40 CFR 125.94 - How will requirements reflecting best technology available for minimizing adverse environmental impact be established for my Phase II existing facility?

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§ 125.94 As an owner or operator of an existing facility, what must I do to comply with this subpart?

(a) Applicable Best Technology Available for Minimizing Adverse Environmental Impact (BTA) standards.

(1) On or after October 14, 2014, the owner or operator of an existing facility with a cumulative design intake flow (DIF) greater than 2 mgd is subject to the BTA (best technology available) standards for impingement mortality under paragraph (c) of this section, and entrainment under paragraph (d) of this section including any measures to protect Federally-listed threatened and endangered species and designated critical habitat established under paragraph (g) of this section.

(2) Prior to October 14, 2014, the owner or operator of an existing facility with a cumulative design intake flow (DIF) greater than 2 mgd is subject to site-specific impingement mortality and entrainment requirements as determined by the Director on a case-by-case Best Professional Judgment basis. The Director's BTA determination may be based on consideration of some or all of the factors at § 125.98(f)(2) and (3) and the requirements of § 125.94(c). If the Director requires additional information to make the decision on what BTA requirements to include in the applicant's permit for impingement mortality and entrainment, the Director should consider whether to require any of the information at 40 CFR 122.21(r).

(3) The owner or operator of a new unit is subject to the impingement mortality and entrainment standards under paragraph (e) of this section for all cooling water intake flows used by the new unit. The remainder of the existing facility is subject to the impingement mortality standard under paragraph (c) of this section, and the entrainment standard under paragraph (d) of this section. The entire existing facility including any new units is subject to any measures to protect Federally-listed threatened and endangered species and designated critical habitat established under paragraph (g) of this section.

(b) Compliance with BTA standards.

(1) Aligning compliance deadlines for impingement mortality and entrainment requirements. After issuance of a final permit that establishes the entrainment requirements under § 125.94(d), the owner or operator of an existing facility must comply with the impingement mortality standard in § 125.94(c) as soon as practicable. The Director may establish interim compliance milestones in the permit.

(2) After issuance of a final permit establishing the entrainment requirements under § 125.94(d), the owner or operator of an existing facility must comply with the entrainment standard as soon as practicable, based on a schedule of requirements established by the Director. The Director may establish interim compliance milestones in the permit.

(3) The owner or operator of a new unit at an existing facility must comply with the BTA standards at § 125.94(e) with respect to the new unit upon commencement of the new unit's operation.

(c) BTA Standards for Impingement Mortality. The owner or operator of an existing facility must comply with one of the alternatives in paragraphs (c)(1) through (7) of this section, except as provided in paragraphs (c)(11) or (12) of this section, when approved by the Director. In addition, a facility may also be subject to the requirements of paragraphs (c)(8), (c)(9), or (g) of this section if the Director requires such additional measures.

(1) Closed-cycle recirculating system. A facility must operate a closed-cycle recirculating system as defined at § 125.92(c). In addition, you must monitor the actual intake flows at a minimum frequency of daily. The monitoring must be representative of normal operating conditions, and must include measuring cooling water withdrawals, make-up water, and blow down volume. In lieu of daily intake flow monitoring, you may monitor your cycles of concentration at a minimum frequency of daily; or

(2) 0.5 Feet Per Second Through-Screen Design Velocity. A facility must operate a cooling water intake structure that has a maximum design through-screen intake velocity of 0.5 feet per second. The owner or operator of the facility must submit information to the Director that demonstrates that the maximum design intake velocity as water passes through the structural components of a screen measured perpendicular to the screen mesh does not exceed 0.5 feet per second. The maximum velocity must be achieved under all conditions, including during minimum ambient source water surface elevations (based on BPJ using hydrological data) and during periods of maximum head loss across the screens or other devices during normal operation of the intake structure; or

(3) 0.5 Feet Per Second Through-Screen Actual Velocity. A facility must operate a cooling water intake structure that has a maximum through-screen intake velocity of 0.5 feet per second. The owner or operator of the facility must submit information to the Director that demonstrates that the maximum intake velocity as water passes through the structural components of a screen measured perpendicular to the screen mesh does not exceed 0.5 feet per second. The maximum velocity must be achieved under all conditions, including during minimum ambient source water surface elevations (based on best professional judgment using hydrological data) and during periods of maximum head loss across the screens or other devices during normal operation of the intake structure. The Director may authorize the owner or operator of the facility to exceed the 0.5 fps velocity at an intake for brief periods for the purpose of maintaining the cooling water intake system, such as backwashing the screen face. If the intake does not have a screen, the maximum intake velocity perpendicular to the opening of the intake must not exceed 0.5 feet per second during minimum ambient source water surface elevations. In addition, you must monitor the velocity at the screen at a minimum frequency of daily. In lieu of velocity monitoring at the screen face, you may calculate the through-screen velocity using water flow, water depth, and the screen open areas; or

