these limits do not provide a disincentive to facilities from using
finer-meshed screens (i.e., screens with a mesh opening smaller than
3/8'') on their traveling screens. As long as the organisms that are
large enough to have been impinged upon a coarse mesh screen achieve
the required survival rates, the facility would be considered to
meet the impingement mortality requirements.
---------------------------------------------------------------------------

    If the Director has approved a plan for compliance with the
velocity requirements specified in Sec.  125.94(b)(2) and the facility
has documented a maximum design intake flow for the intake equal to or
less than 0.5 feet per second, there are no compliance monitoring
requirements. If the facility cannot document a design intake flow for
the intake equal to or less than 0.5 feet per second under all
conditions, including during minimum ambient source water surface
elevations (based on the Director's judgment using hydrological data)
and maximum head loss across the screens, the permit must require
compliance monitoring for intake velocity to demonstrate the intake
velocity is consistent with the requirements of Sec.  125.94(b)(2). The
frequency of monitoring would be no less than twice per week. In this
circumstance facilities would not be subject to the impingement
mortality monitoring requirements otherwise specified in Sec.
125.96(a)(1) and (2). EPA requests comment on whether it should specify
a minimum frequency for intake velocity monitoring or leave this
determination to the Director.
    EPA notes the proposed rule does not specify the owner or operator
of a facility with a cooling water intake structure that supplies
cooling water exclusively for operation of a wet or dry cooling
tower(s) and that meets the definition of closed-cycle recirculating
system at Sec.  125.92 is deemed to meet this impingement mortality
standard. This is because the largest facilities with closed cycle
cooling still have the potential to withdraw 100 MGD or more in makeup
water. EPA's record shows virtually all facilities with wet cooling
towers have a maximum intake velocity of 0.5 feet per second. EPA
expects a facility that operates a cooling tower would be able to
demonstrate the maximum design intake velocity does exceed 0.5 feet per
second, and the proposed rule already provides that such facilities do
not have any additional monitoring requirements for impingement
mortality.
2. Monitoring Requirements for Entrainment Mortality
Existing Facilities
    Whenever the Director is establishing entrainment control,
monitoring requirements must also be developed. As proposed, the permit
application studies at Sec.  122.21(r) would be required for each
permit renewal. EPA expects the Director would use these studies,
including the Entrainment Characterization Study at Sec.  122.21
(r)(9), as a basis for any additional monitoring requirements for
entrainment mortality.
New Units at Existing Facilities
    Under Sec.  125.96(c), existing facilities with new units would be
required to conduct compliance monitoring to demonstrate flow
reductions consistent with the requirements of Sec.  125.94(d)(1) and
(2), or equivalent I&E reductions. For facilities required to
demonstrate flow reductions consistent with the requirements of Sec.
125.94(d)(1), the frequency of monitoring would be no less than once
per week and would be representative of normal operating conditions.
Flow monitoring would include measuring cooling water withdrawals,
make-up water, and blowdown volume. The Director may require additional
monitoring necessary to demonstrate compliance with both Sec.
125.94(d) as well as any more stringent standards under Sec.
125.94(f).
    To meet requirements under Sec.  125.94(d)(1), EPA expects
facilities would first measure AIF in order to establish a site-
specific baseline prior to installing any new technologies or employing
new operational measures. EPA has defined AIF as the average volume of
water withdrawals on an annual basis over the past three calendar years
(see Sec.  125.92). Facilities would then conduct flow monitoring which
would include measuring cooling water withdrawals, make-up water, and
blowdown volume. The Director may require additional monitoring
necessary to demonstrate compliance with Sec.  125.94(d). These flows
would be used to document the facility has minimized make-up and
blowdown flows.
    To meet requirements under Sec.  125.94(d)(2), facilities would
again measure AIF in order to establish a site-specific baseline prior
to installing any new technologies or employing new operational
measures. The facility would also measure the density of entrainable
organisms (ED) at a proximity to the intake that is
representative of the entrainable organisms present in the absence of
the cooling water intake structure and is representative of annual
average abundance. For the purpose of today's rule, entrainable is
defined as any organism that passes through a \3/8\ inch sieve. As
discussed in Section VI, this would avoid any confusion as to which
organisms would be subject to which standards. Facilities would also
monitor the latent entrainment mortality in front of the intake
structure. Entrainable organisms passing the cooling water intake
structure would be counted as 100 percent entrainment mortality unless
the facility demonstrates to the approval of the Director that the
mortality for each species of concern is less than 100 percent. Samples
would be collected at a minimum to monitor each species of concern or
other species as required by the Director over a 24-hour period.
Samples would be collected no less than biweekly during the primary
period of reproduction, larval recruitment, and peak abundance
identified during the source water

baseline characterization required under Sec.  122.21(r)(4). Samples
would be representative of the cooling water intake when the structure
is in operation. In addition, sufficient samples would be collected to
allow for calculation of annual average entrainment levels. The
sampling would measure the total count of entrainable organisms or
density of organisms, unless the Director approves of a different
metric for such measurements. In addition, facilities would monitor the
AIF for each intake. The AIF would be measured at the same time as the
samples of entrainable organisms are collected.
    The following equation illustrates how to calculate a baseline
level of entrainment (EB):

EB = ED x AIF

    Performance commensurate with a closed-cycle cooling system
(EBTA) can therefore be determined by reducing EB
by the percentage of flow reduced through the use of a closed-cycle
cooling system. For example, a facility withdrawing makeup water from a
freshwater source (as described above, would achieve a reduction of
97.5 percent) would calculate its performance as:

EBTA = (EB) x (100-97.5) / 100

    The resulting value, EBTA, is the required level of
entrainment performance (as measured by entrainment mortality). The
facility could implement any combination of flow reduction,
technologies, and operational measures to meet the required level of
entrainment performance. For example, a facility withdraws 200 MGD AIF
from a freshwater river. The annual average entrainment density in the
proximity of the intake structure is 6,400 organisms per 100 cubic
meters withdrawn.

EB = ED x AIF

6,400 organisms/100m3 x (100m3/26,417 gallons) x
200,000,000 gallons per day = 48 million organisms per day

    The maximum entrainment mortality for a closed-cycle cooling system
is thus

EBTA = (EB) x (100-97.5) / 100 = (48 x
106 organisms per day) x (100-97.5) / 100 = 1.2 x
106 organisms.

    The minimum required level of performance for demonstrating
entrainment mortality at a comparable level (EC) to a
closed-cycle cooling system is the level corresponding to 90 percent
\107\ of the reduction that a facility with a closed-cycle cooling
system could achieve:
---------------------------------------------------------------------------

    \107\ Sec.  125.86 specifies ``reduced both impingement
mortality and entrainment of all life stages of fish and shellfish
to 90 percent or greater of the reduction that would be achieved
through Sec.  125.84(b)(1) and (2).''

EC = (EB) x (100 - (97.5 x .9)) / 100 = (48 x
106 organisms per day) x (100 - (97.5 x .9)) / 100 = 5.9 x
---------------------------------------------------------------------------
106 organisms.

    The Director may require additional monitoring necessary to
demonstrate compliance with both Sec.  125.94(d) as well as any more
stringent standards under Sec.  125.94(f).
    EPA requests comment on all aspects of these monitoring
requirements. EPA specifically requests comment on whether it should
specify minimum monitoring frequencies or leave this to the
determination of the Director.

Visual or Remote Inspections--All Existing facilities
    All facilities would either conduct visual inspections or employ
remote monitoring devices during the period the cooling water intake
structure is in operation. The facility would conduct such inspections
at least weekly to ensure that any technologies installed to comply
with Sec.  125.94 are maintained and operated to ensure that they will
continue to function as designed. EPA is aware that for some
facilities, this requirement could pose a feasibility challenge (i.e.,
ice cover during the winter season, inability of divers to see through
more than a few inches of water, or certain intakes located in deep
water during rough weather). The proposed rule therefore authorizes the
Director to establish alternative procedures during periods of
inclement weather. EPA solicits comment and data on this provision. EPA
specifically requests comment on whether it should establish minimum
frequencies for inspections, or leave this to the determination of the
Director.

G. What reports would I be required to submit?

1. Status Reports
    Facilities that establish a compliance schedule (under Sec.
125.93) would submit (at a minimum) quarterly status reports as to the
progress of the facility towards meeting the terms of the compliance
schedule and the applicable limits. These reports may include updates
on biological monitoring, technology testing results, construction
schedules, or other appropriate topics.
2. Monitoring Reports
    As described above, facilities would have ongoing impingement
mortality monitoring requirements; some facilities would also have
entrainment mortality monitoring requirements. The proposed monitoring
activities are similar to monitoring required for other effluent
discharges already included in NPDES permits. Facilities would be
required to include impingement mortality monitoring reports with their
Discharge Monitoring Reports (DMRs) (or equivalent) and their permit
annual report to the Director. As described at Sec.  125.97, those
reports would be required to include:
     The compliance measurement location;
     Identification of species of concern;
     Counts and percentage mortality of organisms sampled, as
well as the average for all measurements taken during the preceding 12-
month period (i.e., a 12-month ``rolling'' average);
     Time period for evaluating latent mortality effects;
     Intake velocity measurements, as appropriate, to determine
compliance with the design intake velocity requirement of 0.5 fps or
less; and
     Any other monitoring requirements specified in the permit.
    The Director would evaluate these reports for compliance with
monthly and annual impingement mortality limits, velocity limits, and
other permit requirements where appropriate.
    For facilities that require entrainment mortality controls, the
Director would require ongoing entrainment mortality flow monitoring.
Facilities would be required to include entrainment mortality flow
monitoring reports with their DMRs (or equivalent) and their annual
report to the Director. Those reports would be required to include:
     The compliance measurement location;
     A description of the flow monitoring procedure;
     Documentation of flow reductions; and
     Any other monitoring requirements specified in the permit.

