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Cronin, et al. v. Browner

U.S. District Court, Southern District of New York

No. 93 Civ. 0314 (AGS)

January 26, 1996

Pursuant to paragraph 3(a) of the Consent Decree in the above-referenced matter, the U.S. Environmental Protection Agency ("EPA" or "the Agency") provides this First Quarterly Status Report concerning its actions to propose and take final action with respect to regulations under 316(b) of the Clean Water Act ("CWA").

Currently, EPA is in the study phase of the regulatory development process. The Agency is focusing primarily on the collection of data to help determine what is an "adverse environmental impact" and what is the "best technology available" ("BTA") to minimize such impacts under 316(b). The following discussion briefly summarizes the types of data collection and analyses that EPA has conducted during the past three months.

The main effort was the collection and analysis of existing information relevant to development of the regulation, including:

  • Past site-specific case studies ("demonstration studies") conducted by 316(b) permittees to demonstrate that their facilities' cooling water intake structures were not causing an adverse environmental impact.
  • Past determinations of BTA by 316(b) permitting authorities.
  • Cooling water intake monitoring reports required under National Pollutant Discharge Elimination System ("NPDES") permits issued under 402 of the CWA.
  • Reports on the availability and efficacy of control technologies.
  • Independent studies addressing impacts or control /mitigation measures (e.g., industry surveys, State and local ecological data bases, etc.).

In reviewing and analyzing the demonstration studies, EPA is attempting to determine: (1) whether significant impacts to biological communities actually occurred; (2) what specific methodologies were used to determine adverse environmental impact by cooling water intake structures; and (3) whether those methodologies were based on sound scientific principles.

EPA also continued to develop a survey questionnaire under 308 of the CWA to be sent to facilities that employ cooling water intake structures. The questionnaire will be used to (1) define the industries and types of facilities that should be the subject of this regulatory proceeding; (2) develop regulatory options for establishing BTA; and (3) perform economic and environmental analyses of the proposed regulatory options.

In addition to data collection and analysis, EPA has conducted outreach activities. For example, on November 28, 1995, EPA gave a presentation at the International Clean Water Conference in La Jolla, California (hosted by the Electric Power Research Institute). The presentation described the Agency's regulatory efforts to control impacts from cooling water intake structures under 316(b).

EPA employees, including staff working on the 316(b) regulatory proceeding, were on furlough from November 14 through November 19, 1995 and December 18, 1995 through January 7, 1996 during the broader government shutdowns. Contractor personnel likewise were instructed to stop work during the same period. In addition, Congress has not yet enacted a full year appropriation for EPA for fiscal year 1996, which began on October 1, 1995. The levels of funding available to EPA under the short term funding measures (continuing resolutions) that have been enacted in this fiscal year are substantially reduced from fiscal year 1995 levels. EPA will inform the Court and the parties if future furloughs or funding shortfalls make it impossible for the Agency to meet the requirements of the Consent Decree.

The undersigned, James F. Pendergast, is acting Director of the Permits Division of EPA's Office of Wastewater Management. The Permits Division has primary responsibility for discharging EPA's duties under the Consent Decree.

James F. Pendergast