Finally, for new units at existing facilities, the Director may establish alternative requirements if the data specific to the facility indicate that compliance with the requirements of paragraphs (e)(1) or (2) of § 125.94 for each new unit would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirements at issue, or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets. This provision is identical to that provided in the Phase I new facility rule.

B.	Proposed Amendments Related to Phase I Rule
Commenters suggested that restoration be allowed in a range of situations, including where a nuisance species is a problem that will get worse with the use of cooling water intake structure technology, where affected species are not species of concern in man-made lakes, and to reduce the cost of meeting 316(b) requirements (i.e., offset losses).
Response: The Second Circuit found that EPA exceeded its authority by allowing facilities subject to CWA section 316(b) to comply with section 316(b) through restoration measures and, thus, EPA has deleted these provisions from the regulations at §§ 125.84 and 125.86 to make the rule consistent with the court decisions.
C.	Environmental Impact Associated with Cooling Water Intake Structures
Many commenters expressed concern that limited scientific evidence exists that measureable aquatic population or community effects occur as a result of cooling water withdrawals and that impingement mortality and entrainment mortality requirements should not apply unless adverse environmental impacts are demonstrated. They also noted that not all environmental impacts are adverse. For example, removal of invasive species or quickly reproducing species might not be harmful.
Response: EPA disagrees. The evidence shows that the total number of aquatic organisms lost annually is in the hundreds of billions, or is 1.9 billion on an age-one equivalent basis. Additional data provided in comments shows aquatic organisms are lost through impingement and entrainment by all types of cooling water intake structures. The data demonstrates that the effects of cooling water intake structures on the aquatic environment are significant and widespread. In addition, there is documented evidence of population level effects of cooling water intakes for certain species in certain instances. See, for example, 69 FR 41587, July 9, 2004 for a discussion from the 2004 Phase II rule. Also, Bayshore, Indian River and Indian Point are discussed in the BA for the final rule.
D.	EPA's Approach to BTA
1.	Relationship of Costs and Benefits
Many commenters expressed concern that the proposed rule's costs significantly outweigh the benefits and that studies, technology modifications, monitoring, and reporting should not be required if costs exceed benefits.
Response: While the rule costs exceed the monetized benefits as presented, EPA has concluded that the costs do not outweigh total benefits when both monetized and nonmonetized benefits are considered. EPA notes that the monetized benefits are only a subset of all benefits. In the absence of complete estimates of nonuse benefits, EPA estimated partial nonuse benefits for the final rule using the benefits transfer approach from proposal. This approach is still a partial estimate, because the nonuse benefits transfer was based on a species that represents less than one percent of adverse environmental impacts. With respect to entrainment, the rule authorizes the Director to consider costs versus benefits on a site-specific basis. With respect to impingement mortality, the rule provides seven compliance alternatives based on a set of widely used, demonstrated, proven technologies, many of which have been in use for decades and whose efficacy is well supported in EPA's record.
2.	Site-Specific approach
Many commenters agreed with EPA's site-specific approach for entrainment mortality requirements but argued that the same approach should also be applied to impingement mortality requirements. State agencies and environment organizations are concerned that the site-specific entrainment determinations will create additional administrative burdens on already overextended permitting authorities which could exacerbate permit backlogs.
Response: EPA does not agree that impingement mortality is best addressed by the same approach adopted for entrainment. This is because EPA has been able to identify low-cost technologies that are available, feasible and demonstrated for impingement mortality nationally. EPA has not been able to identify an available, feasible and demonstrated technology nationally for entrainment, and therefore has adopted as its national BTA entrainment standard a structured process for determining on a site-specific basis what entrainment controls are the best technology available at a particular facility. EPA agrees that site-specific entrainment has potential to create additional burdens for states, but EPA has tried to limit this burden by simplifying its information collection requirements from those at proposal. EPA has streamlined the information collection requirements so that information necessary for the Director to make a BTA determination is submitted by the permittee in the permit application early in the process, thus minimizing the number of transactions between permittee and the Director.
E.	BTA Performance Standards
1.	Impingement Standards
EPA received a substantial number of comments on how the final rule should address impingement mortality. EPA proposed an impingement mortality standard based on the performance of modified traveling screens with fish handling and return that required achievement of a numeric IM performance standard. As an alternative EPA proposed that a facility could demonstrate that either the design intake velocity or the actual intake velocity at its operation was less than 0.5 fps. Most of the commenters, including members of the U.S. Congress, state and local elected officials, and industry stakeholders, requested additional flexibility in complying with the impingement mortality standards. While the proposal would not specifically require the use of modified traveling screens with a fish handling and return system to meet the impingement mortality standards, some commenters interpreted the proposed rule as requiring this. EPA proposed impingement mortality standards that were expressed as a monthly average and a 12-month average. EPA recognizes, however, that some regulated entities might find a technology-based compliance option, rather than a performance-based approach, more attractive. Such an approach, particularly the specification of pre-approved technologies, could offer higher regulatory certainty, easier demonstration of compliance, and might offer a less expensive alternative because of reduced monitoring requirements associated with pre-approved technologies. Some commenters viewed the proposed impingement mortality standard as overly stringent and requested that EPA establish alternative impingement mortality standards, including site-specific impingement mortality requirements similar to those proposed for entrainment. Other commenters provided data pertaining to the performance of technologies, including modified traveling screens used as the basis for the impingement mortality performance standard. Several industry stakeholders stated that, despite EPA's best intentions, the proposed rule applied a one-size-fits-all approach for impingement mortality. While all the suggested changes to the proposal seek to provide additional flexibility through a variety of approaches, most of the comments had several elements in common:
       Defining modified traveling screens as a pre-approved technology or otherwise streamlining the NPDES process for facilities using the candidate technology on which BTA is based. Thus, EPA would designate certain technologies or certain conditions as complying with the impingement requirement.
       Providing a mechanism to identify other technologies that perform comparably to modified traveling screens.
       Modifying the proposal so that facilities that have already reduced the rate of impingement could obtain credit toward the impingement mortality standard.
       Developing a more tailored approach to protecting shellfish.
       Creating alternatives for facilities with very low (de minimis) impingement levels or mortality rates.
       Providing additional clarity on species of concern as it pertains to demonstrating compliance with the numeric impingement mortality performance standard.
       Reevaluating the impingement mortality numerical performance standards.
In addition, as noted above, EPA also received a number of comments suggesting that it adopt a site-specific approach to reducing impingement mortality similar to the proposed approach for addressing entrainment, rather than uniform national requirements for impingement mortality and a site-specific approach for entrainment only.
Many commenters expressed concern that the entrapment requirements were not well defined and would require costly technologies that are not considered in EPA's cost estimates and could be difficult to comply with, particularly where cooling systems employ impoundments or basins downstream of the initial intake structure.
Response: See the earlier discussion concerning how EPA determined the numeric impingement mortality performance standard. Additionally, see earlier discussion for an explanation of how EPA revised the impingement mortality standard to provide seven alternatives for compliance.
EPA agrees that specific entrapment requirements are not necessary and requirements for facilities to deploy technologies to avoid entrapment have been deleted from the final rule. However, a facility that entraps fish must count the entrapped organisms as impingement mortality.
2.	Entrainment Standards
A substantial number of commenters supported EPA's site-specific approach for entrainment standards. Suggested revisions to the approach included the following:
       EPA should recognize the value of waterbody-based requirements, including withdrawals on lakes/reservoirs and less than 5 percent of rivers as not requiring entrainment mortality.
       Units with a low capacity utilization should be exempt from entrainment mortality.
       Facilities with AIF of less than 125 mgd should be presumed as entrainment mortality compliant.
       EPA should consider entrainment survival.
Response: With respect to waterbody-based requirements and capacity utilization thresholds, EPA disagrees with commenters suggestions. There is no fundamental difference in technological performance based on waterbody so there is no need to subcategorize based on waterbody. EPA found that low CUR facilities are generally peaking plants that operate at full capacity for portions of days during a few months or less. Further, EPA found that some sites continue to withdraw water through their cooling water intake structure even when no power is being generated. If that period of cooling water intake operation corresponds with times when spawning is occurring, those facilities could have significant impacts from impingement and entrainment. Therefore, simply being a low CUR unit does not imply no adverse environmental impacts. Instead, EPA found that low CUR should be looked at more closely on an individual unit basis. EPA has included a provision in the final rule that states where a generating unit has an annual average capacity utilization rate of less than 8 percent averaged over a 24-month block contiguous period, the owner or operator may request that the Director establish less stringent standards for IM. With respect to facilities below 125 AIF being considered entrainment compliant, EPA disagrees with the comment since any facility at any flow may have an adverse environmental impact. With regard to entrainment survival, EPA does allow for consideration of entrainment survival. The monitoring requirements for entrainment for new units at § 125.96(d)(3) states that mortality after  passing the cooling water intake structure must be counted as 100  percent mortality unless you have demonstrated to the approval of the  Director that the  mortality for each species is less than 100 percent.
3.	Closed-Cycle Cooling
Both industrial stakeholders and many state agencies endorsed an approach that deems facilities with closed-cycle cooling to be in compliance with the BTA impingement mortality standard, and eligible for reduced monitoring and reporting requirements. Most industrial stakeholders agreed with the EPA decision that closed-cycle cooling should not be imposed as a national BTA standard. They argue that although closed-cycle cooling might be available and achievable at many facilities, requiring closed-cycle cooling nationally has numerous drawbacks including the following:
       Requirements for closed-cycle flow reduction do not take into consideration the site-specific limitations at some facilities (e.g., blowdown water quality, scale, fouling problems).
       Cooling towers would result in significant adverse impacts from fine particulates, carbon dioxide emissions, evaporative water loss, and other issues.
Commenters expressed concern that the proposed definition of a closed-cycle recirculating system is far more restrictive than the definition used in the Phase I rule. It includes only systems that withdraw make-up flow intermittently, are designed to operate above minimum COC, reduce flow by a specified percentage (depending on whether salt or fresh water), and did not include impoundments that are waters of the United States. Some commenters stated that while they might have been effectively operating as closed-cycle units for many years, they have concerns with their ability to comply with the definition in the proposal, particularly with respect to the specified COC.
Response: EPA agrees that facilities employing a closed-cycle recirculating system for entrainment should also be deemed in compliance with the impingement mortality standard, as long as the system is properly operated. While a closed-cycle recirculating system is the most effective technology for reducing entrainment, EPA has not established BTA based on closed-cycle cooling because EPA concluded it was not BTA, for the reasons specified in Section VI. Regarding the definition of closed-cycle cooling, EPA identified two parameters that demonstrate proper operation:  flow reduction and cycles of concentration. To provide flexibility, EPA has removed the numeric levels of the metrics as threshold, while retaining the minimized makeup flows aspect of the definition.  Therefore while the definition in this final rule does not establish fixed requirements in terms of COC and comparable percentage flow reduction to qualify as a closed-cycle recirculating system, the rule provides that a closed-cycle recirculating system "generally" will achieve the specified benchmarks that characterize a properly operating closed-cycle cooling system. EPA further recognizes that certain unavoidable circumstances could exist where the specified COC or percent reduction values might not be achievable. Such site-specific circumstances could include situations where water quality-based discharge limits might limit the concentration of a pollutant that is not readily treatable in the cooling tower blowdown or situations where the source water quality could lead to unavoidable problems concerning scale formation, solids buildup, corrosion, or media fouling. If a facility can demonstrate that these occurrences are unavoidable, under the definition in the final rule, the Director may determine that such a facility is a closed-cycle recirculating system, taking into account the site-specific circumstances. In addition, EPA has explained how the conditions added to the existing facilities definition do not in effect make it more stringent than the Phase I definition of closed-cycle recirculating systems. The auxiliary electricity a facility uses to run the fans in a closed-cycle system is electricity the facility can't sell. The opportunity cost to the facility of using that electricity to run the fans is the forgone revenue they would have been able to earn if they had run their cooling water system in once-through mode. The forgone revenue provides the incentive for a facility to run its closed-cycle system in once-through mode, rather than in closed-cycle mode. Thus, EPA adjusted the definition of a closed-cycle recirculating system to be appropriate for retrofit situations.
