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Authorizing Regulations
66 FR 65256; December 18, 2001
68 FR 36749; June 19, 2003
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Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9, 122, 123, 124, and 125
[FRL–7105–4]
RIN 2040–AC34
National Pollutant Discharge
Elimination System: Regulations
Addressing Cooling Water Intake
Structures for New Facilities
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Today’s final rule implements
section 316(b) of the Clean Water Act
(CWA) for new facilities that use water
withdrawn from rivers, streams, lakes,
reservoirs, estuaries, oceans or other
waters of the United States (U.S.) for
cooling purposes. The final rule
establishes national technology-based
performance requirements applicable to
the location, design, construction, and
capacity of cooling water intake
structures at new facilities. The national
requirements establish the best
technology available, based on a twotrack approach, for minimizing adverse
environmental impact associated with
the use of these structures.
Based on size, Track I establishes
national intake capacity and velocity
requirements as well as location- and
capacity-based requirements to reduce
intake flow below certain proportions of
certain waterbodies (referred to as
‘‘proportional-flow requirements’’). It
also requires the permit applicant to
select and implement design and
construction technologies under certain
conditions to minimize impingement
mortality and entrainment. Track II
allows permit applicants to conduct
site-specific studies to demonstrate to
the Director that alternatives to the
Track I requirements will reduce
impingement mortality and entrainment
for all life stages of fish and shellfish to
a level of reduction comparable to the
level the facility would achieve at the
cooling water intake structure if it met
the Track I requirements.
EPA expects that this final regulation
will reduce impingement and
entrainment at new facilities. Today’s
final rule establishes requirements that
will help preserve aquatic organisms
and the ecosystems they inhabit in
waters used by cooling water intake
structures at new facilities. EPA has
considered the potential benefits of the
rule; these include a decrease in
expected mortality or injury to aquatic
organisms that would otherwise be
subject to entrainment into cooling
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water systems or impingement against
screens or other devices at the entrance
of cooling water intake structures.
Benefits may also accrue at population,
community, or ecosystem levels of
ecological structures. The preamble
discusses these benefits to the extent
possible in qualitative terms.
DATES: This regulation shall become
effective January 17, 2002. For judicial
review purposes, this final rule is
promulgated as of 1:00 p.m. Eastern
Standard Time (EST) on January 2,
2002, as provided in 40 CFR 23.2.
ADDRESSES: The public record for this
rule is established under docket number
W–00–03. Copies of comments received,
EPA responses, and all other supporting
documents (except for information
claimed as Confidential Business
Information (CBI)) are available for
review in the EPA Water Docket, East
Tower Basement, Room EB–57, 401 M
Street, SW., Washington, DC 20460. The
record is available for inspection from
9:00 a.m. to 4:00 p.m. Monday through
Friday, excluding legal holidays. For
access to the docket materials, please
call (202) 260–3027 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT: For
additional technical information contact
Deborah G. Nagle at (202) 260–2656. For
additional biological information
contact Debbi Hart at (202) 260–0905.
For additional economic information
contact Ghulam Ali at (202) 260–9886.
The e-mail address for the above
contacts is rule.316b@epa.gov.
SUPPLEMENTARY INFORMATION:
What Entities Are Regulated by This
Action?
This final rule applies to new
greenfield (defined by example in
section I. of this preamble) and stand
alone facilities that use cooling water
intake structures to withdraw water
from waters of the U.S. and that have or
require a National Pollutant Discharge
Elimination System (NPDES) permit
issued under section 402 of the CWA.
New facilities subject to this regulation
include those that have a design intake
flow of greater than two (2) million
gallons per day (MGD) and that use at
least twenty-five (25) percent of water
withdrawn for cooling purposes.
Generally, facilities that meet these
criteria fall into two major groups: new
steam electric generating facilities and
new manufacturing facilities. If a new
facility meets these conditions, it is
subject to today’s final regulations. If a
new facility has or requires an NPDES
permit but does not meet the two MGD
intake flow threshold or uses less than
25 percent of its water for cooling water
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purposes, the permit authority will
implement section 316(b) on a case-bycase basis, using best professional
judgment. This final rule defines the
term ‘‘cooling water intake structure’’ to
mean the total physical structure and
any associated constructed waterways
used to withdraw water from a water of
the U.S. The cooling water intake
structure extends from the point at
which water is withdrawn from the
surface water source up to and
including the intake pumps. Today’s
rule does not apply to existing facilities
including major modifications to
existing facilities that would be ‘‘new
sources’’ in 40 CFR 122.29 as that term
is used in the effluent guidelines and
standards program. Although EPA has
not finished examining the costs of
technology options at existing facilities,
the Agency anticipates that existing
facilities would have less flexibility in
designing and locating their cooling
water intake structures than new
facilities and that existing facilities
might incur higher compliance costs
than new facilities. For example,
existing facilities might need to upgrade
or modify existing intake structures and
cooling water systems to meet
requirements of the type contained in
today’s rule, which might impose
greater costs than use of the same
technologies at a new facility.
Retrofitting technologies at an existing
facility might also require shutdown
periods during which the facility would
lose both production and revenues, and
certain retrofits could decrease the
thermal efficiency of an electric
generating facility. Site limitations, such
as lack of undeveloped space, might
make certain technologies infeasible at
existing facilities. Accordingly, EPA
does not intend that today’s rule or
preamble serve as guidance for
developing section 316(b) requirements
for existing facilities. Permit writers
should continue to apply best
professional judgment in making caseby-case section 316(b) determinations
for existing facilities, based on existing
guidance and other legal authorities.
EPA will address existing facilities fully
in Phase II and Phase III rulemakings.
The following table lists the types of
entities that EPA believes are potentially
subject to this final rule. This table is
not intended to be exhaustive; rather, it
provides a guide for readers regarding
entities likely to be regulated by this
action. Other types of entities not listed
in the table could also be regulated. To
determine whether your facility is
regulated by this action, you should
carefully examine the applicability
criteria at § 125.81 of the rule. If you
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have questions regarding the
applicability of this action to a
particular entity, consult one of the
Industry ............................
persons listed in the preceding FOR
section.
FURTHER INFORMATION CONTACT
Examples of regulated entities
Standard Industrial Classification
(SIC) Codes
North American Industry Classification System (NAICS) Codes
Operators of steam electric generating point source dischargers that
employ cooling water intake structures.
Operators of industrial point source
dischargers that employ cooling
water intake structures.
Steam electric generating .................
4911 and 493 ....................................
221111, 221112, 221113, 221119,
221121, 221122, 221111, 221112,
221113, 221119, 221121, 221122.
See below ..........................................
See below.
4911 and 493 ....................................
Agricultural production .......................
Metal mining ......................................
Oil and gas extraction (excluding offshore and coastal subcategories).
Mining and quarrying of nonmetallic
minerals.
Food and kindred products ...............
0133 ...................................................
1011 ...................................................
1311, 1321 ........................................
221111, 221112, 221113, 221119,
221121, 221122, 221111, 221112,
221113, 221119, 221121, 221122.
111991, 11193.
21221.
211111, 211112.
1474 ...................................................
212391.
2046, 2061, 2062, 2063, 2075, 2085
Tobacco products ..............................
Textile mill products ..........................
Lumber and wood products, except
furniture.
Paper and allied products .................
2141 ...................................................
2211, 2261 ........................................
2415, 2421, 2436, 2493 ....................
Chemical and allied products ............
28 (except 2822, 2835, 2836, 2842,
2843, 2844, 2861, 2895, 2893,
2851, and 2879).
2911, 2999 ........................................
311221, 311311, 311312, 311313,
311222, 311225, 31214.
312229, 31221.
31321.
321912, 321113, 321918, 321999,
321212, 321219.
3221, 322121, 32213, 322121,
322122, 32213, 322291.
325 (except 325182, 32591, 32551,
32532).
Category
Federal, State and Local
Government.
Petroleum refining and related industries.
Rubber and miscellaneous plastics
products.
Stone, clay, glass, and concrete
products.
Primary metal industries ....................
2611, 2621, 2631, 2676, 2679 ..........
326211, 31332, 326192, 326299.
3241 ...................................................
32731.
3312, 3313, 3315, 3316, 3317, 3334,
3339, 3353, 3357.
324199, 331111, 331112, 331492,
331222, 332618, 331221, 22121,
331312, 331419, 331315, 331521,
331524, 331525.
332211, 337215, 332117, 332439,
33251, 332919, 339914, 332999.
3421, 3499 ........................................
Educational services .........................
Engineering, Accounting, Research,
Management, and Related Services.
8221 ...................................................
8731 ...................................................
The final regulation is supported by
two major documents:
1. Economic Analysis of the Final
Regulations Addressing Cooling Water
Intake Structures for New Facilities
(EPA–821–R–01–035), hereafter referred
to as the Economic Analysis. This
document presents the analysis of
compliance costs, barrier to entry, and
energy supply effects. In addition, the
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3523, 3531 ........................................
3724, 3743, 3764 ..............................
3861 ...................................................
4911, 4931, 4939, 4961 ....................
document provides an assessment of
potential benefits.
2. Technical Development Document
for the Final Regulations Addressing
Cooling Water Intake Structures for New
Facilities (EPA–821–R–01–036),
hereafter referred to as the Technical
Development Document. This document
presents detailed information on the
methods used to develop unit costs and
describes the set of technologies that
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32411, 324199.
3011, 3069 ........................................
Fabricated metal products, except
machinery
and
transportation
equipment.
Industrial and commercial machinery
and computer equipment.
Transportation equipment .................
Measuring, analyzing, and controlling
instruments; photographic, medical, and optical goods; watches
and clocks.
Electric, gas, and sanitary services ..
Supporting Documentation
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333111, 332323, 332212, 333922,
22651, 333923, 33312.
336412, 333911, 33651, 336416.
333315, 325992.
221111, 221112, 221113, 221119,
221121, 221122, 22121, 22133.
61131.
54171.
may be used to meet the rule’s
requirements.
How To Obtain Supporting Documents
You can obtain the Economic
Analysis and Technical Development
Document from the Agency’s 316(b)
website (http://www.epa.gov/ost/316b).
The documents are also available from
the National Service Center for
Environmental Publications, P.O. Box
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42419, Cincinnati, OH 45242–2419;
telephone (800) 490–9198 and the Water
Resource Center , U.S. EPA, 1200
Pennsylvania Avenue, N.W. (RC 4100),
Washington D.C. 20460 (202) 260–2814.
Organization of This Document
I. Scope of This Rulemaking
A. What Is a New Facility?
B. What Is a Cooling Water Intake
Structure?
C. What Cooling Water Use and Design
Intake Flow Thresholds Result in a New
Facility Being Subject to This Final
Rule?
D. Does This Rule Apply to My Facility If
It Does Not Have a Point Source
Discharge Subject to an NPDES Permit?
E. What Requirements Must I Meet Under
the Final Rule?
II. Legal Authority, Purpose and Background
of Today’s Regulation
A. Legal Authority
B. Purpose of Today’s Regulation
C. Background
III. Environmental Impact Associated With
Cooling Water Intake Structures
IV. Summary of the Most Significant
Revisions to the Proposed Rule
A. Data Updates
B. Regulatory Approach
V. Basis for the Final Regulation
A. Major Options Considered for the Final
Rule
B. Why EPA Is Establishing EPA’s
Preferred Two-Track Option as the Best
Technology Available for Minimizing
Adverse Environmental Impact?
C. Why EPA Is Not Adopting Dry Cooling
as the Best Technology Available for
Minimizing Adverse Environmental
Impact?
D. Why EPA Is Not Accepting the Industry
Two-Track Approach in Full
VI. Summary of Major Comments on the
Proposed Rule and Notice of Data
Availability (NODA)
A. Scope/Applicability
B. Environmental Impact Associated With
Cooling Water Intake Structures
C. Location
D. Flow and Volume
E. Velocity
F. Dry Cooling
G. Implementation-Baseline Biological
Characterization
H. Cost
I. Benefits
J. Engineering and Economic Analysis
Limitations
K. EPA Authority
L. Restoration
VII. Implementation
A. When Does the Rule Become Effective?
B. What Information Must I Submit to the
Director When I Apply for My New or
Reissued NPDES Permit?
C. How Will the Director Determine the
Appropriate Cooling Water Intake
Structure Requirements?
D. What Will I Be Required to Monitor?
E. How Will Compliance Be Determined?
F. What Are the Respective Federal, State,
and Tribal Roles?
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G. Are Permits for New Facilities Subject
to Requirements Under Other Federal
Statutes?
H. Alternative Requirements
VIII. Economic Analysis
A. Electric Generation Sector
B. Manufacturing Sector
C. Economic Impacts
D. Cost and Economic Impacts of Other
Alternatives
IX. Potential Benefits Associated With
Reducing Impingement and Entrainment
X. Regulatory Requirements
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Unfunded Mandates Reform Act
D. Regulatory Flexibility Act (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
E. Executive Order 13132: Federalism
F. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
I. Executive Order 13158: Marine Protected
Areas
J. Executive Order 13211 (Energy Effects)
K. National Technology Transfer and
Advancement Act
L. Plain Language Directive
M. Congressional Review Act
I. Scope of This Rulemaking
Today’s final rule establishes
technology-based performance
requirements applicable to the location,
design, construction, and capacity of
cooling water intake structures at new
facilities under section 316(b) of the
Clean Water Act. The rule establishes
the best technology available for
minimizing adverse environmental
impact associated with the use of these
structures. Today’s final rule also
partially fulfills EPA’s obligation to
comply with a consent decree entered in
the United States District Court,
Southern District of New York in
Riverkeeper Inc., et al. v. Whitman, No.
93 Civ. 0314 (AGS). (For a more detailed
discussion of the consent decree, see
II.C.2).
This final rule applies to new
greenfield or stand alone facilities: (1)
that use a newly constructed cooling
water intake structure, or a modified
existing cooling water intake structure
whose design capacity is increased that
withdraws water from waters of the
U.S.; and (2) that has or is required to
have a National Pollutant Discharge
Elimination System (NPDES) permit
issued under section 402 of the CWA.
Specifically, the rule applies to you if
you are the owner or operator of a
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facility that meets all of the following
criteria:
• Your greenfield or stand alone
facility meets the definition of new
facility specified in § 125.83 of this rule;
• Your new facility uses a newly
constructed or modified existing cooling
water intake structure or structures, or
your facility obtains cooling water by
any sort of contract or arrangement with
an independent supplier who has a
cooling water intake structure;
• Your new facility’s cooling water
intake structure(s) withdraw(s) water
from waters of the U.S. and at least
twenty-five (25) percent of the water
withdrawn is used for contact or
noncontact cooling purposes;
• Your new facility has a design
intake flow of greater than two (2)
million gallons per day (MGD); and
• Your new facility has an NPDES
permit or is required to obtain one.
If a new facility meets these
conditions, it is subject to today’s final
regulations. If a new facility has or
requires an NPDES permit but does not
meet the two MGD intake flow
threshold or the twenty-five percent
cooling water use threshold, it is not
subject to permit conditions based on
today’s rule; rather, it is subject to
permit conditions implementing section
316(b) of the CWA set by the permit
director on a case-by-case basis, using
best professional judgment.
A. What Is a New Facility?
A new facility subject to this
regulation is any facility that meets the
definition of ‘‘new source’’ or ‘‘new
discharger’’ in 40 CFR 122.2 and
122.29(b)(1), (2), and (4); commences
construction after January 17, 2002; and
uses either a newly constructed cooling
water intake structure, or an existing
cooling water intake structure whose
design capacity is increased; or obtains
cooling water by any sort of contract or
arrangement with an independent
supplier who has a cooling water intake
structure. The term ‘‘commence
construction’’ is defined in 40 CFR
122.29(b)(4).
As stated above, this rule applies to
only ‘‘greenfield’’ and ‘‘stand-alone’’
facilities. A greenfield facility is a
facility that is constructed at a site at
which no other source is located, or that
totally replaces the process or
production equipment at an existing
facility (see 40 CFR 122.29(b)(1)(i) and
(ii)). A stand-alone facility is a new,
separate facility that is constructed on
property where an existing facility is
located and whose processes are
substantially independent of the
existing facility at the same site (see 40
CFR 122.29(b)(1)(iii)). An example of
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total replacement is as follows: The
power plant or manufacturer
demolishes the power plant or
manufacturing facility and builds a new
plant or facility in its place. The pumps
of the existing cooling water intake
structure are replaced with new pumps
that increase design capacity to
accommodate additional cooling water
needs, but the intake pipe is left in
place. In this situation, the facility
would be a new facility. Modifications
to an existing cooling water intake
structure that do not serve the cooling
water needs of a greenfield or standalone facility in 40 CFR 122.2 and
122.29(b)(1), (2), and (4) (i.e., a facility
that meets the definition of new source
or new discharger and commences
construction after the effective date of
the rule) do not constitute a new facility
subject to this rule. Thus, the definition
of new facility under this rule is
narrower than the definition of new
source under section 306 of the CWA.
The definition of new facility also
requires that the greenfield or standalone facility use ‘‘a newly constructed
cooling water intake structure or an
existing cooling water intake structure
whose design capacity is increased to
accommodate the intake of additional
cooling water.’’ This means a facility
that would otherwise be a ‘‘new
facility’’ would not be treated as a new
facility under this rule if it withdraws
water from an existing cooling water
intake structure whose design capacity
has not been increased to accommodate
the intake of additional cooling water.
Routine maintenance and repair, such
as replacement of pumps that does not
increase the capacity of the structure,
cleaning in response to biofouling, and
repair or replacement of moving parts at
a cooling water intake that is part of a
greenfield or stand-alone facility, and
that occur simply for operation and
maintenance purposes, would not be a
modification of that intake structure.
One way to distinguish whether
replacement of the pipes or the pumps
is for maintenance and repair purposes
or whether it is to accommodate
construction of a new facility is to
determine whether the replacement
increases the original design capacity.
Today’s rule specifies that changes to a
cooling water intake structure are
considered modifications for purposes
of this rule only if such changes result
in an increase in design capacity. Thus,
routine maintenance or repair of the
cooling water intake structure,
including the pumps, that does not
result in an increase in design capacity
does not modify a cooling water intake
structure. However, if a change is made
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to the cooling water intake structure,
including the pumps, that increases
design capacity to any extent, then the
cooling water intake structure has been
modified; use of this structure by a
greenfield or stand-alone facility would
make the facility a new facility subject
to this rule.
B. What Is a Cooling Water Intake
Structure?
For the purposes of this rule a
‘‘cooling water intake structure’’ is
defined as the total physical structure
and any associated constructed
waterways used to withdraw water from
waters of the U.S. The cooling water
intake structure extends from the point
at which water is withdrawn from
waters of the U.S. up to and including
the intake pumps. EPA has defined
‘‘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
Agency has specified that the intended
use of cooling water is to absorb waste
heat from production processes or
auxiliary operations. In addition, for the
final rule EPA has amended the
definition of cooling water to ensure
that the rule does not discourage the
reuse of cooling water as process water.
As such, heated cooling water that is
subsequently used in a manufacturing
process is considered process water for
the purposes of calculating the
percentage of a new facility’s intake
flow that is used for cooling purposes.
C. What Cooling Water Use and Design
Intake Flow Thresholds Result in a New
Facility Being Subject to This Final
Rule?
This rule applies to new facilities that
(1) withdraw cooling water from waters
of the U.S. and use at least twenty-five
(25) percent of the water withdrawn for
cooling purposes and (2) have a cooling
water intake structure with a design
intake capacity of greater than or equal
to two (2) million gallons per day (MGD)
of source water. See 40 CFR 125.81 of
this rule. The percentage of total water
withdrawn that is used for cooling
purposes is to be measured on an
average monthly basis over a period of
one year. See 40 CFR 125.81(c) of this
rule. A new facility meets the 25 percent
cooling water use threshold if, on the
basis of the new facility’s design when
measured over a period of one year, any
monthly average percentage of cooling
water withdrawn is expected to equal or
exceed 25 percent of the total water
withdrawn. Waters of the U.S. include
the broad range of surface waters that
meet the regulatory definition at 40 CFR
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65259
122.2, which can include lakes, ponds,
reservoirs, nontidal rivers or streams,
tidal rivers, estuaries, fjords, oceans,
bays, and coves.
Some commenters questioned
whether the discussion of cooling ponds
in the preamble to the proposal (65 FR
49067, col. 2) meant that EPA considers
cooling ponds to be ‘‘waters of the
United States.’’ EPA did not intend that
discussion to change the regulatory
status of cooling ponds. Cooling ponds
are neither categorically included nor
categorically excluded from the
definition of ‘‘waters of the United
States’’ at 40 CFR 122.2. EPA interprets
40 CFR 122.2 to give permit writers
discretion to regulate cooling ponds as
‘‘waters of the United States’’ where
cooling ponds meet the definition of
‘‘waters of the United States.’’ The
determination whether a particular
cooling pond is or is not ‘‘waters of the
United States’’ is to be made by the
permit writer on a case-by-case basis,
informed by the principles enunciated
in Solid Waste Agency of Northern Cook
County v. US Army Corps of Engineers,
531 U.S. 159 (2001).
D. Does This Rule Apply to My Facility
If It Does Not Have a Point Source
Discharge Subject to an NPDES Permit?
Today’s final rule applies only to new
facilities as defined in § 125.83 that
have an NPDES permit or are required
to obtain one because they discharge or
might discharge pollutants, including
storm water, from a point source to
waters of the United States.
Requirements for minimizing the
adverse environmental impact of
cooling water intake structures will
continue to be applied through NPDES
permits.
E. What Requirements Must I Meet
Under the Final Rule?
Today’s final rule establishes a twotrack approach for regulating cooling
water intake structures at new facilities.
Track I establishes uniform
requirements based on facility cooling
water intake capacity. Track II provides
dischargers with the opportunity to
establish that alternative requirements
will achieve comparable performance.
The regulated entity has the opportunity
to choose which track it will follow. The
Track I and Track II requirements are
summarized below.