The Director would evaluate these reports for compliance with monthly
entrainment mortality limits, flow reductions and flow monitoring, and
permit requirements as required.
3. Annual Certifications
    Today's proposal would require a facility to submit an annual
certification statement signed by the responsible corporate officer.
This statement would indicate each technology is being maintained and
operated as set forth in its permit, or a justification to allow
modification of the practices listed in the facility's most recent
annual certification. If the Director has approved impingement
mortality or

entrainment mortality compliance alternatives, the statement would
specify the information submitted in the most recent annual
certification is still valid and appropriate, or provide a
justification to allow modification of the practices listed in the most
recent annual certification. For example, the statement would include
data and information documenting compliance with the requirement in
Sec.  124.94(d)(1) that flow commensurate with a closed-cycle
recirculating system is met. If the Director has approved the IM
maximum intake velocity compliance alternative and the facility cannot
document a design intake velocity for the intake equal to or less than
0.5 feet per second, the statement would include data and information
documenting compliance with the maximum allowable intake velocity.
    If the information contained in the previous year's annual
certification is still applicable, the statement would simply state as
such and, along with any applicable data submission requirements
specified in this section, would constitute the annual certification.
However, if the facility has substantially modified its operation of
any unit that impacts cooling water withdrawals or operation of cooling
water intake structures, it would submit revisions to the information
required in the permit application.

H. What records would I be required to keep?

    As described at Sec.  125.97(d), facilities would be required to
keep all application, status, monitoring, and annual reports and
related supporting information and materials for a minimum of 5 years,
but facilities may wish to keep records for a longer period to maintain
a complete regulatory history of the facility. For example, existing
source water biological studies submitted with a facility's permit
application may contain data that has been collected within the past 10
years. The proposed rule requires that records be kept from the
preceding permit term when the Director has approved a request for
reduced information collection in the permit application. The Director
may establish additional record keeping requirements in the permit,
such as additional records documenting the EM determination and related
compliance monitoring or data collection.

I. Are there other Federal statutes that could be incorporated into a
facility's permit?

    EPA's NPDES permitting regulations at Sec.  122.49 contain a list
of Federal laws that might apply to Federally-issued NPDES permits.
These include the Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq.;
the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.;
the Endangered Species Act, 16 U.S.C. 1531 et seq.; the Coastal Zone
Management Act, 16 U.S.C. 1451 et seq.; and the National Environmental
Policy Act, 42 U.S.C. 4321 et seq. See Sec.  122.49 for a brief
description of each of these laws. In addition, the provisions of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq., relating to essential fish habitat might be relevant.
Nothing in this proposal would authorize activities that are not in
compliance with these or other applicable Federal laws (e.g., Marine
Mammal Protection Act, 16 U.S.C. 1361 et seq., and Migratory Bird
Treaty Act, 16 U.S.C. 703 et seq.).

J. What is the Director's role under today's proposal?

    Under today's proposed rule, the Director would need to review all
materials submitted by an existing facility with its permit application
each permit term to determine appropriate NPDES permit requirements for
impingement mortality, entrainment mortality for new units at existing
facilities, and site-specific entrainment mortality, as necessary. The
Director is encouraged to provide any comments expeditiously on
submitted materials so the facility can make responsive modifications
to its information gathering activities. More specific responsibilities
are described below:
    (1) The Director would review materials to determine compliance
with the applicable requirements. The proposed rule also provides some
discretion to the Director to waive the submittal requirements under
certain conditions. First, if the circumstances at the facility have
not changed after a five year permit cycle, the Director can reduce the
submission requirements. Second, if the Director has made a BTA
determination prior to the effective date of the rule, and
substantially the same information was already submitted and considered
by the Director in making that determination, the Director can reduce
the submission requirements. To clarify further, EPA has included a
``transition'' provision in the submission requirements of today's
proposed rule that makes it clear that for any facility that has
submitted a permit application before the effective date of the
regulation, the Director can select the best approach to permit
development and implementation. These provisions are further intended
to avoid any unnecessary delay in recently issued permits. EPA expects
facilities would continue with any monitoring requirements, study
requirements, and compliance schedules in recently issued permits.
    (2) If the Director establishes an alternate schedule under Sec.
125.93, the Director would establish a schedule that is as expeditious
as possible, but does not extend beyond the dates specified in Sec.
125.93. 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 Sec.  125.95(c) and/or (d) will
be used, or may otherwise affect a facility's choice of
technology(ies), to meet the requirements of Sec.  125.95(b). Impacts
of thermal discharges, along with other stressors, may be a relevant
consideration when assessing benefits of technologies to reduce impacts
of cooling water intakes or discharges. See EEA for more information.
The Director is also encouraged to consider energy reliability and grid
requirements when establishing a schedule for electric power generating
facilities. The Director may consult with local and regional electric
power agencies when establishing a schedule for electric power
generating facilities. 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.
    (3) The Director would review and approve the species of fish and
shellfish identified as species of concern.
    (4) The Director would review and approve the site-specific
impingement mortality plan including the duration and frequency of any
monitoring beyond the minimum specified by the rule, the monitoring
location, the organisms to be monitored, and the method in which
naturally moribund organisms would be identified and taken into
account. EPA solicits comment on whether the Director should review,
but not approve, the identified plans.
    (5) The Director would review the permit application materials and
studies submitted under Sec.  122.21(r) on a case-by-case basis and
determine which entrainment requirements are necessary.
    (6) The Director would review and approve the site-specific
entrainment mortality sampling plan for new units at existing
facilities (other than those employing closed cycle cooling) including
the duration and frequency of monitoring, the monitoring location, the
organisms to be monitored, and the method in which latent mortality
would

be identified. EPA solicits comment on whether the Director should
review, but not formally approve, the identified plans.
    (7) The Director would issue a written explanation for the BTA
determination and make this determination, and any other information
submitted by third parties, available along with the draft permit for
public review. This determination is discussed in more detail in
Section VI above. In addition, the following discussion guides the
Director when considering cost-benefit analysis for permit
determinations.
Social Cost-Benefit Analysis for Permit Determinations
    In deciding whether and which technology to require a permittee to
install to address entrainment mortality, the Director may undertake an
evaluation of social costs and benefits of implementing such
requirements. This analysis would be based on the information submitted
by the applicant, supplemented by 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, though the Director may opt to do so. This
analysis should evaluate benefits and costs from the perspective of
society as a whole.
    A number of cost elements should be accounted for in assessing the
social cost of entrainment technology implementation. These are
summarized below.
     Technology installation cost. These peer reviewed
engineering cost estimates of the physical construction of candidate
entrainment technologies at the facility are required in section
122.21(r)(10). These costs would be provided by the applicant under
122.21(r)(10).
     Installation downtime cost. Installation of closed cycle
cooling systems will often require generating 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). Downtime costs include the value of lost production
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.
     Energy penalty cost. Operation of closed cycle cooling
systems generally imposes an energy penalty, which means additional
energy input is required to generate the same quantity of electricity
otherwise available for sale to end-use consumers. Again, an assessment
of these costs to the facility would be determined under the section
122.21(r)(10) demonstration. The appropriate cost measure is the cost
of additional production costs to the facility, if the permittee's
facility has sufficient capacity to make up the lost electricity
production, or the net revenue loss to the permittee, if the
permittee's facility cannot make up the lost electricity production.
     Operation and maintenance costs for the entrainment
technology equipment. The cost of energy to operate the entrainment
technology for electric generators would be accounted for in the
assessment of energy penalty costs and should not reappear in the O&M
costs. These cost which would be estimated as part of the 122.21(r)(10)
assessment would enter the social cost framework unchanged.
     Other administrative expenses--e.g., additional permitting
and/or reporting expenses. Being a social cost concept the estimate
must include not only the costs to the facility but those expected to
be incurred by the permitting authority as well. Permitting costs would
generally be lower if a facility opts to install a closed cycle cooling
system without going through the BTA site-specific determination, as
this allows the facility to minimize the amount of permit application
information submitted.
    For the assessment of social cost, the cost elements outlined above
would typically be accounted for on a real cost basis--that is, pre-tax
and excluding the effects of inflation. Costs are tallied over an
appropriate timeframe, 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 discount rate. The applicant
should document the basis for the discount rate chosen.
    In assessing the benefits of entrainment technology installation,
the Director would assess the value to society from the reductions in
I&E mortality that would result from installation of a closed cycle
cooling system or alternative entrainment technology. All benefits,
including quantified and non-quantified benefits, should be considered
in this assessment. The benefits assessment would typically look at a
range of potential benefit mechanisms, including increased harvest for
commercial fisheries, increased use values for recreational fisheries,
and non-use values (existence and bequest values). The latter may be
difficult to quantify and/or monetize. If appropriate data are
available from stated preference studies or other sources that can be
applied to the site being evaluated, these should be used to monetize
non-use values. Otherwise, non-use values should be evaluated
qualitatively. Quantitative analysis, even in the absence of
monetization, can be quite useful in evaluating non-use benefits. For
example, quantifying impacts to forage and T&E species, and other
indirect impacts on the aquatic environment, may allow the permitting
authority to derive a more complete understanding of benefits.
    Quantifying and valuing the benefit categories listed above
involves significant challenges, as described in the Environmental and
Economic Benefits Analysis report. 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 I&E mortality, and valuing these at
market prices minus any incremental production costs associated with
the incremental catch. Similarly, the assessment of recreational use
benefits involves estimating the improvements in recreational fishing
opportunities resulting from reduced I&E mortality, and assigning a
value to these improvements. The assignment of value 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 I&E mortality and increased
recreational fishing performance. EPA acknowledges this may be hard to
do on a site-specific basis, and solicits comment on tools EPA could
consider producing to aid this process.
    Non-use 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. These may be assessed on the basis of benefits transfer
analysis (using findings from prior analyses involving a similar study
context) or by performance of a peer reviewed stated preference survey
to assess the value assigned for the environmental improvements
resulting from the technology installation. Non-

use values include improving the survival probability of a threatened
or endangered species if present in the vicinity of the facility.
Benefits may 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 may 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 on a year-by-year basis over the expected
performance life of the compliance technology. If possible, this
tallying should account for the ``phase-in'' of benefits (e.g.,
benefits may build up over time as the I&E mortality reductions affect
commercial fisheries productivity) and ``phase-down'' of benefits at
the end of the technology equipment's performance life (e.g., the I&E
mortality reduction benefits may continue beyond the performance life
of the compliance technology). 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,
the Office of Management and Budget recommends that costs and benefits
be annualized using both a 7% and a 3% 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 taken
into account in reaching 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 an
otherwise available technology as BTA standards for entrainment
mortality if the social costs of compliance are not justified by the
social benefits, or if there are 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 this determination and
include it in the public notice for the draft permit. (8) The Director
would review I&E mortality monitoring reports. EPA is shifting towards
an electronic DMR system, and many of the IM and EM standards could be
incorporated into the DMR itself, rather than requiring a separate
report. EPA solicits comment on whether such reports should accompany
monthly Discharge Monitoring Reports (DMRs). EPA expects the more
detailed monitoring information would be submitted in annual reports
and as part of the facility's subsequent permit application submission.

