[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR125.95]



[Page 352-359]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 125_CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM--Table of Contents

 

Subpart J_Requirements Applicable to Cooling Water Intake Structures for 

      Phase II Existing Facilities Under Section 316(b) of the Act

 

Sec.  125.95  As an owner or operator of a Phase II existing facility, 

what must I collect and submit when I apply for my reissued NPDES permit?



    (a)(1) You must submit to the Director the Proposal for Information 

Collection required in paragraph (b)(1) of this section prior to the 

start of information collection activities;

    (2) You must submit to the Director the information required in 40 

CFR 122.21(r)(2), (r)(3) and (r)(5) and any applicable portions of the 

Comprehensive Demonstration Study (Study), except for the Proposal for 

Information Collection required by paragraph (b)(1) of this section; and

    (i) You must submit your NPDES permit application in accordance with 

the time frames specified in 40 CFR 122.21(d)(2).

    (ii) If your existing permit expires before July 9, 2008, you may 

request that the Director establish a schedule for you to submit the 

information required by this section as expeditiously as practicable, 

but not later than January 7, 2008. Between the time your existing 

permit expires and the time an NPDES permit containing requirements 

consistent with this subpart is



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issued to your facility, the best technology available to minimize 

adverse environmental impact will continue to be determined based on the 

Director's best professional judgment.

    (3) In subsequent permit terms, the Director may approve a request 

to reduce the information required to be submitted in your permit 

application on the cooling water intake structure(s) and the source 

waterbody, if conditions at your facility and in the waterbody remain 

substantially unchanged since your previous application. You must submit 

your request for reduced cooling water intake structure and waterbody 

application information to the Director at least one year prior to the 

expiration of the permit. Your request must identify each required 

information item in Sec.  122.21(r) and this section that you determine 

has not substantially changed since the previous permit application and 

the basis for your determination.

    (b) Comprehensive Demonstration Study. The purpose of the 

Comprehensive Demonstration Study (The Study) is to characterize 

impingement mortality and entrainment, to describe the operation of your 

cooling water intake structures, and to confirm that the technologies, 

operational measures, and/or restoration measures you have selected and 

installed, or will install, at your facility meet the applicable 

requirements of Sec.  125.94. All facilities except those that have met 

the applicable requirements in accordance with Sec. Sec.  

125.94(a)(1)(i), 125.94(a)(1)(ii), and 125.94(a)(4) must submit all 

applicable portions of the Comprehensive Demonstration Study to the 

Director in accordance with paragraph (a) of this section. Facilities 

that meet the requirements in Sec.  125.94(a)(1)(i) by reducing their 

flow commensurate with a closed-cycle, recirculating system are not 

required to submit a Comprehensive Demonstration Study. Facilities that 

meet the requirements in Sec.  125.94(a)(1)(ii) by reducing their design 

intake velocity to 0.5 ft/sec or less are required to submit a Study 

only for the entrainment requirements, if applicable. Facilities that 

meet the requirements in Sec.  125.94(a)(4) and have installed and 

properly operate and maintain an approved design and construction 

technology (in accordance with Sec.  125.99) are required to submit only 

the Technology Installation and Operation Plan in paragraph (b)(4) of 

this section and the Verification Monitoring Plan in paragraph (b)(7) of 

this section. Facilities that are required to meet only impingement 

mortality performance standards in Sec.  125.94(b)(1) are required to 

submit only a Study for the impingement mortality reduction 

requirements. The Comprehensive Demonstration Study must include:

    (1) Proposal For Information Collection. You must submit to the 

Director for review and comment a description of the information you 

will use to support your Study. The Proposal for Information must be 

submitted prior to the start of information collection activities, but 

you may initiate such activities prior to receiving comment from the 

Director. The proposal must include:

    (i) A description of the proposed and/or implemented technologies, 

operational measures, and/or restoration measures to be evaluated in the 

Study;

    (ii) A list and description of any historical studies characterizing 

impingement mortality and entrainment and/or the physical and biological 

conditions in the vicinity of the cooling water intake structures and 

their relevance to this proposed Study. If you propose to use existing 

data, you must demonstrate the extent to which the data are 

representative of current conditions and that the data were collected 

using appropriate quality assurance/quality control procedures;

