TABLE X   43.   EXAMPLES OF STUDIES THAT PROVIDE INFORMATION ABOUT USE AND NONUSE VALUES Author Year Title Source Clonts & Malone .... 1990 ..... Preservation Attitudes and Consumer Surplus in Free Flowing Rivers. In: Social Science and Natural Resource Recreation Management, Joanne Vining, editor. Westview Press, Boulder, CO. pp. 301   317. Croke et al ............. 1986   87 Estimating the Value of Improved Water Quality in an Urban River System. Journal of Environmental Systems. Vol. 16, No. 1. pp. 13   24. Cronin .................... 1982 ..... Valuing Nonmarket Goods Through Contingent Markets Pacific Northwest Laboratory, PNL   4255, Richland, WA. Desvousges et al ... 1983 ..... Contingent Valuation Design and Results: Option and Existence Values. In: A Comparison of Alternative Approaches for Estimating Recreation and Related Benefits of Water Quality Improvements. U. S. Environmental Protection Agency, Economic Analysis Division, Washington D. C. Huang et al ............ 1997 ..... Willingness to Pay for Quality Improvements: Should Revealed and Stated Preference Data Be Combined Journal of Environmental Economics and Management Vol. 34, No. 3. pp. 240   255.

Kaoru ..................... 1993 ..... Differentiating Use and Nonuse Values for Coastal Pond Water Quality Improvements. Environmental and Resource Economics. Vol. 3. pp. 487   494. Lant & Roberts ...... 1990 ..... Greenbelts in the Cornbelt: Riparian Wetlands, Intrinsic Values, and Market Failure. Environment and Planning. Vol. 22. pp. 1375   1388.

Magat et al ............. 2000 ..... An Iterative Choice Approach to Valuing Clean Lakes, Rivers, and Streams. Journal of Risk and Uncertainty. Vol. 21, No. 1. pp. 7   43. Mitchell & Carson .. 1981 ..... An Experiment in Determining Willingness to Pay for National Water Quality Improvements. Preliminary Draft of a report to the U. S. Environmental Protection Agency. Resources for the Future, Inc., Washington, D. C. Olsen et al ............. 1991 ..... Existence and Sport Values for Doubling the Size of Columbia River Basin Salmon and Steelhead Runs. Rivers. Vol. 2, No. 1. pp. 44   56.

Roberts & Leitch .... 1997 ..... Economic Valuation of Some Wetland Outputs of Mud Lake. Agricultural Economics Report No. 381, Department of Agricultural Economics, North Dakota Agricultural Experiment Station, North Dakota State University. Rowe et al ............. 1985 ..... Economic Assessment of Damage Related to the Eagle Mine Facility. Energy and Resource Consultants, Inc., Boulder, CO.

VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13576 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules TABLE X   43.   EXAMPLES OF STUDIES THAT PROVIDE INFORMATION ABOUT USE AND NONUSE VALUES   Continued Author Year Title Source Sanders et al ......... 1990 ..... Toward Empirical Estimation of the Total Value of Protecting Rivers. Water Resources Research. Vol. 26, No. 7. pp. 1345   1357. Sutherland & Walsh 1985 ..... Effect of Distance on the Preservation Value of Water Quality. Land Economics. Vol. 61, No. 3. pp. 282   291.

Walsh et al ............. 1978 ..... Option Values, Preservation Values and Recreational Benefits of Improved Water Quality: a Case Study of the Southe Platte River Basin, Colorado. EPA   600/ 5   78   001, Socioeconomic Environmental Studies Series, Office of Research and Development U. S. Environmental Protection, Research Triangle Park, NC. Welle ...................... 1986 ..... Potential Economic Impacts of Acid Deposition: A Contingent Valuation Study of Minnesota. Dissertation, University of Wisconsin Madison.

Whitehead & Groothuis. 1992 ..... Economic Benefits of Improved Water Quality: a case study of North Carolina's Tar Pamlico River. Rivers. Vol. 3. pp. 170   178.

Whitehead et al ..... 1995 ..... Assessing the Validity and Reliability of Contingent Values: A Comparison of On Site Users, Off Site Users, and Non users. Journal of Environmental Economics and Management Vol. 29. pp. 238   251.

The Agency is considering applying the results of this type of review and analysis to estimate nonuse value for aquatic resources potentially affected by impingement and entrainment for the final rule analysis, and recognizes that this approach requires careful accounting of factors that are likely to affect nonuse values of aquatic resources such as the geographic scale of environmental improvements, regional or national importance of the affected resources, and the magnitude of environmental quality changes. The Agency seeks comment on this general approach as well as the applicability and feasibility of estimating nonuse values that are based on ( 1) a percent or fraction of use values per household ( see Section X B 4 of this preamble for summary of methods for assessing recreational use values) and/ or ( 2) specific user and nonuser populations for this rule. The agency also solicits feedback about the studies reviewed by EPA as well as other studies that might be suitable.

b. Meta Analysis In addition to simply reviewing available information about the relative magnitudes of nonuse and use values, EPA is also considering regressionbased meta analysis of nonuse WTP for water resources. Depending on the suitability of available data, a metaanalysis can provide information on the relative influence of various study, economic, and natural resource characteristics on nonuse willingness to pay. Economic literature characterize meta analysis as a rigorous alternative to the more casual, narrative discussion of research studies which typify many attempts to summarize available information about environmental values. The primary advantage of a regression based approach is that it may account for differences among study sites that may contribute to changes in nonuse values, to the extent permitted by available data. The following discussion briefly summarizes EPA's approach to this analysis. DCN 5   1011 provides further detail. The dependent variable in the regression based meta analysis may be either the estimated nonuse value or the total value ( including use and nonuse value) of aquatic habitat improvements. The total value can be modeled as a function of explanatory variables that include ( 1) core economic variables and ( 2) study design effects variables. The core economic variables are used to characterize specifics of the resource( s) valued ( e. g. whether they are estuarine or freshwater); the geographic scale of resource improvements ( e. g., single water body versus multiple water bodies); the estimated use values for environmental quality improvement, quantitative or categorical measures of environmental quality improvements, and survey respondents' characteristics such as mean income of survey respondents. Study design effects characterize the year in which a study was conducted, the elicitation format of the survey ( e. g., telephone and mail); the elicitation method ( e. g., open ended WTP method). DCN 5   1011 provides information on key variables available from the 18 studies reviewed by EPA. EPA also notes potential limitations of this approach. Limitations of the regression analysis approach specifically stem from the number of studies that meet criteria for inclusion, the number of variables that could be included in the regression analysis ( which depends on the number of and information available from the original studies), as well as degrees of freedom and statistical significance. For example, study differences often prevent the use of a single measure of the degree of environmental quality improvements. Prior meta analyses of this type, including Woodward and Wui ( 2000) and Poe et al. ( 2001), lack a continuous and quantified measure of environmental quality improvement. The use of other economic variables that might be desirable from a theoretical perspective ( e. g., information on substitute goods) may complicate extraction of suitable data from the underlying studies. EPA also recognizes that clear and objective criteria are needed to determine which studies are suitable for inclusion in meta analysis; criteria should acknowledge issues related to potential bias associated with stated preference studies, and steps that the researchers should take to minimize bias, as noted in Section X B 1 of this preamble. One key challenge of both of the approaches discussed in this section is to determine the applicability of study results to the policy case of interest ( i. e., fish impacts due to impingement and entrainment in this rule) because of significant variations in study objectives and methodologies. The use ( and interpretation) of the value estimates to predict WTP in specific cases will follow the methodologies from the benefits transfer literature ( e. g., Vandenberg et al. 2001; Desvousges et al., 1998). EPA seeks comments on appropriateness of the meta analysis approach for calculating nonuse values for aquatic habitat improvements associated with reduced impingement and entrainment in this rule.

