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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - July 2004


Riverkeeper, Inc. v. Leavitt
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)
July 20, 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 continued to evaluate 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). On June 16, 2004, Jim Hanlon, Director of the Office of Wastewater Management, and I sent a memorandum to the Water Management Division Directors in each of EPA's Regional Offices. These Regional Directors directly administer or oversee State administration of the Phase I § 316(b) regulations through permits issued under the National Pollutant Discharge Elimination System program. Our memorandum stated that EPA did not have the authority to allow the use of restoration provisions in the Phase I rule for new facilities. We directed EPA Regions not to employ restoration measures in permits as a means of compliance with the Phase I regulations.

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Phase II

Prior to publishing the Phase II regulations, EPA staff reviewed galley proofs prepared by the Federal Register to ensure the accuracy and consistency of the regulation and its preamble. During this review, EPA staff identified a number of minor errors in the regulatory text and preamble. Although corrections of these errors did not involve making any substantive changes to the regulatory text or the preamble, the Administrator re-signed the rule. The Federal Register published the final § 316(b) Phase II regulations on July 9, 2004. 69 FR 41576.

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Phase III

During this quarter, EPA concentrated its efforts on information collection, data analysis and an options selection process to support development of the proposed Phase III rule. EPA performed detailed analyses of engineering costing, economic impacts, and benefits valuation. In particular, EPA put significant efforts toward collecting and analyzing information on the current economic and financial conditions of manufacturing entities potentially subject to the Phase III regulations data in order to account for any changes in business conditions since the time of EPA's surveys of land-based manufacturers. EPA also conducted detailed engineering feasibility, cost, and economic impact analyses using its recent sample surveys of offshore oil and gas extraction facilities and seafood processing vessels. EPA also continued to collect and analyze studies of impingement and entrainment at potential Phase III facilities.

EPA continued to work with representatives from the Office of Management and Budget and the Small Business Administration to finalize a report documenting the results of the panel convened on February 27, 2004 for small business advocacy review. This panel and report are required under the Small Business Regulatory Enforcement Fairness Act (SBREFA). EPA continued to analyze the comments made by small entity representatives potentially affected by the Phase III rule. The final panel report, submitted to EPA's Administrator on April 27, 2004, summarizes the comments of small entity representatives and provides regulatory alternatives that could minimize economic impacts on small businesses.

On May 6, 2004, OST staff and managers met with the Acting Assistant Administrator for Water and other EPA offices to discuss the range of regulatory options for proposal of the Phase III regulations. In June, we met again with the Acting Assistant Administrator for Water, with Assistant and Regional Administrators from other EPA Offices and Regions participating in development of the Phase III regulations, and with the Deputy Administrator. Based on the results of the option selection process, project staff began developing proposed rule and preamble language and documenting supporting analyses and methodologies in Phase III support documents including: (1) Technical Development Document; (2) Economic and Benefits Analyses Document; and (3) Regional Analyses Document. Staff also began drafting an Information Collection Request (ICR) covering the reporting and record keeping burdens associated with the proposal, pursuant to the Paperwork Reduction Act.

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Status of Attainment of Consent Decree Deadlines and Milestones

EPA met the milestone in the Phase III schedule requiring an option selection meeting with the Assistant Administrator or Deputy Assistant Administrator for the Office of Water to discuss the range of regulatory options for proposal of the Phase III regulations by no later than May 14, 2004. EPA staff and managers held this meeting with Benjamin H. Grumbles, the Acting Assistant Administrator for the Office of Water, on May 6, 2003.

EPA is currently on schedule to meet the approaching milestones and deadlines set forth in the Second Amended Consent Decree. The next deadline in the Phase III schedule is to propose Phase III Regulations no later than 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.

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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 reports for the fourth quarter of calendar year 2003 or the first quarter of calendar year 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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Geoffrey H. Grubbs, Director
Office of Science and Technology
U.S. Environmental Protection Agency

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