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Water: Cooling Water Intakes (316b)

Quarterly Status Reports - REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Johnson
U.S. District Court, Southern District of New York
No. 93 Civ. 0314
October 12, 2005

Pursuant to paragraph 4(a) 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 second 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

EPA staff expended significant efforts in developing programming code for the fish population model, known as the "Population Projection Matrix." EPA may decide to use the model to estimate expected changes in harvest levels and fish population sizes. EPA indicated that we might evaluate the feasibility of such a population model to support an estimate of the national benefits of this rulemaking during the proposed Phase III rulemaking (69 FR 68510). This model is not intended to be used to determine whether an adverse impact is occurring on a local basis. EPA intends to publish a Notice of Data Availability to solicit comment on EPA's preliminary analysis using this model. This Notice has already been submitted to the Office of Management and Budget (OMB) for review.

The private costs of the Phase III rule are based on EPA's cost test tool, as described in the "Technical Development Document for the Proposed Section 316(b) Phase III Rule." EPA staff expended considerable effort in refining EPA's cost test tool, including supplemental operation and maintenance costs, updated facility level data, and performance data that was obtained since the 2004 proposed rule. EPA is also including this information in the 2005 Notice of Data Availability.

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 is now evaluating a stated preference survey in order to obtain non-use benefits for the Phase III rulemaking. EPA's approach to developing and implementing the survey requires two Information Collection Request (ICR) approvals and several accompanying Federal Register notices.

The first ICR concerns the use of Focus Groups to develop the survey instrument. The EPA published a Federal Register notice on November 23, 2004 (69 FR 68140), regarding EPA's plans to submit an ICR for Focus Groups. EPA published the proposed ICR on March 24, 2005 (70 FR 15079), requesting public comments and OMB review and approval. The comment period for this notice closed on April 25, 2005. OMB approved the focus group ICR on August 3, 2005. Since that date EPA has conducted five focus groups and 20 one-on-one interviews with individuals in order to refine the stated preference survey instrument.

EPA published a notice on June 9, 2005 (70 FR 33746) entitled "Willingness To Pay Survey for Section 316(b) Phase III Cooling Water Intake Structures: Instrument, Pre-Test, and Implementation." This notice is part of the second ICR in which EPA requests approval of the survey instrument and permission to conduct the survey. The notice's supporting statement contains an overview of EPA's sample frame, the planned econometric analysis, and a sample survey instrument.

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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). EPA attained the May 28, 2005 Milestone for summarizing the major issues raised by public comments on the proposed Phase III regulations. Pursuant to paragraph 5 of the Second Amended Consent Decree, Plaintiffs met with Senior career EPA management, including the new Director of the Office of Science and Technology, on Thursday June 2, 2005.

EPA is currently on schedule to meet the approaching milestones and deadlines set forth in the Second Amended Consent Decree. The next milestone is 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 third 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 fourth quarter of 2005.

The undersigned, Ephraim King, 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.

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

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