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ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 122, 123, 124, and 125 

[EPA-HQ-OW-2008-0667, FRL – XXXX] 

RIN 2040–AE95

National Pollutant Discharge Elimination System — Proposed Regulations to 

Establish Requirements for Cooling Water Intake Structures at Existing Facilities 

and Amend Requirements at Phase I Facilities 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Today’s proposed rule would establish requirements under section 316(b) 

of the Clean Water Act (CWA) for all existing power generating facilities and existing 

manufacturing and industrial facilities that withdraw more than 2 million gallons per day 

(MGD) of water from waters of the U.S. and use at least twenty-five (25) percent of the 

water they withdraw exclusively for cooling purposes. The proposed national 

requirements, which would be implemented through National Pollutant Discharge 

Elimination System (NPDES) permits, would establish national requirements applicable 

to the location, design, construction, and capacity of cooling water intake structures at 

these facilities by setting requirements that reflect the best technology available (BTA) 

for minimizing adverse environmental impact. The proposed rule constitutes EPA’s 

response to the remand of the Phase II existing facility rule and the remand of the existing 

facilities portion of the Phase III rule. In addition, EPA is today also responding to the 

decision in Riverkeeper I and proposing to remove from the Phase I new facility rule the 

restoration-based compliance alternative and the associated monitoring and 

demonstration requirements. EPA expects this proposed regulation would minimize 

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adverse environmental impacts, including substantially reducing the harmful effects of 

impingement and entrainment. As a result, the Agency anticipates this proposed rule 

would help protect ecosystems affected by cooling water intake structures, and preserve 

aquatic organisms, and the ecosystems they inhabit in waters used by cooling water 

intake structures at existing facilities.

 An owner or operator of an existing facility may choose one of two options for 

meeting best technology available requirements for impingement mortality under this 

proposed rule. The owner or operator may monitor to show the specified performance 

standards for impingement mortality of fish and shellfish have been met, or they may 

demonstrate to the Director that the intake velocity meets the specified design criteria. 

For entrainment mortality, this proposed rule establishes requirements for studies and 

information as part of the permit application, and then establishes a process by which the 

best technology available for entrainment mortality would be implemented at each 

facility. New units constructed at an existing facility would be required to comply with 

provisions for impingement and entrainment mortality based on closed-cycle that are 

similar to those required in the Phase I new facility rule. 

DATES: Comments must be received on or before [INSERT DATE], 90 days after 

publication in the Federal Register. 

ADDRESSES: Submit your comments, identified by Docket No. EPA-HQ-OW-2008-

0667 by one of the following methods: 

• http:www.regulations.gov: Follow the on-line instructions for submitting 

comments. 

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• E-mail: OW–Docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2008-

0667. 

• Mail: Water Docket, U.S. Environmental Protection Agency, Mail Code: 4203M, 

1200 Pennsylvania Ave., NW., Washington, DC 20460. Attention Docket ID No. 

EPA-HQ-OW-2008-0667. Please include a total of 3 copies. In addition, please 

mail a copy of your comments on information collection provisions to the Office 

of Information and Regulatory Affairs, Office of Management and Budget 

(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. 

• Hand Delivery: Water Docket, EPA Docket Center, EPA West Building Room 

3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. 

EPA-HQ-OW-2008-0667. Such deliveries are only accepted during the Docket’s 

normal hours of operation, and special arrangements should be made for 

deliveries of boxed information by calling 202–566–2426. 

Instructions: Direct your comments to Docket No. EPA-HQ-OW-2008-0667. EPA’s 

policy is that all comments received will be included in the public docket without change 

and may be made available online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which means EPA will not know your identity or 

contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov your e-
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mail address will be automatically captured and included as part of the comment that is 

placed in the public docket and made available on the Internet. If you submit an 

electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD–ROM you submit. If 

EPA cannot read your comment due to technical difficulties and cannot contact you for 

clarification, EPA may not be able to consider your comment. Electronic files should 

avoid the use of special characters, any form of encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket are listed in the http://www.regulations.gov index. 

Although listed in the index, some information is not publicly available, e.g., CBI or 

other information whose disclosure is restricted by statute. Certain other material, such 

as copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in http://www.regulations.gov or in 

hard copy at the Water Docket in the EPA Docket Center, EPA/DC, EPA West, Room 

3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 

telephone number for the Public Reading Room is 202–566–1744, and the telephone 

number for the Water Docket is 202–566–2426. 

FOR FURTHER INFORMATION CONTACT: For additional technical information, 

contact Paul Shriner at 202-566-1076; e-mail: shriner.paul@epa.gov. For additional 

economic information, contact Erik Helm at 202-566-1049; e-mail: helm.erik@epa.gov. 

For additional biological information, contact Tom Born at 202-566-1001; e-mail: 

born.tom@epa.gov. 
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SUPPLEMENTARY INFORMATION

What Entities Are Regulated By This Action? This proposed rule would apply to 

existing facilities that use cooling water intake structures to withdraw water from waters 

of the U.S. and have or require a National Pollutant Discharge Elimination System 

(NPDES) permit issued under Section 402 of the CWA. Existing facilities subject to this 

regulation would include those with a design intake flow greater than 2 MGD. If a 

facility meets these conditions, it is subject to today’s proposed regulations. If a facility 

has or requires a NPDES permit but does not meet the 2 MGD intake flow threshold, it 

would be subject to permit conditions implementing section 316(b), developed by the 

NPDES permit directorsdirector, on a case-by-case basis, using best professional 

judgment. This proposal defines the term “cooling water intake structure” to mean the 

total physical structure and any associated waterways used to withdraw water from 

waters of the U.S., provided that at least twenty-five percent of the water withdrawn is 

used for cooling purposes. 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. Generally, facilities that meet these criteria fall into two major groups: steam 

electric generating facilities and manufacturing facilities. 

 The following table lists the types of entities that are potentially subject to this 

proposed rule. This table is not intended to be exhaustive, but rather provides a guide for 

readers regarding entities likely to be regulated by this action. Other types of entities not 

listed in the table could also be regulated. 

Category Examples of Regulated Entities Standard Industrial 

Classification 

Codes 

North American Industry 

Codes (NAIC) 

Federal, State 

and Local 

Operators of steam electric generating point 

source dischargers that employ cooling 

4911 and 493 221111, 221112, 221113, 

221119, 221121, 221122, 

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Government water intake structures. 221111, 221112, 

221113, 221119, 

221121, 221122 

Industry Operators of industrial point source 

dischargers that employ cooling water 

intake structures. 

See below See below 

Steam electric generating 4911 and 493 221111, 221112, 221113, 

221119, 221121, 221122, 

221111, 221112, 

221113, 221119, 

221121, 221122 

Agricultural production 0133 111991 

11193 

Metal mining 1011 21221 

Oil and gas extraction 

(Excluding offshore and coastal 

subcategories) 

1311, 1321 211111, 211112 

Mining and quarrying of nonmetallic 

minerals 

1474 212391 

Food and kindred products 2046, 2061, 2062, 

2063, 2075, 2085 

311221, 311311, 311312, 

311313, 311222, 311225, 

31214 

Tobacco products 2141 312229, 31221 

Textile mill products 2211 31321 

Lumber and wood products, except furniture 2415, 2421, 2436, 

2493 

321912,321113, 321918, 

321999, 321212, 321219 

Paper and allied products 2611, 2621, 2631, 

2676 

3221, 322121, 32213, 

322121, 322122, 32213, 

322291 

Chemical and allied products 28 (except 2895, 

2893, 2851, and 

2879) 

325 (except 325182, 32591, 

32551, 32532) 

Petroleum refining and related industries 2911, 2999 32411, 324199 

Rubber and miscellaneous plastics products 3011, 3069 326211, 31332, 326192, 

326299 

Stone, clay, glass, and concrete products 3241 32731 

Primary metal industries 3312, 3313, 3315, 

3316, 3317, 3334, 

3339, 3353, 3363, 

3365, 3366 

324199, 331111, 331112, 

331492, 331222, 332618, 

331221, 22121, 331312, 

331419, 331315, 331521, 

331524, 331525 

Fabricated metal products, except 

machinery and transportation equipment 

3421, 3499 332211, 337215, 332117, 

332439, 33251, 332919, 

339914, 332999 
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Industrial and commercial machinery and 

computer equipment 

3523, 3531 333111, 332323, 332212, 

333922, 22651, 333923, 

33312 

Transportation equipment 3724, 3743, 3764 336412, 333911, 33651, 

336416 

Measuring, analyzing, and controlling 

instruments; photographic, medical, and 

optical goods; watches and clocks 

3861 333315, 325992 

Electric, gas, and sanitary services 4911, 4931, 4939, 

4961 

221111, 221112, 221113, 

221119, 221121, 221122, 

22121, 22133 

Educational services 8221 61131 

Engineering, accounting, research, 

management and related services 

8731 54171 

To determine whether your facility iscould be regulated by this action, you should 

carefully examine the applicability criteria in § 125.91 of the proposed 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. 

Supporting Documentation 

1. Docket 

EPA has established an official public docket for this action under Docket ID No. 

EPA-HQ-OW-2008-0667. The official public docket consists of the documents 

specifically referenced in this action, any public comments received, and other 

information related to this action. Although a part of the official docket, the public 

docket does not include information claimed as Confidential Business Information (CBI) 

or other information the disclosure of which is restricted by statute. For information on 
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how to access materials in the docket, refer to the preceding “ADDRESSES” section. To 

view docket materials, please call ahead to schedule an appointment. Every user is 

entitled to copy 266 pages per day before incurring a charge. The Docket may charge 15 

cents for each page over the 266-page limit plus an administrative fee of $25.00. 

2. Electronic Access 

You may access this Federal Register document and the docket electronically, as 

well as submit public comments, through the website http://www.regulations.gov by 

searching for Docket ID No. EPA-HQ-OW-2008-0667. For additional information about 

the public docket, visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. 

3. Technical Support Documents

The proposed regulation is supported by three major documents: 

1. Economic and Benefits Analysis for the Proposed Section 316(b) Existing 

Facilities Rule (EPA-821-R-11-003), hereafter referred to as the Economic and Benefits 

Analysis (EBA or more simply EA). This document presents the analysis of compliance 

costs, closures, energy supply effects, and a summary of benefits associated with the 

proposed rule. 

2. Environmental and Economic Benefits Analysis for the Proposed Section 

316(b) Existing Facilities Rule (EPA-821-R-11-002), hereafter referred to as the 

Environmental and Economic Benefits Analysis (EEBA). This document examines 

cooling water intake structure impacts and regulatory benefits at the regional level. 
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3. Technical Development Document for the Proposed Section 316(b) Existing 

Facilities Rule (EPA-821-R-11-001), hereafter referred to as the Technical Development 

Document (TDD). 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 

proposed rule requirements. 

Table of Contents

I. Legal Authority, Purpose, and Background of Today’s Proposed Regulation 

A. Legal Authority 

B. Purpose of Today’s Proposed Regulation 

C. Background 

II. Proposed Amendments Related to the Phase I Rule 

A. Restoration Provisions Not Authorized 

B. Corrections to Subpart I 

III. What New Information Has EPA Obtained or Developed in Support of This 

Proposed Rule? 

A. Additional Data 

B. Implementation Experience 

C. New or Revised Analyses 

IV. Revised Industry Description 

A. Water Use in Power Production and Manufacturing 

B. Overview of Electric Generators 

C. Overview of Manufacturers 

D. Other Existing Facilities 
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V. Scope and Applicability of the Proposed Section 316(b) Existing Facility Rule 

A. General Applicability 

B. What is an “Existing Facility” for Purposes of the Section 316(b) Phase II 

Rule? 

C. What is “Cooling Water” and What is a “Cooling Water Intake 

Structure?” 

D. Would My Facility Be Covered if it is a Point Source Discharger? 

E. Would My Facility Be Covered if it Withdraws Water From Waters of the 

U.S.? What if My Facility Obtains Cooling Water from an Independent 

Supplier? 

F. What Intake Flow Thresholds Result in an Existing Facility Being Subject 

to This Proposed Rule? 

G. Offshore Oil and Gas Facilities, Seafood Processing Vessels or LNG 

Import Terminals BTA Requirements Under This Proposed Rule 

H. What is a “New Unit” and How Are New Units Addressed Under This 

Proposed Rule? 

VI. BTA Consideration 

A. EPA’s Approach to BTA 

B. Technologies Considered to Minimize Impingement and Entrainment 

C. Technology Basis for Today’s Proposed Regulation 

D. Options Considered for Today’s Proposed Regulation 

E. Option Selection 
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F. Four Factors Support EPA’s Decision to Establish Site-Specific BTA 

Entrainment Controls for Existing Facilities 

G. The Process for Establishing Site-Specific BTA Entrainment Controls 

H. Implementation 

I. EPA’s Costing of the Preferred Option 

J. Consideration of Cost/Benefit on a Site-Specific Basis 

VII. Economic Impact of the Proposed Rule 

A. Overview of Costs to Complying Facilities and Federal and State 

Governments 

B. Development of Compliance Costs 

C. Social Cost of the Regulatory Options 

D. Economic Impact 

VIII. Benefits Analysis 

A. Introduction 

B. Regional Study Design 

C. Physical Impacts of I&E Mortality 

D. National Benefits of Today’s Considered Options 

E. Uncertainty and Limitations 

IX. Implementation 

A. How Would the Proposed Requirements Be Applied? 

B. When Would Affected Facilities Be Required to Comply? 

C. What Are My Requirements? 

D. What Information Must I Submit in My Permit Application? 
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E. When Are Application Studies Due? 

F. What Are the Monitoring Requirements in Today’s Proposal for Existing 

Facilities? 

G. What Reports Would I Be Required To Submit? 

H. What Records Would I Be Required to Keep? 

I. Are There Other Federal Statutes that Could Be Incorporated into a 

Facility’s Permit? 

J. What is the Director’s Role Under Today’s Proposal? 

X. Related Acts of Congress, Executive Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act (UMRA) 

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 Risks 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 
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K. Executive Order 13158: Marine Protected Areas 

XI. Solicitation of Data and Comments 

A. General Solicitation of Comment 

B. Specific Solicitation of Comments and Data 
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I. Legal Authority, Purpose, and Background of Today’s Proposed Regulation 

A. Legal Authority

 Today’s proposal 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. 

B. Purpose of Today’s Proposed Regulation

 The purpose of today’s notice is to propose national requirements for cooling 

water intake structures at existing facilities that implement section 316(b) of the CWA. 

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. 

 EPA first promulgated regulations to implement section 316(b) in 1976. The U.S. 

Court of Appeals for the Fourth Circuit remanded these regulations to EPA which 

withdrew them, leaving in place a provision not remanded that directed permitting 

authorities to determine BTA for each facility on a case-by-case basis. In 1995, EPA 

entered into a consent decree establishing a schedule for taking final action on regulations 

to implement section 316(b). Pursuant to a schedule in the amended decree providing for 

final action on regulations in three phases, in 2001, EPA published a Phase I rule 

governing new facilities. The U.S. Court of Appeals for the Second Circuit, while 

generally upholding the rule, rejected the provisions allowing restoration to be used to 

meet the requirements of the rule. Riverkeeper, Inc. v. U.S. EPA, 358 F. 3d 174, 181 (2d 
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Cir.2004)(“) (“Riverkeeper I”). Today’s notice proposes to delete these restoration 

provisions. 

 In 2004, EPA published the Phase II rule applicable to existing power plants. with 

a design intake flow greater than or equal to 50 MGD. Following challenge, the Second 

Circuit remanded numerous aspects of the rule to the Agency, including the Agency’s 

decision to reject closed-cycle cooling as BTA. The Agency made this determination, in 

part, based on a consideration of costs and benefits. The Second Circuit concluded that a 

comparison of the costs and benefits of closed-cycle cooling was not a proper factor to 

consider in determining BTA. Riverkeeper, Inc. v. U.S.EPA, 475 F. 3d 83 (2d Cir. 

2007)(“) (“Riverkeeper II”). In 2008, the U.S, Supreme Court agreed to review the 

Riverkeeper II decision limited to a single issue: whether section 316(b) authorizes EPA 

to balance costs and benefits in 316(b) rulemaking. In April 2009, in Entergy Corp. v. 

Riverkeeper Inc., 129 S. Ct. 1498, 68 ERC 1001 (2009) (40 ER 770, 4/3/09), the Supreme 

Court ruled that it is permissible under section 316(b) to consider costs and benefits in 

determining the best technology available to minimize adverse environmental impacts. 

The court left it to EPA’s discretion to decide whether and how to consider costs and 

benefits in 316(b) actions, including rulemaking and BPJ determinations. The Supreme 

Court remanded the rule to the Second Circuit. Subsequently, EPA asked the Second 

Circuit to return the rule to the Agency for further review of the rule. 

 In 2006, EPA published the Phase III rule. The Phase III rule establishes 316(b) 

requirements for certain new offshore oil and gas extraction facilities. In addition, EPA 

determined that, in the case of electric generators with a design intake flow of less than 

50 MGD and existing manufacturing facilities, 316(b) requirements should be established 
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by NPDES permit directors on a case-by-case basis using their best professional 

judgment. In July 2010, the U. S. Court of Appeals for the Fifth Circuit issued a decision 

upholding EPA's rule for new offshore oil and gas extraction facilities. Further, the court 

granted the request of EPA and environmental petitioners in the case to remand the 

existing facility portion of the rule back to the Agency for further rulemaking. See section 

C.2 below for a more detailed discussion of the history of EPA’s actions to address 

standards for cooling water intake structures. 

 In response to the remand in Phase II, the remand of the existing facility portion 

of the Phase III rule, and the associated Supreme Court decision, EPA is today proposing 

a number of requirements. Most significantly, EPA is proposing requirements reflecting 

the best technology available for minimizing adverse environmental impact, applicable to 

the location, design, construction, and capacity of cooling water intake structures for 

existing facilities. EPA is treating existing power generating facilities and existing 

manufacturing and industrial facilities in one proceeding. Today’s proposal applies to all 

existing power generating facilities and existing manufacturing and industrial facilities 

that have thea design capacityintake flow of at least two million gallons 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. In addition, EPA is today also 

responding to the decision in Riverkeeper I and proposing minor changes to the Phase I 

rule for new facilities. Specifically, EPA proposes to remove from the Phase I rule the 

restoration-based compliance alternative and the associated monitoring and 

demonstration requirements. 

C. Background
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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). Among the goals of 

the Act is 

“wherever attainable, an interim goal of water quality which provides for 

the protection and propagation of fish, shellfish, and wildlife and provides 

for recreation in and on the water...” 33 U.S.C. § 1251(a)(2). 

In furtherance of these objectives, 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 in compliance with 

the statute; (2) authority for EPA or authorized States or Tribes to issue National 

Pollutant Discharge Elimination System (NPDES) permits that authorize and regulate the 

discharge of pollutants; and (3) requirements for effluent limitations and other conditions 

in NPDES permits to implement applicable technology-based effluent limitations 

guidelines and standards and applicable State water quality standards. 

 Section 402 of the CWA authorizes 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-seven 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 by requiring dischargers to 

meet technology-based effluent limitations guidelines (ELGs) or new source performance 
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standards (NSPS) established pursuant to section 301 or section 306. Where such 

nationally applicable ELGs or NSPS exist, permit authorities must incorporate them into 

permit requirements. Where they do not exist, permit authorities establish effluent 

limitations and conditions, reflecting the appropriate level of control (depending on the 

type of pollutant) based on the best professional judgment (BPJ) of the permit writer. 

Limitations based on these guidelines, standards, or on best professional judgment are 

known as technology-based effluent limits. Where technology-based effluent limits are 

inadequate to meet applicable State water quality standards, section 301(b)(1)(C) of the 

Clean Water Act requires permits to include more stringent limits to meet applicable 

water quality standards. NPDES permits also routinely include standard conditions 

applicable to all permits, special conditions, and monitoring and reporting requirements. 

In addition to these requirements, NPDES permits must contain conditions to implement 

the requirements of section 316(b). 

 Section 510 of the Clean Water Act provides, that, except as provided in the 

Clean Water Act, nothing shall 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 may not adopt 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 v. Washington Dep't of 

Ecology, 511 U.S. 700, 705 (1994). 
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 Sections 301, 304, and 306 of the CWA require that EPA develop technologybased effluent limitations guidelines and new source performance standards that are used 

as the basis for discharge requirements in wastewater discharge permits. EPA develops 

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 56 

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, paper and allied products, 

petroleum refining, iron and steel manufacturing, and chemicals and allied products). 

 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. 

 Section 316(b) addresses the adverse environmental impact caused specifically by 

the intake of cooling water, rather than discharges into water.of pollutants, including 

thermal discharges, into waters of the United States. Despite this special focus, the 

requirements of section 316(b) remain closely linked to several of the core elements of 

the NPDES permit program established under section 402 of the CWA to control 
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discharges of pollutants into navigable waters. Thus, 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 also 

withdraw water from a water of the United States for cooling and that use a cooling water 

intake structure to do so. 

The CWA does not describe the factors to be considered in establishing 

section 316(b) substantive performance requirements that reflect the “best technology 

available for minimizing adverse environmental impact.”” nor does it require that 

EPA develop nationally applicable performance requirements through rule making.

The most recent guidance in interpreting 316(b) comes from the U.S. Supreme 

Court’s decision in Entergy Corp. v. Riverkeeper, Inc. As noted, the decision was 

limited to the single question of whether Section 316(b) of the Clean Water Act 

authorizes EPA to compare costs and benefits of various technologies when setting 

national performance standards for cooling water intake structures under Section 

316(b) of the Clean Water Act. In Riverkeeper II, the Second Circuit rejected EPA’s 

determination that closed-cycle cooling was not BTA because it could not determine 

whether EPA had improperly considered costs and benefits in its 316(b) rulemaking. 

The Supreme Court reversed and remanded the Second Circuit ruling in a 6-3 opinion 

authored by Justice Scalia. The Court held that it is reasonable for EPA to conduct a 

cost-benefit analysis in setting national performance standards for cooling water 

intake structures under Section 316(b). The Court held that EPA has the discretion to 

consider costs and benefits under Section 316(b) but is not required to consider costs 

and benefits. The Court’s discussion of the language of section 316(b) – section 
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316(b) is “unencumbered by specified statutory factors” -- and its critique of the 

Second Circuit’s decision affirms EPA’s broaderbroad discretion to consider a 

number of factors in standard setting under section 316(b). While the Supreme 

Court’s decision is limited to whether or not EPA may consider one factor 

(cost/benefit analysis) under section 316(b), the language also suggests that EPA has 

wide discretion in considering other factors that it deems relevant to 316(b) standard 

setting. (“It is eminently reasonable to conclude that § 1326b’s silence is meant to 

convey nothing more than a refusal to tie the agency’s hands as to whether costbenefit analysis should be used, and if so to what decree.” (emphasis 

supplied),degree.” 129 S.Ct. 1498, 1508 (2009). 

Regarding the other factors EPA may consider, section 316(b) cross 

references sections 301 and 306 of the CWA by requiring that any standards 

established pursuant to those sections also must require that the location, design, 

construction and capacity of intake structures reflect BTA. Thus, among the factors 

EPA may use to determine BTA, EPA may look to similar phrases used elsewhere in 

the CWA. See Riverkeeper v. EPA, (2nd Cir. Feb. 3, 2004). SectionEPA has 

interpreted the cross reference as authorizing consideration of the same factors 

considered under those provisions Thus, for example, section 306 directs EPA to 

establish performance standards for new sources based on the “best available 

demonstrated control technology” (BADT). 33 U.S.C. 1316(a)(1). In establishing 

BADT, EPA “shall take into consideration the cost of achieving such effluent 

reduction, and any non-water quality environmental impact and energy 

requirements.” 33 U.S.C. 1316(b)(2)(B). The specific cross-reference in CWA 
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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. See Riverkeeper v. 

EPA, 358 F. 2d 174, 186 (2nd Cir. 2004). 

Similarly, Section 301 of the CWA requires EPA to establish standards known 

as “effluent limitations” for existing point source discharges in two phases. In the 

first phase, applicable to all pollutants, EPA must establish effluent limitations based 

on the “best practicable control technology currently available” (BPT). 33 U.S.C. 

1311(b)(1)(A). In establishing BPT, 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 shallto 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). 

 In the second phase, EPA must establish effluent limitations for conventional 

pollutants based on the “best conventional pollution control technology” (BCT), and for 

toxic pollutants based on the “best available technology economically achievable” 

(BAT). 33 U.S.C. 1311(b)(2)(A), (E). 

 In determining BCT, EPA must consider, among other factors, 

“the relationship between the costs of attaining a reduction in effluents and 

the effluent reduction benefits derived, and the comparison of the cost and 

level of reduction of such pollutants from the discharge from publicly 

owned treatment works to the cost and level of reduction of such 

pollutants from a class or category of industry source.... and the age of 

equipment and facilities involved, the process employed, the engineering 
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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)(4)(B). 

In determining BAT, 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, nonwater 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 the phrases “best available technology economically 

achievable ” and “best practicable control technology currently available” in that section. 

Thus, section 316(b), section 301(b)(1)(A) -- the BPT provision-- and section 

301(b)(1)(B) -- the BAT provision -- all include the terms “best,” “technology,” and 

“available,” but neither BPT nor BAT goes on to consider minimizing adverse 

environmental impacts, as BTA does. See 33 U.S.C. 1311(b)(1)(A) and (2)(A). These 

facts, coupled with the brevity of section 316(b) itself, promptsprompt EPA to look to 

section 301 and, ultimately, section 304 for further guidance in determining the “best 

technology available to minimize adverse environmental impact” of cooling water intake 

structures for existing 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 (2nd Cir. Feb. 3, 2004) (“not every statutory directive contained [in 

sections 301 and 306] is applicable” to a section 316(b) rulemaking). Moreover, as the 

Supreme Court recognized, while the provisions governing the discharge of toxic 
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pollutants must require the elimination of discharges if technically and economically 

achievable, section 316(b) has the less ambitious goal of “minimizing adverse 

environmental impact.” 129 S.Ct. 1498, 1506. 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). EPA has established BPT and

BAT effluent limitations guidelines and NSPS based on the efficacy of one or more 

technologies to reduce pollutants in wastewater in relation to their costs without 

necessarily considering the impact on the receiving waters... This contrasts to 316(b) 

requirements, where 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 has 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 EBAD 455 (Aug. 4, 1978); Seacoast Anti-Pollution League v. Costle, 597 

F. 2d 306 (1st Cir. 1979)). EPA concluded that, because both section 301 and 306 are 

expressly cross-referenced in section 316(b), EPA reasonably interpreted section 316(b) 

as authorizing consideration of the same factors, including costs, as in those sections. 

EPA interpreted “best technology available” to mean the best technology available at an 

“economically practicable” cost. This approach squared with the limited legislative 

history of section 316(b) which suggested the BTA was to be based on technology whose 

costs were “economically practicable.” In debate on section 316(b), one legislator 

explained that “[t]he reference here to ‘best technology available’ is intended to be 
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interpreted to mean the best technology available commercially at an economically 

practicable cost.” 118 Cong. Rec. 33,762 (1972) (statement of Rep. Clausen) (emphasis 

added). 

For EPA’s initial Phase II rulemaking, as it had during 30 years of BPJ section 

316(b) permitting, EPA therefore interpreted CWA section 316(b) as authorizing EPA to 

consider not only the costs of technologies but also their effects on the water from which 

the cooling water is withdrawn. 

2. History of Actions to Address Cooling Water Intake Structures Under the NPDES 

Program 

a. 1976 Rulemaking 

In April 1976, EPA promulgated regulations under section 316(b) that addressed 

cooling water intake structures. 41 FR 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 Clean Water Act section 316(b). It also added a new 

part 402, which included three sections: (1) Section 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 
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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 U. SsS. 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 § 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 caseby-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) Pub. 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, “[t]he 

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 case-by-case basis.” (Section 316(b) Draft Guidance, U.S. EPA, 1977, p. 
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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 site specific 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. 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. 

b. Phase I – New Facility Rule 

On November 9, 2001, EPA took final action on regulations governing cooling 

water intake structures at new facilities. See 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 125, Subpart I) establishes requirements 

applicable to the location, design, construction, and capacity of cooling water intake 

structures at new facilities that have a design capacity to withdraw at least two million 

gallons per day (MGD) and use at least twenty-five 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 that withdraw equal to or greater than 10 MGD, the intake flow of the cooling 

water intake structure is restricted, at a minimum, to a level commensurate with that 
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which could be attained by use of a closed-cycle, recirculating cooling system. For 

facilities that withdraw greater than 2 MGD, the design through-screen intake velocity is 

restricted to 0.5 feet per second and the total quantity of intake is restricted to a 

proportion of the mean annual flow of a freshwater river or stream, or to a level necessary 

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 that withdraws equal to or greater than 10 MGD must select and implement 

appropriate design and construction technologies for further minimizing impingement 

mortality and entrainment. Applicants with greater than 2 MGD but less than 10 MGD 

flows are not required to reduce intake flow to a level commensurate with a closed-cycle, 

recirculating cooling system, but must still meet specific operational criteria. 

Under Track II, the applicant has the opportunity to demonstrate to the Director 

that the technologies he employs will reduce the level of adverse environmental impact to 

a comparable level to what would be achieved by meeting the Track I requirements for 

restricting intake flow and velocity. In making this demonstration, the regulations 

allowsallow an applicant to rely on a combination of measures in additional to 

technology controls for reducing impingement and entrainment to achieve results 

equivalent to the Track I intake flow and velocity requirements. These include measures 

to restore the affected water body such as restocking fish and improvement of the 

surrounding habitat to offset the adverse effects that would otherwise be causecaused by 

the operation of the intake structures. These restoration measures would result in 

increases in fish and shellfish, which, in combination with any technologies employed, 
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would result in a level of fish and shellfish in the water body comparable to the 

reductionthat which would result from the reductions in impingement mortality and 

entrainment itthat would achievebe achieved under Track I. Note that restoration 

provisions are no longer authorized, (and EPA is proposing to delete them from the CFR 

in this rule making), but they are included in this description of the Phase I rule for 

completeness. See Chapter II of this preamble for more information. 

In addition, under the Phase I rule, the Director (i.e., the permitting authority) may 

establish less stringent alternative requirements for a facility if compliance with the Phase 

I standards would result in compliance costs wholly out of proportion to those EPA 

considered in establishing the Phase I requirements at issue or would result in significant 

adverse impacts on local air quality, water resources, or local energy markets. 

EPA specifically excluded new offshore oil and gas extraction facilities from the 

Phase I new facility rule, but committed to consider establishing requirements for such 

facilities in the Phase III rulemaking. 66 FR 65338 (December 18, 2001). 

c. Phase II – Large Flow Existing Power Plants 

On February 16, 2004, EPA took final action on regulations governing cooling 

water intake structures at certain existing power producing facilities. 69 FR 41576 (July 

9, 2004). The final Phase II rule applied to existing facilities that are point sources; that, 

as their primary activity, both generate and transmit electric power or generate electric 

power for sale or transmission; that use or propose to use a cooling water intake structure 

with a total design intake flow of 50 MGD or more to withdraw water from waters of the 

United States; and that use at least 25 percent of the withdrawn water exclusively for 

cooling purposes. In addition, power producers fitting the description above were also 
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subject to the final Phase II rule even if they obtain their cooling water from one or more 

independent suppliers of cooling water. Such facilities were subject to the rule if their 

supplier withdraws water from waters of the U.S. even if the supplier was not itself a 

Phase II existing facility. EPA included this provision to prevent circumvention of the 

Phase II rule requirements by a facility purchasing cooling water from non-Phase II 

entities. not otherwise subject to Section 316(b).

The final Phase II rule and preamble also clarified the definition of an “existing” 

power producing facility. The Phase II rule defined an “existing facility” as “any facility 

that commenced construction as described in § 122.29(b)(4) on or before January 17, 

2002; and any modification of, or addition of a unit at such a facility that does not meet 

the definition of a new facility at § 125.83..” Given that the definition of the term 

“existing facility” was based in part on the Phase I definition of the term “new facility,” 

the preamble to the final Phase II rule also clarified and provided some examples of how 

the definition of “existing facility” might apply to certain changes at power producing 

facilities. 

Under the Phase II rule, EPA established BTA performance standards for the 

reduction of impingement mortality and, when appropriateunder certain circumstances, 

entrainment (see 69 FR 41590-41593). The performance standards consisted 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).) relative to a 

“calculation baseline” that reflected the level of impingement mortality and entrainment 

that would occur absent specific controls. These performance standards were not based 

on a single technology but, rather, on consideration of a combination of technologies that 
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EPA determined were commercially available and economically achievable for the 

industries affected as a whole. (69 FR 41598-41610). EPA based the impingement 

mortality and entrainment (I&E) performance standards on a combination of technologies 

because it found no single technology to be most effective at all affected facilities. For 

impingement standards, these technologies included: (1) fine and wide-mesh wedgewire 

screens, (2) barrier nets and, (3) modified screens and fish return systems, (4) fish 

diversion systems, and (5) fine mesh traveling screens and fish return systems. With 

regard to entrainment reduction, these technologies include: (1) aquatic filter barrier 

systems, (2) fine mesh wedgewire screens, and (3) fine mesh traveling screens with fish 

return systems. Because EPA based the performance standards on a combination of 

technologies and because of the uncertainty inherent in predicting the efficacy of one or 

more of these technologies as applied to different Phase II facilities, EPA promulgated 

these standards as ranges. Furthermore, because the site-specific performance was based 

on a comparison to a once-through system without any specific controls on the shoreline 

near the source waterbody (i.e., calculation baseline, see section III.A.2 for more details), 

EPA attempted to providethe rule also allowed facilities withto receive credit towards 

meeting the performance standards for locationI&E reduction associated with alternate 

locations of their intake.intakes (eg, deep water where fish and shellfish were less 

abundant).

The typetypes of performance standard applicable to a particular facility (i.e., 

reductions in impingement mortality only or impingement mortality and entrainment) 

were 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. 
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The Phase II rule identified five compliance alternatives to meet the performance 

standards... A facility could demonstrate to the Director one of the following: (1) that it 

has already reduced its flow commensurate with a closed-cycle recirculating system (to 

meet both impingement mortality and entrainment), or that it has already reduced its 

maximum through-screen velocity to 0.5 feet per second or less (to meet the impingement 

performance standard only); (2) that its current cooling water intake structure 

configuration meets the applicable performance standards; (3) that it has selected design 

and construction technologies, operational measures, and/or restoration measures that, in 

combination with any existing design and construction technologies, operational 

measures, and/or restoration measures, meet the applicable performance standards; (4) 

that it meets the applicability criteria and has installed and is properly operating and 

maintaining a rule-specified and/or approved State-specified approved design and 

construction technology (i.e., submerged cylindrical wedgewire screenscreens) in 

accordance with § 125.99(a) or an alternative technology that meets the appropriate 

performance standards and is approved by the Director in accordance with § 125.99(b); 

or (5) that its costs of compliance would be significantly greater either than the costs 

considered by the Administrator for a like facility to meet the applicable performance 

standards, or than the benefits of meeting the applicable performance standards at the 

facility. Under the cost-cost comparison alternative, a Director could determine that the 

cost of compliance for a particular facility would be significantly greater than the costs 

considered by EPA in establishing the applicable impingement mortality and entrainment 

reduction performance standards. Similarly, under the cost-benefit comparison 

alternative, a Director could determine that the cost of compliance for a particular facility 
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would be significantly greater than the benefits of complying with the applicable 

performance standards. In the event of a cost-cost or cost-benefit determinationeither of 

these determinations, the Director would have to make a site-specific determination of 

BTA for minimizing adverse environmental impact that came as close as possible to 

meeting the applicable performance standards at a cost that did not significantly exceed 

either the costs EPA considered in establishing these standards or the site-specific 

benefits of meeting these standards. 

The final Phase II rule also provided that a facility that chooses specified 

compliance alternatives might request that compliance with the requirements of the rule 

be determined based on the implementation of a Technology Installation and Operation 

Plan (TIOP) that would indicate how the facility would install and ensure the efficacy, to 

the extent practicable, of design and construction technologies, and/or operational 

measures, and/or a Restoration Plan. The rule also established requirements for the 

development and submittal of a TIOP (§ 125.95(b)(4)(ii)) as well as provisions that 

specified how compliance could be determined based on implementation of a TIOP (§ 

125.94(d)). Under these provisions, a TIOP could be requested in the first permit term 

and continued use of a TIOP could be requested where a facility was in compliance with 

such plansplan and/ or theirits Restoration PlansPlan. 

d. Phase III Rulemaking – Low Flow Existing Power Plants, Existing Manufacturing 

Facilities, and New Offshore Oil and Gas Facilities 

 On June 16, 2006, EPA published a final Phase III rule that establishesestablished

categorical regulations for new offshore oil and gas extraction facilities that have a design 

intake flow threshold of greater than 2 MGD and that withdraw at least 25 percent of the 
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water exclusively for cooling purposes. The For most such facilities, the rule establishes 

requirements virtually identical to the requirements applicable to new facilities in the 

Phase I rule. In the Phase III rule, EPA declined to establish national standards for other 

Phase III existing facilities. Instead it concluded that CWA section 316(b) requirements 

for electric generators with a design intake flow of less than 50 MGD and all existing 

manufacturing facilities would continue to be established on a case-by-case basis under 

the NPDES permit program. using best professional judgment. (71 FR 35006). 

3. Rulings by the U.S. Court of Appeals for the Second Circuit 

 Both the Phase I and Phase II 316(b) rules were challenged in the U.S. Court of 

Appeals for the Second Circuit. Key aspects of each of these decisions are discussed 

below. 

a. Phase I Rule 

 Various environmental and industry groups challenged the Phase I 316(b) rule. In 

February 2004, the Second Circuit sustained the entire rule except for the restoration 

provision, ruling that restoration was not a technology as provided for in 316(b). With 

respect to the other provisions of the rule, the Court concluded the Phase I rule was based 

on a reasonable interpretation of the applicable statute and sufficiently supported by the 

record. Restoration provisions of the rule were remanded to EPA for further rulemaking 

consistent with the Court’s decision. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 191 (2nd 

Cir., 2004). Today’s proposal rule would remove the restoration provisions from the 

Phase I rule. See Chapter II of this preamble for more details. 

b. Phase II Rule 
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Industry, environmental stakeholders, and some States1 challenged many aspects 

of the Phase II regulations. On January 25, 2007, the Second Circuit (Riverkeeper, Inc. v. 

EPA, 475 F.3d 83, (2d Cir., 2007)) upheld several provisions of the Phase II rule and 

decision and remanded others to EPA for further rulemaking. 

As noted above, for the final rule EPA rejected closed-cycle cooling as BTA. 

Instead, EPA selected a suite of technologies to reflect BTA, including e.g., screens, 

aquatic filter barriers, and barrier nets. Based on the chosen technologies, EPA 

established national performance standards for reducing impingement mortality and 

entrainment of fish and fish organisms but did not require the use of any specific 

technology. Among the aspects of the rule the Second Circuit remanded for further 

explanationclarification was EPA’s decision to reject closed-cycle cooling as BTA and 

EPA’s determination of performance ranges as BTA. In addition, the Second Circuit 

found that, consistent with its Phase I decision, restoration was not a technology for BTA, 

and that EPA’s cost-benefit site-specific compliance alternative was not in accord with 

the Clean Water Act. There are also several issues for which the court requested 

additional clarification, and some instances where the court determined that EPA had 

failed to provide adequate notice and opportunity to comment on certain provisions of the 

rule. 

4. EPA Suspension of the Phase II Rule 

 As a result of the decision of the Second Circuit Court of Appeals in Riverkeeper, 

Inc. v. EPA, 475 F.3d 83, (2d Cir., 2007), EPA, on July 9, 2007 (72 FR 37107) suspended 

the requirements for cooling water intake structures at Phase II existing facilities, pending 

 

1

 Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York. 
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further rulemaking. Specifically, EPA suspended the provisions in § 122.21(r)(1)(ii) and 

(5), and part 125 Subpart J, with the exception of Sec. 125.90(b). EPA explained that 

suspending the Phase II requirements was an appropriate response to the Second Circuit’s 

decision, and that such action would allow it to consider how to respond to the remand. 

In addition, suspending the Phase II rule was responsive to the concerns of the regulated 

community and permitting agencies, both of whom sought guidance regarding how to 

proceed in light of the approaching deadline of the remanded rule. EPA’s suspension 

clarified that pending further rulemaking, permit requirements for cooling water intake 

structures at Phase II facilities should be established on a case-by-case, best professional 

judgment (BPJ) basis (see 125.90(b)). 

5. Ruling by the U.S. Supreme Court 

Following the Phase II decision in the Second Circuit, several industry group 

litigants petitioned the U.S. Supreme Court to hear an appeal regarding several issues in 

the case. Entergy Corp. et al. v. EPA, S. Ct. No. 07-588, et al. On April 14, 2008, the 

Supreme Court granted the petitions for writs of certiorari submitted by these Phase II 

litigants, but limited its review to the issue of whether section 316(b) authorizes EPA to 

compare costs with benefits in determining BTA for cooling water intake structures. The 

Supreme Court held oral arguments in this case on December 2, 2008, and issued a 

decision on April 1, 2009. The Supreme Court held that it is permissible for EPA to rely 

on cost-benefit analysis in decision making for setting the Phase II national performance 

standards, and in providing for cost-benefit variances from those standards as part of the 

Phase II regulations. The Court indicated that the phrase “best technology available for 

minimizing adverse environmental impact” does not unambiguously preclude use of cost-
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benefit analysis in decision making. The ruling supports EPA’s discretion to consider 

costs and benefits, but imposes no obligation on the agency to do so. 

6. Ruling by the U.S. Court of Appeals for the Fifth Circuit 

In 2009, EPA petitioned the Fifth Circuit to remand the existing facility portion of 

the Phase III rule. Specifically, EPA requested remand of those provisions in the Phase 

III rule that establish 316(b) requirements at electric generators with a design intake flow 

of less than 50 MGD, and at existing manufacturing facilities, on a case-by-case basis 

using best professional judgment. This request did not affect the Phase III rule 

requirements that establish categorical regulations for new offshore oil and gas extraction 

facilities that have a design intake flow threshold of greater than 2 MGD and that 

withdraw at least 25 percent of the water exclusively for cooling purposes. 

On July 23, 2010, the U. S. Court of Appeals for the Fifth Circuit issued a 

decision regarding the Phase III rule. The Court granted EPA’s motion to remand the 

rule with respect to existing facilities. In addition, the Fifth Circuit affirmed the portion of 

the rule that regulated cooling water intake structures for new offshore oil and gas 

facilities. In sustaining these requirements, the Fifth Circuit upheld EPA’s decision not 

to use cost benefit balancing in determining the requirements for these new facilities. 

This was in accord with the discretion afforded by 316(b) and affirmed by the Supreme 

Court, namely that EPA properly interpreted section 316(b) as authorizing, but not 

requiring, the Agency to consider costs and benefits in its decision making. 

7. Settlement of Litigation in U.S. District Courts 
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On January 19, 1993, a group of individuals and environmental organizations2

filed, under section 505(a)(2) of the CWA, 33 U.S.C. § 1365(a)(2), a complaint in 

Cronin, et. al. v. Reilly, 93 Civ. 314 (LTS)(S.D.N.Y.). The plaintiffs alleged that EPA 

had failed to perform a non-discretionary duty to issue regulations implementing section 

316(b) of the CWA, 33 U.S.C. § 1326(b). In 1995, EPA and the plaintiffs executed a 

consent decree in the case that provided for EPA to implement section 316(b) of the 

CWA by prescribed dates in the three separate rulemaking proceedings described above. 

In late 2002, the district court entered an amended consent decree that modified the 

schedule for the Phase II and Phase III rulemakings for existing facilities. 

On November 17, 2006, some of the same environmental organizations in the 

Cronin case filed a second complaint, amended on January 19, 2007, in Riverkeeper, et 

al. v. EPA, 06 Civ. 12987 (S.D.N.Y.). Here, the plaintiffs alleged that EPA failed to 

perform a non-discretionary duty under section 316(b) of the CWA in its final regulation 

covering the Phase III facilities, and also had violated sections 706(2)(A) and 706(2)(C) 

of the Administrative Procedure Act (APA) in the manner in which it had made that 

decision. 

Earlier, the same plaintiffs had also petitioned for review of the Phase III rule in 

the U.S. Court of Appeals for the Second Circuit. This and other petitions for review 

were consolidated for hearing in the U.S. Court of Appeals for the Fifth Circuit. Conoco 

 

2

 There are the following plaintiffs currently: Riverkeeper, Inc.; Alex Matthiessen, a/k/a 

The Hudson Riverkeeper; Maya K. Van Rossum, a/k/a The Delaware Riverkeeper; 

Terrance E. Backer, a/k/a The Soundkeeper; John Torgan, a/k/a The Narragansett 

BayKeeper; Joseph E. Payne, a/k/a The Casco BayKeeper; Leo O’Brien, a/k/a the San 

Francisco BayKeeper; Sue Joerger, a/k/a The Puget Soundkeeper; Steven E. Fleischli, 

a/k/a The Santa Monica BayKeeper; Andrew Willner, a/k/a The New York/New Jersey 

Baykeeper; The Long Island Soundkeeper Fund, Inc.; The New York Coastal 

Fishermen’s Association, Inc.; and The American Littoral Society, Inc. 
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Phillips v. EPA (5th Cir. No. 06-60662). Following the Supreme Court decision in 

Entergy, EPA, Riverkeeper and others requested remand of the regulation to allow EPA 

to reconsider its decisions regarding Phase III facilities in light of more recent technical 

information and recent court decisions. OnAs noted above, on July 23, 2010, the Fifth 

Circuit granted the joint motion of EPA and environmental petitioners for a voluntary 

remand. On September 3, 2010, one of the industry petitioners filed a petition asking the 

Fifth Circuit panel to rehear its grant of the motion to remand. 

On August 14, 2008, EPA filed a motion to terminate the Cronin proceeding 

because it had discharged its obligations (“to take final action”) under the decree with 

respect to the Phase II and III rulemakings. The plaintiffs in Cronin asserted that EPA 

hashad not discharged its obligations under the second amended decree because the 

Second Circuit remanded core provisions of the 316(b) rule for existing power plants to 

EPA, and EPA had suspended the Phase II rule. In the Riverkeeper proceeding, on 

February 7, 2007, EPA moved to dismiss arguing that the district court lacked 

jurisdiction to hear the challenge to the Phase III rule. 

Recently, EPA entered into a settlement with the plaintiffs in both lawsuits. 

Under the settlement agreement, EPA agreed to sign a notice of a proposed rulemaking 

implementing section 316(b) of the CWA at existing facilities no later than March 14, 

2011 and to sign a notice taking final action on the proposed rule no later than July 27, 

2012. Plaintiffs agreed to seek dismissal of both their suits, subject to a request to reopen 

the Cronin proceeding in the event EPA failed to meet the agreed deadlines. The district 

courts have now entered orders of dismissal. On March 11, 2011, the parties agreed to an 
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amendment to the settlement agreement to extend the date for proposal to March 28, 

2011.

II. Proposed Amendments Related to the Phase I Rule 

EPA is proposing several limited changes to the Phase I rule at 40 C.F.R. Subpart 

I. The changes fall into two categories. The first is deletion of the provision in the rule 

that would allow a facility to demonstrate compliance with the Phase I BTA requirements 

in whole or in part through restoration measures. The proposed change responds to the 

decision of the U.S. Court of Appeals for the Second Circuit which remanded these 

provisions to EPA because it concluded the statute did not authorize restoration measures 

to comply with section 316(b) requirements. The second category of changes reflects 

technical corrections or errors that do not change the substance of the current Phase I 

rule. EPA is not reopening any other aspects of the Phase I rule other than the provisions 

specifically noted here. 

A. Restoration Provisions Not Authorized

 As discussed above in Section I.C.2, the Phase I final rule established two 

compliance tracks. Track I requires facilities to restrict intake flow and velocity. Track 

II gives a facility the option of demonstrating to the Director that the control measures it 

employs will reduce the level of adverse environmental impact to a comparable level to 

what would be achieved by meeting the Track I requirements. As part of this 

demonstration, Track II allows a facility to make use of restoration measures. The 

Comprehensive Demonstration Study allowed a quantitative or qualitative demonstration 

that restoration measures would meet, in whole or in part, the performance levels of 
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Track I. Similarly, the Verification Monitoring Plan could be tailored to verify that the 

restoration measures would maintain the fish and shellfish in the waterbody toat a 

substantially similar level asto that which would be achieved under Track I. See 65 FR 

65280-65281. 

 As discussed in Section I.C.3, the Second Circuit concluded that EPA exceeded 

its authority by allowing new facilities to comply with section 316(b) through restoration 

measures, and remanded that aspect of the rule to EPA. The Supreme Court did not grant 

the petitions for writs of certiorari concerning restoration provisions. Thus in EPA’s 

view the Agency is bound by the Second Circuit decision. Today’s notice proposes to 

amend Phase I to remove those provisions in § 125.84(d) and 125.89(b)(1)(ii) authorizing 

restoration measures. This notice also specifically proposes deletion of application 

requirements contained in the Comprehensive Demonstration Study at § 125.86(c)(2)(ii); 

evaluation of proposed restoration measures at 125.86(c)(2)(iv)(C); and verification 

monitoring requirements at 125.86(c)(2)(iv)(D)(2)) that are specific to restoration. EPA 

acknowledges these changes may reduce the alternatives available to some Phase I 

facilities. However, EPA notes that the deletion of restoration measures does not 

otherwise alter the availability of Track II. In any event, EPA’s determination of BTA for 

Phase I did not presume reliance on the restoration provisions, and the deletion of 

restoration measures in no way alters the Agency’s BTA determination for Phase I 

facilities. 

B. Corrections to Subpart I

 Today’s notice proposes to change the applicability statement at 125.81(a)(3) to 

match the applicability of the technical requirements at 125.84 and application 
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requirements at 125.86. The applicability in all three instances should specify design 

intake flow or withdrawals “greater” than the specified value of 2 MGD. See Basis for 

the Final Regulation at 66 FR 65270. 

 Today’s notice also proposes a correction to the source waterbody flow 

information submission requirements. Track I requirements at 125.84(b)(3) apply to new 

facilities that withdraw equal to or greater than 10 MGD. Track I requirements at 

125.84(c)(2) apply to facilities that withdraw less than 10 MGD. ThereforeThe source 

waterbody flow information under 125.86(b)(3) requires a facility to demonstrate it has 

met the flow requirements of both 125.84(b)(3) “and” 125.84(c)(2). However, a facility 

can not be subject to both 125.84(b)(3) and 125.84(c)(2) at the same time. Accordingly, 

the word “and” should read as “or” in 125.86(b)(3). 

 In addition, today’s notice proposes corrections to certain references to the Design 

and Construction Technology Plan submission requirements. Thethe application 

requirement for the Source Water Biological Characterization isat 122.21(r)(4). 

Accordingly, referencereferences to the Source Water Biological Characterization should 

read as (r)(4). The reference However, the references to the Source Water Biological 

Characterization at 125.86(b)(4)(iii), at 125.87(a), and at 125.87(a)(2) incorrectly 

refersrefer to 122.21(r)(3).) and are thus being corrected.

III. What New Information Has EPA Obtained or Developed in Support of This 

Proposed Rule? 

 In developing the Phase I, Phase II, and Phase III rules, EPA collected and 

analyzed a substantial amount of information regarding cooling water intake structures, 
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their biological impacts, available technologies to reduce those impacts, and other 

relevant subjects. EPA considered a sizable volume of material submitted during 

previous public comment periods, as well as additional data from stakeholders, industry 

groups, technology vendors, and environmental organizations since those comment 

periods. Many of the materials are summarized or discussed in the preambles to these 

regulations or in the administrative record for these rules (see, e.g., docket numbers W00-03, OW-2002-0049, and EPA-OW-2004-0002). Today’s proposal is based on data 

and information contained in the records supporting the Phase I, Phase II, and Phase III 

rulemakings, as well as new information. This section summarizes new data collected 

since the promulgation of the Phase III rule in June 2006; it will not review or summarize 

previous data collection efforts except to frame discussions about the new data. For 

information on EPA’s historic data collection efforts, refer to the preambles and records 

for the three rules (see, e.g., 65 FR 49070, 66 FR 28854, 68 FR 17131, 68 FR 13524, 69 

FR 41593, 69 FR 68457, and 70 FR 71059). 

A. Additional Data

This proposal is based on data and information contained in the records 

supporting the Phase I, suspended 2004 Phase II, and Phase III rulemakings. For a more 

detailed discussion of these specific data sources, see 68 FR 17131-17135, 68 FR 13538-

13539, and 69 FR 41593-41594. In addition, EPA has supplemented the existing 

documents with additional information as summarized below. 

1. Site Visits 

 As documented in the suspended 2004 Phase II rule, EPA conducted site visits to 

22 power plants in developing the 2004 rule. See 67 FR 17134. Since 2007, EPA has 
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conducted over 50 site visits to power plants and manufacturing sites. The purpose of 

these additional visits was to: gather information on the intake technologies and cooling 

water systems in place at a wide variety of existing facilities; better understand how the 

site-specific characteristics of each facility affect the selection and performance of these 

systems; gather performance data for technologies and affected biological resources; and 

to solicit perspectives from industry representatives. EPA used a number of criteria in 

selecting the sites to visit, including those sites representing a variety of geographical 

locations, and different types of intakes, and sites that already had an impingement or 

entrainment technology in place for which the facility had collected performance data. 

EPA also asked trade associations to recommend sites posingfacing unique circumstances 

that may affect the adoption of certain control technologies. EPA also collected 

information on 7 additional facilities that staff did not physically visit; usually, these were 

other facilities owned by the parent company of a site visited by EPA. EPA also held 

conference calls or met with representatives of other sites at EPA’s Washington, D.C.

location. 

 Copies of the site visit reports (which provide an overall facility description as 

well as detailed information such as electricity generation, the facility’s cooling water 

intake structure and associated fish protection and/or flow reduction technologies, 

impingement and/or entrainment sampling and associated data, and a discussion of the 

possible application of cooling towers) for each site are provided in the docket for the 

proposed rule. In addition, in response to stakeholder inquiries, EPA made these site 

reports publicly available well before publication of the proposed rule. A list of the 

facilities visited by EPA is provided in DCN 10-xxthe TDD. 
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2. Data Provided to EPA by Industrial, Trade, Consulting, Scientific or 

Environmental Organizations or by the General Public 

 EPA has continued to exchange information with various stakeholders in the 

development of today’s proposal. EPA met several times with Electric Power Research 

Institute (EPRI), Edison Electric Institute, Nuclear Energy Institute, and Utility Water 

Act Group, along with other representatives from facilities and affected industries on 

topics ranging fromincluding the latest advancements in fish protection technologies, 

permit experience, and the feasibility and cost of installing technologies at certain types 

of facilities. 

In 2010, the North American Electric Reliability Corporation (NERC) issued a 

reliability study and found potentially substantial reliability effects under a 316(b) rule 

scenario that would require closed-cycle cooling of all large power plants. See Potential 

Resource Adequacy Impacts of U.S. Environmental Regulations. October 2010. The 

scenario assumes all existing steam units with a capacity utilization factor of less than 

35% would close3

, and assumes all in-scope electric generators would be required to 

install cooling towers within a 5 year window. While the report’s focus was on energy 

reliability and reflects a regulatory scenario that is not directly comparable to any of the 

options explored for today’s proposed rule, the report nevertheless serves as a useful 

upper bound estimate of (1) the potential for premature generating unit retirements to 

 

3 IPM analyses do not predict all units with capacity utilization rates of less than 35% would close as a 

result of a closed-cycle cooling retrofit. Thus the total loss in capacity under EPA’sEPA's Option 2 would 

be XX GW14,418 MW or XX1.3% of existing capacity.

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avoid the costs of retrofitting existing cooling water intake systems and (2) increased 

power needs as a result of a capacity derating (i.e., the energy penalty4). 

The Edison Electric Institute published a study of the combined impact of EPA’s 

upcoming air, water (316(b)), and solid waste rulemakings on the coal fired fleet of 

power plants. See Potential Impacts of Environmental Regulation on the U.S. 

Generation Fleet Final Report. January 2011. As with the NERC study, conservative 

assumptions were made about EPA rules yet to be proposed or promulgated. The report 

summarizes reductions in capacity, but does not distinguish how much of that capacity 

was unused in the baseline scenario. Conservative costing assumptions such as 21 percent 

higher average costs,5

 and application of full retrofit costs to new capacity (instead of 

incremental costs for installing required technology at new construction) gives results 

that are not comparable to any of the options explored for today’s proposed rule. While 

this study analyzed multiple scenarios, each scenario combines the effects of multiple 

rules so that the impact of the section 316(b) rule alone could not be determined. Even 

so, the report provides useful insight on the potential impact of multiple rulemakings if 

each EPA rule was promulgated at the level of stringency assumed in the study. 

EPA met with Riverkeeper and other environmental groups to discuss the 

progress of the revisions to the rule, advances in fish protection technologies, state 

programs, environmental issues associated with cooling water withdrawals, and the 

feasibility of closed-cycle cooling. Through these interactions, EPA has received 

additional data and information including, but not limited to: efficacy data, operating 

 

4

 The report assumes the total energy penalty of 4 percent is a constant; EPA believes the energy penalty is 

reduced over time as units replace, repower, or make other modifications such as condenser replacement 

that would eliminate the turbine backpressure. 

5

 EPRI’s site-specific evaluation of 82 facilities provides an average capital cost of $275 per GPM, but the 

EEI report uses $319 per GPM. 
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information, cost information, feasibility studies, environmental impacts, and non-water 

quality related impact information for various candidate BTA technologies. 

3. Other Resources 

 EPA also collected information on cooling water intake structure-related topics 

from a variety of other sources, such as state and international policies. For example, the 

California Office of Administrative Law approved the "Policy on the Use of Coastal and 

Estuarine Waters for Power Plant Cooling" on September 27, 2010, which requires that 

all coastal power plants reduce their intake flow to a level commensurate with closedcycle cooling. The Delaware state legislature passed a resolution that urges the Delaware 

Department of Natural Resources and Environmental Control (DNREC) to consider 

closed-cycle cooling as BTA and to require closed-cycle cooling at all facilities. The New 

York Department of Environmental Conservation (DEC) released a draft policy in March 

2010 that would require flow reduction equivalent to closed-cycle cooling at all existing 

facilities that withdraw more than 20 MGD as part of the state’s plan to restore the 

Hudson River. Additional examples of state programs are discussed further in the TDD. 

 In addition to state-wide cooling water policies, some recent individual NPDES 

permits have incorporated requirements for significant reductions in cooling water flow. 

For example, EPA Region I (which develops NPDES permits for several non-delegated 

New England states) issued a final NPDES permit in October 2003 that required Brayton 

Point in Somerset, Massachusetts to reduce cooling water intake flow and thermal 

discharges approximately 95 percent.6

 Brayton is currently constructing two natural draft 

cooling towers at the facility. New Jersey, as part of its policy for protecting marine life 

 

6

 See http://www.epa.gov/ne/braytonpoint/index.html. 
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from the adverse impacts created by power plants, issued a draft permit for Oyster Creek 

that would require closed-cycle cooling, and is studying closed-cycle cooling for two 

units at Salem Generating Station. Other examples are documented in site visit reports 

found in the record for today’s proposed action. 

EPA also sought information on how other nations address the impacts from 

cooling water withdrawals. The findings are detailed in a memo to the record (DCN [10-

xxx]). EPA’s review did not indicate any uniformity in the choice of technology used for 

cooling water intake structures. Initially, EPA observed that, as a general matter, many 

countries lack an overarching regulatory structure analogous to section 316(b). As a 

result, efforts to address impacts from cooling water intake structures tend to be 

somewhat inconsistent. Some countries address the issue on a facility-by-facility basis, 

while others may make broader conclusions based on facility location. EPA’s research 

did indicate an overall distribution of once-through and closed-cycle cooling systems not 

dissimilar to that found in the U.S. 

Current European Union policy on cooling systems (see DCN 10-xxx) generally 

advocates the use of plant efficiency as the primary decision criterion in determining the 

proper cooling system. Although there are several types of nuclear power reactors, only 

the Generation II Pressurized Water Reactors (PWRs) and Boiling Water Reactors 

(BWRs) are in commercial operation in the United States. Current nuclear power plants

operate below the temperatures and pressures that coal-fired plants do. This limits their 

maximum thermodynamic efficiency to 32%, in contrast to fossil fuel plants as high as 

48% efficient excluding combined cycle and cogeneration alternatives, which are even 

higher. France, Finland, and China are constructing modernized European Pressurized 
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Reactor (EPR) reactors with an efficiency expected to exceed 35%. Some advanced 

reactor designs being studied would operate at temperatures and pressures similar to 

current high efficiency coal plants, producing comparable thermodynamic efficiency.

EPA explored both energy efficiency (fuel efficiency) and water use (water efficiency) as 

possible regulatory incentives, but was not able to identify alternatives or trade-offs that 

approach the performance of closed-cycle cooling. 

Last, EPA has coordinated today’s proposed rules and the related analysis with 

recently promulgated and proposed utility-related air pollution and solid waste rules for 

the power sector from EPA’s Office of Air and Radiation (OAR) and Office of Resource 

Conservation and Recovery (ORCR). EPA ultimately expects that this comprehensive set 

of requirements that addresses all media will yield substantial health and environmental 

benefits for the public, benefits that can be achieved while maintaining a reliable and 

affordable supply of electric power across the economy. In developing these rules in a 

coordinated fashion, the Agency will be providing industry with a much clearer picture of 

what EPA will require of it in the next decade. In addition to promulgating the rules 

themselves, the Agency has engaged with other federal, state and local authorities, as 

well as with stakeholders and the public at large, with the goal of fostering investments in 

compliance that represent the most efficient and forward-looking expenditure of investor, 

shareholder, and public funds, resulting, in turn, in the creation of a clean, efficient, and 

completely modern power sector.

 Electric generators are the subject of several rulemaking efforts that either are or 

will soon be underway. In addition to this rulemaking proposal, this includes regulation

under section 110(a)(2)(D) of the Clean Air Act (CAA) addressing the interstate transport 
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of emissions contributing to ozone and PM air quality problems, coal combustion wastes, 

hazardous air pollutants under CAA section 112, and criteria pollutant NSPS standards 

under CAA section 111. They will also soon be the subject of a rulemaking under CAA 

section 111 concerning emissions of greenhouse gases. EPA recognizes that it is 

important that each and all of these efforts achieve their intended environmental 

objectives in a common-sense manner that allows the industry to comply with its 

obligations under these rules as efficiently as possible and to do so by making 

coordinated investment decisions and, to the greatest extent possible, by adopting 

integrated compliance strategies. In addition, EO 13563 states that “[i]n developing 

regulatory actions and identifying appropriate approaches, each agency shall attempt to 

promote such coordination, simplification, and harmonization. Each agency shall also 

seek to identify, as appropriate, means to achieve regulatory goals that are designed to 

promote innovation.” Thus, EPA recognizes that it needs to approach these rulemakings, 

to the extent that its legal obligations permit, in ways that allow the industry to make 

practical investment decisions that minimize costs in complying with all of the final rules, 

while still achieving the fundamentally important environmental and public health 

benefits that the rulemakings must achieve. The Agency expects to have ample latitude to 

set requirements and guidelines in ways that can support the states’ and industry’s efforts 

in pursuing practical, cost-effective and coordinated compliance strategies encompassing 

a broad suite of its pollution-control obligations.

B. Implementation Experience

 Following promulgation of the 2004 Phase II rule, states and EPA Regions began 

to implement the rule. During that time, EPA worked to assist states in understanding the 

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rule requirements, develop guidance materials, and support review of the documentation 

of the new requirements. As a result, EPA became aware of certain elements of the 2004 

rule that were particularly challenging or time-consuming to implement. In developing 

today’s proposed rule, EPA has considered these challenges and crafted a revised 

regulatory framework that the Agency believes is easier for all stakeholders to understand 

and implement. Some of the key changes are described below. 

1. Calculation Baseline 

 The 2004 Phase II rule required that facilities reduce impingement mortality and 

entrainment from the calculation baseline. The calculation baseline was intended to 

represent a “typical” Phase II facility and outlined a configuration for a typical CWIS. 

(See 69 FR 41590.) EPA defined the calculation baseline as follows: 

“an estimate of impingement mortality and entrainment that would occur 

at your site assuming that: 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 traveling screen is 

oriented parallel to, the shoreline near the surface of the source waterbody; 

and the baseline practices, procedures, and structural configuration are 

those that [a] facility would maintain in the absence of any structural or 

operational controls, including flow or velocity reductions, implemented 

in whole or in part for the purposes or reducing impingement mortality 

and entrainment.” 

In doing so Under this approach, a facility that had undertaken efforts to 

reduce impingement and entrainment impacts (e.g., by installing a fine mesh screen or 

reducing intake flow) would be able to “take credit” for its past efforts and only be 

required to incrementally reduce impingement mortality or entrainment to meet the 

performance standards. 

 In practice, both permittees and regulatory agencies encountered difficulty with 

the calculation baseline, specifically how a facility should determine what the baseline 
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represented and how a particular facility’s site-specific configuration or operations 

compared to the calculation baseline. For facilities whose site configuration conforms to 

the calculation baseline, it was relatively easy to determine impingement mortality and 

entrainment at the conditions representing the calculation baseline. However, for 

facilities that have a different configuration, estimating a hypothetical calculation 

baseline could be difficult. For example, facilities with intake configuration that differed 

significantly from the calculation baseline (e.g., a submerged offshore intake) were 

unsure as to how to translate their biological and technological data to represent the 

calculation baseline (a shoreline CWIS.). Oftentimes facilities encountered difficulty in 

determining the appropriate location for monitoring to take place. Other facilities were 

unsure as to how to take credit for retired generating units and other flow reductions 

practices. In site visits, EPA learned that facilities with little or no historical biological 

data encountered a particularly difficult and time-intensive task of collecting appropriate 

data and developing the calculation baseline. For example, EPA found that for some sites 

impingement was very difficult to convert into a baseline, as facilities needed to predict 

which fish would be impinged and then further estimate which of those impinged 

organisms survived. As a result, EPA has developed a new approach to the technologybased requirements proposed today that does not incorporateuse a calculation baseline. 

2. Entrainment Exclusion Versus Entrainment Survival 

 As EPA worked towards revising the existing facility rules, EPA discovered a 

nuance to the performance based requirements of the 2004 Phase II rule: entrainment 

exclusion versus entrainment survival. As discussed in section III.C below, EPA rereviewed the data on the performance of intake technologies and conducted statistical 
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analysis of the data. From this analysis, it became apparent that the 2004 Phase II rule 

did not fully consider the true performance of intake technologies in affecting 

“entrainable” organisms. 

 By definition, entrainment is the incorporation of aquatic organisms into the 

intake flow, which passes through the facility and is then discharged. In order to pass 

through the technologies located at the CWIS (e.g., intake screens, nets, etc.), the 

organisms must be smaller than the smallest mesh size.7

 For coarse mesh screens (3/8” 

mesh size), most “entrainables” simply pass through the mesh (and through the facility) 

with only some contact with the screen.8

 In this situation the mortality of organisms 

passing through the facility was assumed to be 100 percent. However, as mesh sizes are 

reduced,9 more and more entrainables will actually become impinged on the screens (i.e., 

“converted” from entrainable to impingeable) and would then be subjected to spray 

washes and returnreturned along with larger impinged organisms as well as debris from 

the screens. Under the 2004 Phase II rule, these “converts” would be classified as a 

reduction in entrainment, since the entrainment performance standard simply required a 

reduction in the number (or mass) of entrained organisms entering the cooling system. 

However, for some facilities the low survival rate of converts resulted in the facility 

havehaving difficulty complying with the impingement mortality limitations. By 

comparison, the performance standard for impingement was measured as impingement 

mortality. Organisms that were impinged (i.e., excluded) from the CWIS were typically 

 

7

 In the case of many soft-bodied organisms such as eggs and larvae, the force of the intake flow can be 

sufficient to bend organisms that are actually larger than the screen mesh and pull them into the cooling 

system. 

8

 Eggs are generally smaller than 2 millimeters in diameter, while larvae head capsids are much more 

variable in size, increasing as they mature to the juvenile stage. 9

 Fine mesh screens were considered to be one technology that could be used to meet the entrainment 

performance standards under the 2004 Phase II rule. EPA also reviewed performance data for screens with 

mesh sizes as small as 0.5 mm, as described in section III.C. 
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washed into a return system and sent back to the source water. In this case, impingement 

mortality is an appropriate measure of the biological performance of the technology. 

 Through EPA’s review of control technologies, the Agency found that the 

survival of “converts” on fine mesh screens was very poor, and in some extreme cases 

comparable to the extremely low survival of entrained organisms that are allowed to pass 

entirely through the facility.10 More specifically, EPA found that nearly 100 percent of 

eggs were entrained unless the mesh slot size was less than 2 mm, and mortality of eggs 

“converted” to impingement ranged from 20 to 30 percent. More tellingFurther, the 

mortality of larvae collected from a fine mesh screen was usually greater than 80 percent. 

As a result, a facility with entrainment exclusion technologies such as fine mesh screens 

could approach 90 percent performance, but the subsequent survival of these 

organismseggs and larvae combined ranged from 0 to 52 percent (mean value of 12 

percent survival) depending on life stage and species, and the facility’s impingement 

mortality rates increased. In other words, a facility that simply excluded entrainable 

organisms (with no attention being paid to whether they survive or not) could be deemed 

to have met its entrainment requirements under the 2004 Phase II rule, when in fact it 

may be causing the same level of mortality as a facility with no entrainment controls at 

all. EPA’s current review of entrainment and entrainment mortality shows the same 

trends identified in the research reviews by EPRI (2003), namely that entrainment 

decreases with increasing larval length, increased sweeping flow, decreasing slot (intake) 

velocity, and decreasing slot width. In other words, by using screens with finer mesh, 

 

10 Through-plant entrainment survival has been studied extensively, with EPRI’s Review of Entrainment 

Survival Studies being amongst the most comprehensive. See DCN 2-017A-R7 from the Phase I docket. 
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entrainment mortality can be converted to impingement mortality without necessarily

protecting any more aquatic organisms.

3. Cost-Cost Test 

 In the 2004 Phase II rule, EPA developed facility-specific cost estimates, and 

published those costs in Appendix A (69 FR 41669). The 2004 Phase II rule also 

included a cost-cost test (see 69 FR 41644) where a facility could demonstrate that its 

costs to comply with the 2004 rule were significantly greater than those that EPA had 

considered. Since initial implementation of the July 9, 2004 316(b) Phase II rule, EPA 

has identified several concerns with the facility-specific cost as well as the use of that 

cost costs listed in Appendix A and their use in the cost-cost test. First, EPA has 

identified numerous inconsistencies between facility permit applications, responses in the 

facility's 316(b) survey, and overall plant capacity as reported in the most recent EIA 

database. These inconsistencies resulted in Appendix A costs that were based on 

important parameters that were distinctdifferent from the facility’s own compliance cost 

estimates due to inconsistencies in the underlying parameters used to estimate these costs. 

In addition, as described more fully in Chapter 2 of this proposal’s Technical 

Development Document, EPA does not have available technical data for all existing 

facilities. EPA obtained the technical data for facilities through industry questionnaires. 

In order to decrease burden associated with these questionnaires, EPA requested detailed 

information from a sample, rather than a census, of facilities. EPA has thus concluded 

that the costs provided in Appendix A are not appropriate for use in a facility-level costcost test. Moreover, underfor most of the national requirements EPA is proposing here, a 

cost-cost variance is not necessary for the reasons described below. As a result, EPA is 
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not providing a framework similar to Appendix A in today’s proposed rule.11 (See section 

III.C below and VII for more information about how EPA developed compliance costs.) 

First, the impingement mortality requirements of today’s proposed rule are 

economically achievable12, and the low variability in the costs of impingement mortality 

controls at a facility makes such a provision unnecessary. Second, a cost-cost variance is 

not necessary for entrainment mortality requirements because the costs of various 

requirements are a factor considered in theeach site-specific determination. Under the 

national rule, entrainment requirements would be established on a facility specific basis., 

except in the case of new units at an existing facility, which are subject to standards 

based on closed-cycle cooling or its equivalent. In the facility-specific process proposed 

today for entrainment mortality, a facility would be required to submit facility-specific 

compliance cost estimates. The determination of whether the cost of specific entrainment 

mortality technologies is too high is made by the Director on a case-by-case basis and 

accordingly a cost-cost provision is unnecessary for these facilities. However, consistent 

with the Phase I rule, EPA has included a provision for new units at existing facilities that 

the Director may establish less stringent alternative requirements for a facility if 

compliance with the Phase I standards would result in compliance costs wholly out of 

proportion to those EPA considered in establishing the Phase I requirements or would 

result in significant adverse impacts on local air quality, water resources other than 

impingement or entrainment, or local energy markets. 

C. New or Revised Analyses

 

11 There is a form of “cost-cost variance” for new units at existing facilities, comparable to the provision in 

Phase I for new facilities. See further discussion below.

12 The Phase II rule found impingement mortality (plus entrainment exclusion on certain waterbodies) was 

economically achievable; EPA has not identified any reason for revising this conclusion. See XX69 FR 

XXXX41603. 
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 In addition to collecting new information, EPA has re-evaluated some existing 

data and analyses that underlay its earlier decisions. The standards of the 2004 Phase II 

regulation required impingement mortality reduction for all life stages of fish and 

shellfish of 80 to 95 percent from the calculation baseline (for all Phase II facilities) and 

entrainment reduction requirements of 60 to 90 percent (for certain Phase II facilities). 

EPA based these performance requirements on a suite of technologies and compliance 

alternatives. For today’s proposal, EPA has reanalyzed various candidate technologies as 

the basis for EPA’s BTA decision. This reanalysis includes, but is not limited to, a reanalysis of candidate BTA technologies, their effectiveness, their costs, and their 

application. This section highlights some of the results from this re-analysis. See Section 

VI for a thorough discussion of EPA’s updated BTA analysis and determination. Based 

on this reanalysis, EPA has reached several conclusions. The first is that closed-cycle 

cooling reduces impingement and entrainment mortality to the greatest extent. The 

second is that screen technologies are significantly less effective, particularly in 

comparison with closed-cycle cooling, in reducing entrainment mortality than EPA had 

concluded in 2004. Finally, EPA founddetermined that while none of the reviewed 

technologies cause unacceptable energy reliability concerns, particulate emission 

increases, or adverse economic impacts at the national level, the performance and 

availability of some technologies varies widely depending on local factors., and these 

issues could be a significant concern at individual sites. 

1. Revised Performance Database 

 In its Section 316(b) rule development efforts to date, EPA has gathered industry 

documents and research publications with information from studies which evaluated the 
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performance of a range of technologies for minimizing impingement or entrainment. As 

explained in 68 FR 13538-13539, EPA previously developed a Technology Efficacy 

Database in an effort to document and assess the performance of various technologies 

and operational measures designed to minimize the impacts of cooling water withdrawals 

(see DCN 6-5000 in the docket for the 2004 Phase II rule). In support of today’s 

proposal, EPA has updated that performance database. In updating the database, EPA’s 

objective was to review the methods used to generate data in these studies and to 

combine relevant data across studies in order to produce statistical estimates of the 

overall performance of each of the technologies. 

 In developing the updated database, EPA considered data from over 150 

documents. This includes documents previously contained in all three phases of EPA’s 

316(b) rulemaking records as well as new documents obtained during development of 

today’s proposal. These documents contain information on the operation and/or 

performance of various forms and applications of these technologies, typically at a 

specific facility or in a controlled setting such as a research laboratory. The studies 

presented in these documents were performed by owners of facilities with cooling water 

intake structures, organizations that represent utilities and the electric power industry, and 

other research organizations. EPA established two general criteria for using data from the 

documents: 1) the data must be associated with technologies for minimizing impingement 

mortality or entrainment13 that are currently viable (as recognized by EPA) for use by 

industries with cooling water intake structures that are (or will be) subject to Section 

316(b) regulation; and 2) the data must represent a quantitative measure (e.g., counts, 

 

13 There were insufficient numbers of studies specifically looking at entrainment mortality or entrainment 

survival, therefore EPA broadened the review to include any measure of entrainment.
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densities, or percentages) that is related to the impingement mortality or entrainment of 

some life form of aquatic organisms within cooling water intake structures under the 

given technology. 

 For studies meeting the above criteria, EPA populated a new database. This 

performance study database consisted of two primary data tables. The first table contains 

specific information on a particular study, such as the document and study IDs, facility 

name, water body, data classification (e.g., impingement mortality, entrainment), 

technology category, and other test conditions when specified (e.g., mesh size, intake 

velocity, flow rate, water temperature, conditions when the technology is in place, control 

conditions). The second table contains the reported performance data for a given study. 

Each row of this table contains one or more performance measures for a particular 

species along with other factors when they were specified (e.g., age category, dates or 

seasons of data collection, water temperature, velocity, elapsed time to mortality). For 

one option considered for today’s proposed rule, EPA used this database in an attempt to 

revise the impingement mortality and entrainment limits developed for the Phase II rule. 

However, as described in section VI, the performance data for screens and other intake 

technologies indicates that those technologies were not very effective at minimizing 

entrainment mortality in comparison to closed-cycle cooling. As a result, EPA has not 

included this option in today’s proposed rule package.

2. Impingement Mortality and Entrainment Technology Performance Estimates 

 To evaluate the effectiveness of different control technologies and the extent to 

which the various regulatory options considered for today’s proposal minimize adverse 

environmental impacts associated with cooling water intake structures, EPA used the data 
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collected in the revised performance database to develop impingement mortality and 

entrainment reduction estimates associated with each technology. For some technologies, 

this proposal reflects updated information or a different methodology for estimating 

effectiveness. For impingement mortality, EPA focused on 14 studies of 31 species for 

traveling screens with post-Fletcher modifications and with a 48 hour14 or less holding 

time, and found the monthly impingement mortality corresponding to the 95th percentile 

was 31 percent mortality. EPA’s full analysis of impingement mortality limitations may 

be found in Chapter XI of the TDD. EPA found the best performance of entrainment 

exclusion for fine mesh screens was 73 to 82 percent for eggs and 46 to 52 percent for 

larvae at 0.5 mm slot sizes. The overall arithmetic mean value for entrainment exclusion 

of both eggs and larvae was 41 percent. The best performance of fine mesh screens for 

entrainment survival (and not just exclusion) was 29 to 34 percent, with zero survival of 

eggs and larvae under certain conditions. The next section further discusses the 

distinction between entrainment exclusion and entrainment survival. 

3. Exclusion Technologies 

 As discussed in section III.B above, screens and other technologies operate using 

a principle of excluding organisms from entering the cooling system. For technologies 

other than cooling towers, EPA generally calculated their efficacy as the mean percent 

efficacy of the available data. Because EPA has sufficient data to evaluate impingement 

mortality, its impingement mortality technology efficacy calculation accounts for 

mortality. However, because EPA has data on entrainment exclusion but lacks sufficient 

entrainment mortality data to calculate exclusion technology entrainment mortality 

 

14 Holding times beyond 48 hours often result in mortality due to holding conditions rather than mortality 

due to impingement. 
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efficacy, EPA’s calculated mean entrainment percent efficacy does not account for 

mortality. Available data on today’s proposed technology basis demonstrate that 

entrainment reductions associated with fine mesh technologies vary depending on life 

stage and mesh size. See Section VIII and the TDD for additional information on EPA’s 

estimate of entrainment reductions for today’s proposal.

In reality, whether or notexcluding an organism is excluded from the cooling 

water intake does not minimize entrainment-related adverse environmental impacts 

unless the excluded organisms survive and ultimately return back to the waterbody. 

Available data on today’s proposed technology basis demonstrate that entrainment 

reductions associated with fine mesh technologies vary depending on life stage and mesh 

size. See DCN xxx and Section VIII for additional information on EPA’s estimate of 

entrainment reductions for today’s proposal.

In the 2004 Phase II rule, EPA made the assumption that any entrainable 

organism which was entrained died (i.e., 100 percent mortality for organisms passing 

through the facility) and any organism not entrained survived. In other words, if a 

technology reduced entrainment by 60 percent, then EPA estimated 40 percent of the 

organisms present in the intake water would die in comparison to 100 percent in the 

absence of any entrainment reduction. As explained in Section VI, while it has been 

conjectured that certain species of eggs have been shown to survive entrainment under 

certain conditions, EPA has not received any new data for either the most common 

species or the most frequently identified species of concern described in available studies 

and, as such, has not altered its conclusiondecision that for purposes of national 

rulemaking, entrainment generally leadsshould be presumed to lead to 100 percent 
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mortality. Today’s proposed rule would allow facilities to demonstrate, on a site-specific 

basis, that entrainment mortality of one or more species of concern is not 100 percent. 

 For today’s proposal, EPA analyzed the limited data on the survivability of 

organisms that are “converted” from entrained to impinged on fine mesh screens. These 

data show that under most operational conditions, many larvae die as a result of the 

impact and impingement on fine mesh screens. In the case of eggs, the data indicate that 

some species may die, but some do survive. The data also demonstrate that if the 

organisms can withstand the initial impingement on the fine mesh screen, the majority of 

entrainable organisms survive after passing through a fish return and returning to the 

source water. Finally, the data indicate that survival increases as the body length and age 

of the larvae increases15. EPA seeks additional data on the survivability (or mortality) of 

organisms that are converted from entrained to impinged on fine mesh screens.

4. Application of Requirements Based on Capacity Utilization Rate (CUR) and 

Waterbody Type 

 In the 2004 Phase II rule, the type of performance standard applicable to a 

particular facility (i.e., reductions in impingement mortality only or impingement 

mortality and entrainment) depended on several factors, including the facility’s location 

(i.e., source waterbody), capacity utilization rate (CUR) (as an indicator of the rate of 

use), and the proportion of the source waterbody withdrawn. EPA’s reanalysis of 

impingement and entrainment data does not support the premise that the difference in the 

density of organisms between marine and fresh waters justifies different standards. More 

 

15 EPA found this is a very important distinction when reviewing technology efficacy, as some studies do 

not include the smaller, more fragile, and often non-motile stages of larvae. Older stages of larvae have 

started to develop avoidance responses, and generally have already started developing scales and skeletal 

structures. 
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specifically, the average numberdensity of organisms in fresh waters may be less than 

that found in marine waters, but the actual numberdensity of aquatic organisms in some 

specific fresh water systems exceeds that found in some marine waters. In other words, 

there is considerable overlap in the range of densities found in marine waters and in fresh 

waters. EPA also believes the different reproduction strategies of freshwater versus 

marine species makes broad characterizations regarding the density less valid a rationale 

for establishing different standards for minimizing adverse environmental impact. 

In re-considering the applicability of requirements based on CUR, EPA found that 

even infrequently used facilities may still withdraw significant volumes of water when 

not generating electricity. EPA also found that load-following and peaking plants operate 

at or near 100 percent capacity (and therefore 100 percent design intake flow) when they 

are operating, and these operations occur frequently during peak summer electricity 

demand, coinciding with some of the most biologically sensitive portions of the year.16 

Accordingly, today’s proposed requirements are not based on waterbody type or CUR. 

