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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)
January 14, 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

Phase I

On November 9, 2001, the Administrator signed final regulations addressing newly constructed facilities that employ cooling water intake structures. EPA published the final rule in the Federal Register on December 18, 2001. 66 Fed. Reg. 65256.

Phase II

On December 17, 2001, management and staff from the Office of Water (OW), Office of General Counsel (OGC) and the Office of Policy, Economics and Innovation (OPEI) briefed the Administrator and Deputy Administrator on the Phase II proposal. On December 21, 2001, staff from OPEI chaired a "Final Agency Review" meeting on the draft proposal to ensure appropriate resolution of issues raised by EPA Offices and Regions participating in development of the rule. On December 28, 2001, EPA submitted a draft preamble comprised of more than 240 double-spaced pages, and the draft rule, to the Office of Management and Budget (OMB), to begin an expedited 60-day interagency review period pursuant to Executive Order 12866. On January 2 and January 3, 2002, EPA staff distributed a draft regulatory impact analysis, comprised of about 600 pages of single-spaced text pages and tables, to interagency reviewers from OMB, the U.S. Fish and Wildlife Service (Department of Interior), the National Marine Fisheries Service (Department of Commerce), the Department of Energy, the Small Business Administration, and the Tennessee Valley Authority. The regulatory impact analysis included EPA's draft methodologies for estimating facility compliance costs, benefits, economic impacts and energy market impacts. It also included preliminary estimates of facility compliance costs, facility-level energy and air emission impacts, economic impacts for various categories of facilities, a draft analysis of impacts on small businesses, a national cost estimate for one of the regulatory options, and draft benefits estimates from two of the watershed-level case studies (as described in previous status reports and further described below).

Project staff are continuing work to refine and expand the preamble and rule. They are also expanding and refining the supporting analyses and methodologies and, based to a large degree on these materials, developing the Technical Support Document and the Economic and Environmental Benefit Analysis Document for the proposal. For example, staff have been working to refine the model for analyzing impacts on the electricity generation market and the parameters that will be entered into the model to support EPA's final estimates of any facility closures and employment impacts of the proposal. Staff also are drafting an Information Collection Request (ICR) covering the reporting and recordkeeping burdens associated with the proposal, pursuant to the Paperwork Reduction Act.

Project staff have continued to make substantial progress during the last quarter on 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. The watershed case study reports contain: 1) an analysis of historical impingement and entrainment records for a specific facility; 2) an estimate of impingement and entrainment rates at other cooling water intake structures in the watershed where that facility is located; 3) an economic valuation of impingement and entrainment losses at all cooling water intake structures on that watershed; and 4) an estimate of the economic benefits of the Phase II rule for reducing impingement and entrainment at affected cooling water intake structures in that watershed. The Delaware Bay and Ohio River watershed case study reports are drafted. These case studies consist of over 145 pages and 180 pages respectively. The draft Tampa Bay watershed case study is almost complete.

Each of the facility-level case studies reports will vary to some degree, depending on the specific purpose of that particular facility-level case study. All the facility-level case studies will contain: 1) an analysis of historical records of impingement and entrainment at the facility; and 2) an estimate of the economic benefits of the proposed Phase II rule at the facility. Project staff continue to draft the reports for the seven facility-level case studies referred to in the last status report (located on the San Francisco Bay Delta, Mount Hope Bay, New England Coast, and the Hudson River). Since that time, project staff have determined they have sufficient information to complete two additional facility-level case studies for facilities located on the Great Lakes. Four of the facility-level case study reports are 95 percent complete. The remaining facility-level case study reports are from 50 percent to 80 percent complete.

Phase III

EPA project staff have been working on the initial impingement and entrainment sampling methodology for collecting actual impingement and entrainment data from low-flow facilities that is subject to a January 22, 2002 reporting milestone under the Amended Consent Decree. In addition, some of the work to develop various methodologies and analyses for the Phase II rule may be useful in developing the Phase III rule.

Status of Attainment of Consent Decree Deadlines and Milestones

EPA is on schedule to meet the deadline to propose the Phase II regulations by February 28, 2002. This is an extremely aggressive schedule. It will require EPA to receive and address all comments from other Departments and Agencies, complete a final preamble and proposed regulatory language, and complete the supporting analyses in less than seven weeks. The Division Director directly responsible for this project and I continue to closely monitor the staffing and financial resources allocated to support the timely development of the § 316(b) regulations.

With respect to the reporting milestones set forth in the Amended Consent Decree, EPA is on schedule to complete the initial impingement and entrainment methodology for the Phase III regulations by January 22, 2002.

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) 2001, which ended on September 30, 2001. EPA estimates that the Agency devoted 8.0 FTE to development of the Phase I, Phase II and Phase III rules in FY 2001. This figure is higher than the Agency projected in its April 12, 2001 report and, in part, reflects a decision by managers in the Office of Science and Technology (OST) to reassign personnel temporarily from other duties to support the § 316(b) rulemaking effort during the critical months prior to the Phase I final rule deadline. In addition, the employee from the State of Indiana, whom EPA described in the April 2001 report, worked on the project on a full-time basis beginning in January 2000 under the provisions of the Intergovernmental Personnel Act, effectively raising the total effort to 8.75 FTE. All of the key Agency staff assigned to the § 316(b) regulations worked a significant number of overtime hours in FY 2001. This overtime is not reflected in the above FTE estimate.

OST estimates that it expended $2.55 million in FY 2001 on contract support for the development of the § 316(b) rules. This figure is higher than the $2.2 million estimate in the April report. 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 2001, several purchases for the § 316(b) rulemaking project, and support for the state employee described above.

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 2002.

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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