X. Related Acts of Congress, Executive Orders, and Agency Initiatives

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in
response to OMB recommendations have been documented in the docket for
this action.
    In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
Chapter 12 of the EA report. A copy of the analysis is available in the
docket for this action and the analysis is briefly summarized here.
    Exhibit X-1 (drawn from Table 12-2 of the EA) provides the results
of the benefit-cost analysis. Placeholders for nonmonetized benefits
are represented by B1, B2, B3, and
B4 which are expected to be option specific in value. EPA's
analysis using a habitat equivalence approach (see EEBA, Chapter 9)
suggests that B1, B2, B3, and
B4 have the potential to be significant, though EPA does not
have the same confidence in those estimates as in the monetized
estimates, and is therefore using placeholders.

   Exhibit X-1--Total Annualized Benefits and Costs of the Regulatory
                                 Options
                         [Millions; 2009 $] \a\
------------------------------------------------------------------------
                                    Social costs
              Option                     \b\              Benefits
------------------------------------------------------------------------
1. IM Everywhere.................            $384  $18 + B1
2. IM Everywhere, EM for                    4,463  121 + B2
 Facilities with DIF > 125 MGD.
3. I&E Mortality Everywhere......           4,632  126 + B3
4. IM for Facilities with DIF >               327  17 + B4
 50 MGD.
------------------------------------------------------------------------
a All costs and benefits were annualized over 50 years and discounted
  using 3 percent rate.
b Total Social Costs include compliance costs to facilities and
  government administrative costs. Costs and benefits for Options 1, 2,
  and 4 do not include costs or benefits associated site-specific BTA
  determinations. In section VI.I, EPA presents several scenarios to
  illustrate potential costs associated with these determinations for
  Options 1 and 4. EPA believes the costs and benefits of these
  determinations could be substantial, and could be significantly larger
  than the costs and benefits shown for Options 1 and 4. For Option 2,
  only facilities with AIF < 125 MGD would be subject to site-specific
  BTA and additional costs and benefits for these facilities are likely
  to be small relative to the costs and benefits already estimated for
  this option.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2060.05.
    Compliance with the applicable information collection requirements
imposed under a final rule based on this proposal would be mandatory.
Today's proposed rule would require several distinct types of
information collection as part of the NPDES permit application. In
general, the information will be used to identify how a 316(b) existing
facility would meet the impingement mortality and entrainment
requirements. Today's rule would also require other reporting and
recordkeeping requirements to demonstrate and document compliance with
the proposed requirements.

    The OMB previously approved information collection requirements
contained in the 2004 Phase II final rule and assigned OMB control
number 2040-0257. The 2004 Phase II final rule required applicable
facilities to perform several data-gathering activities as part of the
permit renewal application process. It also required certain monitoring
and reporting after permit issuance. The previously-approved
information collection requirements included one-time burden associated
with the initial permit application and those activities associated
with monitoring and reporting once the permit was issued. The total
average annual burden associated with the 2004 Phase II rule
information collection requirements for the entire Phase II industry
was estimated at 1,700,392 hours. The annual average reporting and
record keeping burden associated with the 2004 Final Phase II rule for
a 316(b) existing facility was estimated to be 5,428 hours per
respondent (i.e., total annual average burden of 1,595,786 hours
divided by an anticipated 294 respondents). The Director's reporting
and record keeping burden for the review, oversight, and administration
of the 2004 final Phase II rule was estimated to average 2,615 hours
per respondent (i.e., a total annual average burden of 104,606 hours
divided by an anticipated 40 States).
    Today's proposal streamlines some aspects of the permit application
and implementation process and would impose reduced information
collection requirements in comparison to the 2004 Phase II rule (for
existing power plants with DIF > 50 MGD). For example, under the 2004
Phase II rule, facilities would have been required to submit a
Technology Implementation and Operations Plan, which is not required as
part of today's proposed rule. Like the 2004 Phase II rule, today's
proposal would require facilities to collect and report impingement
mortality compliance monitoring data. Under certain alternatives
provided in today's proposed rule, design documentation and flow data
would be provided instead of biologically monitoring data. The
information reporting requirements under today's proposed compliance
alternatives, described at Sec.  125.95, include some additional
requirements such as submission of an initial certification statement
and annual certification statements thereafter, submission of
monitoring reports along with DMRs, and submission of annual reports,
as well as maintenance of various records.
    Facilities that were not part of Phase II would have additional
reporting and recordkeeping requirements relative to the current BPJ
permitting approach. EPA is currently preparing a revised ICR that will
estimate the total burden of the proposed rule using the Phase II
burden estimates as a starting point. These will be adjusted to account
for differences in what is required under the proposed rule, as well as
the extension of new requirements to Phase III facilities. EPA will
announce in the Federal Register when this information has been placed
in the docket for today's rule and will allow a separate 60-day comment
period on the proposed paperwork requirements, including the revised
burden estimates.
    Burden is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OW-
2008-0667. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this proposed rule for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after April 20, 2011, a comment to OMB is best
assured of having its full effect if OMB receives it by May 20, 2011.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
1. Definition of Small Entities and Estimation of the Number of Small
Entities Subject to Today's Proposed Regulation
    For EPA's assessment of the impact of today's proposed rule on
small entities, small entity is defined as either a: (1) A small
business as defined by the Small Business Administration's (SBA)
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district or
special district with a population of less than 50,000; or (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
Federal or State entities owning in-scope facilities are not small
entities.
a. Electric Generators
    For assessing the impacts of today's rule on small Electric
Generator entities, small entity is defined in accordance with SBA
criteria for identifying small, non-government entities in the electric
power industry, as follows:
     For non-government entities with electric power generation
as a primary business, small entities are those with total annual
electric output less than 4 million MWh; small governments are those
serving a population of less than 50,000.
     For entities with a primary business other than electric
power generation, the relevant size criteria are based on revenue or
number of employees by NAICS sector (see Exhibit X-2).

   Exhibit X-2--NAICS Codes and SBA Entity Size Standards for In-Scope
  Electric Generators With a Primary Business Other Than Electric Power
                            Generation \108\
------------------------------------------------------------------------
                                                            SBA size
          NAICS code               NAICS description        standard
------------------------------------------------------------------------
221112........................  Fossil Fuel Electric    4,000,000 MWh.
                                 Power Generation.
221113........................  Nuclear Electric Power  4,000,000 MWh.
                                 Generation.
221119........................  Other Electric Power    4,000,000 MWh.
                                 Generation.
221122........................  Electric Power          4,000,000 MWh.
                                 Distribution.

221210........................  Natural Gas             500 Employees.
                                 Distribution.
238210........................  Electrical Contractors  $14,000,000
                                                         Revenue.
331111........................  Iron and Steel Mills..  1,000 Employees.
331315........................  Aluminum Sheet, Plate,  750 Employees.
                                 and Foil
                                 Manufacturing.
523910........................  Miscellaneous           $7,000,000
                                 Intermediation.         Revenue.
486210........................  Pipeline                $7,000,000
                                 Transportation of       Revenue.
                                 Natural Gas.
523920........................  Portfolio Management..  $7,000,000
                                                         Revenue.
523930........................  Investment Advice.....  $7,000,000
                                                         Revenue.
524126........................  Direct Property and     1,500 Employees.
                                 Casualty Insurance
                                 Carriers.
525990........................  Other Financial         $7,000,000
                                 Vehicles.               Revenue.
525910........................  Open-End Investment     $7,000,000
                                 Funds.                  Revenue.
541990........................  All Other               $7,000,000
                                 Professional,           Revenue.
                                 Scientific, and
                                 Technical Services.
551112........................  Offices of Other        $7,000,000
                                 Holding Companies.      Revenue.
561499........................  All Other Business      $7,000,000
                                 Support Services.       Revenue.
562212........................  Solid Waste Landfill..  $12,500,000
                                                         Revenue.
562219........................  Other Nonhazardous      $12,500,000
                                 Waste Treatment and     Revenue.
                                 Disposal.
562920........................  Materials Recovery      $12,500,000
                                 Facilities.             Revenue.
611310........................  Colleges,               $7,000,000
                                 Universities, and       Revenue.
                                 Professional Schools.
------------------------------------------------------------------------

    For this analysis, EPA identified the domestic parent entity of
each electric generating facility subject to today's proposed rule (for
a discussion on determination of parent entities of in-scope Electric
Generators see Chapter 5 of the EA report). To determine whether these
entities are small entities based on the size criteria outlined above,
EPA compared the relevant measure for the identified parent entities to
the appropriate SBA size criterion.
---------------------------------------------------------------------------

    \108\ Certain in-scope facilities are owned by entities whose
primary business is not electric power generation.
---------------------------------------------------------------------------

    From this analysis, EPA estimates that 33 small entities (out of a
total of 143 entities that own in-scope Electric Generators) own
Electric Generators that would be subject to today's proposed rule,
representing 1.6 percent of total estimated small entities in the
electric power industry (see Exhibit X-3). Municipalities make up the
largest number of small entities owning in-scope facilities (17 out of
33); these small entities represent 1.8 percent of all small entities
in that category. Small entities owning in-scope facilities as a
percentage of total small entities range, by ownership category, from
0.9 percent for rural electric cooperatives and other political
subdivisions, to 10.9 percent for the investor-owned utilities.\109\
---------------------------------------------------------------------------

    \109\ The entity counts include entities owning known 316(b)
Electric Generators and are not weighted estimates.

