National Pollutant Discharge Elimination System-Final Regulations To Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 48299-48439 [2014-12164]
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Vol. 79
Friday,
No. 158
August 15, 2014
Part II
Environmental Protection Agency
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40 CFR Parts 122 and 125
National Pollutant Discharge Elimination System—Final Regulations To
Establish Requirements for Cooling Water Intake Structures at Existing
Facilities and Amend Requirements at Phase I Facilities; Final Rule
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 125
[EPA–HQ–OW–2008–0667, FRL–9817–3]
RIN 2040–AE95
National Pollutant Discharge
Elimination System—Final Regulations
To Establish Requirements for Cooling
Water Intake Structures at Existing
Facilities and Amend Requirements at
Phase I Facilities
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The purpose of this action is
to reduce impingement and entrainment
of fish and other aquatic organisms at
cooling water intake structures used by
certain existing power generation and
manufacturing facilities for the
withdrawal of cooling water from waters
of the United States. This rule
establishes requirements under section
316(b) of the Clean Water Act (CWA) for
existing power generating facilities and
existing manufacturing and industrial
facilities that are designed to withdraw
more than 2 million gallons per day
(mgd) of water from waters of the
United States and use at least 25 percent
of the water they withdraw exclusively
for cooling purposes. These national
requirements, which will be
implemented through National
Pollutant Discharge Elimination System
(NPDES) permits, apply to the location,
design, construction, and capacity of
cooling water intake structures (CWIS)
at regulated facilities and provide
requirements that reflect the best
technology available (BTA) for
minimizing adverse environmental
impact. On April 20, 2011, EPA
published a proposed rule that included
several options for addressing these
impacts. Subsequently, EPA published
two Notices of Data Availability
(NODA), on June 11, 2012 and June 12,
2012, that further clarified EPA’s
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SUMMARY:
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proposed approach. This final rule also
responds to judicial remand of aspects
of the previously promulgated Phase II
and Phase III section 316(b) rules. In
addition, EPA is also responding to an
earlier judicial decision by removing
from the previously promulgated Phase
I new facility rule a restoration-based
compliance alternative and the
associated monitoring and
demonstration requirements.
This regulation is effective
October 14, 2014. For judicial review
purposes, this final rule is promulgated
as of 1 p.m. EDT (Eastern Daylight
Time) on August 29, 2014 as provided
in 40 CFR 23.2.
DATES:
EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2008–0667. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
e.g., CBI (confidential business
information) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hardcopy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hardcopy at
the Water Docket in the EPA Docket
Center, EPA/DC, EPA West, Room 3334,
1301 Constitution Avenue NW.,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is 202–
566–1744, and the telephone number for
the Water Docket is 202–566–2426.
ADDRESSES:
For
additional biological information,
contact Tom Born at 202–566–1001;
email: born.tom@epa.gov. For additional
economic information, contact Wendy
Hoffman at 202–564–8794; email:
hoffman.wendy@epa.gov. For additional
technical information, contact Paul
FOR FURTHER INFORMATION CONTACT:
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Shriner at 202–566–1076; email:
shriner.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
What facilities are regulated by this
action?
This final rule applies to existing
facilities that use cooling water intake
structures to withdraw water from
waters of the United States and have or
require an NPDES (National Pollutant
Discharge Elimination System) permit
issued under section 402 of the CWA
(Clean Water Act). Existing facilities
subject to this regulation include those
with a design intake flow (DIF) greater
than 2 mgd. If a facility meets these
conditions, it is subject to today’s final
regulations. If a facility has or requires
an NPDES permit but does not meet the
2 mgd intake flow threshold, it is
subject to permit conditions
implementing CWA section 316(b),
developed by the NPDES Permit
Director on a case-by-case basis using
BPJ (best professional judgment) under
40 CFR 125.90(b). This final rule defines
the term cooling water intake structure
to mean the total physical structure and
any associated constructed waterways
used to withdraw cooling water from
waters of the United States. The cooling
water intake structure extends from the
point at which water is first withdrawn
from waters of the United States source
up to, and including, the intake pumps.
Generally, facilities that meet these
criteria fall into two major groups: steam
electric generating facilities and
manufacturing facilities. The final rule
also makes limited changes to the
requirements for Phase I facilities (i.e.,
new facilities).
Exhibit 1 lists industry sectors of
facilities subject to this final rule. This
table is not intended to be exhaustive;
facilities in other industries not listed in
Exhibit 1 could also be regulated. The
4-digit NAICS industry sectors may
include 6-digit NAICS industry subsectors with operations that are not
dependent on cooling water.
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EXHIBIT 1—INDUSTRY SECTORS WITH FACILITIES SUBJECT TO THE FINAL RULE
Category
4-Digit NAICS industry
sectors
Federal, State and Local Government
Electric Power Industry
NAICS definition
2211
Industry
Electric Power Generation, Transmission and Distribution.
Electric Power Industry
2211
Industry
Electric Power Generation, Transmission and Distribution.
Primary Manufacturing
Industries
3112
3113
3121
3221
3222
3241
3251
3252
3253
3254
3256
3259
3311
3312
3313
1119
2122
3133
3211
3314
3322
3329
3364
3391
Industry
Supporting Documentation
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1. Docket
EPA has established an official public
docket for this action under Docket ID
EPA–HQ–OW–2008–0667. The official
public docket consists of the documents
specifically referenced in this action,
any public comments received, and
other information related to this action.
Although a part of the official docket,
the public docket does not include
information claimed as Confidential
Business Information (CBI) or other
information, the disclosure of which, is
restricted by statute. For information on
how to access materials in the docket,
see ADDRESSES above. To view docket
18:30 Aug 14, 2014
Other Crop Farming.
Metal Ore Mining.
Textile and Fabric Finishing and Fabric Coating Mills.
Sawmills and Wood Preservation.
Nonferrous Metal (except Aluminum) Production and Processing.
Cutlery and Handtool Manufacturing.
Other Fabricated Metal Product Manufacturing.
Aerospace Product and Parts Manufacturing.
Medical Equipment and Supplies Manufacturing.
Other Industries
To determine whether a facility could
be regulated by this action, one should
carefully examine the applicability
criteria in § 125.91 of the final rule. For
information regarding the applicability
of this action to an entity, consult the
persons listed for technical information
in FOR FURTHER INFORMATION CONTACT.
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Grain and Oilseed Milling.
Sugar and Confectionery Product Manufacturing.
Beverage Manufacturing.
Pulp, Paper, and Paperboard Mills.
Converted Paper Product Manufacturing.
Petroleum and Coal Products Manufacturing.
Basic Chemical Manufacturing.
Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing.
Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing.
Pharmaceutical and Medicine Manufacturing.
Soap, Cleaning Compound, and Toilet Preparation Manufacturing.
Other Chemical Product and Preparation Manufacturing.
Iron and Steel Mills and Ferroalloy Manufacturing.
Steel Product Manufacturing from Purchased Steel.
Alumina and Aluminum Production and Processing.
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materials, call ahead to schedule an
appointment. Every user is entitled to
copy 266 pages per day before incurring
a charge. The Docket Center may charge
$0.15 for each page over the 266-page
limit, plus an administrative fee of
$25.00.
2. Electronic Access
You may access this Federal Register
document and the docket electronically
through the Web site https://
www.regulations.gov by searching for
Docket ID EPA–HQ–OW–2008–0667.
For additional information about the
public docket, visit the EPA Docket
Center home page at https://
www.epa.gov/epahome/dockets.htm.
3. Technical Support Documents
The final regulation is supported by
three major documents:
• Economic Analysis for the Final
Section 316(b) Existing Facilities Rule
(EPA–821–R–14–001), referred to as the
EA throughout. This document presents
the analysis of compliance costs,
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economic impacts, energy supply
effects, and a summary of benefits
associated with the final rule.
• Benefits Analysis for the Final
Section 316(b) Existing Facilities Rule
(EPA–821–R–14–005), referred to as the
BA throughout. This document
examines cooling water intake structure
impacts and regulatory benefits at the
regional and national levels.
• Technical Development Document
for the Final Section 316(b) Existing
Facilities Rule (EPA–821–R–14–002),
referred to as the TDD throughout. This
document presents detailed information
on the methods used to develop unit
costs and describes the set of
technologies that may be used to meet
the final rule requirements.
Table of Contents
I. Executive Summary and Scope of Today’s
Rulemaking
A. Executive Summary
B. Scope of Today’s Rulemaking
C. General Applicability
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D. What is an ‘‘existing facility’’ for
purposes of the final rule?
E. What is ‘‘cooling water’’ and what is a
‘‘cooling water intake structure?’’
F. Would my facility be covered only if it
is a point source discharger?
G. Would my facility be covered if it
withdraws water from waters of the
united states? What if my facility obtains
cooling water from an independent
supplier?
H. What intake flow thresholds result in an
existing facility being subject to the final
rule?
I. What are the requirements for existing
offshore oil and gas facilities, offshore
seafood processing facilities or LNG
terminals BTA requirements under the
final rule?
J. What is a ‘‘new unit’’ and how are new
units addressed under the final rule?
K. Amendments related to the phase I rule
II. Legal Authority for and Background of the
Final Regulation
A. Legal Authority
B. Purpose of the Regulation
C. Background
III. Environmental Effects Associated With
Cooling Water Intake Structures
A. Introduction
B. Major Anthropogenic Stressors in
Aquatic Ecosystems
C. Effects of CWIS on Aquatic Ecosystems
D. Community—Level or Indirect Effects of
CWIS
E. Cumulative Effects of Multiple Facilities
IV. Summary Description of the Final Rule
A. BTA Standard for Impingement
Mortality for Existing Units at Existing
Facilities
B. BTA Standard for Entrainment for
Existing Units at Existing Facilities
C. BTA Standard for Impingement
Mortality and Entrainment for New Units
at Existing Facilities
D. Other Provisions
V. Summary of Data Updates and Revisions
to the Proposed Rule
A. Data Updates
B. Regulatory Approach and Compliance
C. New Units
VI. Basis for the Final Regulation
A. EPA’s Approach to BTA
B. Overview of Final Rule Requirements
C. Technologies Considered To Minimize
Impingement and Entrainment
D. Technology Basis for Today’s Final Rule
E. Option Selection
F. Other Options Considered for Today’s
Final Regulation
G. Final Rule BTA Performance Standards
H. Economic and Benefit Analysis for the
Final Rule
I. Site-Specific Consideration of
Entrainment Controls
VII. Response to Major Comments on the
Proposed Rule and Notices of Data
Availability (NODAs)
A. Scope and Applicability
B. Proposed Amendments Related to Phase
I Rule
C. Environmental Impact Associated With
Cooling Water Intake Structures
D. EPA’s Approach to BTA
E. BTA Performance Standards
F. Implementation
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G. Costs
H. Monitoring and Reporting
I. Endangered Species Act
VIII. Implementation
A. When does the final rule become
effective and how are the requirements
sequenced in an orderly way?
B. How does the final rule reduce
biological monitoring requirements?
C. What information will I be required to
submit to the director when I apply for
my NPDES permit?
D. When are permit application studies
due?
E. How will the director determine the best
technology available for minimizing
adverse environmental impacts?
F. What are example permit conditions and
compliance monitoring for impingement
mortality?
G. What monitoring is required for
entrainment?
H. What reports am I required to submit?
I. What records will I be required to keep?
J. What are the respective Federal, State,
and Tribal roles?
K. Protection of Endangered and
Threatened Species and Designated
Critical Habitat
L. Permits for Existing Facilities are
Subject to Requirements under Other
Federal Statutes
IX. Cost Development and Economic Impact
Analysis
A. Overview of Costs to Regulated
Facilities and Federal and State
Governments
B. Development of Compliance Costs
C. Social Costs
D. Economic Impacts
E. Employment Effects
X. Benefits Analysis
A. Introduction
B. Regional Study Design
C. Physical Impacts of Impingement
Mortality and Entrainment
D. National Benefits of the Final Rule and
Options Considered
XI. Related Acts of Congress, Executive
Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Executive Order 13158: Marine
Protected Areas
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L. Congressional Review Act
I. Executive Summary and Scope of
Today’s Rulemaking
A. Executive Summary
1. Summary of the Major Provisions of
the Regulatory Action
This rule establishes requirements
under section 316(b) of the Clean Water
Act (CWA) for existing power generating
facilities and existing manufacturing
and industrial facilities that withdraw
more than 2 million gallons per day
(mgd) of water from waters of the
United States and use at least 25 percent
of the water they withdraw exclusively
for cooling purposes. These national
requirements, which will be
implemented through National
Pollutant Discharge Elimination System
(NPDES) permits, apply to the location,
design, construction, and capacity of
cooling water intake structures (CWIS)
at regulated facilities by setting
requirements that reflect the best
technology available (BTA) for
minimizing adverse environmental
impact.1 On April 20, 2011, EPA
published a proposed rule that included
several options for addressing these
impacts. EPA published two Notices of
Data Availability (NODA), on June 11,
2012 and June 12, 2012, that further
clarified EPA’s approach. This final rule
constitutes EPA’s response to the
remand of the Phase II and Phase III
rules. In addition, EPA is also
responding to the decision in
Riverkeeper I to remove from the Phase
I new facility rule the restoration-based
compliance alternative and the
associated monitoring and
demonstration requirements.
2. Need for the Rule
Cooling water is withdrawn for the
purpose of dissipating waste heat from
industrial processes. Over half of all
water withdrawn in the United States
each year is for cooling purposes. By far,
the largest industrial use of cooling
water is for thermoelectric generation,
but cooling water is also used in the
manufacture of aluminum, chemicals
and allied products, food and kindred
products, pulp and paper, refined
petroleum products, and steel, as well
as in other industries. Although newer
designs are more efficient, the long life
of the capital equipment in these
industries suggests that the adverse
environmental impacts could continue
for decades. Electric generators, for
1 As noted here, the term BTA means ‘‘best
technology available for minimizing adverse
environmental impact.’’ In the interests of brevity,
the acronym will frequently be used in the
preamble to reflect the entire definition.
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example, typically convert 30 to 40
percent of the heat content of their fuel
to electricity, depending on their fuel
source, age of their facility, and capacity
utilization (see TDD 5.1). The purpose
of cooling water withdrawals is to
dissipate that portion of the heat that is
a by-product of industrial processes that
facilities have not used and therefore
view as waste heat.
The withdrawal of cooling water by
existing facilities removes and kills
hundreds of billions of aquatic
organisms from waters of the United
States each year, including plankton
(small aquatic animals, including fish
eggs and larvae), fish, crustaceans,
shellfish, sea turtles, marine mammals,
and many other forms of aquatic life.
Most impacts are to early life stages of
fish and shellfish. Aquatic organisms
drawn into CWIS are either impinged (I)
on components of the intake structure or
entrained (E) in the cooling water
system itself. In CWA section 316(b) and
in this rulemaking, these impacts are
referred to as adverse environmental
impact (AEI). Rates of I&E depend on
species characteristics, the facility’s
environmental setting, and the location,
design, construction and capacity of the
facility’s CWIS. In addition to direct
losses of aquatic organisms from I&E, a
number of indirect, ecosystem-level
effects may also occur, including (1)
disruption of aquatic food webs
resulting from the loss of impinged and
entrained organisms that provide food
for other species, (2) disruption of
nutrient cycling and other biochemical
processes, (3) alteration of species
composition and overall levels of
biodiversity, and (4) degradation of the
overall aquatic environment. In addition
to the impacts of a single CWIS on
currents and other local habitat features,
environmental degradation can result
from the cumulative impact of multiple
intake structures operating in the same
watershed or intakes located within an
area where intake effects interact with
other environmental stressors. Finally,
although it is difficult to measure, the
compensatory ability of an aquatic
population, which is the capacity for a
species to increase survival, growth, or
reproduction rates in response to
decreased population, is likely
compromised by I&E and the
cumulative impact of other stressors in
the environment over extended periods
of time.
The beneficiaries of fish protection at
cooling water intakes include
fisherman, both recreational and
commercial, and people interested in
well-functioning and healthy aquatic
ecosystems. While most people
consume electricity, they consume
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electricity in differing amounts, and
may not be uniformly interested in, or
willing to pay for, fish protection. Thus,
there is imperfect overlap between those
who could be required to pay for fish
protection and those who would benefit
from fish protection. Those who desire
more fish protection have extremely
limited opportunities in which they can
express their willingness to pay for fish
protection in market transactions that
result in fish protection. In addition,
deregulation in the electric industry has
made it more difficult for merchant
power producers to both remain
competitive and pass along to
consumers costs associated with fish
protection, relative to rate-regulated
electric utilities that are vertically
integrated.
Fish protection at cooling water
intakes is also variable, based on species
and their migrations, waterbody, size of
a cooling water intake, presence of
multiple facilities on a waterbody, and
many more variables that are highly site
specific. In addition, given the history of
litigation around this section of the
Clean Water Act, states have, in some
instances, administratively continued
permits while awaiting final Federal
action, and thus fish protection has been
delayed, in some instances for decades.
Promulgation of today’s final rule will
complete EPA’s regulations under
section 316(b) of the Clean Water Act.
This rule includes a national
performance standard as the BTA to
address impingement mortality (IM) at
existing CWIS. This national standard
for impingement reflects EPA’s
assessment that impingement reduction
technology is available, feasible and
demonstrated, and thus BTA for existing
facilities. The impingement mortality
standard is based on modified traveling
screens with fish returns and includes a
performance standard as one
compliance alternative, but also offers
six other compliance alternatives that
are equivalent or better in performance.
With regard to entrainment, this rule
contains a national BTA standard that is
a process for a site-specific
determination of entrainment mitigation
requirements at existing CWIS. The
entrainment provision reflects EPA’s
assessment that there is no single
technology basis that is BTA for
entrainment at existing facilities, but
instead a number of factors that are best
accounted for on a site-specific basis.
Site-specific decision making may lead
to a determination by the NPDES
permitting authority that entrainment
requirements should be based on
variable speed pumps, water reuse, fine
mesh screens, a closed-cycle
recirculating system, or some
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combination of technologies that
constitutes BTA for the individual site.
The site-specific decision-making may
also lead to no additional technologies
being required.
In addition to the above provisions,
which apply to existing units at existing
facilities, the rule establishes a BTA
standard, for both impingement
mortality and entrainment, for new
units at existing facilities. Under this
standard, new units at existing facilities
will be subject to requirements similar
to the section 316(b) requirements for
new facilities subject to the previously
promulgated Phase I rule.
In addition, there is a need to regulate
even those facilities that adopt the most
effective technology. Closed-cycle
cooling is a technology that recirculates
cooling water, reducing withdrawals
from surface waters. Closed-cycle
cooling can reduce water withdrawals
by at least 95 percent, compared to
once-through cooling, but is itself
capital intensive. Facilities that retrofit
to closed-cycle cooling without also
modifying their condenser may not be
able to operate at full capacity during
summer peak periods of electricity
demand (replacing the condenser would
require longer outages). Operators who
retrofit closed-cycle cooling systems
have a financial incentive not to run
their system in closed-cycle mode
during summer months. Thus, decision
making at facilities that use cooling
water may not take society’s preferences
for fish protection into account in their
actions.
EPA notes that some facilities have
installed, and some NPDES permits
require, controls that protect aquatic
organisms from impingement and
entrainment. Facilities may have
adopted controls as good stewards.
Directors may have required controls to
meet state water quality standards,
particularly with regard to temperature.
Based on our evaluation of available
evidence, these actions have not been
widespread enough to discourage
cooling water withdrawals from waters
where they have the greatest impact on
aquatic organisms.
3. Costs and Benefits
As presented in Exhibit I–1, EPA
assessed the expected costs to society
for complying with the final rule,
accounting for both the existing CWIS
unit provision and the new unit
provision, as $275 million and $297
million per year at the 3 percent and 7
percent discount rates, respectively.
These costs reflect permit applications,
studies, recordkeeping, monitoring, and
reporting required by the rule. The costs
also include costs of technologies for
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complying with the BTA for IM. The
cost of additional technologies that may
be required to meet the site-specific
BTA for entrainment are not included in
this analysis because, as explained in
Section VII, EPA cannot estimate, with
any level of certainty, what site-specific
determinations will be made based on
the analyses that will be generated as a
result of the national BTA standard for
entrainment decision-making
established by today’s rule.
EPA estimates that today’s final rule—
including standards for both existing
units and new units at existing
facilities—will achieve monetized
benefits to society of $33 million and
$29 million annually, again depending
on the discount rate. This estimate of
benefits omits important categories of
benefits that EPA expects the rule will
achieve, such as most of the benefits
associated with fish other than
commercially and recreationally
harvested fish. As a result, these
estimates are likely to understate
substantially the rule’s expected
benefits to society. In estimating the
benefits of today’s rule, EPA did not rely
on the results of the stated preference
survey conducted by the Agency and
described in the June 12, 2012 Notice of
Data Availability (77 FR 34927 (June 12,
2012)). Included in the monetized
benefits is EPA’s estimate that the final
rule will reduce greenhouse gas (GHG)
emissions by 9.3 million tons of CO2equivalent emissions over the 40-year
compliance period for this analysis.
Based on this reduction in GHG
emissions, EPA estimates benefits to
society (based on social cost of carbon
(DCN 2 12–4853)) ranging from $12
million to $13 million annually (see
Section 9 of the BA), depending on the
discount rate and other assumptions in
the social cost of carbon analysis.
EXHIBIT I–1—TOTAL ANNUALIZED SOCIAL COSTS AND BENEFITS FOR THE FINAL RULE
[in millions, 2011 dollars]
Existing
units
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Using 3 percent discount rate:
Social Costs ......................................................................................................................................
Social Benefits ..................................................................................................................................
Using 7 percent discount rate:
Social Costs ......................................................................................................................................
Social Benefits ..................................................................................................................................
EPA expects that the final rule will
have relatively minor economic impacts
on the regulated facilities, the entities
that own them, and the overall electric
power sector, which is the industry
most affected by today’s rule. Under the
rule’s existing unit provisions, EPA
estimates that a substantial majority (86
percent) of electric generators will incur
compliance costs of less than 1 percent
of revenue, indicating the minor impact
of the rule on these facilities.
EPA also expects very small impacts
on the non-power sector component of
regulated facilities. EPA estimates that
504 out of 509 facilities will incur costs
less than one percent of revenue, five
will incur costs between one and three
percent, and none will incur costs
greater than 3 percent. In addition, EPA
estimates that no manufacturing
facilities will close as a result of today’s
rule, and that only 12 facilities in the
non-power sector component will
experience moderate financial stress
short of closure. These 12 facilities
represent approximately 3 percent of the
estimated total regulated facilities in the
non-power sector component.
At the level of the entities that own
regulated facilities, EPA estimates that
91 to 94 percent of entities owning
regulated facilities in the electric power
sector will incur compliance costs of
less than 1 percent of revenue under the
rule’s existing unit provisions. Likewise,
for the non-power sector component of
regulated facilities, EPA estimates that
90 to 95 percent of entities owning
regulated facilities will incur
compliance costs of less than 1 percent
of revenue under the rule’s existing unit
provisions.
Finally, EPA estimates that today’s
rule will have a minor impact on the
overall electric power sector and
electricity consumers. EPA estimates
that the rule will not affect national or
regional electricity markets on a longterm basis. In addition, EPA expects
there to be no effects of the final rule on
the reliability of electricity generation,
transmission and distribution. In terms
of consumer impacts, EPA estimates, on
average, across the United States, that
the final rule will increase electricity
production costs by 0.009 cents per
kWh, causing an estimated 0.1 percent
increase in average electricity prices.
The corresponding annual increase in
electricity costs is approximately $1.03
per household.
B. Scope of Today’s Rulemaking
Today’s final rule represents the last
stage in EPA’s efforts to implement
section 316(b) of the CWA. In the course
of their operations, electric power
facilities and certain manufacturing
facilities use large amounts of water
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$272.4
33.0
$2.5
¥0.2
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32.8
295.3
28.7
2.0
¥0.1
297.3
28.6
either for cooling purposes or in their
manufacturing processes. Such facilities
typically remove water from nearby
sources using ‘‘cooling water intake
structures.’’ The structures associated
with water removal pose a number of
threats to the environment. Principally,
aquatic organisms are squashed against
intake screens—impingement—or
drawn into the cooling system—
entrainment. Section 316(b) requires
EPA to develop standards for cooling
water intakes structures.
Today’s final rule establishes national
requirements applicable to the location,
design, construction, and capacity of
cooling water intake structures at
existing facilities that reflect the BTA
for minimizing the adverse
environmental impacts– impingement
and entrainment—associated with the
use of these structures. It represents the
culmination of EPA’s efforts to
implement section 316(b) and, as such,
fulfills EPA’s obligation under a
settlement agreement entered in the
United States District Court for the
Southern District of New York in
Riverkeeper Inc., et al. v. Jackson, No.
93 Civ. 0314 (AGS). (For a more detailed
discussion of the settlement agreement,
see Section II.C.)
This final rule establishes
requirements for all existing facilities
with a DIF (design intake flow) of more
2 DCN refers to a document control number. An
index of DCNs can be found in the docket for this
action.
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than 2 mgd. EPA estimates that a total
of 1,065 facilities will be subject to the
final rule, including 544 Electric
Generators, 509 Manufacturers in six
Primary Manufacturing Industries, and
12 Manufacturers in Other Industries.
The rule also clarifies the definition and
requirements for new units at existing
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facilities. The applicable requirements
are summarized in Exhibits I–2 and I–
3.
EXHIBIT I–2—APPLICABILITY BY PHASE OF THE 316(B) RULES
Facility characteristic
Applicable rule
New power-generating or manufacturing facility .................................................................................................
New offshore oil and gas facility ..........................................................................................................................
New unit at an existing power-generating or manufacturing facility ...................................................................
Existing power-generating or manufacturing facility ............................................................................................
Existing offshore oil and gas facility and offshore seafood processing facilities ................................................
Phase I rule.
Phase III rule.
This rule.
This rule.
This rule (site-specific, BPJ).
EXHIBIT I–3—APPLICABLE REQUIREMENTS OF TODAY’S RULE FOR EXISTING FACILITIES
Facility characteristic
Applicable requirements
Existing facility with a DIF greater than 2 mgd and an AIF (actual intake flow) greater than 125 mgd.
Impingement mortality standards at § 125.94(c) and site-specific entrainment requirements under the entrainment standards at
§ 125.94(d) (Additional study requirements at § 122.21(r)(1)(ii)(B)).
Impingement mortality standards at § 125.94(c) and site-specific entrainment requirements under the entrainment standards at
§ 125.94(d).
Impingement mortality and entrainment standards for new units at
§ 125.94(e).
Case-by-case BPJ permitting per § 125.90(b).
Existing facility with a DIF greater than 2 mgd but AIF not greater than
125 mgd.
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New unit at an existing facility where the facility has a DIF greater than
2 mgd.
Other existing facility with a DIF of 2 mgd or smaller or that has an intake structure that withdraws less than 25 percent of the water for
cooling purposes on an actual intake flow basis.
At an early stage in the development
of section 316(b) requirements, EPA
divided its rulemaking effort into three
phases. The first addressed new
facilities, the second, large existing
electricity utility facilities and the third,
the remaining electric generating
facilities not addressed in the earlier
phases as well as existing
manufacturing operations. As EPA’s
analysis progressed, however, it became
clear that it could address in one
rulemaking cooling water intake
structures at both existing steam electric
generating and manufacturing facilities.
From a biological perspective, the effect
of intake structures on impingement and
entrainment 3 does not differ depending
on whether an intake structure is
associated with a power plant or a
manufacturer. In 2009, following
judicial challenge of the Phase II rule,
EPA asked the U.S. Court of Appeals for
the Second Circuit to remand the rule to
the Agency for further action consistent
with a decision by the U.S. Supreme
Court in Entergy Corp. v. Riverkeeper,
Inc. and the Second Circuit’s decision
on the Phase II rule in Riverkeeper, Inc.
v. EPA, 475 F.3d 83 (2d cir. 2007). In
2009, EPA also asked the U.S. Court of
3 Throughout the preamble and support
documents, the terms ‘‘entrainment’’ and
‘‘entrainment mortality’’ may be used
interchangeably. As described below, EPA
continues to assume that, in most instances,
entrainment mortality is 100 percent, leaving little
distinction between the two terms.
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Appeals for the Fifth Circuit to remand
certain aspects of EPA’s Phase III rule
that were before it in a petition for
review. Today’s rule responds to these
remands as well to the Second Circuit’s
remand of limited aspects of the Phase
I section 316(b) rule in Riverkeeper Inc.
v. Johnson, 358 F.3d 174 (2nd Cir.
2004). EPA has here consolidated the
universe of potentially regulated
facilities from the remanded 2004 Phase
II rule with the existing facilities in the
remanded 2006 Phase III rule for
establishing requirements in a single
proceeding.
C. General Applicability
This rule applies to owners and
operators of existing facilities 4 that
meet all following criteria:
• The facility is a point source that
uses or, in the case of new units at an
existing facility, proposes to use cooling
water from one or more cooling water
intake structures, including a cooling
water intake structure operated by an
independent supplier not otherwise
subject to 316(b) requirements that
withdraws water from waters of the
United States and provides cooling
water to the facility by any sort of
contract or other arrangement;
4 Throughout the preamble, the terms ‘‘owner or
operator of a facility’’ and ‘‘facility’’ may be used
interchangeably. In cases where the preamble may
state that a facility is required to do a given activity,
it should be interpreted as the owner or operator of
the facility is required to do the activity.
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• The facility-wide DIF for all cooling
water intake structures at the facility is
greater than 2 mgd;
• The cooling water intake structure
withdraws cooling water from waters of
the United States; and
• At least 25 percent of the water
actually withdrawn—actual intake flow
(AIF)—is used exclusively for cooling
purposes.
A facility may choose to demonstrate
compliance with the final rule for the
entire facility, or for each individual
cooling water intake structure.
EPA is adopting provisions that
promote the reuse of water from certain
sources for cooling and that ensure that
the rule does not discourage the reuse
of cooling water for other uses such as
process water. For example, the final
rule at § 125.91(c) specifies that
obtaining cooling water from a public
water system, using reclaimed water
from wastewater treatment facilities or
desalination plants, or recycling treated
process wastewater effluent (such as
wastewater treatment plant ‘‘gray’’
water) does not constitute use of a
cooling water intake structure for
purposes of this rule. In addition, the
definition of cooling water at § 125.92
provides that cooling water obtained
from a public water system, reclaimed
water from wastewater treatment
facilities or desalination plants, treated
effluent from a manufacturing facility,
or cooling water that is used in a
manufacturing process either before or
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after it is used for cooling as process
water is not considered cooling water
for the purposes of calculating the
percentage of a facility’s intake flow that
is used for cooling purposes. Therefore,
water used for both cooling and noncooling purposes does not count toward
the 25 percent threshold. Examples of
water withdrawn for non-cooling
purposes includes water withdrawn for
warming by LNG (liquefied natural gas)
facilities and water withdrawn for
public water systems by desalinization
facilities.
Today’s rule focuses on those
facilities that are significant users of
cooling water. The rule provides that
only those facilities that use 25 percent
or more of the water withdrawn
exclusively for cooling purposes (on an
actual intake flow basis) are subject to
the rule. EPA previously considered a
number of cut-points or approaches for
focusing the applicability of the rule (66
FR 28854, May 25, 2001 and 66 FR
65288, December 18, 2001). EPA used
the 25 percent threshold in each of the
Phase I, II, and III rules. For this rule,
EPA did not receive any new data
supporting a different threshold or
identify new approaches to the
applicability of the rule. Consequently,
EPA is adopting 25 percent as the
threshold for the percent of flow used
for cooling purposes to ensure that a
large majority of cooling water
withdrawn from waters of the United
States are subject to the rule’s
requirements for minimizing adverse
environmental impact. Because powergenerating facilities typically use far
more than 25 percent of the water they
withdraw exclusively for cooling
purposes, the 25 percent threshold will
ensure that intake structures accounting
for nearly all cooling water used by the
power sector are addressed by today’s
rule requirements. While manufacturing
facilities often withdraw water for more
purposes than cooling, the majority of
the water is withdrawn from a single
intake structure. Once water passes
through the intake, water can be
apportioned to any desired use,
including uses that are not related to
cooling. However, as long as at least 25
percent of the water is used exclusively
for cooling purposes, the intake is
subject to the requirements of today’s
rule. EPA estimates that approximately
70 percent of manufacturers and 87
percent of power-generating facilities
that meet the first three criteria for
applicability outlined above also use 25
percent or more of intake water for
cooling and thus are subject to today’s
rule. (See 66 FR 65288, December 18,
2001.)
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For facilities that are below any of the
applicability thresholds in today’s
rule—for example, a facility that
withdraws less than 25 percent of the
intake flow for cooling purposes—the
Director must set appropriate
requirements on a case-by-case basis,
using BPJ, based on § 125.90(b). Today’s
rule is not intended to constrain permit
writers at the Federal, State, or Tribal
level, from addressing such cooling
water intake structures. Also, EPA
decided to adopt for the final rule the
proposed provision that requires the
owners and operators for certain
categories of facilities (existing offshore
oil and gas facilities, existing offshore
seafood processing facilities and
offshore LNG terminals) to meet caseby-case BTA impingement and
entrainment requirements, established
by the Director. Such facilities are
subject to permit conditions
implementing CWA section 316(b) if the
facility is a point source that uses a
cooling water intake structure and has,
or is required to have, an NPDES permit.
D. What is an ‘‘existing facility’’ for
purposes of the final rule?
In today’s rule, EPA is defining the
term ‘‘existing facility’’ to include any
facility subject to section 316(b) that is
not a ‘‘new facility’’ as defined in 40
CFR 125.83 (the Phase I rule).
A point source discharger would be
subject to Phase I or today’s rule even
if the cooling water intake structure it
uses is not located at the facility.5 In
addition, modifications or additions to
the cooling water intake structure (or
even the total replacement of an existing
cooling water intake structure with a
new one) does not convert an otherwise
unchanged existing facility into a new
facility, regardless of the purpose of
such changes (e.g., to comply with
today’s rule or to increase capacity).
Rather, the determination as to whether
a facility is new (Phase I) or existing
(today’s rule) focuses on whether or not
it is a greenfield or stand-alone facility
whose processes are substantially
independent of an existing facility, and
whether or not there are changes to the
cooling water intake. New facility does
not include new units that are added to
a facility for purposes of the same
general industrial operation. For
example, a new peaking unit at an
existing electrical generating station is
not a new facility (40 CFR 125.83). The
distinction between an existing facility
and a new facility is separate from the
distinction between an existing unit at
5 For example, a facility might purchase its
cooling water from a nearby facility that owns and
operates a cooling water intake structure.
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an existing facility and a new unit at an
existing facility, which is discussed at
greater length in Section J below.
E. What is ‘‘cooling water’’ and what is
a ‘‘cooling water intake structure?’’
EPA has slightly revised the
definition of cooling water intake
structure from proposal for today’s rule.
In today’s final rule, a cooling water
intake structure is defined as the total
physical structure and any associated
constructed waterways used to
withdraw cooling water from waters of
the United States. Under the definition
in today’s rule, the cooling water intake
structure extends from the point at
which water is first withdrawn from
Waters of the United States up to, and
including, the intake pumps. The final
rule at § 125.91(c) also specifies that
obtaining cooling water from a public
water system, using reclaimed water
from wastewater treatment facilities
(such as wastewater treatment plant
‘‘gray’’ water) or desalination plants, or
recycling treated process wastewater
effluent does not constitute use of a
cooling water intake structure for
purposes of applicability of this rule. As
a point of clarification, facilities subject
to today’s rule may choose to use
another entity’s treated wastewater as a
source of cooling water, thereby
reducing cooling water withdrawals and
associated impingement and
entrainment. EPA notes that because the
entity providing the wastewater for
cooling has already treated it to meet
any applicable discharge requirements
(e.g., otherwise applicable effluent
limitations guidelines and standards,
water quality standards, etc.), EPA is not
concerned that this provision will lead
to pollutant discharges that would not
have occurred if the treated effluent had
been discharged by the other entity.
Today’s rule adopts the new facility
rule’s definition of cooling water as
water used for contact or noncontact
cooling, including water used for
equipment cooling, evaporative cooling
tower makeup, and dilution of effluent
heat content. The definition specifies
that the intended use of cooling water
is to absorb waste heat [not being
efficiently used or recaptured for
production and thus] rejected from the
process or processes used or from
auxiliary operations on the facility’s
premises. The definition also indicates
that cooling water obtained from a
public water system, reclaimed water
from wastewater treatment facilities or
desalination plants, treated effluent
from a manufacturing facility, or cooling
water that is used in a manufacturing
process either before or after it is used
for cooling as process water would not
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be considered cooling water for the
purposes of determining whether 25
percent or more of the actual intake flow
is cooling water. This clarification is
necessary because cooling water intake
structures typically bring water into a
facility for numerous purposes,
including industrial processes; use as
circulating water, service water, or
evaporative cooling tower makeup
water; dilution of effluent heat content;
equipment cooling; and air
conditioning. Note, however, that all
intake water (including cooling and
non-cooling process) is included in the
determination as to whether the 2 mgd
DIF threshold for covered intake
structures is met.
F. Would my facility be covered only if
it is a point source discharger?
Today’s rule applies only to facilities
that have an NPDES permit or are
required to obtain one. This is the same
requirement EPA included in the Phase
I new facility rule at § 125.81(a)(1).
Requirements for complying with CWA
section 316(b) will continue to be
applied through NPDES permits.
On the basis of the Agency’s review
of potential existing facilities that
employ cooling water intake structures,
the Agency anticipates that most
facilities will control the intake
structure that supplies them with
cooling water, and discharge some
combination of their cooling water,
wastewater, or stormwater to a water of
the United States through a point source
regulated by an NPDES permit. In such
cases, the facility’s NPDES permit must
include the requirements for the cooling
water intake structure. If an existing
facility’s only NPDES permit is a general
permit for stormwater discharges, the
Agency anticipates that the Director will
write an individual NPDES permit
containing requirements for the
facility’s cooling water intake structure.
Alternatively, requirements applicable
to cooling water intake structures could
be incorporated into general permits. If
requirements are placed into a general
permit, they must meet the
requirements set out at 40 CFR 122.28.
As EPA stated in the preamble to the
final Phase I rule (66 FR 65256,
December 18, 2001), the Agency
encourages the Director to closely
examine scenarios in which a facility
withdraws significant amounts of
cooling water from waters of the United
States but is not required to obtain an
NPDES permit. As appropriate, the
Director must apply other legal
requirements, where applicable, such as
CWA sections 401 or 404, the Coastal
Zone Management Act, the National
Environmental Policy Act, the
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Endangered Species Act, or similar State
or Tribal authorities to address adverse
environmental impact caused by cooling
water intake structures at those
facilities.
G. Would my facility be covered if it
withdraws water from waters of the
united states? what if my facility obtains
cooling water from an independent
supplier?
The requirements in today’s rule
apply to cooling water intake structures
that have the design capacity to
withdraw amounts of water greater than
2 mgd from waters of the United States.
Waters of the United States include the
broad range of surface waters that meet
the regulatory definition at 40 CFR
122.2 and 40 CFR 230.3, which includes
lakes, ponds, reservoirs, nontidal rivers
or streams, tidal rivers, estuaries, fjords,
oceans, bays, and coves. These potential
sources of cooling water can be
adversely affected by impingement and
entrainment.
Some facilities use an impoundment
such as a man-made pond or reservoir
as part of a cooling system. Cooling
water is withdrawn from the pond or
reservoir at one point and heated water
is discharged to a different point, using
mixing and evaporative processes. As
explained above, section 316(b) and
today’s final rule apply only to
withdrawals of cooling water from
waters of the United States; accordingly,
to the extent a facility withdraws
cooling water from a pond or reservoir
that is not itself a water of the United
States and does not withdraw any makeup water from waters of the U.S., the
requirements of today’s rule do not
apply to such systems. Impoundments
that are not constructed from a waters
of the U.S. but do withdraw make-up
water from waters of the U.S. can be
closed-cycle recirculating systems
subject to the requirements of today’s
rule, provided that withdrawal for
make-up water is minimized.
Facilities that withdraw cooling water
from impoundments that are in whole
or in part waters of the United States
and that meet the other criteria for
coverage (including the requirement
that the facility has or will be required
to obtain an NPDES permit) are subject
to today’s rule. In today’s rule, the
agency is defining the term closed-cycle
recirculating system to include, at
§ 125.92(c)(2), a system with
impoundments of waters of the U.S.
where the impoundment was lawfully
created 6 for the purpose of serving as
6 The owner or operator of the facility would
provide documentation such as the project purpose
statement for the Clean Water Act section 404
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48307
part of the cooling water system. In
determining whether an impoundment
qualifies as a closed-cycle recirculating
system, the Director will determine
whether the make-up water withdrawals
for such a system have been minimized.
In many cases, EPA expects that such
make-up water withdrawals are
commensurate with the flows of a
closed-cycle cooling tower. Some of
these impoundments may qualify for the
waste treatment exclusion found in the
definition of a waste treatment system at
40 CFR 122.2, and this rule does not
affect the applicability of that exclusion.
EPA does not intend for this rule to
change the regulatory status of
impoundments. Impoundments are
addressed in the definition of waters of
the United States at 40 CFR 122.2 and
40 CFR 230.3. The determination
whether an impoundment is a water of
the United States is to be made by the
Director on a site-specific basis. The
EPA and the U.S. Army Corps of
Engineers have jointly issued
jurisdictional guidance concerning the
term waters of the United States in light
of the Supreme Court’s decision in Solid
Waste Agency of Northern Cook County
v. U.S. Army Corps of Engineers, 531
U.S. 159 (2001) (SWANCC). A copy of
that guidance was published as an
Appendix to an Advanced Notice of
Proposed Rulemaking on the definition
of the phrase waters of the United
States, see 68 FR 1991, January 15,
2003, which is at https://www.epa.gov/
owow/wetlands/pdf/ANPRM-FR.pdf.
The agencies additionally published
guidance in 2008 regarding the term
waters of the United States in light of
both the SWANCC and subsequent
Rapanos case (Rapanos v. United
States, 547 U.S. 715 (2006)). The EPA
published a proposed revision to the
definition of ‘‘Waters of the United
States’’ under the Clean Water Act on
April 21, 2014 (see 79 FR 22188).
EPA recognizes that some
impoundments may be man-made
waterbodies that support artificially
managed and stocked fish populations.
As a result, EPA has included a
provision in today’s final rule to allow
the Director to waive certain permit
application requirements for such
facilities. Note, however, that these
facilities are still subject to the final
rule.
EPA acknowledges that the point of
compliance for facilities located on
permit obtained to construct the impoundment. If
the impoundment was created prior to the CWA
requirement to obtain a section 404 permit, the
owner or operator would provide any other license
or permit obtained to lawfully construct the
impoundment for the purposes of a cooling water
system.
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impoundments may also vary
depending on where the facility
withdraws from a water of the United
States. Again, only cooling water
systems with withdrawals of cooling
water from waters of the United States
are covered by section 316(b) and
today’s rule. Because a facility may
withdraw cooling water from a water of
the United States either directly or as
makeup water for a closed-cycle cooling
system, the Director may determine
where within a facility’s cooling water
intake structure is or are the facility’s
point or points of compliance.
The Agency recognizes that some
facilities that have or are required to
have an NPDES permit might not own
and operate the intake structure that
supplies their facility with cooling
water. In addressing facilities that have
or are required to have an NPDES
permit that do not directly control the
intake structure that supplies their
facility with cooling water, § 125.91
provides (similar to the new facility
rule) that facilities that obtain cooling
water from a public water system, use
reclaimed water from a wastewater
treatment facility or desalinization
plant, or use treated effluent are not
deemed to be using a cooling water
intake structure for purposes of this
rule. However, obtaining water from
another entity that is withdrawing water
from a water of the United States will
be counted as using a cooling water
intake structure for purposes of
determining whether an entity meets the
threshold requirements of the rule. For
example, facilities operated by separate
entities might be located on the same,
adjacent, or nearby property. One of
these facilities might take in cooling
water and then transfer it to other
facilities that discharge to a water of the
United States. Section 125.91(b)
specifies that use of a cooling water
intake structure includes obtaining
cooling water by any sort of contract or
arrangement with one or more
independent suppliers of cooling water
if the supplier or suppliers withdraw
water from waters of the United States
but that is not itself a new or existing
facility subject to CWA section 316(b),
except if it is a public water system, a
wastewater treatment facility or
desalination plant providing reclaimed
water, or a facility providing treated
effluent for reuse as cooling water
pursuant to § 125.91(c).
As a practical matter, the existing
facilities subject to this rule are the
largest users of cooling water and
therefore typically withdraw volumes of
water for cooling that warrant owning
the cooling water intake structures. In
some cases, such as at nuclear power
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plants or critical baseload facilities, the
need for cooling water includes safety
and reliability reasons that would likely
preclude any independent supplier
arrangements. Therefore, EPA expects
this provision will have only limited
applicability. EPA is nevertheless
retaining the provision to prevent
facilities from circumventing the
requirements of today’s rule by creating
arrangements to receive cooling water
from an entity that is not itself subject
to today’s rule and that is not otherwise
explicitly exempt from today’s rule
(such as drinking water or treatment
plant discharges reused as cooling
water).
H. What intake flow thresholds result in
an existing facility being subject to the
final rule?
EPA determines the cooling water
flow at a facility in two ways. The first
is based on the DIF, which reflects the
maximum intake flow the facility is
capable of withdrawing. While this
normally is limited by the capacity of
the cooling water intake pumps, other
parts of the cooling water intake system
could impose physical limitations on
the maximum intake flow the facility is
capable of withdrawing. The second
method for determining cooling water
flow is based on the AIF, which reflects
the actual volume of water withdrawn
by the facility. EPA has defined AIF to
be the average water withdrawn each
year over the preceding three years.7
Both of these methods are used in
today’s rule.
Today’s final rule applies to facilities
that have a total DIF of greater than 2
mgd (see § 125.91).8 At a threshold of 2
mgd, today’s rule covers 99.8 percent of
the total water withdrawals by utilities
and other industrial sources (if the other
criteria for coverage are met), which
includes 70 percent of manufacturing
facilities and 87 percent of electric
generators. EPA also chose the greater
than 2 mgd threshold because it was
consistent with the applicability criteria
in the Phase I rule.9
There are substantial environmental
benefits that will accrue with a
threshold of 2 mgd. For example, EPA’s
analysis indicates that greater than 82
percent of impinged fish mortality
across all facilities would be prevented
7 For permit terms subsequent to the first permit
issued under today’s rule, the rule defines AIF as
the average flows over the previous 5 years.
8 The 2004 Phase II rule would have applied to
existing power-generating facilities with a design
intake flow of 50 mgd or greater. Facilities
potentially regulated by the Phase III rule had a DIF
of greater than 2 mgd.
9 For more information, see 65 FR 49067, August
10, 2000.
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by this rule at this threshold. EPA also
considered a threshold of 50 mgd. The
record includes 38 studies documenting
IM at more than 40 facilities with flows
lower than 50 mgd. Further, the
industry questionnaire demonstrates
that such facilities are twice as likely to
have no controls in place for
impingement or entrainment than are
facilities with intake flows greater than
50 mgd. In addition, lower intake flow
facilities can have similar impacts to
those of larger flow facilities as sizable
numbers of fish are impinged by lower
flow facilities. Moreover, site-specific
impacts of lower flow facilities may be
significant, particularly where
threatened or endangered species are
present.
Although smaller flow facilities (those
less than 50 mgd) constitute a large
proportion of the total number of the
facilities regulated (476 of 1,065), the
total compliance cost for these smaller
facilities are only a small portion of the
total compliance cost of the rule ($23
million of $275 million). Thus any
perceived aggregate cost savings from
setting the threshold higher than 2 mgd
would be minimal.
There is no appreciable difference in
the cost effectiveness of the rule with a
higher applicability threshold. For
example, the cost effectiveness of the
rule with a threshold of 2 mgd is $0.42
per age-one equivalent losses (A1E). At
a threshold of 50 mgd the cost
effectiveness would be $0.41 per A1E.
In addition, the incremental cost of the
2 mgd threshold relative to a 50 mgd
threshold is negligible for the electric
power industry at less than 0.1 percent
of annual electricity sector revenue,
which exceeds $126 billion. The
facility-level impacts are negligible to
zero at either 2 or 50 mgd threshold. At
the 2 mgd threshold, only 5 (1 percent)
of the manufacturing facilities have a
cost-to revenue ratio exceeding 1
percent (but less than 3 percent). While
this drops to zero facilities at the 50
mgd threshold, the difference of 5
facilities out of 509 facilities is not
significant. Costs for lower flow
facilities are so small that the average
annual household utility bill would not
measurably decrease by changing the
threshold from 2 to 50 mgd. While 58
percent of the small facilities affected by
the final rule are below 50 mgd, 40
percent of them already meet one of the
compliance alternatives for
impingement mortality of the rule and
likely would not need to install any
additional compliance technologies.
And small businesses account for only
17 percent of facilities at or below 50
mgd, demonstrating that there would
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not be a disproportionate impact on
small businesses at a 2 mgd threshold.
Thus, EPA concluded that the
threshold of 2 mgd ensures that the
users of cooling water causing the most
adverse environmental impact are
subject to the rule. Raising the threshold
for applicability of the rule’s
impingement and entrainment
requirements to 50 mgd as some
commenters suggested was not
supportable given the statistics and
information described above.
Raising the applicability threshold to
50 mgd would have meant that 476
facilities, almost half of the 1,065
facilities subject to the national
standards set by today’s rule, would not
be subject to the rule. Ignoring so many
facilities when setting national
standards fails to apply the common
sense approaches set forth in this rule
for minimizing adverse environmental
impacts from cooling water intake
structures.
Excluding such a large number of
facilities from this rule would create
regulatory uncertainty for those
facilities since they would remain
subject to CWA permitting
requirements, but without the benefits
of the structure of this rule. Directors
would have an obligation to establish
controls on a case-by-case basis for these
lower flow facilities using a BPJ analysis
instead of using the more
straightforward and transparent
provisions of setting controls based on
national standards contained in this
rule. Such BPJ analyses can be
uncertain, and can be time consuming
and complex to develop for both
Directors and owners and operators of
facilities. Case-by-case BPJ permits
(instead of permits based on the
national standards in today’s rule)
would likely increase the time and costs
to states for such permits to be
developed, further delaying the
minimization of adverse environmental
impacts called for by CWA section
316(b). Maintaining an applicability
threshold of 2 mgd DIF best combines
the shared goals of minimizing adverse
environmental impacts as required by
the CWA, and the predictability and
flexibility contained in the rule.
EPA acknowledges that there may be
circumstances where flexibility in the
application of the rule may be called for
and the rule so provides. For example,
some low flow facilities that withdraw
a small proportion of the mean annual
flow of a river may warrant special
consideration by the Director. As an
illustration, if a facility withdraws less
than 50 mgd AIF, withdraws less than
5 percent of mean annual flow of the
river on which it is located (if on a river
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or stream), and is not co-located with
other facilities with CWISs such that it
contributes to a larger share of mean
annual flow, the Director may determine
that the facility is a candidate for
consideration under the de minimis
provisions contained at § 125.94(c)(11).
In the case of facilities on lakes and
reservoirs, co-location would be better
determined by multiple CWIS facilities
on the same waterbody, rather than
distance.
In either case, the flexibilities
contained in the rule for the Director to
consider the site-specific characteristics
of each intake structure within the
national standard provide a useful
mechanism for facilities with lower
intake flows and low impacts to be
considered.
EPA is continuing to base
applicability on DIF as opposed to AIF
for several reasons. In contrast to AIF,
DIF is a fixed value based on the design
of the facility’s operating system and the
capacity of the circulating and other
water intake pumps. This provides
clarity because the DIF does not vary
with facility operations, except in
limited circumstances, such as when a
facility undergoes major modifications.
On the other hand, actual flows can vary
significantly over sometimes short
periods. For example, a peaking power
plant might have an AIF close to the DIF
during times of full energy production,
but an AIF of zero during lengthy
periods of standby. Use of DIF provides
clarity as to regulatory status, is
indicative of the potential magnitude of
environmental impact, and avoids the
need for monitoring to confirm a
facility’s status. For more information
about these thresholds, see 69 FR 41611,
July 9, 2004.
Under this rule, all facilities with a
DIF of greater than 2 mgd, that meet the
other three criteria for applicability of
today’s rule, must submit basic
information describing the facility,
Source Water Physical Data, Source
Water Biological Characterization Data,
and Cooling Water Intake System Data.
In addition, these facilities must submit
additional facility-specific information
including the selected impingement
compliance option, and operational
status of each of the facility’s units.10
Certain facilities withdrawing the
largest volumes of water for cooling
purposes have additional information
and study requirements such as relevant
biological survival studies and the
entrainment study as described below.
10 The final rule allows the Director to waive
certain information submission requirements for
facilities that already employ closed-cycle cooling.
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48309
The final rule uses AIF rather than
DIF for purposes of determining which
facilities must provide the information
required in § 122.21(r)(9) through (13),
referred to as the entrainment study.
Thus, the rule provides that any facility
subject to the rule with actual flows in
excess of 125 mgd must provide an
entrainment study with its permit
application (which includes the
Entrainment Characterization Study at
§ 122.21(r)(9)).11 Adverse environmental
impacts from entrainment result from
actual water withdrawals, and not the
maximum designed level of withdrawal.
Further, using actual flow might
encourage some facilities to adopt
operational practices to reduce their
flows below 125 mgd AIF to avoid
collecting supplemental data and
submitting the additional entrainment
study. Furthermore, any facility that has
DIF greater than 2 mgd, that meets the
other three criteria for applicability of
today’s rule, is required to submit basic
information that will allow the Director
to verify its determination of whether it
meets the 125 mgd AIF threshold.
EPA has selected an administrative
threshold of 125 mgd AIF for
submission of the entrainment study
because this threshold will capture 90
percent of the actual flows but will
apply to only 30 percent of existing
facilities. Further, based on EPA’s data
there are no closed-cycle recirculating
systems in use above this threshold. The
125 mgd AIF threshold will
significantly limit facility burden at
more than two-thirds of the potentially
affected facilities while focusing the
Director on major cooling water
withdrawals. Contrary to a number of
public comments, however, EPA is not
implying or concluding that the 125
mgd threshold is an indicator that
facilities withdrawing less than 125 mgd
are (1) not causing any adverse impacts
or (2) automatically qualify as meeting
BTA. In other words, the threshold,
while justified on a technical basis, does
not result in exemptions from the rule.
Instead, EPA is making a policy
decision as to which facilities must
provide a certain level and type of
information. The Director, of course,
will retain the discretion to require
reasonable information to make
informed decisions at the smaller
facilities. The 125 mgd threshold
focuses on the facilities with the highest
intake flows and the highest likelihood
of causing adverse impacts; it is not an
11 For impoundments constructed in uplands or
not in waters of the United States, the point of
compliance for measuring AIF to determine if it is
greater than 125 mgd is the intake into the
impoundment from the waters of the United States.
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indicator that facilities under that
threshold are no longer of concern in
the final rule.
In today’s rule, EPA seeks to clarify
that for some facilities, the DIF is not
necessarily the maximum flow
associated with the intake pumps. For
example, a power plant might have
redundant circulating pumps, or might
have pumps with a name plate rating
that exceeds the maximum water
throughput of the associated piping.
EPA intends for the DIF to reflect the
maximum rate at which a facility can
physically withdraw water from a
source waterbody (usually normalized
to a daily rate in mgd). This also means
that a facility that has permanently
taken a pump out of service should be
able to consider such constraints when
reporting its DIF, as the facility’s
capacity to withdraw water may have
fundamentally changed. Additionally, if
a facility’s flow is limited by
constrictions in the piping or other
physical limitations (e.g., a given
portion of its cooling system that can
only safely handle a given amount of
flow) and that flow is lower than the DIF
for the pumps, the facility should be
able to consider such constraints when
reporting its DIF, because it is not
capable of withdrawing its full pumping
DIF without compromising the cooling
system.
I. What are the requirements for existing
offshore oil and gas facilities, offshore
seafood processing facilities or LNG
terminals BTA requirements under the
final rule?
Under today’s rule, existing offshore
oil and gas facilities, existing offshore
seafood processing facilities and
existing LNG terminals will be subject
to section 316(b) requirements on a BPJ
basis. In the Phase III rule, EPA studied
offshore oil and gas facilities and
offshore seafood processing facilities 12
and could not identify any technologies
(beyond the protective screens already
in use) that are technically feasible for
reducing impingement or entrainment
in such existing facilities.13 As
discussed in the Phase III rule, known
technologies that could further reduce
impingement or entrainment would
result in unacceptable changes in the
envelope of existing platforms, drilling
rigs, mobile offshore drilling units,
offshore seafood processing facilities,
and similar facilities as the technologies
would project out from the hull,
potentially decrease the seaworthiness,
and potentially interfere with structural
components of the hull. It is also EPA’s
view that for many of these facilities,
the cooling water withdrawals are most
substantial when the facilities are
operating far out at sea and, therefore,
not withdrawing from a water of the
United States. EPA is aware that LNG
facilities may withdraw hundreds of
million gallons per day of seawater for
warming (re-gasification). However,
some existing LNG facilities might still
withdraw water where 25 percent or
more of the water is used for cooling
purposes on an actual intake flow basis.
EPA has not identified a uniformly
applicable and available technology for
minimizing impingement mortality and
entrainment at these facilities. However,
technologies might be available for some
existing LNG facilities. LNG facilities
that withdraw any volume of water for
cooling purposes will be subject to sitespecific, BPJ determinations of BTA.
EPA has not identified any new data
or approaches that would result in a
different determination. Therefore, EPA
has adopted the approach of the
proposed rule and is requiring that
NPDES Permit Directors, on a case-bycase basis using BPJ, determine BTA for
existing offshore oil and gas extraction
facilities, existing offshore seafood
processing facilities, and existing LNG
terminals.
J. What is a ‘‘new unit’’ and how are
new units addressed under the final
rule?
Today’s rule establishes requirements
for new units at an existing facility that
are different than those applicable to
existing units at an existing facility. The
requirements for new units at existing
facilities are modeled after the
requirements for a new facility in the
Phase I rule. Under today’s rule, a new
unit means a newly built, stand-alone
unit, whose construction begins after
the effective date of the rule. EPA is also
clarifying that while Phase I does not
include units newly constructed at an
existing facility for the same general
industrial operation, such units do
constitute a new unit at existing
facilities and, as such, are subject to
today’s final rule.
On the basis of the public comments
received on how to define ‘‘new unit,’’
EPA provides a clear definition for this
term in the final rule. The definition for
a new unit at an existing facility
establishes a clear regulatory framework
for both affected facilities and Directors.
This definition captures facilities that
are undergoing major construction
projects involving the construction of a
new stand-alone unit, while not
discouraging upgrades. For example, a
nuclear facility conducting a
measurement uncertainty capture or a
stretch power uprate, or a fossil-fuel
facility repowering an existing
generating unit, would not be
considered to result in the relevant unit
becoming a new unit. As another
example, under this definition placing
an offshore facility or vessel into a dry
dock for maintenance or repair does not
result in either the offshore facility,
vessel, or the dry dock as being defined
as a new unit.
Section VI discusses EPA’s rationale
for establishing the definitions for new
units at existing facilities described
below.
1. Electric Generators
The final rule defines a new unit at an
existing facility as a newly built, standalone unit that is constructed at an
existing facility and that does not meet
the definition of a new facility. An
existing unit that is repowered or
undergoes significant modifications
(such as where the turbine and
condenser are replaced) is not
considered a new unit. Exhibit I–4
below provides several examples and
whether these hypothetical units will be
defined as new or existing units.
EXHIBIT I–4—EXAMPLES OF NEW AND EXISTING UNITS AT EXISTING ELECTRIC GENERATION FACILITIES
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Examples of new units at an existing facility
Examples of existing units
A unit that is constructed at a stand-alone location at an existing facility
regardless of any plans to retire any other unit at the facility in the future.
A unit that is repowered or undergoes significant modifications.
A retrofitted with a new boiler or fuel type.
12 EPA studied naval vessels and cruise ships as
part of its developing a general NPDES permit for
discharges from oceangoing vessels. (For more
information, see https://cfpub.epa.gov/npdes/
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home.cfm?program_id=350.) EPA studied offshore
seafood processing facilities and oil and gas
exploration facilities in the 316(b) Phase III rule.
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13 As discussed in today’s preamble, requirements
for new offshore facilities that were set forth in the
Phase III rule remain in effect.
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2. Manufacturers
At manufacturing facilities that
generate electricity onsite, the previous
discussion of how to define new units
at existing electric generating facilities
generally applies. Some manufacturers
employ different industrial processes
than an electric generator and therefore
have different industrial equipment
(including cooling systems). In
particular, manufacturers may not use a
steam condenser or steam turbine for
their industrial processes, making the
definition for ‘‘repowering’’ above
inappropriate for manufacturing
facilities. However, manufacturers may
have opportunities to reuse cooling
water that power plants do not, and in
site visits, EPA found many
manufacturers have conducted energy
and water audits resulting in significant
reductions in water withdrawals. The
final rule provides for manufacturers to
receive credit for such reductions in
fresh water withdrawals.
It is not as easy to identify a similar
conceptual approach for defining new
manufacturing units at existing
manufacturing facilities because waste
heat can be generated from a variety of
sources including exothermic processes,
product heating and cooling, and the
processing, handling, treating, or
disposal of feed streams, waste streams,
by-products, and recycled components.
Sources may include direct cooling
transferred across an inert material (e.g.,
heat exchanger, steam condenser),
indirect cooling using a working fluid
(e.g., chillers, refrigeration), or contact
cooling where cooling water comes into
direct contact with a product or process
stream.14 Unlike electric generating
units where the majority of cooling
water comes from a single process
source (the steam condenser),
manufacturing units may include many
separate non-contact or contact cooling
water sources dispersed throughout the
production processes and the facility.
Thus, a definition for manufacturing
units must take into consideration a
broader category of cooling water
sources.
For power generators, the term
‘‘generating unit’’ is quite clear since
there is only one product (electricity),
the non-contact cooling water
predominantly comes from one source,
and the application of the term is well
understood in the industry. But for
some manufacturing facilities, it may be
unclear what constitutes a ‘‘unit’’ since
manufacturing processes can involve
numerous vertically integrated
processes or production steps that may
involve intermediate products. For
example, a unit could encompass an
entire series of production steps (start to
finish) or simply the individual steps.
Also, there may be ancillary support
equipment that serves various functions
and it is not clear whether this will be
considered a unit or part of a unit. For
example, a petroleum refiner will
typically include various processes such
as distillation, cracking, hydrotreating,
coking, reforming, and different types of
various products. Various intermediate
products from these processes may be
directly transported (piped) from one
process to another or stored and some
may be sold. And because various
intermediate and final process products
may be blended into different products,
differentiating units on a product or
intermediate product basis may not
provide clear distinctions.
For these reasons EPA has defined
new unit to simply mean a new stand-
48311
alone unit. A new unit may include one
or more distinct production lines that
are added to increase product output
and operate parallel to and
independently of existing production
equipment. A new unit does not include
the replacement or rebuilding of one or
more distinct production lines or
distinct processes involving the
replacement of the majority of the waste
heat producing equipment that serves as
sources of non-contact cooling water
and the majority of the heat exchanging
equipment that contributes heat to the
non-contact cooling water. Such
modifications alone do not render the
unit a new unit. A unit undergoing such
modifications would continue to be
considered an existing unit and would
be regulated under the existing unit
provisions of this rule. This definition
therefore does not impose any
disincentives for the replacement/
upgrade of individual components or
ancillary equipment alone.
Exhibit I–5 below provides several
examples of whether these hypothetical
units are defined as new or existing
units. As noted above, the Director has
broad discretion to assess the scope of
any modifications at the manufacturing
facility and to determine whether the
new construction comprises a standalone unit. For the purposes of today’s
final rule, the Director does not need to
address whether the stand-alone unit is
for the same general industrial
purposes, or whether the new unit is a
replacement unit. The key factors in
assessing whether a unit will be defined
as new lies with whether the
construction results in a stand-alone
unit.
EXHIBIT I–5—EXAMPLES OF NEW AND EXISTING UNITS AT MANUFACTURERS
Examples of existing units at an existing facility
A unit that is constructed at a stand-alone location at an existing facility
(either adjacent to existing units or on newly acquired or developed
property) regardless of any plans to retire any other unit at the facility
in the future.
A unit that is constructed adjacent to an existing unit for the same industrial activity (such as expanding the production output by building
a second unit as a stand-alone unit next to the existing unit).
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Examples of new units at an existing facility
A unit where only the waste heat generating process equipment or the
cooling system equipment is replaced.
K. Amendments Related to the Phase I
Rule
EPA is making limited changes to the
Phase I rule at 40 CFR Part 125 Subpart
I. The changes fall into two categories.
14 Note that EPA did not include the contact
cooling category as part of its analysis of possible
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A unit where modifications are made to the waste heat generating
process equipment or the cooling system (e.g., optimization, repairs,
upgrades to operational elements).
Replacement or upgrade of ancillary equipment (e.g., pumps, motors,
HVAC, etc.).
The first is deleting the provision in the
Phase I rule that would allow a facility
to demonstrate compliance with the
Phase I BTA requirements in whole or
in part through restoration measures.
This change responds to the decision of
the U.S. Court of Appeals for the Second
Circuit, which remanded these
provisions to EPA because it concluded
that the statute did not authorize
closed-cycle recirculating system requirements but
contact cooling water does nonetheless fall within
the definition of cooling water at § 125.92.
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restoration measures to comply with
CWA section 316(b) requirements. The
second category of changes reflects
technical corrections or errors that do
not change the substance of the Phase I
rule. EPA has not reopened any other
aspects of the Phase I rule other than the
provisions specifically noted here.
1. Restoration Provisions Not
Authorized
The Phase I final rule established two
compliance tracks. Track I requires
facilities to restrict intake flow and
velocity. Track II gives a facility the
option of demonstrating to the Director
that the control measures it employs
will reduce the level of adverse
environmental impact to a comparable
level to what would be achieved by
meeting the Track I requirements. As
part of this demonstration, Track II
originally allowed a facility to make use
of restoration measures. The
Comprehensive Demonstration Study
allowed a quantitative or qualitative
demonstration that restoration measures
would meet, in whole or in part, the
performance levels of Track I. Similarly,
the Verification Monitoring Plan could
be tailored to verify that the restoration
measures would maintain the fish and
shellfish in the waterbody at a
substantially similar level to that which
would be achieved under Track I. See
66 FR 65280–65281, December 18, 2001.
Upon legal challenge, the Second
Circuit Court concluded that EPA
exceeded its authority by allowing new
facilities to comply with CWA section
316(b) through restoration measures,
and remanded that aspect of the rule to
EPA. The Supreme Court did not grant
the petitions for writs of certiorari
concerning restoration provisions.
Today’s final rule amends Phase I to
remove those provisions in §§ 125.84(d)
and 125.89(b)(1)(ii) authorizing
restoration measures in conformance
with the Second’s Circuit’s decision.
Today’s rule also specifically deletes
permit application requirements
contained in the Comprehensive
Demonstration Study at
§ 125.86(c)(2)(ii); evaluation of proposed
restoration measures at
§ 125.86(c)(2)(iv)(C); and verification
monitoring requirements at
§ 125.86(c)(2)(iv)(D)(2) that are specific
to restoration. EPA acknowledges these
changes might reduce the alternatives
available to some Phase I facilities. EPA
notes, however, that the deletion of
restoration measures does not otherwise
alter the availability of Track II. In any
event, EPA’s determination of BTA for
Phase I did not presume reliance on the
restoration provisions, and the deletion
of restoration measures in no way alters
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the Agency’s BTA determination for
Phase I facilities.
2. Corrections to Subpart I
Today’s final rule changes the
applicability of the technical
requirements at § 125.84 and permit
application requirements at § 125.86
statement to match the applicability
statement at § 125.81(a)(3). The
applicability in all three instances
should specify DIF or withdrawals
‘‘greater’’ than the specified value of 2
mgd. See Basis for the Final Regulation
at 66 FR 65270, December 18, 2001.
Today’s rule also corrects the source
waterbody flow information submission
requirements. Track I requirements at
§ 125.84(b)(3) apply to new facilities
that withdraw equal to or greater than
10 mgd. Track I requirements at
§ 125.84(c)(2) apply to facilities that
withdraw less than 10 mgd. The source
waterbody flow information under
§ 125.86(b)(3) requires a facility to
demonstrate it has met the flow
requirements of both §§ 125.84(b)(3)
‘‘and’’ 125.84(c)(2). However, a facility
cannot be subject to both §§ 125.84(b)(3)
and 125.84(c)(2) at the same time.
Accordingly, the word ‘‘and’’ should
read as ‘‘or’’ in § 125.86(b)(3).
In addition, today’s final rule corrects
the permit application requirement for
the Source Water Biological
Characterization at § 122.21(r)(4).
Accordingly, references to the Source
Water Biological Characterization
should read as (r)(4). However, the
references to the Source Water
Biological Characterization at
§ 125.86(b)(4)(iii), at § 125.87(a), and at
§ 125.87(a)(2) incorrectly refer to
§ 122.21(r)(3) and are thus being
corrected.
II. Legal Authority for and Background
of the Final Regulation
A. Legal Authority
Today’s final rule is issued under the
authority of Clean Water Act sections
101, 301, 304, 308, 316, 401, 402, 501,
and 510, 33 U.S.C. 1251, 1311, 1314,
1318, 1326, 1341, 1342, 1361, and 1370.
B. Purpose of the Regulation
The purpose of today’s rule is to
reduce impingement and entrainment of
fish, shellfish and other aquatic
organisms at cooling water intake
structures. Today’s rule establishes
national requirements for cooling water
intake structures at existing facilities
under section 316(b) of the CWA. That
section provides that any standard
established pursuant to CWA sections
301 or 306 and applicable to a point
source must require that the location,
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design, construction, and capacity of
cooling water intake structures reflect
the BTA for minimizing adverse
environmental impact. Today’s rule
establishes requirements applicable to
all existing power-generating facilities
and existing manufacturing and
industrial facilities that are point
sources, that have a DIF of greater than
2 mgd from waters of the United States,
and use at least 25 percent of the water
they withdraw exclusively for cooling
purposes on an actual intake flow basis.
In addition, EPA is today also making
minor changes to its earlier rule
establishing section 316(b) requirements
for new facilities. Specifically, EPA is
removing a provision that would have
allowed a restoration-based alternative
for complying with performance
standards as well as the associated
monitoring and other requirements for
demonstrating compliance.
C. Background
1. The Clean Water Act
a. General
The Federal Water Pollution Control
Act, also known as the CWA, 33 U.S.C.
1251 et seq., seeks to ‘‘restore and
maintain the chemical, physical, and
biological integrity of the nation’s
waters.’’ 33 U.S.C. 1251(a). Among the
goals of the Act is, wherever attainable,
an interim goal of water quality which
provides for the protection and
propagation of fish, shellfish, and
wildlife and provides for recreation in
and on the water. 33 U.S.C. 1251(a)(2).
In furtherance of these objectives, the
CWA establishes a comprehensive
regulatory program, key elements of
which are (1) a prohibition on the
discharge of pollutants from point
sources to waters of the United States,
except in compliance with the statute
and (2) authority for EPA or authorized
States or Tribes to issue NPDES permits
that authorize and regulate the
discharge of pollutants.
CWA section 402 authorizes EPA (or
an authorized State or Tribe) to issue an
NPDES permit to any person
discharging any pollutant or
combination of pollutants from a point
source into waters of the United States.
Forty-six States and one U.S. territory
are authorized under section 402(b) to
administer the NPDES permitting
program. NPDES permits restrict the
types and amounts of pollutants,
including heat, that may be discharged
from various industrial, commercial,
and other sources of wastewater. These
permits control the discharge of
pollutants by requiring dischargers to
meet technology-based and possibly
water-quality-based effluent limitations.
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Under section 316(b), NPDES permits
are required to contain conditions to
implement the requirements of section
316(b).
CWA section 510 provides that,
except as provided in the CWA, nothing
will preclude or deny the right of any
State (or political subdivision thereof) to
adopt or enforce any requirement
respecting control or abatement of
pollution; except that if a limitation,
prohibition or standard of performance
is in effect under the CWA, such State
may not adopt any other limitation,
prohibition, or standard of performance
which is less stringent than the
limitation, prohibition, or standard of
performance under the Act. EPA
interprets this to reserve for the States
authority to implement requirements
that are more stringent than the Federal
requirements under state law. PUD No.
1 of Jefferson County v. Washington
Dep’t of Ecology, 511 U.S. 700, 705
(1994). New York and California have
enacted State requirements that are at
least as stringent as those of the final
rule, and therefore, EPA has analyzed
facilities in those States that are subject
to those State requirements as already
complying with the final rule.15 Those
facilities still must comply with the
administrative requirements of the final
rule.
CWA sections 301, 304, and 306
require that EPA develop technologybased effluent limitations guidelines
and new source performance standards
that are used as the basis for discharge
requirements in wastewater discharge
permits. EPA develops these effluent
limitations guidelines and standards for
categories of industrial dischargers on
the basis of the pollutants of concern
discharged by the industry, the degree
of control that can be attained using
various levels of pollution control
technology appropriate for each
industrial process or subcategory,
consideration of various economic tests
implemented under the authority of the
CWA for each level of control, and other
factors identified in CWA sections 304
and 306 (such as non-water quality
environmental impacts including energy
impacts). EPA has promulgated
regulations setting effluent limitations
guidelines and standards under CWA
sections 301, 304, and 306 for 57
industry categories. See 40 CFR parts
405 through 471. EPA has established
effluent limitations guidelines and
standards that apply to the industry
categories that are the largest users of
cooling water (e.g., steam electric power
15 For example, California policy addressing 19
coastal power plants would not affect the
compliance costs of inland facilities.
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generation, paper and allied products,
petroleum refining, iron and steel
manufacturing, and chemicals and
allied products), as well as many other
industrial categories that may include
facilities subject to this final rule.
b. Section 316(b)
Section 316(b) states, in full,
Any standard established pursuant to
section 301 or section 306 of [the Clean
Water] Act and applicable to a point source
shall require that the location, design,
construction, and capacity of cooling water
intake structures reflect the best technology
available for minimizing adverse
environmental impact.
33 U.S.C. 1326(b). This provision is
unique among CWA provisions because
it addresses the adverse environmental
impact caused specifically by the intake
of cooling water, in contrast to other
provisions of the Act that regulate the
discharge of pollutants into waters of
the United States.
The CWA does not further define the
substantive standard specified in
section 316(b)—‘‘best technology
available for minimizing adverse
environmental impact’’ (BTA). 33 U.S.C.
1326(b). The standard that cooling water
intake structures must achieve under
section 316(b)—BTA—is a different
standard from those prescribed under
sections 301 and 306 of the Act.
Riverkeeper, Inc. v. EPA, 358 F.3d 174
(2d Cir. 2004). Moreover, unlike
sections 304 and 306, section 316(b)
does not set forth the specific factors
that the EPA must consider in
determining BTA. BTA is ‘‘the only
substantive statutory requirement
explicitly applicable to the intake
structure regulations.’’ Id. at 186. Unlike
other provisions of the Act, section
316(b) standards are not subject to a
‘‘host’’ of other requirements or
limitations. Ibid. There is no
‘‘elucidating language applicable to the
BTA test.’’ Entergy Corp. v. Riverkeeper,
Inc., 556 U.S. 208, 221 (2009).16
Section 316(b) does, however, crossreference sections 301 and 306 of the
CWA by stating that any standards
established pursuant to those sections
also require that cooling water intake
structures reflect BTA. Ibid. This cross
reference, in the view of the Second
Circuit, is an invitation, not a
straitjacket. EPA ‘‘may’’ look to the
referenced sections in discerning what
factors Congress intended EPA to
consider in determining BTA.
16 Included in an appendix to the decision is a
table comparing CWA statutory standards under
301, 306 and 316(b), the table. In the column
headed ‘‘Statutorily Mandated Factors,’’ for section
316(b), the table states ‘‘N/A.’’
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Because section 316(b) refers to sections
301 and 306 but provides a different standard
(‘‘best technology available for minimizing
adverse environmental impact’’ instead of,
for example, ‘‘best available demonstrated
control technology’’) and does not explicitly
provide that regulations pursuant to section
316(b) are subject to the requirements of
sections 301 and 306, we think it is
permissible for the EPA to look to those
sections for guidance but to decide that not
every statutory directive contained therein is
applicable to the Rule.
The terse statutory description of BTA
and the absence of any prescribed
statutory factors for consideration in
determining BTA suggest that Congress
delegated EPA significant rulemaking
discretion in this area.17
As noted, in contrast to effluent
limitations guidelines and standards,
the CWA does not describe the factors
to be considered in establishing section
316(b) substantive performance
requirements that reflect the ‘‘best
technology available for minimizing
adverse environmental impact’’ nor
does it require that EPA develop
uniform nationally applicable
performance requirements through rule
making.
The U.S. Supreme Court has,
however, recently provided guidance, in
Entergy Corp. v. Riverkeeper, Inc., in
interpreting section 316(b) and what
factors EPA may consider in its
standard-setting. That decision
addressed the question of whether CWA
section 316(b) authorizes EPA to
compare costs and benefits of various
technologies when setting national
performance standards for cooling water
intake structures under CWA section
316(b). In overturning EPA’s earlier rule
to establish section 316(b) requirements
for existing facilities, the Second Circuit
held that balancing costs and benefits
was an impermissible factor for
standard setting under section 316(b).
The Supreme Court reversed and
remanded the Second Circuit ruling in
a 6–3 opinion authored by Justice
Scalia. The Court held that it is
permissible for EPA to consider a costbenefit analysis in setting national
performance standards for cooling water
intake structures under section 316(b).
17 The Second Circuit has noted the limited
legislative history for section 316(b). ‘‘This paucity
of legislative history, when measured against the
volumes of drafts and speeches devoted to other
aspects of the 1972 amendments, and when
combined with the brevity of the provision itself,
counsels against imputing much specific intent to
Congress beyond the section’s words themselves.
To the extent the provision is silent on issues to
which other sections speak, we hesitate to draw the
negative inference that the brevity of section 316(b)
reflects an intention to limit the EPA’s authority
rather than a desire to delegate significant
rulemaking authority to the Agency.’’ Id. at 187.
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The Court held that EPA has the
discretion to consider costs and benefits
under section 316(b) but is not required
to do so. 556 U.S. 208, 222–23.
The Court’s discussion of the
language of section 316(b)—section
316(b) is ‘‘unencumbered by specified
statutory factors’’—and its critique of
the Second Circuit’s decision affirms
EPA’s broad discretion to consider a
number of factors in standard setting
under section 316(b). While the
Supreme Court’s decision is limited to
whether or not EPA may properly
consider one factor (cost/benefit
analysis) under section 316(b), the
language also indicates that EPA has
wide discretion in considering other
factors that it deems relevant to 316(b)
standard setting. 556 U.S. 208, 222
(2009). (‘‘It is eminently reasonable to
conclude that § 1326b’s silence is meant
to convey nothing more than a refusal
to tie the agency’s hands as to whether
cost-benefit analysis should be used,
and if so to what degree.’’).
Regarding the other factors EPA may,
but is not mandated to, consider, as
noted above, section 316(b) cross
references CWA sections 301 and 306 by
requiring that any standards established
pursuant to those sections also must
require that the location, design,
construction and capacity of intake
structures reflect BTA. Following the
decisions of the Second Circuit in
reviewing both the Phase I and Phase II
rules, EPA has interpreted the cross
reference as authorizing consideration
of the factors considered under those
provisions to help guide section 316(b)
rulemaking without determining that
each of those factors is applicable to this
rule. Thus, for example, section 306
directs EPA to establish performance
standards for new sources based on the
BADT (best available demonstrated
control technology). 33 U.S.C.
1316(a)(1). In establishing BADT, EPA
‘‘shall take into consideration the cost of
achieving such effluent reduction, and
any non-water quality environmental
impact and energy requirements.’’ 33
U.S.C. 1316(b)(2)(B).
Similarly, CWA section 301 requires
EPA, in establishing standards known as
effluent limitations guidelines, to
consider specified factors. For a
complete discussion of factors
considered in establishing section 301
effluent limits, see 76 FR 22178–22179,
April 20, 2011. But, EPA in establishing
section 316(b) standards is not
constrained in what factors it considers
or bound by any statutorily prescribed
tests as is the case with sections 301 and
306. Consequently, while section 316(b)
expressly refers to section 301 and 306,
and, while it shares some of the same
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words used in sections 301(b) and 306,
its language is different.18 These
differences in the statutory descriptions,
coupled with the brevity of section
316(b) itself, prompt EPA to examine
the factors described in section 301, 306
and, ultimately, section 304 where
relevant in EPA’s determination of the
‘‘best technology available to minimize
adverse environmental impact’’ of
cooling water for intake structures for
existing facilities.
As noted above, there are significant
differences between section 316(b) and
sections 301, 304 and 306. See
Riverkeeper, Inc. v. United States
Environmental Protection Agency (2nd
Cir. Feb. 3, 2004) (‘‘not every statutory
directive contained [in sections 301 and
306] is applicable’’ to a section 316(b)
rulemaking). Moreover, as the Supreme
Court recognized, while the provisions
governing the discharge of toxic
pollutants must require the elimination
of discharges if technically and
economically achievable, section 316(b)
has the less ambitious goal of
‘‘minimizing adverse environmental
impact.’’ 556 U.S. at 219. In contrast to
the effluent limitations provisions, the
object of the best technology available is
explicitly articulated by reference to the
receiving water: To minimize adverse
environmental impact in the waters
from which cooling water is withdrawn.
This difference is reflected in EPA’s past
practices in implementing sections 301,
304, as contrasted with 316(b). For
example, EPA has established BAT
effluent limitations guidelines and new
source performance standards on the
basis of the efficacy of one or more
technologies to reduce pollutants in
wastewater in relation to their costs
without necessarily considering the
impact on the receiving waters. This
contrasts to 316(b) requirements which
historically have been developed on a
site-specific basis, where EPA has
considered the costs of technologies in
relation to the benefits of minimizing
adverse environmental impact in
establishing 316(b) requirements. In Re
Public Service Co. of New Hampshire,
10 ERC 1257 (June 17, 1977); In Re
18 Compare ‘‘best technology available for
minimizing adverse environmental impacts’’ with
‘‘best practicable control technology currently
available’’ (301(b)(1)A)), ‘‘best conventional
pollutant control technology (301(b)(2)(E)), ‘‘best
available technology economically achievable’’
(301(b)(2)(A)), and best available demonstrated
control technology, (306(b)(1)(B)). Section 316(b),
section 301(b)(1)(A)—the BPT provision—section
301(b)(2)(E)—the BCT provision—section
301(b)(1)(B)—the BAT provision—and section
306(b)(2)(E). All include the terms ‘‘best,’’
‘‘technology,’’ and ‘‘available,’’ but none also
include the modifying phrase ‘‘for minimizing
adverse environmental impacts,’’ found in section
316(b). See 33 U.S.C. 1311(b)(1)(A) and (2)(A).
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Public Service Co. of New Hampshire, 1
EBAD 455 (Aug. 4, 1978); Seacoast AntiPollution League v. Costle, 597 F. 2d
306 (1st Cir. 1979). EPA concluded that,
because both section 301 and 306 are
expressly cross-referenced in section
316(b), EPA could reasonably interpret
section 316(b) as authorizing
consideration, where appropriate, of the
same factors, including costs. EPA
stresses that it may therefore consider
some of the same factors, even if it is not
legally required to consider them in the
same way.
2. Early Litigation History
On January 19, 1993, a group of
individuals and environmental
organizations 19 filed, under CWA
section 505(a)(2), 33 U.S.C. 1365(a)(2), a
complaint in Cronin, et. al. v. Reilly, 93
Civ. 314 (LTS) (S.D.N.Y.). The plaintiffs
alleged that EPA had failed to perform
a nondiscretionary duty to issue
regulations implementing CWA section
316(b), 33 U.S.C. 1326(b). In 1995, EPA
and the plaintiffs executed a consent
decree in the case. As amended, it
provided for EPA to implement CWA
section 316(b) by prescribed dates in the
three separate rule-making proceedings.
Phase I concerned cooling water intake
structures at new facilities, Phase II
existing power plants using large
volumes of cooling water and Phase III
for existing smaller-flow power plants
and factories in at least four industrial
sectors (pulp and paper making,
petroleum and coal products
manufacturing, chemical and allied
manufacturing, and primary metal
manufacturing). EPA promulgated the
Phase I rule in December, 2001, the
Phase II rule in July, 2004 and the Phase
III rule in June, 2006.
On November 17, 2006, some of the
same environmental organizations in
the Cronin case filed a second
complaint, amended on January 19,
2007, in Riverkeeper, et al. v. EPA, 06
Civ. 12987 (S.D.N.Y.) asserting that
EPA’s Phase III rule failed to discharge
EPA’s duty under CWA section 316(b).
On August 14, 2008, EPA filed a
motion to terminate the Cronin
proceeding because it had discharged its
19 The plaintiffs are the following: Riverkeeper,
Inc.; Alex Matthiessen, a/k/a The Hudson
Riverkeeper; Maya K. Van Rossum, a/k/a The
Delaware Riverkeeper; Terrance E. Backer, a/k/a
The Soundkeeper; John Torgan, a/k/a The
Narragansett BayKeeper; Joseph E. Payne, a/k/a The
Casco BayKeeper; Leo O’Brien, a/k/a the San
Francisco BayKeeper; Sue Joerger, a/k/a The Puget
Soundkeeper; Steven E. Fleischli, a/k/a The Santa
Monica BayKeeper; Andrew Willner, a/k/a The
New York/New Jersey Baykeeper; The Long Island
Soundkeeper Fund, Inc.; The New York Coastal
Fishermen’s Association, Inc.; and The American
Littoral Society, Inc.
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obligations (to take final action) under
the decree with respect to the 2004
Phase II and 2006 Phase III rulemakings.
Subsequently, EPA entered into a
settlement with the plaintiffs in both
lawsuits. Under the settlement
agreement, EPA agreed to sign a notice
of a proposed rulemaking implementing
CWA section 316(b) at existing facilities
no later than March 14, 2011, and to
sign a notice taking final action on the
proposed rule no later than July 27,
2012. Plaintiffs agreed to seek dismissal
of both their suits, subject to a request
to reopen the Cronin proceeding if EPA
failed to meet the agreed deadlines. The
district courts have now entered orders
of dismissal. On March 11, 2011, the
parties agreed to an amendment to the
settlement agreement to extend the date
for proposal to March 28, 2011. On July
17, 2012, the parties agreed to an
amendment to the settlement agreement
to extend the date for the final rule to
June 27, 2013. On June 21, 2013, the
parties agreed to extend the date to
November 4, 2013, to accommodate
completion of formal consultation under
the Endangered Species Act. In part due
to the government shutdown, on
November 12, 2013, the parties agreed
to extend the date to January 14, 2014.
On February 10, 2014, to continue
progress on the Endangered Species Act
(ESA) consultation process, the parties
agreed to extend the date to April 17,
2014. Finally, on April 23 2014, in a
conference with the court EPA informed
the judge that the EPA and the Services
would complete the ESA consultation,
so that the EPA would sign the rule by
May 16, 2014. The court entered an
order provisionally reinstating the case
if EPA failed to inform the court by May
19, 2014 that it had taken the
contemplated action. On May 19, 2014,
the Administrator signed this notice for
publication in the Federal Register.
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3. Prior EPA Actions To Address
Cooling Water Intake Structures
a. 1976 Rulemaking
In April 1976, EPA promulgated
regulations under section 316(b) that
addressed cooling water intake
structures. 41 FR 17387, April 26, 1976.
The rule added a new § 401.14 to 40
CFR Chapter I that reiterated the
requirements of CWA section 316(b). It
also added a new part 402, which
included three sections: (1) § 402.10
(Applicability), (2) § 402.11 (Specialized
definitions), and (3) § 402.12 (Best
technology available for cooling water
intake structures). Section 402.10 stated
that the provisions of part 402 applied
to ‘‘cooling water intake structures for
point sources for which effluent
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limitations are established pursuant to
section 301 or standards of performance
are established pursuant to section 306
of the Act.’’ Section 402.11 defined the
terms cooling water intake structure,
location, design, construction, capacity,
and Development Document. Section
402.12 included the following language:
‘‘The information contained in the
Development Document shall be considered
in determining whether the location, design,
construction, and capacity of a cooling water
intake structure of a point source subject to
standards established under section 301 or
306 reflect the best technology available for
minimizing adverse environmental impact.’’
In 1977, electric utility companies
challenged those regulations, arguing
that EPA had failed to comply with the
requirements of the Administrative
Procedure Act in promulgating the rule.
Specifically, the utilities argued that
EPA had violated the Administrative
Procedure Act in promulgating
regulations mandating consideration of
the information in the Development
Document in establishing 316(b)
conditions in individual NPDES permits
because EPA had neither published the
Development Document in the Federal
Register nor properly incorporated the
document into the rule by reference.
The U.S. Court of Appeals for the
Fourth Circuit agreed. The court
determined that the information in the
Development Document was part of the
substance of a regulation imposing
specific obligations in mandatory terms.
As such, the information must either be
published in the Federal Register in its
entirety or to be reasonably available
and properly incorporated by reference
under Federal Register requirements.
The court explained it did not object to
site-specific implementation of the
section 316(b) requirements (‘‘[w]hile
we emphasize we do not fault EPA for
its point source by point source
application’’), it did require EPA to
‘‘devise a less uncertain method of
advising those affected of the conditions
by which they are to be bound.’’
Appalachian Power Co. v. Train, 566
F.2d 451, 457 (4th Cir. 1977). Without
reaching the merits of the regulations
themselves, the court remanded the
rule. EPA later withdrew part 402. (See
44 FR 32956, June 7, 1979.) Section
402.10, however, now codified at
§ 401.14, remains in effect.
Following the Fourth Circuit remand
of EPA’s section 316(b) regulations in
1977, NPDES permit authorities have
made decisions implementing CWA
section 316(b) and § 401.14 without the
direction of a national rule. EPA
published draft guidance addressing
section 316(b) implementation in 1977.
See Draft Guidance for Evaluating the
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Adverse Impact of Cooling Water Intake
Structures on the Aquatic Environment:
Section 316(b) Public Law 92–500 (U.S.
EPA 1977). That draft guidance
describes the studies recommended for
evaluating the impact of cooling water
intake structures on the aquatic
environment and recommends a basis
for determining the BTA for minimizing
adverse environmental impact. The
1977 section 316(b) draft guidance
states, ‘‘[t]he environmental-intake
interactions in question are highly sitespecific and the decision as to best
technology available for intake design,
location, construction, and capacity
must be made on a case-by-case basis’’
(Section 316(b) Draft Guidance, U.S.
EPA 1977, p. 4). This site-specific
approach was also consistent with the
approach described in the 1976
Development Document referenced in
the remanded regulation. (See DCN 1–
1056–TC from the Phase I docket.) The
1977 section 316(b) draft guidance
suggested a general process for
developing information needed to
support section 316(b) decisions and
presenting that information to the
Director. The process involved
developing a site-specific study of the
environmental effects associated with
each facility that uses one or more
cooling water intake structures, and
consideration of that study by the
Director in determining whether the
facility must make any changes for
minimizing adverse environmental
impact. Under this framework, the
Director determined whether
appropriate studies have been
performed, whether a given facility has
minimized adverse environmental
impact, and what, if any, technologies
may be required.
b. Phase I—New Facility Rule
i. Rulemaking
On November 9, 2001, EPA took final
action on regulations governing cooling
water intake structures at new facilities.
See 66 FR 65255, December 18, 2001.
On December 26, 2002, EPA made
minor changes to the Phase I
regulations. 67 FR 78947. The final
Phase I new facility rule (40 CFR part
125, Subpart I) establishes requirements
applicable to the location, design,
construction, and capacity of cooling
water intake structures at new facilities
that have a design capacity to withdraw
greater than 2 mgd and use at least 25
percent of the water they withdraw
solely for cooling purposes on an actual
intake flow basis.
In the new facility rule, EPA adopted
a two-track approach. Under Track I,
facilities that withdraw equal to or
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greater than 10 mgd were required to
meet three requirements. First, the
intake flow of the cooling water intake
structure is restricted, at a minimum, to
a level commensurate with that which
could be attained by use of a closedcycle, recirculating cooling system.
Second, the design through-screen
intake velocity is restricted to 0.5 fps
(foot per second). Third, the total
quantity of intake is restricted to a
proportion of the mean annual flow of
a freshwater river or stream, or to a level
necessary to maintain the natural
thermal stratification or turnover
patterns (where present) of a lake or
reservoir except in cases where the
disruption is beneficial, or to a
percentage of the tidal excursions of a
tidal river or estuary. Further, if there
are, for example, endangered or
threatened species stressed by a
facility’s intake structure, a facility that
would otherwise meet the applicable
performance requirements may have to
select and implement additional design
and construction or operational
measures to address impingement
mortality and entrainment if these
measures are inadequate to protect the
species. Facilities with greater than 2
mgd but less than 10 mgd flows are not
required to reduce intake flow to a level
commensurate with a closed-cycle,
recirculating cooling system, but they
must still meet specific operational
criteria.
Under Track II, a facility had the
opportunity to demonstrate to the
NPDES permitting authority (Director)
that the technologies it employs will
reduce the level of adverse
environmental impact to a comparable
level to what would be achieved by
meeting the Track I requirements for
restricting intake flow and velocity. In
making this demonstration, the
regulations allow a facility to rely on a
combination of measures in addition to
technology controls for reducing
impingement and entrainment to
achieve results equivalent to the Track
I intake flow and velocity requirements.
Among these measures, the rule would
have allowed restoration of the affected
waterbody through efforts such as
restocking fish and improving the
surrounding habitat to offset the adverse
effects that would otherwise be caused
by operating the intake structures. The
Second Circuit, in reviewing the new
facility rule, determined that section
316(b) did not authorize the use of
restoration measures in complying with
the EPA performance standard. (Note
that EPA is removing the provision
related to restoration measures from the
CFR in this rulemaking but has included
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the above description of the Phase I rule
for completeness.) For more
information, see Section I above.
In addition, under the Phase I rule,
the Director may establish less stringent
alternative requirements for a facility if
compliance with the Phase I standards
would result in compliance costs
wholly out of proportion to those EPA
considered in establishing the Phase I
requirements or would result in
significant adverse impacts on local air
quality, water resources, or local energy
markets.
EPA specifically excluded new
offshore oil and gas extraction facilities
from the Phase I new facility rule but
committed to consider establishing
requirements for such facilities in the
Phase III rulemaking. 66 FR 65338,
December 18, 2001.
ii. Subsequent Litigation
Various environmental and industry
groups challenged the Phase I rule. In
February 2004, the Second Circuit
sustained the entire rule except for the
restoration provision, ruling that
restoration was not a technology as
provided for in section 316(b). With
respect to the other provisions of the
rule, the court concluded the Phase I
rule was based on a reasonable
interpretation of the applicable statute
and sufficiently supported by the
record. Restoration provisions of the
rule were remanded to EPA for further
rulemaking consistent with the court’s
decision. Riverkeeper, Inc. v. EPA, 358
F.3d 174, 191 (2nd Cir., 2004). Today’s
rule removes the restoration provisions
from the Phase I rule. For more details,
see Chapter I of this preamble.
c. Phase II—Large Flow Existing Power
Plants
i. Rulemaking
On February 16, 2004, EPA took final
action on regulations governing cooling
water intake structures at certain
existing power-producing facilities. 69
FR 41576, July 9, 2004. The final 2004
Phase II rule applied to existing
facilities that are point sources; that, as
their primary activity, both generate and
transmit electric power or generate
electric power for sale or transmission;
that use or propose to use a cooling
water intake structure with a total DIF
of 50 mgd or more to withdraw water
from waters of the United States; and
that use at least 25 percent of the
withdrawn water exclusively for cooling
purposes on an actual intake flow basis.
In addition, power producers fitting the
description above were also subject to
the final 2004 Phase II rule even if they
obtain their cooling water from one or
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more independent suppliers of cooling
water. Such facilities were subject to the
rule if their supplier withdraws water
from waters of the United States even if
the supplier was not itself a 2004 Phase
II existing facility. EPA included this
provision to prevent circumvention of
the 2004 Phase II rule requirements by
a facility purchasing cooling water from
entities not otherwise subject to section
316(b).
The final 2004 Phase II rule and
preamble also clarified the definition of
an existing power-producing facility.
The 2004 Phase II rule defined an
existing facility as ‘‘any facility that
commenced construction as described
in § 122.29(b)(4) on or before January 17,
2002; and any modification of, or
addition of a unit at such a facility that
does not meet the definition of a new
facility at § 125.83.’’ Because the
definition of the term existing facility
was based in part on the Phase I
definition of the term new facility, the
preamble to the final 2004 Phase II rule
also clarified and provided some
examples of how the definition of
existing facility might apply to certain
changes at power-producing facilities.
Under the 2004 Phase II rule, EPA
established BTA performance standards
for the reduction of impingement
mortality and, under certain
circumstances, entrainment (see 69 FR
41590–41593, July 9, 2004). The
performance standards consisted of
ranges of reductions in impingement
mortality and, if applicable, entrainment
(e.g., reduce impingement mortality by
80 to 95 percent and/or entrainment by
60 to 90 percent) relative to a
calculation baseline that reflected the
level of impingement mortality and
entrainment that would occur absent
specific controls. These performance
standards were not based on a single
technology but, rather, on consideration
of a suite of technologies that EPA
determined were commercially
available and economically achievable
for the industries affected as a whole (69
FR 41598–41610, July 9, 2004). EPA
based the impingement mortality and
entrainment performance standards on a
suite of technologies because it found
no single technology to be effective at
all affected facilities. For impingement
standards, these technologies included
the following: (1) Fine- and wide-mesh
wedgewire screens, (2) barrier nets, (3)
modified screens and fish return
systems, (4) fish diversion systems, and
(5) fine-mesh traveling screens and fish
return systems. With regard to
entrainment reduction, these
technologies include the following: (1)
Aquatic filter barrier systems, (2) finemesh wedgewire screens, and (3) fine-
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mesh traveling screens with fish return
systems. Because EPA based the
performance standards on a
combination of technologies and
because of the uncertainty inherent in
predicting the efficacy of one or more of
these technologies as applied to
different facilities, EPA promulgated
these standards as ranges. Furthermore,
because the site-specific performance
was based on a comparison to a oncethrough system without any specific
controls on the shoreline near the
source waterbody (i.e., calculation
baseline, for more details see Section
III.B.1 of the preamble to the proposed
rule, 76 FR 22185, April 20, 2011), the
rule also allowed facilities to receive
credit toward meeting the performance
standards for impingement and
entrainment reduction associated with
alternative locations of their intakes
(e.g., deep water where fish and
shellfish were less abundant).
The types of performance standard
applicable to a facility (i.e., reductions
in impingement mortality only or both
impingement mortality and
entrainment) were based on several
factors, including the facility’s location
(i.e., source waterbody), rate of use
(capacity utilization rate), and the
proportion of the waterbody withdrawn.
The 2004 Phase II rule identified five
compliance alternatives to meet the
performance standards. A facility could
demonstrate to the Director one of the
following: (1) That it has already
reduced its flow commensurate with a
closed-cycle recirculating system (to
meet both impingement mortality and
entrainment), or that it has already
reduced its maximum through-screen
velocity to 0.5 fps or less (to meet the
impingement performance standard
only); (2) that its cooling water intake
structure configuration meets the
applicable performance standards; (3)
that it has selected design and
construction technologies, operational
measures, and/or restoration measures
that, in combination with any existing
design and construction technologies,
operational measures, and/or restoration
measures, meet the applicable
performance standards; (4) that it meets
the applicability criteria and has
installed and is properly operating and
maintaining a rule-specified and/or
approved State-specified design and
construction technology (i.e., submerged
cylindrical wedgewire screens) in
accordance with § 125.99(a) or an
alternative technology that meets the
appropriate performance standards and
is approved by the Director in
accordance with § 125.99(b); or (5) that
its costs of compliance would be
significantly greater than either the costs
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considered by the Administrator for a
like facility to meet the applicable
performance standards, or the benefits
of meeting the applicable performance
standards at the facility. Under the costcost comparison alternative, a Director
could determine that the cost of
compliance for a facility would be
significantly greater than the costs
considered by EPA in establishing the
applicable impingement mortality and
entrainment performance standards.
Similarly, under the cost-benefit
comparison alternative, a Director could
determine that the cost of compliance
for a facility would be significantly
greater than the benefits of complying
with the applicable performance
standards. If either of these
determinations were made, the Director
would have to make a site-specific
determination of BTA for minimizing
adverse environmental impact that came
as close as practicable to meeting the
applicable performance standards at a
cost that did not significantly exceed
either the costs EPA considered in
establishing these standards or the sitespecific benefits of meeting these
standards.
The final 2004 Phase II rule also
provided that a facility that chooses
specified compliance alternatives might
request that compliance with the
requirements of the rule be determined
on the basis of implementing a
Technology Installation and Operation
Plan (TIOP) that would indicate how the
facility would install and ensure the
efficacy, to the extent practicable, of
design and construction technologies,
and/or operational measures, and/or a
Restoration Plan. The rule also
established requirements for developing
and submitting a TIOP
(§ 125.95(b)(4)(ii)) and provisions that
specified how compliance could be
determined on the basis of
implementing a TIOP (§ 125.94(d)).
Under these provisions, a TIOP could be
requested in the first permit term, and
continued use of a TIOP could be
requested where a facility was in
compliance with such plan and/or its
Restoration Plan.
ii. Subsequent Litigation
Industry, environmental stakeholders,
and some States 20 challenged many
aspects of the 2004 Phase II regulations.
On January 25, 2007, the Second Circuit
(Riverkeeper, Inc. v. EPA, 475 F.3d 83,
(2d Cir., 2007)) upheld several
provisions of the 2004 Phase II rule and
20 Rhode Island, Connecticut, Delaware,
Massachusetts, New Jersey, and New York.
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48317
remanded others to EPA for further
rulemaking.
As noted above, for the 2004 Phase II
rule EPA did not select closed-cycle
cooling as BTA. Instead, EPA selected a
suite of technologies to reflect BTA,
including, for example, screens, aquatic
filter barriers, and barrier nets.
According to the chosen technologies,
EPA established national performance
standards for reducing impingement
mortality and entrainment of fish and
fish organisms but did not require the
use of any specific technology. Among
the aspects of the rule the Second
Circuit remanded for further
clarification was EPA’s decision to
reject closed-cycle cooling as BTA and
EPA’s determination of performance
ranges as BTA. In addition, the Second
Circuit found that, consistent with its
Phase I decision, restoration was not
authorized under the CWA as a
technology for BTA and that EPA’s costbenefit site-specific compliance
alternative was not in accord with the
CWA. There are also several issues for
which the court requested additional
clarification and some instances where
the court determined that EPA had
failed to provide adequate notice and
opportunity to comment on certain
provisions of the rule.
iii. Suspension
As a result of the decision in
Riverkeeper, Inc. v. EPA, 475 F.3d 83,
(2d Cir., 2007), EPA, on July 9, 2007 (72
FR 37107) suspended the requirements
for cooling water intake structures at
2004 Phase II existing facilities, pending
further rulemaking. Specifically, EPA
suspended the provisions in
§ 122.21(r)(1)(ii) and (r)(5), and part 125
Subpart J, with the exception of
§ 125.90(b). EPA explained that
suspending the 2004 Phase II
requirements was an appropriate
response to the Second Circuit’s
decision and that such action would
allow it to consider how to respond to
the remand. In addition, suspending the
2004 Phase II rule was responsive to the
concerns of the regulated community
and permitting agencies, both of whom
sought guidance regarding how to
proceed in light of the approaching
deadline for compliance with the
remanded rule. EPA’s suspension
clarified that pending further
rulemaking, permit requirements for
cooling water intake structures at 2004
Phase II facilities should be established
on a case-by-case, BPJ basis (see
§ 125.90(b)).
iv. Supreme Court Decision
Following the decision in the Second
Circuit, several industry group litigants
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petitioned the U.S. Supreme Court to
hear an appeal regarding several issues
in the case. Entergy Corp. v.
Riverkeeper, Inc. et al., S. Ct. No. 07–
588, et al. On April 14, 2008, the
Supreme Court granted the petitions for
writs of certiorari submitted by these
2004 Phase II litigants, but it limited its
review to the issue of whether section
316(b) authorizes EPA to compare costs
with benefits in determining BTA for
cooling water intake structures. The
Supreme Court held oral arguments in
this case on December 2, 2008, and
issued a decision on April 1, 2009. As
explained above, the Supreme Court
held that it is permissible for EPA to
rely on cost-benefit analysis in decision
making. The court indicated that the
phrase ‘‘best technology available for
minimizing adverse environmental
impact’’ does not unambiguously
preclude use of cost-benefit analysis in
decision making. 566 U.S. at 223(2009).
The ruling supports EPA’s discretion to
consider costs and benefits, but it
imposes no obligation on the Agency to
do so.
d. Phase III—Existing Power Plants
Below 50 mgd, Existing Manufacturing
Facilities, and New Offshore Oil and
Gas Facilities
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i. Rulemaking
On June 16, 2006, EPA published a
final Phase III rule that established
categorical regulations for new offshore
oil and gas extraction facilities that have
a DIF threshold of greater than 2 mgd
and that withdraw at least 25 percent of
the water exclusively for cooling
purposes on an actual intake flow basis.
The rule establishes requirements that
address intake velocity, proportionate
flow for sensitive locations, design and
construction technologies or operational
measures, monitoring and
recordkeeping, based on if a facility
employs a sea chest or not, and is fixed
or not. Like the Phase I rule, this rule
includes a Track II. In the Phase III rule,
EPA declined to establish national
standards for Phase III existing facilities.
Instead it concluded that CWA section
316(b) requirements for electric
generators with a DIF of less than 50
mgd and all existing manufacturing
facilities would continue to be
established on a case-by-case basis
under the NPDES permit program using
BPJ. (71 FR 35006, June 16, 2006).
ii. Subsequent Litigation
Following promulgation of the rule, a
number of parties filed petitions for
review that were subsequently
consolidated for hearing in the U.S.
Court of Appeals for the Fifth Circuit. In
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2009, EPA petitioned the Fifth Circuit to
remand to the Agency those parts of the
rule that applied to existing facilities.
Specifically, EPA requested remand of
those provisions in the Phase III rule
that establish 316(b) requirements at
electric generators with a DIF of less
than 50 mgd, and the provision
establishing requirements for existing
manufacturing facilities on a case-bycase basis using BPJ. This request did
not affect the Phase III rule requirements
that establish categorical regulations for
new offshore oil and gas extraction
facilities that have a DIF threshold of
greater than 2 mgd and that withdraw at
least 25 percent of the water exclusively
for cooling purposes on an actual intake
flow basis.
On July 23, 2010, the U.S. Court of
Appeals for the Fifth Circuit issued a
decision affirming the parts of Phase III
rule relating to new offshore oil and gas
facilities. The court granted EPA’s
motion to remand the rule with respect
to existing facilities. In sustaining the
requirements for new offshore oil and
gas facilities, the Fifth Circuit upheld
EPA’s decision not to use cost benefit
balancing in determining the
requirements for these new facilities.
III. Environmental Effects Associated
With Cooling Water Intake Structures
A. Introduction
Multiple types of adverse
environmental effects may be associated
with CWIS operations at regulated
facilities. Many facilities employ oncethrough cooling water systems that
impinge fishes and other aquatic
organisms on intake screens. Impinged
organisms may be killed, injured, or
weakened. In addition, early life stage
fish or planktonic organisms can be
entrained by the CWIS and subjected to
high velocity and pressure, increased
temperature, and chemical antibiofouling agents in the system. These
factors are highly lethal in most cases,
as early life stages of larvae are highly
sensitive and very unlikely to survive
entrainment. Even if an organism is
entrained as an egg and survives, its
chances of surviving beyond the larvae
stage are dramatically lower than eggs
that were never entrained. Thus, unless
measures to protect larvae are in place,
egg survival does not indicate that
adverse environmental impacts have
been avoided. Consistent with its
treatment of entrainment in past 316(b)
rules, EPA assumes for the purposes of
a national rule that 100 percent of
entrained organisms suffer mortality.
The effects of CWIS on aquatic
habitats and biota in the waterbody do
not occur in isolation from other
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ongoing physical, chemical, and
biological stressors. Anthropogenic
stressors may include: Degraded water
and sediment quality, low dissolved
oxygen (DO) levels, eutrophication,
fishing, channel or shoreline (habitat)
modification (intake structure and other
flood or storm controls), hydrologic
regime changes and invasive species.
For example, many aquatic organisms
subject to IM&E (impingement mortality
and entrainment) reside in impaired
(i.e., CWA 303(d) listed) waterbodies.
The effects of anthropogenic stressors
on biota may contribute to or compound
the impact of IM&E, depending on the
influence of location-specific factors. In
addition to stressors acting on biota near
a single CWIS, multiple CWISs and
facilities located in close proximity on
the same waterbody may have additive
or cumulative effects on aquatic
communities. And, although it is
difficult to measure, the compensatory
ability of an aquatic population, which
is the capacity for a species to increase
survival, growth, or reproduction rates
in response to decreased population, is
likely compromised by IM&E and the
cumulative impact of other stressors in
the environment over extended periods
of time.
B. Major Anthropogenic Stressors in
Aquatic Ecosystems
All ecosystems and their biota are
subject to natural variability in
environmental conditions (e.g., seasonal
cycles, foliage presence) as well as
periodic large-scale disturbances (e.g.,
drought, flood, fire). In contrast,
anthropogenic stressors tend to be more
chronic in nature and can often lead to
long-term environmental degradation
associated with decreased biodiversity,
reduced primary and secondary
production, and a lowered ecosystem
resiliency (i.e., ability of the ecosystem
to recover to its original state from
perturbations).21 Several of the more
important anthropogenic stressors are
discussed below, with CWIS-related
impacts considered as a separate
category of stress.
1. Habitat Loss
Structural aquatic habitat is generally
recognized as the most significant
determinant of the nature and
composition of aquatic communities.
Most 316(b) facilities have been built on
shoreline locations where industrial
buildings, roadways, canals,
impoundments, and other water storage
or conveyance structures have been
21 Rapport, D. J., & Whitford, W. G. (1999). How
Ecosystems Respond to Stress. BioScience, 49(3),
193–203. See DCN 10–4871.
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constructed at the cost of terrestrial,
aquatic, and wetland habitats. The main
impacts of aquatic habitat loss are a
reduction in the number of fish in the
environment, a concentration of fishery
spawning and nursery areas in fewer
locations, shifts in species dominance
based on available habitat and local
extirpation of historical fish species.
Habitat loss in shoreline areas
exacerbates the effect of CWIS losses
because many fish species affected by
IM&E rely heavily on coastal wetlands
as nursery areas.
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2. Water Quality and Impaired Waters
Poor water quality is a major stressor
of aquatic biota and habitats. Degraded
surface water and sediment
contaminants reflect both current and
past industrial, agricultural and urban
land use and disposal practices. Poor
water quality can limit the numbers,
composition, and distribution of fish
and invertebrates; reduce spawning
effort and growth rates; select for
pollution-tolerant species; cause
periodic fishkills; or result in adverse
bioaccumulative effects to piscivorous
wildlife.
EPA has determined that the majority
of surveyed facilities, including 71
percent of electric generators and 79
percent of sampled manufacturing
facilities, are within two miles of an
impaired (i.e., CWA section 303(d)listed) waterbody.22 These impairments
are caused by a variety of chemical,
physical, and biological factors. These
factors include biological stressors,
nutrients, organic enrichment/loading,
bioaccumulation, toxics, unknown
causes, and other forms of
anthropogenic sources of pollution (e.g.,
atmospheric deposition of mercury
leading to fish advisories). The
combined impacts of impaired water
quality may result in highly degraded or
altered aquatic communities that are
further impaired by IM&E associated
with the operation of regulated
facilities.
3. Overharvesting
Overharvesting is a general term
describing the exploitation of an aquatic
population beyond a level that is
sustainable, sometimes to the point of
significantly reducing the population
relative to historic levels. Given that
many fisheries regulated by the National
Marine Fisheries Service (NMFS) are
overfished on a continual basis,
overharvesting is a particular problem
for stocks also subject to IM&E.
22 Abt Associates, Inc. (2010). Source Water Body
Comparisons (Under Work Assignment 2–09, Task
4) (pp. 13). Cambridge, MA. See DCN 10–4504.
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4. Invasive Species
Non-indigenous invasive species
(NIS) are a significant and increasingly
prevalent stressor in both freshwater
and marine environments.
Approximately 300 NIS have become
established in marine and estuarine
habitats of the continental U.S., and the
number of NIS continues to increase.
Many NIS are nuisance species with
undesirable effects on local
communities.23 For example,
interactions between NIS and other
anthropogenic stressors can affect the
colonization and distribution of native
species subject to CWIS impacts.
C. Effects of CWIS on Aquatic
Ecosystems
The magnitude and regional
importance of IM&E is a function of
operational CWIS intake volumes and
characteristics of the aquatic community
in the region. Thus, for example, IM&E
can contribute to impacts on threatened
and endangered (T&E) species and
reduce populations of ecologically
critical aquatic organisms, including
important organisms in an ecosystem’s
food web. In addition, IM&E may
diminish the compensatory reserves of
populations and reduce indigenous
species populations, commercial
fisheries, and recreational fisheries.
Further, IM&E may stress overall
communities and ecosystems, as
evidenced by reductions in diversity or
other changes in ecosystem structure or
function. The direct and indirect
impacts of CWIS may reduce other
valuable ecosystem goods and services,
including nutrient cycling and
ecosystem stability.
1. Losses of Fish From Impingement
Mortality and Entrainment
The most visible direct impacts of
IM&E are the losses of large numbers of
aquatic organisms, distributed nonuniformly among fish, benthic
invertebrates, phytoplankton,
zooplankton, and other susceptible
aquatic taxa (e.g., sea turtles). These
losses have immediate and direct effects
on the population size and age
distribution of affected species, and may
cascade through food webs.
In some cases, IM&E has been shown
to be a significant source of
anthropogenic mortality of depleted
stocks of commercially targeted species.
For example, approximately 5.4 percent
of the estimated A1E population of the
23 Ruiz, G. M., Fofonoff, P. W., Carlton, J. T.,
Wonham, M. J., & Hines, A. H. (2000). Invasion of
Coastal Marine Communities in North America:
Apparent Patterns, Processes, and Biases. Annual
Review of Ecology & Systematics, 31, 481–531. See
DCN 10–4880.
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48319
Southern New England/Massachusetts
stock of winter flounder
(Pseudopleuronectes americanus) is lost
to IM&E.24 In addition to its effect on
stocks of marine commercial fish
species, IM&E increases the pressure on
native freshwater species, such as lake
whitefish (Coregonus clupeaformi) and
yellow perch (Perca flavescens), whose
populations have seen dramatic
declines in recent years.25
IM&E is also likely to contribute to
reduced population sizes of species
targeted by commercial and recreational
fishers, particularly for stocks that are
being harvested at unsustainable levels
and/or undergoing rebuilding. Thus,
reducing IM&E may lead to more rapid
stock recovery, a long-term increase in
commercial fish catches, increased
population stability following periods of
poor recruitment and, as a consequence
of increased resource utilization, an
increased ability to minimize the
invasion of exotic species.26
2. IM&E Effects on Threatened and
Endangered Species
Populations of T&E (threatened and
endangered) species may suffer
increased mortality as direct or indirect
consequences of IM&E. T&E species are
vulnerable to future extinction or at risk
of extinction in the near future and
IM&E losses could either lengthen
population recovery time, hasten the
demise of these species, or counteract
the effects of other conservation efforts.
For this reason, the population-level
and societal values of T&E losses are
likely to be considered more important
than the absolute number of losses that
occur. Due to low population sizes, I&E
mortality from CWISs may represent a
substantial portion of the annual
reproduction of T&E species.
3. Thermal Effects
One byproduct of once-through
cooling water systems is a discharge of
a heated effluent. Concerns about the
impacts of heated effluents are
24 Northeast Fisheries Science Center (NEFSC) of
the NOAA National Marine Fisheries Service.
(2011). 52nd Northeast Regional Stock Assessment
Workshop (52nd SAW): Assessment Summary
Report. DCN 12–4940.
25 U.S. Department of the Interior (USDOI).
(2004). Fisheries: Aquatic and Endangered
Resources from https://www.glsc.usgs.gov/
main.php?content=research_
risk&title=Species%20at%20Risk0&menu=research
[Retrieved June 23, 2004]; Wisconsin Department of
Natural Resources (Wisconsin DNR). (2003). Adrift
on the sea of life. Wisconsin Natural Resources,
June, 17–21. See DCN 10–4914.
26 Stachowicz, J. J., & Byrnes, J. E. (2006). Species
Diversity, invasion success, and ecosystem
functioning: disentangling the influence of resource
competition, facilitation, and extrinsic factors.
Marine Ecology—Progress Series, 311, 251–262. See
DCN 10–4892.
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addressed by state water quality
standards addressing temperature,
rather than a national rule. Section
316(a) of the Clean Water Act provides
a mechanism for variances from controls
that could be imposed due to thermal
effects. Based on a limited review of
NPDES permits, to the extent that
facilities have controls on cooling water
intake structures, these controls have
been required to meet water quality
standards related to temperature.27
Thermal pollution has long been
recognized as having multiple effects
upon the structure and function of
ecosystems.28 Numerous studies have
shown that thermal discharges may
substantially alter the structure of the
aquatic community by modifying
photosynthetic, metabolic, and growth
rates 29 and reducing levels of DO.
Thermal pollution may also alter the
location and timing of fish behaviors
including spawning, aggregation, and
migration, and may result in thermal
shock-induced mortality for some
species.30 Adverse temperature effects
are likely to be more pronounced in
aquatic ecosystems that are already
subject to other environmental stressors
such as high biochemical oxygen
demand (BOD) levels, sediment
contamination, and pathogens. Reduced
waterbody volume due to the effects of
climate change and/or lengthy droughts
could exacerbate these effects.
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4. Chemical Effects
The release of chemicals in the
discharge of once-through cooling
waters is another environmental effect
associated with industrial facility
operations. These chemicals include
metals from internal corrosion of pipes,
valves and pumps (e.g., chromium,
copper, iron, nickel, and zinc), additives
(anti-corrosion and anti-scaling agents)
and their byproducts, and materials
from boiler blowdown and cleaning
cycles. In addition to these pollutants,
facilities also discharge anti-fouling
biocide agents.
A review of the effects of chemical
treatment and discharge into the
27 Abt Associates, Inc. (2010). Source Water Body
Comparisons (Under Work Assignment 2–09, Task
4) (pp. 13). Cambridge, MA. See DCN 10–4504.
28 Abt Associates, Inc. (2009). Summary of
Ecological Effects of Thermal Discharge (pp. 28).
Cambridge, MA. See DCN 10–4505.
29 Martinez-Arroyo, A., Abundes, S., Gonzalez, M.
´
E., & Rosas, I. (2000). On the Influence of Hot-Water
Discharges on Phytoplankton Communities from a
Coastal Zone of the Gulf of Mexico. Water, Air &
Soil Pollution, 119(1–4), 209–230. See DCN 10–
4820.
30 Smythe, A. G., & Sawyko, P. M. (2000). Field
and laboratory evaluations of the effects of ‘cold
shock’ on fish resident in and around a thermal
discharge: an overview. Environmental Science &
Policy, 3(S1), 225–232. See DCN 10–4887.
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environment suggests that direct
ecotoxicity in discharge plumes is rarely
observed beyond the point of discharge
or in a mixing zone near the pipe
outlet.31 However, the presence of these
chemicals in the receiving water may be
additive to low-level chronic adverse
effects from other anthropogenic
stressors identified above.
5. Effects of Flow Alteration
The operation of CWISs and discharge
returns significantly alter patterns of
flow within receiving waters both in the
immediate area of the CWIS intake and
discharge pipe, and in mainstream
waterbodies, particularly in inland
riverine settings. In ecosystems with
strongly delineated boundaries (i.e.,
rivers, lakes, enclosed bays, etc.), CWISs
may withdraw and subsequently return
a substantial proportion of water
available to the ecosystem. Even in
situations when the volume of water
downstream of regulated facilities
changes relatively little, the flow
characteristics of the waterbody,
including turbulence and water
velocity, may be significantly altered.
Altered flow velocities and turbulence
may lead to several changes in the
physical environment. These changes
can include sediment deposition,
sediment transport, and turbidity, each
of which plays a role in the physical
structuring of ecosystems.32 Flow
velocity and turbulence are controlling
biological factors in aquatic ecosystem
health, and have been shown to alter
feeding rates, settlement and
recruitment, bioturbation, growth and
population dynamics.33
Climate change is predicted to have
variable effects on future river flow in
different regions of the United States.
Some rivers are expected to have large
increases in flood flows while other
basins will experience stress from low
water levels. Thus, the adverse effects of
flow alteration may increase or decrease
over longer periods for larger rivers,
depending on their location.
D. Community-Level or Indirect Effects
of CWIS
In addition to the direct effects of
CWISs, IM&E may alter a wide range of
aquatic ecosystem functions and
31 Taylor, C. J. L. (2006). The effects of biological
fouling control at coastal and estuarine power
stations. Marine Pollution Bulletin, 53(1–4), 30–48.
See DCN 10–4901.
32 Hoyal, D. C. J. D., Atkinson, J. F., Depinto, J.
V., & Taylor, S. W. (1995). The effect of turbulence
on sediment deposition. Journal of Hydraulic
Research, 33(3), 349–360. See DCN 10–4797.
33 Sanford, E. B., Bertness, D., & M. D. Gaines, S.
D. (1994). Flow, food supply and acorn barnacle
population dynamics. Marine Ecology Progress
Series, 104, 49–62. See DCN 10–4882.
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services at the community level. Many
of these effects on aquatic community
function and service are poorly
characterized, given the limited scope of
IM&E studies and an incomplete
knowledge of baseline or preoperational conditions within affected
waters.
The operation of CWISs by facilities
can lead to localized areas of depressed
fish and shellfish abundance. Industrial
facilities (and the intake volume they
represent) are located in a non-uniform
manner along coastlines and rivers.
They may be clustered, such that the
populations affected by IM&E are
geographically heterogeneous. This can
result in a highly localized and patchy
distribution of aquatic organisms in
regional areas.
IM&E may directly reduce species
populations through the death of
individual organisms, or may indirectly
affect species populations by altering
established predator-prey relationships
and thereby disrupting ecological niches
and food webs. For example, the loss of
young-of-year predators, such as striped
bass, or loss of important forage fish,
such as menhaden and bay anchovy,
may affect trophic relationships and
alter food webs. IM&E may lead to
reductions in local community
biodiversity or in a loss of genetic
diversity in individual fish populations.
Because IM&E represents a selective
pressure on early life stages, it may
reduce the genetic diversity of resident
fish and prevent the recovery of
depleted stocks.34 Also, because many
stocks are differentiated by oceanic
region and/or timing of migratory
movements, IM&E could alter the
seasonal migration and life cycle events
of fish populations, which could have
ramifications for predator species.
IM&E may also alter the pace of
nutrient cycling and energy transfer
through food webs. Fish species have
been shown to have substantial effects
on nitrogen, phosphorous, and carbon
cycling due to storage and translocation
effects.35 These alterations in nutrient
cycling could lead to redirection of
nutrient flows to other components of
the ecosystem including water column
phytoplankton, benthic macroalgae and
attached epiphytes, with subsequent
changes to the condition of critical
34 Swain, D. P., Sinclair, A. F., & Mark Hanson,
J. (2007). Evolutionary response to size-selective
mortality in an exploited fish population.
Proceedings of the Royal Society B: Biological
Sciences, 274(1613), 1015–1022. See DCN 10–4900.
35 Vanni, M. J., Layne, C. D., & Arnott, S. E.
(1997). ‘‘Top-down’’ trophic interactions in lakes:
effects of fish on nutrient dynamics. Ecology, 78(1),
1–20. See DCN 12–5047.
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ecosystem habitats, such as submerged
aquatic vegetation.
The effect of long-term or chronic
IM&E may lead to a decrease in
ecosystem resistance and resilience 36
(i.e., ability to resist and recover from
disturbance, including invasive
species). That is, IM&E is likely to
reduce the ability of ecosystems to
withstand and recover from these
ecosystem damages, whether those
impacts are due to anthropogenic effects
or natural variability.
E. Cumulative Effects of Multiple
Facilities
Cumulative effects of CWISs are likely
to occur if multiple facilities are located
in close proximity and impinge or
entrain aquatic organisms within the
same source waterbody, watershed
system, or along a migratory pathway of
a specific species (e.g., striped bass in
the Hudson River). EPA analyses show
more than 20 percent of all facilities on
inland waters withdraw more than 5
percent of the mean annual flow.37 See
TDD Chapter 4.1.3 for detailed
discussion. This impact is compounded
because more than half of all regulated
facilities are located on waterbodies
with multiple CWISs. An inspection of
the geographic locations of regulated
facilities (approximated by CWIS
latitude and longitude) shows that
facilities in inland settings are more
likely to be located in close proximity
to other facilities (upstream or
downstream) than are facilities in
marine and estuarine environments. The
cumulative impact of clustered facilities
may be significant, due to the
concentrated IM&E, combined intake
flows, and the potential for other
impacts such as thermal discharges.
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IV. Summary Description of the Final
Rule
Under today’s final rule, the owners
or operators of existing facilities and
new units at existing facilities are
subject to BTA standards for
impingement mortality and entrainment
that are expected to substantially reduce
the adverse environmental impacts of
36 Folke, C., Carpenter, S., Walker, B., Scheffer,
M., Elmqvist, T., Gunderson, L., & Holling, C. S.
(2004). Regime Shifts, Resilience, and Biodiversity
in Ecosystem Management . . . Annual Review of
Ecology, Evolution, & Systematics, 35(1), 557–581.
See DCN 10–4770.
37 As described in the Phase I proposed rule (65
FR 49060) and the Phase II NODA (66 FR 28853),
absent any other controls, withdrawal of a unit
volume of water from a waterbody will result in the
entrainment of an equivalent unit of aquatic life
(such as eggs and larval organisms) suspended in
that volume of the water column. Thus, facilities
withdrawing greater than 5 percent of the mean
annual flow from freshwater rivers and streams may
entrain equal proportions of aquatic organisms.
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cooling water intake structures. Earlier,
in Section I, the preamble describes
what facilities are subject to the rule.
The discussion below presents an
overview of the substantive
requirements of the rule.
A. BTA Standard for Impingement
Mortality for Existing Units at Existing
Facilities
The final rule requires that existing
facilities subject to this rule must
comply with one of the following seven
alternatives identified in the national
BTA standard for impingement
mortality at § 125.94(c) (hereafter,
impingement mortality standards):
(1) Operate a closed-cycle
recirculating system as defined at
§ 125.92;
(2) operate a cooling water intake
structure that has a maximum throughscreen design intake velocity of 0.5 fps;
(3) operate a cooling water intake
structure that has a maximum throughscreen intake velocity of 0.5 fps;
(4) operate an offshore velocity cap as
defined at § 125.92 that is installed
before October 14, 2014;
(5) operate a modified traveling
screen 38 that the Director determines
meets the definition at § 125.92(s) and
that the Director determines is the best
technology available for impingement
reduction;
(6) operate any other combination of
technologies, management practices and
operational measures that the Director
determines is the best technology
available for impingement reduction; or
(7) achieve the specified impingement
mortality performance standard.
Options (1), (2) and (4) above are
essentially pre-approved technologies
requiring no demonstration or only a
minimal demonstration that the flow
reduction and control measures are
functioning as EPA envisioned. Options
(3), (5) and (6) require more detailed
information be submitted to the Director
before the Director may specify it as the
requirement to control impingement
mortality.
In the case of Option (3), which EPA
considers to be a streamlined
alternative, the facility must submit
information to the Director that
demonstrates that the maximum intake
velocity as water passes through the
38 EPA is aware that innovative screen designs are
currently being tested that are expected to provide
similar or better performance than modified
Ristroph traveling screems. Therefore EPA has
defined modified traveling screen at 40 CFR 125.92
to mean any traveling water screen that
incorporates the specified measures that are
protective of fish and shellfish. In this preamble,
modified traveling water screen with a fish
handling and return system is often referred to more
simply a modified traveling screen.
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structural components of a screen
measured perpendicular to the screen
mesh does not exceed 0.5 feet per
second.
In the case of Option (5), the facility
must submit a site-specific impingement
technology performance optimization
study that must include two years of
biological sampling demonstrating that
the operation of the modified traveling
screens has been optimized to minimize
impingement mortality. As discussed
below, if the facility does not already
have this technology installed and
chooses this option, the Director may
postpone this study till the screens are
installed (see VI.G.1.d below).
In the case of Option (6), the facility
must submit a site-specific impingement
study including two years of biological
data collection demonstrating that the
operation of the system of technologies,
operational measures and best
management practices has been
optimized to minimize impingement
mortality. If this demonstration relies in
part on a credit for reductions in the rate
of impingement already achieved by
measures taken at the facility, an
estimate of those reductions and any
relevant supporting documentation
must be submitted. The estimated
reductions in rate of impingement must
be based on a comparison of the system
to a once-through cooling system with a
traveling screen whose point of
withdrawal from the surface water
source is located at the shoreline of the
source waterbody.
The impingement mortality
performance standard in (7) requires
that a facility must achieve a 12-month
impingement mortality performance of
all life stages of fish and shellfish of no
more than 24 percent mortality,
including latent mortality, for all nonfragile species that are collected or
retained in a sieve with maximum
opening dimension of 0.56 inches 39 and
kept for a holding period of 18 to 96
hours. The Director may, however,
prescribe an alternative holding period.
The 12-month average of impingement
mortality is calculated as the sum of
total impingement mortality for the
previous 12 months divided by the sum
of total impingement for the previous 12
months. A facility must choose to
demonstrate compliance with this
requirement for the entire facility, or for
each individual cooling water intake
39 Though less common, the EPA recognizes that
⁄ by 1⁄4 inch mesh are used in some instances and
perform comparably to the 3⁄8 inch square mesh.
Therefore, today’s rule allows for facilities to apply
a 1⁄2 by 1⁄4 inch sieve (diagonal opening of 0.56
inches) or a 3⁄8 inch sieve (diagonal opening of 0.53
inches) when discerning between impinged and
entrained organisms.
12
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structure. Biological monitoring must be
completed at a minimum frequency of
monthly.
The owner or operator of an existing
facility must meet the impingement
mortality requirements as soon as
practicable after issuance of a final
permit establishing the entrainment
requirements under § 125.94(d).
Today’s final rule also allows the
Director, based on review of site-specific
data, to conclude that a de minimis rate
of impingement exists and therefore no
additional controls are warranted to
meet the BTA impingement mortality
standard. In addition, today’s final rule
allows the Director flexibility in
determining appropriate site-specific
controls that may be less stringent than
those found at § 125.94(c)(1) to (7) for
existing units at existing facilities
operating with a capacity utilization of
less than 8 percent averaged over a 24month block contiguous period. This
provision can be found at
§ 125.94(c)(12). EPA notes that these
provisions for impingement mortality
would not apply to entrainment
because, as discussed in the next
section, the requirements for
entrainment are established by the
Director on a site-specific basis.
B. BTA Standard for Entrainment for
Existing Units at Existing Facilities
The final rule establishes the national
BTA standard for entrainment at
existing units at existing facilities at
§ 125.94(d) (hereafter, entrainment
standards). For such units, the rule does
not prescribe a single nationally
applicable entrainment performance
standard but instead requires that the
Director must establish the BTA
entrainment requirement for a facility
on a site-specific basis. The
requirements must reflect the Director’s
determination of the maximum
reduction in entrainment warranted
after consideration of all factors relevant
to the BTA determination at the site and
must include consideration of the
specific factors spelled out in
§ 125.98(f)(2). Facilities that withdraw
greater than 125 mgd AIF must develop
and submit an Entrainment
Characterization Study (§ 122.21(r)(9)),
as well as provide other information
required at § 122.21(r)(7) and (10), (11),
(12) and (13) that must include specified
data pertinent to consideration of
several of the factors identified in
§ 125.98(f).
C. BTA Standards for Impingement
Mortality and Entrainment for New
Units at Existing Facilities
The owner or operator of a new unit
at an existing facility must achieve one
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of two compliance alternatives under
the national BTA standards for
impingement mortality and entrainment
for new units at existing facilities at
§ 125.94(e) (hereafter, new unit
standards).40 Under the new unit
standards, the owner or operator of a
facility must reduce AIF at the new unit,
at a minimum, to a level commensurate
with that which can be attained by the
use of a closed-cycle recirculating
system as defined at § 125.92(c)(1). The
owner or operator of a facility with a
cooling water intake structure that
supplies cooling water exclusively for
operation of a wet or dry cooling
tower(s) and that meets the definition of
closed-cycle recirculating system at
§ 125.92(c)(1) meets this new unit
standard. Under the alternative new
unit standard, the owner or operator of
a facility must demonstrate to the
Director that it has installed, and will
operate and maintain, technological or
other control measures that reduce the
level of adverse environmental impact
from any cooling water intake structure
used to supply cooling water to the new
unit to a comparable level to that which
would be achieved through flow
reductions commensurate with the use
of a closed-cycle recirculating system.
Under this alternative, the owner or
operator of a facility must demonstrate
entrainment mortality reductions that
are equivalent to 90 percent or greater
of the reduction that could be achieved
through compliance with the first
alternative entrainment standard for
new units.
The new unit entrainment standards
do not apply to certain water
withdrawals including (1) cooling water
used by manufacturing facilities for
contact cooling purposes; (2) portions of
those water withdrawals for auxiliary
cooling uses totaling less than 2 mgd; (3)
any volume of cooling water
withdrawals used exclusively for makeup water at existing closed-cycle
recirculating systems; 41 and (4) any
quantity of emergency back-up water
flows. Furthermore, as is the case for
existing units, obtaining cooling water
from a public water system, using
40 EPA expects that all new units will comply
with these requirements through the installation of
a closed-cycle cooling system, which is one of the
most effective technologies for reducing
impingement and impingement mortality.
Therefore, the IM requirements for new units are
already addressed by the new unit requirements by
virtue of the first compliance alternative of the IM
performance standard.
41 For facilities with a combination of closedcycle recirculating systems and other cooling water
systems, the entrainment mortality standard does
not apply to that portion of cooling water
withdrawn as make-up water for the closed-cycle
recirculating system.
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reclaimed water from wastewater
treatment plants, or desalination plants,
or using recycled process wastewater
effluent as cooling water does not
constitute use of a cooling water intake
structure. The new unit requirements
apply only to the volume of cooling
water used by the new unit, or to the
cooling water intake structures used by
the new unit. The new unit
requirements do not apply to the rest of
the existing facility.
In addition, the Director may establish
alternative entrainment requirements for
new units when compliance with the
new unit entrainment standards would
result in compliance costs wholly out of
proportion to the costs EPA considered
in establishing the requirements at issue
or will result in significant adverse
impacts on local air quality, significant
adverse impacts on local water
resources other than impingement or
entrainment, adverse impacts on
threatened and endangered species, or
significant adverse impacts on local
energy markets. Any Director-specified
alternative must achieve a level of
performance as close as practicable to
the requirements of § 125.94(e)(1) or (2).
D. Other Provisions
The final rule contains a number of
other provisions related to the BTA
impingement and entrainment
reduction requirements. For example,
the rule also provides that the Director
may establish more stringent
requirements as BTA if the Director
determines that the facility owner or
operator’s compliance with the
requirements otherwise established
under the final rule would not meet the
requirements of applicable State and
Tribal law, including water quality
standards. 40 CFR 125.94(i). Today’s
rule also requires the owner or operator
of a facility subject to this subpart to
submit and retain permit application
and supporting information as specified
in § 125.95; monitor for compliance as
specified in § 125.96; and report
information and data and keep records
as specified in § 125.97. Director
requirements are specified in § 125.98.
The rule further provides that, in the
case of a nuclear facility or a facility
constructing or conducting maintenance
on nuclear powered vessels of the
Armed Services, if the owner or
operator of the facility demonstrates to
the Director, upon the Director’s
consultation with the Nuclear
Regulatory Commission, the Department
of Energy or the Naval Nuclear
Propulsion Program, that compliance
with this subpart would result in a
conflict with a safety requirement
established by these entities, the
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Director must establish BTA
requirements that would not result in a
conflict with the Commission’s, the
Department’s or the Naval Nuclear
Propulsion Program’s safety
requirement.
V. Summary of Data Updates and
Revisions to the Proposed Rule
This description of revisions to the
proposed rule is organized in three
sections: Data updates, regulatory
approach and compliance, and new
units. EPA published two NODAs
(Notice of Data Availability) (77 FR
34315, June 11, 2012 and 77 FR 34927,
June 12, 2012) based on some comments
received on the proposed rule and
additional analyses. EPA also took
public comment on the information in
these notices.
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A. Data Updates
On the basis of comments received,
additional information made available,
and further analyses, EPA revised a
number of assumptions used in its
assessments for the final rule. These
included revisions to the engineering
costs of options considered in
development of the final rule, the
information collection costs, the
economic analyses, and the benefits
analyses. The revised analyses, along
with an explanation of how they
affected decision making for this final
rule, are discussed below.
1. Impingement Data and Performance
Standard
Since publishing the proposal, EPA
received a substantial number of
comments stating the amount of data to
develop the proposed impingement
mortality performance standard was too
limited. EPA received more than 80
additional documents containing
impingement and entrainment data.
EPA reviewed these materials and found
that many documents did not provide
useful data. For example, in some cases,
a document did not provide useful
information because the only data
available were the facility name and raw
sampling data for a number of different
species of fish or shellfish, or both. In
other cases, the documents focused on
source water characterization data
alone. However, after review, EPA
identified more than 40 distinct sets of
additional impingement sampling and
performance data.
EPA also reevaluated and revised the
criteria it used for including
impingement mortality study data in the
impingement mortality performance
standard calculations. In calculating the
impingement mortality performance
standard of § 125.94(c)(7), EPA applied
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these revised criteria for acceptable data
to both the new data and the earlier data
used for proposal. EPA’s approach for
the final rule is similar to that of the
proposal. In order to include data in
EPA’s calculation, for the proposal, EPA
applied the following four criteria. First,
the data must be specific to the
technology under consideration.
Second, impingement mortality must
have been reported as an absolute
number or a percentage of impinged fish
that were killed. Third, the data must
reflect that the installed technology was
operated under conditions that are
representative of actual conditions at a
facility, and fourth, the reported values
must be actual measurements. EPA
based the proposed performance
standard on the performance of
modified traveling screens with a fish
return system using a limited definition
of the control technology.
In its reevaluation and based on
comments, EPA decided to revise some
of the criteria and add two new ones. In
some cases, the effect of these changes
is to relax the criteria and in others, to
impose more restrictive criteria. First,
all impingement data must be for nonfragile species (including shellfish).
Second, the data must be representative
of annual mortality data for purposes of
deriving an annual performance
standard. EPA notes that in contrast to
the proposed rule, the permit
application does not require submission
of the proposed list of ‘‘species of
concern.’’ EPA found that the term
‘‘species of concern’’ was similar to
terms used in the context of T&E
(threatened and endangered) species,
and may further cause confusion over
existing Services or State requirements
for such species. Further, despite EPA’s
efforts to distinguish between species of
concern and RIS (representative
indicator species) in the NODA (77 FR
34325, June 11, 2012), EPA found that
many commenters were still confused
by the language. Instead, EPA is
adopting the term ‘‘fragile species’’ and
using the term exactly as it is used with
the impingement mortality data and
criteria used in calculating the
impingement mortality performance
standard of the rule. EPA included a
definition for ‘‘fragile species’’ at
§ 125.92(m), as a species of fish or
shellfish that has an impingement
survival rate of less than 30 percent.
EPA took this approach to ensure that
a facility’s performance in reducing
impingement mortality as demonstrated
by collecting biological data would
reflect only the effects of its
improvements to the CWIS technology,
and not be confounded by effects of data
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collection that are not caused by
impingement.
EPA also relaxed the holding time
criteria as a result of reevaluating the
range of acceptable impingement
mortality holding times, which at
proposal was limited to 24 to 48 hours.
After evaluating the data, EPA
concluded that a range of holding times
of 18 to 96 hours was acceptable for
inclusion in the development of a
performance standard because
commenters had provided
documentation showing that the actual
time period typically had little effect on
IM rates. At proposal, EPA counted all
fish that died at any time during the
holding period. For the final rule being
promulgated today, EPA excludes those
that were dead at time zero because
such counts measured immediate deaths
and not those organisms that were
mortally harmed as a result of
impingement. These counts also might
reflect already injured, nearly dead, or
already dead fish (‘‘naturally
moribund’’) that were impinged by the
screen. As a consequence of relaxing the
holding times and other requirements,
EPA based the performance standard on
a larger set of data, with broader
geographic representation. (For more
information, see DCN 12–6703.) The
rationale for these revisions to the data
acceptance criteria are described in
further detail in the TDD, Chapter 11.
Using the revised criteria, EPA reviewed
the data in each of the impingement
mortality studies for potential inclusion
in EPA’s evaluation of an impingement
mortality performance standard. These
changes resulted in an increase in the
number of facility data sets acceptable
for determining the impingement
mortality performance standard, from
four data sets at three facilities at
proposal to 26 data sets at 17 facilities
today. As a result, the 12-month average
impingement mortality performance
standard of all life stages of fish and
shellfish was revised from no more than
12 percent to no more than 24 percent
mortality, including latent mortality, for
each non-fragile species that is collected
or retained in a sieve with maximum
opening dimension of 0.56 inches and
kept for a holding period of 18 to 96
hours. The revised performance
standard and data evaluation criteria are
discussed in detail in Section VI and
Chapter 11 of the TDD.
EPA also reevaluated its approach to
compliance monitoring for the
impingement mortality performance
standard. In particular, EPA considered
the costs and burden of frequent
biological monitoring for those
technologies that, according to EPA’s
record, perform equal to or better than
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the IM performance standard. As
proposed, all facilities would have
conducted weekly biological monitoring
in perpetuity irrespective of the
compliance approach or technologies
selected. EPA agrees with comments
that this may be unnecessarily
burdensome and of limited value for
those technologies for which the
potential performance is well
documented. As such, today’s final rule
includes seven compliance alternatives,
only one of which requires biological
compliance monitoring.
EPA notes, however, that a facility
relying in part on a credit for reductions
in impingement mortality already
obtained at the facility (§ 125.94(c)(6))
must gather biological data at a
minimum frequency of monthly for a
period of two years in order to calculate
their 12-month average impingement
mortality. Further, a facility choosing to
comply using the impingement
mortality performance standard
(§ 125.94(c)(7)), must conduct biological
monitoring at a frequency of at least
monthly in order to calculate its 12month average impingement mortality.
The 12-month average is calculated as
the sum of total impingement mortality
for the previous 12 months divided by
the sum of total impingement for the
previous 12 months. EPA is requiring
that a facility choose to either
demonstrate compliance with this
requirement for the entire facility, or for
each individual cooling water intake
structure. The EPA expects that as the
performance of the technology is
demonstrated by the facility, the
Director could reduce the frequency of
biological compliance monitoring.
Further, prior to a subsequent permit
application, a facility could collect
sufficient performance data to
demonstrate to the satisfaction of the
Director that its ‘‘systems of
technologies’’ compliance alternative is
BTA at that facility.
2. Technology Costs
Since publishing the proposal, EPA
received a number of public comments
from industry stating that EPA had
underestimated the costs of modified
traveling screens with fish returns. EPA
used new information to revise the
compliance cost estimates (including
the methodology used for technology
assignment) and the capital costs for
several compliance technologies,
including those used as the primary
basis for the final rule. Those changes
include the following:
• In response to comments
challenging EPA’s assumption that
modified traveling screens were
available at most facilities, EPA changed
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the assignment of the modified traveling
cost module 42 so as to apply this only
where the existing intake for the model
facility intake employed traveling
screens. As a result, a number of
intakes, such as those that use passive
screens (e.g., fixed screens), were
assigned higher cost technologies such
as larger intakes or wedgewire screens
with through-screen design velocities of
0.5 fps.
• Because EPA has clarified that
properly operated closed-cycle
recirculating systems is one of the
compliance alternatives for
impingement mortality, those intakes
with existing closed-cycle cooling no
longer receive additional impingement
technology costs.
• At proposal, the design of the larger
intake module was based on a throughscreen velocity of 1.0 fps and, therefore,
was not consistent with the low velocity
compliance alternatives. To ensure that
this technology will be consistent at all
locations, the through-screen design
velocity for the larger intake was
changed to a maximum of 0.5 fps,
resulting in a substantial increase in
capital and operational and
maintenance costs.
• EPA received a number of
comments noting that fish returns might
be difficult to install at some intakes.
EPA reviewed the fish return cost
component of the modified traveling
screen module and concluded that
EPA’s costs represented an ‘‘easy’’
installation rather than an average of
both easy and more difficult installation
costs. To account for a wider range of
fish return costs that includes those
with higher costs, EPA increased the
capital costs of the fish return
component and included additional
costs for those with particularly difficult
circumstances such as very long intake
canals and submerged offshore intakes.
For a detailed discussion, see Chapter 8
of the TDD.
• EPA received a number of
comments stating that it had
underestimated capital costs for
modified traveling screens. During site
visits to several facilities, EPA obtained
actual traveling screen replacement
costs. EPA compared its estimates to
actual reported replacement costs and
vendor-supplied data and concluded
that the capital costs were
underestimated by about 20 percent.
Therefore, EPA increased the capital
42 EPA used a model facility approach to develop
compliance technology costs where different sets of
compliance technology cost algorithms called
modules were assigned to individual model facility
intakes on the basis of site-specific conditions. For
a more detailed discussion, see the TDD Chapter 8.
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costs of modified traveling screens by 20
percent.
These changes to the engineering
costs result in a 24 percent increase in
capital and O&M costs. The revised
costing assumptions are discussed in
further detail in Chapter 8 of the TDD.
3. Monitoring Costs for Impingement
Mortality
Many commenters expressed concern
that requirements for monitoring for the
impingement mortality performance
standard were excessive. Of particular
concern were the long-term costs for
impingement mortality monitoring at
facilities that would be relying on either
closed-cycle cooling or an intake
velocity less than or equal to 0.5 fps
through-screen design velocity. The
final rule includes seven compliance
alternatives for the impingement
standard. One of these alternative
provides for reduced monitoring
requirements for facilities employing
modified traveling screens. This
alternative is available if the facility has
demonstrated the technology is
optimized to minimize impingement
mortality of all non-fragile species.
Under this approach, EPA requires the
facility to provide site-specific
performance data to identify the
operational conditions that will ensure
that the technology is being operated
optimally. Once these operational
conditions have been identified, the
Director must include in the permit
those operational measures and best
management practices identified in the
study and deemed as necessary by the
Director to ensure proper operation of
the modified traveling screens. EPA also
clarified in the rule that compliance
monitoring and reporting requirements
for facilities that comply with the
impingement mortality standard by
employing one of the pre-approved or
streamlined IM compliance alternatives
will be largely limited to information
that ensures proper operation of the
installed control technology. EPA
estimates that this alternative approach
will reduce annual monitoring and
reporting costs from approximately $47
million under the proposed rule to
approximately $27 million under the
final rule.
4. Benefits and Willingness To Pay
Survey
EPA received a number of comments
on the proposed rule and NODA
addressing the use of stated preference
surveys to determine the public’s
willingness-to-pay for benefits
associated with the rule. EPA conducted
a stated preference survey to calculate
benefits associated with minimizing
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adverse impacts to aquatic ecosystems
from cooling water intakes. For some
commenters, the use of stated
preference surveys to evaluate benefits
remains controversial, and they objected
to using such surveys. Other
commenters acknowledge the decades
of technical development and
improvement of these methods and
support using stated preference surveys.
Based on consideration of public
comment, EPA decided not to employ
the survey results for purposes of
decision-making in this rule, or include
them in assessing the total benefits of
the rule. The rule does not require State
Directors to require facility owners or
operators to conduct or submit a
willingness to pay survey to assess
benefits.
B. Regulatory Approach and
Compliance
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1. Regulatory Approach
EPA has largely adopted the
regulatory approach of the proposed
rule with several changes regarding
compliance, particularly with respect to
the impingement mortality
requirements. These changes clarify
elements of the rule (as discussed in the
NODAs) about which commenters
expressed uncertainty and provide
additional flexibility to regulated
facilities in meeting the rule’s
impingement mortality standard.
EPA received some comments
questioning whether specific provisions
apply to the entire facility or to
individual intakes. To clarify this issue,
EPA modified the rule language so as to
state clearly that a facility with multiple
intakes must decide whether it will
adopt a single compliance strategy for
impingement mortality for the entire
facility or adopt an intake-specific
compliance strategy at each cooling
water intake. Thus, facilities may select
different compliance strategies for
different intakes, providing flexibility at
facilities with multiple intakes.
Regardless of which impingement
compliance approach a facility chooses
(single strategy for entire facility or
different strategies for different intakes),
if the facility chooses to comply with
the impingement standard by operating
at a maximum through-screen velocity
of 0.5 feet per second, the facility must
measure and comply with the low
velocity compliance alternative of 0.5
fps on an individual intake basis.
a. Impingement Mortality Standards
EPA received a substantial number of
comments requesting greater flexibility
and clarification regarding compliance
with the impingement mortality
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standards, including suggestions that (1)
impingement requirements be addressed
on a site-specific basis; (2) certain
technologies should be pre-approved;
(3) credit should be given for existing
technologies and operating conditions;
and (4) combinations of technologies be
allowed. EPA has concluded that lowcost technologies for impingement
mortality reduction are effective, widely
available, feasible, and demonstrated for
facilities nationally and thus, a
completely site-specific approach is not
appropriate. However, recognizing that
for some sites technologies other than
modified traveling screens may allow a
facility to achieve the same level of
performance, EPA has included
compliance options that provide for
more flexibility and allow consideration
of the performance of combinations of
technologies and operating conditions.
Some of the more significant changes
include the following:
• Compliant technologies—EPA has
concluded that employing certain
technologies will meet or exceed the
requirement of the impingement
mortality standard, provided they meet
certain design and operational criteria.
These pre-approved and streamlined
technologies include a closed-cycle
recirculating system, existing offshore
velocity cap, and maximum design
intake velocity of 0.5 fps. Associated
with these compliance options are
reduced monitoring requirements.
Æ Closed-Cycle Cooling—EPA has
concluded that a fully closed-cycle
recirculating system as defined at
§ 125.92(c) (and that is properly
operated and maintained) achieves the
impingement mortality performance
standard. Even after retrofitting a facility
to be closed-cycle, it may still be
possible to withdraw and discharge
cooling water at rates associated with
once-through cooling. Existing facilities
that retrofit to closed-cycle cooling often
do so without modifying or replacing
their condenser to optimize it for
closed-cycle operation. In such cases,
the facility has an incentive to operate
its system in a once-through cooling
mode, to minimize chemical costs or
avoid a turbine backpressure constraint.
EPA has concluded that it is not
appropriate to add conditions to the
definition of closed-cycle cooling
because water may be withdrawn for
purposes of replenishing losses to a
closed-cycle recirculating system other
than those due to blowdown, drift, and
evaporation from the cooling system.
However, the final rule provides the
Director the discretion to determine
whether the operation of a cooling
system minimizes the make-up and
blowdown flows withdrawn, consistent
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with the definition of a closed-cycle
recirculating system (40 CFR 125.92(c)).
Æ Existing Offshore Velocity Caps—
The record indicates that an existing
offshore velocity cap as defined at
§ 125.92(v) also achieves the necessary
reductions in impingement mortality
and thus meets the IM standard. Data in
the record concerning existing velocity
caps show that a velocity cap alone is
insufficient, but data on existing
offshore velocity caps shows that a
velocity cap in combination with their
current offshore locations meet EPA’s
BTA standard for impingement
mortality. EPA has determined that new
offshore velocity caps could comply
using the combination of technologies
approach in § 125.94(c)(6). The offshore
component likely makes the velocity
cap technology unavailable except to
facilities in marine waters and certain
Great Lakes locations; therefore, the
technology alone is not BTA.
Æ Through-Screen Velocity—EPA has
clarified that compliance with a 0.5 fps
intake velocity achieves the IM
standards. EPA’s record shows an intake
velocity of 0.5 fps or lower provides
similar or greater reductions in
impingement, and therefore
impingement mortality, than modified
traveling screens—the technology
forming the basis for the numeric
impingement mortality performance
standard that is the goal for all facilities.
There are two ways to demonstrate
compliance using intake velocity. First,
an intake with a maximum design
intake velocity less than or equal to 0.5
fps is pre-approved BTA for
impingement mortality and does not
require further monitoring.
Alternatively, under a streamlined
option, the facility may demonstrate to
the Director that the facility meets the
velocity requirement through
monitoring of the actual intake velocity.
Screen velocity can be monitored by
direct measurement or by calculation
using the volumetric actual intake flow
and source water surface elevation.
• Modified Traveling Screens—A
facility must operate modified traveling
screens 43 that the Director determines
meets the definition at § 125.92(s).
Facilities will demonstrate that they
have optimized performance of their
traveling screen to minimize IM.
43 While rotary screens are technically not
modified traveling screens, the regulation at
§ 125.92(s) defines modified traveling screens to
include traveling water screens that incorporate
measures protective of fish and shellfish. EPA has
thus provided the flexibility for other types of
active screens that achieve the same or better
performance than modified traveling screens.
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• Systems of Technologies to Meet the
IM Standard—EPA received a
substantial number of comments asking
whether previously installed
technologies or various combinations of
technologies and operating conditions
could also meet the BTA standard for
impingement mortality. For example,
some technologies, such as louvers,
reduce the rate of impingement, but the
effect on overall impingement mortality
reduction cannot easily be measured
and would not appear in biological
sampling of the technology. In EPA’s
view, the Director should take into
account the reduction in impingement—
for example, that associated with such
technologies as louvers or behavioral
deterrents, or due to intake location—
when determining permit conditions to
include in the facility’s permit in order
for a combination of technologies to
achieve the required impingement
mortality standards. Thus, the facility
should obtain credit toward the
impingement mortality standard for
such reductions in the rate of
impingement. A number of the
flexibilities above were described in the
June 11, 2012 NODA, and EPA has
included a provision to allow additional
flexibility in achieving compliance
through the use of a combination of
technologies and operating conditions.
A facility may use a system of
technologies, management practices and
operational measures to achieve the
impingement mortality standard,
including, for example, flow reductions,
seasonal operation, unit closures, credit
for intake location, behavioral deterrent
systems, and other technologies and
operational measures. The Director must
determine, based on a demonstration by
the facility to the Director, that the
system of technologies or operational
measures, in combination, have been
optimized to minimize impingement
mortality of all non-fragile species. The
Director may require additional
operational measures, best management
practices, and monitoring as part of the
demonstration. In addition, the facility’s
permit must include conditions to
ensure that the facility operates its
cooling water intake structures in a
manner consistent with the conditions
and measures identified in its
demonstration to the Director.
• Numeric IM Performance
Standard—As a practical matter, EPA
expects that very few facilities will
choose to comply with the numeric
impingement mortality performance
standard. Those facilities that choose to
comply in this way will need to
demonstrate to the Director how the
technology the facility is implementing
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enables the facility to meet the
impingement mortality standard. The
numeric standard provides a pathway to
compliance for innovative technologies
that may be developed in the future.
EPA also received many comments
stating that barrier nets were both
unnecessary and might be unavailable
in many locations. Because EPA’s
revised impingement data set had
sufficient data to characterize shellfish
impingement, EPA has eliminated the
barrier net requirement in the final rule.
See Section VI for more information.
b. Definition of Closed-Cycle Cooling
System
In the final rule, EPA revised the
definition of a closed-cycle recirculating
system to provide additional flexibility
for the Director in determining which
closed-cycle cooling systems comply
with the IM standards. The proposed
rule’s definition of ‘‘closed-cycle
recirculating systems’’ included, as
elements of a properly operated closedcycle system performance, requirements
generally expressed in terms of cycles of
concentration (COC) or percentage flow
reduction relative to a once-through
cooling system. Cycles of concentration
represents the accumulation of
dissolved minerals in the recirculated
cooling water. Discharge of a portion of
the water (called ‘‘blowdown’’) is used
to control the buildup of these minerals.
COC is a measure of how concentrated
are chlorides in recirculated water
relative to make-up water, and thus how
well a system recycles intake water
before replacing it with new
withdrawals. This is not to be confused
with cycles of flow, as some
commenters appeared to do.
Cycles of concentration can be
measured as the ratio of chloride levels
in the recirculated water or blowdown
relative to the chloride levels in the
source water, or makeup water. Some
commenters stated that, while they have
been operating as closed-cycle units for
many years, they were concerned that
their facilities would not be ‘‘closedcycle recirculating systems’’ under the
proposed definition because they would
not achieve the required COC. EPA has
found the concentration cycles in the
majority of cooling towers usually range
from 3 to 6 at power plants, and can
often exceed 9 at manufacturing
facilities. However, EPA recognizes that
many manufacturers have complex
water balances, and calculating a
specific flow reduction attributable to
cooling water use could be difficult and
time consuming. In such cases, many
manufacturers could far more readily
calculate the cycles of concentration of
particular unit operations, and could
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therefore show those unit operations
that use cooling water meet the
conditions for closed-cycle cooling. EPA
found in site visits many complex
manufacturing facilities already have
this capability, and have achieved very
high COC. Likewise, power plants may
find it much easier to measure flow than
cycles of concentration. Accordingly,
EPA’s proposed rule attempted to
recognize performance using either
metric. EPA expects most power
generators would use percentage flow
reduction to demonstrate they are
closed-cycle, and expects most
manufacturing facilities would use COC
for those units that utilize water for
cooling purposes. Increasing the amount
of minerals present in the water by
cycling can make water less aggressive
to piping; however, EPA is also aware
that excessive levels of minerals (such
as found in certain source waters, most
notably those with higher salinity) can
cause scaling problems, leading to
different levels of both metrics for
freshwater and saltwater facilities.
EPA carefully considered these issues
and concluded that the most important
aspect of the definition of a properly
operated closed-cycle cooling system is
that the makeup flow be minimized.
Thus EPA has removed the numeric
levels of the metrics as a threshold,
while retaining the minimized makeup
flow aspect of the definition. As an
example, in the case of a facility that
uses make-up water from a freshwater
source, a Director may determine that a
closed-cycle recirculating system can
generally be deemed to minimize makeup and blowdown flows if it reduces
actual intake flows (AIF) by 97.5 percent
as compared to a once-through cooling
system or if its cooling tower is operated
at a minimum cycles of concentration of
3.0. And likewise, in the case of a
facility that uses make-up water from a
saltwater, brackish, or other source with
a salinity of greater than 0.5 parts per
thousand, a Director may determine that
a closed-cycle recirculating system can
generally be deemed to minimize makeup and blowdown flows if it reduces
actual intake flows (AIF) by 94.9 percent
as compared to a once-through cooling
system or if its cooling tower is operated
at a minimum cycles of concentration of
1.5. These reductions and cycles of
concentration are illustrative. A Director
may determine that other levels near
these numbers could also constitute a
closed-cycle recirculating system. The
final rule further recognizes that in
certain unavoidable circumstances,
these levels for COC or percent flow
reduction might not be achievable at all
facilities. Such circumstances could
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include situations where water qualitybased discharge limits might limit the
concentration of a pollutant that is not
readily treatable in the cooling tower
blowdown or situations where varying
source water quality could lead to
unavoidable problems concerning scale
formation, solids buildup, corrosion, or
media fouling. Such facilities should
demonstrate these circumstances to
their Director and indicate the measures
they have taken to minimize makeup
flows. The Director will retain the
discretion to conclude that the
particular facility employs a closedcycle recirculating system when the
benchmarks are not met.
In cases where the Director will make
a determination as to whether the
facility’s cooling system meets the
definition of a closed-cycle recirculating
system, EPA’s intent is that the
withdrawal of small amounts of service
water (for uses such as fire suppression,
potable water, screenwash water,
vehicle wash water, and such) do not
preclude consideration of the system as
closed-cycle. To avoid misuse of this
provision, the Director will make the
final determination.
Finally, EPA data show more than 50
facilities have cooling systems that
include impoundments. In some cases,
the cooling systems that include
impoundments were created in the
waters of the U.S., in whole or in part,
or were created in uplands but
withdraw make-up water from waters of
the U.S. These cooling systems may
perform like a closed-cycle recirculating
system. EPA has clarified at 40 CFR
125.92(c)(2) that a cooling system that
includes an impoundment lawfully
created in the waters of the U.S for the
purpose of cooling may be considered a
closed-cycle recirculating system. As
with other closed-cycle recirculating
systems, the Director will determine
whether the impoundment minimizes
the withdrawal of water for cooling
purposes and therefore meets the
definition of a closed-cycle recirculating
system. See Section VI for further
discussion.
c. Entrapment
The proposed rule included a
prohibition on trapping organisms in an
intake structure with no viable escape
route. Many commenters expressed
concern that the entrapment
requirements were not well defined and
would require costly technologies not
considered in EPA’s cost estimates.
Moreover, in the commenters’ view, the
requirements could be difficult to
comply with, particularly where cooling
systems employ impoundments or
basins downstream of the initial intake
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structure. EPA agrees that in some cases,
such as where a canal or basin for
maintaining consistent water levels is
located behind the CWIS, that the
proposed entrapment requirement could
require additional controls such as
additional fish returns that are not, in
all cases, feasible. For example, EPA
found in site visits that the forebay may
be located more than a mile from the
CWIS, and a fish return in that situation
would not have been feasible. The final
rule deleted the requirement that
prohibited entrapment. In the final rule,
facilities would account for all
impinged fish and shellfish when
conducting their two year performance
study. To the extent entrapment of
shellfish poses a concern, the Director
may establish additional measures, such
as seasonal deployment of barrier nets,
under § 125.94(c)(8).
d. Requirements for Threatened and
Endangered Species
EPA consulted with the Fish and
Wildlife Service and National Marine
Fisheries Service and EPA made a
number of adjustments to the rule to
protect threatened and endangered
species and designated critical habitat
as a result of the consultation; the
protections were included to insure that
the rule is not likely to jeopardize the
continued existence of listed species or
result in the destruction or adverse
modification of designated critical
habitat. To be clear, the ESA provisions
of the rule extend to all listed T&E
species, not just fish and shellfish. See
Section VIII.K for a summary of these
provisions.
2. Compliance Timelines for
Impingement Mortality and Entrainment
Requirements
At proposal, compliance deadlines for
impingement mortality and entrainment
requirements were set separately.
Facilities would have been required to
meet impingement mortality reduction
requirements as soon as possible, but no
more than eight years after the effective
date of the rule. Compliance with
entrainment reduction requirements
would have been set by the Director.
Many commenters expressed concern
that the compliance timeline for the
impingement mortality and entrainment
requirements should be harmonized to
prevent a facility from having to install
a technology to comply with
impingement mortality requirements,
only to be required at a later date to
install an entrainment reduction
technology that effectively renders the
investment in the impingement
mortality technology obsolete or
worthless.
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EPA agrees that facilities required to
install both impingement and
entrainment compliance technologies
will benefit from reduced compliance
costs if the compliance scheduling is
coordinated. EPA also agrees that
requiring more timely decisions on
entrainment requirements than
anticipated at proposal will facilitate
these cost savings without sacrificing
fish protection. In some cases,
impingement compliance can be
attained with entrainment technologies.
For example, the Director may
determine that the installation of
modified fine-mesh traveling screens
and narrow-slot wedgewire screens will
achieve the impingement mortality
standard and further, that this same
equipment represents, on a site-specific
basis, BTA entrainment control. If the
compliance schedule is not harmonized,
it is possible that a facility could install
(at significant cost) coarse-mesh
traveling screens that it might have to
later retrofit with fine-mesh panels. It is
also possible that a facility could make
modifications necessary to attain a 0.5fps through-screen velocity to meet the
IM standards and later have closedcycle cooling identified as BTA for
entrainment, thereby making the intake
modifications for impingement control
unnecessary.
To address this issue in the final rule,
EPA revised the compliance
requirements so that the Director is
required first to establish entrainment
requirements under § 125.94(b)(1) in the
final permit. The facility will then be
required to comply with the
impingement mortality standard in
§ 125.94(c) as soon as practicable
thereafter. See Section VIII on
implementation for more detailed
discussion.
Because an entrainment requirement
could require controls that take many
years to design, finance and construct,
the Director may establish interim
milestones related to meeting the final
requirements to ensure that the facility
is making progress.
C. New Units
EPA has revised the definition of new
units to mean a stand-alone unit at an
existing facility the construction of
which is commenced after the effective
date of today’s final rule; consists of
only a stand-alone unit constructed at
an existing facility; and that does not
otherwise meet the definition of a new
facility at § 125.83. A stand-alone unit is
a new, separate unit that is constructed
at an existing facility. New unit includes
stand-alone units that are added to a
facility for purposes of the same general
industrial operation as the existing
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facility. A new unit may have its own
dedicated cooling water intake
structure, or may use an existing or
modified cooling water intake structure.
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VI. Basis for the Final Regulation
In response to the Supreme Court’s
decision in Entergy Corp. v.
Riverkeeper, Inc. et al. in April 2009,
EPA has reevaluated the requirements
for existing facilities under CWA section
316(b). As discussed above, EPA
collected additional data and
information to update its assessment of
the efficacy of various technological
measures for reducing IM&E and
analyses prepared for the earlier rulemaking efforts. EPA’s additional
technical rigor provided a strengthened
analysis of different technologies for
reducing IM and their effectiveness. As
a result of its revised assessments and
further consideration of the factors
affecting the availability of different
technology in a wide range of settings,
EPA has decided not to re-promulgate
requirements for existing facilities that
mirror those of the final Phase II rule.
Further, EPA is adopting, for the reasons
explained in detail below, a new
framework. In addition, as previously
noted, EPA decided to address all
existing facilities subject to section
316(b) in this rule (i.e., both those
subject to the Phase II rule and some of
those subject to the Phase III rule). For
a brief description of the final rule, see
Section IV.
A. EPA’s Approach to BTA
CWA section 316(b) requires EPA to
establish standards for cooling water
intake structures that reflect the ‘‘best
technology available for minimizing
adverse environmental impact.’’ As
explained above, the statute is silent
with respect to the factors that EPA
should consider in determining BTA,
but courts have held that section
316(b)’s reference to CWA sections 301
and 306 is an invitation for EPA to look
to the factors 44 considered in those
sections in establishing standards for
section 316(b).
But EPA, when considering such
factors, is not bound to evaluate these in
precisely the same way it considers
them in establishing effluent limitations
guidelines under CWA section 304. As
the Supreme Court noted, given the
absence of any factors specified in
section 316(b), EPA has much more
44 The factors specifically delineated in CWA
sections 301 and 306 include cost of the technology,
taking into account the age of the equipment and
facilities, process employed, engineering aspects
associated with a particular technology, process
changes and non-water quality environmental
impact (including energy requirements).
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discretion in its standard setting under
section 316(b) than under the effluent
guidelines provisions. Therefore, the
statute vests EPA with broad discretion
in determining what is the ‘‘best’’
technology that is ‘‘available’’ for
minimizing adverse environmental
impact. As the Supreme Court has
further explained, under section 316(b),
the ‘‘best’’ technology ‘‘available’’ may
reflect a consideration of a number of
factors and ‘‘best’’ does not necessarily
mean the technology that achieves the
greatest reduction in environmental
harm that the regulated universe can
afford. Rather, the ‘‘best’’ (or ‘‘most
advantageous,’’ in the court’s words)
technology may represent a technology
that most efficiently produces the
reductions in harm.
EPA interprets section 316(b) to
require the Agency to establish a
standard that will best minimize
impingement and entrainment—the
main adverse effects of cooling water
intake structures not otherwise
addressed by the other sections of the
CWA (e.g., thermal discharges). In EPA’s
view, several important considerations
underpin its decision. First, its BTA
determination should be consistent
with, and reflective of, the goals of CWA
section 101: ‘‘to restore and maintain
the physical, chemical, and biological
integrity of the Nation’s waters,’’ with
the interim goal of ‘‘water quality which
provides for the protection and
propagation of fish, shellfish, and
wildlife and provides for recreation in
and on the water.’’
Second, E.O. 13563 directs EPA and
other Federal agencies to identify and
use the best, most innovative and least
burdensome tools for achieving
regulatory ends. In its regulatory
actions, agencies ‘‘must take into
account benefits and cost, both
quantitative and qualitative,’’ and to the
extent permitted by law, only
promulgate regulations that are based on
‘‘a reasoned determination that its
benefits justify its costs (recognizing
that some benefits and costs are difficult
to quantify)’’ (see section 1(b)(1)). In
selecting a regulatory approach,
agencies must tailor regulations to
impose the least burden on society and,
in choosing among regulatory
alternatives, select ‘‘those approaches
that maximize net benefits (including
potential economic, environmental,
public health and safety, and other
advantages; distributive impacts; and
equity)’’ to the extent permitted by law.
76 FR 3821 (January 21, 2011). Because
the Supreme Court has concluded that
the CWA authorizes EPA to consider
costs and benefits in its BTA
determination, EPA has consequently
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considered costs and benefits in this
final rule as directed by the President.
In accord with E.O. 13563, EPA has
concluded that the benefits of the final
rule justify its costs. For additional
discussion, see Section VI below.
Consideration of benefits is
complicated by the debate about the
tools and data that would permit a
complete expression of ecological
benefits in monetized terms. EPA has,
however, used the best available science
regarding widely accepted tools and
data to monetize the benefits of the
various options in four major categories:
recreational fishing, commercial fishing,
nonuse benefits, and benefits to
threatened and endangered species (see
Section X below). EPA has concluded
that the benefits estimated for the first
two categories are generally complete,
while the benefits estimated for the
latter two categories are far from being
complete for a number of reasons. For
example, the nonuse benefits transfer
was based on a species that represents
less than one percent of adverse
environmental impacts. EPA is
continuing to refine its tools to develop
a more complete analysis concerning
benefits for future application.
In selecting the ‘‘best’’ technology
available for minimizing adverse
environmental impact, EPA looked at a
number of factors. As discussed
previously, EPA’s initial approach to
316(b) standard setting was similar to
one it follows in considering a
technology-based rule under sections
301, 304, and 306. EPA first considered
the availability and feasibility of various
technologies, and then evaluated costs
associated with these technologies
(including potential costs to facilities
and households), and their economic
impacts. EPA also reviewed the
effectiveness of these technologies in
reducing impingement mortality and
entrainment. Further, EPA also
considered additional factors set out in
CWA section 304(b), including location,
age, size, and type of facility. In
addition, EPA considered the non-water
quality environmental impacts of
different technologies on energy
production and availability, electricity
reliability, and potential adverse
environmental effects that could arise
from the use of the different
technologies evaluated.
As a result of this thorough
evaluation, in the case of the BTA
standard for impingement mortality,
EPA based the standard on performance
of well-operated modified traveling
screens with a fish handling and return
system as defined more specifically by
the rule. Under the BTA IM standard, a
facility has a number of options for
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compliance. In the case of the BTA
standard for entrainment, on the other
hand, EPA could not identify one
technology that represented BTA for
existing facilities on a national basis.
B. Overview of Final Rule Requirements
As noted, EPA concluded that the best
technology available for minimizing
impingement mortality was ‘‘modified
traveling screens,’’ as more specifically
defined in the rule. The BTA
Impingement Mortality Standard
includes seven technology options for
complying with the standard whose
performance is equivalent to, or better
performing than modified traveling
screens. First, the rule identifies four
technologies (closed-cycle recirculating
systems, reduced design intake velocity,
reduced actual intake velocity, and
existing offshore velocity caps) that
reduce impingement mortality as well
or better than modified traveling
screens, and therefore will generally
comply with the BTA Impingement
Mortality Standard of today’s final rule.
The rule also provides that, if the
Director determines that modified
traveling screens are insufficient to
protect shellfish, the Director may
establish additional measures under
§ 125.94(c)(8) such as seasonal
deployment of barrier nets, or if
modified traveling screens 45 are
insufficient to protect other species, the
Director may establish additional
protective measures under
§ 125.94(c)(9). In addition, the rule
provides in § 125.94(g) that the Director
may establish additional control
measures and monitoring or reporting
requirements in the permit in order to
protect Federally-listed threatened and
endangered species and designated
critical habitat. The Director may
include such conditions that are
designed to minimize incidental take,
reduce or remove more than minor
detrimental effects to Federally-listed
species and designated critical habitat
or avoid jeopardizing Federally-listed
species and or destroying or adversely
modifying designated critical habitat
(e.g., prey base).
Next, the final rule provides an option
that allows a facility to demonstrate to
its permitting authority that it has
installed modified traveling screens—
the technology EPA identified as the
basis for the BTA impingement
mortality standard—and to provide data
on the performance of its screens. The
facility must demonstrate that its
modified traveling screens are
consistent with EPA’s definition and
demonstrate through an impingement
45 Or
any of the IM compliance alternatives.
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technology performance optimization
study that its screens have been
optimized to minimize impingement
mortality. After consideration of the
information provided, the permitting
authority will determine whether the
technology is the best technology
available for impingement mortality
reduction at the site and include permit
conditions to ensure optimal
performance of the screens. In other
words, the owner or operator of a
facility will comply with the BTA
standard for IM at § 125.94(c)(5) if that
facility uses modified traveling screens
as defined at § 125.92(s), and operates in
accordance with the permit conditions
established by the Director that ensure
the technology will perform as
demonstrated. As noted above, in
certain circumstances, under
§§ 125.94(c)(8), (9) and 125.94(g), the
Director may require additional
protective measures.
As stated in the June 11, 2012 NODA,
EPA does not intend for facilities to
install closed-cycle cooling solely for
the purpose of meeting the IM
requirements. In fact, EPA expects all
facilities could comply with IM
requirements without relying on
retrofitting to closed-cycle cooling (see
Exhibit VIII–1, showing expected
compliance alternative based on
technologies in place today). If a facility
chooses to comply with the BTA IM
standard by installing and operating
traveling screens, the screens must meet
the definition of modified traveling
screens provided at § 125.92(s). These
may include, for example, modified
Ristroph screens with a fish handling
and return system, dual flow screens
with smooth mesh, and rotary screens
with fish returns such as vacuum
pumps. EPA based the regulatory
definition on the commonly found
features of modified traveling screens
used in developing the BTA
impingement mortality standard.
In addition, the final rule also
provides a compliance option that
would allow facilities the option of
demonstrating to the Director on a sitespecific basis, similar to the showing for
modified traveling screens, that a
system or combination of technical and
operational measures will achieve the
BTA standard for impingement
mortality at a particular site. Using a
combination of technical and
operational measures as the basis for
demonstrating compliance allows
facilities the opportunity to take credit
for intake location, flow reduction, or
other measures already employed to
reduce the rate of impingement. Further,
the combination of technical and
operational measures provides the
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flexibility to use a system of approaches
to reducing impingement and
impingement mortality. This may
include technologies that were not
found to reduce impingement
consistently or in all circumstances, but
that on a site-specific basis have been
demonstrated to provide a high level of
performance. For example, a facility
might employ light and sound to induce
an avoidance response from certain
species. This might not alone address
impingement mortality for all nonfragile species at the intake, therefore
additional measures (intake location,
barrier nets, etc.) would also be applied,
to minimize the rate of impingement or
impingement mortality.
For both the screens and system of
technologies, a two year study must be
completed in which biological data
collection is used to make site-specific
adjustments to screens or the
combination of technologies in order to
optimize performance at that facility.
Those optimal operating parameters
then become permit conditions. For
facilities that have already installed
traveling screens or the technologies
associated with the system approach,
EPA has combined the two year
biological study with the other permit
application and rule requirements for
biological data collection, including the
Source Water Baseline Biological
Characterization Data. In this manner,
EPA is establishing a consistent set of
biological study requirements, with an
overall reduction in the burden of the
required level of biological monitoring.
Lastly, a facility may choose to
comply with the numerical
impingement mortality performance
standard that was established based on
the BTA technology. If a facility chooses
this compliance option, it must conduct
periodic monitoring to demonstrate
compliance. Under this last compliance
option, a facility could implement
innovative technologies to address
impingement mortality and
subsequently demonstrate that their
performance is as good as, or better
than, a modified traveling screen with
fish handling and return system. EPA
envisions that after a sufficient
demonstration period of a technology’s
performance, the facility will be able to
qualify its operation under the previous
option.
For entrainment, on the other hand,
EPA could not identify one technology
that represented BTA for existing
facilities on a national basis, for the
reasons explained in detail below.
Instead, the national BTA entrainment
standards for existing facilities
establishes a detailed regulatory
framework for the determination of BTA
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entrainment requirements by the
permitting authority on a site-specific
basis.
While site-specific permit
requirements are not new, what is
different about this approach from the
current requirement for permits to
include 316(b) conditions is that for the
first time, EPA is establishing a detailed
specific framework for determining BTA
entrainment control requirements. Thus,
the rule identifies what information
must be submitted in the permit
application, prescribes procedures that
the Director must follow in decision
making and factors that must be
considered in determining what
entrainment controls and associated
requirements are BTA on a site-specific
basis.
As previously noted, EPA looked at a
number of factors in considering what
national entrainment standard it should
adopt. As discussed in detail in the
following section, EPA identified only
one high performing technology as a
potential BTA candidate for
entrainment: closed-cycle recirculating
systems as defined at § 125.92(c)(1).
While there are other technologies for
entrainment that are available or
demonstrated, they are not uniformly
high performing technologies. See TDD
Chapter 6 for more information
regarding the lack of intermediate
performing technologies for
entrainment. EPA has identified the
following specific factors as the key
elements in its decision not to prescribe
this technology as the basis for a
national BTA standard for entrainment:
land availability, air emissions, and
remaining useful plant life. How these
factors dictated EPA’s decision is
discussed below.
For new units at existing facilities,
EPA has established BTA requirements
to minimize impingement mortality and
entrainment, based on flow reduction
commensurate with closed-cycle
cooling. The rest of this section
describes in detail the above
considerations.
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C. Technologies Considered To
Minimize Impingement and
Entrainment
As described in Chapter 4 of the TDD,
power plants and manufacturers
withdraw large volumes of cooling
water daily. Cooling water withdrawals
are responsible for over half of surface
water withdrawals for all uses in the
United States, including agriculture and
municipal uses. The purpose of cooling
water withdrawals is to dissipate that
portion of the heat that is a by-product
of industrial processes that facilities
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have not harnessed to a productive end
and therefore view as waste heat.
The majority of environmental
impacts associated with intake
structures are caused by water
withdrawals that ultimately result in the
loss of aquatic organisms. These losses
might be from impingement,
entrainment, or both. Impingement
occurs when organisms are trapped
against the outer part of a screening
device of an intake structure.46 The
force of the intake water traps the
organisms against the screen and they
are unable to escape. Not all organisms
in the incoming water are impinged,
however. Some might pass through the
screening device and travel through the
entire cooling system, including the
pumps, condenser or heat exchanger
tubes, and discharge pipes. This is
referred to as entrainment. Various
factors lead to the susceptibility of an
organism to impingement or
entrainment. For more detailed
discussion of impingement and
entrainment and the associated
mortality and other effects, see Section
III above.
For purposes of this rule, EPA is
adopting the following conventions for
defining impingement and entrainment
and mortality:
• Impingement: Occurs when any life
stage of fish and shellfish are pinned
against the outer part of an intake
structure or against a screening device
during intake water withdrawal.
Impingement may also occur when an
organism is near a screen but unable to
swim away from the intake structure
because of the water velocity at the
intake.
• Entrainment: Occurs when any life
stages of fish and shellfish are drawn
into the intake water flow entering and
passing through a cooling water intake
structure and into a cooling system.
• Impingement Mortality: The death
of fish or shellfish due to impingement.
It may also include organisms removed
from their natural ecosystem and
lacking the ability to escape the cooling
water intake system and thus subject to
mortality. Note that impingement
mortality need not occur immediately.
Impingement may cause harm to the
organism which results in mortality at
some time after impingement. For
purposes of this rule, EPA has defined
impingement mortality as the death of
those organisms collected or retained by
a sieve with a maximum opening of 0.56
46 Typically, cooling water intake structures use
various screening devices to prevent objects (e.g.,
debris, trash) from being drawn in with the cooling
water and ultimately clogging or damaging the
cooling water system, especially the condenser or
heat exchanger components.
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inches; this includes both the 3⁄8-inch
sieve and a 1⁄2-inch by 1⁄4-inch mesh.47
• Entrainment Mortality: The death of
fish or shellfish due to entrainment.
This is typically associated with
mortality related to small organisms that
pass the entire way through a facility
and are killed as a result of thermal,
physical, or chemical stresses. This term
also includes the death of those fish and
shellfish that may occur on fine mesh
screens or other technologies used to
exclude the organisms from
entrainment. For purposes of this rule,
EPA defined entrainment mortality as
the death of those organisms passing
through a sieve with a maximum
opening of 0.56 inches.
Impingement mortality is typically
less than 100 percent of the impinged
organisms if a fish return or backwash
system is employed. Impingeable
organisms are generally not very small
fish or early life stages (e.g., those that
can pass through 3⁄8-inch mesh screens),
but typically are fish with fully formed
scales and skeletal structures and welldeveloped survival traits such as
behavioral responses to avoid danger.
EPA’s data demonstrate that, under the
proper conditions, many impinged
organisms can survive.
Entrainable organisms generally
consist of eggs and early life stage
larvae. Early larvae generally do not
have skeletal structures, have not yet
developed scales, and in many cases are
incapable of swimming for several days
after hatching. EPA has found that
entrainable organisms that are collected
after interaction with the CWIS show
poor survival in the case of most eggs,
and essentially no survival of larvae.
Consequently, on the basis of the record
information it has reviewed, EPA
concluded for purposes of this rule that
all entrained organisms die, i.e., no
entrained organisms survive. (See, for
example, 76 FR 22188 [April 20, 2011]
and 69 FR 41620 [July 9, 2004].)
Therefore, without entrainment control,
entrainment is assumed to lead to
entrainment mortality. Also see Chapter
A7 of the Phase II Regional Studies
Document (DCN 6–0003; EPA–HQ–OW–
2002–0049–1490).
Whether an organism near a cooling
water intake structure is impinged or
entrained is a function of the screen
mesh size. Holding the number and size
distribution of organisms at the intake
constant, a larger screen mesh size will
result in relatively more entrainment,
while a smaller mesh size will result in
47 Mesh sizes of 3⁄8″ are commonly referred to as
coarse mesh; this refers to the size of the screen
opening (in contrast to fine mesh) and not the
roughness of the mesh material.
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relatively more impingement.
Historically, traveling screens deployed
by power plants used a 3⁄8-inch mesh
size. For this reason, most studies and
reports referring to impingement are in
fact referring to those organisms
impinged on a 3⁄8-inch mesh screen.
Similarly, entrainable organisms are
those organisms fitting through a mesh
of less than or equal to 3⁄8 of an inch.
This also means the majority of
entrainable organisms are composed of
eggs, larvae, and smaller juveniles. More
recent studies, particularly those that
evaluate mesh sizes smaller than 3⁄8 of
an inch, continue to refer to
impingement as any organism caught on
the screen. This can cause some
confusion because many organisms that
would have been entrained with a 3⁄8inch mesh instead become impinged by
the finer mesh. These are referred to as
impinged entrainables or ‘‘converts.’’
EPA has also found that most studies of
entrainment are biased toward the larger
(older) larvae with higher survival rates
and do not analyze survival of smaller
larvae. This bias implies a focus on
larvae body lengths sufficient to have
begun scale and bone development, and
it generally reflects the more motile
early life stages. EPA found that these
study findings cannot be applied to
smaller and less motile life stages,
which are incapable of avoidance
responses. It is also important to note
that preventing entrainment by some
exclusion technologies might result in
very high entrainment reductions by
converting entrainment to impingement,
but these impinged organisms may have
an even lower likelihood of surviving
impingement than larger potentially
impinged organisms. Therefore, while
entrainment refers specifically to
passage through the cooling water
intake system, entrainment mortality
also includes those smaller organisms
killed by exclusion from the cooling
water intake system. Today’s rule uses
the 3⁄8-inch mesh size as part of the
definition of impingement mortality and
entrainment mortality as a means of
clearly differentiating those organisms
that might be susceptible to
impingement or entrainment, and
thereby avoids any confusion over the
status of impinged entrainables or
‘‘converts.’’
Generally, two basic approaches can
be used to reduce impingement
mortality and entrainment. The first
approach is flow reduction, where the
facility installs a technology or operates
in a manner to reduce or eliminate the
quantity of water being withdrawn.
Reduced volumes of cooling water
produce a corresponding reduction in
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impingement and entrainment and,
therefore, reduced impingement
mortality and entrainment mortality. It
should be noted that, at electric
generators, flow reduction could be
achieved, perhaps most effectively, by
installing more energy efficient
production, thereby requiring less
cooling per unit of electricity generated.
The second way to reduce impingement
and entrainment is to install
technologies or operate in a manner that
either (1) gently excludes organisms or
(2) collects and returns organisms
without harm. Exclusion technologies or
practices divert those organisms that
would have been subject to
impingement and entrainment away
from the intake. Collection and return
technologies are installed to collect and
return organisms to the source water,
allowing impingement to occur but
possibly preventing impingement
mortality.
Although not available to all facilities,
two other approaches to reducing
impingement and entrainment are (1)
relocating the facility’s intake to a less
biologically rich area in a waterbody,
and (2) reducing the intake velocity.
Relocating an intake farther from shore
or at greater depths can be effective at
entrainment reduction but is not
available to many inland facilities
because the distance or depths required
to reach less biologically-productive
waters are not generally available.
Further, while a far offshore intake may
exhibit a lower density of organisms, the
species found will change as a function
of distance from the shoreline as well as
depth in the water column. Therefore, it
may not always be desirable to relocate
an intake structure. A reduced intake
velocity provides motile organisms the
opportunity to swim away from the
intake structure. This approach can be
very effective in reducing impingement
but has no effect on entrainment.
Sections 1 and 2 below further
describes flow-reduction and exclusion
technologies.
1. Flow Reduction
Flow reduction is commonly used to
reduce impingement and entrainment.
For purposes of this rulemaking, EPA
assumes that entrainment and
impingement (and associated mortality)
at a site are proportional to source water
intake volume. Thus, if a facility
reduces its intake flow, it similarly
reduces the amount of organisms subject
to impingement and entrainment.48
48 Impingement rates are related to intake flow,
intake velocity, and the swimming ability of the fish
subject to impingement. Entrainment is generally
considered to be proportional to flow and therefore
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Some common flow reduction
technologies are variable frequency
drives and variable speed pumps,
seasonal operation or seasonal flow
reductions, unit retirements, use of
alternate cooling water sources, water
reuse, and closed-cycle cooling systems.
For additional detailed information on
these technologies as well as others, see
Chapter 6 of the TDD, ‘‘California’s
Coastal Power Plants: Alternative
Cooling System Analysis’’ (DCN 10–
6964), and EPRI’s ‘‘Fish Protection at
Cooling Water Intake Structures: A
Technical Reference Manual’’ (DCN 10–
6813).
a. Variable Frequency Drives and
Variable Speed Pumps
A facility with variable speed drives
or pumps operating at their design
maximum can withdraw the same
volume of water as a conventional
circulating water pump. However,
unlike a conventional circulating water
pump, variable speed drives and pumps
allow a facility to reduce the volume of
water being withdrawn for certain
periods. The pump speed can be
adjusted to reduce water withdrawals
when cooling water needs are reduced,
such as when ambient water
temperatures are colder (and therefore
capable of dissipating more heat), when
fewer generating units are operating or
when fuel is more efficiently burned. In
site visits, EPA found that variable
drives and pumps were typically used at
units operating below capacity, such as
load-following units. EPA estimates that
facilities with intermittent water
withdrawals could achieve a 5 to 10
percent reduction in flow.49 For this
reason, many baseload generating units
and continuously operated
manufacturing processes will obtain
limited reductions in flow from using
these technologies. EPA is further aware
that some facilities may need to
a reduction in flow results in a proportional
reduction in entrainment, as EPA assumes for
purposes of national rulemaking that entrainable
organisms are uniformly distributed throughout the
source water. EPA has consistently applied this
assumption throughout the 316(b) rulemaking
process (for a discussion of proportional flow
requirements in the Phase I and II rules see, e.g.,
66 FR 65276 and 69 FR 41599; also see EPA’s 1977
draft guidance manual for 316(b), available at DCN
1–5045–PR from the Phase I docket) and continues
to assume that it is broadly applicable on a national
scale and is an appropriate assumption for a
national rulemaking. EPA recognizes that this
assumption does not necessarily apply when
relocating or varying the time pattern of
withdrawals, such that these may be effective
strategies to reduce impingement and entrainment
in some locations.
49 Withdrawals of colder water could allow
facilities to reduce their intake flow using variable
drives and pumps, but EPA does not have data on
the efficacy or availability of this approach.
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withdraw water for cooling even while
the facility is not in production, such as
facilities on standby status, or nuclear
facilities where the heat energy
generated by fission must still be
dissipated while the facility is out of
service. As a result, EPA determined
that variable frequency drives and
variable speed pumps, while useful in
specific setting and circumstances, are
not BTA candidates because the flow
reduction technologies have limited
application and availability, and are not
a high performing technology as an
entrainment control measure.
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b. Seasonal Operation or Seasonal Flow
Reductions
Seasonal operation or seasonal flow
reduction refers to the reduction or
elimination of a quantity of water
withdrawn either during periods of low
demand for electricity output, or to
coincide with certain biologically
important periods. Most facilities that
currently employ seasonal flow
reductions do so to limit thermal
impacts or to reduce entrainment,
because entrainment often has a peak
season, particularly during a local
spawning season. Freshwater drum, for
example, perform broadcast spawning
during early summer when water
temperatures reach about 65 degrees
Fahrenheit.
During specific peak entrainment
periods, a facility could scale back its
operation (or perhaps not operate at all),
thereby reducing or eliminating the
volume of cooling water withdrawn.
This could be accomplished through a
combination of variable speed pumps or
shutting down some portion of the
pumping system. Seasonal flow
reduction could also consist of
operating a closed-cycle recirculating
system as defined at § 125.92(c)(1) as
once-through during part of the year and
as a closed-cycle system during the peak
entrainment season. (EPA notes that
closed-cycle cooling has been rejected
as noted in the previous section, and
discussed in more detail below.)
Facilities could also choose to schedule
regular maintenance to occur during
these high entrainment periods. These
maintenance activities often require the
facility to reduce or cease operations
and can be timed to coincide with the
most biologically productive periods.
Through site visits, EPA gathered
information on species present at
facilities and has identified some sites
where entrainment appears to be
significant all year long, and other sites
where peak entrainment occurs in as
few as three to four months of the
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year.50 However, if all power-generating
facilities in a local area were to stop
operating at the same time, there could
be difficulty in supplying electricity to
the area. Therefore, EPA concluded that
seasonal operations have limited
nationwide application for controlling
entrainment and are thus not widely
available entrainment reduction
technology.
Impingement is generally more
sporadic, less predictable, and more
difficult to address with seasonal
operation. For example, clupeid species,
such as gizzard shad, experience
impingement episodes sporadically
throughout the winter and spring during
periods of especially cold water
temperatures, or sporadically
throughout the summer and fall during
periods of low dissolved oxygen.
c. Unit Retirements
Some power plants units have been
retired and others have essentially
ceased all operations but have not been
formally retired or decommissioned.
The reasons for their inactivity vary,51
but the end result is the facility no
longer needs cooling water withdrawals
for these units. Similarly, manufacturers
may retire processing units as market
demand changes, process lines are
moved to other sites, or production
technologies change. Unit closures
provide clear reductions in flow, but the
demand for electricity (or other
products) might dictate that production
be increased at the facility in question
or at another facility altogether; there is
usually no guarantee that the intake
flow will be permanently retired. EPA
expects flow reductions due to unit
closures could be reasonably included
as part of a facility’s impingement
mortality and entrainment reductions
strategy. Given the number of variables
involved in the decision to retire a unit
and the likelihood of a facility having a
unit that is ready to retire at
promulgation of the final rule, unit
retirements are not a nationally
available entrainment reduction
measure. See Section VIII for further
discussion of how a facility can take
credit for flow reductions attributable to
unit closures.
50 See DCN 10–6702 and its attachments for
examples of spawning ‘‘seasons.’’
51 Note that some generating units are retired by
the owner (i.e., the unit is no longer considered
sufficiently profitable to operate) or is rarely
dispatched by its independent system operator for
market-driven reasons (i.e., the unit cannot deliver
at a competitive price except during limited peak
seasons; see also § 125.94(c)(12)). They may also be
mothballed, placed on cold storage, or maintained
in various other states of operational readiness.
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d. Use of Alternate Cooling Water
Sources
While not reducing the overall usage
of water at a facility, using an alternate
source of cooling water can reduce
impingement and entrainment if the
alternate source substitutes for
withdrawals from surface waters. An
example is using ‘‘gray’’ water as a
source of cooling water, such as a
facility that reaches an agreement with
a nearby wastewater treatment plant to
accept the wastewater treatment plant’s
effluent as a source of cooling water.52
Such alternate sources are limited by
available capacity and consistency of
flow. Increasing competition for these
sources of water may make this a more
challenging approach for existing
facilities than for new facilities that are
not yet fixed in location. In principle,
alternate sources could be used to fulfill
either a fraction or all of a facility’s
cooling water demands. In practice, the
location of alternate sources, the costs of
moving water from the alternate source
to the facility, and whether the facility
uses a once-through or closed-cycle
recirculating system as defined at
§ 125.92(c) will determine whether the
alternate source can meet all or a
portion of the facility’s cooling water
needs. All these factors limit the
widespread availability of alternate
cooling water sources as an entrainment
reduction measure, however use of
alternative sources of cooling water
such as wastewater treatment effluent
could be attractive for certain facilities
where the cost of retrofitting or other
site-specific circumstances are
favorable.53
e. Water Reuse
Typically associated with
manufacturing facilities, water reuse
(defined as using water for multiple
processes) can reduce the volume of
water needed for cooling, process, or
other uses. For example, a facility might
withdraw water for non-contact cooling
water and then reuse the heated effluent
as part of an industrial process. In effect,
the facility has eliminated the need to
withdraw additional water for the latter
52 See, for example, EPA’s site visit report for
PSEG’s Linden Generating Station (DCN 10–6557),
which has a capacity of 1230 MW, 35 percent CUR,
and uses 7–8 mgd of gray water as the sole source
of makeup water for its cooling towers.
