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October 16, 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").

As stated in the last Quarterly Report, EPA published a notice in the Federal Register (63 Fed. Reg. 25,473) on May 8, 1998, announcing that it had submitted an information collection request ("ICR") for the screener questionnaire to the Office of Management and Budget ("OMB") for review under the Paperwork Reduction Act ("PRA"), 44 U.S.C. 3501, et seq. Following a series of discussions between EPA and OMB staff, OMB notified EPA's Office of Wastewater Management on September 21, 1998, that it had disapproved the ICR. In its Disapproval Statement, OMB said that EPA had not adequately "established that the information to be collected is necessary for the proper performance of the functions of the Agency, including that it will have practical utility," as required by the PRA. The Disapproval Statement directed EPA to submit further evidence "that significant adverse environmental impacts are occurring as a result of cooling water intake structures, evidence that point sources are not currently using best technology available to minimize such impacts, and evidence that a national regulatory approach of the type this information request is designed to support would be more effective at implementing the statutory requirements than the current approach relying on site specific information, best professional judgement of NPDES permit writers, and state regulations tailored to local conditions and concerns." The Disapproval Statement also raised issues concerning the burdensomeness of the screener itself.

EPA has concluded that the fastest way to obtain clearance for the screener is to resubmit it and the accompanying ICR to OMB, revised so as to address the points OMB made in the Disapproval Statement. The revised ICR is currently under review within EPA. EPA will publish a notice in the Federal Register announcing when the ICR has been resubmitted to OMB for review and approval. A 30-day period for public comment will follow.

EPA also is continuing to work on the ICR for the detailed industry questionnaire, described in previous status reports, for submission to OMB. However, the denial of the ICR for the screener questionnaire has significantly slowed progress on the ICR for the detailed survey questionnaire because EPA has needed to shift resources to address the issues posed by OMB with respect to the screener questionnaire.

EPA stated in the last Quarterly Status Report that it was reexamining its plan for meeting the deadlines contained in the Consent Decree for proposing and taking final action with respect to a regulation under 316(b), and that the Agency would 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. EPA does not believe it can propose such a regulation and take final action by the dates specified in the Consent Decree. EPA has communicated informally with plaintiffs and with counsel for the Utility Water Act Group ("UWAG") on this subject. EPA has not yet determined how much additional time it believes it will need, given the uncertainties that continue to surround the status of the screener and detailed industry questionnaires. EPA will inform plaintiffs as soon as it develops a new work plan, which it will endeavor to do as soon as possible, and thereafter will begin to discuss modification of the Consent Decree.

On September 10 and 11, 1998 EPA held another day and a half-long public meeting in Alexandria, Virginia, to continue its public outreach on issues related to the 316(b) rulemaking effort. The focus of this meeting was on technology, cost, and mitigation issues. Over 100 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 attended the meeting. A summary of the meeting should be available in late October, at which time it may be viewed on EPA's 316(b) web site at EPA will be accepting written submissions through October 30, 1998, on issues discussed at the meeting. An agenda showing the specific issues discussed also may be viewed on the Agency's 316(b) web site. On September 23-24, 1998, EPA also participated in a technical workshop sponsored by the Electric Power Research Institute on issues relating to the definition and assessment of adverse environmental impact. Counsel for the lead plaintiff in this action also attended the meeting.

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