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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - January 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
January 13, 2005

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

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 memo 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

EPA staff continued to expend significant effort preparing draft supporting documents for the proposed Phase III rule: (1) Technical Development Document; (2) Economic and Benefits Analyses Document; (3) Regional Analyses Document; and (4) Information Collection Request (ICR). EPA staff continued to revise the draft proposed rule and preamble language, analyses of engineering costs, economic impacts and benefits 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 and completed. EPA also collected, compiled, and indexed materials for the docket associated with the proposed Phase III rule.

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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 other reportable milestones or deadlines in the fourth quarter of 2004.

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 fourth quarter of 2004, 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 first quarter of 2005.

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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 substantial changes from 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) 2004, which ended on September 30, 2004. EPA estimates that the Agency devoted 9.1 FTE to the development of the Phase I, Phase II, and Phase III rules in FY 2004. This figure is the same as FTE effort the Agency projected in its April 14, 2004 report. As in past years, key Agency staff assigned to the § 316(b) regulations also worked a significant number of overtime hours in FY 2004. The noted overtime is not reflected in the above FTE estimate.

I estimate that the Office of Science and Technology expended $ 2.9 million in FY 2004 on contract services provided to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) rules. This expenditure is slightly higher than the $2.7 million estimate I projected in the April report.

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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