 

well as adaptive management steps they 

will take if the technology does not 

perform as expected. They must also 

propose a Verification Monitoring Plan 

to describe the monitoring they will 

perform to support their performance 

assessment. EPA notes that facilities 

that select the approved technology 

alternative have significantly reduced 

application and information collection 

requirements relative to facilities that 

comply under other alternatives. 

One commenter stated that the 

approved design and construction 

technology alternative will not be 

sufficiently protective given the 

complexity of waterbodies. While EPA 

does not agree with this comment, EPA 

recognizes that the efficacy of a given 

technology will be affected by sitespecific conditions, such as biological 

and chemical factors in the waterbody. 

Because the efficacy of the technology 

will be affected by such site-specific 

conditions, EPA has required all 

facilities that choose to comply using 

the approved design and construction 

technology compliance alternative to 

submit a Technology Installation and 

Operation Plan and a Verification 

Monitoring Plan, and to determine if 

they are meeting the applicable 

performance standards through 

monitoring, and adjust their operations 

accordingly if they are not. EPA 

believes, based upon extensive research, 

that the majority of facilities with the 

appropriate site conditions, and that 

have installed and properly operated 
41616 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

and maintained submerged cylindrical 

wedgewire screen technology, should be 

capable of meeting the performance 

standards set forth in § 125.94(b). For 

facilities that fail to meet performance 

standards through the approved design 

and technology alternative, the Director 

may amend the facility’s permit to 

require the use of additional design and 

construction technologies, operational 

measures, and/or restoration measures, 

in order to meet the performance 

standards, or if appropriate, issue a sitespecific determination of BTA. 

5. Capacity Utilization Threshold 

In the proposed rule, EPA introduced 

reduced requirements for facilities that 

are typically not operating year-round 

and would therefore bear a 

proportionately higher cost to comply 

with the rule. EPA proposed that 

facilities that operate less than 15% of 

the time (also known as peaking 

facilities) would only be subject to 

impingement reductions, regardless of 

the waterbody type upon which the 

facility is located. 

Generally, commenters supported the 

concept of reduced requirements for 

peaking facilities. However, commenters 

stated that EPA must further refine the 

definition of peaking facilities and in 

many cases suggested that EPA adopt 

the United States Department of 

Energy’s definition of capacity 

utilization. Aspects of EPA’s definition 

on which commenters requested 

clarification included how to measure 

the capacity rate (per intake, per facility, 

per generating unit, etc.), the time frame 

for determining historic utilization 

rates, and the definition of ‘‘available’’ 

with respect to how to calculate the 

capacity utilization rate. One 

commenter further suggested that EPA 

allow an expanded definition (i.e., a 

higher capacity utilization rate) for 

facilities that typically operate in 

periods of low abundance of entrainable 

organisms. One commenter further 

requested that the reduced requirements 

for peaking facilities be extended to 

account for future operations at the 

plant as well. Another commenter 

expressed concern over the definition of 

the threshold, as the operational time 

for the facility could still coincide with 

periods of high abundances of 

organisms and therefore still result in 

significant entrainment. One commenter 

opposed the threshold, stating it could 

encourage facilities to reduce electricity 

production in order to have less 

stringent requirements and therefore 

impact energy production, prices, and 

energy supply nationwide. 

State commenters generally supported 

the concept, but were divided as to the 

threshold utilization rate; some States 

preferred a lower threshold and one 

mentioned that it would prefer a higher 

threshold. One State did not support the 

reduced requirements for peaking 

facilities, noting that the time frame in 

which the facility operates may be more 

important than the volume withdrawn. 

Another State suggested that restoration 

or mitigation also be required of peaking 

facilities. 

EPA has identified peaking facilities 

in the final Phase II rule as those 

facilities that operate at an overall 

capacity of less than 15 percent. EPA 

believes that facilities operating below 

15% should be subject to less stringent 

compliance requirements relative to a 

typical base load facility. The threshold 

of 15% is based on these facilities’ 

reduced operating levels, low potential 

for entrainment impacts, and 

consideration of economic practicability 

(see, 67 FR 17141). To address 

commenter concerns, EPA has modified 

the capacity utilization definition to say 

that the capacity utilization rate applies 

only to that portion of the facility that 

generates electricity for transmission or 

sale using a thermal cycle employing 

the steam water system as the 

thermodynamic medium. The Agency 

has amended the definition of the 

capacity utilization rate threshold to 

remove the term ‘‘available’’ from the 

definition, as requested by comments. 

Further, the Agency has allowed for 

calculation of the capacity utilization 

rate on an intake basis, when the intake 

is exclusively dedicated to a subset of 

the plant’s generating units, and for 

determination of the capacity utilization 

rate based on a binding commitment of 

future operation below the threshold. 

Peaking facilities are typically older, 

less efficient generating units. Because 

the cost of operation is higher, peaking 

facilities are generally employed when 

generating demand is greatest and 

economic conditions justify their use. 

Such usage is typically a fraction of the 

unit’s overall generating capacity and 

represents significantly less cooling 

water used when compared to the 

design intake capacity. This would 

appear to obviate the need for 

entrainment controls for the facility. 

Most peaking facilities are employed 

during the highest electrical demand 

period, typically mid-winter or midsummer. It is generally accepted that 

while these seasons can sometimes be 

associated with a higher abundance of 

aquatic organisms or spawning events, 

mid-winter and mid-summer are not 

typically considered to be critical 

periods for aquatic communities. Given 

these operating conditions, generally 

entrainment controls would appear to 

be an unnecessary cost for these 

facilities because the losses, while they 

occur, would have minimal adverse 

environmental impact. 

D. Site-Specific Approach 

Past implementation of section 316(b) 

often followed the draft guidance 

document published in 1977, which 

promoted a largely site-specific 

approach. In this rulemaking, EPA is 

establishing national performance 

standards for best technology available 

for minimizing adverse environmental 

impacts in connection with cooling 

water intake structures. Many comments 

were received regarding a site-specific 

approach to implementation. 

1. Approach 

Many commenters favored a sitespecific approach in place of national 

performance standards. Many of the 

commenters cited a need for flexibility 

to comply with the regulations, and 

stated that only a site-specific approach 

can represent the best framework for 

addressing site-specific environmental 

impacts in a cost-effective manner. 

Commenters also favored an approach 

that resembles current practices for 

implementation of 316(b), in which sitespecific determinations are made 

without reference to national 

performance standards. 

Some commenters did not support the 

concept of a site-specific rule. One 

commenter stated that it does not fulfill 

a national standard and allows a more 

lenient application for some facilities. 

Another commenter added that a sitespecific approach favors industry, as the 

resources of the regulators and 

interested public groups to respond to 

information-intensive site-specific 

determinations are limited. Some States 

also expressed concern over a sitespecific approach, as it could be less 

stringent than the present approach, as 

well as more burdensome. Some other 

States expressed support for sitespecific approaches. 

In the final rule, EPA has established 

national performance requirements for 

the reduction of impingement mortality 

and entrainment that reflect best 

technology available to minimize 

adverse environmental impact for Phase 

II existing facilities, and has authorized 

five different compliance alternatives to 

achieve those standards, including a 

site-specific alternative. Thus, the 

Agency has provided both clear national 

standards of environmental protection 

and sufficient flexibility to allow for the 

selection of cost-efficient approaches to 

compliance and permit administration. 