Under Track I, new facilities with a
design intake flow equal to or greater
than 10 MGD, must meet the following
requirements:
(1) Cooling water intake flow must be
at a level commensurate with that
achievable with a closed-cycle,
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recirculating cooling system; (40 CFR
125.84(b)(1))
(2) Through-screen intake velocity
must be less than or equal to 0.5 feet per
second; (40 CFR 125.84(b)(2))
(3) Location- and capacity-based
limits on proportional intake flow must
be met (for fresh water rivers or streams,
intake flow must be less than or equal
to 5 percent of the mean annual flow;
for lakes or reservoirs, intake flow may
not disrupt natural thermal stratification
or turnover pattern (where present) of
the source water except in cases where
the disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies); for
estuaries or tidal rivers, intake flow
must be less than or equal to 1 percent
of the tidal excursion volume; for
oceans, there are no proportional flow
requirements); (40 CFR 125.84(b)(3))
and
(4) Design and construction
technologies for minimizing
impingement mortality and entrainment
must be selected and implemented if
certain conditions exist where the
cooling water intake structure is located.
(40 CFR 125.84(b)(4) and (5))
Under Track I, new facilities with a
design intake flow equal to or greater
than 2 MGD, but less than 10 MGD,
must meet the following requirements:
(1) Through-screen intake velocity
must be less than or equal to 0.5 feet per
second; (40 CFR 125.84(c)(1))
(2) Location- and capacity-based
limits on proportional intake flow must
be met (for fresh water rivers or streams,
intake flow must be less than or equal
to 5 percent of the mean annual flow;
for lakes or reservoirs, intake flow may
not disrupt natural thermal stratification
or turnover pattern (where present) of
the source water except in cases where
the disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies); for
estuaries or tidal rivers, intake flow
must be less than or equal to 1 percent
of the tidal excursion volume; for
oceans, there are no proportional flow
requirements); (40 CFR 125.84(c)(2)) and
(3) Design and construction
technologies for minimizing
impingement mortality must be selected
if certain conditions exist where the
cooling water intake structure is located
125.84(c)(3); and design and
construction technologies for
minimizing entrainment must be
selected and implemented. (40 CFR
125.84(c)(4))
Under Track II, new facilities must
meet the following requirements:
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(1) Employ technologies that will
reduce the level of adverse
environmental impact to a comparable
level to that which would be achieved
under the Track I requirements (as
demonstrated in a Comprehensive
Demonstration Study); (40 CFR
125.84(d)(1))
(2) The same proportional intake flow
limitations as in Track I, based on the
intake source water, must be met; (40
CFR 125.84(d)(2)).
Section IV.B and V. of this preamble
provides a more detailed discussion of
the requirements included under this
two-track approach. The two-track
approach provides new facilities with a
well-defined set of requirements that
constitute best technology available
(BTA) for minimizing adverse
environmental impact and can be
implemented relatively quickly. This
approach also provides flexibility to
operators who believe alternative or
emerging technologies would be just as
effective at reducing impingement and
entrainment.
II. Legal Authority, Purpose and
Background of Today’s Regulation
A. Legal Authority
Today’s final rule is issued under the
authority of sections 101, 301, 304, 306,
308, 316, 401, 402, 501, and 510 of the
Clean Water Act (CWA), 33 U.S.C. 1251,
1311, 1314, 1316, 1318, 1326, 1341,
1342, 1361, and 1370. This rule partially
fulfills the obligations of the U.S.
Environmental Protection Agency (EPA)
under a consent decree in Riverkeeper
Inc., et al. v. Whitman, United States
District Court, Southern District of New
York, No. 93 Civ. 0314 (AGS).
B. Purpose of Today’s Regulation
Section 316(b) of the CWA provides
that any standard established pursuant
to section 301 or 306 of the CWA and
applicable to a point source must
require that the location, design,
construction, and capacity of cooling
water intake structures reflect the best
technology available (BTA) for
minimizing adverse environmental
impact. Today’s final rule defines a
cooling water intake structure as the
total physical structure, including the
pumps, and any associated constructed
waterways used to withdraw water from
waters of the U.S. Cooling water absorbs
waste heat from processes employed or
from auxiliary operations on a facility’s
premises. Single cooling water intake
structures might have multiple intake
bays. Today’s final rule establishes
requirements applicable to the location,
design, construction, and capacity of
cooling water intake structures at new
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facilities that withdraw at least two (2)
million gallons per day (MGD) and use
at least twenty-five (25) percent of the
water they withdraw for cooling
purposes. Today’s final rule establishes
best technology available for
minimizing adverse environmental
impact associated with the intake of
water from waters of the U.S. at these
structures. See part III for further
discussion of the environmental impact
associated with cooling water intake
structures.
C. Background
1. The Clean Water Act
The Federal Water Pollution Control
Act, also known as the Clean Water Act
(CWA), 33 U.S.C. 1251 et seq., seeks to
‘‘restore and maintain the chemical,
physical, and biological integrity of the
nation’s waters.’’ 33 U.S.C. 1251(a). 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 U.S., except as
authorized by the statute; (2) authority
for EPA or authorized States or Tribes
to issue National Pollutant Discharge
Elimination System (NPDES) permits
that regulate the discharge of pollutants;
and (3) requirements for EPA to develop
effluent limitation guidelines and
standards and for States to develop
water quality standards that are the
basis for the limitations required in
NPDES permits.
Today’s final rule implements section
316(b) of the CWA as it applies to ‘‘new
facilities’’ as defined in this rule. 316(b)
addresses the adverse environmental
impact caused by the intake of cooling
water, not discharges into water. Despite
this special focus, the requirements of
section 316(b) are closely linked to
several of the core elements of the
NPDES permit program established
under section 402 of the CWA to control
discharges of pollutants into navigable
waters. For example, section 316(b)
applies to facilities that withdraw water
from the waters of the United States for
cooling through a cooling water intake
structure and are point sources subject
to an NPDES permit. Conditions
implementing section 316(b) are
included in NPDES permits and will
continue to be included in NPDES
permits under this final rule.
Section 301 of the CWA prohibits the
discharge of any pollutant by any
person, except in compliance with
specified statutory requirements. These
requirements include compliance with
technology-based effluent limitation
guidelines and new source performance
standards, water quality standards,
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NPDES permit requirements, and
certain other requirements.
Section 402 of the CWA provides
authority for 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 U.S. Forty-four
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 primarily by requiring
dischargers to meet effluent limitations
and other permit conditions. Effluent
limitations may be based on
promulgated federal effluent limitation
guidelines, new source performance
standards, or the best professional
judgment of the permit writer.
Limitations based on these guidelines,
standards, or best professional judgment
are known as technology-based effluent
limits. Where technology-based effluent
limits are inadequate to ensure
compliance with water quality
standards applicable to the receiving
water, more stringent effluent limits
based on applicable water quality
standards are required. NPDES permits
also routinely include monitoring and
reporting requirements, standard
conditions, and special conditions.
Sections 301, 304, and 306 of the
CWA require that EPA develop
technology-based effluent limitation
guidelines and new source performance
standards that are used as the basis for
technology-based minimum discharge
requirements in wastewater discharge
permits. EPA issues these effluent
limitation guidelines and standards for
categories of industrial dischargers
based on the pollutants of concern
discharged by the industry, the degree
of control that can be attained using
various levels of pollution control
technology, consideration of various
economic tests appropriate to each level
of control, and other factors identified
in sections 304 and 306 of the CWA
(such as non-water quality
environmental impacts including energy
impacts). EPA has promulgated
regulations setting effluent limitation
guidelines and standards under sections
301, 304, and 306 of the CWA for more
than 50 industries. See 40 CFR parts 405
through 471. Among these, EPA has
established effluent limitation
guidelines that apply to most of the
industry categories that use cooling
water intake structures (e.g., steam
electric power generation, iron and steel
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manufacturing, pulp and paper
manufacturing, petroleum refining,
chemical manufacturing).
Section 306 of the CWA requires that
EPA establish discharge standards for
new sources. For purposes of section
306, new sources include any source
that commenced construction after the
promulgation of applicable new source
performance standards, or after proposal
of applicable standards of performance
if the standards are promulgated in
accordance with section 306 within 120
days of proposal. CWA section 306; 40
CFR 122.2. New source performance
standards are similar to the technologybased limitations established for
existing sources, except that new source
performance standards are based on the
best available demonstrated technology
instead of the best available technology
economically achievable. New facilities
have the opportunity to install the best
and most efficient production processes
and wastewater treatment technologies.
Therefore, Congress directed EPA to
consider the best demonstrated process
changes, in-plant controls, and end-ofprocess control and treatment
technologies that reduce pollution to the
maximum extent feasible. In addition,
in establishing new source performance
standards, EPA is required to take into
consideration the cost of achieving the
effluent reduction and any non-water
quality environmental impacts and
energy requirements. As stated above, a
‘‘new source’’ under CWA section 306
applies to a broader set of facilities than
the group of facilities subject to this
rule.
2. Consent Decree
Today’s final rule partially fulfills
EPA’s obligation to comply with an
amended Consent Decree entered in the
United States District Court, Southern
District of New York, in Riverkeeper
Inc., et al. v. Whitman, No. 93 Civ 0314
(AGS), a case brought against EPA by a
coalition of individuals and
environmental groups. The consent
decree as entered on October 10, 1995,
provided that EPA propose regulations
implementing section 316(b) by July 2,
1999, and take final action with respect
to those regulation by August 13, 2001.
Under subsequent orders and an
amended consent decree, EPA has
divided the rulemaking into three
phases and is working under new
deadlines. In addition to taking final
action on this rule governing new
facilities by November 9, 2001, EPA
must propose regulations for, at a
minimum, existing power plants that
use large volumes of cooling water by
February 28, 2002, and take final action
18 months later. EPA must propose
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regulations for, at a minimum, smallerflow power plants and factories in four
industrial sectors (pulp and paper
making, petroleum and coal products
manufacturing, chemical and allied
manufacturing, and primary metal
manufacturing) by June 15, 2003.
3. What Prior EPA Rulemakings
Addressed Cooling Water Intake
Structures?
In April 1976 EPA published a rule
under section 316(b) that addressed
cooling water intake structures. 41 FR
17387 (April 26, 1976), proposed at 38
FR 34410 (December 13, 1973). 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 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, fifty-eight electric utility
companies challenged these regulations,
arguing that EPA had failed to comply
with the requirements of the
Administrative Procedure Act (APA) in
promulgating the rule. Specifically, the
utilities argued that EPA had neither
published the development document
in the Federal Register nor properly
incorporated the document into the rule
by reference. The United States Court of
Appeals for the Fourth Circuit agreed
and, without reaching the merits of the
regulations themselves, remanded the
rule. Appalachian Power Co. v. Train,
566 F.2d 451 (4th Cir. 1977). EPA later
withdrew part 402. 44 FR 32956 (June
7, 1979). 40 CFR 401.14 remains in
effect.
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4. How Is Section 316(b) Being
Implemented Now?
Since the Fourth Circuit remanded
EPA’s section 316(b) regulations in
1977, NPDES permit authorities have
made decisions implementing section
316(b) on a case-by-case, site-specific
basis. EPA published draft guidance
addressing section 316(b)
implementation in 1977. See Draft
Guidance for Evaluating the Adverse
Impact of Cooling Water Intake
Structures on the Aquatic Environment:
Section 316(b) P.L. 92–500 (U.S. EPA,
1977). This 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 best technology available for
minimizing adverse environmental
impact. The 1977 section 316(b) draft
guidance states, ‘‘The environmentalintake 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 case-by-case
approach also is consistent with the
approach described in the 1976
development document referenced in
the remanded regulation.
The 1977 section 316(b) draft
guidance suggests the general process
for developing information needed to
support section 316(b) decisions and
presenting that information to the
permitting authority. The process
involves the development of a sitespecific study of the environmental
effects associated with each facility that
uses one or more cooling water intake
structures, as well as consideration of
that study by the permitting authority in
determining whether the facility must
make any changes for minimizing
adverse environmental impact. Where
adverse environmental impact is
present, the 1977 draft guidance
suggests a stepwise approach that
considers screening systems, size,
location, capacity, and other factors.
Although the draft guidance describes
the information that should be
developed, key factors that should be
considered, and a process for supporting
section 316(b) determinations, it does
not establish national standards based
on the best technology available for
minimizing adverse environmental
impact. Rather, the guidance leaves the
decisions on the appropriate location,
design, capacity, and construction of
each facility to the permitting authority.
Under this framework, the Director
determines whether appropriate studies
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have been performed and whether a
given facility has minimized adverse
environmental impact. The Director’s
determinations of whether the
appropriate studies have been
performed or whether a given facility
has minimized adverse environmental
impact have often been subject to
challenges that can take a long time to
resolve and may impose significant
resource demands on permitting
agencies, the public, and the permit
applicant.
5. Proposed New Facility Rule
On August 10, 2000, EPA published
proposed requirements for cooling water
intake structures at new facilities to
implement section 316(b) of the Clean
Water Act. EPA proposed a tiered
approach for reducing adverse
environmental impact, with three
degrees of stringency based on EPA’s
view of the relative vulnerability of each
category of waterbody. EPA received
numerous comments and data
submissions concerning the proposal.
See 65 FR 49060.
6. Notice of Data Availability
On May 25, 2001, EPA published a
Proposed Rule Notice of Data
Availability (NODA). This notice
presented a summary of the data EPA
had received or collected since
proposal, an assessment of the relevance
of the data to EPA’s analysis, some
modified technology options suggested
by commenters, and an alternative
regulatory approach suggested by a
trade group representing the utility
industry as well as EPA’s ideas about
how it might modify this suggested
approach. See 66 FR 28853. On July 6,
2001, EPA reopened the comment
period for certain documents and issues
related to those documents. See 66 FR
35572.
7. Public Participation
EPA has worked extensively with
stakeholders from the industry, public
interest groups, State agencies, and
other Federal agencies in the
development of this final rule. In
addition to comments received during
the comment periods of the original
proposal, the NODA, and the reopened
comment period for certain documents
referenced in the NODA, EPA
conducted two public meetings: in June
1998, in Arlington, Virginia (63 FR
27958) and in September, 1998, in
Alexandria, Virginia (63 FR 40683). In
addition, in September 1998, EPA staff
participated in a technical workshop
sponsored by the Electric Power
Research Institute on issues relating to
the definition and assessment of adverse
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environmental impact. EPA staff have
participated in other industry
conferences, met upon request on
numerous occasions with industry
representatives, and met on a number of
occasions with representatives of
environmental groups. EPA has also met
with stakeholders, attended conferences
and held workshops concerning topics
related to the existing source
rulemaking effort.
In the months leading up to
publication of the proposed rule, EPA
conducted a series of stakeholder
meetings to review the draft regulatory
framework for the proposed rule and
invited stakeholders to provide their
recommendations for the Agency’s
consideration. EPA managers have met
with the Utility Water Act Group,
Edison Electric Institute, representatives
from an individual utility, and with
representatives from the petroleum
refining, pulp and paper, and iron and
steel industries. EPA conducted
meetings with environmental groups
attended by representatives from
between 3 and 15 organizations. EPA
also met with the Association of State
and Interstate Water Pollution Control
Administrators (ASIWPCA) and, with
the assistance of ASIWPCA, conducted
a conference call in which
representatives from 17 states or
interstate organizations participated.
After publication of the proposed rule,
EPA continued to meet with
stakeholders at their request. These
meetings are summarized in the record.
III. Environmental Impact Associated
With Cooling Water Intake Structures
The proposed rule provided an
overview of the magnitude and type of
environmental impacts associated with
cooling water intake structures,
including several illustrative examples
of documented environmental impacts
at existing facilities (see 65 FR 49071
through 4). The majority of biological
impacts associated with intake
structures are closely linked to water
withdrawals from the various waters in
which the intakes are located.
Based on preliminary estimates from
a questionnaire sent to more than 1,200
existing power plants and factories,
industrial facilities in the United States
withdraw more than 279 billion gallons
of cooling water a day from waters of
the U.S. The withdrawal of such large
quantities of cooling water affects vast
quantities of aquatic organisms
annually, including phytoplankton
(tiny, free-floating photosynthetic
organisms suspended in the water
column), zooplankton (small aquatic
animals, including fish eggs and larvae,
that consume phytoplankton and other
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zooplankton), fish, crustaceans,
shellfish, and many other forms of
aquatic life. Aquatic organisms drawn
into cooling water intake structures are
either impinged on components of the
cooling water intake structure or
entrained in the cooling water system
itself.
Impingement takes place when
organisms are trapped against intake
screens by the force of the water passing
through the cooling water intake
structure. Impingement can result in
starvation and exhaustion (organisms
are trapped against an intake screen or
other barrier at the entrance to the
cooling water intake structure),
asphyxiation (organisms are pressed
against an intake screen or other barrier
at the entrance to the cooling water
intake structure by velocity forces that
prevent proper gill movement, or
organisms are removed from the water
for prolonged periods of time), and
descaling (fish lose scales when
removed from an intake screen by a
wash system) and other physical harms.
Entrainment occurs when organisms
are drawn through the cooling water
intake structure into the cooling system.
Organisms that become entrained are
normally relatively small benthic,1
planktonic,2 and nektonic 3 organisms,
including early life stages of fish and
shellfish. Many of these small organisms
serve as prey for larger organisms that
are found higher on the food chain. As
entrained organisms pass through a
plant’s cooling system they are subject
to mechanical, thermal, and/or toxic
stress. Sources of such stress include
physical impacts in the pumps and
condenser tubing, pressure changes
caused by diversion of the cooling water
into the plant or by the hydraulic effects
of the condensers, sheer stress, thermal
shock in the condenser and discharge
tunnel, and chemical toxemia induced
by antifouling agents such as chlorine.
The mortality rate of entrained
organisms varies by species and can be
high under normal operating
conditions.4 5 In the case of either
1 Refers to bottom dwellers that are generally
small and sessile (attached) such as mussels and
anemones, but can include certain large motile (able
to move) species such as crabs and shrimp. These
species can be important members of the food
chain.
2 Refers to free-floating microscopic plants and
animals, including the egg and larval stages of fish
and invertebrates that have limited swimming
abilities. Plankton are also an important source of
food for other aquatic organisms and an essential
component of the food chain in aquatic ecosystems.
3 Refers to free-swimming organisms (e.g., fish,
turtles, marine mammals) that move actively
through the water column and against currents.
4 Mayhew, D.A., L.D. Jensen, D.F. Hanson, and
P.H. Muessig. 2000. A comparative review of
entrainment survival studies at power plants in
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impingement or entrainment, a
substantial number of aquatic organisms
are killed or subjected to significant
harm.
In addition to impingement and
entrainment losses associated with the
operation of the cooling water intake
structure, EPA is concerned about the
cumulative overall degradation of the
aquatic environment as a consequence
of (1) multiple intake structures
operating in the same watershed or in
the same or nearby reaches and (2)
intakes located within or adjacent to an
impaired waterbody. Historically,
impacts related to cooling water intake
structures have been evaluated on a
facility-by-facility basis. The potential
cumulative effects of multiple intakes
located within a specific waterbody or
along a coastal segment are largely
unknown (one relevant example is
provided for the Hudson River; see
discussion below). There is concern,
however, about the effects of multiple
intakes on fishery stocks. As an
example, the Atlantic States Marine
Fisheries Commission has been
requested by its member States to
investigate the cumulative impacts on
commercial fishery stocks, particularly
overutilized stocks, attributable to
cooling water intakes located in coastal
regions of the Atlantic.6 Specifically, the
study will focus on revising existing
fishery management models so that they
accurately consider and account for fish
losses from intake structures.
EPA analyses suggest that over 99
percent of the existing facilities with
cooling water withdrawal that EPA
surveyed in its section 316(b) survey of
existing facilities are located within 2
miles of waters that are identified as
impaired and listed by a State or Tribe
as needing development of a total
maximum daily load (TMDL) to restore
the waterbody to its designated use.
EPA notes that the top four leading
causes of waterbody impairment
(siltation, nutrients, bacteria, and
metals) affect the aquatic life uses of a
waterbody. The Agency believes that
cooling water intakes potentially
contribute additional stress to waters
already showing aquatic life impairment
from other sources such as industrial
discharges and urban stormwater.
EPA is also concerned about the
potential impacts of cooling water
estuarine environments. Environmental Science
and Policy 3:S295–S301.
5 EPRI. 2000. Review of entrainment survival
studies: 1970–2000. Prepared by EA Engineering
Science and Technology for the Electric Power
Research Institute, Palo Alto, CA.
6 Personal communication, telephone
conversation between D. Hart (EPA) and L. Kline
(ASMFC), 2001.
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65263
intake structures located in or near
habitat areas that support threatened,
endangered, or other protected species.
Although limited information is
available on locations of threatened or
endangered species that are vulnerable
to impingement or entrainment, such
impacts do occur. For example, EPA is
aware that from 1976 to 1994,
approximately 3,200 threatened or
endangered sea turtles entered enclosed
cooling water intake canals at the St.
Lucie Nuclear Generating Plant in
Florida.7 The plant developed a captureand-release program in response to
these events. Most of the entrapped
turtles were captured and released alive;
however, approximately 160 turtles did
not survive. More recently, the number
of sea turtles being drawn into the
intake canal increased to approximately
600 per year; this increase led to a
requirement for barrier nets to minimize
entrapment.
Finally, in the proposed rule EPA
expressed concern about environmental
impacts associated with the
construction of new cooling water
intake structures. Three main factors
contribute to the environmental
impacts: displacement of biota and
habitat resulting from the physical
placement of a new cooling water intake
structure in an aquatic environment,
increased levels of turbidity in the
aquatic environment, and effects on
biota and habitat associated with
aquatic disposal of materials excavated
during construction. Existing programs,
such as the CWA section 404 program,
National Environmental Policy Act
(NEPA) program, and programs under
State/Tribal law, include requirements
that address many of the environmental
impact concerns associated with the
construction of new intakes (see Section
VII. G for applicable Federal statutes).
EPA recognizes that impacts related to
construction of cooling water intake
structures can occur and defers to the
regulatory authority provided within the
above-listed programs to evaluate the
potential for impacts and minimize their
extent.
In the proposed rule and NODA, EPA
provided a number of examples of
impingement and entrainment impacts
that can be associated with existing
facilities. It is important to note that
these examples were not meant to
predict effects at new facilities but
rather to illustrate that the number of
organisms impinged and entrained by a
facility can be substantial. EPA also
7 Florida Power and Light Company. 1995.
Assessment of the impacts at the St. Lucie Nuclear
Generating Plant on sea turtle species found in the
inshore waters of Florida.
