[Federal Register Volume 81, Number 197 (Wednesday, October 12, 2016)]
[Notices]
[Pages 70421-70422]
[FR Doc No: 2016-24662]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2010-0291; FRL-9953-81-OECA]

Proposed Information Collection Request; Comment Request; State
Review Framework; EPA ICR No. 2185.06; OMB Control No. 2020-0031

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency is planning to submit a
request to renew an existing approved collection request (ICR), ``State
Review Framework'' (EPA ICR No. 2185.06, OMB Control No. 2020-0031) to
the Office of Management and Budget (OMB) for review and approval in
accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Before doing so, EPA is soliciting public comments on specific aspects
of the proposed information collection as described below. This is a
proposed extension of the ICR, which is currently approved through
February 28, 2017. An Agency may not conduct or sponsor and a person is
not required to respond to a collection of information unless it
displays a currently valid OMB control number.

DATES: Comments must be submitted on or before December 12, 2016.

ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-OECA-
2010-0291 online using www.regulations.gov (our preferred method), or
by mail to: EPA Docket Center, Environmental Protection Agency, Mail
Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Christopher Knopes, Office of
Enforcement and Compliance Assurance, Office of Compliance;
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Supporting documents which explain in detail
the information that the EPA will be collecting are available in the
public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit http://www.epa.gov/dockets.
    Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting
comments and information to enable it to: (i) Evaluate whether the
proposed collection of information is necessary for the proper
performance of the functions of the Agency, including whether the
information will have practical utility; (ii) evaluate the accuracy of
the Agency's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (iii) enhance the quality, utility, and clarity of the
information to be collected; and (iv) minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses. EPA
will consider the comments received and amend the ICR as appropriate.
The final ICR package will then be submitted to OMB for review and
approval. At that time, EPA will issue another Federal Register notice
to announce the submission of the ICR to OMB and the opportunity to
submit additional comments to OMB.
    Abstract: The State Review Framework is an oversight tool designed
to assess state performance in enforcement and compliance assurance.
The Framework's goal is to evaluate state performance by examining
existing data to provide a consistent level of oversight and develop a
uniform mechanism by which EPA Regions, working collaboratively with
their states, can ensure that state environmental agencies are
consistently implementing the national compliance and enforcement
program in order to meet agreed-upon goals. Furthermore, the Framework
is designed to foster dialogue on enforcement and compliance
performance between the states that will enhance relationships

and increase feedback, which will in turn lead to consistent program
management and improved environmental results. The Framework is
described in the April 26, 2005 Federal Register Notice (79 FR 21408).
This request will allow OECA to collect information from enforcement
and compliance files reviewed during routine on-site visits of state or
local agency offices that will assist in the evaluation of the State
Review Framework implementation from FY 2017 to the end of FY 2019. It
will allow also EPA to make inquiries to assess the State Review
Framework process, including the consistency achieved among the EPA
Regions and states, the resources required to conduct the reviews, and
the overall effectiveness of the program.
    Form Numbers: None.
    Respondents/affected entities: States, localities, and territories.
    Respondent's obligation to respond: Required as part of program
authorization under the Clean Water, Clean Air, and Resource
Conservation and Recovery Acts.
    Estimated number of respondents: 54.
    Frequency of response: Once every five years.
    Total estimated burden: 2,765 hours (per year). Burden is defined
at 5 CFR 1320.03(b)
    Total estimated cost: $108,649 (per year), includes $0 annualized
capital or operation & maintenance costs.
    Changes in Estimates: There is decrease of 2,862 hours (per year)
in the total estimated respondent burden compared with the ICR
currently approved by OMB. This decrease reflects full implementation
of efficiencies instituted just prior to the submittal of the currently
approved ICR in addition to continued experience on the part of
respondents with the review process. Also, adjustments were made to the
estimates because several alternative respondents were consulted to who
had completed a more recent review.

    Dated: September 20, 2016.
Michael Mason,
Branch Chief, State and Tribal Performance Branch, Office of
Compliance.
[FR Doc. 2016-24662 Filed 10-11-16; 8:45 am]
BILLING CODE 6560-50-P


Convening Document of the Small Business Advocacy Review Panel on EPA's Planned Proposed Rule for Cooling Water Intake Structures at Section 316( b) Phase III Facilities February 23, 2004 Table of Contents 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Background and Regulatory History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.1 Regulatory History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.2 Description of Rule and its Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.3 Related Federal Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Overview of Proposal Under Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1 Potential Requirements and Guidelines of the Proposal . . . . . . . . . . . . . . . . . . . . 8 3.2 Options Likely to be Proposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4. Applicable Small Entity Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5. Small Entities That May Be Subject to the Proposed Regulation . . . . . . . . . . . . . . . . . 13 6. Summary of Small Entity Outreach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7. List of Small Entity Representatives ( SERS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 8. Summary of Comments from Small Entity Representatives . . . . . . . . . . . . . . . . . . . . . . 20 8.1 Number and Types of Entities Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8.2 Potential Reporting, Record Keeping, and Compliance . . . . . . . . . . . . . . . . . . . 20 8.3 Related Federal Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 8.4 Regulatory Flexibility Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Appendices Appendix A: List of Materials EPA Shared With Potential SERs . . . . . . . . . . . . . . . . 25 Appendix B: Summary from EPA's Outreach Meeting with Potential SERs . . . . . . . . 26 Appendix C: Written Comments Received from Potential SERs . . . . . . . . . . . . . . . . . 33 1 Convening Document for the Small Business Advocacy Review Panel on EPA's Planned Proposal of Regulations to Establish Requirements for Cooling Water Intake Structures at Section 316( b) Phase III Facilities 1. INTRODUCTION This report is presented to the Small Business Advocacy Review Panel ( SBAR Panel or Panel) convened for the proposed rulemaking on the Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Section 316( b) Phase III Facilities, currently being developed by the U. S. Environmental Protection Agency ( EPA). Under section 609( b) of the Regulatory Flexibility Act ( RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 ( SBREFA), a Panel is required to be convened prior to publication of the initial regulatory flexibility analysis ( IRFA) that an agency may be required to prepare under the RFA. In addition to EPA's Small Business Advocacy Chairperson ( Mr. Alexander Cristofaro), the Panel will consist of the Director of EPA's Engineering and Analysis Division within the Office of Water ( Ms. Mary T. Smith), the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget ( Mr. John D. Graham), and the Chief Counsel for Advocacy of the Small Business Administration ( Mr. Thomas M. Sullivan).

This report includes the following:

background information on the proposed rule being developed;

information on the types of small entities that would be subject to the proposed rule;

a description of efforts made to obtain the advice and recommendations of representatives of those small entities; and a summary of the comments that have been received to date from those representatives.

Section 609( b) of the RFA directs the Panel to report on the comments of small entity representatives and make findings on issues related to identified elements of IRFA under section 603 of the RFA. Those elements of an IRFA are:

° a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

° projected reporting, record keeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirements and the type of professional skills necessary for preparation of the report or record; 1 33 U. S. C. 1251 et seq.

2 ° an identification, to the extent practicable, of all other relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule;

° any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities; and,

° any impacts on small entities, such as your business or community, of the proposed rule or significant alternatives to the proposed rule.

Once completed, the Panel report is provided to the agency issuing the proposed rule and included in the rulemaking record. In light of the Panel report, and where appropriate, the agency is to make changes to the draft proposed rule, the IRFA for the proposed rule, or the decision on whether an IRFA is required.

It is important to note that the Panel's findings and discussion will be based on the information available at the time the final Panel report is drafted. EPA will continue to conduct analyses relevant to the proposed rule, and additional information may be developed or obtained during the remainder of the rule development process. The Panel makes its report at a preliminary stage of rule development and its report should be considered in that light. At the same time, the report provides the Panel and the Agency with an opportunity to identify and explore potential ways of shaping the proposed rule to minimize the burden of the rule on small entities while achieving the rule's purposes.

Any options identified by the Panel for reducing the rule's regulatory impact on small entities may require further analysis and/ or data collection to ensure that the options are practicable, enforceable, environmentally sound, and consistent with the Clean Water Act ( CWA). 1 2 33 U. S. C. 1251 et seq.

3 33 U. S. C. 1251( a).

3 2. BACKGROUND AND REGULATORY HISTORY EPA is developing regulations under section 316( b) of the Clean Water Act. Section 316( b) requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available ( BTA) for minimizing adverse environmental impact. Nationwide, more than 1,500 industrial facilities use large volumes of cooling water from lakes, rivers, estuaries or oceans to cool their plants, including steam electric power plants, pulp and paper makers, chemical manufacturers, petroleum refiners, and manufacturers of primary metals like iron and steel and aluminum.

Cooling water intake structures can cause adverse environmental impact by pulling large numbers of fish and shellfish or their eggs into a power plant's or factory's cooling system ( entrainment). There, the organisms may be killed or injured by heat, physical stress, or by chemicals used to clean the cooling system. Larger organisms may be killed or injured when they are trapped ( impinged) against screens at the front of an intake structure.

2.1 Regulatory History The Federal Water Pollution Control Act, also known as the Clean Water Act ( CWA), 2 seeks to " restore and maintain the chemical, physical, and biological integrity of the nation's waters." 3 The CWA establishes a comprehensive regulatory program, key elements of which are ( 1) a prohibition on the discharge of pollutants from point sources to waters of the U. S., except as authorized by the statute; ( 2) authority for EPA or authorized States or Tribes to issue National Pollutant Discharge Elimination System ( NPDES) permits that regulate the discharge of pollutants; and ( 3) requirements for EPA to develop effluent limitation guidelines and standards and for States to develop water quality standards that are the basis for the limitations required in NPDES permits.