In addition, under certain compliance 

alternatives, Phase II existing facilities 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41617 

can use restoration measures, either in 

lieu of, or in combination with 

technologies and/or operational 

measures, when design and 

construction and/or operational 

measures alone are less feasible, less 

cost-effective or less environmentally 

desirable. This provides additional 

flexibility to permittees and permitting 

agencies. Finally, as discussed in 

Section VII of this preamble, EPA does 

not agree that all aspects of certain sitespecific approaches effectively fulfill 

the requirements of section 316(b). 

2. Existing Programs and 

Determinations 

Several commenters stated that there 

is already a successful 30-year history of 

implementing section 316(b). Some 

commenters noted that many States 

currently implement 316(b) using a sitespecific approach and that these 

programs should be allowed to 

continue, including any restoration or 

enhancement programs the States have 

established. Others stated that existing 

BTA determinations (conducted using a 

site-specific approach) should remain 

valid. 

EPA acknowledges that some States’ 

existing programs and determinations 

have been successful in reducing 

adverse environmental impacts to 

waters of the United States associated 

with cooling water intake structures. 

EPA disagrees, however, that all existing 

BTA determinations should remain 

valid. Some historical BTA decisions 

may be based on physical, chemical or 

biological conditions that are no longer 

relevant at the site, or reflect BTA 

technology that is outdated and would 

not meet the performance standards set 

forth in today’s final rule. However, the 

final rule provides for EPA approval of 

alternative State program requirements 

where such State NPDES requirements 

will result in environmental 

performance within a watershed that is 

comparable to the reductions of 

impingement mortality and entrainment 

that would otherwise be achieved under 

§ 125.94. (see § 125.90(c)). Thus, this 

rule provides a reasonable degree of 

flexibility for States to implement 

existing effective programs. In 

§ 125.94(e), States are also allowed to 

establish more stringent BTA 

requirements if necessary to comply 

with State, tribal, or other federal law. 

E. Implementation 

1. Calculation Baseline 

Numerous commenters indicated that 

they were unclear as to how to calculate 

the baseline conditions for impingement 

mortality and entrainment. Some 

commenters suggested that the 

calculation baseline should reflect 

unrestricted operation at full design 

capacity year-round to avoid 

continually changing the baseline, since 

maintenance and operational schedules 

change over time. Another commenter 

added that the baseline definition must 

specify that data be based upon 

maximum operation of a given facility, 

to avoid allowing a facility to withdraw 

more water than it has been permitted 

for (based on an averaged flow). Other 

commenters claimed that the use of a 

calculation baseline was problematic 

due to the difficulties of extrapolation 

between localities and waterbody types. 

One commenter asserted that the 

calculation baseline should reflect 

current local environmental conditions, 

not historical or hypothetical future 

conditions and should specify the level 

of operation that would be maintained 

in the absence of operational controls 

implemented for reducing impingement 

and entrainment. 

Many commenters supported an ‘‘As 

Built’’ alternative approach where a 

facility would calculate entrainment 

reduction based on historical 

measurements before installation of new 

technology or sampling immediately in 

front of the new technology and 

enumerating the organisms of a size that 

will pass through a standard 3⁄8-inch 

screen. Several commenters agreed that 

the use of historical data would aid in 

estimating the calculation baseline 

while others cautioned against the use 

of historical data that may not be 

relevant to the current conditions. One 

commenter disagreed with EPA’s 

statement that the baseline could be 

estimated by evaluating existing data 

from a nearby facility; the commenter 

asserted that site-specific factors 

determine whether an organism will 

interact with a cooling water intake 

structure and/or survive the interaction. 

Overall, most commenters 

recommended that EPA allow the 

Director broad discretion and flexibility 

in evaluating the calculation baseline 

due to varying site conditions. 

The calculation baseline provides a 

standard intake configuration by which 

facilities can determine relative 

reductions in impingement and 

entrainment. EPA acknowledges the 

numerous comments on the proposed 

definition and has refined the definition 

to provide more clarity in implementing 

this concept. For example, the 

definition in the proposed rule 

incorporated a shoreline intake 

structure. In the final rule, the definition 

has been clarified to specify a 3⁄8-inch 

mesh traveling screen at a shoreline 

intake structure. Based on available data 

that indicate this is a common intake 

structure configuration at Phase II 

existing facilities, EPA designated a 3⁄8-

inch screen as the standard mesh size 

against which reductions will be 

calculated. Similarly, the assumption of 

no impingement or entrainment controls 

in the definition in the proposed rule 

has been clarified to describe an intake 

where the baseline operations do not 

take into include any procedures or 

technologies to reduce impingement or 

entrainment. EPA recognizes that some 

facilities may have control technologies 

in place that already reduce 

impingement or entrainment; the final 

calculation baseline would allow credit 

for such reductions. Additionally, EPA 

further clarified the definition to 

include the potential data sources that 

may be used in defining the calculation 

baseline, such as historical data, data 

collected at nearby locations, or data 

collected at the facility. EPA is 

authorizing the use of existing biological 

data in determining the calculation 

baseline to minimize the impacts to 

facilities, provided that the data are 

representative of current facility and/or 

waterbody conditions (as applicable) 

and were collected using appropriate 

quality control procedures. 

EPA has further clarified the 

definition to provide that the 

calculation baseline may be based on an 

intake structure located at a depth other 

than a surface intake if the facility can 

demonstrate that the standard definition 

(i.e., a shoreline surface intake) would 

correspond to a higher baseline level of 

impingement mortality and/or 

entrainment. 

EPA chose not to incorporate 

operating capacity into the calculation 

baseline, as the definition is not 

dependent upon intake flow volumes. 

EPA has chosen to adopt the ‘‘as built’’ 

approach: as stated in § 125.93, a facility 

may choose to use the current level of 

impingement mortality and entrainment 

as the calculation baseline. 

EPA recognizes that this definition 

cannot address the variety of intake 

configurations and other conditions at 

all facilities and therefore cannot define 

the calculation baseline in all settings. 

However, EPA believes that the 

calculation baseline in the final rule is 

clear and straightforward to implement, 

and allows for proactive facilities (i.e., 

those with control technologies, 

operational procedures, or restoration 

measures already in place) to take credit 

for existing measures. 

2. How Will Attainment of the 

Standards Be Measured? 

At the time of the NODA, EPA was 

evaluating several approaches for 
41618 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

measuring success in meeting 

performance standards. EPA therefore 

requested comments on whether 

performance should be measured based 

on an assessment of the impacts to all 

fish and shellfish species (‘‘all-species 

approach’’) or to fish and shellfish from 

only a subset of species determined to 

be representative of all the species that 

have the potential to be impinged or 

entrained (‘‘representative species 

approach’’). These comments are 

addressed under section 2. a below. 