   Exhibit X-3--Number of Small Entities Owning In-Scope Electric Generating Facilities as a Percentage of the
                        Total Number of Small Entities in the Industry, by Ownership Type
----------------------------------------------------------------------------------------------------------------
                                                                              Small entities owning in-scope
                                                                                facilities
                                                                         ---------------------------------------
                                                        Total number of                         Small in-scope
                    Ownership type                     small entities in    Number of  in-       entities as
                                                        the industry \a\    scope entities    percentage of all
                                                                                \b\          in-scope entities
                                                                                in the industry
----------------------------------------------------------------------------------------------------------------
Investor-Owned Utilities.............................                 18                  2                 10.9
Nonutilities.........................................                130                  5                  3.8
Rural Electric Cooperatives..........................                848                  8                  0.9
Municipality.........................................                968                 17                  1.8
Other Political Subdivision..........................                113                  1                  0.9
Federal..............................................                  0                  0                  0
State................................................                  0                  0                  0
All Entity Types.....................................              2,078                 33                  1.6
----------------------------------------------------------------------------------------------------------------
\a\ State and Federal entities are considered large.
\b\ The entity counts include entities owning known 316(b) Electric Generators and are not weighted estimates.

b. Manufacturers
    For purposes of assessing the impacts of today's rule on small
Manufacturers, small entity is defined in accordance with SBA criteria.
Exhibit X-4 lists the SBA size threshold guidelines for entities owning
Manufacturers facilities.

   Exhibit X-4--NAICS Codes and SBA Entity Size Standards for In-Scope
                    Entities in Manufacturers Sectors
------------------------------------------------------------------------
                                                            SBA Size
          NAICS Code               NAICS Description        standard
------------------------------------------------------------------------
111930........................  Sugarcane Farming.....  $750,000 in
                                                         Revenue
113110........................  Timber Tract            $7,000,000 in
                                 Operations.             Revenue
211111........................  Crude Petroleum and     500 Employees
                                 Natural Gas
                                 Extraction.
212210........................  Iron Ore Mining.......  500 Employees
212391........................  Potash, Soda, and       500 Employees
                                 Borate Mineral Mining.
221119........................  Other Electric Power    4,000,000 MWh of
                                 Generation.             Electric
                                                         Generation
311221........................  Wet Corn Milling......  750 Employees
311311........................  Sugarcane Mills.......  500 Employees
311312........................  Cane Sugar Refining...  750 Employees
311313........................  Beet Sugar              750 Employees
                                 Manufacturing.
311942........................  Spice and Extract       500 Employees
                                 Manufacturing.
313210........................  Broadwoven Fabric       1,000 Employees
                                 Mills.
321113........................  Sawmills..............  500 Employees
322121........................  Paper (except           750 Employees
                                 Newsprint) Mills.
322122........................  Newsprint Mills.......  750 Employees
322130........................  Paperboard Mills......  750 Employees
322211........................  Corrugated and Solid    500 Employees
                                 Fiber Box
                                 Manufacturing.
322222........................  Coated and Laminated    500 Employees
                                 Paper Manufacturing.
322291........................  Sanitary Paper Product  500 Employees
                                 Manufacturing.
324110........................  Petroleum Refineries..  1,500 Employees
324191........................  Petroleum Lubricating   500 Employees
                                 Oil and Grease
                                 Manufacturing.
325120........................  Industrial Gas          1,000 Employees
                                 Manufacturing.
325181........................  Alkalis and Chlorine    1,000 Employees
                                 Manufacturing.
325188........................  All Other Basic         1,000 Employees
                                 Inorganic Chemical
                                 Manufacturing.
325199........................  All Other Basic         1,000 Employees
                                 Organic Chemical
                                 Manufacturing.
325211........................  Plastics Material and   750 Employees
                                 Resin Manufacturing.
325311........................  Nitrogenous Fertilizer  1,000 Employees
                                 Manufacturing.
325320........................  Pesticide and Other     500 Employees
                                 Agricultural Chemical
                                 Manufacturing.
325412........................  Pharmaceutical          750 Employees
                                 Preparation
                                 Manufacturing.
325510........................  Paint and Coating       500 Employees
                                 Manufacturing.
325992........................  Photographic Film,      500 Employees
                                 Paper, Plate and
                                 Chemical
                                 Manufacturing.
325998........................  All Other               500 Employees
                                 Miscellaneous
                                 Chemical Product and
                                 Preparation
                                 Manufacturing.
331111........................  Iron and Steel Mills..  1,000 Employees
331112........................  Electrometallurgical    750 Employees
                                 Ferroalloy Product
                                 Manufacturing.
331210........................  Iron and Steel Pipe     1,000 Employees
                                 and Tube
                                 Manufacturing from
                                 Purchased Steel.
331221........................  Rolled Steel Shape      1,000 Employees
                                 Manufacturing.
331222........................  Steel Wire Drawing....  1,000 Employees
331312........................  Primary Aluminum        1,000 Employees
                                 Production.
331315........................  Aluminum Sheet, Plate   750 Employees
                                 and Foil
                                 Manufacturing.
332312........................  Fabricated Structural   500 Employees
                                 Metal Manufacturing.
337910........................  Mattress Manufacturing  500 Employees
339999........................  All Other               500 Employees
                                 Miscellaneous
                                 Manufacturing.
423310........................  Lumber, Plywood,        100 Employees
                                 Millwork, and Wood
                                 Panel Merchant
                                 Wholesalers.
423930........................  Recyclable Material     100 Employees
                                 Merchant Wholesalers.
424510........................  Grain and Field Bean    100 Employees
                                 Merchant Wholesalers.
424690........................  Other Chemical and      100 Employees
                                 Allied Products
                                 Merchant Wholesalers.
424710........................  Petroleum Bulk          100 Employees
                                 Stations and
                                 Terminals.
447190........................  Other Gasoline          $9,000,000 in
                                 Stations.               Revenue
522220........................  Sales Financing.......  $7,000,000 in
                                                         Revenue
523910........................  Miscellaneous           $7,000,000 in
                                 Intermediation.         Revenue
523930........................  Investment Advice.....  $7,000,000 in
                                                         Revenue
524126........................  Direct Property and     1,500 Employees
                                 Casualty Insurance
                                 Carriers.
525990........................  Other Financial         $7,000,000 in
                                 Vehicles.               Revenue
531110........................  Lessors of Residential  $7,000,000 in
                                 Buildings and           Revenue
                                 Dwellings.
551112........................  Offices of Other        $7,000,000 in
                                 Holding Companies.      Revenue
561110........................  Office Administrative   $7,000,000 in
                                 Services.               Revenue
------------------------------------------------------------------------

    To determine entity size, EPA started with information reported in
the Detailed Industry Questionnaire and Industry Screener
Questionnaire, and updated information on each owner's primary NAICS,
current revenue, and employment size data from SEC filings, Dun &
Bradstreet (D&B, 2009), and corporate Web sites. For details of this
process, see Chapter 4 of the EA report. EPA compared the relevant
measure for the identified parent entities to the appropriate SBA size
criterion.
    Because EPA undertook this assessment for the sample of
Manufacturers facilities and related owning entities responding to the
previous 316(b) questionnaires, it was necessary to estimate the number
of owning entities and to assess whether these entities are small,
based on application of sample weights. Because the sample weights are
based on facilities instead of entities, the facility-based weights do
not provide statistically precise estimates of the numbers of owning
entities. As a result, EPA applied alternative sample-weighting
assumptions that yield lower and upper bound estimates of the

numbers of small entities in the Primary Manufacturing Industries
owning in-scope Manufacturers facilities, as reported in Exhibit X-5.
Because the analysis of facilities in Other Industries is not based on
a statistically valid sample, EPA could not estimate the number of
entities in Other Industries that would be subject to the requirements
of the regulatory analysis options, or the percentage that are small
entities. However, based on a review of nationwide water withdrawals
and cooling water use, the Census of Manufacturers, and comments
received on the Phase III proposed rule, EPA does not expect a
significant number of additional small entities would be subject to
today's proposed regulatory requirements.

Exhibit X-5--Number and Percentage of Small Entities in Primary Manufacturing Industries Subject to the Proposed
                                             Regulation, by Industry
----------------------------------------------------------------------------------------------------------------
                                                  Lower bound estimate of number  Upper bound estimate of number
                                                            of entities                     of entities
                                   Total sector  ---------------------------------------------------------------
             Sector               small entities                   Percentage of                   Percentage of
                                        \a\          Estimated    small entities     Estimated    small entities
                                                   316(b) small     subject to     316(b) small     subject to
                                                     entities       regulation       entities       regulation
----------------------------------------------------------------------------------------------------------------
Paper...........................             218               9             4.1              29            13.2
Chemicals.......................           2,506               4             0.2              18             0.7
Petroleum.......................             188               4             2.1               4             2.2
Steel...........................           1,149               3             0.3               8             0.7
Aluminum........................             227               2             0.9               5             2.0
Food............................          23,546               1             0.0               1             0.0
Total for primary manufacturing           27,834              23             0.1              64             0.2
 industries \b\.................
----------------------------------------------------------------------------------------------------------------
\a\ Includes all firms with less than 500 employees from 2006 Statistics of U.S. Businesses (SUSB) of the U.S.
  Department of Commerce (U.S. DOC). The Small Business Administration defines firms in nearly all profiled
  NAICS codes according to the firm's number of employees; however, for some in-scope manufacturing NAICS codes
  this threshold is 500 employees while for others this threshold is 750, 1,100, or 1,500 employees. Because the
  SUSB employment size categories do not correspond to the SBA entity size classifications, EPA used the 500
  employee threshold for all in-scope NAICS.
\b\ Due to rounding columns may not sum.

    From this analysis, EPA estimates that 23 to 64 small entities own
Manufacturers facilities that are subject to today's proposed rule,
representing 0.1 to 0.2 percent of total estimated small entities in
the Primary Manufacturing Industries (see Exhibit X-5). Of the six
Primary Manufacturing Industries, Paper has the largest number of small
entities (9 to 29), and these small entities also account for the
largest percentage of total small entities in any of the six
industries--4.1 to 13.2 percent of estimated total small entities in
the Paper industry. The percentage of estimated total small entities
subject to regulation reaches 2 percent for two of the remaining
Primary Manufacturing Industries (Petroleum and Aluminum).
    From the 316(b) survey data, EPA identified an additional 4
entities in the Other Industries that are also small entities; however,
as noted, EPA is unable to estimate the total number of small in-scope
entities in the Other Industries.
c. Total Estimate of Small In-Scope Entities
    On a combined basis, EPA estimates that 56-96 small entities would
be within the scope of the existing facilities rule options. These
counts do not include the additional known 4 small entities in the
Other Industries.