Under the CWA, section 316( b) addresses the adverse environmental impact caused by the intake of cooling water, not discharges into water. Despite this specific focus, the requirements of section 316( b) are closely linked to several of the core elements of the NPDES permit program established under section 402 of the CWA to control discharges of pollutants into navigable waters. For example, section 316( b) applies to facilities that withdraw water from the waters of the United States for cooling through a cooling water intake structure and are point sources subject to an NPDES permit. Conditions for implementing section 316( b) are included in NPDES permits. 4 41 FR 17387 ( April 26, 1976), proposed at 38 FR 34410 ( December 13, 1973).

5 Appalachian Power Co. v. Train, 566 F. 2d 451 ( 4th Cir. 1977).

6 44 FR 32956 ( June 7, 1979).

7 See Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316( b) P. L. 92   500 ( U. S. EPA, 1977).

8 Section 316( b) Draft Guidance, U. S. EPA, 1977, p. 4.

9 No. 93 Civ 0314 ( AGS).

4 In 1976, EPA published regulations to implement section 316( b) requirements. 4 The rule added a new § 401.14 to 40 CFR Chapter I that reiterated the requirements of CWA section 316( b). It also added a new part 402, which included three sections: ( 1) § 402.10 ( Applicability), ( 2) § 402.11 ( Specialized definitions), and ( 3) § 402.12 ( Best technology available for cooling water intake structures). These regulations were challenged by numerous electric utility companies and, ultimately, the United States Court of Appeals for the Fourth Circuit remanded the regulation based on its failure to comply with the requirements of the Administrative Procedure Act ( APA), but without reaching the merits of the regulations themselves. 5 EPA later withdrew part 402. 6 40 CFR 401.14 remains in effect.

Since the Fourth Circuit remanded EPA's section 316( b) regulations in 1977, NPDES permit authorities have made decisions implementing section 316( b) on a case by case, site specific basis. EPA published draft guidance addressing section 316( b) implementation in 1977.7 This draft guidance describes the studies recommended for evaluating the impact of cooling water intake structures on the aquatic environment and recommends a basis for determining the best technology available for minimizing adverse environmental impact. The 1977 section 316( b) draft guidance states, "[ T] he environmental intake interactions in question are highly site specific and the decision as to best technology available for intake design, location, construction, and capacity must be made on a case by case basis." 8 In the absence of national regulations, the case by case, site specific approach to implementing 316( b) has continued to the present. However, in the mid 1990' s a coalition of individuals and environmental groups brought suit against EPA for failing to promulgate national regulations needed to implement section 316( b) requirements. In Riverkeeper Inc., et al. v. Whitman, 9 a consent decree was initially entered on October 10, 1995, which provided that EPA 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 orders and an amended consent decree, the rulemaking has been divided into three phases and EPA is working under new deadlines, as described below: 5 Phase I Governing new facilities that employ a cooling water intake structure ( Final Rule published on December 18, 2001 at 66 Fed. Reg. 65256; upheld in all but one respect in Riverkeeper, et al. v. U. S. EPA, No. 02 4005 ( and consolidated cases) ( 2d Cir. Feb. 3, 2004));

Phase II   Governing existing facilities that employ a cooling water intake structure and whose primary activity is to generate and transmit electric power ( or to generate electric power for sale to another entity for transmission), if the facilities meet certain criteria, e. g. whose total design ( Final Rule signed on February 16, 2004).

Phase III ( Under Development)   Governing cooling water intake structures used by, at a minimum, smaller flow power plants and factories in four industrial sectors ( pulp and paper manufacturing, petroleum and coal products manufacturing, chemical and allied manufacturing, and primary metals manufacturing) ( signature on proposed rule due November 1, 2004; final action by June 1, 2006).

This convening document and the SER Panel will address only Phase III of the 316( b) regulations.

2.2 Description of Rule and its Scope EPA expects that the proposed Phase III cooling water intake regulation would address:

° existing power plants with design intake flows of less than 50 million gallons per day ( mgd) ( the Phase II regulation applies to power plants having intake flows of 50 mgd and greater); ° all other existing facilities that use cooling water intake structures ( e. g., manufacturing and industrial facilities); and, ° new facilities located offshore ( i. e., ships and platforms); specifically, ( a) new facilities regulated under the Offshore and Coastal Oil & Gas Extraction Point Source Category as defined at 40 CFR 435.10 and 40 CFR 435.40, and ( b) other " offshore" new facilities such as LNG ( liquified natural gas) regasification facilities and seafood processing vessels.

While the specific scope of the Phase III proposed rule has not been determined, it is expected that the basic criteria for determining applicability of the proposed rule will be similar to those of the Phase II regulation. As such, it is anticipated that a facility would need to meet the following conditions in order for the national requirements of a Phase III rule to apply:

° is a point source; ° must have ( or utilize) at least one cooling water intake withdrawing water from a " water of the U. S."; 6 ° must use at least 25 percent of its water intake for cooling purposes ( water that is reused in manufacturing processes before or after cooling is not regarded as cooling water); and,

° must have a design intake flow ( DIF) greater than " X" mgd, " X" being some threshold yet to be determined ( intakes below the threshold would be subject to case bycase determinations using best professional judgement).

2.3 Related Federal Rules While 316( b) pertains to the minimization of impacts at the intake, other sections of the CWA regulate the discharges of pollutants, including heat, from a facility. Specifically, section 316( a) addresses thermal discharges from facilities that are permitted under NPDES. It states that an " effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife." EPA has developed regulations to implement 316( a) requirements at 40 CFR 125, Subpart H.

The Phase III rulemaking is relatively independent of other federal rules. Clearly, however, the final Phase I ( new facilities) and proposed Phase II ( existing facilities with design intake flow over 50 mgd) 316( b) rules are integral to the implementation of Phase III and section 316( b) as a whole. Section 316( a) is also generally related to 316( b). Each of these is described in more detail below.

The Phase I cooling water intake regulation establishes the best technology available ( BTA), based on a two compliance track approach, for minimizing adverse environmental impact associated with the use of cooling water intake structures. Based on facility size, Track I establishes national intake capacity and velocity requirements as well as location and capacitybased requirements to reduce intake flow below certain proportions of certain waterbodies ( referred to as " proportional flow requirements"). It also requires the permit applicant to select and implement design and construction technologies under certain conditions to minimize impingement mortality and entrainment. Track II allows permit applicants to conduct site specific studies to demonstrate to the Director that alternatives to the Track I requirements will reduce impingement mortality and entrainment for all life stages of fish and shellfish to a level of reduction comparable to the level the facility would achieve at the cooling water intake structure if it met the Track I requirements. See 40 CFR Part 125, Subpart I.

The Phase II cooling water intake structure final rule implements section 316( b) for certain existing power producing facilities that employ a cooling water intake structure and that withdraw 50 mgd or more of water from rivers, streams, lakes, reservoirs, estuaries, oceans, or any other waters of the U. S. The Phase II final rule provides five compliance alternatives: 7 ( 1) Under § 125.94( a)( 1)( i) and ( ii), a Phase II existing facility may demonstrate that it has already reduced its flow commensurate with a closed cycle recirculating system, or that it has already reduced its design intake velocity to 0.5 ft/ s or less. If a facility can demonstrate to the Director that it has reduced, or will reduce, flow commensurate with a closed cycle recirculating system, the facility is deemed to have met the performance standards to reduce impingement mortality and entrainment ( see § 125.94 ( a)( 1)( i)). Those facilities would not be required to submit a Comprehensive Demonstration Study with their NPDES application. If the facility can demonstrate to the Director that is has reduced, or will reduce maximum through screen design intake velocity to 0.5 ft/ s or less, the facility is deemed to have met the performance standards to reduce impingement mortality only. If the facility is required to meet a performance standard only for impingement mortality but not for entrainment, it would not be required to submit a Comprehensive Demonstration Study with the NPDES application. A facility that is subject to the performance standard for entrainment would need to submit application studies related to entrainment reduction, but would avoid studies related to impingement mortality if it satisfied the velocity requirement.

( 2 and 3) Under § 125.94( a)( 2) and ( 3), a Phase II existing facility may demonstrate either that its current cooling water intake structure configuration meets the applicable performance standards, or that it has selected design and construction technologies, operational measures, and/ or restoration measures that, in combination with any existing design and construction technologies, operational measures, and/ or restoration measures, meet the specified performance standards in § 125.94( b) and/ or the requirements in § 125.94( c). Alternatives ( 2) and ( 3) would require a Comprehensive Demonstration Study whose detail and cost would vary depending on characteristics of the facility and waterbody.

( 4) Under § 125.94( a)( 4), a Phase II existing facility may demonstrate that it has installed and is properly operating and maintaining a rule specified and approved design and construction technology in accordance with § 125.99( a). Submerged cylindrical wedgewire screen technology is a rule specified design and construction technology that may be used in instances in which a facility's cooling water intake structure is located in a freshwater river or stream and meets other criteria specified at § 125.99( a). In addition, under this compliance alternative, a facility or other interested person may submit a request to the Director for approval of a different technology. If the Director approves the technology, it may be used by all facilities with similar site conditions under his or her jurisdiction if allowed under the State's administrative procedures. Alternative ( 4) would lead to permitting & monitoring requirements substantially less burdensome than a Comprehensive Demonstration Study.

( 5) Under § 125.94( a)( 5) ( i) or ( ii), if the Director determines that a facility's costs of compliance would be significantly greater than the costs considered by the Administrator for a like facility to meet the applicable performance standards, or that the costs of compliance would be significantly greater than the benefits of meeting the applicable performance standards at the facility, the Director must make a site specific determination of best technology available for 10 In the proposed Phase II rule, the calculation baseline is assumed to be a shoreline intake with oncethrough cooling system, with no impingement or entrainment reduction controls.