F.	Implementation
Many commenters expressed concern that the compliance timeline for impingement mortality and entrainment requirements should be synchronized to prevent a facility from having to install technology to comply with impingement mortality requirements and then later be required to install entrainment mortality technology.
Response: To address this concern, EPA revised the impingement mortality compliance requirements to provide that after issuance of a final permit establishing the entrainment requirements under § 125.94 (d), the owner or operator of an existing facility must comply with the impingement mortality standard in paragraph § 125.94(c) as soon as practicable. When the Director establishes a compliance schedule under § 125.94(d), the schedule must provide for compliance as soon as practicable. Thus, EPA has synchronized decision making about technology requirements, avoiding situations where investments in IM controls would later be rendered obsolete by entrainment control requirements.
G.	Costs
1.	Impingement Mortality Technology Costs
Commenters expressed concern about the approach for technology assignments used to estimate compliance with the impingement mortality standards and generally asserted that costs were underestimated. These concerns included the following:
       The EPA incorrectly assumed traveling screens were an available technology at most facilities.
       EPA underestimated the costs of modified traveling screens.
       EPA underestimated the difficulty and costs of installing fish returns.
Response: EPA disagrees that traveling screens are not an available technology at most facilities; survey data provided by industry shows that 93 percent of generators and 73 percent of manufacturers already have screens. EPA agrees that some facilities may not be able to readily upgrade their screens to modified traveling screens with fish return, but that the vast majority can.
EPA has updated the estimated costs of the rule to reflect the difficulty of installing fish return and adjusted the cost of modified traveling screens to reflect most recently available vendor data. Specifically, EPA reviewed the cost methodology and made a number of revisions including the following:
       EPA revised the technology assignment such that only those model intakes that have existing traveling screens are assigned modified traveling screen costs.
       EPA increased the estimated capital costs for modified traveling screens by 20 percent.
       EPA increased the estimated capital costs of fish returns and provided for an additional increase for facilities whose intakes would be difficult to install fish returns.
For further discussion, see Section IX and the TDD (Chapter 8).
2.	Entrainment Mortality Technology Costs
Industrial stakeholder commenters argued that closed-cycle cooling costs are underestimated and the cost analysis fails to include any costs for entrainment requirements. Riverkeeper argued that the EPA closed-cycle costs are overestimated.
Response: For both the proposal and this final rule, EPA revised the methodology for estimating closed-cycle costs from what was used for Phase II and Phase III. EPA's revised methodology is based on the cost methodology provided by the Electric Power Research Institute (EPRI). EPRI based its cost methodology on over 50 actual and planned closed-cycle cooling system retrofits and EPA concluded that these cost estimates better reflect actual costs. EPRI has updated their closed-cycle cost methodology since EPA adoption of the earlier version and provided an estimate of closed-cycle costs for generators with a design flow above 50 mgd (See DCN 12-6807). A comparison between the EPRI estimates and comparable EPA estimates indicate that the EPA capital and downtime costs are somewhat lower than the EPRI estimates, while the EPA energy penalty costs are higher. (See DCN 12-6656.)  While Riverkeeper cites actual costs from retrofit projects completed in 1998 and 2002 to support the argument that EPA's capital costs are overestimated, EPA has identified more recent closed-cycle retrofits where the capital costs were much higher than the EPA average, suggesting that the costs used by EPA in the final rule are representative of the range of costs that may occur nationwide. (See DCN 12-6656.)  Thus EPA considers its closed-cycle costs to reasonably reflect actual costs.
EPA also received estimated costs for closed-cycle retrofits at small, medium, and large manufacturing cooling systems from the American Chemical Council (ACC). A comparison of these costs to comparable EPA estimates indicated that for larger systems the costs are mostly in agreement but that for smaller systems (e.g., 5,000 gpm), the EPA cost estimates are lower. EPA's acknowledges its methodology uses a linear approach and does not fully account for the increased costs associated with the diseconomies of scale at the lower end of the spectrum of system sizes.
Under EPA's selected option, compliance for entrainment reduction requirements is established on a site-specific basis. Because no particular result is prescribed under this approach, it is difficult to ascribe compliance costs for this aspect of the rule without the site-specific information that will be generated as a result of the national BTA standard for entrainment decision-making established by today's rule. For Proposal Options 2 and 3 where closed-cycle cooling would be required, EPA did estimate costs for closed-cycle cooling. EPA has not estimated what site-specific determinations will be made as part of the analysis.
H.	Monitoring and Reporting
1.	Velocity Monitoring
Many commenters explained that it would be difficult to directly measure through-screen velocity for screen technology and agreed with the suggestion in the NODA that EPA should allow for calculation of through-screen velocity. Also, many were concerned that a velocity limit based on minimum water levels would be difficult to comply with. Of concern are extreme conditions that are beyond the facility's control (e.g., low water due to drought).
Response: EPA agrees that direct measurement of intake velocity on a traveling screen may be problematic in some circumstances, and the final rule allows intakes to comply with the low velocity IM compliance alternatives by either calculation or direct measurement. Compliance will be demonstrated through monitoring and reporting of actual or calculated intake velocities. Short-term exceedances of the velocity may be permissible for brief periods, with Director approval, for purposes of maintaining the cooling water intake system, such as backwashing the screen face. EPA expects that facilities will employ appropriate design and operational measures to ensure that the maximum velocity is not exceeded during minimum ambient source water surface elevations, as can be anticipated through best professional judgment using hydrological data.
2.	Impingement Mortality Monitoring
EPA received many comments concerning impingement mortality monitoring. Issues regarding impingement monitoring included the following:
       Many commenters expressed concern that the impingement mortality standard is unclear as to what species the impingement mortality requirements apply.
       Intakes with low impingement would have difficulty calculating impingement mortality.
       Monitoring requirements for impingement mortality are excessive, especially given the physical and biological challenges of appropriate sampling.
       Monitoring requirements should be eliminated for properly installed/operated pre-approved technologies.
       Impingement "selects" impaired organisms, resulting in bias.
Response: EPA has addressed concerns regarding monitoring in the final rule. For example, there is no biological compliance monitoring for pre-approved and streamlined compliance alternatives in § 125.94 (c)(1) through (6) of today's rule beyond that required for the permit application, and monitoring may be greatly reduced for other facilities. EPA recognizes that biological monitoring can be expensive, which factored into EPA significantly reducing those requirements. With respect to intakes with low impingement having difficulty calculating impingement mortality, facilities can demonstrate under § 125.94(c)(6) that the rate of impingement is reduced due to intake location or other technologies or factors. Further, under § 125.94(c)(11) a facility can demonstrate to the Director that there is a de minimis rate of impingement such that no additional controls are warranted.
3.	Reporting Requirements
Comments concerning reporting requirements included the following:
       Commenters argue that permit application deadlines are unreasonable, especially given the limited number of consultants available and that EPA overestimates the number of facilities that have completed these studies.
       Peer review requirements are overly burdensome.
       Permit application requirements are burdensome and EPA should revise the proposed rules to remove, limit, or streamline the numbers and types of data, studies, and reports required. Permit application requirements should be reduced for smaller facilities with intake flow in the 2 - 125 mgd range.
       The proposed rule requires the § 122.21(r) permit application materials for each permit cycle, regardless of whether the facility has been modified. After the initial assessment of BTA in the first permit cycle under the new rule, the permittee should not be required to do additional studies and submit further documentation unless there is a significant change in the facility's cooling system.
Response: EPA notes that facilities have several flexibilities to address the first point, including: (1) if a permit is issued prior to [INSERT date 45 months after effective date of final rule], the Director can delay submission requirements until such time that the facility can complete them and (2) in permit terms subsequent to the first permit issued under today's rule, the Director can waive some or all of the studies. With respect to peer review, EPA disagrees that peer review is overly burdensome. How to undertake a peer review is widely known, generally following a well-established process. EPA notes that peer review is a normal part of Agency activities, and that commenters generally favor the application of peer review to environmental data and analyses. With respect to the burden of the permit application process and subsequent permit cycles, EPA has reduced the permit application requirements for the final rule and streamlined biological data collection to two years of data collected as part of the permit application (with the exception of the few facilities expected to comply with the impingement mortality standard under the alternative at § 125.94(c)(7)). In addition, entrainment studies are not prescribed for facilities below 125 mgd, although the Director may require the facility to provide information beyond the basic permit application information. Also, the Director can waive study requirements in permit terms subsequent to the first permit issued under today's rule.

I.	Endangered Species Act
Some commenters argued that it is inappropriate to automatically treat T&E species in a special category and provide for special consideration for them under the rule. These commenters asserted that EPA has no basis for incorporating ESA requirements into the rule and addressing ESA species under the NPDES program; they argued that the ESA operates independently.  Other commenters argued that EPA has an obligation under the ESA to consult with the Services if cooling water intake structures are likely to affect threatened or endangered species.
Response: EPA has addressed T&E species and critical habitat in this rule to the extent necessary to ensure that this action is consistent with both the Endangered Species Act and CWA section 316(b). Section 7 of the Endangered Species Act states that "each Federal agency shall, in consultation with and with the assistance of [the services] insure that any action authorized, funded, or carried out by [the agency]... is not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of [designated critical] habitat." Under CWA section 316(b), facilities subject to NPDES permitting that have cooling water intake structures are subject to BTA to minimize adverse environmental impacts. The final rule requires NPDES 316(b) permittees to identify all Federally-listed threatened and endangered species and/or designated critical habitat that are or may be present in the action area. The Director may reject an otherwise available technology as a basis for entrainment requirements if the Director determines there are unacceptable adverse impacts including impingement, entrainment, or other adverse effects to Federally-listed threatened or endangered species or designated critical habitat.  EPA consulted with the Services under the ESA regarding this rule, and a summary of the requirements related to threatened or endangered species is discussed in Section VIII.K of this preamble.

VIII.	Implementation
      The following sections describe how the Agency expects the final rule requirements to be implemented. The requirements of today's final rule will be applied to facilities through NPDES permits issued by EPA or authorized States under CWA section 402. A facility may generally choose to demonstrate compliance with the final rule by demonstrating compliance for the entire facility, or by demonstrating compliance for each individual cooling water intake structure. For example, a facility with two intakes could demonstrate flow reduction commensurate with an existing closed-cycle recirculating system for the first intake, and demonstrate the intake velocity at the screen face is less than 0.5 feet per second at the second intake. Alternatively, the facility could demonstrate that each of the facility's intakes are designed with an intake velocity of less than 0.5 feet per second. For details about the scope and applicability of today's final rule, see Section I above.
