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Water: Cooling Water Intakes (316b)

Cooling Water Intake Structures - Section §316(b)

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 11, 2003

Pursuant to paragraphs 4(a) (b) and (c) of the Second 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 March 24, 2003, EPA published a notice in the Federal Register withdrawing the direct final rule amending the "Phase I" regulations addressing cooling water intake structures at new power plants and factories. (68 Fed. Reg. 14164.) EPA published the direct final rule and a companion proposed rule on December 26, 2002. (67 Fed. Reg. 78948.) The direct final rule clarified the Agency's intent on three technical issues: velocity monitoring, authority to require additional design and construction technologies, and procedures governing requests for less stringent alternative requirements. The proposed rule invited comment on the substance of the direct final rule. The direct final and proposed rules stated that if EPA received adverse comment, the Agency would withdraw the direct final rule before it took effect. EPA subsequently received an adverse comment on the direct final rule and therefore withdrew it. EPA plans to address the adverse comments in a future action based on the proposed rule.

Phase II

During the past quarter, EPA completed a Notice of Data Availability (NODA) for the Phase II regulations. The NODA presents a summary of significant new data EPA obtained since the proposal and discusses how EPA is using these data in new or revised analyses to evaluate regulatory options. Major efforts included: (1) reviewing comments on the proposed rule; (2) collecting additional data on cooling water intake structure technology efficacy and entering the data into an electronic database format to facilitate further analyses; (3) collecting additional data and revising methodologies for estimating potential facility compliance costs; (4) recalculating potential facility compliance costs and economic impacts on the industry for several regulatory options; (5) collecting additional data and revising methodologies for estimating benefits for the regulatory options; and (6) drafting the NODA and supporting documentation. EPA staff and contractors also collected, indexed and reproduced, in hard copy and electronic format, supporting documentation for the NODA. EPA placed an additional 715 documents, totaling 25,000 pages, in the docket for the rulemaking. The Phase II docket now contains a total of 1450 documents (67,000 pages).

Assistant Administrator for Water G. Tracy Mehan III signed the NODA on March 12, 2003. It was published in the Federal Register on March 19, 2003. (68 Fed. Reg. 13522.) The NODA provides for a 75-day comment period ending on June 2, 2003.

EPA staff and contractors continued to enter comments on the proposed rule into an electronic database. Placing the comments into electronic format allows EPA to sort and search the comments using key words, author, and subject matter codes, which will assist EPA in responding to comments on the proposal.

During the past quarter, EPA staff and contractors also participated in and supported a steering committee that is organizing a two-day "Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms," scheduled for May 5 and 6, 2003, in Crystal City, VA.

Phase III

On December 12, 2002, EPA published a notice in the Federal Register announcing that the Agency intended to submit a request to renew the approved Information Collection Request (ICR) supporting development of the § 316(b) regulations to the Office of Management and Budget (OMB) (EPA ICR No. 1838.01, OMB # 2040-0213, expiration date December 31, 2002). The renewal would allow EPA to continue collecting essential technical and economic data on potential Phase III facilities. (67 Fed. Reg. 76400.) The ICR extension would allow EPA to clarify responses EPA received on questionnaires distributed in 1998 and 2000, and request that facilities provide information on existing 316(b) environmental studies. The ICR extension would also allow EPA to collect data from facilities in the offshore and coastal oil and gas extraction and seafood processing industries. The December notice provided for a 60-day public comment period ending on February 10, 2003. EPA received one comment on the proposed ICR.

EPA considered the comment on the ICR, made appropriate revisions, and prepared another Federal Register notice announcing that the Agency submitted the revised ICR to the OMB for review and approval. The Federal Register published the notice on April 4, 2003 (68 Fed. Reg. 16507). The notice provides for another 30-day comment period.

During this quarter, EPA received additional industry-derived data characterizing cooling water intake structures for the offshore oil and gas industry and began to enter it into a database to facilitate analyses. EPA continued to seek other data for vessels and platforms in the offshore and coastal oil and gas extraction and seafood processing industries, including data from the Department of Interior's Minerals Management Service.

EPA continues to review the quality and completeness of economic and financial data submitted by potential Phase III facilities in response to EPA's detailed questionnaire. EPA previously sent letters under the authority of section 308 of the Clean Water Act to 24 facilities asking them to complete responses to EPA's detailed questionnaire and reminding them of their legal obligation to provide complete responses. This past quarter, EPA sent similar letters to an additional 36 firms (involving 41 facilities). EPA continues to work with many of these facilities to resolve the discrepancies in their economic data.

Status of Attainment of Consent Decree Deadlines and Milestones

EPA is currently on schedule to meet the deadlines to take final action on the Phase II Regulations by February 16, 2004, and to propose Phase III Regulations by November 1, 2004.

EPA is also on schedule to meet approaching milestones set forth in the Second Amended Consent Decree. The next milestone in the Phase II schedule requires an option selection meeting with the Assistant Administrator or Deputy Assistant Administrator for the Office of Water no later than June 30, 2003. For reasons stated in the January 2003 status report, EPA published the Phase II NODA later than originally planned. However, EPA will still have adequate time to consider comments on the NODA prior to the option selection meeting.

There were no reportable milestones in the last quarter.

Staffing and Funding of the Rulemaking Effort

Pursuant to paragraph 4(b) of the Second 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) 2003. The Office of Science and Technology (OST) estimates that the Agency will devote 10.0 FTE to the development of the Phase I, Phase II and Phase III rules in FY 2003. This figure is approximately 10% higher than the 9.1 FTE assigned to the development of those rules in FY 2002. OST estimates that it will expend a total of $2.4 million in FY 2003 on contract support for the development of the § 316(b) rules.

Pursuant to paragraph 4(c)(ii) of the Second Amended Consent Decree, this report also provides an estimate of the total number of FY2003 contract dollars that EPA had obligated to contracts through March for the development of the § 316(b) regulations. OST estimates that the total number of FY 2003 contract dollars EPA obligated through March 2003 to contracts to develop these regulations is $884,429.

During the past quarter, EPA made several changes in key staff assigned to the development of § 316(b) rules. Sheila Frace, Director of the Engineering and Analysis Division in OST, left the Division to become the Director of the Municipal Support Division in the Office of Wastewater Management. Mary Smith is her successor. Deborah Nagle left to become the Industrial Permits Branch Chief in the Water Permits Division of the Office of Wastewater Management. In her new position, she will lead the implementation of the § 316(b) rules. Martha Segall is her successor.

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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