U. S. ENVIRONMENTAL PROTECTION AGENCY INFORMATION COLLECTION REQUEST FOR COOLING WATER INTAKE STRUCTURES PHASE II EXISTING FACILITY FINAL RULE December 23, 2003 TABLE OF CONTENTS 1 IDENTIFICATION OF THE INFORMATION COLLECTION . . . . . . . . . . . . . . . . . . 1 1a Title of the Information Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1b Short Characterization/ Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 NEED FOR AND USE OF THE COLLECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a Need/ Authority for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a( i) Need for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a( ii) Authority for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2b Practical Utility/ Users of the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3 NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3a Nonduplication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3b Public Notice Required Prior to ICR Submission to OMB . . . . . . . . . . . . . . . . 19 3c Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3d Effects of Less Frequent Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 3e General Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 3f Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 3g Sensitive Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 4 THE RESPONDENTS AND THE INFORMATION REQUESTED . . . . . . . . . . . . . . 25 4a Respondents/ SIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4b Information Requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4b( i) Data Items, Including Record Keeping Requirements . . . . . . . . . . . . . . 26 4b( ii) Respondent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 5 THE INFORMATION COLLECTED  AGENCY ACTIVITIES, COLLECTION, METHODOLOGY AND INFORMATION MANAGEMENT 50 5a Agency Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 5b Collection Methodology and Information Management . . . . . . . . . . . . . . . . . . . 50 5c Small Entity Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 5d Collection Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 6 ESTIMATING RESPONDENT BURDEN AND COST OF COLLECTION . . 53 6a Estimating Respondent Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 6b Estimating Respondent Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 6b( i) Estimating Labor Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 6b( ii) Estimating Capital and Operation and Maintenance Costs . . . . . . . . . . . 69 6c Estimating Agency Burden and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 6d Estimating the Respondent Universe and Total Burden and Costs . . . . . . . . . . . 73 6e Bottom Line Burden Hours and Costs Tables . . . . . . . . . . . . . . . . . . . . . . . . . . 74 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release ii 6e( i) Respondent Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 6e( ii) Agency Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 6f Reasons For Change In Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 6g Burden Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 APPENDIX A Respondent Burden and Cost Analysis for the Information Collection Requirements of the Final Section 316( b) Existing Facility Proposal LIST OF TABLES Table 1. Selected NPDES State Statutory/ Regulatory Provisions Addressing the Impact from Cooling Water Intake Structures . . . . . . . . . . . . . . . . . . . 14 Table 2. Industry Organization Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 3. Environmental Organization Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 4. Federal and State Government Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Table 5. Industry Categories and SIC Codes for Phase II Rule . . . . . . . . . . . . . . . . . . . . . . . . 25 Table 6. Number of Facilities Assumed to Comply with Information Collection Requirements During the ICR Approval Period by Year . . . . . . . . . . . . . . . . . . . . . . . . 52 Table 7. Impingement Mortality and Entrainment Characterization Study Sample Types . . . . . 58 Table 8. Average Burden per Facility for NPDES Permit Application Activities . . . . . . . . . . . 63 Table 9. Average Burden per Facility for Annual Monitoring and Reporting Activities . . . . . . 63 Table 10. Average Director Burden for Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Table 11. Average Burden & Costs per Facility for NPDES Permit Application Activities . . . . 71 Table 12. Average Burden & Costs per Facility for Annual Monitoring and Reporting Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Table 13. Average Director Burden & Costs for Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Table 14. Estimating Federal Burden and Costs for Activities . . . . . . . . . . . . . . . . . . . . . . . . . 73 Table 15. Summary of Average Annual Respondents, Burden, and Costs for Facilities and Directors for the ICR Approval Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Table 16. Summary of Average Annual Agency Burden and Costs for the ICR Approval Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 1 1 IDENTIFICATION OF THE INFORMATION COLLECTION 1a Title of the Information Collection TITLE: Information Collection Request for Cooling Water Intake Structure Phase II Existing Facility Final Rule U. S. EPA ICR NUMBER: 2060.02 1b Short Characterization/ Abstract The Section 316( b) Phase II Existing Facility final rule requires the collection of information from existing facilities that generate and transmit electric power or generate electric power but sell it to another entity for transmission, use a cooling water intake structure ( CWIS)

and have a design intake flow of 50 million gallons per day ( MGD) or more. Section 316( b) of the CWA requires that any standard established under Section 301 or 306 of the CWA and applicable to a point source must require that the location, design, construction and capacity of CWISs at that facility reflect the best technology available ( BTA) for minimizing adverse environmental impact. Such impact occurs as a result of impingement ( where fish and other aquatic life are trapped on technologies at the entrance to cooling water intake structures) and entrainment ( where aquatic organisms, eggs, and larvae are taken into the cooling system, passed through the heat exchanger, and then pumped back out with the discharge from the facility). The final rule establishes requirements applicable to the location, design, construction, and capacity of cooling water intake structures at Phase II existing facilities. These requirements seek to establish the best technology available for minimizing adverse environmental impact associated with the use of CWISs.

Under the final rule, Phase II existing facilities are defined as existing facilities that meet the applicability criteria specified in § 125.91 and that both generate and transmit electric power,

or generate electric power but sell it to another entity for transmission. The applicability criteria in § 125.91 specify that an existing facility is a Phase II existing facility subject to this regulation if it is a point source that uses or proposes to use a cooling water intake structure, both generates and transmits electric power or generates electric power but sells it to another entity for 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 2 transmission, has at least one CWIS that uses at least 25 percent of the water it withdraws ( measured on an average monthly basis) for cooling purposes, and has a design intake flow of 50 million gallons per day ( MGD) or more. In the case of a cogeneration facility that shares a CWIS with another existing facility, only that portion of the cooling water intake flow that is used in the cogeneration process shall be considered for purposes of determining whether the 50 MGD and 25 percent criteria are met. Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier ( or multiple suppliers)

of cooling water if the supplier or suppliers withdraw( s) water from waters of the United States.

Use of cooling water does not include obtaining cooling water from a public water system or use of treated effluent that otherwise would be discharged to a water of the United States.

EPA chose the 50 MGD threshold to focus the final rule on the largest existing electric power generating facilities. The 50 MGD threshold is reasonable because it addresses a substantial percentage of the cooling water flow withdrawn by existing electric power generating facilities. EPA believes the regulation of existing power generating facilities with flows of 50 MGD or greater in Phase II will address those existing facilities with the greatest potential to cause or contribute to adverse environmental impact. While the 25 percent threshold generally does not affect existing electric power generating facilities since such facilities typically use the majority of their intake flow for cooling, EPA has included this threshold both to ensure consistency with the new facility rule requirements and in anticipation of the Phase III rule, which will address existing manufacturing facilities and other existing electric power generating facilities.

Existing electric power generating facilities that do not meet the threshold requirements regarding the amount of water withdrawn for cooling water purposes in § 125.91( a), and existing manufacturing facilities, will be addressed at a later date in the Phase III Existing Facility rulemaking. Until that time, these facilities must meet requirements determined on a case by case,

best professional judgment ( BPJ) basis.

In the final Phase II Existing Facility rule, an existing facility may choose one of the following four compliance alternatives for establishing best technology available for minimizing adverse environmental impact at the site:

( 1)( i) Demonstrate that it has reduced, or will reduce, its flow commensurate with a closed cycle recirculating system. In that event, the facility will not be required to further demonstrate that it meets the performance standards for either impingement mortality or entrainment. In addition,

the facility is not subject to the requirements in § 125.95, § 125.96, § 125.97, § 125.98, and § 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 3 125.99. However, the facility may still be subject to any more stringent requirements established under § 125.94( f); or ( ii) Demonstrate that it has reduced, or will reduce, its maximum through screen design intake velocity to 0.5 ft/ s or less. In that event, the facility will not be required to further demonstrate that it meets the performance standards for impingement mortality and are not subject to the impingement requirements in § 125.95, § 125.96, § 125.97, § 125.98, and § 125.99. However,

the facility may still be subject to any more stringent requirements established under § 125.94( f);

( 2) Demonstrate that its existing design and construction technologies, operational measures,

and/ or restoration measures meet the performance standards specified in § 125.94( a) and/ or the restoration requirements in § 125.94( d);

( 3) Demonstrate that the facility has selected design and construction technologies,

operational measures, and/ or restoration measures that will, in combination with any existing design and construction technologies, operational measures, and/ or restoration measures, meet the performance standards specified in § 125.94( a) and/ or the restoration requirements in § 125.94( d);

( 4) Demonstrate that the facility has installed and properly operates and maintains an approved design and construction technology in accordance with § 125.99( a) or ( b). If the facility installs and properly operates the approved design and construction technology in § 125.99( a), it meets the requirements in § 125.94( b)( 1)( ii) for reducing impingement mortality; or Demonstrate that the costs of compliance with the otherwise applicable performance standards in § 125.94( a) would be significantly greater than the costs considered by the Administrator when establishing such performance standards, or that, for this facility, the costs would be significantly greater than the benefits of complying with the national performance requirements in § 125.94( a). The facility may receive site specific performance standards based on a site specific determination of best technology available.

The Section 316( b) Phase II Existing Facility final rule requires several distinct types of information collection as part of the NPDES application. In general, the information will be used to identify which of the performance standard requirements in the rule apply to the facility, how the facility is meeting these requirements, and whether the facility is meeting the goal of minimizing adverse environmental impact. Specific data requirements that would apply to all facilities are: 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 4 ° source water physical data which shows the physical configuration of all source waterbodies used by the facility, identifies and characterizes the source waterbody's hydrological and geomorphological features, and provides location through maps.

° cooling water intake structure data which shows the configuration and location of cooling water intakes structures, provides details on the design operation of each cooling water intake structure, and diagrams flow distribution and water balance.

° cooling water system data that characterizes the operation of the cooling water system and its relationship to the CWIS.

Additionally, most Phase II facilities ( except those facilities meeting the requirements of compliance alternative 1), must conduct a comprehensive demonstration study ( Study) that characterizes the source water baseline in the vicinity of the intake structure( s), characterizes operation of the cooling water intake( s), and confirms that the technology( ies), operational measures and restoration measures proposed and/ or implemented at the CWIS meet the applicable performance standards specified in § 125.94. The final rule requires that Phase II existing facilities submit the information required for the Study consistent with the compliance alternative selected. The Study includes the following data requirements.

° proposal for information collection that describes the proposed and/ or implemented technology( ies), operational measures, and/ or restoration measures to be evaluated in the study, describes any historical studies that are proposed to be used in the study,

summarizes any past, ongoing, or voluntary consultation with fish and wildlife management agencies ( including a copy of written comments received as a result of such consultation), and provides a sampling plan for any new field studies proposed to be conducted.

° source waterbody flow information to support the determination of whether the facility exceeds proportional flow thresholds ( i. e., whether the facility withdraws more than a certain proportion of source waterbody flow), including the annual mean flow for intakes located in freshwater rivers/ streams, and a description of the waterbody thermal stratification for intakes located in lakes or reservoirs.

° impingement mortality and entrainment characterization study that provides information to support the development of a calculation baseline for evaluating impingement mortality and entrainment and to characterize current impingement mortality and entrainment.

