Final Rule: National Pollutant Discharge Elimination System

The final rule implements section 316(b) of the Clean Water Act (CWA) for new facilities that use water withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or other waters of the United States (U.S.) for cooling purposes.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 two-track 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 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.

This regulation shall become effective January 17, 2002.

Which 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 purposes, the permit authority will implement section 316(b) on a case-by-case 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 the 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 case-by-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 Sec. 125.81 of the rule.

Supporting Documentation

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 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 may be used to meet the rule's requirements.

Scope of This Rulemaking

The 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 facility that meets all of the following criteria.

* Your greenfield or stand alone facility meets the definition of new facility specified in Sec. 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.

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 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).

Does This Rule Apply to My Facility If It Does Not Have a Point Source Discharge Subject to an NPDES Permit?

The final rule applies only to new facilities as defined in Sec. 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.

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 [email protected].

Source: Environmental Protection Agency