See further discussion in Section VI. 

IV. Revised Industry Description 

 Today’s proposed rule applies to all existing electric generating and 

manufacturing facilities, except for certain water going vessels as described in section V. 

EPA has earlier fully described the electricity industry in the 2002 Phase II proposed rule 

 

16 See DCN 10-xxx.16 Some facilities continue to withdraw cooling water even when not generating for a 

variety of reasons: to discourage biofouling or mechanical seizures, to promote continued water flow, or to 

maintain a state of readiness. Peaking facilities (those with a CUR of less than 15percent, as defined in the 

2004 Phase II rule) may withdraw relatively small volumes on an annual basis, but if they operate during 

biologically important periods such as spawning seasons or migrations, then they may have nearly the same 

adverse impact as a facility that operates year round. 

Formatted: Indent: First line: 0.5"
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(see, for example, 67 FR 17135) and the manufacturing industries in the 2004 Phase III 

proposed rule (see, for example, 69 FR 68459).17 While these general descriptions 

continue to broadly reflect the current state of these industries, EPA has revised some of 

its estimates of numbers of facilities, intakes, flows, and other pertinent information. In 

particular, this section describes those facilities with a cooling water intake structure 

having a DIF of greater than 2 MGD, related cooling water use in power production and 

manufacturing activities, and an overview of the industry sectors in scope for today’s 

proposed rule. See the TDD and EA for today’s proposed rule for more detailed 

information including industry profiles. 

A. Water Use in Power Production and Manufacturing

 Water is used for a wide variety of application in the United States. The U.S. 

Geologic Survey (USGS) publishes a comprehensive review of water use across industry 

sectors every 5 years. The 2005 report indicated that 410 billion gallons per day (BGD) 

of water are withdrawn for various uses. (See DCN 10-xxx6872.) Of that amount, 

approximately 201 BGD is withdrawn by electric generators, primarily for non-contact 

cooling,18 plus water withdrawals by other industrial sites of 18.2 BGD for a total of 219 

BGD. This total flow represents the universe of flow potentially subject to regulation 

under 316(b), therefore today’s proposed rule may address over half of the water 

withdrawals in the entire nation.19 

 

17 EPA also addressed both electric generators and manufacturers in the 2000 Phase I proposed rule (see, 

for example, 65 FR 49070). The support documents for all three rule phases also provide information 

characterizing the affected industry sectors. 

18 Irrigation was the next highest user of water at 31% of the total withdrawn. 19 In the Phase I rule, EPA also presented data indicating that the combined 316(b) rules for electric 

generators and the largest manufacturing sectors would address approximately 99% of all cooling water 

withdrawals in the U.S. See 65 FR 49071 and the Phase I Economic and Engineering Analyses of the 

Proposed §316(b) New Facility Rule.
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 Industrial water use (broadly defined as water used by power plants and 

manufacturers) falls generally into one of four categories: non-contact cooling water, 

contact cooling water, process water, and other water uses. A more detailed description 

of each category and how it relates to 316(b) is provided below. 

1. Non-contact cooling water 

 Power plants and manufacturers frequently generate large amounts of heat in their 

industrial processes. Non-contact cooling systems are one of the most common 

techniques used to dissipate this heat. In a non-contact cooling system, water is pumped 

through a heat exchanger or other equipment where it comes into indirect contact with 

heated materials in the industrial process. The water absorbs heat and is subsequently 

discharged (in a once-through cooling system) or recirculated (in a closed-cycle system). 

In these systems, the cooling water does not come into contact with any industrial 

materials, equipment or processes; the cooling water is contained within the cooling 

system for heat absorption and generally requires very little treatment (except heat 

removal) before discharge. 

 At power generators, non-contact cooling is by far the largest water use. 

Approximately three quarters of the total annual electricity output in the United States 

results from steam powered turbines. Power plants heat water inside a boiler. The water 

is turned to steam, at which point the temperature of the steam can be increased with 

further heating, allowing additional energy to be stored in the steam. The steam is then 

used to spin a turbine, producing electricity. The steam must then be condensed and 

returned to the boiler20. Non-contact cooling water is used to extract heat and return the 

 

20 The thermodynamic laws governing the Rankine cycle in power plants requires a heat source and a heat 

sink. The difference in temperature and pressure is a major factor in maintaining efficiency of the thermal 
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steam to water in a condenser. The water can then be pumped back to the boiler for 

heating to repeat the cycle. Consistent with engineering theory, there are limits to the 

maximum efficiency of a thermal plant. Thermal power plants are actually not very 

efficient at converting fuel to electricity; only 30 to 60 percent of the fuel is captured as 

electricity, with the higher efficiency units relying on further use of the steam for further 

heating (usually referred to as cogeneration) or energy purposes (such as combined cycle 

power generators or other process warming). Depending on the type of generating unit, 

roughly one-third to two-thirds of the total energy generated is lost in the form of heat 

that must be subsequently dissipated. 

 At manufacturers, non-contact cooling is also a significant component of water 

use. Some manufacturers have electric generating units which generally operate in the 

same manner as summarized above. In some cases, virtually all of the manufacturing 

facility’s cooling water withdraws are for power production. In contrast to power 

generators, some manufacturing facilities also need a reliable source of high pressure 

steam for manufacturing processes. Other manufacturers may need to condense steam 

generated from other processes, or may need to extract heat from a raw or processed 

material (e.g., to reduce the temperature of an intermediate petroleum or chemical 

product before it enters a subsequent processing stream). Some facilities engage in testing 

or research, and have cooling needs for these activities. 

2. Contact cooling water 

 Contact cooling water differs from non-contact cooling in that contact cooling 

systems use cooling water in direct contact with the hot equipment or heated materials. 

 engine. Additional reasons for condensing the steam include: handling pressure drops in the system, the 

need to remove non-condensable gases before they damage equipment, to allow make-up water to be added 

to the system, and to safely allow pumping of the water back to the boiler. 
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As a result, contact cooling water may intermingle with industrial products or equipment 

and often will take up pollutants other than heat, such as oil and grease or metals. 

Contact cooling water often requires treatment for these pollutants before it may be 

discharged. 

 In power plants, cooling water may be used for contact cooling of pumping 

equipment, such as the cooling water pump bearings. Contact cooling water is more 

frequently needed by manufacturing processes, such as quench water (e.g., water into 

which bars of hot metal are dipped for rapid cooling or control of the formed metal 

temperature), mechanical pulping, forming and molding processes, food and agricultural 

products, and petrochemical gas quenching. 

3. Process water 

 Process water is water that is incorporatedused directly intoin an industrial 

process and is an integral part of the final product. While steam electric plants do have 

some process water, process water is more typically associated with manufacturers, as the 

primary industrial process at power plants (electricity generation) is usually cooled with 

non-contact cooling water. Examples of process water include water used to break down 

wood pulp in a paper mill, water that is used in creating consumer products such as 

beverages or personal care products, water added to facilitate transportation of materials 

within a manufacturing process, water needed as a raw material, and water used in 

numerous chemical separations processes. Process water may be used as an ingredient in 

the intermediate products, consumed by the products, lost to evaporation, or extracted 

later in the process line for treatment and discharge, or further reused. 
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 EPA has found through site visits, extensive experience with manufacturing water 

use in the development of previous effluent guidelines, and a general review of water 

uses by manufacturing processes that a significant amount of reduction, reuse, and 

recycling has already occurred in most manufacturing processes, in part due to 

pretreatment standards and NPDES permit conditions. Beyond these reductions, today’s 

proposed rule recognizes that many industrial facilities have worked to reduce the volume 

of process water usage at their sites and to increase the reuse of process water for other 

purposes within the facility. A leading facility or an entire industry may have evolved to 

use less process water in theirits industrial process. For example, EPA has found some 

facilities have undergone plant wide energy audits to reduce their energy needs by up to 

25 percent, providing a roughly 25 percent reduction in cooling water needs (see DCN 

xx-xxx).. One analysis of paper mills estimates that over 39 billion gallons daily of water 

is recycled and not used solely for cooling purposes by a typical mill. Further, there has 

been a 69 percent reduction in the average volume of treated effluent at pulp and paper 

mills (see DCN xx-xxx). As a consequence of10-6902). In response to effluent 

guidelines discharge limitations established on a per pound of product basis,, some

facilities have reduced their compliance costs by reducing the volume of wastewater they 

must treat. Other regulatory efforts (such as Some effluent limitation guidelines) may

have also established explicit requirements for flow reduction. In the case of iron and 

steel facilities, effluent limitations require no discharge of process wastewater pollutants 

(for example, see 40 CFR 420 Subpart D Steelmaking). As another observed example of 

the recycling of process water, a facility might use non-contact cooling water for 
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condensing steam, but then reuse the heated water for washing raw materials instead of 

discharging the water. 

 See section V for more information on how water reuse and conservation efforts 

are considered in compliance alternatives offor today’s proposed rule. 

4. Other uses 

 Given the diversity of industrial processes across the U.S., there are many other 

industrial uses of water not intended to be addressed by today’s proposed rule. 

Emergency water withdrawals, such as fire control systems and nuclear safety systems, 

are not considered as part of a facility’s design intake flow. Warming water at liquefied 

natural gas terminals, and hydro-electric plant withdrawals for electricity generation are 

not cooling water uses and are not addressed by today’s proposal. Other water uses 

might include service water and dilution water. Service water is a generic term that often 

refers to uses other than non-contact cooling (i.e., it may include contact cooling), but can 

also include specialty water uses such as makeup water for radiation waste systems at 

nuclear power plants. Examples of dilution water are withdrawingusing water to reduce 

the concentration of a pollutant for biological treatment purposes, or to reduce the 

temperature of an effluent. 

B. Overview of Electric Generators

In the Phase I proposal, EPA described its rationale for setting the threshold for 

section 316(b) national requirements at 2 MGD. As described in that proposed rule, EPA 

selected 2 MGD to ensure that almost all cooling water withdrawn from waters of the 

U.S. is covered by a national regulation. The Agency recognized that there was relatively 

little information currently available regarding the lower bound of withdrawals at which 
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significant levels of impingement and entrainment and, therefore, adverse environmental 

impact, was likely to occur. At the time, most case studies available to the agency 

documenting impingement and entrainment from cooling water withdrawals focused on 

facilities withdrawing very large amounts of water (in most cases greater than 100 

MGD). After soliciting comment and data on several different thresholds, the Agency 

adopted 2 MGD in the final rule. 66 FR 65288. 

While the overview of the electric generating facilities in the previous Phase II 

and III proposed and final rules has not changed substantially, this section combines 

those multiple industry profiles into one overview. The information below is generally 

based on data from the U.S. Department of Energy’s (DOE) “Annual Electric Generator 

Report” (Form EIA-860) and “Annual Electric Power Industry Report” (Form EIA-861), 

and EPA’s Section 316(b) Industry Surveys. According to the 2007 EIA database, 38 of 

the 671 facilities have ceased operation since the Survey and 15 facilities will likely do so 

by the time today’s proposed rule is promulgated (i.e., 2012). EPA also excluded 20 

electric generators that are already required by state policy to comply with standards 

based on closed-cycle cooling, and thus for regulatory analysis purposes are not expected 

to be affected by the proposed rule. In addition, 39 facilities are projected to be baseline 

closures according to Integrated Planning Model analyses (see Section VII of this 

preamble and Chapter 6 of the EA for discussion of IPM analysis).21 Based on (1) data 

collected from these Surveys; (2) the compliance requirements in today’s proposed rule, 

and (3) the in-scope threshold of 2 MGD DIF (see section V for further explanation of the 

 

21 For the purpose of this analysis, a facility is considered no longer in operation and retired if it no longer 

has any steam operations. 
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2 MGD threshold), EPA has therefore identified 559 Electric Generators that are in scope 

of today’s 316(b) Existing Facilities Proposed Rule.22,23 

 EPA estimates that the 559 steam electric generators represent 3 percent of all 

parent-entities, approximately 11 percent of all facilities, and over 45 percent of the 

electric power sector capacity. Based on the 2007 EIA database, EPA estimates that 388 

of these in-scope facilities are owned by utilities and 171 in-scope facilities are owned by 

non-utilities.24 The majority of electric generating facilities expected to be subject to 

today’s proposed Existing Facilities rule, or 285 facilities, are investor-owned utilities, 

while nonutilities make up the second largest category. In-scope investor-owned and 

cooperative facilities represent the largest shares of their respective industry totals at 

approximately 26 percent and over 15 percent. (For a detailed discussion of parententities, see Chapter 5 and 7 of the EA (DCN 10-0002; EPA-xxx.). 

 As reported in Exhibit IV-1, approximately half of the in-scope electric generators 

draw water from a freshwater river (306 facilities or 55 percent), followed by lakes or 

reservoirs (117 facilities or 21 percent) and estuaries or tidal rivers (83 facilities or 15 

percent). The exhibit also shows that most of the in-scope facilities (355 facilities or 63 

percent) employ a once-through cooling system. 

Exhibit IV-1: Number of In-Scope Electric Generators by Waterbody and CoolingSystem Typea

 

22 EPA developed the estimates of the number and characteristics of facilities expected to be within the 

scope of today’s proposed rule, based on the facility sample weights that were developed for the suspended 

2004 Phase II Final Regulation analysis. These weights provide comprehensive estimates for the total of 

expected in-scope facilities based on the full set of facilities sampled in the Section 316(b) Industry 

Surveys. See Appendix 3.A: Weighting Concepts of the Economic and Benefits Analysis report for further 

discussion of the sample weights used in this analysis. 

23 EPA estimates of the characteristics of facilities expected to be within the scope of today’s proposed rule 

are also based on the facility sample weights that were developed for the suspended 2004 Phase II Final 

Regulation analysis. 

24 Electric utilities engage in the generation, transmission, and the distribution of electricity for sale 

generally in a regulated market. Utilities include investor-owned, publicly-owned, and cooperative entities. 

Formatted: Superscript
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Waterbody Type 

Recirculating Once-Through Combination Other Totalb

Number Number Number Number Number 

Estuary/Tidal River 5 69 8 1 83

Ocean 0 9 0 0 9

Lake/Reservoir 36 73 7 1 117

Freshwater 

Stream/River 102 166 32 5 306

Great Lake 4 37 2 0 43

Total 148 355 49 7 559 

a. The numbers of facilities are calculated on a sample-weighted basis. 

b. Individual values may not sum to totals due to independent rounding. 

C. Overview of Manufacturers

 EPA obtained information on in-scope Manufacturers presented in the tables 

below from the EPA’s Section 316(b) Industry Surveys (the Industry Screener 

Questionnaire (SQ) and the Industry Detailed Industry Questionnaire (DQ)). Based on the 

Survey data and the compliance requirements in today’s proposed rule, EPA estimates 

592 industry facilities with greater than 2 MGD DIF would be subject to today’s 

proposal; 575 of these facilities are in the 6 primary manufacturing industries.25

 Exhibit IV-2 below presents in-scope and industry-wide facility and parent entity 

counts by industry. The majoritylargest share of manufacturers, or 225 facilities, areis in 

the Pulp and Paper industry, while facilities in the Chemicals and Allied Products make 

up the second largest category at 179 facilities. 

 

25 The remaining 17 facilities have NAICS codes that do not fall into any of these six primary 

manufacturing industries. 
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Exhibit IV-2: Existing Manufacturers by Industry

Sector 

Number of Facilities 

Sector Total 

Number In-Scopeb,c

Aluminum 333 26 

Chemicals 4,433 179

Food 28,938 37 

Paper 597 225

Petroleum 352 39 

Steel 1,525 68

Total 36,178 574a575a

a. . In-scope facility counts include baseline closures and exclude an estimated additional 17 facilities 

with NAICS codes that do not fall into any of these six primary manufacturing industries. 

b. Number of in-scope facilities are weighted estimates; see Appendix 3.A of the EA for information 

on weights development. Individual values may not sum to totals due to independent rounding of 

sample-weighted (non integer) estimates.

c. These facility count estimates are based on sample weights that are applicable for estimating the 

number of facilities that would be within the scope of today’s proposed rule. However, because of 

missing financial data on certain facilities, these weights were not used in assessing the economic 

impact of the rule. Alternative weights, which yield modestly different total in-scope facility estimates 

(e.g., 569 in-scope facilities in the Primary Manufacturing Industries instead of the 575 reported in 

this table), were used for developing facility count estimates in the economic impact analysis.

 Exhibit IV-3 provides the distribution of manufacturing intakes by source water 

body and cooling system type. In total, EPA estimates that 593 intakes will be within the 

scope of today’s rule. The vast majority (453 facilities or 7677 percent) withdraw 

cooling water from freshwater streams or rivers, followed by Great Lakes (4647

facilities). Two hundred eighty-sixseven (48 percent) manufacturers employ oncethrough cooling systems, 118 (21119 (20 percent) use closed-cycle cooling systems, and 

126124 (21 percent) use “combination” systems. An estimated 192 (32 percent) 

manufacturers have installed one or more cooling towers. In the total of 593 

facility/intake combinations, EPA does not have information on the cooling water system 

type for 4 facilities/intakes. Note that not all manufacturers that have installed a cooling 

tower are classified as using closed-cycle cooling systems, as facilities with multiple 

cooling water systems may be “combination” systems that employ both closed-cycle and 

once-through cooling. Manufacturers may also list “helper” cooling towers in their 
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survey responses, which are generally used to mitigate discharge temperatures and do not 

necessarily affect intake flows. The estimates in Exhibit IV-3 are based on the 

predominant cooling water system at each facility.

Exhibit IV-3: Number of In-Scope Manufacturers by Waterbody and CoolingSystem Type

Waterbody Type 

Recirculatingb Once-Through Combination Other Type Unknown Totala

Number Number Number Number Number Number

Estuary/Tidal 

River 1 23 16 0 0 40 

Ocean 0 11 0 0 0 11 

Lake/Reservoir 7 13 12 11 430 42

Freshwater 

Stream/River 110111 214215 8482 4041 4 453 

Great Lake 0 25 14 7 460 47

Total 118119 286287 126124 5859 4 593 

a Facility counts include baseline closures and exclude 17 facilities with NAICS codes that do not fall into the six 

primary manufacturing industries (see Chapter 3 of EA for more detail). Individual facilities may be reported more than 

once in this table if they have multiple intakes with different operating configurations.while a single intake that serves 

both recirculating and once-through systems is counted once as a combination. Individual values may not sum to totals 

due to independent rounding. of sample-weighted (non integer) estimates. 

b Four facilities have an unknown CWS type.

D. Other Existing Facilities

 EPA’s data collection efforts largely focused on five industrial sectors: chemicals 

and allied products (SIC Major Group 28); primary metals industries (SIC Major Group 

33); paper and allied products (SIC Major Group 26); petroleum and coal products (SIC 

Major Group 29); and food and kindred products (SIC Major Group 20).26 The first four 

sectors use a significant portion of the cooling water withdrawn among all manufacturing 

industries and were more heavily targeted in EPA’s industry questionnaire effort, but data 

were also collected from the following industries: food processing; aircraft engines and 

engine parts; cutlery; sawmills and planing mills; finishers of broad woven fabrics of 

cotton; potash, soda and borate minerals; iron ores; and sugarcane and sugar beets. These 

 

26 EPA also identified many other industry sectors that use cooling water; a more comprehensive list of 

industries that use cooling water and their NAICS and SIC Codes can be found in section A of the 

Supplementary Information. 

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data from other industries, while not a statistically derived sample, confirm that the 

primary industry sectors discussed above account for the vast majority of Phase IIInonpower plant cooling water use. The data collected for these other industries suggests that 

the intake structure design and construction at these industries were substantially similar 

to the industries for which EPA did collect data, and EPA did not receive any data during 

the Phase III proposed rule comment period that suggests otherwise. EPA’s analysis of 

costs and impacts includes these additional existing facilities. 

V. Scope and Applicability of the Proposed Section 316(b) Existing Facility Rule 

 The proposed rule includes all existing facilities that were previously subject to 

the 2004 Phase II and 2006 Phase III rules, including existing power producers and 

manufacturers with a design intake flow of at leastmore than 2 MGD. The proposed rule 

also clarifies the definition and requirements for new units at existing facilities. The 

applicable requirements are summarized in Exhibits V-1 and V-2. 

Exhibit V-1. Applicability by Phase of the 316(b) Rules 

Facility Characteristic Applicable Rule 

New power generating or manufacturing facility Phase I rule

New offshore oil and gas facility Phase III rule 

New unit at an existing power generating or 

manufacturing facility 

This proposed rule 

Existing power generating or manufacturing facility This proposed rule 

Existing offshore oil and gas facility and seafood 

processing facilities 

This proposed rule (Case-by-case, best professional 

judgment) 

Exhibit V-2. Applicable Requirements of Today’s Proposed Rule for Existing 

Facilities 

Facility Characteristic Applicable Requirements 

Existing facility with a AIF >125 MGD Impingement mortality requirements at 125.94(b) 

and Entrainment Characterization Study 

requirements at 125.94(c) (categorical rule) 

Existing facility with a DIF >2 MGD but AIF not 

greater than 125 MGD 

Impingement mortality requirements at 125.94(b) 

(categorical rule) 

New unit with a DIF >2 MGD at an existing facility Impingement and entrainment mortality 
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requirements at 125.94(d) (categorical standard)

ExistingOther existing facility with a cooling water 

DIF of 2 MGD or smaller or that has an intake 

structure that does not meetwithdraws less than 25 

percent of the criteria in 125.91water for cooling 

purposes

Case-by-case, best professional judgment 

 Initially, EPA divided the 316(b) rulemaking into three phases in response to 

litigation and to make the best use of its resources (see Section I). However, as EPA’s 

analysis progressed, it became clear that cooling water intake structures are operated 

similarly at most industrial facilities (i.e., both power producing and manufacturing 

facilities). From a biological perspective, the effect of intake structures on impingement 

and entrainment does not differ depending on whether an intake structure is associated 

with a power plant or a manufacturer. Instead the impingement and entrainment impacts 

associated with intakes of the same type are generally comparable, and today’s proposed 

rule addresses these impacts without discriminating which facilities are behind the intake 

structure. Thus, EPA is consolidating the universe of potentially regulated facilities from 

the 2004 Phase II rule with the existing facilities in the 2006 Phase III rule for purposes 

of today’s proposed rule. This consolidation also provides a “one-stop shop” for 

information related to today’s proposed rulemaking, as all existing facilities would be 

addressed in an equitable manner by the same set of technology-based requirements. 

A. General Applicability

 This rule would apply to owners and operators of existing facilities that meet all 

of the following criteria: 

• The facility is a point source that uses or proposes to use cooling water from one 

or more cooling water intake structures, including a cooling water intake structure 

operated by an independent supplier not otherwise subject to 316(b) requirements 
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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 total design intake flow of the cooling water intake structure(s) is greater than 

2 MGD; and 

• 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 for 

each calendar year. 

 EPA is proposing to continue to adopt provisions to ensure that the rule does not 

discourage the reuse of cooling water for other uses such as process water. The definition 

of cooling water at 125.93 provides that cooling water used in a manufacturing process 

either before or after it is used for cooling is considered process water for the purposes of 

calculating the percentage of a facility's intake flow that is used for cooling purposes. 

Therefore, water used for both cooling and non-cooling purposes does not count towards 

the 25 percent threshold. EPA notes this definition is the same definition used for new 

facilities in the Phase I rule at 125.83. Examples of water withdrawn for non-cooling 

purposes includes water withdrawn for warming by liquefied natural gas facilities and 

water withdrawn for public water systems by desalinization facilities. Further, the 

proposed rule at 125.91(c) specifies that obtaining cooling water obtained from a public 

water system or using treated effluent (such as wastewater treatment plant “gray” water) 

as cooling water does not constitute use of a cooling water intake structure for purposes 

of this rule. 
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 Today’s proposed rule focuses on those facilities that are significant users of 

cooling water; only those facilities that use more than 25% of the water withdrawn for 

cooling purposes are subject to the proposed rule. EPA previously considered a number 

of approaches for clarifying applicability of the rule (66 FR 28854 and 66 FR 65288). 

EPA adopted the 25% threshold in each of the Phase I, II, and III rules, and EPA has not 

received any new data or identified new approaches that would provide further clarity to 

the applicability of the rule. EPA is proposing to continue to adopt the 25% as the 

threshold for the percent of flow used for cooling purposes at power plants to ensure that 

almost alla large majority of cooling water withdrawn from waters of the U.S. is 

addressed by requirements for minimizing adverse environmental impact. Because 

power generating facilities typically use far more than 25 percent of the water they 

withdraw exclusively for cooling purposes, the 25 percent threshold will ensure that 

intake structures accounting for nearly all cooling water used by the power sector are 

addressed by today’s proposed requirements. While manufacturing facilities often 

withdraw water for more than cooling purposes, the majority of the water is withdrawn 

from a single intake structure.27 Once water passes through the intake, water can be 

apportioned to any desired use, including uses that are not related to cooling. Similarly, 

because power generating facilities typically use far more thanHowever, as long as at 

least 25 percent% of the water they withdrawis used exclusively for cooling purposes, 

EPA proposes to establish 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 proposed will be subject to the requirements. As a result, of today’s rule. EPA 

 

27 Facilities may also use groundwater wells or municipal water for various uses, but the volume of these 

withdrawals is usually much smaller than the volume withdrawn from surface waters. 
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estimates that approximately 68% of manufacturers and 93% of power-generating 

facilities that meet the other proposed thresholds for the rule use more than 25% of intake 

water for cooling and thus will be addressed by today’s rule. 

 EPA decided to propose requiring the Director, exercising his BPJ, to establish 

BTA impingement and entrainment mortality standards for an existing offshore oil and 

gas facility, a seafood processing vessel, or an offshore liquefied natural gas import 

terminal. Such a facility would be subject to permit conditions implementing CWA 

section 316(b) where the facility is a point source that uses a cooling water intake 

structure and has, or is required to have, an NPDES permit. PermitAt their discretion, 

permit writers may further determine that an intake structure that withdraws less than 

25% of the intake flow for cooling purposes should be subject to section 316(b) 

requirements, and set appropriate requirements on a case-by-case basis, using best 

professional judgment. Today’s proposed rule is not intended to constrain permit writers, 

including those at the Federal, State, or Tribal level, from addressing such cooling water 

intake structures. EPA also recognizes that facilities may reuse water within their 

facility; any volume of cooling water that is reused may be subtracted from the total 

withdrawal of cooling water by the facility when determining if a facility is subject to 

today’s proposed rule. 

B. What is an “Existing Facility” for Purposes of the Section 316(b) Phase II 

Rule?

 In today’s proposed rule, EPA is defining the term “existing facility” to include 

any facility that commenced construction before January 18, 2002, as provided for in § 

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122.29(b)(4).28 EPA is proposing to establish January 17, 2002 as the date for 

distinguishing existing facilities from new facilities because that is the effective date of 

the Phase I new facility rule. Thus, existing facilities include all facilities the 

construction of which commenced on or before this date. In addition, EPA is defining 

the term “existing facility” in this proposed 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 § 125.83, which is 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 ‘stand-alone’ 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) and are not 

used for the same industrial purpose. 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).”29

 

28 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 (§ 122.29(b)(4)). 29 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 independent 

industrial operation. The cooling water intake structure used by the original facility is modified by 
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 The preamble to the final Phase I rule discusses this definition at 66 FR 65256; 

65258 - 65259; 65285 - 65287, December 18, 2001. EPA’s definition of an “existing 

facility” in today’s proposed regulation is intended to ensure that all sources excluded 

from the definition of new facility in the Phase I rule are captured by the definition of 

existing facility in this proposed rule. 

 A point source would be subject to Phase I or today’s proposed rule even if the 

cooling water intake structure it uses is not located at the facility.30 In addition, 

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 proposed rule or to increase 

capacity). Rather, the determination as to whether a facility is new or existing focuses on 

whether it is a green field or stand-alone facility and whether there are changes to the 

cooling water intake to accommodate it. 

C. What is “Cooling Water” and What is a “Cooling Water Intake Structure?”

 EPA has not revised the definition of cooling water intake structure for today’s 

proposed rule. A cooling water intake structure is defined as the total physical structure 

 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.” 30 For example, a facility might purchase its cooling water from a nearby facility that owns and operates a 

cooling water intake structure. 
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and any associated constructed waterways used to withdraw cooling water from waters of 

the United States. Under the definition in today’s proposed 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 notice proposes for existing 

facilities the same definition of a “cooling water intake structure” that applies to new 

facilities under Phase I. Today’s proposal also adopts the new facility rule’s definition of 

“cooling water” as 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 notesNote however, that this clarification does not change the fact that only theall

intake water used exclusively for (including cooling purposesand process) is counted 

when determiningincluded in the determination as to whether the 25 percent2 MGD DIF

threshold in § 125.91(a)(3)for covered intake structures is met.

D. Would My Facility Be Covered Only if it is a Point Source Discharger?
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 Today’s proposed rule would apply only to facilities that are point sources (i.e., 

have an NPDES permit or are required to obtain one). This is the same requirement EPA 

included in the Phase I new facility rule at § 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 existing facilities that employ cooling 

water intake structures, the Agency anticipates that most existing facilities subject to this 

proposed rule will control the intake structure that supplies them with cooling water, and 

discharge some combination of their cooling water, wastewater, or storm water to a water 

of the United States through a point source regulated by an NPDES permit. Under these 

circumstances, the facility’s NPDES permit will include the requirements for the cooling 

water intake structure. In the event that an 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 requirements set out at 40 CFR 122.28. 

 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 will 

necessarily apply other legal requirements, where applicable, 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 
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adverse environmental impact caused by cooling water intake structures at those 

facilities. 

E. Would My Facility Be Covered if it Withdraws Water From Waters of the 

U.S.? What if My Facility Obtains Cooling Water from an Independent 

Supplier?

 The requirements in today’s proposed rule apply to cooling water intake 

structures that have the design capacity to withdraw amounts of water equal to or greater 

than 2 MGD 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 manmade cooling ponds, and then 

withdraw water from the ponds for cooling purposes. EPA recognizes that cooling ponds 

may, in certain circumstances, constitute a closed-cycle cooling system and therefore 

may already comply with some or all of the technology-based requirements in today’s 

proposed rule. However, facilities that withdraw cooling water from cooling ponds that 

are waters of the United States and that meet the other criteria for coverage (including the 

requirement that the facility has or will be required to obtain an NPDES permit) would be 

subject to today's proposed rule. In some cases water is withdrawn from a water of the 

United States to provide make-up water for a cooling pond. In many cases, EPA expects 

such make-up water withdrawals are commensurate with the flows of a closed-cycle 

cooling tower, and again the facility may already comply with requirements to reduce its 
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intake flow under the proposed rule. In those cases where the withdrawals of make-up 

water come from a waterswater of the United States, and the facility otherwise meets 

today’s criteria for coverage (including a design intake flow of 2 million gallons per day), 

the facility would be subject to today’s proposed rule requirements. 

 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 permitting authorities the 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 permitting authority on a case-by-case basis. 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 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/pdf/ANPRM-FR.pdf). The agencies additionally 

published guidance in 2008 regarding the term “waters of the United States” in light of 

both the SWANCC and subsequent Rapanos case (Rapanos v. United States, 547 U.S. 715 

(2006)).

 The Agency 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 
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with cooling water. 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, revised § 125.91 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 proposed rule. 

However, obtaining water from another entity that is withdrawing water from a water of 

the US would be counted as using a cooling water intake waterstructure for purposes of 

determining whether an entity meets the threshold requirements of the rule. For example, 

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(b) specifies 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 ana new or existing facility subject to section 316(b).), 

except if it is a public water system.

 As a practical matter, existing facilities are the largest users of cooling water, and 

typically require enough cooling water to warrant owning the cooling water intake 

structures. In some cases, such as at nuclear power plants or critical baseload facilities, 

the need for cooling water includes safety and reliability reasons that would likely 

preclude any independent supplier arrangements. Therefore, EPA does not expect much 

application of this provision. EPA is nevertheless retaining the provision in order to 

prevent facilities from circumventing the requirements of today’s proposed rule by 
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creating arrangements to receive cooling water from an entity that is not itself a subject to 

today’s proposed rule, and is not explicitly exempt from today’s rule (such as drinking 

water or treatment plant discharges reused as cooling water). 

F. What Intake Flow Thresholds Result in an Existing Facility Being Subject to 

This Proposed Rule?

 There are two ways in which EPA determines the cooling water flow at a facility. 

The first way is based on the design intake flow (DIF), which reflects the maximum 

intake flow the facility is capable of withdrawing. While this normally is limited by the 

capacity of the cooling water intake pumps, other parts of the cooling water intake system 

could impose physical limitations on the maximum intake flow the facility is capable of 

withdrawing. The second way is based on the actual intake flow (AIF), which reflects 

the actual volume of water withdrawn by the facility. EPA has defined AIF to be the 

average water withdrawn each year over the preceding 3 years. Both of these definitions 

are used in today’s proposed rule. 

In this proposed rule EPA considered requirements based on the intake flow at the 

existing facility. EPA is proposing the rule to apply to facilities that have a total design 

intake capacity of at least 2 MGD (see § 125.91).31 AtAbove 2 MGD, 99.7% of the total 

water withdrawals by utilities and other industrial sources would potentially be covered

(if the other criteria for coverage are met) while 58% of the manufacturers, 70% of the 

non-utilities, and 100% of the utilities would be covered. EPA also chose the greater 

than 2 MGD threshold to be consistent with the applicability criteria in the Phase I rule.32

 

31 The 2004 Phase II rule applied to existing power-generating facilities with a design intake flow of 50 

mgd or greater. Facilities potentially in scope of the Phase III rule had a DIF of greater than 2 MGD. 

32 See 65 FR 49067/3 for more information. 
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EPA continues to believe that this threshold ensures that the largest users of cooling 

water will be subject to the proposed rule. 

 EPA proposes to continue to use a threshold based on design intake flow as 

opposed to actual intake flow for several reasons. In contrast to actual intake flow, 

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. This provides clarity, 

as the design intake flow does not change, except in limited circumstances, such as when 

a facility undergoes major modifications. On the other hand, actual flows can vary 

significantly over sometimes short periods of time. For example, a peaking power plant 

may have an actual intake flow close to the design intake flow during times of full energy 

production, and may be but an AIF of zero during periods of standby. Use of design 

intake flow provides clarity as to regulatory status, is indicative of the possible magnitude 

of environmental impact, and would avoid the need for monitoring to confirm a facility’s 

status. Also see 69 FR 41611 for more information about these thresholds. 

 Under current NPDES permitting regulations at § 122.21, all existing facilities 

greater than 2 MGD DIF must submit basic information describing the facility, source 

water physical data, source water biological characterization data, and cooling water 

intake system data. Under this proposed rule, all facilities greater than 2 MGD DIF must 

submit additional facility-specific information including the proposed impingement 

mortality reduction plan, relevant biological survival studies, and operational status of 

each of the facility’s units.33 Certain facilities withdrawing the largest volumes of water 

 

33 The proposed rule contains streamlined information submission requirements for facilities that already 

employ closed cycle cooling. 

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for cooling purposes have additional information and study requirements such as the 

Entrainment Characterization Study as described below. 

EPA is proposing to use actual intake flow (AIF) rather than design intake flow 

(DIF) for purposes of determining which facilities must conduct an Entrainment 

Characterization Study. Environmental impacts, particularly entrainment and 

entrainment mortality, result from actual water withdrawals, and not the maximum 

designed withdrawals. Further, using actual flow may encourage some facilities to reduce 

their flows in order to avoid collecting supplemental data and submitting the additional 

entrainment characterization study. Furthermore, any facility that has DIF greater than 2 

MGD is required to submit basic information that will allow the permitting authority to 

verify its determination of whether or not it meets the 125 MGD AIF threshold.

EPA has selected a threshold of 125 MGD AIF because a threshold of 125 MGD 

would capture 90 percent of the actual flows but would only establish the Entrainment 

Characterization Study requirements for 30 percent of existing facilities. This would 

significantly reduce facility burden by more than two-thirds of the potentially in-scope 

facilities, and would focus permit authorities on the majority of cooling water 

withdrawals by addressing approximately 200 billion gallons of daily cooling water 

withdrawals. 

 In today’s proposal, EPA seeks to clarify that for some facilities, the design intake 

flow is not necessarily the maximum flow associated with the intake pumps. For 

example, a power plant may have redundant circulating pumps, or may have pumps with 

a name plate rating that exceeds the maximum water throughput of the associated piping. 

EPA intends for the design intake flow to reflect the maximum volume of water that a 
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plant can physically withdraw from a source waterbody over a specific time period. This 

also means that a plant that has permanently taken a pump out of service or has flow 

limited by piping or other physical limitations should be able to consider such constraints 

when reporting its DIF. EPA solicits comment on whether the definition of DIF should be 

revised to make this clarification more apparent. 

G. Offshore Oil and Gas Facilities, Seafood Processing Vessels or LNG Import 

Terminals BTA Requirements Under This Proposed Rule

 Under today’s proposal, existing offshore oil and gas facilities, seafood 

processing facilities and LNG import terminals would be subject to 316(b) requirements 

on a best professional judgment basis. In the Phase III rule, EPA studied offshore oil and 

gas facilities and seafood processing facilities34 and could not identify any technologies 

(beyond the protective screens already in use) that are technically feasible for reducing 

impingement or entrainment in such existing facilities.35 As discussed in the Phase III 

rule, known technologies that could further reduce impingement or entrainment would 

result in unacceptable changes in the envelope of existing platforms, drilling rigs, mobile 

offshore drilling units (MODUs), seafood processing vessels (SPVs), and similar 

facilities as the technologies would project out from the hull, potentially decrease the 

seaworthiness, and potentially interfere with structural components of the hull. EPA also 

believes that for many of these facilities, the cooling water withdrawals are most 

 

34 EPA studied naval vessels and cruise ships as part of its development of a general NPDES permit for 

discharges from ocean-going vessels. (See http://cfpub.epa.gov/npdes/home.cfm?program_id=350 for 

more information.) EPA studied seafood processing vessels and oil and gas exploration facilities in the 

316(b) Phase III rule. 

35 As discussed in today’s preamble, requirements for new offshore facilities set forth in the Phase III rule 

remain in effect. 
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substantial when the facilities are operating far out at sea – and therefore not withdrawing 

from a water of the U.S. The EPA is aware that LNG facilities may withdraw hundreds of 

MGD of seawater for warming (re-gasification). However, some existing LNG facilities 

may still withdraw water where 25 percent or more of the water is used for cooling 

purposes. As discussed in section V, EPA has not identified a uniformly applicable and 

available technology for minimizing impingement and entrainment (I&E) mortality at 

these facilities. However, technologies may be available for some existing LNG facilities. 

LNG facilities that withdraw any volume of water for cooling purposes would be subject 

to case-by-case, best professional judgment BTA determinations. 

EPA has not identified any new data or approaches that would result in a different 

determination. Therefore, today’s rule would continue to require that the BTA for 

existing offshore oil and gas extraction facilities and seafood processing facilities is 

through conditions established by NPDES permit directors on a case-by-case basis using 

best professional judgment. EPA solicits comment and data on the appropriateness of 

national categorical standards for these facilities. 

H. What is a “New Unit” and How Are New Units Addressed Under This 

Proposed Rule?

 The Phase I rule did not distinguish between new stand-alone facilities and new 

units where the units are built on a site where a source is already located and does not 

totally replace the existing source. Because EPA is not changing the new facility rule 

definitions, and is only proposing clarifying revisions to the existing facility rule, this 

proposed provision is not intended to otherwise reopen the Phase I rule. Today’s 

proposed rule establishes requirements for new units added to an existing facility that are 
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not a “new facility” as defined at § 125.83. Today’s proposal seeks to clarify the 

definitions of “new” versus “existing” by first noting that, for purposes of section 316(b), 

a facility cannot be defined as a new facility and an existing facility at the same time. In 

this rule, while EPA will continue to treat replacement and new units for the same 

industrial purpose as existing facilities, EPA intends to have different requirements for 

the addition of new units. Furthermore, aA replacement unit or repowered unit, as 

distinct from constructing an additional unit, would alsonot be treated differently than 

existing units. Repowering, in contrast to simply constructingas a new unit, is rebuilding 

and replacing the major components of an existing power plant. Repowering is done to 

improve efficiency, increase or optimize capacity, or minimize operating costs of the 

existing unit. For example, an electric generating facility may replace boilers, retrofit 

improved condenser designs, and utilize combined cycle or cogeneration in the 

repowered unit. The requirements for new units are modeled after the requirements for a 

new facility in the Phase I rule. 

 EPA has adopted this approach for the following reasons. Almost two-thirds of 

the coal fired units are at least 30 years of age, and more than 30 percent of coal units are 

at least 50 years of age. As these units are retired and replaced based on individual 

facility circumstancesAs new units are built at existing facilities to provide additional 

capacity, facilities have the ideal opportunity to design and construct the new units 

without many of the additional expenses associated with retrofitting an existing unit to 

closed-cycle. Thus, for example, the timing of retirement and replacement is within the 

control of the facility and would be dictated strictly by the facility’s internal requirements 

rather than linked to specific regulatory compliance deadlines. Further, theThe
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incremental downtime that maycan be associated with installing retrofitting to closedcycle cooling may beis avoided or minimized.altogether at a new unit. In addition, when 

new units are added, the condensers can be configured for closed-cycle, reducing energy 

requirements, and high efficiency cooling towers can be designed as part of the new unit

replacement, allowing for installation of smaller cooling towers. Thus, the capital costs 

for closed cycle cooling at new units are lower than the capital costs for once-through 

cooling. These advantages may not always be available when retrofitting cooling 

towers at an existing unit. 

 In consideration of the fact that these repowering, replacement, and additional 

unit construction decisions rest largely within the control of the individual facility, EPA 

decided that subjecting these operationsnew units to the same national BTA requirements 

as those applicable to new facilities is warranted. 

VI. BTA Consideration 

 In response to the Supreme Court’s decision in Entergy Corp. et al. v. EPA in 

April 2009, and considering the Second Circuit decision in Riverkeeper II, EPA has 

reevaluated the basis for, and the requirements of, section 316(b) as applied tofor existing 

facilities. under section 316(b). As discussed in Section III, for the BTA determinations 

proposed below, EPA has collected additional CWIS data (including site visit data), 

gained valuable implementation experience,and information and updated the technology 

efficacy and costs analyses for use in its BTA determinations proposed below. prepared 

for the earlier rulemaking efforts. These data and analyses serve to update the rulemaking 

record and allow EPA to apply greater technical rigor to EPA’s analysis of BTA. EPA 
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has assessed this new data and information in light of the specific holdings of the 

Supreme Court in the Entergy decision. As a result, EPA has decided not to re-propose 

requirements similar to those of the final Phase II rule, but would adopt, for the reasons 

explained in this preamble, a new framework. In addition, as previously noted, EPA 

decided to address all existing facilities subject to 316(b) in one rule (i.e., Phase II and 

Phase III).

A. EPA’s Approach to BTA

 Section 316(b) of the CWA requires EPA to establish standards for cooling water 

intake structures that reflect the “best technology available for minimizing adverse 

environmental impact.” The statute is silent with respect to the factors that EPA should 

consider in determining BTA but courts have held that, given section 316(b)’s reference 

to sections 301 and 306 of the Act, EPA may look to the factors considered in those 

sections in establishing those standards for section 316(b) standard setting. The Supreme 

Court noted that, given the absence of any factors language in Section 316(b), EPA has 

more discretion in its standard setting under section 316(b) than under the effluent 

guidelines provisions. EPA has broad discretion in determining what is the “best” 

available technology for minimizing adverse environmental impact. EPA is not bound to 

evaluate the factors it considers in standard setting in precisely the same way it considers 

them in establishing effluent limitations guidelines under section 304 of the Clean Water 

Act. Thus, the U.S. Supreme Court has explained that, under section 316(b), “best” 

technology may reflect a consideration of a number of factors and that “best” does not 

necessarily mean the technology that achieves the greatest reduction in environmental 

harm that the regulated universe can afford. Rather, the “best” (or “most advantageous” 
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technology in the court’s words) may represent a technology that most efficiently 

produces the reductions in harm. 

 EPA has interpreted section 316(b) to require the Agency to establish a standard 

based on the best technology available that will minimize impingement and entrainment – 

the two main adverse effects of cooling water intake structures. In EPA’s view, there are 

two primary CWA drivers ofseveral important considerations underpinning its decision. 

First, its BTA determination should be consistent with,and reflective of, the goals of 

Section 101 goals of the CWA: “to restore and maintain the physical, chemical, and 

biological integrity of the Nation’s waters,” with an interim goal of protecting water 

quality so as to provide for the protection and propagation of fish, shellfish, and wildlife 

and provide for recreation in and on the water. 

Second, because the Supreme Court has concluded that EPA may permissibly 

consider costs and benefits in its BTA determination and E.O. 13563 directs EPA only to 

propose regulations based on a reasoned determination that the benefits justify the costs, 

EPA has taken costs and benefits into account in this proposal. EPA has concluded that 

the benefits of the proposed option justify its costs. See section VI. E below. 

 Both Riverkeeper decisions recognize that EPA may consider a number of factors 

in establishing section 316(b)’s technology requirements standards. In the Phase I 

Riverkeeper case, the court explained that the cross reference in section 316(b) to sections 

301 and 306 is an “invitation” to look to those statutory provisions for guidance 

concerning the factors EPA should consider in determining BTA. In the Phase II 

decision, the court stated that the interpretation of section 316(b) should be reflective of 

the CWA’s“informed” by these other two provisions. EPA may consider the factors 
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involved in establishing effluent discharge limitations when regulating intake structures. 

The factors specifically delineated in CWA sections 301 and 306 that EPA may consider 

include: cost of the technology, taking into account the age of the equipment and 

facilities, process employed, engineering aspects associated with a particular technologyforcing objectives to minimize the adverse, process changes and non-water quality

environmental impacts associated with cooling water intake structures. Thus, the 

standard should represent reasonable further progress toward both goals. EPA’s 

proposal is consistent with both. impact (including energy requirements). 

 In selecting the “best” technology, EPA looked at a number of factors. Thus, 

EPA first considered the availability and feasibility of various technologies, their costs 

including potential costs to facilities as well as households, and economic impacts of 

different technologies. EPA reviewed the efficacy of these technologies in reducing 

impingement and entrainment mortality, including cost-effectiveness relationships. EPA 

also considered additional factors set out in 304(b) of the Clean Water Act, including 

location, age, size, and type of facility. EPA next considered the non-water quality 

effects of different technologies on energy production and availability, electricity 

reliability, and potential adverse environmental effects that may arise from the use of the 

different controls evaluated. In choosing between technologies, EPA has also looked at 

the relationship between the costs and the benefits of the different technologies. 

Consideration of this last factor in particular is complicated by the absence of welldeveloped tools that can fully express the ecological benefits in monetized terms. EPA 

has also considered the non-monetized benefits of various options associated with 

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 EPA has also considered the costs and the benefits of the different technologies it 

evaluated for BTA. Consideration of benefits in particular is complicated by the absence 

of well-developed tools or data to fully express the ecological benefits in monetized 

terms. EPA has, however, used the best currently available science to monetize the 

benefits of the various options in four major categories: recreational fishing, commercial 

fishing, nonuse benefits, and benefits to threatened and endangered species (see Exhibit 

VIII-10). EPA believes that the benefits estimated for the first two categories are fairly 

complete, while the benefits estimated for the latter two categories are incomplete for a 

number of reasons. For example, the non-use benefits consider only the northeast and 

middle Atlantic states. EPA will continue to refine its tools in order to develop a more 

complete analysis concerning benefits during the rulemaking proceeding.

 As a result of this thorough evaluation, EPA has identifiedis proposing the use of 

modified traveling screens with a fish handling and return system or reduced intake 

velocity as BTA for impingement mortality. EPA’s record shows modified traveling 

screens are available for all facilities, whereas reduced intake velocity may not be 

available at all locations. For entrainment, on the other hand, EPA could identify no 

single technology that represented BTA for all facilities for the reasons explained in 

detail below. Instead, as the national BTA entrainment requirement for existing facilities, 

EPA is proposing to adopt regulations that establish a process for the permitting authority 

to determine entrainment BTA controls on a site-specific basis following the 

consideration of several factors. In addition to the general considerations discussed 

above, EPA has identified the following specific factors as the key elements in its 

decision not to prescribe a single technology as the basis for a national BTA 
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determination. These factors are local energy reliability, air emissions permits , land 

availability, and remaining useful plant life. The rest of this chapter describes each of 

these considerations in detail. 

B. Technologies Considered to Minimize Impingement and Entrainment

As described in Section IV, power plants and manufacturers withdraw 

large volumes of cooling water on a daily basis. The majority of environmental impacts 

associated with intake structures are caused by water withdrawals that ultimately result in 

the loss of aquatic organisms. These losses may be due to impingement, entrainment, or 

both. Impingement occurs when organisms are trapped against the outer part of a 

screening device of an intake structure.36 The force of the intake water traps the 

organisms against the screen and they are unable to escape. Not all organisms contained 

in the incoming water are impinged, however. Some may pass through the screening 

system and the intake structure and travel through the entire cooling system including the 

pumps, condenser tubes, and discharge pipes. This is referred to as entrainment. Various 

factors lead to the susceptibility of an organism to impingement or entrainment. For 

more detailed discussion of impingement and entrainment and their resulting impact, see 

67 FR 17136-17140 and the EEBA. 

As described in Section III.D, reductions in impingement or entrainment do not 

necessarily mean reductions in mortality. For purposes of this proposal, EPA has 

developed the following definitions for impingement and entrainment and mortality: 

 

36 Typically, cooling water intake structures use various screening devices to prevent large objects (e.g., 

trash, logs) from being drawn in with the cooling water and ultimately clogging or damaging the cooling 

water system. 

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• Impingement: The entrapment of all life stages of fish and shellfish on the outer 

part of an intake structure or against a screening device during periods of intake 

water withdrawal. 

• Impingement Mortality: The death of fish or shellfish due to impingement (as 

defined above). Note impingement mortality need not occur immediately; 

impingement may cause harm to the organism, which results in mortality several 

hours after the impingement event. For purposes of this proposed rule, 

impingement mortality is limited to those organisms collected or retained by 3/8 

inch sieve. 

• Entrainment: The incorporation of all life stages of fish and shellfish with intake 

water flow entering and passing through a cooling water intake structure and into 

a cooling system. 

• Entrainment Mortality: The death of fish or shellfish due to entrainment. This 

also includes the death of those fish and shellfish due to fine mesh screens or 

other technologies used to exclude the organisms from entrainment. For purposes 

of this proposed rule, entrainment mortality is limited to those organisms passing 

through a 3/8-inch sieve. 

Based on available information, as described in section III.D, EPA concludesis 

assuming for purposes of this rule that all entrained organisms are a loss, i.e., no 

entrained organisms survive. Therefore, in the absence of entrainment control, 

entrainment leadsis assumed to lead to entrainment mortality. Also see Chapter A7 of the 

Phase II Regional Studies Document (DCN 6-0003; EPA-HQ-OW-2002-0049-1490). 

Entrainable organisms generally consist of eggs and early life stage larvae. Early larvae 
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generally do not have skeletal structures, have not yet developed scales, and in many 

cases are incapable of swimming for several days post hatching. However, for 

impingement, mortality occurs less than 100% of the time. Impingeable organisms are 

generally larger juvenile or adult fish, with fully formed scales and skeletal structures, 

and well developed survival traits such as avoidance responses. EPA’s data demonstrate 

that, under the proper conditions, many impinged organisms survive. 

In addition to these definitions it is helpful to further characterize impingement 

and entrainment as those terms are used in the literature and in studies conducted by 

power plants. Historically, traveling screens deployed by power plants utilized a 3/8-inch 

mesh size. For this reason, most studies and reports referring to impingement are in fact 

referring to those organisms impinged on a 3/8-inch mesh screen. Impingement can also 

refer to any organism incapable of swimming away from the intake structure due to the 

water velocity at the intake. Similarly, entrainable organisms are those organisms fitting 

through a mesh smallerof less than or equal to 3/8 of an inch. This also means the 

majority of entrainable organisms are comprised of eggs, larvae, and juveniles. More 

recent studies, particularly those that evaluate mesh sizes smaller than 3/8 of an inch, 

continue to refer to impingement as any organism caught on the screen. This can cause 

some confusion, as many organisms that would have been entrained with a 3/8-inch mesh 

instead become impinged by the finer mesh. These are referred to as “impinged 

entrainables” or “converts.” EPA has also found that most studies of entrainment focus 

on larvae that have head capsid sizes appropriate for evaluating certain screen slot 

sizes.are biased towards the larger (older) larvae with higher survival rates and do not 

analyze survival of smaller larvae. This corresponds to larvae body lengths sufficient to 
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have begun scale and bone development, and generally reflects the more motile early life 

stages. EPA found these study findings cannot be applied to non-motile life stages, 

which are incapable of avoidance responses. As discussed in Section III.C, it is also 

important to note that the prevention of entrainment by some exclusion technologies may 

result in very high entrainment reductions, but these organisms do not necessarily survive 

interactions with the exclusion technology. Therefore, while entrainment refers 

specifically to passage through the cooling water intake system, entrainment mortality 

also includes those smaller organisms killed by exclusion from the cooling water intake 

system. Today’s rule proposes to use the 3/8-inch mesh size as part of the definition of 

impingement and entrainment mortality as a means of clearly differentiating those 

organisms that may be susceptible to impingement or entrainment, and thereby avoiding 

any confusion over the status of “impinged entrainables” or “converts.” 

There Generally, there are two basic approaches to reduce impingement and entrainment 

(I&E) mortality. The first approach is flow reduction, where the facility installs 

technology or operates in a manner to reduce or eliminate the quantity of water being 

withdrawn. Reduced volumes of cooling water produce a corresponding reduction in 

I&E, and therefore reduced I&E mortality. The second way to reduce I&E is to install 

technologies or operate in a manner that either a) gently excludes organisms or b) collects 

and returns organisms. Under the first approach, technologies or practices are used to 

divert those organisms that would have been subject to I&E. The second approach is to 

install collection and return technologies; organisms not diverted are collected and 

returned back to the source water. Either approach is available to both power plants and 

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manufacturers, as the cooling water intake structures at each type of industry are 

functionally the same. The following sections discuss these methods. 

B. Technologies Considered to Minimize Impingement and Entrainment

 Though not available to all facilities, a third approach to reducing 

impingement and entrainment is relocating the facility’s intake to a less biologically rich 

area in a water body, usually further from shore and/or at greater depths, or varying the 

timing of withdrawals by time of day, season, etc., to target withdrawals to times when 

organism densities are lower. This approach can be effective at entrainment reduction, 

but is not generally available to inland facilities.

The section below further describes flow reduction and exclusion technologies. 

1. Flow Reduction 

Flow reduction is commonly used to reduce impingement and entrainment. 

BothFor purposes of rulemaking, EPA assumes that entrainment and impingement (and 

associated mortality) at a particular site are generally considered to be proportional to 

source water intake volume.37 Thus, if a facility reduces its intake flow, it similarly 

reduces the amount of organisms subject to impingement and entrainment. Some 

common flow reduction technologies include: variable frequency drives, variable speed 

pumps, seasonal operation or seasonal flow reductions, unit retirements, use of alternate 

cooling water sources, water reuse, and closed-cycle cooling systems. For additional 

 

37 Impingement rates are related to intake flow, intake velocity, and the swimming ability of the fish subject 

to impingement. Entrainment is generally considered to be proportional to flow and therefore reduced on a 

1-to-1 basis via flow reductions, as EPA assumes for purposes of national rulemaking that entrainable 

organisms are uniformly distributed throughout the source water. EPA has consistently applied this 

assumption throughout the 316(b) rulemaking process (see, e.g., 66 FR 65276 for a discussion of 

proportional flow requirements in the Phase I rule or 69 FR 41599) and continues to believe that it is 

broadly applicable on a national scale and is an appropriate assumption for a national rulemaking. EPA 

recognizes that this assumption is not necessarily true on a site specific basis and that relocating or varying 

the time pattern of withdrawals may be effective strategies to reduce I&E in some cases.

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detailed information on these technologies as well as others, see the TDD, (DCN xxx), 

and DCNs xxx –modular tower memo, screen memo, “California’s Coastal Power Plants: 

Alternative Cooling System Analysis (DCN xxx),10-6964), and EPRI’s “Fish Protection 

at Cooling Water Intake Structures: A Technical Reference Manual”.” (DCN 10-6813). 

a. Variable Frequency Drives and Variable Speed Pumps 

A facility with variable speed drives or pumps operating at their design maximum 

can withdraw the same volume of water as a conventional circulating water pump. 

However, unlike a conventional circulating water pump, variable speed drives and pumps 

allow a facility to reduce the volume of water being withdrawn for certain time periods. 

The pump speed can be adjusted to reduce water withdrawals when cooling water needs 

are lower, such as when ambient water temperatures are colder (and therefore capable of 

dissipating more heat) or when fewer generating units are operating. VariableIn site 

visits, EPA found that variable speed drives and pumps only reduce flow when 

operatedwere typically used at units operating below capacity, such as load following 

units. For this reason most base load generating units and continuously operated 

manufacturing processes would obtain minimal reductions in flow as a result of these 

technologies. FacilitiesEPA estimates that facilities with intermittent water 

withdrawswithdrawals could achieve a 5 to 10 percent reduction in flow.38 EPA is 

further aware that some facilities need to withdraw water for cooling even while the 

facility is not in production, such as facilities on standby status, or nuclear facilities 

where the heat energy generated by fission must still be dissipated while the facility is out 

of service. 

 

38 Withdrawals of colder water could allow facilities to reduce their intake using variable speed drives and 

pumps, but EPA does not have data on the efficacy or availability of this approach.
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b. Seasonal Flow Reductions 

Seasonal flow reduction refers to the reduction or elimination of a quantity of 

water being withdrawn during certain biologically important time periods. Most facilities 

that practice seasonal flow reductions do so in order to reduce entrainment because peak 

entrainment events are often seasonal, typically occurring during local spawning season, 

while impingement is more sporadic. For example, clupeids species experience 

impingement episodes sporadically all throughout the winter and spring. Largemouth 

bass, on the other hand, may spawn in the late-spring., which would thus be a season of 

potentially high entrainment for this species. During this specific peak entrainment time 

period, a facility wouldcould operate less (or perhaps not at all) thereby reducing or 

eliminating the volume of cooling water withdrawn. This may be accomplished through 

a combination of variable speed pumps or shutting down some portion of the pumping 

system. Seasonal flow reduction may also consist of operating a once-through cooling 

system during part of the year and switching to closed-cycle during peak entrainment 

season. Facilities may also choose to schedule periodic maintenance to occur during 

these time periods; these maintenance activities often require the facility to reduce or 

cease operations and can be timed to coincide with the most biologically productive 

periods. By identifying species of concern at facilities visited by EPA, the Agency has 

identified some sites where entrainment is significant all year long, and other sites where 

peak entrainment occurs in as few as three to four months of the year. In addition, not all 

power generating facilities in a local area could stop operating at the same time without 

interrupting local electricity reliability. Therefore, not all facilities can utilize seasonal 

flow reduction technologies. 
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c. Unit Retirements 

Some power plants have retired units completely or have essentially ceased all 

operations but have yet to be formally retired or decommissioned. Reasons for their 

inactivity vary,39 but the end result is the facility eliminates the need for cooling water 

withdrawals for these units. Similarly, manufacturers may retire processing units as 

market demand changes, process lines are moved to other sites, or production 

technologies change. Unit closures provide clear reductions in flow, but the demand for 

electricity (or other products) may dictate that production be increased at the facility in 

question or another facility altogether; there is usually no guarantee that the intake flow 

will be permanently retired. EPA expects flow reductions due to unit closures could be 

reasonably included as part of a facility’s I&E mortality reductions for a period of up to 

10 years. 

d. Alternate Sources of Cooling Water 

While not reducing the overall usage of water at a facility, using an alternate 

source of cooling water may have the same effect in reducing impingement and 

entrainment, as new or additional withdrawals from surface waters may be reduced. An 

example is using “gray” water as a source of cooling water; a facility reaches an 

agreement with a nearby wastewater treatment plant to accept the WWTP’s effluent as a 

source of cooling water.40 Such alternative sources are limited by available capacity, 

consistency of flow, and increasing competition for these sources of water, and may be 

 

39 Note that some generating units are retired for market-driven reasons (i.e., the unit is no longer 

considered sufficiently profitable to operate). They may also be mothballed, placed on cold storage, or 

maintained in various other states of operational readiness. 40 See, for example, EPA’s site visit report for PSEG’s Linden Generating Station (DCN 10-xxx6557), 

which has a capacity of 1230 MW, 35% CUR, and uses 7-8 mgd of grey water as makeup water for its 

cooling towers. 
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more challenging to find for existing facilities than for new facilities that are not yet fixed 

in location. 

e. Water Reuse 

Typically associated with manufacturing facilities, water reuse (defined as using 

water for multiple processes) can reduce the volume of water needed for cooling, process, 

or other uses. For example, a facility might withdraw water for non-contact cooling 

water and then re-use the heated effluent as part of an industrial process. In effect, the 

facility has eliminated the need to withdraw additional water for the latter process. EPA 

has observed significant water reuse at manufacturing facilities, but has not developed 

national level data for such reuse due to the range of different manufacturing sectors and 

the significant variability in manufacturing processes (during site visits, it was observed 

that complex facilities have found it difficult to assess their specific water reuse). See 

Section IV for further discussion on water usage in specific industrial sectors. 

f. Closed-cycle Cooling Towers 

Closed-cycle cooling systems allow a facility to transfer its waste heat to the 

environment using significantly smaller quantities of (or in some cases no) water. There 

are two main types of closed-cycle cooling systems: wet cooling and dry cooling. Each 

of these is described below. 

Wet Cooling Tower Systems

In a wet cooling system, cooling water that has absorbed waste heat, transfers that 

heat through evaporation of some of the heated water into the surrounding air and 

recirculates the cooling water to continue the cooling process.41 This process enables a 

 

41 In addition, a smaller portion of the heat is also removed through direct contact between the warm water 

and the cooler surroundings. 
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facility to re-use the remaining water, thereby reducing the quantity of water that must be 

withdrawn from a water body. Because the heat is transferred through evaporation, while 

the amount of water withdrawn from the water source is greatly reduced, it is not 

eliminated completely because make-up water is required to replace that lost through 

evaporation and blowdown. There are two main types of wet cooling systems: natural 

draft and mechanical. While wet cooling towers reduce withdrawals relative to oncethrough systems, they may increase the consumptive use of water since they tend to rely 

on evaporation (which is not returned to the water body) for heat dissipation. When 

once-through cooling is used and withdrawals are a significant portion of the waterbody, 

the return of heated water may contribute to greater evaporation from the water body. 

However, EPA does not have data on the relative magnitude of these effects. The relative 

loss of water through evaporation for closed cycle and once-through systems is site 

specific, depending on the exact design of the systems.

A natural draft cooling tower is tall42 and has a hyperbolic shape. The height of 

these towers creates a temperature differential between the top and bottom of the tower, 

creating a natural chimney effect that facilitates heat transfer as heated water contacts 

rising air. In contrast, mechanical cooling towers rely on motorized fans to draw air 

through the tower and into contact with the heated water. These towers are likely to be 

much shorter units than natural draft cooling towers,43 and due to their modular 

construction can be built in multiples, but they may require more land area for the same 

amount of cooling. Both types of towers require electricity for pumps, while mechanical 

draft towers also require electricity to operate the fans; both electricity needs serve to 

 

42 Natural draft towers can be as high as 500 feet or more. 

43 Mechanical draft towers typically range from 30 to 75 feet in height. 
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reduce a facility’s net generating output. Thus the monetary and environmental costs of 

making up this reduction in energy efficiency need to be considered. These 

environmental costs include human health and welfare effects from increased air 

emissions, including the global climate change effects of increased greenhouse gas output 

at fossil-fueled plants. Both natural draft and mechanical cooling towers can operate in 

freshwater or saltwater environments. Saltwater applications typically require more 

make-up water than freshwater applications, making them less efficient in reducing water 

withdrawals.44 Optimized cooling towers may achieve flow reductions of 97.5 percent or 

better and 94.9 percent or better for freshwater and saltwater sources, respectively. 

Dry Cooling Tower Systems

Dry cooling systems virtually eliminate the need for cooling water withdrawals.45 

Unlike wet cooling systems, in dry cooling systems, waste heat is transferred completely 

through convection and radiation, rather than evaporation. Direct dry cooling is much 

like a car radiator; turbine exhaust steam passes through tubes or fins and the condensate 

is returned for reuse in the turbine. The system is completely closed to the atmosphere 

and there is no contact between the outside air and the steam or the resulting condensate. 

Due to the heavy reliance of dry cooling on ambient air temperatures and the lower 

efficiency of heat transfer through convection and radiation, dry cooling towers are much 

 

44 Modular cooling tower units provide an additional cooling tower alternative. Modular cooling towers 

resemble mechanical cooling towers, but are portable, typically rented for short-term periods and quickly 

assembled. 

45 Dry cooling systems do blow down some of the circulating water within the cooling system to prevent 

the buildup of materials within the condenser. However, the volume of makeup water is extremely low—a 

dry cooling system typically reduces intake flows by 98-99 percent over a comparable once-through 

cooling system. 
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larger and therefore more expensive46 than wet cooling towers for a given cooling load. 

Dry cooling towers have been built in areas where limited water supplies exist for either 

once-through cooling or wet cooling make-up water, such as the arid southwestern U.S. 

Dry cooling is not demonstrated and available for nuclear facilities, due to the backup 

cooling systems and related safety needs required at a nuclear facility. 

Hybrid Cooling Tower Systems

In certain applications, a facility may choose a hybrid cooling tower design that 

incorporates elements of both wet and dry cooling. Typically, the base of the tower 

functions as a wet cooling tower and the upper portion as a dry tower; the most common 

reason for this design is to reduce the visible plume emitted from the tower, which is 

accomplished by recapturing some of the water vapor evaporated in the wet portion of the 

tower. This design is also usually much shorter than natural draft wet towers, which can 

also offer plume abatement controls. 

2. Exclusion Technologies to Minimize Impingement and/or Entrainment 

 Over the last several decades, in addition to flow reduction and closed-cycle 

cooling, numerous technologies have been developed in an effort to minimize 

impingement and entrainment mortality associated with cooling water intake systems. 

The following summarizes the most widely used technologies as well as the most 

effective and best performing technologies. For additional detailed information on these 

technologies as well as others, see the TDD, CA Report, and EPRI report. 

a. Screens 

i. Traveling Screens 

 

46 The construction and capital costs for dry cooling towers have been reported as five to 10 times as 

expensive as wet cooling towers, and the parasitic load for dry cooling is higher than for wet cooling. See 

DCNxxxxxDCN 10-6679. 
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Traveling screens are a technology in place at virtually all cooling water intake 

structures. These screens were originally designed to prevent debris from entering the 

cooling water system, but also prevent some fish and shellfish from entering the cooling 

water system. Traveling screens have been installed in numerous environmental 

conditions: salt water, brackish water, fresh water, and icy water. Based on the technical 

survey, EPA found 93 percent of electric generators and 73 percent of manufacturers 

employ traveling screens or other intake screens. There are many types of traveling 

screens (e.g., through flow, dual flow, center flow). The most common design in the U.S. 

is the through flow system. The screens are installed behind bar racks (trash racks) but in 

front of the water circulation pumps. The screens rotate up and out of the water where 

debris (including impinged organisms) is removed from the screen surface by a high 

pressure spray wash. Screen wash cycles are triggered manually or by a certain level of 

head loss across the screen (indicating clogging). By definition, this technology works 

by collecting or “impinging” fish and shellfish on the screen. Traveling screens are 

ideally used with a fish handling and return system, discussed further in Section VI.B.3 

below. 

ii. Cylindrical Wedgewire Screens 

Cylindrical wedgewire screens, also called “V” screens or profile screens, unlike 

traveling screens, are a passive intake system. Wedgewire screens consist of a v-shaped, 

cross section wire on a framing system. Slot sizes for conventional traveling screens 

typically refer to a square opening (3/8” x 3/8”) that is punched or woven into the screen 

face. Wedgewire screens are constructed differently, however, with the slot size referring 

to the maximum distance between longitudinally adjacent wires. These screens are 
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designed to have a low through-slot velocity (less than 0.5 ft/sec or 0.15 m/sec) and 

typically have smaller slot sizes than a coarse mesh traveling screen. The entire 

wedgewire structure is submerged in the source waterbody. 

When appropriate conditions are met, these screens exploit physical and hydraulic 

exclusion mechanisms to achieve consistently high impingement reductions (and as a 

result, impingement mortality reductions). Wedgewire screens require an ambient 

current crossflow to maximize the sweeping velocity provided by the waterbody. The 

screen orientation and cross current flow carries organisms away from the screen 

allowing them to avoid or escape the intake current. Lower intake velocities also allow 

fish to escape from the screen face. Entrainment reductions can potentially be observed 

when the screen slot size is small enough and intake velocity is low enough to exclude 

egg and larval life stages.47 There is also limited evidence suggesting that extremely low 

intake velocities can allow some egg and larval life stages to avoid the intake due to 

hydrodynamic influences of the cross current. Therefore performance is largely dictated 

by local conditions that are further dependent on the source waterbody’s biological 

composition. Costs of wedgewire screens also increases significantly as slot size and 

design intake velocity decrease. Wedgewire screens may also employ cleaning and deicing systems such as air-burst sparging to aid in maintaining open intake structures and 

low intake velocities. 

According to data from the industry questionnaire, EPA’s site visits, and industry 

documents, dozens of facilities across the U.S. employ cylindrical wedgewire screens. 

However, wedgewire screens are not feasible for facilities with limited access to source 

 

47 Note that this is entrainment exclusion and not necessarily related to the survival of entrainable 

organisms. See Section III.B.2 for more detail. 
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water, such as shallow water or limited shoreline frontage. Wedgewire screens may also 

not be feasible where the size and number of wedgewire screens would interfere with 

navigational traffic. As described above, locations also need to have an adequate source 

water sweeping velocity. Most of the performance data for wedgewire screens is based 

on coarse mesh slot sizes with an intake velocity of 0.5 feet per second. As it is 

extremely difficult to measure impingement and entrainment reductions in the field, most 

performance data is based on barge studies and lab studies. EPA does not have data on 

the performance of fine mesh wedgewire screens on entrainment survival; therefore EPA 

has only considered wedgewire screens for impingement mortality. For additional 

discussion of the specific design and operation of cylindrical wedgewire screens, see 

DCN xxxx (Tim’s memo).the TDD. The following section discusses the importance of 

mesh size to impingement and entrainment mortality reductions. 

iii. Screen Mesh Size Considerations 

Coarse Mesh

Coarse mesh traveling screens are the typical traveling screen fitted on the 

majority of cooling water intakes. A large number of facilities have intake screens with 

3/8-inch (9.5 mm) mesh panels. This size mesh is common because, as a general rule of 

thumb, the maximum screen slot size is never larger than one half of the condenser tube 

diameter (the condenser tubing is the narrowest point in the cooling water system and, as 

such, is most susceptible to clogging from debris), and this tubing is typically 3/4 or 7/8 

inches in diameter. Mesh of 3/8-inch (roughly 9.5 mm) does not prevent entrainment and 

in the absence of any other precautions can lead to high mortality of impinged fish. 

Coarse mesh traveling screens have been in use by both power plants and manufacturers 
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for more than 75 years and represent the baseline technology. Similarly, the majority of 

successful wedgewire installations are coarse mesh. 

Fine Mesh

Fine mesh traveling and wedgewire screens are similar to coarse mesh screens, 

with the only difference being the size of the screen mesh. The mesh size of fine mesh 

screens varies, depending on the organisms to be protected, but typically range from 0.5 

to 5 mm. Typically, facilities have incorporated fine mesh in an effort to reduce 

entrainment. Data in the record demonstrate that entrainment typically decreases as mesh 

size decreases. However, slot sizes larger than 2 mm do not prevent eggs from passing 

through the screen. Fine mesh traveling screens have been in use in this industry since 

the 1980s. EPA estimates as many as 17 percent of existing intakes could not be 

expanded in size to accommodate a 2 mm mesh, and as many as 55 percent of existing 

intakes could not accommodate a 0.5 mm slot size under conditions of low intake 

velocities. For these reasons, fine mesh screens are demonstrated for some locations, but 

are not the best performing technologies, and are not available technologies for the 

industry as a whole. See Chapter 6 of the TDD for more details. 

b. Barrier Nets 

Barrier nets are nets that fully encircle the intake area of water withdrawal, from 

the bottom of the water column to the surface and that prevent fish and shellfish from 

coming in contact with the intake structure and screens. According to data from the 

industry questionnaire (as of the year 2000), at least a half dozen facilities employ a 

barrier net. Typically, barrier nets have large mesh sizes (e.g., 1/2-inch or 12.7 mm)48

 

48 Barrier net mesh sizes vary, depending on the configuration, level of debris loading, species to be 

protected, and other factors. 
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and are designed to prevent impingement. Due to the large mesh size, they offer no 

reduction in entrainment. They are often deployed seasonally, wherever seasonal 

migrations create high impingement events or to avoid harsh winter conditions which 

jeopardize integrity of the net. Barrier nets also prevent impingement of shellfish on the 

intake traveling screen. Shellfish such as crustaceans may pose a unique issue for 

traveling screens because the shellfish are not impinged, but rather they may grab hold of 

the traveling screen surface and are not removed from the traveling screen by pressure 

wash sprays. Barrier nets have been shown to be particularly helpful in this regard. For 

this reason, the costs of options considered today include the costs of barrier nets to 

minimize impingement mortality of shellfish. 

c. Aquatic Filter Barriers 

Aquatic Filter Barriers (AFBs), such as the Gunderboom Marine Life Exclusion 

System (MLES) or simply “Gunderboom,” are similar to barrier nets in that they extend 

throughout the area of water withdrawal from the bottom of the water column to the 

surface. However, AFBs consist of water permeable fabric panels with small pores (<20 

microns). AFBs reduce both impingement mortality and entrainment because they 

present a physical barrier to all life stages. The surface area of an AFB is quite large 

compared to a traveling screen, allowing for extremely low water velocities. The low 

velocity allows non-motile organisms to drift away. EPA is aware of one power plant 

that used an AFB, but notes that this facility recently ceased operations.49 EPA has 

updated performance data for AFB for small flow intakes, but does not have enough data 

to evaluate the technology at large intakes and in all waterbodies. 

 

49 This facility ceased operations for reasons other than impingement and entrainment related to cooling 

water intake. 
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3. Collection and Return 

Conventional traveling screens were not designed with the intention of protecting 

fish and aquatic organisms that become entrapped against them. Marine life may become 

impinged against the screens from high intake velocities that prevent their escape. 

Prolonged contact with the screens may suffocate insufficiently strong species or certain 

susceptible life stages of fish. Exposure to high pressure sprays and other screening 

debris may cause significant injuries that result in latent mortality, or increase the 

susceptibility to predation or re-impingement. Organisms that do survive initial 

impingement and removal are not typically provided with a specifically-designed 

mechanism to return them to the water body and are handled in the same fashion as other 

screening debris. Other objects collected on the screen are typically removed with a 

high-pressure spray and deposited in a dumpster or debris return trough for disposal. 

Screens are rotated periodically based on a set time interval or when the pressure 

differential between the upstream and downstream faces exceeds a set value. 

Conventional traveling screen systems have been modified to reduce impingementrelated mortalities with collection and return systems. In simplest form, this is comprised 

of a return flume or trough with sufficient water volume and flow to enable impinged 

organisms to return to the source water. Return systems should be designed to avoid 

predation and latent mortality while organisms are in the flume, positioned at an 

appropriate water depth for high survival of the organisms, located at an appropriate 

elevation to avoid large drops of the organisms back to the surface water, and sited to 

avoid repeated impingement of the organisms by the intake structure. 
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Following the 1972 Clean Water Act’s requirement to require technology-based 

solutions to minimize adverse environmental impacts, some conventional coarse mesh 

traveling screen systems were modified to reduce impingement mortality by removing 

fish trapped against the screen and returning them to the receiving water with as few 

injuries as possible. The first modified screens, also known as “Ristroph” screens, 

feature capture and release modifications. In the simplest sense, these screens are fitted 

with troughs (also referred to as buckets) containing water that catch the organisms as 

they rise out of the water and are sprayed off of the screen. The return component 

consists of a gentle mechanism to remove impinged fish from the collection buckets, such 

as a low-pressure spray. The buckets empty into a collection trough that returns fish to a 

suitable area in the source water body. These modified screens have shown significant 

improvements in reducing impingement mortality compared with unmodified screen 

systems. 

Data from early applications of the “Ristroph” screen design50 showed that while 

initial survival rates might be high at some installations, latent mortality rates were higher 

than anticipated, indicating significant injuries could be sustained during the 

impingement and return process that were not immediately fatal. Based on a study 

conducted by Ian Fletcher in the 1990’s (see DCN 5-4387), industry identified several 

additional critical screen modifications to address latent mortality. These include 

redesign of the collection buckets to minimize turbulence, addition of a fish guard 

rail/barrier to prevent fish from escaping the collection bucket, replacement of screen 

panel materials with “fish friendly” smooth woven mesh, and a low pressure wash to 

 

50 See DCN XXXX[Ian Black study]
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remove fish prior to any high pressure spray to remove debris on the ascending side. The 

Fletcher analysis also identified that longer impingement duration, insufficient water 

retention in the buckets, and exposure to the air and temperature extremes could 

negatively impact fish survival. Finally, these findings indicate that modified Ristroph 

screens must be continually rotated instead of the periodic rotation schedule common 

with conventional screen systems. Performance data for modified traveling screens with 

fish return systems show low levels of impingement mortality across a wide variety of 

water body types and fish species. Therefore, EPA has concluded modified traveling 

screens with a fish return system is a candidate best performing technology for 

impingement mortality. 

For additional and more detailed discussion of the specific design and operation 

of these screen modifications, see DCN xxxx (Tim’s memo).the TDD.

4. Intake Location and Velocity Caps 

Currently, the most common intake location for a cooling water intake structure is 

along a shoreline. In some types of waterbodies, shoreline locations are thought to have 

the potential for greater environmental impact because the water is withdrawn from the 

most biologically productive areas especially with regards to earlier life stages. Some 

facilities employ an offshore intake to withdraw water from less biologically productive 

areas to reduce entrainment relative to intakes located in more productive shoreline areas, 

though impingement (and therefore impingement mortality) reductions have also been 

observed. Obviously, reduction in impingement mortality and entrainment depend on 

intake location at a particular site, but the greatest potential for reductions is found with 

far offshore locations at distances of several hundred feet, something not possible on 
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many rivers and streams. Both depth and the offshore location must be evaluated to 

determine if fish densities and species distribution at the offshore location are 

substantially different than those near the shoreline. Two areas where far offshore 

locations are commonly used today include the oceans and Great Lakes. 

EPA found most offshore intakes are fitted with a velocity cap. Velocity caps are 

a physical structure rising vertically from the sea bottom and placed over top of the intake 

pipe. Intake water is withdrawn through openings in the velocity cap in a manner which 

converts the direction of flow from vertical to horizontal. The horizontal flow provides a 

physiological trigger in fish to induce an avoidance response thereby reducing 

impingement mortality. The velocity cap further serves to limit the zone of influence of 

the intake to the horizontal transect indepth level at which the velocity cap is situated, 

thus affecting only the life stages that live at that depth. Furthermore, the velocity at an 

offshore intake is lower than the velocity of an equivalent sized intake at the shoreline 

due to differences in pressure, resulting in a lower intake velocity at the velocity cap than 

at a shoreline intake. Velocity caps are also usually equipped with supports and bar 

spacing selected to prevent larger aquatic organisms (e.g., turtles or marine mammals) 

from entering the intake pipe. Because velocity caps operate under the principle that the 

organisms can escape the current, velocity caps do not offer entrainment reductions over 

and above those achieved by being located offshore. Reductions in entrainment observed 

with velocity caps occur due to the difference in organism densities in far offshore deep 

water compared to a surface intake at the shoreline. 

For additional and more detailed discussion of the specific design and operation 

of offshore intake locations and velocity caps, see DCN xxxx (Tim’s memo).the TDD.
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5. Reduced Intake Velocity 

Impingement mortality can be greatly reduced by reducing the through-screen 

velocity in any screen. Reducing the rate of flow of cooling water through the screen 

(through-screen velocity) to 0.5 ft/sec or less reduces impingement of most fish because it 

allows them to escape the intake current. (See 66 FR 65274 and DCN 2-028A, EPRI’s 

“Technical Evaluation of the Utility of Intake Approach Velocity as an Indicator of 

Potential Adverse Environmental Impact Under Clean Water Act 316(b).”) Limited lab 

studies indicate that entrainment also may decrease as through-screen velocity decreases 

and that through-screen velocity may have an effect on entrainment survival rates, 

although such data is extremely variable by species (cite EPRI).see DCN 10-6802 and 

DCN10-6803). As a result, some Phase II facilities have designed and operate their 

modified traveling screens or wedgewire screens so as not to exceed a through-screen 

velocity of 0.5 ft/sec. In addition, for the reasons described in Section VI.B.2, aquatic 

filter barriers and velocity caps51 are likely to have velocities of 0.5 ft/sec or less. Swim 

speed studies demonstrate that for most facilities, an intake velocity of 0.5 feet per second 

or less results in 90 percent or better reductions in impingement mortality for most 

species. (EPA notes that preliminary results from recent studies of fine mesh screens 

suggest that at even lower intake velocities such as 0.25 feet per second, there may be 

some hydrodynamic influences that reduce entrainment mortality. even more, because 

flow dynamics are nonlinear. It is unclear whether such observations hold true when 

cooling water withdrawals (water volumes) are substantially large.) Therefore, EPA has 

 

51 Velocity as measured at the velocity cap opening. 
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concluded reduced intake velocity is a candidate best performing technology for 

impingement mortality. 

C. Technology Basis for Today’s Proposed Regulation

As described in the previous section, EPA examined the full range of technologies 

that reduce impingement and/ or entrainment, and evaluated these technologies based on 

their efficacy in reducing impingement and entrainment, availability, and cost. Based on 

an assessment of these factors, EPA has identified three best performing technologies for 

further analysis as the basis for today’s proposed rule: modified traveling screens with a 

fish return, barrier nets, and mechanical draft wet cooling towers (for fish impingement), 

barrier nets (for shellfish impingement on tidal waters), and mechanical draft wet cooling 

towers (for impingement and entrainment at new units). Although EPA has identified 

velocity reduction to 0.5 feet per second or less as a candidate best performing 

technology for impingement mortality, EPA is not proposing reduced intake velocity as 

BTA because it is not available at all facilities, but is allowing facilities to comply with 

intake velocity of 0.5 feet per second or less where available. 

