Memorandum 

TO: 316b Existing Facility Rule Docket 

..---, 

FROM: Mary T. Smith. Directk:--r I r I ,/ 

Engineering and An1l¥f Di ~ 7/1/1/ 

SUBJECT: Meeting on June 28, 2011 with Clean Energy Group Regarding BTA 

Impingement Framework 

Attendees at Meeting: 

• Melissa Lavinson, PG&E 

• Michael Bradley, Clean Energy Group 

• Mark Strickland, PSEG 

• Ray Butts, NextEra Energy 

• Carla Logan, Constellation Energy 

• John Quinn, Constellation Energy 

• Carrie Jenks, Clean Energy Group 

• Amy Trojecki, Exelon 

• Steve Newbold, EPA OP 

• Paul Balserak, EPA OP 

• Alex Barron, EPA OP 

• Nancy Stoner, EPA OW 

• Michael Goo, EPA OP 

• Bob Sussman, EPA OA 

• Mary Smith, EPA OW 

Representatives of the Clean Energy Group discussed with EPA their draft proposal 

"BTA Framework to Replace EPA's Proposed Impingement Mortality Standard 

under Sec. 316(b)" (attached). EPA asked a number of clarifying questions such as 

1. Preapproved BTA - is the minimal intake flow o.s feet/sec? Likely 

something higher. 

2. Mitigation measures - what about the 2nd Circuit opinion that prohibits 

restoration? These would mitigate amount of I and E that would need to be 

minimized by technology. 

3. Deminimus - what's covered? Facilities used part of the year; facilities that 

impinge few fish. 

4. When would guidance be issued? Probably not enough time to do this before 

final rule so probably after July 2012. 

Feedback from EPA: Good start but needs more specificity. What is minimal intake 

flow? What is "comparable BTA?" 

Parties agreed to get together again when there is more specificity, and perhaps a 

discussion with EPA's technical staff before the next meeting would be helpful. 
BTA Framework to Replace EPA's Proposed Impingement Mortality Standard under Sec. 316(b)1 

The following provisions set forth a framework for complying with the impingement mortality standards under 

316{b) of the Clean Water Act. The framework was developed based on concerns that a one-size-fits-all 

approach for impingement mortality, as proposed by EPA, could not be developed and applied appropriately to 

recognize the site specific factors that affect impingement mortality. This framework was refined based on 

meetings with EPA staff. Companies will also be providing individual specific comments to the Agency on the 

EPA's proposed rule under 316{b), but the framework for impingement mortality outlined below is designed so 

that all affected facilities are required to comply with impingement standards through the installation of best 

technology available (BTA). This BTA framework, including each element listed below, will ensure that the rule 

results in a significant national reduction in impingement with important environmental and ecological benefits 

throughout the U.S. This framework is consistent with approaches previously used by the Agency and upheld by 

courts. 

1) EPA should require facilities to install BTA technology, which should include one of the following: 

a. Preapproved BTA: 

i. advanced screens with fish return systems; or 

ii. a specific minimal intake flow (measured fps). 

b. Comparable BTA measures to minimize adverse environmental impacts (AEI) associated with 

impingement as appropriate based on site specific considerations and as determined by the 

permitting director, including: 

i. The use of offshore velocity caps; 

ii. Sound and light diversion technology; 

iii. Wedgewire screens; or 

iv. Other appropriate BTA technology(ies) or mitigation measure(s) based on site specific 

factors, as determined by the permitting director, including cost benefit analyses, taking into 

account measures already implemented to reduce AEI, including mitigation (e.g., 

restoration) measures, and consistent with any EPA guidance to ensure similar or greater 

benefits. 

2) Verification and Monitoring. Each facility should be required to demonstrate the installed BTA technology 

is operating consistent with best management practices. Each permit review will also require the permitting 

director to confirm the technology installed is BTA and operated appropriately to ensure maximum benefit. 

3) Shellfish Impingement Mortality Protection. If the permitting director determines that a plant located on 

ocean or tidal waters is not minimizing AEI to shellfish, then the permitting director should require 

additional measures, as necessary, to reduce impingement mortality of shellfish based on cost benefit 

analysis. Facilities could be obligated to install barrier nets, or their equivalent, as proposed by EPA unless 

the facility demonstrates to the permitting director that site specific considerations prevent a barrier net or 

t Each company will provide individual comments on the complete 316(b) proposal by EPA, but this framework is proposed 

by Constellation Energy, Exelon Corporation, NextEra Energy, PG&E Corporation, and Public Service Enterprise Group, Inc. 

as a framework for discussion with EPA for the impingement mortality requirements. The companies are offering this 

framework as a complete proposal and would not necessarily support a proposal including only some of the elements of 

this framework. 
its equivalent from being installed effectively, in which case the permitting director can require alternative 

measures, or make a determination that additional measures are not required to protect shellfish. 

a. For example, an intake structure located in a harbor may not be able to install a barrier net or 

equivalent technology due to ship traffic. In such cases, the permitting director must have the 

authority to approve alternative technologies or operational practices that are technically feasible at 

such a location to minimize environmental impact. A case example is NextEra's Riviera Plant in 

Riviera Beach, Florida. A barrier net would interfere with port traffic in the Port of Palm Beach. 

4) Closed Cycle Cooling. Systems that have already installed closed cycle cooling (including cooling towers and 

cooling ponds that are not determined to be waters of the U.S.), would be deemed to be in compliance with 

BTA for impingement and entrainment and should not be required to install any further requirements under 

316(b). 

S) EPA Guidance for Comparable BTA. EPA should develop guidance for states based on a few (5 to 10) 

example facilities to illustrate the expected performance for specific BTA and comparable BTA technologies 

at specific sites. These examples should be based on a robust data set and reflect different situations that 

will affect impingement such as different water bodies, fragile species, facility sizes, and seasonal dynamics. 

The expected performance should be based on both fish mortality and biomass and account for actions that 

prevent fish impingement. 

This guidance would facilitate permitting authorities' assessment of alternatives to the preapproved BTA 

technologies. It would not establish a national stan'dard that would be applicable to all facilities. The 

guidance should also note that states should use a cost benefit analysis when evaluating BTA for a fa cility if 

the facility is installing a comparable technology. 

6) Oe Minimis. EPA should provide permitting authorities the criteria to develop de minimis exemptions for 

plants with extremely low impingement levels and/or mortality rates based on site specific factors (e.g., flow 

or biomass impingement) and cost benefit analyses. De minimis exemptions could be based on the 

following elements, and faci lities meeting one of these exceptions would satisfy a faci lity's obl igations for 

the impingement mortality standard: 

a. actual intake flow versus design intake flow; 

b. a numeric impingement level (annual lbs or Ibs per million gallons withdrawn); or 

c. operating characteristics. 

7) Species of Concern. As proposed by EPA, in determining BTA or comparable BTA, including any mitigation 

measures, the permitting director should have the authority to analyze species of concern at the particular 

facility's water body rather than require BTA based on the impingement mortality of all species. 

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