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EPA/WATER RIN: 2040-AE95 Publication ID: Fall 2013 
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. Under a consent decree with environmental organizations, EPA divided the 316(b) rulemaking into three phases. All new facilities except offshore oil and gas exploration facilities were addressed in Phase I in December 2001. In July, 2004, EPA promulgated Phase II which covered large existing electric generating plants. In July 2007, EPA suspended the Phase II rule following the Second Circuit decision. 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 316(b) standards. On April 1, 2009, the Supreme Court reversed and remanded the case to the Second Circuit. The Second Circuit subsequently granted a request from EPA that the case be returned to the Agency for further consideration. 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. The court also granted the request of EPA and environmental petitioners to remand the existing facility portion of the rule to the Agency. EPA entered a settlement agreement with the plaintiffs in two lawsuits related to Section 316(b) rulemakings. Under the settlement agreement 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 November 4, 2013 as discussed below. Plaintiffs agreed to seek dismissal of both their suits, subject to a request to reopen one of the lawsuits in the event EPA failed to meet the 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 (entrainment). Other regulatory options analyzed included similar uniform impingement controls, and progressively more stringent requirements for entrainment controls. Another option considered would imposed the uniform impingement controls only for facilities withdrawing 50 or more MGD of cooling water, with site-specific impingement controls for facilities withdrawing less than 50 MGD. EPA issued two Notices of Data Availability in June 2012 that described measures to provide additional flexibility that EPA is considering as part of the impingement mortality standard and that described the preliminary results of surveys of households' willingness to pay for incremental reductions in fish mortality. In light of the Supreme Court 2009 decision and its recognition that EPA has broad discretion in its 316(b) regulations, EPA initiated consultation with the Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the Endangered Species Act. EPA and the Services began informal consultation in 2012, but concluded in 2013 that formal consultation was necessary. In order to accommodate the regulatory 135-day time frame for formal consultation, plaintiffs agreed to a modification to the settlement agreement, extending final rule deadline to November 4, 2013. 
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  NPRM: 3/28/2011 - Settlement Agreement - As per 14 day extension granted 3/10 (or 4 days if no CR). Riverkeeper v. EPA, 06-12987, SDNY (signed 11/22/2010).  03/28/2011 
Final  Judicial  Settlement Agreement  01/14/2014 

Statement of Need: Cooling water is withdrawn for the purpose of dissipating waste heat from industrial processes. Over half of all water withdrawn in the United States each year is for cooling purposes. The withdrawal of cooling water removes and kills hundreds of billions of aquatic organisms from waters of the United States each year, including plankton, fish, crustaceans, shellfish, sea turtles, and marine mammals. In addition to direct loss of organisms, a number of indirect, ecosystem-level effects may also occur, and environmental degradation can result from the cumulative impacts. The long life of the capital equipment in industries withdrawing cooling water implies that these adverse environmental impacts could continue for decades. Private decision making at facilities that use cooling water may not take society's preferences for fish protection into account. The beneficiaries of fish protection at cooling water intakes include fisherman, and citizens interested in well-functioning and healthy aquatic ecosystems. In addition, deregulation in the electric industry has made it more difficult for merchant power producers to both remain competitive and pass along to consumers costs associated with fish protection, putting them at a disadvantage to rate-regulated electric utilities that are vertically integrated.

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 (July 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 (July 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 existing 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 million to $126 million. EPA also conducted a stated preference survey to provide a more comprehensive estimate of the monetized benefits and expects to have the Science Advisory Board review this study.

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

Timetable:
Action Date FR Cite
NPRM  04/20/2011  76 FR 22174 
NPRM Comment Period Extended  07/20/2011  76 FR 43230 
Notice  06/11/2012  77 FR 34315 
Notice  06/12/2012  77 FR 34927 
Final Rule  01/00/2014   
Additional Information: Docket #:EPA-HQ-OW-2008-0667
Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal, Local, State 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/index.cfm  
Sectors Affected: 111930 Sugarcane Farming; 111991 Sugar Beet Farming; 211111 Crude Petroleum and Natural Gas Extraction; 211112 Natural Gas Liquid Extraction; 212210 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; 221210 Natural Gas Distribution; 221330 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; 312140 Distilleries; 312210 Tobacco Stemming and Redrying; 312229 Other Tobacco Product Manufacturing; 313210 Broadwoven Fabric Mills; 313320 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; 322130 Paperboard Mills; 322291 Sanitary Paper Product Manufacturing; 324110 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; 327310 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; 332510 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; 333120 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; 336510 Railroad Rolling Stock Manufacturing; 337215 Showcase, Partition, Shelving, and Locker Manufacturing; 339914 Costume Jewelry and Novelty Manufacturing; 611310 Colleges, Universities, and Professional Schools 
RIN Data Printed in the FR: No 
Agency Contact:
Tom Born
Environmental Protection Agency
Water
Mail Code 4303T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460
Phone:202 566-1001
Fax:202 566-1053
Email: born.tom@epamail.epa.gov

Julie Hewitt
Environmental Protection Agency
Water
Mail Code 4303T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460
Phone:202 566-1031
Email: hewitt.julie@epamail.epa.gov

 
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