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EPA/WATER RIN: 2040-AE95 Publication ID: Fall 2011 
Title: Criteria and Standards for Cooling Water Intake Structures 
Abstract: Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. Phase II, for existing electric generating plants that use at least 50 MGD of cooling water, was completed in July 2004. Industry and environmental stakeholders challenged the Phase II regulations. On review, the U.S. Court of Appeals for the Second Circuit remanded several key provisions. In July 2007, EPA suspended the Phase II rule following the decision in the Second Circuit. Several parties petitioned the U.S. Supreme Court to review that decision, and the Supreme Court granted the petitions, limited to the issue of whether the Clean Water Act authorized EPA to consider the relationship of costs and benefits in establishing section 316(b) standards. On April 1, 2009, the Supreme Court reversed the Second Circuit, finding that the Agency may consider cost-benefit analysis in its decisionmaking, but not holding that the Agency must consider costs and benefits in these decisions. In June 2006, EPA promulgated the Phase III regulation, covering existing electric generating plants using less than 50 MGD of cooling water, new offshore oil and gas facilities, and all existing manufacturing facilities. Petitions to review this rule were filed in the U.S. Court of Appeals for the Fifth Circuit. In July 2010, the U. S. Court of Appeals for the Fifth Circuit issued a decision upholding EPA's rule for new offshore oil and gas extraction facilities. Further, the court granted the request of EPA and environmental petitioners in the case to remand the existing facility portion of the rule back to the Agency for further rulemaking. EPA expects this new rulemaking would apply to the approximately 1,200 existing electric generating and manufacturing plants. The Fifth Circuit also affirmed that EPA may consider costs in relation to benefits but is not required to do so. EPA entered into a settlement with the plaintiffs in two lawsuits related to section 316(b) rulemakings. Under the settlement agreement, as modified, EPA agreed to sign a notice of a proposed rulemaking implementing section 316(b) of the CWA at existing facilities no later than March 28, 2011, and to sign a notice taking final action on the proposed rule no later than July 27, 2012. Plaintiffs agreed to seek dismissal of both their suits, subject to a request to reopen the Cronin proceeding in the event EPA failed to meet the agreed deadlines. EPA's proposed regulation includes uniform controls at all existing facilities to prevent fish from being trapped against screens (impingement), site-specific controls for existing facilities other than new units to prevent fish from being drawn through cooling systems (entrainment), and uniform controls equivalent to closed cycle cooling for new units at existing facilities (also entrainment). Other regulatory options analyzed included similar uniform impingement controls and progressively more stringent requirements for entrainment controls. Another option considered would impose the uniform impingement controls only for facilities withdrawing 50 million or more gallons per day of cooling water, with site-specific impingement controls for facilities withdrawing less than 50 million gallons per day. 
Agency: Environmental Protection Agency(EPA)  Priority: Economically Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: Yes  Unfunded Mandates: Private Sector 
CFR Citation: 40 CFR 122    40 CFR 125   
Legal Authority: CWA 101    CWA 301    CWA 304    CWA 308    CWA 316    CWA 401    CWA 402    CWA 501    CWA 510   
Legal Deadline:
Action Source Description Date
NPRM  Judicial    03/28/2011 
Final  Judicial    07/27/2012 

Statement of Need: In the absence of national regulations, NPDES permit writers have developed requirements to implement section 316(b) on a case-by-case basis. This may result in a range of different requirements, and in some cases, delays in permit issuance or reissuance. This regulation may have substantial ecological benefits.

Summary of the Legal Basis: The Clean Water Act requires EPA to establish best technology available standards to minimize adverse environmental impacts from cooling water intake structures. On February 16, 2004, EPA took final action on regulations governing cooling water intake structures at certain existing power producing facilities under section 316(b) of the Clean Water Act (Phase II rule). 69 FR 41576 (Jul. 9, 2004). These regulations were challenged, and the Second Circuit remanded several provisions of the Phase II rule on various grounds. Riverkeeper, Inc., v. EPA, 475F.3d83, (2d Cir., 2007). EPA suspended most of the rule in response to the remand. 72 FR 37107 (Jul. 9, 2007). The remand of Phase III does not change permitting requirements for these facilities. Until the new rule is issued, permit directors continue to issue permits on a case-by-case, Best Professional Judgment basis for Phase II facilities.

Alternatives: This analysis will cover various sizes and types of potentially regulated facilities and control technologies. EPA is considering whether to regulate on a national basis, by subcategory, by broad water body category, or some other basis.

Anticipated Costs and Benefits: The technologies under consideration in this rulemaking are similar to the technologies considered for the original Phase II and Phase III rules, and costs have been updated to 2009. The annual social costs associated with EPA's proposed regulation are $384 million, plus an additional $15 million in costs associated with the new units provision. The annual social costs of the other options ranged from $327 million to $4.63 billion. EPA monetized only a portion of the expected annual benefits of the rule, amounting to $18 million. The monetized benefits for the other options ranged from $17 to $126 million. EPA is also conducting a stated preference survey to provide a more comprehensive estimate of the monetized benefits and expects to publish a notice of data availability with these results around the end of 2011.