    (iii) A summary of any past or ongoing consultations with 

appropriate Federal, State, and Tribal fish and wildlife agencies that 

are relevant to this Study and a copy of written comments received as a 

result of such consultations; and

    (iv) A sampling plan for any new field studies you propose to 

conduct in order to ensure that you have sufficient data to develop a 

scientifically valid estimate of impingement mortality and entrainment 

at your site. The sampling plan must document all methods and quality 

assurance/quality control procedures for sampling and data analysis. The 

sampling and data analysis methods you propose must be appropriate



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for a quantitative survey and include consideration of the methods used 

in other studies performed in the source waterbody. The sampling plan 

must include a description of the study area (including the area of 

influence of the cooling water intake structure(s)), and provide a 

taxonomic identification of the sampled or evaluated biological 

assemblages (including all life stages of fish and shellfish).

    (2) Source waterbody flow information. You must submit to the 

Director the following source waterbody flow information:

    (i) If your cooling water intake structure is located in a 

freshwater river or stream, you must provide the annual mean flow of the 

waterbody and any supporting documentation and engineering calculations 

to support your analysis of whether your 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 

(b) of this section. Representative historical data (from a period of 

time up to 10 years, if available) must be used; and

    (ii) If your cooling water intake structure is located in a lake 

(other than one of the Great Lakes) or a reservoir and you propose to 

increase its design intake flow, you must provide a description of the 

thermal stratification in the waterbody, 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 

fisheries, including the results of any consultations with Federal, 

State, or Tribal fish and wildlife management agencies.

    (3) Impingement Mortality and/or Entrainment Characterization Study. 

You must submit to the Director an Impingement Mortality and/or 

Entrainment Characterization Study whose purpose is to provide 

information to support the development of a calculation baseline for 

evaluating impingement mortality and entrainment and to characterize 

current impingement mortality and entrainment. The Impingement Mortality 

and/or Entrainment Characterization Study must include the following, in 

sufficient detail to support development of the other elements of the 

Comprehensive Demonstration Study:

    (i) Taxonomic identifications of all life stages of fish, shellfish, 

and any species protected under Federal, State, or Tribal Law (including 

threatened or endangered species) that are in the vicinity of the 

cooling water intake structure(s) and are susceptible to impingement and 

entrainment;

    (ii) A characterization of all life stages of fish, shellfish, and 

any species protected under Federal, State, or Tribal Law (including 

threatened or endangered species) identified pursuant to paragraph 

(b)(3)(i) of this section, including a description of the abundance and 

temporal and spatial characteristics in the vicinity of the cooling 

water intake structure(s), based on sufficient data to characterize 

annual, seasonal, and diel variations in impingement mortality and 

entrainment (e.g., related to climate and weather differences, spawning, 

feeding and water column migration). These may include historical data 

that are representative of the current operation of your facility and of 

biological conditions at the site;

    (iii) Documentation of the current impingement mortality and 

entrainment of all life stages of fish, shellfish, and any species 

protected under Federal, State, or Tribal Law (including threatened or 

endangered species) identified pursuant to paragraph (b)(3)(i) of this 

section and an estimate of impingement mortality and entrainment to be 

used as the calculation baseline. The documentation may include 

historical data that are representative of the current operation of your 

facility and of biological conditions at the site. Impingement mortality 

and entrainment samples to support the calculations required in 

paragraphs (b)(4)(i)(C) and (b)(5)(iii) of this section must be 

collected during periods of representative operational flows for the 

cooling water intake structure and the flows associated with the samples 

must be documented;

    (4) Technology and compliance assessment information--(i) Design and 

Construction Technology Plan. If you choose



[[Page 355]]



to use design and construction technologies and/or operational measures, 

in whole or in part to meet the requirements of Sec.  125.94(a)(2) or 

(3), you must submit a Design and Construction Technology Plan to the 

Director for review and approval. In the plan, you must provide the 

capacity utilization rate for your facility (or for individual intake 

structures where applicable, in accordance with Sec.  125.93) and 

provide 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 capacity of the 

facility (in MW)) and underlying calculations. The plan must explain the 

technologies and/or operational measures you have in place and/or have 

selected to meet the requirements in Sec.  125.94. (Examples of 

potentially appropriate technologies may include, but are not limited 

to, wedgewire screens, fine mesh screens, fish handling and return 

systems, barrier nets, aquatic filter barrier systems, vertical and/or 

lateral relocation of the cooling water intake structure, and 

enlargement of the cooling water intake structure opening to reduce 

velocity. Examples of potentially appropriate operational measures may 

include, but are not limited to, seasonal shutdowns, reductions in flow, 

and continuous or more frequent rotation of traveling screens.) The plan 

must contain the following information:

    (A) A narrative description of the design and operation of all 

design and construction technologies and/or operational measures 

(existing and proposed), including fish handling and return systems, 

that you have 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 

technologies and/or operational measures for those species;

    (B) A narrative description of the design and operation of all 

design and construction technologies and/or operational measures 

(existing and proposed) that you have in place or will use to meet the 

requirements to reduce entrainment of those species expected to be the 

most susceptible to entrainment, if applicable, and information that 

demonstrates the efficacy of the technologies and/or operational 

measures for those species;

    (C) 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/or operational measures you have 

selected based on the Impingement Mortality and/or Entrainment 

Characterization Study in paragraph (b)(3) of this section. In 

determining compliance with any requirements to reduce impingement 

mortality or entrainment, you must assess the total reduction in 

impingement mortality and entrainment against the calculation baseline 

determined in accordance with paragraph (b)(3) of this section. 

Reductions in impingement mortality and entrainment from this 

calculation baseline as a result of any design and construction 

technologies and/or operational measures already implemented at your 

facility should be added to the reductions expected to be achieved by 

any additional design and/or construction technologies and operational 

measures that will be implemented, and any increases in fish and 

shellfish within the waterbody attributable to your restoration 

measures. Facilities that recirculate a portion of their flow, but do 

not reduce flow sufficiently to satisfy the compliance option in Sec.  

125.94(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 design and 

construction technologies and/or operational measures. This estimate 

must include a site-specific evaluation of the suitability of the 

technologies and/or operational measures based on the species that are 

found at the site, and may be determined based on representative studies 

(i.e., studies that have been conducted at a similar facility's cooling 

water intake structures located in the same waterbody type with similar 

biological characteristics) and/or site-specific technology prototype or 

pilot studies; and

    (D) Design and engineering calculations, drawings, and estimates 

prepared by a qualified professional to



[[Page 356]]



support the descriptions required by paragraphs (b)(4)(i)(A) and (B) of 

this section.

    (ii) Technology Installation and Operation Plan. If you choose the 

compliance alternative in Sec.  125.94(a)(2), (3), (4), or (5) and use 

design and construction technologies and/or operational measures in 

whole or in part to comply with the applicable requirements of Sec.  

125.94, you must submit the following information with your application 

for review and approval by the Director:

    (A) A schedule for the installation and maintenance of any new 

design and construction technologies. Any downtime of generating units 

to accommodate installation and/or maintenance of these technologies 

should be scheduled to coincide with otherwise necessary downtime (e.g., 

for repair, overhaul, or routine maintenance of the generating units) to 

the extent practicable. Where additional downtime is required, you may 

coordinate scheduling of this downtime with the North American Electric 

Reliability Council and/or other generators in your area to ensure that 

impacts to reliability and supply are minimized;

    (B) List of operational and other parameters to be monitored, and 

the location and frequency that you will monitor them;

    (C) List of activities you will undertake to ensure to the degree 

practicable the efficacy of installed design and construction 

technologies and operational measures, and your schedule for 

implementing them;

    (D) A schedule and methodology for assessing the efficacy of any 

installed design and construction technologies and operational measures 

in meeting applicable performance standards or site-specific 

requirements, including an adaptive management plan for revising design 

and construction technologies, operational measures, operation and 

maintenance requirements, and/or monitoring requirements if your 

assessment indicates that applicable performance standards or site-

specific requirements are not being met; and

    (E) If you choose the compliance alternative in Sec.  125.94(a)(4), 

documentation that the appropriate site conditions in Sec.  125.99(a) or 

(b) exist at your facility.

    (5) Restoration Plan. If you propose to use restoration measures, in 

whole or in part, to meet the applicable requirements in Sec.  125.94, 

you must submit the following information with your application for 

review and approval by the Director. You must address species of concern 

identified in consultation with Federal, State, and Tribal fish and 

wildlife management agencies with responsibility for fisheries and 

wildlife potentially affected by your cooling water intake structure(s).

