                                MEMO TO RECORD

Date:		5/16/2014
To:		CWA Section 316(b) Existing Facility Rulemaking Record
From: 		Paul Shriner, PhD., U.S. EPA, Office of Water, OST
Subject:	Late Public Comments

In the NPDES Cooling Water Intake Structures at Existing Facilities and Phase I Facilities proposed rule (76 FR 22174-22288; April 20, 2011) EPA initially provided a 90-day public comment period, which was subsequently extended to 120 days in a reopening public comment notice based on requests by various stakeholders for additional time to submit comments. (76 FR 43230-43231; July 20, 2011). The reopening public comment period notice expressly stated that "[c]omments on the proposed rule, which was published April 20, 2011, at 76 FR 22174, must be received on or before August 18, 2011." (76 FR 43230). EPA also issued two Notices of Data Availability (NODA) in mid-June 2011 that described flexibilities EPA considered as part of the impingement mortality limitations (77 FR 34315-34326; June 11, 2012) and that described the preliminary results of surveys of households' willingness to pay for incremental reductions in fish mortality (77 FR 34927-34931; June 12, 2012). Each of these NODAs expressly provided for a 30-day public comment period. (77 FR 34315; 77 FR 34927).

Despite the clear deadlines for public comment and the additional time provided for the submission of comments on the proposed rule, EPA has received public comments on the proposed rule that are late (i.e. were received following the published deadlines) including some that were received at an extremely late stage of the rulemaking process, well after the close of all comment periods. As the Agency has previously indicated in response to comment, EPA has no legal obligation to respond to such late comments. See e.g., Personal Watercraft v. Dept. of Commerce, 48 F.3d 540 (D.C. Cir. 1995). Nevertheless, EPA has attempted to respond to these comments to the extent possible given the schedule for the rule.


