TABLE
OF
CONTENTS
TABLE
OF
AUTHORITIES
........................................
­
vi­

JURISDICTION
...................................................
1
ISSUES
PRESENTED
..............................................
1
A.
Environmental
Petitioners 
and
Amicus s
Issues
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
1
B.
Utility
Water
Act
 
Group­(
UWAG) 
s
Issues
....................
2
C.
ManufacturersIntake
Structure
Coalition
(
M1SC) 
s
Issues
.
.
.
.
.
.
.
.
3
STATEMENTOF
THE
CASE
........................................
3
A.
Nature
Of
The
Case
......................................
3
B.
Statutory
Background
.....................................
6
STATEMENTOF
FACTS
...........................................
11
A.
Cooling
Water
Intake
Structures
...........................
11
B.
Regulatory
Background
..................................
15
STANDARD
OF
REVIEW
...........................................
20
SUMMARY
OF
ARGUMENT
.......................................
23
A.
Summary
of
Argument
on
EnvironmentalPetitioners 
and
Amicus s
Issues
........................................
23
B.
Summary
of
Argument
on
UWAG s
Issues
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
25
C.
Summary
of
Argument
on
MISC s
Issues
....................
27
­
1­
ARGUBMENT
.....................................................
27
I.
ENVIRONMENTAL
PElTITIONERS 
PETITIONS
SHOULD
BE
DENIED
.
.
.
.
.
.
.
.
.
.
.
,.
.......................................
27
A.
Best
TechnologyAvailable
Does
Not
Require
Dry
Cooling
......
27
1.
EPA
ReasonablyInterpreted
The
Statute
To
Authorize
ConsiderationOf
Costs
And
Energy
Impacts
In
Deterrni
ning
The
Best
Technology
Available
...................
28
a.
EPA ,
sinterpretation
is
consistent
with
other
techno
logy­
based
standards
in
the
CWA
................
29
b.
EPA s
interpretation
is
supported
by
the
legislative
history
of
tj
316(
b)
and
by
judicial
precedent
.......
33
c.
EPA%
interpretation
is
entitled
to
deference.
.......
35
2.
EPA
Properly
Rejected
Dry
Cooling
as
the
Best
Technolo
gy
Available
Based
on
Considerationof
Relevant
Factors
..
36
a.

b.

c.

d.
The
high
costs
of
dry
cooling
would
create
a
barrier
to
entry
for
some
facilities
.....................
36
Dry
cooling
results
in
unacceptable
energy
consump­
,

tion
and
increased
air
emissions
.................
39
Dry
cooling
technolo.
gyis
not
feasible
for
all
facilities
subject
to
the
Rule
............................
41
The
sllight
additional
reductions
in
entrainment
do
not
require
EPA
to
adopt
dry
cooling
as
the
best
technology
available
..........................
43
..
­
11­
e.
EPA
h.
as
substantial
discretion
in
weighing
of
the
factors
and
its
determination
is
entitled
to
deference
.
47
B.
Track
I1
Of
EPA s
Rule
Is
Authorized
By
CWA
5
316(
b)
And
SupportedBy
The
.
AdministrativeRecord
....................
48
1.
EPA s
Track.
I1
Requirement
of
Comparable
Reduction
in
Impingement
and
Entrainment
is
Reasonable
.
.
.
.
.
.
.
.
.
.
.
.50
2.
EPA
Reasonably
Interpreted
CWA
5
316(
b)
to
Permit
Restoration
Measures
as
a
Compliance
Option
....
:.
.....
54
3.
Track
I1
Does
Not
Require
a
Case­
By­
Case
Determination
of
Best
Technology
Available
........................
57
C.
The
Alternative
Requirements
Provision
of
EPA s
Rule
is
Authorized
by
CWA
5
3
16(
b)
and
Supported
by
the
Administrative
Record
................................................
59
11..
UWAG S
PETITION
SHOULD
BE
DENIED
......................
65
A,.
EPA s
Track
I
Requirements
Reasonably
Implement
CWA
5
316(
b)
By
Focusing
On
Reducing
The
Impingement
And
Entrainment
Of
Aquatic
Organisms;
Caused
By
Cooling
Water
Intake
Structures
..
65
1.
EPA
Reasonably
Sought
To
Limit
Impingement
and
Entrainment
In
Implementing
CWA
8
316(
b)
............
66
2.
EPA
Reasonably
Rejected
UWAG s
Various
Claims
That
Impingement
And
Entrainment
Are
Not
Adverse
Environmental
Impacts
..............................
71
3.
EPA
Considlered
Non­
Water
Quality
Environmental
Impacts
Of
The
Rule
And
Reasonably
Determined
That
They
Would
Not
Pose
A
SignificantProblem
......................
73
...
­
111­
~

4.
UWAG 
0th
r
Criticisms
of
EPA s
Track
I
Reqi
irements
Should
Be
Rejected
................................
75
B.
EPA
Reasonably
Included
Additional
Design
And
Construction
Requirements
in
40
C.
F.
R.
5
125.84@)(
4)
and
(
5)
To
Further
Minimize
Impingement
and
Entrainment
in
Certain
Circumstances
.........................................
80
C.
EPA
Reasonably
Chose
To
Set
An
Intake
Velocity
Limit
Based
on
 
Through­
Screen Velocity 
And
To
Set
The
Limit
at
0.5
Feet
Per
Second
.................................................
85
1.
EPA
Reasonably
Chose
to
Set
a
 
Through­
Screen
Velocity 
Standard
Rather
Than
an
 
Approach
Velocity 
Standard
...
86
2.
EPA s
Decision
to
Set
the
Intake
Velocity
Limit
at
0.5
ft/
s
Was
Supportedby
the
Record
and
Will
Not
Preclude
Appropriate
Technologies
...........................
87
D.
EPA s
Proportional
Flow
Limits
Are
Supportedby
The
Record
And
Were
Within
The
Scope
Of
EPA s
Reasonable
Scientific
And
Technical
Juclgment
.................................
90
1.
The
Proportional
Flow
Limits
For
Rivers
And
Estuaries
Are
SupportedBy
The
Record
And
Are
Reasonable
......
92
2.
EPA s
Protection
Of
The
Natural
Thermal
Stratification
In
Lakes
and
R­
eservoirsIs
Reasonabie
...................
95
3.
EPA
Considlered
How
Facilities
Would
Meet
The
Proportional
Flow
Limitation
And
The
Costs
Of
Doing
So
.
.
.
.
.
.
.
96
E.
The
Provision
Related
To
State
Law
Requirements
In
40
C.
F.
R.
9
125.84(
e)
Is
Authorized
by
the
Clean
Water
Act
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.99
­
iV­
111.
MISC S
PETITION
SHOULD
BE
DENIED
......................
103
A.
The
Three
Provisions
Challenged
by
MISC
Are
Within
EPA s
Authority
.............................................
103
B.
EPA
Provided
Adequate
Notice
and
OpportunityFor
Comment
On
The
Three
Provisions
Challenged
by
MISC
...............
106
C.
EPA s
Case­
By­
Calse
Provisions
Are
Consistent
With­
Prior
Regulations
...........................................
112
CONCLUSION
..................................................
113
­
V­
TABILE
OF
AUTHORITIES
FEDERAL
CASES
American
Iron
&
Steel
Inst.
v.
E&,
526
F.
2d
1027
(
3d
Cir.
1975)
...................................
31
American
Petroleum
Institute
v.
EPA,
787
F.
2d
965
(
5th
Cir.
1986)
...................................
47
Atmalachian
Power
Co.
v.
EPA:,
249
F.
3d
1032
(
D.
C.
Cir.
2001)
..................................
53
Baltimore
Gas
&
Elec.
Co.
v.
"
X,
462U.
S.
87(
1983)
...........................................
22
BASF
Wyandotte
Corp.
v.
Costlle,
598
F.
2d
637
(
1st
Cir.
19'
79)
....................................
31
BP
Exploration
and
Oil
Inc.
v.
E=,
66
F.
3d
784
(
6th
Cir.
1995)
.......................
.39,41,46,48,75
Chem.
Mfk.
Ass'n
v.
EPA,
9119
F.
2d
158
(
D.
C.
Cir.
1990)
..................................
22
Chemical
Mfrs.
Ass'n
v.
EPA,
870
F.
2d
177
(
5thCir.
19:
89)
..........................
10,30,31,77
Chevron
U.
S.
A.,
Inc.
v.
NRDC,
467
US.
837
(
1984)
.............................
.21,35,56,67,79
C.
I.
R.
v.
Lundy,
516U.
S.
235(
1996)
..........................................
33
CPC
Int'l
v.
Train,
540
F.
2d
1329
(
8th
Cir.
11376)
...............................
30,77
­
vi­
Cronin
Y.
Browner,
898
F.
Supp.
1052
(
S.
D.
N.
Y.
1995)
...........................
32,43
EDF
v.
Thomas,
870
F.
2d
892
(
2d
Cir.
1989)
....................................
32
E.
I.
duPont
de
Nemours
&
Co.
v.
Train,
430
U.
S.
112
(
1977)
....................................
30,62,69
EPA
v.
California
ex
rel.
State
Water
Resources
Control
Board,
426U.
S.
200(
1976)
..........................................
7
EPA
v.
 
NationalCrushed
Stone:,
449
U.
S.
64
(
1980)
........................................
38,61
Ethvl
COT.
v.
EPA,
541
F.
2d
1
(
D.
C.
Cir.
1976)(
en
banc)
......................
20,22,53
Hudson
Riverkeeper
Fund,
Inc.
v.
Orange
&
Rockland
Util..
Inc.,
835
F.
Supp.
160
(
S.
D.
N. 
Y.
1993)
................................
34
Huls
Am.,
Inc.
v.
Browner,
83
F.
3d
445
(
D.
C.
Cir.
1996)
...................................
22
In
Re
Public
Service
Co.
of
New
Hampshire,
10
Env t
Rep.
Cas.
(
BNA)
1257
(
1977)
...........................
70
Kennecott
v.
EPA,
780
F.
2d
445
(
4th
Cir.
19186)
...................................
46
Lead
Industries
Association
v.
Ea,
647F.
2d1130(
D.
C.
Cir.
1980)
.................................
34
Mississippi
Com n.
on
Natural
Resources
v.
Costle,
625
F.
2d
1269
(
5th
Cir.
1!
989)
..................................
34
­
vii­
Motor
Vehicle
Mfrs.
Ass n
of
IJnited
States.
Inc.
v.
State
Farm
Mut.
Auto.
Ins.
Co.,
463
U.
S.
29
(
1983)
........................................
57,75
National
Black
Media
Coalition
v.
F.
C.
C.,
791
F.
2d
1016
(
2d
Cir.
1986)
..............................
106,111
National
Wildlife
Fed.
v.
EPA,
286
F.
3d
554
(
D.
C.
Cir.
;!
002)
.....................
.30,39,47,53,77
Natural
Res.
Def.
Council
v.
Miuszynski,
268
F.
3d
91
(
2d
Cir.
200l)
.................................
.20,53
New
York
Currency
Research
COT.
v.
CFTC,
180
F.
3d
83
(
2d
Cir.
199!
2)
.....................................
68
New
York
v.
Reillv,
969
F.
2d
114 
7
(
D.
C.
Cir.
1992)
..............................
22,53
NLRB
v.
CuJ­
tin
Matheson
Scientific,
Inc.,
494
us.
775
(
1990)
..........................................
57
NRDC
v.
EPA,
537
F.
2d
642
(
2d
Cir.
1976)
....................................
61
NRDC
v.
EPA,
863
F.
2d
1420
(
9th
Cir.
1988).
...............................
47,60
P.
U.
D.
No.
1
v.
Washington
De:
p t
of
Ecolom,
511U.
S.
700(
1994)
.........................................
101
Rust
v.
Sullivan,
500
US.
173
(
1991)
..........................................
56
Seacoast
Anti­
Pollution
Leame
v.
Costle,
597
F.
2d
306
(
1st
Cir.
19 
79)
....................................
33
...
­
v111­
Small
Refiner'Lead
Phase­
Down
Task
Force
v.
EPA,
705
F.
2d
506
(
D.
C.
Cir.
l983)
............................
:.....
21
Stinson
v.
United
States,
508U.
S.
36(
1993)
...........................................
22
Sutherland
v.
Reno,
228
F.
3d
171
(
2dCir.
2000)
..............................
21,35,79
Texas
Oil
&
Gas
Ass'n
v.
EPA,
161
F.
3d
923
(
5th
Cir.
1998)
................................
35,69
United
States
Steel
Corp.
v.
Train,
556
F.
2d
822
(
7th
Cir.
1977)
................................
34,78
United
States
v.
Barial,
31
F.
3d
216
(
4th
Cir.
1994)
....................................
68
United
States
v.
L.
A.
Tucker
Truck
Lines,
344
U.
S.
33
(
1952)
...........................................
84
United
States
v.
Larionofc
431U.
S.
864(
1977)
..........................................
22
United
States
v.
Mead
Corp.,
533U.
S.
218(
2001)
..........................................
55
Virginia
Elec.
&
Power
Co.
v.
Costle,
566
F.
2d
446
(
4th
Cir.
1977)
...................................
31
Weyerhaeuser
Co.
v.
Costle,
590F.
2d
1011
(
D.
C.
Cir.
1978)
..............................
48,74
Whitrnan
v.
American
Trucking:
Associations,
531U.
S.
457(
2001)
..........................................
34
­
ix­
FEDERAL
STATUTES
2U,.
S.
C.
§
1532(
a)
.................................................
78
5
U.
S.
C.
5
706(
2)(
A)
...............................................
20
5
U.
S.
C.
$
8
551­
559,701­
706
.......................................
20
Clean
Water
Act,
33
U.
S.
C.
$
5
1251­
1387
..............................
6
CWA
5
lOl(
a),
33
U.
S.
C.
5
1251(
a)
..............................
6,55,
99
CWAS
lOl(
b),
33U.
S.
C.
5
1251(
a)
...................................
99
CWA
5
301,
33
U.
S.
C.
5
1311
.......................................
8
CWA
5
301(
a),
33
U.
S.
C.
5
1311(
a)
...................................
7
CWA
5
301(
b)(
l)(
A),
33
U.
S.
C.
5
131l(
b)(
l)(
A)
........................
30
CWA
5
301(
b)(
2)(
A),
33
U.
S.
C.
5
1311(
b)(
2)(
A)
........................
9
CWA
5
3dl(
b)(
l)(
C),
33
U.
S.
C
..
5
1311(
b)(
l)(
C)
.......................
110
CWA
$
301(
n),
33
U.
S.
C.
5
1311(
n)
...................................
60
CWA
3
304(
b)(
l)(
B).
33
U.
S.
C.,
5
1314(
b)(
l)(
B)
........................
30
CWA
5
304(
b)(
2)(
B),
33
U.
S.
C.,
5
1314(
b)(
2)(
B)
.....................
10,
30
CWA
5
304(
b)(
3),
33
U.
S.
C.
5
11314(
b)(
3)
..............................
30
CWA
5
304(
b)(
4)(
B),
33
U.
S.
C.
5
1314(
b)(
4)(
B)
........................
31
CWA
5
306.
33
U.
S.
C.
5
1316
...................................
1,8,
77
CWA
5
306(
a)(
l).
33
U.
S.
C.
3
1316(
a)(
l)
.........................
9.
10.
45
­
X­
CWA
5
306(
b).
33
U.
S.
C.
$
131.6(
b).
.................................
105
10.
CWA
5
306(
b)(
l)(
B),
33
U.
S.
C.
5
1316(
b)(
l)(
B)
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
9
,
2
9
CWA
8
306(
c).
33
U.
S.
C.
5
1316(
c)
..................................
105
CWA
5
316.
33
U.
S.
C.
5
1326
.......................................
1
CWA
5
316(
a).
33
U.
S.
C.
8
132:
6(
a)
...................................
67
CWA
5
316(
b),
33
U.
S.
C.
5
132!
6(
b)
.........................
1.4.8.29.
103
CWA
5
401.
33
U.
S.
C.
§
1341
..................................
100.
111
CWA
5
401(
d).
33
U.
S.
C.
5
13411(
d)
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
..
26.99.100.101.
102
CWA
5
509(
b).
33
U.
S.
C.
5
1369(
b)
................................
7.
102
CWA
Cj
509(
b)(
l).
33
U.
S.
C.
5
:
1369(
b)(
1)
............................
1.
20
CWA
5
509(
b)(
l)(
E).
33
U.
S.
C.
§
1369(
b)(
l)(
E)
.........................
1
CWA
$
510.
33
U.
S.
C.
5
1370
......................
.26.100.102.109.
111
FEDERAL
REGULATIONS
40C.
F.
R.
g
122
...................................................

40C.
F.
R.
5
122.2
.................................................
108
40C.
F.
R.
5
123.30
..............................................
7.
102
40C.
F.
R.
g
124.2
108
.................................................

40C.
F.
R.
g
124.19
..............................................
7.
102
40
C.
F.
R.
§
.
124.53(
d)
.............................................
100
­
xi­
1
40C.
F.
R.
s
124.53(
e)
.............................................
100
40
C.
F.
R.
125.80(
c)
............................
103.104.106.107.
109
40C.
F.
W.
s
125.84
................................................
105
40C.
F.
W.
g
125.84(
b)
..............................................
5
40C.
F.
R.
5
125.84(
b)(
2)
............................................
2
40
C.
F.
R.
5
125.84(
b)(
3)
.......................................
2,90,
96
40
C.
F.
12.5
125.84(
b)(
3)(
i)
..........................................
91
40
C.
F.
R.
125.84(
b)(
3)(
ii)
.........................................
96
40
C.
F.
R.
125.84(
b)(
4)
...................................
.2,26,80,
89
40
C.
F.
R.
5
125.84(
b)(
5)
....................................
2,26,80,
89
40
C.
F.
R.
5
125.84(
d)
.........................................
5,58,
89
40
C.
F.
R.
tj
125.84(
d)(
1)
............................................
49
40
C.
F.
R.
$
125.84(
d)(
l)(
i)
..........................................
54
40C.
F.
R.
§
125.84(
e)
....................
3,26,99,103.106,109.
110.
111
40C.
F.
R.
9
125.84(
g)
.........................................
109.
110
40
C.
F.
R.
tj
125.85
............................................
6,75,
99
4OC.
FR.
§
125.85
.................................................
59
40
C.
F.
R.
fj
125.85(
a)(
2)
............................................
60
40
C.
F.
R.
5
125.86(~)(
2).........................................
52,
58
­
xii­
40
C.
F.
R.
§
125.86(
c)(
2)(
i)
..........................................
58
40
C.
F.
R.
5
125,86(
c)(
2)(
ii)
.........................................
54
40
C.
F.
R.
8
125.89(
b)
.............................................
108
40
C.
F.
R.
8
125.89(
b)(
l)(
i)
.............................
103,104,107,108
FEDERAL
REGISTER
39
Fed.
Reg.
6579
(
Feb.
20,1974)
....................................
61
51
Fed.
Reg.
24,974
(
July
9,19136)­....................................
31
61
Fed.
Reg.
57,518
(
Nov.
6,1996)
...................................
49
65
Fed.
Reg.
49,060
(
Aug.
10,2!
000)
..................................
13
66
Fed.
Reg.
28,869
(
May
25,2001)
..................................
17
66
Fed.
Reg.
65,256,65,262­
63
(
Dec.
18,2001)
.....................
passim
EXECUTIVE
ORDERS
Executive
Order
12,866,
8
10,58
Fed.
Reg.
51,735,51,744
(
Sept.
30,
1993).
..
78
LEGISLATIVE
HISTORY
118
Cong.
Rec.
33,762
(
1972),
reprinted
in
1
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
9YdCong.,
lStSess.,
at
264
(
Corn.
Print
1973)
.
.
.
.
.
.
.
.
.
.
.
.
.
.33,69,78
Pub.
L.
No.
100­
4,
§
306,
reprinted
in
1987U.
S.
C.
C.
A.
N.
5,22(
1987).................................
61
...
­
x111­
APA
BAT
BADT
BPJ
BTA
CWA
EA
Entrainment
EPA
Impingement
JA
MGD
MISC
NODA
NPDES
Rule
TDD
UMRA
UWAG
GLOSSARY
Adrninistratj.
veProcedure
Act,
5
U.
S.
C.
$
5
551­
559,701­
706
Best
Availalile
Technology
Best
Available
Demonstrated
Technology
Best
Professional
Judgment
Best
Technollogy
Available
Clean
Water
Act
Economic
Assessment
When
organisms
are
pulled
into
and
through
the
facility s
cooling
system
United
States
Environmental
Protection
Agency
When
organisms
are
trapped
against
a
cooling
water
intake
structure
by
the
force
of
inflowing
water
Joint
Appendix
Millions
of
Gallons
per
Day
Petitioner
ManufacturersIntake
Structure
Coalition
Notice
of
Data
Availability
National
Pollution
Discharge
Elimination
System
EPA s
 
Regulation
Addressing
Cooling
Water
Intake
Structures
for
New
Facilities, 
66
Fed.
Reg.
65,255
(
Dec.
18,
2001).

Technical
Development
Document
Unfunded
Mandates
Refonn
Act,
2
U.
S.
C.
5
1532(
a).

Petitioner
Utility
Water
Act
Group
1/
The
citation
of
the
CWA
provisions
is
potentially
confusing
because
numbering
of
the
CWA
sections
does
not
match
the
numbering
of
the
provisions
in
the
United
States
Code.
For
example,
CWA
§
316
is
codified
at
33
U.
S.
C.
§
1326,
and
CWA
§
306
is
codified
at
33
U.
S.
C.
§
1316.
To
minimize
that
confusion,
EPA
will
clearly
identify
whether
it
is
referring
to
the
CWA
section
("
CWA
§
___")
or
the
United
States
Code
section
("
33
U.
S.
C.
§
___").
JURISDICTION
Petitioners
challenge
certain
aspects
of
EPA's
"
Regulation
Addressing
Cooling
Water
Intake
Structures
for
New
Facilities,"
66
Fed.
Reg.
65,255
(
Dec.
18,

2001),
40
C.
F.
R.
§
122
et.
seq.
(
the
"
Rule"),
promulgated
pursuant
to
Section
316(
b)
of
the
Clean
Water
Act
("
CWA"),
33
U.
S.
C.
§
1326(
b).
1/
The
petitions
were
timely
filed
under
33
U.
S.
C.
§
1369(
b)(
1),
and
this
Court
has
jurisdiction
under
33
U.
S.
C.
§
1369(
b)(
1)(
E).

ISSUES
PRESENTED
A.
Environmental
Petitioners'
and
Amicus's
Issues
1.
Whether
EPA
reasonably
established
performance
requirements
reflecting
the
best
technology
available
for
cooling
water
intake
structures
at
new
facilities?

2.
Whether
EPA
reasonably
allowed
facilities
to
use
technologies
of
their
choosing
as
long
as
they
achieve
performance
comparable
to
that
which
would
be
achieved
by
compliance
with
the
requirements
reflecting
best
technology
available?
­
2
­
3.
Whether
EPA
reasonably
provided
permitting
authorities
the
flexibility
to
establish
less
stringent
permit
terms
if
the
costs
of
compliance
with
the
best
technology
available
would:
(
a)
result
in
compliance
costs
wholly
disproportionate
to
the
costs
considered
by
EPA;
or
(
b)
cause
adverse
environmental
impacts
not
considered
by
EPA?

B.
Utility
Water
Act
Group
(
UWAG)'
s
Issues
1.
Whether
EPA
reasonably
focused
on
impingement
and
entrainment
in
establishing
requirements
to
minimize
the
adverse
environmental
impact
of
cooling
water
intake
structures?

2.
Whether
EPA
reasonably
included
additional
design
and
construction
requirements
in
40
C.
F.
R.
§
125.84(
b)(
4)
and
(
5)
to
further
minimize
impingement
and
entrainment
in
certain
circumstances?

3.
Whether
EPA
in
40
C.
F.
R.
§
125.84(
b)(
2)
reasonably
limited
the
velocity
at
which
water
is
drawn
into
intake
structures
as
measured
at
the
location
where
impingement
occurs
(
called
"
through­
screen
velocity"),
and
whether
EPA
reasonably
set
the
"
through­
screen
velocity"
limit
at
0.5
feet
per
second?

4.
Whether
EPA's
"
proportional
flow
limits"
in
40
C.
F.
R.
§
125.84(
b)(
3)

(
which
limit
the
volume
of
water
that
a
facility
may
intake
based
on
the
size
of
the
water
body
from
which
it
is
removing
water)
are
supported
by
the
record
and
were
within
the
scope
of
EPA's
reasonable
scientific
and
technical
judgment?
­
3
­
5.
Whether
the
provision
requiring
compliance
with
certain
state
law
requirements
in
40
C.
F.
R.
§
125.84(
e)
is
authorized
by
the
Clean
Water
Act?

C.
Manufacturers
Intake
Structure
Coalition
(
MISC)'
s
Issues
1.
Whether
the
three
regulatory
provisions
challenged
by
MISC
(
which
concern
(
1)
"
case­
by­
case"
requirements
imposed
on
smaller
intake
structures,

(
2)
the
requirement
that
permitting
agencies
review
permits
at
the
time
of
reissuance,
and
(
3)
the
provision
requiring
compliance
with
certain
state
law
requirements)
were
within
EPA's
authority
to
promulgate?

2.
Whether
EPA
provided
adequate
opportunity
for
notice
and
comment
on
the
three
provisions
challenged
by
MISC?

3.
Whether
EPA's
"
case­
by­
case"
provisions
imposed
on
smaller
intake
structures
are
inconsistent
with
prior
regulations?

STATEMENT
OF
THE
CASE
A.
Nature
Of
The
Case
Electric
power
plants
and
manufacturing
facilities
typically
use
large
amounts
of
cooling
water
in
their
power
generation
and
manufacturing
processes
to
absorb
waste
heat.
To
obtain
that
water,
these
facilities
employ
"
cooling
water
intake
structures"
that
collectively
withdraw
hundreds
of
billions
of
gallons
of
water
each
day
from
our
nation's
lakes,
rivers
and
other
water
bodies.
66
Fed.
Reg.
at
65,262
(
JA
XX).
As
these
structures
withdraw
such
large
volumes
of
water,
they
also
2/
"
Impingement"
occurs
when
organisms
are
trapped
against
the
intake
structures
by
the
force
of
the
inflowing
water,
and
can
cause
suffocation,
starvation
and
physical
injury
to
the
trapped
organisms.
"
Entrainment"
occurs
when
organisms
are
pulled
into
and
through
the
facility's
cooling
system,
which
can
cause
death
and
injury
from
the
machines,
heat
and
chemical
processes
that
are
part
of
the
cooling
system.
A
more
detailed
description
of
impingement
and
entrainment
is
provided
at
66
Fed.
Reg.
65,256,
65,262­
63
(
Dec.
18,
2001)
(
JA
XX­
XX).

3/
Performance
requirements
for
cooling
water
intake
structures
at
existing
facilities
will
be
established
by
separate
rulemakings
in
Phases
II
and
III.

­
4
­
"
impinge"
and
"
entrain"
aquatic
organisms
of
all
varieties
 
from
the
smallest
plankton,
fish
eggs
and
larvae
to
the
largest
adult
fish.
66
Fed.
Reg.
at
65,262­
63
(
JA
XX­
XX).
2/
The
environmental
impacts
from
impingement
and
entrainment
are
not
only
the
immediate
effects
on
the
affected
organisms,
but
can
also
include
secondary
effects
on
populations
and
ecosystems.

Clean
Water
Act
§
316(
b)
requires
that
"
the
location,
design,
construction,

and
capacity
of
cooling
water
intake
structures
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impact."
33
U.
S.
C.
§
1326(
b).
The
Rule
at
issue
in
this
case
is
"
Phase
I"
of
EPA's
implementation
of
CWA
§
316(
b).
It
establishes
performance
requirements
for
the
cooling
water
intake
structures
at
new
facilities.
3/

In
the
Rule,
EPA
took
a
two­
track
approach
towards
minimizing
adverse
environmental
impact.
Track
I
of
the
Rule
contains
requirements
for
(
1)
intake
flow
4/
Closed­
cycle
recirculating
wet
cooling
technology
recycles
the
cooling
water
and
dissipates
heat
through
evaporative
cooling.
A
more
complete
description
of
the
technology
can
be
found
at
66
Fed
Reg.
at
65,282/
2
(
JA
XX).