8 minimizing adverse environmental impact. Under this alternative, a facility would either compare its projected costs of compliance using a particular technology or technologies to the costs the Agency considered for a like facility in establishing the applicable performance standards, or compare its projected costs of compliance with the projected benefits at its site of meeting the applicable performance standards. If in either case costs are significantly greater than the projected costs or projected benefits, the technology selected by the Director must achieve an efficacy level that, in the judgement of the Director, comes as close as practicable to the applicable performance standards without resulting in costs that are significantly greater than such projected costs or benefits. Alternative ( 5) would require a Comprehensive Demonstration Study whose detail and cost would vary depending on characteristics of the facility and waterbody.

3. OVERVIEW OF PROPOSAL UNDER CONSIDERATION 3.1 Potential Requirements and Guidelines of the Proposal EPA is in the early stages of data analysis, option formulation and assessment for the Phase III regulation. Therefore, the options described here must be viewed as preliminary, subject to potential change pending the outcome of relevant analyses.

Nevertheless, given that the environmental concerns, and the technologies available to mitigate these concerns, are similar to those considered under the Phase II rule, EPA anticipates that the regulatory options for Phase III will be broadly consistent with the provisions codified under Phase II. Thus, the Phase III rule appears likely to be conditioned upon factors such as design intake flow ( DIF), percent of design intake flow used for cooling, capacity utilization rate ( for power producers), cooling water intake structure location, and economic impact. As discussed below, EPA anticipates adjusting the applicability of requirements like those proposed in Phase II to Phase III facilities based on various threshold criteria appropriate for Phase III facilities.

Performance requirements for Phase III facilities may include a requirement for such facilities to either: 1) reduce design intake flow to a level commensurate with a closed cycle, recirculating system, or 2) to reduce impingement rates and/ or entrainment rates to specified levels relative to a baseline. 10 Requirements to reduce impingement and/ or entrainment might be established based on location ( i. e., waterbody type), the relative proportion of water withdrawn by a specific facility, and utilization rate ( power producers only).

For an example of the specific impingement and/ or entrainment performance requirements under consideration, the Phase II regulation specifies: 9 Impingement Performance Standard: all facilities must reduce impingement mortality by 80 to 95% from a calculation baseline for fish and shellfish;

Entrainment Performance Standard: reduce entrainment of all life stages of fish and shellfish by 60 to 90% from the calculation baseline, if the facility has a capacity utilization rate of 15% or greater and either ( i) the facility uses cooling water withdrawn from a tidal river, estuary, ocean, or Great Lake, or ( ii) the facility uses cooling water withdrawn from a stream or river and the facility's design intake flow exceeds 5% of the mean annual flow of the stream or river.

As EPA moves forward with development of the Phase III regulation, numerous additional scoping, economic impact, and environmental impact analyses will be conducted. To the extent that continuing or new analyses provide a basis for altering the approach or requirements described above, the Agency will fully consider such information in its decision making.

3.2 Options Likely to be Proposed As discussed above, EPA is considering using performance requirements that are consistent with the performance requirements in the Phase II rule, but developing regulatory options based on criteria or thresholds that would be used to determine which Phase III facilities are subject to which specific performance requirements. As a result, EPA anticipates that some Phase III facilities would be subject to cooling water intake permit conditions based on best professional judgement ( BPJ), some would be subject to impingement controls only, and some would be subject to entrainment controls as well. In general, the more sensitive or biologically productive the waterbody, or the greater the potential for the facility to cause or contribute to an adverse impact, the more stringent the requirements proposed as reflecting the best technology available for minimizing adverse environmental impact. For example, if EPA were to use design intake flow as its primary threshold for different options, alternatives might include the following:

Phase III facilities with a design intake flow of less than 2 mgd ( note: all values used in the examples are for illustrative purposes only) are not subject to requirements under the Phase III national rule, but are only subject to NPDES permits requirements established based on a permit writer's BPJ;

Phase III facilities with a design intake flow greater than 2 mgd but less than 50 mgd are only subject to requirements to reduce impingement mortality to specified levels from a baseline; and,

Phase III facilities with a design intake flow greater than 50 mgd are subject to performance requirements similar to those proposed in the Phase II regulation.

EPA may use other criteria, including, but not limited to, percent of design intake flow used for cooling, proportion of source waterbody withdrawn, utilization rate, and cooling water 10 intake location, to establish its regulatory options for Phase III. Moreover, EPA may combine these criteria to ensure Phase III requirements provide for the use of best technology available to minimize adverse environmental impacts. For example, the Agency may combine intake flow with location to adequately address the potential impacts from Phase III facilities. Ultimately, EPA will select among the options based on its analyses of environmental impacts, costs impacts, and small entity impacts associated with each distinct regulatory option. 11 4. APPLICABLE SMALL ENTITY DEFINITIONS Tables 4 1 and 4 2 show the SBA small entity definitions for each of the 4 digit SIC codes represented among the parent entities of the in scope facilities surveyed by EPA to date.

Table 4 1. Small entity definitions for parent entities of Phase III manufacturer facilities surveyed and found in scope.

SIC Code SIC Code Description Sector SBA Small Entity Size Standard SBA Small Entity Size Standard Units 0133 Sugarcane and Sugar Beets Other 500,000 Revenue 1011 Iron Ores Other 500 Employees 1311 Crude Petroleum and Natural Gas Oil and Gas 500 Employees 1381 Drilling Oil and Gas Wells Oil and Gas 500 Employees 2046 Wet Corn Milling Other 750 Employees 2062 Cane Sugar Refining Other 750 Employees 2063 Beet Sugar Other 750 Employees 2092 Prepared Fresh or Frozen Fish and Seafoods Seafood Processing 500 Employees 2211 Broadwoven Fabric Mills, Cotton Other 1,000 Employees 2421 Sawmills and Planing Mills, General Other 500 Employees 2611 Pulp Mills Paper 750 Employees 2621 Paper Mills Paper 750 Employees 2631 Paperboard Mills Paper 750 Employees 2676 Sanitary Paper Products Paper 500 Employees 2679 Converted Paper and Paperboard Products, NEC Paper 500 Employees 2812 Alkalies and Chlorine Chemicals 1,000 Employees 2813 Industrial Gases Chemicals 1,000 Employees 2816 Inorganic Pigments Chemicals 1,000 Employees 2819 Industrial Inorganic Chemicals, NEC Chemicals 1,000 Employees 2821 Plastics Material and Synthetic Resins, and Nonvulcanizable Elastomers Chemicals 750 Employees 2824 Manmade Organic Fibers, Except Cellulosic Chemicals 1,000 Employees 2833 Medicinal Chemicals and Botanical Products Chemicals 750 Employees 2834 Pharmaceutical Preparations Chemicals 750 Employees 2869 Industrial Organic Chemicals, NEC Chemicals 1,000 Employees 2873 Nitrogenous Fertilizers Chemicals 1,000 Employees 2899 Chemicals and Chemical Preparations, NEC Chemicals 500 Employees 2911 Petroleum Refining Petroleum 1,500 Employees 12 3312 Steel Works, Blast Furnaces ( Including Coke Ovens), and Rolling Mills Steel 1,000 Employees 3313 Electrometallurgical Products, Except Steel Steel 750 Employees 3315 Steel Wiredrawing and Steel Nails and Spikes Steel 1,000 Employees 3316 Cold Rolled Steel Sheet, Strip, and Bars Steel 1,000 Employees 3317 Steel Pipe and Tubes Steel 1,000 Employees 3334 Primary Production of Aluminum Aluminum 1,000 Employees 3353 Aluminum Sheet, Plate, and Foil Aluminum 750 Employees 3421 Cutlery Other 500 Employees 3861 Photographic Equipment and Supplies Other 500 Employees Table 4 2. Small entity definitions for parent entities of Phase III electric generator facilities surveyed and found in scope.

SIC Code SIC Code Description SBA Small Entity Size Standard SBA Small Entity Size Standard Units 1311 Crude Petroleum and Natural Gas. 500 Employees 1542 General Contractors   Nonresidential Buildings, Other than Industrial Buildings and Warehouses 27,500,000 Revenue 2621 Paper Mills 750 Employees 4911 Electric Services 4,000,000 MWh 4924 Natural Gas Distribution 500 Employees 4925 Mixed, Manufactured, or Liquefied Petroleum Gas Production and/ or Distribution 5,000,000 Revenue 4931 Electric and Other Services Combined 5,000,000 Revenue 4932 Gas and Other Services Combined 5,000,000 Revenue 4953 Refuse Systems 10,000,000 Revenue 6211 Security Brokers, Dealers and Flotation Companies 5,000,000 Revenue 9111 Executive Offices 50,000 Population 13 5. SMALL ENTITIES THAT MAY BE SUBJECT TO THE PROPOSED REGULATION The proposed Phase III rule potentially would apply to all facilities to which Section 316( b) applies and which are not regulated under Phases I & II. Phase II included existing utility and nonutility electric power producers. Phase I included new facilities. Thus, a Phase III regulation could apply to a wide range of existing facilities. It will also include new facilities in the oil and gas extraction industry.

EPA anticipates that a majority of Phase III facilities will fall into the following major categories of economic activity: electricity producers with design intake flows less than 50 million gallons per day; industrial chemicals; pulp & paper; primary metals ( iron and steel, aluminum); and, petroleum refining.

EPA conducted a questionnaire survey of these major industrial sectors. Using standard methods of survey estimation, EPA is able to estimate the national population of facilities in these industrial sectors that may potentially be affected by a phase III rule, and the number of these which are owned by small entities ( Table H 1).

The Oil & Gas Extraction category was not represented in the 316( b) survey conducted in 2000. However, EPA must consider requirements for new and existing facilities ( platforms, mobile drilling units, and drill ships) in this category and similar " offshore" cooling water intakes for seafood processing vessels.

