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Water: Cooling Water Intakes (316b)

Quarterly Status Reports: January 12, 2006

REPORT ON STATUS OF § 316(b) RULEMAKING

Riverkeeper, Inc. v. Johnson
U.S. District Court, Southern District of New York
No. 93 Civ. 0314
January 12, 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 published a Notice of Data Availability (NODA) on November 25, 2005, and reopened the comment period on the Phase III proposal for 30 days. The NODA summarizes significant data EPA received or collected in response to the November proposal and discusses how EPA may use this data in revising its analyses. The comment period closed on December 27, 2005. EPA is preparing responses to the four comments received on this NODA.

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. OMB approved the focus group ICR on August 3, 2005. EPA has completed ten 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

Pursuant to paragraph 2 of the Consent Decree, the Administrator must take Final Action with respect to the Phase III Regulations by June 1, 2006. EPA is currently on schedule to meet this deadline. Pursuant to paragraph 3 of the Consent Decree, EPA held an option selection meeting with the Assistant Administrator to discuss the range of regulatory options for final action on October 27, 2005. EPA has no further approaching Consent Decree milestones. Pursuant to paragraph 5 of the Consent Decree, EPA senior management met with Plaintiffs on December 2, 2005, to discuss EPA's quarterly status reports and the steps being taken by the Agency to perform its obligations and comply with the Consent Decree. In the fourth 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 first 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 in the information to be provided pursuant to paragraph 4(b). These changes are reported below.

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") 2005, which ended on September 30, 2005.

The Agency devoted 5.1 FTE to the development of the § 316(b) regulations in FY 2005. This is lower than the estimated 5.2 FTE provided in the April 15, 2005 report due to increased resources focused on litigation and implementation of the Phase II rule. As in past years, key Agency staff assigned to the § 316(b) regulations also worked a significant number of overtime hours in FY 2005. The noted overtime is not reflected in the above FTE estimate.

The Office of Science and Technology expended $1.5 million in FY 2005 on contract services provided to support engineering, economic, benefits, and statistical analyses for the development of the § 316(b) rules. This expenditure is lower than the $2.2 million estimate I projected in the April 15, 2005 report. This is because this figure does not include another $0.5 million-$0.7 million allocated in FY 2005 for economic and benefit analyses including contingent valuation study, fish population modeling, and market analysis, which is currently being spent in FY 2006, in addition to the sums allocated for 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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