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Appendix 3 to The Preamble—Examples of Areas and Volumes Defined in Estuaries or Tidal Rivers By The Tidal
Excursion Distance
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BILLING CODE 6560–50–C
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25)
65337
Construction Technology Plan as
required in § 125.86(b)(4) of this chapter
should be revised. This supporting
*
*
*
*
*
(r) Applications for facilities with
information must include existing data
cooling water intake structures—(1) New (if they are available). However, you
facilities with new or modified cooling
may supplement the data using newly
PART 9—OMB APPROVALS UNDER
water intake structures. New facilities
conducted field studies if you choose to
THE PAPERWORK REDUCTION ACT
do so. The information you submit must
with cooling water intake structures as
include:
defined in part 125, subpart I, of this
1. The authority citation for part 9
(i) A list of the data in paragraphs
chapter must report the information
continues to read as follows:
(r)(4)(ii) through (vi) of this section that
required under paragraphs (r)(2), (3),
are not available and efforts made to
Authority: 7 U.S.C. 135 et seq., 136–136y;
and (4) of this section and § 125.86 of
15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671, this chapter. Requests for alternative
identify sources of the data;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
(ii) A list of species (or relevant taxa)
requirements under § 125.85 of this
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318,
for all life stages and their relative
chapter must be submitted with your
1321, 1326, 1330, 1342, 1344, 1345 (d) and
abundance in the vicinity of the cooling
permit application.
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
water intake structure;
(2)
Source
water
physical
data.
These
1971–1975 Comp. p. 973; 42 U.S.C. 241,
(iii) Identification of the species and
include:
242b, 243, 246, 300f, 300g, 300g–1, 300g–2,
life stages that would be most
(i) A narrative description and scaled
300g–3, 300g–4, 300g–5, 300g–6, 300j–1,
susceptible to impingement and
drawings showing the physical
300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,
entrainment. Species evaluated should
configuration of all source water bodies
6901–6992k, 7401–7671q, 7542, 9601–9657,
include the forage base as well as those
11023, 11048.
used by your facility, including areal
most important in terms of significance
dimensions, depths, salinity and
2. In § 9.1 the table is amended by
to commercial and recreational
temperature regimes, and other
adding entries in numerical order under documentation that supports your
fisheries;
the indicated heading to read as follows: determination of the water body type
(iv) Identification and evaluation of
the
primary period of reproduction,
§ 9.1 OMB approvals under the Paperwork where each cooling water intake
larval recruitment, and period of peak
structure
is
located;
Reduction Act.
(ii) Identification and characterization abundance for relevant taxa;
*
*
*
*
*
(v) Data representative of the seasonal
of the source waterbody’s hydrological
and
daily activities (e.g., feeding and
and geomorphological features, as well
OMB
water column migration) of biological
40 CFR citation
Control No. as the methods you used to conduct any
organisms in the vicinity of the cooling
physical studies to determine your
water intake structure;
intake’s area of influence within the
(vi) Identification of all threatened,
*
*
*
*
*
waterbody and the results of such
endangered, and other protected species
studies; and
EPA Administered Permit Programs: The
that might be susceptible to
(iii) Locational maps.
National Pollutant Discharge Elimination
impingement and entrainment at your
(3) Cooling water intake structure
System
cooling water intake structures;
data. These include:
(vii) Documentation of any public
(i) A narrative description of the
participation or consultation with
configuration of each of your cooling
*
*
*
*
*
Federal or State agencies undertaken in
water intake structures and where it is
development of the plan; and
122.21(r) ...................................
2040–0241 located in the water body and in the
(viii) If you supplement the
water column;
information
requested in paragraph
(ii) Latitude and longitude in degrees,
*
*
*
*
*
(r)(4)(i) of this section with data
minutes,
and
seconds
for
each
of
your
Criteria and Standards for the National
collected using field studies, supporting
cooling water intake structures;
Pollutant Discharge Elimination System
documentation for the Source Water
(iii) A narrative description of the
Baseline Biological Characterization
operation of each of your cooling water
*
*
*
*
*
must include a description of all
125.86 .......................................
2040–0241 intake structures, including design
methods and quality assurance
125.87 .......................................
2040–0241 intake flows, daily hours of operation,
procedures for sampling, and data
125.88 .......................................
2040–0241 number of days of the year in operation
analysis including a description of the
125.89 .......................................
2040–0241 and seasonal changes, if applicable;
study area; taxonomic identification of
(iv) A flow distribution and water
*
*
*
*
*
sampled and evaluated biological
balance diagram that includes all
assemblages (including all life stages of
sources of water to the facility,
recirculating flows, and discharges; and fish and shellfish); and sampling and
PART 122—EPA ADMINISTERED
data analysis methods. The sampling
(v) Engineering drawings of the
PERMIT PROGRAMS: THE NATIONAL
and/or data analysis methods you use
cooling
water
intake
structure.
POLLUTANT DISCHARGE
must be appropriate for a quantitative
(4) Source water baseline biological
ELIMINATION SYSTEM
characterization data. This information survey and based on consideration of
is required to characterize the biological methods used in other biological studies
1. The authority citation for part 122
community in the vicinity of the cooling performed within the same source water
continues to read as follows:
body. The study area should include, at
water intake structure and to
Authority: The Clean Water Act, 33 U.S.C.
a minimum, the area of influence of the
characterize
the
operation
of
the
cooling
1251 et seq.
cooling water intake structure.
water intake structures. The Director
2. Section 122.21 is amended by
3. Section 122.44 is amended by
may also use this information in
adding a new paragraph (r) to read as
subsequent permit renewal proceedings adding paragraph (b)(3) to read as
follows:
follows:
to determine if your Design and
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is amended
as follows:
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Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
§ 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§ 123.25).
*
*
*
*
*
(b) * * *
(3) Requirements applicable to
cooling water intake structures at new
facilities under section 316(b) of the
CWA, in accordance with part 125,
subpart I, of this chapter.
*
*
*
*
*
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Section 123.25 is amended by
revising paragraph (a)(36) to read as
follows:
§ 123.25
Requirements for permitting.
Subpart I—Requirements Applicable to
Cooling Water Intake Structures for New
Facilities Under Section 316(b) of the Act
Sec.
125.80 What are the purpose and scope of
this subpart?
125.81 Who is subject to this subpart?
125.82 When must I comply with this
subpart?
125.83 What special definitions apply to
this subpart?
125.84 As an owner or operator of a new
facility, what must I do to comply with
this subpart?
125.85 May alternative requirements be
authorized?
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?
125.87 As an owner or operator of a new
facility, must I perform monitoring?
125.88 As an owner or operator of a new
facility, must I keep records and report?
125.89 As the Director, what must I do to
comply with the requirements of this
subpart?
(a) * * *
(36) Subparts A, B, D, H, and I of part
125 of this chapter;
*
*
*
*
*
Subpart I—Requirements Applicable to
Cooling Water Intake Structures for
New Facilities Under Section 316(b) of
the Act
PART 124—PROCEDURES FOR
DECISIONMAKING
§ 125.80 What are the purpose and scope
of this subpart?
1. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
2. Section 124.10 is amended by
redesignating paragraph (d)(1)(ix) as
paragraph (d)(1)(x) and adding a new
paragraph (d)(1)(ix) to read as follows:
§ 124.10 Public notice of permit actions
and public comment period.
*
*
*
*
*
(d) * * *
(1) * * *
(ix) Requirements applicable to
cooling water intake structures at new
facilities under section 316(b) of the
CWA, in accordance with part 125,
subpart I, of this chapter.
*
*
*
*
*
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 125
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.
2. Remove the existing heading for
subpart I and add new subpart I to part
125 to read as follows:
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(a) This subpart establishes
requirements that apply to the location,
design, construction, and capacity of
cooling water intake structures at new
facilities. The purpose of these
requirements is to establish the best
technology available for minimizing
adverse environmental impact
associated with the use of cooling water
intake structures. These requirements
are implemented through National
Pollutant Discharge Elimination System
(NPDES) permits issued under section
402 of the Clean Water Act (CWA).
(b) This subpart implements section
316(b) of the CWA for new facilities.
Section 316(b) of the CWA provides that
any standard established pursuant to
sections 301 or 306 of the CWA 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.
(c) New facilities that do not meet the
threshold requirements regarding
amount of water withdrawn or
percentage of water withdrawn for
cooling water purposes in § 125.81(a)
must meet requirements determined on
a case-by-case, best professional
judgement (BPJ) basis.
(d) Nothing in this subpart shall be
construed to preclude or deny the right
of any State or political subdivision of
a State or any interstate agency under
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section 510 of the CWA to adopt or
enforce any requirement with respect to
control or abatement of pollution that is
more stringent than those required by
Federal law.
§ 125.81
Who is subject to this subpart?
(a) This subpart applies to a new
facility if it:
(1) Is a point source that uses or
proposes to use a cooling water intake
structure;
(2) Has at least one cooling water
intake structure that uses at least 25
percent of the water it withdraws for
cooling purposes as specified in
paragraph (c) of this section; and
(3) Has a design intake flow greater
than two (2) million gallons per day
(MGD).
(b) Use of a cooling water intake
structure includes obtaining cooling
water by any sort of contract or
arrangement with an independent
supplier (or multiple suppliers) of
cooling water if the supplier or
suppliers withdraw(s) water from waters
of the United States. Use of cooling
water does not include obtaining
cooling water from a public water
system or the use of treated effluent that
otherwise would be discharged to a
water of the U.S. This provision is
intended to prevent circumvention of
these requirements by creating
arrangements to receive cooling water
from an entity that is not itself a point
source.
(c) The threshold requirement that at
least 25 percent of water withdrawn be
used for cooling purposes must be
measured on an average monthly basis.
A new facility meets the 25 percent
cooling water threshold if, based on the
new facility’s design, any monthly
average over a year for the percentage of
cooling water withdrawn is expected to
equal or exceed 25 percent of the total
water withdrawn.
(d) This subpart does not apply to
facilities that employ cooling water
intake structures in the offshore and
coastal subcategories of the oil and gas
extraction point source category as
defined under 40 CFR 435.10 and 40
CFR 435.40.
§ 125.82 When must I comply with this
subpart?
You must comply with this subpart
when an NPDES permit containing
requirements consistent with this
subpart is issued to you.
§ 125.83 What special definitions apply to
this subpart?
The following special definitions
apply to this subpart:
Annual mean flow means the average
of daily flows over a calendar year.
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Historical data (up to 10 years) must be
used where available.
Closed-cycle recirculating system
means a system designed, using
minimized makeup and blowdown
flows, to withdraw water from a natural
or other water source to support contact
and/or noncontact cooling uses within a
facility. The water is usually sent to a
cooling canal or channel, lake, pond, or
tower to allow waste heat to be
dissipated to the atmosphere and then is
returned to the system. (Some facilities
divert the waste heat to other process
operations.) New source water (make-up
water) is added to the system to
replenish losses that have occurred due
to blowdown, drift, and evaporation.
Cooling water means water used for
contact or noncontact cooling, including
water used for equipment cooling,
evaporative cooling tower makeup, and
dilution of effluent heat content. The
intended use of the cooling water is to
absorb waste heat rejected from the
process or processes used, or from
auxiliary operations on the facility’s
premises. Cooling water that is used in
a manufacturing process either before or
after it is used for cooling is considered
process water for the purposes of
calculating the percentage of a new
facility’s intake flow that is used for
cooling purposes in § 125.81(c).
Cooling water intake structure means
the total physical structure and any
associated constructed waterways used
to withdraw cooling water from waters
of the U.S. The cooling water intake
structure extends from the point at
which water is withdrawn from the
surface water source up to, and
including, the intake pumps.
Design intake flow means the value
assigned (during the facility’s design) to
the total volume of water withdrawn
from a source water body over a specific
time period.
Design intake velocity means the
value assigned (during the design of a
cooling water intake structure) to the
average speed at which intake water
passes through the open area of the
intake screen (or other device) against
which organisms might be impinged or
through which they might be entrained.
Entrainment means the incorporation
of all life stages of fish and shellfish
with intake water flow entering and
passing through a cooling water intake
structure and into a cooling water
system.
Estuary means a semi-enclosed body
of water that has a free connection with
open seas and within which the
seawater is measurably diluted with
fresh water derived from land drainage.
The salinity of an estuary exceeds 0.5
parts per thousand (by mass) but is
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typically less than 30 parts per thousand
(by mass).
Existing facility means any facility
that is not a new facility.
Freshwater river or stream means a
lotic (free-flowing) system that does not
receive significant inflows of water from
oceans or bays due to tidal action. For
the purposes of this rule, a flow-through
reservoir with a retention time of 7 days
or less will be considered a freshwater
river or stream.
Hydraulic zone of influence means
that portion of the source waterbody
hydraulically affected by the cooling
water intake structure withdrawal of
water.
Impingement means the entrapment
of all life stages of fish and shellfish on
the outer part of an intake structure or
against a screening device during
periods of intake water withdrawal.
Lake or reservoir means any inland
body of open water with some
minimum surface area free of rooted
vegetation and with an average
hydraulic retention time of more than 7
days. Lakes or reservoirs might be
natural water bodies or impounded
streams, usually fresh, surrounded by
land or by land and a man-made
retainer (e.g., a dam). Lakes or reservoirs
might be fed by rivers, streams, springs,
and/or local precipitation. Flow-through
reservoirs with an average hydraulic
retention time of 7 days or less should
be considered a freshwater river or
stream.
Maximize means to increase to the
greatest amount, extent, or degree
reasonably possible.
Minimum ambient source water
surface elevation means the elevation of
the 7Q10 flow for freshwater streams or
rivers; the conservation pool level for
lakes or reservoirs; or the mean low
tidal water level for estuaries or oceans.
The 7Q10 flow is the lowest average 7
consecutive day low flow with an
average frequency of one in 10 years
determined hydrologically. The
conservation pool is the minimum
depth of water needed in a reservoir to
ensure proper performance of the
system relying upon the reservoir. The
mean low tidal water level is the
average height of the low water over at
least 19 years.
Minimize means to reduce to the
smallest amount, extent, or degree
reasonably possible.
Natural thermal stratification means
the naturally-occurring division of a
waterbody into horizontal layers of
differing densities as a result of
variations in temperature at different
depths.
New facility means any building,
structure, facility, or installation that
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meets the definition of a ‘‘new source’’
or ‘‘new discharger’’ in 40 CFR 122.2
and 122.29(b)(1), (2), and (4) and is a
greenfield or stand-alone facility;
commences construction after January
17, 2002; and uses either a newly
constructed cooling water intake
structure, or an existing cooling water
intake structure whose design capacity
is increased to accommodate the intake
of additional cooling water. New
facilities include only ‘‘greenfield’’ and
‘‘stand-alone’’ facilities. A greenfield
facility is a facility that is constructed at
a site at which no other source is
located, or that totally replaces the
process or production equipment at an
existing facility (see 40 CFR
122.29(b)(1)(i) and (ii)). A stand-alone
facility is a new, separate facility that is
constructed on property where an
existing facility is located and whose
processes are substantially independent
of the existing facility at the same site
(see 40 CFR 122.29(b)(1)(iii)). New
facility does not include new units that
are added to a facility for purposes of
the same general industrial operation
(for example, a new peaking unit at an
electrical generating station).
(1) Examples of ‘‘new facilities’’
include, but are not limited to: the
following scenarios:
(i) A new facility is constructed on a
site that has never been used for
industrial or commercial activity. It has
a new cooling water intake structure for
its own use.
(ii) A facility is demolished and
another facility is constructed in its
place. The newly-constructed facility
uses the original facility’s cooling water
intake structure, but modifies it to
increase the design capacity to
accommodate the intake of additional
cooling water.
(iii) A facility is constructed on the
same property as an existing facility, but
is a separate and independent industrial
operation. The cooling water intake
structure used by the original facility is
modified by constructing a new intake
bay for the use of the newly constructed
facility or is otherwise modified to
increase the intake capacity for the new
facility.
(2) Examples of facilities that would
not be considered a ‘‘new facility’’
include, but are not limited to, the
following scenarios:
(i) A facility in commercial or
industrial operation is modified and
either continues to use its original
cooling water intake structure or uses a
new or modified cooling water intake
structure.
(ii) A facility has an existing intake
structure. Another facility (a separate
and independent industrial operation),
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is constructed on the same property and
connects to the facility’s cooling water
intake structure behind the intake
pumps, and the design capacity of the
cooling water intake structure has not
been increased. This facility would not
be considered a ‘‘new facility’’ even if
routine maintenance or repairs that do
not increase the design capacity were
performed on the intake structure.
Ocean means marine open coastal
waters with a salinity greater than or
equal to 30 parts per thousand (by
mass).
Source water means the water body
(waters of the U.S.) from which the
cooling water is withdrawn.
Thermocline means the middle layer
of a thermally stratified lake or
reservoir. In this layer, there is a rapid
decrease in temperatures.
Tidal excursion means the horizontal
distance along the estuary or tidal river
that a particle moves during one tidal
cycle of ebb and flow.
Tidal river means the most seaward
reach of a river or stream where the
salinity is typically less than or equal to
0.5 parts per thousand (by mass) at a
time of annual low flow and whose
surface elevation responds to the effects
of coastal lunar tides.
§ 125.84 As an owner or operator of a new
facility, what must I do to comply with this
subpart?
(a)(1) The owner or operator of a new
facility must comply with either:
(i) Track I in paragraph (b) or (c) of
this section; or
(ii) Track II in paragraph (d) of this
section.
(2) In addition to meeting the
requirements in paragraph (b), (c), or (d)
of this section, the owner or operator of
a new facility may be required to
comply with paragraph (e) of this
section.
(b) Track I requirements for new
facilities that withdraw equal to or
greater than 10 MGD. You must comply
with all of the following requirements:
(1) You must reduce your intake flow,
at a minimum, to a level commensurate
with that which can be attained by a
closed-cycle recirculating cooling water
system;
(2) You must design and construct
each cooling water intake structure at
your facility to a maximum throughscreen design intake velocity of 0.5
ft/s;
(3) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meets the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
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the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level;
(4) You must select and implement
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are migratory and/or sport
or commercial species of impingement
concern to the Director or any fishery
management agency(ies), which pass
through the hydraulic zone of influence
of the cooling water intake structure; or
(iii) It is determined by the Director or
any fishery management agency(ies) that
the proposed facility, after meeting the
technology-based performance
requirements in paragraphs (b)(1), (2),
and (3) of this section, would still
contribute unacceptable stress to the
protected species, critical habitat of
those species, or species of concern;
(5) You must select and implement
design and construction technologies or
operational measures for minimizing
entrainment of entrainable life stages of
fish and shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are or would be undesirable
cumulative stressors affecting
entrainable life stages of species of
concern to the Director or any fishery
management agency(ies), and it is
determined by the Director or any
fishery management agency(ies) that the
proposed facility, after meeting the
technology-based performance
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requirements in paragraphs (b)(1), (2),
and (3) of this section, would contribute
unacceptable stress to these species of
concern;
(6) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(b);
(7) You must implement the
monitoring requirements specified in
§ 125.87;
(8) You must implement the recordkeeping requirements specified in
§ 125.88.
(c) Track I requirements for new
facilities that withdraw equal to or
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:
(1) You must design and construct
each cooling water intake structure at
your facility to a maximum throughscreen design intake velocity of 0.5
ft/s;
(2) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meets the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level;
(3) You must select and implement
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are migratory and/or sport
or commercial species of impingement
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concern to the Director or any fishery
management agency(ies), which pass
through the hydraulic zone of influence
of the cooling water intake structure; or
(iii) It is determined by the Director or
any fishery management agency(ies) that
the proposed facility, after meeting the
technology-based performance
requirements in paragraphs (c)(1) and
(2) of this section, would still contribute
unacceptable stress to the protected
species, critical habitat of those species,
or species of concern;
(4) You must select and implement
design and construction technologies or
operational measures for minimizing
entrainment of entrainable life stages of
fish and shellfish;
(5) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(b)(2), (3), and (4);
(6) You must implement the
monitoring requirements specified in
§ 125.87;
(7) You must implement the
recordkeeping requirements specified in
§ 125.88.
(d) Track II. The owner or operator of
a new facility that chooses to comply
under Track II must comply with the
following requirements:
(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 comparable
level to that which you would achieve
were you to implement the
requirements of paragraphs (b)(1) and
(2) of this section.
(i) Except as specified in paragraph
(d)(1)(ii) 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. This showing may
include consideration of impacts other
than impingement mortality and
entrainment, including measures that
will result in increases in fish and
shellfish, but it must demonstrate
comparable performance for species that
the Director, in consultation with
national, state or tribal fishery
management agencies with
responsibility for fisheries potentially
affected by your cooling water intake
structure, identifies as species of
concern.
(ii) In cases where air emissions and/
or energy impacts that would result
from meeting the requirements of
paragraphs (b)(1) and (2) of this section
would result in significant adverse
impacts on local air quality, significant
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adverse impact on local water resources
not addressed under paragraph (d)(1)(i)
of this section, or significant adverse
impact on local energy markets, you
may request alternative requirements
under § 125.85.
(2) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meet the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level.
(3) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(c).
(4) You must implement the
monitoring requirements specified in
§ 125.87.
(5) You must implement the recordkeeping requirements specified in
§ 125.88.
(e) You must comply with any more
stringent requirements relating to the
location, design, construction, and
capacity of a cooling water intake
structure or monitoring requirements at
a new facility that the Director deems
are reasonably necessary to comply with
any provision of state law, including
compliance with applicable state water
quality standards (including designated
uses, criteria, and antidegradation
requirements).
§ 125.85 May alternative requirements be
authorized?