­
5
­
volume
limits
based
on
what
can
be
achieved
with
a
technology
referred
to
as
closed­
cycle
recirculating
wet
cooling
technology;
4/
(
2)
intake
flow
velocity
(
restricting
the
speed
at
which
water
may
move
through
the
intake
structure);

(
3)
proportional
flow
limits
(
which
limit
intake
volume
based
on
the
size
of
the
specific
water
body
from
which
the
water
is
being
withdrawn);
and
(
4)
design
and
construction
technologies
for
minimizing
impingement
and
entrainment.
40
C.
F.
R.

§
125.84(
b);
66
Fed.
Reg.
at
65,259­
60
(
JA
XX­
XX).
Track
II
of
the
Rule
allows
a
new
facility
to
employ
technologies
other
than
those
on
which
Track
I
is
based
if
the
operator
can
demonstrate
that
(
1)
the
other
technologies
achieve
reductions
in
impingement
and
entrainment
comparable
to
those
that
would
be
achieved
under
Track
I;
and
(
2)
the
facility
will
meet
the
Track
I
proportional
flow
limitations.

40
C.
F.
R.
§
125.84(
d);
66
Fed.
Reg.
at
65,260
(
JA
XX).
Finally,
EPA's
Rule
allows
facilities
to
request
less
stringent
alternative
requirements
based
on
a
demonstration
that
(
1)
the
otherwise
applicable
requirements
would
either
(
a)
impose
compliance
costs
that
are
wholly
out
of
proportion
to
the
costs
considered
by
EPA
in
this
rulemaking,
or
(
b)
cause
significant
adverse
environmental
impacts
or
increased
energy
use;
(
2)
the
alternative
requirements
are
­
6
­
no
less
stringent
than
justified
by
the
wholly
out
of
proportion
costs
or
the
adverse
impacts
caused
by
the
otherwise
applicable
requirements;
and
(
3)
the
alternative
requirements
will
ensure
compliance
with
other
CWA
or
state
law
requirements.

40
C.
F.
R.
§
125.85;
66
Fed.
Reg.
at
65,322
(
JA
XX).
In
short,
EPA's
Rule
will
minimize
impingement
and
entrainment
(
and
the
other
environmental
impacts
that
come
from
impingement
and
entrainment)
while
at
the
same
time
provide
facilities
with
significant
flexibility
in
how
they
achieve
these
requirements.

In
this
case,
as
is
often
true,
interested
parties
with
a
variety
of
viewpoints
have
challenged
EPA's
Rule.
Industry
petitioners
claim
that
EPA's
regulation
is
too
stringent
and
not
flexible
enough
to
recognize
the
different
circumstances
faced
by
each
facility.
Environmental
group
petitioners
claim
that
EPA's
regulation
is
not
stringent
enough
and
provides
too
much
flexibility.
As
demonstrated
below,
neither
group
of
petitioners
is
correct.
In
this
Rule,
EPA
reasonably
implemented
the
requirements
of
CWA
§
316(
b),
and
this
Court
should
uphold
EPA's
regulation
in
all
respects.

B.
Statutory
Background
The
purpose
of
the
Federal
Water
Pollution
Control
Act,
also
known
as
the
Clean
Water
Act
("
CWA"),
33
U.
S.
C.
§
1251­
1387,
is
"
to
restore
and
maintain
the
chemical,
physical,
and
biological
integrity
of
the
Nation's
waters."
33
U.
S.
C.
§
­
7
­
1251(
a).
To
accomplish
this
end,
the
CWA
establishes
a
comprehensive
regulatory
program,
key
elements
of
which
are:
(
1)
a
prohibition
on
the
discharge
of
pollutants
from
point
sources
to
waters
of
the
United
States,
except
as
authorized
by
the
CWA;
(
2)
authority
for
EPA
or
authorized
States
or
Tribes
to
issue
National
Pollutant
Discharge
Elimination
System
("
NPDES")
permits
that
regulate
the
discharge
of
pollutants;
and
(
3)
requirements
for
EPA
to
develop
effluent
limitation
guidelines
and
standards
and
for
States
to
develop
water
quality
standards
that
are
the
basis
for
NPDES
permit
limitations.
Permits
issued
to
dischargers
under
the
NPDES
program
transform
the
generally
applicable
technology­
based
regulations
and
state
water
quality
standards
into
specific
discharge
limits
applicable
to
that
facility.
EPA
v.
California
ex
rel.
State
Water
Resources
Control
Board,
426
U.
S.

200,
205
(
1976).
Where
there
is
no
nationally
applicable
technology­
based
standard,
permit
authorities
develop
discharge
limitations
on
a
"
best
professional
judgment"
(
or
"
BPJ")
basis.
NPDES
permits
are
subject
to
judicial
review
under
state
procedures
for
state­
issued
permits
(
40
C.
F.
R.
§
123.30)
or,
following
an
administrative
challenge
to
EPA
under
40
C.
F.
R.
§
124.19,
judicial
review
in
federal
court
under
CWA
§
509(
b),
33
U.
S.
C.
§
1369(
b).

Most
of
the
provisions
of
the
CWA
protect
the
nation's
waters
by
regulating
discharges
into
waters
of
the
United
States.
See,
e.
g.,
33
U.
S.
C.
§
1311(
a)
("
Except
­
8
­
as
in
compliance
with
this
section
and
sections
[
33
U.
S.
C.]
1312,
1316,
1317,
1328,

1342,
and
1344,
of
this
title,
the
discharge
of
any
pollutant
by
any
person
shall
be
unlawful.")
In
this
case,
however,
the
statutory
provision
at
issue
protects
the
nation's
waters
from
environmental
impacts
caused
by
the
intake
of
water.

In
CWA
§
316(
b),
33
U.
S.
C.
§
1326(
b),
Congress
required
that
any
CWA
permit
setting
effluent
discharge
limits
would
also
require
that
any
cooling
water
intake
structures
for
that
facility
"
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impact."
Section
316(
b),
33
U.
S.
C.
§
1326(
b),

states,
in
full:

Any
standard
established
pursuant
to
[
33
U.
S.
C.
§
§
1311
or
1316]
and
applicable
to
a
point
source
shall
require
that
the
location,
design,
construction,
and
capacity
of
cooling
water
intake
structures
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impact.

The
phrase
"
best
technology
available"
in
CWA
§
316(
b)
is
not
defined
in
the
statute,
but
its
meaning
can
be
understood
in
light
of
similar
phrases
used
elsewhere
in
the
CWA.

In
CWA
§
§
301
and
306,
33
U.
S.
C.
§
§
1311
and
1316,
Congress
directed
EPA
to
set
effluent
discharge
standards
for
new
sources
based
on
the
"
best
available
demonstrated
technology"
and
for
existing
sources
based
on
the
"
best
available
5/
For
new
sources,
33
U.
S.
C.
§
1316(
b)(
1)(
B)
directs
EPA
to
establish
"
standards
of
performance."
The
phrase
"
standards
of
performance"
under
33
U.
S.
C.
§
1316(
a)(
1)
is
defined
as
being
the
effluent
reduction
that
is
"
achievable
through
application
of
the
best
available
demonstrated
control
technology,
processes,
operating
methods
or
other
alternatives
.
.
.
."
This
is
commonly
referred
to
as
"
best
available
demonstrated
technology"
or
"
BADT."
For
existing
sources,
33
U.
S.
C.
§
1311(
b)(
2)(
A)
directs
EPA
to
establish
effluent
limitations
"
which
shall
require
the
application
of
the
best
available
technology
economically
achievable"
for
each
category
or
class
of
sources.
This
is
commonly
referred
to
as
"
best
available
technology"
or
"
BAT."

­
9
­
technology."
5/
Under
these
provisions,
the
discharge
of
pollutants
from
point
sources
is
based
not
on
the
impact
of
the
discharge
on
the
receiving
waters,
but
instead
upon
the
capabilities
of
the
equipment
or
"
control
technologies"
available
to
control
those
discharges.

The
phrases
"
best
available
demonstrated
technology"
and
"
best
available
technology"
 
like
"
best
technology
available"
in
CWA
§
316(
b)
 
are
not
expressly
defined
in
the
statute.
However,
the
CWA
specifies
factors
to
be
considered
in
establishing
the
"
best
available
demonstrated
technology"
and
"
best
available
technology."

For
"
best
available
technology,"
the
CWA
directs
EPA
to
consider:

the
age
of
equipment
and
facilities
involved,
the
process
employed,
the
engineering
aspects
.
.
.
of
various
types
of
control
techniques,
process
changes,
the
cost
of
achieving
such
effluent
reduction,
non­
water
quality
environmental
impacts
(
including
energy
requirements),
and
such
other
factors
as
[
EPA]
deems
appropriate.
6/
Court
opinions
concerning
these
phrases
are
discussed
below
in
Argument
Sections
I.
A.
1
and
II.
A.
4
below.

­
10
­
33
U.
S.
C.
§
1314(
b)(
2)(
B).
For
"
best
available
demonstrated
technology,"
EPA
is
required
to
take
into
consideration
the
cost
of
achieving
the
effluent
reduction
and
any
non­
water
quality
environmental
impacts
and
energy
requirements.
33
U.
S.
C.
§
1316(
b)(
1)(
B).
In
doing
this,
EPA
typically
considers
whether
the
cost
of
the
option
under
consideration
will
be
a
"
barrier
to
entry"
for
some
facilities
(
meaning
that
the
cost
would
prevent
facilities
from
entering
the
market),
and
whether
the
costs
can
reasonably
be
borne
by
the
industry.
Chemical
Mfrs.
Ass'n
v.
EPA,
870
F.
2d
177,
202
(
5th
Cir.
1989).
Because
new
facilities
have
the
opportunity
to
install
the
best
and
most
efficient
production
processes
and
wastewater
treatment
technologies,
and
in
light
of
the
plain
language
of
33
U.
S.
C.
§
1316(
a)(
1),
EPA
properly
considers
the
best
demonstrated
process
changes,
in­
plant
controls,
and
end­
of­
process
control
and
treatment
technologies
that
reduce
pollution
to
the
greatest
degree
achievable.

Based
on
these
statutory
provisions
and
court
opinions
concerning
the
phrases
"
best
available
demonstrated
technology"
and
"
best
available
technology,"
6/
EPA
interpreted
the
similarly
worded
phrase
"
best
technology
available"
to
have
a
similar
7/
Hereinafter,
Comment
Responses
for
316bNFR
will
be
cited
as
"
CR"
and
the
comment
number.
For
example,
"
CR
068.007."

­
11
­
meaning.
Comment
Response
316bNFR.
068.007
at
11837/
(
JA
XX).
Specifically,

EPA
interpreted
CWA
§
316(
b)
as
authorizing
EPA
to:
(
1)
establish
national
requirements
to
install
technology
that
was
"
technically
available,
economically
practicable,
and
where
EPA
has
considered
the
other
environmental
impacts
of
the
requirements,
such
as
[
increased
energy
use],"
CR
068.007
at
1182
(
JA
XX);
and
(
2)

establish
flexibility
to
allow
the
use
of
other
technologies
that
achieve
comparable
reductions
in
environmental
impacts.
CR
068.007
at
1182
(
JA
XX).
See
also
CR
206.014
at
1889­
90
(
JA
XX­
XX)
(
CWA
§
316(
b)
does
not
require
EPA
to
conduct
a
cost­
benefit
assessment,
but
does
permit
EPA
to
reasonably
consider
a
technology's
"
economic
achievability"
in
a
manner
that
is
analogous
to
how
costs
are
considered
for
"
best
available
technology"
and
"
best
available
demonstrated
technology").

STATEMENT
OF
FACTS
A.
Cooling
Water
Intake
Structures
EPA
considered
several
types
of
cooling
water
intake
systems
and
evaluated
their
effectiveness
in
reducing
impingement
and
entrainment.
EPA
determined
that
the
key
elements
in
reducing
the
level
of
impingement
and
entrainment
are
(
1)
the
volume
of
water
withdrawn
from
the
source
waterbody
into
the
cooling
water
intake
8/
Capacity
reflects
the
volume
of
water
that
can
be
withdrawn
through
a
cooling
water
intake
structure
over
a
period
of
time.
Limiting
the
volume
of
water
withdrawn
from
a
waterbody
typically
reduces
the
number
of
aquatic
organisms
in
that
waterbody
that
otherwise
would
be
entrained.
Reducing
the
capacity
of
a
cooling
water
intake
system
is
one
of
the
most
effective
ways
to
reduce
entrainment.
66
Fed.
Reg.
at
65,273/
2
(
JA
XX).

9/
In
the
direct
vicinity
of
the
intake
structure,
the
velocity
of
the
water
entering
the
structure
exerts
a
direct
physical
force
against
which
fish
and
other
organisms
must
act
to
avoid
impingement
and
entrainment.
Intake
velocity
is
one
of
the
key
factors
that
affects
the
impingement
of
fish
and
other
aquatic
biota.
66
Fed.
Reg.
at
65,274/
1
(
JA
XX).

10/
Locating
the
intake
structure
in
a
waterbody
that
is
sufficiently
large
in
proportion
to
the
amount
of
water
withdrawn
can
reduce
impingement
and
entrainment.
Proportional
flow
limitations
restrict
the
intake
flow
to
a
capacity
appropriate
for
the
size
of
the
waterbody.
66
Fed.
Reg.
at
65,276/
3­
277/
3
(
JA
XXXX

­
12
­
system
("
capacity");
8/
(
2)
the
speed
at
which
the
water
is
taken
into
the
cooling
water
intake
system
("
velocity");
9/
and
the
size
of
the
waterbody
in
which
the
intake
is
located
("
proportion").
10/

"
Once­
through"
cooling
systems
withdraw
water
and
circulate
it
once
through
the
facility's
cooling
system,
and
discharge
heated
water
back
into
the
source
waterbody.
Because
a
once­
through
cooling
systems
requires
continuous
withdrawal
of
a
large
volume
of
water
from
the
source
waterbody,
a
single
system
11/
For
a
complete
description
of
once­
through
technology
and
its
environmental
impacts,
see
Technical
Development
Document
for
the
Final
Regulations
("
TDD")
at
2
 
1
(
JA
XX).

12/
A
more
complete
description
of
this
technology
can
be
found
at
66
Fed
Reg.
at
65,282/
2
(
JA
XX);
TDD
at
2­
2
(
JA
XX).

­
13
­
can
remove
as
much
as
3.2
billion
gallons
of
water
per
day
from
a
source
waterbody.
11/

Closed­
cycle
recirculating
wet
cooling
systems
withdraw
significantly
less
water
for
cooling
than
once­
through
systems.
Rather
than
discharging
the
heated
water
back
into
the
source
waterbody,
the
heat
is
dissipated
through
evaporative
cooling
in
ponds
or
towers,
and
the
water
is
then
recycled
through
the
facility's
cooling
system.
12/

Dry
cooling
systems
require
even
less
intake
of
water
than
the
closed­
cycle
technology.
They
use
either
a
natural
or
mechanical
air
draft
to
transfer
heat
from
condenser
tubes
to
air.
66
Fed.
Reg.
at
65,282/
2
(
JA
XX).
There
are
also
hybrid
systems,
that
combine
wet
and
dry
cooling.
66
Fed.
Reg.
at
65,305/
2
(
JA
XX).

Other
technologies
to
reduce
impingement
and
entrainment
include
intake
screens,
which
mechanically
screen
debris
from
the
intake
structure,
65
Fed.
Reg.

49,060,
49,093/
2
(
Aug.
10,
2000)
(
JA
XX);
passive
intake
systems,
which
screen
out
debris
and
biota
with
little
or
no
mechanical
activity,
65
Fed.
Reg.
at
49,093/
3
(
JA
XX);
diversion
or
avoidance
systems,
which
are
devices
designed
to
take
13/
These
are
commonly
referred
to
as
"
operational
measures"
and
include
such
things
as:
(
1)
variable
speed
pumps
that
automatically
reduce
intake
based
on
the
temperature
of
the
source
water
and
the
cooling
needs
of
the
facility;
(
2)
intermittent
or
seasonal
flow
reductions
that
correspond
to
migrations
or
spawning;
and
(
3)
more
frequent
cleaning
or
rotating
of
screens
to
remove
debris
and
ensure
proper
operation.

14/
Although
not
always
true,
moving
the
intake
from
the
shoreline
to
a
location
farther
from
shore
or
at
a
different
point
in
the
water
column
often
will
affect
the
amount
of
impingement
and
entrainment.

15/
Restoration
measures
may
include,
for
example,
conservation
of
fish
or
aquatic
organisms,
enhancement
of
the
aquatic
habitat
harmed
or
destroyed
by
the
cooling
water
intake
system,
creation
of
new
habitats
to
serve
as
spawning
or
nursery
areas,
or
creation
of
a
fish
hatchery
to
restock
fish
being
impinged
and
entrained
with
fish
that
perform
a
similar
function
in
the
aquatic
community.

­
14
­
advantage
of
the
natural
behavioral
patterns
of
fish
so
that
the
fish
will
not
enter
the
intake
structure,
65
Fed.
Reg.
at
49,094/
1
(
JA
XX);
and
fish
handling
systems,

which
collect
fish
and
other
organisms
that
have
been
impinged
and
safely
transport
them
back
to
open
waters,
65
Fed.
Reg.
at
49,093/
2
(
JA
XX).
See
also,
66
Fed.

Reg.
at
65,279/
1
(
JA
XX).

EPA
also
considered
various
ways
that
the
equipment
can
be
operated
to
reduce
impingement
and
entrainment,
13/
and
how
the
location
of
the
intake
can
reduce
impingement
and
entrainment.
14/
In
addition,
EPA
considered
restoration
measures
as
a
technology
for
minimizing
adverse
environmental
impact.
66
Fed.

Reg.
at
65,280/
3
(
JA
XX).
15/
Such
measures
are
designed
to
compensate
for
­
15
­
organisms
that
are
impinged
or
entrained,
and
thereby
reduce
the
net
loss
resulting
from
the
intake
structure.

The
effectiveness
of
these
different
technologies
in
reducing
impingement
and
entrainment
varies
greatly
depending
not
only
upon
the
technology,
but
also
on
site­
specific
characteristics
such
as
the
location
of
the
facility,
the
volume
of
the
source
waterbody,
whether
it
is
salt
or
fresh
water,
the
types
of
fish
and
shellfish
in
the
waterbody,
and
other
factors.
TDD
at
5­
1
(
JA
XX).

B.
Regulatory
Background
Prior
to
this
Rule,
cooling
water
intake
structures
were
regulated
by
the
permitting
authority
on
a
case­
by­
case,
site­
specific
basis.
The
permitting
authority
was
required
to
use
"
best
professional
judgment"
to
determine
the
"
best
technology
available
[
to]
minimiz[
e]
adverse
environmental
impact"
at
each
facility.
66
Fed.

Reg.
at
65,262/
1­
2
(
JA
XX).
To
assist
permitting
officials
in
the
exercise
of
their
best
professional
judgment,
EPA
published
draft
guidance.
See
Draft
Guidance
for
Evaluating
the
Adverse
Impact
of
Cooling
Water
Intake
Structures
on
the
Aquatic
Environment:
Section
316(
b)
P.
L.
92­
500
(
EPA,
1977)
(
JA
XX­
XX).
The
Guidance
proposed
a
detailed
process
involving
the
development
of
a
site­
specific
study
of
the
environmental
impacts
associated
with
each
facility
and
recommended
a
basis
for
determining
the
best
technology
available
to
minimize
the
adverse
environmental
impact
at
that
facility.
In
implementing
the
Guidance,
most
16/
See,
e.
g.,
In
the
Matter
of
Public
Service
Co.
of
New
Hampshire,
et
al.,
(
Seabrook
Stations
1
and
2)
NPDES
Case
No.
76­
7
(
NPDES
Permit
Application
No.
NH
0020338,
1977
NPDES
LEXIS
6
(
June
10,
1977);
Decision
of
the
General
Counsel,
No.
63
In
re
Central
Hudson
Gas
&
Elec.
Corp.,
(
July
29,
1977).
CR
206.014
at
1889
(
JA
XX).

17/
In
the
process,
EPA
issued
a
22­
page
preliminary
survey
to
2,600
existing
facilities,
followed
up
by
a
lengthy
questionnaire
seeking
detailed
information
concerning
the
technologies
in
use,
the
effectiveness
of
the
technologies
in
reducing
impingement
and
entrainment,
and
the
capital
and
operating
costs
of
the
technologies.
EPA
also
purchased
information
from
a
proprietary
database
that
provided
data
on
projected
new
facilities,
including
the
size
of
planned
facilities,
the
potential
locations
of
new
facilities,
the
design
of
the
cooling
water
intake
structure,
the
volume
of
water
projected
to
be
taken
in,
and
detailed
financial
information.
66
Fed.
Reg.
at
65,265/
2­
268/
1
(
JA
XX­
XX).

­
16
­
permitting
authorities
applied
a
"
wholly
disproportionate
test"
that
determined
whether
the
costs
of
the
technology
were
wholly
disproportionate
to
the
environmental
benefits.
16/
The
permitting
process
was
resource
intensive,
often
leading
to
lengthy
challenges.
66
Fed.
Reg.
at
65,262/
2
(
JA
XX).
Moreover,
the
case­
by­
case
approach
often
resulted
in
different
technology
requirements
at
similarly
situated
facilities.

To
replace
this
regime,
this
Rule
establishes
technology­
based
performance
requirements
for
cooling
water
intake
structures
at
new
facilities
nationwide.

During
the
rulemaking,
EPA
developed
extensive
information
concerning
cooling
water
intake
structures.
17/
Based
on
its
assessment
of
the
information,
EPA
published
its
proposed
rule
on
August
10,
2000.
65
Fed.
Reg.
at
49,075
(
JA
XX).
­
17
­
The
proposed
rule
included
capacity
requirements
based
on
closed­
cycle
recirculating
wet
cooling
technology,
and
a
velocity
limitation
of
0.5
ft/
sec.
for
biologically
sensitive
areas.
65
Fed.
Reg.
at
49,088/
2
(
JA
XX).
EPA
also
proposed
"
proportional
flow
requirements,"
which
limit
the
volume
of
water
that
a
facility
may
intake
based
on
the
size
of
the
water
body
from
which
it
is
removing
water.

The
proposal
also
included
a
provision
giving
the
permitting
authority
discretion
to
require
different
identified
technologies,
when
appropriate,
based
on
a
site­
specific,

case­
by­
case
analysis.
65
Fed.
Reg.
at
49,082/
2
(
JA
XX)
.
EPA
received
substantial
comment
on
the
proposal
from
both
industry
groups
and
environmental
groups.

On
May
25,
2001,
EPA
issued
a
Notice
of
Data
Availability
("
NODA"),

summarizing
the
information
it
had
collected
and
received
in
response
to
the
proposed
rule.
66
Fed.
Reg.
at
28,853
(
JA
XX).
In
the
NODA,
EPA
solicited
further
comment
on
various
two­
track
approaches.
66
Fed.
Reg.
28,869­
70
(
JA
XX­
XX).
In
response
to
its
proposed
rule
and
NODA,
EPA
received
and
considered
over
2000
public
comments
and,
during
that
period,
conducted
significant
public
outreach
to
solicit
further
input.
By
the
time
EPA
made
its
final
determination,
it
had
extensive
information
about
cooling
water
intake
structures
and
the
facilities
that
would
likely
be
subject
to
the
rule.
­
18
­
During
the
rulemaking
process,
the
industry
groups
­
led
by
petitioner
UWAG
­
advocated
a
two­
track
approach,
in
which
Track
I
would
require
compliance
with
a
suite
of
technologies
identified
as
the
"
best
technology
available,"
and
Track
II
would
permit
a
site­
specific,
case­
by­
case
determination
of
best
technology
available,
similar
to
the
approach
used
under
the
1977
Draft
Guidance.
EPA
rejected
the
Track
I
approach
advocated
by
the
industry
group
because
EPA
did
not
believe
the
suite
of
technologies
proposed
reflected
controls
representing
the
best
technology
available.
Instead,
EPA
adopted
performance
requirements
in
the
final
Rule
based,
in
part,
on
closed­
cycle
recirculating
wet
cooling
systems,
which
EPA
determined
to
be
more
effective
at
reducing
impingement
and
entrainment,
and
which
EPA
found
to
be
both
technically
available
and
economically
practicable.
66
Fed.
Reg.
at
65,284/
3
(
JA
XX).

EPA
also
rejected
the
industry
groups'
Track
II
approach,
because
EPA
determined
that
measurement
of
reductions
in
impingement
and
entrainment
was
more
objective
and
more
efficient
than
the
population
studies
proposed
by
industry.

Further,
EPA
believed
that
the
site­
specific,
case­
by­
case
approach
favored
by
the
industry
groups
was
too
slow
for
permitting
new
facilities.
66
Fed.
Reg.
at
65,284/
2­
85/
2
(
JA
XX­
XX).
Instead,
EPA
adopted
a
Track
II
approach
in
the
final
Rule
that
would
provide
a
facility
the
flexibility
to
employ
the
technologies
the
­
19
­
industry
groups
had
suggested
for
its
proposed
Track
I,
as
long
as
the
applicant
could
demonstrate
that
its
technologies
would
result
in
reduction
of
impingement
and
entrainment
comparable
to
that
which
would
be
achieved
under
EPA's
Track
I
approach
.

The
environmental
groups
also
commented
during
the
rulemaking
process
and
advocated
dry
cooling
technology
as
the
best
technology
available
for
minimizing
adverse
environmental
impact.
EPA
rejected
dry
cooling
as
the
basis
for
best
technology
available
for
several
reasons:
(
1)
the
high
costs
of
dry
cooling
could
be
a
barrier
to
entry
for
some
projected
facilities,
and
would
create
a
disincentive
to
the
construction
of
new
facilities
and
encourage
modification
and
life
extension
of
existing
(
and
generally
more
polluting)
facilities;
(
2)
dry
cooling
had
not
been
demonstrated
to
be
technically
feasible
for
many
manufacturers
and
large
power
plants,
and
new
facilities
subject
to
such
a
requirement
would
be
at
a
competitive
disadvantage
to
the
facilities
not
subject
to
the
requirement;
(
3)
dry
cooling
technology
caused
unacceptable
non­
water
quality
adverse
environmental
impacts,
such
as
increased
energy
consumption
and
air
emissions;
and
(
4)
the
higher
cost
of
the
technology
was
not
justified
by
the
incremental
further
reduction
in
impingement
and
entrainment
as
compared
to
the
wet
cooling
technology.

66
Fed.
Reg.
at
65,282­
84
(
JA
XX­
XX).
­
20
­
STANDARD
OF
REVIEW
Judicial
review
under
33
U.
S.
C.
§
1369(
b)(
1)
is
governed
by
the
standards
set
forth
in
the
Administrative
Procedure
Act
("
APA"),
5
U.
S.
C.
§
§
551­
559,
701­
706,

which
establishes
a
highly
deferential
standard
of
review
for
agency
action.
Such
action
is
valid
unless
it
is
"
arbitrary,
capricious,
an
abuse
of
discretion,
or
otherwise
not
in
accordance
with
law."
5
U.
S.
C.
§
706(
2)(
A).

"
Review
under
this
provision
is
`
narrow,'
limited
to
examining
the
administrative
record
to
determine
`
whether
the
[
agency]
decision
was
based
on
a
consideration
of
the
relevant
factors
and
whether
there
has
been
a
clear
error
of
judgment.'"
Natural
Res.
Def.
Council
v.
Muszynski,
268
F.
3d
91,
97
(
2d
Cir.

2001)
("
NRDC")
(
quoting
City
of
New
York
v.
Shalala,
34
F.
3d
1161,
1167
(
2d
Cir.
1994)).
The
Court
"
may
not
substitute
its
judgment
for
that
of
the
agency[.]"

Muszynski,
268
F.
3d
at
97.
Rather,
the
Court
should
affirm
EPA's
decision
unless
the
decision
was
based
on
`
factors
which
Congress
has
not
intended
[
EPA]
to
consider,
entirely
failed
to
consider
an
important
aspect
of
the
problem,
offered
an
explanation
for
its
decision
that
runs
counter
to
the
evidence
before
the
agency,
or
is
so
implausible
that
it
could
not
be
ascribed
to
a
difference
in
view
or
the
product
of
agency
expertise.'