° technology and compliance assessment information that explains the technologies and operational measures that are in place or have been selected to reduce impingement mortality and entrainment, calculates the reduction in impingement mortality and 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 5 entrainment that would be achieved by the selected technologies and operational measures, and demonstrates that the location, design, construction and capacity of the CWIS have been selected to reflect BTA at the site. This information includes a Design and Construction Technology Plan and possibly a Technology Installation and Operation Compliance Plan.

° information to support proposed restoration measures ( if the facility proposes to use restoration measures) that describes the restoration measures that are proposed to be implemented; quantifies the combined benefits from implementing design and construction technologies, operational measures and/ or restoration measures; presents a plan for implementing and maintaining the efficacy of the restoration measures; and summaries of consultations with appropriate fish and wildlife management agencies; design and engineering calculations, drawings and maps; and a final report from an independent peer review of materials submitted.

° information to document installation and proper operation and maintainance of approved design and construction technology to show that an approved technology has been ( or will be) properly installed in accordance with the requirements of the rule.

° verification monitoring plan that describes the monitoring that will be used to verify the full scale performance of the proposed or implemented technologies, operational measures, or restoration measures.

Additional data requirements apply to facilities that choose to request a site specific determination of best technology available for minimizing adverse environmental impact. Specific data requirements that would apply to these facilities include:

° comprehensive cost evaluation study that documents the cost of implementing the design and construction technology plan and the costs of the alternative technologies and operational measures that the facility proposes to implement at the site.

° valuation of the monetized benefits of reducing impingement and entrainment that uses a comprehensive methodology to fully value the impacts of impingement mortality and entrainment at the site and the benefits achievable by compliance with the applicable requirements.

° identification and description of qualitative and non monetized benefits that describes any qualitative and non monetized benefits that would be realized at the site.

° site specific technology plan that describes the design and operation of all design and construction technologies, operational measures and restoration measures ( existing and proposed) that the facility has selected; demonstrates the efficacy of the technologies; and demonstrates that the technologies, operational measures or restoration measures selected 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 6 would reduce impingement mortality and entrainment to the extent necessary to satisfy the requirements of § 125.94; and includes design calculations, drawings, and estimates to support the plan.

In addition to the information requirements of the NPDES permit application, NPDES permits normally specify monitoring and reporting requirements to be conducted by the permitted entity. Phase II existing facilities are required to perform biological monitoring of impingement and entrainment. The results of each facility's monitoring efforts are to be reported yearly to the permitting Director in an annual status report. Finally, facilities are required to maintain records of all submitted documents, supporting materials, and monitoring results for at least three years ( or as directed by the Director). Facilities are also required to perform a verification study to demonstrate that they are meeting the required level of impingement mortality and entrainment reduction.

An authorized State must update programs to be consistent with the final cooling water intake requirements or may demonstrate to the Director that it has adopted alternative regulatory requirements in its NPDES program that will result in environmental performance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved under § 125.94. Following review, the Director will approve alternative regulatory requirements. State Directors are required to also review all materials submitted to them by the facilities within the scope of the final regulation, confirm their compliance with the Section 316( b) Phase II Existing Facility rule, and issue NPDES permits with appropriate conditions to minimize adverse environmental impact associated with the use of the facilities' CWISs.

As suggested, the primary users of the data collected under the final rule will be States authorized to administer the NPDES permitting program, and the EPA. It is anticipated that other government agencies, both at the State and Federal level, as well as public interest groups, private companies, and many individuals will also use the data.

During the first three years after rule promulgation, the information collection required by the rule will involve responses from an estimated total of 463 facilities and 46 States and Territories and cost approximately $ 307.5 million ( including operation and maintenance costs),

with an annual average of 334 respondents, 1,700,392 burden hours, and $ 102.5 million per year ( see Section 6 and Exhibit A11 in Appendix A for additional detail). 1 EPA 2000. Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures. U. S. Environmental Protection Agency, Office of Wastewater Management, Washington, D. C. OMB Control No. 2040 0213.

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 7 2 NEED FOR AND USE OF THE COLLECTION 2a Need/ Authority for the Collection The following sections describe the need for this information collection and the legal authority under which this information will be collected.

2a( i) Need for the Collection The information requirements of the final rule are necessary to ensure that existing facilities are complying with the rule's provisions, and thereby minimizing adverse environmental impact resulting from impingement and entrainment losses due to the withdrawal of cooling water. There is substantial evidence that existing cooling water intake structures have an adverse impact on the nearby environment. There is also evidence that current systems are not using the Best Technology Available To Minimize Adverse Environmental Impact ( BTA), and that a national regulatory approach is justified.

Evidence that Significant Environmental Impact is Occurring as a Result of Cooling Water Intake Structures EPA estimates that facilities under the scope of the final rule withdraw on average more than 214 billion gallons of cooling water a day from waters of the U. S. 1 The withdrawal of such large quantities of cooling water in turn affects large quantities of aquatic organisms including phytoplankton ( tiny, free floating photosynthetic organisms suspended in the water column),

zooplankton ( small aquatic animals, including fish eggs and larvae, that consume phytoplankton and other zooplankton), fish and shellfish. Aquatic organisms drawn into cooling water intake structures are either impinged on components of the cooling water intake structure or entrained in the cooling water system itself.

Impingement takes place when organisms are trapped against intake screens by the force of the water being drawn into through the cooling water intake structure. The velocity forces of the water withdrawal by the cooling water intake structure can prevent proper gill movement,

remove fish scales, and cause other physical damage. Impingement can causes the physical harm 2 EPA. 2004. Chapter A7: Entrainment Survival, Case Study Analysis for the Section 316( b) Phase II Existing Facilities Rule.

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 8 or death of affected organisms through exhaustion, starvation, asphyxiation, and descaling. Death from impingement can occur immediately or subsequently after an organism is returned to the waterbody as it succumbs to physical damage.

Entrainment occurs when organisms are drawn through the cooling water intake structure into the cooling system. Organisms that become entrained are normally relatively small aquatic organisms, including early life stages of fish and shellfish. Many of these small organisms serve as prey for larger organisms higher on the food chain which tend to be commercially and recreationally desireable species. As entrained organisms pass through a facility's cooling system they are subject to mechanical, thermal, and sometimes chemical stress. Sources of such stress include physical impacts in the pumps and condenser tubing, pressure changes caused by diversion of the cooling water into the plant or by the hydraulic effects of the condensers, sheer stress,

thermal shock in the condenser and discharge tunnel, and chemical toxic effects from antifouling agents such as chlorine. Like death from impingement, death from entrainment can occur immediately or subsequently after an organism is returned to the waterbody as it succumbs to the damage from the stresses encountered as it passed through the cooling water system. It is EPA's position that the current state of the science indicates that there is little to no chance of survival for organisms which are entrained by cooling water intake structures. 2 The environmental impacts attributable to impingement and entrainment at individual facilities may result in appreciable losses of early life stages of fish and shellfish, serious reductions in forage species, reductions in recreational and commercial landings, and extensive losses over relatively short intervals of time. EPA estimates that the current number of age one equivalent fish and shellfish killed from impingement and entrainment from cooling water intake structures at the facilities covered by this Phase II rule is over 4 billion organisms annually.

The following are among other recent documented examples of impact occurring as a result of cooling water intake structures:

A. Brayton Point Pacific Gas & Electric's Brayton Point plant ( formerly owned by New England Power Company) is located in Mt. Hope Bay, in the northeastern reach of Narragansett Bay, Rhode Island. To increase electric generating capacity, Unit 4 was switched from closed cycle to once 3 Comparison of Trends in the Finfish Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to Operations of the New England Power Brayton Point Station. Mark Gibson, Rhode Island Division Fish and Wildlife, Marine Fisheries Office, June 1995 and revised August 1996.

4 Southern California Edison. 1988. Report on 1987 data: marine environmental analysis and interpretation, San Onofre Nuclear Generating Station.

5 Ibid.

6 Swarbrick, S. and R. F. Ambrose. 1989. Technical report C: entrapment of juvenile and adult fish at SONGS. Prepared for Marine Review Committee.

7 Kastendiek, J. and K. Parker. 1988. Interim technical report: midwater and benthic fish. Prepared for Marine Review Committee.

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 9 through cooling in 1985. The modification of Unit 4 increased cooling water intake flow by 45 percent. Studies designed to evaluate whether the cooling water intake structure was affecting fish species abundance trends found that Mt. Hope Bay experienced a progressively steady rate of decline in finfish species of recreational, commercial, and ecological importance. 3 In contrast,

species abundance trends were relatively stable in coastal areas and portions of Narragansett Bay that are not influenced by the cooling water intake structure. Further strengthening the evidence that the cooling water intake structure was contributing to the documented declines was the finding that the rate of population decline increased substantially with the full implementation of the once through cooling mode for Unit 4.

B. San Onofre Nuclear Generating Station The San Onofre Nuclear Generating Station ( SONGS) is located on the coastline of the Southern California Bight, approximately 2.5 miles southeast of San Clemente, California. 4 The marine portions of Units 2 and 3, which are once through, open cycle cooling systems, began commercial operation in August 1983 and April 1984, respectively. 5 Since then, many studies evaluated the impact of the SONGS facility on the marine environment.

In a normal ( non El Niño) year, an estimated 121 tons of midwater fish ( primarily northern anchovy, queenfish, and white croaker) may be entrained at SONGS. 6 The fish lost include approximately 350,000 juveniles of white croaker, a popular sport fish; this number represents 33,000 adult individuals or 3.5 tons of adult fish. Within 3 kilometers of SONGS, the density of queenfish and white croaker in shallow water samples decreased by 34 and 36 percent,

respectively. Queenfish declined by 50 to 70 percent in deepwater samples. 7 In contrast, relative abundances of bottom dwelling adult queenfish and white croaker increased in the vicinity of 8 Swarbrick, S. and R. F. Ambrose. 1989. Technical report C: entrapment of juvenile and adult fish at SONGS. Prepared for Marine Review Committee.

9 Kastendiek, J. and K. Parker. 1988. Interim technical report: midwater and benthic fish. Prepared for Marine Review Committee.

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 10 SONGS. 8 Increased numbers of these and other bottom dwelling species were believed to be related to the enriching nature of SONGS discharges, which in turn support elevated numbers of prey items for bottom fish. 9 Additional documented examples of impacts occurring as a result of cooling water intake structures are discussed in the preamble to the proposed Phase II Existing Facility rule and the Technical Development Document .

Evidence That Point Sources Are Not Using Best Technology Available To Minimize Adverse Environmental Impact The Section 316( b) Phase II Existing Facility Rule addresses CWISs at existing steam electric power generating facilities. In general and based on available data, most older existing facilities use conventional traveling screens as a baseline technology. These screens are designed to prevent debris from entering the cooling water system, not to minimize impingement and entrainment. The most common intake designs include front end trash racks ( usually consisting of fixed bars) to prevent large debris from entering system. They are equipped with screen panels mounted on an endless belt that rotates through the water vertically. Most conventional screens have 3/ 8 inch mesh that prevents smaller debris from clogging the condenser tubes. The screen wash is typically high pressure ( 80 to 120 pounds per square inch ( psi)). Screens are rotated and washed intermittently and fish that are impinged often die because they are trapped on the stationary screens for extended periods. The high pressure wash also frequently kills fish or they are re impinged on the screens. Conventional traveling screens are used by a majority of existing facilities within the scope of this rule.