EPA has concluded that modified travelling screens, such as Ristroph screens and 

post-Fletcherequivalent modified traveling screens are a best performing technology for 

impingement mortality. These screens use coarse size mesh with collection buckets 

designed to minimize turbulence, a fish guard rail/barrier to prevent fish from escaping 

the collection bucket, “fish friendly” smooth woven mesh, and a low pressure wash to 

remove fish prior to any high pressure spray to remove debris on the ascending side. The 

fish removal spray must be of lower pressure and the fish return must be fish friendly and 

provide sufficient water and minimize turbulence. Modified traveling screens must 
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generally be continually rotated to obtain the highest reductions in impingement 

mortality. As discussed in Section III, traveling screens with post-Fletcher modifications 

achieve a monthly impingement mortality of 31 percent mortality (performance 

corresponding to the 95th percentile of the beta distribution) under conditions of 48 hour 

or less holding times. The use of the 95th percentile is consistent with the convention 

EPA has used for monthly average limitations in the effluent guidelines program (i.e., for 

pollutant discharges). In developing the monthly average standard proposed for this rule, 

EPA has taken into account the reasonable anticipated variability in impingement 

mortality that may occur at a well-operated facility. Variability occurs due to changes in 

seasons, differing intake locations, higher mortality of certain species, and speciation 

found in different water bodies. 

In contrast to the monthly average, which provides for an allowance in is adjusted 

to reflect month-to-month variability in performance of the technology, EPA doeshas not 

believe that any included an upward adjustment of the annual average standard is 

necessary because compliance is 52 standard to account for year-to-year variability. The 

annual average standard requires that impingement mortality not exceed 12 percent, 

calculated as the average of monthly impingement mortality for 12 consecutive months as 

determined by the Director. The 12 percent value corresponds to the long-term average 

performance of the technology that EPA has identified as BTA, based on available data 

from eight episodes of sampling collected on three different waterbody types over an 

entire year. Consequently, EPA all seasons (see Chapter 11 of the TDD for more 

 

52 The annual average should not be confused with a rolling average of the preceding 12 months; EPA has 

specified in the rule language at §125.96 that the annual average means 12 consecutive months as specified 

by the Director. EPA expects that compliance with the annual average standard would be determined once 

each calendar year.
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information). EPA expects facilities to track their compliance statuswith the annual 

average standard on an ongoing basis. By doing so, the facility will have opportunities 

to, and to proactively modify thetheir technology or operations when necessary to any 

individual monthly average suggests that they may be in danger of exceeding the annual 

average standard in the future. EPA recognizes that some variability in the annual 

average is inevitable, and thus the only way to consistently achieve compliance with the 

annual average standard. the 12 percent annual standard is to target a better level of 

performance as the long term average performance. While EPA’s data show a long term 

average performance of 12 percent impingement mortality for the BTA technology, EPA 

believes that by continuously monitoring and adaptively adjusting the operation of the 

technology, facilities can achieve a better long term performance than is documented in 

the data, and thus consistently meet the annual average.

 EPA also considered applying a confidence or tolerance limit to the expected 

value long-term average in deriving the annual average standard. EPA proposes that 

rejected this approach would provide an inappropriate and unnecessary upward 

adjustment that would allow impingement mortality that greatly exceeded the observed 

performance of the model technology. As a result of applying the statistical 

methodology, EPA determined that the average annual standard for impingement was 12 

percent mortality rate, or an 88 percent survival rate. because EPA believes that facilities 

can achieve better long-term performance than documented in the data by maintaining

tight control on their technology and operations and adaptively managing the technology 

to achieve the best possible performance. While EPA has not included any additional 

costs for this adaptive management, EPA believes that such adaptive management should 
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be part of the routine maintenance and operation of the technology and additional costs 

should not be necessary. 

EPA has occasionally used annual limits in the effluent guidelines program (most 

recently for the pulp and paper industry category (40 CFR 430, promulgated in 1998) and 

has previously not included a variability factor for annual limits. Thus, EPA’s proposed 

approach to calculating the annual standard for mortality impingement is consistent with 

past practice. EPA requests comment on its proposed approach for calculating and 

implementing the annual standard.

This technology does not minimize adverse environmental impacts associated 

with entrainment, and does not specifically address impingement mortality of shellfish. 

EPA selected the seasonal deployment of barrier nets on estuaries and oceans as 

the best performing technology basis for minimizing the impingement mortality of 

shellfish (crustaceans) because no other technology has been identified that is available, 

demonstrated, and feasible. EPA did not select wedgewire screens as a candidate 

technology for impingement mortality because wedgewire screens are not available and 

feasible for all existing facilities. Wedgewire screen performance requires an adequate 

crossflow of the source water that is not present in all waterbodies. Wedgewire screens 

also require a minimum water depth in order to fully submersesubmerge the screens; the 

requisite depth and space to submerge the screens is not available at all locations, and 

further may pose an obstacle to navigation. However, where passive screens such as 

cylindrical wedgewire screens are feasible, data in the record shows they would perform 

equalequally as well or better than seasonal deployment of barrier nets. EPA has included 
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a provision in the proposed regulation that specifies that passive screens meet the IM 

requirement for shellfish. 

One technology for reducing impingement mortality as well as reducing 

entrainment mortality is wet cooling towers. Mechanical cooling towers achieve flow 

reductions of 97.5 percent for freshwater and 94.9 percent for freshwater and saltwater 

sources by operating the towers at a minimum of 3.0 and 1.5 cycles of concentration, 

respectively. Based on the high levels (greater than 95 percent on average) of flow 

reduction obtained by optimized cooling tower operation, EPA has identified wet cooling 

towers as a candidate best performing technology for both impingement mortality and 

entrainment mortality. for new units at existing facilities. As discussed further below, 

EPA is not proposing cooling towers as BTA for existing facilities (other than new units) 

because it is not available on a national basis. As described in Section VI.B, other 

technologies are demonstrated, but are not the best performing technologies and/or are 

not available technologies for the industry as a whole. 

Although, EPA’s record shows numerous instances of existing facility retrofits to 

closed-cycle. , EPA has not identified it as BTA for the reasons discussed below. EPA 

has also not identified any other available and demonstrated candidate technology for 

entrainment mortality that is available on a national basis; see Section VI.B and the TDD 

for other entrainment technologies that may be available on a site-specific basis. EPA 

did not select the other flow reduction technologies such as variable speed drives and 

seasonal flow reductions as the technology basis for entrainment mortality because these 

technologies are not feasible for all facilities. Further, EPA has not identified a basis for 

subcategorizing existing facilities for where these flow reduction technologies are 
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feasible, because thetheir seasonal operation depends on the site-specific biology of the 

facility. EPA did not select relocation of a shoreline intake to far offshore as a 

technology basis because this technologies is not feasible for all facilities. Even if EPA 

subcategorized by water body type (i.e., intake location), the performance of wet cooling 

towers for entrainment mortality is at least three times that of a far offshore intake. 

Therefore relocation of the intake is not be the best performing technology for 

minimizing entrainment mortality. 

D. Options Considered for Today’s Proposed Regulation

After careful consideration of the technologies available as described in Section 

VI.C, EPA developed threefour primary options based on these technologies for today’s 

proposed rule. All threeThree of the options would require the same impingement 

mortality standards, but would vary the approach to entrainment mortality controls. The 

fourth option would allow both impingement and entrainment mortality controls to be 

established on a site-specific BPJ basis for facilities with a DIF less than 50 MGD. The 

options are described briefly below, followed by a discussion of EPA’s evaluation of 

each option as BTA. 

1. Option 1 – Uniform Impingement Mortality Controls at All Existing Facilities; 

Site-Specific Entrainment Controls for Existing Facilities (other than New Units) 

that Withdraw over 2 MGD DIF; Uniform Entrainment Controls for All New 

Units at Existing Facilities 

Under this option, all existing facilities withdrawing more than 2 MGD would be 

required to meet either the design or the performance standard for impingement 

mortality. Entrainment controls would be established by the permitting authority on a 
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case-by-case basis taking into account those factors at a particular facility that are 

specified in today’s proposal and the information required by the existing permit 

regulations at § 122.21(r)(1)-(8) for all facilities with at least 2 MGD DIF. In addition, 

under EPA’s CWA sections 301, 308, 316(b), and 402 authority, in the case of facilities 

withdrawing greater than 125 MDG AIF (actual intake flow), the site-specific 

determination of BTA would be based on a submission of certain other required 

information. The proposal would amend the permit application requirements at § 

122.21(r)(9)-(11) to require the facility to prepare an Entrainment Characterization Study 

that would fully characterize the amount of entrainment at the facility. (See below for 

more details about the study). In addition, under the proposal, the facility would provide 

detailed information on the other factors relevant to the Director’s site-specific BTA 

determination. These would include information concerning the technologies available 

for control of such entrainment, the costs of controls, the non-water quality impacts of 

such controls, and both the monetized and non- monetized benefits of such controls. The 

CWA requires, and EPA encourages, the public to have a role in the permitting process; 

therefore EPA has also included meaningful public opportunity for participation in the 

site-specific decision making to help ensure the soundness of both the information and 

subsequent determinations. 

a. Impingement Mortality Controls 

As described earlier in this section, traveling screens have undergone a number of 

technological improvements over the years and modern screens have proven to be highly 

effective in promoting the survival of impinged organisms. EPA encouragesThe 

proposed rule requires the use of state-of-the-art screens with fish buckets, a low pressure 
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spray wash, a dedicated fish return line, etc., but is not specifying any particular screen 

configuration, mesh size or screen operations, so long as facilities can consistently meet 

the numeric impingement mortality limits (impingement mortality also includes a design 

standard for shellfish). EPA is also not specifying additional design or operational 

criteria to promote development of improved technologies, and to allow facilities to use 

variations such as dual flow traveling screens and drum screens. 

EPA did not select intake velocity as the sole technology basis for impingement 

mortality controls because, although the performance of 0.5 feet per second intake 

velocity performsis slightly better than the selected technology, the intake velocity is not 

available or feasible for all existing facilities [cite(see Chapter 6 of the TDD].). 

However, EPA has long recognized the relationship between impingement and intake 

velocity. EPA conducted an analysis of fish swim speeds in the Phase I rule (see 66 FR 

65274) and concluded that a design through-screen velocity of 0.5 feet per second would 

be protective of 96% of motile organisms. As a result, a facility may chose to comply 

with the impingement mortality standards in today’s proposed rule by instead 

demonstrating that itsthe through-screen design velocity does not exceed 0.5 feet per 

second, or by demonstrating that the actual average intake velocity does not exceed 0.5 

feet per second. 

While the data shows the majority of healthy motile organisms would be 

protected by a maximum intake velocity of 0.5 feet per second, some species would not 

be adequately protected. Some facilities employ traveling screens, but do not have fish 

friendly modifications such as a fish handling and return system. EPA is concerned that 

some facilities would comply with the impingement mortality requirements by the intake 
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velocity compliance alternative, and would continue to operate unmodified traveling 

screens. This is particularly a concern where the traveling screens are located in a 

forebay, potentially resulting in entrapment of any impinged organisms. Therefore, EPA 

is considering a provision that would require facilities to either demonstrate that the 

species of concern are adequately protected by the maximum intake velocity 

requirements, or to employ specific fish friendly protective measures including, at a 

minimum, a fish handling and return system. EPA solicits comment and data on such a 

provision. 

EPA did not select wedgewire screens as the technology basis for impingement 

mortality controls because wedgewire screens are not available and feasible for all 

existing facilities. EPA also did not need to include wedgewire screens as a compliance 

alternative (i.e., a pre-approved technology) because wedgewire screens designed with an 

intake velocity of 0.5 feet per second can demonstrate compliance with the impingement 

mortality limits based on the intake velocity as just described. EPA did not select flow 

reduction by retrofit to closed-cycle cooling as the technology basis for impingement 

mortality because closed-cycle cooling costs more than 10 times that of modified 

traveling screens with a fish return system. In other words, modified traveling screens 

with a fish return system and closed-cycle cooling are comparable in impingement 

mortality performance, but modified traveling screens with a fish return system is more 

cost-effective than flow reduction at preventing impingement mortality. EPA is not 

including wet cooling towers as a compliance alternative (e.g., a pre-approved 

technology) because EPA’s data shows existing facilities that retrofit to a closed-cycle 

cooling system have an intake velocity of less than 0.5 feet per second. As a practical 
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matter, make-up water withdrawals are made at such low velocities that facilities with 

closed-cycle can demonstrate compliance with the alternative reduced intake velocity to 

meet the impingement mortality limits. It is also possible that a facility with wet cooling 

towers continues to withdraw large volumes of water (up to 125 MGD for make-up 

water) that continues to contribute to significant levels of impingement mortality. For 

estuaries and oceans, EPA selectedFor estuaries and oceans, EPA is proposing seasonal 

deployment of barrier nets on estuaries as the technology basis for minimizing the 

impingement mortality of shellfish (crustaceans) because no other technology has been 

identified that is available, demonstrated, and feasible. As noted previously, use of 

wedgewire screens (along with the limitations on intake velocity) obviates the need for 

barrier nets. 

b. Entrainment Controls 

The proposal would require the developmentconsideration of site-specific 

entrainment controls for each facility above 2 MGD DIF. EPA considered, but rejected, 

an option that would proposing no further controls to address entrainment mortality, and 

to rely instead only on the BTA for impingement mortality because the option controls, 

which would achieve at mostup to a 31 percent reduction in total AEI, and therefore is 

not an option based on the best performing. EPA has not selected this option as the basis 

for national BTA because EPA believes that some facilities may be able to do more to 

control entrainment and that requiring a structured site-specific analysis of candidate 

BTA technologies. for entrainment control will allow the Director to determine where it 

is appropriate to require such controls. However, one outcome of the site specific 

analysis may be that the Director would determine that no other technologies beyond 
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impingement control meet the criteria for selection as BTA, because no other 

technologies are feasible and/or their benefits do not justify their costs. EPA requests 

comment on the option of basing national BTA on impingement controls only and 

dropping the specific requirement for a structured site-specific analysis of entrainment 

BTA options, as discussed below. 

In order to developthe case of site-specific entrainment controls for facilities 

withdrawing greater than 125 MGD AIF, EPA’s proposal would, in addition, require 

these facilities to develop and submit an entrainment mortality data collection plan for 

review and comment characterization study for use by the Director in establishing sitespecific BTA. See Section V.F for more on development of the 125 MGD threshold. 

(Facilities under the 125 MGD AIF threshold must still provide certain water body and 

water population information under the current permit applications requirements at § 

122.21(r)). An early step in conducting the entrainment characterization study is the 

preparation of an entrainment mortality data collection plan, which must be submitted to 

the Director for review and comment before implementation. The entrainment mortality 

data collection plan would include, at a minimum, the specific entrainment monitoring 

methods, taxonomic identification, latent mortality identification, documentation of all 

methods, and quality assurance/quality control procedures for sampling and data analysis 

appropriate for a quantitative survey. EPA would also require peer review of the 

entrainment mortality data collection plan. Peer reviewers would be selected in 

consultation with the Director who may consult with EPA and federal, State, and Tribal 

fish and wildlife management agencies with responsibility for fish and wildlife 

potentially affected by the cooling water intake structure(s). 
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The Entrainment Characterization Study would include information already 

collected to meet current § 122.21(r)(4) requirements. In addition, under the new permit 

application requirements proposed for § 122.21(r)(5)-(12), the facility would submit 

certain additional site-specific information. This would include an engineering study of 

the technical feasibility and incremental costs of candidate entrainment mortality control 

technologies. The facility would also study, evaluate, and document: the technical 

feasibility of technologies at a minimum including closed-cycle cooling and fine mesh 

screens with a mesh size of 2 mm or smaller; engineering cost estimates of all 

technologies considered; any outages, downtime, or other impacts to revenue along with 

a discussion of all reasonable attempts to mitigate these cost factors; and a detailed

discussion of the magnitude of water quality and other benefits, both monetized and nonmonetized, of the candidate entrainment mortality reduction technologies evaluated. 

Finally, the information must include a detailed discussion of the changes in non-water 

quality factors attributed to technologies and/or operational measures considered, 

including but not limited to increases and decreases in the following: energy 

consumption; thermal discharges; air pollutant emissions including particulates and 

associated human health and global climate change impacts; water consumption; noise; 

safety (e.g., visibility of cooling tower plumes, icing); grid reliability, and facility 

reliability. See Section IX for a thorough discussion of these study requirements. 

 Under this option, it is EPA’s expectation that the Director would review the 

candidate technologies for entrainment mortality control that at a minimum includes 

closed-cycle cooling and fine mesh screens. In the decision about what additional 

entrainment controls (if any) to require, the Director couldwould consider all of the 
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facility-specific factors described above. At a minimum, however, the Director must 

provide a discussion explaining how issues concerning local energy reliability, air 

emissions or land availability insofar as they relate to the feasibility of adoption of a 

particular entrainment technology, and remaining useful plant life, and the relationship of 

social benefits to social costs were addressed in the site-specific determination. Under 

the proposal, the Director must issue a written explanation for the basis of the BTA 

determination for each facility. EPA also expects the written explanation would provide 

a review of the social costs (and not just the facility costs cite(see chapter 11 of the EA) 

of the various technologies; a review of the potential reductions in entrainment and 

entrainment mortality; and a review and analysis of monetized and non-monetized 

benefits. 

Under Option 1, new units at an existing facility that withdraws more than 2 

MGD would have requirements similar to the requirements of a new facility in Phase I. 

Under this option, new units would be required to reduce flow commensurate with 

closed-cycle cooling for the new or replacement unit. Under the proposal, as with Track 

II of the Phase I rule, a facility could demonstrate compliance with entrainment control 

requirements by establishing reductions in entrainment mortality for the new unit that are 

90 percent of the reductions that would be achieved by closed-cycle cooling. 

2. Option 2 - Impingement Mortality Controls at All Existing Facilities that 

Withdraw over 2 MGD DIF; Require Flow Reduction Commensurate with 

Closed-cycle Cooling By Facilities Greater Than 125 MGD DIF and at New Units 

at Existing Facilities 
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Under Option 2, all in-scope existing facilities would be required to achieve the 

numeric impingement mortality limits described in Option 1 above. In addition, this 

option would require flow reduction commensurate with closed-cycle cooling by 

facilities greater than 125 MGD DIF and at new units. Option 2 explores using the 

facility size, in terms of design intake flow (DIF), as a factor for establishing different 

BTA for different subcategories. EPA’s analysis shows that a DIF of 125 MGD would 

be an appropriate threshold for this purpose; see Section V. For all facilities that 

withdraw over 2 MGD but less than or equal to 125 MGD DIF, entrainment controls 

would be determined by the permitting authority on a case-by-case basis taking into 

account the factors at a particular facility. Facilities greater than 125 MGD DIF would 

not submit Entrainment Characterization Studies, (because under this option this rule 

would have already determined that closed cycle is BTA for that facility), but all facilities 

would still submit § 122(r)(2)–(r)(7) to the Director to inform the BTA determination as 

described in Option 1. Requirements for new units at an existing facility would be the 

same as described in Option 1.

EPA also considered a variation of this option that uses 125 MGD Actual Intake 

Flow (AIF) rather than 125 MGD Design Intake Flow (DIF) as the threshold. Setting the 

threshold at 125 MGD AIF would allow a Permit Director to treat differently those 

facilities that are above 125 MGD on a DIF basis but below 125 MGD on an AIF basis 

relative to today’s Option 2. EPA traded off introducing more flexibility at those 

facilities for simplicity of implementation (DIF is static), but solicits comment on both 

the threshold and the flow basis for this option. 

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The technology basis for entrainment mortality controls for facilities greater than 

125 MGD DIF under this option would be wet cooling towers as described in Section 

VI.B. The record shows optimized wet cooling towers achieve flow reductions of 97.5 

percent and 94.9 percent for freshwater and saltwater sources, respectively. Optimized 

operation of wet cooling towers would be demonstrated through flow monitoring and 

conductivity measurements. Alternatively, this option would allow facilities to 

demonstrate flow reductions commensurate with closed-cycle cooling based on 

optimized wet cooling towers. 

As part of this option, EPA would provide flexibility to the Director to establish 

compliance timelines for each existing facility to mitigate grid reliability and local 

electricity reliability. Under this option, most existing facilities would have no more than 

10 years to complete the retrofit to closed-cycle cooling. Under this option the Director 

determineswould determine when and if any such schedule for compliance is necessary, 

and determines if the facility is implementing closed-cycle as soon as possible. This 

provision would give the Director the discretion to provide nuclear facilities with no 

more than 15 years to complete the retrofit, because all nuclear facilities are baseload 

generating units and the additional flexibility in timelines would further mitigate energy 

reliability, and because the retrofits at these types of facilities in particular involve 

additional complexities and safety issues. The Director would have the discretion to 

provide manufacturing facilities with no more than 15 years to complete the retrofit due 

to the complexity of manufacturing facilities, multiple process units and product lines, 

and to allow consideration of production schedules in setting such a timeline. The 

additional time may result in compliance costs lower than EPA has projected today, 
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because it provides facilities with an opportunity to schedule the retrofit when other 

major upgrades are being done, reducing downtime and perhaps capital costs. 

3. Option 3 - Establish Impingement Mortality Controls at All Existing Facilities 

that Withdraw over 2 MGD DIF; Require Flow Reduction Commensurate with 

Closed-CcycleCycle Cooling at All Existing Facilities over 2 MGD DIF 

Under this option, all in-scope existing facilities would be required to achieve 

numeric impingement mortality limits as described in Option 1 above. In addition, this 

option would require flow reduction commensurate with closed-cycle cooling by all 

facilities (including new units at existing facilities) as described in Option 2. This option 

would similarly authorize the Director to establish compliance timelines for each existing 

facility to mitigate grid reliability and local electricity reliability as described in Option 2 

above. Requirements for new units at an existing facility would be the same as described 

in Option 1. 

4. Option 4 -- Uniform Impingement Mortality Controls at Existing Facilities with 

Design Intake Flow of 50 MGD or more; BPJ Permits for Existing Facilities with 

Design Intake Flow Between 2 MGD and 50 MGD DIF; Uniform Entrainment 

Controls for All New Units at Existing Facilities 

Under Option 4, only in-scope existing facilities with a design intake flow of 50 

MGD or more would be required to comply with uniform national impingement 

regulatory requirements as described in Option 1 above. In-scope facilities with a design 

intake flow less than 50 MGD would not be subject to the national impingement 

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requirements in today’s proposed rule but would continue to have their 316(b) permit 

requirements established on a case-by-case, best professional judgment basis. In the case 

of an existing facility below 50 MGD that adds a new unit, the flow associated with the 

new unit would be subject to the uniform entrainment requirements based on closed cycle 

cooling. Finally, all existing facilities withdrawing in excess of 2 MGD of design intake 

flow would be subject to entrainment controls established on a site-specific basis. 

EPA considered additional thresholds, subcategories, and other factors to explore 

other options; see Chapter 7 of the TDD for more information. In particular, EPA 

considered an approach that required impingement mortality controls only, but rejectedis 

not proposing such an approach because it would only address one-third of the mortality 

due to impingement and entrainment on a nationwide basis and by itself is not BTA.EPA 

believes there is value in the structured site-specific entrainment BTA determination 

required in Option 1. As discussed in Section VI.E, EPA is aware of technologies that 

can further reduce entrainment mortality for some facilities. EPA also considered an 

approach that would establish both impingement and entrainment mortality requirements 

on a case-by-case basis taking into account the factors at a particular facility, but 

rejectedis not proposing such an approach because there are low-cost technologies for 

impingement mortality that are available, feasible, and demonstrated for facilities on a 

national basis. EPA requests comment on these and the other approaches discussed in 

Chapter 7.

E. Option Selection
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EPA has selectedis proposing Option 1 as best technology available for 

minimizing adverse environmental impact under section 316(b) of the CWA. As 

previously explained, in evaluating technologies that reduce impingement or entrainment 

mortality as the possible basis for section 316(b) requirements, EPA assessed a number of 

different technologies. Based on this technology assessment, EPA concluded that closedcycle cooling reduces impingement and entrainment mortality to the greatest extent. 

But, as the Supreme Court has explained, under section 316(b), the “best 

technology available” does not necessary mean the technology that achieves the greatest 

reduction in I&E mortality that regulated industry can afford. Congress has only required 

that section 316(b) standards must “minimize adverse environmental impact,” a less 

ambitious goal than required in establishing effluent limitations guidelines, pretreatment 

standards and new source standards. Rather, the “best” technology (or “most 

advantageous” or” efficient,” in the court’s words) represents a technology that most 

efficiently produces reductions in I&E mortality. 

The Supreme Court has noted that section 316(b), unlike section 301 and 306 of 

the CWA, is silent with respect to the factors EPA may consider in establishing the 

requirements for cooling water intake structures reflecting the “best technology available 

for minimizing adverse environmental impacts.” The statute’s silence represents a 

refusal to tie EPA’s hands with respect to consideration of potentially relevant factors. 

As a result, in the court’s view, EPA has greater discretion with respect to the factors it 

considers in setting section 316(b) standards than it does when establishing effluent 

limitations guidelines and new source performance standards under section 301 and 306 -

factors the U.S. Court of Appeals for the Second Circuit has twice held that EPA may 
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consider under sections 316(b). These include technological availability, cost, economic 

achievability, and non-water quality environmental impacts (including energy impacts). 

In addition, the Supreme Court held that section 316(b) authorizes, but does not require, 

EPA to consider the benefits, both qualitative and quantitative, of controls. 

Consequently, after considering all of the potentiallyBut EPA has determined that 

closed cycle cooling is not the “best technology available” for this proposal. After 

considering all of the relevant factors, EPA proposes that it should not establish a 

uniform BTA entrainment standard based on closed-cycle cooling for existing facilities 

other than for new units. Instead, for existing facilities other than new units, EPA is 

proposing that the permitting authority should establish BTA entrainment mortality 

controls on a site-specific basis. Site-specific proceedings are the appropriate forum for 

weighing all relevant considerations in establishing BTA entrainment mortality controls 

as discussed in section F below. In theory, EPA believes that site-specific determination 

of BTA entrainment mortality controls will result in the same reductions – will 

“minimize adverse environmental impact” – as a one-size-fit-all requirement that 

included the variances that would be necessary to address the site-specific limitations on 

installation of closed-cycle. This is supported by the fact that the site-specific studies and 

data used to determine closed-cycle is BTA are the same studies and data needed to 

document that a variance from national uniform requirements for closed-cycle is 

warranted. 

EPA proposes to reject closed-cycle cooling as the basis for national entrainment 

controls and choose an option under which the permitting authority would establish 

entrainment controls on a site-specific basis after considering specified factors. EPA 
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concluded that closed-cycle is not always the best available technology available for 

minimizing adverse environmental impact on a national basis. The record shows that 

closed-cycle cooling is not practically feasible in a number of circumstances. While EPA 

cannot identify with precision the extent of these limitations on installation on closedcycle on a nation-wide basis, EPA knows that the circumstances are not isolated or 

insignificant. In light of this, EPA decided that it should not establish closed-cycle 

cooling as the presumptive BTA entrainment control. Instead, entrainment controls 

should be determined in a site-specific setting where the opportunity for local community 

input in decision-making process will be maximized. 

Four factors, in particular, led EPA, for this proposal, to reject a uniform standard 

based on closed-cycle cooling and illustrate why site-specific standard setting is the 

proper approach here. These factors are energy reliability, air emissions permits, land 

availability, and remaining useful plant life. Further explanation is provided below as to 

why these factors support establishing BTA entrainment mortality control on a sitespecific basis as discussed in section F below. 

As noted, the Supreme Court in its Entergy decision determined that EPA 

couldmay permissibly consider the benefits, both quantitative and qualitative, derived 

from reductions in the adverse environmental impacts associated with cooling water 

intake structures and the costs of achieving them and determine the extent of reductions 

warranted under the circumstances. Further, E.O. 13563 directs agencies, to the extent 

permitted by law, to propose or adopt a regulation only upon a reasoned determination 

that its benefits justify its costs (recognizing that some benefits and costs are difficult to 

quantify). E.O. 13563, Sec 1(b)(1). 

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 Pursuant to the principles spelled out in the Executive Order, EPA has assessed 

costs and benefits for its proposed regulatory option and has reasonably determined that 

the benefits of its proposed rule justify the costs. EPA has analyzed the social costbenefit of this rule to be $384 million annually. New unit requirements would cost $15 

million per year. As will be described in more detail below, there are significant benefits 

associated with the proposed rule. These benefits include the annual reduction in 

impingement of 615 million age-one equivalents. In addition, there are important other 

benefits that EPA was not able to fully quantify such as reductions in impingement and 

entrainment at new units, impacts to many shellfish species, and non-use values 

associated with the vast majority of fish and shellfish. The rule would also require 

establishing site-specific entrainment control through a process in which specific 

environmental conditions and the localized benefits of entrainment reductions will be 

assessed along with the costs of controls. The information generated in the required 

studies would enhance the transparency of decision-making, and the opportunity for 

meaningful public participation and ensure decision-making based on the best available 

data. Overall, these requirements will foster protection and restoration of healthy aquatic 

ecosystems that have important commercial, recreational, aesthetic and cultural values to 

their surrounding communities. Many of the benefits that would result from the rule are 

not quantified, and as a result the Agency’s quantitative benefits analysis in setting 

section 316(b) national performance standards. The decision not to establish a uniform 

nationalunderestimates the totality of the rule’s benefits. Based on the record, EPA has 

determined that the proposed impingement and entrainment mortality control standard 

was not based, however, on a nation-wide comparison of costs and benefits of different 

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control options. First, EPA recognized that there are significant limitations in its ability 

to determine benefits in this context. Thus, the universe of even ecosystem benefits that 

it can quantifycontrols will result in benefits that justify the costs of the rule. 

 EPA would also note that its valuation of the benefits is small. not yet complete. 

For example, EPA’s calculation of reduced impingement and entrainment benefits 

analysis does not account for 97 percent of the direct use A1E of organisms entrained by 

cooling water intakes. Moreover, the monetized benefit values do not include the 

majority of the indirect use and nonuse value of the reductions in I&E mortality, and 

completely excludefully quantify or monetize certain potentially important categories of 

benefits, such as the non-commercial portion of impacts toexistence values for threatened 

and endangered species, the thermal discharge impacts to water quality, and species 

composition. Under these circumstances, a complete national weighing of costs and 

benefits is not possible at this timesecondary and tertiary ecosystem impacts, benthic 

community impacts, shellfish impacts and the impacts arising from reductions in thermal 

discharges that would be associated with closed cycle. Changes in fish assemblages due 

to impingement, entrainment and thermal effects are also not fully valued. These 

categories of benefits that are not fully valued are often referred to as non-use benefits: 

those benefits people derive absent a use or activity, such as fishing; the value one places 

on knowing that an aquatic ecosystem is healthy is a non-use value. Non-use benefits 

could be more completely evaluated than they have been to date. EPA intends to 

characterize these benefits more fully through the use of a stated preference survey of the 

general population and will consider the results of this survey analysis in development of 

the final rule. Although not discussed in this preamble, EPA also conducted an 

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alternative benefits analysis that is suggestive of the potential for a more complete 

analysis to result in monetary benefits that are much more in line with social costs (see 

chapter 9 of the EEBA). These factors all lend further support to EPA’s conclusion that 

benefits associated with the proposal justify its costs. 

Second, onEPA is proposing that the permitting authority would consider social 

costs and benefits on a site specific basis in establishing entrainment mortality controls. 

This approach is consistent with the direction of E.O. 13563 and supported by several 

considerations. 

On the basis of currently available information, a national evaluation of benefits 

no matter how accurate would necessarily fail to account for the variations in benefits 

from location to location. A national assessment would tend to mask variations in 

benefits and costs from different geographical locations for different water bodies. Thus 

for example, some fish species at coastal facilities have biological spawning attributes 

that differ from those at other locations. The proportion of the receiving water 

withdrawn for cooling may also vary among sites. The values that communities place on 

their resources may vary from site to site. As a consequence, for example, one ecological 

environment may experience large masses of hardier eggs subject to potential 

entrainment while another will have fewer but less hardy eggs susceptible to entrainment. 

The resulting differencedifferences in the value of reduced entrainment – which may be 

dramatic for some sites – are not reflectednecessarily disappear in a national 

calculationaggregation of results. The Agency has decided this masking of variation in 

benefits supports a requirement to consider the localized benefits of entrainment control 

technologies in the site-specific process to establish entrainment mortality controls. 

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Today’s proposed rule establishes requirements based on closed-cycle cooling for 

new units added to an existing facility that are not a “new facility” as defined at § 125.83. 

The requirements for new units are essentially the same as the requirements for a new 

facility in the Phase I rule. 

EPA has proposed this option for new units because installation of cooling towers 

to obtain the necessary flow reduction is a significantly smaller undertaking for new units 

than is retrofitting an entire existing facility. Overall, the costs of achieving the reduction 

associated with installing closed-cycle cooling at a new unit are significantly less than for 

retrofitting an existing facility (see also Section VI.F below). Further, the planning for 

the required flow reduction associated with unit replacement is, as a practical matter, 

much simpler than that necessary when retrofitting an entire facility. Existing facilities 

that are replacing unit operations have considerable discretion in their decisions about 

when and how to upgrade their operations and thus avoid potential problems. This 

discretion affords them significant flexibility in the timing of installation of these new 

units and associated controls in order to avoid potential problems. This flexibility would 

not be available to entire facilities required to retrofit to closed-cycle cooling. 

When a new unit is added, the record indicates that the capital costs of closedcycle cooling are comparable to or even lower than the capital costs for once-through 

cooling. For adding new units, the only difference in operations and maintenance costs 

between closed-cycle and once-through cooling is associated with the fans and pumps 

necessary to operate closed-cycle cooling. With respect to repowering and rebuilding, a 

much less frequent occurrence – See TDD at XXX, the capital costs of closed-cycle 

cooling are less than half the costs of retrofitting an entire facility. See TDD at XXX.

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That the costs of closed-cycle cooling for new units is much less than for 

retrofitting an entire facility is not surprising. For new units, the timing of retirement and 

replacement is within the control of the facility and would be based on the facility’s 

internal requirements rather than being linked to specific regulatory compliance 

deadlines. Thus, the incremental downtime that may be associated with installing closedcycle cooling may be avoided or minimized with the installation of new units because 

major facility modifications already take anywhere from months to years to complete, 

and the construction of closed-cycle cooling can overlap this otherwise planned 

downtime. In addition, EPA is aware that there are a number of options for meeting the 

intake flow reductions associated with cooling towers and that complete replacement of 

the existing intake structure may not always be required when replacing existing units as 

opposed to retrofitting an entire facility. 

Further, any energy penalty or local energy reliability concerns are largely 

addressed when new units are installed. For example, the turbine backpressure 

inefficiency that makes up the largest component of the energy penalty arises from not 

retrofitting a condenser; however, additional new units will always require a new 

condenser, while repowered units would often present an opportunity to design a new 

condenser. As long as the new condenser is optimized for closed-cycle cooling, the 

turbine backpressure component of the energy penalty is negated. See TDD at XXX. 

The condensers can be configured for closed-cycle, reducing energy requirements, and 

high efficiency cooling towers can be designed as part of the unit replacement, allowing 

for installation of smaller cooling towers or smaller, portable cooling towers in some 
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locations. TDD at XXX. Because a new unit is by definition already offline, the factor 

of local energy reliability is no longer a concern. 

Finally, converting to closed-cycle cooling is more feasible for new units because 

modifications to the facility could be scheduled in phases.53 The record indicates that, 

where space is an issue, facilities seeking to repower would have to put the new unit 

where an existing unit currently is. To do this without shutting down the entire facility, 

this repowering would be done in phases. Installation of closed-cycle cooling in phases 

is more feasible because space previously dedicated to other uses becomes available as 

those uses are abandoned in previous phases.

Similar efficiencies may be achieved when replacing units or constructing 

additional units at existing nuclear facilities under a schedule dictated by individual plant 

considerations rather than under regulatory deadlines that require complex retrofits. Most 

nuclear powered units are currently operating under recently renewed 20-year operating 

licenses, or are in the process of seeking such renewals. Further, approximately 80 

percent of nuclear powered facilities are scheduled to “uprate” one or more of their 

units54. An uprate falls into one of three categories: 1) measurement uncertainty 

recapture power uprates, 2) stretch power uprates, and 3) extended power uprates. The 

extended power uprates usually require significant modifications to major pieces of non-

 

53 McDonough is currently undergoing a major repowering project. Georgia Power purchased a large tract 

of land to the facility’s north and is constructing two 800 MW gas-fired combined-cycle units at the site. 

Both of these units will incorporate closed-cycle cooling. Once the first unit is operational, the power 

block at McDonough will be demolished and a third unit will be constructed in its place (and will use the 

cooling towers built for McDonough). See DCN XX-XXXX. 54 A power uprate is an increase in the power output of a reactor, typically due to refueling with slightly 

more enriched fuel or a higher percentage of new fuel. This enables the reactor to produce more thermal 

energy and therefore more steam. Components such as valves, pumps, heat exchangers, and generators 

must be able to safely operate at the higher power level, therefore the NRC must approve an uprate. See 

DCN XX-XXXX [NRC, “Power Uprates for Nuclear Plants”]
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nuclear equipment such as high-pressure turbines, condensate pumps and motors, main 

generators, and/or transformers, resulting in power increases as high as 20 percent. From 

2008 to 2012, NRC projects 17 submittals for extended power uprates. Since such 

uprates are extensive and costly, it is unlikely a facility would pursue such modifications 

unless the facility operation would be more reliable and remain profitable as a result of 

these modifications. These modifications are a strong indicator the facility intends to 

operate the units for the foreseeable future. Again, such facilities have the ideal 

opportunity to design and construct new units without many of the additional expenses 

associated with retrofitting an existing unit to closed-cycle. 

As a point of clarification, EPA does not intend for a nuclear facility seeking a 

measurement uncertainty recapture power uprate or a stretch power uprate to define the 

affected unit(s) as a new unit. Uncertainty recapture uprates are based on improvements 

to measurement and process control, and do not involve major plant modifications. 

Similarly, a stretch power uprate usually involve changes to instrumentation and process 

control, but do not involve major plant modifications.

With respect to new units at manufacturing facilities, these facilities frequently 

modify, add, or remove product lines and related process units in response to factors such 

as changing market conditions and improved production technologies. Such facilities use 

more efficient processes and equipment as individual product lines are discontinued or 

replaced. In each of these cases, the most opportune time to install closed-cycle on the 

new unit is when the facility goes offline to make such extensive modifications. The 

modular nature of mechanical draft cooling towers lends itself well to such applications 
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as demonstrated by manufacturing facilities that have already employed closed-cycle 

cooling at the process unit level. 

In summary, EPA proposes that, because repowering, replacement, and additional 

unit installation decisions can be accomplished feasibly and with lower costs than 

retrofitting an entire existing facility, it is appropriate to require the same entrainment 

mortality controls at new units as are applicable to new facilities per the Phase I rule. 

New units are similar to new facilities, regardless of whether that unit is a green field 

construction, an additional unit, a replacement unit, or a repowered unit. Further, EPA 

considered that new units would be similar to new facilities in terms of the useful 

expected plant life and therefore found in general this would mean that closed-cycle 

cooling would reduce entrainment mortality for a longer time than for existing facilities 

as a whole. Finally, since new units are more likely to be located in areas in attainment 

for national ambient air quality standards, EPA finds that air permit issues are also 

minimized for new units. Thus, EPA’s analysis shows closed-cycle cooling would be 

available to such facilities for the reasons described above and are economically 

achievable (see Section VII). 

In developing this proposed rule, EPA considered whether such requirements for 

new units would serve as a disincentive to replace older units and determined that this 

would not be the case given closed-cycle cooling’s comparable cost relative to oncethrough cooling and its small cost as a percentage of overall costs at the new unit. The 

capital costs of closed-cycle cooling are comparable to the capital costs of once through 

cooling with only a modest increase in O&M expenses of the cooling water system. 

Furthermore, the costs usually comprise less than 1 percent of the total costs of a new 
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unit. Recent experience indicates that the Phase I requirements are not a disincentive for 

new facility construction, as demonstrated by numerous instances where recently 

constructed facilities are using closed-cycle; see 66 FR 28856; also see 66 FR 28865. 

Further, EPA’s analysis shows the generating units projected to close are most likely to 

do so because they are older, unreliable, less efficient, and therefore generally 

unprofitable. See Section VII for more information. In some instances, insufficient 

water exists to continue to operate a facility with once-through cooling, or thermal 

discharge limitations preclude operation of once-through cooling; these facilities have 

employed cooling towers, partial towers, and helper towers resulting in an increased 

reliability. See DCN XX-XXX [svrs for Georgia, NY, and MW). 

EPA also considered a variation of Option 1 that would exclude existing facilities 

(except existing facilities that add a new unit) with a design intake flow under 50 MGD 

from the national impingement mortality requirements of today’s proposal (Option 4). 

These smaller facilities would continue to be permitted on a case-by-case, best 

professional judgment basis for both impingement and entrainment controls. Under this 

option, 98.9 percent of the monetized benefits of Option 1 are realized. In addition, 

almost all small businesses would be excluded from the impingement requirement of the 

national rule, thereby reducing impacts of the national rule to small businesses. The cost 

of Option 4 would result in savings of $57 million over Option 1. 

 EPA rejected Option 4 for the proposal as BTA because EPA found that Option 1 

is available, feasible, and demonstrated for all in-scope facilities on a national basis. 

Moreover, EPA analysis showed that economically Option 1 does not have a significant 

impact on a substantial number of small entities, including those that would be exempted 
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from the national impingement mortality controls under Option 4. Of the 13 full-facility 

closures discussed below in Section VII, none are predicted to be small businesses. 

Additionally, the analysis performed under the Regulatory Flexibility Analysis showed 

that under Option 1, five to six small entities would incur costs exceeding 1 percent of 

revenue and 3 small entities would incur costs exceeding 3 percent of revenue. As 

percentages of the estimated total of small in-scope entities (56-96 small in-scope 

entities, see above), these small entities represent 5-13 percent of small in-scope entities 

at the 1 percent of revenue threshold, and 3-5 percent of small in-scope entities at the 3 

percent of revenue threshold. 

Option 4 is similar to the final determination with respect to the Phase III rule, 

which relied on BPJ to determine impingement and entrainment BTA for all facilities 

with DIF less than 50 MGD. Unlike the Phase III determination, Option 4 would not rely 

on BPJ for new units at existing facilities or manufacturing facilities with DIF greater 

than 50 MGD. This is consistent with the recommendations of the Small Business 

Advocacy Review Panel for the Phase III rule, which noted that an applicability threshold 

in the range of 20 to 50 MGD would remove a significant number of Phase III facilities, 

but only a small percent of flow, from coverage under national requirements, and 

recommended that EPA analyze a range of potential thresholds, particularly those 

between 20 and 50 MGD. EPA is also aware of concerns that even though Option 1 by 

itself does not have a significant adverse impact on a substantial number of small entities, 

many of the small entities affected by the rule, particularly those in the electric power 

sector, are subject to cumulative impacts from a number of other major regulations that 

will likely have to be implemented in the same time frame as this rule. For the final rule, 
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EPA will also evaluate the relative costs and benefits of Option 4, once it has more 

complete benefits information, including results from its WTP Survey on impacts to fish 

populations. EPA solicits comment on Option 4 and the impacts, including the 

cumulative impacts of today’s proposal on small entities generally. EPA also requests 

comment on whether, if Option 4 were adopted for the final rule, it should include 

uniform national requirements for new units at existing facilities with DIF less than 50 

MGD based on closed-cycle cooling.

F. Four Factors Support EPA’s Decision to Establish Site-Specific BTA 

Entrainment Controls for Existing Facilities

The four key factors that support determining entrainment mortality controls on a 

site-specific basis (except with respect to new or repowered units) and rejecting Options 

2 and 3 are energy reliability, increased air emissions permits, land availability, and 

remaining useful life. First, EPA recognized that there may be potential adverse 

consequences to the reliability of energy delivery on the local level from the installation 

of cooling towers. Second, EPA also is aware that increased particulateair emissions may 

be associated with increased combustion of fossil fuel use as the result of installation of 

closed cycle cooling towers, and additional PM formulation associated with plume drift 

(thougheven with plume abatement costs were technology). These increased air 

emissions have human health, welfare, and global climate change impacts which must be 

considered in the cost of closed-cycle cooling),. Furthermore, it may be very difficult or 

impossible to obtain air permits for cooling towers at existing facilities located in 

nonattainment areas or attainment areas with maintenance plans. Third, EPA has 
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identified land availability concerns that might limit the feasibility of the installation of 

cooling towers on a site-specific basis. Finally, EPA concluded that there are 

circumstances in which construction and installation of cooling towers might not be 

warranted given the remaining useful life of a particular facility. How all of these factors 

support the Agency’s conclusion that site-specific, not national, entrainment controls for 

most existing facilities except those installing new or replacement units is discussed in 

detail below. 

1. Energy Reliability Should Be Considered on a Localized Basis 

During EPA’s site visits, several urban areas were identified where the existing 

transmission system would not be able to transfer sufficient electricity during periods of 

extended downtime. This limitation to reliability occurs even when a surplus of 

electricity can be generated within the same NERC region. For example, EPA identified 

localized circumstances in Los Angeles and Chicago where an extended outage of one or 

more generating units could not be readily replaced by excess capacity in nearby areas. 

Currently available models are not able to predict localized impacts, and instead are 

limited to measures of reserve capacity in broader geographic regions. This uncertainty 

about the extent and likelihood of local reliability impacts is an important consideration 

in the decision to propose requiring site-specific development of section 316(b) 

entrainment requirements. 

One approach EPA could have adopted in today’s proposed rule would have been 

to establish a uniform entrainment requirement and then to address these local reliability 

concerns by providing permitting authorities the flexibility to establish extended 

compliance timelines (i.e., 10 to 15 years) (see Option 2). This would have allowed 
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facilities to develop more workable construction schedules with their permit writers and 

coordinate with NERC to schedule installation down times accounting for generating 

supply reliability needs. This approach would have been consistent with EPA’s 

assessment that, at the national level (rather than local level), closed-cycle cooling would 

not pose material energy reliability consequences; see EA for more information. EPA 

was concerned that such a flexible approach, however, would not resolve all local 

reliability concerns, because currently available information is not adequate to establish 

either the extent or significance of possible electric reliability concerns. 

These same concerns would not apply in the case of the installation of new or 

replacement units because of the smaller nature of such projects and the availability of 

options like seasonal operation and portable cooling towers to address the flow reduction 

requirements. Since the unit is not yet online, the potential for local energy reliability to 

be compromised is minimal; also, local energy reliability is likely improved with the 

addition of the numbernew unit, even if older units are later retired. 

2. ParticulateIncreased Air Emissions Could Be a Factor on a Local Basis 

As previously discussed, closed-cycle cooling maywould result in increased air 

emissions. of various pollutants, including particulates, sulfur dioxide, nitrogen oxides, 

mercury, and greenhouse gases, among others.55 As a result of the installation of closedcycle cooling structures, fossil-fueled facilities maywould need to burn additional fuel 

(thereby emitting additional PM, CO2, SO2, NOX, and Hg). There are two reasons for 

this: 1) to compensate for energy required to operate cooling towers, and 2) slightly lower 

 

55 EPA recognizes that retrofitting closed cycle cooling could be combined with other energy efficiency or 

pollution control technologies with the net effect of reducing air emissions; however, facilities could (and 

may well have to under other rules) install such technologies anyway, without converting to closed cycle 

cooling as well. Comparing closed-cycle cooling to once-through cooling with all other technologies held 

constant, there is an energy penalty that would lead to greater air emissions.
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generating efficiency attributed to higher turbine backpressure. At new units, these 

impacts are much less significant because the turbine back pressure is reduced or in many 

cases completely negated when a new condenser is part of the new unit construction. 

FurtherIn contrast to retrofits, new units can have their cooling water intake systems 

optimized for cooling towers, reducing the size of the cooling towers, increasing their 

efficiency, and reducing energy requirements (see Section VI.E). U.S. fleet efficiency 

will likely increase over the long term, resulting in lower base emissions on a per watt 

basis, and the turbine back pressure penalty will be further reduced resulting in lower 

incremental emissions. EPA is aware that nuclear facilities would also need to 

compensate for energy required to operate cooling towers and for the turbine back 

pressure energy penalty. 

The impact of the increased emissions varies based on the local circumstances. 

For example,The increased emissions may consist of cooling tower emissions, stack 

emissions from increased fuel usage, and plumes of water vapor. EPA’s analysis 

suggests that any additionalthe most significant impacts will be specifically for PM2.5, 

which, in addition to increased mortality and morbidity, may result in a facility having 

difficulty in obtaining air permits in those localities in non-attainment for PM2.5 because 

of the need to identify offsets to its emissions. To some extent, drift EPA notes that 

while there is the potential for increases in PM (e.g., salt drift) in the vicinity of any wet 

cooling tower, there are plume abatement and drift eliminator technologies that may 

address this concern (and EPA has included costs for such technologies in its analysis of 

Options 2 and 3). However, emissions may not be eliminated entirely. EPA expects 

most effects of PM from cooling tower emissions would be so localized as to be wholly 

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on the facility’s property. (See DCN 10-6954.) EPA recognizes this is separate from PM 

emissions from the stack as a result of increased fuel usage. In addition, plumes of water 

vapor from the cooling tower may cause safety issues due to icing of nearby roadways, 

and visibility constraints for facilities located near an airport. EPA notes that while there 

is the potential for increases in particulate matter (salt drift) in the vicinity of any wet 

cooling tower, EPA’s costs include plume abatement and drift eliminator technologies. 

However, emissions may not be eliminated entirely. EPA’s review of emissions data 

from E-GRID (year 2005) suggests that impacts from other pollutants will be less 

significant, but on a localized basis these could still be significant. They include human 

health, welfare, and global climate change impacts associated with a variety of pollutant 

that are emitted from fossil fuel combustion generally. EPA is not able to quantify the 

frequency with which facilities may experience these local impacts, and therefore EPA 

believes a site-specific assessment must be conducted to fully address such local impacts. 

This is a much lesser concern in the case of new units. While new units may also result 

in particulate emissions, new units are more efficient and do not have a turbine back 

pressure that must be remedied by supplemental fuel burned. For example, turbine 

backpressure can be mitigated when condenser tubing is replaced, and therefore energy 

penalties and air emissions for tower operations can be minimized in the design phase. 

TDD at XXX. 

EPA believes that emissions are less of a concern at new units. The condensers 

can be optimized for closed-cycle, reducing energy requirements, and high efficiency 

cooling towers can be designed as partincorporated into the design of the new unit

replacement,, potentially allowing for installation of smaller cooling towers or smaller, 
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portable cooling towers. Turbine backpressure and the associated energy penalty can be 

eliminated in some locations. TDD at XXX. Furthera new unit. However, new units 

would also not present a similar concern to the extent they are replacing existing, less 

efficient units, such that the netwill still have a parasitic energy penalty. Therefore 

energy penalties and air emissions decrease. To the extent the new unit is an additional 

unit to add capacity to power generatingfor tower operations can be minimized but not 

eliminated. The effects of requiring closed cycle cooling at new units of existing

facilities, the impacts are identical to is similar to the effects of this requirement at new 

facilities and would not pose an unacceptable impact. In effect, these units are no 

different from a unit at a Phase I facility. See the TDD for more information.

3. Land Availability Could Be A Factor on a Localized Basis 

While EPA’s record indicated that the vast majority of facilities have adequate 

available land for placement of cooling towers,56 some facilities do have legitimate 

feasibility constraints. Based on site visits, EPA has found that several facilities have 

been able to engineer solutions when faced with limited available land. EPA attempted 

to determine a threshold of land (for example, one option explored a threshold of 

approximately 160 acres per GW) below which a facility could not feasibly install 

cooling towers. While EPA originally estimated as many as 23 percent of facilities 

would not have enough space57, EPA found some facilities with a small parcel of land 

were still able to install closed-cycle cooling by engineering creative solutions. On the 

 

56 In the case of fossil fuel plants, scrubber controls may also be newly required to comply with air rules 

and standards. 

57 EPRI reported at least 6 percent of sites evaluated were deemed “infeasible” on the basis that no space 

was available on which to locate a cooling tower. (DCN 10-6951) While EPA does not have access to the 

facility level data, and is therefore unable to confirm the infeasibility analysis, EPRI’s report supports 

EPA’s assertion that there is significant uncertainty around space constraints for facilities to install closedcycle cooling.

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other hand, EPA found that some facilities with large acreage still could not feasibly 

install cooling towers due to local zoning or other local concerns. In conjunction with 

setback distances to mitigate noise and plume abatement (based on GPS mapping of 

residential areas), EPA estimates as many as 25 percent of facilities may have one or 

more constraints on available space that would limit retrofit of cooling towers for the 

entire facility. or would result in increased compliance costs. At this time, EPA lacks 

adequate data to better analyze how land constraints can be accommodated at existing 

facilities. 

In contrast, for new units, because the amount of space dedicated to closed-cycle 

would be limited to the new unit rather than the entire facility, space constraints would be 

much less of an issue for new units.. New units also pose the opportunity to properly 

design an optimized closed-cycle cooling system for the new unit. Retrofitting an entire

existing facility would require a facility to identify (or possibly obtain) enough acres to 

accommodate the cooling towers and their tie-in. By not uniformly requiring facilities to 

retrofit to closed-cycle, EPA has determined that more land is available for new unit 

construction, especially in light of compact design and more efficient use of limited 

resources. Furthermore, new units and their corresponding cooling system can be built in 

stages rather than as a facility-wide retrofit. 

 While EPA has concluded that space constraints would not foreclose the 

installation of closed cycle cooling for new units at existing facilities, EPA has concerns 

about whether, on a national basis, physical geography would constrain the full retrofit of 

closed-cycle cooling to existing facilities. Under the circumstances, EPA decided not to 

propose uniform entrainment standards for all existing facilities based on closed-cycle 
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cooling. Instead, EPA has determined that it should establish a process for site-specific 

determination of entrainment controls. Site-specific proceedings would provide the 

opportunity to address these issues, along with the other factors discussed in this 

preamble in determining which additional entrainment mortality controls, if any, are 

appropriate. 

4. Remaining Useful Plant Life could be a Factor on a Facility Basis 

Many facilities are nearing the end of their useful life. Considering the long lead 

time to plan, design, and construct closed-cycle cooling systems such as wet cooling 

towers, EPA proposes that the permit authority should be given the latitude to consider 

the remaining useful plant life in establishing entrainment mortality standards for that 

facility. The remaining useful plant life along with other site-specific information, would 

affect the evaluation of the benefits (non-monetized and monetized) of closed-cycle at a 

particular facility. For example, closed-cycle at a facility that is going to shut down in 3 

years would not result in the benefits that a facility that would continue to operate for 20 

years. Because of this factor, EPA proposes that requiring closed-cycle cooling should 

be evaluated on a facility-specific basis, arguing against a uniform national entrainment 

mortality standard. 

This is obviously not an issue for new units. A new unit has its full useful life 

before it and thus would experience the maximum possible entrainment mortality 

reductions throughout that useful life. Considering this factor, EPA is proposing that new 

units are to be treated the same as new facilities. EPA therefore believes this factor, 

along with the other factors discussed above, indicates that it is reasonable to require new 

units to meet entrainment mortality requirements based on closed-cycle cooling. 
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G. The Process for Establishing Site-Specific BTA Entrainment Controls

The Agency could have developed a proposed rule based on closed-cycle cooling 

as BTA that provides exceptions to take into account each of these four factors 

individually. In other words, EPA could have developed an option that would require 

closed-cycle cooling, but the rule would also necessarily provide numerous alternatives 

and exceptions to specifically address each of the identified factors. In EPA’s judgment, 

discussion of these site-specific limitations would be a frequent part of the permitting 

discussion and therefore, in practice such a rule would in fact be a site-specific 

determination. This argues forEPA believes that the factors discussed above support

establishment of BTA entrainment requirements on a site-specific basis and counsels 

against establishing a national rule based on a single BTA technology for entrainment 

controls. In addition, there are other factors that also support site-specific decisionmaking. Thus, as noted, for example, a national weighing of cost and benefits tends to 

mask important local differences and argues for site-specific evaluations. 

As a result, EPA proposes that closed-cycle cooling for all existing units is not 

BTA on a national basis, except for new units at existing facilities. In EPA’s view, a rule 

that would require closed-cycle cooling everywhere but provided described factors to 

“opt-out” of closed-cycle would be unnecessarily complex and would not provide an 

environmental outcome any different than that of today’s proposed rule.

EPA has decided to propose Option 1 as the basis for national performance 

standards that represent the “best technology available” for cooling water intake 

structures at existing facilities. EPA propsoesproposes that a uniform national 

impingement standard coupled with entrainment controls determined on a site-specific 
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basis represents the best technology available for minimizing the adverse environmental 

impacts associated with intake structures. EPA’s proposed decision to reject a single 

uniform national entrainment standard is based on closed-cycle cooling not being the 

“best technology available” on a national basis and not warranted under the 

circumstances. This proposed decision flowed from EPA’s consideration of the factors 

described above and its conclusion that establishmentdetermination of BTA for

entrainment controls through a process that allowed full and site-specific assessment of 

these factors associated with variousrespect to candidate entrainment controls including 

closed-cycle cooling represented the most appropriate course here. 

H. Implementation

 EPA’s proposal would require a site-specific determination of BTA. In that 

process, the permit writer would have access to all the information necessary for an 

informed decision about whether to adopt closed-cycle cooling or some otherwhich 

additional technology to reduce entrainment mortality, if any, is BTA, including a full 

consideration of whether the results of EPA’s proposed stated preference survey to more 

fully monetize benefits. justify the costs.

In EPA’s view, entrainment mortality controls are appropriate in virtually all 

circumstances. The proposed decision not to establish uniform national entrainment 

controls was not a decision that no controls are required. The rejection of one-size-fitsall does not mean that no-size-fits-all. Rather, the best way to determine entrainment 

controls is on a site-by-site basis. The adoption of the proposed Option 1 approach of 

site-specific BTA entrainment decisions will result in one of threetwo outcomes at any 

facility: BTA is closed cycle cooling, BTA is an entrainment mortality technology 
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beyond what the facility has already installed (this may include closed cycle cooling or 

other than closed cycle cooling, andtechnologies, see Section VI. B and C), or BTA 

requires no additional controls for entrainment mortality. Thus, EPA expects that, under 

the proposed approach, there will be additional entrainment controls for mostsome

facilities and, where conditions warrant, after weighing the available information, 

Directors will require many facilities to install closed-cycle cooling to address 

entrainment none for others. 

 EPA notes that in a number of areas of the country (California, Delaware, New 

York and New England; see DCNxxxx, e.g., DCNs 10-6963 and 10-6841, as well as EPA 

Region I’s Brayton Point), permitting authorities have already required or are considering 

requiring existing facilities to install closed-cycle cooling operations. EPA supports 

those state efforts and determinations and thinks that similar decisions would be able to 

be made under this proposed rule. 

 The proposal would require that the facility’s permit application must include the 

following information: the facility would submit an engineering study of the technical 

feasibility and incremental costs of candidate entrainment mortality control technologies. 

The facility would also study, evaluate, and document: the technical feasibility of 

technologies at a minimum including closed-cycle cooling and fine mesh screens with a 

mesh size of 2 mm or smaller; engineering cost estimates of all technologies considered; 

any outages, downtime, or other impacts to revenue along with a discussion of all 

reasonable attempts to mitigate these cost factors; and a detailed discussion of the 

magnitude of water quality benefits, both monetized and non-monetized, of the candidate 

entrainment mortality reduction technologies evaluated. Finally, the study must include a 
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detailed discussion of the changes in non-water quality factors attributed to technologies 

and/or operational measures considered, including but not limited to increases and 

decreases in the following: energy consumption; thermal discharges; air pollutant 

emissions including particulates and their health and environmental impacts; noise; safety 

(e.g., visibility of cooling tower plumes, icing); grid reliability, and facility reliability. 

See Section IX for a thorough discussion of these study requirements. 

 Certain facilities would submit an Entrainment Characterization Study including 

an entrainment mortality data collection plan that would includeindicate, at a minimum, 

the specific entrainment monitoring methods, taxonomic identification, latent mortality 

identification, documentation of all methods, and quality assurance/quality control 

procedures for sampling and data analysis appropriate for a quantitative survey. EPA 

would also require peer review of the entrainment mortality data collection plan. Peer 

reviewers would be selected in consultation with the Director who may consult with EPA 

and Federal, State, and Tribal fish and wildlife management agencies with responsibility 

for fish and wildlife potentially affected by the cooling water intake structure(s). Further, 

facilities with greater than 125 MGD AIF must complete an Entrainment 

Characterization Study. The Entrainment Characterization Study (ECS) (ECS). The 

ECS could include information already collected to meet current § 122.21(r)(2) – (r)(4) 

requirements. With the information in this study, the permit writer will know more about 

potential entrainment mortality reductions. Data from the ECS would also corroborate 

any through-plant entrainment survival study results from Performance Studies 

conducted in 122.21(r)(7). Data collected as part of the ECS would support the Benefits 

Valuation Study in 122.21(r)(11) by parsing entrainment mortality, for example, by 
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recreational/commercial species and those species that are strictly forage species,58 by 

species most susceptible to thermal effects (including thermal barriers), and by species of 

particular local or regional concern and threatened and endangered species. EPA’s 

benefits estimate were based on an extrapolation of available I&E mortality studies; the 

specific entrainment characterization study conducted by a facility may lead to a different 

estimate of I&E mortality for that facility than its portion of EPA’s regional estimate in 

the analysis in Section VIII. 

The purpose of the ECS is to better understand, and thus help minimize, the 

impact of entrainment on species of concern. More specifically, the ECS should identify 

species of concern that may be entrained, and estimate their baseline mortality rates given 

current entrainment controls. Moreover, the ECS should include as much information as 

practical about the aquatic ecosystem effects of entrainment mortality of species of 

concern mortality. An understanding of the potential ecosystem consequences of species 

of concern entrainment mortality for species of concern will help inform decisions about 

permit requirements for additional technologies and management practices. EPA will 

endeavor to identify high quality examples of ECSs as they are completed, and post them 

to the web site for this rule as a resource for ECS preparation. 

Following the permit writer’s review of this information, the permit writer must 

determine what BTA entrainment standard to propose and explain in writing the basis for 

the proposal. The written explanation and the draft permit would then be available for 

comment from the interested public under the Permitting Authority’s normal permitting 

process. Therefore, EPA’s proposed BTA standard would establish uniform 

 

58 Distinctions between predator and prey cannot be made on the basis of species alone; the young of some 

recreational and commercial species function as forage fish. 
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requirements for impingement mortality and a process in which BTA entrainment 

controls would be determined on a site-specific basis. 

I. EPA’s Costing of the Preferred Option

For the purposes of this proposal, EPA has prepared an economic analysis 

according to Executive Order 12866. For the preferred option, this analysis incorporates 

the full costs and partially monetized benefits of impingement controls, including the 

costs of conducting the entrainment characterization studies. However, EPA has not 

attempted to forecast the results of the site-specific determination of BTA for 

entrainment, and neither costs nor benefits are formally analyzed for this component of 

the proposed rule. There will obviously be additional costs and benefits associated with 

reductions in entrainment mortality that would result under Option 1 when a Director 

decides that closed-cycle cooling or some other technology that addresses entrainment 

(e.g., partial closed-cycle, relocating intakes offshore, fine mesh cylindrical wedgewire, 

seasonal operation of closed-cycle, etc.) is BTA for specific facilities. Though rejected as 

BTA, Option 3 includes an analysis of the costs and benefits of requiring closed-cycle 

cooling at all facilities above 2 MGD. A comparison of the baseline and Option 1 

adverse environmental impacts as expressed in age-1 equivalents shows that Option 1 

reduces AEI by 31 percent. A similar comparison of the baseline to Option 3 shows that 

Option 3 reduces AEI by 92 percent. Thus the full range of possible entrainment 

reductions of Option 1 is represented by the range of estimates between Options 1 and 3, 

or 31 to 92 percentThere may be additional costs and benefits associated with reductions 

in entrainment mortality that result from the Director’s BTA entrainment determinations. 

Because this process will play out over the next 10 to 15 years as Directors consider 

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waterbody-specific data, local impacts, and public comment, and weigh costs and 

benefits of further entrainment reductions, air quality impacts, grid reliability, and land 

availability, estimates of the costs of these site-specific determinations would be highly 

speculative. 

As will be presented in more detail below, EPA could not fully monetize the 

benefits associated with reductions in impingement and entrainment mortality and thus 

did not base its proposed decisions on a monetized comparison of costs and benefits; 

EPA intends to conduct a stated preference survey to more fully monetize benefits prior 

to promulgation of the final rule. However, Option 1 recognizes that a consideration of 

costs and benefits can be made as part of the site-specific determination process. Option 

1 requires a facility to prepare an Entrainment Characterization Study. This would allow 

the Director to consider the costs and benefits of different controls in their site-specific 

determination. As noted above, EPA considered the costs of closed-cycle cooling as 

BTA for entrainment mortality, but in consideration of the factors outlined above rejected 

closed-cycle as a uniform national entrainment requirement. 

For illustrative purposes, EPA analyzed two hypothetical outcomes for sitespecific BTA determinations under Option 1. EPA analyzed the cost of closed-cycle at 

the 76 largest fossil fuel plants withdrawing from tidal waters and arrived at an annual 

compliance cost for these facilities of $762 million. EPA also analyzed a variant on the 

above scenario. EPA estimates this second scenario would involve 46 facilities at an 

annual compliance cost of $480 million, assuming only baseload and load following 

facilities would retrofit to closed-cycle cooling.
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These hypothetical scenarios illustrate the site-specific costs if a significant 

number of facilities install and operate a closed-cycle cooling system. These scenarios 

assume facilities would install only closed-cycle cooling and operate it year-round. This 

may represent an upper-bound cost for those facilities. EPA also assumed that cooling 

towers will be installed at fossil fuel plants within 10 years. EPA is aware that there are 

other possible scenarios for projecting which facilities might be required to install closedcycle cooling or other entrainment mortality technologies as a result of individual BTA 

determinations. Some of these would show lower or higher costs than those presented 

here. EPA requests comment on other scenarios that might better capture the range of 

costs that result from the structured analysis of entrainment mortality BTA required by 

today’s proposed rule.

J. Consideration of Cost/Benefit on a Site-Specific Basis

In evaluating different options for national establishing performance standards for 

entrainment controls, as the Supreme Court in Entergy made clear, one factor that EPA 

may clearly consider is the costs and benefits associated with various control options. A 

nation-wide comparison of costs and That is, in setting standards, EPA may consider the 

benefits, however, was not a deciding factor for this proposal. As explained above, a

combination of four main factors supports not establishing a single, uniform national 

entrainment requirement. EPA’s calculation of reduced impingement and entrainment 

benefits of closed cycle cooling does not account for 97 percent of the direct use A1E of 

organisms entrained by cooling water intakes. Moreover, the monetized benefit values 

do not include the majority of the indirect use and nonuse value of the derived from 

reductions in I&E mortality, and completely exclude categories such as the non-
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commercial portion ofthe adverse environmental impacts to threatened and endangered 

species, the thermal discharge impacts to water quality, and species composition. Under 

these circumstances, a national weighingassociated with cooling water intake structures 

and the costs of achieving the reductions. As previously explained, EPA has determined 

that the benefits of the proposed rule justify its costs. In addition, EPA has explained 

why consideration of costs and benefits is not possible at this time. Instead, EPA 

proposes, after considering relevant factors such as energy reliability, air emissions 

permits, space availability, useful plant life, and benefits on a local basis, that BTA 

entrainment requirements should be established for each in-scope facility on a also 

appropriate in the site-specific basis. While a nation-wide cost/benefit assessment was 

not a factor in EPA’s decision to reject uniform BTApermit setting when establishing

entrainment controls and to propose a rule requiring .

In the site-specific determinations, cost/benefit evaluations are, however, 

particularly useful considerations when making site-specific entrainment determinations. 

Indeed, the more than 30-year history of section 316(b) permitting decisions 

illustratesproceeding, the role that cost/benefit considerations have played.permit writer 

would be required to consider, among other factors, quantified and qualitative social 

benefits and social costs of available entrainment controls, including ecological benefits 

and benefits to any threatened or endangered species. The permit writer would be able 

to reject otherwise available entrainment controls if the costs of the controls are not 

justified by their associated benefits (taking into account both quantified and nonquantified benefits) as well as the other factors discussed in the proposed rule. Formatted: Font color: Auto
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In making the site-specific entrainment BTA determination, the proposal 

requireswould require that the Director consider the information required under § 

122.21(r) to be submitted with the section 316(b) permit application. Further, in the case 

of the larger cooling water intake structures (125 MGD AIF or greater), the proposed rule 

requireswould require submission of additional information that includes including, 

among other things, studies on entrainment at the facility, the costs and feasibility of 

control options, and information on the monetized and non-monetized benefits of 

entrainment controls. In evaluating benefits, the Director should not ignore those benefits 

that cannot be monetized and rely solely onconsider only the I&E reductions that can be 

counted. The assessment of benefits must take into account all benefits, including 

categories such as recreational, commercial and other use benefits, benefits associated 

with reduced thermal discharges, reduced losses to threatened and endangered species, 

altered food webs, nutrient cycling effects, and other nonuse benefits. Merely because 

there is no price tag on those benefits does not mean that they are not valuable. 

Under the proposal, the Director must explain the basis for rejecting the 

technologies consideredan available technology not selected for entrainment control in 

light of the submissions, with a consideration of costs and benefits, and the same four 

factors that argued against a uniform requirement for closed-cycle cooling. EPA expects 

that the Director’s decision about BTA controls will also reflect consideration of the costs 

and benefits (monetized and non-monetized) of the various control technologies 

considered for the facilities. 

EPA expects that a consideration of the costs and benefits of BTA entrainment 

controls will be an important element of the site-specific decision. EPA has long 
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construed Section 316(b) to permit consideration of the relationship between costs and 

benefits. Cf. Barnhart v. Walton, 535 U.S. 212, 220 (2002). Thus, when the Fourth 

Circuit remanded EPA’s first 316(b) national regulations in 1977, Appalachian Power 

Co. v. Train, 566 F.2d 451 (1977), EPA withdrew the remanded regulations and directed 

permitting authorities to use their best professional judgment to determine BTA for each 

facility on a case-by-case basis. See 40 CFR 401.14. In 1977, EPA distributed a draft 

guidance document that proposed a process for determining BTA on a facility-specific 

basis. See 69 Fed. Reg. 41,584.

As noted, the permit writer may reject an otherwise available entrainment 

technology as BTA (or not require any BTA controls) if the costs of the controls are not 

justified by the benefits. EPA decided to adopt this approach in determining site-specific 

entrainment controls because it is permissible under Entergy and consistent with the more 

than 30-year history of section 316(b) permitting decisions as well as E.O.13563. 

This history illustrates the role that cost/benefit considerations have played. As 

early as 1977, EPA issued a permitting decision and a General Counsel opinion that 

explained that, while Section 316(b) does not require a formal cost-benefit analysis, it 

would not be “reasonable to interpret Section 316(b) as requiring use of technology 

whose cost is wholly disproportionate to the environmental benefit to be gained.”the 

relationship of costs and benefits may be considered in 316(b) decision-making. In re 

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), No. 76-7, 1977 WL 22370 

(June 10, 1977), remanded on other grounds, 572 F.2d 872 (1st Cir. 1978); accord In re 

Central Hudson Gas & Elec. Corp., Op. EPA Gen. Counsel, NPDES No. 63, 1977 WL 

28250, at *8 (July 29, 1977). In the more than 30 years since then, EPA and state 
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permitting authorities have considered the relationship between costs and benefits to at 

least thatsome extent in making individual permitting decisions. See, e.g., In re Pub. 

Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), No. 76-7, 1978 WL 21140 (E.P.A. 

Aug. 4, 1978) (finding that an alternative’s costs would be wholly disproportionate to its 

benefits), aff’d, Seacoast Anti-Pollution League v. Costle, 597 F.3d 306, 311 (1st Cir. 

1979) (upholding the agency’s consideration of costs). 

Because E.O.13563 directs agencies to propose and adopt rules only upon a 

reasoned determination that the benefits justify the costs, EPA is proposing to apply this 

same standard in BTA entrainment determinations. This approach is consistent with the 

framework EPA has traditionally followed and would allow for a full assessment in 

permit decisions of both qualitative and quantitative benefits and costs. As designed, 

EPA’s proposed requirement for the establishment of site-specific BTA entrainment 

requirements strikes an appropriate balance between environmental improvements and 

costs, allowing the permitting authority to consider all of the relevant factors on a sitespecific basis and determine BTA on the basis of those factors.

After considering all of the factors relevant to a particular site, the Director must 

establish appropriate entrainment controls at those facilities. The Director must review 

available control technology and require the bestmay reject otherwise available 

entrainment controls whose cost is as BTA if the social costs of the controls are not 

wholly disproportionate to justified by their associated benefitssocial benefits (taking into 

account both quantified and non-quantified benefits) or if there are other adverse factors 

that cannot be mitigated that the Director deems unacceptable. As designed, EPA’s 

proposed requirement for the establishment of site-specific BTA entrainment 

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requirements strikes an appropriate balance between environmental improvements and 

costs by electively requiring closed-cycle cooling or other entrainment technologies at 

some facilities, without requiring the same technologies at all facilities. 

 

VII. Economic Impact of the Proposed Rule 

This section summarizes EPA’s analysis of the social cost and economic impact for the 

following regulatory options: Option 1: Impingement mortality (IM) limitations based on 

modified traveling screens for all facilities with flow greater than 2 million gallons per 

day (MGD), closed cycle cooling or its equivalent for new units, and a site-specific 

determination of entrainment BTA for all other facilities: Option 2: Intake flow 

commensurate with closed-cycle cooling for facilities that have a design intake flow of 

greater than 125 MGD and IM limitations based on modified traveling screens for all 

facilities with flow greater than 2 MGD, and; Option 3: Intake flow commensurate with 

closed-cycle cooling for all facilities and IM limitations based on modified traveling 

screens, for all facilities with flow greater than 2 MGD. ; and Option 4: Impingement 

mortality (IM) limitations based on modified traveling screens for all facilities with flow 

greater than 50 million gallons per day (MGD), closed cycle cooling or its equivalent for 

new units, and a site-specific determination of entrainment BTA for all other facilities

and of impingements mortality controls for facilities with flow less than or equal to 50 

MGD. These options are described more fully in Section VI.C. 

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 The first part of this section provides an overall summary of the costs of the 

regulatory options to complying facilities and federal and state governments. This 

discussion is followed by a review of the method for developing compliance cost 

estimates. The third part provides an estimate of the total social costs of the regulatory 

options. The final part reviews the economic impact of the regulatory options. 

A. Overview of Costs to Complying Facilities and Federal and State 

Governments

 For estimating the total cost and economic impact of the regulatory options 

presented in this preamble, EPA estimated costs associated with the following cost 

components: initial fixed and capital costs, annual operating and maintenance costs, 

downtime costs, recordkeeping, monitoring, studies, and reporting costs. The cost 

estimates reflect the incremental costs attributed only to today’s proposal. For example, 

facilities with closed-cycle recirculating systems would likely already meet all of the 

proposed performance standards, and therefore most facilities with closed-cycle cooling 

would not incur costs to retrofit new technologies (though such facilities would still incur 

some components of permitting costs). EPA assumes, based on its technical survey data 

that most closed-cycle cooling systems operate with an intake velocity of less than 0.5 

fps, and so would comply with the impingement BTA requirements. However, EPA 

recognizes a facility with closed-cycle cooling may incur additional costs to meet the 

proposed performance standards; some facilities with closed-cycle cooling were assumed 

to incur costs of modified screens with a fish handling and return system. Because EPA 

assumes the fish handling and return system would meet the requirements to eliminate 

entrapment, EPA has not included further costs for entrapment.
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 For the economic analyses, EPA distinguished between the two industry groups 

covered by the standards for existing facilities as follows: 

Manufacturing and Other Industries (“Manufacturers”) – facilities in the paper, 

aluminum, steel, chemicals, petroleum, food and kindred products, and other 

industries. In addition to engaging in production activities, some of these facilities 

also generate electricity for their own use and occasionally for sale. 

Electric power producers (“Electric Generators”) – facilities owned by investorowned utilities, municipalities, States, Federal authorities, cooperatives, and 

nonutilities, whose primary business is electric power generation or related 

electric power services. 

 Costs to complying Electric Generators and Manufacturers include technology 

costs, cost of installation downtime, and costs of administrative activities; in addition, 

electric generating facilities are expected to incur certain energy penalty costs (Seesee

Chapter 3 of the EBA report for a discussion of costs to complying facilities and of 

implementation costs to federal, State, and local governments). Manufacturing facilities 

may also need additional electricity to run certain technologies, but if they do not produce 

this electricity themselves, these additional energy requirements are included in operating 

costs, rather than accounted for separately as an energy penalty. Electric Generators 

incurring these costs include facilities owned by private firms, governments, and electric 

co-operatives. Manufacturers incurring these costs include facilities owned by private 

firms only. The administrative costs to federal, State, and local governments include the 

costs of rule implementation – e.g., permits, monitoring, and working with in-scope 
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facilities to achieve compliance. Costs are initially developed on a pre-tax, as incurred, 

basis. These costs underlie the analysis of the social costs of the regulatory options and 

are also used in assessing the impact of compliance requirements on in-scope facilities 

and the affected industrial categories. In the analysis of facility impacts, costs are 

accounted for on an after-tax basis. 

B. Development of Compliance Costs

 This section describes the data and methods used to estimate compliance costs of 

the options considered and the costs of today’s proposed rule. Costs were developed for 

technology controls to address impingement mortality separately from controls for 

entrainment mortality, as the requirements of the various rule options considered would 

lead to different technologies being used by each facility to comply. Some of the options 

considered would impose different compliance timelines for impingement mortality and 

entrainment mortality technologies. As a result, different methodologies were used and 

each is briefly described below. More detailed information on these methodologies, as 

well as costs of other technologies and regulatory approaches are available in the TDD. 

1. Combined Facility-specific and Model-facility Approach 

 EPA develops national level costs estimates for facilities within scope of the 

various regulatory options. In general, facility-specific data can be used to determine 

what requirements apply to a given facility or whether that facility would already meet 

the requirements set forth in the proposed rule. This approach requires facility-specific 

technical data for all of the approximately 1,200 existing facilities in scope. An 

alternative approach is to develop a series of model facilities that exhibit the typical 
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characteristics of the affected facilities and calculate costs for each model facility; EPA 

would then determine how many of each model facility would be needed to accurately 

represent the full universe of affected facilities. 

 EPA has estimated costs for potentially regulated facilities using a combination of 

the facility-specific and model facility approaches. The facility-specific approach used in 

this effort involved calculating compliance costs for 891 individual facilities for which 

EPA had detailed technical data from its various industry questionnaires regarding the 

intake design and technology. Specifically, these are the in-scope facilities that 

completed the detailed technical questionnaire. Where facilities reported data for 

separate cooling water intake structures (CWISs), compliance costs may have been 

derived for each intake and these intake costs were summed together to obtain total costs 

for each facility. These facilities became model facilities and each facility’s costs were 

then multiplied by a weighting factor (derived from a statistical analysis of the industry 

questionnaire) specific to each facility to obtain industry-wide costs for the national 

economic impacts analyses. The weighting factors are similar to ones derived during the 

development of the 2004 Phase II Rule for extrapolating the impacts of DQ facilities to 

all in-scope facilities [DCN 10-XXXX]..

2. Updates to the Survey Data 

 In the 2004 Phase II rule, EPA developed facility-specific cost estimates for all 

facilities and published those costs in Appendix A (69 FR 41669). Since the initial 

implementation of the 2004 Phase II rule, EPA identified several concerns with using 

only the facility-specific costing approach, as well as the use of those costs in Appendix 

A. Since 2004, EPA has collected data from industry and other groups as described in 
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section III. These data generally reflect changes to actual intake flow, design intake flow, 

intake velocity, technology in place, and operational status. EPA developed a new master 

database including this new data to supplement the data from the detailed technical 

questionnaire. Although it has been approximately 10 years since the detailed technical 

questionnaire was initially collected, EPA has conducted over 50 site visits, reviewed 

current permits, and conducted literature reviews including comparisons to data collected 

by EPRI, EIA, and EEI. Based on that review EPA has concluded the master database is 

representative and appropriate for most facilities.59 The following section describes how 

EPA used this new database to estimate compliance costs. 

3. Tools for Developing Compliance Costs 

 During the 2004 Phase II rule, EPA began developing a spreadsheet based tool 

that would provide facilities and permit authorities with a simple and transparent method 

for calculating facility-specific compliance costs. EPA refined the tool in developing the 

Phase III regulations. EPA has since made further refinements to the cost tool, which was 

used to calculate the compliance costs for impingement mortality for today’s proposed 

rule. The cost tool employs a decision tree (see the TDD for a graphical presentation of 

the decision tree) to determine a compliance response for each model facility and assigns 

a technology “module” that represents a retrofit to a given technology. Cost estimates are 

derived through a series of computations that apply facility-specific data (such as DIF, 

width of intake screens, etc.) to the selected technology module. Cost tool outputs 

include capital costs, incremental operation and maintenance (O&M) costs, and 

installation downtime (in weeks). 

 

59 EPA notes that, while it has not collected updated technical information for every facility, it has updated 

financial data, as discussed later in this section. 
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 To calculate the compliance costs of retrofitting to closed-cycle cooling for 

controlling entrainment mortality, EPA utilized a second tool based on a cost-estimating 

spreadsheet developed by the Electric Power Research Institute (EPRI). [DCN 10-

XXXX] EPRI’s first draft methodology presented three different levels of capital cost 

(Easy, Average, Difficult) based on the relative difficulty of the retrofit project. For 

electric generators, EPA used costs for the Average level of difficulty, as it was 

developed across a broad spectrum of facilities and is the most appropriate for estimating 

national level costs60. For manufacturers, EPA used the Difficult level of retrofit costs. 

This reflects the more complex water systems and generally more frequent technical 

challenges to retrofitting closed-cycle cooling at a manufacturing facility. While some 

manufacturers only withdraw cooling water for power or steam generation, many 

manufacturers have multiple units or processes that utilize cooling water. In site visits, 

EPA found the largest manufacturing facilities would require multiple retrofits, and 

accordingly believes the Difficult level of retrofit costs is more representative for 

purposes of estimating national level costs. Additionally, EPA’s tool includes additional 

modifications to EPRI’s methodology, such as increased compliance costs for 

approximately 25 percent of facilities to reflect the additional expense of noise control or 

plume61 abatement, and using only the cooling water flow rate for non-contact cooling 

water flow62 for purposes of estimating costs for closed-cycle cooling. EPA has included 

the spreadsheet tools in the docket for the proposed rule to assist both facilities and 

 

60 For purposes of energy reliability estimates, EPA used the Difficult level for electric generators. 61 The EPRI tool includes drift abatement technologies in its cost assumptions, so no additional costs were 

included for drift eliminators. 

62 As described in the TDD, EPA only used non-contact cooling water flows in determining the proper size 

for wet cooling towers, the technology that forms the technical basis for entrainment mortality. Cooling 

towers are not widely used for contact cooling or process water, so these flows were excluded. For electric 

generators, the vast majority of flow is non-contact cooling, but manufacturers are more varied in their 

water usage. 
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permit authorities in estimating compliance costs. (See DCNs 10-[XXX]-6655 and DCN 

10-[XXX].)-6930).