53 For maps showing which electric generators are
near a source of available reuse water for cooling,
see Tidwell, V., J. Macknick, K. Zemlick, J. Sanchez,
and T. Woldeyesus. 2013. ‘‘Transitioning to Zero
Freshwater Withdrawal for Thermoelectric
Generation in the United States.’’ (submitted). See
also the accompanying presentation given at the
American Geophysical Union Fall 2012 Meeting
available at https://www.nrel.gov/docs/fy13osti/
57444.pdf.
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process. EPA has observed significant
water reuse at manufacturing facilities
but has not developed national level
data for such reuse because of the range
of different manufacturing sectors and
the significant variability in
manufacturing processes appropriate for
reuse. For example, during site visits,
EPA observed that it may be difficult to
quantify specific water reuse at complex
facilities. (See, for example, the site visit
report for ArcelorMittal, a steel mill at
DCN 10–6551.) For additional detail on
water usage in specific industrial
sectors, see Chapters 4 and 8 of the
TDD.
Increasingly, electric utilities are
adopting water reuse to meet a portion
or all of their cooling water demands.
Water reuse can enhance the reliability
of power generation in water-limited
environments. Given the complex use
(and reuse) patterns for some facilities
and the lack of reuse at other facilities,
water reuse cannot be considered as a
widely available entrainment reduction
option.
f. Closed-Cycle Cooling Systems
Closed-cycle cooling systems allow a
facility to transfer its waste heat to the
environment using significantly smaller
quantities of water relative to oncethrough cooling, and in some cases no
water. The main types of closed-cycle
cooling systems are wet cooling, dry
cooling, hybrid cooling, and
impoundments. Each is described
below.
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i. Wet Cooling Systems
In a wet cooling system, cooling water
that has absorbed waste heat transfers
that heat through evaporation of some of
the heated water into the surrounding
air and recirculates the now cooled
water to continue the cooling process.54
This process enables a facility to reuse
the remaining water, thereby reducing
the quantity of water that must be
withdrawn from a waterbody. Because
the heat is transferred through
evaporation, the amount of water
withdrawn from the water source is
greatly reduced, though not eliminated
completely, because make-up water is
required to replace that lost through
evaporation and blowdown.55 The two
54 In addition, a smaller portion of the heat is also
removed through direct contact between the warm
water and the cooler surroundings; this is known
as sensible heat.
55 Cooling towers must replace water lost to
evaporation; this is referred to as makeup water.
Additionally, as water evaporates, dissolved solids
and other materials gradually increase in
concentration in the circulating water and can
cause operational difficulties. To minimize these
issues, cooling tower operators continually
discharge a small portion of the circulating flow
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main types of wet cooling systems are
natural draft and mechanical. While wet
cooling systems reduce withdrawals
significantly relative to once-through
systems, they can increase the
consumptive use of water because they
rely on evaporation (which is not
returned to the waterbody) for heat
dissipation. When once-through cooling
is used and withdrawals are a
significant portion of the source
waterbody, the return of heated water
might contribute to greater evaporation
from the waterbody relative to the
waterbody’s normal evaporation rate.
EPA does not have conclusive data on
the relative magnitude of these effects,
but the data do suggest that the relative
difference in evaporation is not so great
that it will play a major role in
determining a cooling system type in
most watersheds. EPA examined
available information on evaporation
losses in DCN 12–6673, including a
comparison to evaporative losses from
the downstream effluent plume of oncethrough cooling systems. While EPA
recognizes that evaporative losses from
closed-cycle systems are greater, EPA’s
analysis does not suggest that the
difference is substantial enough to
outweigh the significant reduction in
adverse environmental impacts to
aquatic organisms. However, the relative
loss of water through evaporation for
closed-cycle and once-through systems
is site-specific, depending on the exact
design of the systems.
There are two common designs for
wet cooling systems. A natural draft
cooling tower can be as tall as 500 feet
and has a hyperbolic shape. The height
of these towers creates a temperature
differential between the top and bottom
of the tower, which creates a natural
chimney effect that transfers heat as
heated water contacts rising air. In
contrast, mechanical cooling towers rely
on motorized fans to draw air through
the tower and into contact with the
heated water.56 These towers are much
shorter than natural draft cooling towers
(typically 30 to 75 feet tall) and can be
built in groups. Mechanical cooling
towers may require more land area than
natural draft cooling towers for an
equivalent amount of cooling. Both
types of towers require electricity for
pumps, but mechanical draft towers also
require electricity to operate the fans. In
both cases, the electricity need of the
towers reduces an electric generating
and replace it with makeup water; this is referred
to as blowdown.
56 Modular cooling tower units provide an
additional cooling tower alternative. Modular
cooling towers resemble mechanical cooling towers,
but are portable, typically rented for short-term
periods and quickly assembled.
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facility’s net generating output. Thus,
the monetary and environmental costs
of this reduction in energy efficiency
must be considered. These
environmental costs include human
health and welfare effects from
increased air emissions (from burning
additional fuel to make up for the power
that cannot be sold) and the global
climate change effects of increased
greenhouse gas output at fossil-fueled
facilities (these costs are now explicitly
considered in the benefit-cost analysis;
see Section X below). Both natural draft
and mechanical cooling towers can
operate in freshwater or saltwater
environments. Saltwater applications
typically require more make-up water
than freshwater applications, making
them less efficient in reducing water
withdrawals. Optimized cooling towers
can achieve flow reductions of 97.5 and
94.9 percent or better for freshwater and
saltwater sources, respectively.
ii. Dry Cooling Systems
Dry cooling systems virtually
eliminate the need for cooling water
withdrawals.57 Unlike wet cooling
systems, waste heat in dry cooling
systems is transferred completely
through convection and radiation, rather
than evaporation. Direct dry cooling is
much like a car radiator; turbine exhaust
steam passes through tubes or fins for
cooling, and the condensate is returned
to the boiler to be reheated into steam
to propel the turbine. The system is
completely closed to the atmosphere,
and there is no contact between the
outside air and the steam or the
resulting condensate. Because of the
heavy reliance of dry cooling on
ambient air temperatures and the lower
efficiency of heat transfer through
convection and radiation, dry cooling
systems are much larger and therefore
more expensive 58 than wet cooling
systems for a given cooling load. While
dry cooling systems are not uncommon
in the U.S. (see DCN 10–6943), they
have typically been built at smaller
generating units or in areas where
limited water supplies might make
57 Dry cooling systems blow down some of the
circulating water in the cooling system to prevent
the buildup of materials in the condenser. However,
the volume of makeup water is extremely low—a
dry cooling system typically reduces intake flows
by 98–99 percent over a comparable once-through
cooling system.
58 The construction and capital costs for dry
cooling towers have been reported as four to 10
times more expensive as wet cooling towers, and
the auxiliary power consumption for dry cooling is
higher than for wet cooling. See DCN 10–6679. EPA
recognizes that costs for dry cooling may have
decreased since this document was written, but
costs for dry cooling are still markedly higher than
those for wet cooling. The other challenges
associated with dry cooling remain unchanged.
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uncertain the availability of either oncethrough cooling or wet cooling make-up
water, such as the arid southwestern
United States. Dry cooling has not been
used for circulating water cooling at
nuclear facilities.
iii. Hybrid Cooling Systems
In certain applications, a facility
could choose a hybrid cooling system
design that incorporates elements of
both wet and dry cooling. Typically, the
base of the tower functions as a wet
cooling system and the upper portion as
a dry cooling system. The most common
reason for this design is to reduce the
visible plume of water vapor, which is
accomplished by recapturing some of
the water vapor evaporated in the wet
portion of the tower. This design is also
usually much shorter than natural draft
wet towers and can also include plume
abatement controls. Another version of
the hybrid cooling system also includes
both wet and dry cooling sections, but
the dry section functions to directly cool
a portion of the turbine exhaust steam.
The benefits of such a tower may
include substantial water savings as
well as reduction in power plant
efficiency losses associated with just dry
cooling.
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iv. Impoundments
Impoundments are surface
waterbodies that serve as both a source
of cooling water and a heat sink. As
with cooling towers, impoundments
rely on evaporative cooling to dissipate
the waste heat; a facility withdraws
water from one part of the
impoundment and then discharges the
heated effluent back to the
impoundment, usually in another
location to allow the heated water time
to cool. Depending on local hydrology,
impoundments may also require
makeup water from another waterbody.
Impoundments can be man-made or
natural, and can be offset from other
water bodies or as part of a ‘‘run of the
river’’ system (the latter are sometimes
referred to as cooling lakes).
2. Exclusion and Collection
Technologies
Over the last several decades,
numerous technologies in addition to
specific flow reduction measures such
as velocity controls and closed-cycle
cooling have been developed in an effort
to minimize impingement mortality and
entrainment associated with cooling
water intake systems. The following
section summarizes the most widely
used technologies and the most effective
and best-performing technologies, such
as screens, barrier nets, aquatic filter
barriers, and collection and return
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systems. For additional detailed
information on these technologies and
others, also see Chapter 6 of the TDD,
‘‘California’s Coastal Power Plants’’
report (DCN 10–6964) or EPRI’s ‘‘Fish
Protection at Cooling Water Intake
Structures’’ report (DCN 10–6813).
a. Screens
There are several types of screens that
offer protection that are discussed
below, including traveling screens and
cylindrical wedgewire screens. Not
described in this section are fixed
screens that are used simply for the
purpose of debris exclusion but do not
offer protection to fish, larvae, and eggs.
i. Traveling Screens
Traveling screens are a technology in
place as part of most cooling water
intake structures. These screens
originally were designed to prevent
debris from entering the cooling water
system, but they also prevent some fish
and shellfish from entering the cooling
water system. Traveling screens have
been installed in a wide variety of
operating and environmental
conditions: salt water, brackish water,
freshwater, and icy water, as well as
river, lake and tidal applications. On the
basis of the technical survey, EPA found
93 percent of electric generators and 73
percent of manufacturers employ
traveling water screens or other intake
screens. Many types of traveling water
screens (e.g., through flow, dual flow,
center flow) are used. The most
common design in the United States is
the through flow system. The screens
are installed behind bar racks (trash
racks) but in front of the water
circulation pumps. The screens rotate
up and, while out of the water, debris
and impinged organisms are removed
from the screen surface by a highpressure spray wash. Screen wash
cycles are triggered either manually or
by a certain level of head loss across the
screen (indicating clogging). By
definition, this technology works by
collecting (i.e., impinging) fish and
shellfish on the screen. Ideally, traveling
screens would be used with a fish
handling and return system, as
discussed below. The return system
should be regularly maintained to
prevent biofouling or other blockages
that may affect survival.
ii. Cylindrical Wedgewire Screens
Unlike traveling screens, cylindrical
wedgewire screens are a passive intake
system. Wedgewire screens, also called
‘‘V’’ screens or profile screens, consist of
triangular-shaped wires arrayed on a
cylindrical framing system, with long
slots between the wires, lengthwise
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along the screen. Slot sizes for
conventional traveling screens typically
refer to a square opening (3⁄8 inch by 3⁄8
inch) that is punched, molded, or
woven into the screen face. Wedgewire
screens are constructed differently,
however, with the slot size referring to
the distance between longitudinally
adjacent wires. These screens are
designed to have a low through-slot
velocity (less than 0.5 fps or 0.15 meter
per second) and typically have smaller
slot sizes than a coarse mesh traveling
screen. The entire wedgewire structure
is submerged in the source waterbody.
(See Chapter 6 of the TDD for an
illustration of these screens.)
When necessary conditions regarding
placement in the waterbody are met,
these screens exploit physical and
hydraulic exclusion mechanisms to
achieve consistently high impingement
reductions, and as a result,
impingement mortality reductions.
Wedgewire screens require an ambient
crossflow current to maximize the
sweeping velocity provided by the
waterbody. The screen orientation
allows the crossflow to carry organisms
away from the screen allowing them to
avoid or escape the intake. Lower intake
velocities also allow fish to escape from
the screen face. Entrainment reductions
can also be observed when the screen
slot size is small enough and intake
velocity is low enough to exclude egg
and larval life stages.59 Limited
evidence also suggests that extremely
low intake velocities can allow some egg
and larval life stages to avoid the intake
because of hydrodynamic influences of
the crossflow. Therefore, performance is
dictated largely by local conditions that
are further dependent on the source
waterbody’s biological composition.
Costs of wedgewire screens increase
significantly as slot size and design
intake velocity decrease because the
cumulative size of the screen (or
number of screens) must grow in order
to accommodate the same flow of
cooling water. Wedgewire screens can
also employ cleaning and deicing
systems such as air-burst sparging to
help maintain open intake structures
and low intake velocities.
According to data from the industry
questionnaire, EPA’s site visits, and
industry documents, dozens of facilities
across the United States employ
cylindrical wedgewire screens.
However, wedgewire screens are not
feasible for all facilities, particularly
where intakes are in shallow water or
have limited shoreline frontage. Also,
59 Note that this is entrainment exclusion and not
necessarily related to the survival of entrainable
organisms.
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wedgewire screens might not be feasible
where the size and number of
wedgewire screens would interfere with
navigation of vessels. As described
above, locations also need to have an
adequate source water sweeping
velocity. Most of the performance data
for wedgewire screens is based on
coarse mesh slot sizes with an intake
velocity of 0.5 fps. Because it is
extremely difficult to measure
impingement and entrainment
reductions in the field, most
performance data for wedgewire screens
is based on barge and lab studies.60 EPA
does not have data on the performance
of fine mesh wedgewire screens on
entrainment survival. Consequently,
EPA has considered wedgewire screens
only for impingement mortality. For
additional discussion of the specific
design and operation of cylindrical
wedgewire screens, see Chapter 6 of the
TDD. The following section discusses
the importance of mesh size to
impingement mortality and entrainment
reductions.
iii. Screen Mesh Size Considerations
Coarse Mesh
Coarse mesh traveling screens are the
typical traveling screen fitted on the
majority of cooling water intakes. A
large number of facilities have intake
screens with 3⁄8-inch (9.5 mm) mesh
panels.61 This size mesh is common
because, as a general rule, the maximum
screen slot size is never larger than onehalf of the condenser tube diameter (the
condenser tubing is the narrowest point
in the cooling water system and, as
such, is most susceptible to clogging
from debris), and this tubing is typically
3⁄4 or 7⁄8 inch in diameter. Mesh of
3⁄8-inch (roughly 9.5 mm) size does not
prevent entrainment and without any
other precautions can lead to high
mortality of impinged fish. Coarse mesh
traveling screens have been in use by
both power plants and manufacturers
for more than 75 years and represent the
baseline technology. Similarly, the
majority of successful wedgewire
installations are coarse mesh.
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Fine Mesh
Fine mesh traveling and wedgewire
screens are similar to coarse mesh
screens. The only difference is the size
of the screen mesh. Fine mesh traveling
60 EPA expects that properly designed wedgewire
screens have a design intake velocity of 0.5 fps,
therefore intakes with wedgewire screens will meet
the impingement standard at § 125.94(c)(2) and
there is no need to separately pre-approve this
technology as in the remanded 2004 Phase II rule.
61 In today’s rule the EPA recognizes that 1⁄2- by
1⁄4-inch mesh is used in some instances and perform
comparably to the 3⁄8-inch square mesh.
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screens have been in use since the
1980s. Typically, facilities have
incorporated fine mesh in an effort to
reduce entrainment. The mesh size
varies, depending on the organisms to
be protected, but typically range from
0.5 to 5 mm. Data in the record
demonstrate that entrainment typically
decreases as mesh size decreases. Slot
sizes larger than 2 mm do not prevent
eggs from passing through the screen.
Converting traveling screens from coarse
mesh to fine mesh often requires adding
more screens in order to maintain the
same flow, since the open area of a fine
mesh screen is less than the open area
of a coarse mesh screen. Adding more
screens is one way to maintain that
flow.62 EPA estimates that as many as
17 percent of existing intakes could not
be enlarged to accommodate a 2 mm
mesh, and as many as 55 percent of
existing intakes could not accommodate
a 0.5 mm slot size under conditions of
low-intake velocities. For these reasons,
fine mesh screens are available for some
locations, but they are not the best
performing technology and are not an
available technology for the industry as
a whole for IM&E. For more details, see
Chapter 6 of the TDD.
b. Barrier Nets
Barrier nets are nets that fully encircle
the intake area of water withdrawal,
from the bottom of the water column to
the surface, and prevent fish and
shellfish from coming in contact with
the intake structure and screens.
According to data from the industry
questionnaire (as of the year 2000), at
least a half dozen facilities employ a
barrier net. Typically, barrier nets have
large mesh sizes (e.g., 1⁄2-inch or 12.7
mm) 63 and are designed to prevent
impingement. Because of the large mesh
size, they offer no reduction in
entrainment. They are often deployed
seasonally, wherever seasonal
migrations create high impingement
events or to avoid harsh winter
conditions that jeopardize integrity of
the net. Barrier nets also prevent
impingement of shellfish on the intake
traveling screen. Shellfish such as
crustaceans can pose a unique issue for
traveling screens; shellfish are not
impinged, but they can attach to the
traveling screen surface and are not
removed from the traveling screen by
pressure wash sprays. Barrier nets have
been shown to be helpful in this regard.
62 A facility could also increase its intake
velocity.
63 Barrier net mesh sizes vary, depending on the
configuration, level of debris loading, species to be
protected, and other factors.
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c. Aquatic Filter Barriers
Aquatic Filter Barriers (AFBs) consist
of water-permeable fabric panels with
small pores (less than 20 microns). They
are similar to barrier nets in that they
extend throughout the area of water
withdrawal from the bottom of the water
column to the surface. AFBs reduce
both impingement mortality and
entrainment because they present a
physical barrier to all life stages. The
surface area of an AFB is quite large
compared to a traveling screen, allowing
for extremely low water velocities. The
low velocity allows non-motile
organisms to drift away. EPA is aware
of one power plant that used an AFB but
notes that this facility recently ceased
operations.64 EPA has updated
performance data for AFB for small flow
intakes, but it does not have enough
data to evaluate the technology at large
intakes or in all water bodies. EPA does
not consider this technology to be
demonstrated and available as a
nationwide BTA candidate.
d. Collection and Return Systems
Conventional traveling screens were
not designed initially with the intention
of protecting fish and aquatic organisms
that become impinged against them. The
organisms were often handled in the
same manner as debris on the screens.
Marine life can become impinged
against the screens because of high
intake velocities that prevent their
escape. Prolonged contact with the
screens can suffocate organisms that are
unable to escape or result in descaling
injury and latent mortality. Organisms
that survive initial impingement and
removal are not always provided with a
specifically designed mechanism to
return them to the waterbody and are
often handled in the same way as other
screening debris. Other objects, such as
leaves and trash, that are collected on
the screen are typically removed with a
high-pressure spray and deposited in a
dumpster or debris return trough for
disposal. Exposure to high pressure
sprays and other screening debris can
cause significant injuries that result in
latent mortality or increase the
susceptibility to predation or reimpingement. Screens are rotated
periodically on a set time interval or
when the pressure differential between
the upstream and downstream faces
exceeds a set value.
Conventional traveling screen systems
have been modified to reduce
impingement-related mortalities with
64 This facility ceased operations for reasons
unrelated to any requirements or measures
addressing cooling water intake impingement or
entrainment.
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collection and return systems. In its
simplest form, these systems are
composed of a return flume or trough
with sufficient water volume and flow
to enable impinged organisms to return
to the source water. Return systems
should be designed to avoid predation
and latent mortality while organisms are
in the flume, maintain an appropriate
water depth in the flume for high
survival of the organisms, located at an
appropriate elevation to avoid large
drops of the organisms back to the
surface water (or large hydraulic jumps
if the end of the return is below the
water’s surface), and sited to avoid
repeated impingement of the organisms
by the intake structure.
Some facilities have modified
conventional coarse mesh traveling
screen systems to reduce impingement
mortality. They did this by removing
fish trapped against the screen and
returning them to the receiving water
with as few injuries as possible. The
first modified screens, also known as
Ristroph screens, feature capture and
release modifications. In the simplest
sense, these screens are fitted with
troughs (also referred to as buckets)
containing water that catch the
organisms as the screen rises out of the
water and the organisms are sprayed off
of the screen. The return component
consists of a mechanism to remove
impinged fish gently from the collection
buckets, such as a low-pressure spray.
The buckets empty into a collection
trough that returns fish to a suitable area
in the source waterbody. These
modified screens have shown
significant reductions in impingement
mortality compared with unmodified
screen systems.
Data from early applications of the
Ristroph screen design showed that
while initial survival rates might be
high at some installations, latent
mortality rates were higher than
anticipated. This indicated that
organisms could sustain significant
injuries during the impingement and
return process that were not
immediately fatal. According to a study
conducted by Ian Fletcher in the 1990s
(see DCN 5–4387), industry identified
several additional critical screen
modifications to address latent
mortality. These included redesigning
the collection buckets to minimize
turbulence, adding a fish guard rail/
barrier to prevent fish from escaping the
collection bucket, replacing screen
panel materials with ‘‘fish-friendly,’’
smooth woven mesh, and using a lowpressure wash to remove fish before any
high-pressure spray to remove debris.
The Fletcher analysis also identified
longer impingement duration,
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insufficient water retention in the
buckets, and exposure to the air and
temperature extremes as conditions that
could negatively affect fish survival.
Finally, these findings indicate that
modified Ristroph screens must be
rotated continually instead of the
periodic rotation schedule common
with conventional screen systems.
Performance data for modified traveling
screens with fish-friendly fish return
systems, sometimes referred to as postFletcher modifications, show low levels
of impingement mortality across a wide
variety of waterbody types and fish
species. Additionally, recently
developed screen designs (such as the
Passavant Geiger, Beaudrey WIP, and
Hydrolox screens) have also shown
promise in reducing impingement
mortality.
For additional and more detailed
discussion of the specific design and
operation of these screen modifications,
see Chapter 6 of the TDD.
3. Other Technological Approaches
a. Intake Location and Velocity Caps
The most common intake location for
a cooling water intake structure is along
a shoreline. In some water bodies,
however, shoreline locations are
thought to have a potential for greater
environmental impact because the water
is withdrawn from the most biologically
productive waters, especially those
containing a high density of organisms
in earlier life stages, such as nursery
areas. Some facilities employ an
offshore intake to withdraw water from
less biologically productive areas to
reduce impingement and entrainment
relative to intakes in more productive
shoreline areas. Reduction in
impingement mortality and entrainment
due to intake location is highly sitespecific. The greatest potential for
reductions is found with far offshore
locations at distances of several
hundred feet, not found on many rivers
and streams. Both depth and the
offshore location must be evaluated to
determine whether fish densities and
species distribution there are
substantially different than those near
the shoreline. Two areas where far
offshore locations are commonly used
today are the oceans and Great Lakes.
EPA found that several offshore
intakes are fitted with a velocity cap.65
Velocity caps are a physical structure
rising vertically from the sea bottom and
are placed over the top of an intake
pipe. Intake water is withdrawn through
openings in the velocity cap so that it
converts the direction of water flow into
65 Others can be fitted with a cylindrical
wedgewire screen, or might simply be an open pipe.
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the pipe from vertical to horizontal. The
velocity cap does not act to reduce the
velocity,66 but the horizontal flow
provides a physiological trigger in fish,
which induces an avoidance response to
reduce impingement mortality. The
velocity cap further serves to limit the
zone of influence of the intake to the
depth level at which the velocity cap is
situated, thus affecting only the life
stages that live at that depth. Velocity
caps are also usually equipped with
supports and bar spacing selected to
prevent larger aquatic organisms (e.g.,
sea turtles or marine mammals) from
entering the intake pipe. Because
velocity caps operate under the
principle that the organisms can escape
the current, they do not offer
entrainment reductions over and above
those achieved by being located
offshore. Reductions in entrainment
observed with velocity caps occur
because of the difference in organism
densities in far offshore deep water
compared to a surface intake at the
shoreline.
Far offshore velocity caps have
limited application in oceans and the
Great Lakes, are not available in other
water bodies, and are therefore not
available as a candidate for a national
BTA. However, the technology is a
demonstrated high performing
technology, and is therefore included as
a compliance alternative for those
facilities where the technology is
available. For additional and more
detailed discussion of the specific
design and operation of offshore intake
locations and velocity caps, see Chapter
6 of the TDD.
b. Reduced Intake Velocity
Impingement mortality can be
reduced greatly by reducing the
through-screen velocity in any screen.67
Reducing the rate of flow of cooling
water through the screen (throughscreen velocity) to 0.5 fps or less
reduces impingement of most fish
because it allows them to escape the
intake current. (See 66 FR 65274
[December 18, 2001] and DCN 2–028A,
EPRI’s ‘‘Technical Evaluation of the
Utility of Intake Approach Velocity as
an Indicator of Potential Adverse
66 EPA’s data show that velocity caps operate at
velocities above and below the 0.5 fps and can be
effective using either design.
67 Limited lab studies indicate that entrainment
also can decrease as through-screen velocity
decreases and that through-screen velocity can have
an effect on entrainment survival rates, although
such data is extremely variable by species (see DCN
10–6802 and DCN 10–6803). In any case, EPA does
not consider a reduced intake velocity as an
effective technology for reducing entrainment,
because entrainable organisms generally lack
motility.
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Environmental Impact Under Clean
Water Act 316(b).’’) As a result, some
facilities have designed and operate
their modified traveling screens or
wedgewire screens so as not to exceed
a through-screen velocity of 0.5 fps.
Swim speed studies demonstrate that
for most facilities, an intake velocity of
0.5 fps or less will result in 96 percent
or better reductions in impingement
mortality for most species. EPA notes
that preliminary results from recent
studies of fine mesh screens suggest that
at even lower intake velocities such as
0.25 fps, some hydrodynamic influences
may reduce entrainment mortality even
more, because flow dynamics are
nonlinear. It is unclear as to whether
such observations hold true when
cooling water withdrawals (water
volumes) are large. While higher intake
velocities are sufficiently protective for
some species of fish, the higher intake
velocities are not necessarily protective
of all life-stages. For example, younger
fish may not be strong swimmers or may
have not a developed avoidance
response. Therefore higher intake
velocities are not a high performing
technology. As noted previously, low
intake velocity has limited application,
and is therefore not available as a
candidate BTA technology. However,
the technology is a demonstrated high
performing technology, and is therefore
included as a compliance alternative for
those facilities where the technology is
available.
D. Technology Basis for Today’s Final
Rule
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As described above, EPA examined
the full range of technologies that
reduce impingement or entrainment or
both. From an assessment of all factors,
EPA identified one technology that is
best technology available for
minimizing the adverse impacts of
impingement mortality at existing
facilities: modified traveling screens
with a fish-friendly fish return. EPA
identified no single best technology that
is available for minimizing entrainment
at existing facilities for today’s final
rule. For new units at existing facilities,
EPA identified mechanical draft wet
cooling systems as BTA for both
impingement and entrainment.68
EPA did not identify any single
technology or group of technology
68 Although EPA also identified velocity
reduction to 0.5 feet per second or less as a
candidate best performing technology for
impingement mortality, EPA did not promulgate
requirements to reduce intake velocity as BTA
because it is not available at all facilities; however,
the final rule does allow facilities to comply with
intake velocity of 0.5 feet per second or less where
available.
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controls as the basis for establishing the
national BTA standard for entrainment
for existing units. Instead, EPA has
established a national BTA standard for
entrainment for existing units that
requires determination of BTA
entrainment requirements on a sitespecific basis in a structured permitting
setting. The framework for determining
entrainment requirements provides for
the consideration at a minimum of
certain specified factors that must be
considered in the Director’s
determination of the BTA controls.
1. Alternative Impingement Mortality
Standards for Existing Units
After considering all factors identified
above, EPA has concluded that modified
traveling screens, such as modified
Ristroph screens and equivalent
modified traveling screens with fishfriendly fish returns, are a best
technology available for minimizing
impingement mortality.69 These screens
use 3⁄8 inch, or similar, mesh with
collection buckets designed to minimize
turbulence, a fish guard rail/barrier to
prevent fish from escaping the
collection bucket; ‘‘fish-friendly,’’
smooth, woven or synthetic mesh; and
a low-pressure wash to remove fish
before any high-pressure spray to
remove debris. The fish removal spray
must be of lower pressure, and the fish
return must be fish friendly, provide
sufficient water and minimize
turbulence. Modified traveling screens
generally must be rotated continually to
minimize aquatic exposure to
impingement or to the air and thus
obtain the highest reductions in
impingement mortality.
Under the seventh option for
complying with the BTA impingement
mortality standard in today’s final rule,
a facility may rely on any technology it
chooses so long as it demonstrates
through biological compliance
monitoring that it achieves the required
12 month impingement mortality
performance standard 70 that EPA
calculated based on the performance of
the BTA technology—modified traveling
screens with fish return. As discussed in
the TDD (see, for example, TDD Exhibits
11–1 and 11–3), EPA based the 12
month percent mortality performance at
§ 125.94(c)(7) on data from facilities
69 EPA also considered recent screen designs
(such as the Passavant Geiger, Beaudrey WIP, and
Hydrolox screens) in evaluating impingement
mortality data. In fact, the data set used to calculate
the impingement mortality performance standard at
§ 125.94(c)(7) included a study of performance at a
facility employing a Passavant Geiger screen, as
well as a facility employing a Beaudrey WIP screen.
70 In the record, EPA may also refer to this as the
12-month percent survival performance standard,
% SPS, or the IM performance standard.
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with traveling screens modified with
features to improve the postimpingement survival of organisms such
as smooth mesh, continuous or nearcontinuous rotation of the screens,
buckets with guard rails, low pressure
sprays for collecting fish, and fish return
systems. The statistical basis for the 12
month impingement mortality
performance standard includes 26 sets
of 12 month survival percentages across
17 facilities demonstrating average
impingement mortality rates ranging
from 1.6 to 48.8 percent under
conditions of 18 to 96 hour holding
times. EPA established the 12 month
percent mortality as 24 percent which is
the arithmetic average of the
impingement mortality rates from the 17
facilities. (This is consistent with EPA’s
proposed rule use of expected value of
the beta distribution which can be
calculated as the arithmetic average.)
Note: The 12 month impingement
mortality performance standard means
that no more than 24 percent of the
impinged fish may die or alternatively
at least 76 percent of the impinged fish
must survive. EPA has occasionally
used average annual limitations in the
effluent guidelines program, most
recently for the pulp and paper industry
category (40 CFR 430, promulgated in
1998). In these instances, such as the
technology-based BAT, EPA has defined
the annual average limitations to be the
average level demonstrated by the
technology. Thus, EPA’s approach to
calculating the 12 month percent
survival performance standard is
consistent with past practice.
EPA recognizes that variability in the
technology performance occurs due to
changes in seasons, differing intake
locations, higher mortality of certain
species, and speciation found in
different water bodies. By using a full 12
months of data, EPA has ensured that
the resulting performance standard
reflects the widest range of potential
conditions present in EPA’s database.
EPA has further incorporated variability
into the 12 month impingement
mortality performance standard by
basing it on data from 17 facilities
which collectively performed more than
1,500 sampling events beginning as
early as 1977. EPA notes that seven
facilities had mortality rates less than 10
percent which provides evidence that
facilities can, and have, maintained and
operated their systems in a manner
consistent with the performance
standard. Another four facilities
demonstrated impingement mortality
rates significantly greater than the
performance standard of 24 percent,
however, EPA notes these facilities were
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not required to optimize their
technology performance as part of their
study, and data collection was not
required to achieve a certain level of
performance.71 In each study, EPA has
identified elements of the technology
operation that a facility could modify to
achieve the 12 month percent
impingement mortality performance
standard. By using the 12 month percent
impingement mortality performance
standard, EPA has ensured that the
resulting performance standard reflects
the widest range of potential conditions
present in EPA’s database. In addition to
those studies meeting the criteria for use
in the 12 month percent survival
performance standard calculations,
there are further studies in EPA’s record
that provide additional performance
data showing facilities can, and have,
maintained and operated their systems
in a manner consistent with the
performance standard. EPA’s record
includes approximately 250 total
studies related to impingement (see
TDD Exhibit 11A–1).
Despite the overwhelming evidence
that the 12 month percent survival
performance standard of 24 percent was
consistent with demonstrated
performance for the best technology,
EPA considered other alternatives that
might incorporate more variability into
a performance standard. EPA concluded
that none of the alternatives were
consistent with the need for facilities to
demonstrate ongoing maintenance and
operations over a long period of time,
such as a year. Any alternative would be
less stringent and would allow facilities
to target long-term performance at a
level that would be less than the
optimal performance demonstrated by
facilities with the technology in place.
Further, the 12-month average
impingement mortality performance
standard will require a facility to
actively evaluate performance during
the 12 month period enabling the
facility to optimize the technology to
improve performance to counterbalance
a result above the standard by one
below the standard. If EPA had included
a monthly average standard, it would
have similarly needed to incorporate
allowances for exceedances. Allowing
for exceedances would have provided
no incentive for improving operations
71 For example, the Indian Point study states
‘‘Because of the preliminary nature of this study,
the effectiveness of the continuously operating fine
mesh traveling screen has not been fully evaluated.
Further studies incorporating controls for survival
testing, regulation of spray wash pressures,
collection efficiency tests, sampling during peak
impingement periods for all important species, and
better holding facilities, will provide more
conclusive results.’’
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for such exceedances. Therefore, EPA
determined that the 12 month
impingement mortality performance
standard is sufficient to ensure
performance consistent with best
technology available. For this reason,
EPA is not promulgating the monthly
average that was included in the
proposal. EPA’s decision also is
consistent with effluent guidelines
where compliance with the monthly
average limitation is not required for
facilities subject to a longer term
limitations such as an annual average
limitation (e.g., pulp and paper 40 CFR
430 Subpart B AOX limitation).
EPA did not include in the final rule
a number of requirements it had
considered at proposal. The proposed
rule would have required the seasonal
deployment of barrier nets on estuaries
and oceans as one element of the best
technology available for minimizing the
impingement mortality of shellfish. EPA
has opted not to include any specific
requirements for shellfish in the final
rule, because EPA’s review of the
impingement data it used to develop
today’s final rule impingement
performance standard includes data that
incorporate shellfish survival as part of
the performance standard. Further, as
previously explained, the final rule
provides for the Director to establish
additional requirements where
necessary.
EPA expects facilities complying with
§ 125.94(c) of today’s rule by
compliance option (7) to track their
compliance with the 12 month percent
impingement mortality performance
standard on an ongoing basis and to
proactively modify their technology or
operations when a trend in the sampling
suggests that they might be in danger of
exceeding the 12 month percent
impingement mortality performance
standard in the future. The 12 month
percent impingement mortality
performance standard requires that
impingement mortality not exceed 24
percent, calculated as the sum total
number of fish that were impinged and
died within the holding time divided by
the sum total number of fish impinged
for a 12-month period. EPA expects the
ratio will be calculated based either on
direct sampling counts, or based on both
counts being extrapolated to represent
annual counts. Because comments
provided data that expanding the
proposed 24 to 48 hour holding time
requirement would generally not affect
the observation of mortality due to
impingement, the regulation allows for
holding times from 18 to 96 hours.
As explained in more detail in
Section VI.E and G below, the BTA
technology for impingement does not
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minimize adverse environmental
impacts associated with entrainment.
2. Entrainment Standards for Existing
Units
As discussed below, EPA is not basing
BTA for entrainment at existing units
(that is, excluding new units at existing
facilities) on closed-cycle recirculating
cooling systems, a highly effective
technology, because this technology is
not available nationally and therefore
does not represent BTA. EPA also has
not identified any other effective,
available and demonstrated candidate
technology (or combinations of
technologies) for entrainment reduction
at existing units that is available
nationally. For other entrainment
technologies that might be available on
a site-specific basis, see Section VI.E.2
below and Chapter 6 of the TDD. EPA
did not select the other flow-reduction
technologies (such as variable-speed
drives and seasonal flow reductions) as
the technology basis for entrainment
control measures because these
technologies are not uniformly best and
are not broadly available for most
facilities. Further, EPA has not
identified a basis for subcategorizing
existing units at which flow reduction
technologies are feasible. The
effectiveness, availability, and utility to
a given facility of flow reduction or
other entrainment reduction methods
depends on site-specific geographical
and biological conditions as well as
operations of the facility. For example,
this is the reason that EPA did not select
relocation of a shoreline intake to far
offshore as a technology basis for the
BTA entrainment standard because this
technology is not widely available for
most facilities.
3. Impingement and Entrainment
Standards for New Units at Existing
Facilities
In contrast to existing units, installing
a closed-cycle cooling system at a new
unit is far less complex. The technology
is also highly effective, generally
achieving greater than 95 percent
reductions in IM and E (mechanical
draft (wet) cooling towers achieve flow
reductions of 97.5 percent for freshwater
and 94.9 percent for saltwater sources,
or by operating the towers at a
minimum of 3.0 and 1.5 cycles-ofconcentration, respectively). These
reductions in flow and the concurrent
reductions in impingement and
entrainment impacts are among the
highest reductions in adverse
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environmental impact possible at an
intake structure.72
As described below, EPA has
concluded that new units, in contrast to
existing units, have much greater
flexibility in terms of cooling system
design, construction scheduling, and
other factors that help minimize many
of the negative aspects associated with
closed-cycle cooling. For a more
detailed discussion of this rationale, see
below.
Under the final rule, a new unit at an
existing facility, where the facility that
withdraws or will withdraw more than
2 mgd when the new unit begins
operating will have requirements
similar to the requirements of a new
facility in Phase I. Under the rule, a new
unit (as defined at § 125.92(u) and
described above) is required to have a
flow limited to that which is
commensurate with a closed-cycle
recirculating system as it would be
applied to the new unit. Today’s final
rule also includes an alternative
approach (similar to Track II in Phase I),
in which a facility could comply with
the new unit standards by
demonstrating that the technologies and
operational measures employed will
reduce the level of adverse
environmental impact from any cooling
water intake structure used to supply
cooling water to the new unit to a
comparable level to that achievable by
implementing a closed-cycle
recirculating system as defined at
§ 125.92(c)(1).
As discussed above, today’s final rule
defines a ‘‘new unit’’ at an existing
facility as a stand-alone unit the
construction of which commences after
the effective date of today’s final rule.
New unit includes stand-alone units
that are added to a facility for purposes
of the same general industrial operation
as the existing facility. This is in
contrast to the definition of new facility,
where a new facility does not include
new units that are added to a facility for
purposes of the same general industrial
activity (40 CFR 125.83). The provision
‘‘for purposes of the same general
industrial operation’’ is explicitly
included in today’s final rule definition
of new unit at an existing facility for
clarity. A new unit may have its own
dedicated cooling water intake
structure, or the new unit may use an
existing or modified cooling water
intake structure. Any unit at an existing
facility that does not meet the new unit
72 Note that these metrics are not explicit
requirements for closed-cycle recirculating systems.
They simply represent what EPA views as examples
of characteristics of a properly operated and
maintained closed-cycle recirculating system, as
defined at § 125.92(c)(1).
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definition in today’s rule is subject to
the existing unit provisions.
EPA is adopting more stringent
requirements for new units at existing
facilities because such new units can be
designed and constructed without many
of the additional expenses and
operational disadvantages associated
with retrofitting an existing unit to
closed-cycle cooling. For example, the
incremental downtime that can be
associated with retrofitting to closedcycle cooling is avoided altogether at a
new unit. In addition, when new units
are added, the condensers can be
configured for closed-cycle, reducing
energy requirements (by substantially
reducing the turbine backpressure
energy penalty) and associated air
emissions.
The three factors that led EPA to
reject closed-cycle cooling as BTA
(described below in Section E) are far
less relevant for new units at existing
facilities than for retrofitting existing
units. This section discusses why EPA
concluded that each factor is not a
significant concern for new units, and
why the record supports EPA’s
conclusion that closed-cycle cooling is
an available and feasible technology for
new units at existing facilities.
• Land Availability: In contrast to
retrofitting the entire existing facility,
the amount of space dedicated to
closed-cycle for the new unit will be
limited to the new unit rather than the
entire facility. As a result, space
constraints will be much less of an
issue. New units also present the
opportunity to design an optimized
closed-cycle recirculating system for the
new unit. Retrofitting an existing facility
for the full intake flow of the facility
would require a facility to identify (or
possibly obtain) enough space to
accommodate the cooling towers and
associated equipment. Furthermore,
new units and their corresponding
cooling system can be built in stages
rather than as a facility-wide retrofit,
and since the new unit has not yet been
built, there is no energy reliability
concern (discussed further below).
• Air Emissions: EPA expects that
emissions are significantly less of a
concern at new units. The condensers
will be optimized for closed-cycle,
reducing energy requirements, and highefficiency cooling towers can be
incorporated into the design of the new
unit, potentially allowing for smaller
cooling towers to be installed. Turbine
backpressure and the associated energy
penalty can be substantially reduced in
a new unit, but EPA acknowledges new
units will still have auxiliary power
consumption for fans. Therefore energy
penalties and air emissions for tower
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48339
operations can be minimized (though
not eliminated). The emissions effects of
requiring closed-cycle cooling at new
units at existing facilities is similar to
the effects of this requirement at new
facilities and will not pose an
unacceptable impact. For more
information, see Chapters 6, 8, and 10
of the TDD. Further, the new unit is
likely to be more efficient and emit less
pollution than existing units, therefore
net emissions are expected to decrease
as new units replace older, less efficient
units.
• Remaining Useful Plant Life: This is
clearly not an issue for new units. A
new unit has its full useful life
remaining and thus would experience
the maximum possible reductions in
adverse environmental impacts
throughout that useful life.
EPA does not expect that the
requirements for new units at existing
facilities will be a disincentive for
facilities to repower existing units. The
requirements only apply to stand-alone
units. Requirements for entrainment at
repowered units will thus be
determined by the Director. EPA notes,
however, for facilities that do choose to
repower an existing unit, the costs of
employing a closed-cycle cooling
system are not a barrier, as described
above. In fact, some facilities may find
closed-cycle cooling to be less costly
over the long-term. For example, in
locations with limited water resources
such that once-through cooling of an
additional unit is not possible, overall
reliability will be increased by using
closed-cycle cooling systems.
EPA also recognizes that installing
closed-cycle cooling systems at new
units is a prevailing trend in industry,
regardless of the regulatory
requirements imposed by today’s final
rule. For example, see DCN 12–6672 in
the record for today’s rule, and DCNs 2–
009 and 4–4023C (from the Phase I and
Phase II dockets, respectively). These
documents show that, on the basis of
responses from facilities to the 316(b)
industry questionnaire, facilities
constructed in recent years are
significantly more likely to employ
closed-cycle cooling.
EPA recognizes that at some point in
the future, every unit will be rebuilt,
replaced or repowered (or retired). EPA
projects that approximately 227 MW in
new generating capacity per year, will
be subject to the new unit provision,
reflecting the general industry trend
towards more efficient units. EPA’s
analysis projects an equivalent number
of new units at manufacturing facilities
will be constructed each year. See the
Phase I rule for more information
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regarding the affordability and barrier to
entry analysis for new construction.
EPA notes that the new unit provision
is an important element of the final rule,
given the generally long lifespan of
equipment at industrial facilities. For
example, generating units at a power
plant are often projected to have a 50year lifespan. As a result, these facilities
have a slow rate of ‘‘evolution’’ in
adopting newer technologies. By
requiring closed-cycle cooling in new
units, EPA is ensuring (along with the
Phase I rule) that no new once-through
cooling units or facilities will be built.
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E. Option Selection
After considering all factors identified
above, EPA has concluded that it should
base the BTA impingement mortality
standard for existing units on the
performance of traveling screens (e.g.,
modified Ristroph screens and
equivalent modified traveling screens
with fish-friendly fish returns)—the
‘‘best technology available’’ for
minimizing impingement mortality.
While there are a number of
technologies that may perform as well
as or better than traveling screens, these
technologies were not feasible or
available on a nationwide basis and thus
were not the ‘‘best technology available’’
for standard setting purposes. Moreover,
the impingement mortality standard for
existing units provides a number of
alternatives, including some of these
other technologies, for compliance with
the standard. EPA based the BTA
impingement mortality standard for
existing units on the performance of
traveling screens because EPA
concluded that this technology is
effective, widely available, feasible,73
and does not lead to unacceptable nonwater quality impacts.
As explained above, EPA has not
identified a technology or combinations
of technologies that EPA concluded is
‘‘best technology available’’ for
minimizing entrainment at existing
units. EPA did not identify a technology
for reducing entrainment that is
effective, widely available, feasible, and
does not lead to unacceptable non-water
quality impacts. As such, EPA is unable
to identify a nationally applicable BTA
technology on which to base the BTA
entrainment standard.
While EPA concluded that closedcycle recirculating systems reduce
entrainment (and impingement
mortality) to the greatest extent and are
the most effective performing
73 As part of the feasibility determination, EPA
found that the costs associated with the IM
standards are reasonable for the industry as a
whole.
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technology, after careful consideration
of multiple factors, EPA concluded that
a closed-cycle recirculating system is
not the ‘‘best technology available’’ for
existing units within the meaning of the
statute. It is not the best technology
available on a national basis for
minimizing adverse environmental
impact and should not form the sole
basis for the BTA standard for
entrainment for the reasons explained
below.
EPA also determined that there were
no other ‘‘available’’ technologies for
entrainment whose performance came
close to that of closed-cycle
recirculating systems. Further, while
reduced intake velocity was a very
effective control for impingement and
may also reduce entrainment of some
life stages of fish and shellfish, it does
not significantly reduce entrainment of
eggs and non-motile stages of larvae,
and it is not physically available in
many locations.
EPA has broad discretion in what
factors it should consider when it
determines the best technology available
for minimizing the adverse
environmental impacts of cooling water
intake structures. As both the U.S.
Supreme Court and the Second Circuit
Court of Appeals have underscored,
section 316(b) is ‘‘sui generis,’’ in a class
by itself, unencumbered by ‘‘specified
statutory factors,’’ Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 222
(2009); Riverkeeper, Inc. v. EPA, 358 F,
3d 174,187 (2d Cir. 2004). The Second
Circuit explicitly rejected the argument
that, because section 316(b) does not
mention costs or other factors, EPA
cannot give costs or other factors ‘‘any’’
weight in deciding what is the best
technology. Riverkeeper, Inc., 358 F.3d
at 195. Furthermore, the Second Circuit
recognized that EPA may base its
decision on factors other than the
effectiveness of a given technology in
reducing impingement and entrainment
and that EPA is entitled to deference in
deciding what weight to give to the
factors it considers in its BTA
determination. Riverkeeper, Inc., 358
F.3d at 196.
As noted, costs are one factor EPA
may consider in its BTA determination.
Here, while EPA did consider costs,
costs were not a dispositive factor in the
decision to reject closed-cycle cooling as
the basis for a uniform national BTA
entrainment standard. EPA did not
reject closed-cycle cooling here either
because it was not economically
achievable or because the costs of
closed-cycle would exceed its benefits.
Instead, EPA rejected closed-cycle
cooling as the technology basis for a
uniform national BTA entrainment
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standard based on three factors: Land
availability, air emissions, and
remaining useful plant life as explained
below.
Central to EPA’s evaluation of the
availability of closed-cycle as BTA was
EPA’s new understanding of the
limitations of technologies other than
closed-cycle in reducing entrainment.
This presented EPA with a sharper
choice than it had in the Phase II rule.
For today’s rulemaking, EPA took a
second look at the data it had relied on
in the Phase II rule, particularly in light
of new data received since the Phase II
rule. As a result, EPA learned that
entrainment exclusion does not
necessarily equate to entrainment
survival (76 FR 22185), a key
underpinning to EPA’s BTA standards
for entrainment in the remanded Phase
II rule.
For the remanded Phase II rule, EPA
had established national BTA
performance standards for entrainment
(and impingement) and included a
number of different alternative means to
achieve the standards. First, if a facility
demonstrated that it could achieve
reductions in flow associated with
closed-cycle cooling, the facility met the
BTA performance standards.
Alternatively, a facility could
demonstrate that it met the entrainment
performance standards by a
combination of installed technology and
operational or other measures
(including restoration measures). See 69
FR 41590 for a description of the final
Phase II rule. Critical to EPA’s decision
to provide an array of choices for
achieving the national BTA entrainment
performance standards was a key factual
conclusion. That conclusion was that a
number of technologies would achieve
performance reducing entrainment that
was ‘‘comparable’’ to that of closedcycle cooling. Consequently, for the
Phase II rule, EPA established an
entrainment performance standard of 60
to 90 percent based on data it reviewed
for the Phase II rulemaking. See 69 FR
41598 for information on EPA’s
rationale for establishing compliance
alternatives as part of the final rule.
In the Phase II rule, while EPA looked
to the performance of closed-cycle as
the benchmark against which it
evaluated technologies for the BTA
standards, EPA did not mandate the
achievement of flow reductions that
were in all cases equivalent to closedcycle. Given that the available data
supported the view that there were
other much less expensive technologies
that obtained significant reductions in
entrainment, EPA was comfortable with
a BTA standard that required
achievement of a level of performance
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that was generally comparable though
not equivalent to closed-cycle.
Since the Phase II rulemaking, EPA
has received new data and learned that
its understanding of entrainment
technology performance was
incomplete. Following the remand of
the Phase II rule, EPA reexamined the
data as well as new information on the
performance of various entrainment
control technologies it had previously
reviewed. As a result, EPA determined
that its conclusion regarding the
capability of these other technologies—
a conclusion on which the Agency had
based the Phase II BTA performance
standards—was no longer supported by
the data EPA had before it.
There is a second additional
consideration that further required EPA
to focus renewed attention on how
widely available closed-cycle cooling in
fact was nationally. The Second Circuit
decision in the Phase II rule removed
restoration as a compliance option that
EPA could consider. The decision
underscored that restoration measures—
one compliance option included in the
Phase II rule—were not an available tool
for complying with any 316(b) standard.
However, at the time of the Phase II
promulgation, EPA expected some
facilities would use restoration in lieu of
closed-cycle cooling, thus making
closed-cycle or reductions
commensurate with closed-cycle
feasible (76 FR 41609). With the court
decisions that restoration was not an
available tool for compliance,
compliance with a standard based on
closed-cycle cooling alone is less
feasible than EPA had expected at the
time of the Phase II promulgation.
The changed landscape has narrowed
markedly EPA’s range of options with
respect to the technology basis for
today’s BTA standards. The gap
between the performance of the most
effective entrainment reduction
technologies (closed-cycle) and other
less expensive technologies has
widened significantly. EPA’s narrowed
range of compliance technology choices
required EPA to look even more closely
at the feasibility of closed-cycle cooling
and reduced flow. As the Second Circuit
has noted, EPA is clearly entitled to
make its choice among alternative BTA
technologies based on more factors
other than just a technology’s
effectiveness in reducing impingement
and entrainment. Riverkeeper, Inc., 358
F.3d at 196. EPA identified three factors
as significant in its decision to reject
closed-cycle cooling as the sole
technology basis for a national BTA
entrainment standard. The three factors
that collectively support rejecting
closed-cycle cooling systems as a
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uniformly applicable BTA for existing
facilities (except new units) are land
availability, increased air emissions and
remaining useful life.
1. Land Availability and Geographical
Constraints Could Be a Factor on a Local
Basis
While EPA’s record indicated that the
majority of facilities have adequate
available land to retrofit to closed-cycle
cooling, some facilities have land
constraints.74 While EPA originally
estimated as many as 23 percent of
facilities would not have enough
space,75 it observed on site visits that
some facilities with a small parcel of
land could still install closed-cycle
cooling by using creative engineering
solutions. On the other hand, EPA
found that some facilities with large
acreage could not feasibly install
cooling towers because of local zoning
or other local concerns. Thus, existing
physical space at the facility was not the
only factor contributing to uncertainty
about land availability. Further review
has shown that setback distances to
mitigate noise and plume abatement
(based on GPS mapping of residential
areas) act as an additional constraint on
land available for retrofitting to closedcycle, and the cost of acquiring new
land may be prohibitive for some
facilities. Consequently, EPA estimates
that 25 percent or more of facilities
might have one or more constraints on
land availability that would limit the
ability to retrofit for cooling towers for
the entire facility. EPA lacks adequate
support to indicate that land constraints
can be accommodated at existing
facilities.
EPA also attempted to determine
criteria based on the data in its record
that would enable it to define a
threshold for determining land
availability on a nationwide basis, but
was unsuccessful. For example, one
analysis explored a threshold of
approximately 160 acres per GW
(gigawatt) below which a facility could
not feasibly install cooling towers.
Based on acres and the footprint of the
facility and its surroundings (primarily
those sites for which EPA conducted
site visits), EPA found such an approach
did not accurately identify which
74 For example, in the case of fossil fuel facilities,
scrubber controls may already have been required
to comply with air rules and standards. This may
reduce available land for closed-cycle.
75 EPRI reported at least 6 percent of sites it
evaluated were deemed ‘‘infeasible’’ because no
space was available on which to locate a cooling
tower. (DCN 10–6951) While EPA does not have
access to the facility level data, EPRI’s report
supports EPA’s conclusion that there is significant
uncertainty around space constraints for facilities to
install closed-cycle cooling.
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facilities could feasibly install closedcycle.
2. Increased Air Emissions Could Be a
Factor on a Local Basis
As previously discussed, retrofitting
closed-cycle cooling (without also
repowering) would result in increased
air emissions of various pollutants,
including particulates, sulfur dioxide,
nitrogen oxides, mercury, and
greenhouse gases, among others.76 As a
result of installing closed-cycle cooling
structures, fossil-fueled facilities would
need to burn additional fuel, thereby
emitting additional PM, CO2, SO2, NOX,
and Hg. Two factors are responsible: (1)
The need to compensate for energy
required for operating cooling towers,
and (2) slightly lower generating
efficiency attributed to higher turbine
backpressure when the condenser is not
replaced with one optimized for closedcycle operation when retrofitting
existing units (also referred to as the
energy penalty). While both of these
factors contribute to increased air
emissions, the larger contributor to
projected increased air emissions is by
far the energy penalty.
The impact of the increased emissions
varies according to the local
circumstances. The increased emissions
could consist of stack emissions from
increased fuel usage, cooling tower
emissions, and plumes of water vapor.
EPA’s analysis suggested that the most
significant impacts would be increased
PM2.5 emissions, which are associated
directly with an increase in human
health effects. EPA notes that cooling
plume abatement and drift elimination
technologies exist to address cooling
tower emissions (and EPA included
costs for such technologies in its
analysis of Proposal Options 2 and 3).
Further, EPA expects most effects of the
particulates from cooling tower
emissions would be limited to the
immediate vicinity, confined wholly to
the facility property. (See DCN 10–
6954.) Therefore, EPA’s primary
concern is increased air emissions
associated with additional fuel usage
due to the energy penalty when
retrofitting to cooling towers. EPA’s
review of emissions data from E–GRID
(year 2005) suggests that impacts from
these pollutant discharges could be
significant. These include the human
health and welfare and global climate
change effects—all associated with a
76 EPA recognizes that retrofitting closed-cycle
cooling could be combined with other energy
efficiency or pollution control technologies with the
net effect of reducing air emissions; however,
facilities could (and may be required to under other
rules) install such technologies anyway, without
converting to closed-cycle cooling.
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variety of pollutants that are emitted
from fossil fuel combustion. EPA is not
able to quantify the frequency with
which facilities could experience these
local impacts, and therefore has
concluded that the proper forum to
address such local impacts fully is in a
site-specific setting.
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3. Remaining Useful Plant Life Could Be
a Factor on a Facility Basis
A number of facilities are nearing the
end of their useful life. Considering the
long lead time to plan, design, and
construct closed-cycle cooling systems,
EPA determined that the Director
should have the latitude to consider the
remaining useful plant life in
establishing entrainment mortality
requirements for a facility. The
remaining useful plant life, along with
other site-specific information, will
affect the entrainment reduction of
closed-cycle cooling at a facility. For
example, retrofitting to a closed-cycle
system at a facility that is scheduled to
close in three years will result in little
entrainment reduction as compared to
retrofitting to closed-cycle at a facility
that will continue to operate for a
significantly longer period.
The Decision To Establish a National
BTA Standard Requiring Site-Specific
Determination of BTA Entrainment
Controls
Once EPA determined that a ‘‘onesize-fits-all’’ approach for entrainment
for existing units is not generally
feasible, it is appropriate to assess the
required controls on a site-specific
basis. Therefore, for existing units, EPA
decided to adopt as the BTA
entrainment standard an overarching
regulatory framework under which the
Director will establish BTA entrainment
requirements on a site-specific basis
following prescribed procedures and
applying specified factors for decisionmaking prescribed in the regulation and
as described below.
EPA concluded that site-specific
proceedings are the appropriate forum
for weighing all relevant considerations
in establishing BTA entrainment
requirements. Closed-cycle cooling is
indisputably the most effective
technology at reducing entrainment.
Closed-cycle reduces flows by 95
percent and entrainment is similarly
highly reduced. But given that EPA
estimates that 25 percent of existing
facilities may face some geographical
constraints on retrofitting closed-cycle
cooling and concerns about air
emissions and the remaining useful life
of a facility, EPA rejected the option of
requiring uniform entrainment controls
based on closed-cycle cooling. Instead,
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EPA elected to adopt as the entrainment
standard a more flexible process in
which, following consideration of a host
of factors, the Director will prescribe
316(b) entrainment conditions
appropriate at a particular site. For
additional discussion on how a sitespecific consideration of entrainment
control requirements will be
implemented, see Section VIII below.
EPA has several reasons for adopting
the framework approach as the BTA
standard for entrainment. As explained,
the record shows that though closedcycle cooling is effective, it is neither
widely available nor feasible, and has
significant unacceptable non-water
quality impacts. While EPA cannot
identify with precision the extent of
these limitations on installing closedcycle cooling systems nationwide, the
record indicates that the circumstances
are neither isolated nor insignificant. In
light of this, EPA decided not to
establish closed-cycle cooling as a
presumptive BTA entrainment standard,
pending a site-specific demonstration of
the limitations. Instead, entrainment
control requirements will be determined
in a site-specific setting where the
opportunity for local input in decisionmaking process will be maximized.
With regard to new units at existing
facilities, based on the performance of
properly operated cooling tower
operation and the availability, feasibility
and affordability of closed-cycle cooling
at new units, EPA selected closed-cycle
recirculating systems based on wet
cooling towers as BTA. For a discussion
of how the three factors (availability,
feasibility and affordability) relate to
new units, see Section VI.D.3.
Consistent with the Phase I rule for new
facilities, EPA has also included a
compliance alternative allowing a
facility to show performance
comparable to that of a closed-cycle
recirculating system. The new unit
provisions in today’s final rule are
essentially the same as the requirements
for new facilities under the Phase I rule.
F. Other Options Considered for Today’s
Final Regulation
EPA considered several other options
for the BTA standards in developing
today’s rule, but ultimately rejected
them. This section includes a discussion
of these options, as well as some
technologies that EPA considered, but
did not include as compliance
alternatives to the impingement
mortality standards.
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1. Proposal Option 4—Flexible
Impingement Mortality Controls Similar
to Final Rule at Existing Facilities With
DIF of 50 mgd or More; BPJ Permits for
Impingement Mortality and Entrainment
at Existing Facilities With Design Intake
Flow Between 2 mgd and 50 mgd; SiteSpecific Entrainment Standard for
Existing Facilities With DIF of 50 mgd
or More; and Uniform Impingement
Mortality and Entrainment Controls for
All New Units at Existing Facilities
Similar to Final Rule
At proposal, EPA’s preferred option
was Option 1, which was the option
closest to today’s final rule, and the
starting point for the description of the
changes to the rule in Section V above.
At proposal, EPA also considered a
variant of Option 1, called Option 4,
which changed the impingement
mortality requirements for facilities
under 50 mgd from the performance
standard in Option 1 to BTA as
determined by best professional
judgment. In the case of an existing
facility below 50 mgd that added a new
unit, the flow associated with the new
unit would have been subject to the
uniform entrainment requirements
based on closed-cycle cooling. Finally,
all existing facilities withdrawing more
than 2 mgd of DIF would have been
subject to entrainment requirements
established on a site-specific basis, with
the exception noted above for new
units. The option analyzed here, called
Proposal Option 4, is likewise similar to
the final rule, but for the impingement
standard based on BPJ for facilities
between 2 and 50 mgd.
EPA ultimately rejected Proposal
Option 4 because EPA found that the
technologies on which the impingement
mortality performance standard of
today’s final rule is based are available,
feasible, demonstrated, and affordable
for all regulated facilities on a national
basis. Moreover, EPA’s analysis showed
that the difference in the total costs for
the two options was nominal.
Additionally, EPA notes that many
facilities with a DIF under 50 mgd
already use closed-cycle cooling and
would have minimal burden under the
final rule. These facilities would have
no difficulty complying with the
requirements EPA is establishing in
today’s final rule. Proposal Option 4, by
not distinguishing between those
facilities under 50 mgd that have
already minimized adverse
environmental impacts from those that
have not, masks the actions that would
have to be taken by the latter group to
comply with today’s final rule. In
addition, the flexibilities introduced in
the June 11, 2012 NODA and included
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in today’s final rule applied to all
facilities, rather than taking the Option
4 approach at proposal of providing for
more Director discretion for only the
smaller withdrawing facilities. EPA also
concluded that the data collection
activities required under the final rule
will be more protective of threatened
and endangered species because they
provide information on a larger number
of facilities than Proposal Option 4 for
consideration by the Director in
permitting decisions. Lastly, EPA
acknowledges that Proposal Option 4 is
more burdensome to permitting
authorities than is the final rule, as it
requires more case-by-case decision
making.
2. Proposal Option 2—Flexible
Impingement Mortality Controls Similar
to Final Rule at All Existing Facilities
That Withdraw Over 2 mgd DIF; SiteSpecific Entrainment Standard for
Existing Facilities With DIF at or Below
125 mgd; Require Flow Reduction
Commensurate With Closed-Cycle
Cooling by Facilities Greater Than 125
mgd DIF; and Uniform Impingement
Mortality and Entrainment Controls for
All New Units at Existing Facilities
As previously explained, EPA
assessed a number of different
technologies that reduce impingement
mortality and entrainment as the
possible basis for section 316(b)
requirements. EPA concluded that
closed-cycle recirculating systems
(based on wet cooling towers) are the
most effective technology for reducing
impingement mortality and
entrainment. Notwithstanding that
conclusion, EPA has decided not to
establish a performance standard for
impingement and entrainment based on
closed-cycle recirculating systems for
existing facilities. Furthermore, EPA
found that there are no other effective
technologies for entrainment that are
available nationally. As described
previously, each of the three factors for
rejecting closed-cycle cooling as BTA
for entrainment would also apply in the
case of Proposal Option 2, despite the
smaller number of facilities that would
be subject to a requirement to retrofit.
The technology basis for entrainment
mortality controls for facilities greater
than 125 mgd DIF under this option
would have been wet cooling systems.
The constraints discussed above that are
associated with retrofitting a large
portion of the universe of affected
facilities, led EPA to conclude that
requiring closed-cycle cooling on a
uniform basis scale was not appropriate
for a national regulation.
EPA notes that it proposed multiple
options that included closed-cycle, and
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solicited comment on all aspects of
closed-cycle cooling. After fully
considering all comments and data, EPA
still finds closed-cycle cooling is not the
‘‘best technology available for
minimizing adverse environmental
impact’’ required by section 316(b).
Because of a combination of concerns
over feasibility/availability, air
emissions, and remaining useful life of
the facility, EPA has rejected closedcycle recirculating systems as the basis
for national impingement and/or
entrainment controls. Nor is EPA able to
identify a subcategory for which these
concerns no longer apply. Moreover, the
complex interaction of all of these
factors at individual sites does not lend
itself to other regulatory options that
would require closed-cycle recirculating
systems with an ‘‘off ramp’’ if any of the
factors were shown to result in
unacceptable impacts because this
would create a presumption for closedcycle cooling rather than an equal
balancing of all relevant factors. EPA
decided not to establish any
presumptive BTA entrainment outcome.
EPA finds the entrainment standards
framework in today’s final rule will
provide a consistent, more efficient, and
more effective approach than standards
with an ‘‘off ramp.’’
3. Proposal Option 3—Flexible
Impingement Mortality Controls at All
Existing Facilities That Withdraw Over
2 mgd DIF; Require Flow Reduction
Commensurate With Closed-Cycle
Cooling at All Existing Facilities Over 2
mgd DIF
Proposal Option 3 was, in many ways,
the same as requiring closed-cycle
cooling at all existing facilities. As
described above, each of the three
factors for rejecting closed-cycle cooling
as BTA for entrainment would apply
with equal force for Proposal Option 3.
As a result, EPA has concluded Proposal
Option 3, similarly, is not appropriate as
BTA for entrainment.
4. Proposal Option 4 Variant
EPA also considered a variant of
Proposal Option 4. As compared to
Proposal Option 4, this variant did not
include flexible alternatives for
complying with the BTA impingement
mortality standards (including preapproved and streamlined alternatives),
but did adopt the 50 mgd threshold to
determine those facilities for which the
Director has more discretion in
determining BTA via BPJ. EPA analyzed
this option to directly compare the
effects of introducing flexible IM
compliance alternatives at all facilities
(as the final rule does) to the effects of
introducing greater Director discretion
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48343
for a subset of facilities, via BPJ
permitting (as the Proposal Option 4
variant does). The preferred option at
proposal, Option 1, was estimated to be
more costly than Option 4 (Option 1
was estimated to cost $384 annually as
compared with $327 million annually
for Option 4). Under the analysis
supporting the final rule the EPA is
adopting today, however, today’s final
rule is estimated to cost $275 million
annually in comparison with an
estimated cost of $284 million annually
for the Proposal Option 4 variant. Thus,
EPA has concluded that providing
flexible alternatives for compliance with
the BTA IM standard at all facilities is
both more effective at reducing costs to
society and more readily justified as
best technology available as compared
to the approach of introducing greater
Director discretion for only a subset of
facilities (below 50 mgd). Hence, EPA
rejected the Proposal Option 4 variant,
and the approach of introducing greater
Director discretion for only a subset of
facilities (below 50 mgd).
5. Proposal Option 2 Variant
EPA also considered a variation of
Proposal Option 2 that would have used
125 mgd AIF rather than 125 mgd DIF
as the threshold. However, as described
above, EPA rejected Proposal Option 2
and, for the same reasons, rejected this
variant of Option 2.
6. Site-Specific Approach To
Addressing Impingement
Many commenters (primarily from
manufacturing facilities) commented
that EPA should adopt a site-specific
approach to addressing impingement
mortality, similar to that employed for
entrainment. As a result, EPA also
considered an approach that would
have established both impingement
mortality and entrainment requirements
fully on a site-specific basis taking into
account for the particular facility,
among other factors, those previously
described as pertinent to EPA’s 316(b)
BTA determination. EPA rejected a fully
site-specific approach for impingement
controls principally because low-cost
technologies for impingement mortality
are available, feasible, demonstrated,
and affordable for facilities nationally.
Because technologies are available, a
fully site-specific approach would place
an unnecessary additional burden on
state permitting resources. Moreover,
the final impingement mortality
standard includes several alternatives
that allow site-specific demonstration
that a particular technology performs at
a level representing the best technology
available for the site. EPA is instead
promulgating a modified version of the
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proposed rule, adding several elements
of flexibility (i.e., compliance
alternatives), and thus directly
addressing many of the concerns raised
by these commenters.
7. Pre-Approved Technologies
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Many commenters requested that EPA
pre-approve technologies that, once
installed, would obviate the need for
further regulatory conditions such as
periodic monitoring. This is similar to
the approach taken for cylindrical
wedgewire screens in the remanded
2004 Phase II rule (see 69 FR 41693).
EPA has adopted, in significant
measure, commenters’ suggestion in the
BTA impingement mortality standard in
today’s rule by including several preapproved and several streamlined
compliance alternatives in the form of
technologies that may be approved
following a demonstration of required
performance, so long as the facility
shows that its alternative technology is
operating in a manner that minimizes
adverse environmental impacts. As an
option for achieving the impingement
mortality standards, a facility may
install and operate specified
impingement controls whose
performance is comparable to or better
than the technology EPA concluded was
the ‘‘best technology available’’ for
impingement mortality reductions:
• Closed-cycle recirculating systems,
defined at § 125.92(c)
• Existing offshore velocity caps,
defined at § 125.92(v)
• Technologies that result in a design
intake velocity less than or equal to
0.5 fps, including most modern
cylindrical wedgewire screens
Although this rule leaves the BTA
entrainment determination to the
Director, with the possible BTA
decisions ranging from no additional
controls to closed-cycle recirculating
systems plus additional controls as
warranted, EPA expects that the
Director, in the site-specific permitting
proceeding, will determine that
facilities with properly operated closedcycle recirculating systems do not
require additional entrainment
reduction control measures. Refer to
Section E.1 for the EPA’s rationale for
selecting these controls.
G. Final Rule BTA Performance
Standards
The rule establishes the following
BTA standards for Impingement
Mortality and Entrainment:
Impingement Mortality Standards at All
Existing Units at Existing Facilities that
withdraw greater than 2 mgd DIF; an
Entrainment Standard that requires site-
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specific entrainment controls
determined by the Director for Existing
Units at Existing Facilities that
withdraw over 2 mgd DIF; BTA
standards for impingement mortality
and entrainment for new units at
existing facilities. The previous section
described the other options that EPA
considered but ultimately rejected, and
the basis for those decisions.
1. Impingement Mortality Controls for
Existing Units at Existing Facilities for
the Final Rule
Today’s final rule provides a facility
a number of alternatives for complying
with the BTA impingement mortality
standard. As discussed more below,
EPA’s BTA impingement mortality
standard is based on EPA’s conclusion
that, on a national basis, modified
traveling screens with fish-friendly
return systems are the best performing
technology available for impingement
mortality reduction. But EPA is not
requiring compliance with the BTA
impingement mortality standards only
through monitoring data that
demonstrates achievement of the
numeric reduction in mortality levels
that EPA has determined well-operated
modified traveling screen will achieve.
Rather, the final rule allows facilities to
comply by employing any of seven
alternatives, including monitored
compliance with a numeric
impingement mortality performance
standard.
Based on its review of available data
and information submitted by
commenters, EPA identified a number
of other technologies and operational
measures that could achieve equivalent,
or better, performance to the
impingement mortality reductions
achieved with modified traveling
screens that may be available for some
sites. Thus, the final rule provides seven
alternatives for complying with the BTA
impingement mortality standards. These
include three compliance paths based
on pre-approved technologies, and three
compliance paths that offer a
streamlined approach to compliance.
EPA expects the majority of facilities
will use one of these six options to
comply with the BTA impingement
mortality standards (see Exhibit VIII–1
for more information).
The following pre-approved
technologies will comply with today’s
rule and are associated with minimal
monitoring and reporting of operational
and/or design parameters. These
technologies are (the numbering reflects
the numbering in § 125.94(c)): Operating
(1) a closed-cycle recirculating system;
(2) a cooling water intake structure that
EPA or the State NPDES permitting
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authority determines has a design
maximum through-screen intake
velocity of 0.5 feet per second; or (4) an
existing offshore velocity cap. The
general intent behind a compliance path
based on a pre-approved technology is
to provide a level of certainty to the
regulated entity that they would be
deemed compliant with the relevant
rule requirements by designing,
installing, and operating the technology
as specified in the regulation. The three
pre-approved compliance alternatives
are each based on a particular
technology approach. The permit for
each compliance alternative will
necessarily include criteria, design
standards, and operational conditions
specific to the pre-approved technology.
The compliance paths based on preapproved technologies in today’s final
rule include simplified permit
application requirements (such as
reduced or minimal study),
documentation, or reduced monitoring,
and will therefore result in greatly
simplified implementation. In today’s
final rule, there are no biological
compliance monitoring requirements for
any of the three compliance paths based
on pre-approved technologies.
Under the streamlined alternatives, a
facility must demonstrate to the Director
that traveling screens or some
combination of technology controls or
operational measures represent BTA
performance under the conditions at the
site. The three streamlined compliance
alternatives are (the numbering reflects
the numbering in § 125.94(c)) operating
(3) a cooling water intake structure that
EPA or the State NPDES permitting
authority determines has an actual
maximum through-screen intake
velocity of 0.5 feet per second; (5)
modified traveling screens whose
demonstrated performance represents
the best technology available for
impingement reduction at the site; or (6)
a system or combination of technologies
or operational measures whose
demonstrated performance is the best
technology available for impingement
reduction at the site. In order to
demonstrate BTA performance, a facility
will need to conduct a two-year sitespecific study at the same time it
conducts its source water
characterization and Entrainment
Characterization Study. This study must
demonstrate that its modified traveling
screens, or combination of technology
controls and operational measures, have
been adjusted and optimized so as to
minimize impingement mortality. If the
Director concludes that the facility has
demonstrated optimized performance
for its controls, the facility will have no
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subsequent biological monitoring and
reporting requirements as compared to a
facility that complies using the
impingement mortality performance
standard. If the screens or other
measures are not already installed, the
Director may approve postponing the
two-year study to be conducted after the
entrainment determination has been
made. These three streamlined
compliance alternatives are based on a
technology or suite of technologies and
practices with more variable
performance, and as such necessitate
some degree of study, in order to
optimize technology performance for
the site-specific conditions encountered
by a facility. A streamlined compliance
alternative may require some level of
monitoring, but once the optimal
performance of the technology has been
identified, conditions included in the
permit specifying optimal operation
ensure that the streamlined alternative
is similar to or better than the
impingement mortality performance
standard. For example, the streamlined
compliance alternatives also do not
require biological compliance
monitoring.
The seventh alternative (at
§ 125.94(c)(7)) for complying with the
BTA impingement mortality standards
requires the owner or operator to
demonstrate compliance with the
numeric impingement mortality
performance standard through
biological monitoring. Under this
alternative, the owner or operator has
the flexibility to choose any technology,
including a new or innovative
technology, provided the compliance
monitoring demonstrates the
performance standard is achieved.
Each of these seven alternatives is
further described below. In addition,
further discussion of how each of these
alternatives will be implemented may
be found in Section VIII.
a. Closed-Cycle Recirculating Systems
As described above, in Chapter 6 of
the TDD, and in prior rulemakings, EPA
has long recognized the benefits of flow
reduction from closed-cycle
recirculating systems for reducing
impingement (as well as entrainment).
A facility employing a closed-cycle
recirculating system will typically
reduce impingement by more than 95
percent. As a result, a facility may
choose to comply with the BTA
impingement mortality standards in
today’s final rule by demonstrating that
it uses a properly operated and
maintained closed-cycle recirculating
system.
EPA estimates that approximately 18
percent of intake structures (i.e., those
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that already have an existing closedcycle recirculating system, plus
facilities located in California and New
York, whose State regulations are at
least as stringent as the final rule) will
choose this alternative.
EPA does not have the data to
determine precisely which
impoundments are serving as part of a
closed-cycle recirculating system as
defined at 40 CFR 125.92(c)(2).
However, EPA is aware that some
facilities have created their
impoundments in a water of the U.S. as
part of their cooling system. EPA does
not intend to eliminate the use of such
lawfully created impoundments for
their intended purpose, as doing so
could result in a large number of
stranded assets. If the cooling system
with the impoundment minimizes the
withdrawal of make-up water for
cooling purposes, the Director may
determine the cooling system meets the
definition of a closed-cycle recirculating
system.
b. Reduced Intake Velocity
EPA has long recognized the
relationship between impingement and
intake velocity. EPA conducted an
analysis of fish swim speeds in the
Phase I rule (see 66 FR 65274, December
18, 2001) and concluded that a design
through-screen velocity of 0.5 fps is
protective of 96 percent of motile
organisms. However, EPA did not select
intake velocity as the technology basis
for the BTA impingement mortality
standards. Although the performance of
0.5 fps intake velocity achieves greater
reduction in impingement mortality
than the technology on which the BTA
impingement mortality standards are
based, reducing a facility’s intake
velocity is not widely available or
feasible for all existing facilities (see
Chapter 6 of the TDD).
EPA is including reductions in intake
velocity as an alternative for complying
with the BTA impingement mortality
standards through reduced intake
velocity. A facility choosing this
alternative must demonstrate that (1) the
through-screen design velocity could
not exceed 0.5 fps or (2) the actual
intake velocity does not exceed 0.5 fps.
EPA estimates that approximately 34
percent of intake structures will choose
this alternative. This estimate includes
facilities that have an existing intake
velocity of 0.5 fps or less, plus those
facilities that are projected to install a
technology that would reduce their
intake velocity (larger intake, wedgewire
screens, or variable speed pumps).
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i. Design Intake Flow Basis
Consistent with EPA’s determination
in its earlier 316(b) regulatory efforts,
the final rule allows a facility to comply
with the BTA impingement mortality
standards by demonstrating that its
intake has a maximum through-screen
design velocity of 0.5 fps. EPA
concluded that facility’s operating at
this through-screen design velocity will
protect the vast majority of impingeable
aquatic organisms. Facilities choosing to
comply with the BTA impingement
mortality standards may not average
velocity across multiple intakes at a
facility.
ii. Actual Intake Flow Basis
EPA is also adopting a provision to
allow facilities to demonstrate that the
through-screen intake velocity at an
intake structure does not exceed 0.5 fps
on the basis of the intake’s actual flow.
(Again, note that facilities choosing this
compliance alternative may not average
intake velocity across multiple intakes.)
In contrast to design flow above, a
facility with an intake having a design
through-screen intake velocity greater
than 0.5 fps may be operated at a
reduced capacity and therefore may
withdraw cooling water at a velocity
less than 0.5 fps. As long as the actual
intake flow is such that the velocity
remains at or below 0.5 fps, the
reductions in impingement (and
subsequently, impingement mortality)
remain the same as a facility with a
maximum design through-screen intake
velocity of 0.5 fps. As described below,
a facility will be required to monitor its
intake flow and report this data to the
Director to verify that intake flows do
not exceed 0.5 fps. This approach also
permits the Director to allow brief
periods where the intake velocity will
exceed 0.5 fps under extreme
conditions.
c. Existing Offshore Velocity Caps
A number of commenters stated that
EPA should consider existing offshore
intakes fitted with velocity caps to be
pre-approved and complying with the
BTA impingement mortality standards.
Locating submerged intakes in the
deeper regions of larger waterbodies
(particularly outside the littoral zone 77)
has the potential to reduce both
impingement and entrainment (I&E),
due to the lower densities of aquatic
organisms as compared to a shorelinebased intake. EPA has identified 11
facilities with offshore velocity caps,
and reviewed a number of studies
documenting the performance of these
77 The littoral zone extends from the shoreline to
roughly the edge of the continental shelf.
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facilities. These studies show that the
impingement reduction performance of
intakes submerged far offshore with
velocity caps is dependent on sitespecific conditions. The data show that
solely locating an intake far offshore
(i.e., without also employing a velocity
cap) achieves a 60 to 73 percent
reduction in impingement, and
therefore does not achieve impingement
mortality reduction comparable to that
of well-operated modified traveling
screens. Similarly, the data also show
that velocity caps alone achieve a 50 to
97 percent reduction in impingement,
and therefore could result in
compliance performance comparable to
or better than modified traveling screens
in some, but not in all cases. However,
the combination of an existing intake
located far offshore (i.e., approximately
850 feet, as identified in the data for
Nine Mile Unit 1 and Oswego Unit 5) in
combination with use of a velocity cap
will result in performance that exceeds
the 12-month average impingement
mortality performance standard
(alternative seven described above).78 79
Because there is some amount of
uncertainty in measuring distances from
a shoreline, including but not limited to
due to variations in water levels, storm
swells, or tidal excursions, EPA has set
the minimum distance offshore at 800
feet. As a result, the final rule at
§ 122.95(c)(4) allows a facility to comply
with the BTA impingement mortality
standards with an existing offshore
intake with an existing velocity cap
located at least 800 feet offshore, based
on the performance data from the 11
identified facilities.
As noted above, the record shows all
existing facilities with a velocity cap
located at least 800 feet offshore will
meet or exceed the 12-month average
mortality performance standard of
§ 125.94(c)(7). EPA does not have data
showing velocity caps located at lesser
distances offshore will consistently
achieve the impingement mortality
performance standards, but is aware that
some facilities may be able to achieve
the impingement mortality standards
through a combination of technologies
that includes an offshore location. For
example, the Office of Naval Research
states that the littoral zone in ocean
environments generally extends from
78 An existing facility may also choose to install
a new offshore intake with a velocity cap, but such
a facility would not automatically qualify as
meeting the impingement requirements for the final
rule. Such a facility would need to demonstrate
equivalent performance to the impingement
mortality performance standard.
79 A velocity cap must also include bar racks or
other devices to exclude large marine organisms
(e.g., seals, turtles) from entering the intake
structure.
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the shore to 600 ft out in the water (ONR
2013). SEAMAP data in EPA’s record
shows installing the intake to depths
where there is a lower concentration of
living organisms (i.e., at least 65 feet) is
also expected to decrease environmental
impacts associated with intake
operations. Therefore, the final rule
allows facilities with intake structures at
significant distances offshore to
demonstrate the performance of their
technology under § 122.95(c)(6), as
further discussed below.
In addition facilities may opt to
construct an offshore velocity cap at
new locations. In those circumstances,
the facility will need to demonstrate
that theperformance of its velocity caps
is the best technology available for
impingement reduction under the
alternative found at § 122.95(c)(6). For
more information, see DCN 12–6601.
EPA estimates that approximately 1
percent of intake structures (i.e., those
with an existing velocity cap meeting
the definition at § 125.92(v) will choose
this alternative.
d. Install Modified Traveling Screens
In the June 11, 2012 NODA, EPA
discussed a streamlined compliance
option that would provide facilities
with a less burdensome alternative than
the proposed rule. In the final rule, EPA
has included an option at § 125.95(c)(5)
for facilities that install traveling
screens—the technology that forms the
basis for the numeric IM performance
standards. Under this option, the facility
must demonstrate to the Director that it
will install and operate modified
traveling screens as defined at
§ 125.92(s) that are or will be optimized
to minimize IM mortality at the site. The
facility will also be required to submit
an impingement technology
performance optimization study
(§ 122.21(r)(6)) which will include a 2year optimization study for the intake
technology. The facility will conduct 2
years of monthly impingement data
collection, during which the facility will
seek to optimize the technology
performance to minimize impingement
mortality. This study is intended to
determine the optimal configuration and
operating conditions of modified
traveling screens and the fish handling
and return systems for that intake to be
consistently protective of aquatic
organisms. During the course of the
study, EPA expects that a facility will
evaluate the interim results and make
changes to the technology or operating
conditions as needed to identify the
most appropriate set of operational
characteristics to ensure long-term
success. For example, a facility could
adjust the spray wash pressure, adjust
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the rotating speed of the screens, rotate
the screens more frequently, re-angle the
fish sluicing sprays, ensure adequate
water in the return flume, design the
fish return to avoid avian and animal
predation on the aquatic organisms, and
locate the fish return in such a way to
avoid predation. Once a facility has
optimized its technology performance,
the study will identify operational
measures that will serve as observable
and enforceable permit conditions. As
evidenced by the data used in
determining the performance standard,
by requiring facilities to study the
conditions for optimized performance,
many facilities will achieve
impingement mortality reductions much
greater than the 12-month average
impingement mortality performance
standard without significant additional
investment. Biological data collection
beyond this two-year study will not be
required. The facility will simply be
required to ensure that it is operating its
technology under the identified
conditions for optimized performance. If
the Director concludes that the screens
will achieve optimized performance, the
Director will also incorporate operating
conditions to ensure optimized
performance as terms of the facility’s
NPDES permit.
As discussed in the NODA and
Chapter 4 of TDD, EPA’s data indicate
that most facilities employ traveling
screens.80 EPA anticipates that, as a
result, many facilities will view the
streamlined screen-based compliance
route as a logical choice for complying
with the final rule. The streamlined
option provides an opportunity for a
large number of the affected facilities
(i.e., those that do not meet the criteria
for the other compliance technologies)
to demonstrate that their intakes are
effectively reducing impingement
mortality while significantly reducing
the burden on both facilities and
regulatory agencies. EPA estimates that
approximately 30 percent of intake
structures will choose this alternative.81
EPA is aware that some facilities have
no technologies installed and will
choose to install modified traveling
screens, and further that some facilities
80 EPA’s technical survey found that 93 percent
of electric generators and 73 percent of
manufacturers already use screens, the majority of
which are traveling screens.
81 While EPA’s data shows 73 to 93 percent of
facilities already use traveling screens, EPA notes
that many facilities use more than one technology.
For example, some of these facilities also have a
low intake velocity, an offshore velocity cap, or
cooling towers. EPA expects facilities will choose
the IM compliance alternative corresponding to
these pre-approved technologies before they will
choose to comply via optimized performance of
their traveling screens.
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with traveling screens will choose to
either retrofit to modified traveling
screens with fish handling and returns.
Obviously, the impingement technology
performance optimization study cannot
be undertaken until the technology is
first installed. In this case the NPDES
permit would be issued before the
completion of the optimization study.
EPA expects a permit will be issued that
includes a schedule for both the
technology installation and the required
optimization study. As discussed
earlier, the Director can establish
interim measures as appropriate (40
CFR 125.94(b)).
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e. System of Technologies as the BTA
for Impingement Mortality
EPA recognizes that cooling water
intake structures have a variety of
configurations and facilities may choose
to comply with the final rule by using
more than one of the compliance
approaches outlined above. In the June
11, 2012, NODA, EPA described an
approach where facilities would be able
to demonstrate ‘‘credit’’ toward meeting
the impingement mortality requirements
by reducing the total number of
organisms impinged. EPA also intended
for facilities to have the flexibility to
employ any system of technologies or
combination of operational measures to
address impingement mortality so long
as the performance of the selected
impingement reduction measures
represented the best technology
available for the site. The final rule
includes an alternative reflecting these
objectives.
In the broadest sense, facilities have a
number of options for reducing
impingement mortality. Some may
choose to comply using an approach
where a single technology achieves the
level of compliance necessary. Others
may choose an approach of employing
multiple technologies or operational
measures, including reducing the
number of organisms that are impinged
or susceptible to being impinged. The
following are examples of approaches
for which a facility might be able to take
credit for impingement reduction under
this alternative:
• Partial closed-cycle cooling
• Variable speed pumps
• Seasonal outages (including standard
maintenance outages that are
specifically scheduled to avoid a
biologically sensitive period)
• Certain impingement technologies
that reduce the number of organisms
exposed to the intake structure (e.g.,
diversions, louvers, barrier nets)
• Intake location
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• Behavioral technologies (e.g., light or
sound barriers) 82
In each case, the technology
employed reduces the number of
organisms that potentially are impinged,
resulting in a reduction in the number
of organisms actually impinged (i.e., a
reduction in the rate of impingement).
By virtue of reducing the actual
impingement, mortality caused by
impingement is no longer a
consideration—an organism that is
never impinged cannot be killed by the
intake structure. Some technologies
work to reduce the intake flow, thereby
reducing the potential organisms
exposed to the intake. Others work to
divert organisms away from the screens,
either through a physical exclusion or
by being placed in a less biologically
productive area. EPA concluded that it
is appropriate to recognize these
reductions in impingement as a step in
achieving a BTA impingement mortality
reduction performance at a particular
site. As a result, EPA expects the
reduction in impingement will be
treated as an equivalent reduction in
impingement mortality, and will
therefore be considered by EPA or the
State NPDES permitting authority in
evaluating whether the chosen
technologies and operational measures
represent BTA performance under the
site’s conditions. For example, an intake
that operates infrequently due to the
infrequent operation of the electric
generating unit(s) it serves (such as a
peaking unit) may use a relatively small
amount of water on an annual basis
when compared to the design capacity
of the intake structure. This facility may
choose to comply with the impingement
mortality standard at § 125.94(c)(6) by
demonstrating to the Director that the
facility operates at an annual intake
flow that is less than or equal to 24
percent of its design intake flow on an
annual basis. This level of flow
reduction could achieve a level of
performance equivalent to or better than
the impingement mortality performance
standard in § 125.94(c)(7), and therefore
could be considered to be compliant
with the requirements of today’s final
rule. This demonstration may include
82 For example, anadromous clupieds such as
alewife, blueback herring, and American shad have
demonstrated avoidance behaviors when exposed to
high frequency sound. Deployments of this
technology at Entergy’s FitzPatrick Nuclear Station
on Lake Ontario have resulted in a reduction of over
90 percent in impingement of alewife. In this case,
EPA expects the Director would determine that
impingement requirements regarding alewife have
been addressed by the acoustical deterrent. The
Director could disallow such a technology if it were
deemed to have a negative effect on threatened or
endangered species whose habitat includes the
facility’s intake location.
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design data, several years of past
operating data, and dispatch modeling.
These operating conditions would then
be incorporated into the NPDES permit.
A facility complying under this part,
must submit a impingement technology
performance optimization study, which
must include the calculated percent
impingement mortality reflecting
optimized operation of the system of
technologies, operational measures, and
best management practices and all
supporting calculations. Total system
performance is the combination of
impingement mortality performance
reflected in all of the following which
apply:
• Rate of impingement—The
estimated reductions in rate of
impingement must be based on a
comparison of the system to a oncethrough cooling system with a traveling
screen whose point of withdrawal from
the surface water source is located at the
shoreline of the source waterbody. For
impoundments that include waters of
the United States, the facility’s rate of
impingement must be measured at a
location within the cooling water intake
system that the Director deems
appropriate.
• Impingement mortality—If the
demonstration relies in part on a credit
for reductions in impingement mortality
already obtained at the facility, two
years of biological data collection must
be provided, demonstrating the level of
impingement mortality the system is
capable of achieving.
• Flow reduction—If the
demonstration relies in part on flow
reduction to reduce impingement, the
data must include two years of intake
flows, measured daily, as part of the
demonstration. This must include
documentation of how the flow
reduction results in reduced
impingement.
The permitting authorities would
consider this information shown in the
two-year impingement technology
performance optimization study that
must be submitted under this
alternative. For example, at facilities
choosing to comply by demonstrating
that they are operating below 24 percent
of their intake capacity, or that they are
peaking units, the Director should use
this study to establish operating
conditions that ensure that the intake
continues to operate below 24 percent of
its intake capacity or continues to serve
only peaking units and that these units
are not later used as intermediate or
baseload units. The operating
conditions and parameters identified in
the study will then be incorporated in
the facility’s permit conditions. EPA
estimates that approximately 17 percent
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of intake structures will choose this
alternative.
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f. Comply With the Numeric
Impingement Mortality Performance
Standard
Facilities complying with the BTA
impingement mortality standard by
achieving the numeric performance
standard at § 125.94(c)(7) will perform
monthly compliance monitoring to
verify that the 12 month percent
impingement mortality resulting from
operation of its intake is below the
standard established in today’s final
rule. (For more details on complying
with the impingement requirements, see
Section VIII.) EPA expects that, save for
future technologies or innovations, few
facilities will avail themselves of this
option.
2. Entrainment Controls for Existing
Units at Existing Facilities
The BTA entrainment standard for the
final rule establishes a framework under
which EPA or the State NPDES
permitting authority must establish sitespecific BTA entrainment requirements
for each facility in the scope of today’s
rule. EPA considered promulgating no
further controls to address entrainment
mortality, and to rely instead only on
the BTA impingement mortality
controls, which would achieve up to a
34 percent reduction in total AEI. EPA
did not select this option as the basis for
national BTA because, in EPA’s view,
some facilities either are having a
significant impact as a result of
entrainment or might be able to do more
to control entrainment at costs that are
low relative to benefits. In addition,
EPA’s data on entrainment at facilities
are not sufficient to allow the Agency to
categorize facilities requiring no
additional controls for entrainment.
Thus, the final rule by requiring
prescribed information in the permit
application will provide the Director
with adequate information for decision
making. Requiring a structured sitespecific analysis of candidate BTA
technologies for entrainment control
will allow the Director to determine
where it is appropriate to require such
controls. One outcome of the sitespecific analysis could be that the
Director would determine that no other
technologies beyond impingement
controls are required for BTA
entrainment reductions, either because
they are not feasible or because the
social costs of additional control
measures are not justified by the social
benefits.
In the case of site-specific
entrainment controls for facilities
withdrawing greater than 125 mgd AIF,
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the final rule requires facilities to also
develop and submit an Entrainment
Characterization Study and related
supporting information, as described in
§ 122.21(r)(9)–(13) of today’s rule, for
use by the Director in establishing sitespecific BTA. For facilities above 125
mgd AIF that also meet the definition of
closed-cycle recirculating systems at
§ 125.92(c), the Director may reduce or
waive some or all of this information.
EPA considered simply requiring this
information of all facilities above 125
mgd AIF without authorizing Directors
to reduce or waive this information.
However, EPA also recognizes that, in
some instances, these same facilities
have already minimized adverse
environmental impacts significantly. In
such cases, there may be limited value
to the Director requiring a full benefitcost analysis, or even obtaining the
Entrainment Characterization Study at
§ 122.21(r)(9).
EPA also considered not requiring
this information of any facilities above
125 mgd AIF meeting the definition at
§ 125.92(c). First, EPA noted that even
though these facilities meet the
definition of a closed-cycle recirculating
system, they may still withdraw at least
125 mgd, and in some instances
withdraw considerably more than 125
mgd. This is not an insubstantial
volume of water withdrawn for cooling,
and in the case of inland waters this
withdrawal may comprise a large
proportion of that source waterbody. In
addition to withdrawing large volumes
of water, EPA recognizes that some
facilities, particularly those meeting the
definition at § 125.92(c)(2), potentially
withdraw water at a rate similar to a
once-through facility not withdrawing
from an impoundment, with the
potential to cause adverse
environmental impacts similar to those
of once-through cooling. The Director
may find the information in
§ 122.21(r)(9)–(13) to be useful in
determining whether additional controls
are warranted. In these instances, the
Director may decide to require the
Entrainment Characterization Study at
§ 122.21(r)(9) first, in order to determine
if other studies in § 122.21(r)(10) to (13)
are also warranted.
Facilities at or under the 125 mgd AIF
threshold must still provide certain
information under the permit
application requirements at § 122.21(r).
The Director may require additional
information from these facilities
including some or all of the studies at
§ 122.21(r)(9)–(13) if there is reasonable
concern regarding entrainment impacts
at the facility. Where an owner or
operator of a facility intends to comply
with the BTA standards for entrainment
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using a closed-cycle recirculating
system as defined in § 125.92(c), the
Director may reduce or waive some or
all of this information.
Facilities with a closed-cycle
recirculating system as defined at
§ 125.92(c)(2) would still submit the
studies at § 122.21(r)(9)–(13) if they
withdraw greater than 125 mgd AIF, and
if the Director has not waived the
requirements. These facilities have
cooling systems that include
impoundments of waters of the U.S.
where the impoundment(s) was
constructed prior to October 14, 2014
and lawfully created for the purpose of
serving as part of the cooling water
system. This purpose must be
documented to the Director’s
satisfaction in the project purpose
statement of any required Clean Water
Act section 404 permit obtained to
construct the impoundment. In the case
of an impoundment whose construction
pre-dated the CWA requirement to
obtain a section 404 permit, where
alternative permitting documents were
required, the facility must document the
project’s purposes to the satisfaction of
the Director by some other license or
permit obtained to lawfully construct
the impoundment for the purposes of a
cooling water system. EPA notes that for
impoundments constructed in uplands
or not in waters of the United States, no
documentation of a section 404 or other
permit is required. EPA received
comments that such impoundments
should be treated as closed-cycle
cooling and has agreed to make this
change. The Director would still make
the determination that make-up water
withdraws have been minimized.
Further, EPA’s data shows that many
facilities that utilize impoundments as
part of their cooling water systems may
actually use a combination of cooling
water systems (for example, detailed
survey responses showed eight facilities
with an impoundment in addition to
other IM technologies). The requirement
that these facilities provide the Director
with certain information will help
ensure that the Director has adequate
information upon which to base a
decision for these impoundments as to
whether these facilities have adequate
controls already or should be taking
additional measures to protect the
relevant waterbody.
The Entrainment Characterization
Study will include information already
collected to meet existing § 122.21(r)(4)
requirements. In addition, under the
permit application requirements being
added today at § 122.21(r)(5) to (13), the
facility will submit certain additional
site-specific information. This will
include an engineering study of the
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technical feasibility and incremental
costs of candidate entrainment mortality
control technologies. The facility will
also study, evaluate, and document the
technical feasibility of technologies, at a
minimum, including closed-cycle
cooling, fine mesh screens with a mesh
size of 2 mm or smaller, and water reuse
or alternate sources; engineering cost
estimates of all technologies considered;
any outages, downtime, or other effects
on revenue along with a discussion of
all reasonable attempts to mitigate these
cost factors; and a discussion of the
magnitude of water quality and other
benefits, both monetized and
nonmonetized, of the candidate
entrainment mortality reduction
technologies evaluated. Finally, the
information must include a discussion
of the changes in non-water quality
environmental impacts attributed to
technologies and/or operational
measures considered. The factors
include, for example, increases and
decreases in the following: Energy
consumption, and air pollutant
emissions including particulates and
associated human health and global
climate change impacts, water
consumption, noise, safety (e.g.,
visibility of cooling tower plumes,
icing), grid reliability, and facility
reliability. For a thorough discussion of
these study requirements, see Section
VIII. The final rule also requires peer
review of the Comprehensive Technical
Feasibility and Cost Evaluation Study,
Benefits Valuation Study, and NonWater Quality and Other Impacts
Assessment. Peer review of the
Entrainment Characterization Study is
not required. Note that the peer
reviewed studies will rely on data
gathered in the Entrainment
Characterization Study. Peer reviewers
will be selected in consultation with the
Director, who can also consult with EPA
and Federal, State, and Tribal fish and
wildlife management agencies with
responsibility for fish and wildlife
potentially affected by the cooling water
intake structure(s).
Under the final rule, EPA expects that
the Director will review the candidate
technologies for entrainment mortality
control that, at a minimum, includes
closed-cycle recirculating systems, finemesh screens with a mesh size of 2 mm
or smaller, and water reuse or alternate
sources. In the decision about what
additional entrainment controls (if any)
to require, the Director will consider all
the facility-specific factors in
§ 125.98(f)(2) and described above. At a
minimum, the Director must provide a
discussion explaining how issues
concerning air emissions or land
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availability, insofar as they relate to the
feasibility of adoption of an entrainment
technology, and remaining useful plant
life, were addressed in the site-specific
determination. Under the final rule, the
Director must issue a written
explanation for the basis of the BTA
entrainment determination for each
facility. The Director’s decision must
include a written explanation that, at a
minimum, includes consideration of the
following factors: (i) Numbers and types
of organisms entrained; (ii) impact of
changes in particulate emissions or
other pollutants associated with
entrainment technologies; (iii) land
availability inasmuch as it relates to the
feasibility of entrainment technology;
(iv) remaining useful plant life; and (v)
social costs and benefits, which may
include qualitative, quantified and
monetized categories. The Director may
also base the proposed determination on
several other factors, including thermal
effects and water consumption.
In addition to the information
required for development of
impingement controls discussed above,
the regulation also requires, in the case
of facilities withdrawing greater than
125 mgd AIF, submission of certain
other information for use in the sitespecific entrainment determination of
BTA. The final rule also adds the permit
application requirements at § 122.21(r)
(9)–(13) to require the facility to prepare
several studies, including an
Entrainment Characterization Study,
that will fully characterize the extent of
entrainment at the facility. (For more
details about the study, see above). In
addition, under the final rule, the
facility will provide detailed
information on the other factors relevant
to the Director’s site-specific BTA
determination. These will include
information concerning the technologies
available for control of such
entrainment, the costs of controls, the
non-water quality environmental
impacts of such controls, the monetized
and nonmonetized benefits of such
controls, and the presence of any
threatened and endangered species. The
final rule does not limit the Director’s
discretion to consider non-water quality
impacts in determining whether further
entrainment measures are justified. EPA
encourages, and the CWA requires, the
public to have a role in the permitting
process. Interested members of the
public may submit written comments on
a draft permit during the 30 day public
notice and comment period and request
a public hearing on a draft permit. For
permits that are issued by EPA instead
of a state, additional opportunities for
public involvement include comment,
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and in some cases, a public hearing on
a permittee’s State Water Quality
Certification under section 401 of the
CWA. (See 40 CFR 124.10, 124.11,
124.12(a) and 124.17(a).) Therefore, the
final rule clearly affords the public a
meaningful opportunity for
participation in the site-specific
decision making to help ensure the
soundness of both the information and
subsequent determinations.
H. Economic and Benefit Analysis for
the Final Rule
1. Economic Justification for the Final
Rule
Pursuant to the principles in E.O.
12866 and E.O. 13563, EPA has assessed
costs and benefits for the final rule and
has reasonably determined that the
benefits of the rule justify the costs. EPA
has estimated the social cost of this rule
to be $275 million annually. For more
information on EPA’s analysis of the
rule’s costs, see Section IX.
As described in more detail below in
Section X, significant benefits are
associated with the rule. These benefits
include the annual reduction in
impingement mortality of 652 million
age-one equivalents for existing units.
There are, in addition, other important
benefits, many of which EPA cannot
quantify. These benefits include effects
on many shellfish species and nonuse
values associated with the vast majority
of fish and shellfish. The rule also
requires establishing site-specific
entrainment controls through a process
in which specific environmental
conditions and the localized benefits of
entrainment reductions will be assessed
along with the costs of controls. The
information generated in the required
studies will enhance the transparency of
decision making and provide an
opportunity for meaningful public
participation, ensuring that decision
making is based on the best available
data. Overall, these requirements and
subsequent Director actions under this
rule will foster protection and
restoration of healthy aquatic
ecosystems that have important
commercial, recreational, aesthetic and
cultural values to their surrounding
communities. Many of the benefits that
will result from the rule are not
monetized or quantified, and as a result
the Agency’s monetized benefits
analysis underestimates the totality of
the rule’s benefits. On the basis of the
record, EPA has determined that the
impingement mortality and entrainment
controls will result in benefits that
justify the costs of the rule.
EPA also notes that it was able to
generate only a partial estimate of
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benefits for today’s rule. In particular,
EPA’s analysis does not fully quantify or
monetize certain potentially important
categories of benefits, such as existence
values for threatened and endangered
species, secondary and tertiary
ecosystem impacts, benthic community
impacts, shellfish impacts and the
impacts arising from reductions in
thermal discharges that would be
associated with closed-cycle cooling.
Changes in fish assemblages due to
impingement, entrainment and thermal
effects are also not fully valued. These
categories of benefits which are not fully
valued are often referred to as nonuse
benefits—i.e., benefits that people
derive apart from using an affected
resource, such as fishing. For example,
nonuse benefits would include the
value that individuals place on knowing
that an aquatic ecosystem is healthy.
EPA conducted a nonuse benefits
transfer was based on a species that
represents less than one percent of
adverse environmental impacts. EPA
developed and implemented an original
stated preference survey to estimate
total values (use plus nonuse values) for
aquatic resource improvements under
316(b) regulatory options. EPA decided
not to employ the survey results for
purposes of decision-making and EPA
has not accounted for values estimated
from the survey in the quantitative
comparison of costs and benefits. It is
also important to note that EPA’s stated
preference survey was designed to
estimate respondents’ willingness to pay
for changes in the health of fish
populations and aquatic ecosystems and
to be statistically representative at large
(regional and national) scales; the
results were not specifically designed to
be statistically representative at the
facility level for the assessment of
benefits for individual site-level
permitting decisions.
As noted at the outset, it is not always
the case that private decision making
regarding withdrawals of cooling water
takes into account society’s preferences
for fish protection, nor are there market
transaction opportunities for
individuals to express their willing to
pay for fish protection. Thus, despite
the limited information on monetized
social benefits, EPA has concluded that
the benefits of today’s rule justify the
costs of today’s rule.
2. Comparison of the Other Options
As discussed above, EPA considered
three other primary options before
selecting today’s rule. See Section VI.F
Other Options Considered for more
detailed explanation of each option.
Exhibit VI–1 illustrates a comparison of
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the total annualized social costs and
benefits.
entrainment achieves the entrainment
BTA requirements under the national
BTA standard.
EXHIBIT VI–1—COMPARISON OF THE
Thus, EPA expects that, under this
approach, there will be additional
PRIMARY OPTIONS FOR 316(b)
entrainment controls for some facilities
[$2011 Millions at 2013, 3% discount rate]
and none for others. Even where the
Director’s determination requires no
Total
Option
annualized Monetized additional control measures, the
benefits
social cost
Director may conclude the permit
should include conditions that specify
Proposal Option 4
$251.8
$31.0
Final Rule .............
274.9
32.8 proper operation and maintenance of
Proposal Option 2
3643.2
¥1542.6 the installed technology.
EPA notes that in a number of areas
of the country (California, Delaware,
I. Site-Specific Consideration of
New York, and New England; see, for
Entrainment Controls
example, DCNs 10–6963 and 10–6841,
As described above, EPA is not
and EPA Region I’s Brayton Point),
promulgating uniform national
permitting authorities have already
requirements for entrainment for
required or are considering requiring
existing facilities. Instead, EPA is setting
existing facilities to install or retrofit to
standards for entrainment that include a
closed-cycle cooling systems. These
framework by which a facility will be
facilities are still subject to today’s rule
subject to a site-specific determination
but the existing requirements have been
by EPA or a State NPDES permitting
taken into account in costing.
authority of appropriate BTA
For facilities that withdraw more than
requirements for entrainment. This
125 mgd, the rule generally requires that
section describes the process for
the facility conduct an entrainment
determining section 316(b) requirements
study as part of its permit application.
for an individual facility under the
The study will indicate, at a minimum,
national BTA standard for entrainment.
the specific entrainment data collection
It describes the elements that the
methods, taxonomic identification to
Director must consider in the permitting
the lowest taxon possible, latent
decision and how costs and benefits
mortality identification, documentation
may be considered in such an
of all methods, and quality assurance/
evaluation.
quality control procedures for sampling
1. Implementation of a Site-Specific
and data analysis appropriate for a
Evaluation of Entrainment for Existing
quantitative survey. Peer reviewers must
Facilities
be selected in consultation with the
Director, who may consult with EPA
The final rule requires a site-specific
and Federal, State, and Tribal fish and
determination of BTA entrainment
wildlife management agencies with
conditions in individual permits and
responsibility for fish and wildlife
prescribes the requirements for that
potentially affected by the cooling water
permitting proceeding. The final rule
intake structure. Data from the
includes permit application
requirements for facilities with a cooling entrainment study is important to
provide corroboration of any throughwater intake structure. These
facility entrainment survival study
requirements are designed to elicit the
results in § 122.21(r)(7) or from any
information the Director needs to
other studies conducted.
determine the best technology for
The final rule also requires the permit
reducing entrainment for a particular
facility, including information pertinent application to include the following
to an assessment of whether the benefits information as part of the entrainment
justify the costs of any particular control study (which refers to the requirements
at § 122.21(r)(9) through (13), as
measures under consideration.
Today’s final rule is a modification of opposed to the Entrainment
the proposed approach of a site-specific Characterization Study at § 122.21(r)(9)).
For a thorough discussion of these study
BTA entrainment determination. It will
requirements, see Section VIII:
result in one of two outcomes at any
• An engineering study of the
facility:
1. Determination that the facility must technical feasibility and estimated costs
of all candidate entrainment control
install additional control measures that
technologies, including closed-cycle
reduce entrainment beyond that
cooling, fine-mesh screens with a mesh
achieved by the currently installed
size of 2 mm or smaller, and water reuse
equipment. These may include closedcycle cooling and/or other technologies. or alternative sources;
2. Determination that the facility’s
• A discussion of any outages,
current, existing technology for
downtime, or other effects on revenue
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along with a discussion of all reasonable
attempts to mitigate these cost factors
• A discussion of the magnitude of
water quality benefits, whether
qualitative, quantitative or monetized,
of the candidate entrainment reduction
technologies evaluated; thermal
discharges; and
• A discussion of the changes in nonwater quality environmental impacts
and other factors attributed to
technologies and/or operational
measures considered, including, for
example, increases and decreases in the
following: Energy consumption; air
pollutant emissions including
particulates and their health and
environmental impacts; noise; safety
(e.g., visibility of cooling tower plumes,
icing); electric grid reliability, and
facility reliability.
The permit application will provide
the Director with information about
options for entrainment reductions at
the site and other possible avenues for
addressing any adverse effects from
entrainment. The purpose of the
entrainment study and other permit
application materials is to assist the
Director in better understanding the
effect of entrainment on species in the
waterbody from which cooling water is
withdrawn. More specifically, the
entrainment study will identify species
that might be entrained, and estimate
their baseline entrainment rates given
current entrainment controls. Moreover,
the entrainment study will include
information about the aquatic ecosystem
effects of entrainment of species, and
any threatened and endangered species
whose range of habitat includes waters
where the facility’s intake is located. An
understanding of the potential
ecosystem consequences of entrainment
for species will help inform Director
decisions about additional information
required in the permit application, or
permit requirements for any possible
additional technologies and
management practices. EPA will
endeavor to identify high-quality
examples of entrainment studies as they
are completed, and post them to its Web
site for this rule as a resource for study
preparation.
EPA’s benefits estimates were based
on an extrapolation of available
literature on impingement and
entrainment studies; the specific
Entrainment Characterization Study
prepared by a facility could lead to a
different estimate of impingement and
entrainment for that facility relative to
its share of EPA’s estimate in the
analysis supporting this rule and in the
record.
Following the Director’s review of this
information, the Director must
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determine what BTA entrainment
requirement to propose and explain in
writing the basis for the draft permit.
The draft permit will then be available
for comment from the interested public
under the Director’s normal permitting
process.
2. Site-Specific Consideration of Cost
and Benefits
In establishing requirements under
section 316(b) of the CWA, the Supreme
Court in Entergy made clear that one
factor that EPA may, but is not required,
to consider is the costs and benefits
associated with various control options.
That is, in setting standards, EPA may
consider the benefits derived from
reductions in the adverse environmental
impacts associated with cooling water
intake structures and the costs of
achieving the reductions. As previously
explained, following E.O. 13563, EPA
has determined that the benefits of the
final rule justify its costs. In addition,
EPA has explained (in Section II.C
above) why consideration of
quantitative and qualitative social costs
and benefits may be appropriate in the
site-specific determinations when
establishing entrainment controls.
In the site-specific proceeding, the
Director must consider, among other
factors, monetized, quantified and
qualitative social benefits and social
costs of available entrainment controls,
including ecological benefits and
benefits to any threatened or
endangered species. The Director may
be able to reject otherwise available
entrainment controls if the costs of the
controls are not justified by their
associated benefits (taking into account
monetized, quantified, and qualitative
benefits), and the other factors
discussed in the final rule.
In making the site-specific
entrainment BTA requirements
determination, the final rule requires
that the Director consider the
information submitted under § 122.21(r)
with the section 316(b) permit
application. Further, in the case of the
larger withdrawing cooling water intake
structures (125 mgd AIF or greater), the
rule requires submission of additional
information including, studies on
entrainment at the facility, the costs and
feasibility of control options, and
information on the benefits of
entrainment controls. In evaluating
benefits, the Director should not ignore
benefits that cannot be monetized or
quantified or consider only the
impingement and entrainment
reductions that can be counted. To
result in appropriate decisions from
society’s standpoint, the assessment of
benefits must take into account all
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benefits, including categories such as
recreational, commercial, and other use
benefits; benefits associated with
reduced thermal discharges; reduced
losses to threatened and endangered
species; altered food webs; benefits
accruing nonlocally due to migration of
fish; nutrient cycling effects; and other
nonuse benefits. Merely because it is
difficult to put a price tag on those
benefits does not mean that they are not
valuable and should not be included at
least qualitatively in any assessment.
The rule does not require the Director to
require a facility owner or operator to
conduct or submit a willingness-to-pay
survey to assess benefits. Further, the
rule does not limit the Director’s
discretion to consider non-water quality
impacts in determining whether further
entrainment measures are justified.
When some benefits are not monetized,
the requirement to consider costs and
benefits in today’s rule does not mean
the Director should base decisions
solely on the monetized benefits and
costs, ignoring the non-monetized
benefits. Instead, the Director should
consider the costs and what the
magnitude of the non-monetized
benefits would have to be in order to
justify the costs.
An aggregate evaluation of benefits
(even if accurate) would not account for
the variations in benefits from location
to location. On the basis of available
information, EPA’s analysis of benefits
relied on extrapolating data from
existing impingement and entrainment
characterization studies to all facilities
in the same region on a flow-weighted
basis. Differences in species, life stages,
and biological abundance across intake
locations (even within a region) could
lead to very different results for a sitespecific analysis of a facility as
compared to that facility’s share of
national costs and benefits, even if the
national results are, on average,
accurate. A national assessment tends to
mask variations in benefits and costs
from different geographical locations for
different water bodies. For example:
• Some fish species at coastal
facilities have biological spawning
attributes that differ from those at other
locations.
• The proportion of the receiving
water withdrawn for cooling could also
vary among sites.
• The values that communities place
on their resources could vary from site
to site.
• One ecological environment might
experience large masses of hardier eggs
and larvae subject to potential
entrainment; another will have fewer
but less hardy eggs and larvae
susceptible to entrainment. Without
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detailed study information, it’s difficult
to ascertain which ecological
environment faces the greater adverse
environmental impact from a similar
cooling water intake.
The resulting differences in the value
of reduced entrainment—which could
be dramatic for some sites—necessarily
disappear in a national aggregation of
results. The Agency has decided that
this masking of variation in benefits
further supports EPA’s decision to
require consideration of the site-specific
benefits of entrainment control
technologies in the site-specific process
to establish entrainment controls.
The Director must then explain the
basis for rejecting an available
technology not selected for entrainment
control in light of the submissions after
consideration of the three factors that
supported EPA’s determination not to
establish a uniform national
entrainment standard based on closedcycle cooling. The Director also must
base the determination about BTA
controls on the number and types of
organisms entrained, including
Federally-listed, threatened and
endangered species and designated
critical habitat (e.g., prey base) as well
as consideration of the site-specific
social costs and benefits (monetized and
nonmonetized) of the various control
technologies considered for the
facilities.
As noted, the Director may reject an
otherwise available entrainment
technology as the BTA requirement (or
not require any additional BTA
controls) if the social costs of the
controls are not justified by the social
benefits (monetized and nonmonetized).
EPA decided to adopt this approach in
determining site-specific entrainment
controls because it is permissible under
Entergy, under E.O. 13563, and
consistent with the more than 30-year
history of section 316(b) permitting
decisions.
This history illustrates the role that
cost/benefit considerations have played.
As early as 1977, EPA in a permitting
decision and a General Counsel opinion
explained that, while section 316(b)
does not require a formal cost-benefit
analysis, the relationship of costs and
benefits may be considered in 316(b)
decision making. In re Pub. Serv. Co. of
N.H. (Seabrook Station, Units 1 and 2),
No. 76–7, 1977 WL 22370 (June 10,
1977), remanded on other grounds, 572
F.2d 872 (1st Cir. 1978); accord In re
Central Hudson Gas & Elec. Corp., Op.
EPA Gen. Counsel, NPDES No. 63, 1977
WL 28250, at *8 (July 29, 1977). In the
more than 30 years since, EPA and State
permitting authorities have considered
the relationship between costs and
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benefits to some extent in making
individual permitting decisions. See, for
example, In re Pub. Serv. Co. of N.H.
(Seabrook Station, Units 1 and 2), No.
76–7, 1978 WL 21140 (E.P.A. Aug. 4,
1978), aff’d, Seacoast Anti-Pollution
League v. Costle, 597 F.3d 306, 311 (1st
Cir. 1979).
Because E.O. 13563 directs agencies
to propose and adopt rules only upon a
reasoned determination that the benefits
justify the costs, EPA is allowing this
consideration to be applied at the
permit level. This approach is
consistent with the historical
application of section 316(b)
requirements and will allow for a full
assessment in permit decisions of both
qualitative and quantitative benefits and
costs. As designed, EPA’s requirement
for the establishment of site-specific
BTA entrainment requirements strikes
an appropriate balance between
environmental improvements and costs,
allowing the Director to consider all the
relevant factors on a site-specific basis
and determine BTA on the basis of those
factors.
After considering the factors relevant
to a site, the Director must establish
appropriate entrainment controls at
those facilities. The Director must
review available control technology and
may reject otherwise available
entrainment controls as BTA if the
social costs of the controls are not
justified by their social benefits (taking
into account both quantified and nonquantified benefits) or if the Director
concludes that there are other
unacceptably adverse factors that cannot
be mitigated. As designed, EPA’s
national BTA standard for establishing
site-specific BTA entrainment
requirements strikes an appropriate
balance between environmental
improvements and costs by selectively
requiring closed-cycle cooling or other
entrainment technologies at some
facilities, without requiring the same
technologies at all facilities.
3. Potential Cost for Site-Specific
Entrainment Controls
For the proposed rule, EPA analyzed
possible additional costs associated
with reductions in entrainment
mortality that might result from the
Directors’ determinations of site-specific
BTA requirements. Because this process
will play out over a number of years as
Directors consider waterbody-specific
data, local impacts, and public
comment, and weigh land availability,
air quality impacts, and remaining
useful life, those estimates of the costs
of site-specific determinations are
highly speculative. EPA is not
presenting specific cost estimates today
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for prospective entrainment
requirements because we do not have in
hand the robust data that will be
generated for individual site-specific
settings as required under the national
BTA standard for entrainment. Without
that refined information on a sitespecific basis, EPA has no ability to
predict Director decision-making and
therefore, the Agency is not estimating
costs associated with the ultimate
entrainment requirements. Similarly
and for the same reasons, EPA did not
estimate costs associated with
requirements at §§ 125.94(g),
125.94(c)(8) or 125.94(c)(9).
EPA estimates that the most effective
technology for reducing entrainment,
closed-cycle cooling, is not available to
at least one quarter of all facilities
because of geographic constraints, air
permitting restrictions in a
nonattainment area and remaining
useful life of the facility. EPA has
limited information on which facilities
these are, despite the certainty that
these availability concerns are real and
significant. In addition, EPA does not
have in hand the site-specific data that
will be generated as a result of today’s
rule. If EPA had this data, it would be
possible to estimate the costs and
benefits ultimately associated with the
Directors’ site-specific determinations
under the national BTA standard for
entrainment. The hypothetical costs
generated at proposal were reported in
an attempt to signal that EPA neither
expects that zero facilities would be
subject to closed-cycle cooling as a
result of the site-specific BTA process
for entrainment, nor that all facilities at
which these technologies are feasible
would be subject to closed-cycle cooling
requirements. Without the site-specific
information, there is significant
uncertainty around any estimates EPA
could generate of these costs (including
those reported at proposal) and benefits.
VII. Response to Major Comments on
the Proposed Rule and Notices of Data
Availability (NODAs)
Over 1,100 organizations and
individuals submitted comments on a
range of issues in the proposed rule,
including over an additional 62,000
letters from individuals associated with
mass letter writing campaigns. An
additional nearly 250 comments were
received on the two NODAs. Responses
to all comments, including those
summarized here, are in the Response to
Comments document in the official
public docket (see DCN 12–0004). To
facilitate a more comprehensive
response and to simplify the task of
discussing EPA’s rationale for
promulgating the final rule, EPA is
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responding to these public comments in
essay form. Each topic area discussed in
the comment letters has been addressed
in one of the comprehensive essay
responses. The major comments
received and EPA’s responses are
summarized in this section.
A. Scope and Applicability
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1. Source of Water—Impoundments
Many commenters expressed concern
that the proposed rules do not
adequately address the unique water
bodies resulting from the many manmade reservoirs specifically designed
and constructed as cooling water
impoundments (referred to as cooling
ponds in the proposed rule).
Commenters expressed confusion
regarding the applicability of the
proposed regulations because
impoundments have both intakes from
the impoundments and intakes that
supply water to the impoundment.
Many requested that EPA clarify that
man-made impoundments, built to
supply water for power plants, do not
constitute water of the United States for
purposes of implementing the rule or
that they should be classified as meeting
the definition of closed-cycle cooling.
Response: As discussed in Section I,
facilities that withdraw cooling water
from impoundments that are waters of
the United States and that otherwise
meet the criteria for coverage (including
the requirement that the facility has or
will be required to obtain an NPDES
permit) are subject to today’s rule.
Revisions to the definition of waters of
the U.S. are outside the scope of this
rulemaking. However, today’s regulatory
definition of closed-cycle recirculating
systems specifies that such a system
may include impoundments of waters of
the U.S. where the impoundment was
constructed prior to today’s final rule.
To meet the rule definition for closedcycle recirculating system, this
impoundment must have been lawfully
created for the purpose of serving as
part of the cooling water system as
documented in the project purpose
statement for the Clean Water Act
section 404 permit obtained to construct
the impoundment. In the case of an
impoundment whose construction predates the CWA requirement to obtain a
section 404 permit, EPA expects
documentation of the project’s purpose
to be demonstrated to the satisfaction of
the Director. This documentation could
be some other license or permit
obtained to lawfully construct the
impoundment for the purposes of a
cooling water system, or other such
evidence as the Director finds necessary.
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The definition of closed-cycle
recirculating system at § 125.92(c)(1) of
today’s rule also specifies that
impoundments that are not waters of the
United States but withdraw make-up
water from waters of the U.S. meet the
definition of a closed-cycle recirculating
system, if make-up withdrawals have
been minimized. These impoundments
are constructed in uplands, and are not
required to obtain a 404 permit. Thus,
these impoundments do not need to
provide documentation of the project’s
purpose.
2. New Units
In the proposal, EPA defined new
units as newly built units added to
increase capacity at the facility. The
definition did not include any rebuilt,
repowered or replacement unit,
including any units where the
generation capacity of the new unit is
equal to or greater than the unit it
replaces. Many industry stakeholders
agreed that the definition of new units
should not include repowered existing
units. Others thought that new units
should be treated similarly to existing
units with entrainment standards
applied on a site-specific basis and that
the nine proposed factors should also be
applied to entrainment decisions for
new units. Environmental organizations
argued that EPA should set a deadline
by which all existing facilities must
comply with the new unit standards and
that EPA’s exclusion of repowered/
rebuilt facilities created a loophole
through which existing facilities could
perpetually operate as an existing unit,
even after replacing all of the generating
equipment. Many of the comments had
several elements in common:
• Requirements should be flexible
enough to address sites where meeting
the requirements is not technically
feasible (e.g., limited land availability).
• EPA needs to provide greater clarity
regarding how new unit standards apply
to manufacturing facilities.
• The DIF is a more appropriate
parameter for determining compliance
because AIF cannot be determined until
after the system is built, and baseline
AIF would require assumptions about
as-yet undetermined operational factors.
• It is unclear how the new unit
requirements will be applied to
manufacturing units, and the
requirements do not appear to consider
the circumstance where a new unit is
constructed at an existing
manufacturing facility where
construction of the new unit does not
require any modifications to the existing
intake structure.
• Some commenters have noted that
the new unit provisions are a departure
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from previous determinations and are
unclear. They argue that they have not
had adequate opportunity to comment
on this issue and request EPA repropose new unit requirements if it
wants to continue with this initiative.
Response: EPA’s definition of a ‘‘new
unit’’ for the final rule can be found at
§ 125.92(u). New units includes the
addition of a stand-alone unit that is
constructed at an existing facility. The
rule definition makes it clear that the
new unit may be for the same general
industrial activity as the existing
facility. Because the requirements are
much like the Phase I requirements for
new facilities the costs for installing
controls at new units are similar to the
costs imposed on new facilities. The
cooling water withdraws made by the
rest of the existing facility are subject to
the requirements at 40 CFR 125.94(c)
and (d).
With respect to impingement
mortality and entrainment, the final rule
requires, at § 125.94(e)(1), that new
units achieve flows commensurate with
that of a closed-cycle recirculating
system. As with the new facility Phase
I rule, the new unit may choose to meet
an alternative requirement at 40 CFR
125.94(e)(2) and demonstrate to the
Director that the technologies and
operational measures employed will
reduce the level of adverse
environmental impact from any cooling
water intake structure used to supply
cooling water to the new unit to a
comparable level to that which would
be achieved upon implementing closedcycle recirculating for that new unit.
This includes a demonstration showing
that the entrainment reduction is
equivalent to 90 percent or greater of the
reduction that could be achieved
through implementing a closed-cycle
recirculating system. This
demonstration must also include a
showing that the impacts to fish and
shellfish, including important forage
and predator species, within the
watershed will be comparable to those
which would result if the facility were
to implement a closed-cycle
recirculating system.
Facilities may choose to install a
closed-cycle recirculating system, and
EPA has observed that many new units
are selecting closed-cycle recirculating
systems on their own, particularly for
combined cycle and natural gas for
reasons unrelated to 316(b) (such as
water availability). In these cases,
benefits related to reductions in IM&E
would be expected to occur.
Finally, for new units at existing
facilities, the Director may establish
alternative requirements if the data
specific to the facility indicate that
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compliance with the requirements of
paragraphs (e)(1) or (2) of § 125.94 for
each new unit would result in
compliance costs wholly out of
proportion to the costs EPA considered
in establishing the requirements at
issue, or would result in significant
adverse impacts on local air quality,
significant adverse impacts on local
water resources other than impingement
or entrainment, or significant adverse
impacts on local energy markets. This
provision is identical to that provided in
the Phase I new facility rule.
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B. Proposed Amendments Related to
Phase I Rule
Commenters suggested that
restoration be allowed in a range of
situations, including where a nuisance
species is a problem that will get worse
with the use of cooling water intake
structure technology, where affected
species are not species of concern in
man-made lakes, and to reduce the cost
of meeting 316(b) requirements (i.e.,
offset losses).
Response: The Second Circuit found
that EPA exceeded its authority by
allowing facilities subject to CWA
section 316(b) to comply with section
316(b) through restoration measures
and, thus, EPA has deleted these
provisions from the regulations at
§§ 125.84 and 125.86 to make the rule
consistent with the court decisions.
C. Environmental Impact Associated
With Cooling Water Intake Structures
Many commenters expressed concern
that limited scientific evidence exists
that measureable aquatic population or
community effects occur as a result of
cooling water withdrawals and that
impingement mortality and entrainment
mortality requirements should not apply
unless adverse environmental impacts
are demonstrated. They also noted that
not all environmental impacts are
adverse. For example, removal of
invasive species or quickly reproducing
species might not be harmful.
Response: EPA disagrees. The
evidence shows that the total number of
aquatic organisms lost annually is in the
hundreds of billions, or is 1.9 billion on
an age-one equivalent basis. Additional
data provided in comments shows
aquatic organisms are lost through
impingement and entrainment by all
types of cooling water intake structures.
The data demonstrates that the effects of
cooling water intake structures on the
aquatic environment are significant and
widespread. In addition, there is
documented evidence of population
level effects of cooling water intakes for
certain species in certain instances. See,
for example, 69 FR 41587, July 9, 2004
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for a discussion from the 2004 Phase II
rule. Also, Bayshore, Indian River and
Indian Point are discussed in the BA for
the final rule.
D. EPA’s Approach to BTA
1. Relationship of Costs and Benefits
Many commenters expressed concern
that the proposed rule’s costs
significantly outweigh the benefits and
that studies, technology modifications,
monitoring, and reporting should not be
required if costs exceed benefits.
Response: While the rule costs exceed
the monetized benefits as presented,
EPA has concluded that the costs do not
outweigh total benefits when both
monetized and nonmonetized benefits
are considered. EPA notes that the
monetized benefits are only a subset of
all benefits. In the absence of complete
estimates of nonuse benefits, EPA
estimated partial nonuse benefits for the
final rule using the benefits transfer
approach from proposal. This approach
is still a partial estimate, because the
nonuse benefits transfer was based on a
species that represents less than one
percent of adverse environmental
impacts. With respect to entrainment,
the rule authorizes the Director to
consider costs versus benefits on a sitespecific basis. With respect to
impingement mortality, the rule
provides seven compliance alternatives
based on a set of widely used,
demonstrated, proven technologies,
many of which have been in use for
decades and whose efficacy is well
supported in EPA’s record.
2. Site-Specific Approach
Many commenters agreed with EPA’s
site-specific approach for entrainment
mortality requirements but argued that
the same approach should also be
applied to impingement mortality
requirements. State agencies and
environment organizations are
concerned that the site-specific
entrainment determinations will create
additional administrative burdens on
already overextended permitting
authorities which could exacerbate
permit backlogs.
Response: EPA does not agree that
impingement mortality is best addressed
by the same approach adopted for
entrainment. This is because EPA has
been able to identify low-cost
technologies that are available, feasible
and demonstrated for impingement
mortality nationally. EPA has not been
able to identify an available, feasible
and demonstrated technology nationally
for entrainment, and therefore has
adopted as its national BTA entrainment
standard a structured process for
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determining on a site-specific basis
what entrainment controls are the best
technology available at a particular
facility. EPA agrees that site-specific
entrainment has potential to create
additional burdens for states, but EPA
has tried to limit this burden by
simplifying its information collection
requirements from those at proposal.
EPA has streamlined the information
collection requirements so that
information necessary for the Director to
make a BTA determination is submitted
by the permittee in the permit
application early in the process, thus
minimizing the number of transactions
between permittee and the Director.
E. BTA Performance Standards
1. Impingement Standards
EPA received a substantial number of
comments on how the final rule should
address impingement mortality. EPA
proposed an impingement mortality
standard based on the performance of
modified traveling screens with fish
handling and return that required
achievement of a numeric IM
performance standard. As an alternative
EPA proposed that a facility could
demonstrate that either the design
intake velocity or the actual intake
velocity at its operation was less than
0.5 fps. Most of the commenters,
including members of the U.S. Congress,
state and local elected officials, and
industry stakeholders, requested
additional flexibility in complying with
the impingement mortality standards.
While the proposal would not
specifically require the use of modified
traveling screens with a fish handling
and return system to meet the
impingement mortality standards, some
commenters interpreted the proposed
rule as requiring this. EPA proposed
impingement mortality standards that
were expressed as a monthly average
and a 12-month average. EPA
recognizes, however, that some
regulated entities might find a
technology-based compliance option,
rather than a performance-based
approach, more attractive. Such an
approach, particularly the specification
of pre-approved technologies, could
offer higher regulatory certainty, easier
demonstration of compliance, and might
offer a less expensive alternative
because of reduced monitoring
requirements associated with preapproved technologies. Some
commenters viewed the proposed
impingement mortality standard as
overly stringent and requested that EPA
establish alternative impingement
mortality standards, including sitespecific impingement mortality
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requirements similar to those proposed
for entrainment. Other commenters
provided data pertaining to the
performance of technologies, including
modified traveling screens used as the
basis for the impingement mortality
performance standard. Several industry
stakeholders stated that, despite EPA’s
best intentions, the proposed rule
applied a one-size-fits-all approach for
impingement mortality. While all the
suggested changes to the proposal seek
to provide additional flexibility through
a variety of approaches, most of the
comments had several elements in
common:
• Defining modified traveling screens
as a pre-approved technology or
otherwise streamlining the NPDES
process for facilities using the candidate
technology on which BTA is based.
Thus, EPA would designate certain
technologies or certain conditions as
complying with the impingement
requirement.
• Providing a mechanism to identify
other technologies that perform
comparably to modified traveling
screens.
• Modifying the proposal so that
facilities that have already reduced the
rate of impingement could obtain credit
toward the impingement mortality
standard.
• Developing a more tailored
approach to protecting shellfish.
• Creating alternatives for facilities
with very low (de minimis)
impingement levels or mortality rates.
• Providing additional clarity on
species of concern as it pertains to
demonstrating compliance with the
numeric impingement mortality
performance standard.
• Reevaluating the impingement
mortality numerical performance
standards.
In addition, as noted above, EPA also
received a number of comments
suggesting that it adopt a site-specific
approach to reducing impingement
mortality similar to the proposed
approach for addressing entrainment,
rather than uniform national
requirements for impingement mortality
and a site-specific approach for
entrainment only.
Many commenters expressed concern
that the entrapment requirements were
not well defined and would require
costly technologies that are not
considered in EPA’s cost estimates and
could be difficult to comply with,
particularly where cooling systems
employ impoundments or basins
downstream of the initial intake
structure.
Response: See the earlier discussion
concerning how EPA determined the
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numeric impingement mortality
performance standard. Additionally, see
earlier discussion for an explanation of
how EPA revised the impingement
mortality standard to provide seven
alternatives for compliance.
EPA agrees that specific entrapment
requirements are not necessary and
requirements for facilities to deploy
technologies to avoid entrapment have
been deleted from the final rule.
However, a facility that entraps fish
must count the entrapped organisms as
impingement mortality.
2. Entrainment Standards
A substantial number of commenters
supported EPA’s site-specific approach
for entrainment standards. Suggested
revisions to the approach included the
following:
• EPA should recognize the value of
waterbody-based requirements,
including withdrawals on lakes/
reservoirs and less than 5 percent of
rivers as not requiring entrainment
mortality.
• Units with a low capacity
utilization should be exempt from
entrainment mortality.
• Facilities with AIF of less than 125
mgd should be presumed as
entrainment mortality compliant.
• EPA should consider entrainment
survival.
Response: With respect to waterbodybased requirements and capacity
utilization thresholds, EPA disagrees
with commenters suggestions. There is
no fundamental difference in
technological performance based on
waterbody so there is no need to
subcategorize based on waterbody. EPA
found that low CUR facilities are
generally peaking plants that operate at
full capacity for portions of days during
a few months or less. Further, EPA
found that some sites continue to
withdraw water through their cooling
water intake structure even when no
power is being generated. If that period
of cooling water intake operation
corresponds with times when spawning
is occurring, those facilities could have
significant impacts from impingement
and entrainment. Therefore, simply
being a low CUR unit does not imply no
adverse environmental impacts. Instead,
EPA found that low CUR should be
looked at more closely on an individual
unit basis. EPA has included a provision
in the final rule that states where a
generating unit has an annual average
capacity utilization rate of less than 8
percent averaged over a 24-month block
contiguous period, the owner or
operator may request that the Director
establish less stringent standards for IM.
With respect to facilities below 125 AIF
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being considered entrainment
compliant, EPA disagrees with the
comment since any facility at any flow
may have an adverse environmental
impact. With regard to entrainment
survival, EPA does allow for
consideration of entrainment survival.
The monitoring requirements for
entrainment for new units at
§ 125.96(d)(3) states that mortality after
passing the cooling water intake
structure must be counted as 100
percent mortality unless you have
demonstrated to the approval of the
Director that the mortality for each
species is less than 100 percent.
3. Closed-Cycle Cooling
Both industrial stakeholders and
many state agencies endorsed an
approach that deems facilities with
closed-cycle cooling to be in compliance
with the BTA impingement mortality
standard, and eligible for reduced
monitoring and reporting requirements.
Most industrial stakeholders agreed
with the EPA decision that closed-cycle
cooling should not be imposed as a
national BTA standard. They argue that
although closed-cycle cooling might be
available and achievable at many
facilities, requiring closed-cycle cooling
nationally has numerous drawbacks
including the following:
• Requirements for closed-cycle flow
reduction do not take into consideration
the site-specific limitations at some
facilities (e.g., blowdown water quality,
scale, fouling problems).
• Cooling towers would result in
significant adverse impacts from fine
particulates, carbon dioxide emissions,
evaporative water loss, and other issues.
Commenters expressed concern that
the proposed definition of a closedcycle recirculating system is far more
restrictive than the definition used in
the Phase I rule. It includes only
systems that withdraw make-up flow
intermittently, are designed to operate
above minimum COC, reduce flow by a
specified percentage (depending on
whether salt or fresh water), and did not
include impoundments that are waters
of the United States. Some commenters
stated that while they might have been
effectively operating as closed-cycle
units for many years, they have
concerns with their ability to comply
with the definition in the proposal,
particularly with respect to the specified
COC.
Response: EPA agrees that facilities
employing a closed-cycle recirculating
system for entrainment should also be
deemed in compliance with the
impingement mortality standard, as long
as the system is properly operated.
While a closed-cycle recirculating
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system is the most effective technology
for reducing entrainment, EPA has not
established BTA based on closed-cycle
cooling because EPA concluded it was
not BTA, for the reasons specified in
Section VI. Regarding the definition of
closed-cycle cooling, EPA identified two
parameters that demonstrate proper
operation: Flow reduction and cycles of
concentration. To provide flexibility,
EPA has removed the numeric levels of
the metrics as threshold, while retaining
the minimized makeup flows aspect of
the definition. Therefore while the
definition in this final rule does not
establish fixed requirements in terms of
COC and comparable percentage flow
reduction to qualify as a closed-cycle
recirculating system, the rule provides
that a closed-cycle recirculating system
‘‘generally’’ will achieve the specified
benchmarks that characterize a properly
operating closed-cycle cooling system.
EPA further recognizes that certain
unavoidable circumstances could exist
where the specified COC or percent
reduction values might not be
achievable. Such site-specific
circumstances could include situations
where water quality-based discharge
limits might limit the concentration of
a pollutant that is not readily treatable
in the cooling tower blowdown or
situations where the source water
quality could lead to unavoidable
problems concerning scale formation,
solids buildup, corrosion, or media
fouling. If a facility can demonstrate that
these occurrences are unavoidable,
under the definition in the final rule,
the Director may determine that such a
facility is a closed-cycle recirculating
system, taking into account the sitespecific circumstances. In addition, EPA
has explained how the conditions added
to the existing facilities definition do
not in effect make it more stringent than
the Phase I definition of closed-cycle
recirculating systems. The auxiliary
electricity a facility uses to run the fans
in a closed-cycle system is electricity
the facility can’t sell. The opportunity
cost to the facility of using that
electricity to run the fans is the forgone
revenue they would have been able to
earn if they had run their cooling water
system in once-through mode. The
forgone revenue provides the incentive
for a facility to run its closed-cycle
system in once-through mode, rather
than in closed-cycle mode. Thus, EPA
adjusted the definition of a closed-cycle
recirculating system to be appropriate
for retrofit situations.
F. Implementation
Many commenters expressed concern
that the compliance timeline for
impingement mortality and entrainment
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requirements should be synchronized to
prevent a facility from having to install
technology to comply with
impingement mortality requirements
and then later be required to install
entrainment mortality technology.
Response: To address this concern,
EPA revised the impingement mortality
compliance requirements to provide
that after issuance of a final permit
establishing the entrainment
requirements under § 125.94 (d), the
owner or operator of an existing facility
must comply with the impingement
mortality standard in paragraph
§ 125.94(c) as soon as practicable. When
the Director establishes a compliance
schedule under § 125.94(d), the
schedule must provide for compliance
as soon as practicable. Thus, EPA has
synchronized decision making about
technology requirements, avoiding
situations where investments in IM
controls would later be rendered
obsolete by entrainment control
requirements.
G. Costs
1. Impingement Mortality Technology
Costs
Commenters expressed concern about
the approach for technology
assignments used to estimate
compliance with the impingement
mortality standards and generally
asserted that costs were underestimated.
These concerns included the following:
• The EPA incorrectly assumed
traveling screens were an available
technology at most facilities.
• EPA underestimated the costs of
modified traveling screens.
• EPA underestimated the difficulty
and costs of installing fish returns.
Response: EPA disagrees that
traveling screens are not an available
technology at most facilities; survey
data provided by industry shows that 93
percent of generators and 73 percent of
manufacturers already have screens.
EPA agrees that some facilities may not
be able to readily upgrade their screens
to modified traveling screens with fish
return, but that the vast majority can.
EPA has updated the estimated costs
of the rule to reflect the difficulty of
installing fish return and adjusted the
cost of modified traveling screens to
reflect most recently available vendor
data. Specifically, EPA reviewed the
cost methodology and made a number of
revisions including the following:
• EPA revised the technology
assignment such that only those model
intakes that have existing traveling
screens are assigned modified traveling
screen costs.
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• EPA increased the estimated capital
costs for modified traveling screens by
20 percent.
• EPA increased the estimated capital
costs of fish returns and provided for an
additional increase for facilities whose
intakes would be difficult to install fish
returns.
For further discussion, see Section IX
and the TDD (Chapter 8).
2. Entrainment Mortality Technology
Costs
Industrial stakeholder commenters
argued that closed-cycle cooling costs
are underestimated and the cost analysis
fails to include any costs for
entrainment requirements. Riverkeeper
argued that the EPA closed-cycle costs
are overestimated.
Response: For both the proposal and
this final rule, EPA revised the
methodology for estimating closed-cycle
costs from what was used for Phase II
and Phase III. EPA’s revised
methodology is based on the cost
methodology provided by the Electric
Power Research Institute (EPRI). EPRI
based its cost methodology on over 50
actual and planned closed-cycle cooling
system retrofits and EPA concluded that
these cost estimates better reflect actual
costs. EPRI has updated their closedcycle cost methodology since EPA
adoption of the earlier version and
provided an estimate of closed-cycle
costs for generators with a design flow
above 50 mgd (See DCN 12–6807). A
comparison between the EPRI estimates
and comparable EPA estimates indicate
that the EPA capital and downtime costs
are somewhat lower than the EPRI
estimates, while the EPA energy penalty
costs are higher. (See DCN 12–6656.)
While Riverkeeper cites actual costs
from retrofit projects completed in 1998
and 2002 to support the argument that
EPA’s capital costs are overestimated,
EPA has identified more recent closedcycle retrofits where the capital costs
were much higher than the EPA average,
suggesting that the costs used by EPA in
the final rule are representative of the
range of costs that may occur
nationwide. (See DCN 12–6656.) Thus
EPA considers its closed-cycle costs to
reasonably reflect actual costs.
EPA also received estimated costs for
closed-cycle retrofits at small, medium,
and large manufacturing cooling
systems from the American Chemical
Council (ACC). A comparison of these
costs to comparable EPA estimates
indicated that for larger systems the
costs are mostly in agreement but that
for smaller systems (e.g., 5,000 gpm), the
EPA cost estimates are lower. EPA’s
acknowledges its methodology uses a
linear approach and does not fully
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account for the increased costs
associated with the diseconomies of
scale at the lower end of the spectrum
of system sizes.
Under EPA’s selected option,
compliance for entrainment reduction
requirements is established on a sitespecific basis. Because no particular
result is prescribed under this approach,
it is difficult to ascribe compliance costs
for this aspect of the rule without the
site-specific information that will be
generated as a result of the national BTA
standard for entrainment decisionmaking established by today’s rule. For
Proposal Options 2 and 3 where closedcycle cooling would be required, EPA
did estimate costs for closed-cycle
cooling. EPA has not estimated what
site-specific determinations will be
made as part of the analysis.
H. Monitoring and Reporting
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1. Velocity Monitoring
Many commenters explained that it
would be difficult to directly measure
through-screen velocity for screen
technology and agreed with the
suggestion in the NODA that EPA
should allow for calculation of throughscreen velocity. Also, many were
concerned that a velocity limit based on
minimum water levels would be
difficult to comply with. Of concern are
extreme conditions that are beyond the
facility’s control (e.g., low water due to
drought).
Response: EPA agrees that direct
measurement of intake velocity on a
traveling screen may be problematic in
some circumstances, and the final rule
allows intakes to comply with the low
velocity IM compliance alternatives by
either calculation or direct
measurement. Compliance will be
demonstrated through monitoring and
reporting of actual or calculated intake
velocities. Short-term exceedances of
the velocity may be permissible for brief
periods, with Director approval, for
purposes of maintaining the cooling
water intake system, such as
backwashing the screen face. EPA
expects that facilities will employ
appropriate design and operational
measures to ensure that the maximum
velocity is not exceeded during
minimum ambient source water surface
elevations, as can be anticipated
through best professional judgment
using hydrological data.
2. Impingement Mortality Monitoring
EPA received many comments
concerning impingement mortality
monitoring. Issues regarding
impingement monitoring included the
following:
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• Many commenters expressed
concern that the impingement mortality
standard is unclear as to what species
the impingement mortality requirements
apply.
• Intakes with low impingement
would have difficulty calculating
impingement mortality.
• Monitoring requirements for
impingement mortality are excessive,
especially given the physical and
biological challenges of appropriate
sampling.
• Monitoring requirements should be
eliminated for properly installed/
operated pre-approved technologies.
• Impingement ‘‘selects’’ impaired
organisms, resulting in bias.
Response: EPA has addressed
concerns regarding monitoring in the
final rule. For example, there is no
biological compliance monitoring for
pre-approved and streamlined
compliance alternatives in § 125.94
(c)(1) through (6) of today’s rule beyond
that required for the permit application,
and monitoring may be greatly reduced
for other facilities. EPA recognizes that
biological monitoring can be expensive,
which factored into EPA significantly
reducing those requirements. With
respect to intakes with low
impingement having difficulty
calculating impingement mortality,
facilities can demonstrate under
§ 125.94(c)(6) that the rate of
impingement is reduced due to intake
location or other technologies or factors.
Further, under § 125.94(c)(11) a facility
can demonstrate to the Director that
there is a de minimis rate of
impingement such that no additional
controls are warranted.
3. Reporting Requirements
Comments concerning reporting
requirements included the following:
• Commenters argue that permit
application deadlines are unreasonable,
especially given the limited number of
consultants available and that EPA
overestimates the number of facilities
that have completed these studies.
• Peer review requirements are overly
burdensome.
• Permit application requirements are
burdensome and EPA should revise the
proposed rules to remove, limit, or
streamline the numbers and types of
data, studies, and reports required.
Permit application requirements should
be reduced for smaller facilities with
intake flow in the 2–125 mgd range.
• The proposed rule requires the
§ 122.21(r) permit application materials
for each permit cycle, regardless of
whether the facility has been modified.
After the initial assessment of BTA in
the first permit cycle under the new
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48357
rule, the permittee should not be
required to do additional studies and
submit further documentation unless
there is a significant change in the
facility’s cooling system.
Response: EPA notes that facilities
have several flexibilities to address the
first point, including: (1) If a permit is
issued prior to July 14, 2018, the
Director can delay submission
requirements until such time that the
facility can complete them and (2) in
permit terms subsequent to the first
permit issued under today’s rule, the
Director can waive some or all of the
studies. With respect to peer review,
EPA disagrees that peer review is overly
burdensome. How to undertake a peer
review is widely known, generally
following a well-established process.
EPA notes that peer review is a normal
part of Agency activities, and that
commenters generally favor the
application of peer review to
environmental data and analyses. With
respect to the burden of the permit
application process and subsequent
permit cycles, EPA has reduced the
permit application requirements for the
final rule and streamlined biological
data collection to two years of data
collected as part of the permit
application (with the exception of the
few facilities expected to comply with
the impingement mortality standard
under the alternative at § 125.94(c)(7)).
In addition, entrainment studies are not
prescribed for facilities below 125 mgd,
although the Director may require the
facility to provide information beyond
the basic permit application
information. Also, the Director can
waive study requirements in permit
terms subsequent to the first permit
issued under today’s rule.
I. Endangered Species Act
Some commenters argued that it is
inappropriate to automatically treat T&E
species in a special category and
provide for special consideration for
them under the rule. These commenters
asserted that EPA has no basis for
incorporating ESA requirements into the
rule and addressing ESA species under
the NPDES program; they argued that
the ESA operates independently. Other
commenters argued that EPA has an
obligation under the ESA to consult
with the Services if cooling water intake
structures are likely to affect threatened
or endangered species.
Response: EPA has addressed T&E
species and critical habitat in this rule
to the extent necessary to ensure that
this action is consistent with both the
Endangered Species Act and CWA
section 316(b). Section 7 of the
Endangered Species Act states that
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‘‘each Federal agency shall, in
consultation with and with the
assistance of [the services] insure that
any action authorized, funded, or
carried out by [the agency] . . . is not
likely to jeopardize the continued
existence of any threatened or
endangered species or result in the
destruction or adverse modification of
[designated critical] habitat.’’ Under
CWA section 316(b), facilities subject to
NPDES permitting that have cooling
water intake structures are subject to
BTA to minimize adverse
environmental impacts. The final rule
requires NPDES 316(b) permittees to
identify all Federally-listed threatened
and endangered species and/or
designated critical habitat that are or
may be present in the action area. The
Director may reject an otherwise
available technology as a basis for
entrainment requirements if the Director
determines there are unacceptable
adverse impacts including
impingement, entrainment, or other
adverse effects to Federally-listed
threatened or endangered species or
designated critical habitat. EPA
consulted with the Services under the
ESA regarding this rule, and a summary
of the requirements related to
threatened or endangered species is
discussed in Section VIII.K of this
preamble.
VIII. Implementation
The following sections describe how
the Agency expects the final rule
requirements to be implemented. The
requirements of today’s final rule will
be applied to facilities through NPDES
permits issued by EPA or authorized
States under CWA section 402. A
facility may generally choose to
demonstrate compliance with the final
rule by demonstrating compliance for
the entire facility, or by demonstrating
compliance for each individual cooling
water intake structure. For example, a
facility with two intakes could
demonstrate flow reduction
commensurate with an existing closedcycle recirculating system for the first
intake, and demonstrate the intake
velocity at the screen face is less than
0.5 feet per second at the second intake.
Alternatively, the facility could
demonstrate that each of the facility’s
intakes are designed with an intake
velocity of less than 0.5 feet per second.
For details about the scope and
applicability of today’s final rule, see
Section I above.
Today’s final rule (as described in
Section IV above) establishes permit
application requirements for existing
facilities in §§ 122.21 and 125.95,
monitoring requirements in § 125.96,
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and record-keeping and reporting
requirements in § 125.97. All existing
facilities subject to the final rule that
withdraw from one or more cooling
water intake structures with a facilitywide DIF of greater than 2 mgd are
required to comply with the national
BTA impingement mortality standard at
§ 125.94(c) and national BTA
entrainment standard at § 125.94(d).
New units at existing facilities are
required to meet the national BTA
impingement mortality and entrainment
standards at § 125.94(e).
The final regulations also require the
Director to review permit application
materials submitted by each regulated
facility, establish impingement
mortality and entrainment requirements
in accordance with this rule, and issue
permits that include monitoring and
record-keeping requirements (§ 125.98).
The permit application requirements,
monitoring, record-keeping, and
reporting requirements for each of the
compliance alternatives are detailed in
the following sections.
A. When does the final rule become
effective and how are the requirements
sequenced in an orderly way?
This rule becomes effective on
October 14, 2014. The requirements in
this rule will then be implemented in
NPDES permits as the permits are
issued.
EPA has sought to address the
information and studies required in the
permit application associated with
ongoing permitting proceedings and
subsequent permitting after the first
implementation of this rule in a permit.
The EPA realizes that, in some cases, a
facility may already be in the middle of
a permit proceeding at the time of
promulgation of this rule, or the
Director may have already required
much of the same information be
submitted by the facility prior to
promulgation of today’s final rule.
Therefore the rule includes several
provisions that provide flexibility for
the permit application requirements.
First, in the case of any permit expiring
after July 14, 2018, under § 125.95 the
facility must submit permit application
materials required in § 122.21(r) with its
next NPDES permit renewal application.
Second, in the case of any permit
expiring prior to July 14, 2018, under
§ 125.95 a facility may request that the
Director waive the submission date of
the permit application requirements of
§ 122.21(r) based on a showing by the
owner or operator of the facility that it
could not develop the information for
which such a waiver is requested by the
time required for submission of the
permit renewal application. If the
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Director then chose to allow a delay for
the submittal of any of the information
requirements of § 122.21(r), the Director
would then determine the schedule for
submission of any delayed requirements
to be as soon as practicable. Third, in
the case of permit proceedings begun
prior to the effective date of today’s rule,
and issued prior to July 14, 2018, the
Director should proceed. See
§§ 125.95(a)(2) and 125.98(g). In such
circumstances where permit
proceedings have already begun prior to
the effective date of the rule, these
facilities will still need to submit the
appropriate permit application materials
found at § 122.21(r) permit applications
during their next application.
Additionally, while EPA expects that
many facilities will already comply with
§ 125.94(c), in some cases the facility
will need to choose one of the
compliance alternatives for IM in their
subsequent permit cycle.83 In particular,
EPA expects the facility would submit
the information required in § 122.21(r),
and the Director would make a
determination of BTA for entrainment
for that facility. Only after the Director
has established site-specific BTA
requirements for entrainment reduction
will the facility have to select the
compliance alternative on which it will
rely to meet the IM requirements of
today’s rule. The Director may either
amend the permit to include the IM
requirements or include them in a
subsequent permit if the Director
determines the proposed controls are
consistent with § 125.94(c). The Director
would establish a schedule
incorporating each of these sequential
actions. In addition, the rule allows the
Director the flexibility to grant a request
for a waiver of permit application
requirements in § 122.21(r)(6) in order
to accommodate the circumstances
described here. See §§ 122.21(r)(1)(i)
and 125.95(a). Fourth, in permit
applications subsequent to the first
permit issued under § 125.94(a)(1) with
all required information submitted
under § 122.21(r), the Director may
approve a request to reduce information
required, if conditions at the facility and
in the waterbody remain substantially
unchanged since the previous
application.84 See § 125.95(c). In
83 EPA’s costs do not assume zero compliance
costs for prior BTA determinations or permit
proceedings; all facilities were assessed costs on the
basis of technologies in place as described in
Section IX.
84 However, if conditions at the facility or in the
waterbody have in fact changed substantially since
the previous permit application, the Director will
revisit data collection needs and possibly the BTA
determination. The presence of any habitat
designated as critical, or species listed as threatened
or endangered after issuance of the current permit
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addition to all of these flexibilities,
today’s final rule gives advance notice
to affected facilities about permit
application materials and compliance
schedules.
While the final rule has both reduced
and streamlined the permit application
requirements, the EPA has determined
that for many facilities, it may take as
long as 39 months to plan, collect, and
compile the data and studies required to
be submitted with the permit
application (see Section C below for a
more detailed discussion of each
application element). The rule therefore
specifies that July 14, 2018 reflects the
date after which all permit application
requirements must be submitted as
specified at § 125.95. Specific permit
requirements may not need a full 39
months for completion, therefore the
Director may establish a schedule for
submission of the required permit
application elements. For example,
planning for required sampling may
take 6 months, inclusive of establishing
a sampling team, developing sampling
protocols, and acquiring necessary
equipment. Source water sampling and
characterization under § 122.21(r)(4)
includes two years’ worth of data.
Therefore, the EPA expects a minimum
of 30 months will be necessary for
submission of § 122.21(r)(4), assuming
the facility collects new data; this
timeframe could be shorter if the facility
chooses to use existing biological data.
Facilities choosing to comply with the
IM requirements through either
§ 125.94(c)(5) or (c)(6) must collect at
least 2 years data upon which the
facility would demonstrate that the
modified traveling screens or the
facility’s systems of technology have
been optimized to minimize
impingement mortality. Therefore, the
EPA expects a minimum of 30 months
will be necessary for submission of
§ 122.21(r)(6), assuming the facility
collects new data. Collection of
entrainment characterization data and
studies should occur in parallel with IM
studies and sampling. Thus, after the
initial 6 month planning period,
facilities that do not already have recent
entrainment characterization data will
collect a minimum of 2 years
entrainment data under § 122.21(r)(9).
Facilities are expected to need an
additional 9 months to assemble the
entrainment data and studies as
(whose range of habitat or designated critical habit
includes waters where a facility intake is located)
constitutes potential for a substantial change that
must be addressed by the owner/operator in
subsequent permit applications, unless the facility
received an exemption pursuant to 16 U.S.C.
1536(o) or a permit pursuant to 16 U.S.C. 1539(a)
or there is no reasonable expectation of take.
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required by § 122.21(r)(9) through (12).
Therefore, the EPA has concluded that
as many as 39 months will be necessary
for final submission of all requirements
under § 122.21(r). This time frame will
be adequate for facilities under 125 mgd
AIF; facilities over 125 mgd AIF also
need to have their 122.21(r)(10) to (12)
studies peer reviewed. The EPA expects
3 months will be needed for completion
of peer review requirements and
generation of a final report. However,
many of the facilities over 125 mgd AIF
were subject to the Phase II rule before
it was suspended (that is, all electric
generators over 125 mgd AIF are also
above 50 mgd DIF), and likely need less
time for up front planning and/or data
collection. Therefore, the EPA has
concluded that as many as 39 months
will be adequate for these facilities to
meet all requirements under § 122.21(r).
These time frames are consistent with
the timeline EPA included in the
proposed rule, and also matches the 31⁄2
years previously provided in the Phase
II rule for data collection and studies.
EPA notes the submission of the studies
required with the permit application
should not be confused with the
schedule for compliance with the BTA
requirements, as discussed below.
EPA has also sought to sequence the
impingement mortality controls so that
a facility may select and implement
these controls after the Director’s
determination of controls on
entrainment. With respect to
entrainment requirements, existing
facilities withdrawing greater than 125
mgd AIF must submit permit
application materials including the
studies prescribed in today’s final rule
at § 122.21(r)(9) through (13) in order to
help the Director determine what
entrainment controls to require at the
facility. Facilities at or below this
threshold must submit any information
requested by the Director. The Director
will then review these materials and
determine if further entrainment
controls are necessary. Once the BTA
requirements for entrainment have been
established, the facility would finalize
its chosen method for compliance with
impingement mortality under
§ 125.94(c). It would then be appropriate
for the Director to develop a schedule
whereby the facility would proceed to
design, construct, and implement its
technologies for impingement mortality,
for entrainment, or for both together
should the same technology addresses
both impacts. In this manner, the EPA
has harmonized the schedules for
meeting both impingement mortality
requirements and entrainment
requirements.
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48359
EPA further notes that approximately
2 percent of facilities have no controls
in place for impingement or
entrainment, or that a facility may
choose to install modified traveling
screens as part of its compliance
response. In these circumstances, not
only does EPA expect such decisions to
be delayed until after the Director has
determined the BTA requirements for
entrainment, EPA acknowledges that the
required optimization study of
§ 122.21(r)(6) cannot be completed until
after the technology has been designed
and constructed. EPA has provided the
Director the flexibility to establish an
appropriate schedule for submission of
such studies under § 125.95(a)(2).
After the effective date of the
regulation, when the first permit
implementing the new regulatory
requirements is issued, permitting
authorities typically consider the need
to allow facilities some period of time
to come into compliance. Under today’s
final rule, facilities will have to comply
with the impingement mortality and
entrainment requirements as soon as
practicable according to the schedule of
requirements set by the Director. The
concept of compliance schedules may
be found in the generally applicable
NPDES regulations at 40 CFR 122.47.
Because section 316(b) has no statutory
deadline for meeting the ‘‘best available
technology for minimizing adverse
environmental impact’’ standard, there
is no statutory bar to use of a
compliance schedule in appropriate
circumstances. The EPA recognizes that
it will take facilities time to upgrade
existing technologies, and install new
technologies, and that there are limits
on the number of facilities that can be
simultaneously offline to install control
technology and still supply goods and
services to orderly, functioning markets.
It is appropriate for the Director to take
this into account when establishing a
deadline for compliance. Any such
schedule would take into account
factors provided in § 125.98(c), such as
measures needed to maintain adequate
energy reliability by an electric
generating facility, or extenuating
circumstances such as scheduled
production outages at a manufacturing
facility.
There may be overlap in the
technologies used to comply with
impingement mortality and entrainment
standards, which could result in the
facility needing more time to comply
with the impingement mortality
requirements. For example, if a facility
plans to retrofit to wet cooling towers to
reduce entrainment, the wet cooling
towers technology will also comply
with the impingement mortality
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standard under § 125.94(c)(1). As such,
the Director would schedule compliance
with the impingement mortality
requirements to match the schedule for
entrainment requirements. Further, EPA
recognizes that in some cases, especially
where additional entrainment control
technologies are required, the facility
could require a lengthy period of time
to design, construct, and implement
control technologies. Therefore, the rule
authorizes the Director, at § 125.94(h), to
establish interim BTA requirements in a
facility’s schedule of requirements, for
impingement mortality, entrainment, or
both, where necessary on a site-specific
basis.
In contrast to the proposed rule,
today’s final rule does not include a
requirement for compliance with the
impingement mortality standards within
eight years. EPA expects, however, that
the final rule will generally result in
compliance within a similar period of
time. The combination of permit
issuance, the Director’s determination of
BTA for entrainment, and the
subsequent schedule of requirements for
impingement mortality will result in
some facilities, particularly those
already in a permitting proceeding, or
with controls similar to what the new
permit requires, being in compliance
within a very short time frame. Some
facilities that are not now in a
permitting proceeding may need as
much as three and a half years to fully
complete their studies and data
collection, and depending on the types
of control selected, may need additional
time to design, construct, and
implement their technologies. In some
cases, the Director’s determination for
entrainment may result in a facility
meeting both the impingement mortality
and entrainment BTA requirements in
fewer than eight years. All facilities will
be required to follow their schedule as
determined by the Director.
EPA notes that there is a three-year
period after the effective date of this
rule before Directors will be receiving
permit applications containing the full
set of application requirements in
§ 122.21(r). EPA is aware that currently
many NPDES permits for facilities with
a CWIS have been administratively
continued. For these administratively
continued permits, the Director should
consider if any permits would need
additional updated information to
support the permit issuance decision.
The Director may, under 40 CFR
122.21(g)(13), request additional
information including any permit
application requirements in § 122.21(r).
B. How does the final rule reduce
biological monitoring requirements?
The EPA has streamlined the
biological data and study requirements
for both impingement mortality and
entrainment into one comprehensive set
of permit application requirements and
provisions. The Source Water Baseline
Biological Characterization Data,
impingement technology performance
optimization study, Entrainment
Characterization Study, and where
applicable, entrainment performance
studies are all conducted within the
same two year time frame prior to
submission of an application for a
permit. Further, as shown in Exhibit
VIII–1, EPA’s analysis indicates that
more than 99 percent of existing
facilities will choose an alternative for
impingement mortality that does not
require continual biological compliance
monitoring. Thus any required
biological data consists solely of that
required to be collected to meet the
permit application requirements. See
Section F for further discussion.
EXHIBIT VIII–1—EPA’S PROJECTIONS OF HOW FACILITIES WILL CHOOSE TO COMPLY WITH THE IM REQUIREMENTS
Intake count a
IM compliance alternative
Percent of total
intakes
Closed-cycle recirculating system c .................................................................................................................
Design velocity .................................................................................................................................................
Actual velocity ..................................................................................................................................................
Existing offshore velocity cap c ........................................................................................................................
Modified traveling screens ...............................................................................................................................
System of technologies ...................................................................................................................................
Impingement Mortality Performance Standard ................................................................................................
De minimis .......................................................................................................................................................
307
362
226
10
488
278
12
**b
18
21
13
1
29
17
0.7
**b
Total ..........................................................................................................................................................
1,682
100
a EPA’s
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compliance costs for each facility are based on the sum of the facility’s intake level compliance costs. Some facilities have more than
one intake. See IX.B.2 for more information on the use of the survey data.
b EPA has not estimated which facilities will be determined to be ‘‘de minimis’’ under § 125.94(c)(11) by the Director. For purposes of this analysis, EPA has assumed no facilities fall under the ‘‘de minimis’’ provision.
c EPA is not projecting facilities will install closed-cycle recirculating systems or offshore velocity caps to comply with the IM requirements, rather these facilities already have these technologies installed.
By merging the data collection and
studies into the permit application
requirements, EPA expects
approximately half of all affected
facilities will be able to complete the
initial permit application within a few
months.85 In the case of a facility that
was not previously required to collect
data and conduct studies, it may take up
to 45 months lead time for a permit to
85 For example, facilities that were subject to
Phase II will have already collected most of the data
and information as part of the Phase II rule issued
February 16, 2004 and implemented up until
suspension of that rule on July 9, 2007.
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be applied for, and additional time for
the permit to be issued. Although the
permit application times may be longer
for the first permit cycle after this rule,
this is a tradeoff for the flexible IM
requirements.
Once the permit is issued, EPA
anticipates very few, if any, facilities
will be required to conduct ongoing
biological compliance monitoring
related to impingement controls; for
more details, see Section F and Exhibit
VIII–4. Instead, for each subsequent
permit cycle each facility would either
(1) demonstrate to the Director that
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facility operations and waterbody
characteristics are substantially
unchanged, or (2) update any biological
characterization data. Anticipating that
NPDES permits are renewed when they
expire, the update to the facility’s
biological characterization and any
corresponding biological performance
evaluations would be conducted
approximately every five years.
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C. What information will I be required
to submit to the director when I apply
for my NPDES permit?
Today’s final rule establishes, at
§ 122.21(r), permit application
requirements for all facilities subject to
the requirements of § 125.94. Each
permit application element at
§ 122.21(r) is described in more detail
below. The final rule requires existing
facilities to prepare and submit some of
the same information as previously
required for new facilities subject to
subparts I or N (i.e., Phase I new power
plants and manufacturers or Phase III
new offshore oil and gas facilities),
namely the information at § 122.21(r)(2)
through (4). In addition, the rule adds
subparagraphs for existing facilities to
the regulations at § 122.21(r)(4), as well
as (r)(5) through (13) to include the
information and study requirements
specific to existing facilities.
In the case of a new unit constructed
at an existing facility, EPA expects
much of the information submitted by
the facility in previous permit
applications would still be current and
relevant. Therefore, EPA has reduced
the permit application requirements to
those necessary to update the facility’s
previously submitted information under
§ 122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6),
(r)(7) and (r)(8). In other words, the new
unit permit application is intended to
describe the changes to these documents
as a result of the addition of the new
unit. In addition, the facility must
submit information specific to the new
unit’s chosen compliance method at
§ 122.21(r)(14).
All existing facilities are required to
complete and submit permit application
studies to describe the source waterbody
(§ 122.21(r)(2)), cooling water intake
structures (§ 122.21(r)(3)), characterize
the biological community in the vicinity
of the cooling water intake structure
(§ 122.21(r)(4)), cooling water system
(§ 122.21(r)(5)), and operational status
(§ 122.21(r)(8)). Facilities that already
use a closed-cycle recirculating system
must still submit this information in
their permit application. The Director
will need, for instance, the biological
sampling data in § 122.21(r)(4) to serve
as a record basis for their BTA
determination in the permit.
Furthermore, in Phase I, new facilities
were required to be commensurate with
closed-cycle, to meet the 0.5 fps velocity
limit, and to collect two years’ worth of
biological data to establish a record
basis for impacts at the facility. In
addition, the data collected here is
important to inform an owner/operator’s
evaluation of whether and if so what
threatened or endangered species or
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designated critical habitat are or may be
present in the action area.
All existing facilities must describe
their existing impingement and
entrainment technologies or operational
measures and a summary of their
performance, including but not limited
to reductions in impingement mortality
and entrainment due to intake location
and reductions in total water
withdrawals and usage
(§ 122.21(r)(5)(iii)). All facilities must
also complete and submit their chosen
compliance method for impingement
mortality (§ 122.21(r)(6)). This includes
identification of any requests for BTA
determinations under § 125.94(c)(11) de
minimis rates of impingement or
§ 125.94(c)(12) low capacity utilization
power generation units. In addition, the
owner or operator of an existing facility
must submit the information required
under paragraph (r)(6) of § 122.21 for the
alternative specified at 40 CFR 125.94(c)
that the owner or operator of an existing
facility chooses to rely on as its method
of compliance with the BTA Standards
for Impingement Mortality specified in
40 CFR 125.94. Because the IM
compliance options § 125.94(c)(1), (2),
and (4) include pre-approved
technologies, the owner or operator of a
facility choosing one of these three
options to comply with the IM
requirements does not have either
biological studies or biological
compliance monitoring related to the
applicable IM standard. Compliance
options § 125.94(c)(3), (5), and (6) are
streamlined options. For two of these
three options, the permit application
element § 122.21(r)(6) further requires a
site-specific study for the purposes of
technology optimization to minimize
impingement mortality, including
additional biological data collection that
in most cases would occur during the
same two year period of data collection
for the Source Water Baseline Biological
Characterization Data required under
§ 122.21(r)(4) to characterize the
baseline, and a demonstration that the
operation of specific technologies at
your facility have been optimized to
minimize impingement mortality. The
owner or operator of a facility choosing
one of these three options to comply
with the IM requirements do not have
ongoing biological compliance
monitoring as part of the applicable IM
standard. As discussed in the previous
section, the Director can establish a
schedule 86 for submitting the
optimization study if the facility first
86 The Director could, for example, issue a permit
before the optimization study has been completed,
and include a schedule for submission of the
optimization study in the newly issued permit.
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needs to install additional technology
for IM.
All existing facilities may submit to
the Director additional permit
application studies to describe
biological survival studies that address
technology efficacy and other studies on
entrainment at the facility
(§ 122.21(r)(7)). This requirement does
not impose any new or additional study
requirements. This permit application
element includes the submission of
existing studies conducted by or
relevant to the facility. Further, the
burden of this requirement has been
reduced since proposal by only referring
to studies of entrainment.
All existing facilities that withdraw
more than 125 mgd AIF 87 of water for
cooling purposes must also submit
additional information to characterize
entrainment and assess the costs and
benefits of installing various potential
technological and operational controls.
These facilities are required to submit to
the Director additional permit
application studies including
§ 122.21(r)(9), Entrainment
Characterization Study; § 122.21(r)(10),
Comprehensive Technical Feasibility
and Cost Evaluation Study;
§ 122.21(r)(11), Benefits Valuation
Study; and § 122.21(r)(12), Non-water
Quality Environmental and Other
Impacts Assessment. As with the
biological data collection required of
some facilities under § 122.21(r)(6), EPA
expects biological data collection for the
purposes of entrainment
characterization to occur during the
same two year period of biological data
collection required under § 122.21(r)(4).
EPA notes that facilities below the 125
mgd threshold are not automatically
exempt from entrainment requirements.
The Director may determine that
entrainment studies may be required or
that entrainment controls may need to
be installed for any cooling water intake
structure. See the Section VI of this
preamble for more information.
The final rule further requires the
studies at § 122.21(r)(10) through (r)(12)
be subject to an external peer review as
required at § 122.21(r)(13); a separate
peer review is not required for
§ 122.21(r)(9), as it is implicitly
87 AIF is calculated from the most recent three
years’ data or five years in subsequent permit
cycles. As such, AIF is a variable number. It is
possible that a facility could transition from below
125 mgd to above 125 mgd if the facility
significantly increases withdrawal of cooling water,
such as if the facility increases capacity or if it adds
a new unit. In these cases, the facility will then be
required to conduct the studies and meet the permit
application requirements at § 122.21(r)(9)–(13). This
consequence is intended to incentivize facilities to
reduce or reuse water for cooling, thereby avoiding
the need for additional permit application studies.
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reviewed via its use in § 122.21(r)(10)
and (r)(11). EPA expects the facility
would first notify the Director of the
peer review in advance. For example,
facilities could identify their peer
reviewers near the beginning of their
biological data collection for the
required Entrainment Characterization
Study at § 122.21(r)(9). Since a facility’s
permit application requires two years of
biological data, EPA expects this is more
than enough time for the facility to
identify peer reviewers, and for the
Director to disapprove of a peer
reviewer or require additional
reviewers. Further, this provides the
Director ample opportunity to confer
with those agencies with responsibility
for fish and wildlife potentially affected
by the cooling water intake structure,
including other Federal, State, and
Tribal agencies. Similarly, in the case of
permits for electric generating utilities,
EPA expects this is enough time to
confer with state co-regulators such as
public utility commissions, or
independent system operators whose
responsibility it is to ensure reliability
of the electricity grid. To minimize the
overall time required to conduct a peer
review, all studies conducted by the
facility under § 122.21(r)(10) through
(12) will be subject to peer review at the
same time, in a holistic fashion.
Additional guidance on conducting peer
review is available on EPA’s Peer
Review Program Web site at
www.epa.gov/peerreview. EPA expects
the Director will use the permit
application information, studies, and
peer review results to assess the
impingement and entrainment impacts
of the cooling water intake structure and
determine appropriate technological or
operational controls, or both, as
necessary.
While all facilities must submit
§ 122.21(r)(2) through (6) and (r)(8) and,
where applicable (r)(7), EPA has
reduced the permit application
requirements based on the facility’s
chosen compliance method for
impingement mortality. Exhibits VIII–2
and VIII–3 below illustrate the permit
application requirements as they relate
to an existing facility’s chosen
compliance methods. EPA expects
permit application requirements for new
units will consist of updates to
previously submitted permit
applications for the rest of the existing
facility at which the new unit is being
constructed.
For a new unit at an existing facility,
EPA expects that only the appropriate
and relevant updates to the existing
facility’s permit application materials
are required (in addition to newly
developed materials required at
§ 122.21(r)(14)). For example, the
facility would update § 122.21(r)(3) to
indicate the addition of the new unit,
any new intakes associated with the
new unit, expected operational
characteristics, etc. For the owner or
operator of a new unit and with an AIF
greater than 125 mgd, the permit
application materials under
§ 122.21(r)(9)–(13) are required. In those
circumstances where data specific to the
facility indicate that compliance with
the requirements of paragraphs (e)(1) or
(2) of § 125.94 for a new unit would
result in compliance costs wholly out of
proportion to the costs EPA considered
in establishing the requirements at
issue, or would result in significant
adverse impacts on local air quality,
significant adverse impacts on local
water resources other than impingement
or entrainment, or significant adverse
impacts on local energy markets, the
rule requires the submission of such
data as part of § 122.21(r)(14). EPA notes
that when a new unit increases an
existing facility’s AIF greater than 125
mgd, the permit application
requirements also include § 122.21(r)(9)
through (13). Further, facilities may
need several years to complete studies
and data collection and, depending on
the types of controls selected, may need
additional time to design and construct
their technology. Thus while the rule
requires the permit application for a
new unit at least 180 days prior to
commencing cooling water withdrawals,
it is in the facility’s best interest to
submit this data well in advance in
order to prevent any delays in the
Director’s review of permit application
materials and subsequent issuance or
renewal of the facility’s NPDES permit.
For the owner or operator of a new unit
opting to comply via § 125.94(e)(2) the
application materials required under
§ 122.21(r)(14) must demonstrate
entrainment reductions equivalent to 90
percent or greater of the reduction that
could be achieved through compliance
with § 125.94(e)(1).
EXHIBIT VIII–2—SUMMARY OF PERMIT APPLICATION REQUIREMENTS FOR EXISTING FACILITIES ACCORDING TO EXISTING
FACILITIES’ CHOSEN METHOD FOR COMPLIANCE WITH IMPINGEMENT MORTALITY STANDARD
§ 122.21 subsection
Compliance approach to
impingement
(r)(2)
Closed-cycle recirculating system ....
Design intake velocity ......................
Actual intake velocity .......................
Existing offshore velocity cap ..........
Modified traveling screens ...............
Combination of technologies ............
Impingement Mortality Performance
Standard.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
..........
..........
..........
..........
..........
..........
..........
(r)(3)
Yes
Yes
Yes
Yes
Yes
Yes
Yes
..........
..........
..........
..........
..........
..........
..........
(r)(4)
Yes
Yes
Yes
Yes
Yes
Yes
Yes
..........
..........
..........
..........
..........
..........
..........
(r)(5)
Yes
Yes
Yes
Yes
Yes
Yes
Yes
(r)(6)
..........
..........
..........
..........
..........
..........
..........
Yes
Yes
Yes
Yes
Yes
Yes
Yes
..........
..........
..........
..........
..........
..........
..........
(r)(6)(i)
(r)(6)(ii)
No ............
No ............
No ............
No ............
Yes ..........
No ............
Maybe ......
No ............
No ............
No ............
No ............
No ............
Yes ..........
Maybe ......
(r)(8)
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
EXHIBIT VIII–3—SUMMARY OF PERMIT APPLICATION REQUIREMENTS FOR EXISTING FACILITIES: ENTRAINMENT
§ 122.21 subsection
emcdonald on DSK67QTVN1PROD with RULES2
Compliance approach to entrainment
(r)(7)
Closed-cycle recirculating system ..........................
Director BTA entrainment determination: facility
AIF above 125 mgd.
Director BTA entrainment determination: facility
AIF 125 mgd or below.
a Director
(r)(8)
(r)(9)
(r)(10)
(r)(11)
(r)(12)
Yes ..........
Yes ..........
Yes ..........
Yes ..........
Var.a ........
Yes ..........
Var.a ........
Yes ..........
Var.a ........
Yes ..........
Var.a ........
Yes ..........
Var.a
Yes.
Maybe ......
Maybe ......
Maybe ......
Maybe ......
Maybe ......
Maybe ......
Maybe.
has the discretion to waive.
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In addition, the Director may set
information requirements not included
in today’s rule to aid in best
professional judgment permitting, such
as will occur for entrainment at facilities
below 125 mgd AIF, and for
impingement and entrainment at
existing facilities below 2 mgd DIF,
neither of which are required by today’s
rule to submit items in § 122.21(r)(9)
through (r)(13). The Director may find
aspects of the permit application
requirements to be relevant in such
situations. A summary of each permit
application requirement follows.88
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1. § 122.21(r)(2) Source Water Physical
Data
This requirement is unchanged from
the Phase I rule and the 2004 Phase II
rule. The facility is required to submit
data to characterize the facility and
evaluate the type of waterbody
potentially affected by the cooling water
intake structure. The applicant is
required to submit a narrative
description and scaled drawings
showing the physical configuration of
all source water bodies used by the
facility, including areal dimensions,
depths, salinity and temperature
regimes, and other documentation that
supports the determination of the
waterbody type where each cooling
water intake structure is located;
identification and characterization of
the source waterbody’s hydrological and
geomorphological features, and the
methods used to conduct any physical
studies to determine the intake’s area of
influence in the waterbody and the
results of such studies; and locational
maps. The Director uses this
information to evaluate the
appropriateness of any design or
technologies proposed by the applicant.
2. § 122.21(r)(3) Cooling Water Intake
Structure Data
This requirement is unchanged from
the Phase I rule and the 2004 Phase II
rule. This data is used to characterize
the cooling water intake structure and
evaluate the potential for impingement
and entrainment of aquatic organisms.
Information on the design of the intake
structure and its location in the water
column allows evaluation of which
species and life stages might be subject
to impingement and entrainment. A
diagram of the facility’s water balance is
used to identify the proportion of intake
water used for cooling, make-up, and
process water, as well as any cooling
88 Where a closed-cycle recirculating system
withdraws greater than 125 mgd AIF, the
information required in § 122.21(r)(9) to (13) is
required, unless the Director reduces or waives
some or all of the information required.
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water supplied by alternate sources,
such as reuse of another facility’s
effluent. The water balance diagram also
provides a picture of the total flow in
and out of the facility, and is used to
evaluate gray water, waste water, and
other reuses in the facility. The
applicant is required to submit a
narrative description of the
configuration of each of cooling water
intake structure and where it is in the
waterbody and in the water column;
latitude and longitude in degrees,
minutes, and seconds for each cooling
water intake structure; a narrative
description of the operation of each of
cooling water intake structure,
including design intake flows, daily
hours of operation, number of days of
the year in operation and seasonal
changes, if applicable; a flow
distribution and water balance diagram
that includes all sources of water to the
facility, recirculating flows, and
discharges; and engineering drawings of
the cooling water intake structure.
3. § 122.21(r)(4) Source Water Baseline
Biological Characterization Data
This information is similar to that
required in the Phase I rule. Existing
facilities are required to characterize the
biological community in the vicinity of
the cooling water intake structure and to
characterize the operation of the cooling
water intake structures. This supporting
information must include existing data
if they are available. However, the
facility may supplement the data using
newly conducted field studies if it
chooses to do so. The information the
applicant must submit includes
identification of data that are not
available and efforts made to identify
sources of the data; a list of species (or
relevant taxa) for all life stages and their
relative abundance in the vicinity of the
cooling water intake structure; and
identification of the species and life
stages that would be most susceptible to
impingement and entrainment. All
species should be evaluated, including
the forage base and those species most
important in terms of significance to
commercial and recreational fisheries.
In addition, the applicant must identify
and evaluate the primary period of
reproduction, larval recruitment, and
period of peak abundance for relevant
taxa; data representative of the seasonal
and daily activities (e.g., feeding and
water column migration) of biological
organisms in the vicinity of the cooling
water intake structure. In addition,
instead of the information required at
§ 122.21(r)(4)(vi), the owner or operator
of an existing facility or new unit at an
existing facility must identify all
Federally-listed threatened and
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48363
endangered species and/or designated
critical habitat that are or may be
present in the action area pursuant to
§ 125.95(f). The action area can
generally be considered the area in the
vicinity of impingement and
entrainment at the cooling water intake
structure. The applicant must also
include documentation of any public
participation or coordination with
Federal or State agencies undertaken. If
the applicant supplements the
information with data collected using
field studies, supporting documentation
for the Source Water Baseline Biological
Characterization Data must include a
description of all methods and quality
assurance procedures for sampling, and
data analysis including a description of
the study area; taxonomic identification
to the lowest taxon possible of sampled
and evaluated biological assemblages
(including all life stages of fish and
shellfish); and sampling and data
analysis methods. The sampling or data
analysis (or both) methods used must be
appropriate for a quantitative survey
and based on consideration of methods
used in other biological studies
performed in the same source
waterbody. The study area should
include, at a minimum, the area of
influence of the cooling water intake
structure. The applicant may also
identify protective measures and
stabilization activities that have been
implemented and describe how these
measures and activities affected the
baseline water condition in the vicinity
of the intake.
EPA is adding § 122.21(r)(4)(ix), (x)
and (xi) to the Source Water Baseline
Biological Characterization Data for
existing facilities. Item (ix) simply
defines the term ‘‘Source Water Baseline
Biological Characterization Data.’’ EPA
is requiring item (xi), identification of
fragile species found at the facility. EPA
notes that in contrast to the proposed
rule, the permit application does not
require submission of the proposed
‘‘species of concern.’’ EPA found that
the term ‘‘species of concern’’ was too
similar to terms as used in the context
of T&E (threatened and endangered)
species, and may cause confusion over
existing Services or State requirements
for such species. Further, despite EPA’s
efforts to distinguish between species of
concern and RIS (representative
indicator species) in the NODA (77 FR
34325, June 11, 2011), EPA found that
many commenters were still confused
by the language. Instead, EPA is
adopting the term ‘‘fragile species’’ and
using the term exactly as it is used with
the impingement mortality data and
criteria used in calculating the
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impingement mortality standards of the
rule. The definition for ‘‘fragile species’’
at § 125.92 is a species of fish or
shellfish that has an impingement
survival rate of less than 30 percent
even when the BTA technology of
modified traveling screens are in
operation. EPA has identified fragile
species in the Chapter 11 of the TDD for
the final rule. Further, EPA is providing
examples, in the list of 14 specific
species in today’s regulatory definition
as a non-exclusive list. This list
includes only those species specifically
analyzed as part of the performance
standards development. If a permit
applicant can sufficiently demonstrate a
record basis, the permitting Director
may deem a particular species to be a
fragile species for the purpose of a
particular permit.
American shad (Clupeidae), bay
anchovy (Engraulidae), and blueback
herring (Clupeidae) belong to families
that are specifically identified in the
TDD Chapter 11 as examples of species
that may be, at the Director’s discretion,
excluded from performance standards
on the basis of impingement survival.
As another example, threadfin shad (a
species not specifically identified as
fragile in today’s rule) are prone to fall
die-off when the water temperature
reaches 42 degrees. The EPA does not
intend for such naturally occurring
mortality to be counted against a
facility’s performance in reducing
impingement mortality. EPA is aware of
limited success in flow reduction and
behavioral deterrent systems in
protecting fragile species. However,
there are no demonstrated and available
technologies for industry as a whole to
address fragile species. EPA has long
recognized these species as having low
survival rates under the best of
conditions, and established different
mechanisms to address these in today’s
final rule. Today’s BTA for
impingement mortality allows the
Director to establish site-specific
controls under § 125.94(c)(9) to address
fragile species.
EPA notes the change in terminology
to ‘‘fragile species’’ eliminates the
proposed rule burden on States to
review and approve each facility’s sitespecific species of concern, and
eliminates confusion over any T&E or
RIS that may be subject to more
stringent requirements under other
Federal, State, and Tribal law. Further,
use of ‘‘fragile species’’ instead of
‘‘species of concern’’ greatly increases
the transparency of the Agency’s
impingement mortality performance
standards.
In addition, EPA notes that
§ 122.21(r)(4)(vi) requires the applicant
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to submit information on all threatened
and endangered species, not just those
T&E species that are fish or shellfish.
Examples of T&E species that are not
fish or shellfish are corals, sea turtles
and marine mammals.
4. § 122.21(r)(5) Cooling Water System
Data
The Director uses this data in
determining the appropriate standards
that would be applied to the facility.
Facilities are able to use this
information, along with the water
balance diagram required by
§ 122.21(r)(3), to demonstrate the extent
to which flow reductions have already
been achieved at the facility level. The
applicant must provide the following
information for each cooling water
intake structure they use: A narrative
description of the operation of the
cooling water system and its
relationship to cooling water intake
structures (including the use of helper
towers); the proportion of the design
intake flow that is used in the system
including a distribution of water used
for contact cooling, non-contact cooling,
and process uses; a distribution of water
reuse (to include cooling water reused
as process water, process water reused
for cooling, and the use of gray water for
cooling); description of reductions in
total water withdrawals including
cooling water intake flow reductions
already achieved through minimized
process water withdrawals; description
of any cooling water that is used in a
manufacturing process either before or
after it is used for cooling, including
other recycled process water flows; the
proportion of the source waterbody
withdrawn (monthly); the number of
days of the year the cooling water
system is in operation and seasonal
changes in the operation of the system,
if applicable. The applicant must also
submit a description of existing
impingement and entrainment
technologies or operational measures
and a summary of their performance,
including for example reductions in
entrainment due to intake location and
reductions in total water withdrawals
and usage, and efficiencies in energy
production for each producing unit that
result in the use of less cooling water,
including for example combined cycle
and cogeneration. For example, the
applicant may provide comparative
density data for the intake to
demonstrate the extent to which
location of the intake has reduced
adverse environmental impact. The
additional information at
§ 122.21(r)(5)(iii) is specific to those
process units that use cooling water for
purposes other than power generation or
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steam, and where the owner or operator
intends to comply with the BTA for IM
through either the use of flow reduction
measures or the reuse of other water for
cooling purposes.
5. § 122.21(r)(6) Chosen Method of
Compliance With Impingement
Mortality Standard
Today’s final rule is flexible in
providing seven different compliance
options for meeting impingement
mortality requirements. Under
§ 122.21(r)(6), the facility must identify
its approach to meet the impingement
mortality standards. The facility must
identify the compliance method for the
entire facility or, alternatively, the
compliance method for each cooling
water intake structure at the facility.
Finding it to be unnecessary because the
facility will already have a set of
requirements to meet based on its
chosen method of compliance, EPA has
eliminated the proposed requirement for
a separate impingement mortality
reduction plan. In addition, monitoring
and studies conducted under the
reduction plan is no longer required by
all facilities. Instead today’s final rule
specifies data collection requirements
only in those instances where the
facility must demonstrate a particular
performance outcome as described
below.
Facilities choosing to comply with
§ 125.94(c) by operating a modified
traveling screen (under § 125.94(c)(5))
must submit an impingement
technology performance optimization
study under § 122.21(r)(6)(i). The sitespecific study must demonstrate the
modified traveling screen as defined at
§ 125.92 has been optimized to
minimize impingement mortality. The
study must include a minimum of two
years of biological data collection. This
time frame is consistent with the
requirements at paragraph (r)(4)(iv) of
§ 122.21 to identify primary periods of
reproduction and peak abundance, as
well as § 122.21(r)(4)(v) to provide data
representative of the seasonal activities,
both of which would require at least one
year worth of data collection. EPA
expects facilities will either use existing
biological data already required under
§ 122.21(r)(4) to complete their sitespecific impingement studies, modify
their biological data collections under
§ 122.21(r)(4) to be comprehensive and
inclusive, use existing performance
studies, or collect supplemental data
necessary to make their demonstrations.
If a facility is using previously collected
data or studies that are more than 10
years old, the facility must demonstrate
the data is still relevant and
representative of the facility. If a facility
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intends to return organisms to a
different waterbody from which they are
withdrawn, a request for consideration
of this must be made to the Director
under § 122.21(r)(6).
The rule specifies sampling at least
monthly during the two year data
collection effort of the impingement
technology performance optimization
study, and requires documentation of
methods used including counting of
moribund organisms, latent mortality,
holding times, and counting of
entrapment. The Director may establish
more frequent collection, as well as
specify sampling methods and
additional protocols to be used. If the
facility intends to return fish and
shellfish to a different waterbody than
the source waterbody that is used to
withdraw cooling water, EPA expects
this would be identified as part of
§ 122.21(r)(6)(i). While EPA does not
expect this situation occurs very
frequently, the permit application
information at § 122.21(r)(6)(i) along
with (r)(4) would provide the Director
the information needed to determine
whether such a return location is
appropriate.89 If the site-specific
impingement study demonstrates the
modified traveling screen (as defined at
§ 125.92) has been optimized to
minimize impingement mortality, the
Director may then determine the
modified traveling screen is the best
technology available for impingement
mortality at the site. The Director would
then include permit conditions that
ensure the technology will perform as
demonstrated. If the Director determines
that additional data is required to
identify permit operating conditions,
the Director has the authority to
establish such requirements under
§ 125.95(d). Note that the EPA envisions
the study will function to optimize
performance, which is not the same as
requiring a study merely demonstrating
a specific numeric level of performance
for impingement mortality has been or
can be achieved. For the majority of
facilities, EPA expects annual
performance using modified traveling
screens will exceed the Agency’s
calculated average annual performance
standards for impingement mortality.
Several examples of modified traveling
screens in EPA’s record show annual
performance for impingement mortality
89 For example, the St. Lucie generating facility
determined that this arrangement was not
appropriate at their site; see DCN 10–6515. The
Brunswick facility, has a fish return flume that goes
to a tributary rather than the intake canal or the
river. This arrangement places the aquatic
organisms away from the intake canal and in a more
gentle water environment to increase the organisms’
survival; see DCN 10–6569.
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that is superior to the impingement
mortality performance standard (e.g.,
lower than 10 percent).
Similarly, facilities choosing to
comply with § 125.94(c) by operating a
system of technologies (under
§ 125.94(c)(6)) that will achieve the
impingement mortality standard must
submit a impingement technology
performance optimization study under
§ 122.21(r)(6)(ii). The site-specific study
must provide a description of the
technologies, operational measures, or
sampling approaches or any
combination of them to be used to meet
the BTA for impingement mortality. The
study must demonstrate that the system
of technologies has been optimized to
minimize impingement mortality. EPA
notes the ‘‘system’’ may consist of one
or more technologies already in place,
or may be combined with newly
installed technologies. Further, the
study must include a minimum of two
years of biological data collection, as
just described.
The EPA is aware that it is possible
for a facility to reduce its rate of
impingement, but the same number of
impinged fish die. This has the
unintended consequence of increasing
the percent impingement mortality
calculated by the facility. EPA does not
intend for such facilities to be penalized
for significant reductions in
impingement rates obtained through
existing technologies and practices in
place. Therefore, one difference in the
required study for the system of
technologies compliance alternative (as
compared to the study required for
modified traveling screens) is an
understanding that operational
measures, best management practices,
intake location, and other technologies
do not always lend themselves to direct
impingement mortality measurements
or data collection. Thus the study can
include flow measurements and
monitoring the rate of impingement (as
opposed to directly monitoring
mortality) as described below.
If the facility chooses to rely on credit
for reductions in the rate of
impingement already achieved, the
impingement technology performance
optimization study must document the
reductions to be used as credit. The
estimated reductions in impingement
must be based on a comparison of the
facility to a once-through cooling system
with a traveling screen located on the
shoreline of the source waterbody. For
example, a facility with an offshore
intake, an intake canal, or an intake
located immediately downstream of a
dam in a cold water stream, could
demonstrate the population of fish at
the intake is lower in these areas,
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resulting in lower rates of impingement.
This provision is intended to allow a
facility that conducted or completed a
baseline characterization under the
Phase II rule to use that same
information as part of their
demonstration under this rule.
As discussed in Section VI, EPA has
identified flow reduction as one of the
best ways to reduce both impingement
and entrainment. Today’s final rule, as
part of the system of technologies
compliance option at § 125.94(c)(6),
provides the owner or operator of a
facility the opportunity to demonstrate
flow reduction as part of meeting the IM
standards. If the facility chooses flow
reduction to reduce impingement, the
study at § 122.21(r)(6)(ii) must include
two years of intake flows measured
daily. This flow information plus the
data collected under § 122.21(r)(4)(iv)
would be used to document how the
flow reduction results in a reduced rate
of impingement, as well as documenting
the extent to which such reductions are
seasonal or intermittent. Many pumps
operate at only one speed, which
doesn’t allow the facility to adjust its
intake flow to changing conditions. As
a potential application of § 125.94(c)(6),
EPA is aware of a manufacturing facility
that installed multiple pumps of
different sizes, and the operator only
utilized those pumps that were
necessary to obtain the exact amount of
cooling water needed. As another
example, variable speed drives offer
many facilities an opportunity to reduce
their intake flows by as much as 10
percent. Variable speed drives are
available at all facilities, and EPA
expects variable speed drives will be
considered when replacing existing
recirculating pumps; however, EPA also
acknowledges variable speed drives may
not be practical in all cases.
Nevertheless, EPA expects variable
speed drives will be considered by the
Director when establishing entrainment
requirements under today’s final rule.
