U. S. Environmental Protection Agency Information Collection Request for Cooling Water Intake Structures Phase III Proposed Rule November 24, 2004 i November 24, 2004 TABLE OF CONTENTS 1. Identification of the Information Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1a. Title of the Information Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1b. Short Characterization/ Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Need for and Use of the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a. Need/ Authority for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a( i). Need for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2a( ii). Authority for the Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2b. Practical Utility/ Users of the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3. Nonduplication, Consultations, and Other Collection Criteria . . . . . . . . . . . . . . . . . 17 3a. Nonduplication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3b. Public Notice Required Prior to ICR Submission to OMB . . . . . . . . . . . . . . . . 17 3c. Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3d. Effects of Less Frequent Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3e. General Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3f. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 3g. Sensitive Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4. The Respondents and the Information Requested . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4a. Respondents/ SIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4b. Information Requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 4b( i). Data Items, Including Record Keeping Requirements . . . . . . . . . . . . . . 23 4b( ii). Respondent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 5. The Information Collected   Agency Activities, Collection, Methodology and Information Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 5a. Agency Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 5b. Collection Methodology and Information Management . . . . . . . . . . . . . . . . . . 47 5c. Small Entity Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 5d. Collection Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 6. Estimating Respondent Burden and Cost of Collection . . . . . . . . . . . . . . . . . . . . . . 52 6a. Estimating Respondent Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Facility Burdens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 ii November 24, 2004 6b. Estimating Respondent Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 6b( i). Estimating Labor Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 6b( ii). Estimating Capital and Operation and Maintenance Costs . . . . . . . . . . . 74 6c. Estimating Agency Burden and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 6d. Estimating the Respondent Universe and Total Burden and Costs . . . . . . . . . . 85 6e. Bottom Line Burden Hours and Costs Tables . . . . . . . . . . . . . . . . . . . . . . . . . . 86 6e( i). Respondent Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 6e( ii). Agency Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 6f. Reasons For Change In Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 6g. Burden Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 APPENDIX A Respondent Burden and Cost Analysis for the Information Collection Requirements of Phase III Existing Manufacturing Facilities APPENDIX B Respondent Burden and Cost Analysis for the Information Collection Requirements of Phase III New Offshore Oil and Gas Extraction Facilities LIST OF EXHIBITS Exhibit 1. Selected NPDES State Statutory/ Regulatory Provisions: Addressing the Impact from Cooling Water Intake Structures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Exhibit 2. Industry Categories and SIC Codes for Phase III Proposed Rule . . . . . . . . . 22 Exhibit 3. Facility Activities for Phase III Existing Manufacturing Facilities . . . . . . . . 28 Exhibit 4. Facility Activities for Phase III New Offshore Oil and Gas Extraction Facilities ( Track I Applications) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Exhibit 5. Number of Existing Manufacturing Facilities Assumed to Begin Compliance with Information Collection: Requirements During the ICR Approval Period by Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Exhibit 6. Number of New Offshore Oil and Gas Extraction Facilities Assumed to Begin Compliance with Information Collection: Requirements During the ICR Approval Period by Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Exhibit 7. Average per Facility Burden for each NPDES Permit Application Activity for Existing Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 iii November 24, 2004 Exhibit 8. Average per Facility Burden for each NPDES Permit Application Activity for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Exhibit 9. Average Burden per Facility for Annual Monitoring and Reporting Activities for Existing Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Exhibit 10. Average Burden per Facility for Annual Monitoring and Reporting Activities for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Exhibit 11. Impingement Mortality and/ or Entrainment Characterization Study Sample Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Exhibit 12. Average Director Burden for Activities for Existing Manufacturers . . . . . . 69 Exhibit 13. Average Director Burden for Activities for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Exhibit 14. Average per Facility Burden and Costs for each NPDES Permit Application Activity for Existing Manufacturers for the 50 MGD All Waterbodies Option . . . . . . . 76 Exhibit 15. Average per Facility Burden and Costs for each NPDES Permit Application Activity for Existing Manufacturers for the 200 MGD All Waterbodies Option . . . . . . 77 Exhibit 16. Average per Facility Burden and Costs for each NPDES Permit Application Activity for Existing Manufacturers for the 100 MGD Certain Waterbodies Option . . . 78 Exhibit 17. Average per Facility Burden and Costs for each NPDES Permit Application Activity for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . 79 Exhibit 18. Average Burden and Costs* per Facility for Annual Monitoring and Reporting Activities for Existing Manufacturers for the 50 MGD All Waterbodies Option . . . . . . 80 Exhibit 19. Average Burden and Costs* per Facility for Annual Monitoring and Reporting Activities for Existing Manufacturers for the 200 MGD All Waterbodies Option . . . . . 80 Exhibit 20. Average Burden and Costs* per Facility for Annual Monitoring and Reporting Activities for Existing Manufacturers for the 100 MGD Certain Waterbodies Option . . 81 Exhibit 21. Average Burden and Costs* per Facility for Annual Monitoring and Reporting Activities for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . 81 Exhibit 22. Average Director Burden and Costs* for Activities for Existing Manufacturers for the 50 MGD All Waterbodies Option . . . . . . . . . . . . . . . . . . . . . . . 82 iv November 24, 2004 Exhibit 23. Average Director Burden and Costs* for Activities for Existing Manufacturers for the 200 MGD All Waterbodies Option . . . . . . . . . . . . . . . . . . . . . . 83 Exhibit 24. Average Director Burden and Costs* for Activities for Existing Manufacturers for the 100 MGD Certain Waterbodies Option . . . . . . . . . . . . . . . . . . . 83 Exhibit 25. Average Director Burden and Costs* for Activities for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Exhibit 26. Estimating Federal Burden and Costs for Activities for Existing Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Exhibit 27. Summary of Average Annual Respondents, Burden, and Costs for Facilities and State Directors for the ICR Approval Period for Existing Manufacturers . . . . . . . . 87 Exhibit 28. Summary of Average Annual Respondents, Burden, and Costs for Facilities and EPA Regional Directors for the ICR Approval Period for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Exhibit 29. Summary of Average Annual Agency Burden and Costs for the ICR Approval Period for Existing Manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Exhibit 30. Summary of Average Annual Agency Burden and Costs for the ICR Approval Period for New Offshore Oil and Gas Extraction Facilities . . . . . . . . . . . . . . . . . . . . . . 88 1 November 24, 2004 1. Identification of the Information Collection 1a. Title of the Information Collection TITLE: Cooling Water Intake Structures at Phase III Facilities ( Proposed Rule)

U. S. EPA ICR NUMBER: 2169.01 1b. Short Characterization/ Abstract The section 316( b) proposed regulations for Phase III facilities would require the collection of information from existing point source manufacturing facilities that employ a cooling water intake structure( s) that uses at least 25 percent of the water withdrawn for cooling purposes and whose design intake flow equals or exceeds one of the three proposed threshold values of 50 million gallons per day ( MGD) for all waterbodies; 200 MGD for all waterbodies; or 100 MGD for oceans, estuaries, tidal rivers or one of the Great Lakes ( certain waterbodies). The proposed rule also would require collection of information from new offshore oil and gas extraction facilities which use a cooling water intake structure( s) that uses at least 25 percent of the water it withdraws for cooling purposes, and have design intake flows greater than 2 MGD. Section 316( b) of the Clean Water Act ( CWA) requires that any standard established under section 301 or 306 of the CWA and applicable to a point source must require that the location, design, construction and capacity of cooling water intake structure( s) at that facility reflect the best technology available for minimizing adverse environmental impact. Such impact occurs as a result of impingement ( where fish and other aquatic life are trapped on technologies at the entrance to cooling water intake structures) and entrainment ( where aquatic organisms, eggs, and larvae are taken into the cooling system, passed through the heat exchanger, and then pumped back out with the discharge from the facility). The proposed rule establishes requirements applicable to the location, design, construction, and capacity of cooling water intake structures at Phase III existing facilities and new offshore oil and gas extraction facilities. These requirements seek to establish the best technology available for minimizing adverse environmental impact associated with the use of cooling water intake structure( s).

Today's proposed rule would establish requirements consistent with Phase II for existing facilities and requirements under Subpart N for new offshore oil and gas extraction facilities. 2 November 24, 2004 EPA chose the three design intake flow thresholds to focus the proposed rule on the largest existing manufacturers. The three thresholds proposed are reasonable because they address a substantial percentage of the cooling water flow withdrawn by existing manufacturers. EPA believes the regulation of existing manufacturers with flows equal to or exceeding the three threshold design intake flows in Phase III will address those existing facilities with the greatest potential to cause or contribute to adverse environmental impact. For new offshore oil and gas extraction facilities, EPA chose to apply requirements under § 125.133 of the proposed rule ( consistent with Phase I under § 125.83) to address a substantial percentage of the cooling water flow withdrawn by these new facilities.

As in the Phase II final rule, in today's proposed Phase III rule, an existing facility would be required to choose one of the following five compliance alternatives for establishing best technology available for minimizing adverse environmental impact at the site:

1. i. Demonstrate that it has reduced, or will reduce, its flow commensurate with a closed cycle recirculating system. In this case, the facility will not be required to demonstrate further that it meets the impingement mortality and entrainment performance standards. In addition, the facility is not subject to the requirements in § 125.104, § 125.105, § 125.106 or § 125.107. However, the facility may still be subject to any more stringent requirements established under § 125.103( e); or ii. Demonstrate that it has reduced, or will reduce, its maximum through screen design intake velocity to 0.5 feet per second or less. In this case , the facility will not be required to demonstrate further that it meets the performance standards for impingement mortality and is not subject to the impingement requirements in § 125.104, § 125.105, § 125.106 or § 125.107. However, the facility may still be subject to any applicable requirements for entrainment mortality and may still be subject to any more stringent requirements established under § 125.103( e);

2. Demonstrate that its existing design and construction technologies, operational measures, and/ or restoration measures meet the performance standards specified in § 125.103( b) and/ or the restoration requirements in § 125.103( c);

3. Demonstrate that the facility has selected design and construction technologies, operational measures, and/ or restoration measures that will, in combination with any existing design and construction technologies, operational measures, and/ or restoration measures, meet the performance standards specified in § 125.103( b) and/ or the restoration requirements in § 125.103( c);

4. Demonstrate that the facility has installed, or will install, and properly operate and maintain an approved design and construction technology in accordance with § 125.108( a) or ( b). or, 3 November 24, 2004 5. Demonstrate that the facility has selected, installed, and is properly operating and maintaining, or will install and properly operate and maintain design and construction technologies, operational measures, and/ or restoration measures determined to be the best technology available for the facility in accordance with § 125.103( a)( 5)( i) and ( ii).

For compliance alternative 5, the facility would be required to meet one of two cost tests: 1) demonstrate that costs of compliance under alternatives 1 4 would be significantly greater than costs considered by the Administrator for a similar facility, or 2) demonstrate that costs of compliance under alternatives 1 4 would be significantly greater than the benefits of complying with the applicable performance standards at the facility.

