## CP- # 52 / Best Technology Ava ilable (BTA) for Cooling Water
Intake S tructures

New York State Department of Environmental Conservation 

## DEC Policy

Issuing Authority: Joe Martens, Commissioner

Date Issued: July 10, 2011 Latest Date Revised:

I. Summary:

This policy outlines the reductions in impinge ment mortality and entrainment required to minimize the adverse environmental impact caused by industrial facilities having a cooling water intake structure (CWIS) in conn ection with a point source therma l discharge. Water withdrawals from surface waterbodies through a CWIS cause injury and mortality to fish and shellfish through impingement at the intake and/or entrainment through the cooling system. Through this policy, the Department identifies closed-cycle c ooling or the equivalent as the performance goal for the best technology available (BTA) to mini mize adverse environmental impacts pursuant to Section 704.5 of 6 NYCRR and Section 316(b) of th e federal Clean Water Act in State Pollutant Discharge Elimination System (SPDES) permits issued by the Department in accordance with ECL Article 17, Title 8, and Part 750 of 6 NYCRR.

II. Applicability:

This policy applies to all existing and proposed industrial facilities designed to withdraw twenty (20) million gallons per day (MGD) or more of water from the waters of New York State, where at least twenty five (25) percent is used for contact or non-contact cooling, and that are subject to the requirements of Section 704.5 of 6 NYCRR. Existing and proposed industrial facilities subject to the require ments of 6 NYCRR § 704.5 that ar e designed to use less than 20 MGD of contact or non-contact cooling water or t hose with a higher design capacity that use less than twenty five (25) percent of water for coo ling purposes will continue to be subject to the requirements of 6 NYCRR § 704.5 and CWA § 316(b) or another s ubpart of 40 C.F.R. Part 125, as determined by the Department on a case-by-ca se, best professional judgment (BPJ) basis.

III. Policy:

This Policy was prepared in furtherance of the powers and duties of the Commissioner and the Department of Environmental Conser vation, pursuant to ECL Articles 1, 3, and 11 et

seq. to conserve and protect the natural resources of the state and to minimize adverse impacts to the environment. In addition, it seeks to clarify the Department’s Best Technology Available (BTA) review process and to provide certainty to Department staff’s ongoing implementation of 6 NYCRR Part 704.5 regarding requirements applicable to CWIS.

The following performance goals are identified for selection of BTA to minimize adverse environmental impact from a CWIS:

CP - 52 Page 11. Dry closed-cycle cooling as the performan ce goal for all new industrial facilities sited in the marine and coastal district (ECL § 13-0103) and along the Hudson River up to the Federal Dam in Troy;

2. Wet closed-cycle cooling as the minimu m performance goal for all new industrial facilities located along all waters ot her than those covered by 1 above;

3. Wet closed-cycle cooling or its equivalent as the performance goal for existing
industrial facilities that operate a CWIS in connecti on with a point source thermal discharge; and

4. Wet closed-cycle cooling as the performance goal for all re powered industrial facilities that operate a CWIS in connection w ith a point source thermal discharge.

Facilities for which a BTA determination has been issued prior to the effective date of this policy and which are in compliance with an existing compliance schedule of BTA implementation and verification monitoring will not be subject to new require ments as a result of this policy unless/until the results of verificatio n monitoring demonstrate the necessity of more stringent BTA requirements. A full technical re view will be conducted when a permit renewal or modification application is submitted following th e completion of the verification monitoring

program.

Facility owners and/or permitt ees of existing indus trial facilities se eking to meet the equivalent performance goal set by this polic y shall propose a suite of technologies and operational measures to the Department for c onsideration as BTA. Operational measures proposed by the facility owner ma y include but not be limited to: (1) reductions in cooling water capacity, (2) fish protective outages, and (3) reducing cooling water capacity use.

Definitions:

Adverse environmental impact – the fish and shellfish killed or injured through entrainment and impingement by the operation of cooli ng water intake structures. The “adverse environmental impact” that must be minimized by the BTA standard of 6 NYCRR §704.5 relates only to aquatic resources.

Available – technologies and operational measures th at are technically and administratively feasible for a particular facility, consistent wi th other applicable regul ations and public health and safety considerations, with costs not wholly disproportionate to the benefits.