EPA provided an example of how a
facility would receive credit for existing
technologies in the NODA (see 77 FR
34322, June 11, 2011). An additional
sample calculation that includes flow
reduction is provided later in this
section.
The study must identify each of these
contributing components, and requires
the calculation of the impingement
mortality reflecting each component of
the system. The impingement
technology performance optimization
study must demonstrate the system of
technologies has been optimized to
minimize impingement mortality. In
addition, the study must document the
percent impingement mortality
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reflecting optimized operation of the
total system of technologies, operational
measures, and best management
practices at § 122.21(r)(6)(ii)(D). The
Director may then determine the system
of technologies is the best technology
available for impingement reduction at
the site. The Director would then
include permit conditions that ensure
the technology will perform as
demonstrated.
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6. § 122.21(r)(7) Entrainment
Performance Studies
EPA proposed that a facility must
submit all previously conducted
performance studies, but has revised
this provision in the final rule to
include only entrainment related
studies. Impingement performance
studies, where relevant, are already part
of the permit application at
§ 122.21(r)(6). This avoids imposing a
requirement on all facilities to submit
previous impingement studies that may
be unnecessary, and eliminates a burden
on the Director to review all such
studies, many of which may no longer
be relevant.90 Under today’s final rule,
the applicant must submit a description
of any biological survival studies
conducted at the facility and a summary
of any conclusions or results, including
the following: site-specific studies
addressing technology efficacy, throughfacility entrainment survival
(distinguished for eggs and larvae),
entrainment analyses, or studies
conducted at other locations including a
justification as to why the data are
relevant and representative of
conditions at the facility. Because of
changes in the waterbody over time,
studies older than 10 years must include
an explanation of why the data are still
relevant and representative of
conditions at the facility. If the data are
no longer relevant and representative,
the Director may reject the data. The
Director uses such studies when
establishing technology-based
requirements for entrainment. Permit
applicants are not required to conduct
new studies simply to fulfill this
requirement. This requirement is rather
aimed at obtaining results for relevant
studies that have already been
conducted as part of past permit
proceedings or for other purposes even
if those studies were not completed or
conducted entirely as planned.
90 For example, the study may be old and no
longer representative, the study may address a pilot
study of a technology no longer under consideration
by the facility, or the facility may have already
selected one of the compliance methods for IM
based on pre-approved technologies at
§ 125.94(c)(1), (2) or (4).
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7. § 122.21(r)(8) Operational Status
The applicant must submit a
description of the operational status of
each unit for which a cooling water
intake structure provides water for
cooling, including the following:
Descriptions of each individual unit’s
operating status including age of the
unit, capacity utilization for the
previous five years (including any
unusual or extended outages that
significantly affect the facility’s
reporting of flow, impingement, or other
data), and any major upgrades
completed in the past 15 years (e.g.,
boiler or condenser replacement,
changes to fuel type, a new production
line); a description of completed,
approved, or scheduled uprates and
NRC (Nuclear Regulatory Commission)
relicensing status for nuclear facilities; a
description of plans or schedules for
decommissioning or replacement of
units; and a description of current and
future production schedules for
manufacturing facilities. The Director
will use such information in
determining the BTA for entrainment as
well as when establishing compliance
schedules. For example, where the
remaining useful plant life is
considerably shorter than the useful life
of an entrainment technology or where
a facility has a planned retirement
within the next permit cycle, this
information is useful to support a
determination regarding that specific
entrainment technology. This
information would also be used under
§ 125.94(c)(12) to document
infrequently used power generating
units that operate with a capacity
utilization of less than 8 percent
averaged over a 24-month block
contiguous period and that the Director
may therefore determine warrants IM
controls less stringent than
§ 125.94(c)(1) through (c)(7). With
respect to entrainment, the BTA for
entrainment is determined by the
Director for each site, and energy
reliability is one factor the Director may
consider when establishing entrainment
controls (see § 125.98(f)(3)). EPA expects
the information submitted on energy
reliability will be considered by the
Director when making a BTA
determination for entrainment for low
CUR units.
8. § 122.21(r)(9) Entrainment
Characterization Study
Facilities that withdraw greater than
125 mgd AIF must develop a study that
includes a minimum of two years of
entrainment data collection. EPA
envisions the facility would extend the
data collection methods and frequency
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to develop the source water
characterization already required by
§ 122.21(r)(4) to develop the
Entrainment Characterization Study.
The study would include complete
documentation of the data collection
period and frequency of entrainment
characterization, and an identification
of the organisms sampled to the lowest
taxon possible. The data collection must
be representative of the entrainment at
each intake, and the study must
document how the location of the intake
in the waterbody and the water column
are accounted for. The study must
document the intake flows associated
with the data collection. Consistent with
the permit application requirements
requiring biological data collection at
§ 122.21(r)(4) and (6), EPA requires at
least two years of data to sufficiently
characterize annual, seasonal, and diel
variations in entrainment, including
variations related to climate, weather,
spawning, feeding, and water column
migration. Also consistent with the
permit application requirements at
§ 122.21(r)(4) and (6), facilities may use
historical data that are representative of
current operation of the facility and
conditions at the site with
documentation regarding the continued
relevance of the data. The study must
include analysis of the data to
determine total entrainment and
entrainment mortality. Documentation
in the study must include the method in
which latent mortality would be
identified, and all methods and quality
assurance/quality control procedures for
sampling and data analysis would be
described. The sampling and data
analysis methods must be appropriate
for a quantitative survey.
This information will help the
Director determine the site-specific BTA
for entrainment. For facilities with no
entrainment technologies currently in
place, this information characterizes the
total potential for entrainment. The
information can also be used to
demonstrate that technologies and other
measures already in place, or sitespecific factors such as intake location
or design, already reduce entrainment.
For example, abundance data might
demonstrate lower comparative
densities that can significantly lower
entrainment rates. The information
could also be used by new units under
§ 125.94(e)(2) to demonstrate that an
alternative technology or combination of
technologies reduce entrainment at that
site to a level commensurate with
closed-cycle cooling.
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9. § 122.21(r)(10) Comprehensive
Technical Feasibility and Cost
Evaluation Study
The owner or operator of the facility
must submit an engineering study of the
technical feasibility and incremental
costs of candidate entrainment control
technologies. The study must include an
evaluation of technical feasibility of
closed-cycle cooling and fine-mesh
screens with a mesh size of 2 mm or
smaller, reuse of water or alternate
sources of cooling water, and any other
entrainment reduction technologies
identified by the applicant or requested
by the Director. This study must include
a description of all technologies and
operational measures considered (which
could include alternative designs of
closed-cycle recirculating systems such
as natural draft cooling towers, hybrid
designs, compact or multi-cell
arrangements, or the conversion of
helper towers to a fully recirculating
system); and documentation of factors
that make a candidate technology
impractical or infeasible for further
evaluation. For example, a discussion of
land availability might include an
evaluation of adjacent land, and acres
potentially available because of
generating unit retirements, production
unit retirements, other buildings and
equipment retirements, ponds, coal
piles, rail yards, transmission yards, and
parking lots; decommissioning of
existing units; repurposing of existing
land uses; documentation that
insufficient acres are available on-site;
and evidence of the feasibility of the
purchase or other acquisition of
property adjacent to the facility.
For the analysis of water reuse and
use of alternate sources of cooling water,
the owner or operator must examine the
available alternatives for reuse of
effluent from within the facility or from
other dischargers in the vicinity. The
volume of water available need not be
for the full intake flow; reuse of water
could contribute to a partial reduction
in flow at the facility. Additionally, if
the facility were to retrofit to a closedcycle system, the significant reduction
in flow may make nearby alternative
sources more feasible. This analysis
should include an estimate of the cost
to build any new infrastructure (e.g.,
piping, pump houses) and the ongoing
operational costs (e.g., pump costs) for
the Director’s consideration.
The final rule requires that the cost
information be presented as both the
facility’s compliance costs and the
social costs, and in net present value
(NPV) terms and the corresponding
annual value. Social costs are the costs
estimated from the viewpoint of society,
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rather than individual stakeholders.
Social cost represents the total burden
imposed on the economy; it is the sum
of all opportunity costs incurred. See
Chapter 8 of EPA’s 2010 Guidelines for
Preparing Economic Analyses (DCN 10–
3258). Some adjustments to facility
compliance costs to produce social costs
cause them to be higher than
compliance costs, while other cause
social costs to be lower. Although a
facility makes investment decisions by
taking tax consequences into account
(after-tax costs), the favorable tax
treatment of investments is viewed as a
transfer and not a real resource cost,
thus pre-tax costs are used in social cost
analysis. From society’s viewpoint,
costs in the future must be amortized
and discounted to net present value
using a social discount rate, rather than
a market cost of capital as reflected in
market interest rates. The Office of
Management and Budget (OMB)
Circular A–4 (DCN 10–3266) instructs
agencies to use both 3 percent and 7
percent discount rates. Certain
administrative costs are not borne by a
facility, but rather by the Director, and
are social costs. Compliance costs
include the facility’s administrative
costs, including costs of permit
application, while the social cost
adjustment includes the Director’s
administrative costs. EPA has estimated
the Directors’ administrative costs in the
ICR for the final rule, and describes the
methodology for estimating these costs
in detail in the EA. Facilities may adopt
a similar approach to including
Director’s administrative costs in their
social cost estimates. In addition, this
component is not expected to be large
or to vary significantly across
technology options considered.
From a facility’s viewpoint, downtime
costs include lost net revenue, while
from society’s viewpoint, if another
facility is dispatched or inventory of
manufactured goods can be sold, the
only social cost of downtime is any
increase in marginal costs of production
at other facilities dispatched or the cost
of holding inventory. Unless a facility
can demonstrate that its costs of
compliance will result in lower overall
supply in the markets in which its
products are sold, and that the effect of
the lowered supply is an increase in
market price and lower quantity of
product sold, the facility should not
make a social cost adjustment to reflect
these larger market impacts.
In addition to the required social
costs, the owner or operator may choose
to provide facility level compliance
costs; however, such costs must be
provided and discussed separately from
social costs. The cost evaluation
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component of this study must include
engineering cost estimates of all
technologies considered above and also
discuss and provide documentation of
any outages, downtime, energy penalties
or other effects on revenue. The cost
evaluation should be based on least-cost
approaches to implementing each
candidate technology while meeting all
regulatory and operational requirements
of the facility. Depreciation schedules,
interest rates, further consideration of
remaining useful life of the facility as
discussed in § 122.21(r)(8), and any
related assumptions must be identified.
The owner or operator of the facility
must obtain peer review of the
Comprehensive Technical Feasibility
and Cost Evaluation Study, as described
in Section 12.
10. § 122.21(r)(11) Benefits Valuation
Study
The owner or operator of the facility
must submit a detailed discussion of the
benefits of the candidate entrainment
reduction technologies evaluated in
§ 122.21(r)(10) and using data in the
Entrainment Characterization Study in
§ 122.21(r)(9). Each category of benefits
should be described narratively, and
when possible benefits should be
quantified in physical or biological
units and monetized using appropriate
economic valuation methods. This
includes incremental changes in the
impingement mortality and entrainment
of individual fish and shellfish for all
exposed life stages, estimation of
changes in stock and harvest levels of
commercial and recreational species,
and description of any monetization.
This may include monetization using
market values, market proxies (e.g.,
models based on travel costs or other
methodologies), benefits transfer and
stated preference methods. Benefits that
cannot be monetized should be
quantified where feasible and discussed
qualitatively where not. The study must
identify increased or decreased thermal
discharges, and must evaluate the
potential changes in facility capacity,
operations, and reliability due to
relaxed permitting constraints related to
thermal discharges. The study must also
include discussion of recent mitigation
efforts already completed and how these
have affected fish abundance and
ecosystem viability in the intake
structure’s area of influence. Finally, the
study must identify other benefits to the
environment and the community,
including improvements for mammals,
birds, and other organisms and aquatic
habitats. The owner or operator of the
facility must obtain peer review of the
benefits evaluation study, as described
in Section 12. EPA expects peer
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reviewers to have appropriate
qualifications (e.g., fisheries biologist,
economist) for the subject matter. The
Director may consult with EPA and
Federal, State and Tribal fish and
wildlife management agencies with
responsibility for fish and wildlife
potentially affected by the cooling water
intake structure(s) to determine which
peer review comments must be
addressed by the final study. The dollar
values in the social benefits analysis
should be based on the principle of
willingness-to-pay (WTP), which
captures monetary benefits by
measuring what individuals are willing
to forgo in order to enjoy a particular
benefit. While the Director must
consider benefit and cost information,
the Director will also determine if this
information is of sufficient rigor to make
a decision on entrainment controls on
the basis of this information. For
instance, the Director may decide not to
rely on benefit-cost information in
establishing the entrainment controls
when the benefits analysis includes
only a qualitative discussion of nonuse
benefits. Willingness-to-pay for nonuse
benefits can be measured using benefits
transfer or a stated preference survey.
However, the rule does not require the
Director to require a facility owner or
operator to conduct or submit a stated
preference survey to assess benefits.
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11. § 122.21(r)(12) Non-Water Quality
Environmental and Other Impacts
Assessment
The owner or operator of the facility
must submit a detailed discussion of the
changes in non-water quality
environmental and other factors
attributed to technologies or operational
measures, or both, considered. These
changes may include, for example,
increases or decreases in the following:
Energy consumption; air pollutant
emissions and their health and
environmental impacts; noise; safety
concerns, such as the potential for
plumes, icing, and availability of
emergency cooling water; grid
reliability, including an estimate of
changes to facility capacity, operations,
and reliability due to cooling water
availability; consumptive water use
(including effects of surface water
evaporation of thermal discharges); and
facility reliability, such as production of
steam and impacts to production based
on process unit heating or cooling. The
owner or operator of the facility must
provide for peer review of the NonWater Quality Environmental and Other
Impacts Assessment as described in the
following section.
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12. § 122.21(r)(13) Peer Review
The owner or operator of the facility
must provide for peer review of the
permit application studies required at
§ 122.21(r)(10) Comprehensive
Technical Feasibility and Cost
Evaluation Study, § 122.21(r)(11)
Benefits Valuation Study, and
§ 122.21(r)(12) Non-Water Quality and
Other Impacts Assessment. While
facilities that withdraw more than 125
mgd AIF must conduct these studies
and therefore must provide for peer
review, facilities that withdraw equal to
or less than 125 mgd AIF may have
study requirements including peer
review as determined by the Director. In
today’s final rule, EPA did not adopt
separate peer review requirements for
the Entrainment Characterization Study
at § 122.21(r)(9), because this data
would be included in the
Comprehensive Technical Feasibility
and Cost Evaluation Study, Benefits
Valuation Study, and Non-Water
Quality and Other Impacts Assessment,
and these studies are already subject to
peer review. For these reasons, EPA
reduced the burden in the final rule by
eliminating the peer review requirement
for entrainment characterization.
EPA recognized at proposal that in
many cases it is more efficient for
permit applicants to combine the
required studies into one document and
have them reviewed holistically by a
single set of peer reviewers. Such an
approach is allowed by the final rule, as
long as the peer review panel has the
background appropriate to conduct a
complete and combined review and the
Director approves.
The Director may consult with
Federal, State and Tribal fish and
wildlife management agencies with
responsibility for fish and wildlife
potentially affected by the cooling water
intake structure(s). Further, the Director
may require the owner or operator of the
facility to include additional peer
reviewers of the studies. EPA expects
peer reviewers to have appropriate
qualifications (e.g., in the fields of
biology, engineering) for the subject
matter. An explanation for any
significant reviewer comments not
accepted must be included in the final
study submission. Additional guidance
on conducting peer review is available
on EPA’s Peer Review Program Web site
at www.epa.gov/peerreview.
13. § 122.21(r)(14) New Units
New units at existing facilities must
identify the compliance method for the
new unit under the permit application
requirements at § 122.21(r)(14). Where
the facility complies with BTA
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standards for entrainment at
§ 125.94(e)(1) by reducing its intake
flows commensurate with that of a
closed-cycle recirculating system (as
defined at § 125.92(c)(1)), the BTA
standards for impingement mortality
will have been met by § 125.94(c)(1). To
comply with the alternative at
§ 125.94(e)(2), there must be a
demonstration that entrainment
reductions equivalent to 90 percent or
greater of the reductions that could be
achieved through compliance with
§ 125.94(e)(1).91 In this case, permit
application requirement § 122.21(r)(14)
requires this demonstration to include
the Entrainment Characterization Study
at § 122.21(r)(9). The Director may
determine additional data and
information, including data collection,
is necessary to make the demonstration.
D. When are permit application studies
due?
The owner or operator of a facility
applying for reissuance of a permit must
submit the information required at
§ 122.21(r) to the Director no later than
180 days before the current permit
expires. Those facilities that were
subject to the section 316(b) Phase II
rule from February 16, 2004 until
suspension of that rule on July 9, 2007
were already collecting some
information required at § 122.21(r). EPA
has structured this rule to take
advantage of those data and expects
facilities to use them when they satisfy
requirements for permit applications.
In some cases, required permit
application information might have
been collected, but reports might not
have been generated or finalized prior to
the rule suspension in 2007. Further,
facilities not subject to the Phase II rule
(e.g., existing power plants below 50
mgd DIF and all existing manufacturers)
might not have collected this
information or might not have collected
information to identify permit operating
91 Note that a new unit may construct a new
intake structure or utilize capacity from an existing
intake structure. For the former, the requirements
of § 125.94(e)(1) are simple to conceptualize and
apply. But for the latter, EPA clarifies that the new
unit requirements only apply to that portion of the
flow that is serving the new unit. For a new unit
using an existing intake structure that chooses to
comply using § 125.94(e)(1), demonstrating that the
new unit achieves the required reduction in flow
should be a relatively simple exercise in identifying
intake flows and the distribution of cooling water
from the intake structure. For a new unit using an
existing intake structure that chooses to comply
using § 125.94(e)(2), the facility would demonstrate
that it has reduced entrainment for that portion of
the intake flow serving the new unit by 90 percent;
the facility would not be required to reduce
entrainment for the flow of the entire intake
structure by 90 percent, unless the Director makes
such a site-specific determination for entrainment
at the existing units as well.
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conditions. In those cases, facilities
would have to collect additional data in
order to have two years of biological
data collection. EPA expects associated
studies and reports will take several
additional months to complete. For this
reason, EPA has established a provision
for permit application submittal for a
permit expiring prior to July 14, 2018,
allowing the Director flexibility to delay
application requirements based on a
showing by the owner or operator that
it could not develop the information by
the time required for submission of the
permit application. The Director would
then establish a schedule for submission
of the delayed permit application
requirements. EPA notes that the
Director has the discretion to require
additional studies, data collection, or an
on-site inspection as part of the permit
process.
Facilities whose permit expires after
July 14, 2018 would submit all required
materials in § 122.21(r) with their
permit renewal application.
New units at existing facilities must
submit the information required at
§ 122.21(r) to the Director no later than
180 days before commencing operation
of the new unit. Because these units are
being constructed at a facility that is
already operating, the facility will have
already submitted many of the permit
application materials. The addition of a
new unit would require an update of or
supplement to permit application
materials that have already been
submitted. New units take significant
time and resources to plan, design, and
construct; therefore the final rule does
not have a provision to waive permit
application requirements based on a
showing by the owner or operator that
it could not develop the information by
the time required for submission of the
permit application. For permit renewals
subsequent to the first permit issued
under today’s rule, the new unit would
be included in the assessment of the
entire facility and would no longer
require unique permit application
submissions. As discussed previously,
the owner or operator is encouraged to
submit applications well in advance of
the 180 day requirement to avoid delay.
EPA is aware that some intake
structures withdraw from a manmade
lake or reservoir that is stocked and
managed by a State or Federal natural
resources agency. In some cases, the
biological characterization of the source
water is heavily influenced by the
actions of the natural resources agency.
Further, the results of biological data
collection and studies may be
confounded by such actions. Today’s
final rule at § 125.95(a)(3) gives the
Director discretion to waive some or all
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of the permit application requirements
of § 122.21(r) in such circumstances.
In permit terms subsequent to the first
permit issued under the final rule, the
facility will re-submit the § 122.21(r)
permit application studies, while the
rule still includes two years of
biological data collection for some
facilities. In this manner, the biological
characterization over time would be
routinely evaluated, i.e., every 5 years
under a standard permit cycle. To
reduce the burden of such data
collection, however, the final rule
provides that the owner or operator of
a facility may submit a request to the
Director to reduce the information
required. See 40 CFR 125.95(c). In most
cases, EPA anticipates the facility would
make any such request prior to
conducting its two years of biological
data collection. Therefore the request for
reduced information requirements must
be submitted to the Director at least two
years and six months before the
expiration of the facility’s NPDES
permit. The Director may approve such
a request if conditions at the facility and
in the waterbody remain substantially
unchanged since the previous permit
application.92 EPA expects the Director
would assess the relevant previously
submitted information and determine
whether it remains representative of
current source water, intake structure,
cooling water system, and operating
conditions. Accordingly, the Director
may accept or reject any part of the
request.
E. How will the director determine the
best technology available for minimizing
adverse environmental impacts?
1. Review and Approval of Permit
Application Materials
Under today’s rule, the Director will
review all materials submitted by an
existing facility with its permit
application to determine appropriate
NPDES permit conditions and
requirements to minimize impingement
mortality and entrainment. As stated at
40 CFR 125.98(a), the Director shall not
issue a permit before receiving a permit
application form and any supplemental
information which are completed to his
or her satisfaction (see existing Permit
Application and Special NPDES
92 The presence of any habitat designated as
critical, or species listed as threatened or
endangered after issuance of the current permit
(whose range of habitat or designated critical habit
includes waters where a facility intake is located)
constitutes potential for a substantial change that
must be addressed by the owner/operator in
subsequent permit applications, unless the facility
received an exemption pursuant to 16 U.S.C.
1536(o) or a permit pursuant to 16 U.S.C. 1539(a)
or there is no reasonable expectation of take.
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Program Requirements at 40 CFR
122.21(e)).
Facilities with a design intake flow at
or below 2 mgd will continue to have
permit conditions set on a case-by-case,
best professional judgment basis under
40 CFR 125.90(b) and 401.14. For such
facilities, however, the Director may
choose to apply some portions of the
permit application conditions in today’s
rule to aid in the BPJ determination.
The Director is encouraged to
expeditiously provide any comments on
submitted materials so the facility can
make responsive modifications to its
information gathering activities. For
permit applications subsequent to the
first permit issued under today’s rule,
the Director could indicate whether
reduced or different information must
be submitted with the permit
application. More specific
responsibilities are described below:
a. If the Director has made a BTA
determination for entrainment before
the effective date of the rule, and
substantially the same information was
already submitted and considered by
the Director in making that
determination, under § 125.98(g) the
Director may proceed with the
Determination of BTA without requiring
the owner to submit the information
required in § 122.21(r).
To clarify further, EPA has included
a ‘‘transition’’ provision at § 125.98(g) of
today’s rule that makes it clear that for
any facility that has submitted a permit
application before the effective date of
the regulation, the Director may select
the best approach to development and
implementation of the next permit.
These provisions are intended to avoid
any unnecessary delay in recently
submitted permit applications or draft
permits. EPA expects that facilities will
continue with any data collection
requirements, study requirements, and
schedules in recently issued permits.
b. If the Director establishes a
compliance schedule under § 125.94,
the Director will establish a schedule
that sets requirements as soon as
practicable. In establishing the
schedule, the Director is encouraged to
consider the extent to which those
technologies proposed to be
implemented to meet the requirements
of § 125.94(d) will be used, or could
otherwise affect a facility’s choice of
technology, to meet the requirements of
§ 125.94(c). Impacts of thermal
discharges, along with other stressors,
might be a relevant consideration when
assessing benefits of technologies to
reduce impacts of cooling water intakes
or discharges. The Director is also
encouraged to consider energy
reliability, transmission capacity, and
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grid requirements when establishing a
schedule for electric power generating
facilities. The Director may confer with
local and regional electric power
agencies and state utility regulators
when establishing a schedule for
electric power generating facilities (see
DCN 10–6860 for information on the
approach taken by California). The
Director may determine that extenuating
circumstances (e.g., lengthy scheduled
outages, future production schedules)
warrant establishing a different
compliance date for any manufacturing
facility.
c. The Director will review the permit
application materials and studies
submitted under § 122.21(r) and
determine which entrainment controls
are appropriate. Factors that must be
considered and factors that may be
considered in making the determination
are provided at § 125.98. The Director
must issue a written explanation for the
BTA determination and must make this
determination, and any other
information submitted by third parties,
available with the permit for public
review. This determination is expected
to be issued as part of the permit’s
statement of basis under 40 CFR 124.7.
2. Role of Social Cost-Benefit Analysis
in Permit Determinations
In deciding what technology to
require a permittee to install to address
entrainment, the Director may
undertake an evaluation of social costs
and benefits of implementing such
requirements. This analysis will be
based on the information submitted by
the applicant, supplemented by any
information submitted by third parties,
and additional information as
determined appropriate by the Director.
EPA recognizes the resource limitations
faced by permitting authorities and does
not generally expect that the Director
would develop additional information
on which to base the evaluation of
social benefits and costs, although the
Director may opt to do so. This analysis
should evaluate benefits and costs from
the perspective of society as a whole,
rather than costs and benefits accruing
to limited parties (e.g., very local
populations or the permittee, which
presents a limited set of information to
the Director).
It is also important to note that the
stated preference survey conducted by
EPA which was discussed in the June
12, 2012 Notice of Data Availability (77
FR 34927) was designed to estimate
respondents’ willingness to pay for
changes in the health of fish
populations and aquatic ecosystems and
be statistically representative at large
(regional and national) scales; the
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results were not designed to be
statistically representative at the facility
level for the assessment of benefits for
individual site-level permitting
decisions. Today’s final rule does not
require the Director to require a facility
owner or operator to conduct or submit
a stated preference survey to assess
benefits. Further, the rule does not limit
the Director’s discretion to consider
non-water quality impacts in
determining whether further
entrainment measures are justified.
A number of cost elements should be
accounted for in assessing the social
cost of entrainment technology
implementation. These are summarized
below.
a. Technology Installation Cost
These peer-reviewed engineering cost
estimates of the physical construction of
candidate entrainment technologies at
the facility are required. These costs
would be provided by the applicant
under § 122.21(r)(10).
b. Installation Downtime Cost
Installation of closed-cycle cooling
systems will often require facilities to
take additional downtime beyond
ordinary annual maintenance
downtime. An estimate of downtime
cost to the facility is required under
§ 122.21(r)(10). EPA expects a facility
will document that portion of downtime
that is incremental to any downtime the
facility already incurs due to, for
example, routine maintenance outages,
overhauls, refueling, and periodic
replacement of equipment that is at the
end of its useful life. Downtime costs to
the facility include the value of lost
production (e.g., electricity) minus any
variable cost savings, as well as any
other costs to the facility associated
with downtime (shutdown and startup
routines, special maintenance protocols,
etc.) minus any savings associated with
downtime. If they are considered in the
social costs analysis, downtime costs
must be adjusted to reflect production
made up by other facilities or firms,
because these temper the real resource
costs from society’s viewpoint. The cost
of downtime is determined on a
different basis for social cost.
Specifically, the cost of downtime to
society is the cost incurred for other
facilities and generating units to make
up the electricity or manufactured goods
that would have otherwise been
generated by the facility minus the cost
that would have otherwise been
incurred by the facility incurring
downtime. This difference in cost
reflects the additional cost, if any, that
society must pay to generate the
replacement goods, and may differ
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substantially from the cost of downtime
to the facility.
c. Energy Penalty Cost
Operation of closed-cycle cooling
systems may impose an energy penalty.
EPA is using energy penalty to mean
only the opportunity costs associated
with reduced power production due to
derating (turbine backpressure). Energy
penalty does not include the costs to
operate pumps and fans associated with
closed-cycle cooling, which are
operation and maintenance costs (and
covered below). Under well-established
principles in benefit-cost analysis, the
cost of the energy penalty to the facility
is not the opportunity cost to society.
Instead, the cost to society is the cost of
generating the electricity, whether
incurred by the regulated facility or
another facility, that is no longer
available for consumption because of
the energy penalty. This cost may be
incurred by the facility, if it can increase
the energy input to, and output from,
the generating unit to generate the
electricity that is otherwise no longer
available for consumption, or by another
generating unit if the regulated unit
cannot make up the electricity. In either
case, the social cost of the energy
penalty is the cost of generating the
electricity that would otherwise be
available for consumption except for the
energy penalty. Again, an assessment of
these costs would be determined under
the § 122.21(r)(10) demonstration.
d. Operation and Maintenance Costs for
the Entrainment Technology Equipment
The cost of energy to operate the
entrainment technology for electric
generators should appear in the
operation and maintenance costs, along
with other labor and materials costs. In
the same way as described above, the
social cost of the energy required to
operate entrainment technology is the
cost for generating this electricity, as it
is otherwise no longer available for enduse consumption. This cost could be
incurred by the regulated facility, if it
has sufficient capacity to make up the
loss, or by another facility, if the
regulated facility is not capable of
generating the electricity that is no
longer available for end-use
consumption.
e. Other Administrative Expenses
This includes additional permitting or
reporting expenses, or both. For social
costs, the estimate should include the
costs to the facility and those expected
to be incurred by the Director.
EPA has estimated the Directors’
administrative costs in the ICR for the
final rule, as explained in the EA, and
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facilities may adopt a similar approach
to estimating these costs at the permit
level. For assessing social cost, the cost
elements outlined above would
typically be accounted for on a real cost
basis—that is, pre-tax and without
adjusting for future inflation. Costs are
tallied over an appropriate time frame,
which will typically be the expected
useful life of the technology installation
or the remaining life of the facility, if
less. Costs should be calculated as both
net present value and annualized
values, using an appropriate social
discount rate. The applicant should
document the basis for the discount rate
chosen, and its methodology and
calculations.
f. Benefits
In assessing the benefits of
entrainment technology installation, the
Director would assess the value to
society from the reductions in
impingement mortality and entrainment
that would result from installation of a
closed-cycle cooling system, fine mesh
screens, or other entrainment
technologies. All benefits, including
monetized, quantified and qualitative
benefits, should be considered in this
assessment. The benefits assessment
would typically look at a range of
potential benefit categories, including
increased harvest for commercial
fisheries, increased use values for
recreational fisheries, and nonuse
values (existence and bequest values).
The latter may be difficult to quantify or
monetize. If appropriate data are
available from benefits transfer or
conducting stated preference studies or
other sources that can be applied to the
site being evaluated, these should be
used to monetize nonuse values.
Otherwise, nonuse values should be
evaluated quantitatively and/or
qualitatively. Quantitative analysis,
even without monetization, can be quite
useful in evaluating nonuse benefits.
For example, quantifying impacts to
forage and threatened and endangered
species, and other indirect impacts on
the aquatic environment, might allow
the Director to derive a much more
complete understanding of benefits as
compared to a qualitative narrative,
even if not directly comparable to
monetary costs.
Quantifying and valuing the benefit
categories listed above involves
significant challenges, as described in
the BA. For example, assessing the
productivity and value of commercial
fisheries involves estimating the
expected increases in commercial yield
of economically valued species over
time as a result of reduced impingement
mortality and entrainment, and valuing
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these at market prices minus any
incremental production costs associated
with the incremental catch. Similarly,
assessing recreational use benefits
involves estimating the improvements
in recreational fishing opportunities
resulting from reduced impingement
mortality and entrainment, and
assigning a value to these
improvements. The value assignment is
based on the estimated population
profile—in particular, number and
proximity to affected water resources—
of recreational users, the availability of
alternative competing water resources
for recreational usage, and the resulting
estimated change in demand for use and
value of the affected water resources
based on reduced impingement
mortality and entrainment and
increased recreational fishing
performance. EPA acknowledges this
could be difficult to do even on a sitespecific basis.
Nonuse benefits, which encompass
existence and bequest values, include
impacts in such areas as population
resilience and support, nutrient cycling,
natural species assemblages, and
ecosystem health and integrity. Nonuse
values include improving the survival
probability of a threatened or
endangered species if present in the
vicinity of the facility. Benefits might
also need to be assessed beyond the
vicinity of the facility’s intake if
migratory species are affected by the
intake. Residual impacts of thermal
discharges might also be appropriate to
consider in the social benefits
calculation.
In much the same way as described
for the social cost assessment, social
benefits are tallied yearly over the
expected performance life of the
compliance technology. This tallying
should account for the ‘‘phase-in’’ of
benefits (e.g., benefits may build up over
time as the impingement mortality and
entrainment reductions affect
commercial fisheries productivity).
Benefits are computed on a present
value basis and annualized using an
appropriate discount rate as described
above. The same discount rate should be
used for benefits and costs. Often, it is
appropriate to calculate benefits and
costs using more than one discount rate.
For example, for regulatory impact
analysis, OMB recommends that Federal
agencies use both a 3 percent and a 7
percent rate. However, comparisons
between specific benefit and cost
numbers should always involve values
computed using the same rate.
The resulting estimates of social cost
and benefits must be considered in
determinations on whether to require a
permittee to install entrainment
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48371
technology and the specific level of
entrainment technology to be installed.
The Director may reject otherwise
available technologies as the BTA
requirements for entrainment controls if
the social costs of compliance are not
justified by the social benefits, or if
there are other adverse impacts that
cannot be mitigated that the Director
deems to be unacceptable. If all
technologies considered have social
costs not justified by the social benefits,
or have unacceptable adverse impacts
that cannot be mitigated, the Director
may determine that no additional
control requirements are necessary
beyond what the facility is already
doing. The Director should document
the basis for such a determination and
include it in the public notice for the
draft permit.
3. Streamlined Process
The process for complying with the
impingement mortality standards is
expected to be highly streamlined. As
shown in Exhibit VIII–1, EPA expects
more than 99 percent of facilities will
comply by one of the six compliance
options that do not require continual
biological compliance monitoring (one
of the three compliance alternatives
based on pre-approved technologies or
one of the three streamlined compliance
alternatives). If a facility chooses to
comply by operating a modified
traveling screen, the Director will
review the impingement technology
performance optimization study,
including the identification of species,
duration and structure of the study, and
any monitoring requirements.
4. De Minimus Provision
The Director may, based on a review
of data submitted under § 122.21(r),
conclude that the documented rate of
impingement at the cooling water intake
structures is so low that no additional
controls are warranted. As described in
section I.A.H, low flow facilities may in
particular be candidates for such
consideration, although the authority of
the Director is not limited to low flow
facilities. The Director may want to
consider facility withdrawal rates in
relation to the mean annual flow of the
river and possible co-location with other
CWISs when making a de minimis
determination. Notice of this
determination would be included in the
draft permit made available for public
comment, and the Director’s response to
any comment on this determination
must be included in the record for the
final permit. EPA considers low rates of
impingement to be measured as an
organism or age-one equivalent count,
and not as the effect of impingement on
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fish populations. The Director may
require data collection to demonstrate
support for a de minimis level of
impingement. In addition, EPA does not
expect that a de minimis exemption
would apply to facilities with no
technology present other than trash
racks, a technology that nearly all
facilities employ. In making a
determination that no additional
controls are warranted, the Director may
wish to consider factors such as whether
the waters are subject to a TMDL for an
aquatic life use, the waters are not
attaining a designated use, and there
would be more than minor detrimental
effects on threatened or endangered
species or critical habitat. The Director
will still establish proper operation and
maintenance conditions in the permit
whenever making a de minimis finding
that no additional controls are
warranted. EPA notes that the de
minimis provision for impingement
does not necessarily mean a facility has
a de minimis level of entrainment. The
life stages affected by impingement are
different than those affected by
entrainment, and low counts of
impingeable life stages do not always
mean the counts of entrained organism
are similarly low. Since the entrainment
requirements are already determined by
the Director for each site, EPA
concluded that specific regulatory
language for de minimis entrainment
was unnecessary.
5. Low Capacity Utilization Units
The Director may consider less
stringent controls for intakes dedicated
to low capacity utilization rate (CUR)
power generating units. If an existing
facility has a cooling water intake
structure used exclusively for one or
more existing electric generating units,
each with an annual average capacity
utilization rating of less than 8 percent
averaged over a 24-month block
contiguous period, the owner or
operator may request that the Director
establish BTA standards for
impingement mortality for that cooling
water intake structure which are less
stringent than § 125.94(c)(1) to (c)(7).
When determining the permit’s IM
requirements associated with the low
CUR unit, the Director may consider,
after conferring with any appropriate
state co-regulators (such as public utility
commissioners) and with regional
transmission organizations,
independent system operators or other
planning authorities, the significance of
the unit’s operation to the overall
reliability of electric power in the area.
In addition, in determining the IM
requirements associated with a low CUR
unit, the Director should consider any
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seasonal factors for affected species that
might justify seasonal limits on the
unit’s operation, for example any
increased impacts resulting from the
unit’s operation during spawning runs.
Also, when considering the presence
and potential effects to threatened and
endangered species, the Director should
consider whether the life stages present
at the location are at risk of being
impinged or entrained at the low CUR
unit’s cooling water intake.
In the event that the Director
determines less stringent controls for
intakes dedicated to low capacity
utilization power generating units are
appropriate, they should consider, at a
minimum, the following in establishing
controls:
Strategies for minimizing water
withdrawal during stand by periods of
operation, startup/shutdown, and online periods of operation;
The effectiveness of installing variable
speed pump drives to reduce water
withdrawals during all periods of
operation, particularly during stand-by
periods of operation; and
The effectiveness of installing
alternative equipment (e.g. behavioral
deterrents) to minimize impingement
mortality.
The owner or operator would
demonstrate whether they have an
intake only serving one or more low
capacity utilization power generating
units in permit application
requirements at § 122.21(r)(3) and (8).
Under § 122.21(r)(6), the owner or
operator would indicate a request that
the Director establish alternative BTA
standards that are less stringent than
§ 125.94(c)(1) through (7). EPA
recognizes the contribution of peaking
units in serving peak electricity
demands, and maintaining a reliable
electricity grid. However, if peaking
units are in standby mode for long
periods relative to periods when they
are generating electricity, the result is a
capacity utilization of the cooling water
intake that is greater than the capacity
utilization of the generator. Significant
periods of standby could contribute to a
greater impact on aquatic life. While the
8 percent capacity utilization is an
industry standard that distinguishes
those units making the greatest
contribution to a smoothly functioning
electricity grid, a Director may still
determine that the impacts to aquatic
life are significant enough to deny a
request that BTA at that intake should
be less stringent than § 125.94(c)(1) to
(c)(7). EPA anticipates the Director will
have the information necessary to
determine BTA in such circumstances
based on the permit application
requirements, including but not limited
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to an identification of the number of
days the cooling water system is in
operation, flow on those days, and
seasonal changes in the operation of the
system under § 122.21(r)(5) and the
biological information under
§ 122.21(r)(4).
As discussed previously, the Director
will determine the BTA for entrainment
for low CUR units on a site-specific
basis. EPA expects that many of the
same factors discussed above—
including the significance of the unit’s
operation to the overall reliability of
electric power in the area, the diversity
of fuels available for the unit, and the
impact of the costs of any potential
entrainment requirements on the unit’s
cooling water intake structure on overall
reliability of electric power in the area—
will be relevant in making site-specific
BTA entrainment determinations for
low CUR units. The Director may
consider the factors at § 125.98(f)(3)
when making these determinations for
low CUR units, which includes grid
reliability, among other factors.
6. Monitoring
The Director will review any
impingement mortality and entrainment
monitoring reports submitted by the
facility to ensure ongoing compliance.
EPA is shifting toward an electronic
discharge monitoring report system, and
many of the impingement mortality and
entrainment standards can be
incorporated into the discharge
monitoring report itself, rather than
requiring a separate report. Except for
facilities choosing alternatives
§ 125.94(c)(7), detailed biological data
collection would only be included as
part of the facility’s permit application
submission and not for compliance
purposes. The Director has the
discretion to request additional
information, including inspection of the
facility, at § 125.95(d) (i.e., permit
application and supporting information
requirements) and § 125.96(c) (i.e.,
additional monitoring requirements).
7. Nuclear Units
The rule includes a provision that
permits the owner of a nuclear facility
to demonstrate to the Director that
compliance with the rule would result
in a conflict with safety requirements
for their facility. See § 125.94(f). EPA
anticipates that this provision would be
implemented as follows. Initially, the
Director will draft a permit and will
share the draft permit with the owner or
operator of the nuclear facility. Upon
reviewing the draft permit, the owner or
operator will determine whether in their
view a conflict with a safety
requirement established by the Nuclear
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Regulatory Commission, the Department
of Energy or the Naval Nuclear
Propulsion Program exists. If a conflict
exists, the owner or operator should
communicate the conflict to the NRC,
Department or Program and the
Director. In all cases, whether a conflict
exists or not, the Director should notify
the NRC, Department or Program and
the owner or operator of the facility that
he or she wishes to informally confer
regarding the permit. Such interactions
should be scheduled, conducted and
documented. Where a conflict is
identified, the Director would make a
site-specific BTA determination.
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F. What are example permit conditions
and compliance monitoring for
impingement mortality?
As previously discussed, the owner or
operator must comply with BTA
standards as soon as practicable on a
schedule of requirements established by
the Director. EPA did not specify dates
by which the BTA standards for
impingement mortality must be met
because the specific method of
compliance with the BTA standards for
impingement mortality is tied to the
determination of BTA requirements for
entrainment. Further discussion of this
alignment of compliance deadlines is
provided in Section A. Today’s final
rule provides for several methods of
compliance with the BTA for
impingement mortality. This section
discusses each of the methods for
compliance, how they follow from the
permit application requirements at
§ 122.21(r), and any minimum
monitoring and reporting requirements
associated with each method.
1. Closed-Cycle Recirculating System
In this method of compliance, an
existing facility must operate a closedcycle recirculating system as defined at
§ 125.92(c). The facility would indicate
the choice to use this compliance
method under § 122.21(r)(6) in its
permit application. As specified in
§ 122.21(r)(1), the facility would need to
submit § 122.21(r)(9) through (13), if it
exceeds 125 mgd AIF and these
requirements are not waived by the
Director. The information still required
at § 122.21(r)(2) to (8) is considerably
less burdensome. The monitoring must
be representative of normal operating
conditions, and must include measuring
cooling water withdrawals, make-up
water, and blowdown flows. The facility
must monitor actual intake flows at a
minimum frequency of daily, or may
monitor the representative cycles of
concentration at a minimum frequency
of daily. These monitoring data would
be used by the Director to determine
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that make-up and blowdown flows have
been minimized. The owner or operator
would submit these data with their
existing DMR or equivalent state report.
Facilities complying using closed-cycle
cooling are not subject to biological
compliance monitoring unless
otherwise specified by the Director (see
§ 125.96(c)).
2. 0.5 Feet per Second Through-Screen
Design Velocity
In this method of compliance, the
facility must operate a cooling water
intake structure that has a maximum
design through-screen intake velocity of
0.5 feet per second. The facility must
submit information under § 122.21(r) to
the Director that demonstrates that the
maximum design intake velocity as
water passes through the structural
components of a screen measured
perpendicular to the screen mesh could
not exceed 0.5 feet per second. The
maximum velocity must be achieved
under all conditions, including during
minimum ambient source water surface
elevations (based on BPJ using
hydrological data) and during periods of
maximum head loss across the screens
or other devices during normal
operation of the intake structure.
EPA notes a cylindrical wedgewire
screen, in general, is designed for 0.5
feet per second. In Phase II, EPA preapproved wedgewire screens under
specific operational conditions. Today’s
final rule simplifies the demonstration
requirements for a facility employing
cylindrical wedgewire screens to that of
demonstrating the maximum design
through-screen velocity is 0.5 feet per
second. As another example, a facility
may have pumping and piping
constrictions that physically limit the
design intake velocity to less than 0.5
feet per second. The Director may
choose to establish permit conditions
that address the physical limitations of
the intake, such as requiring a pump be
removed from service, or that only one
of two (redundant) pumps may operate
at any time. Facilities choosing to
comply under this section do not have
monitoring requirements under this
section.
3. 0.5 Feet per Second Through-Screen
Actual Velocity
This method of compliance is similar
to the design velocity alternative
discussed above, except that the intake’s
maximum design velocity can exceed
0.5 fps, as long as the intake is operated
such that the actual, measured velocity
does not. As an example, a facility may
have originally been constructed with a
maximum design intake of 1.0 feet per
second, but now, because it has retired
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48373
generating capacity but not pumps, may
only withdraw cooling water such that
the actual intake velocity at the intake
never exceeds 0.5 feet per second. This
would constitute compliance with the
impingement mortality standard. The
maximum velocity must be achieved
under all conditions, including during
minimum ambient source water surface
elevations (based on BPJ using
hydrological data) and during periods of
maximum head loss across the screens
or other devices during normal
operation of the intake structure.
Monitoring the velocity at the screen
face or immediately adjacent to the
screen face must be conducted at a
minimum frequency of daily.
Monitoring of the approach velocity
does not meet this requirement.
However, in lieu of velocity monitoring
at the screen face, the owner or operator
may calculate the through-screen
velocity using intake water flow, water
depth, and the screen open area. EPA is
requiring this point of measurement to
ensure that fish are actually able to
swim away (not into an embayment
from which they cannot escape) from
the location within the intake structure
at which they are most susceptible to
being impinged.
Under today’s final rule, the Director
may authorize the facility to exceed the
low velocity compliance alternative for
brief periods for the purpose of
maintaining the cooling water intake
system, such as backwashing the screen
face. In this compliance option,
facilities are not subject to biological
compliance monitoring unless
otherwise specified by the Director (see
§ 125.96(c)).
4. Existing Offshore Velocity Cap
In this method of compliance,
facilities will submit information under
§ 122.21(r) that they operate an offshore
velocity cap that meets the definition at
§ 125.92(v) and that was installed prior
to the effective date of this rule. The
definition of offshore velocity cap
includes the requirement that the
velocity cap be located a minimum of
800 feet offshore. The velocity cap must
include devices to exclude marine
animals, such as bar screens. The
velocity cap must be designed to change
the direction of water withdraw from
vertical to horizontal, thereby creating
velocity patterns that can be sensed and
trigger an avoidance response by fish
and other aquatic organisms. Intake flow
must be monitored at a minimum
frequency of daily. This information
will confirm the intended velocity
patterns are created. In this compliance
option, facilities are not subject to
biological compliance monitoring
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unless otherwise specified by the
Director (see § 125.96(c)).
EPA notes that facilities choosing to
construct a velocity cap at an offshore
location after the effective date of this
rule would use compliance options
§ 125.94(c)(6) (Systems of Technologies
as the Site-specific BTA for
Impingement Mortality) or § 125.94(c)(7)
(Impingement Mortality Performance
Standard).
5. Modified Traveling Screens
In this method of compliance, a
facility must first operate a modified
traveling screen that meets the
definition at § 125.92(s). The definition
identifies and requires those features of
a traveling water screen that provide for
an appropriate level of fish protection:
collection buckets (or equivalent) to
minimize turbulence to aquatic life;
guard rails or barriers to prevent loss of
fish from the collection system; screen
panel materials such as smooth woven
mesh, drilled mesh, molded mesh, or
similar materials to protect fish from
descaling; continuous or nearcontinuous rotation of screens and
operation of collection equipment to
recover impinged fish as soon as
practical; low pressure wash or vacuum
to remove collected organisms from the
screens; fish handling and return with
sufficient water flow to return fish
directly to the source water in a manner
that does not promote predation or the
re-impingement of the fish, or a large
vertical drop. EPA intends for this
definition to generally include modified
Ristroph screens (including Geiger
screens, Beaudrey WIP screens, and
Hydrolox screens), dual flow screens,
and rotary screens.
Modified traveling screens with a fish
return and handling system is the
technology basis for the impingement
mortality standard, therefore the EPA
fully expects biological monitoring of a
properly designed, built, and operated
modified traveling screen would
consistently be able to meet the
impingement mortality performance
standard. If EPA were to simply set a
performance standard based on the
numeric performance levels achievable
by modified traveling screens, a facility
would have to conduct continual
biological monitoring to demonstrate
compliance. A far more efficient way to
demonstrate compliance would be for
facilities to optimize the operation of
their technologies for their site-specific
conditions and identify the conditions
that distinguish proper operation at
their facility. The optimized operation
of the technology would be largely
demonstrated through the biological
data collection and studies required in
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the permit application at § 122.21(r)(4)
and (6)(i), including an impingement
technology performance optimization
study. Biological data collection should
follow the sampling protocols described
in section7 below.
The optimized operation documented
by the impingement technology
performance optimization study will
result in more than just meeting the
impingement mortality standard, and
results in a facility achieving the best
possible performance.93 The biological
data collection and analysis in the
impingement technology performance
optimization study will identify the
operating conditions that result in
optimized performance, such as fish
sluicing spray pressures, rotation speed
and frequency of the screens, angle of
the fish sluicing sprays, fish return
trough water flows, and fish return
trough location.94 The Director will then
establish these operating conditions as
permit conditions, along with an
equipment inspection condition to
assure proper functioning of the
technology. As long as the permit
conditions are met, the EPA does not
expect any biological compliance
monitoring will be required, unless
otherwise specified by the Director, for
example, for the protection of shellfish
or fragile species (see § 125.96(c)). Note
that EPA does not intend for facilities to
install closed-cycle cooling solely for
the purpose of meeting the IM
requirements.
6. Systems of Technologies as the BTA
for Impingement Mortality
In this method of compliance, a
facility must demonstrate a system of
technologies is employed that will meet
the impingement mortality standard.
This option will allow a facility the
flexibility to choose the systems
approach of technologies, management
practices, and operational measures it
will use to demonstrate compliance,
including but not limited to flow
reductions, intake location, behavioral
deterrents, unit closures, seasonal
operations, and newly installed velocity
caps. Like the compliance option for
modified traveling screens, the
optimized operation of the system of
technologies will be largely
93 As demonstrated by the numerous studies
included in the record for today’s final rule, many
facilities are able to achieve less than 10 percent
impingement mortality, a performance level
comparable to the impingement mortality of closedcycle cooling. Merely requiring facilities to achieve
a numerical performance standard through
modified traveling screens creates disincentives to
perform better.
94 EPA also requires the entrapment of organisms,
as well as organisms that are carried over the
screens, to be counted as impingement mortality.
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demonstrated through the biological
data collection and studies required in
the permit application at § 122.21(r)(4)
and (6)(ii). However, the analysis and
studies for combining the performance
of varied technologies is more involved.
If the system of technologies includes
credit for reductions in the rate of
impingement by the system, the
impingement technology performance
optimization study required at
§ 122.21(r)(6)(ii) will provide an
estimate of those reductions including
relevant supporting documentation. The
estimated reductions in rate of
impingement must be based on a
comparison of the facility’s system to a
once-through cooling system with a
traveling screen whose point of
withdrawal from the surface water
source is located at the shoreline of the
source waterbody. EPA expects Phase II
facilities will use information already
collected as part of their calculation
baseline (69 FR 41594, July 9, 2004). In
addition, the study must include two
years of biological data collection
demonstrating the rate of impingement
resulting from the system. For this
demonstration, data collection must be
conducted no less frequently than
monthly. The Director may establish
more frequent data collection or a longer
period of study.
If the system of technologies includes
credit for reductions in impingement
mortality already obtained at the
facility, the study must include two
years of monthly biological data
collection demonstrating the level of
impingement mortality the optimized
system achieves. Biological data
collection must be representative of the
impingement and the impingement
mortality at the intakes and should
follow the sampling protocols described
in section 7 below. The impingement
technology performance optimization
study must provide a description of any
sampling approach used in measuring
impingement mortality, including a
taxonomic identification to the lowest
taxon possible of all organisms to be
sampled; the method in which naturally
moribund organisms are identified and
taken into account; and the method in
which mortality due to holding times is
taken into account. In addition, the
study must describe how the location of
the cooling water intake structure in the
waterbody and the water column are
accounted for in the sampling locations.
EPA requires the entrapment of
organisms, as well as organisms that are
carried over the screen, to be counted as
impingement mortality.
If the system of technologies
specifically includes flow reduction to
reduce impingement, the impingement
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48375
§ 122.21(r). For the submerged offshore
location adjustment, fish density and
flow data show the offshore location
reduces the rate of impingement for all
species by 4,000 fish annually. For the
acoustical deterrent, performance data
show a reduction in the rate of
impingement of fish by 11,000
organisms annually. For purposes of
this example, assume none of the 15,000
fish are assumed to contribute to further
mortality; in other words, all of the fish
that avoided impingement in the first
place survive. Therefore, the facility has
reduced impingement by 15,000 fish
(i.e., sum of both submerged offshore
location and acoustical deterrent). The
facility then takes credit for this
reduction by adding the forgone
impingement to the denominator of the
percent IM calculations as follows:
95 Because a permit may be administratively
continued or may not be issued every 5 years, EPA
has specified 10 years rather than two permit cycles
to avoid facilities from taking credit for a unit
closure that potentially occurred decades prior.
96 EPA recognizes that facilities often examine the
combined effect of two or more technologies (e.g.,
deterrents and offshore location) within a single
study. In applying these provisions, the facility
could use the outcomes associated with the
combined performance of multiple technologies,
but this would result in permit conditions that
would also be combined.
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ER15AU14.001</GPH>
performance for a system of
technologies.
The example uses values that simplify
the calculations to better illustrate the
adjustments, and are not intended to
reflect values that EPA expects at any
facility. To simplify the example
further, the facility has only fish and
does not have shellfish in its source
waters. EPA has chosen a hypothetical
facility that examined each change in a
separate study.96 The hypothetical
facility intake is located at a submerged
offshore location, has an acoustical
deterrent, and installed variable speed
drives. For the purposes of this
example, the facility has completed
sampling at the forebay for two years as
part of § 122.21(r)(4) and (6). During the
most recent 12 months, the counts of
non-fragile species totals 40,000
impinged fish. During the 24-hour
holding period following each monthly
sample collection, the total fish that
died were counted, for a total of 12,000
dead fish for the preceding 12 months.
The facility then calculated the average
IM for the preceding 12 months at 30
percent as follows:
ER15AU14.000</GPH>
impingement reduction at the site. As
the basis for the Director’s
determination, the facility must
demonstrate that the system of
technology has been optimized to
minimize impingement mortality of all
non-fragile species. In addition to the
impingement technology performance
optimization study, the Director may
also use the biological source water
characterization and/or the entrainment
characterization studies in the permit
application. EPA expects the Director’s
decision will be informed by comparing
the impingement mortality data under
§ 122.21(r)(6)(ii) to the impingement
mortality performance standard that
would otherwise apply under
§ 125.94(c)(7).
In addition, the impingement
technology performance optimization
study requires documentation of the
percent impingement mortality
reflecting optimized operation of the
total system of technologies, operational
measures, and best management
practices and all supporting
calculations. The following example
illustrates how these provisions will
adjust for flow, location, and other
technologies in demonstrating the IM
To adjust the observed percent IM for
a submerged offshore location and
acoustical deterrent, the facility first
extracts information from its previously
conducted studies related to
performance and calculation baseline.
Alternatively, the facility could conduct
a performance study during the same
two year period in which it conducts its
biological data collection as part of the
permit application requirements at
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technology performance optimization
study must include two years of intake
flows, measured daily, as part of the
demonstration, and must describe the
extent to which flow reductions are
seasonal or intermittent. The rule
clarifies that credit for flow reductions
must result from actual reductions in
flow, therefore the AIF will be used as
a point of comparison, and not the DIF.
The study must document how the flow
reduction results in reduced
impingement, and how the reduction in
impingement has reduced the sitespecific impingement mortality. Today’s
final rule at § 125.98(f)(3)(iii) further
clarifies that credit in reduced
impingement or impingement mortality
resulting from unit closures will be
valid for a period of 10 years.95 This is
also reflected in permit application
requirements for an owner or operator
planning to retire the facility in the
current permit term at 40 CFR
122.21(r)(1)(ii)(F), or in the following
permit cycle at 40 CFR
122.21(r)(1)(ii)(G).
The Director must determine the
system of technologies, management
practices, and operational measures that
is the best technology available for
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
acoustical deterrents. The Director will
also establish monitoring requirements
for intake flow and velocity where such
measures are an important part of the
system of technologies, such as the case
of variable speed drives. For example, a
system that includes seasonal flow
reductions would likely have permit
conditions for flow monitoring. As long
as the permit conditions are met, the
EPA does not expect any biological
compliance monitoring will be required,
unless otherwise specified by the
Director (see § 125.96(c)).
In this method of compliance,
facilities are required to monitor to
demonstrate compliance with the
impingement mortality performance
standard at § 125.94(c)(7) by
demonstrating a 12-month average
mortality of 24 percent or less. The
facility is required to monitor at a
minimum frequency of monthly, unless
a greater frequency is specified by the
Director. For each monitoring event, the
facility would determine the number of
non-fragile organisms that are collected
or retained on sieve with a maximum
spacing of 0.56 inches (i.e., that are
impinged [I]), and the number that die
after impingement (i.e., impingement
mortality [IM]). The facility must
establish a post-impingement holding
period of 18 to 96 hours otherwise
specified by the Director. Under the
definition at § 125.92(b), all life stages of
fish and shellfish excludes specified
nuisance species from the totals for both
impingement and impingement
mortality. Also, as defined at
§ 125.92(q), latent mortality means the
delayed mortality of organisms that
were initially alive upon being
impinged or entrained but that do not
survive the delayed effects of
impingement and entrainment during
an extended holding period. Delayed
effects of impingement and entrainment
may be due to stresses that include but
are not limited to temperature change,
physical stresses, and chemical stresses.
The manner in which latent mortality is
counted must be identified in the
Entrainment Characterization Study at
§ 122.21(r)(9), and must also be counted
in the Impingement mortality
performance standard at § 125.94(c)(7).
Fish that are included in any carryover
from a traveling screen or removed from
a screen as part of debris removal must
be counted as impingement mortality.
Fish that are entrapped by the cooling
water intake system must be counted as
impingement mortality.
The 12-month average of
impingement mortality is calculated as
the sum of total impingement mortality
over 12 months divided by the sum of
the total impingement over the same 12
months, as shown by the following
equation:
Note that this equation would be
applicable to calculating the annual
average for the previous 12 months.
Although facilities will be conducting
biological monitoring monthly (or more
frequently) and reporting that data in
their discharge monitoring reports,
facilities are not required to meet a
monthly impingement mortality
performance standard. Therefore, in this
equation, IM is the sum of all
impingement mortality over the course
of the previous 12 months, and I is the
sum of all impinged fish for the
previous 12 months. If the facility’s
calculated annual average percentage
impingement mortality is less than the
12-month average performance
standard, it will be deemed to be in
compliance with the 12-month average
performance standard.
In establishing the monitoring
requirements, EPA expects any
approved monitoring protocols will
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7. Impingement Mortality Performance
Standard
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ER15AU14.003</GPH>
calculated each month for 12 months,
and the facility projects that the reduced
flow excludes an additional 8,000 fish
from impingement each year. Then the
facility would apply the reduction in
annual counts of impinged fish to the
denominator, as follows:
ER15AU14.002</GPH>
from flow monitoring that the volume of
cooling water flow has been reduced by
11 percent. In this example, assume the
flow reduction does not vary
considerably each month. The volume
of reduced flow multiplied by the
density of fish near the intake is
Thus, the facility’s site-specific
system of technologies including
optimized operation of acoustical
deterrents has a total system
performance of 19 percent annual
impingement mortality. This example is
intended to illustrate how facilities
would obtain credit for existing
technologies in a systems approach.
While this example includes acoustical
deterrents, it does not imply that
acoustical deterrents are an appropriate
technology for all facilities. EPA expects
a facility will use the required two
years’ worth of monthly biological data
collection and studies to conduct a
similar analysis for each month. The
minimum required data collection and
studies will result in annual average
performance calculations for 12
consecutive months. The facility will
use this information as part of its
demonstration to the Director.
If the Director determines the system
of technologies, management practices,
and operational measures is the best
technology available for impingement
reduction at the site, the Director will
establish specific operating conditions
as permit conditions, along with
appropriate equipment inspection
conditions to assure proper functioning
of each technology. For example, a
system with acoustical deterrents would
likely have permit conditions related to
frequency of tones, volume, location,
and frequency of operation of the
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In summary, calculating percent IM at
the forebay yields a 30 percent IM, and
then applying the performance for
existing technologies shows the
effective percent IM is actually 22
percent. Next, to adjust for the variable
speed drives, the facility has determined
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48377
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consider the entire daily and (where
appropriate) tidal cycles over which
data collection should occur. Typically,
facilities have collected impingement
samples continuously for 6 or 8 hours
and repeated this cycle to cover an
entire 24-hour period. Stratifying
collection in this manner allows an
analysis of the diel variation exhibited
by many aquatic organisms, which may
be important. EPA also expects the
approved monitoring protocols will
ensure that sampling occurs during
periods of representative intake flow
and not during periods of non-peak flow
or scheduled outages.
The ideal point to measure
impingement mortality is the location
where organisms are returned to the
waterbody. However, for ease of
sampling and access, EPA envisions that
most facilities will collect samples from
the fish return system(s) at some point
before the fish return discharge point.
According to the studies in EPA’s
database, EPA envisions that facilities
will either (1) divert some or all of the
flow from the fish return into a fish
collection and holding area, or (2) place
a net or basket fitted with 3⁄8-inch mesh
spacing in the fish return and collect
and transfer the retained organisms to a
holding tank. While nearly all studies in
the record report the use of 3⁄8-inch
mesh spacing, as discussed below, the
final rule allows the use of other sieve
and mesh spacings with a 0.56 inch
maximum opening. A facility will
handle the organisms in the collection
device as little as possible and transfer
them to a holding area with conditions
as close as practicable to the source
water. The facility will count the
number of organisms in the holding area
and subsequently hold the sample using
proper technique 97 to maintain the
health of the collected organisms.98 At
a period of 18 to 96 hours after the
initial collection, the facility will count
the number of dead organisms and
determine the percentage of organisms
that died in comparison to the total
number of organisms measured initially.
Any organisms not collected by the fish
handling and return system, such as
entrapped organisms, organisms in the
carryover of a traveling screen, or
organisms collected by a high-pressure
wash and sent to debris bins, will be
counted as 100 percent impingement
mortality. The facility will keep records
of this information and compare its
result to the impingement mortality
performance standard at § 125.94(c)(7).
As explained in Section VI, the
impingement mortality restrictions in
the final rule are based on the operation
of a modified traveling screen with a
fish return. Because EPA wants to
ensure that a facility’s monitoring plan
is consistent with the technical basis for
today’s requirements, EPA is requiring
facilities to monitor impingement
mortality using a sample that has been
passed through a sieve or net with no
more than 0.56 inches maximum
opening, so that only organisms that do
not pass through this mesh size are
counted.99 In doing so, facilities would
retain (and therefore count) only
organisms that would have been
impinged on a 3⁄8″ mesh screen, which
was the technological basis used for
developing the impingement mortality
performance standard.100 Facilities
could similarly apply a ‘‘hypothetical
net’’ in that they could elect to count
only organisms that would not have
passed through a net with mesh
openings less than 0.56 inches. For
example, a facility that uses a fine-mesh
screen of 0.5 mm or diverts the flow
directly to a sampling bay will need to
count only organisms that remain if the
flow passed through a net, screen, or
debris basket fitted with 3⁄8-inch mesh
spacing. EPA further expects the
impingement mortality restrictions
could be applied to other fish protection
technologies and provides a compliance
route for future technologies that are
better performing.
In today’s rule, EPA is including
provisions for reduced biological
monitoring. EPA determined that
monthly monitoring at a minimum is
appropriate for at least the first full
permit term. In permit terms subsequent
to the first permit issued under today’s
rule, the owner or operator may request
the Director to reduce monitoring
requirements under § 125.95(c). EPA
expects the Director would reduce
monitoring requirements as appropriate,
if the facility demonstrates that its
operational and biological conditions
have remained the same. Given that the
source waterbody may change over time
(including hosting different or increased
numbers of individuals or species), the
biological characterization required at
§ 122.21(r)(4) including two years of
data serves to alert interested parties as
to the status of the waterbody and any
changes in the biology of the waterbody.
Under the compliance option (7)
impingement mortality performance
standard, EPA expects that as new
technologies are successfully
demonstrated, in subsequent permits
facilities would request less frequent
monitoring, or be able to incorporate
such technologies in a permit
application choosing a § 125.94(c)(6),
system of technologies, demonstration.
Once the Director has determined the
technology is fully demonstrated for
that site, the facility would therefore
reduce their biological data collection to
the minimum required by the permit
application at § 122.21(r) and any
monitoring the Director determines to
be appropriate for verifying permit
operating conditions.
97 EPA recognizes that at present, there are no
standard methods for conducting impingement and
entrainment studies and that there can be
variability in designing a sampling plan between
sites. However, some elements should be
incorporated into any sampling plan, as outlined in
DCN 10–6708.
98 Facilities that divert the flow directly would
similarly pass the flow through a net or debris
basket fitted with 3⁄8-inch mesh spacing or would
count only organisms that would have been
collected with such a basket or net.
99 For a discussion of how EPA has changed its
view of screen mesh size, see Section III of the
proposed rule (76 FR 22188, April 20, 2011). EPA
recognizes that smaller organisms that previously
would have passed through a screen and been
entrained might be ‘‘converted’’ by a fine mesh
screen to an impinged organism; because organisms
size would affect the rate of mortality, EPA has
chosen not to rely on definitions of impingement
and entrainment based on a physical process, but
instead to define impingement mortality and
entrainment mortality based on organisms sizes.
100 EPA’s analysis of impingement survival rates
is based on data from facilities with 3⁄8″ mesh
screens; the performance standard may be applied
differently at facilities with smaller mesh size.
Therefore, these standards do not provide a
disincentive to facilities from using finer-meshed
screens (i.e., screens with a mesh opening smaller
than 3⁄8 inch) on their traveling screens. As long as
the organisms that are large enough to have been
impinged on a coarse mesh screen achieve the
required survival rates, the facility will be
considered to meet the impingement mortality
requirements.
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8. Additional Measures
Sections § 125.94(c)(8) and (9) provide
the Director discretion to require
additional measures to protect shellfish
and fragile species. An example of
shellfish protection measures is a barrier
net, including seasonal deployment of
such nets. An example of additional
protection measures for fragile species is
an acoustical deterrent system.
9. Summary
The following Exhibit VIII–4
summarizes the monitoring
requirements for impingement mortality
by compliance approach alternative.
The Director has the discretion to
require additional monitoring under
§ 125.96(c) and (d). Since all permits
must have requirements for visual
inspections, these are not included in
the exhibit.
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EXHIBIT VIII–4—SUMMARY OF MONITORING REQUIREMENTS FOR IMPINGEMENT MORTALITY
Compliance approach
Type of monitoring
Closed-cycle recirculating system ..................................................
Velocity (DIF) .................................................................................
Velocity (AIF) ..................................................................................
Velocity cap ....................................................................................
Modified traveling screens .............................................................
Systems of Technologies ...............................................................
Impingement mortality performance standard ...............................
Intake, makeup and blowdown flows (or cycles of concentration)
None ..............................................................................................
Velocity (measured or calculated from flow) .................................
Intake flow ......................................................................................
TBD a ..............................................................................................
TBD b ..............................................................................................
Biological monitoring ......................................................................
Frequency
Daily.
None.
Daily.
Daily.
TBD a.
TBD b.
Monthly.
a Monitoring
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b The
requirements may vary, depending on the permit-specific operating conditions.
monitoring requirements are based on the technologies employed. For example, seasonal flow reduction would require flow monitoring.
G. What monitoring is required for
entrainment?
Where the Director establishes
entrainment controls, the Director is
required to establish monitoring
requirements. The final rule requires
that the permit application studies at
§ 122.21(r) be submitted for each permit
renewal. For facilities that withdraw
125 mgd AIF, EPA expects that the
Director will use these studies,
including the Source Water Baseline
Biological Characterization Data at
§ 122.21(r)(4) and the Entrainment
Characterization Study at § 122.21(r)(9),
as a basis for any monitoring
requirements for entrainment. To
facilitate the determination of
entrainment requirements for facilities
below 125 mgd AIF, a Director may
require the owner or operator to submit
some or all of the study requirements at
§ 122.21(r)(9) through (13) or variations
thereof. The Director may require
additional monitoring necessary to
demonstrate compliance with
§ 125.94(d), additional measures to
protect Federally-listed endangered and
threatened species and designated
critical habitat requirements under
§ 125.94(g), interim standards under
§ 125.94(h), and any more stringent
standards under § 125.94(i).
Under § 125.96(d), existing facilities
with new units are required to conduct
compliance monitoring to demonstrate
flow reductions consistent with the
requirements of § 125.94(e)(1), or
equivalent impingement and
entrainment reductions. The Director
may establish flow monitoring or
monitoring of cycles of concentration as
discussed in Section F. Such measures
will be used to document that the
facility has minimized make-up and
blowdown flows.
For facilities complying under
§ 125.94(e)(2), the frequency of
monitoring will be determined by the
Director and will vary depending on the
facility’s chosen method of compliance.
To meet requirements under
§ 125.94(e)(2), facilities must measure
AIF to establish a site-specific baseline
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without any new technologies or
employing additional operational
measures. The facility must also
measure the density of entrainable
organisms (ED) at a proximity to the
intake that is representative of the
entrainable organisms present without
the cooling water intake structure.
Samples will be collected over a 24hour period to monitor each species as
required by the Director. Samples will
be collected no less than biweekly
during the primary period of
reproduction, larval recruitment, and
peak abundance identified during the
Source Water Baseline Biological
Characterization Data required under
§ 122.21(r)(4). Samples will be
representative of the cooling water
intake when the structure is in
operation. In addition, sufficient
samples must be collected to allow for
calculation of 12-month average
entrainment levels. The sampling will
measure the total count of entrainable
organisms or density of organisms,
unless the Director approves of a
different metric for such measurements.
If the abundance varies seasonally, the
Director may require several
measurements of entrainment through
the year, from which a 12-month
average can be calculated.
For the purpose of today’s rule,
entrainable is defined as any organism
that passes through a sieve with a
maximum opening of 0.56 inches. As
discussed in Section VI, this would
avoid any confusion as to which
organisms are subject to which
standards (i.e., requirements for IM or
requirements for E). The regulation
specifies that the sieve used for
calculating impingement must be the
same sieve used for calculating
entrainment, so all organisms are
accounted for. Facilities can also
monitor the latent entrainment mortality
in front of the intake structure.
Entrainable organisms passing through
the cooling water intake structure are to
be counted as 100 percent entrainment
mortality unless the facility
demonstrates to the approval of the
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Director that the mortality for each
species is less than 100 percent.
In addition, facilities must monitor
the AIF for each intake. The AIF must
be measured at the same time as the
samples of entrainable organisms are
collected.
The following equation illustrates
how to calculate a baseline level of
entrainment (EB):
EB = ED × AIF
Performance commensurate with a
closed-cycle recirculating system (ECCRS)
can therefore be determined by reducing
EB by the percentage of flow reduced
through the use of a closed-cycle
cooling system. For example, a facility
withdrawing make-up water from a
freshwater source (as described above,
would achieve a reduction of 97.5
percent) will calculate its performance
as follows:
ECCRS = (EB) × (100 ¥ 97.5) ÷ 100
The resulting value, ECCRS, is the
required level of entrainment
performance (as measured by
entrainment mortality). The facility
could implement any combination of
flow reduction, technologies, and
operational measures to meet the
required level of entrainment
performance. For example, a facility
withdraws 200 mgd AIF from a
freshwater river. The annual average
entrainment density in the proximity of
the intake structure is 6,400 organisms
per 100 cubic meters withdrawn.
EB = ED × AIF
6,400 organisms/100m3 × (100m3/26,417
gallons) × 200,000,000 gallons per
day
= 48 × 106 organisms per day
The maximum entrainment mortality
for a closed-cycle cooling system is thus
ECCRS = (EB) × (100 ¥ 97.5) ÷ 100
= (48 × 106 organisms per day) × (100
¥ 97.5) ÷ 100
= 1.2 × 106 organisms per day.
The minimum required level of
performance for demonstrating
entrainment mortality at a comparable
level (EC) to a closed-cycle cooling
system is the level corresponding to 90
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percent 101 of the reduction that a
facility with a closed-cycle cooling
system could achieve:
EC = (EB) × (100 ¥ (97.5 × .9)) ÷ 100
= (48 × 106 organisms per day) × (100
¥ (97.5 × .9)) ÷ 100
= 5.88 × 106 organisms per day.
The Director may require additional
monitoring necessary to demonstrate
compliance with § 125.94(d),
endangered species requirements under
§ 125.94(g), interim standards under
§ 125.94(h), and any more stringent
standards under § 125.94(i).
In addition, all facilities will either
conduct visual inspections or employ
remote monitoring devices when the
cooling water intake structure is in
operation. The facility will conduct
such inspections at least weekly to
ensure that any technologies installed to
comply with § 125.94 are maintained
and operated to ensure that they will
continue to function as designed. EPA is
aware that for some facilities, this
requirement could pose a feasibility
challenge (for example due to ice cover
in the winter season, inability of divers
to see through more than a few inches
of water, or certain intakes in deep
water). The rule, therefore, authorizes
the Director to establish alternative
procedures. See § 125.96(e).
H. What reports am I required to
submit?
1. Status Reports
If the Director establishes a
compliance schedule, the Director will
also establish any status reporting
requirements. These reports may
include updates on biological
monitoring, technology testing results,
construction schedules, or other
appropriate topics and serve as
milestones for the facility and the
Director to evaluate the progress of the
facility in meeting BTA. See
§§ 125.94(b) and (d) and 125.97(b).
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2. Monitoring Reports
The required reports for monitoring
activities are similar to requirements
that are already in NPDES permits for
effluent discharges. EPA expects such
reports to be included with the
Discharge Monitoring Reports (DMRs) or
equivalent state reports. Facilities
would report any monitoring,
demonstration, and other information
101 The 90 percent metric is required in Phase I,
and adopted here because new units are subject to
requirements similar to the Phase I requirements.
Phase I, at 40 CFR 125.86 specifies, ‘‘reduced both
impingement mortality and entrainment of all life
stages of fish and shellfish to 90 percent or greater
of the reduction that would be achieved through
§ 125.84(b)(1) and (2).’’
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required by the permit sufficient to
determine compliance with the permit
requirements established under
§ 125.94, as well as any other
monitoring requirements specified in
the permit. See 40 CFR 125.97(a).
Entrainment requirements will be
determined on a site-specific basis by
the Director. For facilities that are
required to install entrainment controls,
EPA expects that these facilities would
generally conduct ongoing flow (or
other) monitoring as verification that
entrainment has been reduced. See
§ 125.96(b) and (c). However, the
Director may require facilities to report
entrainment monitoring and analysis,
including:
• The compliance measurement
location.
• A description of the flow
monitoring procedure.
• Documentation of flow reductions.
• Any other monitoring requirements
specified in the permit.
The report must include any
monitoring and analysis required as part
of additional measures for threatened
and endangered species, shellfish, or
fragile species as established by the
Director. Further, your report will
include documentation of cooling water
that is process water, gray water, waste
water, reclaimed water, or other water
reused as cooling water in lieu of water
obtained by an intake. The Director will
evaluate these reports for compliance
with permit requirements as
appropriate.
3. Annual Certifications
Today’s rule requires a facility to
submit an annual certification statement
signed by the responsible corporate
officer. See § 125.97(c). In most cases,
the statement would indicate the
information from the previous statement
is still pertinent. If modifications were
made to the facility that impacts cooling
water withdrawals or operation of the
cooling water intake structures, the
statement would indicate such, and the
facility would submit revisions to the
information required in their permit
application at § 122.21(r).
4. Other Reporting
In addition, EPA notes that
supplemental reporting may be required
under the ESA as part of any incidental
take statement or permit (50 CFR
402.14(i)) or a section 10 permit (50 CFR
222.307) that is issued by the United
States Fish and Wildlife Service or the
National Marine Fisheries Service to
ensure compliance with the Endangered
Species Act.
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I. What records will I be required to
keep?
As described at § 125.97(d), facilities
are required to keep all permit
applications, status, monitoring, and
annual reports and related supporting
information and materials at least until
the subsequent permit is issued.
Facilities might wish to keep records for
a longer period to maintain a complete
regulatory history of the facility. For
example, existing source water
biological studies submitted with a
facility’s permit application could
contain data that has been collected in
the past 10 or more years. When the
Director has approved a request for
reduced information collection in the
permit application, the rule requires
that records of submissions that are part
of a previous permit application be kept
until the subsequent permit is issued.
See § 125.95(e). Records supporting the
BTA determination for entrainment
must be kept until such time as the
Director revises the determination. The
Director may establish additional
record-keeping requirements in the
permit, such as additional records
documenting compliance monitoring,
data collection, or more frequent
reports.
Facilities must also keep records of all
data used to complete the permit
application and show compliance with
the requirements of § 125.94, any
supplemental information developed
under § 125.95, and any compliance
monitoring data submitted under
§ 125.96. The Director may require that
these records be kept for a longer
period.
J. What are the respective Federal, State,
and Tribal roles?
Today’s final rule affects authorized
State and Tribal NPDES permit
programs. Under 40 CFR 123.62(e), any
existing approved section 402
permitting program must be revised to
be consistent with new program
requirements within one year from the
date of this promulgation, unless the
NPDES-authorized State or Tribe must
amend or enact a statute to make the
required revisions. If a State or Tribe
must amend or enact a statute to
conform to today’s final rule, the
revision must be made within two years
of this promulgation. States and Tribes
seeking new EPA authorization to
implement the NPDES program must
comply with the requirements when
authorization is approved. This final
regulation does not alter State authority
under section 510 of the CWA.
In addition to updating their programs
to be consistent with today’s final rule,
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States and Tribes authorized to
implement the NPDES program are
required under NPDES State program
requirements to implement the cooling
water intake structure requirements of
subpart J following promulgation of the
final regulations. The permit
requirements in this final rule must be
implemented upon the first issuance or
reissuance of permits following
promulgation. Duties of an authorized
State or Tribe under this regulation are
described throughout this section and
include reviewing permit application
materials, determining appropriate
requirements, reviewing monitoring and
reporting data, and assessing whether a
facility is complying with the final
rule’s requirements.
EPA recognizes that some States have
invested considerable effort in
developing and implementing section
316(b) permits. This final regulation at
§ 125.98(b) and (g) allows the Director
flexibility where there are ongoing
permit proceedings or where a BTA
determination has already been made
based on substantially the same
information required at § 122.21(r).
EPA will implement these
requirements where States or Tribes are
not authorized to implement the NPDES
program.
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K. Protection of Endangered and
Threatened Species and Designated
Critical Habitat
1. Existing Requirements Under Section
9 of the Endangered Species Act
The ESA imposes duties not just on
Federal agencies but also on other
entities. Section 9 of the ESA
specifically provides that it is unlawful
for any person to ‘‘take’’ any endangered
species of fish or wildlife except under
defined circumstances. The Services
(National Marine Fisheries Service or
U.S. Fish and Wildlife Service) may
provide an exemption to the prohibition
on take in one of two ways. Take may
be permitted under section 10 of the
ESA (16 U.S.C. 1539) or the Services
may provide an exemption for take that
is incidental to otherwise legal activity
through a statement that is included
with the Services’ biological opinion
developed during Federal agency
consultation. (16 U.S.C. 1536(o)) The
incidental take statement specifies the
terms and conditions necessary to
implement reasonable and prudent
measures which minimize incidental
take.
Nothing in today’s rule changes the
existing, independent obligations of the
facilities subject to this rule under
section 9 of the ESA. Unless exempted
by an incidental take statement or
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section 10 permit, facilities have been
prohibited from taking (for example,
harming or killing) endangered species
of fish or wildlife. In order to obtain a
section 10 permit, the facility would be
required to develop a Habitat
Conservation Plan (HCP), which is a
mandatory component of an incidental
take permit application. The HCP must
specify the anticipated effects of the
proposed taking, how those impacts will
be minimized or mitigated, the
alternative actions to the taking that the
applicant considered, the reasons for
not utilizing those alternatives, and
other necessary or appropriate measures
that the Secretary may require.
2. EPA’s Consultation Under Section 7
of the ESA
Under section 7 of the Endangered
Species Act, each Federal agency must
insure that any action authorized,
funded, or carried out by the agency ‘‘is
not likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
habitat of such species which is
determined by the Secretary, after
consultation as appropriate with
affected States, to be critical. . . .’’ 16
U.S.C. 1535(a)(2). In the case of any
Federal agency action subject to the ESA
that may affect listed species or critical
habitat, the Federal agency must consult
with the concerned offices with
responsibilities under the ESA,
specifically NMFS and/or FWS. 50 CFR
402.14(a).
In July 2012, EPA began informal
consultation with the NMFS about the
proposed section 316(b) regulations. In
October 2012, EPA began informal
consultation with the FWS. EPA
prepared a draft biological evaluation of
the effects of this rule on threatened and
endangered species and in it concluded
that the rule was not likely to adversely
affect listed species or designated
critical habitat. EPA was unable to
obtain the Services’ concurrence on
EPA’s ‘‘not likely to adversely affect’’
finding. In June 2013, EPA requested
formal consultation with the Services
under the Endangered Species Act and
with that request submitted a final
biological evaluation to the Services.
EPA completed consultations with the
Services and has included the Services’
biological opinion and associated
documents in the record for this
rulemaking.
Among the organisms potentially
subject to impingement and entrainment
at cooling water intake structures are
those that are listed as threatened and
endangered. In addition to impinging or
entraining threatened and endangered
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species, operation of CWISs may also
adversely affect their critical habitat.
Today’s rule includes a number of
provisions specifically designed to
address incidental take of all federallylisted threatened and endangered
species and to insure that the rule is not
likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat. These provisions are
described below.
The regulatory model adopted by EPA
in the Phase I rule and later in the
subsequently-withdrawn Phase II rule
for large existing power producing
facilities provided a structure to address
and minimize adverse impacts to
threatened and endangered species.
EPA’s approach required that facilities
subject to the 316(b) rules, at the permit
application stage of the permitting
process must, among other things,
identify threatened and endangered
species that might be subject to
impingement and entrainment in order
to ensure that the permitting authority
would have the requisite information on
which to make a decision about the
need for controls to protect threatened
and endangered species. See 40 CFR
122.21(r)(4).
The Phase I and Phase II regulations
specifically authorized the permit writer
(referred to as the ‘‘Director’’ in EPA’s
permitting regulations) to adopt
measures designed to protect threatened
and endangered species. Thus, for
example, EPA’s Phase I regulations for
cooling water intake structures at new
facilities require that, under one of the
compliance options, an owner or
operator must select and implement
impingement and entrainment
minimization measures ‘‘if there are
threatened or endangered or otherwise
protected Federal, State or Tribal
species.’’ Moreover, the permit writer
may require additional impingement
and entrainment reduction measures if
the permit writer determines that the
facility after meeting the required
performance standard would ‘‘still
contribute unacceptable stress to the
protected species, critical habitat of
those species or species of concern.’’ 40
CFR 125.84(b)(4) & (5).
The Phase II regulation continued the
general approach followed in the Phase
I regulation for protection of threatened
and endangered species. Permit
applicants needed to submit the same
information on threatened and
endangered species required in the
Phase I rule. In addition, building on the
earlier information requirements, the
regulation also would have required
facilities selecting and implementing
certain of the alternative BTA
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compliance measures to submit a
Comprehensive Demonstration Study
that, among other things, characterized
impingement and entrainment at the
facility. Further, the rule would have
required a facility to submit an
Impingement Mortality and/or
Entrainment Characterization Study that
included taxonomic identification,
characterization and documentation of
current impingement mortality and
entrainment of all life stages of fish,
shellfish and any species protected
under Federal, State or Tribal law
(including threatened or endangered
species). 69 FR 41687–88, July 9, 2004.
In addition, the Phase I and II rules
included a requirement for the facility
to include in their permit application
documentation of any public
participation or consultation with
Federal or State agencies on impacts of
their cooling water intake structure on
threatened and endangered species. The
regulation then would have required the
permit writer to determine appropriate
permit requirements and conditions.
EPA noted that its existing NPDES
permitting regulations reference a
number of Federal laws that might
apply to Federally-issued NPDES
permits, including the Endangered
Species Act. 69 FR 41643–44, July 9,
2004.
Threatened and endangered species
were important considerations in the
proposal to today’s rule and were of
particular concern to the EPA. The
preamble to the proposal reflects at a
number of points that, in looking at the
benefits of different regulatory options,
EPA attempted to assess the benefits to
threatened and endangered species. See
76 FR 22174, 22197, 22207. The
proposal also noted the importance of
obtaining information for the permit
writer about potential entrainment
reductions. Thus, the proposal would
have required certain facilities to
develop and submit with their permit
application detailed information on
their operations as well as an
engineering study of the technical
feasibility and incremental costs of
candidate entrainment mortality control
technologies and a detailed discussion
of the magnitude of non-water quality
benefits. EPA proposed that some
facilities would need to submit an
Entrainment Characterization Study that
included an entrainment mortality data
collection plan that would indicate, at a
minimum, taxonomic identification,
latent mortality identification,
documentation of all methods, and
quality assurance/quality control
procedures or sampling and data
analysis appropriate for a quantitative
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survey. Under the proposal, EPA would
also have required peer review of the
entrainment mortality data collection
plan. Peer reviewers would be selected
in consultation with the Director who
may consult with EPA and Federal,
State, and Tribal fish and wildlife
management agencies with
responsibility for fish and wildlife
potentially affected by the cooling water
intake structure(s). Further, facilities
with greater than 125 mgd AIF would
complete an entrainment study. The
entrainment study could include
information already collected to meet
the Phase II requirements at
§ 122.21(r)(2)–(r)(4) before those
requirements were suspended.
EPA and the Services have completed
consultations on the rule. EPA has
received the final biological opinion and
associated documents from the U.S.
Fish and Wildlife Service and the U.S.
National Marine Fisheries Service and
has included them in the record for the
rule. The Services have concluded that
the rule is not likely to jeopardize the
continued existence of listed species or
result in the destruction or adverse
modification of designated critical
habitat.
3. Final Rule Provisions Related to
Threatened and Endangered Species
As noted previously, establishing
standards for cooling water intake
structures to minimize impingement
and entrainment of all aquatic
organisms will promote and enhance
protection of T&E species. In addition,
the rule contains a number of provisions
that specifically concern T&E species;
these provisions were developed in light
of EPA’s consultation with the Services
and were established by EPA to insure
that this rule is not likely to jeopardize
listed species or result in the
destruction or adverse modification of
designated critical habitat. To be clear,
the ESA provisions of the rule extend to
all listed T&E species, not just fish and
shellfish.
The treatment of T&E species in
today’s rule follows directly from the
Agency’s longstanding approach as well
as from EPA’s proposed 2011 rule
which indicated the EPA’s intention to
address protection of T&E species. The
rule adopts the identical approach
followed in the Phase I and II rules,
while adding some refinements to that
earlier model which EPA discussed in
the proposed rule. First, it adopts the
proposed requirements that insure an
adequate information base is submitted
to the permit writer. As was the case
with the Phase I and withdrawn Phase
II rule, apprising the permit writer of the
presence and extent of T&E species at a
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facility’s intake continues to be an
important element of the permit
application requirements for existing
facilities. While retaining the existing
permit application requirement of 40
CFR 122.21(r), EPA has included in
today’s rule a provision at § 125.95(f)
that requires a facility in its permit
application to identify all Federallylisted threatened and endangered
species and designated critical habitat
that are or may be present in the action
area. The action area can generally be
considered the area in the vicinity of the
cooling water intake structure. The
evaluation is to be based on information
readily available to the facility at the
time of the permit application. In
addition, the rule requires the largest
withdrawing facilities to provide
taxonomic identification of species in
the vicinity of the intake, thus providing
a mechanism for facilities to determine
more accurately their potential impact
on protected species.
The rule requires that the Director
transmit all permit applications to the
Services upon receipt. The rule provides
the Services with 60 days to review the
permit application. This 60 day review
takes place prior to the public notice of
the State or Tribe’s draft or proposed
permit. EPA expects that the Services
will respond within 60 days and
provide to the Director (1) any
corrections to the list of Federally-listed
threatened and endangered species and
critical habitat included in the permit
application, (2) any measures that the
Services recommend (including
monitoring and reporting) for the
protection of listed species, including
any measures that would minimize any
incidental take of listed species, and/or
avoid likely jeopardy to a listed species
or destruction or adverse modification
of critical habitat, and/or (3) notify the
State or Tribe that the Service(s) have no
corrections to the list of species and
critical habitat and/or that the Service(s)
do not recommend any control
measures. The Services’ 60 day review
period does not constrain the Director’s
ability to process the applicant’s permit
application; however, the Director may
not propose/publish the draft permit
until the 60 day review period has
ended, unless the Director has received
the Services’ response prior to that time.
In addition, the Services will receive,
pursuant to existing regulations at 40
CFR 124.10(c)(1)(iii) and (e), all permit
applications, as well as fact sheets or
statements of basis (for EPA-issued
permits), draft permits, and public
notices for all permits. At this stage of
the process, the Services will have the
opportunity to review the draft permit
and other materials and provide any
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additional input or suggested control
measures to address effects to listed
species or critical habitat. Together, the
existing and new requirements related
to transmittal of permitting documents
to the Services will ensure that the
Services have the opportunity to
provide information and
recommendations to the permit writer
relating to any facility that may affect
listed species. This information will be
part of the public record for the
permitting decision and the Director
would be required to consider it as a
relevant factor, along with all of the
other relevant factors, in deciding what
conditions to establish in the permit.
Further, as explained in the MOA
between EPA and the Services
discussed elsewhere in today’s notice,
EPA will use the full extent of its CWA
authority to object to a permit where
EPA finds that issuance of the permit is
likely to jeopardize the continued
existence of a listed species or result in
the destruction or adverse modification
of designated critical habitat. The rule’s
requirements insure a full vetting of
information and concerns in the
permitting process that must be
considered by the Director. These
requirements, coupled with the EPA’s
commitment to exercise its oversight
authority, insure that today’s rule is not
likely to jeopardize the continued
existence of a listed species or result in
the destruction or adverse modification
of designated critical habitat.
Among the recommendations that
may be made by the Services to the
facility and the Director are measures to
minimize incidental take. EPA expects
that any measures the Services
recommend to minimize incidental take
will be consistent with ESA regulations
and guidances concerning reasonable
and prudent measures. As stated in the
ESA regulations under 50 CFR
402.14(i)(2), ‘‘Reasonable and prudent
measures, along with the terms and
conditions that implement them, cannot
alter the basic design, location, scope,
duration, or timing of the action and
may involve only minor changes.’’ The
Endangered Species Handbook (FWS
and NMFS, 1998) explains that:
‘‘Measures are considered reasonable
and prudent when they are consistent
with the proposed action’s basic design
(e.g., narrowing of disturbed right-ofway at known species locations),
location (e.g., temporary storage of
equipment or other materials), scope,
duration, and timing. Reasonable and
prudent measures and terms and
conditions should be developed in
coordination with the action agency and
applicant, if any, to ensure that the
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measures are reasonable, that they cause
only minor changes to the project, and
that they are within the legal authority
and jurisdiction of the agency or
applicant to carry out.’’
Installation of closed-cycle cooling is
a major design alteration of a facility
involving significant design and
construction activities (the range of
costs associated with closed-cycle
cooling is described elsewhere in
today’s notice). Because installation of
closed-cycle cooling does alter the basic
design of a facility and would involve
more than minor changes, as described
in the Services’ regulations and
Handbook, EPA does not expect that
installation of closed-cycle cooling
would be specified as a measure solely
for purposes of minimizing incidental
take. The final rule at § 125.98(j)
provides that nothing in this rule
authorizes the take of threatened or
endangered species of fish or wildlife.
However, the Services may exempt take
through an incidental take statement
issued pursuant to ESA section 7(o) or
a permit under ESA section 10. See 16
U.S.C. 1536 (o) and 16 U.S.C. 1539.
This Clean Water Act rule cannot
authorize take and does not purport to
do so (nor can NPDES permits authorize
take prohibited under the ESA).
Accordingly, under § 125.98(b)(1), the
permit writer, including EPA, must
include, in the 316(b) permit
requirements, standard language that
states the permit does not authorize the
take of Federally-listed threatened and
endangered species. In addition, under
§ 125.96(g) (additional monitoring
requirements) and § 125.97(g)
(additional reporting
requirements),where the Director
requires additional measures to protect
listed species, monitoring and reporting
requirements associated with those
measures will be included in the permit.
4. EPA Oversight of State-Issued NPDES
Permits To Protect Threatened and
Endangered Species
In 2001, the EPA, FWS, and NMFS
signed a Memorandum of Agreement
(MOA), (66 FR 11202, Feb. 22, 2001)
with the objective of enhancing
coordination between the agencies and
to assist the agencies in executing their
respective responsibilities under the
Clean Water Act and Endangered
Species Act. The MOA reflects, in part,
the EPA’s longstanding commitment to
overseeing the operation of state NPDES
programs to ensure protection of
endangered species with existing
regulatory requirements. The EPA
reaffirms its commitment to ensure
coordination of the EPA’s and Services’
programs and appropriate protection of
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listed species, and EPA will follow the
procedures in the MOA in overseeing
implementation of this rule.
The MOA committed the EPA to a
number of specific actions that are
pertinent to today’s rule. Under the
MOA, EPA committed, when contacted
by the Services, to coordinate with the
Services and the State/Tribe during the
permit development process, in order to
ensure that permits will comply with all
applicable CWA requirements. One way
in which coordination between EPA and
the Services is facilitated is through the
exchange of information about permits.
The MOA facilitates such information
exchange, as do EPA’s NPDES permit
regulations at 40 CFR 124.10, that
preceded the MOA. These regulations
require the Director to provide public
notice and a comment period for draft
permits, and to notify persons identified
at 40 CFR 124.10(c)(1)(iii) and (iv). Such
persons specifically include Federal and
State agencies with jurisdiction over
fish, shellfish, and wildlife resource and
over coastal zone management plans
and thus include the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service.
EPA’s commitment to coordinate
effectively with the Services includes
following the procedures in section
IX.A.6 and 7 of the MOA:
EPA may make a formal objection,
where consistent with its CWA
authority, or take other appropriate
action, where EPA finds that a State or
Tribal NPDES permit will likely have
more than minor detrimental effect on
Federally-listed species or critical
habitat.
For those NPDES permits with
detrimental effects on Federally-listed
species or critical habitat that are minor,
it is the intention of the Services and
EPA that the Services will work with
the State or Tribe to reduce the
detrimental effects stemming from the
permit. For those NPDES permits that
have detrimental effects on Federallylisted species or critical habitat that are
more than minor, including
circumstances where the discharge fails
to ensure the protection and
propagation of fish, shellfish and
wildlife, and where the State or Tribe
and the Services are unable to resolve
the issues, it is the intention of the
Services and EPA that EPA would work
with the State or Tribe to remove or
reduce the detrimental impacts of the
permit, including, in appropriate cases,
by objecting to and Federalizing the
permit where consistent with EPA’s
CWA authority.
EPA will use the full extent of its
CWA authority to object to a State or
Tribal permit where EPA finds (taking
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into account all available information,
including any analysis conducted by the
Services) that a State or Tribal permit is
likely to jeopardize the continued
existence of any listed species or result
in the destruction or adverse
modification of critical habitat.
EPA may review or waive review of
draft State or Tribal NPDES permits (40
CFR 123.24(d)). EPA will work with the
Services through the local/regional
coordinating teams to help determine
which categories of permits should be
reviewed for endangered species
concerns. If EPA finds that a draft
permit has a reasonable potential to
have more than a minor detrimental
effect on listed species or critical
habitat, and review of a draft permit has
been waived, EPA will withdraw this
waiver during the public comment
period (see 40 CFR 123.24(e)(1)).
The grounds for EPA’s exercise of its
discretionary authority to object to State
or Tribal permits are described in the
NPDES regulations at 40 CFR 123.44.
These include that the proposed permit
fails to comply, or to ensure compliance
with, any applicable requirement of this
part, for example, that a permit
application did not contain information
sufficient to demonstrate that the permit
will ensure compliance with applicable
requirements. See 40 CFR 123.44(c)(1).
If EPA objects to a NPDES permit
under the MOA, EPA will follow the
permit objection procedures outlined in
40 CFR 123.44 and coordinate with the
Services in seeking to have the State or
Tribe revise its permit. A State or Tribe
may not issue a permit over an
outstanding EPA objection. If EPA
assumes permit issuing authority for a
NPDES permit, EPA will consult with
the Service prior to issuance of the
permit (as a Federal action) as
appropriate under section 7 of the ESA.
While the MOA was adopted by the
agencies in the context of NPDES
permits for discharges of pollutants, it
applies equally to NPDES permits that
contain conditions for cooling water
intake structures. Moreover, section
316(b) of the CWA accords EPA broad
authority to protect waters of the United
States from adverse environmental
impacts associated with cooling water
intake structures, including adverse
effects to Federally-listed species and
designated critical habitat. In
implementing this provision, EPA is
authorized to consider costs and
benefits of different approaches to
minimizing these impacts. The
importance of listed species, and
accordingly the benefits associated with
preventing their extinction, animated
Congress’s enactment of the Endangered
Species Act in 1973. In the case of
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aquatic organisms that are listed as
endangered or threatened, and
designated critical habitat, EPA has the
authority, and will exercise the full
extent of its authority, to object to a
permit proposed by a State where EPA
finds (taking into account all available
information, and giving, as appropriate,
substantial weight to the views of the
Services) that a State or Tribal permit is
likely to jeopardize the continued
existence of such species or result in the
destruction or adverse modification of
such critical habitat. If the State permit
is not modified to address EPA’s
objections, EPA will issue the permit in
consultation with the Services. EPA’s
commitment to use the full extent of its
CWA authority to object to permits that
are likely to jeopardize listed species or
result in the destruction or adverse
modification of critical habitat is a
safeguard for the protection of listed
species and critical habitat.
Additionally, where the Service
communicates in writing to EPA its
conclusion that a proposed State permit
is likely to jeopardize the continued
existence of a listed species, EPA will,
upon request, provide the Service a
written response. EPA’s commitment to
use the full extent of its CWA authority,
along with the other provisions of the
rule requiring the EPA, the Services,
and State Directors to fully consider
effects to threatened and endangered
species and critical habitat and include
appropriate protections in NPDES
permits, insures that the rule is not
likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of designated critical habitat.
L. Permits for Existing Facilities Are
Subject to Requirements Under Other
Federal Statutes
EPA’s NPDES permitting regulations
at § 122.49 list Federal laws that might
apply to the issuance of NPDES permits
under the NPDES rules. These include
the Wild and Scenic Rivers Act, 16
U.S.C. 1273 et seq.; the National
Historic Preservation Act of 1966, 16
U.S.C. 470 et seq.; the Coastal Zone
Management Act, 16 U.S.C. 1451 et seq.;
and the National Environmental Policy
Act, 42 U.S.C. 4321 et seq. For a brief
description of each of these laws, see
§ 122.49. The provisions of the
Magnuson-Stevens Fishery
Conservation and Management Act, 16
U.S.C. 1801 et seq., relating to essential
fish habitat might also be relevant.
EPA’s permit application requirements
ensure that FWS and NMFS will have—
and other Federal agencies as well,
should have—a broader information
base from which to make informed
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decisions. Note also that, in the case of
EPA-issued permits, EPA’s NPDES
permitting regulations specifically
require following the requirements of
specific Federal laws that may apply to
the issuance of NPDES permits.
IX. Cost Development and Economic
Impact Analysis
This section summarizes EPA’s
analysis of the social cost and economic
impact for three regulatory options. In
addition to today’s rule, referred to as
the Final Rule, EPA analyzed two other
options similar to those options at
proposal (see section VI.D Other
Options Considered for Today’s Final
Regulation for more context). The
regulatory options can be described as
follows:
• Final Rule: Flexible impingement
mortality performance standard for
existing units based on modified
traveling screens with fish returns for all
facilities with DIF greater than 2 mgd,
closed-cycle cooling or its equivalent for
new units for impingement and
entrainment, and a national BTA
standard that requires a site
determination of entrainment BTA for
all other existing units at existing
facilities;
• Proposal Option 2: Intake flow
commensurate with closed-cycle
cooling for facilities that have a design
intake flow of greater than 125 mgd,
flexible impingement mortality
limitations based on modified traveling
screens with fish returns for all facilities
with DIF greater than 2 mgd, and
closed-cycle cooling or its equivalent for
new units; and
• Proposal Option 4: Flexible
impingement mortality limitations
based on modified traveling screens for
all facilities with DIF greater than 50
mgd, closed-cycle cooling or its
equivalent for new units, and a sitespecific determination of entrainment
BTA for all other facilities and for
impingement mortality controls at
facilities with flow less than or equal to
50 mgd.
The first part of this section provides
an overall summary of the costs of the
regulatory options to regulated facilities
and Federal and State governments.
This discussion is followed by a review
of the method for developing
compliance cost estimates. The third
part provides an estimate of the total
social costs of the regulatory options.
The final part reviews the economic
impact of the regulatory options.
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A. Overview of Costs to Regulated
Facilities and Federal and State
Governments
In estimating the total cost of the
regulatory options, EPA estimated costs
for the following components: capital
costs and other one-time costs;
installation downtime costs; annual
operation and maintenance costs; and
recordkeeping, monitoring,
entrainment-related studies, and
reporting costs. All of these costs are
included in the economic impact
analysis for the final rule. The cost
estimates reflect the incremental costs
attributed only to this final rule. For
example, facilities already having
closed-cycle recirculating systems as
defined at § 125.92 will meet the
impingement mortality and entrainment
standards of today’s rule and, therefore,
will not incur costs to retrofit new
technologies. These facilities, including
those in New York and California, will
still incur permitting costs. EPA has
established that existing closed-cycle
recirculating systems will comply with
the impingement BTA requirements.
For the economic analysis, EPA
distinguished between the two industry
groups regulated by the standards for
existing facilities as follows:
• Electric Power Producers (electric
generators)—facilities owned by
investor-owned utilities, municipalities,
States, Federal authorities, cooperatives,
and nonutilities, whose primary
business is electric power generation or
related electric power services.
• Manufacturing and Other Industries
(manufacturers)—facilities in the paper,
aluminum, steel, chemicals, petroleum,
food and kindred products (primary
manufacturing industries), and other
industries. In addition to engaging in
production activities, some of these
facilities also generate electricity for
their own use and occasionally produce
excess power for sale.
For a more detailed discussion of
costs to regulated facilities and costs to
Federal, State, and local governments,
see Chapter 8 of the TDD and Chapter
3 of the EA.
Electric generators incurring costs
include facilities owned by private
firms, governments, and electric
cooperatives. Manufacturers incurring
costs include facilities owned by private
firms only. The administrative costs to
Federal, State, and local governments
include the costs of rule
implementation—e.g., permits,
monitoring, and working with facilities
subject to the final rule to achieve
compliance.
In the economic analysis, EPA
accounted for these costs on an as-
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incurred basis. They are reported on a
pre-tax or after-tax basis, depending on
the specific component of the analysis.
These costs also underlie the analysis of
the social costs of the regulatory
options.
B. Development of Compliance Costs
This section describes the data and
methods used to estimate compliance
costs of the options considered for
today’s final rule. Costs were developed
for technology controls to address
impingement mortality separately from
technology controls for entrainment
because the requirements of the various
rule options considered may lead to
different technologies being used by
each facility to comply. The options
considered may impose different
compliance timelines for impingement
mortality and entrainment control
technologies, although decision making
has been synchronized to avoid
investments in impingement BTA
controls that could later be rendered
obsolete by the BTA requirements for
entrainment. Different methodologies
were used and each is briefly described
below. More detailed information on
these methodologies and costs of other
technologies and regulatory approaches
are available in Chapter 8 of the TDD.
1. Combined Facility-Specific and
Model-Facility Approach
EPA estimated national level costs for
regulated facilities under the final rule
and other regulatory options. In general,
facility-specific data can be used to
determine the requirements that apply
to a facility and whether that facility
already meets the final rule’s
requirements. This approach requires
facility-specific technical data for the
approximately 1,065 facilities that EPA
estimates will be subject to the final
rule. The change in the number of
facilities subject to the final rule
compared to the number estimated at
proposal is attributable to changes in
how EPA accounted for baseline
closures. See Appendix H of the EA for
more details. An alternative approach is
to develop a series of model facilities
that exhibit the typical characteristics of
the regulated facilities and calculate
costs for each model facility; EPA would
then determine how many of each
model facility would be needed to
accurately represent the full universe of
regulated facilities.
The approach used in this effort
involved calculating compliance
technology costs for 338 individual
facilities for which EPA had detailed
technical data from its questionnaires
regarding the intake design and
technology. Specifically, these are the
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facilities that completed the detailed
technical questionnaire. Where facilities
reported data for separate cooling water
intake structures, EPA derived
compliance technology costs for each
intake, and summed these intake costs
to obtain total costs for each facility.
EPA used the actual facility data to
construct model facilities. Each model
facility’s costs were then multiplied by
a specific weighting factor, derived from
a statistical analysis of the industry
questionnaire, to obtain industry-wide
costs. The weighting factors are similar
to the ones derived during the
development of the 2004 Phase II and
2006 Phase III rules.
2. Updates to the Survey Data
For the 2004 Phase II rule analysis,
EPA developed facility-specific cost
estimates for all facilities and published
those costs in an appendix (69 FR
41669, July 9, 2004). Since the initial
implementation of the 2004 Phase II
rule, EPA identified several concerns
with using only the facility-specific
costing approach, and the use of those
costs in Appendix A. Since 2004 EPA
has collected data from industry and
other groups as described in Section III
of the proposed rule (76 FR 22183, April
20, 2011). These data generally reflect
changes to actual intake flow, design
intake flow, intake velocity, technology
in place, and operational status. EPA
developed a new master database
including this new data to supplement
the data from the detailed technical
questionnaire. Although it has been
more than 10 years since the detailed
technical questionnaire was initially
collected, EPA has undertaken more
than 50 site visits and reviewed
available literature. In addition, EPA
compared its data with that collected by
Edison Electric Institute, Electric Power
Research Institute, and the Energy
Information Administration. On the
basis of that review, EPA concluded that
the master database is representative
and reasonably reflects costs for all
facilities.102 The following section
describes how EPA used this new
database to estimate compliance costs.
3. Tools for Developing Compliance
Costs
During development of the 2004
Phase II rule, EPA began developing a
spreadsheet-based tool that would
provide facilities and permit authorities
with a simple and transparent method
for calculating facility-specific
102 EPA notes that, while it has not collected
updated technical information for every facility, it
has updated financial data, as discussed later in this
section.
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compliance costs. EPA refined the tool
in developing the Phase III regulations.
EPA has since made further refinements
to the cost tool, which was used to
calculate the compliance costs for
impingement mortality for today’s final
rule. The cost tool employs a decision
tree (for a graphical presentation of the
decision tree, see Chapter 8 of the TDD)
to determine a compliance response for
each model facility. The decision tree
assigns a technology costing ‘‘module’’
for the retrofit to a given technology.
Impingement cost estimates are derived
through a series of computations that
apply facility-specific data (such as DIF,
width of intake screens, and such) to the
selected technology module. Cost tool
outputs include capital costs,
incremental operation and maintenance
costs, and installation downtime (in
weeks).
To calculate the compliance costs of
retrofitting to closed-cycle cooling for
controlling entrainment, EPA used a
second tool based on a cost-estimating
spreadsheet using a modified version of
a similar tool developed by the Electric
Power Research Institute (EPRI). EPRI’s
first draft methodology presented three
levels of capital cost according to the
relative difficulty of the retrofit project
(easy, average, and difficult). For
electric generators, EPA used costs for
the average level of difficulty because it
was developed across a broad spectrum
of facilities and is the most appropriate
for estimating national level costs rather
than lower or upper bounds. For
manufacturers, EPA used the difficult
level of retrofit costs. This reflects the
more complex water systems and
technical challenges to retrofitting
closed-cycle cooling at multiple
locations within a manufacturing
facility. In site visits, EPA found the
largest manufacturing facilities had
multiple intakes, distributed the water
to multiple production processes, have
already significantly increased water
reuse as a result of water audits, and
generally operate a complicated water
distribution network at the entire
facility, and would therefore require
multiple retrofits to convert the facility
to be commensurate with closed-cycle
recirculating system.103 Accordingly,
EPA determined that the difficult level
of retrofit costs is more representative
for purposes of estimating national level
costs. EPA’s tool includes additional
modifications to EPRI’s methodology,
such as increased compliance costs for
approximately 25 percent of facilities to
103 A refinery, for example, may have dozens of
heat exchange processes throughout the facility,
including a mix of wet and dry non-contact cooling
equipment.
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reflect the additional expense of noise
control or plume 104 abatement, and
using only the cooling water flow rate
for non-contact cooling water flow 105
for purposes of estimating costs for
closed-cycle cooling. EPA has included
the spreadsheet tools in the docket for
today’s final rule to assist both facilities
and permit authorities in estimating
compliance costs (see DCNs 12–6650
and 12–6651 for the cost tool, as well as
and DCN 10–6930 for EPRI’s retrofit
analysis).
4. Which technologies form the basis for
compliance cost estimates?
EPA identified two broad classes of
control technologies that may be used
singularly or in combination to comply
with the final rule. These classes of
control technologies are (1) technologies
that address impingement mortality,
and (2) technologies that address
entrainment. For further details, see
Section VI.
For the impingement mortality
requirements, EPA analyzed data from a
wide variety of technologies and
facilities, and concluded that modified
(Ristroph or equivalent) 3⁄8″ mesh
traveling screens with fish-friendly fish
handling and returns are the most
appropriate basis for determining
compliance costs.106 As discussed in
Section VI of this preamble, a facility
may also comply with impingement
mortality requirements by meeting a low
velocity compliance alternative,
operating a closed-cycle recirculating
system as defined at § 125.92(c), or
employing an existing offshore velocity
cap as defined at § 125.92(v). On the
basis of facility-specific data, EPA made
a preliminary assessment of which
model facilities would not currently
meet impingement mortality
requirements through any of these preapproved technologies, and assigned
technology costs on the basis of
modified traveling screens with a fish
handling and return system if the
existing intake used traveling screens. If
the intake does not currently use
104 The EPRI tool includes drift abatement
technologies in its cost assumptions, so no
additional costs were included for drift eliminators.
105 As described in the TDD, EPA used only noncontact cooling water flows in determining the
proper size for wet cooling towers. Cooling towers
are not widely used for contact cooling or process
water, so these flows were excluded. For electric
generators, the vast majority of flow is non-contact
cooling, but manufacturers are more varied in their
water usage.
106 Note that this does not preclude the use of
other technologies; EPA simply used the available
performance data in deriving the performance
requirements. EPA’s research has shown that other
technologies may also be capable of meeting the
final rule requirements; however, these
technologies are not available at all facilities.
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traveling screens, EPA assigned costs for
installing technologies that would
comply with the low velocity
compliance alternative (larger intakes,
wedgewire screens, or variable speed
pumps) based on site-specific
conditions. These assigned technologies
will meet the BTA standard (see
§ 125.94(b)). Although EPA no longer
requires installation of barrier nets or
equivalent technologies to protect
shellfish in all tidal waters, EPA
included the cost of barrier net
technology at approximately 10 percent
of the intakes as a cost component for
the ‘‘systems’’ approach to compliance
with the IM standards.
EPA also analyzed the costs of those
options associated with entrainment
requirements based on wet cooling
systems. EPA also evaluated other
technologies for reducing entrainment,
such as seasonal operation of cooling
towers, partial towers, variable speed
pumps, and fine-mesh screens. The
costs of the final rule include but are not
limited to permit applications;
characterization of the source water,
intake structures and any technologies
in place; studies of impingement and
entrainment; and recordkeeping,
monitoring, and reporting. The costs
also include costs of technologies for
complying with the BTA for IM; the cost
of additional technologies that may be
required to meet the site-specific BTA
for entrainment are not included, nor
are costs for additional measures that
may be required for protection of listed
threatened and endangered species.
Section VI further describes the
performance of these technologies. A
detailed discussion of how the costs
were developed is in Chapter 8 of the
TDD.
5. How is installation downtime
assessed?
Installation downtime is the length of
time that a facility might need to shut
down for installing a compliance
technology. Downtime estimates
primarily assume that the facility would
need to completely shut down
operations for some portion of the
installation period to retrofit an intake,
such as relocating an intake, connecting
wet cooling systems into the facility, or
reinforcing condenser housings. EPA
estimated downtime as incremental
outages, taking into account the periodic
outages all facilities incur as part of
preventative maintenance or routinely
scheduled outages. For example,
nuclear facilities have refueling outages
approximately every 18 months lasting
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approximately 40 days.107 The
entrainment control implementation
periods under Proposal Option 2, 10
years for fossil fuel facilities and 15
years for nuclear facilities, would
provide facilities with an opportunity to
schedule the retrofit when other major
upgrades are being done, thereby
significantly reducing downtime.
For most facilities subject to
impingement mortality, EPA assigned
no incremental downtime. Facilities
that are replacing or rehabilitating
existing traveling screens typically do so
one intake bay at a time without
affecting the overall operations.108 EPA
has also found that facilities that need
to scrub screens do so during other
routinely scheduled outages. For some
compliance technologies, however, such
as relocating an intake or expanding an
existing intake to lower the intake
velocity, several weeks of downtime
may be incurred because these are more
invasive tasks. See TDD Exhibit 8–4 for
EPA’s net construction downtime for
the various IM compliance technologies.
EPA reviewed historical retrofit data
and site visits conducted since 2004 and
has largely retained its assumptions for
downtime from the Phase II and Phase
III rules for facilities retrofitting to
closed-cycle cooling. On average, EPA
assumes the net installation downtime
for retrofitting to closed-cycle cooling
for non-nuclear electric generators is 4
weeks. This total downtime allows for
the tie-in of the closed-cycle system to
the existing cooling water system. The
refueling outage downtime, the safetysensitive nature of nuclear facility
retrofits, and other data in EPA’s record
supports 28 weeks as the net
construction downtime for nuclear
facilities. EPA converted downtime for
manufacturing facilities that use cooling
water for power and steam generation
into the incremental cost for purchasing
electricity during the outage. For
individual process units other than
power generation units at a
manufacturing facility, on average the
downtime was assumed to be zero. In
EPA’s extensive experience with
manufacturers, EPA’s record reflects
that manufacturers are generally able to
shut down individual intakes for
specific process lines, use inventory
approaches such as temporary increases
of intermediate products, and develop
other workarounds without interrupting
the production of the entire facility. For
further discussion of how EPA
107 Nuclear Energy Institute reported average
length of outage from 2003 to 2009.
108 EPA’s data shows that facilities have an
average of 4 to 5 bays.
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accounted for installation downtime in
estimating national costs, see below.
6. How is the energy penalty assessed?
The term energy penalty in relation to
a conversion to closed-cycle cooling has
a number of different interpretations.
The first is the extra power required to
operate fans at a mechanical draft
cooling tower and additional pumping
requirements (sometimes referred to as
auxiliary energy requirements or
parasitic loads). The second is the lost
power output because of the reduction
in steam turbine efficiency from an
increase in cooling water temperature
relative to once-through cooling (often
referred to as the turbine efficiency
penalty or turbine backpressure
penalty). EPA is clarifying that it views
the former as incremental O&M costs,
and the latter is EPA’s interpretation of
the energy penalty. Energy penalty costs
apply only to facilities retrofitting to
closed-cycle cooling without replacing
the condenser. Facilities installing a
new impingement mortality technology
will not generally face an energy penalty
and will generally see little or no
measureable change in auxiliary power
consumption. EPA’s national-level costs
include both these costs. The auxiliary
power consumption was included as a
separate component in the operation
and maintenance costs and was assessed
for all facilities. The turbine efficiency
penalty was typically expressed as a
percentage of power output. EPA
estimates the turbine efficiency energy
penalty for nuclear and non-nuclear
power generation would be 2.5 and 1.5
percent, respectively (see Chapter 8 of
the TDD). For most manufacturers
generating their own electricity, EPA
assumed the same energy penalty for
turbine efficiency loss as estimated for
non-nuclear power facilities (i.e., 1.5
percent).
7. How did EPA assess facility-level
costs for the national and regional
economic impacts analysis?
As part of the economic impact
analysis, EPA assessed the impact of the
final rule’s requirements on electric
generators in the context of national and
regional electricity markets. For this
analysis, EPA used the Integrated
Planning Model (IPM®), a
comprehensive electricity market
optimization model that assesses such
impacts within the context of regional
and national electricity markets. EPA
has used IPM to analyze the impacts of
various regulatory actions affecting the
electric power sector over the last
decade, particularly Clean Air Act
regulations.
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Because IPM requires facility-specific
costs for each analyzed facility, yet
compliance costs were developed as
weighted sums of model facility costs,
EPA developed a method to distribute
the aggregate costs to facilities that were
not themselves model facilities. For
these facilities, EPA converted facilitylevel costs developed for model
facilities to a cost per mgd DIF and then
averaged these values to derive cost
equations using DIF as the independent
variable. These cost equations provide
average costs that can be applied to any
facility by simply scaling to that
facility’s DIF. For details on the IPM
analysis, see the EA, Chapter 6. For
details on facility cost development, see
the TDD, Chapter 8.
8. How did EPA assess costs for new
units?
Power generation and manufacturing
units that are a new unit as defined at
§ 125.92(u) must meet an entrainment
reduction performance standard based
on closed-cycle cooling or an equivalent
reduction in entrainment for the cooling
water component of the intake flow
based on the DIF. This section briefly
describes the data and methods used to
estimate compliance costs for new units
at existing electric generators and
manufacturers. Chapter 8 of the TDD
has a complete description of the
methodology.
a. New Units at Existing Electric
Generators
Compliance costs for new units at
existing electric generators are estimated
using a similar methodology to that
used for estimating compliance costs for
existing facilities. As described in
Chapters 6 and 8 of the TDD, however,
there are a number of differences in
costs between a closed-cycle cooling
retrofit at an existing facility compared
to installing closed-cycle cooling at a
new unit. In general, these differences
result in lower costs for the installation
of a closed-cycle recirculating system at
a new unit (as compared to a retrofit
scenario), due to improved efficiency of
the turbine, the elimination of
construction downtime, greater ease of
integrating the closed-cycle system into
the design and construction of the new
unit, offsetting costs of certain system
and construction components, and
greater overall system optimization.
EPA could not determine precisely
which facilities will construct new
units. Instead, EPA used an approach to
estimate what portion of the new
capacity (i.e., additional megawatts
capacity to be constructed each year)
would be subject to the final rule. Using
national projections of increased
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generating capacity,109 EPA categorized
the new capacity into three groups for
316(b) compliance purposes: (1) Subject
to the Phase I rule,110 (2) subject to
today’s final rule, but projected to
install a cooling system that complies
with the rule regardless of the rule
requirements,111 and (3) subject to
today’s rule and projected to incur
compliance costs. Exhibit IX–1 presents
the estimated total new capacity and the
estimated capacity for new stand-alone
units.
EXHIBIT IX–1
Total
including
Phase I
Fuel type
New
Capacity
(MW)
Existing
facility
new units
only
modify cost equations used for
estimating closed-cycle retrofit costs at
existing units and then applied the cost
equations to the portion of projected
new unit generating capacities that
would be subject to the new unit
provisions of today’s rule. These costs
include capital 112 and O&M costs, as
well as a reduction in net generating
capacity due to auxiliary power
consumption to operate the closed-cycle
recirculating system. Due to the
complex nature of constructing a new
unit, there is no increase in the length
of the construction project as a result of
employing a closed-cycle system;
similarly, there is no downtime, as the
unit has not yet begun operating. See
Chapter 8 of the TDD for more
information.
Stand-Alone
(MW)
b. New Units at Existing Manufacturers
On the basis of site visits to
Fossil Fuel ........
295
80 manufacturing facilities, EPA has
Combined Cycle
3,264
147 observed that manufacturers are
increasingly taking advantage of water
Total ...........
3,559
227
conservation and reuse measures as a
means of cost-cutting. EPA also notes
Costs for closed-cycle cooling are
assigned to a portion of new stand-alone that manufacturers are subject to a wide
variety of ELGs and that, in the course
units, as shown the generating
of complying with requirements for
capacities in Exhibit IX–3.
those ELGs, a facility may also reduce
its intake flow. (See Chapter 4 of the
EXHIBIT IX–3
TDD.) A new unit provides the
Annual
24-year total opportunity to employ such measures to
the fullest extent in designing the new
only
only
Fuel type
unit. The availability of water
Stand-Alone Stand-Alone conservation and reuse opportunities,
MW
MW
coupled with operational flexibility at
Fossil Fuel ........
8
191 facilities with multiple industrial
Combined Cycle
15
353 processes, leads EPA to conclude that
facilities installing new units at existing
Total ...........
23
544 manufacturers will comply with the
new unit provisions through achieving
EPA then estimated the total costs for
the third group (i.e., those units that
112 The record indicates that the total estimated
capital cost for installing a closed-cycle
would incur compliance costs) to
recirculating system at a new unit to comply with
comply with requirements for new
today’s rule ranges from a negative value (as
units. EPA used certain assumptions
compared to the cost for installing a once-through
regarding cooling system design to
system) to a positive value that could approach the
emcdonald on DSK67QTVN1PROD with RULES2
109 Capacity
increases include considerations for
fuel type. See Chapter 8 of the TDD for details.
110 New capacity that is part of a new facility (as
defined by the Phase I rule) is subject to separate
requirements not addressed by today’s rule. Today’s
requirements for new units require flow reduction
commensurate with a closed-cycle recirculating
cooling system.
111 Data in the record show a marked increase in
the use of closed-cycle cooling in facilities
constructed in recent years and for those projected
to be constructed in the near future. These data
indicate that in the 1990s (prior to the Phase I rule),
83 percent of new cooling systems installed were
closed-cycle cooling systems and that the current
trend was approximately 97 percent. Based on these
data EPA assumed that 75 percent to 90 percent of
new units will be designed with a closed-cycle
recirculating cooling system regardless of the
requirements of today’s rule. See DCN 12–6672. As
a result, this category of new capacity was not
assigned any compliance costs.
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cost of an existing facility retrofit. Said differently,
if one assumes that the new unit would have
constructed a new intake structure, EPA’s record
shows that the capital costs for the new unit oncethrough system would be greater than if the new
unit installs a closed-cycle recirculating system.
(See DCN 10–6650.) Alternatively, if the new unit
did not require modification of the existing cooling
system infrastructure, then the capital costs for
installing a closed-cycle recirculating system would
be similar to an existing facility retrofit minus some
tie-in costs since the condenser is being replaced.
While EPA envisions that the actual costs will vary
(i.e., some will be in the negative portion of the
range and others will be in the positive), EPA is also
unable to project what cooling water intake
arrangements a new unit will use. Consequently, for
all new units, EPA selected a capital cost equal to
the midpoint between the tower only and the easy
retrofit costs. As a result, EPA assumed that the
capital costs for these units was $154 per gpm in
2009 dollars which converts to $30,800 to $60,060
per MW capacity depending on fuel type. For a
more detailed discussion, see TDD Chapter 8.
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the 90 percent reduction required at
§ 125.94(e)(2). Thus, EPA concluded
that the new unit provisions would
result in no additional compliance costs
for achieving flow commensurate with
closed-cycle cooling at new units.113
To the extent that manufacturers are
not able to incorporate water reuse
measures as a means of complying with
the new unit provision, EPA’s estimate
of new unit costs for manufacturers may
be an underestimate. Manufacturers
generally withdraw less water than
electric generators (including
manufacturers who generate their own
electricity). Thus EPA has concluded
that any underestimation would be
insignificant.
C. Social Costs
EPA assessed the costs to society
resulting from the final rule and other
options considered in development of
this rule. The findings presented in this
section assume that facilities with
impoundments will qualify as having
closed-cycle recirculating systems in the
baseline.114 As a result, EPA assigned
no compliance technology costs to these
facilities; however, these facilities
remain subject to today’s rule and are
assigned administrative costs. To the
extent that some of these facilities do
not qualify as having closed-cycle
recirculating systems in the baseline,
the costs reported in this section may be
underestimates. The social cost of
regulatory actions includes costs to
electric generators and manufacturers to
comply with the final rule, and costs to
States and the Federal government to
administer the rule. These costs are the
opportunity costs to society of
employing scarce resources to prevent
the environmental damage that would
occur without today’s rule. EPA
estimated total social costs for existing
and new units at existing facilities.
In estimating social costs, EPA
assumed that the final rule and other
options considered in development of
this rule will not affect the aggregate
quantity of electricity or other affected
goods and services sold to consumers.
Thus, the social cost of regulatory
requirements includes no loss in
consumer and producer surplus from
reduced sales of electricity or other
goods and services produced by
regulated facilities. The Agency
calculated the social cost of the final
113 EPA also notes that some manufacturers may
also be able to increase reuse to a degree where the
facility no longer meets the applicability thresholds
of today’s rule.
114 In other words, EPA assumed facilities
indicating use of an impoundment in response to
their technical survey have lawfully created such
impoundments for the purposes of cooling water.
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emcdonald on DSK67QTVN1PROD with RULES2
rule and the other options considered
using two discount rates: 3 percent and
7 percent.
For existing facilities, EPA assumes
that all facilities subject to the final rule
will begin bearing costs associated with
today’s rule beginning as soon as 2014,
and likely complete investments
associated with today’s rule by 2030,
depending on the technologyinstallation schedules for the final rule
and other regulatory options
considered.115 EPA performed the social
cost analysis over a 51-year period to
reflect (1) the last year in which
individual facilities are expected to
achieve compliance (2030) under the
final rule or any of the options
considered, (2) the life of the longestlived compliance technology installed at
any facility (30 years), and (3) a period
of five years after the last year of
compliance technology operation during
which benefits continue to accrue.
Under this framework, the last year for
which EPA has calculated projected
costs is 2059, with benefits continuing
beyond 2059, though on a diminishing
basis, through 2064.116
To estimate social costs for existing
facilities, EPA developed a year-explicit
schedule of compliance outlays over the
46-year period from 2014 to 2059
according to cost-incurrence
assumptions (for details on costincurrence assumptions, see EA,
Chapter 3). EPA then adjusted these
costs for predicted real change (i.e.,
adjusted for inflation) to the year of
their incurrence and discounted all
costs to the beginning of 2013, the
promulgation year used for the analysis.
Because the analysis period extends
beyond the useful life of some
compliance equipment, the social cost
analysis accounts for re-installation of
impingement mortality compliance
technologies after the end of their initial
useful life periods. However, for the
regulatory option that requires a specific
115 EPA conducted the cost and economic impact
analyses on a calendar-year basis. For these
analyses, EPA used calendar year 2013 as the
promulgation year of today’s rule and 2014 as the
first post-promulgation analysis year. This slight
difference from the actual promulgation year of
2014 results from the fact that EPA completed its
cost and economic impact analyses for the final rule
and alternative options before EPA decided to delay
promulgation from 2013 to 2014. Because the rule
is being promulgated during the first half of 2014,
EPA concluded that it would be reasonable to
continue using 2013 as the assumed promulgation
year for the regulatory analysis. EPA expects the
differences in the estimated costs and benefits of
the rule due to this slight imprecision to be
minimal.
116 For this analysis, EPA assumed that the last
year of technology installation for all regulated
facilities under any of the regulatory options—i.e.,
2030—is also the first year of steady-state
compliance with regulatory requirements.
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entrainment control technology (e.g.,
wet cooling systems)—Proposal Option
2—EPA does not expect regulated
facilities to completely rebuild these
systems (components such as piping
and the concrete basin can be reused).
EPA accounted for other technology
replacement costs (such as pumps and
fill material) as part of ongoing
operations and maintenance expenses.
For new units at existing electric
generators, EPA calculated an average
annual amount of new capacity to be
constructed during the 46-year social
cost analysis period, beginning in 2014.
While EPA does not expect the annual
construction of new units to be
constant, predicting the year-to-year
fluctuations would be resource
intensive. On average, EPA assumes that
its estimate of new unit costs is
reasonable. EPA accounted for
compliance costs for these units on an
as-incurred basis, as done for existing
facilities. Similar to compliance costs
for facilities subject to the final rule,
EPA analyzed costs incurred by State
and Federal governments for
administering the regulation on a yearexplicit basis over the 46-year social
cost analysis period.
Exhibit IX–4 presents social costs for
existing units at existing facilities under
the final rule and other options
considered, calculated using 3 percent
and 7 percent discount rates. At the 3
percent discount rate, EPA estimates
total annualized social costs of $272
million for the existing unit provision of
today’s rule, $252 million for Proposal
Option 4, and $3,643 million for
Proposal Option 2. At the 7 percent
discount rate, these costs are $295
million for today’s rule, $272 million for
Proposal Option 4, and $3,583 million
for Proposal Option 2.117 See the EA
117 Because EPA was unable to identify those
facilities for which entrainment control technology
would be established as BTA standards on a sitespecific basis, the Agency did not analyze
technology costs associated with these site-specific
requirements. Consequently, the cost and economic
analyses conducted in support of today’s rule
assume that under the existing unit provision of the
final rule and Proposal Option 4, Electric
Generators and Manufacturers install IM technology
only. These analyses also assume that under
Proposal Option 2, Electric Generators with DIF
exceeding 125 mgd install only cooling towers and
all other Electric Generators install only IM
technologies. Under Proposal Option 2, a small
number of Manufacturers are assigned both IM and
entrainment control technologies because of
engineering issues associated with maintaining
separation of contact and non-contact cooling water
in some manufacturing operations. Although EPA
did not estimate technology costs for facilities for
which entrainment technology is established as
BTA on a site-specific basis, EPA did include the
costs for data collection and studies that facilities
will need to perform in order to provide
information to Directors to make these site-specific
determinations. EPA included these costs in the
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(Chapter 7) for an explanation of why
the annualized costs at the 3 percent
discount rate are lower than the
annualized costs at the 7 percent
discount rate for the final rule and
Proposal Option 4, while the inverse is
the case for Proposal Option 2
(annualized costs at the 3 percent
discount rate are higher than at the 7
percent discount rate). The largest
component of social cost is the cost of
regulatory compliance incurred by
regulated facilities (as opposed to
administrative costs estimated for States
and the Federal government). These
costs include (1) one-time technology
and other initial costs of complying
with the rule, (2) one-time costs of
installation downtime, (3) annual fixed
and variable operating and maintenance
costs, including auxiliary energy
requirement, (4) value of energy penalty
from operation of compliance
technology, and (5) permitting costs
(initial and follow-up start-up costs,
initial permit costs, annually recurring
costs associated with monitoring, and
non-annually recurring permitting
costs).
Compliance costs estimated for
electric generators account for the
largest share of total compliance-related
social cost and direct compliance cost
under all three options. On a per-facility
basis and at the 3 percent discount rate,
the annualized pre-tax compliance costs
for the electric generators segment
under today’s final rule are $0.4 million,
$0.4 million under Proposal Option 4,
and $6 million under Proposal Option
2.118 For manufacturers, the average cost
per regulated facility at the 3 percent
discount rate is $0.1 million under the
final rule and Proposal Option 4, and
$0.4 million under Proposal Option
2.119 EPA’s analysis found a similar
profile of per facility costs using the 7
percent discount rate (see EA Chapter 7
for additional detail). EPA’s estimate of
Federal and State government costs for
administering this rule is small in
relation to the estimated direct cost of
regulatory compliance. EPA estimates
$1 million in annual administrative
costs to States and Federal government
for the final rule, using both the 3 and
7 percent discount rates. These cost
values are the same for Proposal Option
4. EPA estimates $0.7 million in annual
administrative costs to States and the
administrative costs that are estimated for the final
rule and other options considered.
118 Calculated by dividing direct compliance costs
for each type of facility by the total of 544 electric
generators subject to today’s rule on the basis of
facility count-based weights (see EA Appendix H).
119 Calculated using the total of 521
manufacturers subject to today’s rule on the basis
of technical weights (see EA Appendix H).
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48389
Federal government for Proposal Option
2, regardless of the discount rate used.
EXHIBIT IX–4—TOTAL ANNUALIZED SOCIAL COSTS—EXISTING UNITS AT EXISTING FACILITIES
[in millions, 2011 dollars] a
Proposal
option 4
Final rule
Proposal
option 2
Using 3 percent discount rate
Direct Compliance Costs:
Electric Generators ...........................................................................................................................
Manufacturers ...................................................................................................................................
Total Direct Compliance Cost ..................................................................................................................
State and Federal Administrative Costs ..................................................................................................
Total Social Costs ....................................................................................................................................
$202.9
47.8
250.7
1.0
251.8
$203.7
67.7
271.4
1.0
272.4
$3,413.3
229.2
3,642.5
0.7
3,643.2
219.2
51.9
271.1
1.0
272.1
220.0
74.2
294.3
1.0
295.3
3,339.3
243.0
3,582.3
0.7
3,583.0
Using 7 percent discount rate
Direct Compliance Cost:
Electric Generators ...........................................................................................................................
Manufacturers ...................................................................................................................................
Total Direct Compliance Cost ..................................................................................................................
State and Federal Administrative Costs ..................................................................................................
Total Social Costs ....................................................................................................................................
a Cost
estimates exclude costs associated with baseline closure facilities.
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EPA also estimated the cost for
installing closed-cycle recirculating
systems at new units at existing electric
generators, to reflect the costs of today’s
rule. As shown in Exhibit IX–5, EPA
estimated that the new unit provision of
the final rule will result in an
annualized cost of $2.5 million and $2.0
million using 3 percent and 7 percent
discount rates, respectively, including
compliance costs to facilities and
administrative costs to States and
Federal government.
The Agency estimated that at a 3
percent discount rate, the total social
cost of the final rule, including the
existing and new unit provisions, will
be $275 million. At a 7 percent discount
rate, this cost is $297 million.
on electric generators and
manufacturers. EPA conducted separate
analyses for electric generators and
manufacturers using different
methodologies for each regulated
facilities segment. The following
sections summarize the methodologies
EPA used to conduct the economic
impact analyses and the findings of
these analyses. EPA conducted the
economic impact analyses discussed in
this section for existing facilities; the
Agency used compliance cost estimates
from the EPA engineering analysis (see
TDD Section X.B).
In addition, EPA assessed the impact
of the new unit provision of the final
rule on decisions of existing facilities to
construct stand-alone new units that
would be subject to the new unit
provision. EPA made this assessment in
two ways: (1) On the basis of
comparison, on a per MW basis, of
compliance costs for new units to the
overall cost of building and operating
generating units and (2) as is the case
with the existing unit provision, in the
context of regional and national
electricity markets, taking into account
their interconnectedness.
1. Electric Generators
a. Cost-to-Revenue Analysis for
Regulated Facilities and Their Parent
Entities—Existing Unit Provision of the
Final Rule
EPA assessed the cost to regulated
facilities and their parent entities on the
basis of a cost-to-revenue analysis. For
each analysis level (facility and parent
entity), the Agency assumed, for
analytic convenience and as a worstcase scenario, that none of the
compliance costs would be passed on to
consumers through electricity rate
increases and, instead, would be
absorbed by regulated facilities and
their parent entities.120 EPA developed
For the electric generators segment,
EPA assessed the economic impact of
the existing unit provision of the final
EXHIBIT IX–5—ANNUALIZED TOTAL
rule and other options it considered in
SOCIAL COST OF THE FINAL RULE— three ways: (1) The financial burden
EXISTING AND NEW UNITS AT EXIST- associated with a particular regulatory
ING FACILITIES
option on facilities and entities that own
them, (2) how potential changes in the
[In millions, 2011 dollars] a b
price of electricity would affect
electricity consumers, in general, and
3%
7%
Discount
Discount residential households, in particular,
rate
rate
and (3) broader economic impacts on
New Units .................
$2.5
$2.0 the electricity market, taking into
Existing Units ............
272.4
295.3 account the interconnectedness of
regional and national electricity
Existing and New
Units ......................
274.9
297.3 markets. In preparing the first two sets
of analyses, EPA developed and used
a Cost estimates exclude costs associated
sample weights to extrapolate impacts
with baseline closure facilities.
b Values may not add due to rounding.
assessed initially at the level of sample
of facilities, to the full population of
D. Economic Impacts
facilities subject to the final rule. For
EPA used several analytic approaches information on how EPA developed and
to assess the economic impact of today’s used sample weights, see the EA,
rule and the other options considered,
Appendix H.
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120 As discussed in EA Chapter 2A: Industry
Profiles, the majority of regulated electric generators
operate in States with regulated electricity markets.
EPA estimates that facilities located in these States
may be able to recover compliance cost-based
increases in their production costs through
increased electricity prices. This depends on the
business operation model of the facility owner(s),
the ownership and operating structure of the facility
itself, and the role of market mechanisms used to
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this analysis for 544 electric
generators.121
i. Cost-to-Revenue Analysis for
Regulated Facilities
To provide insight into the potential
significance of the compliance costs to
regulated facilities, EPA calculated the
ratio of annualized after-tax compliance
costs to baseline annual facility-level
revenues. In the cost-to-revenue
comparisons, EPA used cost-to-revenue
thresholds of 1 and 3 percent to
categorize facilities according the
potential economic impact of the rule.
EPA concludes that facilities incurring
analysis results for the final rule and
other options considered. EPA estimates
that overall, under the final rule, 86
percent of regulated facilities will incur
compliance costs of less than 1 percent
of revenue. Under Proposal Option 4, 87
percent of regulated facilities would
also incur costs of less than 1 percent of
revenue. EPA estimates that Proposal
Option 2 would result in 42 percent of
facilities incurring costs exceeding 1
percent of revenue, and 43 percent
incurring costs exceeding 3 percent of
revenue.
costs below 1 percent of revenue will
not face significant economic impacts,
while facilities with costs of at least 1
percent but less than 3 percent of
revenue have a chance of facing
economic impacts, and facilities
incurring costs of at least 3 percent of
revenue have a higher probability of
significant economic impacts. For a
more detailed discussion of the
methodology EPA used for the facilitylevel cost-to-revenue analysis, see EA
Chapter 4.
Exhibit IX–6 presents a summary of
the facility-level cost-to-revenue
EXHIBIT IX–6—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS FOR THE FINAL RULE AND OPTIONS CONSIDERED a
Number of facilities with cost-to-revenue ratio
Option
≥ 1% and < 3%
< 1%
#
Proposal Option 4 ............
Final Rule .........................
Proposal Option 2 ............
%
475
470
228
#
≥ 3%
%
87.4
86.5
41.9
35
40
79
#
%
6.5
7.4
14.5
31
31
235
5.7
5.7
43.2
a Facility
counts exclude baseline closures.
reports no revenue for 1 facility (2 on a weighted basis). Therefore, EPA conducted this analysis for 339 facilities (542 on a weighted
basis). For more information on facility sample weights see EA Appendix H.
b EIA
ii. Cost-to-Revenue Analysis for
Regulated Parent Entities
EPA also assessed the economic
impact using the cost-to-revenue metric
at the level of the parent entity. This
analysis, which focuses on domestic
parent entities with the largest
ownership share in the facility, provides
insight on the impact of compliance
requirements on those entities that own
more than one regulated facility. The
analysis helps to answer the question of
whether owning multiple facilities that
are required to comply with today’s rule
causes financial stress at the entity
level. For each identified parent entity,
EPA aggregated facility-level,
annualized, after-tax compliance costs
to the level of the parent entity and
compared these entity-level costs to
entity-level revenue.
Similarly to the facility-level analysis,
EPA used cost-to-revenue thresholds of
1 and 3 percent to categorize facilities
according the potential economic
impact of the rule. EPA used two
weighting approaches for this analysis:
(1) Facility-level weights, but without
entity-level weights and (2) entity-level
weights, but without facility-level
weights. These approaches, which are
described in Appendix H of the EA,
provide a range of estimates for the
number of entities incurring compliance
costs and the costs incurred by any
entity that owns a regulated facility.
(For a more detailed discussion of the
methodology used for the entity-level
cost-to-revenue analysis, see EA Chapter
4).
Exhibit IX–7 presents results for the
entity-level analysis for the two
weighting approaches. EPA estimates
that between 123 and 159 entities own
regulated facilities. Further, the Agency
estimates that between 91 and 94
percent of parent entities will incur
annualized costs of less than 1 percent
of revenues under the final rule. This
finding also holds under the two other
options EPA considered, with between
91 and 94 percent of entities incurring
costs of less than 1 percent of revenue
under Proposal Option 4 and between
70 and 78 percent under Proposal
Option 2.
EXHIBIT IX–7—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS b
Number of entities with cost-to-revenue ratio of
Total
number
of entities
Parent entity type
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#
Using Facility-Level Weights:
Proposal Option 4 .................
Final Rule ..............................
Proposal Option 2 .................
Using Entity-Level Weights:
Proposal Option 4 .................
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%
#
≥ 3%
%
#
Unknown a
%
#
%
123
123
123
112
112
86
91.1
91.1
69.9
3
3
17
2.4
2.4
13.8
0
0
12
0.0
0.0
9.8
8
8
8
6.5
6.5
6.5
159
150
94.2
0
0.0
0
0.0
9
5.8
sell electricity. In contrast, in States where electric
power generation has been deregulated, cost
recovery is less certain. While facilities operating
within deregulated electricity markets may be able
to recover some of their additional production costs
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≥ 1% and < 3%
< 1%
through increased revenue, EPA cannot determine
the extent of cost recovery ability for each facility.
121 EPA calculated this number as a weighted
estimate using facility count-based weights. This
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number excludes facilities assumed either to have
already retired their steam operations or expected
to do so in the future.
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EXHIBIT IX–7—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS b—Continued
Number of entities with cost-to-revenue ratio of
Total
number
of entities
Parent entity type
#
Final Rule ..............................
Proposal Option 2 .................
a EPA
b This
≥ 1% and < 3%
< 1%
159
159
%
150
124
#
94.2
78.1
≥ 3%
%
0
18
#
0.0
11.6
Unknown a
%
0
7
#
0.0
4.4
%
9
9
5.8
5.8
was unable to determine revenues for 8 parent entities (9 weighted).
analysis assumes no cost pass-through to electricity consumers.
b. Potential Electricity Price Effects—
Existing Unit Provision of the Final Rule
As an additional measure of economic
impact, EPA conducted two assessments
of the potential price effects on
electricity of today’s rule: (1) The
annual increase in electricity costs per
MWh (megawatt hour) of total
electricity sales and (2) the potential
annual increase in household electricity
costs. For analytic convenience and as
a worst-case scenario, these assessments
assume that all compliance costs will be
passed through on a pre-tax basis to
consumers as increased electricity
prices. This full cost pass-through
assumption represents a ‘‘worst-case’’
impact scenario from the perspective of
electricity consumers. Facilities that are
merchant providers can pass along costs
only to the degree that they are
competitive with other generators in the
dispatch process.122 This assumption is
the opposite of EPA’s assumption in the
facility- and entity-level analyses
discussed above—that facilities will
pass none of the compliance costs
through to consumers in electricity rate
increases. If facilities are able to pass
through all costs, the impacts in the
previous subsection would not occur.
The two conditions (no cost passthrough and full cost pass-through)
could not occur at the same time. Thus,
the results of the electricity price-effects
analyses discussed in this section, and
of the facility- and entity-level analyses
discussed in Section IX.D.a.1, should
not be combined. EPA conducted this
analysis for 544 electric generators.
i. Compliance Cost per Unit of
Electricity Sales
EPA assessed the potential increase in
electricity rates by NERC region based
on the annual cost of the regulatory
options per unit of electricity sold. The
Agency used two data inputs: (1) Total
pre-tax compliance cost by NERC
region, and (2) estimated total electricity
sales in the year 2020, to gauge the full
effects of the rule. To calculate the total
estimated annual cost in each NERC
region, the Agency summed sampleweighted, pre-tax annualized
compliance costs over regulated
facilities by region. EPA then calculated
the approximate average price impact
per unit of electricity consumption by
dividing total compliance costs by the
reported total MWh of sales in each
NERC region. (Details of this analysis
are presented in the EA, Chapter 4.)
As reported in Exhibit IX–8, under the
existing unit provision of the final rule,
annualized compliance costs (in cents
per kWh sales) range from nearly $0.00
in the WECC region to $0.040 in the
HICC region. EPA reached the same
findings for Proposal Option 4. Under
Proposal Option 2, costs range from
$0.00 in the WECC region to $0.351 in
the HICC region. On average, across the
United States, the final rule and
Proposal Option 4 result in a cost of
$0.009 per kWh, while Proposal Option
2 results in a higher cost of $0.155 per
kWh.
EXHIBIT IX–8—COMPLIANCE COST PER UNIT OF ELECTRICITY SALES IN 2020 BY REGULATORY OPTION AND NERC
REGION
[2011 ¢/KWh sales] a b
Proposal
option 4
NERC region c d
ASCC .......................................................................................................................................................
FRCC .......................................................................................................................................................
HICC ........................................................................................................................................................
MRO .........................................................................................................................................................
NPCC .......................................................................................................................................................
RFC ..........................................................................................................................................................
SERC .......................................................................................................................................................
SPP ..........................................................................................................................................................
TRE ..........................................................................................................................................................
WECC ......................................................................................................................................................
United States ...........................................................................................................................................
0.000
0.014
0.040
0.010
0.008
0.011
0.013
0.009
0.008
0.000
0.009
Final rule
0.000
0.014
0.040
0.010
0.008
0.011
0.013
0.009
0.008
0.000
0.009
Proposal
option 2
0.000
0.171
0.351
0.174
0.126
0.200
0.219
0.078
0.206
0.000
0.155
a This
analysis assumes full pass-through of all compliance costs to electricity consumers.
values exclude baseline closures.
Systems Coordinating Council; FRCC—Florida Reliability Coordinating Council; HICC—Hawaii Coordinating Council; MRO—
Midwest Reliability Organization; NPCC—Northeast Power Coordinating Council; RFC—ReliabilityFirst Corporation; SERC—Southeastern Electric Reliability Council; SPP—Southwest Power Pool; TRE—Texas Reliability Entity, and WECC—Western Energy Coordinating Council.
d No explicitly analyzed facilities are in the ASCC region. For more information on explicitly and implicitly analyzed regulated facilities, see EA
Appendix H.
b Cost
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c ASCC—Alaska
122 As discussed earlier in Section X.D.b.1, even
though individual regulated facilities may not be
able to recover all of their compliance costs through
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increased revenues, the market-level effect may still
be that consumers will see higher overall electricity
prices because of changes in the cost structure of
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ii. Cost to Households
As an additional measure of the
potential electricity price effects
associated with the final rule, EPA
estimated the potential annual increase
in electricity costs per household and by
NERC region. EPA used total annualized
pre-tax compliance cost per MWh of
sales, as estimated for the electricity rate
impact analysis discussed above and the
quantity of residential electricity sales
per household as reported in the 2011
EIA database. To calculate the potential
annual cost impact per household, EPA
multiplied the average cost per kWh by
the average kWh per household
estimated for each NERC region.
(Chapter 4 of the EA presents details of
this analysis.)
As presented in Exhibit IX–9, under
the existing unit provision of the final
rule, the average annual cost per
residential household varies across
NERC regions, ranging from $0.01 in
WECC to $2.82 in HICC. EPA reached
the same findings for Proposal Option 4.
Under Proposal Option 2, the average
annual cost per residential household
also varies across NERC regions, ranging
from $0.01 in WECC to $31.72 in SERC.
EPA estimated that on average, for a
typical U.S. household, the final rule
will result in an annual cost of $1.03 in
higher electricity rates per household.
EPA estimates that this cost would be
$1.03 per household under Proposal
Option 4 and $17.23 per household
under Proposal Option 2.
EXHIBIT IX–9—AVERAGE ANNUAL COST BURDEN PER RESIDENTIAL HOUSEHOLD IN 2020 FOR THE FINAL RULE AND
OPTIONS CONSIDERED, AND BY NERC REGION
[2011 dollars] a b
Proposal
option 4
NERC region c d
ASCC .......................................................................................................................................................
FRCC .......................................................................................................................................................
HICC ........................................................................................................................................................
MRO .........................................................................................................................................................
NPCC .......................................................................................................................................................
RFC ..........................................................................................................................................................
SERC .......................................................................................................................................................
SPP ..........................................................................................................................................................
TRE ..........................................................................................................................................................
WECC ......................................................................................................................................................
United States ...........................................................................................................................................
Final rule
$0.00
1.91
2.82
0.99
0.61
1.10
1.96
1.30
1.15
0.01
1.03
$0.00
1.91
2.82
1.02
0.62
1.10
1.96
1.30
1.15
0.01
1.03
Proposal
option 2
$0.00
23.15
24.61
18.10
9.52
20.64
31.72
10.71
30.59
0.01
17.23
a The
rate impact analysis assumes full pass-through of all compliance costs to electricity consumers.
estimates exclude baseline closures.
Systems Coordinating Council; FRCC—Florida Reliability Coordinating Council; HICC—Hawaii Coordinating Council; MRO—
Midwest Reliability Organization; NPCC—Northeast Power Coordinating Council; RFC—ReliabilityFirst Corporation; SERC—Southeastern Electric Reliability Council; SPP—Southwest Power Pool; TRE—Texas Reliability Entity, and WECC—Western Energy Coordinating Council.
d No explicitly analyzed facilities are in the ASCC region. For more information on explicitly and implicitly analyzed regulated facilities, see EA
Appendix H.
b Cost
c ASCC—Alaska
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As noted above, this analysis assumes
that facilities will pass through to
consumers all compliance costs through
increased electricity rates. However,
facilities and owner entities might not
be able to recover all these costs through
rate increases, thereby reducing the
impact of today’s rule on electricity
consumers. At the same time, EPA
recognizes that electric generators that
operate as regulated public utilities will
generally recover environmental
compliance costs through rate increases
to consumers.
c. Barrier-To-Development Analysis—
New Unit Provision of the Final Rule
EPA assessed the impact of the new
unit provision of the final rule on
decisions of existing facilities to
construct stand-alone new units that
would be subject to the new unit
provision. As discussed earlier in this
preamble, under this provision, electric
power generating units that meet the
definition of a new unit will be required
to achieve intake flow commensurate
with closed-cycle cooling. The question
of potential impact of this provision on
the construction of new stand-alone
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units is important because new standalone units will generally operate with
higher energy efficiency and lower
environmental impact than older
electric generating capacity, which the
new units would tend to displace as a
source of electric power generation. As
such, EPA sought to ensure that the new
unit provision would not impede
construction of stand-alone new units.
For this analysis, EPA compared the
compliance costs for new units to the
overall cost of building and operating
generating units, on a per MW basis.
The purpose of this analysis is to
determine whether the required
addition of a closed-cycle recirculating
system (CCRS) as part of a new unit
would substantially increase the cost for
the new stand-alone unit, and adversely
affect the decision to construct the new
stand-alone unit. This analysis showed
that given the low cost of CCRS in
relation to the cost of new capacity, the
CCRS requirement will not pose a
barrier to development of new standalone units.
EPA also assessed the costs associated
with the new unit provision of the final
rule as part of its electricity market
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analysis, as discussed in the following
section (Section IX.D). This analysis
tests the impact of the new unit
requirements on electricity markets
accounting for the expected number and
timing of new unit installations, and
provides additional insight on whether
the costs of complying with the new
unit provision of the final rule would
affect future capacity additions. This
analysis found no material effect of the
final rule’s new unit provision on the
number and type of new units that
would be constructed. This finding also
supports EPA’s conclusion that the new
unit provision will not be a barrier to
development of new capacity.
d. Impacts in the Context of Electricity
Markets—Existing and New Unit
Provisions of the Final Rule
In the analyses for the previous 316(b)
regulations, including the proposed
rule, EPA used the Integrated Planning
Model (IPM®),123 a comprehensive
electricity market optimization model,
to assess the economic impact of
regulatory options within the context of
123 Developed
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regional and national electricity
markets. To assess facility and marketlevel effects of the final rule, EPA used
an updated version of this same analytic
system, the Integrated Planning Model
Version 4.10 MATS (IPM V4.10_MATS)
platform.
Use of a comprehensive, market
analysis system is important in
assessing the potential impact of the
final rule because of the
interdependence of electricity
generating units in supplying power to
the electric transmission grid. Increases
in electricity production costs and
potential reductions in electricity
output at regulated facilities—due to the
temporary shutdown of existing electric
generating units during technology
installation—can have a range of
broader market impacts that extend
beyond the effect on regulated facilities
and their direct customers. In addition,
the impact of compliance requirements
on regulated facilities may be seen
differently when the analysis considers
the impact on those facilities in the
context of the broader electricity market
instead of looking at the impact on a
stand-alone, single-facility basis.
The IPM V4.10_MATS platform
provides outputs for the NERC regions
that lie within the continental United
States. This IPM platform does not
analyze electric power operations in
Alaska and Hawaii because these
operations are not connected to the
continental U.S. power grid. The IPM
V4.10_MATS platform is based on an
inventory of U.S. utility- and nonutility-owned boilers and generators
that provide power to the integrated
electric transmission grid, as recorded
in the EIA 860 (2006) and EIA 767
(2005) databases.124 IPM does not
include electric power facilities that do
not provide power to the U.S. power
grid (e.g., some generating units at
industrial facilities). The IPM V4.10_
MATS universe consists of 14,920
generating units at 4,910 existing
electric power facilities, including 520
of the 544 regulated electric power
facilities subject to the final rule.125
This IPM V4.10_MATS platform
embeds a baseline energy demand
forecast from the Department of
Energy’s Annual Energy Outlook 2010
124 In some instances, facility information has
been updated to reflect known material changes in
a facility’s generating capacity since 2006.
125 Facilities excluded from the IPM analysis
include three facilities in Hawaii and one facility
in Alaska (i.e., areas that are outside the geographic
scope of the model), four on-site facilities that are
not connected to the integrated electric
transmission grid, four facilities excluded from the
IPM baseline as the result of custom adjustments
made by ICF, and 12 facilities that did not respond
to the 316(b) survey.
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(AEO2010), with adjustments by EPA to
account for the effect of certain
voluntary energy efficiency programs.
This platform also incorporates in its
analytic baseline the expected
compliance response to existing
regulatory requirements for the
following promulgated air regulations
affecting the power sector: the final
Mercury and Air Toxics Standards
(MATS) rule; the final Cross-State Air
Pollution Rule (CSAPR); 126 regulatory
SO2 emission rates arising from State
Implementation Plans (SIP); Title IV of
the Clean Air Act Amendments; NOX
SIP Call trading program; Clean Air Act
Reasonable Available Control
Technology requirements and Title IV
unit specific rate limits for NOX; the
Regional Greenhouse Gas Initiative;
Renewable Portfolio Standards; New
Source Review Settlements; and several
state-level regulations affecting
emissions of SO2, NOX, and mercury
that are already in place or expected to
come into force by 2017.
In contrast to the screening-level
analyses described earlier, which are
static analyses and do not account for
interdependence of electric generating
units in supplying power to the electric
transmission grid, IPM accounts for
potential changes in the generation
profile of individual electric power
facilities and consequent changes in
market-level generation costs, as a result
of the final rule. The model is dynamic
in that the analysis covers a multipledecade period with information and
decisions in any specific period
depending on the analysis information
and optimization results for the entire
analysis period. The model is also
forward-looking in that it uses forecasts
of future conditions to make decisions
for the present. Finally, in contrast to
the screening-level analyses in which
EPA assumed either no pass through of
compliance costs (facility and entity
cost-to-revenue analyses discussed in
Section IX.D.a.1) or full cost pass126 EPA’s Cross-State Air Pollution Rule (CSAPR)
was promulgated to replace EPA’s Clean Air
Interstate Rule (CAIR), which had been remanded
to EPA in 2008. However, on December 30, 2011,
the U.S. Court of Appeals for the D.C. Circuit stayed
CSAPR pending judicial review and left CAIR in
place. On August 21, 2012 the Court issued an
opinion vacating CSAPR and again leaving CAIR in
place pending development of a valid replacement.
On March 29, 2013, the United States filed a
petition asking the Supreme Court to review the
D.C. Circuit’s opinion. Nevertheless, as explained
above, CAIR remains in effect at this time. In light
of the continuing uncertainty on CAIR and CSAPR,
EPA determined it would not be appropriate or
possible at this time to adjust emission projections
on the basis of speculative alternative emission
reduction requirements in 2020. EPA expects that
the decision vacating CSAPR and leaving CAIR in
place has minimal effect on the results of the
analysis conducted in support of the final rule.
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48393
through (analysis of potential electricity
price effects, Section IX.D.b.1), IPM
assesses price and revenue effects from
increased costs in competitive
wholesale electricity markets, where
some recovery of compliance costs
through increased electricity prices is
possible but not guaranteed.
In performing analyses based on the
IPM V4.10_MATS platform, EPA used
as its baseline a projection of electricity
markets and facility operations without
the final rule requirements (baseline
case). As discussed above, this baseline
accounts for compliance with the
recently promulgated Federal air rules.
EPA then overlaid this baseline with the
estimated compliance costs and other
operating effects—downtime for
installation of IM technologies at
existing units and auxiliary energy
requirement to operate cooling towers at
new units—for regulated facilities under
the policy case.
As discussed in Appendix P of the
EPA report, the IPM V4.10_MATS
platform models the electric power
market over the 43-year period from
2012 to 2054. Within this total analysis
period, EPA looked at shorter IPM
analysis periods (run-year windows) 127
to assess the effect of the final rule on
national and regional electricity
markets. Specifically, to assess the
impact of the final rule during the
period when regulated facilities
temporarily suspend their operation to
install compliance technologies—the
short-term effects analysis or the
downtime effects analysis—EPA used
results reported for the 2020 IPM run
year, which represent an 8-year window
of 2017 through 2024.128 The incurrence
of downtime may lead to higher
electricity generation costs overall, as
generating units at regulated facilities
are taken out of service to complete
technology installation and other
generating units, presumably with
higher production costs, are dispatched
to meet electricity demand. Because of
the potential resulting increase in
electricity generation costs, it is
127 Due to the highly data- and calculationintensive computational procedures required for the
IPM dynamic optimization algorithm, IPM is run
only for a limited number of years. Run years are
selected based on analytical requirements and the
necessity to maintain a balanced choice of run years
throughout the modeled time horizon. Each run
year represents adjacent years in addition to the run
year itself.
128 As discussed earlier in this document, for the
cost and economic impact analyses, EPA assumed
that electric generators will install IM technologies
during the 5-year window of 2018 through 2022.
Because this technology-installation window falls
within the time period captured by the 2020 run
year (i.e., 2017 through 2024), EPA judges that 2020
is an appropriate year to capture the effects of
technology-installation downtime.
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important to examine market-level
effects during the period in which
downtime would occur.
To assess the longer term effect of the
final rule on electricity markets during
the period after compliance technology
is installed at all regulated facilities—
the steady-state post-compliance
period—EPA analyzed results reported
for the IPM 2030 run year, which
represents a 10-year window of 2025
through 2034.129 Effects that may occur
during this steady-state period include
increased electricity production costs at
regulated facilities and potential
permanent losses in generating capacity
from early retirement (closure) of
generating units. Both effects may lead
to higher overall electricity generation
costs through not only the increased
production cost in regulated facilities,
but also through dispatch of higher
production cost units to offset capacity
losses, reflecting the general upward
shift in production costs.130
EPA measured the impacts of the final
rule as the difference between key
economic and operational impact
metrics between the baseline case and
the policy case. All analysis results
presented below are representative of
modeled market conditions in the years
2017–2034. While costs are in 2011
dollars, they are reflective of costs in the
modeled years and are not discounted to
the start of EPA’s analysis period of
2013.131 In contrast to the earlier
statement that the cost and economic
impact analysis findings presented in
129 EPA expects this steady-state period to begin
in the last year of the technology-installation
window, i.e., 2022, and continue into the future.
The 2022 analysis year is captured in the IPM 2020
run year, as opposed to the 2030 run year. However,
because all analysis years represented by the 2030
run year (i.e., 2025–2034) fall outside the
technology-installation window of 2018 through
2022, EPA judges that 2030 is an appropriate year
to capture longer term, steady-state effects of the
final rule.
130 In seeking to minimize the cost of meeting
electricity demand, IPM will tend to shift
production away from regulated facilities that incur
compliance costs, and will shift production to
either non-regulated facilities, which incur no
compliance costs, or to regulated facilities that
incur relatively lower compliance costs. Any of
these changes—whether a simple increase in
production costs for previously dispatched units or
changes in the profile of generating unit dispatch—
mean increased total costs for electricity generation,
compared to the pre-regulation baseline.
131 In contrast, the social cost estimated in
Section IX.C reflects the discounted value of
compliance costs over the entire 51-year analysis
period, as of 2013. Additionally, screening-level
analyses presented in earlier sections are static
analyses and do not account for interdependence of
electric generating units in supplying power to the
electric transmission grid. In contrast, IPM accounts
for potential changes in the generation profile of
steam electric and other units and consequent
changes in market-level generation costs, as the
electric power market responds to higher generation
costs for steam electric units due to the final rule.
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this preamble may be underestimates
because EPA assumed that no facilities
with impoundments will install
compliance technology, the marketbased analysis presented in this section
reflects the opposite assumption.
Namely, despite the final rule’s
treatment of impoundments, for
purposes of this analysis, none of the
facilities with impoundments are
treated as having closed-cycle cooling in
the baseline. As a result, to the extent
that some of these facilities may qualify
as having closed-cycle recirculating
systems in the baseline, and thus would
not need to install compliance
technology, the costs and economic
impacts reported in this section may be
overestimated.
i. Analysis Results for the Year 2030—
To Reflect Steady State, PostCompliance Operations
For the steady-state analysis (2030),
EPA considered impact metrics of
interest at three levels of aggregation: (1)
Impact on national and regional
electricity markets, (2) impact on the
group of 520 regulated facilities
modeled in IPM, and (3) impact on
individual 520 regulated facilities.
Impact on National and Regional
Electricity Markets
For the assessment of market-level
impacts, EPA considered six output
metrics: (1) Incremental capacity
retirements (closures); (2) changes in
capacity retirements as a percent of total
baseline capacity (3) changes in new
capacity additions; (4) changes in
variable production costs per MWh,
calculated as the sum of total fuel and
variable O&M costs divided by net
generation; (5) changes in total
generation costs (fuel, variable O&M,
fixed O&M, and capital); and (6)
changes in wholesale electricity prices.
As shown in Exhibit IX–10, the final
rule has small effects on the electricity
market, on both the national and
regional sub-market basis, in 2030. At
the national level, the analysis shows a
total net increase in retired capacity of
approximately 1 GW, or less than 0.1
percent of the total baseline capacity in
2030 (capacity retirements are discussed
in greater detail in the next section,
Impact on Regulated Facilities as a
Group). This 1 GW of net capacity loss
reflects a combination of closures and
avoided closures of generating units.
‘‘Avoided closure’’ means a generating
unit that was projected to close in the
baseline case but remains open in the
policy case because of changes in the
relative operating economics of
generating capacity. In some instances
an avoided closure can result in an
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avoided full facility closure. Overall, the
final rule will lead to early retirement of
approximately 4 GW of generating
capacity and approximately 3 GW of
avoided closure of capacity otherwise
projected to retire by 2030, resulting in
a net closure of approximately 1 GW of
generating capacity. With only one
exception, these retirements involve
older, less efficient generating units
with very low capacity utilization rates.
Five of the eight analyzed NERC
regions record modest increases in
retired capacity, with the largest
increase, 0.8 percent of baseline retired
capacity, projected to occur in TRE. One
NERC region—SPP—avoids capacity
closures, where 1.5 percent of capacity
otherwise projected to retire in the
baseline, becomes a more economically
viable source of electricity in the policy
case due to changes in the relative
economics of electricity production
across the full market, and thus avoids
closure.132 Consequently, the final rule
is not expected to have a material
ongoing effect on capacity availability
and supply reliability at either the
national or the NERC region level.
The 1 GW of retired capacity is
replaced by new, more efficient, and
less polluting capacity. Because the new
capacity is more efficient and less costly
to run than the retired capacity, it will
run at a higher capacity utilization rate
than the retired capacity; less new
capacity is required to meet electricity
demand than the retired capacity that it
replaces. As shown in Exhibit IX–11,
under the final rule, new capacity
additions increase by 1 GW at the
national level; this increase represents
0.5 percent of new baseline capacity and
0.1 percent of total baseline capacity
(see Exhibit IX–10). This increase in
new capacity is mostly comprised of
combined cycle capacity followed by
other non-steam capacity, with coal
steam capacity additions remaining zero
in both the baseline case and the policy
case. Consequently, this analysis shows
that the final rule is not likely to impede
construction of new combined cycle and
coal steam generating units.133
As reported in Exhibit IX–10, overall,
the final rule has only a slight impact on
electricity prices. For three out of eight
NERC regions, electricity prices decline
132 Avoided closures may occur among facilities
that incur no compliance costs under the final rule
or for which compliance costs are low relative to
the costs estimated for other regulated facilities.
133 As described earlier in this preamble, under
the new unit provision of the final rule, new units
as defined at 125.92 include, stand-alone fossil fuel
and combined cycle units. As described in Chapter
6 of the EA, the IPM analysis accounts only for
compliance costs associated with new units.
Further, EPA assigned these costs only to coal
steam and combined cycle capacity.
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slightly—by no more than $0.05 per
MWh (0.1 percent) in TRE. Electricity
prices increase in the remaining five
NERC regions, with the largest increase,
$0.29 per MWh (0.4 percent), occurring
in NPCC. These very small estimated
changes in electricity prices are
essentially within the analytic ‘‘noise’’
of the electricity market modeling
system.
At the national level, total generation
costs increase by 0.3 percent of the
baseline value—again, a very modest
amount. Across regions, no NERC region
records an increase in total costs
exceeding 0.5 percent. The change in
variable production costs ($/MWh)—a
specific measure of the effect of the final
rule on short-run electricity generation
costs—is nearly zero with no NERC
region recording a consequential
change.
EXHIBIT IX–10—IMPACT OF THE FINAL RULE ON NATIONAL AND REGIONAL MARKETS, AT THE YEAR 2030
Total
baseline
capacity
(GW)
NERC
region a
Net changes in early
retirements
Changes in
variable costs
% of
total
baseline
capacity
GW
$2011/MWh
Changes in
total costs
% of
baseline
Changes in
electricity price
% of
baseline
Mill 2011$
$2011/MWh
% of
baseline
FRCC .......
MRO .........
NPCC .......
RFC ..........
SERC .......
SPP ..........
TRE ..........
WECC ......
68
76
73
237
274
59
98
220
0
0
0
0
0
¥1
1
0
0.30
0.00
0.50
0.10
0.10
¥1.50
0.80
0.00
¥$0.03
0.01
0.00
0.01
0.02
0.02
¥0.01
0.00
¥0.10
0.10
0.00
0.00
0.10
0.10
0.00
0.00
$51
62
28
157
182
31
48
9
0.30
0.40
0.20
0.30
0.30
0.30
0.30
0.00
¥0.01
0.21
0.29
0.15
0.08
¥0.01
¥0.05
0.03
0.00
0.30
0.40
0.20
0.10
0.00
¥0.10
0.00
Total ..
1,106
1
0.10
0.00
0.00
568
0.30
....................
N/A
a FRCC
(Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity),
and WECC (Western Electricity Coordinating Council).
EXHIBIT IX–11—IMPACT OF THE FINAL RULE ON NEW CAPACITY (GW), AT THE YEAR 2030
Final rule
Capacity type
Baseline value
Value
Difference
% Change
Coal Steam ......................................................................................................
Combined Cycle ..............................................................................................
Combustion Turbine ........................................................................................
Hydro ...............................................................................................................
Nuclear .............................................................................................................
O/G Steam .......................................................................................................
Other Non-Steam a ...........................................................................................
Other Steam b ..................................................................................................
0
75
6
0
0
0
25
9
0
76
6
0
0
0
25
9
0
1
0
0
0
0
0
0
NA
0.8
0.0
NA
NA
NA
0.1
0.0
Total ..........................................................................................................
114
115
1
0.5
a Other
b Other
non-steam capacity includes wind, solar, pumped storage, and fuel cell.
steam capacity includes biomass, geothermal, municipal solid waste, fossil waste, landfill gas, tires, and non-fossil waste.
emcdonald on DSK67QTVN1PROD with RULES2
Impact on Regulated Facilities as a
Group
EPA used the same IPM V4.10_MATS
analysis results for 2030 as those used
to assess market-level impacts described
above; however, this analysis considers
the effect of the final rule only on
regulated facilities modeled in IPM (i.e.,
520 facilities). For this analysis, EPA
considered four output metrics:
(1) Incremental capacity closures; (2)
changes in capacity closures as a
percent of total baseline capacity; (3)
changes in total generation; and (4)
changes in variable production costs per
MWh.
As shown in Exhibit IX–12, for the
group of regulated facilities, the impact
of the final rule is overall slightly
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greater than that observed over all
generating units in the IPM universe
(i.e., market-level analysis discussed in
the preceding section). This difference
is due to the fact that in the electricity
market as a whole, impacts on regulated
facilities, which become less
competitive compared to facilities that
do not incur compliance costs, are offset
by changes in capacity and energy
production at the other electric power
facilities. Nevertheless, the impact on
the group of regulated facilities remains
small. For instance, while there is
essentially no change in total available
capacity for the overall electricity
market at the national level, for the
group of regulated facilities, total
available capacity falls by only 0.4
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percent (2 GW). At the regional level,
five NERC regions incur loss in total
capacity, with the largest percentage
loss of 2.8 percent and the largest
absolute loss of 0.9 GW occurring in the
NPCC region.
The 2 GW of capacity loss at regulated
facilities reflects a combination of
closures and avoided closures of
generating units in the universe of
regulated facilities. Some unit closures
result in full facility closures (i.e., all
generating units at a facility close),
while others result in only partial
facility closures (i.e., some, but not all,
generating units at a facility close). For
avoided closures, a generating unit
projected to close in the baseline case
but remains open under the policy case,
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in some instances resulting in an
avoided full facility closure. Overall, 22
generating units close (4 GW) and 12
generating units avoid closure (2 GW) in
the policy case, resulting in net closure
of 10 generating units (approximately 2
GW) in Electricity Market Analysis—
Final Rule analysis. The 22 generating
unit closures reflect retirement of nine
units at six full-closure facilities (2 GW)
and retirement of 13 units at six partialclosure facilities (2 GW). With only one
exception, these retirements involve
electricity generation of no more than
0.4 percent in FRCC.
Over all regulated facilities, there is
essentially no change in variable
production costs ($/MWh) at the
national level, while at the NERC region
level, the change does not exceed 0.2
percent for any of the regions. These
findings of very small effects confirm
EPA’s assessment that the assessed
capacity closures among regulated
facilities are of little economic
consequence at both the national and
regional levels.
older, less efficient generating units
with very low capacity utilization rates.
At the national level, for the group of
regulated facilities, total generation at
regulated facilities declines by less than
2 GWh or approximately 0.1 percent of
baseline generation in these facilities.
The MRO and SERC regions record
slight increases in generation essentially
amounting to zero percent of baseline
generation at regulated facilities in these
regions, with the remaining five NERC
regions recording a reduction in
EXHIBIT IX–12—IMPACT OF ELECTRICITY MARKET ANALYSIS OPTIONS ON THE GROUP OF REGULATED FACILITIES, AT THE
YEAR 2030
Net change
in early
retirements/closures
Baseline
capacity
(MW)
NERC region a
Capacity
(MW)
Change in
generation
% of
baseline
Change in
variable
production cost
% of
baseline
GWh
% of
baseline
$2011/MWh
FRCC .......................................................
MRO .........................................................
NPCC .......................................................
RFC ..........................................................
SERC .......................................................
SPP ..........................................................
TRE ..........................................................
WECC ......................................................
30,794
31,747
30,977
126,905
142,840
24,487
38,378
34,788
203
0
855
223
476
¥530
808
0
0.7
0.0
2.8
0.2
0.3
¥2.2
2.1
0.0
¥527
30
¥25
¥619
3
¥411
¥163
¥8
¥0.4
0.0
0.0
¥0.1
0.0
¥0.3
¥0.1
0.0
¥0.08
0.01
0.00
0.00
0.02
0.01
¥0.02
0.00
¥0.2
0.1
0.0
0.0
0.1
0.0
¥0.1
0.0
Total ..................................................
460,917
2,035
0.4
¥1,721
¥0.1
0.00
0.0
a FRCC
(Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity),
and WECC (Western Electricity Coordinating Council).
Impact on Individual Regulated
Facilities
Results for the group of 520 regulated
facilities as a whole may mask shifts in
economic performance among
individual facilities incurring
compliance costs under the final rule.
To assess potential facility-level effects,
EPA analyzed facility-specific changes
between the baseline case and the final
rule for the following metrics: (1)
Capacity utilization (defined as annual
generation (in MWh) divided by
[capacity (MW) times 8,760 hours]) (2)
electricity generation, and (3) variable
production costs per MWh.
Exhibit XI–13 presents the estimated
number of regulated facilities with
specific degrees of change in operations
and financial performance. Under the
final rule, this analysis shows that most
facilities experience only slight effects—
i.e., no change or less than a 1 percent
reduction or 1 percent increase. Only
six facilities are estimated to incur a
reduction in capacity utilization and 13
facilities a reduction in generation of at
least 1 percent, with only five facilities
estimated to incur an increase in
variable production costs per MWh of at
least 1 percent. These facilities
represent approximately 1 percent of
520 regulated facilities analyzed in IPM.
EXHIBIT IX–13—IMPACT OF THE ELECTRICITY MARKET ANALYSIS—FINAL RULE ON INDIVIDUAL REGULATED FACILITIES AT
THE YEAR 2030
[Number of regulated facilities with indicated effect]
Reduction
emcdonald on DSK67QTVN1PROD with RULES2
Economic measures
≥1 and
<3%
≥3%
Change in Capacity Utilization a ......................
Change in Generation ......................................
Change in Variable Production Costs/MWh ....
1
9
2
Increase
No
Change
<1%
5
4
1
45
37
70
≥1 and
<3%
<1%
340
345
86
35
29
242
N/A b c
≥3%
2
2
4
0
2
1
92
92
114
a The change in capacity utilization is the difference between the capacity utilization percentages in the baseline and policy cases. For all other
measures, the change is expressed as the percentage change between the baseline and post-compliance values.
b Facilities with status changes in either the baseline case or the policy case were excluded from these calculations. Specifically, there are 17
full baseline facility closures, 59 partial baseline facility closures, four avoided partial facility closures, six partial policy facility closures, and six
partial policy facility closures.
c The change in variable production cost per MWh could not be developed for 22 facilities with zero generation in either the baseline case or
the policy case.
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
ii. Analysis Results for 2020—To
Capture the Effect of TechnologyInstallation Downtime
This section presents market-level
results for the final rule for the 2020
IPM run year, which represents 2017
through 2024. As discussed above, this
IPM run year captures the period when
regulated facilities are expected to
install compliance technologies under
the final rule. Of particular importance
as a potential impact, the additional
downtime from installation of
compliance technologies could manifest
as increased electricity production costs
resulting from the dispatch of higher-
48397
costs increase in all NERC regions, with
MRO and SPP recording the largest
increase of 0.6 percent.
At the national level, variable
production costs ($/MWh) increase by
approximately 0.2 percent. While the
effect on variable production costs
varies across NERC regions, this effect is
small overall, with the largest increase
of less than 0.4 percent occurring in
FRCC. While electricity prices increase
in all NERC regions, the magnitude of
that increase is generally small, ranging
from $0.15 per MWh (0.3 percent) in
MRO and WECC to $0.56 per MWh (0.9
percent) in FRCC.
production-cost generating units during
the period when units are taken offline
to install compliance technologies.
Because these effects are of most
concern in terms of potential impact on
national and regional electricity
markets, this section presents results
only for the overall electricity market
and does not present results for the
subset of regulated facilities.
As shown in Exhibit IX–14, the
estimated effects of technologyinstallation downtime under the final
rule are small. At the national level,
total production costs increase by 0.4
percent. At the regional level, these
EXHIBIT IX–14—SHORT-TERM EFFECT OF TECHNOLOGY INSTALLATION DOWNTIME ON NATIONAL ELECTRICITY MARKET
UNDER THE FINAL RULE—2020
Change in
generation
Change in
variable
production cost
NERC Region a
% of
baseline
2011$/MWh
2011$/MWh
Change in
total costs
Million
2011$
% of
baseline
Change in
electricity price
% of
baseline
FRCC ...............................
MRO .................................
NPCC ...............................
RFC ..................................
SERC ...............................
SPP ..................................
TRE ..................................
WECC ..............................
¥108
52
¥88
447
¥369
¥53
0
33
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.13
0.03
0.05
0.03
0.04
0.08
0.08
0.04
0.4
0.2
0.2
0.1
0.1
0.3
0.3
0.2
51
64
31
164
185
56
64
39
0.5
0.6
0.3
0.4
0.4
0.6
0.5
0.1
Total ..........................
¥88
0.0
0.05
0.2
652
0.4
2011$/MWh
0.56
0.15
0.18
0.19
0.27
0.18
0.21
0.15
% of
baseline
0.9
0.3
0.3
0.4
0.6
0.4
0.4
0.3
N/A
a FRCC
(Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity),
and WECC (Western Electricity Coordinating Council).
emcdonald on DSK67QTVN1PROD with RULES2
EPA recognizes any capacity outages
estimated to occur in conjunction with
installation of compliance technologies
at existing units will require outage
coordination by the system operator or
other planning authority. Where
possible, these outages would be
scheduled in concurrence with normal
scheduled maintenance outages. Permit
authorities are provided flexibility to
tailor compliance timelines. This
flexibility will ensure that any adverse
impact on local electric reliability as a
result of this rule will be avoided.
Facilities would receive workable
construction schedules from permit
writers that will allow schedule outages
for installation without adversely
affecting electric supply reliability.
analysis). Similarly to the electric
generators analysis, for the
manufacturers facility-level and entitylevel analyses, the Agency assumed that
facilities would pass none of their
compliance costs forward to customers
as price increases, i.e., all compliance
costs will be absorbed by regulated
facilities and their parent entities. For
details on the cost-pass-through (CPT)
analysis for information on this
assumption, see the EA, Appendix K.
EPA developed and used sample
weights to extrapolate impacts assessed
initially at the level of a sample of
facilities to the full population of
regulated facilities. For information on
the development and use of sample
weights, see EA Appendix H.
2. Manufacturers
This section presents EPA’s estimated
economic impacts on manufacturers for
the final rule and the other options EPA
considered. These analyses assess the
impact of regulatory requirements on
the financial performance of regulated
facilities (facility-level analysis) and the
entities that own them (entity-level
a. Facility-Level Impact Analysis for
Manufacturers
EPA conducted two separate facilitylevel analyses for manufacturers: (1) A
stand-alone cost-to-revenue screener
analysis and (2) a facility closure and
financial stress short of closure test. For
the cost-to revenue screener test, shown
in Exhibit IX–15, EPA divided the after-
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tax, annualized compliance cost by
facility-level revenue. Under the final
rule, EPA found that of 500 Primary
Manufacturing Industry facilities, 496
incur costs less than one percent of
revenue, four incur costs between one
and three percent, and none incur costs
greater than 3 percent. For the nine
Other Industries facilities, EPA
estimated that eight facilities would
incur costs less than one percent and
one would incur costs between one and
three percent of revenue. For Proposal
Option 4, all Primary Manufacturing
Industry facilities (500 facilities) and
Other Industry facilities (nine facilities)
incur costs less than one percent of
revenue. Under Proposal Option 2, 491
Primary Manufacturing Industry
facilities incur costs less than one
percent and nine facilities incur costs
between one and three percent, while
seven Other Industry facilities incur
costs less than one percent, one facility
incurs costs between one and three
percent, and one facility incurs costs
greater than three percent.
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EXHIBIT IX–15—FACILITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS
Number of facilities with a
cost-to-revenue ratio of a
Option
≥1 and <3%
<1%
≥3%
Primary manufacturing industries
Proposal Option 4 ....................................................................................................................................
Final Rule .................................................................................................................................................
Proposal Option 2 ....................................................................................................................................
500
496
491
0
4
9
0
0
0
9
8
7
0
1
1
0
0
1
Other industries
Proposal Option 4 ....................................................................................................................................
Final Rule .................................................................................................................................................
Proposal Option 2 ....................................................................................................................................
a EPA conducted this analysis for 579 facilities in the Primary Manufacturing Industries and 10 facilities in the Other Industries. Note, these facility counts and analysis exclude facilities identified as baseline closures in the severe impact analysis, which is described below.
For the second analysis, EPA assessed
how compliance costs would likely
affect financial performance and
condition of the 509 manufacturers 134
using two measures: (1) Facility closures
(severe impacts) and associated losses in
revenue and employment, and (2)
financial stress short of closure
(moderate impacts).
For the analysis of severe impacts,
EPA identified a facility as a regulatory
closure if it would have operated under
baseline conditions but would not be
financially viable under the new
regulatory requirements and the costs of
the final rule leading to that finding
exceeded a threshold of 0.1 percent of
revenue. Specifically, the Agency
examined the facility’s going-concern
value before and after meeting
regulatory requirements. EPA used a
discounted cash flow framework in
which after-tax cash flow is discounted
at an estimated cost of capital to
calculate the going concern value of the
facility.135 In conjunction with the
discounted cash flow analysis, EPA
tested whether annualized costs
exceeded 0.1 percent of revenue by
dividing the after-tax, annualized total
compliance cost by facility-level
revenue. If this analysis found that the
facility’s business value would become
negative as a result of estimated
compliance costs and the annualized
cost of compliance exceeded 0.1 percent
of revenue, EPA classified the facility as
a regulatory closure.
For facilities estimated not to close
under the severe-impact test, EPA
conducted a moderate-impact test to
assess whether any would experience
financial stress short of closure as the
result of regulatory requirements (e.g.,
higher costs of capital borrowing). EPA
used two financial performance
measures to test for occurrence of
financial stress: (1) Interest coverage
ratio and (2) pre-tax return on assets.
The Agency compared these measures
before and after compliance with
regulatory requirements against
industry-specific performance
thresholds for the two financial
measures. If both measures for a facility
exceeded the threshold in the baseline,
and at least one measure fell below the
threshold in the post-compliance case,
EPA counted this as a moderate impact
based on the rule.
Exhibit IX–16 presents the results
from the severe-impact and moderateimpact analyses. EPA estimated that no
facilities would be at risk of closure as
a result of the final rule and that 12
facilities could experience financial
stress short of closure. For Proposal
Option 4, EPA also estimated no
closures, while moderate impacts are
significantly lower, estimated at two
facilities. Under Proposal Option 2, EPA
estimated that one facility would be at
risk of closure, while the moderate
impact finding is the same as for the
final rule: 12 facilities. Again, this
analysis is conducted assuming that all
the costs are borne by the facility and
cannot be passed along, an assumption
that is highly unlikely to be true, as
many of these facilities are in industries
where there is some market power and
barriers to entry. Thus, these tests
present worst case scenario results.
EXHIBIT IX–16—FACILITY IMPACTS AND COMPLIANCE COSTS FOR MANUFACTURERS d
Proposed
option 4
Proposed
option 2 c
Final rule
Primary manufacturing industries a
emcdonald on DSK67QTVN1PROD with RULES2
Number of Facilities Operating in Baseline .................................................................................
Number of Closures (Severe Impacts) ........................................................................................
Percentage of Facilities Closing ..................................................................................................
Number of Facilities with Moderate Impacts ...............................................................................
Percentage of Facilities with Moderate Impacts .........................................................................
500
0
0%
2
1%
500
0
0%
12
3%
500
1
0%
12
3%
9
0
9
0
9
0
Other industries b
Number of Facilities Operating in Baseline .................................................................................
Number of Closures (Severe Impacts) ........................................................................................
134 This is a sample-weighted estimate of the
number of manufacturers, calculated using
economic weights. This number excludes 70
facilities estimated to be at substantial risk of
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financial failure regardless of any additional
financial burden that might result from the final
rule or other options considered in development of
this rule. For details see EA Appendix H.
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135 This after-tax cash flow analysis conducted for
manufacturers is similar in concept to the cash flow
analysis conducted for electric generators through
the IPM analysis.
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EXHIBIT IX–16—FACILITY IMPACTS AND COMPLIANCE COSTS FOR MANUFACTURERS d—Continued
Proposed
option 4
Percentage of Facilities Closing ..................................................................................................
Number of Facilities with Moderate Impacts ...............................................................................
Percentage of Facilities with Moderate Impacts .........................................................................
Proposed
option 2 c
Final rule
0%
0
0%
0%
0
0%
0%
0
0%
a Primary Manufacturing Industries include facilities in the Aluminum, Chemicals and Allied Products, Food and Kindred Products, Paper and
Allied Products, Petroleum Refining, and Steel industries.
b Other Industries include cooling water-dependent facilities in industries whose principal operations lie in businesses other than the electric
power industry or the Primary Manufacturing Industries.
c Under Proposal Option 2, the percentage of facilities closing is 0.3 percent.
d The analysis assumes no cost pass through.
b. Entity-Level Impact Analysis
EPA also examined the impact of
regulatory requirements on entities that
own regulated manufacturers facilities.
An entity that owns multiple facilities
could be adversely affected because of
the cumulative burden of regulatory
requirements the facilities face. For this
analysis, a parent entity is the domestic
parent entity with the largest ownership
share in a regulated facility. For each
identified parent entity, EPA aggregated
facility-level, annualized, after-tax
compliance costs to the level of the
parent entity and compared these entity-
level costs to entity-level revenue.
Similarly to electric generators, EPA
used cost-to-revenue thresholds of 1 and
3 percent as thresholds for categorizing
levels of impacts.
EPA considered two cases, based on
two sets of entity-level. These cases,
which are described in the EA,
Appendix H, provide a range of
estimates for the number of entities
incurring compliance costs and the
costs incurred by any entity owning a
regulated facility. EPA conducted this
analysis for 509 facilities in the primary
manufacturing industries and 12
facilities in other industries.136 For
information on the methodology used
for the entity-level cost-to-revenue
analysis, see the EA, Chapter 5.
Exhibit IX–17 presents the results
from the entity-level analysis for these
two cases. EPA estimated that between
120 and 337 entities own 521 regulated
facilities. Under the final rule, between
90 and 95 percent of all entities are
estimated to incur compliance costs of
less than 1 percent of revenue. This is
true also for Proposal Option 2. Under
Proposal Option 4, more entities are
expected to incur compliance costs of
less than 1 percent of revenue (between
94 and 96 percent of all entities).
EXHIBIT IX–17—ENTITY-LEVEL COST-TO-REVENUE ANALYSIS RESULTS
Option
Not analyzed due to
lack of revenue
information
#
Number of entities with a cost-to-revenue ratio of
≥ 1% and < 3%
< 1%
%
#
%
#
≥ 3%
%
#
%
Case 1: Lower bound estimate of number of entities that own regulated facilities; upper bound estimate of total compliance costs that an entity
may incur b
Proposal Option 4 ............
Final Rule .........................
Proposal Option 2 ............
5
5
5
4
4
4
113
108
108
94
90
90
2
6
6
2
5
5
0
1
1
0
1
1
Case 2: Upper bound estimate of number of entities that own regulated facilities; lower bound estimate of total compliance costs that an entity
may incur c
Proposal Option 4 ............
Final Rule .........................
Proposal Option 2 ............
a The
b The
c The
12
12
12
4
4
4
96
95
95
a0
1
6
6
2
2
0
0
0
0
0
0
percentage of entities with impacts greater than or equal to 1 percent and less than 3 percent is less than 0.5 percent.
total number of entities under Case 1 is 120.
total number of entities under Case 2 is 337.
E. Employment Effects
emcdonald on DSK67QTVN1PROD with RULES2
324
319
319
To study employment effects of this
rule, EPA considered the potential
effects of the final rule, focusing on the
impacts of meeting compliance
requirements in the directly regulated
industry sectors: The Electric Power
Industry, and selected Primary
Manufacturing Industries, including
136 This is a sample-weighted estimate of the
number of manufacturer facilities, calculated using
technical weights. This number excludes 67
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Aluminum, Chemicals and Allied
Products, Food and Kindred Products,
Paper and Allied Products, Petroleum
Refining, and Steel Manufacturing.
When the economy is at full
employment, an environmental
regulation is unlikely to have much
impact on net overall U.S. employment;
instead, labor would primarily be
shifted from one sector to another.
These shifts in employment impose an
opportunity cost on society,
approximated by the wages of the
employees, as regulation diverts
workers from other activities in the
economy. In this situation, any effects
on net employment are likely to be
transitory as workers change jobs (e.g.,
some workers may need to be retrained
or require time to search for new jobs,
facilities estimated to be at substantial risk of
closure regardless of any additional financial
burden that might result from the regulatory options
under consideration.
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emcdonald on DSK67QTVN1PROD with RULES2
while shortages in some sectors or
regions could bid up wages to attract
workers).
On the other hand, if a regulation
comes into effect during a period of high
unemployment, a change in labor
demand due to regulation may affect net
overall U.S. employment because the
labor market is not in equilibrium.
Schmalansee and Stavins 137 point out
that net positive employment effects are
possible in the near term when the
economy is at less than full employment
due to the potential hiring of idle labor
resources by the regulated sector to meet
new requirements (e.g., to install new
equipment) and new economic activity
in sectors related to the regulated sector.
In the longer run, the net effect on
employment is more difficult to predict
and will depend on the way in which
the related industries respond to the
regulatory requirements. As
Schmalansee and Stavins note, the
magnitude of the effect on employment
could vary over time, region, and sector,
and positive effects on employment in
some regions or sectors could be offset
by negative effects in other regions or
sectors. For this reason, they urge
caution in reporting partial employment
effects because it can ‘‘paint an
inaccurate picture of net employment
impacts if not placed in the broader
economic context.’’
In that spirit, unlike the analysis for
the proposed rule, for the final rule EPA
is not estimating quantitative
employment impacts and instead,
including only a qualitative discussion.
The methods used at proposal were not
sufficiently robust, largely because they
relied on an input-output analysis that
assumed fixed production relationships
and used historical data to estimate the
labor and other inputs required for
compliance with the rule. Since
publication of the proposed rule, EPA
has concluded that input-output
analysis is inappropriate for assessing
employment impacts of national-level
regulations. Input-output models are
static, do not include prices, and
assume the supply of all inputs is
inexhaustible. They do not model a
wide variety of adjustments that are
expected to occur over time, such as
changes in production processes,
technology or trade patterns.138 After
reviewing the public comments EPA
137 Schmalansee, Richard, and Robert N. Stavins.
‘‘A Guide to Economic and Policy Analysis of EPA’s
Transport Rule.’’ White paper commissioned by
Exelon Corporation, March 2011 (Docket EPA–HQ–
OAR–2011–0135–0054).
138 For a discussion of input-output models see
Chapter 8 of the EPA Handbook on the Benefits,
Costs, and Impacts of Land Cleanup and Reuse
(2011).
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received on the proposed rule, the
Agency concludes that the commenters
have not identified any specific
improvements to the employment
analysis of the proposed rule. Thus,
today’s final rule EA includes a
qualitative discussion highlighting the
variety of potential adjustments in the
labor market that may follow the
rulemaking.
To elaborate on the difficulty of
deriving high quality estimates of how
environmental regulations will impact
net employment, the task requires
consideration of labor demand in both
the regulated and environmental
protection sectors, as well as labor
supply more generally. Economic theory
predicts that the net effect of an
environmental regulation on labor
demand in regulated sectors could be
positive or negative; the direction of the
outcome depends on the magnitude of
output and substitution effects,
explained further in the EA. Peerreviewed econometric studies that use a
structural approach, applicable to
overall net effects in the regulated
sectors, indicate that such effects,
whether positive or negative, have been
small and have not affected employment
in the national economy in a significant
way (Berman and Bui 2001,
Morgenstern, Pizer and Shih 2002).
Effects on labor demand in the
environmental protection sector seem
likely to be positive.
In aggregate, the environmental
protection sector is likely to experience
a temporary increase in jobs created as
more compliance technology systems
are designed, manufactured, and
installed attributable to the final rule. In
addition, because of regional variation
in consumption patterns and the
presence of regulated facilities and
supporting industries, short- and longrun employment effects likely will vary
across the United States. It is possible
that positive net employment effects
will occur in the near term due to the
hiring of idle labor resources by the
regulated sectors to plan for and meet
new technology control requirements
rather than diverting workers from other
productive employment. However, it is
also possible that in the long run, as the
economy returns to full employment,
any changes in employment in the
regulated sectors due to the final rule
will be offset by employment changes in
other sectors. These dynamics
compound the uncertainty in estimating
employment effects for a substantial
number of years into the future.
Even if regulated facilities are able to
reduce the impact of regulatory
requirements by changing their
production processes in the post-rule
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environment, production costs may still
be higher compared to those before the
rule. As a result, regulated facilities may
seek to increase their product prices in
response to the higher production costs.
For example, attempts by electric
generators to recover increases in
electricity generation costs, however
small, are likely to result in higher
electricity rates. The impact of this
increase will vary by region, customer
group (e.g., industrial, commercial,
transportation, and residential), and by
industry, depending on the electricityuse intensity.139 Further, the extent to
which electric generators are able to
pass their costs to consumers through
higher electricity rates, will vary by
region. Specifically, electric generators
operating in regions where electricity
prices remain regulated under the
traditional cost-of-service rate regulation
framework may be able to recover
compliance cost-based increases in
increased rates.140 However, cost
recovery is less certain for electric
generators operating in States where
electric power generation has been
deregulated, and will depend on the
competitive circumstances of
specifically affected facilities.
Overall, the long-run changes in
employment will likely depend on how
the electric power industry, primary
manufacturing industries, and other
industries adjust in response to the new
regulatory requirements, and on the
upstream and downstream effects of
those adjustments on the rest of the
economy, as well as the overall state of
the economy and labor markets. The
long-run employment effects in the
directly affected sectors will depend on
a number of economic factors. These
factors include changes in labor
requirements to operate the
infrastructure in general and
compliance technology in particular at
regulated facilities, the potential to
change production processes to become
less dependent on cooling water,
availability of alternative technologies
to meet compliance requirements, and
changes in demand for the outputs of
the directly affected sectors. Because
139 See the EA Chapter 6: Electricity Market
Analysis for assessment of the impacts of increased
production costs on wholesale electricity prices and
Chapter 4: Economic Impact Analysis—Electric
Generators for analyses of the impacts on retail
rates by customer group.
