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Water: Cooling Water Intakes (316b)

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)
July 16, 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

On May 25, 2001, EPA published and requested public comment on a "Notice of Data Availability" addresing certain aspects of the proposed Phase I regulations. 66 Fed. Reg. 28853. The notice summarized data EPA has received and collected since publication of the Phase I proposal, presented an assessment of the significance of those data, and described some modifications to the Phase I proposal. The period for public comment on the Notice of Data Availability closed on June 25, 2001. EPA later reopened the public comment period for a few documents that were included in the administrative record for the notice. The period for comment on those documents now closes on August 6, 2001, an additional 30 days. 66 Fed. Reg. 35572 (July 6, 2001).

As of this date, 38 entities have submitted comments totaling 456 pages on the Notice of Data Availability. The comments included 75 attachments totaling another 3,841 pages, and many hundreds of pages of references. Comments were submitted by plaintiffs in this action, other environmental groups, several trade organizations (including the Utility Water Act Group (UWAG), the Edison Electric Institute (EEI), the American Forest and Paper Association (AF&PA) and the American Petroleum institute), individual companies, States (including Florida, Louisiana, North Carolina, North Dakota, Maryland, Michigan, and Pennsylvania) and Federal agencies (including the Department of Energy, the Tennessee Valley Authority, and the Small Business Administration).

Project staff have been organizing the comments on the Notice of Data Availability using an electronic database system that EPA and its contractors developed to facilitate responding to comments on the Phase I proposal. They also are drafting responses to the approximately 1,300 individual issues raised by comments on the Phase I proposal. See Status Report of January 12, 2001.

As EPA reported on June 19, 2001, in a Notification of Attainment of Milestone, the Agency held an option selection meeting with the Acting Assistant Administrator for Water to discuss the range of regulatory options for final action on the proposed Phase I regulations. Agency staff and senior managers are scheduled to brief the Deputy Administrator on the Phase I regulations on July 20, 2001. Project staff are now beginning to draft portions of the final Phase I regulations and an accompanying preamble, which they intend to submit for broader review within the Agency in August.

Phase II

During the last quarter, EPA and its contractors continued to work on resolving the technical, financial, and economic data quality issues identified during the quality assurance/quality control (QA/QC) effort. EPA also 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. Project staff have collected or identified and evaluated 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, the New England coast, and the Hudson River).

In May, EPA completed an "initial compilation of case study results" for the Phase II regulations. See Notification of Attainment of Milestone, May 16, 2001. This involved entering engineering information from responses to the survey questionnaire, additional data collected during site visits, and biological impingement and entrainment data into an electronic format for environmental benefit and technical analysis. Completing the analyses and reports associated with the case studies continues to be a major effort.

Also, EPA reported in a Notification of Attainment of Milestone on July 2, 2001 that it had completed an "initial small entity impact summary" (i.e., an initial summary of potential impacts of regulatory options on small entities.) The purpose of the small entity impact analysis is to determine the potential economic impacts of regulatory options on small electric generating entities, as required by the Regulatory Flexibility Act, 5 U.S.C. § 601, et seq.

On May 23, 2001, EPA held a day-long forum to discuss specific issues associated with the development of regulations under § 316(b)of the Clean Water Act. 66 Fed. Reg. 20658. At the meeting, 17 experts from industry, public interest groups, States, and academia reviewed and discussed the Agency's preliminary data on cooling water intake structure technologies that are in place at existing facilities and the costs associated with the use of available technologies for reducing impingement and entrainment. Over 120 people attended the meeting.

Status of Attainment of Consent Decree Deadlines and Milestones

EPA is currently 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 currently on schedule to meet the deadline for proposing Phase II regulations by February 28, 2002. I remain committed to meeting these deadlines. Together with the Division Director directly responsible for these regulations, I am closely monitoring the staffing and financial resources allocated to this project. My staff is continuing to work significant overtime hours to meet the Consent Decree deadlines and interim schedule milestones.

I am concerned that any unanticipated staff turnover or any significant illness among staff assigned to the project may materially affect our production of the many analyses and products needed to support these regulations. We are continuing to investigate whether additional staffing or financial resources might be reallocated from other projects to provide further support for the development of these regulations. We are also continuing to monitor the development of guidance on the procedures and analyses necessary to comply with a new Executive Order, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use." EO 13211, 66 FR 28355 (May 22, 2001). Based on what I know to date, I do not anticipate that compliance with Executive Order 13211 will materially affect EPA's ability to meet the Phase I or Phase II deadlines.

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/ July 16, 2001
_____________________________
Geoffrey H. Grubbs, Director
Office of Science and Technology
U.S. Environmental Protection Agency


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