40 C.F.R. § 125.91

Applicability

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(a) The owner or operator of an existing facility, as defined in § 125.92(k), is subject to the requirements at §§ 125.94 through 125.99 if:

(1) The facility is a point source;

(2) The facility uses or proposes to use one or more cooling water intake structures with a cumulative design intake flow (DIF) of greater than 2 million gallons per day (mgd) to withdraw water from waters of the United States; and

(3) Twenty-five percent or more of the water the facility withdraws on an actual intake flow basis is used exclusively for cooling purposes.

(b) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with one or more independent suppliers of cooling water if the independent supplier withdraws water from waters of the United States but is not itself a new or existing facility as defined in subparts I or J of this part, except as provided in paragraphs (c) and (d) of this section. An owner or operator of an existing facility may not circumvent these requirements by creating arrangements to receive cooling water from an entity that is not itself a facility subject to subparts I or J of this part.

(c) Obtaining cooling water from a public water system, using reclaimed water from wastewater treatment facilities or desalination plants, or recycling treated process wastewater effluent as cooling water does not constitute use of a cooling water intake structure for purposes of this subpart.

(d) This subpart does not apply to offshore seafood processing facilities, offshore liquefied natural gas terminals, and offshore oil and gas extraction facilities that are existing facilities as defined in § 125.92(k). The owners and operators of such facilities must meet requirements established by the Director on a case-by-case, best professional judgment (BPJ) basis.

Notes of Decisions

Cited in 3 cases, 2007–2010 · leading case: Riverkeeper, Inc. v. United States Env't Prot. Agency, 475 F.3d 83 (2d Cir. 2007).

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Riverkeeper, Inc. v. United States Env't Prot. Agency, 475 F.3d 83 (2d Cir. 2007). · cites it 5× “See 40 C.F.R. § 125.91 (a). This cooling process requires power plants to extract billions of gallons of water per day from the nation’s waters, thereby impinging and entraining a huge number of aquatic organisms.”

ConocoPhillips Co. v. United States Env't Prot. Agency, 612 F.3d 822 (5th Cir. 2010). “2007) (citing 40 C.F.R. § 125.91 ) rev’d and remanded by Entergy Corp.”

ConocoPhillips Co v. EPA (5th Cir. 2010). “23 The remaining compliance alternatives referenced national performance standards that “‘are based on consideration of a range of technologies that [the] EPA has determined to be commercially available.”

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