Response
to
Public
Comment
­­­
National
Pollutant
Discharge
Elimination
System­­­
Regulations
Addressing
Cooling
Water
Intake
Structures
(
40
CFR
Parts
9,
122,
123,
124,
and
125)

Docket
#:
W­
00­
03
Report
of
Comments
Meeting
The
Following
Criteria:

Author
ID:

Comment
ID:
316bNFR.
206.032
Subject
Code:

Author
Type:

Comment
Keywords
Response
Keywords
1
Record(
s)
In
Report
Response
to
Comment:
CWA
Sec.
316(
b)
New
Facility
Rule
For
Deliberative
Purposes
Only
Page
1
of
4
Thursday,
June
19,
2003
NO
VARIANCE
PROCEDURE
IS
ALLOWED
BECAUSE
THE
PHASE
I
RULE
IS
AKIN
TO
A
NEW
SOURCE
PERFORMANCE
STANDARD.

BTA
standards
for
new
facilities
under
section
316(
b)
are
akin
to
new
source
performance
standards
(
NSPS)
promulgated
under
Section
306.
This
is
made
clear
by
the
mandate
in
Section
316(
b)
that
standards
established
pursuant
to
Section
306
must
require
BTA
for
CWISs.
Indeed,
as
the
VEPCO
court
stated:

It
bears
emphasis
that
§
316(
b)
...
requires
§
301
and
§
306
standards
to
deal
with
cooling
water
intake
structures.
...
§
316(
b)
itself
seems
to
indicate
its
limitations
are
to
be
adopted
under
§
§
301
and
306...[
T]
he
regulations
issued
under
§
316(
b)
are...
closely
related
to
the
effluent
limitations
and
new
source
standards
of
performance
of
§
§
301
and
306.
<
FN
153>

There
is,
however,
no
variance
procedure
statutorily
permissible
for
NSPS.
The
only
variances
from
technology­
based
standards
allowed
under
the
Act
are
in
Sections
301(
n)
(
the
"
fundamentally
different
factors"
variance)
and
301(
c)
(
economic
variance)
both
of
which
apply
only
to
existing
sources.
The
United
States
Supreme
Court
in
E.
I.
DuPont
v.
Train
found
unequivocally
that
the
Clean
Water
Act
does
not
allow
a
variance
procedure
for
new
sources:

It
is
clear
that
Congress
intended
these
regulations
to
be
absolute
prohibitions.
The
use
of
the
word
"
standards"
implies
as
much.
So
does
the
description
of
the
preferred
standard
as
one
"
permitting
no
discharge
of
pollutants."
It
is
"
unlawful
for
any
owner
or
operator
of
any
new
source
to
operate
such
source
in
violation
of
any
standard
applicable
to
such
source."
§
306(
e).
In
striking
contrast
to
§
301(
c),
there
is
no
statutory
provision
for
variances,
and
a
variance
provision
would
be
inappropriate
in
a
standard
that
was
intended
to
insure
national
uniformity
and
"
maximum
feasible
control"
of
new
sources.
<
FN
154>

As
a
result,
the
Clean
Water
Act
does
not
permit
EPA.
in
establishing
national
cooling
water
Intake
regulations
for
new
sources
under
Sections
316(
b)
and
306,
to
include
a
variance
provision.
Therefore,
EPA's
inclusion
of
a
variance
provision
based
on
economic
factors
in
the
Proposed
Regulation
<
FN
155>
is
not
in
accordance
with
law.
Comment
ID
316bNFR.
206.032
Author
Name
David
K.
Gordon
&
Reed
W.
Super
Primary
Subject
Matter
Code
16.4
Organization
Riverkeeper,
et
al.
Tone
A
Footnotes
153
Virginia
Electric
and
Power
Company
v.
Costle.
566
F
.2d
446,
450
(
4th
Cir.
1977).

154
E.
I.
DuPont
v.
Train.
430
U.
S.
112,
138
(
1977).

155
40
C.
F.
R.
§
125.85
(
proposed)
(
entitled
"
May
alternative
requirements
be
imposed?)