NRDC,
268
F.
3d
at
97
(
quoting
City
of
New
York,
34
F.
3d
at
1167).
In
short,
this
standard
of
review
presumes
the
validity
of
agency
action,
Ethyl
Corp.
v.
EPA,
541
­
21
­
F.
2d
1,
34
(
D.
C.
Cir.
1976)
(
en
banc),
and
if
the
agency's
reasons
and
policy
choices
conform
to
"
certain
minimal
standards
of
rationality,"
the
action
is
reasonable
and
must
be
upheld.
Small
Refiner
Lead
Phase­
Down
Task
Force
v.
EPA,
705
F.
2d
506,
521
(
D.
C.
Cir.
1983).

With
regard
to
questions
of
statutory
interpretation,
the
Court
must
first
consider
whether
Congress
has
directly
addressed
the
question
at
issue.
If
so,
"
that
is
the
end
of
the
matter;
for
the
court,
as
well
as
the
agency,
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress."
Chevron
U.
S.
A.,
Inc.
v.
NRDC,
467
U.
S.
837,
842­
43
(
1984).
However,
if
the
statute
is
silent
or
ambiguous
on
an
issue,

the
Court
must
accept
the
agency's
interpretation
if
it
is
reasonable;
the
agency's
interpretation
need
not
represent
the
only
permissible
reading
of
the
statute
nor
the
reading
that
the
Court
might
originally
have
given
the
statute.
Id.
at
843
&
n.
11;

Sutherland
v.
Reno,
228
F.
3d
171,
173
(
2d
Cir.
2000)
("
When
reviewing
an
agency
determination,
federal
courts
must
accord
substantial
deference
to
an
agency's
interpretation
of
the
statutes
it
is
charged
with
administering.")

Further,
the
Court
should
give
"
controlling
weight"
to
EPA's
interpretations
of
its
own
regulations,
unless
an
interpretation
"
is
plainly
erroneous
or
inconsistent
with
the
regulation."
Stinson
v.
United
States,
508
U.
S.
36,
45
(
1993)
(
citations
omitted);
United
States
v.
Larionoff,
431
U.
S.
864,
872
(
1977).
­
22
­
When
the
agency's
decision
rests
on
an
evaluation
of
complex
scientific
data
within
the
agency's
technical
expertise,
as
it
does
in
this
case,
courts
are
"
extremely
deferential."
New
York
v.
Reilly,
969
F.
2d
1147,
1152
(
D.
C.
Cir.
1992).
Where
the
agency
decision
turns
on
issues
requiring
the
exercise
of
technical
or
scientific
judgment,
the
court
"
must
look
at
the
decision
not
as
the
chemist,
biologist,
or
statistician
that
[
it
is]
qualified
neither
by
training
nor
experience
to
be,
but
as
a
reviewing
court
exercising
[
its]
narrowly
defined
duty
of
holding
agencies
to
certain
minimal
standards
of
rationality."
Ethyl
Corp.,
541
F.
2d
at
36.
See
Baltimore
Gas
&
Elec.
Co.
v.
NRDC,
462
U.
S.
87,
103
(
1983)
(
when
reviewing
an
agency's
scientific
conclusions
within
its
area
of
special
expertise,
"
a
reviewing
court
must
generally
be
at
its
most
deferential.");
Hüls
Am.,
Inc.
v.
Browner,
83
F.
3d
445,
452
(
D.
C.
Cir.
1996)
(
court
should
"
give
an
extreme
degree
of
deference
to
the
agency
when
it
`
is
evaluating
scientific
data
within
its
technical
expertise'");
Chem.
Mfrs.

Ass'n
v.
EPA,
919
F.
2d
158,
167
(
D.
C.
Cir.
1990)
("
It
is
not
the
role
of
courts
to
`
second­
guess
the
scientific
judgments
of
the
EPA,'
and
[
courts]
give
considerable
latitude
to
the
EPA
in
drawing
conclusions
from
scientific
and
technological
research'").

SUMMARY
OF
ARGUMENT
A.
Summary
of
Argument
on
Environmental
Petitioners'
and
Amicus's
Issues
­
23
­
For
Track
I
of
the
Rule,
EPA
adopted
performance
requirements
based,
in
part,
on
closed­
cycle
recirculating
wet
cooling,
which
it
determined
was
the
best
technology
available.
EPA
properly
rejected
dry
cooling
as
the
basis
for
the
technology­
based
standard
because
EPA
concluded
that:
(
1)
dry
cooling
was
not
economically
available
to
all
facilities
that
would
be
subject
to
the
Rule,
because
the
high
costs
of
dry
cooling
would
create
a
barrier
to
entry
for
some
facilities,
and
would
be
a
disincentive
to
others,
thereby
encouraging
the
continued
repair
of
older
and
more
polluting
existing
facilities;
(
2)
dry
cooling
has
unacceptable
non­
water
quality
environmental
impacts
because
it
consumes
more
energy
than
wet
cooling
and
thus
increases
energy
consumption
and
results
in
increased
air
emissions;
(
3)

dry
cooling
has
not
been
demonstrated
as
feasible
for
many
manufacturers
and
for
large
power
producers,
and
dry
cooling
is
inefficient
in
warm
climates,
thus
creating
a
competitive
disadvantage
for
some
facilities;
and
(
4)
the
modest
incremental
reductions
in
impingement
and
entrainment
(
dry
cooling
is
approximately
4%­
7%

more
effective
than
wet
cooling)
do
not
justify
the
900%
increase
in
costs.
EPA's
rejection
of
dry
cooling
and
selection
of
closed­
cycle
recirculating
wet
cooling
as
the
best
technology
available
is
reasonable,
well
supported
by
the
administrative
record,
consistent
with
the
goals
and
purposes
of
the
statute,
and
is
entitled
to
deference.
66
Fed.
Reg.
at
65,282/
3­
83/
1
(
JA
XX­
XX).
­
24
­
For
Track
II
of
the
Rule,
EPA
provided
that
a
facility
can
employ
any
technology
or
group
of
technologies
that
will
reduce
impingement
and
entrainment
to
a
level
comparable
to
what
would
be
achieved
through
compliance
with
the
Track
I
performance
requirements.
The
Track
II
option
is
not
less
stringent
than
Track
I;
rather,
the
"
comparable"
requirement
simply
reflects
the
variability
inherent
in
measurement
of
the
reduction
of
impingement
and
entrainment.
EPA's
expertise
on
such
technical
matters
is
entitled
to
substantial
deference.
Moreover,

EPA
reasonably
interprets
the
statute
as
authorizing
the
use
of
restoration
measures
to
replace
organisms
that
are
impinged
or
entrained.
This
interpretation
is
consistent
with
the
goals
and
objectives
of
the
statute
and
it,
too,
is
entitled
to
deference.

Because
the
Rule
applies
to
so
many
different
types
of
facilities,
EPA
reasonably
allowed
permitting
authorities
the
flexibility
to
impose
alternative
requirements
when
the
actual
costs
of
compliance
with
the
best
technology
available
at
a
particular
facility
are
wholly
disproportionate
to
the
costs
EPA
considered
during
the
rulemaking
process,
or
if
compliance
with
the
best
technology
available
would
result
in
significant
environmental
impacts
not
considered
by
EPA.
EPA
reasonably
concluded
that
these
are
site­
specific
issues,

often
of
local
concern,
that
can
be
best
addressed
during
the
permitting
process.
­
25
­
EPA's
interpretations
are
consistent
with
the
goals
and
objectives
of
the
statute
and
its
factual
conclusions
are
reasonable
and
well
supported
by
the
administrative
record.
Accordingly,
EPA's
interpretations
and
conclusions
are
entitled
to
substantial
deference
and
should
be
upheld
in
all
respects.

B.
Summary
of
Argument
on
UWAG's
Issues
EPA's
Track
I
requirements
reasonably
implement
CWA
§
316(
b)
by
focusing
on
reducing
the
impingement
and
entrainment
of
aquatic
organisms
caused
by
cooling
water
intake
structures.
EPA
permissibly
reads
the
phrase
"
adverse
environmental
impact"
in
CWA
§
316(
b)
to
be
broad
enough
to
include
the
killing
and
harming
of
large
numbers
of
fish
and
other
aquatic
organisms,
not
only
killing
that
has
demonstrated
long
term
impacts
on
the
species'
population
or
the
ecosytem,

as
UWAG
contends,
and
EPA's
interpretation
is
entitled
to
deference.
Further,

EPA
actually
considered
the
various
non­
water
quality
environmental
concerns
that
UWAG
claims
the
Agency
ignored
during
the
rulemaking,
and
concluded
that
they
were
not
significant.
Finally,
UWAG's
other
arguments
concerning
the
adequacy
of
the
alternative
requirements
and
the
lack
of
a
cost/
benefit
analysis
fail
to
demonstrate
any
error
on
EPA's
part.

EPA
also
reasonably
included
additional
design
and
construction
requirements
in
40
C.
F.
R.
§
125.84(
b)(
4)
and
(
5)
to
further
minimize
impingement
and
entrainment
in
certain
circumstances.
EPA's
decision
to
have
these
additional
­
26
­
requirements
applied
by
the
permitting
authority
on
a
site­
specific
basis
was
reasonable.
In
sum,
UWAG
has
not
demonstrated
that
the
additional
design
and
construction
requirements
are
unreasonable
or
beyond
EPA's
authority.

EPA
further
reasonably
chose
to
set
an
intake
velocity
limit
based
on
"
through­
screen
velocity"
and
to
set
the
limit
at
0.5
feet
per
second.
EPA's
proportional
flow
limits
are
supported
by
the
record
and
were
within
the
scope
of
EPA's
reasonable
scientific
and
technical
judgment.
Finally,
the
provision
related
to
state
law
requirements
in
40
C.
F.
R.
§
125.84(
e)
is
authorized
by
the
CWA.

UWAG's
argument
that
this
provision
is
not
authorized
by
CWA
§
316(
b)
is
offpoint
EPA
based
this
provision
on
the
statutory
provisions
in
CWA
§
§
401(
d)
and
510,
33
U.
S.
C.
§
§
1341(
d)
and
1370.

C.
Summary
of
Argument
on
MISC's
Issues
MISC
challenges
three
provisions
that
concern:
(
1)
"
case
by
case"

requirements
imposed
on
smaller
intake
structures;
(
2)
the
requirement
that
permitting
agencies
review
permits
at
the
time
of
reissuance;
and
(
3)
the
requirement
that
facilities
comply
with
state
law
requirements.
Contrary
to
MISC's
arguments,
and
as
discussed
further
below,
these
challenged
provisions
are
within
EPA's
authority
under
the
statute,
were
adopted
with
adequate
notice
and
comment
proceedings,
and
are
consistent
with
prior
regulations.
­
27
­
ARGUMENT
I.
ENVIRONMENTAL
PETITIONERS'
PETITIONS
SHOULD
BE
DENIED.

The
Environmental
Petitioners
challenge
all
three
compliance
options
of
the
Rule.
In
Argument
I.
A.
below
we
address
challenges
to
Track
I,
and
demonstrate
that
EPA
reasonably
adopted
performance
requirements
for
best
technology
available
based
on
closed­
cycle
recirculating
wet
cooling,
rather
than
dry
cooling.

In
Argument
I.
B.
below
we
address
challenges
to
Track
II,
and
demonstrate
that
EPA
reasonably
provided
for
the
use
of
different
technologies,
as
long
as
the
technologies
employed
will
achieve
a
reduction
in
impingement
and
entrainment
comparable
to
that
which
would
be
achieved
through
Track
I
requirements.
In
Argument
I.
C.
below,
we
address
challenges
to
the
alternative
requirements
provision,
and
demonstrate
that
it
is
authorized
by
the
CWA
and
is
a
reasonable
exercise
of
EPA's
discretion.

A.
Best
Technology
Available
Does
Not
Require
Dry
Cooling.

The
Environmental
Petitioners
and
Amici
challenge
EPA's
decision
to
base
the
best
technology
available
on
closed­
cycle
recirculating
wet
cooling
technology
on
two
grounds.
First,
they
argue
that
EPA
is
not
authorized
to
consider
costs
and
energy
impacts
in
determining
best
technology
available.
However,
as
demonstrated
in
Part
1
of
this
Argument,
EPA
reasonably
interprets
CWA
§
316(
b)
­
28
­
to
permit
consideration
of
costs
and
energy
impacts
in
determining
the
best
technology
available.
Second,
they
argue
that,
even
if
consideration
of
those
factors
is
permissible,
EPA
abused
its
discretion
by
rejecting
dry
cooling
as
the
best
technology
available.
However,
as
demonstrated
in
Part
2
of
this
Argument,
EPA
reasonably
concluded,
after
consideration
of
the
relevant
factors,
that
closed­
cycle
recirculating
wet
cooling
constituted
the
best
technology
available
to
minimize
adverse
environmental
impact.

1.
EPA
Reasonably
Interpreted
The
Statute
To
Authorize
Consideration
Of
Costs
And
Energy
Impacts
In
Determining
The
Best
Technology
Available.

The
Environmental
Petitioners
challenge
EPA's
decision
to
reject
dry
cooling
as
the
best
technology
available
on
grounds
that
CWA
§
316(
b)
does
not
authorize
EPA
to
consider
the
costs
and
energy
impacts
of
dry
cooling
as
a
factor
in
its
decision.
EPA
interprets
§
316(
b)
consistently
with
its
interpretation
of
other
technology­
based
provisions
in
the
Clean
Water
Act,
all
of
which
not
only
permit,

but
require,
that
costs
and
non­
water
quality
environmental
impacts
be
considered
in
establishing
the
technology­
based
standard.

a.
EPA's
interpretation
is
consistent
with
other
technology­
based
standards
in
the
CWA.

CWA
§
316(
b)
requires
that
the
"
best
technology
available
for
minimizing
adverse
environmental
impact"
of
cooling
water
intake
structures
must
be
included
­
29
­
in
"
any
standard
established
pursuant
to
section
1311
of
this
title
[
CWA
§
301]
or
section
1316
of
this
title
[
CWA
§
306]."
33
U.
S.
C.
§
1326(
b).
Those
sections
establish
the
statutory
authority
for
EPA
to
promulgate
technology­
based
standards
for
effluent
discharges
from
new
sources
(
CWA
§
306)
and
existing
sources
(
CWA
§
301).
EPA
adopted
an
approach
to
considering
costs
and
other
environmental
impacts
that
is
analogous
to
the
way
those
factors
are
considered
in
establishing
standards
under
CWA
§
§
301
and
306.
CR
206.014
at
1898
(
JA
XX);
CR
068.007
at
1183
(
JA
XX).

CWA
§
306(
b)(
1)(
B),
which
governs
the
effluent
discharge
standards
for
new
sources,
expressly
states
that
in
establishing
the
"
best
available
demonstrated
control
technology"
the
Administrator
shall
take
into
consideration
"
the
cost
of
achieving
such
effluent
reduction,
and
any
non­
water
quality
environmental
impact
and
energy
requirements."
33
U.
S.
C.
§
1316(
b)(
1)(
B).
The
cost
consideration
is
mandatory
in
establishing
the
technology­
based
standards
for
new
sources
under
CWA
§
306.
"[
T]
he
Administrator
must
inquire
into
the
initial
and
annual
costs
of
applying
the
technology
and
make
an
affirmative
determination
that
those
costs
can
reasonably
be
borne
by
industry."
National
Wildlife
Fed'n
v.
EPA,
286
F.
3d
554,

570
(
D.
C.
Cir.
2002)
citing
Chem.
Mfrs.
Ass'n
v.
EPA,
870
F.
2d
177,
262
(
5th
Cir.

1989);
CPC
Int'l
v.
Train,
540
F.
2d
1329,
1341
(
8th
Cir.
1976).
18/
CWA
§
301(
b)(
2)(
E)
provides
a
separate
standard
for
conventional
pollutants,
"
best
conventional
pollutant
control
technology,"
which
also
requires
consideration
of
costs.
33
U.
S.
C.
§
1314(
b)(
4)(
B).
EPA
established
a
two­
part
test
to
implement
this
requirement.
51
Fed.
Reg.
24,974
(
July
9,
1986).

­
30
­
CWA
§
316(
b)
also
cross
references
CWA
§
301(
b),
which
provides
two
stages
for
regulation
of
effluent
discharge
from
existing
facilities.
E.
I.
duPont
de
Nemours
&
Co.
v.
Train,
430
U.
S.
112,
121
(
1977).
The
first
level
of
control,
set
forth
in
CWA
§
301(
b)(
1)(
A),
requires
application
of
the
"
best
practicable
control
technology
currently
available,"
which
in
turn
requires
"
consideration
of
the
total
cost
of
application
of
technology
in
relation
to
the
effluent
reduction
benefits
to
be
achieved
from
such
application"
and
must
also
take
into
account
"
non­
water
quality
environmental
impact
(
including
energy
requirements)."
33
U.
S.
C.
§
1314(
b)(
1)(
B).
The
second
level
of
control,
set
forth
in
CWA
§
301(
b)(
2)(
A),

requires
application
of
the
"
best
available
technology
economically
achievable,"

which
in
turn
requires
consideration
of
"
the
cost
of
achieving
such
effluent
reduction,
[
and]
non­
water
quality
environmental
impact
(
including
energy
requirements)."
33
U.
S.
C.
§
1314(
b)(
2)(
B).
See
also
33
U.
S.
C.
§
1314(
b)(
3)

(
control
measures
must
take
into
account
"
the
cost
of
achieving
such
elimination
of
the
discharge
of
pollutants").
18/
Although
the
standards
are
somewhat
different,

each
requires
that
EPA
consider
the
cost
of
the
technology
and
the
other
environmental
impacts
when
selecting
the
standard.
See,
e.
g.,
Chemical
Mfrs.
19/
The
Environmental
Petitioners
concede
that
CWA
§
316(
b)
requires
technology­
based
standards
similar
to
those
established
for
effluent
discharges
under
CWA
§
§
301
and
306.
See
Env.
Pet.
Br.
at
18
(
EPA
"
must
adhere
to
the
same
basic
rules
as
the
effluent
limitations
EPA
established
under
Section
[
sic]
301
and
306.").
Environmental
Petitioners
nevertheless
argue
that
EPA
cannot
consider
the
cost
and
energy
impacts
in
the
CWA
§
316(
b)
regulation
which
it
is
required
to
consider
in
regulation
of
effluent
discharges
under
CWA
§
§
301
and
306.
EPA's
interpretation,
on
the
other
hand,
consistently
interprets
all
of
the
technology­
based
standards
in
these
sections.

­
31
­
Ass'n
v.
EPA,
870
F.
2d
at
237­
38;
BASF
Wyandotte
Corp.
v.
Costle,
598
F.
2d
637,

662
(
1st
Cir.
1979);
American
Iron
&
Steel
Inst.
v.
EPA,
526
F.
2d
1027,
1051
(
3d
Cir.
1975).

Because
CWA
§
§
301
and
306
are
expressly
cross­
referenced
in
CWA
§
316(
b),
EPA
reasonably
interprets
CWA
§
316(
b)
as
authorizing
consideration
of
the
same
factors
considered
under
CWA
§
§
301
and
306,
including
cost
and
nonwater
quality
environmental
impacts.
19/
Courts
have
twice
concluded
that
the
cross
reference
in
CWA
§
316(
b)
to
CWA
§
§
301
and
306
implicitly
incorporates
the
provisions
of
those
sections.
In
Virginia
Elec.
&
Power
Co.
v.
Costle,
566
F.
2d
446,
449
(
4th
Cir.
1977),
the
court
held
that
the
issuance
of
a
regulation
under
CWA
§
316(
b)
was
an
"
other
limitation"
under
CWA
§
§
301
and
306.
In
Cronin
v.

Browner,
898
F.
Supp.
1052,
1059
(
S.
D.
N.
Y.
1995),
the
Court
held
that
the
express
statutory
deadlines
for
promulgating
regulations
under
CWA
§
§
301
and
306
apply
20/
The
court
in
Cronin
distinguished
this
Court's
decision
in
EDF
v.
Thomas,
870
F.
2d
892
(
2d
Cir.
1989),
which
rejected
a
similar
argument
because
the
statutory
section
at
issue
did
not
expressly
cross­
reference
the
statutory
section
which
contained
the
deadline
for
promulgation
of
regulations.
As
the
court
in
Cronin
aptly
noted,
the
EDF
decision
strongly
suggests
that
an
express
crossreference
(
such
as
in
§
316(
b))
would
compel
application
of
the
deadline.
Cronin,
898
F.
Supp.
at
1059­
60.

­
32
­
also
to
regulations
promulgated
under
CWA
§
316(
b),
notwithstanding
the
absence
of
a
deadline
in
CWA
§
316(
b).
20/

Even
if
the
direct
statutory
cross
reference
in
CWA
§
316(
b)
to
CWA
§
§
301
and
306
did
not
incorporate
the
standards
of
those
sections,
it
would
nonetheless
be
reasonable
for
EPA
to
interpret
the
CWA
§
316(
b)
standard
of
"
best
technology
available"
consistently
with
the
similar
standards
of
"
best
available
demonstrated
control
technology"
in
CWA
§
306(
b)(
1)(
B),
"
best
available
technology
economically
achievable"
in
CWA
§
301(
b)(
2)(
A),
and
"
best
practicable
control
technology"
in
CWA
§
301(
b)(
1)(
A).
If
Congress
had
intended
the
standards
for
cooling
water
intake
structures
to
depart
so
significantly
from
the
standards
governing
effluent
discharges,
Congress
would
not
have
used
virtually
the
same
language
to
describe
the
standard.
C.
I.
R.
v.
Lundy,
516
U.
S.
235
250
(
1996)
(
It
is
a
normal
rule
of
statutory
construction
that
identical
words
used
in
different
parts
of
21/
Again,
Environmental
Petitioners
concede
that
"
Congress's
use
of
`
best
technology'
language
in
CWA
§
316(
b)
underscores
its
intent
to
incorporate
cooling
water
withdrawal
limitations
into
the
technology­
based
framework
of
the
Act",
and
acknowledge
that
`
best
technology
available'
(
BTA)
.
.
.
is
textually
similar
to
the
`
best
available
technology'
(
BAT)
standard
of
CWA
§
301(
b)(
2)(
A)
and
the
`
best
available
demonstrated
control
technology'
standard
of
CWA
§
306(
a)(
1).
Env.
Pet.
Br.
at
25.
Yet,
again,
they
inconsistently
argue
that
EPA
must
ignore
the
cost
and
energy
considerations
that
are
clearly
incorporated
into
those
technology­
based
standards.

­
33
­
the
same
act
are
intended
to
have
the
same
meaning.)
21/
CR
206.014
at
1888­
89
(
JA
XX).

b.
EPA's
interpretation
is
supported
by
the
legislative
history
of
§
316(
b)
and
by
judicial
precedent.

EPA's
interpretation
is
also
supported
by
the
legislative
history
of
CWA
§
316(
b):
"`
best
technology
available'
should
be
interpreted
as
best
technology
available
at
an
economically
practicable
cost."
See
118
Cong.
Rec.
33,762
(
1972),

reprinted
in
1
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
93d
Cong.,
1st
Sess.
at
264
(
Comm.
Print
1973)
(
Statement
of
Representative
Don
H.
Clausen).
CR
068.007
at
1183
(
JA
XX).

Moreover,
EPA's
interpretation
of
CWA
§
316(
b)
is
consistent
with
judicial
interpretations
of
the
section.
See,
e.
g.,
Seacoast
Anti­
Pollution
League
v.
Costle,

597
F.
2d
306,
311
(
1st
Cir.
1979)
("
The
legislative
history
clearly
makes
cost
an
acceptable
consideration
in
determining
whether
the
intake
design
`
reflect[
s]
the
best
technology
available'");
United
States
Steel
Corp.
v.
Train,
556
F.
2d
822,
850
­
34
­
(
7th
Cir.
1977)
("
we
trust
that
EPA
will
conduct
a
limited
cost­
benefit
analysis
once
the
information
on
which
an
evaluation
of
the
various
technologies
can
be
made
becomes
available");
Hudson
Riverkeeper
Fund,
Inc.
v.
Orange
&
Rockland
Util.,

Inc.
835
F.
Supp.
160,
165­
66
(
S.
D.
N.
Y.
1993).
CR
206.014
at
1889
(
JA
XX).

The
only
authority
identified
by
Environmental
Petitioners
to
support
their
restrictive
interpretation
of
the
statute
is
inapposite.
They
rely
on
Whitman
v.

American
Trucking
Associations,
531
U.
S.
457,
465
(
2001),
and
Lead
Industries
Association
v.
EPA,
647
F.
2d
1130,
1148
(
D.
C.
Cir.
1980).
Aside
from
the
obvious
fact
that
both
of
those
cases
arose
under
the
Clean
Air
Act,
rather
than
the
Clean
Water
Act,
the
cases
do
not
even
involve
technology­
based
standards.
Both
interpreted
health­
based
ambient
air
quality
standards,
which
are
more
analogous
to
the
human
health­
based
or
environmentally­
based
water
quality
standards
under
the
Clean
Water
Act.
Both
of
those
cases
involved
interpretation
of
health­
based
criteria
which
must
adequately
protect
human
health
or
the
environment
without
regard
to
cost
considerations.
Mississippi
Comm'n
on
Natural
Resources
v.

Costle,
625
F.
2d
1269,
1277
(
5th
Cir.
1989)
(
Under
the
CWA,
while
economics
are
considered
in
designating
uses
for
a
waterbody,
economic
factors
are
irrelevant
in
setting
criteria
to
meet
those
uses).
By
way
of
contrast,
every
technology­
based
standard
under
the
Clean
Water
Act
incorporated
in
NPDES
permits
requires
that
EPA
consider
the
costs
of
compliance
and
non­
water
quality
environmental
­
35
­
impacts,
including
energy.
Environmental
Petitioners
have
cited
no
relevant
authority
to
support
their
overly
strict
and
narrow
reading
of
the
statute,
and
it
should
be
rejected.

c.
EPA's
interpretation
is
entitled
to
deference.

EPA's
interpretation
that
CWA
§
316(
b)
authorizes
EPA
to
consider
the
same
factors
it
considers
in
regulating
effluent
discharges
under
CWA
§
306
establishing
"
best
available
demonstrated
control
technology"
or
under
CWA
§
301
establishing
"
best
available
control
technology"
is
reasonable,
based
on
the
similarity
in
the
standards
and
the
statutory
cross­
reference
to
those
provisions.
Because
EPA's
interpretation
is
"
reasonable
in
light
of
the
goals
and
purposes
of
the
statute,"
the
Court
must
defer
to
EPA's
interpretation.
Chevron,
U.
S.
A.
v.
NRDC,
467
U.
S.
at
844;
Sutherland
v.
Reno,
228
F.
3d
at
173
("
When
reviewing
an
agency
determination,
federal
courts
must
accord
substantial
deference
to
an
agency's
interpretation
of
the
statutes
it
is
charged
with
administering").
See
also
Texas
Oil
&
Gas
Ass'n
v.
EPA,
161
F.
3d
923,
938
(
5th
Cir.
1998)
(
citing
American
Forest
&

Paper
Ass'n
v.
EPA,
137
F.
3d
291,
297
(
5th
Cir.
1998)
(
applying
the
Chevron
test
to
EPA's
interpretation
of
the
CWA)).

2.
EPA
Properly
Rejected
Dry
Cooling
as
the
Best
Technology
Available
Based
on
Consideration
of
Relevant
Factors.
­
36
­
Environmental
Petitioners
next
complain
that
even
if
EPA
is
authorized
to
consider
compliance
costs
and
non­
water
quality
environmental
impacts,
its
rejection
of
dry
cooling
as
the
best
technology
available
was
nonetheless
an
abuse
of
discretion.
EPA,
however,
considered
all
relevant
factors,
including:
(
a)
the
high
costs
of
dry
cooling;
(
b)
non­
water
quality
environmental
impacts
of
dry
cooling,

including
increased
energy
consumption;
(
c)
technical
feasibility
of
dry
cooling;

and
(
d)
effectiveness
of
wet
cooling
in
minimizing
impingement
and
entrainment,

and
concluded
that
closed­
cycle
recirculating
wet
cooling
is
the
best
technology
available.
EPA's
weighing
of
the
factors
is
entitled
to
a
high
degree
of
deference,

and
should
be
upheld.

a.
The
high
costs
of
dry
cooling
would
create
a
barrier
to
entry
for
some
facilities.