(4) Existing offshore velocity cap. A facility must operate an existing offshore velocity cap as defined at § 125.92(v) that was installed on or before October 14, 2014. Offshore velocity caps installed after October 14, 2014 must make either a demonstration under paragraph (c)(6) of this section or meet the performance standard under paragraph (c)(7) of this section. In addition, you must monitor your intake flow at a minimum frequency of daily; or

(5) Modified traveling screens. A facility must operate a modified traveling screen that the Director determines meets the definition at § 125.92(s) and that, after review of the information required in the impingement technology performance optimization study at 40 CFR 122.21(r)(6)(i), the Director determines is the best technology available for impingement reduction at the site. As the basis for the Director's determination, the owner or operator of the facility must demonstrate the technology is or will be optimized to minimize impingement mortality of all non-fragile species. The Director must include verifiable and enforceable permit conditions that ensure the technology will perform as demonstrated; or

(6) Systems of technologies as the BTA for impingement mortality. A facility must operate a system of technologies, management practices, and operational measures, that, after review of the information required in the impingement technology performance optimization study at 40 CFR 122.21(r)(6)(ii), the Director determines is the best technology available for impingement reduction at your cooling water intake structures. As the basis for the Director's determination, the owner or operator of the facility must demonstrate the system of technology has been optimized to minimize impingement mortality of all non-fragile species. In addition, the Director's decision will be informed by comparing the impingement mortality performance data under 40 CFR 122.21(r)(6)(ii)(D) to the impingement mortality performance standard that would otherwise apply under paragraph (c)(7) of this section. The Director must include verifiable and enforceable permit conditions that ensure the system of technologies will perform as demonstrated; or

(7) Impingement mortality performance standard. A facility must achieve a 12-month impingement mortality performance standard of all life stages of fish and shellfish of no more than 24 percent mortality, including latent mortality, for all non-fragile species together that are collected or retained in a sieve with maximum opening dimension of 0.56 inches and kept for a holding period of 18 to 96 hours. The Director may, however, prescribe an alternative holding period. You must conduct biological monitoring at a minimum frequency of monthly to demonstrate your impingement mortality performance. Each month, you must use all of the monitoring data collected during the previous 12 months to calculate the 12-month survival percentage. The 12-month impingement mortality performance standard is the total number of fish killed divided by the total number of fish impinged over the course of the entire 12 months. The owner or operator of the facility must choose whether to demonstrate compliance with this requirement for the entire facility, or for each individual cooling water intake structure for which this paragraph (c)(7) is the selected impingement mortality requirement.

(8) Additional measures for shellfish. The owner or operator must comply with any additional measures, such as seasonal deployment of barrier nets, established by the Director to protect shellfish.

(9) Additional measures for other species. The owner or operator must comply with any additional measures, established by the Director, to protect fragile species.

(10) Reuse of other water for cooling purposes. This impingement mortality standard does not apply to that portion of cooling water that is process water, gray water, waste water, reclaimed water, or other waters reused as cooling water in lieu of water obtained by marine, estuarine, or freshwater intakes.

(11) De minimis rate of impingement. In limited circumstances, rates of impingement may be so low at a facility that additional impingement controls may not be justified. The Director, based on review of site-specific data submitted under 40 CFR 122.21(r), may conclude that the documented rate of impingement at the cooling water intake is so low that no additional controls are warranted. For threatened or endangered species, all unauthorized take is prohibited by the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). Notice of a determination that no additional impingement controls are warranted must be included in the draft or proposed permit and the Director's response to all comments on this determination must be included in the record for the final permit.

(12) Low capacity utilization power generating units. If an existing facility has a cooling water intake structure used for one or more existing electric generating units, each with an annual average capacity utilization rate of less than 8 percent averaged over a 24-month block contiguous period, the owner or operator may request the Director consider less stringent requirements for impingement mortality for that cooling water intake structure. The Director may, based on review of site-specific data concerning cooling water system data under 40 CFR 122.21(r)(5), establish the BTA standards for impingement mortality for that cooling water intake structure that are less stringent than paragraphs (c)(1) through (7) of this section.

