Section 096-526-17 - Application Processing Procedures for Existing Facilities [See 40 CFR Section 125.98]A.Permit application. The Department must review the materials submitted by the applicant under section 18 for completeness pursuant to Chapter 521, section 4(e), at the time of the initial permit application and any application for a subsequent permit.B.Permitting requirements. The requirements of this Chapter are implemented through a MEPDES permit. Based on the information submitted in the permit application, the Department must determine the requirements and conditions to include in the permit.(1) Such permits, including permits with alternative requirements under paragraph B(7) of this section, must include the following language as a permit condition: "Nothing in this permit authorizes take for the purposes of a facility's compliance with the Endangered Species Act."(2) At a minimum, the permit must include conditions to implement and ensure compliance with the impingement mortality standard in section 13.C and the entrainment standard in section 13.D, including any measures to protect State or Federally listed threatened and endangered species and designated critical habitat required by the Department. In addition, the permit must include conditions, management practices, and operational measures necessary to ensure proper operation of any technology used to comply with the impingement mortality standard in section 13.C and the entrainment standard in section 13.D. Pursuant to section 13.G, the permit may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to State or Federally listed species and designated critical habitat, or avoid jeopardizing State or Federally listed species or destroying or adversely modifying designated critical habitat (e.g., prey base). Such control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service during the 60-day review period pursuant to section 17.H or the public notice and comment period pursuant to Chapter 522, section 8. The Department may include additional permit requirements if:(i) Based on information submitted to the Department by any fishery management agency or other relevant information, there are migratory or sport or commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure; or(ii) It is determined by the Department, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to State or Federally listed and proposed, threatened and endangered species, and designated and proposed critical habitat.(3) At a minimum, the permit must require the permittee to monitor as required by sections 13 and 15.(4) At a minimum, the permit must require the permittee to report and keep the records specified by section 16.(7) For new units at existing facilities, the Department may establish alternative requirements if the data specific to the facility indicate that compliance with the requirements of section 13.E(1) or (2) for each new unit would result in compliance costs wholly out of proportion to the costs 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 other than impingement or entrainment, or significant adverse impacts on local energy markets: (i) The alternative requirements must achieve a level of performance as close as practicable to the requirements of section 13.E(1);(ii) The alternative requirements must ensure compliance with this Chapter, other provisions of the Clean Water Act, and State law;(iii) The burden is on the Owner or Operator of the facility requesting the alternative requirement to demonstrate that alternative requirements should be authorized for the new unit.(8) The Department may require additional measures, such as seasonal deployment of barrier nets, to protect shellfish.C.Compliance schedule. When the Department establishes a schedule of requirements under section 13.B, the schedule must provide for compliance with section 13.C and D as soon as practicable. When establishing a schedule for electric power generating facilities, the Department may consider measures to maintain adequate energy reliability and necessary grid reserve capacity during any facility outage. These may include establishing a staggered schedule for multiple facilities serving the same localities. The Department may confer with independent system operators and state public utility regulatory agencies when establishing a schedule for electric power generating facilities. The Department may determine that extenuating circumstances (e.g., lengthy scheduled outages, future production schedules) warrant establishing a different compliance date for any manufacturing facility.D.Supplemental Technologies and Monitoring. The Department may require additional technologies for protection of fragile species and may require additional monitoring of species of fish and shellfish not already required under section 13.C. The Department may consider data submitted by other interested parties. The Department may also require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.E.Impingement technology performance optimization study. The Owner or Operator of a facility that chooses to comply with section 13.C(5) or (6) must demonstrate in its impingement technology performance optimization study that the operation of its impingement reduction technology has been optimized to minimize impingement mortality of non-fragile species. The Department may request further data collection and information as part of the impingement technology performance optimization study, including extending the study period beyond two years. The Department may also consider previously collected biological data and performance reviews as part of the study. The Department must include in the permit verifiable and enforceable permit conditions that ensure the modified traveling