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Water: Cooling Water Intakes (316b)

Cooling Water Intake Structures - Section 316(b) - REPORT ON STATUS OF § 316(b) RULEMAKING

Cronin v. Browner
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
October 10, 2000

Pursuant to paragraph 3(a) of the Consent Decree in the above-referenced matter, the U.S. Environmental Protection Agency ("EPA" or "the Agency") provides this status report concerning its actions to propose and take final action with respect to regulations under § 316(b) of the Clean Water Act ("CWA").

Progress in Development of Rules Since Last Report

Phase I

On July 20, 2000, the Administrator signed proposed regulations addressing newly constructed facilities that employ cooling water intake structures. EPA published the proposal in the Federal Register on August 10, 2000. 65 Fed. Reg. 49060. The notice provided for a 60-day public comment period. In response to requests from industry representatives and plaintiffs in this matter, EPA extended the comment period to 90 days, ending on November 9, 2000. 65 Fed. Reg. 52978 (August 31, 2000).

As of this date, EPA has received 19 letters from various industry entities requesting that the comment period be extended further by 30 to 60 days. The Agency has determined that ninety days is sufficient to provide the public with a meaningful opportunity to comment on a rulemaking with the scope and estimated cost of the Phase I proposal. Accordingly, EPA has not further extended the comment period. Consistent with normal Agency practice, EPA will consider comments filed late to the maximum extent practicable.

Phase II

In the past quarter, the Office of Science and Technology (OST) has continued to administer the Detailed Industry Cooling Water Intake Questionnaire. In late July, OST mailed 80 warning letters to entities that had not returned their questionnaire. As of October 5, 2000, all but 19 questionnaires had been returned, reflecting an overall questionnaire return rate of 98.6%. OST has completed an initial quality assurance review of the returned questionnaires and is working to resolve a small number of discrepancies in the data. Data entry is nearly complete. Over the next several months, OST will direct significant effort to additional quality assurance review, data entry verification, and preliminary analysis of the questionnaire data.

OST also has completed the first draft of a methodology for estimating the costs to retrofit cooling water intake structures at existing facilities to meet potential "best technology available" (BTA) requirements. The draft document provides an overview of the types of technologies that can be used to reduce adverse environmental impact, describes a methodology for cost research and analysis, presents unit cost estimates for various technologies based on application of the costing methodology, evaluates alternative sources of costing information, and compares information from these sources to the preliminary costing analysis. OST has now begun to verify the draft costing methodology and costing information.

OST has continued to make progress on the watershed and facility case studies that will provide a basis for gauging both the benefits of regulating cooling water intake structures at existing facilities and the effectiveness of various technologies for reducing adverse environmental impact. OST has tentatively selected three watersheds (Delaware Bay, Tampa Bay, and the Ohio River) and seven individual facilities (in New England, New York, and California) for these case studies. OST anticipates selecting at least two additional facilities for study in the next several months. OST staff have developed and are now implementing a detailed data collection plan to gather the environmental and technical data needed for these watershed and facility case studies. As part of this effort, OST staff and a contract support team will be visiting EPA Regional and State officials and, if necessary, individual facility representatives in the next several months. During this data collection period, OST may determine that the data needed to complete all aspects of all of these studies are not available. Thus, OST may change the design of one or more of the planned studies or, to the degree possible, identify other watersheds or facilities for investigation.

Status of Attainment of Consent Decree Deadlines

In its Opinion and Order of March 27, 2000, the court established a deadline of July 20, 2000, for EPA to propose the Phase I regulations and a deadline of July 20, 2001, for EPA to propose the Phase II regulations. The signing of proposed Phase I regulations by the Administrator on July 20, 2000, partially satisfied the requirements of the Opinion and Order. As EPA stated in its last status report, the Agency believes that it will have great difficulty in developing a sound, defensible, and robust Phase II rule if it is compelled to complete all case studies and analyses, develop regulatory options, make critical decisions, develop regulatory and preamble language, and complete the rulemaking record by the current deadline of July 20, 2001.

EPA and plaintiffs are continuing to negotiate a revised rulemaking schedule with the assistance of the mediator appointed by the court. As the parties reported at a conference with the court on October 4, 2000, EPA and plaintiffs are engaged in intensive efforts to reach a final agreement and present a proposed amended consent decree to the court by the end of the month.

Staffing and Funding of the Rulemaking Effort

Staffing for the rulemaking effort has not changed significantly since the last status report.

Fiscal Year (FY) 2000 ended on September 30, 2000. Congress has not enacted legislation establishing EPA's appropriation for FY 2001. As of this date, EPA is operating on a continuing resolution for FY 2001 that maintains funding at the FY 2000 level. EPA will evaluate any need for additional funding for the § 316(b) rulemaking after the enactment of the FY 2001 Agency-wide appropriation.

The undersigned, Geoffrey H. Grubbs, is Director of the Office of Science and Technology of EPA's Office of Water. The Office of Science and Technology has primary responsibility for discharging EPA's duties under the Consent Decree.

Geoffrey H. Grubbs, Director
Office of Science and Technology
U.S. Environmental Protection Agency

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