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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - April 2004

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Leavitt
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
April 14, 2004

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 during the fourth quarter of the calendar year 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

No regulatory development activities for Phase I new facilities were conducted during this reporting period. Final "Phase I" regulations addressing cooling water intake structures at new facility power plants and factories were promulgated on December 18, 2001. Clarifying amendments to the Phase I regulations were published on June 19, 2003 (68 Fed. Reg. 36749). EPA is currently evaluating options for responding to the partial remand of the Phase I rule in Riverkeeper, Inc. v. United States Environmental Protection Agency, 358 F.3d 174 (2nd Cir. 2004).

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Phase II

EPA devoted significant efforts in this quarter to complete the Phase II rulemaking addressing existing utilities and non-utility power producers that employ cooling water intake structures and withdraw 50 million gallons of cooling water per day or more from waters of the U.S. In addition to drafting the preamble and regulations, EPA prepared responses to comments received on the Phase II Notice of Proposed Rulemaking and Notice of Data Availability (NODA). EPA also finalized four supporting documents to the Phase II rule: the Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule; the Regional Studies for the Final Section 316(b) Phase II Existing Facilities Rule; the Technical Development Document; and the Information Collection Request (ICR). EPA also collected and indexed materials for the docket associated with the Phase II rule.

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Phase III

In this quarter, EPA continued to collect and analyze new information for purposes of developing the proposed Phase III rule. EPA acquired approximately 135 studies of impingement and entrainment (I&E) at potential Phase III facilities, and analyzed I&E losses based on the studies that satisfied EPA's data quality requirements. EPA also continued analysis of its data from the 2003 field study of entrainment at six potential Phase III facilities, and plans to complete its data analysis in the second quarter of 2004. In addition, EPA prepared for analyses of its sample surveys of offshore oil & gas extraction facilities and seafood processing vessels by completing data entry and preparing an initial data summary. EPA will begin detailed data analysis of these surveys later this month. Finally, EPA conducted new cost analyses for selected Phase III regulatory options potentially affecting electric power producers and manufacturing facilities in four major industrial sectors. Based on these cost analyses, EPA commenced the development of economic impact analyses. Cost analyses for offshore facilities are under development and will be completed early next quarter.

EPA also began drafting technical and economic development documents and parts of the preamble text.

Finally, as required under the Small Business Regulatory Enforcement Fairness Act (SBREFA), EPA has sought the advice and recommendations of small entities potentially affected by the Phase III rule. EPA conducted an initial outreach meetings with small entities on January 22, 2004. EPA, the Office of Management and Budget, and the Small Business Administration, convened a panel for small business advocacy review on February 27, 2004. The panel conducted a meeting with small entity representatives on March 16, 2004, and has also received written comments from small entity representatives about the potential impacts of Phase III requirements on small businesses. The panel will produce a report by April 27, 2004, summarizing the comments of small entity representatives and discussing regulatory alternatives that could minimize economic impacts on small businesses.

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Status of Attainment of Consent Decree Deadlines and Milestones

EPA took final action on the Phase II regulations on February 16, 2004. There were no other reportable milestones or deadlines in the first quarter.

EPA is currently on schedule to meet the approaching milestones and deadlines set forth in the Second Amended Consent Decree. The next milestone in the Phase III schedule is to hold an option selection meeting with the Assistant Administrator or the Deputy Assistant Administrator for the Office of Water no later than May 14, 2004. The next deadline is to propose Phase III Regulations no later than November 1, 2004. In the first 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 second quarter of this year.

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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 status reports for fourth quarter of calendar year 2003 and the first quarter of calendar year 2004. There have been no changes in the estimates provided in the status report for the fourth quarter of calendar year 2003.

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) 2004, which ends on September 30, 2004.

The Office of Science and Technology (OST) estimates that the Agency will devote 9.1 FTE to the development of the Phase I, Phase II, and Phase III rules in FY 2004. This figure is lower than the 10.8 FTE that the Agency devoted to the effort in FY 2003 due to completion of the Phase II final rule. As in past years, key Agency staff assigned to the § 316(b) regulations also worked a significant number of overtime hours to meet consent decree obligations.

OST estimates that it will expend $2.7 million in FY 2004 on contract services to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) rules. This expenditure is lower than the $2.85 million spent in FY 2003. This change reflects a reduction in the expenditures necessary for the development of the § 316(b) regulations after completion of the Phase II rule and does not reflect changes in the priority the Agency has placed on the development of the § 316(b) regulations.

At the conclusion of this quarter, EPA made some organizational changes affecting key staff assigned to the development of § 316(b) rules. As of April 4, 2004, the Cooling Water Intake Task Force was dissolved as a separate organizational unit. Development of the rules is now back under the management of Thomas Wall, Chief of the Chemical Engineering Branch in EAD, and Martha Segall has returned to her previous position as the Technical Coordinator for the project. Paul Shriner is the new Phase III rule manager, taking over for John Fox who left OST for a position in EPA's Office of Research and Development.

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 Second Amended Consent Decree.

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/s/
_____________________________
Geoffrey H. Grubbs, Director
Office of Science and Technology
U.S. Environmental Protection Agency


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