Best Technology Available (BTA) – technology based standard established under CWA Section 316(b), 40 C.F.R. Part 125, subpart I; 40 C.F.R. Part 125.90(b); and 40 C.F.R. Part 125, subpart N and 6 NYCRR Part 704.5 as the most effective technology, pr ocess or operational method for minimizing adverse environmental impact from a CWIS.

Calculation baseline – an estimate of impingement mortality and entrainment that would occur at a facility CWIS assuming tha t: the cooling water system has been designed as a once-through system; the opening of the cooling water intake structure is located at, and the face of the standard 3/8-inch mesh conventional traveling scr een is oriented parallel to, the shoreline near

CP - 52 Page 2the surface of the source water body and is operated at the full rated capacity 24 hou rs a day, 365 days a year. This is the baseline of adverse environmental impact to be used in estimating reductions in impingement mortal ity and entrainment resulting from operating a closed-cycle cooling system.

Cooling water - the water used for contact or non-c ontact cooling, including water used for equipment cooling, evaporative cooling tower make up, and dilution of effluent heat content. The intended use of the cooling water is to absorb wa ste heat rejected from the process or processes used, or from auxiliary operations on the facility's premises [6 NYCRR § 700.1(a)(11)].

Cooling water intake structure (CWIS) - the total physical stru cture and any associated constructed waterways used to withdraw cooling water from wa ters of New York State. The cooling water intake structure extends from th e point at which water is withdrawn from the waters of the State up to, and including the intake pum ps [6 NYCRR § 700.1(a)(12)].

Dry closed-cycle cooling - cooling system that uses air fl ow, rather than the evaporation of water, to remove heat from the power station in order to reduce or eliminate the consumptive use
of surface waters.

Entrainment – the incorporation of all life stages of fi sh with intake water flow entering and passing through a cooling water in take structure and into a cooling water system. The Department assumes that entrainment results in 100 percent mortality of the entrained organisms unless a lesser mortality is demonstrated to Department staff based on site-specific studies.

Equivalent – reductions in impingement mortality a nd entrainment from calculation baseline that are 90 percent or greater of that which would be achieved by a wet closed-cycle cooling
system.

Feasible – capable of being done; able to be inst alled and function efficiently within the operating constraints of the facility.

Impingement mortality – the death of all life stages of fish as a result of be ing entrapped on the outer part of a cooling water intake structure or against a screening de vice during periods of
water withdrawal.

Industrial facilities –includes all facilities listed in CWA § 306(b)(1)(A) and al l other facilities that have a cooling water intake structure in connection with a point source thermal discharge.

Minimize - reduce to the smallest amount, ex tent or degree reasonably possible.

Once-through cooling water system - a system designed to withdraw water from a natural or other water source, use it at th e facility to support contact a nd/or noncontact cooling uses, and then discharge it to a wate rbody without recirculation.

Shellfish – for the purposes of this policy, this includes the horseshoe crab ( Limulus polyphemus ) and members of the Class Decapoda [lobster ( Homarus americanus ), crayfish, crabs, and shrimp].

Wet closed-cycle cooling – a system designed to withdraw the smallest amount of water to support contact and/or non-contact cooling uses w ithin a facility. A closed-cycle cooling system uses between 93 and 98 percent less water than a once-through cooling system. The water is usually sent to a cooling canal, channel, pond, or to wer to allow waste heat to be dissipated to the atmosphere and then is returned to the system. New source water (makeup water) is added to the

CP - 52 Page 3system to replenish losses that have occurred due to cooling tower blow-down, drift, and evaporation.

Wholly disproportionate test – is neither a traditional cost-benefit analysis nor an economic analysis but simply a comparison of the proporti onal reduction in impact (benefit) as compared to the proportional reduction in revenue (cos t) of installing and ope rating BTA technology to mitigate adverse environmental impact. This comparison does not monetize the resource and gives presumptive weight to the value of the environmental benefits to be gained.

IV. Purpose and Background:

State regulations and federal laws mandate that industrial facilities employ BTA to minimize adverse environmental impact when proposing a new or operating an existing CWIS. The purpose of this policy is to identify the goals of the Department in implementing this
standard and to ensure consistent application of those goals to i ndustrial facilities in New York State. In addition, this Policy outlines Department staff’s ongoing review process and procedures for decision-making.