The section 316( b) Phase III proposed rule would require several distinct types of information collection as part of the NPDES application. In general, the information will be used to identify which of the performance requirements in the rule apply to the facility, how the facility plans to meet these requirements, and to assess compliance with the performance requirements. Specific data requirements that would apply to all facilities are:

° Source water physical data which shows the physical configuration of all source waterbodies used by the facility, identifies and characterizes the source waterbody's hydrological and geomorphological features, and provides location through maps.

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

Specific data requirements that would apply only to existing manufacturers and not be required by new offshore oil and gas extraction facilities are:

° Cooling water system data that characterizes the operation of the cooling water system and its relationship to the cooling water intake structure.

° Comprehensive Demonstration Study ( New offshore oil and gas extraction facilities with Track II applications will perform and submit a Comprehensive Demonstration Study)

Most Phase III existing facilities ( except those facilities meeting the requirements of compliance alternative ( 1)( i), would conduct a Comprehensive Demonstration Study ( Study) that characterizes the source water baseline in the vicinity of the intake structure( s), characterizes operation of the cooling water intake( s), and confirms that the technology( ies), operational measures and restoration measures proposed and/ or implemented at the cooling water intake structure meet the applicable national performance standards specified in § 125.103. The proposed rule would require that 4 November 24, 2004 Phase III existing facilities submit the information required for the Study consistent with the compliance alternative selected. Facilities that meet the requirements in § 125.103( a)( 1)( ii) by reducing their design intake velocity to 0.5 feet per second or less would be required to only submit a Study for the entrainment requirements, if applicable. Facilities that meet the requirements in § 125.103( a)( 4) and have installed and properly operate and maintain an approved design and construction technology ( in accordance with § 125.108) would be required to submit only the Technology Installation and Operation Plan and the Verification Monitoring Plan. Facilities that would be required to meet only impingement mortality reduction requirements in § 125.103( b)( 1) would be required to submit only a Study for the impingement mortality reduction requirements. The Study would include the following data requirements.

° Proposal for information collection that describes the proposed and/ or implemented technology( ies), operational measures, and/ or restoration measures to be evaluated in the study, describes any historical studies that are proposed to be used in the study, summarizes any past, ongoing, or voluntary consultation with fish and wildlife management agencies ( including a copy of written comments received as a result of such consultation), and provides a sampling plan for any new field studies proposed to be conducted.

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

° Impingement Mortality and/ or Entrainment Characterization Study that provides information to support the development of a calculation baseline for evaluating impingement mortality and entrainment and to characterize current impingement mortality and entrainment.

° Technology and compliance assessment information that explains the technologies and operational measures that are in place or have been selected to reduce impingement mortality and entrainment, calculates the reduction in impingement mortality and entrainment that would be achieved by the selected technologies and operational measures, and demonstrates that the location, design, construction and capacity of the cooling water intake structure have been selected to reflect best technology available at the site. This information includes a Design and Construction Technology Plan and possibly a Technology Installation and Operation Plan.

° Restoration Plan ( if the facility proposes to use restoration measures) that describes the restoration measures that are proposed to be implemented; quantifies the combined benefits from implementing design and construction technologies, operational measures and/ or restoration measures; presents a plan for implementing and 5 November 24, 2004 maintaining the efficacy of the restoration measures; and summaries of consultations with appropriate fish and wildlife management agencies; design and engineering calculations, drawings and maps; and a final report from an independent peer review of materials submitted.

° Verification Monitoring Plan that describes the monitoring that will be used to verify the full scale performance of the proposed or implemented technologies, operational measures, and/ or restoration measures.

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

° Comprehensive cost evaluation study that documents the cost of implementing the Design and Construction Technology Plan and the costs of the alternative technologies and operational measures that the facility proposes to implement at the site.

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

° A narrative description of any non monetized benefits that would be realized at the facility if it was to meet the performance standards and a qualitative assessment of their magnitude and significance.

° Site specific technology plan that describes the design and operation of all design and construction technologies, operational measures and restoration measures ( existing and proposed) that the facility has selected; demonstrates the efficacy of the technologies; and demonstrates that the technologies, operational measures or restoration measures selected would reduce impingement mortality and entrainment to the extent necessary to satisfy the requirements of § 125.103; and includes design calculations, drawings, and estimates to support the plan.

Under today's proposed rule, new offshore oil and gas extraction facilities would be required to submit the Track I or Track II application requirements consistent with § 122.21( r)( 2), ( 3), and ( 4) and § 125.136( b) or § 125.136( c), respectively, of the proposed rule. This includes source water baseline biological characterization data, velocity information, source waterbody flow information, and a Design and Construction Technology Plan for Track I applications and Comprehensive Demonstration Study and source waterbody flow information for Track II applications.

In addition to the information requirements of the NPDES permit application, NPDES permits normally specify monitoring and reporting requirements to be conducted by the 6 November 24, 2004 permitted entity. Monitoring would be conducted in accordance with the Verification Monitoring Plan required by § 125.104( b)( 7), the Technology Installation and Operation Plan required by § 125.104( b)( 4)( ii), if applicable, the Restoration Plan required by § 125.104( b)( 5), and any additional monitoring specified by the Director to demonstrate compliance with the applicable requirements of § 125.103. The results of each facility's monitoring efforts would be reported biennially to the Director in a status report.

Finally, facilities would be required to maintain records of all submitted documents, supporting materials, and monitoring results for at least three years ( or as directed by the Director). Facilities would also be required to perform a verification study to demonstrate that they are meeting the required level of impingement mortality and entrainment reduction, as appropriate.

Under today's proposed rule, an authorized State would update programs to be consistent with the final cooling water intake requirements or may demonstrate to the Director that it has adopted alternative regulatory requirements in its NPDES program that will result in environmental performance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved under § 125.103. Following review, the Director would approve alternative regulatory requirements. State Directors are required to also review all materials submitted to them by the facilities within the scope of the proposed regulation, confirm compliance with the rule, and issue NPDES permits with appropriate conditions to minimize adverse environmental impact associated with the use of the facilities' cooling water intake structure( s).

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

Under the proposed 50 MGD for all waterbodies option for existing manufacturers, during the first three years after rule promulgation of the proposed rule, the information collection required would involve responses from an estimated total of 56 facilities and 46 States and Territories and cost approximately $ 35 million ( including operation and maintenance costs), with an annual average of 81 respondents, 202,486 burden hours, and $ 11.7 million per year ( for additional detail see Section 6 and Exhibit A. 50MGD. 11 in Appendix A).

Under the proposed 200 MGD for all waterbodies option for existing manufacturers, during the first three years after rule promulgation of the proposed rule, the information collection required would involve responses from an estimated total of 13 facilities and 46 States and Territories and cost approximately $ 9.5 million ( including operation and maintenance costs), with an annual average of 29 respondents, 48,880 burden hours, and 7 November 24, 2004 $ 3.2 million per year ( for additional detail see Section 6 and Exhibit A. 200MGD. 11 in Appendix A).

Under the proposed 100 MGD for certain waterbodies option for existing manufacturers, during the first three years after rule promulgation of the proposed rule, the information collection required would involve responses from an estimated total of 11 facilities and 46 States and Territories and cost approximately $ 13.2 million ( including operation and maintenance costs), with an annual average of 33 respondents, 72,223 burden hours, and $ 4.4 million per year ( for additional detail see Section 6 and Exhibit A. 100MGD. 11 in Appendix A).

For new offshore oil and gas extraction facilities, during the first three years after rule promulgation of the proposed rule, the information collection required would involve responses from an estimated total of 31 facilities and three EPA Regions and cost approximately $ 3.7 million ( including operation and maintenance costs), with an annual average of 25 respondents, 13,399 burden hours, and $ 1.2 million per year ( see Section 6 and Exhibit B. 11 in Appendix B for additional detail). 1 This volume is only from existing manufacturers with a design intake flow of 50 MGD or more.

2 EPA 2000. Detailed Industry Questionnaire: Phase II Cooling Water Intake Structures. U. S. Environmental Protection Agency, Office of Wastewater Management, Washington, D. C. OMB Control No. 2040 0213.

8 November 24, 2004 2. Need for and Use of the Collection 2a. Need/ Authority for the Collection The following sections describe the need for this information collection and the legal authority under which this information will be collected.

2a( i). Need for the Collection The information requirements of today's proposed rule are necessary to ensure that existing facilities and new offshore oil and gas extraction facilities would comply with the proposed rule's provisions, and thereby minimizing adverse environmental impact resulting from impingement and entrainment losses due to the withdrawal of cooling water. There is substantial evidence that existing cooling water intake structures have an adverse impact on the nearby environment. There is also evidence that current systems are not using the best technology available to minimize adverse environmental impact, and that a national regulatory approach is justified.

Evidence that Significant Environmental Impact is Occurring as a Result of Cooling Water Intake Structures EPA estimates that Phase III facilities under the scope of the proposed rule have the potential to withdraw on average more than 28 billion gallons1 of cooling water a day from waters of the U. S. 2 The withdrawal of such large quantities of cooling water in turn affects large quantities of aquatic organisms including phytoplankton ( tiny, free floating photosynthetic organisms suspended in the water column), zooplankton ( small aquatic animals, including fish eggs and larvae, that consume phytoplankton and other zooplankton), fish and shellfish. Aquatic organisms drawn into cooling water intake structures are either impinged on components of the cooling water intake structure or entrained in the cooling water system itself.

Impingement takes place when organisms are trapped against intake screens by the force of the water being drawn into through the cooling water intake structure. The velocity forces of the water withdrawal by the cooling water intake structure can prevent proper gill movement, remove fish scales, and cause other physical damage. Impingement can 3 EPA. 2004. Chapter A7: Entrainment Survival, Case Study Analysis for the section 316( b) Phase II Existing Facilities Rule.

4 This total includes cooling water intakes designed to take 2 MGD or more.

9 November 24, 2004 causes the physical harm or death of affected organisms through exhaustion, starvation, asphyxiation, and descaling. Death from impingement can occur immediately or subsequently after an organism is returned to the waterbody as it succumbs to physical damage.

Entrainment occurs when organisms are drawn through the cooling water intake structure into the cooling system. Organisms that become entrained are normally relatively small aquatic organisms, including early life stages of fish and shellfish. Many of these small organisms serve as prey for larger organisms higher on the food chain which tend to be commercially and recreationally desirable species. As entrained organisms pass through a facility's cooling system they are subject to mechanical, thermal, and sometimes chemical stress. Sources of such stress include physical impacts in the pumps and condenser tubing, pressure changes caused by diversion of the cooling water into the plant or by the hydraulic effects of the condensers, sheer stress, thermal shock in the condenser and discharge tunnel, and chemical toxic effects from antifouling agents such as chlorine. Like death from impingement, death from entrainment can occur immediately or subsequently after an organism is returned to the waterbody as it succumbs to the damage from the stresses encountered as it passed through the cooling water system. It is EPA's position that the current state of the science indicates that there is little to no chance of survival for organisms which are entrained by cooling water intake structures. 3 The environmental impacts attributable to impingement and entrainment at individual facilities may result in appreciable losses of early life stages of fish and shellfish, serious reductions in forage species, reductions in recreational and commercial landings, and extensive losses over relatively short intervals of time. EPA estimates that the current number of age one equivalent fish and shellfish killed from impingement and entrainment from cooling water intake structures at the facilities potentially covered by this Phase III proposed rule is over 120 million4 annually.