In October 2003, EPA mailed surveys to a sample of Oil & Gas Extraction facilities and to a sample of seafood processing vessels. The survey information collection was cleared by OMB. These are probability based, stratified samples of lists of facilities (" sample frames") that EPA believes to be substantially complete. Results from the survey have not all been received, checked, entered into databases, so summary results cannot be presented at this time.

At the present time, based on experience with effluent guidelines for the Oil & Gas Extraction category and based on recent research, EPA believes that a great majority of the owner entities in this category are large businesses.

At the present time, based on research and available reports as well as preliminary analysis of surveys, EPA believes that the majority of potentially in scope seafood processing vessels may be owned by small entities that are geographically concentrated in Alaska and Washington. However, a substantial number of the largest vessels are owned by three large businesses. 14 Table 5 1. Estimated Number of Phase III Facilities Owned by Small and Large Firms ( as defined by the Small Business Administration), and estimated design intake flow Total Design Flow ( mgd) Small Firm Large Firm Industry Group Design Flow Range Electric Generators ( n = 121) 2  10 MGD 192 5 33 10  20 MGD 449 2 27 20  50 MGD 1,807 10 44 50  250 MGD N/ A N/ A N/ A > 250 MGD N/ A N/ A N/ A Electric Generators All Design Flows 2,448 17 104 Manufacturers ( n = 630) 2  10 MGD 892 24 133 10  20 MGD 1,366 21 68 20  50 MGD 6,288 20 183 50  250 MGD 12,967 4 131 > 250 MGD 66,367 9 37 Manufacturers All Design Flows 87,880 78 552 Chemicals All Design Flows 11,608 13 170 Metals All Design Flows 9,301 16 82 Pulp and Paper All Design Flows 57,903 38 214 Petroleum Refining All Design Flows 3,135 2 34 Other * All Design Flows 5,807 9 52 All Industries ( n= 751) All Design Flows 90,328 95 656 * This is not an estimate of affected facilities in other industries, it merely represents surveyed facilities that were thought to be in one of the four industries selected for survey, but which identified their primary business as other than one of the four industries surveyed. 15 16 6. SUMMARY OF SMALL ENTITY OUTREACH EPA conducted numerous outreach activities during the development of the original industry survey ( 1998 1999). Although this outreach was conducted primarily to obtain feedback on the survey and questionnaires in connection with an information collection request, it also made widely known the Agency's plans to develop regulations implementing Section 316( b) and it resulted in numerous communications with potentially affected firms and industry associations.

EPA conducted outreach with a variety of industrial groups, including American Iron and Steel Institute, American Petroleum Institute, Chemical Manufacturers Association, Chemical Manufacturers Association, Edison Electric Institute, and Electric Power Research Institute, and environmental groups including: Hudson Riverkeepers, New York/ New Jersey Baykeeper, Widener University School of Law ( Delaware Baykeepers), and US Fish and Wildlife Service. Most of the organizations acknowledged EPA for incorporating many of their early suggestions into the draft detailed questionnaire.

Further outreach was conducted in 2003, in connection with the information collection request for a 2003 survey of oil & gas extraction facilities and seafood processing vessels. In conjunction with this ICR effort, EPA has coordinated extensively with the International Association of Drilling Contractors and the National Food Processors Association among others.

Table A1. Industry Organization Representatives Organization Point of Contact Contact Info.

Institute for Fisheries Resources Dr. Zeke Grader fish4ifr@ aol. com Pacific Coast Federation of Fishermen's Associations Glen H. Spain ( 541) 689 2000 National Food Processors Association Rick Jarman rjarmin@ nfpafood org National Fisheries Institute Bob Colette 703 524 8880 x232 American Fishermen's Research Foundation and Western Fishboat Owners Association Wayne Heikkila ( 707) 443 1098 At Sea Processors Association ( APA) Trevor McCabe ( 907) 276 8252 International Association of Drilling Contractors Alan Spackman ( 281) 578 7171 Western State Petroleum Association ( WSPA) Suzanne R. Noble 805 966 7113 Mineral Management Service Dr. Kay Marano Briggs 703 787 1646 Offshore Operators' Committee Kent Satterlee III 504 728 4143 17 As part of the outreach efforts, the Agency developed a web site to provide equal access to the latest status and information on Section 316( b) rulemaking. The web site contains the quarterly status reports, screener questionnaire ICR package, screener and detailed questionnaires, Phase I rule, proposed Phase II rule, the Phase II NODA, and public meeting summaries and transcripts. The Section 316( b) web site may be viewed at http:// www. epa. gov/ ost/ 316b.

The outreach activities described above did not specifically target small entities, but the associations involved have many small entities as members. EPA began outreach targeted at small entities in August 2002, held a first outreach meeting for small entities on October 1, 2002, and held a second ( pre panel) outreach meeting on January 22, 2004.

In August & September 2002, EPA identified 25 small entities among the respondents to the 2000 survey of electric generators and manufacturers, and attempted to contact all of them. EPA also tried to contact another 21 firms that might be small entities but whose status required research and inquiry, leading to identification of two more small entities. Upon direct inquiry and review, some firms thought to be small entities were found to be large entities and some facilities would not be subject to a Phase III rule, leaving 21 small entities. These small entities received sent brief descriptions of the Phase III rulemaking, the small business advocacy review process, and the roles and responsibilities of SERs ( Appendix A). Those expressing interest in either the outreach meeting or the rulemaking were sent background document identified in Appendix A, describing the Phase III rulemaking.

A summary of the outreach meeting held October 1, 2002 appears in Appendix B and SER comments made after that meeting appear in Appendix C.

EPA also contacted industry associations with a request that they identify potential small entity representatives. These included the American Public Power Association, National Rural Electric Cooperative Association, American Municipal Power  Ohio, Minnesota Municipal Utilities Association, Electric Power Supply Association, American Chemistry Council, Synthetic Organic Chemical Manufacturers Association, National Petrochemical and Refiners Association, American Petroleum Institute, American Forest & Paper Association, American Iron & Steel Institute, International Association of Drilling Contractors, Offshore Operators Committee, At Sea Processors Association, and the National Food Processors Association.

EPA held a pre panel outreach meeting for potential SERs on January 22, 2004, and provided the materials listed in Appendix A. These included a revised background document, examples of regulatory costs under a hypothetical set of regulatory requirements, and an analysis of costs and benefits developed by the Small Business Administration. A summary of that meeting appears in Appendix B and SER comments resulting from the meeting appear in Appendix C. 18 7. LIST OF SMALL ENTITY REPRESENTATIVES ( SERS)

Industry Business, Municipality, or Organization Contact Person Electric Generators Electric Generators Municipal City of Dover ( Dover Light & Power) 116 East Third St. Dover, OH 44622 David G. Borland ( Superintendant) 330 343 3442 dborland@ doverohio. com Municipal Richmond Power and Light P. O. Box 908 Richmond, IN 47375 Bob Crye ( Superintendant) 765 973 7215 bobc@ RP L. com Municipal Henderson Municipal Power & Light 419 N. Water St. Henderson, KY 42419 Wayne Thompson 270 826 2726 WThompson@ hmpl. net Municipal Village Of Winnetka 510 Green Bay Road Winnetka, IL 60093 Jeffrey M. Pietka 847 716 3601 jpietka@ winnetka. org Municipal Crawfordsville Electric Light & Power Co PO Box 428 Crawfordsville, IN 47933 0428 Steve Gillan ( Environment, Safety and Training Coordinator) 765 362 1900 steveg@ celp. com Municipal Iola Electric Department 1220 West 54 Hwy. Iola, KS 66749 Steven D. Robb 620 365 4950 powerplt@ iolaks. com ( continued on next page) 19 Industry Business, Municipality, or Organization Contact Person Small Manufacturers Small Manufacturers Chemicals and Allied Products NYCOA 333 Sundial Avenue Manchester, NH 03103 7230 http:// www. nycoa. net/ John Pollono 603 627 5150 ext 18 JPollono@ nycoa. net Paper and Allied Products Oconto Falls Tissue, Inc. 2079 A Lawrence Drive De Pere, WI 54115 Jim Kellam 920 983 8379 JimK@ GBonline. com Steel North American Stainless  Ghent 6870 Highway 42 East Ghent, KY 41045 Steve Shaver 502 347 6000 SShaver@ northamericanstainless. co m, CC to meichelberger@ northamericanstainle ss. com Steel Bayou Steel Corporation P. O. Box 5000 La Place, LA 70069 5000 Wendy Stehling 985 652 0322 WendyS@ bayousteel. com Paper and Allied Products Mohawk Paper Mills, Inc. PO Box 497 Cohoes, NY 12047 George Milner 518 233 6205 MilnerG@ mohawkpaper. com Petroleum and Coal Products Countrymark Cooperative, Inc. 225 S East St Indianapolis, IN Donald Horning 812 838 8133 Horning@ countrymark. com Paper and Allied Products Port Townsend Paper Corp. PO Box 3170 Port Townsend, WA 98368 Eveleen Muehlethaler 360 379 2112 EveleenM@ ptpc. com 20 Associations Supporting Small Entities ( these are not SERs)

Description Organization or Association Contact Person " APPA is the service organization for the nation's more than 2,000 local publicly owned electric utilities." APPA represents a number of publicly owned electric utilities that may be subject to a Phase 3 rule. American Public Power Association 2301 M Street, NW Washington, DC 20037 Teresa Pugh 202 467 2943 tpugh@ appanet. org " The National Petrochemical and Refiners Association ( NPRA) represents almost 500 companies, including virtually all U. S. refiners and petrochemical manufacturers." National Petrochemical & Refiners Association ( NPRA) 1899 L Street, N. W., Suite 1000 Washington, D. C. 20036 3896 Tom Wigglesworth 202 457 0480 tom_ wigglesworth@ npra dc. org " The American Forest & Paper Association ( AF& PA) is the national trade association of the forest, pulp, paper, paperboard and wood products industry." American Forest and Paper Association 1111 19th St NW Washington DC 20036 Meg McCarthy 202 463 2700 meg_ mccarthy@ afandpa. org Jerry Schwartz jerry_ schwartz@ AFandPA. org 21 8. SUMMARY OF COMMENTS FROM POTENTIAL SMALL ENTITY REPRESENTATIVES 8.1 Number and Types of Entities Affected Comments from Dover Light & Power ( Dover, Ohio) point to considering the impacts ( of regulating small municipal power plants) on local economies. Dover Light Plant contributes substantially to the local and regional economy. Dover Light & Power noted that more than 90% of public power systems serve communities of less than 50,000 population and more than 95% have fewer than 20 employees.