4. Which Technologies Form the Basis for Compliance Cost Estimates? 

 EPA identified two broad classes of control technologies that may be used 

singularly or in combination to comply with the proposed rule. These classes of control 

technologies are: 1) technologies that address impingement mortality (IM) and 2) 

technologies that address entrainment mortality (EM). See Section VI for further details. 

Under the various options considered, a facility may be subject to one or both 

requirements, depending on their configuration, technologies in use, or other site-specific 

factors. 

 For the impingement mortality requirements, EPA analyzed data from a wide 

variety of technologies and facilities and concluded that modified Ristroph (or 

equivalent) coarse mesh traveling screens are the most appropriate basis for determining 

the compliance costs.63 As discussed in Section VI of the preamble, a facility may also 

comply with impingement mortality requirements by meeting a maximum intake velocity 

limit. Based on facility-specific data, EPA made a preliminary assessment of which 

model facilities would not currently meet impingement mortality requirements through 

either approach, and assigned technology costs based on the installation of modified 

traveling screens with a fish handling and return system. This assigned technology is 

assumed to meet the BTA standard (see § 125.94(b)). However, some facilities might 

 

63 Note that this does not preclude the use of other technologies; EPA simply used the available 

performance data in deriving the performance requirements and excluded technologies that were either 

inconsistent performers or did not offer sufficient data for analysis in a national categorical regulation. 

EPA’s research has shown that other technologies may also be capable of meeting the proposed 

requirements, but EPA did not opt to identify these technologies as the technology basis for today’s 

proposal. 
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still incur costs for restructuring their intakes to avoid entrapment.64 EPA solicits 

comment and data on the costs of this requirement.

 For facilities subject to entrainment mortality requirements, EPA selected wet 

cooling towers as the technology basis for determining the compliance costs. In some 

cases, costs reflect installation of multiple technologies, as impingement mortality and 

entrainment mortality requirements were applied separately to each facility. EPA also 

evaluated other technologies for reducing entrainment mortality, such as seasonal 

operation of cooling towers, partial towers, variable speed pumps, and fine mesh screens. 

The performance of these technologies is further described in section VI; a detailed 

discussion of how the costs were developed may be found in the TDD. 

5. How is Facility Downtime Assessed? 

 Downtime is the amount of time that a facility may need to shut down due to the 

installation of a compliance technology. Downtime estimates primarily assume that the 

facility would need to completely shut down operations to retrofit an intake, such as 

relocating an intake, connecting wet cooling towers into the facility, or reinforcing 

condenser housings. Downtime estimates are provided as incremental outages, taking into 

account the periodic outages all facilities already incur as part of preventative 

maintenance or routinely scheduled outages. For example, nuclear facilities have 

refueling outages approximately every 18 months lasting approximately 40 days65..

66 

The entrainment control implementation periods, 10 years for fossil fuel plants and 15 

 

64 Facilities incurring costs for impingement mortality are assumed to meet the requirement for entrapment. 

Because EPA does not know how many facilities that already comply with impingement mortality 

requirements would incur additional costs to avoid entrapment, EPA conducted a sensitivity analysis of the 

additional costs; see Chapter 12 of the TDD.

65 Nuclear Energy Institute (NEI) reported average length of outage from 2003 to 2009. 66 Nuclear Energy Institute (NEI) reported average length of outage from 2003 to 2009.
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years for nuclear plants, in Options 2 and 3 would provide facilities with an opportunity 

to schedule the retrofit when other major upgrades are being done, reducing downtime. 

 For most facilities subject to impingement mortality, no downtime was assigned. 

Facilities that are replacing or rehabilitating existing traveling screens typically do so one 

intake bay at a time without affecting the overall operations. EPA has also found that 

facilities that need to scrub screens do so during other routinely scheduled outages. For 

some compliance technologies such as relocating an intake, or expanding an existing 

intake to lower the intake velocity, several weeks of downtime are incurred, as these are 

more invasive tasks. 

 For facilities subject to entrainment mortality controls, EPA reviewed historical 

retrofit data and site visits conducted since 2004, and has largely retained its assumptions 

for downtime from the Phase II and Phase III rules. On average, EPA assumes the net 

construction downtime for a cooling tower retrofit for non-nuclear electric generators is 4 

weeks. This total downtime allows for the tie-in of the cooling tower to the existing 

cooling water system. The refueling outage downtime, the safety-sensitive nature of 

nuclear facility retrofits, and other data in EPA’s record supports 28 weeks as the net 

construction downtime for nuclear facilities. Downtime for manufacturing facilities that 

use cooling water for power and steam generation was converted into the incremental 

cost for purchase of those utilities during the outage. For individual process units other 

than power or steam generation units at a manufacturing facility (i.e. cooling water use 

for purposes other than power production), on average the downtime was assumed to be 

zero. In EPA’s extensive experience with manufacturers while developing effluent 

guidelines, EPA found manufacturers are generally able to shut down individual intakes 
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for specific process lines, use inventory approaches such as temporary increases of 

intermediate products, and develop other workarounds without interrupting the 

production of the entire facility. EPA requests comment from those manufacturing 

facilities that have made modifications to their cooling water systems on their 

experiences with facility downtime. See below for further discussion of how installation 

downtime in weeks is included in the estimated national costs. 

6. How is the Energy Penalty Assessed? 

 The term “energy penalty” in relation to a conversion to closed-cycle cooling has 

two components: one is the extra power required to operate fans at a mechanical draft 

cooling tower, as well as additional pumping requirements (often referred to as the 

parasitic energy penalty), and the other is the lost power output due to the reduction in 

steam turbine efficiency because of an increase in cooling water temperature (often 

referred to as the turbine efficiency penalty or turbine backpressure penalty). Energy 

penalty costs only apply to facilities retrofitting a cooling tower; facilities installing a 

new impingement mortality technology will generally see little or no measureable change 

in energy usage. EPA’s national level costs include the costs for both components. The 

parasitic energy penalty was included as a separate component in the O&M costs and was 

assessed for all facilities. The turbine efficiency penalty was typically expressed as a 

percentage of power output; EPA estimates the turbine efficiency energy penalty for 

nuclear and non-nuclear power generation would be 2.5% and 1.5%, respectively. 

[DCN10-xxxx] (see the TDD). For most manufacturers, the energy penalty for turbine 

efficiency loss for non-nuclear power plants (i.e., 1.5%) was assumed. This may overstate 
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costs where cooling water is used by a manufacturing facility for purposes other than 

power production. 

7. How Did EPA Assess Facility-Level Costs for the National Economic Impacts 

and Energy Reliability Analyses? 

 To assess the national economic impacts, EPA conducted a modeling analysis 

using IPM (Integrated Planning Model). This model is widely used by EPA for analysis 

of rules and policies affecting electric generating facilities. This analysis is used to assess 

economic impacts, increases in household electricity bills, and changes in electricity 

reliability. In contrast to the model facility costing approach, the IPM model requires a 

facility-level cost for each facility. Model facility costs were converted to a per MGD 

DIF basis, and then averaged to derive cost equations using DIF as the independent 

variable. This cost equation thus provides average costs that can be applied to any 

facility by simply scaling to that facility’s DIF. EPA also used a conservative 

compliance scenario in order to develop a bounding “worst case” impact analysis by 

assuming all facilities would be subject to Entrainment Mortality reductions based on 

closed-cycle cooling towers. In the worst case scenario EPA conducted the IPM analysis 

using the Difficult level cost for all facilities, thereby generating an upper bound of total 

costs and conservative predictions of the economic impacts. See the EBA for more 

information. In conducting its analysis, EPA found the equations used to derive the cost 

module estimates produced substantially higher costs per MGD rates at lower flow levels. 

To reflect the higher per unit costs of retrofits at lower DIF (i.e. smaller) facilities, , EPA 

derived separate model facility cost equations for facilities with DIF <10 MGD and those 

with DIF ≥ 10 MGD. [ (See the TDD].). 
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8. How Did EPA Assess Costs for New Units? 

This section describes the data and methods used to estimate compliance costs for 

new units at existing electric generators and manufacturers. Compliance costs for new 

units at existing electric generators usesare calculated using a similar methodology to the 

compliance cost estimates for existing facilities. EPA is not able to predict which 

facilities will construct new units. However, EPA could convert, however the national 

projections of increased capacity (i.e. additional megawatts capacity to be constructed 

each year) can be converted to a number of new units of a specified size.; EPA then 

applied the cost equations to these projected new units. For new units at existing 

manufacturers Based on site visits, EPA has determinedfound that no additional 

compliance costs will be incurred, given the industry trends towards water 

useconservation and reuse in addition to the operational flexibility described aboveat 

existing manufacturers would result in no additional compliance costs for achieving flow 

commensurate with closed-cycle cooling at new units. EPA solicits comment on this 

assumption. 

a. New Units at Existing Electric Generators 

Power generation units that meet the definition of a “new unit” will be required to 

meet entrainment reduction requirements. These requirements will requirebased on

closed-cycle cooling or an equivalent reduction in entrainment mortality for the cooling 

water component of the intake flow based on the average intake flow (AIF). Estimates 

for compliance costs for new units are based on the net difference in costs between what 

cooling system technologies would have been built under the current regulatory structure 
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and what will be built given the change in requirements imposed by the proposed 

regulation. Compliance costs are derived using estimates of the new generating capacity 

that will be subject to these requirements. 

Generally speaking, EPA has identified a number of differences in costs between 

a closed-cycle cooling retrofit at an existing facility compared to installing closed-cycle 

cooling at a new unit: 

• New units can incorporate closed-cycle cooling in a more cost effective 

manner. 

• The duration of new unit construction is sufficiently long enough that there 

would be, in nearly all circumstances, no net increase in “construction 

downtime.” 

• For power generation systems, the replacement or upgradedesign of boilers, 

steam turbines and condensers “from scratch” allows for the re-optimization 

of the system design and cooling water flow volume to minimize the heat rate 

penalty. Flow is often reduced over a comparable once through cooling 

system, which reduces closed-cycle cooling system costs. 

• WhereBecause major components of the once-through intake and cooling 

system must be constructed or upgradedfrom scratch, the capital costs of 

closed-cycle cooling for new units are comparable tolower than the capital 

costs of once through cooling. 67.

• There will be an increase in the parasitic energy requirements associated with 

fan operation in the closed-cycle cooling towers. 

 

67 See DCN 10-6650 and DCN 10-6651.
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• While parasitic energy requirements for pumping head will increase as well, it 

may be offset, at least in part, by reductions in pumping flow associated with 

re-optimization. Any capacity losses due to parasitic energy penalty can be 

accounted for in the new unit design. 

• ReconstructionNew construction allows the use of an optimized cooling 

system design that can minimize any system efficiency losses associated with 

conversion to closed-cycle. 

Estimation of New Capacity Subject to the Rule

New generating units will be constructed at either “greenfield” facilities subject to 

the Phase I regulation or at existing facilities where they may be subject to the new unit 

requirements for entrainment reduction.68 New generating capacity at existing facilities 

can occur in three ways: 1) from new units added to an existing facility; 2) repowering, 

replacement and major upgrades of existing units; and 3) minor increases in system 

efficiency and output. Repowered, replaced, and upgraded units are not considered new 

units under today’s proposed rule and would not be subject to requirements for 

entrainment reduction. While a small portion of this new capacity may result from minor 

increases in plant efficiency and output, this analysis assumes all new capacity will occur 

be associated with new units, repowered units and major upgrades. .

New power generation capacity estimates by fuel/plant type were derived from 

IPM modeling. For the new unit costs analysis EPA focused on coal, and combined 

cycle, and nuclear extended uprates since these comprised the majority of increased 

capacity that utilize a steam cycle and are most likely to be constructed at existing 

 

68 This discussion will focus only on new units at existing facilities; for a discussion of the Phase I rule, see 

66 FR 65256. 
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generation facilities. In the Phase I rule analysis, EPA determined that 76% of new coal 

and 88% of new combined cycle capacity would be constructed at new “greenfield” 

facilities and would be subject to Phase I requirements while the remainder (24% of coal 

and 12% of combined cycle) would occur at existing facilities and be subject to existing 

facility regulations. EPA has selected a conservative value of 30% reflecting both coal 

and combined cycle to serve as an estimate for the portion of new capacity that would be 

constructed at existing facilities. 

At existing nuclear facilities, only new capacity associated with performing 

extended uprates andthe construction of new generating units would be subject to the new 

unit requirements.69 Considering their size and heat discharge as well as recent trends in 

industry, it is assumed that any new nuclear units will utilize closed-cycle cooling and so 

the capacity for this category of new nuclear capacity has not been estimated. EPA 

reviewed historical and future projection data for the frequency of occurrence for 

extended uprates at nuclear facilities from DOE EIA documents and determined that 

roughly 2-3 extended uprates are performed per year. Recognizing that the new unit 

entrainment reduction requirements may influence business decisions to conduct 

extended uprates, EPA assumes no more than 2 new nuclear generating units would be 

constructed annually over the period of analysis. Each unit is assumed to be 969 MW, 

the average unit size for current nuclear units in the US.70 and so the capacity for these 

 

69 Uprates consist of three types, in ascending order of complexity and amount of capacity added: 

measurement uncertainty, stretch, and extended. The first two types of uprate are not subject to any 

requirements under the proposed rule. Facilities implementing an extended uprate are subject to new unit 

requirements, given that the enhancements are extensive and offer an opportunity for flow reduction not 

unlike the opportunity provided during the repowering of a fossil-fueled facility. 70 Less than half of the current U.S. nuclear plants still use once through cooling.
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nuclear facilities is not included in the costs of requirements for new units. Exhibit VII-1 

presents a summary of new capacity estimates for all fuel types. 

Exhibit VII-1 – Estimated New Capacity 

Fuel Type New Capacity (MW)a

New Capacity Subject to New 

Unit RequirementsIncurring 

Costs Under This Rule

Annual 

Average 24 Year Total 

Annual 

Average 24 Year Total 

Coal 3,573 85,744 1,072 25,723

Combined Cycle 1,491 35,795 447 10,739

Nuclear Extended 

Upratesb 1,938 46,512 1,938 46,512

a. Includes capacity subject to both Phase I and existing facility requirements

b. Includes capacity of the entire unit being uprated. 

Baseline Compliance

Baseline compliance reflects the scenario whereby new units will use oncethrough cooling or closed-cycle cooling. About 32% of existing facility steam generating 

capacity already employs closed-cycle and another 11% employ combination cooling 

systems. EPA assumes that at existing plants where closed-cycle cooling is already 

employed for at least part of the generating capacity that closed-cycle would be used for 

any new or repowered capacity., regardless of the requirements of today’s proposed rule. 

Therefore at least 43% of new capacity is projected to be compliant in the baseline (i.e., 

they will already meet the entrainment mortality requirements of the proposed rule for 

new units). AFor example, a number of regulatory authorities have adopted or pursued

closed-cycle cooling requirements for some or all existing facilities (e.g., New York, 

California, Delaware). EPA expects this to be particularly true where the new unit would 

result in a substantial increase in the volume of once-through cooling water withdrawn 

above what is currently permitted. Thus, approximately 50% of new fossil units at 

Formatted Table
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existing facilities in the baseline scenario would already be compliant with the proposed 

rule. EPA requests comment on this assumption.

For nuclear uprates, baseline compliance is projected based on what is currently 

in-place. Approximately 52% of nuclear generating capacity is currently served by oncethrough cooling systems. The result is that one nuclear generating unit of the two new 

units constructed per year would incur incremental costs for the installation of closedcycle cooling to meet the proposed new unit requirements. 

Repowering Versus New Units

The increased capacity at existing fossil fuel facilities is divided into two types of 

projects. The first is new unit(s) added adjacent to the existing generating units which 

would require a new intake or the existing intake to be substantially modified in order to 

supply the needed additional volume of cooling water. The second is a repowered unit 

which replaces an existing generating unit(s) and is assumed to be sized such that the 

existing once-through cooling water intake volume will provide sufficient flow to meet 

heat discharge requirements. Based on 2007 IPM projections (since more recent 

projections do not include this distinction) approximately 85% of projected total new 

combined cycle capacity was estimated to be repowered oil and gas units. The estimate 

for repowered coal capacity was very small (less than 1%). However, since there are 

significant economic advantages to repowering, EPA believes this to be an underestimate 

and selected a more conservative value of 10%. Figures 1 and 2 present the distribution 

of the estimated new capacity estimates across each cost category for coal and combined 

cycle, respectively. Exhibit VII-2 presents the capacity values assumed to be compliant 
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in the baseline or that require costs associated with closed-cycle cooling for new added 

units versus repowering. 

Exhibit VII-2 –New Capacity Subject to New Unit Requirement by Cost Category 

Fuel Type 

Capacity Subject to New Unit Compliance 

Costs (MW) 

Annual Average 24 Year Total 

Coal 

Baseline is Compliant 536 12,862 

New Added Unit 482 11,575

Repowered 54 1286

Combined Cycle 

Baseline is Compliant 224 5,369 

New Added Unit 34 805 

Repowered 190 4,564

Nuclear Extended 

Uprates

Baseline is Compliant 969 23,256

New Added Unit NA NA

Repowered 969 23,256

Compliance Cost Estimation

Compliance costs reflect compliance with the proposed requirements for closedcycle for the new unit; these costs do not represent costs to retrofit the entire facility to 

closed-cycle. Compliance costs for new units are based onderived from EPA’s estimates 

for retrofitting a closed-cycle cooling system at existing facilities where the costs are 

expressed on a per MGD basis. For new units, the cost equations are converted to a cost 

per MW capacity . EPA assumes that the typical existing plant design includes a oncethrough cooling system with a condenser temperature rise of 15 o

F and that the closedcycle cooling system that replaces a once-though system will be optimized using a 

temperature rise of 20 oF.. The cooling water flow estimates are based on a plant fuel

efficiency values of 42% for coal (the average of values for super-critical and ultracritical steam), 57% for combined cycle, and 33.5% for nuclear. [DCN xx-xxxx10-2827]. 

Cost components were broken out as follows. 

Capital Costs

Formatted: Font: 10 pt
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EPA has found that for new units, the total estimated capital costs for a closedcycle cooling system is slightly less than the capital costs of a once-through cooling 

system (when including costs for a new intake) is comparable to the capital costs of a 

closed-cycle cooling system. structure). Therefore, a conservative estimate of the 

incremental compliance capital costs are assumed to be $0 for new units. For repowered 

units, the existing once-through intake and pump system can be utilized, causing capital 

costs to closely resemble that of existing facility retrofit costs. However, since the 

repowering construction activities are often quite extensive, the full costs for an existing 

facility retrofit are not assessed because they include working around existing equipment 

and structures (which may be removed during the repowering). In addition, much of the 

higher costs associated with the “average and “difficult” retrofit scenarios will be 

avoided. Thus, a cost value midway between an “easy” difficulty retrofit and the cost of 

a cooling tower alone was assumed. The capital costs include plume abatement for 25% 

of facilities.

O&M Costs 

The same O&M costs are used for both new units and repowered units. Fixed and 

variable O&M costs are adjusted by deducting the O&M costs estimated for the traveling 

screens that would have been used assumed in the baseline once-through system. Energy 

costs are also adjusted downward to account for the reduced pumping volume associated 

with changing the approach cooling water temperature but do passing through the intake 

structure and adjusted up to account for the an increase of 25 ftin pumping head for 

closed-cycle versus once-through operationthe cooling tower. 

Downtime 
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Each of the new units (whether newly constructed or repowered) will involve 

extensive construction activities that would result in a prolonged construction downtime 

regardless of the cooling system requirements. Thus, no downtime costs are assessed for 

new unit compliance. 

Energy Penalty 

The energy penalty consists of parasitic load and heat rate penalties. Both types of 

installation – new and retrofit – face parasitic load associated with fans and pumps, but 

only retrofits would face a heat rate penalty, which is the largest portion of a retrofit 

energy penalty. Energy penalty costs associated with net changes in parasitic energy 

requirements between once-through and closed-cycle cooling are included in the O&M 

cost estimates. For the heat rate penalty, it is assumed that repowering will involve the 

replacement of the steam turbines, condensers, and other equipment such that installed 

cooling towers would use an optimized design. As such, the system design can be tuned 

such that heat rate penalty that would otherwise be associated with replacing the oncethrough system with a closed-cycle cooling system at an existing facility is assumed to be 

minimal, and no incremental costs are assessed for the heat rate penalty. 

b. New Units at Existing Manufacturers 

Similar to new units at existing electric generators, manufacturing “units” that are 

modified such that they meet the definition of a “new unit” will be required to meet 

entrainment reduction requirements. These requirements will require closed-cycle 

cooling or an equivalent reduction in entrainment for the cooling water component of the 

intake flow based on the average intake flow (AIF). Estimates for compliance costs for 

new units are based on the net difference in costs between what would have been built 
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under the current regulatory structure (baseline) and what will be built given the change 

in requirements imposed by the proposed regulation. Thus, the compliance cost for new 

units use a different baseline than for existing units since the baseline costs will be what 

would have been constructed if no new 316(b) regulation had been enacted. Thus, 

baseline manufacturing unit process design and cooling water technology would be based 

on the response to the permitting authorities application of existing requirements 

including 316(b), applicable industrial water use and discharge standards (e.g., 

categorical standards), and BPJ. 

AlsoAs discussed in section IV of the preamble, it has become standard practice 

for industries to adopt water use reduction and reuse practices wherever practical. A 

major rebuild or replacementnew unit provides a perfectthe opportunity to employ such 

measures to the fullfullest extent. In many cases, it is likely that the existing regulatory 

requirements and practices would have resulted in a further reduction in the cooling flow 

than currently in-place in the existing manufacturing units. Thus, the baseline cooling 

AIF for “new units” at manufacturers should, in most cases, be much smaller than the 

AIF for a comparable existing unit. This is especially true for replacementnew units that 

perform a similar function or produce a similar product to existing units since economic 

factors such as the need to increase process efficiencies are often driving factors in the 

decision to replace an existing unit. construct a new unit. EPA recognizes that while this 

appears to be a general trend, it may not always be true on a site-specific basis. 

For manufacturing process units that are newly constructed, replaced or rebuilt, 

many of the same cost-related factors listed above for power generators apply but 

additional factors may include: 
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• A much greater proportion of intake flow is used for process water and other 

non-cooling purposes which greatly increases the opportunity to design and 

incorporate cooling water reuse strategies within the unit. 

• Where the new unit comprises only a portion of the plant, cooling water 

reduction may be accomplished through reuse elsewhere within the plant. The 

proposed rule provides credit for such flow reductions. 

• The modular nature of closed-cycle cooling allows for the limited application 

of closed-cycle cooling only to the portion of cooling flow necessary to meet 

any additional reductions not accounted for by any other reuse or reduction 

strategies employed. Additionally, new units can utilize cooling system 

designs specifically tailored to process requirements. The modular nature of 

closed-cycle cooling and the flexibility inherent in the process system allows 

for more optimal placement of cooling tower units, thus minimizing piping 

costs.

• The modular nature of closed-cycle cooling allows for the use of cooling 

system designs specifically tailored to process requirements and vice versa.

The modular nature of closed-cycle cooling and the flexibility inherent in the 

process system rebuild allows for more optimal placement of cooling tower 

units, thus minimizing piping costs.

• New unit construction provides a lower cost opportunity to install variable 

speed pumps in cooling system applications that previously used fixed speed 

pumps. Flow reductions associated with the use of variable speed pumps can 
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result in benefits associated with both reduced flow and pumping energy 

costs. 

For power generation facilities and generating units that use once-through 

cooling, the majority of the intake flow is used for non-contact cooling purposes. Process 

water typically constitutes a few percent or less of the total. A review of the responses to 

the detailed technical survey showed that the median and average values for the percent 

of design intake flow used for cooling purposes reported for each separate cooling water 

intake at power generation facilities were 100% and 85% respectively. In contrast, most 

industrial manufacturing operations utilize a substantial portion of intake water for noncooling purpose and the same median and average values for manufacturing facilities 

were 50% and 52%, respectively. In addition, this cooling flow component data includes 

contact cooling water, which would not be subject to the “new unit” requirementsas 

discussed in section IV.A (i.e., flow reduction is only required for non-contact cooling 

water flows), thus decreasing the proportion. Therefore, a “typical” manufacturing unit 

may use less than 50% of AIF for cooling purposes of the type that may be subject to the 

“new unit” requirements. TheoreticallyIn many cases, this “typical” facility shouldmay

be able to reuse 100% of the cooling water in place of the process component. Thus, the 

“typical” manufacturing facility shouldmay be capable of designing a “new” process that 

could meet the “new unit” requirements through water reuse alone. EPA has observed 

significant innovation and water reuse during site visits to manufacturing facilities, and 

notes extensive industry trends towards internal water and energy audits. 

Since this 50% value is the median of all reported manufacturing cooling water 

intake systems, at least half of manufacturing cooling water systems may have the 
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potential to meet the “new unit” requirements simply by reusing non-contact water as 

process water. For the remainder, modifications to the process that reduce cooling water 

use such as use of variable speed pumps may provide additional reduction. For some, 

there may be a need to install cooling towers for the cooling flow component that cannot 

be reused. ThisEPA assumes, however, that this, however, will in most instances be a 

small portion of the total intake flow. Also, if the “new unit” comprises only a portion of 

the entire manufacturing facility, there may be other process units and plant operations 

nearby that could reuse the cooling water (or supply reusable water) in order to meet the 

flow reduction requirements. The proposed rule encourages facilities to incorporate 

flexible water use arrangements, including a provision where cooling water that is reused 

elsewhere in the facility is not considered cooling water; as a result, facilities will have an 

incentive to reuse water and avoid being subject to 316(b) requirements. 

For new units that would require an increase in intake flow, EPA has found that 

the capital costs of the new intake and screen technology which requires deeper pump 

and intake wells to accommodate source water depth variations will be comparable to the 

capital costs for closed-cycle technology. In these cases, closed-cycle may have slightly 

higher O&M costs for pump and fan energy but these costs may be offset by other cost 

savings such as reductions in water treatment costs. 

The definition of new manufacturing units limits the applicability of closed-cycle 

requirements to new units that involve major modification/reconstruction activities that 

would involve construction of substantial portions of the process and ancillary 

equipment.. As such, it is assumed that the reconstructionconstruction activities would 

involve substantial downtime periods that would be of similar or more likely greater 
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duration than required for construction and tie-in activities associated with the closedcycle cooling technology. EPA concludes that only small portion of new units will need 

to meet new unit flow reduction requirements through the use of closed-cycle cooling and 

the associated net costs will be minimal. EPA requests comment on these costing 

assumptions.

C. Social Cost of the Regulatory Options

 EPA calculated the social cost of the threefour regulatory options for 

existing Manufacturers and Electric Generators using two social discount rate values: 3 

percent and 7 percent. For the analysis of social costs, EPA discounted all costs to the 

beginning of 2012, the date at which this proposal is assumed towould become effective 

under the current regulation development schedule. EPA assumed that all facilities 

subject to the regulation would achieve compliance between 2013 and 2027, inclusive, 

depending on the compliance schedules associated with the threefour regulatory options 

considered in the proposed rule for specific categories of facilities. EPA performed the 

social cost analysis over a 50-year analysis period, which reflects to reflect: the last year 

in which individual facilities are expected to achieve compliance (2027),) under any of 

the regulatory options considered for this analysis, the technology life of the longest-lived 

compliance technology installed at any facility (30 years), and a period of 5 additional

years after the last year of compliance technology operation, during which benefits 

continue but decline to zeroaccrue. Under this framework, the last year for which costs 

were tallied in the analysis is 2056, with benefits continuing on a diminishing basis 

through 2061. Because the analysis period extends beyond the useful life of compliance 

Formatted: Indent: First line: 0.5"
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equipment assumed to be installed at facilities that achieve compliance before 2017, the 

social cost analysis accounts for re-installation of IM compliance technologies after the 

end of their initial useful life periods; however, EPA does not expect in-scope facilities to 

re-install cooling towers.completely re-build cooling towers (components such as piping 

and the concrete basin can be reused) and EPA expects other technology replacement 

costs (such as pumps and fill material) are accounted for as part of the ongoing O&M 

expenses for cooling towers. Costs incurred by governments for administering the 

regulation were analyzed over the same time frame. This analysis accounts for 

technology costs associated with repowering and new units starting in the first year after 

promulgation, i.e., 2013 (for more information on repowering and new units see Chapter 

3: Development of Costs for Regulatory Options of the EBA report). 

At a 3 percent discount rate, EPA estimated totalestimates annualized 

social costs of $481.8compliance of $384 million forunder Option 1, $4,600.8463 million 

forunder Option 2, and $4,782.4631 million forunder Option 3. , and $327 million under 

Option 4. At a 7 percent discount rate, these valuescosts are $529.5 million for the Option 

1, $4,884.4459 million for the Option 2, and $5,064.5, $4,699 million for Option 3, 

$4,862 million, and $383 million, respectively. The largest component of social cost is 

the pre-tax cost of regulatory compliance incurred by complying facilities. These costs 

include one-time technology costs of complying with the rule, one-time costs of 

installation downtime, annual fixed and variable operating and maintenance (O&M) 

costs, the value of electricity requirements for operating compliance technology, and 

permitting costs (initial permit costs, annual monitoring costs, and permit reissuance 

costs). In addition, all Electric Generators are expected to become subject to I&E 
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mortality requirements at the 125 MGD threshold under Option 2. However, as they 

repower, they are expected to incur a lower energy penalty than those incurred by other 

in-scope Electric Generators (see Technical Development Document). Social cost also 

includes implementation costs incurred by federal and State governments. EPA’s social 

cost estimates exclude the cost to facilities estimated to be baseline closures. As further 

described in the EBA document, in the case of Electric Generators, the baseline closure 

generating units were identified in Energy Information Administration reports or in the 

baseline IPM analyses, as having closed or projected to close independent of the 

requirements of the existing facilities rule. For Manufacturers, EPA’s analyses indicated 

that these facilities are in sufficiently weak financial condition before outlays for this 

regulation, that the facilities are likely to close, again, independent of the requirements of 

the existing facilities rule. Because these facilities are not expected to comply with the 

existing facilities rule, EPA did not include the costs that would otherwise be assigned to 

these facilities in the analysis of social cost. Consistent with this treatment of costs, EPA 

also did not include benefits from these facilities in the tally of benefits to society for the 

analysis of social costs and benefits of the existing facilities rule. 

Exhibit VII-3 presents the social cost of the proposed options, by type of cost, 

using 3 percent and 7 percent discount rates. 
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Exhibit VII-3 – Annualized Social Cost (in millions, 2009 $)a

Option 1 Option 2 Option 3 Option 4

3% Discount Rate 

Direct Compliance Cost: 

Manufacturers $61.31 $141.69 $172.92 $33.99

Electric GeneratorsaGenerators

$417.10318.77

$4,457.503

19.59

$4,608.554

57.79 $289.77

Total Direct Compliance Cost $478.41380.08 $4,599.194

61.28

$4,781.476

30.71

$323.77

State and Federal Administrative Cost $3.4271 $1.62 $0.92 $2.79

Total Social Cost $481.83383.80 $4,600.814

62.90

$4,782.396

31.62

$326.55

7% Discount Rate 

Direct Compliance Cost: 

Manufacturers $68.90 $133.60 $157.49 $39.04

Electric GeneratorsbGenerators

$456.85385.68

$4,749564.

02 

$4,906.077

03.65 $340.80

Total Direct Compliance Cost $425.75454.58 $4,882697.

62 

$5,063.564

,861.14

$379.84

State and Federal Administrative Cost $3.764.23 $1.72 $0.91 $3.26

Total Social Cost $529.51458.81 $4,884699.

35 

$5,064.474

,862.05

$383.10

a. Option 1 cost estimate includes $122.05 and Option 2 cost estimate includes $1.67 million in repowering 

costs.

b. Option 1 cost estimate includes $110.76 and Option 2 cost estimate includes $1.55 million in repowering costs.a These 

social cost estimates do not include costs associated with installation of cooling tower technology at new generating units 

subject to today’s rule. They also do not include costs associated with complying with site-specific BTA determinations under 

Options 1, 2, and 4. Section VI.I discusses costs for complying with site-specific BTA determinations.

As shown in Exhibit VII-3, compliance cost in the Electric Generators 

segment accounts for the majority of total social cost and direct compliance cost under all 

threefour options. On a per regulated facility basis and at a 3 percent discount rate, 

annualized pre-tax costs in the Electric Generators segment amount to $0.7557 million 

under Option 1, $7.73 million under Option 2, $7.97 million under Option 23, and 

$8.240.52 million under Option 34.

71 For Manufacturers, the average cost per regulated 

facility at a 3 percent discount rate is $0.12 million under Option 1, $0.27 million under 

Option 2, and $0.33 million under Option 3, and $0.07 million under Option 4.

72 EPA’s 

analysis found a similar profile of per facility costs by industry segment for the 7 percent 

 

71 Calculated using the total of 559 in-scope Electric Generators based on technical facility weights. 72 Calculated using the total of 518 in-scope Manufacturers based on technical facility weights. 

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discount rate case (see EBA Chapter 11 for additional detail). While all threefour options 

require some form of control technology at all facilities with design intake flows of two 

MGD or greater, Option 2 and Option 3 require more costly cooling tower technologies, 

which raises the per-facility cost of compliance in these options. 

EPA’s estimate of federal and State government costs for administering 

this proposal is comparatively minor in relation to the estimated direct cost of regulatory 

compliance. EPA estimates government annual administrative costs under 3 and 7 

percent discount rates, respectively, of approximately $3.4271 million and $3.764.23

million (Option 1), $1.62 million and $1.72 million (Option 2), and $0.92 million and 

0.91 million (Option 3) under 3 and 7 percent discount rates, respectively.), and $2.79 

million and $3.26 million (Option 4).

EPA also estimated the costs for installation of closed cycle cooling 

system technology at New Generating Units, including both repowered units and newly 

constructed units at existing facilities, as required by today’s rule. These costs are based 

on the estimates of occurrence of unit repowerings and new unit construction that would 

be subject to the New Units requirement, and the incurrence of costs as described above 

in the section titled “How Did EPA Assess Costs for New Units?”.?” 

The social costs of adding closed cycle cooling system capability for repowering 

units are included in the total social cost tallies presented above. These repoweringrelated costs are applicable only to Option 1: IM Everywhere (the Proposed Option), and 

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD. Under Option 3: 

I&E Mortality Everywhere, all existing in-scope facilities are already required to install 
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closed cycle cooling system technology, so the new units requirement has no practical 

effect for unit repowerings under Option 3: I&E Mortality Everywhere. 

For Option 1: IM Everywhere and Option 2: IM Everywhere and EM for 

Facilities with DIF > 125 MGD, these repowering-related costs on an annualized cost 

basis, are as follows:

• Option 1: IM Everywhere: $122.1 million at a 3 percent discount rate, and 

$110.8 million at a 7 percent discount rate.

• Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD: 

$1.7 million at a 3 percent discount rate, and $1.6 million at a 7 percent 

discount rate.

The social costs of adding closed cycle cooling system capability at newly 

constructed units at existing facilities are not included in the total social cost tallies 

presented above. EPA did not include these costs in the tallies presented above because 

EPA was unable todid not estimate benefits from installation of closed cycle cooling 

systems at these units. (their location is unknown). As a result, comparisons of social 

cost, which would include these costs, with benefits, which would not include the I&E 

mortality reductions from installing those closed cycle cooling systems, would be 

inconsistent. The costs for adding closed cycle cooling system capability at newly 

constructed units are the same across all threefour of the regulatory options presented in 

today’s notice, because the technology performance requirements for existing units at 

existing facilities, which vary by regulatory option, do not apply to these newly 

constructed generating units. On an annualized cost base, these amount to $14.7 million 

at a 3 percent discount rate, and $10.9 million at a 7 percent discount rate. 

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D. Economic Impact

EPA assessed the economic impact of the regulatory options in different 

ways depending on the affected segment, Manufacturers or Electric Generators: 

For Manufacturers, EPA assessed the impact of compliance costs on business 

viability at the level of the affected facility (facility-level analysis), including 

assessment of the potential for facility closures and of the potential for affected 

facilities to incur financial stress short of closure. For manufacturers, EPA also 

assessed the impact of compliance requirements on the entities that own in-scope 

facilities (firm-level analysis), based on the level of compliance costs incurred by 

the total of in-scope facilities owned by a firm in relation to the revenue of the 

firm. 

For Electric Generators, EPA assessed economic impact in three ways: (1) an 

assessment of the impact of compliance costs on first, complying facilities and 

second, the entities that own those facilities, based on comparison of compliance 

costs to facility and firm revenue, (2) an assessment of potential electricity price 

effects on residential and other electricity consumers, and (3) an assessment of the 

impact of the proposed regulatory options within the context of the electricity 

markets in which affected facilities operate. 

These analyses are based on the facilities included in EPA’s previous 

316(b) surveys of electric generators and those manufacturing industries whose 

operations are most reliant on cooling water and that are expected to be most affected by 

this proposal. For each regulatory option, only those facilities that would be subject to 

national standards, based on their DIF, are included in the analyses. 

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The following sections summarize the methods and findings for 

manufacturers and electric power generators for these analyses. 

a. Manufacturers 

This section presents EPA’s estimated economic impacts on 

Manufacturers for the three regulatory options. The economic impact analyses for 

Manufacturers assess how facilities, and the firms that own them, are expected to be 

affected financially by the regulatory options. The facility impact analysis starts with 

compliance cost estimates from the EPA engineering analysis (see section VII.B) and 

then calculates how these compliance costs would affect the financial performance and 

condition of the sample facilities and owning firms. 

Measures of economic impact include facility closures and associated 

losses in revenue and employment, financial stress short of closure (“moderate impacts”), 

and firm-level impacts.73

In conducting the facility impact analysis, EPA first eliminated from the 

analysis those facilities that the Agency estimated to be at substantial risk of financial 

failure regardless of any additional financial burden that might result from the regulatory 

options under consideration (baseline closure facilities). Second, for the remaining 

facilities, EPA evaluated how compliance costs would likely affect facility financial 

performance and condition. EPA identified a facility as a regulatory closure if it would 

have operated under baseline conditions but would fall below an acceptable financial 

performance level under the new regulatory requirements. 

 

73 For the analysis of three regulatory options presented in this document, neither employment loss nor 

output loss were in fact relevant because none of these options resulted in regulatory closures. 

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EPA’s analysis of regulatory closures is based on the estimated change in 

facility After-Tax Cash Flow (cash flow) as a result of the regulation and specifically 

examines whether the change in cash flow would be sufficient to cause the facility’s 

going concern business value to become negative. EPA calculated business value using a 

discounted cash flow framework in which cash flow is discounted at an estimated cost of 

capital to calculate the going concern value of the facility. The specific definition of cash 

flow used in these analyses is after-tax free cash flow available to all capital – equity and 

debt. – including an allowance for ongoing capital expenditures required by the business. 

Correspondingly, the cost of capital reflects the combined cost, after-tax, of equity and 

debt capital. For its analysis of economic/financial impacts on the Manufacturers 

industry segment, EPA used 7 percent as a real, after-tax cost of capital. Use of the 7 

percent discount rate is consistent with guidance from the Office of Management and 

Budget on the opportunity cost of capital to society. 

In these analyses, EPA first calculated the baseline going concern value of 

the facility using its baseline cash flow – i.e., facility cash flow before compliance-related 

outlays – and used this value to determine whether a given facility is a baseline closure 

(for details see Chapter 4 of the EBA report). If EPA found the facility’s estimated going 

concern value to be negative, then the facility was judged a baseline closure – i.e., likely 

to fail financially, independent of incurrence of compliance costs – and removed the 

facility from further consideration in the impact and other economic analyses. 

As the second step in the facility impact analysis, EPA adjusted the 

baseline cash flow to reflect the expected financial effects of compliance technology 

installation and operation. Based on an assessment of cost pass-through potential in the 
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affected industries (see Chapter 5 and Appendix 4.A of the EBA), EPA assumed that 

none of the facility’s compliance costs could be passed on to its customers as price and 

revenue increases – i.e., all compliance costs must be absorbed within the facility’s cash 

flow. EPA then recalculated the facility’s business value using the adjusted postcompliance cash flow. If this analysis found that the facility’s business value would 

become negative as a result of meeting compliance requirements, then EPA judged the 

facility to be a regulatory closure. 

EPA also identified facilities that would likely incur moderate financial 

impacts, but that are not expected to close, as a result of the rule. EPA established 

thresholds for two measures of financial performance and condition – interest coverage 

ratio and pre-tax return on assets – and compared the facilities’ performance before and 

after compliance under each regulatory option with these thresholds. EPA attributed 

incremental moderate impacts to the rule if both financial ratios exceeded threshold 

values in the baseline (i.e., there were no moderate impacts in the baseline), but at least 

one financial ratio fell below the threshold value in the post-compliance case. 

i. Baseline Closure Analysis 

Exhibit VII-4 presents projected baseline closures for the estimated 

facilities in the Primary Manufacturing Industries and additional known facilities in Other 

Industries.74 From the analysis as outlined above, EPA determined that 73 facilities (or 

 

74 The estimated number of Manufacturers facilities considered in the impact analysis (579) differs from the 

number reported in the broader analyses (592). EPA determined that the survey responses of 14 sample 

facilities lacked certain financial data needed for the facility impact analysis while containing sufficient 

data to support estimates of facility counts and compliance costs. EPA therefore retained these sample 

facilities (37 sample weighted facilities) in the broader analyses but excluded them from the impact 

analysis. When these sample facilities were excluded from the impact analysis, the sample weights for the 

remaining facilities within the affected sample frames were adjusted upwards to account for their removal 

(the revised weights are referred to as the economic analysis weights). The difference in the reported 

facility totals in the impact and social cost analyses reflects the removal of these 14 facilities and the use of 

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13 percent) of the estimated 569 regulated facilities in the six Primary Manufacturing 

Industries are baseline closures. The highest percentages of baseline closures occur in the 

Steel industry sector (32 percent). An additional three facilities (or 30 percent) of the 10 

known facilities in Other Industries are projected to be baseline closures. These facilities 

were excluded from the post-compliance analysis of regulatory impacts, leaving 504 

facilities to be considered furtherfor the assessment of compliance impacts. 

Exhibit VII-4 – Summary of Baseline Closures for Manufacturers 

Sector 

Total Number of 

Facilitiesa 

Number of 

Baseline 

Closures 

Percentage of 

Baseline 

Closures 

Operating in 

Baseline 

Paper 230 32 14% 198 

Chemicals 171 4 3% 167 

Petroleum 36 5 15% 30 

Steel 68 22 32% 46 

Aluminum 27 3 12% 24 

Food and Kindred 

Products 37 6 17% 31 

Total Facilities in Primary 

Manufacturing Industries 569 73 13% 497 

Additional known 

facilities in Other 

Industries 10 3 30% 7 

Total Manufacturers 

Facilities 579 76 13% 504 

a. Economic Analysis Weights were used to determine facility counts. See preceding footnote.

ii. Number of Facilities Subject to National Standards 

EPA estimates that all of these 504 Manufacturers facilities – 497 facilities 

in the Primary Manufacturing Industries and 7 facilities in the Other manufacturing 

industriesIndustries – are subject to the requirements under the threefour regulatory 

options, although the technology response anticipated at individual facilities differs under 

each option. Under Option 1, all 504 facilities passing the baseline closure test would be 

 adjusted sample weights, which due to rounding error results in a difference of 13 between the facilities in 

the impact analysis and those in the other analyses.

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required to meet IM standards and EPA estimates that 370 will need to install new 

technology in order to do so. Under Option 2, 57 facilities with DIF exceeding 125 MGD 

would be required to meet I&E mortality standards, and EPA estimates that all of these 

facilities would need to retrofit a closed-cycle cooling. The remaining 448 facilities 

would be subject only to IM standards, and EPA estimates that 366 would need to install 

new technology to meet these requirements. Under Option 3, all 504 facilities would be 

required to meet I&E mortality standards, and in this case EPA estimates that 426 

facilities would need to install a cooling tower to meet these requirements. In addition, 

EPA estimates that 181 facilities would need to install additional IM technology to meet 

Option 3’s regulatory requirements. Under Option 4, 156 facilities would be required to 

meet IM standards; in this case, EPA estimates that 139 facilities would need to install 

new technology to meet this requirement.

iii. Post-Compliance Facility Impact Analysis; Summary of Impacts 

Of the 504 Manufacturers facilities potentially subject to regulation after 

excluding baseline closures, EPA estimated that no facilities would close or incur 

employment losses as a result of the Options. EPA also found that no facilities would 

incur moderate impacts under Options 1, 2, and 24, but 17 facilities would incur 

moderate impacts under Option 3. 

Exhibit VII-5 summarizes the estimated impacts of the proposed rule on 

Manufacturers by option, including facility impacts and total annualized compliance 

costs on an after-tax basis. The reported costs exclude compliance costs for baseline 

closures. The total annualized, after-tax compliance cost reported in Exhibit VII-5 

represents the cost actually incurred by complying firms, taking into account the 

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reductions in tax liability resulting from compliance outlays and assuming no recovery of 

costs from customers through increased prices. The after-tax analysis uses a combined 

federal/State tax rate, and accounts for facilities’ baseline tax circumstances. 

Specifically, tax offsets to compliance costs are limited not to exceed facility-level tax 

payments as reported in facility questionnaire responses. The total annualized, after-tax 

compliance cost reported here is the sum of annualized, after-tax costs by facility at the 

year of compliance, using a 7 percent after-tax cost of capital. This cost calculation 

differs from the calculation of compliance costs as included in the calculation of the total 

social costs of the regulation (see Section VII.C) where costs are accounted for on a pretax basis. 

Exhibit VII-5 – Facility Impacts and Compliance Costs for Manufacturers 

Option 1 Option 2 Option 3 Option 4

Primary Manufacturing Industries 

Number of Facilities Operating in Baseline 497 497 497 497

Number of Closures (Severe Impacts) 0 0 0 0

Percentage of Facilities Closing 0% 0% 0% 0%

Number of Facilities with Moderate Impacts 0 0 17 0

Percentage of Facilities with Moderate 

Impacts 0% 0% 3.440% 0.00%

Annualized Compliance Costs (after tax, 

million 2009 $) $40.78 $108.71 $147.87 $23.38 

Additional Known Facilities in Other Industries 

Number of Facilities Operating in Baseline 7 7 7 7

Number of Closures (Severe Impacts) 0 0 0 0

Percentage of Facilities Closing 0% 0% 0% 0%

Number of Facilities with Moderate Impacts 0 0 0 0

Percentage of Facilities with Moderate 

Impacts 0% 0% 0% 0%

Annualized Compliance Costs (after tax, 

million 2009 $) $1.13 $1.52 $1.99 $0.60 

iv. Firm-Level Impact 

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In addition to analyzing the impact of the regulation at the facility level, 

EPA also examined the impact of the proposed rule on firms that own manufacturing 

facilities with cooling water intake structures. A firm that owns multiple facilities could 

be adversely affected due to the cumulative burden of regulatory requirements over these 

facilities. For the assessment of firm-level effects, EPA calculated annualized after-tax 

compliance costs as a percentage of firm revenue and reports here the estimated number 

and percentage of affected firms incurring compliance costs in three cost-to-revenue 

ranges: less than 1 percent; at least 1 percent but less than 3 percent; and 3 percent or 

higher. 

EPA’s sample-based analysis of facilities in the Primary Manufacturing 

Industries supports specific estimates of the number of facilities expected to be affected 

by the regulation and the total compliance costs expected to be incurred in these facilities. 

However, the sample-based analysis does not support specific estimates of the number of 

firms that own facilities in the Primary Manufacturing Industries. In addition, and as a 

corollary, the sample-based analysis does not support specific estimates of the number of 

regulated facilities that may be owned by a single firm, or of the total of compliance costs 

across regulated facilities that may be owned by a single firm. For the firm-level 

analysis, EPA therefore considered two approximate bounding cases based on the sample 

weights developed from the facility survey. These cases provide a range of estimates for 

the number of firms incurring compliance costs and the costs incurred by any firm 

owning a regulated facility. The cases are as follows: 

1. Lower bound estimate of number of firms owning facilities that face requirements 

under the regulation; upper bound estimate of total compliance costs that a firm 

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may incur. For this case, EPA assumed that any firm owning a regulated sample 

facility(ies), owns the known sample facility(ies) and all of the sample weights 

associated with the sample facility(ies). This case yields an approximate lower 

bound estimate of the count of affected firms, and an approximate upper bound 

estimate of the potential cost burden to any single firm (see EBA Chapter 4 for 

information on the analysis of firm-level impacts). 

2. Upper bound estimate of number of firms owning facilities that face requirements 

under the regulation; lower bound estimate of total compliance costs that a firm 

may incur. For this case, EPA inverted the prior assumption and assumed (1) that 

a firm owns only the regulated sample facility(ies) that it is known to own from 

the sample analysis and (2) that this pattern of ownership, observed for sampled 

facilities and their owning firms, extends over the facility population represented 

by the sample facilities. This case minimizes the possibility of multi-facility 

ownership by a single firm and thus maximizes the count of affected firms, but 

also minimizes the potential cost burden to any single firm. 

 Exhibit VII-6 summarizes the results of the firm-level analysis for these two 

analytic cases. 
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Exhibit VII-6: Firm-Level After-Tax Annual Compliance Costs as a Percentage of 

Revenue 

Number of Firms 

in the Analysis 

Pot. 

Reg. 

No CostsNot

Analyzed Due to 

Lack of Revenue 

Informationb

Number and Percentage with After Tax Annual Compliance 

Costs/Annual Revenue of: 

Less than 1% 1-3% At Least 3% 

Number % Number % Number % Number % 

Primary Manufacturing Industries 

Case 1: Lower bound estimate of number of firms owning facilities that face requirements under the regulation; upper 

bound estimate of total compliance costs that a firm may incura

Option 1 114117 3 3% 109113 96% 0 0% 21 21% 

Option 2 114117 3 3% 109113 96% 0 0% 21 21% 

Option 3 114117 3 3% 110113 96% 0 0% 1 1% 

Option 4 117 0 0% 117 100% 0 0% 0 0%

Case 2: Upper bound estimate of number of firms owning facilities that face requirements under the regulation; lower 

bound estimate of total compliance costs that a firm may incur

Option 1 346359 9 3% 334349 97% 0 0% 41 10% 

Option 2 346359 9 3% 334349 97% 0 0% 41 10% 

Option 3 346359 9 3% 337349 97% 30 10% 1 0%

Option 4 359 0 0% 359 100% 0 0% 0 0%

Other Industries 

Option 1 9 0 0% 89

89100

% 0 0% 10 110% 

Option 2 9 0 0% 89

89100

% 0 0% 10 110% 

Option 3 9 0 0% 89

89100

% 0 0% 10 110% 

Option 4 9 0 0% 9 100% 0 0% 0 0%

a. The alternative analysis case concepts are not applicable to the Other Industries firms and facilities, because these 

facilities do not receive sample weights.

b. For Options 1, 2, and 3, all facilities and parent firms are assigned costs; however three firms are not analyzed 

because no revenue data is available. In Option 4, these three firms are assigned no costs, and so by definition have 

cost to revenue ratios less than 1% and are categorized as such.

As presented in Exhibit VII-6, EPA estimated that the number of firms 

owning regulated facilities in the Primary Manufacturing Industries range from 114117

(Case 1 estimate) to 346359 (Case 2 estimate), depending on the assumed ownership 

cases outlined above. An additional 9 firms are known to own facilities in Other 

Industries.75 

EPA’s analyses indicate that the number of firms falling in the reported 

cost-to-revenue impact ranges is the same across all three optionsOptions 1, 2, and 3, by 

analysis case. No firms fall in the reported impact ranges under Option 4 for either 

 

75 The alternative analysis case conceptsapproaches are not applicable to the Other Industries firms and 

facilities, because these facilities do not receive sample weights. 

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analysis case. Under Case 1, Lower Bound Estimate of Number of Firms Owning 

Facilities/Upper Bound Estimate of Costs Incurred by these Firms, zero of the estimated 

114117 firms owning Manufacturers facilities incur costs between 1 and 3 percent of 

revenue for all Options, and two firms (Option 1 and 2) and one firm (Option 3) incurs

costs exceeding 3 percent of revenue under Options 1, 2, and 3. No firms incur costs 

exceeding 3 percent of revenue. under Option 4. The remaining 112113 (Options 1, 2, 

and 3), and 2) and 113117 (Option 34) firms incur costs below 1 percent of revenue or no 

costs. 

Under Case 2, Upper Bound Estimate of Number of Firms Owning 

Facilities/Lower Bound Estimate of Costs Incurred by these Firms, zero firms in the 

Primary manufacturing industries are estimated to incur costs between 1 and 3 percent of 

revenue under all Options. Like Case 1, one firm incurs costs exceeding 3 percent of 

revenue under Options 1, 2, and 23, and threeno firms under Option 3. In additional four 

firms are estimated to incur costs exceeding 3 percent of revenue under Options 1 and 2 

and one firm under Option 34. The remaining 334349, and 337359 firms, respectively, 

incur costs below 1 percent of revenue or no costs. 

For the firms owning Other Industries facilities, EPA’s analysis indicates 

that across all options, one firm is estimated to incur costs exceeding 3 percent of 

revenue. The remaining eightOptions, no firms incur costs belowexceeding 1 percent of 

revenue. 

Regardless of the analysis case or regulatory option, the number and 

percentage of firms incurring costs between one and three percent of revenue, or 

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b. Electric Generators 

For Electric Generators, EPA assessed the economic impact of the 

regulatory options in three major ways: (1) entity level impacts (at both the facility and 

parent company levels), (2) potential electricity price effects on residential and other 

electricity consumers, and (3) broader electricity market impacts (taking into account the 

interconnectedness of regional and national electricity markets, using five metrics, for the 

full industry, for in-scope facilities only, and as the distribution of impacts at the facility 

level). 

1. Assessment of the Impact on Complying Facilities and Parent Entities 

EPA assessed the cost to complying facilities and parent entities based on 

cost-to-revenue analyses. For these two analyses, the Agency assumed that none of the 

compliance costs will be passed onto consumers through electricity rate increases and 

will instead be absorbed by complying facilities and their parent entities. In performing 

these and other impact analyses, EPA developed and used sample weights to extrapolate 

impacts assessed initially at the level of a sample of facilities to the full population of inscope facilities. Specifically, EPA developed and used different sets of weights, with 

each weight set being used to derive a specific estimate and/or used with a different set of 

sample facilities to which the weights were applied to derive a given estimate. (See 

Appendix 3.A of the EBA report for a discussion on weights development and 

application.) 

a. Cost-to-Revenue Analysis for Complying Facilities 

To provide insight on the potential significance of the compliance costs to 

complying facilities, EPA calculated the annualized after-tax compliance costs of the 

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regulatory options as a percentage of baseline annual revenues, for 559 in-scope 

facilities.76,77 Most of the revenue estimates used in this analysis were developed using 

the average of facility-specific baseline (i.e., pre-promulgation) projections from the 

Integrated Planning Model (IPM) for 2015, 2020, 2025, and 2028.78 In a few instances 

where IPM-based revenue values were not available, EPA used estimates based on 

Energy Information Administration (EIA) data. EPA performed this analysis for each of 

the 257 facilities for which compliance cost estimates were explicitly developed. As 

stated above, EPA used facility sample weights to estimate the total numbers of in-scope 

facilities that fall within various cost-to-revenue ranges as reported in Exhibit VII-7 (see 

Chapter 5 of the EBA report for a discussion of the facility-level cost-to-revenue 

analysis). 

Exhibit VII-7, below, summarizes the facility-level cost-to-revenue 

analysis results for each option, by North American Electricity Reliability Corporation 

(NERC) region.79 EPA estimates for OptionOptions 1, the least stringent option and 4, 

that the majority of facilities subject to today’s proposal will incur annualized costs of 

 

76 For private, tax-paying entities, after-tax costs are a more relevant measure of potential cost burden than 

pre-tax costs. For non tax-paying entities (e.g., State government and municipality owners of in-scope 

facilities), the estimated costs used in this calculation include no adjustment for taxes. 

77 For the facility cost-to-revenue analysis, EPA estimated compliance costs for all facilities as of an 

assumed single proxy compliance year, 2015, for comparison with 2015 revenues. EPA’s choice of the year 

for which cost and revenue values are used in a particular part of the cost analysis was driven by the 

concept of a given analysis (e.g., should cost and revenue values be as of the Rule promulgation year, as of 

a facility’s expected compliance year, or as of a post-compliance, steady state operations year?) and the 

availability of data for the analysis. For more information on the methodology for the facility-level cost-torevenue analysis, see Chapter 5 of the EBA report. 

78 To develop the average of year-by-year revenue values over the data years, EPA set aside from the 

averaging calculation, revenue values for years that are anomalously low.substantially lower than the 

otherwise “steady state average” – e.g., because of a generating unit being out of service for an extended 

period. EPA believes the resulting cost-to-revenue comparison provides a more realistic assessment of 

potential impact on a “steady state” operations basis.

79 The NERC regions used for summarizing these findings are as of 2008. Some NERC regions have been 

re-defined over the past few years. The NERC region definitions used in today’s Proposed Existing 

Facilities Regulation analyses vary by analysis depending on which region definition aligns better with the 

data elements underlying the analysis. 
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less than 1 percent of revenue (481 facilities or 86 percent). Under Options 2 and 3, the 

majority of in-scope facilities, 333 (or approximately 60 percent) and 386 (or 

approximately 69 percent), respectively, will incur annualized costs exceeding 3 percent 

of revenue. 

Exhibit VII-7: Facility-Level Cost-to-Revenue Analysis Results by Regulatory 

Option and NERC Regiona

Number of 

In-Scope 

Facilitiesa,b No Revenuec

Number of Facilities with Cost-ToRevenue Ratio of Minimum 

Ratio 

Maximum 

<1% 1-3% >3% Ratio 

Option 1: IM Everywhere 

ASCC 0 0 0 0 0.00% 0.00% 

ERCOT 5 28 7 2 0.00% 3.28%

FRCC 0 18 4 4 0.00% 3.49%

HICC 0 2 2 0 0.34% 1.04% 

MRO 0 43 4 0 0.00% 1.80% 

NPCC 0 49 14 0 0.00% 2.64%

RFC 0 148 13 3 0.00% 3.58% 

SERC 0 146 6 5 0.00% 3.61% 

SPP 0 28 6 0 0.00% 2.38% 

WECC 0 19 0 4 0.00% 3.38%

Total 5 481 55 18 0.00% 3.61%

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

ASCC 0 0 0 0 0.00% 0.00%

ERCOT 5 5 1 31 0.00% 43.39%

FRCC 0 5 4 16 0.00% 35.37% 

HICC 0 0 0 3 3.87% 8.48% 

MRO 0 20 6 20 0.00% 10.96%

NPCC 0 15 10 38 0.00% 37.53%

RFC 0 47 15 102 0.00% 12.50% 

SERC 0 44 14 100 0.00% 24.23% 

SPP 0 11 6 17 0.00% 49.66%

WECC 0 19 0 4 0.00% 40.10% 

Total 5 166 55 333 0.00% 49.66%

Option 3: I&E Mortality Everywhere 

ASCC 0 0 0 0 0.00% 0.00%

ERCOT 5 5 1 31 0.00% 43.39% 

FRCC 0 5 4 16 0.00% 35.37% 

HICC 0 0 0 3 3.87% 8.48%

MRO 0 6 7 33 0.00% 18.38%

NPCC 0 0 9 55 1.22% 37.53% 

RFC 0 38 8 119 0.00% 51.38% 

SERC 0 29 22 106 0.00% 28.47%

SPP 0 11 6 17 0.00% 49.66%

WECC 0 17 0 6 0.00% 40.10% 

Total 5 112 57 386 0.00% 51.38% 

Option 4: IM for Facilities with DIF>50MGD

ASCC 0 0 0 0 0.00% 0.00%

ERCOT 5 28 7 2 0.00% 3.28%

FRCC 0 18 4 4 0.00% 3.49%
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Number of 

In-Scope 

Facilitiesa,b No Revenuec

Number of Facilities with Cost-ToRevenue Ratio of Minimum 

Ratio 

Maximum 

<1% 1-3% >3% Ratio 

HICC 0 2 2 0 0.34% 1.04%

MRO 0 43 4 0 0.00% 1.80%

NPCC 0 52 11 0 0.00% 2.64%

RFC 0 151 12 2 0.00% 3.54%

SERC 0 148 5 5 0.00% 3.61%

SPP 0 28 6 0 0.00% 2.38%

WECC 0 19 0 4 0.00% 3.38%

Total 5 488 49 17 0.00% 3.61%

a. No explicitly analyzed facilities are located in the ASCC region. For more information on explicitly and 

implicitly analyzed in-scope facilities see Appendix 3.A of the EBA report. 

b. Facility counts exclude baseline closures. 

c.IPM and EIA report no revenue for 2 facilities (5 on the weighted basis); consequently, facility-level 

cost-to-revenue analysis is performed for 257 facilities (559 on the weighted basis).

b. Parent Entity-Level Cost-to-Revenue Analysis 

EPA also assessed the economic impact of the options considered for 

today’s proposed rule at the parent entity-level. The cost-to-revenue analysis at the entity 

level provides insight on the impact of compliance requirements on those entities that 

own more than one in-scope facility. For this analysis, EPA identified the domestic 

parent entity of each in-scope facility and obtained the entity’s revenue from publicly 

available data sources. For 5 identified ultimate parent entities that own at least one 

explicitly analyzed Electric Generator (i.e., Detailed Questionnaire (DQ) facilities and a 

subset of the Short Technical Questionnaire (STQ) facilities with re-circulating systems 

in their baseline) and that are non-U.S. firms EPA could not obtain revenue for a 

domestic entity but did obtain revenue at the level of the international parent entity; for 

these 5 entities, EPA used this international entity revenue in the cost-to-revenue 

analysis. EPA compared the total annualized after-tax compliance costs, as of 2015 to 

the identified parent entity’s total sales revenue (see Chapter 5 of the EBA report). 

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Because compliance costs for the regulatory options were directly 

attributable to only a subset of the in-scope facilities (i.e., the explicitly analyzed, 

Detailed Questionnaire (DQ) facilities and a subset of the Short Technical Questionnaire 

(STQ) facilities with re-circulating systems in their baseline) and were therefore able to 

be linked with only a subset of the parent entities that own in-scope facilities, EPA 

developed and used entity-level sample weights for this analysis, as outlined in the 

Appendix 3.A of the EBA report. EPA defined two cases combining entity-level sample 

weights with facility-level weights to yield approximate estimates of the numbers of 

parent entities incurring costs in specific cost-to-revenue ranges. Each case addresses a 

specific element of the understanding of entity-level effects (see Chapter 5 of the EBA 

report for a discussion of the entity-level cost-to-revenue analysis): 

• Estimation of facility costs at the level of the parent entity, accounting for 

the potential ownership of implicitly analyzed, sample-represented 

facilities by an identified parent entity and

• Estimation of the number of parent entities, accounting for the potential 

presence of parent entities that own only (an) implicitly analyzed 

facility(ies) and thus cannot be associated with the explicitly analyzed 

facilities. 

The two analysis cases and the findings from their analysis are as follows: 

• Using facility-level weights: For this case, facility-level weights were 

applied to the estimated compliance costs for facilities identified as being 

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owned by a given parent entity.80 This calculation may overstate the 

number of facilities and compliance costs at the level of any given parent 

entity, but also likely underestimates the number of parent entities. This 

analysis indicates that 97 unique parent entities own 559 facilities subject 

to today’s proposal. From this analysis, EPA estimates that the majority 

of parent entities will incur annualized costs of less than one percent of 

revenues under OptionsOption 1 (85 out of 97 parent entities or 89 

percent) and), Option 2 (54 out of 97 parent entities or 56 percent), and 

Option 4 (86 out of 97 parent entities or 91 percent). Under the more 

costly Option 3, a nearly equal number of entities are expected to incur 

costs above and below 1 percent of revenue, i.e., 46 and 45 out of 91 

parent entities, respectively, not taking into account 6 parent entities with 

unknown revenue (see Exhibit VII-8).

 

80 Parent entity weights were not used in this calculation because the combination of facility weights and 

entity weights would overstate, perhaps substantially, the estimate of in-scope facilities and compliance 

costs assigned to parent entities. 

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Exhibit VII-8: Entity-Level Cost-to-Revenue Analysis Results, Using Facility-Level 

Weights 

Parent Entity 

Type 

Total 

Number of 

Facilitiesb

Total 

Number 

of Entities 

Number of Entities with Cost-to-Revenue 

Ratio ofa

<1% 1-3% >3% Unknown

Option 1: IM Everywhere 

Cooperative 25 11 10 0 1 0 

Federal 16 1 1 0 0 0

Investor-owned 306 3938 3938 0 0 0 

Municipality 25 13 9 4 0 0 

Nonutility 170 2930 2223 0 1 6

Other political 

subdivision 0 0 0 0 0 0 

State 17 4 4 0 0 0 

Total 559 97 85 4 2 6 

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

Cooperative 25 11 7 1 3 0 

Federal 16 1 0 0 1 0 

Investor-owned 306 3938 2120 14 4 0 

Municipality 25 13 6 5 2 0 

Nonutility 170 2930 1718 2 4 6 

Other political 

subdivision 0 0 0 0 0 0 

State 17 4 3 0 1 0 

Total 559 97 54 22 15 6

Option 3: I&E Mortality Everywhere 

Cooperative 25 11 4 3 4 0 

Federal 16 1 0 0 1 0 

Investor-owned 306 3938 2120 14 4 0

Municipality 25 13 2 5 6 0 

Nonutility 170 2930 1718 2 4 6 

Other political 

subdivision 0 0 0 0 0 0 

State 17 4 2 1 1 0

Total 559 97 46 25 20 6 

Option 4: IM for Facilities with DIF>50 MGD

Cooperative 25 11 10 0 1 0

Federal 16 1 1 0 0 0

Investor-owned 306 38 38 0 0 0

Municipality 25 13 10 3 0 0

Nonutility 170 30 23 0 1 6

Other political

subdivision 0 0 0 0 0 0

State 17 4 4 0 0 0

Total 559 97 86 3 2 6

a. EPA was unable to determine entity-level revenues for 6 (8 weighted) parent entities; consequently, for the 

purpose of this analysis, EPA used the sum of facility-level revenues for facilities owned by these parent 

entities. 

b. Facility counts exclude baseline closures. 

• Using entity-level weights: For this case, entity-level weights were applied 

to the calculated number of parent entities estimated to incur costs in each 

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cost-to-revenue range.81 This calculation may understate the number of 

facilities and compliance costs at the level of any given parent entity, but 

accounts more comprehensively for the number of parent entities owning 

in-scope facilities. This analysis found that 140 unique domestic parent 

entities own 257 facilities subject to today’s proposal (see Exhibit VII9).82 From this analysis, EPA estimates that the majority of parent entities 

will incur annualized costs of less than one percent of revenues regardless 

of the option. 

Again, a cost-to-revenue ratio below one percent indicates that a facility is 

unlikely to face a significant impact due to the regulatory option. From this analysis, EPA 

estimates that the majority of parent entities will incur annualized costs of less than 1 

percent of revenues under all three options.

 

81 In the same way as stated above, facility weights were not used in conjunction with entity weights 

because the combination of facility weights and entity weights would overstate, perhaps, the estimate of inscope facilities and compliance costs assigned to parent entities. 

82 The NERC regions used for summarizingto summarize these findings are as of 2004, which is the NERC 

region basis used in the utility-level EIA 2007 database. Some NERC regions have been re-defined over the 

past few years. The NERC region definitions used in these analyses vary by analysis depending on which 

region definition aligns better with the data elements underlying the analysis. 

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Exhibit VII-9: Entity-Level Cost-to-Revenue Analysis Results, Using Entity-Level 

Weights 

Parent Entity 

Type 

Total 

Number of 

Facilitiesb

Total 

Number 

of 

Entitiesc

Number of Entities with Cost-toRevenue Ratio ofa

<1% 1-3% >3% Unknown

Option 1: IM Everywhere

Cooperative 13 20 18 2 0 0

Federal 7 1 1 0 0 0 

Investor-owned 138 4342 4342 0 0 0 

Municipality 13 35 35 0 0 0 

Nonutility 78 3738 2829 0 1 8 

Other political 

subdivision 0 0 0 0 0 0 

State 8 4 4 0 0 0

Total 257 140 129 2 1 8 

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD

Cooperative 13 20 13 5 2 0 

Federal 7 1 001 0

Investor-owned 138 4342 3635 6 1 0 

Municipality 13 35 24 8 3 0 

Nonutility 78 3738 2425 41 8

Other political 

subdivision 0 0 0 0 0 0 

State 8 4 301 0

Total 257 140 101 23 9 8 

Option 3: I&E Mortality Everywhere 

Cooperative 13 20 9 9 2 0 

Federal 7 1 001 0

Investor-owned 138 4342 3635 6 1 0 

Municipality 13 35 13 11 11 0

Nonutility 78 3738 2425 4 1 8 

Other political 

subdivision 0 0 0 0 0 0 

State 8 4 3 0 1 0 

Total 257 140 86 29 17 8 

Option 4: IM for Facilities with DIF>50MGD

Cooperative 13 20 18 2 0 0

Federal 7 1 1 0 0 0

Investor-owned 138 42 42 0 0 0

Municipality 13 35 36 0 0 0

Nonutility 78 38 29 0 1 8

Other political 

subdivision 0 0 0 0 0 0

State 8 4 4 0 0 0

Total 257 140 130 2 1 8

a. EPA was unable to determine entity-level revenues for 6 (8 weighted) parent entities; 

consequently, for the purpose of this analysis, EPA used the sum of facility-level revenues for 

facilities owned by these parent entities. 

b. Facility counts exclude baseline closures.

c. There are a total of 143 parent entities on an unweighted basis, 3 of which are other political 

subdivision entities. These entities own only implicitly analyzed facilities; consequently, there is no 

explicitly analyzed other political subdivision parent entity to represent these implicitly analyzed 

parent entities and total weighted entity counts do not include 3 other political subdivision entities.

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As discussed above, because compliance costs for the regulatory options were 

directly attributable to only a subset of the in-scope facilities and were therefore able to 

be linked with only a subset of the parent entities that own in-scope facilities, EPA 

conducted entity cost-to-revenue analysis using two weighting approaches. While 

usingUsing facility-level weights is likely to underestimate the number of parent entities 

and overstate the number of facilities and compliance costs at the level of any given 

parent entity. At the same time, using entity-level weights is likely to account more 

comprehensively for the number of parent entities owning in-scope facilities but 

understate the number of facilities and compliance costs at the level of any given parent 

entity. EPA estimates that 4 and 2 firms (0.7 percent and 0.4 percent, respectively) would 

incur costs between 1 and 3 percent of their revenues under Option 1, 22 and 23 firms 

(3.9 percent and 4.1 percent, respectively) under Option 2, and 25 and 29 firms (4.5 

percent and 5.2 percent, respectively) under Option 3. The Agency also estimates that 2 

and 1 firms (0.4 percent and nearly zero percent, respectively) would incur costs 

exceeding 3 percent of revenue under Option 1, 15 and 9 firms (2.7 percent and 1.6 

percent, respectively) under Option 2, and 20 and 17 firms ( 3.6 percent and 3.0 percent, 

respectively) under Option 3.

Under these alternative approaches, at the 1-3 percent of revenue impact level, 

EPA estimates that 4 and 2 firms (4.1 percent and 1.4 percent of firms owning in-scope 

facilities, respectively) would fall in this impact range under Option 1, 22 and 23 firms 

(22.7 percent and 16.4 percent, respectively) under Option 2, and 25 and 29 firms (25.8

percent and 20.7 percent, respectively) under Option 3. At the 3 percent of revenue 

impact level, the Agency estimates that 2 and 1 firms (2.1 percent and 0.7 percent, 

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respectively) would fall in this impact range under Option 1, 15 and 9 firms (15.5 percent 

and 6.4 percent, respectively) under Option 2, and 20 and 17 firms (20.6 percent and 12.1

percent, respectively) under Option 3. The results for Option 4 are virtually identical to 

those of Option 1, with one fewer entity incurring costs between 1 and 3 percent of 

revenue. 

2. Assessment of Potential Electricity Price Effects 

As an additional measure of economic impact, EPA assessed the potential 

electricity price effects from today’s Proposed Existing Facilities Regulation in two 

ways: (1) an assessment of the potential annual increase in household electricity costs and 

(2) an assessment of the potential annual increase in electricity costs per MWh of total 

electricity sales. These analyses assume that all compliance costs will be passed through 

on a pre-tax basis as increased electricity prices as opposed to the treatment in the 

facility- and firm-level analyses discussed in Section VII.D.b.1, which assume that none

of the compliance costs will be passed to consumers through electricity rate increases. 

For discussion of the reasonableness of this assumption see EBA Chapter 5. 

a. Cost to Residential Households 

Using the assumptions outlined above, EPA estimated the potential annual 

increase in electricity costs per household by NERC region. The analysis uses the total 

annualized pre-tax compliance cost per megawatt hour (MWh) for the year 2015, in 

conjunction with the reported total electricity sales quantity for each NERC region as 

reported by the EIA for 2007 for all NERC regions except ASCC and HICC, for which 

total 2015 electricity sales projections came from the Department of Energy’s Annual 

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Energy Outlook 2009 (AEO 2009).83 This analysis also uses the quantity of residential 

electricity sales per household as reported by the 2007 EIA for all NERC regions 2007. 

To calculate the average cost per household, by region, EPA divided total 

compliance costs for each NERC region by the reported total MWh of sales within the 

region. The potential annual cost impact per household was then calculated by 

multiplying the estimated average cost per MWh by the average MWh per household, by 

NERC region.84

Exhibit VII-10 below, summarizes the annual household impact results for 

each option, by NERC region. These results show that for Option 1, the average annual 

cost per residential household is expected to range from $0.05 in WECC to $3.93 in SPP, 

for Option 2 from $0.09 in WECC to $27.11 in SERC, and for Option 3 from $0.11 in 

WECC to $27.88 in SERC. On average Overall, for a typical U.S. household, Option 14

is expected to result in the lowest annual cost of $1.7837 per household, while Option 3 is 

expected to result in the highest annual cost of $17.60 per household. Overall, Option 1 

and Option 2 isare estimated to result in annual costs of $17.101.41 per household and 

$17.09 per household, respectively. 

Exhibit VII-10: Average Annual Cost per Residential Household in 2015 by 

Regulatory Option and NERC Regiona,b 

NERC Regionc Option 1 Option 2 Option 3 Option 4

 

83 AEO does not provide information for ASCC and HICC. 

84 The NERC regions used for summarizing these findings are as of 2004, which is the NERC region basis 

used in the utility-level EIA 2006 database. Some NERC regions have been re-defined over the past few 

years. The NERC region definitions used in today’s Proposed Existing Facilities Regulation analyses vary 

by analysis depending on which region definition aligns better with the data elements underlying the 

analysis. 

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NERC Regionc Option 1 Option 2 Option 3 Option 4

ASCC $0.00 $0.00 $0.00 $0.00 

ECAR $1.23 $20.00 $20.47 $1.22 

ERCOT $1.76 $26.52 $26.52 $1.74 

FRCC $2.37 $17.89 $18.21 $2.37 

HICC $3.16 $23.82 $23.82 $3.16 

MAAC $2.11 $18.97 $19.31 $1.95 

MAIN $1.46 $19.18 $20.18 $1.41 

MAPP $1.79 $16.00 $17.04 $1.74 

NPCC $1.38 $19.89 $21.13 $1.37 

SERC $1.64 $27.11 $27.88 $1.61 

SPP $3.93 $21.56 $21.56 $3.86 

WECC $0.05 $0.09 $0.11 $0.01 

U.S.d $1.7841 $17.1009 $17.60 $1.37 

a. The rate impact analysis assumes full pass-through of all compliance costs to electricity consumers. 

b.. Cost estimates exclude baseline closures. 

c. No explicitly analyzed facilities are located in the ASCC region. For more information on explicitly and implicitly 

analyzed in-scope facilities see Appendix 3.A of the EBA report.

d. Options 1 and 2 include cost impact from repowerings.

As stated above, this analysis assumes that all of the compliance costs will be 

passed onto consumers through increased electricity rates. However, at least some

facilities and firms are likely to absorb some of these costs, thereby reducing the impact 

of today’s proposed rule on electricity consumers. At the same time, EPA recognizes that 

Electric Generators that operate as regulated public utilities are generally permitted to 

pass on environmental compliance costs as rate increases to consumers.

b. Compliance Cost per Unit of Electricity Sales 

EPA also calculated the per unit of electricity sales cost of the regulatory 

options. 

EPA used two data inputs in this analysis (1) total pre-tax compliance cost by NERC 

region, and (2) estimated total electricity sales, from the AEO 2009 for 2015, by NERC 

region, for all NERC regions except ASCC and HICC; for ASCC and HICC EPA used 

2007 EIA. The Agency summed sample-weighted pre-tax annualized compliance costs 

as of 2015 over complying facilities by NERC region to calculate an approximate total 

estimated annual cost in each region. EPA then calculated the approximate average price 

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impact per unit of electricity consumption by dividing total compliance costs by the 

reported total MWh of sales in each NERC region. 

As reported in Exhibit VII-11, annualized compliance costs (in dollars per 

KWh sales) range from 0.001¢ in the WECC region to 0.040¢ in the HICC region for 

Option 1, and from 0.001¢ in the WECC region to 0.303¢ in the HICC region for Options 

2 and 3., and from less than 0.001¢ in the WECC region to 0.040¢ in the HICC region for 

Option 4. On average, across the United States, Option 14 results in the lowest cost of 

0.016012¢ per KWh, while Option 3 results in the highest cost of 0.157¢ per KWh. The 

proposed option,Option 1 and Option 2, results result in national costs of 0.013¢ per 

KWh and 0.153¢ per KWh, respectively. 

Exhibit VII-11: Compliance Cost per Unit of Electricity Sales in 2015 by Regulatory 

Option and NERC Region (2009 ¢/ KWh Sales)a,b 

NERC Regionc

Annualized Pre-Tax 

Compliance Costs 

(2009 $) 

Total Electricity 

Sales 

(KWh) 

Compliance Cost per 

Unit of Electricity 

Sales 

(2009 ¢/ KWh Sales) 

Option 1: IM Everywhere

ASCC $0 6,326,610,000 0.000 

ECAR $62,390,503 569,849,487,305 0.011 

ERCOT $40,029,111 313,395,965,576 0.013 

FRCC $41,259,203 242,320,907,593 0.017 

HICC $4,259,468 10,585,038,000 0.040 

MAAC $61,468,467 294,365,234,375 0.021 

MAIN $41,292,594 275,415,008,545 0.015 

MAPP $27,565,966 165,189,056,396 0.017 

NPCC $51,647,619 284,990,412,176 0.018 

SERC $99,360,633 887,073,303,223 0.011 

SPP $63,811,175 204,172,271,729 0.031 

WECC $4,015,273 701,826,043,025 0.001 

U.S. d $539,931,049497,100,012 3,960,424,804,688 0.016013 

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

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NERC Regionc

Annualized Pre-Tax 

Compliance Costs 

(2009 $) 

Total Electricity 

Sales 

(KWh) 

Compliance Cost per 

Unit of Electricity 

Sales 

(2009 ¢/ KWh Sales) 

ASCC $0 6,326,610,000 0.000 

ECAR $1,010,953,670 569,849,487,305 0.177 

ERCOT $602,721,709 313,395,965,576 0.192 

FRCC $311,699,736 242,320,907,593 0.129 

HICC $32,074,166 10,585,038,000 0.303 

MAAC $551,710,436 294,365,234,375 0.187 

MAIN $542,786,160 275,415,008,545 0.197 

MAPP $246,541,770 165,189,056,396 0.149 

NPCC $744,738,535 284,990,412,176 0.261 

SERC $1,643,059,866 887,073,303,223 0.185 

SPP $350,239,021 204,172,271,729 0.172 

WECC $6,930,361 701,826,043,025 0.001 

U.S.e $6,044,209,099043,455,430 3,960,424,804,688 0.153 

Option 3: I&E Mortality Everywhere 

ASCC $0 6,326,610,000 0.000 

ECAR $1,035,075,751 569,849,487,305 0.182 

ERCOT $602,721,709 313,395,965,576 0.192 

FRCC $317,419,881 242,320,907,593 0.131 

HICC $32,074,166 10,585,038,000 0.303 

MAAC $561,627,430 294,365,234,375 0.191 

MAIN $571,233,958 275,415,008,545 0.207 

MAPP $262,582,596 165,189,056,396 0.159 

NPCC $791,203,354 284,990,412,176 0.278 

SERC $1,689,520,164 887,073,303,223 0.190 

SPP $350,239,021 204,172,271,729 0.172 

WECC $8,641,891 701,826,043,025 0.001 

U.S. $6,222,339,919 3,960,424,804,688 0.157 

Option 4: IM for Facilities with DIF>50MGD

ASCC $0 6,326,610,000 0.000

ECAR $61,651,375 569,849,487,305 0.011

ERCOT $39,560,948 313,395,965,576 0.013

FRCC $41,259,203 242,320,907,593 0.017

HICC $4,259,468 10,585,038,000 0.040

MAAC $56,749,132 294,365,234,375 0.019

MAIN $40,018,375 275,415,008,545 0.015

MAPP $26,744,938 165,189,056,396 0.016

NPCC $51,290,663 284,990,412,176 0.018

SERC $97,785,654 887,073,303,223 0.011

SPP $62,721,433 204,172,271,729 0.031

WECC $913,556 701,826,043,025 0.000

U.S. $482,954,744 3,960,424,804,688 0.012

a. This analysis assumes full pass-through of all compliance costs to electricity consumers. 

b.Cost values exclude baseline closures. 

c. There are no explicitly analyzed facilities located in the ASCC region. For more information on explicitly and 

implicitly analyzed in-scope facilities see Appendix 3.A of the EBA report.

d. Includes $42,831,037 for repowering.

e. Includes $753,670 for repowering.

3. Assessment of the Impacts in the Context of Electricity Markets 

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In the analyses for the previous 316(b) regulations, EPA used the 

Integrated Planning Model (IPM), a comprehensive electricity market optimization 

model, to assess the economic impact of regulatory options within the context of regional 

and national electricity markets. For its economic impact assessment of today’s proposed 

regulatory options, EPA used an updated version of this same analytic system, Integrated 

Planning Model Version 3.02 EISA (IPM V3.02), to assess facility and market-level 

effects of the options 

Use of a comprehensive, market analysis system is important in assessing 

the potential impact of the options because of the interdependence of electricity 

generating units in supplying power to the electric transmission grid. Increases in 

electricity production costs and potential reductions in electricity output at directly 

affected facilities – whether due to the temporary shutdown of electric generating units 

during technology installation and/or the energy production penalties that can result from 

compliance system operation – can have a range of broader market impacts that extend 

beyond the effect on complying facilities and their direct customers. In addition, the 

impact of compliance requirements on directly affected facilities may be seen differently 

when the analysis considers the impact on those facilities in the context of the broader 

electricity market instead of looking at the impact on a standalone, single-facility basis. 