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

Brayton Point Pacific Gas & Electric's Brayton Point plant ( formerly owned by New England Power Company) is located in Mt. Hope Bay, in the northeastern reach of Narragansett Bay, Rhode Island. To increase electric generating capacity, Unit 4 was switched from closedcycle to once through cooling in 1985. The modification of Unit 4 increased cooling water intake flow by 45 percent. Studies designed to evaluate whether the cooling water intake structure was affecting fish species abundance trends found that Mt. Hope Bay 5 Comparison of Trends in the Finfish Assemblages of Mt. Hope Bay and Narragansett Bay in Relation to Operations of the New England Power Brayton Point Station. Mark Gibson, Rhode Island Division Fish and Wildlife, Marine Fisheries Office, June 1995 and revised August 1996.

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

7 Ibid.

8 Murdoch, W. W., R. C. Fay, and B. J. Mechalas. 1989. Final Report of the Marine Review Committee to the California Coastal Commission. August 1989, MRC Document No. 89 02.

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

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

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

10 November 24, 2004 experienced a progressively steady rate of decline in finfish species of recreational, commercial, and ecological importance. 5 In contrast, species abundance trends were relatively stable in coastal areas and portions of Narragansett Bay that are not influenced by the cooling water intake structure. Further strengthening the evidence that the cooling water intake structure was contributing to the documented declines was the finding that the rate of population decline increased substantially with the full implementation of the once through cooling mode for Unit 4.

San Onofre Nuclear Generating Station The San Onofre Nuclear Generating Station ( SONGS) is located on the coastline of the Southern California Bight, approximately 2.5 miles southeast of San Clemente, California. 6 The marine portions of Units 2 and 3, which are once through, open cycle cooling systems, began commercial operation in August 1983 and April 1984, respectively. 7 Since then, many studies evaluated the impact of the SONGS facility on the marine environment.

At SONGS, in a normal ( non El Niño) year, an estimated 57 tons of fish were killed per year when all units were in operation. 8 Unit 1, which accounted for about 20 percent of total losses, was taken out of operation in November 2002. The fish lost include approximately 350,000 juveniles of white croaker, a popular sport fish; this number represents 33,000 adult individuals or 3.5 tons of adult fish. Within 3 kilometers of SONGS, the density of queenfish and white croaker in shallow water samples decreased by 34 and 36 percent, respectively. Queenfish declined by 50 to 70 percent in deepwater samples. 9 In contrast, relative abundances of bottom dwelling adult queenfish and white croaker increased in the vicinity of SONGS. 10 Increased numbers of these and other bottom dwelling species were believed to be related to the enriching nature of SONGS discharges, which in turn support elevated numbers of prey items for bottom fish. 11 11 November 24, 2004 Additional documented examples of impacts occurring as a result of cooling water intake structures are discussed in the preamble to the proposed Phase III rule and the Technical Development Document.

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

Evidence that a National Regulatory Approach Is Warranted NPDES permitting authorities have codified the requirements of section 316( b) in a variety of ways. In 1993, after evaluating State regulations and statutes relating to section 316( b), EPA determined that of the then 40 States with NPDES permitting authority, the majority did not have statutes or regulations specifically addressing cooling water intake structure( s) in any detail. Exhibit 1 below summarizes some of the State authorities EPA identified that did address cooling water intake structure( s).

States such as California and Florida have developed regulatory requirements that closely mirror the statutory language of section 316( b). Additionally, several other NPDES States have included language in their statutes or regulations referencing either section 316( b) or 40 CFR Part 125, Subpart I, which is the section of the Federal NPDES regulations for criteria applicable to new cooling water intake structures. For example, New Jersey's NPDES regulations state, "[ T] he criteria applicable to cooling water intake structures shall be as set forth in 40 CFR Part 125, Subpart I when the USEPA adopts these criteria." Other States merely restate the statutory language. For example, New York's NPDES regulations require that "[ t] he location, design, construction and capacity of cooling water intake structures, in connection with point source thermal discharges, shall reflect the best technology available for minimizing adverse environmental impact." 12 November 24, 2004 Exhibit 1. Selected NPDES State Statutory/ Regulatory Provisions: Addressing the Impact from Cooling Water Intake Structures NPDES State Citation Summary of Requirements Connecticut RCSA Section 22a, 430 4 Provides for coordination with other Federal/ State agencies with jurisdiction over fish, wildlife, or public health, which may recommend conditions necessary to avoid substantial impairment of fish, shellfish, or wildlife resources New Jersey NJAC Section 7: 14A 11.6 Criteria applicable to intake structure shall be as set forth in 40 CFR Part 125, when EPA adopts these criteria New York 6 NYCRR Section 704.5 The location, design, construction, and capacity of intake structures in connection with point source thermal discharges shall reflect best technology available for minimizing environmental impact Maryland MRC Section 26.08.03 Detailed regulatory provisions addressing best technology available determinations Illinois 35 Ill. Admin. Code 306.201 ( 1998) Requirement that new intake structures on waters designated for general use shall be so designed as to minimize harm to fish and other aquatic organisms Iowa 567 IAC 62.4( 455B) Incorporates 40 CFR part 401, with cooling water intake structure provisions designated " reserved"

California Cal. Wat. Code Section 13142.5( b) Requirements that new or expanded coastal power plants or other industrial installations using seawater for cooling shall use best available site, design technology, and mitigation measures feasible to minimize intake and mortality of marine life In discussions with State and EPA regional contacts, EPA has found that there are numerous issues associated with the lack of a national regulatory approach to implementing section 316( b) requirements. None of the State programs establish national performance standards for best technology available to minimize adverse environmental impact. EPA believes that such national standards promote consistent application of best technology available to minimize adverse environmental impact. EPA particularly believes that national regulations are needed to ensure consistency in determining which facilities are subject to section 316( b) requirements, what environmental impacts would be addressed, which available technologies are best, and how to determine permit requirements that fulfill section 316( b). In addition, many implementation issues require clarification, including but not limited to what data are sufficient to support 316( b) decisions, what is the appropriate scope and focus of 316( b) studies, and what is the appropriate role of practices such as restoration. The existing case by case approach results in high administrative burdens being imposed on applicants and permit writers relative to the final rule. As EPA has discussed at 67 FR 17167, such burdens can be associated with the need to determine in each case whether adverse impacts are occurring, the nature and level of any such impacts, and which design and construction technologies constitute the best technology available to minimize adverse environmental impacts, including consideration of costs and benefits. Further, these case by case approaches 13 November 24, 2004 increase the likelihood that each significant cooling water intake permitting issue becomes a point of contention between the applicant and permit writer, which experience indicates slows the permitting process, makes it more resource intensive, and makes it less effective and more costly. EPA also is aware of varying practices among States. For example, in discussions with State and EPA regional contacts, EPA has found that there are differences in the manner in which States have implemented their section 316( b) authority through the years. Some States and Regions review section 316( b) requirements each time an NPDES permit is reissued. These permitting authorities may re evaluate the potential for impact and whether operations or other conditions influencing the potential for impact have changed at the facility. Other permitting authorities were found to have made initial determinations for facilities in the 1970s but not to have revisited the determinations since.

As discussed above, EPA believes that approaches to implementing section 316( b) vary greatly. It is evident that some authorities have regulations and other program mechanisms in place to ensure continued implementation of section 316( b) and evaluation of the potential impact from cooling water intake structures, while others do not. Furthermore, section 316( b) determinations are currently made on a case by case basis, based on permit writers' best professional judgment. Through discussions with some State permitting officials ( e. g., in California, Georgia, and New Jersey), EPA was asked to establish national standards in order to help ease the case by case burden on permit writers and to promote national uniformity with respect to implementation of section 316( b).

2a( ii). Authority for the Collection Section 316 was included in the Federal Water Pollution Control Act of 1972 for the express purpose of regulating thermal discharges and to address the environmental impact of cooling water intake structures. Moreover, section 316( b) is the only provision in the CWA that focuses exclusively on water intake. Section 316( b) provides that "[ a] ny standard established pursuant to [ CWA section 301] or [ CWA section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." The requirements of section 316( b) are closely linked to several of the core elements ( e. g., sections 301, 304, 306 and 402) of the National Pollutant Discharge Elimination System ( NPDES) permit program established under the CWA. Conditions implementing section 316( b) are and will continue under this rule to be included in NPDES permits issued under section 402 of the CWA.

The proposed Phase III rule implements section 316( b) of the CWA as it applies to Phase III existing manufacturing facilities under § 125.101 and new offshore oil and gas extraction facilities as defined in § 125.133. The proposed rule establishes requirements, reflecting the best technology available for minimizing adverse environmental impact, applicable to the location, design, construction, and capacity of cooling water intake structures at Phase III existing manufacturers and new offshore oil and gas extraction facilities that withdraw cooling water from waters of the U. S. 12 Under the Amended Consent Decree, EPA is to propose regulations in Phase II that are " applicable to, at a minimum: ( i) existing utilities ( i. e., facilities that both generate and transmit electric power) that employ a cooling water intake structure, and whose intake flow levels exceed a minimum threshold to be determined by EPA during the Phase II rulemaking process; and ( ii) existing nonutility power producers ( i. e., facilities that generate electric power but sell it to another entity for transmission) that employ a cooling water intake structure, and whose intake flow levels exceed a minimum threshold to be determined by EPA during the Phase II rulemaking process."

14 November 24, 2004 The proposed Phase III rule is being issued under the authority of sections 101, 301, 304, 306, 308, 316, 401, 402, 501, and 510 of the Clean Water Act ( CWA), 33 U. S. C. 1251, 1311, 1314, 1316, 1318, 1326, 1341, 1342, 1361, and 1370. Today's proposed rule partially fulfills the obligations of the U. S. Environmental Protection Agency ( EPA) under a consent decree in Riverkeeper Inc., et al. v. Leavitt, United States District Court, Southern District of New York, No. 93 Civ. 0314 ( AGS).

The proposed rule partially fulfills EPA's obligation to comply with an Amended Consent Decree. The Amended Consent Decree was filed on November 22, 2000, in the United States District Court, Southern District of New York, in Riverkeeper Inc., et al. v. Leavitt, No. 93 Civ 0314 ( AGS), a case brought against EPA by a coalition of individuals and environmental groups. The original Consent Decree, filed on October 10, 1995, provided that EPA was to propose regulations implementing section 316( b) by July 2, 1999, and take final action with respect to those regulations by August 13, 2001. Under subsequent interim orders and the Amended Consent Decree, EPA has divided the rulemaking into three phases and is working under new deadlines. As required by the Amended Consent Decree, on November 9, 2001, EPA took final action on a rule governing cooling water intake structures used by new facilities ( Phase I). 66 FR 65255 ( December 18, 2001). The Amended Consent Decree also requires that EPA issue a proposed rule by February 28, 2002, ( 67 FR 17121, April 9, 2002) and take final action on this rule by February 16, 2004 ( Phase II). 12 On February 16, 2004 EPA took final action on a rule governing cooling water intake structures used by existing Facilities ( Phase II). 69 FR 41575 ( July 9, 2004). The decree requires further that EPA propose regulations governing cooling water intake structures used, at a minimum, by smaller flow power plants and factories in four industrial sectors ( pulp and paper making, petroleum and coal products manufacturing, chemical and allied manufacturing, and primary metal manufacturing) by November 1, 2004, and take final action by June 1, 2006 ( Phase III).