      Today's final rule (as described in Section IV above) establishes permit application requirements for existing facilities in §§ 122.21 and 125.95, monitoring requirements in § 125.96, and record-keeping and reporting requirements in § 125.97. All existing facilities subject to the final rule that withdraw from one or more cooling water intake structures with a facility-wide DIF of greater than 2 mgd are required to comply with the national BTA impingement mortality standard at § 125.94(c) and national BTA entrainment standard at § 125.94(d). New units at existing facilities are required to meet the national BTA impingement mortality and entrainment standards at § 125.94(e).
      The final regulations also require the Director to review permit application materials submitted by each regulated facility, establish impingement mortality and entrainment requirements in accordance with this rule, and issue permits that include monitoring and record-keeping requirements (§ 125.98). The permit application requirements, monitoring, record-keeping, and reporting requirements for each of the compliance alternatives are detailed in the following sections.
A.	When Does the Final Rule Become Effective and How are the Requirements Sequenced in an Orderly Way?
      This rule becomes effective on [INSERT date 60 days after publication]. The requirements in this rule will then be implemented in NPDES permits as the permits are issued.
      EPA has sought to address the information and studies required in the permit application associated with ongoing permitting proceedings and subsequent permitting after the first implementation of this rule in a permit. The EPA realizes that, in some cases, a facility may already be in the middle of a permit proceeding at the time of promulgation of this rule, or the Director may have already required much of the same information be submitted by the facility prior to promulgation of today's final rule. Therefore the rule includes several provisions that provide flexibility for the permit application requirements. First, in the case of any permit expiring after [INSERT date 45 months after effective date of final rule], under § 125.95 the facility must submit permit application materials required in § 122.21(r) with its next NPDES permit renewal application. Second, in the case of any permit expiring prior to [INSERT date 45 months after effective date of final rule], under § 125.95 a facility may request that the Director waive the submission date of the permit application requirements of § 122.21(r) based on a showing by the owner or operator of the facility that it could not develop the information for which such a waiver is requested by the time required for submission of the permit renewal application. If the Director then chose to allow a delay for the submittal of any of the information requirements of § 122.21(r), the Director would then determine the schedule for submission of any delayed requirements to be as soon as practicable. Third, in the case of permit proceedings begun prior to the effective date of today's rule, and issued prior to [INSERT date 45 months after effective date of final rule], the Director should proceed. See §§ 125.95(a)(2) and 125.98(g). In such circumstances where permit proceedings have already begun prior to the effective date of the rule, these facilities will still need to submit the appropriate permit application materials found at § 122.21(r) permit applications during their next application. Additionally, while EPA expects that many facilities will already comply with § 125.94(c), in some cases the facility will need to choose one of the compliance alternatives for IM in their subsequent permit cycle. In particular, EPA expects the facility would submit the information required in § 122.21(r), and the Director would make a determination of BTA for entrainment for that facility. Only after the Director has established site-specific BTA requirements for entrainment reduction will the facility have to select the compliance alternative on which it will rely to meet the IM requirements of today's rule. The Director may either amend the permit to include the IM requirements or include them in a subsequent permit if the Director determines the proposed controls are consistent with § 125.94(c).  The Director would establish a schedule incorporating each of these sequential actions.  In addition, the rule allows the Director the flexibility to grant a request for a waiver of permit application requirements in § 122.21(r)(6) in order to accommodate the circumstances described here. See §§ 122.21(r)(1)(i) and 125.95(a).  Fourth, in permit applications subsequent to the first permit issued under § 125.94(a)(1) with all required information submitted under § 122.21(r), the Director may approve a request to reduce information required, if conditions at the facility and in the waterbody remain substantially unchanged since the previous application. See § 125.95(c). In addition to all of these flexibilities, today's final rule gives advance notice to affected facilities about permit application materials and compliance schedules.
      While the final rule has both reduced and streamlined the permit application requirements, the EPA has determined that for many facilities, it may take as long as 39 months to plan, collect, and compile the data and studies required to be submitted with the permit application (see Section C below for a more detailed discussion of each application element). The rule therefore specifies that [INSERT date 45 months after effective date of final rule] reflects the date after which all permit application requirements must be submitted as specified at § 125.95. Specific permit requirements may not need a full 39 months for completion, therefore the Director may establish a schedule for submission of the required permit application elements. For example, planning for required sampling may take 6 months, inclusive of establishing a sampling team, developing sampling protocols, and acquiring necessary equipment. Source water sampling and characterization under § 122.21(r)(4) includes two years' worth of data.  Therefore, the EPA expects a minimum of 30 months will be necessary for submission of § 122.21(r)(4), assuming the facility collects new data; this timeframe could be shorter if the facility chooses to use existing biological data. Facilities choosing to comply with the IM requirements through either § 125.94(c)(5) or (c)(6) must collect at least 2 years data upon which the facility would demonstrate that the modified traveling screens or the facility's systems of technology have been optimized to minimize impingement mortality. Therefore, the EPA expects a minimum of 30 months will be necessary for submission of § 122.21(r)(6), assuming the facility collects new data. Collection of entrainment characterization data and studies should occur in parallel with IM studies and sampling. Thus, after the initial 6 month planning period, facilities that do not already have recent entrainment characterization data will collect a minimum of 2 years entrainment data under § 122.21(r)(9).  Facilities are expected to need an additional 9 months to assemble the entrainment data and studies as required by § 122.21(r)(9) through (12). Therefore, the EPA has concluded that as many as 39 months will be necessary for final submission of all requirements under § 122.21(r).  This time frame will be adequate for facilities under 125 mgd AIF; facilities over 125 mgd AIF also need to have their 122.21(r)(10) to (12) studies peer reviewed.  The EPA expects 3 months will be needed for completion of peer review requirements and generation of a final report. However, many of the facilities over 125 mgd AIF were subject to the Phase II rule before it was suspended (that is, all electric generators over 125 mgd AIF are also above 50 mgd DIF), and likely need less time for up front planning and/or data collection.  Therefore, the EPA has concluded that as many as 39 months will be adequate for these facilities to meet all requirements under § 122.21(r).  These time frames are consistent with the timeline EPA included in the proposed rule, and also matches the 3 (1/2) years previously provided in the Phase II rule for data collection and studies. EPA notes the submission of the studies required with the permit application should not be confused with the schedule for compliance with the BTA requirements, as discussed below.
      EPA has also sought to sequence the impingement mortality controls so that a facility may select and implement these controls after the Director's determination of controls on entrainment. With respect to entrainment requirements, existing facilities withdrawing greater than 125 mgd AIF must submit permit application materials including the studies prescribed in today's final rule at § 122.21(r)(9) through (13) in order to help the Director determine what entrainment controls to require at the facility. Facilities at or below this threshold must submit any information requested by the Director. The Director will then review these materials and determine if further entrainment controls are necessary. Once the BTA requirements for entrainment have been established, the facility would finalize its chosen method for compliance with impingement mortality under § 125.94(c). It would then be appropriate for the Director to develop a schedule whereby the facility would proceed to design, construct, and implement its technologies for impingement mortality, for entrainment, or for both together should the same technology addresses both impacts. In this manner, the EPA has harmonized the schedules for meeting both impingement mortality requirements and entrainment requirements.
      EPA further notes that approximately 2 percent of facilities have no controls in place for impingement or entrainment, or that a facility may choose to install modified traveling screens as part of its compliance response. In these circumstances, not only does EPA expect such decisions to be delayed until after the Director has determined the BTA requirements for entrainment, EPA acknowledges that the required optimization study of § 122.21(r)(6) cannot be completed until after the technology has been designed and constructed. EPA has provided the Director the flexibility to establish an appropriate schedule for submission of such studies under § 125.95(a)(2).
      After the effective date of the regulation, when the first permit implementing the new regulatory requirements is issued, permitting authorities typically consider the need to allow facilities some period of time to come into compliance. Under today's final rule, facilities will have to comply with the impingement mortality and entrainment requirements as soon as practicable according to the schedule of requirements set by the Director. The concept of compliance schedules may be found in the generally applicable NPDES regulations at 40 CFR 122.47.  Because section 316(b) has no statutory deadline for meeting the "best available technology for minimizing adverse environmental impact" standard, there is no statutory bar to use of a compliance schedule in appropriate circumstances.  The EPA recognizes that it will take facilities time to upgrade existing technologies, and install new technologies, and that there are limits on the number of facilities that can be simultaneously offline to install control technology and still supply goods and services to orderly, functioning markets. It is appropriate for the Director to take this into account when establishing a deadline for compliance. Any such schedule would take into account factors provided in § 125.98(c), such as measures needed to maintain adequate energy reliability by an electric generating facility, or extenuating circumstances such as scheduled production outages at a manufacturing facility.
      There may be overlap in the technologies used to comply with impingement mortality and entrainment standards, which could result in the facility needing more time to comply with the impingement mortality requirements. For example, if a facility plans to retrofit to wet cooling towers to reduce entrainment, the wet cooling towers technology will also comply with the impingement mortality standard under § 125.94(c)(1). As such, the Director would schedule compliance with the impingement mortality requirements to match the schedule for entrainment requirements. Further, EPA recognizes that in some cases, especially where additional entrainment control technologies are required, the facility could require a lengthy period of time to design, construct, and implement control technologies. Therefore, the rule authorizes the Director, at § 125.94(h), to establish interim BTA requirements in a facility's schedule of requirements, for impingement mortality, entrainment, or both, where necessary on a site-specific basis.
      In contrast to the proposed rule, today's final rule does not include a requirement for compliance with the impingement mortality standards within eight years. EPA expects, however, that the final rule will generally result in compliance within a similar period of time. The combination of permit issuance, the Director's determination of BTA for entrainment, and the subsequent schedule of requirements for impingement mortality will result in some facilities, particularly those already in a permitting proceeding, or with controls similar to what the new permit requires, being in compliance within a very short time frame. Some facilities that are not now in a permitting proceeding may need as much as three and a half years to fully complete their studies and data collection, and depending on the types of control selected, may need additional time to design, construct, and implement their technologies. In some cases, the Director's determination for entrainment may result in a facility meeting both the impingement mortality and entrainment BTA requirements in fewer than eight years. All facilities will be required to follow their schedule as determined by the Director.
      EPA notes that there is a three-year period after the effective date of this rule before Directors will be receiving permit applications containing the full set of application requirements in § 122.21(r).  EPA is aware that currently many NPDES permits for facilities with a CWIS have been administratively continued.  For these administratively continued permits, the Director should consider if any permits would need additional updated information to support the permit issuance decision. The Director may, under 40 CFR 122.21(g)(13), request additional information including any permit application requirements in § 122.21(r).
B.	How Does the Final Rule Reduce Biological Monitoring Requirements?
	The EPA has streamlined the biological data and study requirements for both impingement mortality and entrainment into one comprehensive set of permit application requirements and provisions. The Source Water Baseline Biological Characterization Data, impingement technology performance optimization study, Entrainment Characterization Study, and where applicable, entrainment performance studies are all conducted within the same two year time frame prior to submission of an application for a permit. Further, as shown in Exhibit VIII-1, EPA's analysis indicates that more than 99 percent of existing facilities will choose an alternative for impingement mortality that does not require continual biological compliance monitoring. Thus any required biological data consists solely of that required to be collected to meet the permit application requirements. See Section F for further discussion.
