Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28853

121), we want to assist small entities in

understanding this proposed rule so that

they can better evaluate its effects on

them and participate in the rulemaking.

If the proposed rule would affect your

small business, organization, or

governmental jurisdiction and you have

questions concerning its provisions or

options for compliance, please contact

LTJG Heath Hartley at (305) 535–8762

for assistance in understanding and

participating in this rulemaking.

Collection of Information

This proposed rule would call for no

new collection of information under the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501–3520).

Federalism

A rule has implications for federalism

under Executive Order 13132,

Federalism, if it has a substantial direct

effect on State and local governments

and would either preempt State law or

impose a substantial direct cost of

compliance on them. We have analyzed

this proposed rule under that Order and

have determined that it does not have

implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) requires

Federal agencies to assess the effects of

their discretionary regulatory actions. In

particular, the Act addresses actions

that may result in the expenditure by a

State, local, or tribal government, in the

aggregate, or by the private sector of

$100,000,000 or more in any one year.

Though this proposed rule would not

result in such an expenditure, we do

discuss the effects of this rule elsewhere

in this preamble.

Taking of Private Property

This proposed rule would not effect a

taking of private property or otherwise

have taking implications under

Executive Order 12630, Governmental

Actions and Interference with

Constitutionally Protected Property

Rights.

Civil Justice Reform

This proposed rule meets applicable

standards in sections 3(a) and 3(b)(2) of

Executive Order 12988, Civil Justice

Reform, to minimize litigation,

eliminate ambiguity, and reduce

burden.

Protection of Children

We have analyzed this proposed rule

under Executive Order 13045,

Protection of Children from

Environmental Health Risks and Safety

Risks. This rule is not an economically

significant rule and does not concern an

environmental risk to health or risk to

safety that may disproportionately affect

children.

Indian Tribal Governments

This proposed rule does not have

tribal implications under Executive

Order 13175, Consultation and

Coordination with Indian Tribal

Governments, because it does not have

a substantial direct effect on one or

more Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes.

Environment

We considered the environmental

impact of this proposed rule and

concluded that, under, Figure 2–1,

paragraph 34(g) of Commandant

Instruction M16475.1C, this rule is

categorically excluded from further

environmental documentation. A

‘‘Categorical Exclusion Determination’’

is available in the docket where

indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

For the reasons discussed in the

preamble, the Coast Guard proposes to

amend 33 CFR Part 165, as follows:

PART 165—REGULATED NAVIGATION

AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165

continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191,

33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49

CFR 1.46.

2. In § 165.726 a new paragraph (b)(9)

is added to read as follows:

§ 165.726 Regulated Navigation Areas;

Miami River, Miami, Florida.

* * * * *

(b) * * *

(9) All vessels greater than 200 gross

tons shall be operational and capable of

leaving the Miami River and Tamiami

Canal within 24 hours of notice during

hurricane season from June 1 until

November 30 annually.

* * * * *

Dated: May 7, 2001.

G.W. Sutton,

Captain, U.S. Coast Guard, Commander,

Seventh Coast Guard District, Acting.

[FR Doc. 01–13285 Filed 5–24–01; 8:45 am]

BILLING CODE 4910–15–U

ENVIRONMENTAL PROTECTION

AGENCY

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

[FRL–6981–1]

Notice of Data Availability; National

Pollutant Discharge Elimination

System—Regulations Addressing

Cooling Water Intake Structures for

New Facilities

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; Notice of data

availability.

SUMMARY: On August 10, 2000, EPA

proposed standards for cooling water

intake structures at new facilities to

implement section 316(b) of the Clean

Water Act (CWA) (65 FR 49060). This

notice presents a summary of the data

EPA has received or collected since

proposal, an assessment of the relevance

of the data to EPA’s analysis, some

modified technology options suggested

by commenters, and an alternative

approach suggested by a trade group

representing the utility industry. EPA

solicits public comments about any of

the information presented in this notice

and the record supporting this notice.

DATES: Comments on this notice of data

availability must be received or

postmarked on or before midnight June

25, 2001.

ADDRESSES: Mail public comments

regarding this notice of data availability

to: Cooling Water Intake Structure (New

Facilities) Proposed Rule Comment

Clerk—W–00–03, Water Docket, Mail

Code 4101, EPA, Ariel Rios Building,

1200 Pennsylvania Avenue, NW,

Washington, DC 20460. Deliver your

comments in person (including

overnight mail) to the Cooling Water

Intake Structure (New Facilities)

Proposed Rule Comment Clerk—W–00–

03, Water Docket, Room EB 57, 401 M

Street, SW, Washington, DC 20460. You

may also submit comments

electronically to ow-docket@epa.gov.

Please submit any references cited in

your comments. Please submit an

original and three copies of your written

comments and enclosures. For

additional information on how to

submit comments, see SUPPLEMENTARY

INFORMATION, How May I Submit

Comments?’’

FOR FURTHER INFORMATION CONTACT:

Deborah G. Nagle at (202) 260–2656.

The e-mail address for the above contact

is rule.316b@epa.gov.

SUPPLEMENTARY INFORMATION:

Contents

I. Purpose of this Notice

28854 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

II. Data Obtained Since the Proposal

A Regulatory Thresholds

B Industry Profile for Utility and

Nonutility Electricity Generators

C. Industry Profile for Manufacturers

D. New Data and Refinements to the New

Facility Framework Based on Waterbody

Type

E. Additional Data and Information

Concerning the Impingement and

Entrainment Approach and the

Population Approach and Biological

Assessment Approach to Defining

Adverse Environmental Impact

F. Additional Data Related to the Specific

Technology Limits in the Proposed

Regulations

G. Revision in Costing and Energy Impact

Estimates

H. Industry Approach

I. Purpose of This Notice

On August 10, 2000 (65 FR 49060),

EPA proposed standards for cooling

water intake structures at new facilities

to implement section 316(b) of the Clean

Water Act (CWA) (see #2–001 in the

Docket). EPA has received numerous

comments and data submissions

concerning the proposal and has

collected additional data. In this notice,

EPA is making these new data available

for comment and is assessing the

relevance of the data to EPA’s analysis.

Since the end of the comment period,

EPA also received an alternative

regulatory approach suggested by a

trade group representing the utility

industry which is discussed in this

notice and is included in the record for

the rule. EPA has initially reviewed this

approach and, in this notice, suggests

modifications to the approach that are

being considered for the final rule. EPA

solicits public comments regarding any

of the information presented in this

notice and the record supporting this

notice.

II. Data Obtained Since the Proposal

A. Regulatory Thresholds

EPA proposed that the term ‘‘cooling

water intake structure’’ means the total

physical structure and any associated

constructed waterways used to

withdraw water from waters of the U.S.,

provided that at least twenty-five (25)

percent of the water withdrawn is used

for cooling purposes (see proposed 40

CFR 125.83, 65 FR 49116). A number of

commenters asserted that EPA did not

provide a rational basis in its record for

proposing that use of 25% of intake flow

for cooling should determine whether

an intake structure is a ‘‘cooling water

intake structure.’’ In response to these

comments, EPA requests comment on

preliminary data the Agency recently

gathered from its detailed questionnaire

for existing facilities. These data

document the percentage of

manufacturing facilities that use the

following percentages of water

withdrawn from waters of the U.S. for

cooling purposes: more than 5% (87%

of the manufacturing facilities); more

than 10% (82% of manufacturing

facilities); more than 15% (77% of

manufacturing facilities); more than

20% (74% of manufacturing facilities);

more than 25% (68% of manufacturing

facilities); and more than 50% (49% of

manufacturing facilities). See

‘‘Percentages of In-scope Facilities

Using Various Proportions of Their

Intake Water for Cooling Purposes’ (#2–

002 in the Docket). EPA will continue

refining these data by, as necessary,

calling back certain facilities to clarify

any data quality concerns. The Agency

will use these data to estimate the effect

of alternative thresholds on the amount

of new cooling water subject to this

rulemaking. EPA will determine

whether to revise the definition of a

cooling water intake structure for the

final new facility regulation based on

this information, other information

noticed today on adverse environmental

impact (Section E below), waterbody

sensitivity (Section D below) and

proposed limitations on intake capacity

based on waterbody flow rates (Section

F below) and on information already in

the record.

To improve the definition in EPA’s

proposal (65 FR 49066–49067), EPA

requests comment on two alternatives:

• New facility intake structures not

subject to this rule because of the

amount of cooling water they use are

not considered cooling water intake

structures for regulatory purposes and

thus would not be subject to section

316(b) of the CWA; or

• New facility intake structures not

subject to this rule because of the

amount of cooling water they use may

be subject to requirements established

by permit authorities under CWA

section 316(b) on a case-by-case basis.

EPA’s proposed regulations would

apply to new facilities that have a

cooling water intake structure with a

design intake capacity of greater than or

equal to two (2) million gallons per day

(MGD) of source water. 65 FR 49067–

49068. Since proposal, EPA collected

preliminary data from its detailed

questionnaire for existing facilities.

These data document the percentage of

existing facilities constructed in the last

10 years that would be covered by

national regulation at the following

alternative regulatory flow thresholds: 2

MGD, 5 MGD, 10 MGD, 15 MGD, 20

MGD, 25 MGD, 30 MGD, 50 MGD and

100 MGD. The data analysis shows that

58% of the manufacturers, 70% of the

nonutilities and 100% of the utilities

built in the last 10 years would be

regulated if the threshold was 2 MGD as

proposed in the new facility rule. At the

2 MGD threshold 99.7% of the total flow

would be covered. At a threshold of 15

MGD, 32% of the manufacturers, 29% of

the nonutilities and 50% of the utilities

would be covered, as would 97.3% of

the total flow. The total flow covered

remains relatively high, because the

large flows from a small number of

utility facilities dominate the total flow.

At a threshold of 25 MGD, 18% of the

manufacturers, 17% of the nonutilities

and 50% of the utilities built in the last

10 years would be regulated, covering

94.9% of the total flow. By industry

category, 71.4% of the flows from

manufacturers, 74.3% of the flows from

nonutilities, and 99.5% of the flows

from utilities would be regulated. See

‘‘Percentages of In-scope Facilities

Meeting Various Design Intake Flow

Thresholds’’ (see #2–003 in the Docket).

The Agency also is considering State

of Maryland regulations for cooling

water intake structures (see COMAR

26.08.03, #2–004 in the Docket). These

regulations exclude cooling water intake

structures withdrawing less than 10

MGD if the volume of water is less than

20 percent of the design stream flow for

nontidal waters or less than 20 percent

of the annual average net flow past the

intake which is available for dilution for

tidal waters. EPA intends to consider

this new information, as well as the

information discussed and included in

the record at proposal and any other

relevant sources of information, to

establish a minimum flow threshold in

final regulations.

B. Industry Profile for Utility and

Nonutility Electricity Generators

EPA intends to consider basing its

estimate of new electricity-generating

facilities for the final rule, in part, on a

revised Department of Energy (DOE)

forecast for growth in demand for

electricity over the next twenty years.

(See Annual Energy Outlook 2001, DOE,

Energy Information Agency DOE/EIA

#6383 (2001), #2–005 in the Docket.) At

the time of proposal, DOE projected a

1.3% annual increase in growth in

demand for electricity over the next

twenty years. Now, due in part to a

revision in the methodology used by the

Department of Commerce to calculate

gross domestic product, DOE projects a

1.8% rate of increase in growth in

demand for electricity over the next

twenty years. DOE also projects that

new electricity generating capacity will

be needed sooner than previously

forecast. Of the new generating capacity

needed in the next 20 years, DOE

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28855

projects that 22 Gigawatts will be

supplied by coal-fired steam electric

generating facilities, and that 209

Gigawatts will be supplied by natural

gas-fired, combined-cycle facilities.

1. Profile for Combined-Cycle Electric

Generating Facilities

DOE does not gather information on

specific, planned new electricitygenerating facilities and does not

estimate the number of facilities that

utility and nonutility power producers

will build to meet increases in demand.

Thus, EPA is considering, as at

proposal, using the NEWGen database, a

proprietary database owned by

Resources Data International, Inc., to

estimate the average size of new

combined-cycle facilities. (See

Engineering and Economic Analyses for

the Proposed Section 316(b) New

Facility Rule, EPA–821–R–00–019 (#1–

5046–PR in the Docket) for more

information on the methodology EPA

used to project new facilities and their

compliance costs at proposal.) To

estimate the total number of new

combined-cycle facilities that will be

built over the next twenty years, EPA is

considering dividing DOE’s new

forecast of demand for new combinedcycle electricity generating capacity

over the next twenty years by the

average size of new, U.S. combinedcycle facilities in the February 2001

version of the NEWGen database. EPA

also may use the February 2001

NEWGen database to estimate the

percentage of new combined-cycle

facilities that have characteristics that

would make them subject to a section

316(b) rule for new facilities (e.g., do

they plan to withdraw cooling water

from waters of the U.S. in amounts

greater than the regulatory threshold).

For costing purposes, EPA is

considering using the methodology used

at proposal (described Chapters 5 and 6

and Appendices A and B of Economic

and Engineering Analyses of the

Proposed Section 316(b) New Facility

Rule, EPA–821–R–00–019, August 2000)

using the February 2001 NEWGen

database to estimate the baseline of

cooling water intake structure

technologies that would be in place at

new combined-cycle facilities without

final regulations.

Following proposal, EPA received

comment from the Utility Water Act

Group (UWAG), an association of

individual electric utilities and three

national trade associations of electric

utilities (see W–00–03, 316(b)

Comments 1.68). UWAG objected to the

Agency’s use of the NEWGen database

to project the number of combined-cycle

facilities that would be subject to the

regulations and the baseline of intake

structure technologies without making

this proprietary database available to the

public. On September 25, 2000, EPA

added information to the rulemaking

record (see #1–6001–AD, Identification

of NEWGen Facilities for the Economic

Analysis for the proposed section 316(b)

New Facility Rule) so that the public

could determine which facilities the

Agency considered in developing its

profile of new combined-cycle facilities

and comment on additional facilities

that the Agency should have

considered. EPA is now reviewing

information provided by the Edison

Electric Institute (EEI) (see W–00–03,

316(b), Comments 1.69) regarding

additional combined-cycle facilities that

EEI asserts would be subject to the

proposed regulations.

At proposal, the NEWGen database

contained information about 94

combined-cycle facilities. EPA is now

investigating the 323 combined-cycle

facilities documented in the February

2001 NEWGen database. Because the

Agency received this information very

recently, EPA has not completed its

analysis of these combined-cycle

facilities. Therefore, EPA cannot

provide additional information at this

time on:

• The total number of combined-cycle

facilities the Agency projects may bear

costs to comply with final new facility

regulations

• The average size of new combinedcycle facilities

• The intake structure technologies

likely to be in place at these facilities

absent final regulations.

However, these data appear to indicate

that, based on changes in the NEWGen

database and DOE’s new forecast for

electricity from new combined-cycle

facilities, more facilities than estimated

at proposal would need to bear costs to

comply with final regulations similar to

the proposal. EPA has provided

summary information on the 323

combined-cycle facilities in the

February 2001 NEWGen database, so

that the interested public can determine

which facilities the Agency is

considering as it develops a profile of

new combined-cycle facilities for final

regulations (see #2–006 in the Docket).

As at proposal, EPA solicits public

comment on any additional facilities

that the public believes will be subject

to this rule. Specifically, the Agency

requests that members of the public

provide the Agency with detailed

information on specific, new combinedcycle facilities that may be built after

the end of calendar year 2001, and may

be required to comply with final new

facility regulations. EPA seeks

information on facility size (Megawatt

output), facility cost, source of cooling

water, ownership, location, and any

plans for where the cooling water intake

structure will be located within the

source water body, what the capacity of

the cooling water intake structure will

be, and what technologies would be

used to reduce impingement and

entrainment independent of final

regulations.