Based on an analysis for the proposed rule of data collected through the detailed industry questionnaire and the short technical questionnaire, EPA believes that the Phase II rule will apply to approximately 543 existing steam electric power generating facilities. For these in scope facilities, EPA has compared the technologies employed to those identified as best technology available for purposes of establishing the performance requirements under the final rule. Of these facilities, 108 operate at less than 15 percent capacity utilization, 98 of which require impingement 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 11 controls only. Of the remaining 435 facilities ( i. e., those that exceed 15 percent capacity utilization):

Of the 90 Phase II existing facilities located on freshwater lakes or reservoirs, EPA estimates that one facility will need to install both impingement and entrainment controls,

68 of these facilities will have to install impingement controls only , and that 21 facilities already have impingement controls that meet the rule requirements;

As for existing steam electric power generating facilities located on the Great Lakes, EPA estimates that 37 of these facilities will have to install impingement and entrainment controls and that 16 facilities already have impingement controls that meet the rule requirements;

Of the 78 facilities located on estuaries, tidal rivers, or oceans, EPA estimates that 3 facilities would already meet the final impingement and entrainment controls. The remaining 75 facilities will need to install additional technologies to reduce impingement,

entrainment, or both;

EPA estimates that of 214 facilities located on freshwater river or streams, 165 are at or below the flow threshold ( i. e., intake flow threshold of five ( 5) percent of the mean annual flow), of which 78 of these facilities would have to install additional impingement controls and 45 would install both impingement and entrainment controls ( the remaining facilities have controls in place the meet the rule requirements). EPA estimates that 53 facilities exceed the flow threshold, all of which would require impingement and entrainment controls;

The rule will not require any changes at approximately 75 large existing facilities with recirculating wet cooling systems ( e. g., wet cooling towers or ponds).

These data indicate that the majority of Phase II existing facilities are not employing technologies that achieve performance consistent with the requirements of the final rule.

Evidence that a National Regulatory Approach Is Warranted NPDES permitting authorities have codified the requirements of Section 316( b) in a variety of ways. In 1993, after evaluating State regulations and statutes relating to Section 316( b), EPA determined that of the then 40 States with NPDES permitting authority, the majority did not have statutes or regulations specifically addressing CWISs in any detail. Table 1 below summarizes some of the State authorities EPA identified that did address CWISs. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 12 States such as California and Florida have developed regulatory requirements that closely mirror the statutory language of Section 316( b). Additionally, several other NPDES States have included language in their statutes or regulations referencing either Section 316( b) or 40 CFR Part 125, Subpart I, which is the blank section of the Federal NPDES regulations reserved for criteria applicable to cooling water intake structures. For example, New Jersey's NPDES regulations state, "[ T] he criteria applicable to cooling water intake structures shall be as set forth in 40 CFR Part 125, Subpart I when the USEPA adopts these criteria." Other States merely restate the statutory language. For example, New York's NPDES regulations require that "[ t] he location,

design, construction and capacity of cooling water intake structures, in connection with point source thermal discharges, shall reflect the best technology available for minimizing adverse environmental impact." 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 13 Table 1. Selected NPDES State Statutory/ Regulatory Provisions Addressing the Impact from Cooling Water Intake Structures NPDES State Citation Summary of Requirements Connecticut RCSA Section 22a,

430 4 Provides for coordination with other Federal/ State agencies with jurisdiction over fish, wildlife, or public health, which may recommend conditions necessary to avoid substantial impairment of fish, shellfish, or wildlife resources New Jersey NJAC Section 7: 14A 11.6 Criteria applicable to intake structure shall be as set forth in 40 CFR Part 125, when EPA adopts these criteria New York 6 NYCRR Section 704.5 The location, design, construction, and capacity of intake structures in connection with point source thermal discharges shall reflect BTA for minimizing environmental impact Maryland MRC Section 26.08.03 Detailed regulatory provisions addressing BTA determinations Illinois 35 Ill. Admin. Code 306.201 ( 1998) Requirement that new intake structures on waters designated for general use shall be so designed as to minimize harm to fish and other aquatic organisms Iowa 567 IAC 62.4( 455B) Incorporates 40 CFR part 401, with cooling water intake structure provisions designated " reserved"

California Cal. Wat. Code Section 13142.5( b) Requirements that new or expanded coastal power plants or other industrial installations using seawater for cooling shall use best available site, design technology, and mitigation measures feasible to minimize intake and mortality of marine life In discussions with State and EPA regional contacts, EPA has found that there are numerous issues associated with the lack of a national regulatory approach to implementing section 316( b) requirements. None of the State programs establish national performance standards for best technology available to minimize adverse environmental impact. EPA believes that such national standards promote consistent application of best technology available to minimize adverse environmental impact. EPA particularly believes that national regulations are needed to ensure consistency in determining which facilities are subject to section 316( b)

requirements, what environmental impacts must be addressed, which available technologies are best, and how to determine permit requirements that fulfill section 316( b). In addition, many implementation issues require clarification, including but not limited to what data are sufficient to support 316( b) decisions, what is the appropriate scope and focus of 316( b) studies, and what is 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 14 the appropriate role of practices such as restoration. The existing case by case approach results in high administrative burdens being imposed on applicants and permit writers relative to the final rule. As EPA has discussed at 67 FR 17167, such burdens can be associated with the need to determine in each case whether adverse impacts are occurring, the nature and level of any such impacts, and which design and construction technologies constitute the best technology available to minimize adverse environmental impacts, including consideration of costs and benefits.

Further, these case by case approaches increase the likelihood that each significant cooling water intake permitting issue becomes a point of contention between the applicant and permit writer,

which experience indicates slows the permitting process, makes it more resource intensive, and makes it less effective and more costly. EPA also is aware of varying practices among States.

For example, in discussions with State and EPA regional contacts, EPA has found that there are differences in the manner in which States have implemented their Section 316( b) authority through the years. Some States and Regions review Section 316( b) requirements each time an NPDES permit is reissued. These permitting authorities may re evaluate the potential for impact and whether operations or other conditions influencing the potential for impact have changed at the facility. Other permitting authorities were found to have made initial determinations for facilities in the 1970s but not to have revisited the determinations since.

As discussed above, EPA believes that approaches to implementing Section 316( b) vary greatly. It is evident that some authorities have regulations and other program mechanisms in place to ensure continued implementation of Section 316( b) and evaluation of the potential impact from cooling water intake structures, while others do not. Furthermore, Section 316( b)

determinations are currently made on a case by case basis, based on permit writers' best professional judgment. Through discussions with some State permitting officials ( e. g., in California, Georgia, and New Jersey), EPA was asked to establish national standards in order to help ease the case by case burden on permit writers and to promote national uniformity with respect to implementation of Section 316( b).

2a( ii) Authority for the Collection Section 316 was included in the Federal Water Pollution Control Act of 1972 for the express purpose of regulating thermal discharges and to address the environmental impact of cooling water intake structures. Moreover, Section 316( b) is the only provision in the CWA that focuses exclusively on water intake. Section 316( b) provides that "[ a] ny standard established pursuant to [ CWA Section 301] or [ CWA Section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 15 reflect the best technology available for minimizing adverse environmental impact." The requirements of Section 316( b) are closely linked to several of the core elements ( e. g., secs. 301,

304, 306 and 402) of the National Pollutant Discharge Elimination System ( NPDES) permit program established under the CWA. Conditions implementing Section 316( b) are and will continue under this rule to be included in NPDES permits issued under Section 402 of the CWA.

The final Phase II rule implements section 316( b) of the CWA as it applies to " Phase II existing facilities" as defined in this rule. The final rule establishes requirements, reflecting the best technology available for minimizing adverse environmental impact, applicable to the location,

design, construction, and capacity of cooling water intake structures at Phase II existing power generating facilities that withdraw at least fifty ( 50) MGD of cooling water from waters of the U. S. The final rule does not apply to existing manufacturing facilities or to power generating facilities that withdraw less than fifty ( 50) MGD of cooling water. These facilities will be addressed in a separate rulemaking.

The final Phase II rule is being issued under the authority of sections 101, 301, 304, 306,

308, 316, 401, 402, 501, and 510 of the Clean Water Act ( CWA), 33 U. S. C. 1251, 1311, 1314,

1316, 1318, 1326, 1341, 1342, 1361, and 1370. This rule partially fulfills the obligations of the U. S. Environmental Protection Agency ( EPA) under a consent decree in Riverkeeper Inc., et al.

v. Whitman, United States District Court, Southern District of New York, No. 93 Civ. 0314 ( AGS).

The final rule partially fulfills EPA's obligation to comply with an Amended Consent Decree. The Amended Consent Decree was filed on November 22, 2000, in the United States District Court, Southern District of New York, in Riverkeeper Inc., et al. v. Whitman, No. 93 Civ 0314 ( AGS), a case brought against EPA by a coalition of individuals and environmental groups.

The original Consent Decree, filed on October 10, 1995, provided that EPA was to propose regulations implementing section 316( b) by July 2, 1999, and take final action with respect to those regulations by August 13, 2001. Under subsequent interim orders and the Amended Consent Decree, EPA has divided the rulemaking into three phases and is working under new deadlines. As required by the Amended Consent Decree, on November 9, 2001, EPA took final action on a rule governing cooling water intake structures used by new facilities ( Phase I). 66 FR 65255 ( December 18, 2001). The Amended Consent Decree also requires that EPA issue a proposed rule by February 28, 2002, ( 67 FR 17121, April 9, 2002) and take final action on this 10 Under the Amended Consent Decree, EPA is to propose regulations in Phase II that are " applicable to, at a minimum: ( i) existing utilities ( i. e., facilities that both generate and transmit electric power) that employ a cooling water intake structure, and whose intake flow levels exceed a minimum threshold to be determined by EPA during the Phase II rulemaking process; and ( ii) existing non utility power producers ( i. e., facilities that generate electric power but sell it to another entity for transmission) that employ a cooling water intake structure, and whose intake flow levels exceed a minimum threshold to be determined by EPA during the Phase II rulemaking process."

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 16 rule by February 16, 2004 ( Phase II). 10 The decree requires further that EPA propose regulations governing cooling water intake structures used, at a minimum, by smaller flow power plants and factories in four industrial sectors ( pulp and paper making, petroleum and coal products manufacturing, chemical and allied manufacturing, and primary metal manufacturing) by November 1, 2004, and take final action by June 1, 2006 ( Phase III).

2b Practical Utility/ Users of the Data The final rule includes both information that must be submitted to permitting authorities and data that must be collected and maintained on site by the facility. Each existing facility maintains facility level records of the characterization data, plans, measurements, diagrams, and calculations submitted to the Directors, as well as the analytical results of monitoring actions.

Facilities could use the data to:

characterize environmental conditions and monitor existing CWIS performance

determine appropriate design and construction technologies, operational, or restoration measures

monitor the performance of design and construction technologies, or operational or restoration measures.

