[Federal Register: December 26, 2002 (Volume 67, Number 248)]
[Rules and Regulations]
[Page 78947-78955]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de02-21]
[[Page 78947]]
-----------------------------------------------------------------------
Part VI
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 125
National Pollutant Discharge Elimination System--Amendment of Final
Regulations Addressing Cooling Water Intake Structures for New
Facilities; Rule and Proposed Rule
[[Page 78948]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 125
[FRL-7430-4]
National Pollutant Discharge Elimination System--Amendment of
Final Regulations Addressing Cooling Water Intake Structures for New
Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Today's direct final rule makes minor changes to EPA's final
rule published December 18, 2001 implementing section 316(b) of the
Clean Water Act (CWA) for new facilities that use water withdrawn from
rivers, streams, lakes, reservoirs, estuaries, oceans or other waters
of the United States for cooling. The December 2001 rule established
national technology-based performance requirements applicable to the
location, design, construction, and capacity of cooling water intake
structures at new facilities. The national requirements establish the
best technology available for minimizing adverse environmental impact
associated with the use of these structures. EPA is making several
minor changes to the December 2001 rule because, in several instances,
the final rule text does not reflect the Agency's intent.
DATES: This direct final rule is effective on March 26, 2003 without
further notice, unless EPA receives adverse written comment by January
27, 2003. If EPA receives such comment, it will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that this rule will not take effect.
ADDRESSES: Comments may be submitted electronically, by mail, or
through hand delivery/courier. Follow the detailed instructions as
provided in Unit I.B. of the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Martha Segall, USEPA Office of Water
by phone at (202) 566-1041 or by e-mail at rule.316b@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
This direct final rule applies to new greenfield and stand-alone
facilities that use cooling water intake structures to withdraw water
from waters of the U.S. and that have or require a National Pollutant
Discharge Elimination System (NPDES) permit issued under section 402 of
the CWA. New facilities subject to this regulation include those that
have a design intake flow of greater than two (2) million gallons per
day (MGD) and that use at least twenty-five (25) percent of water
withdrawn for cooling purposes. Today's rule does not apply to existing
facilities, major modifications to existing facilities that would be
``new sources'' under 40 CFR 122.29(b) as that term is used in the
effluent guidelines and standards program, or facilities that employ
cooling water intake structures in the offshore oil and gas extraction
point source category as defined under 40 CFR 435.10 and 40 CFR 435.40.
The following table is not intended to be exhaustive; rather, it
provides a guide for readers regarding entities likely to be regulated
by this action. The table lists the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether your facility is regulated by this action, you should carefully
examine the applicability criteria at 40 CFR 125.81. If you have
questions about the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
----------------------------------------------------------------------------------------------------------------
Standard
Industrial North American INdustry Codes
Category Examples of Regulated Entities Classification (NAIC)
Codes
----------------------------------------------------------------------------------------------------------------
Federal, State and Local Operators of steam electric 4911 and 493... 221111, 221112, 221113, 221119,
Government. generatingpoint source 221121, 221122, 221111, 221112,
dischargers that employ 221113, 221119, 221121, 221122
cooling water intake
structures.
Industry.................... Operators of industrial point See below...... See below
source dischargers that
employ cooling water intake
structures..
Steam electric generating..... 4911 and 493... 221111, 221112, 221113, 221119,
221121, 221122, 221111, 221112,
221113, 221119, 221121, 221122
Agricultural production....... 0133........... 111991, 11193
Metal mining.................. 1011........... 21221
Oil and gas extraction 1311, 1321..... 211111, 211112
(Excluding offshore and
coastal subcategories).
Mining and quarrying of 1474........... 212391
nonmetallic minerals.
Food and kindred products..... 2046, 2061, 311221, 311311, 311312, 311313,
2062, 2063, 311222, 311225, 31214
2075, 2085.
Tobacco products.............. 2141........... 312229, 31221
Textile mill products......... 2211........... 31321
Lumber and wood products, 2415, 2421, 321912, 321113, 321918, 321999,
except furniture. 2436, 2493. 321212, 321219
Paper and allied products..... 2611, 2621, 3221, 322121, 32213, 322121,
2631, 2676. 322122, 32213, 322291
Chemical and allied products.. 28 (except 325 (except products 325182,
2895, 2893, 32591, 32551, 32532)
2851, and
2879).