Exhibit VIII-1. EPA's projections of how facilities will choose to comply with the IM Requirements
IM Compliance Alternative
                                Intake Count[a]
                           Percent of Total Intakes
Closed-cycle recirculating system[c]
307
18%
Design velocity
362
21%
Actual velocity
226
13%
Existing offshore velocity cap[c]
10
1%
Modified traveling screens
488
29%
System of technologies
278
17%
Impingement Mortality Performance Standard
12
0.7%
De minimis
**[b]
**[b]
Total
1682
100%
a. EPA's compliance costs for each facility are based on the sum of the facility's intake level compliance costs. Some facilities have more than one intake. See IX.B.2 for more information on the use of the survey data.
b. EPA has not estimated which facilities will be determined to be "de minimis" under § 125.94(c)(11) by the Director. For purposes of this analysis, EPA has assumed no facilities fall under the "de minimis" provision.
c. EPA is not projecting facilities will install closed-cycle recirculating systems or offshore velocity caps to comply with the IM requirements, rather these facilities already have these technologies installed.

      By merging the data collection and studies into the permit application requirements, EPA expects approximately half of all affected facilities will be able to complete the initial permit application within a few months. In the case of a facility that was not previously required to collect data and conduct studies, it may take up to 45 months lead time for a permit to be applied for, and additional time for the permit to be issued.  Although the permit application times may be longer for the first permit cycle after this rule, this is a tradeoff for the flexible IM requirements.
      Once the permit is issued, EPA anticipates very few, if any, facilities will be required to conduct ongoing biological compliance monitoring related to impingement controls; for more details, see Section F and Exhibit VIII-4. Instead, for each subsequent permit cycle each facility would either (1) demonstrate to the Director that facility operations and waterbody characteristics are substantially unchanged, or (2) update any biological characterization data. Anticipating that NPDES permits are renewed when they expire, the update to the facility's biological characterization and any corresponding biological performance evaluations would be conducted approximately every five years.
C.	What Information Will I Be Required to Submit to the Director When I Apply for My NPDES Permit?
      Today's final rule establishes, at § 122.21(r), permit application requirements for all facilities subject to the requirements of § 125.94. Each permit application element at § 122.21(r) is described in more detail below. The final rule requires existing facilities to prepare and submit some of the same information as previously required for new facilities subject to subparts I or N (i.e., Phase I new power plants and manufacturers or Phase III new offshore oil and gas facilities), namely the information at § 122.21(r)(2) through (4). In addition, the rule adds subparagraphs for existing facilities to the regulations at § 122.21(r)(4), as well as (r)(5) through (13) to include the information and study requirements specific to existing facilities.
      In the case of a new unit constructed at an existing facility, EPA expects much of the information submitted by the facility in previous permit applications would still be current and relevant. Therefore, EPA has reduced the permit application requirements to those necessary to update the facility's previously submitted information under § 122.21(r)(2), (r)(3), (r)(4), (r)(5), (r)(6), (r)(7) and (r)(8). In other words, the new unit permit application is intended to describe the changes to these documents as a result of the addition of the new unit. In addition, the facility must submit information specific to the new unit's chosen compliance method at § 122.21(r)(14).
      All existing facilities are required to complete and submit permit application studies to describe the source waterbody (§ 122.21(r)(2)), cooling water intake structures (§ 122.21(r)(3)), characterize the biological community in the vicinity of the cooling water intake structure (§ 122.21(r)(4)), cooling water system (§ 122.21(r)(5)), and operational status (§ 122.21(r)(8)). Facilities that already use a closed-cycle recirculating system must still submit this information in their permit application.  The Director will need, for instance, the biological sampling data in (r)(4) to serve as a record basis for their BTA determination in the permit.  Furthermore, in Phase I, new facilities were required to be commensurate with closed-cycle, to meet the 0.5 fps velocity limit, and to collect two years' worth of biological data to establish a record basis for impacts at the facility.  In addition, the data collected here is important to inform an owner/operator's evaluation of whether and if so what threatened or endangered species or designated critical habitat are or may be present in the action area.
      All existing facilities must describe their existing impingement and entrainment technologies or operational measures and a summary of their performance, including but not limited to reductions in impingement mortality and entrainment due to intake location and reductions in total water withdrawals and usage (§ 122.21(r)(5)(iii)). All facilities must also complete and submit their chosen compliance method for impingement mortality (§ 122.21(r)(6)).  This includes identification of any requests for BTA determinations under § 125.94(c)(11) de minimis rates of impingement or § 125.94(c)(12) low capacity utilization power generation units.  In addition, the owner or operator of an existing facility must submit the information required under paragraph (r)(6) for the alternative specified at 40 CFR 125.94(c) that the owner or operator of an existing facility chooses to rely on as its method of compliance with the BTA Standards for Impingement Mortality specified in 40 CFR 125.94. Because the IM compliance options § 125.94(c)(1), (2), and (4) include pre-approved technologies, the owner or operator of a facility choosing one of these three options to comply with the IM requirements does not have either biological studies or biological compliance monitoring related to the applicable IM standard. Compliance options § 125.94(c)(3), (5), and (6) are streamlined options. For these three options, the permit application element § 122.21(r)(6) further requires a site-specific study for the purposes of technology optimization to minimize impingement mortality, including additional biological data collection that in most cases would occur during the same two year period of data collection for the Source Water Baseline Biological Characterization Data required under § 122.21(r)(4) to characterize the baseline, and a demonstration that the operation of specific technologies at your facility have been optimized to minimize impingement mortality. The owner or operator of a facility choosing one of these three options to comply with the IM requirements do not have ongoing biological compliance monitoring as part of the applicable IM standard. As discussed in the previous section, the Director can establish a schedule for submitting the optimization study if the facility first needs to install additional technology for IM.
      All existing facilities may submit to the Director additional permit application studies to describe biological survival studies that address technology efficacy and other studies on entrainment at the facility (§ 122.21(r)(7)). This requirement does not impose any new or additional study requirements. This permit application element includes the submission of existing studies conducted by or relevant to the facility. Further, the burden of this requirement has been reduced since proposal by only referring to studies of entrainment.
      All existing facilities that withdraw more than 125 mgd AIF of water for cooling purposes must also submit additional information to characterize entrainment and assess the costs and benefits of installing various potential technological and operational controls. These facilities are required to submit to the Director additional permit application studies including § 122.21(r)(9), Entrainment Characterization Study; § 122.21(r)(10), Comprehensive Technical Feasibility and Cost Evaluation Study; § 122.21(r)(11), Benefits Valuation Study; and § 122.21(r)(12), Non-water Quality Environmental and Other Impacts Assessment. As with the biological data collection required of some facilities under § 122.21(r)(6), EPA expects biological data collection for the purposes of entrainment characterization to occur during the same two year period of biological data collection required under § 122.21(r)(4). EPA notes that facilities below the 125 mgd threshold are not automatically exempt from entrainment requirements. The Director may determine that entrainment studies may be required or that entrainment controls may need to be installed for any cooling water intake structure. See the Section VI of this preamble for more information.
      The final rule further requires the studies at (r)(10) through (r)(12) be subject to an external peer review as required at (r)(13); a separate peer review is not required for § 122.21(r)(9), as it is implicitly reviewed via its use in (r)(10) and (r)(11). EPA expects the facility would first notify the Director of the peer review in advance. For example, facilities could identify their peer reviewers near the beginning of their biological data collection for the required Entrainment Characterization Study at § 122.21(r)(9). Since a facility's permit application requires two years of biological data, EPA expects this is more than enough time for the facility to identify peer reviewers, and for the Director to disapprove of a peer reviewer or require additional reviewers. Further, this provides the Director ample opportunity to confer with those agencies with responsibility for fish and wildlife potentially affected by the cooling water intake structure, including other Federal, State, and Tribal agencies. Similarly, in the case of permits for electric generating utilities, EPA expects this is enough time to confer with state co-regulators such as public utility commissions, or independent system operators whose responsibility it is to ensure reliability of the electricity grid. To minimize the overall time required to conduct a peer review, all studies conducted by the facility under § 122.21(r)(10) through (12) will be subject to peer review at the same time, in a holistic fashion. Additional guidance on conducting peer review is available on EPA's Peer Review Program website at www.epa.gov/peerreview. EPA expects the Director will use the permit application information, studies, and peer review results to assess the impingement and entrainment impacts of the cooling water intake structure and determine appropriate technological or operational controls, or both, as necessary.
      While all facilities must submit § 122.21(r)(2) through (6) and (r)(8) and, where applicable (r)(7), EPA has reduced the permit application requirements based on the facility's chosen compliance method for impingement mortality. Exhibits VIII-2 and VIII-3 below illustrate the permit application requirements as they relate to an existing facility's chosen compliance methods. EPA expects permit application requirements for new units will consist of updates to previously submitted permit applications for the rest of the existing facility at which the new unit is being constructed.
      For a new unit at an existing facility, EPA expects that only the appropriate and relevant updates to the existing facility's permit application materials are required (in addition to newly developed materials required at § 122.21(r)(14)). For example, the facility would update § 122.21(r)(3) to indicate the addition of the new unit, any new intakes associated with the new unit, expected operational characteristics, etc. For the owner or operator of a new unit and with an AIF greater than 125 mgd, the permit application materials under § 122.21(r)(9)-(13) are required. In those circumstances where data specific to the facility indicate that compliance with the requirements of paragraphs (e)(1) or (2) of § 125.94 for a new unit would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirements at issue, or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets, the rule requires the submission of such data as part of 122.21(r)(14). EPA notes that when a new unit increases an existing facility's AIF greater than 125 mgd, the permit application requirements also include 122.21(r)(9) through (13). Further, facilities may need several years to complete studies and data collection and, depending on the types of controls selected, may need additional time to design and construct their technology. Thus while the rule requires the permit application for a new unit at least 180 days prior to commencing cooling water withdrawals, it is in the facility's best interest to submit this data well in advance in order to prevent any delays in the Director's review of permit application materials and subsequent issuance or renewal of the facility's NPDES permit.  For the owner or operator of a new unit opting to comply via 125.94(e)(2) the application materials required under 122.21(r)(14) must demonstrate entrainment reductions equivalent to 90 percent or greater of the reduction that could be achieved through compliance with 125.94(e)(1).
Exhibit VIII-2. Summary of permit application requirements for existing facilities according to existing facilities' chosen method for compliance with impingement mortality standard
Compliance approach to Impingement
                             § 122.21 subsection

 (r)(2)
(r)(3)
 (r)(4)
(r)(5)
(r)(6)
(r)(6)(i)
(r)(6)(ii)
(r)(8)
Closed-cycle recirculating system
 Yes
Yes
 Yes
Yes
Yes
No
No
Yes
Design intake velocity
 Yes
Yes
 Yes
Yes
Yes
No
No
Yes
Actual intake velocity
 Yes
Yes
 Yes
Yes
Yes
No
No
Yes
Existing offshore velocity cap
 Yes
Yes
 Yes
Yes
Yes
No
No
Yes
Modified traveling screens
 Yes
Yes
 Yes
Yes
Yes
Yes
No
Yes
Combination of technologies
 Yes
Yes
 Yes
Yes
Yes
No
Yes
Yes
Impingement Mortality Performance Standard
 Yes
Yes
 Yes
Yes
Yes
Maybe
Maybe
Yes

Exhibit VIII-3. Summary of permit application requirements for existing facilities: entrainment
Compliance approach to Entrainment
                             § 122.21 subsection

(r)(7)
(r)(8)
(r)(9)
(r)(10)
(r)(11)
(r)(12)
(r)(13)
Closed-cycle recirculating system
Yes
Yes
Var.[a]
Var.[a]
Var.[a]
Var.[a]
Var.[a]
Director BTA entrainment determination: facility AIF above 125 mgd
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Director BTA entrainment determination: facility AIF 125 mgd or below
Maybe
Maybe
Maybe
Maybe
Maybe
Maybe
Maybe
   a. Director has the discretion to waive.
