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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - April 2005

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Leavitt
U.S. District Court, Southern District of New York
No. 93 Civ. 0314
April 15, 2005

Pursuant to paragraphs 4(a) and (b) 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 first quarter of 2005 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

EPA published final "Phase I" regulations addressing cooling water intake structures at new facility power plants and factories on December 18, 2001 (66 FR 65256). EPA published clarifying amendments to the Phase I regulations on June 19, 2003 (68 FR 36749). A June 16, 2004, memorandum was issued to address the partial remand of the Phase I rule in response to Riverkeeper, Inc. v. United States Environmental Protection Agency, 358 F.3d 174 (2nd Cir. 2004) and directs all EPA Regional Water Management Division Directors not to employ restoration measures in permits as a means of compliance. EPA conducted no regulatory development activities for Phase I facilities during this reporting period.

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Phase II

EPA published final "Phase II" regulations addressing cooling water intake structures at existing power plants withdrawing 50 million gallons per day or more on July 9, 2004 (69 FR 41576). EPA conducted no regulatory development activities for Phase II facilities during this reporting period.

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Phase III

The comment period for the proposed Phase III rule closed on March 24, 2005. Approximately 40 interested parties submitted comments to the Agency representing a wide range of viewpoints. EPA staff are reviewing and compiling the comments and data received, and expect to remain on schedule for the upcoming May 28, 2005, Milestone.

As required under executive Order 12866, EPA performs economic impact and cost/benefit analyses of the section 316(b) regulation for Phase III facilities. Many public comments on the proposed section 316(b) regulation for Phase II facilities and the Phase II Notice of Data Availability suggested that a properly designed and conducted stated preference, or contingent valuation (CV), survey would be the most appropriate and acceptable method to estimate the non-use benefits of the rule. EPA published a notice on November 23, 2004 (69 FR 68140), regarding a contingent valuation survey that may be applied to the cost/benefit analyses of the Phase III rulemaking. This notice announced EPA's plans to submit an Information Collection Request (ICR) for this effort. EPA also continues to review and develop questionnaires for the upcoming "Willingness to Pay" survey.

EPA staff also expended significant efforts in the peer-review of a model developed by the National Center for Environmental Economics (NCEE). This fish population model, known as the "Population Projection Matrix," may be used to estimate expected changes in harvest levels and fish population sizes. EPA indicated that we might evaluate the feasibility of such a population model during the Phase III rulemaking (69 FR 68510).

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Status of Attainment of Consent Decree Deadlines and Milestones

EPA proposed Phase III regulations on November 1, 2004. The regulations were published in the Federal Register on November 24, 2004 (69 FR 68444). There were no reportable milestones or deadlines in the first quarter of 2005.

EPA is currently on schedule to meet the approaching milestones and deadlines set forth in the Second Amended Consent Decree. The next milestones are to prepare a summary of major issues raised by public comments on the proposed Phase III regulations no later than May 28, 2005, and to hold an option selection meeting with the Assistant Administrator or Deputy Assistant Administrator to discuss the range of regulatory options for final action by November 1, 2005. In the first quarter of 2005, EPA did not encounter 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 2005.

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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 are assigned to develop the § 316(b) regulations and the planned number of contract dollars to be expended on the development of the regulations in Fiscal Year (FY) 2005, which ends on September 30, 2005. EPA estimates that the Agency will devote 5.2 FTE to the development of the Phase III rule in FY 2005. This figure is less than the FTE effort the Agency provided in its April 14, 2004, report, because we finalized the Phase II rule during the past year.

I estimate that the Office of Science and Technology will expend $ 2.2 million in FY 2005 on contract services provided to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) Phase III rules. This expenditure is lower than the $2.9 million I listed in the April 2004 report, again reflecting promulgation of the final Phase II rule.

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, Director
Office of Science and Technology
U.S. Environmental Protection Agency


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