2b. Practical Utility/ Users of the Data The proposed rule includes both information that would be submitted to permitting authorities and data that would be collected and maintained on site by the facility. Each existing facility and as applicable, each new offshore oil and gas extraction facility, would maintain facility level records of the characterization data, plans, measurements, diagrams, and calculations submitted to the Directors, as well as the analytical results of monitoring actions. Facilities could use the data to: 15 November 24, 2004 ° Characterize environmental conditions and monitor existing cooling water intake structure performance.

° Determine appropriate design and construction technologies, operational, or restoration measures.

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

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

EPA Headquarters uses the information contained in PCS and the NOI databases to develop reports on permit issuance, backlog, and compliance rates. The Agency also uses the information to respond to public and Congressional inquiries, develop and guide its policies, formulate its budgets, assist States in acquiring authority for permitting programs, and manage the NPDES program to ensure national consistency in permitting. States can use this initial permit information along with the additional documentation and the annual reports to track facility monitoring, compliance violations, and enforcement activities.

Permittees would reapply for NPDES permits every five years. The re application process is the primary mechanism for obtaining up to date and new information concerning on site conditions. Although under the proposed rule, existing manufacturing facilities and as applicable, new offshore oil and gas extraction facilities, would provide data from selfmonitoring activities in biannual and annual reports, respectively, to the permitting authority, these reports are a less comprehensive information gathering process than the permit application process. EPA and States would use re application data to identify new species at risk or other potential concerns that could lead the permit writers to take the following actions:

° Specify additional permit limitations.

° Assess compliance with applicable standard requirements.

° Place appropriate special conditions in permits.

Environmental and citizen groups are expected to use the data collected under the proposed rule to independently assess impingement and entrainment rates for affected water bodies in their location. In addition, the data would be useful for the scientific 16 November 24, 2004 community for assessing the impact of cooling water intake structure( s) on recreational and commercial fisheries productivity and aquatic ecosystem health. 17 November 24, 2004 3. Nonduplication, Consultations, and Other Collection Criteria The following sections verify and affirm that this Information Collection Request satisfies the Office of Management and Budget's data collection guidelines, has public support, and does not duplicate another collection.

3a. Nonduplication Given that the Phase III proposed rule applies to existing facilities as well as to new offshore oil and gas extraction facilities , current data sources may already exist for the information required under the today's proposed rule. Therefore, it was important that EPA review existing data sources to identify currently available information on entities subject to section 316( b) regulation and to ensure that the data requested by the proposed rule are not otherwise accessible. Data sources reviewed included: data collected by offices within EPA; data, reports, and analyses published by other Federal agencies; reports and analyses published by industry; and publicly available financial information compiled by government and private organizations. From this effort, EPA has determined that the information collection and reporting requirements considered in this ICR are not contained or duplicated in other routinely collected documents or reports.

3b. Public Notice Required Prior to ICR Submission to OMB A summary of the ICR for the proposed Phase III rule will be included in the proposal with a request for comment, which has a projected publication date in the Federal Register of November 24, 2004.

3c. Consultations EPA worked extensively with stakeholders from the industry, public interest groups, State agencies, and other Federal agencies in the development of this proposed rule. EPA included industry groups, environmental groups, and other government entities in the development, testing, refinement, and completion of the section 316( b) survey, which was used as a primary source of data for the Phase III proposed rule. As discussed in section III of today's preamble, the survey, " Information Collection Request, Detailed Industry Questionnaires: Phase II Cooling Water Intake Structures & Watershed Case Study Short Questionnaire," was initiated in 1997, and was used to collect data during 1998. EPA conducted two public meetings on section 316( b) issues. In June of 1998, EPA conducted a public meeting focused on a draft regulatory framework for assessing potential adverse 18 November 24, 2004 environmental impact from impingement and entrainment. 63 FR 27958 ( May 21, 1998). A second public meeting was held in September of 1998, and focused on technology, cost, and mitigation issues. 63 FR 40683 ( July 30, 1998). In addition, in September of 1998, and April of 1999, EPA participated in technical workshops sponsored by the Electric Power Research Institute on issues relating to the definition and assessment of adverse environmental impact. EPA also participated in other industry conferences, and has met with representatives of industry and environmental groups.

In the months leading up to publication of the proposed Phase I rule, EPA conducted a series of stakeholder meetings to review the draft regulatory framework for the proposed rule and invited stakeholders to provide their recommendations. Participants included representatives of the electric power industry, as well as the petroleum refining, pulp and paper, and iron and steel industries. EPA also met with environmental groups, States, and interstate groups. After publication of the proposed Phase I rule, EPA continued to meet with stakeholders. Summaries of these meetings are in the docket. EPA also received many comments on the Phase I proposed rule ( 65 FR 49059, August 10, 2000) and Notice of Data Availability ( NODA). ( 66 FR 28853, May 25, 2001). These comments informed the development of the Phase II rule and this Phase III proposed rule.

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

On May 23, 2001, EPA held a day long forum to discuss specific issues associated with the development of regulations under section 316( b) of the Clean Water Act. 66 FR 20658 ( April 24, 2001). At the meeting, 17 experts from industry, public interest groups, States, and academia reviewed and discussed the Agency's preliminary data on cooling water intake structure technologies that are in place at existing facilities and the costs associated with the use of available technologies for reducing impingement and entrainment. Over 120 people attended the meeting.

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

During development of the Phase I and Phase II rules, EPA coordinated with the Nuclear Regulatory Commission ( NRC) to ensure that there would not be a conflict with NRC safety requirements. NRC reviewed the proposed Phase II rule and did not identify any apparent conflict with nuclear plant safety. NRC licensees would continue to be obligated to meet NRC requirements for design and reliable operation of cooling systems. NRC recommended that EPA consider adding language which states that in cases of conflict between an EPA requirement and an NRC safety requirement, the NRC safety 19 November 24, 2004 requirement takes precedence. EPA added language to address this concern in the Phase II final rule and this proposed rule.

EPA sponsored a Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms, on May 6   7, 2003. This symposium brought together professionals from Federal, State, and Tribal regulatory agencies; industry; environmental organizations; engineering consulting firms; science and research organizations; academia; and others concerned with mitigating harm to the aquatic environment by cooling water intake structures. Efficacy and costs of various technologies to mitigate impacts to aquatic organisms from cooling water intake structures, as well as research and other future needs, were discussed.

EPA also conducted Phase III specific data collection activities, including a study of entrainment at manufacturing facilities, contacting Phase III facilities to request biological studies and conducting an industry survey of offshore oil and gas extraction facilities and seafood processing vessels.

Finally, EPA formed a Small Business Advocacy Review ( SBAR) panel to provide information to small entities and receive feedback during the Phase III rulemaking process. EPA hosted two outreach meetings: the Phase III Cooling Water Intake Structure Outreach Meetings for Small Entities on January 22, 2004, and March 16, 2004. The information gathered from the participating businesses during these outreach meetings and subsequent correspondence was consolidated into a final report on April 27, 2004. Results of the final report were presented to the EPA Administrator, and considered in this proposed Phase III rule.

3d. Effects of Less Frequent Collection EPA has concluded that less frequent data collection may fail to identify in a timely manner adverse environmental impact resulting from the operation of existing cooling water intake structure( s). In addition, less frequent collection would also hinder the ability of EPA, States, and facility operators to take advantage of technological improvements in impingement and entrainment technologies as they occur, or to track long term trends.

3e. General Guidelines The information collection requirements of the proposed rule are in accordance with the Paperwork Reduction Act guidelines at 5 CFR 1320.5( d)( 2). Requests for supplemental information for the purposes of emergency response or enforcement activities are exempt from the Paperwork Reduction Act requirements. 20 November 24, 2004 3f. Confidentiality Applications for an NPDES permit may contain confidential business information. However, EPA does not consider the specific information being requested by the proposed rule to be typical of confidential business or personal information. If a respondent does consider this information to be of a confidential nature, the respondent may request that such information be treated as such. All confidential data will be handled in accordance with 40 CFR § 122.7, 40 CFR Part 2, and EPA's Security Manual Part III, Chapter 9, dated August 9, 1976.

3g. Sensitive Questions The proposed Phase III rule does not require respondents to divulge information pertaining to private or personal information, such as sexual behavior or religious beliefs. Therefore, this section is not applicable. 21 November 24, 2004 4. The Respondents and the Information Requested 4a. Respondents/ SIC The applicability criteria of the Phase III proposed rule at § 125.101 defines an existing manufacturer as a Phase III existing facility subject to this proposed regulation if it is a point source that uses or proposes to use a cooling water intake structure, is an existing facility other than a Phase II existing facility, has at least one cooling water intake structure that uses at least 25 percent of the water it withdraws ( measured on an average annual basis) for cooling purposes, and has a design intake flow equal or in excess one of the three proposed threshold values of 50 MGD for all waterbodies; 200 MGD for all waterbodies and 100 MGD for certain waterbodies. The definitions provided under § 125.133 of the proposed rule ( amending the definitions at § 125.83) include new offshore oil and gas extraction facilities. Applicability criteria are found at § 125.134 for new offshore oil and gas extraction facilities. Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier ( or multiple suppliers) of cooling water if the supplier or suppliers withdraw( s) water from waters of the United States. Use of cooling water does not include obtaining cooling water from a public water system or use of treated effluent that otherwise would be discharged to a water of the United States.

Typically, respondents under the Phase III proposed rule include existing manufacturers and new offshore oil and gas extraction facilities because they are associated with large cooling water needs. Facilities in manufacturer categories are classified under the following Standard Industrial Classification ( SIC) codes: Paper and Allied Products: 2611, 2621, 2631 and 2676; Chemical and Allied Products: 28 ( except 2895, 2893, 2851 and 2879); Petroleum and Coal Products: 2911 and 2999 and Primary Metals: 3312, 3313, 3315 through 3317, 3334, 3339, 3353, 3363, 3365, and 3366. Offshore oil and gas extraction facilities are classified under SIC codes 1311 and 1321. SIC Codes are provided in Exhibit 2. 22 November 24, 2004 Exhibit 2. Industry Categories and SIC Codes for Phase III Proposed Rule Respondent Industry Categories SIC Codes Manufacturers SIC Major Groups: 26, 28, 29 and 33 Paper and Allied Products 2611, 2621, 2631 and 2676 Chemical and Allied Products 28 ( except 2895, 2893, 2851 and 2879)

Petroleum and Coal Products 2911 and 2999 Primary Metals 3312, 3313, 3315 through 3317, 3334, 3339, 3353, 3363, 3365, and 3366 Offshore and Coastal Oil and Gas Exploration SIC Major Group 13 Offshore Oil and Gas Extraction Facilities 1311 and 1321 4b. Information Requested The following sections provide details on data items requested and associated activities that the proposed rule would require respondents to undertake. The two principal respondent categories are facilities subject to the proposed rule and NPDES program Directors ( i. e., States and Territories authorized under CWA section 402( b) to administer the NPDES permit program, and EPA regional offices).