      In addition, the Director may set information requirements not included in today's rule to aid in best professional judgment permitting, such as will occur for entrainment at facilities below 125 mgd AIF, and for impingement and entrainment at existing facilities below 2 mgd DIF, neither of which are required by today's rule to submit items (r)(9) through (r)(13). The Director may find aspects of the permit application requirements to be relevant in such situations.  A summary of each permit application requirement follows.
1.	§ 122.21(r)(2) Source Water Physical Data
      This requirement is unchanged from the Phase I rule and the 2004 Phase II rule. The facility is required to submit data to characterize the facility and evaluate the type of waterbody potentially affected by the cooling water intake structure. The applicant is required to submit a narrative description and scaled drawings showing the physical configuration of all source water bodies used by the facility, including areal dimensions, depths, salinity and temperature regimes, and other documentation that supports the determination of the waterbody type where each cooling water intake structure is located; identification and characterization of the source waterbody's hydrological and geomorphological features, and the methods used to conduct any physical studies to determine the intake's area of influence in the waterbody and the results of such studies; and locational maps. The Director uses this information to evaluate the appropriateness of any design or technologies proposed by the applicant.
2.	§ 122.21(r)(3) Cooling Water Intake Structure Data
      This requirement is unchanged from the Phase I rule and the 2004 Phase II rule. This data is used to characterize the cooling water intake structure and evaluate the potential for impingement and entrainment of aquatic organisms. Information on the design of the intake structure and its location in the water column allows evaluation of which species and life stages might be subject to impingement and entrainment. A diagram of the facility's water balance is used to identify the proportion of intake water used for cooling, make-up, and process water, as well as any cooling water supplied by alternate sources, such as reuse of another facility's effluent. The water balance diagram also provides a picture of the total flow in and out of the facility, and is used to evaluate gray water, waste water, and other reuses in the facility. The applicant is required to submit a narrative description of the configuration of each of cooling water intake structure and where it is in the waterbody and in the water column; latitude and longitude in degrees, minutes, and seconds for each cooling water intake structure; a narrative description of the operation of each of cooling water intake structure, including design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable; a flow distribution and water balance diagram that includes all sources of water to the facility, recirculating flows, and discharges; and engineering drawings of the cooling water intake structure.
3.	§ 122.21(r)(4) Source Water Baseline Biological Characterization Data
      This information is similar to that required in the Phase I rule. Existing facilities are required to characterize the biological community in the vicinity of the cooling water intake structure and to characterize the operation of the cooling water intake structures. This supporting information must include existing data if they are available. However, the facility may supplement the data using newly conducted field studies if it chooses to do so. The information the applicant must submit includes identification of data that are not available and efforts made to identify sources of the data; a list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the cooling water intake structure; and identification of the species and life stages that would be most susceptible to impingement and entrainment. All species should be evaluated, including the forage base and those species most important in terms of significance to commercial and recreational fisheries. In addition, the applicant must identify and evaluate the primary period of reproduction, larval recruitment, and period of peak abundance for relevant taxa; data representative of the seasonal and daily activities (e.g., feeding and water column migration) of biological organisms in the vicinity of the cooling water intake structure. In addition, instead of the information required at § 122.21 (r)(4)(vi), the owner or operator of an existing facility or new unit at an existing facility must identify all Federally-listed threatened and endangered species and/or designated critical habitat that are or may be present in the action area pursuant to paragraph § 125.95 (f). The action area can generally be considered the area in the vicinity of impingement and entrainment at the cooling water intake structure. The applicant must also include documentation of any public participation or coordination with Federal or State agencies undertaken. If the applicant supplements the information with data collected using field studies, supporting documentation for the Source Water Baseline Biological Characterization Data must include a description of all methods and quality assurance procedures for sampling, and data analysis including a description of the study area; taxonomic identification to the lowest taxon possible of sampled and evaluated biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis methods. The sampling or data analysis (or both) methods used must be appropriate for a quantitative survey and based on consideration of methods used in other biological studies performed in the same source waterbody. The study area should include, at a minimum, the area of influence of the cooling water intake structure. The applicant may also identify protective measures and stabilization activities that have been implemented and describe how these measures and activities affected the baseline water condition in the vicinity of the intake.
      EPA is adding item (ix), (x) and (xi) to the Source Water Baseline Biological Characterization Data for existing facilities. Item (ix) simply defines the term "Source Water Baseline Biological Characterization Data." EPA is requiring item (xi), identification of fragile species found at the facility. EPA notes that in contrast to the proposed rule, the permit application does not require submission of the proposed "species of concern." EPA found that the term "species of concern" was too similar to terms as used in the context of T&E (threatened and endangered) species, and may cause confusion over existing Services or State requirements for such species. Further, despite EPA's efforts to distinguish between species of concern and RIS (representative indicator species) in the NODA (77 FR 34325, June 11, 2011), EPA found that many commenters were still confused by the language. Instead, EPA is adopting the term "fragile species" and using the term exactly as it is used with the impingement mortality data and criteria used in calculating the impingement mortality standards of the rule. The definition for "fragile species" at § 125.92 is a species of fish or shellfish that has an impingement survival rate of less than 30 percent even when the BTA technology of modified traveling screens are in operation. EPA has identified fragile species in the Chapter 11 of the TDD for the final rule. Further, EPA is providing examples, in the list of 14 specific species in today's regulatory definition as a non-exclusive list. This list includes only those species specifically analyzed as part of the performance standards development. If a permit applicant can sufficiently demonstrate a record basis, the permitting Director may deem a particular species to be a fragile species for the purpose of a particular permit.
      American shad (Clupeidae), bay anchovy (Engraulidae), and blueback herring (Clupeidae) belong to families that are specifically identified in the TDD Chapter 11 as examples of species that may be, at the Director's discretion, excluded from performance standards on the basis of impingement survival. As another example, threadfin shad (a species not specifically identified as fragile in today's rule) are prone to fall die-off when  the water temperature reaches 42 degrees. The EPA does not intend for such naturally occurring mortality to be counted against a facility's performance in reducing impingement mortality. EPA is aware of limited success in flow reduction and behavioral deterrent systems in protecting fragile species. However, there are no demonstrated and available technologies for industry as a whole to address fragile species. EPA has long recognized these species as having low survival rates under the best of conditions, and established different mechanisms to address these in today's final rule. Today's BTA for impingement mortality allows the Director to establish site-specific controls under § 125.94(c)(9) to address fragile species.
      EPA notes the change in terminology to "fragile species" eliminates the proposed rule burden on States to review and approve each facility's site-specific species of concern, and eliminates confusion over any T&E or RIS that may be subject to more stringent requirements under other Federal, State, and Tribal law. Further, use of "fragile species" instead of "species of concern" greatly increases the transparency of the Agency's impingement mortality performance standards.
      In addition, EPA notes that (r)(4)(vi) requires the applicant to submit information on all threatened and endangered species, not just those T&E species that are fish or shellfish.  Examples of T&E species that are not fish or shellfish are corals, sea turtles and marine mammals.
4.	§ 122.21(r)(5) Cooling Water System Data
      The Director uses this data in determining the appropriate standards that would be applied to the facility. Facilities are able to use this information, along with the water balance diagram required by § 122.21(r)(3), to demonstrate the extent to which flow reductions have already been achieved at the facility level. The applicant must provide the following information for each cooling water intake structure they use: a narrative description of the operation of the cooling water system and its relationship to cooling water intake structures (including the use of helper towers); the proportion of the design intake flow that is used in the system including a distribution of water used for contact cooling, non-contact cooling, and process uses; a distribution of water reuse (to include cooling water reused as process water, process water reused for cooling, and the use of gray water for cooling); description of reductions in total water withdrawals including cooling water intake flow reductions already achieved through minimized process water withdrawals; description of any cooling water that is used in a manufacturing process either before or after it is used for cooling, including other recycled process water flows; the proportion of the source waterbody withdrawn (monthly); the number of days of the year the cooling water system is in operation and seasonal changes in the operation of the system, if applicable. The applicant must also submit a description of existing impingement and entrainment technologies or operational measures and a summary of their performance, including for example reductions in entrainment due to intake location and reductions in total water withdrawals and usage, and efficiencies in energy production for each producing unit that result in the use of less cooling water, including for example combined cycle and cogeneration. For example, the applicant may provide comparative density data for the intake to demonstrate the extent to which location of the intake has reduced adverse environmental impact. The additional information at § 122.21(r)(5)(iii) is specific to those process units that use cooling water for purposes other than power generation or steam, and where the owner or operator intends to comply with the BTA for IM through either the use of flow reduction measures or the reuse of other water for cooling purposes.
5.	§ 122.21(r)(6) Chosen Method of Compliance with Impingement Mortality Standard
      Today's final rule is flexible in providing seven different compliance options for meeting impingement mortality requirements. Under § 122.21(r)(6), the facility must identify its approach to meet the impingement mortality standards. The facility must identify the compliance method for the entire facility or, alternatively, the compliance method for each cooling water intake structure at the facility. Finding it to be unnecessary because the facility will already have a set of requirements to meet based on its chosen method of compliance, EPA has eliminated the proposed requirement for a separate impingement mortality reduction plan. In addition, monitoring and studies conducted under the reduction plan is no longer required by all facilities. Instead today's final rule specifies data collection requirements only in those instances where the facility must demonstrate a particular performance outcome as described below.
      Facilities choosing to comply with § 125.94(c) by operating a modified traveling screen (under § 125.94(c)(5)) must submit an impingement technology performance optimization study under § 122.21(r)(6)(i). The site-specific study must demonstrate the modified traveling screen as defined at § 125.92 has been optimized to minimize impingement mortality. The study must include a minimum of two years of biological data collection. This time frame is consistent with the requirements at paragraph (r)(4)(iv) to identify primary periods of reproduction and peak abundance, as well as (r)(4)(v) to provide data representative of the seasonal activities, both of which would require at least one year worth of data collection. EPA expects facilities will either use existing biological data already required under (r)(4) to complete their site-specific impingement studies, modify their biological data collections under (r)(4) to be comprehensive and inclusive, use existing performance studies, or collect supplemental data necessary to make their demonstrations. If a facility is using previously collected data or studies that are more than 10 years old, the facility must demonstrate the data is still relevant and representative of the facility. If a facility intends to return organisms to a different waterbody from which they are withdrawn, a request for consideration of this must be made to the Director under (r)(6).