F. Regional Level Benefit Cost Analysis This section presents EPA's estimates of the total monetary value of the baseline impingement and entrainment losses at cooling water intake structures located in the North Atlantic and Northern California study regions. A comprehensive estimate of the value of the resource should include both use VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13577 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules and nonuse values. However, EPA was able to estimate nonuse values for the North Atlantic region only due to data limitations. `` Nonuse values, like use values, have their basis in theory of individual preferences and the measurement of welfare changes. According to theory, use values and nonuse values are additive'' ( M. Freeman, 1993). The following sections present the estimated monetary value of impingement and entrainment losses under the baseline scenario and the estimated impingement and entrainment reduction benefits under the preferred option for the two study regions. The Agency, however, points out the estimate of benefits for the Northern California region is incomplete and includes recreational and commercial fishing benefits only.

1. Benefit Cost Analysis of the Preferred Option for the North Atlantic Region a. Total Monetary Value of Baseline Impingement and Entrainment Losses in the North Atlantic Region Table X   44 presents EPA's estimates of the total value of baseline impingement and entrainment losses at cooling water intake structures in the North Atlantic region. The estimated nonuse value of fishery resources lost to impingement and entrainment ranges from $ 75.64 million to $ 139.92 million per year ( 2002$). Note that EPA has provided two different estimates of total value in Table X   44. The first total value is the sum of aggregate use value and the nonuse component of restoration based value. The second total value ( i. e., restoration based total value) is simply the total value ( including nonuse) for SAV and wetland restoration acres as presented in Section X E d of this preamble. The estimated total value of impingement and entrainment losses in the North Atlantic region ranges from $ 79 to $ 143 million ( 2002$) per year when commercial/ recreational use values are added to the nonuse component of restoration based values. The total value based on the total restoration based value is similar in range ($ 79 to $ 148 million).

TABLE X   44.   ANNUAL VALUE OF BASELINE LOSSES FROM IMPINGEMENT AND ENTRAINMENT IN THE NORTH ATLANTIC REGION ( MILLIONS 2002$)

Before discounting Discounted using 3% discount rate Discounted using 7% discount rate Low High Low High Low High Use Value of Resources Lost Commercial Use a, b .......................................................... $ 0.28 $ 0.28 $ 0.24 $ 0.24 $ 0.20 $ 0.20 Recreational Use a, b ......................................................... 3.07 3.07 2.64 2.64 2.25 2.25 Aggregate Use Benefits ................................................... 3.36 3.36 2.88 2.88 2.45 2.45 Nonuse Value of Resources Lost c Restoration based nonuse value ..................................... 75.64 139.92 75.64 139.92 75.64 139.92 Total Monetary Value of Resources Lost Total value ( aggregate use + restoration based nonuse ............................................................................... 79.00 143.28 78.52 142.80 78.09 142.37 Restoration based total value d ........................................ 79.21 148.25 79.21 148.25 79.21 148.25 Note: Sum of components may not equal totals due to rounding. a Welfare losses represent losses due to both impingement and entrainment because recreational estimates cannot be presented separately for these categories. Commercial/ recreational use values are annual values derived in Section X C. b Commercial and recreational losses are presented undiscounted, and discounted at 3% and 7%. There are no low or high estimates for welfare losses. c Nonuse values are not discounted. Values are based on nonuse values for SAV and wetland restoration for the populations in counties abutting affected water bodies. Low values assume lower bound restoration acreage and high values assume upper bound restoration acreage amounts ( see Section X E d of this preamble). d Total monetary value based on total values associated with restoration is not discounted ( see Section E. 2 for detail).

b. Estimated Benefits and Costs of the Preferred Option Table X   45 presents the total annual costs of the preferred regulatory option for the North Atlantic region. The estimated pre tax cost for facilities located on estuaries or tidal rivers is $ 17.58 million and, for ocean located facilities, $ 0.57 million. The total annual cost is $ 18.15 million.

TABLE X   44.   TOTAL ANNUAL COSTS FOR THE NORTH ATLANTIC REGION ( PRE TAX) AS OF 2005 ( IN 2002$, MILLIONS)

Estuary/ Tidal/ Total River Ocean Total North Atlantic ............................................................................................................................... $ 17.58 $ 0.57 $ 18.15 Table X   46 presents EPA's estimates of the total benefits from impingement and entrainment reduction in the North Atlantic region under the preferred option. The estimated impingement and entrainment reduction benefits under the preferred option range from $ 14.84 to $ 28.57 million per year ( 2002$). Combining the estimated cost and benefit values, the estimated net benefits of installing the preferred option range from negative $ 3.31 million to positive $ 10.42 million ( 2002$).

VerDate Jan< 31> 2003 21: 28 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13578 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules TABLE X   46.   ANALYSIS OF COSTS AND BENEFITS OF THE PREFERRED OPTION FOR THE NORTH ATLANTIC REGION ( MILLIONS 2002$)

Before discounting Discounted using 3% discount rate Discounted using 7% discount rate Low High Low High Low High Annual Use Benefits Commercial a, b ................................................................. $ 0.08 $ 0.08 $ 0.07 $ 0.07 $ 0.06 $ 0.06 Recreational a, b ................................................................ 0.88 0.88 0.76 0.76 0.65 0.65 Aggregate Use Benefits ................................................... 0.96 0.96 0.83 0.83 0.71 0.71 Annual Nonuse Benefits c Restoration Based Nonuse Benfits d ............................... 14.17 26.87 14.17 26.87 14.17 26.87 Total Annual Benefits Total Benefits ( aggregate use + restoration based nonuse values) ................................................................... 15.13 27.83 15.00 27.70 14.88 27.58 Total Restoration based Benefits d .................................. 14.84 28.57 14.84 28.57 14.84 28.57 Annualized Costs Total Costs ....................................................................... 18.15 18.15 18.15 18.15 18.15 18.15 Net Annual Benefits ( Benefits   Costs)

Net Benefits ..................................................................... ( 3.02) 9.68 ( 3.15) 9.55 ( 3.27) 9.43 Restoration based Net Benefits ....................................... ( 3.31) 10.42 ( 3.31) 10.42 ( 3.31) 10.42 Note: Sum of components may not equal totals due to rounding. a Welfare losses represent losses due to both impingement and entrainment because recreational estimates cannot be presented separately for these categories. Commercial/ recreational use values are annual values derived in Section X C. b Commercial and recreational losses are presented undiscounted, and discounted at 3% and 7%. There are no low or high estimates for welfare losses. c Nonuse values are not discounted. Values are based on nonuse values for SAV and wetland restoration for the populations in counties abutting affected water bodies. Low values assume lower bound restoration acreage and high values assume upper bound restoration acreage amounts ( see Section X E d of this preamble). d Total monetary value based on total values associated with restoration is not discounted ( see Section E. 2 for detail).