140 However, even for electric generators
operating under traditional rate regulation, the
recovery of cost increases through increased rates
is not certain, and will depend on additional factors
such as the facility ownership structure and
operating model, approval of public utility
commissions, and the importance and role of
market mechanisms in dispatching production of
electricity across generating units. See Chapter 2A
of the EA for additional discussion.
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these and many other interrelated
factors include data and methodology
limitations, it is difficult to fully assess
the employment impacts of the final
rule. However, based on the available
evidence from several peer-reviewed
econometric studies mentioned above
that are applicable to net effects in the
regulated sectors and that closed-cycle
recirculating systems was rejected as
national BTA for entrainment, EPA
expects that employment impacts of
today’s rule are not likely to be
substantial.
X. Benefits Analysis
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A. Introduction
This section presents EPA’s estimates
of the national environmental benefits
of the final existing facilities rule and
other options considered by EPA. This
section describes how EPA calculated
values for those benefits it could
monetize. EPA did not rely on the
results of its stated preference survey in
estimating the benefits of today’s rule. It
also presents descriptive information for
those benefits for which EPA could not
develop a monetary value. The benefits
EPA assessed occur because of
reductions in impingement and
entrainment at cooling water intake
structures affected by the rulemaking
and changes in greenhouse gas
emissions at regulated facilities.
Impingement occurs where fish and
other aquatic life are trapped on
equipment as they enter the cooling
water intake structure. Entrainment
occurs where aquatic organisms,
including eggs and larvae, are drawn
into the cooling system, passed through
the heat exchanger, and discharged back
into the source waterbody. Impingement
and entrainment kill or injure large
numbers of aquatic organisms across all
life stages. On the basis of entrainment
data presented in facility studies, EPA
assumes a mortality rate of 100 percent
for entrained individuals. Mortality is
then reduced on the basis of the
efficiency of technology in place in
reducing mortality rates, or by reducing
levels of impingement and
entrainment.141 By reducing
impingement mortality and
entrainment, the final existing facilities
rule is likely to increase the number of
fish, shellfish, and other aquatic
organisms in affected water bodies
resulting in healthier aquatic
environments. In turn, this healthier
aquatic environment directly improves
welfare for individuals using the
affected aquatic resources, generating
141 See the discussion in Section III on
entrainment mortality data and assumptions.
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use benefits such as increases in the
value of recreational and commercial
fisheries or increases in property values.
Reductions in impingement mortality
and entrainment also improve welfare
for individuals without use of the
affected resources, generating nonuse
benefits, such as improved ecosystem
function and resource bequest values.
Section D provides an overview of the
types and sources of benefits EPA
anticipated, how EPA estimated these
benefits, and the level of benefits that
the final rule and other options EPA
considered for the rule would achieve.
EPA derived national benefit
estimates for the final rule and other
options considered from a series of
regional studies representing a range of
waterbody types and aquatic resources.
Section B provides detail on the
regional study design. Section C
describes the impingement and
entrainment effects and Section D
presents the national benefits estimates.
The methodologies used to estimate
benefits are largely built on those used
to estimate benefits for the remanded
Phase II and Phase III and the proposed
existing facilities rules. In addition to
updating these analyses, EPA more fully
investigated the effects of impingement
mortality and entrainment on T&E
species, incorporated benefits from
greenhouse gas reductions, and
improved its estimation of nonuse
benefits. The Benefits Analysis
document for the final existing facilities
rule (referred to as the BA) provides
detailed descriptions of the new
methodologies EPA used to analyze the
benefits of regulatory options, and
provides references to (i) Part A of the
2004 Regional Benefits Analysis for the
Final Section 316(b) Phase II Rule, and
(ii) Part A of the 2006 Regional Benefits
Analysis Document for the Final Section
316(b) Phase III Existing Facilities Rule
for analyses using similar
methodologies.
The BA provides EPA’s benefit
estimates for the final rule and
considered options. EPA relied on
information collected in the 2000
section 316(b) industry surveys (the
Industry Screener Questionnaire (SQ)
and the Detailed Industry Questionnaire
(DQ)) on cooling water systems and
intake structures already in place to
estimate the number of regulated
facilities under regulatory options
considered for the final existing
facilities rule. For the analysis of
regulated electric generators, EPA used
information from 656 regulated electric
generating facilities that responded to
the section 316(b) industry surveys on
cooling water systems and intake
structures already in place. Because the
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48401
DQs were sent to a sample of the
manufacturing industries that use
cooling water, the respondents were
assigned sample weights designed to
represent other facilities in other
manufacturing industries that were not
covered in the survey. All regulated
facilities have a DIF of at least 2 mgd.
EPA estimated regional benefits from
the sample of facilities for which EPA
has sufficient DQ information to
estimate the environmental impacts of
regulatory options. The environmental
impacts from the set of explicitly
analyzed facilities were then
extrapolated to the universe of facilities
in a region using statistical weights
developed for this analysis. National
benefits are estimated as the sum of the
regional benefits.
As described above at Section IX, the
findings presented in this section
assume that all facilities with
impoundments will qualify as having
closed-cycle recirculating systems in the
baseline. For purposes of this analysis,
EPA did not estimate IM&E reductions
for these facilities under the final rule
and other options considered; however,
these facilities remain subject to today’s
rule and are assigned administrative
costs. To the extent that some of these
facilities do not qualify as having
closed-cycle cycle recirculating systems
in the baseline, the monetized benefits
reported in this section may be
underestimated. EPA notes that the vast
majority of these facilities occur in the
Inland benefits region. Any
underestimation in monetized benefits
due to the treatment of facilities with
impoundments is likely to be minor
because commercial fishing benefits and
nonuse benefits are not estimated for the
Inland region.
B. Regional Study Design
EPA evaluated the benefits of today’s
rule in seven study regions.142 Regions
were defined on the basis of ecological
similarities within regions (e.g.,
freshwater versus marine, similar
communities of aquatic species), and on
characteristics of commercial and
recreational fishing activities. The seven
study regions are: California,143 North
Atlantic, Mid Atlantic, South Atlantic,
Gulf of Mexico, Great Lakes, and Inland.
The five coastal regions EPA identified
(California, North Atlantic, MidAtlantic, South Atlantic, and Gulf of
Mexico) correspond to those of the
142 Benefits associated with changes in
greenhouse gas emissions were estimated for the
nation as whole.
143 The California region includes facilities in
State of California and four facilities in Hawaii. No
coastal facilities are in Oregon, and one facility in
Washington is classified as a baseline closure.
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
National Oceanic and Atmospheric
Administration’s National Marine
Fisheries Service. The Great Lakes
region includes Lake Ontario, Lake Erie,
Lake Huron (including Lake St. Clair),
Lake Michigan, Lake Superior, and the
connecting channels (Saint Mary’s
River, Saint Clair River, Detroit River,
Niagara River, and Saint Lawrence River
to the Canadian border) as defined in 33
U.S.C. 1268, Sec. 118(a)(3)(b). The
Inland region includes all remaining
facilities that withdraw water from
freshwater lakes, rivers, and reservoirs,
including inland facilities in coastal
states. Notably, of the 435 facilities that
are on freshwater streams or rivers, 30
percent (132) have average actual intake
flow that is greater than 5 percent of the
mean annual flow of the source waters,
which is a significant amount of the
source water flow. During periods of
low river flow, or during periods of
higher than average withdrawals of
cooling water, the proportionate
withdrawal of source waters could be
much higher. Thus, the potential for
adverse environmental impacts could
increase dramatically during these
periods. The number and total
operational intake flow of all 316(b)
facilities by study region are presented
in Exhibit X–1.
EXHIBIT X–1—NUMBER OF SURVEYED FACILITIES AND TOTAL MEAN OPERATIONAL FLOW, BY REGION
Flow (billions of gallons per day)
Number of
surveyed
facilities a
Region
Non-recirculating
facilities b
Recirculating
facilities
Total flow
California c ................................................................................
Great Lakes .............................................................................
Inland d .....................................................................................
Mid-Atlantic ..............................................................................
Gulf of Mexico ..........................................................................
North Atlantic ...........................................................................
South Atlantic ...........................................................................
21
50
566
46
22
21
12
10.65
16.24
107.56
24.69
10.14
5.93
5.91
0.00
0.24
18.06
0.07
0.05
0.00
0.05
10.65
16.47
125.62
24.76
10.18
5.93
5.96
All Regions ...............................................................................
738
181.12
18.46
199.58
a This
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table presents unweighted facility counts and flow for surveyed facilities (excluding baseline closures). The regional study design for the
benefits analysis uses weights based on flow rather than facility counts. EPA did not develop weighted facility counts by benefits region. The ‘‘All
Regions’’ total of 738 surveyed facilities includes 532 electric generating facilities and 206 manufacturing facilities, excluding baseline closures.
The total (weighted) estimated universe of facilities, excluding baseline closures, is 1,065 facilities.
b Recirculating facilities are facilities with closed-cycle cooling or impoundments that qualify as closed-cycle cooling. Non-recirculating facilities
include facilities with CWIS classified as once-through.
c The California region includes four facilities in Hawaii. There are no coastal facilities in Oregon and the one coastal facility in Washington is
classified as a baseline closure.
d A facility in Texas has intakes in both the Inland and Gulf of Mexico regions. It is included in the Inland region in the table to prevent the double counting of facilities.
EPA obtained estimates of regional
impingement mortality and entrainment
by extrapolating impingement mortality
and entrainment observed at 98
facilities with impingement and
entrainment studies (model facilities) to
all regulated facilities in the same
region. EPA used regional estimates to
more accurately estimate impacts by
accounting for differences in
ecosystems, aquatic species, and
characteristics of commercial and
recreational fishing activities across
regions. Extrapolation was conducted
on the basis of AIF reported for the
period 1996–1998 by facilities in
response to EPA’s Section 316(b)
Detailed Questionnaire and Short
Technical Questionnaire. Chapter 3 of
the BA provides details of the
extrapolation procedure. Because the
goal of the analysis was to provide
estimates of impingement mortality and
entrainment at regional and national
scales, EPA recognizes that these
averages may not reflect the substantial
variability at individual facilities. In
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spite of this variability, EPA determined
that this extrapolation is a reasonable
basis for developing estimates of
regional- and national-level benefits for
the purposes of the final existing
facilities rule.
C. Physical Impacts of Impingement
Mortality and Entrainment
EPA based the benefits analysis on
facility-provided impingement mortality
and entrainment monitoring data.
Facility data consist of records of
impinged and entrained organisms
sampled at intake structures and
include organisms of all ages and life
stages. Sampling protocols were not
standardized across facilities. Facility
protocols differed in sampling methods
and equipment used, the number of
samples taken, sampling duration, and
the unit of time and volume of intake
flow used to express impingement
mortality and entrainment. To
standardize estimates across facilities,
EPA converted sampling counts into
annual impingement mortality and
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entrainment. Using standard fishery
modeling techniques,144 EPA
constructed models that combined
facility-derived impingement mortality
and entrainment counts with life history
data from the scientific literature to
derive annual estimates of the
following:
• Individuals—the number of
individual organisms impinged and
entrained by facility intakes. Under this
metric, eggs, larvae, juvenile, and adult
organisms are counted as equivalent
individuals.
144 Ricker, W.E. 1975. Computation and
interpretation of biological statistics of fish
populations. Fisheries Research Board of Canada,
Bulletin 191; Hilborn, R. and C.J. Walters. 1992.
Quantitative Fisheries Stock Assessment, Choice,
Dynamics and Uncertainty. Chapman and Hall,
London and New York; Quinn, T.J., II. and R.B.
Deriso. 1999. Quantitative Fish Dynamics. Oxford
University Press, Oxford and New York; Dixon,
D.A. 1999. Catalog of Assessment Methods for
Evaluating the Effects of Power Plant Operations on
Aquatic Communities. Electric Power Research
Institute (EPRI) Final Report. Report number TR–
112013.
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• A1Es (age-one equivalent losses)—
the number of individual organisms of
different ages impinged and entrained
by facility intakes, standardized to
equivalent numbers of 1-year-old fish. A
conversion rate between all life history
stages and age 1 is calculated using
species-specific survival tables based on
life history schedule and age-specific
mortality rates. An individual younger
than age 1 is a fraction of an age-one
equivalent; an individual older than age
1 represents more than one age-one
equivalent. EPA finds it appropriate to
use the A1E measure because
information in the record indicates that
an overwhelming majority of eggs,
larvae and juveniles do not survive into
adulthood and the A1E calculations
adjust for differences in survivorship
based on species and age-specific
mortality rates. EPA recognizes that
using A1Es simplifies a complex
ecological situation, because some of the
smaller fish would provide an
ecological benefit to other species as
food even if they would not survive to
adulthood. Recognizing this as one
nonmonetized benefit in the analysis,
using an A1E approach is the most
reasonable approach available because
to date, there is insufficient data to
account for the extent to which
organisms that do not survive to
adulthood provide a benefit to other
organisms which can be reliably
monetized.
• Forgone fishery yield—pounds of
commercial fish harvest and numbers of
recreational fish and shellfish that are
not harvested because of impingement
mortality and entrainment. EPA used
the Thompson-Bell equilibrium yield
model 145 to convert impingement
mortality and entrainment to forgone
fishery yield, assuming that (1)
impingement mortality and entrainment
reduces the future yield of harvested
adults, and (2) reductions in
impingement mortality and entrainment
rates will lead to an increase in
harvested biomass. The general
procedure involves multiplying age-
emcdonald on DSK67QTVN1PROD with RULES2
145 Ricker, W.E. 1975. Computation and
interpretation of biological statistics of fish
populations. Fisheries Research Board of Canada,
Bulletin 191.
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specific harvest rates by age-specific
weights to calculate an age-specific
expected yield.
• Biomass production forgone—
biomass that would have been produced
had individuals not been impinged or
entrained,146 calculated for all species
from species- and age-specific growth
rates and survival probabilities. It refers
to the mass of impinged and entrained
organisms that would have served as
valuable components of aquatic food
webs, particularly as an important food
supply to other aquatic species.
Estimates of forgone fishery yield
include direct and indirect losses of
impinged and entrained species that are
harvested. Indirect losses represent the
yield of harvested species lost because
of reductions in prey availability
according to a simple trophic transfer
model (i.e., forage species).147 Chapter 3
of the BA contains detailed
methodology for these analyses.
Studies from individual facilities may
underestimate or overestimate
impingement mortality and entrainment
rates at those facilities. For example,
facility studies typically focus on a
subset of fish species affected by
impingement mortality and
entrainment, resulting in other species
being ignored. The number of
individuals lost to impingement
mortality and entrainment is then
underestimated. Estimating the
magnitude of this underestimate is not
possible because of the low number of
replicate studies. Moreover, studies
often do not count early life stages of
organisms that are more difficult to
identify. In addition, many of the
impingement mortality and entrainment
studies used by the Agency were
conducted more than 30 years ago, prior
to the improvement of aquatic
conditions that have resulted from
implementation of the CWA as well as
State and local laws and efforts. In
locations where water quality was
146 Rago, P.J. 1984. Production forgone: An
alternative method for assessing the consequences
of fish entrainment and impingement losses at
power plants and other water intakes. Ecological
Modeling, 24(1–2): 79–111.
147 Indirect losses account for about 10 percent of
commercial and recreational harvest reductions at
baseline.
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48403
degraded at the time of impingement
mortality and entrainment sampling
relative to current conditions, the
abundance and diversity of fish
populations might have been depressed,
resulting in low impingement mortality
and entrainment estimates. Therefore,
use of these data may underestimate the
magnitude of current impingement
mortality and entrainment.
Alternatively, studies could have been
conducted in locations where local fish
populations are now lower than they
were when the study occurred. Such a
shift in fish populations might have
occurred because of natural variability
in populations, because of other
anthropogenic effects (i.e., overharvesting), or because of competition
from invasive species. In such cases, the
use of these data may overestimate the
magnitude of current impingement
mortality and entrainment.
EPA’s use of linear methods for
projecting losses to fish and shellfish in
the waterbody may also overstate or
understate impacts. Nevertheless, the
data from facility studies are the best
means to estimate the relative
magnitude of impingement mortality
and entrainment nationwide. Exhibit X–
2 presents EPA’s estimates of baseline
annual impingement mortality and
entrainment, and reductions in annual
impingement mortality and entrainment
estimated to occur under the final rule
and other options considered.
Impingement mortality and entrainment
reductions under the final rule are less
than the reductions under Proposal
Option 2 and greater than reductions
under Proposal Option 4. Unlike the
analysis of Proposal Option 2, EPA did
not model the entrainment reductions
from cooling tower installation under
the final rule and Proposal Option 4
because these would be based on sitespecific determinations of BTA, which
are not possible to predict with
information EPA has today. EPA
estimated a small amount of
entrainment losses under the final rule
and Proposal Option 4 due to the
assumed installation of variable speed
pumps at some facilities to achieve
compliance via the low velocity
compliance alternative.
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EXHIBIT X–2—BASELINE ANNUAL IM&E AND ANNUAL REDUCTIONS IN IM&E FOR EXISTING UNITS AT ALL FACILITIES
SUBJECT TO THE FINAL RULE
Reduction in annual IM&E by regulatory option b c
Loss
mode a
Proposal
option 4
Final rule—
existing units
Proposal
option 2
Baseline
annual IM&E
Individuals (millions)
IM .....................................................................................................................
E .......................................................................................................................
IM&E ................................................................................................................
419.9
399.8
819.7
441.3
1,693.9
2,135.2
511.9
335,447.6
335,959.4
568.6
497,316.3
497,884.8
647.5
4.5
652.0
748.2
889.3
1,637.5
824.2
1,106.7
1,931.0
13.3
0.1
13.4
15.4
35.7
51.1
16.9
52.9
69.8
136.5
2.4
138.9
157.2
337.0
494.2
174.8
451.8
626.6
Age-One Equivalents (millions)
IM .....................................................................................................................
E .......................................................................................................................
IM&E ................................................................................................................
612.8
1.4
614.2
Forgone Fishery Yield (million lbs)
IM .....................................................................................................................
E .......................................................................................................................
IM&E ................................................................................................................
12.6
0.0
12.6
Production Forgone (million lbs)
IM .....................................................................................................................
E .......................................................................................................................
IM&E ................................................................................................................
129.7
0.5
130.3
a IM
= impingement mortality; E = entrainment; IM&E = impingement mortality and entrainment.
Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
c The totals presented here do not include IM&E reductions associated with new units. Estimated IM&E reductions associated with the new unit
provision of the final rule are presented in Exhibit X–4.
b IM&E
Exhibit X–3 presents EPA’s estimates
of annual impingement mortality and
entrainment for final rule and other
considered options by category of fish
species. Estimates of annual forgone
fishery yield include both direct losses
of harvested species and indirect losses
from reductions in prey fish species.
Organisms convert (on average) only
about 10 percent of the mass of food
they consume into additional tissue
mass. Thus, although essential to
maintain ecosystem function, the vast
majority of biomass moving through
food webs does not reach higher trophic
levels associated with commercial and
recreational species and harvest.
Instead, the biomass of prey species is
metabolized and used for predator
locomotion, reproduction, and tissue
repair. Accordingly, the portion of
impingement mortality and entrainment
that are counted within the forgone
harvest metric represent only a small
percentage of all organisms
experiencing impingement mortality
and entrainment at cooling water intake
structures. Neither forage species nor
the unlanded portion of recreational and
commercial species were assigned direct
use values in this analysis, although
losses in forage species did contribute to
the overall losses in recreational and
commercial species as noted above.
Because the majority of annual
impingement mortality and entrainment
include unharvested recreational and
commercial fish and forage fish,
considering nonuse values in the final
rule benefits analysis is particularly
important. If nonuse values were not
considered at all, only two to three
percent of fish losses would be
represented in monetized benefits.
EXHIBIT X–3—DISTRIBUTION OF ANNUAL BASELINE IM&E AND REDUCTIONS IN IM&E BY SPECIES CATEGORY, FOR
INDIVIDUAL ORGANISMS AND AGE-1 EQUIVALENTS, AT EXISTING UNITS FOR THE FINAL RULE AND OPTIONS CONSIDERED
Reduction in IM&E by regulatory option b c
IM&E
Metric a
Proposal
option 4
Final rule—
existing units
Proposal
option 2
Baseline IM&E
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Individuals (millions)
All Species .......................................................................................................
Forage Species ................................................................................................
Commercial & Recreational Species ...............................................................
Commercial & Recreational Harvest (millions of fish) .....................................
Lost Individuals with Direct Use Value (%) .....................................................
819.7
607.9
211.8
16.1
1.97%
2,135.2
1,423.6
711.5
17.1
0.80%
335,959.4
224,323.1
111,636.3
44.7
0.01%
497,884.8
325,069.1
172,815.8
54.0
0.01%
652.0
1,637.5
1,931.0
Age-One Equivalents (millions)
All Species .......................................................................................................
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EXHIBIT X–3—DISTRIBUTION OF ANNUAL BASELINE IM&E AND REDUCTIONS IN IM&E BY SPECIES CATEGORY, FOR INDIVIDUAL ORGANISMS AND AGE-1 EQUIVALENTS, AT EXISTING UNITS FOR THE FINAL RULE AND OPTIONS CONSIDERED—Continued
Reduction in IM&E by regulatory option b c
IM&E
Metric a
Proposal
option 4
Forage Species ................................................................................................
Commercial & Recreational Species ...............................................................
Commercial & Recreational Harvest (millions of fish) .....................................
A1E Losses with Direct Use Value (%) ...........................................................
Final rule—
existing units
528.2
85.9
16.1
2.63%
560.8
91.2
17.1
2.62%
Proposal
option 2
Baseline IM&E
1,258.7
378.8
44.7
2.73%
1,459.7
471.3
54.0
2.80%
a IM&E
= impingement and entrainment; A1E= age-one equivalent;
Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
c The totals presented here do not include IM&E reductions associated with new units. Estimated IM&E reductions associated with the new unit
provision of the final rule are presented in Exhibit X–4.
b IM&E
In addition to the final rule and other
options analyzed for existing units
(Proposal Option 4 and Proposal Option
2), EPA analyzed requirements for new
units at existing facilities. EPA’s new
unit provision in the final rule
establishes entrainment requirements
for all new stand-alone units at existing
facilities. EPA could not directly apply
the extrapolation methodology used for
existing units because facility-specific
information was not available for new
units. Instead, EPA estimated
impingement mortality and entrainment
reductions on the basis of impingement
mortality and entrainment reductions
per million gallons per day from the
analysis of existing units. The estimated
reduction in impingement mortality and
entrainment for the new unit
requirement is summarized in Exhibit
X–4.
EXHIBIT X–4—ANNUAL REDUCTIONS IN IM&E BY SPECIES CATEGORY FOR THE FINAL RULE FOR NEW UNITS
Reduction in
IM&E b
IM&E metric a
Individuals (millions)
All Species ...........................................................................................................................................................................................
Forage Species ....................................................................................................................................................................................
Commercial and Recreational Species ...............................................................................................................................................
Commercial and Recreational Harvest (millions of fish) .....................................................................................................................
Lost Individuals with Direct Use Value (%) .........................................................................................................................................
867.2
566.1
301.1
0.1
0.01%
Age-One Equivalents (millions)
All Species ...........................................................................................................................................................................................
Forage Species ....................................................................................................................................................................................
Commercial and Recreational Species ...............................................................................................................................................
Commercial and Recreational Harvest (millions of fish) .....................................................................................................................
A1E Losses with Direct Use Value (%) ...............................................................................................................................................
2.3
1.7
0.7
0.1
2.87%
a A1E
= age-one equivalent; IM&E = impingement mortality and entrainment.
mortality and entrainment reductions increase throughout the compliance period. The values presented here reflect the peak reductions achieved in 2059, the final year of the compliance period.
IM&E Effects: Entrainment requirements for all stand-alone or units.
b Impingement
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D. National Benefits of the Final Rule
and Options Considered
1. Overview
Economic benefits of the final rule
and other options considered for
regulated facilities can be categorized
broadly into use and nonuse benefits of
goods and services. Use values include
benefits that pertain to the human use
(direct or indirect) of affected fishery
resources. Use values reflect the value of
all current direct and indirect uses of a
good or service. Direct use benefits can
be further categorized according to
whether affected goods and services are
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traded in the market (i.e. commercially
captured fish are traded, recreational
catch is not). Likewise, indirect use
benefits can be linked to direct goods
and services. For example, reductions in
impingement mortality and entrainment
of forage fish will enhance the biomass
of species targeted for commercial
(market) and recreational (nonmarket)
uses. It could also affect property
values.
Nonuse benefits are those benefits
that are independent of any current or
anticipated human use of a resource.
Nonuse benefits reflect human values
associated with existence and bequest
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motives. In other words, these values
reflect the value the public places on
something simply as a result of its
existence or natural functioning. EPA
estimated the economic benefits from
national regulatory options using a
range of valuation methods. Commercial
fishery benefits were valued using
market data. Recreational angling
benefits were valued using a benefits
transfer approach based on revealed and
stated preference data. To estimate
indirect use benefits from reduced
impingement mortality and entrainment
of forage species, EPA used a simple
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trophic transfer model. This model
translated changes in impingement
mortality and entrainment of forage fish
into changes in the harvest of
commercial and recreational species.
All benefits for fish saved under today’s
final rule are estimates on the basis of
projected numbers of age-one equivalent
fish, converted to harvestable age
equivalents on a species-by-species
basis for those commercial species
analyzed.
EPA calculated the monetary value of
use benefits of the final rule and other
options considered for existing facilities
using two discount rate values: 3 and 7
percent. All dollar values presented are
in 2011 dollars. Because avoided fish
deaths occur mainly in fish that are
younger than harvestable age (eggs,
larvae, and juveniles), the main benefits
from avoided impingement mortality
and entrainment would be realized
typically 3 to 4 years after their avoided
death. A detailed description of the
approaches used to address this is in
Appendix C of the BA.
Neither forage species nor the
unlanded portion of recreational and
commercial species were assigned direct
use values in this analysis. Their
potential value to the public is derived
from several alternative sources: Their
indirect use as both food and breeding
population for those fish that are
harvested; and nonuse value. The
nonuse value includes individuals’
WTP (willingness to pay) for the
protection of fish based on a sense of
altruism, stewardship, bequest, or
vicarious consumption; and their
support of ecosystem stability and
function. To estimate a subset of nonuse
benefits from reducing impingement
mortality and entrainment of forage
species and unlanded commercial and
recreational species, EPA conducted a
benefits transfer using a nonmarket
valuation study of aquatic ecosystem
improvements. This effort generated
partial estimates of nonuse values for
resource changes for a species that
represents less than one percent of
adverse environmental impacts.
EPA developed and fielded an
original stated preference survey to
estimate total WTP for improvements to
fishery resources affected by
impingement mortality and entrainment
from regulated 316(b) facilities (75 FR
42438, July 21, 2010). Preliminary
results of the stated preference survey
were described in a Notice of Data
Availability (77 FR 34927, June 12,
2012). EPA presents preliminary
benefits estimates based on the stated
preference survey in the BA to
demonstrate progress on this effort. In
the absence of final survey results, EPA
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estimated partial nonuse benefits for the
final rule using the benefits transfer
approach from proposal. EPA updated
the proposal results to incorporate
additional stock assessment data for
winter flounder, the species used as the
basis for the analysis. Due to the
challenges associated with estimating
nonuse benefits, some nonuse benefits
are described only qualitatively.
2. Timing of Benefits
Discounting refers to the economic
conversion of future benefits and costs
to their present values, accounting for
the fact that individuals value future
outcomes less than comparable nearterm outcomes. Discounting enables a
valid comparison of benefits and costs
that occur across different periods. EPA
used discounting to account for
differences in the timing across benefits
and costs under the final rule and
options considered. EPA estimated the
expected benefits of the final rule once
the rule takes full effect, then used
discounting to account for delays in the
realization of benefits. Two different
delays affect the timing of benefits
under the final rule and options
considered.
First, facilities will begin to incur
costs prior to technology installation.
Facilities will face regulatory
requirements once the rule is effective,
but it will take time for requirements to
be developed and for the required
technology to be installed. Analyzed
facilities are assigned a technology
installation year which considers
facility characteristics and technology
being installed. EPA assumed that
facilities installing impingement
technology tend to complete technology
installation sooner than facilities
installing closed-cycle cooling (for other
options considered). The assignment of
technology installation years is
speculative on EPA’s part, because EPA
does not have sufficient data on hand to
project the schedules that Directors will
set for facilities. See Chapter 3 of the EA
document for the final existing facilities
rule for details on EPA’s development of
technology installation years. EPA
effectively discounts benefits to a
greater extent than costs to account for
the lag between the incurrence of costs
and the realization of benefits.
Second, an additional time lag will
result between technology
implementation and use values via
increased fishery yields. This lag occurs
because several years could pass
between the time an organism is spared
from impingement mortality or
entrainment and the time of its potential
harvest. For example, a larval fish
spared from entrainment (in effect, at
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age 0) could be caught by a recreational
angler at age 3, meaning that a 3-year
time lag arises between the incurred
technology cost and the realization of
the estimated recreational benefit.
Likewise, if a 1-year-old fish is spared
from impingement and is then harvested
by a commercial waterman at age 2,
there is a 1-year lag between the
incurred cost and the subsequent
commercial fishery benefit. To account
for this growth period, EPA applied
discounting by species groups in each
regional study. Note that nonuse values
(depending on how they are measured)
do not necessarily need to be
discounted similarly.
3. Recreational Fishing Valuation
a. Recreational Fishery Methods
To estimate recreational benefits of
the final options, EPA developed a
benefits transfer approach on the basis
of a meta-analysis of recreational fishing
valuation studies designed to measure
the various factors that determine WTP
for catching an additional fish per trip.
Regional benefits are summarized as
follows (for details, see Chapter 7 of the
BA):
1. Estimate the annual forgone catch
of recreational fish (number of fish)
attributable to impingement mortality
and entrainment under current
conditions.
2. Estimate the marginal value per fish
using a benefit transfer function based
on a meta-analysis of recreational
fishing studies.
3. Multiply the forgone catch by the
marginal value per fish to estimate the
total annual value of the forgone catch.
4. Estimate the annual value of
reductions in the forgone catch
attributable to the regulatory analysis
options.
5. Discount the time path of benefits
at 3 and 7 percent to reflect the time lag
between impingement mortality and
entrainment reductions and increased
harvests.
b. Estimated Benefits to Recreational
Anglers
Decreasing impingement mortality
and entrainment increases the number
of fish available to be caught by
recreational anglers, thereby increasing
angler welfare. Exhibit X–5 shows the
estimated benefits resulting from
reduced impingement mortality and
entrainment under today’s final existing
facilities rule and other options that
EPA considered. The total annualized
recreational fishing benefits for all
regions at existing units of existing
facilities for the final rule (impingement
mortality and entrainment combined)
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are $18 million using a 3 percent
discount rate and $14 million using a 7
percent discount rate. Annual
recreational fishing benefits for other
options considered range from $17 to
$43 million using a 3 percent discount
48407
rate and $13 million to $30 million
using a 7 percent discount rate.
EXHIBIT X–5—ANNUAL RECREATIONAL FISHING BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT
EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED
Increased harvest
(million fish)
Regulatory option a
Proposal Option 4 ......................................................................................................
Final Rule—Existing Units .........................................................................................
Proposal Option 2 ......................................................................................................
Baseline .....................................................................................................................
3% discount rate
(million 2011$)
6.1
6.5
20.5
25.3
7% discount rate
(million 2011$)
17.1
18.2
43.0
78.8
12.6
13.5
29.5
72.0
a IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
4. Commercial Fishing Valuation
Reductions in impingement mortality
and entrainment at cooling water intake
structures are expected to benefit the
commercial fishing industry. By
reducing the number of fish killed, the
number of fish available for harvest is
expected to increase. The next section
summarizes the methods EPA used to
estimate benefits to the commercial
fishing sector. The section after that
presents the estimated value of
commercial fishing benefits.
a. Commercial Fishing Valuation
Methods
The total loss to the economy from
impingement mortality and entrainment
impacts on commercially harvested fish
species is determined by the sum of
changes in both producer and consumer
surplus. EPA assumed a linear
relationship between stock and harvest,
such that if 10 percent of the current
commercially targeted stock were
harvested, 10 percent of the
commercially targeted fish lost to
impingement mortality and entrainment
would have been harvested absent
impingement mortality and
entrainment. The percentage of fish
harvested is based on data of historical
fishing mortality rates.
Producer surplus provides an estimate
of the economic damages to commercial
fishers, but welfare changes can also be
expected to accrue to final consumers of
fish and to commercial consumers
(including processors, wholesalers,
retailers, and middlemen) if the
projected increase in harvest is
accompanied by a change in price. The
analysis of market impacts involves the
following steps (for details, see Chapter
6 of the BA):
1. Assessing the net welfare changes
for fish consumers due to changes in
fish harvest and the corresponding
change in fish price.
2. Assessing net welfare changes for
fish harvesters due to the change in total
revenue, which could be positive or
negative.
3. Calculating the increase in net
social benefits when the fish harvest
changes by combining the welfare
changes for consumers and harvesters.
For a more detailed description of the
methodology for commercial fishing, see
Chapter 6 of the BA.
b. Commercial Fishing Valuation
Results
Exhibit X–6 presents the estimated
annual commercial fishing benefits
attributable to the proposed options.
The results reported include the total
reduction in losses in pounds of fish,
and the value of this reduction
discounted at 3 and 7 percent. Total
estimated annualized commercial
fishing benefits for the United States for
the final rule are $0.9 million using a 3
percent discount rate and $0.7 million
using a 7 percent discount rate. Annual
commercial fishing benefits for other
options considered range from $0.9
million to $3.9 million using a 3 percent
discount rate and $0.7 million to $2.7
million using a 7 percent discount rate.
EPA estimated the expected price
changes from eliminating baseline levels
of impingement mortality and
entrainment and found them to be
small, ranging from 0.2 to 2.5 percent.
EXHIBIT X–6—ANNUAL COMMERCIAL FISHING BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT
EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED
Increased harvest
(million lbs)
Regulatory option a
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Proposal Option 4 ......................................................................................................
Final Rule—Existing Units .........................................................................................
Proposal Option 2 ......................................................................................................
Baseline .....................................................................................................................
3% discount rate
(million 2011$)
5.3
5.7
14.0
17.3
0.9
0.9
3.9
8.0
7% discount rate
(million 2011$)
0.7
0.7
2.7
7.2
a IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
5. Nonuse Benefits
Aquatic organisms with no direct use
benefits account for the majority of
cooling water intake structure losses
(Exhibit X–3). Although many
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individuals may not use a particular
waterbody for recreation or fishing,
individuals nevertheless may value
improvements in that waterbody. To
quantitatively assess the ecological
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gains from the final rule and other
options considered, EPA took both of
the only two approaches available for
quantifying nonuse benefits—a benefits
transfer approach and a stated
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assessment data, current stock size, and
the magnitude of IM&E, EPA
determined winter flounder to be the
species likely to experience the greatest
percent increase in abundance among
those species with sufficient stock
information to conduct the analysis
within the boundaries of the North
Atlantic and Mid-Atlantic benefits
regions. This species is harvested;
however, early life stages of recreational
and commercial species may be eaten by
other organisms and therefore have
nonuse values.
3. Estimate total household WTP by
applying model results for WTP per
percentage of estimated winter flounder
impingement mortality and
entrainment. Total regional WTP is the
product of household WTP and the
number of households in the affected
region (for details, see Chapter 8 of the
BA).
a. Nonuse Benefits Transfer
EPA identified a recent stated
preference survey of Rhode Island
residents that is closely related to the
316(b) policy context. The study results
have been published in multiple
scientific journals and books including
Johnston et al.148 and Zhao et al.149 Both
the Rhode Island study and the present
context address policy changes that
increase the number of forage fish in
aquatic habitat with unknown effects on
overall fish populations. The Rhode
Island study was developed originally
as a case study addressing Rhode Island
residents’ preferences for the restoration
of migratory fish passage over dams in
Rhode Island’s Pawtuxet and WoodPawcatuck watersheds. It estimates
nonuse values by asking respondents to
consider changes in ecological
indicators reflecting quantity of habitat,
abundance of wildlife, ecological
condition, and abundance of migratory
fish species. Within this study,
estimated values were based on the
relative change in abundance of fish
species most affected by restoration.
Estimating benefit functions from the
Rhode Island choice experiment
survey 150 allows one to distinguish
benefits associated with resource uses
from those associated primarily with
nonuse motives. Within the benefit
transfer application, WTP is quantified
for increases in non-harvested fish alone
on the basis of the implicit price for
migratory fish changes. This transfer
holds constant all effects related to
identifiable human uses (e.g., effects on
catchable fish, public access, and
observable wildlife). The remaining
welfare effect—derived purely from
effects on forage fish with little or no
direct human use—may therefore be
most accurately characterized as a
nonuse benefit realized by households.
The estimation of nonuse values
involved the following steps:
1. Use a model published by Zhao et
al.151 to estimate household WTP per
percent increase in the number of fish
in a given watershed. The household
WTP values reflect a survey version that
characterizes effects on the number of
migratory fish passing upstream.
2. Calculate the relative change in
abundance for the fish species most
affected by the regulation. The structure
of the transfer study dictates that WTP
should be evaluated based on the single
species that would experience the
greatest relative increase in abundance
from restoration and that WTP estimates
from multiple species impacted by
IM&E should not be treated as strictly
additive. After reviewing available stock
148 Johnston, R.J., E.T. Schultz, E.T., K. Segerson,
E.Y. Besedin, and M. Ramachandran. 2012.
Enhancing the content validity of stated preference
valuation: The structure and function of ecological
indicators. Land Economics, 1: 102–120.
149 Zhao, M., Johnson, R.J. and Schultz, E.T. 2013.
What to Value and How? Ecological Indicator
Choices in Stated Preference Valuation.
Environmental Resource Economics. Published
online, February 8, 2013.
150 Johnston, R.J., E.T. Schultz, E.T., K. Segerson,
E.Y. Besedin, and M. Ramachandran. 2012.
Enhancing the content validity of stated preference
valuation: The structure and function of ecological
indicators. Land Economics, 1: 102–120; Zhao, M.,
Johnson, R.J. and Schultz, E.T. 2013. What to Value
and How? Ecological Indicator Choices in Stated
Preference Valuation. Environmental Resource
Economics. Published online, February 8, 2013.
151 Op cit.
emcdonald on DSK67QTVN1PROD with RULES2
preference survey. It is not necessary to
use a stated preference survey approach
to calculate benefits; however,
important nonuse benefits can be
missed by not using a stated preference
survey approach. So EPA took both
approaches, but relied on only the
benefits transfer approach for the
benefits analysis supporting the final
rule. The benefits transfer approach
relies on the existence of previously
published studies with values that can
be transferred; in instances where
nonuse is potentially significant, as is
the case here, previously published
studies would only include nonuse
value if they adopted a stated preference
approach.
EPA used a benefit transfer approach
to partially monetize nonuse benefits
associated with reductions in
impingement mortality and entrainment
of fish, shellfish, and other aquatic
organisms under the regulatory options
for the North Atlantic and Mid-Atlantic
benefits regions. EPA applied estimated
values from a study conducted in Rhode
Island; these estimates are likely to be
more representative of nonuse values
held by individuals residing in the
Northeast United States and less
accurate in other regions. EPA was
unable to identify comparable studies
conducted in other regions that could be
used to estimate nonuse values. Chapter
8 of the BA provides further detail on
this analysis.
The preferred techniques used to
estimate total values (including both use
and nonuse values), in general, are
benefits transfer or to conduct a stated
preference survey. There are many
studies in the environmental economics
literature that quantify benefits or WTP
associated with various types of water
quality and aquatic habitat changes.
However, none of these studies allows
the isolation of non-market WTP
associated with quantified reductions in
impingement mortality and entrainment
for forage fish or unlanded portion of
commercial and recreational species.
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b. Estimated Nonuse Benefits for the
North Atlantic and Mid-Atlantic
Regions
EPA expects that a decrease in
impingement mortality and entrainment
will lead to increased fish abundance in
affected water bodies, thus increasing
nonuse benefits. Exhibit X–7 shows the
benefits that would result from reducing
impingement mortality and entrainment
through today’s final rule and other
options considered. Application of the
transfer study requires that the increases
be expressed as a percent improvement
relative to a maximum number of fish
that could be supported. EPA calculated
estimates of WTP on the basis of the
increase in age-1 equivalent winter
flounder relative to the estimated
number of age-1 fish when the stock is
at maximum sustainable yield, thus
assuming that the population structure
of the current stock is similar to the
larger stock. The total annualized
nonuse benefits for the North Atlantic
and Mid-Atlantic regions for the
existing unit provision of the final rule
are $1 million using a 3 percent
discount rate and $0.8 million using a
7 percent discount rate. For other
options considered, annualized nonuse
benefits range from $0.3 to $51 million
using a 3 percent discount rate and $0.3
to $37 million using a 7 percent
discount rate.
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48409
EXHIBIT X–7—ANNUAL NONUSE BENEFITS FROM ELIMINATING OR REDUCING IM&E AT EXISTING UNITS AT EXISTING
FACILITIES IN THE NORTH ATLANTIC AND MID-ATLANTIC REGIONS FOR THE FINAL RULE AND OPTIONS CONSIDERED a
Winter flounder
IM&E
(million A1E)
Regulatory option b
Proposal Option 4 ....................................................................
Final Rule—Existing Units .......................................................
Proposal Option 2 ....................................................................
Baseline ...................................................................................
Increased winter
flounder A1E
abundance (%)
0.03
0.08
4.78
6.23
3% discount rate
(millions 2011$)
0.02
0.07
4.18
5.44
7% discount rate
(millions 2011$)
0.3
1.0
51.1
99.1
0.3
0.8
37.3
96.9
a IM&E
= impingement and entrainment; A1E = age-one equivalent.
Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
b IM&E
c. Stated Preference Survey
EPA conducted a stated preference
survey to calculate benefits associated
with minimizing adverse impacts to
aquatic ecosystems from cooling water
intakes. Refer to Sections VI.F.1 and
X.D.1 for additional discussion of the
stated preference survey. EPA did not
rely on the results of its stated
preference survey in estimating the
benefits of today’s rule.
6. Threatened and Endangered Species
This section summarizes methods and
results of EPA’s analysis of benefits
from improved protection of T&E
species from today’s final rule and
options considered. Chapter 5 of the BA
provides further detail on this analysis.
Even if levels of mortality due to
impingement and entrainment from
cooling water intake structures of T&E
species are low in absolute numbers,
they may represent a substantial portion
of annual reproduction because of the
reduced population levels that cause a
species to be protected. Consequently,
impingement mortality and entrainment
may either lengthen recovery time, or
hasten the demise of these species.
Adverse effects of cooling water intake
structures on T&E species can occur in
several ways:
• Populations of T&E species may
suffer direct harm as a consequence of
impingement mortality and
entrainment.
• T&E species may suffer indirect
harm if a cooling water intake structure
alters food webs.
• Cooling water intake structures can
alter habitat designated as critical to the
long-term survival of T&E species.
Consequently, the 316(b) regulation
will help preserve threatened and
endangered species.
a. Qualitative Assessment of
Impingement Mortality and Entrainment
Impacts on T&E Species
By definition, T&E species are
characterized by low population levels.
As such, it is unlikely that these species
are recorded in significant number, if
recorded at all, in impingement
mortality and entrainment monitoring
studies. Thus, losses are difficult to
identify and quantify in a framework
developed for non-listed species.
Consequently, EPA developed a
qualitative methodology to estimate the
number of T&E species affected by
impingement mortality and
entrainment.
To qualitatively assess the potential
for cooling water intake structure
impacts on aquatic T&E species, EPA
constructed a database that assessed the
geographical overlap of cooling water
intake structure and habitat used by
aquatic T&E species. This database
identified the number of T&E species
potentially affected by each regulated
316(b) facility, and the number of
facilities potentially affecting each T&E
species. Additional details are in
Chapter 5 of the BA.
Using this database, EPA found 99
Federally-listed aquatic T&E species
that overlap with at least one covered
cooling water intake structure (an
interaction in Exhibit X–8). T&E species
included freshwater, marine, and
anadromous fish, freshwater mussels,
and sea turtles. On average, the habitat
of each T&E species overlapped with 22
covered facilities (Exhibit X–8),
suggesting that the 316(b) rule may have
substantial positive benefits of ensuring
the long-term sustainability and
recovery of T&E species.
EXHIBIT X–8—NUMBER OF REGULATED 316(B) COOLING WATER INTAKE STRUCTURES IN AQUATIC T&E SPECIES HABITAT
ON A PER-SPECIES BASIS
Facilities per T&E species c
Subset of affected species a b
Interactions b
Species
Avg
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All T&E Species .......................................................................
T&E Freshwater Mussels ........................................................
T&E Anadromous Fish ............................................................
T&E Freshwater Fish ...............................................................
T&E Snails ...............................................................................
Sea Turtles ..............................................................................
99
53
12
21
7
6
2,158
1,176
235
65
199
483
Max
21.8
21.8
19.6
3.1
28.4
80.5
103
103
101
7
49
102
a Aquatic T&E species includes species listed as threatened or endangered by the U.S. Fish and Wildlife Service (freshwater) or National Oceanic and Atmospheric Administration National Marine Fisheries Service (marine). Only aquatic species overlapping with a minimum of one cooling water intake structure are included.
b Each interaction represents an overlap between the range of a T&E species and cooling water intake structure.
c Avg = average, Max = maximum.
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
b. Quantitative Assessment of
Impingement Mortality and Entrainment
Impacts on T&E Species
Although difficult to observe and
quantify, EPA identified 14 T&E species
with confirmed impingement mortality
and entrainment based on facility
impingement mortality and entrainment
studies. EPA notes that some
impingement mortality and entrainment
studies identifying T&E losses were
conducted prior to the listing of the
species under the ESA. In addition to
documented species-level instances of
T&E mortality, EPA identified
impingement mortality and entrainment
at the level of genera 152 when these
genera contain a T&E species whose
habitat range overlapped the reporting
facility’s cooling water intake structure.
Although these are not confirmed
impingement mortality and entrainment
of T&E species, they provide evidence
that additional T&E species are likely to
be directly affected by impingement
mortality and entrainment. EPA found
seven genus-level matches, suggesting
that the 14 T&E species suffering
impingement mortality and entrainment
may be inaccurate.
Of the 14 Federally-listed T&E species
for which EPA was able to document
losses in impingement mortality and
entrainment studies, EPA was able to
quantify impingement mortality and
entrainment for two species (pallid
sturgeon and Topeka shiner). The
documented impingement mortality and
entrainment occurred before these
species were Federally-listed. Data were
either qualitative or of insufficient
quality to quantify local or regional
impingement mortality and entrainment
for the remaining 12 Federally-listed
T&E species. EPA also quantified
impingement mortality and entrainment
for the American paddlefish (Polyodon
spathula), listed by several states as
threatened or endangered under State
law, using facility impingement
mortality and entrainment studies.
Exhibit X–9 presents EPA’s estimates of
baseline annual impingement mortality
and entrainment, and reductions in
impingement mortality and entrainment
which EPA estimates will occur under
the final rule and other options
considered.
EXHIBIT X–9—BASELINE ANNUAL IM&E FOR T&E SPECIES AND REDUCTIONS FOR EXISTING UNITS AT EXISTING
FACILITIES (A1ES) a b
Proposal
option 4
Species
Final rule—
existing units
Proposal
option 2
Baseline
Paddlefish c ..............................................................................
Pallid Sturgeon ........................................................................
Topeka Shiner .........................................................................
7,930.1
65.4
2,910.9
8,245.4
67.6
3,009.8
15,659.7
78.0
3,471.9
18,841.4
89.5
3,984.9
Total ..................................................................................
10,906.4
11,322.8
19,209.5
22,915.7
a IM&E
= impingement and entrainment; A1E = age-one equivalent.
Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
c The American paddlefish is not a Federally-listed T&E species but is listed as threatened or endangered on several state lists.
d This analysis is based solely on IM controls.
b IM&E
EPA had sufficient data from
impingement mortality and entrainment
studies to quantify impingement
mortality and entrainment estimates for
three T&E species, Topeka shiner, pallid
sturgeon, and paddlefish (Exhibit X–9).
Two of these species (pallid sturgeon
and paddlefish) have potential use
values. A limited recreational fishery
(mostly catch and release) exists for
paddlefish in several states; although
harvesting pallid sturgeon is illegal, the
species is sometimes caught by
recreational anglers. EPA estimated
recreational use values for pallid
sturgeon and paddlefish by applying
transfer values from a Random Utility
Model analysis it conducted to evaluate
recreational fishing benefits of the
316(b) Phase II regulation to quantified
impingement mortality and entrainment
(for details, see Chapter 5 of the BA).
EPA was unable to generate estimates
of nonuse values for T&E fish species
because reliable population estimates
needed to transfer the values were
unavailable. However, EPA emphasizes
that nonuse values for T&E fish species
152 Genera is the plural of genus. Genus is the
rank superior to species in taxonomic biological
c. Valuation Methods of T&E Fish
Species
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are likely to be significantly greater than
any use values. Harvest of these species
is prohibited, reflecting a societal
judgment that protection and
preservation of these species is of
greater value than harvest.
classification. For example, the genus of Atlantic
salmon (Salmo falar) is Salmo.
Impingement mortality and
entrainment is only one of many factors
that adversely affect T&E species.
Estimating total population impacts
from changes in impingement mortality
and entrainment requires estimates of
current populations of these fish and
estimates of other anthropogenic effects
which were not readily available for all
T&E species with quantified
impingement mortality and entrainment
at the time of this analysis. Therefore,
EPA was unable to quantify effects on
T&E populations from the 316(b)
regulation.
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d. Estimated Monetary Benefits From
Reduced Mortality of T&E Fish Species
Exhibit X–10 presents the estimated
annualized benefits for a subset of T&E
species. For existing units under the
final rule, EPA estimates total
annualized use benefits for T&E species
with quantified impingement mortality
and entrainment of $0.4 million using a
3 percent discount rate and $0.3 million
using a 7 percent discount rate. For
other options considered, annualized
benefits range from $0.4 to $0.7 million
using a 3 percent discount rate and $0.3
to $0.5 million using a 7 percent
discount rate.
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48411
EXHIBIT X–10—ANNUAL USE BENEFITS FROM ELIMINATING OR REDUCING IM&E OF T&E SPECIES AT EXISTING UNITS OF
EXISTING FACILITIES FOR THE FINAL RULE AND OTHER OPTIONS CONSIDERED a b c
Increased harvest
(number of fish)
Regulatory option
Proposal Option 4 ......................................................................................................
Final Rule—Existing Units .........................................................................................
Proposal Option 2 ......................................................................................................
Baseline .....................................................................................................................
3% discount rate
(million 2011$)
7,995.5
8,313.0
15,737.7
18,930.9
7% discount rate
(million 2011$)
0.4
0.4
0.7
1.2
0.3
0.3
0.5
1.3
a IM&E = impingement and entrainment; T&E = threatened and endangered. Values are included for pallid sturgeon and paddlefish in the Inland region.
b IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow
greater than 50 mgd; Final Rule = impingement mortality standards based on modified traveling screens for all facilities with flow greater than 2
mgd; Proposal Option 2 = intake flow commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
c This analysis is based solely on impingement mortality controls.
can have a substantial positive effect on
population growth.158 The marginal
change in extinction probability of sea
turtles due to 316(b) regulatory options
is likely to be at least 0.01, or a 1 percent
decrease in the probability of extinction
over 25 years. This assessment is based
on reports that impingement mortality
and entrainment may result in the loss
of more than 100 turtles per year and
because turtle population growth rates
are known to be sensitive to changes in
juvenile and subadult life stages.159
e. Valuation Methods for T&E Sea
Turtles
In addition to estimating values of
T&E fish with quantitative estimates of
impingement mortality and
entrainment, EPA estimated the WTP
for sea turtle conservation. In this
analysis, EPA applied estimates from a
study using a stated preference
valuation approach to estimate total
economic value of a management
program that reduces the risk of
extinction of loggerhead sea turtles.156
Although impingement mortality and
entrainment of turtles is relatively low
compared to mortality from shrimp
trawling and other fisheries,157 it is
known that reducing turtle mortality
during juvenile and subadult life stages
emcdonald on DSK67QTVN1PROD with RULES2
EPA notes that the benefit values
presented in Exhibit X–10 represent
only a fraction of values for T&E species
potentially affected by the final existing
facilities rule. The Agency was able to
obtain only use values and for only a
small subset of all affected T&E species.
Moreover, because of the nature of T&E
species, even a small increase in
population could yield economic and
ecological benefits (e.g., Richardson and
Loomis; 153 Bell et al.; 154 Berrens et
al.155)
f. Benefits From Reduced Mortality of
T&E Sea Turtles
The U.S. range of loggerhead sea
turtles includes the Gulf of Mexico,
South Atlantic, Mid-Atlantic, and North
Atlantic 316(b) regions.160 To calculate
national WTP for an increased 25-year
survival probability of loggerhead sea
turtles, EPA assumed the affected
population to include households in
States with 316(b) facilities that are in
loggerhead sea turtle habitat. EPA
determined that 54.8 million
households would be willing to pay for
improved protection of loggerhead sea
turtles. Although incidences of
mortality have been reported at facilities
in California, Texas, Florida, South
Carolina, North Carolina, and New
Jersey, EPA does not have sufficient
information to quantify total sea turtle
losses due to intakes or the reductions
in such losses that might occur from the
final rule or options considered. But as
an illustrative example, assuming that
the survival probability of loggerhead
sea turtles over 25 years were increased
by 1 percent, and applying a mean
153 Richardson, L., and J. Loomis. 2009. The total
economic value of threatened, endangered and rare
species: An updated meta-analysis. Ecological
Economics, 68(5): 1535–1548.
154 Bell, K.P., D. Huppert, and R.L. Johnson. 2003.
Willingness to pay for local coho salmon
enhancement in coastal communities. Marine
Resource Economics, 18: 15–31.
155 Berrens, R.P., P. Ganderton, and C.L. Silva.
1996. Valuing the protection of minimum instream
flow in New Mexico. Journal of Agricultural and
Resource Economics 21(2): 294–309.
156 Whitehead, J.C. 1993. Total economic values
for coastal and marine wildlife: specification,
validity, and valuation issues. Marine Resource
Economics, 8(2): 119–132.
157 Plotkin, P.T., (Ed). 1995. National Marine
Fisheries Service and U. S. Fish and Wildlife
Service Status Reviews for Sea Turtles Listed under
the Endangered Species Act of 1973. National
Marine Fisheries Service. Silver Spring, MD.
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158 Crouse, D.T., L.B. Crowder, and H. Caswell.
1987. A stated-based population model for
loggerhead sea turtles and implications for
conservation. Ecology, 68(5): 1412–1423.
159 Ibid.
160 U.S. Fish and Wildlife Service (USFWS)
(2010c). ‘‘North Florida Ecological Services Office:
Loggerhead Sea Turtle (Caretta).’’ Available at
https://www.fws.gov/northflorida/seaturtles/
turtle%20factsheets/loggerhead-sea-turtle.htm.
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household value of $0.37 (2011 dollars),
the monetized value would be $19.3
million and $18.8 million using
discount rates of 3 percent and 7
percent, respectively. EPA is presenting
these estimates only to demonstrate the
potential range of benefits, and is not
including them in national benefits
totals for the final rule and options
considered. Actual household values
and total benefits may be higher or
lower than these estimates, with
Proposal Option 2 likely to provide
substantially greater benefits than the
final rule and Proposal Option 4.
Because EPA does not currently have
accurate national estimates of
impingement mortality and entrainment
for turtle species, nor are population
models available that estimate the effect
of 316(b) regulation on population size
and extinction risk, these estimates are
presented only as an illustrative
example and are not included in
national totals.
g. Other Indications of Society’s WTP
for Protection of T&E Species
Many sources provide information
that indicates that society places
significant value on protecting T&E
species. These include, but are not
limited to:
• The Endangered Species Act of
1973, which provides for the
conservation of T&E species of fish and
wildlife. Federal and State expenditures
on T&E species were $593 million
during fiscal year 2011 just on
protection of those Federally-listed T&E
species that have habitat overlapping
cooling water intake structures. This
accounted for 68 percent of the $869
million spent on fish, marine reptiles,
crustaceans, corals, clams, aquatic snails
and marine mammals listed under the
Endangered Species Act.161
161 U.S. Fish and Wildlife Service. 2012. Federal
and State Endangered and Threatened Species
Expenditures. Fiscal Year 2011.
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emcdonald on DSK67QTVN1PROD with RULES2
• Restrictions on activities in the
habitat occupied by T&E species. For
example, water diversions on the San
Joaquin-Sacramento River delta, in
place to protect the Delta Smelt
(Hypomesus transpacificus), limit the
extraction of water for drinking and
agriculture.
• The willingness of individuals to
volunteer their time to conserve T&E
species. For example, dozens of
organizations recruit thousands of
volunteers every year to participate in
sea turtle conservation and research
projects. Volunteers are often required
to undergo substantial training and
commit to long hours.
While costs to replace, protect, or
enhance stocks, and costs to users
affected by efforts to conserve stocks are
not direct measures of economic
benefits, they indicate that society is
willing to pay significant sums to
protect and restore populations of T&E
species. Although impingement
mortality and entrainment is only one of
many stressors on these species,
reducing the amount of impingement
mortality and entrainment could
contribute to the recovery of
populations over time, thereby
eliminating some costs associated with
conserving T&E species.
7. Assessment of Thermal Discharge
Impacts
In addition to reducing total
impingement mortality and
entrainment, closed-cycle cooling
reduces thermal pollution. Most retrofit
installations of cooling towers at electric
generating facilities have been required
by NPDES permits to reduce thermal
discharges. Since thermal discharges are
a product of cooling water intake
structures, the impacts of thermal
discharges are a relevant benefit to
consider when assessing appropriate
technologies to reduce the effects of
cooling water intakes. The installation
of technologies, such as closed-cycle
cooling systems, can reduce thermal
pollution significantly. Thermal
pollution has long been recognized to
cause harm to the structure and function
of aquatic ecosystems. Concerns about
the impacts of thermal discharges are
addressed by State water quality
standards that, when implemented
through NPDES permits, limit the
amount of heat that can be discharged
to a receiving water and result, in some
cases, in technology-based permit
conditions. Section 316(a) of the CWA
applies to point sources with thermal
discharges. It authorizes the NPDES
permitting authority to impose
alternative effluent limitations for the
control of the thermal component of a
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discharge in lieu of the effluent
limitations that would otherwise be
required under sections 301 or 306 of
the CWA. Before such a ‘‘thermal
variance’’ can be granted, the permittee
must demonstrate that the alternative
limit will assure the protection and
propagation of a balanced, indigenous
population of shellfish, fish and wildlife
in and on the body of water into which
the discharge is to be made. 40 CFR
125.73(a).
EPA did not quantify nationally the
impacts of thermal discharges. However,
numerous studies have shown that
thermal discharges may substantially
alter the structure of aquatic
communities by modifying
photosynthetic, metabolic, and growth
rates. Thermal discharges also harm
aquatic life by reducing levels of
dissolved oxygen, altering the location
and timing of fish behavior such as
spawning, aggregation, and migration,
and may cause thermal shock-induced
mortality for some species. Adverse
temperature effects may also be more
pronounced in aquatic ecosystems that
are already subject to other
environmental stressors such as high
levels of biochemical oxygen demand,
nutrient and sediment contamination, or
pathogens. Within mixing zones, which
often extend several miles downstream
from outfalls, thermal discharges may
impair efforts to restore and protect the
waterbody. For example, permit
requirements to limit nitrogen
discharges in a watershed, and thereby
reduce harmful algal blooms, may be
counteracted by thermal discharges
which promote growth of harmful algae.
Thermal discharges may have indirect
effects on fish and other vertebrate
populations through increasing
pathogen growth and infection rates.
Thermal discharges may thus alter the
ecological services, and reduce the
benefits, of aquatic ecosystems that
receive heated effluent. The magnitude
of thermal effects on ecosystem services
is related to facility-specific factors,
including the volume of the waterbody
from which cooling water is withdrawn
and returned, other heat loads, the rate
of water exchange, the presence of
nearby refugia, and the assemblage of
nearby fish species.
8. Assessment of Social Cost of Carbon
The social cost of carbon reflects the
estimated increase in the burden of
global warming to society in future
years due to higher greenhouse gas
(GHG) emissions, measured as CO2
equivalents, associated with additional
energy requirements—energy penalty,
auxiliary energy requirements, and
compliance technology installation—of
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regulatory options. EPA estimated
positive or negative benefits associated
with the social cost of carbon for
decreases or increases, respectively for
Proposal Option 4 and Final Rule or
Proposal Option 2, in energy
requirements at regulated facilities
under the final rule and other options
considered.
EPA’s estimates of changes in CO2
emissions were based on results from
the electricity market analysis using
IPM.162 For electric generators, EPA
estimated the change in CO2 resulting
from the energy penalty associated with
close-cycle recirculating technology,
auxiliary energy requirement for
operating compliance technology, and
technology installation downtime. For
manufacturers, EPA estimated the
change in carbon emissions resulting
from the energy penalty and auxiliary
energy requirement. For compliance
technology installation downtime at
manufacturers, EPA assumed no change
in carbon emissions as the short-term
replacement of energy by electric power
generating facilities that would
otherwise be produced at manufacturers
could either increase or decrease
emissions.
To estimate benefits associated with
the reductions in carbon emissions, EPA
used social cost of carbon values
calculated from the 2013 document
titled, Technical Support Document:
Technical Update of the Social Cost of
Carbon for Regulatory Impact Analysis
Under Executive Order 12866,
developed by the U.S. Government
Interagency Working Group on Social
Cost of Carbon. The Agency used the
Working+ Group’s annual social cost of
carbon values for 2010 through 2050
based on the 3 percent average discount
rate, which EPA has concluded is the
most appropriate discount rate for
intergenerational benefits such as the
social cost of carbon. See Chapter 9 of
the BA for annual social cost of carbon
values based on discount rates of 2.5, 3
(high) and 5 percent. Benefits for each
year of the analysis period were
calculated by multiplying the change
CO2 emissions by the SCC value for that
year. Similar to the treatment of other
benefits, EPA discounted all yearspecific social cost of carbon values to
the beginning of 2013 and calculated an
annualized value over 51 years using a
3-percent discount rate. EPA
acknowledges that it is mixing estimates
of benefits categories analyzed at
different discount rates, but finds in this
162 For this analysis, EPA used the Integrated
Planning Model (IPM®), a comprehensive electricity
market optimization model that assesses such
impacts within the context of regional and national
electricity markets.
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case that using different discount rates
is justified by the intergenerational
nature of the social cost of carbon, for
purposes of the sensitivity analysis
based on a 7 percent discount rate to
discount other benefit categories.
Exhibit X–11 presents annualized
benefits for existing units for the final
rule and options considered. Included
in the monetized benefits is EPA’s
estimate that the final rule will reduce
greenhouse gas emissions by 9.3 million
tons of CO2-equivalent emissions over
the 40-year compliance period for this
analysis. Both the final rule and
Proposal Option 4 result in a net
reduction in CO2 emissions for existing
units during the analysis period.
Proposal Option 2 would result in a net
increase in emissions and negative
benefits for existing units. Using a 3
percent discount rate, annualized
benefits under the final rule for existing
units are $12 million. Using a 7 percent
discount rate, annualized benefits under
48413
final rule for existing units are $13
million.
EPA analyzed the benefits of the
requirements for new units at existing
facilities. EPA could not directly apply
EXHIBIT X–11—BENEFITS ASSOCIATED the benefits methodology used for IM&E
WITH SOCIAL COST OF CARBON FOR (impingement mortality and
EXISTING UNITS FOR THE FINAL entrainment) reductions at existing
RULE AND OTHER OPTIONS CONSID- units to new units because it lacks
facility-specific information to estimate
ERED
regional impingement mortality and
a
[In millions of 2011 dollars]
entrainment reductions for new units.
Instead, EPA estimated benefits
3%
7%
Regulatory
associated with IM&E reductions for the
Discount
Discount
option b
rate
rate
new unit requirements on the basis of
the monetary benefits per million
Proposal Option
gallons per day from the analysis of
4 ....................
12.4
13.4
existing units. EPA also estimated
Final Rule—Existing Units ....
12.4
13.4 benefits associated with changes in GHG
emissions as the result of the energy
Proposal Option
2 ....................
¥1,643.1
¥1,218.2 penalty associated with operating
cooling towers using the social cost of
a Benefits are based on the workgroup’s average social cost of carbon values using 3 carbon. Exhibit X–12 below presents the
estimates of monetized benefits for the
percent rate.
new unit requirements. Monetized
9. Benefits for New Units
benefits are ¥$0.2 million discounted at
In addition to the final rule and other
3 percent and ¥$0.1 million discounted
options considered for existing units,
at 7 percent.
EXHIBIT X–12—NATIONAL BENEFITS UNDER THE FINAL RULE FOR NEW UNITS AT EXISTING FACILITIES
[In 2011 dollars]
Monetized benefit categories
Regulatory option a
Recreational
fishing
Commercial
fishing
T&E species b
Nonuse
Social cost of
carbon c
0.0
¥0.3
¥0.2
0.0
¥0.2
¥0.1
Total
3% discount rate (millions 2011$)
Final Rule—New Units .............................
0.0
0.0
0.1
7% discount rate (millions 2011$)
Final Rule—New Units .............................
0.0
0.0
0.0
a IM&E
emcdonald on DSK67QTVN1PROD with RULES2
Effects: Final Rule—New Units—entrainment requirements for all stand-alone facilities.
b Benefits estimates for T&E species are restricted to recreational fishing benefits from increased catch of T&E species. They do not include
benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species.
c Benefits are based on the Work Group’s average social cost of carbon values using the 3 percent rate.
10. National Monetized Benefits
Quantifying and monetizing
reductions in impingement mortality
and entrainment attributable to the final
rule and other options considered is
challenging. National benefit estimates
are subject to uncertainties inherent in
valuation approaches used to assess the
benefits categories (see Chapters 5, 6, 7,
8, 9, and 12 of the BA). While EPA has
no data to indicate that the results for
each benefit category are atypical or
unreasonable, some potentially
significant benefit categories have not
been fully monetized, and thus the
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national monetized benefits presented
below likely underestimate total
benefits.
Exhibit X–13 presents EPA’s estimates
of the partial monetized benefits from
impingement mortality and entrainment
reduction and the social cost of carbon
for the final rule and other options
considered. These monetized values
represent use values from increased
commercial and recreational catch,
benefits transfer of recreational fishing
benefits of threatened and endangered
species, nonuse values associated with
an increase in fish abundance (those
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fish that are not caught) in the Northeast
and Mid-Atlantic benefit regions, and
national benefits estimates associated
with the social cost of carbon. For the
final rule for existing and new units,
partial estimated benefits from reducing
impingement mortality and entrainment
at existing units are $33 million using
a 3 percent discount rate and $29
million using a 7 percent discount rate.
EPA was not able to fully monetize the
benefits for the final rule. Thus, the
estimates represent a conservative (i.e.,
low) estimate of total regulatory benefits
of the final rule.
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
EXHIBIT X–13—SUMMARY OF NATIONAL BENEFITS FOR ALL REGULATED FACILITIES FOR THE FINAL RULE
Monetized benefit categories
Regulatory option a
Recreational
fishing
Commercial
fishing
T&E species b
Nonuse
Social cost of
carbon c
0.4
0.0
0.4
12.4
¥0.3
12.1
33.0
¥0.2
32.8
0.3
0.0
0.3
13.4
¥0.2
13.2
28.7
¥0.1
28.6
Total
3% discount rate (millions 2011$)
Final Rule—Existing Units .......................
Final Rule—New Units .............................
Final Rule (Existing Units + New Units) ..
18.2
0.0
18.3
0.9
0.0
0.9
1.0
0.1
1.1
7% discount rate (millions 2011$)
Final Rule—Existing Units .......................
Final Rule—New Units .............................
Final Rule (Existing Units + New Units) ..
13.5
0.0
13.5
0.7
0.0
0.7
0.8
0.1
0.9
a IM&E Effects: Final Rule–Existing Units = impingement mortality standards based on modified traveling screens for all facilities with flow
greater than 2 mgd; Final Rule–New Units: Entrainment requirements for all stand-alone facilities where the turbine and condenser are newly
built or replaced.
b Benefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from T&E species. They do not include
benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species.
c Baseline does not include potential benefits associated with the social cost of carbon.
Exhibit X–14 presents total monetized
benefits for the final rule and other
options EPA considered for existing
units by benefit category using a 3
percent discount rate. Annual
monetized benefits are slightly higher
for the final rule than Proposal Option
4, and are negative for Proposal Option
2. Including both existing and new
units, annual monetized benefits are
$32.8 million for the final rule, $30.8
million for Proposal Option 4 and
¥$1,542.8 million for Proposal Option
2.
EXHIBIT X–14—SUMMARY OF NATIONAL BENEFITS FOR ALL REGULATED FACILITIES FOR THE FINAL RULE AND OTHER
OPTIONS EPA CONSIDERED
[3% Discount rate]
Annual benefits by regulatory option a
(millions 2011$)
Monetized benefit categories
Proposal
option 4
Final rule—
existing units
Proposal
option 2
Existing Units
Recreational Fishing ........................................................................................................
Commercial Fishing .........................................................................................................
Nonuse .............................................................................................................................
T&E Species b ..................................................................................................................
Social Cost of Carbon .....................................................................................................
17.1
0.9
0.3
0.4
12.4
18.2
0.9
1.0
0.4
12.4
43.0
3.9
51.1
0.7
¥1,641.3
Total ..........................................................................................................................
31.0
33.0
¥1,542.6
¥0.2
¥0.2
¥0.2
30.8
32.8
¥1,542.8
Final Rule—New Units
Total ..........................................................................................................................
Existing and New Units
Total ..........................................................................................................................
a IM&E
emcdonald on DSK67QTVN1PROD with RULES2
Effects: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for all facilities with flow greater
than 50 mgd; Final Rule—Existing Units = impingement mortality limitations based on modified traveling screens for all facilities with flow greater
than 2 mgd; Proposal Option 2 = impingement mortality limitations based on modified traveling screens for all facilities with flow greater than 2
mgd and entrainment mortality limitations commensurate with closed-cycle recirculating systems for all facilities with flow greater than 125 DIF;
Final Rule—New Units: entrainment requirements for all stand-alone facilities.
b Benefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from T&E species. They do not include
benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species.
EPA recognizes that its estimates of
ecological and economic benefits
projected to occur under regulation are
affected by uncertainty at many levels.
• Not all ecological goods and
services affected by cooling water intake
structures at regulated 316(b) facilities
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are modeled or monetized, suggesting
that the total benefits of regulation may
be underestimated. For example,
potential increases in ecosystem
stability that might occur as a result of
regulation is not explicitly estimated
nor monetized.
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• When particular ecological goods
and services are monetized, data is not
always available at the national level.
For example, EPA was only able to
estimate the nonuse benefits transfer for
a species that represents less than one
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percent of adverse environmental
impacts.
• For the proposed rule, EPA used a
habitat-based method to assess potential
WTP for reducing fish mortality at CWIS
based on the approximate area of habitat
required to produce and support the
number of organisms lost to
impingement mortality and
entrainment.163 EPA did not consider
the habitat-based approach appropriate
for primary analysis of benefits for the
proposed rule, and did not include it in
its analysis for the final rule. However,
the results for the proposed rule
illustrate that total benefits may be
substantially greater than benefits
estimated using the methodologies
described in Section D.
Because EPA was able to only
partially monetize nonuse benefits using
the benefits transfer approach, EPA
expects that the actual benefits will be
greater than those presented here.
XI. Related Acts of Congress, Executive
Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
Under section 3(f)(1) of E.O. 12866 (58
FR 51735, October 4, 1993), this action
is an economically significant regulatory
action because it is likely to have an
annual effect of $100 million or more on
the economy. Accordingly, EPA
submitted this action to the Office of
Management and Budget for review
under E.O. 12866 and 13563 (76 FR
3821, January 21, 2011), and any
changes made in response to Office of
Management and Budget
recommendations have been
documented in the docket for this
action.
In addition, EPA prepared an analysis
of the costs and benefits associated with
this action; this analysis is discussed in
detail in the Chapter 8 of the EA. A copy
of the EA is available in the docket for
this action, and the analysis is briefly
summarized here.
48415
Exhibit XI–1 (drawn from Chapter 8 of
the EA) provides the results of the
benefit-cost analysis.164 Placeholders for
option-specific non-monetized benefits
are represented by BP4 for Proposal
Option 4, BFR for the final rule and BP2
for Proposal Option 2. While
preliminary, and not yet reviewed by
EPA’s Science Advisory Board, the
preliminary results of EPA’s stated
preference survey (see BA, Chapter 11)
suggest that BP4, BFR, and BP2 have the
potential to be significantly different
from zero. EPA is therefore using
placeholders for additional benefits that
are not captured by its analysis of use
benefits and the benefits transfer for
nonuse benefits. However, EPA did not
rely on the results of its stated
preference survey in estimating the
benefits of today’s rule. EPA has
concluded that the benefits of the rule
justify the costs.
EPA also analyzed the employment
effects of the final rule and other
options considered in development of
this rule. The results of that analysis are
summarized in Section IX.E of this
preamble and Chapter 9 of the EA.
EXHIBIT XI–1—ANNUALIZED BENEFITS AND COSTS OF THE REGULATORY OPTIONS
[In millions, 2011 dollars] a
Total social
costs b
Option
Proposal Option 4 ............................................................................................................................................
Final Rule .........................................................................................................................................................
Proposal Option 2 ............................................................................................................................................
$251.8
274.9
3,643.2
Benefits c
$31.0 + BP4
32.8 + BFR
¥1,542.6 + BP2
a Social
b Total
costs and benefits were annualized over 51 years and discounted using 3 percent rate.
social costs include compliance costs to facilities and government administrative costs. See EA Chapter 7.
include social cost of carbon from changes in greenhouse gas emissions due to the final rule.
emcdonald on DSK67QTVN1PROD with RULES2
c Benefits
B. Paperwork Reduction Act
The information collection
requirements in this rule will be
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The supporting statement in
EPA’s information collection request
estimates the burden to permitted
facilities; burden is defined at 5 CFR
1320.3(b). The 60-day comment period
will commence after publication of the
draft ICR. The information collection
requirements are not enforceable until
they are approved by OMB.
Today’s rule requires several distinct
types of information collection as part of
the NPDES permit application. In
general, the information will be used to
assist EPA in regulating environmental
impacts, namely impingement mortality
and entrainment, at cooling water intake
structures and to identify how a cooling
water intake structure at an existing
facility or a new unit at an existing
facility will meet the impingement
mortality and entrainment
requirements. Today’s rule also requires
other reporting and recordkeeping
requirements to demonstrate and
document compliance with the
requirements. Compliance with the
applicable information collection
requirements established under this
final rule is mandatory (see §§ 122.21(r),
125.136, 125.137, 125, and 138).
EPA does not consider the specific
data that will be collected under this
final rule to be confidential business
information. However, if a respondent
does consider this information to be
confidential, the respondent may
request that such information be treated
as confidential. All confidential data
submitted to EPA will be handled in
accordance with 40 CFR 122.7, 40 CFR
part 2, and EPA’s Security Manual Part
III, Chapter 9, dated August 9, 1976.
This final rule modifies regulations at
§ 122.21 to require each existing facility
and new unit at an existing facility to
prepare and submit information as part
of the facility’s NPDES permit
application. A detailed list of required
data items is provided below.
EPA estimates an average annual
burden of 634,596 hours for the final
rule’s information collection
requirements. Of this total, EPA
estimates that 1,068 regulated facilities
163 U.S. EPA. 2011. Environmental and Economic
Benefits Analysis for the Proposed Section 316(b)
Existing Facilities Rule.
164 The costs and benefits presented in this
section assume that facilities with impoundments
will qualify as having closed-cycle recirculating
systems in the baseline EPA also conducted the
costs and impacts analysis where impoundments
were not assumed to meet the definition of closedcycle recirculating. EPA did not find that this
assumption would change EPA’s final rule decision;
see DCN 12–2501.
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Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
will incur an annual average burden of
588 hours per respondent (for a total of
627,666 burden hours). EPA estimates
that Directors in 46 States and one
territory with NPDES permitting
authority, will incur an annual average
burden for the review, oversight, and
administration of the rule, of 6,930
hours, or an annual average of 147 hours
per permitting authority. Slight
differences in calculations are due to
rounding.
The corresponding estimate of costs
other than labor (labor and non-labor
costs are included in the total cost of the
final rule discussed in Section IX of this
preamble) during the first three years
after promulgation of the rule is an
annual average of $8.5 million. Nonlabor costs include activities such as
capital costs for sampling equipment,
remote monitoring devices, laboratory
services, photocopying, and the
purchase of supplies. The burden and
costs are for the information collection,
reporting, and recordkeeping
requirements for the three-year period
beginning with the assumed effective
date of this rule. Additional information
collection requirements will occur after
this initial three-year period as (1)
existing facilities will continue to gather
and submit required permit application
materials and (2) new units at existing
facilities commence operations and are
issued permits.
Information and studies to be
submitted under this final rule (as
required by §§ 122.21(r) and 125.95) by
existing facilities and new units at
existing facilities are listed below. For
more information, see Section VIII in
the preamble.
• Source Water Physical Data
(§ 122.21(r)(2))
• Cooling Water Intake Structure Data
(§ 122.21(r)(3))
• Source Water Baseline Biological
Characterization Data (§ 122.21(r)(4))
• Cooling Water System Data
(§ 122.21(r)(5))
• Chosen Method of Compliance
With Impingement Mortality Standards
(§ 122.21(r)(6))
• Performance Studies (§ 122.21(r)(7))
• Operational Status (§ 122.21(r)(8))
• Entrainment Characterization Study
(§ 122.21(r)(9))
• Comprehensive Technical
Feasibility and Cost Evaluation Study
(§ 122.21(r)(10))
• Benefits Valuation Study
(§ 122.21(r)(11))
• Non-Water Quality and Other
Environmental Impacts Study
(§ 122.21(r)(12))
In addition to the information
requirements of the permit application,
NPDES permits normally specify
monitoring and reporting requirements
to be met by the permitted entity.
Existing facilities and new units at
existing facilities are required to
perform monitoring as determined by
the requirements in § 125.94 and in
accordance with §§ 125.96 and 125.97.
Finally, in accordance with
§ 125.95(e), facilities are required to
maintain records of all submissions that
are part of its permit application for a
minimum of five years. If the Director
approves a request for reduced permit
application studies under § 125.95(a) or
§ 125.98(g), the facility must keep
records of all submissions that are part
of a previous permit application for an
additional five years. Also, facilities
must keep records of all submissions
that are part of the permit reporting
requirements for a period of at least five
years from the date of permit issuance,
in accordance with § 125.97(d).
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
1. Definition of Small Entities and
Estimation of the Number of Small
Entities Subject to Today’s Final
Regulation
For EPA’s assessment of the impact of
today’s final rule on small entities,
small entity is defined as either (1) a
small business as defined by SBA
(Small Business Administration)
regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of fewer than 50,000; or (3)
a small organization that is any not-forprofit enterprise that is independently
owned and operated and is not
dominant in its field. Federal or State
entities owning regulated facilities are
not small entities.
EPA performed this assessment
separately for the two classes of
facilities and their owner entities—
electric generators and manufacturers—
that are subject to today’s rule.
a. Electric Generators
EPA followed the SBA criteria for
identifying small, non-government
entities in the electric power industry,
as follows:
• For non-government entities with
electric power generation as a primary
business, small entities were designated
using employment size thresholds
specific to each 6-digit NAICS code.
• For government entities other than
Federal or State governments, small
entities are those with a population of
fewer than 50,000.
• For entities with a primary business
other than electric power generation, the
relevant size criteria are based on
revenue or number of employees by
NAICS sector (see Exhibit XI–2).
EXHIBIT XI–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN ELECTRIC GENERATORS
WITH A PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION
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NAICS code
212111
221210
331110
331315
333611
488320
491110
522110
523910
524126
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
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NAICS description
SBA size standard
Bituminous Coal and Lignite Surface Mining .........................................................................
Natural Gas Distribution .........................................................................................................
Iron and Steel Mills and Ferroalloy Manufacturing ................................................................
Aluminum Sheet, Plate, and Foil Manufacturing ...................................................................
Turbine and Turbine Generator Set Units Manufacturing .....................................................
Marine Cargo Handling ..........................................................................................................
Postal Service ........................................................................................................................
Commercial Banking ..............................................................................................................
Miscellaneous Intermediation .................................................................................................
Direct Property and Casualty Insurance Carriers ..................................................................
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500 employees.
500 employees.
1,000 employees.
750 employees.
1,000 employees.
$35.5 million in revenue.
$7 million in revenue.
$175 million in assets.
$7 million in revenue.
1,500 employees.
Federal Register / Vol. 79, No. 158 / Friday, August 15, 2014 / Rules and Regulations
48417
EXHIBIT XI–2—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN ELECTRIC GENERATORS
WITH A PRIMARY BUSINESS OTHER THAN ELECTRIC POWER GENERATION—Continued
NAICS code
525910
525990
541990
551112
562212
562219
562920
611310
NAICS description
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
SBA size standard
Open-End Investment Funds .................................................................................................
Other Financial Vehicles ........................................................................................................
All Other Professional, Scientific, and Technical Services ....................................................
Offices of Other Holding Companies .....................................................................................
Solid Waste Landfill ...............................................................................................................
Other Nonhazardous Waste Treatment and Disposal ...........................................................
Materials Recovery Facilities .................................................................................................
Colleges, Universities, and Professional Schools .................................................................
EPA conducted this analysis for the
same set of parent entities it analyzed in
the general entity-level cost-to-revenue
analysis discussed in Section IX.D. To
determine whether these are small
entities on the basis of the size criteria
outlined above, EPA compared the
relevant measure for the identified
parent entities to the appropriate SBA
size criterion. EPA conducted this
analysis using (1) facility-level weights
without using entity-level weights, and
(2) entity-level weights without using
facility-level weights (for information on
these two weighting approaches, see
Appendix H of the EA).
$7 million in revenue.
$7 million in revenue.
$14 million in revenue.
$7 million in revenue.
$35.5 million in revenue.
$35.5 million in revenue.
$19 million in revenue.
$25.5 million in revenue.
EPA estimates that between 31 and 52
small entities own electric generators
that are subject to the rule. They
represent approximately 25 to 32
percent of entities that own electric
generators (see Exhibit XI–3).
EXHIBIT XI–3—NUMBER OF ENTITIES THAT OWN ELECTRIC GENERATORS, BY OWNERSHIP TYPE
Using entity-level weights b
Using facility-level weights
Ownership type a
Total
Cooperative ..............................................
Federal .....................................................
Investor-owned .........................................
Municipality ..............................................
Nonutility ..................................................
Other Political Subdivision .......................
State .........................................................
All Entity Types ........................................
Small
13
1
57
19
26
4
3
123
% Small
11
0
6
7
7
0
0
31
Total
84.6
0.0
10.5
36.8
26.9
0.0
0.0
25.2
Small
21
1
60
38
30
6
3
159
% Small
18
0
7
19
8
0
0
52
85.7
0.0
11.7
50.0
26.7
0.0
0.0
32.7
a State
and Federal entities are considered large.
addition to the 52 small parent entities on an unweighted basis, one additional entity is an ‘‘other political subdivision entity’’ for a total of
53. This entity owns only implicitly analyzed facilities; consequently, there is no explicitly analyzed entity in the other political subdivision ownership category to represent this implicitly analyzed small parent entity. As the result, weighted entity counts do not include one small other political
subdivision entity.
b In
b. Manufacturers
EPA also used the SBA criteria for
identifying small, non-government
entities in the manufacturing sector.
Exhibit XI–4 lists the SBA size
threshold guidelines for entities that
own manufacturers.
EXHIBIT XI–4—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN MANUFACTURERS
NAICS code
NAICS description
SBA size standard
$0.75 million in revenue.
$7 million in revenue.
500 employees.
500 employees.
500 employees.
4,000,000 MWh of electric generation.
750 employees.
750 employees.
750 employees.
500 employees.
1,000 employees.
500 employees.
750 employees.
750 employees.
750 employees.
500 employees.
500 employees.
500 employees.
1,500 employees.
emcdonald on DSK67QTVN1PROD with RULES2
111930
113110
211111
212210
212391
221122
..............
..............
..............
..............
..............
..............
Sugarcane Farming ..............................................................................................................
Timber Tract Operations ......................................................................................................
Crude Petroleum and Natural Gas Extraction .....................................................................
Iron Ore Mining ....................................................................................................................
Potash, Soda, and Borate Mineral Mining ...........................................................................
Electric Power Distribution ...................................................................................................
311221
311314
311313
311942
313210
321113
322121
322122
322130
322211
322220
322291
324110
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
Wet Corn Milling ...................................................................................................................
Cane Sugar Manufacturing ..................................................................................................
Beet Sugar Manufacturing ...................................................................................................
Spice and Extract Manufacturing .........................................................................................
Broadwoven Fabric Mills ......................................................................................................
Sawmills ...............................................................................................................................
Paper (except Newsprint) Mills ............................................................................................
Newsprint Mills .....................................................................................................................
Paperboard Mills ..................................................................................................................
Corrugated and Solid Fiber Box Manufacturing ..................................................................
Paper Bag and Coated and Treated Paper Manufacturing .................................................
Sanitary Paper Product Manufacturing ................................................................................
Petroleum Refineries ............................................................................................................
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EXHIBIT XI–4—NAICS CODES AND SBA ENTITY SIZE STANDARDS FOR ENTITIES THAT OWN MANUFACTURERS—
Continued
NAICS code
324191
325120
325180
325199
325211
325311
325320
325412
325510
325992
325998
331110
331210
331221
331222
331313
331315
331410
332312
337910
339999
423310
423930
424510
424690
424710
447190
522220
523910
523930
524126
525990
531110
551112
561110
NAICS description
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
..............
SBA size standard
Petroleum Lubricating Oil and Grease Manufacturing .........................................................
Industrial Gas Manufacturing ...............................................................................................
Other Basic Inorganic Chemical Manufacturing ..................................................................
All Other Basic Organic Chemical Manufacturing ...............................................................
Plastics Material and Resin Manufacturing ..........................................................................
Nitrogenous Fertilizer Manufacturing ...................................................................................
Pesticide and Other Agricultural Chemical Manufacturing ..................................................
Pharmaceutical Preparation Manufacturing .........................................................................
Paint and Coating Manufacturing .........................................................................................
Photographic Film, Paper, Plate and Chemical Manufacturing ...........................................
All Other Miscellaneous Chemical Product and Preparation Manufacturing .......................
Iron and Steel Mills and Ferroalloy Manufacturing ..............................................................
Iron and Steel Pipe and Tube Manufacturing from Purchased Steel ..................................
Rolled Steel Shape Manufacturing ......................................................................................
Steel Wire Drawing ..............................................................................................................
Alumina Refining and Primary Aluminum Production ..........................................................
Aluminum Sheet, Plate and Foil Manufacturing ..................................................................
Nonferrous Metal (except Aluminum) Smelting and Refining ..............................................
Fabricated Structural Metal Manufacturing ..........................................................................
Mattress Manufacturing ........................................................................................................
All Other Miscellaneous Manufacturing ...............................................................................
Lumber, Plywood, Millwork, and Wood Panel Merchant Wholesalers ................................
Recyclable Material Merchant Wholesalers .........................................................................
Grain and Field Bean Merchant Wholesalers ......................................................................
Other Chemical and Allied Products Merchant Wholesalers ...............................................
Petroleum Bulk Stations and Terminals ...............................................................................
Other Gasoline Stations .......................................................................................................
Sales Financing ....................................................................................................................
Miscellaneous Intermediation ...............................................................................................
Investment Advice ................................................................................................................
Direct Property and Casualty Insurance Carriers ................................................................
Other Financial Vehicles ......................................................................................................
Lessors of Residential Buildings and Dwellings ..................................................................
Offices of Other Holding Companies ...................................................................................
Office Administrative Services .............................................................................................
Similar to the analysis conducted for
electric generators, EPA conducted this
analysis for the same set of parent
entities as analyzed in the general,
entity-level, cost-to-revenue analysis
discussed in Section IX.D. To determine
which entities are small, EPA compared
the relevant measure for the identified
parent entities to the appropriate SBA
size criterion. EPA used two sampleweighting schemes in this analysis;
these provide a range of counts of small
entities that own regulated facilities and
the number of regulated facilities that
they own that will incur costs under the
final rule. EPA does not find either of
these sample-weighting schemes to be
superior to the other in the quality of
the resulting estimates of small entity
counts and occurrence of impacts. The
different weighting approaches reflect
the fact that EPA used sample facilities
for the impact analysis and lacks precise
information on the profile of ownership
of the total population of regulated
manufacturers facilities—in terms of the
number of small entities owning
regulated facilities and the number of
regulated facilities that any small entity
would own. EPA developed the
weighting schemes using alternative
bounding assumptions about the profile
of ownership of regulated facilities by
small entities. The weighting schemes
provide lower and upper bound
estimates of the numbers of small
500 employees.
1,000 employees.
1,000 employees.
1,000 employees.
750 employees.
1,000 employees.
500 employees.
750 employees.
500 employees.
500 employees.
500 employees.
1,000 employees.
1,000 employees.
1,000 employees.
1,000 employees.
1,000 employees.
750 employees.
1,000 employees.
500 employees.
500 employees.
500 employees.
100 employees.
100 employees.
100 employees.
100 employees.
100 employees.
$14 million in revenue.
$7 million in revenue.
$7 million in revenue.
$7 million in revenue.
1,500 employees.
$7 million in revenue.
$25 million in revenue.
$7 million in revenue.
$7 million in revenue.
entities, and the numbers of regulated
facilities that they own, and
accordingly, the number of small
entities in each of the cost-to-revenue
impact categories (for information on
the weighting schemes, see Appendix H
of the EA).
From this analysis, EPA estimates that
17 to 52 small entities own regulated
facilities in the six Primary
Manufacturing Industries, representing
approximately 16 percent of all entities
that own regulated facilities in these
industries (see Exhibit XI–5).The
presence of small entities varies by
industry sector.
emcdonald on DSK67QTVN1PROD with RULES2
EXHIBIT XI–5—NUMBER OF SMALL ENTITIES THAT OWN REGULATED FACILITIES, BY INDUSTRY
Lower-bound estimate of number of entities that own regulated facilities
Industry
Total
Aluminum .........................................................................
Chemicals and Allied Products ........................................
Food and Kindred Products .............................................
Paper and Allied Products ...............................................
Petroleum Refining ..........................................................
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4
30
6
37
16
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2
5
0
7
2
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Upper-bound estimate of number of entities that own regulated facilities
50.0
16.7
0.0
18.9
12.5
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Total
Small
11
121
20
104
25
15AUR2
% Small
4
21
0
23
2
40.6
17.7
0.0
21.8
8.4
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EXHIBIT XI–5—NUMBER OF SMALL ENTITIES THAT OWN REGULATED FACILITIES, BY INDUSTRY—Continued
Lower-bound estimate of number of entities that own regulated facilities
Industry
Total
Small
Upper-bound estimate of number of entities that own regulated facilities
% Small
Total
Small
% Small
Steel .................................................................................
Multiple Industries a ..........................................................
13
4
1
0
7.7
0.0
32
14
2
0
5.2
0.0
Primary Manufacturing Industries b—Total ...............
110
17
15.5
327
52
16.0
a These
are small entities that own regulated facilities from multiple industries.
did not compile comparable information for Other Industries facilities and the entities that own them because it did not have a statistically valid sample of facilities from which to develop such estimates.
b EPA
c. Total Number of Small Entities That
Own Regulated Facilities
EPA estimates that between 48 and
104 small entities own regulated
facilities in the electric power industry
and six primary manufacturing
industries together.
2. Statement of Basis
emcdonald on DSK67QTVN1PROD with RULES2
As described above, EPA began the
small entity impact assessment by first
estimating the number of small entities
in the two industry segments subject to
the final rule: Electric generators and
manufacturers. EPA next assessed
whether these small entities would be
expected to incur costs that constitute a
significant impact and, finally, assessed
whether those entities represent a
substantial number of small entities.
EPA summed annualized after-tax
compliance costs for regulated facilities
that are assumed to be owned by a given
small entity and calculated the costs as
a percentage of entity revenue (cost-torevenue test). EPA compared the
resulting percentages to impact criteria
of 1 and 3 percent of revenue. EPA
assumed that small entities estimated to
incur costs below 1 percent of revenue
will not face significant economic
impacts, while small entities with costs
of at least 1 percent of revenue have a
chance of facing economic impacts. EPA
assumed that entities incurring costs of
at least 3 percent of revenue have a
higher likelihood of economic impacts.
For both electric generators and
manufacturers, EPA used sampleweighting approaches that provide a
range of estimates of the numbers of
small entities and regulated facilities
that they own.
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Exhibit XI–6 summarizes the
Regulatory Flexibility Act analysis
results under both weighting
approaches for each regulated facilities
segment. Overall, the RFA analysis for
electric generators found that no small
entities would potentially incur a
significant impact under the final rule.
Specifically, for electric generators, EPA
estimates that zero to three small
entities will incur costs exceeding 1
percent of revenue, while no small
entity will incur costs exceeding 3
percent of revenue. Following EPA’s
guidance on conducting RFA analyses,
the number of small entities above the
threshold as a percent of all small
entities subject to the rule are zero to 10
percent at the 1 percent of revenue
threshold, and zero percent at the 3
percent of revenue threshold.
The findings for manufacturers are
comparable. Specifically, EPA estimates
that three to four small parent entities
will incur costs exceeding 1 percent of
revenue, and zero to one small parent
entity will incur costs exceeding 3
percent of revenue. The associated
percentages of small entities subject to
the final rule are 8 percent to 18 percent
at the 1 percent threshold, and zero
percent to 6 percent at the 3 percent
threshold.
Combining the electric generators and
manufacturers segments, EPA estimates
that three to seven small entities will
incur costs exceeding 1 percent of
revenue, while zero to one small entity
will incur costs exceeding 3 percent of
revenue. The corresponding percentages
of small entities are 4 to 13 percent at
the 1 percent threshold, and zero to 2
percent at the 3 percent threshold.
In summary, under the final rule, EPA
estimates that a small number of small
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parent entities will incur a potentially
significant cost impact in the individual
regulated industry segments, and
overall, for both segments. The
maximum number of small entities
estimated to incur costs exceeding 1
percent is seven, overall, with three of
these small entities in the electric
generators segment and four in the
manufacturers segment. The maximum
number of small entities with costs
exceeding 3 percent is one, overall, with
no small entities in the electric
generators segment and one small entity
in the manufacturers segments. In each
case, the maximum value reflects the
high end of an uncertainty range that is
based on different sample weighting
approaches. EPA judges that values in
the interior of these ranges represent
more reasonable estimates of the
number of small entities incurring
significant impacts. The estimated
numbers of entities with significant
impacts also represent small
percentages of the estimated number of
small entities, overall, and in the
individual segments. The maximum
percentage values at the 1 percent of
revenue threshold are 13 percent,
overall, 10 percent for electric
generators, and 18 percent for
manufacturers. At the 3 percent
threshold, the maximum percentage
values are 2 percent, overall, zero
percent for electric generators, and 6
percent for manufacturers. Again, these
values reflect the high end of an
uncertainty range.
In view of these very modest impacts,
EPA judges that the final rule is not
consequential in terms of potential
impacts for small entities.
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EXHIBIT XI–6—ESTIMATED COST-TO-REVENUE IMPACT FOR SMALL ENTITIES THAT OWN FACILITIES SUBJECT TO THE
REGULATION
Cost impact category
Cost ≥3% of revenue a
Cost ≥1% of revenue a
Regulated Segment
Number of small
entities
Electric Generators ..............................................................................
Manufacturers d ....................................................................................
Electric Generators and Manufacturers d .............................................
0 to 3
3 to 4
3 to 7
% of small
regulated
entities b
0% to 10%
8% to 18%
4% to 13%
Number of small
entities c
0
0 to 1
0 to 1
% of small
regulated
entities b
0%
0% to 6%
0% to 2%
a For both electric generators and manufacturers, EPA used sample-weighting approaches that provide a range of estimates of the numbers of
small entities and regulated facilities they own (see Section VII(D)(a)(iv) for manufactures and see Section VII(D)(b)(1)(b) for electric generator
weighting approaches).
b Percentage of small entities incurring a cost-to-revenue impact involves range estimates in both the numerator (number of affected entities)
and denominator (number of regulated entities).
c Entities with cost-to-revenue ratios of at least 3 percent are included in the number of entities with cost-to-revenue such ratios of at least 1
percent.
d Entity counts used in these calculations exclude manufacturers in other industries. EPA estimated that one small parent entity that owns regulated facilities in other industries would incur costs exceeding 1 percent of revenue.
3. Certification Statement
Given these findings of very small
absolute numbers of small entities
estimated to incur significant impacts
under the final rule, and low
percentages of estimated small entities
incurring impacts, I certify that the final
rule will not have ‘‘a significant impact
on a substantial number of small
entities’’ (no SISNOSE), overall and by
individual industry segment.
D. Unfunded Mandates Reform Act
(UMRA)
Title II of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1531–
1538, requires Federal agencies, unless
otherwise prohibited by law, to assess
the effects of their regulatory actions on
State, local, and Tribal governments and
the private sector. Today’s rule contains
a Federal mandate that may result in
expenditures by State, local, and Tribal
governments, in the aggregate, or the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. Accordingly, under Unfunded
Mandates Reform Act section 202, EPA
has prepared a written statement, which
follows below (see Chapter 11 of the
EA).
emcdonald on DSK67QTVN1PROD with RULES2
1. Summary of Written Statement
a. Authorizing Legislation
Today’s rule is issued under the
authority of CWA sections 101, 301,
304, 306, 308, 316, 401, 402, 501, and
510, (33 U.S.C. 1251, 1311, 1314, 1316,
1318, 1326, 1341, 1342, 1361, and
1370). For detailed information on the
legal authority of this rule, see Section
III of this preamble.
b. Benefit-Cost Analysis
As described above, the costs, benefits
and economic impacts reported in this
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section may be underestimated due to
EPA’s assumption that facilities with
impoundments will qualify as having
closed-cycle recirculating systems in the
baseline and thus, unless additional
controls are required to protect listed
species, will incur no technologyrelated costs. Likewise, for this analysis,
because these facilities are assumed not
to install compliance technology, EPA
also assumed they would achieve no
benefits. Accordingly, the benefits
reported in this section may be
underestimated, based on the
assumption of no technology
installation for facilities with
impoundments.165 The existing and
new unit provisions of today’s rule are
expected to have total annualized pretax (social) costs of $274.9 million.
These costs include direct costs
incurred by facilities and
implementation costs incurred by
Federal, State, and local governments.
The monetized use and nonuse benefits
of the final rule, accounting for the
existing and new unit provisions, are
estimated to be $32.8 million.166 EPA
notes that these differences are based on
a comparison of a partial measure of
benefits with a more complete measure
of costs; therefore, the results must be
interpreted with caution. For a more
detailed comparison of the costs and
benefits of the final rule, see Chapter 8
of the EA.
165 This factor in potential underestimation of
benefits is separate from other considerations that
likely lead to benefits underestimation, as described
in this section and in the EA and BA reports.
166 Both cost and benefit values were annualized
over 51 years and discounted at 3 percent. Values
include costs and benefits estimated for new units.
EPA generated partial estimates of nonuse benefits
for resource changes for a species that represents
less than one percent of adverse environmental
impacts.
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EPA notes that States may be able to
use existing sources of financial
assistance to revise and implement
today’s rule. CWA section 106
authorizes EPA to award grants to
States, Tribes, intertribal consortia, and
interstate agencies for administering
programs for the prevention, reduction,
and elimination of water pollution.
These grants may be used for various
activities to develop and carry out a
water pollution control program,
including permitting, monitoring, and
enforcement. Thus, State and Tribal
NPDES permit programs represent one
type of State program that can be funded
by CWA section 106 grants.
c. Summary of State, Local, and Tribal
Government Input
EPA consulted with State
governments and representatives of
local governments in developing the
rule. The outreach activities are
discussed in Section III.A.3 of the
preamble to the proposed rule (see 76
FR 22268, April 20, 2011) and Chapter
2 of the TDD. EPA has also conducted
additional outreach since the proposed
rule, including several conference calls
with the Association of Clean Water
Administrators (including numerous
states) and small business
representatives (including some local
government officials). EPA also
combined its efforts and collected input
from State and local government entities
during development of the proposed
Effluent Limitations Guidelines and
Standards for the Steam Electric Power
Generating Point Source Category,
which shares many of the same affected
facilities as today’s final rule; see 78 FR
34530 (June 7, 2013) for more
information. State and local officials
attended numerous site visits with
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EPA’s staff, enabling EPA to gather their
input; see DCNs 10–6510, 10–6518, 10–
6520, 10–6521, 10–6523 and 10–6524.
EPA also responded to requests for
information from multiple State and
local governments. EPA also attended
conferences and participated in
workgroups (such as NARUC’s 2013
Winter Committee Meetings) where
additional information about State and
local government interests were
presented. Historically, EPA has also
conducted a great deal of outreach in
developing the previous 316(b)
regulations over the past decade; for
example, see the Phase I final preamble
(66 FR 65331, December 18, 2001), the
Phase II final preamble (69 FR 41677,
July 9, 2004), and the Phase III final
preamble (71 FR 35037, June 16, 2006).
d. Regulatory Option Selected
EPA considered and analyzed several
regulatory options to determine the best
technology available for minimizing
adverse environmental impact. These
regulatory options are discussed in
Section VI of this preamble. These
options included a range of technologybased approaches, from impingement
mortality technology at all facilities
with a DIF of greater than 50 mgd, to
requiring additional impingement
mortality controls and intake flow
commensurate with closed-cycle
cooling for all facilities. As discussed in
detail in Section VI, EPA did not select
options exclusively because they are the
most cost-effective among the options
that fulfill the requirements of section
316(b). EPA selected the final rule
because it meets the requirement of
CWA section 316(b) that the location,
design, construction, and capacity of
cooling water intake structures reflect
the best technology available for
minimizing adverse environmental
impacts. In addition, EPA has
determined that the benefits of the final
rule justify the costs, taking into account
quantified and qualitative benefits and
costs. EPA selected a flexible approach
for the final rule from among the
options considered; it allows
consideration of costs and benefits on a
site-specific basis in determining BTA
for reducing entrainment and has
flexible requirements for reducing
impingement mortality.
EXHIBIT XI–7—NUMBER OF GOVERNMENT-OWNED ELECTRIC GENERATORS, BY SIZE OF GOVERNMENT a
2. Impact of Compliance Requirements
on Small Governments
This rule is not subject to Unfunded
Mandates Reform Act section 203
requirements because it contains no
regulatory requirements that could
significantly or uniquely affect small
governments (i.e., governments with a
population of fewer than 50,000). For its
assessment of the impact of compliance
requirements on small governments,
EPA compared the estimated total costs
and costs per facility that small
governments would incur with the costs
that large governments would incur.
EPA also compared costs for regulated
facilities owned by small-government
entities with costs of regulated facilities
owned by non-government entities. The
Agency evaluated costs per facility on
the basis of both average and maximum
annualized cost. The costs for facilities
owned by small government entities are
less than those estimated for facilities
owned by large government entities, or
owned by small or large nongovernment entities. EPA interprets
these findings to indicate that the final
rule will not uniquely or
disproportionately affect small
governments.
Because no manufacturer is
government-owned, EPA conducted this
analysis for electric generators only.
a. Government-Owned Electric
Generators by Ownership and EntitySize Category
Exhibit XI–7 provides an estimate of
the number of non-Federal government
entities that own electric generators, by
ownership type and size of government
entity. As presented in Exhibit XI–7,
large government entities own 45
electric generators, and small
government entities own 20 electric
generators. Of the 65 facilities owned by
government entities, 48 are owned by
municipalities, six are owned by States
and 11 are owned by other political
subdivisions. Tribal governments own
no regulated facilities.
Entity type
Large
Small
Total
Municipality .............
State Government ..
Other Political Subdivision ................
Tribal Government ..
29
6
19
0
48
6
10
0
1
0
11
0
Total ....................
45
20
65
a Counts of explicitly and implicitly analyzed
electric generators; these are not weighted estimates. For details, see EA Appendix H.
b. Compliance Costs for Electric
Generators Owned by Small
Government Entities
Exhibit XI–8 presents total, average
annualized compliance costs, and
maximum annualized compliance costs
of the final rule for regulated facilities
owned by government (State, local, and
Tribal governments) and nongovernment entities by entity-size
category. For the existing unit provision
of the final rule, EPA estimates that
small government entities will incur a
total annualized cost of $2.6 million,
compared to the total cost of $8.6
million incurred by large government
entities and $8.5 million incurred by
small private entities. On a per facility
basis, EPA estimates that a facility
owned by a small government entity
will on average incur a cost of $0.2
million with a maximum of $0.5
million. The Agency estimates that for
a facility owned by large government
entity, the average cost of the existing
provision of the final rule will be $0.2
million per facility with a maximum of
$1.3 million, while for a facility owned
by a small private entity the average cost
will be $0.2 million per facility with a
maximum of $1.4 million.167 Again,
overall, EPA concludes that the
compliance requirements of the existing
unit provision of today’s rule do not
significantly or uniquely affect small
governments in comparison to either
large governments or small private
entities. For details of this analysis, see
the EA Chapter 11.
EXHIBIT XI–8—ELECTRIC GENERATORS AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE
emcdonald on DSK67QTVN1PROD with RULES2
[In millions, 2011 dollars]
Number of
facilities
(weighted) a
Ownership type
Entity size
Final Rule:
Government (excluding Federal) ...............................
Small ...............
Total
compliance
costs
16
$2.6
167 Excluding Federal government entities and
regulated facilities they own.
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Average cost
per facility d
$0.2
Maximum
facility
cost e
$0.5
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EXHIBIT XI–8—ELECTRIC GENERATORS AND COMPLIANCE COSTS BY OWNERSHIP TYPE AND SIZE—Continued
[In millions, 2011 dollars]
Ownership type
Number of
facilities
(weighted) a
Entity size
Private b .....................................................................
All Facilities c .....................................................................
Large ...............
Small ...............
Large ...............
.........................
Total
compliance
costs
37
53
423
544
Average cost
per facility d
8.6
8.5
184.3
220
Maximum
facility
cost e
0.2
0.2
0.4
0.4
1.3
1.4
5.0
5.0
a Facility counts are weighted estimates and differ from the values reported in Exhibit XI–7, which are un-weighted counts and reflect information for both explicitly and implicitly analyzed electric generators. Sample-weighted values are reported in this table because costs were developed only for the explicitly analyzed electric generators. For details on development of sample weights, see EA Appendix H.
b Facility counts and cost estimates reported for the private sector include facilities owned by rural electric cooperatives.
c Facility counts and cost estimates reported for All Facilities include facilities owned by the Federal government and costs estimated for these
facilities.
d EPA calculated average cost per facility using the total number of regulated facilities owned by entities in a given ownership category.
e Reflects maximum of un-weighted costs to explicitly analyzed facilities only.
3. Administrative Costs
Section 316(b) requirements are
implemented through the NPDES permit
program. EPA estimates that 46 States
and one territory—the relevant
jurisdictions with NPDES permitting
authority under CWA section 402(b)—
will incur costs to administer the final
rule.168 EPA estimates that States and
territories will incur costs for
implementing the requirements of
today’s rule in four activity categories:
(1) Start-up activities to learn and
understand the requirements of today’s
regulation and to implement
administrative structures and
procedures for administering the
regulation; (2) initial permit issuance
activities; (3) annual activities,
including monitoring, reporting and
recordkeeping; and (4) non-annually
recurring permit-related activities.
Exhibit XI–9 presents total annualized
costs for each type of administrative
activity. EPA estimates that State and
local government entities will incur
annualized costs of $0.9 million to
administer the final rule for electric
generators and manufacturers.
Monitoring, reporting and
recordkeeping costs compose the largest
share of administrative costs.
EXHIBIT XI–9—ANNUALIZED GOVERNMENT ADMINISTRATIVE COSTS
[In millions, 2011 dollars]
Cost
Activity
Electric
generators
Total
Manufacturers
Start-up Activities .........................................................................................................................
Initial Permit Issuance Activities ..................................................................................................
Annual Monitoring, Reporting and Recordkeeping Activities ......................................................
Non-Annually Recurring Permit-Related Activities b ....................................................................
NA
$0.2
0.2
b 0.0
NA
$0.2
0.2
0.0
a $0.0
Total ......................................................................................................................................
0.5
0.4
0.9
a Costs
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b Costs
0.4
0.5
0.1
associated with start-up activities are estimated for both electric generators and manufacturers; these costs are less than $20,000.
are less than $50,000.
E. Executive Order 13132: Federalism
Under E.O. 13132, EPA may not issue
an action that has federalism
implications, that imposes substantial
direct compliance costs on the State and
local governments, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the final rule.
The final rule does not have
federalism implications. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
E.O. 13132.This final rule would not
alter the basic State-Federal scheme
established in the CWA under which
EPA authorizes States to carry out the
NPDES permitting program. Prior to this
rule, authorized States were required to
issue NPDES permits including
requirements for CWISs on a case-bycase BPJ basis. 40 CFR 125.90(b). EPA
expects that today’s rule will have little
to no effect on the relationship between,
or the distribution of power and
responsibilities among, the Federal and
State governments.
EPA estimates an average annual
burden of $0.9 million, for State and
local governments to collectively
administer the existing unit provision of
the final rule.169 The rule will also
impose a compliance cost burden on
State and local governments, if those
government entities own facilities that
are subject to today’s rule. EPA has
identified 554 regulated facilities that
are owned by State or local government
entities; the Agency estimates that
under the existing unit provision of the
final rule these facilities will incur an
average annual compliance cost of
168 Federal government permitting authorities
will also incur costs to administer the rule. As
stated earlier in this section, consistent with UMRA
analysis requirements, EPA did not account for
costs to Federal entities in the UMRA analysis.
169 This estimate does not include costs to
administer the new unit provision of the final rule;
however, EPA expects these costs to be small.
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approximately $0.2 million per
facility.170 Because this rule does not
have federalism implications, the
requirements of section 6 of E.O. 13132
do not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have Tribal
implications, as specified in E.O. 13175
(65 FR 67249, November 9, 2000). It
would not have substantial direct effects
on Tribal governments, on the
relationship between the Federal
government and the Tribes, or the
distribution of power and
responsibilities between the Federal
government and Tribes as specified in
E.O. 13175. The national cooling water
intake structure standards would be
implemented through permits issued
under the NPDES program. No Tribal
governments are authorized pursuant to
CWA section 402(b) to implement the
NPDES program. In addition, EPA’s
analyses show that Tribal governments
own no facilities subject to today’s rule;
thus, this rule does not affect Tribes in
any way now or in the foreseeable
future. Thus, E.O. 13175 does not apply
to this action.
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G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to E.O.
13045 because it does not establish an
environmental standard intended to
mitigate health or safety risks. This rule
establishes requirements for cooling
water intake structures to protect the
environment.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
E.O. 13211 (66 FR 28355, May 22,
2001) requires EPA to prepare and
submit a Statement of Energy Effects to
the Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget, for
actions identified as significant energy
actions. On the basis of the Office of
Management and Budget’s guidance for
assessing the potential energy impact of
regulations, the Agency anticipates that
today’s rule may have a significant
adverse effect on the supply,
distribution, or use of energy, thus
requiring EPA to include a Statement of
Energy Effects.
The Agency assessed the energy
effects of today’s rule, specifically, the
170 Cost values were calculated over the 51-year
analysis period used for analysis of social costs,
discounted and annualized using a rate of 7 percent
(see EA Chapters 7 and 11).
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rule’s effect on energy supply,
distribution or use in the electric power
sector, as required under E.O. 13211. In
its energy-effects assessment, EPA relied
on Integrated Planning Model (IPM)
analyses undertaken by EPA for the
final rule. Based on that analysis,
described in Section IX(D)(1)(d) of this
preamble (Assessment of the Impacts in
the Context of Electricity Markets) and
in more detail in Chapter 6 of the EA
report, EPA finds that the compliance
requirements of the final rule may affect
the electric power sector in ways that
would constitute a significant adverse
effect under E.O. 13211, and thus
includes a Statement of Energy Effects
in the economic analysis.
The Agency’s analysis found that the
final rule will not reduce electricity
production in excess of 1 billion kWh
hours per year (or one thousand GWh),
will not increase the cost of energy
production in excess of 1 percent, will
not increase dependence on foreign
supply of energy, and will not
significantly affect domestic coal
production. However, the final rule will
result in net retirement of 998 MW of
generating capacity, which exceeds 500
MW of installed capacity, the threshold
of significant adverse effect identified in
the OMB Implementation Guidance for
E.O. 13211. EPA notes that, with only
one exception, these retirements involve
older, less efficient generating units
with very low capacity utilization rates.
The 998 MW of net retired capacity is
replaced by 589 MW of new capacity;
therefore, because older and less
efficient capacity is replaced by new,
more energy-efficient, and less polluting
capacity, these retirements mean that
409 MW less capacity is needed to
fulfill the same demand.
For more detail on the estimated
energy effects of the final rule, see
Chapter 12 of the EA, which is in the
public docket.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995, Public Law 104–113, 12(d)
(15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its
regulatory activities unless doing so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The National
Technology Transfer and Advancement
Act directs EPA to provide Congress,
through the Office of Management and
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Budget, explanations when the Agency
decides not to use available and
applicable voluntary consensus
standards.
This final rulemaking may involve
technical standards, for example, in
measuring impingement and
entrainment. Nothing in this final rule
would prevent the use of voluntary
consensus standards for such
measurements. EPA encourages
permitting authorities and regulated
entities to use voluntary consensus
standards, where they are available.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
E.O. 12898 (59 FR 7629, February 16,
1994) establishes Federal executive
policy on environmental justice. Its
main provision directs Federal agencies,
to the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that today’s rule
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations. Specifically,
the final rule increases the level of
environmental protection for all affected
populations and has no high and
adverse human health or environmental
effects on any population, including any
minority or low-income population.
Because EPA expects that this final rule
will help to preserve the health of
aquatic ecosystems near regulated
facilities, EPA expects that all
populations, including minority and
low-income populations, will benefit
from improved environmental
conditions.
To meet the objectives of E.O. 12898,
EPA assessed whether today’s rule
could distribute benefits among
population subgroups in a way that is
significantly less favorable to lowincome and minority populations. EPA
compared key demographic
characteristics of affected substate
populations to those demographic
characteristics at the State level. If EPA
had found that the demographic profile
of the substate benefit population is
composed of a significantly lower share
of low-income and/or minority
populations than the State’s general
population, EPA might have assessed
the final rule as yielding an unfavorable
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distribution of benefits, from the
perspective of the public policy
principles of E.O. 12898. The two sets
of demographic variables of interest for
this environmental justice analysis are
race and ethnicity, and annual
household income, which are the
variables in the Fish Consumption
Pathway Module that best capture the
minority and low-income aspects of the
affected populations.171 172 EPA
compared variable averages at the
substate and State levels to determine
whether the demographic profile of the
affected population is consistent with
the State profile (for details, see EA
Chapter 12).
The comparison of minority
populations affected by the regulated
facilities to the affected States’ overall
populations showed no statistically
significant difference between these
groups. While low-income populations
constitute a lower fraction of the benefit
population than of the State’s overall
population in many States, the two
groups are not significantly different.
EPA thus determined that the final rule
does not systematically discriminate
against, or exclude or deny participation
of, the lower income population group
or the minority population group in the
benefits of the final rule in a way that
would be contrary to the intent of E.O.
12898. Overall, EPA thus concluded
that the final rule is consistent with the
policy intent of E.O. 12898.
Anecdotally, minority (e.g., Native
American) and low-income populations
might be more likely to include a larger
proportion of subsistence fishermen.
Because this rule will increase
abundance of all fish species in the
areas affected by cooling water intakes,
it might provide a benefit to subsistence
fishermen. To the extent that minority
and low-income populations are overrepresented in this group, they might
especially benefit from this rule.
171 Annual household income data in the FCP
Module are available for the following categories:
less than $10,000; $10,000 to $19,999; $20,000 to
$24,999; $25,000 to $29,999; $30,000 to $34,999;
$35,000 to $39,999; $40,000 to $49,999; $50,000 to
$74,999; $75,000 to $99,999; and more than
$100,000. For this analysis and previous 316(b) rule
analyses, these categories were combined into lowand not low-income groups based on the U.S.
Department of Health and Human Services’ poverty
guidelines for a family of four living in the
contiguous United States or DC The current (2013)
poverty guideline is $23,550, which falls near the
upper end of the $20,000 to $24,999 income range
(U.S. HHS, 2013). For the current analysis, EPA
used $25,000 as the threshold for separating
populations into low- and not low-income groups.
172 Race and ethnic categories used in the analysis
include white non-Hispanic, white Hispanic, black
or African American, Asian or Native Hawaiian or
Other Pacific Island, and American Indian and
Alaska Native.
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K. Executive Order 13158: Marine
Protected Areas
E.O. 13158 (65 FR 34909, May 31,
2000) requires EPA to ‘‘expeditiously
propose new science-based regulations,
as necessary, to ensure appropriate
levels of protection for the marine
environment.’’ EPA may take action to
enhance or expand protection of
existing marine protected areas and to
establish or recommend, as appropriate,
new marine protected areas. The
purpose of this executive order is to
protect significant natural and cultural
resources in the marine environment,
which means ‘‘those areas of coastal and
ocean waters, the Great Lakes and their
connecting waters, and submerged lands
thereunder, over which the United
States exercises jurisdiction, consistent
with international law.’’
Today’s rule recognizes the biological
sensitivity of tidal rivers, estuaries,
oceans, and the Great Lakes, and their
susceptibility to adverse environmental
impacts from cooling water intake
structures. The rule provides
requirements to minimize adverse
environmental impacts for cooling water
intake structures on these types of
waterbodies.
EPA used GIS data of the locations of
MPAs (Marine Protected Areas) from the
national MPA program (https://
www.mpa.gov/helpful_resources/
inventory.html) to locate regulated
facilities in MPAs. Under the final rule,
60 percent of regulated facilities in
MPAs obtain reductions in
impingement mortality. As noted above,
because of EPA’s assumption that
facilities with impoundments will not
need to install compliance technology,
this may be an underestimate. EPA
cannot estimate reductions in
entrainment because they would be
based on site-specific determinations of
BTA. Therefore, EPA expects that
today’s rule will advance the objective
of the executive order to protect marine
areas. For more details on this analysis
and analysis results, see BA Chapter 8.
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is a ‘‘major rule’’ as defined
by 5 U.S.C. 804(2). This rule will be
effective October 14, 2014.
List of Subjects
40 CFR Part 122
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Reporting and
recordkeeping requirements, Water
pollution control.
40 CFR Part 125
Environmental protection, Cooling
water intake structure, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control.
Dated: May 19, 2014.
Gina McCarthy,
Administrator.
For reasons set out in the preamble,
Chapter I of Title 40 of the Code of
Federal Regulations is amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. The suspension of 40 CFR
122.21(r)(1)(ii) and (r)(5), published on
July 9, 2007 (72 FR 37109) is lifted.
■ 3. Section 122.21 is amended as
follows:
■ a. Revising paragraph (r)(1).
■ b. Adding paragraphs (r)(4)(ix)
through (xii).
■ c. Revising paragraph (r)(5).
■ d. Adding paragraphs (r)(6) through
(14).
■
L. Congressional Review Act
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
*
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*
*
*
*
(r) * * *
(1) * * *
(i) New facilities with new or modified
cooling water intake structures. New
facilities (other than offshore oil and gas
extraction facilities) with cooling water
intake structures as defined in part 125,
subpart I of this chapter, must submit to
the Director for review the information
required under paragraphs (r)(2) (except
(r)(2)(iv)), (3), and (4) (except (r)(4)(ix),
(x), (xi), and (xii)) of this section and
§ 125.86 of this chapter as part of the
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permit application. New offshore oil
and gas extraction facilities with cooling
water intake structures as defined in
part 125, subpart N, of this chapter that
are fixed facilities must submit to the
Director for review the information
required under paragraphs (r)(2) (except
(r)(2)(iv)), (3), and (4) (except (r)(4)(ix),
(x), (xi), and (xii)) of this section and
§ 125.136 of this chapter as part of their
permit application.
(ii) Existing facilities. (A) All existing
facilities. The owner or operator of an
existing facility defined at 40 CFR
125.92(k) must submit to the Director
for review the information required
under paragraphs (r)(2) and (3) of this
section and applicable provisions of
paragraphs (r)(4), (5), (6), (7), and (8) of
this section.
(B) Existing facilities greater than 125
mgd AIF. In addition, the owner or
operator of an existing facility that
withdraws greater than 125 mgd actual
intake flow (AIF), as defined at 40 CFR
125.92 (a), of water for cooling purposes
must also submit to the Director for
review the information required under
paragraphs (r)(9), (10), (11), (12), and
(13) of this section. If the owner or
operator of an existing facility intends to
comply with the BTA (best technology
available) standards for entrainment
using a closed-cycle recirculating
system as defined at 40 CFR 125.92(c),
the Director may reduce or waive some
or all of the information required under
paragraphs (r)(9) through (13) of this
section.
(C) Additional information. The
owner or operator of an existing facility
must also submit such additional
information as the Director determines
is necessary pursuant to 40 CFR
125.98(i).
(D) New units at existing facilities.
The owner or operator of a new unit at
an existing facility, as defined at 40 CFR
125.92(u), must submit or update any
information previously provided to the
Director by submitting the information
required under paragraphs (r)(2), (3), (5),
(8), and (14) of this section and
applicable provisions of paragraphs
(r)(4), (6), and (7) of this section.
Requests for and approvals of
alternative requirements sought under
40 CFR 125.94(e)(2) or 125.98(b)(7) must
be submitted with the permit
application.
(E) New units at existing facilities not
previously subject to Part 125. The
owner or operator of a new unit as
defined at 40 CFR 125.92(u) at an
existing facility not previously subject
to part 125 of this chapter that increases
the total capacity of the existing facility
to more than 2 mgd DIF must submit the
information required under paragraphs
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(r)(2), (3), (5), and (8) of this section and
applicable provisions of paragraphs
(r)(4), (6), and (7) of this section at the
time of the permit application for the
new unit. Requests for alternative
requirements under 40 CFR 125.94(e)(2)
or 125.98(b)(7) must be submitted with
the permit application. If the total
capacity of the facility will increase to
more than 125 mgd AIF, the owner or
operator must also submit the
information required in paragraphs
(r)(9) through (13) of this section. If the
owner or operator of an existing facility
intends to comply with the BTA (best
technology available) standards for
entrainment using a closed-cycle
recirculating system as defined at 40
CFR 125.92(c), the Director may reduce
or waive some or all of the information
required under paragraphs (r)(9) through
(13) of this section.
(F) If the owner or operator of an
existing facility plans to retire the
facility before the current permit
expires, then the requirements of
paragraphs (r)(1)(ii)(A), (B), (C), (D), and
(E) of this section do not apply.
(G) If the owner or operator of an
existing facility plans to retire the
facility after the current permit expires
but within one permit cycle, then the
Director may waive the requirements of
paragraphs (r)(7), (9), (10), (11), (12), and
(13) of this section pending a signed
certification statement from the owner
or operator of the facility specifying the
last operating date of the facility.
(H) All facilities. The owner or
operator of any existing facility or new
unit at any existing facility must also
submit with its permit application all
information received as a result of any
communication with a Field Office of
the Fish and Wildlife Service and/or
Regional Office of the National Marine
Fisheries Service.
*
*
*
*
*
(4) * * *
(ix) In the case of the owner or
operator of an existing facility or new
unit at an existing facility, the Source
Water Baseline Biological
Characterization Data is the information
in paragraphs (r)(4)(i) through (xii) of
this section.
(x) For the owner or operator of an
existing facility, identification of
protective measures and stabilization
activities that have been implemented,
and a description of how these measures
and activities affected the baseline water
condition in the vicinity of the intake.
(xi) For the owner or operator of an
existing facility, a list of fragile species,
as defined at 40 CFR 125.92(m), at the
facility. The applicant need only
identify those species not already
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identified as fragile at 40 CFR
125.92(m). New units at an existing
facility are not required to resubmit this
information if the cooling water
withdrawals for the operation of the
new unit are from an existing intake.
(xii) For the owner or operator of an
existing facility that has obtained
incidental take exemption or
authorization for its cooling water
intake structure(s) from the U.S. Fish
and Wildlife Service or the National
Marine Fisheries Service, any
information submitted in order to obtain
that exemption or authorization may be
used to satisfy the permit application
information requirement of paragraph
40 CFR 125.95(f) if included in the
application.
(5) Cooling Water System Data. The
owner or operator of an existing facility
must submit the following information
for each cooling water intake structure
used or intended to be used:
(i) A narrative description of the
operation of the cooling water system
and its relationship to cooling water
intake structures; the proportion of the
design intake flow that is used in the
system; the number of days of the year
the cooling water system is in operation
and seasonal changes in the operation of
the system, if applicable; the proportion
of design intake flow for contact
cooling, non-contact cooling, and
process uses; a distribution of water
reuse to include cooling water reused as
process water, process water reused for
cooling, and the use of gray water for
cooling; a description of reductions in
total water withdrawals including
cooling water intake flow reductions
already achieved through minimized
process water withdrawals; a
description of any cooling water that is
used in a manufacturing process either
before or after it is used for cooling,
including other recycled process water
flows; the proportion of the source
waterbody withdrawn (on a monthly
basis);
(ii) Design and engineering
calculations prepared by a qualified
professional and supporting data to
support the description required by
paragraph (r)(5)(i) of this section; and
(iii) Description of existing
impingement and entrainment
technologies or operational measures
and a summary of their performance,
including but not limited to reductions
in impingement mortality and
entrainment due to intake location and
reductions in total water withdrawals
and usage.
(6) Chosen Method(s) of Compliance
with Impingement Mortality Standard.
The owner or operator of the facility
must identify the chosen compliance
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method for the entire facility;
alternatively, the applicant must
identify the chosen compliance method
for each cooling water intake structure
at its facility. The applicant must
identify any intake structure for which
a BTA determination for Impingement
Mortality under 40 CFR 125.94 (c)(11) or
(12) is requested. In addition, the owner
or operator that chooses to comply via
40 CFR 125.94 (c)(5) or (6) must also
submit an impingement technology
performance optimization study as
described below:
(i) If the applicant chooses to comply
with 40 CFR 125.94(c)(5), subject to the
flexibility for timing provided in 40 CFR
125.95(a)(2), the impingement
technology performance optimization
study must include two years of
biological data collection measuring the
reduction in impingement mortality
achieved by the modified traveling
screens as defined at 40 CFR 125.92(s)
and demonstrating that the operation
has been optimized to minimize
impingement mortality. A complete
description of the modified traveling
screens and associated equipment must
be included, including, for example,
type of mesh, mesh slot size, pressure
sprays and fish return mechanisms. A
description of any biological data
collection and data collection approach
used in measuring impingement
mortality must be included:
(A) Collecting data no less frequently
than monthly. The Director may
establish more frequent data collection;
(B) Biological data collection
representative of the impingement and
the impingement mortality at the
intakes subject to this provision;
(C) A taxonomic identification to the
lowest taxon possible of all organisms
collected;
(D) The method in which naturally
moribund organisms are identified and
taken into account;
(E) The method in which mortality
due to holding times is taken into
account;
(F) If the facility entraps fish or
shellfish, a count of entrapment, as
defined at 40 CFR 125.92(j), as
impingement mortality; and
(G) The percent impingement
mortality reflecting optimized operation
of the modified traveling screen and all
supporting calculations.
(ii) If the applicant chooses to comply
with 40 CFR 125.94(c)(6), the
impingement technology performance
optimization study must include
biological data measuring the reduction
in impingement mortality achieved by
operation of the system of technologies,
operational measures and best
management practices, and
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demonstrating that operation of the
system has been optimized to minimize
impingement mortality. This system of
technologies, operational measures and
best management practices may include
flow reductions, seasonal operation,
unit closure, credit for intake location,
and behavioral deterrent systems. The
applicant must document how each
system element contributes to the
system’s performance. The applicant
must include a minimum of two years
of biological data measuring the
reduction in impingement mortality
achieved by the system. The applicant
must also include a description of any
sampling or data collection approach
used in measuring the rate of
impingement, impingement mortality,
or flow reductions.
(A) Rate of Impingement. If the
demonstration relies in part on a credit
for reductions in the rate of
impingement in the system, the
applicant must provide an estimate of
those reductions to be used as credit
towards reducing impingement
mortality, and any relevant supporting
documentation, including previously
collected biological data, performance
reviews, and previously conducted
performance studies not already
submitted to the Director. The
submission of studies more than 10
years old must include an explanation
of why the data are still relevant and
representative of conditions at the
facility and explain how the data should
be interpreted using the definitions of
impingement and entrapment at 40 CFR
125.92(n) and (j), respectively. The
estimated reductions in rate of
impingement must be based on a
comparison of the system to a oncethrough cooling system with a traveling
screen whose point of withdrawal from
the surface water source is located at the
shoreline of the source waterbody. For
impoundments that are waters of the
United States in whole or in part, the
facility’s rate of impingement must be
measured at a location within the
cooling water intake system that the
Director deems appropriate. In addition,
the applicant must include two years of
biological data collection demonstrating
the rate of impingement resulting from
the system. For this demonstration, the
applicant must collect data no less
frequently than monthly. The Director
may establish more frequent data
collection.
(B) Impingement Mortality. If the
demonstration relies in part on a credit
for reductions in impingement mortality
already obtained at the facility, the
applicant must include two years of
biological data collection demonstrating
the level of impingement mortality the
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system is capable of achieving. The
applicant must submit any relevant
supporting documentation, including
previously collected biological data,
performance reviews, and previously
conducted performance studies not
already submitted to the Director. The
applicant must provide a description of
any sampling or data collection
approach used in measuring
impingement mortality. In addition, for
this demonstration the applicant must:
(1) Collect data no less frequently
than monthly. The Director may
establish more frequent data collection;
(2) Conduct biological data collection
that is representative of the
impingement and the impingement
mortality at an intake subject to this
provision. In addition, the applicant
must describe how the location of the
cooling water intake structure in the
waterbody and the water column are
accounted for in the points of data
collection;
(3) Include a taxonomic identification
to the lowest taxon possible of all
organisms to be collected;
(4) Describe the method in which
naturally moribund organisms are
identified and taken into account;
(5) Describe the method in which
mortality due to holding times is taken
into account; and
(6) If the facility entraps fish or
shellfish, a count of the entrapment, as
defined at 40 CFR 125.92(j), as
impingement mortality.
(C) Flow reduction. If the
demonstration relies in part on flow
reduction to reduce impingement, the
applicant must include two years of
intake flows, measured daily, as part of
the demonstration, and describe the
extent to which flow reductions are
seasonal or intermittent. The applicant
must document how the flow reduction
results in reduced impingement. In
addition, the applicant must describe
how the reduction in impingement has
reduced impingement mortality.
(D) Total system performance. The
applicant must document the percent
impingement mortality reflecting
optimized operation of the total system
of technologies, operational measures,
and best management practices and all
supporting calculations. The total
system performance is the combination
of the impingement mortality
performance reflected in paragraphs
(r)(6)(ii)(A), (B), and (C) of this section.
(7) Entrainment Performance Studies.
The owner or operator of an existing
facility must submit any previously
conducted studies or studies obtained
from other facilities addressing
technology efficacy, through-facility
entrainment survival, and other
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entrainment studies. Any such
submittals must include a description of
each study, together with underlying
data, and a summary of any conclusions
or results. Any studies conducted at
other locations must include an
explanation as to why the data from
other locations are relevant and
representative of conditions at your
facility. In the case of studies more than
10 years old, the applicant must explain
why the data are still relevant and
representative of conditions at the
facility and explain how the data should
be interpreted using the definition of
entrainment at 40 CFR 125.92(h).
(8) Operational Status. The owner or
operator of an existing facility must
submit a description of the operational
status of each generating, production, or
process unit that uses cooling water,
including but not limited to:
(i) For power production or steam
generation, descriptions of individual
unit operating status including age of
each unit, capacity utilization rate (or
equivalent) for the previous 5 years,
including any extended or unusual
outages that significantly affect current
data for flow, impingement,
entrainment, or other factors, including
identification of any operating unit with
a capacity utilization rate of less than 8
percent averaged over a 24-month block
contiguous period, and any major
upgrades completed within the last 15
years, including but not limited to boiler
replacement, condenser replacement,
turbine replacement, or changes to fuel
type;
(ii) Descriptions of completed,
approved, or scheduled uprates and
Nuclear Regulatory Commission
relicensing status of each unit at nuclear
facilities;
(iii) For process units at your facility
that use cooling water other than for
power production or steam generation,
if you intend to use reductions in flow
or changes in operations to meet the
requirements of 40 CFR 125.94(c),
descriptions of individual production
processes and product lines, operating
status including age of each line,
seasonal operation, including any
extended or unusual outages that
significantly affect current data for flow,
impingement, entrainment, or other
factors, any major upgrades completed
within the last 15 years, and plans or
schedules for decommissioning or
replacement of process units or
production processes and product lines;
(iv) For all manufacturing facilities,
descriptions of current and future
production schedules; and
(v) Descriptions of plans or schedules
for any new units planned within the
next 5 years.
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(9) Entrainment Characterization
Study. The owner or operator of an
existing facility that withdraws greater
than 125 mgd AIF, where the
withdrawal of cooling water is
measured at a location within the
cooling water intake structure that the
Director deems appropriate, must
develop for submission to the Director
an Entrainment Characterization Study
that includes a minimum of two years
of entrainment data collection. The
Entrainment Characterization Study
must include the following components:
(i) Entrainment Data Collection
Method. The study should identify and
document the data collection period and
frequency. The study should identify
and document organisms collected to
the lowest taxon possible of all life
stages of fish and shellfish that are in
the vicinity of the cooling water intake
structure(s) and are susceptible to
entrainment, including any organisms
identified by the Director, and any
species protected under Federal, State,
or Tribal law, including threatened or
endangered species with a habitat range
that includes waters in the vicinity of
the cooling water intake structure.
Biological data collection must be
representative of the entrainment at the
intakes subject to this provision. The
owner or operator of the facility must
identify and document how the location
of the cooling water intake structure in
the waterbody and the water column are
accounted for by the data collection
locations;
(ii) Biological Entrainment
Characterization. Characterization of all
life stages of fish, shellfish, and any
species protected under Federal, State,
or Tribal law (including threatened or
endangered species), including a
description of their abundance and their
temporal and spatial characteristics in
the vicinity of the cooling water intake
structure(s), based on sufficient data to
characterize annual, seasonal, and diel
variations in entrainment, including but
not limited to variations related to
climate and weather differences,
spawning, feeding, and water column
migration. This characterization may
include historical data that are
representative of the current operation
of the facility and of biological
conditions at the site. Identification of
all life stages of fish and shellfish must
include identification of any surrogate
species used, and identification of data
representing both motile and non-motile
life-stages of organisms;
(iii) Analysis and Supporting
Documentation. Documentation of the
current entrainment of all life stages of
fish, shellfish, and any species protected
under Federal, State, or Tribal law
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48427
(including threatened or endangered
species). The documentation may
include historical data that are
representative of the current operation
of the facility and of biological
conditions at the site. Entrainment data
to support the facility’s calculations
must be collected during periods of
representative operational flows for the
cooling water intake structure, and the
flows associated with the data collection
must be documented. The method used
to determine latent mortality along with
data for specific organism mortality or
survival that is applied to other lifestages or species must be identified. The
owner or operator of the facility must
identify and document all assumptions
and calculations used to determine the
total entrainment for that facility
together with all methods and quality
assurance/quality control procedures for
data collection and data analysis. The
proposed data collection and data
analysis methods must be appropriate
for a quantitative survey.
(10) Comprehensive Technical
Feasibility and Cost Evaluation Study.
The owner or operator of an existing
facility that withdraws greater than 125
mgd AIF must develop for submission
to the Director an engineering study of
the technical feasibility and incremental
costs of candidate entrainment control
technologies. In addition, the study
must include the following:
(i) Technical feasibility. An evaluation
of the technical feasibility of closedcycle recirculating systems as defined at
40 CFR 125.92(c), fine mesh screens
with a mesh size of 2 millimeters or
smaller, and water reuse or alternate
sources of cooling water. In addition,
this study must include:
(A) A description of all technologies
and operational measures considered
(including alternative designs of closedcycle recirculating systems such as
natural draft cooling towers, mechanical
draft cooling towers, hybrid designs,
and compact or multi-cell
arrangements);
(B) A discussion of land availability,
including an evaluation of adjacent land
and acres potentially available due to
generating unit retirements, production
unit retirements, other buildings and
equipment retirements, and potential for
repurposing of areas devoted to ponds,
coal piles, rail yards, transmission
yards, and parking lots;
(C) A discussion of available sources
of process water, grey water, waste
water, reclaimed water, or other waters
of appropriate quantity and quality for
use as some or all of the cooling water
needs of the facility; and
(D) Documentation of factors other
than cost that may make a candidate
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technology impractical or infeasible for
further evaluation.
(ii) Other entrainment control
technologies. An evaluation of
additional technologies for reducing
entrainment may be required by the
Director.
(iii) Cost evaluations. The study must
include engineering cost estimates of all
technologies considered in paragraphs
(r)(10)(i) and (ii) of this section. Facility
costs must also be adjusted to estimate
social costs. All costs must be presented
as the net present value (NPV) and the
corresponding annual value. Costs must
be clearly labeled as compliance costs or
social costs. The applicant must
separately discuss facility level
compliance costs and social costs, and
provide documentation as follows:
(A) Compliance costs are calculated as
after-tax, while social costs are
calculated as pre-tax. Compliance costs
include the facility’s administrative
costs, including costs of permit
application, while the social cost
adjustment includes the Director’s
administrative costs. Any outages,
downtime, or other impacts to facility
net revenue, are included in compliance
costs, while only that portion of lost net
revenue that does not accrue to other
producers can be included in social
costs. Social costs must also be
discounted using social discount rates
of 3 percent and 7 percent. Assumptions
regarding depreciation schedules, tax
rates, interest rates, discount rates and
related assumptions must be identified;
(B) Costs and explanation of any
additional facility modifications
necessary to support construction and
operation of technologies considered in
paragraphs (r)(10)(i) and (ii) of this
section, including but not limited to
relocation of existing buildings or
equipment, reinforcement or upgrading
of existing equipment, and additional
construction and operating permits.
Assumptions regarding depreciation
schedules, interest rates, discount rates,
useful life of the technology considered,
and any related assumptions must be
identified; and
(C) Costs and explanation for
addressing any non-water quality
environmental and other impacts
identified in paragraph (r)(12) of this
section. The cost evaluation must
include a discussion of all reasonable
attempts to mitigate each of these
impacts.
(11) Benefits Valuation Study. The
owner or operator of an existing facility
that withdraws greater than 125 mgd
AIF must develop for submission to the
Director an evaluation of the benefits of
the candidate entrainment reduction
technologies and operational measures
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evaluated in paragraph (r)(10) of this
section including using the Entrainment
Characterization Study completed in
paragraph (r)(9) of this section. Each
category of benefits must be described
narratively, and when possible, benefits
should be quantified in physical or
biological units and monetized using
appropriate economic valuation
methods. The benefits valuation study
must include, but is not limited to, the
following elements:
(i) Incremental changes in the
numbers of individual fish and shellfish
lost due to impingement mortality and
entrainment as defined in 40 CFR
125.92, for all life stages of each
exposed species;
(ii) Description of basis for any
estimates of changes in the stock sizes
or harvest levels of commercial and
recreational fish or shellfish species or
forage fish species;
(iii) Description of basis for any
monetized values assigned to changes in
the stock size or harvest levels of
commercial and recreational fish or
shellfish species, forage fish, and to any
other ecosystem or non use benefits;
(iv) A discussion of mitigation efforts
completed prior to October 14, 2014
including how long they have been in
effect and how effective they have been;
(v) Discussion, with quantification
and monetization, where possible, of
any other benefits expected to accrue to
the environment and local communities,
including but not limited to
improvements for mammals, birds, and
other organisms and aquatic habitats;
(vi) Discussion, with quantification
and monetization, where possible, of
any benefits expected to result from any
reductions in thermal discharges from
entrainment technologies.
(12) Non-water Quality Environmental
and Other Impacts Study. The owner or
operator of an existing facility that
withdraws greater than 125 mgd AIF
must develop for submission to the
Director a detailed facility-specific
discussion of the changes in non-water
quality environmental and other
impacts attributed to each technology
and operational measure considered in
paragraph (r)(10) of this section,
including both impacts increased and
impacts decreased. The study must
include the following:
(i) Estimates of changes to energy
consumption, including but not limited
to auxiliary power consumption and
turbine backpressure energy penalty;
(ii) Estimates of air pollutant
emissions and of the human health and
environmental impacts associated with
such emissions;
(iii) Estimates of changes in noise;
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(iv) A discussion of impacts to safety,
including documentation of the
potential for plumes, icing, and
availability of emergency cooling water;
(v) A discussion of facility reliability,
including but not limited to facility
availability, production of steam,
impacts to production based on process
unit heating or cooling, and reliability
due to cooling water availability;
(vi) Significant changes in
consumption of water, including a
facility-specific comparison of the
evaporative losses of both once-through
cooling and closed-cycle recirculating
systems, and documentation of impacts
attributable to changes in water
consumption; and
(vii) A discussion of all reasonable
attempts to mitigate each of these
factors.
(13) Peer Review. If the applicant is
required to submit studies under
paragraphs (r)(10) through (12) of this
section, the applicant must conduct an
external peer review of each report to be
submitted with the permit application.
The applicant must select peer
reviewers and notify the Director in
advance of the peer review. The Director
may disapprove of a peer reviewer or
require additional peer reviewers. The
Director may confer with EPA, Federal,
State and Tribal fish and wildlife
management agencies with
responsibility for fish and wildlife
potentially affected by the cooling water
intake structure, independent system
operators, and state public utility
regulatory agencies, to determine which
peer review comments must be
addressed. The applicant must provide
an explanation for any significant
reviewer comments not accepted. Peer
reviewers must have appropriate
qualifications and their names and
credentials must be included in the peer
review report.
(14) New Units. The applicant must
identify the chosen compliance method
for the new unit. In addition, the owner
or operator that selects the BTA
standards for new units at 40 CFR
125.94 (e)(2) as its route to compliance
must submit information to demonstrate
entrainment reductions equivalent to 90
percent or greater of the reduction that
could be achieved through compliance
with 40 CFR 125.94(e)(1). The
demonstration must include the
Entrainment Characterization Study at
paragraph (r)(9) of this section. In
addition, if data specific to your facility
indicates that compliance with the
requirements of § 125.94 of this chapter
for each new unit would result in
compliance costs wholly out of
proportion to the costs EPA considered
in establishing the requirements at
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issue, or would result in significant
adverse impacts on local air quality,
significant adverse impacts on local
water resources other than impingement
or entrainment, or significant adverse
impacts on local energy markets, you
must submit all supporting data as part
of paragraph (r)(14) of this section. The
Director may determine that additional
data and information, including but not
limited to monitoring, must be included
as part of paragraph (r)(14) of this
section.
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
4. The authority citation for part 125
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.
Subpart I—[Amended]
5. Section 125.84 is amended by
revising paragraphs (c) introductory text
and (d)(1) to read as follows:
■
§ 125.84 As an owner or operator of a new
facility, what must I do to comply with this
subpart?
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*
*
*
*
*
(c) Track I requirements for new
facilities that withdraw greater than 2
mgd and less than 10 mgd and that
choose not to comply with paragraph (b)
of this section. You must comply with
all the following requirements:
*
*
*
*
*
(d) * * *
(1) You must demonstrate to the
Director that the technologies employed
will reduce the level of adverse
environmental impact from your cooling
water intake structures to a level
comparable to that which you would
achieve were you to implement the
requirements of paragraphs (b)(1) and
(2) of this section. This demonstration
must include a showing that the impacts
to fish and shellfish, including
important forage and predator species,
within the watershed will be
comparable to those which would result
if you were to implement the
requirements of paragraphs (b)(1) and
(2) of this section. The Director will
consider information provided by any
fishery management agency and may
also consider data and information from
other sources.
*
*
*
*
*
■ 6. Section 125.86 is amended as
follows:
■ a. Revise paragraphs (a)(1)(ii), (b)(3)
introductory text, and (b)(4)(iii)
introductory text.
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b. Remove and reserve paragraphs
(c)(2)(ii), (c)(2)(iv)(C), and
(c)(2)(iv)(D)(2).
■
§ 125.86 As an owner or operator of a new
facility, what must I collect and submit
when I apply for my new or reissued NPDES
permit?
(a) * * *
(1) * * *
(ii) The Track I requirements for new
facilities that withdraw greater than 2
mgd and less than 10 mgd in
§ 125.84(c);
*
*
*
*
*
(b) * * *
(3) Source waterbody flow
information. You must submit to the
Director the following information to
demonstrate that your cooling water
intake structure meets the flow
requirements in § 125.84(b)(3) or (c)(2).
*
*
*
*
*
(4) * * *
(iii) The owner or operator of a new
facility required to install design and
construction technologies and/or
operational measures must develop a
plan which explains the technologies
and measures selected; this plan shall
be based on information collected for
the Source Water Biological Baseline
Characterization required by 40 CFR
122.21(r)(4). Examples of appropriate
technologies include, but are not limited
to, wedgewire screens, fine mesh
screens, fish handling and return
systems, barrier nets, aquatic filter
barrier systems, etc. Examples of
appropriate operational measures
include, but are not limited to, seasonal
shutdowns or reductions in flow, and
continuous operations of screens, etc.
The plan must contain the following
information:
*
*
*
*
*
■ 7. Section 125.87 is amended by
revising paragraphs (a) introductory text
and (a)(2) to read as follows:
§ 125.87 As an owner or operator of a new
facility, must I perform monitoring?
*
*
*
*
*
(a) Biological monitoring. You must
monitor both impingement and
entrainment of the commercial,
recreational, and forage base fish and
shellfish species identified in either the
Source Water Baseline Biological
Characterization data required by 40
CFR 122.21(r)(4) or the Comprehensive
Demonstration Study required by
§ 125.86(c)(2), depending on whether
you chose to comply with Track I or
Track II. The monitoring methods used
must be consistent with those used for
the Source Water Baseline Biological
Characterization data required in 40
CFR 122.21(r)(4) or the Comprehensive
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48429
Demonstration Study required by
§ 125.86(c)(2). You must follow the
monitoring frequencies identified below
for at least two (2) years after the initial
permit issuance. After that time, the
Director may approve a request for less
frequent sampling in the remaining
years of the permit term and when the
permit is reissued, if the Director
determines the supporting data show
that less frequent monitoring would still
allow for the detection of any seasonal
and daily variations in the species and
numbers of individuals that are
impinged or entrained.
*
*
*
*
*
(2) Entrainment sampling. You must
collect samples at least biweekly to
monitor entrainment rates (simple
enumeration) for each species over a 24hour period during the primary period
of reproduction, larval recruitment, and
peak abundance identified during the
Source Water Baseline Biological
Characterization required by 40 CFR
122.21(r)(4) or the Comprehensive
Demonstration Study required in
§ 125.86(c)(2). You must collect samples
only when the cooling water intake
structure is in operation.
*
*
*
*
*
■ 8. Section 125.89 is amended by
revising paragraphs (a) introductory text
and (b)(1)(i) and (ii) to read as follows:
§ 125.89 As the Director, what must I do to
comply with the requirements of this
subpart?
(a) Permit application. As the
Director, you must review materials
submitted by the applicant under 40
CFR 122.21(r)(4) and § 125.86 at the
time of the initial permit application
and before each permit renewal or
reissuance.
*
*
*
*
*
(b) * * *
(1) * * *
(i) If an owner or operator of a facility
chooses Track I, you must review the
Design and Construction Technology
Plan required in § 125.86(b)(4) to
evaluate the suitability and feasibility of
the technology proposed to minimize
impingement mortality and entrainment
of all life stages of fish and shellfish. In
the first permit issued, you must put a
condition requiring the facility to
reduce impingement mortality and
entrainment commensurate with the
implementation of the technologies in
the permit. Under subsequent permits,
the Director must review the
performance of the technologies
implemented and require additional or
different design and construction
technologies, if needed to minimize
impingement mortality and entrainment
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of all life stages of fish and shellfish. In
addition, you must consider whether
more stringent conditions are
reasonably necessary in accordance
with § 125.84(e).
(ii) If an owner or operator of a facility
chooses Track II, you must review the
information submitted with the
Comprehensive Demonstration Study
required in § 125.86(c)(2) and evaluate
the suitability of the proposed design
and construction technologies and
operational measures to determine
whether they will reduce both
impingement mortality and entrainment
of all life stages of fish and shellfish to
90 percent or greater of the reduction
that could be achieved through Track I.
In addition, you must review the
Verification Monitoring Plan in
§ 125.86(c)(2)(iv)(D) and require that the
proposed monitoring begin at the start
of operations of the cooling water intake
structure and continue for a sufficient
period of time to demonstrate that the
technologies and operational measures
meet the requirements in § 125.84(d)(1).
Under subsequent permits, the Director
must review the performance of the
additional and/or different technologies
or measures used and determine that
they reduce the level of adverse
environmental impact from the cooling
water intake structures to a comparable
level that the facility would achieve
were it to implement the requirements
of § 125.84(b)(1) and (2).
*
*
*
*
*
9. The suspension of 40 CFR
125.90(a), (c), and (d), and 125.91
through 125.99, published on July 9,
2007 (72 FR 37109) is lifted.
■
10. Subpart J to part 125 is revised to
read as follows:
■
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Subpart J—Requirements Applicable to
Cooling Water Intake Structures for Existing
Facilities Under Section 316(b) of the Clean
Water Act
Sec.
125.90 Purpose of this subpart.
125.91 Applicability.
125.92 Special definitions.
125.93 [Reserved]
125.94 As an owner or operator of an
existing facility, what must I do to
comply with this subpart?
125.95 Permit application and supporting
information requirements.
125.96 Monitoring requirements.
125.97 Other permit reporting and
recordkeeping requirements.
125.98 Director requirements.
125.99 [Reserved]
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Subpart J—Requirements Applicable
to Cooling Water Intake Structures for
Existing Facilities Under Section
316(b) of the Clean Water Act
§ 125.90
Purpose of this subpart.
(a) This subpart establishes the
section 316(b) requirements that apply
to cooling water intake structures at
existing facilities that are subject to this
subpart. These requirements include a
number of components. These include
standards for minimizing adverse
environmental impact associated with
the use of cooling water intake
structures and required procedures (e.g.,
permit application requirements,
information submission requirements)
for establishing the appropriate
technology requirements at certain
specified facilities as well as
monitoring, reporting, and
recordkeeping requirements to
demonstrate compliance. In
combination, these components
represent the best technology available
for minimizing adverse environmental
impact associated with the use of
cooling water intake structures at
existing facilities. These requirements
are to be established and implemented
in National Pollutant Discharge
Elimination System (NPDES) permits
issued under the Clean Water Act
(CWA).
(b) Cooling water intake structures not
subject to requirements under §§ 125.94
through 125.99 or subparts I or N of this
part must meet requirements under
section 316(b) of the CWA established
by the Director on a case-by-case, best
professional judgment (BPJ) basis.
(c) Nothing in this subpart shall be
construed to preclude or deny the right
under section 510 of the CWA of any
State or political subdivision of a State
or any interstate agency to adopt or
enforce any requirement with respect to
control or abatement of pollution that is
more stringent than required by Federal
law.
Note to § 125.90. This regulation does
not authorize take, as defined by the
Endangered Species Act, 16 U.S.C.
1532(19). The U.S. Fish and Wildlife
Service and National Marine Fisheries
Service have determined that any
impingement (including entrapment) or
entrainment of Federally-listed species
constitutes take. Such take may be
authorized pursuant to the conditions of
a permit issued under 16 U.S.C. 1539(a)
or where consistent with an Incidental
Take Statement contained in a
Biological Opinion pursuant to 16
U.S.C. 1536(o).
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§ 125.91
Applicability.
(a) The owner or operator of an
existing facility, as defined in
§ 125.92(k), is subject to the
requirements at §§ 125.94 through
125.99 if:
(1) The facility is a point source;
(2) The facility uses or proposes to use
one or more cooling water intake
structures with a cumulative design
intake flow (DIF) of greater than 2
million gallons per day (mgd) to
withdraw water from waters of the
United States; and
(3) Twenty-five percent or more of the
water the facility withdraws on an
actual intake flow basis is used
exclusively for cooling purposes.
(b) Use of a cooling water intake
structure includes obtaining cooling
water by any sort of contract or
arrangement with one or more
independent suppliers of cooling water
if the independent supplier withdraws
water from waters of the United States
but is not itself a new or existing facility
as defined in subparts I or J of this part,
except as provided in paragraphs (c) and
(d) of this section. An owner or operator
of an existing facility may not
circumvent these requirements by
creating arrangements to receive cooling
water from an entity that is not itself a
facility subject to subparts I or J of this
part.
(c) Obtaining cooling water from a
public water system, using reclaimed
water from wastewater treatment
facilities or desalination plants, or
recycling treated process wastewater
effluent as cooling water does not
constitute use of a cooling water intake
structure for purposes of this subpart.
(d) This subpart does not apply to
offshore seafood processing facilities,
offshore liquefied natural gas terminals,
and offshore oil and gas extraction
facilities that are existing facilities as
defined in § 125.92(k). The owners and
operators of such facilities must meet
requirements established by the Director
on a case-by-case, best professional
judgment (BPJ) basis.
§ 125.92
Special definitions.
In addition to the definitions
provided in 40 CFR 122.2, the following
special definitions apply to this subpart:
(a) Actual Intake Flow (AIF) means
the average volume of water withdrawn
on an annual basis by the cooling water
intake structures over the past three
years. After October 14, 2019, Actual
Intake Flow means the average volume
of water withdrawn on an annual basis
by the cooling water intake structures
over the previous five years. Actual
intake flow is measured at a location
within the cooling water intake
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structure that the Director deems
appropriate. The calculation of actual
intake flow includes days of zero flow.
AIF does not include flows associated
with emergency and fire suppression
capacity.
(b) All life stages of fish and shellfish
means eggs, larvae, juveniles, and
adults. It does not include members of
the infraclass Cirripedia in the
subphylum Crustacea (barnacles), green
mussels (Perna viridis), or zebra mussels
(Dreissena polymorpha). The Director
may determine that all life stages of fish
and shellfish does not include other
specified nuisance species.
(c) Closed-cycle recirculating system
means a system designed and properly
operated using minimized make-up and
blowdown flows withdrawn from a
water of the United States to support
contact or non-contact cooling uses
within a facility, or a system designed
to include certain impoundments. A
closed-cycle recirculating system passes
cooling water through the condenser
and other components of the cooling
system and reuses the water for cooling
multiple times.
(1) Closed-cycle recirculating system
includes a facility with wet, dry, or
hybrid cooling towers, a system of
impoundments that are not waters of the
United States, or any combination
thereof. A properly operated and
maintained closed-cycle recirculating
system withdraws new source water
(make-up water) only to replenish losses
that have occurred due to blowdown,
drift, and evaporation. If waters of the
United States are withdrawn for
purposes of replenishing losses to a
closed-cycle recirculating system other
than those due to blowdown, drift, and
evaporation from the cooling system,
the Director may determine a cooling
system is a closed-cycle recirculating
system if the facility demonstrates to the
satisfaction of the Director that make-up
water withdrawals attributed
specifically to the cooling portion of the
cooling system have been minimized.
(2) Closed-cycle recirculating system
also includes a system with
impoundments of waters of the U.S.
where the impoundment was
constructed prior to October 14, 2014
and created for the purpose of serving
as part of the cooling water system as
documented in the project purpose
statement for any required Clean Water
Act section 404 permit obtained to
construct the impoundment. In the case
of an impoundment whose construction
pre-dated the CWA requirement to
obtain a section 404 permit,
documentation of the project’s purpose
must be demonstrated to the satisfaction
of the Director. This documentation
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could be some other license or permit
obtained to lawfully construct the
impoundment for the purposes of a
cooling water system, or other such
evidence as the Director finds necessary.
For impoundments constructed in
uplands or not in waters of the United
States, no documentation of a section
404 or other permit is required. If waters
of the United States are withdrawn for
purposes of replenishing losses to a
closed-cycle recirculating system other
than those due to blowdown, drift, and
evaporation from the cooling system,
the Director may determine a cooling
system is a closed-cycle recirculating
system if the facility demonstrates to the
satisfaction of the Director that make-up
water withdrawals attributed
specifically to the cooling portion of the
cooling system have been minimized.
(d) Contact cooling water means water
used for cooling which comes into
direct contact with any raw material,
product, or byproduct. Examples of
contact cooling water may include but
are not limited to quench water at
facilities, cooling water in a cracking
unit, and cooling water directly added
to food and agricultural products
processing.
(e) Cooling water means water used
for contact or non-contact cooling,
including water used for equipment
cooling, evaporative cooling tower
makeup, and dilution of effluent heat
content. The intended use of the cooling
water is to absorb waste heat rejected
from the process or processes used, or
from auxiliary operations on the
facility’s premises. Cooling water
obtained from a public water system,
reclaimed water from wastewater
treatment facilities or desalination
plants, treated effluent from a
manufacturing facility, or cooling water
that is used in a manufacturing process
either before or after it is used for
cooling as process water, is not
considered cooling water for the
purposes of calculating the percentage
of a facility’s intake flow that is used for
cooling purposes in § 125.91(a)(3).
(f) Cooling water intake structure
means the total physical structure and
any associated constructed waterways
used to withdraw cooling water from
waters of the United States. The cooling
water intake structure extends from the
point at which water is first withdrawn
from waters of the United States up to,
and including the intake pumps.
(g) Design intake flow (DIF) means the
value assigned during the cooling water
intake structure design to the maximum
instantaneous rate of flow of water the
cooling water intake system is capable
of withdrawing from a source
waterbody. The facility’s DIF may be
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adjusted to reflect permanent changes to
the maximum capabilities of the cooling
water intake system to withdraw cooling
water, including pumps permanently
removed from service, flow limit
devices, and physical limitations of the
piping. DIF does not include values
associated with emergency and fire
suppression capacity or redundant
pumps (i.e., back-up pumps).
(h) Entrainment means any life stages
of fish and shellfish in the intake water
flow entering and passing through a
cooling water intake structure and into
a cooling water system, including the
condenser or heat exchanger.
Entrainable organisms include any
organisms potentially subject to
entrainment. For purposes of this
subpart, entrainment excludes those
organisms that are collected or retained
by a sieve with maximum opening
dimension of 0.56 inches. Examples of
sieves meeting this definition include
but are not limited to a 3⁄8 inch square
mesh, or a 1⁄2 by 1⁄4 inch mesh. A facility
must use the same mesh size when
counting entrainment as is used when
counting impingement.
(i) Entrainment mortality means death
as a result of entrainment through the
cooling water intake structure, or death
as a result of exclusion from the cooling
water intake structure by fine mesh
screens or other protective devices
intended to prevent the passage of
entrainable organisms through the
cooling water intake structure.
(j) Entrapment means the condition
where impingeable fish and shellfish
lack the means to escape the cooling
water intake. Entrapment includes but
is not limited to: Organisms caught in
the bucket of a traveling screen and
unable to reach a fish return; organisms
caught in the forebay of a cooling water
intake system without any means of
being returned to the source waterbody
without experiencing mortality; or
cooling water intake systems where the
velocities in the intake pipes or in any
channels leading to the forebay prevent
organisms from being able to return to
the source waterbody through the intake
pipe or channel.
(k) Existing facility means any facility
that commenced construction as
described in 40 CFR 122.29(b)(4) on or
before January 17, 2002 (or July 17, 2006
for an offshore oil and gas extraction
facility) and any modification of, or any
addition of a unit at such a facility. A
facility built adjacent to another facility
would be a new facility while the
original facility would remain as an
exiting facility for purposes of this
subpart. A facility cannot both be an
existing facility and a new facility as
defined at § 125.83.
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(l) Flow reduction means any
modification to a cooling water intake
structure or its operation that serves to
reduce the volume of cooling water
withdrawn. Examples include, but are
not limited to, variable speed pumps,
seasonal flow reductions, wet cooling
towers, dry cooling towers, hybrid
cooling towers, unit closures, or
substitution for withdrawals by reuse of
effluent from a nearby facility.
(m) Fragile species means those
species of fish and shellfish that are
least likely to survive any form of
impingement. For purposes of this
subpart, fragile species are defined as
those with an impingement survival rate
of less than 30 percent, including but
not limited to alewife, American shad,
Atlantic herring, Atlantic long-finned
squid, Atlantic menhaden, bay anchovy,
blueback herring, bluefish, butterfish,
gizzard shad, grey snapper, hickory
shad, menhaden, rainbow smelt, round
herring, and silver anchovy.
(n) Impingement means the
entrapment of any life stages of fish and
shellfish on the outer part of an intake
structure or against a screening device
during periods of intake water
withdrawal. For purposes of this
subpart, impingement includes those
organisms collected or retained on a
sieve with maximum distance in the
opening of 0.56 inches, and excludes
those organisms that pass through the
sieve. Examples of sieves meeting this
definition include but are not limited to
a 3⁄8 inch square mesh, or a 1⁄2 by 1⁄4
inch mesh. This definition is intended
to prevent the conversion of entrainable
organisms to counts of impingement or
impingement mortality. The owner or
operator of a facility must use a sieve
with the same mesh size when counting
entrainment as is used when counting
impingement.
(o) Impingement mortality (IM) means
death as a result of impingement.
Impingement mortality also includes
organisms removed from their natural
ecosystem and lacking the ability to
escape the cooling water intake system,
and thus subject to inevitable mortality.
(p) Independent supplier means an
entity, other than the regulated facility,
that owns and operates its own cooling
water intake structure and directly
withdraws water from waters of the
United States. The supplier provides the
cooling water to other facilities for their
use, but may itself also use a portion of
the water. An entity that provides
potable water to residential populations
(e.g., public water system) is not a
supplier for purposes of this subpart.
(q) Latent mortality means the
delayed mortality of organisms that
were initially alive upon being
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impinged or entrained but that do not
survive the delayed effects of
impingement and entrainment during
an extended holding period. Delayed
effects of impingement and entrainment
include but are not limited to
temperature change, physical stresses,
and chemical stresses.
(r) Minimize means to reduce to the
smallest amount, extent, or degree
reasonably possible.
(s) Modified traveling screen means a
traveling water screen that incorporates
measures protective of fish and
shellfish, including but not limited to:
Screens with collection buckets or
equivalent mechanisms designed to
minimize turbulence to aquatic life;
addition of a guard rail or barrier to
prevent loss of fish from the collection
system; replacement of screen panel
materials with smooth woven mesh,
drilled mesh, molded mesh, or similar
materials that protect fish from
descaling and other abrasive injury;
continuous or near-continuous rotation
of screens and operation of fish
collection equipment to ensure any
impinged organisms are recovered as
soon as practical; a low pressure wash
or gentle vacuum to remove fish prior to
any high pressure spray to remove
debris from the screens; and a fish
handling and return system with
sufficient water flow to return the fish
directly to the source water in a manner
that does not promote predation or reimpingement of the fish, or require a
large vertical drop. The Director may
approve of fish being returned to water
sources other than the original source
water, taking into account any
recommendations from the Services
with respect to endangered or
threatened species. Examples of
modified traveling screens include, but
are not limited to: Modified Ristroph
screens with a fish handling and return
system, dual flow screens with smooth
mesh, and rotary screens with fish
returns or vacuum returns.
(t) Moribund means dying; close to
death.
(u) New unit means a new ‘‘standalone’’ unit at an existing facility where
construction of the new unit begins after
October 14, 2014 and that does not
otherwise meet the definition of a new
facility at § 125.83 or is not otherwise
already subject to subpart I of this part.
A stand-alone unit is a separate unit that
is added to a facility for either the same
general industrial operation or another
purpose. A new unit may have its own
dedicated cooling water intake
structure, or the new unit may use an
existing or modified cooling water
intake structure.
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(v) Offshore velocity cap means a
velocity cap located a minimum of 800
feet from the shoreline. A velocity cap
is an open intake designed to change the
direction of water withdrawal from
vertical to horizontal, thereby creating
horizontal velocity patterns that result
in avoidance of the intake by fish and
other aquatic organisms. For purposes of
this subpart, the velocity cap must use
bar screens or otherwise exclude marine
mammals, sea turtles, and other large
aquatic organisms.
(w) Operational measure means a
modification to any operation that
serves to minimize impact to all life
stages of fish and shellfish from the
cooling water intake structure.
Examples of operational measures
include, but are not limited to, more
frequent rotation of traveling screens,
use of a low pressure wash to remove
fish prior to any high pressure spray to
remove debris, maintaining adequate
volume of water in a fish return, and
debris minimization measures such as
air sparging of intake screens and/or
other measures taken to maintain the
design intake velocity.
(x) Social benefits means the increase
in social welfare that results from taking
an action. Social benefits include
private benefits and those benefits not
taken into consideration by private
decision makers in the actions they
choose to take, including effects
occurring in the future. Benefits
valuation involves measuring the
physical and biological effects on the
environment from the actions taken.
Benefits are generally treated one or
more of three ways: A narrative
containing a qualitative discussion of
environmental effects, a quantified
analysis expressed in physical or
biological units, and a monetized
benefits analysis in which dollar values
are applied to quantified physical or
biological units. The dollar values in a
social benefits analysis are based on the
principle of willingness-to-pay (WTP),
which captures monetary benefits by
measuring what individuals are willing
to forgo in order to enjoy a particular
benefit. Willingness-to-pay for nonuse
values can be measured using benefits
transfer or a stated preference survey.
(y) Social costs means costs estimated
from the viewpoint of society, rather
than individual stakeholders. Social
cost represents the total burden imposed
on the economy; it is the sum of all
opportunity costs incurred associated
with taking actions. These opportunity
costs consist of the value lost to society
of all the goods and services that will
not be produced and consumed as a
facility complies with permit
requirements, and society reallocates
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resources away from other production
activities and towards minimizing
adverse environmental impacts.
§ 125.93
[Reserved]
emcdonald on DSK67QTVN1PROD with RULES2
§ 125.94 As an owner or operator of an
existing facility, what must I do to comply
with this subpart?
(a) Applicable Best Technology
Available for Minimizing Adverse
Environmental Impact (BTA) standards.
(1) On or after October 14, 2014, the
owner or operator of an existing facility
with a cumulative design intake flow
(DIF) greater than 2 mgd is subject to the
BTA (best technology available)
standards for impingement mortality
under paragraph (c) of this section, and
entrainment under paragraph (d) of this
section including any measures to
protect Federally-listed threatened and
endangered species and designated
critical habitat established under
paragraph (g) of this section.
(2) Prior to October 14, 2014, the
owner or operator of an existing facility
with a cumulative design intake flow
(DIF) greater than 2 mgd is subject to
site-specific impingement mortality and
entrainment requirements as
determined by the Director on a case-bycase Best Professional Judgment basis.
The Director’s BTA determination may
be based on consideration of some or all
of the factors at § 125.98(f)(2) and (3)
and the requirements of § 125.94(c). If
the Director requires additional
information to make the decision on
what BTA requirements to include in
the applicant’s permit for impingement
mortality and entrainment, the Director
should consider whether to require any
of the information at 40 CFR 122.21(r).
(3) The owner or operator of a new
unit is subject to the impingement
mortality and entrainment standards
under paragraph (e) of this section for
all cooling water intake flows used by
the new unit. The remainder of the
existing facility is subject to the
impingement mortality standard under
paragraph (c) of this section, and the
entrainment standard under paragraph
(d) of this section. The entire existing
facility including any new units is
subject to any measures to protect
Federally-listed threatened and
endangered species and designated
critical habitat established under
paragraph (g) of this section.
(b) Compliance with BTA standards.
(1) Aligning compliance deadlines for
impingement mortality and entrainment
requirements. After issuance of a final
permit that establishes the entrainment
requirements under § 125.94(d), the
owner or operator of an existing facility
must comply with the impingement
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mortality standard in § 125.94(c) as soon
as practicable. The Director may
establish interim compliance milestones
in the permit.
(2) After issuance of a final permit
establishing the entrainment
requirements under § 125.94(d), the
owner or operator of an existing facility
must comply with the entrainment
standard as soon as practicable, based
on a schedule of requirements
established by the Director. The Director
may establish interim compliance
milestones in the permit.
(3) The owner or operator of a new
unit at an existing facility must comply
with the BTA standards at § 125.94(e)
with respect to the new unit upon
commencement of the new unit’s
operation.
(c) BTA Standards for Impingement
Mortality. The owner or operator of an
existing facility must comply with one
of the alternatives in paragraphs (c)(1)
through (7) of this section, except as
provided in paragraphs (c)(11) or (12) of
this section, when approved by the
Director. In addition, a facility may also
be subject to the requirements of
paragraphs (c)(8), (c)(9), or (g) of this
section if the Director requires such
additional measures.
(1) Closed-cycle recirculating system.
A facility must operate a closed-cycle
recirculating system as defined at
§ 125.92(c). In addition, you must
monitor the actual intake flows at a
minimum frequency of daily. The
monitoring must be representative of
normal operating conditions, and must
include measuring cooling water
withdrawals, make-up water, and blow
down volume. In lieu of daily intake
flow monitoring, you may monitor your
cycles of concentration at a minimum
frequency of daily; or
(2) 0.5 Feet Per Second ThroughScreen Design Velocity. A facility must
operate a cooling water intake structure
that has a maximum design throughscreen intake velocity of 0.5 feet per
second. The owner or operator of the
facility must submit information to the
Director that demonstrates that the
maximum design intake velocity as
water passes through the structural
components of a screen measured
perpendicular to the screen mesh does
not exceed 0.5 feet per second. The
maximum velocity must be achieved
under all conditions, including during
minimum ambient source water surface
elevations (based on BPJ using
hydrological data) and during periods of
maximum head loss across the screens
or other devices during normal
operation of the intake structure; or
(3) 0.5 Feet Per Second ThroughScreen Actual Velocity. A facility must
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operate a cooling water intake structure
that has a maximum through-screen
intake velocity of 0.5 feet per second.
The owner or operator of the facility
must submit information to the Director
that demonstrates that the maximum
intake velocity as water passes through
the structural components of a screen
measured perpendicular to the screen
mesh does not exceed 0.5 feet per
second. The maximum velocity must be
achieved under all conditions,
including during minimum ambient
source water surface elevations (based
on best professional judgment using
hydrological data) and during periods of
maximum head loss across the screens
or other devices during normal
operation of the intake structure. The
Director may authorize the owner or
operator of the facility to exceed the 0.5
fps velocity at an intake for brief periods
for the purpose of maintaining the
cooling water intake system, such as
backwashing the screen face. If the
intake does not have a screen, the
maximum intake velocity perpendicular
to the opening of the intake must not
exceed 0.5 feet per second during
minimum ambient source water surface
elevations. In addition, you must
monitor the velocity at the screen at a
minimum frequency of daily. In lieu of
velocity monitoring at the screen face,
you may calculate the through-screen
velocity using water flow, water depth,
and the screen open areas; or
(4) Existing offshore velocity cap. A
facility must operate an existing
offshore velocity cap as defined at
§ 125.92(v) that was installed on or
before October 14, 2014. Offshore
velocity caps installed after October 14,
2014 must make either a demonstration
under paragraph (c)(6) of this section or
meet the performance standard under
paragraph (c)(7) of this section. In
addition, you must monitor your intake
flow at a minimum frequency of daily;
or
(5) Modified traveling screens. A
facility must operate a modified
traveling screen that the Director
determines meets the definition at
§ 125.92(s) and that, after review of the
information required in the
impingement technology performance
optimization study at 40 CFR
122.21(r)(6)(i), the Director determines
is the best technology available for
impingement reduction at the site. As
the basis for the Director’s
determination, the owner or operator of
the facility must demonstrate the
technology is or will be optimized to
minimize impingement mortality of all
non-fragile species. The Director must
include verifiable and enforceable
permit conditions that ensure the
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technology will perform as
demonstrated; or
(6) Systems of technologies as the
BTA for impingement mortality. A
facility must operate a system of
technologies, management practices,
and operational measures, that, after
review of the information required in
the impingement technology
performance optimization study at 40
CFR 122.21(r)(6)(ii), the Director
determines is the best technology
available for impingement reduction at
your cooling water intake structures. As
the basis for the Director’s
determination, the owner or operator of
the facility must demonstrate the system
of technology has been optimized to
minimize impingement mortality of all
non-fragile species. In addition, the
Director’s decision will be informed by
comparing the impingement mortality
performance data under 40 CFR
122.21(r)(6)(ii)(D) to the impingement
mortality performance standard that
would otherwise apply under paragraph
(c)(7) of this section. The Director must
include verifiable and enforceable
permit conditions that ensure the
system of technologies will perform as
demonstrated; or
(7) Impingement mortality
performance standard. A facility must
achieve a 12-month impingement
mortality performance standard of all
life stages of fish and shellfish of no
more than 24 percent mortality,
including latent mortality, for all nonfragile species together that are collected
or retained in a sieve with maximum
opening dimension of 0.56 inches and
kept for a holding period of 18 to 96
hours. The Director may, however,
prescribe an alternative holding period.
You must conduct biological monitoring
at a minimum frequency of monthly to
demonstrate your impingement
mortality performance. Each month, you
must use all of the monitoring data
collected during the previous 12 months
to calculate the 12-month survival
percentage. The 12-month impingement
mortality performance standard is the
total number of fish killed divided by
the total number of fish impinged over
the course of the entire 12 months. The
owner or operator of the facility must
choose whether to demonstrate
compliance with this requirement for
the entire facility, or for each individual
cooling water intake structure for which
this paragraph (c)(7) is the selected
impingement mortality requirement.
(8) Additional measures for shellfish.
The owner or operator must comply
with any additional measures, such as
seasonal deployment of barrier nets,
established by the Director to protect
shellfish.
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(9) Additional measures for other
species. The owner or operator must
comply with any additional measures,
established by the Director, to protect
fragile species.
(10) Reuse of other water for cooling
purposes. This impingement mortality
standard does not apply to that portion
of cooling water that is process water,
gray water, waste water, reclaimed
water, or other waters reused as cooling
water in lieu of water obtained by
marine, estuarine, or freshwater intakes.
(11) De minimis rate of impingement.
In limited circumstances, rates of
impingement may be so low at a facility
that additional impingement controls
may not be justified. The Director, based
on review of site-specific data submitted
under 40 CFR 122.21(r), may conclude
that the documented rate of
impingement at the cooling water intake
is so low that no additional controls are
warranted. For threatened or
endangered species, all unauthorized
take is prohibited by the Endangered
Species Act of 1973 (16 U.S.C. 1531 et
seq.). Notice of a determination that no
additional impingement controls are
warranted must be included in the draft
or proposed permit and the Director’s
response to all comments on this
determination must be included in the
record for the final permit.
(12) Low capacity utilization power
generating units. If an existing facility
has a cooling water intake structure
used for one or more existing electric
generating units, each with an annual
average capacity utilization rate of less
than 8 percent averaged over a 24month block contiguous period, the
owner or operator may request the
Director consider less stringent
requirements for impingement mortality
for that cooling water intake structure.
The Director may, based on review of
site-specific data concerning cooling
water system data under 40 CFR
122.21(r)(5), establish the BTA
standards for impingement mortality for
that cooling water intake structure that
are less stringent than paragraphs (c)(1)
through (7) of this section.
(d) BTA standards for entrainment for
existing facilities. The Director must
establish BTA standards for entrainment
for each intake on a site-specific basis.
These standards must reflect the
Director’s determination of the
maximum reduction in entrainment
warranted after consideration of the
relevant factors as specified in § 125.98.
The Director may also require periodic
reporting on your progress towards
installation and operation of sitespecific entrainment controls. These
reports may include updates on
planning, design, and construction or
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other appropriate topics as required by
the Director. If the Director determines
that the site-specific BTA standard for
entrainment under this paragraph
requires performance equivalent to a
closed-cycle recirculating system as
defined at § 125.92(c), then under
§ 125.94(c)(1) your facility will comply
with the impingement mortality
standard for that intake.
(e) BTA standards for impingement
mortality and entrainment for new units
at existing facilities. The owner or
operator of a new unit at an existing
facility must achieve the impingement
mortality and entrainment standards
provided in either paragraph (e)(1) or (2)
of this section, except as provided in
paragraph (e)(4) of this section, for each
cooling water intake structure used to
provide cooling water to the new unit.
(1) Requirements for new units. The
owner or operator of the facility must
reduce the design intake flow for the
new unit, at a minimum, to a level
commensurate with that which can be
attained by the use of a closed-cycle
recirculating system for the same level
of cooling for the new unit.
(2) Alternative requirements for new
units. The owner or operator of a new
unit at an existing facility must
demonstrate to the Director that the
technologies and operational measures
employed will reduce the level of
adverse environmental impact from any
cooling water intake structure used to
supply cooling water to the new unit to
a comparable level to that which would
be achieved under § 125.94(e)(1). This
demonstration must include a showing
that the entrainment reduction is
equivalent to 90 percent or greater of the
reduction that could be achieved
through compliance with § 125.94(e)(1).
In addition this demonstration must
include a showing that the impacts to
fish and shellfish, including important
forage and predator species, within the
watershed will be comparable to those
which would result under the
requirements of § 125.94(e)(1).
(3) This standard does not apply to:
(i) Process water, gray water, waste
water, reclaimed water, or other waters
reused as cooling water in lieu of water
obtained by marine, estuarine, or
freshwater intakes;
(ii) Cooling water used by
manufacturing facilities for contact
cooling purposes;
(iii) Portions of those water
withdrawals for auxiliary plant cooling
uses comprising less than two mgd of
the facility’s flow; and
(iv) Any quantity of emergency backup water flows.
(4) The owner or operator of a facility
must comply with any alternative
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requirements established by the Director
pursuant to § 125.98(b)(7).
(5) For cooling water flows excluded
by paragraph (e)(3) of this section, the
Director may establish additional BTA
standards for impingement mortality
and entrainment on a site-specific basis.
(f) Nuclear facilities. If the owner or
operator of a nuclear facility
demonstrates to the Director, upon the
Director’s consultation with the Nuclear
Regulatory Commission, the Department
of Energy, or the Naval Nuclear
Propulsion Program, that compliance
with this subpart would result in a
conflict with a safety requirement
established by the Commission, the
Department, or the Program, the
Director must make a site-specific
determination of best technology
available for minimizing adverse
environmental impact that would not
result in a conflict with the
Commission’s, the Department’s, or the
Program’s safety requirement.
(g) Additional measures to protect
Federally-listed threatened and
endangered species and designated
critical habitat. The Director may
establish in the permit additional
control measures, monitoring
requirements, and reporting
requirements that are designed to
minimize incidental take, reduce or
remove more than minor detrimental
effects to Federally-listed species and
designated critical habitat, or avoid
jeopardizing Federally-listed species or
destroying or adversely modifying
designated critical habitat (e.g., prey
base). Such control measures,
monitoring requirements, and reporting
requirements may include measures or
requirements identified by an
appropriate Field Office of the U.S. Fish
and Wildlife Service and/or Regional
Office of the National Marine Fisheries
Service during the 60 day review period
pursuant to § 125.98(h) or the public
notice and comment period pursuant to
40 CFR 124.10. Where established in the
permit by the Director, the owner or
operator must implement any such
requirements.
(h) Interim BTA requirements. An
owner or operator of a facility may be
subject to interim BTA requirements
established by the Director in the permit
on a site-specific basis.
(i) More stringent standards. The
Director must establish more stringent
requirements as best technology
available for minimizing adverse
environmental impact if the Director
determines that compliance with the
applicable requirements of this section
would not meet the requirements of
applicable State or Tribal law, including
compliance with applicable water
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quality standards (including designated
uses, criteria, and antidegradation
requirements).
(j) The owner or operator of a facility
subject to this subpart must:
(1) Submit and retain permit
application and supporting information
as specified in § 125.95;
(2) Conduct compliance monitoring as
specified in § 125.96; and
(3) Report information and data and
keep records as specified in § 125.97.
§ 125.95 Permit application and supporting
information requirements.
(a) Permit application submittal
timeframe for existing facilities. (1) The
owner or operator of a facility subject to
this subpart whose currently effective
permit expires after July 14, 2018, must
submit to the Director the information
required in the applicable provisions of
40 CFR 122.21(r) when applying for a
subsequent permit (consistent with the
owner or operator’s duty to reapply
pursuant to 40 CFR 122.21(d)).
(2) The owner or operator of a facility
subject to this subpart whose currently
effective permit expires prior to or on
July 14, 2018, may request the Director
to establish an alternate schedule for the
submission of the information required
in 40 CFR 122.21(r) when applying for
a subsequent permit (consistent with the
owner or operator’s duty to reapply
pursuant to 40 CFR 122.21(d)). If the
owner or operator of the facility
demonstrates that it could not develop
the required information by the
applicable date for submission, the
Director must establish an alternate
schedule for submission of the required
information.
(3) The Director may waive some or
all of the information requirements of 40
CFR 122.21(r) if the intake is located in
a manmade lake or reservoir and the
fisheries are stocked and managed by a
State or Federal natural resources
agency or the equivalent. If the
manmade lake or reservoir contains
Federally-listed threatened and
endangered species, or is designated
critical habitat, such a waiver shall not
be granted.
(b) Permit application submittal
timeframe for new units. For the owner
or operator of any new unit at an
existing facility subject to this subpart:
(1) You must submit the information
required in 40 CFR 122.21(r) for the new
unit to the Director no later than 180
days before the planned commencement
of cooling water withdrawals for the
operation of the new unit. If you have
already submitted the required
information in your previous permit
application, you may choose to submit
an update to the required information.
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48435
(2) The owner or operator is
encouraged to submit their permit
applications well in advance of the 180
day requirement to avoid delay.
(c) Permit applications. After the
initial submission of the 40 CFR
122.21(r) permit application studies
after October 14, 2014, the owner or
operator of a facility may, in subsequent
permit applications, request to reduce
the information required, if conditions
at the facility and in the waterbody
remain substantially unchanged since
the previous application so long as the
relevant previously submitted
information remains representative of
current source water, intake structure,
cooling water system, and operating
conditions. Any habitat designated as
critical or species listed as threatened or
endangered after issuance of the current
permit whose range of habitat or
designated critical habit includes waters
where a facility intake is located
constitutes potential for a substantial
change that must be addressed by the
owner/operator in subsequent permit
applications, unless the facility received
an exemption pursuant to 16 U.S.C.
1536(o) or a permit pursuant to 16
U.S.C. 1539(a) or there is no reasonable
expectation of take. The owner or
operator of a facility must submit its
request for reduced cooling water intake
structure and waterbody application
information to the Director at least two
years and six months prior to the
expiration of its NPDES permit. The
owner or operator’s request must
identify each element in this subsection
that it determines has not substantially
changed since the previous permit
application and the basis for the
determination. The Director has the
discretion to accept or reject any part of
the request.
(d) The Director has the discretion to
request additional information to
supplement the permit application,
including a request to inspect a facility.
(e) Permit application records. The
owner or operator of a facility must keep
records of all submissions that are part
of its permit application until the
subsequent permit is issued to
document compliance with the
requirements of this section. If the
Director approves a request for reduced
permit application studies under
§ 125.95(a) or (c) or § 125.98(g), the
owner or operator of a facility must keep
records of all submissions that are part
of the previous permit application until
the subsequent permit is issued.
(f) In addition, in developing its
permit application, the owner or
operator of an existing facility or new
unit at an existing facility must, based
on readily available information at the
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time of the permit application, instead
of the information required at
§ 122.21(r)(4)(vi) of this chapter identify
all Federally-listed threatened and
endangered species and/or designated
critical habitat that are or may be
present in the action area.
(g) Certification. The owner or
operator of a facility must certify that its
permit application is true, accurate and
complete pursuant to § 122.22(d) of this
chapter.
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§ 125.96
Monitoring requirements.
(a) Monitoring requirements for
impingement mortality for existing
facilities. The Director may establish
monitoring requirements in addition to
those specified at § 125.94(c), including,
for example, biological monitoring,
intake velocity and flow measurements.
If the Director establishes such
monitoring, the specific protocols will
be determined by the Director.
(b) Monitoring requirements for
entrainment for existing facilities.
Monitoring requirements for
entrainment will be determined by the
Director on a site-specific basis, as
appropriate, to meet requirements under
§ 125.94(d).
(c) Additional monitoring
requirements for existing facilities. The
Director may require additional
monitoring for impingement or
entrainment including, but not limited
to, the following:
(1) The Director may require
additional monitoring if there are
changes in operating conditions at the
facility or in the source waterbody that
warrant a re-examination of the
operational conditions identified at 40
CFR 122.21(r).
(2) The Director may require
additional monitoring for species not
subject to the BTA requirements for
impingement mortality at § 125.95(c).
Such monitoring requirements will be
determined by the Director on a sitespecific basis.
(d) Monitoring requirements for new
units at existing facilities. Monitoring is
required to demonstrate compliance
with the requirements of § 125.94(e).
(1) The Director may establish
monitoring requirements for
impingement, impingement mortality,
and entrainment of the commercial,
recreational, and forage base fish and
shellfish species identified in the
Source Water Baseline Biological
Characterization data required by 40
CFR 122.21(r)(4). Monitoring methods
used must be consistent with those used
for the Source Water Baseline Biological
Characterization at 40 CFR 122.21(r)(4).
If the Director establishes such
monitoring requirements, the frequency
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of monitoring and specific protocols
will be determined by the Director.
(2) If your facility is subject to the
requirements of § 125.94(e)(1) or (2), the
frequency of flow monitoring and
velocity monitoring must be daily and
must be representative of normal
operating conditions. Flow monitoring
must include measuring cooling water
withdrawals, make-up water, and
blowdown volume. The Director may
require additional monitoring necessary
to demonstrate compliance with
§ 125.94(e).
(3) If your facility is subject to the
requirements of § 125.94(e)(2), you must
monitor to demonstrate achievement of
reductions commensurate with a closedcycle recirculating system. You must
monitor entrainable organisms at a
proximity to the intake that is
representative of the entrainable
organisms in the absence of the intake
structure. You must also monitor the
latent entrainment mortality in front of
the intake structure. Mortality after
passing the cooling water intake
structure must be counted as 100
percent mortality unless you have
demonstrated to the approval of the
Director that the mortality for each
species is less than 100 percent.
Monitoring must be representative of
the cooling water intake when the
structure is in operation. In addition,
sufficient samples must be collected to
allow for calculation of annual average
entrainment levels of all life stages of
fish and shellfish. Specific monitoring
protocols and frequency of monitoring
will be determined by the Director. You
must follow the monitoring frequencies
identified by the Director for at least two
years after the initial permit issuance.
After that time, the Director may
approve a request for less frequent
monitoring in the remaining years of the
permit term and when a subsequent
permit is reissued. The monitoring must
measure the total count of entrainable
organisms or density of organisms,
unless the Director approves of a
different metric for such measurements.
In addition, you must monitor the AIF
for each intake. The AIF must be
measured at the same time as the
samples of entrainable organisms are
collected. The Director may require
additional monitoring necessary to
demonstrate compliance with
§ 125.94(e).
(4) The Director may require
additional monitoring for impingement
or entrainment at the cooling water
intake structure used by a new unit
including, but not limited to, the
following:
(i) The Director may require
additional monitoring if there are
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changes in operating conditions at the
facility or in the source waterbody that
warrant a re-examination of the
operational conditions identified at 40
CFR 122.21(r).
(ii) The Director may require
additional monitoring for species not
subject to the BTA requirements for
impingement mortality at § 125.95(c).
Such monitoring requirements will be
determined by the Director on a sitespecific basis.
(e) Visual or remote inspections. You
must either conduct visual inspections
or employ remote monitoring devices
during the period the cooling water
intake structure is in operation. You
must conduct such inspections at least
weekly to ensure that any technologies
operated to comply with § 125.94 are
maintained and operated to function as
designed including those installed to
protect Federally-listed threatened or
endangered species or designated
critical habitat. The Director may
establish alternative procedures if this
requirement is not feasible (e.g., an
offshore intake, velocity cap, or during
periods of inclement weather).
(f) Request for reduced monitoring.
For facilities that are subject to
§ 125.94(c)(7) and where the facility’s
cooling water intake structure does not
directly or indirectly affect Federallylisted threatened and endangered
species, or designated critical habitat,
the owner or operator of the facility may
request the Director to reduce
monitoring requirements after the first
full permit term in which these
monitoring requirements are
implemented, on the condition that the
results of the monitoring to date
demonstrate that the owner or operator
of the facility has consistently operated
the intake as designed and is meeting
the requirements of § 125.94(c).
(g) Additional monitoring related to
Federally-listed threatened and
endangered species and designated
critical habitat at existing facilities.
Where the Director requires additional
measures to protect Federally-listed
threatened or endangered species or
designated critical habitat pursuant to
§ 125.94(g), the Director shall require
monitoring associated with those
measures.
§ 125.97 Other permit reporting and
recordkeeping requirements.
The owner or operator of an existing
facility subject to this subpart is
required to submit to the Director the
following information:
(a) Monitoring reports. Discharge
Monitoring Reports (DMRs) (or
equivalent State reports) and results of
all monitoring, demonstrations, and
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other information required by the
permit sufficient to determine
compliance with the permit conditions
and requirements established under
§ 125.94.
(b) Status reports. Any reports
required by the Director under § 125.94.
(c) Annual certification statement and
report. An annual certification
statement signed by the responsible
corporate officer as defined in § 122.22
of this chapter subject to the following:
(1) If the information contained in the
previous year’s annual certification is
still pertinent, you may simply state as
such in a letter to the Director and the
letter, along with any applicable data
submission requirements specified in
this section shall constitute the annual
certification.
(2) If you have substantially modified
operation of any unit at your facility
that impacts cooling water withdrawals
or operation of your cooling water
intake structures, you must provide a
summary of those changes in the report.
In addition, you must submit revisions
to the information required at
§ 122.21(r) of this chapter in your next
permit application.
(d) Permit reporting records retention.
Records of all submissions that are part
of the permit reporting requirements of
this section must be retained until the
subsequent permit is issued. In
addition, the Director may require
supplemental recordkeeping such as
compliance monitoring under § 125.96,
supplemental data collection under 40
CFR 122.21, additional monitoring or
data collection under § 125.95.
(e) Reporting. The Director has the
discretion to require additional
reporting when necessary to establish
permit compliance and may provide for
periodic inspection of the facility. The
Director may require additional
reporting including but not limited to
the records required under § 125.97(d).
(f) Records of Director’s
Determination of BTA for Entrainment.
All records supporting the Director’s
Determination of BTA for Entrainment
under § 125.98(f) or (g) must be retained
until such time as the Director revises
the Determination of BTA for
Entrainment in the permit.
(g) Additional reporting requirements
related to Federally-listed threatened
and endangered species or designated
critical habitat. Where the Director
requires additional measures to protect
Federally-listed threatened or
endangered species or critical habitat
pursuant to § 125.94(g), the Director
shall require reporting associated with
those measures.
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§ 125.98
Director requirements.
(a) Permit application. The Director
must review the materials submitted by
the applicant under 40 CFR 122.21(r) for
completeness pursuant to 40 CFR
122.21(e) at the time of initial permit
application and any application for a
subsequent permit.
(b) Permitting requirements. Section
316(b) requirements are implemented
through an NPDES permit. Based on the
information submitted in the permit
application, the Director must
determine the requirements and
conditions to include in the permit.
(1) Such permits, including permits
with alternative requirements under
paragraph (b)(7) of this section, must
include the following language as a
permit condition: ‘‘Nothing in this
permit authorizes take for the purposes
of a facility’s compliance with the
Endangered Species Act.’’
(2) In the case of any permit issued
after July 14, 2018, at a minimum, the
permit must include conditions to
implement and ensure compliance with
the impingement mortality standard at
§ 125.94(c) and the entrainment
standard at § 125.94(d), including any
measures to protect Federally-listed
threatened and endangered species and
designated critical habitat required by
the Director. In addition, the permit
must include conditions, management
practices and operational measures
necessary to ensure proper operation of
any technology used to comply with the
impingement mortality standard at
§ 125.94(c) and the entrainment
standard at § 125.94(d). Pursuant to
§ 125.94(g), the permit may include
additional control measures, monitoring
requirements, and reporting
requirements that are designed to
minimize incidental take, reduce or
remove more than minor detrimental
effects to Federally-listed species and
designated critical habitat, or avoid
jeopardizing Federally-listed species or
destroying or adversely modifying
designated critical habitat (e.g. prey
base). Such control measures,
monitoring requirements, and reporting
requirements may include measures or
requirements identified by the U.S. Fish
and Wildlife Service and/or the
National Marine Fisheries Service
during the 60 day review period
pursuant to § 125.98(h) or the public
notice and comment period pursuant to
40 CFR 124.10. The Director may
include additional permit requirements
if:
(i) Based on information submitted to
the Director by any fishery management
agency or other relevant information,
there are migratory or sport or
commercial species subject to
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48437
entrainment that may be directly or
indirectly affected by the cooling water
intake structure; or
(ii) It is determined by the Director,
based on information submitted by any
fishery management agencies or other
relevant information, that operation of
the facility, after meeting the
entrainment standard of this section,
would still result in undesirable
cumulative stressors to Federally-listed
and proposed, threatened and
endangered species, and designated and
proposed critical habitat.