See also comments summarized in the next section.

8.2 Potential Reporting, Record Keeping, and Compliance Commentors in general expressed concern about the level of projected regulatory costs and the impact of those costs on small entities. They specifically mentioned " ICR" costs ( associated with permit application, environmental studies, verification monitoring, and reporting requirements), and noted that " ICR" costs ( as proposed for Phase II) can equal or exceed technology costs.

Richmond Power & Light ( Richmond, IN) noted that small municipal utilities have no environmental department, would need to use contractors, could experience a significant economic burden because of the cost of studies, might need to increase rates, and might need to increase staff. Richmond Power & Light noted that compliance costs of a small facility ( 2 mgd) estimated by EPA are significant for small communities and utilities.

Dover Light & Power commented that the cost estimated by EPA would have a substantial economic impact on a small system with a very limited customer base, and that EPA's projected costs for verification monitoring ( for the Phase II proposed rule) would be inordinately burdensome for small municipal utilities.

Port Townsend Paper ( Port Townsend, WA) commented that costs as estimated by EPA would impose a substantial financial burden on small businesses such as Port Townsend Paper, which faces significant economic challenges because of the recent US economic slump, shifting markets, and a weak global economy. Despite recent upturn in global and domestic markets, Port Townsend has not seen significant improvement in their businesses. They noted that estimated permitting, monitoring and reporting costs were considerably greater than the capital costs and operating costs of the technologies used to minimize environmental impact.

8.3 Related Federal Rules Richmond Power & Light remarked that reliability ( of electric power) could be affected 22 8.4 Regulatory Flexibility Alternatives Thresholds for Applicability Commentors recommend that EPA use thresholds, below which requirements would be reduced or would be determined case by case when adverse environmental impacts were probable.

Countrymark Cooperative Petroleum Refinery remarked that " The Phase III regulations should have a minimum flow threshold of no less than 5 million gallons per day."

Port Townsend Paper comments in summary: Limit the scope of Phase III applicability. Focus on facilities having a reasonable likelihood of causing adverse environmental impacts. Establish applicability thresholds, such as a design capacity threshold, and examine their cost and benefit. Consider excluding Phase III facilities from national requirements and instead allow for case bycase determinations using best professional judgement as to the best technology available. Provide for regulation only in cases where the permitting authority determines, based on available scientific data, that operation of a CWIS has resulted in an adverse environmental impact.

Approved Technologies Commentors suggested that EPA designate approved technologies. Proper installation and operation of these technologies would then either constitute compliance, or use of an approved technology would greatly reduce the requirements for information collection and reporting that were proposed for the Phase II rule.

Countrymark Cooperative Petroleum Refinery commented that ( a) structures with designs less likely to contribute to impingement or entrainment need not have any other requirements and ( b) EPA should make available detailed, water intake designs that minimize impingement or entrainment and are easy to clean. There is a strong incentive for the water users to use designs that minimize daily or periodic maintenance.

Port Townsend Paper recommended providing a suite of technologies ( approved technologies) designated as BTA for satisfying the performance standards. Facilities installing an approved technology would be considered in compliance and would not be subject to extensive and burdensome application, monitoring and reporting requirements Environmental Benefits vs. Costs; Need for New Requirements Dover OH Light & Power commented that EPA's projected costs would be inordinately burdensome for small municipal utilities and, for small intakes, these expenses cannot be justified by potential benefits to the environment. The value of fish saved would be much less than 23 expenses incurred; costs would exceed [ monetized] benefits [ in a report provided by the Small Business Administration] for intakes with less than 20 mgd design capacity. These economic impacts and low benefit cost ratios require careful consideration, esp. as new requirements that would affect a system having only a very minor impact on the fish population in the Tuscarawas River. Dover Light & Power studied fish impingement mortality in 1988 89, and found that about 85% of impinged fish were gizzard shad no larger than 1 oz., many of them impinged because of a cold weather event ( and these might have died in any event).

Port Townsend Paper recommended that EPA should focus on facilities having a reasonable likelihood of causing adverse environmental impact ( AEI). This could be done by establishing one or more applicability thresholds and exempting facilities that do not fall within those thresholds. The authority to seek additional studies or impose additional requirements should be appropriately limited. EPA should consider regulating only impingement, not entrainment, under appropriate circumstances  based on an EPRI report, entrainment may pose a low risk of AEI in many circumstances. EPA should investigate costs and benefits of alternative thresholds.

Countrymark Cooperative Petroleum Refinery  with their type intake structure (" The cooling water intake structure is mounted within a permanent barge structure and consists of submerged basin with passive water inlet holes"), " With this design, direct impingement does not generally occur." " Countrymark feels that our current water intake structure design minimizes impingement and entrainment. It is our opinion that no further upgrades are warranted."

Subcategorization Port Townsend Paper recommended identifying industrial subcategories that could be adversely impacted and reducing economic burden for these subcategories.

Design Capacity versus Actual Water Use Commentors question the merits of using design capacity, rather than actual water use, in applicability thresholds. [ An alternative reading of these comments might suggest that the regulatory definition of design capacity may need clarification or reconsideration to account better for the practical limits to water use capacity].

Port Townsend Paper suggested that actual water withdrawal rather than design capacity is more appropriate as an applicability threshold. Many facilities have lower intake and discharge flows as a permit condition or because they do not or cannot use the entire design capacity. An applicability threshold based on design capacity rather than actual water use may penalize facilities for conserving water. 24 Dover OH Light & Power noted that their intake structure is designed for 12,000 gpm, while the capacity of all three pumps ( 6,000 gpm per pump) is 18,000 gpm, and only two pumps are used at any given time.

Other Comments Dover OH Light & Power commented that EPA may not have fully considered costs for O& M and rebuilding and the higher level of staffing needed ( with associated wages & benefits). 25 APPENDICES Appendix A: List of Materials EPA Shared With Potential SERs Appendix B: Summary from EPA's Outreach Meeting with Potential SERs Appendix C: Written Comments Received from Potential SERs 26 Appendix A: List of Materials EPA Shared With Potential SERs Outreach meeting held October 1, 2002 13. Background Information for Potential Small Entity Representatives on EPA's Rulemaking Project ( 316b_ PhaseIII_ Background. pdf) 14. Information on intake technologies and their costs ( ten pdf files)

After the outreach meeting held October 1, 2002 15. Powerpoint slides used for outreach meeting ( briefing background. ppt) 16. Summary of meeting ( Mtg Summary_ 100102. wpd)

Pre panel outreach meeting held January 22, 2004 17. Background Information for Potential Small Entity Representatives on EPA's Rulemaking Project ( 316b_ Phase3_ Background_ 2004. pdf) 18. Cost Examples ( Example_ 1. pdf, Example_ 2. pdf) 19. Attachments for Cost Examples ( Table 2 Capital Cost. pdf, Table 3 4 cost factor. pdf, Table 5 6 OM. pdf, Table 7 ICR costs. pdf)

After the outreach meeting held January 22, 2004 20. Additional table for background document showing numbers of facilities ( and number owned by small entities) by intervals of design intake flow ( Table_ H 1_ SB_ flow. pdf) 21. Small Business Administration's analysis of costs and benefits of some regulatory alternatives ( PhaseIII SBA REPORT Exec Summary 1.9.04. doc and PhaseIII SBA REPORT 1.9.04. zip) 22. Meeting summary ( Meeting Notes 22jan04. pdf) 23. Suggestions on providing comments ( SER Comment guidance. pdf) 24. Information about the compliance alternatives proposed for Phase 2 facility cooling water intakes ( Ch_ A1. pdf) 27 Appendix B: Summary from EPA's Outreach Meeting with Potential SERs Pre Panel Outreach Meeting for Small Entities EPA Rulemaking for Phase III Cooling Water Intake Structures January 22, 2004 Meeting Participants:

Small Entity Representatives: David G. Borland, City of Dover ( Dover Light & Power) Bob Crye, Richmond Power and Light Donald Horning, Countrymark Cooperative, Inc. Steve Shaver, North American Stainless   Ghent Wendy Stehling, Bayou Steel Corporation George Milner, Mohawk Paper Mills, Inc. Eveleen Muehlethaler, Port Townsend Paper Corp.

Associations Supporting Small Entities: Meg McCarthy, American Forest and Paper Association Jerry Schwartz, American Forest and Paper Association Tom Wigglesworth, National Petrochemical & Refiners Association U. S. Environmental Protection Agency: Alex Cristofaro, OPEI, Small Business Advocacy Chair Joan Crawford, OPEI George Denning, EAD Patrick Easter, OPEI John Fox, EAD, Phase III Regulation Manager Mindy Gampel, OPEI Ken Munis, OPEI Tom Nakely, OPEI Pooja Parikh, Office of General Counsel Martha Segall, EAD, Acting Director, Cooling Water Intake Task Force Mary Smith, EAD, Division Director Eric Strassler, EAD Jennifer Vernon, OPEI Mark Wilson, OPEI U. S. Small Business Administration: Keith Holman, Office of Advocacy Joe Johnson, Office of Advocacy 28 U. S Laity. Office of Management and Budget: Jim Laity, Office of Information and Regulatory Affairs Other Participants: Elicia Blumberg, Tetra Tech Incorporated ( EPA contractor)

Welcome and Introductions/ Words from the SBREFA Panel Chair: ( Mary Smith, Division Director, EPA Engineering and Analysis Division) ( Alex Cristofaro, EPA Small Business Advocacy Chair)

Mary Smith opened the meeting and invited everyone introduce him/ herself.