Risks: Cooling water intake structures may pose significant risks for aquatic ecosystems.

Action Date FR Cite
NPRM  04/20/2011  76 FR 22174   
NPRM Comment Period End  07/19/2011    
Reopening Public Comment Period  07/20/2011  76 FR 43230   
Reopening Comment Period End  08/18/2011    
Final Action  07/00/2012    
Additional Information: EPA publication information: NPRM -!documentDetail; EPA Docket information: EPA-HQ-OW-2008-0667
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL:  
Sectors Affected: 11193 Sugarcane Farming; 111991 Sugar Beet Farming; 211111 Crude Petroleum and Natural Gas Extraction; 211112 Natural Gas Liquid Extraction; 21221 Iron Ore Mining; 212391 Potash, Soda, and Borate Mineral Mining; 221111 Hydroelectric Power Generation; 221112 Fossil Fuel Electric Power Generation; 221113 Nuclear Electric Power Generation; 221119 Other Electric Power Generation; 221121 Electric Bulk Power Transmission and Control; 221122 Electric Power Distribution; 22121 Natural Gas Distribution; 22133 Steam and Air-Conditioning Supply; 311221 Wet Corn Milling; 311222 Soybean Processing; 311225 Fats and Oils Refining and Blending; 311311 Sugarcane Mills; 311312 Cane Sugar Refining; 311313 Beet Sugar Manufacturing; 31214 Distilleries; 31221 Tobacco Stemming and Redrying; 312229 Other Tobacco Product Manufacturing; 31321 Broadwoven Fabric Mills; 31332 Fabric Coating Mills; 321113 Sawmills; 321212 Softwood Veneer and Plywood Manufacturing; 321219 Reconstituted Wood Product Manufacturing; 321912 Cut Stock, Resawing Lumber, and Planing; 321918 Other Millwork (including Flooring); 321999 All Other Miscellaneous Wood Product Manufacturing; 3221 Pulp, Paper, and Paperboard Mills; 32212 Paper Mills; 32213 Paperboard Mills; 322291 Sanitary Paper Product Manufacturing; 32411 Petroleum Refineries; 324199 All Other Petroleum and Coal Products Manufacturing; 325992 Photographic Film, Paper, Plate, and Chemical Manufacturing; 326192 Resilient Floor Covering Manufacturing; 326211 Tire Manufacturing (except Retreading); 326299 All Other Rubber Product Manufacturing; 32731 Cement Manufacturing; 331111 Iron and Steel Mills; 331112 Electrometallurgical Ferroalloy Product Manufacturing; 331221 Rolled Steel Shape Manufacturing; 331222 Steel Wire Drawing; 331312 Primary Aluminum Production; 331315 Aluminum Sheet, Plate, and Foil Manufacturing; 331419 Primary Smelting and Refining of Nonferrous Metal (except Copper and Aluminum); 331492 Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum); 331521 Aluminum Die-Casting Foundries; 331524 Aluminum Foundries (except Die-Casting); 331525 Copper Foundries (except Die-Casting); 332117 Powder Metallurgy Part Manufacturing; 332211 Cutlery and Flatware (except Precious) Manufacturing; 332212 Hand and Edge Tool Manufacturing; 332323 Ornamental and Architectural Metal Work Manufacturing; 332439 Other Metal Container Manufacturing; 33251 Hardware Manufacturing; 332618 Other Fabricated Wire Product Manufacturing; 332919 Other Metal Valve and Pipe Fitting Manufacturing; 332999 All Other Miscellaneous Fabricated Metal Product Manufacturing; 333111 Farm Machinery and Equipment Manufacturing; 33312 Construction Machinery Manufacturing; 333315 Photographic and Photocopying Equipment Manufacturing; 333911 Pump and Pumping Equipment Manufacturing; 333922 Conveyor and Conveying Equipment Manufacturing; 333923 Overhead Traveling Crane, Hoist, and Monorail System Manufacturing; 336412 Aircraft Engine and Engine Parts Manufacturing; 33651 Railroad Rolling Stock Manufacturing; 337215 Showcase, Partition, Shelving, and Locker Manufacturing; 339914 Costume Jewelry and Novelty Manufacturing; 54171 Research and Development in the Physical, Engineering, and Life Sciences; 61131 Colleges, Universities, and Professional Schools 
RIN Data Printed in the FR: No 
Agency Contact:
Paul Shriner
Environmental Protection Agency
Washington, DC 20460
Phone:202 566-1076

Julie Hewitt
Environmental Protection Agency
Mail Code 4303T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460
Phone:202 566-1031

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