2. Benefit Cost Analysis of the Preferred Option for the Northern California Region a. Total Monetary Value of Baseline Impingement and Entrainment Losses in the Northern California Region Table X   47 presents EPA's estimates of the monetary value of baseline impingement and entrainment losses at cooling water intake structures in the Northern California region. As noted above, EPA did not estimate nonuse values of impingement and entrainment losses for the Northern California region analysis; data aren't available to support use of the restoration based approach for the North California region. The estimated use value of fishery resources lost to impingement and entrainment in the Northern California region ranges from $ 1.1 million to $ 1.49 million per year ( 2002$).

TABLE X   47.   ANNUAL VALUES OF THE BASELINE FISHERY LOSSES FROM IMPINGEMENT AND ENTRAINMENT IN THE NORTHERN CALIFORNIA REGION ( MILLIONS 2002$)

Before discounted Discounted using 3% discount rate Discount using 7% discount rate Use Value of the Resources Lost Commercial Use a b .................................................................................................................................. $ 0.06 $ 0.05 $ 0.05 Recreational Use a b ................................................................................................................................. 1.43 1.22 1.05 Total Use Benefits ................................................................................................................................... 1.49 1.27 1.10 Note: Sum of components may not equal totals due to rounding. a Welfare losses represent losses due to both impingement and entrainment because recreational estimates cannot be presented separately for these categories. b Commercial and recreational losses are presented undiscounted, and discounted at 3% and 7%. There are no low or high estimates for welfare losses.

VerDate Jan< 31> 2003 21: 12 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13579 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules b. Estimated Benefits and Costs of the Preferred Option for the Northern California Region Table X   48 presents the total annual costs of the preferred regulatory option for the Northern California region. The estimated pre tax cost for facilities located on estuaries or tidal rivers is $ 6.6 million and, for ocean located facilities, $ 13.5 million. The total annualized cost is $ 20.1 million.

TABLE X   48.   TOTAL ANNUAL COSTS FOR THE NORTHERN CALIFORNIA REGION ( PRE TAX) AS OF 2005 ( IN 2002$, MILLIONS)

Estuary/ Tidal River Ocean Total Northern California ................................................................................................................................... $ 6.60 $ 13.50 $ 20.10 Table X   49 presents EPA's estimates of the total use benefits from impingement and entrainment reduction at cooling water intake structures in the Northern California region under the preferred option. The estimated use benefits of impingement and entrainment reduction under the preferred option range from $ 0.62 to $ 0.81 million per year ( 2002$), depending on the factor for discounting the use value of lost resources. EPA did not estimate net benefits in CA due to the lack of information on nonuse.

TABLE X   49.   ANALYSIS OF COSTS AND BENEFITS OF THE PREFERRED OPTION IN THE NORTHERN CALIFORNIA REGION ( MILLIONS 2002$)

Before discounting Discounted using 3% discount rate Discounted using 7% discounted rate Annual Use Benefits Commercial a b .......................................................................................................................................... $ 0.02 $ 0.02 $ 0.02 Recreational a b ......................................................................................................................................... 0.79 0.66 0.60 Total Use Benefits ................................................................................................................................... 0.81 0.68 0.62 Nonuse Benefits ...................................................................................................................................... ( c) .................... ....................

Annualized Costs Total Costs ............................................................................................................................................... 20.10 20.10 20.10 Net Annual Benefits ( Benefits   Costs)

Total Net Benefits .................................................................................................................................... ( c) ( c) ( c)

Note: Sum of components may not equal totals due to rounding. a Welfare losses represent losses due to both impingement and entrainment because recreational estimates cannot be presented separately for these categories. b Commercial and recreational losses are presented undiscounted, and discounted at 3% and 7%. There are no low or high estimates for welfare losses. c Not estimated.

G. Break Even Analysis Estimating nonuse values is an extremely challenging and uncertain exercise, particularly when primary research using stated preference methods is not a feasible option ( as is the case for this rulemaking). In the preceding section, EPA described possible alternative approaches for developing nonuse benefit estimates based on benefits transfer and associated methods. Due to the uncertainties of providing estimates of the magnitude of nonuse values associated with the regulation, this section provides an alternative context with which to consider the potential magnitude of nonuse values. The approach used here applies a `` breakeven analysis to identify what nonuse values would have to be in order for the proposed option to have benefits that are equal to costs. The break even approach uses EPA's estimated commercial and recreational use benefits for the rule and subtracts them from the estimated annual costs. The resulting `` net cost'' enables one to work backwards to estimate what nonuse values would need to be ( in terms of willingness to pay per household per year) in order for total annual benefits to equal annualized costs. Table X   50 provides such an assessment for the marine resources impacted in the two regions for which commercial and recreational benefit estimates are available to date. The table shows the values using a seven percent discount rate.

VerDate Jan< 31> 2003 21: 22 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13580 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules TABLE VII   50.   IMPLICIT NON USE VALUE   BREAK EVEN POINTS FOR REGIONAL BENEFIT COST ANALYSIS, USING A 7% DISCOUNT RATE Study region Use benefits 1 Compliance costs 1 Net costs 2 Number of households ( millions) 3 Break even nonuse WTP per household North Atlantic ........................................................................................... $ 0.70 $ 18.15 $ 17.45 Abutting Counties ............................................................................. .................... .................... .................... 3.65 $ 4.78 Within 32.4 Diles ............................................................................... .................... .................... .................... 4.20 4.15 Statewide .......................................................................................... .................... .................... .................... 5.14 3.39 Northern California ................................................................................... 0.64 20.10 19.46 Abutting Counties ............................................................................. .................... .................... .................... 2.38 8.18 Within 32.4 Miles .............................................................................. .................... .................... .................... 2.50 7.78 All N. CA Counties ............................................................................ .................... .................... .................... 4.99 3.90 Statewide .......................................................................................... .................... .................... .................... 11.51 1.69 1 Millions of 2002$ s per year, from 2/ 19/ 03 NODA: Tables X   53 and X   56 2 Annualized compliance costs minus annual use benefits only ( millions 2002$ s) 3 Millions of households:( a) in abutting counties only ( b) within 32 miles of impacted marine resources, ( c) and ( d) statewide ( or, for northern half of CA). Sources: US Census 2000 ( BLS): http:// factfinder. census. gov; 4 Dollars per household per year that, when added to use benefits, would yield a total annual benefit ( use plus nonuse) equal to the annualized costs.

As shown in Table X   50, nonuse values per household for the affected marine resources in the region would have to amount to at least $ 4.78 per year to residents in the North Atlantic region   if assuming that only households in abutting counties have nonuse values for the affected marine resources   in order for the proposed option to have total benefits ( annual use plus nonuse values) that would equal or exceed the estimated annual compliance costs for the proposed option. For households within 32.4 miles of the impacted resources, nonuse values would have to equal $ 4.15 per year to have total benefits equal the costs of the proposed option. If nonuse values are considered for all households in the coastal states of the region ( CT, ME, MA, NH, and RI), then the break even nonuse value would need to be only $ 3.39 per household. For the Northern California region, the `` break even'' nonuse willingness to pay ( WTP) per household would need to be $ 8.18, based solely on households in coast abutting counties only. For households within 32.4 miles of the impacted resources, nonuse values would have to equal $ 7.78 per year to have total benefits equal the costs of the proposed option. This level of breakeven nonuse value would decline to $ 3.90 if all households in the northern part of California are considered, and declines further to $ 1.69 per household per year if the costs are spread over all households statewide. While this approach of backing out the `` breakeven'' nonuse value per household does not directly answer the question of what nonuse values might actually be worth for the 316b rulemaking, these results do frame the question with a useful perspective that appeals to common sense and facilitates policy making decisions. The breakeven approach poses the question: `` are the implicit non use WTP estimates per household at plausible levels, given empirical evidence available from the existing body of empirical research?''. EPA requests comment on whether these values are plausible as an average across all households in the target area, and data or research that addresses this question.