EPA
concluded
that
dry
cooling
technology
is
not
economically
available
to
all
of
the
projected
facilities
subject
to
the
rule
because
the
high
costs
of
dry
cooling
may
be
a
barrier
to
entry.
66
Fed.
Reg.
at
65,282/
3­
83/
2
(
JA
XX­
XX);
CR
206.014
at
1890
(
JA
XX).
EPA's
economic
analysis
demonstrates
that
the
annualized
cost
of
dry
cooling
is
ten
times
more
than
the
cost
of
wet
cooling.
66
Fed.
Reg.
at
65,282/
3­
83/
1
(
JA
XX­
XX).
For
some
of
the
projected
facilities,
the
requirement
of
dry
cooling
would
result
in
annualized
compliance
costs
in
excess
of
10%
of
revenues.
For
virtually
all
of
the
projected
facilities
subject
to
the
rule,
the
22/
For
example,
a
dry
cooling
installation
at
a
new
electrical
generating
facility
would
approach
7%
of
construction
costs,
versus
approximately
2%
of
construction
costs
for
wet
cooling.
CR
206.014
at
1891
(
JA
XX).

­
37
­
requirement
of
dry
cooling
would
result
in
annualized
compliance
costs
of
at
least
4%
of
revenues.
66
Fed.
Reg.
at
65,282/
3
(
JA
XX).
Original
capital
investment
costs
of
dry
cooling
technology
are
also
significantly
greater
than
those
of
wet
cooling
towers.
22/
EPA
determined
these
costs
to
be
excessive,
and
was
concerned
that
the
high
costs
of
dry
cooling
would
create
an
economic
barrier
to
entry.

EPA
also
determined
that
the
high
cost
of
dry
cooling
is
unacceptable
because
it
would
create
a
disincentive
to
construction
of
new
facilities
and
encourage
the
continued
repair
of
older
existing
facilities,
which
typically
have
greater
adverse
environmental
impact.
66
Fed.
Reg.
at
65,283/
1
(
JA
XX);

CR
006.014
at
1893
(
JA
XX).
Further,
because
of
the
higher
operational
costs,
new
facilities
employing
dry
cooling
technology
would
be
at
a
distinct
competitive
disadvantage
to
existing
sources
in
the
industry
not
subject
to
the
requirement.

66
Fed.
Reg.
at
65,283/
1
(
JA
XX).

Environmental
Petitioners
question
EPA's
concern
that
the
high
costs
of
dry
cooling
will
pose
a
barrier
to
entry
for
some
facilities,
relying
on
EPA
v.
National
Crushed
Stone,
449
U.
S.
64
(
1980),
in
which
the
Supreme
Court
acknowledged
that
costs
of
compliance
with
the
technology­
based
standard
may
force
some
marginal
23/
See
A
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
93d
Cong.
1st
Sess.
at
172
(
Comm.
Print
1973):
"
The
Conferees
would
expect
that
this
cost
test
would
be
considerably
more
restrictive
than
the
test
which
(
continued...)

­
38
­
plants
to
close.
However,
the
Environmental
Petitioners
have
taken
the
Supreme
Court's
statement
out
of
context.
The
petitioners
in
that
case
challenged
a
variance
provision
on
grounds
that
it
did
not
allow
a
facility
to
obtain
a
variance
from
the
"
best
practicable
control
technology"
standard
based
on
its
economic
inability
to
comply
with
the
standard.
The
Supreme
Court
explained
that
the
[
EPA]
is
directed
to
consider
the
benefits
of
effluent
reductions
as
compared
to
the
costs
of
pollution
control
in
determining
BPT
limitations.
Thus,
every
BPT
limitation
represents
a
conclusion
by
[
EPA]
that
the
costs
imposed
on
the
industry
are
worth
the
benefits
in
pollution
reduction
that
will
be
gained
by
meeting
those
limits.

Id.
at
76­
77.
The
Supreme
Court
thus
approved
EPA's
consideration
of
costs
imposed
on
the
industry
when
it
established
the
technology­
based
standard,
just
as
EPA
did
in
this
case.

Environmental
Petitioners
further
argue
that
EPA
should
not
consider
potential
barriers
to
entry
because
the
costs
of
compliance
should
be
of
less
concern
in
regulating
new
sources
than
it
is
with
respect
to
existing
sources.
EPA
agrees
that
more
stringent
standards
may
be
more
appropriate
for
new
sources
than
for
existing
sources,
because
new
sources
have
more
design
flexibility
than
existing
sources.
23/
However,
the
ability
of
new
sources
to
meet
more
restrictive
23/(...
continued)
would
be
applied
to
`
best
available
technology'
because
pollution
control
alternatives
are
available
to
a
new
source
which
are
not
available
to
existing
sources."

24/
For
estimates
and
comparisons
of
the
energy
consumption
between
dry
cooling
technology
and
wet
cooling
technology,
see
66
Fed.
Reg.
at
65,268/
3
(
JA
XX)
and
TDD
at
Chap.
3
(
JA
XX).

­
39
­
requirements
does
not
mean
that
cost
is
of
no
concern.
It
is
clear
that
cost
is
an
appropriate
consideration
in
setting
new
source
performance
standards
under
CWA
§
306
and,
by
extension,
CWA
§
316(
b).
National
Wildlife
Fed'n
v.
EPA,
286
F.
3d
at
570
(
EPA's
rejection
of
a
more
stringent,
but
more
costly,
option
for
new
sources
not
arbitrary
and
capricious);
BP
Exploration
&
Oil
Inc.,
66
F.
3d
at
796,
800
(
same).
In
this
rulemaking,
EPA
reasonably
determined
that
the
costs
of
dry
cooling
could
not
be
borne
by
the
industry
as
a
whole,
and
EPA's
determination
is
entitled
to
deference.

b.
Dry
cooling
results
in
unacceptable
energy
consumption
and
increased
air
emissions.

EPA
concluded
that
dry
cooling
technology
would
lead
to
significantly
greater
energy
consumption
than
the
use
of
wet
cooling,
because
dry
cooling
technology
requires
more
energy
than
wet
cooling
to
produce
the
same
amount
of
power
(
referred
to
as
an
"
energy
penalty").
24/
66
Fed.
Reg.
at
65,283/
2­
84/
1
(
JA
XX­
XX).
EPA
calculated
that
a
national
standard
based
on
dry
cooling
would
25/
For
detailed
estimates
of
air
emission
increases
associated
with
the
increased
energy
consumption
of
dry
cooling
technology,
see
66
Fed.
Reg.
at
65,269/
2­
3
(
JA
XX);
TDD
at
Chap.
3
(
JA
XX).

­
40
­
reduce
the
nation's
future
energy
production
capacity
by
1900
MW
­
­
the
equivalent
of
three
large
coal­
fired
power
plants.
CR
206.014
at
1892
(
JA
XX).

Moreover,
the
additional
energy
consumed
by
dry
cooling
technology
would
require
the
production
of
replacement
energy,
which
in
turn
results
in
greater
air
emissions.
25/
EPA
determined
that
these
non­
water
quality
environmental
impacts
associated
with
dry
cooling
technology
were
unacceptable.

Environmental
Petitioners
criticize
EPA's
consideration
of
increased
energy
consumption
and
increased
air
emissions,
characterizing
both
as
"
so
extremely
minor
as
to
be
diminimus
[
sic]."
Env.
Pet.
Br.
at
48.
However,
the
Environmental
Petitioners'
reference
to
the
nationwide
increase
in
energy
consumption
resulting
from
dry
cooling
as
.5%
lacks
any
meaningful
context.
The
comparative
increase
in
energy
consumption
for
wet
cooling
is
.026%
­­
more
than
an
order
of
magnitude
less
than
the
dry
cooling
alternative.
CR
206.012
at
1879­
80
(
JA
XXXX
EPA
determined
that
the
modest
decrease
in
entrainment
that
could
be
realized
through
the
use
of
dry
cooling
technology
did
not
justify
the
increase
in
energy
consumption
and
air
emissions.
­
41
­
A
similar
balancing
of
two
environmental
harms
was
upheld
by
the
court
in
BP
Exploration
and
Oil
Inc.,
66
F.
3d
784,
considering
a
rule
in
which
EPA
rejected
a
zero
discharge
standard
due
to
air
emissions
that
would
result
from
such
a
requirement.
The
court
stated:
"
If
any
entity
has
the
ability
to
weigh
the
relative
impacts
of
two
different
environmental
harms,
it
is
the
EPA."
Id.
at
802.
In
this
rulemaking,
EPA
reasonably
concluded
that
the
increased
energy
consumption
and
related
emissions
associated
with
dry
cooling
are
not
acceptable,
and
EPA's
determination
is
entitled
to
deference.

c.
Dry
cooling
technology
is
not
feasible
for
all
facilities
subject
to
the
Rule.

EPA
concluded
that
dry
cooling
is
not
technically
feasible
at
many
facilities
that
will
be
subject
to
the
Rule.
66
Fed.
Reg.
at
65,284/
1­
2
(
JA
XX);
CR
206.013,

at
1884­
85
(
JA
XX).
For
example,
many
manufacturing
facilities
require
wet
cooling
technology
because
they
use
the
cooling
water
in
their
manufacturing
process
and
dry
cooling
technology
will
not
provide
the
required
volume
of
water.

In
some
cases,
the
manufacturing
facilities
require
the
use
of
cooling
water
at
temperatures
that
cannot
be
reliably
met
by
utilizing
dry
cooling.
66
Fed.
Reg.
at
65,284/
1­
2
(
JA
XX).
Dry
cooling
technology
is
also
unavailable
to
many
power
producers,
as
it
has
not
been
demonstrated
to
be
feasible
at
large
coal­
fired
26/
At
the
time
of
promulgation
of
this
Rule,
the
largest
application
of
dry
cooling
at
a
coal­
fired
plant
in
the
United
States
was
a
plant
with
a
capacity
of
330
MW.
71%
of
the
projected
coal­
fired
plants
within
the
scope
of
this
Rule
are
larger
than
that.
CR
206.013
at
1885
(
JA
XX).

27/
The
temperature
at
the
largest
plant
where
dry
cooling
technology
was
demonstrated
was
below
average
for
conditions
throughout
the
United
States.
The
practical
limitations
of
dry
cooling
prevent
it
from
operating
as
efficiently
as
wet
cooling
in
warm
temperatures.
CR
206.014
at
1893
(
JA
XX).
The
increased
energy
consumption
for
a
dry
cooling
plant
in
a
hot
environment
can
exceed
12%.
TDD
at
Chap.
3
(
JA
XX).

­
42
­
plants.
26/
Further,
dry
cooling
technology
is
not
efficient
in
parts
of
the
country
with
warm
temperatures,
and
the
inefficiencies
of
dry
cooling
under
high
temperature
conditions
in
some
regions
of
the
country
would
create
an
unfair
competitive
advantage
for
those
facilities
located
in
cooler
regions
of
the
country.

66
Fed.
Reg.
at
65,283/
1
(
JA
XX).
27/
EPA
thus
concluded
that
dry
cooling
was
not
an
available
technology
for
all
new
facilities.
66
Fed.
Reg.
at
65,284/
1­
2
(
JA
XX).

Environmental
Petitioners
challenge
EPA's
consideration
of
the
technical
availability
of
dry
cooling
technology,
insisting
that
EPA
cannot
reject
a
demonstrated
technology
based
on
engineering
problems
that
make
dry
cooling
technology
unavailable
to
some
industries.
Env.
Pet.
Br.
at
48.
The
Environmental
Petitioners
urge
that,
to
the
extent
dry
cooling
is
not
technically
feasible
for
all
industries,
EPA
is
required
to
regulate
cooling
water
intake
on
an
industry­
by­
28/
While
that
may
have
been
an
option
available
to
EPA,
EPA
is
clearly
authorized
to
regulate
cooling
water
intake
systems
by
a
single
rule
applicable
to
all
industries.
Cronin
v.
Browner,
898
F.
Supp.
at
1060.
Environmental
Petitioners
expressly
recognize
EPA's
authority
to
implement
the
CWA
§
316(
b)
with
a
regulation
that
applies
to
all
point
sources
that
use
cooling
water
intake
structures.
Env.
Pet.
Br.
at
27.

­
43
­
industry
basis.
28/
EPA
did
consider
that
approach,
including
subcategorization
strategies
based
on
regional
location
of
the
facilities,
size,
and
type
of
process
(
e.
g.,
steam
electric
power
plants
v.
manufacturing
facilities).
66
Fed.
Reg.
at
65,270,
n.
29
(
JA
XX);
CR
006.007
at
29­
30
(
JA
XX).
EPA,
however,
rejected
that
approach
because
EPA
is
concerned
that
if
dry
cooling
were
required
at
some
facilities
(
at
which
its
feasibility
has
been
demonstrated)
but
not
all
facilities,
it
would
create
a
competitive
disadvantage
for
those
facilities
subject
to
the
dry
cooling
requirements.
66
Fed.
Reg.
at
65,283/
1
(
JA
XX).

d.
The
slight
additional
reductions
in
entrainment
do
not
require
EPA
to
adopt
dry
cooling
as
the
best
technology
available.

Environmental
Petitioners
argue
that
dry
cooling
is
the
best
technology
available
because
it
would
lead
to
slightly
greater
reductions
in
adverse
environmental
impact.
EPA
recognizes
that
dry
cooling
is
somewhat
more
effective
than
wet
cooling
in
reducing
entrainment
(
although
it
is
not
more
effective
in
reducing
impingement),
but
Environmental
Petitioners
have
grossly
distorted
the
comparison.
Env.
Pet.
Br.
at
48.
EPA's
analysis
shows
that
wet
29/
The
effectiveness
of
wet
cooling
technology
with
respect
to
entrainment
varies,
depending
upon
the
waterbody
and
other
factors.
Closed­
cycle
wet
cooling
systems
using
fresh
water
may
reduce
water
usage,
and
therefore
entrainment,
by
96
to
98
%
over
once­
through
cooling
systems,
whereas
closed­
cycle
wet
cooling
systems
using
salt
water
may
reduce
water
usage,
and
therefore
entrainment,
by
70
to
96
%
over
once­
through
cooling
systems.
66
Fed.
Reg.
at
65,273/
3
(
JA
XX).
The
vast
majority
of
new
facilities
in
the
scope
of
the
Rule
will
locate
on
fresh
water,
thereby
maximizing
the
reductions
achievable
through
the
use
of
wet
cooling.
Economic
Analysis
of
the
Final
Regulations
(
EA)
at
5­
11
(
JA
XX­
X).

30/
Economic
analysis
demonstrated
that
dry
cooling
would
result
in
annualized
compliance
costs
of
over
$
490
million,
as
compared
to
$
47
million
for
the
compliance
costs
of
wet
cooling.
66
Fed.
Reg.
at
65,282/
3­
83/
1
(
JA
XX­
XX).

­
44
­
cooling
virtually
eliminates
impingement
and
substantially
reduces
entrainment.

Compared
to
once­
through
cooling
systems,
closed­
cycle
recirculating
wet
cooling
reduces
impingement
and
entrainment
by
92%
to
95%,
whereas
dry
cooling
reduces
impingement
and
entrainment
by
up
to
99%.
29/
EPA
found
that
this
difference
in
effectiveness
did
not
justify
the
ten
times
greater
costs
associated
with
dry
cooling
technology.
CR
206.012
at
1881
(
JA
XX).
30/
EPA
thus
concluded
that
wet
cooling
is
substantially
more
cost
effective
than
dry­
cooling.
66
Fed.
Reg.
at
65,284/
1
(
JA
XX).

EPA
does
not
interpret
CWA
§
316(
b)
as
requiring
complete
elimination
of
adverse
environmental
impacts.
Rather,
EPA
interprets
CWA
§
316(
b)
as
allowing
some
discretion
to
consider
technologies
that
very
effectively
reduce,
but
do
not
completely
eliminate,
impingement
and
entrainment
as
meeting
the
requirements
­
45
­
of
CWA
§
316(
b).
66
Fed.
Reg.
at
65,282/
3
(
JA
XX).
EPA
believes
that
the
unique
phrase
"
minimizing
adverse
environmental
impact"
in
CWA
§
316(
b)

supports
an
interpretation
that
considers
the
practicability
and
reasonableness
of
incrementally
stringent
measures,
including,
among
other
things,
economic
considerations.

EPA's
interpretation
is
consistent
with
the
interpretation
of
other
technology­
based
performance
standards.
For
example,
CWA
§
306,
governing
new
source
performance
standards
for
effluent
discharges,
provides:

[
the]
standard
for
the
control
of
the
discharge
of
pollutants
which
reflects
the
greatest
degree
of
effluent
reduction
which
the
Administrator
determines
to
be
achievable
through
application
of
the
best
available
demonstrated
control
technology,
processes,
operating
methods,
or
other
alternatives,
including,
where
practicable,
a
standard
permitting
no
discharge
of
pollutants.

33
U.
S.
C.
§
1316(
a)(
1).
Even
this
section,
which
expressly
authorizes
a
zerodischarge
standard,
does
not
require
EPA
to
adopt
technology
to
achieve
zero
discharge
when
the
cost
is
too
high.
EPA
reasonably
considered
the
mandate
of
CWA
§
316(
b)
to
"
minimize"
adverse
environmental
impact
to
be
no
more
stringent
than
the
authority
to
adopt
a
zero
discharge
standard.
CR
206.032
at
1928
(
JA
XX).

Environmental
Petitioners
insist
that
EPA
must
look
to
the
best
performing
pilot
plant,
not
the
average
plant,
to
determine
the
best
technology
available,
31/
EPA
considered
every
existing
dry
cooling
installation
in
the
United
States
and
abroad.
For
complete
description,
see
TDD
at
4­
3,
4­
4
(
JA
XX).

­
46
­
relying
on
Kennecott
v.
EPA,
780
F.
2d
445
(
4th
Cir.
1986).
Although
Kennecott
requires
that
EPA
consider
the
model
plant,
it
did
not
require
that
the
model
technology
be
adopted.
The
Court
stated:
"
The
cost
of
installing
and
operating
a
model
technology
is
not,
however,
a
matter
that
Congress
has
permitted
the
agency
to
ignore.
The
statute
requires
EPA
to
take
into
account
the
cost
of
achieving
effluent
reduction."
Kennecott,
780
F.
2d
at
456.
EPA
did
consider
many
plants
operating
with
dry
cooling
technology,
31/
but
considering
those
plants
does
not
require
EPA
to
adopt
performance
requirements
based
on
the
technology.

In
BP
Exploration
&
Oil
Inc.
v.
EPA,
66
F.
3d
784
(
6th
Cir.
1995),
the
NRDC
made
an
argument
similar
to
that
made
by
Environmental
Petitioners.
NRDC
alleged
that
EPA
illegally
rejected
a
demonstrated
technology
that
achieved
zero
discharge
even
though
it
represented
the
"
best
single
performer
in
an
industry."

The
court
concluded
that
"
EPA
acted
within
its
statutory
authority
in
rejecting
zero
discharge
based
on
reinjection,"
explaining
that
"
the
CWA's
requirement
that
EPA
choose
the
best
technology
does
not
mean
that
the
chosen
technology
must
be
the
best
pollutant
removal.
Obviously,
BAT
and
NSPS
must
be
acceptable
on
the
basis
of
numerous
factors,
only
one
of
which
is
pollution
control."
Id.
at
796.

See
also
American
Petroleum
Institute
v.
EPA,
787
F.
2d
965,
972
(
5th
Cir.
1986)
­
47
­
("
EPA
would
disserve
its
mandate
were
it
to
tilt
at
windmills
by
imposing
BAT
limitations
which
removed
de
minimis
amounts
of
polluting
agents
from
our
nation's
waters,
while
imposing
possibly
disabling
costs
upon
the
regulated
industry.").

e.
EPA
has
substantial
discretion
in
weighing
of
the
factors
and
its
determination
is
entitled
to
deference.

EPA
has
considerable
discretion
in
determining
the
weight
to
be
accorded
to
each
relevant
factor
in
reaching
its
determination
of
the
best
technology
available.

In
review
of
standards
established
under
CWA
§
306,
the
D.
C.
Circuit
held
that
"[
t]
he
overriding
principle
in
our
review
of
the
Final
Rule
is
that
the
agency
has
broad
discretion
to
weigh
all
relevant
factors
during
rulemaking.
The
CWA
does
not
state
what
weight
should
be
accorded
to
the
relevant
factors;
rather,
the
Act
gives
EPA
the
discretion
to
make
those
determinations."
National
Wildlife
Fed'n,

286
F.
3d
at
570
(
citing
BP
Exploration
&
Oil,
Inc.,
66
F.
3d
at
802);
NRDC
v.

EPA,
863
F.
2d
1420,
1426
(
9th
Cir.
1988).
With
respect
to
standards
established
under
CWA
§
301,
Congress
"
left
EPA
with
discretion
to
decide
how
to
account
for
the
consideration
factors,
and
how
much
weight
to
give
each
factor."

Weyerhaeuser
Co.
v.
Costle,
590
F.
2d
1011,
1045
(
D.
C.
Cir.
1978).

Environmental
Petitioners'
argument
was
summarized
well
by
the
court
in
BP
Exploration
&
Oil,
Inc.:
"
As
EPA
correctly
points
out,
NRDC's
contention
­
48
­
that
economic,
energy,
and
non­
water
quality
environmental
impacts
are
less
important
than
achieving
zero
discharge
merely
reflects
NRDC's
disagreement
on
a
policy
level.
This
Court
may
not
substitute
NRDC's
judgment,
any
more
than
our
own,
for
that
of
the
EPA."
66
F.
3d
at
802.
In
this
case,
the
Environmental
Petitioners'
contention
that
economic,
energy,
and
non­
water
quality
environmental
impacts
are
less
important
than
achieving
a
slight
reduction
in
impingement
and
entrainment
merely
reflects
the
Environmental
Petitioners'

disagreement
with
EPA
on
a
policy
level.
This
Court
should
not
substitute
the
Environmental
Petitioners'
judgment,
any
more
than
its
own,
for
that
of
the
EPA.

B.
Track
II
Of
EPA's
Rule
Is
Authorized
By
CWA
§
316(
b)
And
Supported
By
The
Administrative
Record.

In
the
Rule,
EPA
adopted
a
two­
track
approach
to
compliance
with
the
technology­
based
standard.
66
Fed.
Reg.
at
65,259/
3
(
JA
XX).
Under
Track
I
of
the
Rule,
a
facility
may
implement
any
technology
that
meets
the
performance
requirements
based
on
closed­
cycle
recirculating
wet
cooling.
Under
Track
II
of
the
Rule,
a
facility
may
employ
any
technology
or
set
of
technologies
that
will
reduce
the
level
of
impingement
and
entrainment
to
a
level
comparable
to
that
32/
EPA's
approach
in
this
rule
is
not
novel.
When
establishing
effluent
guidelines
for
Pesticide
Chemicals:
Formulating,
Packaging
and
Repackaging,
EPA
established
a
numeric
limitation
but
also
a
set
of
best
management
practices
that
would
yield
the
same
numeric
results.
See
61
Fed.
Reg.
57,518,
57,521
(
Nov.
6,
1996).

­
49
­
which
would
be
achieved
by
compliance
with
the
Track
I
performance
requirements.
40
C.
F.
R.
§
125.84(
d)(
1).
32/

The
two­
track
approach
provides
facilities
with
greater
flexibility
in
compliance,
which
EPA
concluded
is
particularly
important
under
a
rule,
such
as
this,
which
governs
so
many
different
types
of
facilities,
in
many
industry
groups,

of
varying
sizes
and
locations.
By
providing
flexibility,
Track
II
creates
an
incentive
for
the
development
of
innovative
technologies
to
meet
the
requirements
of
the
Rule.
66
Fed.
Reg.
at
65,270/
2
(
JA
XX).

Environmental
Petitioners
complain
that
Track
II
establishes
a
less
stringent
standard
and
is
therefore
not
the
best
technology
available;
that
restoration
measures
permitted
under
Track
II
are
not
authorized
by
the
statute;
and
that
Track
II
impermissibly
requires
a
case­
by­
case
determination
of
best
technology
available.
EPA
disagrees.
Track
II
does
not
create
a
different
standard,
but
requires
comparable
performance
in
the
reduction
of
impingement
and
entrainment.
EPA
further
believes
that
any
strategy,
including
restoration,
that
results
in
comparable
reduction
in
impingement
and
entrainment
is
an
authorized
33/
A
less
stringent
standard
may
be
permitted
under
the
alternative
requirements
provision,
discussed
in
Argument
I.
C.
below.
However,
that
fact
is
not
relevant
to
the
issue
of
the
propriety
of
Track
II.

34/
The
measurements
are
inexact
due
to
unavoidable
sampling
errors,
variability
in
the
performance
of
the
techologies
used
to
minimize
entrainment
and
impingement,
and
the
natural
variability
of
aquatic
populations
found
in
the
source
waterbody.
Administrative
Report
No.
83­
3,
"
Evaluation
of
316(
b)
Demonstration
Detroit
Edison's
Monroe
Power
Plant"
(
March
1978),
DCN
1­
3025
at
11,
17,
27,
(
continued...)

­
50
­
technology
under
CWA
§
316(
b).
EPA's
interpretation
of
the
statute
and
its
factual
conclusions,
as
embodied
in
Track
II,
are
reasonable,
and
therefore
must
be
upheld.

1.
EPA's
Track
II
Requirement
of
Comparable
Reduction
in
Impingement
and
Entrainment
is
Reasonable.

Contrary
to
Environmental
Petitioners'
suggestion,
Track
II
of
the
Rule
does
not
create
a
standard
that
is
less
stringent
than
Track
I.
The
Rule
establishes
a
nationwide,
uniform,
standard
for
reduction
of
impingement
and
entrainment
based
on
the
best
technology
available.
The
Rule
requires
that
all
facilities
subject
to
the
Rule
meet
that
standard,
either
by
meeting
the
performance
requirements
under
Track
I,
or
by
achieving
a
comparable
level
of
reduction
in
impingement
and
entrainment
under
Track
II.
33/

EPA
required
that
the
reduction
in
impingement
and
entrainment
be
"
comparable"
rather
than
"
equivalent"
because
EPA
recognized
that
measurements
of
impingement
and
entrainment
are
not
exact.
34/
Given
the
lack
of
precision
in
34/(...
continued)
35,
37,
38,
39
and
41
(
JA
XX­
XX);
TDD
at
5­
1,
5­
5
(
JA
XX­
XX);
Eugene
P.
Odum,
"
Fundamentals
of
Ecology"
(
3d
ed.),
DCN
1­
1022
at
188­
195
(
JA
XXXX

35/
New
facility
determinations
regarding
flow
or
impingement
and
entrainment
are,
by
necessity,
estimates
based
on
available
data
as
well
as
certain
assumptions.
Such
estimates
have
substantial
value
but
cannot
reasonably
be
expected
to
achieve
a
high
level
of
precision.
This
is
particularly
true
where,
as
here,
impingement
and
entrainment
rates
must
be
correlated
with
reductions
in
flow
(
which
are
themselves
estimated),
reductions
in
intake
velocity,
and
other
design
and
construction
requirements.
It
also
is
important
to
recognize
that
the
efficacies
of
different
design
and
construction
technologies
also
are
based
on
estimates
that
are
inexact
due
to
data
limitations,
variations
in
ambient
conditions,
and
the
presence
or
absence
of
different
species,
among
other
factors.
66
Fed.
Reg.
at
65,279/
2
(
JA
XX).
See
also
TDD
at
5­
2
(
JA
XX).

­
51
­
measurement,
EPA
determined
that
it
would
not
be
reasonable
to
require
"
equivalence"
in
measuring
reductions
in
impingement
and
entrainment
for
purposes
of
comparing
Track
I
and
the
Track
II
performance.
Id.
EPA's
allowance
for
a
margin
of
error
in
the
measurement
of
impingement
and
entrainment
is
reasonable,
given
the
numerous
factors
that
must
be
considered
to
determine
the
required
level
of
reduction
in
impingement
and
entrainment
for
Track
II
and
the
complexity
inherent
in
assessing
the
level
of
performance
of
different
control
technologies.
35/
66
Fed.
Reg.
at
65,281/
1
(
JA
XX).
See
also
66
Fed.
Reg.
at
65,279/
2
(
JA
XX).
36/
EPA
has
typically
used
a
10%
margin
to
allow
for
uncertainty
in
waterbody
measurements.
EPA's
CWA
§
305(
b)
Guidance
recommends
for
certain
conventional
pollutants
that
States
may
consider
a
waterbody
to
meet
its
designated
use
if
criteria
are
exceeded
in
10%
or
less
of
measurements.
Guidelines
(
continued...)