Alex Cristofaro summarized the SBREFA process. Mr. Cristofaro explained that the SBREFA process was enacted in 1996, and its purpose is to provide an opportunity for small businesses to be part of the regulatory process. Input from small businesses allows EPA to become aware of and consider the circumstances of those entities. EPA's main goal is to develop alternative regulatory approaches that meet the needs of small businesses as much as possible. Mr. Cristofaro emphasized that it is EPA's hope to receive as much input as possible from the small entities before writing the rule. Small business representatives should provide written comments to EPA by February 5, 2004, so that the panel meeting later in the month will have ample time to review the comments. Following the official start of the SBREFA panel, small businesses will have another opportunity to provide comments. Also, he added that John Fox would be available at any time to field questions.

Keith Holman welcomed everyone to the meeting, and stated that a second, more complete, set of documents will be sent to small entity representatives ( SERs) in late February to early March. These documents will further explain 316( b) in detail, and present rule costs. Mr. Holman stated that the SBREFA process is about getting a better rule without creating unnecessary burden on small businesses.

Jim Laity added that the SBREFA process presents a unique opportunity where SERs can inform EPA of concerns early on in the rulemaking process. Mr. Laity continued that it would be particularly helpful to receive technical comments about how your business works, which EPA might not know. Mr. Laity suggested that anyone who knows how to do something better, and in a less costly way, should send such suggestions to EPA.

Overview of Cooling Water Intake Structure Rulemaking ( John Fox, EPA Phase III Rulemaking Manager)

The following notes are taken from talking points used by John Fox. They summarize the main points covered by Mr. Fox during the meeting: 29 What are impingement and entrainment? Impingement refers to fish being trapped and held against a screen or other structure in the intake, or being harmed by rough contact with the intake structure. Entrainment refers to larvae of fish and shellfish being pulled into the cooling system. Entrained organisms generally die from thermal shock and mechanical damage, though the extent of mortality is still controversial.

What facilities are subject to § 316( b)? Under the Phase 1 and proposed Phase 2 rules, facilities are potentially subject to national requirements under Section 316( b) of the CWA if they require a NPDES permit to discharge wastewater, have a cooling water intake that withdraws water from " a water of the US," and use at least 25% of the intake water exclusively for cooling purposes. We expect the same will apply to Phase 3 facilities.

What facilities will be considered in the Phase 3 rulemaking? Phase 1 addressed new facilities Phase 2 addressed electric generators with design capacities of at least 50 MGD Facilities that will be considered for regulation under Phase 3 are: ( a) all existing facilities, except electric generators covered by the Phase 2 regulation ( b) electric generators with design capacities under 50 MGD ( c) new facilities  coastal and offshore oil & gas ( platforms and MODUs)

What is EPA's schedule for regulation development? For compelling legal reasons ( i. e. a consent decree), EPA is required by to formally consider regulatory alternatives by May 14, 2004, to propose Phase 3 regulations by November 1, 2004 to take final action by June 1, 2006 What has been decided about the Phase 3 regulation? The scope and specific requirements of the Phase 3 regulatory proposal are only now starting to be considered. Decisions won't be made until May and June when EPA must prepare a proposal for inter agency review at OMB. The scope and nature of requirements is then subject to further modification during interagency review. After a regulation is proposed, public comments must be received and considered, and a final round of interagency review occurs before any final action is taken.

How will the small business advocacy process affect the regulation? The Federal panel will Provide information and questions to small entity representatives Take oral and written comments from small entity representatives 30 Present a report to the EPA Administrator with recommendations on how impacts upon small business may be minimized by the choice of regulatory alternatives The panel report will be presented before EPA considers regulatory alternatives What regulatory alternatives are under consideration?

The Phase 1 and Phase 2 regulations lay the groundwork for defining what technologies and alternative approaches ( such as restoration) may be effective in satisfying the requirements of Section 316( b). We do not expect that these basic facts and approaches will change.

The most significant issues to be decided about Phase 3 include what kinds of facilities and intake capacities need national requirements, and what specific requirements are needed.

Some specific suggestions under consideration include:

# Flow thresholds for national requirements to reduce impingement mortality and entrainment # Reduced permitting and monitoring requirements for intakes with smaller design capacities ( this may be combined with a requirement to use a pre approved technology, with or without verification monitoring, depending on the situation)

# A capacity utilization threshold for national requirements ( for example, in the Phase 2 proposal, electric generators would not be required to reduce entrainment if their capacity utilization is less than 15%)

# No entrainment controls required under some conditions ( for example, at freshwater intakes with capacities under 50 mgd)

# Identification of industrial subcategories or specialties that have high numbers of small businesses or would have significant economic impacts from national requirements How are regulatory alternatives evaluated and compared?

# The cost of an alternative and its economic impact on businesses is evaluated. This includes market analysis of price changes and effects on consumers.

# The economic impact on small businesses is specifically evaluated # Effects on energy supply and demand are evaluated 31 # Economic and fiscal impacts on governmental entities ( municipalities, States, Tribes) are evaluated # Environmental benefits of alternatives are evaluated and are also compared to the costs of the alternatives What technologies are used to impingement and entrainment? There is a wide variety of technologies. These were described in the paper sent two weeks ago, and are described in more detail in the documents found on EPA's 316( b) web site.

Technologies commonly used to control impingement are:

surface shoreline intakes:  traveling screen with fish handling & return system  barriers and fish diversion systems submerged intakes:  velocity cap  passive ( wedgewire) screen Question and Answer Session/ Comments from Small Entity Representatives Dave Borland asked that John Fox repeat the dates mentioned earlier.

John Fox reiterated the dates, and added that between the proposal and final action, there would be both opportunities to comment and inter agency review.

Jerry Schwartz wished to know if the May date was a required by the consent decree.

John Fox answered that yes, it was.

Dave Borland asked how SERs should submit comments.

John Fox answered that EPA would provide both email and surface mail addresses.

Dave Borland asked if the meeting hosts could clarify what types of comments they sought.

Jim Laity answered that Phase 3 will be similar to Phase 2. All power plants in Phase 3 have lower intake flows than those in Phase II, by definition. The manufacturing facilities in Phase 3, however, may have flows comparable to those in Phase 2. Mr. Laity suggested that it would be helpful for SERs to become familiar with the Phase 2 rule, which is about to go final. Mr. Laity then reviewed the regulatory alternatives under consideration, which were mentioned by Mr. Fox earlier, including flow thresholds, reduced permitting and monitoring requirements for low flow facilities possibly in combination with pre approved technologies, capacity utilization threshold, no entrainment controls under some conditions, and identification of industrial subcategories that 32 would have significant economic impacts from national requirement. He stated that it was unlikely that the rule would regulate entities withdrawing less than 2 million gallons per day ( MGD). He added that in Phase II, EPA and OMB evaluated several means to streamline the data collection efforts, and it would be helpful to get input on that issue from SERs. In addition, any comments or suggestions SERs have on preapproved technologies that have promise for Phase 3 facilities would be appreciated. Mr. Laity requested that if an SER has candidate technologies or site conditions for preapproved technologies, to please suggest them to EPA.

John Fox added that if a SER has experience with impingement and entrainment ( I& E) studies at his/ her location, to please tell EPA about that experience, the results, the costs involved, and so on. An addition concern of EPA is identifying industrial categories that have large numbers of small businesses. If SERs have information on those sectors, please let EPA know.

Mary Smith stated that Phase III represents a new set of industries for EPA to become familiar with. As such EPA needs to be informed of any differences relative to the Phase II facilities, that the Agency should take into account.

Jim Laity requested that SERs also inform EPA of any experiences with installing I& E technologies. Questions to answer would include: Are you satisfied with the technologies? Were you required by your State permitting authority to install them?

Martha Segall added that it would be helpful to EPA to hear about technologies that SERs chose not to install, and why.

Jerry Schwartz stated that in the discussion about alternatives, some sound generic and some address possible subgroups where different treatment may be appropriate. It seems that all of the alternatives could apply to all facilities, small or large. He asked what the basic threshold would be for ideas that are specific to small businesses?

Jim Laity answered that everybody involved in this process represents small businesses, and EPA and OMB want to know about the concerns SERs have about their business. Those concerns may or may not be applicable to larger businesses. The emphasis here is finding a way to make a rule that will not be burdensome to small businesses, but if the information is helpful to larger businesses as well, that's fine.

Eveleen Muehlethaler asked whether the comments SERs are submitting by February 5, 2004, should go to John Fox?

John Fox confirmed this and added that he would resend his contact information.

Jim Laity explained the SBREFA schedule a bit further, adding that EPA has a statutory deadline of 60 days by which EPA must complete the outreach work to small businesses. The small 33 business panel will formally convene on February 27, 2004; this marks the start of the clock for the 60 day time limit. This meeting is a precursor to the formal start of the panel, and any information provided prior to February 27 will give the panel a better sense and allow panel members to " hit the ground running."

John Fox added that there would be other opportunities to comment, including commenting on the rule itself. As a reminder, EPA would like the comments by Thursday February 5, but by Friday February 6, would be fine. EPA expects to send out more materials to SERs on Friday February 27, 2004, or the following Monday. Also, EPA would set a date to get together again apart from the formal panel process.