Several terms to describe the 

representative species approach have 

been used historically. To avoid 

confusion among the terms 

‘‘representative indicator species,’’ 

‘‘representative important species,’’ and 

‘‘critical aquatic organisms,’’ EPA is 

adopting the term ‘‘representative 

species’’ for the purpose of simplicity in 

this section. EPA also requested 

comment as to whether enumeration of 

organisms or biomass should be used as 

the metric for measuring success in 

meeting the performance standards. 

These comments are addressed in 

section 2. b below. With regard to 

counting absolute numbers of 

organisms, EPA also requested comment 

on the option of counting 

undifferentiated organisms (i.e., 

counting without specifying taxonomic 

identification). 

After attempting to select optimal 

approaches for both the scope and 

metric to use in determining attainment 

of the performance standards, EPA has 

determined site-specific factors such as 

biological assemblage at the site, intake 

location, and waterbody type must be 

factored into decisions regarding how to 

evaluate attainment. EPA has therefore 

decided that, in its Verification 

Monitoring Plan (125.95(b)(7)), the 

facility must propose, among other 

things, the parameters to be monitored 

for determining attainment. The 

Director will be best suited to review 

and approve proposed parameters for 

each facility on a case-by-case basis. 

a. Scope of Evaluation: All-Species 

Consideration vs. Representative 

Species 

Several commenters supported the 

use of a representative species 

evaluation, as opposed to the all-species 

evaluation, as the most practical 

approach in many cases. Another 

commenter stated that even with the 

representative species approach, factors 

other than simply numeric reduction in 

impingement mortality and entrainment 

must be considered when determining 

attainment. On the other hand, one 

commenter stated that an ‘‘all species’’ 

approach could make compliance 

demonstrations simpler and somewhat 

less expensive so long as the taxonomic 

identity of collected organisms is not 

required. The commenter noted that this 

would not be appropriate, however, in 

cases where taxonomic identification is 

needed, such as where eggs and larval 

stages are converted to age-1 

equivalents. 

As part of the representative species 

inquiry, EPA also requested comment 

on whether 10 to 15 species might be an 

appropriate number of representative 

species to protect all species and 

ecosystem functions at a facility. One 

commenter responded, stating that 15 

was too large a number. This commenter 

suggested that a demonstration should 

focus on the four or five species and add 

to the list only if there was another 

species of special concern. 

In response to the commenter who 

suggested that EPA should evaluate 

factors other than reduction in numbers 

of organisms impinged or entrained, 

EPA has selected several means by 

which to determine compliance with 

section 316(b) requirements. For 

facilities that choose to demonstrate 

compliance with the performance 

standards, the metric that will be used 

to evaluate compliance with the 

performance standards is the facility’s 

reduction of impingement mortality and 

entrainment through the installation of 

design and control technologies and/or 

operational measures. For these 

facilities, compliance may then be 

measured against a facility’s calculation 

baseline, which the facility estimates 

and submits with its permit application 

package. The calculation baseline is 

defined at § 125.93. For facilities that 

choose to use compliance with the 

terms of a Technology Installation and 

Operation Plan or Restoration Plan to 

determine compliance, the degree of 

success in meeting performance 

standards is still an important criteria 

for determining if adaptive management 

is needed, but it would not be the basis 

for determining compliance. For 

facilities that choose to use restoration 

measures, attainment of performance 

standards will be based upon whether 

the production of fish and shellfish from 

the restoration measures is substantially 

similar to the level of fish and shellfish 

the facility would achieve by meeting 

the applicable impingement and/or 

entrainment requirements. If a facility 

has been approved for a site-specific 

determination of best technology 

available, the Director will establish 

alternate requirements accordingly. EPA 

expects that a variety of factors will be 

considered in determining the 

appropriate compliance option for a 

facility, such as waterbody type, intake 

location, percentage withdrawal of 

mean annual flow of rivers or streams, 

capacity to upset thermal stratification 

in lakes, a facility’s calculation baseline, 

and the appropriateness of existing or 

proposed protective technologies or 

measures. 

EPA agrees that a single approach 

may not be optimal in all cases. The 

Agency has therefore not prescribed the 

methods (including a metric) for 

assessing success in meeting 

performance standards in today’s final 

rule. Rather, the Director must 

determine whether a clearly defined allspecies approach or representative 

species approach is appropriate on a 

case-by case basis, based upon the 

information and proposed methods 

presented by the facility. The Director 

may choose to require evaluation of all 

species or of certain representative 

species. 

In response to comments regarding 

EPA’s suggested number of 

representative species, the facility will 

propose the number of species to 

monitor, as well as decisions regarding 

species and life stages to monitor, for 

review and approval by the Director as 

part of Verification Monitoring Plan 

(125.95(b)(7)), Technology Installation 

and Operation Plan (125.95(b)(4)(ii)), 

and, if applicable, the Restoration Plan 

required at 125.95(b)(5). As such, in 

cases where the representative species 

approach is applied, the Director may 

approve the number of representative 

species proposed by the facility, based 

upon the specifics of the waterbody 

from which the facility is withdrawing, 

the percentage volume of water 

withdrawn relative to the freshwater 

river or stream (as applicable), and other 

factors. 

b. Metric: Absolute Counts vs. Biomass 

EPA requested comment as to 

whether species impinged or entrained 

may be measured by counting the total 

number of individual fish and shellfish, 

or by weighing the total wet or dry 

biomass of the organisms. In response to 

the use of absolute counts of organisms 

or biomass (weight) for determining 

compliance, commenters offered a 

variety of views. Regarding the use of 

biomass as a metric, one commenter 

expressed that measuring either biomass 

or total undifferentiated numbers of 

species would be appropriate for cases 

where restoration was the chosen 

option, since restoration will never 

result in one-for-one species 

compensation. Several commenters 

pointed out a disadvantage of counting 

numbers of organisms: early life stages 

will dominate the numbers and thereby 

dominate the compliance 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41619 

determination, even though most of 

them would have suffered large natural 

mortality losses even without 

entrainment. To correct for this, a few 

commenters suggested identifying the 

organisms and converting them to an 

equivalent unit to ensure that each life 

stage is appropriately weighed. 

Specifically, one commenter suggested 

converting to equivalent juveniles, 

when measuring organisms by biomass, 

to correct for the fact that the count will 

be dominated by later larval stages even 

though the number of these organisms 

per unit weight will be small compared 

to eggs and larvae. This commenter 

continued that this approach would be 

useful for forage species, since biomass 

is an appropriate measure of the 

organisms that serve as a food source for 

commercial and recreational species. 

EPA received many comments 

regarding the need for flexibility in 

determining the appropriate metric to 

use to determine attainment of 

performance standards. Several 

commenters asserted that the rule 

should allow flexibility in the approach 

and the choice of metric should factor 

in whether one is assessing 

impingement mortality, entrainment or 

both; species and life stages affected, 

and compliance option. 

EPA has decided to give the Director 

the authority to review and approve 

methods of determining compliance 

proposed by the facility as part of the 

Verification Monitoring Plan. 

