Eye on OIRA: The 121st Day and Coal Ash Still Going to Pits in the Ground

Tomorrow will be the 120th day since the White House Office of Information and Regulatory Affairs (OIRA) began its review of the Environmental Protection Agency’s (EPA) star-crossed proposal to declare coal ash that is not safely recycled to be a hazardous waste. The number is significant because it marks the end of OIRA’s allotted review period for the proposal, under the Executive Order that governs OIRA.

The date will likely come and go without fanfare. By rights, OIRA ought to either release the proposal for public comment or return it to EPA for rewriting. You’d think OIRA would be eager to get the thing off its plate, since its staff have been compelled to sit through no fewer than 33 separate meetings on the subject in recent months, no fewer than 28 with industry lobbyists opposed to the rule. But I harbor no expectation of an announcement. It’s more likely that OIRA will just keep working to browbeat EPA staff into rewriting it to the point that the coal industry calms down.

Readers of CPRBlog may recall that coal-fired power plants, while providing half of the nation’s electric power, generate an astounding 136 million tons of toxic coal ash annually. They dump much of it into what are euphemistically called “surface impoundments,” but in fact are no more or less than big holes in the ground that remain open to rainfall from above and water seepage from below—hence the equally distressing labels “coal ash slurry” and “coal ash sludge.”

Coal ash contains arsenic, beryllium, chromium, lead, and mercury, metals that are extremely toxic in small amounts. You wouldn’t want the stuff on your skin, in your drinking water, on your farm land, or in your street. Yet that miserable predicament is exactly what befell the people of Kingston, Tennessee, who watched helplessly as 1.2 billion gallons of coal ash “slurry” inundated 300 acres of their town three days before Christmas 2008. (To add insult to injury, people who live within one mile of a coal ash impoundment are 30 percent more likely to be poor and minority.) Last week, EPA issued a battery of engineers’ reports on dozens of similar facilities, making clear that Kingston could happen again.

The Washington rumor mill has pronounced the draft rule in serious trouble, even as national environmentalists and grassroots activists in coal country hasten to organize a counteroffensive to industry’s overwhelming lobbying blitz. Remember in evaluating this state of affairs that EPA is nowhere near finalizing a regulation. It hasn’t even been permitted yet to publish a proposed regulation, so industry’s all-out campaign, and OIRA’s reaction to that pressure, are in response to a proposal that no member of the public has ever seen. With the exception of the Members of Congress who have publicly instructed EPA to stand down in an effort to curry favor with their business constituents, all of this sturm und drang is happening in secret.

Under the Executive Order, OIRA has 90 days to review a proposal, and can then take an additional 30 days, which OIRA announced it would do 29 days ago. OIRA and EPA are then left with four options:

• EPA can withdraw the proposed rule and, presumably, try to cut its own deal with industry;
• OIRA can return the rule to EPA for further work with its complaints spelled out in writing. (During the Bush II Administration, regulatory czar John Graham issued such “return letters” to bedraggled agencies with great enthusiasm, and this would hardly be EPA’s first trip to the OIRA woodshed);
• OIRA can deem the proposed rule “consistent with the Executive Order if changed”—we don’t think they are ready to do that;
• OIRA can deem the proposed rule “consistent without change.” As we’ve been saying, in our dreams.

And significantly, if OIRA doesn’t issue objections in writing within the 120 day period, the window closes, and EPA can simply move ahead without OIRA’s approval or disapproval, thanks very much.

The most preferred outcome here would be for OIRA to simply liberate the proposal. That’d free EPA to go ahead and issue the proposed rule, at which point industry and everyone else would get its chance to weigh in on its merits. The second best outcome would be for EPA Administrator Lisa Jackson to take the courageous step of publishing the proposed rule in the Federal Register, particularly if OIRA hasn’t met its deadline. As President Obama’s top official on the environment, Jackson has not just the right but also the responsibility to take that action unless instructed otherwise by the President himself.

If OIRA Administrator Cass Sunstein cannot bring himself to respect EPA’s expertise and legally mandated prerogatives, and if Jackson cannot bring herself to move forward without OIRA’s blessing, then at the very least OIRA should explain why it is holding the proposal hostage, and what issues it is vetting behind closed doors. We should expect no less from an administration committed to transparency.