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Water: Cooling Water Intakes (316b)

Quarterly Status Report

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Johnson
U.S. District Court, Southern District of New York
No. 93 Civ. 0314
April 13, 2006

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 devoted significant efforts in this quarter to complete the Phase III rulemaking. In addition to drafting the necessary documents for EPA's final action on the Phase III Notice of Proposed Rulemaking, EPA prepared responses to comments received on the Phase III Notice of Proposed Rulemaking and Notice of Data Availability (NODA). EPA also worked on finalizing four supporting documents to the Phase III rule: the Economic and Benefits Analysis for the Final Section 316(b) Phase III Rule; the Regional Studies for the Final Section 316(b) Phase III Rule; the Technical Development Document; and the Information Collection Request (ICR). EPA also collected and indexed materials for the docket associated with the Phase III rule.

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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 Consent Decree. Pursuant to paragraph 2 of the Consent Decree, the next reportable deadline is that the Administrator must take Final Action with respect to the Phase III Regulations by June 1, 2006. There are no reportable milestones or deadlines in the first quarter of 2006. In the first quarter of 2006, 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 2006.

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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 2005 and the first quarter of calendar year 2006. There have been no changes in the estimates provided in the status report for the fourth quarter of calendar year 2005.

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 number of contract dollars that EPA plans to expend on the development of the regulations in Fiscal Year (FY) 2006, which ends on September 30, 2006.

The Office of Science and Technology (OST) estimates that the Agency will devote 5.1 FTE to the development of the Phase I, Phase II, and Phase III rules in FY 2006. This figure is lower than the FTE that the Agency devoted to the effort in prior years due to completion of the Phase II final rule. As in past years, key Agency staff assigned to the § 316(b) regulations also worked a significant number of overtime hours to meet consent decree obligations.

OST estimates that it will expend $1.7 million in FY 2006 on contract services to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) rules. This expenditure reflects a reduction in the expenditures necessary for the development of the § 316(b) regulations after completion of the Phase II rule and does not reflect changes in the priority the Agency has placed on the development of the § 316(b) regulations. This expenditure also reflects completion of the last phase of the § 316(b) rules in June 2006, three months before the conclusion of FY 2006.

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.

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


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