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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - January 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)
January 13, 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 19, 2002. Clarifying amendments to the Phase I regulations were published on June 19, 2003 (68 Fed. Reg. 36749).

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Phase II

Throughout much of the quarter, EPA worked closely with members of the 316(b) Final Agency Review (FAR) Workgroup to explain specific aspects of the draft rule and preamble, listen to any concerns related to details of the draft package, and, if possible, address these concerns by revising rule language, preamble text, and supporting documents. EPA staff and contractors also worked to finalize an independent peer review of three documents critical to the technical underpinnings of the rule, and incorporate peer review suggestions into the final FAR package. Following completion of FAR, EPA staff and contractors revised the draft rule and preamble language to reflect final comments received from the FAR Workgroup and to prepare the package for formal Office of Management and Budget (OMB) review. Formal OMB review was initiated at the end of the quarter.

Also during this quarter, EPA staff and contractors began drafting responses to the public comments received following the April 2002 proposal and March 2003 Notice of Data Availability (NODA). Approximately 166 comment letters which included a total of 3,200 separate comments were received for this rulemaking effort. In addition, EPA staff and contractors conducted supplemental engineering and benefits analyses, including sensitivity analyses, to further support major costing and benefits investigations.

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Phase III

In this quarter, EPA has continued to collect and analyze new information for purposes of developing the Phase III rule. First, EPA has acquired studies quantifying impingement and entrainment at 28 facilities withdrawing cooling water from freshwater sources, and has begun analysis of these and previously acquired studies. Thus far, EPA has summarized impingement and entrainment data for 15 locations and is in the process of evaluating data for another 21 sites.

In this quarter, EPA also conducted a sample survey of offshore facilities in the Oil & Gas Extraction industry and a sample survey of Seafood Processing Vessels. This involved completing the sample frames (lists of all facilities and firms in these industries), developing sampling designs, and selecting samples. EPA mailed the technical and economic surveys to selected facilities in October, and received many responses by the end of 2003. EPA will continue to receive and review surveys until early 2004. Data entry and analysis will occur in 2004.

EPA also verified raw data from its field study of entrainment at six facilities (conducted in early 2003), and mailed the data to the six facilities for review and comment. EPA's data analysis for that study will proceed in the first and second quarters of 2004.

In December, EPA completed cost analyses for selected Phase III regulatory options affecting electricity generators and manufacturing facilities in four major industrial sectors. Cost analyses for offshore facilities will be developed in 2004. EPA has initiated this process by conveying costs for offshore facilities to contractors who have begun economic impact analyses.

Finally, as required under the Small Business Regulatory Flexibility Act (SBREFA), EPA has conducted outreach to small firms potentially affected by the Phase III rule and has scheduled an outreach meeting and conference call with small firms on January 22, 2004.

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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 fourth 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 first quarter of the upcoming year.

There were no reportable milestones in the fourth quarter.

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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 quarterly reports for the fourth quarter of 2003 and the first quarter of 2004 under paragraph 4(b). There have been no changes in the estimates provided in those reports.

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) 2003, which ended on September 30, 2003. EPA estimates that the Agency devoted 10.8 FTE to the development of the Phase I, Phase II, and Phase III rules in FY 2003. This figure is slightly higher than the 10.0 FTE effort that the Agency projected in its April 15, 2003 report. EPA also estimates that it devoted a small percentage of an FTE to support the defense of the Phase I rule. In addition, a number of the key Agency staff assigned to the § 316(b) regulations worked a significant number of overtime hours in FY 2003. The defense of the Phase 1 rule and the noted overtime are not reflected in the above FTE estimate.

I estimate that the Office of Science and Technology expended $2.85 million in FY 2003 on contract services provided to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) rules. This expenditure is higher than the $2.4 million estimate I projected in the April report. Expenditures included $2.2 million of the obligated FY 2003 money and $650,000 of FY 2002 money reserved to ensure a smooth transition into FY 2003. As reported in the October 2003 Status Report, EPA had obligated $2.47 million FY 2003 contract dollars through September 2003. Approximately $270,000 of the FY 2003 obligated funds not spent in FY 2003 ensured continuity in funding for the project during the transition from FY 2003 to FY 2004. These monies were used to support the development of the § 316(b) rules in early FY 2004.

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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