screens or other systems of technologies will perform as demonstrated. The Department may waive all or part of the impingement technology performance optimization study described in section 18.F after the first permit cycle wherein the permittee is found to be in compliance with section 13.C.F.Site-specific entrainment requirements. The Department must establish site-specific requirements for entrainment after reviewing the information submitted under section 18 and section 14. These entrainment requirements must reflect the Department's determination of the maximum reduction in entrainment warranted after consideration of factors relevant for determining the BTA at each facility. These entrainment requirements may also reflect any control measures to reduce entrainment of State or Federally listed threatened and endangered species and designated critical habitat (e.g., prey base). The Department may reject an otherwise available technology as a basis for entrainment requirements if the Department determines there are unacceptable adverse impacts including impingement, entrainment, or other adverse effects to State or Federally listed threatened or endangered species or designated critical habitat. Prior to any permit reissuance the Department must review the performance of the facility's installed entrainment technology to determine whether it continues to meet the requirements of section 13.D.(1) The Department must provide a written explanation of the proposed entrainment determination in the fact sheet for the proposed permit under Chapter 522, section 6. The written explanation must describe why the Department has rejected any entrainment control technologies or measures that perform better than the selected technologies or measures and must reflect consideration of all reasonable attempts to mitigate any adverse impacts of otherwise available better-performing entrainment technologies.(2) The proposed determination in the fact sheet must be based on consideration of any additional information required by the Department pursuant to section 17.I and the following factors listed below. The weight given to each factor is within the Department's discretion based upon the circumstances of each facility.(i) Numbers and types of organisms entrained, including, specifically, the numbers and species (or lowest taxonomic classification possible) of State or Federally listed, threatened and endangered species, and designated critical habitat (e.g., prey base);(ii) Impact of changes in particulate emissions or other pollutants associated with entrainment technologies;(iii) Land availability inasmuch as it relates to the feasibility of entrainment technology;(iv) Remaining useful plant life; and(v) Quantified and qualitative social benefits and costs of available entrainment technologies when such information on both benefits and costs is of sufficient rigor to make a decision.(3) The proposed determination in the fact sheet may be based on consideration of the following factors to the extent the applicant submitted information under section 18 on these factors:(i) Entrainment impacts on the water body;(ii) Thermal discharge impacts;(iv) Impacts on the reliability of energy delivery within the immediate area;(v) Impacts on water consumption; and(vi) Availability of process water, gray water, wastewater, reclaimed water, or other waters of appropriate quantity and quality for reuse as cooling water.(4) If all technologies considered have social costs not justified by the social benefits, or have unacceptable adverse impacts that cannot be mitigated, the Department may determine that no additional control requirements are necessary beyond what the facility is already doing. The Department may reject an otherwise available technology as a BTA standard for entrainment if the social costs are not justified by the social benefits.H. The Department must transmit all permit applications for facilities subject to this Chapter to the appropriate Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service upon receipt for a 60-day review prior to public notice of the draft or proposed permit. The Department shall provide the public notice and an opportunity to comment as required under Chapter 522, section 8, and must submit a copy of the fact sheet, the permit application (if any) and the draft permit (if any) to the appropriate Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service. This includes notice of specific cooling water intake structure requirements, notice of the draft permit, and any specific information the Department has about threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for such species and habitat.I.Additional information. In implementing the Department's responsibilities under the provisions of this Chapter, the Department is authorized to inspect the facility and to request additional information needed by the Department for determining permit conditions and requirements, including any additional information from the facility recommended by the Services upon review of the permit application under paragraph H of this section.J. Nothing in this Chapter authorizes the take, as defined at 16 U.S.C. 1532(19), of threatened or endangered species of fish or wildlife. Such take is prohibited under the Endangered Species Act unless it is exempted pursuant to 16 U.S.C. 1536(o) or permitted pursuant to 16 U.S.C. 1539(a). Absent such exemption or permit, any facility operating under the authority of this Chapter must not take threatened or endangered wildlife.K. The Department must submit at least annually to the appropriate EPA Regional Office facilities' annual reports submitted pursuant to section 16.G, for compilation and transmittal to the Services.06-096 C.M.R. ch. 526, § 17