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E-M:/ Suspension of rules on cooling water intakes

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

[Federal Register: July 9, 2007 (Volume 72, Number 130)]
[Rules and Regulations]              
[Page 37107-37109]
 From the Federal Register Online via GPO Access [wais.access.gpo.gov]


40 CFR Parts 122 and 125
[EPA-HQ-OW-2002-0049; FRL-8336-9]
RIN 2040-AD62

National Pollutant Discharge Elimination System--Suspension of
Regulations Establishing Requirements for Cooling Water Intake
Structures at Phase II Existing Facilities

AGENCY: Environmental Protection Agency (EPA).
ACTION: Suspension of final rule.


SUMMARY: This action suspends the requirements for cooling water intake
structures at Phase II existing facilities, pending further rulemaking.
The Phase II regulation addressed existing power utilities that use a
cooling water intake structure to withdraw cooling water from waters of
the United States at a rate of 50 million gallons per day (MGD) or greater.

DATES: Effective July 9, 2007, 40 CFR 122.21(r)(1)(ii) and (5), 125.90(a),
(c) and (d) and 125.91 through 125.99 in Subpart J are suspended.

FOR FURTHER INFORMATION CONTACT: Janet Goodwin at (202) 566-1060, <A HREF="mailto:goodwin.janet@epa.gov";>
goodwin.janet@epa.gov</A> or Deborah Nagle at (202) 564-1185,
<A HREF="mailto:nagle.deborah@epa.gov";>nagle.deborah@epa.gov</A>.

SUPPLEMENTARY INFORMATION: This action suspends the Phase II
regulations with the exception of 40 CFR 125.90 (b), for cooling water
intake structures.

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this action are classified under
NAIC 22111.
    Affected categories and entities include:

                Category                  Examples of regulated entities
Electric Utilities......................  Electric Power Generating
State governments.......................  Department of Environmental

\This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities affected by this action. Other
types of entities not listed in the table could also be affected. To
determine whether your facility is affected by this action, you should
carefully examine the definition in Sec.  125.91. If you have questions
regarding the applicability of this action

[[Page 37108]]

to a particular entity, consult one of the persons listed in the

B. Table of Contents

I. Legal Authority
II. Background
III. This Action
IV. Statutory and Executive Order Reviews

I. Legal Authority

    EPA is issuing this suspension of the Phase II rule pursuant to 5
U.S.C. 553(b) and (d), which authorizes administrative agencies to
issue administrative suspensions immediately, where good cause
justifies the action. Public comment on this suspension is unnecessary,
as a decision issued by the U.S. Court of Appeals for the Second
Circuit (Second Circuit), Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d
Cir. 2007), precludes EPA from applying the Phase II rule unless and
until EPA takes further action and today's suspension action merely
carries out the effect of that decision on the Phase II rule.
Additionally, the decision has resulted in uncertainty among the
regulated community and permitting agencies about how to proceed with
ongoing permitting proceedings given the uncertainty as to the status
of the Phase II rule. This suspension provides a clear statement by the
Agency that the existing Phase II requirements (with the exception of
one provision unaffected by the Riverkeeper decision that reaches
beyond the Phase II rule, addressed below) are suspended and are not
legally applicable.

II. Background

    On February 16, 2004, EPA took final action on regulations
governing cooling water intake structures at certain existing power
producing facilities under section 316(b) of the Clean Water Act (Phase
II rule). 69 FR 41576 (July 9, 2004). The final Phase II rule applies
to existing facilities that are point sources that, as their primary
activity, both generate and transmit electric power or generate
electric power for sale to another entity for transmission; use or
propose to use cooling water intake structures with a total design
intake flow of 50 MGD or more to withdraw cooling water from waters of
the United States; and use at least 25 percent of the water withdrawn
exclusively for cooling purposes (see 40 CFR 125.91).
    Under the Phase II rule, EPA established performance standards for
the reduction of impingement mortality and entrainment (see 40 CFR
125.94). The performance standards consist of ranges of reductions in
impingement mortality and/or entrainment. These performance standards
were determined to reflect the Best Technology Available (BTA) for
minimizing adverse environmental impacts at facilities covered by the
Phase II rule.
    These regulations were challenged by industry and environmental
stakeholders. On judicial review, the Second Circuit decision
(Riverkeeper, Inc. v. EPA, 475 F.3d 83, (2d Cir., 2007)) remanded
several provisions of the Phase II rule on various grounds. The
provisions remanded to EPA include:
    ? EPA's determination of the BTA under section 316(b);
    ? The rule's performance standard ranges;
    ? The cost-cost and cost-benefit compliance alternatives;
    ? The Technology Installation and Operation Plan provision;
    ? The restoration provision; and
    ? The ``independent supplier'' provision.
    With several significant provisions of the Phase II rule affected
by the decision, and with the need to provide timely direction to
stakeholders about the continuing application of the Phase II rule,
EPA's Assistant Administrator for Water issued a memorandum on March
20, 2007, which announced EPA's intention to suspend the Phase II rule.
This memorandum also discussed the anticipated issuance of this Federal
Register suspension document.