As a supplement to the approach

described above, EPA intends to

consider publicly-available information

from the 1998 Annual Electric Generator

Reports that utility and nonutility

power generators submit to DOE (see

data from Forms EIA–860A and EIA–

860B, Annual Electric Generator Report1998, Energy Information

Administration (EIA), U.S. Department

of Energy, #2–007 in the Docket), as

well as data from the section 316(b)

Questionnaire EPA sent to existing

facilities. Specifically, EPA is evaluating

data from the EIA–860 databases for

each utility and nonutility power plant

that EPA surveyed to estimate the

average size of new combined-cycle

facilities. To estimate average plant size,

EPA also is evaluating EIA’s

Assumptions to the Annual Energy

Outlook 2001, DOE/EIA #0554(2001)

(see #2–008 in the Docket), which lists

the average size of future combinedcycle and coal units as 400 MW and

states that most plants are likely to have

more than one unit. EPA also is

evaluating the section 316(b) survey

responses to estimate the number of

new facilities likely to be subject to

regulation and the distribution of

cooling systems and intake structure

technologies likely to be in place at

these facilities in the absence of new

regulations. (See Newbert, Riley, and

Mike Fisher, Abt Associates. Memo on:

Analysis of Information Regarding

Average Plant Size, In-scope Rate, and

Distribution of Baseline Cooling System

Types to Lynne Tudor, et.al., USEPA.

April 24, 2001, #2–009 in the Docket.)

These survey data indicate that,

depending on whether one analyzes

only the detailed questionnaire data or

the detailed questionnaire in

combination with the screener

questionnaire data, between 44% and

59% of the coal plants constructed in

the last 20 years would be covered by

the proposed new facility regulations.

Of the combined cycle plants surveyed,

15% would be covered by the proposed

regulations. Of these facilities, 73% of

the coal-fired plants and 100% of the

combined-cycle plants built in the last

20 years have a recirculating cooling

28856 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

system and would meet the proposed

requirement to reduce intake capacity to

a level commensurate with use of a

closed-cycle recirculating cooling

system. For coal-fired facilities built in

the last 10 years, the percentage of

facilities that would be covered that

have closed-cycle recirculating cooling

systems increases to 88%. Looking at

utilities only, these data show that 54%

of the coal-fired plants and 15% of the

combined-cycle plants built in the last

20 years would be covered by the

proposed regulations. Of the 33 utilities

built in the last 20 years that would be

covered (if they were new facilities),

66% of the coal-fired plants and 100%

of the combined-cycle plants have a

closed-cycle recirculating cooling

system. Seventy-five percent of the

utility coal-fired plants built in the last

10 years that would be covered by the

proposed regulations have a closedcycle recirculating cooling system.

2. Profile for Coal-Fired Electric

Generating Facilities

At proposal, the NEWGen database

contained no information on new coalfired steam electric generating facilities.

For the years 2001–2010, DOE’s Annual

Energy Outlook 2000 projected limited

new coal-fired steam electric generating

capacity. Thus, EPA did not project any

new coal facilities for 2001–2010. For

the years 2011–2020, EPA used DOE’s

projected demand for new capacity from

coal-fired facilities and information

from the following sources to estimate

the number of new coal-fired power

plants that had characteristics that

would make them subject to the rule

and to estimate what cooling water

intake structure technology would be in

place at these plants absent final

regulation:

• Form EIA–767, Steam Electric Plant

Operation and Design Report, Energy

Information Administration, U.S.

Department of Energy, 1994, 1997. This

database contains data on air and water

quality from steam-electric power plants

with generating capacities of 100

megawatts (MW) or greater. A small

subset of the data is provided for steam

electric power plants with generating

capacity between 10 and 100 MW. An

electronic copy of this database can be

found in #2–010 in the Docket.

• Form EIA–860, Annual Electric

Generator Report, Energy Information

Administration, U.S. Department of

Energy, 1994, 1997. Since EIA–767

contains only detailed information on

utility facilities greater than 100 MW,

this database was used to provide

information on utility facilities less than

10 MW and to provide limited technical

data on facilities between 10 and 100

MW. An electronic copy of this database

can be found in #2–010 in the Docket.

• Power Statistics Database, Utility

Data Institute, McGraw-Hill Company,

1994. This data was combined with data

from DOE’s Stream Electric Plant

Operation and Design Report to provide

more specific details on cooling water

intake structure, cooling water system,

and water body characteristics.

For the final rule, EPA is considering

using a similar methodology to project

the average size of new coal-fired

facilities, the number that would be

subject to the rule, and the baseline of

intake structure technology that would

be in place absent final regulations, but

would supplement the DOE data

described above with data from the

section 316(b) survey of cooling water

use by existing facilities. To support

such an analysis, EPA is developing

profiles as shown in the table ‘‘Surveyed

Coal Plants, By Age of Oldest Unit and

In-Scope Status’’ in #2–009 in the

Docket. The Agency is also examining

17 coal-fired steam electric generating

facilities in the February 2001 NEWGen

database. EPA is actively seeking

information from vendors and other

sources of engineering information (see

#2–011A–B in the Docket).

2–011A Couch, Gordon. OECD Coal-Fired

Power Generation—Trends in the 1990s,

IEA Coal Research The Clean Coal Centre,

1997.

2–011B Lammers, Thomas F. Steam Plant

Operation, 7th Edition, McGraw-Hill, New

York, New York, 1988.

C. Industry Profile for Manufacturers

Following proposal, EPA received

comment from the Department of

Energy, the International Association of

Drilling Contractors, the Offshore Oil

Operators Committee, the American

Petroleum Institute, and from individual

companies expressing concern that the

proposed regulations could adversely

impact offshore and coastal oil and gas

drilling operations that use cooling

water. Among other concerns, these

commenters stated that:

• Offshore and coastal oil and gas

drilling facilities have much more

limited technology options for

addressing any adverse environmental

impact of cooling water intake than

land-based facilities;

• Under current regulations (40 CFR

435.11), existing mobile oil and gas

extraction facilities are considered new

sources when they operate on new

development wells and, could be

required to perform costly retrofits in

order to comply with the 0.5 ft/s

velocity standard if they become subject

to the proposed requirements for

cooling water intake structures at new

facilities; and

• Higher cooling water intake

velocities are necessary in marine

waters to control biofouling of cooling

water intake structures.

At proposal, EPA had not considered

or projected impacts on this industrial

category. EPA seeks additional

information on cooling water use by

offshore and coastal oil and gas

extraction facilities (e.g., drill ships,

semi-submersibles, jack-ups, tension-leg

platforms, spars, etc.). EPA requested

additional information from the

commenters (see #2–012A–B in the

Docket). The Agency has also sought

information from the Department of

Interior’s Minerals Management Service

and from the U.S. Coast Guard. This

new information suggests that mobile

offshore and coastal drilling units use

volumes of cooling water that could

make them subject to the proposed

regulations. However, little information

is available about impingement and

entrainment associated with this use of

cooling water or the costs or

achievability of measures to reduce any

adverse environmental impact. EPA

requests that the public provide peerreviewed data (e.g., journal articles),

operator/drilling contractor field data,

and/or design schematics for mobile

offshore drilling units to support or

dispute assertions made by these

commenters. Specifically, EPA would

like additional reference data for the

following areas:

• Cooling water intake structure

capacities (e.g., volumes of water used

per unit of time) and velocities

(specifically whether measured on a

through-screen or approach velocity

basis) for various types of offshore and

coastal oil and gas extraction facilities;

• Velocity requirements and other

preventative measures (e.g., type and

amount of chemical treatment,

backlashing) for inhibiting growth of

marine organisms;

• Potential issues (e.g., hull design

implications, load paths, fatigue, risks to

divers) related to either: (1) retrofitting

sea chests and other cooling water

intake structures for existing offshore

and coastal oil and gas extraction

facilities; or (2) outfitting newly-built

offshore and coastal oil and gas

extraction facilities with cooling water

intake structures consistent with the

proposed requirements for new

facilities;

• Estimated costs to retrofit existing

facilities or to outfit new facilities as

described in the preceding bullet, with

as much detailed information as

possible regarding the basis for the

estimates;

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28857

• Potential scheduling impacts on

new or existing mobile offshore and

coastal oil and gas extraction facilities

due to section 316(b) requirements for

new facilities; and

• What issues or costs, if any, would

make technologies for zero use of

cooling water unavailable or

economically impracticable on offshore

and coastal oil and gas extraction

facilities.

• Any impingement or entrainment

data collected at coastal or offshore oil

and gas extraction facilities.

EPA is considering not including

within the scope of this Phase I rule

offshore and coastal oil and gas

operations. Instead of addressing oil and

gas operations as part of this

rulemaking, EPA is considering

addressing oil and gas operations as part

of either the Phase II or Phase III

rulemaking. Alternatively, if EPA

addresses offshore and coastal oil and

gas facilities in this Phase I rule, EPA is

considering a higher regulatory

threshold for these facilities (e.g., 25 or

50 MGD).

2–012A Johnston, Carey A. USEPA. Memo

to File RE: Notes from April 4, 2001

Meeting with US Coast Guard. April 23,

2001.

2–012B Johnston, Carey A. USEPA. Memo

to File RE: Summary of Email

Correspondence with MMS on MODU

CWIS. April 2001.

D. New Data and Refinements to the

New Facility Framework Based on

Waterbody Type

1. Tidal Rivers and Estuaries

EPA received many comments about

its proposal to have the most stringent

technology requirements apply in all

parts of estuaries and tidal rivers (see

proposed 125.84(d), 65 FR 49118). Some

commenters assert that adverse

environmental impact can be minimized

in some, if not all, parts of tidal rivers

and estuaries with less protective

technologies than EPA proposed. Some

of these commenters observe that many

of the aquatic organisms that inhabit

tidal rivers and estuaries have

reproductive strategies that rely on

open-water dispersal of a very large

number of eggs and larvae and that,

even in the absence of impacts from a

cooling water intake structure, most of

the early life stages of these organisms

do not survive to a reproductive age.

Further, these commenters assert that

increased survival of early life stages of

these organisms can lead to increased

competition among later-stage juvenile

and adult organisms and actually

reduce, not increase, populations of

these organisms (see also the discussion

of options for defining adverse

environmental impact later in this

notice). In response to comments, EPA

further examined this issue and requests

comment on the following documents

found in #2–013A–O in the Docket.

These documents include information

on larval densities in selected estuaries

and tidal rivers, impingement and

entrainment rates for facilities located in

these areas, conditional mortality rates

of organisms in selected estuary and

tidal rivers (requires calculation of

larval densities), and discussions of the

life history and reproductive strategies

of marine and estuarine organisms that

are relevant to EPA’s consideration of

whether these locations may be

sensitive to impingement and

entrainment impacts associated with

cooling water intake structures. In the

proposed rule EPA asserted that

estuaries deserve the most stringent

protection because of the abundance

and diversity of aquatic life they harbor.

Estuaries are also an important habitat

for the vast majority of commercial and

recreational important species of fin

fish. Further, both EPA and commenters

noted that the reproductive strategies of

many estuarine species include pelagic

or planktonic larvae. EPA invites

comment on the documents which may

support a judgment that the

reproductive strategies of tidal river and

estuarine species, together with other

physical and biological characteristics

of those waters, make these ecosystem

waters particularly susceptible to

cooling water intake structures. In

addition to these documents, EPA notes

that some of the new data discussed

below (at Section E) regarding the

assessment of adverse environmental

impact, as well as information below

regarding the susceptibility of non-tidal

freshwater rivers and streams to cooling

water intake structure impacts (at

Section D.5.), also may be relevant in

determining whether tidal rivers and

estuaries are more sensitive to cooling

water intake structures than some parts

of other waterbodies.

2–013A Richkus, W., Versar, Inc. Memo to

EPA RE: Vulnerability of Biota of

Freshwater (Rivers, Lakes, Reservoirs)

versus Marine (Tidal River, Estuary,

Ocean) Habitats to Entrainment and

Impingement Impacts. April 2, 2001.

2–013B Winemiller, K.O., and K.A. Rose.

Patterns of life-history. Diversification in

North American Fishes: Implications for

Population Regulation. Canadian Journal of

Fisheries and Aquatic Sciences 49: 2196–

2218. 1992.

2–013C PSE&G. Renewal Application for

Salem Generating Station Permit No.

NJ00005622. Appendix F, Attachments 1 &

2. Baywide and In Plant Sampling

Programs and Sampling Methods; and

Model Methodologies and Common Input

Parameters. March 1999.

2–013D PSE&G. Renewal Application for

Salem Generating Station Permit No.

NJ00005622. Appendix L, Data Sets. March

1999.

2–013E New York Department of

Environmental Conservation. Draft

Environmental Impact Statement for State

Pollutant Discharge Elimination System for

Bowline Point, Indian Point 2 & 3, and

Roseton Steam Electric Generating

Stations. December 1999.

2–013F Kurkel Patricia, NOAA. Letter to

Deborah Hammond, EPA Region II RE:

Review of Draft Permit (Salem Nuclear

Generating Station). February 28, 2001.

2–013G ENSR and Marine Research Inc. for

Entergy Nuclear Generation Company.

Study of Winter Flounder Transport in

Coastal Cape Cod Bay and Entrainment at

Pilgrim Nuclear Power Station. 2000.

2–013H Boreman, J. and C.P. Goodyear.

Estimates of Entrainment Mortality for

Stripped Bass and Other Fish Species

Inhabiting the Hudson River Estuary.

American Fisheries Monograph 4: 152–

160. 1988.

2–013I McHugh, J.L. and J.J.C. Ginter.

Fisheries. MESA New York Bight Atlas

Monograph. January 16, 1978.

2–013J Dixon, D.A., EPRI. Catalog of

Assessment Methods for Evaluating the

Effect of Power Plant Operations on

Aquatic Communities. 1999.

2–013K Clark, J. and W. Brownell. Electric

Power Plants in the Coastal Zone:

Environmental Issues. American Littoral

Society Special Publication No. 7. 1973.

2–013L Cacela, Dave, Stratus Consulting

Inc. Memo to JT Morgan, EPA RE: Planned

Analysis of Ambient Larval Densities and

I&E. April 20, 2001.

2–013M Patrick, Ruth, Academy of

Sciences. Testimony at Public Hearing on

PSE&G Nuclear Generating Station Draft

NPDES Permit. Pennsville, NJ. January 23,

2001.

2–013N Bigelow, H.B. and W.C. Schroeder.

Fishes of the Gulf of Maine. Fishery

Bulletin 74 of the US Fish and Wildlife

Service. Volume 53. 1953.

2–013O Stratus Consulting, Inc. Memo to

Blaine Snyder, Tetra Tech, Inc. RE:

Estimation of Entrainment Using

Icthyoplankton Samples.

EPA requests comment on the above

documents.

2. Littoral Zone

EPA received many comments on

EPA’s proposed definition of ‘‘littoral

zone’’ and its use of this concept to

divide oceans, freshwater streams and

rivers, and freshwater lakes and

reservoirs, into areas where different

suites of technologies are judged to be

best technology available for

minimizing adverse environmental

impact. Many of these comments assert

that EPA’s proposed definition does not

give a rationale for delineating water

bodies into parts that are more or less

sensitive to impacts of cooling water

28858 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

intake structures. EPA requests

comment on the following data and

possible revisions to its approach for

delineating more and less sensitive parts

of waterbodies.

First, EPA is considering changing the

term ‘‘littoral zone,’’ which has a

relatively precise definition in

limnology (the study of lakes) to another

term such as ‘‘area of potential high

impact’’ or ‘‘productivity zone.’’ This

measure would avoid confusion with

the long-standing use of ‘‘littoral zone.’’

On the other hand, EPA might not use

a general term for areas with greater

potential for adverse impacts and might

define these areas on a waterbodyspecific basis.

For example, the Agency might

continue to define a sensitive area in

oceans, as it did at proposal: ‘‘the photic

zone of the neritic region. The photic

zone is that part of the water that

receives sufficient sunlight for plants to

photosynthesize. The neritic region is

the shallow water or nearshore zone

over the continental shelf.’’

