Coal ash first real test of Obama commitment to health and safety regulation

A critical test of the Obama Administration’s commitment to reviving the Environmental Protection Agency (EPA) is teeing up behind closed doors at the White House. Once again, the Office of Management and Budget (OMB) is cast in the role of regulation killer, supported by a slew of state and other federal agencies that are polluters in this scenario. Other players include a nearly hysterical segment of the electric utility industry, which argues that labeling coal ash as a hazardous waste will prove prohibitively expensive, as well as a coalition of public interest activists that includes Robert Bullard, the father of the environmental justice movement. The story has ample drama: a provable case of racial discrimination, companies as haughty as any on Wall Street, and an appealing heroine, Lisa Jackson, the embattled EPA Administrator, who is the public face of this administration on the environment but, in a discordant replay of history, could be forced to fall on her sword by anonymous White House economists. (Remember Bush II’s Christine Todd Whitman, former governor of New Jersey, pushed to resign by the machinations of Vice President Dick Cheney? Jackson has less prominent opponents, but just as much on the line.)

An industry victory on the issue would suggest that presidential appointees, confirmed by the Senate and presented to the American people as accountable for everything from food and drug safety to toxic chemical exposures in the workplace, are not really in charge of their agencies but instead could be compelled to become puppets for a White House staff any time a powerful industry screams loudly enough.

The most recent chapter in this saga begins in Kingston, Tennessee three days before Christmas, 2008. A six-story-high earthen dam used to contain a coal ash waste pond at a power plant operated by the Tennessee Valley Authority (TVA) collapsed, releasing more than 1 billion gallons of jet black sludge laced with arsenic, cadmium, chromium, lead, mercury, selenium, and thallium. By volume, the spill was more than 100 times larger than the Exxon Valdez disaster, covering more than 400 acres of homes, farms, businesses, roads, rivers, and irreplaceable wetlands. (See table at end of this post listing the chemicals commonly found in coal ash and their negative health effects.)

According to EPA data, nearly 600 similar earthen coal ash dams are spread across 35 states, including 50 so-called “high hazard” dams holding back tens of millions of tons of coal ash waste. In 2009 alone, U.S. coal-fired power plants produced more than 136 million tons of coal ash waste — more than enough to fill the boxcars of a train stretching from Washington, D.C., to Melbourne, Australia. By 2015, industry will produce 175 million tons per year. And the kicker is that if you live within one mile of a coal ash disposal site, you are twice as likely to live below the poverty line as the average U.S. citizen and 30 percent more likely to be a person of color.

EPA has fiddled with the coal ash problem for a quarter of a century. In 1980, Congress enacted an exception to the tough federal statute directing EPA to regulate hazardous waste. So-called “Bevill wastes” were exempt from regulation until EPA studied their characteristics comprehensively. EPA was instructed to report back on coal ash by 1982. Throughout the 1980s and 1990s EPA extemporized, studying the problem, venturing the opinion that no strict regulation was needed, reversing itself and promising to regulate coal ash as a “contingent” hazardous waste, and ultimately shelving these efforts during the Bush II Administration. Years of work and millions of dollars later, we have amassed rock solid evidence that when coal ash waste is collected in unlined pits in the ground, it is extraordinarily dangerous to people, livestock, and wildlife, not to mention water quality. The record includes EPA studies and a report by a blue ribbon panel of scientific experts at the National Research Council. For an excellent summary of the issues, see congressional testimony by Earthjustice attorney Lisa Evans.

EPA Administrator Jackson, who has embraced environmental justice as one of her top priorities, promised to break this gridlock and propose a rule controlling the disposal of coal ash by the end of 2009. She sent the draft over to Cass Sunstein’s Office of Information and Regulatory Affairs (OIRA) at OMB. The draft was never released to any member of the public, although I suspect that industry lobbyists have a copy because they have already invented multiple toothless counter-proposals. As we have reported before in these pages, Sunstein’s staff commenced a marathon of meetings with coal industry executives, their paid experts and lobbyists, state highway administrators who want to spread the stuff in road beds, and other opponents of the EPA rule — 21 meetings at last count, more than on any other subject that has engaged OIRA’s attention for many years.

Obviously and sensibly embarrassed by how all this looks from the outside, the OMB issued a statement last week asserting something as silly as it is untrue: “By executive order,” the official fantasized, “if a stakeholder on a proposal asks to meet with OMB (OIRA), they are required to take the meeting.” Pressed on the point, OMB asserted that the executive order in question was EO 12866, which says nothing of the sort.

In fact, the order, issued by Bill Clinton in 1993 and continued through the Bush II Administration, is scrupulous about demanding that the lead agency in charge of a regulatory proposal (that would be EPA in this instance) afford the public an opportunity for “notice” (by publishing the proposal in the Federal Register) and “comment” (by receiving and reviewing all the written comments anyone may care to submit during a 30 to 90 comment period). Sometimes, lead agencies even hold public hearings on particularly controversial proposed rules. But this rule has not yet been proposed. If it had been, EPA would be obligated to hear from all the stakeholders in the debate, but not OIRA economists, until it had decided what it wanted to do. Not even the Bush Administration’s OIRA offered such a novel and absurd interpretation of its obligations. If it had, it would have been a green light to industry to schedule meetings 24/7 for the rest of the administration’s term, thus delaying action forever.

I wish Jackson the best of luck in this grueling battle, as should anyone who hopes that the nation’s environmental policy will be crafted with a minimum of special interest politics, by experts who have spent a lifetime studying the science and law of these issues. She does not deserve to get sandbagged by OIRA, and if she does, the American people, especially those living near coal ash catastrophes-in-waiting, will have much to lament. If OIRA establishes its primacy over EPA, we can look forward to many more such intrusions in the future — a very discouraging omen, indeed.

Human Health Effects of Coal Combustion Waste Pollutants