Information requirements for Phase III existing facilities would differ depending on the compliance alternative selected by the applicant. As discussed in Section 1, five compliance alternatives would be available to an existing facility. Certain information requirements would be applicable to all existing permitted facilities to which the proposed rule applies, other information requirements apply based on the compliance alternative selected. New offshore oil and gas extraction facilities would submit information consistent with § 125.136 of the proposed rule.

Since section 316( b) standards are implemented through NPDES permits, the section 316( b) Phase III proposed rule would affect Directors in a manner similar to other changes to NPDES program requirements. There are currently 45 States and one Territory authorized under CWA section 402( b) to implement the NPDES permit program, these new cooling water intake structure requirements potentially affect authorized State NPDES programs. To be consistent with today's proposed rule, States would revise their current regulations or may demonstrate to the Administrator that the State has adopted alternative regulatory requirements that will result in environmental performance within a watershed that is comparable to the reductions of impingement mortality and entrainment that would otherwise be achieved by the requirements of § 125.103. Implementation of the Phase III proposed regulations would begin upon promulgation of the final rule. 23 November 24, 2004 4b( i). Data Items, Including Record Keeping Requirements Data items that would be required by today's proposed rule would be gathered for either record keeping or reporting purposes. There are several data items that would be collected only during the year( s) prior to the beginning of each permit cycle, and others that are required to be collected on an annual basis. A discussion of all reporting requirements follows below.

Reporting Requirements Phase III existing facilities would report the information required under paragraphs ( r)( 2), ( 3), and ( 5) of § 122.21 and § 125.104 with their application. At the time a Phase III existing facility submits its NPDES permit renewal application ( approximately 180 days prior to expiration of its current permit, in accordance with § 122.21( d)( 2)), the proposed rule requires the facility to submit information demonstrating that it is employing, or will employ best technology available for its cooling water intake structure to minimize adverse environmental impact in compliance with section 316( b) of the CWA. The information will be used to identify which of the requirements in the rulemaking apply to the facility, how the facility is meeting these requirements, and whether the facility is meeting the goal of minimizing adverse environmental impact. Three types of information are required to be included in the NPDES permit applications for all Phase III existing facilities:

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

2. Cooling water intake structure data, as required under § 122.21( r)( 3). Facilities are required to submit information on the intake structure design and operation and the facility's water balance to evaluate the potential for impingement and entrainment of aquatic organisms. Information on the design of the intake structure and its location in the water column allows EPA to evaluate which species or life stages would potentially be subject to impingement and entrainment. Information on the operation of the intake structure and a diagram of the facility's water balance would be used to identify the proportion of intake water used for cooling, make up, and process water, and to evaluate whether the effects of the intake would be continuous, intermittent or seasonal. The water balance diagram also would provide a picture of the total flow in and out of the facility, allowing EPA to evaluate compliance with the flow reduction requirements for intakes located on estuaries/ tidal rivers or oceans. 24 November 24, 2004 3. Cooling water system data, as per requirements under § 122.21( r)( 5). Facilities are required to submit cooling water system data in accordance with § 122.21( r)( 5) for the purpose of evaluating the relationship between the cooling water system and the associated intake( s) and determining whether the facility uses at least 25 percent of the water it withdraws for cooling purposes.

Like Phase III existing facilities, new offshore oil and gas extraction facilities would also need to submit source water physical data and cooling water intake data. They would submit data required under § 122.21( r)( 2), ( 3), and ( 4), and velocity information, source waterbody flow information, and a Design and Construction Technology Plan as required under § 125.136( b) for Track I applications or data required under § 122.21( r)( 2), ( 3), and ( 4), and Comprehensive Demonstration Study and source waterbody flow information as required under § 125.136( c) for Track II applications.

Depending on the compliance alternative selected, an existing facility may also need to conduct a Comprehensive Demonstration Study ( Study) as stipulated under § 125.104( b)( 1) through § 125.104( b)( 7) as applicable, for the selected compliance alternative. The Study would be necessary to characterize the source water baseline in the vicinity of the intake, characterize the operation of the cooling water intake, and confirm that the technology( ies), operational measures, and restoration measures proposed and/ or implemented at the intake meet the applicable requirements of § 125.103.

The Study includes the following components:

1. A proposal for information collection [ § 125.104( b)( 1)],

2. Source waterbody flow information [ § 125.104( b)( 2)],

3. An Impingement Mortality and/ or Entrainment Characterization Study [ § 125.104( b)( 3)],

4. Technology compliance and assessment information [ § 125.104( b)( 4)],

5. Restoration Plan [ § 125.104( b)( 5)],

6. Information to support site specific determination of best technology available for minimizing adverse environmental impact [ § 125.104( b)( 6)]; and,

7. A Verification Monitoring Plan [ § 125.104( b)( 7)].

New offshore oil and gas extraction facilities under Track I applications may be required to collect the following information:

1. Data required under § 122.21( r)( 2), ( 3), and ( 4) ( Source Water Baseline Biological Characterization Data ( § 122.21( r)( 4)) is not required for mobile offshore drilling units ( MODUs) 25 November 24, 2004 2. Velocity Information ( § 125.136( b)( 1))

3. Source Waterbody Flow Information ( § 125.136( b)( 2))

4. Design and Construction Technology Plan ( § 125.136( b)( 3))

Although the proposed rule does not specifically require source water baseline biological characterization data from MODUs, the Director may request source water physical data from MODUs at his/ her discretion.

New offshore oil and gas extraction facilities under Track II applications may be required to collect the following information:

1. Data required under § 122.21( r)( 2), ( 3), and ( 4) ( Source Water Baseline Biological Characterization Data ( § 122.21( r)( 4)) is not required for MODUs 2. Source Waterbody Flow Information ( § 125.136( c)( 1))

3. Track II Comprehensive Demonstration Study ( § 125.136( c)( 2))

For compliance alternative 5, existing facilities that choose to request site specific determinations of best technology available for minimizing adverse environmental impact, additional information would be required to be included in the NPDES permit application as part of the Study including: ( 1) a comprehensive cost evaluation study, ( 2) a benefits evaluation study ( as appropriate), and ( 3) a site specific technology plan.

New offshore oil and gas extraction facilities would also have an opportunity to conduct a cost to cost test and would be required to submit a comprehensive cost evaluation study and a site specific plan.

In accordance with § 125.104( a)( 2), the facility would submit any applicable portions of the Study, except for the Proposal for Information Collection, and the information required in 40 CFR 122.21( r)( 2), ( 3) and ( 5), with the NPDES permit application. The Proposal for Information Collection is expected to be submitted well in advance of the permit application.

The specific requirements of each component of the Comprehensive Demonstration Study and requirements for new offshore oil and gas extraction facilities are detailed under the Respondent Activities section below.

Annual Reporting Requirements In addition to the one time reporting requirements, facilities would be required to provide the following information to the Director in a biennial status report for manufacturers and annual status report for new offshore oil and gas extraction facilities: 26 November 24, 2004 ° Monitoring records as required by § 125.106( a) and § 125.106( b).

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

° All data used to complete the permit application and show compliance with the requirements.

° Any supplemental information developed under § 125.104.

° Any compliance monitoring data submitted under § 125.105.

4b( ii). Respondent Activities As mentioned above, respondents would include existing manufacturing facilities, new offshore oil and gas extraction facilities and NPDES permit program Directors. Their information collection activities are described below.

Permit Application Activities All facilities and Directors would need to perform start up activities such as: reading the proposed rule, planning for the implementation of the rule, and training staff to perform various tasks necessary to comply with the rule. Activities performed during the permit application process would be performed only once during each ICR period. However, these application activities would be repeated again during the fifth year of the permit cycle as part of the permit renewal process.

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

New offshore oil and gas extraction facilities would be required to submit information consistent with § 122.21( r)( 2), ( 3), and ( 4) and § 125.136 of the proposed rule. Facility 27 November 24, 2004 activities for Phase III existing manufacturing facilities and new offshore oil and gas extraction facilities are presented in Exhibits 3 and 4, respectively. 28 November 24, 2004 Exhibit 3. Facility Activities for Phase III Existing Manufacturing Facilities Activity Name 50 MGD DIF All Waterbodies Option 200 MGD DIF All Waterbodies Option 100 MGD DIF Certain Waterbodies Option Start up Activities Yes Yes Yes Permit Application Activities, Including Source Water Physical Data, Cooling Water System Data and Cooling Water Intake Structure Data Yes Yes Yes Proposal for Collection of Information for Comprehensive Demonstration Study Yes Yes Yes Source Waterbody Flow Information Yes Yes NA Design and Construction Technology Plan Yes Yes Yes Freshwater Impingement Mortality and/ or Entrainment Characterization Study Yes Yes Yes Marine Impingement Mortality and/ or Entrainment Characterization Study Yes Yes Yes Freshwater Pilot Study for Impingement Only Technology Yes Yes Yes Freshwater Pilot Study for Impingement & Entrainment Technology Yes Yes Yes Marine Pilot Study for Impingement Only Technology Yes Yes Yes Marine Pilot Study for Impingement & Entrainment Technology Yes Yes Yes Technology Installation and Operation Plan Yes Yes Yes Verification Monitoring Plan Yes Yes Yes Restoration Plan Yes Yes Yes 29 November 24, 2004 Exhibit 4. Facility Activities for Phase III New Offshore Oil and Gas Extraction Facilities ( Track I Applications)

Activity Name Start up Activities Permit Application Activities, Including Source Water Physical Data, Velocity Information and Cooling Water Intake Structure Data Source Waterbody Flow Information Design and Construction Technology Plan Source Water Baseline Biological Characterization Data Activities that would be required to report on source water physical data include: [ 40 CFR 122.21( r)( 2)] ( For existing manufacturers and new offshore oil and gas extraction facilities)

° Describing the physical configuration of the source waterbody where each cooling water intake structure is located, including areal dimensions, depths, salinity and temperature regimes and providing other documentation that supports the determination of waterbody type;

° Preparing scaled drawings showing the physical configuration of the source waterbody;

° Characterizing and documenting the hydrological and geomorphological features of the source waterbody;

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

° Preparing locational maps; and ° Maintaining copies of these documents as well as copies of any information used in their development for a period of three years after submittal.