IPM V3.02 provides outputs for the North American Electric Reliability 

Corporation (NERC) regions that lie within the continental United States. IPM V3.02 

does not analyze electric power operations in Alaska and Hawaii because these states’ 

electric power operations are not connected to the continental U.S. power grid. 

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IPM V3.02 is based on an inventory of U.S. utility- and non-utility-owned 

boilers and generation facilitiesgenerators that provide power to the integrated electric 

transmission grid, as recorded in the Department of Energy’s Energy Information 

Administration databases as of 2005.85 The IPM baseline universe of facilities includes 

545533, or nearly all, of the 571559 electric generating facilities that EPA estimates will 

be within the scope of today’s proposed rule.86 IPM Version 3.02 embeds a baseline 

energy demand forecast that is derived from the Department of Energy’s Annual Energy 

Outlook 2008 (AEO 2008AEO2008). IPM V3.02 incorporates in its analytic baseline the 

expected compliance response for the following air regulations affecting the power 

sector: Title IV of the Clean Air Act (the Acid Raid Program); the NOx SIP Call; various 

New Source Review (NSR) settlements87; and several state rules88 affecting emissions of 

SO2 and NOx that were finalized through February 3, 2009. IPM also includes state rules 

that have been finalized and/or approved by a state’s legislature or environmental agency, 

and in certain instances, facility-level compliance technology installations that werehave 

already been undertaken because of CAIR requirements.89,90

 

85 In some instances, facility information has been updated to reflect known material changes in a plant’s 

generating capacity since 2005. 

86 The exclusions of facilities from the IPM analysis include 4 facilities that are located in Alaska or Hawaii 

(and thus not included in IPM), 4 “lower-48” facilities that are not connected to the integrated electric 

transmission grid, 57 facilities excluded from the IPM baseline as the result of custom adjustments made by 

ICF, and 1311 facilities that are not explicitly present in the 316(b) facility dataset for this analysis. See 

Chapter 6 of the EBA report for more details. 

87 Include agreements between EPA and Southern Indiana Gas and Electric Company (Vectren), Public 

Service Enterprise Group, Tampa Electric Company, We Energies (WEPCO), Virginia Electric & Power 

Company (Dominion), Santee Cooper, Minnkota Power Coop, American Electric Power (AEP), East 

Kentucky Power Cooperative (EKPC), Nevada Power Company, Illinois Power, Mirant, Ohio Edison, and 

Kentucky. 

88 Include current and future state programs in Connecticut, Delaware, Georgia, Illinois, Maine, Maryland, 

Massachusetts, Minnesota, Missouri, New Hampshire, North Carolina, New Jersey, New York, Oregon, 

Texas, and Wisconsin. 

89 For a detailed description of IPM Version 3.02, see Chapter 6 of the EBA report. 90 At the time that EPA began analyzing the Proposed Existing Facilities Rule options, the Agency was still 

developing the regulatory standards to replace CAIR requirements. The Transport Rule, which replaces 
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EPA recognizes that due to downtime or connection outages estimated to 

occur in conjunction with installation of several of the technologies, and the number of 

facilities that will need to come into compliance over the years after today’s rule is 

promulgated, short-term electric reliability issues could occur unless care is taken within 

each region to coordinate outages with NERC and, where possible, with normal 

scheduled maintenance operations. Based on this concern, EPA’s options were 

developed with flexibility provided to the permit authority to tailor compliance timelines. 

EPA anticipates in those instances where local electric reliability could be affected, 

facilities would notify the Director via provisions in the permit application. Once 

approved, facilities would receive workable construction schedules from permit writers to 

schedule installation down times without negatively impacting electric supply reliability. 

In performing analyses based on IPM V3.02, EPA first developed a 

baseline– i.e., without regulation – projection of electricity markets and facility 

operations over the period from the expected promulgation date, 2012, through 2028 

(pre-regulation baseline case). EPA then overlaid this analysis with the estimated 

compliance costs and other operating effects – downtime for installation of compliance 

technology and energy penalty – for in-scope facilities under selected regulatory options 

(post-compliance cases). 

 CAIR, was proposed on July 6, 2010, i.e., after EPA began to develop the baseline for the current 316(b) 

existing facilities rule analyses. Consequently, the IPM baseline used for the analysis of the Proposed 

existing facilities rule options does not reflect requirements under the newly proposed Transport Rule.90 

However, because EPA used IPM v3.02 EISA, i.e., the same IPM version used for the market model 

analysis of 316(b) regulatory options, to assess the impact of the proposed Transport Rule on the U.S. 

electric power sector, the 316(b) baseline includes XXXXXXXXX.other important existing regulations 

currently affecting this industry sector. Consequently, on balance, EPA judges that the performance of the 

market model analyses against the v3.02 EISA constitutes a reasonable cost and economic impact analysis 

for the Proposed Existing Facilities Rule – in particular, given the uncertainties regarding the final

standards promulgated, and the specific requirements that States will adopt in implementing the Transport 

Rule.

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For the IPM analysis, EPA analyzed in IPM all three costing options 

considered in developing today’s proposed rule: (1) Requirement ofthat closely 

correspond to those discussed elsewhere in this document: (1) Non-Cooling Tower-Based 

Impingement and Entrainment requirements at all in-scope facilities (Option 1: IM 

Everywhere), (2) Installation ofImpingement Mortality Controls at all in-scope facilities, 

and Cooling Towers at all in-scope facilities with DIF exceeding 125 MGD (Option 2: 

Cooling TowersIM Everywhere and EM for facilitiesFacilities with DIF exceeding 125 

MGD>125MGD), and (3) Installation of Cooling Towers at all in-scope facilities (Option 

3: Cooling Towers everywhere) I&E Mortality Everywhere).91 The fourth option 

discussed elsewhere in this document – Option 4: Non-Cooling Tower-Based 

Impingement and Entrainment requirements at all in-scope facilities with DIF of 50 

MGD or more – was not analyzed in IPM due to time constraints. Since this option 

mimics the requirements of Option 1, but only applies them to a subset of in-scope 

facilities, the findings for this option in the IPM analysis would be lower than those 

estimated for Option 1.

The IPM V3.02 runs provide analysis results for selected run-years. EPA 

specified these analysis years taking into account the expected promulgation date for 

today’s Proposed Existing Facilities Regulation (2012), the years in which facilities 

would be expected to install compliance technology and achieve compliance (2013-

2027)92, and the years in which all complying facilities would be expected to achieve 

 

91 The costs as analyzed in IPM differ slightly from those used in the non-IPM analyses. For more details 

on these differences see Chapter 6 of the EBA report.

92 For the IPM-based analyses of IM-only installations, the specified compliance window is from 2013 to 

2017, for cooling tower installations by manufacturing and non-nuclearfossil fuel electric power generating 

facilities from 2018 to 2022, and for cooling tower installations by nuclear electric power generating 

facilities from 2023 to 2027. 
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compliance (2028 and subsequent years). In the following sections, EPA reports results 

for the analysis year 2028, which is the first year after promulgation in which all in-scope 

facilities would be expected to have achieved compliance and thus represents a steady 

state of post-compliance operations.

93

, i.e., the steady-state year.94 In addition, EPA also analyzed potential 

electricity market-level effects for years during which facilities would be expected to shut 

down operations temporarily to complete technology installation. For the IPM-based 

analyses of IM-only installations, the specified compliance window is from 2013 to 2017, 

for cooling tower installations by fossil fuel electric power generating facilities from 

2018 to 2022, and for cooling tower installations by nuclear electric power generating 

facilities from 2023 to 2027. Consequently, the analysis of compliance technology 

installation downtime used output from model run-years 2015 for IM technology 

installations and 2020 and 2025 for CT installations by fossil fuel and nuclear electric 

power generating facilities, respectively. The impacts of the analysis options are 

measured as the difference between key economic and operational impact metrics 

between the pre-regulation baseline case and the post-compliance case. 

 

93 EPA also analyzed potential market-level effects for years during which facilities would be expected to 

shut down operations temporarily to complete technology installation. This analysis used output from 

model run-years 2015 for IM installations and 2020 for CT installations by manufacturing and non-nuclear 

electric power generating facilities. EPA anticipates that nuclear facilities will incur additional downtime 

as the result of 316(b) technology installation. See Chapter 6 of the final EBA for the results of this 

analysis.

94 The first year of full compliance is 2028 for Options 2 and 3, and 2018 for Option 1. To facilitate 

comparison of market-level impacts across options, this presentation focuses on 2028 as the steady state 

comparison year.
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a. Analysis Results for the Year 2028 – To Reflect Steady State, Post-Compliance 

Operations

For the steady-state analysis (year 2028), EPA considered impact metrics of 

interest at three levels of aggregation: (1) impact on national and regional electricity 

markets, (2) impact on the group of in-scope power generating facilities (i.e., facilities 

that are expected to be within the scope of today’s proposed regulation but do not 

necessarily incur technology cost), and (3) impact on individual in-scope facilities. 

a.

(1) Impact on National and Regional Electricity Markets [update with the January 2011 

IPM runs]

For the assessment of market level impacts, EPA considered five output 

metrics from IPM V3.02: (1) incremental capacity closures, calculated as the difference 

between capacity under the regulatory options and capacity under the base case, which 

includes both full facility closures and partial facility closures (i.e., unit closures) in 

aggregate capacity terms; (2) incremental capacity closures as a percentage of baseline 

capacity; (3) post-compliance changes in variable production costs per MWh, calculated 

as the sum of total fuel and variable O&M costs divided by net generation; (4) postcompliance changes in energy price, where energy prices are defined as the wholesale 

prices received by facilities for the sale of electric generation; and (5) post-compliance 

changes in pre-tax income, where pre-tax income is defined as total revenue minus the 

sum of fixed and variable O&M costs, fuel costs, and annualized capital costs. 

Exhibit VII-12 reports results for the three Analysismarket model analysis

Options for each of the five metrics above, with national totals and detail at level of 

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regional electricity markets defined on the basis of the current NERC regions. These 

These market model analysis options correspond to regulatory Options 1, 2, and 3 (EPA 

did not run Option 4 separately because EPA assumes baseline MW capacity basis 

Options 1 and 4 are similar, and Option 4 is less stringent than Option 1. Results for 

Option 1 can be viewed as an upper bound estimate of the market impacts of Option 4 in 

Exhibits VII-12, VII-13,VII-14, and VII-15). The NERC regions are as follows: ERCOT 

(Electric Reliability Council of Texas), FRCC (Florida Reliability Coordinating Council), 

MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination 

Council), RFC (ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability 

Council), SPP (Southwest Power Pool), and WECC (Western Electricity Coordinating 

Council). 

Additional results are presented in Chapter 6 of the EBA report. Chapter 6 

also presents a more detailed interpretation of the results of the market-level analysis. 

Exhibit VII-12: Impact of Market Model Analysis Options on National and 

Regional Markets at the Year 2028 

NERC 

Region 

Baseline 

Capacity 

(MW) 

Incremental Closures Change in 

Variable 

Production 

Cost per MWh 

Change in 

Energy 

Price per 

MWh 

Change in 

Pre-Tax 

Income 

(2009 $) 

Capacity 

(MW) 

% of Baseline 

Capacity 

Option 1: IM Everywhere 

ERCOT 98,757 151 0.2% -0.1% 0.0% -0.4%

FRCC 79,298 75 0.1% 0.3% 0.0% -0.4%

MRO 71,200 29 0.0% -0.4% 0.0% -1.0%

NPCC 79,688 682 0.9% -0.4% 0.1% 0.3%

RFC 244,700 -279 -0.1% 0.2% 0.1% -0.1%

SERC 286,461 -79 0.0% -0.1% 0.0% -0.4%

SPP 67,703 13 0.0% 0.0% 0.0% -0.5%

WECC 219,764 9 0.0% 0.0% 0.0% -0.1%

Total 1,147,571 601 0.1% 0.0% NA -0.3%

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

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NERC 

Region 

Baseline 

Capacity 

(MW) 

Incremental Closures Change in 

Variable 

Production 

Cost per MWh 

Change in 

Energy 

Price per 

MWh 

Change in 

Pre-Tax 

Income 

(2009 $) 

Capacity 

(MW) 

% of Baseline 

Capacity 

ERCOT 98,757 4,462 4.5% -1.1% 0.2% -9.5%

FRCC 79,298 36 0.0% 1.2% 0.1% -4.7%

MRO 71,200 806 1.1% 1.5% 0.1% -8.4%

NPCC 79,688 3,862 4.8% -2.6% -1.6% -10.4%

RFC 244,700 3,197 1.3% 2.7% 0.3% -10.3%

SERC 286,461 903 0.3% 2.0% -0.1% -8.9%

SPP 67,703 969 1.4% 0.9% -0.1% -8.6%

WECC 219,764 184 0.1% 0.1% -0.3% -0.8%

Total 1,147,571 14,418 1.3% 1.0% NA -7.6%

Option 3: I&E Mortality Everywhere 

ERCOT 98,757 4,498 4.6% -1.2% 0.2% -9.5%

FRCC 79,298 36 0.0% 1.3% 0.1% -4.8%

MRO 71,200 801 1.1% 1.5% 0.1% -9.1%

NPCC 79,688 3,861 4.8% -2.7% -1.7% -11.0%

RFC 244,700 3,195 1.3% 2.7% 0.5% -10.2%

SERC 286,461 997 0.3% 2.0% 0.0% -8.9%

SPP 67,703 1,004 1.5% 0.9% 0.0% -8.7%

WECC 219,764 183 0.1% 0.1% -0.3% -0.9%

Total 1,147,571 14,576 1.3% 1.0% NA -7.7%

As reported in Exhibit VII-12, the market model analysis indicates that 

Option 1, would have very small effects inon overall electricity markets, on both a 

national and regional sub-market basis, in the year 2028, the first analysis year of full 

compliance with the regulation. At the national level, the analysis indicates a total 

reduction in capacity from closures of XXX601 MW, or less than X0.1 percent of the 

total capacity baseline in 2028 (capacity closures are discussed in greater detail in the 

next section, Section VII.C - b).. At the regional level, the greatest capacity reduction, 

XXX682 MW, occurs in the XXXXNPCC region; this reduction would be approximately 

X.X0.9 percent of baseline capacity. SomeTwo NERC regions, for example, the XXXX,

– RFC and SERC – are estimated to experience avoided capacity closures – i.e., one or 

more generating units that are otherwise projected to cease operations in the baseline 

become more economically attractive sources of electricity in the post-compliance case, 

because of relative changes in the economics of electricity production across the full 

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market, and thus avoid closure. This counterintuitive result is due to the integrated nature 

of electricity markets. 

At the national level, the variable production cost of electricity increases 

by only X.XX percent fromstays essentially the pre-regulation baseline value. Again, 

this effect variessame, but with small variations by region, with the. The greatest increase 

occurringoccurs in the XXXX (X.XX%)FRCC (0.3 percent) and the smallest impact 

(negative) occurring in the XXXX (-X.3XX%). Overall, energy prices are projected 

tolargest decline very slightly in the post-compliance case (by X.X% -X.X%,occurring in 

MRO and NPCC (0.4 percent). Energy prices also change little across NERC regions);, 

with NPCC and RFC recording small increases of 0.1 percent – these very small 

estimated changes in energy prices are essentially within the analytic “noise” of the 

market model analysis system. WithGiven the additional costs from compliance and 

increaseswith almost no change in energy production costselectricity prices, national 

sector-level pre-tax income is projected to decline very slightly, by X.X0.3 percent. All 

regions except the XXXXNPCC experience a decrease in pre-tax income; the greatest 

decrease, X.Xapproximately 1.0 percent, occurs in the XXXX.MRO.95

Option 2 requires that facilities with cooling water design intake of 125 

MGD or less meet non-cooling tower-based impingement mortality requirements and 

site-specific entrainment mortality BTA (i.e., Option 1 specifications), while facilities 

with cooling water design intake exceeding 125 MGD install cooling towers. As 

 

95 IPM does not model traditional utility rate regulation but attempts to capture price effects as though they 

occur in competitive, deregulated markets. As a result, the price effects estimated in IPM may be less than 

those that would actually occur, given that most States continue to operate under traditional utility 

regulation. Likewise, the proposed rule’s impact on electric generators’ net income may be overstated. In 

contrast, the electricity rate impact analyses presented earlier in this section (Section VII. 2), assume full 

pass-through of compliance costs as increased electricity prices, which may more closely approximate the 

price effect in regulated markets, but could overstate the price effect in deregulated markets. 
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expected, the market model analysis projects that the more expensive Option 2, with 

some facilities installing cooling towers would have a considerably greater impact than 

Option 1 on national and regional electricity markets. The total projectedUnder Option 2,

capacity loss is eight times that of Option 1, with closures totaling X,XXXtotal 14,418

MW, or X.X1.3 percent of the baseline capacity value, with all regions except for the 

XXXX projected to incur closures. The largest percentage impact occurs in the 

XXXXNPCC, with a loss of approximately X.X4.8 percent of the baseline capacity 

value. Similarly, variable production costs for electricity generation increase nationally 

by X.Xapproximately 1.0 percent, with the largest increase occurring in the XXXXRFC, 

at X.X2.7 percent. Energy prices also increase across all; only two of the 8 NERC

regions, with the impact ranging from X.X – ERCOT and NPCC – experience a decline 

of 1.1 percent in the XXXX to X.Xand 2.6 percent in the XXXX., respectively. The 

effect on energy prices varies across regions, with RFC recording the largest increase, at 

0.3 percent, and NPCC recording the largest decline, 1.6 percent. Finally, as would be 

expected with the considerably higher compliance outlays, longer installation downtimes, 

and higher energy penalties with some facilities installing cooling towers under the 

Cooling Towers Everywhere caseOption 2, total sector pre-tax income is more materially 

affected compared to Option 1: at the national level, pre-tax income declines by X.X7.6

percent. All regions experience a loss in pre-tax income, with the largest loss occurring 

in the XXXXNPCC, at XX.X10.4 percent. 

b.The market model analysis projects that the most expensive option, Option 3 

(I&E Mortality Everywhere), would have a slightly greater impact on national and 

regional electricity markets than Option 2, as more in-scope facilities are required to 
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install cooling towers (nearly all) to meet compliance requirements. Under Option 3, 

capacity loss is nearly the same as under Option 2 – 14,576 MW or 1.3 percent of the 

baseline capacity value – with all regions projected to incur closures. As under Option 2, 

the largest percentage impact under Option 3 occurs in NPCC, with a loss of 

approximately 4.8 percent of the baseline capacity value. Similarly, the impact on 

variable production costs for electricity generation under Option 3 is approximately the 

same as under Option 2 at the national and regional level. At the national level, variable 

production costs increase by 1.0 percent, with the largest increase also occurring in RFC, 

at 2.7 percent; again, only two of the 8 NERC regions – ERCOT and NPCC – record a 

decline of 1.2 percent and 2.7 percent, respectively. The effect on energy prices also 

varies across regions, with RFC recording the largest increase of 0.5 percent and NPCC 

recording the largest decline of 1.7 percent. The impact on total sector pre-tax income 

under Option 3 is also similar to the impact under Option 2; at the national level, pre-tax 

income declines by 7.7 percent with all regions experiencing a loss in pre-tax income.

(2) Impact on In-Scope Facilities

EPA used IPM V3.02 results for 2028 to assess the potential impact of the 

regulatory Options on the subset of electric generating facilities that are estimated to be 

within the scope of today’s proposed regulation compliance requirements. Only results 

for in-scope facilities are considered, though somereported in-scope facilities would not 

actually face compliance costs due to today’s proposal this analysis. 

Exhibit VII-13 reports results for the first three of the regulatory Options 

for in-scope facilities, as a group. Chapter 6 of the EBA presents a more detailed 

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interpretation of the results of the analysis of today’s Proposed Existing Facilities 

Regulation. 

Exhibit VII-13: Impact of Market Model Analysis Options on In-Scope Facilities, at 

the Year 2028 

NERC 

Region 

Baseline 

Capacity 

(MW) 

Incremental Closures Change in 

Variable 

Production Cost 

per MWh 

Capacity 

(MW) 

% of 

Baseline 

Capacity 

Option 1: IM Everywhere 

ERCOT 35,985 -99 -0.3% -0.2%

FRCC 27,210 -11 0.0% 0.0%

MRO 29,131 298 1.0% -0.3%

NPCC 33,618 859 2.6% -1.2%

RFC 138,519 -95 -0.1% 0.1%

SERC 151,806 198 0.1% 0.0%

SPP 23,879 -102 -0.4% -0.2%

WECC 38,906 9 0.0% -0.1%

Total 479,054 1,056 0.2% -0.1%

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD

ERCOT 35,985 5,486 15.2% -4.3%

FRCC 27,210 -336 -1.2% 0.1%

MRO 29,131 969 3.3% 2.6%

NPCC 33,618 4,415 13.1% -8.8%

RFC 138,519 3,329 2.4% 1.9%

SERC 151,806 433 0.3% 2.1%

SPP 23,879 2,285 9.6% -1.2%

WECC 38,906 234 0.6% 0.7%

Total 479,054 16,815 3.5% 0.5%

Option 3: I&E Mortality Everywhere 

ERCOT 35,985 5,528 15.4% -4.9%

FRCC 27,210 -336 -1.2% 0.0%

MRO 29,131 1,016 3.5% 2.7%

NPCC 33,618 4,415 13.1% -9.0%

RFC 138,519 3,329 2.4% 2.0%

SERC 151,806 699 0.5% 2.1%

SPP 23,879 2,259 9.5% -2.3%

WECC 38,906 234 0.6% 0.8%

Total 479,054 17,144 3.6% 0.4%

The market model analysis results for the group of in-scope facilities 

showsshow a greater degree of adverse impact than that observed over all generating 

units:. These more substantial adverse impacts at the level of among the directly affected 

in-scope units would beare offset by generally positive changes in capacity and energy 

production at the facilities not in-scope that are not directly by the proposed rule’s 

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requirements, and which are not included in thethis section’s analysis of this section. 

Looking. 

Under Option 1, today’s preferred option, looking over all in-scope facilities, the total 

capacity loss from closuresearly retirements is X,XXX1,056 MW at the national level, or 

X.X0.2 percent of baseline capacity in the in-scope units. All regions except the XXXX 

and the XXXX record aThe impact on capacity loss. The largest percentage loss occurs 

in the XXXX (X.X percent); the largest absolute loss occurs in the XXXX (X,XXX 

MW).

The X,XXX MWretirements varies across NERC regions with 4 out of 8 

regions recording capacity losses in in-scope facilities reflect a combination of closures 

and the remaining 4 experiencing avoided capacity closures in the universe of in-scope 

facilities. Some closures (or avoided closures) are full facility closures (i.e., all 

generating units at the facility close or avoid closure), while others are partial closures 

(i.e., at least one generating unit at the facility is assessed as closing, or avoiding closure, 

in the post-compliance case). Overall, XX39 generating units close 

(X,XXXapproximately 9,874 MW) and XX30 generating units avoid closure 

(X,XXXapproximately 8,819 MW) in the post-compliance case, resulting in net closure 

of XX9 generating units (which corresponds to the X,XXXapproximately 1,055 MW of 

net closures). ). The XX39 generating unit closures reflect full closure of X20 units at 

Xin 13 facilities (X,XXX5,647 MW) and partial closure of XX19 units at XXin 16

facilities (X,XXX4,227 MW). The largest capacity loss occurs in NPCC (859 MW or 2.6

percent of baseline capacity).

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On closer inspection of these capacity losses, EPA found that all of the generating 

units projected to be retired in 2028 under Option 1 (as compared to the base case) have 

very low or zero capacity utilization in the base case as well, and thus are not significant 

contributors to electricity generation.96 Accordingly, based on this closer inspection of 

the estimated closure effects at in-scope facilities, EPA concludes that the real economic 

loss from capacity closures under the Proposed Option case is not material. EPA also 

notes the total capacity of the electric power industry as projected by the Market Model 

Analysis for the year 2028 is actually greater in the post-compliance case for Option 1 

than under the base case. Accordingly, the closure of this capacity under Option 1 (and 

which corresponds to today’s proposed option) does not constitute a loss in aggregate in 

electric generating capacity and thus also would not pose issues in terms of adverse 

impact on electric generating system supply reliability.

Other assessed effects of Option 1 for the group of in-scope facilities are 

of less consequence. AtAs described in the preceding section, these net losses of capacity 

due to early retirements among in-scope facilities are offset at the total market level by 

capacity increases among other facilities. These capacity increases typically occur 

through “earlier” construction of new generating units or repowering of existing units. 

These new units also typically operate with higher energy efficiency and lower electricity 

production cost. As a result, the early retirements among in-scope facilities under the 

proposed regulatory option have little impact at the level of national and regional 

electricity markets. 

 

96 Most other units with zero capacity utilization rates are identified as “retirements” in the Market Model 

Analysis, and the lack of this designation for these in-scope units may signify a nuance of the “retirement” 

designation in IPM. EPA thus does not believe that the “retirement” of these units is an inevitable 

consequence of this regulation, but more a nuance of the designation of “retirement” for units whose 

operating economics designate them as insignificant performers.
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Finally, at the national level, variable production costs and total generation 

decline by less than one-tenth of one approximately 0.1 percent. These as older, lessefficient plants close and are replaced by newer plants in the IPM model. These effects 

vary by region, with some regions experiencing slight increases in either of the two 

impact metrics, while other regions experience slight decreases. These findings of very 

small national and regional effects in these impact metrics confirm EPA’s assessment, 

stated in the preceding paragraph, that the assessed capacity closures among in-scope 

facilities are of little economic consequence in national and regional electricity markets. 

Again, the findings for the more expensive Option 2 (XXXXXXXXIM 

Everywhere and EM for Facilities with DIF>125MGD) are of greater consequence., as 

some facilities would be required to incur the cost of cooling tower installation. The total 

loss in capacity in 2028 is assessed at XX,XXX16,815 MW, or more than X times the 

loss under Option 1 (XXXXXXXX). The percentage loss in certain regions– XXXX 

(X.X%), XXXX (X.X%), and XXXX (X.X%) – would be increased in relation to with 

the baselinelargest capacity of the totalloss of in-scope units in these regions15.2 percent 

occurring in NPCC. 

In the same way as reported for Option 1, the capacity loss of 

XX,XXX16,815 MW under Option 2 also reflects a combination of closuresearly 

retirements and avoided closures. retirements of generating units. Under this option, 

XXXOption 2, 149 generating units close (XX,XXX36,163 MW) and XX86 generating 

units avoid closure (XX,XXX19,186 MW), leading to an estimated net closure of XX63

generating units (XX,XXX16,977 MW). Out of the XXX149 closed units, XX72 units 

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(XX,XXX22,976 MW) are in XX35 fully closed facilities and XX77 units 

(XX,XXX13,186 MW) are in XX46 partially closed facilities.

In the same way as described above for Option 1, EPA also examined the 

estimated full and partial facility closures under Option 2 to understand whether some of 

the projected closure units operate as low performance units in the baseline and thus do 

not contribute significantly to electricity generation. In this review, EPA again found that 

a large share of the estimated closures occur in generating units that have very low 

capacity utilization in the baseline. Overall, XX percent of the estimated closure capacity 

occurs in very low performance units. These units contribute little electric generation and 

EPA judges that their closure would not constitute a material economic loss. Of the 

remaining XX percent of the closure capacity, approximately XX percent occurs in 

generating units that are forecasted in the Market Model Analysis system baseline to 

undergo repowering, which involves a substantial modification to the unit to alter its 

power generation cycle97 and improves the economics of power production in the 

generating unit. The forecast of this modification is inevitably speculative given the 

complexity of the future repowering decision. If these units were not assigned to 

repower, it is not known what their performance would be in the Market Model Analysis 

system baseline and it is possible that they would also operate as low generating 

performance units. The final 3 percent of closure capacity occurs in generating units that 

otherwise appear to be reasonable economic contributors to electric power generation, but 

which are not able to maintain economically productive operations when faced with the 

 

97 Typically to convert from steam turbine operation to combined cycle operation.
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cost and operating effects (e.g., installation downtime and energy penalty) of cooling 

tower installation.

TheUnder Option 2, the findings for the change in variable production cost 

are also considerably larger. A X.X compared to Option 1. At the national level, Option 

2 results in a 0.5 percent decreaseincrease in variable production cost. The assessed 

decline in variable production cost reflects the capacity closures and reduced overall 

generation (in both closed units and reduced utilization units), which would otherwise 

occur in higher production cost generating units except for the estimated effect of the 

Market Model Analysis. This effect varies considerably by region. The greatest decline, 

with NPCC recording the largest decrease in variable production cost (XX.X% decrease) 

occurs in the XXXX.costs (8.8 percent) and MRO incurring the largest increase (2.6 

percent). 

c.The analysis results for Option 3 are similar to those for Option 2, and again 

show a greater degree of impact on capacity and electricity generation among in-scope 

facilities compared to the degree of impact observed at the market level. At the national 

level, Option 3 results in 17,144 MW of retired capacity (compared to 16,815 MW under 

Option 2), which is approximately 3.6 percent of total baseline in-scope capacity 

(compared to 3.5 percent under Option 2). As is the case for Options 1 and 2, the net 

capacity reduction of 17,144 MW reported for Option 3 includes early retirement and 

avoided retirement of generating units. Under Option 2, 162 generating units close 

(37,255 MW) and 88 generating units avoid closure (20,258 MW), leading to an 

estimated net closure of 74 generating units (16,997 MW). Out of the 162 closed units, 79 

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units (23,262 MW) are in 39 fully closed facilities and 83 units (13,992 MW) are in 50 

partially closed facilities.

The impact on variable production costs observed for Option 3 is similar in 

magnitude to that observed for Option 2. At the national level, variable production costs 

decline by approximately 0.4 percent. Under Option 3, this effect also varies 

considerably by region, with NPCC, again, recording the largest decrease in variable 

production costs (9.0 percent) and MRO incurring the largest increase (2.7 percent).

(3) Impact on Individual In-Scope Facilities 

Results for the group of in-scope facilities as a whole may mask shifts in 

economic performance among individual facilities subject to today’s proposed rule. To 

assess potential facility-level effects, EPA analyzed facility-specific changes between the 

base case and the post-compliance cases for the following metrics: (1) capacity utilization 

(defined as annual generation (MWh) divided by [capacity (MW) times 8,760 hours]) (2) 

electricity generation, (3) revenue, (4) variable production costs per MWh, defined as 

variable O&M cost plus fuel cost divided by net generation, and (5) pre-tax income, 

defined as total revenues minus the sum of fixed and variable O&M costs, fuel costs, and 

capital costs. 

Exhibit VII-14 presents the estimated number of in-scope facilities with 

specific degrees of change in operations and financial performance as a result of today’s 

regulatory options. This exhibit excludes in-scope facilities with estimated significant 

status changes in 2028 that render these metrics of change not meaningful – i.e., under 

the analyzed Option, a facility that is assessed as either a full or partial closure or is 

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assessed as repowering one or more generating units between the base case and the postcompliance case. On this basis, XXX facilities are excluded from assessment under 

Option 1; for Option 2, XXX facilities are excluded from this assessment. As a 

result,This is done because the measures presented in Exhibit VII-11 such as change in 

revenue arewould not be meaningful for these facilities. For example, for a facility that is 

projected to close in the post-compliance case, the reduction in revenue is 100 percent. 

And for a facility that is projected to repower (e.g., switch from a steam-generating to a 

combined-cycle operation), it is not possible to separate the component of change that is 

due to change in level of operation from the regulation, from change that is due to 

reconfiguration of the basic generating facilitywould be 100 percent. On this basis, 118

facilities are excluded from assessment under Option 1, 159 facilities under Option 2, and 

165 facilities under Option 3. 

In addition, the change in variable production cost per MWh of generation 

could not be developed for facilities that have zero generation in either the baseline or 

post-compliance cases. For these facilities, – 28, 21, and 18 facilities under Options 1, 2, 

or 3, respectively – variable production cost per MWh cannot be calculated for one or 

other of the two cases (because the divisor, MWh, is zero), and therefore the change in 

variable production cost per MWh cannot be meaningfully determined. For change in 

variable production cost per MWh, these facilities Facilities excluded from this 

assessment are recorded in the “N/A” column. 

Exhibit VII-14: Impact of Market Model Analysis Options on Individual In-Scope 

Facilities at the Year 2028 -- Number of Facilities by Impact Magnitude 

Economic Measures Reduction 

Increase

No 

Change No ChangeIncrease N/Ab Formatted Table

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</=1> 

3% 1-3% 

> 

3</=1

% </=1%

</=1-

3% 

> 1-

3% > 3%

Option 1: IM Everywhere 

Change in Capacity 

Utilizationa 0 1 23 398 41 5 3 118

Change in Generation 6 7 39 391 26 0 2 118

Change in Revenue 5 3 164 4 282 13 0 118

Change in Variable 

Production Costs/MWh 0 2 91 22 319 6 3 146

Change in Pre-Tax Income 40 126 243 0 55 4 3 118

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

Change in Capacity 

Utilizationa 13 18 102 147 104 24 22 159

Change in Generation 154 89 6 146 8 12 15 159

Change in Revenue 139 103 51 0 73 54 10 159

Change in Variable 

Production Costs/MWh 3 5 24 14 107 55 201 180

Change in Pre-Tax Income 267 33 55 0 28 23 24 159

Option 3: I&E Mortality Everywhere 

Change in Capacity 

Utilizationa 10 16 132 96 118 25 27 165

Change in Generation 184 110 6 95 9 10 10 165

Change in Revenue 158 127 44 0 49 38 8 165

Change in Variable 

Production Costs/MWh 4 8 15 9 74 63 233 183

Change in Pre-Tax Income 315 12 41 0 24 11 21 165

a. The change in capacity utilization is the difference between the capacity utilization percentages in the base case and 

post-compliance cases. For all other measures, the change is expressed as the percentage change between the base case 

and post-compliance values. 

b. Facilities with status changes in either base case or post-compliance scenario have been excluded from these 

calculations. In addition, the change in variable production cost per MWh could not be developed for XX28, 21, and 18

facilities with zero generation in either base case or XXX post-compliance scenario and XX facilities with zero generation 

in either base caseOptions 1, 2, or XXX post-compliance scenario. CUR values could not be developed for XX facilities 

with no steam capacity in base case and3 post-compliance scenarios, respectively.

For Option 1, which corresponds to EPA’s proposed option, the analysis 

of changes in individual facilities indicates that most facilities experience very slight 

effects – no change, or less than a one1 percent reduction or one1 percent increase – in all 

of the impact metrics except Change Inin Pre-Tax Income. Only XXX facilities are1

facility is estimated to incur a reduction in capacity utilization exceeding one1 percent; 

XXX13 facilities incur a reduction in generation exceeding one1 percent; and XXX8

facilities incur a reduction in revenue exceeding one1 percent. Only XX9 facilities incur 

an increase in variable production costs exceeding one percent. The estimated change in 

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pre-tax income is more consequential as XXX126 facilities are projected to incur 

reductions in pre-tax income of 1-3 percent and XXX40 facilities are projected to incur 

reductions in pre-tax income exceeding 3 percent of the baseline value.

As in the preceding analyses, the The findings for Option 2 (XXX) are 

againsubstantially more consequential. In particular, XXX compared to those estimated 

for Option 1. For 243 facilities are estimated to incur a greater than one percent , the 

reduction in generation, XXX facilities are is estimated to incur a greater than oneexceed 

1 percent; for 242 facilities, the reduction in revenue, and XXX facilities are is estimated 

to incur a greater than oneexceed 1 percent; for 256 facilities, the increase in variable 

production costs is estimated to exceed 1 percent. Again, the change in pre-tax income is 

more substantial, with 33 facilities expected to incur reductions in pre-tax income of 1-3 

percent and 267 facilities, greater than 3 percent.

As in the preceding discussions, the findings for Option 3 are slightly more 

consequential than those estimated for Option 2. For 294 facilities, the reduction in pretax incomegeneration is estimated to exceed 1 percent; for 285 facilities, the reduction in 

revenue is estimated to exceed 1 percent; for 296 facilities, the increase in variable 

production costs is estimated to exceed 1 percent. The change in pre-tax income is more

substantial, with 12 facilities expected to incur reductions in pre-tax income of 1-3 

percent and 315 facilities, greater than 3 percent. 

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b. Analysis Results for the Years 2015, 2020, and 2025 – To Capture the Effect of 

Installation Downtime

This section presents market-level results for today’s proposed rule options for 

model run years 2015, 2020, and 2025. As discussed above, run year 2015 captures the 

period when in-scope facilities install IM technologies, while run years 2020 and 2025 

capture the period when fossil fuel and nuclear facilities install cooling towers, 

respectively, and may incur installation downtime. Of particular importance as a potential 

impact, the additional unit downtime from installation of compliance technology would 

manifest as increased electricity production costs resulting from the dispatch of higher 

production cost generating units during the periods when units are taken offline to install 

compliance technologies. Because these effects are of most concern in terms of potential 

impact on national and regional electricity markets, this section presents results only for 

the total set of facilities analyzed in IPM (Exhibit VII-15) and does not present results for 

the subset of only in-scope facilities. 

For the assessment of compliance technology installation downtime impacts at the 

national level, EPA considered five output metrics from IPM V3.02: (1) changes in 

electricity generation, (2) changes in revenue, (3) cost changes, including changes in fuel 

costs, variable O&M costs, fixed O&M costs, and capital costs, (4) changes in pre-tax 

income, and (5) changes in variable production costs per MWh. For each measure of 

concern, Exhibit VII-15 presents the results for the base case and the existing facilities 

rule options for each downtime year, i.e., 2015, 2020, and 2025 and the percentage 

difference between the two. This section of the preamble discusses downtime impact at 

the national level only; for regional-level results see Appendix 6.A of EBA report.
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Exhibit VII-15: Impact of Market Model Analysis Options During the Period of 

Installation Downtime 

Economic Measures 

(all dollar values in $2009) Baseline Value

Option 1 Option 2 Option 3

Value

% 

Change Value

% 

Change Value

% 

Change

2015 (2013-2017)

Generation (TWh) 4,320 4,320 0.0% 4,320 0.0% 4,320 0.0%

Revenue ($Millions) $212,857 $212,883 0.0% $214,124 0.6% $214,201 0.6%

Costs ($Millions) $144,212 $144,764 0.4% $144,251 0.0% $144,244 0.0%

 Fuel Cost $81,076 $81,080 0.0% $80,896 -0.2% $80,895 -0.2%

 Variable O&M $12,034 $12,080 0.4% $12,056 0.2% $12,054 0.2%

 Fixed O&M $43,697 $44,140 1.0% $43,683 0.0% $43,680 0.0%

 Capital Cost $7,405 $7,463 0.8% $7,616 2.8% $7,614 2.8%

Pre-Tax Income ($Millions) $68,646 $68,119 -0.8% $69,873 1.8% $69,957 1.9%

Variable Production Cost 

($/MWh) $21.55 $21.57 0.1% $21.52 -0.2% $21.52 -0.2%

2020 (2018-2022)

Generation (TWh) 4,530 4,530 0.0% 4,530 0.0%

Revenue ($Millions) $261,531 $270,507 3.4% $270,709 3.5%

Costs ($Millions) $160,340 $167,450 4.4% $167,719 4.6%

 Fuel Cost $83,418 $82,295 -1.3% $82,295 -1.3%

 Variable O&M $13,349 $13,661 2.3% $13,673 2.4%

 Fixed O&M $46,160 $50,888 10.2% $51,016 10.5%

 Capital Cost $17,413 $20,605 18.3% $20,736 19.1%

Pre-Tax Income ($Millions) $101,191 $103,057 1.8% $102,990 1.8%

Variable Production Cost 

($/MWh) $21.36 $21.18 -0.8% $21.18 -0.8%

2025 (2023-2027)

Generation (TWh) 4,746 4,746 0.0% 4,746 0.0%

Revenue ($Millions) $280,613 $282,363 0.6% $282,381 0.6%

Costs ($Millions) $174,856 $184,900 5.7% $185,148 5.9%

 Fuel Cost $86,633 $86,812 0.2% $86,834 0.2%

 Variable O&M $13,907 $14,295 2.8% $14,299 2.8%

 Fixed O&M $47,561 $53,500 12.5% $53,625 12.7%

 Capital Cost $26,755 $30,294 13.2% $30,390 13.6%

Pre-Tax Income ($Millions) $105,757 $97,463 -7.8% $97,233 -8.1%

Variable Production Cost 

($/MWh) $21.18 $21.30 0.6% $21.31 0.6%

Because in-scope facilities would be required to meet compliance requirements 

not later than 5 years following rule promulgation, Option 1 has downtime effects during 

only the five-year period of 2013-2017. Results for the year 2015 are indicative of annual 

effects during each of these years. With few facilities having an increase in net downtime 

under Option 1, the estimated effects of downtime are relatively minor. Variable 

production costs increase by less than 0.1 percent. Another potential market level impact 
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due to the incurrence of downtime is the possible increase in electricity prices and, 

consequently, revenue. At the market level, the change in total revenue is nearly zero, 

indicating very small overall effects on consumer prices. While these effects vary at the 

regional level, these effects are overall very small (see Appendix 6.A of the EBA).

Unlike Option 1, Option 2 would be expected to have downtime effects during 

each of the three five-year periods, as IM-only facilities comply during the first five years 

(2012-2017) following rule promulgation, fossil fuel facilities installing cooling tower 

technology comply during the second five years (2018-2022), and nuclear facilities 

installing cooling tower technology comply during the third five years (2023-2027).

During the first five-year period (2012-2017), downtime effects under Option 2, 

although larger than those under Option 1, remain small. Variable production costs 

decline by a very minor amount, 0.2 percent, as the market begins to adjust overall in 

anticipation of the larger effects on capacity availability as the result of cooling tower 

installation in later years. Total market-level revenue increases by $1.2 billion, or 0.6 

percent, indicating small effects on consumer prices. 

During the second five-year period (2018-2022), downtime effects are more 

pronounced under Option 2. At the market level, variable production costs decline again, 

by 0.8 percent, but revenue increases by nearly $9.0 billion, or 3.4 percent. Thus, the 

impact on consumer prices is greater during this period than during the preceding five 

years. Again, the reduction in variable production costs and revenue reflect replacement 

of generation from older, less efficient and higher fuel cost capacity, with generation 

from more energy efficient, lower production cost capacity.
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The greatest impact on variable production cost under Option 2 occurs during the 

third five-year period (2023-2027), when nuclear facilities incur downtime during 

technology installation. Net downtime for cooling tower installation at nuclear facilities is 

estimated at 24 weeks compared to 0.3 - 4 weeks for installations at fossil fuel facilities. 

During this period, variable production costs increase by $0.12 per MWh or 

approximately 0.6 percent. Although variable production cost increases during this period 

(while declining during the preceding two five-year periods), annual revenue increases by 

a smaller amount, $1.8 billion, or a 0.6 percent increase above baseline. The smaller 

increase in revenue, and by inference in consumer prices, results from the ongoing 

market adjustment with replacement of less efficient, higher fuel cost generation with 

more efficient, lower fuel cost capacity. The effects at the national level vary at the 

regional level (see Appendix 6.A of the EBA). 

Like Option 2, Option 3 would be expected to have downtime effects during each 

of the three five-year periods. During the first five-year period (2012-2017), impacts are 

nearly identical to those of Option 2 at the national and regional level. At the national 

level, variable production costs decline by 0.2 percent, and total revenue increases by 

$1.2 billion, or 0.6 percent, indicating small effects on consumer prices. While under 

Option 2, revenue declines by 0.2 percent, under Option 3 it increases by 0.5 percent. 

Further, under Option 3, the decline in variable production costs as well as the drop in 

electricity prices are slightly more significant. 

During the second five-year period (2018-2022), downtime effects of Option 3 are 

again similar to, but slightly higher than, those of Option 2. At the national level, variable 

production costs decline by 0.8 percent, while revenue increases by $9.2 billion, or 3.4 
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percent. Again, the impact on consumer prices under Option 3 is greater during this 

period than during the preceding five years. 

As with Option 2, under Option 3 the greatest impact on variable production cost 

occurs during the third five-year period (2023-2027). During this period, market-level 

variable production costs increase by $0.13 per MWh or approximately 0.6 percent. 

Although variable production cost increases during this period (while declining during 

the preceding two five-year periods), annual revenue increases by a smaller amount, $1.8 

billion, or a 0.6 percent increase above baseline. 

At the regional level, as is the case for Option 2, under Option 3, these effects 

vary across regions. For all three analyzed five-year periods, the direction of the change 

in variable production costs, revenue, and electricity prices under Option 3 is the same as 

that under Option 2 for all NERC regions; the difference in the magnitude of change is 

not very pronounced either (see Appendix 6.A of the EBA).

5. Summary of Economic Impacts 

[To be continued pending January/February IPM results]

EPA performed cost and economic impact assessment in two parts. The first set of cost 

and economic impact analyses – entity level impacts (at both the facility and parent 

company levels), an assessment of the potential electricity rate impact of compliance 

costs to the residential sector, and across sectors – reflects baseline operating 

characteristics of in-scope facilities and assumes no changes in those baseline operating 

characteristics – e.g., level of electricity generation and revenue – as a result of the 

requirements of the proposed regulatory options. The second set of analyses look at 
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broader electricity market impacts – taking into account the interconnection of regional 

and national electricity markets, for the full industry, for in-scope facilities only, and as 

the distribution of impacts at the facility level. No single metric or impact level 

definitively measures economic impacts. Rather, EPA has considered the totality of these 

measures of economic impacts in concluding that there are no significant economic 

impacts associated with Option 1 (the preferred option) or Option 4, while there are 

considerably greater economic impacts associated with Options 2 and 3.

VIII. Benefits Analysis

A. Introduction

This section presents EPA's estimates of the national environmental benefits of 

the options analyzed for 316(b) facilities. In this section, EPA describes how it 

calculated values for those benefits it could monetize. It also presents descriptive 

information for those benefits for which it could not develop a monetary value. The 

benefits assessed occur because of reductions in impingement, where fish and other 

aquatic life are trapped on equipment at the entrance to the CWIS, and entrainment, 

where aquatic organisms, eggs, and larvae are taken into the cooling system, passed 

through the heat exchanger, and then discharged back into the source water body, (I&E 

mortality) at cooling water intake structures (CWIS) affected by the proposed 

rulemaking. I&E mortality kills or injures large numbers of aquatic organisms at all life 

stages. Based on impingement mortality and entrainment data presented in I&E mortality 

facility studies, EPA assumes a mortality rate of 100% for both impinged and entrained 

individuals. Mortality rates are then adjusted based on the efficiency of technology in 
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place.98 By reducing I&E mortality rates, the proposed options are likely to increase the 

number of fish, shellfish, and other aquatic organisms in affected water bodies. In turn, 

this increased number of aquatic organisms directly improves welfare for individuals 

using the affected aquatic resources, generating so-called “use benefits” such as increases 

to the value of recreational and commercial fisheries. Reductions to I&E mortality also 

improve welfare for individuals absent any use of the affected resources, so-called 

“nonuse benefits,” such as improved ecosystem function and resource bequest values. 

Section VIII.D provides an overview of the types and sources of benefits anticipated, 

how these benefits are estimated, the level of benefits that the proposed options would 

achieve, and how monetized benefits compare to costs. 

EPA derived national benefit estimates for the proposed options from a series of 

regional studies representing a range of water body types and aquatic resources. Section 

VIII.B provides detail on the regional study design. Sections VIII.C through VIII.E 

briefly describe the methods EPA used to evaluate I&E mortality impacts at Section 

316(b) facilities, and to derive an economic value associated with these losses. Further, 

EPA attempted to estimate reductions in I&E mortality attributable to repowered units. 

EPA assumed repowered units projected by IPM did not change in capacity and flow, and 

therefore analyzed repowered units in the benefits estimates. because IPM does not 

predict where new capacity occurs, only where repowering occurs, and EPA has not 

identified any other information projecting where new units would be located. Therefore, 

EPA did not estimate benefits associated with new capacity (i.e. new units at an existing 

facility). As noted above, EPA also did not include costs for these new units in its social 

 

98 See discussion in Section III on entrainment mortality data and assumptions.
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cost analysis. This is consistent with EPA’s treatment of new facilities, such as new 

offshore oil and gas facilities in the Phase III rule. 

The methodologies used to estimate benefits of proposed options are largely built 

upon those used to estimate benefits for the suspended Phase II regulation and the 

remanded rule for 316(b) Phase III existing facilities. In addition to updating these 

analyses, EPA more fully investigated the effects of I&E mortality on threatened and 

endangered (T&E) species, and improved its estimation of nonuse benefits, and assessed 

the ecological and economic benefit of reduced thermal discharges that accompany the 

proposed options.. The 2011 Environmental and Economic Benefits Analysis document 

for the proposed 316(b) Existing Facility rule (hereafter EEBA) provides detailed 

descriptions of the these new methodologies used to analyze the benefits of proposed 

regulatory options, and provides references to i) Part A of the 2004 Regional Benefits 

Analysis for the suspended Final Section 316(b) Phase II Rule, and ii) Part A of the 2006 

Regional Benefits Analysis Document for the Final Section 316(b) Phase III Existing 

Facilities Rule for analyses using similar methodologies. 

The EEBA document provides EPA's benefit estimates for the proposed options. 

EPA relied on information on cooling water systems and intake structures already in 

place collected in the Section 316(b) Industry Surveys (the Industry Screener 

Questionnaire (SQ) and the Detailed Industry Questionnaire (DQ)) to estimate the 

number of manufacturing facilities that would potentially be in-scope of the regulatory 

options considered for the Proposed Existing Facilities Rule. Because the DQs were sent 

to a sample of the manufacturing industries that use cooling water, the respondents were 

assigned sample weights designed to represent other facilities that were not covered in 
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the survey. For the analysis of in-scope Electric Generators, EPA used information on 

cooling water systems and intake structures already in place, from 656 in-scope facilities 

that responded to the 2000 Section 316(b) Surveys (the Industry Short Technical 

Questionnaire (STQ) and the Detailed Industry Questionnaire (DQ)). All in-scope 

facilities have design intake flow of at least 2 million gallons per day (MGD). Regional 

benefits are estimated from the sample of facilities for which there is sufficient DQ 

information to estimate the environmental impacts of regulatory options. The 

environmental impacts from the set of explicitly analyzed facilities are then extrapolated 

to the universe of facilities within a region using statistical weights developed for this 

analysis. National benefits are estimated as the sum of all regional benefits. 

B. Regional Study Design

EPA evaluated the benefits of today’s rule in seven study regions (California,99

North Atlantic, Mid Atlantic, South Atlantic, Gulf of Mexico, Great Lakes, and Inland). 

Regions were defined based on ecological similarities within regions (e.g. similar 

communities of aquatic species), and on characteristics of commercial and recreational 

fishing activities. The five coastal regions identified (California, North Atlantic, MidAtlantic, South Atlantic, and Gulf of Mexico) correspond to those of the National 

Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS). 

The Great Lakes region includes Lake Ontario, Lake Erie, Lake Huron (including Lake 

St. Clair), Lake Michigan, Lake Superior, and the connecting channels (Saint Mary’s 

River, Saint Clair River, Detroit River, Niagara River, and Saint Lawrence River to the 

 

99 The California region includes manufacturing facilities in the state of California and four facilities in 

Hawaii. It excludes coastal electric generating facilities in the state of California due to state regulation of 

cooling water intakes for these facilities. There are no coastal facilities in Oregon and a single facility in 

Washington classified as a baseline closure.
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Canadian border) as defined in 33 USC 1268, Sec. 118(a)(3)(b). The Inland region 

includes all remaining facilities that withdraw water from freshwater lakes, rivers, and 

reservoirs. Notably, of the 521 facilities that are located on freshwater streams or rivers, 

31 percent (164) of these facilities have average intake greater than 5 percent of the mean 

annual flow of the source waters. During periods of low river flow, or during periods of 

higher than average withdrawals of cooling water, the proportionate withdrawal of source 

waters may be much higher. Thus, the potential for adverse environmental impacts may 

increase. The number and total operational intake flow of all 316(b) facilities by study 

region is presented in Error! Reference source not found.. 

Exhibit VIII-1: Number of Facilities and Total Mean Operational Flow (BGD), by 

Region. 

Region Number of Potentially 

Regulated Facilitiesa

Once-Through 

Flow 

Closed-Cycle 

Flow 

Total Flow 

Californiab 8 1.2 0.0 1.2

Great Lakes 67 18.8 0.2 19.0 

Inlandc 669 134.9 3.9 138.8 

Mid-Atlantic 54 28.1 0.1 28.2

Gulf of Mexico 30 12.9 0.0 12.9 

North Atlantic 26 7.0 0.0 7.0 

South Atlantic 17 7.4 <0.1 7.5

All Regions 871 210.3 4.2 214.5 a

 This table presents the unweighted number of facilities because weighted facilities counts are 

not estimated separately by benefits region. The estimated total weighted number of potentially 

regulated facilities is 1152 (including baseline closures). b Includes four potentially regulated facilities in Hawaii.

b

 The California region includes manufacturing facilities in the state of California and four facilities in 

Hawaii. It excludes coastal electric generating facilities in the state of California due to state regulation 

of cooling water intakes for these facilities. There are no coastal facilities in Oregon and a single facility 

in Washington classified as a baseline closure.

c

 A facility in Texas has intakes located in both the Inland and Gulf of Mexico regions. It is included 

within the Inland region in the current table to prevent double-counting. 

To obtain estimates ofestimate regional I&E mortality, EPA extrapolated losses 

observed atloss data from 97 facilities withthat conducted I&E mortality studies (model 

facilities) to all in-scope facilities within the same region. EPA judged these 97 studies

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include the most representative studies with the best available data. EPA used regions to 

account for differences in ecosystems, aquatic species, and characteristics of commercial 

and recreational fishing activities. Extrapolation was conducted on the basis of actual 

intake flow reported for the period 1996-1998 by facilities in response to EPA’s Section 

316(b) Detailed Questionnaire and Short Technical Questionnaire. Chapter 3 of the 

EEBA document provides details of the extrapolation procedure. Because the goal of the 

analysis was to provide estimates of I&E mortality losses at regional and national scales, 

EPA recognizes that there may be substantial variability in the number of actual losses 

(and benefits) of individual facilities. However, EPA concludes that extrapolation is a 

reasonable basis for developing estimates of regional- and national-level benefits for the 

purposes of this proposed rulemaking. 

C. Physical Impacts of I&E Mortality

 EPA’s benefits analysis is based on facility-provided I&E mortality monitoring 

data. Facility data consist of records of impinged and entrained organisms sampled at 

intake structures and cover organisms of all ages and life stages. Sampling protocols 

were not standardized across facilities. Differences among facility protocols included 

sampling methods and equipment used, the number of samples taken, sampling duration, 

and the unit of time and volume of intake flow used to express I&E mortality losses. To 

standardize estimates across facilities, EPA converted sampling counts into annual I&E 

mortality losses. Using standard fishery modeling techniques,100 EPA constructed 

 

100 Ricker, W.E. 1975. Computation and interpretation of biological statistics of fish populations. Fisheries 

Research Board of Canada, Bulletin 191; Hilborn, R. and C.J. Walters. 1992. Quantitative Fisheries Stock 

Assessment, Choice, Dynamics and Uncertainty. Chapman and Hall, London and New York.; Quinn, T.J., 

II. and R.B. Deriso. 1999. Quantitative Fish Dynamics. Oxford University Press, Oxford and New York; 

Dixon, D.A. 1999. Catalog of Assessment Methods for Evaluating the Effects of Power Plant Operations 

on Aquatic Communities. Final Report. Report number TR_112013. 
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models that combined facility-derived I&E mortality counts with life history data from 

the scientific literature to derive annual estimates of: 

• Age-one equivalent losses (A1Es)—the number of individuals of different 

ages impinged and entrained by facility intakes, standardized to equivalent 

numbers of 1-year old fish. A conversion rate between all life history 

stages and age 1 is calculated using species-specific survival tables. The 

loss of an individual younger than age 1 results in a conversion rate less 

than 1 while the loss of an individual older than age 1 results in a 

conversion rate greater than 1. 

• Foregone fishery yield—pounds of commercial harvest and numbers of 

recreational fish and shellfish that are not harvested due to I&E mortality. 

EPA used the Thompson-Bell equilibrium yield model (Ricker, 1975) to 

convert I&E mortality losses to forgone fishery yield assuming that

assumed that (1) I&E mortality losses reduce the future yield of harvested 

adults, and (2) reductions in I&E mortality rates will lead to an increase in 

harvested biomass. The general procedure involves multiplying agespecific harvest rates by age-specific weights to calculate an age-specific 

expected yield. 

• Biomass Production Foregone—biomass that would have been produced 

had individuals not been impinged or entrained (Rago, 1984), calculated 

for all forage species from species- and age-specific growth rates and 

survival probabilities. It refers to the weight of impinged and entrained 

forage species that are not commercial or recreational fishery targets but 

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serve as valuable components of aquatic food webs, particularly as an 

important food supply to other aquatic species, including commercial and 

recreational species. 

Estimates of foregone fishery yield include direct and indirect losses of impinged 

and entrained species that are harvested. Indirect losses represent the yield of harvested 

species lost due to reductions in prey availability based on a simple trophic transfer 

model (i.e. forage species).101 A detailed methodology for these analyses is provided in 

Chapter 3 of the EEBA document. 

 Studies from individual facilities may under or overestimate I&E mortality rates. 

For example, facility studies typically focus on a subset of fish species impacted by I&E 

mortality, resulting in some species being ignored, and thereby number of individuals lost 

to I&E mortality being underestimated. Due to the low number of replicate studies, 

estimating the magnitude of this underestimate is not possible. Moreover, studies often do 

not count early life stages of organisms that are difficult to identify. In addition, many of 

the I&E mortality studies used by the Agency were conducted over 30 years ago, prior to 

the improvement to aquatic conditions that have resulted from implementation of the 

Clean Water Act. In locations where water quality was degraded at the time of I&E 

mortality sampling relative to current conditions, the abundance and diversity of fish 

populations may have been depressed, resulting in low I&E mortality estimates. 

Therefore, use of these data may underestimate the magnitude of current I&E mortality 

losses. Alternatively, studies may have occurred in locations where local fish populations 

are currently lower than they were when the study occurred. Such a shift in fish 

 

101 Indirect losses account for about 9 percent of commercial and recreational harvest reductions at baseline.
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populations may have occurred due to natural variability in populations, because of other 

anthropogenic effects (i.e., pollution, over-harvesting, etc.), or because of competition 

from invasive species. In such cases, the use of these data may overestimate the 

magnitude of current I&E mortality losses.

The use of linear methods for projecting losses to fish and shellfish in the 

waterbody may also overstate or understate impacts. Nevertheless, EPA believes that the 

data from facility studies were sufficient to estimate the relative magnitude of I&E 

mortality losses nationwide. Error! Reference source not found. presents EPA’s 

stimates of baseline annual I&E mortality losses, and reductions to annual I&E mortality 

losses estimated to occur under various regulatory options. Option 3 results in the 

greatest reduction in I&E mortality, followed by Option 2 and Option 1, respectively,

Option 1, and Option 4, respectively. EPA did not model the entrainment reductions for 

Option 1 and Option 4 because these are based on site-specific determinations of BTA, 

which are impossible to predict. While EPA does estimate potential ranges of costs for 

these site-specific determinations in section VII (though not as part of the primary cost 

estimates), EPA cannot estimate comparable ranges of monetized benefits because 

benefits are location specific and EPA has no way of predicting what entrainment 

technology would be adopted at any specific facility. However, EPA believes the 

entrainment reductions resulting from site-specific BTA determinations could be 

significant, depending on the technologies adopted. 

Exhibit VIII-2 —Baseline I&E mortality Losses and Reductions for All In-scope 

Facilities by Regulatory Option 

Loss Mode Baseline Reduction in Losses by Regulatory Option

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IM&EMI&E

Losses

Option 1 Option 2 Option 3 Option 

4

Individuals (millions)

IM 517.46 460.07421.62 501.05500.44 504.14 413.70

EM 527,968.21 0.00 400,722.40351.83 407,417.58 0.00

IM&EMI&E 

Mortality

528,485.67 460.07421.62 401,223.44400,852.27 407,921.72 413.70

Age-One Equivalents (millions) 

IM 747.40 669.24614.97 723.47722.53 728.35 602.42

EM 1,441.52 0.00 1,260.28259.02 1,285.20 0.00

IM&EMI&E

Mortality

2,188.92 669.24614.97 1,983.75981.55 2,013.55 602.42

ForegoneForgone Fishery Yield (million lbs) 

IM 15.21 13.2811.99 14.8886 14.93 11.86

EM 56.30 0.00 43.6866 44.31 0.00

IM&EMI&E

Mortality

71.50 13.2811.99 58.5652 59.24 11.86

Production ForegoneForgone (million lbs) 

IM 152.71 137.62126.44 148.2909 149.32 123.81

EM 485.07 0.00 393.8639 406.88 0.00

IM&EMI&E

Mortality

637.78 137.62126.44 542.15541.48 556.20 123.81

Scenarios: Option 1 = IM limitations based on modified traveling screens for all facilities with flow greater 

than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for 

facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified 

traveling screens for all facilities with flow greater than 2 MGD; Option 3 = Intake flow commensurate with 

closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 MGD.; Option 4 = IM limitations based on modified traveling screens for all 

facilities with flow greater than 50 million gallons per day (MGD).

Error! Reference source not found. presents EPA’s estimates of annual I&E 

ortality losses by option and by fish category. Estimates of annual forgone fishery yield 

include both direct losses to harvested species as well as indirect losses due to reductions 

in forageprey fish species. Because the vast majority of the biomass moving through 

food webs is lost due to low trophic transfer efficiency, (i.e., does not reach the higher 

trophic levels with direct use value to humans), the portion of I&E mortality losses with 

direct human use values (i.e., those that contribute to forgone harvest) represent only a 

small percentage of all organisms suffering I&E mortality losses at CWIS. Neither 

forage species nor the unlanded portion of recreational and commercial species were 

assigned direct use values in this analysis., though losses in forage species did contribute 

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to the overall losses in recreational and commercial species as noted above. Because the 

majority of annual I&E mortality losses include unharvested recreational and commercial 

fish and forage fish, considering nonuse values in the final Section 316(b) rule benefits 

analysis is particularly important. 

Exhibit VIII-3: Distribution of Annual Baseline I&E mortality Losses and 

Reductions by Species Category and Regulatory Option, for Absolute Losses and 

Age-1 Equivalents. 

IM&EMI&E Loss Metric

Baseline 

IM&EMI&

E Losses

Reduction in Losses by Regulatory Option

Option 1 Option 2

Option 

3

Optio

n 4

Individuals (millions) 

All Species 528,485.67 

460.07421.

62

401,223.44400,852

.27

407,921.7

2 413.70

Forage Species 360,431.51 

334.40307.

89 278,947.14690.45

283,584.8

0 301.21

Commercial & Recreational Species 168,054.16 

125.67113.

73 122,276.30161.82

124,336.9

1 111.49

Commercial & Recreational Harvest 59.41 17.3615.66 53.3328 54.05 15.51

Lost Individuals with Direct Use Value 

(%) 0.01 3.7771 0.01 0.01 3.75

Age-One Equivalents (millions) 

All Species 2,188.92 

669.24614.

97 1,983.75981.55 2,013.55 602.42

Forage Species 1,654.78 

570.75525.

66 1,514.39512.64 1,535.44 514.11

Commercial & Recreational Species 534.15 98.4989.31 469.36468.91 478.11 88.31

Commercial & Recreational Harvest 

(million fish) 59.41 17.3615.66 53.3328 54.05 15.51

A1E Losses with Direct Use Value (%) 2.71 2.5955 2.69 2.68 2.57

Scenarios: Option 1 = IM limitations based on modified traveling screens for all facilities with flow greater than 2 

million gallons per day (MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that 

have a design intake flow of greater than 2 MGD and IM limitations based on modified traveling screens for all 

facilities with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all 

facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 2 MGD.; 

Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50 million 

gallons per day (MGD).

D. National Benefits of Today’s Considered Options

1. Overview 

Economic benefits of the proposed options for in-scope facilities can be broadly 

defined into use and nonuse benefit categories of goods and services. 

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Use values include benefits that pertain to the use (direct or indirect) of affected 

fishery resources. Use value reflects the value of all current direct and indirect uses of a 

good or service. Direct use benefits can be further categorized according to whether or 

not affected goods and services are traded in the market (e.g. commercially-captured fish 

are traded, recreational catch is not). Likewise, indirect use benefits can be linked to 

either market or nonmarket goods and services. For example, reductions to I&E 

mortality losses of forage fish will enhance the biomass of species targeted for 

commercial (market) and recreational (nonmarket) uses. 

Nonuse benefits are those benefits that are independent of any current or 

anticipated use of a resource. Nonuse benefits reflect human values associated with 

existence and bequest motives. 

EPA estimated the economic benefits from national regulatory options using a 

range of valuation methods. Commercial fishery benefits were valued using market data. 

Recreational angling benefits were valued using a benefits transfer approach. To 

estimate indirect use benefits from reduced I&E mortality losses to forage species, EPA 

used a simple trophic transfer model. This model translated changes in I&E mortality 

losses of forage fish into changes in the harvest of commercial and recreational species. 

All benefits for fish saved under today’s proposed rule are estimates are based on 

projected numbers of age-one equivalent fish saved under today’s proposed rule, 

converted to harvestable age equivalents on a species-by-species basis for those 

commercial species analyzed. 

EPA calculated the monetary value of use benefits of the national categorical 

regulatory options for existing facilities using two discount rate values: 3% and 7%. All 
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dollar values presented are in 2009$. Because avoided fish deaths occur mainly in fish 

that are younger than harvestable age (eggs, larvae, and juveniles), the benefits from 

avoided I&E mortality would be realized typically 3-4 years after their avoided death. A 

detailed description of the approaches used to address this can be found in Appendix C of 

the EEBA. 

Neither forage species nor the unlanded portion of recreational and commercial 

were assigned direct use values in this analysis. Their potential value to the public is 

derived from several alternative sources: their indirect use as both food and breeding 

population for those fish that are harvested, the willingness of individuals to pay for the 

protection of fish based on a sense of altruism, stewardship, bequest, or vicarious 

consumption, and their support of ecosystem stability and function (nonuse benefits). To 

estimate a subset of nonuse benefits from reducing losses to forage species, and landed 

and unlanded commercial and recreational species, EPA explored benefits transfer from 

nonmarket valuation studies of nonuse values of aquatic ecosystem improvements. These 

efforts generated partial estimates of nonuse values for resource changes expected to 

result in the North Atlantic and Mid-Atlantic benefits regions from the proposed options, 

but EPA was unable to estimate reliable nonuse valuations for changes expected to result 

in other study regions. EPA is in the process of developing a stated preference survey to 

estimate total willingness to pay (WTP) for improvements to fishery resources affected 

by I&E mortality from in-scope 316(b) facilities (75 FR 42,438). However EPA did not 

have sufficient time to fully develop and implement this survey for the proposed 

regulation. EPA will issue a Notice of Data Availability pending completing survey 

implementation and data analysis. As a consequence of the challenges associated with 
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estimating nonuse benefits, some non-monetized benefits are described only qualitatively 

or quantitatively. 

2. Timing of Benefits 

Discounting refers to the economic conversion of future benefits and costs to their 

present values, thereby accounting for the fact that individuals value future outcomes less 

than comparable near-term outcomes. Discounting enables a valid comparison of 

benefits and costs that occur across different time periods. For the analysis of the 

proposed options, monetized benefits are calculated in a manner that makes the timing 

comparable to the annualized cost estimates. The benefits of the proposed options are 

estimated as the typical benefits expected once the rule takes effect. The need to discount 

arises from two different delays in the realization of benefits. 

First, facilities will not always achieve compliance in the same year that costs are 

incurred. Facilities will face regulatory requirements once the rule takes effect, but it will 

take time to make the required changes. It is assumed that facilities installing 

impingement technology will achieve compliance sooner than facilities installing cooling 

towers. Facilities installing only impingement technology are assumed to have an average 

compliance year of 2015, non-nuclear electric generating facilities installing towers have 

an average compliance year of 2020, and nuclear electric generating facilities and 

manufacturing facilities installing towers have an average compliance year of 2025. To 

account for the lag between the incurrence of costs and the realization of benefits, 

benefits are discounted to a greater extent compared to the costs. 

Second, an additional time lag will result between technology implementation and 

increased fishery yields. This lag occurs because several years may pass between the 
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time an organism is spared from I&E mortality and the time of its potential harvest. For 

example, a larval fish spared from entrainment (in effect, at age 0) may be caught by a 

recreational angler at age 3, meaning that a 3-year time lag arises between the incurred 

technology cost and the realization of the estimated recreational benefit. Likewise, if a 1-

year-old fish is spared from impingement and is then harvested by a commercial 

waterman at age 2, there is a 1-year lag between the incurred cost and the subsequent 

commercial fishery benefit. To account for this growth period, EPA applied discounting 

by species groups in each regional study. 

3. Recreational Fishing Valuation 

a. Recreational Fishery Methods 

To estimate recreational benefits of the proposed options, EPA developed a 

benefits transfer approach based on a meta-analysis of recreational fishing valuation 

studies designed to measure the various factors that determine willingness to pay for 

catching an additional fish per trip. Regional benefits are summarized as follows (see 

Chapter 7 of the EEBA document for details): 

1. Estimate annual foregone catch of recreational fish (number of fish) 

attributable to I&E mortality under current conditions. 

2. Estimate the marginal value per fish. 

3. Multiply forgone catch by the marginal value per fish to estimate the total 

annual value of forgone catch. 

4. Estimate the annual value of reductions in forgone catch attributable to the 

regulatory analysis options. 
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5. Discount benefits at 3% and 7% to reflect the time lag between I&E 

mortality reductions and increased harvests. 

b. Estimated Benefits to Recreational Anglers 

Decreasing I&E mortality increases the number of fish available to be caught by 

recreational anglers, thereby increasing angler welfare. Error! Reference source not 

ound. shows the estimated benefits resulting from reduced I&E mortality under today’s 

options. The total annualized recreational fishing benefit for all regions, discounted at 

3% (I&E mortality combined), ranges from $1615.3 to $44.9 million; and the total for all 

regions, discounted at 7%, ranges from $14.613.9 to $33.3 million. 

Exhibit VIII-4 — Annual Recreational Fishing Benefits from Eliminating or 

Reducing I&E mortality Losses at All In-scope Facilities by Regulatory Option 

Regulatory Option

Increased Harvest 3% Discount Rate 7% Discount Rate

(million fish) (million 2009$) (million 2009$)

Baseline 26.79 $76.89 $75.64 

Option 1 6.295.77 $16.2515.62 $14.6421

Option 2 23.5855 $43.5552 $32.4240

Option 3 24.06 $44.94 $33.30 

Option 4 5.65 $15.34 $13.94

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on 

modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); 

Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake 

flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all 

facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 

2 MGD.; Option 4 = IM limitations based on modified traveling screens for all facilities with flow 

greater than 50 million gallons per day (MGD).

4. Commercial Fishing Valuation 

Reductions in I&E mortality at cooling water intake structures are expected to 

benefit the commercial fishing industry. By reducing the number of fish killed, the 

number of fish available for harvest is expected to increase. The next section summarizes 

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the methods EPA used to estimate benefits to the commercial fishing sector. The 

following section presents the estimated commercial fishing benefits. 

a. Commercial Fishing Valuation Methods 

The total loss to the economy from I&E mortality impacts on commercially 

harvested fish species is determined by the sum of changes in both producer and 

consumer surplus. EPA assumed a linear relationship between stock and harvest, such 

that if 10% of the current commercially targeted stock were harvested, then 10% of the 

commercially targeted fish lost to I&E mortality would have been harvested, absent I&E 

mortality. The percentage of fish harvested is based on data of historical fishing 

mortality rates. 

Producer surplus provides an estimate of the economic damages to commercial 

fishers, but welfare changes can also be expected to accrue to final consumers of fish and 

to commercial consumers (including processors, wholesalers, retailers, and middlemen) if 

the projected increase in harvest is accompanied by a change in price. The analysis of 

market impacts involves the following steps (see Chapter 6 of the EEBA for details): 

1. Assessing the net welfare changes for fish consumers due to changes in 

fish harvest and the corresponding change in fish price. 

2. Assessing net welfare changes for fish harvesters due to the change in total 

revenue, which could be positive or negative. 

3. Calculating the increase in net social benefits when the fish harvest 

changes by combining the welfare changes for consumers and harvesters. 
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For a more detailed description of the methodology for commercial fishing, see Chapter 6 

of the EEBA. 

b. Commercial Fishing Valuation Results 

Error! Reference source not found. presents the estimated annual commercial 

ishing benefits attributable to the proposed options. The results reported include the total 

reduction in losses in pounds of fish, and the value of this reduction discounted at 3%, 

and 7%. With a 3% discount rate, total estimated annualized commercial fishing benefits 

for the U.S., range from $1.0 to $4.5 million. Applying a 7% rate, these benefits range 

from $0.9 to $3.3 million. EPA estimated the expected price changes from eliminating 

baseline levels of I&E mortality losses and found them to be small, ranging from 0.13

percent to 2.1 percent.

Exhibit VIII-5 Annual Commercial Fishing Benefits from Eliminating or Reducing 

I&E mortality Losses at All In-scope Facilities by Regulatory Option 

Regulatory Option

Increased Harvest 3% Discount Rate 7% Discount Rate

(million fish) (million 2009$) (million 2009$)

Baseline 32.62 $8.05 $7.89 

Option 1 11.079.89 $1.040.99 $0.9389

Option 2 29.7572 $4.47 $3.31 

Option 3 29.99 $4.52 $3.34 

Option 4 9.86 $0.99 $0.89

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on 

modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); 

Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake 

flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all 

facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 

2 MGD.; Option 4 = IM limitations based on modified traveling screens for all facilities with flow 

greater than 50 million gallons per day (MGD).

5. Nonuse Benefits 

Aquatic organisms without any direct uses account for the majority of cooling 

water intake structure losses (Error! Reference source not found.). Although 

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ndividuals do not use these resources directly, they may value changes in their status or 

quality. To assess the public policy significance of the ecological gains from the national 

categorical regulatory options for existing facilities, EPA developed a benefit transfer 

approach to partially monetize nonuse benefits associated with reductions in I&E 

mortality of fish, shellfish, and other aquatic organisms under the categorical regulatory 

options for the North Atlantic and Mid-Atlantic benefits regions. EPA applied estimated 

values from a study occurring in Rhode Island; these estimates are likely to be 

representative of nonuse values held by individuals residing in the Northeast US, and less 

accurate in other regions. EPA was unable to identify comparable studies occurring in 

other regions which could be used to estimate nonuse values. Chapter 8 of the EEBA 

provides further detail on this analysis. 

a. Nonuse Valuation Methods 

The preferred techniques for estimating total resource values (use plus nonuse) 

are to use values from the existing studies or conduct original stated preference surveys. 

Although thereThere are many studies in the environmental economics literature that 

quantify benefits or willingness to pay (WTP) associated with various types of water 

quality and aquatic habitat changes. However, none of these studies allows the isolation 

of non-market WTP associated with quantified reductions in fish losses for forage fish. 

Most available studies estimate WTP for broader, and sometimes ambiguously defined, 

policies that simultaneously influence many different aspects of aquatic environmental 

quality and ecosystem services, but for which WTP associated with fish or aquatic life 

alone cannot be identified. Stated preference methods rely on surveys which ask people 

to state their willingness to pay (WTP) for particular ecological improvements, such as 
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increased protection of aquatic species or habitats with particular attributes. EPA is in the 

process of developing a stated preferences survey to estimate total willingness to pay 

(WTP) for improvements to fishery resources affected by I&E mortality from in-scope 

316(b) facilities. The survey will provide estimates of total values, will allow estimates of 

value associated with specific choice attributes (following standard methods for choice 

experiments), and will also allow the flexibility to provide insight into the relative 

importance of use versus nonuse values in the 316(b) context. However EPA did not 

have sufficient time to fully develop and deploy this survey and derive reliable estimates 

of the monetary value of reducing those impacts at the national level. Benefit transfer of 

values from existing stated preference studies was used by EPA in the absence of an 

original study. 

EPA identified a recent study conducted by Johnston et al. (2009) that is closely 

related to the 316(b) policy context. Both Johnston et al. (2009) and the present context 

address policy changes that increase the number of forage fish in aquatic habitat with 

unknown effects on overall fish populations. Originally developed for a case study 

addressing Rhode Island residents’ preferences for the restoration of migratory fish 

passage over dams in the Pawtuxet and Wood-Pawcatuck watersheds of Rhode Island, 

Johnston et al. (2009) estimates nonuse values by asking respondents to consider changes 

in ecological indicators reflecting quantity of habitat, abundance of wildlife, ecological 

condition, and abundance of migratory fish species. Within this study, estimated values 

were based on the relative change in abundance of fish species impacted to the greatest 

extent by restoration. 
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Estimated benefit functions from the Johnston et al. (2009) choice experiment 

survey allows one to distinguish benefits associated with resource uses from those 

associated primarily with nonuse motives. Within the benefit transfer application, WTP is 

quantified for increases in non-harvested fish alone, based on the implicit price for 

migratory fish changes. This transfer holds all effects related to identifiable human uses 

constant (e.g., effects on catchable fish, public access, observable wildlife, etc.). The 

remaining welfare effect—derived purely from effects on forage fish with little or no 

direct human use—may therefore be most accurately characterized as a nonuse benefit 

realized by households. 

The estimation of nonuse values involved the following steps: 

1. Use a variant of the Johnston et al. (2009) model (the survey variant which 

characterizes effects on the number of migratory fish passing upstream) to 

estimate household WTP per percent increase in the number of fish in a given 

watershed. 

2. Calculate the relative change in abundance for the fish species impacted to the 

greatest extent by the regulation. By comparing increases in age-1 equivalent 

fish to estimates of biomass at species’ carrying capacity, EPA found that of 

all species with habitats inside the boundaries of the North Atlantic and MidAtlantic benefits regions, winter flounder is likely to experience the largest 

percent change in population. This species is harvested; however fish and 

commercial species may be forage during early life-stages and have nonuse 

values.
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3. Estimate total household WTP by applying model results for WTP per 

percentage to estimated winter flounder losses. Total regional WTP is the 

product of household WTP and the number of households within the affected 

region (see Chapter 8 of the EEBA for details.) 

b. Estimated Nonuse Benefits for the North Atlantic and Mid Atlantic Regions 

EPA expects that decreasing I&E mortality will lead to increased fish abundance 

in affected waterbodies, thus increasing nonuse benefits. Error! Reference source not 

ound. shows the benefits that would result from reducing I&E mortality losses through 

today’s proposed options. Estimates of WTP were calculated based on the increase in 

age-1 equivalent winter flounder relative to estimated current biomass. Discounted at 

3%, the total annualized nonuse benefit for the North Atlantic and Mid-Atlantic regions, 

ranges from $0.65 to $75.5 million. When discounted at 7%, annualized nonuse benefits 

range from $0.5 to $58.5 million. 

Exhibit VIII-6 — Annual Nonuse Benefits from Eliminating or Reducing I&E 

mortality Losses at All In-scope Facilities by Regulatory Option 

Regulatory 

Option 

Winter Flounder 

IM&EMI&E

Losses 

(million A1E) 

Increased Winter 

Flounder Age-1 

Equivalent Abundance 

Relative to Virgin 

Biomass (%) 

3% Discount Rate 

(Millions 2009$) 

7% Discount Rate 

(Millions 2009$) 

Baseline 6.50 6.56 $128.64 $130.78 

Option 1 0.03 0.03 $0.5552 $0.5048

Option 2 5.3432 5.3937 $72.2309 $56.0255.93

Option 3 5.57 5.63 $75.48 $58.52 

Option 4 0.03 0.03 $0.52 $0.48

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified 

traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow 

commensurate with closed-cycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM 

limitations based on modified traveling screens for all facilities with flow greater than 2 MGD; Option 3 = Intake flow 

commensurate with closed-cycle cooling for all facilities and IM limitations based on modified traveling screens for all 

facilities with flow greater than 2 MGD.; Option 4 = IM limitations based on modified traveling screens for all 

facilities with flow greater than 50 million gallons per day (MGD).

6. Threatened and Endangered Species 

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This section summarizes methods and results of EPA’s analysis of benefits from 

improved protection of threatened and endangered (T&E) species from the national 

categorical regulatory options considered in today’s Proposal. Chapter 5 of the EEBA 

provides further detail on this analysis. 

For T&E species, mortality due to I&E mortality from CWISs may represent a 

substantial portion of annual reproduction because of the reduced population levels that 

cause a species to be protected. Consequently, I&E mortality may either lengthen 

recovery time, or hasten the demise of these species. Adverse effects of CWIS on T&E 

species may occur in several ways: 

• Populations of T&E species may suffer direct harm as a consequence of 

I&E mortality 

• T&E species may suffer indirect harm if CWIS alters food webs 

• CWIS may alter habitat critical to the long-term survival of T&E species 

(e.g., thermal discharges associated with once through cooling) 

Consequently, EPA believes that 316(b) regulation may help preserve a number of 

threatened and endangered species. 

a. Qualitative Assessment of I&E mortality impacts to T&E species 

By definition, T&E species are characterized by low population levels. As such, it 

is unlikely that these species are recorded in I&E mortality monitoring studies which 

sample only a small proportionportion of all I&E mortality losses. Thus, losses are 

difficult to identify and quantify within a framework developed for common species. 

Consequently, EPA developed a qualitative methodology to estimate the number of T&E 

species affected by I&E mortality. 
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To qualitatively assess the potential for CWIS impacts on aquatic T&E species, 

EPA constructed a database that assessed the geographical overlap of CWIS and habitat 

used by aquatic T&E species. This database identified the number of T&E species 

potentially impacted by each in-scope 316(b) facility, and the number of facilities 

potentially impacting each T&E species. Additional details can be found in Chapter 5 of 

the EEBA document. 

Using this database, EPA found 89 federally-listed T&E species that overlap with 

at least one in-scope 316(b) CWIS (Exhibit VIII-7) Species included freshwater, marine, 

and anadromous fish, freshwater mussels, and sea turtles. On average, the habitat of each 

T&E species overlapped with 20 in-scope facilities (Error! Reference source not 

ound.), suggesting that the regulation of 316(b) facilities may have substantial positive 

benefits on ensuring the long-term sustainability and recovery of T&E species. 

Exhibit VIII-7: Number of In-Scope 316(b) CWIS Within T&E Species Habitat on a 

Per-Species Basis. 

 Facilities per T&E Species4

Subset of Affected Species1,2 Species Interactions3 Avg Max 

All T&E Species 88 1,734 19.70 135 

Sea Turtles 6 652 108.67 135 

T&E Freshwater Mussels 43 836 19.44 85 

T&E Anadromous Fish 13 115 8.85 64 

T&E Freshwater Fish 21 64 3.05 7 

T&E Marine Fish 3 17 5.67 11 

1

 T&E species included species of concern and species under review for listing by the US Fish and Wildlife Service 

(freshwater) or NOAA National Marine Fisheries Service (marine). Only species overlapping with a minimum of one 

CWIS are included. 