Petroleum refining and related 2911, 2999..... 32411, 324199
industries.
Rubber and miscellaneous 3011, 3069..... 326211, 31332, 326192, 326299
plastics products.
Stone, clay, glass, and 3241........... 32731
concrete products.
[[Page 78949]]
Primary metal industries...... 3312, 3313, 324199, 331111, 331112, 331492,
3315, 3316, 331222, 332618, 331221, 22121,
3317, 3334, 331312, 331419, 331315, 331521,
3339, 3353, 331524, 331525
3363, 3365,
3366.
Fabricated metal products, 3421, 3499..... 332211, 337215, 332117, 332439,
except machinery and 33251, 332919, 339914, 332999
transportation equipment.
Industrial and commercial 3523, 3531..... 333111, 332323, 332212, 333922,
machinery and computer 22651, 333923, 33312
equipment.
Transportation equipment...... 3724, 3743, 336412, 333911, 33651, 336416
3764.
Measuring, analyzing, and 3861........... 333315, 325992
controlling instruments;
photographic, medical, and
optical goods; watches and
clocks.
Electric, gas, and sanitary 4911, 4931, 221111, 221112, 221113, 221119,
services. 4939, 4961. 221121, 221122, 22121, 22133
Educational services.......... 8221........... 61131
Engineering, accounting, 8731........... 54171
research, management and
related services.
----------------------------------------------------------------------------------------------------------------
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2002-0052. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
The official public docket is the collection of materials that is
available for public viewing at the Water Docket in the EPA Docket
Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The EPA Docket Center Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Water Docket is (202) 566-
2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as confidential business information (CBI) and
other information whose disclosure is restricted by statute, which is
not included in the official public docket, will not be available for
public viewing in EPA's electronic public docket. EPA's policy is that
copyrighted material will not be placed in EPA's electronic public
docket but will be available only in printed, paper form in the
official public docket. To the extent feasible, publicly available
docket materials will be made available in EPA's electronic public
docket. When a document is selected from the index list in EPA Dockets,
the system will identify whether the document is available for viewing
in EPA's electronic public docket. Although not all docket materials
may be available electronically, you may still access any of the
publicly available docket materials through the docket facility
identified in Unit I.A.1. EPA intends to work towards providing
electronic access to all of the publicly available docket materials
through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. Please submit with your comments any references cited
in your comments. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments; however, late comments may be
considered if time permits. If you wish to submit CBI or information
that is otherwise protected by statute, please follow the instructions
in Unit I.C. Do not use EPA Dockets or e-mail to submit CBI or
information protected by statute.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact
[[Page 78950]]
information in the body of your comment. Also include this contact
information on the outside of any disk or CD ROM you submit, and in any
cover letter accompanying the disk or CD ROM. This ensures that you can
be identified as the submitter of the comment and allows EPA to contact
you in case EPA cannot read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. If EPA cannot
read your comment due to technical difficulties and cannot contact you
for clarification, EPA may not be able to consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OW-
2002-0052. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to OW-
Docket@epa.gov, Attention Docket ID No. OW-2002-0052. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Unit 1.B.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send an original and three (3) copies of your comments
to the ``Water Docket,'' U.S. Environmental Protection Agency,
Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460,
Attention Docket ID No. OW-2002-0052.
3. By Hand Delivery or Courier. Deliver your comments to: Water
Docket, EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave.,
NW, Washington, DC, Attention Docket ID No. OW-2002-0052. Such
deliveries are only accepted during the Docket's normal hours of
operation as identified in Unit 1.A.1.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send information identified as CBI by mail only to the following
address: Office of Science and Technology, Mailcode 4303T, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention: Martha Segall/Docket ID No. OW-2002-
0052.