      The rule specifies sampling at least monthly during the two year data collection effort of the impingement technology performance optimization study, and requires documentation of methods used including counting of moribund organisms, latent mortality, holding times, and counting of entrapment. The Director may establish more frequent collection, as well as specify sampling methods and additional protocols to be used. If the facility intends to return fish and shellfish to a different waterbody than the source waterbody that is used to withdraw cooling water, EPA expects this would be identified as part of § 122.21(r)(6)(i). While EPA does not expect this situation occurs very frequently, the permit application information at (r)(6)(i) along with (r)(4) would provide the Director the information needed to determine whether such a return location is appropriate.  If the site-specific impingement study demonstrates the modified traveling screen (as defined at § 125.92) has been optimized to minimize impingement mortality, the Director may then determine the modified traveling screen is the best technology available for impingement mortality at the site. The Director would then include permit conditions that ensure the technology will perform as demonstrated. If the Director determines that additional data is required to identify permit operating conditions, the Director has the authority to establish such requirements under § 125.95(d). Note that the EPA envisions the study will function to optimize performance, which is not the same as requiring a study merely demonstrating a specific numeric level of performance for impingement mortality has been or can be achieved. For the majority of facilities, EPA expects annual performance using modified traveling screens will exceed the Agency's calculated average annual performance standards for impingement mortality. Several examples of modified traveling screens in EPA's record show annual performance for impingement mortality that is superior to the impingement mortality performance standard (e.g., lower than 10 percent).
      Similarly, facilities choosing to comply with § 125.94(c) by operating a system of technologies (under § 125.94(c)(6)) that will achieve the impingement mortality standard must submit a impingement technology performance optimization study under § 122.21(r)(6)(ii). The site-specific study must provide a description of the technologies, operational measures, or sampling approaches or any combination of them to be used to meet the BTA for impingement mortality. The study must demonstrate that the system of technologies has been optimized to minimize impingement mortality. EPA notes the "system" may consist of one or more technologies already in place, or may be combined with newly installed technologies. Further, the study must include a minimum of two years of biological data collection, as just described.
      The EPA is aware that it is possible for a facility to reduce its rate of impingement, but the same number of impinged fish die. This has the unintended consequence of increasing the percent impingement mortality calculated by the facility. EPA does not intend for such facilities to be penalized for significant reductions in impingement rates obtained through existing technologies and practices in place. Therefore, one difference in the required study for the system of technologies compliance alternative (as compared to the study required for modified traveling screens) is an understanding that operational measures, best management practices, intake location, and other technologies do not always lend themselves to direct impingement mortality measurements or data collection. Thus the study can include flow measurements and monitoring the rate of impingement (as opposed to directly monitoring mortality) as described below.
      If the facility chooses to rely on credit for reductions in the rate of impingement already achieved, the impingement technology performance optimization study must document the reductions to be used as credit. The estimated reductions in impingement must be based on a comparison of the facility to a once-through cooling system with a traveling screen located on the shoreline of the source waterbody. For example, a facility with an offshore intake, an intake canal, or an intake located immediately downstream of a dam in a cold water stream, could demonstrate the population of fish at the intake is lower in these areas, resulting in lower rates of impingement. This provision is intended to allow a facility that conducted or completed a baseline characterization under the Phase II rule to use that same information as part of their demonstration under this rule.
      As discussed in Section VI, EPA has identified flow reduction as one of the best ways to reduce both impingement and entrainment. Today's final rule, as part of the system of technologies compliance option at § 125.94(c)(6), provides the owner or operator of a facility the opportunity to demonstrate flow reduction as part of meeting the IM standards. If the facility chooses flow reduction to reduce impingement, the study at § 122.21(r)(6)(ii) must include two years of intake flows measured daily. This flow information plus the data collected under § 122.21(r)(4)(iv) would be used to document how the flow reduction results in a reduced rate of impingement, as well as documenting the extent to which such reductions are seasonal or intermittent. Many pumps operate at only one speed, which doesn't allow the facility to adjust its intake flow to changing conditions. As a potential application of § 125.94(c)(6), EPA is aware of a manufacturing facility that installed multiple pumps of different sizes, and the operator only utilized those pumps that were necessary to obtain the exact amount of cooling water needed. As another example, variable speed drives offer many facilities an opportunity to reduce their intake flows by as much as 10 percent. Variable speed drives are available at all facilities, and EPA expects variable speed drives will be considered when replacing existing recirculating pumps; however, EPA also acknowledges variable speed drives may not be practical in all cases. Nevertheless, EPA expects variable speed drives will be considered by the Director when establishing entrainment requirements under today's final rule. EPA provided an example of how a facility would receive credit for existing technologies in the NODA (see 77 FR 34322, June 11, 2011). An additional sample calculation that includes flow reduction is provided later in this section.
      The study must identify each of these contributing components, and requires the calculation of the impingement mortality reflecting each component of the system. The impingement technology performance optimization study must demonstrate the system of technologies has been optimized to minimize impingement mortality. In addition, the study must document the percent impingement mortality reflecting optimized operation of the total system of technologies, operational measures, and best management practices at § 122.21(r)(6)(ii)(D). The Director may then determine the system of technologies is the best technology available for impingement reduction at the site. The Director would then include permit conditions that ensure the technology will perform as demonstrated.
6.	§ 122.21(r)(7) Entrainment Performance Studies
      EPA proposed that a facility must submit all previously conducted performance studies, but has revised this provision in the final rule to include only entrainment related studies. Impingement performance studies, where relevant, are already part of the permit application at § 122.21(r)(6). This avoids imposing a requirement on all facilities to submit previous impingement studies that may be unnecessary, and eliminates a burden on the Director to review all such studies, many of which may no longer be relevant. Under today's final rule, the applicant must submit a description of any biological survival studies conducted at the facility and a summary of any conclusions or results, including the following: site-specific studies addressing technology efficacy, through-facility entrainment survival (distinguished for eggs and larvae), entrainment analyses, or studies conducted at other locations including a justification as to why the data are relevant and representative of conditions at the facility. Because of changes in the waterbody over time, studies older than 10 years must include an explanation of why the data are still relevant and representative of conditions at the facility. If the data are no longer relevant and representative, the Director may reject the data. The Director uses such studies when establishing technology-based requirements for entrainment. Permit applicants are not required to conduct new studies simply to fulfill this requirement. This requirement is rather aimed at obtaining results for relevant studies that have already been conducted as part of past permit proceedings or for other purposes even if those studies were not completed or conducted entirely as planned.
7.	§ 122.21(r)(8) Operational Status
      The applicant must submit a description of the operational status of each unit for which a cooling water intake structure provides water for cooling, including the following: descriptions of each individual unit's operating status including age of the unit, capacity utilization for the previous five years (including any unusual or extended outages that significantly affect the facility's reporting of flow, impingement, or other data), and any major upgrades completed in the past 15 years (e.g., boiler or condenser replacement, changes to fuel type, a new production line); a description of completed, approved, or scheduled uprates and NRC (Nuclear Regulatory Commission) relicensing status for nuclear facilities; a description of plans or schedules for decommissioning or replacement of units; and a description of current and future production schedules for manufacturing facilities. The Director will use such information in determining the BTA for entrainment as well as when establishing compliance schedules. For example, where the remaining useful plant life is considerably shorter than the useful life of an entrainment technology or where a facility has a planned retirement within the next permit cycle, this information is useful to support a determination regarding that specific entrainment technology.  This information would also be used under § 125.94(c)(12) to document infrequently used power generating units that operate with a capacity utilization of less than 8 percent averaged over a 24-month block contiguous period and that the Director may therefore determine warrants IM controls less stringent than (c)(1) through (c)(7). With respect to entrainment, the BTA for entrainment is determined by the Director for each site, and energy reliability is one factor the Director may consider when establishing entrainment controls (see § 125.98(f)(3)). EPA expects the information submitted on energy reliability will be considered by the Director when making a BTA determination for entrainment for low CUR units.
8.	§ 122.21(r)(9) Entrainment Characterization Study
      Facilities that withdraw greater than 125 mgd AIF must develop a study that includes a minimum of two years of entrainment data collection. EPA envisions the facility would extend the data collection methods and frequency to develop the source water characterization already required by § 122.21(r)(4) to develop the Entrainment Characterization Study. The study would include complete documentation of the data collection period and frequency of entrainment characterization, and an identification of the organisms sampled to the lowest taxon possible. The data collection must be representative of the entrainment at each intake, and the study must document how the location of the intake in the waterbody and the water column are accounted for. The study must document the intake flows associated with the data collection. Consistent with the permit application requirements requiring biological data collection at § 122.21(r)(4) and (6), EPA requires at least two years of data to sufficiently characterize annual, seasonal, and diel variations in entrainment, including variations related to climate, weather, spawning, feeding, and water column migration. Also consistent with the permit application requirements at § 122.21(r)(4) and (6), facilities may use historical data that are representative of current operation of the facility and conditions at the site with documentation regarding the continued relevance of the data. The study must include analysis of the data to determine total entrainment and entrainment mortality. Documentation in the study must include the method in which latent mortality would be identified, and all methods and quality assurance/quality control procedures for sampling and data analysis would be described. The sampling and data analysis methods must be appropriate for a quantitative survey.
      This information will help the Director determine the site-specific BTA for entrainment. For facilities with no entrainment technologies currently in place, this information characterizes the total potential for entrainment. The information can also be used to demonstrate that technologies and other measures already in place, or site-specific factors such as intake location or design, already reduce entrainment. For example, abundance data might demonstrate lower comparative densities that can significantly lower entrainment rates. The information could also be used by new units under § 125.94(e)(2) to demonstrate that an alternative technology or combination of technologies reduce entrainment at that site to a level commensurate with closed-cycle cooling.
9.	§ 122.21(r)(10) Comprehensive Technical Feasibility and Cost Evaluation Study
      The owner or operator of the facility must submit an engineering study of the technical feasibility and incremental costs of candidate entrainment control technologies. The study must include an evaluation of technical feasibility of closed-cycle cooling and fine-mesh screens with a mesh size of 2 mm or smaller, reuse of water or alternate sources of cooling water, and any other entrainment reduction technologies identified by the applicant or requested by the Director. This study must include a description of all technologies and operational measures considered (which could include alternative designs of closed-cycle recirculating systems such as natural draft cooling towers, hybrid designs, compact or multi-cell arrangements, or the conversion of helper towers to a fully recirculating system); and documentation of factors that make a candidate technology impractical or infeasible for further evaluation. For example, a discussion of land availability might include an evaluation of adjacent land, and acres potentially available because of generating unit retirements, production unit retirements, other buildings and equipment retirements, ponds, coal piles, rail yards, transmission yards, and parking lots; decommissioning of existing units; repurposing of existing land uses; documentation that insufficient acres are available on-site; and evidence of the feasibility of the purchase or other acquisition of property adjacent to the facility.
      For the analysis of water reuse and use of alternate sources of cooling water, the owner or operator must examine the available alternatives for reuse of effluent from within the facility or from other dischargers in the vicinity. The volume of water available need not be for the full intake flow; reuse of water could contribute to a partial reduction in flow at the facility. Additionally, if the facility were to retrofit to a closed-cycle system, the significant reduction in flow may make nearby alternative sources more feasible. This analysis should include an estimate of the cost to build any new infrastructure (e.g., piping, pump houses) and the ongoing operational costs (e.g., pump costs) for the Director's consideration.