(a) Any interested person may request
that alternative requirements less
stringent than those specified in
§ 125.84(a) through (e) be imposed in
the permit. The Director may establish
alternative requirements less stringent
than the requirements of § 125.84(a)
through (e) only if:
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(1) There is an applicable requirement
under § 125.84(a) through (e);
(2) The Director determines that data
specific to the facility indicate that
compliance with the requirement at
issue would result in compliance costs
wholly out of proportion to those EPA
considered in establishing the
requirement at issue or would result in
significant adverse impacts on local air
quality, significant adverse impacts on
local water resources not addressed
under § 125.84(d)(1)(i), or significant
adverse impacts on local energy
markets;
(3) The alternative requirement
requested is no less stringent than
justified by the wholly out of proportion
cost or the significant adverse impacts
on local air quality, significant adverse
impacts on local water resources not
addressed under § 125.84(d)(1)(i), or
significant adverse impacts on local
energy markets; and
(4) The alternative requirement will
ensure compliance with other
applicable provisions of the Clean Water
Act and any applicable requirement of
state law.
(b) The burden is on the person
requesting the alternative requirement
to demonstrate that alternative
requirements should be authorized.
§ 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) As an owner or operator of a
new facility, you must submit to the
Director a statement that you intend to
comply with either:
(i) The Track I requirements for new
facilities that withdraw equal to or
greater than 10 MGD in § 125.84(b);
(ii) The Track I requirements for new
facilities that withdraw equal to or
greater than 2 MGD and less than 10
MGD in § 125.84(c);
(iii) The requirements for Track II in
§ 125.84 (d).
(2) You must also submit the
application information required by 40
CFR 122.21(r) and the information
required in either paragraph (b) of this
section for Track I or paragraph (c) of
this section for Track II when you apply
for a new or reissued NPDES permit in
accordance with 40 CFR 122.21.
(b) Track I application requirements.
To demonstrate compliance with Track
I requirements in § 125.84(b) or (c), you
must collect and submit to the Director
the information in paragraphs (b)(1)
through (4) of this section.
(1) Flow reduction information. If you
must comply with the flow reduction
requirements in § 125.84(b)(1), you must
submit the following information to the
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Director to demonstrate that you have
reduced your flow to a level
commensurate with that which can be
attained by a closed-cycle recirculating
cooling water system:
(i) A narrative description of your
system that has been designed to reduce
your intake flow to a level
commensurate with that which can be
attained by a closed-cycle recirculating
cooling water system and any
engineering calculations, including
documentation demonstrating that your
make-up and blowdown flows have
been minimized; and
(ii) If the flow reduction requirement
is met entirely, or in part, by reusing or
recycling water withdrawn for cooling
purposes in subsequent industrial
processes, you must provide
documentation that the amount of
cooling water that is not reused or
recycled has been minimized.
(2) Velocity information. You must
submit the following information to the
Director to demonstrate that you are
complying with the requirement to meet
a maximum through-screen design
intake velocity of no more than 0.5 ft/
s at each cooling water intake structure
as required in § 125.84(b)(2) and (c)(1):
(i) A narrative description of the
design, structure, equipment, and
operation used to meet the velocity
requirement; and
(ii) Design calculations showing that
the velocity requirement will be met at
minimum ambient source water surface
elevations (based on best professional
judgement using available hydrological
data) and maximum head loss across the
screens or other device.
(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) and
(c)(2):
(i) If your cooling water intake
structure is located in a freshwater river
or stream, you must provide the annual
mean flow and any supporting
documentation and engineering
calculations to show that your cooling
water intake structure meets the flow
requirements;
(ii) If your cooling water intake
structure is located in an estuary or tidal
river, you must provide the mean low
water tidal excursion distance and any
supporting documentation and
engineering calculations to show that
your cooling water intake structure
facility meets the flow requirements;
and
(iii) If your cooling water intake
structure is located in a lake or
reservoir, you must provide a narrative
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description of the water body thermal
stratification, and any supporting
documentation and engineering
calculations to show that the natural
thermal stratification and turnover
pattern will not be disrupted by the total
design intake flow. In cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish you must
provide supporting documentation and
include a written concurrence from any
fisheries management agency(ies) with
responsibility for fisheries potentially
affected by your cooling water intake
structure(s).
(4) Design and Construction
Technology Plan. To comply with
§ 125.84(b)(4) and (5), or (c)(3) and
(c)(4), you must submit to the Director
the following information in a Design
and Construction Technology Plan:
(i) Information to demonstrate
whether or not you meet the criteria in
§ 125.84(b)(4) and (b)(5), or (c)(3) and
(c)(4);
(ii) Delineation of the hydraulic zone
of influence for your cooling water
intake structure;
(iii) New facilities required to install
design and construction technologies
and/or operational measures must
develop a plan explaining the
technologies and measures you have
selected based on information collected
for the Source Water Biological Baseline
Characterization required by 40 CFR
122.21(r)(3). (Examples of appropriate
technologies include, but are not limited
to, wedgewire screens, fine mesh
screens, fish handling and return
systems, barrier nets, aquatic filter
barrier systems, etc. Examples of
appropriate operational measures
include, but are not limited to, seasonal
shutdowns or reductions in flow,
continuous operations of screens, etc.)
The plan must contain the following
information:
(A) A narrative description of the
design and operation of the design and
construction technologies, including
fish-handling and return systems, that
you will use to maximize the survival of
those species expected to be most
susceptible to impingement. Provide
species-specific information that
demonstrates the efficacy of the
technology;
(B) A narrative description of the
design and operation of the design and
construction technologies that you will
use to minimize entrainment of those
species expected to be the most
susceptible to entrainment. Provide
species-specific information that
demonstrates the efficacy of the
technology; and
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(C) Design calculations, drawings, and
estimates to support the descriptions
provided in paragraphs (b)(4)(iii)(A) and
(B) of this section.
(c) Application requirements for
Track II. If you have chosen to comply
with the requirements of Track II in
§ 125.84(d) you must collect and submit
the following information:
(1) Source waterbody flow
information. You must submit to the
Director the following information to
demonstrate that your cooling water
intake structure meets the source water
body requirements in § 125.84(d)(2):
(i) If your cooling water intake
structure is located in a freshwater river
or stream, you must provide the annual
mean flow and any supporting
documentation and engineering
calculations to show that your cooling
water intake structure meets the flow
requirements;
(ii) If your cooling water intake
structure is located in an estuary or tidal
river, you must provide the mean low
water tidal excursion distance and any
supporting documentation and
engineering calculations to show that
your cooling water intake structure
facility meets the flow requirements;
and
(iii) If your cooling water intake
structure is located in a lake or
reservoir, you must provide a narrative
description of the water body thermal
stratification, and any supporting
documentation and engineering
calculations to show that the natural
thermal stratification and thermal or
turnover pattern will not be disrupted
by the total design intake flow. In cases
where the disruption is determined to
be beneficial to the management of
fisheries for fish and shellfish you must
provide supporting documentation and
include a written concurrence from any
fisheries management agency(ies) with
responsibility for fisheries potentially
affected by your cooling water intake
structure(s).
(2) Track II Comprehensive
Demonstration Study. You must
perform and submit the results of a
Comprehensive Demonstration Study
(Study). This information is required to
characterize the source water baseline in
the vicinity of the cooling water intake
structure(s), characterize operation of
the cooling water intake(s), and to
confirm that the technology(ies)
proposed and/or implemented at your
cooling water intake structure reduce
the impacts to fish and shellfish to
levels comparable to those you would
achieve were you to implement the
requirements in § 125.84(b)(1)and (2) of
Track I. To meet the ‘‘comparable level’’
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requirement, you must demonstrate
that:
(i) You have 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); or
(ii) If your demonstration includes
consideration of impacts other than
impingement mortality and
entrainment, that the measures taken
will maintain the fish and shellfish in
the waterbody at a substantially similar
level to that which would be achieved
through § 125.84(b)(1) and (2); and
(iii) You must develop and submit a
plan to the Director containing a
proposal for how information will be
collected to support the study. The plan
must include:
(A) A description of the proposed
and/or implemented technology(ies) to
be evaluated in the Study;
(B) A list and description of any
historical studies characterizing the
physical and biological conditions in
the vicinity of the proposed or actual
intakes and their relevancy to the
proposed Study. If you propose to rely
on existing source water body data, it
must be no more than 5 years old, you
must demonstrate that the existing data
are sufficient to develop a scientifically
valid estimate of potential impingement
and entrainment impacts, and provide
documentation showing that the data
were collected using appropriate quality
assurance/quality control procedures;
(C) Any public participation or
consultation with Federal or State
agencies undertaken in developing the
plan; and
(D) A sampling plan for data that will
be collected using actual field studies in
the source water body. The sampling
plan must document all methods and
quality assurance procedures for
sampling, and data analysis. The
sampling and data analysis methods you
propose must be appropriate for a
quantitative survey and based on
consideration of methods used in other
studies performed in the source water
body. The sampling plan must include
a description of the study area
(including the area of influence of the
cooling water intake structure and at
least 100 meters beyond); taxonomic
identification of the sampled or
evaluated biological assemblages
(including all life stages of fish and
shellfish); and sampling and data
analysis methods; and
(iv) You must submit documentation
of the results of the Study to the
Director. Documentation of the results
of the Study must include:
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(A) Source Water Biological Study.
The Source Water Biological Study must
include:
(1) A taxonomic identification and
characterization of aquatic biological
resources including: a summary of
historical and contemporary aquatic
biological resources; determination and
description of the target populations of
concern (those species of fish and
shellfish and all life stages that are most
susceptible to impingement and
entrainment); and a description of the
abundance and temporal/spatial
characterization of the target
populations based on the collection of
multiple years of data to capture the
seasonal and daily activities (e.g.,
spawning, feeding and water column
migration) of all life stages of fish and
shellfish found in the vicinity of the
cooling water intake structure;
(2) An identification of all threatened
or endangered species that might be
susceptible to impingement and
entrainment by the proposed cooling
water intake structure(s); and
(3) A description of additional
chemical, water quality, and other
anthropogenic stresses on the source
waterbody.
(B) Evaluation of potential cooling
water intake structure effects. This
evaluation will include:
(1) Calculations of the reduction in
impingement mortality and entrainment
of all life stages of fish and shellfish that
would need to be achieved by the
technologies you have selected to
implement to meet requirements under
Track II. To do this, you must determine
the reduction in impingement mortality
and entrainment that would be achieved
by implementing the requirements of
§ 125.84(b)(1) and (2) of Track I at your
site.
(2) An engineering estimate of efficacy
for the proposed and/or implemented
technologies used to minimize
impingement mortality and entrainment
of all life stages of fish and shellfish and
maximize survival of impinged life
stages of fish and shellfish. You must
demonstrate that the technologies
reduce impingement mortality and
entrainment of all life stages of fish and
shellfish to a comparable level to that
which you would achieve were you to
implement the requirements in
§ 125.84(b)(1) and (2) of Track I. The
efficacy projection must include a sitespecific evaluation of technology(ies)
suitability for reducing impingement
mortality and entrainment based on the
results of the Source Water Biological
Study in paragraph (c)(2)(iv)(A) of this
section. Efficacy estimates may be
determined based on case studies that
have been conducted in the vicinity of
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the cooling water intake structure and/
or site-specific technology prototype
studies.
(C) Evaluation of proposed restoration
measures. If you propose to use
restoration measures to maintain the
fish and shellfish as allowed in
§ 125.84(d)(1)(i), you must provide the
following information to the Director:
(1) Information and data to show that
you have coordinated with the
appropriate fishery management
agency(ies); and
(2) A plan that provides a list of the
measures you plan to implement and
how you will demonstrate and continue
to ensure that your restoration measures
will maintain the fish and shellfish in
the waterbody to a substantially similar
level to that which would be achieved
through § 125.84(b)(1) and (2).
(D) Verification monitoring plan. You
must include in the Study the following:
(1) A plan to conduct, at a minimum,
two years of monitoring to verify the
full-scale performance of the proposed
or implemented technologies,
operational measures. The verification
study must begin at the start of
operations of the cooling water intake
structure and continue for a sufficient
period of time to demonstrate that the
facility is reducing the level of
impingement and entrainment to the
level documented in paragraph
(c)(2)(iv)(B) of this section. The plan
must describe the frequency of
monitoring and the parameters to be
monitored. The Director will use the
verification monitoring to confirm that
you are meeting the level of
impingement mortality and entrainment
reduction required in § 125.84(d), and
that the operation of the technology has
been optimized.
(2) A plan to conduct monitoring to
verify that the restoration measures will
maintain the fish and shellfish in the
waterbody to a substantially similar
level as that which would be achieved
through § 125.84(b)(1) and (2).
§ 125.87 As an owner or operator of a new
facility, must I perform monitoring?
As an owner or operator of a new
facility, you will be required to perform
monitoring to demonstrate your
compliance with the requirements
specified in § 125.84.
(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)(3) or the Comprehensive
Demonstration Study required by
§ 125.86(c)(2), depending on whether
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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)(3) or the Comprehensive
Demonstration Study required by
§ 125.86(c)(2). You must follow the
monitoring frequencies identified below
for at least two (2) years after the initial
permit issuance. After that time, the
Director may approve a request for less
frequent sampling in the remaining
years of the permit term and when the
permit is reissued, if supporting data
show that less frequent monitoring
would still allow for the detection of
any seasonal and daily variations in the
species and numbers of individuals that
are impinged or entrained.
(1) Impingement sampling. You must
collect samples to monitor impingement
rates (simple enumeration) for each
species over a 24-hour period and no
less than once per month when the
cooling water intake structure is in
operation.
(2) Entrainment sampling. You must
collect samples to monitor entrainment
rates (simple enumeration) for each
species over a 24-hour period and no
less than biweekly 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)(3) 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.
(b) Velocity monitoring. If your
facility uses surface intake screen
systems, you must monitor head loss
across the screens and correlate the
measured value with the design intake
velocity. The head loss across the intake
screen must be measured at the
minimum ambient source water surface
elevation (best professional judgment
based on available hydrological data).
The maximum head loss across the
screen for each cooling water intake
structure must be used to determine
compliance with the velocity
requirement in § 125.84(b)(2) or (c)(1). If
your facility uses devices other than
surface intake screens, you must
monitor velocity at the point of entry
through the device. You must monitor
head loss or velocity during initial
facility startup, and thereafter, at the
frequency specified in your NPDES
permit, but no less than once per
quarter.
(c) Visual or remote inspections. You
must either conduct visual inspections
or employ remote monitoring devices
during the period the cooling water
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intake structure is in operation. You
must conduct visual inspections at least
weekly to ensure that any design and
construction technologies required in
§ 125.84(b)(4) and (5), or (c)(3) and (4)
are maintained and operated to ensure
that they will continue to function as
designed. Alternatively, you must
inspect via remote monitoring devices
to ensure that the impingement and
entrainment technologies are
functioning as designed.
§ 125.88 As an owner or operator of a new
facility, must I keep records and report?
As an owner or operator of a new
facility you are required to keep records
and report information and data to the
Director as follows:
(a) You must keep records of all the
data used to complete the permit
application and show compliance with
the requirements, any supplemental
information developed under § 125.86,
and any compliance monitoring data
submitted under § 125.87, for a period
of at least three (3) years from the date
of permit issuance. The Director may
require that these records be kept for a
longer period.
(b) You must provide the following to
the Director in a yearly status report:
(1) Biological monitoring records for
each cooling water intake structure as
required by § 125.87(a);
(2) Velocity and head loss monitoring
records for each cooling water intake
structure as required by § 125.87(b); and
(3) Records of visual or remote
inspections as required in § 125.87(c).
§ 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)(3) and § 125.86 at the
time of the initial permit application
and before each permit renewal or
reissuance.
(1) After receiving the initial permit
application from the owner or operator
of a new facility, the Director must
determine applicable standards in
§ 125.84 to apply to the new facility. In
addition, the Director must review
materials to determine compliance with
the applicable standards.
(2) For each subsequent permit
renewal, the Director must review the
application materials and monitoring
data to determine whether
requirements, or additional
requirements, for design and
construction technologies or operational
measures should be included in the
permit.
(3) For Track II facilities, the Director
may review the information collection
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proposal plan required by
§ 125.86(c)(2)(iii). The facility may
initiate sampling and data collection
activities prior to receiving comment
from the Director.
(b) Permitting requirements. Section
316(b) requirements are implemented
for a facility through an NPDES permit.
As the Director, you must determine,
based on the information submitted by
the new facility in its permit
application, the appropriate
requirements and conditions to include
in the permit based on the track (Track
I or Track II) the new facility has chosen
to comply with. The following
requirements must be included in each
permit:
(1) Cooling water intake structure
requirements. At a minimum, the permit
conditions must include the
performance standards that implement
the requirements of § 125.84(b)(1), (2),
(3), (4) and (5); § 125.84(c)(1), (2), (3)
and (4); or § 125.84(d)(1) and (2). In
determining compliance with
proportional flow requirement in
§§ 125.84(b)(3)(ii); (c)(2)(ii); and
(d)(2)(ii), the director must consider
anthropogenic factors (those not
considered ‘‘natural’’) unrelated to the
new facility’s cooling water intake
structure that can influence the
occurrence and location of a
thermocline. These include source
water inflows, other water withdrawals,
managed water uses, wastewater
discharges, and flow/level management
practices (e.g., some reservoirs release
water from below the surface, close to
the deepest areas).
(i) For a facility that 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
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) For a facility that chooses Track II,
you must review the information
submitted with the Comprehensive
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Demonstration Study information
required in § 125.86(c)(2), evaluate the
suitability of the proposed design and
construction technologies and
operational measures to determine
whether they will reduce both
impingement mortality and entrainment
of all life stages of fish and shellfish to
90 percent or greater of the reduction
that could be achieved through Track I.
If you determine that restoration
measures are appropriate at the new
facility for consideration of impacts
other than impingement mortality and
entrainment, you must review the
Evaluation of Proposed Restoration
Measures and evaluate whether the
proposed measures will maintain the
fish and shellfish in the waterbody at a
substantially similar level to that which
would be achieved through
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§ 125.84(b)(1) and (2). 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,
operational measures and restoration
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).
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(2) Monitoring conditions. At a
minimum, the permit must require the
permittee to perform the monitoring
required in § 125.87. You may modify
the monitoring program when the
permit is reissued and during the term
of the permit based on changes in
physical or biological conditions in the
vicinity of the cooling water intake
structure. The Director may require
continued monitoring based on the
results of the Verification Monitoring
Plan in § 125.86(c)(2)(iv)(D).
(3) Record keeping and reporting. At
a minimum, the permit must require the
permittee to report and keep records as
required by § 125.88.
[FR Doc. 01–28968 Filed 12–17–01; 8:45 am]
BILLING CODE 6560–50–P
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Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
3. § 401.35 is amended by: removing
the word ‘‘and’’ after the semicolon in
paragraph (a); removing the period after
paragraph (b) and replacing it with a
semicolon; and adding two new
paragraphs (c) and (d) to read as follows:
§ 401.35
Navigation underway.
*
*
*
*
*
(c) Man the wheelhouse of the vessel
at all times by either the master or
certified deck officer and by another
qualified crewmember; and
(d) Have sufficient well rested
crewmembers available for mooring
operations and other essential duties.
Issued at Washington, DC on June 16, 2003.
Albert S. Jacquez,
Administrator, Saint Lawrence Seaway
Development Corporation.
[FR Doc. 03–15537 Filed 6–18–03; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 125
[FRL–7514–9]
RIN 2040–AD85
National Pollutant Discharge
Elimination System—Amendment of
Final Regulations Addressing Cooling
Water Intake Structures for New
Facilities
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
Today’s final rule makes
minor changes to EPA’s final rule
published December 18, 2001,
implementing section 316(b) of the
Clean Water Act (CWA) for new
facilities that use water withdrawn from
rivers, streams, lakes, reservoirs,
estuaries, oceans or other waters of the
United States for cooling. The December
2001 rule instituted national
technology-based performance
requirements applicable to the location,
design, construction, and capacity of
cooling water intake structures at new
facilities. These national requirements
establish the best technology available
for minimizing adverse environmental
impact associated with the use of these
structures. EPA is making several minor
changes to the December 2001 rule
because, in several instances, the final
rule text does not reflect the Agency’s
intent.
DATES: This final rule is effective on July
21, 2003. For judicial review purposes,
this final rule is promulgated as of 1
p.m. Eastern Standard Time (EST) on
July 3, 2003, as provided in 40 CFR 23.2
and 23.7.
FOR FURTHER INFORMATION CONTACT:
Martha Segall, USEPA Office of Water
by phone at (202) 566–1041 or by e-mail
at rule.316b@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. General Information
A. Regulated Entities
This final rule applies to new
greenfield and stand-alone facilities that
use cooling water intake structures to
withdraw water from waters of the U.S.
and that have or require a National
Pollutant Discharge Elimination System
(NPDES) permit issued under section
402 of the CWA. New facilities subject
to this regulation include those that
have a design intake flow of greater than
two (2) million gallons per day (MGD)
and that use at least twenty-five (25)
percent of water withdrawn for cooling
purposes. Today’s rule does not apply to
existing facilities, major modifications
to existing facilities that would be ‘‘new
sources’’ under 40 CFR 129.29(b) as that
term is used in the effluent guidelines
and standards program, or facilities that
employ cooling water intake structures
in the offshore oil and gas extraction
point source category as defined under
40 CFR 435.10 and 40 CFR 435.40.
The following table is not intended to
be exhaustive; rather, it provides a guide
for readers regarding entities likely to be
regulated by this action. The table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
facility is regulated by this action, you
should carefully examine the
applicability criteria at 40 CFR 125.81.
If you have questions about the
applicability of this action to a
particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Examples of regulated entities
Standard industrial
classification codes
Federal, State and Local
Government.
Operators of steam electric generating point source dischargers
that employ cooling water intake structures.
4911 and 493 ............
Industry ...............................
Operators of industrial point source dischargers that employ
cooling water intake structures.
Steam electric generating ...............................................................
See below .................
Agricultural production ....................................................................
Metal mining ...................................................................................
Oil and gas extraction (Excluding offshore and coastal subcategories).
Mining and quarrying of nonmetallic minerals ...............................
Food and kindred products ............................................................
0133 ..........................
1011 ..........................
1311, 1321 ................
Tobacco products ...........................................................................
Textile mill products ........................................................................
2141 ..........................
2211 ..........................
Category
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36749
4911 and 493 ............
1474 ..........................
2046, 2061, 2062,
2063, 2075, 2085.