2. Statement of Basis

    As described above, EPA began its assessment of the impact of
today's proposed regulatory options on small entities by first
estimating the number of small entities within the two industry
segments subject to the proposed rule--Electric Generators and
Manufacturers--that would be expected to be within the scope of today's
proposed rule. EPA then assessed whether these small entities would be
expected to incur costs that constitute a significant impact; and
assessed whether the number of those small entities estimated to incur
a significant impact represent a substantial number of small entities.
    To assess whether small entities' compliance costs might constitute
a significant impact, EPA summed annualized compliance costs \110\ for
the Electric Generators and Manufacturers facilities estimated to be
owned by a given small entity and calculated these costs as a
percentage of entity revenue (Cost-to-Revenue Test). EPA compared the
resulting percentages to impact criteria of 1 percent and 3 percent of
revenue. Small entities estimated to incur compliance costs exceeding
one or more of these impact thresholds were identified as potentially
incurring a significant impact.
---------------------------------------------------------------------------

    \110\ Option 1 does not include an assessment of site-specific
entrainment costs. However, Option 3 includes EM based on closed-
cycle cooling at all existing facilities.
---------------------------------------------------------------------------

    For both Electric Generators and Manufacturers, EPA used
alternative sample-weighting approaches, which provide a range of
estimates of the numbers of small entities and in-scope facilities
owned by these small entities.
    The results of this analysis using both weighting approaches are
summarized below. In the following summary table (Exhibit X-6), the
estimated numbers of small entities incurring costs exceeding 1 percent
and 3 percent of revenue are presented as ranges, based on the
alternative sample weighting approaches. In addition, EPA compared the
estimated numbers of small entities with costs exceeding a given impact
threshold with the estimated number of small in-scope entities. The
resulting estimated numbers and percentages of small in-scope entities
that may incur a significant impact, as reported in Exhibit X-6,
provide a measure of the potential impact of the existing facilities
rule options on small in-scope entities.
    From these analyses, EPA estimates under Option 1, the proposed
option, that 5 to 7 small entities will incur costs exceeding 1 percent
of revenue, and 3 small entities will incur costs exceeding 3 percent
of revenue. As percentages of the estimated total of 56 to 96 small in-
scope entities,\111\ these small entities

represent 5 to 13 percent of small in-scope entities at the 1 percent
of revenue threshold, and 3 to 5 percent of small in-scope entities at
the 3 percent of revenue threshold. Both the number of small in-scope
entities incurring a potential impact and the total of small in-scope
entities are estimated as ranges. EPA calculated the range of
percentage of total small in-scope entities incurring a potential
impact by comparing (1) the lower of the estimated number of small in-
scope entities incurring a potential impact with the higher of the
estimated total of small in-scope entities (yields the lower value of
the percentage range) and (2) the higher of the estimated number of
small in-scope entities incurring a potential impact with the lower of
the estimated total of small in-scope entities (yields the higher value
of the percentage range).
---------------------------------------------------------------------------

    \111\ The estimated total of small in-scope entities does not
include the known 4 small Manufacturers entities in the Other
Industries. EPA assessed the potential impact of the regulatory
options on these 4 small entities; none were found to incur a
significant impact under any of the four regulatory options.
---------------------------------------------------------------------------

    For Option 2, EPA estimates that 5 to 7 small entities will incur
costs exceeding 1 percent of revenue (5-13 percent of small in-scope
entities), and 3 to 7 small entities will incur costs exceeding 3
percent of revenue (3-13 percent of small in-scope entities). For
Option 3, EPA estimates that 10 to 22 small entities will incur costs
exceeding 1 percent of revenue (10-39 percent of small in-scope
entities), and 7 to 15 small entities will incur costs exceeding 3
percent of revenue (7-27 percent of small in-scope entities). For
Option 4, EPA estimates that 4 to 6 small entities will incur costs
exceeding 1 percent of revenue (4-11 percent of small in-scope
entities), and 2 small entities will incur costs exceeding 3 percent of
revenue (2-4 percent of small in-scope entities) (see Exhibit X-6).
    For more details on this analysis see EA Chapter 7: Regulatory
Flexibility Act (RFA) Analysis.

                    Exhibit X-6--Estimated Cost-to-Revenue Impact for Small In-Scope Entities
----------------------------------------------------------------------------------------------------------------
                                                                       Cost impact category
                                                 ---------------------------------------------------------------
                                                       Cost > 1% of revenue             Cost >3% of revenue
                Regulatory option                ---------------------------------------------------------------
                                                                  % of small  in-    Number of    % of small  in-
                                                     Number of         scope           small           scope
                                                  small entities   entities \c\    entities a,c    entities \b\
----------------------------------------------------------------------------------------------------------------
Option 1: IM Everywhere.........................             5-7          5%-13%           \b\ 3           3%-5%
Option 2: IM Everywhere and EM for Facilities                5-7          5%-13%             3-7          3%-13%
 with DIF>125 MGD...............................
Option 3: I&E Mortality Everywhere..............           10-22         10%-39%            7-15          7%-27%
Option 4: IM for Facilities with DIF > 50 MGD...             4-6          4%-11%           \b\ 2           2%-4%
----------------------------------------------------------------------------------------------------------------
\a\ The number of entities with cost-to-revenue ratios exceeding 3 percent is a subset of the number of entities
  with such ratios exceeding 1 percent.
\b\ The estimated number of small entities exceeding the impact threshold is the same under both estimation
  approaches; however, the total number of entities differs.
\c\ For both Electric Generators and Manufacturers, EPA used alternative sample-weighting approaches, which
  provide a range of estimates of the numbers of small entities and in-scope facilities owned by these small
  entities (see Section VII(D)(a)(iv) for manufacturers and see Section VII(D)(b)(1)(b) for electric generator
  weighting approaches).

    As described in the preamble above, EPA eliminated 115 facilities
from the analysis that are projected to close as a result of baseline
financial conditions. Of the 115 baseline closures, 18 are small
entities.
    To summarize, for the Proposed Option \112\--Option 1, EPA
estimates that 5 to 7 small entities would incur costs exceeding 1
percent of revenue and 3 small entities would incur costs exceeding 3
percent of revenue. These numbers of adversely affected small entities
represent 5-13 percent of the estimated total of small in-scope
entities for the 1 percent of revenue threshold, and 3-5 percent of the
estimated total of small in-scope entities for the 3 percent of revenue
threshold. Given the small number and percentage of small in-scope
entities estimated to incur a potentially significant economic impact,
EPA judges that the Proposed Option, Option 1, will not cause a
significant economic impact on a substantial number of small entities
(SISNOSE).
---------------------------------------------------------------------------

    \112\ Option 1 does not include an assessment of site-specific
entrainment costs.
---------------------------------------------------------------------------

3. Certification Statement
    After considering the economic impacts of this proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This rule
contains a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. Accordingly, EPA has
prepared under section 202 of the UMRA a written statement which is
summarized below (see Chapter 8 of the EA report).
1. Summary of Written Statement
a. Authorizing Legislation
    Today's proposed rule is issued under the authority of sections
101, 301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water
Act (CWA), 33 U.S.C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342,
1361, and 1370. See section III of this preamble for detailed
information on the legal authority of this rule.
b. Cost-Benefit Analysis
    Today's proposed options are expected to have total annualized pre-
tax (social) costs of $383.80 million (2009 $) under Option 1, of
$4,462.90 million under Option 2, $4,631.62 million under Option 3, and
of $326.55 under Option 4, including direct costs incurred by
facilities and implementation costs incurred by federal, State, and
local governments (annualized over 50 years and discounted at 3
percent).\113\ The total monetized use and non-use benefits of

today's proposed options are estimated to be $17.63 million under
Option 1, $120.79 million under Option 2, $125.65 million under Option
3, and $17.33 million under Option 4 (annualized over 50 years and
discounted at 3 percent).\114\ Thus, the total social costs exceed the
total monetized benefits of the proposed options by $366.17 million for
Option 1, by $4,342.11 million for Option 2, by $4,505.97 million for
Option 3, and by $309.22 under Option 4. EPA notes that these
differences are based on a comparison of a partial measure of benefits
with a more complete measure of costs; \115\ therefore, the results
must be interpreted with caution. After considering the monetized and
non-monetized benefits of the proposed option, EPA has determined that
the benefits of this option justify the costs. For a more detailed
comparison of the costs and benefits of today's proposed rule, see
Chapter 12 of the EA report.
---------------------------------------------------------------------------

    \113\ These social cost estimates use a different estimate of
downtime than the private cost estimates cited above, and are thus
lower. For more details see Chapter 11 in the EA report.
    \114\ EPA was able to estimate nonuse benefits for the North
Atlantic and Mid-Atlantic benefit regions.
    \115\ The costs reflect the costs for facilities do comply with
the primary BTA requirements, and do not reflect any facilities with
reduced costs due to the available compliance alternatives and
flexibilities. Since EPA anticipates a facility would generally
participate in a compliance alternative if it was less burdensome or
less costly to do so, today's costs may be overstated.
---------------------------------------------------------------------------

    EPA notes that States may be able to use existing sources of
financial assistance to revise and implement this proposed rule.
Section 106 of the Clean Water Act authorizes EPA to award grants to
States, Tribes, intertribal consortia, and interstate agencies for
administering programs for the prevention, reduction, and elimination
of water pollution. These grants may be used for various activities to
develop and carry out a water pollution control program, including
permitting, monitoring, and enforcement. Thus, State and Tribal NPDES
permit programs represent one type of State program that can be funded
by section 106 grants.
c. Summary of State, Local, and Tribal Government Input
    EPA consulted with State governments and representatives of local
governments in developing the rule. The outreach activities are
discussed in section III.A.3 of this preamble.
d. Least Burdensome Option
    EPA considered and analyzed several alternative regulatory options
to determine the best technology available for minimizing adverse
environmental impact. These regulatory options are discussed in today's
proposed rule at 67 FR 17154-17168, as well as in section VIII of this
preamble. These options included a range of technology-based approaches
including impingement mortality technology at all facilities with a DIF
greater than 50 MGD to additionally requiring impingement mortality
controls and intake flow commensurate with closed-cycle cooling for all
facilities.\116\ As discussed in detail in section VI, EPA did not
select options exclusively because they were the most cost-effective
among the options that fulfill the requirements of section 316(b). EPA
selected the preferred option because it meets the requirement of
section 316(b) of the CWA that the location, design, construction, and
capacity of CWIS reflect the best technology available for minimizing
adverse environmental impact. In addition, EPA has determined that the
benefits of this option justify the costs, taking quantified and non-
quantified costs and benefits into account. The preferred option
reflects a flexible approach among the options considered that allows
consideration of costs and benefits on a site-specific basis in
determining BTA.
---------------------------------------------------------------------------