Permit writers will also use these data to verify the appropriate compliance actions are selected and implemented. Under the final rule, EPA and NPDES Directors are to maintain records compiled from the regulated facilities. Much of the basic information obtained from the NPDES permit application is stored in EPA's Permit Compliance System ( PCS) database. PCS is used to track permit limits, permit expiration dates, monitoring data, and other data, and provides EPA with a nationwide inventory of permit holders. EPA stores basic notice of intent ( NOI)

information submitted for coverage under an NPDES general permit in the NOI database housed at the NOI Processing Center.

EPA Headquarters uses the information contained in PCS and the NOI databases to develop reports on permit issuance, backlog, and compliance rates. The Agency also uses the 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 17 information to respond to public and Congressional inquiries, develop and guide its policies,

formulate its budgets, assist States in acquiring authority for permitting programs, and manage the NPDES program to ensure national consistency in permitting. States can use this initial permit information along with the additional documentation and the annual reports to track facility monitoring, compliance violations, and enforcement activities.

Permittees must reapply for NPDES permits every five years. The re application process is the primary mechanism for obtaining up to date and new information concerning on site conditions. Although under the final rule, existing facilities provide data from self monitoring activities in annual reports to the permitting authority, these reports are a less comprehensive information gathering process than is the permit application process. EPA and States will use reapplication data to identify new species at risk or other potential concerns that could lead the permit writers to take the following actions:

specify additional permit limitations

assess compliance with applicable standard requirements

place appropriate special conditions in permits.

Environmental and citizen groups are expected to use the data collected under the final rule to independently assess impingement and entrainment rates for affected water bodies in their location. In addition, the data will be useful for the scientific community for assessing the impact of CWISs on recreational and commercial fisheries productivity and aquatic ecosystem health. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 18 3 NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA The following sections verify and affirm that this Information Collection Request satisfies the Office of Management and Budget's data collection guidelines, has public support, and does not duplicate another collection.

3a Nonduplication Given that the Phase II Existing Facility final rule applies to existing facilities, current data sources may already exist for the information required under the final rule. Therefore, it was important that EPA review existing data sources to identify currently available information on entities subject to Section 316( b) regulation and to ensure that the data requested by the rule are not otherwise accessible. Data sources reviewed included: data collected by offices within EPA;

data, reports, and analyses published by other federal agencies; reports and analyses published by industry; and publicly available financial information compiled by government and private organizations. From this effort, EPA has determined that the information collection and reporting requirements considered in this ICR are not contained or duplicated in other routinely collected documents or reports.

3b Public Notice Required Prior to ICR Submission to OMB A summary of the ICR for the proposed Phase II rule was included in the proposal with a request for comment ( 67 FR 17208).

3c Consultations It is worth noting that outreach and information collection is often not limited to the Phase II Existing Facility rule or any other phase of the rulemaking. EPA has undertaken a widereaching effort to collect information applicable to all phases. The clearest example of this type of collection effort is the industry surveys distributed by EPA in 2000. The database of response information has guided many decisions and analyses for all three Phases of the rulemaking.

The following paragraphs describe the specific outreach activities that EPA Staff performed during the development of the final Section 316( b) rule for existing facilities. The 11 U. S. EPA, Information Collection Request, Detailed Industry Questionaires: Phase II Cooling Water Intake Structures & Watershed Case Study Short Questionnaire, Section 3, 1999.

12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 19 outreach activities were intended to provide EPA with feedback on issues such as adverse environmental impact, BTA, and the potential cost associated with various regulatory alternatives.

EPA conducted a program of outreach to industry groups, environmental groups, and other government entities to get early feedback on the Section 316( b) regulatory effort. EPA coordinated with industry and environmental organization representatives, States, and regulators with the Department of Energy ( DOE), in an effort to find alternative approaches for regulating existing facilities.

In addition to outreach to industry groups, environmental groups, and other government entities in the development, testing, refinement, and completion of the 316( b) survey, 11 which has been used as a source of data for the Phase II final rule, EPA has made presentations on the Section 316( b) rulemaking effort in general at eleven professional and industry association meetings. EPA also conducted two public meetings in June and September of 1998 to discuss issues related to the Section 316( b) rulemaking effort. In September 1998 and April 1999, EPA staff participated in technical workshops sponsored by the Electric Power Research Institute on issues relating to the definition and assessment of adverse environmental impact. EPA staff have participated in other industry conferences, met upon request on numerous occasions with industry representatives, and met on a number of occasions with representatives of environmental groups.

In the months leading up to publication of the proposed Phase I rule, EPA conducted a series of stakeholder meetings to review the draft regulatory framework for the proposed rule and invited stakeholders to provide their recommendations for the Agency's consideration. EPA managers have met with the Utility Water Act Group, Edison Electric Institute, representatives from an individual utility, and with representatives from the petroleum refining, pulp and paper,

and iron and steel industries. EPA conducted meetings with environmental groups attended by representatives from between 3 and 15 organizations. EPA also met with the Association of State and Interstate Water Pollution Control Administrators ( ASIWPCA) and, with the assistance of ASIWPCA, conducted a conference call in which representatives from 17 states or interstate organizations participated. EPA also met with OMB and utility representatives and other federal agencies ( the Department of Energy, the Small Business Administration, the Tennessee Valley Authority, the National Oceanic and Atmospheric Administration's National Marine Fisheries Service and the Department of Interior's U. S. Fish and Wildlife Service). After publication of the proposed Phase I rule, EPA continued to meet with stakeholders at their request. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 20 EPA received more than 2000 comments on the Phase I proposed rule and NODA. In some cases these comments have informed the development of the Phase II rule proposal.

In January, 2001, EPA also attended technical workshops organized by the Electric Power Research Institute and the Utilities Water Action Group. These workshops focused on the presentation of key issues associated with different regulatory approaches considered under the Phase I proposed rule and alternatives for addressing 316( b) requirements.

On May 23, 2001, EPA held a day long forum to discuss specific issues associated with the development of regulations under § 316( b). At the meeting, 17 experts from industry, public interest groups, States, and academia reviewed and discussed the Agency's preliminary data on cooling water intake structure technologies that are in place at existing facilities and the costs associated with the use of available technologies for reducing impingement and entrainment.

Over 120 people attended the meeting.

On August 21, 2001, EPA staff participated in a technical symposium sponsored by the Electric Power Research Institute in association with the American Fisheries Society on issues relating to the definition and assessment of adverse environmental impact for section 316( b) of the CWA.

EPA received more than 3000 comments on the Phase II proposed rule and NODA. EPA management and staff also held a number of meetings and conference calls with industry representatives and plaintiffs to clarify the administrative record. EPA also drafted several supporting documents and responded to written questions that industry representatives submitted to EPA.

On May 6th and 7th, 2003, EPA hosted a symposium on Technologies for Protecting Aquatic Organisms from Cooling Water Intake Structures in Arlington, Virginia. The 2 day symposium provided a forum for technology transfer and information exchange among selected experts in the field as well as interested researchers, engineers, scientists, and consultants from government, industry, academia, and environmental organizations.

The tables below provide lists of the major commenters on the Phase II proposed rule and NODA. Tables 2, 3, and 4 are for industry organizations, environmental organizations, and Federal and State governments, respectively. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 21 Table 2. Industry Organization Representatives Organization Point of Contact American Public Power Association Teresa Pugh Edison Electric Institute Richard Bozec/ Thomas Kuhn/ Quinlan Shea Electric Power Research Institute Doug Dixon PG& E Mark Carney PSEG Maureen Vaskis/ Mark Strickland Harvard University Robert Stavins Utility Water Act Group Dave Bailey/ Kristy Bulleit/ Jim Stine Table 3. Environmental Organization Representatives Organization Point of Contact Tufts University Frank Ackerman Atlantic States Marine Fisheries Commission Carrie Selberg/ John O'Shea Delaware Riverkeeper Maya Van Rossum Riverkeeper Reed Super Table 4. Federal and State Government Representatives Organization Point of Contact Tennessee Valley Authority Jim Wright/ John Shipp NOAA, National Marine Fisheries Service Brian Pawlak/ William Hogarth U. S. Department of Energy Debra Littleton/ Robert Gross Alabama DEM John Poole, Jr.

Arkansas DEQ Mo Shafii Organization Point of Contact 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 22 Arkansas Office of the Governor Mike Huckabee California SWRCB Celeste Canti California Energy Commission Terrence O'Brien Florida DEP Allen Hubbard Indiana DEM Timothy Method Louisiana DEQ Gary Aydell Maryland DNR Rich McLean/ James Dieter Massachusetts OEA Thomas Skinner Michigan DEQ Russell Harding New Jersey DEP Bradley Campbell New York DEC Peter Duncan/ Denise Sheehan North Dakota DOH Randy Kowalski Pennsylvania DEP Christine Martin Pennsylvania Fish and Boat Commission John Arway Rhode Island Office of Attorney General Patrick Lynch Tennessee Wildlife Association/ Tennessee DEC Aubrey McKinney/ Paul Davis Tennessee Wildlife Resources Agency Gary Myers Texas CEQ Kathleen White Texas NRCC Daniel Burke 3d Effects of Less Frequent Collection EPA has concluded that less frequent data collection may fail to identify in a timely manner adverse environmental impact resulting from the operation of existing CWISs. In addition, less frequent collection would also hinder the ability of EPA, States, and facility operators to take advantage of technological improvements in impingement and entrainment technologies as they occur, or to track long term trends. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 23 3e General Guidelines The information collection requirements of the final rule are in accordance with the Paperwork Reduction Act guidelines at 5 CFR 1320.5( d)( 2). Requests for supplemental information for the purposes of emergency response or enforcement activities are exempt from the Paperwork Reduction Act requirements.

3f Confidentiality Applications for an NPDES permit may contain confidential business information.

However, EPA does not consider the specific information being requested by the final rule to be typical of confidential business or personal information. If a respondent does consider this information to be of a confidential nature, the respondent may request that such information be treated as such. All confidential data will be handled in accordance with 40 CFR § 122.7, 40 CFR Part 2, and EPA's Security Manual Part III, Chapter 9, dated August 9, 1976.

3g Sensitive Questions The Section 316( b) Existing Facility final rule does not require respondents to divulge information pertaining to private or personal information, such as sexual behavior or religious beliefs. Therefore, this section is not applicable. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 24 4 THE RESPONDENTS AND THE INFORMATION REQUESTED 4a Respondents/ SIC The applicability criteria of the final rule at § 125.91 define an existing facility as a Phase II existing facility subject to this regulation if it is a point source that uses or proposes to use a cooling water intake structure, both generates and transmits electric power or generates electric power but sells it to another entity for transmission, has at least one CWIS that uses at least 25 percent of the water it withdraws ( measured on an average monthly basis) for cooling purposes,

and has a design intake flow of 50 million gallons per day ( MGD) or more. Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier ( or multiple suppliers) of cooling water if the supplier or suppliers withdraw( s) water from waters of the United States. Use of cooling water does not include obtaining cooling water from a public water system or use of treated effluent that otherwise would be discharged to a water of the United States.