3. Revised definition of estuary and

ocean

A number of commenters objected to

EPA’s proposal to define estuaries

based, in part, on salinity

concentrations (see ‘‘estuary’’ at

proposed 40 CFR 125.83). In response to

these comments, EPA requests comment

on new data it has gathered (as

described and compiled in #2–015A–G

in the Docket) which provides methods

for delineating estuaries. EPA is

considering revising its definition of

estuary to incorporate elements of the

information described in these

documents and requests comment on

use of these data to revise the definition

of estuary. EPA also requests comment

on a revised definition of estuary based

largely on the definition of estuary at

proposed 40 CFR 125.83 that would

read as follows: ‘‘estuary means all or

part of the mouth of a river or stream or

other body of water having an

unimpaired natural connection with

open oceans and within which the

seawater is measurably diluted with

fresh water derived from land drainage.

The salinity of an estuary exceeds 0.5

parts per thousand (by mass).’’

Finally, EPA is considering and

requests comment on a revised

definition of oceans at proposed 40 CFR

125.83 to read as follows: ‘‘ocean means

marine waters seaward of the mean low

tide mark or seaward of the waters

defined as estuary waters.’’

2–015A Dunham, Ray, California State

Water Control Board. Memo to USEPA

Office of Water, Office of Science and

Technology RE: Methods for Delineating

Estuary Boundaries. April 2000.

2–015B Shalowitz, A.L. and Michael W.

Reed. Shore and Sea Boundaries: Internal

Waters. Volume 3, Part 2, Chapter 6, page

222. 2000. (Available at: http://

chartmaker.ncd.noaa.gov:80/hsd/

shalowitz/part_two.pdf)

2–015C Shalowitz, A.L. and Michael W.

Reed. Shore and Sea Boundaries: The

Estuarine Ecosystem: Ecology of the

Intertidal and Subtidal Area. Volume 2,

Part 3, Chapter 1, pp. 259–293. 2000.

(Available at: http://ww.csc.noaa.gov:80/

otter/htmls/ecosys/ecology/estuary.htm)

2–015D National Oceanographic and

Atmospheric Administration. Coastal

Change Analysis Program (C–CAP):

Guidance for Regional Implementation.

2001. (Available at: http://

www.csc.noaa.gov:80/products/sf/html/

proto.htm)

2–015E National Oceanographic and

Atmospheric Administration. Coastal

Change Analysis Program (C–CAP):

Guidance for Regional Implementation.

Appendix 3. Description of Cowardin et al.

Systems and Classes. 1979. (Available at:

http://www.csc.noaa.gov:80/products/sf/

html/proto.htm#app3)

2–015F USEPA. Salinity. (Available at:

http://www.epa.gov/owow/estuaries/

monitor/chptr14.htm)

2–015G National Oceanographic and

Atmospheric Administration. The

Estuarine Ecosystem-Ecology of Tidal and

Subtidal Areas. (Available at: http://

www.csc.noaa.gov:80/otter/htmls/ecosys/

ecology/estuary.htm)

4. Great Lakes

At 65 FR 49086, the Agency noted

that the Great Lakes, like estuaries, have

areas of high productivity and sensitive

critical habitat that may need more

stringent requirements than those

proposed for lakes and reservoirs. One

commenter asserted that there is no

biological basis for treating the Great

Lakes separately and further asserted

that the communities in these lakes are

probably less sensitive than those in

other lakes. Since proposal, EPA has

gathered additional information on the

susceptibility of the Great Lakes system

to impact from cooling water intake

structures and may provide protections

for the Great Lakes beyond those

proposed for lakes and reservoirs. In #2–

016A–C in the Docket, EPA has made

available for comment information that

supports the idea that the Great Lakes

are a unique system that may deserve

additional protection from the impact of

cooling water intake structures. The

Agency requests comment on this

information and the position that the

Great Lakes should be protected to a

greater extent than other lakes and

reservoirs.

2–016A Herdendorf, C.E. Great Lakes

estuaries. Estuaries, 13(4): 493–503. 1990.

2–016B EPA. The Conservation of

Biological Diversity in the Great Lakes

Ecosystem: Issues and Opportunities.

Prepared by The Nature Conservancy, EPA

Great Lakes Program, Chicago, IL. 1999.

(Available at http://www.epa.gov/glnpo/

ecopage/issues.html)

2–016C EPA. Water Quality Guidance for

the Great Lakes System: Supplementary

Information Document (SID). EPA–820–B–

95–001. 1995.

5. Freshwater Rivers and Streams

EPA is considering data that may

support the proposition that the aquatic

species predominant in freshwater

rivers and streams have reproductive

and life history strategies that generally

make them less susceptible to the

impact of cooling water intake

structures. These data may demonstrate

that the species in these systems are

primarily demersal (bottom) and

adhesive egg-laying or nest-building

organisms. These species do not exhibit

the planktonic (free-floating) egg- and

larval-dispersal behaviors that may

expose early life stages to impact from

cooling water intake structures. One of

these documents also contains

assertions that freshwater fish

populations are not harvested as

extensively as marine fish, and that

management practices for marine fish

are slow to respond to over-exploitation.

EPA invites comment on the following

documents:

2–017A Wright, Jim, TVA. Memo to File

RE: Ecological Reasons Why Freshwater

River and Reservoir Systems Do Not

Normally Experience Substantive Impact

as a Result of Impingement and

Entrainment.

2–017B Dixon, Doug, EPRI. Memo to File

RE: Ecological Reasons Why Freshwater

River and Reservoir Systems Do Not

Normally Experience Measurable

Environmental Impact as a Result of

Impingement and Entrainment.

2–017C Karr, James R., et al., EPA. Habitat

Preservation for Midwest Stream Fishes:

Principles and Guidelines. 1983.

2–017D Lohner, Timothy W., American

Electric Power. Letter to Tom Wall, EPA et

al. RE: Final Report-Modeling of Possible

316(b) Effects on Selected Ohio River

Fishes. April 20, 2001.

2–013A Richkus, W., Versar, Inc. Memo to

EPA RE: Vulnerability of Biota of

Freshwater (Rivers, Lakes, Reservoirs)

versus Marine (Tidal River, Estuary,

Ocean) Habitats to Entrainment and

Impingement Impacts. April 2, 2001.

2–013B Winemiller, K.O., and K.A. Rose.

Patterns of life-history. Diversification in

North American Fishes: Implications for

Population Regulation. Canadian Journal of

Fisheries and Aquatic Sciences 49: 2196–

2218. 1992.

EPA is considering whether these data

would support a modification to its

proposed regulatory requirements for

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28859

freshwater streams and rivers. Such a

modification would: (1) Eliminate the

proposed requirement for facilities to

reduce intake capacity to a level

commensurate with use of a closedcycle cooling system for intakes located

inside or within 50 meters of the littoral

zone; and (2) require implementation of

additional design and construction

technologies that minimize

impingement and entrainment of fish,

eggs, and larvae and maximize survival

of impinged adult and juvenile fish

(such as extremely fine-mesh screens, or

fish return systems that significantly

increase the survival of impinged

organisms) in all parts of freshwater

rivers and streams rather than only

within the littoral zone. The approach

would retain the proposed requirements

for a design intake flow of ≤5% of the

source water mean annual flow and

≤25% of the source water 7Q10 low

flow, and a design intake velocity of

≤0.5 ft/s in all parts of freshwater rivers

and streams. This approach would

potentially have lower costs than the

proposed requirements. EPA invites

comment on this potential modification.

6. Exception for Areas Not Designated

To Support an Aquatic Life Use

Several commenters asserted that the

proposed regulations would require use

of protective and costly technologies in

areas that are not particularly

susceptible to impact from cooling

water intake structures because they do

not support aquatic life. EPA is

evaluating these comments and, in

response, may identify other less costly

technologies as best technology

available for minimizing adverse

environmental impact in waterbodies a

State or Tribe designates as having no

use supporting the propagation or

maintenance of aquatic life in

accordance with 40 CFR part 131 (e.g.,

the State or Tribe has conducted a Use

Attainability Analysis and EPA has

approved the revised use). EPA

recognizes that this would be a very

small set of water bodies and that

including such a provision would have

little practical effect on the regulatory

requirements for most new facilities.

EPA requests comment on other ways of

identifying or defining waters with low

susceptibility to impact from cooling

water intake structures because of

limited potential for aquatic life support

even in the absence of the facility.

E. Additional Data and Information

Concerning the Impingement and

Entrainment Approach and the

Population Approach and Biological

Assessment Approach to Defining

Adverse Environmental Impact

1. Additional Impingement,

Entrainment, and Mortality Data

Although EPA’s proposed regulatory

text did not include a definition of the

term ‘‘adverse environmental impact’’ in

the preamble to these regulations, the

Agency invited comment on a number

of alternatives for either defining

adverse environmental impact or

determining a threshold for the level of

environmental impact deemed to be

adverse. 65 FR 49074–49075.

EPA received numerous comments on

its proposed rule asserting that the

proper endpoint for defining adverse

environmental impact (AEI) is at the

population level, that some of EPA’s

proposed alternative definitions of

adverse environmental impact would

essentially protect ‘‘one fish,’’ and that

EPA’s alternative for defining adverse

environmental impact as recurring and

nontrivial impingement and

entrainment was vague or would lead to

excessive and costly efforts to protect a

very few fish that would not result in

ecologically relevant benefits. While

EPA’s record at proposal demonstrates

that cooling water intake structures do

not kill, impinge, or entrain just ‘‘one

fish,’’ or even a few aquatic organisms,

today’s Notice invites comment on

additional information that provides

further examples of cooling water intake

structures that kill or injure large

numbers of aquatic organisms. For

example, in #2–013 in the Docket, EPA

provides information on aquatic

organism conditional mortality rates for

the Hudson and Delaware rivers which

demonstrate the degree of mortality due

to cooling water intake structures. EPA

is considering this information, as well

as information (at Section E.2 below) on

impingement and entrainment survival

and impact, as it deliberates on options

for the final rule and how it should

define adverse environmental impact. If

EPA decides to include a definition of

AEI in the final rule, it is considering

whether to define adverse

environmental impact using a

population endpoint or an alternative

that relies upon counts of impinged and

entrained organisms.

Further, EPA is considering

documents that discuss potential

consequences associated with the loss of

large numbers of aquatic organisms.

These include impacts on the stocks of

various species, including any loss of

compensatory reserve due to the deaths

of these organisms, and the overall

health of ecosystems. EPA invites

comments on the following documents:

2–018A Boreman, J. Surplus Production,

Compensation, and Impact Assessments of

Power Plants. Environmental Science &

Policy. (31) 445–449. 2000.

2–018B Richkus, W., Versar Inc. Memo to

EPA RE: Primer on Entrainment and

Impingement Conditional Mortality Rate.

March 30, 2001.

2–018C EPA. Memo to File RE:

Impingement Values for Plants with Flows

Less Than 100 MGD. August 2000.

2–018D Loveridge, T., Chief Industrial

Permits Section, NYDEC. Transmittal of

Impingement and Entrainment Study for

Charles Point Resource Recovery Facility

to A. Bromberg, Chief Water Quality

Evaluation Section, NYDEC. January 14,

1987.

2–018E Richkus, W.A. and Richard

McLean. Historical Overview of Two

Decades of Power Plant Fisheries Impact

Assessment Activities in Chesapeake Bay.

Environmental Science and Policy. (31)

283–293. 2000.

EPA also invites commenters to submit

for consideration additional studies that

document either significant impacts or

lack of significant impacts from cooling

water intake structures. In addition,

EPA invites comment on the following

documents:

2–013C PSE&G. Renewal Application for

Salem Generating Station Permit No.

NJ00005622. Appendix F, Attachments 1 &

2. Baywide and In Plant Sampling

Programs and Sampling Methods; and

Model Methodologies and Common Input

Parameters. March 1999.

2–013E New York Department of

Environmental Conservation. Draft

Environmental Impact Statement for State

Pollutant Discharge Elimination System for

Bowline Point, Indian Point 2 & 3, and

Roseton Steam Electric Generating

Stations. December 1999.

2. Assessment of Population Modeling

Approach

Some commenters assert that impact

on individual organisms, large numbers

of individual organisms, or

subpopulations are not ecologically

relevant and recommend that EPA

define adverse environmental impact as

follows: ‘‘Adverse environment impact

is a reduction in one or more

representative indicator species that (1)

creates an unacceptable risk to the

populations’s ability to sustain itself, to

support reasonably anticipated

commercial or recreational harvests, or

to perform its normal ecological

function, and (2) is attributable to the

operation of the cooling water intake

structure.’’ Under this approach, EPA

would define unacceptable risk using a

variety of methods that fisheries

scientists have developed for estimating

28860 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

(1) the level of mortality that can be

imposed on a fish population without

threatening its capacity to provide

‘‘maximum sustainable yield,’’ as

developed under the Magnuson-Stevens

Fishery Conservation and Management

Act, on a long-term basis, and (2) the

optimum population size for

maintaining maximum sustainable

yield. (See W–00–03, 316(b), Comments

1.68).

In response to comments, EPA has

included in the record for comment a

memorandum providing a list of

references that EPA intends to review to

assess the merits of using a population

modeling approach to define adverse

environmental impact. EPA also intends

to evaluate and seeks comment on how

and whether it is possible to use such

models, which have historically been

used to perform single species

assessments, to assess impacts on

multiple species as is often necessary in

evaluating impingement and

entrainment by cooling water intake

structures. EPA invites comment on the

following documents found in #2–

019A–B in the Docket.

2–019A Strange, Liz, Stratus Consulting,

Inc. Memo to File RE: Scientific Literature

on Population Modeling. April 2001.

2–019B ESSA. Review of Portions of Salem

Permit—Final Report for New Jersey

Department of Environmental Protection.

June 2000.

Further, EPA has included

information addressing the issue of

compensation and its application

relative to the section 316(b)

rulemaking. In particular, EPA is

seeking comment on a memorandum

titled, ‘‘Compensation’’ in #2–020C in

the Docket. This document states that

the use of compensation factors is

typically limited to those cases where

fishery managers have extensive data on

a fish population and that specific,

numerical compensation values

generally are not used in the absence of

a robust data sets with a minimum of

15–20 years of data suggested.

Moreover, fish stocks for which these

robust data sets exist are generally the

highly exploited commercial and

recreational stocks and it is unlikely the

data exists for the non-harvested

species. This memorandum also notes

that in the absence of sufficient data,

various proxies are typically used in

order to side-step the need for

quantitatively determining

compensation. EPA invites comment on

each of the following documents in #2–

020A–D in the Docket:

2–020A National Marine Fisheries Service.

Our Living Oceans. Report on the Status of

U.S. Living Marine Resources. NOAA

Technical Memo #NMFS–F/SPO–41. 1999.

(Available at: http://spo.nwr.noaa.gov/

unit17.pdf)

2–020B Christensen, S.W., W.V. Winkle, L.

W. Barnthouse, and D.S. Vaughan. Science

and Law: Confluence and Conflict on the

Hudson River. Environmental Impact

Assessment Review, V.2, N.1. 1981.

2–020C Vaughan, Doug, NMFS. Memo to JT

Morgan, EPA RE: Compensation and

follow-up memo. April 19, 2001.

2–020D EPA. Guidelines for Ecological Risk

Assessment. Risk Assessment Forum, U.S.

Environmental Protection Agency,

Washington, DC. EPA/630/R–95/002F.

1998.

EPA is also evaluating information

submitted by the Utility Water Act

Group (UWAG) and the Electric Power

Research Institute (EPRI), both in their

comments and in studies provided to

the Agency after the comment period.

(See UWAG original comments at W–

00–03, 316(b), Comments 1.68; EPRI

original comments at W–00–03, 316(b),

Comments 1.58, EPRI documents

submitted after November 9, 2000 at W–

00–03, 316(b), Comments 2.11; EPRI

meeting material, January 24, 2001(see

#2–021A in the Docket); and UWAG

meeting material, January 25, 2001(see

#2–021B in the Docket)). In summary,

these comments and documents assert

or are intended to support the assertion

that entrainment of very large numbers

of eggs, larvae, and early juvenile-stage

fish does not necessarily meaningfully

affect populations of the entrained

species and that substantial percentages

of the organisms of many species may

survive entrainment. Further, these

comments and documents assert or are

intended to support the assertion that

impingement survival is high for many

species and that impingement often

impacts low-value, forage species when

they are naturally prone to seasonal dieoff regardless of cooling water intake

structures. One of these comments

asserts that EPRI and some of the best

fishery scientists in the world have

never identified a site where definitive

or conclusive aquatic population or

community level impacts have occurred

from operation of cooling water intake

structures. EPA invites comment on

each of these documents.