(125.95(b)(7)), Technology Installation 

and Operation Plan (125.95(b)(4)(ii)), 

and, if applicable, the Restoration Plan 

required at 125.95(b)(5). Thus, the 

facility will propose, and the Director 

will review and approve, species and 

life stages of concern. The Director may 

choose to require evaluation of all 

species or of certain indicator species; 

or the Director may elect to verify 

attainment of performance standards 

using biomass as a metric. EPA believes 

that as each situation will be somewhat 

unique, it should be left to the facility 

to propose and the Director approve the 

appropriate unit, biomass or actual 

counts. 

c. Other Means of Determining 

Attainment of Performance Standards 

Several commenters also suggested 

that EPA should allow for the use of 

existing data for measuring attainment 

in lieu of requiring existing facilities to 

collect and develop new data. 

Commenters also suggested that if a 

facility currently implements the best 

technology available to minimize 

adverse environmental impact, it should 

be found in compliance even if the 

newly promulgated performance 

standards are not being met. Other 

commenters expressed that a facility 

should be considered in compliance 

even during occurrences of unavoidable 

episodic impingement and entrainment 

events. These commenters stated that in 

such unusual circumstances, the facility 

should be provided with an exemption 

from any regulatory actions. 

EPA agrees with commenters that 

under certain circumstances, facilities’ 

historical data may be sufficient to 

verify that they are meeting performance 

standards, as long as the historical data 

is reflective of current operation of the 

facility and of current biological 

conditions at the site. For example, 

under compliance alternative 2, a 

facility may use historical data to 

demonstrate that existing design and 

construction technologies, operational 

or restoration measures, meet the 

performance standards. EPA also 

believes that some historical data may 

be appropriate for determining the 

calculation baseline and for 

characterizing the nature of 

impingement and entrainment at the 

site, and therefore has given the Director 

the discretion to determine whether 

historical data are applicable to current 

conditions (see 125.95(b)(1)(ii), 

125.95(b)(2)(i), and 125.95(b)(3)(iii)). In 

addition, a facility that proves, using 

existing data, that it has reduced its 

intake capacity commensurate with 

closed-cycle recirculating systems 

would be considered to be in 

compliance, and therefore would not be 

required to meet the performance 

standards for either impingement 

mortality or entrainment. 

After the first permit term, facilities 

may submit a request for reduced 

information collection activities to their 

Director. Facilities that are able to 

demonstrate that conditions at their 

facility and in the waterbody from 

which their facility withdraws surface 

water are substantially unchanged since 

their previous permit application will 

qualify for reduced requirements 

(§ 125.95(a)(3)). In all these cases, 

historical data are used and required to 

measure success in meeting 

performance standards. However, 

facilities required to submit a 

Verification Monitoring Plan must still 

submit verification monitoring data for 

at least two years following 

implementation of technologies and/or 

operational measures. 

Other commenters argued that a 

facility that is implementing permit 

conditions reflecting a historical 

determination of the best technology 

available should be considered in 

compliance with today’s final rule even 

if the facility is not meeting 

performance standards. EPA disagrees 

that a historical determination of the 

best technology available is appropriate 

for complying with the requirements set 

forth by today’s rule. Many historical 

determinations of the best technology 

available are less protective of aquatic 

organisms and ecosystems than the 

standards set by today’s rule, and would 

undermine the national performance 

standards that EPA has determined 

reflect the current best technology 

available for minimizing adverse 

environmental impact. Furthermore, 

biological, chemical and physical 

conditions at the facilities may have 

changed since the earlier determinations 

were made, and the best technology 

available determinations may no longer 

apply. Many of the historical best 

technology available determinations are 

twenty years old or older and may not 

correspond with current waterbody or 

operating conditions. 

The question whether a facility 

should be considered in compliance 

even during occurrences of unavoidable 

episodic impingement and entrainment 

events is left to the Director. At the 

Director’s discretion, facilities that are 

generally in compliance, but that 

experience an unusual peak of 

impingement mortality and/or 

entrainment, may be considered to still 

be in compliance on the basis of past 

good performance. Moreover, the 

inclusion of a compliance determination 

alternative based on a Technology 

Installation and Operations Plan in the 

final rule also addresses these episodic 

issues. 

d. Monitoring 

One commenter stated that 

monitoring frequencies should be 

established to address the inherent 

variability in the rates in impingement 

and entrainment over the seasons of the 

year. Monthly or biweekly monitoring is 

probably appropriate in many cases. 

The same commenter stated that 

standard statistical procedures could be 

followed to establish sample sizes 

needed to establish appropriate levels of 

precision in the estimates (e.g., 95% 

confidence intervals within 15–25% of 

the mean). In contrast, another 

commenter pointed out that weekly 

sampling would be necessary to 

determine compliance, as had been 

necessary for the Salem facility. Another 

commenter suggested that the most costeffective way of conducting studies 

would be over the periods of peak 

abundance. 

Some commenters stated that 

facilities should be allowed to cease 

monitoring following achievement of 

the performance standards. Some 
41620 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

suggested that facilities meeting 

performance standards through a 

closed-cycle cooling system should be 

exempt from monitoring. Another 

commenter disagreed with the two-year 

monitoring requirement altogether. 

EPA has determined that a uniform 

averaging period would not be 

appropriate; rather, the Director will be 

best suited to make all such 

determinations by evaluating these and 

other factors for each facility on a caseby-case basis. The Director will be able 

to make determinations regarding 

averaging periods based upon sitespecific factors, such as biological 

assemblage at the site, annual and diel 

fluctuations in concentration and 

populations present, and the selected 

compliance alternative. EPA disagrees 

that a facility should cease monitoring 

once performance standards are 

achieved, as site-specific conditions at 

any facility are bound to change with 

time, affecting a facility’s ability to 

achieve performance standards. EPA 

agrees that facilities meeting 

performance standards through flow 

reductions commensurate with closedcycle cooling should be exempt from 

monitoring (see § 125.94(a)(1)(i)). 

Finally, EPA believes that the two-year 

monitoring requirement is appropriate 

so that any site-specific variability in 

impingement and entrainment rates can 

be detected. 

e. Timing 

Some States favored flexibility in 

implementation including delaying the 

effective date for permits to be renewed 

soon after the rule is finalized. Some 

commenters suggested that the 

requirements of the rule must be timed 

so that facilities are not forced into a 

period of noncompliance because of the 

time needed to determine, design, and 

install new intake technology. 

One commenter expressed that 

implementation schedules are too strict. 

Along the same vein, another 

commenter suggested that EPA should 

build flexibility into the implementation 

schedule so that facilities are not forced 

into periods of noncompliance. 

Commenters generally wanted to see 

flexibility in the averaging periods (time 

increments for determining success in 

meeting the percent reduction or 

production specified by the 

performance standards and restoration 

requirements in § 125.94,) and a way to 

tailor the sampling schedules to the 

needs of the site. These commenters 

indicated that the monitoring should be 

frequent enough to provide useful 

information, but not so intensive as to 

make the program unnecessarily costly 

or time-consuming. Furthermore, 

several recommended that a compliance 

schedule be written into the permits, to 

allow facilities to install and test new 

equipment. Several commenters agreed 

that different facilities might require 

different amounts of time, as dictated by 

where they are in the cycle and what 

their circumstances are. 

