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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)
January 14, 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

On November 22, 2002, EPA and the plaintiffs in Riverkeeper, Inc. v. Whitman jointly submitted a proposed Second Amended Consent Decree to the U.S. District Court, Southern District of New York, which the court signed on November 25, 2002. The Second Amended Consent Decree extends the deadlines for EPA to propose and take final action on regulations under § 316(b) of the Clean Water Act to minimize the adverse environmental impact of cooling water intake structures at industrial facilities.

Phase I

On December 26, 2002, EPA published a direct final rule in the Federal Register and companion proposed rule to make three minor changes to the final "Phase I" rule addressing cooling water intake structures at new power plants and factories. (67 Fed. Reg. 78948.) These minor changes clarify the Agency's intent regarding: 1) velocity monitoring for certain facilities; 2) the role of fisheries agencies in determining whether to require additional design and construction technologies or operational measures in certain circumstances; and 3) procedures for seeking less stringent, alternative requirements. The changes will take effect 90 days after publication unless EPA receives adverse comment during a 30-day comment period that ends on January 27, 2003. If EPA receives adverse comment, the Agency will withdraw the direct final rule, consider the comments, and take final action.

Phase II

During the past quarter, EPA staff and contractors focused on reviewing comments on the proposed rule, collecting and reviewing additional data, conducting new and revised analyses, drafting a Notice of Data Availability (NODA) and compiling its supporting documents. The NODA will present a summary of significant new data EPA has obtained since proposal and discuss how EPA is using these data in new or revised analyses to evaluate regulatory options. In particular, EPA collected additional data and revised its methodologies for estimating the potential costs, economic impacts and benefits of the rule. I anticipate that the NODA will be ready for signature in early March. This date is later than originally planned due to more extensive efforts than expected of EPA staff and contractors to gather new data and conduct additional analyses. In particular, the efforts to complete revision of facility cost estimates took longer than originally anticipated. However, EPA will still have adequate time to consider comments on the NODA prior to an option selection meeting with the Assistant Administrator or Deputy Assistant Administrator for the Office of Water to occur no later than June 30, 2003, in accordance with the next reporting milestone in the Phase II schedule.

EPA staff and contractors also completed development of an initial version of an electronic database that contains the public comments on the proposed rule classified into categories of issues. This database will support development of responses to comments on the proposal.

Phase III

As reported in the last status report, on October 1, 2002, EPA managers and staff held an outreach meeting with potential small entity representatives (SERs), trade associations, the Small Business Administration (SBA), and the Office of Management and Budget (OMB). The purpose of the meeting was to seek comments for a "Convening Document" that EPA might prepare for a Small Business Advocacy Review (SBAR) panel in accordance with the requirements of the Small Business Regulatory Enforcement Fairness Act. However, in light of the extension in the deadlines for the Phase III rule, EPA did not convene an SBAR panel, but intends to do so, if necessary, by February 2004.

On December 12, 2002, EPA published a notice in the Federal Register announcing that the Agency is planning 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 will allow EPA to continue to collect essential technical and economic data on potential Phase III facilities. (67 Fed. Reg. 76400.) A 60-day public comment period ends on February 10, 2003. In the interim, OMB has granted EPA a short term extension on the current ICR until March 31, 2003. This renewal will not effect the deadlines for development of the Phase III regulations established in the Second Amended Consent Decree.

EPA is continuing to review the quality and completeness of economic and financial data submitted by potential Phase III facilities in response to EPA's detailed questionnaire. To address missing or incomplete data, EPA sent letters under authority of section 308 of the Clean Water Act to 24 facilities reminding them of their legal obligation to complete their responses. EPA is now working with many of these facilities to resolve the discrepancies in their 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 the Phase III Regulations by November 1, 2004. EPA also is on schedule to meet approaching milestones set forth in the Second Amended Consent Decree. 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 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) 2002, which ended on September 30, 2002. EPA estimates that the Agency devoted 9.1 FTE to the development of the Phase I, Phase II and Phase III rules in FY 2002. This figure is slightly lower than the 9.5 FTE effort that the Agency projected in its April 12, 2002 report. However, as described in the April 2002 report, an employee of the State of Indiana worked for the Office of Science and Technology of EPA's Office of Water (OST) on the project on a full-time basis for five months in FY 2002, under provisions of the Intergovernmental Personnel Act (IPA). EPA also estimates that it devoted a small percentage of an FTE to support the defense of the Phase I rule. In addition, all of the key Agency staff assigned to the § 316(b) regulations worked a significant number of overtime hours in FY 2002. The IPA employee, the defense of the Phase 1 rule, and the noted overtime are not reflected in the above FTE estimate.

I estimate that OST expended $3.26 million in FY 2002 on contract support for the development of the § 316(b) rules. This figure is based on amounts billed to the Agency for contractor services provided to support the engineering, economic, benefits, and statistical analyses in FY 2002, and the amount of funds provided by OST under the IPA agreement to support the state employee described above. This estimated expenditure is a little lower than the $3.8 million estimate I projected in the April report. EPA obligated $3.91 million in FY 2002 to support the development of the § 316(b) rules. The $650,000 of obligated funds not spent in FY 2002 ensured continuity in funding for the project during the transition from FY 2002 and FY 2003. These monies will be used to support the development of the § 316(b) rules in FY 2003.

Pursuant to paragraph 4(b) of the Second 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 2003.

Pursuant to paragraph 4(c)(i) of the Second Amended Consent Decree, this report provides an estimate of the total number of FY2003 contract dollars that EPA had obligated through December 2002 for the development of the regulations. EPA estimates that the Agency has obligated $200,000 of FY 2003 funds through December 2002 for contract support for the development of the § 316(b) rules.

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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