Throughout New York, over 16 bill ion gallons of water are w ithdrawn from state waters through a CWIS system each day for the pur pose of industrial cooling. The adverse environmental impact of these CWIS systems resu lts in over 17 billion fish of all life stages (eggs, larvae, juveniles and adults) being entr ained or impinged annually. The fish can suffer from lethally high water temperatures, contact w ith screens, impellers or heat-exchangers, or from exposure to the chemicals used to mainta in heat-exchanger clean liness. Steam electric power plants account for the majori ty, though not all, of this environmental impact with some of these power plants using well ove r a billion gallons of water ev ery day for cooling purposes.

Establishing Closed-Cycle Cooling or th e Equivalent as the Performance Goal:

One of the most efficient and effective ways to minimize or eliminate the number of and mortality to aquatic organisms im pinged and entrained during indus trial cooling is to minimize or eliminate the use of once-through, non-contact cooling water from the surface waters of New York. The demonstrated technology that achieve s the greatest reduction in non-contact cooling water use is closed-cycle cooling. Under the U.S. EPA CWA 316(b) Phase I Rule (40 C.F.R. Part 125, subpart I), wet closed-cycle cooling was iden tified as the best technology available for new facilities to minimize impingement and entrainm ent and New York has already required closedcycle cooling technology to be employed on new f acilities and for electric generating facilities being repowered 1 . Given the effectiveness of closed -cycle cooling at reducing adverse environmental impact caused by a CWIS, the biological significance of New York’s surface waterbodies and their importance for commercial and recreational uses, particularly in the

1 See Matter of Athens Generating Co., LP, Interim Decision of the Commissioner, June 2, 2000 [2000 WL 33341184 (N.Y.Dept.Env.Conserv.)]. Citizens for the Hudson Valley v. New York State Bd. on Electric Generation Siting and the Environment, 281 AD2d 89 (3d Dept. 2001). Matter of Mirant Bowline, LLC, Decision of the Commissioner, March 19, 2002 [2002 WL 444950 (N.Y.Dept.Env. Conserv.)]. Matter of Bethlehem Energy Center, Interim Decision of the Commissioner, Jan. 31, 2002 [Siting Board Decision Feb. 2002].

CP - 52 Page 4marine and coastal district, the tidal reach of the Hudson River and the Great Lakes, this policy establishes closed-cycle cooli ng as the performance goal for a ll new and repowered industrial facilities in New York. The perfor mance goal for all exis ting industrial faciliti es in New York is closed-cycle cooling or the equivalent.

Exemption from the Entrainment Performance Goal

An existing electric generating facility operate d at less than fifteen (15) percent of its electric generating capacity over a current 5-y ear averaging period will be subject to the impingement mortality reduction performance goals of this policy and may be exempt from meeting the entrainment performance goal of this policy provided that the facility is operated in a manner that minimizes the potential for entrainment. For these facilities, site-specific performance goals for entrainment will be determined by the Department on a on a case-by-case,
BPJ basis.

V. Responsibility:

The Division of Fish, Wildlife and Marine Resources has the primary responsibility to
ensure that BTA determinations are made cons istent with this Policy. Additionally, the
Divisions of Water and Environmental Permits en sure that the requirements of this policy are reflected in all final SPDES perm its issued to industrial facilities that operate or propose to operate a CWIS in connection with a point s ource thermal discharge. Specific Division responsibilities are as follows:

Division of Environmental Permits (Permits) - As the Project Manager, Permits staff
coordinate the BTA determination with the development of the SPDES permit
modification. Permits staff also ensure compliance with 6 NYCRR Part 621 (Uniform Procedures) and 6 NYCRR Part 617 (State Environmental Quality Review). This includes preparation of all re quired public notices and coordi nation with ot her state and federal agencies, including but not limited to the New York State Department of Public Service and the New York Independent Syst ems Operator (NYISO). Permits staff are also the primary contact for the public expressing interest in a SPDES modification. In addition, Permits staff oversee the permit pr ocess with respect to compliance with Uniform Procedures Act (UPA) and State E nvironmental Quality Review Act (SEQRA) requirements. With respect to non-BTA land use and other environmental impacts, Permits staff seek other agency or outside expertise as needed.

