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Water: Large Existing Power Plants

Instructions for requesting phase II regulatory cost information for facilities who claimed flow data as confidential business information

This page provides instructions for facilities who request the costing information EPA considered in developing the Clean Water Act section 316(b) final Phase II regulations. These regulations are entitled "National Pollutant Discharge Elimination System–Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities," and they were published in the Federal Register on July 9, 2004 (69 FR 41576). These regulations allow facilities to request site-specific requirements if they can demonstrate that the costs they would incur in implementing the specified compliance alternatives are significantly greater than the costs EPA considered for a facility like theirs to comply with the national performance standards. See 40 CFR 125.94(a)(5)(i) at 69 FR 41685.

For most facilities, the cost estimates EPA considered are based on information that is publically available; consequently, EPA published the estimates in Appendix A of the preamble to the rule (See 69 FR 41670). For some facilities, however, EPA considered costs derived from cooling water intake flow data that were claimed by facilities as confidential business information (CBI). Cost estimates derived from information claimed as CBI are not publicly available and, therefore, are not included in Appendix A. Appendix A also does not include cost estimates for facilities when: (1) EPA did not have information for the facility; or (2) it was unclear as to whether the respondent had claimed CBI for their flow data and EPA opted not to risk potentially improper disclosure;

Any company for which EPA did not publish cost estimates in Appendix A may submit a written request to EPA for those estimates. A sample request is provided below for your convenience. To ensure that all data or information claimed as CBI is protected in accordance with EPA regulations at 40 CFR 2, Subpart B, any requests for release of such company-specific data should be submitted to EPA on company letterhead and signed by a responsible official authorized to receive such data. The request must identify the specific data requested and include the following statement, "I certify that EPA is authorized to transfer confidential business information submitted by my company, and that I am authorized to receive it." The request should also refer to the identification number assigned to the facility in responding to EPA's Phase II Detailed Industry Questionnaire, and should indicate the manner in which the requester would like the information transmitted via registered mail or Federal Express. (EPA will not send information claimed as CBI through electronic mail or by facsimile.) Once this request is received, EPA will only send the requested information to the authorized corporate official in a tabular format similar to that provided in Appendix A of the Phase II preamble.

In order to expedite our response to your request, EPA also requests that you sign a waiver releasing your claim of CBI on the design intake flow data you submitted in responding to EPA's Questionnaire. If you waive your CBI claim, EPA would be able to transmit the cost information to you by electronic mail or facsimile. EPA notified you in the Questionnaire that CBI claims could be asserted for some or all of your responses. You might have claimed the flow data as CBI by: (1) checking a circle at the bottom of the page that contained the question on design intake flow; (2) checking a circle at the beginning of the Questionnaire indicating that you wanted to claim all eligible data as CBI; or (3) by using another method outlined in 40 CFR 2.203. In the instructions to the Questionnaire, EPA informed you that certain types of information could not be claimed as confidential under the Clean Water Act (e.g., plant location, water body, water flow data, water body type). Your indication that all "eligible" data should be claimed as CBI could be interpreted to exclude the design intake flow data provided in response to Question 3(g) of the Questionnaire. EPA does not believe that a facility could sustain a CBI claim for this information because it is often available through public information sources such as the Department of Energy's Energy Information Administration. Finally, even if you maintain your CBI claim today, you would still be required, pursuant to 40 CFR 22.21(r)(3), to submit the design intake flow as part of your application for a National Pollutant Discharge Elimination System (NPDES) permit (or equivalent State permit). NPDES permit applications are made available to the public in accordance with 40 CFR 124.9(b)(1) and 40 CFR 124.10(d)(1)(iv).

For all of the above reasons, we request that you waive your CBI claim if you intend to request the cost information EPA considered for your facility. Waiving your claim of CBI for the design intake flow information will significantly reduce the burden associated with handling your request and, consequently, will expedite EPA's transmission of the cost information to you. Please note, however, that you are under no obligation to sign this waiver. EPA will send you the information whether or not you waive your CBI claim. However, EPA reserves the right to make a class determination in the future that this information is not CBI.

If you have any questions about these procedures please contact Martha Segall at (202) 566-1041.

Sample request including the above instructions (MS-Word) (3 pages, 40 K).


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