XI. Implementation and Other Regulatory Refinements A. Definition and Methods for Determining the `` Calculation Baseline''

EPA received a number of comments on the definition and methods associated with the calculation baseline during the comment period for the proposed Phase II rule. This calculation baseline sets a hypothetical baseline against which compliance with the proposed technology based performance standards in § 125.94 is determined ( see 67 FR 17176). The calculation provides facilities a consistent basis for determining compliance and allows them to take credit for fish protection technologies already in place at their facility. EPA proposed in § 125.93 ( see 67 FR 17221) that the `` calculation baseline was an estimate of impingement mortality and entrainment that would occur at your site assuming you had a shoreline cooling water intake structure with an intake capacity commensurate with a once through cooling water system and with no impingement and/ or entrainment reduction controls.'' Some commenters stated that, in general, the proposed definition was too vague. They added that the regulated industry as well as the permitting authority would be better served if there were more specific design criteria included in the definition. In response to these comments, EPA is considering and is requesting comments on adding the following specifications to the definition:   Baseline cooling water intake structure is located at, and the screen face is parallel to, the shoreline. EPA is considering that it may be appropriate to allow credit in reducing impingement mortality from screen configurations that employ angling of the screen face and currents to guide organisms away from the structure before they are impinged.   Baseline cooling water intake structure opening is located at or near the surface of the source waterbody. This may be appropriate to allow credit in reducing impingement mortality or entrainment due to placement of the opening in the water column.   Baseline cooling water intake structure has a traveling screen with the standard 3  8 inch mesh size commonly used to keep condensors free from debris. This would allow a more consistent estimation of the organisms that are considered `` entrainable'' vs. `` impingeable'' by specifying a standard mesh size that can be related to the size of the organism that may potentially come in contact with the cooling water intake structure.   Baseline practices and procedures are those that the facility would maintain in the absence of any operational controls implemented in whole or in part for the purpose of reducing impingement mortality and entrainment. This would recognize and provide credit for any operational measures, including flow or velocity VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13581 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules reductions, a facility had adopted that reduce impingement mortality or entrainment. If all of the above specifications are determined to be appropriate for the baseline cooling water intake structure that is used to determine the calculation baseline, EPA would modify the regulatory definition at proposed § 125.93 to read as follows:

Calculation baseline means an estimate of impingement mortality and entrainment that would occur at your site assuming ( 1) the cooling water system has been designed as a once through system; ( 2) the opening of the cooling water intake structure is located at, and the face of the standard 3  8 inch mesh traveling screen is oriented parallel to, the shoreline near the surface of the source waterbody; and ( 3) the baseline practices and procedures are those that the facility would maintain in the absence of any operational controls, including flow or velocity reductions, implemented in whole or in part for the purposes of reducing impingement mortality and entrainment.''

EPA also considered whether basing the calculation baseline on a shoreline intake would penalize facilities with constructed waterways such as intake canals or intake bays, if these configurations had a higher potential for impingement and entrainment than a `` shoreline'' intake located on the open waterbody. Basing calculations on this hypothetical open waterbody intake could potentially result in such facilities having to reduce impingement and entrainment by more than the specified performance ranges. This is not EPA's intent. Rather, facilities should demonstrate they have ( or will) reduce impingement mortality or entrainment by the percentages established in the proposed performance ranges when compared to an intake at which no measures have been taken to reduce impingement mortality and entrainment. In the case of an intake located on the `` shoreline'' of an intake canal or intake bay, EPA would consider the intake's location on the constructed waterway to be the shoreline for purposes of the calculation baseline. EPA solicits comment on these design specifications for inclusion or exclusion in the definition of the calculation baseline. In particular, EPA is interested in whether it would be redundant to include all of the hypothetical design criteria. EPA requests comments on any other design criteria that may be appropriate to set a consistent and reproducible baseline upon which to determine compliance with the proposed performance standards. EPA also requests comment on whether these design criteria will provide the intended credit in the compliance analyses to those facilities which have implemented technologies or operational measures that reduce impingement mortality and/ or entrainment, without creating unintended consequences such as the opportunity to seek credit for hypothetical `` reductions'' from unreasonable claims regarding baseline operational measures. One commenter suggested that determination of the calculation baseline for entrainment be supplemented with an optional alternative, `` As Built'' approach. Under this approach, a facility would determine the baseline for calculating entrainment reduction by either: ( 1) Using actual historical measurements of entrained organisms before installation of the new intake technology; or ( 2) sampling immediately in front of the new technology and enumerating organisms of a size that will pass through a standard 3  8 inch screen. To determine entrainment reduction, the facility would then sample and enumerate entrained organisms behind the new technology or at the outfall. This second option would eliminate the need for predictive estimates of baseline entrainment occurring at a facility and would not require collection of historical data nor the use of estimations that may increase uncertainty. Potential benefits cited for using this alternative `` As Built'' approach for estimating compliance with performance included that ( 1) the facility would demonstrate entrainment reductions directly in an easily verifiable manner that does not rely on hypothetical calculations; ( 2) facilities could install new technologies sooner than they would under the other calculation baseline approach, because pre deployment studies would not be necessary; and ( 3) the baseline numbers would be actual samples of entrained or entrainable organisms. EPA requests comments on providing this approach as an optional alternative for determining the calculation baseline for entrainment. It should be noted that the commenter states that the `` As Built '' approach for determining the calculation baseline would not be appropriate for impingement as it is highly speciesspecific and life stage specific with no reliable way to measure `` impingeable'' organisms outside of the cooling water intake structure. The commenter suggests that to determine the calculation baseline for impingement mortality the only valid approach would be to collect samples before the new intake technology is deployed so that the baseline impingement ( predeployment can be compared to the post deployment impingement to estimate the percent reduction in impingement mortality attributable to the technology. EPA requests additional comment on the applicability of an `` As Built'' approach to estimate the calculation baseline for impingement mortality. The proposed Phase II preamble language ( see 67 FR 17176) stated that the calculation baseline could be estimated by evaluating existing data from a nearby facility. Some commenters requested that the calculation baseline be allowed to be estimated using data from facilities that are not located nearby or that are located on another waterbody as long as the two facilities had closely comparable environmental conditions including similar locations and similar species that would be impinged and entrained. These same commenters also requested that the proposed rule retain flexibility for the facility in choosing the location of the hypothetical shoreline intake as long as the location is one where an intake might have been placed in the exercise of sound engineering judgment, without regard for fish protection. Another commenter stated that assessing the mere presence or absence of organisms at a nearby facility or in the same waterbody may not accurately characterize the potential for impingement and entrainment at a future cooling water intake structure. This commenter also indicated that sitespecific interactions of organisms with the hydrology of the source waterbody and the cooling water intake structure configuration would confound the assessment and that composition and abundance of impingement of organisms can be very different for two cooling water intake structures located close to one another. EPA requests additional comment on the appropriateness of allowing facilities to define the calculation baseline using data from other facilities, what types of other facilities might be appropriate for this purpose, and whether the variability introduced due to site specificity is greater than that due to normal fluctuations in natural systems.

