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Water: Cooling Water Intakes (316b)


Riverkeeper, Inc. v. Whitman
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
October 15, 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

During the last quarter, EPA has made substantial progress in the Phase I rulemaking and is on schedule to meet the November 9, 2001, deadline for taking final action.

On July 20, 2001, senior managers from various EPA Offices (including the Office of Water; the Office of Science and Technology (OST); the Office of General Counsel; the Office of Policy, Economics and Innovation; and the Office of Research and Development) briefed the Deputy Administrator on the range of regulatory options for final action on the Phase I regulations. Following that meeting, project staff completed a draft final preamble and rule. On August 30, 2001, the Office of Policy, Economics and Innovation chaired a "Final Agency Review" meeting to ensure appropriate resolution of any significant issues raised by EPA Offices and Regions participating in development of the Phase I regulations. On September 10, 2001, EPA submitted the draft final preamble and rule to the Office of Management and Budget (OMB) for interagency review pursuant to Executive Order 12866.

As required by the Paperwork Reduction Act, 44 U.S.C. § 3501, et seq., project staff have prepared a draft final Information Collection Request (ICR) that documents the need for the information that the Phase I regulations would require facilities to submit to permitting authorities for review. The ICR also estimates the burden and costs associated with collecting and reviewing this information. Project staff are now drafting a Technical Development Document that describes the data, assumptions, and methodology EPA used to estimate the costs associated with compliance with the draft final rule and other regulatory options that EPA considered. Staff also have drafted an Economic Analysis Document that provides detailed information on EPA's estimates of the national economic impacts and benefits associated with the draft final rule.

The period for public comment on certain documents referenced in the Notice of Data Availability referred to in the last Status Report closed on August 6, 2001. 66 Fed. Reg. 28853 (May 25, 2001)(Notice of Data Availability); 66 Fed. Reg. 35572 (July 6, 2001) (extension of comment period for certain documents). Project staff have incorporated all comments on the Notice of Data Availability into an electronic database system and are now developing responses to more than 2,000 comments received on the proposal and the Notice. This is a tremendous effort that will require all the time that remains between now and November 9 to complete.

In the Notice of Data Availability and in the last Status Report, EPA stated that it is considering addressing offshore and coastal oil and gas extraction facilities in Phase II or Phase III, rather than Phase I. In its comments on the Notice, plaintiffs questioned whether the Amended Consent Decree allowed EPA to do this. EPA and plaintiffs conferred on August 23, 2001, to discuss this matter. EPA expressed the view that offshore and coastal oil and gas extraction facilities may properly be addressed in Phase II or Phase III. Plaintiffs agreed that they would not challenge EPA's position that it is permissible under the Amended Consent Decree for EPA to address these facilities in Phase II or Phase III.

Phase II

During the last quarter, EPA has made substantial progress on the Phase II proposed regulations. Regarding the watershed- and facility-level case studies, project staff have continued to analyze data from the initial Compilation of Case Study Results (defined in the Amended Consent Decree as "an initial version of database, with case study information recorded in an electronic format for environmental benefit and technical analysis"). Staff are using these data to develop detailed reports for each case study documenting EPA's estimates of the benefits of regulating cooling water intake structures at existing facilities. The Delaware Bay watershed case study report is nearly complete. Project staff continue to draft the detailed report for the Ohio River and Tampa Bay watershed case studies and seven facility-level case studies (located on the San Francisco Bay Delta, Mount Hope Bay, New England Coast, and the Hudson River). As stated in previous reports, OST might determine that the data needed to complete 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.

Project staff also developed and refined regulatory options for consideration by management. To prepare for "options selection" by senior management, staff devoted extensive effort to estimating the national economic impacts and benefits associated with key options using, among other sources of information, data from the Delaware Bay and Ohio River case studies described above. As reported on September 14, 2001, in a Notification of Attainment of Milestone pursuant to paragraph 3(a)(2) of the Amended Consent Decree, EPA has conducted an "option selection meeting" with the Deputy Assistant Administrator for Water, Diane Regas, to discuss the range of regulatory options for proposal of the Phase II regulations. On September 25, 2001, senior managers and staff briefed the Deputy Administrator, Linda Fisher, on the range of regulatory options for the proposed Phase II regulations.

Phase III

Project staff have continued researching literature and working with staff from the Department of Interior's Minerals Management Service and the U.S. Coast Guard to investigate issues associated with regulating cooling water intake structures used by offshore and coastal oil and gas extraction facilities. OST's Engineering and Analysis Division recently surveyed this industry as part of its development of effluent limitations guidelines regulating the discharge of synthetic-based drilling fluids under the CWA and will use all relevant information from this survey to support the Phase III regulations.

Project staff are working to develop the initial impingement and entrainment sample methodology that is the subject of an upcoming milestone under the Amended Consent Decree. They have developed a draft sampling plan documenting how EPA might use this sample methodology in an impingement and entrainment sampling program to develop an initial compilation of impingement and entrainment data by theJuly 30, 2002, milestone date.

Status of Attainment of Consent Decree Deadlines and Milestones

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

This is an extremely aggressive schedule. The Division Director directly responsible for these regulations and I continue to closely monitor the staffing and financial resources allocated to this project. We are continuing to investigate and, where possible and appropriate, reallocate staffing and financial resources to support development of these regulations. Pursuant to paragraph 4(b) of the Amended Consent Decree, the January 2002 status report will summarize resources devoted to the project in Fiscal Year 2001.

Project staff continue to work significant numbers of overtime hours to meet the Consent Decree deadlines and interim schedule milestones. In its Status Report of July 16, 2001, EPA notified the court and plaintiffs that "any unanticipated staff turnover or any significant illness among staff assigned to the project could affect the production of the many analyses and products needed to support these regulations." One of the key staff members, the project leader, is a Lieutenant Colonel and Battalion Commander in the United States Army Reserve. In response to the events of September 11, 2001, she could be mobilized to support U.S. military operations. EPA's ability to meet the deadlines would be materially affected if she is ordered to report for duty. The precise effect of her departure would depend on its timing. OST managers are considering how to quickly compensate for the possible loss of such an experienced and senior member of the project staff so as to minimize any impacts on the schedule. We will notify the Court and the plaintiffs immediately if the project leader is ordered to report for duty.

On September 19, 2001, a junior engineer on the project resigned and left the Agency. Efforts to detail another employee onto the team are underway as an interim measure until a permanent replacement can be made. This transition will not materially affect EPA's ability to meet deadlines or interim schedule milestones.

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

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

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