Typically, respondents under the Phase II rule include existing electric power generating facilities because they are associated with large cooling water needs. Facilities in the traditional steam electric utility category are classified under Standard Industrial Classification ( SIC) codes 4911 and 493, while nonutility power producers are classified under the major code that corresponds to the primary purpose of the facility ( e. g., the primary code may be SIC 49 if the primary purpose of the facility is to generate electricity). Nonutility power producers affected by the Phase II Existing Facility final rule are anticipated to be classified under SIC 49 ( i. e., their primary purpose is to generate electricity); nonutility power producers classified under other SIC codes ( i. e., whose primary purpose is not generating electricity) will be addressed at a later date under the Phase III Existing Facility rule. SIC Codes are provided in Table 5.

Table 5. Industry Categories and SIC Codes for Phase II Rule Respondent Industry Categories SIC Codes Traditional Steam Electric Utilities SIC codes 4911 and 493 Steam Electric Nonutility Power Producers:

Nonindustrial SIC Major Group 49 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 25 4b Information Requested The following sections provide details on data items requested and associated activities that the final rule would require respondents to undertake to provide this information. The two principal respondent categories are existing facilities subject to the final rule and NPDES program Directors ( i. e., States and Territories authorized under CWA Section 402( b) to administer the NPDES permit program, and EPA regional offices).

Information requirements for Phase II existing facilities will differ depending on the compliance alternative selected by the applicant. As discussed in Section 1, four compliance alternatives are available to an existing facility. Certain information requirements are applicable to all existing permitted facilities to which the rule applies, other information requirements apply based on the compliance alternative selected.

Since Section 316( b) standards are implemented through NPDES permits, the Section 316( b) Phase II Existing Facility Rule affects Directors in a manner similar to other changes to NPDES program requirements. There are currently 45 States and one Territory authorized under CWA Section 402( b) to implement the NPDES permit program, these new cooling water intake structure requirements potentially affect authorized State NPDES programs. To be consistent with the final rule, States must revise their current regulations or may demonstrate to the Administrator that the State has adopted alternative regulatory requirements that will result in environmental performance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved by the requirements of § 125.94. Implementation of the Phase II regulations begins upon promulgation of the final rule.

4b( i) Data Items, Including Record Keeping Requirements Data items required by the final rule are gathered for either record keeping or reporting purposes. There are several data items that are collected only during the year( s) prior to the beginning of each permit cycle, and others that are required to be collected on an annual basis.

Reporting Requirements The Section 316( b) Phase II Existing Facility final rule would not require Directors to prepare or submit any reports, beyond what is currently required of them under the NPDES program. However, Directors would need to review, maintain records of, and make permitting determinations based upon all documents and reports submitted to them by existing facilities. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 26 Phase II existing facilities must report the information required under paragraphs ( r)( 2),

( 3), and ( 5) of § 122.21 and § 125.95 with their application. At the time a Phase II existing facility submits its NPDES permit renewal application ( 180 days prior to expiration of its current permit, in accordance with § 122.21( d)( 2)), the final rule requires the facility to submit information demonstrating that it is employing BTA for its cooling water intake structure to minimize adverse environmental impact in compliance with Section 316( b) of the CWA. The information will be used to identify which of the requirements in the rulemaking apply to the facility, how the facility is meeting these requirements, and whether the facility is meeting the goal of minimizing adverse environmental impact. Three types of information are required to be included in the NPDES permit applications for all Phase II existing facilities:

( 1) source water physical data, as required under § 122.21( r)( 2),

( 2) cooling water intake structure data, as required under § 122.21( r)( 3), and ( 3) cooling water system data, as per requirements under § 122.21( r)( 5).

Depending on the compliance alternative selected, a facility may also need to conduct a comprehensive demonstration study ( Study) as stipulated under § 125.95( b)( 1) through § 125.95( b)( 8) as applicable for the selected compliance alternative. In accordance with § 125.95( a)( 2), the facility must submit any applicable portions of the Study, except for the Proposal for Information Collection, required by paragraph ( b) of § 125.95 and the information required in 40 CFR 122.21( r)( 2), ( 3) and ( 5) with the NPDES permit application. The Study includes the following components:

( 1) a proposal for information collection [ § 125.95 ( b)( 1)],

( 2) source waterbody flow information [ § 125.95 ( b)( 2)],

( 3) an impingement mortality and entrainment characterization study [ § 125.95 ( b)( 3)],

( 4) technology compliance and assessment information [ § 125.95 ( b)( 4)],

( 5) information to support proposed restoration measures [ § 125.95 ( b)( 5)],

( 6) information to document installation and proper operation and maintenance of approved design and construction technology [ § 125.95 ( b)( 6)], and ( 7) a verification monitoring plan [ § 125.95 ( b)( 8)].

Additional types of information as stipulated under § 125.95 ( b)( 7) are required to be included in the NPDES permit applications for Phase II existing facilities that choose to request site specific determinations of best technology available for minimizing adverse environmental impact ( BTA). The additional types of information that would be required to be included in the 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 27 NPDES permit applications as part of the Study for these facilities are: ( 1) a comprehensive cost evaluation study, ( 2) a valuation of monetized benefits of reducing impingement mortality and entrainment, ( 3) identification and description of qualitative and non monetized benefits, and ( 4) a site specific technology plan.

Summaries of the information requirements for Phase II facilities are provided below.

A. Source Water Physical Data EPA is requiring source water information to evaluate potential impact to the waterbody in which the intake structure is placed. Typically, intake structures are located offshore, at the shoreline, or at the end of an approach intake canal. The intake structure affects different species or life stages depending on its location in the source water and the source water type. For example, intakes located at the shoreline could affect spawning and nursery areas, while intakes located offshore could affect migratory routes. In addition, the proximity of the intake structures to sensitive aquatic ecological areas may result in potential environmental impact. Specific source water physical data items under § 122.21( r)( 2) include:

a narrative description and scaled drawings showing the physical configuration of all source water bodies used by the facility, including areal dimensions, depths, salinity and temperature regimes, and other documentation that supports the determination of the waterbody type where each cooling water intake structure is located [ § 122.21( r)( 2)( i)];

identification and characterization of the source waterbody's hydrological and geomorphological features, as well as the methods used to conduct any physical studies to determine the intake's area of influence within the waterbody and the results of each study [ § 122.21( r)( 2)( ii)]; and

locational maps [ § 122.21( r)( 2)( iii)].

B. Cooling Water Intake Structure Data Under 40 CFR § 122.21( r)( 3), facilities are required to submit information on the intake structure design and operation and the facility's water balance to evaluate the potential for impingement and entrainment of aquatic organisms. Information on the design of the intake structure and its location in the water column allows EPA to evaluate which species or life stages would potentially be subject to impingement and entrainment. Information on the operation of the intake structure and a diagram of the facility's water balance would be used to identify the proportion of intake water used for cooling, make up, and process water, and to evaluate whether 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 28 the effects of the intake would be continuous, intermittent or seasonal. The water balance diagram also would provide a picture of the total flow in and out of the facility, allowing EPA to evaluate compliance with the flow reduction requirements for intakes located on estuaries/ tidal rivers or oceans. Specific intake structure data items include:

a narrative description of the configuration of each of the cooling water intake structures and where it is located in the waterbody and in the water column [ § 122.21( r)( 3)( i)]

latitude and longitude in degrees, minutes, and seconds for each cooling water intake structure [ § 122.21( r)( 3)( ii)] ;

a narrative description of the operation of each cooling water intake structure, including design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable [ § 122.21( r)( 3)( iii)];

a flow distribution and water balance diagram that includes all sources of water to the facility, recirculating flows, and discharges [ § 122.21( r)( 3)( iv)]; and

engineering drawings of the cooling water intake structure [ § 122.21( r)( 3)( v)].

C. Cooling Water System Data Facilities are required to submit cooling water system data in accordance with § 122.21( r)( 5) for the purpose of evaluating the relationship between the cooling water system and the associated intake( s) and determining whether the facility uses at least 25 percent of the water it withdraws for cooling purposes. Data requirements include:

a narrative description of the operation of each of the cooling water systems, relationship to cooling water intake structures, proportion of the design intake flow that is used in the system, number of days of the year in operation and seasonal changes, if applicable [ § 122.21( r)( 5)( i)] and

engineering calculations and supporting data to support the description of the cooling water system required [ § 122.21( r)( 5)( ii)].

D. Comprehensive Demonstration Study Under § 125.95( b), facilities are required to submit information in the form of a Comprehensive Demonstration Study to characterize the source water baseline in the vicinity of the intake, characterize the operation of the cooling water intake, and confirm that the technology( ies), operational measures, and restoration measures proposed and/ or implemented at 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 29 the intake meet the applicable requirements of § 125.94. Study requirements vary based on the compliance alternative selected [ see § 125.94( b)]. Specific Study data items include:

Proposal for Information Collection. In accordance with § 125.95 ( b)( 1), this activity includes:

 a description of the proposed and/ or implemented technologies, operational measures, and restoration measures to be evaluated in the Study [ § 125.95 ( b)( 1)( i)]

 a list and description of any historical studies characterizing impingement and entrainment and/ or the physical and biological conditions in the vicinity of the intakes and their relevance to the proposed Study. If the facility proposes to use existing source waterbody data, the facility must demonstrate the extent to which the data are representative of current conditions, that existing data are sufficient to develop a scientifically valid estimate of impingement and entrainment at the site,

and that the data were collected using appropriate quality assurance/ quality control procedures [ § 125.95 ( b)( 1)( ii)];

 a summary of any past, ongoing or voluntary consultation with appropriate Federal, State and Tribal fish and wildlife agencies that is relevant to the Study and a copy of any written comments received [ § 125.95 ( b)( 1)( iii)];

 a sampling plan for any new field studies that the facility proposes to conduct. The sampling plan must document all methods and quality assurance procedures for sampling and data analysis. The proposed sampling and data analysis methods must be appropriate for a quantitative survey and must take into account the methods used in other studies performed in the source waterbody. The sampling plan must include a description of the study area ( including the area of influence of the cooling water intake structure), and provide a taxonomic identification of the sampled or evaluated biological assemblages ( including all life stages of fish and shellfish) [ § 125.95 ( b)( 1)( iv)].

Source Waterbody Flow Information. As required under § 125.95 ( b)( 2), this includes:

 if the cooling water intake structure is located in a freshwater river or stream, the facility must provide the annual mean flow of the waterbody and any supporting documentation and engineering calculations to support the analysis of which requirements specified in § 125.94( a)( 2)( i) or ( ii) would apply to the facility based on its water intake flow in proportion to the mean annual flow of the river or stream [ § 125.95 ( b)( 2)( i)]; and 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 30  if the cooling water intake structure is located in a lake ( other than one of the Great Lakes) or reservoir and the facility proposes to increase its design intake flow, the facility must provide a narrative description of the waterbody thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow in a way that adversely impacts water quality or fisheries [ § 125.95 ( b)( 2)( ii)].