2 Two species of coral are included in the 'All Species' category, and not in any subcategory 

3

 Each interaction represents an overlap between the range of a T&E species and CWIS. 

4

 Avg = average, Max = maximum 

b. Quantitative Assessment of I&E mortality Impacts to T&E Species 

Although difficult to observe and quantify, EPA identified 15 T&E species with 

confirmed I&E mortality losses. In addition to documented species-level instances of 

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T&E mortality, EPA identified I&E mortality losses identified toat the level of genera102

when these genera contain a T&E species whose habitat range overlapped the reporting 

facility’s CWIS. Although these are not confirmed I&E mortality losses of T&E species, 

they provide evidence that additional T&E species are likely to be directly affected by 

I&E mortality. A total of 19 genus-level matches were reported, suggesting that the total 

number of15 T&E species suffering I&E mortality losses may be under-reported.an 

underestimate. 

Of the 15 federally-listed T&E species for which losses were documented within 

I&E mortality studies, EPA was able to quantify losses for 82 species. Data were either 

qualitative or of insufficient quality to quantify regional losses for the remaining 713

federally-listed T&E species. EPA also quantified losses for the American Paddlefish 

(Polyodon spathula), listed as threatened or endangered on several state lists, using 

facility I&E mortality loss studies. Error! Reference source not found. presents EPA’s 

stimates of baseline annual I&E mortality losses, and reductions to I&E mortality losses 

estimated to occur under various regulatory options. 

Exhibit VIII-8: Baseline Annual I&E mortality Losses for T&E Species and 

Reductions for All In-scope Facilities by Regulatory Option (A1Es)

Species Value Baseline Option 1 Option 2 Option 3 Option 4

Pallid Sturgeon Use, Nonuse 88 73 85 86 72

American Paddlefish Use, Nonuse 17,628 8,631 15,946 16,317 8,420

Topeka Shiner Nonuse 3,669 3,069 3,546 3,581 2,994

Total 21,384 11,773 19,577 19,984 11,486

Scenarios: Baseline = Baseline I&E Mortality Losses; Option 1 = IM limitations based on modified traveling screens for 

all facilities with flow greater than 2 million gallons per day (MGD); Option 2 = Intake flow commensurate with closedcycle cooling for facilities that have a design intake flow of greater than 2 MGD and IM limitations based on modified 

traveling screens for all facilities with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closedcycle cooling for all facilities and IM limitations based on modified traveling screens for all facilities with flow greater 

than 2 MGD.; Option 4 = IM limitations based on modified traveling screens for all facilities with flow greater than 50

million gallons per day (MGD).

 

102 Genera is the plural of genus. Genus is the rank superior to species in taxonomic biological 

classification. For example, the genus of Atlantic salmon (Salmo falar) is Salmo. 

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I&E mortality is only one of many factors that adversely affect T&E species. 

Estimating total population impacts from changes in I&E losses requires estimates of 

current populations of these fish and estimates of other anthropogenic effects which were 

not readily available for all T&E species with quantified I&E mortality losses at the time 

of this analysis. Therefore, EPA was unable to quantify effects on T&E population from 

the 316(b) regulation.

c. Valuation Methods of T&E Fish Species 

EPA believes that for T&E species, the primary value is non-use value. Harvest 

of these species is prohibited (or at least restricted), reflecting a societal judgment that 

protection and preservation of these species is of greater value than harvest. As noted 

above, EPA had sufficient data from I&E mortality studies to quantify I&E mortality loss 

estimates for three T&E species, including the American Paddlefish (Exhibit VIII-8). 

Two of these species (pallid sturgeon and paddlefish) have use values. Additionally, the 

remaining species - Topeka shiner - has nonuse values.

To estimate use values for these T&E fish,). EPA applied estimates from a 

Random Utility Model (RUM) analysis conducted for the suspended 316(b) Phase II 

regulation to evaluate recreational fishing benefits of the suspended 316(b) Phase II 

regulation. EPA was also able to find a number of studies valuing preservation or nonuse 

values of species similar to those affected by for I&E mortality. Applicableloss 

reductions for two of these species. EPA applied transfer values were obtained for all 

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T&E species with quantifiedfrom this analysis to monetize I&E mortality losses for these 

species (See Chapter 5 for details). 

I&E mortality is only one EPA emphasizes that nonuse values for T&E fish 

species are likely to be significantly greater than any use values, and these EPA was not 

able to quantify. With this caveat, the results of many factors that adversely affectthe 

analysis of recreational fishing benefits for two T&E species. Therefore, EPA scaled 

WTP values to account for only the portion of T&E populations protected or enhanced 

through reductions to I&E mortality losses. This required estimates of current 

populations of these fish, which were not readily available for all T&E species with 

quantified I&E mortality losses at the time of this analysis. Therefore, EPA estimated 

use values for pallid sturgeon and paddlefish, and estimated nonuse values for all three 

fish species are shown below. 

d. Estimated Monetary Benefits from Reduced Mortality of T&E Fish Species 

Error! Reference source not found. presents the estimated annual benefits to a 

subset of T&E species attributable to today’s proposed options. Using a 3% discount 

rate, total annualized use benefits for the two T&E species with quantifiedmonetized I&E 

mortality losses are estimated to range from $0.5 to $0.7 million. Applying a 7% discount 

rate, annualized benefits range from $0.54 to $0.6 million. 

Exhibit VIII-9 — Annual Use Benefits from Eliminating or Reducing I&E mortality 

Losses of T&E Species at All In-scope Facilities by Regulatory Option 

Regulatory Option

Increased Harvest 3% Discount Rate 7% Discount Rate

(number of fish) (million 2009$) (million 2009$)

Baseline 17,715.55 1.14 1.14

Option 1 8,704.08 0.50 0.45

Option 2 16,030.56 0.72 0.56

Option 3 16,403.11 0.72 0.55 

Option 4 8,491.59 0.49 0.44
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Note: Values are included for pallid sturgeon and paddlefish in the Inland region. 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM limitations based on 

modified traveling screens for all facilities with flow greater than 2 million gallons per day (MGD); 

Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake 

flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities 

with flow greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all 

facilities and IM limitations based on modified traveling screens for all facilities with flow greater than 

2 MGD. ; Option 4 = IM limitations based on modified traveling screens for all facilities with flow 

greater than 50 million gallons per day (MGD).

EPA notes that the benefit values presented in Exhibit VIII-9 represent only a 

fraction of values for T&E species potentially affected by the proposed regulation: the 

Agency was able to obtain use values for only a small subset of all affected T&E species. 

Moreover, because of the nature of T&E species, even a small increase in population may 

yield economic and ecological benefits (e.g., Richardson and Loomis 2008, Huppert et al. 

2004; Berrens et al. 1996) 

e. Valuation Methods for T&E Sea Turtles 

In addition to estimating values of T&E fish with quantitative estimates of I&E 

mortality losses, EPA estimated the WTP for sea turtle conservation. In this analysis, 

EPA applied estimates from a study using a stated preference valuation approach to 

estimate total economic value of a management program that reduces the risk of 

extinction of loggerhead sea turtles (Whitehead 1993). 

Although I&E mortality mortality is relatively low compared to mortality from 

shrimp trawling and other fisheries (Plotkin 1995), it is known that low levels of turtle 

mortality during juvenile and subadult life stages can have a substantial effect on 

population growth (Crouse et al. 1987). EPA believes that the marginal decrease in 

extinction probability of sea turtles due to 316(b) regulatory options is likely to be at least 

0.01, or a 1% increasedecrease in the probability of extinction over 25 years. This 

assessment is based upon reports that I&E mortality may result in the loss of more than 
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100 turtles per year, and because turtle population growth rates are known to be sensitive 

to changes in juvenile and subadult life stages (Crouse et al. 1987). 

f. Estimated Monetary Benefits from Reduced Mortality of T&E Sea Turtles 

The U.S. range of loggerhead sea turtles includes the Gulf of Mexico, South 

Atlantic, Mid-Atlantic, and North Atlantic 316(b) regions (USFWS 2010). To calculate 

national WTP for an increased 25-year survival probability of loggerhead sea turtles, 

EPA assumed the affected population to include households in states with in-scope 

316(b) facilities that occur within loggerhead sea turtle habitat. Using this assumption,

EPA determined 53.4 million households would be willing to pay for improved 

protection of loggerhead sea turtles. By applying the mean household value of $0.35 

(2009$), national annualized WTP for a 1% increase in the survival probability of 

loggerhead sea turtles over 25 years is Although incidences of mortality have been 

reported at facilities in California, Texas, Florida, South Carolina, North Carolina, and 

New Jersey EPA does not have sufficient information to quantify total sea turtle losses 

due to intakes, or the reductions in such losses that might occur from the various options. 

But as an illustrative example, assuming that the survival probability of loggerhead sea 

turtles over 25 years was increased by 1%, and applying a mean household value of $0.35 

(2009$, see the EEBA Chapter 5), the monetized value would be $16.6 million and $16.0 

million using discount rates of 3% and 7%, respectively. Because EPA does not currently 

have accurate national estimates of I&E mortality for turtle species, nor are population 

models available that estimate the effect of 316(b) regulation on population size and 

extinction risk, these estimates are presented only to assess the range of benefitsas an 

illustrative example, and are not included in national totals. 
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g. Other Indications of Society’s WTP for Protection of T&E Species 

Many sources provide information that indicates the magnitude of society’s 

values forthat society places significant value on protecting T&E species. These include, 

but are not limited to: 

• The Endangered Species Act of 1973 which provides for the conservation 

of T&E species of fish and wildlife. To comply with this law state and 

localthe federal government and state governments spent a total of $467.6 

million during fiscal year 2008 on protection of federally listed T&E 

species with habitat overlapping CWIS. 

• Restrictions placed on the habitat occupied by T&E species. For example, 

water diversions on the San Joaquin-Sacramento River delta, in place to 

protect the Delta Smelt (Hypomesus transpacificus), limit the extraction of 

water for drinking and agriculture. 

• The willingness of individuals to volunteer their time to conserve T&E 

species. For example, dozens of organizations recruit thousands of 

volunteers every year to participate in sea turtle conservation and research 

projects; volunteers are often required to undergo substantial training and 

commit to long hours. 

While costs to replace, protect or enhance stocks, and costs to users affected by 

efforts to conserve stocks are not direct measures of economic benefits, they indicate that 

society is willing to pay significant sums to protect and restore populations of T&E 

species. Although I&E mortality is only one of many stressors on these species, reducing 

the magnitude of these losses is likely tomay contribute to the recovery of populations 
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over time, thereby eliminating some costs associated with conserving threatened and 

endangered species. 

7. Assessment of Thermal Discharge Impacts

The impacts of thermal discharges are a relevant consideration when assessing 

appropriate technologies to reduce the impacts of cooling water intakes or discharges. 

EPA did not quantify nationally the impacts of thermal discharges; however, several 

studies have demonstrated the adverse effects that increased temperatures have on local 

biota and fauna. For example, in the case of Brayton Point Station, EPA specified lower 

thermal discharge limits than originally requested by the power plant operator in order to 

prevent appreciable harm to the balanced, indigenous population of shellfish, fish, and 

wildlife in and on Mount Hope Bay and to assure the protection and propagation of the 

population (U.S. EPA, 2003). Georgia Power installed helper cooling towers at three of 

its plants on the Chattahoochee River to mitigate the impacts of thermal discharges and to 

improve dissolved oxygen levels. Thermal discharge impacts have also been documented 

at other coastal and freshwater sites (e.g., Quad Cities Nuclear Station discharge to 

Mississippi River, Point Beach Nuclear Plant discharge to Lake Michigan), with varying 

degrees of reduction in habitats available to indigenous fish and shellfish population 

particularly during summer months. While demonstrations of no appreciable harm have 

been made to regulatory authorities under Section 316(a) of the CWA, supporting studies 

nonetheless often show periods during which thermal limits are exceeded. Impacts of 

thermal discharges should therefore be revisited on a case-by-case basis as conditions 

change, for example if power uprate increases thermal loads to the receiving waterbody, 

if the thermal assimilative capacity of the receiving waterbody is otherwise compromised, 
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or in the face of new evidence that cooling water discharges are causing appreciable harm 

to the balanced, indigenous population of shellfish, fish, and wildlife or fail to ensure the 

protection or propagation of the population. Such assessments need to consider the 

extent, duration, timing, and frequency of adverse thermal impacts, the target threshold 

temperature for each species, the potential for adverse temperature effects on larger 

ecological processes, and other relevant site-specific factors.

Since thermal discharges are a product of once-through cooling water systems, the 

impacts of thermal discharges are a relevant consideration when assessing appropriate 

technologies to reduce the effects of cooling water intakes. Thermal pollution has long 

been recognized to cause harm to the structure and function of aquatic ecosystems. 

Concerns about the impacts of thermal discharges are addressed by provisions of CWA 

Section 316(a) regulations. NPDES permits are required to limit thermal discharges in 

order to ensure that that there is no appreciable harm to a balanced, indigenous 

population of shellfish, fish and wildlife. Permit requirements, however, may not totally 

eliminate all adverse impacts in all cases. In addition to reducing total I&E mortality, 

closed cycle cooling reduces thermal pollution. Most retrofit installations of cooling 

towers at electric generating facilities have been required by NPDES permits for the sole 

purpose of reducing thermal discharges. 

EPA did not quantify nationally the impacts of thermal discharges. However, 

numerous studies have shown that thermal discharges may substantially alter the 

structure of aquatic communities by modifying photosynthetic, metabolic, and growth 

rates. Thermal discharges also harm aquatic life by reducing levels of dissolved oxygen, 

altering the location and timing of fish behavior such as spawning, aggregation, and 
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migration, and may cause thermal shock-induced mortality for some species. Adverse 

temperature effects may also be more pronounced in aquatic ecosystems that are already 

subject to other environmental stressors such as high levels of biochemical oxygen 

demand, sediment contamination, or pathogens. Within mixing zones, which often extend 

several miles downstream from outfalls, thermal discharges may impair efforts to restore 

and protect the waterbody. For example, permit requirements to limit nitrogen discharges 

in a watershed, and thereby reduce harmful algal blooms, may be counteracted by 

thermal discharges which promote growth of harmful algae. Thermal discharges may 

have indirect effects on fish and other vertebrate populations through increasing pathogen 

growth and infection rates. 

 Thermal discharges may thus alter the ecological services, and reduce the 

benefits, of aquatic ecosystems that receive heated effluent. The magnitude of thermal 

effects on ecosystem services is related to facility-specific factors, including the volume 

of the waterbody from which cooling water is withdrawn and returned, other heat loads, 

the rate of water exchange, the presence of nearby refugia, and the assemblage of nearby 

fish species. Again, EPA emphasizes that thermal impacts are supposed to be minimized 

through implementation of Section 316(a), but to the extent that any impacts remain after 

the requirements in 316(a) have been satisfied, replacing once-through cooling with 

closed-cycle cooling may provide additional benefits.

8. National Monetized Benefits 

Quantifying and monetizing reductions in I&E mortality losses due to the 

regulatory options is extremely challenging. National benefit estimates are subject to 
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uncertainties inherent in valuation approaches used to assess the benefits categories (See 

Chapters 5, 6, 7, and 8 of the EEBA document.). The combined effect of these 

uncertainties is of unknown magnitude or direction—that is, the estimates may over- or 

understate the anticipated national-level benefits. However,While EPA has no data to 

indicate that the results for each benefit category are atypical or unreasonable. However, 

EPA is certainbelieves that some potentially significant benefit categories have not been 

included fully monetized, and thus the national monetized benefits presented below likely

underestimate total benefits, challenging the Agency’s ability to base BTA decision 

making on national the relationship of quantified costs and benefits alone. 

Error! Reference source not found. presents EPA's estimates of the totalpartial

onetized benefits from I&E mortality reduction of the considered regulatory options. 

These monetized values represent directuse values from increased commercial and 

recreational catch values, the, recreational fishing benefits from increased catch of 

threatened and endangered species, and nonuse values associated with an increase in fish 

abundance (those fish that are not caught) in the North and Mid-Atlantic benefit regions. 

Total Partial estimated benefits from reducing I&E mortality under the proposed rule and 

alternative options range from $1817.3 to $125.6 million (2009$) per year, discounted at 

3%, and from $16.515.8 to $95.7million (2009$) per year when discounted at 7%. EPA 

was not able to fully monetize the majority of these benefits for this proposal. Thus, the 

estimates presented represent a conservative (i.e. low) estimate of total regulatory 

benefits. 

Field Code Changed
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Exhibit VIII-10: Summary of National Benefits for All In-scope Facilities by 

Regulatory Option

Regulatory Option 

Monetized Benefit Categories 

Recreational 

Fishing 

Commercial 

Fishing Nonuse T&E Speciesa Total 

3% Discount Rate (Millions 2009$) 

Baseline 76.89 8.05 12.64 1.14 214.72 

Option 1 16.2515.62 1.040.99 0.5552 0.50 18.3417.63

Option 2 43.5552 4.47 72.2309 0.72 120.9679

Option 3 44.94 4.52 75.48 0.72 125.65 

Option 4 15.34 0.99 0.52 0.49 17.33

7% Discount Rate (Millions 2009$) 

Baseline 75.64 7.89 130.78 1.14 215.45 

Option 1 14.6421 0.9389 0.5048 0.45 16.5304

Option 2 32.4240 3.31 56.0255.93 0.56 92.3220

Option 3 33.30 3.34 58.52 0.55 95.71 

Option 4 13.94 0.89 0.48 0.44 15.76

a Benefits estimates for T&E species are restricted to recreational fishing benefits from increased catch of T&E 

species. They do not include benefits for reduced mortality of T&E sea turtles and other nonuse values associated 

with T&E species. 

Scenarios: Baseline = Eliminating Baseline I&E Mortality Losses; Option 1 = IM Everywhere; Option 1 = IM 

limitations based on modified traveling screens for all facilities with flow greater than 2 million gallons per day 

(MGD); Option 2 = Intake flow commensurate with closed-cycle cooling for facilities that have a design intake 

flow of greater than 2 MGD and IM limitations based on modified traveling screens for all facilities with flow 

greater than 2 MGD; Option 3 = Intake flow commensurate with closed-cycle cooling for all facilities and IM 

limitations based on modified traveling screens for all facilities with flow greater than 2 MGD.; Option 4 = IM 

limitations based on modified traveling screens for all facilities with flow greater than 50 million gallons per day 

(MGD).

E. Uncertainty and Limitations

 EPA recognizes that its estimates of ecological and economic benefits projected 

to occur under regulation are impacted by uncertainty at many levels (uncertainty and 

limitations are discussed in detail in Chapters 2, 3, 4, 5, 6, 7, and 8). Moreover, due to 

incomplete data availability, and limited resources, the Agency recognizes that there are 

limitations to the analyses presented above and in the EEBA. Examples of uncertainty 

and limitations include, but are not limited to: 

• Not all ecological goods and services impacted by CWIS at in-scope 

316(b) facilities are modeled or monetized, suggesting that the total 
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benefits of regulation may be underestimated. For example, potential 

increases to ecosystem stability that may occur as a result of regulation is 

neither estimated nor monetizednot explicitly estimated nor monetized, 

though it is difficult to parse out what exactly is or is not included in WTP 

estimates for non-use values, which were included for the North Atlantic 

and Mid-Atlantic regions. 

• When particular ecological goods and services are monetized, data is not 

always available at a national scale. For example, EPA was able to 

estimate nonuse benefits of I&E mortality reductions only within the 

North and Mid-Atlantic regions, suggesting that nonuse values are 

significantly underestimated. 

• EPA makes simplifying assumptions that allow for I&E mortality losses 

and benefits to be estimated on a national scale. For example, EPA 

assumes that I&E mortality losses from model facilities are representative 

of all facilities within a region. The effect of these assumptions are 

unknown, and may lead to over- or under-estimates of modeled losses and 

benefits. However, EPA notes that the age of the studies and likely 

improvements to waters make them less representative of current 

conditions. 

• EPA relies on biological and economic data of various scope, duration, 

and date to estimate regional and national baseline and benefits. The effect 

of these various differences on total regional and national benefits is 

uncertain. 
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• EPA developed methodologies to estimate regional and national baselines 

and benefits of 316(b) regulation. As such, location- and species-specific 

quantitative estimates may not be precise. Overall, however, EPA believes 

its approach is valid for regional and national-scale analyses that 

incorporate a large number of facilities and species. 

 Overall, EPA recognizes many sources of uncertainty in its models, and is aware 

of the limitations of analysis. However, EPA believes that all data and parameters were 

reported in good faith, and as such, are unlikely to be biased in aggregate. Moreover, data 

availability and model limitations suggest that true benefits are likely to exceed, rather 

than be eclipsed by, estimated benefits.However, EPA has used the best available 

scientific and economic methodologies to partially monetize benefits using available 

resources. As noted above, EPA expects to improve its benefits estimates by 

incorporating the results of a national survey of WTP to protect fish and aquatic resources 

into the analysis for the final rule Because EPA was only able to partially monetize nonuse benefits, EPA expects that true benefits are greater than the estimates presented here. 

IX. Implementation 

The following sections describe how the Agency expects the proposed rule requirements 

to be implemented. 

A. How Would the Proposed Requirements Be Applied?

 The requirements of today’s proposal would be applied to individual facilities 

through NPDES permits issued by the EPA or authorized States under Section 402 of the 

Clean Water Act. Today’s proposed requirements would apply to each cooling water 
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intake structure located at a facility subject to the requirements. In cases where a facility 

has more than one cooling water intake structure, and each cooling water intake structure 

provides cooling water to one or more generating or manufacturing units, the proposed 

requirements would apply to each cooling water intake structure individually and 

compliance would be required at each cooling water intake structure. 

B. When Would Affected Facilities Be Required to Comply?

These promulgated regulations would become effective ninety (90sixty (60) days 

after the date of publication in the Federal Register. After the effective date of a 

regulation, permitting authorities often allow facilities some time period to come into 

compliance. As proposed, facilities would have to comply with the impingement 

mortality requirements as soon as possible. Facilities may request additional time (not to 

exceed eight years as described below) to comply with the requirements for impingement 

mortality. With respect to entrainment requirements, under the proposal, existing 

facilities must comply as soon as possible under a schedule of compliance established by 

the permitting authority. 

EPA found during site visits that the vast majority of facilities indicated they 

could comply with the impingement requirements of the Phase II rule within a single 

permit term (5 years), with most sites needing less time and some sites needing slightly 

more. For example, facilities that already have traveling screens should be able to modify 

the existing traveling screens, add fish return systems, conduct necessary testing, and 

achieve the IM limits within a few years. On the other hand, EPA identified certain 

technical and logistical issues at some facilities that may warrant additional time, such as 

replacing intake structures to utilize wedgewire screens, adding additional intake bays to 
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reduce intake velocity, or pilot testing of other technologies. As discussed in section 6, 

the need for outages by multiple facilities in one geographic area would need to be 

coordinated so as to minimize any impacts on the consistency and reliability of power 

generation; this could also result in the need for slightly more time. In these 

circumstances EPA expects a facility could reasonably require as long as 8 years to attain 

compliance. 

For those existing facilities that will be subject to both impingement mortality and 

entrainment mortality requirements, the Director should take this into account when 

establishing a deadline for compliance, which may also result in the facility needing more 

time to comply with the IM requirements. For example, if a facility plans to retrofit to 

wet cooling towers to both comply withreduce entrainment mortality and to use the 

resulting lower intake velocity to comply with requirements for impingement mortality, 

the Director may be able to allow for compliance with the IM requirements to extend to 

the same schedule as the entrainment mortality requirements. Where However, where the 

Director determines a facility would need longer than 8 years to comply with the EM 

requirements established by the Director, EPA does the proposed rule would not intend 

allow the compliance schedule for the facility to do nothing IM to reduce IM until the 

technologies for EM have been implemented. Inextend beyond 8 years. EPA recognizes 

that this case, the schedule established by the Director would still establish a schedule for 

the facilitylimitation may penalize facilities that might install cooling towers to meet 

theboth IM and EM requirements but are unable to complete installation within 8 years. 

EPA requests comment on this limitation.
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The Director would have the discretion to implement a shorter (i.e., more 

stringent) timeline for compliance, but in no event should the Director allow a 

compliance schedule to extend beyond the dates specified at § 125.93. Furthermore, EPA 

expects today’s proposal gives advance notice to affected facilities what the Agency’s 

expectations are regarding compliance schedules. 

The record demonstrates that biological organisms subject to impingement and 

entrainment from cooling water intake structures may vary considerably from site to site 

with respect to types of species, quantity of organisms, distribution of life stages, 

feeding habits, and other factors. As a result, EPA envisions that each facility subject to 

today’s proposal would study available technologies and operational measures, and 

subsequently install, incorporate and optimize the technology most appropriate for each 

site. EPA believes the proposed § 125.93 affords flexibility for a reasonable amount of 

time to conduct biological studies, assess and select appropriate technologies, apply for 

necessary permits, complete construction, and optimize the technologies’ performance. 

The permitting authority would establish any additional interim milestones within these 

timelines in accordance with the existing NPDES provisions at § 122.47. 

C. What Are My Requirements?

 As proposed, all existing facilities subject to the proposed rule andthat withdraw a 

DIF of greater than two MGD would be required to comply with the impingement 

mortality requirements at § 125.94(b). EPA estimates that 1262 facilities would be 

subject to impingement mortality requirements. As many as 93 percent of electric 

generators and 73 percent of manufacturers already employ traveling or other intake 

screens which could be readily modified to meet today’s proposed requirements. In 
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addition, 374 facilities already have full or partial cooling towers, and most of these 

facilities already have a maximum intake velocity of less than 0.5 feet per second. As a 

result, half of all manufacturers and more than three-fourths of all electric generators may 

already meet some or all of today’s proposed requirements for impingement mortality. 

To provide flexibility in meeting proposed rule IM requirements, EPA is offering 

facilities two options for compliance with IM requirements. Facilities may install 

technologies and demonstrate that they are meeting the impingement mortality 

restrictions at § 125.94(b)(1), or demonstrate compliance with the monthly and annual

intake velocity standardstandards as described at § 125.94(b)(2). The monthly limit is 

less stringent than the annual limit to reflect variability inherent in biological 

measurements, seasonal fluctuations, and other site-specific factors. As discussed in 

Section VI, intake velocity is an important parameter for minimizing impingement and 

therefore reducing impingement mortality. Data in the record demonstrate that facilities 

with a maximum intake velocity of 0.5 feet per second significantly reduce the potential 

for impingement and impingement mortality to a level equal to or better than the 

impingement mortality restrictions. EPA is therefore proposing an alternative standard

that would allow facilities to demonstrate to the Director that either the maximum design 

intake velocity, or the maximum actual intake velocity as it passes through the structural 

components of a screen measured perpendicular to the mesh (under § 125.94(b)(2)(i)) or 

through the opening of the intake (under § 125.94(b)(2)(ii)), will not exceed 0.5 feet per 

second. 

Under either option for compliance with the Impingement Mortality standard, 

facilities that withdraw water from an ocean or estuary would also be required to reduce 
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IM of shellfish to a level commensurate with properly deployed barrier nets. EPA expects 

passive screens would meet or exceed this level of performance, and has identified 

passive screens in the proposed regulations as being pre-approved for purposes of 

meeting this requirement. Also, under either option, facilities would be required to ensure 

that their intakes are structured so as to avoid entrapment (i.e., organisms being trapped 

in an intake bay or canal and unable to escape). Facilities with traveling screens located 

in a forebay would be expected to install fish handling and return systems to meet this 

requirement. EPA expects passive screens such as cylindrical wedgewire would also 

meet this requirement.

In addition, facilities would be required to meet entrainment mortality standards 

as determined by the Director on a case-by-case basis. Under today’s proposal, facilities 

with an actual intake flow of 125 MGD or greater would be required to submit with their

application studies as described in this section to assist the Director in establishing 

appropriate entrainment mortality controls for that facility. The Director would evaluate 

each facility’s application materials to make a site-specific determination of BTA for 

entrainment mortality for the facility. In some cases, the Director may determine that 

additional requirements are not necessary to satisfy BTA for entrainment.

SmallCooling water intakes with flows for auxiliary plant cooling uses (totaling 

less than two MGD) or any quantity of emergency are not subject to the proposed 

requirements. In addition, intakes where less than 25% of flow is used for cooling are 

also not subject to these requirements. Emergency back-up water flows would not be 

subject to proposed requirements, but could still be subject to more stringent standards 

under § 125.94(f). considered cooling water for purposes of this calculation. 
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Furthermore, EPA seeks to promote water reuse in the proposed rule by specifically 

exempting wastewater, process water, and other gray water from the (even when used for 

cooling) from the definition of cooling water used in this calculation. However, once an 

intake satisfies these threshold requirements, all flow from the intake is subject to the 

impingement requirements. To the extent that any entrainment mortality 

requirementsrequirements are based on flow commensurate with closed cycle cooling, 

these would be applied to the non-contact cooling portion of the intake only, and could be 

met, in full or in part, by reusing water for non-cooling purposes. Intakes not subject to 

the rule may still be subject to requirements under other Federal, state, or local 

authorities. 

New units at existing facilities would be required to meet the impingement 

mortality requirements at § 125.94(b) and entrainment mortality requirements at § 

125.94(d). The impingement mortality requirements would be the same as those 

identified for existing facilities, i.e. either numerical restrictions on impingement 

mortality or a maximum intake velocity. The entrainment mortality requirements are 

based on the level of EM reductions achieved by closed-cycle cooling. The proposed 

rule would allow facilities to demonstrate performance commensurate with the closedcycle cooling identical to the Phase I rule provision for new facilities. 

D. What Information Must I Submit in My Permit Application?

All existing facilities would be required to complete and submit application 

studies to describe the source water body, cooling water intake structures, cooling water 

system; characterize the biological community in the vicinity of the cooling water intake 

structure; develop a plan for controlling impingement mortality; describe biological 
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survival studies that address technology efficacy and other studies on impingement and 

entrainment at the facility; and, discuss the operational status of the facility. The 

application studies would be used by the Director to assess the impingement and 

entrainment impacts of the cooling water intake structure and determine appropriate 

technological and/or operational controls, as necessary. Facilities withdrawing more than 

125 MGD and existing facilities with new units would also complete and submit studies 

to characterize entrainment mortality and assess the costs and benefits of installing 

various potential technological and operational controls. A list of the proposed 

application materials is presented below. EPA request comment on the practicability and 

burden for facilities to prepare and submit this information. EPA is particularly 

interested in the burden to facilities with DIF < 50 MGD. EPA also requests comment on 

the practical utility of this information.

List of Proposed Application Materials

Facilities that already employ closed-cycle cooling and new units at existing 

facilities that plan to employ closed cycle would submit:

122.21(r)(2) Source water physical data

122.21(r) (3) Cooling water intake structure data

122.21(r) (4) Source water baseline biological characterization data

122.21(r) (6) Proposed Impingement Mortality Reduction Plan

All other existing facilities would submit:

122.21(r)(2) Source water physical data 

122.21(r) (3) Cooling water intake structure data 

122.21(r) (4) Source water baseline biological characterization data 

122.21(r) (5) Cooling water system data 

122.21(r) (6) Proposed Impingement Mortality Reduction Plan 

122.21(r) (7) Performance studies 

122.21(r) (8) Operational status 

Facilities withdrawing more than 125 MGD (except those with closed cycle), and 

existing facilities with new units that plan to demonstrate performance equivalent 

to closed cycle would also submit: 

122.21(r) (9) Entrainment characterization study 

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122.21(r) (10) Comprehensive technical feasibility and cost evaluation study 

122.21(r) (11) Benefits valuation study 

122.21(r) (12) Non-water quality impacts assessment 

A summary of each application requirement follows. The proposed timeline for 

submittal of the application materials is outlined in the next section. 

§ 122.21(r)(2) Source water physical data 

This requirement is unchanged from the Phase I rule and the suspended Phase II 

rule. The facility would be required to submit data to characterize the facility and 

evaluate the type of waterbody and species potentially affected by the cooling water 

intake structure. The applicant would be required to submit: a narrative description and 

scaled drawings showing the physical configuration of all source water bodies used by 

the facility, including areal dimensions, depths, salinity and temperature regimes, and 

other documentation that supports the determination of the water body 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 within the 

waterbody and the results of such studies; and locational maps. The Director would use 

this information to evaluate the appropriateness of any design or technologies proposed 

by the applicant. 

§ 122.21(r)(3) Cooling water intake structure data 

This requirement is unchanged from the Phase I rule and the suspended Phase II 

rule. This data would be used to characterize the cooling water intake structure and 

evaluate the potential for impingement and entrainment of aquatic organisms. 

Information on the design of the intake structure and its location in the water column 
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would allow evaluation of which species and life stages would potentially be subject to 

impingement and entrainment. A diagram of the facility’s water balance would be used to 

identify the proportion of intake water used for cooling, make-up, and process water. The 

water balance diagram also provides a picture of the total flow in and out of the facility, 

and would be used to evaluate gray water, waste water, and other reuses within the 

facility. The applicant would be required to submit: a narrative description of the 

configuration of each of cooling water intake structure and where it is located in the 

water body and in the water column; latitude and longitude in degrees, minutes, and 

seconds for each cooling water intake structure; a narrative description of the operation of 

each of cooling water intake structure, 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. 

§ 122.21(r)(4) Source water baseline biological characterization data

This information would be required to characterize the biological community in 

the vicinity of the cooling water intake structure and to characterize the operation of the 

cooling water intake structures. This supporting information must include existing data if 

they are available. However, the facility may supplement the data using newly conducted 

field studies if it chooses to do so. The information the applicant would submit includes: 

identification of data that are not available and efforts made to identify sources of the 

data; a list of species (or relevant taxa) for all life stages and their relative abundance in 
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the vicinity of the cooling water intake structure; identification of the species and life 

stages that would be most susceptible to impingement and entrainment. Species evaluated 

should include the forage base as well as those most important in terms of significance to 

commercial and recreational fisheries. In addition, the applicant must provide 

identification and evaluation of the primary period of reproduction, larval recruitment, 

and period of peak abundance for relevant taxa; data representative of the seasonal and 

daily activities (e.g., feeding and water column migration) of biological organisms in the 

vicinity of the cooling water intake structure; identification of all threatened, endangered, 

and other protected species that might be susceptible to impingement and entrainment at 

your cooling water intake structures; and documentation of any public participation or 

consultation with Federal or State agencies undertaken in development of the plan. If the 

applicant supplements the information with data collected using field studies, supporting 

documentation for the Source Water Baseline Biological Characterization would include 

a description of all methods and quality assurance procedures for sampling, and data 

analysis including a description of the study area; taxonomic identification of sampled 

and evaluated biological assemblages (including all life stages of fish and shellfish); and 

sampling and data analysis methods. The sampling and/or data analysis methods used 

must be appropriate for a quantitative survey and based on consideration of methods used 

in other biological studies performed within the same source water body. The study area 

should include, at a minimum, the area of influence of the cooling water intake structure. 

The applicant may also identify protective measures and stabilization activities that have 

been implemented, and describe how these measures and activities affected the baseline 

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water condition in the vicinity of the intake. Existing facilities with closed-cycle cooling 

would not be required to submit this information under the proposed rule.

§ 122.21(r)(5) Cooling water system data

This data would be used by the Director in determining the appropriate standards 

that would be applied to the facility. For example, facilities that have closed-cycle 

recirculating systems will have been determined to have met many of the proposed 

performance standards, and in most cases would not be required to submit certain studies 

or other application requirements. Manufacturing facilitiesFacilities would be able to use 

this information, along with the water balance diagram required by 122.21(r)(5), to 

demonstrate the extent to which flow reductions have already been achieved. The 

applicant would provide the following information for each cooling water intake structure 

they use: a narrative description of the operation of the cooling water system and its 

relationship to cooling water intake structures; the proportion of the design intake flow 

that is used in the system including a distribution of water used for contact cooling, noncontact cooling, and process uses; a distribution of water reuse (to include cooling water 

reused as process water, process water reused for cooling, and the use of grey water for 

cooling); description of reductions in total water withdrawals including cooling water 

intake flow reductions already achieved through minimized process water withdrawals; 

description of any cooling water that is used in a manufacturing process either before or 

after it is used for cooling, including other recycled process water flows; the proportion 

of the source waterbody withdrawn (on a monthly basis); the number of days of the year 

the cooling water system is in operation and seasonal changes in the operation of the 

system, if applicable. The applicant would also submit a description of existing 

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impingement and entrainment technologies or operational measures and a summary of 

their performance, including but not limited to reductions in entrainment mortality due to 

intake location and reductions in total water withdrawals and usage, and efficiencies in 

energy production for each producing unit that result in the use of less cooling water, 

including but not limited to combined cycle and cogeneration. For example, the applicant 

may provide comparative density data for the intake to demonstrate the extent to which 

location of the intake has reduced adverse environmental impact. 

§ 122.21(r)(6) Proposed Impingement Mortality Reduction Plan

The facility’s proposed Impingement Mortality Reduction Plan would identify the 

approach the facility would use to meet proposed rule IM requirements, i.e., direct 

measure of impingement mortality through sampling, or demonstration that the maximum 

intake velocity is equal to or less than 0.5 fps. For the former, the Plan would include the 

duration and frequency of monitoring (which EPA assumes would generally be 

conducted on a biweekly basis, although the exact frequency would be determined caseby-case), the monitoring location, the organisms to be monitored, and the method in 

which naturally moribund organisms would be identified and taken into account. The 

Plan would also address the impingement mortality of shellfish, as appropriate, for 

intakes that withdraw from oceans and tidal waters, e.g., seasonal deployment of barrier 

nets, passive screens, or an appropriate handling and return system. The Plan would 

document all methods and quality assurance/quality control procedures for sampling and 

data analysis. The proposed sampling and data analysis methods would be appropriate 

for a quantitative survey and include consideration of the methods used in other studies 

performed in the source waterbody. The Plan would include a description of the study 
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area (including the area of influence of the cooling water intake structure(s)), and provide 

a taxonomic identification of the sampled or evaluated biological assemblages (including 

all life stages of fish and shellfish). 

For facilities that plan to meet IM requirements by demonstrating that the 

maximum intake velocity is equal to or less than 0.5 fps, the Plan would provide for each 

intake either, 1) documentation that the design intake velocity is equal to or less than 0.5 

feet per second, as described at § 125.94(b)(2)(i-ii), or, 2) documentation of the facility’s 

proposed method for demonstrating the required maximum intake velocity (equal to or 

less than 0.5 feet per second) in accordance with § 125.94(b)(2)(i-ii). This velocity must 

be maintained while as much as 15 percent of the intake surface area is blocked due to 

debris, ice, plant growth, or any other clogging materials. EPA notes that its proposed 

definition of intake velocity at § 125.92 provides that this requirement would be 

applicable for screen/mesh type intakes as well as offshore intakes. For facilities with 

traveling screens, EPA believes the low cost and ease of installing an effective fish 

handling and return system warrants the retrofit of such controls, even if the maximum 

intake velocity is less than 0.5 feet per second. The ,however, this is not required by the 

proposed rule. If intake velocity is not maintained at less than 0.5 feet per second, the

regulation requires modified traveling screens mustto include collection buckets designed 

to minimize turbulence to aquatic life, the addition of a guard rail or barrier to prevent 

loss of fish from the collection bucket, replacement of screen panel materials with smooth 

woven mesh, a low pressure wash to remove fish prior to any high pressure spray to 

remove debris on the ascending side of the screens, and a fish handling and return system 

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with sufficient water flow to return the fish to the source water in a manner that does not 

promote predation or re-impingement of the fish. 

 Under the proposed impingement requirements, the owner or operator of the 

facility must ensure that there is a means for impingeable fish or shellfish to escape the 

cooling water intake system or be returned to the waterbody through a fish return system. 

Thus, a facility would need to demonstrate that their cooling water intake structure does 

not lead to entrapment. This provision is intended to avoid the collection of impingeable 

organisms into a cooling water intake system where there is neither a fish handling and 

return system nor an opportunity for the organisms to escape the cooling water intake 

system. For example, a facility may have an offshore intake with a velocity cap that 

meets the maximum velocity requirements for IM. The intake then leads to a pipe, canal, 

or forebay for which there is no means to return the organisms to the source water. In this 

example, this provision would require that the facility implement a fish return system. 

handling and return system. Note since the facility would meet the maximum velocity 

requirements for IM, the facility would not have to conduct biological monitoring to 

demonstrate compliance with the IM limits. EPA anticipates facilities that already 

employ closed-cycle cooling would document the maximum intake velocity is equal to or 

less than 0.5 feet per second. EPA requests comment on the additional controls to 

address entrapment at facilities that employ closed cycle cooling or other technologies 

with velocity equal to or less than 0.5 feet per second.

§ 122.21(r)(7) Performance studies

Under the proposal, the applicant would submit a description of any biological 

survival studies conducted at the facility and a summary of any conclusions or results, 

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including: site-specific studies addressing technology efficacy, through-plant entrainment 

survival, and other impingement and entrainment mortality studies; studies conducted at 

other locations including a justification as to why the data is relevant and representative 

of conditions at the facility. Due to changes in the water body over time, studies older 

than 10 years mustshould include an explanation of why (or why not) the data is still 

relevant and representative of conditions at the facility. The Director would use such 

studies when assessing the facility’s approach to IM and when establishing technology 

based requirements for EM. Permit applicants are not required to conduct new studies to 

fulfill this requirement. This requirement is rather aimed at obtaining results for studies 

that have already been conducted as part of past permit proceedings or for other purposes.

§ 122.21(r)(8) Operational status

Under the proposal, the applicant would submit a description of the operational 

status of each unit including: descriptions of each individual unit’s operating status 

including age of the unit, capacity utilization for the previous 5 years, and any major 

upgrades completed within the last 15 years (e.g., boiler or condenser replacement, 

changes to fuel type); a description of completed, approved, or scheduled uprates and 

NRC relicensing status for nuclear facilities; a description of plans or schedules for 

decommissioning or replacement of units; and a description of current and future 

production schedules for manufacturing facilities. The Director would use such 

information in determining compliance schedules. Further, such information would be 

used to determine flow reductions due to unit closures, which may affect a facility’s DIF 

or AIF, and therefore may result in changes to a facility’s regulatory status and 
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requirements. Where the remaining useful plant life is considerably shorter than the 

useful life of an EM technology, this information would also be used to support a 

discussion of benefits for that EM technology. 

§ 122.21(r)(9) Entrainment characterization study

Under the proposal, this study would include a plan for collecting entrainment 

mortality data, requires a peer review process, and then requires the owner or operator of 

the facility to carry out the data collection. This study would provide data necessary to 

evaluate EM for that facility. EPA envisions the information already collected to meet 

122.21(r)(4) requirements would be used in developing the Entrainment Characterization 

Study. For all species and life stages identified under the requirements of 122.21(r)(4), 

the owner or operator of the facility would develop and submit an entrainment mortality 

data collection plan for review by the Director. The entrainment mortality data collection 

plan would include: the duration and frequency of monitoring; the monitoring location, 

including a description of the study area and the area of influence of the cooling water 

intake structure(s); a taxonomic identification of the sampled or evaluated biological 

assemblages (including all life stages of fish and shellfish); the organisms to be 

monitored, including species of concern and threatened or endangered species; any other 

organisms identified by the Director; the method in which latent mortality would be 

identified; and documentation of all methods and quality assurance/quality control 

procedures for sampling and data analysis. The proposed sampling and data analysis 

methods must be appropriate for a quantitative survey. 
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The owner or operator of the facility must also provide for peer review of the 

entrainment mortality data collection plan. The Director may consult with Federal, State 

and Tribal fish and wildlife management agencies with responsibility for fish and wildlife 

potentially affected by the cooling water intake structure(s). Further, the Director may 

require the owner or operator of the facility to include additional peer reviewers of the 

plan. EPA expects peer reviewers would have appropriate qualifications (e.g., in the 

fields of biology, engineering, etc.) for the subject matter. An explanation for any

significant reviewer comments not accepted must be included in the final plan 

submission. Additional guidance on conducting peer review may be found in EPA’s Peer 

Review handbook {DCNXX-XXXX],, available online at 

www.epa.gov/peerreview/pdfs/Peer%20Review%20HandbookMay06.pdf. 

The Entrainment Characterization Study would include the following 

components: 

1. Taxonomic identifications of all life stages of fish, shellfish, and any species 

protected under Federal, State, or Tribal Law (including threatened or endangered 

species) that are in the vicinity of the cooling water intake structure(s) and are 

susceptible to entrainment; 

2. Characterization of all life stages of fish, shellfish, and any species protected 

under Federal, State, or Tribal Law (including threatened or endangered species), 

including a description of the abundance and temporal and spatial characteristics 

in the vicinity of the cooling water intake structure(s), based on sufficient data to 

characterize annual, seasonal, and diel variations in entrainment (e.g., related to 

climate and weather differences, spawning, feeding and water column migration). 

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These may include historical data that are representative of the current operation 

of your facility and of biological conditions at the site; and, 

3. Documentation of the current entrainment of all life stages of fish, shellfish, and 

any species protected under Federal, State, or Tribal Law (including threatened or 

endangered species). The documentation may include historical data that are 

representative of the current operation of your facility and of biological conditions 

at the site. Entrainment samples to support the facility’s calculations would be 

collected during periods of representative operational flows for the cooling water 

intake structure and the flows associated with the samples would be documented. 

EPA expects this information would be used to help determine the site-specific 

BTA for EM,. For facilities with no EM technologies, this information would 

characterize the potential for EM. The information would also be used to demonstrate 

that technologies and other measures already in place, or site-specific factors such as 

intake location or design, already reduce EM. For example, abundance data has been 

collected tomay demonstrate lower comparative densities which can significantly lower 

entrainment rates.103 The information could also be used by new units to demonstrate that

alternative technologies or a combination of technologies reduce EM at that site to a level 

commensurate with closed-cycle cooling 

§ 122.21(r)(10) Comprehensive Technical Feasibility and Cost Evaluation Study

Under the proposal, the owner or operator of the facility would submit an 

engineering study of the technical feasibility and incremental costs of candidate 

 

103 See Eddystone site visit report [DCNXX-XXXX] and Oak Creek plant data [DCN 

XX-XXXX].
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entrainment mortality control technologies. The study would include an evaluation of 

technical feasibility of closed-cycle cooling and fine mesh screens with a mesh size of 

2mm or smaller, as well as any other entrainment reduction technologies asidentified by 

the applicant or requested by the Director. This study would include: a description of all 

technologies and operational measures considered (includingwhich could include

alternative designs of closed-cycle recirculating systems including, but not limited to, 

such as natural draft cooling towers, hybrid designs, and compact or multi-cell 

arrangements); documentation of factors other than cost that make a candidate 

technology impractical or infeasible for further evaluation, e.g., space,. For example, a

discussion of land availability, including might include an evaluation of adjacent land 

(including consideration of the availability of alland acres including, but not limited to, 

acrespotentially available due to generating unit retirements, production unit retirements, 

other buildings and equipment retirements, ponds, unused storage areas such as no longer 

active coal piles, rail yards, transmission yards, and parking lots);; decommissioning of 

existing units; repurposing of existing land uses; documentation that insufficient acres are 

available (for power producing facilities);on-site; and considerationevidence that the 

purchase or other acquisition of property adjacent to the facility is not feasible. EPA is 

exploring providing guidance on assessing land availability that might suggest a 

threshold ratio of acres/capcity that could serve as a guideline for when sufficient land 

may not be available. EPA has not identified any electric generating facilities with more 

than the 160 acres per GW capacity that EPA believes would be unable to construct 

retrofit cooling towers and believes that power plants that exceed a given ratio of facility 

size to facility acreage should have ample space to retrofit cooling towers. EPA 
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specifically solicits comment on this ratio, and solicits data for determining whether 

alternative thresholds are more appropriate. 

EPAThe proposed rule would require that costs be presented as the net present 

value (NPV) of the social costs and the corresponding annual value. In addition to the 

required social costs, the owner or operator may choose to provide facility level 

compliance costs, however such costs must be provided and discussed separately from 

social costs. The cost evaluation component of this study would include engineering cost 

estimates of all technologies considered above and also discuss and provide 

documentation of any outages, downtime, energy penalties or other impacts to revenue. 

The cost evaluation would include a discussion of all reasonable attempts to mitigate 

these should be based on least-cost factorsapproaches to implementing each candidate 

technology while meeting all regulatory and operational requirements of the plant. 

Depreciation schedules, interest rates, further consideration of remaining useful life of the 

facility as discussed in 122.21(r)(8), and any related assumptions would be identified.   

The owner or operator of the facility must obtain peer review of the 

Comprehensive Technical Feasibility and Cost Evaluation Study, as described above for 

the Entrainment Characterization Study. EPA expects peer reviewers would have 

appropriate qualifications (e.g., engineering, hydrology, planning and design, etc.) for the 

subject matter. 

§ 122.21(r)(11) Benefits Valuation Study

Under the proposal, the owner or operator of the facility would submit a detailed 

discussion of the magnitude of water quality benefits, both monetized and non-
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monetized, of the candidate entrainment mortality reduction technologies evaluated in 

122.21(r)(8), including 

incremental changes in the numbers of impingement mortality and entrainment 

mortality of fish and shellfish; and identificationmonetization of values assignedthese 

changes to all aquatic species of concern that are affected by the facility's cooling water 

withdrawals, including species harvested by commercialextent appropriate and 

recreational usersfeasible using the best available scientific, engineering, and 

anyeconomic information. This may include monetization using market values, market 

proxies (eg, models based on travel costs or other species that may provide valued 

ecosystem services including nonuse benefitsmethodologies), and stated preference 

methods. Benefits that cannot be monetized should be quantified where feasible and 

discussed qualitatively. The study would also include discussion of recent mitigation 

efforts already completed and how these have affected water quality benefits for the 

facility.fish abundance and ecosystem viability in the intake structure’s area of influence.

Finally, the study would identify other benefits to the environment and the community, 

including improvements for mammals, birds, and other organisms and aquatic habitats. 

The owner or operator of the facility must obtain peer review of the benefits evaluation 

study, as described above for the Entrainment Characterization Study. EPA expects peer 

reviewers would have appropriate qualifications (e.g., biologist, hydrologist) for the 

subject matter. 

§ 122.21(r)(12) Non-water Quality Impacts Assessment

The owner or operator of the facility would submit a detailed discussion of the 

changes in non-water quality factors attributed to technologies and/or operational 

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measures considered. These changes may beinclude, but are not limited to, increases or 

decreases in the following: energy consumption; thermal discharges including an 

estimate of increased facility capacity, operations, and reliability due to reducedrelaxed 

permitting constraints related to thermal discharges; air pollutant emissions including 

particulatesand their health and environmental impacts; noise; safety such as the potential 

for plumes, icing, and availability of emergency cooling water; grid reliability including 

an estimate of changes to facility capacity, operations, and reliability due to cooling water 

availability; consumptive water use: and facility reliability such as production of steam 

and impacts to production based on process unit heating or cooling. The owner or 

operator of the facility would provide for peer review of the Non-water Quality Impacts 

Assessment as described above for the Entrainment Characterization Study. EPA expects 

peer reviewers would have appropriate qualifications (e.g., biologist, safety engineer, 

power engineer, hydrologist) for the subject matter. EPA recognizes that in some cases it 

may be efficient for permit applicants to combine several of the required studies into a 

single document and have them reviewed holistically by a single set of peer reviewers. 

Such an approach is not precluded by the proposed rule as long as the peer review panel 

has the background appropriate to conduct the combined review and the permitting 

authority approves. EPA requests comment on the peer review requirements and the 

level of specificity regarding peer review in the draft rule text.

EPA is aware that specialized experience may be useful or appropriate in 

assessing some of the factors indentified in 122.21(r). EPA solicits comment on further 

guidance or rule language that could assist in the consistent development of these studies 

and more uniform review of these factors by the Director. For example, EPA could 
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establish modeling of plume drift as part of the assessment of icing and safety. This 

requirement could also be included as part of the technical feasibility and costs analysis 

required at 122.21 (r)(10). Similarly, required emissions estimates could be generated 

withinclude more specific criteria under 122.21(r)(11). 

Facilities Demonstrating Flow Reduction Commensurate with Closed-Cycle 

Recirculating System

Under § 125.94(d), new units at existing facilities would be subject to entrainment 

mortality requirements. These facilities may choose to demonstrate that they have 

already reduced actual intake flow (AIF) to a level commensurate with a closed-cycle 

recirculating system in their permit application to meet rule requirements. In general, 

flow reduction may be achieved through the use of a closed-cycle cooling system such as 

a wet cooling tower (mechanical or natural draft), a dry cooling system, variable speed 

pumps, or operational measures such as seasonal reductions in flow. Under today’s 

proposal, each facility would have the flexibility to select the flow reduction technique or 

combinations thereof that best meets their operational needs, so long as the total 

reduction in flow is commensurate with that of a closed-cycle cooling system.104

 

104 The term “commensurate” is intended to be viewed in terms of a reduction in the facility’s actual intake 

flow. The facility’s DIF reflects the maximum volume of water that the facility can withdraw (and would 

be the basis for applicability) but the AIF (based on the facility’s average flows over the previous 3 year 

period) represents the impacts to aquatic communities. Reducing the AIF is the most appropriate approach, 

as it represents actual impacts and is most representative of a facility’s actual operational schedule. EPA 

fully expects, however, that many facilities would construct a closed-cycle cooling system based on its DIF 

to comply with the proposed rule, as this enables the facility to utilize its full DIF at any given time, 

thereby maintaining full operational flexibility. EPA’s costs reflect the costs for the entire DIF. See below 

for more information on how a facility can demonstrate that it has achieved a reduction in flow that is 

commensurate with closed-cycle cooling. 

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For today’s proposal, EPA is clarifying the term “commensurate” in the context 

of flow reductions. EPA examined its record to clarify how a facility could demonstrate 

a reduced flow “commensurate” with a closed-cycle recirculating system. EPA’s record 

demonstrates that for the traditional steam electric utility industry, facilities located in 

freshwater areas (with a salinity of less than 0.5 parts per thousand) that have closedcycle recirculating cooling water systems typically reduce water use by 97.5% percent 

from the amount they would use if they had once-through cooling water systems.105 

Similarly, facilities that have closed-cycle recirculating cooling systems using salt (or 

brackish) water106 typically reduce water usage by 94.9 percent.107 Therefore, if a facility 

selects to demonstrate flow reduction commensurate with closed-cycle cooling using 

flow reduction technologies and controls other than through closed-cycle cooling (e.g., 

through seasonal flow reductions, unit retirements, and other flow reductions), EPA is 

proposing that it would have to demonstrate total flow reductions approximating 97.5% 

for freshwater withdrawals and 94.9% for saltwater withdrawals. Today’s proposal 

includes these criteria in the definition of closed-cycle recirculating systems at § 125.92 

(c). EPA solicits comment on whether to establish these metrics as a binding 

requirement, or whether the determination of what flow measure is commensurate with 

closed-cycle cooling should be left to the Director for each facility. 

EPA expects the Director to carefully consider the approach proposed by the 

facility to ensure that it is reasonable. For example, many facilities have two pumps 

 

105 Assuming a cycle of concentration of 3.0 and a condenser delta T of 20°F. See Section V for more 

information. 

106 Saltwater also includes brackish water, tidal rivers, and estuaries where the water has a salinity of 

equal to or greater than 0.5 parts per thousand (by mass) at a time of annual low flow.

107 Assuming a cycle of concentration of 1.5 and a condenser delta T of 20°F. See Section V for more 

information. 
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installed per unit, but typically only operate one pump at a time. The second pump may 

provide additional pumping capacity (such as may be required in summer) or it may only 

serve as a back-up or for use during maintenance of the main pump. In the former case, 

the facility’s intake flow (both DIF and AIF) should properly account for the pumping 

capacity of both pumps. In the latter, the true flow for the intake structure may be 

equivalent to the pumping capacity of only a single pump.108 Also, EPA is aware that 

some facilities may elect to retire units to demonstrate a reduced flow and wants to 

ensure that such facilities would qualify for this alternative provided they meet the 

applicable requirements.109 EPA is proposing that these credits for unit closures be valid 

for 10 years from the date of the closure.110 EPA believes this approach reasonably 

allows facilities to get credit for flow reductions attributable to unit closures, but also 

requires such facilities to make future progress to ensure its operations reflect best 

available technology to control entrainment controls. EPA is seeking comment on this 

approach. 

Under 125.94(d)(2), EPA would allow facilities to implement technologies other 

than closed-cycle cooling systems that reduce entrainment mortality by at least 90 percent 

of what would have been obtained via flow reduction commensurate with closed-cycle 

cooling under 125.94(d)(1). This compliance provision mirrors the Track II provision of 

 

108 In this scenario, EPA does not envision that a facility would be able to remove the second pump to 

demonstrate a reduction in flow, as the pump is simply redundant equipment and would not reduce the 

overall water withdrawals. 

109 As a point of clarification, EPA notes that flow reduction credit would be available to a facility 

regardless of the rationale for maintaining the reduced flow. In other words, a facility may have ceased 

operation of a unit for reasons other than today’s proposed regulation, and as such, withdraws much less 

water than before. Nevertheless, the net effect is that entrainment would be reduced. 110 Some facilities have intake systems for units that have not operated for an extended time period. These 

units have essentially ceased operations; such facilities may include the pumping capacity associated with 

these units in their DIF even though it may not accurately represent their actual operations (i.e., it may be 

inappropriate to consider these units under 125.94(c)(5)(ii)). 
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the Phase I rule, and is intended to provide opportunities for facilities to consider 

technologies such intake relocation or fine mesh screens, or operational measures such as 

the recyle and reuse of cooling water for other purposes. Further, facilities could adopt a 

combination of such technologies and practices, provided the facility can demonstrate 

reductions in entrainment mortality of 90 percent or better as compared to closed-cycle 

cooling. EPA seeks comment on this provision.

E. When Are Application Studies Due? 

EPA recognizes that facilities previously subject to the withdrawn Phase II rule 

(existing electric generating facilities with a DIF greater than 50 MGD) should have 

already compiled much of the proposed application information and expects that these 

data would be used to meet many of the requirements under today’s proposal. In some 

cases the information may have been collected, but reports may not have been generated 

or finalized. EPA also understands that many other facilities may not have collected this 

information, e.g., smaller power plants and manufacturers, and in those cases facilities 

would have to initiate new data collection efforts. For this reason, EPA is proposing two 

different timelines for application submittal, as illustrated in Exhibits IX-1 and IX-2. 

EPA is proposing that facilities previously subject to the Phase II rule would be required 

to submit some application studies six months after rule promulgation. Other studies 

would follow in sequence over a period of time not to exceed five years. Other existing 

facilities not previously subject to the withdrawn Phase II rule (e.g., small power plants 

and all existing manufacturers) would begin submitting application studies three years 

after rule promulgation. Additional required studies would be submitted over a period 

not to exceed seven years and six months. EPA believes that these proposed schedules 
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will afford facilities ample time to plan, complete, and submit application materials as 

well as provide Directors time to evaluate the submissions and develop appropriate 

permit conditions. These schedules are linked to the effective date of the rule in order to 

establish a level playing field and to avoid delays implementing the rule regardless of a 

facility’s current permit status. EPA solicits comment on the proposed schedule, and 

specifically seeks comment and data on the appropriate amount of time to collect data, 

write reports, conduct peer reviews, obtain comment, provide for public participation, 

and issue final permit conditions. 

Exhibit IX-1: Application Requirements and Due Dates for Initial Permit Term* - 

Power Plants with DIF of 50 MGD or more Application Requirement and Submittal Date 

Submittal 

Date

(all dates from 

rule 

promulgation) 

Existing Facility Category

Power Plants with DIF of 50 MGD or more 

6 months § 122.21(r)(2) Source water physical data 

§ 122.21(r) (3) Cooling water intake structure data 

§ 122.21(r) (4) Source water baseline biological characterization data 

§ 122.21(r) (5) Cooling water system data 

§ 122.21(r) (6) Proposed IM reduction plan 

§ 122.21(r) (7) Performance studies 

§ 122.21(r) (8) Operational status 

AIF>125 MGD and facilities with new units: 

§ 122.21(r) (9) Entrainment characterization study:(i) EM plan with peer 

reviewers identified

1 year AIF>125 MGD and facilities with new units: 

§ 122.21(r) (9) Entrainment characterization study:(ii) peer reviewed EM 

plan and (iii) implement EM plan

3 years N/A

3.5 years § 122.21(r) (6) Proposed IM reduction plan results

4 years AIF>125 MGD and facilities with new units: 

§ 122.21(r) (9) Entrainment characterization study: (iii) completed study

5 years AIF>125 MGD and facilities with new units: 

§ 122.21(r) (10) Comprehensive technical feasibility and cost evaluation 

study 

§ 122.21(r) (11) Benefits valuation study

§ 122.21(r) (12) Non-water quality and other environmental impacts study

*Subsequent Permit Terms

After the initial submission of the §122.21(r) application studies, the owner or operator of a 

facility may submit a request to reduce the information required, if conditions at the facility and 

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in the waterbody remain substantially unchanged since the previous application such that 

relevant previously submitted information remains representative of current source water, intake 

structure, cooling water system, and operating conditions. The request for reduced information 

requirements must be submitted to the Director at least one year prior to the expiration of its 

NPDES permit. The Director may accept or reject any part of the request. (See § 125.95(c)). 

For subsequent permit terms, information collection activities required under §122.21(r) must 

begin no later than eighteen months prior to permit expiration (see § 125.95(d)). 

For subsequent permit terms, all permit application materials are expected to be submitted to the 

Director with the application for permit renewal at least 6 months prior to permit expiration.

Exhibit IX-2: Application Requirements and Due Dates for Initial Permit Term* - 

Other Existing Facilities with DIF > 2 MGD Application Requirement and Submittal Date 

Submittal 

Date

(all dates from 

rule 

promulgation) 

Existing Facility Category

Other Existing Facilities with DIF > 2 MGD 

3 years § 122.21(r)(2) Source water physical data 

§ 122.21(r) (3) Cooling water intake structure data 

§ 122.21(r) (4) Source water baseline biological characterization data 

§ 122.21(r) (5) Cooling water system data 

§ 122.21(r) (6) Proposed IM reduction plan 

§ 122.21(r) (7) Performance studies 

§ 122.21(r) (8) Operational status 

AIF>125 MGD and facilities with new units: 

§ 122.21(r) (9) Entrainment characterization study:(i) EM plan with 

peer reviewers identified

3.5 years AIF>125 MGD and facilities with new units:

§ 122.21(r) (9) Entrainment characterization study:(ii) peer reviewed 

EM plan and (iii) implement EM plan

4 years N/A

5 years N/A

6 years § 122.21(r) (6) Proposed IM reduction plan results

6.5 year AIF>125 MGD and facilities with new units: 

§ 122.21(r) (9) Entrainment characterization study: (iii) completed 

study

7.5 years AIF>125 MGD and facilities with new units: 

§ 122.21(r) (10) Comprehensive technical feasibility and cost 

evaluation study 

§ 122.21(r) (11) Benefits valuation study

§ 122.21(r) (12) Non-water quality and other environmental impacts 

study

*Subsequent Permit Terms

After the initial submission of the §122.21(r) application studies, the owner or operator of a 

facility may submit a request to reduce the information required, if conditions at the facility 

and in the waterbody remain substantially unchanged since the previous application such that 

relevant previously submitted information remains representative of current source water, 

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intake structure, cooling water system, and operating conditions. The request for reduced 

information requirements must be submitted to the Director at least one year prior to the 

expiration of its NPDES permit. The Director may accept or reject any part of the request. 

(See § 125.95(c)). 

For subsequent permit terms, information collection activities required under §122.21(r) must 

begin no later than eighteen months prior to permit expiration (see § 125.95(d)). 

For subsequent permit terms, all permit application materials are expected to be submitted to 

the Director with the application for permit renewal at least 6 months prior to permit 

expiration. 

F. What Are the Monitoring Requirements in Today’s Proposal for Existing 

Facilities?

1. Monitoring Requirements for Impingement Mortality 

Today’s notice proposes impingement mortality requirements for all existing 

facilities. As such, facilities would be required to monitor to demonstrate compliance 

with the impingement mortality restrictions at § 125.94(b)(1), demonstrating a monthly 

average of fish impingement mortality of 31% or less, and an annual average, defined 

here as the average for all measurements taken during the preceding 12-month period 

(i.e., a 12-month “rolling” average), of 12% or less. (TheDifferent monitoring 

requirements apply for compliance with the alternative requirements at § 125.94(b)(2) for 

design intake velocity; these are discussed in a later section.) To demonstrate compliance 

with the impingement mortality standards at § 125.94(b)(1), the facility would be 

required to monitor at a frequency specified by the Director. EPA assumes the facility 

would monitor no less than once per week during primary periods of impingement as 

determined by the Director, and no less than biweekly during all other times. For each 

monitoring event, the facility would determine the number of organisms that are collected 

or retained on a 3/8 inch sieve (i.e., that are impinged [I]), and the number that die within 

24 - 48 hours of impingement (i.e., impingement mortality [IM]). Fish that are included 
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in any carryover from a traveling screen or removed from a screen as part of debris 

removal would be counted as fish impingement mortality. Under the proposed definition 

at 125.92(b), naturally moribund fish and invasive species would be excluded from the 

totals for both impingement and impingement mortality. The percentage of impingement 

mortality is defined by the following equation: 

% ܯܫ ൌ ൬

ܯܫ

ܯܫ െ ܫ൬ ൤െ 100 ݔ ൰ ܫ

ܫ ൰ܺ 100൨

For each calendar month, the facility would calculate the arithmetic average of 

the percentage impingement mortalities observed during each of the sampling events. 

For example, if a facility conducted four sampling events in December, it would calculate 

the monthly average from the weekly values. If a facility’s calculated monthly average is 

less than the monthly average limitation, (31%), then it would be in compliance that 

month. To demonstrate compliance with the annual average limit, the facility would 

calculate the arithmetic average of all of its sampling events during the year. If the 

facility’s calculated annual average percentage impingement mortality is less than the 

annual average limitation, then it would be in compliance. By requiring the facility to 

recalculate its rolling average percentage impingement mortality for each monthly 

monitoring report, each facility is assured that it will be aware of its compliance status 

with the annual average limitation and can quickly recognize when issues with 

compliance may have arisen. 

 EPA envisions that the permitting authority would review and approve the 

Impingement Mortality Reduction Plan including the frequency and duration of 

monitoring, the monitoring location, the organisms to be monitored, and the method in 

which naturally moribund organisms would be identified and taken into account. In 
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establishing the monitoring requirements, EPA expects facilities and permitting 

authorities would consider whether data collection should cover the entire daily and 

(where appropriate) tidal cycles. Typically, facilities have collected impingement 

samples continuously for 6 or 8 hours, and repeated this cycle to cover an entire 24-hour 

period. Stratifying collection in this manner allows an analysis of the diel variation 

exhibited by many aquatic organisms. Today’s proposal requiresEPA expects that 

facilities would continue to conduct sampling in such a manner to account for diel 

variations, where appropriate. EPA also expects the plan would ensure that sampling 

occurs during periods of representative flow and not during periods of non-peak flow or 

scheduled outages. The sampling plan would cover all five years of the permit term. 

 EPA is not proposing a list of the species to be monitored due to the site-specific 

nature of the biological organisms impacted by an intake structure. Rather, EPA is 

proposing that a facility provide data on the composition of all species in its waterbody as 

part of its NPDES permit application (information from the source water baseline 

characterization data required at § 122.21(r)(4) and impingement plan at § 125.95(b)) to 

help inform the Director’s determination of the species that would be monitored for 

compliance with the proposed impingement mortality limitations. In addition, the 

permitting authority may impose additional monitoring requirements such as 

consideration of threatened or endangered species, as appropriate. EPA is also not 

including provisions for reducing the monitoring frequency in the future; given that the 

source waterbody may change over time (including hosting different or increased 

numbers of individuals or species), EPA believes that weekly monitoring at a minimum is 

appropriate.
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 The ideal point to measure impingement mortality is the location where 

organisms are returned to the waterbody. However, for ease of sampling and access, 

EPA envisions most facilities would collect samples from the fish return system(s) at 

some point prior to the fish return discharge point.111 Based on the studies in EPA’s 

database, EPA envisions facilities would either 1) divert some or all of the flow from the 

fish return into a fish collection and holding area or 2) place a net or debris basket fitted 

with 3/8” mesh spacing in the fish return and collect and transfer the retained organisms 

to a holding tank. Facilities would handle the organisms in the collection device as little 

as possible and transfer them to a holding area with conditions as close as practicable to 

the source water. Facilities would count the number of living organisms in the holding 

area and subsequently hold the sample using proper technique112 to maintain the health of 

the collected organisms.113 At a time period of 48 hours after the initial collection, the 

facility would count the number of dead organisms. The facility would then determine 

the percentage of organisms that died after 48 hours in comparison to the total number of 

living organisms measured initially. Any organisms not collected by the fish handling 

and return system, such as organisms in the carryover of a traveling screen or organisms 

collected by a high pressure wash and sent to debris bins, would be counted as 100% 

mortality. Naturally moribund organisms would be excluded from the calculation. The 

 

111 Based on EPA’s site visits and other data, even facilities with multiple intakes (and multiple screens, 

etc.) typically only have one fish handling and return system. This is consistent with EPA’s proposed 

approach to determine compliance at the facility level. For facilities with more than one return system 

(including those that are bi-directional in tidal waters), compliance is still determined at the facility level. 112 EPA recognizes that there are no standard methods for conducting impingement and entrainment studies 

and that there can be variability in designing a sampling plan between sites. However, there are elements 

that should be incorporated into any sampling plan, as outlined in DCN [10-xx].6708. 113 Facilities that divert the flow directly would similarly pass the flow through a net or debris basket fitted 

with 3/8” mesh spacing or would only count organisms that would have been collected with such a basket 

or net. 
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facility would keep records of this information and subsequently compare its result to 

today’s proposed impingement mortality limitations. 

 EPA requests comment on all aspects of these monitoring requirements. 

In particular, EPA requests comment on whether EPA should specific minimum sampling 

frequencies or leave this determination to the Director. EPA also requests comment on 

methods for evaluating latent mortality effects resulting from impingement. EPA’s 

record demonstrates that a holding time of no more than 48 hours is optimal for 

evaluating the latent mortality associated with impingement while at the same time 

minimizing mortality associated with holding the organisms. In the majority of recent 

studies, 48 hours appears to be the standard holding time. EPA specifically requests 

comment and supporting data on whether it should: specifically establish 48 hours after 

initial impingement as the time at which to monitor impingement mortality; allow a range 

such as 24 to 48 hours; establish 24 hours as the standard holding time; or adopt some 

other technique for standardizing results. EPA also requests comment on whether 

survival under monitored holding conditions as discussed above is reflective of survival 

in the wild and thus an appropriate measure of the impingement mortality achieved by the 

facility. 

 As explained in Section VI, the impingement mortality restrictions proposed 

today are based on the operation of a modified coarse mesh traveling screen with a fish 

return. Because EPA wants to ensure that a facility’s monitoring plan is consistent with 

the technical basis for today’s restrictions, EPA is proposing to require facilities to pass 

theirmonitor impingement mortality samplesusing a sample that has been passed through 

a sieve or net with a 3/8” mesh size, so that only organisms that do not pass through this 
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mesh size are counted.

114 In doing so, facilities would only retain (and therefore count) 

organisms that would have been impinged on a coarse mesh screen, which was the 

technological basis used for developing the proposed impingement mortality limits.115 

Facilities could similarly apply a “hypothetical net” in that they could elect to only count 

organisms that would not have passed through a net with 3/8” mesh. For example, a 

facility that uses a fine-mesh screen or diverts the flow directly to a sampling bay would 

only need to count organisms that could be collectedwould remain if the flow passed 

through a net, screen, or debris basket fitted with 3/8” mesh spacing. EPA further 

believes the IM restrictions could be applied to other screen-based fish protection 

technologies, and allows for future better performing technologies. EPA solicits comment 

on this approach to measuring impingement mortality. EPA specifically solicits 

comment on ways to ensure that the procedures used to collect and analyze samples do 

not inadvertently lead to greater mortality than would occur among organisms that were 

returned to the water body without being sampled.

If the Director has approved a plan for compliance with the velocity requirements 

specified in § 125.94(b)(2) and the facility has documented a maximum design intake 

flow for the intake equal to or less than 0.5 feet per second, there are no compliance 

monitoring requirements. If the facility cannot document a design intake flow for the 

intake equal to or less than 0.5 feet per second under all conditions, including during 

 

114 See section 3 for a discussion of how EPA has changed its view of screen mesh size. EPA recognizes 

that fine mesh screens may simply “convert” smaller organisms that previously would have passed through 

the screen to impinged organisms. 

115 EPA’s analysis of impingement survival rates is based on data from facilities with coarse mesh screens; 

these limits may be applied differently at facilities with smaller mesh size. Therefore, these limits do not 

provide a disincentive to facilities from using finer-meshed screens (i.e., screens with a mesh opening 

smaller than 3/8”) on their traveling screens. As long as the organisms that are large enough to have been 

impinged upon a coarse mesh screen achieve the required survival rates, the facility would be considered to 

meet the impingement mortality requirements. 
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minimum ambient source water surface elevations (based on the Director’s judgment 

using hydrological data) and maximum head loss across the screens, the permit must 

require compliance monitoring for intake velocity to demonstrate the intake velocity is 

consistent with the requirements of § 125.94(b)(2). The frequency of monitoring would 

be no less than twice per week. In this circumstance facilities would not be subject to the 

impingement mortality monitoring requirements otherwise specified in § 125.96(a)(1) 

and (2). EPA requests comment on whether it should specify a minimum frequency for 

intake velocity monitoring or leave this determination to the Director.

EPA notes the proposed rule does not specify the owner or operator of a facility 

with a cooling water intake structure that supplies cooling water exclusively for operation 

of a wet or dry cooling tower(s) and that meets the definition of closed-cycle recirculating 

system at § 125.92(c) is deemed to meet this impingement mortality standard. This is 

because the largest facilities with closed cycle cooling still have the potential to withdraw 

100 MGD or more in makeup water. EPA’s record shows virtually all facilities with wet 

cooling towers have a maximum intake velocity of 0.5 feet per second. EPA expects a 

facility that operates a cooling tower would be able to demonstrate the maximum design 

withdrawintake velocity does exceed 0.5 feet per second, and the proposed rule already 

provides that such facilities do not have any additional monitoring requirements for 

impingement mortality. 

2. Monitoring Requirements for Entrainment Mortality 

Existing Facilities

Whenever the Director is establishing entrainment control, monitoring 

requirements must also be developed. As proposed, the permit application studies at § 
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122.21(r) would be required for each permit renewal. EPA expects the Director would 

use these studies, including the Entrainment Characterization Study at § 122.21 (r)(9), as 

a basis for any additional monitoring requirements for entrainment mortality. 

New Units at Existing Facilities

Under § 125.96(c), existing facilities with new units would be required to conduct 

compliance monitoring to demonstrate flow reductions consistent with the requirements 

of § 125.94(d)(1) and (2).), or equivalent I&E reductions. For facilities required to 

demonstrate flow reductions consistent with the requirements of § 125.94(d)(1), the 

frequency of monitoring would be no less than once per week and would be 

representative of normal operating conditions. Flow monitoring would include 

measuring cooling water withdrawals, make-up water, and blowdown volume. The 

Director may require additional monitoring necessary to demonstrate compliance with 

both § 125.94(d) as well as any more stringent standards under § 125.94(f). 

To meet requirements under § 125.94(d)(1), EPA expects facilities would first 

measure AIF in order to establish a site-specific baseline prior to installing any new 

technologies or employing new operational measures. EPA has defined AIF as the 

average volume of water withdrawals on an annual basis over the past three calendar 

years (see § 125.92(a)). Facilities would then conduct flow monitoring which would

include measuring cooling water withdrawals, make-up water, and blowdown volume. 

The Director may require additional monitoring necessary to demonstrate compliance 

with § 125.94(d). These flows would be used to document the facility has minimized 

make-up and blowdown flows.
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To meet requirements under § 125.94(d)(2), facilities would again measure AIF in

order to establish a site-specific baseline prior to installing any new technologies or 

employing new operational measures. The facility would also measure the density of 

entrainable organisms (ED) at a proximity to the intake that is representative of the 

entrainable organisms present in the absence of the cooling water intake structure and is 

representative of annual average abundance. For the purpose of today’s rule, entrainable 

is defined as any organism that passes through a 3/8 inch sieve. As discussed in Section 

VI, this would avoid any confusion as to which organisms would be subject to which 

standards. Facilities would also monitor the latent entrainment mortality in front of the 

intake structure. Entrainable organisms passing the cooling water intake structure would 

be counted as 100 percent entrainment mortality unless the facility demonstrates to the 

approval of the Director that the mortality for each species of concern is less than 100 

percent. Samples would be collected at a minimum to monitor each species of concern or 

other species as required by the Director over a 24-hour period. Samples would be 

collected no less than biweekly during the primary period of reproduction, larval 

recruitment, and peak abundance identified during the source water baseline 

characterization required under § 122.21(r)(4). Samples would be representative of the 

cooling water intake when the structure is in operation. In addition, sufficient samples 

would be collected to allow for calculation of annual average entrainment levels. The 

sampling would measure the total count of entrainable organisms or density of 

organisms, unless the Director approves of a different metric for such measurements. In 

addition, facilities would monitor the AIF for each intake. The AIF would be measured at 
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the same time as the samples of entrainable organisms are collected., and to circumvent 

the issue of “converts” and impinged entrainables. 

The following equation illustrates how to calculate a baseline level of entrainment 

(EB): 

EB = ED × AIF 

Performance commensurate with a closed-cycle cooling system (EBTA) can 

therefore be determined by reducing EB by the percentage of flow reduced through the 

use of a closed-cycle cooling system. For example, a facility withdrawing makeup water 

from a freshwater source (as described above, would achieve a reduction of 97.5 percent) 

would calculate its performance as: 

EBTA = (EB) × (100-97.5) ÷ 100 

The resulting value, EBTA, is the required level of entrainment performance (as 

measured by entrainment mortality). The facility could implement any combination of 

flow reduction, technologies, and operational measures to meet the required level of 

entrainment performance. For example, a facility withdraws 200 MGD AIF from a 

freshwater river. The annual average entrainment density in the proximity of the intake 

structure is 6,400 organisms per 100 cubic metermeters withdrawn. 

EB = ED × AIF 

6,400 organisms/100m3

 x (100m3/ 26,417 gallons) × 200,000,000 gallons per day 

= 48 million organisms per day 

The required level of performance is a maximum entrainment mortality offor a 

closed-cycle cooling system is thus 

EBTA = (EB) × (100-97.5) ÷ 100 
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= (48 x 109106 organisms per day) × (100-97.5) ÷ 100 

= 1.2 x 109106 organisms. 

For facilities required to demonstrate reductions consistent with the requirements 

of § 125.94(d)(2), facilities would monitor entrainable organisms that pass through a 3/8-

inch sieve at a proximity to the intake that is representative of the entrainable organisms 

in the absence of the intake structureThe minimum required level of performance for 

demonstrating entrainment mortality at a comparable level (EC) to a closed-cycle cooling 

system is the level corresponding to 90 percent116 of the reduction that a facility with a 

closed-cycle cooling system could achieve:

EC = (EB) × (100-(97.5 x .9)) ÷ 100

= (48 x 106 organisms per day) × (100-(97.5 x .9)) ÷ 100 

= 5.9 x 106 organisms.

The Director may require additional monitoring necessary to demonstrate 

compliance with both § 125.94(d) as well as any more stringent standards under § 

125.94(f).

EPA requests comment on all aspects of these monitoring requirements. EPA 

specifically requests comment on whether it should specify minimum monitoring 

frequencies or leave this to the determination of the Director.

. Facilities would also monitor the latent entrainment mortality in front of the 

intake structure. Mortality after passing the cooling water intake structure would be 

counted as 100 percent mortality unless the facility demonstrates to the approval of the 

 

116 § 125.86 specifies “reduced both impingement mortality and entrainment of all life stages of fish and 

shellfish to 90 percent or greater of the reduction that would be achieved through § 125.84(b)(1) and (2).” 
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Director that the mortality for each species of concern is less than 100 percent. Samples 

would be collected at a minimum to monitor each species of concern or other species as 

required by the Director over a 24-hour period. Samples would be collected no less than 

biweekly during the primary period of reproduction, larval recruitment, and peak 

abundance identified during the source water baseline characterization required under § 

122.21(r)(4). Samples would be representative of the cooling water intake when the 

structure is in operation. In addition, sufficient samples would be collected to allow for 

calculation of annual average entrainment levels. The sampling would measure the total 

count of entrainable organisms or density of organisms, unless the Director approves of a 

different metric for such measurements. In addition, facilities would monitor the AIF for 

each intake. The AIF would be measured at the same time as the samples of entrainable 

organisms are collected. The Director may require additional monitoring necessary to 

demonstrate compliance with both § 125.94(d) as well as any more stringent standards 

under § 125.94(f).

Visual or remote inspections – all existing facilities

All facilities would either conduct visual inspections or employ remote 

monitoring devices during the period the cooling water intake structure is in operation. 

The facility would conduct such inspections at least weekly to ensure that any 

technologies installed to comply with § 125.94 are maintained and operated to ensure that 

they will continue to function as designed. EPA is aware that for some facilities, this 

requirement could pose a feasibility challenge (i.e. ice cover during the winter season, 

inability of divers to see through more than a few inches of water, or certain intakes 

located in deep water during rough weather). The proposed rule therefore authorizes the 
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Director to establish alternative procedures during periods of inclement weather. EPA 

solicits comment and data on this provision. EPA specifically requests comment on 

whether it should establish minimum frequencies for inspections, or leave this to the 

determination of the Director.

G. What Reports Would I Be Required To Submit?

1. Status Reports 

 Facilities that establish a compliance schedule (under § 125.93) would submit (at 

a minimum) quarterly status reports as to the progress of the facility towards meeting the 

terms of the compliance schedule and the applicable limits. These reports may include 

updates on biological monitoring, technology testing results, construction schedules, or 

other appropriate topics. 

2. Monitoring Reports 

 As described above, facilities would have ongoing impingement mortality 

monitoring requirements; some facilities would also have entrainment mortality 

monitoring requirements. The proposed monitoring activities are similar to monitoring 

required for other effluent discharges already included in NPDES permits. Facilities 

would be required to include impingement mortality monitoring reports with their 

Discharge Monitoring Reports (DMRs) (or equivalent) and their permit annual report to 

the Director. As described at § 125.97, those reports would be required to include: 

• the compliance measurement location; 

• identification of species of concern; 
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• counts and percentage mortality of organisms sampled, as well as the average for 

all measurements taken during the preceding 12-month period (i.e., a 12-month 

“rolling” average); 

• time period for evaluating latent mortality effects; 

• intake velocity measurements, as appropriate, to determine compliance with the 

design intake velocity requirement of 0.5fps or less; and 

• any other monitoring requirements specified in the permit. 