Response
See
preamble
section
VII.
H.
In
this
rule,
EPA
believes
that
it
is
guided
by
section
306
of
the
CWA
and
section
304
with
respect
to
taking
a
technology­
based
approach
to
the
rule,
and
the
factors
relevant
to
such
an
approach,
but
because
the
variance
authorizations
in
the
CWA
are
under
section
Environmental
Organization
Author
Type
Response
to
Comment:
CWA
Sec.
316(
b)
New
Facility
Rule
For
Deliberative
Purposes
Only
Page
2
of
4
Thursday,
June
19,
2003
301
governing
effluent
limitations
and
because
section
316(
b)
is
in
a
different
portion
of
the
CWA
than
sections
301,
304
or
306,
section
301'
s
limitation
of
variances
to
existing
sources
do
not
control
EPA
in
implementing
section
316(
b)
for
new
facilities.
In
other
words,
the
statute
is
silent
with
respect
to
variances
for
standards
established
under
section
316(
b).
As
such,
where
the
statute
is
silent,
a
Chevron
analysis
applies.
EPA
believes
that
it
is
a
reasonable
interpretation
of
the
act
to
allow
for
such
a
variance
in
establishing
a
rule
implementing
section
316(
b)
to
provide
for
flexibility
where
EPA
did
not
account
for
the
types
of
costs
a
particular
facility
would
face
in
the
record
for
this
rule.
This
could
be
the
case
where,
for
example,
EPA
did
not
consider
a
type
of
industry
that
has
a
cooling
water
intake
and
the
costs
of
the
rule
are
wholly
disproportionate
to
the
costs
considered
in
this
rulemaking.
This
is
similar
to
the
approach
EPA
undertook
in
implementing
section
301(
c)
in
Weyerhaeuser
v.
Costle,
590
F.
2d
1011,
1033­
35
(
D.
C.
Cir.
1978).
E.
I.
du
Pont
de
Nemours
&
Co.
v.
Train,
430
U.
S.
112
(
1977)
holding
that
section
306
does
not
authorize
variances
for
new
sources,
is
distinguishable,
not
only
because
that
case
was
limited
to
new
source
performance
standards
for
point
source
dischargers
under
section
306,
but
because
Court's
reasoning
was
based
on
the
word
"
standards"
in
306
as
not
providing
any
authority
for
difference.
By
contrast,
in
section
316(
b),
the
word
"
standards"
clearly
refers
to
both
new
source
performance
standards
and
effluent
limitations
guidelines
for
existing
sources,
for
which
the
CWA
authorized
variances.
Thus,
the
use
of
the
word
"
standards"
could
not
be
as
limited
in
section
316(
b)
as
it
is
in
section
306;
and
therefore
it
is
reasonable
to
interpret
it
to
include
flexibility
not
afforded
to
NSPS.
Further,
the
Court
looked
toward
ultimate
objective
of
sections
301
and
306
as
one
"
permitting
no
discharge
of
pollutants"
which
is
different
from
the
substantive
standard
articulated
in
316(
b)
which
is
to
"
minimize"
adverse
environmental
impact.
Finally,
section
316(
b)
is
different
than
section
306
because
it
applies
broadly
to
any
cooling
water
intake
structure,
while
each
new
source
performance
standard
applies
to
a
particular
category
that
is
fully
considered
during
the
rulemaking.
It
is
more
likely
that
this
variance
will
be
applied
in
the
context
of
an
industry
that
EPA
did
not
consider
at
the
time
of
this
rulemaking.

Response
to
Comment:
CWA
Sec.
316(
b)
New
Facility
Rule
For
Deliberative
Purposes
Only
Page
3
of
4
Thursday,
June
19,
2003
Response
to
Comment:
CWA
Sec.
316(
b)
New
Facility
Rule
For
Deliberative
Purposes
Only
Page
4
of
4
Thursday,
June
19,
2003