­
52
­
EPA
defined
"
comparable"
as
at
least
90%.
40
C.
F.
R.
§
125.86.
However,

the
90%
is
not
intended
to
establish
a
different
or
less
stringent
standard
but,

rather,
is
to
account
for
a
reasonable
margin
of
error
in
measuring
compliance.
As
EPA
stated
in
the
preamble
to
the
Rule:

EPA
does
not
consider
this
requirement
to
mandate
exactly
the
same
level
of
reduction
in
impingement
and
entrainment
as
would
be
achieved
under
Track
I.
Rather,
given
the
numerous
factors
that
must
be
considered
to
determine
the
required
level
of
reduction
in
impingement
and
entrainment
for
Track
II
and
the
complexity
inherent
in
assessing
the
level
of
performance
of
different
control
technologies,
EPA
believes
it
is
appropriate
for
a
new
facility
following
Track
II
to
achieve
reductions
in
impingement
and
entrainment
that
are
90%
or
greater
of
the
levels
achieved
under
Track
I.

66
Fed.
Reg.
at
65,279/
2
(
JA
XX).
In
implementation,
EPA
intends
that
facilities
following
Track
II
will
design
the
cooling
water
intake
structure
to
obtain
the
same
performance
as
would
be
achieved
with
the
use
of
closed­
cycle
recirculating
cooling
technology
under
Track
I
requirements,
but
if
the
subsequent
monitoring
establishes
a
90%
or
greater
reduction
in
impingement
and
entrainment,
it
will
be
considered
comparable.
EPA
determined
that
10%
is
a
reasonable
margin
of
error
for
such
estimates.
36/
36/(...
continued)
for
Preparation
of
the
Comprehensive
State
Water
Quality
Assessments
(
305(
b)
Reports)
and
Electronic
Updates:
Supplement
EPA­
841­
B­
97­
002B,
Sept.
1997
at
3­
17.
(
App.
XX).

­
53
­
In
NRDC
v.
Muszynski,
268
F.
3d
91,
101­
02
(
2d
Cir.
2001),
this
Court
upheld
EPA's
selection
of
10%
as
a
reasonable
margin
of
safety
in
establishing
"
total
maximum
daily
loads,"
recognizing
that
the
10%
margin
of
safety
"
accounts
for
the
inherent
uncertainty
in
modeling
the
effect
of
pollutant
loads
on
the
quality
of
the
receiving
waterbody."
Id.
at
101.
A
similar
level
of
uncertainty
exists
in
the
measurement
of
impingement
and
entrainment.
See
also
National
Wildlife
Fed'n,

286
F.
3d
at
565
(
approving
EPA's
reliance
on
scientific
data
with
a
15%
error
rate).

EPA
is
entitled
to
particular
deference
with
regard
to
scientific
matters
in
its
area
of
technical
expertise.
See
Baltimore
Gas
&
Elec.
Co.
v.
NRDC,
462
U.
S.
87,

103
(
1983);
National
Wildlife
Fed'n,
286
F.
3d
at
559;
Appalachian
Power
Co.
v.

EPA,
249
F.
3d
1032,
1051­
62
(
D.
C.
Cir.
2001);
New
York
v.
Reilly,
969
F.
2d
at
1152;
Ethyl
Corp.,
541
F.
2d
at
36.
This
Court
has
even
approved
the
exercise
of
"
an
uncomfortable
degree
of
discretion"
when
there
is
no
standard
or
guideline
concerning
the
appropriate
margin.
Muszynski,
268
F.
3d
at
102.
Because
Track
II
compliance
requires
evaluation
of
highly
variable
scientific
data
and
statistical
information,
a
high
degree
of
deference
is
warranted.
­
54
­
2.
EPA
Reasonably
Interpreted
CWA
§
316(
b)
to
Permit
Restoration
Measures
as
a
Compliance
Option.

The
Rule
permits
the
use
of
restoration
measures,
in
conjunction
with
other
technologies,
if
the
applicant
can
demonstrate
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
[
Track
I]."
40
C.
F.
R.
§
§
125.84(
d)(
1)(
i),
125.86(
c)(
2)(
ii).

Environmental
Petitioners
argue
that
the
statute
does
not
authorize
EPA
to
allow
restoration
measures
as
a
compliance
option
under
Track
II.
However,
the
statute
is
silent
on
this
matter,
and
EPA's
interpretation
is
entitled
to
deference
because
EPA's
interpretation
is
consistent
with
the
goals
and
purposes
of
the
statute.

EPA
interprets
CWA
§
316(
b)
to
provide
EPA
with
sufficient
authority
to
authorize
the
use
of
voluntary
restoration
measures
as
a
means
to
minimize
adverse
environmental
impact,
because
the
net
effect
is
the
same.
EPA
views
restoration
measures
as
part
of
the
"
design"
of
a
cooling
water
intake
structure,
and
considers
restoration
measures
one
of
several
technologies
that
may
be
employed,
in
combination
with
others,
to
minimize
adverse
environmental
impact.
66
Fed.
Reg.

at
65,315/
1
(
JA
XX).
EPA's
interpretation
is
consistent
with
the
purpose
of
CWA
§
316(
b):
to
minimize
adverse
environmental
impact
from
cooling
water
intake
structures.
It
is
also
consistent
with
the
purpose
of
the
CWA
generally:
"
to
restore,
­
55
­
maintain
and
protect
the
biological
integrity
of
the
nation's
waters."
33
U.
S.
C.
§
1251(
a)
(
emphasis
added).
Measures
that
restore
fish
and
shellfish
to
replace
those
that
are
impinged
and
entrained
further
this
objective,
while
offering
a
significant
degree
of
flexibility
to
both
permitting
authorities
and
facilities.
The
availability
of
restoration
may
make
compliance
possible
for
some
facilities
that
might
otherwise
be
unable
to
build
a
new
facility,
or
that
would
be
forced
to
seek
protection
through
the
less
stringent
alternative
requirements
provision,
discussed
infra
at
Argument
I.
C.
66
Fed.
Reg.
at
65,314/
1
(
JA
XX).

Because
EPA
adopted
its
interpretation
through
notice
and
comment
rulemaking,

EPA's
interpretation
is
entitled
to
Chevron
deference
if
it
is
reasonable
in
light
of
the
goals
and
purposes
of
the
statute.
United
States
v.
Meade
Corp.,
533
U.
S.
218,

229
(
2001).

Environmental
Petitioners
claim
that
EPA's
interpretation
is
not
entitled
to
deference
because,
20
years
ago,
when
Congress
was
considering
the
substantial
amendments
to
the
Clean
Water
Act,
EPA
testified
in
support
of
a
proposed
amendment
to
CWA
§
316(
b)
that
would
have
expressly
authorized
the
use
of
restoration
measures
as
compliance
options.
The
Environmental
Petitioners
conclude
from
EPA's
testimony
that
EPA
interpreted
the
statute
as
not
authorizing
restoration
measures
as
compliance
alternatives.
It
is
equally
plausible,
however,
37/
As
the
Supreme
Court's
decision
in
Chevron
confirms,
EPA
has
authority
to
interpret
ambiguous
statutory
provisions
in
a
manner
consistent
with
the
statutory
purpose,
and
its
interpretation
is
entitled
to
deference.

38/
EPA
has
gathered
substantially
more
data
to
inform
its
judgment
since
its
testimony
20
years
ago.
EPA
has
developed
extensive
information
concerning
cooling
water
intake
structures,
the
environmental
impact
resulting
from
them,
and
various
technologies
available
to
reduce
impingement
and
entrainment.
66
Fed.
Reg.
at
65,262­
65
(
JA
XX­
XX).

39/
In
Chevron
the
Supreme
Court
recognized
the
right
of
an
Agency
to
change
its
interpretation
notwithstanding
Supreme
Court
affirmance
of
the
earlier
view
and
notwithstanding
the
interpretation
being
at
variance
with
prior
precedent
of
the
D.
C.
Circuit.
467
U.
S.
at
841­
42.

­
56
­
that
EPA
recognized
the
ambiguity
in
the
statute
and
proposed
the
amendment
merely
for
clarification.
37/

Even
if
that
is
a
fair
characterization
of
EPA's
interpretation
of
the
provision
20
years
ago,
EPA
is
entitled
to
change
its
view,
particularly
when
the
passage
of
time
and
the
gathering
of
data
has
provided
additional
relevant
information
to
inform
its
judgment.
38/
Agencies
are
entitled
to
make
"
sharp
breaks"
with
their
prior
statutory
interpretations.
Rust
v.
Sullivan,
500
U.
S.
173
(
1991).
"
This
Court
has
rejected
the
argument
that
an
agency's
interpretation
`
is
not
entitled
to
deference
because
it
represents
a
sharp
break
with
prior
interpretations'
of
the
statute
in
question."
Rust,
500
U.
S.
at
186
(
citing
Chevron,
467
U.
S.
at
862).
39/

"
In
Chevron,
we
held
that
a
revised
interpretation
deserves
deference
because
`[
a]
n
initial
agency
interpretation
is
not
instantly
carved
in
stone'
and
`
the
agency,
to
­
57
­
engage
in
informed
rulemaking,
must
consider
varying
interpretations
and
the
wisdom
of
its
policy
on
a
continuing
basis.'"
Id.
at
863­
64.
An
agency
is
not
required
to
"`
establish
rules
of
conduct
to
last
forever,'"
Motor
Vehicle
Mfrs.

Ass'n
of
United
States,
Inc.
v.
State
Farm
Mut.
Auto.
Ins.
Co.,
463
U.
S.
29,
42
(
1983)
(
quoting
American
Trucking
Ass'ns,
Inc.
v.
Atchison,
T.
&
S.
F.
R.
Co.,
387
U.
S.
397
(
1967));
NLRB
v.
Curtin
Matheson
Scientific,
Inc.,
494
U.
S.
775
(
1990),

but
rather
"
must
be
given
ample
latitude
to
`
adapt
[
its]
rules
and
policies
to
the
demands
of
changing
circumstances.'"
Motor
Vehicle
Mfrs.
Ass'n,
463
U.
S.
at
42
(
quoting
Permian
Basin
Area
Rate
Cases,
390
U.
S.
747,
784
(
1968)).
66
Fed.
Reg.

at
65,280/
3
(
JA
XX);
66
Fed.
Reg.
at
65,314/
2­
15/
2
(
JA
XX­
XX).
Because
EPA's
interpretation
is
reasonable
in
light
of
the
purpose
and
goals
of
the
statute,
it
is
entitled
to
deference
and
should
be
upheld.

3.
Track
II
Does
Not
Require
a
Case­
By­
Case
Determination
of
Best
Technology
Available.

Environmental
Petitioners
also
challenge
the
Track
II
compliance
strategy,

arguing
that
it
impermissibly
allows
a
case­
by­
case
determination
of
best
technology
available.
This
is
a
mischaracterization
of
the
Rule.
In
fact,
several
industry
groups
advocated
that
EPA
should
adopt
a
case­
by­
case
approach
to
determination
of
best
technology
available,
but
EPA
rejected
that
approach.

66
Fed.
Reg.
at
65,272/
3,
65,284/
2­
85/
2
(
JA
XX,
XX­
XX).
A
case­
by­
case
­
58
­
compliance
approach
would
have
allowed
a
site­
specific
determination
of
best
technology
available,
resulting
in
different
levels
of
reduction
in
impingement
mortality
and
entrainment,
based
on
an
assessment
of
the
waterbody
and
the
impact
of
the
intake
on
the
fish
and
shellfish
population.
By
contrast,
the
Rule
requires
all
facilities,
regardless
of
site­
specific
circumstances,
to
achieve
a
defined
level
of
performance,
without
having
to
first
prove
an
impact
on
the
fish
and
shellfish
population.
40
C.
F.
R.
§
125.86(
c)(
2)(
i).

Environmental
Petitioners
also
mischaracterize
the
Comprehensive
Demonstration
Study
required
for
Track
II
approval.
40
C.
F.
R.
§
125.84(
d)

requires
that
a
Comprehensive
Demonstration
Study
must
be
conducted
to:

confirm
that
the
technology(
ies)
proposed
and/
or
implemented
at
your
cooling
water
intake
structure
reduce
the
impacts
to
fish
and
shellfish
to
levels
comparable
to
those
you
would
achieve
were
you
to
implement
the
requirements
in
§
125.84(
b)(
1)
and
(
2)
of
track
I.

40
C.
F.
R.
§
125.86(
c)(
2).
The
Demonstration
Study
is
not
required
under
Track
I
because
EPA
has
already
determined
that
compliance
with
the
performance
requirements
established
in
Track
I
will
reduce
impingement
and
entrainment
to
an
acceptable
level.
However,
if
a
facility
chooses
the
Track
II
compliance
option,

the
facility
must
prove
that
the
proposed
technology,
or
combination
of
technologies,
will
achieve
comparable
results.
­
59
­
Although
Track
II
does
require
a
study
of
the
types
of
aquatic
organisms
in
the
waterbody,
it
is
not
a
water­
quality
based
approach,
as
Environmental
Petitioners
contend.
Env.
Pet.
Br.
at
37.
The
study
is
required
to
measure
performance
of
the
facility's
reduction
of
impingement
and
entrainment,
not
to
determine
the
impact
of
the
facility
on
the
population.
CR
501.003
at
2068­
9
(
JA
XX­
XX).

In
sum,
Environmental
Petitioners
are
concerned
that
compliance
options
other
than
wet
cooling
will
not
achieve
the
same
level
of
reduction
in
impingement
mortality
and
entrainment
as
Track
I
performance
standards.
Those
are
concerns
about
the
implementation
of
Track
II
compliance
strategies,
not
about
the
Rule
itself.
Such
concerns
are
not
presently
ripe
for
review,
and
should
be
addressed
to
permitting
officials
in
the
context
of
individual
permit
decisions.

C.
The
Alternative
Requirements
Provision
of
EPA's
Rule
is
Authorized
by
CWA
§
316(
b)
and
Supported
by
the
Administrative
Record.

Section
125.85,
40
C.
F.
R.
§
125.85,
of
the
Rule
permits
facilities
to
employ
alternative
requirements,
which
may
be
less
stringent
than
the
standard
based
on
the
best
technology
available,
but
only
in
certain
narrow
and
limited
circumstances
that
demonstrate
the
reasonableness
of
EPA's
approach.
The
alternative
requirements
are
available
only
if
the
permitting
authority:
40/
In
this
respect,
the
alternative
requirements
provision
is
distinguishable
from
the
variance
provision
struck
down
in
NRDC
v.
EPA
which
was
"
wholly
silent
as
to
what
factors
the
agency
was
to
consider
in
granting
exceptions."
863
F.
2d
at
1432.

­
60
­
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
those
EPA
considered
in
establishing
the
requirements
at
issue
or
would
result
in
significant
adverse
impacts
on
local
air
quality,
significant
adverse
impacts
on
local
water
resources,
not
addressed
under
§
125.84(
d)(
1)(
i),
or
significant
adverse
impacts
on
local
energy
markets.

40
C.
F.
R.
§
125.85(
a)(
2).

EPA
determined
that
the
use
of
alternative
requirements
in
such
circumstances
is
both
reasonable
and
consistent
with
the
objective
of
the
statute.

66
Fed.
Reg.
at
65,322/
2­
3
(
JA
XX);
CR
206.032
at
1928
(
JA
XX).
As
EPA
explained,
the
Rule
will
apply
to
a
variety
of
sources
that
may
be
affected
differently
by
the
requirements.
Although
EPA
considered
all
available
data
it
was
able
to
collect,
develop
and
solicit
regarding
projected
new
facilities,
the
alternative
requirements
provision
simply
allows
the
permitting
authority
to
consider
site­
specific
information
that
was
not
available
to,
and
therefore
not
considered
by,
EPA
during
the
rulemaking.
40/
66
Fed.
Reg.
at
65,319/
3­
20/
1
(
JA
XX­
XX).

This
provision
is
very
much
like
the
"
fundamentally
different
factors"

provision
in
CWA
§
301(
n),
33
U.
S.
C.
§
1311(
n),
which
authorizes
alternative
41/
The
"
Water
Quality
Act
of
1987".
Pub.
L.
No.
100­
4,
§
306,
reprinted
in
1987
U.
S.
C.
C.
A.
N.
5,
22
(
1987).

42/
In
NRDC,
the
justification
for
the
variance
provision
offered
by
EPA
was
very
much
like
the
justification
provided
for
the
alternative
requirements
provision
in
this
case.
Compare
39
Fed.
Reg.
6579,
6583
(
Feb.
20,
1974)
(
explaining
rationale
for
the
variance
provision
considered
in
NRDC
v.
EPA)
with
66
Fed.
Reg.
at
65,322
(
explaining
rationale
for
alternative
requirements
provision
in
this
Rule.)

­
61
­
requirements
for
sources
subject
to
national
technology­
based
standards
for
effluent
discharges,
if
the
facility
can
establish
that
it
is
fundamentally
different
with
respect
to
factors
considered
by
EPA
in
promulgating
the
national
standard.

The
fundamentally
different
factors
provision
was
added
to
the
statute
in
1987,41/

but
prior
to
the
amendment,
both
this
Court
and
the
Supreme
Court
upheld
EPA's
rules
containing
provisions
for
alternative
requirements
as
reasonable
interpretations
of
the
statute.
NRDC
v.
EPA,
537
F.
2d
642,
647
(
2d
Cir.
1976)

("
the
establishment
of
the
variance
clause
is
a
valid
exercise
of
the
EPA's
rulemaking
authority
pursuant
to
§
501(
a)
which
authorizes
the
Administrator
to
promulgate
regulations
which
are
necessary
and
proper
to
implement
the
Act");
42/

EPA
v.
National
Crushed
Stone
Ass'n,
449
U.
S.
64
(
1980)
(
approving
EPA's
alternative
requirements
provision
in
a
standard
adopted
pursuant
to
CWA
§
301(
b)(
1),
even
though
the
statute
did
not
expressly
permit
a
variance.)
EPA's
alternative
requirements
provision
in
this
Rule
is
similarly
a
reasonable
­
62
­
interpretation
of
§
316(
b)
and
valid
exercise
of
EPA's
rulemaking
authority
under
CWA
§
501.

Relying
heavily
on
the
Supreme
Court's
decision
in
E.
I.
duPont
de
Nemours
&
Co.
V.
Train,
430
U.
S.
112
(
1977),
Environmental
Petitioners
claim
that
the
statute
does
not
authorize
EPA
to
adopt
the
alternative
requirements
provision.
The
duPont
case
involved
a
challenge
to
a
new
source
performance
standard
on
grounds
that
it
did
not
provide
for
a
variance,
and
the
issue
presented
was
"
whether
the
new­
source
standards
issued
under
CWA
§
306
must
allow
variances
for
individual
plants."
Id.
at
115
(
emphasis
added).
The
actual
holding
of
the
Supreme
Court
was
no
more
than
that
a
variance
provision
is
not
required
in
a
new
source
performance
standard.

Moreover,
EPA's
316(
b)
rule
differs
from
the
CWA
§
306
rule
considered
by
the
Supreme
Court
in
duPont
in
two
significant
respects.
First,
CWA
§
306
applies
only
to
new
sources,
whereas
the
statutory
standard
in
CWA
§
316(
b)

applies
to
both
new
and
existing
sources.
Although
EPA
has
chosen
to
make
the
distinction
between
new
and
existing
sources
in
its
regulations,
the
statutory
standard
must
be
interpreted
as
applicable
to
both
new
and
existing
sources.
Both
this
court
and
the
Supreme
Court
have
approved
of
such
an
alternative
requirements
provision
in
rules
implementing
the
CWA
§
301
standards
applicable
to
existing
sources.
If
the
term
"
standard"
in
CWA
§
316(
b)
were
­
63
­
interpreted
as
Environmental
Petitioners
propose,
it
would
necessarily
exclude
alternative
requirements
for
existing
sources
as
well
as
for
new
sources.
CR
206.032
at
1928
(
JA
XX).
The
statute
should
not
be
read
so
narrowly.

Second,
standards
under
CWA
§
§
301
and
306
are
established
on
an
industry­
by­
industry
basis,
whereas
the
standards
under
CWA
§
316(
b)
apply
to
all
industries
subject
to
the
regulation.
Thus,
while
technology­
based
standards
under
CWA
§
§
301
and
306
can
be
tailored
to
the
specific
industry,
the
technology­
based
standards
adopted
under
CWA
§
316(
b)
for
new
facilities
apply
to
all
covered
industry
sources,
of
various
sizes
and
with
markedly
different
processes,
that
may
be
built
in
the
future.
EPA
specifically
considered
power
generating
facilities
and
several
types
of
manufacturing
facilities
in
this
rulemaking.
However,
EPA
cannot
be
certain
how
many
other
types
of
facilities
may
be
built
in
the
future
that
will
be
subject
to
this
rule,
nor
can
EPA
forecast
with
certainty
the
unique
individual
circumstances
that
may
impact
the
as­

yetunidentified
facilities.
316bNFR
206.032
at
1928
(
JA
XX).

Accordingly,
EPA
concluded
that
it
was
appropriate
to
allow
use
of
alternative
requirements
only
when
compliance
with
the
technology­
based
standard
would
result
in
costs
wholly
out
of
proportion
to
the
costs
EPA
considered
in
its
analysis,
or
if
compliance
with
the
standard
would
result
in
­
64
­
significant
adverse
environmental
impacts
not
considered
by
EPA.
66
Fed.
Reg.

at
65,282/
1
(
JA
XX);
CR
206.032
at
1928
(
JA
XX).

Because
the
statute
is
silent
on
the
issue,
and
because
the
alternative
requirements
provision
is
entirely
consistent
with
the
goals
and
purposes
of
the
statute,
EPA's
interpretation
is
entitled
to
Chevron
deference.
EPA
conducted
national
rulemaking
by
considering
the
costs
and
non­
water
quality
environmental
impacts
of
the
Rule
nationwide.
At
the
same
time,
EPA
recognized
that
local
concerns
about
energy
availability,
air
emissions,
or
water
impacts
might
be
so
great
that
they
justify
a
different
decision
at
the
local
level,
or
that
some
facility
not
considered
by
EPA
during
the
rulemaking
might
incur
compliance
costs
wholly
out
of
proportion
to
the
costs
EPA
considered.
EPA
concluded
that
it
is
reasonable
in
such
cases
to
allow
some
flexibility
for
the
local
permitting
authority
to
accommodate
these
concerns.
In
the
absence
of
a
limited
provision
allowing
use
of
alternative
requirements,
the
Rule
may
create
a
barrier
to
entry
for
some
facilities
for
which
compliance
costs
would
be
wholly
out
of
proportion
to
costs
considered
by
EPA,
or
for
which
compliance
would
result
in
local
environmental
impacts
(
including
reduction
of
energy
sources)
that
are
significant
and
unacceptable.
These
unacceptable
circumstances
can
be
avoided
by
judicious
use
of
the
alternative
requirements
provision.
As
is
the
case
with
respect
to
the
­
65
­
Environmental
Petitioners'
objection
to
Track
II
of
the
Rule,
the
concerns
expressed
relate
more
to
the
implementation
of
the
alternative
requirements
provision,
and
can
be
dealt
with
as
permits
are
issued.
Accordingly,
this
Court
should
uphold
the
alternative
requirements
provision
as
a
reasonable
interpretation
of
CWA
§
316(
b)
and
under
the
general
rulemaking
authority
of
CWA
§
501,
as
this
Court
did
in
NRDC
v.
EPA.

II.
UWAG'S
PETITION
SHOULD
BE
DENIED.

In
contrast
to
the
arguments
by
the
Environmental
Petitioners
that
the
Rule
is
not
stringent
enough
and
provides
too
much
flexibility,
UWAG
claims
that
EPA's
regulation
is
too
stringent
and
not
flexible
enough
to
recognize
the
different
circumstances
faced
by
each
facility.
As
demonstrated
below,
EPA
reasonably
interpreted
the
statute
and
implemented
the
requirements
of
CWA
§
316(
b).

A.
EPA's
Track
I
Requirements
Reasonably
Implement
CWA
§
316(
b)
By
Focusing
On
Reducing
The
Impingement
And
Entrainment
Of
Aquatic
Organisms
Caused
By
Cooling
Water
Intake
Structures.

Cooling
water
intake
structures
across
the
United
States
collectively
withdraw
an
estimated
279
billion
gallons
of
water
per
day
from
the
nation's
waters.
66
Fed.
Reg.
at
65,262/
3
(
JA
XX).
Such
large
withdrawals
cause
environmental
impacts
as
a
result
of
the
impingement
and
entrainment
of
all
forms
­
66
­
of
aquatic
organisms.
66
Fed.
Reg.
at
65,262/
3
(
JA
XX).
Under
CWA
§
316(
b),

cooling
water
intake
structures
must
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impact.
Not
surprisingly,
EPA's
focus
in
minimizing
the
environmental
impacts
from
cooling
water
intake
structures
was
on
the
reduction
of
impingement
and
entrainment.

UWAG,
representing
electric
utilities
that
use
large
quantities
of
cooling
water,
argues
that
EPA's
concern
with
impingement
and
entrainment
in
Track
I
was
arbitrary
and
capricious
because
the
Agency
assumed
that
all
impingement
and
entrainment
is
adverse
and
ignored
other
environmental
impacts
such
as
increased
land
use
and
air
emissions.
UWAG
also
raises
several
other
criticisms
of
EPA's
Track
I
requirements.
UWAG
Br.
at
13­
22.
As
shown
below,
UWAG's
arguments
should
be
rejected.

1.
EPA
Reasonably
Sought
To
Limit
Impingement
and
Entrainment
In
Implementing
CWA
§
316(
b).

The
fundamental
flaw
in
UWAG's
argument
on
this
point
is
its
contention
that
the
statutory
requirement
to
minimize
"
adverse
environmental
impact"
in
CWA
§
316(
b)
may
not
be
read
to
include
the
"
removing"
 
that
is,
the
killing
 
of
large
numbers
of
fish
or
eggs
through
impingement
and
entrainment
unless
this
killing
has
demonstrated
adverse
effects
on
the
overall
fish
population
or
ecosystem.
UWAG
Br.
at
16­
17.
EPA
has
concluded
otherwise.
43/
Further,
even
if
EPA's
reading
of
CWA
§
316(
b)
were
not
simply
the
plain
meaning
of
the
language,
EPA's
reading
is
a
permissible
reading
for
all
of
the
reasons
discussed
in
the
text
above,
and
thus
must
be
upheld
by
this
Court.
Chevron,
467
U.
S.
at
842­
43
&
n.
11
(
if
a
statute
is
silent
or
ambiguous
on
an
issue,
a
reviewing
court
must
accept
the
agency's
interpretation
if
it
is
reasonable).

­
67
­
EPA's
reading
of
CWA
§
316(
b)
is
simply
the
plain
meaning
of
the
statute.

The
plain
language
meaning
of
"
adverse
environmental
impact"
is
clearly
broad
enough
to
include
the
killing
and
harming
of
large
numbers
of
fish
and
other
aquatic
organisms,
and
does
not
require
EPA
to
demonstrate
with
certainty
that
such
killing
will
have
long
term
impacts
on
the
ecosystem
or
the
species'

populations.
43/

Further,
EPA's
reading
is
particularly
compelling
in
light
of
the
statutory
language
that
Congress
placed
in
the
subsection
preceding
CWA
§
316(
b).

In
CWA
§
316(
a),
33
U.
S.
C.
§
1326(
a),
Congress
specified
that
thermal
discharges
be
limited
to
levels
that
protect
"
a
balanced,
indigenous
population
of
shellfish,
fish
and
wildlife"
in
the
body
of
water
at
issue.
By
contrast,
in
CWA
§
316(
b),
Congress
used
the
broader
term
"
adverse
environmental
impact."

Congress's
decision
to
use
the
broader
language
in
CWA
§
316(
b)
rather
than
specifying
population
impacts
as
it
did
in
CWA
§
316(
a)
is
further
support
for
EPA's
reading
that
"
adverse
environmental
impact"
is
not
just
population
impact.

66
Fed.
Reg.
65,291­
92
(
JA
XX­
XX);
CR
068.007
at
1184­
85
(
JA
XX­
XX)
­
68
­
(
discussing
significance
of
difference
in
language
in
CWA
§
316(
a)
and
(
b));

CR
068.008
at
1189
(
JA
XX)
(
discussing
EPA's
interpretation
of
Congress's
intent
in
focusing
CWA
§
316(
a)
on
population
effects).

