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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)
Oct 15, 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").

Status of Attainment of Consent Decree Deadlines and Milestones

EPA is currently on schedule to meet the deadlines 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 also is on schedule to meet approaching milestones set forth in the Amended Consent Decree.

As EPA has noted in past Status Reports, the deadlines in the Amended Consent Decree for developing the Phase II and Phase III Regulations are extremely aggressive ones that require EPA to undertake key tasks on the Phase II and Phase III Regulations in very tight time frames. Many of the specific activities to support decision-making on the Phase II and Phase III rules to be promulgated and proposed, respectively, in 2003 overlap with one another, such as economic analyses and benefits analyses. Outreach and communication with all interested parties on both rules is similarly overlapping which, in our experience, is extremely difficult to execute without confusion or loss of focus and quality.

EPA is currently able to meet the deadlines and milestones established in the Amended Consent Decree. Nonetheless, EPA and Plaintiffs discussed at length alternative strategies to best serve the public interest with regulations for Phases II and III, and agreed in principle that a revised schedule would better serve the public interest than EPA's continued effort to meet the current deadlines and milestones. Senior officials in the executive branch must review this agreement in principle. If they approve it, EPA and Plaintiffs expect to submit to the court a proposed Second Amended Consent Decree that would extend the deadlines for final action on the Phase II Regulations and for proposal and final action on the Phase III Regulations.

Progress in Development of Rules Since Last Report

Phase II

The comment period on the proposed Phase II Regulations closed on August 7, 2002. To date, 112 entities submitted comments totaling over 22,000 pages, including 297 attachments. Plaintiffs in this action, the Utility Water Act Group (UWAG), the Edison Electric Institute (EEI), PG&E National Energy Group, Entergy Corporation, PSEG Services Corporation, Detroit Edison Company, and the Electric Power Research Institute (EPRI) submitted extensive comments. For example, UWAG's comments included a 199-page main comment document and 16 attachments totaling 11,518 pages. PSEG's comments consisted of a 168-page main comment document and 15 attachments totaling 3,032 pages. A number of other trade associations also submitted comments, including the Large Public Power Council, the American Public Power Association, the Electric Supply Power Association, and the American Chemical Council, as did representatives of other individual companies potentially affected by the Phase II rulemaking, and other environmental organizations. EPA also received comments from the States of Alabama, Arkansas, California, Florida, Indiana, Louisiana, Maryland, Michigan, New Jersey, New York, Pennsylvania and Texas, and from the Department of Energy and the Tennessee Valley Authority.

EPA devoted significant effort to analyzing public comments on the Phase II proposal. On September 30, 2002, EPA completed a 49-page summary of the major issues raised by public comments on the proposed Phase II Regulations. See Notification of Attainment of Milestone, October 2, 2002. EPA staff and contractors are now further classifying the public comments on the proposal into categories of issues for entry into an electronic database to facilitate the Agency's responses to the comments.

EPA staff and contractors also worked to collect additional data and develop additional analyses to supplement the administrative record for the Phase II regulations. For example, EPA staff and contractors devoted a great deal of effort to gathering additional information on the cost of installing and operating various technologies such as wedge-wire screens, fish-return systems, and fine-mesh screens. Staff also prepared a draft outline identifying the issues, analyses, and data that EPA may discuss in a Notice of Data Availability (NODA) to be published in the Federal Register later this year.

Phase III

On July 30, 2002, EPA completed an "initial compilation of impingement and entrainment data" (i.e., initial version of database, with impingement and entrainment sampling information recorded in an electronic format for environmental impact analysis). See Notification of Attainment of Milestone, September 5, 2002. As explained in this notification, EPA only collected data on entrained biota and biota in ambient water because it was physically impossible to conduct impingement sampling at the six facilities where EPA collected data.

EPA devoted significant effort to analyzing the potential impacts that the Phase III rule may have on small entities. On August 30, 2002, EPA completed an "initial small entity impact summary" (i.e., an initial summary of potential impacts of regulatory options on small entities). See Notification of Attainment of Milestone, August 5, 2002. The purpose of the small entity impact analysis is to determine the potential economic impacts of regulatory options on small entities, as required by the Regulatory Flexibility Act, 5 U.S.C. § 601, et seq. As explained in this notification, EPA's initial summary included detailed information and analyses on small entities in each of the industrial categories identified in the definition of "Phase III Regulations" at paragraph 1 (f) (3) of the Amended Consent Decree (i.e., utility and non-utility power producers not covered by the Phase II Regulations, pulp and paper manufacturing facilities, chemical and allied products manufacturing facilities, petroleum and coal products manufacturing facilities, and primary metals manufacturing facilities). EPA's initial summary also included preliminary information and analysis of potential economic impacts on offshore and coastal oil and gas drilling facilities, and preliminary information on seafood processing vessels.

The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) generally requires an agency to follow certain procedural and analytical requirements unless the agency makes a certification, subject to judicial review, that its rulemaking will not have a significant economic impact on a substantial number of small entities. (Small entities include small businesses, small nonprofit organizations, and small governmental jurisdictions.) Unlike the Phase I and Phase II Regulations, EPA anticipates that some regulatory options for the Phase III Regulations may have a significant economic impact on a substantial number of small entities. Therefore, as required by SBREFA, EPA is preparing to convene a Small Business Advocacy Review (SBAR) Panel, which will consist of representatives from the Small Business Administration (SBA), the Office of Management and Budget (OMB), EPA's Small Business Advocacy Chair, and the Director of the Engineering and Analysis Division in the Office of Science and Technology. On September 23, 2002, EPA sent formal notification to SBA stating that the Agency is considering the possibility of convening a SBAR Panel to review the Phase III proposed regulations.

One of the statutory duties of a SBAR panel is to conduct outreach to small entity representatives and consider their comments. In August and September, EPA staff conducted extensive outreach and identified 14 potential small entity representatives (SERs) for the Phase III SBAR panel. On September 18, 2002, EPA staff distributed a detailed background document to potential SERs, to trade associations helping EPA identify SERs, and to SBA and OMB. The background document includes several preliminary regulatory alternatives for the Phase III Regulations and an assessment of the potential economic impacts of one of these alternatives on small entities. On September 27, 2002, EPA staff distributed supplementary materials describing the estimated costs of installing certain technologies at several facilities. On October 1, 2002, EPA managers and staff held an outreach meeting with potential SERs, trade associations, SBA, and OMB to review and discuss the outreach materials and seek comments that EPA would consider in developing a "Convening Document" for the SBAR panel.

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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