EPA has provided for time to comply 

with permitting requirements. A facility 

whose permit expires more than four 

years after the date of publication of this 

final rule must submit the required 

information 180 days before the 

expiration of their permit. A facility 

whose permit expires within four years 

of the date of publication of this final 

rule may request that the Permit 

Director establish a schedule for 

submission of the permit application. 

Such submission should be as 

expeditiously as practicable, but no later 

than three and one-half years from the 

date of publication of this final rule. It 

is expected that the time that facilities 

need to comply with permitting 

requirements will be variable, ranging 

from one year for those not needing to 

do an impingement mortality and 

entrainment study to over three years 

for those needing to collect more than 

one years worth of impingement and 

entrainment data. 

EPA has also provided that facilities 

may opt to comply with the Technology 

Installation and Operations Plan 

compliance scheme that allows facilities 

who properly implement the 

Technology Installation and Operations 

Plan (or Restoration Plan, as applicable) 

to be considered in compliance with the 

requirements of § 125.94. As indicated 

above, the final rule provides the 

Director the flexibility to establish an 

appropriate averaging period to meet the 

particular situation present in the 

waterbody within which the facility is 

located. 

3. Entrainment Survival 

EPA invited comment on whether to 

allow Phase II existing facilities to 

incorporate estimates of entrainment 

survival when determining compliance 

with the applicable performance 

standards. Commenters responded with 

numerous comments regarding survival 

with respect to the performance 

standards as well as comments 

regarding EPA’s assumption of zero 

percent entrainment survival (100 

percent mortality) in the benefits 

assessment for today’s rule. 

Some commenters opposing the zero 

percent survival assumption argued that 

in the event a facility can demonstrate 

entrainment survival, it should be 

awarded credits towards meeting 

performance standards. EPA disagrees. 

Today’s final rule sets performance 

standards for reducing entrainment 

rather than reducing entrainment 

mortality. EPA chose this approach 

because EPA does not have sufficient 

data to establish performance standards 

based on entrainment survival for the 

technologies used as the basis for 

today’s rule. If EPA had incorporated 

entrainment survival into any of its 

conclusions regarding the appropriate 

performance standards, then the actual 

performance standard would most likely 

have been higher. 

Many commenters argued that in 

many cases organisms survive 

entrainment and the zero percent 

survival assumption was too 

conservative. Some commenters 

suggested that EPA was biased in its 

approach to entrainment survival. For 

example, one commenter stated that 

EPA was biased as a result of relying 

heavily on old entrainment survival 

literature. 

Based on its review of all entrainment 

survival studies available to the Agency, 

EPA believes that its assumption of zero 

percent survival in the benefits 

assessment is justified. The primary 

issue with regard to the studies EPA 

reviewed is whether the results can 

support a defensible estimate of survival 

substantially different from the value 

zero percent survival assumed by EPA. 

The review of the studies has shown 

that while organisms are alive in some 

of the discharge samples, the proportion 

of the organisms that are alive in the 

samples is highly variable and 

unpredictable on a national basis. In 

addition, some studies contain various 

sources of potential bias that may cause 

the estimated survival rates to be higher 

than the actual survival rates. For these 

reasons, EPA believes the current state 

of knowledge does not support reliable 

predictions of entrainment survival that 

would provide a defensible estimate for 

entrainment survival above zero at a 

national level. However, today’s final 

rule does allow facilities to use the 

results of a well-constructed, sitesspecific entrainment survival study, 

approved by the Director, in their 

benefits assessments when seeking sitespecific entrainment requirements. The 

permitting authority must review and 

accept the study before the results may 

be incorporated into the benefits 

assessments. In cases where there is 

uncertainty in the survival rates, 

permitting authorities may want to 

specify that benefits be presented as a 

range that reflects this uncertainty. 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41621 

4. Comprehensive Demonstration Study 

(CDS) 

a. Requirements and Burden 

The majority of commenters 

expressed two concerns regarding the 

CDS: (1) it was too burdensome and 

costly, and the volume of information 

required was too overwhelming, and (2) 

several components required 

clarification. These commenters 

generally suggested that the costs of 

such a study were underestimated, and 

many indicated that the cost estimates 

for completing the CDS contained 

misleading or incorrect information. 

Commenters indicated that the 

information required for completing the 

CDS was similar to the data that would 

be needed for implementing a purely 

site-specific approach and was therefore 

overly burdensome. Commenters 

suggested that EPA require a more 

simplified demonstration study or 

waive the requirement for facilities that 

select one of the approved technologies. 

Some commenters suggested, in general, 

that costs could be greatly reduced by 

streamlining this process, for example, 

by exempting facilities from certain 

components based on (1) facilities that 

have proven that they are not harming 

the aquatic community, and (2) facilities 

for which there exists relevant historical 

data. 

Several States anticipated that the 

majority of their facilities were likely to 

choose the site-specific compliance 

alternative, and indicated that a rule 

that requires cost/benefit analyses for 

many decisions would be difficult to 

administer and require significant 

resources to implement. They claimed 

that the site-specific performance 

standards compliance option would 

impose a substantial review burden and 

would require specialized expertise. 

Some States questioned whether 

existing permitting staff resources over 

the first 5 years will be sufficient to 

review material and develop permit 

requirements. 

Many commenters suggested that EPA 

could lower costs by streamlining the 

CDS, exempting facilities that are not 

causing adverse environmental impact 

or have historical data, and waiving the 

monitoring components for facilities 

that have installed approved 

technologies. 

EPA believes that many efficiencies 

have been added to the rule since the 

proposal and the NODA to address 

concerns that the CDS is too 

burdensome and costly. First, EPA has 

provided five compliance alternatives to 

choose from, one of which allows a 

facility to install an approved design 

and construction technology with 

minimal CDS requirements. In addition, 

facilities with design intake flow 

commensurate with closed-cycle 

recirculating systems are exempt 

entirely from the CDS; facilities may 

only have to submit partial CDS 

information if they have reduced their 

design intake velocity to less than or 

equal to 0.5 feet per second and are only 

required to meet requirements as they 

relate to reductions in entrainment. In 

addition, requiring an early submission 

of the Proposal for Information 

Collection allows the Director to 

potentially minimize the amount of 

information required by the facility. 

Also, by allowing the use of historical 

data, EPA has minimized costs for many 

facilities. In the cases where new 

studies are required, EPA has given the 

permittee and the Director discretion to 

set conditions for the studies which will 

not be overly burdensome. Facilities 

may also reduce costs incurred through 

the information collection process in 

subsequent permit terms by submitting, 

one year prior to expiration of the 

existing permit, a request for reduced 

permit application information based on 

conditions of their cooling water intake 

structure and waterbody remaining 

substantially unchanged since the 

previous permit issuance. 

One commenter expressed concern 

that historical data should not be 

allowed in the development of the CDS, 

as it may not accurately reflect current 

conditions. EPA believes that some 

historical data may be appropriate for 

determining the calculation baseline 

and for characterizing the nature of 

impingement and entrainment at the 

site, and therefore has given the Director 

the discretion to determine whether 

historical data are applicable to current 

conditions. EPA expects to provide 

guidance to Directors to help them make 

determinations about historical data 

submitted by facilities. Historical data 

will not be used to determine 

attainment of performance standards; 

this will be verified through a 

monitoring program approved by the 

Director. 

b. Timing of Submitting Information 

Commenters submitted a variety of 

opinions about timing. Generally, most 

favored limiting the submittal of CDS 

components to a frequency equal to or 

greater than once every five years (one 

permitting cycle) to reduce burden. 

