EPA's Coal Ash Announcement Reflects Unfortunate White House Meddling in Rulemaking Process

Jul 04, 2010 | Updated May 25, 2011

EPA Administrator Lisa Jackson was in a tough position on coal ash. If you are African American and low-income, you have a 30 percent greater chance of living near a big pit of this toxic brew than a white American, so Jackson correctly decided that such an important environmental justice issue should be at the forefront of the Obama Administration's agenda. But Jackson was also taking on Big Coal, a special interest historically near and dear to swing voters in Ohio and Illinois. Nevertheless, this sturdy "eco-warrior," as she was recently dubbed by Rolling Stone, marched forward, right to the White House and the chilling influence of Cass Sunstein and the economists at the Office of Information and Regulatory Affairs.

Jackson's tough, but as yet secret, regulatory proposal arrived in crisp fall weather, only to be greeted by a tsunami of industry lobbyists, who visited and revisited the Office of Information and Regulatory Affairs. By the time the spring flowers were out, Jackson was forced to take a pass on getting hard-hitting regulation on a speedy path to implementation. After the long scuffle with OIRA, she instead announced that EPA was considering two strikingly different alternatives, thereby postponing any definitive action for at least six months and, far more likely, a year or more. Then, to add insult to injury, she stepped in between angry activists and OIRA, trying in vain to slap lipstick on a not particularly cute pig.

Jackson called her mammoth 563-page Federal Register notice a "proposed rule" but in every reasonably understood sense of that term, it is nothing of the sort. Instead, it has what we can call an "OIRA/industry proposal;" an "EPA/environmentalist" proposal; and a proposal so bad that it has no parents. Because EPA is actively considering two very different approaches and potentially a third, unimaginably bad idea, no concrete target emerged from this latest round of negotiation. Instead, EPA will almost certainly have to go back and get another round of public comment on a single approach before making a final selection. Or, as EPA announced haplessly: "Given the inherently discretionary nature of the decision, the complexities of the scientific analyses, and the controversy of the issue, EPA wants to ensure that the ultimate decision is based on the best data, and is taken with the fullest possible extent of public input."

Reading all this, you might think EPA had been studying this problem for a couple of years, ever since one billion gallons of coal ash sludge blanketed over 400 acres of the small town of Kingston, Tennessee a few days before Christmas 2008. But, in fact, EPA has noodled over coal ash for close to three decades, ever since Congress first instructed it to examine the problem. Showing any foolish optimists that Big Coal is far from dead, the agency is once more rocked back on its heels, studying, studying, and studying again.

The OIRA/industry proposal would defer to the states, allowing coal ash "surface impoundments" to be regulated under the same statutory provisions as apply to ordinary household garbage. If utilities wanted to continue to use existing sites for disposal, moderate cleanup would be necessary. If citizens were not satisfied with these low-key efforts, they would have to prove that these awesome pits in the ground pose an "imminent and substantial endangerment" to get better containment.

The good proposal, which Jackson and EPA almost certainly prefer, would treat the 140 million tons of beryllium, arsenic, mercury, and lead-laden ash generated each year as what it is--dangerous waste--unless it is recycled in a way that immobilizes these toxics by, for example, embedding the ash in concrete used to build roads. But EPA would stop short of labeling the coal ash a "hazardous waste." The biggest benefit of this approach would be more rigorous cleanup of existing facilities, which is why it is strongly opposed by industry.

A third alternative would allow future disposal to occur in garbage-like landfills but would have no cleanup requirements for existing facilities. EPA soft peddles this option, but OIRA demanded that it crunch cost-benefit numbers for it nevertheless. Ironically, all three alternatives show benefits that strongly outweigh costs, with the benefits of the toughest approach two and a half times larger than the OIRA/industry proposal. (One might expect that fact alone to persuade the cost-benefit fetishists at OIRA to embrace the proposal, but, it never seems to work that way.)

Utilities operate some 584 coal ash pits, euphemistically called "surface impoundments," by the government, and too many of these "have a great potential for loss of human life and environmental damage in the event of catastrophic failure," as EPA acknowledges on page 105 of its notice. Some 109 of the 584 have a "high or significant" hazard potential rating according to information the agency gathered pursuant to its Superfund toxic waste cleanup authority. Approximately 186 of the 584 were not even designed by a professional engineer. Generally designed to last for the typical operating life of a coal-fired boiler, about 40 years, loopholes in the law have allowed the boilers and the pits to limp on far past this lifespan. According to EPA, 56 of the 584 are older than 50 years, 96 are older than 40 years, and 340 are between 26 and 40 years old. Obviously, for millions of Americans living in close proximity to these aging catastrophes- in-waiting, the name of the game is cleanup.

I wouldn't want to take too many bets on which approach will survive at the end of the day, given the turmoil that has gotten us to this point. But even assuming that Jackson and her allies can take the boulder that dropped to the bottom of the Sisyphean hill and push it back up to the summit, it's clear that she has lost precious time, and her interim defeat sends a troubling message to other proactive agency heads.