On July 21, 2010, EPA issued a notice announcing its intention to request approval from the Office of Management and Budget to conduct a survey to determine the public’s willingness to pay for reducing the number of fish killed at cooling water intake structures (“CWIS”) at industrial facilities.
Clean Water Act § 316(b) requires EPA to promulgate regulations to ensure that the location, design, construction, and capacity of CWIS reflect the best technology available (“BTA”) to protect aquatic organisms from being killed or injured by impingement or entrainment. EPA divided this rulemaking into three phases. The first of these, the so-called “Phase I Rule,” governs all new industrial facilities that propose to withdraw 2 million gallons per day (“MGD”) of water with 25 percent or more of the water to be used for cooling.[1] In July 2004, EPA promulgated its “Phase II Rule,” which applied only to existing CWIS at “electric generating plants” and then only to those that are designed to withdraw at least 50 MGD and use at least 25 percent of their withdrawn water for cooling. However, EPA suspended the Phase II Rule on July 9, 2007 following a decision by the United States Court of Appeals for the Second Circuit holding that EPA had improperly interpreted BTA as “best technology available commercially at an economically practicable cost” and so engaged in cost-benefit analysis not allowed under § 316(b).[2] In 2009, however, the U.S. Supreme Court held EPA had permissibly relied on cost-benefit analysis in developing the Phase II rule.[3] EPA now anticipates combining Phases II and III into one rulemaking covering all existing facilities.
As explained by the Agency, the proposed survey “will allow EPA to estimate total benefits for the proposed regulatory options and fulfill Executive Order 12866 which requires the estimation of the potential benefits and costs to society of the rulemaking.” The proposed survey would ask respondents whether or not they would vote for policies that would increase their cost of living in exchange for specified changes in: (a) impingement and entrainment losses of fish; (b) commercial fish sustainability; (c) long-term fish populations; and (d) conditions of aquatic ecosystems. The intended sample size for the survey is 2,000 households.
Comments on the proposed information collection request will be accepted until September 20, 2010.
[1] Both environmental and industry groups sued EPA over the validity of the Phase I Rule. In 2004, the Second Circuit issued a decision that largely upheld the Phase I Rule, but remanded parts of the regulations. Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir. 2004) (“Riverkeeper I”).
[2] Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) (“Riverkeeper II”).
[3] Entergy Corp. v. Riverkeeper Inc., __ U.S. __, 129 S.Ct. 1498 (Apr. 1, 2009).