Impingement Mortality and Entrainment Characterization Study. Under § 125.95 ( b)( 3), the following activities are required:

 taxonomic identifications of those species of fish and shellfish and their life stages that are in the vicinity of the intake and are most susceptible to impingement and entrainment [ § 125.95 ( b)( 3)( i)];

 a characterization of those species of fish and shellfish and life stages that are in the vicinity of the intake and are most susceptible to impingement and entrainment,

including a description of the abundance and temporal/ spatial characteristics in the vicinity of the intake, based on the collection of a sufficient number of years of data to characterize annual, seasonal and daily variations in impingement mortality and entrainment ( e. g., related to climate/ weather differences, spawning, feeding and water column migration) [ § 125.95 ( b)( 3)( ii)]; and  documentation of current impingement mortality and entrainment of all life stages of fish and shellfish, and any species protected under Federal, State, or Tribal Law ( including threatened or endangered species) at the facility and an estimate of impingement mortality and entrainment under the calculation baseline. The documentation may include historical data that are representative of the current operation of the facility and of biological conditions at the site. Impingement mortality and entrainment samples must be collected during periods of representative operational flows for the intake and the flows associated with the samples must be documented [ § 125.95 ( b)( 3)( iii)].

Technology Compliance and Assessment Information. If the facility chooses to use design and construction technologies or operational measures in whole or in part to meet the requirements of § 125.94, the facility must submit, as stipulated under § 125.95( b)( 4), a Design and Construction Technology Plan which includes the following:

 the capacity utilization rate for the facility and supporting data ( including the average annual net generation of the facility ( in Mwh) measured over a five year period ( if available) of representative operating conditions and the total net 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 31 capability of the facility ( in MW)) and calculations, and an explanation of the technologies and operational measures in place or selected, in accordance with § 125.95 ( b)( 4)( i);

 a narrative description of the design and operation of all design and construction technologies or operational measures ( existing or proposed), including fishhandling and return systems, that the facility has in place or will use to meet the requirements to reduce impingement mortality of those species expected to be most susceptible to impingement, and information that demonstrates the efficacy of the technology for those species [ § 125.95 ( b)( 4)( i)( A)];

 a narrative description of the design and operation of all design and construction technologies or operational measures ( existing or proposed) that the facility has in place or will use to meet the requirements to reduce entrainment of those species expected to be the most susceptible to entrainment, and information that demonstrates the efficacy of the technology for those species [ § 125.95 ( b)( 4)( i)( B)];

 calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would be achieved by the technologies and operational measures the facility has selected based on the Impingement Mortality and Entrainment Characterization Study. In determining compliance with the requirements to reduce impingement mortality or entrainment, the facility must first determine the calculation baseline upon which to assess the total reduction in impingement mortality and entrainment. Reductions in impingement mortality and entrainment from this baseline as a result of any design and construction technologies already implemented at the facility should be added to the reductions expected to be achieved by any additional design and construction technologies that will be implemented. Facilities that recirculate a portion of their flow may take into account the reduction in impingement mortality and entrainment associated with the reduction in flow when determining the net reduction associated with existing technology and operational measures. This estimate must include a site specific evaluation of the suitability of the technology( ies) based on the species that are found at the site, and/ or operational measures and may be determined based on representative studies ( i. e., studies that have been conducted at cooling water intake structures located in the same waterbody type with similar biological characteristics) and/ or site specific technology prototype studies [ § 125.95 ( b)( 4)( i)( C)]; and  design calculations, drawings, and estimates to support the above descriptions [ § 125.95 ( b)( 4)( i)( E)]. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 32  If a facility proposes compliance based on the Technology Installation and Operation Compliance Plan during the first permit term after promulgation of the rule, then the facility must submit both the design and construction technology plan and the following: a list of operational parameters to be monitored during the first permit term and the frequency that they will be monitored, as required under § 125.95 ( b)( 4)( ii)( A); a list of activities and schedule to optimize efficacy of installed technology within the first permit term, as required under § 125.95 ( b)( 4)( ii)( B); and, when applying for reissuance of the permit, the facility must submit, in accordance with § 125.95 ( b)( 4)( ii)( C), the results of the Verification Monitoring Plan as stipulated under § 125.95 ( b)( 8).

Information to Support Proposed Restoration Measures. If the facility proposes to use restoration measures, the following information, as required under § 125.95 ( b)( 5)

must be submitted:

 a list and narrative description of the restoration measures the facility has selected and proposes to implement to increase fish and shellfish [ § 125.95 ( b)( 5)( ii)];

 a quantification of the combined benefits from implementing design and construction technologies, operational measures and/ or restoration measures and the proportion of the efficacy that can be attributed to each. This quantification must include: ( 1) the absolute and percent reduction in impingement mortality and entrainment that would be achieved through the use of any design and construction technologies or operational measures that the facility has selected ( i. e., the benefits the facility would achieve through impingement and entrainment reduction); ( 2) a demonstration of the increase in fish and shellfish that can be attributed to the restoration measures the facility has selected; and ( 3) a demonstration that the combined efficacy of the design and construction technology( ies), operational measures, and/ or restoration measures will maintain fish and shellfish at a level comparable to that which the facility would achieve were it to implement the requirements of § 125.94. If it is not possible to demonstrate quantitatively that restoration measures will meet the performance standards, the facility may make a qualitative demonstration that such measures will maintain fish and shellfish in the waterbody at a level substantially similar to that which would be achieved under § 125.94 [ § 125.95 ( b)( 5)( iii)];

 a plan for implementing and maintaining the efficacy of the restoration measures selected and supporting documentation to show that the restoration measures, or the restoration measures in combination with design and construction 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 33 technology( ies) and operational measures, will meet the applicable performance standards under § 125.94 [ § 125.95 ( b)( 5)( iv)];

 a summary of any past, ongoing, or voluntary consultation with appropriate Federal, State, and Tribal fish and wildlife agencies regarding the proposed restoration measures that is relevant to this Study and a copy of any written comments received [ § 125.95 ( b)( 5)( v)];

 design and engineering calculations, drawings, and maps documenting that the proposed restoration measures in combination with design and construction technologies and/ or operational measures or alone will maintain fish and shellfish within the waterbody, including community structure and function, at a substantially similar level to that which would be achieved if you were to employ design and construction technologies or operational measures to meet the performance standards [ § 125.95 ( b)( 5)( vi)]; and  a final report from an independent peer review of the items submitted for this section [ § 125.95 ( b)( 5)( vii)];.

Information to Support Site specific Determination of Best Technology Available for Minimizing Adverse Environmental Impact. If the facility chooses to request a site specific determination of BTA, the facility must provide, as required under § 125.95 ( b)( 7), the following additional information with its application:

 Comprehensive Cost Evaluation Study. The facility must perform and submit, in accordance with § 125.95 ( b)( 7)( i), the results of a comprehensive cost evaluation study that documents the costs of implementing the design and construction technology plan under § 125.95( b)( 4)( i) and the costs of the alternative technologies, operational, and restoration measures the facility proposes to implement at the site to meet the site specific performance requirements. The facility must submit detailed engineering cost estimates to document the costs of implementing the technologies or operational measures in the design and construction technology plan.

 Valuation of the Monetized Benefits of Reducing Impingement Mortality and Entrainment. If the facility is seeking a site specific determination of BTA because of costs wholly out of proportion to the benefits of complying with the otherwise applicable requirements of § 125.94( a) and ( d), the facility must use, in accordance with § 125.95 ( b)( 7)( ii), a comprehensive methodology to fully value the impacts of impingement mortality and entrainment at the site and the benefits achievable by compliance with the applicable requirements of § 125.94. The benefit study must include the following: a description of the methodology( ies) 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 34 used to value commercial, recreational, and ecological benefits ( including nonuse as required under § 125.95( b)( 7)( ii)( A); documentation of the basis for any assumptions and quantitative estimates, as required under § 125.95( b)( 7)( ii)( B); an analysis of the effects of significant sources of uncertainty on the results of the study, as required under § 125.95( b)( 7)( ii)( C); and a final report from an independent peer review of the items submitted, as required under § 125.95( b)( 7)( ii)( D).

 Identification and Description of Qualitative and Non Monetized Benefits. As required under § 125.95 ( b)( 7)( iii), the facility must identify and provide a narrative description of any qualitative and non monetized benefits that would be realized at the site if the performance standards were met.

 Site Specific Technology Plan. Based on the results of the comprehensive cost evaluation study, the identification and description of qualitative and nonmonetized benefits, and the valuation of the monetized benefits of reducing impingement and entrainment required by § 125.95( b)( 7)( i),( ii) and ( iii), the facility must submit a site specific technology plan that contains the following information in accordance with § 125.95 ( b)( 7)( iv):

# a narrative description of the design and operation of all design and construction technologies and operational measures and restoration measures ( existing and proposed) that the facility has selected in accordance with § 125.94( c) [ § 125.95 ( b)( 7)( iv)( A)];

# an engineering estimate of the efficacy of the proposed and/ or implemented technologies, operational measures, and/ or restoration measures. This estimate must include a site specific evaluation of the suitability of the technologies or operational measures and/ or restoration measures for reducing impingement mortality and entrainment based on representative studies ( e. g., studies that have been conducted at cooling water intake structures located in the same waterbody type with similar biological characteristics) and/ or site specific technology prototype studies. If restoration measures will be used, an estimate must be provided of the increase fish and shellfish within the watershed [ § 125.95 ( b)( 7)( iv)( B)];

# documentation which demonstrates that the technologies, operational measures or restoration measures selected would meet performance requirements of § 125.94 [ § 125.95 ( b)( 7)( iv)( C)]; and # design calculations, drawings, and estimates to support the descriptions required by § 125.95( b)( 7)( iv)( A) and ( B) [ § 125.95 ( b)( 7)( iv)( D)]. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 35 Verification Monitoring Plan. The Study must include a plan to conduct, at a minimum,

two years of monitoring to verify the full scale performance of the proposed or implemented technologies, operational measures or restoration measures. As stipulated in § 125.95 ( b)( 8), the verification study must begin once the technologies, operational measures and restoration measures are implemented and continue for a period of time that is sufficient to demonstrate that the facility is meeting the performance standards of § 125.94. The plan must describe the frequency of monitoring and the parameters to be monitored and the basis for determining the parameters and the frequency and duration for monitoring.

Annual Reporting Requirements In addition to the one time reporting requirements, facilities would be required to provide the following information to the Director in a yearly status report:

° monitoring records as required by § 125.97( a) and § 125.97( b).

Record Keeping Requirements All operators of Phase II existing facilities would be required to keep records and to report information and data to the permitting authority to show compliance with any requirements to which they are subject. Records would be required to be maintained for a period of at least three years from the date of permit issuance unless extended by the request of the Director. Each operator would be required to maintain records of:

° all data used to complete the permit application and show compliance with the requirements ° any supplemental information developed under § 125.95 ° any compliance monitoring data submitted under § 125.96.

4b( ii) Respondent Activities As mentioned above, respondents would include both existing facilities and NPDES permit program Directors. Their information collection activities are described below. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 36 Permit Application Activities All facilities and Directors will need to perform start up activities such as: reading the rule,

planning for the implementation of the rule, and training staff to perform various tasks necessary to comply with the rule. Activities performed during the permit application process are performed only once during each ICR period. However, these application activities are repeated again during the fifth year of the permit cycle as part of the permit renewal process.

A. General Information Phase II existing facilities must perform several data gathering activities as part of the permit application process. Under the final rule, all Phase II existing facilities would be required to gather application information as specified by 40 CFR 122.21( r) so that the Director can evaluate the potential impact to the waterbody in which the intake structure is located. The information collected under 40 CFR 122.21( r) includes source water physical data, cooling water intake structure data, and a Phase II existing facility cooling water system description.