Activities that would be required to report on cooling water intake structure data include: [ 40 CFR 122.21( r)( 3)] ( For existing manufacturers and new offshore oil and gas extraction facilities)

° Preparing a narrative description of the configuration of each cooling water intake structure and its location within the waterbody and in the water column; 30 November 24, 2004 ° Measuring and documenting the latitude and longitude of each cooling water intake structure in degrees, minutes, and seconds;

° Developing a narrative that describes the operation of each cooling water intake structure, including design flows, daily hours of operation, number of days of the year in operation, and seasonal changes, if applicable;

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

Activities that would be required to report under source water baseline biological characterization data include: [ 40 CFR 122.21( r)( 4)] ( For new offshore oil and gas extraction facilities only and not for existing manufacturers)

° Characterize the biological community in the vicinity of the cooling water intake structure as well as the operation of the cooling water intake structures ° List of species ( or relevant taxa) in the vicinity of the cooling water intake structure ° Identification and evaluation of primary period of reproduction, larval recruitment, and period of peak meroplankton abundance for relevant taxa ° A description of the likely impact of the cooling water intake structures on the biological community due to impingement and entrainment.

Although the proposed rule does not specifically require source water baseline biological characterization data from MODUs, the Director may request source water physical data from MODUs at his/ her discretion.

Activities that would be required to report the Phase II existing facility cooling water system data include: [ 40 CFR 122.21( r)( 5)] ( For existing manufacturers only and not for new offshore oil and gas extraction facilities)

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

° Producing the necessary engineering calculations and supporting data to support the narrative description; and 31 November 24, 2004 ° Maintaining a copy of the description and information required to support its development for three years after submittal.

Comprehensive Demonstration Study Requirements As discussed previously, depending on the compliance alternative selected, existing facilities would need to complete all or portions of the Comprehensive Demonstration Study. The specific reporting requirements for each component of the Study are discussed below.

Proposal for Information Collection ( For Existing Manufacturing Facilities Only)

The facility would develop and submit a proposal for the collection of information to support the Study. In accordance with § 125.104( b)( 1), this activity includes:

° Developing a description of the proposed and/ or implemented technologies, operational measures, and restoration measures to be evaluated in the Study [ § 125.104( b)( 1)( i)]

° Developing a list and description of any historical studies characterizing impingement and entrainment and/ or the physical and biological conditions in the vicinity of the intakes and their relevance to the proposed Study. If the facility proposes to use existing source waterbody data, the facility would demonstrate the extent to which the data are representative of current conditions, that existing data are sufficient to develop a scientifically valid estimate of impingement and entrainment at the site, and that the data were collected using appropriate quality assurance/ quality control procedures [ § 125.104 ( b)( 1)( ii)];

° Developing a summary of any past or ongoing consultation with appropriate Federal, State and Tribal fish and wildlife agencies that is relevant to the Study and a copy of any written comments received [ § 125.104( b)( 1)( iii)];

° Developing a sampling plan for any new field studies that the facility proposes to conduct. The sampling plan would document all methods and quality assurance procedures for sampling and data analysis. The proposed sampling and data analysis methods would be appropriate for a quantitative survey and would take into account the methods used in other studies performed in the source waterbody. The sampling plan would include a description of the study area ( including the area of influence of the cooling water intake structure), and provide a taxonomic identification of the sampled or evaluated biological assemblages ( including all life stages of fish and shellfish) [ § 125.104( b)( 1)( iv)]; 32 November 24, 2004 ° Facilities seeking a site specific determination of best technology because of costs significantly greater than the benefits of complying with applicable performance standards at the facility, would prepare a description of the methodologies to be used in the facility Benefits Valuation Study, including a description of potential ecological and non use benefits categories and whether evaluating them would be done quantitatively or qualitatively. If the facility plans to conduct a stated preference study to evaluate such benefits, a description of the study plan including such information as target population, sampling strategy, approximate sample size, general survey design, and other relevant information should be included [ § 125.104( b)( 1)( v)], and ° Maintain records of all materials used to develop the proposal for a period of three years after submittal.

Source Waterbody Flow Information ( For Existing Manufacturing Facilities ( with 50 MGD for all waterbodies and 200 MGD for all waterbodies options only) and New Offshore Oil and Gas Extraction Facilities)

As part of the Study, existing facilities with intakes located on freshwater rivers/ streams or lakes/ reservoirs would also submit source waterbody flow information as required under § 125.104( b)( 2) for existing manufacturers and under § 125.136( b) or ( c) for new offshore oil and gas extraction facilities, this includes:

° If the cooling water intake structure is located in a freshwater river or stream, the facility would provide the annual mean flow of the waterbody and any supporting documentation and engineering calculations to support the analysis of whether the facility's design intake flow is greater than five percent of the mean annual flow of the river or stream for purposes of determining applicable performance standards under paragraph § 125.103 ( b). Representative historical data ( from a period of time up to 10 years, if available) would be used; [ § 125.104( b)( 2)( i)]; and ° If the cooling water intake structure is located in a lake ( other than one of the Great Lakes) or a reservoir and the facility proposes to increase its design intake flow, the facility would provide a narrative description of the waterbody thermal stratification, and any supporting documentation and engineering calculations to show that the total design intake flow after the increase will not disrupt the natural thermal stratification and turnover pattern in a way that adversely impacts water quality or fisheries including the results of any consultations with Federal, State, or Tribal fish or wildlife management agencies [ § 125.104( b)( 2)( ii)], and,

° Maintain records of all pertinent documents for a period of three years after submittal.

For new offshore oil and gas extraction facilities, today's proposed rule would also require submission of source waterbody flow information consistent with the requirements at § 125.136( b)( 2). The information would be used to demonstrate to the Director that the facility's cooling water intake structure meets the proportional flow requirements at § 33 November 24, 2004 125.134( b)( 3) and § 125.134( c)( 2). These requirements include specific provisions for facilities located on estuaries or tidal rivers to provide greater protection for these sensitive waters. Specifically, Phase I requires that the total design intake flow over one tidal cycle of ebb and flow must be no greater than one ( 1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level. Calculations and guidance on determining the tidal excursion is found in the preamble to the final Phase I rule at section VII. B. 1. d Impingement Mortality and/ or Entrainment Characterization Study ( For Existing Manufacturing Facilities Only)

As part of the Study, the facility would also perform an Impingement Mortality and/ or Entrainment Characterization Study to provide information to support the development of a calculation baseline for evaluating impingement mortality and entrainment and to characterize current impingement and entrainment. Under § 125.104( b)( 3), the following activities would be required:

° Taxonomic identifications of those species of fish and shellfish and their life stages that are in the vicinity of the intake and are most susceptible to impingement and entrainment [ § 125.104( b)( 3)( i)];

° A characterization of those species of fish and shellfish and any species protected under Federal, State, or Tribal Law ( including threatened or endangered species) identified pursuant to § 125.104( b)( 3)( i), including a description of the abundance and temporal/ spatial characteristics in the vicinity of the intake, based on sufficient data to characterize annual, seasonal and daily variations in impingement mortality and entrainment ( e. g., related to climate/ weather differences, spawning, feeding and water column migration) [ § 125.104( b)( 3)( ii)];

° Documentation of current impingement mortality and entrainment of all life stages of fish and shellfish, and any species protected under Federal, State, or Tribal Law ( including threatened or endangered species) identified pursuant to § 125.104( b)( 3)( i) and an estimate of impingement mortality and entrainment under the calculation baseline. The documentation may include historical data that are representative of the current operation of the facility and of biological conditions at the site. Impingement mortality and entrainment samples to support the calculations required in paragraph § 125.104( b)( 4)( i)( C) and ( b)( 5)( iii) would be collected during periods of representative operational flows for the intake and the flows associated with the samples would be documented [ § 125.104 ( b)( 3)( iii)], and,

° Maintain a copy of the study and the materials required to produce it for three years after submittal. 34 November 24, 2004 Technology Compliance and Assessment Information ( For Existing Manufacturing Facilities and New Offshore Oil and Gas Extraction Facilities)

If the facility chooses to use design and construction technologies or operational measures in whole or in part to meet the requirements of § 125.103, the existing facility would submit, as stipulated under § 125.104( b)( 4)( i), for existing manufacturers and under § 125.134( b)( 4) and/ or ( 5) for new offshore oil and gas extraction facilities, a Design and Construction Technology Plan which includes the following:

° The capacity utilization rate for the facility and supporting data ( including the average annual net generation of the facility ( in Mwh) measured over a five year period ( if available) of representative operating conditions and the total net capability of the facility ( in MW)) and underlying calculations, and an explanation of the technologies and operational measures in place or selected, in accordance with § 125.104( b)( 4)( i);

° A narrative description of the design and operation of all design and construction technologies or operational measures ( existing or proposed), including fish handling and return systems, that the facility has in place or will use to meet the requirements to reduce impingement mortality of those species expected to be most susceptible to impingement, and information that demonstrates the efficacy of the technology or operational measures for those species [ § 125.104( b)( 4)( i)( A)];

° A narrative description of the design and operation of all design and construction technologies or operational measures ( existing or proposed) that the facility has in place or will use to meet the requirements to reduce entrainment of those species expected to be the most susceptible to entrainment, and information that demonstrates the efficacy of the technologies and/ or operational measures for those species [ § 125.104( b)( 4)( i)( B)];

° Calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would be achieved by the technologies and operational measures the facility has selected based on the Impingement Mortality and/ or Entrainment Characterization Study. In determining compliance with the requirements to reduce impingement mortality or entrainment, the facility would first determine the calculation baseline upon which to assess the total reduction in impingement mortality and entrainment. Reductions in impingement mortality and entrainment from this baseline as a result of any design and construction technologies already implemented at the facility should be added to the reductions expected to be achieved by any additional design and construction technologies that will be implemented. Facilities that recirculate a portion of their flow, but do not reduce flow sufficiently to satisfy the compliance option in § 125.103( a)( 1)( i) may take into account the reduction in impingement mortality and entrainment associated with the reduction in flow when determining the net reduction associated with existing technology and operational measures. This estimate would include a site specific evaluation of the suitability of the technologies based on the species that are found at the site, and/ or operational 35 November 24, 2004 measures and may be determined based on representative studies ( i. e., studies that have been conducted at cooling water intake structures located in the same waterbody type with similar biological characteristics) and/ or site specific technology prototype or pilot studies [ § 125.104( b)( 4)( i)( C)];

° Design calculations, drawings, and estimates to support the descriptions required under § 125.104( b)( 4)( i)( A) and ( B) [ § 125.104( b)( 4)( i)( D)], and ° Maintenance of records of all materials used to develop the Design and Construction Technology Plan for a period of three years after submittal.

New offshore oil and gas extraction facilities would be required to submit a Design and Construction Technology Plan consistent with requirements at § 125.136( b)( 3). The Design and Construction Technology Plan would demonstrate that the facility has selected and will implement the design and construction technologies necessary to minimize impingement mortality and/ or entrainment. The Design and Construction Technology Plan would require delineation of the hydrologic zone of influence for the cooling water intake structure; a description of the technologies implemented ( or to be implemented) at the facility; the basis for the selection of that technology; the expected performance of the technology, and design calculations, drawings and estimates to support the technology description and performance. The Agency recognizes that the selection of a specific technology or a group of technologies will depend on the individual facility and waterbody conditions.

