Eye on OIRA: Is EPA About To Take a U-Turn on Coal Ash?

For the past 6 months, OIRA has hosted an all-out assault on EPA’s proposed coal ash waste rule, as a parade of representatives from King Coal and the coal ash reuse industry have walked in to attack any and every aspect of the hybrid approach the agency reportedly proposed. (Under the hybrid approach, EPA would regulate coal ash waste as a “hazardous” substance, unless it was dedicated to certain forms of beneficial use, in which case it would be regulated as “non-hazardous”.) Because these attacks were being conducted behind OIRA’s closed doors, it's impossible for the public to discern what, if any, effect they were having on EPA and its preferred hybrid approach. As OIRA’s review has stretched months beyond the maximum time limit allowed by Executive Order 12866, we've become more and more concerned.

An important story from Dawn Reeves of Inside EPA last week suggests things aren't looking good for the coal ash rule. Citing an unnamed but “informed” source, Reeves reports that later this month EPA will not issue a proposed rule identifying the hybrid approach as the agency's preferred regulatory option. Instead, the source states that the agency will release a proposal detailing several regulatory options, including the hybrid approach along with several new ones. The story only describes one of these new options, and it's a worrying one, leaving primary regulatory authority with the states.

EPA had said it aims to issue a Notice of Proposed Rulemaking (NPRM) this month. But instead of seeking public comment on the hybrid approach as the preferred regulatory option, Reeves' reporting suggests the agency is instead releasing a proposal that merely identifies for the first time a slew of new, likely weaker regulatory approaches. In essence, it signals that EPA might be taking a big U-turn on its rulemaking for coal ash waste.

If EPA issues a NPRM that only seeks to solicit public comment on which of the proposed regulatory options the agency should take on coal ash, that'd be a big step backward. EPA might need to tack on an additional notice-and-comment period, which would delay by at least a year the completion of a final rule that should have come out years ago. As these seconds of delay continue to tick away, the next Kingston-type disaster looms ever larger.

A watered-down NPRM would also increase the likelihood that whatever final rule EPA does adopt will be too weak to adequately address the problem of toxic coal ash waste. The hybrid approach would no longer be seen as EPA’s preferred regulatory option, making it unlikely that this approach will be adopted in the final rule. EPA might instead adopt a weaker approach, such as the one described in Inside EPA, that gives the states the lead in controlling coal ash waste, with the federal government retaining little oversight.

The whole episode reflects OIRA’s undue influence on the rulemaking process—and the undue influence that centralized regulatory review grants to regulated industries. King Coal and the coal ash reuse industries couldn’t wait for the public comment stage, so they gladly accepted the opportunity to begin attacking EPA’s proposed rule in the accommodating confines of OIRA first. If the Inside EPA story is correct, then it appears their efforts (in the form of 29 meetings at OIRA) will be rewarded.

Why have presidentially-nominated, senate-confirmed professionals run agencies like EPA if their well-informed, expertise-driven decisions are going to be trumped by the likes of OIRA, a behind-the-scenes agency that is overly sympathetic to the parochial concerns of regulated industry? Why provide for public participation in the rulemaking process if the only voices that count are those belonging to regulated industry at backroom meetings with OIRA?

I hope the Inside EPA story turns out to somehow be wrong. If it's right, the saga would prove to be a damning indictment of the current state of our regulatory system. In the meantime, we’ll have to see who wins this battle: regulated industry or the American people.