      The final rule requires that the cost information be presented as both the facility's compliance costs and the social costs, and in net present value (NPV) terms and the corresponding annual value. Social costs are the costs estimated from the viewpoint of society, rather than individual stakeholders. Social cost represents the total burden imposed on the economy; it is the sum of all opportunity costs incurred. See Chapter 8 of EPA's 2010 Guidelines for Preparing Economic Analyses (DCN 10-3258). Some adjustments to facility compliance costs to produce social costs cause them to be higher than compliance costs, while other cause social costs to be lower. Although a facility makes investment decisions by taking tax consequences into account (after-tax costs), the favorable tax treatment of investments is viewed as a transfer and not a real resource cost, thus pre-tax costs are used in social cost analysis. From society's viewpoint, costs in the future must be amortized and discounted to net present value using a social discount rate, rather than a market cost of capital as reflected in market interest rates. The Office of Management and Budget (OMB) Circular A-4 (DCN 10-3266) instructs agencies to use both 3 percent and 7 percent discount rates. Certain administrative costs are not borne by a facility, but rather by the Director, and are social costs.  Compliance costs include the facility's administrative costs, including costs of permit application, while the social cost adjustment includes the Director's administrative costs. EPA has estimated the Directors' administrative costs in the ICR for the final rule, and describes the methodology for estimating these costs in detail in the EA.  Facilities may adopt a similar approach to including Director's administrative costs in their social cost estimates.  In addition, this component is not expected to be large or to vary significantly across technology options considered.
From a facility's viewpoint, downtime costs include lost net revenue, while from society's viewpoint, if another facility is dispatched or inventory of manufactured goods can be sold, the only social cost of downtime is any increase in marginal costs of production at other facilities dispatched or the cost of holding inventory. Unless a facility can demonstrate that its costs of compliance will result in lower overall supply in the markets in which its products are sold, and that the effect of the lowered supply is an increase in market price and lower quantity of product sold, the facility should not make a social cost adjustment to reflect these larger market impacts.
In addition to the required social costs, the owner or operator may choose to provide facility level compliance costs; however, such costs must be provided and discussed separately from social costs. The cost evaluation component of this study must include engineering cost estimates of all technologies considered above and also discuss and provide documentation of any outages, downtime, energy penalties or other effects on revenue. The cost evaluation should be based on least-cost approaches to implementing each candidate technology while meeting all regulatory and operational requirements of the facility. Depreciation schedules, interest rates, further consideration of remaining useful life of the facility as discussed in § 122.21(r)(8), and any related assumptions must be identified. The owner or operator of the facility must obtain peer review of the Comprehensive Technical Feasibility and Cost Evaluation Study, as described in Section 12.
10.	§ 122.21(r)(11) Benefits Valuation Study
      The owner or operator of the facility must submit a detailed discussion of the benefits of the candidate entrainment reduction technologies evaluated in § 122.21(r)(10) and using data in the Entrainment Characterization Study in § 122.21(r)(9). Each category of benefits should be described narratively, and when possible benefits should be quantified in physical or biological units and monetized using appropriate economic valuation methods.  This includes incremental changes in the impingement mortality and entrainment of individual fish and shellfish for all exposed life stages, estimation of changes in stock and harvest levels of commercial and recreational species, and description of any monetization. This may include monetization using market values, market proxies (e.g., models based on travel costs or other methodologies), benefits transfer and stated preference methods. Benefits that cannot be monetized should be quantified where feasible and discussed qualitatively where not. The study must identify increased or decreased thermal discharges, and must evaluate the potential changes in facility capacity, operations, and reliability due to relaxed permitting constraints related to thermal discharges. The study must also include discussion of recent mitigation efforts already completed and how these have affected fish abundance and ecosystem viability in the intake structure's area of influence. Finally, the study must identify other benefits to the environment and the community, including improvements for mammals, birds, and other organisms and aquatic habitats. The owner or operator of the facility must obtain peer review of the benefits evaluation study, as described in Section 12. EPA expects peer reviewers to have appropriate qualifications (e.g., fisheries biologist, economist) for the subject matter. The Director may consult with EPA and Federal, State and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by the cooling water intake structure(s) to determine which peer review comments must be addressed by the final study. The dollar values in the social benefits analysis should be based on the principle of willingness-to-pay (WTP), which captures monetary benefits by measuring what individuals are willing to forgo in order to enjoy a particular benefit.  While the Director must consider benefit and cost information, the Director will also determine if this information is of sufficient rigor to make a decision on entrainment controls on the basis of this information. For instance, the Director may decide not to rely on benefit-cost information in establishing the entrainment controls when the benefits analysis includes only a qualitative discussion of nonuse benefits.  Willingness-to-pay for nonuse benefits can be measured using benefits transfer or a stated preference survey. However, the rule does not require the Director to require a facility owner or operator to conduct or submit a stated preference survey to assess benefits.
11.	§ 122.21(r)(12) Non-Water Quality Environmental and Other Impacts Assessment
      The owner or operator of the facility must submit a detailed discussion of the changes in non-water quality environmental and other factors attributed to technologies or operational measures, or both, considered. These changes may include, for example, increases or decreases in the following: energy consumption; air pollutant emissions and their health and environmental impacts; noise; safety concerns, such as the potential for plumes, icing, and availability of emergency cooling water; grid reliability, including an estimate of changes to facility capacity, operations, and reliability due to cooling water availability; consumptive water use (including effects of surface water evaporation of thermal discharges); and facility reliability, such as production of steam and impacts to production based on process unit heating or cooling. The owner or operator of the facility must provide for peer review of the Non-Water Quality Environmental and Other Impacts Assessment as described in the following section.
12.	 § 122.21(r)(13) Peer Review
The owner or operator of the facility must provide for peer review of the permit application studies required at § 122.21(r)(10) Comprehensive Technical Feasibility and Cost Evaluation Study, § 122.21(r)(11) Benefits Valuation Study, and § 122.21(r)(12) Non-Water Quality and Other Impacts Assessment. While facilities that withdraw more than 125 mgd AIF must conduct these studies and therefore must provide for peer review, facilities that withdraw equal to or less than 125 mgd AIF may have study requirements including peer review as determined by the Director. In today's final rule, EPA did not adopt separate peer review requirements for the Entrainment Characterization Study at § 122.21(r)(9), because this data would be included in the Comprehensive Technical Feasibility and Cost Evaluation Study, Benefits Valuation Study, and Non-Water Quality and Other Impacts Assessment, and these studies are already subject to peer review. For these reasons, EPA reduced the burden in the final rule by eliminating the peer review requirement for entrainment characterization.
      EPA recognized at proposal that in many cases it is more efficient for permit applicants to combine the required studies into one document and have them reviewed holistically by a single set of peer reviewers. Such an approach is allowed by the final rule, as long as the peer review panel has the background appropriate to conduct a complete and combined review and the Director approves.
The Director may consult with Federal, State and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by the cooling water intake structure(s). Further, the Director may require the owner or operator of the facility to include additional peer reviewers of the studies. EPA expects peer reviewers to have appropriate qualifications (e.g., in the fields of biology, engineering) for the subject matter. An explanation for any significant reviewer comments not accepted must be included in the final study submission. Additional guidance on conducting peer review is available on EPA's Peer Review Program website at www.epa.gov/peerreview.
13.	 § 122.21(r)(14) New Units
      New units at existing facilities must identify the compliance method for the new unit under the permit application requirements at § 122.21(r)(14). Where the facility complies with BTA standards for entrainment at § 125.94(e)(1) by reducing its intake flows commensurate with that of a closed-cycle recirculating system (as defined at § 125.92(c)(1)), the BTA standards for impingement mortality will have been met by § 125.94(c)(1). To comply with the alternative at § 125.94(e)(2), there must be a demonstration that entrainment reductions equivalent to 90 percent or greater of the reductions that could be achieved through compliance with § 125.94(e)(1). In this case, permit application requirement § 122.21(r)(14) requires this demonstration to include the Entrainment Characterization Study at § 122.21(r)(9). The Director may determine additional data and information, including data collection, is necessary to make the demonstration.
D.	When Are Permit Application Studies Due?
      The owner or operator of a facility applying for reissuance of a permit must submit the information required at § 122.21(r) to the Director no later than 180 days before the current permit expires. Those facilities that were subject to the section 316(b) Phase II rule from February 16, 2004 until suspension of that rule on July 9, 2007 were already collecting some information required at § 122.21(r). EPA has structured this rule to take advantage of those data and expects facilities to use them when they satisfy requirements for permit applications.
      In some cases, required permit application information might have been collected, but reports might not have been generated or finalized prior to the rule suspension in 2007. Further, facilities not subject to the Phase II rule (e.g., existing power plants below 50 mgd DIF and all existing manufacturers) might not have collected this information or might not have collected information to identify permit operating conditions. In those cases, facilities would have to collect additional data in order to have two years of biological data collection. EPA expects associated studies and reports will take several additional months to complete. For this reason, EPA has established a provision for permit application submittal for a permit expiring prior to [INSERT date 45 months after the effective date of the final rule], allowing the Director flexibility to delay application requirements based on a showing by the owner or operator that it could not develop the information by the time required for submission of the permit application. The Director would then establish a schedule for submission of the delayed permit application requirements. EPA notes that the Director has the discretion to require additional studies, data collection, or an on-site inspection as part of the permit process.
      Facilities whose permit expires after [INSERT date 45 months after effective date of the final rule] would submit all required materials in § 122.21(r) with their permit renewal application.
      New units at existing facilities must submit the information required at § 122.21(r) to the Director no later than 180 days before commencing operation of the new unit. Because these units are being constructed at a facility that is already operating, the facility will have already submitted many of the permit application materials. The addition of a new unit would require an update of or supplement to permit application materials that have already been submitted. New units take significant time and resources to plan, design, and construct; therefore the final rule does not have a provision to waive permit application requirements based on a showing by the owner or operator that it could not develop the information by the time required for submission of the permit application. For permit renewals subsequent to the first permit issued under today's rule, the new unit would be included in the assessment of the entire facility and would no longer require unique permit application submissions. As discussed previously, the owner or operator is encouraged to submit applications well in advance of the 180 day requirement to avoid delay.
      EPA is aware that some intake structures withdraw from a manmade lake or reservoir that is stocked and managed by a State or Federal natural resources agency. In some cases, the biological characterization of the source water is heavily influenced by the actions of the natural resources agency. Further, the results of biological data collection and studies may be confounded by such actions. Today's final rule at § 125.95(a)(3) gives the Director discretion to waive some or all of the permit application requirements of § 122.21(r) in such circumstances.
      In permit terms subsequent to the first permit issued under the final rule, the facility will re-submit the § 122.21(r) permit application studies, while the rule still includes two years of biological data collection for some facilities. In this manner, the biological characterization over time would be routinely evaluated, i.e., every 5 years under a standard permit cycle. To reduce the burden of such data collection, however, the final rule provides that the owner or operator of a facility may submit a request to the Director to reduce the information required. See 40 CFR 125.95(c). In most cases, EPA anticipates the facility would make any such request prior to conducting its two years of biological data collection. Therefore the request for reduced information requirements must be submitted to the Director at least two years and six months before the expiration of the facility's NPDES permit. The Director may approve such a request if conditions at the facility and in the waterbody remain substantially unchanged since the previous permit application. EPA expects the Director would assess the relevant previously submitted information and determine whether it remains representative of current source water, intake structure, cooling water system, and operating conditions. Accordingly, the Director may accept or reject any part of the request.
E.	How Will the Director Determine the Best Technology Available for Minimizing Adverse Environmental Impacts?
1.	Review and Approval of Permit Application Materials
      Under today's rule, the Director will review all materials submitted by an existing facility with its permit application to determine appropriate NPDES permit conditions and requirements to minimize impingement mortality and entrainment. As stated at 40 CFR 125.98(a), the Director shall not issue a permit before receiving a permit application form and any supplemental information which are completed to his or her satisfaction (see existing Permit Application and Special NPDES Program Requirements at 40 CFR 122.21(e)).