3. Biological Assessment Approach

Biological assessments and criteria are

recognized as important methods for

gathering relevant ecological data for

addressing attainment of biological

integrity and designated aquatic life

uses (see #1–5038–PR, #2–022A, #2–

022C, and #2–022F in the Docket). EPA

invites comment on the following

discussion and documents that identify

potential constraints on using these

methods to determine adverse

environmental impact from the

operation of cooling water intake

structures.

First, biological assessment and

criteria methods are still being

developed for large rivers and the Great

Lakes, two large water body types where

many cooling water intake structure are

located. Secondly, although biological

assessment and criteria methods have

been published by EPA for small

streams and wadeable rivers (see #2–

022A and #2–022D in the Docket), lakes

and reservoirs (see #2–022C in the

Docket), and estuaries and coastal

marine waters (see #1–5044–PR in the

Docket), many States have yet to

implement these methods in the largest

of these water bodies (reservoirs, lakes,

estuaries and coastal water (see #2–022B

and #2–022E in the Docket).) where

cooling water intake structure would be

located. Most work to date by the States

(see #2–022B, #2–022D and #2–022E in

the Docket) to use these methods has

been applied to small streams and

wadeable rivers where few cooling

water intake structures are located.

In addition, although bioassessments

and criteria are a valuable tool for

determining the biological condition of

a water body, in complex situations

where multiple stressors are present

(point source discharges, non-point

source discharges, harvesting, runoff,

hydromodifications, habitat loss,

cooling water intake structures, etc.), it

is not well understood at this time how

to identify all the different stressors

impacting the biology in a water body

and how best to apportion the relative

contribution to the biological

impairment of the stressors from each

source within a watershed (see #2–022E

in the Docket). Although ecological risk

assessment methods have been

successfully used to identify and

attribute causation of biological

impairment in some water bodies (see

#2–022F in the Docket), the application

of these approaches to cooling water

intake structures has not been tested.

EPRI has also developed a document

that examines the suitability of

multimetric bioassessment for

regulating cooling water intake

structures under Section 316(b) of the

CWA (see #2–022E in the Docket). In its

conclusion, EPRI states that biocriteria

are well suited for assessing

community-level effects but are not

designed as indices to measure

population-level effects without

additional analyses; that assumptions

about the structure and function of

ecosystems embedded in the biocriteria

approach appear to conflict with current

understanding of ecosystems as

dynamic, nonequilibrium systems

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28861

structured on multiple time and space

scales; and that issues such as

significant uncertainty in reference

conditions due to unaddressed sources

of natural variability among reference

sites may be of particular importance for

large, open systems such as estuaries

sand coastal marine wasters. EPA

invites comment on this document and

on the documents listed below, which

may be found in #2–022A–F in the

Docket:

2–022A EPA. Biological Criteria: Technical

Guidance for Streams and Small Rivers.

USEPA, Office of Science and Technology,

Washington, DC. EPA 822–B–96–001.

1996.

2–022B EPA. Summary of State Biological

Assessment Programs for Rivers and

Streams. USEPA, Office of Policy Planning

and Evaluation, Washington, DC. EPA 230–

R–96–007. 1996.

2–022C EPA. Lake and Reservoir

Bioassessment and Biocriteria. Technical

guidance document. Office of Water,

USEPA, Washington, DC. EPA 841–B–98–

007. 1998.

2–022D EPA. Rapid Bioassessment

Protocols for Use in Wadeable Streams and

Rivers. Second Edition. Office of Water,

USEPA, Washington, DC. EPA 841–B–99–

002. 1999.

2–022E Jacobson, P. Evaluation of

Biocriteria as a Concept, Approach, and

Tool for Assessing Impacts of Impingement

and Entrainment Under § 316(b) of the

Clean Water Act, EPRI, Palo Alto, CA. TR–

114007. 2000.

2–022F EPA. Stressor Identification

Guidance Document. Office of Water,

USEPA, Washington, DC. EPA–822–B–00–

025. 2000.

EPA also invites comment on the following

documents made available at proposal on

August 10, 2000:

1–5038–PR EPA. Estuarine and Coastal

Marine Waters : Bioassessment and

Biocriteria Technical Guidance. USEPA,

Office of Water Regulations and Standards,

Washington, DC. EPA 822–B–00–024.

2000.

1–5044–PR EPA. Biological Criteria:

National Program Guidance for Surface

Waters. USEPA, Office of Water

Regulations and Standards, Washington,

DC. EPA 440–5–90–004. 1990.

4. Additional Information Supporting

That Impingement and Entrainment

May Be a Non-Trivial Stress on a

Waterbody

In addition to reviewing the merits of

a population approach to assessing

adverse environmental impact, EPA is

also considering additional information

suggesting that impingement and

entrainment, in combination with other

factors, may be a non-trivial stress on a

waterbody. EPA recognizes that cooling

water intake structures are not the only

source of human-induced stress on

aquatic communities. These stresses

include, but are not limited to, nutrient

loadings, toxics loadings, low dissolved

oxygen content of waters, sediment

loadings, stormwater runoff, and habitat

loss. While recognizing that a nexus

between a particular stressor and

adverse environmental impact may be

difficult to establish with certainty, the

Agency has identified methods for

evaluating more generally the stresses

on aquatic communities from humaninduced perturbations other than

fishing. Of particular importance is the

recognition that stressors that cause or

contribute to the loss of aquatic

organisms and habitat may

incrementally impact the viability of

aquatic resources. EPA is examining

whether waters meet their designated

uses, whether fisheries are in stress, and

whether waters would have higher

water quality or better support their

designated uses if EPA established

additional requirements for new cooling

water intake structures. EPA is

considering use of this type of

information as one approach for

evaluating adverse environmental

impact and requests comment on this

approach.

EPA has prepared a brief

memorandum (Dabolt, Thomas, EPA.

Memo to File RE: 316(b) Analysis—

Relationship of Location to Cooling

Water Intake Structures to Impaired

Waters. April 18, 2001.) documenting

that about 35% of existing cooling water

intake structures at facilities that

completed EPA’s detailed section 316(b)

questionnaire are located within two

miles of locations within waterbodies

identified as impaired and listed by a

State as needing development of a Total

Maximum Daily Load to restore the

waterbody to its designated use. EPA

recognizes, however, that these data do

not establish that cooling water intake

structures are the cause of adverse

environmental impact in any particular

case and that there may be other reasons

for the presence of impaired waters near

cooling water intake structures, such as

the frequent location of facilities with

cooling water intake structures near

other potential sources of impairment

(e.g., industrial point sources, urban

stormwater). EPA requests comment on

the relevance of these data to adverse

environmental impact determinations

for cooling water intake structures (see

#2–023 in the Docket).

EPA has also summarized information

from a number of sources indicating

overutilization of about 46% of the

fishery stocks of known status tracked

by and under NOAA purview (73 out of

158 stock groups), and which rely on

tidal rivers, estuaries, and oceans for

spawning, nursery, or adult habitat. An

additional 45 stocks under NOAA

purview are of unknown status (about

22% of the fishery). In addition, NOAA

documents in a number of their Fishery

Management Plans that cooling water

intake structures, and in particular

once-through cooling water systems that

withdraw large volumes of water, cause

adverse environmental impacts due to

significant impingement of juveniles

and entrainment of eggs and larvae. EPA

recognizes that stress due to

overutilization may not be directly

relevant to adverse environmental

impact, but believes that it may be

relevant to assessing cumulative

impacts of multiple stressors, including

cooling water intake structures. EPA

requests comment on the potential use

of these data for this purpose.

EPA invites comment on the

following documents and information

the Agency is considering as it evaluates

possible definitions of adverse

environmental impact and concerns

associated with assessing multiple

stressors and their impacts on aquatic

communities (see #2–024A–O in

Docket).

2–024A Angermeier, P.L. and J.E. Williams.

Conservation of Imperiled Species and

Reauthorization of the Endangered Species

Act of 1973. Fisheries. 19(1): 26–29. 1994.

2–024B Gulf of Mexico SPR Management

Strategy Committee. An Evaluation of the

Use of SPR Levels as the Basis for

Overfishing Definitions in Gulf of Mexico

Finfish Fishery Management Plans: Final

Report, Gulf of Mexico Fishery

Management Council, Tampa, FL. 1996.

2–024C Branstetter, S. Bycatch and its

Reduction in the Gulf of Mexico and South

Atlantic Shrimp Fisheries. Gulf & South

Atlantic Fisheries Development

Foundation, Inc., Tampa, FL. 1997.

2–024D Crowder, L.B., and S.A. Murawski.

Fisheries Bycatch: Implications for

Management. Fisheries. 23(6): 8–17. 1998.

2–024E Weeks, H. and S. Berkeley.

Uncertainty and Precautionary

Management of Marine Fisheries: Can the

Old Methods Fit the New Mandates?

Fisheries Management, Vol 25, No.12.

2000.

2–024F Boreman, J. Methods for Comparing

the Impacts of Pollution and Fishing on

Fish Populations. Transactions of the

American Fisheries Society. 126: 506–513.

1997.

2–024G Schaaf, W.E. et al. Fish Population

Responses to Chronic and Acute Pollution:

The Influence of Life History Strategies.

Estuaries. Vol. 10, No.3, page 267–275.

September 1987.

2–024H Schaaf, W.E. et al. A Simulation

Model of How Life History Strategies

Mediate Pollution Effects on Fish

Populations. Estuaries. Vol. 16, No.4, page

697–702. December 1993.

2–024I Vaughan, D. S., R. M. Yoshiyama, J.

E. Breck, and D. L. DeAngelis. Modeling

Approaches for Assessing the Effects of

Stress on Fish Populations in Contaminant

28862 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

Effects on Fisheries. John Wiley & Sons,

New York. p. 259–278. 1984.

2–024J National Marine Fisheries Service.

Scientific Review of Definitions of

Overfishing in US Fishery Management

Plans. August 1994.

2–024K National Marine Fisheries Service.

Scientific Review of Definitions of

Overfishing in US Fishery Management

Plans—Supplemental Report. March 1996.

2–024L Restrepo, Victor R., Pamela M.

Mace and Fredric M. Serchuk. The

Precautionary Approach: A New Paradigm

or Business as Usual? Our Living Oceans.

1998.

2–024M National Marine Fisheries Service.

Atlantic Mackerel, Squid, and Butterfish

Fishery Management Plan—Amendment 8.

August 1998.

2–024N National Marine Fisheries Service.

The Coastal Pelagic Species Fishery

Management Plan—Amendment 8.

December 1998.

2–024O National Marine Fisheries Service.

New England Fishery Management

Council. Essential Fish Habitat

Amendment. October 1998.

In addition, EPA invites comment on

the following documents:

2–020A National Marine Fisheries Service.

Our Living Oceans. Report on the Status of

U.S. Living Marine Resources. NOAA

Technical Memo #NMFS–F/SPO–41. 1999.

(Available at: http://spo.nwr.noaa.gov/

unit17.pdf)

2–018A Boreman, J. Surplus Production,

Compensation, and Impact Assessments of

Power Plants. Environmental Science &

Policy. (31) 445–449. 2000.

EPA has gathered new data on

adverse environmental impact

determinations made in connection

with State and Federal NPDES Permit

decisions. EPA invites comment on the

following documents compiled in #2–

025A–W in the Docket.

2–025A State of California, California

Regional Water Quality Control Board,

Central Coast Region. Staff Report for

Regular Meeting of October 27, 2000.

Supplemental Sheet, Item Number 23,

Subject: Diablo Canyon Nuclear Power

Plant, Resolution of Thermal Discharge and

Entrainment/Impingement Impacts.

October 2000.

2–025B California Regional Water Quality

Control Board, Central Coast Region. Waste

Discharge Requirements Order No. 00–041,

NPDES No. CA00062554 for Duke Energy

North America, Moss Landing Power Plant,

Units 1, 2, 6, and 7 Monterey County.

October 27, 2000.

2–025C New Jersey Department of

Environmental Protection and Energy

Wastewater Facilities Regulation Program.

In the Matter of NJDEP Public Hearing on

Draft Permit No. NJ 0005652 for the Salem

Nuclear Generating Station, Transcript

Proceedings. Thursday, September 9, 1993.

2–025D New Jersey Department of

Environmental Protection and Energy

Wastewater Facilities Regulation Program,

Bureau of Standard Permitting. Public

Notice, Consideration of Section 316

Variance Request, Intent to Renew Existing

New Jersey Pollutant Discharge

Elimination System/Discharge to Surface

Water (NJPDES/DSW) Permit NJ0005622,

and Notice of Public Hearing. June 24,

1993.

2–025E State of New Jersey Department of

Environmental Protection, Division of

Environmental Protection, Division of

Water Quality. Fact Sheet for NPDES

Permit Including Section 316(a)

Determination and Section 316(b)

Decision, Permit No. NJ0005622. July 1994.

2–025F State of New Jersey Department of

Environmental Protection, Division of

Environmental Protection, Division of

Water Quality. Response to Comments

Document PSE&G Salem Generating

Station, NJPDES/DSW Draft Permit

NJ0005622. July 1994.

2–025G State of New Jersey Department of

Environmental Protection, Division of

Environmental Protection, Division of

Water Quality. PSE&G Salem Nuclear

Generating Station NJPDES Permit

#NJ0005622. 1994.

2–025H EPA Region IV. Record of Decision

on Tampa Electric Company Big Bend Unit

4, NPDES Permit No. FL0037044. April 7,

1982.

2–025I EPA Region IV. Finding of Fact for

TVA John Sevier Station. October 23, 1978.

2–025J EPA Region IV. 316 Determinations,

John Sevier Steam Plant, NPDES No.

TN0005436. April 15, 1986.

2–025K EPA Region IV and Florida

Department of Environmental Regulation.

Joint Public Notice, No. 78FL0080. Notice

of Proposed Modification of National

Pollutant Discharge Elimination System

Permit and Notice of Consideration for

State Certification, Crystal River Power

Plant Units 1, 2, and 3, NPDES No.

FL0000159. January 8, 1978.

2–025L EPA Region IV. Public Hearing

Statement, Florida Power Corporation

Crystal River Units 1, 2, and 3. February 3,

1987.

2–025M EPA Region IV. Biological

Assessment, Florida Power Corporation

Crystal River Power Plant, 316A & B

Demonstration. Date Unknown.

2–025N EPA Region IV. In the Matter of

Florida Power Corporation Crystal River

Power Plant Units 1, 2, and 3, Citrus

County Florida, NPDES Permit No.

FL0000159, Findings and Determinations

Pursuant to 33 U.S.C. Section 1326.

September 1988.

2–025O EPA Region IV and Florida

Department of Environmental Regulation.

Joint Public Notice, No. 88FL036, Notice of

Proposed Reissuance of National Pollutant

Discharge Elimination System Permit,

Tentative Determination of Substantial

Damage, Tentative Section 316 Findings

and Determinations, Notice of

Consideration for State Certification, and

Notice of Public Hearing, Crystal River

Power Plant Units 1, 2, and 3, NPDES No.

FL0000159. May 19, 1988.

2–025P EPA Region IV. Florida Power

Corporation, Crystal River Power Plant

Units 1, 2, and 3, NPDES No. FL0000159,

Public Hearing. February 4, 1987.

2–025Q EPA Region IV. Fact Sheet,

Application for National Pollutant

Discharge Eliminations System Permit to

Discharge Treated Wastewater to U.S.

Waters, Application No. FL0000159,

Florida Power Corporation, Crystal River

Power Plant Units 1, 2, and 3. September

1, 1988.

2–025R EPA Region IV and Florida

Department of Environmental Regulation.

Joint Public Notice, No. 86FL100, Notice of

Proposed Reissuance of National Pollutant

Discharge Elimination System Permit,

Tentative Determination of Substantial

Damage, Tentative Section 316 Findings

and Determinations, Notice of

Consideration for State Certification,

Crystal River Power Plant Units 1, 2, and

3, NPDES No. FL0000159. December 18,

1986.