(3) At a minimum, the permit must
require the permittee to monitor as
required at §§ 125.94 and 125.96.
(4) At a minimum, the permit must
require the permittee to report and keep
the records specified at § 125.97.
(5) After October 14, 2014, in the case
of any permit issued before July 14,
2018 for which the Director, pursuant to
§ 125.95(a)(2), has established an
alternate schedule for submission of the
information required by 40 CFR
122.21(r), the Director may include
permit conditions to ensure that, for any
subsequent permit, the Director will
have all the information required by 40
CFR 122.21(r) necessary to establish
impingement mortality and entrainment
BTA requirements under § 125.94(c) and
(d). In addition, the Director must
establish interim BTA requirements in
the permit based on the Director’s best
professional judgment on a site-specific
basis in accordance with § 125.90(b) and
40 CFR 401.14.
(6) In the case of any permit issued
after October 14, 2014, and applied for
before October 14, 2014, the Director
may include permit conditions to
ensure that the Director will have all the
information under 40 CFR 122.21(r)
necessary to establish impingement
mortality and entrainment BTA
requirements under § 125.94(c) and (d)
for the subsequent permit. The Director
must establish interim BTA
requirements in the permit on a sitespecific basis based on the Director’s
best professional judgment in
accordance with § 125.90(b) and 40 CFR
401.14.
(7) For new units at existing facilities,
the Director may establish alternative
requirements if the data specific to the
facility indicate that compliance with
the requirements of § 125.94(e)(1) or (2)
for each new unit would result in
compliance costs wholly out of
proportion to the costs EPA considered
in establishing the requirements at
issue, or would result in significant
adverse impacts on local air quality,
significant adverse impacts on local
water resources other than impingement
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or entrainment, or significant adverse
impacts on local energy markets:
(i) The alternative requirements must
achieve a level of performance as close
as practicable to the requirements of
§ 125.94(e)(1);
(ii) The alternative requirements must
ensure compliance with these
regulations, other provisions of the
Clean Water Act, and State and Tribal
law;
(iii) The burden is on the owner or
operator of the facility requesting the
alternative requirement to demonstrate
that alternative requirements should be
authorized for the new unit.
(8) The Director may require
additional measures such as seasonal
deployment of barrier nets, to protect
shellfish.
(c) Compliance schedule. When the
Director establishes a schedule of
requirements under § 125.94(b), the
schedule must provide for compliance
with § 125.94(c) and (d) as soon as
practicable. When establishing a
schedule for electric power generating
facilities, the Director should consider
measures to maintain adequate energy
reliability and necessary grid reserve
capacity during any facility outage.
These may include establishing a
staggered schedule for multiple facilities
serving the same localities. The Director
may confer with independent system
operators and state public utility
regulatory agencies when establishing a
schedule for electric power generating
facilities. The Director may determine
that extenuating circumstances (e.g.,
lengthy scheduled outages, future
production schedules) warrant
establishing a different compliance date
for any manufacturing facility.
(d) Supplemental Technologies and
Monitoring. The Director may require
additional technologies for protection of
fragile species, and may require
additional monitoring of species of fish
and shellfish not already required under
§ 125.95(c). The Director may consider
data submitted by other interested
parties. The Director may also require
additional study and monitoring if a
threatened or endangered species has
been identified in the vicinity of the
intake.
(e) Impingement technology
performance optimization study. The
owner or operator of a facility that
chooses to comply with § 125.94(c)(5) or
(6) must demonstrate in its impingement
technology performance optimization
study that the operation of its
impingement reduction technology has
been optimized to minimize
impingement mortality of non-fragile
species. The Director may request
further data collection and information
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as part of the impingement technology
performance optimization study,
including extending the study period
beyond two years. The Director may
also consider previously collected
biological data and performance reviews
as part of the study. The Director must
include in the permit verifiable and
enforceable permit conditions that
ensure the modified traveling screens or
other systems of technologies will
perform as demonstrated. The Director
may waive all or part of the
impingement technology performance
optimization study at 40
CFR122.21(r)(6) after the first permit
cycle wherein the permittee is deemed
in compliance with § 125.94(c).
(f) Site-specific entrainment
requirements. The Director must
establish site-specific requirements for
entrainment after reviewing the
information submitted under 40 CFR
122.21(r) and § 125.95. These
entrainment requirements must reflect
the Director’s determination of the
maximum reduction in entrainment
warranted after consideration of factors
relevant for determining the best
technology available for minimizing
adverse environmental impact at each
facility. These entrainment
requirements may also reflect any
control measures to reduce entrainment
of Federally-listed threatened and
endangered species and designated
critical habitat (e.g. prey base). The
Director may reject an otherwise
available technology as a basis for
entrainment requirements if the Director
determines there are unacceptable
adverse impacts including
impingement, entrainment, or other
adverse effects to Federally-listed
threatened or endangered species or
designated critical habitat. Prior to any
permit reissuance after July 14, 2018,
the Director must review the
performance of the facility’s installed
entrainment technology to determine
whether it continues to meet the
requirements of § 125.94(d).
(1) The Director must provide a
written explanation of the proposed
entrainment determination in the fact
sheet or statement of basis for the
proposed permit under 40 CFR 124.7 or
124.8. The written explanation must
describe why the Director has rejected
any entrainment control technologies or
measures that perform better than the
selected technologies or measures, and
must reflect consideration of all
reasonable attempts to mitigate any
adverse impacts of otherwise available
better performing entrainment
technologies.
(2) The proposed determination in the
fact sheet or statement of basis must be
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Fmt 4701
Sfmt 4700
based on consideration of any
additional information required by the
Director at § 125.98(i) and the following
factors listed below. The weight given to
each factor is within the Director’s
discretion based upon the
circumstances of each facility.
(i) Numbers and types of organisms
entrained, including, specifically, the
numbers and species (or lowest
taxonomic classification possible) of
Federally-listed, threatened and
endangered species, and designated
critical habitat (e.g., prey base);
(ii) Impact of changes in particulate
emissions or other pollutants associated
with entrainment technologies;
(iii) Land availability inasmuch as it
relates to the feasibility of entrainment
technology;
(iv) Remaining useful plant life; and
(v) Quantified and qualitative social
benefits and costs of available
entrainment technologies when such
information on both benefits and costs
is of sufficient rigor to make a decision.
(3) The proposed determination in the
fact sheet or statement of basis may be
based on consideration of the following
factors to the extent the applicant
submitted information under 40 CFR
122.21(r) on these factors:
(i) Entrainment impacts on the
waterbody;
(ii) Thermal discharge impacts;
(iii) Credit for reductions in flow
associated with the retirement of units
occurring within the ten years preceding
October 14, 2014;
(iv) Impacts on the reliability of
energy delivery within the immediate
area;
(v) Impacts on water consumption;
and
(vi) Availability of process water, gray
water, waste water, reclaimed water, or
other waters of appropriate quantity and
quality for reuse as cooling water.
(4) If all technologies considered have
social costs not justified by the social
benefits, or have unacceptable adverse
impacts that cannot be mitigated, the
Director may determine that no
additional control requirements are
necessary beyond what the facility is
already doing. The Director may reject
an otherwise available technology as a
BTA standard for entrainment if the
social costs are not justified by the
social benefits.
(g) Ongoing permitting proceedings.
In the case of permit proceedings begun
prior to October 14, 2014 whenever the
Director has determined that the
information already submitted by the
owner or operator of the facility is
sufficient, the Director may proceed
with a determination of BTA standards
for impingement mortality and
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emcdonald on DSK67QTVN1PROD with RULES2
entrainment without requiring the
owner or operator of the facility to
submit the information required in 40
CFR 122.21(r). The Director’s BTA
determination may be based on some or
all of the factors in paragraphs (f)(2) and
(3) of this section and the BTA
standards for impingement mortality at
§ 125.95(c). In making the decision on
whether to require additional
information from the applicant, and
what BTA requirements to include in
the applicant’s permit for impingement
mortality and site-specific entrainment,
the Director should consider whether
any of the information at 40 CFR
122.21(r) is necessary.
(h) The Director must transmit all
permit applications for facilities subject
to this subpart to the appropriate Field
Office of the U.S. Fish and Wildlife
Service and/or Regional Office of the
National Marine Fisheries Service upon
receipt for a 60 day review prior to
public notice of the draft or proposed
permit. The Director shall provide the
public notice and an opportunity to
VerDate Mar<15>2010
18:30 Aug 14, 2014
Jkt 232001
comment as required under 40 CFR
124.10 and must submit a copy of the
fact sheet or statement of basis (for EPAissued permits), the permit application
(if any) and the draft permit (if any) to
the appropriate Field Office of the. Fish
and Wildlife Service and/or Regional
Office of the National Marine Fisheries
Service. This includes notice of specific
cooling water intake structure
requirements at § 124.10(d)(1)(ix) of this
chapter, notice of the draft permit, and
any specific information the Director
has about threatened or endangered
species and critical habitat that are or
may be present in the action area,
including any proposed control
measures and monitoring and reporting
requirements for such species and
habitat.
(i) Additional information. In
implementing the Director’s
responsibilities under the provisions of
this subpart, the Director is authorized
to inspect the facility and to request
additional information needed by the
Director for determining permit
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Sfmt 9990
48439
conditions and requirements, including
any additional information from the
facility recommended by the Services
upon review of the permit application
under paragraph (h) of this section.
(j) Nothing in this subpart authorizes
the take, as defined at 16 U.S.C.
1532(19), of threatened or endangered
species of fish or wildlife. Such take is
prohibited under the Endangered
Species Act unless it is exempted
pursuant to 16 U.S.C. 1536(o) or
permitted pursuant to 16 U.S.C. 1539(a).
Absent such exemption or permit, any
facility operating under the authority of
this regulation must not take threatened
or endangered wildlife.
(k) The Director must submit at least
annually to the appropriate EPA
Regional Office facilities’ annual reports
submitted pursuant to § 125.97(g), for
compilation and transmittal to the
Services.
§ 125.99
[Reserved]
[FR Doc. 2014–12164 Filed 8–14–14; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 79, Number 158 (Friday, August 15, 2014)]
[Rules and Regulations]
[Pages 48299-48439]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12164]
[[Page 48299]]
Vol. 79
Friday,
No. 158
August 15, 2014
Part II
Environmental Protection Agency
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40 CFR Parts 122 and 125
National Pollutant Discharge Elimination System--Final Regulations To
Establish Requirements for Cooling Water Intake Structures at Existing
Facilities and Amend Requirements at Phase I Facilities; Final Rule
Federal Register / Vol. 79 , No. 158 / Friday, August 15, 2014 /
Rules and Regulations
[[Page 48300]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 125
[EPA-HQ-OW-2008-0667, FRL-9817-3]
RIN 2040-AE95
National Pollutant Discharge Elimination System--Final
Regulations To Establish Requirements for Cooling Water Intake
Structures at Existing Facilities and Amend Requirements at Phase I
Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this action is to reduce impingement and
entrainment of fish and other aquatic organisms at cooling water intake
structures used by certain existing power generation and manufacturing
facilities for the withdrawal of cooling water from waters of the
United States. This rule establishes requirements under section 316(b)
of the Clean Water Act (CWA) for existing power generating facilities
and existing manufacturing and industrial facilities that are designed
to withdraw more than 2 million gallons per day (mgd) of water from
waters of the United States and use at least 25 percent of the water
they withdraw exclusively for cooling purposes. These national
requirements, which will be implemented through National Pollutant
Discharge Elimination System (NPDES) permits, apply to the location,
design, construction, and capacity of cooling water intake structures
(CWIS) at regulated facilities and provide requirements that reflect
the best technology available (BTA) for minimizing adverse
environmental impact. On April 20, 2011, EPA published a proposed rule
that included several options for addressing these impacts.
Subsequently, EPA published two Notices of Data Availability (NODA), on
June 11, 2012 and June 12, 2012, that further clarified EPA's proposed
approach. This final rule also responds to judicial remand of aspects
of the previously promulgated Phase II and Phase III section 316(b)
rules. In addition, EPA is also responding to an earlier judicial
decision by removing from the previously promulgated Phase I new
facility rule a restoration-based compliance alternative and the
associated monitoring and demonstration requirements.
DATES: This regulation is effective October 14, 2014. For judicial
review purposes, this final rule is promulgated as of 1 p.m. EDT
(Eastern Daylight Time) on August 29, 2014 as provided in 40 CFR 23.2.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2008-0667. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI (confidential business
information) or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hardcopy
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hardcopy at the Water
Docket in the EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301
Constitution Avenue NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
202-566-1744, and the telephone number for the Water Docket is 202-566-
2426.
FOR FURTHER INFORMATION CONTACT: For additional biological information,
contact Tom Born at 202-566-1001; email: born.tom@epa.gov. For
additional economic information, contact Wendy Hoffman at 202-564-8794;
email: hoffman.wendy@epa.gov. For additional technical information,
contact Paul Shriner at 202-566-1076; email: shriner.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
What facilities are regulated by this action?
This final rule applies to existing facilities that use cooling
water intake structures to withdraw water from waters of the United
States and have or require an NPDES (National Pollutant Discharge
Elimination System) permit issued under section 402 of the CWA (Clean
Water Act). Existing facilities subject to this regulation include
those with a design intake flow (DIF) greater than 2 mgd. If a facility
meets these conditions, it is subject to today's final regulations. If
a facility has or requires an NPDES permit but does not meet the 2 mgd
intake flow threshold, it is subject to permit conditions implementing
CWA section 316(b), developed by the NPDES Permit Director on a case-
by-case basis using BPJ (best professional judgment) under 40 CFR
125.90(b). This final rule defines the term cooling water intake
structure to mean the total physical structure and any associated
constructed waterways used to withdraw cooling water from waters of the
United States. The cooling water intake structure extends from the
point at which water is first withdrawn from waters of the United
States source up to, and including, the intake pumps. Generally,
facilities that meet these criteria fall into two major groups: steam
electric generating facilities and manufacturing facilities. The final
rule also makes limited changes to the requirements for Phase I
facilities (i.e., new facilities).
Exhibit 1 lists industry sectors of facilities subject to this
final rule. This table is not intended to be exhaustive; facilities in
other industries not listed in Exhibit 1 could also be regulated. The
4-digit NAICS industry sectors may include 6-digit NAICS industry sub-
sectors with operations that are not dependent on cooling water.
[[Page 48301]]
Exhibit 1--Industry Sectors With Facilities Subject to the Final Rule
----------------------------------------------------------------------------------------------------------------
4-Digit NAICS industry
Category sectors NAICS definition
----------------------------------------------------------------------------------------------------------------
Federal, State and Local Government Electric Power Industry
----------------------------------------------------------------------------------------------------------------
2211 Electric Power
Generation, Transmission
and Distribution.
----------------------------------------------------------------------------------------------------------------
Industry Electric Power Industry
----------------------------------------------------------------------------------------------------------------
2211 Electric Power
Generation, Transmission
and Distribution.
----------------------------------------------------------------------------------------------------------------
Industry Primary Manufacturing
Industries
----------------------------------------------------------------------------------------------------------------
3112 Grain and Oilseed
Milling.
3113 Sugar and Confectionery
Product Manufacturing.
3121 Beverage Manufacturing.
3221 Pulp, Paper, and
Paperboard Mills.
3222 Converted Paper Product
Manufacturing.
3241 Petroleum and Coal
Products Manufacturing.
3251 Basic Chemical
Manufacturing.
3252 Resin, Synthetic Rubber,
and Artificial Synthetic
Fibers and Filaments
Manufacturing.
3253 Pesticide, Fertilizer,
and Other Agricultural
Chemical Manufacturing.
3254 Pharmaceutical and
Medicine Manufacturing.
3256 Soap, Cleaning Compound,
and Toilet Preparation
Manufacturing.
3259 Other Chemical Product
and Preparation
Manufacturing.
3311 Iron and Steel Mills and
Ferroalloy
Manufacturing.
3312 Steel Product
Manufacturing from
Purchased Steel.
3313 Alumina and Aluminum
Production and
Processing.
----------------------------------------------------------------------------------------------------------------
Industry Other Industries
----------------------------------------------------------------------------------------------------------------
1119 Other Crop Farming.
2122 Metal Ore Mining.
3133 Textile and Fabric
Finishing and Fabric
Coating Mills.
3211 Sawmills and Wood
Preservation.
3314 Nonferrous Metal (except
Aluminum) Production and
Processing.
3322 Cutlery and Handtool
Manufacturing.
3329 Other Fabricated Metal
Product Manufacturing.
3364 Aerospace Product and
Parts Manufacturing.
3391 Medical Equipment and
Supplies Manufacturing.
----------------------------------------------------------------------------------------------------------------
To determine whether a facility could be regulated by this action,
one should carefully examine the applicability criteria in Sec. 125.91
of the final rule. For information regarding the applicability of this
action to an entity, consult the persons listed for technical
information in FOR FURTHER INFORMATION CONTACT.
Supporting Documentation
1. Docket
EPA has established an official public docket for this action under
Docket ID EPA-HQ-OW-2008-0667. The official public docket consists of
the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include information claimed as Confidential Business Information (CBI)
or other information, the disclosure of which, is restricted by
statute. For information on how to access materials in the docket, see
ADDRESSES above. To view docket materials, call ahead to schedule an
appointment. Every user is entitled to copy 266 pages per day before
incurring a charge. The Docket Center may charge $0.15 for each page
over the 266-page limit, plus an administrative fee of $25.00.
2. Electronic Access
You may access this Federal Register document and the docket
electronically through the Web site https://www.regulations.gov by
searching for Docket ID EPA-HQ-OW-2008-0667. For additional information
about the public docket, visit the EPA Docket Center home page at
https://www.epa.gov/epahome/dockets.htm.
3. Technical Support Documents
The final regulation is supported by three major documents:
Economic Analysis for the Final Section 316(b) Existing
Facilities Rule (EPA-821-R-14-001), referred to as the EA throughout.
This document presents the analysis of compliance costs, economic
impacts, energy supply effects, and a summary of benefits associated
with the final rule.
Benefits Analysis for the Final Section 316(b) Existing
Facilities Rule (EPA-821-R-14-005), referred to as the BA throughout.
This document examines cooling water intake structure impacts and
regulatory benefits at the regional and national levels.
Technical Development Document for the Final Section
316(b) Existing Facilities Rule (EPA-821-R-14-002), referred to as the
TDD throughout. This document presents detailed information on the
methods used to develop unit costs and describes the set of
technologies that may be used to meet the final rule requirements.
Table of Contents
I. Executive Summary and Scope of Today's Rulemaking
A. Executive Summary
B. Scope of Today's Rulemaking
C. General Applicability
[[Page 48302]]
D. What is an ``existing facility'' for purposes of the final
rule?
E. What is ``cooling water'' and what is a ``cooling water
intake structure?''
F. Would my facility be covered only if it is a point source
discharger?
G. Would my facility be covered if it withdraws water from
waters of the united states? What if my facility obtains cooling
water from an independent supplier?
H. What intake flow thresholds result in an existing facility
being subject to the final rule?
I. What are the requirements for existing offshore oil and gas
facilities, offshore seafood processing facilities or LNG terminals
BTA requirements under the final rule?
J. What is a ``new unit'' and how are new units addressed under
the final rule?
K. Amendments related to the phase I rule
II. Legal Authority for and Background of the Final Regulation
A. Legal Authority
B. Purpose of the Regulation
C. Background
III. Environmental Effects Associated With Cooling Water Intake
Structures
A. Introduction
B. Major Anthropogenic Stressors in Aquatic Ecosystems
C. Effects of CWIS on Aquatic Ecosystems
D. Community--Level or Indirect Effects of CWIS
E. Cumulative Effects of Multiple Facilities
IV. Summary Description of the Final Rule
A. BTA Standard for Impingement Mortality for Existing Units at
Existing Facilities
B. BTA Standard for Entrainment for Existing Units at Existing
Facilities
C. BTA Standard for Impingement Mortality and Entrainment for
New Units at Existing Facilities
D. Other Provisions
V. Summary of Data Updates and Revisions to the Proposed Rule
A. Data Updates
B. Regulatory Approach and Compliance
C. New Units
VI. Basis for the Final Regulation
A. EPA's Approach to BTA
B. Overview of Final Rule Requirements
C. Technologies Considered To Minimize Impingement and
Entrainment
D. Technology Basis for Today's Final Rule
E. Option Selection
F. Other Options Considered for Today's Final Regulation
G. Final Rule BTA Performance Standards
H. Economic and Benefit Analysis for the Final Rule
I. Site-Specific Consideration of Entrainment Controls
VII. Response to Major Comments on the Proposed Rule and Notices of
Data Availability (NODAs)
A. Scope and Applicability
B. Proposed Amendments Related to Phase I Rule
C. Environmental Impact Associated With Cooling Water Intake
Structures
D. EPA's Approach to BTA
E. BTA Performance Standards
F. Implementation
G. Costs
H. Monitoring and Reporting
I. Endangered Species Act
VIII. Implementation
A. When does the final rule become effective and how are the
requirements sequenced in an orderly way?
B. How does the final rule reduce biological monitoring
requirements?
C. What information will I be required to submit to the director
when I apply for my NPDES permit?
D. When are permit application studies due?
E. How will the director determine the best technology available
for minimizing adverse environmental impacts?
F. What are example permit conditions and compliance monitoring
for impingement mortality?
G. What monitoring is required for entrainment?
H. What reports am I required to submit?
I. What records will I be required to keep?
J. What are the respective Federal, State, and Tribal roles?
K. Protection of Endangered and Threatened Species and
Designated Critical Habitat
L. Permits for Existing Facilities are Subject to Requirements
under Other Federal Statutes
IX. Cost Development and Economic Impact Analysis
A. Overview of Costs to Regulated Facilities and Federal and
State Governments
B. Development of Compliance Costs
C. Social Costs
D. Economic Impacts
E. Employment Effects
X. Benefits Analysis
A. Introduction
B. Regional Study Design
C. Physical Impacts of Impingement Mortality and Entrainment
D. National Benefits of the Final Rule and Options Considered
XI. Related Acts of Congress, Executive Orders, and Agency
Initiatives
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Executive Order 13158: Marine Protected Areas
L. Congressional Review Act
I. Executive Summary and Scope of Today's Rulemaking
A. Executive Summary
1. Summary of the Major Provisions of the Regulatory Action
This rule establishes requirements under section 316(b) of the
Clean Water Act (CWA) for existing power generating facilities and
existing manufacturing and industrial facilities that withdraw more
than 2 million gallons per day (mgd) of water from waters of the United
States and use at least 25 percent of the water they withdraw
exclusively for cooling purposes. These national requirements, which
will be implemented through National Pollutant Discharge Elimination
System (NPDES) permits, apply to the location, design, construction,
and capacity of cooling water intake structures (CWIS) at regulated
facilities by setting requirements that reflect the best technology
available (BTA) for minimizing adverse environmental impact.\1\ On
April 20, 2011, EPA published a proposed rule that included several
options for addressing these impacts. EPA published two Notices of Data
Availability (NODA), on June 11, 2012 and June 12, 2012, that further
clarified EPA's approach. This final rule constitutes EPA's response to
the remand of the Phase II and Phase III rules. In addition, EPA is
also responding to the decision in Riverkeeper I to remove from the
Phase I new facility rule the restoration-based compliance alternative
and the associated monitoring and demonstration requirements.
---------------------------------------------------------------------------
\1\ As noted here, the term BTA means ``best technology
available for minimizing adverse environmental impact.'' In the
interests of brevity, the acronym will frequently be used in the
preamble to reflect the entire definition.
---------------------------------------------------------------------------
2. Need for the Rule
Cooling water is withdrawn for the purpose of dissipating waste
heat from industrial processes. Over half of all water withdrawn in the
United States each year is for cooling purposes. By far, the largest
industrial use of cooling water is for thermoelectric generation, but
cooling water is also used in the manufacture of aluminum, chemicals
and allied products, food and kindred products, pulp and paper, refined
petroleum products, and steel, as well as in other industries. Although
newer designs are more efficient, the long life of the capital
equipment in these industries suggests that the adverse environmental
impacts could continue for decades. Electric generators, for
[[Page 48303]]
example, typically convert 30 to 40 percent of the heat content of
their fuel to electricity, depending on their fuel source, age of their
facility, and capacity utilization (see TDD 5.1). The purpose of
cooling water withdrawals is to dissipate that portion of the heat that
is a by-product of industrial processes that facilities have not used
and therefore view as waste heat.
The withdrawal of cooling water by existing facilities removes and
kills hundreds of billions of aquatic organisms from waters of the
United States each year, including plankton (small aquatic animals,
including fish eggs and larvae), fish, crustaceans, shellfish, sea
turtles, marine mammals, and many other forms of aquatic life. Most
impacts are to early life stages of fish and shellfish. Aquatic
organisms drawn into CWIS are either impinged (I) on components of the
intake structure or entrained (E) in the cooling water system itself.
In CWA section 316(b) and in this rulemaking, these impacts are
referred to as adverse environmental impact (AEI). Rates of I&E depend
on species characteristics, the facility's environmental setting, and
the location, design, construction and capacity of the facility's CWIS.
In addition to direct losses of aquatic organisms from I&E, a number of
indirect, ecosystem-level effects may also occur, including (1)
disruption of aquatic food webs resulting from the loss of impinged and
entrained organisms that provide food for other species, (2) disruption
of nutrient cycling and other biochemical processes, (3) alteration of
species composition and overall levels of biodiversity, and (4)
degradation of the overall aquatic environment. In addition to the
impacts of a single CWIS on currents and other local habitat features,
environmental degradation can result from the cumulative impact of
multiple intake structures operating in the same watershed or intakes
located within an area where intake effects interact with other
environmental stressors. Finally, although it is difficult to measure,
the compensatory ability of an aquatic population, which is the
capacity for a species to increase survival, growth, or reproduction
rates in response to decreased population, is likely compromised by I&E
and the cumulative impact of other stressors in the environment over
extended periods of time.
The beneficiaries of fish protection at cooling water intakes
include fisherman, both recreational and commercial, and people
interested in well-functioning and healthy aquatic ecosystems. While
most people consume electricity, they consume electricity in differing
amounts, and may not be uniformly interested in, or willing to pay for,
fish protection. Thus, there is imperfect overlap between those who
could be required to pay for fish protection and those who would
benefit from fish protection. Those who desire more fish protection
have extremely limited opportunities in which they can express their
willingness to pay for fish protection in market transactions that
result in fish protection. In addition, deregulation in the electric
industry has made it more difficult for merchant power producers to
both remain competitive and pass along to consumers costs associated
with fish protection, relative to rate-regulated electric utilities
that are vertically integrated.
Fish protection at cooling water intakes is also variable, based on
species and their migrations, waterbody, size of a cooling water
intake, presence of multiple facilities on a waterbody, and many more
variables that are highly site specific. In addition, given the history
of litigation around this section of the Clean Water Act, states have,
in some instances, administratively continued permits while awaiting
final Federal action, and thus fish protection has been delayed, in
some instances for decades.
Promulgation of today's final rule will complete EPA's regulations
under section 316(b) of the Clean Water Act. This rule includes a
national performance standard as the BTA to address impingement
mortality (IM) at existing CWIS. This national standard for impingement
reflects EPA's assessment that impingement reduction technology is
available, feasible and demonstrated, and thus BTA for existing
facilities. The impingement mortality standard is based on modified
traveling screens with fish returns and includes a performance standard
as one compliance alternative, but also offers six other compliance
alternatives that are equivalent or better in performance. With regard
to entrainment, this rule contains a national BTA standard that is a
process for a site-specific determination of entrainment mitigation
requirements at existing CWIS. The entrainment provision reflects EPA's
assessment that there is no single technology basis that is BTA for
entrainment at existing facilities, but instead a number of factors
that are best accounted for on a site-specific basis. Site-specific
decision making may lead to a determination by the NPDES permitting
authority that entrainment requirements should be based on variable
speed pumps, water reuse, fine mesh screens, a closed-cycle
recirculating system, or some combination of technologies that
constitutes BTA for the individual site. The site-specific decision-
making may also lead to no additional technologies being required.
In addition to the above provisions, which apply to existing units
at existing facilities, the rule establishes a BTA standard, for both
impingement mortality and entrainment, for new units at existing
facilities. Under this standard, new units at existing facilities will
be subject to requirements similar to the section 316(b) requirements
for new facilities subject to the previously promulgated Phase I rule.
In addition, there is a need to regulate even those facilities that
adopt the most effective technology. Closed-cycle cooling is a
technology that recirculates cooling water, reducing withdrawals from
surface waters. Closed-cycle cooling can reduce water withdrawals by at
least 95 percent, compared to once-through cooling, but is itself
capital intensive. Facilities that retrofit to closed-cycle cooling
without also modifying their condenser may not be able to operate at
full capacity during summer peak periods of electricity demand
(replacing the condenser would require longer outages). Operators who
retrofit closed-cycle cooling systems have a financial incentive not to
run their system in closed-cycle mode during summer months. Thus,
decision making at facilities that use cooling water may not take
society's preferences for fish protection into account in their
actions.
EPA notes that some facilities have installed, and some NPDES
permits require, controls that protect aquatic organisms from
impingement and entrainment. Facilities may have adopted controls as
good stewards. Directors may have required controls to meet state water
quality standards, particularly with regard to temperature. Based on
our evaluation of available evidence, these actions have not been
widespread enough to discourage cooling water withdrawals from waters
where they have the greatest impact on aquatic organisms.
3. Costs and Benefits
As presented in Exhibit I-1, EPA assessed the expected costs to
society for complying with the final rule, accounting for both the
existing CWIS unit provision and the new unit provision, as $275
million and $297 million per year at the 3 percent and 7 percent
discount rates, respectively. These costs reflect permit applications,
studies, recordkeeping, monitoring, and reporting required by the rule.
The costs also include costs of technologies for
[[Page 48304]]
complying with the BTA for IM. The cost of additional technologies that
may be required to meet the site-specific BTA for entrainment are not
included in this analysis because, as explained in Section VII, EPA
cannot estimate, with any level of certainty, what site-specific
determinations will be made based on the analyses that will be
generated as a result of the national BTA standard for entrainment
decision-making established by today's rule.
EPA estimates that today's final rule--including standards for both
existing units and new units at existing facilities--will achieve
monetized benefits to society of $33 million and $29 million annually,
again depending on the discount rate. This estimate of benefits omits
important categories of benefits that EPA expects the rule will
achieve, such as most of the benefits associated with fish other than
commercially and recreationally harvested fish. As a result, these
estimates are likely to understate substantially the rule's expected
benefits to society. In estimating the benefits of today's rule, EPA
did not rely on the results of the stated preference survey conducted
by the Agency and described in the June 12, 2012 Notice of Data
Availability (77 FR 34927 (June 12, 2012)). Included in the monetized
benefits is EPA's estimate that the final rule will reduce greenhouse
gas (GHG) emissions by 9.3 million tons of CO2-equivalent
emissions over the 40-year compliance period for this analysis. Based
on this reduction in GHG emissions, EPA estimates benefits to society
(based on social cost of carbon (DCN \2\ 12-4853)) ranging from $12
million to $13 million annually (see Section 9 of the BA), depending on
the discount rate and other assumptions in the social cost of carbon
analysis.
---------------------------------------------------------------------------
\2\ DCN refers to a document control number. An index of DCNs
can be found in the docket for this action.
Exhibit I-1--Total Annualized Social Costs and Benefits for the Final
Rule
[in millions, 2011 dollars]
------------------------------------------------------------------------
Existing
units New units Total
------------------------------------------------------------------------
Using 3 percent discount rate:
Social Costs................. $272.4 $2.5 $274.9
Social Benefits.............. 33.0 -0.2 32.8
Using 7 percent discount rate:
Social Costs................. 295.3 2.0 297.3
Social Benefits.............. 28.7 -0.1 28.6
------------------------------------------------------------------------
EPA expects that the final rule will have relatively minor economic
impacts on the regulated facilities, the entities that own them, and
the overall electric power sector, which is the industry most affected
by today's rule. Under the rule's existing unit provisions, EPA
estimates that a substantial majority (86 percent) of electric
generators will incur compliance costs of less than 1 percent of
revenue, indicating the minor impact of the rule on these facilities.
EPA also expects very small impacts on the non-power sector
component of regulated facilities. EPA estimates that 504 out of 509
facilities will incur costs less than one percent of revenue, five will
incur costs between one and three percent, and none will incur costs
greater than 3 percent. In addition, EPA estimates that no
manufacturing facilities will close as a result of today's rule, and
that only 12 facilities in the non-power sector component will
experience moderate financial stress short of closure. These 12
facilities represent approximately 3 percent of the estimated total
regulated facilities in the non-power sector component.
At the level of the entities that own regulated facilities, EPA
estimates that 91 to 94 percent of entities owning regulated facilities
in the electric power sector will incur compliance costs of less than 1
percent of revenue under the rule's existing unit provisions. Likewise,
for the non-power sector component of regulated facilities, EPA
estimates that 90 to 95 percent of entities owning regulated facilities
will incur compliance costs of less than 1 percent of revenue under the
rule's existing unit provisions.
Finally, EPA estimates that today's rule will have a minor impact
on the overall electric power sector and electricity consumers. EPA
estimates that the rule will not affect national or regional
electricity markets on a long-term basis. In addition, EPA expects
there to be no effects of the final rule on the reliability of
electricity generation, transmission and distribution. In terms of
consumer impacts, EPA estimates, on average, across the United States,
that the final rule will increase electricity production costs by 0.009
cents per kWh, causing an estimated 0.1 percent increase in average
electricity prices. The corresponding annual increase in electricity
costs is approximately $1.03 per household.
B. Scope of Today's Rulemaking
Today's final rule represents the last stage in EPA's efforts to
implement section 316(b) of the CWA. In the course of their operations,
electric power facilities and certain manufacturing facilities use
large amounts of water either for cooling purposes or in their
manufacturing processes. Such facilities typically remove water from
nearby sources using ``cooling water intake structures.'' The
structures associated with water removal pose a number of threats to
the environment. Principally, aquatic organisms are squashed against
intake screens--impingement--or drawn into the cooling system--
entrainment. Section 316(b) requires EPA to develop standards for
cooling water intakes structures.
Today's final rule establishes national requirements applicable to
the location, design, construction, and capacity of cooling water
intake structures at existing facilities that reflect the BTA for
minimizing the adverse environmental impacts- impingement and
entrainment--associated with the use of these structures. It represents
the culmination of EPA's efforts to implement section 316(b) and, as
such, fulfills EPA's obligation under a settlement agreement entered in
the United States District Court for the Southern District of New York
in Riverkeeper Inc., et al. v. Jackson, No. 93 Civ. 0314 (AGS). (For a
more detailed discussion of the settlement agreement, see Section
II.C.)
This final rule establishes requirements for all existing
facilities with a DIF (design intake flow) of more
[[Page 48305]]
than 2 mgd. EPA estimates that a total of 1,065 facilities will be
subject to the final rule, including 544 Electric Generators, 509
Manufacturers in six Primary Manufacturing Industries, and 12
Manufacturers in Other Industries. The rule also clarifies the
definition and requirements for new units at existing facilities. The
applicable requirements are summarized in Exhibits I-2 and I-3.
Exhibit I-2--Applicability by Phase of the 316(b) Rules
------------------------------------------------------------------------
Facility characteristic Applicable rule
------------------------------------------------------------------------
New power-generating or Phase I rule.
manufacturing facility.
New offshore oil and gas Phase III rule.
facility.
New unit at an existing power- This rule.
generating or manufacturing
facility.
Existing power-generating or This rule.
manufacturing facility.
Existing offshore oil and gas This rule (site-specific, BPJ).
facility and offshore
seafood processing
facilities.
------------------------------------------------------------------------
Exhibit I-3--Applicable Requirements of Today's Rule for Existing
Facilities
------------------------------------------------------------------------
Facility characteristic Applicable requirements
------------------------------------------------------------------------
Existing facility with a DIF greater Impingement mortality standards
than 2 mgd and an AIF (actual intake at Sec. 125.94(c) and site-
flow) greater than 125 mgd. specific entrainment
requirements under the
entrainment standards at Sec.
125.94(d) (Additional study
requirements at Sec.
122.21(r)(1)(ii)(B)).
Existing facility with a DIF greater Impingement mortality standards
than 2 mgd but AIF not greater than at Sec. 125.94(c) and site-
125 mgd. specific entrainment
requirements under the
entrainment standards at Sec.
125.94(d).
New unit at an existing facility where Impingement mortality and
the facility has a DIF greater than 2 entrainment standards for new
mgd. units at Sec. 125.94(e).
Other existing facility with a DIF of 2 Case-by-case BPJ permitting per
mgd or smaller or that has an intake Sec. 125.90(b).
structure that withdraws less than 25
percent of the water for cooling
purposes on an actual intake flow
basis.
------------------------------------------------------------------------
At an early stage in the development of section 316(b)
requirements, EPA divided its rulemaking effort into three phases. The
first addressed new facilities, the second, large existing electricity
utility facilities and the third, the remaining electric generating
facilities not addressed in the earlier phases as well as existing
manufacturing operations. As EPA's analysis progressed, however, it
became clear that it could address in one rulemaking cooling water
intake structures at both existing steam electric generating and
manufacturing facilities. From a biological perspective, the effect of
intake structures on impingement and entrainment \3\ does not differ
depending on whether an intake structure is associated with a power
plant or a manufacturer. In 2009, following judicial challenge of the
Phase II rule, EPA asked the U.S. Court of Appeals for the Second
Circuit to remand the rule to the Agency for further action consistent
with a decision by the U.S. Supreme Court in Entergy Corp. v.
Riverkeeper, Inc. and the Second Circuit's decision on the Phase II
rule in Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d cir. 2007). In 2009,
EPA also asked the U.S. Court of Appeals for the Fifth Circuit to
remand certain aspects of EPA's Phase III rule that were before it in a
petition for review. Today's rule responds to these remands as well to
the Second Circuit's remand of limited aspects of the Phase I section
316(b) rule in Riverkeeper Inc. v. Johnson, 358 F.3d 174 (2nd Cir.
2004). EPA has here consolidated the universe of potentially regulated
facilities from the remanded 2004 Phase II rule with the existing
facilities in the remanded 2006 Phase III rule for establishing
requirements in a single proceeding.
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\3\ Throughout the preamble and support documents, the terms
``entrainment'' and ``entrainment mortality'' may be used
interchangeably. As described below, EPA continues to assume that,
in most instances, entrainment mortality is 100 percent, leaving
little distinction between the two terms.
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C. General Applicability
This rule applies to owners and operators of existing facilities
\4\ that meet all following criteria:
---------------------------------------------------------------------------
\4\ Throughout the preamble, the terms ``owner or operator of a
facility'' and ``facility'' may be used interchangeably. In cases
where the preamble may state that a facility is required to do a
given activity, it should be interpreted as the owner or operator of
the facility is required to do the activity.
---------------------------------------------------------------------------
The facility is a point source that uses or, in the case
of new units at an existing facility, proposes to use cooling water
from one or more cooling water intake structures, including a cooling
water intake structure operated by an independent supplier not
otherwise subject to 316(b) requirements that withdraws water from
waters of the United States and provides cooling water to the facility
by any sort of contract or other arrangement;
The facility-wide DIF for all cooling water intake
structures at the facility is greater than 2 mgd;
The cooling water intake structure withdraws cooling water
from waters of the United States; and
At least 25 percent of the water actually withdrawn--
actual intake flow (AIF)--is used exclusively for cooling purposes.
A facility may choose to demonstrate compliance with the final rule
for the entire facility, or for each individual cooling water intake
structure.
EPA is adopting provisions that promote the reuse of water from
certain sources for cooling and that ensure that the rule does not
discourage the reuse of cooling water for other uses such as process
water. For example, the final rule at Sec. 125.91(c) specifies that
obtaining cooling water from a public water system, using reclaimed
water from wastewater treatment facilities or desalination plants, or
recycling treated process wastewater effluent (such as wastewater
treatment plant ``gray'' water) does not constitute use of a cooling
water intake structure for purposes of this rule. In addition, the
definition of cooling water at Sec. 125.92 provides that cooling water
obtained from a public water system, reclaimed water from wastewater
treatment facilities or desalination plants, treated effluent from a
manufacturing facility, or cooling water that is used in a
manufacturing process either before or
[[Page 48306]]
after it is used for cooling as process water is not considered cooling
water for the purposes of calculating the percentage of a facility's
intake flow that is used for cooling purposes. Therefore, water used
for both cooling and non-cooling purposes does not count toward the 25
percent threshold. Examples of water withdrawn for non-cooling purposes
includes water withdrawn for warming by LNG (liquefied natural gas)
facilities and water withdrawn for public water systems by
desalinization facilities.
Today's rule focuses on those facilities that are significant users
of cooling water. The rule provides that only those facilities that use
25 percent or more of the water withdrawn exclusively for cooling
purposes (on an actual intake flow basis) are subject to the rule. EPA
previously considered a number of cut-points or approaches for focusing
the applicability of the rule (66 FR 28854, May 25, 2001 and 66 FR
65288, December 18, 2001). EPA used the 25 percent threshold in each of
the Phase I, II, and III rules. For this rule, EPA did not receive any
new data supporting a different threshold or identify new approaches to
the applicability of the rule. Consequently, EPA is adopting 25 percent
as the threshold for the percent of flow used for cooling purposes to
ensure that a large majority of cooling water withdrawn from waters of
the United States are subject to the rule's requirements for minimizing
adverse environmental impact. Because power-generating facilities
typically use far more than 25 percent of the water they withdraw
exclusively for cooling purposes, the 25 percent threshold will ensure
that intake structures accounting for nearly all cooling water used by
the power sector are addressed by today's rule requirements. While
manufacturing facilities often withdraw water for more purposes than
cooling, the majority of the water is withdrawn from a single intake
structure. Once water passes through the intake, water can be
apportioned to any desired use, including uses that are not related to
cooling. However, as long as at least 25 percent of the water is used
exclusively for cooling purposes, the intake is subject to the
requirements of today's rule. EPA estimates that approximately 70
percent of manufacturers and 87 percent of power-generating facilities
that meet the first three criteria for applicability outlined above
also use 25 percent or more of intake water for cooling and thus are
subject to today's rule. (See 66 FR 65288, December 18, 2001.)
For facilities that are below any of the applicability thresholds
in today's rule--for example, a facility that withdraws less than 25
percent of the intake flow for cooling purposes--the Director must set
appropriate requirements on a case-by-case basis, using BPJ, based on
Sec. 125.90(b). Today's rule is not intended to constrain permit
writers at the Federal, State, or Tribal level, from addressing such
cooling water intake structures. Also, EPA decided to adopt for the
final rule the proposed provision that requires the owners and
operators for certain categories of facilities (existing offshore oil
and gas facilities, existing offshore seafood processing facilities and
offshore LNG terminals) to meet case-by-case BTA impingement and
entrainment requirements, established by the Director. Such facilities
are subject to permit conditions implementing CWA section 316(b) if the
facility is a point source that uses a cooling water intake structure
and has, or is required to have, an NPDES permit.
D. What is an ``existing facility'' for purposes of the final rule?
In today's rule, EPA is defining the term ``existing facility'' to
include any facility subject to section 316(b) that is not a ``new
facility'' as defined in 40 CFR 125.83 (the Phase I rule).
A point source discharger would be subject to Phase I or today's
rule even if the cooling water intake structure it uses is not located
at the facility.\5\ In addition, modifications or additions to the
cooling water intake structure (or even the total replacement of an
existing cooling water intake structure with a new one) does not
convert an otherwise unchanged existing facility into a new facility,
regardless of the purpose of such changes (e.g., to comply with today's
rule or to increase capacity). Rather, the determination as to whether
a facility is new (Phase I) or existing (today's rule) focuses on
whether or not it is a greenfield or stand-alone facility whose
processes are substantially independent of an existing facility, and
whether or not there are changes to the cooling water intake. New
facility does not include new units that are added to a facility for
purposes of the same general industrial operation. For example, a new
peaking unit at an existing electrical generating station is not a new
facility (40 CFR 125.83). The distinction between an existing facility
and a new facility is separate from the distinction between an existing
unit at an existing facility and a new unit at an existing facility,
which is discussed at greater length in Section J below.
---------------------------------------------------------------------------
\5\ For example, a facility might purchase its cooling water
from a nearby facility that owns and operates a cooling water intake
structure.
---------------------------------------------------------------------------
E. What is ``cooling water'' and what is a ``cooling water intake
structure?''
EPA has slightly revised the definition of cooling water intake
structure from proposal for today's rule. In today's final rule, a
cooling water intake structure is defined as the total physical
structure and any associated constructed waterways used to withdraw
cooling water from waters of the United States. Under the definition in
today's rule, the cooling water intake structure extends from the point
at which water is first withdrawn from Waters of the United States up
to, and including, the intake pumps. The final rule at Sec. 125.91(c)
also specifies that obtaining cooling water from a public water system,
using reclaimed water from wastewater treatment facilities (such as
wastewater treatment plant ``gray'' water) or desalination plants, or
recycling treated process wastewater effluent does not constitute use
of a cooling water intake structure for purposes of applicability of
this rule. As a point of clarification, facilities subject to today's
rule may choose to use another entity's treated wastewater as a source
of cooling water, thereby reducing cooling water withdrawals and
associated impingement and entrainment. EPA notes that because the
entity providing the wastewater for cooling has already treated it to
meet any applicable discharge requirements (e.g., otherwise applicable
effluent limitations guidelines and standards, water quality standards,
etc.), EPA is not concerned that this provision will lead to pollutant
discharges that would not have occurred if the treated effluent had
been discharged by the other entity.
Today's rule adopts the new facility rule's definition of cooling
water as water used for contact or noncontact cooling, including water
used for equipment cooling, evaporative cooling tower makeup, and
dilution of effluent heat content. The definition specifies that the
intended use of cooling water is to absorb waste heat [not being
efficiently used or recaptured for production and thus] rejected from
the process or processes used or from auxiliary operations on the
facility's premises. The definition also indicates that cooling water
obtained from a public water system, reclaimed water from wastewater
treatment facilities or desalination plants, treated effluent from a
manufacturing facility, or cooling water that is used in a
manufacturing process either before or after it is used for cooling as
process water would not
[[Page 48307]]
be considered cooling water for the purposes of determining whether 25
percent or more of the actual intake flow is cooling water. This
clarification is necessary because cooling water intake structures
typically bring water into a facility for numerous purposes, including
industrial processes; use as circulating water, service water, or
evaporative cooling tower makeup water; dilution of effluent heat
content; equipment cooling; and air conditioning. Note, however, that
all intake water (including cooling and non-cooling process) is
included in the determination as to whether the 2 mgd DIF threshold for
covered intake structures is met.
F. Would my facility be covered only if it is a point source
discharger?
Today's rule applies only to facilities that have an NPDES permit
or are required to obtain one. This is the same requirement EPA
included in the Phase I new facility rule at Sec. 125.81(a)(1).
Requirements for complying with CWA section 316(b) will continue to be
applied through NPDES permits.
On the basis of the Agency's review of potential existing
facilities that employ cooling water intake structures, the Agency
anticipates that most facilities will control the intake structure that
supplies them with cooling water, and discharge some combination of
their cooling water, wastewater, or stormwater to a water of the United
States through a point source regulated by an NPDES permit. In such
cases, the facility's NPDES permit must include the requirements for
the cooling water intake structure. If an existing facility's only
NPDES permit is a general permit for stormwater discharges, the Agency
anticipates that the Director will write an individual NPDES permit
containing requirements for the facility's cooling water intake
structure. Alternatively, requirements applicable to cooling water
intake structures could be incorporated into general permits. If
requirements are placed into a general permit, they must meet the
requirements set out at 40 CFR 122.28.
As EPA stated in the preamble to the final Phase I rule (66 FR
65256, December 18, 2001), the Agency encourages the Director to
closely examine scenarios in which a facility withdraws significant
amounts of cooling water from waters of the United States but is not
required to obtain an NPDES permit. As appropriate, the Director must
apply other legal requirements, where applicable, such as CWA sections
401 or 404, the Coastal Zone Management Act, the National Environmental
Policy Act, the Endangered Species Act, or similar State or Tribal
authorities to address adverse environmental impact caused by cooling
water intake structures at those facilities.
G. Would my facility be covered if it withdraws water from waters of
the united states? what if my facility obtains cooling water from an
independent supplier?
The requirements in today's rule apply to cooling water intake
structures that have the design capacity to withdraw amounts of water
greater than 2 mgd from waters of the United States. Waters of the
United States include the broad range of surface waters that meet the
regulatory definition at 40 CFR 122.2 and 40 CFR 230.3, which includes
lakes, ponds, reservoirs, nontidal rivers or streams, tidal rivers,
estuaries, fjords, oceans, bays, and coves. These potential sources of
cooling water can be adversely affected by impingement and entrainment.
Some facilities use an impoundment such as a man-made pond or
reservoir as part of a cooling system. Cooling water is withdrawn from
the pond or reservoir at one point and heated water is discharged to a
different point, using mixing and evaporative processes. As explained
above, section 316(b) and today's final rule apply only to withdrawals
of cooling water from waters of the United States; accordingly, to the
extent a facility withdraws cooling water from a pond or reservoir that
is not itself a water of the United States and does not withdraw any
make-up water from waters of the U.S., the requirements of today's rule
do not apply to such systems. Impoundments that are not constructed
from a waters of the U.S. but do withdraw make-up water from waters of
the U.S. can be closed-cycle recirculating systems subject to the
requirements of today's rule, provided that withdrawal for make-up
water is minimized.
Facilities that withdraw cooling water from impoundments that are
in whole or in part waters of the United States and that meet the other
criteria for coverage (including the requirement that the facility has
or will be required to obtain an NPDES permit) are subject to today's
rule. In today's rule, the agency is defining the term closed-cycle
recirculating system to include, at Sec. 125.92(c)(2), a system with
impoundments of waters of the U.S. where the impoundment was lawfully
created \6\ for the purpose of serving as part of the cooling water
system. In determining whether an impoundment qualifies as a closed-
cycle recirculating system, the Director will determine whether the
make-up water withdrawals for such a system have been minimized. In
many cases, EPA expects that such make-up water withdrawals are
commensurate with the flows of a closed-cycle cooling tower. Some of
these impoundments may qualify for the waste treatment exclusion found
in the definition of a waste treatment system at 40 CFR 122.2, and this
rule does not affect the applicability of that exclusion.
---------------------------------------------------------------------------
\6\ The owner or operator of the facility would provide
documentation such as the project purpose statement for the Clean
Water Act section 404 permit obtained to construct the impoundment.
If the impoundment was created prior to the CWA requirement to
obtain a section 404 permit, the owner or operator would provide any
other license or permit obtained to lawfully construct the
impoundment for the purposes of a cooling water system.
---------------------------------------------------------------------------
EPA does not intend for this rule to change the regulatory status
of impoundments. Impoundments are addressed in the definition of waters
of the United States at 40 CFR 122.2 and 40 CFR 230.3. The
determination whether an impoundment is a water of the United States is
to be made by the Director on a site-specific basis. The EPA and the
U.S. Army Corps of Engineers have jointly issued jurisdictional
guidance concerning the term waters of the United States in light of
the Supreme Court's decision in Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). A
copy of that guidance was published as an Appendix to an Advanced
Notice of Proposed Rulemaking on the definition of the phrase waters of
the United States, see 68 FR 1991, January 15, 2003, which is at https://www.epa.gov/owow/wetlands/pdf/ANPRM-FR.pdf. The agencies additionally
published guidance in 2008 regarding the term waters of the United
States in light of both the SWANCC and subsequent Rapanos case (Rapanos
v. United States, 547 U.S. 715 (2006)). The EPA published a proposed
revision to the definition of ``Waters of the United States'' under the
Clean Water Act on April 21, 2014 (see 79 FR 22188).
EPA recognizes that some impoundments may be man-made waterbodies
that support artificially managed and stocked fish populations. As a
result, EPA has included a provision in today's final rule to allow the
Director to waive certain permit application requirements for such
facilities. Note, however, that these facilities are still subject to
the final rule.
EPA acknowledges that the point of compliance for facilities
located on
[[Page 48308]]
impoundments may also vary depending on where the facility withdraws
from a water of the United States. Again, only cooling water systems
with withdrawals of cooling water from waters of the United States are
covered by section 316(b) and today's rule. Because a facility may
withdraw cooling water from a water of the United States either
directly or as makeup water for a closed-cycle cooling system, the
Director may determine where within a facility's cooling water intake
structure is or are the facility's point or points of compliance.
The Agency recognizes that some facilities that have or are
required to have an NPDES permit might not own and operate the intake
structure that supplies their facility with cooling water. In
addressing facilities that have or are required to have an NPDES permit
that do not directly control the intake structure that supplies their
facility with cooling water, Sec. 125.91 provides (similar to the new
facility rule) that facilities that obtain cooling water from a public
water system, use reclaimed water from a wastewater treatment facility
or desalinization plant, or use treated effluent are not deemed to be
using a cooling water intake structure for purposes of this rule.
However, obtaining water from another entity that is withdrawing water
from a water of the United States will be counted as using a cooling
water intake structure for purposes of determining whether an entity
meets the threshold requirements of the rule. For example, facilities
operated by separate entities might be located on the same, adjacent,
or nearby property. One of these facilities might take in cooling water
and then transfer it to other facilities that discharge to a water of
the United States. Section 125.91(b) specifies that use of a cooling
water intake structure includes obtaining cooling water by any sort of
contract or arrangement with one or more independent suppliers of
cooling water if the supplier or suppliers withdraw water from waters
of the United States but that is not itself a new or existing facility
subject to CWA section 316(b), except if it is a public water system, a
wastewater treatment facility or desalination plant providing reclaimed
water, or a facility providing treated effluent for reuse as cooling
water pursuant to Sec. 125.91(c).
As a practical matter, the existing facilities subject to this rule
are the largest users of cooling water and therefore typically withdraw
volumes of water for cooling that warrant owning the cooling water
intake structures. In some cases, such as at nuclear power plants or
critical baseload facilities, the need for cooling water includes
safety and reliability reasons that would likely preclude any
independent supplier arrangements. Therefore, EPA expects this
provision will have only limited applicability. EPA is nevertheless
retaining the provision to prevent facilities from circumventing the
requirements of today's rule by creating arrangements to receive
cooling water from an entity that is not itself subject to today's rule
and that is not otherwise explicitly exempt from today's rule (such as
drinking water or treatment plant discharges reused as cooling water).
H. What intake flow thresholds result in an existing facility being
subject to the final rule?
EPA determines the cooling water flow at a facility in two ways.
The first is based on the DIF, which reflects the maximum intake flow
the facility is capable of withdrawing. While this normally is limited
by the capacity of the cooling water intake pumps, other parts of the
cooling water intake system could impose physical limitations on the
maximum intake flow the facility is capable of withdrawing. The second
method for determining cooling water flow is based on the AIF, which
reflects the actual volume of water withdrawn by the facility. EPA has
defined AIF to be the average water withdrawn each year over the
preceding three years.\7\ Both of these methods are used in today's
rule.
---------------------------------------------------------------------------
\7\ For permit terms subsequent to the first permit issued under
today's rule, the rule defines AIF as the average flows over the
previous 5 years.
---------------------------------------------------------------------------
Today's final rule applies to facilities that have a total DIF of
greater than 2 mgd (see Sec. 125.91).\8\ At a threshold of 2 mgd,
today's rule covers 99.8 percent of the total water withdrawals by
utilities and other industrial sources (if the other criteria for
coverage are met), which includes 70 percent of manufacturing
facilities and 87 percent of electric generators. EPA also chose the
greater than 2 mgd threshold because it was consistent with the
applicability criteria in the Phase I rule.\9\
---------------------------------------------------------------------------
\8\ The 2004 Phase II rule would have applied to existing power-
generating facilities with a design intake flow of 50 mgd or
greater. Facilities potentially regulated by the Phase III rule had
a DIF of greater than 2 mgd.
\9\ For more information, see 65 FR 49067, August 10, 2000.
---------------------------------------------------------------------------
There are substantial environmental benefits that will accrue with
a threshold of 2 mgd. For example, EPA's analysis indicates that
greater than 82 percent of impinged fish mortality across all
facilities would be prevented by this rule at this threshold. EPA also
considered a threshold of 50 mgd. The record includes 38 studies
documenting IM at more than 40 facilities with flows lower than 50 mgd.
Further, the industry questionnaire demonstrates that such facilities
are twice as likely to have no controls in place for impingement or
entrainment than are facilities with intake flows greater than 50 mgd.
In addition, lower intake flow facilities can have similar impacts to
those of larger flow facilities as sizable numbers of fish are impinged
by lower flow facilities. Moreover, site-specific impacts of lower flow
facilities may be significant, particularly where threatened or
endangered species are present.
Although smaller flow facilities (those less than 50 mgd)
constitute a large proportion of the total number of the facilities
regulated (476 of 1,065), the total compliance cost for these smaller
facilities are only a small portion of the total compliance cost of the
rule ($23 million of $275 million). Thus any perceived aggregate cost
savings from setting the threshold higher than 2 mgd would be minimal.
There is no appreciable difference in the cost effectiveness of the
rule with a higher applicability threshold. For example, the cost
effectiveness of the rule with a threshold of 2 mgd is $0.42 per age-
one equivalent losses (A1E). At a threshold of 50 mgd the cost
effectiveness would be $0.41 per A1E. In addition, the incremental cost
of the 2 mgd threshold relative to a 50 mgd threshold is negligible for
the electric power industry at less than 0.1 percent of annual
electricity sector revenue, which exceeds $126 billion. The facility-
level impacts are negligible to zero at either 2 or 50 mgd threshold.
At the 2 mgd threshold, only 5 (1 percent) of the manufacturing
facilities have a cost-to revenue ratio exceeding 1 percent (but less
than 3 percent). While this drops to zero facilities at the 50 mgd
threshold, the difference of 5 facilities out of 509 facilities is not
significant. Costs for lower flow facilities are so small that the
average annual household utility bill would not measurably decrease by
changing the threshold from 2 to 50 mgd. While 58 percent of the small
facilities affected by the final rule are below 50 mgd, 40 percent of
them already meet one of the compliance alternatives for impingement
mortality of the rule and likely would not need to install any
additional compliance technologies. And small businesses account for
only 17 percent of facilities at or below 50 mgd, demonstrating that
there would
[[Page 48309]]
not be a disproportionate impact on small businesses at a 2 mgd
threshold.
Thus, EPA concluded that the threshold of 2 mgd ensures that the
users of cooling water causing the most adverse environmental impact
are subject to the rule. Raising the threshold for applicability of the
rule's impingement and entrainment requirements to 50 mgd as some
commenters suggested was not supportable given the statistics and
information described above.
Raising the applicability threshold to 50 mgd would have meant that
476 facilities, almost half of the 1,065 facilities subject to the
national standards set by today's rule, would not be subject to the
rule. Ignoring so many facilities when setting national standards fails
to apply the common sense approaches set forth in this rule for
minimizing adverse environmental impacts from cooling water intake
structures.
Excluding such a large number of facilities from this rule would
create regulatory uncertainty for those facilities since they would
remain subject to CWA permitting requirements, but without the benefits
of the structure of this rule. Directors would have an obligation to
establish controls on a case-by-case basis for these lower flow
facilities using a BPJ analysis instead of using the more
straightforward and transparent provisions of setting controls based on
national standards contained in this rule. Such BPJ analyses can be
uncertain, and can be time consuming and complex to develop for both
Directors and owners and operators of facilities. Case-by-case BPJ
permits (instead of permits based on the national standards in today's
rule) would likely increase the time and costs to states for such
permits to be developed, further delaying the minimization of adverse
environmental impacts called for by CWA section 316(b). Maintaining an
applicability threshold of 2 mgd DIF best combines the shared goals of
minimizing adverse environmental impacts as required by the CWA, and
the predictability and flexibility contained in the rule.
EPA acknowledges that there may be circumstances where flexibility
in the application of the rule may be called for and the rule so
provides. For example, some low flow facilities that withdraw a small
proportion of the mean annual flow of a river may warrant special
consideration by the Director. As an illustration, if a facility
withdraws less than 50 mgd AIF, withdraws less than 5 percent of mean
annual flow of the river on which it is located (if on a river or
stream), and is not co-located with other facilities with CWISs such
that it contributes to a larger share of mean annual flow, the Director
may determine that the facility is a candidate for consideration under
the de minimis provisions contained at Sec. 125.94(c)(11). In the case
of facilities on lakes and reservoirs, co-location would be better
determined by multiple CWIS facilities on the same waterbody, rather
than distance.
In either case, the flexibilities contained in the rule for the
Director to consider the site-specific characteristics of each intake
structure within the national standard provide a useful mechanism for
facilities with lower intake flows and low impacts to be considered.
EPA is continuing to base applicability on DIF as opposed to AIF
for several reasons. In contrast to AIF, DIF is a fixed value based on
the design of the facility's operating system and the capacity of the
circulating and other water intake pumps. This provides clarity because
the DIF does not vary with facility operations, except in limited
circumstances, such as when a facility undergoes major modifications.
On the other hand, actual flows can vary significantly over sometimes
short periods. For example, a peaking power plant might have an AIF
close to the DIF during times of full energy production, but an AIF of
zero during lengthy periods of standby. Use of DIF provides clarity as
to regulatory status, is indicative of the potential magnitude of
environmental impact, and avoids the need for monitoring to confirm a
facility's status. For more information about these thresholds, see 69
FR 41611, July 9, 2004.
Under this rule, all facilities with a DIF of greater than 2 mgd,
that meet the other three criteria for applicability of today's rule,
must submit basic information describing the facility, Source Water
Physical Data, Source Water Biological Characterization Data, and
Cooling Water Intake System Data. In addition, these facilities must
submit additional facility-specific information including the selected
impingement compliance option, and operational status of each of the
facility's units.\10\ Certain facilities withdrawing the largest
volumes of water for cooling purposes have additional information and
study requirements such as relevant biological survival studies and the
entrainment study as described below.
---------------------------------------------------------------------------
\10\ The final rule allows the Director to waive certain
information submission requirements for facilities that already
employ closed-cycle cooling.
---------------------------------------------------------------------------
The final rule uses AIF rather than DIF for purposes of determining
which facilities must provide the information required in Sec.
122.21(r)(9) through (13), referred to as the entrainment study. Thus,
the rule provides that any facility subject to the rule with actual
flows in excess of 125 mgd must provide an entrainment study with its
permit application (which includes the Entrainment Characterization
Study at Sec. 122.21(r)(9)).\11\ Adverse environmental impacts from
entrainment result from actual water withdrawals, and not the maximum
designed level of withdrawal. Further, using actual flow might
encourage some facilities to adopt operational practices to reduce
their flows below 125 mgd AIF to avoid collecting supplemental data and
submitting the additional entrainment study. Furthermore, any facility
that has DIF greater than 2 mgd, that meets the other three criteria
for applicability of today's rule, is required to submit basic
information that will allow the Director to verify its determination of
whether it meets the 125 mgd AIF threshold.
---------------------------------------------------------------------------
\11\ For impoundments constructed in uplands or not in waters of
the United States, the point of compliance for measuring AIF to
determine if it is greater than 125 mgd is the intake into the
impoundment from the waters of the United States.
---------------------------------------------------------------------------
EPA has selected an administrative threshold of 125 mgd AIF for
submission of the entrainment study because this threshold will capture
90 percent of the actual flows but will apply to only 30 percent of
existing facilities. Further, based on EPA's data there are no closed-
cycle recirculating systems in use above this threshold. The 125 mgd
AIF threshold will significantly limit facility burden at more than
two-thirds of the potentially affected facilities while focusing the
Director on major cooling water withdrawals. Contrary to a number of
public comments, however, EPA is not implying or concluding that the
125 mgd threshold is an indicator that facilities withdrawing less than
125 mgd are (1) not causing any adverse impacts or (2) automatically
qualify as meeting BTA. In other words, the threshold, while justified
on a technical basis, does not result in exemptions from the rule.
Instead, EPA is making a policy decision as to which facilities must
provide a certain level and type of information. The Director, of
course, will retain the discretion to require reasonable information to
make informed decisions at the smaller facilities. The 125 mgd
threshold focuses on the facilities with the highest intake flows and
the highest likelihood of causing adverse impacts; it is not an
[[Page 48310]]
indicator that facilities under that threshold are no longer of concern
in the final rule.
In today's rule, EPA seeks to clarify that for some facilities, the
DIF is not necessarily the maximum flow associated with the intake
pumps. For example, a power plant might have redundant circulating
pumps, or might have pumps with a name plate rating that exceeds the
maximum water throughput of the associated piping. EPA intends for the
DIF to reflect the maximum rate at which a facility can physically
withdraw water from a source waterbody (usually normalized to a daily
rate in mgd). This also means that a facility that has permanently
taken a pump out of service should be able to consider such constraints
when reporting its DIF, as the facility's capacity to withdraw water
may have fundamentally changed. Additionally, if a facility's flow is
limited by constrictions in the piping or other physical limitations
(e.g., a given portion of its cooling system that can only safely
handle a given amount of flow) and that flow is lower than the DIF for
the pumps, the facility should be able to consider such constraints
when reporting its DIF, because it is not capable of withdrawing its
full pumping DIF without compromising the cooling system.
I. What are the requirements for existing offshore oil and gas
facilities, offshore seafood processing facilities or LNG terminals BTA
requirements under the final rule?
Under today's rule, existing offshore oil and gas facilities,
existing offshore seafood processing facilities and existing LNG
terminals will be subject to section 316(b) requirements on a BPJ
basis. In the Phase III rule, EPA studied offshore oil and gas
facilities and offshore seafood processing facilities \12\ and could
not identify any technologies (beyond the protective screens already in
use) that are technically feasible for reducing impingement or
entrainment in such existing facilities.\13\ As discussed in the Phase
III rule, known technologies that could further reduce impingement or
entrainment would result in unacceptable changes in the envelope of
existing platforms, drilling rigs, mobile offshore drilling units,
offshore seafood processing facilities, and similar facilities as the
technologies would project out from the hull, potentially decrease the
seaworthiness, and potentially interfere with structural components of
the hull. It is also EPA's view that for many of these facilities, the
cooling water withdrawals are most substantial when the facilities are
operating far out at sea and, therefore, not withdrawing from a water
of the United States. EPA is aware that LNG facilities may withdraw
hundreds of million gallons per day of seawater for warming (re-
gasification). However, some existing LNG facilities might still
withdraw water where 25 percent or more of the water is used for
cooling purposes on an actual intake flow basis. EPA has not identified
a uniformly applicable and available technology for minimizing
impingement mortality and entrainment at these facilities. However,
technologies might be available for some existing LNG facilities. LNG
facilities that withdraw any volume of water for cooling purposes will
be subject to site-specific, BPJ determinations of BTA.
---------------------------------------------------------------------------
\12\ EPA studied naval vessels and cruise ships as part of its
developing a general NPDES permit for discharges from oceangoing
vessels. (For more information, see https://cfpub.epa.gov/npdes/home.cfm?program_id=350.) EPA studied offshore seafood processing
facilities and oil and gas exploration facilities in the 316(b)
Phase III rule.
\13\ As discussed in today's preamble, requirements for new
offshore facilities that were set forth in the Phase III rule remain
in effect.
---------------------------------------------------------------------------
EPA has not identified any new data or approaches that would result
in a different determination. Therefore, EPA has adopted the approach
of the proposed rule and is requiring that NPDES Permit Directors, on a
case-by-case basis using BPJ, determine BTA for existing offshore oil
and gas extraction facilities, existing offshore seafood processing
facilities, and existing LNG terminals.
J. What is a ``new unit'' and how are new units addressed under the
final rule?
Today's rule establishes requirements for new units at an existing
facility that are different than those applicable to existing units at
an existing facility. The requirements for new units at existing
facilities are modeled after the requirements for a new facility in the
Phase I rule. Under today's rule, a new unit means a newly built,
stand-alone unit, whose construction begins after the effective date of
the rule. EPA is also clarifying that while Phase I does not include
units newly constructed at an existing facility for the same general
industrial operation, such units do constitute a new unit at existing
facilities and, as such, are subject to today's final rule.
On the basis of the public comments received on how to define ``new
unit,'' EPA provides a clear definition for this term in the final
rule. The definition for a new unit at an existing facility establishes
a clear regulatory framework for both affected facilities and
Directors. This definition captures facilities that are undergoing
major construction projects involving the construction of a new stand-
alone unit, while not discouraging upgrades. For example, a nuclear
facility conducting a measurement uncertainty capture or a stretch
power uprate, or a fossil-fuel facility repowering an existing
generating unit, would not be considered to result in the relevant unit
becoming a new unit. As another example, under this definition placing
an offshore facility or vessel into a dry dock for maintenance or
repair does not result in either the offshore facility, vessel, or the
dry dock as being defined as a new unit.
Section VI discusses EPA's rationale for establishing the
definitions for new units at existing facilities described below.
1. Electric Generators
The final rule defines a new unit at an existing facility as a
newly built, stand-alone unit that is constructed at an existing
facility and that does not meet the definition of a new facility. An
existing unit that is repowered or undergoes significant modifications
(such as where the turbine and condenser are replaced) is not
considered a new unit. Exhibit I-4 below provides several examples and
whether these hypothetical units will be defined as new or existing
units.
Exhibit I-4--Examples of New and Existing Units at Existing Electric
Generation Facilities
------------------------------------------------------------------------
Examples of new units at an existing
facility Examples of existing units
------------------------------------------------------------------------
A unit that is constructed at a stand- A unit that is repowered or
alone location at an existing facility undergoes significant
regardless of any plans to retire any modifications.
other unit at the facility in the
future.
A retrofitted with a new boiler
or fuel type.
------------------------------------------------------------------------
[[Page 48311]]
2. Manufacturers
At manufacturing facilities that generate electricity onsite, the
previous discussion of how to define new units at existing electric
generating facilities generally applies. Some manufacturers employ
different industrial processes than an electric generator and therefore
have different industrial equipment (including cooling systems). In
particular, manufacturers may not use a steam condenser or steam
turbine for their industrial processes, making the definition for
``repowering'' above inappropriate for manufacturing facilities.
However, manufacturers may have opportunities to reuse cooling water
that power plants do not, and in site visits, EPA found many
manufacturers have conducted energy and water audits resulting in
significant reductions in water withdrawals. The final rule provides
for manufacturers to receive credit for such reductions in fresh water
withdrawals.
It is not as easy to identify a similar conceptual approach for
defining new manufacturing units at existing manufacturing facilities
because waste heat can be generated from a variety of sources including
exothermic processes, product heating and cooling, and the processing,
handling, treating, or disposal of feed streams, waste streams, by-
products, and recycled components. Sources may include direct cooling
transferred across an inert material (e.g., heat exchanger, steam
condenser), indirect cooling using a working fluid (e.g., chillers,
refrigeration), or contact cooling where cooling water comes into
direct contact with a product or process stream.\14\ Unlike electric
generating units where the majority of cooling water comes from a
single process source (the steam condenser), manufacturing units may
include many separate non-contact or contact cooling water sources
dispersed throughout the production processes and the facility. Thus, a
definition for manufacturing units must take into consideration a
broader category of cooling water sources.
---------------------------------------------------------------------------
\14\ Note that EPA did not include the contact cooling category
as part of its analysis of possible closed-cycle recirculating
system requirements but contact cooling water does nonetheless fall
within the definition of cooling water at Sec. 125.92.
---------------------------------------------------------------------------
For power generators, the term ``generating unit'' is quite clear
since there is only one product (electricity), the non-contact cooling
water predominantly comes from one source, and the application of the
term is well understood in the industry. But for some manufacturing
facilities, it may be unclear what constitutes a ``unit'' since
manufacturing processes can involve numerous vertically integrated
processes or production steps that may involve intermediate products.
For example, a unit could encompass an entire series of production
steps (start to finish) or simply the individual steps. Also, there may
be ancillary support equipment that serves various functions and it is
not clear whether this will be considered a unit or part of a unit. For
example, a petroleum refiner will typically include various processes
such as distillation, cracking, hydrotreating, coking, reforming, and
different types of various products. Various intermediate products from
these processes may be directly transported (piped) from one process to
another or stored and some may be sold. And because various
intermediate and final process products may be blended into different
products, differentiating units on a product or intermediate product
basis may not provide clear distinctions.
For these reasons EPA has defined new unit to simply mean a new
stand-alone unit. A new unit may include one or more distinct
production lines that are added to increase product output and operate
parallel to and independently of existing production equipment. A new
unit does not include the replacement or rebuilding of one or more
distinct production lines or distinct processes involving the
replacement of the majority of the waste heat producing equipment that
serves as sources of non-contact cooling water and the majority of the
heat exchanging equipment that contributes heat to the non-contact
cooling water. Such modifications alone do not render the unit a new
unit. A unit undergoing such modifications would continue to be
considered an existing unit and would be regulated under the existing
unit provisions of this rule. This definition therefore does not impose
any disincentives for the replacement/upgrade of individual components
or ancillary equipment alone.
Exhibit I-5 below provides several examples of whether these
hypothetical units are defined as new or existing units. As noted
above, the Director has broad discretion to assess the scope of any
modifications at the manufacturing facility and to determine whether
the new construction comprises a stand-alone unit. For the purposes of
today's final rule, the Director does not need to address whether the
stand-alone unit is for the same general industrial purposes, or
whether the new unit is a replacement unit. The key factors in
assessing whether a unit will be defined as new lies with whether the
construction results in a stand-alone unit.
Exhibit I-5--Examples of New and Existing Units at Manufacturers
------------------------------------------------------------------------
Examples of new units at an existing Examples of existing units at
facility an existing facility
------------------------------------------------------------------------
A unit that is constructed at a stand- A unit where only the waste
alone location at an existing facility heat generating process
(either adjacent to existing units or equipment or the cooling
on newly acquired or developed system equipment is replaced.
property) regardless of any plans to
retire any other unit at the facility
in the future.
A unit that is constructed adjacent to A unit where modifications are
an existing unit for the same made to the waste heat
industrial activity (such as expanding generating process equipment
the production output by building a or the cooling system (e.g.,
second unit as a stand-alone unit next optimization, repairs,
to the existing unit). upgrades to operational
elements).
Replacement or upgrade of
ancillary equipment (e.g.,
pumps, motors, HVAC, etc.).
------------------------------------------------------------------------
K. Amendments Related to the Phase I Rule
EPA is making limited changes to the Phase I rule at 40 CFR Part
125 Subpart I. The changes fall into two categories. The first is
deleting the provision in the Phase I rule that would allow a facility
to demonstrate compliance with the Phase I BTA requirements in whole or
in part through restoration measures. This change responds to the
decision of the U.S. Court of Appeals for the Second Circuit, which
remanded these provisions to EPA because it concluded that the statute
did not authorize
[[Page 48312]]
restoration measures to comply with CWA section 316(b) requirements.
The second category of changes reflects technical corrections or errors
that do not change the substance of the Phase I rule. EPA has not
reopened any other aspects of the Phase I rule other than the
provisions specifically noted here.
1. Restoration Provisions Not Authorized
The Phase I final rule established two compliance tracks. Track I
requires facilities to restrict intake flow and velocity. Track II
gives a facility the option of demonstrating to the Director that the
control measures it employs will reduce the level of adverse
environmental impact to a comparable level to what would be achieved by
meeting the Track I requirements. As part of this demonstration, Track
II originally allowed a facility to make use of restoration measures.
The Comprehensive Demonstration Study allowed a quantitative or
qualitative demonstration that restoration measures would meet, in
whole or in part, the performance levels of Track I. Similarly, the
Verification Monitoring Plan could be tailored to verify that the
restoration measures would maintain the fish and shellfish in the
waterbody at a substantially similar level to that which would be
achieved under Track I. See 66 FR 65280-65281, December 18, 2001.
Upon legal challenge, the Second Circuit Court concluded that EPA
exceeded its authority by allowing new facilities to comply with CWA
section 316(b) through restoration measures, and remanded that aspect
of the rule to EPA. The Supreme Court did not grant the petitions for
writs of certiorari concerning restoration provisions. Today's final
rule amends Phase I to remove those provisions in Sec. Sec. 125.84(d)
and 125.89(b)(1)(ii) authorizing restoration measures in conformance
with the Second's Circuit's decision. Today's rule also specifically
deletes permit application requirements contained in the Comprehensive
Demonstration Study at Sec. 125.86(c)(2)(ii); evaluation of proposed
restoration measures at Sec. 125.86(c)(2)(iv)(C); and verification
monitoring requirements at Sec. 125.86(c)(2)(iv)(D)(2) that are
specific to restoration. EPA acknowledges these changes might reduce
the alternatives available to some Phase I facilities. EPA notes,
however, that the deletion of restoration measures does not otherwise
alter the availability of Track II. In any event, EPA's determination
of BTA for Phase I did not presume reliance on the restoration
provisions, and the deletion of restoration measures in no way alters
the Agency's BTA determination for Phase I facilities.
2. Corrections to Subpart I
Today's final rule changes the applicability of the technical
requirements at Sec. 125.84 and permit application requirements at
Sec. 125.86 statement to match the applicability statement at Sec.
125.81(a)(3). The applicability in all three instances should specify
DIF or withdrawals ``greater'' than the specified value of 2 mgd. See
Basis for the Final Regulation at 66 FR 65270, December 18, 2001.
Today's rule also corrects the source waterbody flow information
submission requirements. Track I requirements at Sec. 125.84(b)(3)
apply to new facilities that withdraw equal to or greater than 10 mgd.
Track I requirements at Sec. 125.84(c)(2) apply to facilities that
withdraw less than 10 mgd. The source waterbody flow information under
Sec. 125.86(b)(3) requires a facility to demonstrate it has met the
flow requirements of both Sec. Sec. 125.84(b)(3) ``and'' 125.84(c)(2).
However, a facility cannot be subject to both Sec. Sec. 125.84(b)(3)
and 125.84(c)(2) at the same time. Accordingly, the word ``and'' should
read as ``or'' in Sec. 125.86(b)(3).
In addition, today's final rule corrects the permit application
requirement for the Source Water Biological Characterization at Sec.
122.21(r)(4). Accordingly, references to the Source Water Biological
Characterization should read as (r)(4). However, the references to the
Source Water Biological Characterization at Sec. 125.86(b)(4)(iii), at
Sec. 125.87(a), and at Sec. 125.87(a)(2) incorrectly refer to Sec.
122.21(r)(3) and are thus being corrected.
II. Legal Authority for and Background of the Final Regulation
A. Legal Authority
Today's final rule is issued under the authority of Clean Water Act
sections 101, 301, 304, 308, 316, 401, 402, 501, and 510, 33 U.S.C.
1251, 1311, 1314, 1318, 1326, 1341, 1342, 1361, and 1370.
B. Purpose of the Regulation
The purpose of today's rule is to reduce impingement and
entrainment of fish, shellfish and other aquatic organisms at cooling
water intake structures. Today's rule establishes national requirements
for cooling water intake structures at existing facilities under
section 316(b) of the CWA. That section provides that any standard
established pursuant to CWA sections 301 or 306 and applicable to a
point source must require that the location, design, construction, and
capacity of cooling water intake structures reflect the BTA for
minimizing adverse environmental impact. Today's rule establishes
requirements applicable to all existing power-generating facilities and
existing manufacturing and industrial facilities that are point
sources, that have a DIF of greater than 2 mgd from waters of the
United States, and use at least 25 percent of the water they withdraw
exclusively for cooling purposes on an actual intake flow basis. In
addition, EPA is today also making minor changes to its earlier rule
establishing section 316(b) requirements for new facilities.
Specifically, EPA is removing a provision that would have allowed a
restoration-based alternative for complying with performance standards
as well as the associated monitoring and other requirements for
demonstrating compliance.
C. Background
1. The Clean Water Act
a. General
The Federal Water Pollution Control Act, also known as the CWA, 33
U.S.C. 1251 et seq., seeks to ``restore and maintain the chemical,
physical, and biological integrity of the nation's waters.'' 33 U.S.C.
1251(a). Among the goals of the Act is, wherever attainable, an interim
goal of water quality which provides for the protection and propagation
of fish, shellfish, and wildlife and provides for recreation in and on
the water. 33 U.S.C. 1251(a)(2).
In furtherance of these objectives, the CWA establishes a
comprehensive regulatory program, key elements of which are (1) a
prohibition on the discharge of pollutants from point sources to waters
of the United States, except in compliance with the statute and (2)
authority for EPA or authorized States or Tribes to issue NPDES permits
that authorize and regulate the discharge of pollutants.
CWA section 402 authorizes EPA (or an authorized State or Tribe) to
issue an NPDES permit to any person discharging any pollutant or
combination of pollutants from a point source into waters of the United
States. Forty-six States and one U.S. territory are authorized under
section 402(b) to administer the NPDES permitting program. NPDES
permits restrict the types and amounts of pollutants, including heat,
that may be discharged from various industrial, commercial, and other
sources of wastewater. These permits control the discharge of
pollutants by requiring dischargers to meet technology-based and
possibly water-quality-based effluent limitations.
[[Page 48313]]
Under section 316(b), NPDES permits are required to contain conditions
to implement the requirements of section 316(b).
CWA section 510 provides that, except as provided in the CWA,
nothing will preclude or deny the right of any State (or political
subdivision thereof) to adopt or enforce any requirement respecting
control or abatement of pollution; except that if a limitation,
prohibition or standard of performance is in effect under the CWA, such
State may not adopt any other limitation, prohibition, or standard of
performance which is less stringent than the limitation, prohibition,
or standard of performance under the Act. EPA interprets this to
reserve for the States authority to implement requirements that are
more stringent than the Federal requirements under state law. PUD No. 1
of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 705
(1994). New York and California have enacted State requirements that
are at least as stringent as those of the final rule, and therefore,
EPA has analyzed facilities in those States that are subject to those
State requirements as already complying with the final rule.\15\ Those
facilities still must comply with the administrative requirements of
the final rule.
---------------------------------------------------------------------------
\15\ For example, California policy addressing 19 coastal power
plants would not affect the compliance costs of inland facilities.
---------------------------------------------------------------------------
CWA sections 301, 304, and 306 require that EPA develop technology-
based effluent limitations guidelines and new source performance
standards that are used as the basis for discharge requirements in
wastewater discharge permits. EPA develops these effluent limitations
guidelines and standards for categories of industrial dischargers on
the basis of the pollutants of concern discharged by the industry, the
degree of control that can be attained using various levels of
pollution control technology appropriate for each industrial process or
subcategory, consideration of various economic tests implemented under
the authority of the CWA for each level of control, and other factors
identified in CWA sections 304 and 306 (such as non-water quality
environmental impacts including energy impacts). EPA has promulgated
regulations setting effluent limitations guidelines and standards under
CWA sections 301, 304, and 306 for 57 industry categories. See 40 CFR
parts 405 through 471. EPA has established effluent limitations
guidelines and standards that apply to the industry categories that are
the largest users of cooling water (e.g., steam electric power
generation, paper and allied products, petroleum refining, iron and
steel manufacturing, and chemicals and allied products), as well as
many other industrial categories that may include facilities subject to
this final rule.
b. Section 316(b)
Section 316(b) states, in full,
Any standard established pursuant to section 301 or section 306
of [the Clean Water] Act and applicable to a point source shall
require that the location, design, construction, and capacity of
cooling water intake structures reflect the best technology
available for minimizing adverse environmental impact.
33 U.S.C. 1326(b). This provision is unique among CWA provisions
because it addresses the adverse environmental impact caused
specifically by the intake of cooling water, in contrast to other
provisions of the Act that regulate the discharge of pollutants into
waters of the United States.
The CWA does not further define the substantive standard specified
in section 316(b)--``best technology available for minimizing adverse
environmental impact'' (BTA). 33 U.S.C. 1326(b). The standard that
cooling water intake structures must achieve under section 316(b)--
BTA--is a different standard from those prescribed under sections 301
and 306 of the Act. Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir.
2004). Moreover, unlike sections 304 and 306, section 316(b) does not
set forth the specific factors that the EPA must consider in
determining BTA. BTA is ``the only substantive statutory requirement
explicitly applicable to the intake structure regulations.'' Id. at
186. Unlike other provisions of the Act, section 316(b) standards are
not subject to a ``host'' of other requirements or limitations. Ibid.
There is no ``elucidating language applicable to the BTA test.''
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 221 (2009).\16\
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\16\ Included in an appendix to the decision is a table
comparing CWA statutory standards under 301, 306 and 316(b), the
table. In the column headed ``Statutorily Mandated Factors,'' for
section 316(b), the table states ``N/A.''
---------------------------------------------------------------------------
Section 316(b) does, however, cross-reference sections 301 and 306
of the CWA by stating that any standards established pursuant to those
sections also require that cooling water intake structures reflect BTA.
Ibid. This cross reference, in the view of the Second Circuit, is an
invitation, not a straitjacket. EPA ``may'' look to the referenced
sections in discerning what factors Congress intended EPA to consider
in determining BTA.
Because section 316(b) refers to sections 301 and 306 but
provides a different standard (``best technology available for
minimizing adverse environmental impact'' instead of, for example,
``best available demonstrated control technology'') and does not
explicitly provide that regulations pursuant to section 316(b) are
subject to the requirements of sections 301 and 306, we think it is
permissible for the EPA to look to those sections for guidance but
to decide that not every statutory directive contained therein is
applicable to the Rule.
The terse statutory description of BTA and the absence of any
prescribed statutory factors for consideration in determining BTA
suggest that Congress delegated EPA significant rulemaking discretion
in this area.\17\
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\17\ The Second Circuit has noted the limited legislative
history for section 316(b). ``This paucity of legislative history,
when measured against the volumes of drafts and speeches devoted to
other aspects of the 1972 amendments, and when combined with the
brevity of the provision itself, counsels against imputing much
specific intent to Congress beyond the section's words themselves.
To the extent the provision is silent on issues to which other
sections speak, we hesitate to draw the negative inference that the
brevity of section 316(b) reflects an intention to limit the EPA's
authority rather than a desire to delegate significant rulemaking
authority to the Agency.'' Id. at 187.
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As noted, in contrast to effluent limitations guidelines and
standards, the CWA does not describe the factors to be considered in
establishing section 316(b) substantive performance requirements that
reflect the ``best technology available for minimizing adverse
environmental impact'' nor does it require that EPA develop uniform
nationally applicable performance requirements through rule making.
The U.S. Supreme Court has, however, recently provided guidance, in
Entergy Corp. v. Riverkeeper, Inc., in interpreting section 316(b) and
what factors EPA may consider in its standard-setting. That decision
addressed the question of whether CWA section 316(b) authorizes EPA to
compare costs and benefits of various technologies when setting
national performance standards for cooling water intake structures
under CWA section 316(b). In overturning EPA's earlier rule to
establish section 316(b) requirements for existing facilities, the
Second Circuit held that balancing costs and benefits was an
impermissible factor for standard setting under section 316(b). The
Supreme Court reversed and remanded the Second Circuit ruling in a 6-3
opinion authored by Justice Scalia. The Court held that it is
permissible for EPA to consider a cost-benefit analysis in setting
national performance standards for cooling water intake structures
under section 316(b).
[[Page 48314]]
The Court held that EPA has the discretion to consider costs and
benefits under section 316(b) but is not required to do so. 556 U.S.
208, 222-23.
The Court's discussion of the language of section 316(b)--section
316(b) is ``unencumbered by specified statutory factors''--and its
critique of the Second Circuit's decision affirms EPA's broad
discretion to consider a number of factors in standard setting under
section 316(b). While the Supreme Court's decision is limited to
whether or not EPA may properly consider one factor (cost/benefit
analysis) under section 316(b), the language also indicates that EPA
has wide discretion in considering other factors that it deems relevant
to 316(b) standard setting. 556 U.S. 208, 222 (2009). (``It is
eminently reasonable to conclude that Sec. 1326b's silence is meant to
convey nothing more than a refusal to tie the agency's hands as to
whether cost-benefit analysis should be used, and if so to what
degree.'').
Regarding the other factors EPA may, but is not mandated to,
consider, as noted above, section 316(b) cross references CWA sections
301 and 306 by requiring that any standards established pursuant to
those sections also must require that the location, design,
construction and capacity of intake structures reflect BTA. Following
the decisions of the Second Circuit in reviewing both the Phase I and
Phase II rules, EPA has interpreted the cross reference as authorizing
consideration of the factors considered under those provisions to help
guide section 316(b) rulemaking without determining that each of those
factors is applicable to this rule. Thus, for example, section 306
directs EPA to establish performance standards for new sources based on
the BADT (best available demonstrated control technology). 33 U.S.C.
1316(a)(1). In establishing BADT, EPA ``shall take into consideration
the cost of achieving such effluent reduction, and any non-water
quality environmental impact and energy requirements.'' 33 U.S.C.
1316(b)(2)(B).
Similarly, CWA section 301 requires EPA, in establishing standards
known as effluent limitations guidelines, to consider specified
factors. For a complete discussion of factors considered in
establishing section 301 effluent limits, see 76 FR 22178-22179, April
20, 2011. But, EPA in establishing section 316(b) standards is not
constrained in what factors it considers or bound by any statutorily
prescribed tests as is the case with sections 301 and 306.
Consequently, while section 316(b) expressly refers to section 301 and
306, and, while it shares some of the same words used in sections
301(b) and 306, its language is different.\18\ These differences in the
statutory descriptions, coupled with the brevity of section 316(b)
itself, prompt EPA to examine the factors described in section 301, 306
and, ultimately, section 304 where relevant in EPA's determination of
the ``best technology available to minimize adverse environmental
impact'' of cooling water for intake structures for existing
facilities.
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\18\ Compare ``best technology available for minimizing adverse
environmental impacts'' with ``best practicable control technology
currently available'' (301(b)(1)A)), ``best conventional pollutant
control technology (301(b)(2)(E)), ``best available technology
economically achievable'' (301(b)(2)(A)), and best available
demonstrated control technology, (306(b)(1)(B)). Section 316(b),
section 301(b)(1)(A)--the BPT provision--section 301(b)(2)(E)--the
BCT provision--section 301(b)(1)(B)--the BAT provision--and section
306(b)(2)(E). All include the terms ``best,'' ``technology,'' and
``available,'' but none also include the modifying phrase ``for
minimizing adverse environmental impacts,'' found in section 316(b).
See 33 U.S.C. 1311(b)(1)(A) and (2)(A).
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As noted above, there are significant differences between section
316(b) and sections 301, 304 and 306. See Riverkeeper, Inc. v. United
States Environmental Protection Agency (2nd Cir. Feb. 3, 2004) (``not
every statutory directive contained [in sections 301 and 306] is
applicable'' to a section 316(b) rulemaking). Moreover, as the Supreme
Court recognized, while the provisions governing the discharge of toxic
pollutants must require the elimination of discharges if technically
and economically achievable, section 316(b) has the less ambitious goal
of ``minimizing adverse environmental impact.'' 556 U.S. at 219. In
contrast to the effluent limitations provisions, the object of the best
technology available is explicitly articulated by reference to the
receiving water: To minimize adverse environmental impact in the waters
from which cooling water is withdrawn. This difference is reflected in
EPA's past practices in implementing sections 301, 304, as contrasted
with 316(b). For example, EPA has established BAT effluent limitations
guidelines and new source performance standards on the basis of the
efficacy of one or more technologies to reduce pollutants in wastewater
in relation to their costs without necessarily considering the impact
on the receiving waters. This contrasts to 316(b) requirements which
historically have been developed on a site-specific basis, where EPA
has considered the costs of technologies in relation to the benefits of
minimizing adverse environmental impact in establishing 316(b)
requirements. In Re Public Service Co. of New Hampshire, 10 ERC 1257
(June 17, 1977); In Re Public Service Co. of New Hampshire, 1 EBAD 455
(Aug. 4, 1978); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 306
(1st Cir. 1979). EPA concluded that, because both section 301 and 306
are expressly cross-referenced in section 316(b), EPA could reasonably
interpret section 316(b) as authorizing consideration, where
appropriate, of the same factors, including costs. EPA stresses that it
may therefore consider some of the same factors, even if it is not
legally required to consider them in the same way.
2. Early Litigation History
On January 19, 1993, a group of individuals and environmental
organizations \19\ filed, under CWA section 505(a)(2), 33 U.S.C.
1365(a)(2), a complaint in Cronin, et. al. v. Reilly, 93 Civ. 314 (LTS)
(S.D.N.Y.). The plaintiffs alleged that EPA had failed to perform a
nondiscretionary duty to issue regulations implementing CWA section
316(b), 33 U.S.C. 1326(b). In 1995, EPA and the plaintiffs executed a
consent decree in the case. As amended, it provided for EPA to
implement CWA section 316(b) by prescribed dates in the three separate
rule-making proceedings. Phase I concerned cooling water intake
structures at new facilities, Phase II existing power plants using
large volumes of cooling water and Phase III for existing smaller-flow
power plants and factories in at least four industrial sectors (pulp
and paper making, petroleum and coal products manufacturing, chemical
and allied manufacturing, and primary metal manufacturing). EPA
promulgated the Phase I rule in December, 2001, the Phase II rule in
July, 2004 and the Phase III rule in June, 2006.
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\19\ The plaintiffs are the following: Riverkeeper, Inc.; Alex
Matthiessen, a/k/a The Hudson Riverkeeper; Maya K. Van Rossum, a/k/a
The Delaware Riverkeeper; Terrance E. Backer, a/k/a The Soundkeeper;
John Torgan, a/k/a The Narragansett BayKeeper; Joseph E. Payne, a/k/
a The Casco BayKeeper; Leo O'Brien, a/k/a the San Francisco
BayKeeper; Sue Joerger, a/k/a The Puget Soundkeeper; Steven E.
Fleischli, a/k/a The Santa Monica BayKeeper; Andrew Willner, a/k/a
The New York/New Jersey Baykeeper; The Long Island Soundkeeper Fund,
Inc.; The New York Coastal Fishermen's Association, Inc.; and The
American Littoral Society, Inc.
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On November 17, 2006, some of the same environmental organizations
in the Cronin case filed a second complaint, amended on January 19,
2007, in Riverkeeper, et al. v. EPA, 06 Civ. 12987 (S.D.N.Y.) asserting
that EPA's Phase III rule failed to discharge EPA's duty under CWA
section 316(b).
On August 14, 2008, EPA filed a motion to terminate the Cronin
proceeding because it had discharged its
[[Page 48315]]
obligations (to take final action) under the decree with respect to the
2004 Phase II and 2006 Phase III rulemakings. Subsequently, EPA entered
into a settlement with the plaintiffs in both lawsuits. Under the
settlement agreement, EPA agreed to sign a notice of a proposed
rulemaking implementing CWA section 316(b) at existing facilities no
later than March 14, 2011, and to sign a notice taking final action on
the proposed rule no later than July 27, 2012. Plaintiffs agreed to
seek dismissal of both their suits, subject to a request to reopen the
Cronin proceeding if EPA failed to meet the agreed deadlines. The
district courts have now entered orders of dismissal. On March 11,
2011, the parties agreed to an amendment to the settlement agreement to
extend the date for proposal to March 28, 2011. On July 17, 2012, the
parties agreed to an amendment to the settlement agreement to extend
the date for the final rule to June 27, 2013. On June 21, 2013, the
parties agreed to extend the date to November 4, 2013, to accommodate
completion of formal consultation under the Endangered Species Act. In
part due to the government shutdown, on November 12, 2013, the parties
agreed to extend the date to January 14, 2014. On February 10, 2014, to
continue progress on the Endangered Species Act (ESA) consultation
process, the parties agreed to extend the date to April 17, 2014.
Finally, on April 23 2014, in a conference with the court EPA informed
the judge that the EPA and the Services would complete the ESA
consultation, so that the EPA would sign the rule by May 16, 2014. The
court entered an order provisionally reinstating the case if EPA failed
to inform the court by May 19, 2014 that it had taken the contemplated
action. On May 19, 2014, the Administrator signed this notice for
publication in the Federal Register.
3. Prior EPA Actions To Address Cooling Water Intake Structures
a. 1976 Rulemaking
In April 1976, EPA promulgated regulations under section 316(b)
that addressed cooling water intake structures. 41 FR 17387, April 26,
1976. The rule added a new Sec. 401.14 to 40 CFR Chapter I that
reiterated the requirements of CWA section 316(b). It also added a new
part 402, which included three sections: (1) Sec. 402.10
(Applicability), (2) Sec. 402.11 (Specialized definitions), and (3)
Sec. 402.12 (Best technology available for cooling water intake
structures). Section 402.10 stated that the provisions of part 402
applied to ``cooling water intake structures for point sources for
which effluent limitations are established pursuant to section 301 or
standards of performance are established pursuant to section 306 of the
Act.'' Section 402.11 defined the terms cooling water intake structure,
location, design, construction, capacity, and Development Document.
Section 402.12 included the following language:
``The information contained in the Development Document shall be
considered in determining whether the location, design,
construction, and capacity of a cooling water intake structure of a
point source subject to standards established under section 301 or
306 reflect the best technology available for minimizing adverse
environmental impact.''
In 1977, electric utility companies challenged those regulations,
arguing that EPA had failed to comply with the requirements of the
Administrative Procedure Act in promulgating the rule. Specifically,
the utilities argued that EPA had violated the Administrative Procedure
Act in promulgating regulations mandating consideration of the
information in the Development Document in establishing 316(b)
conditions in individual NPDES permits because EPA had neither
published the Development Document in the Federal Register nor properly
incorporated the document into the rule by reference. The U.S. Court of
Appeals for the Fourth Circuit agreed. The court determined that the
information in the Development Document was part of the substance of a
regulation imposing specific obligations in mandatory terms. As such,
the information must either be published in the Federal Register in its
entirety or to be reasonably available and properly incorporated by
reference under Federal Register requirements. The court explained it
did not object to site-specific implementation of the section 316(b)
requirements (``[w]hile we emphasize we do not fault EPA for its point
source by point source application''), it did require EPA to ``devise a
less uncertain method of advising those affected of the conditions by
which they are to be bound.'' Appalachian Power Co. v. Train, 566 F.2d
451, 457 (4th Cir. 1977). Without reaching the merits of the
regulations themselves, the court remanded the rule. EPA later withdrew
part 402. (See 44 FR 32956, June 7, 1979.) Section 402.10, however, now
codified at Sec. 401.14, remains in effect.
Following the Fourth Circuit remand of EPA's section 316(b)
regulations in 1977, NPDES permit authorities have made decisions
implementing CWA section 316(b) and Sec. 401.14 without the direction
of a national rule. EPA published draft guidance addressing section
316(b) implementation in 1977. See Draft Guidance for Evaluating the
Adverse Impact of Cooling Water Intake Structures on the Aquatic
Environment: Section 316(b) Public Law 92-500 (U.S. EPA 1977). That
draft guidance describes the studies recommended for evaluating the
impact of cooling water intake structures on the aquatic environment
and recommends a basis for determining the BTA for minimizing adverse
environmental impact. The 1977 section 316(b) draft guidance states,
``[t]he environmental-intake interactions in question are highly site-
specific and the decision as to best technology available for intake
design, location, construction, and capacity must be made on a case-by-
case basis'' (Section 316(b) Draft Guidance, U.S. EPA 1977, p. 4). This
site-specific approach was also consistent with the approach described
in the 1976 Development Document referenced in the remanded regulation.
(See DCN 1-1056-TC from the Phase I docket.) The 1977 section 316(b)
draft guidance suggested a general process for developing information
needed to support section 316(b) decisions and presenting that
information to the Director. The process involved developing a site-
specific study of the environmental effects associated with each
facility that uses one or more cooling water intake structures, and
consideration of that study by the Director in determining whether the
facility must make any changes for minimizing adverse environmental
impact. Under this framework, the Director determined whether
appropriate studies have been performed, whether a given facility has
minimized adverse environmental impact, and what, if any, technologies
may be required.
b. Phase I--New Facility Rule
i. Rulemaking
On November 9, 2001, EPA took final action on regulations governing
cooling water intake structures at new facilities. See 66 FR 65255,
December 18, 2001. On December 26, 2002, EPA made minor changes to the
Phase I regulations. 67 FR 78947. The final Phase I new facility rule
(40 CFR part 125, Subpart I) establishes requirements applicable to the
location, design, construction, and capacity of cooling water intake
structures at new facilities that have a design capacity to withdraw
greater than 2 mgd and use at least 25 percent of the water they
withdraw solely for cooling purposes on an actual intake flow basis.
In the new facility rule, EPA adopted a two-track approach. Under
Track I, facilities that withdraw equal to or
[[Page 48316]]
greater than 10 mgd were required to meet three requirements. First,
the intake flow of the cooling water intake structure is restricted, at
a minimum, to a level commensurate with that which could be attained by
use of a closed-cycle, recirculating cooling system. Second, the design
through-screen intake velocity is restricted to 0.5 fps (foot per
second). Third, the total quantity of intake is restricted to a
proportion of the mean annual flow of a freshwater river or stream, or
to a level necessary to maintain the natural thermal stratification or
turnover patterns (where present) of a lake or reservoir except in
cases where the disruption is beneficial, or to a percentage of the
tidal excursions of a tidal river or estuary. Further, if there are,
for example, endangered or threatened species stressed by a facility's
intake structure, a facility that would otherwise meet the applicable
performance requirements may have to select and implement additional
design and construction or operational measures to address impingement
mortality and entrainment if these measures are inadequate to protect
the species. Facilities with greater than 2 mgd but less than 10 mgd
flows are not required to reduce intake flow to a level commensurate
with a closed-cycle, recirculating cooling system, but they must still
meet specific operational criteria.
Under Track II, a facility had the opportunity to demonstrate to
the NPDES permitting authority (Director) that the technologies it
employs will reduce the level of adverse environmental impact to a
comparable level to what would be achieved by meeting the Track I
requirements for restricting intake flow and velocity. In making this
demonstration, the regulations allow a facility to rely on a
combination of measures in addition to technology controls for reducing
impingement and entrainment to achieve results equivalent to the Track
I intake flow and velocity requirements. Among these measures, the rule
would have allowed restoration of the affected waterbody through
efforts such as restocking fish and improving the surrounding habitat
to offset the adverse effects that would otherwise be caused by
operating the intake structures. The Second Circuit, in reviewing the
new facility rule, determined that section 316(b) did not authorize the
use of restoration measures in complying with the EPA performance
standard. (Note that EPA is removing the provision related to
restoration measures from the CFR in this rulemaking but has included
the above description of the Phase I rule for completeness.) For more
information, see Section I above.
In addition, under the Phase I rule, the Director may establish
less stringent alternative requirements for a facility if compliance
with the Phase I standards would result in compliance costs wholly out
of proportion to those EPA considered in establishing the Phase I
requirements or would result in significant adverse impacts on local
air quality, water resources, or local energy markets.
EPA specifically excluded new offshore oil and gas extraction
facilities from the Phase I new facility rule but committed to consider
establishing requirements for such facilities in the Phase III
rulemaking. 66 FR 65338, December 18, 2001.
ii. Subsequent Litigation
Various environmental and industry groups challenged the Phase I
rule. In February 2004, the Second Circuit sustained the entire rule
except for the restoration provision, ruling that restoration was not a
technology as provided for in section 316(b). With respect to the other
provisions of the rule, the court concluded the Phase I rule was based
on a reasonable interpretation of the applicable statute and
sufficiently supported by the record. Restoration provisions of the
rule were remanded to EPA for further rulemaking consistent with the
court's decision. Riverkeeper, Inc. v. EPA, 358 F.3d 174, 191 (2nd
Cir., 2004). Today's rule removes the restoration provisions from the
Phase I rule. For more details, see Chapter I of this preamble.
c. Phase II--Large Flow Existing Power Plants
i. Rulemaking
On February 16, 2004, EPA took final action on regulations
governing cooling water intake structures at certain existing power-
producing facilities. 69 FR 41576, July 9, 2004. The final 2004 Phase
II rule applied to existing facilities that are point sources; that, as
their primary activity, both generate and transmit electric power or
generate electric power for sale or transmission; that use or propose
to use a cooling water intake structure with a total DIF of 50 mgd or
more to withdraw water from waters of the United States; and that use
at least 25 percent of the withdrawn water exclusively for cooling
purposes on an actual intake flow basis. In addition, power producers
fitting the description above were also subject to the final 2004 Phase
II rule even if they obtain their cooling water from one or more
independent suppliers of cooling water. Such facilities were subject to
the rule if their supplier withdraws water from waters of the United
States even if the supplier was not itself a 2004 Phase II existing
facility. EPA included this provision to prevent circumvention of the
2004 Phase II rule requirements by a facility purchasing cooling water
from entities not otherwise subject to section 316(b).
The final 2004 Phase II rule and preamble also clarified the
definition of an existing power-producing facility. The 2004 Phase II
rule defined an existing facility as ``any facility that commenced
construction as described in Sec. 122.29(b)(4) on or before January
17, 2002; and any modification of, or addition of a unit at such a
facility that does not meet the definition of a new facility at Sec.
125.83.'' Because the definition of the term existing facility was
based in part on the Phase I definition of the term new facility, the
preamble to the final 2004 Phase II rule also clarified and provided
some examples of how the definition of existing facility might apply to
certain changes at power-producing facilities.
Under the 2004 Phase II rule, EPA established BTA performance
standards for the reduction of impingement mortality and, under certain
circumstances, entrainment (see 69 FR 41590-41593, July 9, 2004). The
performance standards consisted of ranges of reductions in impingement
mortality and, if applicable, entrainment (e.g., reduce impingement
mortality by 80 to 95 percent and/or entrainment by 60 to 90 percent)
relative to a calculation baseline that reflected the level of
impingement mortality and entrainment that would occur absent specific
controls. These performance standards were not based on a single
technology but, rather, on consideration of a suite of technologies
that EPA determined were commercially available and economically
achievable for the industries affected as a whole (69 FR 41598-41610,
July 9, 2004). EPA based the impingement mortality and entrainment
performance standards on a suite of technologies because it found no
single technology to be effective at all affected facilities. For
impingement standards, these technologies included the following: (1)
Fine- and wide-mesh wedgewire screens, (2) barrier nets, (3) modified
screens and fish return systems, (4) fish diversion systems, and (5)
fine-mesh traveling screens and fish return systems. With regard to
entrainment reduction, these technologies include the following: (1)
Aquatic filter barrier systems, (2) fine-mesh wedgewire screens, and
(3) fine-
[[Page 48317]]
mesh traveling screens with fish return systems. Because EPA based the
performance standards on a combination of technologies and because of
the uncertainty inherent in predicting the efficacy of one or more of
these technologies as applied to different facilities, EPA promulgated
these standards as ranges. Furthermore, because the site-specific
performance was based on a comparison to a once-through system without
any specific controls on the shoreline near the source waterbody (i.e.,
calculation baseline, for more details see Section III.B.1 of the
preamble to the proposed rule, 76 FR 22185, April 20, 2011), the rule
also allowed facilities to receive credit toward meeting the
performance standards for impingement and entrainment reduction
associated with alternative locations of their intakes (e.g., deep
water where fish and shellfish were less abundant).
The types of performance standard applicable to a facility (i.e.,
reductions in impingement mortality only or both impingement mortality
and entrainment) were based on several factors, including the
facility's location (i.e., source waterbody), rate of use (capacity
utilization rate), and the proportion of the waterbody withdrawn.
The 2004 Phase II rule identified five compliance alternatives to
meet the performance standards. A facility could demonstrate to the
Director one of the following: (1) That it has already reduced its flow
commensurate with a closed-cycle recirculating system (to meet both
impingement mortality and entrainment), or that it has already reduced
its maximum through-screen velocity to 0.5 fps or less (to meet the
impingement performance standard only); (2) that its cooling water
intake structure configuration meets the applicable performance
standards; (3) that it has selected design and construction
technologies, operational measures, and/or restoration measures that,
in combination with any existing design and construction technologies,
operational measures, and/or restoration measures, meet the applicable
performance standards; (4) that it meets the applicability criteria and
has installed and is properly operating and maintaining a rule-
specified and/or approved State-specified design and construction
technology (i.e., submerged cylindrical wedgewire screens) in
accordance with Sec. 125.99(a) or an alternative technology that meets
the appropriate performance standards and is approved by the Director
in accordance with Sec. 125.99(b); or (5) that its costs of compliance
would be significantly greater than either the costs considered by the
Administrator for a like facility to meet the applicable performance
standards, or the benefits of meeting the applicable performance
standards at the facility. Under the cost-cost comparison alternative,
a Director could determine that the cost of compliance for a facility
would be significantly greater than the costs considered by EPA in
establishing the applicable impingement mortality and entrainment
performance standards. Similarly, under the cost-benefit comparison
alternative, a Director could determine that the cost of compliance for
a facility would be significantly greater than the benefits of
complying with the applicable performance standards. If either of these
determinations were made, the Director would have to make a site-
specific determination of BTA for minimizing adverse environmental
impact that came as close as practicable to meeting the applicable
performance standards at a cost that did not significantly exceed
either the costs EPA considered in establishing these standards or the
site-specific benefits of meeting these standards.
The final 2004 Phase II rule also provided that a facility that
chooses specified compliance alternatives might request that compliance
with the requirements of the rule be determined on the basis of
implementing a Technology Installation and Operation Plan (TIOP) that
would indicate how the facility would install and ensure the efficacy,
to the extent practicable, of design and construction technologies,
and/or operational measures, and/or a Restoration Plan. The rule also
established requirements for developing and submitting a TIOP (Sec.
125.95(b)(4)(ii)) and provisions that specified how compliance could be
determined on the basis of implementing a TIOP (Sec. 125.94(d)). Under
these provisions, a TIOP could be requested in the first permit term,
and continued use of a TIOP could be requested where a facility was in
compliance with such plan and/or its Restoration Plan.
ii. Subsequent Litigation
Industry, environmental stakeholders, and some States \20\
challenged many aspects of the 2004 Phase II regulations. On January
25, 2007, the Second Circuit (Riverkeeper, Inc. v. EPA, 475 F.3d 83,
(2d Cir., 2007)) upheld several provisions of the 2004 Phase II rule
and remanded others to EPA for further rulemaking.
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\20\ Rhode Island, Connecticut, Delaware, Massachusetts, New
Jersey, and New York.
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As noted above, for the 2004 Phase II rule EPA did not select
closed-cycle cooling as BTA. Instead, EPA selected a suite of
technologies to reflect BTA, including, for example, screens, aquatic
filter barriers, and barrier nets. According to the chosen
technologies, EPA established national performance standards for
reducing impingement mortality and entrainment of fish and fish
organisms but did not require the use of any specific technology. Among
the aspects of the rule the Second Circuit remanded for further
clarification was EPA's decision to reject closed-cycle cooling as BTA
and EPA's determination of performance ranges as BTA. In addition, the
Second Circuit found that, consistent with its Phase I decision,
restoration was not authorized under the CWA as a technology for BTA
and that EPA's cost-benefit site-specific compliance alternative was
not in accord with the CWA. There are also several issues for which the
court requested additional clarification and some instances where the
court determined that EPA had failed to provide adequate notice and
opportunity to comment on certain provisions of the rule.
iii. Suspension
As a result of the decision in Riverkeeper, Inc. v. EPA, 475 F.3d
83, (2d Cir., 2007), EPA, on July 9, 2007 (72 FR 37107) suspended the
requirements for cooling water intake structures at 2004 Phase II
existing facilities, pending further rulemaking. Specifically, EPA
suspended the provisions in Sec. 122.21(r)(1)(ii) and (r)(5), and part
125 Subpart J, with the exception of Sec. 125.90(b). EPA explained
that suspending the 2004 Phase II requirements was an appropriate
response to the Second Circuit's decision and that such action would
allow it to consider how to respond to the remand. In addition,
suspending the 2004 Phase II rule was responsive to the concerns of the
regulated community and permitting agencies, both of whom sought
guidance regarding how to proceed in light of the approaching deadline
for compliance with the remanded rule. EPA's suspension clarified that
pending further rulemaking, permit requirements for cooling water
intake structures at 2004 Phase II facilities should be established on
a case-by-case, BPJ basis (see Sec. 125.90(b)).
iv. Supreme Court Decision
Following the decision in the Second Circuit, several industry
group litigants
[[Page 48318]]
petitioned the U.S. Supreme Court to hear an appeal regarding several
issues in the case. Entergy Corp. v. Riverkeeper, Inc. et al., S. Ct.
No. 07-588, et al. On April 14, 2008, the Supreme Court granted the
petitions for writs of certiorari submitted by these 2004 Phase II
litigants, but it limited its review to the issue of whether section
316(b) authorizes EPA to compare costs with benefits in determining BTA
for cooling water intake structures. The Supreme Court held oral
arguments in this case on December 2, 2008, and issued a decision on
April 1, 2009. As explained above, the Supreme Court held that it is
permissible for EPA to rely on cost-benefit analysis in decision
making. The court indicated that the phrase ``best technology available
for minimizing adverse environmental impact'' does not unambiguously
preclude use of cost-benefit analysis in decision making. 566 U.S. at
223(2009). The ruling supports EPA's discretion to consider costs and
benefits, but it imposes no obligation on the Agency to do so.
d. Phase III--Existing Power Plants Below 50 mgd, Existing
Manufacturing Facilities, and New Offshore Oil and Gas Facilities
i. Rulemaking
On June 16, 2006, EPA published a final Phase III rule that
established categorical regulations for new offshore oil and gas
extraction facilities that have a DIF threshold of greater than 2 mgd
and that withdraw at least 25 percent of the water exclusively for
cooling purposes on an actual intake flow basis. The rule establishes
requirements that address intake velocity, proportionate flow for
sensitive locations, design and construction technologies or
operational measures, monitoring and recordkeeping, based on if a
facility employs a sea chest or not, and is fixed or not. Like the
Phase I rule, this rule includes a Track II. In the Phase III rule, EPA
declined to establish national standards for Phase III existing
facilities. Instead it concluded that CWA section 316(b) requirements
for electric generators with a DIF of less than 50 mgd and all existing
manufacturing facilities would continue to be established on a case-by-
case basis under the NPDES permit program using BPJ. (71 FR 35006, June
16, 2006).
ii. Subsequent Litigation
Following promulgation of the rule, a number of parties filed
petitions for review that were subsequently consolidated for hearing in
the U.S. Court of Appeals for the Fifth Circuit. In 2009, EPA
petitioned the Fifth Circuit to remand to the Agency those parts of the
rule that applied to existing facilities. Specifically, EPA requested
remand of those provisions in the Phase III rule that establish 316(b)
requirements at electric generators with a DIF of less than 50 mgd, and
the provision establishing requirements for existing manufacturing
facilities on a case-by-case basis using BPJ. This request did not
affect the Phase III rule requirements that establish categorical
regulations for new offshore oil and gas extraction facilities that
have a DIF threshold of greater than 2 mgd and that withdraw at least
25 percent of the water exclusively for cooling purposes on an actual
intake flow basis.
On July 23, 2010, the U.S. Court of Appeals for the Fifth Circuit
issued a decision affirming the parts of Phase III rule relating to new
offshore oil and gas facilities. The court granted EPA's motion to
remand the rule with respect to existing facilities. In sustaining the
requirements for new offshore oil and gas facilities, the Fifth Circuit
upheld EPA's decision not to use cost benefit balancing in determining
the requirements for these new facilities.
III. Environmental Effects Associated With Cooling Water Intake
Structures
A. Introduction
Multiple types of adverse environmental effects may be associated
with CWIS operations at regulated facilities. Many facilities employ
once-through cooling water systems that impinge fishes and other
aquatic organisms on intake screens. Impinged organisms may be killed,
injured, or weakened. In addition, early life stage fish or planktonic
organisms can be entrained by the CWIS and subjected to high velocity
and pressure, increased temperature, and chemical anti-biofouling
agents in the system. These factors are highly lethal in most cases, as
early life stages of larvae are highly sensitive and very unlikely to
survive entrainment. Even if an organism is entrained as an egg and
survives, its chances of surviving beyond the larvae stage are
dramatically lower than eggs that were never entrained. Thus, unless
measures to protect larvae are in place, egg survival does not indicate
that adverse environmental impacts have been avoided. Consistent with
its treatment of entrainment in past 316(b) rules, EPA assumes for the
purposes of a national rule that 100 percent of entrained organisms
suffer mortality.
The effects of CWIS on aquatic habitats and biota in the waterbody
do not occur in isolation from other ongoing physical, chemical, and
biological stressors. Anthropogenic stressors may include: Degraded
water and sediment quality, low dissolved oxygen (DO) levels,
eutrophication, fishing, channel or shoreline (habitat) modification
(intake structure and other flood or storm controls), hydrologic regime
changes and invasive species. For example, many aquatic organisms
subject to IM&E (impingement mortality and entrainment) reside in
impaired (i.e., CWA 303(d) listed) waterbodies. The effects of
anthropogenic stressors on biota may contribute to or compound the
impact of IM&E, depending on the influence of location-specific
factors. In addition to stressors acting on biota near a single CWIS,
multiple CWISs and facilities located in close proximity on the same
waterbody may have additive or cumulative effects on aquatic
communities. And, although it is difficult to measure, the compensatory
ability of an aquatic population, which is the capacity for a species
to increase survival, growth, or reproduction rates in response to
decreased population, is likely compromised by IM&E and the cumulative
impact of other stressors in the environment over extended periods of
time.
B. Major Anthropogenic Stressors in Aquatic Ecosystems
All ecosystems and their biota are subject to natural variability
in environmental conditions (e.g., seasonal cycles, foliage presence)
as well as periodic large-scale disturbances (e.g., drought, flood,
fire). In contrast, anthropogenic stressors tend to be more chronic in
nature and can often lead to long-term environmental degradation
associated with decreased biodiversity, reduced primary and secondary
production, and a lowered ecosystem resiliency (i.e., ability of the
ecosystem to recover to its original state from perturbations).\21\
Several of the more important anthropogenic stressors are discussed
below, with CWIS-related impacts considered as a separate category of
stress.
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\21\ Rapport, D. J., & Whitford, W. G. (1999). How Ecosystems
Respond to Stress. BioScience, 49(3), 193-203. See DCN 10-4871.
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1. Habitat Loss
Structural aquatic habitat is generally recognized as the most
significant determinant of the nature and composition of aquatic
communities. Most 316(b) facilities have been built on shoreline
locations where industrial buildings, roadways, canals, impoundments,
and other water storage or conveyance structures have been
[[Page 48319]]
constructed at the cost of terrestrial, aquatic, and wetland habitats.
The main impacts of aquatic habitat loss are a reduction in the number
of fish in the environment, a concentration of fishery spawning and
nursery areas in fewer locations, shifts in species dominance based on
available habitat and local extirpation of historical fish species.
Habitat loss in shoreline areas exacerbates the effect of CWIS losses
because many fish species affected by IM&E rely heavily on coastal
wetlands as nursery areas.
2. Water Quality and Impaired Waters
Poor water quality is a major stressor of aquatic biota and
habitats. Degraded surface water and sediment contaminants reflect both
current and past industrial, agricultural and urban land use and
disposal practices. Poor water quality can limit the numbers,
composition, and distribution of fish and invertebrates; reduce
spawning effort and growth rates; select for pollution-tolerant
species; cause periodic fishkills; or result in adverse bioaccumulative
effects to piscivorous wildlife.
EPA has determined that the majority of surveyed facilities,
including 71 percent of electric generators and 79 percent of sampled
manufacturing facilities, are within two miles of an impaired (i.e.,
CWA section 303(d)-listed) waterbody.\22\ These impairments are caused
by a variety of chemical, physical, and biological factors. These
factors include biological stressors, nutrients, organic enrichment/
loading, bioaccumulation, toxics, unknown causes, and other forms of
anthropogenic sources of pollution (e.g., atmospheric deposition of
mercury leading to fish advisories). The combined impacts of impaired
water quality may result in highly degraded or altered aquatic
communities that are further impaired by IM&E associated with the
operation of regulated facilities.
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\22\ Abt Associates, Inc. (2010). Source Water Body Comparisons
(Under Work Assignment 2-09, Task 4) (pp. 13). Cambridge, MA. See
DCN 10-4504.
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3. Overharvesting
Overharvesting is a general term describing the exploitation of an
aquatic population beyond a level that is sustainable, sometimes to the
point of significantly reducing the population relative to historic
levels. Given that many fisheries regulated by the National Marine
Fisheries Service (NMFS) are overfished on a continual basis,
overharvesting is a particular problem for stocks also subject to IM&E.
4. Invasive Species
Non-indigenous invasive species (NIS) are a significant and
increasingly prevalent stressor in both freshwater and marine
environments. Approximately 300 NIS have become established in marine
and estuarine habitats of the continental U.S., and the number of NIS
continues to increase. Many NIS are nuisance species with undesirable
effects on local communities.\23\ For example, interactions between NIS
and other anthropogenic stressors can affect the colonization and
distribution of native species subject to CWIS impacts.
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\23\ Ruiz, G. M., Fofonoff, P. W., Carlton, J. T., Wonham, M.
J., & Hines, A. H. (2000). Invasion of Coastal Marine Communities in
North America: Apparent Patterns, Processes, and Biases. Annual
Review of Ecology & Systematics, 31, 481-531. See DCN 10-4880.
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C. Effects of CWIS on Aquatic Ecosystems
The magnitude and regional importance of IM&E is a function of
operational CWIS intake volumes and characteristics of the aquatic
community in the region. Thus, for example, IM&E can contribute to
impacts on threatened and endangered (T&E) species and reduce
populations of ecologically critical aquatic organisms, including
important organisms in an ecosystem's food web. In addition, IM&E may
diminish the compensatory reserves of populations and reduce indigenous
species populations, commercial fisheries, and recreational fisheries.
Further, IM&E may stress overall communities and ecosystems, as
evidenced by reductions in diversity or other changes in ecosystem
structure or function. The direct and indirect impacts of CWIS may
reduce other valuable ecosystem goods and services, including nutrient
cycling and ecosystem stability.
1. Losses of Fish From Impingement Mortality and Entrainment
The most visible direct impacts of IM&E are the losses of large
numbers of aquatic organisms, distributed non-uniformly among fish,
benthic invertebrates, phytoplankton, zooplankton, and other
susceptible aquatic taxa (e.g., sea turtles). These losses have
immediate and direct effects on the population size and age
distribution of affected species, and may cascade through food webs.
In some cases, IM&E has been shown to be a significant source of
anthropogenic mortality of depleted stocks of commercially targeted
species. For example, approximately 5.4 percent of the estimated A1E
population of the Southern New England/Massachusetts stock of winter
flounder (Pseudopleuronectes americanus) is lost to IM&E.\24\ In
addition to its effect on stocks of marine commercial fish species,
IM&E increases the pressure on native freshwater species, such as lake
whitefish (Coregonus clupeaformi) and yellow perch (Perca flavescens),
whose populations have seen dramatic declines in recent years.\25\
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\24\ Northeast Fisheries Science Center (NEFSC) of the NOAA
National Marine Fisheries Service. (2011). 52nd Northeast Regional
Stock Assessment Workshop (52nd SAW): Assessment Summary Report. DCN
12-4940.
\25\ U.S. Department of the Interior (USDOI). (2004). Fisheries:
Aquatic and Endangered Resources from https://www.glsc.usgs.gov/main.php?content=research_risk&title=Species%20at%20Risk0&menu=research [Retrieved June 23,
2004]; Wisconsin Department of Natural Resources (Wisconsin DNR).
(2003). Adrift on the sea of life. Wisconsin Natural Resources,
June, 17-21. See DCN 10-4914.
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IM&E is also likely to contribute to reduced population sizes of
species targeted by commercial and recreational fishers, particularly
for stocks that are being harvested at unsustainable levels and/or
undergoing rebuilding. Thus, reducing IM&E may lead to more rapid stock
recovery, a long-term increase in commercial fish catches, increased
population stability following periods of poor recruitment and, as a
consequence of increased resource utilization, an increased ability to
minimize the invasion of exotic species.\26\
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\26\ Stachowicz, J. J., & Byrnes, J. E. (2006). Species
Diversity, invasion success, and ecosystem functioning:
disentangling the influence of resource competition, facilitation,
and extrinsic factors. Marine Ecology--Progress Series, 311, 251-
262. See DCN 10-4892.
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2. IM&E Effects on Threatened and Endangered Species
Populations of T&E (threatened and endangered) species may suffer
increased mortality as direct or indirect consequences of IM&E. T&E
species are vulnerable to future extinction or at risk of extinction in
the near future and IM&E losses could either lengthen population
recovery time, hasten the demise of these species, or counteract the
effects of other conservation efforts. For this reason, the population-
level and societal values of T&E losses are likely to be considered
more important than the absolute number of losses that occur. Due to
low population sizes, I&E mortality from CWISs may represent a
substantial portion of the annual reproduction of T&E species.
3. Thermal Effects
One byproduct of once-through cooling water systems is a discharge
of a heated effluent. Concerns about the impacts of heated effluents
are
[[Page 48320]]
addressed by state water quality standards addressing temperature,
rather than a national rule. Section 316(a) of the Clean Water Act
provides a mechanism for variances from controls that could be imposed
due to thermal effects. Based on a limited review of NPDES permits, to
the extent that facilities have controls on cooling water intake
structures, these controls have been required to meet water quality
standards related to temperature.\27\
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\27\ Abt Associates, Inc. (2010). Source Water Body Comparisons
(Under Work Assignment 2-09, Task 4) (pp. 13). Cambridge, MA. See
DCN 10-4504.
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Thermal pollution has long been recognized as having multiple
effects upon the structure and function of ecosystems.\28\ Numerous
studies have shown that thermal discharges may substantially alter the
structure of the aquatic community by modifying photosynthetic,
metabolic, and growth rates \29\ and reducing levels of DO. Thermal
pollution may also alter the location and timing of fish behaviors
including spawning, aggregation, and migration, and may result in
thermal shock-induced mortality for some species.\30\ Adverse
temperature effects are likely to be more pronounced in aquatic
ecosystems that are already subject to other environmental stressors
such as high biochemical oxygen demand (BOD) levels, sediment
contamination, and pathogens. Reduced waterbody volume due to the
effects of climate change and/or lengthy droughts could exacerbate
these effects.
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\28\ Abt Associates, Inc. (2009). Summary of Ecological Effects
of Thermal Discharge (pp. 28). Cambridge, MA. See DCN 10-4505.
\29\ Martinez-Arroyo, A., Abundes, S., Gonz[aacute]lez, M. E., &
Rosas, I. (2000). On the Influence of Hot-Water Discharges on
Phytoplankton Communities from a Coastal Zone of the Gulf of Mexico.
Water, Air & Soil Pollution, 119(1-4), 209-230. See DCN 10-4820.
\30\ Smythe, A. G., & Sawyko, P. M. (2000). Field and laboratory
evaluations of the effects of `cold shock' on fish resident in and
around a thermal discharge: an overview. Environmental Science &
Policy, 3(S1), 225-232. See DCN 10-4887.
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4. Chemical Effects
The release of chemicals in the discharge of once-through cooling
waters is another environmental effect associated with industrial
facility operations. These chemicals include metals from internal
corrosion of pipes, valves and pumps (e.g., chromium, copper, iron,
nickel, and zinc), additives (anti-corrosion and anti-scaling agents)
and their byproducts, and materials from boiler blowdown and cleaning
cycles. In addition to these pollutants, facilities also discharge
anti-fouling biocide agents.
A review of the effects of chemical treatment and discharge into
the environment suggests that direct ecotoxicity in discharge plumes is
rarely observed beyond the point of discharge or in a mixing zone near
the pipe outlet.\31\ However, the presence of these chemicals in the
receiving water may be additive to low-level chronic adverse effects
from other anthropogenic stressors identified above.
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\31\ Taylor, C. J. L. (2006). The effects of biological fouling
control at coastal and estuarine power stations. Marine Pollution
Bulletin, 53(1-4), 30-48. See DCN 10-4901.
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5. Effects of Flow Alteration
The operation of CWISs and discharge returns significantly alter
patterns of flow within receiving waters both in the immediate area of
the CWIS intake and discharge pipe, and in mainstream waterbodies,
particularly in inland riverine settings. In ecosystems with strongly
delineated boundaries (i.e., rivers, lakes, enclosed bays, etc.), CWISs
may withdraw and subsequently return a substantial proportion of water
available to the ecosystem. Even in situations when the volume of water
downstream of regulated facilities changes relatively little, the flow
characteristics of the waterbody, including turbulence and water
velocity, may be significantly altered.
Altered flow velocities and turbulence may lead to several changes
in the physical environment. These changes can include sediment
deposition, sediment transport, and turbidity, each of which plays a
role in the physical structuring of ecosystems.\32\ Flow velocity and
turbulence are controlling biological factors in aquatic ecosystem
health, and have been shown to alter feeding rates, settlement and
recruitment, bioturbation, growth and population dynamics.\33\
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\32\ Hoyal, D. C. J. D., Atkinson, J. F., Depinto, J. V., &
Taylor, S. W. (1995). The effect of turbulence on sediment
deposition. Journal of Hydraulic Research, 33(3), 349-360. See DCN
10-4797.
\33\ Sanford, E. B., Bertness, D., & M. D. Gaines, S. D. (1994).
Flow, food supply and acorn barnacle population dynamics. Marine
Ecology Progress Series, 104, 49-62. See DCN 10-4882.
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Climate change is predicted to have variable effects on future
river flow in different regions of the United States. Some rivers are
expected to have large increases in flood flows while other basins will
experience stress from low water levels. Thus, the adverse effects of
flow alteration may increase or decrease over longer periods for larger
rivers, depending on their location.
D. Community-Level or Indirect Effects of CWIS
In addition to the direct effects of CWISs, IM&E may alter a wide
range of aquatic ecosystem functions and services at the community
level. Many of these effects on aquatic community function and service
are poorly characterized, given the limited scope of IM&E studies and
an incomplete knowledge of baseline or pre-operational conditions
within affected waters.
The operation of CWISs by facilities can lead to localized areas of
depressed fish and shellfish abundance. Industrial facilities (and the
intake volume they represent) are located in a non-uniform manner along
coastlines and rivers. They may be clustered, such that the populations
affected by IM&E are geographically heterogeneous. This can result in a
highly localized and patchy distribution of aquatic organisms in
regional areas.
IM&E may directly reduce species populations through the death of
individual organisms, or may indirectly affect species populations by
altering established predator-prey relationships and thereby disrupting
ecological niches and food webs. For example, the loss of young-of-year
predators, such as striped bass, or loss of important forage fish, such
as menhaden and bay anchovy, may affect trophic relationships and alter
food webs. IM&E may lead to reductions in local community biodiversity
or in a loss of genetic diversity in individual fish populations.
Because IM&E represents a selective pressure on early life stages, it
may reduce the genetic diversity of resident fish and prevent the
recovery of depleted stocks.\34\ Also, because many stocks are
differentiated by oceanic region and/or timing of migratory movements,
IM&E could alter the seasonal migration and life cycle events of fish
populations, which could have ramifications for predator species.
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\34\ Swain, D. P., Sinclair, A. F., & Mark Hanson, J. (2007).
Evolutionary response to size-selective mortality in an exploited
fish population. Proceedings of the Royal Society B: Biological
Sciences, 274(1613), 1015-1022. See DCN 10-4900.
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IM&E may also alter the pace of nutrient cycling and energy
transfer through food webs. Fish species have been shown to have
substantial effects on nitrogen, phosphorous, and carbon cycling due to
storage and translocation effects.\35\ These alterations in nutrient
cycling could lead to redirection of nutrient flows to other components
of the ecosystem including water column phytoplankton, benthic
macroalgae and attached epiphytes, with subsequent changes to the
condition of critical
[[Page 48321]]
ecosystem habitats, such as submerged aquatic vegetation.
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\35\ Vanni, M. J., Layne, C. D., & Arnott, S. E. (1997). ``Top-
down'' trophic interactions in lakes: effects of fish on nutrient
dynamics. Ecology, 78(1), 1-20. See DCN 12-5047.
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The effect of long-term or chronic IM&E may lead to a decrease in
ecosystem resistance and resilience \36\ (i.e., ability to resist and
recover from disturbance, including invasive species). That is, IM&E is
likely to reduce the ability of ecosystems to withstand and recover
from these ecosystem damages, whether those impacts are due to
anthropogenic effects or natural variability.
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\36\ Folke, C., Carpenter, S., Walker, B., Scheffer, M.,
Elmqvist, T., Gunderson, L., & Holling, C. S. (2004). Regime Shifts,
Resilience, and Biodiversity in Ecosystem Management . . . Annual
Review of Ecology, Evolution, & Systematics, 35(1), 557-581. See DCN
10-4770.
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E. Cumulative Effects of Multiple Facilities
Cumulative effects of CWISs are likely to occur if multiple
facilities are located in close proximity and impinge or entrain
aquatic organisms within the same source waterbody, watershed system,
or along a migratory pathway of a specific species (e.g., striped bass
in the Hudson River). EPA analyses show more than 20 percent of all
facilities on inland waters withdraw more than 5 percent of the mean
annual flow.\37\ See TDD Chapter 4.1.3 for detailed discussion. This
impact is compounded because more than half of all regulated facilities
are located on waterbodies with multiple CWISs. An inspection of the
geographic locations of regulated facilities (approximated by CWIS
latitude and longitude) shows that facilities in inland settings are
more likely to be located in close proximity to other facilities
(upstream or downstream) than are facilities in marine and estuarine
environments. The cumulative impact of clustered facilities may be
significant, due to the concentrated IM&E, combined intake flows, and
the potential for other impacts such as thermal discharges.
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\37\ As described in the Phase I proposed rule (65 FR 49060) and
the Phase II NODA (66 FR 28853), absent any other controls,
withdrawal of a unit volume of water from a waterbody will result in
the entrainment of an equivalent unit of aquatic life (such as eggs
and larval organisms) suspended in that volume of the water column.
Thus, facilities withdrawing greater than 5 percent of the mean
annual flow from freshwater rivers and streams may entrain equal
proportions of aquatic organisms.
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IV. Summary Description of the Final Rule
Under today's final rule, the owners or operators of existing
facilities and new units at existing facilities are subject to BTA
standards for impingement mortality and entrainment that are expected
to substantially reduce the adverse environmental impacts of cooling
water intake structures. Earlier, in Section I, the preamble describes
what facilities are subject to the rule. The discussion below presents
an overview of the substantive requirements of the rule.
A. BTA Standard for Impingement Mortality for Existing Units at
Existing Facilities
The final rule requires that existing facilities subject to this
rule must comply with one of the following seven alternatives
identified in the national BTA standard for impingement mortality at
Sec. 125.94(c) (hereafter, impingement mortality standards):
(1) Operate a closed-cycle recirculating system as defined at Sec.
125.92;
(2) operate a cooling water intake structure that has a maximum
through-screen design intake velocity of 0.5 fps;
(3) operate a cooling water intake structure that has a maximum
through-screen intake velocity of 0.5 fps;
(4) operate an offshore velocity cap as defined at Sec. 125.92
that is installed before October 14, 2014;
(5) operate a modified traveling screen \38\ that the Director
determines meets the definition at Sec. 125.92(s) and that the
Director determines is the best technology available for impingement
reduction;
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\38\ EPA is aware that innovative screen designs are currently
being tested that are expected to provide similar or better
performance than modified Ristroph traveling screems. Therefore EPA
has defined modified traveling screen at 40 CFR 125.92 to mean any
traveling water screen that incorporates the specified measures that
are protective of fish and shellfish. In this preamble, modified
traveling water screen with a fish handling and return system is
often referred to more simply a modified traveling screen.
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(6) operate any other combination of technologies, management
practices and operational measures that the Director determines is the
best technology available for impingement reduction; or
(7) achieve the specified impingement mortality performance
standard.
Options (1), (2) and (4) above are essentially pre-approved
technologies requiring no demonstration or only a minimal demonstration
that the flow reduction and control measures are functioning as EPA
envisioned. Options (3), (5) and (6) require more detailed information
be submitted to the Director before the Director may specify it as the
requirement to control impingement mortality.
In the case of Option (3), which EPA considers to be a streamlined
alternative, the facility must submit information to the Director that
demonstrates that the maximum intake velocity as water passes through
the structural components of a screen measured perpendicular to the
screen mesh does not exceed 0.5 feet per second.
In the case of Option (5), the facility must submit a site-specific
impingement technology performance optimization study that must include
two years of biological sampling demonstrating that the operation of
the modified traveling screens has been optimized to minimize
impingement mortality. As discussed below, if the facility does not
already have this technology installed and chooses this option, the
Director may postpone this study till the screens are installed (see
VI.G.1.d below).
In the case of Option (6), the facility must submit a site-specific
impingement study including two years of biological data collection
demonstrating that the operation of the system of technologies,
operational measures and best management practices has been optimized
to minimize impingement mortality. If this demonstration relies in part
on a credit for reductions in the rate of impingement already achieved
by measures taken at the facility, an estimate of those reductions and
any relevant supporting documentation must be submitted. The estimated
reductions in rate of impingement must be based on a comparison of the
system to a once-through cooling system with a traveling screen whose
point of withdrawal from the surface water source is located at the
shoreline of the source waterbody.
The impingement mortality performance standard in (7) requires that
a facility must achieve a 12-month impingement mortality performance of
all life stages of fish and shellfish of no more than 24 percent
mortality, including latent mortality, for all non-fragile species that
are collected or retained in a sieve with maximum opening dimension of
0.56 inches \39\ and kept for a holding period of 18 to 96 hours. The
Director may, however, prescribe an alternative holding period. The 12-
month average of impingement mortality is calculated as the sum of
total impingement mortality for the previous 12 months divided by the
sum of total impingement for the previous 12 months. A facility must
choose to demonstrate compliance with this requirement for the entire
facility, or for each individual cooling water intake
[[Page 48322]]
structure. Biological monitoring must be completed at a minimum
frequency of monthly.
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\39\ Though less common, the EPA recognizes that \1/2\ by \1/4\
inch mesh are used in some instances and perform comparably to the
\3/8\ inch square mesh. Therefore, today's rule allows for
facilities to apply a \1/2\ by \1/4\ inch sieve (diagonal opening of
0.56 inches) or a \3/8\ inch sieve (diagonal opening of 0.53 inches)
when discerning between impinged and entrained organisms.
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The owner or operator of an existing facility must meet the
impingement mortality requirements as soon as practicable after
issuance of a final permit establishing the entrainment requirements
under Sec. 125.94(d).
Today's final rule also allows the Director, based on review of
site-specific data, to conclude that a de minimis rate of impingement
exists and therefore no additional controls are warranted to meet the
BTA impingement mortality standard. In addition, today's final rule
allows the Director flexibility in determining appropriate site-
specific controls that may be less stringent than those found at Sec.
125.94(c)(1) to (7) for existing units at existing facilities operating
with a capacity utilization of less than 8 percent averaged over a 24-
month block contiguous period. This provision can be found at Sec.
125.94(c)(12). EPA notes that these provisions for impingement
mortality would not apply to entrainment because, as discussed in the
next section, the requirements for entrainment are established by the
Director on a site-specific basis.
B. BTA Standard for Entrainment for Existing Units at Existing
Facilities
The final rule establishes the national BTA standard for
entrainment at existing units at existing facilities at Sec. 125.94(d)
(hereafter, entrainment standards). For such units, the rule does not
prescribe a single nationally applicable entrainment performance
standard but instead requires that the Director must establish the BTA
entrainment requirement for a facility on a site-specific basis. The
requirements must reflect the Director's determination of the maximum
reduction in entrainment warranted after consideration of all factors
relevant to the BTA determination at the site and must include
consideration of the specific factors spelled out in Sec.
125.98(f)(2). Facilities that withdraw greater than 125 mgd AIF must
develop and submit an Entrainment Characterization Study (Sec.
122.21(r)(9)), as well as provide other information required at Sec.
122.21(r)(7) and (10), (11), (12) and (13) that must include specified
data pertinent to consideration of several of the factors identified in
Sec. 125.98(f).
C. BTA Standards for Impingement Mortality and Entrainment for New
Units at Existing Facilities
The owner or operator of a new unit at an existing facility must
achieve one of two compliance alternatives under the national BTA
standards for impingement mortality and entrainment for new units at
existing facilities at Sec. 125.94(e) (hereafter, new unit
standards).\40\ Under the new unit standards, the owner or operator of
a facility must reduce AIF at the new unit, at a minimum, to a level
commensurate with that which can be attained by the use of a closed-
cycle recirculating system as defined at Sec. 125.92(c)(1). The owner
or operator of a facility with a cooling water intake structure that
supplies cooling water exclusively for operation of a wet or dry
cooling tower(s) and that meets the definition of closed-cycle
recirculating system at Sec. 125.92(c)(1) meets this new unit
standard. Under the alternative new unit standard, the owner or
operator of a facility must demonstrate to the Director that it has
installed, and will operate and maintain, technological or other
control measures that reduce the level of adverse environmental impact
from any cooling water intake structure used to supply cooling water to
the new unit to a comparable level to that which would be achieved
through flow reductions commensurate with the use of a closed-cycle
recirculating system. Under this alternative, the owner or operator of
a facility must demonstrate entrainment mortality reductions that are
equivalent to 90 percent or greater of the reduction that could be
achieved through compliance with the first alternative entrainment
standard for new units.
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\40\ EPA expects that all new units will comply with these
requirements through the installation of a closed-cycle cooling
system, which is one of the most effective technologies for reducing
impingement and impingement mortality. Therefore, the IM
requirements for new units are already addressed by the new unit
requirements by virtue of the first compliance alternative of the IM
performance standard.
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The new unit entrainment standards do not apply to certain water
withdrawals including (1) cooling water used by manufacturing
facilities for contact cooling purposes; (2) portions of those water
withdrawals for auxiliary cooling uses totaling less than 2 mgd; (3)
any volume of cooling water withdrawals used exclusively for make-up
water at existing closed-cycle recirculating systems; \41\ and (4) any
quantity of emergency back-up water flows. Furthermore, as is the case
for existing units, obtaining cooling water from a public water system,
using reclaimed water from wastewater treatment plants, or desalination
plants, or using recycled process wastewater effluent as cooling water
does not constitute use of a cooling water intake structure. The new
unit requirements apply only to the volume of cooling water used by the
new unit, or to the cooling water intake structures used by the new
unit. The new unit requirements do not apply to the rest of the
existing facility.
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\41\ For facilities with a combination of closed-cycle
recirculating systems and other cooling water systems, the
entrainment mortality standard does not apply to that portion of
cooling water withdrawn as make-up water for the closed-cycle
recirculating system.
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In addition, the Director may establish alternative entrainment
requirements for new units when compliance with the new unit
entrainment standards would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirements
at issue or will result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other
than impingement or entrainment, adverse impacts on threatened and
endangered species, or significant adverse impacts on local energy
markets. Any Director-specified alternative must achieve a level of
performance as close as practicable to the requirements of Sec.
125.94(e)(1) or (2).
D. Other Provisions
The final rule contains a number of other provisions related to the
BTA impingement and entrainment reduction requirements. For example,
the rule also provides that the Director may establish more stringent
requirements as BTA if the Director determines that the facility owner
or operator's compliance with the requirements otherwise established
under the final rule would not meet the requirements of applicable
State and Tribal law, including water quality standards. 40 CFR
125.94(i). Today's rule also requires the owner or operator of a
facility subject to this subpart to submit and retain permit
application and supporting information as specified in Sec. 125.95;
monitor for compliance as specified in Sec. 125.96; and report
information and data and keep records as specified in Sec. 125.97.
Director requirements are specified in Sec. 125.98.
The rule further provides that, in the case of a nuclear facility
or a facility constructing or conducting maintenance on nuclear powered
vessels of the Armed Services, if the owner or operator of the facility
demonstrates to the Director, upon the Director's consultation with the
Nuclear Regulatory Commission, the Department of Energy or the Naval
Nuclear Propulsion Program, that compliance with this subpart would
result in a conflict with a safety requirement established by these
entities, the
[[Page 48323]]
Director must establish BTA requirements that would not result in a
conflict with the Commission's, the Department's or the Naval Nuclear
Propulsion Program's safety requirement.
V. Summary of Data Updates and Revisions to the Proposed Rule
This description of revisions to the proposed rule is organized in
three sections: Data updates, regulatory approach and compliance, and
new units. EPA published two NODAs (Notice of Data Availability) (77 FR
34315, June 11, 2012 and 77 FR 34927, June 12, 2012) based on some
comments received on the proposed rule and additional analyses. EPA
also took public comment on the information in these notices.
A. Data Updates
On the basis of comments received, additional information made
available, and further analyses, EPA revised a number of assumptions
used in its assessments for the final rule. These included revisions to
the engineering costs of options considered in development of the final
rule, the information collection costs, the economic analyses, and the
benefits analyses. The revised analyses, along with an explanation of
how they affected decision making for this final rule, are discussed
below.
1. Impingement Data and Performance Standard
Since publishing the proposal, EPA received a substantial number of
comments stating the amount of data to develop the proposed impingement
mortality performance standard was too limited. EPA received more than
80 additional documents containing impingement and entrainment data.
EPA reviewed these materials and found that many documents did not
provide useful data. For example, in some cases, a document did not
provide useful information because the only data available were the
facility name and raw sampling data for a number of different species
of fish or shellfish, or both. In other cases, the documents focused on
source water characterization data alone. However, after review, EPA
identified more than 40 distinct sets of additional impingement
sampling and performance data.
EPA also reevaluated and revised the criteria it used for including
impingement mortality study data in the impingement mortality
performance standard calculations. In calculating the impingement
mortality performance standard of Sec. 125.94(c)(7), EPA applied these
revised criteria for acceptable data to both the new data and the
earlier data used for proposal. EPA's approach for the final rule is
similar to that of the proposal. In order to include data in EPA's
calculation, for the proposal, EPA applied the following four criteria.
First, the data must be specific to the technology under consideration.
Second, impingement mortality must have been reported as an absolute
number or a percentage of impinged fish that were killed. Third, the
data must reflect that the installed technology was operated under
conditions that are representative of actual conditions at a facility,
and fourth, the reported values must be actual measurements. EPA based
the proposed performance standard on the performance of modified
traveling screens with a fish return system using a limited definition
of the control technology.
In its reevaluation and based on comments, EPA decided to revise
some of the criteria and add two new ones. In some cases, the effect of
these changes is to relax the criteria and in others, to impose more
restrictive criteria. First, all impingement data must be for non-
fragile species (including shellfish). Second, the data must be
representative of annual mortality data for purposes of deriving an
annual performance standard. EPA notes that in contrast to the proposed
rule, the permit application does not require submission of the
proposed list of ``species of concern.'' EPA found that the term
``species of concern'' was similar to terms used in the context of T&E
(threatened and endangered) species, and may further cause confusion
over existing Services or State requirements for such species. Further,
despite EPA's efforts to distinguish between species of concern and RIS
(representative indicator species) in the NODA (77 FR 34325, June 11,
2012), EPA found that many commenters were still confused by the
language. Instead, EPA is adopting the term ``fragile species'' and
using the term exactly as it is used with the impingement mortality
data and criteria used in calculating the impingement mortality
performance standard of the rule. EPA included a definition for
``fragile species'' at Sec. 125.92(m), as a species of fish or
shellfish that has an impingement survival rate of less than 30
percent. EPA took this approach to ensure that a facility's performance
in reducing impingement mortality as demonstrated by collecting
biological data would reflect only the effects of its improvements to
the CWIS technology, and not be confounded by effects of data
collection that are not caused by impingement.
EPA also relaxed the holding time criteria as a result of
reevaluating the range of acceptable impingement mortality holding
times, which at proposal was limited to 24 to 48 hours. After
evaluating the data, EPA concluded that a range of holding times of 18
to 96 hours was acceptable for inclusion in the development of a
performance standard because commenters had provided documentation
showing that the actual time period typically had little effect on IM
rates. At proposal, EPA counted all fish that died at any time during
the holding period. For the final rule being promulgated today, EPA
excludes those that were dead at time zero because such counts measured
immediate deaths and not those organisms that were mortally harmed as a
result of impingement. These counts also might reflect already injured,
nearly dead, or already dead fish (``naturally moribund'') that were
impinged by the screen. As a consequence of relaxing the holding times
and other requirements, EPA based the performance standard on a larger
set of data, with broader geographic representation. (For more
information, see DCN 12-6703.) The rationale for these revisions to the
data acceptance criteria are described in further detail in the TDD,
Chapter 11. Using the revised criteria, EPA reviewed the data in each
of the impingement mortality studies for potential inclusion in EPA's
evaluation of an impingement mortality performance standard. These
changes resulted in an increase in the number of facility data sets
acceptable for determining the impingement mortality performance
standard, from four data sets at three facilities at proposal to 26
data sets at 17 facilities today. As a result, the 12-month average
impingement mortality performance standard of all life stages of fish
and shellfish was revised from no more than 12 percent to no more than
24 percent mortality, including latent mortality, for each non-fragile
species that is collected or retained in a sieve with maximum opening
dimension of 0.56 inches and kept for a holding period of 18 to 96
hours. The revised performance standard and data evaluation criteria
are discussed in detail in Section VI and Chapter 11 of the TDD.
EPA also reevaluated its approach to compliance monitoring for the
impingement mortality performance standard. In particular, EPA
considered the costs and burden of frequent biological monitoring for
those technologies that, according to EPA's record, perform equal to or
better than
[[Page 48324]]
the IM performance standard. As proposed, all facilities would have
conducted weekly biological monitoring in perpetuity irrespective of
the compliance approach or technologies selected. EPA agrees with
comments that this may be unnecessarily burdensome and of limited value
for those technologies for which the potential performance is well
documented. As such, today's final rule includes seven compliance
alternatives, only one of which requires biological compliance
monitoring.
EPA notes, however, that a facility relying in part on a credit for
reductions in impingement mortality already obtained at the facility
(Sec. 125.94(c)(6)) must gather biological data at a minimum frequency
of monthly for a period of two years in order to calculate their 12-
month average impingement mortality. Further, a facility choosing to
comply using the impingement mortality performance standard (Sec.
125.94(c)(7)), must conduct biological monitoring at a frequency of at
least monthly in order to calculate its 12-month average impingement
mortality. The 12-month average is calculated as the sum of total
impingement mortality for the previous 12 months divided by the sum of
total impingement for the previous 12 months. EPA is requiring that a
facility choose to either demonstrate compliance with this requirement
for the entire facility, or for each individual cooling water intake
structure. The EPA expects that as the performance of the technology is
demonstrated by the facility, the Director could reduce the frequency
of biological compliance monitoring. Further, prior to a subsequent
permit application, a facility could collect sufficient performance
data to demonstrate to the satisfaction of the Director that its
``systems of technologies'' compliance alternative is BTA at that
facility.
2. Technology Costs
Since publishing the proposal, EPA received a number of public
comments from industry stating that EPA had underestimated the costs of
modified traveling screens with fish returns. EPA used new information
to revise the compliance cost estimates (including the methodology used
for technology assignment) and the capital costs for several compliance
technologies, including those used as the primary basis for the final
rule. Those changes include the following:
In response to comments challenging EPA's assumption that
modified traveling screens were available at most facilities, EPA
changed the assignment of the modified traveling cost module \42\ so as
to apply this only where the existing intake for the model facility
intake employed traveling screens. As a result, a number of intakes,
such as those that use passive screens (e.g., fixed screens), were
assigned higher cost technologies such as larger intakes or wedgewire
screens with through-screen design velocities of 0.5 fps.
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\42\ EPA used a model facility approach to develop compliance
technology costs where different sets of compliance technology cost
algorithms called modules were assigned to individual model facility
intakes on the basis of site-specific conditions. For a more
detailed discussion, see the TDD Chapter 8.
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Because EPA has clarified that properly operated closed-
cycle recirculating systems is one of the compliance alternatives for
impingement mortality, those intakes with existing closed-cycle cooling
no longer receive additional impingement technology costs.
At proposal, the design of the larger intake module was
based on a through-screen velocity of 1.0 fps and, therefore, was not
consistent with the low velocity compliance alternatives. To ensure
that this technology will be consistent at all locations, the through-
screen design velocity for the larger intake was changed to a maximum
of 0.5 fps, resulting in a substantial increase in capital and
operational and maintenance costs.
EPA received a number of comments noting that fish returns
might be difficult to install at some intakes. EPA reviewed the fish
return cost component of the modified traveling screen module and
concluded that EPA's costs represented an ``easy'' installation rather
than an average of both easy and more difficult installation costs. To
account for a wider range of fish return costs that includes those with
higher costs, EPA increased the capital costs of the fish return
component and included additional costs for those with particularly
difficult circumstances such as very long intake canals and submerged
offshore intakes. For a detailed discussion, see Chapter 8 of the TDD.
EPA received a number of comments stating that it had
underestimated capital costs for modified traveling screens. During
site visits to several facilities, EPA obtained actual traveling screen
replacement costs. EPA compared its estimates to actual reported
replacement costs and vendor-supplied data and concluded that the
capital costs were underestimated by about 20 percent. Therefore, EPA
increased the capital costs of modified traveling screens by 20
percent.
These changes to the engineering costs result in a 24 percent
increase in capital and O&M costs. The revised costing assumptions are
discussed in further detail in Chapter 8 of the TDD.
3. Monitoring Costs for Impingement Mortality
Many commenters expressed concern that requirements for monitoring
for the impingement mortality performance standard were excessive. Of
particular concern were the long-term costs for impingement mortality
monitoring at facilities that would be relying on either closed-cycle
cooling or an intake velocity less than or equal to 0.5 fps through-
screen design velocity. The final rule includes seven compliance
alternatives for the impingement standard. One of these alternative
provides for reduced monitoring requirements for facilities employing
modified traveling screens. This alternative is available if the
facility has demonstrated the technology is optimized to minimize
impingement mortality of all non-fragile species. Under this approach,
EPA requires the facility to provide site-specific performance data to
identify the operational conditions that will ensure that the
technology is being operated optimally. Once these operational
conditions have been identified, the Director must include in the
permit those operational measures and best management practices
identified in the study and deemed as necessary by the Director to
ensure proper operation of the modified traveling screens. EPA also
clarified in the rule that compliance monitoring and reporting
requirements for facilities that comply with the impingement mortality
standard by employing one of the pre-approved or streamlined IM
compliance alternatives will be largely limited to information that
ensures proper operation of the installed control technology. EPA
estimates that this alternative approach will reduce annual monitoring
and reporting costs from approximately $47 million under the proposed
rule to approximately $27 million under the final rule.
4. Benefits and Willingness To Pay Survey
EPA received a number of comments on the proposed rule and NODA
addressing the use of stated preference surveys to determine the
public's willingness-to-pay for benefits associated with the rule. EPA
conducted a stated preference survey to calculate benefits associated
with minimizing
[[Page 48325]]
adverse impacts to aquatic ecosystems from cooling water intakes. For
some commenters, the use of stated preference surveys to evaluate
benefits remains controversial, and they objected to using such
surveys. Other commenters acknowledge the decades of technical
development and improvement of these methods and support using stated
preference surveys. Based on consideration of public comment, EPA
decided not to employ the survey results for purposes of decision-
making in this rule, or include them in assessing the total benefits of
the rule. The rule does not require State Directors to require facility
owners or operators to conduct or submit a willingness to pay survey to
assess benefits.
B. Regulatory Approach and Compliance
1. Regulatory Approach
EPA has largely adopted the regulatory approach of the proposed
rule with several changes regarding compliance, particularly with
respect to the impingement mortality requirements. These changes
clarify elements of the rule (as discussed in the NODAs) about which
commenters expressed uncertainty and provide additional flexibility to
regulated facilities in meeting the rule's impingement mortality
standard.
EPA received some comments questioning whether specific provisions
apply to the entire facility or to individual intakes. To clarify this
issue, EPA modified the rule language so as to state clearly that a
facility with multiple intakes must decide whether it will adopt a
single compliance strategy for impingement mortality for the entire
facility or adopt an intake-specific compliance strategy at each
cooling water intake. Thus, facilities may select different compliance
strategies for different intakes, providing flexibility at facilities
with multiple intakes. Regardless of which impingement compliance
approach a facility chooses (single strategy for entire facility or
different strategies for different intakes), if the facility chooses to
comply with the impingement standard by operating at a maximum through-
screen velocity of 0.5 feet per second, the facility must measure and
comply with the low velocity compliance alternative of 0.5 fps on an
individual intake basis.
a. Impingement Mortality Standards
EPA received a substantial number of comments requesting greater
flexibility and clarification regarding compliance with the impingement
mortality standards, including suggestions that (1) impingement
requirements be addressed on a site-specific basis; (2) certain
technologies should be pre-approved; (3) credit should be given for
existing technologies and operating conditions; and (4) combinations of
technologies be allowed. EPA has concluded that low-cost technologies
for impingement mortality reduction are effective, widely available,
feasible, and demonstrated for facilities nationally and thus, a
completely site-specific approach is not appropriate. However,
recognizing that for some sites technologies other than modified
traveling screens may allow a facility to achieve the same level of
performance, EPA has included compliance options that provide for more
flexibility and allow consideration of the performance of combinations
of technologies and operating conditions. Some of the more significant
changes include the following:
Compliant technologies--EPA has concluded that employing
certain technologies will meet or exceed the requirement of the
impingement mortality standard, provided they meet certain design and
operational criteria. These pre-approved and streamlined technologies
include a closed-cycle recirculating system, existing offshore velocity
cap, and maximum design intake velocity of 0.5 fps. Associated with
these compliance options are reduced monitoring requirements.
[cir] Closed-Cycle Cooling--EPA has concluded that a fully closed-
cycle recirculating system as defined at Sec. 125.92(c) (and that is
properly operated and maintained) achieves the impingement mortality
performance standard. Even after retrofitting a facility to be closed-
cycle, it may still be possible to withdraw and discharge cooling water
at rates associated with once-through cooling. Existing facilities that
retrofit to closed-cycle cooling often do so without modifying or
replacing their condenser to optimize it for closed-cycle operation. In
such cases, the facility has an incentive to operate its system in a
once-through cooling mode, to minimize chemical costs or avoid a
turbine backpressure constraint. EPA has concluded that it is not
appropriate to add conditions to the definition of closed-cycle cooling
because water may be withdrawn for purposes of replenishing losses to a
closed-cycle recirculating system other than those due to blowdown,
drift, and evaporation from the cooling system. However, the final rule
provides the Director the discretion to determine whether the operation
of a cooling system minimizes the make-up and blowdown flows withdrawn,
consistent with the definition of a closed-cycle recirculating system
(40 CFR 125.92(c)).
[cir] Existing Offshore Velocity Caps--The record indicates that an
existing offshore velocity cap as defined at Sec. 125.92(v) also
achieves the necessary reductions in impingement mortality and thus
meets the IM standard. Data in the record concerning existing velocity
caps show that a velocity cap alone is insufficient, but data on
existing offshore velocity caps shows that a velocity cap in
combination with their current offshore locations meet EPA's BTA
standard for impingement mortality. EPA has determined that new
offshore velocity caps could comply using the combination of
technologies approach in Sec. 125.94(c)(6). The offshore component
likely makes the velocity cap technology unavailable except to
facilities in marine waters and certain Great Lakes locations;
therefore, the technology alone is not BTA.
[cir] Through-Screen Velocity--EPA has clarified that compliance
with a 0.5 fps intake velocity achieves the IM standards. EPA's record
shows an intake velocity of 0.5 fps or lower provides similar or
greater reductions in impingement, and therefore impingement mortality,
than modified traveling screens--the technology forming the basis for
the numeric impingement mortality performance standard that is the goal
for all facilities. There are two ways to demonstrate compliance using
intake velocity. First, an intake with a maximum design intake velocity
less than or equal to 0.5 fps is pre-approved BTA for impingement
mortality and does not require further monitoring. Alternatively, under
a streamlined option, the facility may demonstrate to the Director that
the facility meets the velocity requirement through monitoring of the
actual intake velocity. Screen velocity can be monitored by direct
measurement or by calculation using the volumetric actual intake flow
and source water surface elevation.
Modified Traveling Screens--A facility must operate
modified traveling screens \43\ that the Director determines meets the
definition at Sec. 125.92(s). Facilities will demonstrate that they
have optimized performance of their traveling screen to minimize IM.
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\43\ While rotary screens are technically not modified traveling
screens, the regulation at Sec. 125.92(s) defines modified
traveling screens to include traveling water screens that
incorporate measures protective of fish and shellfish. EPA has thus
provided the flexibility for other types of active screens that
achieve the same or better performance than modified traveling
screens.
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[[Page 48326]]
Systems of Technologies to Meet the IM Standard--EPA
received a substantial number of comments asking whether previously
installed technologies or various combinations of technologies and
operating conditions could also meet the BTA standard for impingement
mortality. For example, some technologies, such as louvers, reduce the
rate of impingement, but the effect on overall impingement mortality
reduction cannot easily be measured and would not appear in biological
sampling of the technology. In EPA's view, the Director should take
into account the reduction in impingement--for example, that associated
with such technologies as louvers or behavioral deterrents, or due to
intake location--when determining permit conditions to include in the
facility's permit in order for a combination of technologies to achieve
the required impingement mortality standards. Thus, the facility should
obtain credit toward the impingement mortality standard for such
reductions in the rate of impingement. A number of the flexibilities
above were described in the June 11, 2012 NODA, and EPA has included a
provision to allow additional flexibility in achieving compliance
through the use of a combination of technologies and operating
conditions. A facility may use a system of technologies, management
practices and operational measures to achieve the impingement mortality
standard, including, for example, flow reductions, seasonal operation,
unit closures, credit for intake location, behavioral deterrent
systems, and other technologies and operational measures. The Director
must determine, based on a demonstration by the facility to the
Director, that the system of technologies or operational measures, in
combination, have been optimized to minimize impingement mortality of
all non-fragile species. The Director may require additional
operational measures, best management practices, and monitoring as part
of the demonstration. In addition, the facility's permit must include
conditions to ensure that the facility operates its cooling water
intake structures in a manner consistent with the conditions and
measures identified in its demonstration to the Director.
Numeric IM Performance Standard--As a practical matter,
EPA expects that very few facilities will choose to comply with the
numeric impingement mortality performance standard. Those facilities
that choose to comply in this way will need to demonstrate to the
Director how the technology the facility is implementing enables the
facility to meet the impingement mortality standard. The numeric
standard provides a pathway to compliance for innovative technologies
that may be developed in the future.
EPA also received many comments stating that barrier nets were both
unnecessary and might be unavailable in many locations. Because EPA's
revised impingement data set had sufficient data to characterize
shellfish impingement, EPA has eliminated the barrier net requirement
in the final rule. See Section VI for more information.
b. Definition of Closed-Cycle Cooling System
In the final rule, EPA revised the definition of a closed-cycle
recirculating system to provide additional flexibility for the Director
in determining which closed-cycle cooling systems comply with the IM
standards. The proposed rule's definition of ``closed-cycle
recirculating systems'' included, as elements of a properly operated
closed-cycle system performance, requirements generally expressed in
terms of cycles of concentration (COC) or percentage flow reduction
relative to a once-through cooling system. Cycles of concentration
represents the accumulation of dissolved minerals in the recirculated
cooling water. Discharge of a portion of the water (called
``blowdown'') is used to control the buildup of these minerals. COC is
a measure of how concentrated are chlorides in recirculated water
relative to make-up water, and thus how well a system recycles intake
water before replacing it with new withdrawals. This is not to be
confused with cycles of flow, as some commenters appeared to do.
Cycles of concentration can be measured as the ratio of chloride
levels in the recirculated water or blowdown relative to the chloride
levels in the source water, or makeup water. Some commenters stated
that, while they have been operating as closed-cycle units for many
years, they were concerned that their facilities would not be ``closed-
cycle recirculating systems'' under the proposed definition because
they would not achieve the required COC. EPA has found the
concentration cycles in the majority of cooling towers usually range
from 3 to 6 at power plants, and can often exceed 9 at manufacturing
facilities. However, EPA recognizes that many manufacturers have
complex water balances, and calculating a specific flow reduction
attributable to cooling water use could be difficult and time
consuming. In such cases, many manufacturers could far more readily
calculate the cycles of concentration of particular unit operations,
and could therefore show those unit operations that use cooling water
meet the conditions for closed-cycle cooling. EPA found in site visits
many complex manufacturing facilities already have this capability, and
have achieved very high COC. Likewise, power plants may find it much
easier to measure flow than cycles of concentration. Accordingly, EPA's
proposed rule attempted to recognize performance using either metric.
EPA expects most power generators would use percentage flow reduction
to demonstrate they are closed-cycle, and expects most manufacturing
facilities would use COC for those units that utilize water for cooling
purposes. Increasing the amount of minerals present in the water by
cycling can make water less aggressive to piping; however, EPA is also
aware that excessive levels of minerals (such as found in certain
source waters, most notably those with higher salinity) can cause
scaling problems, leading to different levels of both metrics for
freshwater and saltwater facilities.
EPA carefully considered these issues and concluded that the most
important aspect of the definition of a properly operated closed-cycle
cooling system is that the makeup flow be minimized. Thus EPA has
removed the numeric levels of the metrics as a threshold, while
retaining the minimized makeup flow aspect of the definition. As an
example, in the case of a facility that uses make-up water from a
freshwater source, a Director may determine that a closed-cycle
recirculating system can generally be deemed to minimize make-up and
blowdown flows if it reduces actual intake flows (AIF) by 97.5 percent
as compared to a once-through cooling system or if its cooling tower is
operated at a minimum cycles of concentration of 3.0. And likewise, in
the case of a facility that uses make-up water from a saltwater,
brackish, or other source with a salinity of greater than 0.5 parts per
thousand, a Director may determine that a closed-cycle recirculating
system can generally be deemed to minimize make-up and blowdown flows
if it reduces actual intake flows (AIF) by 94.9 percent as compared to
a once-through cooling system or if its cooling tower is operated at a
minimum cycles of concentration of 1.5. These reductions and cycles of
concentration are illustrative. A Director may determine that other
levels near these numbers could also constitute a closed-cycle
recirculating system. The final rule further recognizes that in certain
unavoidable circumstances, these levels for COC or percent flow
reduction might not be achievable at all facilities. Such circumstances
could
[[Page 48327]]
include situations where water quality-based discharge limits might
limit the concentration of a pollutant that is not readily treatable in
the cooling tower blowdown or situations where varying source water
quality could lead to unavoidable problems concerning scale formation,
solids buildup, corrosion, or media fouling. Such facilities should
demonstrate these circumstances to their Director and indicate the
measures they have taken to minimize makeup flows. The Director will
retain the discretion to conclude that the particular facility employs
a closed-cycle recirculating system when the benchmarks are not met.
In cases where the Director will make a determination as to whether
the facility's cooling system meets the definition of a closed-cycle
recirculating system, EPA's intent is that the withdrawal of small
amounts of service water (for uses such as fire suppression, potable
water, screenwash water, vehicle wash water, and such) do not preclude
consideration of the system as closed-cycle. To avoid misuse of this
provision, the Director will make the final determination.
Finally, EPA data show more than 50 facilities have cooling systems
that include impoundments. In some cases, the cooling systems that
include impoundments were created in the waters of the U.S., in whole
or in part, or were created in uplands but withdraw make-up water from
waters of the U.S. These cooling systems may perform like a closed-
cycle recirculating system. EPA has clarified at 40 CFR 125.92(c)(2)
that a cooling system that includes an impoundment lawfully created in
the waters of the U.S for the purpose of cooling may be considered a
closed-cycle recirculating system. As with other closed-cycle
recirculating systems, the Director will determine whether the
impoundment minimizes the withdrawal of water for cooling purposes and
therefore meets the definition of a closed-cycle recirculating system.
See Section VI for further discussion.
c. Entrapment
The proposed rule included a prohibition on trapping organisms in
an intake structure with no viable escape route. Many commenters
expressed concern that the entrapment requirements were not well
defined and would require costly technologies not considered in EPA's
cost estimates. Moreover, in the commenters' view, the requirements
could be difficult to comply with, particularly where cooling systems
employ impoundments or basins downstream of the initial intake
structure. EPA agrees that in some cases, such as where a canal or
basin for maintaining consistent water levels is located behind the
CWIS, that the proposed entrapment requirement could require additional
controls such as additional fish returns that are not, in all cases,
feasible. For example, EPA found in site visits that the forebay may be
located more than a mile from the CWIS, and a fish return in that
situation would not have been feasible. The final rule deleted the
requirement that prohibited entrapment. In the final rule, facilities
would account for all impinged fish and shellfish when conducting their
two year performance study. To the extent entrapment of shellfish poses
a concern, the Director may establish additional measures, such as
seasonal deployment of barrier nets, under Sec. 125.94(c)(8).
d. Requirements for Threatened and Endangered Species
EPA consulted with the Fish and Wildlife Service and National
Marine Fisheries Service and EPA made a number of adjustments to the
rule to protect threatened and endangered species and designated
critical habitat as a result of the consultation; the protections were
included to insure that the rule is not likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of designated critical habitat. To be clear, the
ESA provisions of the rule extend to all listed T&E species, not just
fish and shellfish. See Section VIII.K for a summary of these
provisions.
2. Compliance Timelines for Impingement Mortality and Entrainment
Requirements
At proposal, compliance deadlines for impingement mortality and
entrainment requirements were set separately. Facilities would have
been required to meet impingement mortality reduction requirements as
soon as possible, but no more than eight years after the effective date
of the rule. Compliance with entrainment reduction requirements would
have been set by the Director. Many commenters expressed concern that
the compliance timeline for the impingement mortality and entrainment
requirements should be harmonized to prevent a facility from having to
install a technology to comply with impingement mortality requirements,
only to be required at a later date to install an entrainment reduction
technology that effectively renders the investment in the impingement
mortality technology obsolete or worthless.
EPA agrees that facilities required to install both impingement and
entrainment compliance technologies will benefit from reduced
compliance costs if the compliance scheduling is coordinated. EPA also
agrees that requiring more timely decisions on entrainment requirements
than anticipated at proposal will facilitate these cost savings without
sacrificing fish protection. In some cases, impingement compliance can
be attained with entrainment technologies. For example, the Director
may determine that the installation of modified fine-mesh traveling
screens and narrow-slot wedgewire screens will achieve the impingement
mortality standard and further, that this same equipment represents, on
a site-specific basis, BTA entrainment control. If the compliance
schedule is not harmonized, it is possible that a facility could
install (at significant cost) coarse-mesh traveling screens that it
might have to later retrofit with fine-mesh panels. It is also possible
that a facility could make modifications necessary to attain a 0.5-fps
through-screen velocity to meet the IM standards and later have closed-
cycle cooling identified as BTA for entrainment, thereby making the
intake modifications for impingement control unnecessary.
To address this issue in the final rule, EPA revised the compliance
requirements so that the Director is required first to establish
entrainment requirements under Sec. 125.94(b)(1) in the final permit.
The facility will then be required to comply with the impingement
mortality standard in Sec. 125.94(c) as soon as practicable
thereafter. See Section VIII on implementation for more detailed
discussion.
Because an entrainment requirement could require controls that take
many years to design, finance and construct, the Director may establish
interim milestones related to meeting the final requirements to ensure
that the facility is making progress.
C. New Units
EPA has revised the definition of new units to mean a stand-alone
unit at an existing facility the construction of which is commenced
after the effective date of today's final rule; consists of only a
stand-alone unit constructed at an existing facility; and that does not
otherwise meet the definition of a new facility at Sec. 125.83. A
stand-alone unit is a new, separate unit that is constructed at an
existing facility. New unit includes stand-alone units that are added
to a facility for purposes of the same general industrial operation as
the existing
[[Page 48328]]
facility. A new unit may have its own dedicated cooling water intake
structure, or may use an existing or modified cooling water intake
structure.
VI. Basis for the Final Regulation
In response to the Supreme Court's decision in Entergy Corp. v.
Riverkeeper, Inc. et al. in April 2009, EPA has reevaluated the
requirements for existing facilities under CWA section 316(b). As
discussed above, EPA collected additional data and information to
update its assessment of the efficacy of various technological measures
for reducing IM&E and analyses prepared for the earlier rule-making
efforts. EPA's additional technical rigor provided a strengthened
analysis of different technologies for reducing IM and their
effectiveness. As a result of its revised assessments and further
consideration of the factors affecting the availability of different
technology in a wide range of settings, EPA has decided not to re-
promulgate requirements for existing facilities that mirror those of
the final Phase II rule. Further, EPA is adopting, for the reasons
explained in detail below, a new framework. In addition, as previously
noted, EPA decided to address all existing facilities subject to
section 316(b) in this rule (i.e., both those subject to the Phase II
rule and some of those subject to the Phase III rule). For a brief
description of the final rule, see Section IV.
A. EPA's Approach to BTA
CWA section 316(b) requires EPA to establish standards for cooling
water intake structures that reflect the ``best technology available
for minimizing adverse environmental impact.'' As explained above, the
statute is silent with respect to the factors that EPA should consider
in determining BTA, but courts have held that section 316(b)'s
reference to CWA sections 301 and 306 is an invitation for EPA to look
to the factors \44\ considered in those sections in establishing
standards for section 316(b).
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\44\ The factors specifically delineated in CWA sections 301 and
306 include cost of the technology, taking into account the age of
the equipment and facilities, process employed, engineering aspects
associated with a particular technology, process changes and non-
water quality environmental impact (including energy requirements).
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But EPA, when considering such factors, is not bound to evaluate
these in precisely the same way it considers them in establishing
effluent limitations guidelines under CWA section 304. As the Supreme
Court noted, given the absence of any factors specified in section
316(b), EPA has much more discretion in its standard setting under
section 316(b) than under the effluent guidelines provisions.
Therefore, the statute vests EPA with broad discretion in determining
what is the ``best'' technology that is ``available'' for minimizing
adverse environmental impact. As the Supreme Court has further
explained, under section 316(b), the ``best'' technology ``available''
may reflect a consideration of a number of factors and ``best'' does
not necessarily mean the technology that achieves the greatest
reduction in environmental harm that the regulated universe can afford.
Rather, the ``best'' (or ``most advantageous,'' in the court's words)
technology may represent a technology that most efficiently produces
the reductions in harm.
EPA interprets section 316(b) to require the Agency to establish a
standard that will best minimize impingement and entrainment--the main
adverse effects of cooling water intake structures not otherwise
addressed by the other sections of the CWA (e.g., thermal discharges).
In EPA's view, several important considerations underpin its decision.
First, its BTA determination should be consistent with, and reflective
of, the goals of CWA section 101: ``to restore and maintain the
physical, chemical, and biological integrity of the Nation's waters,''
with the interim goal of ``water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water.''
Second, E.O. 13563 directs EPA and other Federal agencies to
identify and use the best, most innovative and least burdensome tools
for achieving regulatory ends. In its regulatory actions, agencies
``must take into account benefits and cost, both quantitative and
qualitative,'' and to the extent permitted by law, only promulgate
regulations that are based on ``a reasoned determination that its
benefits justify its costs (recognizing that some benefits and costs
are difficult to quantify)'' (see section 1(b)(1)). In selecting a
regulatory approach, agencies must tailor regulations to impose the
least burden on society and, in choosing among regulatory alternatives,
select ``those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity)'' to the extent permitted
by law. 76 FR 3821 (January 21, 2011). Because the Supreme Court has
concluded that the CWA authorizes EPA to consider costs and benefits in
its BTA determination, EPA has consequently considered costs and
benefits in this final rule as directed by the President. In accord
with E.O. 13563, EPA has concluded that the benefits of the final rule
justify its costs. For additional discussion, see Section VI below.
Consideration of benefits is complicated by the debate about the
tools and data that would permit a complete expression of ecological
benefits in monetized terms. EPA has, however, used the best available
science regarding widely accepted tools and data to monetize the
benefits of the various options in four major categories: recreational
fishing, commercial fishing, nonuse benefits, and benefits to
threatened and endangered species (see Section X below). EPA has
concluded that the benefits estimated for the first two categories are
generally complete, while the benefits estimated for the latter two
categories are far from being complete for a number of reasons. For
example, the nonuse benefits transfer was based on a species that
represents less than one percent of adverse environmental impacts. EPA
is continuing to refine its tools to develop a more complete analysis
concerning benefits for future application.
In selecting the ``best'' technology available for minimizing
adverse environmental impact, EPA looked at a number of factors. As
discussed previously, EPA's initial approach to 316(b) standard setting
was similar to one it follows in considering a technology-based rule
under sections 301, 304, and 306. EPA first considered the availability
and feasibility of various technologies, and then evaluated costs
associated with these technologies (including potential costs to
facilities and households), and their economic impacts. EPA also
reviewed the effectiveness of these technologies in reducing
impingement mortality and entrainment. Further, EPA also considered
additional factors set out in CWA section 304(b), including location,
age, size, and type of facility. In addition, EPA considered the non-
water quality environmental impacts of different technologies on energy
production and availability, electricity reliability, and potential
adverse environmental effects that could arise from the use of the
different technologies evaluated.
As a result of this thorough evaluation, in the case of the BTA
standard for impingement mortality, EPA based the standard on
performance of well-operated modified traveling screens with a fish
handling and return system as defined more specifically by the rule.
Under the BTA IM standard, a facility has a number of options for
[[Page 48329]]
compliance. In the case of the BTA standard for entrainment, on the
other hand, EPA could not identify one technology that represented BTA
for existing facilities on a national basis.
B. Overview of Final Rule Requirements
As noted, EPA concluded that the best technology available for
minimizing impingement mortality was ``modified traveling screens,'' as
more specifically defined in the rule. The BTA Impingement Mortality
Standard includes seven technology options for complying with the
standard whose performance is equivalent to, or better performing than
modified traveling screens. First, the rule identifies four
technologies (closed-cycle recirculating systems, reduced design intake
velocity, reduced actual intake velocity, and existing offshore
velocity caps) that reduce impingement mortality as well or better than
modified traveling screens, and therefore will generally comply with
the BTA Impingement Mortality Standard of today's final rule.
The rule also provides that, if the Director determines that
modified traveling screens are insufficient to protect shellfish, the
Director may establish additional measures under Sec. 125.94(c)(8)
such as seasonal deployment of barrier nets, or if modified traveling
screens \45\ are insufficient to protect other species, the Director
may establish additional protective measures under Sec. 125.94(c)(9).
In addition, the rule provides in Sec. 125.94(g) that the Director may
establish additional control measures and monitoring or reporting
requirements in the permit in order to protect Federally-listed
threatened and endangered species and designated critical habitat. The
Director may include such conditions that are designed to minimize
incidental take, reduce or remove more than minor detrimental effects
to Federally-listed species and designated critical habitat or avoid
jeopardizing Federally-listed species and or destroying or adversely
modifying designated critical habitat (e.g., prey base).
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\45\ Or any of the IM compliance alternatives.
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Next, the final rule provides an option that allows a facility to
demonstrate to its permitting authority that it has installed modified
traveling screens--the technology EPA identified as the basis for the
BTA impingement mortality standard--and to provide data on the
performance of its screens. The facility must demonstrate that its
modified traveling screens are consistent with EPA's definition and
demonstrate through an impingement technology performance optimization
study that its screens have been optimized to minimize impingement
mortality. After consideration of the information provided, the
permitting authority will determine whether the technology is the best
technology available for impingement mortality reduction at the site
and include permit conditions to ensure optimal performance of the
screens. In other words, the owner or operator of a facility will
comply with the BTA standard for IM at Sec. 125.94(c)(5) if that
facility uses modified traveling screens as defined at Sec. 125.92(s),
and operates in accordance with the permit conditions established by
the Director that ensure the technology will perform as demonstrated.
As noted above, in certain circumstances, under Sec. Sec.
125.94(c)(8), (9) and 125.94(g), the Director may require additional
protective measures.
As stated in the June 11, 2012 NODA, EPA does not intend for
facilities to install closed-cycle cooling solely for the purpose of
meeting the IM requirements. In fact, EPA expects all facilities could
comply with IM requirements without relying on retrofitting to closed-
cycle cooling (see Exhibit VIII-1, showing expected compliance
alternative based on technologies in place today). If a facility
chooses to comply with the BTA IM standard by installing and operating
traveling screens, the screens must meet the definition of modified
traveling screens provided at Sec. 125.92(s). These may include, for
example, modified Ristroph screens with a fish handling and return
system, dual flow screens with smooth mesh, and rotary screens with
fish returns such as vacuum pumps. EPA based the regulatory definition
on the commonly found features of modified traveling screens used in
developing the BTA impingement mortality standard.
In addition, the final rule also provides a compliance option that
would allow facilities the option of demonstrating to the Director on a
site-specific basis, similar to the showing for modified traveling
screens, that a system or combination of technical and operational
measures will achieve the BTA standard for impingement mortality at a
particular site. Using a combination of technical and operational
measures as the basis for demonstrating compliance allows facilities
the opportunity to take credit for intake location, flow reduction, or
other measures already employed to reduce the rate of impingement.
Further, the combination of technical and operational measures provides
the flexibility to use a system of approaches to reducing impingement
and impingement mortality. This may include technologies that were not
found to reduce impingement consistently or in all circumstances, but
that on a site-specific basis have been demonstrated to provide a high
level of performance. For example, a facility might employ light and
sound to induce an avoidance response from certain species. This might
not alone address impingement mortality for all non-fragile species at
the intake, therefore additional measures (intake location, barrier
nets, etc.) would also be applied, to minimize the rate of impingement
or impingement mortality.
For both the screens and system of technologies, a two year study
must be completed in which biological data collection is used to make
site-specific adjustments to screens or the combination of technologies
in order to optimize performance at that facility. Those optimal
operating parameters then become permit conditions. For facilities that
have already installed traveling screens or the technologies associated
with the system approach, EPA has combined the two year biological
study with the other permit application and rule requirements for
biological data collection, including the Source Water Baseline
Biological Characterization Data. In this manner, EPA is establishing a
consistent set of biological study requirements, with an overall
reduction in the burden of the required level of biological monitoring.
Lastly, a facility may choose to comply with the numerical
impingement mortality performance standard that was established based
on the BTA technology. If a facility chooses this compliance option, it
must conduct periodic monitoring to demonstrate compliance. Under this
last compliance option, a facility could implement innovative
technologies to address impingement mortality and subsequently
demonstrate that their performance is as good as, or better than, a
modified traveling screen with fish handling and return system. EPA
envisions that after a sufficient demonstration period of a
technology's performance, the facility will be able to qualify its
operation under the previous option.
For entrainment, on the other hand, EPA could not identify one
technology that represented BTA for existing facilities on a national
basis, for the reasons explained in detail below. Instead, the national
BTA entrainment standards for existing facilities establishes a
detailed regulatory framework for the determination of BTA
[[Page 48330]]
entrainment requirements by the permitting authority on a site-specific
basis.
While site-specific permit requirements are not new, what is
different about this approach from the current requirement for permits
to include 316(b) conditions is that for the first time, EPA is
establishing a detailed specific framework for determining BTA
entrainment control requirements. Thus, the rule identifies what
information must be submitted in the permit application, prescribes
procedures that the Director must follow in decision making and factors
that must be considered in determining what entrainment controls and
associated requirements are BTA on a site-specific basis.
As previously noted, EPA looked at a number of factors in
considering what national entrainment standard it should adopt. As
discussed in detail in the following section, EPA identified only one
high performing technology as a potential BTA candidate for
entrainment: closed-cycle recirculating systems as defined at Sec.
125.92(c)(1). While there are other technologies for entrainment that
are available or demonstrated, they are not uniformly high performing
technologies. See TDD Chapter 6 for more information regarding the lack
of intermediate performing technologies for entrainment. EPA has
identified the following specific factors as the key elements in its
decision not to prescribe this technology as the basis for a national
BTA standard for entrainment: land availability, air emissions, and
remaining useful plant life. How these factors dictated EPA's decision
is discussed below.
For new units at existing facilities, EPA has established BTA
requirements to minimize impingement mortality and entrainment, based
on flow reduction commensurate with closed-cycle cooling. The rest of
this section describes in detail the above considerations.
C. Technologies Considered To Minimize Impingement and Entrainment
As described in Chapter 4 of the TDD, power plants and
manufacturers withdraw large volumes of cooling water daily. Cooling
water withdrawals are responsible for over half of surface water
withdrawals for all uses in the United States, including agriculture
and municipal uses. The purpose of cooling water withdrawals is to
dissipate that portion of the heat that is a by-product of industrial
processes that facilities have not harnessed to a productive end and
therefore view as waste heat.
The majority of environmental impacts associated with intake
structures are caused by water withdrawals that ultimately result in
the loss of aquatic organisms. These losses might be from impingement,
entrainment, or both. Impingement occurs when organisms are trapped
against the outer part of a screening device of an intake
structure.\46\ The force of the intake water traps the organisms
against the screen and they are unable to escape. Not all organisms in
the incoming water are impinged, however. Some might pass through the
screening device and travel through the entire cooling system,
including the pumps, condenser or heat exchanger tubes, and discharge
pipes. This is referred to as entrainment. Various factors lead to the
susceptibility of an organism to impingement or entrainment. For more
detailed discussion of impingement and entrainment and the associated
mortality and other effects, see Section III above.
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\46\ Typically, cooling water intake structures use various
screening devices to prevent objects (e.g., debris, trash) from
being drawn in with the cooling water and ultimately clogging or
damaging the cooling water system, especially the condenser or heat
exchanger components.
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For purposes of this rule, EPA is adopting the following
conventions for defining impingement and entrainment and mortality:
Impingement: Occurs when any life stage of fish and
shellfish are pinned against the outer part of an intake structure or
against a screening device during intake water withdrawal. Impingement
may also occur when an organism is near a screen but unable to swim
away from the intake structure because of the water velocity at the
intake.
Entrainment: Occurs when any life stages of fish and
shellfish are drawn into the intake water flow entering and passing
through a cooling water intake structure and into a cooling system.
Impingement Mortality: The death of fish or shellfish due
to impingement. It may also include organisms removed from their
natural ecosystem and lacking the ability to escape the cooling water
intake system and thus subject to mortality. Note that impingement
mortality need not occur immediately. Impingement may cause harm to the
organism which results in mortality at some time after impingement. For
purposes of this rule, EPA has defined impingement mortality as the
death of those organisms collected or retained by a sieve with a
maximum opening of 0.56 inches; this includes both the \3/8\-inch sieve
and a \1/2\-inch by \1/4\-inch mesh.\47\
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\47\ Mesh sizes of \3/8\ are commonly referred to as
coarse mesh; this refers to the size of the screen opening (in
contrast to fine mesh) and not the roughness of the mesh material.
---------------------------------------------------------------------------
Entrainment Mortality: The death of fish or shellfish due
to entrainment. This is typically associated with mortality related to
small organisms that pass the entire way through a facility and are
killed as a result of thermal, physical, or chemical stresses. This
term also includes the death of those fish and shellfish that may occur
on fine mesh screens or other technologies used to exclude the
organisms from entrainment. For purposes of this rule, EPA defined
entrainment mortality as the death of those organisms passing through a
sieve with a maximum opening of 0.56 inches.
Impingement mortality is typically less than 100 percent of the
impinged organisms if a fish return or backwash system is employed.
Impingeable organisms are generally not very small fish or early life
stages (e.g., those that can pass through \3/8\-inch mesh screens), but
typically are fish with fully formed scales and skeletal structures and
well-developed survival traits such as behavioral responses to avoid
danger. EPA's data demonstrate that, under the proper conditions, many
impinged organisms can survive.
Entrainable organisms generally consist of eggs and early life
stage larvae. Early larvae generally do not have skeletal structures,
have not yet developed scales, and in many cases are incapable of
swimming for several days after hatching. EPA has found that
entrainable organisms that are collected after interaction with the
CWIS show poor survival in the case of most eggs, and essentially no
survival of larvae. Consequently, on the basis of the record
information it has reviewed, EPA concluded for purposes of this rule
that all entrained organisms die, i.e., no entrained organisms survive.
(See, for example, 76 FR 22188 [April 20, 2011] and 69 FR 41620 [July
9, 2004].) Therefore, without entrainment control, entrainment is
assumed to lead to entrainment mortality. Also see Chapter A7 of the
Phase II Regional Studies Document (DCN 6-0003; EPA-HQ-OW-2002-0049-
1490).
Whether an organism near a cooling water intake structure is
impinged or entrained is a function of the screen mesh size. Holding
the number and size distribution of organisms at the intake constant, a
larger screen mesh size will result in relatively more entrainment,
while a smaller mesh size will result in
[[Page 48331]]
relatively more impingement. Historically, traveling screens deployed
by power plants used a \3/8\-inch mesh size. For this reason, most
studies and reports referring to impingement are in fact referring to
those organisms impinged on a \3/8\-inch mesh screen. Similarly,
entrainable organisms are those organisms fitting through a mesh of
less than or equal to \3/8\ of an inch. This also means the majority of
entrainable organisms are composed of eggs, larvae, and smaller
juveniles. More recent studies, particularly those that evaluate mesh
sizes smaller than \3/8\ of an inch, continue to refer to impingement
as any organism caught on the screen. This can cause some confusion
because many organisms that would have been entrained with a \3/8\-inch
mesh instead become impinged by the finer mesh. These are referred to
as impinged entrainables or ``converts.'' EPA has also found that most
studies of entrainment are biased toward the larger (older) larvae with
higher survival rates and do not analyze survival of smaller larvae.
This bias implies a focus on larvae body lengths sufficient to have
begun scale and bone development, and it generally reflects the more
motile early life stages. EPA found that these study findings cannot be
applied to smaller and less motile life stages, which are incapable of
avoidance responses. It is also important to note that preventing
entrainment by some exclusion technologies might result in very high
entrainment reductions by converting entrainment to impingement, but
these impinged organisms may have an even lower likelihood of surviving
impingement than larger potentially impinged organisms. Therefore,
while entrainment refers specifically to passage through the cooling
water intake system, entrainment mortality also includes those smaller
organisms killed by exclusion from the cooling water intake system.
Today's rule uses the \3/8\-inch mesh size as part of the definition of
impingement mortality and entrainment mortality as a means of clearly
differentiating those organisms that might be susceptible to
impingement or entrainment, and thereby avoids any confusion over the
status of impinged entrainables or ``converts.''
Generally, two basic approaches can be used to reduce impingement
mortality and entrainment. The first approach is flow reduction, where
the facility installs a technology or operates in a manner to reduce or
eliminate the quantity of water being withdrawn. Reduced volumes of
cooling water produce a corresponding reduction in impingement and
entrainment and, therefore, reduced impingement mortality and
entrainment mortality. It should be noted that, at electric generators,
flow reduction could be achieved, perhaps most effectively, by
installing more energy efficient production, thereby requiring less
cooling per unit of electricity generated. The second way to reduce
impingement and entrainment is to install technologies or operate in a
manner that either (1) gently excludes organisms or (2) collects and
returns organisms without harm. Exclusion technologies or practices
divert those organisms that would have been subject to impingement and
entrainment away from the intake. Collection and return technologies
are installed to collect and return organisms to the source water,
allowing impingement to occur but possibly preventing impingement
mortality.
Although not available to all facilities, two other approaches to
reducing impingement and entrainment are (1) relocating the facility's
intake to a less biologically rich area in a waterbody, and (2)
reducing the intake velocity. Relocating an intake farther from shore
or at greater depths can be effective at entrainment reduction but is
not available to many inland facilities because the distance or depths
required to reach less biologically-productive waters are not generally
available. Further, while a far offshore intake may exhibit a lower
density of organisms, the species found will change as a function of
distance from the shoreline as well as depth in the water column.
Therefore, it may not always be desirable to relocate an intake
structure. A reduced intake velocity provides motile organisms the
opportunity to swim away from the intake structure. This approach can
be very effective in reducing impingement but has no effect on
entrainment.
Sections 1 and 2 below further describes flow-reduction and
exclusion technologies.
1. Flow Reduction
Flow reduction is commonly used to reduce impingement and
entrainment. For purposes of this rulemaking, EPA assumes that
entrainment and impingement (and associated mortality) at a site are
proportional to source water intake volume. Thus, if a facility reduces
its intake flow, it similarly reduces the amount of organisms subject
to impingement and entrainment.\48\ Some common flow reduction
technologies are variable frequency drives and variable speed pumps,
seasonal operation or seasonal flow reductions, unit retirements, use
of alternate cooling water sources, water reuse, and closed-cycle
cooling systems. For additional detailed information on these
technologies as well as others, see Chapter 6 of the TDD,
``California's Coastal Power Plants: Alternative Cooling System
Analysis'' (DCN 10-6964), and EPRI's ``Fish Protection at Cooling Water
Intake Structures: A Technical Reference Manual'' (DCN 10-6813).
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\48\ Impingement rates are related to intake flow, intake
velocity, and the swimming ability of the fish subject to
impingement. Entrainment is generally considered to be proportional
to flow and therefore a reduction in flow results in a proportional
reduction in entrainment, as EPA assumes for purposes of national
rulemaking that entrainable organisms are uniformly distributed
throughout the source water. EPA has consistently applied this
assumption throughout the 316(b) rulemaking process (for a
discussion of proportional flow requirements in the Phase I and II
rules see, e.g., 66 FR 65276 and 69 FR 41599; also see EPA's 1977
draft guidance manual for 316(b), available at DCN 1-5045-PR from
the Phase I docket) and continues to assume that it is broadly
applicable on a national scale and is an appropriate assumption for
a national rulemaking. EPA recognizes that this assumption does not
necessarily apply when relocating or varying the time pattern of
withdrawals, such that these may be effective strategies to reduce
impingement and entrainment in some locations.
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a. Variable Frequency Drives and Variable Speed Pumps
A facility with variable speed drives or pumps operating at their
design maximum can withdraw the same volume of water as a conventional
circulating water pump. However, unlike a conventional circulating
water pump, variable speed drives and pumps allow a facility to reduce
the volume of water being withdrawn for certain periods. The pump speed
can be adjusted to reduce water withdrawals when cooling water needs
are reduced, such as when ambient water temperatures are colder (and
therefore capable of dissipating more heat), when fewer generating
units are operating or when fuel is more efficiently burned. In site
visits, EPA found that variable drives and pumps were typically used at
units operating below capacity, such as load-following units. EPA
estimates that facilities with intermittent water withdrawals could
achieve a 5 to 10 percent reduction in flow.\49\ For this reason, many
baseload generating units and continuously operated manufacturing
processes will obtain limited reductions in flow from using these
technologies. EPA is further aware that some facilities may need to
[[Page 48332]]
withdraw water for cooling even while the facility is not in
production, such as facilities on standby status, or nuclear facilities
where the heat energy generated by fission must still be dissipated
while the facility is out of service. As a result, EPA determined that
variable frequency drives and variable speed pumps, while useful in
specific setting and circumstances, are not BTA candidates because the
flow reduction technologies have limited application and availability,
and are not a high performing technology as an entrainment control
measure.