Mary Smith concluded that SERs should contact the panel, in particular John Fox, with any additional questions. 34 Appendix C: Written Comments Received from Potential SERs Comments resulting from the January 22, 2004 outreach meeting:

C. 1 Countrymark Cooperative Refinery ( Mt. Vernon, Indiana)

C. 2 Dover Light and Power ( Dover, Ohio)

C. 3 Port Townsend Paper ( Port Townsend, Washington)

C. 4 Richmond Power and Light ( Richmond, Indiana)

C. 5 City of Iola Power Plant ( Iola, Kansas) ( Note: This comment resulted from the October 1, 2002 outreach meeting conducted the first time this proposed rule was preparing for a Panel.) 35 C. 1 COUNTRYMARK COOPERATIVE, LLP 1200 Refinery Road Mt. Vernon, Indiana 47620 February 6, 2004 Re: Pre Rulemaking Comments Phase III Cooling Water Intake Structures Dear Mr. Fox,

Countrymark appreciates the opportunity to be a part of the regulatory process and comment prior to proposal.

As you know, Countrymark Cooperative, LLP. is a regional, farmer owned cooperative which owns and operates a 24,000 barrels per day petroleum refinery located in Mt. Vernon, Indiana. Countrymark Co op employs approximately 300 people. Countrymark is a small refinery as defined by the Small Business Administration.

Our refinery has the ability to withdraw approximately 2 million gallons per day of surface water from the Ohio River. This water is treated and used to supply both process and cooling water for our refinery. The cooling water intake structure is mounted within a permanent barge structure and consists of submerged basin with passive water inlet holes. The water is then screened prior to entering the pump well area. The pump basin area is protected with screens that are inspected and cleaned daily. Typical debris includes vegetation ( sticks, leaves, etc.) and river trash ( bottles, plastic, foam, etc.). Only rarely would fish or other water life enter this area. In any case, it does not appear to become impinged upon the screens.

With this design, direct impingement does not generally occur. The next step is sedimentation and chemical treatment where silts and other suspended material are removed. Clean water then moves from the reservoir into the water supply system. After the water is used, it runs through an NPDES wastewater treatment system and is discharged downstream at essentially ambient temperatures.

Countrymark feels that our current water intake structure design minimizes impingement and entrainment. It is our opinion that no further upgrades are warranted. With that said, we assume that EPA would agree. If not, Countrymark would question the severity and necessity of further mandated controls.

Given the previous statements, Countrymark offers the following comments: 36 1. The Phase III regulations should have a minimum flow threshold of no less than 5 million gallons per day.

2. EPA should not consider just cooling water intake structures. Consider all sources of water intake structures and don't target specific industries or activities. Drinking / recreational / agricultural water withdrawal intake structures also cause impingement / entrainment. It is either a universal problem or not. It does not seem fair to regulate specific users and not all entities with water intake structures.

3. A registration process with each regulated entity would include some requirement for description of the water withdrawal intake structure. Structure with designs less likely to contribute to impingement or entrainment need not have any other requirements.

4. EPA should provide some level of significance in terms of harm caused by excessive impingement or entrainment. This could be in terms of number of the fish entrained per day or other easily gauged metric. Water users could then estimate the potential harm caused by a poorly engineered design.

5. EPA should make available detailed water intake designs that minimize impingement or entrainment and are easy to clean. There is a strong incentive for the water users to use designs that minimize daily or periodic maintenance. Being friendly to the environment is an added benefit.

Countrymark appreciates the opportunity to comment on this proposed. Please contact me ( horning@ countrymark. com or 812 838 8133) if you have any questions or comments.

Sincerely,

Donald M. Horning, REHS Regulatory Compliance Manager 37 C. 2 City of Dover, Ohio 44622 Dover Light & Power 303 East Broadway Dover, OH 44622 February 6, 2004 Comments Regarding 316 ( B) Phase III Regulations and Small Municipal Utility Concerns in anticipation of the EPA SBREFA Panel The City of Dover is a community of 13,000 located in Tuscarawas County in East Central Ohio. Dover is one of more than 2000 municipally owned public power electric utilities. Dover Light Plant currently has 21 total employees. Dover Light & Power is one of many public power systems that provide free electric service to all city owned facilities including street and traffic lights. This service contributes approximately $ 750,000.00 annually to the City of Dover. Some public power systems contribute directly to their cities' general fund budgets, payment in lieu of taxes, in amounts near the City of Dover's contributed electric service. The average household income in Dover is $ 36,665. According to the latest census figures about 9.2% of the individuals in Dover live below the poverty line. Dover serves 6541 customers, 5579 residential, 856 commercial and 106 industrial. We are located in American Electric Power's Ohio Power service area which is our local competition. We have maintained a competitive rate structure with the local investor owned utility. We feel our rates along with our local presence have helped maintain the local economy. An economic impact study done on our electric system indicates Dover Light Plant contributes between $ 4,500,000.00 and $ 5,500,000.00 to the local economy according to a recent study by Ohio University. The study also indicated the personal income effect ranges at between $ 1,000,000.00 and $ 1,500,000.00 for the current full time employees. The study also indicated 20 to 60 additional area and regional jobs created by the operation of the plant.

More than 90% of these of these public power systems serve communities of less than 50,000 population and more than 95% have fewer than 20 employees. Dover passed an ordinance in 1898 to begin their own Electric Utility Dover and is one of about 500 public power systems that own generation and operate units of 50 Megawatts or less. The generating plant was built in the early 1900' s and has been in continuous operation since that time at the current location of 303 East Broadway, Dover, Ohio adjacent to the Tuscarawas River.

Dover currently operates a coal/ steam generating unit with a nameplate of 18.5 MW, a natural gas combustion turbine generator with a nameplate of 15.5 MW and an internal combustion generating unit with a nameplate of 2.5 MW.

The 18.5 MW unit is the once through cooled unit that uses Tuscarawas River water for the condenser. The cooling water intake structure was originally constructed in 1933 and was 38 designed for a maximum intake of 12,000 GPM. Currently located within the cooling water intake structure are three 6000 gallons per minute ( GPM) pumps. The intake structure restricts our intake to a maximum of two pumps in operation at any time. Sometimes we operate with one pump and supplement the cooling water with well water from wells on power plant property. The maximum flow rate of 12,000 GPM capability of the intake results in 17.28 million gallons per day ( MGD) maximum flow. The base flow for the river is 1392 cubic feet per second or 900 MGD. The rate is high due to the large drainage area and large amount of water impounded by four flood control dams in the drainage area. This means that Dover Light Plant uses 1.92% of the river's base flow. The cooling water intake is positioned along the riverbank with sheet piling driven in front of the intake to prevent any large debris from entering the intake screen area. This piling extends out from the shore upstream of the intakes and forms a channel about 80 feet long. Water must run down stream and then back up through the channel before entering the intake area. This piling in front of the intake acts as a diversion structure that uses the river current to carry organisms downstream to avoid entrapment. Water is drawn through two 5' 6" high x 4' 8" wide openings in the intake structure. These two area are covered with bar screens made of 3/ 8" x 2 ½ " bars spaced 2 ½ " on center. After the bar screen openings the water then passes through two traveling water screens with 3/ 8" mesh. This results in an average water velocity of approximately 1.5 feet per second.

In 1989 as part of Dover's NPDES Permitting process, we performed a fish kill study. The study was done between October 1988 and April 1989 in two phases. Phase one was done from October 1, 1988 thru January 5, 1989 and the second was January 12, 1989 thru March 30, 1989. The study was done to collect all fish impinged on the traveling screen over a 24 hour period every 4 days for the two three month periods. The great preponderance of fish impinged during the study ( 85%) were Gizzard Shad of 1 ounce or smaller. Total impinged Gizzard Shad were 156 fish. Of the 156 count, 60 were trapped on the screens on only two days when the river froze over, January 1, 1989 and January 5, 1989. I believe this is a very small impact on the fish population of the Tuscarawas River. Studies have indicated that Gizzard Shad do not have the ability to withstand the cold temperatures of near freezing water. These temperatures cause the fish to become lethargic and in many cases die as a natural cause. Another problem that we experience annually is vegetation being impinged in our CWIS. This occurs primarily during late summer and fall. As lawn clipping and leaves migrate into the Tuscarawas River we must maintain a continuous watch to keep the intake clear.

If we were to install a fish handling system on our rotating screens they would be required to run continuously. Since these screens were installed in 1933 I believe the mechanical wear and tear would increase dramatically. This would also require more frequent rebuilds of the traveling screens. The run time would be about 5 times more than current operation modes increasing plant maintenance costs. In addition we would have to increase staffing levels to allow current personnel to perform the duties now required by plant operations. It doesn't appear the estimates would include these type additional costs. Each additional employee required to operate the plant would add about $ 60,000.00 per year in wages and benefits. It doesn't appear these additional 39 costs were factored into the calculations. Even without these additional cost numbers it would appear that the percentage increase is several times higher than the estimated 0.1% to 0.2% in the Cost Impact Analysis of the 316 ( B) Phase II.

Using the information and formulas provided in the " Background Information for Potential Small Entity Representatives", the cost of compliance to Dover Light Plant would be $ 112,612.17 in Capital Cost, $ 15,346.15 Annual O& M and $ 58,198.00 for Information Collection Request. To a small system with a very limited customer base this would have a substantial economic impact on Dover. The $ 112,612.17 represents about 7500 man hours. While the Annual O& M costs listed in the EPA materials may only be $ 58,198.00 that represents an additional 3800 man hours. These figures also do not appear to include additional personnel that may be required to operate the new system.

In addition to the capital, O& M, and ICR costs, we anticipate that EPA will require two years of verification monitoring for Phase III facilities, just as it has proposed for Phase II facilities. See Proposed 40 C. F. R. § 125.95 ( b)( 7). The costs of verification monitoring will be inordinately burdensome on small municipal utilities. EPA estimated the annual costs ( in 2001 dollars) of Phase II verification monitoring as follows: Freshwater Marine Impingement $ 16,985 $ 21,623 Entrainment $ 37,369 $ 46,044 TOTAL $ 54,354 $ 67,667 Source: EPA's Information Collection Request for the Phase II Existing Facility Rule ( DCN: 4 0001), Table 8.