2–025S Kaplan, Charles, EPA Region IV.

Letter to Dr. Patsy Y. Baynard, Director

Environmental and Licensing Affairs,

Florida Power Corporation, RE: Crystal

River Power Plant Units 1–3, NPDES No.

FL0000159, 316(a &b) Demonstration

Meeting—September 18, 1985 and

Attachments. August 23, 1985

2–025T White, John C., EPA Region IV.

Letter to Honorable Lawton Chiles, June 8,

1978.

2–025U Hart, Dennis. State of New Jersey

Department of Environmental Protection,

Division of Environmental Protection,

Division of Water Quality. Letter to

Richard L. Caspe, EPA Region II RE:

PSE&G Salem Nuclear Generating Station,

NJPDES #NJ0005622. January 31, 1994.

2–025V Caspe, Richard L, EPA Region II.

Letter to John Weigart, State of New Jersey

Department of Environmental Protection,

Division of Water Quality RE: Response to

Dennis Hart Letter of January 31, 1994.

1994

2–025W Hicks, Delbert B., EPA Region IV.

Letter to Charles Kaplan, EPA RE: Crystal

River 316(b) Findings. Date Unknown.

In addition, EPA invites comment on

the following documents:

2–013F Kurkel Patricia, NOAA. Letter to

Deborah Hammond, EPA Region RE:

Review of Draft Permit (Salem Nuclear

Generating Station) II. February 28, 2001

5. Other Options for Interpreting

Adverse Environmental Impact

In the proposed rule preamble, EPA

discussed several other option for

interpreting adverse environmental

impact. One option would be to look to

section 316(a) of the Clean Water Act for

guidance in assessing adverse

environmental impact from cooling

water intake structures. Section 316(a)

addresses requirements for thermal

discharge and provides that effluent

limitations associated with such

discharge should generally not be more

stringent than necessary to ‘‘assure the

protection and propagation of a

balanced indigenous population of

shellfish, fish, and wildlife in and on

that body of water.’’ The same language

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28863

is repeated in section 303(d) with

reference to Total Maximum Daily Load

listing requirements for waters impaired

by thermal discharge. These statutory

provisions show that Congress intended

this standard to be used in evaluating

the environmental impacts of thermal

discharges. Some have suggested that

since thermal discharges are usually

paired with cooling water intake, it may

be reasonable to interpret the Clean

Water Act to apply this standard in

evaluating adverse environmental

impact from cooling water intake

structures as well.

Another option would be to define

adverse environmental impact as a level

of impingement and entrainment that is

‘‘recurring and non trivial.’’ 65 FR

49074. EPA is considering refining that

idea by interpreting ‘‘recurring and non

trivial’’ impacts as the degree of

impingement and entrainment that

would have resulted from the use of the

traditional technologies in use at the

time the Clean Water Act (including

section 316(b)) was enacted in 1972.

EPA believes that the traditional

technology in use at that time would

have been a once-through cooling

system with a simple bar rack screen to

minimize entrainment of large debris

items and a simple mesh screen to

minimize entrainment of small debris

items into the condenser. Under this

approach, EPA would define the

common performance of the traditional

technologies as having an adverse

environmental impact and then

consider reasonable requirements to

improve over that performance. EPA

recognizes that the statutory phrase

‘‘minimize adverse environmental

impact’’ could be interpreted in a way

that focuses on the environmental

impacts of cooling water intake

structures to determine whether and to

what extent these impacts are

‘‘adverse,’’ perhaps using a population

approach, as suggested by some.

However, EPA believes that the phrase

‘‘best technology available to minimize

adverse environmental impact’’ could

also reasonably be interpreted in a way

that focuses on the technology, rather

than the impact, in a manner analogous

to the technology-based standards

applicable to point source dischargers

under Clean Water Act sections 301,

304, and 306. EPA requests comment on

these alternative approaches for

interpreting adverse environmental

impact.

EPA also notes that a number of other

options for interpreting or defining

adverse environmental impact were

discussed in the proposal (65 FR 49074),

and does not intend in this notice to

suggest that they are not still under

active consideration. EPA is still

considering all of the options for

interpreting and defining adverse

environmental impact that were

discussed in the proposal as options for

the final rule and invites further

comment on any of them.

F. Additional Data Related to the

Specific Technology Limits in the

Proposed Regulations

1. Proportional Flow Limits for

Freshwater Streams and Rivers and

Tidal Rivers, Estuaries

EPA proposed specific flow limits of

5% of mean annual flow of freshwater

streams and rivers because the Agency

determined this would be the best way

to protect 95% of the aquatic life in

these water bodies from entrainment.

EPA also proposed to limit withdrawals

from estuaries and tidal rivers to 1% of

the tidal excursion. The proposed limit

is based on the concept that withdrawal

of a unit volume of water from a water

body will result in the impingement

and/or entrainment of an equivalent

unit of aquatic life (particularly eggs and

larval organisms) suspended in that

volume of the water column. This, in

turn, is related to the idea that the

density of aquatic organisms withdrawn

by a cooling water intake structure is

equivalent to the density of the

organisms in the water column. Thus, if

5% of the mean annual flow (or

alternative proposed levels of 10% and

15% for freshwater bodies) is

withdrawn, it will result in the

impingement and/or entrainment of 5%

(or alternative) of the aquatic life in that

water body.

Some commenters asserted that this

assumption is not valid. They argued

that aquatic organisms are not uniformly

distributed within the water column

and that patchy distribution of aquatic

organisms invalidates the assumption

that withdrawal of a certain percentage

of a water body would correlate to an

equivalent withdrawal of aquatic life.

Since proposal, EPA received new

information concerning the distribution

and density of organisms in natural

waters. In #2–013 D and E in the Docket,

EPA is providing for comment

information on the density of organisms

in the Hudson and Delaware rivers as

well as in Mt. Hope Bay. In #2–013J in

the Docket, the Agency is also providing

for comment information on models

identified by EPRI that may be used to

estimate and/or evaluate aquatic

organism densities in order to estimate

entrainment rates. EPA believes the use

of these data and modeling approaches

is supportable because assessments of

aquatic organism densities are the basis

for calculations for the empirical

transport model which is, in turn, the

basis for calculating conditional

mortality rates. Both of these methods

are widely used by industry and

regulatory agencies to estimate losses

related to cooling water intake

structures.

The Agency has identified

information from other State and

Federal agencies that supports the need

for flow-based standards to protect

aquatic organisms. This information

includes methodologies for determining

the limiting flow conditions for a

waterbody for the protection and

propagation of aquatic life and wildlife

in stream environments (see #2–026B,

#2–026C, and #2–026D in the Docket).

EPA invites comment on the following

documents:

2–026A Goodyear, C.P. Mathematical

Methods to Evaluate Entrainment of

Aquatic Organisms by Power Plants. U.S.

Fish and Wildlife Service National Power

Plant Team. FWS/OBS–76/20.3. 1977.

2–026B Lang, Vernon. Questions and

Answers on the New England Flow Policy.

U.S. Fish and Wildlife Service. Concord,

New Hampshire. May 11, 1999.

2–026C Kulik, Brandon. A Method to

Refine the New England Aquatic Base Flow

Policy. Rivers. Volume 1, Number 1. Pages

8–22.

2–026D Washington State, Department of

Ecology. Questions and Answers—An

Overview of the Instream Flow Incremental

Methodology. QWR–95–1–4. August 1995.

2–013J Dixon, D.A., EPRI. Catalog of

Assessment Methods for Evaluating the

Effect of Power Plant Operations on

Aquatic Communities. 1999.

2–013L Cacela, Dave, Stratus Consulting

Inc. Memo to JT Morgan, EPA RE: Planned

Analysis of Ambient Larval Densities and

I&E. April 20, 2001.

EPA also invites comment on the

following supplement to the discussion

at proposal of the proposed limitations

on intake flow as a proportion of

waterbody flow (see 65 FR 49085–

49087). EPA is considering whether a

proportional flow limitation would have

the effect of reducing or minimizing

adverse environmental impact that may

be associated with withdrawal of large

volumes of cooling water from relatively

small water bodies. EPA is considering

and seeks comment, in particular, about

the efficacy of the proposed limitation

associated with the mean annual flow of

freshwater streams and rivers. These

limitations could be effective because

large-volume withdrawals occurring on

a year-round basis may affect all aspects

of the life cycles of the organisms

susceptible to entrainment. Inasmuch as

some commenters have asserted that

aquatic organisms are not uniformly

distributed within the water column

28864 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

1Hypolimnion: The deep, cold, and relatively

undisturbed region below the thermocline. From:

Hutchinson, G.E. 1975. A Treatise on Limnology,

Volume 1, Part 1—Geography and Physics of Lakes.

John Wiley & Sons, New York. (See #2–027B in the

Docket).

(i.e., exhibit ‘‘patchy’’ distribution), the

withdrawal of large volumes of water

may, over the course of the year, smooth

out the ‘‘patchiness’’ and subject a

portion of the biota commensurate with

intake flow to entrainment. The Agency

is considering and seeks comment on

whether a proportional flow standard

based on mean annual flow proposed at

40 CFR 125.84(b) will effectively protect

smaller freshwater rivers and streams

from levels of impingement and

entrainment proportional to the volume

of water withdrawn from these

waterbodies.

2. Limitation on Altering Stratification

in Lakes and Reservoirs

At least one commenter asserted that

the regulation as proposed can be

interpreted to require that no alteration

of the natural thermal stratification is

allowed, regardless of the size, limit, or

location relative to the intake structure.

They further asserted that this standard

is unachievable and should not be

included in the final rule.

The Agency continues to consider

whether these regulations should limit

withdrawals of large quantities of

cooling water from lakes which are

naturally stratified. In particular, EPA is

considering whether the withdrawal of

large quantities of subsurface water may

negatively affect a lake’s thermal

stratification and seasonal turnover

dynamics. EPA is also considering

whether cooling water withdrawals

from deeper, colder areas within lakes,

followed by discharge of used cooling

water either at, or where it may rise to,

the lake’s surface, may bring nutrientrich, hypolimnion 1 water to the surface

where it may stimulate the growth and

respiration of harmful levels of algae

and other biological assemblages within

a lake. EPA is considering and invites

comment on whether such concerns are

appropriately addressed in regulation

for cooling water intake structures or

should be addressed by a permitting

agency when it establishes any

limitations on the discharge of the

cooling water.

EPA is also considering whether the

proposed limitation to ‘‘not alter’’ and

‘‘not upset’’ natural stratification may be

subject to considerable interpretation

such that the intent of that portion of

the proposed regulation is not

sufficiently clear. Thus, the Agency

solicits public comments on the

information contained in ‘‘Cumulative

Impacts of Power Plant Cooling Systems

on Lake TMDLs’’ (see #2–027A in the

Docket) which supports the idea of

maintaining natural stratification. EPA

also requests comment on the use of the

phrase ‘‘not disrupt the natural

stratification and turnover pattern of the

source water body’’ and invites

commenters to suggest other alternatives

to the terms ‘‘not alter the natural

stratification of the source water body’’

or ‘‘not upset the natural stratification of

the source water body’’ as used at 65 FR

49077 and 49118.

2–027A Chen, C.W., L.H. Ziemelis, J. Herr

and R.A. Goldstein. Cumulative Impacts of

Power Plant Cooling Systems on Lake

TMDLs. Proceedings of an EPRI Conference

: Power generation Impacts on Aquatic

Resources. Atlanta, Georgia. April 12–15,

1999.

3. Velocity

EPA proposed 0.5 ft/sec as a velocity

limit in all waters except those 50

meters beyond the littoral zone in lakes

and reservoirs. Since proposal, EPA has

gathered or received data on the

swimming speed of fish of various

species from EPRI (see W–00–03, 316(b)

Comments 2.11), from the University of

Washington studies that support the

current National Marine Fisheries

Service velocity standard for intake

structures and from references included

in comments from the Riverkeeper (see

Turnpenny, 1988, referenced in W–00–

03, 316(b) Comments 2.06. Document

found in #2–028B in the Docket). All of

the swim speed data used is contained

in #2–028 in the Docket. Also located in

#2–028 in the Docket, is new data EPA

received from the National Marine

Fisheries Service on screen design

consideration for approach velocities to

protect juvenile salmonids.

2–028A EPRI. Technical Evaluation of the

Utility of Intake Approach Velocity as an

Indicator of Potential Adverse

Environmental Impact Under Clean Water

Act Section 316(b). Technical Report.

1000731. 2001.

2–028B Turnpenny, A.W. H. The

Behavioral Basis of Fish Exclusion from

Coastal Power Station Cooling Water

Intakes. Central Electricity Generating

Board Research Report, RD/L/3301/R88.

1988.

2–028C Smith, L.S., L.T. Carpenter.

Salmonid Fry Swimming Stamina Data for

Diversion Screen Criteria. Prepared by

Fisheries Research Institute, University of

Washington, Seattle, WA for Washington

State Department of Fisheries and

Washington State Department of Wildlife.

1987.

2–028D Pearce, Robert O. and Randall T.

Lee. Some Design Considerations for

Approach Velocities at Juvenile Salmonid

Screening Facilities. American Fisheries

Symposium. 1991.

The Graph (Swim Speed Data, #2–029

in the Docket), is a compilation of the

data EPA received on fish swimming

speeds as it varies with the length of the

tested fish and with water temperature.

These data show that, not accounting for

any safety margin to address screen

fouling (which increases velocity in

screen areas that remain open), a 1.0 ft/

s velocity standard would protect 78%

of the tested fish, and a 0.5 ft/s velocity

would protect 96% of these fish. EPA is

evaluating these data and considering

whether to maintain or modify the

proposed velocity limitation. To

estimate the extent to which a lowvelocity performance standard might

affect new facilities, EPA also is

evaluating preliminary data on the

design intake velocity of existing

facilities from the Agency’s section

316(b) survey questionnaire (see

Percentage Distribution of Intake

Velocities for Recently Constructed InScope Cooling Water Structures, #2–030

in the Docket). These preliminary data

indicate that 73% of the manufacturing

facilities and 62% of the electricity

generating facilities built in the last 15

years meet the proposed velocity

limitation of no more than 0.5 feet/

second.

EPA is evaluating a number of other

issues that could cause it to modify the

proposed velocity limitation. As

discussed at Section A.3 above, EPA

received comments asserting that

offshore and coastal oil and gas

platforms might be subject to the rule

and face difficulties meeting the

proposed velocity limitation due to

biofouling concerns in marine waters

and engineering/technical issues

associated with drilling platforms. EPA

is evaluating these assertions and

seeking additional information on this

topic. Should EPA include new offshore

and coastal oil and gas platforms within

the scope of the final regulations, the

Agency will decide whether

subcategorization and a different

velocity limitation may be appropriate

for these facilities. EPA is also

investigating whether biofouling is an

issue for cooling water intake structures

at land-based facilities.

In response to comments, EPA is

evaluating whether the 0.5 ft/s velocity

limitation is appropriate or necessary

for offshore intakes equipped with

velocity caps. Velocity caps work by

changing vertical flows, which fish do

not avoid because they can not detect,

to horizontal flows, which fish detect

and avoid. Commenters suggested that

offshore intakes with velocity caps

designed with velocities greater than 0.5

ft./s would be more effective in reducing

biofouling than those with lower

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28865

velocities and would be more effective

in protecting fish located in waterbodies

with higher flow velocities. Commenters

also raised issues associated with the

effects of tidal and long-shore currents

on velocities in the vicinity of velocity

caps. EPA identified documentation (see

Turnpenny, 1988, W–00–03, 316(b)

Comments 2.06 in #2–028B in the

Docket; Mussalli, Taft, Larson, 1980;

and Schlenker 2001 in #2–031B in the

Docket ) that may substantiate

commenters’ concerns with the

influence of tidal and current velocities

on velocities at a velocity cap. However,

the documentation also provides design

solutions to minimize the influence of

water body currents on velocity caps.

EPA identified documents indicating

that, in these circumstances, limiting

velocities at intakes with velocity caps

may afford some additional protection,

but that the entrainment reduction may

be small. One of the documents states

that the location of the submerged

intake structure may be the most

important factor in limiting the impact

from the intake structure. EPA requests

comment on the following documents.