This
Court's
decision
in
New
York
Currency
Research
Corp.
v.
CFTC,
180
F.
3d
83
(
2d
Cir.
1999),
is
instructive
on
this
point.
In
New
York
Currency
Research
Corp.,
this
Court
compared
Congress's
use
of
the
phrases
"
every
person"
and
"
each
person"
in
some
provisions
of
the
Commodity
Exchange
Act
with
the
narrower
phrase
"
every
commodity
trading
advisor
and
commodity
pool
operator"
in
another
provision,
and
concluded
that
this
difference
in
breadth
of
language
should
be
understood
to
show
that
Congress
"
acted
purposefully
in
what
it
included
and
what
it
excluded."
180
F.
3d
at
90.
On
that
same
reasoning,
this
Court
should
conclude
that
Congress's
use
of
the
broader
phrase
"
adverse
environmental
impact"
in
CWA
§
316(
b)
rather
the
narrower
language
focusing
on
population
effects
in
CWA
§
316(
a)
demonstrates
Congress's
intent
to
have
CWA
§
316(
b)
focus
on
a
broad
set
of
environmental
impacts,
not
just
population
impacts.
See
also
United
States
v.
Barial,
31
F.
3d
216,
218
(
4th
Cir.
1994)

("
Where
Congress
has
chosen
different
language
in
proximate
subsections
of
the
same
statute,
courts
are
obligated
to
give
that
choice
effect.")
(
citing
Russello
v.

United
States,
464
U.
S.
16,
23
(
1983)).
­
69
­
EPA's
reading
here
is
also
consistent
with
the
legislative
history,
which
states
that
CWA
§
316(
b)
is
intended
to
minimize
"
any"
adverse
environmental
impact.
118
Cong.
Rec.
33,762
(
1972),
reprinted
in
1
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
93rd
Cong.,
1st
Sess.,
at
264
(
Comm.
Print
1973).

Further,
the
words
"
adverse
environmental
impact"
must
be
understood
in
light
of
the
entire
phrase
"
best
technology
available
for
minimizing
adverse
environmental
impact."
EPA
reasonably
interpreted
this
phrase
consistently
with
the
phrase
"
best
available
technology"
under
CWA
§
§
301
and
304
and
"
best
available
demonstrated
.
.
.
technology"
under
CWA
§
306
as
authorizing
a
technology­
based
approach.
CR
068.007
at
1183
(
JA
XX).
"
These
limitations
are
technology­
based
rather
than
harm
based;
that
is,
they
reflect
the
capabilities
of
available
pollution
control
technologies
to
prevent
or
limit
different
discharges
rather
than
the
impact
that
those
discharges
have
on
the
waters."
Texas
Oil
&
Gas
Ass'n
v.
EPA,
161
F.
3d
at
927
(
citing
E.
I.
du
Pont
de
Nemours
&
Co.,
430
U.
S.
at
130­
31).
Under
the
reasonable
interpretation
of
CWA
§
316(
b)
as
authorizing
a
technology­
based
approach,
EPA
is
not
be
compelled
to
require
the
permit
authority
to
first
establish
on
a
site­
specific
basis
how
effects
of
a
particular
facility
on
overall
fish
populations
or
the
ecosystem.
44/
As
one
example,
EPA
noted
a
study
of
the
impact
of
the
Brayton
Point
Generating
Station
in
Massachusetts,
which
showed
an
87%
reduction
in
finfish
populations
coincident
with
the
opening
of
a
new
cooling
water
system.
66
Fed.
Reg.
at
65,264/
2
(
JA
XX).

­
70
­
Finally,
EPA
has
considered
the
data
in
the
record
and
concluded
that
impingement
and
entrainment
are
themselves
adverse
to
the
environment
and
provide
a
more
objective
and
quicker
measure
of
the
performance
of
the
technologies
that
minimize
that
impact
than
population
or
ecosystem
studies.

CR
029.013
at
427
(
JA
XX);
66
Fed.
Reg.
at
65,292/
2
and
65,263­
65
(
JA
XX,

XX­
XX).
44/

UWAG's
reliance
on
the
EPA
Administrator's
opinion
in
In
Re
Public
Service
Co.
of
New
Hampshire,
10
Env't
Rep.
Cas.
(
BNA)
1257,
1268
(
1977)

(
cited
in
UWAG
Br.
at
16),
is
misplaced.
First,
the
page
in
that
opinion
cited
by
UWAG
is
within
the
portion
of
the
opinion
discussing
CWA
§
316(
a),
and
thus
is
properly
focused
on
population
impacts
because
subsection
(
a)
expressly
focuses
on
population.
Moreover,
in
the
portion
of
the
In
Re
Public
Service
Co.
opinion
addressing
subsection
(
b)
(
which
UWAG
does
not
cite),
the
discussion
focuses
on
entrapment
(
that
is,
impingement)
and
entrainment
rather
than
on
broader
population
or
ecosystem
impacts.
10
Env't
Rep.
Cas.
(
BNA)
at
1270­
72.
Thus,
if
anything,
this
case
supports
EPA's
focus
on
impingement
and
entrainment
as
the
fundamental
adverse
environmental
impact
to
be
minimized
under
CWA
§
316(
b).
­
71
­
For
these
reasons,
EPA
has
reasonably
interpreted
the
phrase
"
adverse
environmental
impacts"
to
include
impingement
and
entrainment.
UWAG's
contention
that
"
adverse
environmental
impacts"
are
only
those
that
cause
long­
term
population
or
ecosystem
effects
should
be
rejected.

2.
EPA
Reasonably
Rejected
UWAG's
Various
Claims
That
Impingement
And
Entrainment
Are
Not
Adverse
Environmental
Impacts.

In
arguing
that
EPA
should
not
have
considered
impingement
and
entrainment
as
adverse
environmental
impacts
under
CWA
§
316(
b),
UWAG
contends
that
not
all
impingement
and
entrainment
is
adverse.
In
support
of
its
contention,
UWAG
makes
a
variety
of
points
in
very
summary
form,
including
claims
that:
(
1)
some
of
the
impacts
are
to
"
nuisance"
species;
(
2)
some
declines
in
population
trigger
mechanisms
that
cause
the
population
to
rebound;
(
3)
some
fish
losses
are
fish
that
are
dead
or
dying
anyway;
and
(
4)
some
organisms
survive
entrainment.
UWAG
Br.
at
15­
16.

In
making
these
points,
however,
UWAG
does
not
even
attempt
to
demonstrate
their
significance.
For
example,
UWAG
does
not
suggest
that
the
impingement
and
entrainment
of
"
nuisance"
species
or
of
dead
and
dying
fish
represent
a
significant
proportion
of
the
fish
killed
by
cooling
water
intake
structures.
45/
EPA
acknowledges
that
episodes
of
low
dissolved
oxygen
and
rapid
temperature
declines
can
kill
fish
that
are
then
impinged
on
intake
structures,
but
does
not
believe
the
record
shows
that
this
is
a
significant
cause
of
fish
impingement.
66
Fed.
Reg.
at
65,290/
2
(
JA
XX).
See
also
CR
042.007
at
680
(
JA
XX)
("
EPA
acknowledges
that
cold­
shock
die­
offs
occur,
but
believes
these
are
sporadic
phenomena.")

­
72
­
Moreover,
UWAG
does
not
demonstrate
that
EPA
failed
to
consider
these
points.
Indeed,
UWAG's
own
brief
provides
an
example
of
where
EPA
considered
UWAG's
"
nuisance
species"
point.
UWAG
Br.
at
15
n.
9.

In
fact,
EPA
considered
these
points
and
the
relevant
information
in
the
record,

and
concluded
that:

°
Cooling
water
intake
structures
do
not
differentiate
between
killing
indigenous
species
and
nuisance
species,
and
so
the
fact
that
some
impacts
are
to
nuisance
species
does
not
reduce
the
importance
of
minimizing
impingement
and
entrainment
to
protect
indigenous
species,
CR
062.026
at
1077
(
JA
XX);

°
With
respect
to
UWAG's
claim
that
some
population
declines
trigger
population
rebounds,
these
effects
are
difficult
to
determine,
unknown
for
many
species,
and
should
not
be
relied
upon
without
significantly
more
data
than
is
available,
CR
068.015
at
1207
(
JA
XX),
CR
523.003
at
2389
(
JA
XX),
and
CR
523.102
at
2409
(
JA
XX);

°
The
impingement
and
entrainment
of
dead
or
dying
fish
has
not
been
shown
to
constitute
a
significant
proportion
of
impinged
and
entrained
fish,
and
that
the
impingement
and
entrainment
of
healthy
fish
is
well
documented,
CR
056.026
at
943
(
JA
XX);
45/
and
°
while
some
organisms
do
survive
entrainment,
multiple
studies
demonstrate
that
the
mortality
rate
from
entrainment
is
high.
CR
056.012
at
927
(
JA
XX).
­
73
­
In
short,
EPA
reasonably
declined
to
adopt
UWAG's
contention
that
impingement
and
entrainment
are
not
adverse
environmental
impacts.

3.
EPA
Considered
Non­
Water
Quality
Environmental
Impacts
Of
The
Rule
And
Reasonably
Determined
That
They
Would
Not
Pose
A
Significant
Problem.

UWAG
claims
that
EPA
ignored
certain
adverse
environmental
impacts
other
than
impingement
and
entrainment,
such
as
land
use
impacts
on
wetlands
or
protected
habitat,
reduced
visibility
from
vapor
plumes,
salt
deposition,
increased
energy
use,
and
increased
emissions
of
air
pollutants.
UWAG
Br.
at
20,
21­
22.

As
an
initial
point,
UWAG's
argument
here
 
and
the
comments
provided
to
EPA
during
the
rulemaking
 
fail
to
demonstrate
that
any
of
these
are
actually
significant
problems,
as
opposed
to
theoretical
possibilities.
CR
068.100
at
1366
(
JA
XX)
(
during
the
rulemaking,
EPA
invited
comments
on
whether
it
should
consider
nonaquatic
impacts,
see
65
Fed.
Reg.
at
49,075/
2
(
JA
XX),
but
in
response
EPA
received
no
data
from
commenters
supporting
assertions
that
these
side
effects
pose
significant
environmental
problems.)

Moreover,
UWAG's
contention
that
EPA
"
ignored"
these
potential
impacts
is
simply
untrue.
EPA
considered
each
of
these,
and
concluded
they
would
not
be
a
significant
problem,
particularly
for
new
facilities,
which
have
maximum
flexibility
in
design
and
location.
See,
e.
g.,
CR
068.100
at
1366­
70
(
JA
XX­
XX)
­
74
­
(
land
use
impacts
on
wetlands
can
be
avoided
by
not
building
in
wetlands
or
through
the
wetlands
permit
process
in
CWA
§
404
(
at
1367);
issues
concerning
the
aesthetics
of
and
reduced
visibility
from
vapor
plumes
can
be
addressed
using
newer
technology
and
land
area
buffers
(
at
1367);
similarly,
salt
deposition
problems
can
be
avoided
using
land
area
buffers
(
at
1368);
and
increased
energy
use
under
this
Rule
will
only
be
a
tiny
percentage
of
total
energy
use
(
at
1367­

68));
66
Fed.
Reg.
at
65,296/
3
(
JA
XX)
(
emissions
of
sulfer
dioxide,
nitrogen
oxides,
carbon
dioxide
and
lead
from
power
plants
will
increase
less
than
0.02%

annually
as
a
result
of
this
rule;
emissions
from
manufacturers
under
this
rule
not
projected
to
increase
at
all);
TDD
at
3­
4
(
JA
XX)
(
Table
3­
5
showing
energy
impacts
as
0.027%
of
new
generating
capacity
over
the
next
20
years),
at
3­
6
(
JA
XX)
(
Table
3­
7
showing
air
emissions
increases
of
0.02%).

Having
considered
these
impacts,
EPA
is
entitled
to
great
deference
in
deciding
what
weight
to
give
these
impacts
in
making
the
scientific
and
policy
judgments
that
the
Agency
made
in
establishing
this
Rule.
Weyerhaeuser
Co.,

590
F.
2d
at
1053
("[
T]
he
judicial
function
is
completed
when
we
have
assured
ourselves
that
EPA
has
expressly
considered
the
probable
environmental
impacts
of
its
regulations.");
BP
Exploration
&
Oil,
Inc.,
66
F.
3d
at
802
("
If
any
entity
has
the
ability
to
weigh
the
relative
impact
of
two
environmental
harms,
it
is
the
­
75
­
EPA.").
Moreover,
EPA's
Rule
should
be
upheld
because
the
agency
examined
the
relevant
information
and
articulated
a
reasonable
explanation
for
its
decision.

Motor
Vehicle
Mfr.
Ass'n.,
463
U.
S.
at
43.

4.
UWAG's
Other
Criticisms
of
EPA's
Track
I
Requirements
Should
Be
Rejected.

a.
UWAG
contends
(
UWAG
Br.
at
20­
21)
that
the
alternative
requirements
provision
in
40
C.
F.
R.
§
125.85
(
which
allows
facilities
to
request
less
stringent
alternative
requirements
under
certain
conditions)
is
an
inadequate
means
of
addressing
non­
impingement/
entrainment
impacts
because
(
1)
it
only
allows
consideration
of
air
quality,
water
resources
and
energy
markets
and
not
other
effects
such
as
land
use
and
aesthetics;
(
2)
only
allows
consideration
of
local
effects;
and
(
3)
only
allows
consideration
of
"
significant"
effects.
First,
EPA's
alternative
requirements
provision
only
provides
for
exceptions
based
on
"
local"

impacts
because
EPA
has
already
concluded
that
these
impacts
are
not
significant
on
a
national
level,
as
discussed
above.
CR
068.100
at
1366­
70
(
JA
XX­
XX).

Second,
with
respect
to
the
non­
inclusion
of
land
use
and
aesthetics
as
a
basis
for
alternative
requirements,
EPA
reasonably
concluded
that:
(
1)
land
use
impacts
will
not
be
significant
under
this
rule,
because
new
facilities
can
be
designed
and
located
to
avoid
them,
CR
068.100
at
1367
(
JA
XX);
and
(
2)
the
aesthetics
of
visible
vapor
plumes
from
cooling
towers
are
a
"
small
issue"
when
weighed
­
76
­
against
the
serious
environmental
impacts
of
once­
through
cooling.
CR
068.100
at
1367
(
JA
XX).
Third,
UWAG's
complaint
that
the
alternative
requirements
provision
demands
a
demonstration
of
"
significant"
impacts
is
puzzling.
UWAG
cannot
reasonably
contend
that
EPA
should
have
allowed
the
alternative
requirements
provision
to
be
used
where
there
are
"
insignificant"
impacts.

b.
Although
UWAG
does
not
actually
develop
an
argument
on
this
point,
in
several
places
in
its
brief
it
makes
statements
to
the
effect
that
EPA
failed
to
consider
the
costs
of
its
regulation,
failed
to
demonstrate
particular
benefits
that
would
be
achieved,
and
should
have
conducted
a
cost­
benefit
analysis.
UWAG
Br.
at
13,
16,
18­
19.
To
the
extent
that
UWAG
is
arguing
that
this
rule
should
be
remanded
on
any
of
these
grounds,
it
is
incorrect.
As
an
initial
point,
as
is
clear
from
the
discussion
above
with
respect
to
the
Environmental
Petitioners'
arguments,
UWAG
cannot
reasonably
contend
that
EPA
ignored
the
cost
of
this
Rule.
Indeed,
EPA
rejected
dry
cooling
technology
in
part
on
the
basis
of
cost.
See
Argument
I.
A
above.

At
the
same
time,
EPA
reasonably
interpreted
the
statute
to
mean
that
a
cost
benefit
analysis
was
not
required.
As
discussed
above
in
the
Statutory
Background
section,
EPA
interpreted
the
statutory
direction
to
adopt
"
best
technology
available"
(
in
light
of
the
statutory
language
applicable
to
"
best
46/
National
Wildlife
Fed'n,
286
F.
3d
at
570
(
Under
CWA
§
306,
the
EPA
Administrator
"
must
take
costs
into
consideration,
but
does
not
require
that
she
conduct
a
cost­
benefit
analysis.");
Chemical
Mfrs.
Ass'n,
870
F.
2d
at
262
(
in
establishing
"
best
available
technology"
standards,
EPA
"
must
inquire
into
the
initial
and
annual
costs
of
applying
the
technology
and
make
an
affirmative
determination
that
those
costs
can
be
reasonably
borne
by
the
industry.");
CPC
Int'l,
Inc.,
540
F.
2d
at
1341
("
There
is
no
language
in
[
33
U.
S.
C.
§
1316]
requiring
a
cost­
benefit
analysis.").

­
77
­
available
technology"
and
"
best
available
demonstrated
technology")
to
permit
EPA
to
establish
national
requirements
to
install
technology
that
was
"
technically
available,
economically
practicable,
and
where
EPA
has
also
considered
the
other
environmental
impacts
of
the
requirements,
such
as
energy
impacts."
CR
068.007
at
1182
(
JA
XX).
Moreover,
the
case
law
with
respect
to
the
"
best
available
technology"
requirement
in
CWA
§
306,
33
U.
S.
C.
§
1316,
makes
clear
that
no
cost­
benefit
analysis
is
required,
46/
and
the
same
should
be
true
for
the
very
similarly­
phrased
"
best
technology
available"
requirement
here.
CR
206.014
at
1888­
90
(
JA
XX­
XX).
Further,
the
legislative
history
of
CWA
§
316(
b)
states
that
the
"
best
technology
available"
phrase
is
"
intended
to
be
interpreted
to
mean
the
best
technology
available
commercially
at
an
economically
practicable
cost."

118
Cong.
Rec.
33,762
(
1972),
reprinted
in
1
Legislative
History
of
the
Water
Pollution
Control
Act
Amendments
of
1972,
93rd
Cong.,
1st
Sess.,
at
264
(
Comm.

Print
1973).
This
provides
further
support
for
EPA's
focus
on
determining
­
78
­
whether
the
technology
chosen
was
technically
available
and
economically
practicable,
rather
than
on
comparing
costs
with
benefits.

UWAG's
references
to
Executive
Order
12,866
(
UWAG
Br.
at
17
n.
10)
and
the
Unfunded
Mandates
Reform
Act
(
UWAG
Br.
at
19)
do
not
help
it
here.

Executive
Order
12,866
expressly
states
that
it
"
does
not
create
any
right
or
benefit,
substantive
or
procedural,
enforceable
at
law
or
equity
by
a
party
against
the
United
States,
it
agencies
or
instrumentalities,
its
officers
or
employees,
or
any
other
person."
Exec.
Order
No.
12,866,
§
10,
58
Fed.
Reg.
51,735,
51,744
(
Sept.

30,
1993).
With
respect
to
the
Unfunded
Mandates
Reform
Act
("
UMRA"),

UMRA
§
202(
a)
is
clear
that
its
requirements
(
including
a
cost­
benefit
analysis)

apply
to
a
regulation
only
if
the
cost
of
the
regulation
will
exceed
$
100
million
per
year.
2
U.
S.
C.
§
1532(
a).
EPA
concluded
that
the
cost
of
this
Rule
will
not
reach
the
statutory
threshold,
and
thus
that
the
UMRA
requirements
did
not
apply.
66
Fed.
Reg.
at
56,329/
1­
2
(
JA
XX).

Finally,
UWAG's
reliance
on
United
States
Steel
Corp.
v.
Train,
556
F.
2d
822,
850
(
7th
Cir.
1977),
is
misplaced.
UWAG
Bf.
at
18­
19.
That
decision
did
not
hold
that
EPA
was
required
to
do
a
cost­
benefit
analysis
to
support
CWA
§
316(
b)

regulations.
Instead,
that
court
held
only
that
an
argument
on
that
point
was
not
ripe
at
that
time,
and
the
court
assumed
that
EPA
would
conduct
a
"
limited
costbenefit
analysis"
when
the
time
came.
As
discussed
above,
EPA
has
interpreted
47/
On
a
separate
note,
UWAG
also
questions
EPA's
authority
to
require
flow
to
be
reduced
to
the
level
that
is
commensurate
with
a
closed
cycle
recirculating
cooling
system,
but
then
says
it
does
not
raise
that
issue
in
this
case.
UWAG
Br.
at
12
n.
7.
To
the
extent
that
the
Court
is
interested
in
this
issue,
EPA
fully
responded
to
this
authority
argument
in
the
administrative
record.
See,
e.
g.,
66
Fed.
Reg.
at
65,313/
2­
3
(
JA
XX);
CR
068.010
at
1196­
97
(
JA
XX­
XX).

­
79
­
its
obligation
with
respect
to
costs
under
CWA
§
316(
b)
as
(
1)
the
consideration
of
costs
in
a
manner
similar
to
the
consideration
of
costs
under
CWA
§
306
and
(
2)
the
determination
that
the
chosen
technology
is
"
economically
practicable"

(
meaning
that
it
can
be
reasonably
borne
by
the
affected
industries),
with
no
requirement
for
a
cost­
benefit
analysis.
65
Fed.
Reg.
at
49,094/
2
(
JA
XX).

Because
that
interpretation
is
reasonable,
it
should
be
upheld
by
this
Court.

Chevron,
467
U.
S.
at
843
&
n.
11;
Sutherland,
228
F.
3d
at
173
("
When
reviewing
an
agency
determination,
federal
courts
must
accord
substantial
deference
to
an
agency's
interpretation
of
the
statutes
it
is
charged
with
administering.")
47/

B.
EPA
Reasonably
Included
Additional
Design
And
Construction
Requirements
in
40
C.
F.
R.
§
125.84(
b)(
4)
and
(
5)
To
Further
Minimize
Impingement
and
Entrainment
in
Certain
Circumstances.

Even
where
a
facility
operates
a
closed­
cycle
cooling
system,
it
still
may
be
withdrawing
millions
of
gallons
of
water
a
day,
creating
a
risk
of
significant
impingement
and
entrainment
of
fish
and
other
aquatic
organisms.
To
address
this
risk,
EPA's
rule
requires
that
facilities
have
additional
design
and
construction
­
80
­
technologies
or
operational
measures
for
minimizing
impingement
and
entrainment
of
fish
and
other
aquatic
organisms
that
are
either
(
1)
threatened
or
endangered
or
otherwise
protected
species,
or
(
2)
migratory
and/
or
sport
or
commercial
species
of
concern
to
the
relevant
fisheries
managers.
66
Fed.
Reg.
at
65,340/
2­
3,
40
C.
F.
R.
§
§
125.84(
b)(
4)
and
(
b)(
5).
The
establishment
of
specific
requirements
for
a
specific
facility
is
left
to
the
individual
permitting
process.
66
Fed.
Reg.
at
65,275­
76
(
JA
XX­
XX).

UWAG
challenges
these
requirements
on
the
grounds
that
they
are
"
completely
undefined,"
inconsistent
with
the
goals
of
clarity,
consistency
and
reduced
regulatory
burden
and
unsupported
by
the
record.
UWAG
Br.
at
22­
30.

For
the
reasons
discussed
below,
UWAG's
contentions
are
incorrect.

These
requirements
are
not
"
completely
undefined,"
as
UWAG
contends.

UWAG
Br.
at
23­
26.
In
promulgating
this
rule,
EPA
discussed
the
types
of
measures
that
it
contemplated
could
be
used
to
meet
these
design
and
construction
requirements.
66
Fed.
Reg.
at
65,275/
3
(
JA
XX).
EPA
identified
(
1)
intake
screens,
such
as
fine
mesh
screens
and
aquatic
filter
barrier
systems,
that
exclude
smaller
organisms
from
entering
the
cooling
water
intake
structure;
(
2)
passive
intake
systems
such
as
wedgewire
screens,
perforated
pipes,
porous
dikes,
and
artificial
filter
beds,
which
also
exclude
organisms
from
entering
the
intake
­
81
­
structure;
(
3)
diversion
and/
or
avoidance
systems
that
guide
fish
away
from
the
intake
before
they
are
impinged
or
entrained;
and
(
4)
fish­
handling
systems
such
as
bypass
systems,
fish
buckets,
fish
baskets,
fish
troughs,
fish
elevators,
fish
pumps,
low
preassure
spray
wash
systems,
and
fish
sills,
that
either
divert
organisms
away
from
impingement
at
the
intake
structure,
or
collect
impinged
organisms
and
protect
them
from
further
injury
as
they
are
transferred
back
to
the
water.
66
Fed.
Reg.
at
65,275/
3
(
JA
XX).

Further,
EPA
explained
that
it
was
not
prescribing
particular
measures
because
the
various
design
and
construction
options
have
different
feasabilities
depending
on
site­
specific
factors
such
as
type
of
location,
intake
flow
rate,
speed
and
variability
of
currents,
extent
to
which
water
contains
debris
that
may
cause
clogging
and
the
like.
66
Fed.
Reg.
at
65,
275/
3
(
JA
XX);
CR
068.109
at
1388
(
JA
XX)
("[
A]
s
the
site­
specific
application
of
these
requirements
reflects,
it
is
not
feasible
to
assess
optimization
of
such
technologies
for
all
new
facilities
on
a
national
basis
due
to
the
numerous
technologies
that
exist
and
the
site­
specific
factors
that
affect
their
selection,
combination,
and
optimization.")

Similarly,
UWAG's
claim
that
there
is
no
standard
for
determining
"
when"

these
additional
design
and
construction
requirements
apply,
and
no
"
procedure"

for
learning
in
advance
whether
the
permitting
authority
will
impose
any
such
­
82
­
requirements
(
UWAG
Br.
at
24­
25)
misses
the
point.
These
requirements
are
applied
on
a
site­
specific
basis
as
a
result
of
communications
between
the
facility
and
the
permitting
authority
during
the
permit
proceeding.
66
Fed.
Reg.
at
65,276/
1
(
JA
XX).

Overall,
UWAG's
arguments
on
this
point
 
as
well
as
its
arguments
that
these
requirements
may
lead
to
inconsistent
decisions
by
permitting
authorities
(
UWAG
Br.
at
26­
28)
and
that
the
rule
contains
no
"
analysis"
or
"
guidance"
for
deciding
how
to
fulfill
these
requirements
(
UWAG
Br.
at
29)
 
amount
to
a
complaint
that
EPA
has
decided
to
take
a
site­
specific
approach
on
these
design
and
construction
requirements.
UWAG's
opposition
to
this
approach
here
is
inconsistent
with
its
repeated
insistence
that
a
site­
specific
approach
was
preferable.
UWAG
Br.
at
11
("
UWAG
and
other
commentors
urged
EPA
to
retain
and
refine
the
long­
established
site­
specific
approach
described
above
[
in
UWAG's
brief].");
Comments
of
the
Utility
Water
Act
Group
on
EPA's
Proposed
§
316(
b)
Rule
for
New
Facilities
and
ICR
No.
1973.01,
DCN
W­
00­
32,

Comment
1.68
(
Nov.
9,
2000),
at
40
(
JA
XX)
("[
S]
ince
state
authorities
and
fishery
experts
have
a
variety
of
different
values
to
protect,
some
of
which
may
be
in
conflict
with
others,
it
would,
again,
be
wildly
unrealistic
to
expect
­
83
­
`
consistency.'
`
Inconsistency'
may
merely
mean
that
different
states
have
balanced
competing
values
differently,
which
is
as
it
should
be.").

A
few
of
UWAG's
arguments
require
a
short
additional
response.

First,
UWAG
incorrectly
claims
that
EPA's
regulation
of
"
operational
measures"

is
beyond
the
Agency's
authority
because
CWA
§
316(
b)
is
only
concerned
with
"
technology."
UWAG
Br.
at
24.
Operational
measures
include
such
matters
as
maintenance
(
such
as
cleaning
or
rotating
screens
to
ensure
proper
operation),
and
temporary
shutdowns
or
flow
reductions
(
during,
for
example,
spawning
or
migration
events).
These
measures
are
reasonably
understood
to
be
part
of
EPA's
authority
to
regulate
"
technology"
because
the
common
meaning
of
"
technology"

includes
not
only
the
configuration
of
physical
structures
but
also
the
methods
by
which
they
are
operated.
Webster's
II
New
Riverside
University
Dictionary
(
1984),
at
1188
(
defining
technology
as
"
the
application
of
science
esp.
to
industrial
or
commercial
objectives"
and
"[
t]
he
whole
body
of
methods
and
materials
used
to
achieve
such
objectives").

