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Water: Cooling Water Intakes (316b)

Cooling Water Intake Structures - Section 316(b)


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

Phase I

As previously reported, in January 2002 numerous environmental groups (including plaintiff Riverkeeper, Inc.), two individual regulated entities, and movant-intervenor Utility Water Action Group filed petitions for review in various federal circuits challenging the final regulations for new facilities that employ cooling water intake structures. 66 Fed. Reg. 65256. These petitions have been consolidated in the Second Circuit and are now pending. Since the last report, a Manufacturers Intake Structure Coalition has also filed a petition for review of the rule, the two individual regulated entities withdrew their petition for review, and the Ocean Conservancy has joined with plaintiff Riverkeeper in their petition.

Phase II

On June 19, 2002, EPA published a Federal Register notice extending the comment period on the proposed rule to 120 days, ending August 7, 2002. 67 Fed. Reg. 41668 (June 19, 2002). As of July 10, 2002, EPA received comments from two entities.

In a concerted effort to respond to a multitude of questions concerning the administrative record that EPA developed to support the Phase II proposal, OST management and staff held a number of meetings and conference calls with industry representatives and plaintiffs in this matter. In these calls and meetings, EPA explained how the Agency calculated national benefits, how EPA used impingement and entrainment data from a facility to develop the loss estimates for each case study, and how EPA determined facility and national costs. To supplement these verbal discussions, EPA drafted several supporting documents including one that explained the methodology EPA used to calculate entrainment rates, two that provided specific examples of how EPA applied this methodology to the Delaware Bay and Tampa Bay case studies, and one that discusses the benefits transfer approach EPA used to estimate commercial fishing losses. EPA also made available a memorandum that explains how EPA calculated design intake flow for certain facilities, and electronic copies of numerous files from the Agency's case study and national economic analyses. In addition, OST staff responded to 22 pages of written questions that industry representatives submitted to EPA and are currently working on a response to six pages of questions submitted by the plaintiffs in this matter. EPA is placing all of these materials in the docket for public review.

Phase III

Last quarter, EPA stated that it was considering nine facilities for the collection of initial impingement and entrainment data. After OST staff and contractors visited each of these facilities in early April, EPA determined that sampling was possible at six of the plants. All six facilities are located on tidal or freshwater segments of the Delaware River or on tributaries to the Delaware. Sampling began on May 10, 2002, and is scheduled to conclude on July 26, 2002. EPA and its contractors are sampling each facility for two, five-day periods. As of July 10, 2002, EPA laboratory contractors have completed counting the organisms collected during the first sampling period at three of the facilities, sorted the organisms by life stage (e.g., eggs and larvae), and entered the data into an electronic database. EPA contractors are currently working to complete the organism counts from all samples collected to date and to complete a taxonomic identification of the organisms sampled at the first site. For this extensive sampling effort, EPA prepared a comprehensive Quality Assurance Project Plan which included Standard Operating Procedures for all major steps in the sampling program, from collection of the sample to identification of the taxa of the organisms.

OST staff have also begun an initial analysis of small entity impacts for facilities potentially covered by the Phase III proposal. The purpose of the small entity impact analysis is to determine the potential economic impacts of regulatory options on small entities. This effort involves analyzing the total number of entities potentially affected by the rule, the number of entities which are small businesses, the potential costs for facilities to comply with regulatory options, and the potential economic impacts of such costs. EPA is currently conducting outreach to small entities for the Small Business Advocacy Review panel that EPA anticipates will convene in late October in accordance with the requirements of the Small Business Regulatory Enforcement Fairness Act.

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. As reported in the last Status Report, EPA continues to believe that this is an extremely aggressive schedule that requires EPA to undertake key tasks on the Phase II rulemaking and the Phase III rulemaking at the same time. To reiterate, EPA expects that it will receive thousands of comments from more than one hundred entities on its Phase II proposal. Based on information gathered during the series of meetings and conference calls with industry representatives and plaintiffs in this matter, the Agency fully expects that it will need to publish a Notice of Data Availability (NODA) and review hundreds, if not thousands, of additional comments on the NODA. EPA staff will be considering these comments and analyzing all of the record information before the Agency in order to present options to senior EPA management for the final Phase II rule. 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.) EPA is also on schedule to complete an initial small entity impact summary by August 30, 2002. (See paragraph 3(c)(3) of the Amended Consent Decree.) EPA is also on schedule to complete a summary of major issues raised by public comments on the proposed Phase II regulations by September 27, 2002. (See paragraph 3(b)(5) of the Amended Consent Decree.)

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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