The Director would evaluate these reports for compliance with monthly and annual 

impingement mortality limits, velocity limits, and other permit requirements where 

appropriate. 

 For facilities that require entrainment mortality controls, the Director would 

require ongoing entrainment mortality flow monitoring. Facilities would be required to 

include entrainment mortality flow monitoring reports with their DMRs (or equivalent) 

and their annual report to the Director. Those reports would be required to include: 

• the compliance measurement location; 

• a description of the flow monitoring procedure; 

• documentation of flow reductions; and 

• any other monitoring requirements specified in the permit. 

The Director would evaluate these reports for compliance with monthly entrainment 

mortality limits, flow reductions and flow monitoring, and permit requirements as 

required. 

3. Annual Certifications 
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Today’s proposal would require a facility to submit an annual certification 

statement signed by the responsible corporate officer. This statement would indicate 

each technology is being maintained and operated as set forth in its permit, or a 

justification to allow modification of the practices listed in the facility’s most recent 

annual certification. If the Director has approved impingement mortality or entrainment 

mortality compliance alternatives, the statement would specify the information submitted 

in the most recent annual certification is still valid and appropriate, or provide a 

justification to allow modification of the practices listed in the most recent annual 

certification. For example, the statement would include data and information 

documenting compliance with the requirement in § 124.94(d)(1) that flow commensurate 

with a closed-cycle recirculating system is met. If the Director has approved the IM 

maximum intake velocity compliance alternative and the facility cannot document a 

design intake velocity for the intake equal to or less than 0.5 feet per second, the 

statement would include data and information documenting compliance with the 

maximum allowable intake velocity. 

(3) If the information contained in the previous year’s annual certification is still 

applicable, the statement would simply state as such and, along with any applicable data 

submission requirements specified in this section, would constitute the annual 

certification. However, if the facility has substantially modified its operation inof any 

wayunit that impacts cooling water withdrawals or operation of cooling water intake 

structures, it would submit revisions to the information required in the permit application. 

H. What Records Would I Be Required to Keep?
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 As described at § 125.97(d), facilities would be required to keep all application, 

status, monitoring, and annual reports and related supporting information and materials 

for a minimum of 5 years, but facilities may wish to keep records for a longer period to 

maintain a complete regulatory history of the facility. For example, existing source water 

biological studies submitted with a facility’s permit application may contain data that has 

been collected within the past 10 years. The proposed rule requires that records be kept 

from the preceding permit term when the Director has approved a request for reduced 

information collection in the permit application. The Director may establish additional 

record keeping requirements in the permit, such as additional records documenting the 

EM determination and related compliance monitoring or data collection. 

I. Are There Other Federal Statutes that Could Be Incorporated into a 

Facility’s Permit?

EPA’s NPDES permitting regulations at § 122.49 contain a list of Federal laws 

that might apply to Federally-issued NPDES permits. These include the Wild and Scenic 

Rivers Act, 16 U.S.C. 1273 et seq.; the National Historic Preservation Act of 1966, 16 

U.S.C. 470 et seq.; the Endangered Species Act, 16 U.S.C. 1531 et seq.; the Coastal Zone 

Management Act, 16 U.S.C. 1451 et seq.; and the National Environmental Policy Act, 42 

U.S.C. 4321 et seq. See § 122.49 for a brief description of each of these laws. In 

addition, the provisions of the Magnuson-Stevens Fishery Conservation and Management 

Act, 16 U.S.C. 1801 et seq., relating to essential fish habitat might be relevant. Nothing 

in this proposal would authorize activities that are not in compliance with these or other 

applicable Federal laws (e.g., Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., 

and Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.). 
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J. What is the Director’s Role Under Today’s Proposal?

 Under today’s proposed rule, the Director would need to review all materials 

submitted by an existing facility with its permit application each permit term to determine 

appropriate NPDES permit requirements for impingement mortality, entrainment 

mortality for new units at existing facilities, and site-specific entrainment mortality, as 

necessary. The Director is encouraged to provide any comments expeditiously on 

submitted materials so the facility can make responsive modifications to its information 

gathering activities. More specific responsibilities are described below: 

(1) The Director would review materials to determine compliance with the 

applicable requirements. The proposed rule also provides some discretion to the Director 

to waive the submittal requirements under certain conditions. First, if the facility already 

has closed-cycle cooling, the Director can reduce the submission requirements. 

SecondFirst, if the circumstances at the facility have not changed after a five year permit 

cycle, the Director can reduce the submission requirements. ThirdSecond, if the Director 

has made a BTA determination prior to the effective date of the rule, and substantially the 

same information was already submitted and considered by the Director in making that 

determination, the Director can reduce the submission requirements. To clarify further, 

EPA has included a “transition” provision in the submission requirements of today’s 

proposed rule that makes it clear that for any facility that has submitted a permit 

application before the effective date of the regulation, the Director can select the best 

approach to permit development and implementation. These provisions are further 

intended to avoid any unnecessary delay in recently issued permits. EPA expects 
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facilities would continue with any monitoring requirements, study requirements, and 

compliance schedules in recently issued permits. 

(2) If the Director establishes an alternate schedule under § 125.93, the Director 

would establish a schedule that is as expeditious as possible, but does not extend beyond 

the dates specified in § 125.93. In establishing the schedule, the Director is encouraged 

to consider the extent to which those technologies proposed to be implemented to meet 

the requirements of § 125.95(c) and/or (d) will be used, or may otherwise affect a 

facility’s choice of technology(ies), to meet the requirements of § 125.95(b). Impacts of 

thermal discharges, along with other stressors, aremay be a relevant consideration when 

assessing appropriatebenefits of technologies to reduce impacts of cooling water intakes 

or discharges, as the Director may identify technologies that reduce impacts from 

multiple stressors. See EEA for more information. The Director is also encouraged to 

consider energy reliability and grid requirements when establishing a schedule for 

electric power generating facilities. The Director may consult with local and regional 

electric power agencies when establishing a schedule for electric power generating 

facilities. The Director may determine that extenuating circumstances (e.g., lengthy 

scheduled outages, future production schedules) warrant establishing a different 

compliance date for any manufacturing facility. 

(3) The Director would review and approve the species of fish and shellfish 

identified as species of concern. 

 (4) The Director would review and approve the site-specific impingement 

mortality plan including the duration and frequency of any monitoring beyond the 

minimum specified by the rule, the monitoring location, the organisms to be monitored, 
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and the method in which naturally moribund organisms would be identified and taken 

into account. EPA solicits comment on whether the Director should review, but not 

approve, the identified plans. 

(5) The Director would review the permit application materials and studies 

submitted under § 122.21(r) on a case-by-case basis and determine which entrainment 

requirements are necessary. 

(6) The Director would review and approve the site-specific entrainment mortality 

sampling plan for new units at existing facilities (other than those employing closed cycle 

cooling) including the duration and frequency of monitoring, the monitoring location, the 

organisms to be monitored, and the method in which latent mortality would be identified. 

EPA solicits comment on whether the Director should review, but not formally approve, 

the identified plans. 

(7) The Director would issue a written explanation for the BTA determination and 

make this determination , and any other information submitted by third parties, available 

along with the draft permit for public review. EPA intends to enhance transparency of 

permitting under this proposed rule by making the information collected under 122.21(r), 

as well as timely relevant information submitted by third parties, be made available to the 

public as part of the permtting process to the degree allowed by law, along with the 

Director’s written determination. This determination is discussed in more detail in 

Section VI. above. In addition, the following discussion guides the Director when 

considering cost-benefit analysis for permit determinations. 

Social Cost-Benefit Analysis for Permit Determinations
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In deciding whether and which technology to require a permittee to install to 

address entrainment mortality, the Director may undertake aan evaluation of social cost 

benefit analysiscosts and benefits of implementing such requirements. This analysis 

would be based on the information submitted by the applicant, supplemented by 

information submitted by third parties, and additional information as determined 

appropriate by the Director. EPA recognizes the resource limitations faced by permitting 

authorities and does not generally expect that the Director would develop additional 

information on which to base the evaluation of social benefits and costs, though the 

Director may opt to do so. This analysis should differ from other permit submission 

requirements in 122.21(r) as described below, principally by beingevaluate benefits and 

costs from the perspective of society as a whole (social costs and benefits), and not 

simply the facility (facility’s compliance costs and benefits within the vicinity of the 

intake or intake’s area of influence).. 

A number of cost elements should be accounted for in assessing the social cost of 

entrainment technology implementation. These are summarized below. 

• Technology installation cost. These peer reviewed engineering cost 

estimates of the physical construction of a closed cycle recirculating 

system and alternativecandidate entrainment technologies at the facility 

are required in section 122.21(r)(10). These costs would enter a social 

cost analysis unchanged frombe provided by the calculation 

madeapplicant under 122.21(r)(10). 
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• Installation downtime cost. Installation of closed cycle cooling systems 

will often require generating facilities to take additional downtime beyond 

ordinary annual maintenance downtime. An estimate of downtime cost to 

the facility is required under 122.21(r)(10), but using this value in a social 

cost framework would result in an overestimated cost. Under the social 

cost framework the forgone electricity production during this downtime 

will need to be made up by other generating units and this production 

would typically occur at higher cost than required by the permittee’s 

offline unit(s). For the assessment of social cost, the amount by which the 

cost of this make-up electricity production exceeds the cost otherwise 

incurred by the permittee’s generating units is the appropriate measure of 

social cost.). Downtime costs include the value of lost production minus 

any variable cost savings, as well as any other costs to the facility 

associated with downtime (shutdown and startup routines, special 

maintenance protocols, etc) minus any savings associated with downtime. 

• Energy penalty cost. Operation of closed cycle cooling systems generally 

imposes an energy penalty, which means additional energy input is 

required to generate the same quantity of electricity otherwise available 

for sale to end-use consumers. Again, an assessment of these costs to the 

facility would be determined under the section 122.21(r)(10) 

demonstration, but the use of these cost values in a social cost framework 

would result in an incorrect inference. The social cost concept being that 

the additional energy input and “make-up” for lost generation may occur 
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at the permittee’s facility, if the facility has sufficient capacity to offset 

this loss, or at other facilities, if the facility does not have sufficient 

capacity to make up the loss. For the social cost analysis, the appropriate 

cost measure is the amount by which the cost of this make-up electricity 

production exceeds the cost otherwise incurred by the permittee’s 

generating units. For the analysis of technology affordability, the 

appropriate cost measure is the cost of additional energy inputs at. The 

appropriate cost measure is the cost of additional production costs to the 

facility, if the permittee’s facility has sufficient capacity to make up the 

lost electricity production, or the net revenue loss to the permittee, if the 

permittee’s facility cannot make up the lost electricity production. 

• Operation and maintenance costs for the entrainment technology 

equipment. The cost of energy to operate the entrainment technology for 

electric generators would be accounted for in the assessment of energy 

penalty costs and should not reappear in the O&M costs. These cost 

which would be estimated as part of the 122.21(r)(10) assessment would 

enter the social cost framework unchanged. 

• Other administrative expenses – e.g., additional permitting and/or 

reporting expenses. Being a social cost concept the estimate must include 

not only the costs to the facility but those expected to be incurred by the 

permitting authority as well. In some cases, thesePermitting costs 

maywould generally be lower if a facility installsopts to install a closed 
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cycle cooling system without going through the BTA site-specific 

determination, as this allows the facility to minimize the amount of permit 

application information submitted. 

For the assessment of social cost, the cost elements outlined above would 

typically be accounted for on a real cost basis – that is, pre-tax and excluding the effects 

of inflation. Costs are tallied over an appropriate timeframe, which will typically be the 

expected useful life of the technology installation or the remaining life of the facility, if 

less. Costs are discounted to the year of technology installation using a social discount 

rate (Office of Management and Budget guidance indicates 3 percent), reflecting 

society’s rate of time preference as opposed to a facility’s cost of capital, and then 

annualized over the relevant timeframeCosts should be calculated as both net present 

value and annualized values, using an appropriate discount rate. The applicant should 

document the basis for the discount rate chosen. 

In assessing the benefits of entrainment technology installation, the Director seeks 

to quantify and valuewould assess the returnsvalue to society from the reductions in I&E 

mortality that would result from installation of a closed cycle cooling system or 

alternative entrainment technology. All benefits, including quantified and non-quantified 

benefits, should be considered in this assessment. The benefits assessment would 

typically look at a range of potential benefit mechanisms, including improvement in 

productivity and value of commercial fisheries, increased value of affected water 

resources for recreational usage, and values that accrue to persons who do not use the 

affected water resources but who assign a value to the environmental improvements that 

result from closed cycle cooling system operation (non-use value).increased harvest for
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commercial fisheries, increased use values for recreational fisheries, and non-use values

(existence and bequest values). The latter may be difficult to quantify and/or monetize. 

If appropriate data are available from stated preference studies or other sources that can 

be applied to the site being evaluated, these should be used to monetize non-use values. 

Otherwise, non-use values should be evaluated qualitatively. Quantitative analysis, even 

in the absence of monetization, can be quite useful in evaluating non-use benefits. For 

example, quantifying impacts to forage and T&E species, and other indirect impacts on 

the aquatic environment, may allow the permitting authority to derive a more complete 

understanding of benefits. 

Quantifying and valuing the benefit categories listed above involves significant 

challenges, as described in the Environmental and Economic Benefits Analysis report. 

For example, assessing the productivity and value of commercial fisheries involves 

estimating the expected increases in commercial yield of economically valued species 

over time as a result of reduced I&E mortality, assessing how these changes affect the 

total quantity and value of commercial species in fish markets, and whether the resulting 

market-level effects translate into a net economic improvement to consumers.and valuing 

these at market prices minus any incremental production costs associated with the 

incremental catch. Similarly, the assessment of recreational use benefits involves 

estimating the improvements in recreational fishing opportunities resulting from reduced 

I&E mortality, and assigning a value to these improvements. The assignment of value is 

based on the estimated population profile – in particular, number and proximity to 

affected water resources – of recreational users, the availability of alternative competing 

water resources for recreational usage, and the resulting estimated change in demand for 
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use and value of the affected water resources based on reduced I&E mortality and 

increased recreational fishing performance. EPA acknowledges this may be hard to do 

on a site-specific basis, and solicits comment on tools EPA could consider producing to 

aid this process.

The category of nonNon-use benefits, which encompass existence and bequest 

values based not just on direct impacts to commercial and recreational species but,

include indirect servicesimpacts in such areas as population resilience and support, 

nutrient cycling, natural species assemblages, and ecosystem health and integrity. These

may be assessed on the basis of benefits transfer analysis (using findings from prior 

analyses involving a similar policystudy context) or by performance of a peer reviewed 

stated preference survey to assess the value assigned for the environmental improvements 

resulting from the technology installation. A potentially large component of non-use 

value could come from Non-use values include improving the survival probability of a 

threatened or endangered species if present in the vicinity of the facility. Benefits may 

also need to be assessed beyond the vicinity of the facility’s intake if migratory species 

are affected by the intake. Also closed cycle cooling has the additional benefit of 

reducing the negative impact Residual impacts of thermal discharges to waters of the 

United States. The benefits that would accrue from the reduction of thermal impacts 

shouldmay also be consideredappropriate to consider in the social benefits calculation. 

In much the same way as described for the social cost assessment, social benefits 

are tallied on a year-by-year basis over the expected performance life of the compliance 

technology. If possible, this tallying should account for the “phase-in” of benefits (e.g., 

benefits may build up over time as the I&E mortality reductions affect commercial 
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fisheries productivity) and “phase-down” of benefits at the end of the technology 

equipment’s performance life (e.g., the I&E mortality reduction benefits may continue 

beyond the performance life of the compliance technology). Benefits are talliedcomputed

on a present value basis and annualized using the socialan appropriate discount rate value 

as described above. The same discount rate should be used for benefits and costs. 

Often, it is appropriate to calculate benefits and costs using more than one discount rate. 

For example, for regulatory impact analysis, the Office of Management and Budget 

recommends that costs and benefits be annualized using both a 7% and a 3% rate. 

However, comparisons between specific benefit and cost numbers should always involve 

values computed using the same rate.

The resulting estimates of social cost and benefits maymust be taken into account 

in reaching determinations on whether to require a permittee to install entrainment 

technology and the specific level of entrainment technology to be installed. However, in 

considering these benefit-cost analyses, it is important that the Director recognize that 

even at when dealing with only a single site assessment the quantified and monetized 

estimates of benefits are more uncertain and less comprehensive than the estimates of 

costs. Important benefit effect categories will very likely not be able to be quantified and 

monetized in the benefit analyses that are able to be undertaken in support of the 

entrainment technology determinations. As a result, benefit estimates are likely to 

underestimate the value that would accrue to society from a given entrainment 

technology installation. Accordingly, it is important to bear these limitations in mind, 

and, in particular, to consider the probable contribution of non-quantified and non-
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monetized benefit categories, in any comparison of costs and benefits to support 

decisions on a given technology requirement. 

The results of the social cost-benefit analysis should be interpreted in the 

following way: The Director may not reject an otherwise available technology as BTA 

standards for entrainment mortality requirements unlessif the social costs of compliance 

are wholly disproportionate to thenot justified by the social benefits, or if there are 

adverse impacts that cannot be mitigated that the Director deems to be unacceptable. If 

all technologies considered have social benefits. If the most costly entrainment 

technology is rejected as a result of this test the test should be applied to the next most 

costly entrainment technology untilcosts not justified by the social cost of the proposed 

entrainment technology benefits, or have unacceptable adverse impacts that cannot be 

mitigated, the Director may determine that no longer violates the wholly disproportionate 

rule. 

additional control requirements are necessary beyond what the facility is already 

doing. The director should document the basis for this determination and include it in the 

public notice for the draft permit. (8) The Director would review I&E mortality 

monitoring reports. EPA is shifting towards an electronic DMR system, and many of the 

IM and EM standards could be incorporated into the DMR itself, rather than requiring a 

separate report. EPA solicits comment on whether such reports should accompany 

monthly Discharge Monitoring Reports (DMRs). EPA expects the more detailed 

monitoring information would be submitted in annual reports and as part of the facility’s 

subsequent permit application submission. 

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X. Related Acts of Congress, Executive Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory Planning and Review and Executive 

Order 13563: Improving Regulation and Regulatory Review

Under section 3(f)(1) of Executive Order (EO) 12866 ((58 FR 51735, October 4, 

1993), this action is an “economically significant regulatory action”” because it is likely 

to have an annual effect on the economy of $100 million or more. Accordingly, EPA 

submitted this action to the Office of Management and Budget (OMB) for review under 

EO 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response 

to OMB recommendations have been documented in the docket for this action. 

In addition, EPA prepared an analysis of the potential costs and benefits 

associated with this action. This analysis is contained in Chapter 12 of the EA report. A 

copy of the analysis is available in the docket for this action and the analysis is briefly 

summarized here. 

Exhibit X-1 (drawn from Table 12-2 of the EA) provides the results of the 

benefit-cost analysis. Placeholders for nonmonetized benefits are represented by B1, B2, 

B3, and B3,B4 which are expected to be option specific in value. EPA’s analysis using a 

habitat equivalence approach (see EEBA, Chapter 9) suggests that B1, B2, B3, and B3,B4

have the potential to be significant, though EPA does not have the same confidence in 

those estimates as in the monetized estimates, and is therefore using placeholders. 

Exhibit X-1: Total Annualized Benefits and Costs of the Regulatory Options 

(Millions; 2009 $)a, b

Option Social CostscCostsb Benefits 

1. IM Everywhere, Site-Specific 

EM for Facilities with DIF > 2 

MGDd

$481.83384 $18.34 + B1

2. IM Everywhere, EM for $4,600.81463 $120.96121 + B2

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Facilities with DIF > 125 MGD 

3. IM&EMI&E Mortality

Everywhere $4,782.39632 $125.65126 + B3

4. IM for Facilities with 

DIF>50MGD $327 $17 + B4

a. All costs and benefits were annualized over 50 years and discounted using 3 percent rate. 

b. Estimates include repowering costs and benefits.

cb. Total Social Costs include compliance costs to facilities and government administrative costs.

d. EPA did Costs and benefits for Options 1, 2, and 4 do not calculate socialinclude costs and monetizedor benefits forassociated sitespecific entrainment controlsBTA determinations. In section VI.I, EPA presents several scenarios to illustrate potential costs 

associated with these determinations for Options 1 and 4. EPA believes the costs and benefits of these determinations could be

substantial, and could be significantly larger than the costs and benefits shown for Options 1 and 4. For Option 2, only facilities with 

AIF < 125 MGD would be subject to site-specific BTA and additional costs and benefits for these facilities are likely to be small 

relative to the costs and benefits already estimated for this option.

B. Paperwork Reduction Act

The information collection requirements in this proposed rule have been 

submitted for approval to the Office of Management and Budget (OMB) under the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request 

(ICR) document prepared by EPA has been assigned EPA ICR number 2060.05.

Compliance with the applicable information collection requirements imposed 

under a final rule based on this proposal would be mandatory. Today's proposed rule 

would require several distinct types of information collection as part of the NPDES 

renewalpermit application. In general, the information will be used to identify how a 

316(b) existing facility would meet the impingement mortality and entrainment 

requirements. Today’s rule would also require other reporting and recordkeeping 

requirements to demonstrate and document compliance with the proposed requirements. 

The OMB previously approved information collection requirements contained in 

the 2004 Phase II final rule under the provisions of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq., and assigned OMB control number 2060.02, or DCN 6-00012040-

0257. The 2004 Phase II final rule required applicable facilities to perform several datagathering activities as part of the permit renewal application process. It also required 

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certain monitoring and reporting after permit issuance. The previously-approved 

information collection requirements included one-time burden associated with the initial 

permit application and those activities associated with monitoring and reporting once the 

permit was issued. The total average annual burden associated with the 2004 Phase II 

rule information collection requirements for the entire Phase II industry was estimated at 

1,700,392 hours. The annual average reporting and record keeping burden associated 

with the 2004 Final Phase II rule for a 316(b) existing facility was estimated to be 5,428 

hours per respondent (i.e., total annual average burden of 1,595,786 hours divided by an 

anticipated 294 respondents). The Director’s reporting and record keeping burden for the 

review, oversight, and administration of the 2004 final Phase II rule was estimated to 

average 2,615 hours per respondent (i.e., a total annual average burden of 104,606 hours 

divided by an anticipated 40 States). 

Today’s proposal streamlines some aspects of the permit application and 

implementation process and would impose reduced information collection requirements 

in comparison to the 2004 Phase II rule. (for existing power plants with DIF > 50 MGD). 

For example, under the 2004 Phase II rule, facilities would have been required to submit 

several studies a Technology Implementation and Operations Plan, which is not required 

as part of a Comprehensive Demonstration Study to assist in developing a calculation 

baseline; under today’s proposal, facilities would not be required to conduct those studies 

because there is no calculation baseline. Instead, facilities would be required to submit a 

Source Water Baseline Biological Characterization Study that is similarly to that required 

for Phase I facilities (See § 122.21(r)(4)). 
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proposed rule. Like the 2004 Phase II rule, today’s proposal would require 

facilities to collect and report impingement mortality compliance monitoring data. Under 

certain compliance optionsalternatives provided in today’s proposed rule, design 

documentation and flow data would be provided instead of biologically monitoring data. 

The information reporting requirements under today’s proposed compliance 

optionsalternatives, described at § 125.95, include minimalsome additional requirements 

such as submission of an initial certification statement and annual certification statements 

thereafter, submission of monitoring reports along with DMRs, and submission of annual 

reports, as well as maintenance of any on-site compliance paperworkvarious records. 

A comparison of today’s proposed requirements and those previously approved 

by OMB for the 2004 Phase II rule demonstrates that the proposed requirements (whether 

a facility would elect to comply with one of the compliance options or not) are generally 

less onerous and burdensome than those associated with the existing OMB approval. As 

a result, the existing OMB-approved ICR is presumed sufficient to address any of the 

information collection requirements proposed today.

Facilities that were not part of Phase II would have additional reporting and 

recordkeeping requirements relative to the current BPJ permitting approach. EPA is 

currently preparing a revised ICR that will estimate the total burden of the proposed rule 

using the Phase II burden estimates as a starting point. These will be adjusted to account 

for differences in what is required under the proposed rule, as well as the extension of 

new requirements to Phase III facilities. EPA will announce in the Federal Register when 

this information has been placed in the docket for today’s rule and will allow a separate 
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60-day comment period on the proposed paperwork requirements, including the revised 

burden estimates.

Burden is defined at 5 CFR 1320.3(b). 

An agency may not conduct or sponsor, and a person is not required to respond to, 

a collection of information unless it displays a currently valid OMB control number. The 

OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. 

To comment on the Agency's need for this information, the accuracy of the 

provided burden estimates, and any suggested methods for minimizing respondent 

burden, EPA has established a public docket for this rule, which includes this ICR, under 

Docket ID number EPA-HQ-OW-2008-0667. Submit any comments related to the ICR 

to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to 

submit comments to EPA. Send comments to OMB at the Office of Information and 

Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, 

Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to 

make a decision concerning the ICR between 30 and 60 days after [Insert date of 

publication in the Federal Register.], a comment to OMB is best assured of having its full 

effect if OMB receives it by [Insert date 30 days after publication in the Federal 

Register.]. The final rule will respond to any OMB or public comments on the 

information collection requirements contained in this proposal.

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 
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agency certifies that the rule will not have a significant economic impact on a substantial 

number of small entities. Small entities include small businesses, small organizations, 

and small governmental jurisdictions. 

1. Definition of Small Entities and Estimation of the Number of Small Entities 

Subject to Today’s Proposed Regulation 

For EPA’s assessment of the impact of today’s proposed rule on small entities, 

small entity is defined as either a: (1) a small business as defined by the Small Business 

Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town, school district or special district 

with a population of less than 50,000; or (3) a small organization that is any not-for-profit 

enterprise which is independently owned and operated and is not dominant in its field. In 

reaching entity size determinations, EPA assumed that all federalFederal or State entities 

owning in-scope facilities, are not small entities. 

a. Electric Generators 

For assessing the impacts of today's rule on small Electric Generator entities, 

small entity is defined in accordance with SBA criteria for identifying small, nongovernment entities in the electric power industry, as follows: 

• For non-government entities with electric power generation as a primary 

business, small entities are those with total annual electric output less than 

4 million MWh.; small governments are those serving a population of less 

than 50,000. 
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• For entities with a primary business other than electric power generation, 

the relevant size criteria are based on revenue or number of employees by 

NAICS sector (see Exhibit X-2). 

Exhibit X-2: NAICS Codes and SBA Entity Size Standards for In-Scope Electric 

Generators with a Primary Business Other Than Electric Power Generation117

NAICS Code NAICS Description SBA Size Standard 

221112 Fossil Fuel Electric Power Generation 4,000,000 MWh 

221113 Nuclear Electric Power Generation 4,000,000 MWh

221119 Other Electric Power Generation 4,000,000 MWh 

221122 Electric Power Distribution 4,000,000 MWh 

221210 Natural Gas Distribution 500 Employees

238210 Electrical Contractors $14,000,000 Revenue

331111 Iron and Steel Mills 1,000 Employees 

331315 

Aluminum Sheet, Plate, and Foil 

Manufacturing 750 Employees 

523910 Miscellaneous Intermediation $7,000,000 Revenue

486210 Pipeline Transportation of Natural Gas $7,000,000 Revenue

523920 Portfolio Management $7,000,000 Revenue 

523930 Investment Advice $7,000,000 Revenue 

524126 

Direct Property and Casualty Insurance 

Carriers 1,500 Employees 

525990 Other Financial Vehicles $7,000,000 Revenue

525910 Open-End Investment Funds $7,000,000 Revenue 

541990 

All Other Professional, Scientific, and 

Technical Services $7,000,000 Revenue 

551112 Offices of Other Holding Companies $7,000,000 Revenue

561499 All Other Business Support Services $7,000,000 Revenue 

562212 Solid Waste Landfill $12,500,000 Revenue 

562219 

Other Nonhazardous Waste Treatment 

and Disposal $12,500,000 Revenue 

562920 Materials Recovery Facilities $12,500,000 Revenue

611310 

Colleges, Universities, and Professional 

Schools $7,000,000 Revenue 

For this analysis, EPA identified the domestic parent entity of each electric 

generating facility subject to today’s proposed rule (for a discussion on determination of 

parent entities of in-scope Electric Generators see Chapter 5 of the EA report). To 

determine whether these entities are small entities based on the size criteria outlined 

 

117 Certain in-scope facilities are owned by entities whose primary business is not electric power 

generation. 

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above, EPA compared the relevant measure for the identified parent entities to the 

appropriate SBA size criterion. 

From this analysis, EPA estimates that 33 small entities (out of a total of 143 

entities that own in-scope Electric Generators) own Electric Generators that would be 

subject to today’s proposed rule, representing 1.6 percent of total estimated small entities 

in the electric power industry (see Exhibit X-3). Municipalities make up the largest 

number of small entities owning in-scope facilities (17 out of 33); these small entities 

represent 1.8 percent of all small entities in that category. Small entities owning in-scope 

facilities as a percentage of total small entities range, by ownership category, from 0.9 

percent for rural electric cooperatives and other political subdivisions, to 10.9 percent for 

the investor-owned utilities.118

Exhibit X-3: Number of Small Entities Owning In-Scope Electric Generating 

Facilities as a Percentage of the Total Number of Small Entities in the Industry, by 

Ownership Type

Ownership Type 

Total Number of Small 

Entities in the Industry a

Small Entities Owning In-Scope Facilities 

Number of InScope Entitiesb

Small In-Scope Entities as 

Percentage of All In-Scope 

Entities in the Industry 

Investor-Owned Utilities 18 2 10.9% 

Nonutilities 131130 5 3.8% 

Rural Electric 

Cooperatives 848 8 0.9% 

Municipality 968 17 1.8%

Other Political 

Subdivision 113 1 0.9% 

Federal 0 0 0 

State 0 0 0 

All Entity Types 2,078 33 1.6% a. State and Federal entities are considered large. 

b

.

.

The entity counts include entities owning known 316(b) Electric Generators and are not weighted 

estimates. 

b. Manufacturers 

 

118 The entity counts include entities owning known 316(b) Electric Generators and are not weighted 

estimates. 

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For purposes of assessing the impacts of today's rule on small Manufacturers, 

small entity is defined in accordance with SBA criteria. Exhibit X-4 lists the SBA size 

threshold guidelines for entities owning Manufacturers facilities. 

Exhibit X-4: NAICS Codes and SBA Entity Size Standards for In-Scope Entities in 

Manufacturers Sectors 

NAICS Code NAICS Description SBA Size Standard 

111930 Sugarcane Farming $750,000 in Revenue

113110 Timber Tract Operations $7,000,000 in Revenue 

211111 Crude Petroleum and Natural Gas Extraction 500 Employees 

212210 Iron Ore Mining 500 Employees

212391 Potash, Soda, and Borate Mineral Mining 500 Employees 

221119 Other Electric Power Generation 4,000,000 MWh of Electric 

Generation 

311221 Wet Corn Milling 750 Employees 

311311 Sugarcane Mills 500 Employees

311312 Cane Sugar Refining 750 Employees 

311313 Beet Sugar Manufacturing 750 Employees 

311942 Spice and Extract Manufacturing 500 Employees

313210 Broadwoven Fabric Mills 1,000 Employees

321113 Sawmills 500 Employees 

322121 Paper (except Newsprint) Mills 750 Employees 

322122 Newsprint Mills 750 Employees 

322130 Paperboard Mills 750 Employees

322211 Corrugated and Solid Fiber Box Manufacturing 500 Employees 

322222 Coated and Laminated Paper Manufacturing 500 Employees 

322291 Sanitary Paper Product Manufacturing 500 Employees

324110 Petroleum Refineries 1,500 Employees

324191 Petroleum Lubricating Oil and Grease 

Manufacturing 

500 Employees 

325120 Industrial Gas Manufacturing 1,000 Employees 

325181 Alkalis and Chlorine Manufacturing 1,000 Employees

325188 All Other Basic Inorganic Chemical 

Manufacturing 

1,000 Employees

325199 All Other Basic Organic Chemical 

Manufacturing 

1,000 Employees 

325211 Plastics Material and Resin Manufacturing 750 Employees 

325311 Nitrogenous Fertilizer Manufacturing 1,000 Employees

325320 Pesticide and Other Agricultural Chemical 

Manufacturing 

500 Employees

325412 Pharmaceutical Preparation Manufacturing 750 Employees 

325510 Paint and Coating Manufacturing 500 Employees 

325992 Photographic Film, Paper, Plate and Chemical 

Manufacturing 

500 Employees 

325998 All Other Miscellaneous Chemical Product and 

Preparation Manufacturing 

500 Employees

331111 Iron and Steel Mills 1,000 Employees 

331112 Electrometallurgical Ferroalloy Product 

Manufacturing 

750 Employees 
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331210 Iron and Steel Pipe and Tube Manufacturing 

from Purchased Steel 

1,000 Employees

331221 Rolled Steel Shape Manufacturing 1,000 Employees

331222 Steel Wire Drawing 1,000 Employees 

331312 Primary Aluminum Production 1,000 Employees 

331315 Aluminum Sheet, Plate and Foil Manufacturing 750 Employees

332312 Fabricated Structural Metal Manufacturing 500 Employees 

337910 Mattress Manufacturing 500 Employees 

339999 All Other Miscellaneous Manufacturing 500 Employees 

423310 Lumber, Plywood, Millwork, and Wood Panel 

Merchant Wholesalers 

100 Employees

423930 Recyclable Material Merchant Wholesalers 100 Employees

424510 Grain and Field Bean Merchant Wholesalers 100 Employees 

424690 Other Chemical and Allied Products Merchant 

Wholesalers 

100 Employees 

424710 Petroleum Bulk Stations and Terminals 100 Employees

447190 Other Gasoline Stations $9,000,000 in Revenue

522220 Sales Financing $7,000,000 in Revenue 

523910 Miscellaneous Intermediation $7,000,000 in Revenue 

523930 Investment Advice $7,000,000 in Revenue

524126 Direct Property and Casualty Insurance Carriers 1,500 Employees 

525990 Other Financial Vehicles $7,000,000 in Revenue 

531110 Lessors of Residential Buildings and Dwellings $7,000,000 in Revenue 

551112 Offices of Other Holding Companies $7,000,000 in Revenue

561110 Office Administrative Services $7,000,000 in Revenue 

To determine entity size, EPA started with information reported in the Detailed 

Industry Questionnaire and Industry Screener Questionnaire, and updated information on 

each owner’s primary NAICS, current revenue, and employment size data from SEC 

filings, Dun & Bradstreet (D&B, 2009), and corporate websites. For details of this 

process, see Chapter 4 of the EA report. EPA compared the relevant measure for the 

identified parent entities to the appropriate SBA size criterion. 

Because EPA undertook this assessment for the sample of Manufacturers facilities 

and related owning entities responding to the previous 316(b) questionnaires, it was 

necessary to estimate the number of owning entities and to assess whether these entities 

are small, based on application of sample weights. Because the sample weights are based 

on facilities instead of entities, the facility-based weights do not provide statistically 
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precise estimates of the numbers of owning entities. As a result, EPA applied alternative 

sample-weighting assumptions to that yield lower and upper bound estimates of the 

numbers of small entities in the Primary Manufacturing Industries owning in-scope 

Manufacturers facilities, as reported in Exhibit X-5. Because the analysis of facilities in 

Other Industries is not based on a statistically valid sample, EPA could not estimate the 

number of entities in Other Industries that would be subject to the regulatory 

requirements of the regulatory analysis options, or the percentage that are small entities. 

However, based on a review of nationwide water withdrawals and cooling water use, the 

Census of Manufacturers, and comments received on the Phase III proposed rule, EPA 

does not expect a significant number of additional small entities would be subject to 

today’s proposed regulatory requirements. 

Exhibit X-5: Number and Percentage of Small Entities in Primary Manufacturing 

Industries Subject to the Proposed Regulation, by Industry 

Sector 

Lower bound estimate of 

number of entities 

Upper bound estimate of 

number of entities 

Total Sector 

Small 

Entitiesa 

Estimated 

316(b) Small 

Entities 

Percentage of 

Small 

Entities 

Subject to 

Regulation 

Estimated 

316(b) Small 

Entities 

Percentage of 

Small 

Entities 

Subject to 

Regulation 

Paper 218 239 10.64.1% 729 313.2% 

Chemicals 2,506 134 0.52% 318 0.17% 

Petroleum 188 14 0.62.1% 14 0.52.2% 

Steel 1,149 53 0.43% 28 0.27% 

Aluminum 227 52 2.0.9% 25 2.0.9% 

Food 23,546 01 0.0% 01 0.0% 

Total for Primary 

Manufacturing 

IndustriesIndustriesb 27,834 4723 0.21% 1564 0.12% a

. Includes all firms with less than 500 employees from 2006 Statistics of U.S. Businesses (SUSB) of the 

U.S. Department of Commerce (U.S. DOC). The Small Business Administration defines firms in nearly all 

profiled NAICS codes according to the firm’s number of employees; however, for some in-scope 

manufacturing NAICS codes this threshold is 500 employees while for others this threshold is 750, 1,100, 

or 1,500 employees. Because the SUSB employment size categories do not correspond to the SBA entity 

size classifications, EPA was had to useused the 500 employee threshold for all in-scope NAICS. b

 Due to rounding colomns may not sum.

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From this analysis, EPA estimates that 1523 to 4764 small entities own 

Manufacturers facilities that are subject to today’s proposed rule, representing 0.21 to 

0.12 percent of total estimated small entities in the Primary Manufacturing Industries (see 

Exhibit X-5). Of the six Primary Manufacturing Industries, Paper has the largest number 

of small entities (79 to 2329), and these small entities also account for the largest 

percentage of total small entities in any of the six industries – 3.24.1 to 10.613.2 percent 

of estimated total small entities in the Paper industry. The percentage of estimated total 

small entities subject to regulation reaches 2 percent for only one (Aluminum)two of the 

remaining Primary Manufacturing Industries. (Petroleum and Aluminum).

From the 316(b) survey data, EPA identified an additional 4 entities in the Other 

Industries that are also small entities; however, as noted, EPA is unable to estimate the 

total number of small in-scope entities in the Other Industries. 

c. Total Estimate of Small In-Scope Entities

On a combined basis, EPA estimates that 56 - 96 small entities would be within 

the scope of the existing facilities rule options. These counts do not include the 

additional known 4 small entities in the Other Industries. 

2. Statement of Basis 

As described above, EPA began its assessment of the impact of today’s proposed 

regulatory options on small entities by first estimating the number of small entities within 

the two industry segments subject to the proposed rule – Electric Generators and 

Manufacturers – that would be expected to be within the scope of today’s proposed rule. 

EPA then assessed whether these small entities would be expected to incur costs that 
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constitute a significant impact; and assessed whether the number of those small entities 

estimated to incur a significant impact represent a substantial number of small entities. 

To assess whether small entities’ compliance costs might constitute a significant 

impact, EPA summed annualized compliance costs119 for the Electric Generators and 

Manufacturers facilities estimated to be owned by a given small entity and calculated 

these costs as a percentage of entity revenue (Cost-Toto-Revenue Test). EPA compared 

the resulting percentages to impact criteria of 1 percent and 3 percent of revenue. Small 

entities estimated to incur compliance costs exceeding one or more of these impact 

thresholds were identified as potentially incurring a significant impact. EPA undertook 

these assessments separately for Electric Generators and Manufacturers. 

For both Electric Generators and Manufacturers, EPA used alternative sampleweighting approaches, which provide a range of estimates of the numbers of small 

entities and in-scope facilities owned by these small entities. 

The results of this analysis using both weighting approaches are summarized 

below. In the following summary tables,table (Exhibit X-6), the estimated numbers of 

small entities incurring costs exceeding 1 percent and 3 percent of revenue are presented 

as ranges, based on the alternative sample weighting approaches. In addition, EPA 

compared the estimated numbers of small entities with costs exceeding a given impact 

threshold with the estimated number of small in-scope entities. The resulting estimated 

numbers and percentages of small in-scope entities that may incur a significant impact, as 

reported in Exhibit X-6, provide a measure of the potential impact of the existing 

facilities rule options on small in-scope entities.

 

119 Option 1 does not include an assessment of site-specific entrainment costs. However, Option 3 includes 

EM based on closed-cycle cooling at all existing facilities. 
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a. Electric Generators

Using the alternative weighting approaches for Electric GeneratorsFrom these 

analyses, EPA estimates under Option 1, the proposed option, that between 4 and 65 to 7

small entities will incur costs exceeding 1 percent of revenue under Options 1 and 2, and 

between 9 and 21, and 3 small entities under Option 3. EPA estimates that 2 small parent 

entities will incur costs exceeding 3 percent of revenue under Option 1, between 2 and 6 

small parent entities under Option 2, and between 6 and 14 parent entities under Option 

3. The numbers of small entities incurring costs exceeding either the 1 or 3 percent of 

revenue impact threshold are very small . As percentages of the total estimated total of 

56 to 96 small in-scope entities,120 these small entities represent 5 to 13 percent of small 

in-scope entities at the 1 percent of revenue threshold, and 3 to 5 percent of small inscope entities at the 3 percent of revenue threshold. Both the number of small in-scope 

entities inincurring a potential impact and the Electric Generators ownership categories

(see Exhibit X-6). As a percentagetotal of all small in-scope entities in any ownership 

category, the largest are estimated as ranges. EPA calculated the range of percentage of 

all categorytotal small in-scope entities incurring a potential impact by comparing (1) the 

lower of the estimated number of small in-scope entities incurring a potential impact with 

the higher of the estimated total of small in-scope entities (yields the lower value of the 

percentage range) and (2) the higher of the estimated number of small in-scope entities 

incurring a potential impact with the lower of the estimated total of small in-scope 

entities (yields the higher value of the percentage range).

 

120 The estimated total of small in-scope entities does not include the known 4 small Manufacturers entities 

in the Other Industries. EPA assessed the potential impact of the regulatory options on these 4 small 

entities; none were found to incur a significant impact under any of the four regulatory options. 
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 For Option 2, EPA estimates that 5 to 7 small entities will incur costs exceeding 

1 or percent of revenue (5 - 13 percent of small in-scope entities), and 3 percent of 

revenue occurs among nonutilities, at 1.to 7 small entities will incur costs exceeding 3 

percent. of revenue (3 - 13 percent of small in-scope entities). For Option 3, EPA 

estimates that 10 to 22 small entities will incur costs exceeding 1 percent of revenue (10 -

39 percent of small in-scope entities), and 7 to 15 small entities will incur costs exceeding 

3 percent of revenue (7 - 27 percent of small in-scope entities). For Option 4, EPA 

estimates that 4 to 6 small entities will incur costs exceeding 1 percent of revenue (4 - 11 

percent of small in-scope entities), and 2 small entities will incur costs exceeding 3 

percent of revenue (2 - 4 percent of small in-scope entities) (see Exhibit X-6).

For more details on this analysis see EA Chapter 7: Regulatory Flexibility Act 

(RFA) Analysis. 

Exhibit X-6: Estimated Cost-to-Revenue Impact onfor Small Electric GeneratingInScope Entities, by Entity Type

Parent Entity 

TypeRegulatory Option

Cost Impact Category 

Cost >1% of Revenue Cost >3% of Revenue 

Number of 

Small Entities 

% of all small 

entitiesSmall 

in-Scope 

Entitiesc

Number of 

Small 

EntitiesEntities

a,c

% of all small 

entitiesSmall 

In-scope 

Entitiesb

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Option 1: IM Everywhere 5 - 7 5% - 13% 3b 3% - 5%

Rural Electric Cooperatives 1-4 0.1%-0.5% 1-0 0.1%-0.0%

Investor-Owned 0-0 0.0%-0.0% 0-0 0.0%-0.0%

Municipality 2-0 0.1%-0.0% 0-0 0.0%-0.0%

Nonutility 1-2 0.8%-1.3% 1-2 0.8%-1.3%

Other Political Subdivision 0-0 0.0%-0.0% 0-0 0.0%-0.0%

Total 4-6 0.1%-0.3% 2-2 0.1%-0.1%

Option 2: IM Everywhere and EM 

for Facilities with DIF>125 MGD 5 - 7 5% - 13% 3 - 7 3% - 13%

Rural Electric Cooperatives 1-4 0.1%-0.5% 1-4 0.1%-0.5%

Investor-Owned 0-0 0.0%-0.0% 0-0 0.0%-0.0%

Municipality 2-0 0.1%-0.0% 0-0 0.0%-0.0%

Nonutility 1-2 0.8%-1.3% 1-2 0.8%-1.3%

Other Political Subdivision 0-0 0.0%-0.0% 0-0 0.0%-0.0%

Total 4-6 0.1%-0.3% 2-6 0.1%-0.3%

Option 3: I&E Mortality Everywhere 10 - 22 10% - 39% 7 - 15 7% - 27%

Rural Electric Cooperatives 2-8 0.2%-0.9% 1-4 0.1%-0.5%

Investor-Owned 0-0 0.0%-0.0% 0-0 0.0%-0.0%

MunicipalityOption 4: IM for 

Facilities with DIF>50 MGD 4 - 6-11 0.5%-1.24% - 11% 4-92b 0.2% - 4%-0.9% 

Nonutility 1-2 0.8%-1.3% 1-2 0.8%-1.3%

Other Political Subdivision 0-0 0.0%-0.0% 0-0 0.0%-0.0%

Total 9-21 0.4%-1.0% 6-14 0.3%-0.7% a

. The number of entities with cost-to-revenue ratios exceeding 3 percent is a subset of the number of entities with such ratios 

exceeding 1 percent.

b

 The estimated number of small entities exceeding the impact threshold is the same under both estimation approaches., however the 

total number of entities differs.

C

 For both Electric Generators and Manufacturers, EPA used alternative sample-weighting approaches, which provide a range of 

estimates of the numbers of small entities and in-scope facilities owned by these small entities (see Section VII(D)(a)(iv) for

manufactures and see Section VII(D)(b)(1)(b) for electric generator weighting approaches).

b. Manufacturers

EPA estimates that two small Manufacturers entities under all Options will incur 

costs exceeding 1 percent of revenue and two small entities will incur costs exceeding 3 

percent of revenue under both weighting approaches; this finding holds true for all three 

analyzed Options. In the same way as observed for Electric Generators, the numbers of 

small entities incurring costs exceeding either the 1 or 3 percent of revenue impact 

threshold are very small percentages of the total estimated number of small entities in the 

industry segments (see Exhibit X-7). 

Exhibit X-7: Estimated Cost-to-Revenue Impact on Small Manufacturers Entities, 

by Sector

Entity Sector

Cost Impact Category

Cost >1% of Revenuea Cost >3% of Revenuea

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Number of 

Small Entities

% of all small 

entities

Number of 

Small Entities

% of all small 

entities

Option 1: IM Everywhere

Paper 0 0% 0 0%

Chemicals 0 0% 0 0%

Petroleum 1 0.5% 1 0.5%

Steel 0 0% 0 0%

Aluminum 0 0% 0 0%

Food 0 0% 0 0%

Multiple Industries 0 0% 0 0%

Total for Primary 

Manufacturing Industriesb 1 0.01% 1 0%

Additional firms that own 

known facilities in Other

Industriesb 1 NA 1 NA

Option 2: IM Everywhere and EM for Facilities with DIF > 125 MGD

Paper 0 0% 0 0%

Chemicals 0 0% 0 0%

Petroleum 1 0.5% 1 0.5%

Steel 0 0% 0 0%

Aluminum 0 0% 0 0%

Food 0 0% 0 0%

Multiple Industries 0 0% 0 0%

Total for Primary 

Manufacturing Industriesb 1 0.01% 1 0%

Additional firms that own 

known facilities in Other 

Industriesb 1 NA 1 NA

Option 3: I&E Mortality Everywhere

Paper 0 0% 0 0%

Chemicals 0 0% 0 0%

Petroleum 1 0.5% 1 0.5%

Steel 0 0% 0 0%

Aluminum 0 0% 0 0%

Food 0 0% 0 0%

Multiple Industries 0 0% 0 0%

Total for Primary 

Manufacturing Industriesb 1 0.01% 1 0%

Additional firms that own 

known facilities in Other 

Industriesb 1 NA 1 NA

a. The impact findings in terms of numbers of small entities with costs exceeding the 1 or 3 percent 

threshold is the same under both weighting approach cases.

b. The number of entities with cost-to-revenue ratios exceeding 3 percent is a subset of the number of 

entities with such ratios exceeding 1 percent.

c. Summary of Findings from the Regulatory Flexibility Act Analysis
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EPA estimates thatAs described in the preamble above, EPA eliminated 115 

facilities from the analysis that are projected to close as a result of baseline financial 

conditions. Of the 115 baseline closures, 18 are small entities.

To summarize, for the Proposed Option121 – Option 1 - 4 to 6 Electric Generator 

small entities and 2 Manufacturer, EPA estimates that 5 to 7 small entities would incur 

costs exceeding 1 percent of revenue and 2 Electric Generator small entities and 2 

Manufacturers3 small entities would incur costs exceeding 3 percent of revenue. For both 

in-scope industry segments, these These numbers of adversely affected small entities 

represent very small percentages5 - 13 percent of the estimated total of small in-scope 

entities for the 1 percent of revenue threshold, and 3 - 5 percent of the estimated 

totalstotal of small in-scope entities: 0.2 to 0. for the 3 percent of revenue threshold. 

Given the small Electric Generatorsnumber and 0.01 percentpercentage of small 

Manufacturers.in-scope entities estimated to incur a potentially significant economic 

impact, EPA judges that the Proposed Option, Option 1, will not cause a significant 

economic impact on a substantial number of small entities (SISNOSE).

3. Certification Statement 

After considering the economic impacts of this proposed rule on small entities, 

EPA certifies that this action will not have a significant economic impact on a substantial 

number of small entities. EPA bases this finding on the small number of small entities 

estimated to incur costs exceeding one and/or three percent of revenue, and the small 

percentage that these entities represent within the total of small entities in the affected 

industries. 

 

121 Option 1 does not include an assessment of site-specific entrainment costs. 
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D. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-

1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects 

of their regulatory actions on State, local, and tribal governments and the private sector. 

This rule contains a Federal mandate that may result in expenditures of $100 million or 

more for State, local, and tribal governments, in the aggregate, or the private sector in any 

one year. Accordingly, EPA has prepared under section 202 of the UMRA a written 

statement which is summarized below (see Chapter 8 of the EA report). 

1. Summary of Written Statement 

a. Authorizing Legislation 

Today’s proposed rule is issued under the authority of sections 101, 301, 304, 

306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act (CWA), 33 U.S.C. 1251, 

1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, and 1370. See section III of this 

preamble for detailed information on the legal authority of this rule. 

b. Cost-Benefit Analysis 

Today’s proposed options are expected to have total annualized pre-tax (social) 

costs of $481.83383.80 million (2009 $) under Option 1, of $4,600.81462.90 million 

under Option 2, and of $4,782.39631.62 million under Option 3, and of $326.55 under 

Option 4, including direct costs incurred by facilities and implementation costs incurred 

by federal, State, and local governments (annualized over 50 years and discounted at 3 

percent).122 The total monetized use and non-use benefits of today’s proposed options are 

estimated to be $18.3417.63 million under Option 1, $120.9679 million under Option 2, 

 

122 These social cost estimates use a different estimate of downtime than the private cost estimates cited 

above, and are thus lower. For more details see Chapter 11 in the EA report. 
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and $125.65 million under Option 3, and $17.33 million under Option 4 (annualized over 

50 years and discounted at 3 percent). 123 Thus, the total social costs exceed the total 

monetized benefits of the proposed options by $463.49366.17 million for Option 1, by 

$4,479.85342.11 million for Option 2, and by $4,656.74505.97 million for Option 3, and 

by $309.22 under Option 4. EPA notes that these differences are based on a comparison 

of a partial measure of benefits with a more complete measure of costs124;;

125 therefore, 

the results must be interpreted with caution. After considering the monetized and nonmonetized benefits of the proposed option, EPA has determined that the benefits of this 

option justify the costs. For a more detailed comparison of the costs and benefits of 

today’s proposed rule, see Chapter 12 of the EA report. 

EPA notes that States may be able to use existing sources of financial assistance 

to revise and implement this proposed rule. Section 106 of the Clean Water Act 

authorizes EPA to award grants to States, Tribes, intertribal consortia, and interstate 

agencies for administering programs for the prevention, reduction, and elimination of 

water pollution. These grants may be used for various activities to develop and carry out 

a water pollution control program, including permitting, monitoring, and enforcement. 

Thus, State and Tribal NPDES permit programs represent one type of State program that 

can be funded by section 106 grants. 

c. Summary of State, Local, and Tribal Government Input 

 

123 EPA was able to estimate nonuse benefits for the North Atlantic and Mid-Atlantic benefit regions. 124 The costs reflect the costs for facilities do comply with the primary BTA requirements, and do not 

reflect any facilities with reduced costs due to the available compliance alternatives and flexibilities. Since 

EPA anticipates a facility would generally participate in a compliance alternative if it was less burdensome 

or less costly to do so, today’s costs may be overstated.

125 The costs reflect the costs for facilities do comply with the primary BTA requirements, and do not 

reflect any facilities with reduced costs due to the available compliance alternatives and flexibilities. Since 

EPA anticipates a facility would generally participate in a compliance alternative if it was less burdensome 

or less costly to do so, today’s costs may be overstated.
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EPA consulted with State governments and representatives of local governments 

in developing the rule. The outreach activities are discussed in section III.A.3 of this 

preamble. 

d. Least Burdensome Option 

EPA considered and analyzed several alternative regulatory options asto 

determine the basis best technology available for its proposed BTA standards. 

minimizing adverse environmental impact. These regulatory options are discussed in 

today’s proposed rule at 67 FR 17154 - 17168, as well as in section VIII of this preamble. 

These options included a range of technology-based approaches including impingementonly mortality controls technology at all facilities to with a DIF greater than 50 MGD to 

additionally requiring impingement mortality controls in combination with and intake 

flow commensurate with closed-cycle cooling for all facilities.126 As discussed in detail 

in section VI, EPA did not select or reject either options exclusively based on cost 

considerations.because they were the most cost-effective among the options that fulfill 

the requirements of section 316(b). EPA selected the proposedpreferred option because, 

in EPA’s view, it reflects BTA in light of a numbermeets the requirement of factors as 

explained in section VI. . tthe proposedsection 316(b) of the CWA that the location, 

design, construction, and capacity of CWIS reflect the best technology available for 

minimizing adverse environmental impact. In addition, EPA has determined that the 

benefits of this option justify the costs, taking quantified and non-quantified costs and 

benefits into account. The preferred option reflects a cost-effective and flexible approach 

among the options considered. Under the proposed rule, there are a number of options 

 

126 All options also require site-specific determinations of BTA where uniform national controls are not 

included.
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for complying with its requirements. For example, a facility may monitor performance to 

demonstrate that their selected technology meets the requirements of today’s proposed 

rule. that allows consideration of costs and benefits on a site-specific basis in 

determining BTA.

2. Impact of Compliance Requirements on Small Governments 

This rule is not subject to the requirements of section 203 of UMRA because it 

contains no regulatory requirements that might significantly or uniquely affect small 

governments (i.e., governments with a population of less than 50,000). For its 

assessment of the impact of compliance requirements on small governments, EPA 

compared total costs and costs per facility as estimated to be incurred by small 

governments with those values as estimated to be incurred by large governments. EPA 

also compared costs for small government-owned facilities with those of nongovernment-owned facilities. The Agency evaluated costs per facility on the basis of 

both average and maximum annualized cost per facility. In all of these comparisons, both 

for the cost totals and, in particular, for the average and maximum cost per facility, the 

costs for small government-owned facilities were less than those for large governmentowned facilities or for small non-government-owned facilities. On this basis, EPA 

concluded that the compliance cost requirements of the proposed 316(b) Existing 

Facilities Rule would not significantly or uniquely affect small governments. 

Because no Manufacturers facility is government-owned, EPA conducted this 

analysis for Electric Generators only. 

a. Government-Owned Electric Generator Facilities by Ownership and Entity Size 

Category 
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Exhibit X-8 provides an estimate of the number of non-federal government 

entities that operate Electric Generators subject to today’s proposed rule, by ownership 

type and size of government entity. As reported in Exhibit X-8, 24 large government 

entities operate 41 Electric Generators subject to this proposed rule, and 18 small 

government entities operate 18 Electric Generators subject to the rule. Of the 59 facilities 

that are owned by government entities, 43 are owned by Municipalities, 9 are owned by 

State Governments, and 7 are owned by an Other Political Subdivision.

Exhibit X-8: Number of Government Entities and Government-Owned Electric 

Generator Facilities

Ownership Type 

Number of Government Entities 

(by Size) a

Number of Facilities 

(by Government Entity Size)b

Large Small Total Large Small Total 

Municipality 18 17 35 26 17 43 

State 

Government 4 0 4 9 0 9 

Other Political 

Subdivision 2 1 3 6 1 7 

Total 24 18 42 41 18 59 

a. Counts of entities owning explicitly and implicitly analyzed Electric Generators; these are not weighted 

entity counts. 

b. Counts of explicitly and implicitly analyzed Electric Generators; these are not weighted estimates. 

b. Compliance Costs for Small Government-Owned Electric Generators Facilities 

EPA estimates that 10 of the 41 (24%) non-federal government-owned Electric 

Generators facilities subject to today’s proposed rule are owned by small governments 

(Table X-9).127,128 Exhibit X-9 summarizes total, average annualized compliance costs, 

and maximum annualized compliance costs for government (State, local, and Tribal 

 

127 A small governmental jurisdiction is defined " as the government of a city, county, town, township, 

village, school district, or special district with a population of less than 50,000 (5 U.S.C. section 601(5)). 128 The entity counts described in this section were developed on a weighted basis and differ from the 

values reported in the preceding section, where were developed on an un-weighted basis. The values in this 

section were developed on a weighted basis because compliance costs were estimated only for explicitly 

analyzed facilities and facility weights are used to extend these results to the full set of in-scope facilities. 
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governments) and non-government-owned facilities for the three regulatory options and 

by size category of owning entity. 

EPA first looked at the relationship between costs incurred by small governments 

and small government-owned Electric Generators in comparison to those incurred by 

large governments and large government-owned facilities. As reported in Exhibit X-9, 

the estimated total annualized compliance costs for all non-federal government-owned 

Electric Generators are $10.8 million for Option 1, $102.3 million for Option 2, and 

$120.1 million for Option 3., and $9.5 million for Option 4. The 31 facilities owned by 

large governments would incur costs of $9.2 million under Option 1, $100.7 million 

under Option 2, and $107.6 million under Option 3, and $8.1 million under Option 4. In 

comparison, the 10 facilities owned by small governments would incur costs of $1.5 

million under Options 1 and 2 and, $12.5 million under Option 3, and $1.4 million under 

Option 4. On an average cost per facility basis, these costs are $0.1 million under 

Options 1, 2, and 24, and $1.2 million under Option 3, for facilities owned by small 

governments, with large government-owned facility costs of $0.3 million under 

OptionOptions 1 and 4, $3.2 million under Option 2, and $3.4 million under Option 3. In 

addition, the maximum per facility costs owned by small governments are $0.2 million 

under Options 1 and, 2, and 4, and $2.1 million under Option 3. The comparable values 

for large government-owned facilities are $1.0 million under OptionOptions 1 and 4, and 

$17.8 million under Options 2 and 3. Accordingly, the costs for small government-owned 

facilities are considerably lower than those for large governments on the basis of total 

costs, average cost per-facility, and maximum cost per-facility. EPA therefore concludes 
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that the compliance requirements of today’s proposed rule do not significantly or 

uniquely affect small governments in comparison to large governments. 

Exhibit X-9: Electric Generators Facilities and Compliance Costs by Ownership 

Type and Size for 316(b) Existing Facilities Rule Options (Millions; 2009$)

Ownership Type 

Entity 

Size 

Number of 

Facilities 

(weighted) 

Total Compliance 

Costs 

Average Cost per 

Facility 

Maximum Facility 

Costc

Option 1: IM Everywhere 

Government 

(excluding Federal) 

Small 10 $1.5 $0.1 $0.2

Large 31 $9.2 $0.3 $1.0

Private 

Small 16 $7.7 $0.5 $2.5

Large 485 $354.4 $0.7 $7.2

All Facilitiesb 559 $394.2 $0.7 $7.2

Option 2: IM Everywhere and EM for Facilities with DIF>125 MGD 

Government 

(excluding Federal) 

Small 10 $1.5 $0.1 $0.2

Large 31 $100.7 $3.2 $17.8

Private 

Small 16 $32.3 $2.0 $10.9

Large 485 $4,171.7 $8.6 $59.9

All Facilitiesb 559 $4,811.3 $8.6 $59.9

Option 3: I&E Mortality Everywhere 

Government 

(excluding Federal) 

Small 10 $12.5 $1.2 $2.1

Large 31 $107.6 $3.4 $17.8

Private 

Small 16 $34.0 $2.2 $10.9

Large 485 $4,300.3 $8.9 $59.9

All Facilitiesb 559 $4,959.4 $8.9 $59.9

Option 4: IM for Facilities with DIF>50MGD

Government 

(excluding Federal)

Small 10 $1.4 $0.1 $0.2 

Large 31 $8.1 $0.3 $1.0 

Private

Small 16 $6.0 $0.4 $2.5 

Large 485 $346.1 $0.7 $7.2 

Small 559 $383.0 $0.7 $7.2 

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a. Facility counts are weighted estimates and differ from the values reported in Exhibit X-8, above, which 

are un-weighted counts. Sample weighted values are needed in this table because costs were developed 

only for the explicitly analyzed Electric Generators facilities. See EA Appendix A.3: Used of Sample 

Weights in the Proposed Existing Facilities Rule Analysis for more detail. 

b. The All Facilities counts and cost values include 15 federal government-owned facilities and 10 private 

facilities owned by entities of unknown size. The individual facility count and cost estimates for the small 

and large entity categories exclude the values for these 25 facilities. 

c. Reflects maximum of un-weighted costs to explicitly analyzed facilities only. 

EPA’s analysis also considered whether this proposed rule may significantly or 

uniquely affect small governments in relation to non-government-owned Electric 

Generators. As reported in Exhibit X-9 the total compliance cost for 10 small 

government-owned Electric Generators incurring costs under today’s proposed rule are 

$1.5 million under Options 1 and 2 and, $12.5 million under Option 3, and $1.4 million 

under Option 4, or on a per facility basis, approximately $0.1 and $1.2 million per 

facility, respectively, for the three regulatory optionsOptions 1, 2, and 4, and $1.2 million

for Option 3. In addition, the highest annualized compliance cost for a small 

government-owned facility is $0.2 million under Options 1, 2, and 24, and $2.1 million 

under Option 3. In comparison, all small non-government-owned Electric Generators 

subject to today’s proposed rule are expected to incur annualized compliance costs of 

$7.7 million under Option 1, $32.3 million under Option 2, and $34.0 million under 

Option 3, and $ 6.0 million under Option 4, or $0.5, $2.0, $2.2, and $2.20.4 million per 

facility, respectively by regulatory option. The highest annualized cost for a small nongovernment-owned facility is $2.5 million under OptionOptions 1 and 4, and $10.9 

million under Options 2 and 3. On the basis of this comparison, as well, EPA further 

concludes that the compliance requirements of the proposed rule do not significantly or 

uniquely affect small governments. The EA report provides more detail on EPA’s 

analysis of impacts on governments. 

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3. Administrative Costs 

The requirements of Section 316(b) are implemented through the NPDES 

(National Pollutant Discharge Elimination System) permit program. Forty-six States and 

territories with NPDES permitting authority under section 402(b) of the CWA are 

expected to incur costs to administer the Existing Facilities Rule in their jurisdictions. 

EPA estimates that States and territories will incur four types of costs associated with five 

types of activities for implementing the requirements of today’s proposed rule: (1) startup activities to learn and understand the requirements of today’s regulation and to 

implement administrative structures and procedures for administering the regulation; (2) 

first permit issuance activities; (3) permit reissuance activities; (4) entrainment study 

costs, and (5) annual activities. EPA estimates that the total annualized cost for these 

activities will be $5.31 million for Option 1, $2.19 for Option 2, and $1.28 million for 

Option 3, and $4.06 for Option 4. Monitoring costs comprise the largest share of 

administrative costs under all three regulatory options. Exhibit X-10 presents the 

annualized costs of the major administrative activities. 

Exhibit X-10: Annualized Government Administrative Costs (Millions; 2009$) 

 Cost 

Activity Electric Generators Manufacturers Total In-Scope 

Option 1: IM Everywhere

 Start-up Activities $0.02 $0.02 $0.04 

 First Permit Issuance Activities $0.23 $0.24 $0.45 

 Annual Monitoring Activities $1.17 $1.12 $2.29 

 Entrainment Study $1.19 $0.97 $2.16 

 Permit Reissuance Activities $0.18 $0.18 $0.36 

 Total $2.79 $2.52 $5.31 

Option 2: IM Everywhere and EM for Facilities with DIF > >125 MGD

 Start-up Activities $0.02 $0.02 $0.04 

 First Permit Issuance Activities $0.17 $0.23 $0.35 

 Annual Monitoring Activities $0.36 $1.07 $1.37 

 Entrainment Study $0.00 $0.00 $0.00 

 Permit Reissuance Activities $0.14 $0.17 $0.31 

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 Total $0.69 $1.48 $2.19 

Option 3: IM&EMI&E Mortality Everywhere

 Start-up Activities $0.02 $0.02 $0.04 

 First Permit Issuance Activities $0.16 $0.13 $0.29 

 Annual Monitoring Activities $0.20 $0.52 $0.72 

 Entrainment Study $0.00 $0.00 $0.00 

 Permit Reissuance Activities $0.13 $0.10 $0.23 

 Total $0.51 $0.77 $1.28 

Option 4: IM for Facilities with DIF>50MGD

 Start-up Activities $0.02 $0.02 $0.04

 First Permit Issuance Activities $0.23 $0.06 $0.29

 Annual Monitoring Activities $1.04 $0.31 $1.35

 Entrainment Study $1.19 $0.97 $2.16

 Permit Reissuance Activities $0.18 $0.05 $0.23

 Total $2.65 $1.41 $4.06

E. Executive Order 13132: Federalism

Under Executive Order 13132, EPA may not issue an action that has federalism 

implications, that imposes substantial direct compliance costs on the State and local 

governments, and that is not required by statute, unless the Federal government provides 

the funds necessary to pay the direct compliance costs incurred by State and local 

governments, or EPA consults with State and local officials early in the process of 

developing the proposed action. 

This proposed rule does not have federalism implications. It will not have 

substantial direct effects on the States, on the relationship between the national 

government and the States, or on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 13132. This proposed rule 

would not alter the basic State-federal scheme established in the Clean Water Act under 

which EPA authorizes States to carry out the NPDES permitting program. EPA expects 

today’s proposed rule would have little effect on the relationship between, or the 

distribution of power and responsibilities among, the federal and State governments. 

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EPA expects an average annual burden of 21,785 hours with total average annual cost of 

$1.1 million under Option 1, 6,538 hours and $346,000 under Option 2, and 20,395 hours 

and $1.0 million under Option 3, for States to collectively administer this rule during the 

compliance period.129 After the initial compliance period, EPA expects an average 

annual burden of 23,550 hours with an average annual cost of $1.2 million for Option 1, 

2,528 hours and $154,000 for Option 2, and 16,988 hours and $841,000 for Option 3. 

EPA has identified 47 Phase II facilities that are owned by State or local government 

entities. The estimated average annual compliance cost incurred by these facilities is 

approximately $452,000 per facility under Option 1, $4.5 million under Option 2, and 

$1.1 million under Option 3. EPA does not expect Option 4 to impose substantial direct 

compliance costs on the State and local governments higher than Option 1, and therefore 

is not expected to pose Federalism implications. Thus, Executive Order 13132 does not 

apply to this rule. 

In the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between EPA and State and local governments, EPA specifically solicits 

comment on this proposed rule from State and local officials. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). It would not have substantial direct effects on 

tribal governments, on the relationship between the Federal government and the Indian 

 

129 Because of late revisions to the Existing Facilities Rule’s administrative requirements, EPA was unable 

to update these values from those developed earlier in the regulatory analysis. In addition, EPA did not 

estimate administrative costs for Option 4, but expects that these costs would be very similar to those 

estimated for Option 1.
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tribes, or the distribution of power and responsibilities between the Federal government 

and Indian tribes as specified in Executive Order 13175. The national cooling water 

intake structure requirements would be implemented through permits issued under the 

NPDES program. No tribal governments are currently authorized pursuant to section 

402(b) of the CWA to implement the NPDES program. In addition, EPA’s analyses 

show that no facility subject to today’s proposed rule is owned by tribal governments and 

thus this rule does not affect Tribes in any way in the foreseeable future. Thus, Executive 

Order 13175 does not apply to this action. 

EPA specifically solicits additional comment on this proposed action from tribal 

officials. 

G. Executive Order 13045: Protection of Children from Environmental Health 

Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those 

regulatory actions that concern health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to influence the regulation. This action is 

not subject to EO 13045 because it does not establish an environmental standard intended 

to mitigate health or safety risks. This rule establishes requirements for cooling water 

intake structures to protect aquatic organisms. 

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution, or Use

Executive Order 13211 (66 FR 28355 (May 22, 2001)) requires EPA to prepare 

and submit a Statement of Energy Effects to the Administrator of the Office of 

Information and Regulatory Affairs, Office of Management and Budget, for actions 
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identified as “significant energy actions.” Based on the Office of Management and 

Budget’s guidance for assessing the potential energy impact of regulations 

(http://www.whitehouse.gov/omb/memoranda/m01_27.html), the Agency does not 

anticipate that today’s rule will have a significant adverse effect on the supply, 

distribution, or use of energy and thus will not constitute a significant regulatory action 

under Executive Order 13211. 

The Agency analyzed the potential energy effects of today’s rule and other 

regulatory options considered for proposal. The potentially significant effects of today’s 

rule on energy supply, distribution or use concern the electric power sector. This analysis 

found that the rule’s compliance requirements would not cause effects in the electric 

power sector that would constitute a significant adverse effect under Executive Order 

13211. Namely, the Agency’s analysis found that today’s rule would not reduce 

electricity production in excess of 1 billion kilowatt hours per year or in excess of 500 

megawatts of installed capacity, and therefore would not constitute a significant 

regulatory action under Executive Order 13211. 

For more detail on the potential energy effects of this proposal, see Section VII of 

this preamble or Chapter 9 in the EA report. 

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 

voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 
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and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards. 

This proposed rulemaking does notmay involve technical standards. Therefore, 

EPA is not considering, for example in the measurement of impingement and 

entrainment. Nothing in this proposed rule would prevent the use of any voluntary 

consensus standards for such measurement where available, and EPA encourages 

permitting authorities and regulated entities to do so. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental justice. Its main provision directs federal agencies, to 

the greatest extent practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in the United States. 

EPA has determined that this proposed rule will not have disproportionately high 

and adverse human health or environmental effects on minority or low-income 

populations because it increases the level of environmental protection for all affected 

populations without having any disproportionately high and adverse human health or 

environmental effects on any population, including any minority or low-income 

population. Because EPA expects that this proposed rule will help to preserve the health 

of aquatic ecosystems located in reasonable proximity to 316(b) Existing Facilities, EPA 

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believes that all populations, including minority and low-income populations, will benefit 

from improved environmental conditions as a result of this rule.130 

To meet the objectives of Executive Order 12898, EPA assessed whether today’s 

proposed rule could distribute benefits among population sub-groups in a way that is 

significantly unfavorable to low income and minority populations. EPA compared key 

demographic characteristics of affected sub-state populations to those demographic 

characteristics at the level of the state. If the demographic profile of the sub-state “benefit 

population” were found to differ in a statistically significant and unfavorable131 way from 

the demographic profile of the state, generally, then the proposed rule might be assessed 

as yielding an unfavorable distribution of benefits, from the perspective of the public 

policy principles of Executive Order 12898. The two demographic variables of interest 

for this EJ analysis are those within the Fish Consumption Pathway (FCP) Module that 

best capture the minority and low-income aspects of the populations affected, which are 

annual household income and race. 132,133 Variable averages at the sub-state and state 

levels were compared to determine whether or not the demographic profile of the affected 

 

130 Affected populations include all individuals who live within a 50-mile radius of the facility who will be 

receiving a non-use benefit from the improved health of the aquatic ecosystem in the area, and any 

additional anglers who live outside of the 50-mile facility buffer and within a 50-mile radius of the reaches 

nearest to 316(b) Existing Facilities, who will be receiving the use benefit of improved catches as a result 

of the proposed rule. 

131 That is, the estimated benefit population is comprised of a significantly lower share of low-income 

and/or minority populations than the general population of the state. 

132 Annual household income data in the FCP Module is available for the following categories: less than 

$10,000; $10,000 to $19,999; $20,000 to $24,999; $25,000 to $29,999; $30,000 to $34,999; $35,000 to 

$39,999; $40,000 to $49,999; $50,000 to $74,999; $75,000 to $99,999; and more than $100,000. For this 

analysis as well as previous 316(b) rule analyses, these categories were combined into low- and not lowincome groups based on the U.S. Department of Health and Human Services’ poverty guidelines for a 

family of four living in the contiguous United States or D.C. The current (2009) poverty guideline is 

$22,050, which falls within the $20,000 to $24,999 income range (U.S. HHS, 2009). For the current 

analysis, EPA used $20,000 as the threshold for separating populations into low- and not low-income 

groups. 

133 Race categories used in the analysis include white, black or African American, Asian or Native 

Hawaiian or Other Pacific Islander, American Indian or Alaska Native, and some other race. 
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population was consistent with the state profile (for details see Chapter 9 of the EA 

report). 

The comparison of minority populations affected by the 316(b) Existing Facilities 

to the affected states’ overall populations found no statistically significant difference 

between these groups. While low-income populations were less present in the benefit 

population than in the State’s overall population in many states, the differences were 

generally very small and the two groups were not found to be significantly different. 

EPA thus believes that the proposed regulation does not systematically discriminate 

against, or exclude or deny participation of, the lower income population group or the 

minority population group in the benefits of the proposed regulation in a way that would 

be contrary to the intent of E.O. 12898. Because today’s proposed regulation requires all

316(b) Existing Facilities to achieve compliance regardless of location, there can be no 

systematic discrimination or exclusion of low income or minority populations from 

participation in the rule’s benefits, based, for example, on selection of only specific 

facilities to which the regulation would apply.134 EPA thus concludes, overall, that the 

proposed regulation is consistent with the policy intent of E.O. 12898.Anecdotally, 

minority (e.g., Native American) and low-income populations may be more likely to 

include a larger proportion of subsistence fishermen. Since this rule will increase 

abundance of all fish species in the areas affected by cooling water intakes, it may 

provide a particular benefit to subsistence fishermen. To the extent that minority and 

low-income populations are over-represented in this group, they may especially benefit 

from this rule.

 

134 Additionally, in states in which low-income populations are less present in the benefits group than in the 

state population overall, these populations are not subject to the environmental damages today’s rule seeks 

to ameliorate to the same extent as other income groups. 
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K. Executive Order 13158: Marine Protected Areas

Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to 

“expeditiously propose new science-based regulations, as necessary, to ensure 

appropriate levels of protection for the marine environment.” EPA may take action to 

enhance or expand protection of existing marine protected areas and to establish or 

recommend, as appropriate, new marine protected areas. The purpose of the Executive 

Order is to protect the significant natural and cultural resources within the marine 

environment, which means “those areas of coastal and ocean waters, the Great Lakes and 

their connecting waters, and submerged lands thereunder, over which the United States 

exercises jurisdiction, consistent with international law.” 

Today’s proposed rule recognizes the biological sensitivity of tidal rivers, 

estuaries, oceans, and the Great Lakes and their susceptibility to adverse environmental 

impact from cooling water intake structures. This rule provides stringent requirements to 

minimize adverse environmental impact for cooling water intake structures located on 

these types of waterbodies, including potential reduction of intake flows to a level 

commensurate with closed-cycle recirculating cooling system for facilities that withdraw 

certain proportions of water from estuaries, tidal rivers, and oceans. 

EPA used GIS data of the locations of Marine Protected Areas (MPAs) from the 

national MPA program (http://www.mpa.gov/helpful_resources/inventory.html) to locate 

316(b) existing facilities with intakes within MPAs. Under Option 1, 87 percent of inscope facilities within MPAs obtain reductions in impingement mortality, while 

reductions in entrainment mortality is not reduced at any facilitiescannot be estimated 

because they will be based on site-specific determinations of BTA. Under Options 2 and 
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3, impingement mortality is reduced at 92 and 97 percent of 316(b) facilities in MPAs, 

while the addition of closed-cycle cooling towers results in reduced entrainment mortality 

at 72 and 92 percent of in-scope facilities found in MPAs, respectively. Therefore, EPA 

expects today's proposed regulation would advance the objective of the Executive Order 

to protect marine areas. For more details of the methodology used in this analysis and the 

specific water bodies expected to be improved, see Section 5 in Chapter 9 in the EA 

report. 

XI. Solicitation of Data and Comments 

A. General Solicitation of Comment

 EPA encourages public participation in this rulemaking. EPA asks that 

commenters address any perceived deficiencies in the record supporting this proposal and 

that suggested revisions or corrections to the rule, preamble or record be supported by 

data. EPA invites all parties to coordinate their data collection activities with the Agency 

to facilitate cost-effective data submissions. Please refer to the FOR FURTHER 

INFORMATION section at the beginning of this preamble for technical contacts at EPA. 

 Requests for comment on specific issues are scattered throughout this preamble in 

the sections where such issues are discussed. In addition, EPA specifically requests 

comment on the issues discussed below.

B. Specific Solicitation of Comments and Data

1. Definition of “Design Intake Flow” 

EPA requests comment on whether the definition of DIF should be further revised 

to clarify that EPA intends for the design intake flow to reflect the maximum volume of 
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water that a plant can physically withdraw from a source waterbody over a specific time 

period. This would mean that a plantfacility that has permanently taken a pump out of 

service or has flow limited by piping or other physical limitations should be able to 

consider such constraints when reporting its DIF. See Section V.G. 

2. National BTA Categorical Standards for Offshore Oil and Gas Extraction and 

Seafood Processing Facilities 

EPA requests comment and data on the appropriateness of a single BTA 

categorical standards for offshore oil and gas extraction facilities and seafood processing 

facilities. Today’s rule would continue to require that the BTA for existing offshore oil 

and gas extraction facilities and seafood processing facilities be established by NPDES 

permit directors on a case-by-case basis using best professional judgment. See Section 

V.H. 

3. ) Cost-cost Alternative from Phase II Rule

EPA does not have technical data for all existing facilities. EPA concluded that 

the Phase II rule costs provided in Appendix A are not appropriate for use in a facilitylevel cost-cost test. See Section III. Moreover, under the national requirements EPA is 

proposing today, EPA concluded that a specific cost-cost variance is not necessary 

because the Director already has the discretion to consider such factors. EPA requests 

comment on these conclusions.

4) Entrainment Survival

There are circumstances where certain species of eggs have been shown to survive 

entrainment under certain conditions, however EPA has not received any new data for 

either the most common species or the species of concern most frequently identified in 

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available studies. For purposes of today's national rulemaking, entrainment is still 

presumed to lead to 100 percent mortality. See Section VI. Today’s proposed rule would 

allow facilities to demonstrate, on a site-specific basis, that entrainment mortality of one 

or more species of concern is not 100 percent. EPA requests comment on this approach.

5. Alternative Impingement Mortality Compliance Requirements

EPA requests comment and data on a provision that would require facilities 

seeking to comply with the impingement mortality standard by meeting an intake velocity 

requirement either to demonstrate that the species of concern is adequately protected by 

the maximum intake velocity requirements, or else to employ fish friendly protective 

measures including a fish handling and return system. EPA is considering this provision 

because the Agency is concerned that some facilities that comply with the impingement 

mortality requirements by reducing intake velocity to 0.5 fps or less, may still impact 

species of concern. See Section VI.D.1.a. 

46. Monthly and Annual Limits on Impingement Mortality

EPA requests comment on the need to tailor the impingement mortality 

requirements of today's proposal to account for site-specific circumstances and/or 

technologies, including location of cooling water intakes that impinge relatively few fish 

or other approaches that achieve impingement mortality reductions equivalent to the 

proposed performance standards. For example, if EPA were to consider number of fish 

killed as an alternative, it might statistically model the data or select the minimum 

observed value. Studies and information supporting these alternatives would be most 

helpful. EPA also requests comment on the monthly and annual limits in the proposed 

rule and way in which they were calculated.
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7. Flow Basis for Option 

EPA requests comment on both the threshold and the flow basis for ana variation 

of option 2 that useswould use 125 MGD Actual Intake Flow (AIF) rather than a 125 

MGD Design Intake Flow (DIF) as the threshold. See Section VI.D.2. 

58) Waterbody Type as a Basis for Different Standards

EPA’s reanalysis of impingement and entrainment data does not support the 

premise that the difference in the density of organisms between marine and fresh waters 

justifies different standards. More specifically, the average density of organisms in fresh 

waters may be less than that found on average in marine waters, but the actual density of 

aquatic organisms in some specific fresh water systems exceeds that found in some 

marine waters. EPA also believes the different reproduction strategies of freshwater 

versus marine species make broad characterizations regarding the density less valid a 

rationale for establishing different standards for minimizing adverse environmental 

impact. EPA requests comment on its proposal not to differentiate requirements by water 

body type. 

9) Capacity Utilization Rating as a Basis for Different Standards

Electric generating facilities may still continue to withdraw significant volumes of 

water when not generating electricity. Further, EPA found that load-following and 

peaking plants operate at or near 100 percent capacity (and therefore 100 percent design 

intake flow) when they are operating. Peaking facilities (those with a CUR of less than 

15 percent, as defined in the 2004 Phase II rule) may withdraw relatively small volumes 

on an annual basis, but if they operate during biologically important periods such as 

spawning seasons or migrations, then they may have nearly the same adverse impact as a 
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facility that operates year round. EPA requests comment on its decision not to exclude 

facilities with a low capacity utilization rate. Comments who believe that EPA should 

include a CUR threshold in the final rule should provide a suggested threshold and 

explain the basis for it.

10. Flow Commensurate with Closed-Cycle Cooling 

EPA requests comment on whether the demonstration that a facility’s flow 

reduction will be commensurate with closed-cycle cooling should be based on a defined 

metric, or determined by the permitting authority on a site-specific basis for each facility. 

EPA is proposing that a facility seeking to demonstrate flow reduction commensurate 

with closed-cycle cooling using flow reduction technologies and controls other than 

through closed-cycle cooling (e.g., through seasonal flow reductions, unit retirements, 

and other flow reductions) would have to demonstrate total flow reductions 

approximating 97.5% for freshwater withdrawals and 94.9% for saltwater withdrawals. 

See Section IX.D. 

611. Credits for Unit Closures 

EPA requests comments on the proposed approach to allow credits for unit 

closures to be valid for 10 years from the date of the closure. In EPA’s current thinking 

this approach reasonably allows facilities to get credit for flow reductions attributable to 

unit closures, but also requires such facilities to make future progress to ensure its 

operations reflect best available entrainment controls. See Section IX.D. 

