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EPA/WATER

RIN: 2040-AE95

Publication ID: Spring 2011

Title: Criteria and Standards for Cooling Water Intake Structures
Abstract: Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA)for minimizing adverse environmental impacts. Phase II, for existing electric generating plants that use at least 50 MGD of cooling water, was completed in July 2004. Industry and environmental stakeholders challenged the Phase II regulations. On review, the U.S. Court of Appeals for the Second Circuit remanded several key provisions. In July 2007, EPA suspended the Phase II rule following the decision in the Second Circuit. Several parties petitioned the U.S. Supreme Court to review that decision, and the Supreme Court granted the petitions, limited to the issue of whether the Clean Water Act authorized EPA to consider the relationship of costs and benefits in establishing section 316(b) standards. On April 1, 2009, the Supreme Court reversed the Second Circuit, finding that the Agency may consider cost-benefit analysis in its decision-making, but not holding that the Agency must consider costs and benefits in these decisions. In June 2006, EPA promulgated the Phase III regulation, covering existing electric generating plants using less than 50 MGD of cooling water, new offshore oil and gas facilities, and all existing manufacturing facilities. Petitions to review this rule were filed in the U.S. Court of Appeals for the Fifth Circuit. In July 2010, the U. S. Court of Appeals for the Fifth Circuit issued a decision upholding EPA's rule for new offshore oil and gas extraction facilities. Further, the court granted the request of EPA and environmental petitioners in the case to remand the existing facility portion of the rule back to the Agency for further rulemaking. EPA expects this new rulemaking would apply to the approximately 1,200 existing electric generating and manufacturing plants. The Fifth Circuit also affirmed that EPA may consider costs in relation to benefits, but is not required to do so. Recently, EPA entered into a settlement with the plaintiffs in two lawsuits related to section 316(b) rulemakings. Under the settlement agreement, as modified, EPA agreed to sign a notice of a proposed rulemaking implementing section 316(b) of the CWA at existing facilities no later than March 28, 2011 and to sign a notice taking final action on the proposed rule no later than July 27, 2012. Plaintiffs agreed to seek dismissal of both their suits,subject to a request to reopen the Cronin proceeding in the event EPA failed to meet the agreed deadlines.
Agency: Environmental Protection Agency(EPA)	Priority: Economically Significant
RIN Status: Previously published in the Unified Agenda	Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes	Unfunded Mandates: Private Sector
CFR Citation: 40 CFR 122 40 CFR 123 40 CFR 124 40 CFR 125
Legal Authority: CWA 101 CWA 301 CWA 304 CWA 308 CWA 316 CWA 401 CWA 402 CWA 501 CWA 510

Legal Deadline:

Action	Source	Description	Date
Final	Judicial	Signature on final action per settlement agreement	07/27/2012
NPRM	Judicial	Signature on proposed rule per settlement agreement	03/28/2011

Timetable:

Action	Date	FR Cite
NPRM	04/20/2011	76 FR 22174
NPRM Comment Period End	07/19/2011
Final Action	07/00/2012

Additional Information: EPA Docket information: EPA-HQ-OW-2008-0667
Regulatory Flexibility Analysis Required: No	Government Levels Affected: Federal, Local, State
Small Entities Affected: Businesses	Federalism: No
Included in the Regulatory Plan: No
RIN Information URL: http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/index.cfm
Sectors Affected: 11193 Sugarcane Farming; 111991 Sugar Beet Farming; 211111 Crude Petroleum and Natural Gas Extraction; 211112 Natural Gas Liquid Extraction; 21221 Iron Ore Mining; 212391 Potash, Soda, and Borate Mineral Mining; 221112 Fossil Fuel Electric Power Generation; 221113 Nuclear Electric Power Generation; 221119 Other Electric Power Generation; 221121 Electric Bulk Power Transmission and Control; 221122 Electric Power Distribution; 22121 Natural Gas Distribution; 22133 Steam and Air-Conditioning Supply; 311221 Wet Corn Milling; 311222 Soybean Processing; 311225 Fats and Oils Refining and Blending; 311311 Sugarcane Mills; 311312 Cane Sugar Refining; 311313 Beet Sugar Manufacturing; 31214 Distilleries; 31221 Tobacco Stemming and Redrying; 312229 Other Tobacco Product Manufacturing; 31321 Broadwoven Fabric Mills; 31332 Fabric Coating Mills; 321113 Sawmills; 321212 Softwood Veneer and Plywood Manufacturing; 321219 Reconstituted Wood Product Manufacturing; 321918 Other Millwork (including Flooring); 321999 All Other Miscellaneous Wood Product Manufacturing; 32212 Paper Mills; 32213 Paperboard Mills; 322291 Sanitary Paper Product Manufacturing; 324199 All Other Petroleum and Coal Products Manufacturing; 325992 Photographic Film, Paper, Plate, and Chemical Manufacturing; 326192 Resilient Floor Covering Manufacturing; 326211 Tire Manufacturing (except Retreading); 326299 All Other Rubber Product Manufacturing; 32731 Cement Manufacturing; 331221 Rolled Steel Shape Manufacturing; 331222 Steel Wire Drawing; 331312 Primary Aluminum Production; 331315 Aluminum Sheet, Plate, and Foil Manufacturing; 331419 Primary Smelting and Refining of Nonferrous Metal (except Copper and Aluminum); 331492 Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum); 332211 Cutlery and Flatware (except Precious) Manufacturing; 332212 Hand and Edge Tool Manufacturing; 332323 Ornamental and Architectural Metal Work Manufacturing; 332439 Other Metal Container Manufacturing; 33251 Hardware Manufacturing; 332618 Other Fabricated Wire Product Manufacturing; 332919 Other Metal Valve and Pipe Fitting Manufacturing; 332999 All Other Miscellaneous Fabricated Metal Product Manufacturing; 333111 Farm Machinery and Equipment Manufacturing; 33312 Construction Machinery Manufacturing; 333315 Photographic and Photocopying Equipment Manufacturing; 333911 Pump and Pumping Equipment Manufacturing; 333922 Conveyor and Conveying Equipment Manufacturing; 333923 Overhead Traveling Crane, Hoist, and Monorail System Manufacturing; 336412 Aircraft Engine and Engine Parts Manufacturing; 33651 Railroad Rolling Stock Manufacturing; 339914 Costume Jewelry and Novelty Manufacturing; 54171 Research and Development in the Physical, Engineering, and Life Sciences; 61131 Colleges, Universities, and Professional Schools
RIN Data Printed in the FR: No
Agency Contact: Paul Shriner Environmental Protection Agency Water 4303T, Washington, DC 20460 Phone:202 566-1076 Email: Shriner.Paul@epamail.epa.gov Erik Helm Environmental Protection Agency Water 4607M, 1200 Pennsylvania Avenue, Washington, DC 20460 Phone:202 566-1049 Email: helm.erik@epa.gov