You may claim information that you submit to EPA as CBI by marking
any part or all of that information as CBI (if you submit CBI on disk
or CD ROM, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is CBI). Information so marked will not be disclosed
except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
II. Legal Authority, Purpose and Scope of Today's Direct Final Rule
On December 18, 2001, EPA published a final rule implementing
section 316(b) of the Clean Water Act (CWA) for new facilities that use
water withdrawn from rivers, streams, lakes, reservoirs, estuaries,
oceans or other waters of the United States for cooling purposes. EPA
often refers to the final rule implementing section 316(b) for new
facilities as the ``Phase I rule'' (this term is used to avoid
confusion with other phases of the section 316(b) rulemaking that cover
existing facilities). The legal authority, background, and basis for
the Phase I rule are discussed in the Federal Register notice and in
the record for the rule. See 66 FR 65256, December 18, 2001. EPA
reviewed the final rule text and believes that the regulatory language
did not correctly reflect its intent with respect to three issues. EPA
is, therefore, making several minor changes to the regulatory text.
This document does not reopen the final rule in any respect other than
the changes discussed here. EPA does not solicit comment on any issues
except for the three discrete ones discussed here.
III. Discussion of Direct Final Rulemaking
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no adverse comment
since we are correcting technical errors and not otherwise amending the
regulatory text of the December 2001 Phase I final rule. However, in
the ``Proposed Rules'' section of today's Federal Register, we are
publishing a separate document that will serve as the proposal to amend
the Phase I final rule if adverse comments are filed. This rule will be
effective on March 26, 2003 without further notice unless we receive
adverse comment by January 27, 2003. If EPA receives adverse comment on
one or more distinct amendment(s), paragraph(s), or section(s) of this
rulemaking, the Agency will publish a timely withdrawal in the Federal
Register indicating which provisions will become effective and which
provisions are being withdrawn due to adverse comment. Any distinct
amendment, paragraph, or section of today's rulemaking for which we do
not receive adverse comment will become effective on the date set in
this direct final rule, notwithstanding any adverse comment on any
other distinct amendment, paragraph or section of today's rule. If
adverse comment is received, we will address all public comments in a
subsequent final rule. We will not institute a second comment period on
this action. Any parties interested in commenting must do so at this
time.
IV. Corrections to Regulatory Text
A. Velocity Monitoring
The first revision to the regulatory text relates to velocity
monitoring. In the final rule for cooling water intake
[[Page 78951]]
structures at new facilities, EPA required monitoring velocity at
cooling water intake structures at least once per quarter. In
monitoring velocity, facilities that employ surface intake screens are
required to monitor head loss across the intake screens at the
``minimum ambient source water surface elevation.'' EPA qualified that
language in the requirement by adding a parenthetical phrase that would
allow the minimum ambient source water surface elevation to be
determined using the Director's best professional judgment based on
available hydrological data. See 40 CFR 125.87(b). However, EPA also
defined ``minimum ambient source water surface elevation'' at 40 CFR
125.83 to mean ``the elevation of the 7Q10 flow for freshwater streams
or rivers; the conservation pool level for lakes or reservoirs; or the
mean low tidal water level for estuaries or oceans.'' EPA further
defined each of these low flows in terms of a temporal and hydrological
basis. See 66 FR 65339, December 18, 2001.
EPA understands that ambient source water surface elevations
fluctuate through time, and it would be difficult, if not unfeasible,
to coordinate the measurements of head loss to the time when these
minimum ambient source water surface elevations were occurring in the
waterbody. It was EPA's intent that the velocity be measured at a time
that is predicted, based on knowledge of the hydrology of the
waterbody, to be a time of reasonable low flow representative of the
low surface elevations that might occur during the months that comprise
each quarter. For example, in tidal waters the velocity measurement
should be taken at a low tide. If tide tables and/or other records
indicate that the surface elevations in a particular month are
typically lower than in other months, the facility should measure
intake velocity at one of the lowest predicted tides during that
particular month. In reservoirs where water levels are drawn down at
certain parts of the year, the facility should measure intake velocity
immediately after a drawdown or release has occurred. In freshwater
rivers and streams, the facility should measure intake velocity during
the month that typically has the lowest flows. Such monitoring should
occur at a time when flows are not temporarily elevated due to recent
storm events. The Director should determine and specify the appropriate
time of measurement in the facility's NPDES permit based on available
existing hydrological information and information submitted by the
owner of the facility with its permit application. Accordingly, to
conform the regulatory text to EPA's intent, EPA believes that the
regulatory language at 40 CFR 125.87 is sufficient and that the
definition of ``minimum ambient source water surface elevation'' is no
longer needed. Therefore, today's action will only delete the
definition of ``minimum ambient source water surface elevation'' at 40
CFR 125.83.