B. Options for Evaluating Compliance With Performance Standards EPA received numerous comments requesting clarification on how compliance with the proposed performance standards for reducing impingement mortality by 80   95% and entrainment by 60   90% would be determined. For both impingement mortality and entrainment, EPA is evaluating two basic methods for VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13582 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules determining a percent reduction: ( 1) Consideration of all fish and shellfish species that have the potential to be impinged or entrained, or ( 2) consideration of fish and shellfish from only a subset of species determined to be representative of all the species that have the potential to be impinged or entrained. For either approach, species impinged or entrained may be measured by counting the total number of individual fish and shellfish, or by weighing the total wet or dry biomass of the organisms. These approaches are described in more detail below. EPA invites comments on these approaches and whether EPA should require facilities to use a specific method or only provide guidance.

All Species Approach For determining compliance with the impingement mortality and entrainment standards, EPA is considering requiring that all species of fish and shellfish present at the cooling water intake structure and having the potential to be impinged be included in the measurement. Under this approach, the permittee would measure either the total number or the total biomass of the fish and shellfish impinged ( without regard to their taxonomic grouping) and use this number to compare to the calculation baseline to determine compliance with the impingement mortality reduction performance standards. This approach would be the simplest conceptually to implement since only the total number or mass of impinged organisms would need to be measured. However, this approach would have the limitation that information on efficacy of the technology related to each species would not be collected, and all species would be treated as equivalent, without regard to their relative ecological, economic, recreational, or cultural importance. EPA is similarly considering requiring that entrainment losses also be measured by counting the total numbers of organisms entrained. This approach has been commonly used in freshwater rivers and streams and produces either a total number of undifferentiated eggs and larvae entrained, or an identification of the entrained eggs and larvae by species or family. Several commenters emphasized that a permittee should not be required to prove reduced entrainment of every entrained species by at least 60 percent. These commenters also stated that the difficulty and cost of taxonomic classifications makes species specific monitoring unreasonable, and that classification is not possible for early life stages of some species. If EPA were to require the use of an approach that considers the total number of all fish and shellfish that have the potential to be impinged or entrained, regardless of species, language similar to the following would be added at proposed § 125.94( b)( 5):

( 5) Compliance with impingement mortality and entrainment performance standards in paragraphs ( b)( 1) through ( 4) above must be determined based on a comparison of the enumeration of all fish and shellfish impinged and killed and entrained with those estimated to be impinged and killed and entrained at the calculation baseline.

EPA requests comment on the approach of enumerating all fish and shellfish, regardless of their taxonomy in determining compliance with the performance standards for impingement mortality and entrainment and the regulatory language above. EPA is also accepting comment on the advantages and disadvantages of using the absolute number of organisms impinged or entrained as opposed to using wet or dry total weights of biomass. For measuring compliance with the entrainment reduction performance standard, several commenters suggested that the entrained biomass could be measured by collecting entrained organisms from the outfall or other appropriate monitoring location where a representative sample can be taken. This mass would then be compared to the mass of eggs and larvae that would have been entrained at the calculation baseline to determine if there is a 60 percent reduction or better. However, EPA is concerned that if a facility uses biomass, the weights may not be substantial enough to yield useable data since most entrained organisms are at the egg or larval stage. EPA requests comment on the feasibility of using biomass for measuring compliance with the entrainment reduction standard.

Representative Species Approach Another approach to determine compliance with the impingement mortality and entrainment performance standard involves considering a subset of the species that are representative of all species that are susceptible to impingement or entrainment in the waterbody that needs to be protected. This approach would require the permittee to identify representative important/ indicator species ( RIS), as opposed to considering all species present at the cooling water intake structure, for use in calculating compliance with the performance standards. If this approach were allowed, EPA is considering requiring that the list of RIS be developed by the facility, in consultation with the Director and Federal, State and Tribal fish and wildlife management agencies using available data. EPA might also require the concurrence of the Director. Historically, the term RIS has been defined in different ways. EPA's 1977 Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316( b) P. L. 92   500 uses the concept of `` critical aquatic organisms.'' This term is used in a manner similar to RIS. The 1977 Guidance states that `` critical aquatic organisms'' are `` those species which would be involved with the intake structure and are: ( 1) Representative, in terms of their biological requirements, of a balanced, indigenous community of fish, shellfish, and wildlife; ( 2) commercially or recreationally valuable ( e. g., among the top ten species landed   by dollar value); ( 3) threatened or endangered; ( 4) critical to the structure and function of the ecological system ( e. g., habitat formers); ( 5) potentially capable of becoming localized nuisance species; ( 6) necessary, in the food chain, for the well being of species determined in 1   4; ( 7) one of 1   6 and have high potential susceptibility to entrapmentimpingement and/ or entrainment; and ( 8) critical aquatic organisms based on 1   7, are suggested by the applicant, and are approved by the appropriate regulatory agencies `` ( see DCN 4   0006). In EPA's section 316( a) regulations, the term `` representative important species ( RIS)'' is used and defined as `` species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made'' ( see 40 CFR 125.71). Under these same regulations, the term `` balanced, indigenous community'' is defined as `` a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by lack of domination by pollutant tolerant species.''( See 40 CFR 125.71). The section 316( a) regulations require that in selecting RIS, special consideration be given to species mentioned in applicable water quality standards. It further requires that after the discharger submits its detailed plan of study, the Director either approve the plan or specify any necessary revisions to the plan ( see 40 CFR 125.72). Other entities, including some States, use the concept of RIS defined as those species selected by a discharger and VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13583 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules approved by the state that exhibit one or more of the following characteristics: Species that are sensitive to adverse harm from operations of the facility ( for example, heat sensitive species); species that use the local area as spawning or nursery grounds, or both, including those species that migrate past the facility to spawn; species of commercial or recreational value or both; species that are habitat formers and are critical to the functioning of the local ecosystem; species that are important links in the local food web; rare, threatened, or endangered species; or potential nuisance organisms likely to be enhanced by plant operations. In some cases, the permitting authority allows the permittee to identify RIS on a site specific basis ( see State of Maryland comments on proposed Phase II rule). EPA is considering an approach that employs a RIS or `` critical aquatic organisms'' approach to determine compliance with the impingement mortality performance standards. Facilities would be required to identify all species being impinged ( or having the potential to be impinged) by the cooling water intake structure. From that total list of species, the facility would then choose a limited number of organisms based on a definition of `` critical aquatic organisms'' provided in the regulations. EPA requests comment on whether 10 to 15 species might be an appropriate number to protect the types of species and ecosystem functions discussed in the above discussions of representative indicator species and critical aquatic organisms. EPA is considering using the same term `` critical aquatic organisms'' since it has been associated with section 316( b) requirements in the past. EPA is concerned that the RIS term, which has been used in other regulatory programs, may have conflicting programmatic issues and definitions associated with it that could not be anticipated. EPA would consider using the portions of the above language from the definition provided in the 1977 Guidance as it provides a reasonable, but flexible, framework for determining a list of fish and shellfish that are representative of all the species that have the potential to be impinged or entrained at cooling water intake structures. Changes to the language above might include modifying criteria number 8 to require the following:

( 8) critical aquatic organisms based on 1   7, are developed by the applicant, with the concurrence of the Director and in consultation with Federal, State, and Tribal fish and wildlife management agencies with responsibility for fisheries and wildlife. The definition would be added to the proposed rule at § 125.93. As discussed above, EPA is also considering a consultation role for the Director rather than one of concurrence. Compliance with the impingement mortality and entrainment performance standards could then be measured by either counting the total number of individuals of all the critical aquatic organisms impinged and killed or entrained, or by measuring the total biomass ( wet or dry) of the critical aquatic organisms impinged and killed or entrained. This value would then be compared to the calculation baseline to determine compliance with the performance standard. EPA is also considering two options for making the compliance determination using the critical aquatic organism approach. The first option would be to determine compliance based on a total enumeration of individuals from all of the listed critical aquatic organism species, and the second option would be to base compliance on a separate analysis to determine the reduction in impingement mortality and entrainment for each species. If this critical aquatic organism approach is used, EPA might adopt regulatory language at § 125.94( b)( 5) for Option 1 as follows:

( 5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs ( b)( 1) through ( 4) above must be determined based on a comparison of the enumeration of individuals from all of the listed critical aquatic organism species impinged and killed and entrained with the total number of listed critical aquatic organism species estimated to be impinged and killed and entrained at the calculation baseline.