Another commenter argued that there is 

no reason to mandate timing, and that 

approval of the Director should not be 

necessary. Other commenters suggested 

that a time frame is necessary, and that 

the information should be submitted 

with the renewal application for a 

NPDES permit. Numerous commenters 

asserted that consultation activities 

should occur prior to development of 

the Comprehensive Demonstration 

Study; that schedules and requirements 

should be specified in the permit for 

various data collection, analysis, and 

application submission activities; 

implementation schedules are too strict; 

and monitoring requirements need 

clarification. Yet another commenter 

suggested to ‘‘start the clock’’ with the 

issuance of the renewed permit. 

Commenters also indicated that 

anywhere from one year to several years 

might be necessary to verify success in 

meeting the performance standards. 

Several commenters suggested that 

given the nature of cooling water intake 

impacts and the proposed requirements, 

section 316(b) permit and BTA 

determinations should not be made 

every five years. Instead, they suggested 

that one-time determinations should 

suffice, or that facilities should be 

allowed to rely on previous section 

316(b) demonstrations if conditions 

remain essentially unchanged. There 

was also some general confusion as to 

when the rule would actually become 

effective. 

In response to the comment that EPA 

should not request submittal of CDS 

components more frequently than every 

five years or more, EPA has included a 

provision whereby a facility may be 

granted reduced CDS submittal 

requirements if it can prove that 

conditions at the facility and in the 

waterbody have not substantially 

changed. Facilities will be required to 

review whether conditions, such as 

biological, chemical or physical 

conditions, have substantially changed 

at each permit renewal cycle. If 

conditions have changed, facilities will 

be required to submit all of the relevant 

CDS components (those that would be 

affected by the changed conditions 

when they submit the application for 

permit renewal. 

One commenter stated that the CDS 

should be a one-time submittal. EPA 

disagrees that all components of the 

CDS should only be researched and 

submitted a single time for the lifetime 

of the facility, regardless of potential 

changes in the plant and/or waterbody, 

because the natural and anthropogenic 

changes that occur in waterbodies over 

time may affect a facility’s ability to 

meet performance standards using the 

current design and construction 

technologies, operational measures, 

and/or restoration measures in place. 

In response to comments that timing 

was not clear in previous versions of the 

rule, EPA agrees, and has clarified 

timing issues in today’s final rule. A 
41622 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

facility whose permit expires more than 

four years after the date of publication 

of this final rule must submit the 

required information 180 days before 

the expiration of their permit. A facility 

whose permit expires within four years 

of the date of publication of this final 

rule may request that the Permit 

Director establish a schedule for 

submission of the permit application, 

but that such submission should be as 

expeditiously as practicable, but no later 

than three and one-half years from the 

date of publication of this final rule. It 

is expected that the time that facilities 

need to comply with permitting 

requirements will be variable, ranging 

from one year for those not needing to 

do an impingement mortality and 

entrainment study to over three years 

for those needing to collect more than 

one years worth of impingement and 

entrainment data. 

Some commenters felt that decisions 

about the timing of the CDS submittal 

should be left to the Director. EPA 

agrees and has provided only that the 

proposal for information collection 

should be submitted prior to the start of 

information collection activities, but 

that the facility may initiate information 

collection prior to receiving comment 

from the Permit Director. All other 

components of the Comprehensive 

Demonstration Study must be submitted 

180 days prior to permit expiration 

except as noted above for the first, 

permit term following promulgation of 

the rule. 

5. State Programs 

Many States requested that existing 

State section 316(b) programs be 

allowed to be used to meet the 

requirements of Phase II. One 

commenter asserted that the Phase II 

rule should not overturn past State 

section 316(b) decisions at existing 

facilities that were made on a sitespecific basis and that examined the 

impacts of the cooling water intake 

structure in relation to the specific 

biological community. Several 

commenters stated that EPA did not 

sufficiently recognize the work already 

done by the States in implementing 

section 316(b). Several commenters do 

not believe that a State should have to 

demonstrate that its program is 

‘‘functionally equivalent’’ to today’s rule 

(i.e., that its alternative regulatory 

requirements achieve environmental 

performance within a watershed that is 

comparable to the reductions of 

impingement mortality and entrainment 

that would otherwise be achieved under 

§ 125.94). 

In response to comments about 

existing State section 316(b) programs, 

EPA believes that § 125.90(c) in today’s 

rule, by allowing alternative State 

programs, acknowledges the work 

already done by States. In response to 

the comment that a State should not 

have to prove that its program achieves 

environmental performance comparable 

to those that would be achieved under 

§ 125.94, EPA disagrees. While EPA is 

giving significant flexibility to 

permitting agencies at the State level to 

determine how and what each facility 

must protect and monitor, it believes it 

is important to set uniform national 

performance standards. 

F. Restoration 

In the proposed rule EPA requested 

comments on the use of restoration 

measures by facilities within scope of 

the rulemaking (67 FR 17146). EPA 

received diverse comments. Many 

commenters supported a role for 

restoration measures. Several 

commenters stated that allowing 

restoration provides additional 

flexibility to those who must comply 

with the section 316(b) requirements, 

and may provide a more cost-effective 

means of minimizing adverse 

environmental impact than operational 

measures or design and construction 

technologies. Other commenters stated 

that restoration is a well-accepted 

concept that should have a voluntary 

role in section 316(b) determinations 

and constitutes an appropriate means 

for reducing the potential for causing 

adverse environmental impact. Several 

commenters felt that restoration could 

provide significant benefits in addition 

to compensating for impingement and 

entrainment losses. A number of 

commenters requested flexibility in the 

implementation of restoration projects. 

Some commenters stated that 

restoration should not be limited to 

supplementing technology or 

operational measures, but should 

instead be allowed as a complete 

substitute for such measures. However, 

other commenters stated that restoration 

measures should only be used once 

every effort has been made to use 

technology to avoid impacts. 

Commenters further stated that 

restoration should not be mandatory 

and that EPA lacks authority under 

section 316(b) to require it, but also 

asserted that it should have an 

important role in section 316(b) 

permitting decisions. Commenters also 

stated that restoration should not be 

considered the best technology available 

for minimizing adverse environmental 

impact because it is not a technology 

that addresses the location, design, 

construction, or capacity of a cooling 

water intake structure. However, one 

commenter argued that past restoration 

measures should be considered during a 

regulator’s determination of whether or 

not adverse environmental impact is 

occurring from a cooling water intake 

structure. 

Other commenters felt restoration 

should have a limited role or no role in 

the context of section 316(b). One 

commenter wrote that restoration 

measures, in the context of section 

316(b), are generally unworkable and 

that the only measurable restoration 

method would be offsetting, in which an 

applicant stops use of an older intake 

facility that does more harm than the 

proposed one. One commenter stated 

that restoration methods must 

reproduce the ecological value of lost 

organisms and that they have not seen 

restoration projects adequately 

successful in this manner in their region 

of the country. Many commenters 

pointed out uncertainties associated 

with compensating for those organisms 

impacted by a cooling water intake 

structure through restoration. 