III. This Action

    EPA is suspending Sec.  122.21(r)(1)(ii) and (5), and Part 125
Subpart J with the exception of Sec.  125.90(b). This suspension is
appropriate for several reasons.
    First, the Second Circuit's decision remanded key provisions of the
Phase II requirements, including the determination of BTA and the
performance standard ranges. This suspension responds to the Second
Circuit's decision, while the Agency considers how to address the
remanded issues.\1\

    \1\ In the event that the court's decision is overturned after
today's action, the Agency will take appropriate action in response.

    In addition, the decision has a significant impact on the regulated
community and permitting agencies. Both groups have sought Agency
guidance on how to proceed to establish cooling water intake structure
permit requirements for facilities subject to the Phase II rule in
light of this decision. These stakeholders support suspending the Phase
II requirements until the Agency has considered and resolved the issues
raised by the Second Circuit's remand. Permit requirements for cooling
water intake structures at Phase II facilities should be established on
a case-by-case best professional judgment (BPJ) basis.
    Pursuant to 5 U.S.C. 553(b) and (d), EPA has determined for good
cause that notice and public comment procedures are unnecessary. As
noted, the Second Circuit's decision found key provisions of the Phase
II rule to be inconsistent with the Clean Water Act and remanded most
of the rule to the Agency. As a result, under the decision, EPA is
precluded from applying the rule unless and until it takes further
action to address the decision. Thus, today's action simply effectuates
the legal status quo and public comment is therefore unnecessary.
    Notably, EPA by this action is not suspending 40 CFR 125.90(b).
This retains the requirement that permitting authorities develop BPJ
controls for existing facility cooling water intake structures that
reflect the best technology available for minimizing adverse
environmental impact. This provision directs permitting authorities to
establish section 316(b) requirements on a BPJ basis for existing
facilities not subject to categorical section 316(b) regulations.
Establishing requirements in this manner is consistent with the CWA,
case law, and the March 20, 2007 memorandum's direction to do so. Phase
II facilities are not subject to categorical requirements under Subpart
J while this suspension is in effect, and therefore this provision
applies in lieu of those requirements. In addition, this provision
applies to other types of existing facilities subject to section 316(b)
requirements (e.g., existing facilities addressed in EPA's section
316(b) Phase III rule). Moreover, this provision is an analogue to the
provision in the 316(b) Phase I new facility rule providing for BPJ
permitting where a facility is not subject to categorical requirements
under Subpart I. See 40 CFR 125.80(c). Finally, this provision was not
addressed, and is therefore not affected, by the Second Circuit's
decision in Riverkeeper. Retaining it is therefore consistent with the
approach EPA took in response to a judicial remand of its original
section 316(b) regulations. See 44 FR 32854, 32956/1 (June 7, 1979)
(withdrawing remanded regulations, but leaving intact a provision that
had not been remanded).

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review under

[[Page 37109]]

the Executive Order. This action does not impose any new requirements
and does not impose costs or impacts on the regulated industry and thus
does not meet the requirements for Executive Order 12866 review. This
action is not subject to the Regulatory Flexibility Act (RFA) since
this rule is exempt from notice and comment rulemaking requirements for
good cause which is explained in section I. Additionally, this rule
will not significantly or uniquely affect small governments. EPA has
determined that this rule would not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Thus, this rule is not subject to sections 202, 203, or 205 of
the Unfunded Mandates Reform Act of 1999 (Pub. L. 104-4). In addition,
the EPA has determined that this action does not have Tribal
implications, as specified in Executive Order 13175 (63 FR 67249,
November 9, 2000). This action will not have federalism implications,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999)
because it does not establish any requirements on State or local
governments. This regulation is not subject to Executive Order 13045
because it is not economically significant as defined under Executive
Order 12866, and because the Agency does not have reason to believe the
environmental health and safety risks addressed by this action present
a disproportionate risk to children. This action 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. This action does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. This action does not impose any new information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). The existing Information Collection requirements
in this regulation were approved by the Office of Management and Budget
under OMB control number 2040-0257.

List of Subjects

40 CFR Part 122

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indians-lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control.

40 CFR Part 125

    Environmental protection, Cooling water intake structure, Reporting
and recordkeeping requirements, Waste treatment and disposal, Water
pollution control.

    Dated: July 2, 2007.
Stephen L. Johnson,

For the reasons set forth in the preamble, EPA is amending 40 CFR parts
122 and 125 as follows:


? 1. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

Sec.  122.21  [Amended]

? 2. Section 122.21 (r)(1)(ii) is suspended.

? 3. Section 122.21(r)(5) is suspended.


? 4. The authority citation for part 125 continues to read as follows:

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq. unless
otherwise noted.

Sec.  125.90  [Amended]

? 5. Section 125.90(a), (c) and (d) are suspended.

? 6. Sections 125.91 through 125.99 are suspended.

[FR Doc. E7-13202 Filed 7-6-07; 8:45 am]


Alex J. Sagady & Associates        http://www.sagady.com

Environmental Enforcement, Permit/Technical Review, Public Policy, 
Expert Witness Review and Litigation Investigation on Air, Water and 
Waste/Community Environmental and Resource Protection
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