    (i) A demonstration to the Director that you have evaluated the use 

of design and construction technologies and/or operational measures for 

your facility and an explanation of how you determined that restoration 

would be more feasible, cost-effective, or environmentally desirable;

    (ii) A narrative description of the design and operation of all 

restoration measures (existing and proposed) that you have in place or 

will use to produce fish and shellfish;

    (iii) Quantification of the ecological benefits of the proposed 

restoration measures. You must use information from the Impingement 

Mortality and/or Entrainment Characterization Study required in 

paragraph (b)(3) of this section, and any other available and 

appropriate information, to estimate the reduction in fish and shellfish 

impingement mortality and/or entrainment that would be necessary for 

your facility to comply with Sec.  125.94(c)(2). You must then calculate 

the production of fish and shellfish that you will achieve with the 

restoration measures you will or have already installed. You must 

include a discussion of the nature and magnitude of uncertainty 

associated with the performance of these restoration measures. You must 

also include a discussion of the time frame within which these 

ecological benefits are expected to accrue;

    (iv) Design calculations, drawings, and estimates to document that 

your proposed restoration measures in combination with design and 

construction technologies and/or operational measures, or alone, will 

meet the requirements of Sec.  125.94(c)(2). If the restoration measures 

address the same fish and



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shellfish species identified in the Impingement Mortality and/or 

Entrainment Characterization Study (in-kind restoration), you must 

demonstrate that the restoration measures will produce a level of these 

fish and shellfish substantially similar to that which would result from 

meeting applicable performance standards in Sec.  125.94(b), or that 

they will satisfy site-specific requirements established pursuant to 

Sec.  125.94(a)(5). If the restoration measures address fish and 

shellfish species different from those identified in the Impingement 

Mortality and/or Entrainment Characterization Study (out-of-kind 

restoration), you must 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 a watershed approach to restoration planning and 

consider applicable multi-agency watershed restoration plans, site-

specific peer-reviewed ecological studies, and/or consultation with 

appropriate Federal, State, and Tribal fish and wildlife management 

agencies.

    (v) A plan utilizing an adaptive management method for implementing, 

maintaining, and demonstrating the efficacy of the restoration measures 

you have 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 requirements of Sec.  125.94(c)(2). The plan must 

include:

    (A) A monitoring plan that includes a list of the restoration 

parameters that will be monitored, the frequency at which you will 

monitor them, and success criteria for each parameter;

    (B) A list of activities you will undertake to ensure the efficacy 

of the restoration measures, a description of the linkages between these 

activities and the items in paragraph (b)(5)(v)(A) of this section, and 

an implementation schedule; and

    (C) A process for revising the Restoration Plan as new information, 

including monitoring data, becomes available, if the applicable 

requirements under Sec.  125.94(c)(2) are not being met.

    (vi) A summary of any past or ongoing consultation with appropriate 

Federal, State, and Tribal fish and wildlife management agencies on your 

use of restoration measures including a copy of any written comments 

received as a result of such consultations;

    (vii) If requested by the Director, a peer review of the items you 

submit for the Restoration Plan. You must choose the peer reviewers in 

consultation with 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 your 

cooling water intake structure(s). Peer reviewers must have appropriate 

qualifications (e.g., in the fields of geology, engineering, and/or 

biology, etc.) depending upon the materials to be reviewed; and

    (viii) A description of the information to be included in a bi-

annual status report to the Director.

    (6) Information to support site-specific determination of best 

technology available for minimizing adverse environmental impact. If you 

have requested a site-specific determination of best technology 

available for minimizing adverse environmental impact pursuant to Sec.  

125.94(a)(5)(i) because of costs significantly greater than those 

considered by the Administrator for a facility like yours in 

establishing the applicable performance standards of Sec.  125.94(b), 

you are required to provide to the Director the information specified in 

paragraphs (b)(6)(i) and (b)(6)(iii) of this section. If you have 

requested a site-specific determination of best technology available for 

minimizing adverse environmental impact pursuant to Sec.  

125.94(a)(5)(ii) because of costs significantly greater than the 

benefits of meeting the applicable performance standards of Sec.  