Technology Installation and Operation Plan If an existing facility proposes compliance based on the Technology Installation and Operation Plan ( § 125.104( b)( 4)( ii)), then the facility would be required to submit both the Design and Construction Technology Plan and the following:

A list of operational parameters to be monitored and the location of monitoring, and the frequency that they will be monitored, as required under § 125.104( b)( 4)( ii)( A);

A list of activities to optimize efficacy of installed technology and operational measures, as required under § 125.104( b)( 4)( ii)( B); and,

A schedule and methodology for assessing the efficacy of any installed design and construction technologies and operational measures in achieving applicable performance standards, including an adaptive management plan for revising design and construction technologies and/ or operational technologies if your assessment indicates that performance standards are not being achieved ( § 125.104( b)( 4)( ii)( C)). 36 November 24, 2004 Restoration Plan ( For Existing Manufacturing Facilities Only)

If the facility proposes to use restoration measures, the following information, as required under § 125.104( b)( 5) would be submitted:

° A demonstration that the facility has adequately evaluated the use of design and/ or construction technologies and operational measures to meet the performance requirements and an explanation on how the determination that restoration would be more feasible, cost effective, or environmentally desirable was made [ § 125.104( b)( 5)( i)];

° A narrative description of the design and operation of all restoration measures ( existing and proposed) that the facility has in place or will use to produce fish and shellfish [ § 125.104 ( b)( 5)( ii)];

° Quantification of the ecological benefits of the proposed restoration measures. The facility would use information from the Impingement Mortality and Entrainment Characterization Study required in paragraph ( b)( 3) of this section, to estimate the reduction in fish and shellfish impingement mortality and entrainment that would be necessary for the facility to comply with § 125.103( b). The facility would then calculate the production of fish and shellfish that it will achieve with the restoration measures it would or has already installed. The facility would include a discussion of the nature and magnitude of uncertainty associated with the performance of these restoration measures. The facility would also include a discussion of the time frame within which these ecological benefits are expected to accrue [ § 125.104( b)( 5)( iii)];

° Demonstration of compliance with performance standards. If the restoration measures address the same fish and shellfish species identified in the Impingement Mortality and Entrainment Characterization Study ( in kind restoration), the facility would demonstrate that the production of these fish and shellfish from the restoration measures meets the requirements of § 125.103( b). If the restoration measures address fish and shellfish species different from those identified in the Impingement Mortality and Entrainment Characterization Study ( out of kind restoration), the facility would demonstrate that the restoration measures produce ecological benefits substantially similar to or greater than those that would be realized through in kind restoration. Such a demonstration should be based on applicable multi agency watershed restoration plans, site specific peer reviewed ecological studies, and/ or consultation and concurrence of appropriate Federal, State, and Tribal natural resource agencies[ § 125.104( b)( 5)( iv)];

° A plan utilizing an adaptive management method for implementing, maintaining, and demonstrating the efficacy of the restoration measures the facility has selected and for determining the extent to which the restoration measures, or the restoration measures in combination with design and construction technologies and operational measures, have met the applicable performance standards under § 125.103( b) and ( c). 37 November 24, 2004 The plan would include:

A monitoring plan that includes a list of the restoration parameters that would be monitored, the frequency at which the facility will monitor them, and success criteria for each parameter; [ § 125.104( b)( 5)( v)( A)]

A list of activities the facility would undertake to ensure the efficacy of the restoration measures, a description of the linkages between these activities and the items in § 125.104( b)( 5)( iv)( A), and an implementation schedule [ § 125.104( b)( 5)( v)( B)]; and A process for revising the plan as new information including monitoring data, becomes available, if the applicable performance standards under § 125.103 are not being met [ § 125.104( b)( 5)( v)( C)].

° A summary of any past ongoing consultation with appropriate Federal, State, and Tribal fish and wildlife management agencies on the facility's use of restoration measures including a summary of the consultations and a copy of any written comments received as a result of such consultations [ § 125.104( b)( 5)( vi)];

° Design calculations, drawings, and estimates to document that the facility's proposed restoration measures in combination with design and construction technologies and/ or operational measures, or alone, will meet the requirements of § 125.103( b) and ( c)[ § 125.104( b)( 5)( vii)]; and ° If requested by the Director, a peer review of the items submitted by the facility under paragraphs ( b)( 3), ( b)( 5)( i), ( ii), ( iii), ( iv), ( v) and ( vi), and ( b)( 7) of this section. The facility would choose the peer reviewers with the concurrence of the Director and in consultation with EPA and Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by the facility's cooling water intake structure( s). Peer reviewers should have appropriate qualifications ( e. g., in the fields of geology, engineering, and/ or biology) depending upon the materials to be reviewed.][ § 125.104( b)( 5)( viii)]; and,

° Maintain documentation of all materials submitted to support the Restoration Plan for a period of three years.

Information to Support Site specific Determination of Best Technology Available for Minimizing Adverse Environmental Impact If a facility chooses to request a site specific determination of best technology available, the facility would provide, as required under § 125.104( b)( 6), the following additional information with its application: 38 November 24, 2004 ° Comprehensive Cost Evaluation Study. The facility would perform and submit, in accordance with § 125.104( b)( 6)( i), the results of a Comprehensive Cost evaluation Study that includes:

 Engineering cost estimates in sufficient detail to document the costs of implementing design and construction technologies and/ or operational measures, and/ or restoration measures at the facility that would be needed to meet the performance requirements in § 125.103( b) [ § 125.104( b)( 6)( i)( A)]; and,

 A demonstration that the costs documented above significantly exceed those considered by the Administrator for a facility in establishing the applicable performance standards [ § 125.104( b)( 6)( i)( B)];

° Benefits Valuation Study. ( For Existing Manufacturing Facilities Only) If the facility is seeking a site specific determination of best technology available for minimizing adverse environmental impact because of costs significantly greater than the benefits of complying with the otherwise applicable requirements of § 125.103( b) and ( c) at the site, the facility would prepare a Benefits Valuation Study using a comprehensive methodology to fully value the impacts of impingement mortality and entrainment at the site and the benefits achievable by compliance with the applicable requirements of § 125.103. In addition to the valuation estimates, the benefit study would include the following:

 A description of the methodology( ies) used to value commercial, recreational, and ecological benefits ( including any non use benefits, if applicable) [ § 125.104( b)( 6)( ii)( A)];

 Documentation of the basis for any assumptions and quantitative estimates, including a determination of entrainment survival at the facility ( based on a study approved by the Director) [ § 125.104( b)( 6)( ii)( B)];

 An analysis of the effects of significant sources of uncertainty on the results of the study [ § 125.104( b)( 6)( ii)( C)];

 If requested by the Director, a peer review of the items the facility submitted in the Benefits Valuation Study. The facility would choose the peer reviewers with the concurrence of the Director who may consult with EPA and Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by facility's cooling water intake structure. Peer reviewers should have appropriate qualifications depending upon the materials to be reviewed [ § 125.104( b)( 6)( ii)( D)]; and,

 A narrative description of any non monetized benefits that would be realized at the site if the facility was to meet the performance standards and a qualitative 39 November 24, 2004 assessment of magnitude and significance of the benefits [ § 125.104( b)( 6)( ii)( E)].

° Site Specific Technology Plan. Based on the results of the Comprehensive Cost Evaluation Study and possibly the Benefits Valuation Study, the facility would submit a Site Specific Technology Plan to the Director for review and approval. The plan would contain the following information:

 A narrative description of the design and operation of all existing and proposed design and construction technologies, operational measures, and/ or restoration measures that the facility has selected in accordance with § 125.103( a)( 5) [ § 125.104( b)( 6)( iii)( A)];

 An engineering estimate of the efficacy of the proposed and/ or implemented design and construction technologies or operational measures, and/ or restoration measures. This estimate would include a site specific evaluation of the suitability of the technologies or operational measures for reducing impingement mortality and/ or entrainment ( as applicable) of all life stages of fish and shellfish based on representative studies ( e. g., studies that have been conducted at cooling water intake structures located in the same waterbody type with similar biological characteristics) and, if applicable, site specific technology prototype or pilot studies. If restoration measures will be used, the facility would provide an estimate ( where feasible) of the increase in fish and shellfish within the watershed [ § 125.104( b)( 6)( iii)( B)]; and,

 Design and engineering calculations, drawings, and estimates prepared by a qualified professional to support the descriptions required above [ § 125.104( b)( 6)( iii)( C)].

Maintain all records and documentation of site specific studies conducted for a period of at least three years after submittal.

Verification Monitoring Plan ( For Existing Manufacturing Facilities Only)

As part of the Study, the facility would prepare a plan to conduct, at a minimum, two years of monitoring to verify the full scale performance of the proposed or implemented technologies, operational measures and/ or restoration measures. As stipulated in § 125.104( b)( 7), the verification study would begin once the technologies, operational measures and restoration measures are implemented and continue for a period of time that is sufficient to demonstrate that the facility is meeting the national performance standards of § 125.103( b) and ( c). 40 November 24, 2004 The plan would provide the following:

Description of the frequency of monitoring and the parameters to be monitored and the basis for determining the parameters and the frequency and duration for monitoring [ § 125.104( b)( 7)( i)];

A proposal for methods to be used for determining compliance with the performance requirements to reduce impingement mortality and entrainment, including any applicable averaging periods; representative species; etc.; [ § 125.104( b)( 7)( ii)];

A proposal on how naturally moribund fish and shellfish that enter the cooling water intake structure would be identified and taken into account in determining compliance with the performance standards in § 125.103 [ § 125.104( b)( 7)( iii)];

A description of the information to be included in a bi annual status report to the Director [ § 125.104( b)( 7)( iv)], and,

The facility would maintain all documentation supporting the Verification Monitoring Plan for a period of at least three years.

Annual Activities Biological Monitoring All Phase III existing facilities, as appropriate to the compliance alternative selected, would need to monitor both impingement and entrainment of the commercial, recreational and forage base fish and shellfish species and their life stages identified in the Impingement Mortality and/ or Entrainment Characterization Study. The monitoring methods used would be consistent with those used for the Impingement Mortality and/ or Entrainment Characterization Study. For the purposes of this ICR costing, EPA is assuming that the facility would follow the monitoring frequencies identified below for at least two years after the initial permit issuance. After that time, the Director may approve a request for less frequent sampling in the remaining years of the permit term and when the permit is reissued, if supporting data show that less frequent monitoring would still allow for the detection of any seasonal and daily variations in the species and numbers of individuals that are impinged or entrained.

New offshore oil and gas extraction facilities would conduct monitoring as required under § 125.137 of the proposed rule.

For Phase III existing manufacturers, monitoring activities would be required to be conducted in accordance with the Verification Monitoring Plan, the Technology Installation and Operation Plan ( as appropriate), and the Restoration Plan, if relevant. Additional monitoring requirements may be determined by the Director. 41 November 24, 2004 Impingement monitoring involves collecting data on aquatic organisms trapped on the outer part of an intake structure or against screening devices during periods of cooling water withdrawal, to determine the taxa and abundance of impinged organisms. Specific monitoring activities may include:

° Collecting samples to monitor impingement rates for each species over a 24 hour period, no less than once per month when the cooling water intake structure is in operation;

° Enumerating impinged organisms;

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

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

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

° Enumerating entrained organisms;

° Performing statistical analyses to summarize entrainment rates; and ° Maintaining records of entrainment monitoring results for at least three years.