Some commenters suggested that, if 

restoration is allowed, there should be 

consultation with other State and 

Federal resource agencies to avoid 

inconsistent approaches and to provide 

useful information on the affected 

waterbody. 

Several commenters remarked on 

EPA’s proposal to include requirements 

for uncertainty analysis, adaptive 

management plans, and peer review in 

the final rule. Some commenters were in 

favor of the requirements and felt that 

they would enhance restoration measure 

certainty and performance. Some 

commenters were concerned that the 

requirements would be overly 

burdensome or would overly restrict the 

restoration measure options available to 

permit applicants. 

EPA has retained restoration in the 

final rule and believes that the 

restoration requirements strike an 

appropriate balance between the need 

for flexibility and the need to ensure 

that restoration measures achieve 

ecological results that are comparable to 

other technologies on which the 

performance standards are based. 

Facilities that propose to use restoration 

measures, in whole or in part, must 

demonstrate to the Director that they 

have evaluated the use of design and 

construction technologies and/or 

operational measures and found them to 

be less feasible, less cost-effective, or 

less environmentally desirable than 

meeting the applicable performance 

standards in whole or in part through 

the use of restoration measures. The 

requirement to look at design and 

construction technologies and/or 
Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 41623 

operational measures in order to ensure 

that facilities give due consideration to 

the technologies on which the 

performance standards are based. 

Facilities must also demonstrate that 

the use of restoration measures achieves 

performance levels that are substantially 

similar to those that would be achieved 

under the applicable performance 

standards. To address concerns 

regarding the uncertainty of restoration 

measures, EPA has included, among 

other things, requirements for 

uncertainty analysis, adaptive 

management plans, monitoring, and 

peer review, if requested by the 

Director. Finally, EPA does not believe 

the requirements for restoration 

measures are overly burdensome or 

prescriptive as there is a need to ensure 

that these types of measures achieve the 

anticipated environmental benefit. 

Moreover, under the rule, facilities are 

provided at least three and one-half 

years to submit their restoration plan 

and complete the required studies. 

G. Costs 

1. Facility-Level Costs 

Generally, commenters were split 

regarding the national costs of the rule. 

Industry commenters stated that the cost 

analysis presented in the proposal 

underestimated the compliance costs in 

several facets of the analysis, including 

capital costs of the technology, the sitespecific contingencies associated with 

retrofitting, and facility down time. 

Several commenters stated that EPA 

underestimated the costs for the 

monitoring requirements for both the 

characterization study in the permit 

application and for verification 

monitoring. Other commenters generally 

stated the opposite, arguing that EPA 

overestimated the compliance costs, 

especially for installing cooling towers. 

Some commenters stated that costs 

should not be a consideration in section 

316(b) determinations. 

The Agency significantly revised the 

approach to developing costs for the 

NODA. Those revisions incorporated 

some of the comments on the costing 

methodology for technologies that 

reduce impingement and entrainment. 

EPA’s approach to estimating the costs 

of the requirements of the final rule 

reflect the NODA comments on the 

revised methodology, and additional 

analyses. EPA, however, did not revise 

its estimates for cooling towers 

subsequent to the NODA because it 

decided not to further pursue this 

regulatory option for the reasons 

outlined more specifically in Section 

VII. EPA believes that our costing of 

cooling tower technology is appropriate 

as it is based on vendor and engineering 

firm experience in developing costs for 

Phase II facilities. 

2. Market-Level Impacts 

Numerous industry commenters 

stated that EPA significantly 

underestimated the impacts to 

generators, consumers, reliability, and 

energy supply. EPA disagrees with these 

commenters. EPA performed an analysis 

of facility- and market-level impacts 

(including impacts to generators, 

consumers, reliability, and energy 

supply) using the Integrated Planning 

Model (IPM), which has been widely 

used in air quality regulations and in 

other public policy arenas affecting the 

electric power generation industry. 

One commenter stated that the IPM 

analysis does not account for the 

economic impacts of other regulatory 

programs. EPA disagrees with this 

assertion. The IPM base case accounts 

for costs associated with current federal 

and state air quality requirements, 

including future implementation of SO2 

and NOX requirements of Title IV of the 

Clean Air Act and the NOX SIP call as 

implemented through a cap and trade 

program. Because of its relative 

newness, it does not account for costs 

associated with the Phase I facility 

regulations. 

One commenter stated that EPA 

justified the rule by using a cost-torevenue comparison and that this 

comparison neither measures 

profitability nor represents the most 

efficient economic solution for each 

facility. As discussed in Section VII. 

above, the economic practicability of the 

Phase II regulation is based on the 

electricity market model analyses using 

the IPM, not the cost-to-revenue ratio. 

The cost-to-revenue ratio is only one of 

several additional measures EPA used to 

assess the magnitude of compliance 

costs. 

Some commenters stated that EPA did 

not properly take account of differences 

between utilities, which own and 

operate rate-based facilities, and 

nonutilities, which own and operate 

competitive generating facilities. EPA 

disagrees with this comment. EPA 

believes that in a deregulated market, 

the distinction between utilities and 

nonutilities is no longer relevant. While 

such a distinction may have been 

important in the past, when only a few 

unregulated nonutilities competed with 

regulated utilities, this is no longer the 

case. The share of Phase II facilities that 

are owned by unregulated entities has 

increased from 2 percent in 1997 to 31 

percent in 2001. By the time the final 

rule will take effect, even more Phase II 

facilities that currently operate under a 

rate-based system will be operating in a 

competitive market. Furthermore, EPA 

does not believe that nonutilities will be 

differentially impacted compared to 

utilities, even in the case that 

deregulation might not have taken effect 

in all markets by the time this rule is 

implemented. Competitive pressures, 

even in regulated environments, will 

reduce the ability of utilities to pass on 

costs to their consumers. 

Some commenters stated that small or 

publicly owned facilities may be 

significantly affected. EPA disagrees 

with this statement. EPA’s SBREFA 

analysis showed that this rule will not 

lead to a significant economic impact on 

a substantial number of small entities 

(See Section XIII.C below). While 

municipally owned facilities bear a 

relatively larger compliance cost per 

MW of generating capacity than do 

facilities owned by other types of 

entities, EPA’s analyses show that these 

costs are not expected to lead to 

significant economic impacts for these 

facilities. 

Some commenters stated that even a 

requirement to convert all facilities to 

closed-cycle cooling would not 

significantly affect energy supply and 

that the costs to facilities and consumers 

is small and in some cases, overstated 

by EPA’s analysis. EPA disagrees with 

this statement. EPA considered several 

options that would require some or all 

facilities to install closed-cycle 

recirculating systems and rejected them 

on the basis of economic practicability 

and technological feasibility. See 

Section VII.B for more detail on why 

EPA rejected closed-cycle recirculating 

systems. 