If this critical aquatic organism approach is used for Option 2, EPA might adopt regulatory language at § 125.94( b)( 5) for Option 2 as follows:

( 5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs ( b)( 1) through ( 4) above must be determined based on a comparison of the enumeration of individuals from each of the listed critical aquatic organism species impinged and killed and entrained with each of those estimated to be impinged and killed and entrained at the calculation baseline.

EPA invites comments on the use of critical aquatic organism approach, the above definition for critical aquatic organisms, the above regulatory language above, and the two options ( a total enumeration of all organisms from the critical aquatic organism species or a separate analysis for each species) for determining compliance with the impingement mortality and entrainment performance standards. In addition to the potential refinements discussed above EPA is also considering and requests comment on whether the Agency should allow the Director to determine how best to measure compliance, either programmatically or as part of individual permit decisions. EPA recognizes that a challenge in determining compliance with both the impingement mortality and entrainment performance standards is how to address the number of moribund or dead fish that wash up against the intake structure or become entrained. Under ideal circumstances, fish that were previously injured or killed from weather related phenomena, or other episodic fish kills, would be removed from the measurement in order to more accurately determine the control technology performance. To ensure consistency with the use of the term moribund among permittees, EPA is considering adding the following definition of moribund ( A Dictionary of Ecology, Evolution, and Systematics, Cambridge University Press, 1982) to § 125.93:

Moribund means dying; close to death.

EPA is considering placing in the regulatory language the ability for a facility to take into account moribund fish and shellfish for determining compliance with the impingement mortality and entrainment performance standard using actual or historical data ( if representative of current conditions). If EPA allowed the exclusion of already moribund fish and shell fish in determining compliance with the performance standards, the Agency might adopt regulatory language at § 125.94( b)( 5) as follows:

( 5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs ( b)( 1) through ( 4) above must be determined based on a comparison of * * *. The number of moribund organisms that were previously injured or killed prior to encountering the intake structure must be removed from the calculation if data are available.

EPA invites comments on including this regulatory language in the regulation at § 125.94 to allow facilities to exclude already moribund fish and shellfish, if data are available. EPA also invites comment on whether a facility should have the opportunity to remove the number of moribund organisms from the calculation but not be required to do so ( as in the sample regulatory language above).

Other Issues To calculate the mass of organisms entrained for the calculation baseline VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13584 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules facility and the existing plant with new intake technology installed, several commenters proposed the following approach: The entrained biomass could be measured by sampling the waterbody near the intake ( the hypothetical shoreline intake for the baseline plant and the existing or relocated intake for the future complying plant). To calculate the mass of organisms that would be entrained both by the hypothetical shoreline intake without any protective technology and by whatever new proposed intake technologies are being assessed, the density of entrainable organisms present in the samples would be used ( number/ volume). An important consideration in evaluating entrainment is the element of time, i. e., the density of entrainable organisms will fluctuate. EPA is soliciting comment on the use of total biomass or density in predicting or determining the entrainment reduction that would occur at a cooling water intake structure. EPA received numerous comments requesting clarification of the averaging period for determining the percent reduction required by the impingement mortality and entrainment performance standards. The commenters stated that due to significant natural temporal and spatial variability in fish abundance and distribution, a short term averaging period may not be appropriate. Entrainment may be near zero during months when there are no entrainable organisms near the intake. Additionally, the density of aquatic populations varies naturally over the longer term. Some commenters suggested that the averaging period for determining reductions should be two to five years to verify that the technology is achieving reductions within the ranges specified for the performance standards. This could involve measuring the percent reductions over the entire monitoring period. EPA is considering specifying an averaging time for determining compliance with performance standards over 1 year, 3 years, or a running average over the entire permit term ( 5 years). In addition, EPA is considering requiring the use of basic arithmetic means as the averaging methodology. EPA is requesting comment on the time frames and averaging method discussed above. In addition, EPA requests comment on the appropriate methodology for determining the averaging period. EPA is also considering leaving it to the Director to determine appropriate averaging periods and methodologies, either programmatically or on a sitespecific basis, and requests comment on this approach.