Status Report All Phase III existing manufacturing facilities subject to the proposed rule would be required to prepare and submit a biennial status report that details compliance with requirements set by the proposed rule and with any additional provisions specified within the permit. New offshore oil and gas extraction facilities submit their status report annually. Preparation of the report requires:

° Compiling biological monitoring records for each cooling water intake structure; and ° Maintaining a copy of the report for a period of three years after its submission. 42 November 24, 2004 Director Activities The section 316( b) Phase III proposed rule would not require Directors to prepare or submit any reports, beyond what is currently required of them under the NPDES program. However, Directors would need to review, maintain records of, and make permitting determinations based upon all documents and reports submitted to them by existing facilities.

NPDES program Directors would act to ensure the implementation of the proposed rule as required under § 125.107. Section 316( b) requirements are implemented for a facility through an NPDES permit. To successfully meet their responsibilities, EPA anticipates that Directors will be involved in reviewing application studies and developing permit conditions. Upon rule promulgation, the following activities are expected:

° Reading and understanding the rule;

° Mobilization and planning; and ° Training facility and consultant staff.

Following receipt of a permit application, the Director would conduct the following activities as described in § 125.107( a) and ( b) and below.

Application Activities The Director would determine which of the standards specified in § 125.103 to apply to the facility. In addition, the Director would review materials to determine compliance with the applicable standards. For new offshore oil and gas extraction facilities, the Director would review materials submitted in accordance with § 125.134 of the proposed rule.

If a facility submits a request in accordance with § 125.104( a)( 3) to reduce the information about their cooling water intake structures and the source waterbody required to be submitted in their permit application [ this request is not authorized in the first permit term after promulgation of this rule], the Director would approve the request within 60 days if conditions at the facility and in the waterbody remain unchanged since their previous application.

At each permit renewal, the Director would review the application materials and monitoring data to determine whether requirements for design and construction technologies, operational measures, and/ or restoration measures should be included in the permit to meet the national performance standards in § 125.103.

The Director would review materials submitted by the applicant prior to each renewal period to determine if there have been any changes in facility operations or physical and 43 November 24, 2004 biological attributes of the source waterbody. Any changes should be evaluated to determine the need for additional or more stringent conditions in the permit.

Permitting Activities The Director would determine, based on the information submitted by the existing facility in its permit application, the appropriate requirements and conditions, as described in § 125.107( b)( 1) through § 125.107( b)( 4) to include in the permit based on the compliance alternative in § 125.103( a) selected by the facility. For new offshore oil and gas extraction facilities, the Director would develop permit conditions following the review of the information submitted under § 125.136 of the proposed rule. The Director would perform the following in developing permit conditions:

( 1) Develop Cooling Water Intake Structure Requirements. Requirements that implement the applicable provisions of § 125.103 would be included in the permit conditions. The Director would evaluate the performance of the design and construction technologies, operational measures, and/ or restoration measures proposed and implemented by the facility and require additional or different design and construction technologies, operational measure, and/ or restoration measures, if needed to meet the applicable impingement mortality and entrainment reduction, or production, requirements.

In determining compliance with the performance standards for facilities proposing to increase withdrawals of cooling water from a lake ( other than a Great Lake) or a reservoir in § 125.103( b)( 3), the Director would consider anthropogenic factors ( those not considered " natural") unrelated to the Phase III existing facility's cooling water intake structures that can influence the occurrence and location of a thermocline. Anthropogenic factors may include source water inflows, other water withdrawals, managed water uses, wastewater discharges, and flow/ level management practices ( e. g., some reservoirs release water from deeper bottom layers). The Director would coordinate with appropriate Federal, State, or Tribal fish and wildlife agencies to determine if any disruption of the natural thermal stratification resulting from the increased withdrawal of cooling water is beneficial to the management of fisheries. The Director would also determine whether to impose more stringent conditions to comply with the requirements of other applicable State and Tribal law, or other Federal Law.

To develop appropriate requirements for the cooling water intake structure( s), the Director would do the following:

( i) Review and approve the Design and Construction Technology Plan required in § 125.104( b)( 4) to evaluate the suitability and feasibility of the design and construction technology and/ or operational measures proposed to meet the requirements of § 125.103( b).; 44 November 24, 2004 ( ii) If the facility proposes restoration measures in accordance with § 125.103( c), review and approve the Restoration Plan required under § 125.104( b)( 5) to determine whether the proposed measures, alone or in combination with design and construction technologies and/ or operational measures, will meet the requirements under § 125.103( c);

( iii) In each reissued permit, include a condition in the permit requiring the facility to reduce impingement mortality and entrainment ( or to increase fish production, if applicable) commensurate with the efficacy at the facility of the installed design and construction technologies, operational measures, and/ or restoration measures, but not less than the performance standards in § 125.103;

( iv) If the facility implements design and construction technologies and/ or operational measures and chooses to measure compliance for the first five years ( and second five years if applicable) employing the Technology Installation and Operation Plan in accordance with § 125.104( b)( 4), the Director would review and approve the plan and require the facility to meet the terms of the plan. If the facility implements restorations measures and chooses to measure compliance for the first permit term ( or subsequent permit terms, if applicable) employing a Restoration Plan in accordance with § 125.104( b)( 5), the Director would review and approve the plan and require compliance in accordance with the plan. In considering a permit application, the Director would review the performance of the design and construction technologies, operational measures, and/ or restoration measures implemented and require additional or different design and construction technologies, operational measures, and/ or restoration measures, if needed, to meet the impingement mortality and entrainment reduction, or production, requirements for all life stages of fish and shellfish;

( v) Review and approve the proposed Verification Monitoring Plan submitted under § 125.104( b)( 7) and require that the monitoring continue for a sufficient period of time to demonstrate whether the design and construction technology, operational measures, and/ or restoration measures meet the requirements of § 125.103;

( vi) If a facility requests requirements based on a site specific determination of best technology available for minimizing adverse environmental impact, the Director would review the application materials submitted under § 125.104( b)( 6) and any other information submitted, including quantitative and qualitative benefits, that would be relevant to a determination of whether alternative requirements are appropriate for the facility. If a facility submits a study to support entrainment survival at the facility, the Director would review and approve the results of that study. If the Director determines that alternative requirements are appropriate, the Director would make a site 45 November 24, 2004 specific determination of best technology available for minimizing adverse environmental impact in accordance with § 125.103( a)( 5). The Director would request revisions to the information submitted by the facility in accordance with § 125.104( b)( 6) if it does not provide an adequate basis to make this determination. Any site specific performance standard established based on new and/ or existing design and construction technologies, operational measures, and/ or restoration measures, would achieve an efficacy that is, in the Director's judgement, as close as practicable to, but that does not result in costs that are significantly greater than the costs considered by the Administrator or the benefits of establishing the applicable performance standards in § 125.103( b);

( vii) In developing performance requirements to reduce impingement mortality and entrainment for inclusion in a permit, the Director would review information on proposed methods submitted by the facility under § 125.104( b)( 4)( i)( D) and/ or ( b)( 5)( iv), evaluate those proposed by the facility and other available methods, and specify how compliance with the requirements would be determined including the averaging period for determining the percent reduction or production required by the performance standards and restoration requirements in § 125.103. Compliance for facilities who choose to comply with the Technology Installation and Operation Plan for the first five years ( and second five years, if applicable) after promulgation of this rule, would be determined based on the successful implementation of the plan in accordance with § 125.103( d).

( 2) Develop Monitoring Conditions. The permit would require the facility to perform the monitoring in accordance with the Verification Monitoring Plan required by 125.104( b)( 7), the Technology Installation and Operation Plan in § 125.104( b)( 4)( ii) as appropriate, and if applicable, the Restoration Plan required by § 125.104( b)( 5). The Director would consider the facility's Verification Monitoring Plan, Technology Installation and Operation Plan, and/ or Restoration Plan, as appropriate, in determining additional applicable monitoring requirements in accordance with § 125.105. The Director may modify the monitoring program when the permit is reissued and during the term of the permit based on changes in physical or biological conditions in the vicinity of the cooling water intake structure.

( 3) Require Record Keeping and Reporting. At a minimum, the permit would require the facility to report and keep records specified in § 125.106.

( 4) Approve a Design and Construction Technology ( as appropriate). The Director would conduct the following to approve a design and construction technology:

( i) For a facility that chooses to demonstrate that they have installed and properly operate and maintain a design and construction technology approved in accordance with § 125.108, the Director would review and approve the 46 November 24, 2004 information submitted in the Design and Construction Technology Plan in § 125.104( b)( 4)( i) and determine if they meet the criteria in § 125.108;

( ii) If a person/ facility requests approval of a technology under § 125.108( b), the Director would review and approve the information submitted and determine its suitability for widespread use at facilities with similar site conditions in its jurisdiction with minimal study. The Director would evaluate the adequacy of the technology when installed in accordance with the required design criteria and site conditions to consistently meet the performance requirements in § 125.103. The Director may only approve a technology following public notice and consideration of comment regarding such approval. 47 November 24, 2004 5. The Information Collected   Agency Activities, Collection, Methodology and Information Management The following sections describe EPA activities related to analyzing, maintaining, and distributing the information collected.

5a. Agency Activities EPA is responsible for promulgating the final rule and overseeing its implementation. Implementation of reporting and monitoring requirements would rely extensively on State governments in those States that have authorization under CWA section 402( b) to implement the NPDES permit program. In States that do not have NPDES permitting authority, EPA is responsible for administering the program. Under these circumstances, EPA would perform the same activities as those outlined for Directors in Section 4.

EPA would also be involved in the review of State issued NPDES permits for compliance with today's proposed rule. EPA typically reviews NPDES permits in the early stages of implementation of new regulations. As such, EPA assumes that it would perform a detailed review, make comments, and follow up on comments for the 316( b) portions of State issued NPDES permits, during the first three years after promulgation.

5b. Collection Methodology and Information Management Today's proposed rule provides minimum requirements regarding the type of information collected. Directors of NPDES programs are primarily responsible for determining which collection method and information management strategy is most appropriate. EPA would maintain some of the compliance data in its Permit Compliance System ( PCS) database. PCS is the national computerized management information system that automates entry, updating, and retrieval of NPDES data and tracks permit issuance, permit limits and monitoring data, and other data pertaining to facilities regulated under NPDES. This technology reduces the burden to the permitting authority of gathering, analyzing, and reporting national permit and water quality data.

Permitting authorities are responsible for reviewing permit applications, permits, monitoring reports, etc. to verify the accuracy of the data. Permitting authorities are also responsible for entering that data into PCS. Different authorities have different approaches for entering the data into PCS and different approaches for checking data quality. This includes the use of coding forms, double entry, technical review, etc. Many 48 November 24, 2004 States have developed State databases that are tailored to individual State needs with the system formatted for uploads directly to PCS from the State system. Permit data can be accessed by the public in one of two ways:

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