712. Land Constraints 

EPA requests comment on the use of a ratio for determining the land constraint 

threshold for retrofit construction of cooling tower, as well as data for determining 
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alternative thresholds. EPA has not identified any facilities with more than the 160 

acres/1000MW threshold1000MWs that EPA believes would be unable to construct 

retrofit cooling towers and believes that power plants that exceed. EPA is exploring the 

use of such a given ratio of facility size to facility acreage should have ample 

spacesupport determinations regarding adequate land area to construct retrofit cooling 

towers. See Section IX.D (footnote 1). 

813. Proposed Implementation Schedule 

EPA requests comment on its proposed schedule for implementing the proposed 

rule. The proposed schedule uses a phased approach for information submittal, requiring 

some facilities to submit application materials as soon as six months after rule 

promulgation. The longest timeframe for information submittal would not exceed seven 

years and six months. EPA solicits comment on the proposed schedule, and specifically 

seeks comment and data on the appropriate amount of time to collect data, conduct 

reviews, obtain comment, provide for public participation, and issue final permit 

conditions. See Section IX.E. 

914. Methods for Evaluating Latent Mortality Effects Resulting from Impingement 

EPA requests comment on methods for evaluating latent mortality effects 

resulting from impingement. EPA requests comment on whether it should specifically 

establish 24 or 48 hours after initial impingement as the time at which to monitor 

impingement mortality. EPA’s record demonstrates that a holding time of no more than 

48 hours is optimal for evaluating the latent mortality associated with impingement while 

at the same time minimizing mortality associated with holding the organisms. See 

Section IX.F.1. 
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1015. Counting Impinged Organisms with the “Hypothetical Net” 

EPA requests comment on the “hypothetical net” approach to measuring 

impingement mortality. Facilities could apply a “hypothetical net” in that they could 

elect to only count organisms that would not have passed through a net with 3/8” mesh. 

For example, a facility that uses a fine-mesh screen or diverts the flow directly to a 

sampling bay would only need to count organisms that could be collected if the flow 

passed through a net, screen, or debris basket fitted with 3/8” mesh spacing. See Section 

IX.F.1. EPA further solicits comment on alternative approaches that would not penalize 

facilities for employing fine mesh screens.

1116. Incentives for Reducing I&E by Reducing Water Withdrawals 

 EPA requests comment on incentives or alternative requirements for 

exceptionally energy efficient or water efficient facilities. See Section III. EPA also 

solicits comment on the regulatory provisions that encourage the use of recycled water as 

cooling water, including reclaimed water from wastewater treatment plants and process 

water from manufacturing facilities, EPA solicits comment on other incentives to 

encourage use of recycled water to supplement or replace marine, estuarine, or freshwater 

intakes. 

1217. Options which provide closed-cycle cooling as BTA 

 EPA solicits comment on regulatory options that establish closed-cycle cooling as 

BTA. EPA specifically requests comment on the regulatory options 2 and 3 included in 

today’s proposal, which would establish closed-cycle cooling as BTA for EM at a DIF of 

2 MGD and 125 MGD, respectively. See Section VI and VII. EPA further solicits 

comment and supporting data on alternative thresholds, including whether such 
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alternative thresholds should be based on DIF or AIF. EPA also solicits comment and 

supporting data for alternative criteria that would establish closed-cycle cooling as BTA 

for some facilities. 

1318. Costs of Controls to Eliminate Entrapment

 EPA assumes facilities with modified traveling screens including a fish handling 

and return system would meet the proposed requirements to eliminate entrapment of fish 

and shellfish. EPA believes those facilities with an offshore velocity cap leading to a

forebay but without a fish return system would incur costs to meet the proposed 

requirements for entrapment. For facilities with closed-cycle cooling systems, EPA does 

not have data on the number of facilities that also have a fish handling and return system. 

Further, EPA does not have data on the number of facilities that have less than 0.5 feet 

per second intake velocity but have a cooling water intake system that may cause 

entrapment. EPA solicits comment and data on the types and numbers of facilities with a 

cooling water intake system that may cause entrapment, and the costs to eliminate 

entrapment.

19. Analysis of new capacity 

 EPA requests comment on the number of new units and the amount of new 

capacity construction projected. See Section VII. 

1420. Monitoring Reports 

 EPA solicits comment on how frequently I&E mortality monitoring reports 

should be submitted. EPA further solicits comment on incorporating the monitoring 

reports into monthly DMRs, or whether less frequent reporting is appropriate. See 
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Section IX.EPA also requests comment on whether minimum monitoring frequencies 

should be established in this rule or left to the discretion of the Director. See Section IX.

1521. Seasonal Operation of Cooling Towers 

 EPA solicits comment on an option that would require cooling towers on some or 

all facilities but recognize the site-specific nature of EM by allowing seasonal operation 

of cooling towers during peak entrainment season. EPA also requests comment on 

including a similar provision for new units at existing facilities, which are required to 

achieve I&E reductions commensurate with closed cycle cooling in the proposed rule. 

16. Definition of new22. New unit provision 

 EPA solicits comment on the new unit provision. Specifically, EPA solicits 

comment on the clarity of the definition of new unit, and solicits comment on clarifying 

the regulatory status of new whether it should be expanded to include other units at an 

existing facility. EPA furthersuch as those that are repowered or rebuilt. EPA also solicits 

comment on the regulatory definitions of new unit and repowering at 125.93whether the 

new unit provision should be deleted, therefore subjecting these units to the same sitespecific entrainment BTA determination required of existing units. 

1723. Review Criteria to Guide Evaluation of Entrainment Feasibility Factors 

 EPA solicits comment on the criteria specified in the regulation for guiding the 

evaluation of closed-cycle cooling as BTA for EM. EPA further solicits comment on 

additional criteria that EPA should address, and whether such criteria should be 

developed in the regulation or provided in guidance. 

1824. Alternative Procedures for Visual or Remote Inspections 
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EPA requests comment on its proposal to permit the Director to establish 

alternative procedures for conducting visual or remote inspections during periods of 

inclement weather. See Section IX.F.EPA also requests comment on whether the rule 

should specific minimum frequencies for visual or remote inspections, or leave this to the 

determination of the permitting authority. See Section IX.F.

1925. Threshold for In-Scope Facilities

EPA requests comment on the threshold of DIF greater than 2 MGD for 

identifying facilities in-scope of this rule. 

26. Application Requirements

 EPA requests comment on the burden and practical utility of all of the proposed 

application requirements. EPA is particularly interested in the burden of application 

requirements to facilities with DIF < 50 MGD. EPA also requests comment on its 

proposal to limit application requirements for facilities that have already installed closedcycle cooling, or opt to do so without a site-specific assessment of BTA, and whether 

there are additional requirements that could be relaxed for this group.

27. Comment from State and Local Officials 

EPA specifically requests comment on this proposed rule from State and local 

officials. See Section X.E. 

2028. Comment from Tribal Officials 

EPA specifically requests additional comment on this proposed action from Tribal 

officials. See Section X.F.

Dated: 

Lisa P. Jackson, 

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Administrator. 

For reasons set out in the preamble, 40 CFR chapter 125 is proposed to be amended as 

follows: 

PART 122 – EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE ELIMINATION SYSTEM

1. The authority citation for part 122 continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 

2. Sections 122.21(r)(1)(ii) and 122.21(r)(5) are no longer suspended. In addition, § 

122.21(r)(1)(ii), § 122.21(r)(4), and § 122.21(r)(5) are revised to read as follows: 

§ 122.21 Application for a permit (applicable to State programs, see § 123.25) 

* * * * * 

 (r) * * * 

 (ii) Existing facilities. 

(A) The owner or operator of an existing facility as defined in part 125, 

subpart J, of this chapter must with a cooling water intake structure that 

supplies cooling water exclusively for operation of a wet or dry cooling 

system and that meets the definition of closed cycle recirculating system at 

125.92(c) must submit to the Director for review the information required 

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under paragraphs (r)(2), (3), (4),and (6). The owner or operator of all 

other existing facilities as defined in part 125, subpart J, of this chapter 

must also submit to the Director for review the information required under 

paragraphs (r) (5), (6),- (7), and (8) of this section as part of its permit 

application.

(B) The owner or operator of an existing facility as defined in part 

125, subpart J, of this chapter that withdraws greater than 125 MGD actual 

intake flows (AIF) of water for cooling purposes must also submit to the 

Director for review the information required under paragraphs (r)(9), (10), 

(11), and (12). 

 

(C) New units at existing facilities. New units at existing facilities with 

cooling water intake structures as defined in part 125, subpart J, of this 

chapter must provide an update to the information required under 

paragraphs (r)(2), (3), and (6) of this section and § 125.95 of this chapter. 

Requests for alternative requirements under § 125.94(d)(4) of this chapter 

must be submitted with your permit application.

* * * * * 

(2) Source water physical data 

The owner or operator of the facility must submit: 

(i) A narrative description and scaled drawings showing the physical 

configuration of all source water bodies used by your facility, including areal dimensions, 

depths, salinity and temperature regimes, and other documentation that supports your 
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determination of the water body type where each cooling water intake structure is 

located; 

(ii) Identification and characterization of the source waterbody’s hydrological and 

geomorphological features, as well as the methods you used to conduct any physical 

studies to determine your intake’s area of influence within the waterbody and the results 

of such studies; and, 

(iii) Locational maps. 

(3) Cooling water intake structure data 

The owner or operator of the facility must submit:

(i) A narrative description of the configuration of each of your cooling water 

intake structures and where it is located in the water body and in the water column; 

(ii) Latitude and longitude in degrees, minutes, and seconds for each of your 

cooling water intake structures; 

(iii) A narrative description of the operation of each of your 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; 

(iv) A flow distribution and water balance diagram that includes all sources of 

water to the facility, recirculating flows, and discharges; and 

(v) Engineering drawings of the cooling water intake structure. 

(4) Source water baseline biological characterization data 

The owner or operator of each facility must submit the following information in order to 

characterize the biological community in the vicinity of the cooling water intake structure 
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and to characterize the operation of the cooling water intake structures. This supporting 

information must include any available existing data. However, you may also supplement 

the data using newly conducted field studies. In the case of a new facility, the Director 

may also use this information in subsequent permit renewal proceedings to determine if 

your Design and Construction Technology Plan as required in § 125.86(b)(4) of this 

chapter should be revised. The information you submit must include: 

(i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this section that are not 

available and efforts made to identify sources of the data; 

(ii) A list of species (or relevant taxa) for all life stages and their relative 

abundance in the vicinity of the cooling water intake structure; 

(iii) Identification of the species and life stages that would be most susceptible to 

impingement and entrainment. Species evaluated must include the forage base as well as 

those most important in terms of significance to commercial and recreational fisheries; 

(iv) Identification and evaluation of the primary period of reproduction, larval 

recruitment, and period of peak abundance for relevant taxa; 

(v) Data representative of the seasonal and daily activities (e.g., feeding and water 

column migration) of biological organisms in the vicinity of the cooling water intake 

structure; 

(vi) Identification of all threatened, endangered, and other protected species that 

might be susceptible to impingement and entrainment at your cooling water intake 

structures; 

(vii) Documentation of any public participation or consultation with Federal or 

State agencies undertaken in development of the plan; and 
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(viii) If you supplement the information requested in paragraph (r)(4)(i) of this 

section with data collected using field studies, supporting documentation for the Source 

Water Baseline Biological Characterization must include a description of all methods and 

quality assurance procedures for sampling, and data analysis including a description of 

the study area; taxonomic identification of sampled and evaluated biological assemblages 

(including all life stages of fish and shellfish); and sampling and data analysis methods. 

The sampling and/or data analysis methods you use must be appropriate for a quantitative 

survey and based on consideration of methods used in other biological studies performed 

within the same source water body. The study area should include, at a minimum, the 

area of influence of the cooling water intake structure. 

(ix) Identification of protective measures and stabilization activities that have 

been implemented, and a description of how these measures and activities affected the 

baseline water condition in the vicinity of the intake. 

(5) Cooling water system data 

The owner or operator of the facility must provide the following information for each 

cooling water intake structure used: 

(i) A narrative description of the operation of the cooling water system and its 

relationship to cooling water intake structures; the proportion of the design intake flow 

that is used in the system including a distribution of water used for contact cooling, noncontact cooling, and process uses; a distribution of water reuse (to include cooling water 

reused as process water, process water reused for cooling, and the use of gray water for 

cooling); description of reductions in total water withdrawals including cooling water 

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intake flow reductions already achieved through minimized process water withdrawals; 

description of any cooling water that is used in a manufacturing process either before or 

after it is used for cooling, including other recycled process water flows; the proportion 

of the source waterbody withdrawn (on a monthly basis); the number of days of the year 

the cooling water system is in operation and seasonal changes in the operation of the 

system, if applicable; 

(ii) Design and engineering calculations prepared by a qualified professional and 

supporting data to support the description required by paragraph (r)(5)(i) of this section; 

(iii) Description of existing impingement and entrainment technologies or 

operational measures and a summary of their performance, including but not limited to 

reductions in entrainment mortality due to intake location and reductions in total water 

withdrawals and usage, and; 

(iv) Description of specific efficiencies in energy production for each producing 

unit that result in the use of less cooling water, including but not limited to combined 

cycle and cogeneration.

 

(6) Impingement Mortality Reduction Plan 

The Impingement Mortality Reduction Plan must identify the approach the owner or 

operator of the facility will use to meet the BTA standards for impingement mortality at 

125.94(b), including: 

(i) Identification of the method of intended compliance with the BTA standards 

for impingement mortality for each intake by either conducting a direct measure of 
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impingement mortality through sampling or, by demonstrating that the maximum design 

intake velocity is equal to or less than 0.5 feet per second, or by measuring the intake 

velocity and demonstrating that the actual intake velocity is equal to or less than 0.5 feet 

per second. 

(ii) A(ii) If you plan to comply with the BTA standards for impingement mortality 

requirements by conducting a direct measure of impingement mortality through 

sampling, you must provide a description of the study area including the area of influence 

of each cooling water intake structure and a taxonomic identification of the sampled or 

evaluated biological assemblages including all life stages of fish and shellfish that may be 

susceptible to impingement. 

(iii) AIf you plan to comply with the BTA standards for impingement mortality 

requirements by conducting a direct measure of impingement mortality through 

sampling, you must also provide a description of any sampling or monitoring approach to 

be used in measuring impingement mortality, including: 

(A) The duration and frequency of monitoring, subject to the minimum 

monitoring requirements established by the Director under § 125.96, but in no 

case less frequently than a biweekly basis; 

(B) The monitoring locations; 

(C) The organisms to be monitored, and; 

(D) The method in which naturally moribund organisms are identified and 

taken into account. 
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(iv) If you plan to comply with the BTA standards for impingement mortality 

requirements by demonstrating that the design intake velocity is equal to or less than 0.5 

feet per second, documentation including: 

(A) A demonstration that the maximum design intake velocity is equal to 

or less than 0.5 feet per second; 

(B) A description of technologies or operational measures to keep any 

debris from blocking the intake at no more than 15 percent of the opening of the 

intake; , and;

(C) A description of technologies or operational measures to prevent 

entrapment of fish or shellfish by the cooling water intake system, and;. 

(D) Documentation that all species of concern are protected by a 

maximum intake velocity of 0.5 feet per second.

(v) If you plan to comply with the BTA standards for impingement mortality by 

demonstrating thatmeasuring the actualintake velocity to demonstrate the intake velocity 

is equal to or less than 0.5 feet per second, documentation including: 

(A) A demonstrationVelocity monitoring to demonstrate that the actual 

intake velocity is equal to or less than 0.5 feet per second; 

(B) Documentation of the technologies and operational measures taken to 

ensure the maximumactual intake velocity will not exceed 0.5 feet per second, 

and; 

(C) A description of technologies or operational measures to keep any 

debris from blocking the intake at no more than 15 percent of the opening of the 

intake; 
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(D(C) A description of technologies or operational measures to prevent 

entrapment of impingeable fish or shellfish by the cooling water intake system, 

and; .

 (vi) For intakes that withdraw from oceans and tidal waters, a description of the 

measures and technologies to reduce impingement mortality of shellfish to a level 

comparable to that achieved by properly deployed and maintained barrier nets, including 

but not limited to cylindrical wedgewire screens, seasonal deployment of barrier nets, 

intake location, and/or an appropriate handling and return system. 

(viii) If you plan to comply with the BTA standards for impingement mortality in 

125.94(b)(2)(i) youvii) You must demonstrate that the cooling water intake structure does 

not lead to entrapment. This demonstration must include documentation that organisms 

are excluded from entering any portion of the intake where there is not an opportunity for 

them to escape. If your cooling water intake structure results in entrapment and the only 

way for fish to escape is by being impinged upon the screens or to pass through the 

facility (in the case of open intakes), the facilityyou must document that additional 

protective measures will be deployed such as, for example, modification of traveling 

screens with collection buckets designed to minimize turbulence to aquatic life, addition 

of a guard rail or barrier to prevent loss of fish from the collection bucket, replacement of 

screen panel materials with smooth woven mesh, a low pressure wash to remove fish 

prior to any high pressure spray to remove debris on the ascending side, and a fish return 

with adequate flow to ensure fish return to the source water body. If you cannot 

document these additional protective measures, you must count all entrapment of 

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(ix(viii) Documentation of all methods and quality assurance/quality control 

procedures for sampling and data analysis. The proposed sampling and data analysis 

methods must be appropriate for a quantitative survey and include consideration of the 

methods used in other studies performed in the source waterbody. 

(7) Performance studies 

TheIf the owner or operator of the facilityhas conducted studies, or chooses to use 

previously conducted studies obtained from other facilities, you must submit a 

description of those biological survival studies conducted at the facility, together with 

underlying data, and a summary of any conclusions or results, including but not limited 

to: 

(i) Site-specific studies addressing technology efficacy, through-plant entrainment 

survival, and other impingement and entrainment mortality studies; 

(ii) Studies conducted at other locations including an explanation as to why the 

data from other locations is relevant and representative of conditions at your facility. 

(iii) Studies older than 10 years must include an explanation of why the data is 

still relevant and representative of conditions at your facility. 

(8) Operational status 

The owner or operator of the facility must submit a description of its operational status 

for each generating, production, or process unit, including but not limited to: 

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(i) Descriptions of individual unit operating status including age of each unit, 

capacity utilization (or equivalent) for the previous 5 years, and any major upgrades 

completed within the last 15 years, including but not limited to boiler replacement, 

condenser replacement, turbine replacement, or changes to fuel type; 

(ii) Descriptions of completed, approved, or scheduled uprates and NRC 

relicensing status of each unit at nuclear facilities; 

(iii) Descriptions of plans or schedules for decommissioning or replacement of 

units; 

(iv) Descriptions of current and future production schedules at manufacturing 

facilities; and, 

(v) Descriptions of plans or schedules for any major upgrades or repairsnew units

planned within the next 5 years. 

(9) Entrainment characterization study 

For all species and life stages identified under the requirements of 122.21(r)(4), the 

owner or operator of the facility must: 

(i) Develop and submit an entrainment mortality data collection plan for review 

and comment by the Director. The entrainment mortality data collection plan must 

include, at a minimum: 

(A) The duration and frequency of monitoring; 

(B) The monitoring locations, including a description of the study area 

and the area of influence of the cooling water intake structure(s); 

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(C) A taxonomic identification of the sampled or evaluated biological 

assemblages; 

(D) Identification of all life stages of fish and shellfish, including 

identification of any surrogate life stages used, and identification of data 

representing both motile and non-motile life-stages of organisms; 

(E) The organisms to be monitored, including species of concern and 

threatened or endangered species; 

(F) Any other organisms identified by the Director; 

(G) The method by which latent mortality would be identified; 

(H) Documentation of all methods and quality assurance/quality 

control procedures for sampling and data analysis. The proposed 

sampling and data analysis methods must be appropriate for a quantitative 

survey. 

(ii) Obtain peer review of the entrainment mortality data collection plan. You 

must select peer reviewers in consultation with the Director, including that the Director 

may require additional peer reviewers. The Director may consult with EPA and Federal, 

State and Tribal fish and wildlife management agencies with responsibility for fish and 

wildlife potentially affected by the cooling water intake structure(s) to determine which 

peer review comments must be addressed by the final plan. You must provide an 

explanation for any significant reviewer comments not accepted. Peer reviewers must 

have appropriate qualifications in biology, engineering, hydrology, or other fields and 

their names and credentials must be included in the peer review report. 
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(iii) Implement the entrainment mortality data collection plan no later than 6 

months after submission of the entrainment mortality data collection plan to the Director. 

(iv) The Entrainment Characterization Study must include all of the following 

components: 

4. Taxonomic identifications of all life stages of fish, shellfish, and any 

species protected under Federal, State, or Tribal Law (including threatened 

or endangered species) that are in the vicinity of the cooling water intake 

structure(s) and are susceptible to entrainment; 

5. Characterization of all life stages of fish, shellfish, and any species 

protected under Federal, State, or Tribal Law (including threatened or 

endangered species), including a description of the abundance and temporal 

and spatial characteristics in the vicinity of the cooling water intake 

structure(s), based on sufficient data to characterize annual, seasonal, and 

diel variations in entrainment, and including but not limited to variations 

related to climate and weather differences, spawning, feeding and water 

column migration. These may include historical data that are representative 

of the current operation of your facility and of biological conditions at the 

site; and, 

6. Documentation of the current entrainment of all life stages of fish, 

shellfish, and any species protected under Federal, State, or Tribal Law 

(including threatened or endangered species). The documentation may 

include historical data that are representative of the current operation of 

your facility and of biological conditions at the site. Entrainment samples to 
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support the facility’s calculations must be collected during periods of 

representative operational flows for the cooling water intake structure and 

the flows associated with the samples must be documented. Data for 

specific organism mortality or survival that is applied to other life-stages or 

species must be identified. The owner or operator of the facility must 

identify and document all assumptions and calculations used to determine 

the total entrainment and entrainment mortality for that facility. 

7. Information collected to meet 122.21(r)(4) and (r)(7) may be used in 

developing

7. the Entrainment Characterization Study. 

(10) Comprehensive technical feasibility and cost evaluation study. 

The owner or operator of the facility must submit an engineering study of the technical 

feasibility and incremental costs of candidate entrainment mortality control technologies. 

The study must include the following: 

(i) Technical feasibility. At a minimum, the owner or operator of the facility must 

conduct a study to evaluate the technical feasibility of closed-cycle recirculating systems 

(cooling towers) and fine mesh screens with a mesh size of 2mm or smaller. This study 

must include: 

(A) A description of all technologies and operational measures 

considered (including alternative designs of closed-cycle recirculating 

systems including, but not limited to,such as natural draft cooling towers, 

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mechanical draft cooling towers, hybrid designs, and compact or multicell arrangements); 

(B) A discussion of land availability, including an evaluation of 

adjacent land including consideration of the availability of all acres 

including, but not limited to, acres and acres potentially available due to 

generating unit retirements, production unit retirements, other buildings 

and equipment retirements, and ponds, coal piles, rail yards, transmission 

yards, and parking lots, including those no longer in use; decommissioning 

of existing units; repurposing of existing land uses; and

(C) Documentation that fewer than 160 acres per gigawatt (1000 

megawatts) capacity are available (for power producing facilities); 

documentation that the purchase or other acquisition of property adjacent 

or near to the facility is not feasible; and 

(D) Documentation of factors other than cost that may make a 

candidate technology impractical or infeasible for further evaluation. 

(ii) Other entrainment mortality control technologies. Following submission of the 

engineering study, the Director may require evaluation of additional technologies for 

reducing entrainment mortality. 

(iii) Cost evaluations. The study must include engineering cost estimates of all 

technologies considered in (i) and (ii) of this section. All costs must be presented as the 

net present value (NPV) of the social costs and the corresponding annual value. In 

addition to the required social costs, you may choose to provide facility level compliance 

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costs, however you must separately discuss facility level compliance costs and social 

costs. You must discuss and provide documentation for: 

(A) Any outages, downtime, or other impacts to facility revenue. 

Depreciation schedules, interest rates and related assumptions must be 

identified. 

(B) Costs and explanation of any additional facility modifications 

necessary to support construction and operation of technologies 

considered in (i) and (ii) of this section, including but not limited to 

relocation of existing buildings or equipment, reinforcement or upgrading 

of existing equipment, and additional construction and operating permits. 

Depreciation schedules, interest rates, useful life of the technology 

considered, and any related assumptions must be identified. 

(C) Costs and explanation for addressing any non-water quality 

impacts

(C) identified in 122.21(r)(12). The cost evaluation must include a 

discussion of all reasonable attempts to mitigate each of these cost 

factorsimpacts. 

(iv) Peer review. Obtain peer review of the comprehensive technical feasibility 

and cost evaluation study. You must select peer reviewers in consultation with the 

Director, including that the Director may require additional peer reviewers. The Director 

may consult with EPA and Federal, State and Tribal fish and wildlife management 

agencies with responsibility for fish and wildlife potentially affected by the cooling water 

intake structure(s) to determine which peer review comments must be addressed by the 

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final study. You must provide an explanation for any significant reviewer comments not 

accepted. Peer reviewers must have appropriate qualifications in biology, engineering, 

hydrology, or other fields and their names and credentials must be included in the peer 

review report. 

(11) Benefits valuation study 

The owner or operator of the facility must submit a detailed discussionan evaluation of 

the magnitude of water quality benefits, both monetized and non-monetized, of the 

candidate entrainment mortality reduction technologies and operational measures 

evaluated in 122.21(r)(10), including but not limited to: 

(i) Incremental changes in the numbers of fish and shellfish, for all life stages, lost 

due to impingement mortality and entrainment mortality as defined in 125.92; 

(ii) Identification of basis for any monetized values you assigned to changes in 

commercial and recreational species of concern; , forage fish, and shellfish, and to 

any other ecosystem or non-use benefits; 

(iii) Discussion of recent mitigation efforts already completed; 

(iv) Identification of other benefits to the environment and local communities, 

including but not limited to improvements for mammals, birds, and other organisms and 

aquatic habitats. 

(v) Peer review. Obtain peer review of the benefits valuation study. You must 

select peer reviewers in consultation with the Director, including that the Director may 

require additional peer reviewers. The Director may consult with EPA and Federal, State 

and Tribal fish and wildlife management agencies with responsibility for fish and wildlife 
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potentially affected by the cooling water intake structure(s) to determine which peer 

review comments must be addressed by the final study. You must provide an explanation 

for any significant reviewer comments not accepted. Peer reviewers must have 

appropriate qualifications in biology, engineering, hydrology, or other fields and their 

names and credentials must be included in the peer review report. 

(12) Non-water Quality and Other Environmental Impacts Study 

The owner or operator of the facility must submit a detailed site-specific discussion of the 

changes in non-water quality factors and other environmental impacts attributed to each 

technology and operational measure considered in 122.21(r)(10), including but not 

limited to both increases and decreases of each factor. The study must include the 

following: 

(i) Estimates of changes to energy consumption, including but not limited to 

parasitic load and turbine backpressure energy penalties; 

(ii) Estimates of changes to thermal discharges, including an estimate of any

increased facility capacity, operations, and reliability that may be possible due to 

reducedrelaxed permitting constraints related to thermal discharges; 

(iii) Estimates of air pollutant emissions and of the human health and 

environmental impacts associated with such emissions; 

(iv) Estimates of changes in noise; 

(v) Discussion of impacts to safety, including documentation of the potential for 

plumes, icing, and availability of emergency cooling water; 
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(vi) Impacts to grid reliability for the facility and for each power generating unit, 

including an estimate of changes to facility capacity, operations, and reliability due to 

cooling water availability;

(vii) Facility reliability, including but not limited to facility availability, 

production of steam, and impacts to production based on process unit heating or cooling; 

(viii(viii) Significant changes in consumption of water, including a site-specific 

comparison of the evaporative losses of both once-through cooling and closed cycle 

recirculating systems, and documentation of impacts attributable to changes in water 

consumption;

(ix) A discussion of all reasonable attempts to mitigate each of these factors. 

(ixx) Peer review. Obtain peer review of the non-water quality and other 

environmental impacts study. You must select peer reviewers in consultation with the 

Director, including that the Director may require additional peer reviewers. The Director 

may consult with EPA and Federal, State and Tribal fish and wildlife management 

agencies with responsibility for fish and wildlife potentially affected by the cooling water 

intake structure(s) to determine which peer review comments must be addressed by the 

final study. You must provide an explanation for any significant reviewer comments not 

accepted. Peer reviewers must have appropriate qualifications in biology, engineering, 

hydrology, or other fields and their names and credentials must be included in the peer 

review report. 

3. Section 122.44(b)(3) is republished as follows: 
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§ 122.44 Establishing limitations, standards, and other permit conditions 

(applicable to State NPDES programs, see Sec. 123.25). 

* * * * * 

(b) * * * 

 (3) Requirements applicable to cooling water intake structures under section 

316(b) of the CWA, in accordance with part 125, subparts I, J and N, of this chapter. 

* * * * * 

PART 123 – STATE PROGRAM REQUIREMENTS 

1. The authority citation for part 123 continues to read as follows: 

Authority: Clean Water Act, 33 U.S.C. 1251 et seq. 

2. Sections 123.25(a)(4) and 123.25(a)(36) are republished as follows: 

§ 123.25 Requirements for permitting. 

 (a) * * * 

 (4) § 122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)--(Application for a 

permit); 

* * * * * 

 (36) Subparts A, B, D, H, I, J and N of part 125 of this chapter; 

* * * * * 
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PART 124 – PROCEDURES FOR DECISIONMAKING 

1. The authority citation for part 124 continues to read as follows: 

Authority: Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

2. Section 124.10(d)(1)(ix) is republished as follows: 

§ 124.10 Public notice of permit actions and public comment period. 

* * * * * 

 (d) * * * 

 (1) * * * 

 (ix) Requirements applicable to cooling water intake structures under section 

316(b) of the CWA, in accordance with part 125, subparts I, J and N of this chapter. 

* * * * * 
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PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT 

DISCHARGE ELIMINATION SYSTEM

1. The authority citation for part 125 continues to read as follows: 

Authority: Clean Water Act, 33 U.S.C. 1251 et seq.; unless otherwise noted. 

2. Subpart I 

§ 125.84(c) is revised to say withdraw greater than two (2) million gallons per day 

(MGD). 

3. Revise § 125.84(d)(1) to read as follows: 

You must demonstrate to the Director that the technologies employed will reduce 

the level of adverse environmental impact from your cooling water intake structures to a 

comparable level to that which you would achieve were you to implement the 

requirements of paragraphs (b)(1) and (2) of this section. This demonstration must 

include a showing that the impacts to fish and shellfish, including important forage and 

predator species, within the watershed will be comparable to those which would result if 

you were to implement the requirements of paragraphs (b)(1) and (2) of this section. The 

Director may consider information provided by any fishery management agency(ies) 

along with data and information from other sources. 
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4. Amend § 125.86 as follows: 

a. Revise § 125.86(b)(3) to read as follows: 

Source waterbody flow information. You must submit to the Director the 

following information to demonstrate that your cooling water intake structure meets the 

flow requirements in §125.84(b)(3) or (c)(2). 

b. Remove and reserve § 125.86(c)(2)(iv)(C). 

c. Remove and reserve § 125.86(c)(2)(iv)(D)(2). 

* * * * * 

e. Revise § 125.86(b)(4)(iii) to read as follows: 

 The owner or operator of a new facility required to install design and construction 

technologies and/or operational measures must develop a plan explaining the 

technologies and measures selected that is based on information collected for the Source 

Water Biological Baseline Characterization required by 40 CFR 122.21(r)(4). (Examples 

of appropriate technologies include, but are not limited to, wedgewire screens, fine mesh 

screens, fish handling and return systems, barrier nets, aquatic filter barrier systems, etc. 

Examples of appropriate operational measures include, but are not limited to, seasonal 

shutdowns or reductions in flow, continuous operations of screens, etc.) The plan must 

contain the following information: 

* * * * * 
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5. Revise § 125.87 to read as follows: 

 (a) Biological monitoring. You must monitor both impingement and entrainment 

of the commercial, recreational, and forage base fish and shellfish species identified in 

either the Source Water Baseline Biological Characterization data required by 40 CFR 

122.21(r)(4) or the Comprehensive Demonstration Study required by §125.86(c)(2), 

depending on whether you chose to comply with Track I or Track II. The monitoring 

methods used must be consistent with those used for the Source Water Baseline 

Biological Characterization data required in 40 CFR 122.21(r)(4) or the Comprehensive 

Demonstration Study required by §125.86(c)(2). You must follow the monitoring 

frequencies identified below for at least two (2) years after the initial permit issuance. 

After that time, the Director may approve a request for less frequent sampling in the 

remaining years of the permit term and when the permit is reissued, if the Director 

determines the supporting data show that less frequent monitoring would still allow for 

the detection of any seasonal and daily variations in the species and numbers of 

individuals that are impinged or entrained. 

 (1) * * * 

 (2) Entrainment sampling. You must collect samples at least biweekly to monitor 

entrainment rates (simple enumeration) for each species over a 24-hour period during the 

primary period of reproduction, larval recruitment, and peak abundance identified during 

the Source Water Baseline Biological Characterization required by 40 CFR 122.21(r)(4) 
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or the Comprehensive Demonstration Study required in § 125.86(c)(2). You must collect 

samples only when the cooling water intake structure is in operation. 

6. Revise § 125.89 to read as follows: 

§ 125.89 As the Director, what must I do to comply with the requirements of this 

subpart? 

* * * * * 

(b) * * * 

(1) * * * 

(ii) For a facility that chooses Track II, you must review the information 

submitted with the Comprehensive Demonstration Study required in § 125.86(c)(2), 

evaluate the suitability of the proposed design and construction technologies and 

operational measures to determine whether they will reduce both impingement mortality 

and entrainment of all life stages of fish and shellfish to 90 percent or greater of the 

reduction that could be achieved through Track I. In addition, you must review the 

Verification Monitoring Plan in § 125.86(c)(2)(iv)(D) and require that the proposed 

monitoring begin at the start of operations of the cooling water intake structure and 

continue for a sufficient period of time to demonstrate that the technologies and 

operational measures meet the requirements in § 125.84(d)(1). Under subsequent permits, 

the Director must review the performance of the additional and /or different technologies 

or measures used and determine that they reduce the level of adverse environmental 
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impact from the cooling water intake structures to a comparable level that the facility 

would achieve were it to implement the requirements of § 125.84(b)(1) and (2). 

(2) * * * 

(3) * * * 

 
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7. Subpart J to part 125 is revised to read as follows: 

Subpart J–Requirements Applicable to Cooling Water Intake Structures for 

Existing Facilities Under Section 316(b) of the Clean Water Act 

Sec. 

125.90 Purpose of this subpart 

125.91 Applicability 

125.92 Special definitions 

125.93 Compliance 

125.94 Requirements reflecting best technology available for minimizing adverse 

environmental impact 

125.95 Permit application and supporting information requirements 

125.96 Monitoring requirements 

125.97 Record keeping and other reporting requirements 

125.98 Director 

Subpart J–Requirements Applicable to Cooling Water Intake Structures for 

Existing Facilities Under Section 316(b) of the Clean Water Act

§ 125.90 Purpose of this subpart 

 (a) This subpart establishes the section 316(b) requirements that apply to cooling 

water intake structures at existing facilities that are subject to this subpart. These 

requirements include a number of components. These include standards for minimizing 

adverse environmental impact associated with the use of cooling water intake structures 

and required procedures (e.g., permit application requirements, information submission 

requirements) for establishing the appropriate technology requirements at certain 
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specified facilities as well as required monitoring, reporting, and recordkeeping 

requirements to demonstrate compliance. In combination, these components represent 

the best technology available for minimizing adverse environmental impact associated 

with the use of cooling water intake structures. These requirements are to be established 

and implemented in National Pollutant Discharge Elimination System (NPDES) permits 

issued under authority of sections 301, 308, and 402 of the Clean Water Act (CWA). 

 (b) Cooling water intake structures not subject to requirements under this or 

another subpart of this part must meet requirements under section 316(b) of the CWA 

established by the Director on a case-by-case, best professional judgment (BPJ) basis. 

 (c) Nothing in this subpart shall be construed to preclude or deny the right of any 

State or political subdivision of a State or any interstate agency under section 510 of the 

CWA to adopt or enforce any requirement with respect to control or abatement of 

pollution that is more stringent than those required by Federal law. 

§ 125.91 Applicability

 (a) An existing facility, as defined in § 125.92, is subject to this subpart if it meets 

each of the following criteria: 

(1) It is a point source; 

(2) It uses or proposes to use cooling water intake structures with a total design 

intake flow (DIF) of greater than 2 million gallons per day (MGD) to withdraw water 

from waters of the United States; and 

(3) Twenty-five percent or more of the water it withdraws is used exclusively for 

cooling purposes, measured on an average annual basis for each calendar year. 
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 (b) 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 independent supplier withdraws water from waters of the United States but is 

not itself a new or existing facility as defined in subparts I or J, except as provided in 

paragraph (d) of this section. An owner or operator of an existing facility may not 

circumvent these requirements by creating arrangements to receive cooling water from an 

entity that is not itself a facility subject to subparts I or J. 

 (c) Notwithstanding paragraph (b) of this section, obtaining cooling water from a 

public water system, using reclaimed water from wastewater treatment facilities or 

desalination plants, or recycling treated effluent as cooling water does not constitute use 

of a cooling water intake structure for purposes of this subpart. 

 (d) This subpart does not apply to seafood processing facilities, offshore liquefied 

natural gas terminals, and offshore oil and gas extraction facilities that are existing 

facilities as defined in § 125.92. The owners and operators of such facilities must meet 

requirements established by the Director on a case-by-case, best professional judgment 

(BPJ) basis. 

§ 125.92 Special definitions 

 In addition to the definitions provided in § 122.2 of this chapter, the following 

special definitions apply to this subpart: 

(a) Actual Intake Flow (AIF) means the average volume of water withdrawn on an 

annual basis by the cooling water intake structures over the past three calendar years. 
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 (b) All life stages means eggs, larvae, juveniles, and adults. All life stages of fish 

and shellfish does not include members of the infraclass Cirripedia in the subphylum 

Crustacea (barnacles), green mussels (Perna viridis), or zebra mussels (Dreissena 

polymorpha). The Director may determine that all life stages of fish and shellfish does 

not include specified invasive species and naturally moribund species. 

 (c) Closed-cycle recirculating system means a system designed, using minimized 

make-up and blowdown flows, to withdraw water from a natural or other water source to 

support contact or noncontact cooling uses within a facility, or a system designed to 

include cooling ponds that are not themselves a waters of the U.S. and that does not rely 

upon continuous intake flows of water. New source water (make-up water) is added to 

the system to replenish losses that have occurred due to blowdown, drift, and 

evaporation. Closed-cycle recirculating system includes, but is not limited to, wet or dry 

cooling towers. For cooling towers where the source for make-up water is freshwater or 

has a salinity equal to or less than 0.5 parts per thousand, minimized make-up and blow 

down means operating at a minimum cycles of concentration of 1.53.0. For cooling 

towers where the source for make-up water is saltwater, brackish water, or has a salinity 

of greater than 0.5 parts per thousand, minimized make-up and blow down means 

operating at a minimum cycles of concentration of 3.0 where the source make-up water 

has1.5. For facilities with a salinityclosed-cycle recirculating system other than a cooling 

tower, minimized make-up and blowdown flows means a reduction in actual intake flow

of equal to or less than 0.5 parts per thousand.97.5 percent for freshwater, and 94.9 

percent for salt water or brackish water. 

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(d) Contact cooling water means water used for cooling which comes into direct 

contact with any raw material, product, or byproduct. Examples of contact cooling water 

may include but are not limited to quench water at iron and steel plants, cooling water in 

a cracking unit, and cooling water directly added to food and agricultural products 

processing. 

(e) Cooling pond means a man-made canal, channel, lake, pond or other 

impoundment designed and constructed to provide cooling for a nearby electric 

generating or manufacturing unit. A cooling pond may comprise a closed-cycle 

recirculating system when waters of the U.S. are withdrawn only for the purpose of 

replenishing losses of cooling water due to blowdown, drift, and evaporation.

 (f) Cooling water means water used for contact or noncontact cooling, including 

water used for equipment cooling, evaporative cooling tower makeup, and dilution of 

effluent heat content. The intended use of the cooling water is to absorb waste heat 

rejected from the process or processes used, or from auxiliary operations on the facility's 

premises. Cooling water obtained from a public water system, reclaimed water from 

wastewater treatment facilities or desalination plants, treated effluent from a 

manufacturing facility, or cooling water that is used in a manufacturing process either 

before or after it is used for cooling as process water, is not considered cooling water for 

the purposes of calculating the percentage of a facility's intake flow that is used for 

cooling purposes in § 125.91(a)(3). 

 (g) Cooling water intake structure means 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 
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is withdrawn from the surface water source up to, and including, but not limited to, the 

intake pumps. 

 (h) Design intake flow (DIF) means the value assigned during the cooling water 

intake structure design to the maximum volume of water the cooling water intake system 

is capable of withdrawing from a source waterbody over a specific time period. The 

facility’s DIF may be adjusted to reflect permanent changes to the maximum capabilities 

of the cooling water intake system to withdraw cooling water, including but not limited to 

pumps permanently removed from service, flow limit devices, and physical limitations of 

the piping. DIF does not include values associated with emergency and fire suppression 

capacity or redundant pumps (i.e., back-up pumps). 

 (i) Entrainment means the incorporation of any life stages of fish and shellfish 

with the intake water flow entering and passing through a cooling water intake structure 

and into a cooling water system. Entrainable organisms includes any organisms 

potentially subject to entrainment. For purposes of this subpart, entrainment includes 

those organisms that pass through a 3/8 inch sieve, and excludes those organisms 

collected or retained on a 3/8 inch sieve. 

 (j) Entrainment mortality means death as a result of entrainment through the 

cooling water intake structure, or death as a result of exclusion from the cooling water 

intake structure by fine mesh screens or other protective devices intended to prevent the 

passage of entrainable organisms through the cooling water intake structure. 

(k) Entrapment means the condition where impingeable fish and shellfish lack the 

means to escape the cooling water intake system. Entrapment includes but is not limited 

to: organisms caught in the bucket of a traveling screen and unable to reach a fish return; 
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organisms caught in the forebay of a cooling water intake system without any means of 

being returned to the source waterbody without experiencing mortality; or cooling water 

intake systems where the velocities in the intake pipes or in any channels leading to the 

forebay prevent organisms from being able to return to the source waterbody through the 

intake pipe or channel. 

 (l) Existing facility means any facility that commenced construction as described 

in 40 CFR 122.29(b)(4) on or before January 17, 2002; and any modification of, or any 

addition of a unit at such a facility that is not a new facility at § 125.83. 

(m) Flow reduction means any modification that serves to reduce the volume of 

cooling water withdrawn. Examples include, but are not limited to, variable speed 

pumps, seasonal flow reductions, wet cooling towers, dry cooling towers, hybrid cooling 

towers, and unit closures. 

(n) Impingement means the entrapment of any life stages of fish and shellfish on 

the outer part of an intake structure or against a screening device during periods of intake 

water withdrawal. Impingement includes those organisms collected or retained on a 3/8 

inch sieve, and excludes those organisms that pass through a 3/8 inch sieve. 

(o) Impingement mortality means death as a result of impingement. 

(p) Independent supplier means an entity, other than the regulated facility, that 

owns and operates its own cooling water intake structure and directly withdraws water 

from waters of the United States. The supplier provides the cooling water to other 

facilities for their use, but may also use a portion of the water itself. An entity that 

provides potable water to residential populations (e.g., public water system) is not a 

supplier for purposes of this subpart. 
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(q) Moribund means dying; close to death. 

 (r) New unit means any addition of an operating unit at an existing facility where 

the construction begins after [insert effective date of this rule], including but not limited 

to a new unit added to a new or existing facility for the same general industrial operation, 

but that does not otherwise meet the definition of a new facility at § 125.83. New unit

includes any additional, rebuilt, repowered, or replaced unit where that unit is not subject 

to the requirements of Subpart I. For purposes of this definition, rebuilt subpart, new unit 

refers to major modifications affecting operation of the cooling water intake structure 

such as replacement of the turbine, boiler, or condensers. New unit newly built units 

added to increase capacity at the facility and does not include modifications necessary as 

a result of emergency repairs.any rebuilt, repowered or replacement unit, including any 

units where the generation capacity of the new unit is equal to or greater than the unit it 

replaces. 

(s) Operational measure means a modification to any operation that serves to 

minimize impact to all life stages of fish and shellfish from the cooling water intake 

structure. Examples of operational measures include, but are not limited to, more 

frequent rotation of traveling screens, use of a low pressure wash to remove fish prior to 

any high pressure spray to remove debris on the ascending side of a traveling screen, 

maintaining adequate volume of water in a fish return, and debris minimization measures 

such as air sparging of intake screens and/or other measures taken to maintain the design 

intake velocity. 

(t) Repowering means rebuilding and replacing major components of a power 

plant instead of building a new one. 
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§ 125.93 Compliance 

(a) The owner or operator of a facility subject to this subpart must comply with 

the applicable BTA standards for impingement mortality in § 125.94(b) as soon as 

possible based on the schedule of requirements set by the Director, but in no event later 

than [insert date 8 years after the effective date of this rule]. 

(b) The owner or operator of a facility subject to this subpart must comply with 

the applicable BTA standards for entrainment mortality in § 125.94(c) as soon as 

possible, based on the schedule of requirements set by the Director.

(c) The owner or operator of an existing facility subject to this subpart that 

commences construction of a new unit after [insert effective date of this rule] must 

comply with the BTA standards with respect to the new unit in § 125.94(b) and § 125.94 

(d) upon commencement of the new unit’s operation. With respect to the existing units at 

the existing facility, the owner or operator must comply with (a) and (b) of this section. 

§ 125.94 As an owner or operator of an existing facility, what must I do to comply 

with this subpart? 

 (a) Applicable BTA Standards. 

(1) The owner or operator of an existing facility with a design intake flow (DIF) 

greater than 2 MGD is subject to the impingement mortality standard under subparagraph 

(b) below. 

(2) The owner or operator of an existing facility with a design intake flow (DIF) 

greater than 2 MGD is subject to the BTA standards for entrainment mortality under 
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subparagraph (c) below. The owner or operator may choose instead to comply with the 

entrainment mortality standard at subparagraph (d) below.

(3) New units at an existing facility that are not a new facility under § 125.83 and 

that have a design intake flow (DIF) greater than 2 MGD are subject to the BTA 

standards for impingement mortality at subparagraph (b) below and the entrainment 

mortality standards at subparagraph (d) below. 

 (b) BTA Standards for Impingement Mortality. By the dates specified in § 

125.93, the owner or operator of an existing facility subject to this subpart must achieve 

the impingement mortality standards provided in subparagraphs (1), or (2), below: 

(1) The owner or operator of an existing facility must: 

(i) Achieve the following impingement mortality limitations for all life stages of 

fish that are collected or retained in a 3/8 inch sieve and held for a period of 24 to 48 

hours to assess latent mortality:

 Impingement Mortality Not to Exceed 

Regulated parameter MonthlyAnnual Average AnnualMonthly Average 

Fish Impingement Mortality 3112% 1231% 

 

The annual average comprises the average for all measurements taken during the 

preceding 12-month period. The compliance period for the annual average will be 

established by the Director.

(ii) The owner or operator of a facility that withdraws water from an ocean or 

tidal waters must also reduce impingement mortality of shellfish at a minimum to a level 

comparable to that achieved by properly deployed and maintained barrier nets. Passive 
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screens such as cylindrical wedgewire screens, and through-flow or carry-over free intake 

screens such as dual-flow screens and drum screens, will meet this requirement. 

(iii) The owner or operator of a facility that employs traveling screens or 

equivalent active screens must: 

(A) Count any fish that are included in carryover from a screen or 

removed from a screen as part of debris removal as fish impingement mortality. 

(B) Incorporate protective measures including but not limited to: modified 

traveling screens with collection buckets designed to minimize turbulence to 

aquatic life, addition of a guard rail or barrier to prevent loss of fish from the 

collection bucket, replacement of screen panel materials with smooth woven 

mesh, a low pressure wash to remove fish prior to any high pressure spray to 

remove debris on the ascending side of the screens, and a fish handling and return 

system with sufficient water flow to return the fish to the source water in a 

manner that does not promote predation or re-impingement of the fish. 

(iv) The owner or operator of the facility must ensure that there is a means for 

impingeable fish or shellfish to escape the cooling water intake system or be returned to 

the waterbody through a fish return system. Passive screens such as cylindrical 

wedgewire screens, and through-flow or carry-over free intake screens such as dual-flow 

screens and drum screens, will meet this requirement; 
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(2) The owner or operator of an existing facility must demonstrate to the Director 

that its cooling water intake system has a maximum intake velocity of 0.5 feet per 

second. In addition, you must meet the following criteria: 

(i) The maximum velocity must be demonstrated as either the maximum actual 

intake velocity or the maximum design intake velocity as water passes through the 

structural components of a screen measured perpendicular to the screen mesh; 

(ii) The maximum velocity limit must be achieved under all conditions, including 

during minimum ambient source water surface elevations (based on BPJ using 

hydrological data) and during periods of maximum head loss across the screens or other 

devices during normal operation of the intake structure. If the intake does not have a 

screen, the maximum intake velocity perpendicular to the opening of the intake must not 

exceed 0.5 feet per second during minimum ambient source water surface elevations. 

(iii) Each intake must be operated and maintained to keep any debris blocking the 

intake at no more than 15 percent of the opening of the intake;. A demonstration that the 

actual intake velocity is less than 0.5 feet per second through velocity measurements will 

meet this requirement; 

(iv) The owner or operator of a facility that withdraws water from the ocean or 

tidal waters must also reduce impingement mortality of shellfish at a minimum to a level 

comparable to that achieved by properly deployed and maintained barrier nets. Passive 

screens such as cylindrical wedgewire screens, and through-flow or carry-over free intake 

screens such as dual-flow screens and drum screens, will meet this requirement. 

 (v) The owner or operator of a facility that employs traveling screens or 

equivalent active screens must: 
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(A) Count any fish that are included in carryover from a screen or 

removed from a screen as part of debris removal as fish impingement mortality. 

(B) Incorporate protective measures including but not limited to: modified 

traveling screens with collection buckets designed to minimize turbulence to 

aquatic life, addition of a guard rail or barrier to prevent loss of fish from the 

collection bucket, replacement of screen panel materials with smooth woven 

mesh, a low pressure wash to remove fish prior to any high pressure spray to 

remove debris on the ascending side of the screens, and a fish handling and return 

system with sufficient water flow to return the fish to the source water in a 

manner that does not promote predation or re-impingement of the fish. 

(vi) The owner or operator of the facility must ensure that there is a means for 

impingeable fish or shellfish to escape the cooling water intake system or be returned to 

the waterbody through a fish return system. Passive screens such as cylindrical 

wedgewire screens, and through-flow or carry-over free intake screens such as dual-flow 

screens and drum screens, will meet this requirement; 

(c) BTA Standards for Entrainment Mortality for Existing Facilities. Closedcycle cooling is the best performing technology for reducing entrainment mortality, but it 

may or may not be the BTA for individual facilities in light of site-specific 

considerations. Therefore the The Director must establish BTA standards for entrainment 

mortality on a case-by-case basis. These standards must reflect the Director’s 

determination of the maximum reduction in entrainment mortality warranted after 

consideration of all factors relevant for determining the best technology available at each 

facility, including the factors specified in §125.98. 
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(d) BTA Standards for Entrainment Mortality for New Units at Existing Facilities. 

The owner or operator of a new unit at an existing facility must achieve the entrainment 

standards provided in either § 125.94(d)(1) or § 125.94(d)(2). 

(1) The owner or operator of a facility must reduce actual intake flow (AIF) at a 

new unit, at a minimum, to a level commensurate with that which can be attained by the 

use of a closed-cycle recirculating system for the same level of cooling. The owner or 

operator of a facility with a cooling water intake structure that supplies cooling water 

exclusively for operation of a wet or dry cooling tower(s) and that meets the definition of 

closed cycle recirculating system at 125.92(c) meets this entrainment mortality standard. 

(2) The owner or operator of a facility must demonstrate to the Director that it has 

installed, and will operate and maintain, technologies for each intake at the new unit that 

reduce entrainment mortality of all stages of fish and shellfish that pass through a 3/8 

inch sieve. The owner or operator of a facility must demonstrate entrainment mortality 

reductions equivalent to 90 percent or greater of the reduction that could be achieved 

through compliance with § 125.94(d)(1). 

(3) This standard does not apply to: 

(i) Process water, gray water, waste water, reclaimed water, or other waters reused 

as cooling water in lieu of water obtained by marine, estuarine, or freshwater intakes; 

(ii) Cooling water used by manufacturing facilities for contact cooling purposes;

(iii) Portions of those water withdrawals for auxiliary plant cooling uses totaling 

less than two MGD; 

(iv) Any volume of cooling water withdrawals used exclusively for make-up 

water at existing closed-cycle recirculating systems. For facilities with a combination of 
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closed-cycle recirculating systems and other cooling water systems the entrainment 

mortality standard does not apply to that portion of cooling water withdrawn as make-up 

water for the closed-cycle recirculating system; 

(v) Any quantity of emergency back-up water flows. 

(4) The Director may establish alternative requirements if the:

(i) The data specific to the facility indicate that compliance with the requirements 

of § 125.94(d)(1) or § 125.94(d)(2) for the new unit would result in compliance costs 

wholly out of proportion to the costs EPA considered in establishing the requirements at 

issue or would result in significant adverse impacts on local air quality., significant 

adverse impacts on local water resources other than impingement or entrainment, or 

significant adverse impacts on local energy markets;

(ii) The alternative requirements must achieve a level of performance as close as 

practicable to the requirements of § 125.94(d)(1) or § 125.94(d)(2).);

(iii) The alternative requirements will ensure compliance with other applicable 

provisions of the Clean Water Act and any applicable requirement of state law;

(iv) The burden is on the owner or operator of the facility requesting the 

alternative requirement to demonstrate that alternative requirements should be authorized 

for the new unit.

(5) For cooling water flows specified in § 125.94 (d) that are not subject to this 

standard, the Director may establish additional BTA standards for entrainment mortality 

on a case by case basis. 

 (e) Nuclear facilities. If the owner or operator of a nuclear facility demonstrates 

to the Director, upon the Director’s consultation with the Nuclear Regulatory 
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Commission, that compliance with this subpart would result in a conflict with a safety 

requirement established by the Commission, the Director must make a site-specific 

determination of the BTA standardsbest technology available for entrainment 

mortalityminimizing adverse environmental impact that would not result in a conflict 

with the Commission's safety requirement. Technical infeasibility, and not cost, is the 

only consideration in evaluation of a potential conflict with Commission safety 

requirements. 

 (f) More stringent standards. The Director mustmay establish more stringent 

BTA standards than otherwise required by subsection (c) above in certain circumstances, 

including butrequirements as best technology available for minimizing adverse 

environmental impact if the Director determines that your compliance with the applicable 

requirements of this section would not limited to: 

(1) Requirementsmeet the requirements of applicable State orand Tribal law, 

including compliance with applicable state cooling water policies and water quality 

standards including designated uses, criteria, and anti-degradation requirements. 

(2) Requirements of or other applicable Federal law pertaining to threatened, endangered 

or protected species.. 

When establishing more stringent standards, the Director is not required to 

consider the studies submitted under § 122.21(b)(9), (10), (11), and (12).

(g) The owner or operator of a facility subject to this subpart must: 

(1) Submit and retain permit application and supporting information as specified 

in § 125.95; 

(2) Conduct compliance monitoring as specified in § 125.96; and 

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(3) Report information and data and keep records as specified in § 125.97. 

§ 125.95 Permit Application and Supporting Information Requirements 

 

(a) The Director may waive some or all of the information requirements of 

§§122.21(r)(8), (9), (10), (11), and (12) in the first permit application submitted after 

[insert effective date of the rule] if: 

(1) The Director has already made a BTA determination requiring operation 

commensurate with a closed-cycle recirculating system; 

(2) The owner or operator of the facility uses cooling water exclusively for 

operation of a wet or dry cooling tower(s)system that meets the definition of closed cycle 

recirculating system at 125.92(c); or 

(3) The Director determines substantially all of the information requirements 

specified at §§122.21(r)(8), (9), (10), (11), and (12) have already been submitted by the 

owner or operator. 

(b) Permit Application Submittal Timeframe. for Existing Facilities. The owner 

or operator of a facility subject to this subpart must submit to the Director the following 

according the schedule below: 

(1) For an existing facilitypower producers with a DIF of 50 MGD or above: 

(i) Information required in §§122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), (r)(7), and 

(r)(8) must be submitted to the Director no later than six months after [insert the 

effective date of the rule]. 
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(ii) Results of the Impingement Mortality Reduction Plan as required in 

§122.21(r)(6) must be submitted to the Director no later than 3 years and six months after 

[insert the effective date of the rule].

(2) For existing power producers with an AIF of greater than 125 MGD: 

(i) Information required in §122.21(r)(9)(i), including the Entrainment Mortality 

Data Collection Plan with peer reviewers identified must be submitted to the Director no 

later than six months after [insert the effective date of the rule].

(ii) Information required in §122.21(r)(9)(ii), including the peer reviewed 

Entrainment Mortality Data Collection Plan, must be submitted to the Director no later 

than 12 months after [insert the effective date of the rule].

(iii) Information required in §122.21(r)(9)(iii), including the completed 

Entrainment Characterization Study, must be submitted to the Director no later than 4 

years after [insert the effective date of the rule].

(iv) Information required in §122.21(r)(10), including the Comprehensive 

Technical Feasibility and Cost Evaluation Study, §122.21(r)(11), including the Benefits 

Valuation Study, and §122.21(r)(12), including the Non-water Quality and Other 

Environmental Impacts Study, must be submitted to the Director no later than 5 years 

after [insert the effective date of the rule].

(3) For the owner or operator of all other existing facilities subject to this subpart, 

with the exception of those facilities identified in §125.95(b)(i-ii): 

(i) Information required in §§122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), (r)(7), and 

(r)(8) must be submitted to the Director no later than three years after [insert the 

effective date of the rule]. 
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(ii) Results of the Impingement Mortality Reduction Plan as required in 

§122.21(r)(6) must be submitted to the Director no later than 6 years after [insert the 

effective date of the rule].

(4) For the owner or operator of all other existing facilities subject to this subpart 

with an actual intake flow (AIF) of greater than 125 MGD, with the exception of those 

facilities identified in §125.95(b)(i-ii2): 

(i) Information required in § 122.21(r)(9)(i), including the Entrainment Mortality 

Data Collection Plan, with peer reviewers identified, must be submitted to the Director no 

later than three years after [insert the effective date of the rule].

(ii) Information required in § 122.21(r)(9)(ii), including the peer reviewed 

Entrainment Mortality Data Collection Plan, must be submitted to the Director no later 

than three years and six months after [insert the effective date of the rule].

(iii) Information required in § 122.21(r)(9)(iii), including the completed 

Entrainment Characterization Study, must be submitted to the Director no later than 6 

years and six months after [insert the effective date of the rule].

(iv) Information required in §122.21(r)(10), including the Comprehensive 

Technical Feasibility and Cost Evaluation Study, § 122.21(r)(11), including the Benefits 

Valuation Study, and §122.21(r)(12), including the Non-water Quality and Other 

Environmental Impacts Study, must be submitted to the Director no later than 7 years and 

six months after [insert the effective date of the rule]. 

(c(c) Permit Application Submittal Timeframe for New Units. For the owner or operator 

of any new units at existing facilities subject to this subpart:

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(1) Information required in §§122.21(r)(2), (r)(3), r(4)and (r)(6) specific to the new unit 

must be submitted to the Director 6 months prior to the commencement of operation of 

the new unit.

(2) Application Requirements. To demonstrate compliance of the new unit with 

requirements in § 125.94(b) and (d), you must collect and submit to the Director the 

information in paragraphs (i), (ii), (iii) and (iv) of this section 6 months prior to the start 

of facility operations. 

(i) Impingement information. If you choose to comply with the impingement mortality 

requirements in § 125.94(b)(1), you must submit a plan to implement a monitoring 

program as specified in § 125.96(a) upon the start of the new unit operation. 

(ii) Velocity information. If you choose to comply with the impingement mortality 

requirements in § 125.94(b)(2), you must submit the following information 6 months 

prior to the start of facility operations:

(A) A narrative description of the design, structure, equipment, and operation used to 

meet the velocity requirement; and

(B) Design calculations showing that the velocity requirement will be met at minimum 

ambient source water surface elevations (based on best professional judgment using 

available hydrological data) and maximum head loss across the screens or other device.

(iii) Flow reduction information. If you choose to comply with the flow reduction 

requirements in § 125.94(d)(1), you must submit the following information to the 

Director to demonstrate that you have reduced your flow to a level commensurate with 

that which can be attained by a closed-cycle recirculating cooling water system: 
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(A) A narrative description of your system that has been designed to reduce your intake 

flow to a level commensurate with that which can be attained by a closed-cycle 

recirculating cooling water system and any engineering calculations, including 

documentation demonstrating that your make-up and blowdown flows have been 

minimized consistent with the definition of closed-cycle recirculating system at § 

125.92(c); and

(B) If the flow reduction requirement is met entirely, or in part, by reusing or recycling 

water withdrawn for cooling purposes in subsequent industrial processes, you must 

provide documentation that the reused or recycled water, along with other technologies 

you employ, including additional flow reductions, meets the flow reduction requirement 

of § 125.94(d)(1) or the entrainment mortality reduction requirement of § 125.94(d)(2).

(iv) Comprehensive Demonstration Study. If you choose to comply with the entrainment 

mortality requirements in § 125.94(d)(2), you must perform and submit the results of a

Comprehensive Demonstration Study (Study). This information is required to 

characterize the source water baseline in the vicinity of the cooling water intake 

structure(s), characterize operation of the cooling water intake(s), and to confirm that the 

technology(ies) proposed and/or implemented at your cooling water intake structure 

reduce the impacts to fish and shellfish to levels comparable to those you would achieve 

were you to implement the requirements in § 125.94(d)(1). To meet the “comparable 

level” requirement, you must demonstrate that:

(A) You have reduced entrainment mortality of all life stages of fish and shellfish to 90 

percent or greater of the reduction that would be achieved through § 125.94(d)(1); and 
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(B) You must develop and submit a plan to the Director containing a proposal for how 

information will be collected to support the study. The plan must include:

(1) A description of the proposed and/or implemented technology(ies) to be evaluated in 

the Study;

(2) A list and description of any historical studies characterizing the physical and 

biological conditions in the vicinity of the proposed or actual intakes and their relevancy 

to the proposed Study. If you propose to rely on existing source water body data, it must 

be no more than 5 years old, you must demonstrate that the existing data are sufficient to 

develop a scientifically valid estimate of potential entrainment impacts, and provide 

documentation showing that the data were collected using appropriate quality 

assurance/quality control procedures;

(3) Any public participation or consultation with Federal or State agencies undertaken in 

developing the plan; and

(4) A sampling plan for data that will be collected using actual field studies in the source 

water body. The sampling plan must document all methods and quality assurance 

procedures for sampling, and data analysis. The sampling and data analysis methods you 

propose must be appropriate for a quantitative survey and based on consideration of 

methods used in other studies performed in the source water body. The sampling plan 

must include a description of the study area (including the area of influence of the 

cooling water intake structure and at least 100 meters beyond); taxonomic identification 

of the sampled or evaluated biological assemblages (including all life stages of fish and 

shellfish); and sampling and data analysis methods.
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(C) You must submit documentation of the results of the Study to the Director. 

Documentation of the results of the Study must include:

(1) Source Water Biological Study. If your new unit will use a new cooling water intake 

structure, you must update your Source Water Biological Study to include:

(i) A taxonomic identification and characterization of aquatic biological resources 

including: a summary of historical and contemporary aquatic biological resources; 

determination and description of the target populations of concern (those species of fish 

and shellfish and all life stages that are most susceptible to impingement and 

entrainment); and a description of the abundance and temporal/spatial characterization of 

the target populations based on the collection of multiple years of data to capture the 

seasonal and daily activities (e.g., spawning, feeding and water column migration) of all 

life stages of fish and shellfish found in the vicinity of the cooling water intake structure; 

(ii) An identification of all threatened or endangered species that might be susceptible to 

entrainment by the proposed cooling water intake structure(s); and

(iii) A description of additional chemical, water quality, and other anthropogenic stresses 

on the source waterbody.

(2) Evaluation of potential cooling water intake structure effects. This evaluation will 

include:

(i) Calculations of the reduction in entrainment mortality of all life stages of fish and 

shellfish that would need to be achieved by the technologies you have selected to 

implement to meet requirements under § 125.94(d)(1). To do this, you must determine 

the reduction in entrainment mortality that would be achieved by implementing the 

requirements of § 125.94(d)(1) at your site.
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(ii) An engineering estimate of efficacy for the proposed and/or implemented 

technologies used to minimize entrainment mortality of all life stages of fish and 

shellfish. You must demonstrate that the technologies reduce entrainment mortality of all 

life stages of fish and shellfish to a comparable level to that which you would achieve 

were you to implement the requirements in § 125.94(d)(1). The efficacy projection must 

include a site-specific evaluation of technology(ies) suitability for reducing impingement 

mortality and entrainment based on the results of the Source Water Biological Study of 

this section. Efficacy estimates may be determined based on case studies that have been 

conducted in the vicinity of the cooling water intake structure and/or site-specific 

technology prototype studies.

(3) Verification monitoring plan. You must include in the Study the following: A plan to 

conduct, at a minimum, two years of monitoring to verify the full-scale performance of 

the proposed or implemented technologies, operational measures. The verification study 

must begin at the start of operations of the cooling water intake structure and continue for 

a sufficient period of time to demonstrate that the facility is reducing the level of 

entrainment to the level documented in paragraph (C)(2) of this section. The plan must 

describe the frequency of monitoring and the parameters to be monitored. The Director 

will use the verification monitoring to confirm that you are meeting the level of 

entrainment mortality reduction required in § 125.94(d), and that the operation of the 

technology has been optimized.

(d) After the initial submission of the §122.21(r) application studies, the owner or 

operator of a facility may, in subsequent permit applications, request to reduce the 
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information required, if conditions at the facility and in the waterbody remain 

substantially unchanged since the previous application so long as the relevant previously 

submitted information remains representative of current source water, intake structure, 

cooling water system, and operating conditions. The owner or operator of a facility must 

submit its request for reduced cooling water intake structure and waterbody application 

information to the Director at least one year prior to the expiration of its NPDES permit. 

The owner or operator’s request must identify each element in this subsection that it 

determines has not substantially changed since the previous permit application and the 

basis for the determination. The Director has the discretion to accept or reject any part of 

the request. The Director may also determine any or all of the information required under 

§§122.21(r)(6) through (12) may be reduced if facility employs a cooling water intake 

structure that supplies cooling water exclusively for operation of a wet or dry cooling 

tower(s) and that meets the definition of closed cycle recirculating system at 125.92(c).

(de) After issuance of the first permit pursuant to this subpart, the owner or 

operator of a facility must: 

(i1) commence information collection activities pursuant to this subsection no 

later than eighteen months prior to permit expiration; 

(ii2) submit all required §122.21(r) application studies, or the reduced permit 

application studies if approved by the Director under §125.95, to the Director no later 

than six months prior to permit expiration. 

(ef) The Director has the discretion to request or determine additional information 

to supplement the permit application process, including inspection of the facility. 
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(fg) Permit Application Records. The owner or operator of a facility must keep 

records of all submissions that are part of its permit application for a minimum of 5 years 

to document compliance with the requirements of this section. If the Director approves a 

request for reduced permit application studies under §125.95(cd), the owner or operator 

of a facility must keep records of all submissions that are part of the previous permit 

application for an additional 5 years. 

§ 125.96 Monitoring requirements 

 (a) Monitoring Requirements for Impingement Mortality. The owner or operator 

of an existing facility subject to § 125.94(b) must monitor as follows: 

(1) Permit compliance monitoring is required at each intake, or where appropriate 

other points of compliance as approved by the Director including but not limited to 

forebays, barrier nets, or fish handling and return systems, to demonstrate compliance 

with the impingement mortality limitations listed in § 125.94(b). 

(2) The frequency of monitoringYou must be no less than once per week during 

primary periods ofcollect samples to monitor impingement as determined by the 

Director,rates (simple enumeration) for each species over a 24-hour period and no less 

than biweekly during all other times.once per month when the cooling water intake 

structure is in operation. 

(3) If the Director has approved a compliance alternative provided under § 

125.94(b)(2),

the monitoring requirement in paragraph (a)(1) and (a)(2) of this section is 

waived. 

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(4) Compliance Monitoring for Intake Velocity. If your facility is subject to § 

125.94(b)(2) and you cannot document a design intake flow for the intake equal to or less 

than 0.5 feet per second under all conditions, including during minimum ambient source 

water surface elevations (based on BPJ using hydrological data) and maximum head loss 

across the screens, compliance monitoring is required to demonstrate the intake velocity 

is consistent with the requirements of § 125.94(b)(2). The frequency of monitoring must 

be no less than twice per week. 

(b) Monitoring Requirements for Entrainment Mortality at Existing Facilities. 

The Director will determine monitoring requirements (if applicable) on a case-by-case 

basis. 

(c) Monitoring Requirements for Entrainment Mortality for New Units. 

Compliance monitoring Monitoring is required to demonstrate flow reductions 

consistentcompliance with the requirements of § 125.94(d)(1) and (2). 

(1) If you are required to demonstrate flow reductions consistent with the 

requirements of § 125.94(d)(1), the frequency of monitoring must be no less than once 

per week and must be representative of normal operating conditions. Flow monitoring 

must include measuring cooling water withdrawals, make-up water, and blowdown 

volume. The Director may require additional monitoring necessary to demonstrate 

compliance with both § 125.94(d) as well as any more stringent standards under § 

125.94(f). 

(2) If you are required to demonstrate reductions consistent with the requirements 

of § 125.94(d)(2), you must monitor entrainable organisms that pass through a 3/8-inch 

sieve at a proximity to the intake that is representative of the entrainable organisms in the 
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absence of the intake structure. You must also monitor the latent entrainment mortality in 

front of the intake structure. Mortality after passing the cooling water intake structure 

must be counted as 100 percent mortality unless you have demonstrated to the approval 

of the Director that the mortality for each species of concern is less than 100 percent. 

Samples must be collected over a 24-hour period at a minimum frequency of biweekly to 

monitor each species of concern including those species as required by the Director. 

Samples must be collected no less than weekly during the primary period of reproduction, 

larval recruitment, and peak abundance identified during the source water baseline 

characterization required under § 122.21(r)(4). Samples must be representative of the 

cooling water intake when the structure is in operation. In addition, sufficient samples 

must be collected to allow for calculation of annual average entrainment levels of all life 

stages of fish and shellfish. Specific sampling protocols and frequency of sampling will 

be determined by the Director. The sampling must measure the total count of entrainable 

organisms or density of organisms, unless the Director approves of a different metric for 

such measurements. In addition, you must monitor the AIF for each intake. The AIF 

must be measured at the same time as the samples of entrainable organisms are collected. 

The Director may require additional monitoring necessary to demonstrate compliance 

with both § 125.94(d) as well as any more stringent standards under § 125.94(f). 

(dc) Visual or Remote Inspections. You must either conduct visual inspections or 

employ remote monitoring devices during the period the cooling water intake structure is 

in operation. You must conduct such inspections at least weekly to ensure that any 

technologies installed to comply with § 125.94 are maintained and operated to ensure that 
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they will continue to function as designed. The Director may establish alternative 

procedures for use during periods of inclement weather. 

 

§ 125.97 Other Permit Reporting and Recordkeeping Requirements 

The owner or operator of an existing facility subject to this subpart is required to 

submit to the Director the following information: 

(a) Monitoring Reports. You must include the applicable impingement mortality 

and entrainment mortality monitoring reports with both your Discharge Monitoring 

Reports (DMRs) (or equivalent State reports) and your permit annual report to the 

Director. 

(1) Impingement Mortality. YourIf you intend to comply with the Impingement 

Mortality requirements by biological measurements, your report must describe the 

compliance measurement location for each intake, the species of concern, the counts and 

percentage mortality of organisms sampled, the time period for evaluating latent 

mortality effects, and other information specified in the permit. If you intend to comply 

with the Impingement Mortality requirements by demonstrating an intake velocity of less 

than 0.5 feet per second, your report must describe the compliance measurement location 

for each intake, the method for velocity measurements, the intake velocity measurements 

and calculations, and other information specified in the permit.

(2) Impingement Mortality Compliance Monitoring. Your report must contain 

impingement mortality compliance monitoring data to document compliance with the 

requirements of § 125.94(b) for each intake. YouIf you intend to comply with the 

Impingement Mortality requirements by biological measurements, you must also update 
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and submit your calculated annual average for each month covered by the report. The 

annual average comprises the average for all measurements taken during the preceding 

12-month period. 

(3) Entrainment Mortality at Existing Facilities. The Director will determine what 

(if any) other reporting requirements are necessary. 

(4) Entrainment Mortality for New Units at Existing Facilities. The owner or 

operator of a facility complying with § 125.94(d) must describe the compliance 

measurement location for the facility, the species of concern, the counts and percentage 

mortality of organisms sampled, and other information specified in the permit. 

(5) Entrainment Mortality Compliance Monitoring for New Units at Existing 

Facilities. The owner or operator of a facility must submit monthly reports containing 

compliance monitoring data to document flow reductions consistentcompliance with the 

requirements of § 125.94(d)(1) or § (d)(2). 

(i) For compliance with §125.94(d)(2), including but not limited to1), flow 

measurements of water withdrawn for make-up and blowdown. 

(ii) For compliance with §125.94(d)(2), measurements of entrainment mortality, 

and your monthly actual intake flow. You must also update and submit itsyour calculated 

annual average of entrainment mortality. The annual average comprises the average for 

all measurements taken during the preceding 12-month period. If your facility is subject 

to the requirements specified in § 125.94(d)(2) you must submit monthly reports 

containing compliance monitoring data to document the requirements of § 125.94(d)(2). 

(6) You must submit compliance monitoring as specified in the permit to meet 

more stringent requirements of § 125.94(f), as applicable. 
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 (b) Status Reports. If you have a schedule established under §125.93 you must 

submit a quarterly status report as to the progress of meeting the applicable standards. 

These reports may include updates on pilot study results, construction schedules, 

maintenance outages, or other appropriate topics. 

(c) Annual Certification Statement and Report. You must submit an annual 

certification statement signed by the responsible corporate officer as defined in 40 CFR 

403.12(l) or 40 CFR 122.22. This statement must include, at a minimum the following 

information: 

(1) An annual certification statement which indicates that each technology as 

approved by the Director is being maintained and operated as set forth in its permit, or a 

justification to allow modification of the practices listed in the facility’s most recent 

annual certification. 

(2) If your facility is subject to BTA standards for impingement mortality or 

entrainment mortality specified in § 124.94(b)(2) or (d)(2), you must include a statement 

in your annual certification that specifies the information submitted in your most recent 

annual certification is still valid and appropriate or a justification to allow modification of 

the practices listed in the most recent annual certification. 

(i) If you cannot document that you are operating a closed-cycle recirculating 

system, you must also submit data and information in the annual certification statement 

documenting compliance with the requirement in § 124.94(d)(1) that flow commensurate 

with a closed-cycle recirculating system is met. 

(ii) If your facility is subject to the Impingement Mortality Standard specified in 

§ 125.94(b)(2) and you cannot document a design intake velocity for the intake equal to 
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or less than 0.5 feet per second, you must also submit data and information in the annual 

certification documenting compliance with the intake velocity requirements. 

(3) If the information contained in the previous year’s annual certification is still 

applicable, you may simply state as such in a letter to the Director, and the letter, along 

with any applicable data submission requirements specified in this section shall constitute 

the annual certification. However, if you have substantially modified operation of any 

unit at your facility that impacts cooling water withdrawals or operation of your cooling 

water intake structures, you must submit revisions to the information required in the 

permit application. 

(d) Permit Reporting Records Retention. You must keep records of all 

submissions that are part of the permit reporting requirements of this section for a period 

of at least five (5) years from the date of permit issuance. 

(e) The Director has the discretion to require additional supplemental permit 

reporting when necessary to establish permit compliance and may provide for periodic 

inspection of the facility. 

§ 125.98 Director Requirements 

 (a) Permit Application. The Director must review the materials submitted on a 

timely basis by the applicant under §122.21(r) before each permit renewal or reissuance 

to determine compliance with all applicable requirements. The Director is encouraged to 

provide comments expeditiously so that the permit applicant may modify its information 

gathering activities and provide any necessary supplemental materials. 
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(b) Alternate schedule. When the Director establishes an alternate schedule under 

§ 125.93, the schedule must provide for compliance as expeditiously as possible. In no 

event may the schedule provide for compliance beyond the dates specified in § 125.93. 

In establishing the schedule, the Director is encouraged to consider the extent to which 

those technologies proposed to be implemented to meet the requirements of § 

125.9594(c) and/or (d) will be used, or may otherwise affect choice of technology(ies), to 

meet the requirements of § 125.9594(b). When establishing a schedule for electric power 

generating facilities, the Director should consider measures to maintain adequate energy 

reliability and necessary grid reserve capacity during any facility outage. These may 

include establishing a staggered schedule for multiple facilities serving the same 

localities. The Director may consult with local and regional electric power agencies 

when establishing a schedule for electric power generating facilities. The Director may 

determine that extenuating circumstances (e.g., lengthy scheduled outages, future 

production schedules) warrant establishing a different compliance date for any 

manufacturing facility. In no event may the schedule provide for compliance beyond the 

dates specified in § 125.93. 

 (c) Species of concern. The Director must review and approve the species of fish 

and shellfish identified as species of concern, including but not limited to: 

(1) Any species of concern identified using the source water baseline biological 

characterization data submitted under § 122.21(r)(4); 

(2) Any fish and shellfish identified for evaluation under § 125.94(d);;

(3) Data submitted as part of the site-specific impingement mortality reduction 

plan under § 125.95(b)(3122.21(r)(6); 
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(4) Data submitted as part of the site-specific entrainment mortality data 

collection plan under § 125.95(b)(4122.21(r)(9); 

(5) The Director may request additional information in determining the sitespecific species of concern and any additional fish and shellfish to be included in the 

impingement mortality reduction plan and, where applicable, the entrainment mortality 

data collection plan; 

(6) Data for other aquatic organisms under § 125.94(f).

(7(6) The Director may determine invasive species, naturally moribund species, 

and other specific species may be excluded from any monitoring, sampling, or study 

requirements of § 122.21 and § 125.94. 

(87) The Director may consider data submitted by other interested parties. 

 (d) Site-specific Impingement Mortality Reduction Plan. The Director must 

review and approve the site-specific Impingement Mortality Reduction Plan required 

under 122.21(r)(6). The plan must include, at a minimum, the duration and frequency of 

required monitoring, the monitoring location, the organisms to be monitored and, where 

appropriate, the method in which naturally moribund organisms would be identified and 

taken into account. 

(e) Site-specific entrainment mortality controls. Closed-cycle cooling is the best 

performing technology for reducing entrainment mortality, but it may or may not be the 

BTA for individual facilities in light of site-specific considerations. Therefore theThe

Director must establish case-by-case BTA standards for entrainment mortality for any 

facility subject to such requirements after reviewing the information submitted under 

§§122.21(r) and 125.95. These entrainment mortality controls must reflect the Director’s 
*** E. O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

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determination of the maximum reduction in entrainment mortality warranted after 

consideration of factors relevant for determining the best technology available at each 

facility. Prior to any permit renewal, the Director must review the performance of the 

entrainment mortality technologies used and determine that they continue to meet the 

BTA requirements of § 125.94(c). The Director must provide a written explanation of the 

proposed BTA determination in the fact sheet pursuant to §124.8 (or statement of basis 

pursuant to §124.7) for the proposed permit. The written explanation must describe why 

the Director has rejected particularany entrainment mortality control technologies or 

measures that are better performing than the selected technologies or measures, and must 

reflect consideration of all reasonable attempts to mitigate any adverse impacts of 

otherwise available better performing entrainment technologies. The Director may not 

reject an otherwise available technology as BTA standards for entrainment mortality 

unlessif the social costs of compliance expressed as social costs are wholly 

disproportionate to are not justified by the social benefits., or if there are adverse impacts 

that cannot be mitigated that the Director deems to be unacceptable. If all technologies 

considered have social costs not justified by the social benefit, or have unacceptable 

adverse impacts that cannot be mitigated, the Director may determine that no additional 

control requirements are necessary beyond what the facility is already doing. At a 

minimum, the proposed determination in the fact sheet or statement of basis must be 

based on consideration of the following factors: 

(1) Numbers and types of organisms entrained; 

(2) Consideration of entrainmentEntrainment impacts on the waterbody; 
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 (3) Quantified and qualitative social benefits and social costs of available 

entrainment technologies, including ecological benefits and benefits to any 

threatened or endangered species; 

 (4) Thermal discharge impacts; 

(5) Impacts on the reliability of energy delivery within the immediate area; 

(56) Impact of changes in particulate emissions or other pollutants associated with 

entrainment technologies; 

(67) Land availability inasmuch as it relates to the feasibility of entrainment 

technology; and 

(78) Remaining useful plant life; and

(9) Impacts on water consumption. 

(f) Ongoing permitting proceedings. Where ongoing permit proceedings have 

begun prior to [insert effective date of this rule] and the Director has determined that 

the information already submitted by the owner or operator of the facility is substantially 

the same as required under § 122.21 (r)(9), (10), (11) and (12), the Director may proceed 

with any site-specific determination of BTA standards for entrainment mortality without 

requiring the owner or operator of the facility to resubmit the information required in § 

122.21 (r)(9), (10), (11) and (12), and the Director may choose to address the factors 

specified in § 125.98(e). If the Director has received permit application information from 

the owner or operator of the facility, and the Director has determined that the information 

is substantially the same as required under § 122.21 (r)(9), (10), (11) and (12) but the 

Director has not yet made a BTA standards for entrainment mortality determination, the 
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Director must address the factors specified in § 125.98 (e). In all subsequently issued 

permits for that facility the Director must address the factors specified in § 125.98 (e). 

(g) Site-specific entrainment mortality data collection plan and studies. The 

Director must review and approve the site-specific entrainment mortality data collection 

plan for new units at existing facilities. The plan must include, at a minimum, the 

duration and frequency of monitoring, the monitoring location, the organisms to be 

monitored, and the method in which latent mortality would be identified. The Director 

may require the owner or operator of a facility to include additional peer reviewers for 

the entrainment mortality data collection plan, the comprehensive technical feasibility 

and cost evaluation study, the benefits valuation study, and the non-water quality and 

other environmental impacts assessment. 

(h) Annual Certification Statement. The Director must review and verify the 

Annual Certification Statement required under § 125.97(c). 

(i) Additional information. In implementing the Director’s responsibilities under 

this provision, the Director is authorized to request additional necessary information and 

to inspect the facility. 

 
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