    \116\ All options also require site-specific determinations of
BTA where uniform national controls are not included.
---------------------------------------------------------------------------

2. Impact of Compliance Requirements on Small Governments
    This rule is not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments (i.e., governments with a
population of less than 50,000). For its assessment of the impact of
compliance requirements on small governments, EPA compared total costs
and costs per facility as estimated to be incurred by small governments
with those values as estimated to be incurred by large governments. EPA
also compared costs for small government-owned facilities with those of
non-government-owned facilities. The Agency evaluated costs per
facility on the basis of both average and maximum annualized cost per
facility. In these comparisons, both for the cost totals and, in
particular, for the average and maximum cost per facility, the costs
for small government-owned facilities were less than those for large
government-owned facilities or for small non-government-owned
facilities. On this basis, EPA concluded that the compliance cost
requirements of the proposed 316(b) Existing Facilities Rule would not
significantly or uniquely affect small governments.
    Because no Manufacturers facility is government-owned, EPA
conducted this analysis for Electric Generators only.
a. Government-Owned Electric Generator Facilities by Ownership and
Entity Size Category
    Exhibit X-8 provides an estimate of the number of non-Federal
Government entities that operate Electric Generators subject to today's
proposed rule, by ownership type and size of government entity. As
reported in Exhibit X-8, 24 large government entities operate 41
Electric Generators subject to this proposed rule, and 18 small
government entities operate 18 Electric Generators subject to the rule.
Of the 59 facilities that are owned by government entities, 43 are
owned by Municipalities, 9 are owned by State Governments, and 7 are
owned by an Other Political Subdivision.

                              Exhibit X-8--Number of Government Entities and Government-Owned Electric Generator Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Number of government entities (by Size) \a\     Number of facilities (by government entity
                                                         ------------------------------------------------                    size) \b\
                     Ownership Type                                                                      -----------------------------------------------
                                                               Large           Small           Total           Large           Small           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Municipality............................................              18              17              35              26              17              43
State Government........................................               4               0               4               9               0               9
Other Political Subdivision.............................               2               1               3               6               1               7
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................              24              18              42              41              18              59
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Counts of entities owning explicitly and implicitly analyzed Electric Generators; these are not weighted entity counts.
\b\ Counts of explicitly and implicitly analyzed Electric Generators; these are not weighted estimates.

b. Compliance Costs for Small Government-Owned Electric Generators
Facilities
    EPA estimates that 10 of the 41 (24%) non-federal government-owned
Electric Generators facilities subject to today's proposed rule are
owned by small governments (Table X-9).\117,118\ Exhibit X-9 summarizes
total, average annualized compliance costs, and maximum annualized
compliance costs for government (State, local, and Tribal governments)
and non-government-owned facilities for the three regulatory options
and by size category of owning entity.
---------------------------------------------------------------------------

    \117\ A small governmental jurisdiction is defined `` as the
government of a city, county, town, township, village, school
district, or special district with a population of less than 50,000
(5 U.S.C. 601(5)).
    \118\ The entity counts described in this section were developed
on a weighted basis and differ from the values reported in the
preceding section, where were developed on an un-weighted basis. The
values in this section were developed on a weighted basis because
compliance costs were estimated only for explicitly analyzed
facilities and facility weights are used to extend these results to
the full set of in-scope facilities.
---------------------------------------------------------------------------

    EPA first looked at the relationship between costs incurred by
small governments and small government-owned Electric Generators in
comparison to those incurred by large governments and large government-
owned facilities. As reported in Exhibit X-9, the estimated total
annualized compliance costs for all non-federal government-owned
Electric Generators are $10.8 million for Option 1, $102.3 million for
Option 2, $120.1 million for Option 3, and $9.5 million for Option 4.
The 31 facilities owned by large governments would incur costs of $9.2
million under Option 1, $100.7 million under Option 2, $107.6 million
under Option 3, and $8.1 million under Option 4. In comparison, the 10
facilities owned by small governments would incur costs of $1.5 million
under Options 1 and 2, $12.5 million under Option 3, and $1.4 million
under Option 4. On an average cost per facility basis, these costs are
$0.1 million under Options 1, 2, and 4, and $1.2 million under Option
3, for facilities owned by small governments, with large government-
owned facility costs of $0.3 million under Options 1 and 4, $3.2
million under Option 2, and $3.4 million under Option 3. In addition,
the maximum per facility costs owned by small governments are $0.2
million under Options 1, 2, and 4, and $2.1 million under Option 3. The
comparable values for large government-owned facilities are $1.0
million under Options 1 and 4, and $17.8 million under Options 2 and 3.
Accordingly, the costs for small government-owned facilities are
considerably lower than those for large governments on the basis of
total costs, average cost per-facility, and maximum cost per-facility.
EPA therefore concludes that the compliance requirements of today's
proposed rule do not significantly or uniquely affect small governments
in comparison to large governments.

         Exhibit X-9--Electric Generators Facilities and Compliance Costs by Ownership Type and Size for 316(b) Existing Facilities Rule Options
                                                                    [Millions; 2009$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Number of
                Ownership type                             Entity size               facilities     Total compliance  Average cost per  Maximum facility
                                                                                (weighted)           costs           facility          cost \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Option 1: IM Everywhere
--------------------------------------------------------------------------------------------------------------------------------------------------------
Government (excluding Federal)................  Small...........................                10              $1.5              $0.1              $0.2
                                                Large...........................                31               9.2               0.3               1.0
Private.......................................  Small...........................                16               7.7               0.5               2.5
                                                Large...........................               485             354.4               0.7               7.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Facilities \b\                                                                             559             394.2               0.7               7.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Option 2: IM Everywhere and EM for Facilities with DIF  125 MGD
--------------------------------------------------------------------------------------------------------------------------------------------------------
Government (excluding Federal)................  Small...........................                10              $1.5              $0.1              $0.2
                                                Large...........................                31             100.7               3.2              17.8
Private.......................................  Small...........................                16              32.3               2.0              10.9
                                                Large...........................               485           4,171.7               8.6              59.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Facilities \b\                                                                             559           4,811.3               8.6              59.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Option 3: I&E Mortality Everywhere
--------------------------------------------------------------------------------------------------------------------------------------------------------
Government (excluding Federal)................  Small...........................                10             $12.5              $1.2              $2.1
                                                Large...........................                31             107.6               3.4              17.8
Private.......................................  Small...........................                16              34.0               2.2              10.9
                                                Large...........................               485           4,300.3               8.9              59.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Facilities \b\                                                                             559           4,959.4               8.9              59.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Option 4: IM for Facilities with DIF  50MGD
--------------------------------------------------------------------------------------------------------------------------------------------------------
Government (excluding Federal)................  Small...........................                10              $1.4              $0.1              $0.2
                                                Large...........................                31               8.1               0.3               1.0
Private.......................................  Small...........................                16               6.0               0.4               2.5
                                                Large...........................               485             346.1               0.7               7.2

                                                Small...........................               559             383.0               0.7               7.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
a. Facility counts are weighted estimates and differ from the values reported in Exhibit X-8, above, which are un-weighted counts. Sample weighted
  values are needed in this table because costs were developed only for the explicitly analyzed Electric Generators facilities. See EA Appendix A.3:
  Used of Sample Weights in the Proposed Existing Facilities Rule Analysis for more detail.
b. The All Facilities counts and cost values include 15 federal government-owned facilities and 10 private facilities owned by entities of unknown size.
  The individual facility count and cost estimates for the small and large entity categories exclude the values for these 25 facilities.
c. Reflects maximum of un-weighted costs to explicitly analyzed facilities only.

    EPA's analysis also considered whether this proposed rule may
significantly or uniquely affect small governments in relation to non-
government-owned Electric Generators. As reported in Exhibit X-9 the
total compliance cost for 10 small government-owned Electric Generators
incurring costs under today's proposed rule are $1.5 million under
Options 1 and 2, $12.5 million under Option 3, and $1.4 million under
Option 4, or on a per facility basis, approximately $0.1 million for
Options 1, 2, and 4, and $1.2 million for Option 3. In addition, the
highest annualized compliance cost for a small government-owned
facility is $0.2 million under Options 1, 2, and 4, and $2.1 million
under Option 3. In comparison, all small non-government-owned Electric
Generators subject to today's proposed rule are expected to incur
annualized compliance costs of $7.7 million under Option 1, $32.3
million under Option 2, $34.0 million under Option 3, and $6.0 million
under Option 4, or $0.5, $2.0, $2.2, and $0.4 million per facility,
respectively by regulatory option. The highest annualized cost for a
small non-government-owned facility is $2.5 million under Options 1 and
4, and $10.9 million under Options 2 and 3. On the basis of this
comparison, as well, EPA further concludes that the compliance
requirements of the proposed rule do not significantly or uniquely
affect small governments. The EA report provides more detail on EPA's
analysis of impacts on governments.
3. Administrative Costs
    The requirements of Section 316(b) are implemented through the
NPDES (National Pollutant Discharge Elimination System) permit program.
Forty-six States and territories with NPDES permitting authority under
section 402(b) of the CWA are expected to incur costs to administer the
Existing Facilities Rule in their jurisdictions. EPA estimates that
States and territories will incur costs associated with five types of
activities for implementing the requirements of today's proposed rule:
(1) Start-Up activities to learn and understand the requirements of
today's regulation and to implement administrative structures and
procedures for administering the regulation; (2) first permit issuance
activities; (3) permit reissuance activities; (4) entrainment study
costs, and (5) annual activities. EPA estimates that the total
annualized cost for these activities will be $5.31 million for Option
1, $2.19 for Option 2, $1.28 million for Option 3, and $4.06 for Option
4. Monitoring costs comprise the largest share of administrative costs
under all three regulatory options. Exhibit X-10 presents the
annualized costs of the major administrative activities.