C. Compliance Timelines, Schedules, and Determination The proposed rule states that Phase II existing facilities would have to comply with the proposed rule requirements when a NPDES permit containing requirements consistent with the proposed Subpart J requirements is issued to the facility ( see proposed § 125.92). Under existing NPDES program regulations, this would occur following publication of the final rule when an existing NPDES permit is reissued, or when an existing permit is modified, or revoked and reissued. EPA is considering options that would require full compliance with the rule after the effective date, similar to what EPA did in the Concentrated Animal Feeding Operations Rule, to the extent the best technologies will not be available immediately after promulgation of the final rule. As discussed below, the nature of this regulation is such that facilities may need to test and verify the efficacy of the technology option that they choose. ( 68 FR 7176, 7214 Feb. 12, 2003). EPA requests comment on this approach. Commenters raised numerous issues regarding the proposed implementation and compliance schedules. Key comments include concern that the proposed rule does not provide sufficient time for permittees to develop necessary information, prepare the permit application, and come into compliance; suggestions that each permit renewal need not encompass a complete re application and redevelopment of the permit; questions regarding how the proposed requirements will be enforced ( i. e., what constitutes compliance); and a general request for additional clarification about implementation timing issues ( e. g., effective date). Several commenters indicated that the proposed requirement to submit data associated with the Comprehensive Demonstration Study at least 180 days prior to permit renewal is unrealistic. These commenters indicated that sufficient time is needed to collect data and prepare the permit application, as well as to design and test equipment. Commenters suggested various means by which time could be built into the implementation schedule, including allowing for the use of compliance schedules, phased compliance requirements, and providing a fixed period of time for facilities to evaluate how they will comply and submit an application. The proposed 180 day requirement is based on the existing NPDES permit program requirement for renewal of existing permits ( 40 CFR 122.21( d)( 2)). EPA proposed this time period, in part, to ensure consistency with the existing NPDES program. The 180 day time period ensures that permit writers have sufficient time to review NPDES permit applications, which for Phase II existing facilities will often be complex and include considerable amounts of information. Some commenters have suggested EPA allow for the use of compliance schedules for Phase II existing facilities to conform to newly promulgated section 316( b) requirements. NPDES regulations at § 122.47 allow for the use of compliance schedules in NPDES permits by allowing permittees additional time to achieve compliance with the CWA and applicable regulations. Examples of situations where compliance schedules have been used include, but are not limited to, where new or revised effluent limitations guidelines were promulgated prior to 1989, or where new water quality standards are developed. EPA believes that the use of compliance schedules in the context of section 316( b) warrants consideration because such schedules are intended to allow permittees additional time where it clearly is necessary to achieve compliance. Compliance schedules, in association with the proposed Phase II regulations, would allow facilities whose NPDES permit would be reissued within the first few years after promulgation, additional time during the term of the permit to collect the information needed for the analyses required for the permit application, and/ or to design, install, and optimize technologies to meet the performance standards. For example, facilities that would be issued a revised NPDES permit six months after the Phase II rule was published may not have provided the Director with information on their cooling water intake structure, and even if they had, it may not have contained the regulation specific information such as the Impingement Mortality and Entrainment Characterization Study, the Design and Construction Technology Plan, or the Verification Monitoring Plan. In addition, the facility may not have assessed feasibility and certainly would not have begun construction of technologies. Use of compliance schedules under the NPDES permit program would require that the permit writer develop a schedule that is reasonable and that will ensure that the VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13585 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules 27 For example, one commenter suggested allowing two years for baseline ecological studies and economic studies; one year to proposed and install technologies; and two years to monitor effectiveness of changes. facility is brought expeditiously towards compliance. Some commenters suggested that EPA provide for a delayed or phased compliance date that would allow Phase II existing facilities to have, at least, a specified, minimum period of time to conduct their study and implement appropriate technologies. Commenters questioned whether facilities with permit renewal dates shortly after the Phase II rule becomes final would have sufficient time to conduct the required characterization studies and implement enhanced control technologies. As a result, they suggested that some specified period of time be provided to all Phase II existing facilities under the rule. Generally, suggestions regarding the specific amount of time necessary ranged from two or three years to a full 5 year permit term ( i. e., allow applicants to collect data and perform analyses within the term of the permit). 27 EPA is considering and requests comment on whether the final rule should allow facilities required to apply for a permit renewal shortly after promulgation of the Phase II rule additional time to complete the studies associated with submitting a permit application. EPA is considering the following options: ( 1) Allowing applicants whose permits must be renewed in the first year after promulgation of the Phase II rule to submit application materials required by the Phase II rule one year after their current permit expires; and ( 2) allowing a two year extension in the deadline for submitting Phase II application materials. Commenters also questioned whether the study and data requirements specified under the proposed Phase II rule will be fully applicable to all subsequent 316( b) permit renewals for a given facility ( i. e., the second, third, or subsequent rounds of 316( b) permit renewals that take place following publication of the final Phase II rule). Some suggested that neither the preamble nor the proposed rule covering the Comprehensive Demonstration Study make clear whether the information required to be submitted is required with each NPDES permit renewal. Generally, commenters asserted that detailed permit evaluations should not be required every 5 years ( i. e., with each renewal cycle). One commenter suggested that a full reassessment should only be required every third permit term ( every 15 years). EPA did not discuss alternative permit application requirements for permit renewals in the proposed Phase II rule. The proposed Phase II rule specifies that with each 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 ( see proposed § 125.98( a)( 1)). EPA does not generally specify reduced permit application requirements for permit renewals under the NPDES program. Rather, permitted facilities and permit writers normally exchange the information specified in the relevant permit application requirements and the permit writer determines when the application is complete ( see 40 CFR 122.21( d)). It is not uncommon, however, that some existing information ( i. e., information submitted as part of an earlier permit application) remains part of a renewal application. EPA expects this to be true for Phase II existing facilities as well. Under the proposed Phase II rule, EPA has identified several categories of permit application data and information requirements. These requirements, which are reasonably general in nature, provide certain flexibility to applicants to update only the key parts of the application that reflect changes in environmental conditions or operations. For example, the proposed rule would allow Phase II existing facilities to submit a proposal for information as the first step in identifying the scope of the Comprehensive Demonstration Study ( see proposed § 125.95( b)( 1)). This proposed requirement would provide applicants with an opportunity to identify the information in the study that has changed and must be updated, as well as existing information that remains representative of current conditions. In fact, it specifically provides for inclusion of historical studies where relevant. It also provides for the use of historical impingement and entrainment data, provided they are representative of the current operation and biological conditions. The proposed requirements do ensure that the Director retains sufficient flexibility to require Phase II existing facilities to submit data needed to assess source waterbody conditions and design and operational conditions at the facility. EPA is evaluating an additional option that it believes would maintain the Director's ability to obtain the information needed to make informed decisions when writing NPDES permits for existing facilities with cooling water intake structures. The proposed rule requires that facilities submit all of the information required in § 122.21( r) and § 125.95 ( as applicable). EPA is considering whether to develop additional regulatory language that would allow the Director to relax the application information requirements if conditions at the facility and in the waterbody remain unchanged since the facility submitted their previous NPDES permit application, such that the information that they would submit would remain unchanged. Should this new regulatory language be implemented, the facility would be required to submit evidence that the conditions remain unchanged. This would serve to lessen the burden for information collection activities on the facility after the initial permit where section 316( b) requirements are placed in the NPDES permit as long as conditions remain unchanged. To demonstrate that operational conditions remain unchanged, the facility may rely upon data collected during the permit term, including facility operational data, monitoring, design information, and other data. To demonstrate that conditions in the waterbody remain unchanged, the facility may rely on monitoring and studies conducted by the facility, or data collected by other sources such as universities, federal, State, or local environmental and resource agencies, or other facilities located in close proximity. Determinations of unchanged conditions may rely upon demonstrations that there is no statistically significant changes in impingement and entrainment at the facility or in the densities of organisms in the vicinity of the cooling water intake structures, for example. If EPA decides to relax application requirements for permit renewals after a facility's initial permit implementing the Phase II regulations, the regulatory language of § 125.95( a) might be revised as follows:

( a)( 1) You must submit to the Director the application information required by 40 CFR 122.21( r)( 2), ( 3) and ( 5) and the Comprehensive Demonstration required by paragraph ( b) of this section at least 180 days before your existing permit expires, in accordance with Sec. 122.21( d)( 2). ( 2) In subsequent permit terms, the Director may approve a request to reduce the information required to be submitted in your permit application on the cooling water intake structure and the source waterbody, if conditions at your facility and in the waterbody remain unchanged since your previous application. You should submit your request for reduced cooling water intake structure and waterbody application VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13586 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules information to the Director at least 1 year prior to the expiration of the permit term. Your request must contain a list and justification for each information item in § 122.21( r) or § 125.95 that you determine has not changed since the previous permit application.