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\49\ Withdrawals of colder water could allow facilities to
reduce their intake flow using variable drives and pumps, but EPA
does not have data on the efficacy or availability of this approach.
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b. Seasonal Operation or Seasonal Flow Reductions
Seasonal operation or seasonal flow reduction refers to the
reduction or elimination of a quantity of water withdrawn either during
periods of low demand for electricity output, or to coincide with
certain biologically important periods. Most facilities that currently
employ seasonal flow reductions do so to limit thermal impacts or to
reduce entrainment, because entrainment often has a peak season,
particularly during a local spawning season. Freshwater drum, for
example, perform broadcast spawning during early summer when water
temperatures reach about 65 degrees Fahrenheit.
During specific peak entrainment periods, a facility could scale
back its operation (or perhaps not operate at all), thereby reducing or
eliminating the volume of cooling water withdrawn. This could be
accomplished through a combination of variable speed pumps or shutting
down some portion of the pumping system. Seasonal flow reduction could
also consist of operating a closed-cycle recirculating system as
defined at Sec. 125.92(c)(1) as once-through during part of the year
and as a closed-cycle system during the peak entrainment season. (EPA
notes that closed-cycle cooling has been rejected as noted in the
previous section, and discussed in more detail below.) Facilities could
also choose to schedule regular maintenance to occur during these high
entrainment periods. These maintenance activities often require the
facility to reduce or cease operations and can be timed to coincide
with the most biologically productive periods. Through site visits, EPA
gathered information on species present at facilities and has
identified some sites where entrainment appears to be significant all
year long, and other sites where peak entrainment occurs in as few as
three to four months of the year.\50\ However, if all power-generating
facilities in a local area were to stop operating at the same time,
there could be difficulty in supplying electricity to the area.
Therefore, EPA concluded that seasonal operations have limited
nationwide application for controlling entrainment and are thus not
widely available entrainment reduction technology.
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\50\ See DCN 10-6702 and its attachments for examples of
spawning ``seasons.''
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Impingement is generally more sporadic, less predictable, and more
difficult to address with seasonal operation. For example, clupeid
species, such as gizzard shad, experience impingement episodes
sporadically throughout the winter and spring during periods of
especially cold water temperatures, or sporadically throughout the
summer and fall during periods of low dissolved oxygen.
c. Unit Retirements
Some power plants units have been retired and others have
essentially ceased all operations but have not been formally retired or
decommissioned. The reasons for their inactivity vary,\51\ but the end
result is the facility no longer needs cooling water withdrawals for
these units. Similarly, manufacturers may retire processing units as
market demand changes, process lines are moved to other sites, or
production technologies change. Unit closures provide clear reductions
in flow, but the demand for electricity (or other products) might
dictate that production be increased at the facility in question or at
another facility altogether; there is usually no guarantee that the
intake flow will be permanently retired. EPA expects flow reductions
due to unit closures could be reasonably included as part of a
facility's impingement mortality and entrainment reductions strategy.
Given the number of variables involved in the decision to retire a unit
and the likelihood of a facility having a unit that is ready to retire
at promulgation of the final rule, unit retirements are not a
nationally available entrainment reduction measure. See Section VIII
for further discussion of how a facility can take credit for flow
reductions attributable to unit closures.
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\51\ Note that some generating units are retired by the owner
(i.e., the unit is no longer considered sufficiently profitable to
operate) or is rarely dispatched by its independent system operator
for market-driven reasons (i.e., the unit cannot deliver at a
competitive price except during limited peak seasons; see also Sec.
125.94(c)(12)). They may also be mothballed, placed on cold storage,
or maintained in various other states of operational readiness.
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d. Use of Alternate Cooling Water Sources
While not reducing the overall usage of water at a facility, using
an alternate source of cooling water can reduce impingement and
entrainment if the alternate source substitutes for withdrawals from
surface waters. An example is using ``gray'' water as a source of
cooling water, such as a facility that reaches an agreement with a
nearby wastewater treatment plant to accept the wastewater treatment
plant's effluent as a source of cooling water.\52\ Such alternate
sources are limited by available capacity and consistency of flow.
Increasing competition for these sources of water may make this a more
challenging approach for existing facilities than for new facilities
that are not yet fixed in location. In principle, alternate sources
could be used to fulfill either a fraction or all of a facility's
cooling water demands. In practice, the location of alternate sources,
the costs of moving water from the alternate source to the facility,
and whether the facility uses a once-through or closed-cycle
recirculating system as defined at Sec. 125.92(c) will determine
whether the alternate source can meet all or a portion of the
facility's cooling water needs. All these factors limit the widespread
availability of alternate cooling water sources as an entrainment
reduction measure, however use of alternative sources of cooling water
such as wastewater treatment effluent could be attractive for certain
facilities where the cost of retrofitting or other site-specific
circumstances are favorable.\53\
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\52\ See, for example, EPA's site visit report for PSEG's Linden
Generating Station (DCN 10-6557), which has a capacity of 1230 MW,
35 percent CUR, and uses 7-8 mgd of gray water as the sole source of
makeup water for its cooling towers.
\53\ For maps showing which electric generators are near a
source of available reuse water for cooling, see Tidwell, V., J.
Macknick, K. Zemlick, J. Sanchez, and T. Woldeyesus. 2013.
``Transitioning to Zero Freshwater Withdrawal for Thermoelectric
Generation in the United States.'' (submitted). See also the
accompanying presentation given at the American Geophysical Union
Fall 2012 Meeting available at https://www.nrel.gov/docs/fy13osti/57444.pdf.
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e. Water Reuse
Typically associated with manufacturing facilities, water reuse
(defined as using water for multiple processes) can reduce the volume
of water needed for cooling, process, or other uses. For example, a
facility might withdraw water for non-contact cooling water and then
reuse the heated effluent as part of an industrial process. In effect,
the facility has eliminated the need to withdraw additional water for
the latter
[[Page 48333]]
process. EPA has observed significant water reuse at manufacturing
facilities but has not developed national level data for such reuse
because of the range of different manufacturing sectors and the
significant variability in manufacturing processes appropriate for
reuse. For example, during site visits, EPA observed that it may be
difficult to quantify specific water reuse at complex facilities. (See,
for example, the site visit report for ArcelorMittal, a steel mill at
DCN 10-6551.) For additional detail on water usage in specific
industrial sectors, see Chapters 4 and 8 of the TDD.
Increasingly, electric utilities are adopting water reuse to meet a
portion or all of their cooling water demands. Water reuse can enhance
the reliability of power generation in water-limited environments.
Given the complex use (and reuse) patterns for some facilities and the
lack of reuse at other facilities, water reuse cannot be considered as
a widely available entrainment reduction option.
f. Closed-Cycle Cooling Systems
Closed-cycle cooling systems allow a facility to transfer its waste
heat to the environment using significantly smaller quantities of water
relative to once-through cooling, and in some cases no water. The main
types of closed-cycle cooling systems are wet cooling, dry cooling,
hybrid cooling, and impoundments. Each is described below.
i. Wet Cooling Systems
In a wet cooling system, cooling water that has absorbed waste heat
transfers that heat through evaporation of some of the heated water
into the surrounding air and recirculates the now cooled water to
continue the cooling process.\54\ This process enables a facility to
reuse the remaining water, thereby reducing the quantity of water that
must be withdrawn from a waterbody. Because the heat is transferred
through evaporation, the amount of water withdrawn from the water
source is greatly reduced, though not eliminated completely, because
make-up water is required to replace that lost through evaporation and
blowdown.\55\ The two main types of wet cooling systems are natural
draft and mechanical. While wet cooling systems reduce withdrawals
significantly relative to once-through systems, they can increase the
consumptive use of water because they rely on evaporation (which is not
returned to the waterbody) for heat dissipation. When once-through
cooling is used and withdrawals are a significant portion of the source
waterbody, the return of heated water might contribute to greater
evaporation from the waterbody relative to the waterbody's normal
evaporation rate. EPA does not have conclusive data on the relative
magnitude of these effects, but the data do suggest that the relative
difference in evaporation is not so great that it will play a major
role in determining a cooling system type in most watersheds. EPA
examined available information on evaporation losses in DCN 12-6673,
including a comparison to evaporative losses from the downstream
effluent plume of once-through cooling systems. While EPA recognizes
that evaporative losses from closed-cycle systems are greater, EPA's
analysis does not suggest that the difference is substantial enough to
outweigh the significant reduction in adverse environmental impacts to
aquatic organisms. However, the relative loss of water through
evaporation for closed-cycle and once-through systems is site-specific,
depending on the exact design of the systems.
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\54\ In addition, a smaller portion of the heat is also removed
through direct contact between the warm water and the cooler
surroundings; this is known as sensible heat.
\55\ Cooling towers must replace water lost to evaporation; this
is referred to as makeup water. Additionally, as water evaporates,
dissolved solids and other materials gradually increase in
concentration in the circulating water and can cause operational
difficulties. To minimize these issues, cooling tower operators
continually discharge a small portion of the circulating flow and
replace it with makeup water; this is referred to as blowdown.
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There are two common designs for wet cooling systems. A natural
draft cooling tower can be as tall as 500 feet and has a hyperbolic
shape. The height of these towers creates a temperature differential
between the top and bottom of the tower, which creates a natural
chimney effect that transfers heat as heated water contacts rising air.
In contrast, mechanical cooling towers rely on motorized fans to draw
air through the tower and into contact with the heated water.\56\ These
towers are much shorter than natural draft cooling towers (typically 30
to 75 feet tall) and can be built in groups. Mechanical cooling towers
may require more land area than natural draft cooling towers for an
equivalent amount of cooling. Both types of towers require electricity
for pumps, but mechanical draft towers also require electricity to
operate the fans. In both cases, the electricity need of the towers
reduces an electric generating facility's net generating output. Thus,
the monetary and environmental costs of this reduction in energy
efficiency must be considered. These environmental costs include human
health and welfare effects from increased air emissions (from burning
additional fuel to make up for the power that cannot be sold) and the
global climate change effects of increased greenhouse gas output at
fossil-fueled facilities (these costs are now explicitly considered in
the benefit-cost analysis; see Section X below). Both natural draft and
mechanical cooling towers can operate in freshwater or saltwater
environments. Saltwater applications typically require more make-up
water than freshwater applications, making them less efficient in
reducing water withdrawals. Optimized cooling towers can achieve flow
reductions of 97.5 and 94.9 percent or better for freshwater and
saltwater sources, respectively.
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\56\ Modular cooling tower units provide an additional cooling
tower alternative. Modular cooling towers resemble mechanical
cooling towers, but are portable, typically rented for short-term
periods and quickly assembled.
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ii. Dry Cooling Systems
Dry cooling systems virtually eliminate the need for cooling water
withdrawals.\57\ Unlike wet cooling systems, waste heat in dry cooling
systems is transferred completely through convection and radiation,
rather than evaporation. Direct dry cooling is much like a car
radiator; turbine exhaust steam passes through tubes or fins for
cooling, and the condensate is returned to the boiler to be reheated
into steam to propel the turbine. The system is completely closed to
the atmosphere, and there is no contact between the outside air and the
steam or the resulting condensate. Because of the heavy reliance of dry
cooling on ambient air temperatures and the lower efficiency of heat
transfer through convection and radiation, dry cooling systems are much
larger and therefore more expensive \58\ than wet cooling systems for a
given cooling load. While dry cooling systems are not uncommon in the
U.S. (see DCN 10-6943), they have typically been built at smaller
generating units or in areas where limited water supplies might make
[[Page 48334]]
uncertain the availability of either once-through cooling or wet
cooling make-up water, such as the arid southwestern United States. Dry
cooling has not been used for circulating water cooling at nuclear
facilities.
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\57\ Dry cooling systems blow down some of the circulating water
in the cooling system to prevent the buildup of materials in the
condenser. However, the volume of makeup water is extremely low--a
dry cooling system typically reduces intake flows by 98-99 percent
over a comparable once-through cooling system.
\58\ The construction and capital costs for dry cooling towers
have been reported as four to 10 times more expensive as wet cooling
towers, and the auxiliary power consumption for dry cooling is
higher than for wet cooling. See DCN 10-6679. EPA recognizes that
costs for dry cooling may have decreased since this document was
written, but costs for dry cooling are still markedly higher than
those for wet cooling. The other challenges associated with dry
cooling remain unchanged.
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iii. Hybrid Cooling Systems
In certain applications, a facility could choose a hybrid cooling
system design that incorporates elements of both wet and dry cooling.
Typically, the base of the tower functions as a wet cooling system and
the upper portion as a dry cooling system. The most common reason for
this design is to reduce the visible plume of water vapor, which is
accomplished by recapturing some of the water vapor evaporated in the
wet portion of the tower. This design is also usually much shorter than
natural draft wet towers and can also include plume abatement controls.
Another version of the hybrid cooling system also includes both wet and
dry cooling sections, but the dry section functions to directly cool a
portion of the turbine exhaust steam. The benefits of such a tower may
include substantial water savings as well as reduction in power plant
efficiency losses associated with just dry cooling.
iv. Impoundments
Impoundments are surface waterbodies that serve as both a source of
cooling water and a heat sink. As with cooling towers, impoundments
rely on evaporative cooling to dissipate the waste heat; a facility
withdraws water from one part of the impoundment and then discharges
the heated effluent back to the impoundment, usually in another
location to allow the heated water time to cool. Depending on local
hydrology, impoundments may also require makeup water from another
waterbody. Impoundments can be man-made or natural, and can be offset
from other water bodies or as part of a ``run of the river'' system
(the latter are sometimes referred to as cooling lakes).
2. Exclusion and Collection Technologies
Over the last several decades, numerous technologies in addition to
specific flow reduction measures such as velocity controls and closed-
cycle cooling have been developed in an effort to minimize impingement
mortality and entrainment associated with cooling water intake systems.
The following section summarizes the most widely used technologies and
the most effective and best-performing technologies, such as screens,
barrier nets, aquatic filter barriers, and collection and return
systems. For additional detailed information on these technologies and
others, also see Chapter 6 of the TDD, ``California's Coastal Power
Plants'' report (DCN 10-6964) or EPRI's ``Fish Protection at Cooling
Water Intake Structures'' report (DCN 10-6813).
a. Screens
There are several types of screens that offer protection that are
discussed below, including traveling screens and cylindrical wedgewire
screens. Not described in this section are fixed screens that are used
simply for the purpose of debris exclusion but do not offer protection
to fish, larvae, and eggs.
i. Traveling Screens
Traveling screens are a technology in place as part of most cooling
water intake structures. These screens originally were designed to
prevent debris from entering the cooling water system, but they also
prevent some fish and shellfish from entering the cooling water system.
Traveling screens have been installed in a wide variety of operating
and environmental conditions: salt water, brackish water, freshwater,
and icy water, as well as river, lake and tidal applications. On the
basis of the technical survey, EPA found 93 percent of electric
generators and 73 percent of manufacturers employ traveling water
screens or other intake screens. Many types of traveling water screens
(e.g., through flow, dual flow, center flow) are used. The most common
design in the United States is the through flow system. The screens are
installed behind bar racks (trash racks) but in front of the water
circulation pumps. The screens rotate up and, while out of the water,
debris and impinged organisms are removed from the screen surface by a
high-pressure spray wash. Screen wash cycles are triggered either
manually or by a certain level of head loss across the screen
(indicating clogging). By definition, this technology works by
collecting (i.e., impinging) fish and shellfish on the screen. Ideally,
traveling screens would be used with a fish handling and return system,
as discussed below. The return system should be regularly maintained to
prevent biofouling or other blockages that may affect survival.
ii. Cylindrical Wedgewire Screens
Unlike traveling screens, cylindrical wedgewire screens are a
passive intake system. Wedgewire screens, also called ``V'' screens or
profile screens, consist of triangular-shaped wires arrayed on a
cylindrical framing system, with long slots between the wires,
lengthwise along the screen. Slot sizes for conventional traveling
screens typically refer to a square opening (\3/8\ inch by \3/8\ inch)
that is punched, molded, or woven into the screen face. Wedgewire
screens are constructed differently, however, with the slot size
referring to the distance between longitudinally adjacent wires. These
screens are designed to have a low through-slot velocity (less than 0.5
fps or 0.15 meter per second) and typically have smaller slot sizes
than a coarse mesh traveling screen. The entire wedgewire structure is
submerged in the source waterbody. (See Chapter 6 of the TDD for an
illustration of these screens.)
When necessary conditions regarding placement in the waterbody are
met, these screens exploit physical and hydraulic exclusion mechanisms
to achieve consistently high impingement reductions, and as a result,
impingement mortality reductions. Wedgewire screens require an ambient
crossflow current to maximize the sweeping velocity provided by the
waterbody. The screen orientation allows the crossflow to carry
organisms away from the screen allowing them to avoid or escape the
intake. Lower intake velocities also allow fish to escape from the
screen face. Entrainment reductions can also be observed when the
screen slot size is small enough and intake velocity is low enough to
exclude egg and larval life stages.\59\ Limited evidence also suggests
that extremely low intake velocities can allow some egg and larval life
stages to avoid the intake because of hydrodynamic influences of the
crossflow. Therefore, performance is dictated largely by local
conditions that are further dependent on the source waterbody's
biological composition. Costs of wedgewire screens increase
significantly as slot size and design intake velocity decrease because
the cumulative size of the screen (or number of screens) must grow in
order to accommodate the same flow of cooling water. Wedgewire screens
can also employ cleaning and deicing systems such as air-burst sparging
to help maintain open intake structures and low intake velocities.
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\59\ Note that this is entrainment exclusion and not necessarily
related to the survival of entrainable organisms.
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According to data from the industry questionnaire, EPA's site
visits, and industry documents, dozens of facilities across the United
States employ cylindrical wedgewire screens. However, wedgewire screens
are not feasible for all facilities, particularly where intakes are in
shallow water or have limited shoreline frontage. Also,
[[Page 48335]]
wedgewire screens might not be feasible where the size and number of
wedgewire screens would interfere with navigation of vessels. As
described above, locations also need to have an adequate source water
sweeping velocity. Most of the performance data for wedgewire screens
is based on coarse mesh slot sizes with an intake velocity of 0.5 fps.
Because it is extremely difficult to measure impingement and
entrainment reductions in the field, most performance data for
wedgewire screens is based on barge and lab studies.\60\ EPA does not
have data on the performance of fine mesh wedgewire screens on
entrainment survival. Consequently, EPA has considered wedgewire
screens only for impingement mortality. For additional discussion of
the specific design and operation of cylindrical wedgewire screens, see
Chapter 6 of the TDD. The following section discusses the importance of
mesh size to impingement mortality and entrainment reductions.
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\60\ EPA expects that properly designed wedgewire screens have a
design intake velocity of 0.5 fps, therefore intakes with wedgewire
screens will meet the impingement standard at Sec. 125.94(c)(2) and
there is no need to separately pre-approve this technology as in the
remanded 2004 Phase II rule.
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iii. Screen Mesh Size Considerations
Coarse Mesh
Coarse mesh traveling screens are the typical traveling screen
fitted on the majority of cooling water intakes. A large number of
facilities have intake screens with \3/8\-inch (9.5 mm) mesh
panels.\61\ This size mesh is common because, as a general rule, the
maximum screen slot size is never larger than one-half of the condenser
tube diameter (the condenser tubing is the narrowest point in the
cooling water system and, as such, is most susceptible to clogging from
debris), and this tubing is typically \3/4\ or \7/8\ inch in diameter.
Mesh of \3/8\-inch (roughly 9.5 mm) size does not prevent entrainment
and without any other precautions can lead to high mortality of
impinged fish. Coarse mesh traveling screens have been in use by both
power plants and manufacturers for more than 75 years and represent the
baseline technology. Similarly, the majority of successful wedgewire
installations are coarse mesh.
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\61\ In today's rule the EPA recognizes that \1/2\- by \1/4\-
inch mesh is used in some instances and perform comparably to the
\3/8\-inch square mesh.
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Fine Mesh
Fine mesh traveling and wedgewire screens are similar to coarse
mesh screens. The only difference is the size of the screen mesh. Fine
mesh traveling screens have been in use since the 1980s. Typically,
facilities have incorporated fine mesh in an effort to reduce
entrainment. The mesh size varies, depending on the organisms to be
protected, but typically range from 0.5 to 5 mm. Data in the record
demonstrate that entrainment typically decreases as mesh size
decreases. Slot sizes larger than 2 mm do not prevent eggs from passing
through the screen. Converting traveling screens from coarse mesh to
fine mesh often requires adding more screens in order to maintain the
same flow, since the open area of a fine mesh screen is less than the
open area of a coarse mesh screen. Adding more screens is one way to
maintain that flow.\62\ EPA estimates that as many as 17 percent of
existing intakes could not be enlarged to accommodate a 2 mm mesh, and
as many as 55 percent of existing intakes could not accommodate a 0.5
mm slot size under conditions of low-intake velocities. For these
reasons, fine mesh screens are available for some locations, but they
are not the best performing technology and are not an available
technology for the industry as a whole for IM&E. For more details, see
Chapter 6 of the TDD.
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\62\ A facility could also increase its intake velocity.
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b. Barrier Nets
Barrier nets are nets that fully encircle the intake area of water
withdrawal, from the bottom of the water column to the surface, and
prevent fish and shellfish from coming in contact with the intake
structure and screens. According to data from the industry
questionnaire (as of the year 2000), at least a half dozen facilities
employ a barrier net. Typically, barrier nets have large mesh sizes
(e.g., \1/2\-inch or 12.7 mm) \63\ and are designed to prevent
impingement. Because of the large mesh size, they offer no reduction in
entrainment. They are often deployed seasonally, wherever seasonal
migrations create high impingement events or to avoid harsh winter
conditions that jeopardize integrity of the net. Barrier nets also
prevent impingement of shellfish on the intake traveling screen.
Shellfish such as crustaceans can pose a unique issue for traveling
screens; shellfish are not impinged, but they can attach to the
traveling screen surface and are not removed from the traveling screen
by pressure wash sprays. Barrier nets have been shown to be helpful in
this regard.
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\63\ Barrier net mesh sizes vary, depending on the
configuration, level of debris loading, species to be protected, and
other factors.
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c. Aquatic Filter Barriers
Aquatic Filter Barriers (AFBs) consist of water-permeable fabric
panels with small pores (less than 20 microns). They are similar to
barrier nets in that they extend throughout the area of water
withdrawal from the bottom of the water column to the surface. AFBs
reduce both impingement mortality and entrainment because they present
a physical barrier to all life stages. The surface area of an AFB is
quite large compared to a traveling screen, allowing for extremely low
water velocities. The low velocity allows non-motile organisms to drift
away. EPA is aware of one power plant that used an AFB but notes that
this facility recently ceased operations.\64\ EPA has updated
performance data for AFB for small flow intakes, but it does not have
enough data to evaluate the technology at large intakes or in all water
bodies. EPA does not consider this technology to be demonstrated and
available as a nationwide BTA candidate.
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\64\ This facility ceased operations for reasons unrelated to
any requirements or measures addressing cooling water intake
impingement or entrainment.
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d. Collection and Return Systems
Conventional traveling screens were not designed initially with the
intention of protecting fish and aquatic organisms that become impinged
against them. The organisms were often handled in the same manner as
debris on the screens. Marine life can become impinged against the
screens because of high intake velocities that prevent their escape.
Prolonged contact with the screens can suffocate organisms that are
unable to escape or result in descaling injury and latent mortality.
Organisms that survive initial impingement and removal are not always
provided with a specifically designed mechanism to return them to the
waterbody and are often handled in the same way as other screening
debris. Other objects, such as leaves and trash, that are collected on
the screen are typically removed with a high-pressure spray and
deposited in a dumpster or debris return trough for disposal. Exposure
to high pressure sprays and other screening debris can cause
significant injuries that result in latent mortality or increase the
susceptibility to predation or re-impingement. Screens are rotated
periodically on a set time interval or when the pressure differential
between the upstream and downstream faces exceeds a set value.
Conventional traveling screen systems have been modified to reduce
impingement-related mortalities with
[[Page 48336]]
collection and return systems. In its simplest form, these systems are
composed of a return flume or trough with sufficient water volume and
flow to enable impinged organisms to return to the source water. Return
systems should be designed to avoid predation and latent mortality
while organisms are in the flume, maintain an appropriate water depth
in the flume for high survival of the organisms, located at an
appropriate elevation to avoid large drops of the organisms back to the
surface water (or large hydraulic jumps if the end of the return is
below the water's surface), and sited to avoid repeated impingement of
the organisms by the intake structure.
Some facilities have modified conventional coarse mesh traveling
screen systems to reduce impingement mortality. They did this by
removing fish trapped against the screen and returning them to the
receiving water with as few injuries as possible. The first modified
screens, also known as Ristroph screens, feature capture and release
modifications. In the simplest sense, these screens are fitted with
troughs (also referred to as buckets) containing water that catch the
organisms as the screen rises out of the water and the organisms are
sprayed off of the screen. The return component consists of a mechanism
to remove impinged fish gently from the collection buckets, such as a
low-pressure spray. The buckets empty into a collection trough that
returns fish to a suitable area in the source waterbody. These modified
screens have shown significant reductions in impingement mortality
compared with unmodified screen systems.
Data from early applications of the Ristroph screen design showed
that while initial survival rates might be high at some installations,
latent mortality rates were higher than anticipated. This indicated
that organisms could sustain significant injuries during the
impingement and return process that were not immediately fatal.
According to a study conducted by Ian Fletcher in the 1990s (see DCN 5-
4387), industry identified several additional critical screen
modifications to address latent mortality. These included redesigning
the collection buckets to minimize turbulence, adding a fish guard
rail/barrier to prevent fish from escaping the collection bucket,
replacing screen panel materials with ``fish-friendly,'' smooth woven
mesh, and using a low-pressure wash to remove fish before any high-
pressure spray to remove debris. The Fletcher analysis also identified
longer impingement duration, insufficient water retention in the
buckets, and exposure to the air and temperature extremes as conditions
that could negatively affect fish survival. Finally, these findings
indicate that modified Ristroph screens must be rotated continually
instead of the periodic rotation schedule common with conventional
screen systems. Performance data for modified traveling screens with
fish-friendly fish return systems, sometimes referred to as post-
Fletcher modifications, show low levels of impingement mortality across
a wide variety of waterbody types and fish species. Additionally,
recently developed screen designs (such as the Passavant Geiger,
Beaudrey WIP, and Hydrolox screens) have also shown promise in reducing
impingement mortality.
For additional and more detailed discussion of the specific design
and operation of these screen modifications, see Chapter 6 of the TDD.
3. Other Technological Approaches
a. Intake Location and Velocity Caps
The most common intake location for a cooling water intake
structure is along a shoreline. In some water bodies, however,
shoreline locations are thought to have a potential for greater
environmental impact because the water is withdrawn from the most
biologically productive waters, especially those containing a high
density of organisms in earlier life stages, such as nursery areas.
Some facilities employ an offshore intake to withdraw water from less
biologically productive areas to reduce impingement and entrainment
relative to intakes in more productive shoreline areas. Reduction in
impingement mortality and entrainment due to intake location is highly
site-specific. The greatest potential for reductions is found with far
offshore locations at distances of several hundred feet, not found on
many rivers and streams. Both depth and the offshore location must be
evaluated to determine whether fish densities and species distribution
there are substantially different than those near the shoreline. Two
areas where far offshore locations are commonly used today are the
oceans and Great Lakes.
EPA found that several offshore intakes are fitted with a velocity
cap.\65\ Velocity caps are a physical structure rising vertically from
the sea bottom and are placed over the top of an intake pipe. Intake
water is withdrawn through openings in the velocity cap so that it
converts the direction of water flow into the pipe from vertical to
horizontal. The velocity cap does not act to reduce the velocity,\66\
but the horizontal flow provides a physiological trigger in fish, which
induces an avoidance response to reduce impingement mortality. The
velocity cap further serves to limit the zone of influence of the
intake to the depth level at which the velocity cap is situated, thus
affecting only the life stages that live at that depth. Velocity caps
are also usually equipped with supports and bar spacing selected to
prevent larger aquatic organisms (e.g., sea turtles or marine mammals)
from entering the intake pipe. Because velocity caps operate under the
principle that the organisms can escape the current, they do not offer
entrainment reductions over and above those achieved by being located
offshore. Reductions in entrainment observed with velocity caps occur
because of the difference in organism densities in far offshore deep
water compared to a surface intake at the shoreline.
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\65\ Others can be fitted with a cylindrical wedgewire screen,
or might simply be an open pipe.
\66\ EPA's data show that velocity caps operate at velocities
above and below the 0.5 fps and can be effective using either
design.
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Far offshore velocity caps have limited application in oceans and
the Great Lakes, are not available in other water bodies, and are
therefore not available as a candidate for a national BTA. However, the
technology is a demonstrated high performing technology, and is
therefore included as a compliance alternative for those facilities
where the technology is available. For additional and more detailed
discussion of the specific design and operation of offshore intake
locations and velocity caps, see Chapter 6 of the TDD.
b. Reduced Intake Velocity
Impingement mortality can be reduced greatly by reducing the
through-screen velocity in any screen.\67\ Reducing the rate of flow of
cooling water through the screen (through-screen velocity) to 0.5 fps
or less reduces impingement of most fish because it allows them to
escape the intake current. (See 66 FR 65274 [December 18, 2001] and DCN
2-028A, EPRI's ``Technical Evaluation of the Utility of Intake Approach
Velocity as an Indicator of Potential Adverse
[[Page 48337]]
Environmental Impact Under Clean Water Act 316(b).'') As a result, some
facilities have designed and operate their modified traveling screens
or wedgewire screens so as not to exceed a through-screen velocity of
0.5 fps. Swim speed studies demonstrate that for most facilities, an
intake velocity of 0.5 fps or less will result in 96 percent or better
reductions in impingement mortality for most species. EPA notes that
preliminary results from recent studies of fine mesh screens suggest
that at even lower intake velocities such as 0.25 fps, some
hydrodynamic influences may reduce entrainment mortality even more,
because flow dynamics are nonlinear. It is unclear as to whether such
observations hold true when cooling water withdrawals (water volumes)
are large. While higher intake velocities are sufficiently protective
for some species of fish, the higher intake velocities are not
necessarily protective of all life-stages. For example, younger fish
may not be strong swimmers or may have not a developed avoidance
response. Therefore higher intake velocities are not a high performing
technology. As noted previously, low intake velocity has limited
application, and is therefore not available as a candidate BTA
technology. However, the technology is a demonstrated high performing
technology, and is therefore included as a compliance alternative for
those facilities where the technology is available.
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\67\ Limited lab studies indicate that entrainment also can
decrease as through-screen velocity decreases and that through-
screen velocity can have an effect on entrainment survival rates,
although such data is extremely variable by species (see DCN 10-6802
and DCN 10-6803). In any case, EPA does not consider a reduced
intake velocity as an effective technology for reducing entrainment,
because entrainable organisms generally lack motility.
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D. Technology Basis for Today's Final Rule
As described above, EPA examined the full range of technologies
that reduce impingement or entrainment or both. From an assessment of
all factors, EPA identified one technology that is best technology
available for minimizing the adverse impacts of impingement mortality
at existing facilities: modified traveling screens with a fish-friendly
fish return. EPA identified no single best technology that is available
for minimizing entrainment at existing facilities for today's final
rule. For new units at existing facilities, EPA identified mechanical
draft wet cooling systems as BTA for both impingement and
entrainment.\68\
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\68\ Although EPA also identified velocity reduction to 0.5 feet
per second or less as a candidate best performing technology for
impingement mortality, EPA did not promulgate requirements to reduce
intake velocity as BTA because it is not available at all
facilities; however, the final rule does allow facilities to comply
with intake velocity of 0.5 feet per second or less where available.
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EPA did not identify any single technology or group of technology
controls as the basis for establishing the national BTA standard for
entrainment for existing units. Instead, EPA has established a national
BTA standard for entrainment for existing units that requires
determination of BTA entrainment requirements on a site-specific basis
in a structured permitting setting. The framework for determining
entrainment requirements provides for the consideration at a minimum of
certain specified factors that must be considered in the Director's
determination of the BTA controls.
1. Alternative Impingement Mortality Standards for Existing Units
After considering all factors identified above, EPA has concluded
that modified traveling screens, such as modified Ristroph screens and
equivalent modified traveling screens with fish-friendly fish returns,
are a best technology available for minimizing impingement
mortality.\69\ These screens use \3/8\ inch, or similar, mesh with
collection buckets designed to minimize turbulence, a fish guard rail/
barrier to prevent fish from escaping the collection bucket; ``fish-
friendly,'' smooth, woven or synthetic mesh; and a low-pressure wash to
remove fish before any high-pressure spray to remove debris. The fish
removal spray must be of lower pressure, and the fish return must be
fish friendly, provide sufficient water and minimize turbulence.
Modified traveling screens generally must be rotated continually to
minimize aquatic exposure to impingement or to the air and thus obtain
the highest reductions in impingement mortality.
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\69\ EPA also considered recent screen designs (such as the
Passavant Geiger, Beaudrey WIP, and Hydrolox screens) in evaluating
impingement mortality data. In fact, the data set used to calculate
the impingement mortality performance standard at Sec. 125.94(c)(7)
included a study of performance at a facility employing a Passavant
Geiger screen, as well as a facility employing a Beaudrey WIP
screen.
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Under the seventh option for complying with the BTA impingement
mortality standard in today's final rule, a facility may rely on any
technology it chooses so long as it demonstrates through biological
compliance monitoring that it achieves the required 12 month
impingement mortality performance standard \70\ that EPA calculated
based on the performance of the BTA technology--modified traveling
screens with fish return. As discussed in the TDD (see, for example,
TDD Exhibits 11-1 and 11-3), EPA based the 12 month percent mortality
performance at Sec. 125.94(c)(7) on data from facilities with
traveling screens modified with features to improve the post-
impingement survival of organisms such as smooth mesh, continuous or
near-continuous rotation of the screens, buckets with guard rails, low
pressure sprays for collecting fish, and fish return systems. The
statistical basis for the 12 month impingement mortality performance
standard includes 26 sets of 12 month survival percentages across 17
facilities demonstrating average impingement mortality rates ranging
from 1.6 to 48.8 percent under conditions of 18 to 96 hour holding
times. EPA established the 12 month percent mortality as 24 percent
which is the arithmetic average of the impingement mortality rates from
the 17 facilities. (This is consistent with EPA's proposed rule use of
expected value of the beta distribution which can be calculated as the
arithmetic average.) Note: The 12 month impingement mortality
performance standard means that no more than 24 percent of the impinged
fish may die or alternatively at least 76 percent of the impinged fish
must survive. EPA has occasionally used average annual limitations in
the effluent guidelines program, most recently for the pulp and paper
industry category (40 CFR 430, promulgated in 1998). In these
instances, such as the technology-based BAT, EPA has defined the annual
average limitations to be the average level demonstrated by the
technology. Thus, EPA's approach to calculating the 12 month percent
survival performance standard is consistent with past practice.
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\70\ In the record, EPA may also refer to this as the 12-month
percent survival performance standard, % SPS, or the IM performance
standard.
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EPA recognizes that variability in the technology performance
occurs due to changes in seasons, differing intake locations, higher
mortality of certain species, and speciation found in different water
bodies. By using a full 12 months of data, EPA has ensured that the
resulting performance standard reflects the widest range of potential
conditions present in EPA's database. EPA has further incorporated
variability into the 12 month impingement mortality performance
standard by basing it on data from 17 facilities which collectively
performed more than 1,500 sampling events beginning as early as 1977.
EPA notes that seven facilities had mortality rates less than 10
percent which provides evidence that facilities can, and have,
maintained and operated their systems in a manner consistent with the
performance standard. Another four facilities demonstrated impingement
mortality rates significantly greater than the performance standard of
24 percent, however, EPA notes these facilities were
[[Page 48338]]
not required to optimize their technology performance as part of their
study, and data collection was not required to achieve a certain level
of performance.\71\ In each study, EPA has identified elements of the
technology operation that a facility could modify to achieve the 12
month percent impingement mortality performance standard. By using the
12 month percent impingement mortality performance standard, EPA has
ensured that the resulting performance standard reflects the widest
range of potential conditions present in EPA's database. In addition to
those studies meeting the criteria for use in the 12 month percent
survival performance standard calculations, there are further studies
in EPA's record that provide additional performance data showing
facilities can, and have, maintained and operated their systems in a
manner consistent with the performance standard. EPA's record includes
approximately 250 total studies related to impingement (see TDD Exhibit
11A-1).
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\71\ For example, the Indian Point study states ``Because of the
preliminary nature of this study, the effectiveness of the
continuously operating fine mesh traveling screen has not been fully
evaluated. Further studies incorporating controls for survival
testing, regulation of spray wash pressures, collection efficiency
tests, sampling during peak impingement periods for all important
species, and better holding facilities, will provide more conclusive
results.''
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Despite the overwhelming evidence that the 12 month percent
survival performance standard of 24 percent was consistent with
demonstrated performance for the best technology, EPA considered other
alternatives that might incorporate more variability into a performance
standard. EPA concluded that none of the alternatives were consistent
with the need for facilities to demonstrate ongoing maintenance and
operations over a long period of time, such as a year. Any alternative
would be less stringent and would allow facilities to target long-term
performance at a level that would be less than the optimal performance
demonstrated by facilities with the technology in place. Further, the
12-month average impingement mortality performance standard will
require a facility to actively evaluate performance during the 12 month
period enabling the facility to optimize the technology to improve
performance to counterbalance a result above the standard by one below
the standard. If EPA had included a monthly average standard, it would
have similarly needed to incorporate allowances for exceedances.
Allowing for exceedances would have provided no incentive for improving
operations for such exceedances. Therefore, EPA determined that the 12
month impingement mortality performance standard is sufficient to
ensure performance consistent with best technology available. For this
reason, EPA is not promulgating the monthly average that was included
in the proposal. EPA's decision also is consistent with effluent
guidelines where compliance with the monthly average limitation is not
required for facilities subject to a longer term limitations such as an
annual average limitation (e.g., pulp and paper 40 CFR 430 Subpart B
AOX limitation).
EPA did not include in the final rule a number of requirements it
had considered at proposal. The proposed rule would have required the
seasonal deployment of barrier nets on estuaries and oceans as one
element of the best technology available for minimizing the impingement
mortality of shellfish. EPA has opted not to include any specific
requirements for shellfish in the final rule, because EPA's review of
the impingement data it used to develop today's final rule impingement
performance standard includes data that incorporate shellfish survival
as part of the performance standard. Further, as previously explained,
the final rule provides for the Director to establish additional
requirements where necessary.
EPA expects facilities complying with Sec. 125.94(c) of today's
rule by compliance option (7) to track their compliance with the 12
month percent impingement mortality performance standard on an ongoing
basis and to proactively modify their technology or operations when a
trend in the sampling suggests that they might be in danger of
exceeding the 12 month percent impingement mortality performance
standard in the future. The 12 month percent impingement mortality
performance standard requires that impingement mortality not exceed 24
percent, calculated as the sum total number of fish that were impinged
and died within the holding time divided by the sum total number of
fish impinged for a 12-month period. EPA expects the ratio will be
calculated based either on direct sampling counts, or based on both
counts being extrapolated to represent annual counts. Because comments
provided data that expanding the proposed 24 to 48 hour holding time
requirement would generally not affect the observation of mortality due
to impingement, the regulation allows for holding times from 18 to 96
hours.
As explained in more detail in Section VI.E and G below, the BTA
technology for impingement does not minimize adverse environmental
impacts associated with entrainment.
2. Entrainment Standards for Existing Units
As discussed below, EPA is not basing BTA for entrainment at
existing units (that is, excluding new units at existing facilities) on
closed-cycle recirculating cooling systems, a highly effective
technology, because this technology is not available nationally and
therefore does not represent BTA. EPA also has not identified any other
effective, available and demonstrated candidate technology (or
combinations of technologies) for entrainment reduction at existing
units that is available nationally. For other entrainment technologies
that might be available on a site-specific basis, see Section VI.E.2
below and Chapter 6 of the TDD. EPA did not select the other flow-
reduction technologies (such as variable-speed drives and seasonal flow
reductions) as the technology basis for entrainment control measures
because these technologies are not uniformly best and are not broadly
available for most facilities. Further, EPA has not identified a basis
for subcategorizing existing units at which flow reduction technologies
are feasible. The effectiveness, availability, and utility to a given
facility of flow reduction or other entrainment reduction methods
depends on site-specific geographical and biological conditions as well
as operations of the facility. For example, this is the reason that EPA
did not select relocation of a shoreline intake to far offshore as a
technology basis for the BTA entrainment standard because this
technology is not widely available for most facilities.
3. Impingement and Entrainment Standards for New Units at Existing
Facilities
In contrast to existing units, installing a closed-cycle cooling
system at a new unit is far less complex. The technology is also highly
effective, generally achieving greater than 95 percent reductions in IM
and E (mechanical draft (wet) cooling towers achieve flow reductions of
97.5 percent for freshwater and 94.9 percent for saltwater sources, or
by operating the towers at a minimum of 3.0 and 1.5 cycles-of-
concentration, respectively). These reductions in flow and the
concurrent reductions in impingement and entrainment impacts are among
the highest reductions in adverse
[[Page 48339]]
environmental impact possible at an intake structure.\72\
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\72\ Note that these metrics are not explicit requirements for
closed-cycle recirculating systems. They simply represent what EPA
views as examples of characteristics of a properly operated and
maintained closed-cycle recirculating system, as defined at Sec.
125.92(c)(1).
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As described below, EPA has concluded that new units, in contrast
to existing units, have much greater flexibility in terms of cooling
system design, construction scheduling, and other factors that help
minimize many of the negative aspects associated with closed-cycle
cooling. For a more detailed discussion of this rationale, see below.
Under the final rule, a new unit at an existing facility, where the
facility that withdraws or will withdraw more than 2 mgd when the new
unit begins operating will have requirements similar to the
requirements of a new facility in Phase I. Under the rule, a new unit
(as defined at Sec. 125.92(u) and described above) is required to have
a flow limited to that which is commensurate with a closed-cycle
recirculating system as it would be applied to the new unit. Today's
final rule also includes an alternative approach (similar to Track II
in Phase I), in which a facility could comply with the new unit
standards by demonstrating that the technologies and operational
measures employed will reduce the level of adverse environmental impact
from any cooling water intake structure used to supply cooling water to
the new unit to a comparable level to that achievable by implementing a
closed-cycle recirculating system as defined at Sec. 125.92(c)(1).
As discussed above, today's final rule defines a ``new unit'' at an
existing facility as a stand-alone unit the construction of which
commences after the effective date of today's final rule. New unit
includes stand-alone units that are added to a facility for purposes of
the same general industrial operation as the existing facility. This is
in contrast to the definition of new facility, where a new facility
does not include new units that are added to a facility for purposes of
the same general industrial activity (40 CFR 125.83). The provision
``for purposes of the same general industrial operation'' is explicitly
included in today's final rule definition of new unit at an existing
facility for clarity. A new unit may have its own dedicated cooling
water intake structure, or the new unit may use an existing or modified
cooling water intake structure. Any unit at an existing facility that
does not meet the new unit definition in today's rule is subject to the
existing unit provisions.
EPA is adopting more stringent requirements for new units at
existing facilities because such new units can be designed and
constructed without many of the additional expenses and operational
disadvantages associated with retrofitting an existing unit to closed-
cycle cooling. For example, the incremental downtime that can be
associated with retrofitting to closed-cycle cooling is avoided
altogether at a new unit. In addition, when new units are added, the
condensers can be configured for closed-cycle, reducing energy
requirements (by substantially reducing the turbine backpressure energy
penalty) and associated air emissions.
The three factors that led EPA to reject closed-cycle cooling as
BTA (described below in Section E) are far less relevant for new units
at existing facilities than for retrofitting existing units. This
section discusses why EPA concluded that each factor is not a
significant concern for new units, and why the record supports EPA's
conclusion that closed-cycle cooling is an available and feasible
technology for new units at existing facilities.
Land Availability: In contrast to retrofitting the entire
existing facility, the amount of space dedicated to closed-cycle for
the new unit will be limited to the new unit rather than the entire
facility. As a result, space constraints will be much less of an issue.
New units also present the opportunity to design an optimized closed-
cycle recirculating system for the new unit. Retrofitting an existing
facility for the full intake flow of the facility would require a
facility to identify (or possibly obtain) enough space to accommodate
the cooling towers and associated equipment. Furthermore, new units and
their corresponding cooling system can be built in stages rather than
as a facility-wide retrofit, and since the new unit has not yet been
built, there is no energy reliability concern (discussed further
below).
Air Emissions: EPA expects that emissions are
significantly less of a concern at new units. The condensers will be
optimized for closed-cycle, reducing energy requirements, and high-
efficiency cooling towers can be incorporated into the design of the
new unit, potentially allowing for smaller cooling towers to be
installed. Turbine backpressure and the associated energy penalty can
be substantially reduced in a new unit, but EPA acknowledges new units
will still have auxiliary power consumption for fans. Therefore energy
penalties and air emissions for tower operations can be minimized
(though not eliminated). The emissions effects of requiring closed-
cycle cooling at new units at existing facilities is similar to the
effects of this requirement at new facilities and will not pose an
unacceptable impact. For more information, see Chapters 6, 8, and 10 of
the TDD. Further, the new unit is likely to be more efficient and emit
less pollution than existing units, therefore net emissions are
expected to decrease as new units replace older, less efficient units.
Remaining Useful Plant Life: This is clearly not an issue
for new units. A new unit has its full useful life remaining and thus
would experience the maximum possible reductions in adverse
environmental impacts throughout that useful life.
EPA does not expect that the requirements for new units at existing
facilities will be a disincentive for facilities to repower existing
units. The requirements only apply to stand-alone units. Requirements
for entrainment at repowered units will thus be determined by the
Director. EPA notes, however, for facilities that do choose to repower
an existing unit, the costs of employing a closed-cycle cooling system
are not a barrier, as described above. In fact, some facilities may
find closed-cycle cooling to be less costly over the long-term. For
example, in locations with limited water resources such that once-
through cooling of an additional unit is not possible, overall
reliability will be increased by using closed-cycle cooling systems.
EPA also recognizes that installing closed-cycle cooling systems at
new units is a prevailing trend in industry, regardless of the
regulatory requirements imposed by today's final rule. For example, see
DCN 12-6672 in the record for today's rule, and DCNs 2-009 and 4-4023C
(from the Phase I and Phase II dockets, respectively). These documents
show that, on the basis of responses from facilities to the 316(b)
industry questionnaire, facilities constructed in recent years are
significantly more likely to employ closed-cycle cooling.
EPA recognizes that at some point in the future, every unit will be
rebuilt, replaced or repowered (or retired). EPA projects that
approximately 227 MW in new generating capacity per year, will be
subject to the new unit provision, reflecting the general industry
trend towards more efficient units. EPA's analysis projects an
equivalent number of new units at manufacturing facilities will be
constructed each year. See the Phase I rule for more information
[[Page 48340]]
regarding the affordability and barrier to entry analysis for new
construction.
EPA notes that the new unit provision is an important element of
the final rule, given the generally long lifespan of equipment at
industrial facilities. For example, generating units at a power plant
are often projected to have a 50-year lifespan. As a result, these
facilities have a slow rate of ``evolution'' in adopting newer
technologies. By requiring closed-cycle cooling in new units, EPA is
ensuring (along with the Phase I rule) that no new once-through cooling
units or facilities will be built.
E. Option Selection
After considering all factors identified above, EPA has concluded
that it should base the BTA impingement mortality standard for existing
units on the performance of traveling screens (e.g., modified Ristroph
screens and equivalent modified traveling screens with fish-friendly
fish returns)--the ``best technology available'' for minimizing
impingement mortality. While there are a number of technologies that
may perform as well as or better than traveling screens, these
technologies were not feasible or available on a nationwide basis and
thus were not the ``best technology available'' for standard setting
purposes. Moreover, the impingement mortality standard for existing
units provides a number of alternatives, including some of these other
technologies, for compliance with the standard. EPA based the BTA
impingement mortality standard for existing units on the performance of
traveling screens because EPA concluded that this technology is
effective, widely available, feasible,\73\ and does not lead to
unacceptable non-water quality impacts.
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\73\ As part of the feasibility determination, EPA found that
the costs associated with the IM standards are reasonable for the
industry as a whole.
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As explained above, EPA has not identified a technology or
combinations of technologies that EPA concluded is ``best technology
available'' for minimizing entrainment at existing units. EPA did not
identify a technology for reducing entrainment that is effective,
widely available, feasible, and does not lead to unacceptable non-water
quality impacts. As such, EPA is unable to identify a nationally
applicable BTA technology on which to base the BTA entrainment
standard.
While EPA concluded that closed-cycle recirculating systems reduce
entrainment (and impingement mortality) to the greatest extent and are
the most effective performing technology, after careful consideration
of multiple factors, EPA concluded that a closed-cycle recirculating
system is not the ``best technology available'' for existing units
within the meaning of the statute. It is not the best technology
available on a national basis for minimizing adverse environmental
impact and should not form the sole basis for the BTA standard for
entrainment for the reasons explained below.
EPA also determined that there were no other ``available''
technologies for entrainment whose performance came close to that of
closed-cycle recirculating systems. Further, while reduced intake
velocity was a very effective control for impingement and may also
reduce entrainment of some life stages of fish and shellfish, it does
not significantly reduce entrainment of eggs and non-motile stages of
larvae, and it is not physically available in many locations.
EPA has broad discretion in what factors it should consider when it
determines the best technology available for minimizing the adverse
environmental impacts of cooling water intake structures. As both the
U.S. Supreme Court and the Second Circuit Court of Appeals have
underscored, section 316(b) is ``sui generis,'' in a class by itself,
unencumbered by ``specified statutory factors,'' Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 222 (2009); Riverkeeper, Inc. v. EPA,
358 F, 3d 174,187 (2d Cir. 2004). The Second Circuit explicitly
rejected the argument that, because section 316(b) does not mention
costs or other factors, EPA cannot give costs or other factors ``any''
weight in deciding what is the best technology. Riverkeeper, Inc., 358
F.3d at 195. Furthermore, the Second Circuit recognized that EPA may
base its decision on factors other than the effectiveness of a given
technology in reducing impingement and entrainment and that EPA is
entitled to deference in deciding what weight to give to the factors it
considers in its BTA determination. Riverkeeper, Inc., 358 F.3d at 196.
As noted, costs are one factor EPA may consider in its BTA
determination. Here, while EPA did consider costs, costs were not a
dispositive factor in the decision to reject closed-cycle cooling as
the basis for a uniform national BTA entrainment standard. EPA did not
reject closed-cycle cooling here either because it was not economically
achievable or because the costs of closed-cycle would exceed its
benefits. Instead, EPA rejected closed-cycle cooling as the technology
basis for a uniform national BTA entrainment standard based on three
factors: Land availability, air emissions, and remaining useful plant
life as explained below.
Central to EPA's evaluation of the availability of closed-cycle as
BTA was EPA's new understanding of the limitations of technologies
other than closed-cycle in reducing entrainment. This presented EPA
with a sharper choice than it had in the Phase II rule. For today's
rulemaking, EPA took a second look at the data it had relied on in the
Phase II rule, particularly in light of new data received since the
Phase II rule. As a result, EPA learned that entrainment exclusion does
not necessarily equate to entrainment survival (76 FR 22185), a key
underpinning to EPA's BTA standards for entrainment in the remanded
Phase II rule.
For the remanded Phase II rule, EPA had established national BTA
performance standards for entrainment (and impingement) and included a
number of different alternative means to achieve the standards. First,
if a facility demonstrated that it could achieve reductions in flow
associated with closed-cycle cooling, the facility met the BTA
performance standards. Alternatively, a facility could demonstrate that
it met the entrainment performance standards by a combination of
installed technology and operational or other measures (including
restoration measures). See 69 FR 41590 for a description of the final
Phase II rule. Critical to EPA's decision to provide an array of
choices for achieving the national BTA entrainment performance
standards was a key factual conclusion. That conclusion was that a
number of technologies would achieve performance reducing entrainment
that was ``comparable'' to that of closed-cycle cooling. Consequently,
for the Phase II rule, EPA established an entrainment performance
standard of 60 to 90 percent based on data it reviewed for the Phase II
rulemaking. See 69 FR 41598 for information on EPA's rationale for
establishing compliance alternatives as part of the final rule.
In the Phase II rule, while EPA looked to the performance of
closed-cycle as the benchmark against which it evaluated technologies
for the BTA standards, EPA did not mandate the achievement of flow
reductions that were in all cases equivalent to closed-cycle. Given
that the available data supported the view that there were other much
less expensive technologies that obtained significant reductions in
entrainment, EPA was comfortable with a BTA standard that required
achievement of a level of performance
[[Page 48341]]
that was generally comparable though not equivalent to closed-cycle.
Since the Phase II rulemaking, EPA has received new data and
learned that its understanding of entrainment technology performance
was incomplete. Following the remand of the Phase II rule, EPA
reexamined the data as well as new information on the performance of
various entrainment control technologies it had previously reviewed. As
a result, EPA determined that its conclusion regarding the capability
of these other technologies--a conclusion on which the Agency had based
the Phase II BTA performance standards--was no longer supported by the
data EPA had before it.
There is a second additional consideration that further required
EPA to focus renewed attention on how widely available closed-cycle
cooling in fact was nationally. The Second Circuit decision in the
Phase II rule removed restoration as a compliance option that EPA could
consider. The decision underscored that restoration measures--one
compliance option included in the Phase II rule--were not an available
tool for complying with any 316(b) standard. However, at the time of
the Phase II promulgation, EPA expected some facilities would use
restoration in lieu of closed-cycle cooling, thus making closed-cycle
or reductions commensurate with closed-cycle feasible (76 FR 41609).
With the court decisions that restoration was not an available tool for
compliance, compliance with a standard based on closed-cycle cooling
alone is less feasible than EPA had expected at the time of the Phase
II promulgation.
The changed landscape has narrowed markedly EPA's range of options
with respect to the technology basis for today's BTA standards. The gap
between the performance of the most effective entrainment reduction
technologies (closed-cycle) and other less expensive technologies has
widened significantly. EPA's narrowed range of compliance technology
choices required EPA to look even more closely at the feasibility of
closed-cycle cooling and reduced flow. As the Second Circuit has noted,
EPA is clearly entitled to make its choice among alternative BTA
technologies based on more factors other than just a technology's
effectiveness in reducing impingement and entrainment. Riverkeeper,
Inc., 358 F.3d at 196. EPA identified three factors as significant in
its decision to reject closed-cycle cooling as the sole technology
basis for a national BTA entrainment standard. The three factors that
collectively support rejecting closed-cycle cooling systems as a
uniformly applicable BTA for existing facilities (except new units) are
land availability, increased air emissions and remaining useful life.
1. Land Availability and Geographical Constraints Could Be a Factor on
a Local Basis
While EPA's record indicated that the majority of facilities have
adequate available land to retrofit to closed-cycle cooling, some
facilities have land constraints.\74\ While EPA originally estimated as
many as 23 percent of facilities would not have enough space,\75\ it
observed on site visits that some facilities with a small parcel of
land could still install closed-cycle cooling by using creative
engineering solutions. On the other hand, EPA found that some
facilities with large acreage could not feasibly install cooling towers
because of local zoning or other local concerns. Thus, existing
physical space at the facility was not the only factor contributing to
uncertainty about land availability. Further review has shown that
setback distances to mitigate noise and plume abatement (based on GPS
mapping of residential areas) act as an additional constraint on land
available for retrofitting to closed-cycle, and the cost of acquiring
new land may be prohibitive for some facilities. Consequently, EPA
estimates that 25 percent or more of facilities might have one or more
constraints on land availability that would limit the ability to
retrofit for cooling towers for the entire facility. EPA lacks adequate
support to indicate that land constraints can be accommodated at
existing facilities.
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\74\ For example, in the case of fossil fuel facilities,
scrubber controls may already have been required to comply with air
rules and standards. This may reduce available land for closed-
cycle.
\75\ EPRI reported at least 6 percent of sites it evaluated were
deemed ``infeasible'' because no space was available on which to
locate a cooling tower. (DCN 10-6951) While EPA does not have access
to the facility level data, EPRI's report supports EPA's conclusion
that there is significant uncertainty around space constraints for
facilities to install closed-cycle cooling.
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EPA also attempted to determine criteria based on the data in its
record that would enable it to define a threshold for determining land
availability on a nationwide basis, but was unsuccessful. For example,
one analysis explored a threshold of approximately 160 acres per GW
(gigawatt) below which a facility could not feasibly install cooling
towers. Based on acres and the footprint of the facility and its
surroundings (primarily those sites for which EPA conducted site
visits), EPA found such an approach did not accurately identify which
facilities could feasibly install closed-cycle.
2. Increased Air Emissions Could Be a Factor on a Local Basis
As previously discussed, retrofitting closed-cycle cooling (without
also repowering) would result in increased air emissions of various
pollutants, including particulates, sulfur dioxide, nitrogen oxides,
mercury, and greenhouse gases, among others.\76\ As a result of
installing closed-cycle cooling structures, fossil-fueled facilities
would need to burn additional fuel, thereby emitting additional PM,
CO2, SO2, NOX, and Hg. Two factors are
responsible: (1) The need to compensate for energy required for
operating cooling towers, and (2) slightly lower generating efficiency
attributed to higher turbine backpressure when the condenser is not
replaced with one optimized for closed-cycle operation when
retrofitting existing units (also referred to as the energy penalty).
While both of these factors contribute to increased air emissions, the
larger contributor to projected increased air emissions is by far the
energy penalty.
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\76\ EPA recognizes that retrofitting closed-cycle cooling could
be combined with other energy efficiency or pollution control
technologies with the net effect of reducing air emissions; however,
facilities could (and may be required to under other rules) install
such technologies anyway, without converting to closed-cycle
cooling.
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The impact of the increased emissions varies according to the local
circumstances. The increased emissions could consist of stack emissions
from increased fuel usage, cooling tower emissions, and plumes of water
vapor. EPA's analysis suggested that the most significant impacts would
be increased PM2.5 emissions, which are associated directly
with an increase in human health effects. EPA notes that cooling plume
abatement and drift elimination technologies exist to address cooling
tower emissions (and EPA included costs for such technologies in its
analysis of Proposal Options 2 and 3). Further, EPA expects most
effects of the particulates from cooling tower emissions would be
limited to the immediate vicinity, confined wholly to the facility
property. (See DCN 10-6954.) Therefore, EPA's primary concern is
increased air emissions associated with additional fuel usage due to
the energy penalty when retrofitting to cooling towers. EPA's review of
emissions data from E-GRID (year 2005) suggests that impacts from these
pollutant discharges could be significant. These include the human
health and welfare and global climate change effects--all associated
with a
[[Page 48342]]
variety of pollutants that are emitted from fossil fuel combustion. EPA
is not able to quantify the frequency with which facilities could
experience these local impacts, and therefore has concluded that the
proper forum to address such local impacts fully is in a site-specific
setting.
3. Remaining Useful Plant Life Could Be a Factor on a Facility Basis
A number of facilities are nearing the end of their useful life.
Considering the long lead time to plan, design, and construct closed-
cycle cooling systems, EPA determined that the Director should have the
latitude to consider the remaining useful plant life in establishing
entrainment mortality requirements for a facility. The remaining useful
plant life, along with other site-specific information, will affect the
entrainment reduction of closed-cycle cooling at a facility. For
example, retrofitting to a closed-cycle system at a facility that is
scheduled to close in three years will result in little entrainment
reduction as compared to retrofitting to closed-cycle at a facility
that will continue to operate for a significantly longer period.
The Decision To Establish a National BTA Standard Requiring Site-
Specific Determination of BTA Entrainment Controls
Once EPA determined that a ``one-size-fits-all'' approach for
entrainment for existing units is not generally feasible, it is
appropriate to assess the required controls on a site-specific basis.
Therefore, for existing units, EPA decided to adopt as the BTA
entrainment standard an overarching regulatory framework under which
the Director will establish BTA entrainment requirements on a site-
specific basis following prescribed procedures and applying specified
factors for decision-making prescribed in the regulation and as
described below.
EPA concluded that site-specific proceedings are the appropriate
forum for weighing all relevant considerations in establishing BTA
entrainment requirements. Closed-cycle cooling is indisputably the most
effective technology at reducing entrainment. Closed-cycle reduces
flows by 95 percent and entrainment is similarly highly reduced. But
given that EPA estimates that 25 percent of existing facilities may
face some geographical constraints on retrofitting closed-cycle cooling
and concerns about air emissions and the remaining useful life of a
facility, EPA rejected the option of requiring uniform entrainment
controls based on closed-cycle cooling. Instead, EPA elected to adopt
as the entrainment standard a more flexible process in which, following
consideration of a host of factors, the Director will prescribe 316(b)
entrainment conditions appropriate at a particular site. For additional
discussion on how a site-specific consideration of entrainment control
requirements will be implemented, see Section VIII below.
EPA has several reasons for adopting the framework approach as the
BTA standard for entrainment. As explained, the record shows that
though closed-cycle cooling is effective, it is neither widely
available nor feasible, and has significant unacceptable non-water
quality impacts. While EPA cannot identify with precision the extent of
these limitations on installing closed-cycle cooling systems
nationwide, the record indicates that the circumstances are neither
isolated nor insignificant. In light of this, EPA decided not to
establish closed-cycle cooling as a presumptive BTA entrainment
standard, pending a site-specific demonstration of the limitations.
Instead, entrainment control requirements will be determined in a site-
specific setting where the opportunity for local input in decision-
making process will be maximized.
With regard to new units at existing facilities, based on the
performance of properly operated cooling tower operation and the
availability, feasibility and affordability of closed-cycle cooling at
new units, EPA selected closed-cycle recirculating systems based on wet
cooling towers as BTA. For a discussion of how the three factors
(availability, feasibility and affordability) relate to new units, see
Section VI.D.3. Consistent with the Phase I rule for new facilities,
EPA has also included a compliance alternative allowing a facility to
show performance comparable to that of a closed-cycle recirculating
system. The new unit provisions in today's final rule are essentially
the same as the requirements for new facilities under the Phase I rule.
F. Other Options Considered for Today's Final Regulation
EPA considered several other options for the BTA standards in
developing today's rule, but ultimately rejected them. This section
includes a discussion of these options, as well as some technologies
that EPA considered, but did not include as compliance alternatives to
the impingement mortality standards.
1. Proposal Option 4--Flexible Impingement Mortality Controls Similar
to Final Rule at Existing Facilities With DIF of 50 mgd or More; BPJ
Permits for Impingement Mortality and Entrainment at Existing
Facilities With Design Intake Flow Between 2 mgd and 50 mgd; Site-
Specific Entrainment Standard for Existing Facilities With DIF of 50
mgd or More; and Uniform Impingement Mortality and Entrainment Controls
for All New Units at Existing Facilities Similar to Final Rule
At proposal, EPA's preferred option was Option 1, which was the
option closest to today's final rule, and the starting point for the
description of the changes to the rule in Section V above. At proposal,
EPA also considered a variant of Option 1, called Option 4, which
changed the impingement mortality requirements for facilities under 50
mgd from the performance standard in Option 1 to BTA as determined by
best professional judgment. In the case of an existing facility below
50 mgd that added a new unit, the flow associated with the new unit
would have been subject to the uniform entrainment requirements based
on closed-cycle cooling. Finally, all existing facilities withdrawing
more than 2 mgd of DIF would have been subject to entrainment
requirements established on a site-specific basis, with the exception
noted above for new units. The option analyzed here, called Proposal
Option 4, is likewise similar to the final rule, but for the
impingement standard based on BPJ for facilities between 2 and 50 mgd.
EPA ultimately rejected Proposal Option 4 because EPA found that
the technologies on which the impingement mortality performance
standard of today's final rule is based are available, feasible,
demonstrated, and affordable for all regulated facilities on a national
basis. Moreover, EPA's analysis showed that the difference in the total
costs for the two options was nominal. Additionally, EPA notes that
many facilities with a DIF under 50 mgd already use closed-cycle
cooling and would have minimal burden under the final rule. These
facilities would have no difficulty complying with the requirements EPA
is establishing in today's final rule. Proposal Option 4, by not
distinguishing between those facilities under 50 mgd that have already
minimized adverse environmental impacts from those that have not, masks
the actions that would have to be taken by the latter group to comply
with today's final rule. In addition, the flexibilities introduced in
the June 11, 2012 NODA and included
[[Page 48343]]
in today's final rule applied to all facilities, rather than taking the
Option 4 approach at proposal of providing for more Director discretion
for only the smaller withdrawing facilities. EPA also concluded that
the data collection activities required under the final rule will be
more protective of threatened and endangered species because they
provide information on a larger number of facilities than Proposal
Option 4 for consideration by the Director in permitting decisions.
Lastly, EPA acknowledges that Proposal Option 4 is more burdensome to
permitting authorities than is the final rule, as it requires more
case-by-case decision making.
2. Proposal Option 2--Flexible Impingement Mortality Controls Similar
to Final Rule at All Existing Facilities That Withdraw Over 2 mgd DIF;
Site-Specific Entrainment Standard for Existing Facilities With DIF at
or Below 125 mgd; Require Flow Reduction Commensurate With Closed-Cycle
Cooling by Facilities Greater Than 125 mgd DIF; and Uniform Impingement
Mortality and Entrainment Controls for All New Units at Existing
Facilities
As previously explained, EPA assessed a number of different
technologies that reduce impingement mortality and entrainment as the
possible basis for section 316(b) requirements. EPA concluded that
closed-cycle recirculating systems (based on wet cooling towers) are
the most effective technology for reducing impingement mortality and
entrainment. Notwithstanding that conclusion, EPA has decided not to
establish a performance standard for impingement and entrainment based
on closed-cycle recirculating systems for existing facilities.
Furthermore, EPA found that there are no other effective technologies
for entrainment that are available nationally. As described previously,
each of the three factors for rejecting closed-cycle cooling as BTA for
entrainment would also apply in the case of Proposal Option 2, despite
the smaller number of facilities that would be subject to a requirement
to retrofit. The technology basis for entrainment mortality controls
for facilities greater than 125 mgd DIF under this option would have
been wet cooling systems. The constraints discussed above that are
associated with retrofitting a large portion of the universe of
affected facilities, led EPA to conclude that requiring closed-cycle
cooling on a uniform basis scale was not appropriate for a national
regulation.
EPA notes that it proposed multiple options that included closed-
cycle, and solicited comment on all aspects of closed-cycle cooling.
After fully considering all comments and data, EPA still finds closed-
cycle cooling is not the ``best technology available for minimizing
adverse environmental impact'' required by section 316(b). Because of a
combination of concerns over feasibility/availability, air emissions,
and remaining useful life of the facility, EPA has rejected closed-
cycle recirculating systems as the basis for national impingement and/
or entrainment controls. Nor is EPA able to identify a subcategory for
which these concerns no longer apply. Moreover, the complex interaction
of all of these factors at individual sites does not lend itself to
other regulatory options that would require closed-cycle recirculating
systems with an ``off ramp'' if any of the factors were shown to result
in unacceptable impacts because this would create a presumption for
closed-cycle cooling rather than an equal balancing of all relevant
factors. EPA decided not to establish any presumptive BTA entrainment
outcome. EPA finds the entrainment standards framework in today's final
rule will provide a consistent, more efficient, and more effective
approach than standards with an ``off ramp.''
3. Proposal Option 3--Flexible Impingement Mortality Controls at All
Existing Facilities That Withdraw Over 2 mgd DIF; Require Flow
Reduction Commensurate With Closed-Cycle Cooling at All Existing
Facilities Over 2 mgd DIF
Proposal Option 3 was, in many ways, the same as requiring closed-
cycle cooling at all existing facilities. As described above, each of
the three factors for rejecting closed-cycle cooling as BTA for
entrainment would apply with equal force for Proposal Option 3. As a
result, EPA has concluded Proposal Option 3, similarly, is not
appropriate as BTA for entrainment.
4. Proposal Option 4 Variant
EPA also considered a variant of Proposal Option 4. As compared to
Proposal Option 4, this variant did not include flexible alternatives
for complying with the BTA impingement mortality standards (including
pre-approved and streamlined alternatives), but did adopt the 50 mgd
threshold to determine those facilities for which the Director has more
discretion in determining BTA via BPJ. EPA analyzed this option to
directly compare the effects of introducing flexible IM compliance
alternatives at all facilities (as the final rule does) to the effects
of introducing greater Director discretion for a subset of facilities,
via BPJ permitting (as the Proposal Option 4 variant does). The
preferred option at proposal, Option 1, was estimated to be more costly
than Option 4 (Option 1 was estimated to cost $384 annually as compared
with $327 million annually for Option 4). Under the analysis supporting
the final rule the EPA is adopting today, however, today's final rule
is estimated to cost $275 million annually in comparison with an
estimated cost of $284 million annually for the Proposal Option 4
variant. Thus, EPA has concluded that providing flexible alternatives
for compliance with the BTA IM standard at all facilities is both more
effective at reducing costs to society and more readily justified as
best technology available as compared to the approach of introducing
greater Director discretion for only a subset of facilities (below 50
mgd). Hence, EPA rejected the Proposal Option 4 variant, and the
approach of introducing greater Director discretion for only a subset
of facilities (below 50 mgd).
5. Proposal Option 2 Variant
EPA also considered a variation of Proposal Option 2 that would
have used 125 mgd AIF rather than 125 mgd DIF as the threshold.
However, as described above, EPA rejected Proposal Option 2 and, for
the same reasons, rejected this variant of Option 2.
6. Site-Specific Approach To Addressing Impingement
Many commenters (primarily from manufacturing facilities) commented
that EPA should adopt a site-specific approach to addressing
impingement mortality, similar to that employed for entrainment. As a
result, EPA also considered an approach that would have established
both impingement mortality and entrainment requirements fully on a
site-specific basis taking into account for the particular facility,
among other factors, those previously described as pertinent to EPA's
316(b) BTA determination. EPA rejected a fully site-specific approach
for impingement controls principally because low-cost technologies for
impingement mortality are available, feasible, demonstrated, and
affordable for facilities nationally. Because technologies are
available, a fully site-specific approach would place an unnecessary
additional burden on state permitting resources. Moreover, the final
impingement mortality standard includes several alternatives that allow
site-specific demonstration that a particular technology performs at a
level representing the best technology available for the site. EPA is
instead promulgating a modified version of the
[[Page 48344]]
proposed rule, adding several elements of flexibility (i.e., compliance
alternatives), and thus directly addressing many of the concerns raised
by these commenters.
7. Pre-Approved Technologies
Many commenters requested that EPA pre-approve technologies that,
once installed, would obviate the need for further regulatory
conditions such as periodic monitoring. This is similar to the approach
taken for cylindrical wedgewire screens in the remanded 2004 Phase II
rule (see 69 FR 41693). EPA has adopted, in significant measure,
commenters' suggestion in the BTA impingement mortality standard in
today's rule by including several pre-approved and several streamlined
compliance alternatives in the form of technologies that may be
approved following a demonstration of required performance, so long as
the facility shows that its alternative technology is operating in a
manner that minimizes adverse environmental impacts. As an option for
achieving the impingement mortality standards, a facility may install
and operate specified impingement controls whose performance is
comparable to or better than the technology EPA concluded was the
``best technology available'' for impingement mortality reductions:
Closed-cycle recirculating systems, defined at Sec. 125.92(c)
Existing offshore velocity caps, defined at Sec. 125.92(v)
Technologies that result in a design intake velocity less than
or equal to 0.5 fps, including most modern cylindrical wedgewire
screens
Although this rule leaves the BTA entrainment determination to the
Director, with the possible BTA decisions ranging from no additional
controls to closed-cycle recirculating systems plus additional controls
as warranted, EPA expects that the Director, in the site-specific
permitting proceeding, will determine that facilities with properly
operated closed-cycle recirculating systems do not require additional
entrainment reduction control measures. Refer to Section E.1 for the
EPA's rationale for selecting these controls.
G. Final Rule BTA Performance Standards
The rule establishes the following BTA standards for Impingement
Mortality and Entrainment: Impingement Mortality Standards at All
Existing Units at Existing Facilities that withdraw greater than 2 mgd
DIF; an Entrainment Standard that requires site-specific entrainment
controls determined by the Director for Existing Units at Existing
Facilities that withdraw over 2 mgd DIF; BTA standards for impingement
mortality and entrainment for new units at existing facilities. The
previous section described the other options that EPA considered but
ultimately rejected, and the basis for those decisions.
1. Impingement Mortality Controls for Existing Units at Existing
Facilities for the Final Rule
Today's final rule provides a facility a number of alternatives for
complying with the BTA impingement mortality standard. As discussed
more below, EPA's BTA impingement mortality standard is based on EPA's
conclusion that, on a national basis, modified traveling screens with
fish-friendly return systems are the best performing technology
available for impingement mortality reduction. But EPA is not requiring
compliance with the BTA impingement mortality standards only through
monitoring data that demonstrates achievement of the numeric reduction
in mortality levels that EPA has determined well-operated modified
traveling screen will achieve. Rather, the final rule allows facilities
to comply by employing any of seven alternatives, including monitored
compliance with a numeric impingement mortality performance standard.
Based on its review of available data and information submitted by
commenters, EPA identified a number of other technologies and
operational measures that could achieve equivalent, or better,
performance to the impingement mortality reductions achieved with
modified traveling screens that may be available for some sites. Thus,
the final rule provides seven alternatives for complying with the BTA
impingement mortality standards. These include three compliance paths
based on pre-approved technologies, and three compliance paths that
offer a streamlined approach to compliance. EPA expects the majority of
facilities will use one of these six options to comply with the BTA
impingement mortality standards (see Exhibit VIII-1 for more
information).
The following pre-approved technologies will comply with today's
rule and are associated with minimal monitoring and reporting of
operational and/or design parameters. These technologies are (the
numbering reflects the numbering in Sec. 125.94(c)): Operating (1) a
closed-cycle recirculating system; (2) a cooling water intake structure
that EPA or the State NPDES permitting authority determines has a
design maximum through-screen intake velocity of 0.5 feet per second;
or (4) an existing offshore velocity cap. The general intent behind a
compliance path based on a pre-approved technology is to provide a
level of certainty to the regulated entity that they would be deemed
compliant with the relevant rule requirements by designing, installing,
and operating the technology as specified in the regulation. The three
pre-approved compliance alternatives are each based on a particular
technology approach. The permit for each compliance alternative will
necessarily include criteria, design standards, and operational
conditions specific to the pre-approved technology. The compliance
paths based on pre-approved technologies in today's final rule include
simplified permit application requirements (such as reduced or minimal
study), documentation, or reduced monitoring, and will therefore result
in greatly simplified implementation. In today's final rule, there are
no biological compliance monitoring requirements for any of the three
compliance paths based on pre-approved technologies.
Under the streamlined alternatives, a facility must demonstrate to
the Director that traveling screens or some combination of technology
controls or operational measures represent BTA performance under the
conditions at the site. The three streamlined compliance alternatives
are (the numbering reflects the numbering in Sec. 125.94(c)) operating
(3) a cooling water intake structure that EPA or the State NPDES
permitting authority determines has an actual maximum through-screen
intake velocity of 0.5 feet per second; (5) modified traveling screens
whose demonstrated performance represents the best technology available
for impingement reduction at the site; or (6) a system or combination
of technologies or operational measures whose demonstrated performance
is the best technology available for impingement reduction at the site.
In order to demonstrate BTA performance, a facility will need to
conduct a two-year site-specific study at the same time it conducts its
source water characterization and Entrainment Characterization Study.
This study must demonstrate that its modified traveling screens, or
combination of technology controls and operational measures, have been
adjusted and optimized so as to minimize impingement mortality. If the
Director concludes that the facility has demonstrated optimized
performance for its controls, the facility will have no
[[Page 48345]]
subsequent biological monitoring and reporting requirements as compared
to a facility that complies using the impingement mortality performance
standard. If the screens or other measures are not already installed,
the Director may approve postponing the two-year study to be conducted
after the entrainment determination has been made. These three
streamlined compliance alternatives are based on a technology or suite
of technologies and practices with more variable performance, and as
such necessitate some degree of study, in order to optimize technology
performance for the site-specific conditions encountered by a facility.
A streamlined compliance alternative may require some level of
monitoring, but once the optimal performance of the technology has been
identified, conditions included in the permit specifying optimal
operation ensure that the streamlined alternative is similar to or
better than the impingement mortality performance standard. For
example, the streamlined compliance alternatives also do not require
biological compliance monitoring.
The seventh alternative (at Sec. 125.94(c)(7)) for complying with
the BTA impingement mortality standards requires the owner or operator
to demonstrate compliance with the numeric impingement mortality
performance standard through biological monitoring. Under this
alternative, the owner or operator has the flexibility to choose any
technology, including a new or innovative technology, provided the
compliance monitoring demonstrates the performance standard is
achieved.
Each of these seven alternatives is further described below. In
addition, further discussion of how each of these alternatives will be
implemented may be found in Section VIII.
a. Closed-Cycle Recirculating Systems
As described above, in Chapter 6 of the TDD, and in prior
rulemakings, EPA has long recognized the benefits of flow reduction
from closed-cycle recirculating systems for reducing impingement (as
well as entrainment). A facility employing a closed-cycle recirculating
system will typically reduce impingement by more than 95 percent. As a
result, a facility may choose to comply with the BTA impingement
mortality standards in today's final rule by demonstrating that it uses
a properly operated and maintained closed-cycle recirculating system.
EPA estimates that approximately 18 percent of intake structures
(i.e., those that already have an existing closed-cycle recirculating
system, plus facilities located in California and New York, whose State
regulations are at least as stringent as the final rule) will choose
this alternative.
EPA does not have the data to determine precisely which
impoundments are serving as part of a closed-cycle recirculating system
as defined at 40 CFR 125.92(c)(2). However, EPA is aware that some
facilities have created their impoundments in a water of the U.S. as
part of their cooling system. EPA does not intend to eliminate the use
of such lawfully created impoundments for their intended purpose, as
doing so could result in a large number of stranded assets. If the
cooling system with the impoundment minimizes the withdrawal of make-up
water for cooling purposes, the Director may determine the cooling
system meets the definition of a closed-cycle recirculating system.
b. Reduced Intake Velocity
EPA has long recognized the relationship between impingement and
intake velocity. EPA conducted an analysis of fish swim speeds in the
Phase I rule (see 66 FR 65274, December 18, 2001) and concluded that a
design through-screen velocity of 0.5 fps is protective of 96 percent
of motile organisms. However, EPA did not select intake velocity as the
technology basis for the BTA impingement mortality standards. Although
the performance of 0.5 fps intake velocity achieves greater reduction
in impingement mortality than the technology on which the BTA
impingement mortality standards are based, reducing a facility's intake
velocity is not widely available or feasible for all existing
facilities (see Chapter 6 of the TDD).
EPA is including reductions in intake velocity as an alternative
for complying with the BTA impingement mortality standards through
reduced intake velocity. A facility choosing this alternative must
demonstrate that (1) the through-screen design velocity could not
exceed 0.5 fps or (2) the actual intake velocity does not exceed 0.5
fps.
EPA estimates that approximately 34 percent of intake structures
will choose this alternative. This estimate includes facilities that
have an existing intake velocity of 0.5 fps or less, plus those
facilities that are projected to install a technology that would reduce
their intake velocity (larger intake, wedgewire screens, or variable
speed pumps).
i. Design Intake Flow Basis
Consistent with EPA's determination in its earlier 316(b)
regulatory efforts, the final rule allows a facility to comply with the
BTA impingement mortality standards by demonstrating that its intake
has a maximum through-screen design velocity of 0.5 fps. EPA concluded
that facility's operating at this through-screen design velocity will
protect the vast majority of impingeable aquatic organisms. Facilities
choosing to comply with the BTA impingement mortality standards may not
average velocity across multiple intakes at a facility.
ii. Actual Intake Flow Basis
EPA is also adopting a provision to allow facilities to demonstrate
that the through-screen intake velocity at an intake structure does not
exceed 0.5 fps on the basis of the intake's actual flow. (Again, note
that facilities choosing this compliance alternative may not average
intake velocity across multiple intakes.) In contrast to design flow
above, a facility with an intake having a design through-screen intake
velocity greater than 0.5 fps may be operated at a reduced capacity and
therefore may withdraw cooling water at a velocity less than 0.5 fps.
As long as the actual intake flow is such that the velocity remains at
or below 0.5 fps, the reductions in impingement (and subsequently,
impingement mortality) remain the same as a facility with a maximum
design through-screen intake velocity of 0.5 fps. As described below, a
facility will be required to monitor its intake flow and report this
data to the Director to verify that intake flows do not exceed 0.5 fps.
This approach also permits the Director to allow brief periods where
the intake velocity will exceed 0.5 fps under extreme conditions.
c. Existing Offshore Velocity Caps
A number of commenters stated that EPA should consider existing
offshore intakes fitted with velocity caps to be pre-approved and
complying with the BTA impingement mortality standards. Locating
submerged intakes in the deeper regions of larger waterbodies
(particularly outside the littoral zone \77\) has the potential to
reduce both impingement and entrainment (I&E), due to the lower
densities of aquatic organisms as compared to a shoreline-based intake.
EPA has identified 11 facilities with offshore velocity caps, and
reviewed a number of studies documenting the performance of these
[[Page 48346]]
facilities. These studies show that the impingement reduction
performance of intakes submerged far offshore with velocity caps is
dependent on site-specific conditions. The data show that solely
locating an intake far offshore (i.e., without also employing a
velocity cap) achieves a 60 to 73 percent reduction in impingement, and
therefore does not achieve impingement mortality reduction comparable
to that of well-operated modified traveling screens. Similarly, the
data also show that velocity caps alone achieve a 50 to 97 percent
reduction in impingement, and therefore could result in compliance
performance comparable to or better than modified traveling screens in
some, but not in all cases. However, the combination of an existing
intake located far offshore (i.e., approximately 850 feet, as
identified in the data for Nine Mile Unit 1 and Oswego Unit 5) in
combination with use of a velocity cap will result in performance that
exceeds the 12-month average impingement mortality performance standard
(alternative seven described above).78 79 Because there is
some amount of uncertainty in measuring distances from a shoreline,
including but not limited to due to variations in water levels, storm
swells, or tidal excursions, EPA has set the minimum distance offshore
at 800 feet. As a result, the final rule at Sec. 122.95(c)(4) allows a
facility to comply with the BTA impingement mortality standards with an
existing offshore intake with an existing velocity cap located at least
800 feet offshore, based on the performance data from the 11 identified
facilities.
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\77\ The littoral zone extends from the shoreline to roughly the
edge of the continental shelf.
\78\ An existing facility may also choose to install a new
offshore intake with a velocity cap, but such a facility would not
automatically qualify as meeting the impingement requirements for
the final rule. Such a facility would need to demonstrate equivalent
performance to the impingement mortality performance standard.
\79\ A velocity cap must also include bar racks or other devices
to exclude large marine organisms (e.g., seals, turtles) from
entering the intake structure.
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As noted above, the record shows all existing facilities with a
velocity cap located at least 800 feet offshore will meet or exceed the
12-month average mortality performance standard of Sec. 125.94(c)(7).
EPA does not have data showing velocity caps located at lesser
distances offshore will consistently achieve the impingement mortality
performance standards, but is aware that some facilities may be able to
achieve the impingement mortality standards through a combination of
technologies that includes an offshore location. For example, the
Office of Naval Research states that the littoral zone in ocean
environments generally extends from the shore to 600 ft out in the
water (ONR 2013). SEAMAP data in EPA's record shows installing the
intake to depths where there is a lower concentration of living
organisms (i.e., at least 65 feet) is also expected to decrease
environmental impacts associated with intake operations. Therefore, the
final rule allows facilities with intake structures at significant
distances offshore to demonstrate the performance of their technology
under Sec. 122.95(c)(6), as further discussed below.
In addition facilities may opt to construct an offshore velocity
cap at new locations. In those circumstances, the facility will need to
demonstrate that theperformance of its velocity caps is the best
technology available for impingement reduction under the alternative
found at Sec. 122.95(c)(6). For more information, see DCN 12-6601.
EPA estimates that approximately 1 percent of intake structures
(i.e., those with an existing velocity cap meeting the definition at
Sec. 125.92(v) will choose this alternative.
d. Install Modified Traveling Screens
In the June 11, 2012 NODA, EPA discussed a streamlined compliance
option that would provide facilities with a less burdensome alternative
than the proposed rule. In the final rule, EPA has included an option
at Sec. 125.95(c)(5) for facilities that install traveling screens--
the technology that forms the basis for the numeric IM performance
standards. Under this option, the facility must demonstrate to the
Director that it will install and operate modified traveling screens as
defined at Sec. 125.92(s) that are or will be optimized to minimize IM
mortality at the site. The facility will also be required to submit an
impingement technology performance optimization study (Sec.
122.21(r)(6)) which will include a 2-year optimization study for the
intake technology. The facility will conduct 2 years of monthly
impingement data collection, during which the facility will seek to
optimize the technology performance to minimize impingement mortality.
This study is intended to determine the optimal configuration and
operating conditions of modified traveling screens and the fish
handling and return systems for that intake to be consistently
protective of aquatic organisms. During the course of the study, EPA
expects that a facility will evaluate the interim results and make
changes to the technology or operating conditions as needed to identify
the most appropriate set of operational characteristics to ensure long-
term success. For example, a facility could adjust the spray wash
pressure, adjust the rotating speed of the screens, rotate the screens
more frequently, re-angle the fish sluicing sprays, ensure adequate
water in the return flume, design the fish return to avoid avian and
animal predation on the aquatic organisms, and locate the fish return
in such a way to avoid predation. Once a facility has optimized its
technology performance, the study will identify operational measures
that will serve as observable and enforceable permit conditions. As
evidenced by the data used in determining the performance standard, by
requiring facilities to study the conditions for optimized performance,
many facilities will achieve impingement mortality reductions much
greater than the 12-month average impingement mortality performance
standard without significant additional investment. Biological data
collection beyond this two-year study will not be required. The
facility will simply be required to ensure that it is operating its
technology under the identified conditions for optimized performance.
If the Director concludes that the screens will achieve optimized
performance, the Director will also incorporate operating conditions to
ensure optimized performance as terms of the facility's NPDES permit.
As discussed in the NODA and Chapter 4 of TDD, EPA's data indicate
that most facilities employ traveling screens.\80\ EPA anticipates
that, as a result, many facilities will view the streamlined screen-
based compliance route as a logical choice for complying with the final
rule. The streamlined option provides an opportunity for a large number
of the affected facilities (i.e., those that do not meet the criteria
for the other compliance technologies) to demonstrate that their
intakes are effectively reducing impingement mortality while
significantly reducing the burden on both facilities and regulatory
agencies. EPA estimates that approximately 30 percent of intake
structures will choose this alternative.\81\
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\80\ EPA's technical survey found that 93 percent of electric
generators and 73 percent of manufacturers already use screens, the
majority of which are traveling screens.
\81\ While EPA's data shows 73 to 93 percent of facilities
already use traveling screens, EPA notes that many facilities use
more than one technology. For example, some of these facilities also
have a low intake velocity, an offshore velocity cap, or cooling
towers. EPA expects facilities will choose the IM compliance
alternative corresponding to these pre-approved technologies before
they will choose to comply via optimized performance of their
traveling screens.
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EPA is aware that some facilities have no technologies installed
and will choose to install modified traveling screens, and further that
some facilities
[[Page 48347]]
with traveling screens will choose to either retrofit to modified
traveling screens with fish handling and returns. Obviously, the
impingement technology performance optimization study cannot be
undertaken until the technology is first installed. In this case the
NPDES permit would be issued before the completion of the optimization
study. EPA expects a permit will be issued that includes a schedule for
both the technology installation and the required optimization study.
As discussed earlier, the Director can establish interim measures as
appropriate (40 CFR 125.94(b)).
e. System of Technologies as the BTA for Impingement Mortality
EPA recognizes that cooling water intake structures have a variety
of configurations and facilities may choose to comply with the final
rule by using more than one of the compliance approaches outlined
above. In the June 11, 2012, NODA, EPA described an approach where
facilities would be able to demonstrate ``credit'' toward meeting the
impingement mortality requirements by reducing the total number of
organisms impinged. EPA also intended for facilities to have the
flexibility to employ any system of technologies or combination of
operational measures to address impingement mortality so long as the
performance of the selected impingement reduction measures represented
the best technology available for the site. The final rule includes an
alternative reflecting these objectives.
In the broadest sense, facilities have a number of options for
reducing impingement mortality. Some may choose to comply using an
approach where a single technology achieves the level of compliance
necessary. Others may choose an approach of employing multiple
technologies or operational measures, including reducing the number of
organisms that are impinged or susceptible to being impinged. The
following are examples of approaches for which a facility might be able
to take credit for impingement reduction under this alternative:
Partial closed-cycle cooling
Variable speed pumps
Seasonal outages (including standard maintenance outages that
are specifically scheduled to avoid a biologically sensitive period)
Certain impingement technologies that reduce the number of
organisms exposed to the intake structure (e.g., diversions, louvers,
barrier nets)
Intake location
Behavioral technologies (e.g., light or sound barriers) \82\
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\82\ For example, anadromous clupieds such as alewife, blueback
herring, and American shad have demonstrated avoidance behaviors
when exposed to high frequency sound. Deployments of this technology
at Entergy's FitzPatrick Nuclear Station on Lake Ontario have
resulted in a reduction of over 90 percent in impingement of
alewife. In this case, EPA expects the Director would determine that
impingement requirements regarding alewife have been addressed by
the acoustical deterrent. The Director could disallow such a
technology if it were deemed to have a negative effect on threatened
or endangered species whose habitat includes the facility's intake
location.
In each case, the technology employed reduces the number of
organisms that potentially are impinged, resulting in a reduction in
the number of organisms actually impinged (i.e., a reduction in the
rate of impingement). By virtue of reducing the actual impingement,
mortality caused by impingement is no longer a consideration--an
organism that is never impinged cannot be killed by the intake
structure. Some technologies work to reduce the intake flow, thereby
reducing the potential organisms exposed to the intake. Others work to
divert organisms away from the screens, either through a physical
exclusion or by being placed in a less biologically productive area.
EPA concluded that it is appropriate to recognize these reductions in
impingement as a step in achieving a BTA impingement mortality
reduction performance at a particular site. As a result, EPA expects
the reduction in impingement will be treated as an equivalent reduction
in impingement mortality, and will therefore be considered by EPA or
the State NPDES permitting authority in evaluating whether the chosen
technologies and operational measures represent BTA performance under
the site's conditions. For example, an intake that operates
infrequently due to the infrequent operation of the electric generating
unit(s) it serves (such as a peaking unit) may use a relatively small
amount of water on an annual basis when compared to the design capacity
of the intake structure. This facility may choose to comply with the
impingement mortality standard at Sec. 125.94(c)(6) by demonstrating
to the Director that the facility operates at an annual intake flow
that is less than or equal to 24 percent of its design intake flow on
an annual basis. This level of flow reduction could achieve a level of
performance equivalent to or better than the impingement mortality
performance standard in Sec. 125.94(c)(7), and therefore could be
considered to be compliant with the requirements of today's final rule.
This demonstration may include design data, several years of past
operating data, and dispatch modeling. These operating conditions would
then be incorporated into the NPDES permit.
A facility complying under this part, must submit a impingement
technology performance optimization study, which must include the
calculated percent impingement mortality reflecting optimized operation
of the system of technologies, operational measures, and best
management practices and all supporting calculations. Total system
performance is the combination of impingement mortality performance
reflected in all of the following which apply:
Rate of impingement--The estimated reductions in rate of
impingement must be based on a comparison of the system to a once-
through cooling system with a traveling screen whose point of
withdrawal from the surface water source is located at the shoreline of
the source waterbody. For impoundments that include waters of the
United States, the facility's rate of impingement must be measured at a
location within the cooling water intake system that the Director deems
appropriate.
Impingement mortality--If the demonstration relies in part
on a credit for reductions in impingement mortality already obtained at
the facility, two years of biological data collection must be provided,
demonstrating the level of impingement mortality the system is capable
of achieving.
Flow reduction--If the demonstration relies in part on
flow reduction to reduce impingement, the data must include two years
of intake flows, measured daily, as part of the demonstration. This
must include documentation of how the flow reduction results in reduced
impingement.
The permitting authorities would consider this information shown in
the two-year impingement technology performance optimization study that
must be submitted under this alternative. For example, at facilities
choosing to comply by demonstrating that they are operating below 24
percent of their intake capacity, or that they are peaking units, the
Director should use this study to establish operating conditions that
ensure that the intake continues to operate below 24 percent of its
intake capacity or continues to serve only peaking units and that these
units are not later used as intermediate or baseload units. The
operating conditions and parameters identified in the study will then
be incorporated in the facility's permit conditions. EPA estimates that
approximately 17 percent
[[Page 48348]]
of intake structures will choose this alternative.
f. Comply With the Numeric Impingement Mortality Performance Standard
Facilities complying with the BTA impingement mortality standard by
achieving the numeric performance standard at Sec. 125.94(c)(7) will
perform monthly compliance monitoring to verify that the 12 month
percent impingement mortality resulting from operation of its intake is
below the standard established in today's final rule. (For more details
on complying with the impingement requirements, see Section VIII.) EPA
expects that, save for future technologies or innovations, few
facilities will avail themselves of this option.
2. Entrainment Controls for Existing Units at Existing Facilities
The BTA entrainment standard for the final rule establishes a
framework under which EPA or the State NPDES permitting authority must
establish site-specific BTA entrainment requirements for each facility
in the scope of today's rule. EPA considered promulgating no further
controls to address entrainment mortality, and to rely instead only on
the BTA impingement mortality controls, which would achieve up to a 34
percent reduction in total AEI. EPA did not select this option as the
basis for national BTA because, in EPA's view, some facilities either
are having a significant impact as a result of entrainment or might be
able to do more to control entrainment at costs that are low relative
to benefits. In addition, EPA's data on entrainment at facilities are
not sufficient to allow the Agency to categorize facilities requiring
no additional controls for entrainment. Thus, the final rule by
requiring prescribed information in the permit application will provide
the Director with adequate information for decision making. Requiring a
structured site-specific analysis of candidate BTA technologies for
entrainment control will allow the Director to determine where it is
appropriate to require such controls. One outcome of the site-specific
analysis could be that the Director would determine that no other
technologies beyond impingement controls are required for BTA
entrainment reductions, either because they are not feasible or because
the social costs of additional control measures are not justified by
the social benefits.
In the case of site-specific entrainment controls for facilities
withdrawing greater than 125 mgd AIF, the final rule requires
facilities to also develop and submit an Entrainment Characterization
Study and related supporting information, as described in Sec.
122.21(r)(9)-(13) of today's rule, for use by the Director in
establishing site-specific BTA. For facilities above 125 mgd AIF that
also meet the definition of closed-cycle recirculating systems at Sec.
125.92(c), the Director may reduce or waive some or all of this
information.
EPA considered simply requiring this information of all facilities
above 125 mgd AIF without authorizing Directors to reduce or waive this
information. However, EPA also recognizes that, in some instances,
these same facilities have already minimized adverse environmental
impacts significantly. In such cases, there may be limited value to the
Director requiring a full benefit-cost analysis, or even obtaining the
Entrainment Characterization Study at Sec. 122.21(r)(9).
EPA also considered not requiring this information of any
facilities above 125 mgd AIF meeting the definition at Sec. 125.92(c).
First, EPA noted that even though these facilities meet the definition
of a closed-cycle recirculating system, they may still withdraw at
least 125 mgd, and in some instances withdraw considerably more than
125 mgd. This is not an insubstantial volume of water withdrawn for
cooling, and in the case of inland waters this withdrawal may comprise
a large proportion of that source waterbody. In addition to withdrawing
large volumes of water, EPA recognizes that some facilities,
particularly those meeting the definition at Sec. 125.92(c)(2),
potentially withdraw water at a rate similar to a once-through facility
not withdrawing from an impoundment, with the potential to cause
adverse environmental impacts similar to those of once-through cooling.
The Director may find the information in Sec. 122.21(r)(9)-(13) to be
useful in determining whether additional controls are warranted. In
these instances, the Director may decide to require the Entrainment
Characterization Study at Sec. 122.21(r)(9) first, in order to
determine if other studies in Sec. 122.21(r)(10) to (13) are also
warranted.
Facilities at or under the 125 mgd AIF threshold must still provide
certain information under the permit application requirements at Sec.
122.21(r). The Director may require additional information from these
facilities including some or all of the studies at Sec. 122.21(r)(9)-
(13) if there is reasonable concern regarding entrainment impacts at
the facility. Where an owner or operator of a facility intends to
comply with the BTA standards for entrainment using a closed-cycle
recirculating system as defined in Sec. 125.92(c), the Director may
reduce or waive some or all of this information.
Facilities with a closed-cycle recirculating system as defined at
Sec. 125.92(c)(2) would still submit the studies at Sec.
122.21(r)(9)-(13) if they withdraw greater than 125 mgd AIF, and if the
Director has not waived the requirements. These facilities have cooling
systems that include impoundments of waters of the U.S. where the
impoundment(s) was constructed prior to October 14, 2014 and lawfully
created for the purpose of serving as part of the cooling water system.
This purpose must be documented to the Director's satisfaction in the
project purpose statement of any required Clean Water Act section 404
permit obtained to construct the impoundment. In the case of an
impoundment whose construction pre-dated the CWA requirement to obtain
a section 404 permit, where alternative permitting documents were
required, the facility must document the project's purposes to the
satisfaction of the Director by some other license or permit obtained
to lawfully construct the impoundment for the purposes of a cooling
water system. EPA notes that for impoundments constructed in uplands or
not in waters of the United States, no documentation of a section 404
or other permit is required. EPA received comments that such
impoundments should be treated as closed-cycle cooling and has agreed
to make this change. The Director would still make the determination
that make-up water withdraws have been minimized. Further, EPA's data
shows that many facilities that utilize impoundments as part of their
cooling water systems may actually use a combination of cooling water
systems (for example, detailed survey responses showed eight facilities
with an impoundment in addition to other IM technologies). The
requirement that these facilities provide the Director with certain
information will help ensure that the Director has adequate information
upon which to base a decision for these impoundments as to whether
these facilities have adequate controls already or should be taking
additional measures to protect the relevant waterbody.
The Entrainment Characterization Study will include information
already collected to meet existing Sec. 122.21(r)(4) requirements. In
addition, under the permit application requirements being added today
at Sec. 122.21(r)(5) to (13), the facility will submit certain
additional site-specific information. This will include an engineering
study of the
[[Page 48349]]
technical feasibility and incremental costs of candidate entrainment
mortality control technologies. The facility will also study, evaluate,
and document the technical feasibility of technologies, at a minimum,
including closed-cycle cooling, fine mesh screens with a mesh size of 2
mm or smaller, and water reuse or alternate sources; engineering cost
estimates of all technologies considered; any outages, downtime, or
other effects on revenue along with a discussion of all reasonable
attempts to mitigate these cost factors; and a discussion of the
magnitude of water quality and other benefits, both monetized and
nonmonetized, of the candidate entrainment mortality reduction
technologies evaluated. Finally, the information must include a
discussion of the changes in non-water quality environmental impacts
attributed to technologies and/or operational measures considered. The
factors include, for example, increases and decreases in the following:
Energy consumption, and air pollutant emissions including particulates
and associated human health and global climate change impacts, water
consumption, noise, safety (e.g., visibility of cooling tower plumes,
icing), grid reliability, and facility reliability. For a thorough
discussion of these study requirements, see Section VIII. The final
rule also requires peer review of the Comprehensive Technical
Feasibility and Cost Evaluation Study, Benefits Valuation Study, and
Non-Water Quality and Other Impacts Assessment. Peer review of the
Entrainment Characterization Study is not required. Note that the peer
reviewed studies will rely on data gathered in the Entrainment
Characterization Study. Peer reviewers will be selected in consultation
with the Director, who can also consult with EPA and Federal, State,
and Tribal fish and wildlife management agencies with responsibility
for fish and wildlife potentially affected by the cooling water intake
structure(s).
Under the final rule, EPA expects that the Director will review the
candidate technologies for entrainment mortality control that, at a
minimum, includes closed-cycle recirculating systems, fine-mesh screens
with a mesh size of 2 mm or smaller, and water reuse or alternate
sources. In the decision about what additional entrainment controls (if
any) to require, the Director will consider all the facility-specific
factors in Sec. 125.98(f)(2) and described above. At a minimum, the
Director must provide a discussion explaining how issues concerning air
emissions or land availability, insofar as they relate to the
feasibility of adoption of an entrainment technology, and remaining
useful plant life, were addressed in the site-specific determination.
Under the final rule, the Director must issue a written explanation for
the basis of the BTA entrainment determination for each facility. The
Director's decision must include a written explanation that, at a
minimum, includes consideration of the following factors: (i) Numbers
and types of organisms entrained; (ii) impact of changes in particulate
emissions or other pollutants associated with entrainment technologies;
(iii) land availability inasmuch as it relates to the feasibility of
entrainment technology; (iv) remaining useful plant life; and (v)
social costs and benefits, which may include qualitative, quantified
and monetized categories. The Director may also base the proposed
determination on several other factors, including thermal effects and
water consumption.
In addition to the information required for development of
impingement controls discussed above, the regulation also requires, in
the case of facilities withdrawing greater than 125 mgd AIF, submission
of certain other information for use in the site-specific entrainment
determination of BTA. The final rule also adds the permit application
requirements at Sec. 122.21(r) (9)-(13) to require the facility to
prepare several studies, including an Entrainment Characterization
Study, that will fully characterize the extent of entrainment at the
facility. (For more details about the study, see above). In addition,
under the final rule, the facility will provide detailed information on
the other factors relevant to the Director's site-specific BTA
determination. These will include information concerning the
technologies available for control of such entrainment, the costs of
controls, the non-water quality environmental impacts of such controls,
the monetized and nonmonetized benefits of such controls, and the
presence of any threatened and endangered species. The final rule does
not limit the Director's discretion to consider non-water quality
impacts in determining whether further entrainment measures are
justified. EPA encourages, and the CWA requires, the public to have a
role in the permitting process. Interested members of the public may
submit written comments on a draft permit during the 30 day public
notice and comment period and request a public hearing on a draft
permit. For permits that are issued by EPA instead of a state,
additional opportunities for public involvement include comment, and in
some cases, a public hearing on a permittee's State Water Quality
Certification under section 401 of the CWA. (See 40 CFR 124.10, 124.11,
124.12(a) and 124.17(a).) Therefore, the final rule clearly affords the
public a meaningful opportunity for participation in the site-specific
decision making to help ensure the soundness of both the information
and subsequent determinations.
H. Economic and Benefit Analysis for the Final Rule
1. Economic Justification for the Final Rule
Pursuant to the principles in E.O. 12866 and E.O. 13563, EPA has
assessed costs and benefits for the final rule and has reasonably
determined that the benefits of the rule justify the costs. EPA has
estimated the social cost of this rule to be $275 million annually. For
more information on EPA's analysis of the rule's costs, see Section IX.
As described in more detail below in Section X, significant
benefits are associated with the rule. These benefits include the
annual reduction in impingement mortality of 652 million age-one
equivalents for existing units. There are, in addition, other important
benefits, many of which EPA cannot quantify. These benefits include
effects on many shellfish species and nonuse values associated with the
vast majority of fish and shellfish. The rule also requires
establishing site-specific entrainment controls through a process in
which specific environmental conditions and the localized benefits of
entrainment reductions will be assessed along with the costs of
controls. The information generated in the required studies will
enhance the transparency of decision making and provide an opportunity
for meaningful public participation, ensuring that decision making is
based on the best available data. Overall, these requirements and
subsequent Director actions under this rule will foster protection and
restoration of healthy aquatic ecosystems that have important
commercial, recreational, aesthetic and cultural values to their
surrounding communities. Many of the benefits that will result from the
rule are not monetized or quantified, and as a result the Agency's
monetized benefits analysis underestimates the totality of the rule's
benefits. On the basis of the record, EPA has determined that the
impingement mortality and entrainment controls will result in benefits
that justify the costs of the rule.
EPA also notes that it was able to generate only a partial estimate
of
[[Page 48350]]
benefits for today's rule. In particular, EPA's analysis does not fully
quantify or monetize certain potentially important categories of
benefits, such as existence values for threatened and endangered
species, secondary and tertiary ecosystem impacts, benthic community
impacts, shellfish impacts and the impacts arising from reductions in
thermal discharges that would be associated with closed-cycle cooling.
Changes in fish assemblages due to impingement, entrainment and thermal
effects are also not fully valued. These categories of benefits which
are not fully valued are often referred to as nonuse benefits--i.e.,
benefits that people derive apart from using an affected resource, such
as fishing. For example, nonuse benefits would include the value that
individuals place on knowing that an aquatic ecosystem is healthy. EPA
conducted a nonuse benefits transfer was based on a species that
represents less than one percent of adverse environmental impacts. EPA
developed and implemented an original stated preference survey to
estimate total values (use plus nonuse values) for aquatic resource
improvements under 316(b) regulatory options. EPA decided not to employ
the survey results for purposes of decision-making and EPA has not
accounted for values estimated from the survey in the quantitative
comparison of costs and benefits. It is also important to note that
EPA's stated preference survey was designed to estimate respondents'
willingness to pay for changes in the health of fish populations and
aquatic ecosystems and to be statistically representative at large
(regional and national) scales; the results were not specifically
designed to be statistically representative at the facility level for
the assessment of benefits for individual site-level permitting
decisions.
As noted at the outset, it is not always the case that private
decision making regarding withdrawals of cooling water takes into
account society's preferences for fish protection, nor are there market
transaction opportunities for individuals to express their willing to
pay for fish protection. Thus, despite the limited information on
monetized social benefits, EPA has concluded that the benefits of
today's rule justify the costs of today's rule.
2. Comparison of the Other Options
As discussed above, EPA considered three other primary options
before selecting today's rule. See Section VI.F Other Options
Considered for more detailed explanation of each option. Exhibit VI-1
illustrates a comparison of the total annualized social costs and
benefits.
Exhibit VI-1--Comparison of the Primary Options for 316(b)
[$2011 Millions at 2013, 3% discount rate]
------------------------------------------------------------------------
Total
annualized Monetized
Option social benefits
cost
------------------------------------------------------------------------
Proposal Option 4............................... $251.8 $31.0
Final Rule...................................... 274.9 32.8
Proposal Option 2............................... 3643.2 -1542.6
------------------------------------------------------------------------
I. Site-Specific Consideration of Entrainment Controls
As described above, EPA is not promulgating uniform national
requirements for entrainment for existing facilities. Instead, EPA is
setting standards for entrainment that include a framework by which a
facility will be subject to a site-specific determination by EPA or a
State NPDES permitting authority of appropriate BTA requirements for
entrainment. This section describes the process for determining section
316(b) requirements for an individual facility under the national BTA
standard for entrainment. It describes the elements that the Director
must consider in the permitting decision and how costs and benefits may
be considered in such an evaluation.
1. Implementation of a Site-Specific Evaluation of Entrainment for
Existing Facilities
The final rule requires a site-specific determination of BTA
entrainment conditions in individual permits and prescribes the
requirements for that permitting proceeding. The final rule includes
permit application requirements for facilities with a cooling water
intake structure. These requirements are designed to elicit the
information the Director needs to determine the best technology for
reducing entrainment for a particular facility, including information
pertinent to an assessment of whether the benefits justify the costs of
any particular control measures under consideration.
Today's final rule is a modification of the proposed approach of a
site-specific BTA entrainment determination. It will result in one of
two outcomes at any facility:
1. Determination that the facility must install additional control
measures that reduce entrainment beyond that achieved by the currently
installed equipment. These may include closed-cycle cooling and/or
other technologies.
2. Determination that the facility's current, existing technology
for entrainment achieves the entrainment BTA requirements under the
national BTA standard.
Thus, EPA expects that, under this approach, there will be
additional entrainment controls for some facilities and none for
others. Even where the Director's determination requires no additional
control measures, the Director may conclude the permit should include
conditions that specify proper operation and maintenance of the
installed technology.
EPA notes that in a number of areas of the country (California,
Delaware, New York, and New England; see, for example, DCNs 10-6963 and
10-6841, and EPA Region I's Brayton Point), permitting authorities have
already required or are considering requiring existing facilities to
install or retrofit to closed-cycle cooling systems. These facilities
are still subject to today's rule but the existing requirements have
been taken into account in costing.
For facilities that withdraw more than 125 mgd, the rule generally
requires that the facility conduct an entrainment study as part of its
permit application. The study will indicate, at a minimum, the specific
entrainment data collection methods, taxonomic identification to the
lowest taxon possible, latent mortality identification, documentation
of all methods, and quality assurance/quality control procedures for
sampling and data analysis appropriate for a quantitative survey. Peer
reviewers must be selected in consultation with the Director, who may
consult with EPA and Federal, State, and Tribal fish and wildlife
management agencies with responsibility for fish and wildlife
potentially affected by the cooling water intake structure. Data from
the entrainment study is important to provide corroboration of any
through-facility entrainment survival study results in Sec.
122.21(r)(7) or from any other studies conducted.
The final rule also requires the permit application to include the
following information as part of the entrainment study (which refers to
the requirements at Sec. 122.21(r)(9) through (13), as opposed to the
Entrainment Characterization Study at Sec. 122.21(r)(9)). For a
thorough discussion of these study requirements, see Section VIII:
An engineering study of the technical feasibility and
estimated costs of all candidate entrainment control technologies,
including closed-cycle cooling, fine-mesh screens with a mesh size of 2
mm or smaller, and water reuse or alternative sources;
A discussion of any outages, downtime, or other effects on
revenue
[[Page 48351]]
along with a discussion of all reasonable attempts to mitigate these
cost factors
A discussion of the magnitude of water quality benefits,
whether qualitative, quantitative or monetized, of the candidate
entrainment reduction technologies evaluated; thermal discharges; and
A discussion of the changes in non-water quality
environmental impacts and other factors attributed to technologies and/
or operational measures considered, including, for example, increases
and decreases in the following: Energy consumption; air pollutant
emissions including particulates and their health and environmental
impacts; noise; safety (e.g., visibility of cooling tower plumes,
icing); electric grid reliability, and facility reliability.
The permit application will provide the Director with information
about options for entrainment reductions at the site and other possible
avenues for addressing any adverse effects from entrainment. The
purpose of the entrainment study and other permit application materials
is to assist the Director in better understanding the effect of
entrainment on species in the waterbody from which cooling water is
withdrawn. More specifically, the entrainment study will identify
species that might be entrained, and estimate their baseline
entrainment rates given current entrainment controls. Moreover, the
entrainment study will include information about the aquatic ecosystem
effects of entrainment of species, and any threatened and endangered
species whose range of habitat includes waters where the facility's
intake is located. An understanding of the potential ecosystem
consequences of entrainment for species will help inform Director
decisions about additional information required in the permit
application, or permit requirements for any possible additional
technologies and management practices. EPA will endeavor to identify
high-quality examples of entrainment studies as they are completed, and
post them to its Web site for this rule as a resource for study
preparation.
EPA's benefits estimates were based on an extrapolation of
available literature on impingement and entrainment studies; the
specific Entrainment Characterization Study prepared by a facility
could lead to a different estimate of impingement and entrainment for
that facility relative to its share of EPA's estimate in the analysis
supporting this rule and in the record.
Following the Director's review of this information, the Director
must determine what BTA entrainment requirement to propose and explain
in writing the basis for the draft permit. The draft permit will then
be available for comment from the interested public under the
Director's normal permitting process.
2. Site-Specific Consideration of Cost and Benefits
In establishing requirements under section 316(b) of the CWA, the
Supreme Court in Entergy made clear that one factor that EPA may, but
is not required, to consider is the costs and benefits associated with
various control options. That is, in setting standards, EPA may
consider the benefits derived from reductions in the adverse
environmental impacts associated with cooling water intake structures
and the costs of achieving the reductions. As previously explained,
following E.O. 13563, EPA has determined that the benefits of the final
rule justify its costs. In addition, EPA has explained (in Section II.C
above) why consideration of quantitative and qualitative social costs
and benefits may be appropriate in the site-specific determinations
when establishing entrainment controls.
In the site-specific proceeding, the Director must consider, among
other factors, monetized, quantified and qualitative social benefits
and social costs of available entrainment controls, including
ecological benefits and benefits to any threatened or endangered
species. The Director may be able to reject otherwise available
entrainment controls if the costs of the controls are not justified by
their associated benefits (taking into account monetized, quantified,
and qualitative benefits), and the other factors discussed in the final
rule.
In making the site-specific entrainment BTA requirements
determination, the final rule requires that the Director consider the
information submitted under Sec. 122.21(r) with the section 316(b)
permit application. Further, in the case of the larger withdrawing
cooling water intake structures (125 mgd AIF or greater), the rule
requires submission of additional information including, studies on
entrainment at the facility, the costs and feasibility of control
options, and information on the benefits of entrainment controls. In
evaluating benefits, the Director should not ignore benefits that
cannot be monetized or quantified or consider only the impingement and
entrainment reductions that can be counted. To result in appropriate
decisions from society's standpoint, the assessment of benefits must
take into account all benefits, including categories such as
recreational, commercial, and other use benefits; benefits associated
with reduced thermal discharges; reduced losses to threatened and
endangered species; altered food webs; benefits accruing nonlocally due
to migration of fish; nutrient cycling effects; and other nonuse
benefits. Merely because it is difficult to put a price tag on those
benefits does not mean that they are not valuable and should not be
included at least qualitatively in any assessment. The rule does not
require the Director to require a facility owner or operator to conduct
or submit a willingness-to-pay survey to assess benefits. Further, the
rule does not limit the Director's discretion to consider non-water
quality impacts in determining whether further entrainment measures are
justified. When some benefits are not monetized, the requirement to
consider costs and benefits in today's rule does not mean the Director
should base decisions solely on the monetized benefits and costs,
ignoring the non-monetized benefits. Instead, the Director should
consider the costs and what the magnitude of the non-monetized benefits
would have to be in order to justify the costs.
An aggregate evaluation of benefits (even if accurate) would not
account for the variations in benefits from location to location. On
the basis of available information, EPA's analysis of benefits relied
on extrapolating data from existing impingement and entrainment
characterization studies to all facilities in the same region on a
flow-weighted basis. Differences in species, life stages, and
biological abundance across intake locations (even within a region)
could lead to very different results for a site-specific analysis of a
facility as compared to that facility's share of national costs and
benefits, even if the national results are, on average, accurate. A
national assessment tends to mask variations in benefits and costs from
different geographical locations for different water bodies. For
example:
Some fish species at coastal facilities have biological
spawning attributes that differ from those at other locations.
The proportion of the receiving water withdrawn for
cooling could also vary among sites.
The values that communities place on their resources could
vary from site to site.
One ecological environment might experience large masses
of hardier eggs and larvae subject to potential entrainment; another
will have fewer but less hardy eggs and larvae susceptible to
entrainment. Without
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detailed study information, it's difficult to ascertain which
ecological environment faces the greater adverse environmental impact
from a similar cooling water intake.
The resulting differences in the value of reduced entrainment--
which could be dramatic for some sites--necessarily disappear in a
national aggregation of results. The Agency has decided that this
masking of variation in benefits further supports EPA's decision to
require consideration of the site-specific benefits of entrainment
control technologies in the site-specific process to establish
entrainment controls.
The Director must then explain the basis for rejecting an available
technology not selected for entrainment control in light of the
submissions after consideration of the three factors that supported
EPA's determination not to establish a uniform national entrainment
standard based on closed-cycle cooling. The Director also must base the
determination about BTA controls on the number and types of organisms
entrained, including Federally-listed, threatened and endangered
species and designated critical habitat (e.g., prey base) as well as
consideration of the site-specific social costs and benefits (monetized
and nonmonetized) of the various control technologies considered for
the facilities.
As noted, the Director may reject an otherwise available
entrainment technology as the BTA requirement (or not require any
additional BTA controls) if the social costs of the controls are not
justified by the social benefits (monetized and nonmonetized). EPA
decided to adopt this approach in determining site-specific entrainment
controls because it is permissible under Entergy, under E.O. 13563, and
consistent with the more than 30-year history of section 316(b)
permitting decisions.
This history illustrates the role that cost/benefit considerations
have played. As early as 1977, EPA in a permitting decision and a
General Counsel opinion explained that, while section 316(b) does not
require a formal cost-benefit analysis, the relationship of costs and
benefits may be considered in 316(b) decision making. In re Pub. Serv.
Co. of N.H. (Seabrook Station, Units 1 and 2), No. 76-7, 1977 WL 22370
(June 10, 1977), remanded on other grounds, 572 F.2d 872 (1st Cir.
1978); accord In re Central Hudson Gas & Elec. Corp., Op. EPA Gen.
Counsel, NPDES No. 63, 1977 WL 28250, at *8 (July 29, 1977). In the
more than 30 years since, EPA and State permitting authorities have
considered the relationship between costs and benefits to some extent
in making individual permitting decisions. See, for example, In re Pub.
Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), No. 76-7, 1978 WL
21140 (E.P.A. Aug. 4, 1978), aff'd, Seacoast Anti-Pollution League v.
Costle, 597 F.3d 306, 311 (1st Cir. 1979).
Because E.O. 13563 directs agencies to propose and adopt rules only
upon a reasoned determination that the benefits justify the costs, EPA
is allowing this consideration to be applied at the permit level. This
approach is consistent with the historical application of section
316(b) requirements and will allow for a full assessment in permit
decisions of both qualitative and quantitative benefits and costs. As
designed, EPA's requirement for the establishment of site-specific BTA
entrainment requirements strikes an appropriate balance between
environmental improvements and costs, allowing the Director to consider
all the relevant factors on a site-specific basis and determine BTA on
the basis of those factors.
After considering the factors relevant to a site, the Director must
establish appropriate entrainment controls at those facilities. The
Director must review available control technology and may reject
otherwise available entrainment controls as BTA if the social costs of
the controls are not justified by their social benefits (taking into
account both quantified and non-quantified benefits) or if the Director
concludes that there are other unacceptably adverse factors that cannot
be mitigated. As designed, EPA's national BTA standard for establishing
site-specific BTA entrainment requirements strikes an appropriate
balance between environmental improvements and costs by selectively
requiring closed-cycle cooling or other entrainment technologies at
some facilities, without requiring the same technologies at all
facilities.
3. Potential Cost for Site-Specific Entrainment Controls
For the proposed rule, EPA analyzed possible additional costs
associated with reductions in entrainment mortality that might result
from the Directors' determinations of site-specific BTA requirements.
Because this process will play out over a number of years as Directors
consider waterbody-specific data, local impacts, and public comment,
and weigh land availability, air quality impacts, and remaining useful
life, those estimates of the costs of site-specific determinations are
highly speculative. EPA is not presenting specific cost estimates today
for prospective entrainment requirements because we do not have in hand
the robust data that will be generated for individual site-specific
settings as required under the national BTA standard for entrainment.
Without that refined information on a site-specific basis, EPA has no
ability to predict Director decision-making and therefore, the Agency
is not estimating costs associated with the ultimate entrainment
requirements. Similarly and for the same reasons, EPA did not estimate
costs associated with requirements at Sec. Sec. 125.94(g),
125.94(c)(8) or 125.94(c)(9).
EPA estimates that the most effective technology for reducing
entrainment, closed-cycle cooling, is not available to at least one
quarter of all facilities because of geographic constraints, air
permitting restrictions in a nonattainment area and remaining useful
life of the facility. EPA has limited information on which facilities
these are, despite the certainty that these availability concerns are
real and significant. In addition, EPA does not have in hand the site-
specific data that will be generated as a result of today's rule. If
EPA had this data, it would be possible to estimate the costs and
benefits ultimately associated with the Directors' site-specific
determinations under the national BTA standard for entrainment. The
hypothetical costs generated at proposal were reported in an attempt to
signal that EPA neither expects that zero facilities would be subject
to closed-cycle cooling as a result of the site-specific BTA process
for entrainment, nor that all facilities at which these technologies
are feasible would be subject to closed-cycle cooling requirements.
Without the site-specific information, there is significant uncertainty
around any estimates EPA could generate of these costs (including those
reported at proposal) and benefits.
VII. Response to Major Comments on the Proposed Rule and Notices of
Data Availability (NODAs)
Over 1,100 organizations and individuals submitted comments on a
range of issues in the proposed rule, including over an additional
62,000 letters from individuals associated with mass letter writing
campaigns. An additional nearly 250 comments were received on the two
NODAs. Responses to all comments, including those summarized here, are
in the Response to Comments document in the official public docket (see
DCN 12-0004). To facilitate a more comprehensive response and to
simplify the task of discussing EPA's rationale for promulgating the
final rule, EPA is
[[Page 48353]]
responding to these public comments in essay form. Each topic area
discussed in the comment letters has been addressed in one of the
comprehensive essay responses. The major comments received and EPA's
responses are summarized in this section.
A. Scope and Applicability
1. Source of Water--Impoundments
Many commenters expressed concern that the proposed rules do not
adequately address the unique water bodies resulting from the many man-
made reservoirs specifically designed and constructed as cooling water
impoundments (referred to as cooling ponds in the proposed rule).
Commenters expressed confusion regarding the applicability of the
proposed regulations because impoundments have both intakes from the
impoundments and intakes that supply water to the impoundment. Many
requested that EPA clarify that man-made impoundments, built to supply
water for power plants, do not constitute water of the United States
for purposes of implementing the rule or that they should be classified
as meeting the definition of closed-cycle cooling.
Response: As discussed in Section I, facilities that withdraw
cooling water from impoundments that are waters of the United States
and that otherwise meet the criteria for coverage (including the
requirement that the facility has or will be required to obtain an
NPDES permit) are subject to today's rule. Revisions to the definition
of waters of the U.S. are outside the scope of this rulemaking.
However, today's regulatory definition of closed-cycle recirculating
systems specifies that such a system may include impoundments of waters
of the U.S. where the impoundment was constructed prior to today's
final rule. To meet the rule definition for closed-cycle recirculating
system, this impoundment must have been lawfully created for the
purpose of serving as part of the cooling water system as documented in
the project purpose statement for the Clean Water Act section 404
permit obtained to construct the impoundment. In the case of an
impoundment whose construction pre-dates the CWA requirement to obtain
a section 404 permit, EPA expects documentation of the project's
purpose to be demonstrated to the satisfaction of the Director. This
documentation could be some other license or permit obtained to
lawfully construct the impoundment for the purposes of a cooling water
system, or other such evidence as the Director finds necessary.
The definition of closed-cycle recirculating system at Sec.
125.92(c)(1) of today's rule also specifies that impoundments that are
not waters of the United States but withdraw make-up water from waters
of the U.S. meet the definition of a closed-cycle recirculating system,
if make-up withdrawals have been minimized. These impoundments are
constructed in uplands, and are not required to obtain a 404 permit.
Thus, these impoundments do not need to provide documentation of the
project's purpose.
2. New Units
In the proposal, EPA defined new units as newly built units added
to increase capacity at the facility. The definition did not include
any rebuilt, repowered or replacement unit, including any units where
the generation capacity of the new unit is equal to or greater than the
unit it replaces. Many industry stakeholders agreed that the definition
of new units should not include repowered existing units. Others
thought that new units should be treated similarly to existing units
with entrainment standards applied on a site-specific basis and that
the nine proposed factors should also be applied to entrainment
decisions for new units. Environmental organizations argued that EPA
should set a deadline by which all existing facilities must comply with
the new unit standards and that EPA's exclusion of repowered/rebuilt
facilities created a loophole through which existing facilities could
perpetually operate as an existing unit, even after replacing all of
the generating equipment. Many of the comments had several elements in
common:
Requirements should be flexible enough to address sites
where meeting the requirements is not technically feasible (e.g.,
limited land availability).
EPA needs to provide greater clarity regarding how new
unit standards apply to manufacturing facilities.
The DIF is a more appropriate parameter for determining
compliance because AIF cannot be determined until after the system is
built, and baseline AIF would require assumptions about as-yet
undetermined operational factors.
It is unclear how the new unit requirements will be
applied to manufacturing units, and the requirements do not appear to
consider the circumstance where a new unit is constructed at an
existing manufacturing facility where construction of the new unit does
not require any modifications to the existing intake structure.
Some commenters have noted that the new unit provisions
are a departure from previous determinations and are unclear. They
argue that they have not had adequate opportunity to comment on this
issue and request EPA re-propose new unit requirements if it wants to
continue with this initiative.
Response: EPA's definition of a ``new unit'' for the final rule can
be found at Sec. 125.92(u). New units includes the addition of a
stand-alone unit that is constructed at an existing facility. The rule
definition makes it clear that the new unit may be for the same general
industrial activity as the existing facility. Because the requirements
are much like the Phase I requirements for new facilities the costs for
installing controls at new units are similar to the costs imposed on
new facilities. The cooling water withdraws made by the rest of the
existing facility are subject to the requirements at 40 CFR 125.94(c)
and (d).
With respect to impingement mortality and entrainment, the final
rule requires, at Sec. 125.94(e)(1), that new units achieve flows
commensurate with that of a closed-cycle recirculating system. As with
the new facility Phase I rule, the new unit may choose to meet an
alternative requirement at 40 CFR 125.94(e)(2) and demonstrate to the
Director that the technologies and operational measures employed will
reduce the level of adverse environmental impact from any cooling water
intake structure used to supply cooling water to the new unit to a
comparable level to that which would be achieved upon implementing
closed-cycle recirculating for that new unit. This includes a
demonstration showing that the entrainment reduction is equivalent to
90 percent or greater of the reduction that could be achieved through
implementing a closed-cycle recirculating system. This demonstration
must also include a showing that the impacts to fish and shellfish,
including important forage and predator species, within the watershed
will be comparable to those which would result if the facility were to
implement a closed-cycle recirculating system.
Facilities may choose to install a closed-cycle recirculating
system, and EPA has observed that many new units are selecting closed-
cycle recirculating systems on their own, particularly for combined
cycle and natural gas for reasons unrelated to 316(b) (such as water
availability). In these cases, benefits related to reductions in IM&E
would be expected to occur.
Finally, for new units at existing facilities, the Director may
establish alternative requirements if the data specific to the facility
indicate that
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compliance with the requirements of paragraphs (e)(1) or (2) of Sec.
125.94 for each new unit would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirements
at issue, or would result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other
than impingement or entrainment, or significant adverse impacts on
local energy markets. This provision is identical to that provided in
the Phase I new facility rule.
B. Proposed Amendments Related to Phase I Rule
Commenters suggested that restoration be allowed in a range of
situations, including where a nuisance species is a problem that will
get worse with the use of cooling water intake structure technology,
where affected species are not species of concern in man-made lakes,
and to reduce the cost of meeting 316(b) requirements (i.e., offset
losses).
Response: The Second Circuit found that EPA exceeded its authority
by allowing facilities subject to CWA section 316(b) to comply with
section 316(b) through restoration measures and, thus, EPA has deleted
these provisions from the regulations at Sec. Sec. 125.84 and 125.86
to make the rule consistent with the court decisions.
C. Environmental Impact Associated With Cooling Water Intake Structures
Many commenters expressed concern that limited scientific evidence
exists that measureable aquatic population or community effects occur
as a result of cooling water withdrawals and that impingement mortality
and entrainment mortality requirements should not apply unless adverse
environmental impacts are demonstrated. They also noted that not all
environmental impacts are adverse. For example, removal of invasive
species or quickly reproducing species might not be harmful.
Response: EPA disagrees. The evidence shows that the total number
of aquatic organisms lost annually is in the hundreds of billions, or
is 1.9 billion on an age-one equivalent basis. Additional data provided
in comments shows aquatic organisms are lost through impingement and
entrainment by all types of cooling water intake structures. The data
demonstrates that the effects of cooling water intake structures on the
aquatic environment are significant and widespread. In addition, there
is documented evidence of population level effects of cooling water
intakes for certain species in certain instances. See, for example, 69
FR 41587, July 9, 2004 for a discussion from the 2004 Phase II rule.
Also, Bayshore, Indian River and Indian Point are discussed in the BA
for the final rule.
D. EPA's Approach to BTA
1. Relationship of Costs and Benefits
Many commenters expressed concern that the proposed rule's costs
significantly outweigh the benefits and that studies, technology
modifications, monitoring, and reporting should not be required if
costs exceed benefits.
Response: While the rule costs exceed the monetized benefits as
presented, EPA has concluded that the costs do not outweigh total
benefits when both monetized and nonmonetized benefits are considered.
EPA notes that the monetized benefits are only a subset of all
benefits. In the absence of complete estimates of nonuse benefits, EPA
estimated partial nonuse benefits for the final rule using the benefits
transfer approach from proposal. This approach is still a partial
estimate, because the nonuse benefits transfer was based on a species
that represents less than one percent of adverse environmental impacts.
With respect to entrainment, the rule authorizes the Director to
consider costs versus benefits on a site-specific basis. With respect
to impingement mortality, the rule provides seven compliance
alternatives based on a set of widely used, demonstrated, proven
technologies, many of which have been in use for decades and whose
efficacy is well supported in EPA's record.
2. Site-Specific Approach
Many commenters agreed with EPA's site-specific approach for
entrainment mortality requirements but argued that the same approach
should also be applied to impingement mortality requirements. State
agencies and environment organizations are concerned that the site-
specific entrainment determinations will create additional
administrative burdens on already overextended permitting authorities
which could exacerbate permit backlogs.
Response: EPA does not agree that impingement mortality is best
addressed by the same approach adopted for entrainment. This is because
EPA has been able to identify low-cost technologies that are available,
feasible and demonstrated for impingement mortality nationally. EPA has
not been able to identify an available, feasible and demonstrated
technology nationally for entrainment, and therefore has adopted as its
national BTA entrainment standard a structured process for determining
on a site-specific basis what entrainment controls are the best
technology available at a particular facility. EPA agrees that site-
specific entrainment has potential to create additional burdens for
states, but EPA has tried to limit this burden by simplifying its
information collection requirements from those at proposal. EPA has
streamlined the information collection requirements so that information
necessary for the Director to make a BTA determination is submitted by
the permittee in the permit application early in the process, thus
minimizing the number of transactions between permittee and the
Director.
E. BTA Performance Standards
1. Impingement Standards
EPA received a substantial number of comments on how the final rule
should address impingement mortality. EPA proposed an impingement
mortality standard based on the performance of modified traveling
screens with fish handling and return that required achievement of a
numeric IM performance standard. As an alternative EPA proposed that a
facility could demonstrate that either the design intake velocity or
the actual intake velocity at its operation was less than 0.5 fps. Most
of the commenters, including members of the U.S. Congress, state and
local elected officials, and industry stakeholders, requested
additional flexibility in complying with the impingement mortality
standards. While the proposal would not specifically require the use of
modified traveling screens with a fish handling and return system to
meet the impingement mortality standards, some commenters interpreted
the proposed rule as requiring this. EPA proposed impingement mortality
standards that were expressed as a monthly average and a 12-month
average. EPA recognizes, however, that some regulated entities might
find a technology-based compliance option, rather than a performance-
based approach, more attractive. Such an approach, particularly the
specification of pre-approved technologies, could offer higher
regulatory certainty, easier demonstration of compliance, and might
offer a less expensive alternative because of reduced monitoring
requirements associated with pre-approved technologies. Some commenters
viewed the proposed impingement mortality standard as overly stringent
and requested that EPA establish alternative impingement mortality
standards, including site-specific impingement mortality
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requirements similar to those proposed for entrainment. Other
commenters provided data pertaining to the performance of technologies,
including modified traveling screens used as the basis for the
impingement mortality performance standard. Several industry
stakeholders stated that, despite EPA's best intentions, the proposed
rule applied a one-size-fits-all approach for impingement mortality.
While all the suggested changes to the proposal seek to provide
additional flexibility through a variety of approaches, most of the
comments had several elements in common:
Defining modified traveling screens as a pre-approved
technology or otherwise streamlining the NPDES process for facilities
using the candidate technology on which BTA is based. Thus, EPA would
designate certain technologies or certain conditions as complying with
the impingement requirement.
Providing a mechanism to identify other technologies that
perform comparably to modified traveling screens.
Modifying the proposal so that facilities that have
already reduced the rate of impingement could obtain credit toward the
impingement mortality standard.
Developing a more tailored approach to protecting
shellfish.
Creating alternatives for facilities with very low (de
minimis) impingement levels or mortality rates.
Providing additional clarity on species of concern as it
pertains to demonstrating compliance with the numeric impingement
mortality performance standard.
Reevaluating the impingement mortality numerical
performance standards.
In addition, as noted above, EPA also received a number of comments
suggesting that it adopt a site-specific approach to reducing
impingement mortality similar to the proposed approach for addressing
entrainment, rather than uniform national requirements for impingement
mortality and a site-specific approach for entrainment only.
Many commenters expressed concern that the entrapment requirements
were not well defined and would require costly technologies that are
not considered in EPA's cost estimates and could be difficult to comply
with, particularly where cooling systems employ impoundments or basins
downstream of the initial intake structure.
Response: See the earlier discussion concerning how EPA determined
the numeric impingement mortality performance standard. Additionally,
see earlier discussion for an explanation of how EPA revised the
impingement mortality standard to provide seven alternatives for
compliance.
EPA agrees that specific entrapment requirements are not necessary
and requirements for facilities to deploy technologies to avoid
entrapment have been deleted from the final rule. However, a facility
that entraps fish must count the entrapped organisms as impingement
mortality.
2. Entrainment Standards
A substantial number of commenters supported EPA's site-specific
approach for entrainment standards. Suggested revisions to the approach
included the following:
EPA should recognize the value of waterbody-based
requirements, including withdrawals on lakes/reservoirs and less than 5
percent of rivers as not requiring entrainment mortality.
Units with a low capacity utilization should be exempt
from entrainment mortality.
Facilities with AIF of less than 125 mgd should be
presumed as entrainment mortality compliant.
EPA should consider entrainment survival.
Response: With respect to waterbody-based requirements and capacity
utilization thresholds, EPA disagrees with commenters suggestions.
There is no fundamental difference in technological performance based
on waterbody so there is no need to subcategorize based on waterbody.
EPA found that low CUR facilities are generally peaking plants that
operate at full capacity for portions of days during a few months or
less. Further, EPA found that some sites continue to withdraw water
through their cooling water intake structure even when no power is
being generated. If that period of cooling water intake operation
corresponds with times when spawning is occurring, those facilities
could have significant impacts from impingement and entrainment.
Therefore, simply being a low CUR unit does not imply no adverse
environmental impacts. Instead, EPA found that low CUR should be looked
at more closely on an individual unit basis. EPA has included a
provision in the final rule that states where a generating unit has an
annual average capacity utilization rate of less than 8 percent
averaged over a 24-month block contiguous period, the owner or operator
may request that the Director establish less stringent standards for
IM. With respect to facilities below 125 AIF being considered
entrainment compliant, EPA disagrees with the comment since any
facility at any flow may have an adverse environmental impact. With
regard to entrainment survival, EPA does allow for consideration of
entrainment survival. The monitoring requirements for entrainment for
new units at Sec. 125.96(d)(3) states that mortality after passing the
cooling water intake structure must be counted as 100 percent mortality
unless you have demonstrated to the approval of the Director that the
mortality for each species is less than 100 percent.
3. Closed-Cycle Cooling
Both industrial stakeholders and many state agencies endorsed an
approach that deems facilities with closed-cycle cooling to be in
compliance with the BTA impingement mortality standard, and eligible
for reduced monitoring and reporting requirements. Most industrial
stakeholders agreed with the EPA decision that closed-cycle cooling
should not be imposed as a national BTA standard. They argue that
although closed-cycle cooling might be available and achievable at many
facilities, requiring closed-cycle cooling nationally has numerous
drawbacks including the following:
Requirements for closed-cycle flow reduction do not take
into consideration the site-specific limitations at some facilities
(e.g., blowdown water quality, scale, fouling problems).
Cooling towers would result in significant adverse impacts
from fine particulates, carbon dioxide emissions, evaporative water
loss, and other issues.
Commenters expressed concern that the proposed definition of a
closed-cycle recirculating system is far more restrictive than the
definition used in the Phase I rule. It includes only systems that
withdraw make-up flow intermittently, are designed to operate above
minimum COC, reduce flow by a specified percentage (depending on
whether salt or fresh water), and did not include impoundments that are
waters of the United States. Some commenters stated that while they
might have been effectively operating as closed-cycle units for many
years, they have concerns with their ability to comply with the
definition in the proposal, particularly with respect to the specified
COC.
Response: EPA agrees that facilities employing a closed-cycle
recirculating system for entrainment should also be deemed in
compliance with the impingement mortality standard, as long as the
system is properly operated. While a closed-cycle recirculating
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system is the most effective technology for reducing entrainment, EPA
has not established BTA based on closed-cycle cooling because EPA
concluded it was not BTA, for the reasons specified in Section VI.
Regarding the definition of closed-cycle cooling, EPA identified two
parameters that demonstrate proper operation: Flow reduction and cycles
of concentration. To provide flexibility, EPA has removed the numeric
levels of the metrics as threshold, while retaining the minimized
makeup flows aspect of the definition. Therefore while the definition
in this final rule does not establish fixed requirements in terms of
COC and comparable percentage flow reduction to qualify as a closed-
cycle recirculating system, the rule provides that a closed-cycle
recirculating system ``generally'' will achieve the specified
benchmarks that characterize a properly operating closed-cycle cooling
system. EPA further recognizes that certain unavoidable circumstances
could exist where the specified COC or percent reduction values might
not be achievable. Such site-specific circumstances could include
situations where water quality-based discharge limits might limit the
concentration of a pollutant that is not readily treatable in the
cooling tower blowdown or situations where the source water quality
could lead to unavoidable problems concerning scale formation, solids
buildup, corrosion, or media fouling. If a facility can demonstrate
that these occurrences are unavoidable, under the definition in the
final rule, the Director may determine that such a facility is a
closed-cycle recirculating system, taking into account the site-
specific circumstances. In addition, EPA has explained how the
conditions added to the existing facilities definition do not in effect
make it more stringent than the Phase I definition of closed-cycle
recirculating systems. The auxiliary electricity a facility uses to run
the fans in a closed-cycle system is electricity the facility can't
sell. The opportunity cost to the facility of using that electricity to
run the fans is the forgone revenue they would have been able to earn
if they had run their cooling water system in once-through mode. The
forgone revenue provides the incentive for a facility to run its
closed-cycle system in once-through mode, rather than in closed-cycle
mode. Thus, EPA adjusted the definition of a closed-cycle recirculating
system to be appropriate for retrofit situations.
F. Implementation
Many commenters expressed concern that the compliance timeline for
impingement mortality and entrainment requirements should be
synchronized to prevent a facility from having to install technology to
comply with impingement mortality requirements and then later be
required to install entrainment mortality technology.
Response: To address this concern, EPA revised the impingement
mortality compliance requirements to provide that after issuance of a
final permit establishing the entrainment requirements under Sec.
125.94 (d), the owner or operator of an existing facility must comply
with the impingement mortality standard in paragraph Sec. 125.94(c) as
soon as practicable. When the Director establishes a compliance
schedule under Sec. 125.94(d), the schedule must provide for
compliance as soon as practicable. Thus, EPA has synchronized decision
making about technology requirements, avoiding situations where
investments in IM controls would later be rendered obsolete by
entrainment control requirements.
G. Costs
1. Impingement Mortality Technology Costs
Commenters expressed concern about the approach for technology
assignments used to estimate compliance with the impingement mortality
standards and generally asserted that costs were underestimated. These
concerns included the following:
The EPA incorrectly assumed traveling screens were an
available technology at most facilities.
EPA underestimated the costs of modified traveling
screens.
EPA underestimated the difficulty and costs of installing
fish returns.
Response: EPA disagrees that traveling screens are not an available
technology at most facilities; survey data provided by industry shows
that 93 percent of generators and 73 percent of manufacturers already
have screens. EPA agrees that some facilities may not be able to
readily upgrade their screens to modified traveling screens with fish
return, but that the vast majority can.
EPA has updated the estimated costs of the rule to reflect the
difficulty of installing fish return and adjusted the cost of modified
traveling screens to reflect most recently available vendor data.
Specifically, EPA reviewed the cost methodology and made a number of
revisions including the following:
EPA revised the technology assignment such that only those
model intakes that have existing traveling screens are assigned
modified traveling screen costs.
EPA increased the estimated capital costs for modified
traveling screens by 20 percent.
EPA increased the estimated capital costs of fish returns
and provided for an additional increase for facilities whose intakes
would be difficult to install fish returns.
For further discussion, see Section IX and the TDD (Chapter 8).
2. Entrainment Mortality Technology Costs
Industrial stakeholder commenters argued that closed-cycle cooling
costs are underestimated and the cost analysis fails to include any
costs for entrainment requirements. Riverkeeper argued that the EPA
closed-cycle costs are overestimated.
Response: For both the proposal and this final rule, EPA revised
the methodology for estimating closed-cycle costs from what was used
for Phase II and Phase III. EPA's revised methodology is based on the
cost methodology provided by the Electric Power Research Institute
(EPRI). EPRI based its cost methodology on over 50 actual and planned
closed-cycle cooling system retrofits and EPA concluded that these cost
estimates better reflect actual costs. EPRI has updated their closed-
cycle cost methodology since EPA adoption of the earlier version and
provided an estimate of closed-cycle costs for generators with a design
flow above 50 mgd (See DCN 12-6807). A comparison between the EPRI
estimates and comparable EPA estimates indicate that the EPA capital
and downtime costs are somewhat lower than the EPRI estimates, while
the EPA energy penalty costs are higher. (See DCN 12-6656.) While
Riverkeeper cites actual costs from retrofit projects completed in 1998
and 2002 to support the argument that EPA's capital costs are
overestimated, EPA has identified more recent closed-cycle retrofits
where the capital costs were much higher than the EPA average,
suggesting that the costs used by EPA in the final rule are
representative of the range of costs that may occur nationwide. (See
DCN 12-6656.) Thus EPA considers its closed-cycle costs to reasonably
reflect actual costs.
EPA also received estimated costs for closed-cycle retrofits at
small, medium, and large manufacturing cooling systems from the
American Chemical Council (ACC). A comparison of these costs to
comparable EPA estimates indicated that for larger systems the costs
are mostly in agreement but that for smaller systems (e.g., 5,000 gpm),
the EPA cost estimates are lower. EPA's acknowledges its methodology
uses a linear approach and does not fully
[[Page 48357]]
account for the increased costs associated with the diseconomies of
scale at the lower end of the spectrum of system sizes.
Under EPA's selected option, compliance for entrainment reduction
requirements is established on a site-specific basis. Because no
particular result is prescribed under this approach, it is difficult to
ascribe compliance costs for this aspect of the rule without the site-
specific information that will be generated as a result of the national
BTA standard for entrainment decision-making established by today's
rule. For Proposal Options 2 and 3 where closed-cycle cooling would be
required, EPA did estimate costs for closed-cycle cooling. EPA has not
estimated what site-specific determinations will be made as part of the
analysis.
H. Monitoring and Reporting
1. Velocity Monitoring
Many commenters explained that it would be difficult to directly
measure through-screen velocity for screen technology and agreed with
the suggestion in the NODA that EPA should allow for calculation of
through-screen velocity. Also, many were concerned that a velocity
limit based on minimum water levels would be difficult to comply with.
Of concern are extreme conditions that are beyond the facility's
control (e.g., low water due to drought).
Response: EPA agrees that direct measurement of intake velocity on
a traveling screen may be problematic in some circumstances, and the
final rule allows intakes to comply with the low velocity IM compliance
alternatives by either calculation or direct measurement. Compliance
will be demonstrated through monitoring and reporting of actual or
calculated intake velocities. Short-term exceedances of the velocity
may be permissible for brief periods, with Director approval, for
purposes of maintaining the cooling water intake system, such as
backwashing the screen face. EPA expects that facilities will employ
appropriate design and operational measures to ensure that the maximum
velocity is not exceeded during minimum ambient source water surface
elevations, as can be anticipated through best professional judgment
using hydrological data.
2. Impingement Mortality Monitoring
EPA received many comments concerning impingement mortality
monitoring. Issues regarding impingement monitoring included the
following:
Many commenters expressed concern that the impingement
mortality standard is unclear as to what species the impingement
mortality requirements apply.
Intakes with low impingement would have difficulty
calculating impingement mortality.
Monitoring requirements for impingement mortality are
excessive, especially given the physical and biological challenges of
appropriate sampling.
Monitoring requirements should be eliminated for properly
installed/operated pre-approved technologies.
Impingement ``selects'' impaired organisms, resulting in
bias.
Response: EPA has addressed concerns regarding monitoring in the
final rule. For example, there is no biological compliance monitoring
for pre-approved and streamlined compliance alternatives in Sec.
125.94 (c)(1) through (6) of today's rule beyond that required for the
permit application, and monitoring may be greatly reduced for other
facilities. EPA recognizes that biological monitoring can be expensive,
which factored into EPA significantly reducing those requirements. With
respect to intakes with low impingement having difficulty calculating
impingement mortality, facilities can demonstrate under Sec.
125.94(c)(6) that the rate of impingement is reduced due to intake
location or other technologies or factors. Further, under Sec.
125.94(c)(11) a facility can demonstrate to the Director that there is
a de minimis rate of impingement such that no additional controls are
warranted.
3. Reporting Requirements
Comments concerning reporting requirements included the following:
Commenters argue that permit application deadlines are
unreasonable, especially given the limited number of consultants
available and that EPA overestimates the number of facilities that have
completed these studies.
Peer review requirements are overly burdensome.
Permit application requirements are burdensome and EPA
should revise the proposed rules to remove, limit, or streamline the
numbers and types of data, studies, and reports required. Permit
application requirements should be reduced for smaller facilities with
intake flow in the 2-125 mgd range.
The proposed rule requires the Sec. 122.21(r) permit
application materials for each permit cycle, regardless of whether the
facility has been modified. After the initial assessment of BTA in the
first permit cycle under the new rule, the permittee should not be
required to do additional studies and submit further documentation
unless there is a significant change in the facility's cooling system.
Response: EPA notes that facilities have several flexibilities to
address the first point, including: (1) If a permit is issued prior to
July 14, 2018, the Director can delay submission requirements until
such time that the facility can complete them and (2) in permit terms
subsequent to the first permit issued under today's rule, the Director
can waive some or all of the studies. With respect to peer review, EPA
disagrees that peer review is overly burdensome. How to undertake a
peer review is widely known, generally following a well-established
process. EPA notes that peer review is a normal part of Agency
activities, and that commenters generally favor the application of peer
review to environmental data and analyses. With respect to the burden
of the permit application process and subsequent permit cycles, EPA has
reduced the permit application requirements for the final rule and
streamlined biological data collection to two years of data collected
as part of the permit application (with the exception of the few
facilities expected to comply with the impingement mortality standard
under the alternative at Sec. 125.94(c)(7)). In addition, entrainment
studies are not prescribed for facilities below 125 mgd, although the
Director may require the facility to provide information beyond the
basic permit application information. Also, the Director can waive
study requirements in permit terms subsequent to the first permit
issued under today's rule.
I. Endangered Species Act
Some commenters argued that it is inappropriate to automatically
treat T&E species in a special category and provide for special
consideration for them under the rule. These commenters asserted that
EPA has no basis for incorporating ESA requirements into the rule and
addressing ESA species under the NPDES program; they argued that the
ESA operates independently. Other commenters argued that EPA has an
obligation under the ESA to consult with the Services if cooling water
intake structures are likely to affect threatened or endangered
species.
Response: EPA has addressed T&E species and critical habitat in
this rule to the extent necessary to ensure that this action is
consistent with both the Endangered Species Act and CWA section 316(b).
Section 7 of the Endangered Species Act states that
[[Page 48358]]
``each Federal agency shall, in consultation with and with the
assistance of [the services] insure that any action authorized, funded,
or carried out by [the agency] . . . is not likely to jeopardize the
continued existence of any threatened or endangered species or result
in the destruction or adverse modification of [designated critical]
habitat.'' Under CWA section 316(b), facilities subject to NPDES
permitting that have cooling water intake structures are subject to BTA
to minimize adverse environmental impacts. The final rule requires
NPDES 316(b) permittees to identify all Federally-listed threatened and
endangered species and/or designated critical habitat that are or may
be present in the action area. The Director may reject an otherwise
available technology as a basis for entrainment requirements if the
Director determines there are unacceptable adverse impacts including
impingement, entrainment, or other adverse effects to Federally-listed
threatened or endangered species or designated critical habitat. EPA
consulted with the Services under the ESA regarding this rule, and a
summary of the requirements related to threatened or endangered species
is discussed in Section VIII.K of this preamble.
VIII. Implementation
The following sections describe how the Agency expects the final
rule requirements to be implemented. The requirements of today's final
rule will be applied to facilities through NPDES permits issued by EPA
or authorized States under CWA section 402. A facility may generally
choose to demonstrate compliance with the final rule by demonstrating
compliance for the entire facility, or by demonstrating compliance for
each individual cooling water intake structure. For example, a facility
with two intakes could demonstrate flow reduction commensurate with an
existing closed-cycle recirculating system for the first intake, and
demonstrate the intake velocity at the screen face is less than 0.5
feet per second at the second intake. Alternatively, the facility could
demonstrate that each of the facility's intakes are designed with an
intake velocity of less than 0.5 feet per second. For details about the
scope and applicability of today's final rule, see Section I above.
Today's final rule (as described in Section IV above) establishes
permit application requirements for existing facilities in Sec. Sec.
122.21 and 125.95, monitoring requirements in Sec. 125.96, and record-
keeping and reporting requirements in Sec. 125.97. All existing
facilities subject to the final rule that withdraw from one or more
cooling water intake structures with a facility-wide DIF of greater
than 2 mgd are required to comply with the national BTA impingement
mortality standard at Sec. 125.94(c) and national BTA entrainment
standard at Sec. 125.94(d). New units at existing facilities are
required to meet the national BTA impingement mortality and entrainment
standards at Sec. 125.94(e).
The final regulations also require the Director to review permit
application materials submitted by each regulated facility, establish
impingement mortality and entrainment requirements in accordance with
this rule, and issue permits that include monitoring and record-keeping
requirements (Sec. 125.98). The permit application requirements,
monitoring, record-keeping, and reporting requirements for each of the
compliance alternatives are detailed in the following sections.
A. When does the final rule become effective and how are the
requirements sequenced in an orderly way?
This rule becomes effective on October 14, 2014. The requirements
in this rule will then be implemented in NPDES permits as the permits
are issued.
EPA has sought to address the information and studies required in
the permit application associated with ongoing permitting proceedings
and subsequent permitting after the first implementation of this rule
in a permit. The EPA realizes that, in some cases, a facility may
already be in the middle of a permit proceeding at the time of
promulgation of this rule, or the Director may have already required
much of the same information be submitted by the facility prior to
promulgation of today's final rule. Therefore the rule includes several
provisions that provide flexibility for the permit application
requirements. First, in the case of any permit expiring after July 14,
2018, under Sec. 125.95 the facility must submit permit application
materials required in Sec. 122.21(r) with its next NPDES permit
renewal application. Second, in the case of any permit expiring prior
to July 14, 2018, under Sec. 125.95 a facility may request that the
Director waive the submission date of the permit application
requirements of Sec. 122.21(r) based on a showing by the owner or
operator of the facility that it could not develop the information for
which such a waiver is requested by the time required for submission of
the permit renewal application. If the Director then chose to allow a
delay for the submittal of any of the information requirements of Sec.
122.21(r), the Director would then determine the schedule for
submission of any delayed requirements to be as soon as practicable.
Third, in the case of permit proceedings begun prior to the effective
date of today's rule, and issued prior to July 14, 2018, the Director
should proceed. See Sec. Sec. 125.95(a)(2) and 125.98(g). In such
circumstances where permit proceedings have already begun prior to the
effective date of the rule, these facilities will still need to submit
the appropriate permit application materials found at Sec. 122.21(r)
permit applications during their next application. Additionally, while
EPA expects that many facilities will already comply with Sec.
125.94(c), in some cases the facility will need to choose one of the
compliance alternatives for IM in their subsequent permit cycle.\83\ In
particular, EPA expects the facility would submit the information
required in Sec. 122.21(r), and the Director would make a
determination of BTA for entrainment for that facility. Only after the
Director has established site-specific BTA requirements for entrainment
reduction will the facility have to select the compliance alternative
on which it will rely to meet the IM requirements of today's rule. The
Director may either amend the permit to include the IM requirements or
include them in a subsequent permit if the Director determines the
proposed controls are consistent with Sec. 125.94(c). The Director
would establish a schedule incorporating each of these sequential
actions. In addition, the rule allows the Director the flexibility to
grant a request for a waiver of permit application requirements in
Sec. 122.21(r)(6) in order to accommodate the circumstances described
here. See Sec. Sec. 122.21(r)(1)(i) and 125.95(a). Fourth, in permit
applications subsequent to the first permit issued under Sec.
125.94(a)(1) with all required information submitted under Sec.
122.21(r), the Director may approve a request to reduce information
required, if conditions at the facility and in the waterbody remain
substantially unchanged since the previous application.\84\ See Sec.
125.95(c). In
[[Page 48359]]
addition to all of these flexibilities, today's final rule gives
advance notice to affected facilities about permit application
materials and compliance schedules.
---------------------------------------------------------------------------
\83\ EPA's costs do not assume zero compliance costs for prior
BTA determinations or permit proceedings; all facilities were
assessed costs on the basis of technologies in place as described in
Section IX.
\84\ However, if conditions at the facility or in the waterbody
have in fact changed substantially since the previous permit
application, the Director will revisit data collection needs and
possibly the BTA determination. The presence of any habitat
designated as critical, or species listed as threatened or
endangered after issuance of the current permit (whose range of
habitat or designated critical habit includes waters where a
facility intake is located) constitutes potential for a substantial
change that must be addressed by the owner/operator in subsequent
permit applications, unless the facility received an exemption
pursuant to 16 U.S.C. 1536(o) or a permit pursuant to 16 U.S.C.
1539(a) or there is no reasonable expectation of take.
---------------------------------------------------------------------------
While the final rule has both reduced and streamlined the permit
application requirements, the EPA has determined that for many
facilities, it may take as long as 39 months to plan, collect, and
compile the data and studies required to be submitted with the permit
application (see Section C below for a more detailed discussion of each
application element). The rule therefore specifies that July 14, 2018
reflects the date after which all permit application requirements must
be submitted as specified at Sec. 125.95. Specific permit requirements
may not need a full 39 months for completion, therefore the Director
may establish a schedule for submission of the required permit
application elements. For example, planning for required sampling may
take 6 months, inclusive of establishing a sampling team, developing
sampling protocols, and acquiring necessary equipment. Source water
sampling and characterization under Sec. 122.21(r)(4) includes two
years' worth of data. Therefore, the EPA expects a minimum of 30 months
will be necessary for submission of Sec. 122.21(r)(4), assuming the
facility collects new data; this timeframe could be shorter if the
facility chooses to use existing biological data. Facilities choosing
to comply with the IM requirements through either Sec. 125.94(c)(5) or
(c)(6) must collect at least 2 years data upon which the facility would
demonstrate that the modified traveling screens or the facility's
systems of technology have been optimized to minimize impingement
mortality. Therefore, the EPA expects a minimum of 30 months will be
necessary for submission of Sec. 122.21(r)(6), assuming the facility
collects new data. Collection of entrainment characterization data and
studies should occur in parallel with IM studies and sampling. Thus,
after the initial 6 month planning period, facilities that do not
already have recent entrainment characterization data will collect a
minimum of 2 years entrainment data under Sec. 122.21(r)(9).
Facilities are expected to need an additional 9 months to assemble the
entrainment data and studies as required by Sec. 122.21(r)(9) through
(12). Therefore, the EPA has concluded that as many as 39 months will
be necessary for final submission of all requirements under Sec.
122.21(r). This time frame will be adequate for facilities under 125
mgd AIF; facilities over 125 mgd AIF also need to have their
122.21(r)(10) to (12) studies peer reviewed. The EPA expects 3 months
will be needed for completion of peer review requirements and
generation of a final report. However, many of the facilities over 125
mgd AIF were subject to the Phase II rule before it was suspended (that
is, all electric generators over 125 mgd AIF are also above 50 mgd
DIF), and likely need less time for up front planning and/or data
collection. Therefore, the EPA has concluded that as many as 39 months
will be adequate for these facilities to meet all requirements under
Sec. 122.21(r). These time frames are consistent with the timeline EPA
included in the proposed rule, and also matches the 3\1/2\ years
previously provided in the Phase II rule for data collection and
studies. EPA notes the submission of the studies required with the
permit application should not be confused with the schedule for
compliance with the BTA requirements, as discussed below.
EPA has also sought to sequence the impingement mortality controls
so that a facility may select and implement these controls after the
Director's determination of controls on entrainment. With respect to
entrainment requirements, existing facilities withdrawing greater than
125 mgd AIF must submit permit application materials including the
studies prescribed in today's final rule at Sec. 122.21(r)(9) through
(13) in order to help the Director determine what entrainment controls
to require at the facility. Facilities at or below this threshold must
submit any information requested by the Director. The Director will
then review these materials and determine if further entrainment
controls are necessary. Once the BTA requirements for entrainment have
been established, the facility would finalize its chosen method for
compliance with impingement mortality under Sec. 125.94(c). It would
then be appropriate for the Director to develop a schedule whereby the
facility would proceed to design, construct, and implement its
technologies for impingement mortality, for entrainment, or for both
together should the same technology addresses both impacts. In this
manner, the EPA has harmonized the schedules for meeting both
impingement mortality requirements and entrainment requirements.
EPA further notes that approximately 2 percent of facilities have
no controls in place for impingement or entrainment, or that a facility
may choose to install modified traveling screens as part of its
compliance response. In these circumstances, not only does EPA expect
such decisions to be delayed until after the Director has determined
the BTA requirements for entrainment, EPA acknowledges that the
required optimization study of Sec. 122.21(r)(6) cannot be completed
until after the technology has been designed and constructed. EPA has
provided the Director the flexibility to establish an appropriate
schedule for submission of such studies under Sec. 125.95(a)(2).
After the effective date of the regulation, when the first permit
implementing the new regulatory requirements is issued, permitting
authorities typically consider the need to allow facilities some period
of time to come into compliance. Under today's final rule, facilities
will have to comply with the impingement mortality and entrainment
requirements as soon as practicable according to the schedule of
requirements set by the Director. The concept of compliance schedules
may be found in the generally applicable NPDES regulations at 40 CFR
122.47. Because section 316(b) has no statutory deadline for meeting
the ``best available technology for minimizing adverse environmental
impact'' standard, there is no statutory bar to use of a compliance
schedule in appropriate circumstances. The EPA recognizes that it will
take facilities time to upgrade existing technologies, and install new
technologies, and that there are limits on the number of facilities
that can be simultaneously offline to install control technology and
still supply goods and services to orderly, functioning markets. It is
appropriate for the Director to take this into account when
establishing a deadline for compliance. Any such schedule would take
into account factors provided in Sec. 125.98(c), such as measures
needed to maintain adequate energy reliability by an electric
generating facility, or extenuating circumstances such as scheduled
production outages at a manufacturing facility.
There may be overlap in the technologies used to comply with
impingement mortality and entrainment standards, which could result in
the facility needing more time to comply with the impingement mortality
requirements. For example, if a facility plans to retrofit to wet
cooling towers to reduce entrainment, the wet cooling towers technology
will also comply with the impingement mortality
[[Page 48360]]
standard under Sec. 125.94(c)(1). As such, the Director would schedule
compliance with the impingement mortality requirements to match the
schedule for entrainment requirements. Further, EPA recognizes that in
some cases, especially where additional entrainment control
technologies are required, the facility could require a lengthy period
of time to design, construct, and implement control technologies.
Therefore, the rule authorizes the Director, at Sec. 125.94(h), to
establish interim BTA requirements in a facility's schedule of
requirements, for impingement mortality, entrainment, or both, where
necessary on a site-specific basis.
In contrast to the proposed rule, today's final rule does not
include a requirement for compliance with the impingement mortality
standards within eight years. EPA expects, however, that the final rule
will generally result in compliance within a similar period of time.
The combination of permit issuance, the Director's determination of BTA
for entrainment, and the subsequent schedule of requirements for
impingement mortality will result in some facilities, particularly
those already in a permitting proceeding, or with controls similar to
what the new permit requires, being in compliance within a very short
time frame. Some facilities that are not now in a permitting proceeding
may need as much as three and a half years to fully complete their
studies and data collection, and depending on the types of control
selected, may need additional time to design, construct, and implement
their technologies. In some cases, the Director's determination for
entrainment may result in a facility meeting both the impingement
mortality and entrainment BTA requirements in fewer than eight years.
All facilities will be required to follow their schedule as determined
by the Director.
EPA notes that there is a three-year period after the effective
date of this rule before Directors will be receiving permit
applications containing the full set of application requirements in
Sec. 122.21(r). EPA is aware that currently many NPDES permits for
facilities with a CWIS have been administratively continued. For these
administratively continued permits, the Director should consider if any
permits would need additional updated information to support the permit
issuance decision. The Director may, under 40 CFR 122.21(g)(13),
request additional information including any permit application
requirements in Sec. 122.21(r).
B. How does the final rule reduce biological monitoring requirements?
The EPA has streamlined the biological data and study requirements
for both impingement mortality and entrainment into one comprehensive
set of permit application requirements and provisions. The Source Water
Baseline Biological Characterization Data, impingement technology
performance optimization study, Entrainment Characterization Study, and
where applicable, entrainment performance studies are all conducted
within the same two year time frame prior to submission of an
application for a permit. Further, as shown in Exhibit VIII-1, EPA's
analysis indicates that more than 99 percent of existing facilities
will choose an alternative for impingement mortality that does not
require continual biological compliance monitoring. Thus any required
biological data consists solely of that required to be collected to
meet the permit application requirements. See Section F for further
discussion.
Exhibit VIII-1--EPA's Projections of How Facilities Will Choose To
Comply With the IM Requirements
------------------------------------------------------------------------
Percent of total
IM compliance alternative Intake count \a\ intakes
------------------------------------------------------------------------
Closed-cycle recirculating system 307 18
\c\................................
Design velocity..................... 362 21
Actual velocity..................... 226 13
Existing offshore velocity cap \c\.. 10 1
Modified traveling screens.......... 488 29
System of technologies.............. 278 17
Impingement Mortality Performance 12 0.7
Standard...........................
De minimis.......................... **\b\ **\b\
-----------------------------------
Total........................... 1,682 100
------------------------------------------------------------------------
\a\ EPA's compliance costs for each facility are based on the sum of the
facility's intake level compliance costs. Some facilities have more
than one intake. See IX.B.2 for more information on the use of the
survey data.
\b\ EPA has not estimated which facilities will be determined to be ``de
minimis'' under Sec. 125.94(c)(11) by the Director. For purposes of
this analysis, EPA has assumed no facilities fall under the ``de
minimis'' provision.
\c\ EPA is not projecting facilities will install closed-cycle
recirculating systems or offshore velocity caps to comply with the IM
requirements, rather these facilities already have these technologies
installed.
By merging the data collection and studies into the permit
application requirements, EPA expects approximately half of all
affected facilities will be able to complete the initial permit
application within a few months.\85\ In the case of a facility that was
not previously required to collect data and conduct studies, it may
take up to 45 months lead time for a permit to be applied for, and
additional time for the permit to be issued. Although the permit
application times may be longer for the first permit cycle after this
rule, this is a tradeoff for the flexible IM requirements.
---------------------------------------------------------------------------
\85\ For example, facilities that were subject to Phase II will
have already collected most of the data and information as part of
the Phase II rule issued February 16, 2004 and implemented up until
suspension of that rule on July 9, 2007.
---------------------------------------------------------------------------
Once the permit is issued, EPA anticipates very few, if any,
facilities will be required to conduct ongoing biological compliance
monitoring related to impingement controls; for more details, see
Section F and Exhibit VIII-4. Instead, for each subsequent permit cycle
each facility would either (1) demonstrate to the Director that
facility operations and waterbody characteristics are substantially
unchanged, or (2) update any biological characterization data.
Anticipating that NPDES permits are renewed when they expire, the
update to the facility's biological characterization and any
corresponding biological performance evaluations would be conducted
approximately every five years.
[[Page 48361]]
C. What information will I be required to submit to the director when I
apply for my NPDES permit?
Today's final rule establishes, at Sec. 122.21(r), permit
application requirements for all facilities subject to the requirements
of Sec. 125.94. Each permit application element at Sec. 122.21(r) is
described in more detail below. The final rule requires existing
facilities to prepare and submit some of the same information as
previously required for new facilities subject to subparts I or N
(i.e., Phase I new power plants and manufacturers or Phase III new
offshore oil and gas facilities), namely the information at Sec.
122.21(r)(2) through (4). In addition, the rule adds subparagraphs for
existing facilities to the regulations at Sec. 122.21(r)(4), as well
as (r)(5) through (13) to include the information and study
requirements specific to existing facilities.
In the case of a new unit constructed at an existing facility, EPA
expects much of the information submitted by the facility in previous
permit applications would still be current and relevant. Therefore, EPA
has reduced the permit application requirements to those necessary to
update the facility's previously submitted information under Sec.
122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), (r)(7) and (r)(8). In
other words, the new unit permit application is intended to describe
the changes to these documents as a result of the addition of the new
unit. In addition, the facility must submit information specific to the
new unit's chosen compliance method at Sec. 122.21(r)(14).
All existing facilities are required to complete and submit permit
application studies to describe the source waterbody (Sec.
122.21(r)(2)), cooling water intake structures (Sec. 122.21(r)(3)),
characterize the biological community in the vicinity of the cooling
water intake structure (Sec. 122.21(r)(4)), cooling water system
(Sec. 122.21(r)(5)), and operational status (Sec. 122.21(r)(8)).
Facilities that already use a closed-cycle recirculating system must
still submit this information in their permit application. The Director
will need, for instance, the biological sampling data in Sec.
122.21(r)(4) to serve as a record basis for their BTA determination in
the permit. Furthermore, in Phase I, new facilities were required to be
commensurate with closed-cycle, to meet the 0.5 fps velocity limit, and
to collect two years' worth of biological data to establish a record
basis for impacts at the facility. In addition, the data collected here
is important to inform an owner/operator's evaluation of whether and if
so what threatened or endangered species or designated critical habitat
are or may be present in the action area.
All existing facilities must describe their existing impingement
and entrainment technologies or operational measures and a summary of
their performance, including but not limited to reductions in
impingement mortality and entrainment due to intake location and
reductions in total water withdrawals and usage (Sec.
122.21(r)(5)(iii)). All facilities must also complete and submit their
chosen compliance method for impingement mortality (Sec.
122.21(r)(6)). This includes identification of any requests for BTA
determinations under Sec. 125.94(c)(11) de minimis rates of
impingement or Sec. 125.94(c)(12) low capacity utilization power
generation units. In addition, the owner or operator of an existing
facility must submit the information required under paragraph (r)(6) of
Sec. 122.21 for the alternative specified at 40 CFR 125.94(c) that the
owner or operator of an existing facility chooses to rely on as its
method of compliance with the BTA Standards for Impingement Mortality
specified in 40 CFR 125.94. Because the IM compliance options Sec.
125.94(c)(1), (2), and (4) include pre-approved technologies, the owner
or operator of a facility choosing one of these three options to comply
with the IM requirements does not have either biological studies or
biological compliance monitoring related to the applicable IM standard.
Compliance options Sec. 125.94(c)(3), (5), and (6) are streamlined
options. For two of these three options, the permit application element
Sec. 122.21(r)(6) further requires a site-specific study for the
purposes of technology optimization to minimize impingement mortality,
including additional biological data collection that in most cases
would occur during the same two year period of data collection for the
Source Water Baseline Biological Characterization Data required under
Sec. 122.21(r)(4) to characterize the baseline, and a demonstration
that the operation of specific technologies at your facility have been
optimized to minimize impingement mortality. The owner or operator of a
facility choosing one of these three options to comply with the IM
requirements do not have ongoing biological compliance monitoring as
part of the applicable IM standard. As discussed in the previous
section, the Director can establish a schedule \86\ for submitting the
optimization study if the facility first needs to install additional
technology for IM.
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\86\ The Director could, for example, issue a permit before the
optimization study has been completed, and include a schedule for
submission of the optimization study in the newly issued permit.
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All existing facilities may submit to the Director additional
permit application studies to describe biological survival studies that
address technology efficacy and other studies on entrainment at the
facility (Sec. 122.21(r)(7)). This requirement does not impose any new
or additional study requirements. This permit application element
includes the submission of existing studies conducted by or relevant to
the facility. Further, the burden of this requirement has been reduced
since proposal by only referring to studies of entrainment.
All existing facilities that withdraw more than 125 mgd AIF \87\ of
water for cooling purposes must also submit additional information to
characterize entrainment and assess the costs and benefits of
installing various potential technological and operational controls.
These facilities are required to submit to the Director additional
permit application studies including Sec. 122.21(r)(9), Entrainment
Characterization Study; Sec. 122.21(r)(10), Comprehensive Technical
Feasibility and Cost Evaluation Study; Sec. 122.21(r)(11), Benefits
Valuation Study; and Sec. 122.21(r)(12), Non-water Quality
Environmental and Other Impacts Assessment. As with the biological data
collection required of some facilities under Sec. 122.21(r)(6), EPA
expects biological data collection for the purposes of entrainment
characterization to occur during the same two year period of biological
data collection required under Sec. 122.21(r)(4). EPA notes that
facilities below the 125 mgd threshold are not automatically exempt
from entrainment requirements. The Director may determine that
entrainment studies may be required or that entrainment controls may
need to be installed for any cooling water intake structure. See the
Section VI of this preamble for more information.
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\87\ AIF is calculated from the most recent three years' data or
five years in subsequent permit cycles. As such, AIF is a variable
number. It is possible that a facility could transition from below
125 mgd to above 125 mgd if the facility significantly increases
withdrawal of cooling water, such as if the facility increases
capacity or if it adds a new unit. In these cases, the facility will
then be required to conduct the studies and meet the permit
application requirements at Sec. 122.21(r)(9)-(13). This
consequence is intended to incentivize facilities to reduce or reuse
water for cooling, thereby avoiding the need for additional permit
application studies.
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The final rule further requires the studies at Sec. 122.21(r)(10)
through (r)(12) be subject to an external peer review as required at
Sec. 122.21(r)(13); a separate peer review is not required for Sec.
122.21(r)(9), as it is implicitly
[[Page 48362]]
reviewed via its use in Sec. 122.21(r)(10) and (r)(11). EPA expects
the facility would first notify the Director of the peer review in
advance. For example, facilities could identify their peer reviewers
near the beginning of their biological data collection for the required
Entrainment Characterization Study at Sec. 122.21(r)(9). Since a
facility's permit application requires two years of biological data,
EPA expects this is more than enough time for the facility to identify
peer reviewers, and for the Director to disapprove of a peer reviewer
or require additional reviewers. Further, this provides the Director
ample opportunity to confer with those agencies with responsibility for
fish and wildlife potentially affected by the cooling water intake
structure, including other Federal, State, and Tribal agencies.
Similarly, in the case of permits for electric generating utilities,
EPA expects this is enough time to confer with state co-regulators such
as public utility commissions, or independent system operators whose
responsibility it is to ensure reliability of the electricity grid. To
minimize the overall time required to conduct a peer review, all
studies conducted by the facility under Sec. 122.21(r)(10) through
(12) will be subject to peer review at the same time, in a holistic
fashion. Additional guidance on conducting peer review is available on
EPA's Peer Review Program Web site at www.epa.gov/peerreview. EPA
expects the Director will use the permit application information,
studies, and peer review results to assess the impingement and
entrainment impacts of the cooling water intake structure and determine
appropriate technological or operational controls, or both, as
necessary.
While all facilities must submit Sec. 122.21(r)(2) through (6) and
(r)(8) and, where applicable (r)(7), EPA has reduced the permit
application requirements based on the facility's chosen compliance
method for impingement mortality. Exhibits VIII-2 and VIII-3 below
illustrate the permit application requirements as they relate to an
existing facility's chosen compliance methods. EPA expects permit
application requirements for new units will consist of updates to
previously submitted permit applications for the rest of the existing
facility at which the new unit is being constructed.
For a new unit at an existing facility, EPA expects that only the
appropriate and relevant updates to the existing facility's permit
application materials are required (in addition to newly developed
materials required at Sec. 122.21(r)(14)). For example, the facility
would update Sec. 122.21(r)(3) to indicate the addition of the new
unit, any new intakes associated with the new unit, expected
operational characteristics, etc. For the owner or operator of a new
unit and with an AIF greater than 125 mgd, the permit application
materials under Sec. 122.21(r)(9)-(13) are required. In those
circumstances where data specific to the facility indicate that
compliance with the requirements of paragraphs (e)(1) or (2) of Sec.
125.94 for a new unit would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirements
at issue, or would result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other
than impingement or entrainment, or significant adverse impacts on
local energy markets, the rule requires the submission of such data as
part of Sec. 122.21(r)(14). EPA notes that when a new unit increases
an existing facility's AIF greater than 125 mgd, the permit application
requirements also include Sec. 122.21(r)(9) through (13). Further,
facilities may need several years to complete studies and data
collection and, depending on the types of controls selected, may need
additional time to design and construct their technology. Thus while
the rule requires the permit application for a new unit at least 180
days prior to commencing cooling water withdrawals, it is in the
facility's best interest to submit this data well in advance in order
to prevent any delays in the Director's review of permit application
materials and subsequent issuance or renewal of the facility's NPDES
permit. For the owner or operator of a new unit opting to comply via
Sec. 125.94(e)(2) the application materials required under Sec.
122.21(r)(14) must demonstrate entrainment reductions equivalent to 90
percent or greater of the reduction that could be achieved through
compliance with Sec. 125.94(e)(1).
Exhibit VIII-2--Summary of Permit Application Requirements for Existing Facilities According to Existing Facilities' Chosen Method for Compliance With
Impingement Mortality Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 122.21 subsection
Compliance approach to --------------------------------------------------------------------------------------------------------------------------
impingement (r)(2) (r)(3) (r)(4) (r)(5) (r)(6) (r)(6)(i) (r)(6)(ii) (r)(8)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Closed-cycle recirculating Yes........... Yes........... Yes........... Yes.......... Yes.......... No........... No........... Yes.
system.
Design intake velocity....... Yes........... Yes........... Yes........... Yes.......... Yes.......... No........... No........... Yes.
Actual intake velocity....... Yes........... Yes........... Yes........... Yes.......... Yes.......... No........... No........... Yes.
Existing offshore velocity Yes........... Yes........... Yes........... Yes.......... Yes.......... No........... No........... Yes.
cap.
Modified traveling screens... Yes........... Yes........... Yes........... Yes.......... Yes.......... Yes.......... No........... Yes.
Combination of technologies.. Yes........... Yes........... Yes........... Yes.......... Yes.......... No........... Yes.......... Yes.
Impingement Mortality Yes........... Yes........... Yes........... Yes.......... Yes.......... Maybe........ Maybe........ Yes.
Performance Standard.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit VIII-3--Summary of Permit Application Requirements for Existing Facilities: Entrainment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 122.21 subsection
Compliance approach to ------------------------------------------------------------------------------------------------------------------------
entrainment (r)(7) (r)(8) (r)(9) (r)(10) (r)(11) (r)(12) (r)(13)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Closed-cycle recirculating Yes............. Yes............. Var.\a\........ Var.\a\........ Var.\a\........ Var.\a\........ Var.\a\
system.
Director BTA entrainment Yes............. Yes............. Yes............ Yes............ Yes............ Yes............ Yes.
determination: facility AIF
above 125 mgd.
Director BTA entrainment Maybe........... Maybe........... Maybe.......... Maybe.......... Maybe.......... Maybe.......... Maybe.
determination: facility AIF
125 mgd or below.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Director has the discretion to waive.
[[Page 48363]]
In addition, the Director may set information requirements not
included in today's rule to aid in best professional judgment
permitting, such as will occur for entrainment at facilities below 125
mgd AIF, and for impingement and entrainment at existing facilities
below 2 mgd DIF, neither of which are required by today's rule to
submit items in Sec. 122.21(r)(9) through (r)(13). The Director may
find aspects of the permit application requirements to be relevant in
such situations. A summary of each permit application requirement
follows.\88\
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\88\ Where a closed-cycle recirculating system withdraws greater
than 125 mgd AIF, the information required in Sec. 122.21(r)(9) to
(13) is required, unless the Director reduces or waives some or all
of the information required.
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1. Sec. 122.21(r)(2) Source Water Physical Data
This requirement is unchanged from the Phase I rule and the 2004
Phase II rule. The facility is required to submit data to characterize
the facility and evaluate the type of waterbody potentially affected by
the cooling water intake structure. The applicant is required to submit
a narrative description and scaled drawings showing the physical
configuration of all source water bodies used by the facility,
including areal dimensions, depths, salinity and temperature regimes,
and other documentation that supports the determination of the
waterbody type where each cooling water intake structure is located;
identification and characterization of the source waterbody's
hydrological and geomorphological features, and the methods used to
conduct any physical studies to determine the intake's area of
influence in the waterbody and the results of such studies; and
locational maps. The Director uses this information to evaluate the
appropriateness of any design or technologies proposed by the
applicant.
2. Sec. 122.21(r)(3) Cooling Water Intake Structure Data
This requirement is unchanged from the Phase I rule and the 2004
Phase II rule. This data is used to characterize the cooling water
intake structure and evaluate the potential for impingement and
entrainment of aquatic organisms. Information on the design of the
intake structure and its location in the water column allows evaluation
of which species and life stages might be subject to impingement and
entrainment. A diagram of the facility's water balance is used to
identify the proportion of intake water used for cooling, make-up, and
process water, as well as any cooling water supplied by alternate
sources, such as reuse of another facility's effluent. The water
balance diagram also provides a picture of the total flow in and out of
the facility, and is used to evaluate gray water, waste water, and
other reuses in the facility. The applicant is required to submit a
narrative description of the configuration of each of cooling water
intake structure and where it is in the waterbody and in the water
column; latitude and longitude in degrees, minutes, and seconds for
each cooling water intake structure; a narrative description of the
operation of each of cooling water intake structure, including design
intake flows, daily hours of operation, number of days of the year in
operation and seasonal changes, if applicable; a flow distribution and
water balance diagram that includes all sources of water to the
facility, recirculating flows, and discharges; and engineering drawings
of the cooling water intake structure.
3. Sec. 122.21(r)(4) Source Water Baseline Biological Characterization
Data
This information is similar to that required in the Phase I rule.
Existing facilities are required to characterize the biological
community in the vicinity of the cooling water intake structure and to
characterize the operation of the cooling water intake structures. This
supporting information must include existing data if they are
available. However, the facility may supplement the data using newly
conducted field studies if it chooses to do so. The information the
applicant must submit includes identification of data that are not
available and efforts made to identify sources of the data; a list of
species (or relevant taxa) for all life stages and their relative
abundance in the vicinity of the cooling water intake structure; and
identification of the species and life stages that would be most
susceptible to impingement and entrainment. All species should be
evaluated, including the forage base and those species most important
in terms of significance to commercial and recreational fisheries. In
addition, the applicant must identify and evaluate the primary period
of reproduction, larval recruitment, and period of peak abundance for
relevant taxa; data representative of the seasonal and daily activities
(e.g., feeding and water column migration) of biological organisms in
the vicinity of the cooling water intake structure. In addition,
instead of the information required at Sec. 122.21(r)(4)(vi), the
owner or operator of an existing facility or new unit at an existing
facility must identify all Federally-listed threatened and endangered
species and/or designated critical habitat that are or may be present
in the action area pursuant to Sec. 125.95(f). The action area can
generally be considered the area in the vicinity of impingement and
entrainment at the cooling water intake structure. The applicant must
also include documentation of any public participation or coordination
with Federal or State agencies undertaken. If the applicant supplements
the information with data collected using field studies, supporting
documentation for the Source Water Baseline Biological Characterization
Data must include a description of all methods and quality assurance
procedures for sampling, and data analysis including a description of
the study area; taxonomic identification to the lowest taxon possible
of sampled and evaluated biological assemblages (including all life
stages of fish and shellfish); and sampling and data analysis methods.
The sampling or data analysis (or both) methods used must be
appropriate for a quantitative survey and based on consideration of
methods used in other biological studies performed in the same source
waterbody. The study area should include, at a minimum, the area of
influence of the cooling water intake structure. The applicant may also
identify protective measures and stabilization activities that have
been implemented and describe how these measures and activities
affected the baseline water condition in the vicinity of the intake.
EPA is adding Sec. 122.21(r)(4)(ix), (x) and (xi) to the Source
Water Baseline Biological Characterization Data for existing
facilities. Item (ix) simply defines the term ``Source Water Baseline
Biological Characterization Data.'' EPA is requiring item (xi),
identification of fragile species found at the facility. EPA notes that
in contrast to the proposed rule, the permit application does not
require submission of the proposed ``species of concern.'' EPA found
that the term ``species of concern'' was too similar to terms as used
in the context of T&E (threatened and endangered) species, and may
cause confusion over existing Services or State requirements for such
species. Further, despite EPA's efforts to distinguish between species
of concern and RIS (representative indicator species) in the NODA (77
FR 34325, June 11, 2011), EPA found that many commenters were still
confused by the language. Instead, EPA is adopting the term ``fragile
species'' and using the term exactly as it is used with the impingement
mortality data and criteria used in calculating the
[[Page 48364]]
impingement mortality standards of the rule. The definition for
``fragile species'' at Sec. 125.92 is a species of fish or shellfish
that has an impingement survival rate of less than 30 percent even when
the BTA technology of modified traveling screens are in operation. EPA
has identified fragile species in the Chapter 11 of the TDD for the
final rule. Further, EPA is providing examples, in the list of 14
specific species in today's regulatory definition as a non-exclusive
list. This list includes only those species specifically analyzed as
part of the performance standards development. If a permit applicant
can sufficiently demonstrate a record basis, the permitting Director
may deem a particular species to be a fragile species for the purpose
of a particular permit.
American shad (Clupeidae), bay anchovy (Engraulidae), and blueback
herring (Clupeidae) belong to families that are specifically identified
in the TDD Chapter 11 as examples of species that may be, at the
Director's discretion, excluded from performance standards on the basis
of impingement survival. As another example, threadfin shad (a species
not specifically identified as fragile in today's rule) are prone to
fall die-off when the water temperature reaches 42 degrees. The EPA
does not intend for such naturally occurring mortality to be counted
against a facility's performance in reducing impingement mortality. EPA
is aware of limited success in flow reduction and behavioral deterrent
systems in protecting fragile species. However, there are no
demonstrated and available technologies for industry as a whole to
address fragile species. EPA has long recognized these species as
having low survival rates under the best of conditions, and established
different mechanisms to address these in today's final rule. Today's
BTA for impingement mortality allows the Director to establish site-
specific controls under Sec. 125.94(c)(9) to address fragile species.
EPA notes the change in terminology to ``fragile species''
eliminates the proposed rule burden on States to review and approve
each facility's site-specific species of concern, and eliminates
confusion over any T&E or RIS that may be subject to more stringent
requirements under other Federal, State, and Tribal law. Further, use
of ``fragile species'' instead of ``species of concern'' greatly
increases the transparency of the Agency's impingement mortality
performance standards.
In addition, EPA notes that Sec. 122.21(r)(4)(vi) requires the
applicant to submit information on all threatened and endangered
species, not just those T&E species that are fish or shellfish.
Examples of T&E species that are not fish or shellfish are corals, sea
turtles and marine mammals.
4. Sec. 122.21(r)(5) Cooling Water System Data
The Director uses this data in determining the appropriate
standards that would be applied to the facility. Facilities are able to
use this information, along with the water balance diagram required by
Sec. 122.21(r)(3), to demonstrate the extent to which flow reductions
have already been achieved at the facility level. The applicant must
provide the following information for each cooling water intake
structure they use: A narrative description of the operation of the
cooling water system and its relationship to cooling water intake
structures (including the use of helper towers); the proportion of the
design intake flow that is used in the system including a distribution
of water used for contact cooling, non-contact cooling, and process
uses; a distribution of water reuse (to include cooling water reused as
process water, process water reused for cooling, and the use of gray
water for cooling); description of reductions in total water
withdrawals including cooling water intake flow reductions already
achieved through minimized process water withdrawals; description of
any cooling water that is used in a manufacturing process either before
or after it is used for cooling, including other recycled process water
flows; the proportion of the source waterbody withdrawn (monthly); the
number of days of the year the cooling water system is in operation and
seasonal changes in the operation of the system, if applicable. The
applicant must also submit a description of existing impingement and
entrainment technologies or operational measures and a summary of their
performance, including for example reductions in entrainment due to
intake location and reductions in total water withdrawals and usage,
and efficiencies in energy production for each producing unit that
result in the use of less cooling water, including for example combined
cycle and cogeneration. For example, the applicant may provide
comparative density data for the intake to demonstrate the extent to
which location of the intake has reduced adverse environmental impact.
The additional information at Sec. 122.21(r)(5)(iii) is specific to
those process units that use cooling water for purposes other than
power generation or steam, and where the owner or operator intends to
comply with the BTA for IM through either the use of flow reduction
measures or the reuse of other water for cooling purposes.
5. Sec. 122.21(r)(6) Chosen Method of Compliance With Impingement
Mortality Standard
Today's final rule is flexible in providing seven different
compliance options for meeting impingement mortality requirements.
Under Sec. 122.21(r)(6), the facility must identify its approach to
meet the impingement mortality standards. The facility must identify
the compliance method for the entire facility or, alternatively, the
compliance method for each cooling water intake structure at the
facility. Finding it to be unnecessary because the facility will
already have a set of requirements to meet based on its chosen method
of compliance, EPA has eliminated the proposed requirement for a
separate impingement mortality reduction plan. In addition, monitoring
and studies conducted under the reduction plan is no longer required by
all facilities. Instead today's final rule specifies data collection
requirements only in those instances where the facility must
demonstrate a particular performance outcome as described below.
Facilities choosing to comply with Sec. 125.94(c) by operating a
modified traveling screen (under Sec. 125.94(c)(5)) must submit an
impingement technology performance optimization study under Sec.
122.21(r)(6)(i). The site-specific study must demonstrate the modified
traveling screen as defined at Sec. 125.92 has been optimized to
minimize impingement mortality. The study must include a minimum of two
years of biological data collection. This time frame is consistent with
the requirements at paragraph (r)(4)(iv) of Sec. 122.21 to identify
primary periods of reproduction and peak abundance, as well as Sec.
122.21(r)(4)(v) to provide data representative of the seasonal
activities, both of which would require at least one year worth of data
collection. EPA expects facilities will either use existing biological
data already required under Sec. 122.21(r)(4) to complete their site-
specific impingement studies, modify their biological data collections
under Sec. 122.21(r)(4) to be comprehensive and inclusive, use
existing performance studies, or collect supplemental data necessary to
make their demonstrations. If a facility is using previously collected
data or studies that are more than 10 years old, the facility must
demonstrate the data is still relevant and representative of the
facility. If a facility
[[Page 48365]]
intends to return organisms to a different waterbody from which they
are withdrawn, a request for consideration of this must be made to the
Director under Sec. 122.21(r)(6).
The rule specifies sampling at least monthly during the two year
data collection effort of the impingement technology performance
optimization study, and requires documentation of methods used
including counting of moribund organisms, latent mortality, holding
times, and counting of entrapment. The Director may establish more
frequent collection, as well as specify sampling methods and additional
protocols to be used. If the facility intends to return fish and
shellfish to a different waterbody than the source waterbody that is
used to withdraw cooling water, EPA expects this would be identified as
part of Sec. 122.21(r)(6)(i). While EPA does not expect this situation
occurs very frequently, the permit application information at Sec.
122.21(r)(6)(i) along with (r)(4) would provide the Director the
information needed to determine whether such a return location is
appropriate.\89\ If the site-specific impingement study demonstrates
the modified traveling screen (as defined at Sec. 125.92) has been
optimized to minimize impingement mortality, the Director may then
determine the modified traveling screen is the best technology
available for impingement mortality at the site. The Director would
then include permit conditions that ensure the technology will perform
as demonstrated. If the Director determines that additional data is
required to identify permit operating conditions, the Director has the
authority to establish such requirements under Sec. 125.95(d). Note
that the EPA envisions the study will function to optimize performance,
which is not the same as requiring a study merely demonstrating a
specific numeric level of performance for impingement mortality has
been or can be achieved. For the majority of facilities, EPA expects
annual performance using modified traveling screens will exceed the
Agency's calculated average annual performance standards for
impingement mortality. Several examples of modified traveling screens
in EPA's record show annual performance for impingement mortality that
is superior to the impingement mortality performance standard (e.g.,
lower than 10 percent).
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\89\ For example, the St. Lucie generating facility determined
that this arrangement was not appropriate at their site; see DCN 10-
6515. The Brunswick facility, has a fish return flume that goes to a
tributary rather than the intake canal or the river. This
arrangement places the aquatic organisms away from the intake canal
and in a more gentle water environment to increase the organisms'
survival; see DCN 10-6569.
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Similarly, facilities choosing to comply with Sec. 125.94(c) by
operating a system of technologies (under Sec. 125.94(c)(6)) that will
achieve the impingement mortality standard must submit a impingement
technology performance optimization study under Sec. 122.21(r)(6)(ii).
The site-specific study must provide a description of the technologies,
operational measures, or sampling approaches or any combination of them
to be used to meet the BTA for impingement mortality. The study must
demonstrate that the system of technologies has been optimized to
minimize impingement mortality. EPA notes the ``system'' may consist of
one or more technologies already in place, or may be combined with
newly installed technologies. Further, the study must include a minimum
of two years of biological data collection, as just described.
The EPA is aware that it is possible for a facility to reduce its
rate of impingement, but the same number of impinged fish die. This has
the unintended consequence of increasing the percent impingement
mortality calculated by the facility. EPA does not intend for such
facilities to be penalized for significant reductions in impingement
rates obtained through existing technologies and practices in place.
Therefore, one difference in the required study for the system of
technologies compliance alternative (as compared to the study required
for modified traveling screens) is an understanding that operational
measures, best management practices, intake location, and other
technologies do not always lend themselves to direct impingement
mortality measurements or data collection. Thus the study can include
flow measurements and monitoring the rate of impingement (as opposed to
directly monitoring mortality) as described below.
If the facility chooses to rely on credit for reductions in the
rate of impingement already achieved, the impingement technology
performance optimization study must document the reductions to be used
as credit. The estimated reductions in impingement must be based on a
comparison of the facility to a once-through cooling system with a
traveling screen located on the shoreline of the source waterbody. For
example, a facility with an offshore intake, an intake canal, or an
intake located immediately downstream of a dam in a cold water stream,
could demonstrate the population of fish at the intake is lower in
these areas, resulting in lower rates of impingement. This provision is
intended to allow a facility that conducted or completed a baseline
characterization under the Phase II rule to use that same information
as part of their demonstration under this rule.
As discussed in Section VI, EPA has identified flow reduction as
one of the best ways to reduce both impingement and entrainment.
Today's final rule, as part of the system of technologies compliance
option at Sec. 125.94(c)(6), provides the owner or operator of a
facility the opportunity to demonstrate flow reduction as part of
meeting the IM standards. If the facility chooses flow reduction to
reduce impingement, the study at Sec. 122.21(r)(6)(ii) must include
two years of intake flows measured daily. This flow information plus
the data collected under Sec. 122.21(r)(4)(iv) would be used to
document how the flow reduction results in a reduced rate of
impingement, as well as documenting the extent to which such reductions
are seasonal or intermittent. Many pumps operate at only one speed,
which doesn't allow the facility to adjust its intake flow to changing
conditions. As a potential application of Sec. 125.94(c)(6), EPA is
aware of a manufacturing facility that installed multiple pumps of
different sizes, and the operator only utilized those pumps that were
necessary to obtain the exact amount of cooling water needed. As
another example, variable speed drives offer many facilities an
opportunity to reduce their intake flows by as much as 10 percent.
Variable speed drives are available at all facilities, and EPA expects
variable speed drives will be considered when replacing existing
recirculating pumps; however, EPA also acknowledges variable speed
drives may not be practical in all cases. Nevertheless, EPA expects
variable speed drives will be considered by the Director when
establishing entrainment requirements under today's final rule. EPA
provided an example of how a facility would receive credit for existing
technologies in the NODA (see 77 FR 34322, June 11, 2011). An
additional sample calculation that includes flow reduction is provided
later in this section.
The study must identify each of these contributing components, and
requires the calculation of the impingement mortality reflecting each
component of the system. The impingement technology performance
optimization study must demonstrate the system of technologies has been
optimized to minimize impingement mortality. In addition, the study
must document the percent impingement mortality
[[Page 48366]]
reflecting optimized operation of the total system of technologies,
operational measures, and best management practices at Sec.
122.21(r)(6)(ii)(D). The Director may then determine the system of
technologies is the best technology available for impingement reduction
at the site. The Director would then include permit conditions that
ensure the technology will perform as demonstrated.
6. Sec. 122.21(r)(7) Entrainment Performance Studies
EPA proposed that a facility must submit all previously conducted
performance studies, but has revised this provision in the final rule
to include only entrainment related studies. Impingement performance
studies, where relevant, are already part of the permit application at
Sec. 122.21(r)(6). This avoids imposing a requirement on all
facilities to submit previous impingement studies that may be
unnecessary, and eliminates a burden on the Director to review all such
studies, many of which may no longer be relevant.\90\ Under today's
final rule, the applicant must submit a description of any biological
survival studies conducted at the facility and a summary of any
conclusions or results, including the following: site-specific studies
addressing technology efficacy, through-facility entrainment survival
(distinguished for eggs and larvae), entrainment analyses, or studies
conducted at other locations including a justification as to why the
data are relevant and representative of conditions at the facility.