2–031A Mussalli, Yusuf, et al. Offshore

Water Intakes Designed to Protect Fish. In:

Journal of the Hydraulics Division,

Proceedings of the American Society of

Civil Engineers, Vol. 106, No. HY11. 1980.

2–031B Schlenker, Stephen J, Army Corps

of Engineers. Email on: Section 316(b)

Rulemaking (Velocity) to Kelly Meadows,

Tetra Tech, Inc. April 18, 2001.

2–028B Turnpenny, A.W.H. The Behavioral

Basis of Fish Exclusion from Coastal Power

Station Cooling Water Intakes. Central

Electricity Generating Board Research

Report, RD/L/3301/R88. 1988.

EPA also requests comment on the

American Society of Engineers’ Design

of Water Intake Structures for Fish

Protection (see #2–032 in the Docket)

which suggests that design velocities

should range from 0.5 ft/s to 1.5 ft/s.

Based on comments and these

documents, the Agency requests

comment on allowing velocities of up to

1.5 ft/s at offshore intake structures with

velocity caps in all types of waterbodies.

2–032 American Society of Engineers.

Design of Water Intake Structures for Fish

Protection. Section III. Engineering Factors

Influencing Intake Design and Parts of

Section VI. Practical Fish Protection

Methods (Velocity Cap for Offshore Water

Withdrawals). New York. pp. 13–23 and

66. 1982.

Finally, EPA is considering comments

on where velocity should be measured.

Some commenters assert that velocity

should be measured on the basis of

‘‘approach-velocity’’ rather than the

proposed design intake velocity (also

known as through-screen or throughtechnology velocity). Other commenters

assert that velocity should be measured

where its value is highest, which might

be at the screen face or at another

location in front of the screen (for

example, at a narrow constriction in an

intake canal or at a narrow opening in

a curtain wall placed in front of the

screen). (See W–00–03, 316(b)

Comments 2.06 (River Keeper) and 1.56

(EPRI). EPA is also providing for

comment, the document contained in

#2–033 in the Docket.

2–033 Ray, S.S., R.L. Snipes, and D.A.

Tomljanovich. A State of the Art Report on

Intake Technologies. Environmental

Protection Agency Office of Research and

Development, Office of Energy, Minerals,

and Industry. EPA 600/7–76–020; TVA

PRS–16. 1976.

4. Rulemaking Framework—Burden on

States To Implement Section 316(b) on

a Case-by-Case Basis

One objective of EPA’s proposed rule

was to develop section 316(b)

requirements applicable to broad classes

of waterbodies in order to minimize the

permitting burden on the States (which,

for the most part, are the permit

authorities responsible for

implementing section 316(b)). Some

States have expressed concern about

adopting a site-specific approach for

new facilities which, in their view,

would require a burdensome

expenditure of resources to develop

section 316(b) requirements for each

new facility. States that commented on

the proposed regulations, including

Michigan, New York, New Jersey, and

Alaska, generally supported the

adoption of minimum technology

requirements. Michigan and New Jersey

specifically expressed concern about the

existing case-by-case approach. Only

Louisiana specifically opposed adoption

of the proposed regulations, stating that

any requirements for cooling water

intake structures should be

implemented under the CWA section

404 program or under section 10 of the

Rivers and Harbors Act.

EPA invites comment on additional

information documenting resources that

several States have devoted to

implementing section 316(b) on a caseby-case basis (see #2–034A–B in the

Docket). EPA will consider this

information as the Agency evaluates the

practicality of various alternatives for

the final rule. EPA invites commenters

to submit any other data on the

workload associated with implementing

section 316(b) under the current caseby-case approach. EPA also invites

comment on the need for nationally

applicable regulations, as opposed to a

site-specific approach, in order to

minimize the burden on States for

permitting new facilities. EPA invites

comment again on its estimates of the

cost to States to implement the

proposed requirements (See #1–5067–

PR, Information Collection Request for

Cooling Water Intake Structures New

Facility Proposed Rule, Chapter 6), and

acknowledges that these costs may

change based on any changes in the

final regulations.

2–034A Sarbello, Bill, NYDEC. Memo to

J.T. Morgan, EPA RE: Costs Associated

with 316(b) Permitting Activities in NY

State. February 26, 2001.

2–034B Reading, Jeffrey, NJDEP. Letter to

Sheila Frace, EPA RE: Request for

Information Regarding Staffing and

Resources Required in Applying Section

316(b). April 24, 2001.

5. Recently-Constructed Facilities

Already Implementing the Proposed

New Facility Requirements

To estimate the percentage of

manufacturers, utilities and nonutilities

constructed in the last fifteen (15) years

that meet various proposed

requirements for cooling water intake

structure technology, EPA performed an

analysis using detailed questionnaire

data. These preliminary data indicate

that 47% of the recently-constructed

manufacturers, 42% of the recentlyconstructed nonutilities, and 53% of the

recently-constructed utilities meet the

proposed requirement to install

additional design and construction

technologies such as a traveling screen

with a fish return system, a wedge wire

screen, or a fine mesh screen with a fish

return system. (see #2–035A in the

Docket).

EPA performed a similar analysis of

the detailed questionnaire data to

estimate what percentage of in-scope

facilities constructed during the last 15

years meet the proposed requirement for

reducing intake flow to a level

commensurate with use of a

recirculating cooling water system.

These preliminary data show that 38%

of the manufacturing facilities, 66% of

the nonutility facilities, and 70% of the

utility facilities have closed-cycle,

recirculating cooling systems. (see #2–

035B in the Docket). EPA is now

working to verify the accuracy of these

estimates as they appear to be lower

than the estimated percentages in the

record at proposal based on information

from DOE’s Energy Information Agency

and RDI’s NEWGen database.

Finally, EPA analyzed the detailed

questionnaire data to estimate what

percentage of the in-scope

manufacturing, utility and nonutility

facilities constructed in the last 15 years

meet all three of the proposed

28866 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

requirements for: (1) Reducing intake

capacity to a level commensurate with

use of a closed-cycle recirculating

cooling system: (2) reducing intake

velocity to no more than 0.5 ft/sec; and

(3) developing a plan and installing

additional design and construction

technologies. The analysis shows that

16% of these manufacturers, 31% of

these nonutilities, and 44% of these

utilities meet all three performance and

technology standards. (see #2–035C in

the Docket). Based on these data, EPA

is considering and invites comment on

whether it is reasonable for new

facilities to meet these proposed

standards.

G. Revision in Costing and Energy

Impacts Estimates

1. Energy Consumption Associated With

Alternative Cooling Systems

At proposal, EPA invited comment on

a regulatory alternative that would

require zero or extremely low intake

flow commensurate with levels

achievable through the use of drycooling systems. EPA discussed and

invited comment on a number of issues

including any potential energy penalty

at new facilities using dry-cooling

systems.

Alternatives to conventional wet

cooling towers or once-through systems

are often described as dry cooling

systems but, in fact, may include hybrid

wet-dry cooling systems. These

alternative cooling systems may be less

efficient in rejecting heat than

conventional wet cooling towers or

once-through systems. Alternative

cooling systems generally have higher

parasitic (fan) electrical loads and can

create a higher pressure (temperature) in

the steam turbine condenser. Both of

these factors can decrease the thermal

efficiency and power output of the

plant. Estimating the nature of this

penalty is difficult given that the facility

could be designed and operated in a

variety of ways using one of these

alternative cooling technologies. As

discussed at proposal, climactic

conditions may significantly influence

the efficiency of alternative cooling

systems (see 65 FR 49081). For instance,

dry cooling systems can be less efficient

during warmer periods than during

cooler periods.

At proposal, EPA’s discussion of

energy inefficiency due to cooling

requirements focused on energy

penalties associated with the operation

of dry cooling systems. Since proposal,

EPA has sought out information

measuring and/or estimating

comparable efficiencies of cooling

towers (wet, dry, and hybrid) to oncethrough cooling systems. EPA

discovered some additional information

comparing dry and hybrid cooling

towers to wet cooling towers and

obtained a limited amount of

information on the topic through public

comment. EPA invites comments on the

following new data (see #2–036A–D in

the Docket):

2–036A Pryor, Marc. ‘‘Supplemental

Testimony to the La Paloma Generating

Project (98–AFC–2) Final Staff Assessment.

California Energy Commission. April 20,

1999.

2–036B Western Area Power Administration

Sierra Nevada Region Sutter Power Plant.

‘‘Summary of the Presiding Members

Proposed Decision on Other Commission

Decisions’’, Chapter 3. April 1999.

2–036C SAIC. Memo to File RE: Steam Plant

Energy Penalty Evaluation. April 20, 2001.

2–036D Edison Electric Institute.

Environmental Directory of Power Plants.

1996

EPA intends to revise the operation

and maintenance costs of its estimates

for wet and dry cooling towers to

include the marginal cost of energy

penalties. EPA intends to estimate any

energy penalties as compared to cooling

systems that new facilities would be

likely to install absent final regulations.

When EPA projects that a facility would

switch from a once-through cooling

system to a closed-cycle cooling system

employing a wet cooling tower to

comply with final regulations, EPA will

estimate the energy penalty based on

values derived from documents already

in the record, the new materials

referenced above, and similar sources of

information. To project the energy

penalty of dry cooling systems

compared to once-through cooling

systems, EPA will use its estimate of the

energy penalty of a closed-cycle cooling

system employing a wet cooling tower,

then estimate any additional energy

penalty imposed by use of a dry cooling

system based on documents already in

the record, the new materials referenced

above, and similar sources of

information. To project the energy

penalty of dry cooling towers compared

to a closed-cycle cooling system

employing a wet cooling tower, EPA

will estimate the energy penalty based

on documents already in the record, the

new materials referenced, and other

relevant sources of information.

2. Specific Revisions to Inputs to

Costing Model for Wet Cooling Towers

and Dry Cooling Systems

Some public comments on the

proposed regulations assert that EPA’s

annual cost estimates for wet cooling

towers did not include essential

components such as wiring,

foundations, condenser pumps, and

noise attenuation treatment. EPA did

not separately identify these items in

the estimates presented at the time of

proposal because the Agency used

empirical models based on actual

construction project costs to verify its

costing estimates. These empirical

models represent the cost to the plant

and include all essential components.

However, to further document the

annual costs that EPA used in its cost

estimates for wet cooling towers, EPA

requests comment on the new data in

EPA’s April 23, 2001 memorandum

titled, ‘‘Supporting Documentation for

Unit Costs’’ contained in #2–037 of the

Docket.

Since proposal, EPA collected

additional project cost information to

verify its empirical cost models. EPA

requests comment on the capital cost

information contained in #2–037 of the

Docket.

Based on literature and vendor

information, EPA’s proposal estimated a

10 degree Fahrenheit design approach

value for wet cooling towers. EPA

requests comment on information

contained in #2–037 of the Docket in

support of this value.

EPA proposed that operation and

maintenance (O&M) costs of wet cooling

towers reflect an ‘‘economy of scale’’

with increasing size. Therefore, in some

cases, as the size of the cooling tower

increases, O&M costs decrease per unit

of water cooled. EPA is supplementing

the record to support its assumption

that there are ‘‘economies of scale’’

based on comments received on the

proposal. EPA has placed information in

the record to support EPA’s

methodology for calculating O&M costs

for wet cooling towers (see #2–037 in

the Docket).

At proposal, EPA assumed that some

new facilities would use once-through

cooling systems absent final regulations

and would switch to a closed-cycle

cooling system employing a wet cooling

tower. In these cases, EPA costed the

water flow used in the recirculating

cooling tower as 15 percent of the

original flow. EPA acknowledges that

this assumption does not match

standard industry design practice. EPA

intends to revise its estimates of

recirculating flow upward based on the

entire flow of cooling water through the

cooling tower and will size and cost the

recirculating pumps accordingly.

EPA’s proposed wet cooling tower

costs may have included elevated

capital costs due to a design estimate

that plume abatement would be applied

at a large proportion of the cooling

towers built as a result of the

regulations. Since proposal, EPA sought

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28867

additional information regarding

industry practice for wet cooling tower

construction and the use of plume

abatement. Through vendor contact,

EPA learned that wet cooling towers

generally do not incorporate plume

abatement technologies. Therefore, EPA

intends to revise its wet cooling tower

estimates to reflect a reduced

implementation of plume abatement

techniques. EPA also intends to study

the sensitivity of costs with respect to

this aspect of its cost estimates. (See #2–

037 in the Docket.)

At proposal, EPA estimated the

marginal annual cost of dry cooling

towers over once-through cooling

systems but did not explain its

methodology for estimating the capital

and O&M costs of dry cooling towers.

EPA invites comment on the

information the Agency used to estimate

annual costs of dry cooling towers

placed in the record. (See #2–037 in the

Docket.)

EPA obtained further information

relating to the capital cost of dry cooling

towers since proposal. The Agency

invited comment on the following

information:

2–037 EPA. Memo to File RE: Supporting

Documentation for Unit Cost Analysis.

April 23, 2001.

In addition, EPA invites comment on

the following documents:

2–036A Pryor, Marc. Supplemental

Testimony to the La Paloma Generating

Project (98–AFC–2) Final Staff Assessment.

California Energy Commission. April

20,1999.

2–036B Western Area Power

Administration Sierra Nevada Region

Sutter Power Plant. Summary of the

Presiding Members Proposed Decision on

Other Commission Decisions, Chapter 3.

April 1999.

EPA also obtained information on the

cost of dry cooling systems through

public comment. Cost information, as

well as general comments received on

dry cooling are included in the public

record: (See #2–038A–B in the Docket.)

2–038A Dougherty, Bill. Comments on the

EPA’s Proposed Regulations on Cooling

Water Intake Structures for New Facilities.

Tellus Institute. November 8, 2000.

2–038B Burns Engineering Services, Inc.

and Wayne C. Micheletti, Inc. Comparison

of Wet and Dry Cooling Systems for

Combined Cycle Power Plants. November

4, 2000.

2–038C Public Comments on Dry Cooling in

Response to Proposed Rule of August 10,

2000.

3. Other Environmental Impacts

EPA discussed the water quality and

non-water quality impacts of cooling

towers (both wet and dry) at proposal

(see 65 FR 49075 and 65 FR 49081).

However, EPA did not quantify all

impacts that may result from

implementation of the rule. For the final

rule, EPA intends to estimate, to the

extent possible, the marginal increases

in emissions of air pollutants associated

with wet and dry cooling towers. The

Agency intends to compare projected

emissions under the rule to projected

emissions absent the rule. (At proposal,

EPA projected that, regardless of the

outcome of the rule (that is, absent these

regulations) a majority of units would

have wet cooling towers and a minority

would have once-through or dry cooling

systems.)

EPA may estimate air emissions using

the permit application calculations

required by the Colorado Department of

Public Health and Environment

(CDPHE), Colorado Air Pollution

Control Division, Stationary Sources

Program. This program requires

emissions estimates for new power

generating permits according to the

codified guidance at 40 CFR chapter 1,

appendix W to part 51 (July 1, 1999).

The technique would use emissions

factors from the Compilation of Air

Pollutant Emission Factors, Volume I

(AP–42) for stationary turbines and

derive estimates of pollutant emissions

for each type of unit. EPA would adjust

the emissions estimates, when

appropriate, to reflect a marginal

comparison by using energy penalty

estimates. For example, in the case

where EPA examines any increase in

emissions of air pollutants due to dry

cooling, it would base this estimate on

a calculation of any energy penalty

associated with dry cooling as compared

to energy use at plants projected to

install wet closed-cycle cooling systems

or once-through cooling systems absent

these regulations. EPA expects that a

small fraction of facilities would not

experience any increased air pollutant

emissions because that they are

projected to use dry cooling, regardless

of the outcome of the rule.

Alternatively, EPA may estimate air

emissions using the Emissions &

Generation Resource Integrated

Database (E–GRID2000). This database

integrates data from 18 different federal

sources and provides emissions and

resource mix data for every plant,

electric generating company, state and

region in the country. From E-Grid

2000, EPA may generate an emission

rate per MWh or loaded hour for NOX,

SO2, CO2, and Hg to estimate increased

emissions at plants that consume

additional fuel because they install a

wet or dry cooling tower to comply with

final regulations. Such an analysis

would presume that an individual plant

increase its loading in order to meet this

energy cost as opposed to delivering less

power to the grid which in turn would

be made up by a different plant.

