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JULY 10, 1998

Cronin, et al. v. Browner
U.S. District Court, Southern District of New York
No. 93 Civ. 0314 (AGS)

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 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").

On May 8, 1998, EPA published a notice in the Federal Register (63 Fed. Reg. 25,473) announcing that it had submitted the information collection request for the screener questionnaire to the Office of Management and Budget (OMB) for review. Under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., OMB is to review and approve or disapprove the information collection request within 60 days of the date of its receipt, unless the time period for review is extended by OMB. As of this date, OMB is still reviewing the screener questionnaire.

On June 29, 1998, EPA held a day-long public meeting in Arlington, Virginia to discuss issues related to the 316(b) rulemaking effort. Over 111 individuals representing industry, environmental groups (including the lead plaintiff in this lawsuit), academia, other Federal agencies, the public, and the States of New York and Pennsylvania were in attendance. The focus of the meeting was a draft regulatory framework for assessing potential adverse environmental impacts from impingement and entrainment. The draft framework, which EPA made public in mid-June, may be viewed on EPA's 316(b) web site at EPA received a great deal of useful input on the draft framework at the meeting, both supporting and adverse. Agency staff are evaluating the draft framework in light of the comments made during the public meeting. In addition, EPA will be accepting written submissions through July 20, 1998, on issues discussed at the meeting. The Agency intends to hold a second public meeting in September to discuss other regulatory issues and options. EPA will announce the time and place of the meeting in the Federal Register.

EPA is in the final stages of preparing the five different versions of the detailed industry questionnaire. During the public comment period, EPA received 363 separate comments on the questionnaires from twenty-one different commenters. EPA met recently with the Utility Water Act Group (UWAG), at UWAG's request, to discuss UWAG's extensive comments on the questionnaires. EPA is currently preparing an information collection request under the Paperwork Reduction Act to obtain approval from OMB to administer the detailed industry questionnaire. EPA will publish a notice in the Federal Register announcing the submission of the information collection request to OMB.

During the past quarter, the Agency conducted site visits to four steam electric facilities located on the Ohio River. The purpose of the visit was to examine a variety of cooling water intake structures and the associated technologies in place to minimize adverse environmental impacts. The trip included a visit to the Ohio River Valley Sanitation Commission (ORSANCO), where EPA received a presentation on a number of past 316(b) studies.

Finally, EPA project staff have continued to brief Agency management on issues raised by this rulemaking effort, including preliminary regulatory options. As a result of these briefings, and in light of circumstances that have arisen since the Consent Decree was signed, EPA is reexamining its work plan for meeting the deadlines contained in the Consent Decree for proposing and taking final action with respect to a regulation under 316(b). EPA will contact counsel for the plaintiffs after the Agency determines (1) whether it believes it can still meet the Consent Decree deadlines; and if not, (2) how much additional time it believes it will need to ensure the development of a scientifically and legally defensible rule.

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