(d) BTA standards for entrainment for existing facilities. The Director must establish BTA standards for entrainment for each intake on a site-specific basis. These standards must reflect the Director's determination of the maximum reduction in entrainment warranted after consideration of the relevant factors as specified in § 125.98. The Director may also require periodic reporting on your progress towards installation and operation of site-specific entrainment controls. These reports may include updates on planning, design, and construction or other appropriate topics as required by the Director. If the Director determines that the site-specific BTA standard for entrainment under this paragraph requires performance equivalent to a closed-cycle recirculating system as defined at § 125.92(c), then under § 125.94(c)(1) your facility will comply with the impingement mortality standard for that intake.

(e) BTA standards for impingement mortality and entrainment for new units at existing facilities. The owner or operator of a new unit at an existing facility must achieve the impingement mortality and entrainment standards provided in either paragraph (e)(1) or (2) of this section, except as provided in paragraph (e)(4) of this section, for each cooling water intake structure used to provide cooling water to the new unit.

(1) Requirements for new units. The owner or operator of the facility must reduce the design intake flow for the new unit, at a minimum, to a level commensurate with that which can be attained by the use of a closed-cycle recirculating system for the same level of cooling for the new unit.

(2) Alternative requirements for new units. The owner or operator of a new unit at an existing facility must demonstrate to the Director that the technologies and operational measures employed will reduce the level of adverse environmental impact from any cooling water intake structure used to supply cooling water to the new unit to a comparable level to that which would be achieved under § 125.94(e)(1). This demonstration must include a showing that the entrainment reduction is equivalent to 90 percent or greater of the reduction that could be achieved through compliance with § 125.94(e)(1). In addition 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 under the requirements of § 125.94(e)(1).

(3) This standard does not apply to:

(i) Process water, gray water, waste water, reclaimed water, or other waters reused as cooling water in lieu of water obtained by marine, estuarine, or freshwater intakes;

(ii) Cooling water used by manufacturing facilities for contact cooling purposes;

(iii) Portions of those water withdrawals for auxiliary plant cooling uses comprising less than two mgd of the facility's flow; and

(iv) Any quantity of emergency back-up water flows.

(4) The owner or operator of a facility must comply with any alternative requirements established by the Director pursuant to § 125.98(b)(7).

(5) For cooling water flows excluded by paragraph (e)(3) of this section, the Director may establish additional BTA standards for impingement mortality and entrainment on a site-specific basis.

(f) Nuclear facilities. If the owner or operator of a nuclear facility demonstrates to the Director, upon the Director's consultation with the Nuclear Regulatory Commission, the Department of Energy, or the Naval Nuclear Propulsion Program, that compliance with this subpart would result in a conflict with a safety requirement established by the Commission, the Department, or the Program, the Director must make a site-specific determination of best technology available for minimizing adverse environmental impact that would not result in a conflict with the Commission's, the Department's, or the Program's safety requirement.

(g) Additional measures to protect Federally-listed threatened and endangered species and designated critical habitat. The Director may establish in the permit additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to Federally-listed species and designated critical habitat, or avoid jeopardizing Federally-listed species or destroying or adversely modifying designated critical habitat (e.g., prey base). Such control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by an appropriate Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service during the 60 day review period pursuant to § 125.98(h) or the public notice and comment period pursuant to 40 CFR 124.10. Where established in the permit by the Director, the owner or operator must implement any such requirements.

(h) Interim BTA requirements. An owner or operator of a facility may be subject to interim BTA requirements established by the Director in the permit on a site-specific basis.

(i) More stringent standards. The Director must establish more stringent requirements as best technology available for minimizing adverse environmental impact if the Director determines that compliance with the applicable requirements of this section would not meet the requirements of applicable State or Tribal law, including compliance with applicable water quality standards (including designated uses, criteria, and antidegradation requirements).

(j) The owner or operator of a facility subject to this subpart must:

(1) Submit and retain permit application and supporting information as specified in § 125.95;

(2) Conduct compliance monitoring as specified in § 125.96; and

(3) Report information and data and keep records as specified in § 125.97.

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.


United States Code
U.S. Code: Title 33 - NAVIGATION AND NAVIGABLE WATERS