      Facilities with a design intake flow at or below 2 mgd will continue to have permit conditions set on a case-by-case, best professional judgment basis under 40 CFR 125.90(b) and 401.14.  For such facilities, however, the Director may choose to apply some portions of the permit application conditions in today's rule to aid in the BPJ determination.
      The Director is encouraged to expeditiously provide any comments on submitted materials so the facility can make responsive modifications to its information gathering activities. For permit applications subsequent to the first permit issued under today's rule, the Director could indicate whether reduced or different information must be submitted with the permit application. More specific responsibilities are described below:
      a.	If the Director has made a BTA determination for entrainment before the effective date of the rule, and substantially the same information was already submitted and considered by the Director in making that determination, under § 125.98(g) the Director may proceed with the Determination of BTA without requiring the owner to submit the information required in § 122.21(r).
      To clarify further, EPA has included a "transition" provision at § 125.98(g) of today's rule that makes it clear that for any facility that has submitted a permit application before the effective date of the regulation, the Director may select the best approach to development and implementation of the next permit. These provisions are intended to avoid any unnecessary delay in recently submitted permit applications or draft permits. EPA expects that facilities will continue with any data collection requirements, study requirements, and schedules in recently issued permits.
      b.	If the Director establishes a compliance schedule under § 125.94, the Director will establish a schedule that sets requirements as soon as practicable.  In establishing the schedule, the Director is encouraged to consider the extent to which those technologies proposed to be implemented to meet the requirements of § 125.94(d) will be used, or could otherwise affect a facility's choice of technology, to meet the requirements of § 125.94(c). Impacts of thermal discharges, along with other stressors, might be a relevant consideration when assessing benefits of technologies to reduce impacts of cooling water intakes or discharges. The Director is also encouraged to consider energy reliability, transmission capacity, and grid requirements when establishing a schedule for electric power generating facilities. The Director may confer with local and regional electric power agencies and state utility regulators when establishing a schedule for electric power generating facilities (see DCN 10-6860 for information on the approach taken by California). The Director may determine that extenuating circumstances (e.g., lengthy scheduled outages, future production schedules) warrant establishing a different compliance date for any manufacturing facility.
      c.	The Director will review the permit application materials and studies submitted under § 122.21(r) and determine which entrainment controls are appropriate. Factors that must be considered and factors that may be considered in making the determination are provided at § 125.98. The Director must issue a written explanation for the BTA determination and must make this determination, and any other information submitted by third parties, available with the permit for public review. This determination is expected to be issued as part of the permit's statement of basis under 40 CFR 124.7.
2.	Role of Social Cost-Benefit Analysis in Permit Determinations
In deciding what technology to require a permittee to install to address entrainment, the Director may undertake an evaluation of social costs and benefits of implementing such requirements. This analysis will be based on the information submitted by the applicant, supplemented by any information submitted by third parties, and additional information as determined appropriate by the Director. EPA recognizes the resource limitations faced by permitting authorities and does not generally expect that the Director would develop additional information on which to base the evaluation of social benefits and costs, although the Director may opt to do so. This analysis should evaluate benefits and costs from the perspective of society as a whole, rather than costs and benefits accruing to limited parties (e.g., very local populations or the permittee, which presents a limited set of information to the Director).
It is also important to note that the stated preference survey conducted by EPA which was discussed in the June 12, 2012 Notice of Data Availability (77 FR 34927) was designed to estimate respondents' willingness to pay for changes in the health of fish populations and aquatic ecosystems and be statistically representative at large (regional and national) scales; the results were not designed to be statistically representative at the facility level for the assessment of benefits for individual site-level permitting decisions. Today's final rule does not require the Director to require a facility owner or operator to conduct or submit a stated preference survey to assess benefits. Further, the rule does not limit the Director's discretion to consider non-water quality impacts in determining whether further entrainment measures are justified.
A number of cost elements should be accounted for in assessing the social cost of entrainment technology implementation. These are summarized below.
a.	Technology installation cost.
      These peer-reviewed engineering cost estimates of the physical construction of candidate entrainment technologies at the facility are required. These costs would be provided by the applicant under § 122.21(r)(10).
b.	Installation downtime cost.
      Installation of closed-cycle cooling systems will often require facilities to take additional downtime beyond ordinary annual maintenance downtime. An estimate of downtime cost to the facility is required under § 122.21(r)(10). EPA expects a facility will document that portion of downtime that is incremental to any downtime the facility already incurs due to, for example, routine maintenance outages, overhauls, refueling, and periodic replacement of equipment that is at the end of its useful life. Downtime costs to the facility include the value of lost production (e.g., electricity) minus any variable cost savings, as well as any other costs to the facility associated with downtime (shutdown and startup routines, special maintenance protocols, etc.) minus any savings associated with downtime. If they are considered in the social costs analysis, downtime costs must be adjusted to reflect production made up by other facilities or firms, because these temper the real resource costs from society's viewpoint. The cost of downtime is determined on a different basis for social cost. Specifically, the cost of downtime to society is the cost incurred for other facilities and generating units to make up the electricity or manufactured goods that would have otherwise been generated by the facility minus the cost that would have otherwise been incurred by the facility incurring downtime. This difference in cost reflects the additional cost, if any, that society must pay to generate the replacement goods, and may differ substantially from the cost of downtime to the facility.
c.	Energy penalty cost.
      Operation of closed-cycle cooling systems may impose an energy penalty. EPA is using energy penalty to mean only the opportunity costs associated with reduced power production due to derating (turbine backpressure). Energy penalty does not include the costs to operate pumps and fans associated with closed-cycle cooling, which are operation and maintenance costs (and covered below). Under well-established principles in benefit-cost analysis, the cost of the energy penalty to the facility is not the opportunity cost to society. Instead, the cost to society is the cost of generating the electricity, whether incurred by the regulated facility or another facility, that is no longer available for consumption because of the energy penalty. This cost may be incurred by the facility, if it can increase the energy input to, and output from, the generating unit to generate the electricity that is otherwise no longer available for consumption, or by another generating unit if the regulated unit cannot make up the electricity. In either case, the social cost of the energy penalty is the cost of generating the electricity that would otherwise be available for consumption except for the energy penalty. Again, an assessment of these costs would be determined under the § 122.21(r)(10) demonstration.
d.	Operation and maintenance costs for the entrainment technology equipment.
      The cost of energy to operate the entrainment technology for electric generators should appear in the operation and maintenance costs, along with other labor and materials costs. In the same way as described above, the social cost of the energy required to operate entrainment technology is the cost for generating this electricity, as it is otherwise no longer available for end-use consumption. This cost could be incurred by the regulated facility, if it has sufficient capacity to make up the loss, or by another facility, if the regulated facility is not capable of generating the electricity that is no longer available for end-use consumption.
e.	Other administrative expenses.
      This includes additional permitting or reporting expenses, or both. For social costs, the estimate should include the costs to the facility and those expected to be incurred by the Director.
 EPA has estimated the Directors' administrative costs in the ICR for the final rule, as explained in the EA, and facilities may adopt a similar approach to estimating these costs at the permit level.  For assessing social cost, the cost elements outlined above would typically be accounted for on a real cost basis -- that is, pre-tax and without adjusting for future inflation. Costs are tallied over an appropriate time frame, which will typically be the expected useful life of the technology installation or the remaining life of the facility, if less. Costs should be calculated as both net present value and annualized values, using an appropriate social discount rate. The applicant should document the basis for the discount rate chosen, and its methodology and calculations.
f.	Benefits
In assessing the benefits of entrainment technology installation, the Director would assess the value to society from the reductions in impingement mortality and entrainment that would result from installation of a closed-cycle cooling system, fine mesh screens, or other entrainment technologies. All benefits, including monetized, quantified and qualitative benefits, should be considered in this assessment. The benefits assessment would typically look at a range of potential benefit categories, including increased harvest for commercial fisheries, increased use values for recreational fisheries, and nonuse values (existence and bequest values). The latter may be difficult to quantify or monetize. If appropriate data are available from benefits transfer or conducting stated preference studies or other sources that can be applied to the site being evaluated, these should be used to monetize nonuse values. Otherwise, nonuse values should be evaluated quantitatively and/or qualitatively. Quantitative analysis, even without monetization, can be quite useful in evaluating nonuse benefits. For example, quantifying impacts to forage and threatened and endangered species, and other indirect impacts on the aquatic environment, might allow the Director to derive a much more complete understanding of benefits as compared to a qualitative narrative, even if not directly comparable to monetary costs.
Quantifying and valuing the benefit categories listed above involves significant challenges, as described in the BA. For example, assessing the productivity and value of commercial fisheries involves estimating the expected increases in commercial yield of economically valued species over time as a result of reduced impingement mortality and entrainment, and valuing these at market prices minus any incremental production costs associated with the incremental catch. Similarly, assessing recreational use benefits involves estimating the improvements in recreational fishing opportunities resulting from reduced impingement mortality and entrainment, and assigning a value to these improvements. The value assignment is based on the estimated population profile -- in particular, number and proximity to affected water resources -- of recreational users, the availability of alternative competing water resources for recreational usage, and the resulting estimated change in demand for use and value of the affected water resources based on reduced impingement mortality and entrainment and increased recreational fishing performance. EPA acknowledges this could be difficult to do even on a site-specific basis.
Nonuse benefits, which encompass existence and bequest values, include impacts in such areas as population resilience and support, nutrient cycling, natural species assemblages, and ecosystem health and integrity. Nonuse values include improving the survival probability of a threatened or endangered species if present in the vicinity of the facility. Benefits might also need to be assessed beyond the vicinity of the facility's intake if migratory species are affected by the intake. Residual impacts of thermal discharges might also be appropriate to consider in the social benefits calculation.
In much the same way as described for the social cost assessment, social benefits are tallied yearly over the expected performance life of the compliance technology. This tallying should account for the "phase-in" of benefits (e.g., benefits may build up over time as the impingement mortality and entrainment reductions affect commercial fisheries productivity). Benefits are computed on a present value basis and annualized using an appropriate discount rate as described above. The same discount rate should be used for benefits and costs. Often, it is appropriate to calculate benefits and costs using more than one discount rate. For example, for regulatory impact analysis, OMB recommends that Federal agencies use both a 3 percent and a 7 percent rate. However, comparisons between specific benefit and cost numbers should always involve values computed using the same rate.
      The resulting estimates of social cost and benefits must be considered in determinations on whether to require a permittee to install entrainment technology and the specific level of entrainment technology to be installed. The Director may reject otherwise available technologies as the BTA requirements for entrainment controls if the social costs of compliance are not justified by the social benefits, or if there are other adverse impacts that cannot be mitigated that the Director deems to be unacceptable. If all technologies considered have social costs not justified by the social benefits, or have unacceptable adverse impacts that cannot be mitigated, the Director may determine that no additional control requirements are necessary beyond what the facility is already doing. The Director should document the basis for such a determination and include it in the public notice for the draft permit.
3.	Streamlined Process
      The process for complying with the impingement mortality standards is expected to be highly streamlined. As shown in Exhibit VIII-1, EPA expects more than 99 percent of facilities will comply by one of the six compliance options that do not require continual biological compliance monitoring (one of the three compliance alternatives based on pre-approved technologies or one of the three streamlined compliance alternatives). If a facility chooses to comply by operating a modified traveling screen, the Director will review the impingement technology performance optimization study, including the identification of species, duration and structure of the study, and any monitoring requirements.
4.	De Minimus Provision