EPA requests comment on the two options described above. EPA specifically requests comments on whether an option like that in the suggested regulatory language above is appropriate to reduce the burden for NPDES permit applicants in subsequent permit terms or whether the option that would provide guidance and allow resubmittal of existing data and hence a reconfirmation of the data through the application process is needed to ensure accurate data for the Director. There would be companion language in § 125.98 requiring the Director to review and approve, approve with comments, or disapprove the request within 60 days of submittal by the applicant. EPA also requests comment on the specific time frames that would be appropriate for this option, and whether they should be specified by EPA or left up to the discretion of the Director. In addition to the concerns discussed above regarding the timing and content of application materials, some commenters also voiced concerns regarding how Directors will determine if a facility is in compliance with the requirements of the proposed rule. These commenters expressed concern that, given the difficulty of predicting the performance of distinct cooling water intake control technologies, it is not reasonable to expect every Phase II existing facility to be able to ensure that it will achieve reductions in impingement and entrainment that are consistent with the proposed performance standards within the first permit term and, therefore, it would be unfair to enforce the proposed standards until each facility has had a reasonable period to achieve compliance. One comment expressed by these groups is that proper design, installation, operation, and maintenance of technologies reasonably likely ( based on appropriate characterization and study) to meet the performance standards should satisfy the permit terms and conditions ( i. e., be deemed compliance), at least until the second round of permitting occurs. Stated another way, commenters maintain that Phase II existing facilities should not be subject to immediate enforcement actions in the first permit term for failing to meet the proposed performance ranges ( i. e., a facility that properly designs, installs, operates and maintains cooling water intake structure control technologies but discovers, at or near the end of the first permit term, that it has not achieved the requisite level of impingement and entrainment reduction, should not be subject to enforcement for violating the section 316( b) requirements). EPA recognizes that significant variability in biological communities over seasons and other time periods ( for example, a period of peak larval abundance that typically occurs in the spring months), may complicate optimization of the performance of technologies for reducing impingement mortality and entrainment. EPA is considering the need for regulatory language that would allow facilities time to come into compliance if they choose to install technologies to meet the performance standards in proposed § 125.94. This would allow facilities a period of time to optimize technology( ies) so that they operate to minimize impingement mortality and entrainment. EPA is currently evaluating and considering allowing six months, one year, two years, or five years ( one permit term) for a facility to come into compliance after issuance of its permit. Example regulatory language for a new paragraph ( e) in § 125.94 might read as follows:

( e) If you propose to implement design and construction technologies or operational measures to meet the performance standards in § 125.94( b) or ( c), you will have an optimization period of [ six months/ one year/ two years/ five years] from the issuance of a permit requiring compliance with § 125.94( b) or ( c) after which you must comply with the standards.

In this case, the proposed paragraphs § 125.94( e) and ( f) would then become ( f) and ( g), respectively. EPA requests comments on these time frames and the suggested regulatory language above. EPA also requests comment on whether EPA should specify the length of the optimization period or whether the Director should make this decision.

D. Determining Capacity Utilization Rates At § 125.94( b)( 2), the proposed rule would require facilities with a capacity utilization rate of less than 15 percent to meet performance standards for reducing impingement mortality. § 125.94( b)( 3) would require facilities with a capacity utilization rate of 15 percent or more to meet performance standards both for reducing impingement mortality and for reducing entrainment. ( See 67 FR 17221.) As discussed in Section III above, the proposed Phase II rule defined capacity utilization based on the generation and capacity of the entire facility, including steam electric and non steam generators. ( See the proposed definition of `` capacity utilization rate'' at § 125.93, 67 FR 17220.) EPA is considering whether, for the purposes of implementing Section 316( b), defining capacity utilization based on the steam electric part of a facility better reflects a facility's potential for adverse environmental impact because only the steam electric generators use cooling water. Thus, EPA is considering refining its regulatory definition for `` capacity utilization rate'' at the proposed § 125.93 to reflect use of the steam electric part of a facility. If EPA were to make this change, the definition of `` capacity utilization rate'' in § 125.93 might be revised as follows ( new language is underlined):

Capacity utilization rate means the ratio between the average annual net generation of the steam electric part of a facility ( in MWh) and the total net capability of the steam electric part of a facility ( in MW) multiplied by the number of available hours during a year. The average annual generation must be measured over a five year period ( if available) of representative operating conditions.

EPA requests comment on this suggested refinement.

E. Clarifications and Corrections 1. Implementation Burden for Studies and Biological Data Collection EPA received comments concerning the information collection, study, and monitoring costs presented in the supporting Information Collection Request for Cooling Water Intake Structures for the Phase II Existing Facility Proposed Rule ( US EPA ICR No. 2060.01) ( February 2002). Commenters stated that the format was confusing and the detail provided in the ICR was insufficient to enable them to review and comment on these costs. To assist reviewers, EPA has placed additional information into the record summarizing the general derivation of information collection, study, and monitoring activity costs associated with the Phase II rule. Labor categories, labor rates, monitoring components, and associated costs are outlined and additional cost details are presented in summary tables to facilitate ease of review and understanding. Commenters also pointed out that EPA had inadvertently transposed the labor figures for statisticians and biological technicians when putting together the summary tables of costs. EPA has recalculated the ICR costs to rectify this error and has determined that costs will not change substantially. Labor costs associated with monitoring activities in the ICR were significantly higher than the labor for writing final reports and studies. Therefore, when the VerDate Jan< 31> 2003 19: 17 Mar 18, 2003 Jkt 200001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 19MRP2. SGM 19MRP2 13587 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Proposed Rules correction to the labor rates was made, the overall facility costs decreased. However, the decrease in facility costs due to the correction to the labor rates was offset by other changes that EPA has made to the ICR costs since proposal. Some commenters stated that the burdens for impingement and entrainment monitoring were too low. EPA has reviewed these burden estimates and has increased the burdens associated with impingement and entrainment monitoring associated with the Impingement Mortality and Entrainment Characterization Study. In addition, EPA has revised capital and O& M costs associated with the pilotscale studies some facilities may perform to reflect the assumption that only facilities which are projected to install new technologies will perform pilot studies, and to be proportional to the projected capital costs for installing these new technologies to comply with the rule. The following provides a summary of the effects of these corrections and updates on labor costs and overall costs for facilities, as well as total combined costs for States and facilities.

  Facility labor costs increased by 65% from $ 66,399,819 to $ 109,346,909 annually.   Facility capital and O& M costs decreased by 61% from $ 63,633,640 to $ 24,801,777 annually.   Total costs for facilities increased by 3.2% from $ 130,033,459 to $ 134,148,685 annually.   Total facility and State costs increased by 2.8% from $ 135,990,706 to $ 139,820,531 annually. The effects of the recalculation are summarized in more detail in a memorandum placed in the record ( see `` Updated Information Collection Costs for the 316( b) Phase II Notice of Data Availability, January 31, 2002).

2. San Onofre Impacts Discussion In response to comments received about inaccuracies related to facilityspecific impacts caused by impingement and entrainment discussed in EPA's Information Collection Request ( ICR), EPA provides the following clarification. Specifically, the ICR for the proposed rule described entrainment losses at San Onofre Nuclear Generating Station ( SONGS). EPA received updated information from SONGS facility scientists that clarified actual entrainment losses in normal ( non El Nino) years and described trends in shallow water and deepwater fish species affected by entrainment. In addition, prior to publication of the proposed rule, EPA concluded that kelp bed losses in proximity to the SONGS intake were attributable to turbidity increases caused by cooling water discharges, not cooling water withdrawals. The updated information for SONGS was placed in the preamble to the proposal ( see 67 FR 17138   17139), but was inadvertently omitted from the ICR. The final ICR will reflect the changes described above.

XII. General Solicitation of Comments EPA encourages public participation in this rulemaking and requests comments on this notice of availability supporting the proposed rule for cooling water intake structures for existing Phase II facilities. As stated in section II of this NODA, EPA is also reopening the comment period on all aspects of the proposal. EPA invites all parties to coordinate their data collection activities with the Agency to facilitate mutually beneficial and cost effective data submissions. Please refer to the FOR FURTHER INFORMATION CONTACT section at the beginning of this preamble for technical contacts at EPA.

Dated: March 12, 2003. G. Tracy Mehan, Assistant Administrator, Office of Water. [ FR Doc. 03   6453 Filed 3   18   03; 8: 45 am]

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