Second,
with
respect
to
UWAG's
argument
that
EPA
did
not
adequately
consider
the
cost
of
the
design
and
construction
requirements
(
UWAG
Br.
at
29),

neither
UWAG
or
any
other
commentor
raised
this
issue
to
EPA
during
the
48/
United
States
v.
L.
A.
Tucker
Truck
Lines,
344
U.
S.
33,
37
(
1952)
("
courts
should
not
topple
over
administrative
decisions
unless
the
administrative
body
.
.
.
has
erred
against
objection
made
at
the
time
appropriate
under
its
practice").

49/
For
example,
EPA
estimated
that
the
capital
costs
of
traveling
screens
with
fish
handling
features
could
be
as
high
as
$
1,037,000.
EA
at
6­
5
(
Table
6­
2)
(
JA
XX).

­
84
­
adminstrative
process,
and
thus
UWAG
cannot
raise
it
now.
48/
Moreover,
contrary
to
UWAG's
claim
(
UWAG
Br.
at
29),
EPA
did
consider
the
cost
of
the
design
and
construction
requirements.
TDD
at
2­
3,
2­
26
to
2­
56
(
JA
XX,
XX­
XX).
EPA's
focus
on
wedgewire
screens
and
fish
return
systems
with
traveling
screens
(
which
UWAG
criticizes
at
29)
was
appropriate
because
the
costs
of
those
technologies
are
at
least
representative
and
in
some
cases
among
the
more
expensive
on
the
list
of
potential
design
and
construction
technologies.
CR
068.108
at
1386
(
JA
XX).
49/
Overall,
EPA
concluded
that
the
costs
of
this
Rule
would
be
"
economically
practicable,"
66
Fed.
Reg.
at
65,282/
1
(
JA
XX),
and
UWAG
has
not
shown
otherwise.

In
summary,
because
UWAG
has
not
demonstrated
how
the
additional
design
and
construction
requirements
are
unreasonable
or
beyond
EPA's
authority,
they
should
be
upheld.

C.
EPA
Reasonably
Chose
To
Set
An
Intake
Velocity
Limit
Based
on
"
Through­
Screen
Velocity"
And
To
Set
The
Limit
at
0.5
Feet
Per
Second.
50/
See,
e.
g.,
Technical
Evaluation
of
the
Utility
of
Intake
Velocity
as
an
Indicator
of
Potential
Adverse
Environmental
Impact
under
Clean
Water
Act
Section
316(
b)
("
Intake
Velocity
Technical
Evaluation")
Graph
of
Swim
Speed
Data,
DCN
2­
028A
(
JA
XX)
(
showing
that
majority
of
fish
species
can
swim
out
of
intake
flows
moving
at
0.5
feet
per
second,
but
that
more
species
would
be
unable
to
escape
as
the
intake
velocity
speed
is
increased).

­
85
­
A
key
factor
in
minimizing
the
impingement
and
entrainment
of
aquatic
organisms
is
reducing
the
velocity
at
which
water
is
drawn
into
the
cooling
water
intake
structure.
Both
the
data
in
the
record
and
common
sense
supports
the
conclusion
that
higher
intake
velocities
lead
to
higher
impingement
and
entrainment.
CR
014.018
at
131­
132
(
JA
XX­
XX).
50/

Notably,
UWAG
does
not
challenge
the
concept
of
intake
velocity
regulation.
Instead,
UWAG
argues
that
EPA
(
1)
should
have
chosen
a
different
method
of
measuring
intake
velocity,
(
2)
set
the
0.5
ft/
s
limit
without
adequate
information
and
at
a
standard
that
will
preclude
some
beneficial
technologies,
and
(
3)
based
the
limit
on
"
approach
velocity"
figures
but
set
the
standard
as
a
"
through­
screen
velocity,"
thus
adding
a
significant
measure
of
stringency
that
is
not
considered
in
EPA's
analysis.
UWAG
Br.
at
30­
34.
As
discussed
below,
both
EPA's
selection
of
the
measurement
method
and
the
setting
of
the
numerical
limit
were
reasonable
judgments
within
EPA's
scientific
and
technical
expertise,
and
should
be
upheld
by
this
Court.
51/
As
the
names
suggest,
"
through­
screen
velocity"
is
the
speed
of
the
water
flow
as
it
goes
through
the
screen
on
an
intake
structure,
which
is
where
impingement
occurs.
The
"
approach
velocity"
is
the
speed
of
the
water
flow
a
short
distance
in
front
of
the
screen,
as
it
"
approaches"
the
screen.

­
86
­
1.
EPA
Reasonably
Chose
to
Set
a
"
Through­
Screen
Velocity"
Standard
Rather
Than
an
"
Approach
Velocity"
Standard.

UWAG
argues
that
EPA
should
have
set
the
intake
velocity
standard
as
an
"
approach
velocity"
rather
than
a
"
through­
screen
velocity"
based
on
UWAG's
contentions
that
approach
velocity
is
more
important
than
through­
screen
velocity
(
UWAG
Br.
at
31)
and
that
most
studies
have
examined
approach
velocity.

UWAG
Br.
at
31­
32.51/
As
an
initial
point,
UWAG
provides
no
citations
in
support
of
these
contentions.
That
alone
is
a
sufficient
basis
for
this
Court
to
reject
UWAG's
argument
on
this
point.

Moreover,
even
taking
UWAG's
arguments
at
face
value,
UWAG
fails
to
demonstrate
that
EPA's
decision
was
arbitrary.
EPA
considered
the
options
of
approach
velocity
and
through­
screen
velocity,
and
chose
through­
screen
velocity
because
(
1)
many
recently
constructed
facilities
are
designed
to
meet
throughscreen
velocity
limits
based
on
readily
available
technologies,
and
(
2)

throughscreen
velocity
is
easier
to
measure
accurately
and
therefore
will
be
easier
to
implement
for
facilities
and
regulators.
CR
056.041
at
958
(
JA
XX).
While
52/
The
June
2000
version
of
this
document
in
the
record
(
and
thus
the
Joint
Appendix)
bears
the
date
of
a
preliminary
draft
(
April
10,
2000)
on
pages
2­
9,
because
the
person
making
the
revisions
neglected
to
change
the
header
when
the
document
was
revised.

­
87
­
UWAG
may
prefer
a
different
decision,
it
has
not
demonstrated
that
EPA's
decision
was
irrational.

2.
EPA's
Decision
to
Set
the
Intake
Velocity
Limit
at
0.5
ft/
s
Was
Supported
by
the
Record
and
Will
Not
Preclude
Appropriate
Technologies.

Contrary
to
UWAG's
argument
(
UWAG
Br.
at
30,
33­
34),
the
0.5
ft/
s
standard
was
supported
in
the
record
and
will
not
preclude
appropriate
technologies.
First,
EPA's
selection
of
the
0.5
ft/
s
standard
was
based
on
EPA's
analysis
of
the
available
data
and
studies,
which
supported
the
conclusion
that
a
0.5
ft/
s
standard
would
be
protective
with
a
reasonable
margin
of
safety.

CR
014.018
at
131
(
JA
XX);
Background
and
Justification
for
Using
a
Through­

Screen
Velocity
of
0.5
Foot
per
Second
as
a
Threshold
Criterion
Value
for
the
Section
316(
b)
Rulemaking
(
June
2000),
52/
DCN
#
1­
1054­
TC
(
JA
XX­
XX);

Intake
Velocity
Technical
Evaluation,
Graph
of
Swim
Speed
Data,
DCN
2­
028A
(
JA
XX)
(
showing
that
majority
of
fish
species
can
swim
faster
than
0.5
ft/
s).

Further,
EPA
concluded
that
this
standard
was
achievable
because
a
survey
of
facilities
built
in
the
past
15
years
demonstrated
that
the
standard
was
already
being
met
by
the
majority
of
recently
built
facilities.
66
Fed.
Reg.
at
28,864
(
JA
53/
UWAG
cites
to
similar
figures
(
see
UWAG
Br.
at
33,
noting
that
79%
of
recently
built
electric
generating
facilities
meet
the
0.5
ft/
s
standard)
and
argues
that
this
shows
that
the
remaining
facilites
"
cannot"
meet
the
standard.
UWAG's
point
is
incorrect,
because
these
figures
show
facilities
that
meet
the
0.5
ft/
s
standard
even
in
the
absence
of
any
requirement
to
do
so.
Thus,
these
figures
do
not
demonstrate
that
the
other
facilities
could
not
meet
the
standards,
but
only
that
they
currently
do
not
in
the
absence
of
any
regulation
requiring
compliance.
Morever,
the
question
for
this
rule
is
not
whether
some
existing
facilities
can
meet
the
standard,
but
whether
not­
yet­
built
facilities
could
be
designed
to
meet
the
standard.
That
a
large
majority
of
recently
built
facilities
meet
the
0.5
ft/
s
standard
even
in
the
absence
of
a
requirement
to
do
so
demonstrates
that
the
0.5
ft/
s
standard
is
reasonable
for
new
facilities.

54/
A
"
velocity
cap"
covers
an
intake
structure
that
otherwise
has
a
vertical
inflow
and
converts
the
flow
to
a
horizontal
flow.
See
diagram
in
Design
of
Water
Intake
Structures
for
Fish
Protection,
DCN
#
2­
032,
at
67,
Figure
IV­
20
(
JA
XX).

­
88
­
XX)
(
73%
of
the
manufacturing
facilities
and
62%
of
the
electricity
generating
facilities
built
in
the
last
15
years
meet
the
0.5
ft/
s
limitation.)
53/
Thus,
this
standard
is
reasonable
on
the
record
that
was
before
the
Agency.

Second,
in
response
to
UWAG's
claim
that
the
0.5
ft/
s
standard
will
preclude
certain
beneficial
technologies
such
as
a
velocity
cap
(
UWAG
Br.
at
33­

34),
54/
EPA
notes
that
the
velocity
cap
can
be
designed
to
meet
the
performance
standard
by
increasing
the
area
of
the
intake
opening.
Further,
velocity
caps
work
not
by
increasing
velocity
as
a
cue
to
fish
(
as
stated
in
UWAG
Br.
at
33)
but
by
converting
a
vertical
inflow
(
which
fish
do
not
avoid)
to
a
horizontal
inflow
(
which
fish
will
avoid).
See
Design
of
Water
Intake
Structures
for
Fish
Protection,
DCN
#
2­
032,
at
66­
67
(
JA
XX);
TDD,
Appendix
A
at
A­
31
(
JA
XX).
55/
UWAG
anticipates
this
point
and
argues
that,
if
an
alternative
"
Track
II"
technology
with
a
higher
than
0.5
ft/
s
intake
velocity
leads
to
results
comparable
to
what
could
be
achieved
under
Track
I,
then
Track
I
is
not
the
"
best
technology
available."
UWAG
Br.
at
33­
34.
UWAG's
argument
here
should
be
rejected.
If
the
"
Track
II"
alternative
is
comparable
(
which
is
all
that
Track
II
requires),
then
it
is
not
better.

UWAG
also
claims
that
some
technologies
listed
by
EPA
as
possible
ways
of
meeting
the
design
and
construction
requirement
(
under
40
C.
F.
R.
§
125.84(
b)(
4)
and
(
5))
cannot
meet
the
0.5
ft/
s
limit.
UWAG
Br.
at
34.
UWAG
does
not
identify
which
technologies
it
is
referring
to,
so
it
is
not
possible
to
specifically
respond.
As
a
general
matter,
however,
EPA
examined
the
feasibility
of
meeting
the
0.5
ft/
s
limit
and
determined
it
was
achievable
through
a
number
of
intake
technologies
that
are
currently
in
use.
66
Fed.
Reg.
at
65,278­
79
(
JA
XXXX

­
89
­
Thus,
velocity
caps
do
not
need
to
exceed
the
0.5
ft/
s
standard
to
work.
Finally,
if
a
particular
velocity
cap
with
an
intake
velocity
greater
than
0.5
ft/
s
can
minimize
impacts
comparable
to
those
that
meet
the
0.5
ft/
s
standard,
then
facilities
can
use
the
former
under
Track
II.
40
C.
F.
R.
§
125.84(
d)
(
facilities
can
avoid
the
0.5
ft/
s
limit
and
certain
other
Track
I
requirements
if
they
demonstrate
that
their
proposed
technologies
under
Track
II
will
achieve
comparable
reductions
to
what
they
would
achieve
under
Track
I);
CR
014.018
at
132
(
JA
XX).
55/

Third,
in
response
to
UWAG's
claim
that
basing
the
limit
on
approach
velocities
but
applying
it
to
the
through­
screen
velocities
adds
a
significant
measure
of
stringency
that
was
not
considered
in
EPA's
analysis
(
UWAG
Br.
at
32),
EPA
recognized
that
through­
screen
velocity
is
faster
than
approach
velocity.
­
90
­
See,
e.
g.,
CR
206.119
at
1963
(
JA
XX)
("
a
0.5
ft/
s
through
screen
velocity
will
effectively
reduce
approach
velocities
to
values
lower
than
0.5
ft/
s").
EPA,

however,
determined
that
the
0.5
ft/
s
limit
was
reasonable
in
light
of
the
readily
available
technologies
that
can
meet
the
limit,
the
practicality
of
implementing
the
design
through­
screen
velocity
limit,
and
the
fact
that
the
swim
speed
data
was
laboratory
data
that
did
not
include
all
fish
species
and
did
not
account
for
real
world
conditions
(
such
as
debris
covering
a
portion
of
the
intake,
which
causes
intake
velocity
through
the
unobstructed
portions
to
increase).
CR
014.018
at
131
(
JA
XX)
and
CR
206.119
at
1963
(
JA
XX).)

For
these
reasons,
EPA's
selection
of
the
0.5
ft/
s
velocity
limit
should
be
upheld.

D.
EPA's
Proportional
Flow
Limits
Are
Supported
by
The
Record
And
Were
Within
The
Scope
Of
EPA's
Reasonable
Scientific
And
Technical
Judgment.

Under
40
C.
F.
R.
§
125.84(
b)(
3),
new
facilities
with
cooling
water
intake
structures
must
limit
the
volume
of
their
intake
based
on
the
size
of
the
water
body
from
which
they
are
removing
the
water.
This
limitation
is
based
on
EPA's
judgment
that,
at
a
certain
point,
the
volume
of
water
withdrawn
by
a
facility
is
disproportionately
large
in
relation
to
the
size
of
the
water
body,
which
results
in
unwarranted
environmental
impacts.
66
Fed.
Reg.
at
65,277/
2­
3
(
JA
XX).
56/
"
Natural
thermal
stratification"
is
the
naturally­
occurring
division
of
a
waterbody
into
horizontal
layers
of
differing
densities
as
a
result
of
variations
in
temperature
at
different
depths.
66
Fed.
Reg.
at
65,339/
2
(
JA
XX).
"
Turnover"
occurs
when
the
horizontal
layers
within
the
waterbody
are
destabilized
and
become
more
fully
mixed.
Maintaining
the
natural
patterns
of
stratification
and
turnover
is
important
because
it
is
integral
to
the
seasonal
cycling
of
nutrients
and
oxygen
which
in
turn
is
important
for
spawning
and
survival
of
organisms.

­
91
­
For
intake
structures
on
freshwater
rivers
and
streams,
the
intake
flow
must
be
no
more
than
5%
of
the
annual
average
flow
of
the
river
or
stream.
40
C.
F.
R.

§
125.84(
b)(
3)(
i).
For
intake
structures
on
a
lake
or
reservoir,
the
intake
flow
must
be
at
a
level
that
will
not
disrupt
the
natural
thermal
stratification
or
turnover
pattern56/
of
the
water
body,
unless
the
relevant
fisheries
agency
determines
that
such
disruption
will
be
beneficial.
40
C.
F.
R.
§
125.84(
b)(
3)(
ii).
Finally,
for
estuaries
and
tidal
rivers,
the
intake
flow
must
be
no
more
than
1%
of
the
volume
of
water
in
the
area
under
the
influence
of
the
intake
structure.
40
C.
F.
R.
§
125.84(
b)(
3)(
iii).

As
discussed
below,
these
requirements
are
supported
by
the
record
and
are
within
the
scope
of
EPA's
reasonable
scientific
and
technical
judgment.

UWAG's
arguments
to
the
contrary
(
UWAG
Br.
at
35­
39)
are
incorrect.

1.
The
Proportional
Flow
Limits
For
Rivers
And
Estuaries
Are
Supported
By
The
Record
And
Are
Reasonable.
57/
As
a
initial
point,
EPA
disagrees
with
UWAG's
suggestion
that
Track
I's
requirements
of
both
closed­
cycle
cooling
and
the
proportional
flow
requirement
is
"
a
belt
and
suspenders
approach."
UWAG
Br.
at
36
n.
19.
The
volume
capacity
requirement
based
on
closed­
cycle
cooling
is
the
fundamental
method
of
minimizing
environmental
impact,
while
the
proportional
flow
limits
minimize
impacts
from
the
remaining
withdrawals
 
that
is,
the
water
that
is
still
withdrawn
by
a
facility
that
employs
a
recirculating
cooling
system.
Thus,
these
two
requirements
are
not
duplicative,
but
represent
two
separate
steps
toward
minimizing
the
environmental
impacts
of
cooling
water
intake
structures.

­
92
­
In
challenging
EPA's
5%
limit
for
rivers
and
1%
limit
for
estuaries,
UWAG
contends
that
(
1)
EPA
assumed
that
taking
5%
or
1%
of
the
water
from
these
water
bodies
would
equate
to
taking
5%
or
1%
of
the
eggs
and
larvae,
which
UWAG
claims
is
incorrect
because
eggs
and
larvae
are
not
necessarily
evenly
distributed
in
the
water,
UWAG
Br.
at
35­
36;
and
(
2)
the
limits
of
5%
and
1%
are
arbitrary
and
not
supported
by
the
record.
UWAG
Br.
at
36­
37.57/

First,
with
respect
to
UWAG's
argument
concerning
the
distribution
of
eggs
and
larvae,
UWAG
is
incorrect
in
stating
that
EPA
failed
to
recognize
that
eggs
and
larvae
are
not
always
evenly
distributed
in
the
water.
EPA
did
not
claim
that
there
was
always
a
one­
to­
one
correspondence
between
water
volume
and
quantity
of
eggs
and
larvae,
but
concluded
that
the
volume
of
water
withdrawn
is
"
closely
linked"
to
the
amount
of
eggs
and
larvae
entrained.
66
Fed.
Reg.
at
65,277/
2
(
JA
XX)
("
Entrainment
impacts
of
cooling
water
intake
structures
are
closely
linked
to
the
amount
of
water
passing
through
the
intake
structure,
because
­
93
­
the
eggs
and
larvae
of
some
aquatic
species
are
free­
floating
and
may
be
drawn
with
the
flow
of
cooling
water
into
an
intake
structure.")
Though
EPA
does
not
contend
that
the
withdrawal
of
any
given
percentage
of
the
water
in
a
river
or
estuary
will
always
equate
to
the
entrainment
of
that
exact
same
percentage
of
eggs
and
larvae,
EPA's
decision
to
use
percentage
of
water
volume
as
a
surrogate
for
percentage
of
eggs
and
larvae
was
a
reasonable
regulatory
approach.

Second,
EPA's
selection
of
the
5%
and
1%
figures
was
technology­
based:

EPA
determined
that
the
5%
and
1%
limits
were
already
being
achieved
by
the
majority
of
existing
facilities,
66
Fed.
Reg.
at
65,277/
1
(
JA
XX)
(
90%
of
existing
facilities
on
rivers
and
92%
of
existing
facilities
on
estuaries
meet
these
requirements),
and
thus
concluded
that
methods
for
meeting
these
limits
were
"
technically
available
and
economically
practicable
for
the
industry
as
a
whole."

66
Fed.
Reg.
at
65,277/
1­
2
and
65,301/
1
(
JA
XX,
XX);
CR
068.076
at
1305
(
JA
58/
To
determine
whether
this
requirement
would
prevent
new
facilities
from
finding
locations
to
build,
EPA
analyzed
the
impact
that
the
proportional
flow
requirement
would
have
on
the
availability
of
riverside
locations
for
facilities
with
intake
structures.
The
Agency
concluded
that
the
5%
limit
would
permit
the
location
of
intake
structures
on
tens
of
thousands
of
miles
of
rivers.
66
Fed.
Reg.
at
65,281/
1­
2
(
JA
XX)
(
over
131,000
miles
of
rivers
would
be
available
for
facilities
withdrawing
up
to
18
millions
of
gallons
per
day
("
MGD"),
over
53,000
river
miles
would
be
available
for
85
MGD
facilities
and
over
14,000
river
miles
would
be
available
for
700
MGD
facilities).
Thus,
UWAG
cannot
reasonably
argue
that
this
regulation
leaves
new
facilities
without
location
options.

59/
CR
068.103
at
1376
("
Recent
trends
in
the
electric
generating
industry
have
incorporated
more
advanced
technologies,
including
combined­
cycle
turbines
and
recirculating
cooling
systems,
which
are
more
energy
efficient
and
require
less
cooling
water").

­
94
­
XX).
58/
EPA
further
concluded
that
the
5%
and
1%
figures
would
be
protective.

66
Fed.
Reg.
at
65,277/
1­
2
and
65,301/
1
(
JA
XX,
XX).
In
particular,
EPA
chose
to
set
these
figures
conservatively
to
account
for
the
cumulative
impact
where
multiple
intakes
withdraw
water
from
the
same
water
body.
66
Fed.
Reg.
at
65,277/
1
and
65,301/
2
(
JA
XX,
XX).
Given
that
90%
or
more
of
existing
facilities
were
meeting
this
requirement
even
in
the
absence
of
any
requirement
to
do
so,
EPA's
decision
to
set
these
standards
for
new
facilities
(
which
have
more
flexibility
as
to
location
and
design,
and
can
adopt
newer
technologies
that
use
less
cooling
water
that
existing
facilities
59/)
should
be
upheld
as
reasonable.
­
95
­
2.
EPA's
Protection
Of
The
Natural
Thermal
Stratification
In
Lakes
and
Reservoirs
Is
Reasonable.

Under
EPA's
rule,
the
intake
flow
into
a
facility
on
a
lake
or
reservoir
must
be
at
a
level
that
will
not
disrupt
the
natural
thermal
stratification
or
turnover
pattern
of
the
water
body,
unless
the
relevant
fisheries
agency
determines
that
such
disruption
will
be
beneficial.
40
C.
F.
R.
§
125.84(
b)(
3)(
ii).
This
requirement
is
appropriate
because
the
natural
thermal
stratification
in
lakes
and
reservoirs
is
typically
important
to
maintain
the
physical
and
chemical
conditions
in
these
waterbodies
that
support
essential
life
cycles,
such
as
reproduction
and
growth
of
plants
and
animals
that
make
up
the
food
chain,
and
decomposition.
CR
068.078
at
1310­
11
(
JA
XX)
.
UWAG
argues
that
the
protection
of
thermal
stratification
is
irrational
because
(
1)
"
any"
withdrawal
of
water
will
disrupt
stratification
"
to
some
extent"
and
thus
this
requirement
effectively
"
zones
out"
new
facilities
on
lakes
and
reservoirs;
and
(
2)
some
destratification
is
beneficial.
UWAG
Br.
at
38.

First,
UWAG's
contention
that
this
requirement
will
"
zone
out"
all
new
facilities
on
lakes
and
reservoirs
(
UWAG
Br.
at
38)
is
incorrect.
In
promulgating
this
requirement,
EPA
noted
that
"
most
existing
facilities
meet
the
proportional
flow
requirement
for
lakes
and
reservoirs."
66
Fed.
Reg.
at
65,
277/
1
(
JA
XX).

Because
most
existing
facilities
meet
the
standard
even
without
a
legal
requirement
to
do
so,
it
is
reasonable
for
EPA
to
conclude
that
new
facilities
 
60/
On
this
point,
EPA
also
notes
that
facilities
in
many
arid
parts
of
the
country
do
not
currently
withdraw
their
cooling
water
from
waters
that
are
governed
by
the
Clean
Water
Act,
and
instead
get
their
cooling
water
from
sources
such
as
groundwater,
municipal
water
suppliers,
and
treated
wastewater.
EPA
found
that
80%
of
the
existing
facilities
in
Arizona,
California,
Nevada,
New
Mexico,
Oklahoma
and
Texas
do
not
withdraw
water
from
Clean
Water
Act­
regulated
waters
in
their
operations.
EPA's
rule
would
not
affect
the
location
or
design
of
new
facilities
that
do
not
use
Clean
Water
Act­
regulated
waters.
66
Fed.
Reg.
at
65,281/
1­
2
(
JA
XX).

­
96
­
which
have
greater
flexibility
in
design
and
location
that
existing
facilities
 
will
be
able
to
as
well.
66
Fed.
Reg.
at
65,277/
1
(
JA
XX).
60/

Second,
UWAG's
argument
concerning
the
beneficial
effects
of
destratification
(
UWAG
Br.
at
38)
ignores
the
fact
that
the
stratification
requirement
in
40
C.
F.
R.
§
125.84(
b)(
3)(
ii)
expressly
provides
an
exception
for
situations
where
the
relevant
fisheries
management
agency
determines
that
destratification
is
beneficial.
It
was
reasonable
for
EPA
to
design
a
general
rule
that
is
appropriate
to
the
most
common
situations,
while
allowing
case­
by­
case
exceptions
where
local
conditions
warrants.

3.
EPA
Considered
How
Facilities
Would
Meet
The
Proportional
Flow
Limitation
And
The
Costs
Of
Doing
So.

UWAG
complains
that
EPA
did
not
identify
"
technologies"
that
will
allow
facilities
to
meet
the
proportional
flow
limitations
in
40
C.
F.
R.
§
125.84(
b)(
3).

UWAG
Br.
at
38­
39.
UWAG's
argument
here
is
off
base.
EPA
considered
how
new
facilities
could
meet
this
requirement,
and
found
that
facilities
could
do
so
by
­
97
­
"
locating
[
the
facility]
in
an
appropriate
location,
or
obtaining
water
from
groundwater,
grey
water
[
treated
wastewater],
or
municipal
sources."
CR
068.103
at
1376
(
JA
XX).
The
fact
that
these
options
are
not
design
technologies
is
not
telling.
CWA
§
316(
b)
expressly
includes
"
location"
as
one
of
the
ways
in
which
adverse
environmental
impact
may
be
minimized.
Further,
facilities
always
have
the
option
of
choosing
a
water
source
other
than
Clean
Water
Act­
regulated
waters
and
thereby
avoiding
this
rule
entirely.

UWAG
further
claims
(
UWAG
Br.
at
39)
that
EPA
did
not
consider
a
number
of
factors
such
as
access
to
transmission
lines
and
fuel,
cumulative
impacts
on
air
and
water,
and
others.
First,
UWAG
in
its
brief
does
not
even
attempt
to
demonstrate
how
EPA's
Rule
actually
(
as
opposed
to
potentially)
affects
these
concerns.
Second,
EPA
did
in
fact
consider
and
respond
to
comments
on
these
issues
during
the
administrative
process.
See,
e.
g.,
CR
204.003
at
1844
(
JA
XX)

(
transmission
lines
and
fuel
supply);
CR
068.100
at
1368
(
JA
XX)
("
EPA
has
analyzed
the
increased
air
emissions
expected
as
a
result
of
the
final
rule
.
.
.
.

EPA's
conclusion
is
that
the
expected
air
emissions
increases
due
to
this
rule
are
small").
See
also
66
Fed.
Reg.
at
65,296/
3
(
JA
XX)
(
emissions
of
sulfer
dioxide,

nitrogen
oxides,
carbon
dioxide
and
lead
from
power
plants
will
increase
less
than
­
98
­
0.02%
annually
as
a
result
of
this
rule;
emissions
from
manufacturers
under
this
rule
not
projected
to
increase
at
all.)

Further,
as
noted
above,
90%
of
existing
facilities
on
rivers
and
92%
of
existing
facilities
on
estuaries
are
in
locations
that
allow
them
to
meet
these
requirements,
even
without
any
obligation
to
do
so.
66
Fed.
Reg.
at
65,277/
1
(
JA
XX).
Moreover,
EPA
again
notes
that
sufficient
flow
to
meet
the
proportional
flow
requirement
is
available
along
tens
of
thousands
of
miles
of
rivers
and
other
sources
of
water
besides
Clean
Water
Act­
regulated
waterbodies
are
available
to
be
used
as
cooling
water.
66
Fed.
Reg.
at
65,281/
1­
2
(
JA
XX).
Thus,
the
availability
of
numerous
locations
that
will
allow
a
facility
to
meet
the
proportional
flow
requirement
offer
sufficient
flexibility
to
accommodate
the
concerns
listed
by
UWAG.