The following references are included

in the record for public review. (See #2–

039A–C in the Docket.)

2–039A Kendal, Ashley L. Technical

Review Document Operating Permit

960PMR153. March 16, 1998.

2–039B 40 CFR Ch.1 (7–1–99 Edition). Pt.

51, App. W. Pages 390–481.

2–039C EPA. AP–42, Fifth Edition, Volume

1 [Section 3.1]. April 2000. (Available at:

http://www.epa.gov/ttn/chief/ap42.)

4. Baseline Biological Characterization

Study and Impingement and

Entrainment Monitoring During the

Permit Term

EPA’s proposed regulations would

require a permit applicant to complete

a ‘‘source water baseline biological

characterization’’ based on at least one

year of pre-operational biological

monitoring (proposed 40 CFR. 125.86).

The applicant would use this

information to develop a plan for

installing additional design and

construction technologies (such as

screens, or barrier nets, or well-designed

return systems for impinged fish). This

information would also support the

permitting agency (in most cases, a

State) in considering whether sitespecific conditions warrant more than

the baseline regulatory protections (see

proposed 40 CFR 125.84(f) and (g)). The

proposed regulations would also require

permittees to conduct impingement

monitoring over a 24-hour period once

per month during the first two years of

the permit and to conduct entrainment

monitoring over a 24-hour period no

less than biweekly during the period of

peak reproduction and larval

abundance. After two years, the

permitting agency could reduce

impingement and entrainment

monitoring frequency in the remaining

permit term and when the permit is

reissued (proposed 40 CFR 125.87).

The July 2000 ‘‘Information Collection

Request for Cooling Water Intake

Structures New Facility Proposed Rule’’

(ICR) estimated costs for the

Sourcewater Baseline Characterization

Activities and for entrainment and

impingement monitoring based on

Bureau of Labor Statistics base wage

rates multiplied by time spent in each

labor category. Direct Labor Costs and

Operation and Maintenance Costs were

added to estimate the burden and costs

per facility. The ICR states that the

Sourcewater Baseline Characterization

costs would include $19,500 for

contracted laboratory assistance with

monitoring, taxonomy and data

28868 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

tabulation (plus $500 for other direct

costs (ODCs)). Similarly, text in the ICR

states that contracted lab costs for

entrainment and impingement

monitoring would amount to $19,500

and $4,580, respectively (plus $500 in

ODCs). Tables 7 and 8 of the ICR

indicate that the Sourcewater Baseline

Characterization would cost each

facility $11,655 in labor and $750 in

ODCs; entrainment monitoring would

cost $14,675 in labor and $4,000 for

ODCs; and impingement monitoring

would cost $6,736 labor plus $2,000

ODCs. However, the contracted

laboratory costs discussed in the text of

the ICR are not included in these tables.

Thus, to eliminate confusion about

EPA’s estimated costs for biological

monitoring in the ICR, the Agency states

that it used the following cost estimates

at proposal: approximately $32,000 for

Sourcewater Baseline Characterization

per facility; approximately $38,000

annually for entrainment monitoring per

facility; and approximately $13,000

annually for impingement monitoring

per facility. These costs were considered

an average cost for all types of

waterbodies combined.

EPA received comment from several

commenters, including UWAG and

EPRI, asserting that EPA’s proposal

underestimated the costs of biological

monitoring (see UWAG comments at W–

00–03, 316(b) Comments 1.68 and

EPRI’s comments at W–00–03, 316(b)

Comments 1.56). As discussed in the

memorandum, ‘‘316(b) Monitoring Cost

Estimates for New Facilities,’’ EPA has

refined its cost estimates and believes it

should use cost ranges that, for the

sourcewater baseline characterization

and entrainment monitoring, vary for

different types of waterbodies. EPA

invites comment on the following

revised cost estimates. (See #2–040 in

the Docket.)

• Sourcewater Baseline

Characterization: $8,000 to 25,000 for a

freshwater stream/river; $8,000 to

35,000 for a lake/reservoir; $8,000 to

50,000 for an estuary/tidal river; and

$8,000 to 70,000 for an ocean.

• Biological Monitoring—

Entrainment: $15,000 to 40,000 for a

freshwater stream/river; $15,000 to

40,000 for a lake/reservoir; $20,000 to

50,000 for an estuary/tidal river; and

$20,000 to 50,000 for an ocean.

• Biological Monitoring—

Impingement: $10,000 to 25,000 for a

freshwater stream/river, a lake/reservoir,

an estuary/tidal river and an ocean.

To develop these cost estimates, the

Agency consulted biological monitoring

practitioners who conduct

impingement, entrainment and other

types of biological monitoring studies.

These revised estimates reflect that the

equipment, effort and expertise needed

to sample an ocean facility, for example,

would be more costly than that needed

to monitor a facility located on a stream

or small river.

EPA received comment asserting that

a one-year sourcewater biological

characterization would provide

information of limited utility,

particularly in estuarine and coastal

areas where fish populations exhibit

tremendous inter-annual variability (see

EPRI comments at W–00–03, 316(b)

Comments 1.56 in the Docket). Among

other concerns, this commenter asserted

that the baseline year may not represent

average population characteristics. In

response to these comments, EPA

invites comment on the documents

located in #2–041 in the Docket. This

information generally supports the

assertion that a multi-year baseline

reduces the confounding effect of yearrelated phenomenon on assessments

and (see EPA 1990, referenced below)

provides a better basis for evaluating

management actions:

2–041A Meador, M.R., T.F. Cuffney and

M.E., Gurtz. Methods for sampling fish

communities as a part of the National

Water Quality Assessment Program. U.S.

Geological Survey Open-File Report 93–

104. Raleigh, North Carolina. 40p. 1993.

2–041B Leahy, P.P., J.S. Rosenshein, and

D.S. Knopman. Implementation plan for

the National Water Quality Assessment

Program. U.S. Geological Society. OpenFile Report 90–174, 10 p. 1990.

2–041C Holland, A.F. (ed)., EPA.

Environmental Monitoring and Assessment

Program-Near Coastal Program Plan for

1990: Estuaries, Chapter 2. 1990.

EPA is considering and invites comment

on whether it should extend the time

period for the baseline biological

characterization study for tidal rivers,

estuaries, and oceans to address interannual variability of fish populations in

these areas.

H. Industry Approach

• Fast-Track Alternative

In comments on the proposed

regulations and in other materials EPA

recently received, the Utility Water Act

Group (UWAG), an industry trade

association, has suggested that EPA

consider an alternative based on several

of the regulatory alternatives EPA

described at proposal (see UWAG. Email

to EPA RE: Brief Description of a Twotrack Process. April 12, 2001, in #2–042

in the Docket). Under this approach, a

company seeking to build a new facility

could pursue one of two tracks: either

(1) to commit to one or more of a

number of specified technologies

deemed to represent highly protective

technology at the outset or (2) to engage

in a site-specific study to determine the

best technology available (BTA) for the

site.

Under Track 1 (the ‘‘fast track’’), an

applicant would commit to install

highly protective technologies in return

for expedited permitting without the

need for pre-operational or operational

studies in the source waterbody. Such

fast-track technologies might include:

1. Any technologies that limit intake

flow to the flow that would be required

by wet closed-cycle cooling at that site

and that has an average approach

velocity (measured in front of the

cooling screens or the opening to the

cooling water intake structure) of no

more than 0.5 fps; or

2. Any technologies that will achieve

a level of protection from impingement

and/or entrainment that is within the

range expected under Option 1 for

closed-cycle cooling (with 0.5 fps

approach velocity) on the type of

waterbody where the facility is to be

located. This option is intended to allow

facilities to use either standard

technologies, or new ones, that have

been demonstrated to be effective for the

species, type of waterbody, and flow

volume of the cooling water intake

structure proposed for their use.

Examples of candidate technologies

would include:

a. Wedgewire screens where there is

constant flow, as in rivers;

b. Traveling fine mesh screens with a

fish return system designed to minimize

entrainment and impingement

mortality; and

c. Gunderbooms at sites where they

would not be rendered ineffective by

high flows or fouling.

If the operator of a new facility chose to

install such highly protective intake

technologies and validated their

performance, as necessary, the

permitting agency would not require

additional section 316(b) protective

measures for the life of the facility,

unless EPA established different

technology requirements by rulemaking.

UWAG believes that the record

developed to date indicates that the

combination of flows associated with

closed-cycle cooling and low intake

velocity reduce entrainment and

impingement mortality to such low

levels that adverse environmental

impact (‘‘AEI’’) is avoided thereby not

just meeting, but exceeding the section

316(b) standard of protection. UWAG

also believes that information in the

record and additional materials

described in Section H.2. below

demonstrates that other technologies,

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28869

2 In this case, a facility would not require

entrainment assessment if it withdrew 5% or less

of the low flow condition that is exceeded in a river

at least 90% of the time.

including those above, when used

properly, may provide a level of

protection within the same range and

thus would also be highly protective of

aquatic resources.

Closed-cycle cooling and extremely

low approach velocities have been used

to avoid levels of entrainment and

impingement mortality that could cause

adverse environmental impact.

Nevertheless, UWAG states that some

interested parties have argued that EPA

cannot support a finding that such

technologies constitute BTA due to

factors such as very high capital and

other costs compared to environmental

benefits, cross-media effects, sitespecific factors (such as land constraints

or habitat or air emissions concerns), or

jurisdictional issues regarding cooling

towers (which some commenters argue

are part of the cooling system, not

‘‘intake structure’’ technologies). These

stakeholders argued that such low flows

and velocities are far more conservative

than needed to meet the statutory

standard of ‘‘best technology available

to minimize adverse environmental

impact.’’ This objection would be beside

the point under this alternative, because

EPA would not define these

technologies as BTA for ‘‘minimizing’’

adverse environmental impact but

instead determine that they avoid

adverse environmental impact

altogether. Using this approach, the

final rule would reflect EPA’s

determination that, where the permittee

proposes to use a demonstrated

technology that meets the above criteria,

the technology would, in almost every

case, avoid adverse environmental

impact and exceed the requirements of

section 316(b). UWAG believes that

financing issues associated with

uncertainty and delay during periods of

pre-permitting biological study

(described in Section H.3 below) would

make the fast-track option highly

desirable for many new facility

applicants who otherwise might face

significant difficulties that are building

new facilities that are urgently needed

to meet increased demand for

electricity.

UWAG also suggested that, in

conjunction with its fast-track

alternative, EPA should use a similar

approach to encourage rather than

foreclose alternative or innovative

intake structure technologies that

provide a level of protection reasonably

consistent with the criteria established

above. If a proponent of a new facility

knows of an alternative technology but

cannot try it without extensive preoperational site-specific studies, he or

she may not be inclined to take the risk

of developing the new technology. To

remove this disincentive, EPA could

allow expedited permitting when an

applicant can demonstrate, as part of its

permit application, that the intake

structure technology it proposes will

achieve a level of protection reasonably

consistent with the criteria established

in Option 1 above. Such a

demonstration would not require source

waterbody studies. It might instead be

based on successful use of the

innovative technology at a comparable

site or successful testing in a laboratory

or a pilot-scale trial. Some monitoring

after the facility begins operating may be

appropriate to validate the design

performance of alternative technologies.

In addition, UWAG suggests that, as

part of this approach, EPA could in the

future approve additional, alternative

‘‘fast-track’’ technologies based on

accumulated experience. There could

potentially be unusual species-specific

circumstances in which fast-track

technologies meeting the above criteria

would not be sufficient to avoid adverse

environmental impact. While, in

UWAG’s view, the number of such sites

will be very small, the rule could

nevertheless give permit writers the

authority to require additional

protective technology if the permitting

agency has information that exceptional

conditions exist such that, even with

fast-track technology, the proposed

facility would adversely impact a

representative indicator species in a

way that other federal or state

requirements, such as the Endangered

Species Act, would not prevent. EPA

invites comments on those proposals as

well.

Track 2 of the industry approach

would be for facilities and sites for

which the applicant does not want to

commit to any of the above technology

options but believes that a close look at

site characteristics, including the local

biology, would justify another intake

technology, such as once-through

cooling. For these situations, the

applicant could demonstrate to the

permitting agency, based on site-specific

studies, either that the proposed intake

would not create an appreciable risk of

adverse environmental impact or, if it

would create an appreciable risk of

adverse environmental impact, that the

applicant would install technology to

‘‘minimize’’ adverse environmental

impact. Such demonstrations would

recognize that some entrainment and

impingement mortality can occur

without creating ‘‘adverse

environmental impact,’’ but, where

there was an appreciable risk of adverse

environmental impact, the technology

that would ‘‘minimize’’ it would also be

the technology that maximized net

benefits. If the proposed intake created

an appreciable risk of adverse

environmental impact, the applicant

would have to identify all reasonably

available intake structure technologies

that would reduce the impact to the

aquatic community and that would be

feasible for the site. The applicant

would also estimate both the costs and

benefits of each such technology,

including the impacts of the cooling

water intake structure on aquatic biota,

as well as the monetary costs of

construction and operation, energy

costs, and environmental costs such as

air pollution, aesthetics, and land use.

Summing the costs and benefits for each

‘‘available’’ technology, the permittee

would choose as ‘‘best’’ the one that had

the highest net benefit. Industry asserts

that efficient methods for assessing costs

and benefits, based on a variety of

federal precedents, might be developed

to determine the net benefits without

undue delay or uncertainty. Industry

did not specify what federal precedents

or methods for assessing benefits would

be applied.

Under the industry approach, the

second track would not require the same

type or intensity of study for every site

or every proposed plant design. In

designing a Track 2 study to determine

whether there is an appreciable risk of

adverse environmental impact and, if

so, what will ‘‘minimize’’ it, the

applicant and permitting agency could

apply a series of tests to focus the study.

First, no further study would be

necessary if the intake draws its water

from an area not designated for

protection of fish or aquatic life (in

accordance with the requirements of 40

CFR part 131) or an area that does not

support or could not support vulnerable

life stages of representative indicator

species due to lack of dissolved oxygen

or for other reasons. Second, an intake

structure would not have to be assessed

for entrainment if it withdraws an

amount no greater than a given

percentage of the source waterbody that

has proven to be extremely

conservative. (UWAG asserts that some

interested parties have suggested a value

of 5% or less of the 90% exceedance

flow of a river 2 or 5% or less of the

volume of the biological zone of

influence in a lake or reservoir,

measured when entrainable life stages of

representative indicator species are

present.) Third, the proposed facility

would not have to be assessed for

entrainment if it were designed to

28870 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

ensure that entrainment losses of

equivalent adults would be less than a

value that has generally proven to be

highly conservative or not inconsistent

with fishery management plans. (Some

interested parties, UWAG asserts, have

suggested values equal to or less than

1% of the population of any

commercially or recreationally

important species and equal to or less

than 5% of the population of nonharvested species.) The permitting

agency would consider survival rates for

entrained representative indicator

species in applying this test.

Under the industry-suggested Track 2

approach, some proposed new facilities

might be able to use the Track 2 tests to

show that they would not cause adverse

environmental impact and, therefore,

would need no further analysis. Others

might find that the Track 2 tests

eliminated from concern some risks

(entrainment, for example) or some

species. For these proposed facilities,

once the necessary studies had been

focused by the Track 2 tests, the

applicant would assess the likelihood

that the intake would cause an

appreciable risk of adverse

environmental impact. They would use

a process like that outlined in EPA’s

Ecological Risk Assessment Guidelines

(see #2–020D in the docket), using

biological, locational, design, and

operational data from the site. If the

study showed an appreciable risk of

adverse environmental impact, then the

applicant would be obligated to identify

all reasonably available technologies

that would be feasible at the site. It

would then perform the cost-benefit

analysis described above to determine

which technology would maximize net

benefits. EPA requests comment on this

approach.