Because of changes in the waterbody over time, studies older than 10
years must include an explanation of why the data are still relevant
and representative of conditions at the facility. If the data are no
longer relevant and representative, the Director may reject the data.
The Director uses such studies when establishing technology-based
requirements for entrainment. Permit applicants are not required to
conduct new studies simply to fulfill this requirement. This
requirement is rather aimed at obtaining results for relevant studies
that have already been conducted as part of past permit proceedings or
for other purposes even if those studies were not completed or
conducted entirely as planned.
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\90\ For example, the study may be old and no longer
representative, the study may address a pilot study of a technology
no longer under consideration by the facility, or the facility may
have already selected one of the compliance methods for IM based on
pre-approved technologies at Sec. 125.94(c)(1), (2) or (4).
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7. Sec. 122.21(r)(8) Operational Status
The applicant must submit a description of the operational status
of each unit for which a cooling water intake structure provides water
for cooling, including the following: Descriptions of each individual
unit's operating status including age of the unit, capacity utilization
for the previous five years (including any unusual or extended outages
that significantly affect the facility's reporting of flow,
impingement, or other data), and any major upgrades completed in the
past 15 years (e.g., boiler or condenser replacement, changes to fuel
type, a new production line); a description of completed, approved, or
scheduled uprates and NRC (Nuclear Regulatory Commission) relicensing
status for nuclear facilities; a description of plans or schedules for
decommissioning or replacement of units; and a description of current
and future production schedules for manufacturing facilities. The
Director will use such information in determining the BTA for
entrainment as well as when establishing compliance schedules. For
example, where the remaining useful plant life is considerably shorter
than the useful life of an entrainment technology or where a facility
has a planned retirement within the next permit cycle, this information
is useful to support a determination regarding that specific
entrainment technology. This information would also be used under Sec.
125.94(c)(12) to document infrequently used power generating units that
operate with a capacity utilization of less than 8 percent averaged
over a 24-month block contiguous period and that the Director may
therefore determine warrants IM controls less stringent than Sec.
125.94(c)(1) through (c)(7). With respect to entrainment, the BTA for
entrainment is determined by the Director for each site, and energy
reliability is one factor the Director may consider when establishing
entrainment controls (see Sec. 125.98(f)(3)). EPA expects the
information submitted on energy reliability will be considered by the
Director when making a BTA determination for entrainment for low CUR
units.
8. Sec. 122.21(r)(9) Entrainment Characterization Study
Facilities that withdraw greater than 125 mgd AIF must develop a
study that includes a minimum of two years of entrainment data
collection. EPA envisions the facility would extend the data collection
methods and frequency to develop the source water characterization
already required by Sec. 122.21(r)(4) to develop the Entrainment
Characterization Study. The study would include complete documentation
of the data collection period and frequency of entrainment
characterization, and an identification of the organisms sampled to the
lowest taxon possible. The data collection must be representative of
the entrainment at each intake, and the study must document how the
location of the intake in the waterbody and the water column are
accounted for. The study must document the intake flows associated with
the data collection. Consistent with the permit application
requirements requiring biological data collection at Sec. 122.21(r)(4)
and (6), EPA requires at least two years of data to sufficiently
characterize annual, seasonal, and diel variations in entrainment,
including variations related to climate, weather, spawning, feeding,
and water column migration. Also consistent with the permit application
requirements at Sec. 122.21(r)(4) and (6), facilities may use
historical data that are representative of current operation of the
facility and conditions at the site with documentation regarding the
continued relevance of the data. The study must include analysis of the
data to determine total entrainment and entrainment mortality.
Documentation in the study must include the method in which latent
mortality would be identified, and all methods and quality assurance/
quality control procedures for sampling and data analysis would be
described. The sampling and data analysis methods must be appropriate
for a quantitative survey.
This information will help the Director determine the site-specific
BTA for entrainment. For facilities with no entrainment technologies
currently in place, this information characterizes the total potential
for entrainment. The information can also be used to demonstrate that
technologies and other measures already in place, or site-specific
factors such as intake location or design, already reduce entrainment.
For example, abundance data might demonstrate lower comparative
densities that can significantly lower entrainment rates. The
information could also be used by new units under Sec. 125.94(e)(2) to
demonstrate that an alternative technology or combination of
technologies reduce entrainment at that site to a level commensurate
with closed-cycle cooling.
[[Page 48367]]
9. Sec. 122.21(r)(10) Comprehensive Technical Feasibility and Cost
Evaluation Study
The owner or operator of the facility must submit an engineering
study of the technical feasibility and incremental costs of candidate
entrainment control technologies. The study must include an evaluation
of technical feasibility of closed-cycle cooling and fine-mesh screens
with a mesh size of 2 mm or smaller, reuse of water or alternate
sources of cooling water, and any other entrainment reduction
technologies identified by the applicant or requested by the Director.
This study must include a description of all technologies and
operational measures considered (which could include alternative
designs of closed-cycle recirculating systems such as natural draft
cooling towers, hybrid designs, compact or multi-cell arrangements, or
the conversion of helper towers to a fully recirculating system); and
documentation of factors that make a candidate technology impractical
or infeasible for further evaluation. For example, a discussion of land
availability might include an evaluation of adjacent land, and acres
potentially available because of generating unit retirements,
production unit retirements, other buildings and equipment retirements,
ponds, coal piles, rail yards, transmission yards, and parking lots;
decommissioning of existing units; repurposing of existing land uses;
documentation that insufficient acres are available on-site; and
evidence of the feasibility of the purchase or other acquisition of
property adjacent to the facility.
For the analysis of water reuse and use of alternate sources of
cooling water, the owner or operator must examine the available
alternatives for reuse of effluent from within the facility or from
other dischargers in the vicinity. The volume of water available need
not be for the full intake flow; reuse of water could contribute to a
partial reduction in flow at the facility. Additionally, if the
facility were to retrofit to a closed-cycle system, the significant
reduction in flow may make nearby alternative sources more feasible.
This analysis should include an estimate of the cost to build any new
infrastructure (e.g., piping, pump houses) and the ongoing operational
costs (e.g., pump costs) for the Director's consideration.
The final rule requires that the cost information be presented as
both the facility's compliance costs and the social costs, and in net
present value (NPV) terms and the corresponding annual value. Social
costs are the costs estimated from the viewpoint of society, rather
than individual stakeholders. Social cost represents the total burden
imposed on the economy; it is the sum of all opportunity costs
incurred. See Chapter 8 of EPA's 2010 Guidelines for Preparing Economic
Analyses (DCN 10-3258). Some adjustments to facility compliance costs
to produce social costs cause them to be higher than compliance costs,
while other cause social costs to be lower. Although a facility makes
investment decisions by taking tax consequences into account (after-tax
costs), the favorable tax treatment of investments is viewed as a
transfer and not a real resource cost, thus pre-tax costs are used in
social cost analysis. From society's viewpoint, costs in the future
must be amortized and discounted to net present value using a social
discount rate, rather than a market cost of capital as reflected in
market interest rates. The Office of Management and Budget (OMB)
Circular A-4 (DCN 10-3266) instructs agencies to use both 3 percent and
7 percent discount rates. Certain administrative costs are not borne by
a facility, but rather by the Director, and are social costs.
Compliance costs include the facility's administrative costs, including
costs of permit application, while the social cost adjustment includes
the Director's administrative costs. EPA has estimated the Directors'
administrative costs in the ICR for the final rule, and describes the
methodology for estimating these costs in detail in the EA. Facilities
may adopt a similar approach to including Director's administrative
costs in their social cost estimates. In addition, this component is
not expected to be large or to vary significantly across technology
options considered.
From a facility's viewpoint, downtime costs include lost net
revenue, while from society's viewpoint, if another facility is
dispatched or inventory of manufactured goods can be sold, the only
social cost of downtime is any increase in marginal costs of production
at other facilities dispatched or the cost of holding inventory. Unless
a facility can demonstrate that its costs of compliance will result in
lower overall supply in the markets in which its products are sold, and
that the effect of the lowered supply is an increase in market price
and lower quantity of product sold, the facility should not make a
social cost adjustment to reflect these larger market impacts.
In addition to the required social costs, the owner or operator may
choose to provide facility level compliance costs; however, such costs
must be provided and discussed separately from social costs. The cost
evaluation component of this study must include engineering cost
estimates of all technologies considered above and also discuss and
provide documentation of any outages, downtime, energy penalties or
other effects on revenue. The cost evaluation should be based on least-
cost approaches to implementing each candidate technology while meeting
all regulatory and operational requirements of the facility.
Depreciation schedules, interest rates, further consideration of
remaining useful life of the facility as discussed in Sec.
122.21(r)(8), and any related assumptions must be identified. The owner
or operator of the facility must obtain peer review of the
Comprehensive Technical Feasibility and Cost Evaluation Study, as
described in Section 12.
10. Sec. 122.21(r)(11) Benefits Valuation Study
The owner or operator of the facility must submit a detailed
discussion of the benefits of the candidate entrainment reduction
technologies evaluated in Sec. 122.21(r)(10) and using data in the
Entrainment Characterization Study in Sec. 122.21(r)(9). Each category
of benefits should be described narratively, and when possible benefits
should be quantified in physical or biological units and monetized
using appropriate economic valuation methods. This includes incremental
changes in the impingement mortality and entrainment of individual fish
and shellfish for all exposed life stages, estimation of changes in
stock and harvest levels of commercial and recreational species, and
description of any monetization. This may include monetization using
market values, market proxies (e.g., models based on travel costs or
other methodologies), benefits transfer and stated preference methods.
Benefits that cannot be monetized should be quantified where feasible
and discussed qualitatively where not. The study must identify
increased or decreased thermal discharges, and must evaluate the
potential changes in facility capacity, operations, and reliability due
to relaxed permitting constraints related to thermal discharges. The
study must also include discussion of recent mitigation efforts already
completed and how these have affected fish abundance and ecosystem
viability in the intake structure's area of influence. Finally, the
study must identify other benefits to the environment and the
community, including improvements for mammals, birds, and other
organisms and aquatic habitats. The owner or operator of the facility
must obtain peer review of the benefits evaluation study, as described
in Section 12. EPA expects peer
[[Page 48368]]
reviewers to have appropriate qualifications (e.g., fisheries
biologist, economist) for the subject matter. The Director may consult
with EPA and Federal, State and Tribal fish and wildlife management
agencies with responsibility for fish and wildlife potentially affected
by the cooling water intake structure(s) to determine which peer review
comments must be addressed by the final study. The dollar values in the
social benefits analysis should be based on the principle of
willingness-to-pay (WTP), which captures monetary benefits by measuring
what individuals are willing to forgo in order to enjoy a particular
benefit. While the Director must consider benefit and cost information,
the Director will also determine if this information is of sufficient
rigor to make a decision on entrainment controls on the basis of this
information. For instance, the Director may decide not to rely on
benefit-cost information in establishing the entrainment controls when
the benefits analysis includes only a qualitative discussion of nonuse
benefits. Willingness-to-pay for nonuse benefits can be measured using
benefits transfer or a stated preference survey. However, the rule does
not require the Director to require a facility owner or operator to
conduct or submit a stated preference survey to assess benefits.
11. Sec. 122.21(r)(12) Non-Water Quality Environmental and Other
Impacts Assessment
The owner or operator of the facility must submit a detailed
discussion of the changes in non-water quality environmental and other
factors attributed to technologies or operational measures, or both,
considered. These changes may include, for example, increases or
decreases in the following: Energy consumption; air pollutant emissions
and their health and environmental impacts; noise; safety concerns,
such as the potential for plumes, icing, and availability of emergency
cooling water; grid reliability, including an estimate of changes to
facility capacity, operations, and reliability due to cooling water
availability; consumptive water use (including effects of surface water
evaporation of thermal discharges); and facility reliability, such as
production of steam and impacts to production based on process unit
heating or cooling. The owner or operator of the facility must provide
for peer review of the Non-Water Quality Environmental and Other
Impacts Assessment as described in the following section.
12. Sec. 122.21(r)(13) Peer Review
The owner or operator of the facility must provide for peer review
of the permit application studies required at Sec. 122.21(r)(10)
Comprehensive Technical Feasibility and Cost Evaluation Study, Sec.
122.21(r)(11) Benefits Valuation Study, and Sec. 122.21(r)(12) Non-
Water Quality and Other Impacts Assessment. While facilities that
withdraw more than 125 mgd AIF must conduct these studies and therefore
must provide for peer review, facilities that withdraw equal to or less
than 125 mgd AIF may have study requirements including peer review as
determined by the Director. In today's final rule, EPA did not adopt
separate peer review requirements for the Entrainment Characterization
Study at Sec. 122.21(r)(9), because this data would be included in the
Comprehensive Technical Feasibility and Cost Evaluation Study, Benefits
Valuation Study, and Non-Water Quality and Other Impacts Assessment,
and these studies are already subject to peer review. For these
reasons, EPA reduced the burden in the final rule by eliminating the
peer review requirement for entrainment characterization.
EPA recognized at proposal that in many cases it is more efficient
for permit applicants to combine the required studies into one document
and have them reviewed holistically by a single set of peer reviewers.
Such an approach is allowed by the final rule, as long as the peer
review panel has the background appropriate to conduct a complete and
combined review and the Director approves.
The Director may consult with Federal, State and Tribal fish and
wildlife management agencies with responsibility for fish and wildlife
potentially affected by the cooling water intake structure(s). Further,
the Director may require the owner or operator of the facility to
include additional peer reviewers of the studies. EPA expects peer
reviewers to have appropriate qualifications (e.g., in the fields of
biology, engineering) for the subject matter. An explanation for any
significant reviewer comments not accepted must be included in the
final study submission. Additional guidance on conducting peer review
is available on EPA's Peer Review Program Web site at www.epa.gov/peerreview.
13. Sec. 122.21(r)(14) New Units
New units at existing facilities must identify the compliance
method for the new unit under the permit application requirements at
Sec. 122.21(r)(14). Where the facility complies with BTA standards for
entrainment at Sec. 125.94(e)(1) by reducing its intake flows
commensurate with that of a closed-cycle recirculating system (as
defined at Sec. 125.92(c)(1)), the BTA standards for impingement
mortality will have been met by Sec. 125.94(c)(1). To comply with the
alternative at Sec. 125.94(e)(2), there must be a demonstration that
entrainment reductions equivalent to 90 percent or greater of the
reductions that could be achieved through compliance with Sec.
125.94(e)(1).\91\ In this case, permit application requirement Sec.
122.21(r)(14) requires this demonstration to include the Entrainment
Characterization Study at Sec. 122.21(r)(9). The Director may
determine additional data and information, including data collection,
is necessary to make the demonstration.
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\91\ Note that a new unit may construct a new intake structure
or utilize capacity from an existing intake structure. For the
former, the requirements of Sec. 125.94(e)(1) are simple to
conceptualize and apply. But for the latter, EPA clarifies that the
new unit requirements only apply to that portion of the flow that is
serving the new unit. For a new unit using an existing intake
structure that chooses to comply using Sec. 125.94(e)(1),
demonstrating that the new unit achieves the required reduction in
flow should be a relatively simple exercise in identifying intake
flows and the distribution of cooling water from the intake
structure. For a new unit using an existing intake structure that
chooses to comply using Sec. 125.94(e)(2), the facility would
demonstrate that it has reduced entrainment for that portion of the
intake flow serving the new unit by 90 percent; the facility would
not be required to reduce entrainment for the flow of the entire
intake structure by 90 percent, unless the Director makes such a
site-specific determination for entrainment at the existing units as
well.
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D. When are permit application studies due?
The owner or operator of a facility applying for reissuance of a
permit must submit the information required at Sec. 122.21(r) to the
Director no later than 180 days before the current permit expires.
Those facilities that were subject to the section 316(b) Phase II rule
from February 16, 2004 until suspension of that rule on July 9, 2007
were already collecting some information required at Sec. 122.21(r).
EPA has structured this rule to take advantage of those data and
expects facilities to use them when they satisfy requirements for
permit applications.
In some cases, required permit application information might have
been collected, but reports might not have been generated or finalized
prior to the rule suspension in 2007. Further, facilities not subject
to the Phase II rule (e.g., existing power plants below 50 mgd DIF and
all existing manufacturers) might not have collected this information
or might not have collected information to identify permit operating
[[Page 48369]]
conditions. In those cases, facilities would have to collect additional
data in order to have two years of biological data collection. EPA
expects associated studies and reports will take several additional
months to complete. For this reason, EPA has established a provision
for permit application submittal for a permit expiring prior to July
14, 2018, allowing the Director flexibility to delay application
requirements based on a showing by the owner or operator that it could
not develop the information by the time required for submission of the
permit application. The Director would then establish a schedule for
submission of the delayed permit application requirements. EPA notes
that the Director has the discretion to require additional studies,
data collection, or an on-site inspection as part of the permit
process.
Facilities whose permit expires after July 14, 2018 would submit
all required materials in Sec. 122.21(r) with their permit renewal
application.
New units at existing facilities must submit the information
required at Sec. 122.21(r) to the Director no later than 180 days
before commencing operation of the new unit. Because these units are
being constructed at a facility that is already operating, the facility
will have already submitted many of the permit application materials.
The addition of a new unit would require an update of or supplement to
permit application materials that have already been submitted. New
units take significant time and resources to plan, design, and
construct; therefore the final rule does not have a provision to waive
permit application requirements based on a showing by the owner or
operator that it could not develop the information by the time required
for submission of the permit application. For permit renewals
subsequent to the first permit issued under today's rule, the new unit
would be included in the assessment of the entire facility and would no
longer require unique permit application submissions. As discussed
previously, the owner or operator is encouraged to submit applications
well in advance of the 180 day requirement to avoid delay.
EPA is aware that some intake structures withdraw from a manmade
lake or reservoir that is stocked and managed by a State or Federal
natural resources agency. In some cases, the biological
characterization of the source water is heavily influenced by the
actions of the natural resources agency. Further, the results of
biological data collection and studies may be confounded by such
actions. Today's final rule at Sec. 125.95(a)(3) gives the Director
discretion to waive some or all of the permit application requirements
of Sec. 122.21(r) in such circumstances.
In permit terms subsequent to the first permit issued under the
final rule, the facility will re-submit the Sec. 122.21(r) permit
application studies, while the rule still includes two years of
biological data collection for some facilities. In this manner, the
biological characterization over time would be routinely evaluated,
i.e., every 5 years under a standard permit cycle. To reduce the burden
of such data collection, however, the final rule provides that the
owner or operator of a facility may submit a request to the Director to
reduce the information required. See 40 CFR 125.95(c). In most cases,
EPA anticipates the facility would make any such request prior to
conducting its two years of biological data collection. Therefore the
request for reduced information requirements must be submitted to the
Director at least two years and six months before the expiration of the
facility's NPDES permit. The Director may approve such a request if
conditions at the facility and in the waterbody remain substantially
unchanged since the previous permit application.\92\ EPA expects the
Director would assess the relevant previously submitted information and
determine whether it remains representative of current source water,
intake structure, cooling water system, and operating conditions.
Accordingly, the Director may accept or reject any part of the request.
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\92\ The presence of any habitat designated as critical, or
species listed as threatened or endangered after issuance of the
current permit (whose range of habitat or designated critical habit
includes waters where a facility intake is located) constitutes
potential for a substantial change that must be addressed by the
owner/operator in subsequent permit applications, unless the
facility received an exemption pursuant to 16 U.S.C. 1536(o) or a
permit pursuant to 16 U.S.C. 1539(a) or there is no reasonable
expectation of take.
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E. How will the director determine the best technology available for
minimizing adverse environmental impacts?
1. Review and Approval of Permit Application Materials
Under today's rule, the Director will review all materials
submitted by an existing facility with its permit application to
determine appropriate NPDES permit conditions and requirements to
minimize impingement mortality and entrainment. As stated at 40 CFR
125.98(a), the Director shall not issue a permit before receiving a
permit application form and any supplemental information which are
completed to his or her satisfaction (see existing Permit Application
and Special NPDES Program Requirements at 40 CFR 122.21(e)).
Facilities with a design intake flow at or below 2 mgd will
continue to have permit conditions set on a case-by-case, best
professional judgment basis under 40 CFR 125.90(b) and 401.14. For such
facilities, however, the Director may choose to apply some portions of
the permit application conditions in today's rule to aid in the BPJ
determination.
The Director is encouraged to expeditiously provide any comments on
submitted materials so the facility can make responsive modifications
to its information gathering activities. For permit applications
subsequent to the first permit issued under today's rule, the Director
could indicate whether reduced or different information must be
submitted with the permit application. More specific responsibilities
are described below:
a. If the Director has made a BTA determination for entrainment
before the effective date of the rule, and substantially the same
information was already submitted and considered by the Director in
making that determination, under Sec. 125.98(g) the Director may
proceed with the Determination of BTA without requiring the owner to
submit the information required in Sec. 122.21(r).
To clarify further, EPA has included a ``transition'' provision at
Sec. 125.98(g) of today's rule that makes it clear that for any
facility that has submitted a permit application before the effective
date of the regulation, the Director may select the best approach to
development and implementation of the next permit. These provisions are
intended to avoid any unnecessary delay in recently submitted permit
applications or draft permits. EPA expects that facilities will
continue with any data collection requirements, study requirements, and
schedules in recently issued permits.
b. If the Director establishes a compliance schedule under Sec.
125.94, the Director will establish a schedule that sets requirements
as soon as practicable. In establishing the schedule, the Director is
encouraged to consider the extent to which those technologies proposed
to be implemented to meet the requirements of Sec. 125.94(d) will be
used, or could otherwise affect a facility's choice of technology, to
meet the requirements of Sec. 125.94(c). Impacts of thermal
discharges, along with other stressors, might be a relevant
consideration when assessing benefits of technologies to reduce impacts
of cooling water intakes or discharges. The Director is also encouraged
to consider energy reliability, transmission capacity, and
[[Page 48370]]
grid requirements when establishing a schedule for electric power
generating facilities. The Director may confer with local and regional
electric power agencies and state utility regulators when establishing
a schedule for electric power generating facilities (see DCN 10-6860
for information on the approach taken by California). The Director may
determine that extenuating circumstances (e.g., lengthy scheduled
outages, future production schedules) warrant establishing a different
compliance date for any manufacturing facility.
c. The Director will review the permit application materials and
studies submitted under Sec. 122.21(r) and determine which entrainment
controls are appropriate. Factors that must be considered and factors
that may be considered in making the determination are provided at
Sec. 125.98. The Director must issue a written explanation for the BTA
determination and must make this determination, and any other
information submitted by third parties, available with the permit for
public review. This determination is expected to be issued as part of
the permit's statement of basis under 40 CFR 124.7.
2. Role of Social Cost-Benefit Analysis in Permit Determinations
In deciding what technology to require a permittee to install to
address entrainment, the Director may undertake an evaluation of social
costs and benefits of implementing such requirements. This analysis
will be based on the information submitted by the applicant,
supplemented by any information submitted by third parties, and
additional information as determined appropriate by the Director. EPA
recognizes the resource limitations faced by permitting authorities and
does not generally expect that the Director would develop additional
information on which to base the evaluation of social benefits and
costs, although the Director may opt to do so. This analysis should
evaluate benefits and costs from the perspective of society as a whole,
rather than costs and benefits accruing to limited parties (e.g., very
local populations or the permittee, which presents a limited set of
information to the Director).
It is also important to note that the stated preference survey
conducted by EPA which was discussed in the June 12, 2012 Notice of
Data Availability (77 FR 34927) was designed to estimate respondents'
willingness to pay for changes in the health of fish populations and
aquatic ecosystems and be statistically representative at large
(regional and national) scales; the results were not designed to be
statistically representative at the facility level for the assessment
of benefits for individual site-level permitting decisions. Today's
final rule does not require the Director to require a facility owner or
operator to conduct or submit a stated preference survey to assess
benefits. Further, the rule does not limit the Director's discretion to
consider non-water quality impacts in determining whether further
entrainment measures are justified.
A number of cost elements should be accounted for in assessing the
social cost of entrainment technology implementation. These are
summarized below.
a. Technology Installation Cost
These peer-reviewed engineering cost estimates of the physical
construction of candidate entrainment technologies at the facility are
required. These costs would be provided by the applicant under Sec.
122.21(r)(10).
b. Installation Downtime Cost
Installation of closed-cycle cooling systems will often require
facilities to take additional downtime beyond ordinary annual
maintenance downtime. An estimate of downtime cost to the facility is
required under Sec. 122.21(r)(10). EPA expects a facility will
document that portion of downtime that is incremental to any downtime
the facility already incurs due to, for example, routine maintenance
outages, overhauls, refueling, and periodic replacement of equipment
that is at the end of its useful life. Downtime costs to the facility
include the value of lost production (e.g., electricity) minus any
variable cost savings, as well as any other costs to the facility
associated with downtime (shutdown and startup routines, special
maintenance protocols, etc.) minus any savings associated with
downtime. If they are considered in the social costs analysis, downtime
costs must be adjusted to reflect production made up by other
facilities or firms, because these temper the real resource costs from
society's viewpoint. The cost of downtime is determined on a different
basis for social cost. Specifically, the cost of downtime to society is
the cost incurred for other facilities and generating units to make up
the electricity or manufactured goods that would have otherwise been
generated by the facility minus the cost that would have otherwise been
incurred by the facility incurring downtime. This difference in cost
reflects the additional cost, if any, that society must pay to generate
the replacement goods, and may differ substantially from the cost of
downtime to the facility.
c. Energy Penalty Cost
Operation of closed-cycle cooling systems may impose an energy
penalty. EPA is using energy penalty to mean only the opportunity costs
associated with reduced power production due to derating (turbine
backpressure). Energy penalty does not include the costs to operate
pumps and fans associated with closed-cycle cooling, which are
operation and maintenance costs (and covered below). Under well-
established principles in benefit-cost analysis, the cost of the energy
penalty to the facility is not the opportunity cost to society.
Instead, the cost to society is the cost of generating the electricity,
whether incurred by the regulated facility or another facility, that is
no longer available for consumption because of the energy penalty. This
cost may be incurred by the facility, if it can increase the energy
input to, and output from, the generating unit to generate the
electricity that is otherwise no longer available for consumption, or
by another generating unit if the regulated unit cannot make up the
electricity. In either case, the social cost of the energy penalty is
the cost of generating the electricity that would otherwise be
available for consumption except for the energy penalty. Again, an
assessment of these costs would be determined under the Sec.
122.21(r)(10) demonstration.
d. Operation and Maintenance Costs for the Entrainment Technology
Equipment
The cost of energy to operate the entrainment technology for
electric generators should appear in the operation and maintenance
costs, along with other labor and materials costs. In the same way as
described above, the social cost of the energy required to operate
entrainment technology is the cost for generating this electricity, as
it is otherwise no longer available for end-use consumption. This cost
could be incurred by the regulated facility, if it has sufficient
capacity to make up the loss, or by another facility, if the regulated
facility is not capable of generating the electricity that is no longer
available for end-use consumption.
e. Other Administrative Expenses
This includes additional permitting or reporting expenses, or both.
For social costs, the estimate should include the costs to the facility
and those expected to be incurred by the Director.
EPA has estimated the Directors' administrative costs in the ICR
for the final rule, as explained in the EA, and
[[Page 48371]]
facilities may adopt a similar approach to estimating these costs at
the permit level. For assessing social cost, the cost elements outlined
above would typically be accounted for on a real cost basis--that is,
pre-tax and without adjusting for future inflation. Costs are tallied
over an appropriate time frame, which will typically be the expected
useful life of the technology installation or the remaining life of the
facility, if less. Costs should be calculated as both net present value
and annualized values, using an appropriate social discount rate. The
applicant should document the basis for the discount rate chosen, and
its methodology and calculations.
f. Benefits
In assessing the benefits of entrainment technology installation,
the Director would assess the value to society from the reductions in
impingement mortality and entrainment that would result from
installation of a closed-cycle cooling system, fine mesh screens, or
other entrainment technologies. All benefits, including monetized,
quantified and qualitative benefits, should be considered in this
assessment. The benefits assessment would typically look at a range of
potential benefit categories, including increased harvest for
commercial fisheries, increased use values for recreational fisheries,
and nonuse values (existence and bequest values). The latter may be
difficult to quantify or monetize. If appropriate data are available
from benefits transfer or conducting stated preference studies or other
sources that can be applied to the site being evaluated, these should
be used to monetize nonuse values. Otherwise, nonuse values should be
evaluated quantitatively and/or qualitatively. Quantitative analysis,
even without monetization, can be quite useful in evaluating nonuse
benefits. For example, quantifying impacts to forage and threatened and
endangered species, and other indirect impacts on the aquatic
environment, might allow the Director to derive a much more complete
understanding of benefits as compared to a qualitative narrative, even
if not directly comparable to monetary costs.
Quantifying and valuing the benefit categories listed above
involves significant challenges, as described in the BA. For example,
assessing the productivity and value of commercial fisheries involves
estimating the expected increases in commercial yield of economically
valued species over time as a result of reduced impingement mortality
and entrainment, and valuing these at market prices minus any
incremental production costs associated with the incremental catch.
Similarly, assessing recreational use benefits involves estimating the
improvements in recreational fishing opportunities resulting from
reduced impingement mortality and entrainment, and assigning a value to
these improvements. The value assignment is based on the estimated
population profile--in particular, number and proximity to affected
water resources--of recreational users, the availability of alternative
competing water resources for recreational usage, and the resulting
estimated change in demand for use and value of the affected water
resources based on reduced impingement mortality and entrainment and
increased recreational fishing performance. EPA acknowledges this could
be difficult to do even on a site-specific basis.
Nonuse benefits, which encompass existence and bequest values,
include impacts in such areas as population resilience and support,
nutrient cycling, natural species assemblages, and ecosystem health and
integrity. Nonuse values include improving the survival probability of
a threatened or endangered species if present in the vicinity of the
facility. Benefits might also need to be assessed beyond the vicinity
of the facility's intake if migratory species are affected by the
intake. Residual impacts of thermal discharges might also be
appropriate to consider in the social benefits calculation.
In much the same way as described for the social cost assessment,
social benefits are tallied yearly over the expected performance life
of the compliance technology. This tallying should account for the
``phase-in'' of benefits (e.g., benefits may build up over time as the
impingement mortality and entrainment reductions affect commercial
fisheries productivity). Benefits are computed on a present value basis
and annualized using an appropriate discount rate as described above.
The same discount rate should be used for benefits and costs. Often, it
is appropriate to calculate benefits and costs using more than one
discount rate. For example, for regulatory impact analysis, OMB
recommends that Federal agencies use both a 3 percent and a 7 percent
rate. However, comparisons between specific benefit and cost numbers
should always involve values computed using the same rate.
The resulting estimates of social cost and benefits must be
considered in determinations on whether to require a permittee to
install entrainment technology and the specific level of entrainment
technology to be installed. The Director may reject otherwise available
technologies as the BTA requirements for entrainment controls if the
social costs of compliance are not justified by the social benefits, or
if there are other adverse impacts that cannot be mitigated that the
Director deems to be unacceptable. If all technologies considered have
social costs not justified by the social benefits, or have unacceptable
adverse impacts that cannot be mitigated, the Director may determine
that no additional control requirements are necessary beyond what the
facility is already doing. The Director should document the basis for
such a determination and include it in the public notice for the draft
permit.
3. Streamlined Process
The process for complying with the impingement mortality standards
is expected to be highly streamlined. As shown in Exhibit VIII-1, EPA
expects more than 99 percent of facilities will comply by one of the
six compliance options that do not require continual biological
compliance monitoring (one of the three compliance alternatives based
on pre-approved technologies or one of the three streamlined compliance
alternatives). If a facility chooses to comply by operating a modified
traveling screen, the Director will review the impingement technology
performance optimization study, including the identification of
species, duration and structure of the study, and any monitoring
requirements.
4. De Minimus Provision
The Director may, based on a review of data submitted under Sec.
122.21(r), conclude that the documented rate of impingement at the
cooling water intake structures is so low that no additional controls
are warranted. As described in section I.A.H, low flow facilities may
in particular be candidates for such consideration, although the
authority of the Director is not limited to low flow facilities. The
Director may want to consider facility withdrawal rates in relation to
the mean annual flow of the river and possible co-location with other
CWISs when making a de minimis determination. Notice of this
determination would be included in the draft permit made available for
public comment, and the Director's response to any comment on this
determination must be included in the record for the final permit. EPA
considers low rates of impingement to be measured as an organism or
age-one equivalent count, and not as the effect of impingement on
[[Page 48372]]
fish populations. The Director may require data collection to
demonstrate support for a de minimis level of impingement. In addition,
EPA does not expect that a de minimis exemption would apply to
facilities with no technology present other than trash racks, a
technology that nearly all facilities employ. In making a determination
that no additional controls are warranted, the Director may wish to
consider factors such as whether the waters are subject to a TMDL for
an aquatic life use, the waters are not attaining a designated use, and
there would be more than minor detrimental effects on threatened or
endangered species or critical habitat. The Director will still
establish proper operation and maintenance conditions in the permit
whenever making a de minimis finding that no additional controls are
warranted. EPA notes that the de minimis provision for impingement does
not necessarily mean a facility has a de minimis level of entrainment.
The life stages affected by impingement are different than those
affected by entrainment, and low counts of impingeable life stages do
not always mean the counts of entrained organism are similarly low.
Since the entrainment requirements are already determined by the
Director for each site, EPA concluded that specific regulatory language
for de minimis entrainment was unnecessary.
5. Low Capacity Utilization Units
The Director may consider less stringent controls for intakes
dedicated to low capacity utilization rate (CUR) power generating
units. If an existing facility has a cooling water intake structure
used exclusively for one or more existing electric generating units,
each with an annual average capacity utilization rating of less than 8
percent averaged over a 24-month block contiguous period, the owner or
operator may request that the Director establish BTA standards for
impingement mortality for that cooling water intake structure which are
less stringent than Sec. 125.94(c)(1) to (c)(7). When determining the
permit's IM requirements associated with the low CUR unit, the Director
may consider, after conferring with any appropriate state co-regulators
(such as public utility commissioners) and with regional transmission
organizations, independent system operators or other planning
authorities, the significance of the unit's operation to the overall
reliability of electric power in the area.
In addition, in determining the IM requirements associated with a
low CUR unit, the Director should consider any seasonal factors for
affected species that might justify seasonal limits on the unit's
operation, for example any increased impacts resulting from the unit's
operation during spawning runs. Also, when considering the presence and
potential effects to threatened and endangered species, the Director
should consider whether the life stages present at the location are at
risk of being impinged or entrained at the low CUR unit's cooling water
intake.
In the event that the Director determines less stringent controls
for intakes dedicated to low capacity utilization power generating
units are appropriate, they should consider, at a minimum, the
following in establishing controls:
Strategies for minimizing water withdrawal during stand by periods
of operation, startup/shutdown, and on-line periods of operation;
The effectiveness of installing variable speed pump drives to
reduce water withdrawals during all periods of operation, particularly
during stand-by periods of operation; and
The effectiveness of installing alternative equipment (e.g.
behavioral deterrents) to minimize impingement mortality.
The owner or operator would demonstrate whether they have an intake
only serving one or more low capacity utilization power generating
units in permit application requirements at Sec. 122.21(r)(3) and (8).
Under Sec. 122.21(r)(6), the owner or operator would indicate a
request that the Director establish alternative BTA standards that are
less stringent than Sec. 125.94(c)(1) through (7). EPA recognizes the
contribution of peaking units in serving peak electricity demands, and
maintaining a reliable electricity grid. However, if peaking units are
in standby mode for long periods relative to periods when they are
generating electricity, the result is a capacity utilization of the
cooling water intake that is greater than the capacity utilization of
the generator. Significant periods of standby could contribute to a
greater impact on aquatic life. While the 8 percent capacity
utilization is an industry standard that distinguishes those units
making the greatest contribution to a smoothly functioning electricity
grid, a Director may still determine that the impacts to aquatic life
are significant enough to deny a request that BTA at that intake should
be less stringent than Sec. 125.94(c)(1) to (c)(7). EPA anticipates
the Director will have the information necessary to determine BTA in
such circumstances based on the permit application requirements,
including but not limited to an identification of the number of days
the cooling water system is in operation, flow on those days, and
seasonal changes in the operation of the system under Sec.
122.21(r)(5) and the biological information under Sec. 122.21(r)(4).
As discussed previously, the Director will determine the BTA for
entrainment for low CUR units on a site-specific basis. EPA expects
that many of the same factors discussed above--including the
significance of the unit's operation to the overall reliability of
electric power in the area, the diversity of fuels available for the
unit, and the impact of the costs of any potential entrainment
requirements on the unit's cooling water intake structure on overall
reliability of electric power in the area--will be relevant in making
site-specific BTA entrainment determinations for low CUR units. The
Director may consider the factors at Sec. 125.98(f)(3) when making
these determinations for low CUR units, which includes grid
reliability, among other factors.
6. Monitoring
The Director will review any impingement mortality and entrainment
monitoring reports submitted by the facility to ensure ongoing
compliance. EPA is shifting toward an electronic discharge monitoring
report system, and many of the impingement mortality and entrainment
standards can be incorporated into the discharge monitoring report
itself, rather than requiring a separate report. Except for facilities
choosing alternatives Sec. 125.94(c)(7), detailed biological data
collection would only be included as part of the facility's permit
application submission and not for compliance purposes. The Director
has the discretion to request additional information, including
inspection of the facility, at Sec. 125.95(d) (i.e., permit
application and supporting information requirements) and Sec.
125.96(c) (i.e., additional monitoring requirements).
7. Nuclear Units
The rule includes a provision that permits the owner of a nuclear
facility to demonstrate to the Director that compliance with the rule
would result in a conflict with safety requirements for their facility.
See Sec. 125.94(f). EPA anticipates that this provision would be
implemented as follows. Initially, the Director will draft a permit and
will share the draft permit with the owner or operator of the nuclear
facility. Upon reviewing the draft permit, the owner or operator will
determine whether in their view a conflict with a safety requirement
established by the Nuclear
[[Page 48373]]
Regulatory Commission, the Department of Energy or the Naval Nuclear
Propulsion Program exists. If a conflict exists, the owner or operator
should communicate the conflict to the NRC, Department or Program and
the Director. In all cases, whether a conflict exists or not, the
Director should notify the NRC, Department or Program and the owner or
operator of the facility that he or she wishes to informally confer
regarding the permit. Such interactions should be scheduled, conducted
and documented. Where a conflict is identified, the Director would make
a site-specific BTA determination.
F. What are example permit conditions and compliance monitoring for
impingement mortality?
As previously discussed, the owner or operator must comply with BTA
standards as soon as practicable on a schedule of requirements
established by the Director. EPA did not specify dates by which the BTA
standards for impingement mortality must be met because the specific
method of compliance with the BTA standards for impingement mortality
is tied to the determination of BTA requirements for entrainment.
Further discussion of this alignment of compliance deadlines is
provided in Section A. Today's final rule provides for several methods
of compliance with the BTA for impingement mortality. This section
discusses each of the methods for compliance, how they follow from the
permit application requirements at Sec. 122.21(r), and any minimum
monitoring and reporting requirements associated with each method.
1. Closed-Cycle Recirculating System
In this method of compliance, an existing facility must operate a
closed-cycle recirculating system as defined at Sec. 125.92(c). The
facility would indicate the choice to use this compliance method under
Sec. 122.21(r)(6) in its permit application. As specified in Sec.
122.21(r)(1), the facility would need to submit Sec. 122.21(r)(9)
through (13), if it exceeds 125 mgd AIF and these requirements are not
waived by the Director. The information still required at Sec.
122.21(r)(2) to (8) is considerably less burdensome. The monitoring
must be representative of normal operating conditions, and must include
measuring cooling water withdrawals, make-up water, and blowdown flows.
The facility must monitor actual intake flows at a minimum frequency of
daily, or may monitor the representative cycles of concentration at a
minimum frequency of daily. These monitoring data would be used by the
Director to determine that make-up and blowdown flows have been
minimized. The owner or operator would submit these data with their
existing DMR or equivalent state report. Facilities complying using
closed-cycle cooling are not subject to biological compliance
monitoring unless otherwise specified by the Director (see Sec.
125.96(c)).
2. 0.5 Feet per Second Through-Screen Design Velocity
In this method of compliance, the facility must operate a cooling
water intake structure that has a maximum design through-screen intake
velocity of 0.5 feet per second. The facility must submit information
under Sec. 122.21(r) to the Director that demonstrates that the
maximum design intake velocity as water passes through the structural
components of a screen measured perpendicular to the screen mesh could
not exceed 0.5 feet per second. The maximum velocity must be achieved
under all conditions, including during minimum ambient source water
surface elevations (based on BPJ using hydrological data) and during
periods of maximum head loss across the screens or other devices during
normal operation of the intake structure.
EPA notes a cylindrical wedgewire screen, in general, is designed
for 0.5 feet per second. In Phase II, EPA pre-approved wedgewire
screens under specific operational conditions. Today's final rule
simplifies the demonstration requirements for a facility employing
cylindrical wedgewire screens to that of demonstrating the maximum
design through-screen velocity is 0.5 feet per second. As another
example, a facility may have pumping and piping constrictions that
physically limit the design intake velocity to less than 0.5 feet per
second. The Director may choose to establish permit conditions that
address the physical limitations of the intake, such as requiring a
pump be removed from service, or that only one of two (redundant) pumps
may operate at any time. Facilities choosing to comply under this
section do not have monitoring requirements under this section.
3. 0.5 Feet per Second Through-Screen Actual Velocity
This method of compliance is similar to the design velocity
alternative discussed above, except that the intake's maximum design
velocity can exceed 0.5 fps, as long as the intake is operated such
that the actual, measured velocity does not. As an example, a facility
may have originally been constructed with a maximum design intake of
1.0 feet per second, but now, because it has retired generating
capacity but not pumps, may only withdraw cooling water such that the
actual intake velocity at the intake never exceeds 0.5 feet per second.
This would constitute compliance with the impingement mortality
standard. The maximum velocity must be achieved under all conditions,
including during minimum ambient source water surface elevations (based
on BPJ using hydrological data) and during periods of maximum head loss
across the screens or other devices during normal operation of the
intake structure.
Monitoring the velocity at the screen face or immediately adjacent
to the screen face must be conducted at a minimum frequency of daily.
Monitoring of the approach velocity does not meet this requirement.
However, in lieu of velocity monitoring at the screen face, the owner
or operator may calculate the through-screen velocity using intake
water flow, water depth, and the screen open area. EPA is requiring
this point of measurement to ensure that fish are actually able to swim
away (not into an embayment from which they cannot escape) from the
location within the intake structure at which they are most susceptible
to being impinged.
Under today's final rule, the Director may authorize the facility
to exceed the low velocity compliance alternative for brief periods for
the purpose of maintaining the cooling water intake system, such as
backwashing the screen face. In this compliance option, facilities are
not subject to biological compliance monitoring unless otherwise
specified by the Director (see Sec. 125.96(c)).
4. Existing Offshore Velocity Cap
In this method of compliance, facilities will submit information
under Sec. 122.21(r) that they operate an offshore velocity cap that
meets the definition at Sec. 125.92(v) and that was installed prior to
the effective date of this rule. The definition of offshore velocity
cap includes the requirement that the velocity cap be located a minimum
of 800 feet offshore. The velocity cap must include devices to exclude
marine animals, such as bar screens. The velocity cap must be designed
to change the direction of water withdraw from vertical to horizontal,
thereby creating velocity patterns that can be sensed and trigger an
avoidance response by fish and other aquatic organisms. Intake flow
must be monitored at a minimum frequency of daily. This information
will confirm the intended velocity patterns are created. In this
compliance option, facilities are not subject to biological compliance
monitoring
[[Page 48374]]
unless otherwise specified by the Director (see Sec. 125.96(c)).
EPA notes that facilities choosing to construct a velocity cap at
an offshore location after the effective date of this rule would use
compliance options Sec. 125.94(c)(6) (Systems of Technologies as the
Site-specific BTA for Impingement Mortality) or Sec. 125.94(c)(7)
(Impingement Mortality Performance Standard).
5. Modified Traveling Screens
In this method of compliance, a facility must first operate a
modified traveling screen that meets the definition at Sec. 125.92(s).
The definition identifies and requires those features of a traveling
water screen that provide for an appropriate level of fish protection:
collection buckets (or equivalent) to minimize turbulence to aquatic
life; guard rails or barriers to prevent loss of fish from the
collection system; screen panel materials such as smooth woven mesh,
drilled mesh, molded mesh, or similar materials to protect fish from
descaling; continuous or near-continuous rotation of screens and
operation of collection equipment to recover impinged fish as soon as
practical; low pressure wash or vacuum to remove collected organisms
from the screens; fish handling and return with sufficient water flow
to return fish directly to the source water in a manner that does not
promote predation or the re-impingement of the fish, or a large
vertical drop. EPA intends for this definition to generally include
modified Ristroph screens (including Geiger screens, Beaudrey WIP
screens, and Hydrolox screens), dual flow screens, and rotary screens.
Modified traveling screens with a fish return and handling system
is the technology basis for the impingement mortality standard,
therefore the EPA fully expects biological monitoring of a properly
designed, built, and operated modified traveling screen would
consistently be able to meet the impingement mortality performance
standard. If EPA were to simply set a performance standard based on the
numeric performance levels achievable by modified traveling screens, a
facility would have to conduct continual biological monitoring to
demonstrate compliance. A far more efficient way to demonstrate
compliance would be for facilities to optimize the operation of their
technologies for their site-specific conditions and identify the
conditions that distinguish proper operation at their facility. The
optimized operation of the technology would be largely demonstrated
through the biological data collection and studies required in the
permit application at Sec. 122.21(r)(4) and (6)(i), including an
impingement technology performance optimization study. Biological data
collection should follow the sampling protocols described in section7
below.
The optimized operation documented by the impingement technology
performance optimization study will result in more than just meeting
the impingement mortality standard, and results in a facility achieving
the best possible performance.\93\ The biological data collection and
analysis in the impingement technology performance optimization study
will identify the operating conditions that result in optimized
performance, such as fish sluicing spray pressures, rotation speed and
frequency of the screens, angle of the fish sluicing sprays, fish
return trough water flows, and fish return trough location.\94\ The
Director will then establish these operating conditions as permit
conditions, along with an equipment inspection condition to assure
proper functioning of the technology. As long as the permit conditions
are met, the EPA does not expect any biological compliance monitoring
will be required, unless otherwise specified by the Director, for
example, for the protection of shellfish or fragile species (see Sec.
125.96(c)). Note that EPA does not intend for facilities to install
closed-cycle cooling solely for the purpose of meeting the IM
requirements.
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\93\ As demonstrated by the numerous studies included in the
record for today's final rule, many facilities are able to achieve
less than 10 percent impingement mortality, a performance level
comparable to the impingement mortality of closed-cycle cooling.
Merely requiring facilities to achieve a numerical performance
standard through modified traveling screens creates disincentives to
perform better.
\94\ EPA also requires the entrapment of organisms, as well as
organisms that are carried over the screens, to be counted as
impingement mortality.
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6. Systems of Technologies as the BTA for Impingement Mortality
In this method of compliance, a facility must demonstrate a system
of technologies is employed that will meet the impingement mortality
standard. This option will allow a facility the flexibility to choose
the systems approach of technologies, management practices, and
operational measures it will use to demonstrate compliance, including
but not limited to flow reductions, intake location, behavioral
deterrents, unit closures, seasonal operations, and newly installed
velocity caps. Like the compliance option for modified traveling
screens, the optimized operation of the system of technologies will be
largely demonstrated through the biological data collection and studies
required in the permit application at Sec. 122.21(r)(4) and (6)(ii).
However, the analysis and studies for combining the performance of
varied technologies is more involved.
If the system of technologies includes credit for reductions in the
rate of impingement by the system, the impingement technology
performance optimization study required at Sec. 122.21(r)(6)(ii) will
provide an estimate of those reductions including relevant supporting
documentation. The estimated reductions in rate of impingement must be
based on a comparison of the facility's system to a once-through
cooling system with a traveling screen whose point of withdrawal from
the surface water source is located at the shoreline of the source
waterbody. EPA expects Phase II facilities will use information already
collected as part of their calculation baseline (69 FR 41594, July 9,
2004). In addition, the study must include two years of biological data
collection demonstrating the rate of impingement resulting from the
system. For this demonstration, data collection must be conducted no
less frequently than monthly. The Director may establish more frequent
data collection or a longer period of study.
If the system of technologies includes credit for reductions in
impingement mortality already obtained at the facility, the study must
include two years of monthly biological data collection demonstrating
the level of impingement mortality the optimized system achieves.
Biological data collection must be representative of the impingement
and the impingement mortality at the intakes and should follow the
sampling protocols described in section 7 below. The impingement
technology performance optimization study must provide a description of
any sampling approach used in measuring impingement mortality,
including a taxonomic identification to the lowest taxon possible of
all organisms to be sampled; the method in which naturally moribund
organisms are identified and taken into account; and the method in
which mortality due to holding times is taken into account. In
addition, the study must describe how the location of the cooling water
intake structure in the waterbody and the water column are accounted
for in the sampling locations. EPA requires the entrapment of
organisms, as well as organisms that are carried over the screen, to be
counted as impingement mortality.
If the system of technologies specifically includes flow reduction
to reduce impingement, the impingement
[[Page 48375]]
technology performance optimization study must include two years of
intake flows, measured daily, as part of the demonstration, and must
describe the extent to which flow reductions are seasonal or
intermittent. The rule clarifies that credit for flow reductions must
result from actual reductions in flow, therefore the AIF will be used
as a point of comparison, and not the DIF. The study must document how
the flow reduction results in reduced impingement, and how the
reduction in impingement has reduced the site-specific impingement
mortality. Today's final rule at Sec. 125.98(f)(3)(iii) further
clarifies that credit in reduced impingement or impingement mortality
resulting from unit closures will be valid for a period of 10
years.\95\ This is also reflected in permit application requirements
for an owner or operator planning to retire the facility in the current
permit term at 40 CFR 122.21(r)(1)(ii)(F), or in the following permit
cycle at 40 CFR 122.21(r)(1)(ii)(G).
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\95\ Because a permit may be administratively continued or may
not be issued every 5 years, EPA has specified 10 years rather than
two permit cycles to avoid facilities from taking credit for a unit
closure that potentially occurred decades prior.
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The Director must determine the system of technologies, management
practices, and operational measures that is the best technology
available for impingement reduction at the site. As the basis for the
Director's determination, the facility must demonstrate that the system
of technology has been optimized to minimize impingement mortality of
all non-fragile species. In addition to the impingement technology
performance optimization study, the Director may also use the
biological source water characterization and/or the entrainment
characterization studies in the permit application. EPA expects the
Director's decision will be informed by comparing the impingement
mortality data under Sec. 122.21(r)(6)(ii) to the impingement
mortality performance standard that would otherwise apply under Sec.
125.94(c)(7).
In addition, the impingement technology performance optimization
study requires documentation of the percent impingement mortality
reflecting optimized operation of the total system of technologies,
operational measures, and best management practices and all supporting
calculations. The following example illustrates how these provisions
will adjust for flow, location, and other technologies in demonstrating
the IM performance for a system of technologies.
The example uses values that simplify the calculations to better
illustrate the adjustments, and are not intended to reflect values that
EPA expects at any facility. To simplify the example further, the
facility has only fish and does not have shellfish in its source
waters. EPA has chosen a hypothetical facility that examined each
change in a separate study.\96\ The hypothetical facility intake is
located at a submerged offshore location, has an acoustical deterrent,
and installed variable speed drives. For the purposes of this example,
the facility has completed sampling at the forebay for two years as
part of Sec. 122.21(r)(4) and (6). During the most recent 12 months,
the counts of non-fragile species totals 40,000 impinged fish. During
the 24-hour holding period following each monthly sample collection,
the total fish that died were counted, for a total of 12,000 dead fish
for the preceding 12 months. The facility then calculated the average
IM for the preceding 12 months at 30 percent as follows:
---------------------------------------------------------------------------
\96\ EPA recognizes that facilities often examine the combined
effect of two or more technologies (e.g., deterrents and offshore
location) within a single study. In applying these provisions, the
facility could use the outcomes associated with the combined
performance of multiple technologies, but this would result in
permit conditions that would also be combined.
[GRAPHIC] [TIFF OMITTED] TR15AU14.000
To adjust the observed percent IM for a submerged offshore location
and acoustical deterrent, the facility first extracts information from
its previously conducted studies related to performance and calculation
baseline. Alternatively, the facility could conduct a performance study
during the same two year period in which it conducts its biological
data collection as part of the permit application requirements at Sec.
122.21(r). For the submerged offshore location adjustment, fish density
and flow data show the offshore location reduces the rate of
impingement for all species by 4,000 fish annually. For the acoustical
deterrent, performance data show a reduction in the rate of impingement
of fish by 11,000 organisms annually. For purposes of this example,
assume none of the 15,000 fish are assumed to contribute to further
mortality; in other words, all of the fish that avoided impingement in
the first place survive. Therefore, the facility has reduced
impingement by 15,000 fish (i.e., sum of both submerged offshore
location and acoustical deterrent). The facility then takes credit for
this reduction by adding the forgone impingement to the denominator of
the percent IM calculations as follows:
[GRAPHIC] [TIFF OMITTED] TR15AU14.001
[[Page 48376]]
In summary, calculating percent IM at the forebay yields a 30
percent IM, and then applying the performance for existing technologies
shows the effective percent IM is actually 22 percent. Next, to adjust
for the variable speed drives, the facility has determined from flow
monitoring that the volume of cooling water flow has been reduced by 11
percent. In this example, assume the flow reduction does not vary
considerably each month. The volume of reduced flow multiplied by the
density of fish near the intake is calculated each month for 12 months,
and the facility projects that the reduced flow excludes an additional
8,000 fish from impingement each year. Then the facility would apply
the reduction in annual counts of impinged fish to the denominator, as
follows:
[GRAPHIC] [TIFF OMITTED] TR15AU14.002
Thus, the facility's site-specific system of technologies including
optimized operation of acoustical deterrents has a total system
performance of 19 percent annual impingement mortality. This example is
intended to illustrate how facilities would obtain credit for existing
technologies in a systems approach. While this example includes
acoustical deterrents, it does not imply that acoustical deterrents are
an appropriate technology for all facilities. EPA expects a facility
will use the required two years' worth of monthly biological data
collection and studies to conduct a similar analysis for each month.
The minimum required data collection and studies will result in annual
average performance calculations for 12 consecutive months. The
facility will use this information as part of its demonstration to the
Director.
If the Director determines the system of technologies, management
practices, and operational measures is the best technology available
for impingement reduction at the site, the Director will establish
specific operating conditions as permit conditions, along with
appropriate equipment inspection conditions to assure proper
functioning of each technology. For example, a system with acoustical
deterrents would likely have permit conditions related to frequency of
tones, volume, location, and frequency of operation of the acoustical
deterrents. The Director will also establish monitoring requirements
for intake flow and velocity where such measures are an important part
of the system of technologies, such as the case of variable speed
drives. For example, a system that includes seasonal flow reductions
would likely have permit conditions for flow monitoring. As long as the
permit conditions are met, the EPA does not expect any biological
compliance monitoring will be required, unless otherwise specified by
the Director (see Sec. 125.96(c)).
7. Impingement Mortality Performance Standard
In this method of compliance, facilities are required to monitor to
demonstrate compliance with the impingement mortality performance
standard at Sec. 125.94(c)(7) by demonstrating a 12-month average
mortality of 24 percent or less. The facility is required to monitor at
a minimum frequency of monthly, unless a greater frequency is specified
by the Director. For each monitoring event, the facility would
determine the number of non-fragile organisms that are collected or
retained on sieve with a maximum spacing of 0.56 inches (i.e., that are
impinged [I]), and the number that die after impingement (i.e.,
impingement mortality [IM]). The facility must establish a post-
impingement holding period of 18 to 96 hours otherwise specified by the
Director. Under the definition at Sec. 125.92(b), all life stages of
fish and shellfish excludes specified nuisance species from the totals
for both impingement and impingement mortality. Also, as defined at
Sec. 125.92(q), latent mortality means the delayed mortality of
organisms that were initially alive upon being impinged or entrained
but that do not survive the delayed effects of impingement and
entrainment during an extended holding period. Delayed effects of
impingement and entrainment may be due to stresses that include but are
not limited to temperature change, physical stresses, and chemical
stresses. The manner in which latent mortality is counted must be
identified in the Entrainment Characterization Study at Sec.
122.21(r)(9), and must also be counted in the Impingement mortality
performance standard at Sec. 125.94(c)(7). Fish that are included in
any carryover from a traveling screen or removed from a screen as part
of debris removal must be counted as impingement mortality. Fish that
are entrapped by the cooling water intake system must be counted as
impingement mortality.
The 12-month average of impingement mortality is calculated as the
sum of total impingement mortality over 12 months divided by the sum of
the total impingement over the same 12 months, as shown by the
following equation:
[GRAPHIC] [TIFF OMITTED] TR15AU14.003
Note that this equation would be applicable to calculating the
annual average for the previous 12 months. Although facilities will be
conducting biological monitoring monthly (or more frequently) and
reporting that data in their discharge monitoring reports, facilities
are not required to meet a monthly impingement mortality performance
standard. Therefore, in this equation, IM is the sum of all impingement
mortality over the course of the previous 12 months, and I is the sum
of all impinged fish for the previous 12 months. If the facility's
calculated annual average percentage impingement mortality is less than
the 12-month average performance standard, it will be deemed to be in
compliance with the 12-month average performance standard.
In establishing the monitoring requirements, EPA expects any
approved monitoring protocols will
[[Page 48377]]
consider the entire daily and (where appropriate) tidal cycles over
which data collection should occur. Typically, facilities have
collected impingement samples continuously for 6 or 8 hours and
repeated this cycle to cover an entire 24-hour period. Stratifying
collection in this manner allows an analysis of the diel variation
exhibited by many aquatic organisms, which may be important. EPA also
expects the approved monitoring protocols will ensure that sampling
occurs during periods of representative intake flow and not during
periods of non-peak flow or scheduled outages.
The ideal point to measure impingement mortality is the location
where organisms are returned to the waterbody. However, for ease of
sampling and access, EPA envisions that most facilities will collect
samples from the fish return system(s) at some point before the fish
return discharge point. According to the studies in EPA's database, EPA
envisions that facilities will either (1) divert some or all of the
flow from the fish return into a fish collection and holding area, or
(2) place a net or basket fitted with \3/8\-inch mesh spacing in the
fish return and collect and transfer the retained organisms to a
holding tank. While nearly all studies in the record report the use of
\3/8\-inch mesh spacing, as discussed below, the final rule allows the
use of other sieve and mesh spacings with a 0.56 inch maximum opening.
A facility will handle the organisms in the collection device as little
as possible and transfer them to a holding area with conditions as
close as practicable to the source water. The facility will count the
number of organisms in the holding area and subsequently hold the
sample using proper technique \97\ to maintain the health of the
collected organisms.\98\ At a period of 18 to 96 hours after the
initial collection, the facility will count the number of dead
organisms and determine the percentage of organisms that died in
comparison to the total number of organisms measured initially. Any
organisms not collected by the fish handling and return system, such as
entrapped organisms, organisms in the carryover of a traveling screen,
or organisms collected by a high-pressure wash and sent to debris bins,
will be counted as 100 percent impingement mortality. The facility will
keep records of this information and compare its result to the
impingement mortality performance standard at Sec. 125.94(c)(7).
---------------------------------------------------------------------------
\97\ EPA recognizes that at present, there are no standard
methods for conducting impingement and entrainment studies and that
there can be variability in designing a sampling plan between sites.
However, some elements should be incorporated into any sampling
plan, as outlined in DCN 10-6708.
\98\ Facilities that divert the flow directly would similarly
pass the flow through a net or debris basket fitted with \3/8\-inch
mesh spacing or would count only organisms that would have been
collected with such a basket or net.
---------------------------------------------------------------------------
As explained in Section VI, the impingement mortality restrictions
in the final rule are based on the operation of a modified traveling
screen with a fish return. Because EPA wants to ensure that a
facility's monitoring plan is consistent with the technical basis for
today's requirements, EPA is requiring facilities to monitor
impingement mortality using a sample that has been passed through a
sieve or net with no more than 0.56 inches maximum opening, so that
only organisms that do not pass through this mesh size are counted.\99\
In doing so, facilities would retain (and therefore count) only
organisms that would have been impinged on a \3/8\'' mesh screen, which
was the technological basis used for developing the impingement
mortality performance standard.\100\ Facilities could similarly apply a
``hypothetical net'' in that they could elect to count only organisms
that would not have passed through a net with mesh openings less than
0.56 inches. For example, a facility that uses a fine-mesh screen of
0.5 mm or diverts the flow directly to a sampling bay will need to
count only organisms that remain if the flow passed through a net,
screen, or debris basket fitted with \3/8\-inch mesh spacing. EPA
further expects the impingement mortality restrictions could be applied
to other fish protection technologies and provides a compliance route
for future technologies that are better performing.
---------------------------------------------------------------------------
\99\ For a discussion of how EPA has changed its view of screen
mesh size, see Section III of the proposed rule (76 FR 22188, April
20, 2011). EPA recognizes that smaller organisms that previously
would have passed through a screen and been entrained might be
``converted'' by a fine mesh screen to an impinged organism; because
organisms size would affect the rate of mortality, EPA has chosen
not to rely on definitions of impingement and entrainment based on a
physical process, but instead to define impingement mortality and
entrainment mortality based on organisms sizes.
\100\ EPA's analysis of impingement survival rates is based on
data from facilities with \3/8\'' mesh screens; the performance
standard may be applied differently at facilities with smaller mesh
size. Therefore, these standards do not provide a disincentive to
facilities from using finer-meshed screens (i.e., screens with a
mesh opening smaller than \3/8\ inch) on their traveling screens. As
long as the organisms that are large enough to have been impinged on
a coarse mesh screen achieve the required survival rates, the
facility will be considered to meet the impingement mortality
requirements.
---------------------------------------------------------------------------
In today's rule, EPA is including provisions for reduced biological
monitoring. EPA determined that monthly monitoring at a minimum is
appropriate for at least the first full permit term. In permit terms
subsequent to the first permit issued under today's rule, the owner or
operator may request the Director to reduce monitoring requirements
under Sec. 125.95(c). EPA expects the Director would reduce monitoring
requirements as appropriate, if the facility demonstrates that its
operational and biological conditions have remained the same. Given
that the source waterbody may change over time (including hosting
different or increased numbers of individuals or species), the
biological characterization required at Sec. 122.21(r)(4) including
two years of data serves to alert interested parties as to the status
of the waterbody and any changes in the biology of the waterbody. Under
the compliance option (7) impingement mortality performance standard,
EPA expects that as new technologies are successfully demonstrated, in
subsequent permits facilities would request less frequent monitoring,
or be able to incorporate such technologies in a permit application
choosing a Sec. 125.94(c)(6), system of technologies, demonstration.
Once the Director has determined the technology is fully demonstrated
for that site, the facility would therefore reduce their biological
data collection to the minimum required by the permit application at
Sec. 122.21(r) and any monitoring the Director determines to be
appropriate for verifying permit operating conditions.
8. Additional Measures
Sections Sec. 125.94(c)(8) and (9) provide the Director discretion
to require additional measures to protect shellfish and fragile
species. An example of shellfish protection measures is a barrier net,
including seasonal deployment of such nets. An example of additional
protection measures for fragile species is an acoustical deterrent
system.
9. Summary
The following Exhibit VIII-4 summarizes the monitoring requirements
for impingement mortality by compliance approach alternative. The
Director has the discretion to require additional monitoring under
Sec. 125.96(c) and (d). Since all permits must have requirements for
visual inspections, these are not included in the exhibit.
[[Page 48378]]
Exhibit VIII-4--Summary of Monitoring Requirements for Impingement
Mortality
------------------------------------------------------------------------
Compliance approach Type of monitoring Frequency
------------------------------------------------------------------------
Closed-cycle recirculating system Intake, makeup and Daily.
blowdown flows (or
cycles of
concentration).
Velocity (DIF)................... None............... None.
Velocity (AIF)................... Velocity (measured Daily.
or calculated from
flow).
Velocity cap..................... Intake flow........ Daily.
Modified traveling screens....... TBD \a\............ TBD \a\.
Systems of Technologies.......... TBD \b\............ TBD \b\.
Impingement mortality performance Biological Monthly.
standard. monitoring.
------------------------------------------------------------------------
\a\ Monitoring requirements may vary, depending on the permit-specific
operating conditions.
\b\ The monitoring requirements are based on the technologies employed.
For example, seasonal flow reduction would require flow monitoring.
G. What monitoring is required for entrainment?
Where the Director establishes entrainment controls, the Director
is required to establish monitoring requirements. The final rule
requires that the permit application studies at Sec. 122.21(r) be
submitted for each permit renewal. For facilities that withdraw 125 mgd
AIF, EPA expects that the Director will use these studies, including
the Source Water Baseline Biological Characterization Data at Sec.
122.21(r)(4) and the Entrainment Characterization Study at Sec.
122.21(r)(9), as a basis for any monitoring requirements for
entrainment. To facilitate the determination of entrainment
requirements for facilities below 125 mgd AIF, a Director may require
the owner or operator to submit some or all of the study requirements
at Sec. 122.21(r)(9) through (13) or variations thereof. The Director
may require additional monitoring necessary to demonstrate compliance
with Sec. 125.94(d), additional measures to protect Federally-listed
endangered and threatened species and designated critical habitat
requirements under Sec. 125.94(g), interim standards under Sec.
125.94(h), and any more stringent standards under Sec. 125.94(i).
Under Sec. 125.96(d), existing facilities with new units are
required to conduct compliance monitoring to demonstrate flow
reductions consistent with the requirements of Sec. 125.94(e)(1), or
equivalent impingement and entrainment reductions. The Director may
establish flow monitoring or monitoring of cycles of concentration as
discussed in Section F. Such measures will be used to document that the
facility has minimized make-up and blowdown flows.
For facilities complying under Sec. 125.94(e)(2), the frequency of
monitoring will be determined by the Director and will vary depending
on the facility's chosen method of compliance.
To meet requirements under Sec. 125.94(e)(2), facilities must
measure AIF to establish a site-specific baseline without any new
technologies or employing additional operational measures. The facility
must also measure the density of entrainable organisms (ED)
at a proximity to the intake that is representative of the entrainable
organisms present without the cooling water intake structure. Samples
will be collected over a 24-hour period to monitor each species as
required by the Director. Samples will be collected no less than
biweekly during the primary period of reproduction, larval recruitment,
and peak abundance identified during the Source Water Baseline
Biological Characterization Data required under Sec. 122.21(r)(4).
Samples will be representative of the cooling water intake when the
structure is in operation. In addition, sufficient samples must be
collected to allow for calculation of 12-month average entrainment
levels. The sampling will measure the total count of entrainable
organisms or density of organisms, unless the Director approves of a
different metric for such measurements. If the abundance varies
seasonally, the Director may require several measurements of
entrainment through the year, from which a 12-month average can be
calculated.
For the purpose of today's rule, entrainable is defined as any
organism that passes through a sieve with a maximum opening of 0.56
inches. As discussed in Section VI, this would avoid any confusion as
to which organisms are subject to which standards (i.e., requirements
for IM or requirements for E). The regulation specifies that the sieve
used for calculating impingement must be the same sieve used for
calculating entrainment, so all organisms are accounted for. Facilities
can also monitor the latent entrainment mortality in front of the
intake structure. Entrainable organisms passing through the cooling
water intake structure are to be counted as 100 percent entrainment
mortality unless the facility demonstrates to the approval of the
Director that the mortality for each species is less than 100 percent.
In addition, facilities must monitor the AIF for each intake. The
AIF must be measured at the same time as the samples of entrainable
organisms are collected.
The following equation illustrates how to calculate a baseline
level of entrainment (EB):
EB = ED x AIF
Performance commensurate with a closed-cycle recirculating system
(ECCRS) can therefore be determined by reducing EB by the percentage of
flow reduced through the use of a closed-cycle cooling system. For
example, a facility withdrawing make-up water from a freshwater source
(as described above, would achieve a reduction of 97.5 percent) will
calculate its performance as follows:
ECCRS = (EB) x (100 - 97.5) / 100
The resulting value, ECCRS, is the required level of entrainment
performance (as measured by entrainment mortality). The facility could
implement any combination of flow reduction, technologies, and
operational measures to meet the required level of entrainment
performance. For example, a facility withdraws 200 mgd AIF from a
freshwater river. The annual average entrainment density in the
proximity of the intake structure is 6,400 organisms per 100 cubic
meters withdrawn.
EB = ED x AIF
6,400 organisms/100m3 x (100m3/26,417 gallons) x
200,000,000 gallons per day
= 48 x 106 organisms per day
The maximum entrainment mortality for a closed-cycle cooling system
is thus
ECCRS = (EB) x (100 - 97.5) / 100
= (48 x 106 organisms per day) x (100 - 97.5) / 100
= 1.2 x 106 organisms per day.
The minimum required level of performance for demonstrating
entrainment mortality at a comparable level (EC) to a closed-cycle
cooling system is the level corresponding to 90
[[Page 48379]]
percent \101\ of the reduction that a facility with a closed-cycle
cooling system could achieve:
---------------------------------------------------------------------------
\101\ The 90 percent metric is required in Phase I, and adopted
here because new units are subject to requirements similar to the
Phase I requirements. Phase I, at 40 CFR 125.86 specifies, ``reduced
both impingement mortality and entrainment of all life stages of
fish and shellfish to 90 percent or greater of the reduction that
would be achieved through Sec. 125.84(b)(1) and (2).''
EC = (EB) x (100 - (97.5 x .9)) / 100
= (48 x 106 organisms per day) x (100 - (97.5 x .9)) / 100
= 5.88 x 106 organisms per day.
The Director may require additional monitoring necessary to
demonstrate compliance with Sec. 125.94(d), endangered species
requirements under Sec. 125.94(g), interim standards under Sec.
125.94(h), and any more stringent standards under Sec. 125.94(i).
In addition, all facilities will either conduct visual inspections
or employ remote monitoring devices when the cooling water intake
structure is in operation. The facility will conduct such inspections
at least weekly to ensure that any technologies installed to comply
with Sec. 125.94 are maintained and operated to ensure that they will
continue to function as designed. EPA is aware that for some
facilities, this requirement could pose a feasibility challenge (for
example due to ice cover in the winter season, inability of divers to
see through more than a few inches of water, or certain intakes in deep
water). The rule, therefore, authorizes the Director to establish
alternative procedures. See Sec. 125.96(e).
H. What reports am I required to submit?
1. Status Reports
If the Director establishes a compliance schedule, the Director
will also establish any status reporting requirements. These reports
may include updates on biological monitoring, technology testing
results, construction schedules, or other appropriate topics and serve
as milestones for the facility and the Director to evaluate the
progress of the facility in meeting BTA. See Sec. Sec. 125.94(b) and
(d) and 125.97(b).
2. Monitoring Reports
The required reports for monitoring activities are similar to
requirements that are already in NPDES permits for effluent discharges.
EPA expects such reports to be included with the Discharge Monitoring
Reports (DMRs) or equivalent state reports. Facilities would report any
monitoring, demonstration, and other information required by the permit
sufficient to determine compliance with the permit requirements
established under Sec. 125.94, as well as any other monitoring
requirements specified in the permit. See 40 CFR 125.97(a).
Entrainment requirements will be determined on a site-specific
basis by the Director. For facilities that are required to install
entrainment controls, EPA expects that these facilities would generally
conduct ongoing flow (or other) monitoring as verification that
entrainment has been reduced. See Sec. 125.96(b) and (c). However, the
Director may require facilities to report entrainment monitoring and
analysis, including:
The compliance measurement location.
A description of the flow monitoring procedure.
Documentation of flow reductions.
Any other monitoring requirements specified in the permit.
The report must include any monitoring and analysis required as
part of additional measures for threatened and endangered species,
shellfish, or fragile species as established by the Director. Further,
your report will include documentation of cooling water that is process
water, gray water, waste water, reclaimed water, or other water reused
as cooling water in lieu of water obtained by an intake. The Director
will evaluate these reports for compliance with permit requirements as
appropriate.
3. Annual Certifications
Today's rule requires a facility to submit an annual certification
statement signed by the responsible corporate officer. See Sec.
125.97(c). In most cases, the statement would indicate the information
from the previous statement is still pertinent. If modifications were
made to the facility that impacts cooling water withdrawals or
operation of the cooling water intake structures, the statement would
indicate such, and the facility would submit revisions to the
information required in their permit application at Sec. 122.21(r).
4. Other Reporting
In addition, EPA notes that supplemental reporting may be required
under the ESA as part of any incidental take statement or permit (50
CFR 402.14(i)) or a section 10 permit (50 CFR 222.307) that is issued
by the United States Fish and Wildlife Service or the National Marine
Fisheries Service to ensure compliance with the Endangered Species Act.
I. What records will I be required to keep?
As described at Sec. 125.97(d), facilities are required to keep
all permit applications, status, monitoring, and annual reports and
related supporting information and materials at least until the
subsequent permit is issued. Facilities might wish to keep records for
a longer period to maintain a complete regulatory history of the
facility. For example, existing source water biological studies
submitted with a facility's permit application could contain data that
has been collected in the past 10 or more years. When the Director has
approved a request for reduced information collection in the permit
application, the rule requires that records of submissions that are
part of a previous permit application be kept until the subsequent
permit is issued. See Sec. 125.95(e). Records supporting the BTA
determination for entrainment must be kept until such time as the
Director revises the determination. The Director may establish
additional record-keeping requirements in the permit, such as
additional records documenting compliance monitoring, data collection,
or more frequent reports.
Facilities must also keep records of all data used to complete the
permit application and show compliance with the requirements of Sec.
125.94, any supplemental information developed under Sec. 125.95, and
any compliance monitoring data submitted under Sec. 125.96. The
Director may require that these records be kept for a longer period.
J. What are the respective Federal, State, and Tribal roles?
Today's final rule affects authorized State and Tribal NPDES permit
programs. Under 40 CFR 123.62(e), any existing approved section 402
permitting program must be revised to be consistent with new program
requirements within one year from the date of this promulgation, unless
the NPDES-authorized State or Tribe must amend or enact a statute to
make the required revisions. If a State or Tribe must amend or enact a
statute to conform to today's final rule, the revision must be made
within two years of this promulgation. States and Tribes seeking new
EPA authorization to implement the NPDES program must comply with the
requirements when authorization is approved. This final regulation does
not alter State authority under section 510 of the CWA.
In addition to updating their programs to be consistent with
today's final rule,
[[Page 48380]]
States and Tribes authorized to implement the NPDES program are
required under NPDES State program requirements to implement the
cooling water intake structure requirements of subpart J following
promulgation of the final regulations. The permit requirements in this
final rule must be implemented upon the first issuance or reissuance of
permits following promulgation. Duties of an authorized State or Tribe
under this regulation are described throughout this section and include
reviewing permit application materials, determining appropriate
requirements, reviewing monitoring and reporting data, and assessing
whether a facility is complying with the final rule's requirements.
EPA recognizes that some States have invested considerable effort
in developing and implementing section 316(b) permits. This final
regulation at Sec. 125.98(b) and (g) allows the Director flexibility
where there are ongoing permit proceedings or where a BTA determination
has already been made based on substantially the same information
required at Sec. 122.21(r).
EPA will implement these requirements where States or Tribes are
not authorized to implement the NPDES program.
K. Protection of Endangered and Threatened Species and Designated
Critical Habitat
1. Existing Requirements Under Section 9 of the Endangered Species Act
The ESA imposes duties not just on Federal agencies but also on
other entities. Section 9 of the ESA specifically provides that it is
unlawful for any person to ``take'' any endangered species of fish or
wildlife except under defined circumstances. The Services (National
Marine Fisheries Service or U.S. Fish and Wildlife Service) may provide
an exemption to the prohibition on take in one of two ways. Take may be
permitted under section 10 of the ESA (16 U.S.C. 1539) or the Services
may provide an exemption for take that is incidental to otherwise legal
activity through a statement that is included with the Services'
biological opinion developed during Federal agency consultation. (16
U.S.C. 1536(o)) The incidental take statement specifies the terms and
conditions necessary to implement reasonable and prudent measures which
minimize incidental take.
Nothing in today's rule changes the existing, independent
obligations of the facilities subject to this rule under section 9 of
the ESA. Unless exempted by an incidental take statement or section 10
permit, facilities have been prohibited from taking (for example,
harming or killing) endangered species of fish or wildlife. In order to
obtain a section 10 permit, the facility would be required to develop a
Habitat Conservation Plan (HCP), which is a mandatory component of an
incidental take permit application. The HCP must specify the
anticipated effects of the proposed taking, how those impacts will be
minimized or mitigated, the alternative actions to the taking that the
applicant considered, the reasons for not utilizing those alternatives,
and other necessary or appropriate measures that the Secretary may
require.
2. EPA's Consultation Under Section 7 of the ESA
Under section 7 of the Endangered Species Act, each Federal agency
must insure that any action authorized, funded, or carried out by the
agency ``is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of habitat of such species which is determined
by the Secretary, after consultation as appropriate with affected
States, to be critical. . . .'' 16 U.S.C. 1535(a)(2). In the case of
any Federal agency action subject to the ESA that may affect listed
species or critical habitat, the Federal agency must consult with the
concerned offices with responsibilities under the ESA, specifically
NMFS and/or FWS. 50 CFR 402.14(a).
In July 2012, EPA began informal consultation with the NMFS about
the proposed section 316(b) regulations. In October 2012, EPA began
informal consultation with the FWS. EPA prepared a draft biological
evaluation of the effects of this rule on threatened and endangered
species and in it concluded that the rule was not likely to adversely
affect listed species or designated critical habitat. EPA was unable to
obtain the Services' concurrence on EPA's ``not likely to adversely
affect'' finding. In June 2013, EPA requested formal consultation with
the Services under the Endangered Species Act and with that request
submitted a final biological evaluation to the Services. EPA completed
consultations with the Services and has included the Services'
biological opinion and associated documents in the record for this
rulemaking.
Among the organisms potentially subject to impingement and
entrainment at cooling water intake structures are those that are
listed as threatened and endangered. In addition to impinging or
entraining threatened and endangered species, operation of CWISs may
also adversely affect their critical habitat. Today's rule includes a
number of provisions specifically designed to address incidental take
of all federally-listed threatened and endangered species and to insure
that the rule is not likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
critical habitat. These provisions are described below.
The regulatory model adopted by EPA in the Phase I rule and later
in the subsequently-withdrawn Phase II rule for large existing power
producing facilities provided a structure to address and minimize
adverse impacts to threatened and endangered species. EPA's approach
required that facilities subject to the 316(b) rules, at the permit
application stage of the permitting process must, among other things,
identify threatened and endangered species that might be subject to
impingement and entrainment in order to ensure that the permitting
authority would have the requisite information on which to make a
decision about the need for controls to protect threatened and
endangered species. See 40 CFR 122.21(r)(4).
The Phase I and Phase II regulations specifically authorized the
permit writer (referred to as the ``Director'' in EPA's permitting
regulations) to adopt measures designed to protect threatened and
endangered species. Thus, for example, EPA's Phase I regulations for
cooling water intake structures at new facilities require that, under
one of the compliance options, an owner or operator must select and
implement impingement and entrainment minimization measures ``if there
are threatened or endangered or otherwise protected Federal, State or
Tribal species.'' Moreover, the permit writer may require additional
impingement and entrainment reduction measures if the permit writer
determines that the facility after meeting the required performance
standard would ``still contribute unacceptable stress to the protected
species, critical habitat of those species or species of concern.'' 40
CFR 125.84(b)(4) & (5).
The Phase II regulation continued the general approach followed in
the Phase I regulation for protection of threatened and endangered
species. Permit applicants needed to submit the same information on
threatened and endangered species required in the Phase I rule. In
addition, building on the earlier information requirements, the
regulation also would have required facilities selecting and
implementing certain of the alternative BTA
[[Page 48381]]
compliance measures to submit a Comprehensive Demonstration Study that,
among other things, characterized impingement and entrainment at the
facility. Further, the rule would have required a facility to submit an
Impingement Mortality and/or Entrainment Characterization Study that
included taxonomic identification, characterization and documentation
of current impingement mortality and entrainment of all life stages of
fish, shellfish and any species protected under Federal, State or
Tribal law (including threatened or endangered species). 69 FR 41687-
88, July 9, 2004. In addition, the Phase I and II rules included a
requirement for the facility to include in their permit application
documentation of any public participation or consultation with Federal
or State agencies on impacts of their cooling water intake structure on
threatened and endangered species. The regulation then would have
required the permit writer to determine appropriate permit requirements
and conditions. EPA noted that its existing NPDES permitting
regulations reference a number of Federal laws that might apply to
Federally-issued NPDES permits, including the Endangered Species Act.
69 FR 41643-44, July 9, 2004.
Threatened and endangered species were important considerations in
the proposal to today's rule and were of particular concern to the EPA.
The preamble to the proposal reflects at a number of points that, in
looking at the benefits of different regulatory options, EPA attempted
to assess the benefits to threatened and endangered species. See 76 FR
22174, 22197, 22207. The proposal also noted the importance of
obtaining information for the permit writer about potential entrainment
reductions. Thus, the proposal would have required certain facilities
to develop and submit with their permit application detailed
information on their operations as well as an engineering study of the
technical feasibility and incremental costs of candidate entrainment
mortality control technologies and a detailed discussion of the
magnitude of non-water quality benefits. EPA proposed that some
facilities would need to submit an Entrainment Characterization Study
that included an entrainment mortality data collection plan that would
indicate, at a minimum, taxonomic identification, latent mortality
identification, documentation of all methods, and quality assurance/
quality control procedures or sampling and data analysis appropriate
for a quantitative survey. Under the proposal, EPA would also have
required peer review of the entrainment mortality data collection plan.
Peer reviewers would be selected in consultation with the Director who
may consult with EPA and Federal, State, and Tribal fish and wildlife
management agencies with responsibility for fish and wildlife
potentially affected by the cooling water intake structure(s). Further,
facilities with greater than 125 mgd AIF would complete an entrainment
study. The entrainment study could include information already
collected to meet the Phase II requirements at Sec. 122.21(r)(2)-
(r)(4) before those requirements were suspended.
EPA and the Services have completed consultations on the rule. EPA
has received the final biological opinion and associated documents from
the U.S. Fish and Wildlife Service and the U.S. National Marine
Fisheries Service and has included them in the record for the rule. The
Services have concluded that the rule is not likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of designated critical habitat.
3. Final Rule Provisions Related to Threatened and Endangered Species
As noted previously, establishing standards for cooling water
intake structures to minimize impingement and entrainment of all
aquatic organisms will promote and enhance protection of T&E species.
In addition, the rule contains a number of provisions that specifically
concern T&E species; these provisions were developed in light of EPA's
consultation with the Services and were established by EPA to insure
that this rule is not likely to jeopardize listed species or result in
the destruction or adverse modification of designated critical habitat.
To be clear, the ESA provisions of the rule extend to all listed T&E
species, not just fish and shellfish.
The treatment of T&E species in today's rule follows directly from
the Agency's longstanding approach as well as from EPA's proposed 2011
rule which indicated the EPA's intention to address protection of T&E
species. The rule adopts the identical approach followed in the Phase I
and II rules, while adding some refinements to that earlier model which
EPA discussed in the proposed rule. First, it adopts the proposed
requirements that insure an adequate information base is submitted to
the permit writer. As was the case with the Phase I and withdrawn Phase
II rule, apprising the permit writer of the presence and extent of T&E
species at a facility's intake continues to be an important element of
the permit application requirements for existing facilities. While
retaining the existing permit application requirement of 40 CFR
122.21(r), EPA has included in today's rule a provision at Sec.
125.95(f) that requires a facility in its permit application to
identify all Federally-listed threatened and endangered species and
designated critical habitat that are or may be present in the action
area. The action area can generally be considered the area in the
vicinity of the cooling water intake structure. The evaluation is to be
based on information readily available to the facility at the time of
the permit application. In addition, the rule requires the largest
withdrawing facilities to provide taxonomic identification of species
in the vicinity of the intake, thus providing a mechanism for
facilities to determine more accurately their potential impact on
protected species.
The rule requires that the Director transmit all permit
applications to the Services upon receipt. The rule provides the
Services with 60 days to review the permit application. This 60 day
review takes place prior to the public notice of the State or Tribe's
draft or proposed permit. EPA expects that the Services will respond
within 60 days and provide to the Director (1) any corrections to the
list of Federally-listed threatened and endangered species and critical
habitat included in the permit application, (2) any measures that the
Services recommend (including monitoring and reporting) for the
protection of listed species, including any measures that would
minimize any incidental take of listed species, and/or avoid likely
jeopardy to a listed species or destruction or adverse modification of
critical habitat, and/or (3) notify the State or Tribe that the
Service(s) have no corrections to the list of species and critical
habitat and/or that the Service(s) do not recommend any control
measures. The Services' 60 day review period does not constrain the
Director's ability to process the applicant's permit application;
however, the Director may not propose/publish the draft permit until
the 60 day review period has ended, unless the Director has received
the Services' response prior to that time.
In addition, the Services will receive, pursuant to existing
regulations at 40 CFR 124.10(c)(1)(iii) and (e), all permit
applications, as well as fact sheets or statements of basis (for EPA-
issued permits), draft permits, and public notices for all permits. At
this stage of the process, the Services will have the opportunity to
review the draft permit and other materials and provide any
[[Page 48382]]
additional input or suggested control measures to address effects to
listed species or critical habitat. Together, the existing and new
requirements related to transmittal of permitting documents to the
Services will ensure that the Services have the opportunity to provide
information and recommendations to the permit writer relating to any
facility that may affect listed species. This information will be part
of the public record for the permitting decision and the Director would
be required to consider it as a relevant factor, along with all of the
other relevant factors, in deciding what conditions to establish in the
permit. Further, as explained in the MOA between EPA and the Services
discussed elsewhere in today's notice, EPA will use the full extent of
its CWA authority to object to a permit where EPA finds that issuance
of the permit is likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
designated critical habitat. The rule's requirements insure a full
vetting of information and concerns in the permitting process that must
be considered by the Director. These requirements, coupled with the
EPA's commitment to exercise its oversight authority, insure that
today's rule is not likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
designated critical habitat.
Among the recommendations that may be made by the Services to the
facility and the Director are measures to minimize incidental take. EPA
expects that any measures the Services recommend to minimize incidental
take will be consistent with ESA regulations and guidances concerning
reasonable and prudent measures. As stated in the ESA regulations under
50 CFR 402.14(i)(2), ``Reasonable and prudent measures, along with the
terms and conditions that implement them, cannot alter the basic
design, location, scope, duration, or timing of the action and may
involve only minor changes.'' The Endangered Species Handbook (FWS and
NMFS, 1998) explains that: ``Measures are considered reasonable and
prudent when they are consistent with the proposed action's basic
design (e.g., narrowing of disturbed right-of-way at known species
locations), location (e.g., temporary storage of equipment or other
materials), scope, duration, and timing. Reasonable and prudent
measures and terms and conditions should be developed in coordination
with the action agency and applicant, if any, to ensure that the
measures are reasonable, that they cause only minor changes to the
project, and that they are within the legal authority and jurisdiction
of the agency or applicant to carry out.''
Installation of closed-cycle cooling is a major design alteration
of a facility involving significant design and construction activities
(the range of costs associated with closed-cycle cooling is described
elsewhere in today's notice). Because installation of closed-cycle
cooling does alter the basic design of a facility and would involve
more than minor changes, as described in the Services' regulations and
Handbook, EPA does not expect that installation of closed-cycle cooling
would be specified as a measure solely for purposes of minimizing
incidental take. The final rule at Sec. 125.98(j) provides that
nothing in this rule authorizes the take of threatened or endangered
species of fish or wildlife. However, the Services may exempt take
through an incidental take statement issued pursuant to ESA section
7(o) or a permit under ESA section 10. See 16 U.S.C. 1536 (o) and 16
U.S.C. 1539.
This Clean Water Act rule cannot authorize take and does not
purport to do so (nor can NPDES permits authorize take prohibited under
the ESA). Accordingly, under Sec. 125.98(b)(1), the permit writer,
including EPA, must include, in the 316(b) permit requirements,
standard language that states the permit does not authorize the take of
Federally-listed threatened and endangered species. In addition, under
Sec. 125.96(g) (additional monitoring requirements) and Sec.
125.97(g) (additional reporting requirements),where the Director
requires additional measures to protect listed species, monitoring and
reporting requirements associated with those measures will be included
in the permit.
4. EPA Oversight of State-Issued NPDES Permits To Protect Threatened
and Endangered Species
In 2001, the EPA, FWS, and NMFS signed a Memorandum of Agreement
(MOA), (66 FR 11202, Feb. 22, 2001) with the objective of enhancing
coordination between the agencies and to assist the agencies in
executing their respective responsibilities under the Clean Water Act
and Endangered Species Act. The MOA reflects, in part, the EPA's
longstanding commitment to overseeing the operation of state NPDES
programs to ensure protection of endangered species with existing
regulatory requirements. The EPA reaffirms its commitment to ensure
coordination of the EPA's and Services' programs and appropriate
protection of listed species, and EPA will follow the procedures in the
MOA in overseeing implementation of this rule.
The MOA committed the EPA to a number of specific actions that are
pertinent to today's rule. Under the MOA, EPA committed, when contacted
by the Services, to coordinate with the Services and the State/Tribe
during the permit development process, in order to ensure that permits
will comply with all applicable CWA requirements. One way in which
coordination between EPA and the Services is facilitated is through the
exchange of information about permits. The MOA facilitates such
information exchange, as do EPA's NPDES permit regulations at 40 CFR
124.10, that preceded the MOA. These regulations require the Director
to provide public notice and a comment period for draft permits, and to
notify persons identified at 40 CFR 124.10(c)(1)(iii) and (iv). Such
persons specifically include Federal and State agencies with
jurisdiction over fish, shellfish, and wildlife resource and over
coastal zone management plans and thus include the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service.
EPA's commitment to coordinate effectively with the Services
includes following the procedures in section IX.A.6 and 7 of the MOA:
EPA may make a formal objection, where consistent with its CWA
authority, or take other appropriate action, where EPA finds that a
State or Tribal NPDES permit will likely have more than minor
detrimental effect on Federally-listed species or critical habitat.
For those NPDES permits with detrimental effects on Federally-
listed species or critical habitat that are minor, it is the intention
of the Services and EPA that the Services will work with the State or
Tribe to reduce the detrimental effects stemming from the permit. For
those NPDES permits that have detrimental effects on Federally-listed
species or critical habitat that are more than minor, including
circumstances where the discharge fails to ensure the protection and
propagation of fish, shellfish and wildlife, and where the State or
Tribe and the Services are unable to resolve the issues, it is the
intention of the Services and EPA that EPA would work with the State or
Tribe to remove or reduce the detrimental impacts of the permit,
including, in appropriate cases, by objecting to and Federalizing the
permit where consistent with EPA's CWA authority.
EPA will use the full extent of its CWA authority to object to a
State or Tribal permit where EPA finds (taking
[[Page 48383]]
into account all available information, including any analysis
conducted by the Services) that a State or Tribal permit is likely to
jeopardize the continued existence of any listed species or result in
the destruction or adverse modification of critical habitat.
EPA may review or waive review of draft State or Tribal NPDES
permits (40 CFR 123.24(d)). EPA will work with the Services through the
local/regional coordinating teams to help determine which categories of
permits should be reviewed for endangered species concerns. If EPA
finds that a draft permit has a reasonable potential to have more than
a minor detrimental effect on listed species or critical habitat, and
review of a draft permit has been waived, EPA will withdraw this waiver
during the public comment period (see 40 CFR 123.24(e)(1)).
The grounds for EPA's exercise of its discretionary authority to
object to State or Tribal permits are described in the NPDES
regulations at 40 CFR 123.44. These include that the proposed permit
fails to comply, or to ensure compliance with, any applicable
requirement of this part, for example, that a permit application did
not contain information sufficient to demonstrate that the permit will
ensure compliance with applicable requirements. See 40 CFR
123.44(c)(1).
If EPA objects to a NPDES permit under the MOA, EPA will follow the
permit objection procedures outlined in 40 CFR 123.44 and coordinate
with the Services in seeking to have the State or Tribe revise its
permit. A State or Tribe may not issue a permit over an outstanding EPA
objection. If EPA assumes permit issuing authority for a NPDES permit,
EPA will consult with the Service prior to issuance of the permit (as a
Federal action) as appropriate under section 7 of the ESA.
While the MOA was adopted by the agencies in the context of NPDES
permits for discharges of pollutants, it applies equally to NPDES
permits that contain conditions for cooling water intake structures.
Moreover, section 316(b) of the CWA accords EPA broad authority to
protect waters of the United States from adverse environmental impacts
associated with cooling water intake structures, including adverse
effects to Federally-listed species and designated critical habitat. In
implementing this provision, EPA is authorized to consider costs and
benefits of different approaches to minimizing these impacts. The
importance of listed species, and accordingly the benefits associated
with preventing their extinction, animated Congress's enactment of the
Endangered Species Act in 1973. In the case of aquatic organisms that
are listed as endangered or threatened, and designated critical
habitat, EPA has the authority, and will exercise the full extent of
its authority, to object to a permit proposed by a State where EPA
finds (taking into account all available information, and giving, as
appropriate, substantial weight to the views of the Services) that a
State or Tribal permit is likely to jeopardize the continued existence
of such species or result in the destruction or adverse modification of
such critical habitat. If the State permit is not modified to address
EPA's objections, EPA will issue the permit in consultation with the
Services. EPA's commitment to use the full extent of its CWA authority
to object to permits that are likely to jeopardize listed species or
result in the destruction or adverse modification of critical habitat
is a safeguard for the protection of listed species and critical
habitat. Additionally, where the Service communicates in writing to EPA
its conclusion that a proposed State permit is likely to jeopardize the
continued existence of a listed species, EPA will, upon request,
provide the Service a written response. EPA's commitment to use the
full extent of its CWA authority, along with the other provisions of
the rule requiring the EPA, the Services, and State Directors to fully
consider effects to threatened and endangered species and critical
habitat and include appropriate protections in NPDES permits, insures
that the rule is not likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
designated critical habitat.
L. Permits for Existing Facilities Are Subject to Requirements Under
Other Federal Statutes
EPA's NPDES permitting regulations at Sec. 122.49 list Federal
laws that might apply to the issuance of NPDES permits under the NPDES
rules. These include the Wild and Scenic Rivers Act, 16 U.S.C. 1273 et
seq.; the National Historic Preservation Act of 1966, 16 U.S.C. 470 et
seq.; the Coastal Zone Management Act, 16 U.S.C. 1451 et seq.; and the
National Environmental Policy Act, 42 U.S.C. 4321 et seq. For a brief
description of each of these laws, see Sec. 122.49. The provisions of
the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq., relating to essential fish habitat might also be
relevant. EPA's permit application requirements ensure that FWS and
NMFS will have--and other Federal agencies as well, should have--a
broader information base from which to make informed decisions. Note
also that, in the case of EPA-issued permits, EPA's NPDES permitting
regulations specifically require following the requirements of specific
Federal laws that may apply to the issuance of NPDES permits.
IX. Cost Development and Economic Impact Analysis
This section summarizes EPA's analysis of the social cost and
economic impact for three regulatory options. In addition to today's
rule, referred to as the Final Rule, EPA analyzed two other options
similar to those options at proposal (see section VI.D Other Options
Considered for Today's Final Regulation for more context). The
regulatory options can be described as follows:
Final Rule: Flexible impingement mortality performance
standard for existing units based on modified traveling screens with
fish returns for all facilities with DIF greater than 2 mgd, closed-
cycle cooling or its equivalent for new units for impingement and
entrainment, and a national BTA standard that requires a site
determination of entrainment BTA for all other existing units at
existing facilities;
Proposal Option 2: Intake flow commensurate with closed-
cycle cooling for facilities that have a design intake flow of greater
than 125 mgd, flexible impingement mortality limitations based on
modified traveling screens with fish returns for all facilities with
DIF greater than 2 mgd, and closed-cycle cooling or its equivalent for
new units; and
Proposal Option 4: Flexible impingement mortality
limitations based on modified traveling screens for all facilities with
DIF greater than 50 mgd, closed-cycle cooling or its equivalent for new
units, and a site-specific determination of entrainment BTA for all
other facilities and for impingement mortality controls at facilities
with flow less than or equal to 50 mgd.
The first part of this section provides an overall summary of the
costs of the regulatory options to regulated facilities and Federal and
State governments. This discussion is followed by a review of the
method for developing compliance cost estimates. The third part
provides an estimate of the total social costs of the regulatory
options. The final part reviews the economic impact of the regulatory
options.
[[Page 48384]]
A. Overview of Costs to Regulated Facilities and Federal and State
Governments
In estimating the total cost of the regulatory options, EPA
estimated costs for the following components: capital costs and other
one-time costs; installation downtime costs; annual operation and
maintenance costs; and recordkeeping, monitoring, entrainment-related
studies, and reporting costs. All of these costs are included in the
economic impact analysis for the final rule. The cost estimates reflect
the incremental costs attributed only to this final rule. For example,
facilities already having closed-cycle recirculating systems as defined
at Sec. 125.92 will meet the impingement mortality and entrainment
standards of today's rule and, therefore, will not incur costs to
retrofit new technologies. These facilities, including those in New
York and California, will still incur permitting costs. EPA has
established that existing closed-cycle recirculating systems will
comply with the impingement BTA requirements.
For the economic analysis, EPA distinguished between the two
industry groups regulated by the standards for existing facilities as
follows:
Electric Power Producers (electric generators)--facilities
owned by investor-owned utilities, municipalities, States, Federal
authorities, cooperatives, and nonutilities, whose primary business is
electric power generation or related electric power services.
Manufacturing and Other Industries (manufacturers)--
facilities in the paper, aluminum, steel, chemicals, petroleum, food
and kindred products (primary manufacturing industries), and other
industries. In addition to engaging in production activities, some of
these facilities also generate electricity for their own use and
occasionally produce excess power for sale.
For a more detailed discussion of costs to regulated facilities and
costs to Federal, State, and local governments, see Chapter 8 of the
TDD and Chapter 3 of the EA.
Electric generators incurring costs include facilities owned by
private firms, governments, and electric cooperatives. Manufacturers
incurring costs include facilities owned by private firms only. The
administrative costs to Federal, State, and local governments include
the costs of rule implementation--e.g., permits, monitoring, and
working with facilities subject to the final rule to achieve
compliance.
In the economic analysis, EPA accounted for these costs on an as-
incurred basis. They are reported on a pre-tax or after-tax basis,
depending on the specific component of the analysis. These costs also
underlie the analysis of the social costs of the regulatory options.
B. Development of Compliance Costs
This section describes the data and methods used to estimate
compliance costs of the options considered for today's final rule.
Costs were developed for technology controls to address impingement
mortality separately from technology controls for entrainment because
the requirements of the various rule options considered may lead to
different technologies being used by each facility to comply. The
options considered may impose different compliance timelines for
impingement mortality and entrainment control technologies, although
decision making has been synchronized to avoid investments in
impingement BTA controls that could later be rendered obsolete by the
BTA requirements for entrainment. Different methodologies were used and
each is briefly described below. More detailed information on these
methodologies and costs of other technologies and regulatory approaches
are available in Chapter 8 of the TDD.
1. Combined Facility-Specific and Model-Facility Approach
EPA estimated national level costs for regulated facilities under
the final rule and other regulatory options. In general, facility-
specific data can be used to determine the requirements that apply to a
facility and whether that facility already meets the final rule's
requirements. This approach requires facility-specific technical data
for the approximately 1,065 facilities that EPA estimates will be
subject to the final rule. The change in the number of facilities
subject to the final rule compared to the number estimated at proposal
is attributable to changes in how EPA accounted for baseline closures.
See Appendix H of the EA for more details. An alternative approach is
to develop a series of model facilities that exhibit the typical
characteristics of the regulated facilities and calculate costs for
each model facility; EPA would then determine how many of each model
facility would be needed to accurately represent the full universe of
regulated facilities.
The approach used in this effort involved calculating compliance
technology costs for 338 individual facilities for which EPA had
detailed technical data from its questionnaires regarding the intake
design and technology. Specifically, these are the facilities that
completed the detailed technical questionnaire. Where facilities
reported data for separate cooling water intake structures, EPA derived
compliance technology costs for each intake, and summed these intake
costs to obtain total costs for each facility. EPA used the actual
facility data to construct model facilities. Each model facility's
costs were then multiplied by a specific weighting factor, derived from
a statistical analysis of the industry questionnaire, to obtain
industry-wide costs. The weighting factors are similar to the ones
derived during the development of the 2004 Phase II and 2006 Phase III
rules.
2. Updates to the Survey Data
For the 2004 Phase II rule analysis, EPA developed facility-
specific cost estimates for all facilities and published those costs in
an appendix (69 FR 41669, July 9, 2004). Since the initial
implementation of the 2004 Phase II rule, EPA identified several
concerns with using only the facility-specific costing approach, and
the use of those costs in Appendix A. Since 2004 EPA has collected data
from industry and other groups as described in Section III of the
proposed rule (76 FR 22183, April 20, 2011). These data generally
reflect changes to actual intake flow, design intake flow, intake
velocity, technology in place, and operational status. EPA developed a
new master database including this new data to supplement the data from
the detailed technical questionnaire. Although it has been more than 10
years since the detailed technical questionnaire was initially
collected, EPA has undertaken more than 50 site visits and reviewed
available literature. In addition, EPA compared its data with that
collected by Edison Electric Institute, Electric Power Research
Institute, and the Energy Information Administration. On the basis of
that review, EPA concluded that the master database is representative
and reasonably reflects costs for all facilities.\102\ The following
section describes how EPA used this new database to estimate compliance
costs.
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\102\ EPA notes that, while it has not collected updated
technical information for every facility, it has updated financial
data, as discussed later in this section.
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3. Tools for Developing Compliance Costs
During development of the 2004 Phase II rule, EPA began developing
a spreadsheet-based tool that would provide facilities and permit
authorities with a simple and transparent method for calculating
facility-specific
[[Page 48385]]
compliance costs. EPA refined the tool in developing the Phase III
regulations. EPA has since made further refinements to the cost tool,
which was used to calculate the compliance costs for impingement
mortality for today's final rule. The cost tool employs a decision tree
(for a graphical presentation of the decision tree, see Chapter 8 of
the TDD) to determine a compliance response for each model facility.
The decision tree assigns a technology costing ``module'' for the
retrofit to a given technology. Impingement cost estimates are derived
through a series of computations that apply facility-specific data
(such as DIF, width of intake screens, and such) to the selected
technology module. Cost tool outputs include capital costs, incremental
operation and maintenance costs, and installation downtime (in weeks).
To calculate the compliance costs of retrofitting to closed-cycle
cooling for controlling entrainment, EPA used a second tool based on a
cost-estimating spreadsheet using a modified version of a similar tool
developed by the Electric Power Research Institute (EPRI). EPRI's first
draft methodology presented three levels of capital cost according to
the relative difficulty of the retrofit project (easy, average, and
difficult). For electric generators, EPA used costs for the average
level of difficulty because it was developed across a broad spectrum of
facilities and is the most appropriate for estimating national level
costs rather than lower or upper bounds. For manufacturers, EPA used
the difficult level of retrofit costs. This reflects the more complex
water systems and technical challenges to retrofitting closed-cycle
cooling at multiple locations within a manufacturing facility. In site
visits, EPA found the largest manufacturing facilities had multiple
intakes, distributed the water to multiple production processes, have
already significantly increased water reuse as a result of water
audits, and generally operate a complicated water distribution network
at the entire facility, and would therefore require multiple retrofits
to convert the facility to be commensurate with closed-cycle
recirculating system.\103\ Accordingly, EPA determined that the
difficult level of retrofit costs is more representative for purposes
of estimating national level costs. EPA's tool includes additional
modifications to EPRI's methodology, such as increased compliance costs
for approximately 25 percent of facilities to reflect the additional
expense of noise control or plume \104\ abatement, and using only the
cooling water flow rate for non-contact cooling water flow \105\ for
purposes of estimating costs for closed-cycle cooling. EPA has included
the spreadsheet tools in the docket for today's final rule to assist
both facilities and permit authorities in estimating compliance costs
(see DCNs 12-6650 and 12-6651 for the cost tool, as well as and DCN 10-
6930 for EPRI's retrofit analysis).
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\103\ A refinery, for example, may have dozens of heat exchange
processes throughout the facility, including a mix of wet and dry
non-contact cooling equipment.
\104\ The EPRI tool includes drift abatement technologies in its
cost assumptions, so no additional costs were included for drift
eliminators.
\105\ As described in the TDD, EPA used only non-contact cooling
water flows in determining the proper size for wet cooling towers.
Cooling towers are not widely used for contact cooling or process
water, so these flows were excluded. For electric generators, the
vast majority of flow is non-contact cooling, but manufacturers are
more varied in their water usage.
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4. Which technologies form the basis for compliance cost estimates?
EPA identified two broad classes of control technologies that may
be used singularly or in combination to comply with the final rule.
These classes of control technologies are (1) technologies that address
impingement mortality, and (2) technologies that address entrainment.
For further details, see Section VI.
For the impingement mortality requirements, EPA analyzed data from
a wide variety of technologies and facilities, and concluded that
modified (Ristroph or equivalent) \3/8\'' mesh traveling screens with
fish-friendly fish handling and returns are the most appropriate basis
for determining compliance costs.\106\ As discussed in Section VI of
this preamble, a facility may also comply with impingement mortality
requirements by meeting a low velocity compliance alternative,
operating a closed-cycle recirculating system as defined at Sec.
125.92(c), or employing an existing offshore velocity cap as defined at
Sec. 125.92(v). On the basis of facility-specific data, EPA made a
preliminary assessment of which model facilities would not currently
meet impingement mortality requirements through any of these pre-
approved technologies, and assigned technology costs on the basis of
modified traveling screens with a fish handling and return system if
the existing intake used traveling screens. If the intake does not
currently use traveling screens, EPA assigned costs for installing
technologies that would comply with the low velocity compliance
alternative (larger intakes, wedgewire screens, or variable speed
pumps) based on site-specific conditions. These assigned technologies
will meet the BTA standard (see Sec. 125.94(b)). Although EPA no
longer requires installation of barrier nets or equivalent technologies
to protect shellfish in all tidal waters, EPA included the cost of
barrier net technology at approximately 10 percent of the intakes as a
cost component for the ``systems'' approach to compliance with the IM
standards.
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\106\ Note that this does not preclude the use of other
technologies; EPA simply used the available performance data in
deriving the performance requirements. EPA's research has shown that
other technologies may also be capable of meeting the final rule
requirements; however, these technologies are not available at all
facilities.
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EPA also analyzed the costs of those options associated with
entrainment requirements based on wet cooling systems. EPA also
evaluated other technologies for reducing entrainment, such as seasonal
operation of cooling towers, partial towers, variable speed pumps, and
fine-mesh screens. The costs of the final rule include but are not
limited to permit applications; characterization of the source water,
intake structures and any technologies in place; studies of impingement
and entrainment; and recordkeeping, monitoring, and reporting. The
costs also include costs of technologies for complying with the BTA for
IM; the cost of additional technologies that may be required to meet
the site-specific BTA for entrainment are not included, nor are costs
for additional measures that may be required for protection of listed
threatened and endangered species. Section VI further describes the
performance of these technologies. A detailed discussion of how the
costs were developed is in Chapter 8 of the TDD.
5. How is installation downtime assessed?
Installation downtime is the length of time that a facility might
need to shut down for installing a compliance technology. Downtime
estimates primarily assume that the facility would need to completely
shut down operations for some portion of the installation period to
retrofit an intake, such as relocating an intake, connecting wet
cooling systems into the facility, or reinforcing condenser housings.
EPA estimated downtime as incremental outages, taking into account the
periodic outages all facilities incur as part of preventative
maintenance or routinely scheduled outages. For example, nuclear
facilities have refueling outages approximately every 18 months lasting
[[Page 48386]]
approximately 40 days.\107\ The entrainment control implementation
periods under Proposal Option 2, 10 years for fossil fuel facilities
and 15 years for nuclear facilities, would provide facilities with an
opportunity to schedule the retrofit when other major upgrades are
being done, thereby significantly reducing downtime.
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\107\ Nuclear Energy Institute reported average length of outage
from 2003 to 2009.
---------------------------------------------------------------------------
For most facilities subject to impingement mortality, EPA assigned
no incremental downtime. Facilities that are replacing or
rehabilitating existing traveling screens typically do so one intake
bay at a time without affecting the overall operations.\108\ EPA has
also found that facilities that need to scrub screens do so during
other routinely scheduled outages. For some compliance technologies,
however, such as relocating an intake or expanding an existing intake
to lower the intake velocity, several weeks of downtime may be incurred
because these are more invasive tasks. See TDD Exhibit 8-4 for EPA's
net construction downtime for the various IM compliance technologies.
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\108\ EPA's data shows that facilities have an average of 4 to 5
bays.
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EPA reviewed historical retrofit data and site visits conducted
since 2004 and has largely retained its assumptions for downtime from
the Phase II and Phase III rules for facilities retrofitting to closed-
cycle cooling. On average, EPA assumes the net installation downtime
for retrofitting to closed-cycle cooling for non-nuclear electric
generators is 4 weeks. This total downtime allows for the tie-in of the
closed-cycle system to the existing cooling water system. The refueling
outage downtime, the safety-sensitive nature of nuclear facility
retrofits, and other data in EPA's record supports 28 weeks as the net
construction downtime for nuclear facilities. EPA converted downtime
for manufacturing facilities that use cooling water for power and steam
generation into the incremental cost for purchasing electricity during
the outage. For individual process units other than power generation
units at a manufacturing facility, on average the downtime was assumed
to be zero. In EPA's extensive experience with manufacturers, EPA's
record reflects that manufacturers are generally able to shut down
individual intakes for specific process lines, use inventory approaches
such as temporary increases of intermediate products, and develop other
workarounds without interrupting the production of the entire facility.
For further discussion of how EPA accounted for installation downtime
in estimating national costs, see below.
6. How is the energy penalty assessed?
The term energy penalty in relation to a conversion to closed-cycle
cooling has a number of different interpretations. The first is the
extra power required to operate fans at a mechanical draft cooling
tower and additional pumping requirements (sometimes referred to as
auxiliary energy requirements or parasitic loads). The second is the
lost power output because of the reduction in steam turbine efficiency
from an increase in cooling water temperature relative to once-through
cooling (often referred to as the turbine efficiency penalty or turbine
backpressure penalty). EPA is clarifying that it views the former as
incremental O&M costs, and the latter is EPA's interpretation of the
energy penalty. Energy penalty costs apply only to facilities
retrofitting to closed-cycle cooling without replacing the condenser.
Facilities installing a new impingement mortality technology will not
generally face an energy penalty and will generally see little or no
measureable change in auxiliary power consumption. EPA's national-level
costs include both these costs. The auxiliary power consumption was
included as a separate component in the operation and maintenance costs
and was assessed for all facilities. The turbine efficiency penalty was
typically expressed as a percentage of power output. EPA estimates the
turbine efficiency energy penalty for nuclear and non-nuclear power
generation would be 2.5 and 1.5 percent, respectively (see Chapter 8 of
the TDD). For most manufacturers generating their own electricity, EPA
assumed the same energy penalty for turbine efficiency loss as
estimated for non-nuclear power facilities (i.e., 1.5 percent).
7. How did EPA assess facility-level costs for the national and
regional economic impacts analysis?
As part of the economic impact analysis, EPA assessed the impact of
the final rule's requirements on electric generators in the context of
national and regional electricity markets. For this analysis, EPA used
the Integrated Planning Model (IPM[supreg]), a comprehensive
electricity market optimization model that assesses such impacts within
the context of regional and national electricity markets. EPA has used
IPM to analyze the impacts of various regulatory actions affecting the
electric power sector over the last decade, particularly Clean Air Act
regulations.
Because IPM requires facility-specific costs for each analyzed
facility, yet compliance costs were developed as weighted sums of model
facility costs, EPA developed a method to distribute the aggregate
costs to facilities that were not themselves model facilities. For
these facilities, EPA converted facility-level costs developed for
model facilities to a cost per mgd DIF and then averaged these values
to derive cost equations using DIF as the independent variable. These
cost equations provide average costs that can be applied to any
facility by simply scaling to that facility's DIF. For details on the
IPM analysis, see the EA, Chapter 6. For details on facility cost
development, see the TDD, Chapter 8.
8. How did EPA assess costs for new units?
Power generation and manufacturing units that are a new unit as
defined at Sec. 125.92(u) must meet an entrainment reduction
performance standard based on closed-cycle cooling or an equivalent
reduction in entrainment for the cooling water component of the intake
flow based on the DIF. This section briefly describes the data and
methods used to estimate compliance costs for new units at existing
electric generators and manufacturers. Chapter 8 of the TDD has a
complete description of the methodology.
a. New Units at Existing Electric Generators
Compliance costs for new units at existing electric generators are
estimated using a similar methodology to that used for estimating
compliance costs for existing facilities. As described in Chapters 6
and 8 of the TDD, however, there are a number of differences in costs
between a closed-cycle cooling retrofit at an existing facility
compared to installing closed-cycle cooling at a new unit. In general,
these differences result in lower costs for the installation of a
closed-cycle recirculating system at a new unit (as compared to a
retrofit scenario), due to improved efficiency of the turbine, the
elimination of construction downtime, greater ease of integrating the
closed-cycle system into the design and construction of the new unit,
offsetting costs of certain system and construction components, and
greater overall system optimization.
EPA could not determine precisely which facilities will construct
new units. Instead, EPA used an approach to estimate what portion of
the new capacity (i.e., additional megawatts capacity to be constructed
each year) would be subject to the final rule. Using national
projections of increased
[[Page 48387]]
generating capacity,\109\ EPA categorized the new capacity into three
groups for 316(b) compliance purposes: (1) Subject to the Phase I
rule,\110\ (2) subject to today's final rule, but projected to install
a cooling system that complies with the rule regardless of the rule
requirements,\111\ and (3) subject to today's rule and projected to
incur compliance costs. Exhibit IX-1 presents the estimated total new
capacity and the estimated capacity for new stand-alone units.
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\109\ Capacity increases include considerations for fuel type.
See Chapter 8 of the TDD for details.
\110\ New capacity that is part of a new facility (as defined by
the Phase I rule) is subject to separate requirements not addressed
by today's rule. Today's requirements for new units require flow
reduction commensurate with a closed-cycle recirculating cooling
system.
\111\ Data in the record show a marked increase in the use of
closed-cycle cooling in facilities constructed in recent years and
for those projected to be constructed in the near future. These data
indicate that in the 1990s (prior to the Phase I rule), 83 percent
of new cooling systems installed were closed-cycle cooling systems
and that the current trend was approximately 97 percent. Based on
these data EPA assumed that 75 percent to 90 percent of new units
will be designed with a closed-cycle recirculating cooling system
regardless of the requirements of today's rule. See DCN 12-6672. As
a result, this category of new capacity was not assigned any
compliance costs.
Exhibit IX-1
------------------------------------------------------------------------
Total Existing
including facility
Phase I new units
Fuel type ------------- only
New ------------
Capacity Stand-Alone
(MW) (MW)
------------------------------------------------------------------------
Fossil Fuel................................... 295 80
Combined Cycle................................ 3,264 147
-------------------------
Total..................................... 3,559 227
------------------------------------------------------------------------
Costs for closed-cycle cooling are assigned to a portion of new
stand-alone units, as shown the generating capacities in Exhibit IX-3.
Exhibit IX-3
------------------------------------------------------------------------
Annual only 24-year
------------- total only
Fuel type ------------
Stand-Alone Stand-Alone
MW MW
------------------------------------------------------------------------
Fossil Fuel................................... 8 191
Combined Cycle................................ 15 353
-------------------------
Total..................................... 23 544
------------------------------------------------------------------------
EPA then estimated the total costs for the third group (i.e., those
units that would incur compliance costs) to comply with requirements
for new units. EPA used certain assumptions regarding cooling system
design to modify cost equations used for estimating closed-cycle
retrofit costs at existing units and then applied the cost equations to
the portion of projected new unit generating capacities that would be
subject to the new unit provisions of today's rule. These costs include
capital \112\ and O&M costs, as well as a reduction in net generating
capacity due to auxiliary power consumption to operate the closed-cycle
recirculating system. Due to the complex nature of constructing a new
unit, there is no increase in the length of the construction project as
a result of employing a closed-cycle system; similarly, there is no
downtime, as the unit has not yet begun operating. See Chapter 8 of the
TDD for more information.
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\112\ The record indicates that the total estimated capital cost
for installing a closed-cycle recirculating system at a new unit to
comply with today's rule ranges from a negative value (as compared
to the cost for installing a once-through system) to a positive
value that could approach the cost of an existing facility retrofit.
Said differently, if one assumes that the new unit would have
constructed a new intake structure, EPA's record shows that the
capital costs for the new unit once-through system would be greater
than if the new unit installs a closed-cycle recirculating system.
(See DCN 10-6650.) Alternatively, if the new unit did not require
modification of the existing cooling system infrastructure, then the
capital costs for installing a closed-cycle recirculating system
would be similar to an existing facility retrofit minus some tie-in
costs since the condenser is being replaced. While EPA envisions
that the actual costs will vary (i.e., some will be in the negative
portion of the range and others will be in the positive), EPA is
also unable to project what cooling water intake arrangements a new
unit will use. Consequently, for all new units, EPA selected a
capital cost equal to the midpoint between the tower only and the
easy retrofit costs. As a result, EPA assumed that the capital costs
for these units was $154 per gpm in 2009 dollars which converts to
$30,800 to $60,060 per MW capacity depending on fuel type. For a
more detailed discussion, see TDD Chapter 8.
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b. New Units at Existing Manufacturers
On the basis of site visits to manufacturing facilities, EPA has
observed that manufacturers are increasingly taking advantage of water
conservation and reuse measures as a means of cost-cutting. EPA also
notes that manufacturers are subject to a wide variety of ELGs and
that, in the course of complying with requirements for those ELGs, a
facility may also reduce its intake flow. (See Chapter 4 of the TDD.) A
new unit provides the opportunity to employ such measures to the
fullest extent in designing the new unit. The availability of water
conservation and reuse opportunities, coupled with operational
flexibility at facilities with multiple industrial processes, leads EPA
to conclude that facilities installing new units at existing
manufacturers will comply with the new unit provisions through
achieving the 90 percent reduction required at Sec. 125.94(e)(2).
Thus, EPA concluded that the new unit provisions would result in no
additional compliance costs for achieving flow commensurate with
closed-cycle cooling at new units.\113\
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\113\ EPA also notes that some manufacturers may also be able to
increase reuse to a degree where the facility no longer meets the
applicability thresholds of today's rule.
---------------------------------------------------------------------------
To the extent that manufacturers are not able to incorporate water
reuse measures as a means of complying with the new unit provision,
EPA's estimate of new unit costs for manufacturers may be an
underestimate. Manufacturers generally withdraw less water than
electric generators (including manufacturers who generate their own
electricity). Thus EPA has concluded that any underestimation would be
insignificant.
C. Social Costs
EPA assessed the costs to society resulting from the final rule and
other options considered in development of this rule. The findings
presented in this section assume that facilities with impoundments will
qualify as having closed-cycle recirculating systems in the
baseline.\114\ As a result, EPA assigned no compliance technology costs
to these facilities; however, these facilities remain subject to
today's rule and are assigned administrative costs. To the extent that
some of these facilities do not qualify as having closed-cycle
recirculating systems in the baseline, the costs reported in this
section may be underestimates. The social cost of regulatory actions
includes costs to electric generators and manufacturers to comply with
the final rule, and costs to States and the Federal government to
administer the rule. These costs are the opportunity costs to society
of employing scarce resources to prevent the environmental damage that
would occur without today's rule. EPA estimated total social costs for
existing and new units at existing facilities.
---------------------------------------------------------------------------
\114\ In other words, EPA assumed facilities indicating use of
an impoundment in response to their technical survey have lawfully
created such impoundments for the purposes of cooling water.
---------------------------------------------------------------------------
In estimating social costs, EPA assumed that the final rule and
other options considered in development of this rule will not affect
the aggregate quantity of electricity or other affected goods and
services sold to consumers. Thus, the social cost of regulatory
requirements includes no loss in consumer and producer surplus from
reduced sales of electricity or other goods and services produced by
regulated facilities. The Agency calculated the social cost of the
final
[[Page 48388]]
rule and the other options considered using two discount rates: 3
percent and 7 percent.
For existing facilities, EPA assumes that all facilities subject to
the final rule will begin bearing costs associated with today's rule
beginning as soon as 2014, and likely complete investments associated
with today's rule by 2030, depending on the technology-installation
schedules for the final rule and other regulatory options
considered.\115\ EPA performed the social cost analysis over a 51-year
period to reflect (1) the last year in which individual facilities are
expected to achieve compliance (2030) under the final rule or any of
the options considered, (2) the life of the longest-lived compliance
technology installed at any facility (30 years), and (3) a period of
five years after the last year of compliance technology operation
during which benefits continue to accrue. Under this framework, the
last year for which EPA has calculated projected costs is 2059, with
benefits continuing beyond 2059, though on a diminishing basis, through
2064.\116\
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\115\ EPA conducted the cost and economic impact analyses on a
calendar-year basis. For these analyses, EPA used calendar year 2013
as the promulgation year of today's rule and 2014 as the first post-
promulgation analysis year. This slight difference from the actual
promulgation year of 2014 results from the fact that EPA completed
its cost and economic impact analyses for the final rule and
alternative options before EPA decided to delay promulgation from
2013 to 2014. Because the rule is being promulgated during the first
half of 2014, EPA concluded that it would be reasonable to continue
using 2013 as the assumed promulgation year for the regulatory
analysis. EPA expects the differences in the estimated costs and
benefits of the rule due to this slight imprecision to be minimal.
\116\ For this analysis, EPA assumed that the last year of
technology installation for all regulated facilities under any of
the regulatory options--i.e., 2030--is also the first year of
steady-state compliance with regulatory requirements.
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To estimate social costs for existing facilities, EPA developed a
year-explicit schedule of compliance outlays over the 46-year period
from 2014 to 2059 according to cost-incurrence assumptions (for details
on cost-incurrence assumptions, see EA, Chapter 3). EPA then adjusted
these costs for predicted real change (i.e., adjusted for inflation) to
the year of their incurrence and discounted all costs to the beginning
of 2013, the promulgation year used for the analysis. Because the
analysis period extends beyond the useful life of some compliance
equipment, the social cost analysis accounts for re-installation of
impingement mortality compliance technologies after the end of their
initial useful life periods. However, for the regulatory option that
requires a specific entrainment control technology (e.g., wet cooling
systems)--Proposal Option 2--EPA does not expect regulated facilities
to completely rebuild these systems (components such as piping and the
concrete basin can be reused). EPA accounted for other technology
replacement costs (such as pumps and fill material) as part of ongoing
operations and maintenance expenses.
For new units at existing electric generators, EPA calculated an
average annual amount of new capacity to be constructed during the 46-
year social cost analysis period, beginning in 2014. While EPA does not
expect the annual construction of new units to be constant, predicting
the year-to-year fluctuations would be resource intensive. On average,
EPA assumes that its estimate of new unit costs is reasonable. EPA
accounted for compliance costs for these units on an as-incurred basis,
as done for existing facilities. Similar to compliance costs for
facilities subject to the final rule, EPA analyzed costs incurred by
State and Federal governments for administering the regulation on a
year-explicit basis over the 46-year social cost analysis period.
Exhibit IX-4 presents social costs for existing units at existing
facilities under the final rule and other options considered,
calculated using 3 percent and 7 percent discount rates. At the 3
percent discount rate, EPA estimates total annualized social costs of
$272 million for the existing unit provision of today's rule, $252
million for Proposal Option 4, and $3,643 million for Proposal Option
2. At the 7 percent discount rate, these costs are $295 million for
today's rule, $272 million for Proposal Option 4, and $3,583 million
for Proposal Option 2.\117\ See the EA (Chapter 7) for an explanation
of why the annualized costs at the 3 percent discount rate are lower
than the annualized costs at the 7 percent discount rate for the final
rule and Proposal Option 4, while the inverse is the case for Proposal
Option 2 (annualized costs at the 3 percent discount rate are higher
than at the 7 percent discount rate). The largest component of social
cost is the cost of regulatory compliance incurred by regulated
facilities (as opposed to administrative costs estimated for States and
the Federal government). These costs include (1) one-time technology
and other initial costs of complying with the rule, (2) one-time costs
of installation downtime, (3) annual fixed and variable operating and
maintenance costs, including auxiliary energy requirement, (4) value of
energy penalty from operation of compliance technology, and (5)
permitting costs (initial and follow-up start-up costs, initial permit
costs, annually recurring costs associated with monitoring, and non-
annually recurring permitting costs).
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\117\ Because EPA was unable to identify those facilities for
which entrainment control technology would be established as BTA
standards on a site-specific basis, the Agency did not analyze
technology costs associated with these site-specific requirements.
Consequently, the cost and economic analyses conducted in support of
today's rule assume that under the existing unit provision of the
final rule and Proposal Option 4, Electric Generators and
Manufacturers install IM technology only. These analyses also assume
that under Proposal Option 2, Electric Generators with DIF exceeding
125 mgd install only cooling towers and all other Electric
Generators install only IM technologies. Under Proposal Option 2, a
small number of Manufacturers are assigned both IM and entrainment
control technologies because of engineering issues associated with
maintaining separation of contact and non-contact cooling water in
some manufacturing operations. Although EPA did not estimate
technology costs for facilities for which entrainment technology is
established as BTA on a site-specific basis, EPA did include the
costs for data collection and studies that facilities will need to
perform in order to provide information to Directors to make these
site-specific determinations. EPA included these costs in the
administrative costs that are estimated for the final rule and other
options considered.
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Compliance costs estimated for electric generators account for the
largest share of total compliance-related social cost and direct
compliance cost under all three options. On a per-facility basis and at
the 3 percent discount rate, the annualized pre-tax compliance costs
for the electric generators segment under today's final rule are $0.4
million, $0.4 million under Proposal Option 4, and $6 million under
Proposal Option 2.\118\ For manufacturers, the average cost per
regulated facility at the 3 percent discount rate is $0.1 million under
the final rule and Proposal Option 4, and $0.4 million under Proposal
Option 2.\119\ EPA's analysis found a similar profile of per facility
costs using the 7 percent discount rate (see EA Chapter 7 for
additional detail). EPA's estimate of Federal and State government
costs for administering this rule is small in relation to the estimated
direct cost of regulatory compliance. EPA estimates $1 million in
annual administrative costs to States and Federal government for the
final rule, using both the 3 and 7 percent discount rates. These cost
values are the same for Proposal Option 4. EPA estimates $0.7 million
in annual administrative costs to States and the
[[Page 48389]]
Federal government for Proposal Option 2, regardless of the discount
rate used.
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\118\ Calculated by dividing direct compliance costs for each
type of facility by the total of 544 electric generators subject to
today's rule on the basis of facility count-based weights (see EA
Appendix H).
\119\ Calculated using the total of 521 manufacturers subject to
today's rule on the basis of technical weights (see EA Appendix H).
Exhibit IX-4--Total Annualized Social Costs--Existing Units at Existing
Facilities
[in millions, 2011 dollars] \a\
------------------------------------------------------------------------
Proposal Proposal
option 4 Final rule option 2
------------------------------------------------------------------------
Using 3 percent discount rate
------------------------------------------------------------------------
Direct Compliance Costs:
Electric Generators.......... $202.9 $203.7 $3,413.3
Manufacturers................ 47.8 67.7 229.2
Total Direct Compliance Cost..... 250.7 271.4 3,642.5
State and Federal Administrative 1.0 1.0 0.7
Costs...........................
Total Social Costs............... 251.8 272.4 3,643.2
------------------------------------------------------------------------
Using 7 percent discount rate
------------------------------------------------------------------------
Direct Compliance Cost:
Electric Generators.......... 219.2 220.0 3,339.3
Manufacturers................ 51.9 74.2 243.0
Total Direct Compliance Cost..... 271.1 294.3 3,582.3
State and Federal Administrative 1.0 1.0 0.7
Costs...........................
Total Social Costs............... 272.1 295.3 3,583.0
------------------------------------------------------------------------
\a\ Cost estimates exclude costs associated with baseline closure
facilities.
EPA also estimated the cost for installing closed-cycle
recirculating systems at new units at existing electric generators, to
reflect the costs of today's rule. As shown in Exhibit IX-5, EPA
estimated that the new unit provision of the final rule will result in
an annualized cost of $2.5 million and $2.0 million using 3 percent and
7 percent discount rates, respectively, including compliance costs to
facilities and administrative costs to States and Federal government.
The Agency estimated that at a 3 percent discount rate, the total
social cost of the final rule, including the existing and new unit
provisions, will be $275 million. At a 7 percent discount rate, this
cost is $297 million.
Exhibit IX-5--Annualized Total Social Cost of the Final Rule--Existing
and New Units at Existing Facilities
[In millions, 2011 dollars] \a\ \b\
------------------------------------------------------------------------
3% 7%
Discount Discount
rate rate
------------------------------------------------------------------------
New Units......................................... $2.5 $2.0
Existing Units.................................... 272.4 295.3
Existing and New Units............................ 274.9 297.3
------------------------------------------------------------------------
\a\ Cost estimates exclude costs associated with baseline closure
facilities.
\b\ Values may not add due to rounding.
D. Economic Impacts
EPA used several analytic approaches to assess the economic impact
of today's rule and the other options considered, on electric
generators and manufacturers. EPA conducted separate analyses for
electric generators and manufacturers using different methodologies for
each regulated facilities segment. The following sections summarize the
methodologies EPA used to conduct the economic impact analyses and the
findings of these analyses. EPA conducted the economic impact analyses
discussed in this section for existing facilities; the Agency used
compliance cost estimates from the EPA engineering analysis (see TDD
Section X.B).
1. Electric Generators
For the electric generators segment, EPA assessed the economic
impact of the existing unit provision of the final rule and other
options it considered in three ways: (1) The financial burden
associated with a particular regulatory option on facilities and
entities that own them, (2) how potential changes in the price of
electricity would affect electricity consumers, in general, and
residential households, in particular, and (3) broader economic impacts
on the electricity market, taking into account the interconnectedness
of regional and national electricity markets. In preparing the first
two sets of analyses, EPA developed and used sample weights to
extrapolate impacts assessed initially at the level of sample of
facilities, to the full population of facilities subject to the final
rule. For information on how EPA developed and used sample weights, see
the EA, Appendix H.
In addition, EPA assessed the impact of the new unit provision of
the final rule on decisions of existing facilities to construct stand-
alone new units that would be subject to the new unit provision. EPA
made this assessment in two ways: (1) On the basis of comparison, on a
per MW basis, of compliance costs for new units to the overall cost of
building and operating generating units and (2) as is the case with the
existing unit provision, in the context of regional and national
electricity markets, taking into account their interconnectedness.
a. Cost-to-Revenue Analysis for Regulated Facilities and Their Parent
Entities--Existing Unit Provision of the Final Rule
EPA assessed the cost to regulated facilities and their parent
entities on the basis of a cost-to-revenue analysis. For each analysis
level (facility and parent entity), the Agency assumed, for analytic
convenience and as a worst-case scenario, that none of the compliance
costs would be passed on to consumers through electricity rate
increases and, instead, would be absorbed by regulated facilities and
their parent entities.\120\ EPA developed
[[Page 48390]]
this analysis for 544 electric generators.\121\
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\120\ As discussed in EA Chapter 2A: Industry Profiles, the
majority of regulated electric generators operate in States with
regulated electricity markets. EPA estimates that facilities located
in these States may be able to recover compliance cost-based
increases in their production costs through increased electricity
prices. This depends on the business operation model of the facility
owner(s), the ownership and operating structure of the facility
itself, and the role of market mechanisms used to sell electricity.
In contrast, in States where electric power generation has been
deregulated, cost recovery is less certain. While facilities
operating within deregulated electricity markets may be able to
recover some of their additional production costs through increased
revenue, EPA cannot determine the extent of cost recovery ability
for each facility.
\121\ EPA calculated this number as a weighted estimate using
facility count-based weights. This number excludes facilities
assumed either to have already retired their steam operations or
expected to do so in the future.
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i. Cost-to-Revenue Analysis for Regulated Facilities
To provide insight into the potential significance of the
compliance costs to regulated facilities, EPA calculated the ratio of
annualized after-tax compliance costs to baseline annual facility-level
revenues. In the cost-to-revenue comparisons, EPA used cost-to-revenue
thresholds of 1 and 3 percent to categorize facilities according the
potential economic impact of the rule. EPA concludes that facilities
incurring costs below 1 percent of revenue will not face significant
economic impacts, while facilities with costs of at least 1 percent but
less than 3 percent of revenue have a chance of facing economic
impacts, and facilities incurring costs of at least 3 percent of
revenue have a higher probability of significant economic impacts. For
a more detailed discussion of the methodology EPA used for the
facility-level cost-to-revenue analysis, see EA Chapter 4.
Exhibit IX-6 presents a summary of the facility-level cost-to-
revenue analysis results for the final rule and other options
considered. EPA estimates that overall, under the final rule, 86
percent of regulated facilities will incur compliance costs of less
than 1 percent of revenue. Under Proposal Option 4, 87 percent of
regulated facilities would also incur costs of less than 1 percent of
revenue. EPA estimates that Proposal Option 2 would result in 42
percent of facilities incurring costs exceeding 1 percent of revenue,
and 43 percent incurring costs exceeding 3 percent of revenue.
Exhibit IX-6-- Facility-Level Cost-to-Revenue Analysis Results for the Final Rule and Options Considered \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of facilities with cost-to-revenue ratio
-----------------------------------------------------------------------------------------------------------
Option < 1% >= 1% and < 3% >= 3%
-----------------------------------------------------------------------------------------------------------
% % %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposal Option 4........................... 475 87.4 35 6.5 31 5.7
Final Rule.................................. 470 86.5 40 7.4 31 5.7
Proposal Option 2........................... 228 41.9 79 14.5 235 43.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Facility counts exclude baseline closures.
\b\ EIA reports no revenue for 1 facility (2 on a weighted basis). Therefore, EPA conducted this analysis for 339 facilities (542 on a weighted basis).
For more information on facility sample weights see EA Appendix H.
ii. Cost-to-Revenue Analysis for Regulated Parent Entities
EPA also assessed the economic impact using the cost-to-revenue
metric at the level of the parent entity. This analysis, which focuses
on domestic parent entities with the largest ownership share in the
facility, provides insight on the impact of compliance requirements on
those entities that own more than one regulated facility. The analysis
helps to answer the question of whether owning multiple facilities that
are required to comply with today's rule causes financial stress at the
entity level. For each identified parent entity, EPA aggregated
facility-level, annualized, after-tax compliance costs to the level of
the parent entity and compared these entity-level costs to entity-level
revenue.
Similarly to the facility-level analysis, EPA used cost-to-revenue
thresholds of 1 and 3 percent to categorize facilities according the
potential economic impact of the rule. EPA used two weighting
approaches for this analysis: (1) Facility-level weights, but without
entity-level weights and (2) entity-level weights, but without
facility-level weights. These approaches, which are described in
Appendix H of the EA, provide a range of estimates for the number of
entities incurring compliance costs and the costs incurred by any
entity that owns a regulated facility. (For a more detailed discussion
of the methodology used for the entity-level cost-to-revenue analysis,
see EA Chapter 4).
Exhibit IX-7 presents results for the entity-level analysis for the
two weighting approaches. EPA estimates that between 123 and 159
entities own regulated facilities. Further, the Agency estimates that
between 91 and 94 percent of parent entities will incur annualized
costs of less than 1 percent of revenues under the final rule. This
finding also holds under the two other options EPA considered, with
between 91 and 94 percent of entities incurring costs of less than 1
percent of revenue under Proposal Option 4 and between 70 and 78
percent under Proposal Option 2.
Exhibit IX-7--Entity-Level Cost-to-Revenue Analysis Results \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of entities with cost-to-revenue ratio of
Total ---------------------------------------------------------------------------------------
Parent entity type number of < 1% >= 1% and < 3% >= 3% Unknown \a\
entities ---------------------------------------------------------------------------------------
% % % %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Using Facility-Level Weights:
Proposal Option 4................................ 123 112 91.1 3 2.4 0 0.0 8 6.5
Final Rule....................................... 123 112 91.1 3 2.4 0 0.0 8 6.5
Proposal Option 2................................ 123 86 69.9 17 13.8 12 9.8 8 6.5
Using Entity-Level Weights:
Proposal Option 4................................ 159 150 94.2 0 0.0 0 0.0 9 5.8
[[Page 48391]]
Final Rule....................................... 159 150 94.2 0 0.0 0 0.0 9 5.8
Proposal Option 2................................ 159 124 78.1 18 11.6 7 4.4 9 5.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ EPA was unable to determine revenues for 8 parent entities (9 weighted).
\b\ This analysis assumes no cost pass-through to electricity consumers.
b. Potential Electricity Price Effects--Existing Unit Provision of the
Final Rule
As an additional measure of economic impact, EPA conducted two
assessments of the potential price effects on electricity of today's
rule: (1) The annual increase in electricity costs per MWh (megawatt
hour) of total electricity sales and (2) the potential annual increase
in household electricity costs. For analytic convenience and as a
worst-case scenario, these assessments assume that all compliance costs
will be passed through on a pre-tax basis to consumers as increased
electricity prices. This full cost pass-through assumption represents a
``worst-case'' impact scenario from the perspective of electricity
consumers. Facilities that are merchant providers can pass along costs
only to the degree that they are competitive with other generators in
the dispatch process.\122\ This assumption is the opposite of EPA's
assumption in the facility- and entity-level analyses discussed above--
that facilities will pass none of the compliance costs through to
consumers in electricity rate increases. If facilities are able to pass
through all costs, the impacts in the previous subsection would not
occur. The two conditions (no cost pass-through and full cost pass-
through) could not occur at the same time. Thus, the results of the
electricity price-effects analyses discussed in this section, and of
the facility- and entity-level analyses discussed in Section IX.D.a.1,
should not be combined. EPA conducted this analysis for 544 electric
generators.
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\122\ As discussed earlier in Section X.D.b.1, even though
individual regulated facilities may not be able to recover all of
their compliance costs through increased revenues, the market-level
effect may still be that consumers will see higher overall
electricity prices because of changes in the cost structure of
electricity supply and resulting changes in market-clearing prices
in deregulated electricity markets.
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i. Compliance Cost per Unit of Electricity Sales
EPA assessed the potential increase in electricity rates by NERC
region based on the annual cost of the regulatory options per unit of
electricity sold. The Agency used two data inputs: (1) Total pre-tax
compliance cost by NERC region, and (2) estimated total electricity
sales in the year 2020, to gauge the full effects of the rule. To
calculate the total estimated annual cost in each NERC region, the
Agency summed sample-weighted, pre-tax annualized compliance costs over
regulated facilities by region. EPA then calculated the approximate
average price impact per unit of electricity consumption by dividing
total compliance costs by the reported total MWh of sales in each NERC
region. (Details of this analysis are presented in the EA, Chapter 4.)
As reported in Exhibit IX-8, under the existing unit provision of
the final rule, annualized compliance costs (in cents per kWh sales)
range from nearly $0.00 in the WECC region to $0.040 in the HICC
region. EPA reached the same findings for Proposal Option 4. Under
Proposal Option 2, costs range from $0.00 in the WECC region to $0.351
in the HICC region. On average, across the United States, the final
rule and Proposal Option 4 result in a cost of $0.009 per kWh, while
Proposal Option 2 results in a higher cost of $0.155 per kWh.
Exhibit IX-8--Compliance Cost per Unit of Electricity Sales in 2020 by
Regulatory Option and NERC Region
[2011 [cent]/KWh sales] \a\ \b\
------------------------------------------------------------------------
Proposal Proposal
NERC region \c\ \d\ option 4 Final rule option 2
------------------------------------------------------------------------
ASCC............................. 0.000 0.000 0.000
FRCC............................. 0.014 0.014 0.171
HICC............................. 0.040 0.040 0.351
MRO.............................. 0.010 0.010 0.174
NPCC............................. 0.008 0.008 0.126
RFC.............................. 0.011 0.011 0.200
SERC............................. 0.013 0.013 0.219
SPP.............................. 0.009 0.009 0.078
TRE.............................. 0.008 0.008 0.206
WECC............................. 0.000 0.000 0.000
United States.................... 0.009 0.009 0.155
------------------------------------------------------------------------
\a\ This analysis assumes full pass-through of all compliance costs to
electricity consumers.
\b\ Cost values exclude baseline closures.
\c\ ASCC--Alaska Systems Coordinating Council; FRCC--Florida Reliability
Coordinating Council; HICC--Hawaii Coordinating Council; MRO--Midwest
Reliability Organization; NPCC--Northeast Power Coordinating Council;
RFC--ReliabilityFirst Corporation; SERC--Southeastern Electric
Reliability Council; SPP--Southwest Power Pool; TRE--Texas Reliability
Entity, and WECC--Western Energy Coordinating Council.
\d\ No explicitly analyzed facilities are in the ASCC region. For more
information on explicitly and implicitly analyzed regulated
facilities, see EA Appendix H.
[[Page 48392]]
ii. Cost to Households
As an additional measure of the potential electricity price effects
associated with the final rule, EPA estimated the potential annual
increase in electricity costs per household and by NERC region. EPA
used total annualized pre-tax compliance cost per MWh of sales, as
estimated for the electricity rate impact analysis discussed above and
the quantity of residential electricity sales per household as reported
in the 2011 EIA database. To calculate the potential annual cost impact
per household, EPA multiplied the average cost per kWh by the average
kWh per household estimated for each NERC region. (Chapter 4 of the EA
presents details of this analysis.)
As presented in Exhibit IX-9, under the existing unit provision of
the final rule, the average annual cost per residential household
varies across NERC regions, ranging from $0.01 in WECC to $2.82 in
HICC. EPA reached the same findings for Proposal Option 4. Under
Proposal Option 2, the average annual cost per residential household
also varies across NERC regions, ranging from $0.01 in WECC to $31.72
in SERC. EPA estimated that on average, for a typical U.S. household,
the final rule will result in an annual cost of $1.03 in higher
electricity rates per household. EPA estimates that this cost would be
$1.03 per household under Proposal Option 4 and $17.23 per household
under Proposal Option 2.
Exhibit IX-9--Average Annual Cost Burden per Residential Household in
2020 for the Final Rule and Options Considered, and by NERC Region
[2011 dollars] \a\ \b\
------------------------------------------------------------------------
Proposal Proposal
NERC region \c\ \d\ option 4 Final rule option 2
------------------------------------------------------------------------
ASCC............................. $0.00 $0.00 $0.00
FRCC............................. 1.91 1.91 23.15
HICC............................. 2.82 2.82 24.61
MRO.............................. 0.99 1.02 18.10
NPCC............................. 0.61 0.62 9.52
RFC.............................. 1.10 1.10 20.64
SERC............................. 1.96 1.96 31.72
SPP.............................. 1.30 1.30 10.71
TRE.............................. 1.15 1.15 30.59
WECC............................. 0.01 0.01 0.01
United States.................... 1.03 1.03 17.23
------------------------------------------------------------------------
\a\ The rate impact analysis assumes full pass-through of all compliance
costs to electricity consumers.
\b\ Cost estimates exclude baseline closures.
\c\ ASCC--Alaska Systems Coordinating Council; FRCC--Florida Reliability
Coordinating Council; HICC--Hawaii Coordinating Council; MRO--Midwest
Reliability Organization; NPCC--Northeast Power Coordinating Council;
RFC--ReliabilityFirst Corporation; SERC--Southeastern Electric
Reliability Council; SPP--Southwest Power Pool; TRE--Texas Reliability
Entity, and WECC--Western Energy Coordinating Council.
\d\ No explicitly analyzed facilities are in the ASCC region. For more
information on explicitly and implicitly analyzed regulated
facilities, see EA Appendix H.
As noted above, this analysis assumes that facilities will pass
through to consumers all compliance costs through increased electricity
rates. However, facilities and owner entities might not be able to
recover all these costs through rate increases, thereby reducing the
impact of today's rule on electricity consumers. At the same time, EPA
recognizes that electric generators that operate as regulated public
utilities will generally recover environmental compliance costs through
rate increases to consumers.
c. Barrier-To-Development Analysis--New Unit Provision of the Final
Rule
EPA assessed the impact of the new unit provision of the final rule
on decisions of existing facilities to construct stand-alone new units
that would be subject to the new unit provision. As discussed earlier
in this preamble, under this provision, electric power generating units
that meet the definition of a new unit will be required to achieve
intake flow commensurate with closed-cycle cooling. The question of
potential impact of this provision on the construction of new stand-
alone units is important because new stand-alone units will generally
operate with higher energy efficiency and lower environmental impact
than older electric generating capacity, which the new units would tend
to displace as a source of electric power generation. As such, EPA
sought to ensure that the new unit provision would not impede
construction of stand-alone new units.
For this analysis, EPA compared the compliance costs for new units
to the overall cost of building and operating generating units, on a
per MW basis. The purpose of this analysis is to determine whether the
required addition of a closed-cycle recirculating system (CCRS) as part
of a new unit would substantially increase the cost for the new stand-
alone unit, and adversely affect the decision to construct the new
stand-alone unit. This analysis showed that given the low cost of CCRS
in relation to the cost of new capacity, the CCRS requirement will not
pose a barrier to development of new stand-alone units.
EPA also assessed the costs associated with the new unit provision
of the final rule as part of its electricity market analysis, as
discussed in the following section (Section IX.D). This analysis tests
the impact of the new unit requirements on electricity markets
accounting for the expected number and timing of new unit
installations, and provides additional insight on whether the costs of
complying with the new unit provision of the final rule would affect
future capacity additions. This analysis found no material effect of
the final rule's new unit provision on the number and type of new units
that would be constructed. This finding also supports EPA's conclusion
that the new unit provision will not be a barrier to development of new
capacity.
d. Impacts in the Context of Electricity Markets--Existing and New Unit
Provisions of the Final Rule
In the analyses for the previous 316(b) regulations, including the
proposed rule, EPA used the Integrated Planning Model
(IPM[supreg]),\123\ a comprehensive electricity market optimization
model, to assess the economic impact of regulatory options within the
context of
[[Page 48393]]
regional and national electricity markets. To assess facility and
market-level effects of the final rule, EPA used an updated version of
this same analytic system, the Integrated Planning Model Version 4.10
MATS (IPM V4.10--MATS) platform.
---------------------------------------------------------------------------
\123\ Developed by ICF, Inc.
---------------------------------------------------------------------------
Use of a comprehensive, market analysis system is important in
assessing the potential impact of the final rule because of the
interdependence of electricity generating units in supplying power to
the electric transmission grid. Increases in electricity production
costs and potential reductions in electricity output at regulated
facilities--due to the temporary shutdown of existing electric
generating units during technology installation--can have a range of
broader market impacts that extend beyond the effect on regulated
facilities and their direct customers. In addition, the impact of
compliance requirements on regulated facilities may be seen differently
when the analysis considers the impact on those facilities in the
context of the broader electricity market instead of looking at the
impact on a stand-alone, single-facility basis.
The IPM V4.10--MATS platform provides outputs for the NERC regions
that lie within the continental United States. This IPM platform does
not analyze electric power operations in Alaska and Hawaii because
these operations are not connected to the continental U.S. power grid.
The IPM V4.10--MATS platform is based on an inventory of U.S. utility-
and non-utility-owned boilers and generators that provide power to the
integrated electric transmission grid, as recorded in the EIA 860
(2006) and EIA 767 (2005) databases.\124\ IPM does not include electric
power facilities that do not provide power to the U.S. power grid
(e.g., some generating units at industrial facilities). The IPM V4.10--
MATS universe consists of 14,920 generating units at 4,910 existing
electric power facilities, including 520 of the 544 regulated electric
power facilities subject to the final rule.\125\
---------------------------------------------------------------------------
\124\ In some instances, facility information has been updated
to reflect known material changes in a facility's generating
capacity since 2006.
\125\ Facilities excluded from the IPM analysis include three
facilities in Hawaii and one facility in Alaska (i.e., areas that
are outside the geographic scope of the model), four on-site
facilities that are not connected to the integrated electric
transmission grid, four facilities excluded from the IPM baseline as
the result of custom adjustments made by ICF, and 12 facilities that
did not respond to the 316(b) survey.
---------------------------------------------------------------------------
This IPM V4.10--MATS platform embeds a baseline energy demand
forecast from the Department of Energy's Annual Energy Outlook 2010
(AEO2010), with adjustments by EPA to account for the effect of certain
voluntary energy efficiency programs. This platform also incorporates
in its analytic baseline the expected compliance response to existing
regulatory requirements for the following promulgated air regulations
affecting the power sector: the final Mercury and Air Toxics Standards
(MATS) rule; the final Cross-State Air Pollution Rule (CSAPR); \126\
regulatory SO2 emission rates arising from State
Implementation Plans (SIP); Title IV of the Clean Air Act Amendments;
NOX SIP Call trading program; Clean Air Act Reasonable
Available Control Technology requirements and Title IV unit specific
rate limits for NOX; the Regional Greenhouse Gas Initiative;
Renewable Portfolio Standards; New Source Review Settlements; and
several state-level regulations affecting emissions of SO2,
NOX, and mercury that are already in place or expected to
come into force by 2017.
---------------------------------------------------------------------------
\126\ EPA's Cross-State Air Pollution Rule (CSAPR) was
promulgated to replace EPA's Clean Air Interstate Rule (CAIR), which
had been remanded to EPA in 2008. However, on December 30, 2011, the
U.S. Court of Appeals for the D.C. Circuit stayed CSAPR pending
judicial review and left CAIR in place. On August 21, 2012 the Court
issued an opinion vacating CSAPR and again leaving CAIR in place
pending development of a valid replacement. On March 29, 2013, the
United States filed a petition asking the Supreme Court to review
the D.C. Circuit's opinion. Nevertheless, as explained above, CAIR
remains in effect at this time. In light of the continuing
uncertainty on CAIR and CSAPR, EPA determined it would not be
appropriate or possible at this time to adjust emission projections
on the basis of speculative alternative emission reduction
requirements in 2020. EPA expects that the decision vacating CSAPR
and leaving CAIR in place has minimal effect on the results of the
analysis conducted in support of the final rule.
---------------------------------------------------------------------------
In contrast to the screening-level analyses described earlier,
which are static analyses and do not account for interdependence of
electric generating units in supplying power to the electric
transmission grid, IPM accounts for potential changes in the generation
profile of individual electric power facilities and consequent changes
in market-level generation costs, as a result of the final rule. The
model is dynamic in that the analysis covers a multiple-decade period
with information and decisions in any specific period depending on the
analysis information and optimization results for the entire analysis
period. The model is also forward-looking in that it uses forecasts of
future conditions to make decisions for the present. Finally, in
contrast to the screening-level analyses in which EPA assumed either no
pass through of compliance costs (facility and entity cost-to-revenue
analyses discussed in Section IX.D.a.1) or full cost pass-through
(analysis of potential electricity price effects, Section IX.D.b.1),
IPM assesses price and revenue effects from increased costs in
competitive wholesale electricity markets, where some recovery of
compliance costs through increased electricity prices is possible but
not guaranteed.
In performing analyses based on the IPM V4.10--MATS platform, EPA
used as its baseline a projection of electricity markets and facility
operations without the final rule requirements (baseline case). As
discussed above, this baseline accounts for compliance with the
recently promulgated Federal air rules. EPA then overlaid this baseline
with the estimated compliance costs and other operating effects--
downtime for installation of IM technologies at existing units and
auxiliary energy requirement to operate cooling towers at new units--
for regulated facilities under the policy case.
As discussed in Appendix P of the EPA report, the IPM V4.10--MATS
platform models the electric power market over the 43-year period from
2012 to 2054. Within this total analysis period, EPA looked at shorter
IPM analysis periods (run-year windows) \127\ to assess the effect of
the final rule on national and regional electricity markets.
Specifically, to assess the impact of the final rule during the period
when regulated facilities temporarily suspend their operation to
install compliance technologies--the short-term effects analysis or the
downtime effects analysis--EPA used results reported for the 2020 IPM
run year, which represent an 8-year window of 2017 through 2024.\128\
The incurrence of downtime may lead to higher electricity generation
costs overall, as generating units at regulated facilities are taken
out of service to complete technology installation and other generating
units, presumably with higher production costs, are dispatched to meet
electricity demand. Because of the potential resulting increase in
electricity generation costs, it is
[[Page 48394]]
important to examine market-level effects during the period in which
downtime would occur.
---------------------------------------------------------------------------
\127\ Due to the highly data- and calculation-intensive
computational procedures required for the IPM dynamic optimization
algorithm, IPM is run only for a limited number of years. Run years
are selected based on analytical requirements and the necessity to
maintain a balanced choice of run years throughout the modeled time
horizon. Each run year represents adjacent years in addition to the
run year itself.
\128\ As discussed earlier in this document, for the cost and
economic impact analyses, EPA assumed that electric generators will
install IM technologies during the 5-year window of 2018 through
2022. Because this technology-installation window falls within the
time period captured by the 2020 run year (i.e., 2017 through 2024),
EPA judges that 2020 is an appropriate year to capture the effects
of technology-installation downtime.
---------------------------------------------------------------------------
To assess the longer term effect of the final rule on electricity
markets during the period after compliance technology is installed at
all regulated facilities--the steady-state post-compliance period--EPA
analyzed results reported for the IPM 2030 run year, which represents a
10-year window of 2025 through 2034.\129\ Effects that may occur during
this steady-state period include increased electricity production costs
at regulated facilities and potential permanent losses in generating
capacity from early retirement (closure) of generating units. Both
effects may lead to higher overall electricity generation costs through
not only the increased production cost in regulated facilities, but
also through dispatch of higher production cost units to offset
capacity losses, reflecting the general upward shift in production
costs.\130\
---------------------------------------------------------------------------
\129\ EPA expects this steady-state period to begin in the last
year of the technology-installation window, i.e., 2022, and continue
into the future. The 2022 analysis year is captured in the IPM 2020
run year, as opposed to the 2030 run year. However, because all
analysis years represented by the 2030 run year (i.e., 2025-2034)
fall outside the technology-installation window of 2018 through
2022, EPA judges that 2030 is an appropriate year to capture longer
term, steady-state effects of the final rule.
\130\ In seeking to minimize the cost of meeting electricity
demand, IPM will tend to shift production away from regulated
facilities that incur compliance costs, and will shift production to
either non-regulated facilities, which incur no compliance costs, or
to regulated facilities that incur relatively lower compliance
costs. Any of these changes--whether a simple increase in production
costs for previously dispatched units or changes in the profile of
generating unit dispatch--mean increased total costs for electricity
generation, compared to the pre-regulation baseline.
---------------------------------------------------------------------------
EPA measured the impacts of the final rule as the difference
between key economic and operational impact metrics between the
baseline case and the policy case. All analysis results presented below
are representative of modeled market conditions in the years 2017-2034.
While costs are in 2011 dollars, they are reflective of costs in the
modeled years and are not discounted to the start of EPA's analysis
period of 2013.\131\ In contrast to the earlier statement that the cost
and economic impact analysis findings presented in this preamble may be
underestimates because EPA assumed that no facilities with impoundments
will install compliance technology, the market-based analysis presented
in this section reflects the opposite assumption. Namely, despite the
final rule's treatment of impoundments, for purposes of this analysis,
none of the facilities with impoundments are treated as having closed-
cycle cooling in the baseline. As a result, to the extent that some of
these facilities may qualify as having closed-cycle recirculating
systems in the baseline, and thus would not need to install compliance
technology, the costs and economic impacts reported in this section may
be overestimated.
---------------------------------------------------------------------------
\131\ In contrast, the social cost estimated in Section IX.C
reflects the discounted value of compliance costs over the entire
51-year analysis period, as of 2013. Additionally, screening-level
analyses presented in earlier sections are static analyses and do
not account for interdependence of electric generating units in
supplying power to the electric transmission grid. In contrast, IPM
accounts for potential changes in the generation profile of steam
electric and other units and consequent changes in market-level
generation costs, as the electric power market responds to higher
generation costs for steam electric units due to the final rule.
---------------------------------------------------------------------------
i. Analysis Results for the Year 2030--To Reflect Steady State, Post-
Compliance Operations
For the steady-state analysis (2030), EPA considered impact metrics
of interest at three levels of aggregation: (1) Impact on national and
regional electricity markets, (2) impact on the group of 520 regulated
facilities modeled in IPM, and (3) impact on individual 520 regulated
facilities.
Impact on National and Regional Electricity Markets
For the assessment of market-level impacts, EPA considered six
output metrics: (1) Incremental capacity retirements (closures); (2)
changes in capacity retirements as a percent of total baseline capacity
(3) changes in new capacity additions; (4) changes in variable
production costs per MWh, calculated as the sum of total fuel and
variable O&M costs divided by net generation; (5) changes in total
generation costs (fuel, variable O&M, fixed O&M, and capital); and (6)
changes in wholesale electricity prices.
As shown in Exhibit IX-10, the final rule has small effects on the
electricity market, on both the national and regional sub-market basis,
in 2030. At the national level, the analysis shows a total net increase
in retired capacity of approximately 1 GW, or less than 0.1 percent of
the total baseline capacity in 2030 (capacity retirements are discussed
in greater detail in the next section, Impact on Regulated Facilities
as a Group). This 1 GW of net capacity loss reflects a combination of
closures and avoided closures of generating units. ``Avoided closure''
means a generating unit that was projected to close in the baseline
case but remains open in the policy case because of changes in the
relative operating economics of generating capacity. In some instances
an avoided closure can result in an avoided full facility closure.
Overall, the final rule will lead to early retirement of approximately
4 GW of generating capacity and approximately 3 GW of avoided closure
of capacity otherwise projected to retire by 2030, resulting in a net
closure of approximately 1 GW of generating capacity. With only one
exception, these retirements involve older, less efficient generating
units with very low capacity utilization rates.
Five of the eight analyzed NERC regions record modest increases in
retired capacity, with the largest increase, 0.8 percent of baseline
retired capacity, projected to occur in TRE. One NERC region--SPP--
avoids capacity closures, where 1.5 percent of capacity otherwise
projected to retire in the baseline, becomes a more economically viable
source of electricity in the policy case due to changes in the relative
economics of electricity production across the full market, and thus
avoids closure.\132\ Consequently, the final rule is not expected to
have a material ongoing effect on capacity availability and supply
reliability at either the national or the NERC region level.
---------------------------------------------------------------------------
\132\ Avoided closures may occur among facilities that incur no
compliance costs under the final rule or for which compliance costs
are low relative to the costs estimated for other regulated
facilities.
---------------------------------------------------------------------------
The 1 GW of retired capacity is replaced by new, more efficient,
and less polluting capacity. Because the new capacity is more efficient
and less costly to run than the retired capacity, it will run at a
higher capacity utilization rate than the retired capacity; less new
capacity is required to meet electricity demand than the retired
capacity that it replaces. As shown in Exhibit IX-11, under the final
rule, new capacity additions increase by 1 GW at the national level;
this increase represents 0.5 percent of new baseline capacity and 0.1
percent of total baseline capacity (see Exhibit IX-10). This increase
in new capacity is mostly comprised of combined cycle capacity followed
by other non-steam capacity, with coal steam capacity additions
remaining zero in both the baseline case and the policy case.
Consequently, this analysis shows that the final rule is not likely to
impede construction of new combined cycle and coal steam generating
units.\133\
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\133\ As described earlier in this preamble, under the new unit
provision of the final rule, new units as defined at 125.92 include,
stand-alone fossil fuel and combined cycle units. As described in
Chapter 6 of the EA, the IPM analysis accounts only for compliance
costs associated with new units. Further, EPA assigned these costs
only to coal steam and combined cycle capacity.
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As reported in Exhibit IX-10, overall, the final rule has only a
slight impact on electricity prices. For three out of eight NERC
regions, electricity prices decline
[[Page 48395]]
slightly--by no more than $0.05 per MWh (0.1 percent) in TRE.
Electricity prices increase in the remaining five NERC regions, with
the largest increase, $0.29 per MWh (0.4 percent), occurring in NPCC.
These very small estimated changes in electricity prices are
essentially within the analytic ``noise'' of the electricity market
modeling system.
At the national level, total generation costs increase by 0.3
percent of the baseline value--again, a very modest amount. Across
regions, no NERC region records an increase in total costs exceeding
0.5 percent. The change in variable production costs ($/MWh)--a
specific measure of the effect of the final rule on short-run
electricity generation costs--is nearly zero with no NERC region
recording a consequential change.
Exhibit IX-10--Impact of the Final Rule on National and Regional Markets, at the Year 2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net changes in early Changes in variable Changes in total costs Changes in electricity
Total retirements costs -------------------------- price
baseline ---------------------------------------------------- -------------------------
NERC region \a\ capacity % of total % of
(GW) GW baseline $2011/MWh % of Mill 2011$ baseline $2011/MWh % of
capacity baseline baseline
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRCC............................... 68 0 0.30 -$0.03 -0.10 $51 0.30 -0.01 0.00
MRO................................ 76 0 0.00 0.01 0.10 62 0.40 0.21 0.30
NPCC............................... 73 0 0.50 0.00 0.00 28 0.20 0.29 0.40
RFC................................ 237 0 0.10 0.01 0.00 157 0.30 0.15 0.20
SERC............................... 274 0 0.10 0.02 0.10 182 0.30 0.08 0.10
SPP................................ 59 -1 -1.50 0.02 0.10 31 0.30 -0.01 0.00
TRE................................ 98 1 0.80 -0.01 0.00 48 0.30 -0.05 -0.10
WECC............................... 220 0 0.00 0.00 0.00 9 0.00 0.03 0.00
--------------------------------------------------------------------------------------------------------------------
Total.......................... 1,106 1 0.10 0.00 0.00 568 0.30 ........... N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ FRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), and
WECC (Western Electricity Coordinating Council).
Exhibit IX-11--Impact of the Final Rule on New Capacity (GW), at the Year 2030
----------------------------------------------------------------------------------------------------------------
Final rule
Capacity type Baseline value -----------------------------------------------
Value Difference % Change
----------------------------------------------------------------------------------------------------------------
Coal Steam...................................... 0 0 0 NA
Combined Cycle.................................. 75 76 1 0.8
Combustion Turbine.............................. 6 6 0 0.0
Hydro........................................... 0 0 0 NA
Nuclear......................................... 0 0 0 NA
O/G Steam....................................... 0 0 0 NA
Other Non-Steam \a\............................. 25 25 0 0.1
Other Steam \b\................................. 9 9 0 0.0
---------------------------------------------------------------
Total....................................... 114 115 1 0.5
----------------------------------------------------------------------------------------------------------------
\a\ Other non-steam capacity includes wind, solar, pumped storage, and fuel cell.
\b\ Other steam capacity includes biomass, geothermal, municipal solid waste, fossil waste, landfill gas, tires,
and non-fossil waste.
Impact on Regulated Facilities as a Group
EPA used the same IPM V4.10--MATS analysis results for 2030 as
those used to assess market-level impacts described above; however,
this analysis considers the effect of the final rule only on regulated
facilities modeled in IPM (i.e., 520 facilities). For this analysis,
EPA considered four output metrics: (1) Incremental capacity closures;
(2) changes in capacity closures as a percent of total baseline
capacity; (3) changes in total generation; and (4) changes in variable
production costs per MWh.
As shown in Exhibit IX-12, for the group of regulated facilities,
the impact of the final rule is overall slightly greater than that
observed over all generating units in the IPM universe (i.e., market-
level analysis discussed in the preceding section). This difference is
due to the fact that in the electricity market as a whole, impacts on
regulated facilities, which become less competitive compared to
facilities that do not incur compliance costs, are offset by changes in
capacity and energy production at the other electric power facilities.
Nevertheless, the impact on the group of regulated facilities remains
small. For instance, while there is essentially no change in total
available capacity for the overall electricity market at the national
level, for the group of regulated facilities, total available capacity
falls by only 0.4 percent (2 GW). At the regional level, five NERC
regions incur loss in total capacity, with the largest percentage loss
of 2.8 percent and the largest absolute loss of 0.9 GW occurring in the
NPCC region.
The 2 GW of capacity loss at regulated facilities reflects a
combination of closures and avoided closures of generating units in the
universe of regulated facilities. Some unit closures result in full
facility closures (i.e., all generating units at a facility close),
while others result in only partial facility closures (i.e., some, but
not all, generating units at a facility close). For avoided closures, a
generating unit projected to close in the baseline case but remains
open under the policy case,
[[Page 48396]]
in some instances resulting in an avoided full facility closure.
Overall, 22 generating units close (4 GW) and 12 generating units avoid
closure (2 GW) in the policy case, resulting in net closure of 10
generating units (approximately 2 GW) in Electricity Market Analysis--
Final Rule analysis. The 22 generating unit closures reflect retirement
of nine units at six full-closure facilities (2 GW) and retirement of
13 units at six partial-closure facilities (2 GW). With only one
exception, these retirements involve older, less efficient generating
units with very low capacity utilization rates.
At the national level, for the group of regulated facilities, total
generation at regulated facilities declines by less than 2 GWh or
approximately 0.1 percent of baseline generation in these facilities.
The MRO and SERC regions record slight increases in generation
essentially amounting to zero percent of baseline generation at
regulated facilities in these regions, with the remaining five NERC
regions recording a reduction in electricity generation of no more than
0.4 percent in FRCC.
Over all regulated facilities, there is essentially no change in
variable production costs ($/MWh) at the national level, while at the
NERC region level, the change does not exceed 0.2 percent for any of
the regions. These findings of very small effects confirm EPA's
assessment that the assessed capacity closures among regulated
facilities are of little economic consequence at both the national and
regional levels.
Exhibit IX-12--Impact of Electricity Market Analysis Options on the Group of Regulated Facilities, at the Year 2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net change in early Change in generation Change in variable
Baseline retirements/closures -------------------------- production cost
NERC region \a\ capacity -------------------------- -------------------------
(MW) Capacity % of GWh % of % of
(MW) baseline baseline $2011/MWh baseline
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRCC......................................................... 30,794 203 0.7 -527 -0.4 -0.08 -0.2
MRO.......................................................... 31,747 0 0.0 30 0.0 0.01 0.1
NPCC......................................................... 30,977 855 2.8 -25 0.0 0.00 0.0
RFC.......................................................... 126,905 223 0.2 -619 -0.1 0.00 0.0
SERC......................................................... 142,840 476 0.3 3 0.0 0.02 0.1
SPP.......................................................... 24,487 -530 -2.2 -411 -0.3 0.01 0.0
TRE.......................................................... 38,378 808 2.1 -163 -0.1 -0.02 -0.1
WECC......................................................... 34,788 0 0.0 -8 0.0 0.00 0.0
------------------------------------------------------------------------------------------
Total.................................................... 460,917 2,035 0.4 -1,721 -0.1 0.00 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ FRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), and
WECC (Western Electricity Coordinating Council).
Impact on Individual Regulated Facilities
Results for the group of 520 regulated facilities as a whole may
mask shifts in economic performance among individual facilities
incurring compliance costs under the final rule. To assess potential
facility-level effects, EPA analyzed facility-specific changes between
the baseline case and the final rule for the following metrics: (1)
Capacity utilization (defined as annual generation (in MWh) divided by
[capacity (MW) times 8,760 hours]) (2) electricity generation, and (3)
variable production costs per MWh.
Exhibit XI-13 presents the estimated number of regulated facilities
with specific degrees of change in operations and financial
performance. Under the final rule, this analysis shows that most
facilities experience only slight effects--i.e., no change or less than
a 1 percent reduction or 1 percent increase. Only six facilities are
estimated to incur a reduction in capacity utilization and 13
facilities a reduction in generation of at least 1 percent, with only
five facilities estimated to incur an increase in variable production
costs per MWh of at least 1 percent. These facilities represent
approximately 1 percent of 520 regulated facilities analyzed in IPM.
Exhibit IX-13--Impact of the Electricity Market Analysis--Final Rule on Individual Regulated Facilities at the Year 2030
[Number of regulated facilities with indicated effect]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reduction Increase
--------------------------------- --------------------------------- N/A \b\
Economic measures >=1 and No Change >=1 and \c\
>=3% <3% <1% <1% <3% >=3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in Capacity Utilization \a\.............................. 1 5 45 340 35 2 0 92
Change in Generation............................................ 9 4 37 345 29 2 2 92
Change in Variable Production Costs/MWh......................... 2 1 70 86 242 4 1 114
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The change in capacity utilization is the difference between the capacity utilization percentages in the baseline and policy cases. For all other
measures, the change is expressed as the percentage change between the baseline and post-compliance values.
\b\ Facilities with status changes in either the baseline case or the policy case were excluded from these calculations. Specifically, there are 17 full
baseline facility closures, 59 partial baseline facility closures, four avoided partial facility closures, six partial policy facility closures, and
six partial policy facility closures.
\c\ The change in variable production cost per MWh could not be developed for 22 facilities with zero generation in either the baseline case or the
policy case.
[[Page 48397]]
ii. Analysis Results for 2020--To Capture the Effect of Technology-
Installation Downtime
This section presents market-level results for the final rule for
the 2020 IPM run year, which represents 2017 through 2024. As discussed
above, this IPM run year captures the period when regulated facilities
are expected to install compliance technologies under the final rule.
Of particular importance as a potential impact, the additional downtime
from installation of compliance technologies could manifest as
increased electricity production costs resulting from the dispatch of
higher-production-cost generating units during the period when units
are taken offline to install compliance technologies. Because these
effects are of most concern in terms of potential impact on national
and regional electricity markets, this section presents results only
for the overall electricity market and does not present results for the
subset of regulated facilities.
As shown in Exhibit IX-14, the estimated effects of technology-
installation downtime under the final rule are small. At the national
level, total production costs increase by 0.4 percent. At the regional
level, these costs increase in all NERC regions, with MRO and SPP
recording the largest increase of 0.6 percent.
At the national level, variable production costs ($/MWh) increase
by approximately 0.2 percent. While the effect on variable production
costs varies across NERC regions, this effect is small overall, with
the largest increase of less than 0.4 percent occurring in FRCC. While
electricity prices increase in all NERC regions, the magnitude of that
increase is generally small, ranging from $0.15 per MWh (0.3 percent)
in MRO and WECC to $0.56 per MWh (0.9 percent) in FRCC.
Exhibit IX-14--Short-Term Effect of Technology Installation Downtime on National Electricity Market Under the Final Rule--2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Change in generation Change in variable Change in total costs Change in electricity
-------------------------- production cost -------------------------- price
NERC Region \a\ -------------------------- -------------------------
2011$/MWh % of % of Million % of % of
baseline 2011$/MWh baseline 2011$ baseline 2011$/MWh baseline
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRCC............................................ -108 0.0 0.13 0.4 51 0.5 0.56 0.9
MRO............................................. 52 0.0 0.03 0.2 64 0.6 0.15 0.3
NPCC............................................ -88 0.0 0.05 0.2 31 0.3 0.18 0.3
RFC............................................. 447 0.0 0.03 0.1 164 0.4 0.19 0.4
SERC............................................ -369 0.0 0.04 0.1 185 0.4 0.27 0.6
SPP............................................. -53 0.0 0.08 0.3 56 0.6 0.18 0.4
TRE............................................. 0 0.0 0.08 0.3 64 0.5 0.21 0.4
WECC............................................ 33 0.0 0.04 0.2 39 0.1 0.15 0.3
-------------------------------------------------------------------------------------------------------
Total....................................... -88 0.0 0.05 0.2 652 0.4 N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ FRCC (Florida Reliability Coordinating Council), MRO (Midwest Reliability Organization), NPCC (Northeast Power Coordination Council), RFC
(ReliabilityFirst Corporation), SERC (Southeastern Electricity Reliability Council), SPP (Southwest Power Pool), TRE (Texas Reliability Entity), and
WECC (Western Electricity Coordinating Council).
EPA recognizes any capacity outages estimated to occur in conjunction
with installation of compliance technologies at existing units will
require outage coordination by the system operator or other planning
authority. Where possible, these outages would be scheduled in
concurrence with normal scheduled maintenance outages. Permit
authorities are provided flexibility to tailor compliance timelines.
This flexibility will ensure that any adverse impact on local electric
reliability as a result of this rule will be avoided. Facilities would
receive workable construction schedules from permit writers that will
allow schedule outages for installation without adversely affecting
electric supply reliability.
2. Manufacturers
This section presents EPA's estimated economic impacts on
manufacturers for the final rule and the other options EPA considered.
These analyses assess the impact of regulatory requirements on the
financial performance of regulated facilities (facility-level analysis)
and the entities that own them (entity-level analysis). Similarly to
the electric generators analysis, for the manufacturers facility-level
and entity-level analyses, the Agency assumed that facilities would
pass none of their compliance costs forward to customers as price
increases, i.e., all compliance costs will be absorbed by regulated
facilities and their parent entities. For details on the cost-pass-
through (CPT) analysis for information on this assumption, see the EA,
Appendix K. EPA developed and used sample weights to extrapolate
impacts assessed initially at the level of a sample of facilities to
the full population of regulated facilities. For information on the
development and use of sample weights, see EA Appendix H.
a. Facility-Level Impact Analysis for Manufacturers
EPA conducted two separate facility-level analyses for
manufacturers: (1) A stand-alone cost-to-revenue screener analysis and
(2) a facility closure and financial stress short of closure test. For
the cost-to revenue screener test, shown in Exhibit IX-15, EPA divided
the after-tax, annualized compliance cost by facility-level revenue.
Under the final rule, EPA found that of 500 Primary Manufacturing
Industry facilities, 496 incur costs less than one percent of revenue,
four incur costs between one and three percent, and none incur costs
greater than 3 percent. For the nine Other Industries facilities, EPA
estimated that eight facilities would incur costs less than one percent
and one would incur costs between one and three percent of revenue. For
Proposal Option 4, all Primary Manufacturing Industry facilities (500
facilities) and Other Industry facilities (nine facilities) incur costs
less than one percent of revenue. Under Proposal Option 2, 491 Primary
Manufacturing Industry facilities incur costs less than one percent and
nine facilities incur costs between one and three percent, while seven
Other Industry facilities incur costs less than one percent, one
facility incurs costs between one and three percent, and one facility
incurs costs greater than three percent.
[[Page 48398]]
Exhibit IX-15--Facility-Level Cost-To-Revenue Analysis Results
------------------------------------------------------------------------
Number of facilities with a cost-to-
revenue ratio of \a\
Option --------------------------------------
<1% >=1 and <3% >=3%
------------------------------------------------------------------------
Primary manufacturing industries
------------------------------------------------------------------------
Proposal Option 4................ 500 0 0
Final Rule....................... 496 4 0
Proposal Option 2................ 491 9 0
------------------------------------------------------------------------
Other industries
------------------------------------------------------------------------
Proposal Option 4................ 9 0 0
Final Rule....................... 8 1 0
Proposal Option 2................ 7 1 1
------------------------------------------------------------------------
\a\ EPA conducted this analysis for 579 facilities in the Primary
Manufacturing Industries and 10 facilities in the Other Industries.
Note, these facility counts and analysis exclude facilities identified
as baseline closures in the severe impact analysis, which is described
below.
For the second analysis, EPA assessed how compliance costs would
likely affect financial performance and condition of the 509
manufacturers \134\ using two measures: (1) Facility closures (severe
impacts) and associated losses in revenue and employment, and (2)
financial stress short of closure (moderate impacts).
---------------------------------------------------------------------------
\134\ This is a sample-weighted estimate of the number of
manufacturers, calculated using economic weights. This number
excludes 70 facilities estimated to be at substantial risk of
financial failure regardless of any additional financial burden that
might result from the final rule or other options considered in
development of this rule. For details see EA Appendix H.
---------------------------------------------------------------------------
For the analysis of severe impacts, EPA identified a facility as a
regulatory closure if it would have operated under baseline conditions
but would not be financially viable under the new regulatory
requirements and the costs of the final rule leading to that finding
exceeded a threshold of 0.1 percent of revenue. Specifically, the
Agency examined the facility's going-concern value before and after
meeting regulatory requirements. EPA used a discounted cash flow
framework in which after-tax cash flow is discounted at an estimated
cost of capital to calculate the going concern value of the
facility.\135\ In conjunction with the discounted cash flow analysis,
EPA tested whether annualized costs exceeded 0.1 percent of revenue by
dividing the after-tax, annualized total compliance cost by facility-
level revenue. If this analysis found that the facility's business
value would become negative as a result of estimated compliance costs
and the annualized cost of compliance exceeded 0.1 percent of revenue,
EPA classified the facility as a regulatory closure.
---------------------------------------------------------------------------
\135\ This after-tax cash flow analysis conducted for
manufacturers is similar in concept to the cash flow analysis
conducted for electric generators through the IPM analysis.
---------------------------------------------------------------------------
For facilities estimated not to close under the severe-impact test,
EPA conducted a moderate-impact test to assess whether any would
experience financial stress short of closure as the result of
regulatory requirements (e.g., higher costs of capital borrowing). EPA
used two financial performance measures to test for occurrence of
financial stress: (1) Interest coverage ratio and (2) pre-tax return on
assets. The Agency compared these measures before and after compliance
with regulatory requirements against industry-specific performance
thresholds for the two financial measures. If both measures for a
facility exceeded the threshold in the baseline, and at least one
measure fell below the threshold in the post-compliance case, EPA
counted this as a moderate impact based on the rule.
Exhibit IX-16 presents the results from the severe-impact and
moderate-impact analyses. EPA estimated that no facilities would be at
risk of closure as a result of the final rule and that 12 facilities
could experience financial stress short of closure. For Proposal Option
4, EPA also estimated no closures, while moderate impacts are
significantly lower, estimated at two facilities. Under Proposal Option
2, EPA estimated that one facility would be at risk of closure, while
the moderate impact finding is the same as for the final rule: 12
facilities. Again, this analysis is conducted assuming that all the
costs are borne by the facility and cannot be passed along, an
assumption that is highly unlikely to be true, as many of these
facilities are in industries where there is some market power and
barriers to entry. Thus, these tests present worst case scenario
results.
Exhibit IX-16--Facility Impacts and Compliance Costs for Manufacturers \d\
----------------------------------------------------------------------------------------------------------------
Proposed Proposed
option 4 Final rule option 2 \c\
----------------------------------------------------------------------------------------------------------------
Primary manufacturing industries \a\
----------------------------------------------------------------------------------------------------------------
Number of Facilities Operating in Baseline...................... 500 500 500
Number of Closures (Severe Impacts)............................. 0 0 1
Percentage of Facilities Closing................................ 0% 0% 0%
Number of Facilities with Moderate Impacts...................... 2 12 12
Percentage of Facilities with Moderate Impacts.................. 1% 3% 3%
----------------------------------------------------------------------------------------------------------------
Other industries \b\
----------------------------------------------------------------------------------------------------------------
Number of Facilities Operating in Baseline...................... 9 9 9
Number of Closures (Severe Impacts)............................. 0 0 0
[[Page 48399]]
Percentage of Facilities Closing................................ 0% 0% 0%
Number of Facilities with Moderate Impacts...................... 0 0 0
Percentage of Facilities with Moderate Impacts.................. 0% 0% 0%
----------------------------------------------------------------------------------------------------------------
\a\ Primary Manufacturing Industries include facilities in the Aluminum, Chemicals and Allied Products, Food and
Kindred Products, Paper and Allied Products, Petroleum Refining, and Steel industries.
\b\ Other Industries include cooling water-dependent facilities in industries whose principal operations lie in
businesses other than the electric power industry or the Primary Manufacturing Industries.
\c\ Under Proposal Option 2, the percentage of facilities closing is 0.3 percent.
\d\ The analysis assumes no cost pass through.
b. Entity-Level Impact Analysis
EPA also examined the impact of regulatory requirements on entities
that own regulated manufacturers facilities. An entity that owns
multiple facilities could be adversely affected because of the
cumulative burden of regulatory requirements the facilities face. For
this analysis, a parent entity is the domestic parent entity with the
largest ownership share in a regulated facility. For each identified
parent entity, EPA aggregated facility-level, annualized, after-tax
compliance costs to the level of the parent entity and compared these
entity-level costs to entity-level revenue. Similarly to electric
generators, EPA used cost-to-revenue thresholds of 1 and 3 percent as
thresholds for categorizing levels of impacts.
EPA considered two cases, based on two sets of entity-level. These
cases, which are described in the EA, Appendix H, provide a range of
estimates for the number of entities incurring compliance costs and the
costs incurred by any entity owning a regulated facility. EPA conducted
this analysis for 509 facilities in the primary manufacturing
industries and 12 facilities in other industries.\136\ For information
on the methodology used for the entity-level cost-to-revenue analysis,
see the EA, Chapter 5.
---------------------------------------------------------------------------
\136\ This is a sample-weighted estimate of the number of
manufacturer facilities, calculated using technical weights. This
number excludes 67 facilities estimated to be at substantial risk of
closure regardless of any additional financial burden that might
result from the regulatory options under consideration.
---------------------------------------------------------------------------
Exhibit IX-17 presents the results from the entity-level analysis
for these two cases. EPA estimated that between 120 and 337 entities
own 521 regulated facilities. Under the final rule, between 90 and 95
percent of all entities are estimated to incur compliance costs of less
than 1 percent of revenue. This is true also for Proposal Option 2.
Under Proposal Option 4, more entities are expected to incur compliance
costs of less than 1 percent of revenue (between 94 and 96 percent of
all entities).
Exhibit IX-17--Entity-Level Cost-To-Revenue Analysis Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
Not analyzed due to lack Number of entities with a cost-to-revenue ratio of
of revenue information -----------------------------------------------------------------------------
Option -------------------------- < 1% >= 1% and < 3% >= 3%
-----------------------------------------------------------------------------
% % % %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Case 1: Lower bound estimate of number of entities that own regulated facilities; upper bound estimate of total compliance costs that an entity may
incur \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposal Option 4............................... 5 4 113 94 2 2 0 0
Final Rule...................................... 5 4 108 90 6 5 1 1
Proposal Option 2............................... 5 4 108 90 6 5 1 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Case 2: Upper bound estimate of number of entities that own regulated facilities; lower bound estimate of total compliance costs that an entity may
incur \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposal Option 4............................... 12 4 324 96 1 \a\ 0 0 0
Final Rule...................................... 12 4 319 95 6 2 0 0
Proposal Option 2............................... 12 4 319 95 6 2 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The percentage of entities with impacts greater than or equal to 1 percent and less than 3 percent is less than 0.5 percent.
\b\ The total number of entities under Case 1 is 120.
\c\ The total number of entities under Case 2 is 337.
E. Employment Effects
To study employment effects of this rule, EPA considered the
potential effects of the final rule, focusing on the impacts of meeting
compliance requirements in the directly regulated industry sectors: The
Electric Power Industry, and selected Primary Manufacturing Industries,
including Aluminum, Chemicals and Allied Products, Food and Kindred
Products, Paper and Allied Products, Petroleum Refining, and Steel
Manufacturing.
When the economy is at full employment, an environmental regulation
is unlikely to have much impact on net overall U.S. employment;
instead, labor would primarily be shifted from one sector to another.
These shifts in employment impose an opportunity cost on society,
approximated by the wages of the employees, as regulation diverts
workers from other activities in the economy. In this situation, any
effects on net employment are likely to be transitory as workers change
jobs (e.g., some workers may need to be retrained or require time to
search for new jobs,
[[Page 48400]]
while shortages in some sectors or regions could bid up wages to
attract workers).
On the other hand, if a regulation comes into effect during a
period of high unemployment, a change in labor demand due to regulation
may affect net overall U.S. employment because the labor market is not
in equilibrium. Schmalansee and Stavins \137\ point out that net
positive employment effects are possible in the near term when the
economy is at less than full employment due to the potential hiring of
idle labor resources by the regulated sector to meet new requirements
(e.g., to install new equipment) and new economic activity in sectors
related to the regulated sector. In the longer run, the net effect on
employment is more difficult to predict and will depend on the way in
which the related industries respond to the regulatory requirements. As
Schmalansee and Stavins note, the magnitude of the effect on employment
could vary over time, region, and sector, and positive effects on
employment in some regions or sectors could be offset by negative
effects in other regions or sectors. For this reason, they urge caution
in reporting partial employment effects because it can ``paint an
inaccurate picture of net employment impacts if not placed in the
broader economic context.''
---------------------------------------------------------------------------
\137\ Schmalansee, Richard, and Robert N. Stavins. ``A Guide to
Economic and Policy Analysis of EPA's Transport Rule.'' White paper
commissioned by Exelon Corporation, March 2011 (Docket EPA-HQ-OAR-
2011-0135-0054).
---------------------------------------------------------------------------
In that spirit, unlike the analysis for the proposed rule, for the
final rule EPA is not estimating quantitative employment impacts and
instead, including only a qualitative discussion. The methods used at
proposal were not sufficiently robust, largely because they relied on
an input-output analysis that assumed fixed production relationships
and used historical data to estimate the labor and other inputs
required for compliance with the rule. Since publication of the
proposed rule, EPA has concluded that input-output analysis is
inappropriate for assessing employment impacts of national-level
regulations. Input-output models are static, do not include prices, and
assume the supply of all inputs is inexhaustible. They do not model a
wide variety of adjustments that are expected to occur over time, such
as changes in production processes, technology or trade patterns.\138\
After reviewing the public comments EPA received on the proposed rule,
the Agency concludes that the commenters have not identified any
specific improvements to the employment analysis of the proposed rule.
Thus, today's final rule EA includes a qualitative discussion
highlighting the variety of potential adjustments in the labor market
that may follow the rulemaking.
---------------------------------------------------------------------------
\138\ For a discussion of input-output models see Chapter 8 of
the EPA Handbook on the Benefits, Costs, and Impacts of Land Cleanup
and Reuse (2011).
---------------------------------------------------------------------------
To elaborate on the difficulty of deriving high quality estimates
of how environmental regulations will impact net employment, the task
requires consideration of labor demand in both the regulated and
environmental protection sectors, as well as labor supply more
generally. Economic theory predicts that the net effect of an
environmental regulation on labor demand in regulated sectors could be
positive or negative; the direction of the outcome depends on the
magnitude of output and substitution effects, explained further in the
EA. Peer-reviewed econometric studies that use a structural approach,
applicable to overall net effects in the regulated sectors, indicate
that such effects, whether positive or negative, have been small and
have not affected employment in the national economy in a significant
way (Berman and Bui 2001, Morgenstern, Pizer and Shih 2002). Effects on
labor demand in the environmental protection sector seem likely to be
positive.
In aggregate, the environmental protection sector is likely to
experience a temporary increase in jobs created as more compliance
technology systems are designed, manufactured, and installed
attributable to the final rule. In addition, because of regional
variation in consumption patterns and the presence of regulated
facilities and supporting industries, short- and long-run employment
effects likely will vary across the United States. It is possible that
positive net employment effects will occur in the near term due to the
hiring of idle labor resources by the regulated sectors to plan for and
meet new technology control requirements rather than diverting workers
from other productive employment. However, it is also possible that in
the long run, as the economy returns to full employment, any changes in
employment in the regulated sectors due to the final rule will be
offset by employment changes in other sectors. These dynamics compound
the uncertainty in estimating employment effects for a substantial
number of years into the future.
Even if regulated facilities are able to reduce the impact of
regulatory requirements by changing their production processes in the
post-rule environment, production costs may still be higher compared to
those before the rule. As a result, regulated facilities may seek to
increase their product prices in response to the higher production
costs. For example, attempts by electric generators to recover
increases in electricity generation costs, however small, are likely to
result in higher electricity rates. The impact of this increase will
vary by region, customer group (e.g., industrial, commercial,
transportation, and residential), and by industry, depending on the
electricity-use intensity.\139\ Further, the extent to which electric
generators are able to pass their costs to consumers through higher
electricity rates, will vary by region. Specifically, electric
generators operating in regions where electricity prices remain
regulated under the traditional cost-of-service rate regulation
framework may be able to recover compliance cost-based increases in
increased rates.\140\ However, cost recovery is less certain for
electric generators operating in States where electric power generation
has been deregulated, and will depend on the competitive circumstances
of specifically affected facilities.
---------------------------------------------------------------------------
\139\ See the EA Chapter 6: Electricity Market Analysis for
assessment of the impacts of increased production costs on wholesale
electricity prices and Chapter 4: Economic Impact Analysis--Electric
Generators for analyses of the impacts on retail rates by customer
group.
\140\ However, even for electric generators operating under
traditional rate regulation, the recovery of cost increases through
increased rates is not certain, and will depend on additional
factors such as the facility ownership structure and operating
model, approval of public utility commissions, and the importance
and role of market mechanisms in dispatching production of
electricity across generating units. See Chapter 2A of the EA for
additional discussion.
---------------------------------------------------------------------------
Overall, the long-run changes in employment will likely depend on
how the electric power industry, primary manufacturing industries, and
other industries adjust in response to the new regulatory requirements,
and on the upstream and downstream effects of those adjustments on the
rest of the economy, as well as the overall state of the economy and
labor markets. The long-run employment effects in the directly affected
sectors will depend on a number of economic factors. These factors
include changes in labor requirements to operate the infrastructure in
general and compliance technology in particular at regulated
facilities, the potential to change production processes to become less
dependent on cooling water, availability of alternative technologies to
meet compliance requirements, and changes in demand for the outputs of
the directly affected sectors. Because
[[Page 48401]]
these and many other interrelated factors include data and methodology
limitations, it is difficult to fully assess the employment impacts of
the final rule. However, based on the available evidence from several
peer-reviewed econometric studies mentioned above that are applicable
to net effects in the regulated sectors and that closed-cycle
recirculating systems was rejected as national BTA for entrainment, EPA
expects that employment impacts of today's rule are not likely to be
substantial.
X. Benefits Analysis
A. Introduction
This section presents EPA's estimates of the national environmental
benefits of the final existing facilities rule and other options
considered by EPA. This section describes how EPA calculated values for
those benefits it could monetize. EPA did not rely on the results of
its stated preference survey in estimating the benefits of today's
rule. It also presents descriptive information for those benefits for
which EPA could not develop a monetary value. The benefits EPA assessed
occur because of reductions in impingement and entrainment at cooling
water intake structures affected by the rulemaking and changes in
greenhouse gas emissions at regulated facilities. Impingement occurs
where fish and other aquatic life are trapped on equipment as they
enter the cooling water intake structure. Entrainment occurs where
aquatic organisms, including eggs and larvae, are drawn into the
cooling system, passed through the heat exchanger, and discharged back
into the source waterbody. Impingement and entrainment kill or injure
large numbers of aquatic organisms across all life stages. On the basis
of entrainment data presented in facility studies, EPA assumes a
mortality rate of 100 percent for entrained individuals. Mortality is
then reduced on the basis of the efficiency of technology in place in
reducing mortality rates, or by reducing levels of impingement and
entrainment.\141\ By reducing impingement mortality and entrainment,
the final existing facilities rule is likely to increase the number of
fish, shellfish, and other aquatic organisms in affected water bodies
resulting in healthier aquatic environments. In turn, this healthier
aquatic environment directly improves welfare for individuals using the
affected aquatic resources, generating use benefits such as increases
in the value of recreational and commercial fisheries or increases in
property values. Reductions in impingement mortality and entrainment
also improve welfare for individuals without use of the affected
resources, generating nonuse benefits, such as improved ecosystem
function and resource bequest values. Section D provides an overview of
the types and sources of benefits EPA anticipated, how EPA estimated
these benefits, and the level of benefits that the final rule and other
options EPA considered for the rule would achieve.
---------------------------------------------------------------------------
\141\ See the discussion in Section III on entrainment mortality
data and assumptions.
---------------------------------------------------------------------------
EPA derived national benefit estimates for the final rule and other
options considered from a series of regional studies representing a
range of waterbody types and aquatic resources. Section B provides
detail on the regional study design. Section C describes the
impingement and entrainment effects and Section D presents the national
benefits estimates.
The methodologies used to estimate benefits are largely built on
those used to estimate benefits for the remanded Phase II and Phase III
and the proposed existing facilities rules. In addition to updating
these analyses, EPA more fully investigated the effects of impingement
mortality and entrainment on T&E species, incorporated benefits from
greenhouse gas reductions, and improved its estimation of nonuse
benefits. The Benefits Analysis document for the final existing
facilities rule (referred to as the BA) provides detailed descriptions
of the new methodologies EPA used to analyze the benefits of regulatory
options, and provides references to (i) Part A of the 2004 Regional
Benefits Analysis for the Final Section 316(b) Phase II Rule, and (ii)
Part A of the 2006 Regional Benefits Analysis Document for the Final
Section 316(b) Phase III Existing Facilities Rule for analyses using
similar methodologies.
The BA provides EPA's benefit estimates for the final rule and
considered options. EPA relied on information collected in the 2000
section 316(b) industry surveys (the Industry Screener Questionnaire
(SQ) and the Detailed Industry Questionnaire (DQ)) on cooling water
systems and intake structures already in place to estimate the number
of regulated facilities under regulatory options considered for the
final existing facilities rule. For the analysis of regulated electric
generators, EPA used information from 656 regulated electric generating
facilities that responded to the section 316(b) industry surveys on
cooling water systems and intake structures already in place. Because
the DQs were sent to a sample of the manufacturing industries that use
cooling water, the respondents were assigned sample weights designed to
represent other facilities in other manufacturing industries that were
not covered in the survey. All regulated facilities have a DIF of at
least 2 mgd. EPA estimated regional benefits from the sample of
facilities for which EPA has sufficient DQ information to estimate the
environmental impacts of regulatory options. The environmental impacts
from the set of explicitly analyzed facilities were then extrapolated
to the universe of facilities in a region using statistical weights
developed for this analysis. National benefits are estimated as the sum
of the regional benefits.