Activities that would be required to report on source water physical data include:

describing the physical configuration of the source waterbody where each CWIS is located, including areal dimensions, depths, salinity and temperature regimes and providing other documentation that supports the determination of waterbody type;

preparing scaled drawings showing the physical configuration of the source waterbody;

characterizing and documenting the hydrological and geomorphological features of the source waterbody;

conducting physical studies to determine the intake's area of influence within the waterbody and summarizing the results of such studies ( including a description of methods used);

preparing locational maps; and 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 37

maintaining copies of these documents as well as copies of any information used in their development for a period of three years after submittal.

Activities that would be required to report on cooling water intake structure data include:

° preparing a narrative description of the configuration of each CWIS and its location within the waterbody and in the water column;

° measuring and documenting the latitude and longitude of each CWIS in degrees, minutes,

and seconds;

° developing a narrative that describes the operation of each CWIS, including design flows,

daily hours of operation, number of days of the year in operation, and seasonal changes, if applicable;

° developing a flow distribution and water balance diagram for the facility that includes all sources of water to the facility, recirculating flows, and discharges ° creating engineering drawings and locational maps in support of the CWIS descriptions mentioned; and ° maintaining copies of these documents as well as copies of any information used in their development for a period of three years after submittal.

Activities that would be required to report the Phase II existing facility cooling water system data include:

preparing a narrative description of the operation of each of the facility's cooling water systems, relationship to the cooling water intake structure( s), proportion of design flow that is used in the system, number of days of the year in operation and seasonal changes, if applicable;

producing the necessary engineering calculations and supporting data to support the narrative description; and

maintaining a copy of the description and information required to support its development for three years after submittal.

B. Comprehensive Demonstration Study ( Study)

Phase II existing facilities ( except those deemed to have met the performance standard in accordance with § 125.94( a)( 1)) are required to gather and submit additional information in the form of a Comprehensive Demonstration Study to characterize the source water baseline in the vicinity of the intake, characterize the operation of the intake, and confirm that the 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 38 technology( ies), operational measures and restoration measures proposed and/ or implemented at the intake meet the applicable performance standards.

As part of the Study, the facility must develop and submit a proposal for the collection of information to support the Study. Activities include:

° developing a description of the proposed and/ or implemented technologies, operational measures and restoration measures to be evaluated in the Study;

° developing a list and description of any historical studies characterizing impingement and entrainment and/ or the physical and biological conditions in the vicinity of the intakes and their relevancy to the Study;

° collecting information to demonstrate the extent to which the existing data are representative of current conditions, are sufficient to develop a scientifically valid estimate of impingement and entrainment, and were collected using appropriate quality assurance/ quality control procedures;

° developing a summary of any consultation with appropriate Federal, State and Tribal fish and wildlife agencies that is relevant to the Study and documenting any written comments received;

° developing a sampling plan for any new field studies that are proposed to be conducted;

° documenting all methods and quality assurance procedures for sampling and data analysis ° developing a description of the study area ( including the area of influence of the cooling water intake structure); taxonomic identification of the sampled or evaluated biological assemblages ( including all life stages of fish and shellfish); and sampling and data analysis methods;

° preparing and submitting the proposal for the collection of information;

° maintaining records of all materials used to develop the proposal for a period of three years after submittal.

As part of the Study, facilities with intakes located on freshwater rivers/ streams or lakes/ reservoirs must also submit source waterbody flow information. Activities include:

° developing a narrative describing the annual mean flow of the waterbody if the CWIS is located in a freshwater river or stream,

° developing a narrative description of the waterbody thermal stratification if the CWIS is located in a lake or reservoir ° gathering and producing supporting documentation 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 39 ° performing engineering calculations to support the analysis of the applicable requirements;

and ° maintaining a record of pertinent documents for three years after submittal.

As part of the Study, the facility must also perform an Impingement Mortality and Entrainment Characterization Study to provide information to support the development of a calculation baseline for evaluating impingement mortality and entrainment and to characterize current impingement and entrainment. Activities include:

° developing a taxonomic identification of those species of fish and shellfish and their life stages that are in the vicinity of the intake and are most susceptible to impingement and entrainment;

° developing a description of the abundance and temporal/ spatial characterization of the fish and shellfish and their life stages that are in the vicinity of the intake and are most susceptible to impingement and entrainment based on several years of data;

° collecting a sufficient number of years of data to characterize annual, seasonal and daily variations in impingement mortality and entrainment;

° documenting current impingement mortality and entrainment of all life stages of fish and shellfish at the facility and estimating of impingement mortality and entrainment under the calculation baseline;

° identifying species that are protected under Federal, State or Tribal law ( including threatened and endangered species) that might be susceptible to impingement and entrainment by the CWIS; and ° maintaining a copy of the study and the materials required to produce it for three years after submittal.

If the facility chooses to use design and construction technologies or operational measures in whole or in part to meet the requirements of § 125.94, the facility must also submit a Design and Construction Technology Plan as part of the Study. And, depending on the compliance alternative selected, the facility may also need to submit the Technology Installation and Operation Compliance Plan. For the Design and Construction Technology Plan, activities include:

° calculating the capacity utilization rate for the facility and collecting supporting data;

° developing narrative descriptions of the design and operation of all design and construction technologies or operational measures ( existing and proposed), including fishhandling and return systems, that the facility has in place or that will be used to meet the 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 40 requirements to reduce impingement mortality of those species expected to be the most susceptible to impingement and reduce entrainment of those species expected to be the most susceptible to entrainment;

° collecting information to demonstrate the efficacy of the technology for those species expected to be the most susceptible to impingement and reduce entrainment of those species expected to be the most susceptible to entrainment;

° calculating and documenting the current impingement mortality and entrainment of all life stages of fish and shellfish at the facility to serve as a baseline;

° calculating the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would be achieved by the technologies and operational measures the facility has selected;

° a site specific evaluation of the suitability of the technology( ies) based on the species that are found at the site, and/ or operational measures and may be determined based on representative studies ( i. e., studies that have been conducted at cooling water intake structures located in the same waterbody type with similar biological characteristics)

and/ or site specific technology prototype studies;

° producing the necessary design calculations, drawings, and estimates to support the narrative descriptions ° maintaining records of all materials used to develop the design and construction technology plan for a period of three years after submittal.

If the facility proposes to measure compliance during the first permit term after promulgation using the Technology Installation and Operation Compliance Plan in accordance with § 125.94( e), the facility must submit the following information:

° list of operational parameters to be monitored during the first permit term and the associated monitoring frequency;

° list of activities and schedule to optimize efficacy of installed technology within the first permit term; and ° when applying for reissuance of the permit, the results of the Verification Monitoring Plan must be submitted.

If the facility proposes to use restoration measures, the facility must also submit Information to Support Proposed Restoration Measures as part of the Study. Activities include:

developing a list of the restoration measures that the facility has selected and proposes to implement 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 41

collecting information and performing calculations to quantify the combined benefits from implementing design and construction technologies, operational measures and/ or restoration measures, and the proportion of the benefits that can be attributed to each

developing a plan for implementing and maintaining the efficacy of the restoration measures

preparing supporting documentation to show that the restoration measures will maintain the fish and shellfish in the waterbody, including the community structure and function, to a level comparable or substantially similar to that which would be achieved under § 125.94

consulting with appropriate fishery and wildlife management agency( ies) and preparing documentation of the consultation activities

performing design and engineering calculations supporting the proposed restoration measures

preparing supporting drawings and maps

maintaining a copy of the information for three years after submittal.

As part of the Study, the facility must also prepare a Verification Monitoring Plan to conduct, at a minimum, two years of monitoring to verify the full scale performance of the proposed or implemented technologies, operational measures or restoration measures. The verification study must begin once the technologies, operational measures or restoration measures are implemented and continue for a sufficient period of time to demonstrate that the facility is meeting the performance standards in § 125.94. Activities include:

° developing a narrative description of the frequency of monitoring and the parameters to be monitored and the information that will be included in the yearly status report;

° developing a narrative description of the basis for determining the parameters and the frequency and duration of monitoring;

° performing the verification study and documenting monitoring results; and ° maintaining copies of the Verification Monitoring Plan and monitoring records, along with the materials required to produce them for three years after submittal. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 42 C. Information to Support Site Specific Determination of Best Technology Available for Minimizing Adverse Environmental Impact As an alternative to demonstrating that their existing or selected technologies, operational measures or restoration measures meet the performance standards specified in § 125.94, facilities may request site specific determinations of best technology available for minimizing adverse environmental impact because of costs wholly out of proportion to those considered by the Administrator in establishing the applicable performance standards, or because costs are wholly out of proportion to the benefits of complying with the otherwise applicable requirements of § 125.94( a) and ( d) at the site. Facilities that choose to request site specific determinations of BTA must submit additional information as part of their Study, including a comprehensive cost evaluation study, a valuation of monetized benefits of reducing impingement and entrainment, an identification and description of qualitative and non monetized benefits, and a site specific technology plan.

Activities that would be required for the comprehensive cost evaluation study include:

producing detailed engineering cost estimates to document the costs of implementing the technologies or operational measures in the design and construction technology plan;

producing detailed engineering cost estimates to document the costs of the alternative technologies and operational measures proposed to be implemented at the facility;

producing the necessary engineering calculations, drawings and narrative descriptions to support the cost estimates;

documenting and submitting the results of the comprehensive cost evaluation study; and

maintaining records of all materials used to develop the comprehensive cost evaluation study for a period of three years after submittal.

For facilities that seek a site specific determination of BTA because of costs wholly out of proportion to the benefits of complying with the otherwise applicable requirements of § 125.94,

the activities required for the valuation of the monetized benefits of reducing impingement and entrainment include:

developing a comprehensive methodology to fully value the commercial, recreational, and ecological benefits;

developing documentation for the basis of assumptions and quantitative estimates;

producing an analysis of the effects of significant sources of uncertainty on the results of the study; 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 43

preparing a final report from an independent peer review of items submitted;

documenting and submitting the results of the valuation of the monetized benefits of reducing impingement and entrainment; and

maintaining records of all materials used to develop the valuation of the monetized benefits of reducing impingement and entrainment for a period of three years after submittal.

Activities required to identify and describe qualitative and non monetized benefits include:

identifying and providing a narrative description of any qualitative and non monetized benefits that would be realized at the site if the performance standards were met.