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19JNR1
North American Industry Codes
(NAIC)
221111, 221112,
221113, 221119,
221121, 221122,
221111, 221112,
221113, 221119,
221121, 221122
See below
221111, 221112,
221113, 221119,
221121, 221122,
221111, 221112,
221113, 221119,
221121, 221122
111991, 11193
21221
211111, 211112
212391
311221, 311311,
311312, 311313,
311222, 311225,
31214
312229, 31221
31321
36750
Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
Category
Standard industrial
classification codes
Examples of regulated entities
Lumber and wood products, except furniture ................................
2415, 2421, 2436,
2493.
Paper and allied products ..............................................................
2611, 2621, 2631,
2676.
Chemical and allied products .........................................................
28 (except 2895,
2893, 2851, and
2879).
2911, 2999 ................
3011, 3069 ................
Petroleum refining and related industries ......................................
Rubber and miscellaneous plastics products .................................
Stone, clay, glass, and concrete products .....................................
Primary metal industries .................................................................
3241 ..........................
3312, 3313, 3315,
3316, 3317, 3334,
3339, 3353, 3363,
3365, 3366.
Fabricated metal products, except machinery and transportation
equipment.
3421, 3499 ................
Industrial and commercial machinery and computer equipment ...
3523, 3531 ................
Transportation equipment ...............................................................
3724, 3743, 3764 ......
Measuring, analyzing, and controlling instruments; photographic,
medical, and optical goods; watches and clocks.
Electric, gas, and sanitary services ................................................
3861 ..........................
Educational services .......................................................................
Engineering, accounting, research, management and related
services.
8221 ..........................
8731 ..........................
B. How Can I Get Copies of This
Document and Other Related
Information?
1. Docket. EPA has established an
official public docket for this action
under Docket ID No. OW–2002–0052.
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 Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
The official public docket is the
collection of materials that is available
for public viewing at the Water Docket
in the EPA Docket Center, (EPA/DC)
EPA West, Room B102, 1301
Constitution Ave., NW, Washington,
DC. The EPA Docket Center 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
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15:48 Jun 18, 2003
Jkt 200001
number for the Water Docket is (202)
566–2426.
2. Electronic Access. You may access
this Federal Register document
electronically through the EPA Internet
under the ‘‘Federal Register’’ listings at
http://www.epa.gov/fedrgstr/.
An electronic version of the public
docket is available through EPA’s
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at http://www.epa.gov/edocket/
to view public comments, access the
index listing of the contents of the
official public docket, and to access
those documents in the public docket
that are available electronically.
Although not all docket materials may
be available electronically, you may still
access any of the publicly available
docket materials through the docket
facility identified in Unit I.B. Once in
the system, select ‘‘search,’’ then key in
the appropriate docket identification
number.
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4911, 4931, 4939,
4961.
North American Industry Codes
(NAIC)
321912, 321113,
321918, 321999,
321212, 321219
3221, 322121, 32213,
322121, 322122,
32213, 322291
325 (except 325182,
32591, 32551,
32532)
32411, 324199
326211, 31332,
326192, 326299
32731
324199, 331111,
331112, 331492,
331222, 332618,
331221, 22121,
331312, 331419,
331315, 331521,
331524, 331525
332211, 337215,
332117, 332439,
33251, 332919,
339914, 332999
333111, 332323,
332212, 333922,
22651, 333923,
33312
336412, 333911,
33651, 336416
333315, 325992
221111, 221112,
221113, 221119,
221121, 221122,
22121, 22133
61131
54171
II. Legal Authority, Purpose, and Scope
of Today’s Final Rule
On December 18, 2001, EPA
published a final rule implementing
section 316(b) of the Clean Water Act for
new facilities that use water withdrawn
from rivers, streams, lakes, reservoirs,
estuaries, oceans or other waters of the
United States for cooling purposes. EPA
reviewed the final rule text and believes
that the regulatory language did not
correctly reflect EPA’s intent with
respect to three issues. On December 26,
2002, EPA published a direct final rule
(67 FR 78948) amending the text of the
December 2001 final rule. EPA
published a companion proposed rule
on the same day as the direct final rule
(67 FR 78956). The proposed rule
invited comment on the substance of the
direct final rule. The proposed rule
stated that if EPA received adverse
comment by January 27, 2003, the direct
final rule would not take effect and EPA
would publish a notice in the Federal
Register withdrawing the direct final
rule before the March 26, 2003, effective
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date. EPA subsequently received
adverse comment on the direct final
rule, and withdrew the direct final rule
on March 19, 2003 (68 FR 14164).
Today’s rulemaking constitutes EPA’s
final action on the proposed rule. With
this final action, EPA is addressing and
responding to the adverse comments
received on the proposed rule and the
direct final rule.
The legal authority, background, and
basis for the December 2001 rule are
discussed in the Federal Register notice
of rulemaking (66 FR 65256, December
18, 2001). EPA often refers to the final
rule implementing section 316(b) for
new facilities as the ‘‘Phase I rule.’’ This
term is used to avoid confusion with
other phases of the section 316(b)
rulemaking that mainly cover existing
facilities.
III. Summary of the Final Rule
This rule makes minor changes to the
regulations at 40 CFR 125.80, National
Pollutant Discharge Elimination System:
Regulations Addressing Cooling Water
Intake Structures for New Facilities
published on December 18, 2001 (66 FR
65256). The changes will clarify three
technical issues on velocity monitoring,
authority to require additional design
and construction technologies, and
procedures governing requests for less
stringent alternative requirements.
A. Velocity Monitoring
The first revision to the regulatory
text relates to velocity monitoring. In
the final rule for cooling water intake
structures at new facilities, EPA
required that velocity be monitored at
cooling water intake structures at least
once per quarter. In monitoring velocity,
facilities that employ surface intake
screens are required to monitor head
loss across the intake screens at the
‘‘minimum ambient source water
surface elevation.’’ EPA qualified that
language in the requirement by adding
a parenthetical phrase that would allow
the minimum ambient source water
surface elevation to be determined using
the Director’s best professional
judgment based on available
hydrological data. See 40 CFR 125.87(b).
However, EPA also defined ‘‘minimum
ambient source water surface elevation’’
at 40 CFR 125.83 to mean ‘‘the elevation
of the 7Q10 flow for freshwater streams
or rivers; the conservation pool level for
lakes or reservoirs; or the mean low
tidal water level for estuaries or
oceans.’’ EPA further defined each of
these low flows in terms of a temporal
and hydrological basis. See 66 FR
65339, December 18, 2001.
EPA understands that ambient source
water surface elevations fluctuate
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through time, and it would be difficult,
if not infeasible, to coordinate the
measurements of head loss to the time
when these minimum ambient source
water surface elevations were occurring
in the waterbody. It was EPA’s intent
that the velocity be measured at a time
that is predicted, based on knowledge of
the hydrology of the waterbody, to be a
time of reasonable low flow
representative of the low surface
elevations that might occur during the
months that comprise each quarter. For
example, in tidal waters the velocity
measurement should be taken at a low
tide. If tide tables and/or other records
indicate that the surface elevations in a
particular month are typically lower
than in other months, the facility should
measure intake velocity at one of the
lowest predicted tides during that
particular month. In reservoirs where
water levels are drawn down at certain
parts of the year, the facility should
measure intake velocity immediately
after a drawdown or release has
occurred. In freshwater rivers and
streams, the facility should measure
intake velocity during the month that
typically has the lowest flows. Such
monitoring should occur at a time when
flows are not temporarily elevated due
to recent storm events. The Director
should determine and specify the
appropriate time of measurement in the
facility’s NPDES permit based on
available existing hydrological
information and information submitted
by the owner of the facility with its
permit application. Accordingly, to
conform the regulatory text to EPA’s
intent, EPA believes that the regulatory
language at 40 CFR 125.87 is sufficient
and that the definition of ‘‘minimum
ambient source water surface elevation’’
is no longer needed. Therefore, today’s
action will only delete the definition of
‘‘minimum ambient source water
surface elevation’’ at 40 CFR 125.83.
B. Director’s Authority to Require
Additional Design and Construction
Technologies or Operational Measures
in Track I
The second set of revisions to the
regulatory text relates to the Director’s
authority to require additional design
and construction technologies or
operational measures in Track I. There
are five provisions at issue: 40 CFR
125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii),
(c)(3)(ii), and (c)(3)(iii). Four of these
provisions specify circumstances where
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish are required. At 40 CFR
125.84(b)(4)(ii) and (c)(3)(ii), facilities
are required to select and implement
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36751
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if ‘‘There are migratory and/or
sport or commercial species of
impingement concern to the Director or
any fishery management agency(ies),
which pass through the hydraulic zone
of influence of the cooling water intake
structure.’’ The language should have
specified that additional design and
construction technologies or operational
measures are required if, ‘‘Based on
information submitted by any fishery
management agency(ies) or other
relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure.’’ Paragraphs (b)(4)(iii)
and (c)(3)(iii) require a facility to select
and implement design and construction
technologies or operational measures for
minimizing impingement mortality if ‘‘It
is determined by the Director or any
fishery management agency(ies) * * *.’’
The language should have specified that
those technologies are required if, ‘‘It is
determined by the Director, based on
information submitted by any fishery
management agency(ies) or other
relevant information, that * * *.’’ The
fifth provision, paragraph (b)(5)(ii),
addresses circumstances where design
and construction technologies or
operational measures are required for
minimizing entrainment of entrainable
life stages of fish and shellfish. The
language used in this provision was
similar to that in paragraphs (b)(4)(ii),
(b)(4)(iii), (c)(3)(ii), and (c)(3)(iii) and
therefore required similar corrections.
All of these revisions are necessary
because the decision of what to require
under section 316(b) of the CWA
belongs to the Director. Although EPA
did not intend to delegate the
decisionmaking to another agency, the
Director may obtain information from
another agency to make a decision.
Therefore, today’s action amends the
requirements at 40 CFR 125.84(b)(4)(ii),
(b)(4)(iii), (b)(5)(ii), (c)(3)(ii), and
(c)(3)(iii) to reflect the intent that the
information of another agency informs
the decision of the Director.
C. Deletion of Inappropriate Cross
Reference in the Alternative
Requirements Section
The third issue relates to drafting
errors in the alternative requirements
section of the rule. The regulation at 40
CFR 125.85 in paragraphs (a)(2) and (3)
currently refers to local water resources
‘‘not addressed under § 125.84(d)(1)(i)’’
intending to refer to local water resource
issues other than impingement or
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entrainment. Cross-referencing this
other section of the regulations is not
technically correct, because subsection
(d) of § 125.84 is part of Track II while
the alternative requirements provision
applies to either Track I or Track II.
Therefore, this action deletes the
reference to 40 CFR 125.84(d)(1)(i) and
substitutes language referencing
‘‘significant adverse impacts on local
water resources other than impingement
or entrainment.’’ Similarly, to eliminate
any uncertainty regarding applicability
of the alternative requirements
provision at 40 CFR 125.85 to the Track
II performance requirements at 40 CFR
125.84(d), this action deletes 40 CFR
125.84(d)(1)(ii) because it is
unnecessary and confusing. In addition,
the paragraph 40 CFR 125.84(d)(1) and
the subparagraph (d)(1)(i) have been
combined with some modifications
because a separate subparagraph is no
longer needed.
IV. Response to Comments
EPA received one set of comments on
the direct final and companion
proposed rules published on December
26, 2002, (67 FR 78948 and 78956) from
Riverkeeper, Inc. on behalf of 16
environmental organizations. This
group of environmental organizations
are petitioners in a suit filed against
EPA in the U.S. Court of Appeals in the
Second Circuit (Case No. 02–4005)
challenging EPA’s final Phase I rule for
new facilities. Riverkeeper, et al.
submitted as their comments the brief
that they filed in their challenge to the
December 18, 2001, Phase I final
regulations (Brief for the Environmental
Petitioners, December 4, 2002).
Riverkeeper et al.’s comments did not
specifically object to the technical
changes in the direct final rule; rather,
they objected to the underlying
provisions in the final Phase I rule that
are related to the technical corrections.
Riverkeeper et al. filed their brief to
preserve their ability to have the
objectionable provisions remanded to
EPA should they succeed in their
challenge of the Phase I rule. EPA also
understands that Riverkeeper et al.
intend to consolidate any petition for
review of this rule with the pending
litigation in the Second Circuit. EPA
believes it responded to Riverkeeper et
al.’s comments articulated in their brief
in EPA’s brief filed in the Second
Circuit on April 4, 2003, and in the
record for the Phase I rule. Thus, EPA
includes in the record for this rule the
brief it filed in the Second Circuit in the
Phase I litigation, all other briefs filed in
that litigation, and the entire public
record on the National Pollutant
Discharge Elimination System:
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Regulations Addressing Cooling Water
Intake Structures for New Facilities,
Final Rule (Docket ID W–00–03).
V. Statutory and Executive Orders
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866, [58 FR
51735, October 4, 1993] the Agency
must determine whether the regulatory
action is ‘‘significant’’ and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector or the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
It has been determined that this rule
is not a ‘‘significant regulatory action’’
under the terms of Executive Order
12866 and therefore is not subject to
OMB review.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. This rule
merely makes three minor technical
revisions to the December 2001 Phase I
final regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
projected, and would not reduce the
level of environmental protection
projected.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
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needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
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 are listed in 40 CFR part 9
and 48 CFR chapter 15.
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.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
based on the Small Business
Administration’s size standards; (2) a
small governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impact of today’s final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final rule does not substantively
change the December 18, 2001, final
rule for new facilities (66 FR 65256), nor
does it impose a significant economic
impact on a substantial number of small
entities. This rule merely makes three
minor technical revisions to the
December 2001 rule. These minor
changes will clarify the Agency’s intent
on velocity monitoring, authority to
require additional design and
construction technologies, and
procedures for seeking less stringent
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alternative requirements. It would affect
the same facilities as the December 2001
rule, impose no additional costs or
result in additional benefits beyond
those already projected, and would not
reduce the level of environmental
protection projected.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA has determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector, in any one year. This
rule merely makes three minor technical
revisions to the December 2001 Phase I
final regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
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monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
would have no additional costs or
benefits beyond those already projected,
and would not reduce the level of
environmental protection projected.
Thus, today’s rule is not subject to the
requirements of section 202 and 205 of
the UMRA. For the same reasons, EPA
has also determined that this rule
contains no regulatory requirements that
might significantly or uniquely affect
small governments. Thus, today’s rule is
not subject to the requirements of
section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that 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.’’
This 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
Executive Order 13132. This rule merely
makes three minor technical revisions to
the December 2001 Phase I final
regulations for new facilities. These
minor changes will clarify the Agency’s
intent on velocity monitoring, authority
to require additional design and
construction technologies, and
procedures for seeking less stringent
alternative requirements. It would affect
the same facilities as the December 2001
rule, impose no additional costs or
result in additional benefits beyond
those already projected, and would not
reduce the level of environmental
protection projected. Thus Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
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67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ ‘‘Policies that have Tribal
implications’’ is defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
one or more Indian Tribes, on the
relationship between the Federal
government and the Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
government and Indian Tribes.’’
This final rule does not have Tribal
implications. It will not have substantial
direct effects on Tribal governments, on
the relationship between the Federal
government and Indian Tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian Tribes, as
specified in Executive Order 13175.
This rule merely makes three minor
technical revisions to the final
regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
projected, and would not reduce the
level of environmental protection
projected. This rule will not affect
Tribes in any way in the foreseeable
future. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 (62 FR 19885,
April 23, 1997) applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe might have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. This final
rule is not economically significant as
defined under Executive Order 12866
and does not concern an environmental
health or safety risk that EPA has reason
to believe may have a disproportionate
effect on children. This rule merely
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Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
makes three minor technical revisions to
the final regulations for cooling water
intake structures. These minor changes
will clarify the Agency’s intent on
velocity monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
the additional benefits beyond those
already projected, and would not reduce
the level of environmental protection
projected. Therefore, it is not subject to
Executive Order 13045.
H. Executive Order 13211 (Energy
Effects)
This final rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act (‘‘NTTAA’’) of 1995 (Public Law
104–113, Section12(d), 15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
final rule does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 requires that,
to the greatest extent practicable and
permitted by law, each Federal agency
must make achieving environmental
justice part of its mission. Executive
Order 12898 provides that each Federal
agency must conduct its programs,
policies, and activities that substantially
affect human health or the environment
in a manner that ensures that such
programs, policies, and activities do not
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have the effect of excluding persons
(including populations) from
participation in, denying persons
(including populations) the benefits of,
or subjecting persons (including
populations) to discrimination under
such programs, policies, and activities
because of their race, color, or national
origin.
EPA does not expect that this final
rule would have an exclusionary effect,
deny persons the benefit of the NPDES
program or subject persons to
discrimination because of their race,
color, or national origin. This rule
merely makes three minor technical
revisions to the final regulations for
cooling water intake structures. These
minor changes will clarify the Agency’s
intent on velocity monitoring, authority
to require additional design and
construction technologies, and
procedures for seeking less stringent
alternative requirements. It would affect
the same facilities as the December 2001
rule, would have no additional costs or
benefits beyond those already projected,
and would not reduce the level of
environmental protection projected.
K. Executive Order 13158: Marine
Protected Areas
Executive Order 13158 (65 FR 34909,
May 31, 2000) requires EPA to
‘‘expeditiously propose new sciencebased regulations, as necessary, to
ensure appropriate levels of protection
for the marine environment.’’ EPA may
take action to enhance or expand
protection of existing marine protected
areas and to establish or recommend, as
appropriate, new marine protected
areas. The purpose of the Executive
Order is to protect the significant
natural and cultural resources within
the marine environment, which means
‘‘’those areas of coastal and ocean
waters, the Great Lakes and their
connecting waters, and submerged lands
thereunder, over which the United
States exercises jurisdiction, consistent
with international law.’’
Today’s final rule will not enhance or
expand protection nor reduce the level
of environmental protection of existing
marine protected areas. This rule merely
makes three minor technical revisions to
the December 2001 Phase I final
regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
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projected, and would not reduce the
level of environmental protection
projected.
L. Plain Language Directive
Executive Order 12866 encourages
agencies to write all rules in plain
language. EPA has written this final rule
in plain language to make this rule and
the final rule at 66 FR 65256, December
18, 2001 easier to understand.
M. 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 not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective July 21, 2003.
List of Subjects in 40 CFR Part 125
Environmental protection, Cooling
water intake structures, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control.
Dated: June 13, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the
preamble, chapter I of title 40 of the Code
of Federal Regulations is amended as
follows:
■
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 125
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.
§ 125.83
[Amended]
2. Section 125.83 is amended by
removing the definition for ‘‘Minimum
ambient source water surface elevation.’’
■ 3. Section 125.84 is amended by
revising paragraphs (b)(4)(ii), (b)(4)(iii),
(b)(5)(ii), (c)(3)(ii), (c)(3)(iii), and (d)(1) to
read as follows:
■
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§ 125.84 As an owner or operator of a new
facility, what must I do to comply with this
subpart?
*
*
*
*
*
(b) * * *
(4) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director,
based on information submitted by any
fishery management agency(ies) or other
relevant information, that the proposed
facility, after meeting the technologybased performance requirements in
paragraphs (b)(1), (2), and (3) of this
section, would still contribute
unacceptable stress to the protected
species, critical habitat of those species,
or species of concern;
(5) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
or would be undesirable cumulative
stressors affecting entrainable life stages
of species of concern to the Director and
the Director determines that the
proposed facility, after meeting the
technology-based performance
requirements in paragraphs (b)(1), (2),
and (3) of this section, would still
contribute unacceptable stress to the
protected species , critical habitat of
those species, or these species of
concern;
*
*
*
*
*
(c) * * *
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(3) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director,
based on information submitted by any
fishery management agency(ies) or other
relevant information, that the proposed
facility, after meeting the technologybased performance requirements in
paragraphs (c)(1) and (2) of this section,
would still contribute unacceptable
stress to the protected species, critical
habitat of those species, or species of
concern;
*
*
*
*
*
(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 comparable
level to that which you would achieve
were you to implement the
requirements of paragraphs (b)(1) and
(2) of this section. This demonstration
must include a showing that the impacts
to fish and shellfish, including
important forage and predator species,
within the watershed will be
comparable to those which would result
if you were to implement the
requirements of paragraphs (b)(1) and
(2) of this section.
This showing may include
consideration of impacts other than
impingement mortality and
entrainment, including measures that
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36755
will result in increases in fish and
shellfish, but it must demonstrate
comparable performance for species that
the Director identifies as species of
concern. In identifying such species, the
Director may consider information
provided by any fishery management
agency(ies) along with data and
information from other sources.
*
*
*
*
*
■ 4. Section 125.85 is amended by
revising paragraphs (a)(2) and (3) to read
as follows:
§ 125.85 May alternative requirements be
authorized?
(a) * * *
(2) The Director determines that data
specific to the facility indicate that
compliance with the requirement at
issue would result in compliance costs
wholly out of proportion to the costs
EPA considered in establishing the
requirement 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;
(3) The alternative requirement
requested is no less stringent than
justified by the wholly out of proportion
cost or the 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; and
*
*
*
*
*
[FR Doc. 03–15518 Filed 6–18–03; 8:45 am]
BILLING CODE 6560–50–P
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Appendix 3 to The Preamble—Examples of Areas and Volumes Defined in Estuaries or Tidal Rivers By The Tidal
Excursion Distance
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Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
BILLING CODE 6560–50–C
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25)
65337
Construction Technology Plan as
required in § 125.86(b)(4) of this chapter
should be revised. This supporting
*
*
*
*
*
(r) Applications for facilities with
information must include existing data
cooling water intake structures—(1) New (if they are available). However, you
facilities with new or modified cooling
may supplement the data using newly
PART 9—OMB APPROVALS UNDER
water intake structures. New facilities
conducted field studies if you choose to
THE PAPERWORK REDUCTION ACT
do so. The information you submit must
with cooling water intake structures as
include:
defined in part 125, subpart I, of this
1. The authority citation for part 9
(i) A list of the data in paragraphs
chapter must report the information
continues to read as follows:
(r)(4)(ii) through (vi) of this section that
required under paragraphs (r)(2), (3),
are not available and efforts made to
Authority: 7 U.S.C. 135 et seq., 136–136y;
and (4) of this section and § 125.86 of
15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671, this chapter. Requests for alternative
identify sources of the data;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
(ii) A list of species (or relevant taxa)
requirements under § 125.85 of this
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318,
for all life stages and their relative
chapter must be submitted with your
1321, 1326, 1330, 1342, 1344, 1345 (d) and
abundance in the vicinity of the cooling
permit application.
