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    Cronin v. Browner
    U.S. District Court, Southern District of New York
    No. 93 Civ. 0314 (AGS)
    April 12, 2000

    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 status report concerning its actions to propose and take final action with respect to regulations under 316(b) of the Clean Water Act ("CWA").

    EPA has changed the format and content of this report in order to provide more information to the Court and the parties about the progress the Agency is making in developing regulations under 316(b) and about the Agency's ability to achieve the Consent Decree deadlines.

    OST Now Managing 316(b) Rulemaking Project

    In February of this year, the Office of Water shifted primary responsibility for the 316(b) rulemaking program from the Office of Wastewater Management to the Office of Science and Technology (OST). Geoffrey Grubbs, Director of OST, now has overall responsibility for managing the timely development of the 316(b) rules. OST also is responsible for developing effluent limitations guidelines and standards under the Clean Water Act pursuant to court-ordered deadlines. This move will allow EPA, at critical times during the development of the 316(b) rules, to utilize additional engineering, scientific, economic, and statistical expertise and resources that are resident in OST.

    Progress in Development of Rules Since Last Report

    Phase I

    EPA staff and contractors are now focusing their efforts on developing the Phase I (new facility) proposal by the court-ordered deadline of July 20, 2000. More specifically, senior officials in the Office of Water have held a series of meetings with staff to select regulatory options for that proposal and to provide direction for its final development. The Agency is now drafting regulatory and preamble language for the Phase I proposal, together with the supporting technical, environmental, and economic analyses. The Office of Water expects to send out the draft regulatory language and preamble and key portions of the economic analysis for broader review within the Agency in early May. Following review within EPA, the Agency plans to submit the proposal and economic analysis to OMB in June for review under Executive Order 12866. During OMB review, EPA will be continuing many tasks necessary to proposal of the Phase I rules, including completion of the requisite technical, environmental, and economic support documents.

    As EPA stated in the Declaration of J. Charles Fox, Phase I will cover newly constructed facilities employing cooling water intake structures. Phase I will not cover retrofit or expansion of existing facilities; these will be addressed in Phase II.

    Phase II

    As EPA stated in the last status report, the Agency received approval from the Office of Management and Budget (OMB) under the Paperwork Reduction Act to administer the Detailed Industry Cooling Water Intake Questionnaire. The detailed questionnaire includes a Short Technical Questionnaire. EPA began mailing the questionnaires to subject facilities in early January 2000. All questionnaires were mailed by January 27. Of the 639 short technical questionnaires mailed, 558 had been returned as of March 31. EPA is now conducting quality assurance review of the returned questionnaires and is preparing them for data entry. EPA expects that data entry for the short technical questionnaires will begin in early May. Of the 651 detailed questionnaires mailed, 63 had been returned as of March 31. Most of the respondents have until the end of April 2000 to return the completed questionnaire. EPA also continues to make progress on developing the watershed case studies. For example, the Agency is currently analyzing the impingement and entrainment data collected from its first case study site.

    Status of Attainment of Consent Decree Deadlines

    EPA is on track to meet the July 20, 2000 deadline to propose the Phase I rule. EPA has not experienced any significant delays in the development of Phase I proposal since the last report, and does not anticipate any such delays in the next 90 days.

    EPA is continuing to work toward proposal of the Phase II rule as quickly as possible. EPA continues to believe, however, that it will have great difficulty in developing a sound, defensible, and robust proposal for the Phase II rule by the current Consent Decree deadline of July 20, 2001. In accordance with the Court's opinion and order of March 27, 2000, EPA has contacted plaintiffs to resume negotiations with respect to the deadlines for final action on the Phase I rule and proposal and final action on the Phase II rule.

    Staffing and Funding of the Rulemaking Effort

    EPA has added another full time person to the 316(b) project team, over and above the augmented levels identified in the Declaration of Michael B. Cook and the last status report. Specifically, a supervisor in OST has joined the team full time to provide additional guidance and to assist the team in obtaining prompt feedback from management on issues requiring decision by senior officials.

    EPA's contract dollar level for development of the 316(b) rule remains at $2,000,000 for FY 2000. The Agency is confident that $2,000,000 is sufficient to meet all contractor requirements to support this rulemaking effort through FY 2000, which ends on September 30.

    The undersigned, Geoffrey H. Grubbs, 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 Consent Decree.

    Geoffrey H. Grubbs