H. Benefits 

In its analysis for section 316(b) Phase 

II Proposal, EPA relied on nine case 

studies to estimate the potential 

economic benefits of reduced 

impingement and entrainment. EPA 

extrapolated facility-specific estimates 

to other facilities located on the same 

waterbody type and summed the results 

for all waterbody types to obtain 

national estimates. During the comment 

period on the proposed rule EPA 

received numerous comments on the 

valuation approaches applied to 

evaluate the proposed rule, including 

commercial and recreational fishing 

benefits, non-use benefits, benefits to 

threatened and endangered species 

(T&E), as well as on the methods used 

to extrapolate case study results to the 

national level. EPA tried to address 

concerns raised by commenters on the 

proposal in the revised methodology 

presented in the NODA and the final 

rule analysis. 
41624 Federal Register / Vol. 69, No. 131 / Friday, July 9, 2004 / Rules and Regulations 

1. Benefits Analysis Design 

A number of commenters expressed 

concern about EPA’s reliance on a few 

case studies and the extrapolation 

method used for estimating benefits at 

the national level for the proposed rule 

analysis. The commenters noted that 

even within the same waterbody type, 

there are important ecological and 

socioeconomic differences among 

different regions of the country. To 

address this concern, EPA revised the 

design of its analysis to examine cooling 

water intake structure impacts at the 

regional-scale. The estimated benefits 

were then aggregated across all regions 

to yield the national benefits estimate. 

These analytical design changes were 

presented in the NODA. No major 

comments were received on EPA’s 

regional benefit approach as described 

in the NODA. 

2. Commercial Fishing Benefits 

During the comment period on the 

proposed rule EPA received a number of 

comments on the methods used to 

estimate producer surplus and 

consumer surplus in the commercial 

fishing sector. Commenters felt that the 

methods overestimated benefits. The 

new methods used by EPA assume that 

producer surplus is 0% to 40% of gross 

revenues in the commercial fishing 

sector. EPA also now assumes that the 

Phase II rule will not create increases in 

commercial harvest large enough to 

impact prices. Thus, no consumer 

surplus impact is estimated. 

Commenters on the NODA noted these 

changes and agreed with them. 

3. Recreational Fishing Benefits 

A number of comments were received 

on the recreational fishing benefits 

estimates EPA included in the proposal, 

which primarily relied on a benefits 

transfer approach. Benefit transfer 

involves adapting research conducted 

for another purpose in the available 

literature to address the policy 

questions in hand. For more detail on 

the valuation methods used in the final 

rule analysis, see Chapter A9 of the 

Regional Analysis document (DCN 6– 

0003). For three of the nine case studies, 

this analysis was supplemented by 

original revealed preference studies. 

Revealed preference methods use 

observed behavior to infer users’ value 

for environmental goods and services. 

Examples of revealed preference 

methods include travel cost, hedonic 

pricing, and random utility models 

(RUM). For more detail on the revealed 

preference methods used in the final 

rule analysis, see Chapters A9 and A11 

of the Regional Analysis document 

(DCN 6–0003). Although most 

commenters agreed that properly 

executed benefits transfer is an 

appropriate method for valuing 

nonmarket goods, they pointed out that 

original revealed preference studies that 

provide site-specific recreational fishing 

benefit estimates provide a superior 

alternative to benefits transfer. In 

response to these comments, EPA 

developed original or used available 

region-specific recreational angler 

behavior models, which provide sitespecific estimates of willingness-to-pay 

for improvements in recreational fishing 

opportunities, to estimate recreational 

fishing benefits from reduced 

impingement and entrainment for seven 

of the eight study regions. Chapter A11 

of the Regional Analysis document 

provides detailed discussion of the 

methodology used in EPA’s RUM 

analysis (DCN 6–0003). Due to data 

limitations, EPA used a benefit transfer 

approach to value recreation fishing 

benefits from reduced impingement and 

entrainment in the Inland region. 

4. Non-Use Benefits 

Numerous comments were received 

on EPA’s proposed non-use benefit 

estimates. Most commenters agreed that 

non-use values are difficult to estimate 

and that EPA’s estimates of non-use 

benefits using the 50% rule was 

inappropriate because it relies on 

outdated studies. Commenters, 

however, disagreed as to whether EPA 

had vastly overstated or underestimated 

non-use benefits in the proposed Phase 

II rule analysis. 

Some commenters stated that EPA’s 

approach to estimating non-use benefits 

of the proposed rule significantly 

overestimates total benefits and that 

ecological benefits of the section 316(b) 

regulation are negligible. Other 

commenters asserted that EPA’s benefits 

estimates significantly undervalued the 

total ecological benefits (including use 

and non-use) of preventing fish kills. 

These commenters indicated that it 

would be impossible to claim that the 

value of the unharvested commercial 

and recreational and forage species lost 

to impingement and entrainment was 

equal to zero. Reasons some 

commenters gave for the 

underestimation of total benefits 

included the following: total losses were 

underestimated by using outdated 

monitoring data for periods when 

population levels (and therefore 

impingement and entrainment) were 

much lower than the present; 

cumulative impacts were not 

sufficiently considered; recreational and 

commercial values were 

underestimated; commercial 

invertebrate species were ignored; 

ecological value of forage species was 

not considered; non-use benefits were 

underestimated; and secondary 

economic impacts were not included. 

Overall these commenters argued that a 

net benefit underestimation could be 

corrected by (1) assuming that non-use 

values were two times the estimated 

value of recreation, commercial and 

forage values; and (2) assuming that 

unharvested fish had a value greater 

than zero. 

In response to public comments 

regarding the analysis of non-use values 

in the proposed rule, EPA considered 

the results of several different 

approaches to quantifying non-use 

values. The Agency points out that none 

of the available methods for estimating 

either use or non-use values of 

ecological resources is perfectly 

accurate; all have shortcomings. 

EPA has determined that none of the 

methods it considered for assessing nonuse benefits provided results that were 

appropriate to include in this final rule, 

and has thus decided to rely on a 

qualitative discussion of non-use 

benefits. The uncertainties and 

methodological issues raised in the 

approaches considered could not be 

resolved in time for inclusion in the 

rule. EPA continues to evaluate various 

approaches for evaluating non-use 

benefits of CWA rules. 

5. Habitat Replacement Cost (HRC) 

Some commenters argued that the 

HRC methods are not legitimate 

valuation methods because they concern 

costs, not benefits. However, other 

commenters argued that although HRC 

analysis is not a benefit’s analysis in the 

strict economic sense it can provide a 

practical approach to capturing the full 

range of ecosystem services and, thus, is 

appropriate for evaluating the benefits 

of this rule. These commenters further 

pointed out that ‘‘restoration cost is 

used as a measure of damages under 

CERCLA for Superfund sites, under the 

National Marine Sanctuaries Act, and 

under the oil spill provisions of the 

Clean Water Act. Use of restoration 

costs was explicitly upheld in the 

landmark Ohio vs. Interior court 

decision of 1989.’’ 

EPA has removed the disputed results 

of the HRC analyses from its benefits 

estimates for the final rule. For the 

NODA, EPA revised the HRC analysis 

presented in the proposed rule (see 67 

FR 17191). Instead of the costs of habitat 

replacement, EPA used estimated 

willingness-to-pay values for the 

resource improvements that would be 

achieved by the habitat replacement/ 

restoration equivalents.