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
water intake structure;
(2)
Source
water
physical
data.
These
1971–1975 Comp. p. 973; 42 U.S.C. 241,
(iii) Identification of the species and
include:
242b, 243, 246, 300f, 300g, 300g–1, 300g–2,
life stages that would be most
(i) A narrative description and scaled
300g–3, 300g–4, 300g–5, 300g–6, 300j–1,
susceptible to impingement and
drawings showing the physical
300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,
entrainment. Species evaluated should
configuration of all source water bodies
6901–6992k, 7401–7671q, 7542, 9601–9657,
include the forage base as well as those
11023, 11048.
used by your facility, including areal
most important in terms of significance
dimensions, depths, salinity and
2. In § 9.1 the table is amended by
to commercial and recreational
temperature regimes, and other
adding entries in numerical order under documentation that supports your
fisheries;
the indicated heading to read as follows: determination of the water body type
(iv) Identification and evaluation of
the
primary period of reproduction,
§ 9.1 OMB approvals under the Paperwork where each cooling water intake
larval recruitment, and period of peak
structure
is
located;
Reduction Act.
(ii) Identification and characterization abundance for relevant taxa;
*
*
*
*
*
(v) Data representative of the seasonal
of the source waterbody’s hydrological
and
daily activities (e.g., feeding and
and geomorphological features, as well
OMB
water column migration) of biological
40 CFR citation
Control No. as the methods you used to conduct any
organisms in the vicinity of the cooling
physical studies to determine your
water intake structure;
intake’s area of influence within the
(vi) Identification of all threatened,
*
*
*
*
*
waterbody and the results of such
endangered, and other protected species
studies; and
EPA Administered Permit Programs: The
that might be susceptible to
(iii) Locational maps.
National Pollutant Discharge Elimination
impingement and entrainment at your
(3) Cooling water intake structure
System
cooling water intake structures;
data. These include:
(vii) Documentation of any public
(i) A narrative description of the
participation or consultation with
configuration of each of your cooling
*
*
*
*
*
Federal or State agencies undertaken in
water intake structures and where it is
development of the plan; and
122.21(r) ...................................
2040–0241 located in the water body and in the
(viii) If you supplement the
water column;
information
requested in paragraph
(ii) Latitude and longitude in degrees,
*
*
*
*
*
(r)(4)(i) of this section with data
minutes,
and
seconds
for
each
of
your
Criteria and Standards for the National
collected using field studies, supporting
cooling water intake structures;
Pollutant Discharge Elimination System
documentation for the Source Water
(iii) A narrative description of the
Baseline Biological Characterization
operation of each of your cooling water
*
*
*
*
*
must include a description of all
125.86 .......................................
2040–0241 intake structures, including design
methods and quality assurance
125.87 .......................................
2040–0241 intake flows, daily hours of operation,
procedures for sampling, and data
125.88 .......................................
2040–0241 number of days of the year in operation
analysis including a description of the
125.89 .......................................
2040–0241 and seasonal changes, if applicable;
study area; taxonomic identification of
(iv) A flow distribution and water
*
*
*
*
*
sampled and evaluated biological
balance diagram that includes all
assemblages (including all life stages of
sources of water to the facility,
recirculating flows, and discharges; and fish and shellfish); and sampling and
PART 122—EPA ADMINISTERED
data analysis methods. The sampling
(v) Engineering drawings of the
PERMIT PROGRAMS: THE NATIONAL
and/or data analysis methods you use
cooling
water
intake
structure.
POLLUTANT DISCHARGE
must be appropriate for a quantitative
(4) Source water baseline biological
ELIMINATION SYSTEM
characterization data. This information survey and based on consideration of
is required to characterize the biological methods used in other biological studies
1. The authority citation for part 122
community in the vicinity of the cooling performed within the same source water
continues to read as follows:
body. The study area should include, at
water intake structure and to
Authority: The Clean Water Act, 33 U.S.C.
a minimum, the area of influence of the
characterize
the
operation
of
the
cooling
1251 et seq.
cooling water intake structure.
water intake structures. The Director
2. Section 122.21 is amended by
3. Section 122.44 is amended by
may also use this information in
adding a new paragraph (r) to read as
subsequent permit renewal proceedings adding paragraph (b)(3) to read as
follows:
follows:
to determine if your Design and
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is amended
as follows:
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65338
Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
§ 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§ 123.25).
*
*
*
*
*
(b) * * *
(3) Requirements applicable to
cooling water intake structures at new
facilities under section 316(b) of the
CWA, in accordance with part 125,
subpart I, of this chapter.
*
*
*
*
*
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Section 123.25 is amended by
revising paragraph (a)(36) to read as
follows:
§ 123.25
Requirements for permitting.
Subpart I—Requirements Applicable to
Cooling Water Intake Structures for New
Facilities Under Section 316(b) of the Act
Sec.
125.80 What are the purpose and scope of
this subpart?
125.81 Who is subject to this subpart?
125.82 When must I comply with this
subpart?
125.83 What special definitions apply to
this subpart?
125.84 As an owner or operator of a new
facility, what must I do to comply with
this subpart?
125.85 May alternative requirements be
authorized?
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?
125.87 As an owner or operator of a new
facility, must I perform monitoring?
125.88 As an owner or operator of a new
facility, must I keep records and report?
125.89 As the Director, what must I do to
comply with the requirements of this
subpart?
(a) * * *
(36) Subparts A, B, D, H, and I of part
125 of this chapter;
*
*
*
*
*
Subpart I—Requirements Applicable to
Cooling Water Intake Structures for
New Facilities Under Section 316(b) of
the Act
PART 124—PROCEDURES FOR
DECISIONMAKING
§ 125.80 What are the purpose and scope
of this subpart?
1. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
2. Section 124.10 is amended by
redesignating paragraph (d)(1)(ix) as
paragraph (d)(1)(x) and adding a new
paragraph (d)(1)(ix) to read as follows:
§ 124.10 Public notice of permit actions
and public comment period.
*
*
*
*
*
(d) * * *
(1) * * *
(ix) Requirements applicable to
cooling water intake structures at new
facilities under section 316(b) of the
CWA, in accordance with part 125,
subpart I, of this chapter.
*
*
*
*
*
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 125
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.
2. Remove the existing heading for
subpart I and add new subpart I to part
125 to read as follows:
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(a) This subpart establishes
requirements that apply to the location,
design, construction, and capacity of
cooling water intake structures at new
facilities. The purpose of these
requirements is to establish the best
technology available for minimizing
adverse environmental impact
associated with the use of cooling water
intake structures. These requirements
are implemented through National
Pollutant Discharge Elimination System
(NPDES) permits issued under section
402 of the Clean Water Act (CWA).
(b) This subpart implements section
316(b) of the CWA for new facilities.
Section 316(b) of the CWA provides that
any standard established pursuant to
sections 301 or 306 of the CWA 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.
(c) New facilities that do not meet the
threshold requirements regarding
amount of water withdrawn or
percentage of water withdrawn for
cooling water purposes in § 125.81(a)
must meet requirements determined on
a case-by-case, best professional
judgement (BPJ) basis.
(d) Nothing in this subpart shall be
construed to preclude or deny the right
of any State or political subdivision of
a State or any interstate agency under
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section 510 of the CWA to adopt or
enforce any requirement with respect to
control or abatement of pollution that is
more stringent than those required by
Federal law.
§ 125.81
Who is subject to this subpart?
(a) This subpart applies to a new
facility if it:
(1) Is a point source that uses or
proposes to use a cooling water intake
structure;
(2) Has at least one cooling water
intake structure that uses at least 25
percent of the water it withdraws for
cooling purposes as specified in
paragraph (c) of this section; and
(3) Has a design intake flow greater
than two (2) million gallons per day
(MGD).
(b) Use of a cooling water intake
structure includes obtaining cooling
water by any sort of contract or
arrangement with an independent
supplier (or multiple suppliers) of
cooling water if the supplier or
suppliers withdraw(s) water from waters
of the United States. Use of cooling
water does not include obtaining
cooling water from a public water
system or the use of treated effluent that
otherwise would be discharged to a
water of the U.S. This provision is
intended to prevent circumvention of
these requirements by creating
arrangements to receive cooling water
from an entity that is not itself a point
source.
(c) The threshold requirement that at
least 25 percent of water withdrawn be
used for cooling purposes must be
measured on an average monthly basis.
A new facility meets the 25 percent
cooling water threshold if, based on the
new facility’s design, any monthly
average over a year for the percentage of
cooling water withdrawn is expected to
equal or exceed 25 percent of the total
water withdrawn.
(d) This subpart does not apply to
facilities that employ cooling water
intake structures in the offshore and
coastal subcategories of the oil and gas
extraction point source category as
defined under 40 CFR 435.10 and 40
CFR 435.40.
§ 125.82 When must I comply with this
subpart?
You must comply with this subpart
when an NPDES permit containing
requirements consistent with this
subpart is issued to you.
§ 125.83 What special definitions apply to
this subpart?
The following special definitions
apply to this subpart:
Annual mean flow means the average
of daily flows over a calendar year.
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Historical data (up to 10 years) must be
used where available.
Closed-cycle recirculating system
means a system designed, using
minimized makeup and blowdown
flows, to withdraw water from a natural
or other water source to support contact
and/or noncontact cooling uses within a
facility. The water is usually sent to a
cooling canal or channel, lake, pond, or
tower to allow waste heat to be
dissipated to the atmosphere and then is
returned to the system. (Some facilities
divert the waste heat to other process
operations.) New source water (make-up
water) is added to the system to
replenish losses that have occurred due
to blowdown, drift, and evaporation.
Cooling water means water used for
contact or noncontact cooling, including
water used for equipment cooling,
evaporative cooling tower makeup, and
dilution of effluent heat content. The
intended use of the cooling water is to
absorb waste heat rejected from the
process or processes used, or from
auxiliary operations on the facility’s
premises. Cooling water that is used in
a manufacturing process either before or
after it is used for cooling is considered
process water for the purposes of
calculating the percentage of a new
facility’s intake flow that is used for
cooling purposes in § 125.81(c).
Cooling water intake structure means
the total physical structure and any
associated constructed waterways used
to withdraw cooling water from waters
of the U.S. The cooling water intake
structure extends from the point at
which water is withdrawn from the
surface water source up to, and
including, the intake pumps.
Design intake flow means the value
assigned (during the facility’s design) to
the total volume of water withdrawn
from a source water body over a specific
time period.
Design intake velocity means the
value assigned (during the design of a
cooling water intake structure) to the
average speed at which intake water
passes through the open area of the
intake screen (or other device) against
which organisms might be impinged or
through which they might be entrained.
Entrainment means the incorporation
of all life stages of fish and shellfish
with intake water flow entering and
passing through a cooling water intake
structure and into a cooling water
system.
Estuary means a semi-enclosed body
of water that has a free connection with
open seas and within which the
seawater is measurably diluted with
fresh water derived from land drainage.
The salinity of an estuary exceeds 0.5
parts per thousand (by mass) but is
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typically less than 30 parts per thousand
(by mass).
Existing facility means any facility
that is not a new facility.
Freshwater river or stream means a
lotic (free-flowing) system that does not
receive significant inflows of water from
oceans or bays due to tidal action. For
the purposes of this rule, a flow-through
reservoir with a retention time of 7 days
or less will be considered a freshwater
river or stream.
Hydraulic zone of influence means
that portion of the source waterbody
hydraulically affected by the cooling
water intake structure withdrawal of
water.
Impingement means the entrapment
of all life stages of fish and shellfish on
the outer part of an intake structure or
against a screening device during
periods of intake water withdrawal.
Lake or reservoir means any inland
body of open water with some
minimum surface area free of rooted
vegetation and with an average
hydraulic retention time of more than 7
days. Lakes or reservoirs might be
natural water bodies or impounded
streams, usually fresh, surrounded by
land or by land and a man-made
retainer (e.g., a dam). Lakes or reservoirs
might be fed by rivers, streams, springs,
and/or local precipitation. Flow-through
reservoirs with an average hydraulic
retention time of 7 days or less should
be considered a freshwater river or
stream.
Maximize means to increase to the
greatest amount, extent, or degree
reasonably possible.
Minimum ambient source water
surface elevation means the elevation of
the 7Q10 flow for freshwater streams or
rivers; the conservation pool level for
lakes or reservoirs; or the mean low
tidal water level for estuaries or oceans.
The 7Q10 flow is the lowest average 7
consecutive day low flow with an
average frequency of one in 10 years
determined hydrologically. The
conservation pool is the minimum
depth of water needed in a reservoir to
ensure proper performance of the
system relying upon the reservoir. The
mean low tidal water level is the
average height of the low water over at
least 19 years.
Minimize means to reduce to the
smallest amount, extent, or degree
reasonably possible.
Natural thermal stratification means
the naturally-occurring division of a
waterbody into horizontal layers of
differing densities as a result of
variations in temperature at different
depths.
New facility means any building,
structure, facility, or installation that
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meets the definition of a ‘‘new source’’
or ‘‘new discharger’’ in 40 CFR 122.2
and 122.29(b)(1), (2), and (4) and is a
greenfield or stand-alone facility;
commences construction after January
17, 2002; and uses either a newly
constructed cooling water intake
structure, or an existing cooling water
intake structure whose design capacity
is increased to accommodate the intake
of additional cooling water. New
facilities include only ‘‘greenfield’’ and
‘‘stand-alone’’ facilities. A greenfield
facility is a facility that is constructed at
a site at which no other source is
located, or that totally replaces the
process or production equipment at an
existing facility (see 40 CFR
122.29(b)(1)(i) and (ii)). A stand-alone
facility is a new, separate facility that is
constructed on property where an
existing facility is located and whose
processes are substantially independent
of the existing facility at the same site
(see 40 CFR 122.29(b)(1)(iii)). New
facility does not include new units that
are added to a facility for purposes of
the same general industrial operation
(for example, a new peaking unit at an
electrical generating station).
(1) Examples of ‘‘new facilities’’
include, but are not limited to: the
following scenarios:
(i) A new facility is constructed on a
site that has never been used for
industrial or commercial activity. It has
a new cooling water intake structure for
its own use.
(ii) A facility is demolished and
another facility is constructed in its
place. The newly-constructed facility
uses the original facility’s cooling water
intake structure, but modifies it to
increase the design capacity to
accommodate the intake of additional
cooling water.
(iii) A facility is constructed on the
same property as an existing facility, but
is a separate and independent industrial
operation. The cooling water intake
structure used by the original facility is
modified by constructing a new intake
bay for the use of the newly constructed
facility or is otherwise modified to
increase the intake capacity for the new
facility.
(2) Examples of facilities that would
not be considered a ‘‘new facility’’
include, but are not limited to, the
following scenarios:
(i) A facility in commercial or
industrial operation is modified and
either continues to use its original
cooling water intake structure or uses a
new or modified cooling water intake
structure.
(ii) A facility has an existing intake
structure. Another facility (a separate
and independent industrial operation),
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is constructed on the same property and
connects to the facility’s cooling water
intake structure behind the intake
pumps, and the design capacity of the
cooling water intake structure has not
been increased. This facility would not
be considered a ‘‘new facility’’ even if
routine maintenance or repairs that do
not increase the design capacity were
performed on the intake structure.
Ocean means marine open coastal
waters with a salinity greater than or
equal to 30 parts per thousand (by
mass).
Source water means the water body
(waters of the U.S.) from which the
cooling water is withdrawn.
Thermocline means the middle layer
of a thermally stratified lake or
reservoir. In this layer, there is a rapid
decrease in temperatures.
Tidal excursion means the horizontal
distance along the estuary or tidal river
that a particle moves during one tidal
cycle of ebb and flow.
Tidal river means the most seaward
reach of a river or stream where the
salinity is typically less than or equal to
0.5 parts per thousand (by mass) at a
time of annual low flow and whose
surface elevation responds to the effects
of coastal lunar tides.
§ 125.84 As an owner or operator of a new
facility, what must I do to comply with this
subpart?
(a)(1) The owner or operator of a new
facility must comply with either:
(i) Track I in paragraph (b) or (c) of
this section; or
(ii) Track II in paragraph (d) of this
section.
(2) In addition to meeting the
requirements in paragraph (b), (c), or (d)
of this section, the owner or operator of
a new facility may be required to
comply with paragraph (e) of this
section.
(b) Track I requirements for new
facilities that withdraw equal to or
greater than 10 MGD. You must comply
with all of the following requirements:
(1) You must reduce your intake flow,
at a minimum, to a level commensurate
with that which can be attained by a
closed-cycle recirculating cooling water
system;
(2) You must design and construct
each cooling water intake structure at
your facility to a maximum throughscreen design intake velocity of 0.5
ft/s;
(3) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meets the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
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the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level;
(4) You must select and implement
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are migratory and/or sport
or commercial species of impingement
concern to the Director or any fishery
management agency(ies), which pass
through the hydraulic zone of influence
of the cooling water intake structure; or
(iii) It is determined by the Director or
any fishery management agency(ies) that
the proposed facility, after meeting the
technology-based performance
requirements in paragraphs (b)(1), (2),
and (3) of this section, would still
contribute unacceptable stress to the
protected species, critical habitat of
those species, or species of concern;
(5) You must select and implement
design and construction technologies or
operational measures for minimizing
entrainment of entrainable life stages of
fish and shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are or would be undesirable
cumulative stressors affecting
entrainable life stages of species of
concern to the Director or any fishery
management agency(ies), and it is
determined by the Director or any
fishery management agency(ies) that the
proposed facility, after meeting the
technology-based performance
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requirements in paragraphs (b)(1), (2),
and (3) of this section, would contribute
unacceptable stress to these species of
concern;
(6) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(b);
(7) You must implement the
monitoring requirements specified in
§ 125.87;
(8) You must implement the recordkeeping requirements specified in
§ 125.88.
(c) Track I requirements for new
facilities that withdraw equal to or
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:
(1) You must design and construct
each cooling water intake structure at
your facility to a maximum throughscreen design intake velocity of 0.5
ft/s;
(2) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meets the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level;
(3) You must select and implement
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if:
(i) There are threatened or endangered
or otherwise protected federal, state, or
tribal species, or critical habitat for
these species, within the hydraulic zone
of influence of the cooling water intake
structure; or
(ii) There are migratory and/or sport
or commercial species of impingement
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concern to the Director or any fishery
management agency(ies), which pass
through the hydraulic zone of influence
of the cooling water intake structure; or
(iii) It is determined by the Director or
any fishery management agency(ies) that
the proposed facility, after meeting the
technology-based performance
requirements in paragraphs (c)(1) and
(2) of this section, would still contribute
unacceptable stress to the protected
species, critical habitat of those species,
or species of concern;
(4) You must select and implement
design and construction technologies or
operational measures for minimizing
entrainment of entrainable life stages of
fish and shellfish;
(5) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(b)(2), (3), and (4);
(6) You must implement the
monitoring requirements specified in
§ 125.87;
(7) You must implement the
recordkeeping requirements specified in
§ 125.88.
(d) Track II. The owner or operator of
a new facility that chooses to comply
under Track II must comply with the
following requirements:
(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 comparable
level to that which you would achieve
were you to implement the
requirements of paragraphs (b)(1) and
(2) of this section.
(i) Except as specified in paragraph
(d)(1)(ii) 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. This showing may
include consideration of impacts other
than impingement mortality and
entrainment, including measures that
will result in increases in fish and
shellfish, but it must demonstrate
comparable performance for species that
the Director, in consultation with
national, state or tribal fishery
management agencies with
responsibility for fisheries potentially
affected by your cooling water intake
structure, identifies as species of
concern.
(ii) In cases where air emissions and/
or energy impacts that would result
from meeting the requirements of
paragraphs (b)(1) and (2) of this section
would result in significant adverse
impacts on local air quality, significant
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adverse impact on local water resources
not addressed under paragraph (d)(1)(i)
of this section, or significant adverse
impact on local energy markets, you
may request alternative requirements
under § 125.85.
(2) You must design and construct
your cooling water intake structure such
that the total design intake flow from all
cooling water intake structures at your
facility meet the following
requirements:
(i) For cooling water intake structures
located in a freshwater river or stream,
the total design intake flow must be no
greater than five (5) percent of the
source water annual mean flow;
(ii) For cooling water intake structures
located in a lake or reservoir, the total
design intake flow must not disrupt the
natural thermal stratification or turnover
pattern (where present) of the source
water except in cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish by any
fishery management agency(ies);
(iii) For cooling water intake
structures located in an estuary or tidal
river, the total design intake flow over
one tidal cycle of ebb and flow must be
no greater than one (1) percent of the
volume of the water column within the
area centered about the opening of the
intake with a diameter defined by the
distance of one tidal excursion at the
mean low water level.
(3) You must submit the application
information required in 40 CFR
122.21(r) and § 125.86(c).
(4) You must implement the
monitoring requirements specified in
§ 125.87.
(5) You must implement the recordkeeping requirements specified in
§ 125.88.
(e) You must comply with any more
stringent requirements relating to the
location, design, construction, and
capacity of a cooling water intake
structure or monitoring requirements at
a new facility that the Director deems
are reasonably necessary to comply with
any provision of state law, including
compliance with applicable state water
quality standards (including designated
uses, criteria, and antidegradation
requirements).
§ 125.85 May alternative requirements be
authorized?
(a) Any interested person may request
that alternative requirements less
stringent than those specified in
§ 125.84(a) through (e) be imposed in
the permit. The Director may establish
alternative requirements less stringent
than the requirements of § 125.84(a)
through (e) only if:
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(1) There is an applicable requirement
under § 125.84(a) through (e);
(2) The Director determines that data
specific to the facility indicate that
compliance with the requirement at
issue would result in compliance costs
wholly out of proportion to those EPA
considered in establishing the
requirement at issue or would result in
significant adverse impacts on local air
quality, significant adverse impacts on
local water resources not addressed
under § 125.84(d)(1)(i), or significant
adverse impacts on local energy
markets;
(3) The alternative requirement
requested is no less stringent than
justified by the wholly out of proportion
cost or the significant adverse impacts
on local air quality, significant adverse
impacts on local water resources not
addressed under § 125.84(d)(1)(i), or
significant adverse impacts on local
energy markets; and
(4) The alternative requirement will
ensure compliance with other
applicable provisions of the Clean Water
Act and any applicable requirement of
state law.
