Posted on March 16, 2011 by Angus Macbeth
I am picking up the discussion on EPA’s proposed willingness to pay survey addressed to the fish mortality at once-through cooling water systems at electric power plants. Bill Green laid out the background of this issue in his February 17th post. The willingness to pay survey is designed to help EPA in writing its rule which will regulate cooling water intake structures at existing power plants. The Information Collection Request for the survey appeared in the Federal Register on January 21, 2011. EPA recently agreed to propose that rule by March 14, 2011, and it is understood that the proposed rule has been sent by EPA to OMB for review. The content of the proposed rule is not public, but the likelihood that it relies on a survey done after January 21 and before the end of February is very close to nil. So is it EPA’s plan to do the survey after the proposed rule is public and then use the results in writing the final rule? That’s hard to believe, since relying on significant new data generated by the Agency but not available at the time the rule was proposed is highly unlikely to pass muster under administrative law principles. Whatever EPA’s plan is here, it doesn’t follow the normal pattern of collecting the data, proposing the regulation, and then adjusting the final rule in light of comment from the public. I seem to remember something in Alice in Wonderland about proceeding in the reverse order.
Then one needs to look hard at the survey itself. It never makes clear to the public the basic biology that is at stake in fish mortality at power plant cooling water structures. Fish typically produce thousands of eggs over their lifetime. A single winter flounder can spawn 500,000 eggs each year and a single Atlantic cod can spawn 4-8 million eggs each year. Only two need to survive to maturity to maintain the population at its present size. Thousands of the early life forms will die – from starvation or being consumed by other fish or from being sucked into cooling water systems or from other causes. The number of cases where the mortality from cooling water systems has resulted in a demonstrable decline in mature fish populations is no more than a handful. Any cost-effective policy on cooling water intake structures at existing power plants would focus on those plants and not on power plants generally. Moreover, the policy would also take into consideration the remaining useful life of the plants in question. EPA’s survey does nothing to address these issues. Experts on willingness to pay surveys will undoubtedly have other and more telling criticisms of the survey, suffice it say that one may have serious doubts that it will produce information of real value.
It is now 39 years since the Clean Water Act was passed. Section 316 is one of the few sections in which EPA is directed to consider on an individual basis what the effect of particular industrial operations are on the aquatic biology. That is a serious and important issue. Assuming that EPA seriously intends to rewrite its Section 316 regulations on the basis of willingness to pay surveys, it may be 50 years after the passage of the Act before the Agency is able to get it all right.