                            Exhibit X-10--Annualized Government Administrative Costs
                                                [Millions; 2009$]
----------------------------------------------------------------------------------------------------------------
                                                                                Cost
                                                        --------------------------------------------------------
                        Activity                              Electric
                                                             Generators       Manufacturers      Total In-Scope
----------------------------------------------------------------------------------------------------------------
                                             Option 1: IM Everywhere
----------------------------------------------------------------------------------------------------------------
Start-up Activities....................................              $0.02              $0.02              $0.04
First Permit Issuance Activities.......................              $0.23              $0.24              $0.45
Annual Monitoring Activities...........................              $1.17              $1.12              $2.29
Entrainment Study......................................              $1.19              $0.97              $2.16
Permit Reissuance Activities...........................              $0.18              $0.18              $0.36
                                                        --------------------------------------------------------
    Total..............................................              $2.79              $2.52              $5.31
----------------------------------------------------------------------------------------------------------------
                   Option 2: IM Everywhere and EM for Facilities with DIF  125 MGD
----------------------------------------------------------------------------------------------------------------
Start-up Activities....................................              $0.02              $0.02              $0.04
First Permit Issuance Activities.......................              $0.17              $0.23              $0.35
Annual Monitoring Activities...........................              $0.36              $1.07              $1.37
Entrainment Study......................................              $0.00              $0.00              $0.00
Permit Reissuance Activities...........................              $0.14              $0.17              $0.31
                                                        --------------------------------------------------------
    Total..............................................              $0.69              $1.48              $2.19
----------------------------------------------------------------------------------------------------------------

                                       Option 3: I&E Mortality Everywhere
----------------------------------------------------------------------------------------------------------------
Start-up Activities....................................              $0.02              $0.02              $0.04
First Permit Issuance Activities.......................              $0.16              $0.13              $0.29
Annual Monitoring Activities...........................              $0.20              $0.52              $0.72
Entrainment Study......................................              $0.00              $0.00              $0.00
Permit Reissuance Activities...........................              $0.13              $0.10              $0.23
                                                        --------------------------------------------------------
    Total..............................................              $0.51              $0.77              $1.28
----------------------------------------------------------------------------------------------------------------
                             Option 4: IM for Facilities with DIF  50MGD
----------------------------------------------------------------------------------------------------------------
Start-up Activities....................................              $0.02              $0.02              $0.04
First Permit Issuance Activities.......................              $0.23              $0.06              $0.29
Annual Monitoring Activities...........................              $1.04              $0.31              $1.35
Entrainment Study......................................              $1.19              $0.97              $2.16
Permit Reissuance Activities...........................              $0.18              $0.05              $0.23
                                                        --------------------------------------------------------
    Total..............................................              $2.65              $1.41              $4.06
----------------------------------------------------------------------------------------------------------------

E. Executive Order 13132: Federalism

    Under Executive Order 13132, EPA may not issue an action that has
federalism implications, that imposes substantial direct compliance
costs on the State and local governments, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the proposed action.
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposed rule would not
alter the basic State-federal scheme established in the Clean Water Act
under which EPA authorizes States to carry out the NPDES permitting
program. EPA expects today's proposed rule would have little effect on
the relationship between, or the distribution of power and
responsibilities among, the federal and State governments. EPA expects
an average annual burden of 21,785 hours with total average annual cost
of $1.1 million under Option 1, 6,538 hours and $346,000 under Option
2, and 20,395 hours and $1.0 million under Option 3, for States to
collectively administer this rule during the compliance period.\119\
After the initial compliance period, EPA expects an average annual
burden of 23,550 hours with an average annual cost of $1.2 million for
Option 1, 2,528 hours and $154,000 for Option 2, and 16,988 hours and
$841,000 for Option 3. EPA has identified 47 Phase II facilities that
are owned by State or local government entities. The estimated average
annual compliance cost incurred by these facilities is approximately
$452,000 per facility under Option 1, $4.5 million under Option 2, and
$1.1 million under Option 3. EPA does not expect Option 4 to impose
substantial direct compliance costs on the State and local governments
higher than Option 1, and therefore is not expected to pose Federalism
implications. Thus, Executive Order 13132 does not apply to this rule.
---------------------------------------------------------------------------

    \119\ Because of late revisions to the Existing Facilities
Rule's administrative requirements, EPA was unable to update these
values from those developed earlier in the regulatory analysis. In
addition, EPA did not estimate administrative costs for Option 4,
but expects that these costs would be very similar to those
estimated for Option 1.
---------------------------------------------------------------------------

    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It would not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and the Indian tribes, or
the distribution of power and responsibilities between the Federal
government and Indian tribes as specified in Executive Order 13175. The
national cooling water intake structure requirements would be
implemented through permits issued under the NPDES program. No tribal
governments are currently authorized pursuant to section 402(b) of the
CWA to implement the NPDES program. In addition, EPA's analyses show
that no facility subject to today's proposed rule is owned by tribal
governments and thus this rule does not affect Tribes in any way in the
foreseeable future. Thus, Executive Order 13175 does not apply to this
action.
    EPA specifically solicits additional comment on this proposed
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    This action is not subject to EO 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks. This rule establishes requirements for cooling

water intake structures to protect aquatic organisms.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    Executive Order 13211 (66 FR 28355 (May 22, 2001)) requires EPA to
prepare and submit a Statement of Energy Effects to the Administrator
of the Office of Information and Regulatory Affairs, Office of
Management and Budget, for actions identified as ``significant energy
actions.'' Based on the Office of Management and Budget's guidance for
assessing the potential energy impact of regulations (http://www.whitehouse.gov/omb/memoranda/m01_27.html), the Agency does not
anticipate that today's rule will have a significant adverse effect on
the supply, distribution, or use of energy and thus will not constitute
a significant regulatory action under Executive Order 13211.
    The Agency analyzed the potential energy effects of today's rule
and other regulatory options considered for proposal. The potentially
significant effects of today's rule on energy supply, distribution or
use concern the electric power sector. This analysis found that the
rule's compliance requirements would not cause effects in the electric
power sector that would constitute a significant adverse effect under
Executive Order 13211. Namely, the Agency's analysis found that today's
rule would not reduce electricity production in excess of 1 billion
kilowatt hours per year or in excess of 500 megawatts of installed
capacity, and therefore would not constitute a significant regulatory
action under Executive Order 13211.
    For more detail on the potential energy effects of this proposal,
see Section VII of this preamble or Chapter 9 in the EA report.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking may involve technical standards, for
example in the measurement of impingement and entrainment. Nothing in
this proposed rule would prevent the use of voluntary consensus
standards for such measurement where available, and EPA encourages
permitting authorities and regulated entities to do so.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. Because EPA expects that this proposed rule will
help to preserve the health of aquatic ecosystems located in reasonable
proximity to 316(b) Existing Facilities, EPA believes that all
populations, including minority and low-income populations, will
benefit from improved environmental conditions as a result of this
rule.\120\
---------------------------------------------------------------------------

    \120\ Affected populations include all individuals who live
within a 50-mile radius of the facility who will be receiving a non-
use benefit from the improved health of the aquatic ecosystem in the
area, and any additional anglers who live outside of the 50-mile
facility buffer and within a 50-mile radius of the reaches nearest
to 316(b) Existing Facilities, who will be receiving the use benefit
of improved catches as a result of the proposed rule.
---------------------------------------------------------------------------

    To meet the objectives of Executive Order 12898, EPA assessed
whether today's proposed rule could distribute benefits among
population sub-groups in a way that is significantly unfavorable to
low-income and minority populations. EPA compared key demographic
characteristics of affected sub-state populations to those demographic
characteristics at the level of the state. If the demographic profile
of the sub-state ``benefit population'' were found to differ in a
statistically significant and unfavorable \121\ way from the
demographic profile of the state, generally, then the proposed rule
might be assessed as yielding an unfavorable distribution of benefits,
from the perspective of the public policy principles of Executive Order
12898. The two demographic variables of interest for this EJ analysis
are those within the Fish Consumption Pathway (FCP) Module that best
capture the minority and low-income aspects of the populations
affected, which are annual household income and race.122 123
Variable averages at the sub-state and state levels were compared to
determine whether or not the demographic profile of the affected
population was consistent with the state profile (for details see
Chapter 9 of the EA report).
---------------------------------------------------------------------------

    \121\ That is, the estimated benefit population is comprised of
a significantly lower share of low-income and/or minority
populations than the general population of the state.
    \122\ Annual household income data in the FCP Module is
available for the following categories: Less than $10,000; $10,000
to $19,999; $20,000 to $24,999; $25,000 to $29,999; $30,000 to
$34,999; $35,000 to $39,999; $40,000 to $49,999; $50,000 to $74,999;
$75,000 to $99,999; and more than $100,000. For this analysis as
well as previous 316(b) rule analyses, these categories were
combined into low- and not low-income groups based on the U.S.
Department of Health and Human Services' poverty guidelines for a
family of four living in the contiguous United States or D.C. The
current (2009) poverty guideline is $22,050, which falls within the
$20,000 to $24,999 income range (U.S. HHS, 2009). For the current
analysis, EPA used $20,000 as the threshold for separating
populations into low- and not low-income groups.
    \123\ Race categories used in the analysis include white, black
or African American, Asian or Native Hawaiian or Other Pacific
Islander, American Indian or Alaska Native, and some other race.
---------------------------------------------------------------------------

    The comparison of minority populations affected by the 316(b)
Existing Facilities to the affected states' overall populations found
no statistically significant difference between these groups. While
low-income populations were less present in the benefit population than
in the State's overall population in many states, the differences were
generally very small and the two groups were not found to be
significantly different. EPA thus believes that the proposed regulation
does not systematically discriminate against, or exclude or deny
participation of, the lower income population group or the minority
population group in the benefits of the proposed regulation in a way
that would be contrary to the intent of E.O. 12898. Because today's
proposed regulation requires all 316(b) Existing Facilities to achieve
compliance regardless of

location, there can be no systematic discrimination or exclusion of low
income or minority populations from participation in the rule's
benefits, based, for example, on selection of only specific facilities
to which the regulation would apply.\124\ EPA thus concludes, overall,
that the proposed regulation is consistent with the policy intent of
E.O. 12898. Anecdotally, minority (e.g., Native American) and low-
income populations may be more likely to include a larger proportion of
subsistence fishermen. Since this rule will increase abundance of all
fish species in the areas affected by cooling water intakes, it may
provide a particular benefit to subsistence fishermen. To the extent
that minority and low-income populations are over-represented in this
group, they may especially benefit from this rule.
---------------------------------------------------------------------------

    \124\ Additionally, in states in which low-income populations
are less present in the benefits group than in the state population
overall, these populations are not subject to the environmental
damages today's rule seeks to ameliorate to the same extent as other
income groups.
---------------------------------------------------------------------------

K. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
    Today's proposed rule recognizes the biological sensitivity of
tidal rivers, estuaries, oceans, and the Great Lakes and their
susceptibility to adverse environmental impact from cooling water
intake structures. This rule provides requirements to minimize adverse
environmental impact for cooling water intake structures located on
these types of waterbodies.
    EPA used GIS data of the locations of Marine Protected Areas (MPAs)
from the national MPA program (http://www.mpa.gov/helpful_resources/inventory.html) to locate 316(b) existing facilities with intakes
within MPAs. Under Option 1, 87 percent of in-scope facilities within
MPAs obtain reductions in impingement mortality, while reductions in
entrainment mortality cannot be estimated because they will be based on
site-specific determinations of BTA. Under Options 2 and 3, impingement
mortality is reduced at 92 and 97 percent of 316(b) facilities in MPAs,
while the addition of closed-cycle cooling towers results in reduced
entrainment mortality at 72 and 92 percent of in-scope facilities found
in MPAs, respectively. Therefore, EPA expects today's proposed
regulation would advance the objective of the Executive Order to
protect marine areas. For more details of the methodology used in this
analysis and the specific water bodies expected to be improved, see
Section 5 in Chapter 9 in the EA report.