B. Director's Authority To Require Additional Design and Construction
Technologies or Operational Measures in Track I
The second set of revisions to the regulatory text relate to the
Director's authority to require additional design and construction
technologies or operational measures in Track I. There are five
provisions at issue: 40 CFR 125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii),
(c)(3)(ii), and (c)(3)(iii). Four of these provisions specify
circumstances where design and construction technologies or operational
measures for minimizing impingement mortality of fish and shellfish are
required. At 40 CFR 125.84(b)(4)(ii) and (c)(3)(ii), facilities are
required to select and implement design and construction technologies
or operational measures for minimizing impingement mortality of fish
and shellfish if ``There are migratory and /or sport or commercial
species of impingement concern to the Director or any fishery
management agency(ies), which pass through the hydraulic zone of
influence of the cooling water intake structure.'' The language should
have read, ``Based on information submitted by any fishery management
agency(ies) or other relevant information, there are migratory and/or
sport or commercial species of impingement concern to the Director that
pass through the hydraulic zone of influence of the cooling water
intake structure.'' Paragraphs (b)(4)(iii) and (c)(3)(iii) require a
facility to select and implement design and construction technologies
or operational measures for minimizing impingement mortality if ``It is
determined by the Director or any fishery management agency(ies)...''
The language should have read, ``It is determined by the Director,
based on information submitted by any fishery management agency(ies) or
other relevant information, that....'' The fifth provision, paragraph
(b)(5)(ii), addresses circumstances where design and construction
technologies or operational measures are required for minimizing
entrainment of entrainable life stages of fish and shellfish. The
language used in this provision was similar to that in paragraphs
(b)(4)(ii), (b)(4)(iii), (c)(3)(ii), and (c)(3)(iii) and therefore
requires similar corrections.
All of these revisions are necessary because the decision of what
to require under section 316(b) of the CWA belongs to the Director.
Although EPA did not intend to delegate the decisionmaking to another
agency, the Director may obtain information from another agency to make
a decision. Therefore, today's action amends the requirements at 40 CFR
125.84(b)(4)(ii), (b)(4)(iii), (b)(5)(ii), (c)(3)(ii), and (c)(3)(iii)
to reflect the intent that the information of another agency informs
the decision of the Director.
C. Deletion of Inappropriate Cross Reference in the Alternative
Requirements Section
The third issue relates to drafting errors in the alternative
requirements section of the rule. The regulation at 40 CFR 125.85 in
paragraphs (a)(2) and (3) currently refers to local water resources
``not addressed under Sec. 125.84(d)(1)(i)'' intending to refer to
local water resource issues other than impingement or entrainment.
Cross-referencing this other section of the regulations is not
technically correct, however, because subsection (d) of Sec. 125.84 is
part of Track II while the alternative requirements provision applies
to either Track I or Track II. Therefore, this action deletes the
reference to 40 CFR 125.84(d)(1)(i) and substitutes language
referencing ``significant adverse impacts on local water resources
other than impingement or entrainment.'' Similarly, to eliminate any
uncertainty regarding applicability of the alternative requirements
provision at Sec. 125.85 to the Track II performance requirements at
Sec. 125.84(d), this action deletes Sec. 125.84(d)(ii) because it is
unnecessary and confusing.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Reviews
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector or the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
[[Page 78952]]
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule merely makes three minor technical revisions to the December
2001 Phase I final regulations for cooling water intake structures.
These minor changes will clarify the Agency's intent on velocity
monitoring, authority to require additional design and construction
technologies, and procedures for seeking less stringent alternative
requirements. It would affect the same facilities as the December 2001
rule, would have no additional costs or benefits beyond those already
projected, and would not reduce the level of environmental protection
projected.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandates that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector, in any one year. This rule merely makes three minor technical
revisions to the December 2001 Phase I final regulations for cooling
water intake structures. These minor changes will clarify the Agency's
intent on velocity monitoring, authority to require additional design
and construction technologies, and procedures for seeking less
stringent alternative requirements. It would affect the same facilities
as the December 2001 rule, would have no additional costs or benefits
beyond those already projected, and would not reduce the level of
environmental protection projected. Thus, today's rule is not subject
to the requirements of section 202 and 205 of the UMRA. For the same
reasons, EPA has also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, today's rule is not subject to the requirements of
section 203 of the UMRA.
D. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business based on the
Small Business Administration's size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impact of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This direct
final rule does not substantively change the December 18, 2001 Phase I
final rule (66 FR 65256), nor does it impose a significant economic
impact on a substantial number of small entities. This rule merely
makes three minor technical revisions to the December 2001 rule for
cooling water intake structures. These minor changes will clarify the
Agency's intent on velocity monitoring, authority to require additional
design and construction technologies, and procedures for seeking less
stringent alternative requirements. It would affect the same facilities
as the December 2001 rule, would have no additional costs or benefits
beyond those already projected, and would not reduce the level of
environmental protection projected.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
[[Page 78953]]
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This rule merely
makes three minor technical revisions to the December 2001 Phase I
final regulations for cooling water intake structures. These minor
changes will clarify the Agency's intent on velocity monitoring,
authority to require additional design and construction technologies,
and procedures for seeking less stringent alternative requirements. It
would affect the same facilities as the December 2001 rule, would have
no additional costs or benefits beyond those already projected, and
would not reduce the level of environmental protection projected. Thus
Executive Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' ``Policies that have Tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal government and the Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes.''
This direct final rule does not have Tribal implications. It will
not have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified in Executive Order 13175.
This rule merely makes three minor technical revisions to the final
regulations for cooling water intake structures. These minor changes
will clarify the Agency's intent on velocity monitoring, authority to
require additional design and construction technologies, and procedures
for seeking less stringent alternative requirements. It would affect
the same facilities as the December 2001 rule, would have no additional
costs or benefits beyond those already projected, and would not reduce
the level of environmental protection projected. This rule does not
affect Tribes in any way in the foreseeable future. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This final
rule is not economically significant as defined under Executive Order
12866 and does not concern an environmental health or safety risk that
EPA has reason to believe may have a disproportionate effect on
children. This rule merely makes three minor technical revisions to the
final regulations for cooling water intake structures. These minor
changes will clarify the Agency's intent on velocity monitoring,
authority to require additional design and construction technologies,
and procedures for seeking less stringent alternative requirements. It
would affect the same facilities as the December 2001 rule, would have
no additional costs or benefits beyond those already projected, and
would not reduce the level of environmental protection projected.
Therefore, it is not subject to Executive Order 13045.
H. Executive Order 13211: Energy Effects
This direct final rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (``NTTAA'') of 1995 (Public Law 104-113, section 12(d), 15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
direct final rule does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
EPA does not expect that this final rule would have an exclusionary
effect, deny persons the benefit of the NPDES program or subject
persons to discrimination because of their race, color, or national
origin. This rule merely makes three minor technical revisions to the
final regulations for cooling water intake structures. These minor
changes will clarify the Agency's intent on velocity monitoring,
authority to require additional design and construction technologies,
and procedures for seeking less stringent alternative requirements. It
would affect
[[Page 78954]]
the same facilities as the December 2001 rule, would have no additional
costs or benefits beyond those already projected, and would not reduce
the level of environmental protection projected.
K. Executive Order 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
Today's direct final rule will not enhance or expand protection nor
reduce the level of environmental protection of existing marine
protected areas. This rule merely makes three minor technical revisions
to the December 2001 Phase I final regulations for cooling water intake
structures. These minor changes will clarify the Agency's intent on
velocity monitoring, authority to require additional design and
construction technologies, and procedures for seeking less stringent
alternative requirements. It would affect the same facilities as the
December 2001 rule, would have no additional costs or benefits beyond
those already projected, and would not reduce the level of
environmental protection projected.
L. Plain Language Directive
Executive Order 12866 encourages agencies to write all rules in
plain language. EPA has written this direct final rule in plain
language to make this rule and the final rule at 66 FR 65256, December
18, 2001 easier to understand.
M. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 26, 2003.
List of Subjects in 40 CFR Part 125
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal, Water pollution control.
Dated: December 19, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 125 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq., unless
otherwise noted.
2. In Sec. 125.83, remove the definition for ``Minimum ambient
source water surface elevation.''
3. Section 125.84 is amended by revising paragraphs (b)(4)(ii),
(b)(4)(iii), (b)(5)(ii), (c)(3)(ii), (c)(3)(iii), and (d)(1) to read as
follows:
Sec. 125.84 As an owner or operator of a new facility, what must I do
to comply with this subpart?
* * * * *
(b) * * *
(4) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are migratory and/or
sport or commercial species of impingement concern to the Director that
pass through the hydraulic zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director, based on information
submitted by any fishery management agency(ies) or other relevant
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (b)(1), (2), and (3) of
this section, would still contribute unacceptable stress to the
protected species, critical habitat of those species, or species of
concern;
(5) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are or would be
undesirable cumulative stressors affecting entrainable life stages of
species of concern to the Director and the Director determines that the
proposed facility, after meeting the technology-based performance
requirements in paragraphs (b)(1), (2), and (3) of this section, would
contribute unacceptable stress to these species of concern;
* * * * *
(c) * * *
(3) * * *
(ii) Based on information submitted by any fishery management
agency(ies) or other relevant information, there are migratory and/or
sport or commercial species of impingement concern to the Director that
pass through the hydraulic zone of influence of the cooling water
intake structure; or
(iii) It is determined by the Director, based on information
submitted by any fishery management agency(ies) or other relevant
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (c)(1) and (2) of this
section, would contribute unacceptable stress to the protected species,
critical habitat of those species, or species of concern;
* * * * *
(d) * * *
(1) You must demonstrate to the Director that the technologies
employed will reduce the level of adverse environmental impact from
your cooling water intake structures to a comparable level to that
which you would achieve were you to implement the requirements of
paragraphs (b)(1) and (2) of this section. This demonstration must
include a showing that the impacts to fish and shellfish, including
important forage and predator species, within the watershed will be
comparable to those which would result if you were to implement the
requirements of paragraphs (b)(1) and (2) of this section. This showing
may include consideration of impacts other than impingement mortality
and entrainment, including measures that will result in increases in
fish and shellfish, but it must demonstrate comparable performance for
species that the Director identifies as species of concern. In
identifying such species, the Director may consider information
provided by national, state, or tribal fishery management agencies with
responsibility for fisheries potentially affected by your cooling water
intake structure along with data and information from other sources.
* * * * *
[[Page 78955]]
4. Section 125.85 is amended by revising paragraphs (a)(2) and (3)
to read as follows:
Sec. 125.85 May alternative requirements be authorized?
(a) * * *
(2) The Director determines that data specific to the facility
indicate that compliance with the requirement at issue would result in
compliance costs wholly out of proportion to the costs EPA considered
in establishing the requirement at issue or would result in significant
adverse impacts on local air quality, significant adverse impacts on
local water resources other than impingement or entrainment, or
significant adverse impacts on local energy markets;
(3) The alternative requirement requested is no less stringent than
justified by the wholly out of proportion cost or the significant
adverse impacts on local air quality, significant adverse impacts on
local water resources other than impingement or entrainment, or
significant adverse impacts on local energy markets; and
* * * * *
5. Section 125.89 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 125.89 As the Director, what must I do to comply with the
requirements of this subpart?
* * * * *
(b) * * *
(2) Monitoring conditions. At a minimum, the permit must require
the permittee to perform the monitoring required in Sec. 125.87. [For
facilities required to perform the velocity monitoring in Sec.
125.87(b), you should determine and specify the appropriate time of
measurement in the permit based on available existing hydrological
information and information submitted by the owner of the facility with
its permit application.] You 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. The Director may require continued monitoring
based on the results of the Verification Monitoring Plan in Sec.
125.86(c)(2)(iv)(D).
* * * * *
[FR Doc. 02-32610 Filed 12-24-02; 8:45 am]
BILLING CODE 6560-50-P