Division of Fish, Wildlife and Marine Resources (DFWMR) - DFWMR staff conduct the biological assessment of the facility CWIS a nd take the lead role in making the BTA determination with respect to aquatic resource impacts. In addition, DFWMR staff identify natural resource impacts a ssociated with BTA compliance.

Division of Water (DOW) - DOW Staff assess the potential for water quality impacts that may result from construction and implementa tion of BTA technolog ies and incorporate the final BTA determination into the SPDES permit.

CP - 52 Page 5VI. Procedure:

Implementation of this Policy:

This policy will be implemented when: (i) an applicant seeks a new SPDES permit; (ii) a permittee seeks to renew an existing SPDES permit; or (iii) a SPDES permit is modified either by the Department or by the permittee, for a facili ty that operates a CWIS in connection with a point source thermal discharge pursuant to 6 NYCRR § 704.5; 40 CFR Part 125, subpart I and subpart N; and 40 CFR Part 125.90( b). In addition, when issuing SPDES permits for industrial facilities using a CWIS, staff are guided by th e applicable SPDES re gulations, including 6 NYCRR 750-1.11 “Application of Standards, Li mitations and Other Requirements.” These regulations require that both federal minimum requirements and State wa ter quality requirements are met, and that other impacts are evaluated and mitigated as required by applicable law and regulations.

DFWMR staff will develop permit conditions for BTA compliance on a site-specific, case by case basis in accordance with this Policy and 6 NYCRR Part 704.5, a nd Section 316(b) of the federal Clean Water Act ( see Matter of Athens Generating Co., L.P., Interim Decision of the Commissioner, June 2, 2000).

Once a site-specific BTA determination is made by DFWMR staff, the Department will undertake a SEQRA review to ensure that a ny significant impacts associated with the construction and operation of the selected BTA are avoided, minimized, or mitigated.

Cost Considerations in Making S ite Specific BTA Determinations

After selecting the best tec hnology available for an industr ial facility, the Department will consider the cost of the feasible technologies and will determine whether or not the costs of the technologies are wholly dispropo rtionate to the environmental benefits to be gained from the technology. The Department will not undertake a formal cost-benefit analysis whereby the
environmental benefits would be monetized. Such an analysis is neither de sirable nor required by
law. See Entergy Corp v Riverkeeper, Inc., et al., 556 U.S. __, 129 S.Ct. 1498 (2009). For each site-specific BTA determination, the Department will select a feasible technology whose costs are not wholly disproporti onate to the environmental benefits to be gained.

Nuclear-Fueled Power Plants

If the owner or operator of a new or existing nuclear-fueled power plant demonstrates to Department staff that compliance with the perf ormance goals of this Policy would result in a conflict with any safety requirement establis hed by the Nuclear Regul atory Commission (NRC), with appropriate documentation or other substant iation from the NRC, the Department will make a site-specific determination of best technology available for minimizing adverse environmental impact that would not result in a conflic t with the NRC’s safety requirements.

CP - 52 Page 6Failure to Meet the Entrainment Performance Goal of this Policy

The performance goal for existing industrial facilities in New York is closed-cycle cooling or the equivalent. Department staff believe that the majority of facilities that install and properly operate and maintain a pproved closed-cycle-equ ivalent technologies should be capable of meeting the performance goals established in this policy. This is based on multiple years of experience in assessing BTA for f acilities in New York State, on continued review of research and studies associated with performance of BTA technologies, and on participation in the national rulemaking effort associat ed with CWA Section 316(b). Howe ver, for facilities that fail to meet the entrainment performance goal thro ugh the use of technologies other than closedcycle cooling, the Department may initiate a modifi cation to a facility’s SPDES permit to require additional mitigative measures to meet the entr ainment performance goal, or if appropriate, propose a BTA determination with site-specific entrainment reduction requirements if no other available mitigative alternative remains.

VII. Related References:

California Environmental Resources Control Board. 2010. Water quality control policy on the
use of coastal and es tuarine waters for power plant cooling. State Water Resources Control board Resolution No. 2010-0020. May 4, 2010. 6pp.