125.94(b) at your facility, you must provide the information specified 

in paragraphs (b)(6)(i), (b)(6)(ii), and (b)(6)(iii) of this section:

    (i) Comprehensive Cost Evaluation Study. You must perform and submit 

the results of a Comprehensive Cost Evaluation Study, that includes:

    (A) Engineering cost estimates in sufficient detail to document the 

costs



[[Page 358]]



of implementing design and construction technologies, operational 

measures, and/or restoration measures at your facility that would be 

needed to meet the applicable performance standards of Sec.  125.94(b);

    (B) A demonstration that the costs documented in paragraph 

(b)(6)(i)(A) of this section significantly exceed either those 

considered by the Administrator for a facility like yours in 

establishing the applicable performance standards or the benefits of 

meeting the applicable performance standards at your facility; and

    (C) Engineering cost estimates in sufficient detail to document the 

costs of implementing the design and construction technologies, 

operational measures, and/or restoration measures in your Site-Specific 

Technology Plan developed in accordance with paragraph (b)(6)(iii) of 

this section.

    (ii) Benefits Valuation Study. If you are seeking a site-specific 

determination of best technology available for minimizing adverse 

environmental impact because of costs significantly greater than the 

benefits of meeting the applicable performance standards of Sec.  

125.94(b) at your facility, you must use a comprehensive methodology to 

fully value the impacts of impingement mortality and entrainment at your 

site and the benefits achievable by meeting the applicable performance 

standards. In addition to the valuation estimates, the benefit study 

must include the following:

    (A) A description of the methodology(ies) used to value commercial, 

recreational, and ecological benefits (including any non-use benefits, 

if applicable);

    (B) Documentation of the basis for any assumptions and quantitative 

estimates. If you plan to use an entrainment survival rate other than 

zero, you must submit a determination of entrainment survival at your 

facility based on a study approved by the Director;

    (C) An analysis of the effects of significant sources of uncertainty 

on the results of the study; and

    (D) If requested by the Director, a peer review of the items you 

submit in the Benefits Valuation Study. You must choose the peer 

reviewers in consultation with 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 your 

cooling water intake structure. Peer reviewers must have appropriate 

qualifications depending upon the materials to be reviewed.

    (E) A narrative description of any non-monetized benefits that would 

be realized at your site if you were to meet the applicable performance 

standards and a qualitative assessment of their magnitude and 

significance.

    (iii) Site-Specific Technology Plan. Based on the results of the 

Comprehensive Cost Evaluation Study required by paragraph (b)(6)(i) of 

this section, and the Benefits Valuation Study required by paragraph 

(b)(6)(ii) of this section, if applicable, you must submit a Site-

Specific Technology Plan to the Director for review and approval. The 

plan must contain the following information:

    (A) A narrative description of the design and operation of all 

existing and proposed design and construction technologies, operational 

measures, and/or restoration measures that you have selected in 

accordance with Sec.  125.94(a)(5);

    (B) 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 must 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, you must provide a Restoration Plan that includes the 

elements described in paragraph (b)(5) of this section.

    (C) A demonstration that the proposed and/or implemented design and 

construction technologies, operational measures, and/or restoration 

measures achieve an efficacy that is as close as



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practicable to the applicable performance standards of Sec.  125.94(b) 

without resulting in costs significantly greater than either the costs 

considered by the Administrator for a facility like yours in 

establishing the applicable performance standards, or as appropriate, 

the benefits of complying with the applicable performance standards at 

your facility;

    (D) Design and engineering calculations, drawings, and estimates 

prepared by a qualified professional to support the elements of the 

Plan.

    (7) Verification Monitoring Plan. If you comply using compliance 

alternatives in Sec.  125.94(a)(2), (3), (4), or (5) using design and 

construction technologies and/or operational measures, you must submit a 

plan to conduct, at a minimum, two years of monitoring to verify the 

full-scale performance of the proposed or already implemented 

technologies and/or operational measures. The verification study must 

begin once the design and construction technologies and/or operational 

measures are installed and continue for a period of time that is 

sufficient to demonstrate to the Director whether the facility is 

meeting the applicable performance standards in Sec.  125.94(b) or site-

specific requirements developed pursuant to Sec.  125.94(a)(5). The plan 

must provide the following:

    (i) Description of the frequency and duration of monitoring, the 

parameters to be monitored, and the basis for determining the parameters 

and the frequency and duration for monitoring. The parameters selected 

and duration and frequency of monitoring must be consistent with any 

methodology for assessing success in meeting applicable performance 

standards in your Technology Installation and Operation Plan as required 

by paragraph (b)(4)(ii) of this section.

    (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 assessing success in meeting the performance standards 

in Sec.  125.94(b).

    (iii) A description of the information to be included in a bi-annual 

status report to the Director.



[69 FR 41683, July 9, 2004, as amended at 69 FR 47210, Aug. 4, 2004]