There is no basis for assuming that verification monitoring for Phase III will be any less extensive than what is required for Phase II, and therefore the costs for Phase III should be comparable to what EPA has estimated for Phase II. In addition to these costs, we will need to commit resources to planning for the monitoring and providing oversight to the contractor who will perform the monitoring. Using cost figures outlined in the paragraph above, the total freshwater compliance monitoring cost of $ 54,354.00 would represents almost 3600 man hours.

For small intakes, these types of expenses cannot be justified by the potential benefits to the environment. The value of fish saved by the improved intake technologies undoubtedly will be much less than the expenses incurred by the utility.

The SBREFA Panel Support for Cooling Water Phase III Regulations under Section 3126 ( B) of the Clean Water Act, Final Report has a Cost Benefit Comparison of various regulatory options. All the options listed indicate a negative cost benefit ratio for all CWIS ( cooling water intake structure) with a DIF ( design intake flow) for 20 MGD or less. These negative cost benefit ratios range from $ 0.37 benefit for every dollar spent for compliance cost for 2 to10 MGD intakes 40 to about $ 0.72 benefit for every dollar spent for 10 to 20 MGD intake structures. I think with the added economic impact and negative cost benefit ratios require careful consideration prior to added regulation on a system that currently has very minor impact on the fish population in the Tuscarawas River.

David G. Borland, Superintendent Dover Light & Power Generating Plant 41 C. 3 February 6, 2004 Port Townsend Paper Corporation Preliminary Comments on EPA Approach to Cooling Water Intake Structure Phase III Rulemaking Dear Mr. Fox:

Port Townsend Paper is pleased to submit these comments on EPA's proposed approach to Phase III of the Cooling Water Intake Structure ( CWIS) rulemaking under Section 316( b) of the Clean Water Act. I have consulted with Meg McCarthy of the American Forest & Paper Association in the preparation of these comments, as she attended the outreach meeting EPA held last month. While I am writing these comments from the perspective of a small business, the alternatives proposed within these comments could be applied more generally to all Phase III facilities since, on the whole, these facilities' cooling water intake structures have not been identified as causing adverse environmental impacts.

As a small business, Port Townsend Paper is concerned about the potential costs and burdens that may be imposed by the Phase III rulemaking. Port Townsend Paper, like many small paper manufacturers, currently is facing significant economic challenges. The recent economic slump and shifting markets resulted in the closure of our two bag plants and the loss of over 200 jobs. In addition, the weak global economy has limited sales overseas. While there has been an upturn in the global and domestic markets recently, we still have not seen a significant improvement in our businesses. Capital expenditure has been restricted and further downsizing of our remaining personnel has occurred. Our limited resources must be spent wisely to insure our continued existence. Any additional costs will only exacerbate that economic challenge. For example, the initial capital cost of retrofitting a facility with an intake technology plus the compliance costs of annual monitoring and reporting, as estimated by the EPA, would pose a substantial financial burden on small businesses such as Port Townsend Paper.

Additionally, according to the Small Business Administration's analysis of the benefits and costs of some of the regulatory alternatives for the Phase III rulemaking, the permitting, monitoring and reporting costs were considerably greater than the capital costs and operating costs of the technologies used to minimize environmental impact. SBA also indicates that the cost benefit ratio for the rulemaking would improve if regulatory alternatives were adopted that deregulate smaller facilities, eliminating cumbersome regulations on small entities that provide few environmental benefits per dollar invested.

Our comments are premised on the notion that despite decades of operation, the cooling water intake structures operated by Port Townsend Paper and other Phase III facilities are not thought to present an adverse environmental impact to the aquatic resources located near those intakes. 42 Port Townsend Paper would support the following regulatory approaches for the Phase III rulemaking that take this into account.

1. EPA should consider not applying comprehensive national regulations to all Phase III facilities. There are several alternatives that EPA could utilize to determine which facilities would be regulated. Options include:

EPA should focus the Phase III rulemaking only on facilities with a reasonable likelihood of causing adverse environmental impact ( AEI) through cooling water withdrawals. As an initial matter, EPA should establish one or more applicability thresholds and exempt from the scope of the rulemaking, facilities that do not fall within those thresholds. The authority to seek additional studies or impose additional requirements should be appropriately limited. Stakeholders have suggested various de minimus applicability thresholds ranging from 10 250 mgd. For example, SBA suggests that facilities withdrawing less than 20 million gallons per day ( mgd) should be outside the scope of the rulemaking, absent some unusual site specific factor that would cause a permit writer to seek additional study or impose additional requirements. Further investigation into the costs and benefits of each of the various threshold levels should be conducted.

Additionally, if EPA uses the amount of water withdrawal as an applicability criterion, Port Townsend Paper suggests that EPA base that criterion on actual intake flow, as opposed to the design intake flow. Many manufacturers, including small businesses, are already functioning with lower intake and discharge volumes as required by their NPDES permits or have a demonstrated track record of lower water withdrawal. By basing the flow threshold on design intake without considering that the actual intake volume may be significantly lower, the EPA is in effect penalizing facilities for conserving water. Port Townsend suggests that the EPA utilize the more reasonable and consistent alternative of basing the flow threshold on past actual intake volume, not on design intake volume.

Alternatively, EPA should exclude all Phase III facilities from regulation except in those cases where the permit writer determines that based on available scientific data a CWIS has resulted in an adverse environmental impact. For those facilities the permit writer should use best professional judgment to include in the facility's NPDES permit provisions for the application of best technology available or equivalent ( see below) to minimize that impact.

2. Port Townsend Paper would support alternative regulatory approaches for those facilities that fall within the scope of the Phase III rulemaking in order to lessen the effect of the rule on small businesses.

Best technology available for minimizing adverse environmental impact could be defined by EPA as a designated suite of technologies for facilities that fall within the scope of the rulemaking in order to reduce the economic burden posed by the considerable permitting, monitoring and reporting costs. Plants that agree to install an approved technology would be considered to be in compliance with Section 316( b) and not be subject to extensive monitoring costs and burdensome reporting requirements.

EPA should consider regulating only impingement ( not entrainment) at plants in appropriate circumstances. EPRI has produced a report that shows that in many instances a 43 significant water withdrawal and healthy fish populations can co exist, so the risks of dropping entrainment controls for plants in this category are likely to be small while cost savings would be significant.

EPA should consider identifying industrial subcategories that could be adversely affected by the Phase III rulemaking and reducing the rulemaking's economic burden for these subcategories.

Thank you for the opportunity to participate in the SBREFA process and to comment on the development of regulations to establish requirements for Cooling Water Intake Structures at Section 316( b) Phase III Facilities. Please feel free to contact me at ( 360) 379 2112 if you have any questions about these comments.

Sincerely,

Eveleen Muehlethaler Vice President, Asst. Mill Manager Port Townsend Paper Corporation 44 C. 4 February 5, 2004 Richmond Power & Light 2000 U. S. 27 South Richmond, Indiana 47374 Comments on the 316 ( b) Phase III Rule Development Dear EPA,

Thank you for the opportunity to comment on the proposed rule.

Richmond Power & Light is located in Wayne County Indiana. Population is approximately 39,000. The Utility employees one hundred and forty people. The Municipal has been generating electricity for over one hundred years. Richmond has a strong, consistent industrial base consisting of mostly small to medium sized industrial plants. The utility owns and operates 2 pulverized coal units. Unit one, a 33 megawatt unit and unit 2, a 60 megawatt unit. Each unit has its own dedicated cooling tower. River water is drawn from the east fork of the Whitewater River. Daily makeup flow is approximately one million gallons per day. We have no NPDES permit.

Small entities like Richmond are very concerned with any new proposed rule.

Some concerns are:

Small entities have no environmental department.

All work would be performed by outside contractors.

Reliability could be affected.

Economic burden could be significant.

Studies alone would be expensive.

Ratepayers could possibility see increases. 45 Additional staff may need to be added.

Cost summaries contained in the " Background Information For Small Entity Representatives" indicate compliance cost of a 2MGD in example one are $ 46,943 for capital costs, $ 5249 for O& M and $ 58198 for ICR. These alone are significant for small communities and utilities.

Thank you for this opportunity to comment on this rule making. If you have any questions or need further information, please call. 46 C. 5 Note: This comment resulted from the October 1, 2002 outreach meeting conducted the first time this proposed rule was preparing for a Panel.

City of Iola Power Plant ( Iola, Kansas)

This comment was sent via email.

Steve Robb < powerplt@ iolaks. com> 10/ 23/ 02 02: 04 PM To: Deborah Nagle/ DC/ USEPA/ US@ EPA Subject: EPA316b The City of Iola Power Plant was started in 1900. The power plant has used river water from the Neosho river for cooling systems since the very start as we do today. The river water ( surface water) is used in a once thru pass for cooling steam condensers, then returned to the river. From 1900 to 1962 the power plant operated 24 hours per day 7 days per week 365 days per year. From 1962 to present the power plant only operates 3 to 4 months per year during peak seasons. In 1995 the power plant installed a new traveling screen with 3/ 8" square woven mesh wire screens. We use a bar rack in front of the intake structure and a solid barrier at water level to keep floating derbies out of our traveling screens. We have had no problem with fish or other river life being trapped in our intake screens. To reduce the size of our screens would make it impossible for us to operate our system. Tree leaves, sticks and mud during high water plug our screens reasonably quick. The steam equipment we are using are 3 megawatt and 5 megawatt condensing steam turbines. Total daily flow can go from 6 mgd to 24 mgd depending on day to day operations.

Thanks Steve Robb Power Plant Superintendent. [ Iola Electric Department, Iola, KS]