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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)
July 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

Phase I

On June 19, 2003, EPA published a final rule in the Federal Register amending the "Phase I" regulations addressing cooling water intake structures at new power plants and factories (68 Fed. Reg. 36749). The final rule clarifies the Agency's intent on three technical issues: velocity monitoring for certain facilities, authority to require additional design and construction technologies, and procedures governing requests for less stringent, alternative requirements. EPA originally published these corrections in the Federal Register on December 26, 2002, as a direct final rule and a companion proposed rule (67 Fed. Reg. 78948). 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 adverse comment and, on March 24, 2003, published a notice in the Federal Register withdrawing the direct final rule (68 Fed. Reg. 14164). The final rule addresses the adverse comments and the technical corrections will take effect on July 21, 2003.

Phase II

On March 19, 2003, EPA published a Notice of Data Availability (NODA) for the Phase II regulations in the Federal Register (68 Fed. Reg. 13522). The NODA presented a summary of significant new data EPA obtained following the April 9, 2002, proposal and discussed how EPA is using these data in new or revised analyses to evaluate regulatory options. The NODA also reopened for comment any issues raised by the proposed rule (67 Fed. Reg. 17122). The NODA provided for a 75-day comment period that ended on June 2, 2003. EPA received 51 sets of comments during the NODA comment period. All of these comments are currently available for review in electronic format on EPA's EDOCKET website and in hardcopy format at the Water Docket.

EPA staff reviewed all comments on the NODA prior to a meeting with the Assistant Administrator for Water held on June 26, 2003, to discuss the range of regulatory options for final action on the Phase II rule. EPA staff and contractors are now coding and entering comments on the NODA into an electronic format, which will allow EPA to sort and search the comments using key words, author, and subject matter codes when responding to comments. In this quarter, EPA staff and contractors also completed coding and entering comments on the April 2002 proposal. Other major efforts included: (1) refining methodologies for estimating potential facility compliance costs based on NODA comments; (2) conducting additional analyses of the potential economic impacts of several regulatory options; (3) collecting additional data to support ongoing analyses of ecological impacts and economic benefits of various regulatory options; and (4) preparing for a peer review of key components of EPA's ecological and benefit assessment methodologies. EPA staff and contractors also participated in and supported a "Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms," which was held on May 5 and 6, 2003.

Phase III

On April 4, 2003, EPA published a notice in the Federal Register announcing that the Agency had submitted a revised Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval (68 Fed. Reg. 16507). Revising the ICR will allow EPA to collect data from facilities in the offshore and coastal oil and gas extraction and seafood processing industries and continue seeking additional information on § 316(b) environmental studies conducted by questionnaire recipients. EPA received one public comment on the ICR. EPA responded to the comment and made appropriate revisions to the questionnaires. OMB approved the ICR on June 20, 2003 (OMB No. 2040-0213, EPA Form No. 1838.02). EPA now has authority to survey up to 762 new facilities in the offshore and coastal oil and gas extraction and seafood processing industries. We intend to distribute additional questionnaires in July and August of 2003.

During this quarter, EPA continued to seek 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 has conducted a preliminary review of data quality for industry-derived data characterizing cooling water intake structures for the offshore oil and gas industry, and entered relevant data into a database to facilitate analyses.

In the last quarter of 2002 and first quarter of 2003, EPA sent letters to 65 facilities under the authority of § 308 of the Clean Water Act, asking them to complete responses to EPA's detailed questionnaire and reminding them of their legal obligation to provide complete responses. During this quarter and the previous one, EPA worked with many of these facilities to resolve discrepancies or missing items in their economic data. All outstanding discrepancies and omissions in these facilities' economic data have been resolved to the degree necessary to support the Phase III rulemaking.

During this quarter, EPA has made progress in collecting information on impingement and entrainment at cooling water intakes and on developing methodologies for evaluating the ecological impacts and economic benefits of potential Phase III regulatory options. EPA also completed a draft report for its field sampling study of entrainment at six small-flow intakes (see status report of October 15, 2002).


Status of Attainment of Consent Decree Deadlines and Milestones

EPA is currently on schedule to meet the approaching milestones and deadlines set forth in the Second Amended Consent Decree to take final action on the Phase II Regulations by February 16, 2004; to hold an option selection meeting for the Phase III proposed regulations by May 14, 2004; and to propose Phase III Regulations by November 1, 2004. In the second quarter of this calendar year, EPA has not encountered any delays or obstacles in performing its obligations under the consent decree. EPA does not expect to encounter any such delays or obstacles in the third quarter of this year.

EPA met the milestone in the Phase II schedule requiring an option selection meeting with the Assistant Administrator or Deputy Assistant Administrator for the Office of Water no later than June 30, 2003. EPA staff and managers met with G. Tracy Mehan, the Assistant Administrator for the Office of Water, on June 26, 2003, and discussed the range of regulatory options for final action on the Phase II rulemaking. Two additional option selection meetings are planned.


Staffing and Funding of the Rulemaking Effort

Pursuant to paragraph 4(a)(4) of the Second Amended Consent Decree, this report provides an estimate of any changes to staffing and funding estimates provided in the quarterly reports for the fourth quarter of 2002 and the first quarter of 2003 under paragraph 4(b). There have been no changes in the estimates provided in those reports. We estimate we will spend at least $2.4 million in FY 2003 for the development of the § 316(b) rules.

Pursuant to paragraph 4(c)(iii) of the Second Amended Consent Decree, this report provides an estimate of the total number of FY2003 contract dollars that EPA had obligated to contracts through June 2003 for the development of the § 316(b) regulations. EPA estimates that the total number of FY 2003 contract dollars EPA obligated through June 2003 to contracts to develop these regulations is $1,830,296.

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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