(b) The burden is on the person
requesting the alternative requirement
to demonstrate that alternative
requirements should be authorized.
§ 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) As an owner or operator of a
new facility, you must submit to the
Director a statement that you intend to
comply with either:
(i) The Track I requirements for new
facilities that withdraw equal to or
greater than 10 MGD in § 125.84(b);
(ii) The Track I requirements for new
facilities that withdraw equal to or
greater than 2 MGD and less than 10
MGD in § 125.84(c);
(iii) The requirements for Track II in
§ 125.84 (d).
(2) You must also submit the
application information required by 40
CFR 122.21(r) and the information
required in either paragraph (b) of this
section for Track I or paragraph (c) of
this section for Track II when you apply
for a new or reissued NPDES permit in
accordance with 40 CFR 122.21.
(b) Track I application requirements.
To demonstrate compliance with Track
I requirements in § 125.84(b) or (c), you
must collect and submit to the Director
the information in paragraphs (b)(1)
through (4) of this section.
(1) Flow reduction information. If you
must comply with the flow reduction
requirements in § 125.84(b)(1), you must
submit the following information to the
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Director to demonstrate that you have
reduced your flow to a level
commensurate with that which can be
attained by a closed-cycle recirculating
cooling water system:
(i) A narrative description of your
system that has been designed to reduce
your intake flow to a level
commensurate with that which can be
attained by a closed-cycle recirculating
cooling water system and any
engineering calculations, including
documentation demonstrating that your
make-up and blowdown flows have
been minimized; and
(ii) If the flow reduction requirement
is met entirely, or in part, by reusing or
recycling water withdrawn for cooling
purposes in subsequent industrial
processes, you must provide
documentation that the amount of
cooling water that is not reused or
recycled has been minimized.
(2) Velocity information. You must
submit the following information to the
Director to demonstrate that you are
complying with the requirement to meet
a maximum through-screen design
intake velocity of no more than 0.5 ft/
s at each cooling water intake structure
as required in § 125.84(b)(2) and (c)(1):
(i) A narrative description of the
design, structure, equipment, and
operation used to meet the velocity
requirement; and
(ii) Design calculations showing that
the velocity requirement will be met at
minimum ambient source water surface
elevations (based on best professional
judgement using available hydrological
data) and maximum head loss across the
screens or other device.
(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) and
(c)(2):
(i) If your cooling water intake
structure is located in a freshwater river
or stream, you must provide the annual
mean flow and any supporting
documentation and engineering
calculations to show that your cooling
water intake structure meets the flow
requirements;
(ii) If your cooling water intake
structure is located in an estuary or tidal
river, you must provide the mean low
water tidal excursion distance and any
supporting documentation and
engineering calculations to show that
your cooling water intake structure
facility meets the flow requirements;
and
(iii) If your cooling water intake
structure is located in a lake or
reservoir, you must provide a narrative
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description of the water body thermal
stratification, and any supporting
documentation and engineering
calculations to show that the natural
thermal stratification and turnover
pattern will not be disrupted by the total
design intake flow. In cases where the
disruption is determined to be
beneficial to the management of
fisheries for fish and shellfish you must
provide supporting documentation and
include a written concurrence from any
fisheries management agency(ies) with
responsibility for fisheries potentially
affected by your cooling water intake
structure(s).
(4) Design and Construction
Technology Plan. To comply with
§ 125.84(b)(4) and (5), or (c)(3) and
(c)(4), you must submit to the Director
the following information in a Design
and Construction Technology Plan:
(i) Information to demonstrate
whether or not you meet the criteria in
§ 125.84(b)(4) and (b)(5), or (c)(3) and
(c)(4);
(ii) Delineation of the hydraulic zone
of influence for your cooling water
intake structure;
(iii) New facilities required to install
design and construction technologies
and/or operational measures must
develop a plan explaining the
technologies and measures you have
selected based on information collected
for the Source Water Biological Baseline
Characterization required by 40 CFR
122.21(r)(3). (Examples of appropriate
technologies include, but are not limited
to, wedgewire screens, fine mesh
screens, fish handling and return
systems, barrier nets, aquatic filter
barrier systems, etc. Examples of
appropriate operational measures
include, but are not limited to, seasonal
shutdowns or reductions in flow,
continuous operations of screens, etc.)
The plan must contain the following
information:
(A) A narrative description of the
design and operation of the design and
construction technologies, including
fish-handling and return systems, that
you will use to maximize the survival of
those species expected to be most
susceptible to impingement. Provide
species-specific information that
demonstrates the efficacy of the
technology;
(B) A narrative description of the
design and operation of the design and
construction technologies that you will
use to minimize entrainment of those
species expected to be the most
susceptible to entrainment. Provide
species-specific information that
demonstrates the efficacy of the
technology; and
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(C) Design calculations, drawings, and
estimates to support the descriptions
provided in paragraphs (b)(4)(iii)(A) and
(B) of this section.
(c) Application requirements for
Track II. If you have chosen to comply
with the requirements of Track II in
§ 125.84(d) you must collect and submit
the following information:
(1) Source waterbody flow
information. You must submit to the
Director the following information to
demonstrate that your cooling water
intake structure meets the source water
body requirements in § 125.84(d)(2):
(i) If your cooling water intake
structure is located in a freshwater river
or stream, you must provide the annual
mean flow and any supporting
documentation and engineering
calculations to show that your cooling
water intake structure meets the flow
requirements;
(ii) If your cooling water intake
structure is located in an estuary or tidal
river, you must provide the mean low
water tidal excursion distance and any
supporting documentation and
engineering calculations to show that
your cooling water intake structure
facility meets the flow requirements;
and
(iii) If your cooling water intake
structure is located in a lake or
reservoir, you must provide a narrative
description of the water body thermal
stratification, and any supporting
documentation and engineering
calculations to show that the natural
thermal stratification and thermal or
turnover pattern will not be disrupted
by the total design intake flow. In cases
where the disruption is determined to
be beneficial to the management of
fisheries for fish and shellfish you must
provide supporting documentation and
include a written concurrence from any
fisheries management agency(ies) with
responsibility for fisheries potentially
affected by your cooling water intake
structure(s).
(2) Track II Comprehensive
Demonstration Study. You must
perform and submit the results of a
Comprehensive Demonstration Study
(Study). This information is required to
characterize the source water baseline in
the vicinity of the cooling water intake
structure(s), characterize operation of
the cooling water intake(s), and to
confirm that the technology(ies)
proposed and/or implemented at your
cooling water intake structure reduce
the impacts to fish and shellfish to
levels comparable to those you would
achieve were you to implement the
requirements in § 125.84(b)(1)and (2) of
Track I. To meet the ‘‘comparable level’’
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requirement, you must demonstrate
that:
(i) You have 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); or
(ii) If your demonstration includes
consideration of impacts other than
impingement mortality and
entrainment, that the measures taken
will maintain the fish and shellfish in
the waterbody at a substantially similar
level to that which would be achieved
through § 125.84(b)(1) and (2); and
(iii) You must develop and submit a
plan to the Director containing a
proposal for how information will be
collected to support the study. The plan
must include:
(A) A description of the proposed
and/or implemented technology(ies) to
be evaluated in the Study;
(B) A list and description of any
historical studies characterizing the
physical and biological conditions in
the vicinity of the proposed or actual
intakes and their relevancy to the
proposed Study. If you propose to rely
on existing source water body data, it
must be no more than 5 years old, you
must demonstrate that the existing data
are sufficient to develop a scientifically
valid estimate of potential impingement
and entrainment impacts, and provide
documentation showing that the data
were collected using appropriate quality
assurance/quality control procedures;
(C) Any public participation or
consultation with Federal or State
agencies undertaken in developing the
plan; and
(D) A sampling plan for data that will
be collected using actual field studies in
the source water body. The sampling
plan must document all methods and
quality assurance procedures for
sampling, and data analysis. The
sampling and data analysis methods you
propose must be appropriate for a
quantitative survey and based on
consideration of methods used in other
studies performed in the source water
body. The sampling plan must include
a description of the study area
(including the area of influence of the
cooling water intake structure and at
least 100 meters beyond); taxonomic
identification of the sampled or
evaluated biological assemblages
(including all life stages of fish and
shellfish); and sampling and data
analysis methods; and
(iv) You must submit documentation
of the results of the Study to the
Director. Documentation of the results
of the Study must include:
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(A) Source Water Biological Study.
The Source Water Biological Study must
include:
(1) A taxonomic identification and
characterization of aquatic biological
resources including: a summary of
historical and contemporary aquatic
biological resources; determination and
description of the target populations of
concern (those species of fish and
shellfish and all life stages that are most
susceptible to impingement and
entrainment); and a description of the
abundance and temporal/spatial
characterization of the target
populations based on the collection of
multiple years of data to capture the
seasonal and daily activities (e.g.,
spawning, feeding and water column
migration) of all life stages of fish and
shellfish found in the vicinity of the
cooling water intake structure;
(2) An identification of all threatened
or endangered species that might be
susceptible to impingement and
entrainment by the proposed cooling
water intake structure(s); and
(3) A description of additional
chemical, water quality, and other
anthropogenic stresses on the source
waterbody.
(B) Evaluation of potential cooling
water intake structure effects. This
evaluation will include:
(1) Calculations of the reduction in
impingement mortality and entrainment
of all life stages of fish and shellfish that
would need to be achieved by the
technologies you have selected to
implement to meet requirements under
Track II. To do this, you must determine
the reduction in impingement mortality
and entrainment that would be achieved
by implementing the requirements of
§ 125.84(b)(1) and (2) of Track I at your
site.
(2) An engineering estimate of efficacy
for the proposed and/or implemented
technologies used to minimize
impingement mortality and entrainment
of all life stages of fish and shellfish and
maximize survival of impinged life
stages of fish and shellfish. You must
demonstrate that the technologies
reduce impingement mortality and
entrainment of all life stages of fish and
shellfish to a comparable level to that
which you would achieve were you to
implement the requirements in
§ 125.84(b)(1) and (2) of Track I. The
efficacy projection must include a sitespecific evaluation of technology(ies)
suitability for reducing impingement
mortality and entrainment based on the
results of the Source Water Biological
Study in paragraph (c)(2)(iv)(A) of this
section. Efficacy estimates may be
determined based on case studies that
have been conducted in the vicinity of
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65343
the cooling water intake structure and/
or site-specific technology prototype
studies.
(C) Evaluation of proposed restoration
measures. If you propose to use
restoration measures to maintain the
fish and shellfish as allowed in
§ 125.84(d)(1)(i), you must provide the
following information to the Director:
(1) Information and data to show that
you have coordinated with the
appropriate fishery management
agency(ies); and
(2) A plan that provides a list of the
measures you plan to implement and
how you will demonstrate and continue
to ensure that your restoration measures
will maintain the fish and shellfish in
the waterbody to a substantially similar
level to that which would be achieved
through § 125.84(b)(1) and (2).
(D) Verification monitoring plan. You
must include in the Study the following:
(1) A plan to conduct, at a minimum,
two years of monitoring to verify the
full-scale performance of the proposed
or implemented technologies,
operational measures. The verification
study must begin at the start of
operations of the cooling water intake
structure and continue for a sufficient
period of time to demonstrate that the
facility is reducing the level of
impingement and entrainment to the
level documented in paragraph
(c)(2)(iv)(B) of this section. The plan
must describe the frequency of
monitoring and the parameters to be
monitored. The Director will use the
verification monitoring to confirm that
you are meeting the level of
impingement mortality and entrainment
reduction required in § 125.84(d), and
that the operation of the technology has
been optimized.
(2) A plan to conduct monitoring to
verify that the restoration measures will
maintain the fish and shellfish in the
waterbody to a substantially similar
level as that which would be achieved
through § 125.84(b)(1) and (2).
§ 125.87 As an owner or operator of a new
facility, must I perform monitoring?
As an owner or operator of a new
facility, you will be required to perform
monitoring to demonstrate your
compliance with the requirements
specified in § 125.84.
(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)(3) or the Comprehensive
Demonstration Study required by
§ 125.86(c)(2), depending on whether
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Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
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)(3) or the Comprehensive
Demonstration Study required by
§ 125.86(c)(2). You must follow the
monitoring frequencies identified below
for at least two (2) years after the initial
permit issuance. After that time, the
Director may approve a request for less
frequent sampling in the remaining
years of the permit term and when the
permit is reissued, if supporting data
show that less frequent monitoring
would still allow for the detection of
any seasonal and daily variations in the
species and numbers of individuals that
are impinged or entrained.
(1) Impingement sampling. You must
collect samples to monitor impingement
rates (simple enumeration) for each
species over a 24-hour period and no
less than once per month when the
cooling water intake structure is in
operation.
(2) Entrainment sampling. You must
collect samples to monitor entrainment
rates (simple enumeration) for each
species over a 24-hour period and no
less than biweekly 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)(3) 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.
(b) Velocity monitoring. If your
facility uses surface intake screen
systems, you must monitor head loss
across the screens and correlate the
measured value with the design intake
velocity. The head loss across the intake
screen must be measured at the
minimum ambient source water surface
elevation (best professional judgment
based on available hydrological data).
The maximum head loss across the
screen for each cooling water intake
structure must be used to determine
compliance with the velocity
requirement in § 125.84(b)(2) or (c)(1). If
your facility uses devices other than
surface intake screens, you must
monitor velocity at the point of entry
through the device. You must monitor
head loss or velocity during initial
facility startup, and thereafter, at the
frequency specified in your NPDES
permit, but no less than once per
quarter.
(c) Visual or remote inspections. You
must either conduct visual inspections
or employ remote monitoring devices
during the period the cooling water
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23:47 Dec 17, 2001
Jkt 197001
intake structure is in operation. You
must conduct visual inspections at least
weekly to ensure that any design and
construction technologies required in
§ 125.84(b)(4) and (5), or (c)(3) and (4)
are maintained and operated to ensure
that they will continue to function as
designed. Alternatively, you must
inspect via remote monitoring devices
to ensure that the impingement and
entrainment technologies are
functioning as designed.
§ 125.88 As an owner or operator of a new
facility, must I keep records and report?
As an owner or operator of a new
facility you are required to keep records
and report information and data to the
Director as follows:
(a) You must keep records of all the
data used to complete the permit
application and show compliance with
the requirements, any supplemental
information developed under § 125.86,
and any compliance monitoring data
submitted under § 125.87, for a period
of at least three (3) years from the date
of permit issuance. The Director may
require that these records be kept for a
longer period.
(b) You must provide the following to
the Director in a yearly status report:
(1) Biological monitoring records for
each cooling water intake structure as
required by § 125.87(a);
(2) Velocity and head loss monitoring
records for each cooling water intake
structure as required by § 125.87(b); and
(3) Records of visual or remote
inspections as required in § 125.87(c).
§ 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)(3) and § 125.86 at the
time of the initial permit application
and before each permit renewal or
reissuance.
(1) After receiving the initial permit
application from the owner or operator
of a new facility, the Director must
determine applicable standards in
§ 125.84 to apply to the new facility. In
addition, the Director must review
materials to determine compliance with
the applicable standards.
(2) For each subsequent permit
renewal, the Director must review the
application materials and monitoring
data to determine whether
requirements, or additional
requirements, for design and
construction technologies or operational
measures should be included in the
permit.
(3) For Track II facilities, the Director
may review the information collection
PO 00000
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Fmt 4701
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proposal plan required by
§ 125.86(c)(2)(iii). The facility may
initiate sampling and data collection
activities prior to receiving comment
from the Director.
(b) Permitting requirements. Section
316(b) requirements are implemented
for a facility through an NPDES permit.
As the Director, you must determine,
based on the information submitted by
the new facility in its permit
application, the appropriate
requirements and conditions to include
in the permit based on the track (Track
I or Track II) the new facility has chosen
to comply with. The following
requirements must be included in each
permit:
(1) Cooling water intake structure
requirements. At a minimum, the permit
conditions must include the
performance standards that implement
the requirements of § 125.84(b)(1), (2),
(3), (4) and (5); § 125.84(c)(1), (2), (3)
and (4); or § 125.84(d)(1) and (2). In
determining compliance with
proportional flow requirement in
§§ 125.84(b)(3)(ii); (c)(2)(ii); and
(d)(2)(ii), the director must consider
anthropogenic factors (those not
considered ‘‘natural’’) unrelated to the
new facility’s cooling water intake
structure that can influence the
occurrence and location of a
thermocline. These include source
water inflows, other water withdrawals,
managed water uses, wastewater
discharges, and flow/level management
practices (e.g., some reservoirs release
water from below the surface, close to
the deepest areas).
(i) For a facility that 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
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) For a facility that chooses Track II,
you must review the information
submitted with the Comprehensive
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Federal Register / Vol. 66, No. 243 / Tuesday, December 18, 2001 / Rules and Regulations
Demonstration Study information
required in § 125.86(c)(2), evaluate the
suitability of the proposed design and
construction technologies and
operational measures to determine
whether they will reduce both
impingement mortality and entrainment
of all life stages of fish and shellfish to
90 percent or greater of the reduction
that could be achieved through Track I.
If you determine that restoration
measures are appropriate at the new
facility for consideration of impacts
other than impingement mortality and
entrainment, you must review the
Evaluation of Proposed Restoration
Measures and evaluate whether the
proposed measures will maintain the
fish and shellfish in the waterbody at a
substantially similar level to that which
would be achieved through
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23:47 Dec 17, 2001
Jkt 197001
§ 125.84(b)(1) and (2). 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,
operational measures and restoration
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).
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65345
(2) Monitoring conditions. At a
minimum, the permit must require the
permittee to perform the monitoring
required in § 125.87. You may modify
the monitoring program when the
permit is reissued and during the term
of the permit based on changes in
physical or biological conditions in the
vicinity of the cooling water intake
structure. The Director may require
continued monitoring based on the
results of the Verification Monitoring
Plan in § 125.86(c)(2)(iv)(D).
(3) Record keeping and reporting. At
a minimum, the permit must require the
permittee to report and keep records as
required by § 125.88.
[FR Doc. 01–28968 Filed 12–17–01; 8:45 am]
BILLING CODE 6560–50–P
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Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
3. § 401.35 is amended by: removing
the word ‘‘and’’ after the semicolon in
paragraph (a); removing the period after
paragraph (b) and replacing it with a
semicolon; and adding two new
paragraphs (c) and (d) to read as follows:
§ 401.35
Navigation underway.
*
*
*
*
*
(c) Man the wheelhouse of the vessel
at all times by either the master or
certified deck officer and by another
qualified crewmember; and
(d) Have sufficient well rested
crewmembers available for mooring
operations and other essential duties.
Issued at Washington, DC on June 16, 2003.
Albert S. Jacquez,
Administrator, Saint Lawrence Seaway
Development Corporation.
[FR Doc. 03–15537 Filed 6–18–03; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 125
[FRL–7514–9]
RIN 2040–AD85
National Pollutant Discharge
Elimination System—Amendment of
Final Regulations Addressing Cooling
Water Intake Structures for New
Facilities
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
Today’s final rule makes
minor changes to EPA’s final rule
published December 18, 2001,
implementing section 316(b) of the
Clean Water Act (CWA) for new
facilities that use water withdrawn from
rivers, streams, lakes, reservoirs,
estuaries, oceans or other waters of the
United States for cooling. The December
2001 rule instituted national
technology-based performance
requirements applicable to the location,
design, construction, and capacity of
cooling water intake structures at new
facilities. These national requirements
establish the best technology available
for minimizing adverse environmental
impact associated with the use of these
structures. EPA is making several minor
changes to the December 2001 rule
because, in several instances, the final
rule text does not reflect the Agency’s
intent.
DATES: This final rule is effective on July
21, 2003. For judicial review purposes,
this final rule is promulgated as of 1
p.m. Eastern Standard Time (EST) on
July 3, 2003, as provided in 40 CFR 23.2
and 23.7.
FOR FURTHER INFORMATION CONTACT:
Martha Segall, USEPA Office of Water
by phone at (202) 566–1041 or by e-mail
at rule.316b@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. General Information
A. Regulated Entities
This final rule applies to new
greenfield and stand-alone facilities that
use cooling water intake structures to
withdraw water from waters of the U.S.
and that have or require a National
Pollutant Discharge Elimination System
(NPDES) permit issued under section
402 of the CWA. New facilities subject
to this regulation include those that
have a design intake flow of greater than
two (2) million gallons per day (MGD)
and that use at least twenty-five (25)
percent of water withdrawn for cooling
purposes. Today’s rule does not apply to
existing facilities, major modifications
to existing facilities that would be ‘‘new
sources’’ under 40 CFR 129.29(b) as that
term is used in the effluent guidelines
and standards program, or facilities that
employ cooling water intake structures
in the offshore oil and gas extraction
point source category as defined under
40 CFR 435.10 and 40 CFR 435.40.
The following table is not intended to
be exhaustive; rather, it provides a guide
for readers regarding entities likely to be
regulated by this action. The table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
facility is regulated by this action, you
should carefully examine the
applicability criteria at 40 CFR 125.81.
If you have questions about the
applicability of this action to a
particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Examples of regulated entities
Standard industrial
classification codes
Federal, State and Local
Government.
Operators of steam electric generating point source dischargers
that employ cooling water intake structures.
4911 and 493 ............
Industry ...............................
Operators of industrial point source dischargers that employ
cooling water intake structures.
Steam electric generating ...............................................................
See below .................
Agricultural production ....................................................................
Metal mining ...................................................................................
Oil and gas extraction (Excluding offshore and coastal subcategories).
Mining and quarrying of nonmetallic minerals ...............................
Food and kindred products ............................................................
0133 ..........................
1011 ..........................
1311, 1321 ................
Tobacco products ...........................................................................
Textile mill products ........................................................................
