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Water: Cooling Water Intakes (316b)

Cooling Water Intake Structures - April 12, 2001

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Whitman
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
April 12, 2001

Pursuant to paragraphs 4(a) and (b) of the Amended 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

As EPA stated in January in a Notification of Attainment of Milestone under paragraph 3 of the Amended Consent Decree, the Agency has summarized the major issues raised by public comments on the proposed Phase I regulations. This effort involved analyzing and digesting some 1,001 pages of comments and 52 attachments totaling an additional 3,573 pages, and considering many thousands of pages of references from 88 industry and environmental groups, states, federal agencies, and other entities. (See Status Report of January 12, 2001.) The Office of Science and Technology (OST) sorted all of the comments into categories of issues and entered these comments into an electronic database for response. OST then prepared a 26-page narrative summary of the comments for use by project staff and senior management. The summary reflects all comments received from federal and state agencies and environmental groups, and from trade associations and individual companies that commented extensively on the proposed Phase I regulations.

In the past quarter, OST has devoted a great deal of effort to researching the major issues raised by the public comments. Project staff have conducted a series of briefings for senior OST management on several of the most significant of these issues. Similar briefings are scheduled for later this month and for May, 2001. The briefings are designed to help set the stage for an "option selection meeting" with the Acting Assistant Administrator or Acting Deputy Assistant Administrator to discuss the range of regulatory options for final action on the Phase I regulations. (See paragraph 3(a)(2) of the Amended Consent Decree.)

OST staff and management have met with several entities, at their request, to discuss the issues raised by their comments. For example, the Electric Power Research Institute (EPRI) and the Utility Water Act Group (UWAG) have met several times with OST to present their views on major issues raised by the Phase I proposal and on a wide variety of technical matters related to the rulemaking.

After reviewing the public comments and the administrative record supporting the Phase I proposal, OST began to collect and develop additional data relating to certain aspects of the Phase I regulations. Staff have drafted a notice for publication in the Federal Register that would announce the availability of the additional data for public comment. The draft "Notice of Data Availability" is currently undergoing internal review.

Phase II

In March, EPA reported in a Notification of Attainment of Milestone that it has completed "an initial compilation of survey results for Phase II Regulations (i.e., initial version of database, with questionnaire responses recorded in an electronic format for data analysis)." This effort involved entering engineering information from survey questionnaire responses submitted by 955 facilities and financial and economic information from 252 facilities into an electronic format for data analysis. The financial and economic database includes fewer facilities than the engineering database because fewer facilities received survey questionnaires containing financial and economic questions than engineering questions. Also, some of the responses to the financial and economic questions were significantly incomplete or clearly in error, requiring time consuming quality assurance/quality control (QA/QC) work prior to data entry.

OST and its contractors are continuing to conduct a thorough QA/QC analysis of the technical, financial, and economic data. In general, this involves reviewing the data and evaluating them for inconsistencies, inaccuracies, and incompleteness. In many cases, EPA must speak directly to the questionnaire respondent to resolve QA/QC issues. For example, some facilities reported minimum cooling water intake flows that exceed their reported maximum flows. EPA has contacted many of these facilities to resolve this discrepancy. OST has started using the electronic database to develop initial analyses for the Phase II rulemaking effort.

OST also has continued to conduct the watershed- and facility-level case studies that will provide a basis for estimating the benefits of regulating cooling water intake structures at existing facilities and the effectiveness of various technologies for reducing adverse environmental impact. OST staff have collected a significant amount of data for three watershed case studies (Delaware Bay, Ohio River, and Tampa Bay) and seven facility-level case studies (located on the San Francisco Bay Delta, Mount Hope Bay, New England Coast, and the Hudson River). Project staff are continuing to collect, compile, and analyze the biological, engineering, and technical data from these case study sites, and have started to enter data from these sites into an electronic format for environmental benefit and technical analysis. Staff also have begun to draft reports for two of the facility-level case studies.

In the last status report, EPA stated it was evaluating additional case study sites. OST selected two additional sites, both on the Great Lakes. OST is considering another case study site on a lake or reservoir in the southern United States.

As stated in previous reports, OST might determine that the data needed to complete all aspects of all of these studies are not available. Thus, OST might 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 and Milestones

EPA is on schedule to meet the deadline for completing final action with respect to the Phase I regulations by November 9, 2001. The Agency also is on schedule to meet the deadline to propose the Phase II regulations by February 28, 2002.

With respect to the reporting milestones set forth in the Amended Consent Decree, EPA is on schedule to complete an initial compilation of case study results for the Phase II regulations by May 15, 2001, and an initial small entity impact summary for the Phase II Regulations by June 29, 2001. (See paragraphs 3(b)(2) and (3) of the Amended Consent Decree.) EPA also is on schedule to hold an "option selection meeting" for the Phase I regulations by June 15, 2001. (See paragraph 3(a)(2) of the Amended Consent Decree.)

Staffing and Funding of the Rulemaking Effort

Pursuant to paragraph 4(b) of the Amended Consent Decree, this report provides an estimate of the aggregate number of "full time equivalent" Agency personnel (FTE) who are assigned to develop the § 316(b) regulations, and the number of contract dollars that EPA plans to expend on the development of the regulations, in Fiscal Year (FY) 2001. OST estimates that the Agency will devote 7.0 FTE to development of the Phase I and Phase II rules in FY 2001. This number is approximately 30% higher than the 5.4 FTE assigned to this project in FY 2000. In addition to these FTE, since January an employee of the State of Indiana has been working in OST on the project full time under the provisions of the Intergovernmental Personnel Act.

OST estimates it will expend $2.2 million in FY 2001 on contract support for development of the § 316(b) rules. This figure is higher than the estimated $2.028 million spent in FY 2000. The FY 2001 projection is based on the number of dollars OST has allocated to Agency contracts for technical services to support the engineering, economic, benefits, and statistical analyses in FY 2001, and for the purchase of several databases for the § 316(b) rulemaking project. It also includes funding for the state employee described above.

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 Amended Consent Decree.

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


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