In considering the industry approach,

EPA also solicits comment on the

following potential modifications. EPA

is considering a fast-track approach that

would be based on a commitment by the

facility to employ a suite of technologies

that would be determined to represent

BTA for the fast-track option. The

technologies under consideration are:

reduction in capacity commensurate

with that achievable by use of a closedcycle cooling system; a velocity

limitation of less than or equal to 0.5 ft/

sec; and location where intake capacity

would be no more 5% of the mean

annual flow or 25% of the 7Q10 flow of

a freshwater stream or river, no more

than 1% of the tidal excursion volume

of a tidal river or estuary, or where the

intake capacity would not disrupt the

natural stratification and turnover

patterns of a lake or reservoir. EPA is

also considering designating the

following two additional design and

construction technologies as part of a

fast-track, BTA suite of technologies: a

fine mesh traveling screen with a fish

return system, variable speed pumps

and a low pressure spray; or a

submerged wedgewire fine mesh screen.

(By contrast, industry’s suggested

approach would be that in order to

qualify for fast track permitting,

facilities would commit to either low

velocity, closed-cycle cooling or a oncethrough cooling system with an intake

equipped with one of a number of other

technologies, e.g., wedge wire screens,

fine mesh traveling screens with a fish

return system, or Gunderbooms, based

on a determination in the final rule that

these other technologies may be as

effective as closed-cycle cooling with a

velocity limit of 0.5 ft/sec for purposes

of reducing impingement and

entrainment for the species, type of

waterbody, and flow volume of the

cooling water intake structure proposed

for their use.)

Under the modification EPA is

considering, the fast-track technologies

and performance standards would

reflect levels that some newer facilities

have achieved. Based on data on

existing facilities in the record at

proposal, EPA estimates that almost all

new facilities are likely to meet the

proposed proportional flow standard for

freshwater rivers (total intake flow less

than 5% of mean annual flow or 25%

of the low flow that occurs over a oneweek period no more than once every 10

years) and for estuaries and tidal rivers

(total intake flow no greater than one

percent of the volume of the water

column within the area centered about

the opening of the intake with a

diameter defined by the distance of one

tidal excursion at the mean low water

level). As discussed at Section F.5

above, 16% of the manufacturing, 31%

of the nonutility and 44% of the utility

facilities constructed in the last 15 years

meet all three of the proposed

requirements for: (1) Reducing intake

capacity to a level commensurate with

use of a closed-cycle recirculating

cooling system; (2) reducing intake

velocity to no more than 0.5 ft/sec; and

(3) developing a plan and installing

additional design and construction

technologies. (See #2–035C in the

Docket). Under this approach, EPA

would define these technologies as BTA

for the fast-track option.

Other alternatives for fast-track

technologies include:

• Dry cooling, either at all locations

or in certain waterbodies determined to

be particularly sensitive to impacts from

cooling water intake structures, or in

certain regions in the country where dry

cooling is demonstrated, or at certain

sizes of facilities where dry cooling is

particularly well-demonstrated;

• Differing suites of ‘‘fast-track’’

technologies based on the type of

waterbody or the facility’s location

within a waterbody (e.g., adding

additional fast-track technologies in

tidal rivers and estuaries over those

required in the parts of oceans,

freshwater rivers and streams, and lakes

and reservoirs that may be designated as

less sensitive than other parts of these

areas).

EPA also invites comment on other

possible modifications to the industry

fast-track option:

• EPA is considering a modification

where limited pre-operational

monitoring would be required. Under

this approach, the planned facility

would be required to monitor at the

proposed site during the time of year of

highest egg and larval abundance,

which should correspond to the peak

period for impingement and

entrainment vulnerability. To the extent

that the proposed year-long timeframe

for pre-operational monitoring could

result in significant delay in building a

new facility, this modification might

reduce those delays for some or many

facilities. However, EPA recognizes that,

depending on construction schedules

and how they relate to the time of year

when monitoring would be required this

modification could limit the usefulness

of the fast track approach for some new

facilities.

• EPA is considering a modification

where the permit would contain some

or all of the proposed operational

monitoring requirements at proposed 40

CFR 125.87, 65 FR 49121 or a reduced

frequency of operational monitoring

requirements.

• EPA is considering a modification

where the permitting authority (most

often a State) would retain authority to

revisit section 316(b) requirements at

permit renewal based on the facility’s

impingement and entrainment

monitoring data or other new

information (see proposed 40 CFR

125.84(f) and 40 CFR 125.84(g)).

• EPA is considering a modification

where the Director (usually, a State

official) could require pre-operational

studies under circumstances similar to

those described in proposed 40 CFR

125.84(f), 65 FR 49119, and/or proposed

40 CFR 125.84(g), 65 FR 49119 or at the

Director’s discretion. For example, the

Director might require pre-operational

monitoring if he or she determines it is

reasonably necessary as a result of the

effects of multiple cooling water intake

structures in the same body of water (40

CFR 125.84(f) or it is reasonably

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28871

necessary to ensure attainment of water

quality standards (40 CFR 125.84(g)).

EPA is also considering and invites

comment on the following

modifications to the industry’s Track 2

option:

• EPA is considering a modification

where, in all but exceptional or unusual

circumstances (e.g., where a State or

Tribe has designated a waterbody as

having no use for supporting the

propagation or maintenance of aquatic

life and EPA has approved the revised

use). A Track 2 facility would need to

conduct a site-specific study that, at a

minimum, meets the proposed

requirements for a one-year source

water baseline biological

characterization at proposed 40 CFR

125.86 or, alternatively, for oceans, tidal

rivers and estuaries, a longer study

period might be required as discussed at

Section G.4.

• Under the industry approach, an

intake structure would not have to be

assessed for entrainment if it withdraws

an amount no greater than a given

percentage of the source waterbody. The

industry approach suggests a value of

5% or less of the 90% exceedance flow

of a river or 5% or less of the volume

of the biological zone of influence in a

lake or reservoir, measured when

entrainable life stages of representative

indicator species are present. EPA is

analyzing these proposed screening

criteria at one location. As discussed in

an EPA Memorandum to the Record

titled ‘‘Utilities Proposal Re: Assessment

for Entrainment,’’ April 19 2001 (see

Docket #2–043 in the Docket), at one

location for which data are readily

available, the threshold proposed by

industry for entrainment assessment in

rivers would equal about 40% of the

maximum allowable intake flow that

EPA proposed. EPA is considering the

industry approach and a modification

where an applicant would not have to

assess potential entrainment impact if

an intake structure withdrew a

proportion of waterbody flow or volume

significantly less than any final

limitations for proportional flow, such

as those at proposed 40 CFR 125.84.

(EPA proposed that a facility withdraw

no more than 5% of the mean annual

flow or 25% of the 7Q10 flow of a

freshwater river or stream. For tidal

rivers and estuaries, a facility could

withdraw no more than 1% of the

volume of the water column within the

area centered about the opening of the

intake with a diameter defined by the

distance of one tidal excursion at the

mean low water level.) EPA invites

comment on potential screening levels

for entrainment assessment. EPA is

currently considering screening levels

between 1% and 50% of any final

proportional flow limitations, but

invites comment on other levels as well.

To address concerns that a very large

facility on a large waterbody might

entrain a large number of aquatic

organisms, EPA also invites comment

on a possible screening level for

entrainment assessment based on the

total intake flow at a facility. EPA is

currently considering a range of 2 MGD

(equivalent to EPA’s proposed

regulatory threshold) to 15 or 25 MGD,

but invites comments on other levels.

Section A above provides perspective

on the percentage of facilities and flows

that would require entrainment

assessment at these thresholds. EPA has

not yet analyzed industry’s suggested

screening threshold for entrainment

assessment in lakes and reservoirs. The

Agency invites comment on whether

this is a reasonable threshold, and on

other potential screening thresholds for

lakes and reservoirs, or other

waterbodies such as estuaries, tidal

rivers and oceans.

• Under the industry approach, a

proposed facility would not be assessed

for entrainment unless it exceeded both

a flow-based threshold and a

population-based threshold (see

previous bullet for discussion of the

flow-based threshold). The populationbased threshold would be designed to

ensure that entrainment losses of

equivalent adults would be less than a

value that, in industry’s view, has

generally proven to be highly

conservative or not inconsistent with

fishery management plans. Industry

states that some interested parties have

suggested values equal to or less than

1% of the population of any

commercially or recreationally

important species and equal to or less

than 5% of the population of nonharvested species. EPA requests

comment on a modification that would

require that entrainment should be

assessed if it exceeds either a flow-based

threshold, or a threshold based on

equivalent-adult losses. EPA is also

considering a modification that would

require entrainment assessment above a

threshold as low as 1% or as high as

50% of those organisms that occupy or

pass-through the area from which

source water moves into the intake.

Alternatively, EPA might use concepts

from the 1977 Draft Guidance for

Evaluating the Adverse Impact of

Cooling Water Intake Structures on the

Aquatic Environment to focus

entrainment assessment on potential

impact on organisms in the ‘‘primary

study area,’’ ‘‘the secondary study area,’’

or the ‘‘zone of potential involvement.’’

(These are areas where biota may be

drawn into or affected by a cooling

water intake structure.) EPA requests

comment on the use of any of these

definitions from its 1977 Guidance to

define areas for which entrainment

assessments would be required. EPA is

currently considering a range of 1% to

5% as a quantitative screening

requirement in conjunction with any of

these definitions, but invites comment

on percentages outside of this range.

• Under the industry approach, if a

Track 2 site-specific study showed an

appreciable risk of adverse

environmental impact, the applicant

would have to identify all reasonably

available technologies that would be

feasible at the site. It would then

perform the cost-benefit analysis to

determine which technology would

‘‘maximize net benefits.’’ The industry

approach does not define how to

maximize net benefits. However,

industry comments suggest an approach

that would involve determining

applicable fish protection alternatives,

assessing their incremental monetary

costs and benefits to the extent feasible,

major uncertainties in the analysis, and

whether relevant costs or benefits have

not been quantified. The applicant

would then develop a BTA choice that

is likely to maximize net benefits in that

particular case. EPA invites comment on

whether it would be appropriate to

ensure that such site-specific costbenefit studies include assessment of

the following categories of data and

ecological risks and benefits: numbers of

individuals of various species and ageclasses impinged and entrained for each

technology alternative; commercial or

recreational fishing opportunities

enhanced or foregone; and/or other

categories of benefits such as impact on

other recreational opportunities (e.g.,

birding related to bird populations that

are in part dependent on fish

populations). EPA also invites comment

on whether such studies should be

based upon a single-year or multipleyear baseline. Finally, EPA is

considering other economic analyses

that could support a Track 2 decision on

appropriate technologies and/or

performance standards. The Agency

invites comment on whether it should

use the ‘‘wholly disproportionate’’ costbenefit test that has been previously

used in many case-by-case section

316(b) decisions or one of the economic

affordability tests described at proposal.

28872 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

2. Documentation for the Assertion That

Appropriately Applied Existing

Technologies Can Reduce Fish Losses to

Levels Reasonably Consistent With Wet

Cooling Towers With Low-Velocity

UWAG asserts that, at certain sites

and under certain conditions,

technologies such as wedge wire

screens, fine mesh traveling screens

with a fish return system, and

Gunderbooms can be used at intakes

with a capacity commensurate with

once-through cooling and can reduce

losses from entrainment and

impingement to levels reasonably

consistent with those of an intake

structure with a capacity commensurate

with use of a wet, closed-cycle cooling

system and an intake velocity of no

more than 0.5 feet per second. In the

document, ‘‘Existing Technologies

Which, Appropriately Applied, Can

Reduce Fish Losses to Levels

Reasonably Consistent with Wet Cooling

Towers,’’ April 18, 2001 (see #2–044A

in the Docket), UWAG provides data

that it asserts supports this position.

UWAG also discusses this assertion in

the document ‘‘Reasonably Consistent,’’

April 20, 2001 (see #2–044B in the

Docket). These data and information are

intended to support the alternative

industry approach discussed in section

H.1. of this Notice. EPA is evaluating

the UWAG assertions and will consider

any public comments on them.

3. Financial Issues That Necessitate

Minimal or No Pre-Permit Biological

Study

As discussed in the document,

‘‘Financial Ramifications of Preoperational Biological Monitoring

Requirements’’ (see #2–045 in Docket),

UWAG asserts that delays associated

with EPA’s proposed requirements for

pre-operational biological monitoring

could have significant costs for the

facilities required to conduct such

monitoring. These costs would include

the replacement value for electricity not

generated because new facilities did not

enter the market as quickly as they

might have without the requirement.

UWAG also asserts that these delays

will increase the costs of financing for

a new facility because the lender will be

taking a greater risk over a longer term

for a facility that does not yet have a

permit. EPA solicits comment on

specifically how much the cost of

financing would increase for a new

facility based on such delay and

uncertainty. UWAG further asserts that

the pre-operational biological

monitoring requirement will create an

incentive to build plants that are not

subject to this requirement and its

associated delays and produce more

expensive electricity. These data and

information are intended to support the

alternative industry approach discussed

in Section H.1. of this Notice. EPA is

evaluating and invites public comment

on the UWAG assertions. EPA is very

interested in evaluating any impact

these regulations may have on new

facility construction. EPA invites the

public to provide detailed information

on the extent to which a year-long, preoperational biological monitoring

program might lengthen the timeframes

for new facility development beyond

those normally associated with, for

example, site selection, financing,

construction, local permitting, and

environmental assessments conducted

under other federal, state or local

requirements.

III. General Solicitation of Comment

EPA encourages public participation

in this rulemaking and requests

comments on this notice of data

availability supporting the proposed

rule for cooling water intake structures

for new facilities.

EPA invites all parties to coordinate

their data collection activities with the

Agency to facilitate mutually beneficial

and cost-effective data submissions.

Please refer to the FOR FURTHER

INFORMATION section at the beginning of

this preamble for technical contacts at

EPA.

To ensure that EPA can properly

respond to comments, the Agency

prefers that commenters cite, where

possible, the paragraph(s) or sections in

the document or supporting documents

to which each comment refers. Please

submit an original and two copies of

your comments and enclosures

(including references).

Dated: May 16, 2001.

Diane C. Regas,

Acting Assistant Administrator, Office of

Water.

[FR Doc. 01–13187 Filed 5–24–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Docket No. AK–01–003a; FRL–6986–5]

Clean Air Act Attainment Extension for

the Fairbanks North Star Borough

Carbon Monoxide Nonattainment Area:

Alaska

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: We propose to grant the one

(1) year attainment date extension

request for the Fairbanks North Star

Borough carbon monoxide (CO)

nonattainment area submitted by the

State of Alaska on March 29, 2001. In

the Final Rules section of this Federal

Register, we are approving the State’s

extension request as a direct final rule

without prior proposal because we view

this as a noncontroversial action and

anticipate no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule. If no

adverse comments are received in

response to this action, no further

activity is contemplated in relation to

this rule. If we receive adverse

comments, the direct final rule will be

withdrawn and all public comments

received will be addressed in a

subsequent final rule based on this

proposed rule. We will not institute a

second comment period on this action.

Any parties interested in commenting

on this action should do so at this time.

DATES: Written comments on this

proposed rule must be received on or

before June 25, 2001.

ADDRESSES: Written comments should

be addressed to: Connie Robinson, EPA,

Region 10, Office of Air Quality (OAQ–

107), 1200 Sixth Avenue, Seattle, WA

98101. Copies of documents relevant to

this action are available for public

review during normal business hours

(8:00 a.m. to 4:30 p.m.) at this same

address.

FOR FURTHER INFORMATION CONTACT:

Connie Robinson, EPA, Region 10,

Office of Air Quality, (OAQ–107), 1200

Sixth Avenue, Seattle, WA 98101, (206)

553–1086.

SUPPLEMENTARY INFORMATION: See the

information provided in the Direct Final

action of the same title which is located

in the Rules and Regulations section of

this Federal Register.

Dated: May 16, 2001.

Charles Findley,

Acting Regional Administrator, Region 10.

[FR Doc. 01–13274 Filed 5–24–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

[Docket No. AK–01–002; FRL–6986–6]

Finding of Attainment for Carbon

Monoxide; Anchorage CO

Nonattainment Area, Alaska

AGENCY: Environmental Protection

Agency (EPA).