As described above at Section IX, the findings presented in this
section assume that all facilities with impoundments will qualify as
having closed-cycle recirculating systems in the baseline. For purposes
of this analysis, EPA did not estimate IM&E reductions for these
facilities under the final rule and other options considered; however,
these facilities remain subject to today's rule and are assigned
administrative costs. To the extent that some of these facilities do
not qualify as having closed-cycle cycle recirculating systems in the
baseline, the monetized benefits reported in this section may be
underestimated. EPA notes that the vast majority of these facilities
occur in the Inland benefits region. Any underestimation in monetized
benefits due to the treatment of facilities with impoundments is likely
to be minor because commercial fishing benefits and nonuse benefits are
not estimated for the Inland region.
B. Regional Study Design
EPA evaluated the benefits of today's rule in seven study
regions.\142\ Regions were defined on the basis of ecological
similarities within regions (e.g., freshwater versus marine, similar
communities of aquatic species), and on characteristics of commercial
and recreational fishing activities. The seven study regions are:
California,\143\ North Atlantic, Mid Atlantic, South Atlantic, Gulf of
Mexico, Great Lakes, and Inland. The five coastal regions EPA
identified (California, North Atlantic, Mid-Atlantic, South Atlantic,
and Gulf of Mexico) correspond to those of the
[[Page 48402]]
National Oceanic and Atmospheric Administration's National Marine
Fisheries Service. The Great Lakes region includes Lake Ontario, Lake
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, Lake
Superior, and the connecting channels (Saint Mary's River, Saint Clair
River, Detroit River, Niagara River, and Saint Lawrence River to the
Canadian border) as defined in 33 U.S.C. 1268, Sec. 118(a)(3)(b). The
Inland region includes all remaining facilities that withdraw water
from freshwater lakes, rivers, and reservoirs, including inland
facilities in coastal states. Notably, of the 435 facilities that are
on freshwater streams or rivers, 30 percent (132) have average actual
intake flow that is greater than 5 percent of the mean annual flow of
the source waters, which is a significant amount of the source water
flow. During periods of low river flow, or during periods of higher
than average withdrawals of cooling water, the proportionate withdrawal
of source waters could be much higher. Thus, the potential for adverse
environmental impacts could increase dramatically during these periods.
The number and total operational intake flow of all 316(b) facilities
by study region are presented in Exhibit X-1.
---------------------------------------------------------------------------
\142\ Benefits associated with changes in greenhouse gas
emissions were estimated for the nation as whole.
\143\ The California region includes facilities in State of
California and four facilities in Hawaii. No coastal facilities are
in Oregon, and one facility in Washington is classified as a
baseline closure.
Exhibit X-1--Number of Surveyed Facilities and Total Mean Operational Flow, by Region
----------------------------------------------------------------------------------------------------------------
Flow (billions of gallons per day)
Number of --------------------------------------------------------
Region surveyed Non-recirculating Recirculating
facilities \a\ facilities \b\ facilities Total flow
----------------------------------------------------------------------------------------------------------------
California \c\...................... 21 10.65 0.00 10.65
Great Lakes......................... 50 16.24 0.24 16.47
Inland \d\.......................... 566 107.56 18.06 125.62
Mid-Atlantic........................ 46 24.69 0.07 24.76
Gulf of Mexico...................... 22 10.14 0.05 10.18
North Atlantic...................... 21 5.93 0.00 5.93
South Atlantic...................... 12 5.91 0.05 5.96
---------------------------------------------------------------------------
All Regions......................... 738 181.12 18.46 199.58
----------------------------------------------------------------------------------------------------------------
\a\ This table presents unweighted facility counts and flow for surveyed facilities (excluding baseline
closures). The regional study design for the benefits analysis uses weights based on flow rather than facility
counts. EPA did not develop weighted facility counts by benefits region. The ``All Regions'' total of 738
surveyed facilities includes 532 electric generating facilities and 206 manufacturing facilities, excluding
baseline closures. The total (weighted) estimated universe of facilities, excluding baseline closures, is
1,065 facilities.
\b\ Recirculating facilities are facilities with closed-cycle cooling or impoundments that qualify as closed-
cycle cooling. Non-recirculating facilities include facilities with CWIS classified as once-through.
\c\ The California region includes four facilities in Hawaii. There are no coastal facilities in Oregon and the
one coastal facility in Washington is classified as a baseline closure.
\d\ A facility in Texas has intakes in both the Inland and Gulf of Mexico regions. It is included in the Inland
region in the table to prevent the double counting of facilities.
EPA obtained estimates of regional impingement mortality and
entrainment by extrapolating impingement mortality and entrainment
observed at 98 facilities with impingement and entrainment studies
(model facilities) to all regulated facilities in the same region. EPA
used regional estimates to more accurately estimate impacts by
accounting for differences in ecosystems, aquatic species, and
characteristics of commercial and recreational fishing activities
across regions. Extrapolation was conducted on the basis of AIF
reported for the period 1996-1998 by facilities in response to EPA's
Section 316(b) Detailed Questionnaire and Short Technical
Questionnaire. Chapter 3 of the BA provides details of the
extrapolation procedure. Because the goal of the analysis was to
provide estimates of impingement mortality and entrainment at regional
and national scales, EPA recognizes that these averages may not reflect
the substantial variability at individual facilities. In spite of this
variability, EPA determined that this extrapolation is a reasonable
basis for developing estimates of regional- and national-level benefits
for the purposes of the final existing facilities rule.
C. Physical Impacts of Impingement Mortality and Entrainment
EPA based the benefits analysis on facility-provided impingement
mortality and entrainment monitoring data. Facility data consist of
records of impinged and entrained organisms sampled at intake
structures and include organisms of all ages and life stages. Sampling
protocols were not standardized across facilities. Facility protocols
differed in sampling methods and equipment used, the number of samples
taken, sampling duration, and the unit of time and volume of intake
flow used to express impingement mortality and entrainment. To
standardize estimates across facilities, EPA converted sampling counts
into annual impingement mortality and entrainment. Using standard
fishery modeling techniques,\144\ EPA constructed models that combined
facility-derived impingement mortality and entrainment counts with life
history data from the scientific literature to derive annual estimates
of the following:
---------------------------------------------------------------------------
\144\ Ricker, W.E. 1975. Computation and interpretation of
biological statistics of fish populations. Fisheries Research Board
of Canada, Bulletin 191; Hilborn, R. and C.J. Walters. 1992.
Quantitative Fisheries Stock Assessment, Choice, Dynamics and
Uncertainty. Chapman and Hall, London and New York; Quinn, T.J., II.
and R.B. Deriso. 1999. Quantitative Fish Dynamics. Oxford University
Press, Oxford and New York; Dixon, D.A. 1999. Catalog of Assessment
Methods for Evaluating the Effects of Power Plant Operations on
Aquatic Communities. Electric Power Research Institute (EPRI) Final
Report. Report number TR-112013.
---------------------------------------------------------------------------
Individuals--the number of individual organisms impinged
and entrained by facility intakes. Under this metric, eggs, larvae,
juvenile, and adult organisms are counted as equivalent individuals.
[[Page 48403]]
A1Es (age-one equivalent losses)--the number of individual
organisms of different ages impinged and entrained by facility intakes,
standardized to equivalent numbers of 1-year-old fish. A conversion
rate between all life history stages and age 1 is calculated using
species-specific survival tables based on life history schedule and
age-specific mortality rates. An individual younger than age 1 is a
fraction of an age-one equivalent; an individual older than age 1
represents more than one age-one equivalent. EPA finds it appropriate
to use the A1E measure because information in the record indicates that
an overwhelming majority of eggs, larvae and juveniles do not survive
into adulthood and the A1E calculations adjust for differences in
survivorship based on species and age-specific mortality rates. EPA
recognizes that using A1Es simplifies a complex ecological situation,
because some of the smaller fish would provide an ecological benefit to
other species as food even if they would not survive to adulthood.
Recognizing this as one nonmonetized benefit in the analysis, using an
A1E approach is the most reasonable approach available because to date,
there is insufficient data to account for the extent to which organisms
that do not survive to adulthood provide a benefit to other organisms
which can be reliably monetized.
Forgone fishery yield--pounds of commercial fish harvest
and numbers of recreational fish and shellfish that are not harvested
because of impingement mortality and entrainment. EPA used the
Thompson-Bell equilibrium yield model \145\ to convert impingement
mortality and entrainment to forgone fishery yield, assuming that (1)
impingement mortality and entrainment reduces the future yield of
harvested adults, and (2) reductions in impingement mortality and
entrainment rates will lead to an increase in harvested biomass. The
general procedure involves multiplying age-specific harvest rates by
age-specific weights to calculate an age-specific expected yield.
---------------------------------------------------------------------------
\145\ Ricker, W.E. 1975. Computation and interpretation of
biological statistics of fish populations. Fisheries Research Board
of Canada, Bulletin 191.
---------------------------------------------------------------------------
Biomass production forgone--biomass that would have been
produced had individuals not been impinged or entrained,\146\
calculated for all species from species- and age-specific growth rates
and survival probabilities. It refers to the mass of impinged and
entrained organisms that would have served as valuable components of
aquatic food webs, particularly as an important food supply to other
aquatic species.
---------------------------------------------------------------------------
\146\ Rago, P.J. 1984. Production forgone: An alternative method
for assessing the consequences of fish entrainment and impingement
losses at power plants and other water intakes. Ecological Modeling,
24(1-2): 79-111.
---------------------------------------------------------------------------
Estimates of forgone fishery yield include direct and indirect
losses of impinged and entrained species that are harvested. Indirect
losses represent the yield of harvested species lost because of
reductions in prey availability according to a simple trophic transfer
model (i.e., forage species).\147\ Chapter 3 of the BA contains
detailed methodology for these analyses.
---------------------------------------------------------------------------
\147\ Indirect losses account for about 10 percent of commercial
and recreational harvest reductions at baseline.
---------------------------------------------------------------------------
Studies from individual facilities may underestimate or
overestimate impingement mortality and entrainment rates at those
facilities. For example, facility studies typically focus on a subset
of fish species affected by impingement mortality and entrainment,
resulting in other species being ignored. The number of individuals
lost to impingement mortality and entrainment is then underestimated.
Estimating the magnitude of this underestimate is not possible because
of the low number of replicate studies. Moreover, studies often do not
count early life stages of organisms that are more difficult to
identify. In addition, many of the impingement mortality and
entrainment studies used by the Agency were conducted more than 30
years ago, prior to the improvement of aquatic conditions that have
resulted from implementation of the CWA as well as State and local laws
and efforts. In locations where water quality was degraded at the time
of impingement mortality and entrainment sampling relative to current
conditions, the abundance and diversity of fish populations might have
been depressed, resulting in low impingement mortality and entrainment
estimates. Therefore, use of these data may underestimate the magnitude
of current impingement mortality and entrainment. Alternatively,
studies could have been conducted in locations where local fish
populations are now lower than they were when the study occurred. Such
a shift in fish populations might have occurred because of natural
variability in populations, because of other anthropogenic effects
(i.e., over-harvesting), or because of competition from invasive
species. In such cases, the use of these data may overestimate the
magnitude of current impingement mortality and entrainment.
EPA's use of linear methods for projecting losses to fish and
shellfish in the waterbody may also overstate or understate impacts.
Nevertheless, the data from facility studies are the best means to
estimate the relative magnitude of impingement mortality and
entrainment nationwide. Exhibit X-2 presents EPA's estimates of
baseline annual impingement mortality and entrainment, and reductions
in annual impingement mortality and entrainment estimated to occur
under the final rule and other options considered. Impingement
mortality and entrainment reductions under the final rule are less than
the reductions under Proposal Option 2 and greater than reductions
under Proposal Option 4. Unlike the analysis of Proposal Option 2, EPA
did not model the entrainment reductions from cooling tower
installation under the final rule and Proposal Option 4 because these
would be based on site-specific determinations of BTA, which are not
possible to predict with information EPA has today. EPA estimated a
small amount of entrainment losses under the final rule and Proposal
Option 4 due to the assumed installation of variable speed pumps at
some facilities to achieve compliance via the low velocity compliance
alternative.
[[Page 48404]]
Exhibit X-2--Baseline Annual IM&E and Annual Reductions in IM&E for Existing Units at All Facilities Subject to
the Final Rule
----------------------------------------------------------------------------------------------------------------
Reduction in annual IM&E by regulatory option
\b\ \c\
Loss mode \a\ ------------------------------------------------ Baseline
Proposal Final rule-- Proposal annual IM&E
option 4 existing units option 2
----------------------------------------------------------------------------------------------------------------
Individuals (millions)
----------------------------------------------------------------------------------------------------------------
IM.............................................. 419.9 441.3 511.9 568.6
E............................................... 399.8 1,693.9 335,447.6 497,316.3
IM&E............................................ 819.7 2,135.2 335,959.4 497,884.8
----------------------------------------------------------------------------------------------------------------
Age-One Equivalents (millions)
----------------------------------------------------------------------------------------------------------------
IM.............................................. 612.8 647.5 748.2 824.2
E............................................... 1.4 4.5 889.3 1,106.7
IM&E............................................ 614.2 652.0 1,637.5 1,931.0
----------------------------------------------------------------------------------------------------------------
Forgone Fishery Yield (million lbs)
----------------------------------------------------------------------------------------------------------------
IM.............................................. 12.6 13.3 15.4 16.9
E............................................... 0.0 0.1 35.7 52.9
IM&E............................................ 12.6 13.4 51.1 69.8
----------------------------------------------------------------------------------------------------------------
Production Forgone (million lbs)
----------------------------------------------------------------------------------------------------------------
IM.............................................. 129.7 136.5 157.2 174.8
E............................................... 0.5 2.4 337.0 451.8
IM&E............................................ 130.3 138.9 494.2 626.6
----------------------------------------------------------------------------------------------------------------
\a\ IM = impingement mortality; E = entrainment; IM&E = impingement mortality and entrainment.
\b\ IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
\c\ The totals presented here do not include IM&E reductions associated with new units. Estimated IM&E
reductions associated with the new unit provision of the final rule are presented in Exhibit X-4.
Exhibit X-3 presents EPA's estimates of annual impingement
mortality and entrainment for final rule and other considered options
by category of fish species. Estimates of annual forgone fishery yield
include both direct losses of harvested species and indirect losses
from reductions in prey fish species. Organisms convert (on average)
only about 10 percent of the mass of food they consume into additional
tissue mass. Thus, although essential to maintain ecosystem function,
the vast majority of biomass moving through food webs does not reach
higher trophic levels associated with commercial and recreational
species and harvest. Instead, the biomass of prey species is
metabolized and used for predator locomotion, reproduction, and tissue
repair. Accordingly, the portion of impingement mortality and
entrainment that are counted within the forgone harvest metric
represent only a small percentage of all organisms experiencing
impingement mortality and entrainment at cooling water intake
structures. Neither forage species nor the unlanded portion of
recreational and commercial species were assigned direct use values in
this analysis, although losses in forage species did contribute to the
overall losses in recreational and commercial species as noted above.
Because the majority of annual impingement mortality and entrainment
include unharvested recreational and commercial fish and forage fish,
considering nonuse values in the final rule benefits analysis is
particularly important. If nonuse values were not considered at all,
only two to three percent of fish losses would be represented in
monetized benefits.
Exhibit X-3--Distribution of Annual Baseline IM&E and Reductions in IM&E by Species Category, for Individual
Organisms and Age-1 Equivalents, at Existing Units for the Final Rule and Options Considered
----------------------------------------------------------------------------------------------------------------
Reduction in IM&E by regulatory option \b\ \c\
------------------------------------------------
IM&E Metric \a\ Proposal Final rule-- Proposal Baseline IM&E
option 4 existing units option 2
----------------------------------------------------------------------------------------------------------------
Individuals (millions)
----------------------------------------------------------------------------------------------------------------
All Species..................................... 819.7 2,135.2 335,959.4 497,884.8
Forage Species.................................. 607.9 1,423.6 224,323.1 325,069.1
Commercial & Recreational Species............... 211.8 711.5 111,636.3 172,815.8
Commercial & Recreational Harvest (millions of 16.1 17.1 44.7 54.0
fish)..........................................
Lost Individuals with Direct Use Value (%)...... 1.97% 0.80% 0.01% 0.01%
----------------------------------------------------------------------------------------------------------------
Age-One Equivalents (millions)
----------------------------------------------------------------------------------------------------------------
All Species..................................... 614.2 652.0 1,637.5 1,931.0
[[Page 48405]]
Forage Species.................................. 528.2 560.8 1,258.7 1,459.7
Commercial & Recreational Species............... 85.9 91.2 378.8 471.3
Commercial & Recreational Harvest (millions of 16.1 17.1 44.7 54.0
fish)..........................................
A1E Losses with Direct Use Value (%)............ 2.63% 2.62% 2.73% 2.80%
----------------------------------------------------------------------------------------------------------------
\a\ IM&E = impingement and entrainment; A1E= age-one equivalent;
\b\ IM&E Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
\c\ The totals presented here do not include IM&E reductions associated with new units. Estimated IM&E
reductions associated with the new unit provision of the final rule are presented in Exhibit X-4.
In addition to the final rule and other options analyzed for
existing units (Proposal Option 4 and Proposal Option 2), EPA analyzed
requirements for new units at existing facilities. EPA's new unit
provision in the final rule establishes entrainment requirements for
all new stand-alone units at existing facilities. EPA could not
directly apply the extrapolation methodology used for existing units
because facility-specific information was not available for new units.
Instead, EPA estimated impingement mortality and entrainment reductions
on the basis of impingement mortality and entrainment reductions per
million gallons per day from the analysis of existing units. The
estimated reduction in impingement mortality and entrainment for the
new unit requirement is summarized in Exhibit X-4.
Exhibit X-4--Annual Reductions in IM&E by Species Category for the Final
Rule for New Units
------------------------------------------------------------------------
Reduction in
IM&E metric \a\ IM&E \b\
------------------------------------------------------------------------
Individuals (millions)
------------------------------------------------------------------------
All Species............................................. 867.2
Forage Species.......................................... 566.1
Commercial and Recreational Species..................... 301.1
Commercial and Recreational Harvest (millions of fish).. 0.1
Lost Individuals with Direct Use Value (%).............. 0.01%
------------------------------------------------------------------------
Age-One Equivalents (millions)
------------------------------------------------------------------------
All Species............................................. 2.3
Forage Species.......................................... 1.7
Commercial and Recreational Species..................... 0.7
Commercial and Recreational Harvest (millions of fish).. 0.1
A1E Losses with Direct Use Value (%).................... 2.87%
------------------------------------------------------------------------
\a\ A1E = age-one equivalent; IM&E = impingement mortality and
entrainment.
\b\ Impingement mortality and entrainment reductions increase throughout
the compliance period. The values presented here reflect the peak
reductions achieved in 2059, the final year of the compliance period.
IM&E Effects: Entrainment requirements for all stand-alone or units.
D. National Benefits of the Final Rule and Options Considered
1. Overview
Economic benefits of the final rule and other options considered
for regulated facilities can be categorized broadly into use and nonuse
benefits of goods and services. Use values include benefits that
pertain to the human use (direct or indirect) of affected fishery
resources. Use values reflect the value of all current direct and
indirect uses of a good or service. Direct use benefits can be further
categorized according to whether affected goods and services are traded
in the market (i.e. commercially captured fish are traded, recreational
catch is not). Likewise, indirect use benefits can be linked to direct
goods and services. For example, reductions in impingement mortality
and entrainment of forage fish will enhance the biomass of species
targeted for commercial (market) and recreational (nonmarket) uses. It
could also affect property values.
Nonuse benefits are those benefits that are independent of any
current or anticipated human use of a resource. Nonuse benefits reflect
human values associated with existence and bequest motives. In other
words, these values reflect the value the public places on something
simply as a result of its existence or natural functioning. EPA
estimated the economic benefits from national regulatory options using
a range of valuation methods. Commercial fishery benefits were valued
using market data. Recreational angling benefits were valued using a
benefits transfer approach based on revealed and stated preference
data. To estimate indirect use benefits from reduced impingement
mortality and entrainment of forage species, EPA used a simple
[[Page 48406]]
trophic transfer model. This model translated changes in impingement
mortality and entrainment of forage fish into changes in the harvest of
commercial and recreational species. All benefits for fish saved under
today's final rule are estimates on the basis of projected numbers of
age-one equivalent fish, converted to harvestable age equivalents on a
species-by-species basis for those commercial species analyzed.
EPA calculated the monetary value of use benefits of the final rule
and other options considered for existing facilities using two discount
rate values: 3 and 7 percent. All dollar values presented are in 2011
dollars. Because avoided fish deaths occur mainly in fish that are
younger than harvestable age (eggs, larvae, and juveniles), the main
benefits from avoided impingement mortality and entrainment would be
realized typically 3 to 4 years after their avoided death. A detailed
description of the approaches used to address this is in Appendix C of
the BA.
Neither forage species nor the unlanded portion of recreational and
commercial species were assigned direct use values in this analysis.
Their potential value to the public is derived from several alternative
sources: Their indirect use as both food and breeding population for
those fish that are harvested; and nonuse value. The nonuse value
includes individuals' WTP (willingness to pay) for the protection of
fish based on a sense of altruism, stewardship, bequest, or vicarious
consumption; and their support of ecosystem stability and function. To
estimate a subset of nonuse benefits from reducing impingement
mortality and entrainment of forage species and unlanded commercial and
recreational species, EPA conducted a benefits transfer using a
nonmarket valuation study of aquatic ecosystem improvements. This
effort generated partial estimates of nonuse values for resource
changes for a species that represents less than one percent of adverse
environmental impacts.
EPA developed and fielded an original stated preference survey to
estimate total WTP for improvements to fishery resources affected by
impingement mortality and entrainment from regulated 316(b) facilities
(75 FR 42438, July 21, 2010). Preliminary results of the stated
preference survey were described in a Notice of Data Availability (77
FR 34927, June 12, 2012). EPA presents preliminary benefits estimates
based on the stated preference survey in the BA to demonstrate progress
on this effort. In the absence of final survey results, EPA estimated
partial nonuse benefits for the final rule using the benefits transfer
approach from proposal. EPA updated the proposal results to incorporate
additional stock assessment data for winter flounder, the species used
as the basis for the analysis. Due to the challenges associated with
estimating nonuse benefits, some nonuse benefits are described only
qualitatively.
2. Timing of Benefits
Discounting refers to the economic conversion of future benefits
and costs to their present values, accounting for the fact that
individuals value future outcomes less than comparable near-term
outcomes. Discounting enables a valid comparison of benefits and costs
that occur across different periods. EPA used discounting to account
for differences in the timing across benefits and costs under the final
rule and options considered. EPA estimated the expected benefits of the
final rule once the rule takes full effect, then used discounting to
account for delays in the realization of benefits. Two different delays
affect the timing of benefits under the final rule and options
considered.
First, facilities will begin to incur costs prior to technology
installation. Facilities will face regulatory requirements once the
rule is effective, but it will take time for requirements to be
developed and for the required technology to be installed. Analyzed
facilities are assigned a technology installation year which considers
facility characteristics and technology being installed. EPA assumed
that facilities installing impingement technology tend to complete
technology installation sooner than facilities installing closed-cycle
cooling (for other options considered). The assignment of technology
installation years is speculative on EPA's part, because EPA does not
have sufficient data on hand to project the schedules that Directors
will set for facilities. See Chapter 3 of the EA document for the final
existing facilities rule for details on EPA's development of technology
installation years. EPA effectively discounts benefits to a greater
extent than costs to account for the lag between the incurrence of
costs and the realization of benefits.
Second, an additional time lag will result between technology
implementation and use values via increased fishery yields. This lag
occurs because several years could pass between the time an organism is
spared from impingement mortality or entrainment and the time of its
potential harvest. For example, a larval fish spared from entrainment
(in effect, at age 0) could be caught by a recreational angler at age
3, meaning that a 3-year time lag arises between the incurred
technology cost and the realization of the estimated recreational
benefit. Likewise, if a 1-year-old fish is spared from impingement and
is then harvested by a commercial waterman at age 2, there is a 1-year
lag between the incurred cost and the subsequent commercial fishery
benefit. To account for this growth period, EPA applied discounting by
species groups in each regional study. Note that nonuse values
(depending on how they are measured) do not necessarily need to be
discounted similarly.
3. Recreational Fishing Valuation
a. Recreational Fishery Methods
To estimate recreational benefits of the final options, EPA
developed a benefits transfer approach on the basis of a meta-analysis
of recreational fishing valuation studies designed to measure the
various factors that determine WTP for catching an additional fish per
trip. Regional benefits are summarized as follows (for details, see
Chapter 7 of the BA):
1. Estimate the annual forgone catch of recreational fish (number
of fish) attributable to impingement mortality and entrainment under
current conditions.
2. Estimate the marginal value per fish using a benefit transfer
function based on a meta-analysis of recreational fishing studies.
3. Multiply the forgone catch by the marginal value per fish to
estimate the total annual value of the forgone catch.
4. Estimate the annual value of reductions in the forgone catch
attributable to the regulatory analysis options.
5. Discount the time path of benefits at 3 and 7 percent to reflect
the time lag between impingement mortality and entrainment reductions
and increased harvests.
b. Estimated Benefits to Recreational Anglers
Decreasing impingement mortality and entrainment increases the
number of fish available to be caught by recreational anglers, thereby
increasing angler welfare. Exhibit X-5 shows the estimated benefits
resulting from reduced impingement mortality and entrainment under
today's final existing facilities rule and other options that EPA
considered. The total annualized recreational fishing benefits for all
regions at existing units of existing facilities for the final rule
(impingement mortality and entrainment combined)
[[Page 48407]]
are $18 million using a 3 percent discount rate and $14 million using a
7 percent discount rate. Annual recreational fishing benefits for other
options considered range from $17 to $43 million using a 3 percent
discount rate and $13 million to $30 million using a 7 percent discount
rate.
Exhibit X-5--Annual Recreational Fishing Benefits From Eliminating or Reducing IM&E at Existing Units at
Existing Facilities for the Final Rule and Other Options Considered
----------------------------------------------------------------------------------------------------------------
Increased harvest 3% discount rate 7% discount rate
Regulatory option \a\ (million fish) (million 2011$) (million 2011$)
----------------------------------------------------------------------------------------------------------------
Proposal Option 4...................................... 6.1 17.1 12.6
Final Rule--Existing Units............................. 6.5 18.2 13.5
Proposal Option 2...................................... 20.5 43.0 29.5
Baseline............................................... 25.3 78.8 72.0
----------------------------------------------------------------------------------------------------------------
\a\ IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
4. Commercial Fishing Valuation
Reductions in impingement mortality and entrainment at cooling
water intake structures are expected to benefit the commercial fishing
industry. By reducing the number of fish killed, the number of fish
available for harvest is expected to increase. The next section
summarizes the methods EPA used to estimate benefits to the commercial
fishing sector. The section after that presents the estimated value of
commercial fishing benefits.
a. Commercial Fishing Valuation Methods
The total loss to the economy from impingement mortality and
entrainment impacts on commercially harvested fish species is
determined by the sum of changes in both producer and consumer surplus.
EPA assumed a linear relationship between stock and harvest, such that
if 10 percent of the current commercially targeted stock were
harvested, 10 percent of the commercially targeted fish lost to
impingement mortality and entrainment would have been harvested absent
impingement mortality and entrainment. The percentage of fish harvested
is based on data of historical fishing mortality rates.
Producer surplus provides an estimate of the economic damages to
commercial fishers, but welfare changes can also be expected to accrue
to final consumers of fish and to commercial consumers (including
processors, wholesalers, retailers, and middlemen) if the projected
increase in harvest is accompanied by a change in price. The analysis
of market impacts involves the following steps (for details, see
Chapter 6 of the BA):
1. Assessing the net welfare changes for fish consumers due to
changes in fish harvest and the corresponding change in fish price.
2. Assessing net welfare changes for fish harvesters due to the
change in total revenue, which could be positive or negative.
3. Calculating the increase in net social benefits when the fish
harvest changes by combining the welfare changes for consumers and
harvesters.
For a more detailed description of the methodology for commercial
fishing, see Chapter 6 of the BA.
b. Commercial Fishing Valuation Results
Exhibit X-6 presents the estimated annual commercial fishing
benefits attributable to the proposed options. The results reported
include the total reduction in losses in pounds of fish, and the value
of this reduction discounted at 3 and 7 percent. Total estimated
annualized commercial fishing benefits for the United States for the
final rule are $0.9 million using a 3 percent discount rate and $0.7
million using a 7 percent discount rate. Annual commercial fishing
benefits for other options considered range from $0.9 million to $3.9
million using a 3 percent discount rate and $0.7 million to $2.7
million using a 7 percent discount rate. EPA estimated the expected
price changes from eliminating baseline levels of impingement mortality
and entrainment and found them to be small, ranging from 0.2 to 2.5
percent.
Exhibit X-6--Annual Commercial Fishing Benefits From Eliminating or Reducing IM&E at Existing Units at Existing
Facilities for the Final Rule and Other Options Considered
----------------------------------------------------------------------------------------------------------------
Increased harvest 3% discount rate 7% discount rate
Regulatory option \a\ (million lbs) (million 2011$) (million 2011$)
----------------------------------------------------------------------------------------------------------------
Proposal Option 4...................................... 5.3 0.9 0.7
Final Rule--Existing Units............................. 5.7 0.9 0.7
Proposal Option 2...................................... 14.0 3.9 2.7
Baseline............................................... 17.3 8.0 7.2
----------------------------------------------------------------------------------------------------------------
\a\ IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
5. Nonuse Benefits
Aquatic organisms with no direct use benefits account for the
majority of cooling water intake structure losses (Exhibit X-3).
Although many individuals may not use a particular waterbody for
recreation or fishing, individuals nevertheless may value improvements
in that waterbody. To quantitatively assess the ecological gains from
the final rule and other options considered, EPA took both of the only
two approaches available for quantifying nonuse benefits--a benefits
transfer approach and a stated
[[Page 48408]]
preference survey. It is not necessary to use a stated preference
survey approach to calculate benefits; however, important nonuse
benefits can be missed by not using a stated preference survey
approach. So EPA took both approaches, but relied on only the benefits
transfer approach for the benefits analysis supporting the final rule.
The benefits transfer approach relies on the existence of previously
published studies with values that can be transferred; in instances
where nonuse is potentially significant, as is the case here,
previously published studies would only include nonuse value if they
adopted a stated preference approach.
EPA used a benefit transfer approach to partially monetize nonuse
benefits associated with reductions in impingement mortality and
entrainment of fish, shellfish, and other aquatic organisms under the
regulatory options for the North Atlantic and Mid-Atlantic benefits
regions. EPA applied estimated values from a study conducted in Rhode
Island; these estimates are likely to be more representative of nonuse
values held by individuals residing in the Northeast United States and
less accurate in other regions. EPA was unable to identify comparable
studies conducted in other regions that could be used to estimate
nonuse values. Chapter 8 of the BA provides further detail on this
analysis.
The preferred techniques used to estimate total values (including
both use and nonuse values), in general, are benefits transfer or to
conduct a stated preference survey. There are many studies in the
environmental economics literature that quantify benefits or WTP
associated with various types of water quality and aquatic habitat
changes. However, none of these studies allows the isolation of non-
market WTP associated with quantified reductions in impingement
mortality and entrainment for forage fish or unlanded portion of
commercial and recreational species.
a. Nonuse Benefits Transfer
EPA identified a recent stated preference survey of Rhode Island
residents that is closely related to the 316(b) policy context. The
study results have been published in multiple scientific journals and
books including Johnston et al.\148\ and Zhao et al.\149\ Both the
Rhode Island study and the present context address policy changes that
increase the number of forage fish in aquatic habitat with unknown
effects on overall fish populations. The Rhode Island study was
developed originally as a case study addressing Rhode Island residents'
preferences for the restoration of migratory fish passage over dams in
Rhode Island's Pawtuxet and Wood-Pawcatuck watersheds. It estimates
nonuse values by asking respondents to consider changes in ecological
indicators reflecting quantity of habitat, abundance of wildlife,
ecological condition, and abundance of migratory fish species. Within
this study, estimated values were based on the relative change in
abundance of fish species most affected by restoration.
---------------------------------------------------------------------------
\148\ Johnston, R.J., E.T. Schultz, E.T., K. Segerson, E.Y.
Besedin, and M. Ramachandran. 2012. Enhancing the content validity
of stated preference valuation: The structure and function of
ecological indicators. Land Economics, 1: 102-120.
\149\ Zhao, M., Johnson, R.J. and Schultz, E.T. 2013. What to
Value and How? Ecological Indicator Choices in Stated Preference
Valuation. Environmental Resource Economics. Published online,
February 8, 2013.
---------------------------------------------------------------------------
Estimating benefit functions from the Rhode Island choice
experiment survey \150\ allows one to distinguish benefits associated
with resource uses from those associated primarily with nonuse motives.
Within the benefit transfer application, WTP is quantified for
increases in non-harvested fish alone on the basis of the implicit
price for migratory fish changes. This transfer holds constant all
effects related to identifiable human uses (e.g., effects on catchable
fish, public access, and observable wildlife). The remaining welfare
effect--derived purely from effects on forage fish with little or no
direct human use--may therefore be most accurately characterized as a
nonuse benefit realized by households.
---------------------------------------------------------------------------
\150\ Johnston, R.J., E.T. Schultz, E.T., K. Segerson, E.Y.
Besedin, and M. Ramachandran. 2012. Enhancing the content validity
of stated preference valuation: The structure and function of
ecological indicators. Land Economics, 1: 102-120; Zhao, M.,
Johnson, R.J. and Schultz, E.T. 2013. What to Value and How?
Ecological Indicator Choices in Stated Preference Valuation.
Environmental Resource Economics. Published online, February 8,
2013.
---------------------------------------------------------------------------
The estimation of nonuse values involved the following steps:
1. Use a model published by Zhao et al.\151\ to estimate household
WTP per percent increase in the number of fish in a given watershed.
The household WTP values reflect a survey version that characterizes
effects on the number of migratory fish passing upstream.
---------------------------------------------------------------------------
\151\ Op cit.
---------------------------------------------------------------------------
2. Calculate the relative change in abundance for the fish species
most affected by the regulation. The structure of the transfer study
dictates that WTP should be evaluated based on the single species that
would experience the greatest relative increase in abundance from
restoration and that WTP estimates from multiple species impacted by
IM&E should not be treated as strictly additive. After reviewing
available stock assessment data, current stock size, and the magnitude
of IM&E, EPA determined winter flounder to be the species likely to
experience the greatest percent increase in abundance among those
species with sufficient stock information to conduct the analysis
within the boundaries of the North Atlantic and Mid-Atlantic benefits
regions. This species is harvested; however, early life stages of
recreational and commercial species may be eaten by other organisms and
therefore have nonuse values.
3. Estimate total household WTP by applying model results for WTP
per percentage of estimated winter flounder impingement mortality and
entrainment. Total regional WTP is the product of household WTP and the
number of households in the affected region (for details, see Chapter 8
of the BA).
b. Estimated Nonuse Benefits for the North Atlantic and Mid-Atlantic
Regions
EPA expects that a decrease in impingement mortality and
entrainment will lead to increased fish abundance in affected water
bodies, thus increasing nonuse benefits. Exhibit X-7 shows the benefits
that would result from reducing impingement mortality and entrainment
through today's final rule and other options considered. Application of
the transfer study requires that the increases be expressed as a
percent improvement relative to a maximum number of fish that could be
supported. EPA calculated estimates of WTP on the basis of the increase
in age-1 equivalent winter flounder relative to the estimated number of
age-1 fish when the stock is at maximum sustainable yield, thus
assuming that the population structure of the current stock is similar
to the larger stock. The total annualized nonuse benefits for the North
Atlantic and Mid-Atlantic regions for the existing unit provision of
the final rule are $1 million using a 3 percent discount rate and $0.8
million using a 7 percent discount rate. For other options considered,
annualized nonuse benefits range from $0.3 to $51 million using a 3
percent discount rate and $0.3 to $37 million using a 7 percent
discount rate.
[[Page 48409]]
Exhibit X-7--Annual Nonuse Benefits From Eliminating or Reducing IM&E at Existing Units at Existing Facilities
in the North Atlantic and Mid-Atlantic Regions for the Final Rule and Options Considered \a\
----------------------------------------------------------------------------------------------------------------
Winter flounder Increased winter
Regulatory option \b\ IM&E (million flounder A1E 3% discount rate 7% discount rate
A1E) abundance (%) (millions 2011$) (millions 2011$)
----------------------------------------------------------------------------------------------------------------
Proposal Option 4................... 0.03 0.02 0.3 0.3
Final Rule--Existing Units.......... 0.08 0.07 1.0 0.8
Proposal Option 2................... 4.78 4.18 51.1 37.3
Baseline............................ 6.23 5.44 99.1 96.9
----------------------------------------------------------------------------------------------------------------
\a\ IM&E = impingement and entrainment; A1E = age-one equivalent.
\b\ IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
c. Stated Preference Survey
EPA conducted a stated preference survey to calculate benefits
associated with minimizing adverse impacts to aquatic ecosystems from
cooling water intakes. Refer to Sections VI.F.1 and X.D.1 for
additional discussion of the stated preference survey. EPA did not rely
on the results of its stated preference survey in estimating the
benefits of today's rule.
6. Threatened and Endangered Species
This section summarizes methods and results of EPA's analysis of
benefits from improved protection of T&E species from today's final
rule and options considered. Chapter 5 of the BA provides further
detail on this analysis.
Even if levels of mortality due to impingement and entrainment from
cooling water intake structures of T&E species are low in absolute
numbers, they may represent a substantial portion of annual
reproduction because of the reduced population levels that cause a
species to be protected. Consequently, impingement mortality and
entrainment may either lengthen recovery time, or hasten the demise of
these species. Adverse effects of cooling water intake structures on
T&E species can occur in several ways:
Populations of T&E species may suffer direct harm as a
consequence of impingement mortality and entrainment.
T&E species may suffer indirect harm if a cooling water
intake structure alters food webs.
Cooling water intake structures can alter habitat
designated as critical to the long-term survival of T&E species.
Consequently, the 316(b) regulation will help preserve threatened
and endangered species.
a. Qualitative Assessment of Impingement Mortality and Entrainment
Impacts on T&E Species
By definition, T&E species are characterized by low population
levels. As such, it is unlikely that these species are recorded in
significant number, if recorded at all, in impingement mortality and
entrainment monitoring studies. Thus, losses are difficult to identify
and quantify in a framework developed for non-listed species.
Consequently, EPA developed a qualitative methodology to estimate the
number of T&E species affected by impingement mortality and
entrainment.
To qualitatively assess the potential for cooling water intake
structure impacts on aquatic T&E species, EPA constructed a database
that assessed the geographical overlap of cooling water intake
structure and habitat used by aquatic T&E species. This database
identified the number of T&E species potentially affected by each
regulated 316(b) facility, and the number of facilities potentially
affecting each T&E species. Additional details are in Chapter 5 of the
BA.
Using this database, EPA found 99 Federally-listed aquatic T&E
species that overlap with at least one covered cooling water intake
structure (an interaction in Exhibit X-8). T&E species included
freshwater, marine, and anadromous fish, freshwater mussels, and sea
turtles. On average, the habitat of each T&E species overlapped with 22
covered facilities (Exhibit X-8), suggesting that the 316(b) rule may
have substantial positive benefits of ensuring the long-term
sustainability and recovery of T&E species.
Exhibit X-8--Number of Regulated 316(b) Cooling Water Intake Structures in Aquatic T&E Species Habitat on a Per-
Species Basis
----------------------------------------------------------------------------------------------------------------
Facilities per T&E species \c\
Subset of affected species \a\ \b\ Species Interactions \b\ -------------------------------------
Avg Max
----------------------------------------------------------------------------------------------------------------
All T&E Species..................... 99 2,158 21.8 103
T&E Freshwater Mussels.............. 53 1,176 21.8 103
T&E Anadromous Fish................. 12 235 19.6 101
T&E Freshwater Fish................. 21 65 3.1 7
T&E Snails.......................... 7 199 28.4 49
Sea Turtles......................... 6 483 80.5 102
----------------------------------------------------------------------------------------------------------------
\a\ Aquatic T&E species includes species listed as threatened or endangered by the U.S. Fish and Wildlife
Service (freshwater) or National Oceanic and Atmospheric Administration National Marine Fisheries Service
(marine). Only aquatic species overlapping with a minimum of one cooling water intake structure are included.
\b\ Each interaction represents an overlap between the range of a T&E species and cooling water intake
structure.
\c\ Avg = average, Max = maximum.
[[Page 48410]]
b. Quantitative Assessment of Impingement Mortality and Entrainment
Impacts on T&E Species
Although difficult to observe and quantify, EPA identified 14 T&E
species with confirmed impingement mortality and entrainment based on
facility impingement mortality and entrainment studies. EPA notes that
some impingement mortality and entrainment studies identifying T&E
losses were conducted prior to the listing of the species under the
ESA. In addition to documented species-level instances of T&E
mortality, EPA identified impingement mortality and entrainment at the
level of genera \152\ when these genera contain a T&E species whose
habitat range overlapped the reporting facility's cooling water intake
structure. Although these are not confirmed impingement mortality and
entrainment of T&E species, they provide evidence that additional T&E
species are likely to be directly affected by impingement mortality and
entrainment. EPA found seven genus-level matches, suggesting that the
14 T&E species suffering impingement mortality and entrainment may be
inaccurate.
---------------------------------------------------------------------------
\152\ Genera is the plural of genus. Genus is the rank superior
to species in taxonomic biological classification. For example, the
genus of Atlantic salmon (Salmo falar) is Salmo.
---------------------------------------------------------------------------
Of the 14 Federally-listed T&E species for which EPA was able to
document losses in impingement mortality and entrainment studies, EPA
was able to quantify impingement mortality and entrainment for two
species (pallid sturgeon and Topeka shiner). The documented impingement
mortality and entrainment occurred before these species were Federally-
listed. Data were either qualitative or of insufficient quality to
quantify local or regional impingement mortality and entrainment for
the remaining 12 Federally-listed T&E species. EPA also quantified
impingement mortality and entrainment for the American paddlefish
(Polyodon spathula), listed by several states as threatened or
endangered under State law, using facility impingement mortality and
entrainment studies. Exhibit X-9 presents EPA's estimates of baseline
annual impingement mortality and entrainment, and reductions in
impingement mortality and entrainment which EPA estimates will occur
under the final rule and other options considered.
Exhibit X-9--Baseline Annual IM&E for T&E Species and Reductions for Existing Units at Existing Facilities
(A1Es) \a\ \b\
----------------------------------------------------------------------------------------------------------------
Final rule--
Species Proposal option 4 existing units Proposal option 2 Baseline
----------------------------------------------------------------------------------------------------------------
Paddlefish \c\...................... 7,930.1 8,245.4 15,659.7 18,841.4
Pallid Sturgeon..................... 65.4 67.6 78.0 89.5
Topeka Shiner....................... 2,910.9 3,009.8 3,471.9 3,984.9
---------------------------------------------------------------------------
Total........................... 10,906.4 11,322.8 19,209.5 22,915.7
----------------------------------------------------------------------------------------------------------------
\a\ IM&E = impingement and entrainment; A1E = age-one equivalent.
\b\ IM&E Effects by Option: Proposal Option 2 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
\c\ The American paddlefish is not a Federally-listed T&E species but is listed as threatened or endangered on
several state lists.
\d\ This analysis is based solely on IM controls.
Impingement mortality and entrainment is only one of many factors
that adversely affect T&E species. Estimating total population impacts
from changes in impingement mortality and entrainment requires
estimates of current populations of these fish and estimates of other
anthropogenic effects which were not readily available for all T&E
species with quantified impingement mortality and entrainment at the
time of this analysis. Therefore, EPA was unable to quantify effects on
T&E populations from the 316(b) regulation.
c. Valuation Methods of T&E Fish Species
EPA had sufficient data from impingement mortality and entrainment
studies to quantify impingement mortality and entrainment estimates for
three T&E species, Topeka shiner, pallid sturgeon, and paddlefish
(Exhibit X-9). Two of these species (pallid sturgeon and paddlefish)
have potential use values. A limited recreational fishery (mostly catch
and release) exists for paddlefish in several states; although
harvesting pallid sturgeon is illegal, the species is sometimes caught
by recreational anglers. EPA estimated recreational use values for
pallid sturgeon and paddlefish by applying transfer values from a
Random Utility Model analysis it conducted to evaluate recreational
fishing benefits of the 316(b) Phase II regulation to quantified
impingement mortality and entrainment (for details, see Chapter 5 of
the BA).
EPA was unable to generate estimates of nonuse values for T&E fish
species because reliable population estimates needed to transfer the
values were unavailable. However, EPA emphasizes that nonuse values for
T&E fish species are likely to be significantly greater than any use
values. Harvest of these species is prohibited, reflecting a societal
judgment that protection and preservation of these species is of
greater value than harvest.
d. Estimated Monetary Benefits From Reduced Mortality of T&E Fish
Species
Exhibit X-10 presents the estimated annualized benefits for a
subset of T&E species. For existing units under the final rule, EPA
estimates total annualized use benefits for T&E species with quantified
impingement mortality and entrainment of $0.4 million using a 3 percent
discount rate and $0.3 million using a 7 percent discount rate. For
other options considered, annualized benefits range from $0.4 to $0.7
million using a 3 percent discount rate and $0.3 to $0.5 million using
a 7 percent discount rate.
[[Page 48411]]
Exhibit X-10--Annual Use Benefits From Eliminating or Reducing IM&E of T&E Species at Existing Units of Existing
Facilities for The Final Rule and Other Options Considered \a\ \b\ \c\
----------------------------------------------------------------------------------------------------------------
Increased harvest 3% discount rate 7% discount rate
Regulatory option (number of fish) (million 2011$) (million 2011$)
----------------------------------------------------------------------------------------------------------------
Proposal Option 4...................................... 7,995.5 0.4 0.3
Final Rule--Existing Units............................. 8,313.0 0.4 0.3
Proposal Option 2...................................... 15,737.7 0.7 0.5
Baseline............................................... 18,930.9 1.2 1.3
----------------------------------------------------------------------------------------------------------------
\a\ IM&E = impingement and entrainment; T&E = threatened and endangered. Values are included for pallid sturgeon
and paddlefish in the Inland region.
\b\ IM&E Effects by Option: Proposal Option 4 = impingement mortality limitations based on modified traveling
screens for all facilities with flow greater than 50 mgd; Final Rule = impingement mortality standards based
on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 = intake flow
commensurate with closed-cycle cooling for facilities that have a DIF of greater than 125 mgd and impingement
mortality limitations based on modified traveling screens for all facilities with flow greater than 2 mgd.
\c\ This analysis is based solely on impingement mortality controls.
EPA notes that the benefit values presented in Exhibit X-10
represent only a fraction of values for T&E species potentially
affected by the final existing facilities rule. The Agency was able to
obtain only use values and for only a small subset of all affected T&E
species. Moreover, because of the nature of T&E species, even a small
increase in population could yield economic and ecological benefits
(e.g., Richardson and Loomis; \153\ Bell et al.; \154\ Berrens et
al.\155\)
---------------------------------------------------------------------------
\153\ Richardson, L., and J. Loomis. 2009. The total economic
value of threatened, endangered and rare species: An updated meta-
analysis. Ecological Economics, 68(5): 1535-1548.
\154\ Bell, K.P., D. Huppert, and R.L. Johnson. 2003.
Willingness to pay for local coho salmon enhancement in coastal
communities. Marine Resource Economics, 18: 15-31.
\155\ Berrens, R.P., P. Ganderton, and C.L. Silva. 1996. Valuing
the protection of minimum instream flow in New Mexico. Journal of
Agricultural and Resource Economics 21(2): 294-309.
---------------------------------------------------------------------------
e. Valuation Methods for T&E Sea Turtles
In addition to estimating values of T&E fish with quantitative
estimates of impingement mortality and entrainment, EPA estimated the
WTP for sea turtle conservation. In this analysis, EPA applied
estimates from a study using a stated preference valuation approach to
estimate total economic value of a management program that reduces the
risk of extinction of loggerhead sea turtles.\156\
---------------------------------------------------------------------------
\156\ Whitehead, J.C. 1993. Total economic values for coastal
and marine wildlife: specification, validity, and valuation issues.
Marine Resource Economics, 8(2): 119-132.
---------------------------------------------------------------------------
Although impingement mortality and entrainment of turtles is
relatively low compared to mortality from shrimp trawling and other
fisheries,\157\ it is known that reducing turtle mortality during
juvenile and subadult life stages can have a substantial positive
effect on population growth.\158\ The marginal change in extinction
probability of sea turtles due to 316(b) regulatory options is likely
to be at least 0.01, or a 1 percent decrease in the probability of
extinction over 25 years. This assessment is based on reports that
impingement mortality and entrainment may result in the loss of more
than 100 turtles per year and because turtle population growth rates
are known to be sensitive to changes in juvenile and subadult life
stages.\159\
---------------------------------------------------------------------------
\157\ Plotkin, P.T., (Ed). 1995. National Marine Fisheries
Service and U. S. Fish and Wildlife Service Status Reviews for Sea
Turtles Listed under the Endangered Species Act of 1973. National
Marine Fisheries Service. Silver Spring, MD.
\158\ Crouse, D.T., L.B. Crowder, and H. Caswell. 1987. A
stated-based population model for loggerhead sea turtles and
implications for conservation. Ecology, 68(5): 1412-1423.
\159\ Ibid.
---------------------------------------------------------------------------
f. Benefits From Reduced Mortality of T&E Sea Turtles
The U.S. range of loggerhead sea turtles includes the Gulf of
Mexico, South Atlantic, Mid-Atlantic, and North Atlantic 316(b)
regions.\160\ To calculate national WTP for an increased 25-year
survival probability of loggerhead sea turtles, EPA assumed the
affected population to include households in States with 316(b)
facilities that are in loggerhead sea turtle habitat. EPA determined
that 54.8 million households would be willing to pay for improved
protection of loggerhead sea turtles. Although incidences of mortality
have been reported at facilities in California, Texas, Florida, South
Carolina, North Carolina, and New Jersey, EPA does not have sufficient
information to quantify total sea turtle losses due to intakes or the
reductions in such losses that might occur from the final rule or
options considered. But as an illustrative example, assuming that the
survival probability of loggerhead sea turtles over 25 years were
increased by 1 percent, and applying a mean household value of $0.37
(2011 dollars), the monetized value would be $19.3 million and $18.8
million using discount rates of 3 percent and 7 percent, respectively.
EPA is presenting these estimates only to demonstrate the potential
range of benefits, and is not including them in national benefits
totals for the final rule and options considered. Actual household
values and total benefits may be higher or lower than these estimates,
with Proposal Option 2 likely to provide substantially greater benefits
than the final rule and Proposal Option 4.
---------------------------------------------------------------------------
\160\ U.S. Fish and Wildlife Service (USFWS) (2010c). ``North
Florida Ecological Services Office: Loggerhead Sea Turtle
(Caretta).'' Available at https://www.fws.gov/northflorida/seaturtles/turtle%20factsheets/loggerhead-sea-turtle.htm.
---------------------------------------------------------------------------
Because EPA does not currently have accurate national estimates of
impingement mortality and entrainment for turtle species, nor are
population models available that estimate the effect of 316(b)
regulation on population size and extinction risk, these estimates are
presented only as an illustrative example and are not included in
national totals.
g. Other Indications of Society's WTP for Protection of T&E Species
Many sources provide information that indicates that society places
significant value on protecting T&E species. These include, but are not
limited to:
The Endangered Species Act of 1973, which provides for the
conservation of T&E species of fish and wildlife. Federal and State
expenditures on T&E species were $593 million during fiscal year 2011
just on protection of those Federally-listed T&E species that have
habitat overlapping cooling water intake structures. This accounted for
68 percent of the $869 million spent on fish, marine reptiles,
crustaceans, corals, clams, aquatic snails and marine mammals listed
under the Endangered Species Act.\161\
---------------------------------------------------------------------------
\161\ U.S. Fish and Wildlife Service. 2012. Federal and State
Endangered and Threatened Species Expenditures. Fiscal Year 2011.
---------------------------------------------------------------------------
[[Page 48412]]
Restrictions on activities in the habitat occupied by T&E
species. For example, water diversions on the San Joaquin-Sacramento
River delta, in place to protect the Delta Smelt (Hypomesus
transpacificus), limit the extraction of water for drinking and
agriculture.
The willingness of individuals to volunteer their time to
conserve T&E species. For example, dozens of organizations recruit
thousands of volunteers every year to participate in sea turtle
conservation and research projects. Volunteers are often required to
undergo substantial training and commit to long hours.
While costs to replace, protect, or enhance stocks, and costs to
users affected by efforts to conserve stocks are not direct measures of
economic benefits, they indicate that society is willing to pay
significant sums to protect and restore populations of T&E species.
Although impingement mortality and entrainment is only one of many
stressors on these species, reducing the amount of impingement
mortality and entrainment could contribute to the recovery of
populations over time, thereby eliminating some costs associated with
conserving T&E species.
7. Assessment of Thermal Discharge Impacts
In addition to reducing total impingement mortality and
entrainment, closed-cycle cooling reduces thermal pollution. Most
retrofit installations of cooling towers at electric generating
facilities have been required by NPDES permits to reduce thermal
discharges. Since thermal discharges are a product of cooling water
intake structures, the impacts of thermal discharges are a relevant
benefit to consider when assessing appropriate technologies to reduce
the effects of cooling water intakes. The installation of technologies,
such as closed-cycle cooling systems, can reduce thermal pollution
significantly. Thermal pollution has long been recognized to cause harm
to the structure and function of aquatic ecosystems. Concerns about the
impacts of thermal discharges are addressed by State water quality
standards that, when implemented through NPDES permits, limit the
amount of heat that can be discharged to a receiving water and result,
in some cases, in technology-based permit conditions. Section 316(a) of
the CWA applies to point sources with thermal discharges. It authorizes
the NPDES permitting authority to impose alternative effluent
limitations for the control of the thermal component of a discharge in
lieu of the effluent limitations that would otherwise be required under
sections 301 or 306 of the CWA. Before such a ``thermal variance'' can
be granted, the permittee must demonstrate that the alternative limit
will assure the protection and propagation of a balanced, indigenous
population of shellfish, fish and wildlife in and on the body of water
into which the discharge is to be made. 40 CFR 125.73(a).
EPA did not quantify nationally the impacts of thermal discharges.
However, numerous studies have shown that thermal discharges may
substantially alter the structure of aquatic communities by modifying
photosynthetic, metabolic, and growth rates. Thermal discharges also
harm aquatic life by reducing levels of dissolved oxygen, altering the
location and timing of fish behavior such as spawning, aggregation, and
migration, and may cause thermal shock-induced mortality for some
species. Adverse temperature effects may also be more pronounced in
aquatic ecosystems that are already subject to other environmental
stressors such as high levels of biochemical oxygen demand, nutrient
and sediment contamination, or pathogens. Within mixing zones, which
often extend several miles downstream from outfalls, thermal discharges
may impair efforts to restore and protect the waterbody. For example,
permit requirements to limit nitrogen discharges in a watershed, and
thereby reduce harmful algal blooms, may be counteracted by thermal
discharges which promote growth of harmful algae. Thermal discharges
may have indirect effects on fish and other vertebrate populations
through increasing pathogen growth and infection rates.
Thermal discharges may thus alter the ecological services, and
reduce the benefits, of aquatic ecosystems that receive heated
effluent. The magnitude of thermal effects on ecosystem services is
related to facility-specific factors, including the volume of the
waterbody from which cooling water is withdrawn and returned, other
heat loads, the rate of water exchange, the presence of nearby refugia,
and the assemblage of nearby fish species.
8. Assessment of Social Cost of Carbon
The social cost of carbon reflects the estimated increase in the
burden of global warming to society in future years due to higher
greenhouse gas (GHG) emissions, measured as CO2 equivalents,
associated with additional energy requirements--energy penalty,
auxiliary energy requirements, and compliance technology installation--
of regulatory options. EPA estimated positive or negative benefits
associated with the social cost of carbon for decreases or increases,
respectively for Proposal Option 4 and Final Rule or Proposal Option 2,
in energy requirements at regulated facilities under the final rule and
other options considered.
EPA's estimates of changes in CO2 emissions were based
on results from the electricity market analysis using IPM.\162\ For
electric generators, EPA estimated the change in CO2
resulting from the energy penalty associated with close-cycle
recirculating technology, auxiliary energy requirement for operating
compliance technology, and technology installation downtime. For
manufacturers, EPA estimated the change in carbon emissions resulting
from the energy penalty and auxiliary energy requirement. For
compliance technology installation downtime at manufacturers, EPA
assumed no change in carbon emissions as the short-term replacement of
energy by electric power generating facilities that would otherwise be
produced at manufacturers could either increase or decrease emissions.
---------------------------------------------------------------------------
\162\ For this analysis, EPA used the Integrated Planning Model
(IPM[supreg]), a comprehensive electricity market optimization model
that assesses such impacts within the context of regional and
national electricity markets.
---------------------------------------------------------------------------
To estimate benefits associated with the reductions in carbon
emissions, EPA used social cost of carbon values calculated from the
2013 document titled, Technical Support Document: Technical Update of
the Social Cost of Carbon for Regulatory Impact Analysis Under
Executive Order 12866, developed by the U.S. Government Interagency
Working Group on Social Cost of Carbon. The Agency used the Working+
Group's annual social cost of carbon values for 2010 through 2050 based
on the 3 percent average discount rate, which EPA has concluded is the
most appropriate discount rate for intergenerational benefits such as
the social cost of carbon. See Chapter 9 of the BA for annual social
cost of carbon values based on discount rates of 2.5, 3 (high) and 5
percent. Benefits for each year of the analysis period were calculated
by multiplying the change CO2 emissions by the SCC value for
that year. Similar to the treatment of other benefits, EPA discounted
all year-specific social cost of carbon values to the beginning of 2013
and calculated an annualized value over 51 years using a 3-percent
discount rate. EPA acknowledges that it is mixing estimates of benefits
categories analyzed at different discount rates, but finds in this
[[Page 48413]]
case that using different discount rates is justified by the
intergenerational nature of the social cost of carbon, for purposes of
the sensitivity analysis based on a 7 percent discount rate to discount
other benefit categories.
Exhibit X-11 presents annualized benefits for existing units for
the final rule and options considered. Included in the monetized
benefits is EPA's estimate that the final rule will reduce greenhouse
gas emissions by 9.3 million tons of CO2-equivalent
emissions over the 40-year compliance period for this analysis. Both
the final rule and Proposal Option 4 result in a net reduction in
CO2 emissions for existing units during the analysis period.
Proposal Option 2 would result in a net increase in emissions and
negative benefits for existing units. Using a 3 percent discount rate,
annualized benefits under the final rule for existing units are $12
million. Using a 7 percent discount rate, annualized benefits under
final rule for existing units are $13 million.
Exhibit X-11--Benefits Associated With Social Cost of Carbon for
Existing Units for the Final Rule and Other Options Considered
[In millions of 2011 dollars] \a\
------------------------------------------------------------------------
3% Discount 7% Discount
Regulatory option \b\ rate rate
------------------------------------------------------------------------
Proposal Option 4............................. 12.4 13.4
Final Rule--Existing Units.................... 12.4 13.4
Proposal Option 2............................. -1,643.1 -1,218.2
------------------------------------------------------------------------
\a\ Benefits are based on the workgroup's average social cost of carbon
values using 3 percent rate.
9. Benefits for New Units
In addition to the final rule and other options considered for
existing units, EPA analyzed the benefits of the requirements for new
units at existing facilities. EPA could not directly apply the benefits
methodology used for IM&E (impingement mortality and entrainment)
reductions at existing units to new units because it lacks facility-
specific information to estimate regional impingement mortality and
entrainment reductions for new units. Instead, EPA estimated benefits
associated with IM&E reductions for the new unit requirements on the
basis of the monetary benefits per million gallons per day from the
analysis of existing units. EPA also estimated benefits associated with
changes in GHG emissions as the result of the energy penalty associated
with operating cooling towers using the social cost of carbon. Exhibit
X-12 below presents the estimates of monetized benefits for the new
unit requirements. Monetized benefits are -$0.2 million discounted at 3
percent and -$0.1 million discounted at 7 percent.
Exhibit X-12--National Benefits Under the Final Rule for New Units at Existing Facilities
[In 2011 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monetized benefit categories
-----------------------------------------------------------------------------------------------
Regulatory option \a\ Recreational Commercial T&E species Social cost of
fishing fishing Nonuse \b\ carbon \c\ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
3% discount rate (millions 2011$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule--New Units................................... 0.0 0.0 0.1 0.0 -0.3 -0.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
7% discount rate (millions 2011$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule--New Units................................... 0.0 0.0 0.0 0.0 -0.2 -0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ IM&E Effects: Final Rule--New Units--entrainment requirements for all stand-alone facilities.
\b\ Benefits estimates for T&E species are restricted to recreational fishing benefits from increased catch of T&E species. They do not include benefits
for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species.
\c\ Benefits are based on the Work Group's average social cost of carbon values using the 3 percent rate.
10. National Monetized Benefits
Quantifying and monetizing reductions in impingement mortality and
entrainment attributable to the final rule and other options considered
is challenging. National benefit estimates are subject to uncertainties
inherent in valuation approaches used to assess the benefits categories
(see Chapters 5, 6, 7, 8, 9, and 12 of the BA). While EPA has no data
to indicate that the results for each benefit category are atypical or
unreasonable, some potentially significant benefit categories have not
been fully monetized, and thus the national monetized benefits
presented below likely underestimate total benefits.
Exhibit X-13 presents EPA's estimates of the partial monetized
benefits from impingement mortality and entrainment reduction and the
social cost of carbon for the final rule and other options considered.
These monetized values represent use values from increased commercial
and recreational catch, benefits transfer of recreational fishing
benefits of threatened and endangered species, nonuse values associated
with an increase in fish abundance (those fish that are not caught) in
the Northeast and Mid-Atlantic benefit regions, and national benefits
estimates associated with the social cost of carbon. For the final rule
for existing and new units, partial estimated benefits from reducing
impingement mortality and entrainment at existing units are $33 million
using a 3 percent discount rate and $29 million using a 7 percent
discount rate. EPA was not able to fully monetize the benefits for the
final rule. Thus, the estimates represent a conservative (i.e., low)
estimate of total regulatory benefits of the final rule.
[[Page 48414]]
Exhibit X-13--Summary of National Benefits for All Regulated Facilities for the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monetized benefit categories
-----------------------------------------------------------------------------------------------
Regulatory option \a\ Recreational Commercial T&E species Social cost of
fishing fishing Nonuse \b\ carbon \c\ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
3% discount rate (millions 2011$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule--Existing Units.............................. 18.2 0.9 1.0 0.4 12.4 33.0
Final Rule--New Units................................... 0.0 0.0 0.1 0.0 -0.3 -0.2
Final Rule (Existing Units + New Units)................. 18.3 0.9 1.1 0.4 12.1 32.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
7% discount rate (millions 2011$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule--Existing Units.............................. 13.5 0.7 0.8 0.3 13.4 28.7
Final Rule--New Units................................... 0.0 0.0 0.1 0.0 -0.2 -0.1
Final Rule (Existing Units + New Units)................. 13.5 0.7 0.9 0.3 13.2 28.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ IM&E Effects: Final Rule-Existing Units = impingement mortality standards based on modified traveling screens for all facilities with flow greater
than 2 mgd; Final Rule-New Units: Entrainment requirements for all stand-alone facilities where the turbine and condenser are newly built or replaced.
\b\ Benefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from T&E species. They do not include
benefits for reduced mortality of T&E sea turtles and other nonuse values associated with T&E species.
\c\ Baseline does not include potential benefits associated with the social cost of carbon.
Exhibit X-14 presents total monetized benefits for the final rule
and other options EPA considered for existing units by benefit category
using a 3 percent discount rate. Annual monetized benefits are slightly
higher for the final rule than Proposal Option 4, and are negative for
Proposal Option 2. Including both existing and new units, annual
monetized benefits are $32.8 million for the final rule, $30.8 million
for Proposal Option 4 and -$1,542.8 million for Proposal Option 2.
Exhibit X-14--Summary of National Benefits for All Regulated Facilities for the Final Rule and Other Options EPA
Considered
[3% Discount rate]
----------------------------------------------------------------------------------------------------------------
Annual benefits by regulatory option \a\ (millions
2011$)
Monetized benefit categories -----------------------------------------------------
Proposal option Final rule-- Proposal option
4 existing units 2
----------------------------------------------------------------------------------------------------------------
Existing Units
----------------------------------------------------------------------------------------------------------------
Recreational Fishing...................................... 17.1 18.2 43.0
Commercial Fishing........................................ 0.9 0.9 3.9
Nonuse.................................................... 0.3 1.0 51.1
T&E Species \b\........................................... 0.4 0.4 0.7
Social Cost of Carbon..................................... 12.4 12.4 -1,641.3
-----------------------------------------------------
Total................................................. 31.0 33.0 -1,542.6
----------------------------------------------------------------------------------------------------------------
Final Rule--New Units
----------------------------------------------------------------------------------------------------------------
Total................................................. -0.2 -0.2 -0.2
----------------------------------------------------------------------------------------------------------------
Existing and New Units
----------------------------------------------------------------------------------------------------------------
Total................................................. 30.8 32.8 -1,542.8
----------------------------------------------------------------------------------------------------------------
\a\ IM&E Effects: Proposal Option 4 = impingement mortality limitations based on modified traveling screens for
all facilities with flow greater than 50 mgd; Final Rule--Existing Units = impingement mortality limitations
based on modified traveling screens for all facilities with flow greater than 2 mgd; Proposal Option 2 =
impingement mortality limitations based on modified traveling screens for all facilities with flow greater
than 2 mgd and entrainment mortality limitations commensurate with closed-cycle recirculating systems for all
facilities with flow greater than 125 DIF; Final Rule--New Units: entrainment requirements for all stand-alone
facilities.
\b\ Benefits estimates for T&E species are restricted to benefit transfer of recreational fishing benefits from
T&E species. They do not include benefits for reduced mortality of T&E sea turtles and other nonuse values
associated with T&E species.
EPA recognizes that its estimates of ecological and economic benefits
projected to occur under regulation are affected by uncertainty at many
levels.
Not all ecological goods and services affected by cooling
water intake structures at regulated 316(b) facilities are modeled or
monetized, suggesting that the total benefits of regulation may be
underestimated. For example, potential increases in ecosystem stability
that might occur as a result of regulation is not explicitly estimated
nor monetized.
When particular ecological goods and services are
monetized, data is not always available at the national level. For
example, EPA was only able to estimate the nonuse benefits transfer for
a species that represents less than one
[[Page 48415]]
percent of adverse environmental impacts.
For the proposed rule, EPA used a habitat-based method to
assess potential WTP for reducing fish mortality at CWIS based on the
approximate area of habitat required to produce and support the number
of organisms lost to impingement mortality and entrainment.\163\ EPA
did not consider the habitat-based approach appropriate for primary
analysis of benefits for the proposed rule, and did not include it in
its analysis for the final rule. However, the results for the proposed
rule illustrate that total benefits may be substantially greater than
benefits estimated using the methodologies described in Section D.
---------------------------------------------------------------------------
\163\ U.S. EPA. 2011. Environmental and Economic Benefits
Analysis for the Proposed Section 316(b) Existing Facilities Rule.
---------------------------------------------------------------------------
Because EPA was able to only partially monetize nonuse benefits
using the benefits transfer approach, EPA expects that the actual
benefits will be greater than those presented here.
XI. Related Acts of Congress, Executive Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under section 3(f)(1) of E.O. 12866 (58 FR 51735, October 4, 1993),
this action is an economically significant regulatory action because it
is likely to have an annual effect of $100 million or more on the
economy. Accordingly, EPA submitted this action to the Office of
Management and Budget for review under E.O. 12866 and 13563 (76 FR
3821, January 21, 2011), and any changes made in response to Office of
Management and Budget recommendations have been documented in the
docket for this action.
In addition, EPA prepared an analysis of the costs and benefits
associated with this action; this analysis is discussed in detail in
the Chapter 8 of the EA. A copy of the EA is available in the docket
for this action, and the analysis is briefly summarized here.
Exhibit XI-1 (drawn from Chapter 8 of the EA) provides the results
of the benefit-cost analysis.\164\ Placeholders for option-specific
non-monetized benefits are represented by BP4 for Proposal
Option 4, BFR for the final rule and BP2 for
Proposal Option 2. While preliminary, and not yet reviewed by EPA's
Science Advisory Board, the preliminary results of EPA's stated
preference survey (see BA, Chapter 11) suggest that BP4,
BFR, and BP2 have the potential to be
significantly different from zero. EPA is therefore using placeholders
for additional benefits that are not captured by its analysis of use
benefits and the benefits transfer for nonuse benefits. However, EPA
did not rely on the results of its stated preference survey in
estimating the benefits of today's rule. EPA has concluded that the
benefits of the rule justify the costs.
---------------------------------------------------------------------------
\164\ The costs and benefits presented in this section assume
that facilities with impoundments will qualify as having closed-
cycle recirculating systems in the baseline EPA also conducted the
costs and impacts analysis where impoundments were not assumed to
meet the definition of closed-cycle recirculating. EPA did not find
that this assumption would change EPA's final rule decision; see DCN
12-2501.
---------------------------------------------------------------------------
EPA also analyzed the employment effects of the final rule and
other options considered in development of this rule. The results of
that analysis are summarized in Section IX.E of this preamble and
Chapter 9 of the EA.
Exhibit XI-1--Annualized Benefits and Costs of the Regulatory Options
[In millions, 2011 dollars] \a\
------------------------------------------------------------------------
Total social
Option costs \b\ Benefits \c\
------------------------------------------------------------------------
Proposal Option 4................... $251.8 $31.0 + BP4
Final Rule.......................... 274.9 32.8 + BFR
Proposal Option 2................... 3,643.2 -1,542.6 + BP2
------------------------------------------------------------------------
\a\ Social costs and benefits were annualized over 51 years and
discounted using 3 percent rate.
\b\ Total social costs include compliance costs to facilities and
government administrative costs. See EA Chapter 7.
\c\ Benefits include social cost of carbon from changes in greenhouse
gas emissions due to the final rule.
B. Paperwork Reduction Act
The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
supporting statement in EPA's information collection request estimates
the burden to permitted facilities; burden is defined at 5 CFR
1320.3(b). The 60-day comment period will commence after publication of
the draft ICR. The information collection requirements are not
enforceable until they are approved by OMB.
Today's rule requires several distinct types of information
collection as part of the NPDES permit application. In general, the
information will be used to assist EPA in regulating environmental
impacts, namely impingement mortality and entrainment, at cooling water
intake structures and to identify how a cooling water intake structure
at an existing facility or a new unit at an existing facility will meet
the impingement mortality and entrainment requirements. Today's rule
also requires other reporting and recordkeeping requirements to
demonstrate and document compliance with the requirements. Compliance
with the applicable information collection requirements established
under this final rule is mandatory (see Sec. Sec. 122.21(r), 125.136,
125.137, 125, and 138).
EPA does not consider the specific data that will be collected
under this final rule to be confidential business information. However,
if a respondent does consider this information to be confidential, the
respondent may request that such information be treated as
confidential. All confidential data submitted to EPA will be handled in
accordance with 40 CFR 122.7, 40 CFR part 2, and EPA's Security Manual
Part III, Chapter 9, dated August 9, 1976.
This final rule modifies regulations at Sec. 122.21 to require
each existing facility and new unit at an existing facility to prepare
and submit information as part of the facility's NPDES permit
application. A detailed list of required data items is provided below.
EPA estimates an average annual burden of 634,596 hours for the
final rule's information collection requirements. Of this total, EPA
estimates that 1,068 regulated facilities
[[Page 48416]]
will incur an annual average burden of 588 hours per respondent (for a
total of 627,666 burden hours). EPA estimates that Directors in 46
States and one territory with NPDES permitting authority, will incur an
annual average burden for the review, oversight, and administration of
the rule, of 6,930 hours, or an annual average of 147 hours per
permitting authority. Slight differences in calculations are due to
rounding.
The corresponding estimate of costs other than labor (labor and
non-labor costs are included in the total cost of the final rule
discussed in Section IX of this preamble) during the first three years
after promulgation of the rule is an annual average of $8.5 million.
Non-labor costs include activities such as capital costs for sampling
equipment, remote monitoring devices, laboratory services,
photocopying, and the purchase of supplies. The burden and costs are
for the information collection, reporting, and recordkeeping
requirements for the three-year period beginning with the assumed
effective date of this rule. Additional information collection
requirements will occur after this initial three-year period as (1)
existing facilities will continue to gather and submit required permit
application materials and (2) new units at existing facilities commence
operations and are issued permits.
Information and studies to be submitted under this final rule (as
required by Sec. Sec. 122.21(r) and 125.95) by existing facilities and
new units at existing facilities are listed below. For more
information, see Section VIII in the preamble.
Source Water Physical Data (Sec. 122.21(r)(2))
Cooling Water Intake Structure Data (Sec. 122.21(r)(3))
Source Water Baseline Biological Characterization Data
(Sec. 122.21(r)(4))
Cooling Water System Data (Sec. 122.21(r)(5))
Chosen Method of Compliance With Impingement Mortality
Standards (Sec. 122.21(r)(6))
Performance Studies (Sec. 122.21(r)(7))
Operational Status (Sec. 122.21(r)(8))
Entrainment Characterization Study (Sec. 122.21(r)(9))
Comprehensive Technical Feasibility and Cost Evaluation
Study (Sec. 122.21(r)(10))
Benefits Valuation Study (Sec. 122.21(r)(11))
Non-Water Quality and Other Environmental Impacts Study
(Sec. 122.21(r)(12))
In addition to the information requirements of the permit
application, NPDES permits normally specify monitoring and reporting
requirements to be met by the permitted entity. Existing facilities and
new units at existing facilities are required to perform monitoring as
determined by the requirements in Sec. 125.94 and in accordance with
Sec. Sec. 125.96 and 125.97.
Finally, in accordance with Sec. 125.95(e), facilities are
required to maintain records of all submissions that are part of its
permit application for a minimum of five years. If the Director
approves a request for reduced permit application studies under Sec.
125.95(a) or Sec. 125.98(g), the facility must keep records of all
submissions that are part of a previous permit application for an
additional five years. Also, facilities must keep records of all
submissions that are part of the permit reporting requirements for a
period of at least five years from the date of permit issuance, in
accordance with Sec. 125.97(d).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
1. Definition of Small Entities and Estimation of the Number of Small
Entities Subject to Today's Final Regulation
For EPA's assessment of the impact of today's final rule on small
entities, small entity is defined as either (1) a small business as
defined by SBA (Small Business Administration) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of fewer than 50,000; or (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field. Federal or State entities owning
regulated facilities are not small entities.
EPA performed this assessment separately for the two classes of
facilities and their owner entities--electric generators and
manufacturers--that are subject to today's rule.
a. Electric Generators
EPA followed the SBA criteria for identifying small, non-government
entities in the electric power industry, as follows:
For non-government entities with electric power generation
as a primary business, small entities were designated using employment
size thresholds specific to each 6-digit NAICS code.
For government entities other than Federal or State
governments, small entities are those with a population of fewer than
50,000.
For entities with a primary business other than electric
power generation, the relevant size criteria are based on revenue or
number of employees by NAICS sector (see Exhibit XI-2).
Exhibit XI-2--NAICS Codes and SBA Entity Size Standards for Entities That Own Electric Generators With a Primary
Business Other Than Electric Power Generation
----------------------------------------------------------------------------------------------------------------
NAICS code NAICS description SBA size standard
----------------------------------------------------------------------------------------------------------------
212111.............................. Bituminous Coal and Lignite 500 employees.
Surface Mining.
221210.............................. Natural Gas Distribution...... 500 employees.
331110.............................. Iron and Steel Mills and 1,000 employees.
Ferroalloy Manufacturing.
331315.............................. Aluminum Sheet, Plate, and 750 employees.
Foil Manufacturing.
333611.............................. Turbine and Turbine Generator 1,000 employees.
Set Units Manufacturing.
488320.............................. Marine Cargo Handling......... $35.5 million in revenue.
491110.............................. Postal Service................ $7 million in revenue.
522110.............................. Commercial Banking............ $175 million in assets.
523910.............................. Miscellaneous Intermediation.. $7 million in revenue.
524126.............................. Direct Property and Casualty 1,500 employees.
Insurance Carriers.
[[Page 48417]]
525910.............................. Open-End Investment Funds..... $7 million in revenue.
525990.............................. Other Financial Vehicles...... $7 million in revenue.
541990.............................. All Other Professional, $14 million in revenue.
Scientific, and Technical
Services.
551112.............................. Offices of Other Holding $7 million in revenue.
Companies.
562212.............................. Solid Waste Landfill.......... $35.5 million in revenue.
562219.............................. Other Nonhazardous Waste $35.5 million in revenue.
Treatment and Disposal.
562920.............................. Materials Recovery Facilities. $19 million in revenue.
611310.............................. Colleges, Universities, and $25.5 million in revenue.
Professional Schools.
----------------------------------------------------------------------------------------------------------------
EPA conducted this analysis for the same set of parent entities it
analyzed in the general entity-level cost-to-revenue analysis discussed
in Section IX.D. To determine whether these are small entities on the
basis of the size criteria outlined above, EPA compared the relevant
measure for the identified parent entities to the appropriate SBA size
criterion. EPA conducted this analysis using (1) facility-level weights
without using entity-level weights, and (2) entity-level weights
without using facility-level weights (for information on these two
weighting approaches, see Appendix H of the EA).
EPA estimates that between 31 and 52 small entities own electric
generators that are subject to the rule. They represent approximately
25 to 32 percent of entities that own electric generators (see Exhibit
XI-3).
Exhibit XI-3--Number of Entities That Own Electric Generators, by Ownership Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Using facility-level weights Using entity-level weights \b\
Ownership type \a\ -----------------------------------------------------------------------------------------------
Total Small % Small Total Small % Small
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cooperative............................................. 13 11 84.6 21 18 85.7
Federal................................................. 1 0 0.0 1 0 0.0
Investor-owned.......................................... 57 6 10.5 60 7 11.7
Municipality............................................ 19 7 36.8 38 19 50.0
Nonutility.............................................. 26 7 26.9 30 8 26.7
Other Political Subdivision............................. 4 0 0.0 6 0 0.0
State................................................... 3 0 0.0 3 0 0.0
All Entity Types........................................ 123 31 25.2 159 52 32.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ State and Federal entities are considered large.
\b\ In addition to the 52 small parent entities on an unweighted basis, one additional entity is an ``other political subdivision entity'' for a total
of 53. This entity owns only implicitly analyzed facilities; consequently, there is no explicitly analyzed entity in the other political subdivision
ownership category to represent this implicitly analyzed small parent entity. As the result, weighted entity counts do not include one small other
political subdivision entity.
b. Manufacturers
EPA also used the SBA criteria for identifying small, non-
government entities in the manufacturing sector. Exhibit XI-4 lists the
SBA size threshold guidelines for entities that own manufacturers.
Exhibit XI-4--NAICS Codes and SBA Entity Size Standards for Entities That Own Manufacturers
----------------------------------------------------------------------------------------------------------------
NAICS code NAICS description SBA size standard
----------------------------------------------------------------------------------------------------------------
111930....................... Sugarcane Farming............ $0.75 million in revenue.
113110....................... Timber Tract Operations...... $7 million in revenue.
211111....................... Crude Petroleum and Natural 500 employees.
Gas Extraction.
212210....................... Iron Ore Mining.............. 500 employees.
212391....................... Potash, Soda, and Borate 500 employees.
Mineral Mining.
221122....................... Electric Power Distribution.. 4,000,000 MWh of electric generation.
311221....................... Wet Corn Milling............. 750 employees.
311314....................... Cane Sugar Manufacturing..... 750 employees.
311313....................... Beet Sugar Manufacturing..... 750 employees.
311942....................... Spice and Extract 500 employees.
Manufacturing.
313210....................... Broadwoven Fabric Mills...... 1,000 employees.
321113....................... Sawmills..................... 500 employees.
322121....................... Paper (except Newsprint) 750 employees.
Mills.
322122....................... Newsprint Mills.............. 750 employees.
322130....................... Paperboard Mills............. 750 employees.
322211....................... Corrugated and Solid Fiber 500 employees.
Box Manufacturing.
322220....................... Paper Bag and Coated and 500 employees.
Treated Paper Manufacturing.
322291....................... Sanitary Paper Product 500 employees.
Manufacturing.
324110....................... Petroleum Refineries......... 1,500 employees.
[[Page 48418]]
324191....................... Petroleum Lubricating Oil and 500 employees.
Grease Manufacturing.
325120....................... Industrial Gas Manufacturing. 1,000 employees.
325180....................... Other Basic Inorganic 1,000 employees.
Chemical Manufacturing.
325199....................... All Other Basic Organic 1,000 employees.
Chemical Manufacturing.
325211....................... Plastics Material and Resin 750 employees.
Manufacturing.
325311....................... Nitrogenous Fertilizer 1,000 employees.
Manufacturing.
325320....................... Pesticide and Other 500 employees.
Agricultural Chemical
Manufacturing.
325412....................... Pharmaceutical Preparation 750 employees.
Manufacturing.
325510....................... Paint and Coating 500 employees.
Manufacturing.
325992....................... Photographic Film, Paper, 500 employees.
Plate and Chemical
Manufacturing.
325998....................... All Other Miscellaneous 500 employees.
Chemical Product and
Preparation Manufacturing.
331110....................... Iron and Steel Mills and 1,000 employees.
Ferroalloy Manufacturing.
331210....................... Iron and Steel Pipe and Tube 1,000 employees.
Manufacturing from Purchased
Steel.
331221....................... Rolled Steel Shape 1,000 employees.
Manufacturing.
331222....................... Steel Wire Drawing........... 1,000 employees.
331313....................... Alumina Refining and Primary 1,000 employees.
Aluminum Production.
331315....................... Aluminum Sheet, Plate and 750 employees.
Foil Manufacturing.
331410....................... Nonferrous Metal (except 1,000 employees.
Aluminum) Smelting and
Refining.
332312....................... Fabricated Structural Metal 500 employees.
Manufacturing.
337910....................... Mattress Manufacturing....... 500 employees.
339999....................... All Other Miscellaneous 500 employees.
Manufacturing.
423310....................... Lumber, Plywood, Millwork, 100 employees.
and Wood Panel Merchant
Wholesalers.
423930....................... Recyclable Material Merchant 100 employees.
Wholesalers.
424510....................... Grain and Field Bean Merchant 100 employees.
Wholesalers.
424690....................... Other Chemical and Allied 100 employees.
Products Merchant
Wholesalers.
424710....................... Petroleum Bulk Stations and 100 employees.
Terminals.
447190....................... Other Gasoline Stations...... $14 million in revenue.
522220....................... Sales Financing.............. $7 million in revenue.
523910....................... Miscellaneous Intermediation. $7 million in revenue.
523930....................... Investment Advice............ $7 million in revenue.
524126....................... Direct Property and Casualty 1,500 employees.
Insurance Carriers.
525990....................... Other Financial Vehicles..... $7 million in revenue.
531110....................... Lessors of Residential $25 million in revenue.
Buildings and Dwellings.
551112....................... Offices of Other Holding $7 million in revenue.
Companies.
561110....................... Office Administrative $7 million in revenue.
Services.
----------------------------------------------------------------------------------------------------------------
Similar to the analysis conducted for electric generators, EPA
conducted this analysis for the same set of parent entities as analyzed
in the general, entity-level, cost-to-revenue analysis discussed in
Section IX.D. To determine which entities are small, EPA compared the
relevant measure for the identified parent entities to the appropriate
SBA size criterion. EPA used two sample-weighting schemes in this
analysis; these provide a range of counts of small entities that own
regulated facilities and the number of regulated facilities that they
own that will incur costs under the final rule. EPA does not find
either of these sample-weighting schemes to be superior to the other in
the quality of the resulting estimates of small entity counts and
occurrence of impacts. The different weighting approaches reflect the
fact that EPA used sample facilities for the impact analysis and lacks
precise information on the profile of ownership of the total population
of regulated manufacturers facilities--in terms of the number of small
entities owning regulated facilities and the number of regulated
facilities that any small entity would own. EPA developed the weighting
schemes using alternative bounding assumptions about the profile of
ownership of regulated facilities by small entities. The weighting
schemes provide lower and upper bound estimates of the numbers of small
entities, and the numbers of regulated facilities that they own, and
accordingly, the number of small entities in each of the cost-to-
revenue impact categories (for information on the weighting schemes,
see Appendix H of the EA).
From this analysis, EPA estimates that 17 to 52 small entities own
regulated facilities in the six Primary Manufacturing Industries,
representing approximately 16 percent of all entities that own
regulated facilities in these industries (see Exhibit XI-5).The
presence of small entities varies by industry sector.
Exhibit XI-5--Number of Small Entities That Own Regulated Facilities, by Industry
----------------------------------------------------------------------------------------------------------------
Lower-bound estimate of number of Upper-bound estimate of number of
entities that own regulated entities that own regulated
Industry facilities facilities
-----------------------------------------------------------------------------
Total Small % Small Total Small % Small
----------------------------------------------------------------------------------------------------------------
Aluminum.......................... 4 2 50.0 11 4 40.6
Chemicals and Allied Products..... 30 5 16.7 121 21 17.7
Food and Kindred Products......... 6 0 0.0 20 0 0.0
Paper and Allied Products......... 37 7 18.9 104 23 21.8
Petroleum Refining................ 16 2 12.5 25 2 8.4
[[Page 48419]]
Steel............................. 13 1 7.7 32 2 5.2
Multiple Industries \a\........... 4 0 0.0 14 0 0.0
-----------------------------------------------------------------------------
Primary Manufacturing 110 17 15.5 327 52 16.0
Industries \b\--Total........
----------------------------------------------------------------------------------------------------------------
\a\ These are small entities that own regulated facilities from multiple industries.
\b\ EPA did not compile comparable information for Other Industries facilities and the entities that own them
because it did not have a statistically valid sample of facilities from which to develop such estimates.
c. Total Number of Small Entities That Own Regulated Facilities
EPA estimates that between 48 and 104 small entities own regulated
facilities in the electric power industry and six primary manufacturing
industries together.
2. Statement of Basis
As described above, EPA began the small entity impact assessment by
first estimating the number of small entities in the two industry
segments subject to the final rule: Electric generators and
manufacturers. EPA next assessed whether these small entities would be
expected to incur costs that constitute a significant impact and,
finally, assessed whether those entities represent a substantial number
of small entities.
EPA summed annualized after-tax compliance costs for regulated
facilities that are assumed to be owned by a given small entity and
calculated the costs as a percentage of entity revenue (cost-to-revenue
test). EPA compared the resulting percentages to impact criteria of 1
and 3 percent of revenue. EPA assumed that small entities estimated to
incur costs below 1 percent of revenue will not face significant
economic impacts, while small entities with costs of at least 1 percent
of revenue have a chance of facing economic impacts. EPA assumed that
entities incurring costs of at least 3 percent of revenue have a higher
likelihood of economic impacts.
For both electric generators and manufacturers, EPA used sample-
weighting approaches that provide a range of estimates of the numbers
of small entities and regulated facilities that they own.
Exhibit XI-6 summarizes the Regulatory Flexibility Act analysis
results under both weighting approaches for each regulated facilities
segment. Overall, the RFA analysis for electric generators found that
no small entities would potentially incur a significant impact under
the final rule. Specifically, for electric generators, EPA estimates
that zero to three small entities will incur costs exceeding 1 percent
of revenue, while no small entity will incur costs exceeding 3 percent
of revenue. Following EPA's guidance on conducting RFA analyses, the
number of small entities above the threshold as a percent of all small
entities subject to the rule are zero to 10 percent at the 1 percent of
revenue threshold, and zero percent at the 3 percent of revenue
threshold.
The findings for manufacturers are comparable. Specifically, EPA
estimates that three to four small parent entities will incur costs
exceeding 1 percent of revenue, and zero to one small parent entity
will incur costs exceeding 3 percent of revenue. The associated
percentages of small entities subject to the final rule are 8 percent
to 18 percent at the 1 percent threshold, and zero percent to 6 percent
at the 3 percent threshold.
Combining the electric generators and manufacturers segments, EPA
estimates that three to seven small entities will incur costs exceeding
1 percent of revenue, while zero to one small entity will incur costs
exceeding 3 percent of revenue. The corresponding percentages of small
entities are 4 to 13 percent at the 1 percent threshold, and zero to 2
percent at the 3 percent threshold.
In summary, under the final rule, EPA estimates that a small number
of small parent entities will incur a potentially significant cost
impact in the individual regulated industry segments, and overall, for
both segments. The maximum number of small entities estimated to incur
costs exceeding 1 percent is seven, overall, with three of these small
entities in the electric generators segment and four in the
manufacturers segment. The maximum number of small entities with costs
exceeding 3 percent is one, overall, with no small entities in the
electric generators segment and one small entity in the manufacturers
segments. In each case, the maximum value reflects the high end of an
uncertainty range that is based on different sample weighting
approaches. EPA judges that values in the interior of these ranges
represent more reasonable estimates of the number of small entities
incurring significant impacts. The estimated numbers of entities with
significant impacts also represent small percentages of the estimated
number of small entities, overall, and in the individual segments. The
maximum percentage values at the 1 percent of revenue threshold are 13
percent, overall, 10 percent for electric generators, and 18 percent
for manufacturers. At the 3 percent threshold, the maximum percentage
values are 2 percent, overall, zero percent for electric generators,
and 6 percent for manufacturers. Again, these values reflect the high
end of an uncertainty range.
In view of these very modest impacts, EPA judges that the final
rule is not consequential in terms of potential impacts for small
entities.
[[Page 48420]]
Exhibit XI-6--Estimated Cost-To-Revenue Impact for Small Entities That Own Facilities Subject to the Regulation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost impact category
-------------------------------------------------------------------------------------------------------------------
Cost >=1% of revenue \a\ Cost >=3% of revenue \a\
Regulated Segment -------------------------------------------------------------------------------------------------------------------
% of small regulated Number of small entities % of small regulated
Number of small entities entities \b\ \c\ entities \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Electric Generators................. 0 to 3 0% to 10% 0 0%
Manufacturers \d\................... 3 to 4 8% to 18% 0 to 1 0% to 6%
Electric Generators and 3 to 7 4% to 13% 0 to 1 0% to 2%
Manufacturers \d\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ For both electric generators and manufacturers, EPA used sample-weighting approaches that provide a range of estimates of the numbers of small
entities and regulated facilities they own (see Section VII(D)(a)(iv) for manufactures and see Section VII(D)(b)(1)(b) for electric generator
weighting approaches).
\b\ Percentage of small entities incurring a cost-to-revenue impact involves range estimates in both the numerator (number of affected entities) and
denominator (number of regulated entities).
\c\ Entities with cost-to-revenue ratios of at least 3 percent are included in the number of entities with cost-to-revenue such ratios of at least 1
percent.
\d\ Entity counts used in these calculations exclude manufacturers in other industries. EPA estimated that one small parent entity that owns regulated
facilities in other industries would incur costs exceeding 1 percent of revenue.
3. Certification Statement
Given these findings of very small absolute numbers of small
entities estimated to incur significant impacts under the final rule,
and low percentages of estimated small entities incurring impacts, I
certify that the final rule will not have ``a significant impact on a
substantial number of small entities'' (no SISNOSE), overall and by
individual industry segment.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531-1538, requires Federal agencies, unless otherwise prohibited by
law, to assess the effects of their regulatory actions on State, local,
and Tribal governments and the private sector. Today's rule contains a
Federal mandate that may result in expenditures by State, local, and
Tribal governments, in the aggregate, or the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Accordingly, under Unfunded Mandates Reform Act section 202, EPA has
prepared a written statement, which follows below (see Chapter 11 of
the EA).
1. Summary of Written Statement
a. Authorizing Legislation
Today's rule is issued under the authority of CWA sections 101,
301, 304, 306, 308, 316, 401, 402, 501, and 510, (33 U.S.C. 1251, 1311,
1314, 1316, 1318, 1326, 1341, 1342, 1361, and 1370). For detailed
information on the legal authority of this rule, see Section III of
this preamble.
b. Benefit-Cost Analysis
As described above, the costs, benefits and economic impacts
reported in this section may be underestimated due to EPA's assumption
that facilities with impoundments will qualify as having closed-cycle
recirculating systems in the baseline and thus, unless additional
controls are required to protect listed species, will incur no
technology-related costs. Likewise, for this analysis, because these
facilities are assumed not to install compliance technology, EPA also
assumed they would achieve no benefits. Accordingly, the benefits
reported in this section may be underestimated, based on the assumption
of no technology installation for facilities with impoundments.\165\
The existing and new unit provisions of today's rule are expected to
have total annualized pre-tax (social) costs of $274.9 million. These
costs include direct costs incurred by facilities and implementation
costs incurred by Federal, State, and local governments. The monetized
use and nonuse benefits of the final rule, accounting for the existing
and new unit provisions, are estimated to be $32.8 million.\166\ EPA
notes that these differences are based on a comparison of a partial
measure of benefits with a more complete measure of costs; therefore,
the results must be interpreted with caution. For a more detailed
comparison of the costs and benefits of the final rule, see Chapter 8
of the EA.
---------------------------------------------------------------------------
\165\ This factor in potential underestimation of benefits is
separate from other considerations that likely lead to benefits
underestimation, as described in this section and in the EA and BA
reports.
\166\ Both cost and benefit values were annualized over 51 years
and discounted at 3 percent. Values include costs and benefits
estimated for new units. EPA generated partial estimates of nonuse
benefits for resource changes for a species that represents less
than one percent of adverse environmental impacts.
---------------------------------------------------------------------------
EPA notes that States may be able to use existing sources of
financial assistance to revise and implement today's rule. CWA section
106 authorizes EPA to award grants to States, Tribes, intertribal
consortia, and interstate agencies for administering programs for the
prevention, reduction, and elimination of water pollution. These grants
may be used for various activities to develop and carry out a water
pollution control program, including permitting, monitoring, and
enforcement. Thus, State and Tribal NPDES permit programs represent one
type of State program that can be funded by CWA section 106 grants.
c. Summary of State, Local, and Tribal Government Input
EPA consulted with State governments and representatives of local
governments in developing the rule. The outreach activities are
discussed in Section III.A.3 of the preamble to the proposed rule (see
76 FR 22268, April 20, 2011) and Chapter 2 of the TDD. EPA has also
conducted additional outreach since the proposed rule, including
several conference calls with the Association of Clean Water
Administrators (including numerous states) and small business
representatives (including some local government officials). EPA also
combined its efforts and collected input from State and local
government entities during development of the proposed Effluent
Limitations Guidelines and Standards for the Steam Electric Power
Generating Point Source Category, which shares many of the same
affected facilities as today's final rule; see 78 FR 34530 (June 7,
2013) for more information. State and local officials attended numerous
site visits with
[[Page 48421]]
EPA's staff, enabling EPA to gather their input; see DCNs 10-6510, 10-
6518, 10-6520, 10-6521, 10-6523 and 10-6524. EPA also responded to
requests for information from multiple State and local governments. EPA
also attended conferences and participated in workgroups (such as
NARUC's 2013 Winter Committee Meetings) where additional information
about State and local government interests were presented.
Historically, EPA has also conducted a great deal of outreach in
developing the previous 316(b) regulations over the past decade; for
example, see the Phase I final preamble (66 FR 65331, December 18,
2001), the Phase II final preamble (69 FR 41677, July 9, 2004), and the
Phase III final preamble (71 FR 35037, June 16, 2006).
d. Regulatory Option Selected
EPA considered and analyzed several regulatory options to determine
the best technology available for minimizing adverse environmental
impact. These regulatory options are discussed in Section VI of this
preamble. These options included a range of technology-based
approaches, from impingement mortality technology at all facilities
with a DIF of greater than 50 mgd, to requiring additional impingement
mortality controls and intake flow commensurate with closed-cycle
cooling for all facilities. As discussed in detail in Section VI, EPA
did not select options exclusively because they are the most cost-
effective among the options that fulfill the requirements of section
316(b). EPA selected the final rule because it meets the requirement of
CWA section 316(b) that the location, design, construction, and
capacity of cooling water intake structures reflect the best technology
available for minimizing adverse environmental impacts. In addition,
EPA has determined that the benefits of the final rule justify the
costs, taking into account quantified and qualitative benefits and
costs. EPA selected a flexible approach for the final rule from among
the options considered; it allows consideration of costs and benefits
on a site-specific basis in determining BTA for reducing entrainment
and has flexible requirements for reducing impingement mortality.
2. Impact of Compliance Requirements on Small Governments
This rule is not subject to Unfunded Mandates Reform Act section
203 requirements because it contains no regulatory requirements that
could significantly or uniquely affect small governments (i.e.,
governments with a population of fewer than 50,000). For its assessment
of the impact of compliance requirements on small governments, EPA
compared the estimated total costs and costs per facility that small
governments would incur with the costs that large governments would
incur. EPA also compared costs for regulated facilities owned by small-
government entities with costs of regulated facilities owned by non-
government entities. The Agency evaluated costs per facility on the
basis of both average and maximum annualized cost. The costs for
facilities owned by small government entities are less than those
estimated for facilities owned by large government entities, or owned
by small or large non-government entities. EPA interprets these
findings to indicate that the final rule will not uniquely or
disproportionately affect small governments.
Because no manufacturer is government-owned, EPA conducted this
analysis for electric generators only.
a. Government-Owned Electric Generators by Ownership and Entity-Size
Category
Exhibit XI-7 provides an estimate of the number of non-Federal
government entities that own electric generators, by ownership type and
size of government entity. As presented in Exhibit XI-7, large
government entities own 45 electric generators, and small government
entities own 20 electric generators. Of the 65 facilities owned by
government entities, 48 are owned by municipalities, six are owned by
States and 11 are owned by other political subdivisions. Tribal
governments own no regulated facilities.
Exhibit XI-7--Number of Government-Owned Electric Generators, by Size of
Government \a\
------------------------------------------------------------------------
Entity type Large Small Total
------------------------------------------------------------------------
Municipality.................................... 29 19 48
State Government................................ 6 0 6
Other Political Subdivision..................... 10 1 11
Tribal Government............................... 0 0 0
-----------------------
Total......................................... 45 20 65
------------------------------------------------------------------------
\a\ Counts of explicitly and implicitly analyzed electric generators;
these are not weighted estimates. For details, see EA Appendix H.
b. Compliance Costs for Electric Generators Owned by Small Government
Entities
Exhibit XI-8 presents total, average annualized compliance costs,
and maximum annualized compliance costs of the final rule for regulated
facilities owned by government (State, local, and Tribal governments)
and non-government entities by entity-size category. For the existing
unit provision of the final rule, EPA estimates that small government
entities will incur a total annualized cost of $2.6 million, compared
to the total cost of $8.6 million incurred by large government entities
and $8.5 million incurred by small private entities. On a per facility
basis, EPA estimates that a facility owned by a small government entity
will on average incur a cost of $0.2 million with a maximum of $0.5
million. The Agency estimates that for a facility owned by large
government entity, the average cost of the existing provision of the
final rule will be $0.2 million per facility with a maximum of $1.3
million, while for a facility owned by a small private entity the
average cost will be $0.2 million per facility with a maximum of $1.4
million.\167\ Again, overall, EPA concludes that the compliance
requirements of the existing unit provision of today's rule do not
significantly or uniquely affect small governments in comparison to
either large governments or small private entities. For details of this
analysis, see the EA Chapter 11.
---------------------------------------------------------------------------
\167\ Excluding Federal government entities and regulated
facilities they own.
Exhibit XI-8--Electric Generators and Compliance Costs by Ownership Type and Size
[In millions, 2011 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Total Average cost Maximum
Ownership type Entity size facilities compliance per facility facility cost
(weighted) \a\ costs \d\ \e\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final Rule:
Government (excluding Federal).............. Small................................ 16 $2.6 $0.2 $0.5
[[Page 48422]]
Large................................ 37 8.6 0.2 1.3
Private \b\................................. Small................................ 53 8.5 0.2 1.4
Large................................ 423 184.3 0.4 5.0
All Facilities \c\.............................. ..................................... 544 220 0.4 5.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Facility counts are weighted estimates and differ from the values reported in Exhibit XI-7, which are un-weighted counts and reflect information for
both explicitly and implicitly analyzed electric generators. Sample-weighted values are reported in this table because costs were developed only for
the explicitly analyzed electric generators. For details on development of sample weights, see EA Appendix H.
\b\ Facility counts and cost estimates reported for the private sector include facilities owned by rural electric cooperatives.
\c\ Facility counts and cost estimates reported for All Facilities include facilities owned by the Federal government and costs estimated for these
facilities.
\d\ EPA calculated average cost per facility using the total number of regulated facilities owned by entities in a given ownership category.
\e\ Reflects maximum of un-weighted costs to explicitly analyzed facilities only.
3. Administrative Costs
Section 316(b) requirements are implemented through the NPDES
permit program. EPA estimates that 46 States and one territory--the
relevant jurisdictions with NPDES permitting authority under CWA
section 402(b)--will incur costs to administer the final rule.\168\ EPA
estimates that States and territories will incur costs for implementing
the requirements of today's rule in four activity categories: (1)
Start-up activities to learn and understand the requirements of today's
regulation and to implement administrative structures and procedures
for administering the regulation; (2) initial permit issuance
activities; (3) annual activities, including monitoring, reporting and
recordkeeping; and (4) non-annually recurring permit-related
activities. Exhibit XI-9 presents total annualized costs for each type
of administrative activity. EPA estimates that State and local
government entities will incur annualized costs of $0.9 million to
administer the final rule for electric generators and manufacturers.
Monitoring, reporting and recordkeeping costs compose the largest share
of administrative costs.
---------------------------------------------------------------------------
\168\ Federal government permitting authorities will also incur
costs to administer the rule. As stated earlier in this section,
consistent with UMRA analysis requirements, EPA did not account for
costs to Federal entities in the UMRA analysis.
Exhibit XI-9--Annualized Government Administrative Costs
[In millions, 2011 dollars]
----------------------------------------------------------------------------------------------------------------
Cost
--------------------------------
Activity Electric Total
generators Manufacturers
----------------------------------------------------------------------------------------------------------------
Start-up Activities............................................. NA NA \a\ $0.0
Initial Permit Issuance Activities.............................. $0.2 $0.2 0.4
Annual Monitoring, Reporting and Recordkeeping Activities....... 0.2 0.2 0.5
Non-Annually Recurring Permit-Related Activities \b\............ \b\ 0.0 0.0 0.1
-----------------------------------------------
Total....................................................... 0.5 0.4 0.9
----------------------------------------------------------------------------------------------------------------
\a\ Costs associated with start-up activities are estimated for both electric generators and manufacturers;
these costs are less than $20,000.
\b\ Costs are less than $50,000.
E. Executive Order 13132: Federalism
Under E.O. 13132, EPA may not issue an action that has federalism
implications, that imposes substantial direct compliance costs on the
State and local governments, and that is not required by statute,
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the final rule.
The final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in E.O. 13132.This final rule would not alter the basic
State-Federal scheme established in the CWA under which EPA authorizes
States to carry out the NPDES permitting program. Prior to this rule,
authorized States were required to issue NPDES permits including
requirements for CWISs on a case-by-case BPJ basis. 40 CFR 125.90(b).
EPA expects that today's rule will have little to no effect on the
relationship between, or the distribution of power and responsibilities
among, the Federal and State governments.
EPA estimates an average annual burden of $0.9 million, for State
and local governments to collectively administer the existing unit
provision of the final rule.\169\ The rule will also impose a
compliance cost burden on State and local governments, if those
government entities own facilities that are subject to today's rule.
EPA has identified 554 regulated facilities that are owned by State or
local government entities; the Agency estimates that under the existing
unit provision of the final rule these facilities will incur an average
annual compliance cost of
[[Page 48423]]
approximately $0.2 million per facility.\170\ Because this rule does
not have federalism implications, the requirements of section 6 of E.O.
13132 do not apply to this rule.
---------------------------------------------------------------------------
\169\ This estimate does not include costs to administer the new
unit provision of the final rule; however, EPA expects these costs
to be small.
\170\ Cost values were calculated over the 51-year analysis
period used for analysis of social costs, discounted and annualized
using a rate of 7 percent (see EA Chapters 7 and 11).
---------------------------------------------------------------------------
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in E.O.
13175 (65 FR 67249, November 9, 2000). It would not have substantial
direct effects on Tribal governments, on the relationship between the
Federal government and the Tribes, or the distribution of power and
responsibilities between the Federal government and Tribes as specified
in E.O. 13175. The national cooling water intake structure standards
would be implemented through permits issued under the NPDES program. No
Tribal governments are authorized pursuant to CWA section 402(b) to
implement the NPDES program. In addition, EPA's analyses show that
Tribal governments own no facilities subject to today's rule; thus,
this rule does not affect Tribes in any way now or in the foreseeable
future. Thus, E.O. 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to E.O. 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks. This rule establishes requirements for cooling water
intake structures to protect the environment.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
E.O. 13211 (66 FR 28355, May 22, 2001) requires EPA to prepare and
submit a Statement of Energy Effects to the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
for actions identified as significant energy actions. On the basis of
the Office of Management and Budget's guidance for assessing the
potential energy impact of regulations, the Agency anticipates that
today's rule may have a significant adverse effect on the supply,
distribution, or use of energy, thus requiring EPA to include a
Statement of Energy Effects.
The Agency assessed the energy effects of today's rule,
specifically, the rule's effect on energy supply, distribution or use
in the electric power sector, as required under E.O. 13211. In its
energy-effects assessment, EPA relied on Integrated Planning Model
(IPM) analyses undertaken by EPA for the final rule. Based on that
analysis, described in Section IX(D)(1)(d) of this preamble (Assessment
of the Impacts in the Context of Electricity Markets) and in more
detail in Chapter 6 of the EA report, EPA finds that the compliance
requirements of the final rule may affect the electric power sector in
ways that would constitute a significant adverse effect under E.O.
13211, and thus includes a Statement of Energy Effects in the economic
analysis.
The Agency's analysis found that the final rule will not reduce
electricity production in excess of 1 billion kWh hours per year (or
one thousand GWh), will not increase the cost of energy production in
excess of 1 percent, will not increase dependence on foreign supply of
energy, and will not significantly affect domestic coal production.
However, the final rule will result in net retirement of 998 MW of
generating capacity, which exceeds 500 MW of installed capacity, the
threshold of significant adverse effect identified in the OMB
Implementation Guidance for E.O. 13211. EPA notes that, with only one
exception, these retirements involve older, less efficient generating
units with very low capacity utilization rates. The 998 MW of net
retired capacity is replaced by 589 MW of new capacity; therefore,
because older and less efficient capacity is replaced by new, more
energy-efficient, and less polluting capacity, these retirements mean
that 409 MW less capacity is needed to fulfill the same demand.
For more detail on the estimated energy effects of the final rule,
see Chapter 12 of the EA, which is in the public docket.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995, Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA
to use voluntary consensus standards in its regulatory activities
unless doing so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The National Technology Transfer and
Advancement Act directs EPA to provide Congress, through the Office of
Management and Budget, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This final rulemaking may involve technical standards, for example,
in measuring impingement and entrainment. Nothing in this final rule
would prevent the use of voluntary consensus standards for such
measurements. EPA encourages permitting authorities and regulated
entities to use voluntary consensus standards, where they are
available.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
E.O. 12898 (59 FR 7629, February 16, 1994) establishes Federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that today's rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations. Specifically, the final
rule increases the level of environmental protection for all affected
populations and has no high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Because EPA expects that this final rule will help to
preserve the health of aquatic ecosystems near regulated facilities,
EPA expects that all populations, including minority and low-income
populations, will benefit from improved environmental conditions.
To meet the objectives of E.O. 12898, EPA assessed whether today's
rule could distribute benefits among population subgroups in a way that
is significantly less favorable to low-income and minority populations.
EPA compared key demographic characteristics of affected substate
populations to those demographic characteristics at the State level. If
EPA had found that the demographic profile of the substate benefit
population is composed of a significantly lower share of low-income
and/or minority populations than the State's general population, EPA
might have assessed the final rule as yielding an unfavorable
[[Page 48424]]
distribution of benefits, from the perspective of the public policy
principles of E.O. 12898. The two sets of demographic variables of
interest for this environmental justice analysis are race and
ethnicity, and annual household income, which are the variables in the
Fish Consumption Pathway Module that best capture the minority and low-
income aspects of the affected populations.171 172 EPA
compared variable averages at the substate and State levels to
determine whether the demographic profile of the affected population is
consistent with the State profile (for details, see EA Chapter 12).
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\171\ Annual household income data in the FCP Module are
available for the following categories: less than $10,000; $10,000
to $19,999; $20,000 to $24,999; $25,000 to $29,999; $30,000 to
$34,999; $35,000 to $39,999; $40,000 to $49,999; $50,000 to $74,999;
$75,000 to $99,999; and more than $100,000. For this analysis and
previous 316(b) rule analyses, these categories were combined into
low- and not low-income groups based on the U.S. Department of
Health and Human Services' poverty guidelines for a family of four
living in the contiguous United States or DC The current (2013)
poverty guideline is $23,550, which falls near the upper end of the
$20,000 to $24,999 income range (U.S. HHS, 2013). For the current
analysis, EPA used $25,000 as the threshold for separating
populations into low- and not low-income groups.
\172\ Race and ethnic categories used in the analysis include
white non-Hispanic, white Hispanic, black or African American, Asian
or Native Hawaiian or Other Pacific Island, and American Indian and
Alaska Native.
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The comparison of minority populations affected by the regulated
facilities to the affected States' overall populations showed no
statistically significant difference between these groups. While low-
income populations constitute a lower fraction of the benefit
population than of the State's overall population in many States, the
two groups are not significantly different. EPA thus determined that
the final rule does not systematically discriminate against, or exclude
or deny participation of, the lower income population group or the
minority population group in the benefits of the final rule in a way
that would be contrary to the intent of E.O. 12898. Overall, EPA thus
concluded that the final rule is consistent with the policy intent of
E.O. 12898. Anecdotally, minority (e.g., Native American) and low-
income populations might be more likely to include a larger proportion
of subsistence fishermen. Because this rule will increase abundance of
all fish species in the areas affected by cooling water intakes, it
might provide a benefit to subsistence fishermen. To the extent that
minority and low-income populations are over-represented in this group,
they might especially benefit from this rule.
K. Executive Order 13158: Marine Protected Areas
E.O. 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of this executive order is to
protect significant natural and cultural resources in the marine
environment, which means ``those areas of coastal and ocean waters, the
Great Lakes and their connecting waters, and submerged lands
thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
Today's rule recognizes the biological sensitivity of tidal rivers,
estuaries, oceans, and the Great Lakes, and their susceptibility to
adverse environmental impacts from cooling water intake structures. The
rule provides requirements to minimize adverse environmental impacts
for cooling water intake structures on these types of waterbodies.
EPA used GIS data of the locations of MPAs (Marine Protected Areas)
from the national MPA program (https://www.mpa.gov/helpful_resources/inventory.html) to locate regulated facilities in MPAs. Under the final
rule, 60 percent of regulated facilities in MPAs obtain reductions in
impingement mortality. As noted above, because of EPA's assumption that
facilities with impoundments will not need to install compliance
technology, this may be an underestimate. EPA cannot estimate
reductions in entrainment because they would be based on site-specific
determinations of BTA. Therefore, EPA expects that today's rule will
advance the objective of the executive order to protect marine areas.
For more details on this analysis and analysis results, see BA Chapter
8.
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective October 14, 2014.
List of Subjects
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 125
Environmental protection, Cooling water intake structure, Reporting
and recordkeeping requirements, Waste treatment and disposal, Water
pollution control.
Dated: May 19, 2014.
Gina McCarthy,
Administrator.
For reasons set out in the preamble, Chapter I of Title 40 of the
Code of Federal Regulations is amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. The suspension of 40 CFR 122.21(r)(1)(ii) and (r)(5), published on
July 9, 2007 (72 FR 37109) is lifted.
0
3. Section 122.21 is amended as follows:
0
a. Revising paragraph (r)(1).
0
b. Adding paragraphs (r)(4)(ix) through (xii).
0
c. Revising paragraph (r)(5).
0
d. Adding paragraphs (r)(6) through (14).
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
* * * * *
(r) * * *
(1) * * *
(i) New facilities with new or modified cooling water intake
structures. New facilities (other than offshore oil and gas extraction
facilities) with cooling water intake structures as defined in part
125, subpart I of this chapter, must submit to the Director for review
the information required under paragraphs (r)(2) (except (r)(2)(iv)),
(3), and (4) (except (r)(4)(ix), (x), (xi), and (xii)) of this section
and Sec. 125.86 of this chapter as part of the
[[Page 48425]]
permit application. New offshore oil and gas extraction facilities with
cooling water intake structures as defined in part 125, subpart N, of
this chapter that are fixed facilities must submit to the Director for
review the information required under paragraphs (r)(2) (except
(r)(2)(iv)), (3), and (4) (except (r)(4)(ix), (x), (xi), and (xii)) of
this section and Sec. 125.136 of this chapter as part of their permit
application.
(ii) Existing facilities. (A) All existing facilities. The owner or
operator of an existing facility defined at 40 CFR 125.92(k) must
submit to the Director for review the information required under
paragraphs (r)(2) and (3) of this section and applicable provisions of
paragraphs (r)(4), (5), (6), (7), and (8) of this section.
(B) Existing facilities greater than 125 mgd AIF. In addition, the
owner or operator of an existing facility that withdraws greater than
125 mgd actual intake flow (AIF), as defined at 40 CFR 125.92 (a), of
water for cooling purposes must also submit to the Director for review
the information required under paragraphs (r)(9), (10), (11), (12), and
(13) of this section. If the owner or operator of an existing facility
intends to comply with the BTA (best technology available) standards
for entrainment using a closed-cycle recirculating system as defined at
40 CFR 125.92(c), the Director may reduce or waive some or all of the
information required under paragraphs (r)(9) through (13) of this
section.
(C) Additional information. The owner or operator of an existing
facility must also submit such additional information as the Director
determines is necessary pursuant to 40 CFR 125.98(i).
(D) New units at existing facilities. The owner or operator of a
new unit at an existing facility, as defined at 40 CFR 125.92(u), must
submit or update any information previously provided to the Director by
submitting the information required under paragraphs (r)(2), (3), (5),
(8), and (14) of this section and applicable provisions of paragraphs
(r)(4), (6), and (7) of this section. Requests for and approvals of
alternative requirements sought under 40 CFR 125.94(e)(2) or
125.98(b)(7) must be submitted with the permit application.
(E) New units at existing facilities not previously subject to Part
125. The owner or operator of a new unit as defined at 40 CFR 125.92(u)
at an existing facility not previously subject to part 125 of this
chapter that increases the total capacity of the existing facility to
more than 2 mgd DIF must submit the information required under
paragraphs (r)(2), (3), (5), and (8) of this section and applicable
provisions of paragraphs (r)(4), (6), and (7) of this section at the
time of the permit application for the new unit. Requests for
alternative requirements under 40 CFR 125.94(e)(2) or 125.98(b)(7) must
be submitted with the permit application. If the total capacity of the
facility will increase to more than 125 mgd AIF, the owner or operator
must also submit the information required in paragraphs (r)(9) through
(13) of this section. If the owner or operator of an existing facility
intends to comply with the BTA (best technology available) standards
for entrainment using a closed-cycle recirculating system as defined at
40 CFR 125.92(c), the Director may reduce or waive some or all of the
information required under paragraphs (r)(9) through (13) of this
section.
(F) If the owner or operator of an existing facility plans to
retire the facility before the current permit expires, then the
requirements of paragraphs (r)(1)(ii)(A), (B), (C), (D), and (E) of
this section do not apply.
(G) If the owner or operator of an existing facility plans to
retire the facility after the current permit expires but within one
permit cycle, then the Director may waive the requirements of
paragraphs (r)(7), (9), (10), (11), (12), and (13) of this section
pending a signed certification statement from the owner or operator of
the facility specifying the last operating date of the facility.
(H) All facilities. The owner or operator of any existing facility
or new unit at any existing facility must also submit with its permit
application all information received as a result of any communication
with a Field Office of the Fish and Wildlife Service and/or Regional
Office of the National Marine Fisheries Service.
* * * * *
(4) * * *
(ix) In the case of the owner or operator of an existing facility
or new unit at an existing facility, the Source Water Baseline
Biological Characterization Data is the information in paragraphs
(r)(4)(i) through (xii) of this section.
(x) For the owner or operator of an existing facility,
identification of protective measures and stabilization activities that
have been implemented, and a description of how these measures and
activities affected the baseline water condition in the vicinity of the
intake.
(xi) For the owner or operator of an existing facility, a list of
fragile species, as defined at 40 CFR 125.92(m), at the facility. The
applicant need only identify those species not already identified as
fragile at 40 CFR 125.92(m). New units at an existing facility are not
required to resubmit this information if the cooling water withdrawals
for the operation of the new unit are from an existing intake.
(xii) For the owner or operator of an existing facility that has
obtained incidental take exemption or authorization for its cooling
water intake structure(s) from the U.S. Fish and Wildlife Service or
the National Marine Fisheries Service, any information submitted in
order to obtain that exemption or authorization may be used to satisfy
the permit application information requirement of paragraph 40 CFR
125.95(f) if included in the application.
(5) Cooling Water System Data. The owner or operator of an existing
facility must submit the following information for each cooling water
intake structure used or intended to be used:
(i) A narrative description of the operation of the cooling water
system and its relationship to cooling water intake structures; the
proportion of the design intake flow that is used in the system; the
number of days of the year the cooling water system is in operation and
seasonal changes in the operation of the system, if applicable; the
proportion of design intake flow for contact cooling, non-contact
cooling, and process uses; a distribution of water reuse to include
cooling water reused as process water, process water reused for
cooling, and the use of gray water for cooling; a description of
reductions in total water withdrawals including cooling water intake
flow reductions already achieved through minimized process water
withdrawals; a description of any cooling water that is used in a
manufacturing process either before or after it is used for cooling,
including other recycled process water flows; the proportion of the
source waterbody withdrawn (on a monthly basis);
(ii) Design and engineering calculations prepared by a qualified
professional and supporting data to support the description required by
paragraph (r)(5)(i) of this section; and
(iii) Description of existing impingement and entrainment
technologies or operational measures and a summary of their
performance, including but not limited to reductions in impingement
mortality and entrainment due to intake location and reductions in
total water withdrawals and usage.
(6) Chosen Method(s) of Compliance with Impingement Mortality
Standard. The owner or operator of the facility must identify the
chosen compliance
[[Page 48426]]
method for the entire facility; alternatively, the applicant must
identify the chosen compliance method for each cooling water intake
structure at its facility. The applicant must identify any intake
structure for which a BTA determination for Impingement Mortality under
40 CFR 125.94 (c)(11) or (12) is requested. In addition, the owner or
operator that chooses to comply via 40 CFR 125.94 (c)(5) or (6) must
also submit an impingement technology performance optimization study as
described below:
(i) If the applicant chooses to comply with 40 CFR 125.94(c)(5),
subject to the flexibility for timing provided in 40 CFR 125.95(a)(2),
the impingement technology performance optimization study must include
two years of biological data collection measuring the reduction in
impingement mortality achieved by the modified traveling screens as
defined at 40 CFR 125.92(s) and demonstrating that the operation has
been optimized to minimize impingement mortality. A complete
description of the modified traveling screens and associated equipment
must be included, including, for example, type of mesh, mesh slot size,
pressure sprays and fish return mechanisms. A description of any
biological data collection and data collection approach used in
measuring impingement mortality must be included:
(A) Collecting data no less frequently than monthly. The Director
may establish more frequent data collection;
(B) Biological data collection representative of the impingement
and the impingement mortality at the intakes subject to this provision;
(C) A taxonomic identification to the lowest taxon possible of all
organisms collected;
(D) The method in which naturally moribund organisms are identified
and taken into account;
(E) The method in which mortality due to holding times is taken
into account;
(F) If the facility entraps fish or shellfish, a count of
entrapment, as defined at 40 CFR 125.92(j), as impingement mortality;
and
(G) The percent impingement mortality reflecting optimized
operation of the modified traveling screen and all supporting
calculations.
(ii) If the applicant chooses to comply with 40 CFR 125.94(c)(6),
the impingement technology performance optimization study must include
biological data measuring the reduction in impingement mortality
achieved by operation of the system of technologies, operational
measures and best management practices, and demonstrating that
operation of the system has been optimized to minimize impingement
mortality. This system of technologies, operational measures and best
management practices may include flow reductions, seasonal operation,
unit closure, credit for intake location, and behavioral deterrent
systems. The applicant must document how each system element
contributes to the system's performance. The applicant must include a
minimum of two years of biological data measuring the reduction in
impingement mortality achieved by the system. The applicant must also
include a description of any sampling or data collection approach used
in measuring the rate of impingement, impingement mortality, or flow
reductions.
(A) Rate of Impingement. If the demonstration relies in part on a
credit for reductions in the rate of impingement in the system, the
applicant must provide an estimate of those reductions to be used as
credit towards reducing impingement mortality, and any relevant
supporting documentation, including previously collected biological
data, performance reviews, and previously conducted performance studies
not already submitted to the Director. The submission of studies more
than 10 years old must include an explanation of why the data are still
relevant and representative of conditions at the facility and explain
how the data should be interpreted using the definitions of impingement
and entrapment at 40 CFR 125.92(n) and (j), respectively. The estimated
reductions in rate of impingement must be based on a comparison of the
system to a once-through cooling system with a traveling screen whose
point of withdrawal from the surface water source is located at the
shoreline of the source waterbody. For impoundments that are waters of
the United States in whole or in part, the facility's rate of
impingement must be measured at a location within the cooling water
intake system that the Director deems appropriate. In addition, the
applicant must include two years of biological data collection
demonstrating the rate of impingement resulting from the system. For
this demonstration, the applicant must collect data no less frequently
than monthly. The Director may establish more frequent data collection.
(B) Impingement Mortality. If the demonstration relies in part on a
credit for reductions in impingement mortality already obtained at the
facility, the applicant must include two years of biological data
collection demonstrating the level of impingement mortality the system
is capable of achieving. The applicant must submit any relevant
supporting documentation, including previously collected biological
data, performance reviews, and previously conducted performance studies
not already submitted to the Director. The applicant must provide a
description of any sampling or data collection approach used in
measuring impingement mortality. In addition, for this demonstration
the applicant must:
(1) Collect data no less frequently than monthly. The Director may
establish more frequent data collection;
(2) Conduct biological data collection that is representative of
the impingement and the impingement mortality at an intake subject to
this provision. In addition, the applicant must describe how the
location of the cooling water intake structure in the waterbody and the
water column are accounted for in the points of data collection;
(3) Include a taxonomic identification to the lowest taxon possible
of all organisms to be collected;
(4) Describe the method in which naturally moribund organisms are
identified and taken into account;
(5) Describe the method in which mortality due to holding times is
taken into account; and
(6) If the facility entraps fish or shellfish, a count of the
entrapment, as defined at 40 CFR 125.92(j), as impingement mortality.
(C) Flow reduction. If the demonstration relies in part on flow
reduction to reduce impingement, the applicant must include two years
of intake flows, measured daily, as part of the demonstration, and
describe the extent to which flow reductions are seasonal or
intermittent. The applicant must document how the flow reduction
results in reduced impingement. In addition, the applicant must
describe how the reduction in impingement has reduced impingement
mortality.
(D) Total system performance. The applicant must document the
percent impingement mortality reflecting optimized operation of the
total system of technologies, operational measures, and best management
practices and all supporting calculations. The total system performance
is the combination of the impingement mortality performance reflected
in paragraphs (r)(6)(ii)(A), (B), and (C) of this section.
(7) Entrainment Performance Studies. The owner or operator of an
existing facility must submit any previously conducted studies or
studies obtained from other facilities addressing technology efficacy,
through-facility entrainment survival, and other
[[Page 48427]]
entrainment studies. Any such submittals must include a description of
each study, together with underlying data, and a summary of any
conclusions or results. Any studies conducted at other locations must
include an explanation as to why the data from other locations are
relevant and representative of conditions at your facility. In the case
of studies more than 10 years old, the applicant must explain why the
data are still relevant and representative of conditions at the
facility and explain how the data should be interpreted using the
definition of entrainment at 40 CFR 125.92(h).
(8) Operational Status. The owner or operator of an existing
facility must submit a description of the operational status of each
generating, production, or process unit that uses cooling water,
including but not limited to:
(i) For power production or steam generation, descriptions of
individual unit operating status including age of each unit, capacity
utilization rate (or equivalent) for the previous 5 years, including
any extended or unusual outages that significantly affect current data
for flow, impingement, entrainment, or other factors, including
identification of any operating unit with a capacity utilization rate
of less than 8 percent averaged over a 24-month block contiguous
period, and any major upgrades completed within the last 15 years,
including but not limited to boiler replacement, condenser replacement,
turbine replacement, or changes to fuel type;
(ii) Descriptions of completed, approved, or scheduled uprates and
Nuclear Regulatory Commission relicensing status of each unit at
nuclear facilities;
(iii) For process units at your facility that use cooling water
other than for power production or steam generation, if you intend to
use reductions in flow or changes in operations to meet the
requirements of 40 CFR 125.94(c), descriptions of individual production
processes and product lines, operating status including age of each
line, seasonal operation, including any extended or unusual outages
that significantly affect current data for flow, impingement,
entrainment, or other factors, any major upgrades completed within the
last 15 years, and plans or schedules for decommissioning or
replacement of process units or production processes and product lines;
(iv) For all manufacturing facilities, descriptions of current and
future production schedules; and
(v) Descriptions of plans or schedules for any new units planned
within the next 5 years.
(9) Entrainment Characterization Study. The owner or operator of an
existing facility that withdraws greater than 125 mgd AIF, where the
withdrawal of cooling water is measured at a location within the
cooling water intake structure that the Director deems appropriate,
must develop for submission to the Director an Entrainment
Characterization Study that includes a minimum of two years of
entrainment data collection. The Entrainment Characterization Study
must include the following components:
(i) Entrainment Data Collection Method. The study should identify
and document the data collection period and frequency. The study should
identify and document organisms collected to the lowest taxon possible
of all life stages of fish and shellfish that are in the vicinity of
the cooling water intake structure(s) and are susceptible to
entrainment, including any organisms identified by the Director, and
any species protected under Federal, State, or Tribal law, including
threatened or endangered species with a habitat range that includes
waters in the vicinity of the cooling water intake structure.
Biological data collection must be representative of the entrainment at
the intakes subject to this provision. The owner or operator of the
facility must identify and document how the location of the cooling
water intake structure in the waterbody and the water column are
accounted for by the data collection locations;
(ii) Biological Entrainment Characterization. Characterization of
all life stages of fish, shellfish, and any species protected under
Federal, State, or Tribal law (including threatened or endangered
species), including a description of their abundance and their temporal
and spatial characteristics in the vicinity of the cooling water intake
structure(s), based on sufficient data to characterize annual,
seasonal, and diel variations in entrainment, including but not limited
to variations related to climate and weather differences, spawning,
feeding, and water column migration. This characterization may include
historical data that are representative of the current operation of the
facility and of biological conditions at the site. Identification of
all life stages of fish and shellfish must include identification of
any surrogate species used, and identification of data representing
both motile and non-motile life-stages of organisms;
(iii) Analysis and Supporting Documentation. Documentation of the
current entrainment of all life stages of fish, shellfish, and any
species protected under Federal, State, or Tribal law (including
threatened or endangered species). The documentation may include
historical data that are representative of the current operation of the
facility and of biological conditions at the site. Entrainment data to
support the facility's calculations must be collected during periods of
representative operational flows for the cooling water intake
structure, and the flows associated with the data collection must be
documented. The method used to determine latent mortality along with
data for specific organism mortality or survival that is applied to
other life-stages or species must be identified. The owner or operator
of the facility must identify and document all assumptions and
calculations used to determine the total entrainment for that facility
together with all methods and quality assurance/quality control
procedures for data collection and data analysis. The proposed data
collection and data analysis methods must be appropriate for a
quantitative survey.
(10) Comprehensive Technical Feasibility and Cost Evaluation Study.
The owner or operator of an existing facility that withdraws greater
than 125 mgd AIF must develop for submission to the Director an
engineering study of the technical feasibility and incremental costs of
candidate entrainment control technologies. In addition, the study must
include the following:
(i) Technical feasibility. An evaluation of the technical
feasibility of closed-cycle recirculating systems as defined at 40 CFR
125.92(c), fine mesh screens with a mesh size of 2 millimeters or
smaller, and water reuse or alternate sources of cooling water. In
addition, this study must include:
(A) A description of all technologies and operational measures
considered (including alternative designs of closed-cycle recirculating
systems such as natural draft cooling towers, mechanical draft cooling
towers, hybrid designs, and compact or multi-cell arrangements);
(B) A discussion of land availability, including an evaluation of
adjacent land and acres potentially available due to generating unit
retirements, production unit retirements, other buildings and equipment
retirements, and potential for repurposing of areas devoted to ponds,
coal piles, rail yards, transmission yards, and parking lots;
(C) A discussion of available sources of process water, grey water,
waste water, reclaimed water, or other waters of appropriate quantity
and quality for use as some or all of the cooling water needs of the
facility; and
(D) Documentation of factors other than cost that may make a
candidate
[[Page 48428]]
technology impractical or infeasible for further evaluation.
(ii) Other entrainment control technologies. An evaluation of
additional technologies for reducing entrainment may be required by the
Director.
(iii) Cost evaluations. The study must include engineering cost
estimates of all technologies considered in paragraphs (r)(10)(i) and
(ii) of this section. Facility costs must also be adjusted to estimate
social costs. All costs must be presented as the net present value
(NPV) and the corresponding annual value. Costs must be clearly labeled
as compliance costs or social costs. The applicant must separately
discuss facility level compliance costs and social costs, and provide
documentation as follows:
(A) Compliance costs are calculated as after-tax, while social
costs are calculated as pre-tax. Compliance costs include the
facility's administrative costs, including costs of permit application,
while the social cost adjustment includes the Director's administrative
costs. Any outages, downtime, or other impacts to facility net revenue,
are included in compliance costs, while only that portion of lost net
revenue that does not accrue to other producers can be included in
social costs. Social costs must also be discounted using social
discount rates of 3 percent and 7 percent. Assumptions regarding
depreciation schedules, tax rates, interest rates, discount rates and
related assumptions must be identified;
(B) Costs and explanation of any additional facility modifications
necessary to support construction and operation of technologies
considered in paragraphs (r)(10)(i) and (ii) of this section, including
but not limited to relocation of existing buildings or equipment,
reinforcement or upgrading of existing equipment, and additional
construction and operating permits. Assumptions regarding depreciation
schedules, interest rates, discount rates, useful life of the
technology considered, and any related assumptions must be identified;
and
(C) Costs and explanation for addressing any non-water quality
environmental and other impacts identified in paragraph (r)(12) of this
section. The cost evaluation must include a discussion of all
reasonable attempts to mitigate each of these impacts.
(11) Benefits Valuation Study. The owner or operator of an existing
facility that withdraws greater than 125 mgd AIF must develop for
submission to the Director an evaluation of the benefits of the
candidate entrainment reduction technologies and operational measures
evaluated in paragraph (r)(10) of this section including using the
Entrainment Characterization Study completed in paragraph (r)(9) of
this section. Each category of benefits must be described narratively,
and when possible, benefits should be quantified in physical or
biological units and monetized using appropriate economic valuation
methods. The benefits valuation study must include, but is not limited
to, the following elements:
(i) Incremental changes in the numbers of individual fish and
shellfish lost due to impingement mortality and entrainment as defined
in 40 CFR 125.92, for all life stages of each exposed species;
(ii) Description of basis for any estimates of changes in the stock
sizes or harvest levels of commercial and recreational fish or
shellfish species or forage fish species;
(iii) Description of basis for any monetized values assigned to
changes in the stock size or harvest levels of commercial and
recreational fish or shellfish species, forage fish, and to any other
ecosystem or non use benefits;
(iv) A discussion of mitigation efforts completed prior to October
14, 2014 including how long they have been in effect and how effective
they have been;
(v) Discussion, with quantification and monetization, where
possible, of any other benefits expected to accrue to the environment
and local communities, including but not limited to improvements for
mammals, birds, and other organisms and aquatic habitats;
(vi) Discussion, with quantification and monetization, where
possible, of any benefits expected to result from any reductions in
thermal discharges from entrainment technologies.
(12) Non-water Quality Environmental and Other Impacts Study. The
owner or operator of an existing facility that withdraws greater than
125 mgd AIF must develop for submission to the Director a detailed
facility-specific discussion of the changes in non-water quality
environmental and other impacts attributed to each technology and
operational measure considered in paragraph (r)(10) of this section,
including both impacts increased and impacts decreased. The study must
include the following:
(i) Estimates of changes to energy consumption, including but not
limited to auxiliary power consumption and turbine backpressure energy
penalty;
(ii) Estimates of air pollutant emissions and of the human health
and environmental impacts associated with such emissions;
(iii) Estimates of changes in noise;
(iv) A discussion of impacts to safety, including documentation of
the potential for plumes, icing, and availability of emergency cooling
water;
(v) A discussion of facility reliability, including but not limited
to facility availability, production of steam, impacts to production
based on process unit heating or cooling, and reliability due to
cooling water availability;
(vi) Significant changes in consumption of water, including a
facility-specific comparison of the evaporative losses of both once-
through cooling and closed-cycle recirculating systems, and
documentation of impacts attributable to changes in water consumption;
and
(vii) A discussion of all reasonable attempts to mitigate each of
these factors.
(13) Peer Review. If the applicant is required to submit studies
under paragraphs (r)(10) through (12) of this section, the applicant
must conduct an external peer review of each report to be submitted
with the permit application. The applicant must select peer reviewers
and notify the Director in advance of the peer review. The Director may
disapprove of a peer reviewer or require additional peer reviewers. The
Director may confer with EPA, Federal, State and Tribal fish and
wildlife management agencies with responsibility for fish and wildlife
potentially affected by the cooling water intake structure, independent
system operators, and state public utility regulatory agencies, to
determine which peer review comments must be addressed. The applicant
must provide an explanation for any significant reviewer comments not
accepted. Peer reviewers must have appropriate qualifications and their
names and credentials must be included in the peer review report.
(14) New Units. The applicant must identify the chosen compliance
method for the new unit. In addition, the owner or operator that
selects the BTA standards for new units at 40 CFR 125.94 (e)(2) as its
route to compliance must submit information to demonstrate entrainment
reductions equivalent to 90 percent or greater of the reduction that
could be achieved through compliance with 40 CFR 125.94(e)(1). The
demonstration must include the Entrainment Characterization Study at
paragraph (r)(9) of this section. In addition, if data specific to your
facility indicates that compliance with the requirements of Sec.
125.94 of this chapter for each new unit would result in compliance
costs wholly out of proportion to the costs EPA considered in
establishing the requirements at
[[Page 48429]]
issue, or would result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other
than impingement or entrainment, or significant adverse impacts on
local energy markets, you must submit all supporting data as part of
paragraph (r)(14) of this section. The Director may determine that
additional data and information, including but not limited to
monitoring, must be included as part of paragraph (r)(14) of this
section.
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
4. The authority citation for part 125 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq., unless
otherwise noted.
Subpart I--[Amended]
0
5. Section 125.84 is amended by revising paragraphs (c) introductory
text and (d)(1) to read as follows:
Sec. 125.84 As an owner or operator of a new facility, what must I do
to comply with this subpart?
* * * * *
(c) Track I requirements for new facilities that withdraw greater
than 2 mgd and less than 10 mgd and that choose not to comply with
paragraph (b) of this section. You must comply with all the following
requirements:
* * * * *
(d) * * *
(1) You must demonstrate to the Director that the technologies
employed will reduce the level of adverse environmental impact from
your cooling water intake structures to a level comparable to that
which you would achieve were you to implement the requirements of
paragraphs (b)(1) and (2) of this section. This demonstration must
include a showing that the impacts to fish and shellfish, including
important forage and predator species, within the watershed will be
comparable to those which would result if you were to implement the
requirements of paragraphs (b)(1) and (2) of this section. The Director
will consider information provided by any fishery management agency and
may also consider data and information from other sources.
* * * * *
0
6. Section 125.86 is amended as follows:
0
a. Revise paragraphs (a)(1)(ii), (b)(3) introductory text, and
(b)(4)(iii) introductory text.
0
b. Remove and reserve paragraphs (c)(2)(ii), (c)(2)(iv)(C), and
(c)(2)(iv)(D)(2).
Sec. 125.86 As an owner or operator of a new facility, what must I
collect and submit when I apply for my new or reissued NPDES permit?
(a) * * *
(1) * * *
(ii) The Track I requirements for new facilities that withdraw
greater than 2 mgd and less than 10 mgd in Sec. 125.84(c);
* * * * *
(b) * * *
(3) Source waterbody flow information. You must submit to the
Director the following information to demonstrate that your cooling
water intake structure meets the flow requirements in Sec.
125.84(b)(3) or (c)(2).
* * * * *
(4) * * *
(iii) The owner or operator of a new facility required to install
design and construction technologies and/or operational measures must
develop a plan which explains the technologies and measures selected;
this plan shall be based on information collected for the Source Water
Biological Baseline Characterization required by 40 CFR 122.21(r)(4).
Examples of appropriate technologies include, but are not limited to,
wedgewire screens, fine mesh screens, fish handling and return systems,
barrier nets, aquatic filter barrier systems, etc. Examples of
appropriate operational measures include, but are not limited to,
seasonal shutdowns or reductions in flow, and continuous operations of
screens, etc. The plan must contain the following information:
* * * * *
0
7. Section 125.87 is amended by revising paragraphs (a) introductory
text and (a)(2) to read as follows:
Sec. 125.87 As an owner or operator of a new facility, must I perform
monitoring?
* * * * *
(a) Biological monitoring. You must monitor both impingement and
entrainment of the commercial, recreational, and forage base fish and
shellfish species identified in either the Source Water Baseline
Biological Characterization data required by 40 CFR 122.21(r)(4) or the
Comprehensive Demonstration Study required by Sec. 125.86(c)(2),
depending on whether you chose to comply with Track I or Track II. The
monitoring methods used must be consistent with those used for the
Source Water Baseline Biological Characterization data required in 40
CFR 122.21(r)(4) or the Comprehensive Demonstration Study required by
Sec. 125.86(c)(2). You must follow the monitoring frequencies
identified below for at least two (2) years after the initial permit
issuance. After that time, the Director may approve a request for less
frequent sampling in the remaining years of the permit term and when
the permit is reissued, if the Director determines the supporting data
show that less frequent monitoring would still allow for the detection
of any seasonal and daily variations in the species and numbers of
individuals that are impinged or entrained.
* * * * *
(2) Entrainment sampling. You must collect samples at least
biweekly to monitor entrainment rates (simple enumeration) for each
species over a 24-hour period during the primary period of
reproduction, larval recruitment, and peak abundance identified during
the Source Water Baseline Biological Characterization required by 40
CFR 122.21(r)(4) or the Comprehensive Demonstration Study required in
Sec. 125.86(c)(2). You must collect samples only when the cooling
water intake structure is in operation.
* * * * *
0
8. Section 125.89 is amended by revising paragraphs (a) introductory
text and (b)(1)(i) and (ii) to read as follows:
Sec. 125.89 As the Director, what must I do to comply with the
requirements of this subpart?
(a) Permit application. As the Director, you must review materials
submitted by the applicant under 40 CFR 122.21(r)(4) and Sec. 125.86
at the time of the initial permit application and before each permit
renewal or reissuance.
* * * * *
(b) * * *
(1) * * *
(i) If an owner or operator of a facility chooses Track I, you must
review the Design and Construction Technology Plan required in Sec.
125.86(b)(4) to evaluate the suitability and feasibility of the
technology proposed to minimize impingement mortality and entrainment
of all life stages of fish and shellfish. In the first permit issued,
you must put a condition requiring the facility to reduce impingement
mortality and entrainment commensurate with the implementation of the
technologies in the permit. Under subsequent permits, the Director must
review the performance of the technologies implemented and require
additional or different design and construction technologies, if needed
to minimize impingement mortality and entrainment
[[Page 48430]]
of all life stages of fish and shellfish. In addition, you must
consider whether more stringent conditions are reasonably necessary in
accordance with Sec. 125.84(e).
(ii) If an owner or operator of a facility chooses Track II, you
must review the information submitted with the Comprehensive
Demonstration Study required in Sec. 125.86(c)(2) and evaluate the
suitability of the proposed design and construction technologies and
operational measures to determine whether they will reduce both
impingement mortality and entrainment of all life stages of fish and
shellfish to 90 percent or greater of the reduction that could be
achieved through Track I. In addition, you must review the Verification
Monitoring Plan in Sec. 125.86(c)(2)(iv)(D) and require that the
proposed monitoring begin at the start of operations of the cooling
water intake structure and continue for a sufficient period of time to
demonstrate that the technologies and operational measures meet the
requirements in Sec. 125.84(d)(1). Under subsequent permits, the
Director must review the performance of the additional and/or different
technologies or measures used and determine that they reduce the level
of adverse environmental impact from the cooling water intake
structures to a comparable level that the facility would achieve were
it to implement the requirements of Sec. 125.84(b)(1) and (2).
* * * * *
0
9. The suspension of 40 CFR 125.90(a), (c), and (d), and 125.91 through
125.99, published on July 9, 2007 (72 FR 37109) is lifted.
0
10. Subpart J to part 125 is revised to read as follows:
Subpart J--Requirements Applicable to Cooling Water Intake Structures
for Existing Facilities Under Section 316(b) of the Clean Water Act
Sec.
125.90 Purpose of this subpart.
125.91 Applicability.
125.92 Special definitions.
125.93 [Reserved]
125.94 As an owner or operator of an existing facility, what must I
do to comply with this subpart?
125.95 Permit application and supporting information requirements.
125.96 Monitoring requirements.
125.97 Other permit reporting and recordkeeping requirements.
125.98 Director requirements.
125.99 [Reserved]
Subpart J--Requirements Applicable to Cooling Water Intake
Structures for Existing Facilities Under Section 316(b) of the
Clean Water Act
Sec. 125.90 Purpose of this subpart.
(a) This subpart establishes the section 316(b) requirements that
apply to cooling water intake structures at existing facilities that
are subject to this subpart. These requirements include a number of
components. These include standards for minimizing adverse
environmental impact associated with the use of cooling water intake
structures and required procedures (e.g., permit application
requirements, information submission requirements) for establishing the
appropriate technology requirements at certain specified facilities as
well as monitoring, reporting, and recordkeeping requirements to
demonstrate compliance. In combination, these components represent the
best technology available for minimizing adverse environmental impact
associated with the use of cooling water intake structures at existing
facilities. These requirements are to be established and implemented in
National Pollutant Discharge Elimination System (NPDES) permits issued
under the Clean Water Act (CWA).
(b) Cooling water intake structures not subject to requirements
under Sec. Sec. 125.94 through 125.99 or subparts I or N of this part
must meet requirements under section 316(b) of the CWA established by
the Director on a case-by-case, best professional judgment (BPJ) basis.
(c) Nothing in this subpart shall be construed to preclude or deny
the right under section 510 of the CWA of any State or political
subdivision of a State or any interstate agency to adopt or enforce any
requirement with respect to control or abatement of pollution that is
more stringent than required by Federal law.
Note to Sec. 125.90. This regulation does not authorize take, as
defined by the Endangered Species Act, 16 U.S.C. 1532(19). The U.S.
Fish and Wildlife Service and National Marine Fisheries Service have
determined that any impingement (including entrapment) or entrainment
of Federally-listed species constitutes take. Such take may be
authorized pursuant to the conditions of a permit issued under 16
U.S.C. 1539(a) or where consistent with an Incidental Take Statement
contained in a Biological Opinion pursuant to 16 U.S.C. 1536(o).
Sec. 125.91 Applicability.
(a) The owner or operator of an existing facility, as defined in
Sec. 125.92(k), is subject to the requirements at Sec. Sec. 125.94
through 125.99 if:
(1) The facility is a point source;
(2) The facility uses or proposes to use one or more cooling water
intake structures with a cumulative design intake flow (DIF) of greater
than 2 million gallons per day (mgd) to withdraw water from waters of
the United States; and
(3) Twenty-five percent or more of the water the facility withdraws
on an actual intake flow basis is used exclusively for cooling
purposes.
(b) Use of a cooling water intake structure includes obtaining
cooling water by any sort of contract or arrangement with one or more
independent suppliers of cooling water if the independent supplier
withdraws water from waters of the United States but is not itself a
new or existing facility as defined in subparts I or J of this part,
except as provided in paragraphs (c) and (d) of this section. An owner
or operator of an existing facility may not circumvent these
requirements by creating arrangements to receive cooling water from an
entity that is not itself a facility subject to subparts I or J of this
part.
(c) Obtaining cooling water from a public water system, using
reclaimed water from wastewater treatment facilities or desalination
plants, or recycling treated process wastewater effluent as cooling
water does not constitute use of a cooling water intake structure for
purposes of this subpart.
(d) This subpart does not apply to offshore seafood processing
facilities, offshore liquefied natural gas terminals, and offshore oil
and gas extraction facilities that are existing facilities as defined
in Sec. 125.92(k). The owners and operators of such facilities must
meet requirements established by the Director on a case-by-case, best
professional judgment (BPJ) basis.
Sec. 125.92 Special definitions.
In addition to the definitions provided in 40 CFR 122.2, the
following special definitions apply to this subpart:
(a) Actual Intake Flow (AIF) means the average volume of water
withdrawn on an annual basis by the cooling water intake structures
over the past three years. After October 14, 2019, Actual Intake Flow
means the average volume of water withdrawn on an annual basis by the
cooling water intake structures over the previous five years. Actual
intake flow is measured at a location within the cooling water intake
[[Page 48431]]
structure that the Director deems appropriate. The calculation of
actual intake flow includes days of zero flow. AIF does not include
flows associated with emergency and fire suppression capacity.
(b) All life stages of fish and shellfish means eggs, larvae,
juveniles, and adults. It does not include members of the infraclass
Cirripedia in the subphylum Crustacea (barnacles), green mussels (Perna
viridis), or zebra mussels (Dreissena polymorpha). The Director may
determine that all life stages of fish and shellfish does not include
other specified nuisance species.
(c) Closed-cycle recirculating system means a system designed and
properly operated using minimized make-up and blowdown flows withdrawn
from a water of the United States to support contact or non-contact
cooling uses within a facility, or a system designed to include certain
impoundments. A closed-cycle recirculating system passes cooling water
through the condenser and other components of the cooling system and
reuses the water for cooling multiple times.
(1) Closed-cycle recirculating system includes a facility with wet,
dry, or hybrid cooling towers, a system of impoundments that are not
waters of the United States, or any combination thereof. A properly
operated and maintained closed-cycle recirculating system withdraws new
source water (make-up water) only to replenish losses that have
occurred due to blowdown, drift, and evaporation. If waters of the
United States are withdrawn for purposes of replenishing losses to a
closed-cycle recirculating system other than those due to blowdown,
drift, and evaporation from the cooling system, the Director may
determine a cooling system is a closed-cycle recirculating system if
the facility demonstrates to the satisfaction of the Director that
make-up water withdrawals attributed specifically to the cooling
portion of the cooling system have been minimized.
(2) Closed-cycle recirculating system also includes a system with
impoundments of waters of the U.S. where the impoundment was
constructed prior to October 14, 2014 and created for the purpose of
serving as part of the cooling water system as documented in the
project purpose statement for any required Clean Water Act section 404
permit obtained to construct the impoundment. In the case of an
impoundment whose construction pre-dated the CWA requirement to obtain
a section 404 permit, documentation of the project's purpose must be
demonstrated to the satisfaction of the Director. This documentation
could be some other license or permit obtained to lawfully construct
the impoundment for the purposes of a cooling water system, or other
such evidence as the Director finds necessary. For impoundments
constructed in uplands or not in waters of the United States, no
documentation of a section 404 or other permit is required. If waters
of the United States are withdrawn for purposes of replenishing losses
to a closed-cycle recirculating system other than those due to
blowdown, drift, and evaporation from the cooling system, the Director
may determine a cooling system is a closed-cycle recirculating system
if the facility demonstrates to the satisfaction of the Director that
make-up water withdrawals attributed specifically to the cooling
portion of the cooling system have been minimized.
(d) Contact cooling water means water used for cooling which comes
into direct contact with any raw material, product, or byproduct.
Examples of contact cooling water may include but are not limited to
quench water at facilities, cooling water in a cracking unit, and
cooling water directly added to food and agricultural products
processing.
(e) Cooling water means water used for contact or non-contact
cooling, including water used for equipment cooling, evaporative
cooling tower makeup, and dilution of effluent heat content. The
intended use of the cooling water is to absorb waste heat rejected from
the process or processes used, or from auxiliary operations on the
facility's premises. Cooling water obtained from a public water system,
reclaimed water from wastewater treatment facilities or desalination
plants, treated effluent from a manufacturing facility, or cooling
water that is used in a manufacturing process either before or after it
is used for cooling as process water, is not considered cooling water
for the purposes of calculating the percentage of a facility's intake
flow that is used for cooling purposes in Sec. 125.91(a)(3).
(f) Cooling water intake structure means the total physical
structure and any associated constructed waterways used to withdraw
cooling water from waters of the United States. The cooling water
intake structure extends from the point at which water is first
withdrawn from waters of the United States up to, and including the
intake pumps.
(g) Design intake flow (DIF) means the value assigned during the
cooling water intake structure design to the maximum instantaneous rate
of flow of water the cooling water intake system is capable of
withdrawing from a source waterbody. The facility's DIF may be adjusted
to reflect permanent changes to the maximum capabilities of the cooling
water intake system to withdraw cooling water, including pumps
permanently removed from service, flow limit devices, and physical
limitations of the piping. DIF does not include values associated with
emergency and fire suppression capacity or redundant pumps (i.e., back-
up pumps).
(h) Entrainment means any life stages of fish and shellfish in the
intake water flow entering and passing through a cooling water intake
structure and into a cooling water system, including the condenser or
heat exchanger. Entrainable organisms include any organisms potentially
subject to entrainment. For purposes of this subpart, entrainment
excludes those organisms that are collected or retained by a sieve with
maximum opening dimension of 0.56 inches. Examples of sieves meeting
this definition include but are not limited to a \3/8\ inch square
mesh, or a \1/2\ by \1/4\ inch mesh. A facility must use the same mesh
size when counting entrainment as is used when counting impingement.
(i) Entrainment mortality means death as a result of entrainment
through the cooling water intake structure, or death as a result of
exclusion from the cooling water intake structure by fine mesh screens
or other protective devices intended to prevent the passage of
entrainable organisms through the cooling water intake structure.
(j) Entrapment means the condition where impingeable fish and
shellfish lack the means to escape the cooling water intake. Entrapment
includes but is not limited to: Organisms caught in the bucket of a
traveling screen and unable to reach a fish return; organisms caught in
the forebay of a cooling water intake system without any means of being
returned to the source waterbody without experiencing mortality; or
cooling water intake systems where the velocities in the intake pipes
or in any channels leading to the forebay prevent organisms from being
able to return to the source waterbody through the intake pipe or
channel.
(k) Existing facility means any facility that commenced
construction as described in 40 CFR 122.29(b)(4) on or before January
17, 2002 (or July 17, 2006 for an offshore oil and gas extraction
facility) and any modification of, or any addition of a unit at such a
facility. A facility built adjacent to another facility would be a new
facility while the original facility would remain as an exiting
facility for purposes of this subpart. A facility cannot both be an
existing facility and a new facility as defined at Sec. 125.83.
[[Page 48432]]
(l) Flow reduction means any modification to a cooling water intake
structure or its operation that serves to reduce the volume of cooling
water withdrawn. Examples include, but are not limited to, variable
speed pumps, seasonal flow reductions, wet cooling towers, dry cooling
towers, hybrid cooling towers, unit closures, or substitution for
withdrawals by reuse of effluent from a nearby facility.
(m) Fragile species means those species of fish and shellfish that
are least likely to survive any form of impingement. For purposes of
this subpart, fragile species are defined as those with an impingement
survival rate of less than 30 percent, including but not limited to
alewife, American shad, Atlantic herring, Atlantic long-finned squid,
Atlantic menhaden, bay anchovy, blueback herring, bluefish, butterfish,
gizzard shad, grey snapper, hickory shad, menhaden, rainbow smelt,
round herring, and silver anchovy.
(n) Impingement means the entrapment of any life stages of fish and
shellfish on the outer part of an intake structure or against a
screening device during periods of intake water withdrawal. For
purposes of this subpart, impingement includes those organisms
collected or retained on a sieve with maximum distance in the opening
of 0.56 inches, and excludes those organisms that pass through the
sieve. Examples of sieves meeting this definition include but are not
limited to a \3/8\ inch square mesh, or a \1/2\ by \1/4\ inch mesh.
This definition is intended to prevent the conversion of entrainable
organisms to counts of impingement or impingement mortality. The owner
or operator of a facility must use a sieve with the same mesh size when
counting entrainment as is used when counting impingement.
(o) Impingement mortality (IM) means death as a result of
impingement. Impingement mortality also includes organisms removed from
their natural ecosystem and lacking the ability to escape the cooling
water intake system, and thus subject to inevitable mortality.
(p) Independent supplier means an entity, other than the regulated
facility, that owns and operates its own cooling water intake structure
and directly withdraws water from waters of the United States. The
supplier provides the cooling water to other facilities for their use,
but may itself also use a portion of the water. An entity that provides
potable water to residential populations (e.g., public water system) is
not a supplier for purposes of this subpart.
(q) Latent mortality means the delayed mortality of organisms that
were initially alive upon being impinged or entrained but that do not
survive the delayed effects of impingement and entrainment during an
extended holding period. Delayed effects of impingement and entrainment
include but are not limited to temperature change, physical stresses,
and chemical stresses.
(r) Minimize means to reduce to the smallest amount, extent, or
degree reasonably possible.
(s) Modified traveling screen means a traveling water screen that
incorporates measures protective of fish and shellfish, including but
not limited to: Screens with collection buckets or equivalent
mechanisms designed to minimize turbulence to aquatic life; addition of
a guard rail or barrier to prevent loss of fish from the collection
system; replacement of screen panel materials with smooth woven mesh,
drilled mesh, molded mesh, or similar materials that protect fish from
descaling and other abrasive injury; continuous or near-continuous
rotation of screens and operation of fish collection equipment to
ensure any impinged organisms are recovered as soon as practical; a low
pressure wash or gentle vacuum to remove fish prior to any high
pressure spray to remove debris from the screens; and a fish handling
and return system with sufficient water flow to return the fish
directly to the source water in a manner that does not promote
predation or re-impingement of the fish, or require a large vertical
drop. The Director may approve of fish being returned to water sources
other than the original source water, taking into account any
recommendations from the Services with respect to endangered or
threatened species. Examples of modified traveling screens include, but
are not limited to: Modified Ristroph screens with a fish handling and
return system, dual flow screens with smooth mesh, and rotary screens
with fish returns or vacuum returns.
(t) Moribund means dying; close to death.
(u) New unit means a new ``stand-alone'' unit at an existing
facility where construction of the new unit begins after October 14,
2014 and that does not otherwise meet the definition of a new facility
at Sec. 125.83 or is not otherwise already subject to subpart I of
this part. A stand-alone unit is a separate unit that is added to a
facility for either the same general industrial operation or another
purpose. A new unit may have its own dedicated cooling water intake
structure, or the new unit may use an existing or modified cooling
water intake structure.
(v) Offshore velocity cap means a velocity cap located a minimum of
800 feet from the shoreline. A velocity cap is an open intake designed
to change the direction of water withdrawal from vertical to
horizontal, thereby creating horizontal velocity patterns that result
in avoidance of the intake by fish and other aquatic organisms. For
purposes of this subpart, the velocity cap must use bar screens or
otherwise exclude marine mammals, sea turtles, and other large aquatic
organisms.
(w) Operational measure means a modification to any operation that
serves to minimize impact to all life stages of fish and shellfish from
the cooling water intake structure. Examples of operational measures
include, but are not limited to, more frequent rotation of traveling
screens, use of a low pressure wash to remove fish prior to any high
pressure spray to remove debris, maintaining adequate volume of water
in a fish return, and debris minimization measures such as air sparging
of intake screens and/or other measures taken to maintain the design
intake velocity.
(x) Social benefits means the increase in social welfare that
results from taking an action. Social benefits include private benefits
and those benefits not taken into consideration by private decision
makers in the actions they choose to take, including effects occurring
in the future. Benefits valuation involves measuring the physical and
biological effects on the environment from the actions taken. Benefits
are generally treated one or more of three ways: A narrative containing
a qualitative discussion of environmental effects, a quantified
analysis expressed in physical or biological units, and a monetized
benefits analysis in which dollar values are applied to quantified
physical or biological units. The dollar values in a social benefits
analysis are based on the principle of willingness-to-pay (WTP), which
captures monetary benefits by measuring what individuals are willing to
forgo in order to enjoy a particular benefit. Willingness-to-pay for
nonuse values can be measured using benefits transfer or a stated
preference survey.
(y) Social costs means costs estimated from the viewpoint of
society, rather than individual stakeholders. Social cost represents
the total burden imposed on the economy; it is the sum of all
opportunity costs incurred associated with taking actions. These
opportunity costs consist of the value lost to society of all the goods
and services that will not be produced and consumed as a facility
complies with permit requirements, and society reallocates
[[Page 48433]]
resources away from other production activities and towards minimizing
adverse environmental impacts.
Sec. 125.93 [Reserved]
Sec. 125.94 As an owner or operator of an existing facility, what
must I do to comply with this subpart?
(a) Applicable Best Technology Available for Minimizing Adverse
Environmental Impact (BTA) standards. (1) On or after October 14, 2014,
the owner or operator of an existing facility with a cumulative design
intake flow (DIF) greater than 2 mgd is subject to the BTA (best
technology available) standards for impingement mortality under
paragraph (c) of this section, and entrainment under paragraph (d) of
this section including any measures to protect Federally-listed
threatened and endangered species and designated critical habitat
established under paragraph (g) of this section.
(2) Prior to October 14, 2014, the owner or operator of an existing
facility with a cumulative design intake flow (DIF) greater than 2 mgd
is subject to site-specific impingement mortality and entrainment
requirements as determined by the Director on a case-by-case Best
Professional Judgment basis. The Director's BTA determination may be
based on consideration of some or all of the factors at Sec.
125.98(f)(2) and (3) and the requirements of Sec. 125.94(c). If the
Director requires additional information to make the decision on what
BTA requirements to include in the applicant's permit for impingement
mortality and entrainment, the Director should consider whether to
require any of the information at 40 CFR 122.21(r).
(3) The owner or operator of a new unit is subject to the
impingement mortality and entrainment standards under paragraph (e) of
this section for all cooling water intake flows used by the new unit.
The remainder of the existing facility is subject to the impingement
mortality standard under paragraph (c) of this section, and the
entrainment standard under paragraph (d) of this section. The entire
existing facility including any new units is subject to any measures to
protect Federally-listed threatened and endangered species and
designated critical habitat established under paragraph (g) of this
section.
(b) Compliance with BTA standards. (1) Aligning compliance
deadlines for impingement mortality and entrainment requirements. After
issuance of a final permit that establishes the entrainment
requirements under Sec. 125.94(d), the owner or operator of an
existing facility must comply with the impingement mortality standard
in Sec. 125.94(c) as soon as practicable. The Director may establish
interim compliance milestones in the permit.
(2) After issuance of a final permit establishing the entrainment
requirements under Sec. 125.94(d), the owner or operator of an
existing facility must comply with the entrainment standard as soon as
practicable, based on a schedule of requirements established by the
Director. The Director may establish interim compliance milestones in
the permit.
(3) The owner or operator of a new unit at an existing facility
must comply with the BTA standards at Sec. 125.94(e) with respect to
the new unit upon commencement of the new unit's operation.
(c) BTA Standards for Impingement Mortality. The owner or operator
of an existing facility must comply with one of the alternatives in
paragraphs (c)(1) through (7) of this section, except as provided in
paragraphs (c)(11) or (12) of this section, when approved by the
Director. In addition, a facility may also be subject to the
requirements of paragraphs (c)(8), (c)(9), or (g) of this section if
the Director requires such additional measures.
(1) Closed-cycle recirculating system. A facility must operate a
closed-cycle recirculating system as defined at Sec. 125.92(c). In
addition, you must monitor the actual intake flows at a minimum
frequency of daily. The monitoring must be representative of normal
operating conditions, and must include measuring cooling water
withdrawals, make-up water, and blow down volume. In lieu of daily
intake flow monitoring, you may monitor your cycles of concentration at
a minimum frequency of daily; or
(2) 0.5 Feet Per Second Through-Screen Design Velocity. A facility
must operate a cooling water intake structure that has a maximum design
through-screen intake velocity of 0.5 feet per second. The owner or
operator of the facility must submit information to the Director that
demonstrates that the maximum design intake velocity as water passes
through the structural components of a screen measured perpendicular to
the screen mesh does not exceed 0.5 feet per second. The maximum
velocity must be achieved under all conditions, including during
minimum ambient source water surface elevations (based on BPJ using
hydrological data) and during periods of maximum head loss across the
screens or other devices during normal operation of the intake
structure; or
(3) 0.5 Feet Per Second Through-Screen Actual Velocity. A facility
must operate a cooling water intake structure that has a maximum
through-screen intake velocity of 0.5 feet per second. The owner or
operator of the facility must submit information to the Director that
demonstrates that the maximum intake velocity as water passes through
the structural components of a screen measured perpendicular to the
screen mesh does not exceed 0.5 feet per second. The maximum velocity
must be achieved under all conditions, including during minimum ambient
source water surface elevations (based on best professional judgment
using hydrological data) and during periods of maximum head loss across
the screens or other devices during normal operation of the intake
structure. The Director may authorize the owner or operator of the
facility to exceed the 0.5 fps velocity at an intake for brief periods
for the purpose of maintaining the cooling water intake system, such as
backwashing the screen face. If the intake does not have a screen, the
maximum intake velocity perpendicular to the opening of the intake must
not exceed 0.5 feet per second during minimum ambient source water
surface elevations. In addition, you must monitor the velocity at the
screen at a minimum frequency of daily. In lieu of velocity monitoring
at the screen face, you may calculate the through-screen velocity using
water flow, water depth, and the screen open areas; or
(4) Existing offshore velocity cap. A facility must operate an
existing offshore velocity cap as defined at Sec. 125.92(v) that was
installed on or before October 14, 2014. Offshore velocity caps
installed after October 14, 2014 must make either a demonstration under
paragraph (c)(6) of this section or meet the performance standard under
paragraph (c)(7) of this section. In addition, you must monitor your
intake flow at a minimum frequency of daily; or
(5) Modified traveling screens. A facility must operate a modified
traveling screen that the Director determines meets the definition at
Sec. 125.92(s) and that, after review of the information required in
the impingement technology performance optimization study at 40 CFR
122.21(r)(6)(i), the Director determines is the best technology
available for impingement reduction at the site. As the basis for the
Director's determination, the owner or operator of the facility must
demonstrate the technology is or will be optimized to minimize
impingement mortality of all non-fragile species. The Director must
include verifiable and enforceable permit conditions that ensure the
[[Page 48434]]
technology will perform as demonstrated; or
(6) Systems of technologies as the BTA for impingement mortality. A
facility must operate a system of technologies, management practices,
and operational measures, that, after review of the information
required in the impingement technology performance optimization study
at 40 CFR 122.21(r)(6)(ii), the Director determines is the best
technology available for impingement reduction at your cooling water
intake structures. As the basis for the Director's determination, the
owner or operator of the facility must demonstrate the system of
technology has been optimized to minimize impingement mortality of all
non-fragile species. In addition, the Director's decision will be
informed by comparing the impingement mortality performance data under
40 CFR 122.21(r)(6)(ii)(D) to the impingement mortality performance
standard that would otherwise apply under paragraph (c)(7) of this
section. The Director must include verifiable and enforceable permit
conditions that ensure the system of technologies will perform as
demonstrated; or
(7) Impingement mortality performance standard. A facility must
achieve a 12-month impingement mortality performance standard of all
life stages of fish and shellfish of no more than 24 percent mortality,
including latent mortality, for all non-fragile species together that
are collected or retained in a sieve with maximum opening dimension of
0.56 inches and kept for a holding period of 18 to 96 hours. The
Director may, however, prescribe an alternative holding period. You
must conduct biological monitoring at a minimum frequency of monthly to
demonstrate your impingement mortality performance. Each month, you
must use all of the monitoring data collected during the previous 12
months to calculate the 12-month survival percentage. The 12-month
impingement mortality performance standard is the total number of fish
killed divided by the total number of fish impinged over the course of
the entire 12 months. The owner or operator of the facility must choose
whether to demonstrate compliance with this requirement for the entire
facility, or for each individual cooling water intake structure for
which this paragraph (c)(7) is the selected impingement mortality
requirement.
(8) Additional measures for shellfish. The owner or operator must
comply with any additional measures, such as seasonal deployment of
barrier nets, established by the Director to protect shellfish.
(9) Additional measures for other species. The owner or operator
must comply with any additional measures, established by the Director,
to protect fragile species.
(10) Reuse of other water for cooling purposes. This impingement
mortality standard does not apply to that portion of cooling water that
is process water, gray water, waste water, reclaimed water, or other
waters reused as cooling water in lieu of water obtained by marine,
estuarine, or freshwater intakes.
(11) De minimis rate of impingement. In limited circumstances,
rates of impingement may be so low at a facility that additional
impingement controls may not be justified. The Director, based on
review of site-specific data submitted under 40 CFR 122.21(r), may
conclude that the documented rate of impingement at the cooling water
intake is so low that no additional controls are warranted. For
threatened or endangered species, all unauthorized take is prohibited
by the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). Notice
of a determination that no additional impingement controls are
warranted must be included in the draft or proposed permit and the
Director's response to all comments on this determination must be
included in the record for the final permit.
(12) Low capacity utilization power generating units. If an
existing facility has a cooling water intake structure used for one or
more existing electric generating units, each with an annual average
capacity utilization rate of less than 8 percent averaged over a 24-
month block contiguous period, the owner or operator may request the
Director consider less stringent requirements for impingement mortality
for that cooling water intake structure. The Director may, based on
review of site-specific data concerning cooling water system data under
40 CFR 122.21(r)(5), establish the BTA standards for impingement
mortality for that cooling water intake structure that are less
stringent than paragraphs (c)(1) through (7) of this section.
(d) BTA standards for entrainment for existing facilities. The
Director must establish BTA standards for entrainment for each intake
on a site-specific basis. These standards must reflect the Director's
determination of the maximum reduction in entrainment warranted after
consideration of the relevant factors as specified in Sec. 125.98. The
Director may also require periodic reporting on your progress towards
installation and operation of site-specific entrainment controls. These
reports may include updates on planning, design, and construction or
other appropriate topics as required by the Director. If the Director
determines that the site-specific BTA standard for entrainment under
this paragraph requires performance equivalent to a closed-cycle
recirculating system as defined at Sec. 125.92(c), then under Sec.
125.94(c)(1) your facility will comply with the impingement mortality
standard for that intake.
(e) BTA standards for impingement mortality and entrainment for new
units at existing facilities. The owner or operator of a new unit at an
existing facility must achieve the impingement mortality and
entrainment standards provided in either paragraph (e)(1) or (2) of
this section, except as provided in paragraph (e)(4) of this section,
for each cooling water intake structure used to provide cooling water
to the new unit.
(1) Requirements for new units. The owner or operator of the
facility must reduce the design intake flow for the new unit, at a
minimum, to a level commensurate with that which can be attained by the
use of a closed-cycle recirculating system for the same level of
cooling for the new unit.
(2) Alternative requirements for new units. The owner or operator
of a new unit at an existing facility must demonstrate to the Director
that the technologies and operational measures employed will reduce the
level of adverse environmental impact from any cooling water intake
structure used to supply cooling water to the new unit to a comparable
level to that which would be achieved under Sec. 125.94(e)(1). This
demonstration must include a showing that the entrainment reduction is
equivalent to 90 percent or greater of the reduction that could be
achieved through compliance with Sec. 125.94(e)(1). In addition this
demonstration must include a showing that the impacts to fish and
shellfish, including important forage and predator species, within the
watershed will be comparable to those which would result under the
requirements of Sec. 125.94(e)(1).
(3) This standard does not apply to:
(i) Process water, gray water, waste water, reclaimed water, or
other waters reused as cooling water in lieu of water obtained by
marine, estuarine, or freshwater intakes;
(ii) Cooling water used by manufacturing facilities for contact
cooling purposes;
(iii) Portions of those water withdrawals for auxiliary plant
cooling uses comprising less than two mgd of the facility's flow; and
(iv) Any quantity of emergency back-up water flows.
(4) The owner or operator of a facility must comply with any
alternative
[[Page 48435]]
requirements established by the Director pursuant to Sec.
125.98(b)(7).
(5) For cooling water flows excluded by paragraph (e)(3) of this
section, the Director may establish additional BTA standards for
impingement mortality and entrainment on a site-specific basis.
(f) Nuclear facilities. If the owner or operator of a nuclear
facility demonstrates to the Director, upon the Director's consultation
with the Nuclear Regulatory Commission, the Department of Energy, or
the Naval Nuclear Propulsion Program, that compliance with this subpart
would result in a conflict with a safety requirement established by the
Commission, the Department, or the Program, the Director must make a
site-specific determination of best technology available for minimizing
adverse environmental impact that would not result in a conflict with
the Commission's, the Department's, or the Program's safety
requirement.
(g) Additional measures to protect Federally-listed threatened and
endangered species and designated critical habitat. The Director may
establish in the permit additional control measures, monitoring
requirements, and reporting requirements that are designed to minimize
incidental take, reduce or remove more than minor detrimental effects
to Federally-listed species and designated critical habitat, or avoid
jeopardizing Federally-listed species or destroying or adversely
modifying designated critical habitat (e.g., prey base). Such control
measures, monitoring requirements, and reporting requirements may
include measures or requirements identified by an appropriate Field
Office of the U.S. Fish and Wildlife Service and/or Regional Office of
the National Marine Fisheries Service during the 60 day review period
pursuant to Sec. 125.98(h) or the public notice and comment period
pursuant to 40 CFR 124.10. Where established in the permit by the
Director, the owner or operator must implement any such requirements.
(h) Interim BTA requirements. An owner or operator of a facility
may be subject to interim BTA requirements established by the Director
in the permit on a site-specific basis.
(i) More stringent standards. The Director must establish more
stringent requirements as best technology available for minimizing
adverse environmental impact if the Director determines that compliance
with the applicable requirements of this section would not meet the
requirements of applicable State or Tribal law, including compliance
with applicable water quality standards (including designated uses,
criteria, and antidegradation requirements).
(j) The owner or operator of a facility subject to this subpart
must:
(1) Submit and retain permit application and supporting information
as specified in Sec. 125.95;
(2) Conduct compliance monitoring as specified in Sec. 125.96; and
(3) Report information and data and keep records as specified in
Sec. 125.97.
Sec. 125.95 Permit application and supporting information
requirements.
(a) Permit application submittal timeframe for existing facilities.
(1) The owner or operator of a facility subject to this subpart whose
currently effective permit expires after July 14, 2018, must submit to
the Director the information required in the applicable provisions of
40 CFR 122.21(r) when applying for a subsequent permit (consistent with
the owner or operator's duty to reapply pursuant to 40 CFR 122.21(d)).
(2) The owner or operator of a facility subject to this subpart
whose currently effective permit expires prior to or on July 14, 2018,
may request the Director to establish an alternate schedule for the
submission of the information required in 40 CFR 122.21(r) when
applying for a subsequent permit (consistent with the owner or
operator's duty to reapply pursuant to 40 CFR 122.21(d)). If the owner
or operator of the facility demonstrates that it could not develop the
required information by the applicable date for submission, the
Director must establish an alternate schedule for submission of the
required information.
(3) The Director may waive some or all of the information
requirements of 40 CFR 122.21(r) if the intake is located in a manmade
lake or reservoir and the fisheries are stocked and managed by a State
or Federal natural resources agency or the equivalent. If the manmade
lake or reservoir contains Federally-listed threatened and endangered
species, or is designated critical habitat, such a waiver shall not be
granted.
(b) Permit application submittal timeframe for new units. For the
owner or operator of any new unit at an existing facility subject to
this subpart:
(1) You must submit the information required in 40 CFR 122.21(r)
for the new unit to the Director no later than 180 days before the
planned commencement of cooling water withdrawals for the operation of
the new unit. If you have already submitted the required information in
your previous permit application, you may choose to submit an update to
the required information.
(2) The owner or operator is encouraged to submit their permit
applications well in advance of the 180 day requirement to avoid delay.
(c) Permit applications. After the initial submission of the 40 CFR
122.21(r) permit application studies after October 14, 2014, the owner
or operator of a facility may, in subsequent permit applications,
request to reduce the information required, if conditions at the
facility and in the waterbody remain substantially unchanged since the
previous application so long as the relevant previously submitted
information remains representative of current source water, intake
structure, cooling water system, and operating conditions. Any habitat
designated as critical or species listed as threatened or endangered
after issuance of the current permit whose range of habitat or
designated critical habit includes waters where a facility intake is
located constitutes potential for a substantial change that must be
addressed by the owner/operator in subsequent permit applications,
unless the facility received an exemption pursuant to 16 U.S.C. 1536(o)
or a permit pursuant to 16 U.S.C. 1539(a) or there is no reasonable
expectation of take. The owner or operator of a facility must submit
its request for reduced cooling water intake structure and waterbody
application information to the Director at least two years and six
months prior to the expiration of its NPDES permit. The owner or
operator's request must identify each element in this subsection that
it determines has not substantially changed since the previous permit
application and the basis for the determination. The Director has the
discretion to accept or reject any part of the request.
(d) The Director has the discretion to request additional
information to supplement the permit application, including a request
to inspect a facility.
(e) Permit application records. The owner or operator of a facility
must keep records of all submissions that are part of its permit
application until the subsequent permit is issued to document
compliance with the requirements of this section. If the Director
approves a request for reduced permit application studies under Sec.
125.95(a) or (c) or Sec. 125.98(g), the owner or operator of a
facility must keep records of all submissions that are part of the
previous permit application until the subsequent permit is issued.
(f) In addition, in developing its permit application, the owner or
operator of an existing facility or new unit at an existing facility
must, based on readily available information at the
[[Page 48436]]
time of the permit application, instead of the information required at
Sec. 122.21(r)(4)(vi) of this chapter identify all Federally-listed
threatened and endangered species and/or designated critical habitat
that are or may be present in the action area.
(g) Certification. The owner or operator of a facility must certify
that its permit application is true, accurate and complete pursuant to
Sec. 122.22(d) of this chapter.
Sec. 125.96 Monitoring requirements.
(a) Monitoring requirements for impingement mortality for existing
facilities. The Director may establish monitoring requirements in
addition to those specified at Sec. 125.94(c), including, for example,
biological monitoring, intake velocity and flow measurements. If the
Director establishes such monitoring, the specific protocols will be
determined by the Director.
(b) Monitoring requirements for entrainment for existing
facilities. Monitoring requirements for entrainment will be determined
by the Director on a site-specific basis, as appropriate, to meet
requirements under Sec. 125.94(d).
(c) Additional monitoring requirements for existing facilities. The
Director may require additional monitoring for impingement or
entrainment including, but not limited to, the following:
(1) The Director may require additional monitoring if there are
changes in operating conditions at the facility or in the source
waterbody that warrant a re-examination of the operational conditions
identified at 40 CFR 122.21(r).
(2) The Director may require additional monitoring for species not
subject to the BTA requirements for impingement mortality at Sec.
125.95(c). Such monitoring requirements will be determined by the
Director on a site-specific basis.
(d) Monitoring requirements for new units at existing facilities.
Monitoring is required to demonstrate compliance with the requirements
of Sec. 125.94(e).
(1) The Director may establish monitoring requirements for
impingement, impingement mortality, and entrainment of the commercial,
recreational, and forage base fish and shellfish species identified in
the Source Water Baseline Biological Characterization data required by
40 CFR 122.21(r)(4). Monitoring methods used must be consistent with
those used for the Source Water Baseline Biological Characterization at
40 CFR 122.21(r)(4). If the Director establishes such monitoring
requirements, the frequency of monitoring and specific protocols will
be determined by the Director.
(2) If your facility is subject to the requirements of Sec.
125.94(e)(1) or (2), the frequency of flow monitoring and velocity
monitoring must be daily and must be representative of normal operating
conditions. Flow monitoring must include measuring cooling water
withdrawals, make-up water, and blowdown volume. The Director may
require additional monitoring necessary to demonstrate compliance with
Sec. 125.94(e).
(3) If your facility is subject to the requirements of Sec.
125.94(e)(2), you must monitor to demonstrate achievement of reductions
commensurate with a closed-cycle recirculating system. You must monitor
entrainable organisms at a proximity to the intake that is
representative of the entrainable organisms in the absence of the
intake structure. You must also monitor the latent entrainment
mortality in front of the intake structure. Mortality after passing the
cooling water intake structure must be counted as 100 percent mortality
unless you have demonstrated to the approval of the Director that the
mortality for each species is less than 100 percent. Monitoring must be
representative of the cooling water intake when the structure is in
operation. In addition, sufficient samples must be collected to allow
for calculation of annual average entrainment levels of all life stages
of fish and shellfish. Specific monitoring protocols and frequency of
monitoring will be determined by the Director. You must follow the
monitoring frequencies identified by the Director for at least two
years after the initial permit issuance. After that time, the Director
may approve a request for less frequent monitoring in the remaining
years of the permit term and when a subsequent permit is reissued. The
monitoring must measure the total count of entrainable organisms or
density of organisms, unless the Director approves of a different
metric for such measurements. In addition, you must monitor the AIF for
each intake. The AIF must be measured at the same time as the samples
of entrainable organisms are collected. The Director may require
additional monitoring necessary to demonstrate compliance with Sec.
125.94(e).
(4) The Director may require additional monitoring for impingement
or entrainment at the cooling water intake structure used by a new unit
including, but not limited to, the following:
(i) The Director may require additional monitoring if there are
changes in operating conditions at the facility or in the source
waterbody that warrant a re-examination of the operational conditions
identified at 40 CFR 122.21(r).
(ii) The Director may require additional monitoring for species not
subject to the BTA requirements for impingement mortality at Sec.
125.95(c). Such monitoring requirements will be determined by the
Director on a site-specific basis.
(e) Visual or remote inspections. You must either conduct visual
inspections or employ remote monitoring devices during the period the
cooling water intake structure is in operation. You must conduct such
inspections at least weekly to ensure that any technologies operated to
comply with Sec. 125.94 are maintained and operated to function as
designed including those installed to protect Federally-listed
threatened or endangered species or designated critical habitat. The
Director may establish alternative procedures if this requirement is
not feasible (e.g., an offshore intake, velocity cap, or during periods
of inclement weather).
(f) Request for reduced monitoring. For facilities that are subject
to Sec. 125.94(c)(7) and where the facility's cooling water intake
structure does not directly or indirectly affect Federally-listed
threatened and endangered species, or designated critical habitat, the
owner or operator of the facility may request the Director to reduce
monitoring requirements after the first full permit term in which these
monitoring requirements are implemented, on the condition that the
results of the monitoring to date demonstrate that the owner or
operator of the facility has consistently operated the intake as
designed and is meeting the requirements of Sec. 125.94(c).
(g) Additional monitoring related to Federally-listed threatened
and endangered species and designated critical habitat at existing
facilities. Where the Director requires additional measures to protect
Federally-listed threatened or endangered species or designated
critical habitat pursuant to Sec. 125.94(g), the Director shall
require monitoring associated with those measures.
Sec. 125.97 Other permit reporting and recordkeeping requirements.
The owner or operator of an existing facility subject to this
subpart is required to submit to the Director the following
information:
(a) Monitoring reports. Discharge Monitoring Reports (DMRs) (or
equivalent State reports) and results of all monitoring,
demonstrations, and
[[Page 48437]]
other information required by the permit sufficient to determine
compliance with the permit conditions and requirements established
under Sec. 125.94.
(b) Status reports. Any reports required by the Director under
Sec. 125.94.
(c) Annual certification statement and report. An annual
certification statement signed by the responsible corporate officer as
defined in Sec. 122.22 of this chapter subject to the following:
(1) If the information contained in the previous year's annual
certification is still pertinent, you may simply state as such in a
letter to the Director and the letter, along with any applicable data
submission requirements specified in this section shall constitute the
annual certification.
(2) If you have substantially modified operation of any unit at
your facility that impacts cooling water withdrawals or operation of
your cooling water intake structures, you must provide a summary of
those changes in the report. In addition, you must submit revisions to
the information required at Sec. 122.21(r) of this chapter in your
next permit application.
(d) Permit reporting records retention. Records of all submissions
that are part of the permit reporting requirements of this section must
be retained until the subsequent permit is issued. In addition, the
Director may require supplemental recordkeeping such as compliance
monitoring under Sec. 125.96, supplemental data collection under 40
CFR 122.21, additional monitoring or data collection under Sec.
125.95.
(e) Reporting. The Director has the discretion to require
additional reporting when necessary to establish permit compliance and
may provide for periodic inspection of the facility. The Director may
require additional reporting including but not limited to the records
required under Sec. 125.97(d).
(f) Records of Director's Determination of BTA for Entrainment. All
records supporting the Director's Determination of BTA for Entrainment
under Sec. 125.98(f) or (g) must be retained until such time as the
Director revises the Determination of BTA for Entrainment in the
permit.
(g) Additional reporting requirements related to Federally-listed
threatened and endangered species or designated critical habitat. Where
the Director requires additional measures to protect Federally-listed
threatened or endangered species or critical habitat pursuant to Sec.
125.94(g), the Director shall require reporting associated with those
measures.
Sec. 125.98 Director requirements.
(a) Permit application. The Director must review the materials
submitted by the applicant under 40 CFR 122.21(r) for completeness
pursuant to 40 CFR 122.21(e) at the time of initial permit application
and any application for a subsequent permit.
(b) Permitting requirements. Section 316(b) requirements are
implemented through an NPDES permit. Based on the information submitted
in the permit application, the Director must determine the requirements
and conditions to include in the permit.
(1) Such permits, including permits with alternative requirements
under paragraph (b)(7) of this section, must include the following
language as a permit condition: ``Nothing in this permit authorizes
take for the purposes of a facility's compliance with the Endangered
Species Act.''
(2) In the case of any permit issued after July 14, 2018, at a
minimum, the permit must include conditions to implement and ensure
compliance with the impingement mortality standard at Sec. 125.94(c)
and the entrainment standard at Sec. 125.94(d), including any measures
to protect Federally-listed threatened and endangered species and
designated critical habitat required by the Director. In addition, the
permit must include conditions, management practices and operational
measures necessary to ensure proper operation of any technology used to
comply with the impingement mortality standard at Sec. 125.94(c) and
the entrainment standard at Sec. 125.94(d). Pursuant to Sec.
125.94(g), the permit may include additional control measures,
monitoring requirements, and reporting requirements that are designed
to minimize incidental take, reduce or remove more than minor
detrimental effects to Federally-listed species and designated critical
habitat, or avoid jeopardizing Federally-listed species or destroying
or adversely modifying designated critical habitat (e.g. prey base).
Such control measures, monitoring requirements, and reporting
requirements may include measures or requirements identified by the
U.S. Fish and Wildlife Service and/or the National Marine Fisheries
Service during the 60 day review period pursuant to Sec. 125.98(h) or
the public notice and comment period pursuant to 40 CFR 124.10. The
Director may include additional permit requirements if:
(i) Based on information submitted to the Director by any fishery
management agency or other relevant information, there are migratory or
sport or commercial species subject to entrainment that may be directly
or indirectly affected by the cooling water intake structure; or
(ii) It is determined by the Director, based on information
submitted by any fishery management agencies or other relevant
information, that operation of the facility, after meeting the
entrainment standard of this section, would still result in undesirable
cumulative stressors to Federally-listed and proposed, threatened and
endangered species, and designated and proposed critical habitat.
(3) At a minimum, the permit must require the permittee to monitor
as required at Sec. Sec. 125.94 and 125.96.
(4) At a minimum, the permit must require the permittee to report
and keep the records specified at Sec. 125.97.
(5) After October 14, 2014, in the case of any permit issued before
July 14, 2018 for which the Director, pursuant to Sec. 125.95(a)(2),
has established an alternate schedule for submission of the information
required by 40 CFR 122.21(r), the Director may include permit
conditions to ensure that, for any subsequent permit, the Director will
have all the information required by 40 CFR 122.21(r) necessary to
establish impingement mortality and entrainment BTA requirements under
Sec. 125.94(c) and (d). In addition, the Director must establish
interim BTA requirements in the permit based on the Director's best
professional judgment on a site-specific basis in accordance with Sec.
125.90(b) and 40 CFR 401.14.
(6) In the case of any permit issued after October 14, 2014, and
applied for before October 14, 2014, the Director may include permit
conditions to ensure that the Director will have all the information
under 40 CFR 122.21(r) necessary to establish impingement mortality and
entrainment BTA requirements under Sec. 125.94(c) and (d) for the
subsequent permit. The Director must establish interim BTA requirements
in the permit on a site-specific basis based on the Director's best
professional judgment in accordance with Sec. 125.90(b) and 40 CFR
401.14.
(7) For new units at existing facilities, the Director may
establish alternative requirements if the data specific to the facility
indicate that compliance with the requirements of Sec. 125.94(e)(1) or
(2) for each new unit would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirements
at issue, or would result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other
than impingement
[[Page 48438]]
or entrainment, or significant adverse impacts on local energy markets:
(i) The alternative requirements must achieve a level of
performance as close as practicable to the requirements of Sec.
125.94(e)(1);
(ii) The alternative requirements must ensure compliance with these
regulations, other provisions of the Clean Water Act, and State and
Tribal law;
(iii) The burden is on the owner or operator of the facility
requesting the alternative requirement to demonstrate that alternative
requirements should be authorized for the new unit.
(8) The Director may require additional measures such as seasonal
deployment of barrier nets, to protect shellfish.
(c) Compliance schedule. When the Director establishes a schedule
of requirements under Sec. 125.94(b), the schedule must provide for
compliance with Sec. 125.94(c) and (d) as soon as practicable. When
establishing a schedule for electric power generating facilities, the
Director should consider measures to maintain adequate energy
reliability and necessary grid reserve capacity during any facility
outage. These may include establishing a staggered schedule for
multiple facilities serving the same localities. The Director may
confer with independent system operators and state public utility
regulatory agencies when establishing a schedule for electric power
generating facilities. The Director may determine that extenuating
circumstances (e.g., lengthy scheduled outages, future production
schedules) warrant establishing a different compliance date for any
manufacturing facility.
(d) Supplemental Technologies and Monitoring. The Director may
require additional technologies for protection of fragile species, and
may require additional monitoring of species of fish and shellfish not
already required under Sec. 125.95(c). The Director may consider data
submitted by other interested parties. The Director may also require
additional study and monitoring if a threatened or endangered species
has been identified in the vicinity of the intake.
(e) Impingement technology performance optimization study. The
owner or operator of a facility that chooses to comply with Sec.
125.94(c)(5) or (6) must demonstrate in its impingement technology
performance optimization study that the operation of its impingement
reduction technology has been optimized to minimize impingement
mortality of non-fragile species. The Director may request further data
collection and information as part of the impingement technology
performance optimization study, including extending the study period
beyond two years. The Director may also consider previously collected
biological data and performance reviews as part of the study. The
Director must include in the permit verifiable and enforceable permit
conditions that ensure the modified traveling screens or other systems
of technologies will perform as demonstrated. The Director may waive
all or part of the impingement technology performance optimization
study at 40 CFR122.21(r)(6) after the first permit cycle wherein the
permittee is deemed in compliance with Sec. 125.94(c).
(f) Site-specific entrainment requirements. The Director must
establish site-specific requirements for entrainment after reviewing
the information submitted under 40 CFR 122.21(r) and Sec. 125.95.
These entrainment requirements must reflect the Director's
determination of the maximum reduction in entrainment warranted after
consideration of factors relevant for determining the best technology
available for minimizing adverse environmental impact at each facility.
These entrainment requirements may also reflect any control measures to
reduce entrainment of Federally-listed threatened and endangered
species and designated critical habitat (e.g. prey base). The Director
may reject an otherwise available technology as a basis for entrainment
requirements if the Director determines there are unacceptable adverse
impacts including impingement, entrainment, or other adverse effects to
Federally-listed threatened or endangered species or designated
critical habitat. Prior to any permit reissuance after July 14, 2018,
the Director must review the performance of the facility's installed
entrainment technology to determine whether it continues to meet the
requirements of Sec. 125.94(d).
(1) The Director must provide a written explanation of the proposed
entrainment determination in the fact sheet or statement of basis for
the proposed permit under 40 CFR 124.7 or 124.8. The written
explanation must describe why the Director has rejected any entrainment
control technologies or measures that perform better than the selected
technologies or measures, and must reflect consideration of all
reasonable attempts to mitigate any adverse impacts of otherwise
available better performing entrainment technologies.
(2) The proposed determination in the fact sheet or statement of
basis must be based on consideration of any additional information
required by the Director at Sec. 125.98(i) and the following factors
listed below. The weight given to each factor is within the Director's
discretion based upon the circumstances of each facility.
(i) Numbers and types of organisms entrained, including,
specifically, the numbers and species (or lowest taxonomic
classification possible) of Federally-listed, threatened and endangered
species, and designated critical habitat (e.g., prey base);
(ii) Impact of changes in particulate emissions or other pollutants
associated with entrainment technologies;
(iii) Land availability inasmuch as it relates to the feasibility
of entrainment technology;
(iv) Remaining useful plant life; and
(v) Quantified and qualitative social benefits and costs of
available entrainment technologies when such information on both
benefits and costs is of sufficient rigor to make a decision.
(3) The proposed determination in the fact sheet or statement of
basis may be based on consideration of the following factors to the
extent the applicant submitted information under 40 CFR 122.21(r) on
these factors:
(i) Entrainment impacts on the waterbody;
(ii) Thermal discharge impacts;
(iii) Credit for reductions in flow associated with the retirement
of units occurring within the ten years preceding October 14, 2014;
(iv) Impacts on the reliability of energy delivery within the
immediate area;
(v) Impacts on water consumption; and
(vi) Availability of process water, gray water, waste water,
reclaimed water, or other waters of appropriate quantity and quality
for reuse as cooling water.
(4) If all technologies considered have social costs not justified
by the social benefits, or have unacceptable adverse impacts that
cannot be mitigated, the Director may determine that no additional
control requirements are necessary beyond what the facility is already
doing. The Director may reject an otherwise available technology as a
BTA standard for entrainment if the social costs are not justified by
the social benefits.
(g) Ongoing permitting proceedings. In the case of permit
proceedings begun prior to October 14, 2014 whenever the Director has
determined that the information already submitted by the owner or
operator of the facility is sufficient, the Director may proceed with a
determination of BTA standards for impingement mortality and
[[Page 48439]]
entrainment without requiring the owner or operator of the facility to
submit the information required in 40 CFR 122.21(r). The Director's BTA
determination may be based on some or all of the factors in paragraphs
(f)(2) and (3) of this section and the BTA standards for impingement
mortality at Sec. 125.95(c). In making the decision on whether to
require additional information from the applicant, and what BTA
requirements to include in the applicant's permit for impingement
mortality and site-specific entrainment, the Director should consider
whether any of the information at 40 CFR 122.21(r) is necessary.
(h) The Director must transmit all permit applications for
facilities subject to this subpart to the appropriate Field Office of
the U.S. Fish and Wildlife Service and/or Regional Office of the
National Marine Fisheries Service upon receipt for a 60 day review
prior to public notice of the draft or proposed permit. The Director
shall provide the public notice and an opportunity to comment as
required under 40 CFR 124.10 and must submit a copy of the fact sheet
or statement of basis (for EPA-issued permits), the permit application
(if any) and the draft permit (if any) to the appropriate Field Office
of the. Fish and Wildlife Service and/or Regional Office of the
National Marine Fisheries Service. This includes notice of specific
cooling water intake structure requirements at Sec. 124.10(d)(1)(ix)
of this chapter, notice of the draft permit, and any specific
information the Director has about threatened or endangered species and
critical habitat that are or may be present in the action area,
including any proposed control measures and monitoring and reporting
requirements for such species and habitat.
(i) Additional information. In implementing the Director's
responsibilities under the provisions of this subpart, the Director is
authorized to inspect the facility and to request additional
information needed by the Director for determining permit conditions
and requirements, including any additional information from the
facility recommended by the Services upon review of the permit
application under paragraph (h) of this section.
(j) Nothing in this subpart authorizes the take, as defined at 16
U.S.C. 1532(19), of threatened or endangered species of fish or
wildlife. Such take is prohibited under the Endangered Species Act
unless it is exempted pursuant to 16 U.S.C. 1536(o) or permitted
pursuant to 16 U.S.C. 1539(a). Absent such exemption or permit, any
facility operating under the authority of this regulation must not take
threatened or endangered wildlife.
(k) The Director must submit at least annually to the appropriate
EPA Regional Office facilities' annual reports submitted pursuant to
Sec. 125.97(g), for compilation and transmittal to the Services.
Sec. 125.99 [Reserved]
[FR Doc. 2014-12164 Filed 8-14-14; 8:45 am]
BILLING CODE 6560-50-P
