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)
April 12, 2002
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
On November 9, 2001, the Administrator signed final regulations addressing newly constructed facilities that employ cooling water intake structures. EPA published the Phase I regulations in the Federal Register on December 18, 2001. 66 Fed. Reg. 65256. In January 2002, numerous environmental groups (including plaintiff Riverkeeper, Inc.), two individual regulated entities, and movant-intervenor Utility Water Act Group filed petitions for review in various federal circuit courts challenging the Phase I regulations. These petitions have been consolidated in the Second Circuit and are now pending.
EPA focused its efforts in this quarter on completing the Phase II proposed regulations. On February 28, 2002, the Administrator signed proposed regulations addressing existing utilities and non-utility power producers that employ cooling water intake structures and withdraw 50 million gallons of cooling water per day or more from waters of the U.S. On April 9, 2002, EPA's 103-page proposal appeared in the Federal Register. 67 Fed. Reg. 17122. The proposal notice provides for a 90 day public comment period, which ends on July 8, 2002.
The administrative record that EPA developed to support the Phase II proposal comprises approximately 22 linear feet. It includes a lengthy technical document that presents information on the technologies EPA considered in developing the proposal and on the data and methods the Agency used to develop cost estimates; a 16-chapter document that presents EPA's economic and benefits analysis (including analyses of compliance costs, facility closures, energy supply effects, and projected environmental benefits); and a 68-chapter document that presents information on EPA's methodology for estimating the benefits associated with the proposal and on the watershed- and facility-level case studies EPA used to estimate baseline impingement and entrainment rates and benefits.
In January, EPA reported in a Notification of Attainment of Milestone that it has completed its initial sampling methodology for collecting actual impingement and entrainment data from low flow facilities. EPA is now considering nine facilities as possible locations for the collection of initial impingement and entrainment data. Office of Science and Technology (OST) staff and contractors visited each of these facilities during the first two weeks of April.
Status of Attainment of Consent Decree Deadlines and Milestones
EPA is on schedule to meet the deadline to propose the Phase III regulations by June 15, 2003, and to take final action on the Phase II regulations by August 28, 2003. EPA continues to believe that this is an extremely aggressive schedule. As an example of the workload EPA faces this calendar year, EPA expects that it will receive thousands of comments from more than one hundred entities on its Phase II proposal. After reviewing these comments and conducting additional analyses, the Agency anticipates that it will need to publish a Notice of Data Availability (NODA) and review hundreds, if not thousands, of comments on the NODA. At the same time, EPA must develop a range of options and complete costing and economic analyses for a large universe of potentially regulated facilities to prepare for options selection for the Phase III rulemaking. EPA also must devote considerable resources to defense of the Phase I regulations in the Second Circuit.
With respect to the approaching reporting milestones set forth in the Amended Consent Decree, EPA is on schedule to complete an initial compilation of impingement and entrainment data by July 30, 2002. This compilation will be an initial version of a database, with impingement and entrainment sampling information recorded in an electronic format for environmental impact analysis. (See paragraph 3(c)(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) 2002. OST estimates that the Agency will devote 9.5 FTE to development and defense of the Phase I, Phase II, and Phase III rules in FY 2002. This number is approximately 19% higher than the 8.0 FTE assigned to this project in FY 2001. In addition to these FTE, an employee of the State of Indiana worked on the project on a full-time basis until signature of the Phase II proposal, under the provisions of the Intergovernmental Personnel Act.
OST estimates that it will expend $3.8 million in FY 2002 on contract support for the development of the § 316(b) rules. This estimate includes funding for the State of Indiana employee described above.
In the January 14, 2001 Status Report, EPA reported that it spent $2.55 million in FY 2001. This figure reflected contract expenditures billed to the Agency, and not, as reported, all of the monies OST obligated to contracts for § 316(b) technical services. OST believes contract expenditures billed are a more accurate measure of prior year expenditures than obligations to contracts.
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