2141 ..........................
2211 ..........................
Category
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15:48 Jun 18, 2003
Jkt 200001
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36749
4911 and 493 ............
1474 ..........................
2046, 2061, 2062,
2063, 2075, 2085.
E:\FR\FM\19JNR1.SGM
19JNR1
North American Industry Codes
(NAIC)
221111, 221112,
221113, 221119,
221121, 221122,
221111, 221112,
221113, 221119,
221121, 221122
See below
221111, 221112,
221113, 221119,
221121, 221122,
221111, 221112,
221113, 221119,
221121, 221122
111991, 11193
21221
211111, 211112
212391
311221, 311311,
311312, 311313,
311222, 311225,
31214
312229, 31221
31321
36750
Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
Category
Standard industrial
classification codes
Examples of regulated entities
Lumber and wood products, except furniture ................................
2415, 2421, 2436,
2493.
Paper and allied products ..............................................................
2611, 2621, 2631,
2676.
Chemical and allied products .........................................................
28 (except 2895,
2893, 2851, and
2879).
2911, 2999 ................
3011, 3069 ................
Petroleum refining and related industries ......................................
Rubber and miscellaneous plastics products .................................
Stone, clay, glass, and concrete products .....................................
Primary metal industries .................................................................
3241 ..........................
3312, 3313, 3315,
3316, 3317, 3334,
3339, 3353, 3363,
3365, 3366.
Fabricated metal products, except machinery and transportation
equipment.
3421, 3499 ................
Industrial and commercial machinery and computer equipment ...
3523, 3531 ................
Transportation equipment ...............................................................
3724, 3743, 3764 ......
Measuring, analyzing, and controlling instruments; photographic,
medical, and optical goods; watches and clocks.
Electric, gas, and sanitary services ................................................
3861 ..........................
Educational services .......................................................................
Engineering, accounting, research, management and related
services.
8221 ..........................
8731 ..........................
B. How Can I Get Copies of This
Document and Other Related
Information?
1. Docket. EPA has established an
official public docket for this action
under Docket ID No. OW–2002–0052.
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 Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
The official public docket is the
collection of materials that is available
for public viewing at the Water Docket
in the EPA Docket Center, (EPA/DC)
EPA West, Room B102, 1301
Constitution Ave., NW, Washington,
DC. The EPA Docket Center 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
VerDate Jan<31>2003
15:48 Jun 18, 2003
Jkt 200001
number for the Water Docket is (202)
566–2426.
2. Electronic Access. You may access
this Federal Register document
electronically through the EPA Internet
under the ‘‘Federal Register’’ listings at
http://www.epa.gov/fedrgstr/.
An electronic version of the public
docket is available through EPA’s
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at http://www.epa.gov/edocket/
to view public comments, access the
index listing of the contents of the
official public docket, and to access
those documents in the public docket
that are available electronically.
Although not all docket materials may
be available electronically, you may still
access any of the publicly available
docket materials through the docket
facility identified in Unit I.B. Once in
the system, select ‘‘search,’’ then key in
the appropriate docket identification
number.
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4911, 4931, 4939,
4961.
North American Industry Codes
(NAIC)
321912, 321113,
321918, 321999,
321212, 321219
3221, 322121, 32213,
322121, 322122,
32213, 322291
325 (except 325182,
32591, 32551,
32532)
32411, 324199
326211, 31332,
326192, 326299
32731
324199, 331111,
331112, 331492,
331222, 332618,
331221, 22121,
331312, 331419,
331315, 331521,
331524, 331525
332211, 337215,
332117, 332439,
33251, 332919,
339914, 332999
333111, 332323,
332212, 333922,
22651, 333923,
33312
336412, 333911,
33651, 336416
333315, 325992
221111, 221112,
221113, 221119,
221121, 221122,
22121, 22133
61131
54171
II. Legal Authority, Purpose, and Scope
of Today’s Final Rule
On December 18, 2001, EPA
published a final rule implementing
section 316(b) of the Clean Water Act for
new facilities that use water withdrawn
from rivers, streams, lakes, reservoirs,
estuaries, oceans or other waters of the
United States for cooling purposes. EPA
reviewed the final rule text and believes
that the regulatory language did not
correctly reflect EPA’s intent with
respect to three issues. On December 26,
2002, EPA published a direct final rule
(67 FR 78948) amending the text of the
December 2001 final rule. EPA
published a companion proposed rule
on the same day as the direct final rule
(67 FR 78956). The proposed rule
invited comment on the substance of the
direct final rule. The proposed rule
stated that if EPA received adverse
comment by January 27, 2003, the direct
final rule would not take effect and EPA
would publish a notice in the Federal
Register withdrawing the direct final
rule before the March 26, 2003, effective
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date. EPA subsequently received
adverse comment on the direct final
rule, and withdrew the direct final rule
on March 19, 2003 (68 FR 14164).
Today’s rulemaking constitutes EPA’s
final action on the proposed rule. With
this final action, EPA is addressing and
responding to the adverse comments
received on the proposed rule and the
direct final rule.
The legal authority, background, and
basis for the December 2001 rule are
discussed in the Federal Register notice
of rulemaking (66 FR 65256, December
18, 2001). EPA often refers to the final
rule implementing section 316(b) for
new facilities as the ‘‘Phase I rule.’’ This
term is used to avoid confusion with
other phases of the section 316(b)
rulemaking that mainly cover existing
facilities.
III. Summary of the Final Rule
This rule makes minor changes to the
regulations at 40 CFR 125.80, National
Pollutant Discharge Elimination System:
Regulations Addressing Cooling Water
Intake Structures for New Facilities
published on December 18, 2001 (66 FR
65256). The changes will clarify three
technical issues on velocity monitoring,
authority to require additional design
and construction technologies, and
procedures governing requests for less
stringent alternative requirements.
A. Velocity Monitoring
The first revision to the regulatory
text relates to velocity monitoring. In
the final rule for cooling water intake
structures at new facilities, EPA
required that velocity be monitored at
cooling water intake structures at least
once per quarter. In monitoring velocity,
facilities that employ surface intake
screens are required to monitor head
loss across the intake screens at the
‘‘minimum ambient source water
surface elevation.’’ EPA qualified that
language in the requirement by adding
a parenthetical phrase that would allow
the minimum ambient source water
surface elevation to be determined using
the Director’s best professional
judgment based on available
hydrological data. See 40 CFR 125.87(b).
However, EPA also defined ‘‘minimum
ambient source water surface elevation’’
at 40 CFR 125.83 to mean ‘‘the elevation
of the 7Q10 flow for freshwater streams
or rivers; the conservation pool level for
lakes or reservoirs; or the mean low
tidal water level for estuaries or
oceans.’’ EPA further defined each of
these low flows in terms of a temporal
and hydrological basis. See 66 FR
65339, December 18, 2001.
EPA understands that ambient source
water surface elevations fluctuate
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through time, and it would be difficult,
if not infeasible, to coordinate the
measurements of head loss to the time
when these minimum ambient source
water surface elevations were occurring
in the waterbody. It was EPA’s intent
that the velocity be measured at a time
that is predicted, based on knowledge of
the hydrology of the waterbody, to be a
time of reasonable low flow
representative of the low surface
elevations that might occur during the
months that comprise each quarter. For
example, in tidal waters the velocity
measurement should be taken at a low
tide. If tide tables and/or other records
indicate that the surface elevations in a
particular month are typically lower
than in other months, the facility should
measure intake velocity at one of the
lowest predicted tides during that
particular month. In reservoirs where
water levels are drawn down at certain
parts of the year, the facility should
measure intake velocity immediately
after a drawdown or release has
occurred. In freshwater rivers and
streams, the facility should measure
intake velocity during the month that
typically has the lowest flows. Such
monitoring should occur at a time when
flows are not temporarily elevated due
to recent storm events. The Director
should determine and specify the
appropriate time of measurement in the
facility’s NPDES permit based on
available existing hydrological
information and information submitted
by the owner of the facility with its
permit application. Accordingly, to
conform the regulatory text to EPA’s
intent, EPA believes that the regulatory
language at 40 CFR 125.87 is sufficient
and that the definition of ‘‘minimum
ambient source water surface elevation’’
is no longer needed. Therefore, today’s
action will only delete the definition of
‘‘minimum ambient source water
surface elevation’’ at 40 CFR 125.83.
B. Director’s Authority to Require
Additional Design and Construction
Technologies or Operational Measures
in Track I
The second set of revisions to the
regulatory text relates to the Director’s
authority to require additional design
and construction technologies or
operational measures in Track I. There
are five provisions at issue: 40 CFR
125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii),
(c)(3)(ii), and (c)(3)(iii). Four of these
provisions specify circumstances where
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish are required. At 40 CFR
125.84(b)(4)(ii) and (c)(3)(ii), facilities
are required to select and implement
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36751
design and construction technologies or
operational measures for minimizing
impingement mortality of fish and
shellfish if ‘‘There are migratory and/or
sport or commercial species of
impingement concern to the Director or
any fishery management agency(ies),
which pass through the hydraulic zone
of influence of the cooling water intake
structure.’’ The language should have
specified that additional design and
construction technologies or operational
measures are required if, ‘‘Based on
information submitted by any fishery
management agency(ies) or other
relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure.’’ Paragraphs (b)(4)(iii)
and (c)(3)(iii) require a facility to select
and implement design and construction
technologies or operational measures for
minimizing impingement mortality if ‘‘It
is determined by the Director or any
fishery management agency(ies) * * *.’’
The language should have specified that
those technologies are required if, ‘‘It is
determined by the Director, based on
information submitted by any fishery
management agency(ies) or other
relevant information, that * * *.’’ The
fifth provision, paragraph (b)(5)(ii),
addresses circumstances where design
and construction technologies or
operational measures are required for
minimizing entrainment of entrainable
life stages of fish and shellfish. The
language used in this provision was
similar to that in paragraphs (b)(4)(ii),
(b)(4)(iii), (c)(3)(ii), and (c)(3)(iii) and
therefore required similar corrections.
All of these revisions are necessary
because the decision of what to require
under section 316(b) of the CWA
belongs to the Director. Although EPA
did not intend to delegate the
decisionmaking to another agency, the
Director may obtain information from
another agency to make a decision.
Therefore, today’s action amends the
requirements at 40 CFR 125.84(b)(4)(ii),
(b)(4)(iii), (b)(5)(ii), (c)(3)(ii), and
(c)(3)(iii) to reflect the intent that the
information of another agency informs
the decision of the Director.
C. Deletion of Inappropriate Cross
Reference in the Alternative
Requirements Section
The third issue relates to drafting
errors in the alternative requirements
section of the rule. The regulation at 40
CFR 125.85 in paragraphs (a)(2) and (3)
currently refers to local water resources
‘‘not addressed under § 125.84(d)(1)(i)’’
intending to refer to local water resource
issues other than impingement or
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entrainment. Cross-referencing this
other section of the regulations is not
technically correct, because subsection
(d) of § 125.84 is part of Track II while
the alternative requirements provision
applies to either Track I or Track II.
Therefore, this action deletes the
reference to 40 CFR 125.84(d)(1)(i) and
substitutes language referencing
‘‘significant adverse impacts on local
water resources other than impingement
or entrainment.’’ Similarly, to eliminate
any uncertainty regarding applicability
of the alternative requirements
provision at 40 CFR 125.85 to the Track
II performance requirements at 40 CFR
125.84(d), this action deletes 40 CFR
125.84(d)(1)(ii) because it is
unnecessary and confusing. In addition,
the paragraph 40 CFR 125.84(d)(1) and
the subparagraph (d)(1)(i) have been
combined with some modifications
because a separate subparagraph is no
longer needed.
IV. Response to Comments
EPA received one set of comments on
the direct final and companion
proposed rules published on December
26, 2002, (67 FR 78948 and 78956) from
Riverkeeper, Inc. on behalf of 16
environmental organizations. This
group of environmental organizations
are petitioners in a suit filed against
EPA in the U.S. Court of Appeals in the
Second Circuit (Case No. 02–4005)
challenging EPA’s final Phase I rule for
new facilities. Riverkeeper, et al.
submitted as their comments the brief
that they filed in their challenge to the
December 18, 2001, Phase I final
regulations (Brief for the Environmental
Petitioners, December 4, 2002).
Riverkeeper et al.’s comments did not
specifically object to the technical
changes in the direct final rule; rather,
they objected to the underlying
provisions in the final Phase I rule that
are related to the technical corrections.
Riverkeeper et al. filed their brief to
preserve their ability to have the
objectionable provisions remanded to
EPA should they succeed in their
challenge of the Phase I rule. EPA also
understands that Riverkeeper et al.
intend to consolidate any petition for
review of this rule with the pending
litigation in the Second Circuit. EPA
believes it responded to Riverkeeper et
al.’s comments articulated in their brief
in EPA’s brief filed in the Second
Circuit on April 4, 2003, and in the
record for the Phase I rule. Thus, EPA
includes in the record for this rule the
brief it filed in the Second Circuit in the
Phase I litigation, all other briefs filed in
that litigation, and the entire public
record on the National Pollutant
Discharge Elimination System:
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Regulations Addressing Cooling Water
Intake Structures for New Facilities,
Final Rule (Docket ID W–00–03).
V. Statutory and Executive Orders
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866, [58 FR
51735, October 4, 1993] the Agency
must determine whether the regulatory
action is ‘‘significant’’ and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector or the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
It has been determined that this rule
is not a ‘‘significant regulatory action’’
under the terms of Executive Order
12866 and therefore is not subject to
OMB review.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. This rule
merely makes three minor technical
revisions to the December 2001 Phase I
final regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
projected, and would not reduce the
level of environmental protection
projected.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
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needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
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 are listed in 40 CFR part 9
and 48 CFR chapter 15.
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.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
based on the Small Business
Administration’s size standards; (2) a
small governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impact of today’s final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final rule does not substantively
change the December 18, 2001, final
rule for new facilities (66 FR 65256), nor
does it impose a significant economic
impact on a substantial number of small
entities. This rule merely makes three
minor technical revisions to the
December 2001 rule. These minor
changes will clarify the Agency’s intent
on velocity monitoring, authority to
require additional design and
construction technologies, and
procedures for seeking less stringent
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alternative requirements. It would affect
the same facilities as the December 2001
rule, impose no additional costs or
result in additional benefits beyond
those already projected, and would not
reduce the level of environmental
protection projected.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA has determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector, in any one year. This
rule merely makes three minor technical
revisions to the December 2001 Phase I
final regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
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monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
would have no additional costs or
benefits beyond those already projected,
and would not reduce the level of
environmental protection projected.
Thus, today’s rule is not subject to the
requirements of section 202 and 205 of
the UMRA. For the same reasons, EPA
has also determined that this rule
contains no regulatory requirements that
might significantly or uniquely affect
small governments. Thus, today’s rule is
not subject to the requirements of
section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that 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.’’
This 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
Executive Order 13132. This rule merely
makes three minor technical revisions to
the December 2001 Phase I final
regulations for new facilities. These
minor changes will clarify the Agency’s
intent on velocity monitoring, authority
to require additional design and
construction technologies, and
procedures for seeking less stringent
alternative requirements. It would affect
the same facilities as the December 2001
rule, impose no additional costs or
result in additional benefits beyond
those already projected, and would not
reduce the level of environmental
protection projected. Thus Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
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36753
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ ‘‘Policies that have Tribal
implications’’ is defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
one or more Indian Tribes, on the
relationship between the Federal
government and the Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
government and Indian Tribes.’’
This final rule does not have Tribal
implications. It will not have substantial
direct effects on Tribal governments, on
the relationship between the Federal
government and Indian Tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian Tribes, as
specified in Executive Order 13175.
This rule merely makes three minor
technical revisions to the final
regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
projected, and would not reduce the
level of environmental protection
projected. This rule will not affect
Tribes in any way in the foreseeable
future. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 (62 FR 19885,
April 23, 1997) applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe might have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency. This final
rule is not economically significant as
defined under Executive Order 12866
and does not concern an environmental
health or safety risk that EPA has reason
to believe may have a disproportionate
effect on children. This rule merely
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makes three minor technical revisions to
the final regulations for cooling water
intake structures. These minor changes
will clarify the Agency’s intent on
velocity monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
the additional benefits beyond those
already projected, and would not reduce
the level of environmental protection
projected. Therefore, it is not subject to
Executive Order 13045.
H. Executive Order 13211 (Energy
Effects)
This final rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act (‘‘NTTAA’’) of 1995 (Public Law
104–113, Section12(d), 15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
final rule does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 requires that,
to the greatest extent practicable and
permitted by law, each Federal agency
must make achieving environmental
justice part of its mission. Executive
Order 12898 provides that each Federal
agency must conduct its programs,
policies, and activities that substantially
affect human health or the environment
in a manner that ensures that such
programs, policies, and activities do not
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have the effect of excluding persons
(including populations) from
participation in, denying persons
(including populations) the benefits of,
or subjecting persons (including
populations) to discrimination under
such programs, policies, and activities
because of their race, color, or national
origin.
EPA does not expect that this final
rule would have an exclusionary effect,
deny persons the benefit of the NPDES
program or subject persons to
discrimination because of their race,
color, or national origin. This rule
merely makes three minor technical
revisions to the final regulations for
cooling water intake structures. These
minor changes will clarify the Agency’s
intent on velocity monitoring, authority
to require additional design and
construction technologies, and
procedures for seeking less stringent
alternative requirements. It would affect
the same facilities as the December 2001
rule, would have no additional costs or
benefits beyond those already projected,
and would not reduce the level of
environmental protection projected.
K. Executive Order 13158: Marine
Protected Areas
Executive Order 13158 (65 FR 34909,
May 31, 2000) requires EPA to
‘‘expeditiously propose new sciencebased regulations, as necessary, to
ensure appropriate levels of protection
for the marine environment.’’ EPA may
take action to enhance or expand
protection of existing marine protected
areas and to establish or recommend, as
appropriate, new marine protected
areas. The purpose of the Executive
Order is to protect the significant
natural and cultural resources within
the marine environment, which means
‘‘’those areas of coastal and ocean
waters, the Great Lakes and their
connecting waters, and submerged lands
thereunder, over which the United
States exercises jurisdiction, consistent
with international law.’’
Today’s final rule will not enhance or
expand protection nor reduce the level
of environmental protection of existing
marine protected areas. This rule merely
makes three minor technical revisions to
the December 2001 Phase I final
regulations for cooling water intake
structures. These minor changes will
clarify the Agency’s intent on velocity
monitoring, authority to require
additional design and construction
technologies, and procedures for
seeking less stringent alternative
requirements. It would affect the same
facilities as the December 2001 rule,
impose no additional costs or result in
additional benefits beyond those already
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projected, and would not reduce the
level of environmental protection
projected.
L. Plain Language Directive
Executive Order 12866 encourages
agencies to write all rules in plain
language. EPA has written this final rule
in plain language to make this rule and
the final rule at 66 FR 65256, December
18, 2001 easier to understand.
M. 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 not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective July 21, 2003.
List of Subjects in 40 CFR Part 125
Environmental protection, Cooling
water intake structures, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control.
Dated: June 13, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the
preamble, chapter I of title 40 of the Code
of Federal Regulations is amended as
follows:
■
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 125
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.
§ 125.83
[Amended]
2. Section 125.83 is amended by
removing the definition for ‘‘Minimum
ambient source water surface elevation.’’
■ 3. Section 125.84 is amended by
revising paragraphs (b)(4)(ii), (b)(4)(iii),
(b)(5)(ii), (c)(3)(ii), (c)(3)(iii), and (d)(1) to
read as follows:
■
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Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations
§ 125.84 As an owner or operator of a new
facility, what must I do to comply with this
subpart?
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(b) * * *
(4) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director,
based on information submitted by any
fishery management agency(ies) or other
relevant information, that the proposed
facility, after meeting the technologybased performance requirements in
paragraphs (b)(1), (2), and (3) of this
section, would still contribute
unacceptable stress to the protected
species, critical habitat of those species,
or species of concern;
(5) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
or would be undesirable cumulative
stressors affecting entrainable life stages
of species of concern to the Director and
the Director determines that the
proposed facility, after meeting the
technology-based performance
requirements in paragraphs (b)(1), (2),
and (3) of this section, would still
contribute unacceptable stress to the
protected species , critical habitat of
those species, or these species of
concern;
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(c) * * *
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(3) * * *
(ii) Based on information submitted
by any fishery management agency(ies)
or other relevant information, there are
migratory and/or sport or commercial
species of impingement concern to the
Director that pass through the hydraulic
zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director,
based on information submitted by any
fishery management agency(ies) or other
relevant information, that the proposed
facility, after meeting the technologybased performance requirements in
paragraphs (c)(1) and (2) of this section,
would still contribute unacceptable
stress to the protected species, critical
habitat of those species, or species of
concern;
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(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 comparable
level to that which you would achieve
were you to implement the
requirements of paragraphs (b)(1) and
(2) of this section. This demonstration
must include a showing that the impacts
to fish and shellfish, including
important forage and predator species,
within the watershed will be
comparable to those which would result
if you were to implement the
requirements of paragraphs (b)(1) and
(2) of this section.
This showing may include
consideration of impacts other than
impingement mortality and
entrainment, including measures that
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will result in increases in fish and
shellfish, but it must demonstrate
comparable performance for species that
the Director identifies as species of
concern. In identifying such species, the
Director may consider information
provided by any fishery management
agency(ies) along with data and
information from other sources.
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■ 4. Section 125.85 is amended by
revising paragraphs (a)(2) and (3) to read
as follows:
§ 125.85 May alternative requirements be
authorized?
(a) * * *
(2) The Director determines that data
specific to the facility indicate that
compliance with the requirement at
issue would result in compliance costs
wholly out of proportion to the costs
EPA considered in establishing the
requirement 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;
(3) The alternative requirement
requested is no less stringent than
justified by the wholly out of proportion
cost or the 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; and
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[FR Doc. 03–15518 Filed 6–18–03; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\19JNR1.SGM
19JNR1
| File Type | application/pdf |
| File Title | Microsoft Word - Appendix C.1 cover |
| Author | John.Sunda |
| File Modified | 2015-12-09 |
| File Created | 2015-12-09 |