Activities required to produce the site specific technology plan include:

developing narrative descriptions of the design and operation of all design and construction technologies, operational measures and restoration measures ( existing and proposed) that the facility has selected;

collecting information to demonstrate the efficacy of the selected technologies;

developing an engineering estimate of the efficacy of the proposed and/ or implemented technologies or operational measures for reducing impingement mortality and entrainment;

developing a site specific evaluation of the suitability of the technologies or operational measures for reducing impingement mortality and entrainment based on the results of the Impingement Mortality and Entrainment Characterization Study;

characterizing efficacy estimates based on representative studies and/ or site specific technology prototype studies;

developing documentation to demonstrate that the technologies, operational measures, or restoration measures selected would reduce impingment mortality and entrainment to the extent necessary to satisfy the requirements of § 125.94;

producing the necessary design calculations, drawings and estimates to support the narrative descriptions; and

maintaining records of all materials used to develop the site specific technology plan for a period of three years after submittal. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 44 Annual Activities A. Biological Monitoring All Phase II existing facilities would need to monitor both impingement and entrainment of the commercial, recreational and forage base fish and shellfish species and their life stages identified in the Impingement Mortality and Entrainment Characterization Study. The monitoring methods used must be consistent with those used for the Impingement Mortality and Entrainment Characterization Study. The facility must follow the monitoring frequencies identified below for at least two years after the initial permit issuance. After that time, the Director may approve a request for less frequent sampling in the remaining years of the permit term and when the permit is reissued, if supporting data show that less frequent monitoring would still allow for the detection of any seasonal and daily variations in the species and numbers of individuals that are impinged or entrained.

Impingement monitoring involves collecting data on aquatic organisms trapped on the outer part of an intake structure or against screening devices during periods of cooling water withdrawal, to determine the taxa and abundance of impinged organisms. Specific monitoring activities include:

° collecting samples to monitor impingement rates for each species over a 24 hour period,

no less than once per month when the CWIS is in operation;

° enumerating impinged organisms;

° performing statistical analyses to summarize rates; and ° maintaining records of impingement monitoring results for at least three years.

Entrainment monitoring involves the collection of data on eggs, larvae, and other plankton incorporated with cooling water flow ( entering and passing through a cooling water intake structure and into a cooling water system), to determine the taxa and abundance of entrained organisms. Specific activities include:

° collecting samples to monitor entrainment rates for each species over a 24 hour period, no less than biweekly during the primary period of reproduction, larval recruitment, and peak abundance when the CWIS is in operation;

° enumerating entrained organisms;

° performing statistical analyses to summarize entrainment rates; and ° maintaining records of entrainment monitoring results for at least three years. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 45 B. Yearly Status Report All Phase II existing facilities subject to the final rule would be required to prepare and submit a yearly status report that details compliance with requirements set by the rule and with any additional provisions specified within the permit. Preparation of the report requires:

° compiling biological monitoring records for each CWIS;

° compiling records of visual or remote inspections; and ° maintaining a copy of the report for a period of three years after its submission.

Director Activities NPDES program Directors will act to ensure the implementation of the final rule as required under § 125.98. To successfully meet their responsibilities, EPA anticipates that Directors will be involved in the following activities, as stipulated under § 125.98( a) and § 125.98( b):

° reading and understanding the rule;

° mobilization and planning; and ° training facility and consultant staff.

The Director should review materials submitted by the applicant prior to each renewal period to determine if there have been any changes in facility operations or physical and biological attributes of the source waterbody. Any changes should be evaluated to determine the need for additional or more stringent conditions in the permit.

Section 316( b) requirements are implemented for a facility through an NPDES permit.

The Director must determine, based on the information submitted by the existing facility in its permit application, the appropriate requirements and conditions, as described in § 125.98( b)( 1)

through § 125.98( b)( 4) to include in the permit based on the alternative for establishing BTA chosen by the facility. Specific activities include:

° reviewing and analyzing facility data;

° making determinations concerning facilities such as: 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 46  after receiving the initial permit application, the Director must determine applicable standards in § 125.94 to apply to the existing facility and determine compliance with the applicable standards;

 for each subsequent permit renewal, the Director must review the application materials and monitoring data to determine whether requirements, or additional requirements, for design and construction technologies, operational measures,

and/ or restoration measures should be included in the permit to meet the performance standard;

 the Director must develop permit conditions that, at a minimum, include the requirements that implement the provisions of § 125.94( a)( 1),( 2), and ( 3); § 125.94( b)( 1),( 2),( 3) and ( 4); § 125.94( c)( 1),( 2) and ( 3); § 125.94( d); § 125.94( e)( i) and ( ii); § 125.94( f) and § 125.94( g). In determining compliance with flow requirements in § 125.94( a)( 3)( ii), the Director must consider anthropogenic factors ( those not considered " natural") unrelated to the Phase II existing facility's cooling water intake structure that can influence the occurrence and location of a thermocline, including source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow/ level management practices. The Director must coordinate with appropriate Federal, State or Tribal fish or wildlife agencies to determine if the disruption is beneficial to the management of the fisheries [ § 125.98( b)( 1)].

 the Director must review the Design and Construction Technology Plan required in § 125.95( b)( 4) to evaluate the suitability and feasibility of the technology or operational measures proposed to minimize impingement mortality and entrainment of all life stages of fish and shellfish. In each reissued permit, the Director must include a condition requiring the facility to reduce impingement mortality and entrainment commensurate with the efficacies of the installed design and construction technologies, operational measures or restoration measures, but not less than the performance standards in § 125.94. If the facility chooses to measure compliance for the first permit term employing the Technology Installation and Operation Plan in § 125.94( e), the Director must review and approve the plan and require the facility to meet the terms of the plan. In considering the permit application, the Director must review the performance of the technologies implemented and require additional or different design and construction technologies, if needed, to meet the impingement mortality and entrainment reduction requirements for all life stages of fish and shellfish. In addition, the Director must consider any chemical, water quality, and other 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 47 anthropogenic stresses on the source waterbody and whether more stringent conditions are reasonably necessary in accordance with § 125.94( e)

[ § 125.98( b)( 1)( i)].

 if the Director determines that restoration measures are appropriate at the Phase II existing facility, the Director must review the Information to Support Proposed Restoration Measures required under § 125.95 ( b)( 5) and determine whether the proposed measures will maintain the fish and shellfish in the waterbody at a substantially similar level to that which would be achieved under § 125.94. If the application includes a qualitative demonstration for restoration measures that will result in increases in fish and shellfish that are difficult to quantify, the Director must determine whether the proposed measures will maintain fish and shellfish in the waterbody at a level substantially similar to that which would be achieved under § 125.94. The Director must also review and approve the proposed verification monitoring plan submitted and require that the monitoring continue for a sufficient period of time to demonstrate that the restoration measures meet the requirements of § 125.94( d) and § 125.95( b)( 8).

 for a facility that requests requirements based on site specific BTA for minimizing adverse environmental impact, the Director must review the application materials and any other information the Director may have that would be relevant to a determination of whether alternative requirements are appropriate for the facility.

If the Director determines that alternative requirements are appropriate, the Director must make a site specific determination of BTA in accordance with § 125.94( c) [ § 125.98( b)( 1)( iii)].

 at a minimum, the permit must require the permittee to perform the monitoring required in § 125.96. The Director may modify the monitoring program when the permit is reissued and during the term of the permit based on changes in physical or biological conditions in the vicinity of the CWIS. The Director may require continued monitoring based on the results of the Verification Monitoring Plan in § 125.95( b)( 8).

 at a minimum, the permit must require the permitee to report and keep records as required by § 125.97.

 for a facility that requests requirements based on site specific best technology available for minimizing adverse environmental impact, the Director must review the application materials and any other information they may have that would be relevant to a determination of whether alternative requirements are appropriate for the facility. If the Director determines that alternative requirements are appropriate, he/ she must make a site specific determination of best technology 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 48 available for minimizing adverse environmental impact in accordance with § 125.94( c).

 the Director may demonstrate to the Administrator that the State or Tribe has adopted alternative regulatory requirements that will result in environmental performance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved by the requirements of § 125.94.

 the Director may establish more stringent requirements as BTA if the Director determines that the facility's compliance with the applicable requirements of paragraphs § 125.94( b) and ( c) would not ensure compliance with Federal, State,

or Tribal law [ § 125.98( b)( 1)( i)]

 if the Nuclear Regulatory Commission has determined that a facility's compliance with § 125.94 would result in a conflict with a safety requirement established by the Commission, the Director must make a site specific determination of BTA that is less stringent than the requirements of § 125.94 to the extent necessary for the facility to comply with the Commission's safety requirement facility compliance tracking  record keeping for all reports, documents, and supporting materials submitted by facilities in fulfilment of their cooling water intake requirements of their NPDES permit [ § 125.98( b)( 3)]. 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 49 5 THE INFORMATION COLLECTED  AGENCY ACTIVITIES, COLLECTION, METHODOLOGY AND INFORMATION MANAGEMENT The following sections describe EPA activities related to analyzing, maintaining, and distributing the information collected.

5a Agency Activities EPA is responsible for promulgating this rule and overseeing its implementation.

Implementation of reporting and monitoring requirements would rely extensively on State governments in those States that have authorization under CWA Section 402( b) to implement the NPDES permit program. In States that do not have NPDES permitting authority, EPA is responsible for administering the program. Under these circumstances, EPA performs the same activities as those outlined for Directors in Section 4.

EPA will also be involved in the review of State issued NPDES permits for compliance with Section 316( b) Phase II Existing Facility Regulation requirements. EPA typically reviews NPDES permits in the early stages of implementation of new regulations. As such, EPA assumes that it will perform a detailed review, make comments, and follow up on comments for the 316( b)

portions of State issued NPDES permits, during the first three years after promulgation.

5b Collection Methodology and Information Management The final rule provides minimum requirements regarding the type of information collected.

Directors of NPDES programs are primarily responsible for determining which collection method and information management strategy is most appropriate. EPA will maintain some of the compliance data in its Permit Compliance System ( PCS) database. PCS is the national computerized management information system that automates entry, updating, and retrieval of NPDES data and tracks permit issuance, permit limits and monitoring data, and other data pertaining to facilities regulated under NPDES. This technology reduces the burden to the permitting authority of gathering, analyzing, and reporting national permit and water quality data.

Permitting authorities are responsible for reviewing permit applications, permits,

monitoring reports, etc. to verify the accuracy of the data. Permitting authorities are also responsible for entering that data into PCS. Different authorities have different approaches for 12/ 23/ 03 Internal Final Agency Review Draft Predecisional, Deliberative Do not quote, cite or release 50 entering the data into PCS and different approaches for checking data quality. This includes the use of coding forms, double entry, technical review, etc. Many states have developed state databases that are tailored to individual state needs with the system formatted for uploads directly to PCS from the state system. Permit data can be accessed by the public in one of two ways:

$ via the Freedom of Information Act ( FOIA) by submitting a request to EPA or the State.

$ via an on line query using EPA's Envirofacts Data Warehouse and Applications website at http:// www. epa. gov/ enviro/ index_ java. html. Accessing data via Envirofacts provides a method to combine PCS data with other EPA databases and mapping tools.

5c Small Entity Flexibility The final rule's minimum design intake flow requirements would exclude most existing small entities from the compliance requirements. As a result, the final rule is expected to affect only a small absolute number of facilities owned by small entities, representing a very small percentage of all facilities owned by small entities in the electric power industry. EPA has estimated that 25 in scope electric generators owned by small entities ( out of a total of 543 estimated in scope electric generators) would be regulated by this final rule. Of the 25 generators, 16 are projected to be owned by a municipality, six by a rural electric cooperative,

two by a municipal marketing authority, and one by a political subdivision. In addition, EPA estimates that only a small percentage of all small entities in the electric power industry,

approximately 1.3 percent, would be subject to the final rule.