California Environmental Resources Contro l Board. 2008. Scoping Docu ment: Water quality control policy on the use of coastal and estu arine waters for power plant cooling. State Water Resources Board. March 2008. 91pp.

Clean Water Act, 33 U.S.C. §§ 1251 – 1387

Clean Water Act §§ 306, 316(b)

Environmental Protection Agency. 1977. Permits Di vision, Office of Waste Enforcement, EPA, Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b), PL 92-500 (Draft 1977).

Entergy Corp. v Riverkeeper, Inc., et al., 556 U.S. __, 129 S.Ct. 1498 (2009).

Entergy Nuclear Indian Point 2, LLC, et al. v. New York State Dept. of Envtl. Conservation, 23 AD3d 811 (3d Dept. 2005), leave to appeal dismissed in part, denied in part 6 NY3d 802 (2006).

Hudson Riverkeeper Fund, Inc. v. Orange and Rockland Utilities, Inc., 835 F.Supp. 160 (S.D.N.Y. 1993)

Maulbetsch, John S., and Michael N. DiFilippo. 2008. Performance, Cost, and Environmental Effects of Saltwater Cooling Towers. California Energy Commission, PIER Energy

‐ Related Environmental Research Program. CEC

‐ 500

‐ 2008

‐ 043.

Matter of Dynegy Northeast Generation, In c., on behalf of Dynegy Danskammer, LLC, Decision of the Deputy Commissione r, May 24, 2006 [2006 WL 1488863 (N.Y.Dept.Env.Conserv.)]; Riverkeeper, Inc. v Johnson , 52 AD3d 1072 (3d Dept. 2008), appeal denied 11 NY3d 716 (2009).

CP - 52 Page 7CP - 52 Page 8 Matter of Athens Generating Co., LP, Interim Decision of the Co mmissioner, June 2, 2000 [2000 WL 33341184 (N.Y.Dept.Env.Conserv.)], Citizens for the Hudson Valley v. New York
State Bd. on Electric Generati on Siting and the Environment, 281 AD2d 89 (3d Dept. 2001).

Matter of Mirant Bowline, LLC, Decision of the Commissione r, March 19, 2002 [2002 WL 444950 (N.Y.Dept.Env. Conserv.)].

Matter of Bethlehem Energy Center, Interim Decision of the Commissioner, Jan. 31, 2002 [Siting Board Decision Feb. 2002].

Matter of Besicorp-Emp ire Development Co., LLC, Decision of the Commissioner, Sept. 23, 2004 [Siting Board Decision Sept. 2004].

Matter of Public Service C o. of New Hampshire, et al. (Seabrook Station, Units 1 and 2 - National Pollutant Discharge Elimina tion System), June 10, 1977 [1977 WL 22370 (E.P.A.), 1 E.A.D. 332].

National Pollutant Discharge Elimination System : Regulations Addressing Cooling Water Intake
Structures for New Facilitie s; Final Rule, 66 Fed.Reg. 65,255 (Dec. 18, 2001) (codified at 40 C.F.R. pts. 9, 122-25 [Phase I Rule].

National Pollutant Discharge Elimination System : Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities; Final Rule, 69 Fed.Reg. 41,576 (July 9, 2004) (codified at 40 C.F.R. pts. 9, 122-25) [Phase II Rule].

NERC (2008). Electric reliability impacts of a mandatory cooling tower rule for existing steam generating units, U.S. Department of Ener gy/North American Electric Reliability Corporation : 46 pp.

Riverkeeper I: Riverkeeper, Inc. et al. v U.S. EPA , 358 F.3d 174 (2d Cir. 2004) Riverkeeper II: Riverkeeper, Inc. et al. v U.S. EPA , 475 F.3d 83 (2d Cir. 2007).

Stark letter (2005) 24 January 2005 letter to EPA B. Grumbles from Deputy Commissioner L.
Stark.

Tetra Tech, Inc. 2008. California’s coastal power plants: alternative coo ling system analysis. Final report to the California Ocean Protection Council. February 2008.

Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 700, 704 and 750.

40 C.F.R. Part 125 - Criteria and Standards for the National Pollutant Discharge Elimination System (NPDES) permits.