Finally,
with
respect
to
UWAG's
one­
sentence
argument
that
EPA
did
not
adequately
consider
cost
(
UWAG
Br.
at
39),
neither
UWAG
nor
any
other
commentor
raised
this
issue
during
the
administrative
process
and
so
may
not
raise
it
here.
L.
A.
Tucker
Truck
Lines,
344
U.
S.
at
37.
In
any
event,
EPA
believes
that
the
costs
of
the
proportional
flow
requirement
will
not
pose
an
unbearable
economic
burden
because
the
majority
of
existing
facilities
meet
the
requirement
now.
66
Fed.
Reg.
at
65,
277/
1
(
JA
XX)
(
90%
of
existing
facilities
on
freshwater
­
99
­
rivers
and
92%
of
existing
facilities
in
estuaries).
Moreover,
for
any
facility
that
can
demonstrate
that
this
requirement
will
impose
disproportionate
costs,
it
may
seek
to
be
governed
by
less
stringent
requirements
under
40
C.
F.
R.
§
125.85.

E.
The
Provision
Related
To
State
Law
Requirements
In
40
C.
F.
R.
§
125.84(
e)
Is
Authorized
by
the
Clean
Water
Act
In
40
C.
F.
R.
§
125.84(
e),
EPA
placed
language
in
the
rule
recognizing
that
facilities
must
comply
with
more
stringent
requirements
than
required
under
EPA's
regulations
where
the
permitting
authority
deems
that
meeting
those
more
stringent
requirements
is
reasonably
necessary
to
comply
with
state
law.
UWAG
argues
that
this
provision
is
improper
because
it
is
not
authorized
by
CWA
§
316(
b).
UWAG
Br.
at
39­
42
UWAG's
argument
is
fundamentally
flawed,
because
EPA
did
not
base
this
provision
on
CWA
§
316(
b).
40
C.
F.
R.
§
125.84(
e)
is
founded
on
the
statutory
provisions
relating
to
state
law
and
authority
in
CWA
§
§
401(
d)
and
510,
33
U.
S.
C.
§
§
1341(
d)
and
1370,
and
is
consistent
with
the
goals
of
the
CWA,
as
identified
in
CWA
§
101.
33
U.
S.
C.
§
1251(
a),
(
b).
See
EPA's
full
discussion
of
these
provisions
in
66
Fed.
Reg.
at
65,277­
78
(
JA
XX­
XX).
By
including
40
C.
F.
R.
§
125.84(
e)
in
this
rule,
EPA
is
not
attempting
to
expand
the
scope
of
CWA
§
316(
b),
nor
does
this
provision
impose
any
specific
requirements;
EPA
is
simply
placing
in
the
regulations,
as
a
reminder
to
permitting
authorities,
a
provision
­
100
­
recognizing
the
authority
preserved
to
states
under
these
other
statutory
provisions.

CR
068.316
at
1502
(
JA
XX)
("
EPA's
approach
in
the
final
rule
to
allowing
the
permit
authority
to
implement
any
additional
requirement
of
state
law
is
a
simple
recognition
of
section
510
of
the
CWA.").

Further,
EPA
does
not
rest
its
case
"
mainly
on
section
401"
of
the
Clean
Water
Act,
as
UWAG
states.
UWAG
Br.
at
41.
EPA
relies
primarily
on
CWA
§
510,
33
U.
S.
C.
§
1370,
which
recognizes
that
the
Clean
Water
Act
does
not
preempt
state
authority
to
regulate
more
stringently.
CWA
§
510
is
linked
to
CWA
§
401(
d),
33
U.
S.
C.
§
1341(
d),
in
that
where
EPA
issues
a
permit,
the
permit
must
include
provisions
necessary
to
comply
with
state
law
in
accordance
with
40
C.
F.
R.
§
§
124.53(
d)
and
(
e).
Indeed,
UWAG
itself
states
that
CWA
§
401,
33
U.
S.
C.
§
1341,
"
authorizes
states
to
impose
requirements
of
state
law
as
conditions
in
federal
permits."
UWAG
Br.
at
41.
This
is
all
that
40
C.
F.
R.
§
125.84(
e)
does.

UWAG
further
states
that
CWA
§
510
"
reserves
certain
powers
to
the
states"

(
which
is
correct),
but
then
argues
that
it
does
not
give
EPA
authority
to
"
set
federal
requirements,
and
particularly
not
to
add
requirements
to
316(
b)."
UWAG
Br.
at
41.
In
this
Rule,
however,
EPA
is
not
adding
requirements
to
CWA
§
316(
b).
The
Rule
simply
reflects
in
its
text
the
statutory
authority
reserved
to
the
states
under
CWA
§
§
401(
d)
and
510,
by
requiring
the
facility
to
comply
with
any
61/
In
response
to
UWAG's
statement
that
it
is
not
clear
why
EPA's
CWA
§
401
regulations
do
not
"
fill
the
bill"
(
UWAG
Br.
at
41),
EPA
included
40
C.
F.
R.
§
125.84(
e)
to
assist
the
permit
writer
and
public
by
noting
that
there
may
be
applicable
state
laws
relating
to
cooling
water
intake
structures.
Moreover,
in
the
45
states
where
the
state
is
the
permit
authority,
the
requirement
for
a
state
certification
under
CWA
§
401(
a)(
1)
does
not
apply,
so
the
inclusion
of
this
provision
reminds
and/
or
informs
state
permit
writers
of
the
possibility
of
applicable
state
requirements
as
recognized
in
CWA
§
510.

­
101
­
state
law
provision
that
is
applicable
to
cooling
water
intake
structures
as
part
of
the
NPDES
permit.
40
C.
F.
R.
§
125.84(
e).
Where
the
state
is
the
permitting
authority
(
which
is
the
case
in
45
states),
the
permitting
authority
does
this
as
a
matter
of
state
law.
Where
EPA
issues
the
permit,
CWA
§
401(
d)
authorizes
states
to
impose
requirements
of
state
law
as
conditions
in
federal
permits.
33
U.
S.
C.
§
1341(
d).
See
P.
U.
D.
No.
1
v.
Washington
Dep't
of
Ecology,

511
U.
S.
700,
705
(
1994)
(
discussing
CWA
§
401).
61/

UWAG's
other
arguments
on
this
point
are
simply
wrong.
First,
whether
"
a
single
state
has
adopted
water
quality
standards
for
entrainment
or
impingement"

or
whether
"
any
waterbody
.
.
.
is
[
currently]
designated
as
impaired
due
to
entrainment
or
impingement"
(
UWAG
Br.
at
40)
are
both
irrelevant;
states
may
adopt
such
standards
or
make
such
a
designation
in
the
future.
Moreover,

recognizing
the
possibility
of
future
state
action
is
not
"
authorizing
permit
writers
to
interpret
in­
stream
water
quality
standards
to
require
additional
limits
on
intake
structures"
(
UWAG
Br.
at
40).
That
authority
was
already
preserved
to
the
States
­
102
­
by
Congress
in
CWA
§
§
401(
d)
and
510,
33
U.
S.
C.
§
§
1341(
d)
and
1370.
Second,

UWAG's
claim
that
40
C.
F.
R.
§
125.84(
e)
will
"
require
states
to
create
new
requirements
for
state­
issued
NPDES
permits"
(
UWAG
Br.
at
42)
is
incorrect.

This
provision
does
not
require
that
states
create
new,
more
stringent
requirements;

it
only
recognizes
the
fact
that
facilities
must
comply
with
any
such
requirements
that
states
choose
to
adopt.

Finally,
40
C.
F.
R.
§
125.84(
e)
will
not
place
future
intake
requirements
beyond
judicial
review
(
as
claimed
in
UWAG
Br.
at
42).
NPDES
permits
are
subject
to
judicial
review
either
(
1)
under
state
procedures
(
for
state­
issued
permits),
see
40
C.
F.
R.
§
123.30
(
requiring
states
that
administer
the
NPDES
program
to
provide
an
opportunity
for
judicial
review
of
permit
decisions),
or
(
2)
following
an
administrative
appeal
within
EPA
under
40
C.
F.
R.
§
124.19,
after
which
a
party
may
obtain
review
in
federal
court
under
33
U.
S.
C.
§
1369(
b)
(
for
EPA­
issued
permits).
Thus,
while
future
intake
requirements
under
40
C.
F.
R.

§
125.84(
e)
will
not
be
subject
to
review
in
this
case,
judicial
review
will
be
available.

For
all
of
these
reasons,
this
Court
should
uphold
40
C.
F.
R.
§
125.84(
e).

III.
MISC'S
PETITION
SHOULD
BE
DENIED.
­
103
­
The
Manufacturers
Intake
Structure
Coalition
("
MISC"),
representing
facilities
that
use
cooling
water
in
the
process
of
manufacturing
goods,
challenges
three
provisions:

°
The
provision
requiring
that
"
below
threshold"
intake
structures
(
those
that
withdraw
less
than
2
million
gallons
per
day
("
MGD")
or
where
less
than
25%
of
the
withdrawn
water
is
used
for
cooling
purposes,
and
thus
are
not
regulated
under
the
Track
I/
Track
II
requirements)
must
meet
requirements
determined
"
on
a
case­
bycase
best
professional
judgment
(
BPJ)
basis,"
40
C.
F.
R.
§
125.80(
c);

°
The
provision
that
requires
permitting
agencies
to
review
the
permits
before
reissuance
to
determine
whether
additional
or
different
requirements
are
needed
to
minimize
impingement
and
entrainment,
40
C.
F.
R.
§
125.89(
b)(
1)(
i);
and
°
Certain
provisions
stating
that
more
stringent
requirements
might
be
necessary
under
state
law.
40
C.
F.
R.
§
125.84(
e).
MISC
Br.
at
3­
5.

MISC
challenges
these
provisions
on
the
grounds
that
(
1)
they
are
beyond
EPA's
authority
under
the
statute,
(
2)
they
were
adopted
without
adequate
notice
and
comment,
and
(
3)
they
are
an
unexplained
departure
from
prior
regulations.
Each
of
MISC's
arguments
should
be
rejected,
for
the
reasons
discussed
below.

A.
The
Three
Provisions
Challenged
by
MISC
Are
Within
EPA's
Authority.

MISC
argues
that
three
provisions
are
beyond
EPA's
authority,
because
they
go
beyond
the
"
best
technology
available"
requirement
set
forth
in
CWA
§
316(
b).
MISC
Br.
at
5­
8.
MISC
is
incorrect.
­
104
­
First,
with
respect
to
the
smaller
"
below
threshold"
facilities
being
subject
to
case­
by­
case
requirements
under
40
C.
F.
R.
§
125.80(
c)
,
EPA
reasonably
concluded
that
these
facilities
are
best
addressed
on
an
individual
basis
rather
than
by
attempting
to
fashion
a
national
rule
for
all
such
facilities.
CR
053.017
at
874
(
JA
XX)
(
provision
allows
"
a
certain
degree
of
flexibility
for
a
permit
writer
to
consider
available
technologies
and
unique
factors
posed
by
new
facilities
that
are
below
the
threshold");
CR
026.009
at
296
(
JA
XX)
(
smaller
facilities
"
may
face
issues
of
economic
affordability
and
are
therefore
more
appropriately
addressed
on
a
case­
by­
case
basis
using
[
best
professional
judgment]");
CR
028.006
at
374
(
JA
XX)
(
same).
Contrary
to
MISC's
contention,
the
case­
by­
case
provision
for
smaller
facilities
does
not
require
those
facilities
to
go
beyond
the
"
best
technology
available."
This
provision
simply
recognizes
that
determining
the
"
best
technology
available"
for
these
smaller
facilities
is
most
appropriately
done
on
a
case­
by­
case
basis
using
the
best
professional
judgment
of
the
permitting
authority
that
is
looking
at
the
specific
facility
being
permitted.

Second,
with
respect
to
the
provision
in
40
C.
F.
R.
§
125.89(
b)(
1)(
i)

requiring
review
at
time
of
permit
reissuance
(
MISC
Br.
at
7),
EPA
concluded
that
this
provision
is
appropriate
to
ensure
that
facilities
continue
to
implement
"
best
technology
available."
Under
this
provision,
permitting
authorities
will
review
the
­
105
­
performance
of
the
technologies
at
the
facility
and
the
current
conditions
in
the
waterbody,
and
determine
if
additional
or
different
design
and
construction
technologies
are
needed
to
meet
the
requirements
in
40
C.
F.
R.
§
125.84.

CR
068.066
at
1289
(
JA
XX).
This
provision
is
consistent
with
the
statute,
which
requires
all
permits
to
require
intake
structures
to
reflect
the
best
technology
available
for
minimizing
adverse
environmental
impacts.
33
U.
S.
C.
§
1316(
b).

There
is
no
language
in
CWA
§
316(
b)
that
requires
EPA
to
provide
a
"
grandfather"
period
for
permittees.
By
contrast,
CWA
§
306(
c),
33
U.
S.
C.
§
1316(
c),
expressly
provides
that
any
facility
that
is
constructed
to
meet
existing
standards
will
be
grandfathered
for
10
years.
The
absence
of
any
such
express
language
in
CWA
§
316(
b)
demonstrates
that
Congress
did
not
intend
to
require
EPA
to
provide
grandfather
protection.
In
sum,
EPA
was
not
required
to
establish
a
"
grandfather"
rule
for
facilities
being
repermitted
and
reasonably
decided
to
require
a
review
at
the
time
of
permit
reissuance.
This
is
entirely
consistent
with
the
language
and
purpose
of
CWA
§
316(
b)
and
should
be
upheld.

CR
068.155
at
1468
(
JA
XX)
("
EPA
has
chosen
not
to
include
a
10­
year
grace
period
after
implementation
of
controls
because
EPA
believes
that
permit
authorities
(
states
and
territories)
should
determine
when
and
how
to
reissue
permits
under
Section
316(
b).").
­
106
­
Third,
with
respect
to
the
"
state
law"
provision
in
40
C.
F.
R.
§
125.84(
e)

(
MISC
Br.
at
8),
EPA's
authority
for
this
provision
is
discussed
above
in
Section
II.
E
above,
which
addresses
the
argument
on
this
provision
by
UWAG.

For
these
reasons,
this
Court
should
reject
MISC's
argument
that
these
provisions
are
beyond
EPA's
authority.

B.
EPA
Provided
Adequate
Notice
and
Opportunity
For
Comment
On
The
Three
Provisions
Challenged
by
MISC.

MISC
argues
that
EPA
failed
to
provide
opportunity
for
public
comment
on
the
three
challenged
provisions.
MISC
Br.
at
9­
11.
In
considering
this
issue,
it
is
important
to
remember
that
a
final
rule
is
not
required
to
be
identical
to
the
proposed
rule;
notice
is
adequate
where
it
would
"
fairly
apprise
interested
persons
of
the
subjects
and
issues"
of
the
rulemaking.
National
Black
Media
Coalition
v.

F.
C.
C.,
791
F.
2d
1016,
1022
(
2d
Cir.
1986).
Here,
that
test
was
satisfied
and
MISC's
notice
and
comment
argument
should
be
rejected.

First,
with
respect
to
the
smaller
"
below
threshold"
facilities
being
subject
to
case­
by­
case
requirements
under
40
C.
F.
R.
§
125.80(
c)
,
EPA
during
the
administrative
process
requested
comments
on
two
alternatives
for
addressing
facilities
using
smaller
amounts
of
cooling
water,
one
of
which
was
to
implement
CWA
§
316(
b)
on
a
case­
by­
case
basis
for
such
facilities.
66
Fed.
Reg.
at
28,854/
2
(
JA
XX)
(
EPA
seeks
comment
on
option
in
which
"[
n]
ew
facility
intake
structures
62/
EPA
also
notes
that
other
commentors
 
including
Petitioner
UWAG
 
submitted
comments
on
the
issue
of
whether
facilities
below
a
certain
threshold
should
face
regulation
on
a
case­
by­
case,
best
professional
judgment
basis,
which
further
demonstrates
that
this
issue
was
sufficiently
raised
to
allow
comment.
CR
524.008
at
2429
(
JA
XX).

­
107
­
not
subject
to
this
rule
because
of
the
amount
of
cooling
water
they
use
may
be
subject
to
requirements
established
by
permit
authorities
under
the
CWA
section
316(
b)
on
a
case­
by­
case
basis.").
Then,
in
the
final
rule,
EPA
implemented
this
case­
by­
case
option,
stating
"[
n]
ew
facilities
that
do
not
meet
the
threshold
requirements
regarding
amount
of
water
withdrawn
for
cooling
water
purposes
in
[
40
C.
F.
R.]
§
125.81(
a)
must
meet
requirements
determined
on
a
case­
by­
case,
best
professional
judgment
(
BPJ)
basis."
40
C.
F.
R.
§
125.80(
c).
By
identifying
two
options
and
asking
for
comments
on
them,
and
then
implementing
one
of
the
two
noticed
options,
EPA
fairly
apprized
interested
persons
of
the
subjects
and
issues
of
the
rulemaking.
62/

Second,
with
respect
to
the
"
review
at
time
of
permit
reissuance"
provision
in
40
C.
F.
R.
§
125.89(
b)(
1)(
i)
(
MISC
Br.
at
10),
EPA
gave
notice
in
the
proposed
rule
that
the
Agency
was
planning
to
require
a
review
of
the
design
and
construction
technologies
at
the
time
of
permit
reissuance.
EPA
stated
in
the
proposed
rule
preamble
that
the
CWA
§
316(
b)
requirements
must
be
implemented
at
reissuance,
65
Fed.
Reg.
at
49,101/
1
(
JA
XX)
("
The
requirements
proposed
[
in
63/
"
The
Director"
refers
to
the
relevant
permitting
authority,
which
is
either
the
director
of
the
state
authority
(
where
the
permits
are
issued
by
a
state)
or
the
EPA
Regional
Administrator
(
where
the
permits
are
issued
by
EPA).
See
40
C.
F.
R.
§
§
122.2,
124.2
(
these
definitions
apply
to
Part
125
under
40
C.
F.
R.
§
125.2).

64/
MISC
attempts
to
make
much
of
the
slightly
different
phrasing,
arguing
that
the
phrase
"
changes
in
facility
operations
or
physical
and
biological
attributes
of
the
source
water
body"
(
as
it
was
phrased
in
the
proposed
rule,
65
Fed.
Reg.
at
49,121/
3
(
JA
XX)
(
proposed
40
C.
F.
R.
§
125.89(
b))
was
changed
to
a
review
of
"
the
performance
of
the
technologies
implemented"
(
as
it
was
phrased
in
the
final
rule,
66
Fed.
Reg.
at
65,344/
3
(
JA
XX)
(
40
C.
F.
R.
§
125.89(
b)(
1)(
i))
and
that
this
change
in
phrasing
precluded
MISC
from
having
a
meaningful
opportunity
to
comment.
MISC
Br.
at
10.
This
minor
rephrasing,
however,
was
not
significant.
(
continued...)

­
108
­
this
rule]
must
be
implemented
upon
permit
issuance
and
reissuance.").
The
preamble
also
said
that
such
review
would
require
"
the
review
and
approval
or
disapproval
of
a
permit
applicant's
plan
for
installation
of
additional
design
and
construction
technologies
to
maximize
the
survival
of
impinged
fish
and
minimize
entrainment
of
eggs
and
larvae."
65
Fed.
Reg.
at
49,101/
1
(
JA
XX).
See
also
proposed
rule
language
at
65
Fed.
Reg.
at
49,121/
3
(
proposed
40
C.
F.
R.
§
125.89(
b)).
In
the
final
rule,
EPA
implemented
this
same
"
review
at
reissuance"

requirement,
though
with
slightly
different
phrasing:
"
Under
subsequent
permits,

the
Director[
63/]
must
review
the
performance
of
the
technologies
implemented
and
require
additional
or
different
design
and
construction
technologies,
if
needed
to
minimize
impingement
mortality
and
entrainment
of
all
life
stages
of
fish
and
shellfish."
66
Fed.
Reg.
at
65,344/
3
(
JA
XX).
64/
64/(...
continued)
The
central
concept
in
the
final
rule
was
the
same
as
in
the
proposed
rule:
permitting
authorities
would
review
how
well
the
installed
technologies
were
addressing
the
specific
conditions
at
the
facility
at
the
time
of
permit
renewal
to
determine
if
different
technologies
were
needed
to
meet
the
CWA
§
316(
b)
requirements
of
minimizing
impingement
and
entrainment.
MISC
cannot
reasonably
argue
that
this
rephrasing
demonstrates
that
it
was
not
fairly
apprized
of
the
substance
and
issues
of
the
rulemaking.

­
109
­
Third,
with
respect
to
the
"
state
law"
provision
in
40
C.
F.
R.
§
125.84(
e),
the
final
rule
is
not
"
dramatically
broader"
than
the
proposed
rule,
as
MISC
contends.

MISC
Br.
at
10­
11.
The
error
in
MISC's
argument
on
this
point
is
to
only
look
at
a
comparison
of
40
C.
F.
R.
§
125.84(
e)
in
the
final
rule
with
40
C.
F.
R.
§
125.84(
g)
in
the
proposed
rule
(
65
Fed.
Reg.
at
49,119/
1
(
JA
XX)).
When
one
looks
at
other
parts
of
the
proposed
rule,
one
can
see
that
the
final
language
in
40
C.
F.
R.

§
125.84(
e)
is
consistent
with
the
proposed
rule.
In
the
proposed
rule,
in
addition
to
proposed
40
C.
F.
R.
§
125.84(
g)
(
which
is
what
MISC
looks
at),
EPA
also
proposed
40
C.
F.
R.
§
125.80(
c)
(
65
Fed.
Reg.
at
49,115/
3­
116/
1
(
JA
XX)),
stating:

Nothing
in
this
subpart
shall
be
construed
to
preclude
or
deny
the
right
of
any
State
or
political
subdivision
of
a
State
or
any
interstate
agency
under
[
CWA
§
510]
to
adopt
or
enforce
any
requirement
with
respect
to
control
or
abatement
of
pollution
that
is
more
stringent
that
those
required
by
federal
law.

This
language
parallels
the
language
of
CWA
§
510,
33
U.
S.
C.
§
1370,
which
reserves
the
right
of
states
to
adopt
and
enforce
requirements
that
are
more
stringent
than
federal
law.
By
proposing
this
language
in
40
C.
F.
R.
§
125.80(
c),
65/
Indeed,
rather
than
broadening
the
rule
in
the
final
language,
EPA
actually
narrowed
the
rule
in
an
important
respect.
At
proposal,
and
based
on
CWA
§
301(
b)(
1)(
C),
33
U.
S.
C.
§
1311(
b)(
1)(
C),
EPA
proposed
requiring
states
to
ensure
that
a
cooling
water
intake
would
result
in
compliance
with
state
water
quality
standards
even
without
any
state
law
authorizing
controls
on
cooling
water
intake
structures.
By
contrast,
in
the
final
rule,
EPA
set
aside
CWA
§
301(
b)(
1)(
C)
(
see
66
Fed.
Reg.
at
65,277/
2
(
JA
XX)),
and
simply
adopted
a
rule
that
requires
the
(
continued...)

­
110
­
EPA
raised
the
issue
of
preserving
the
authority
of
states
to
impose
more
stringent
requirements,
and
that
is
all
the
final
40
C.
F.
R.
§
125.84(
e)
does:

You
must
comply
with
any
more
stringent
requirements
relating
to
the
location,
design,
construction,
and
capacity
of
a
cooling
water
intake
structure
or
monitoring
requirements
at
a
new
facility
that
the
Director
deems
are
reasonably
necessary
to
comply
with
any
provision
of
state
law,
including
compliance
with
applicable
state
water
quality
standards
(
including
designated
uses,
criteria
and
antidegradation
requirements).

Further,
even
focusing
on
the
provisions
that
MISC
compares,
these
provisions
are
parallel
in
substance.
EPA
provided
language
in
both
the
proposed
and
final
"
what­
must­
facilities­
do­
to­
comply"
provision
that
repeated
the
same
point
concerning
compliance
with
more
stringent
state
laws,
but
from
the
facilities'

perspective:
that
states
could
impose
 
and
facilities
were
required
to
comply
with
 
any
more
stringent
state
requirements
relating
to
intake
structures
as
needed
to
meet
water
quality
standards.
Compare
65
Fed.
Reg.
at
49,119/
1
(
40
C.
F.
R.

§
125.84(
g))
(
proposed
rule)
with
66
Fed.
Reg.
at
65,341/
2
(
40
C.
F.
R.
§
125.84(
e))

(
final
rule).
65/
65/(...
continued)
facility
to
comply
with
any
more
stringent
requirements
reasonably
necessary
to
comply
with
state
law.
Compare
65
Fed.
Reg.
at
49,115­
116
(
40
C.
F.
R.
§
125.80(
c))
(
proposed
rule)
with
66
Fed.
Reg.
at
65,338/
2­
3
(
40
C.
F.
R.
§
125.80(
d))
(
final
rule).

­
111
­
After
considering
MISC's
argument
here,
EPA
recognizes
that
the
final
language
in
40
C.
F.
R.
§
125.84(
e)
might
be
read
as
creating
a
broad
"
any
state
law"
requirement,
but
that
is
not
EPA's
intent.
As
EPA
explained
in
the
preamble
to
the
final
rule
and
in
comment
responses,
40
C.
F.
R.
§
125.84(
e)
is
simply
intended
to
protect
the
authority
of
states
to
include
more
stringent
requirements,

as
recognized
by
Congress
in
CWA
§
§
401
and
510,
33
U.
S.
C.
§
§
1341
and
1370,

and
is
consistent
with
CWA
§
101(
a)
and
(
b)
(
recognizing
the
primary
role
of
states
to
protect
waters).
66
Fed.
Reg.
at
65,277­
78
(
JA
XX)
("
At
§
125.84(
e),
the
final
rule
recognizes
that
a
State
may,
under
sections
401
and
510,
ensure
the
inclusion
of
any
more
stringent
requirements
.
.
.
.
");
CR
068.316
at
1502
(
JA
XX).
In
short,
EPA
does
not
interpret
40
C.
F.
R.
§
125.84(
e)
to
be
"
dramatically
broader"
than
the
protection
of
a
state's
authority
to
adopt
and
enforce
more
stringent
requirements
that
was
discussed
in
the
proposed
rule,
and
thus
the
proposed
rule
"
fairly
appri[
zed]
interested
persons
of
the
subjects
and
issues"
of
the
rulemaking.
National
Black
Media
Coalition
v.
F.
C.
C.,
791
F.
2d
at
1022.
­
112
­
C.
EPA's
Case­
By­
Case
Provisions
Are
Consistent
With
Prior
Regulations.

MISC's
final
argument
is
that
the
existing
regulations
governing
discharges
under
the
NPDES
program
make
no
mention
of
cooling
water
intake
structures
or
CWA
§
316(
b),
and
thus
that
the
"
case­
by­
case"
provisions
in
this
rulemaking
are
inconsistent
with
these
prior
regulations.
MISC
Br.
at
11­
12.
This
argument
is
fundamentally
flawed.

EPA's
decision
to
apply
a
case­
by­
case
approach
in
certain
circumstances
under
the
new
regulations
is
not
inconsistent
with
past
regulations.
Indeed,
EPA
and
state
permitting
authorities
have
been
implementing
CWA
§
316(
b)
entirely
on
a
case­
by­
case
basis
for
over
25
years.
66
Fed.
Reg.
at
65,262/
1
(
JA
XX).
It
is
difficult
to
see
how
MISC
can
reasonably
conclude
that
maintaining
the
case­

bycase
approach
for
the
smaller
facilities
is
"
inconsistent"
with
existing
regulations.

Further,
it
is
irrelevant
that
the
existing
NPDES
regulations
 
which
govern
discharges
 
say
nothing
about
EPA's
approach
to
regulating
intake.
See
MISC
Br.
at
11.
Indeed,
it
is
this
silence
that
has
resulted
in
the
case­
by­
case
approach
that
has
been
in
effect.

Finally,
to
the
extent
that
any
explanation
for
these
provisions
was
required,

EPA's
explanation
for
these
provisions
was
adequate,
as
discussed
above
in
­
113
­
Section
II.
E.
This
Court
should
reject
MISC's
"
unexplained
inconsistency"

argument.

CONCLUSION
For
these
reasons,
the
Court
should
deny
these
petitions.