XI. Solicitation of Data and Comments

A. General Solicitation of Comment

    EPA encourages public participation in this rulemaking. EPA asks
that commenters address any perceived deficiencies in the record
supporting this proposal and that suggested revisions or corrections to
the rule, preamble or record be supported by data. EPA invites all
parties to coordinate their data collection activities with the Agency
to facilitate cost-effective data submissions. Please refer to the FOR
FURTHER INFORMATION CONTACT section at the beginning of this preamble
for technical contacts at EPA.
    Requests for comment on specific issues are scattered throughout
this preamble in the sections where such issues are discussed. In
addition, EPA specifically requests comment on the issues discussed
below.

B. Specific Solicitation of Comments and Data

 Definition of ``Design Intake Flow''
    EPA requests comment on whether the definition of DIF should be
further revised to clarify that EPA intends for the design intake flow
to reflect the maximum volume of water that a plant can physically
withdraw from a source waterbody over a specific time period. This
would mean that a facility that has permanently taken a pump out of
service or has flow limited by piping or other physical limitations
should be able to consider such constraints when reporting its DIF. See
Section V.G.
2. National BTA Categorical Standards for Offshore Oil and Gas
Extraction and Seafood Processing Facilities
    EPA requests comment and data on the appropriateness of a single
BTA categorical standards for offshore oil and gas extraction
facilities and seafood processing facilities. Today's rule would
continue to require that the BTA for existing offshore oil and gas
extraction facilities and seafood processing facilities be established
by NPDES permit directors on a case-by-case basis using best
professional judgment. See Section V.H.
3. Cost-cost Alternative From Phase II Rule
    EPA does not have technical data for all existing facilities. EPA
concluded that the Phase II rule costs provided in Appendix A are not
appropriate for use in a facility-level cost-cost test. See Section
III. Moreover, under the national requirements EPA is proposing today,
EPA concluded that a specific cost-cost variance is not necessary
because the Director already has the discretion to consider such
factors. EPA requests comment on these conclusions.
4. Entrainment Survival
    There are circumstances where certain species of eggs have been
shown to survive entrainment under certain conditions, however EPA has
not received any new data for either the most common species or the
species of concern most frequently identified in available studies. For
purposes of today's national rulemaking, entrainment is still presumed
to lead to 100 percent mortality. See Section VI. Today's proposed rule
would allow facilities to demonstrate, on a site-specific basis, that
entrainment mortality of one or more species of concern is not 100
percent. EPA requests comment on this approach.
5. Alternative Impingement Mortality Compliance Requirements
    EPA requests comment and data on a provision that would require
facilities seeking to comply with the impingement mortality standard by
meeting an intake velocity requirement either to demonstrate that the
species of concern is adequately protected by the maximum intake
velocity requirements, or else to employ fish friendly protective
measures including a fish handling and return system. EPA is
considering this provision because the Agency is concerned that some
facilities that comply with the impingement mortality requirements by
reducing intake velocity to 0.5 fps or less, may still impact species
of concern. See Section VI.D.1.a.
6. Monthly and Annual Limits on Impingement Mortality
    EPA requests comment on the need to tailor the impingement
mortality requirements of today's proposal to

account for site-specific circumstances and/or technologies, including
location of cooling water intakes that impinge relatively few fish or
other approaches that achieve impingement mortality reductions
equivalent to the proposed performance standards. For example, if EPA
were to consider number of fish killed as an alternative, it might
statistically model the data or select the minimum observed value.
Studies and information supporting these alternatives would be most
helpful. EPA also requests comment on the monthly and annual limits in
the proposed rule and way in which they were calculated.
7. Flow Basis for Option
    EPA requests comment on both the threshold and the flow basis for a
variation of option 2 that would use 125 MGD Actual Intake Flow (AIF)
rather than a 125 MGD Design Intake Flow (DIF) as the threshold. See
Section VI.D.2.
8. Waterbody Type as a Basis for Different Standards
    EPA's reanalysis of impingement and entrainment data does not
support the premise that the difference in the density of organisms
between marine and fresh waters justifies different standards. More
specifically, the average density of organisms in fresh waters may be
less than that found on average in marine waters, but the actual
density of aquatic organisms in some specific fresh water systems
exceeds that found in some marine waters. EPA also believes the
different reproduction strategies of freshwater versus marine species
make broad characterizations regarding the density less valid a
rationale for establishing different standards for minimizing adverse
environmental impact. EPA requests comment on its proposal not to
differentiate requirements by water body type.
9. Capacity Utilization Rating as a Basis for Different Standards
    Electric generating facilities may still continue to withdraw
significant volumes of water when not generating electricity. Further,
EPA found that load-following and peaking plants operate at or near 100
percent capacity (and therefore 100 percent design intake flow) when
they are operating. Peaking facilities (those with a CUR of less than
15 percent, as defined in the 2004 Phase II rule) may withdraw
relatively small volumes on an annual basis, but if they operate during
biologically important periods such as spawning seasons or migrations,
then they may have nearly the same adverse impact as a facility that
operates year round. EPA requests comment on its decision not to
exclude facilities with a low capacity utilization rate. Comments who
believe that EPA should include a CUR threshold in the final rule
should provide a suggested threshold and explain the basis for it.
10. Flow Commensurate With Closed-Cycle Cooling
    EPA requests comment on whether the demonstration that a facility's
flow reduction will be commensurate with closed-cycle cooling should be
based on a defined metric, or determined by the permitting authority on
a site-specific basis for each facility. EPA is proposing that a
facility seeking to demonstrate flow reduction commensurate with
closed-cycle cooling using flow reduction technologies and controls
other than through closed-cycle cooling (e.g., through seasonal flow
reductions, unit retirements, and other flow reductions) would have to
demonstrate total flow reductions approximating 97.5% for freshwater
withdrawals and 94.9% for saltwater withdrawals. See Section IX.D.
11. Credits for Unit Closures
    EPA requests comments on the proposed approach to allow credits for
unit closures to be valid for 10 years from the date of the closure. In
EPA's current thinking this approach reasonably allows facilities to
get credit for flow reductions attributable to unit closures, but also
requires such facilities to make future progress to ensure its
operations reflect best available entrainment controls. See Section
IX.D.
12. Land Constraints
    EPA requests comment on the use of a ratio for determining the land
constraint threshold for retrofit construction of cooling tower, as
well as data for determining alternative thresholds. EPA has not
identified any facilities with more than 160 acres/1000MWs that EPA
believes would be unable to construct retrofit cooling towers. EPA is
exploring the use of such a ratio to support determinations regarding
adequate land area to construct retrofit cooling towers. See Section
IX.D (footnote 1).
13. Proposed Implementation Schedule
    EPA requests comment on its proposed schedule for implementing the
proposed rule. The proposed schedule uses a phased approach for
information submittal, requiring some facilities to submit application
materials as soon as six months after rule promulgation. The longest
timeframe for information submittal would not exceed seven years and
six months. EPA solicits comment on the proposed schedule, and
specifically seeks comment and data on the appropriate amount of time
to collect data, conduct reviews, obtain comment, provide for public
participation, and issue final permit conditions. See Section IX.E.
14. Methods for Evaluating Latent Mortality Effects Resulting From
Impingement
    EPA requests comment on methods for evaluating latent mortality
effects resulting from impingement. EPA requests comment on whether it
should specifically establish 24 or 48 hours after initial impingement
as the time at which to monitor impingement mortality. EPA's record
demonstrates that a holding time of no more than 48 hours is optimal
for evaluating the latent mortality associated with impingement while
at the same time minimizing mortality associated with holding the
organisms. See Section IX.F.1.
15. Counting Impinged Organisms With the ``Hypothetical Net''
    EPA requests comment on the ``hypothetical net'' approach to
measuring impingement mortality. Facilities could apply a
``hypothetical net'' in that they could elect to only count organisms
that would not have passed through a net with 3/8'' mesh. For example,
a facility that uses a fine-mesh screen or diverts the flow directly to
a sampling bay would only need to count organisms that could be
collected if the flow passed through a net, screen, or debris basket
fitted with 3/8'' mesh spacing. See Section IX.F.1. EPA further
solicits comment on alternative approaches that would not penalize
facilities for employing fine mesh screens.
16. Incentives for Reducing I&E by Reducing Water Withdrawals
    EPA requests comment on incentives or alternative requirements for
exceptionally energy efficient or water efficient facilities. See
Section III. EPA also solicits comment on the regulatory provisions
that encourage the use of recycled water as cooling water, including
reclaimed water from wastewater treatment plants and process water from
manufacturing facilities, EPA solicits comment on other incentives to
encourage use of recycled water to supplement or replace marine,
estuarine, or freshwater intakes.

17. Options Which Provide Closed-Cycle Cooling as BTA
    EPA solicits comment on regulatory options that establish closed-
cycle cooling as BTA. EPA specifically requests comment on the
regulatory options 2 and 3 included in today's proposal, which would
establish closed-cycle cooling as BTA for EM at a DIF of 2 MGD and 125
MGD, respectively. See Section VI and VII. EPA further solicits comment
and supporting data on alternative thresholds, including whether such