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Water: Cooling Water Intakes (316b)

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper v. Browner
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
January 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

The comment period on the proposed rule for new facilities closed on November 9, 2000. Eighty-eight entities have submitted comments totaling 1,001 pages, along with 52 attachments totaling another 3,573 pages, and many thousands of pages of references. Plaintiffs in this action, the Utility Water Act Group (UWAG), the Edison Electric Institute (EEI), and the American Forest and Paper Association (AFP&A) all submitted extensive comments. For example, UWAG's comments included a 305-page main comment document, 15 attachments totaling 893 pages, and 527 references totaling 9,842 pages. A number of other trade associations also submitted comments, including the American Iron and Steel Institute, the National Association of Manufacturers, the American Petroleum Institute, the American Chemistry Council, and the Electric Power Supply Association, as did representatives of individual companies potentially affected by the Phase I rulemaking, and several environmental organizations that are not plaintiffs in this case. EPA also received comments from the States of Alaska, Louisiana, Michigan, New Hampshire, New Jersey, New York, Oregon, Pennsylvania and Texas, and several federal agencies, including the Department of Energy, the Tennessee Valley Authority, the Small Business Administration, and the National Marine Fisheries Service.

The Office of Science and Technology (OST) has devoted significant effort to analyzing the public comments on the Phase I proposal, classifying them based on categories of issues, and entering them into an electronic database for preparation of comment responses. At this time, OST estimates it will need to address approximately 1,300 individual issues raised by the comments.

Phase II

OST has tentatively determined that 947 facilities that completed the Detailed Industry Cooling Water Intake Questionnaire would potentially be affected by the Phase II or Phase III rulemaking for existing facilities. The Office is continuing to devote significant effort to a quality assurance review to ensure it has accurately coded and entered questionnaire data into an electronic database for analysis. For example, OST is conducting a "performance audit" by randomly selecting questionnaires for a detailed comparison of the data entered into the electronic database against the original questionnaire responses. OST also has devoted significant effort to development of a plan for initial analysis of the Detailed Questionnaire data and development of computer software for the initial data analysis.

OST has continued to make progress on the watershed- and facility-level 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. Last quarter, OST conducted three site visits to support watershed-level case studies for the Ohio River, Tampa Bay, and Delaware Bay. OST also conducted two site visits to support facility-level studies in California and New England, covering six individual facilities. During the site visits, OST staff generally met with EPA Regional and State officials and, in some instances, individual facility representatives, to identify and collect biological, engineering, and other technical data, and to observe the operation of cooling water intake structures and impingement and entrainment reduction technologies. OST staff are continuing to collect, compile, and analyze the biological, engineering, and technical data for these studies. They also are continuing to prepare for additional case study visits and, based on the data gathered to date, are continuing to analyze and refine approaches for estimating economic benefits.

As reported in the October 2000 status report, 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 paragraph 3 of the Amended Consent Decree, EPA is on schedule to complete a summary of the major issues raised by public comments on the proposed Phase I rule by January 19, 2001, its first milestone as the Agency moves towards final action on the Phase I regulations. EPA also is on schedule to complete an initial compilation of questionnaire results by March 28, 2001, its first milestone as the Agency moves towards proposal of the Phase II regulations.

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 were assigned to develop the § 316(b) regulations, and the number of contract dollars expended on the development of the regulations, in Fiscal Year (FY) 2000. OST estimates that the Agency devoted 5.4 FTE to development of the Phase I and Phase II rules in FY 2000. This number is slightly higher than the estimate of 5.35 FTE provided by Michael B. Cook, Director of the Office of Wastewater Management (OWM), in his Declaration of December 20, 1999, in support of the Agency's motion to modify the original Consent Decree. It is a somewhat lower number than the Agency anticipated when it reported, in April 2000, that it had added a full-time supervisor in OST, over and above the levels identified in the Cook Declaration. The difference reflects a somewhat lower utilization of Regional and OWM staff than anticipated for FY 2000. Also, the addition of the full-time supervisor in OST occurred at the mid-point of the fiscal year which, for FY 2000, added only 0.5 FTE to the project. All of the key Agency staff assigned to the § 316(b) regulations worked a significant number of overtime hours in FY 2000. This overtime is not reflected in the above FTE estimate.

OST estimates that it expended $2.028 million in FY 2000 on contract support for the development of the § 316(b) rules. This estimate is slightly higher than the $2 million estimate provided by Michael B. Cook in his Declaration of December 20, 1999. It is based on the number of dollars obligated to Agency contracts for technical services to support the engineering, economic, benefits, and statistical analyses in FY 2000, and several purchases for the § 316(b) rulemaking project.

Pursuant to paragraph 4(b) of the Amended Consent Decree, the next status report will provide an estimate of the aggregate number of "full time equivalent" Agency personnel who are assigned to develop the regulations, and the number of contract dollars that EPA plans to expend on the development of the regulations, during FY 2001.

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/ ________________________________________
James Hanlon (for)
Geoffrey H. Grubbs, Director
Office of Science and Technology
U.S. Environmental Protection Agency

 


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