Like Christmas Shopping Season, the Battle Over Rules at OIRA Begins Earlier and Earlier Every Year

When the Electric Power Research Institute (ERPI)—the research arm of the U.S. power industry—met with OIRA last month to discuss the various “beneficial uses” of spent coal ash from power plants, their timing was impeccable.  Or so it would seem.  On the day of the meeting, October 16, EPA submitted for OIRA review its pre-rule proposals regarding the regulation of coal ash disposal under the Resource Conservation and Recovery Act (RCRA).  In reality, the meeting demonstrates how eager regulated industries are to air their complaints to OIRA on rules they dislike, or in this case, expect to dislike.  The industry’s lobbyists earned their paycheck this time around, getting in to see their traditional champions at OIRA to lay the groundwork for protesting a rule that has not yet even reached the notice-and-comment stage of rulemaking.

Coal ash comprises all the solid waste that is left over when coal is burned to generate power.   It’s a large threat to the environment and public health, because it can contain varying levels of arsenic, mercury, radioactivity, lead and other toxic substances.  To make matters worse, coal ash disposal is left largely unregulated, so most power plants dispose of it in shallow holes or by building weak earthen walls around piles of the stuff.  Both methods result in toxic substances leaching into nearby surface and ground water systems.  The collapse of such an earthen wall in Kingston, Tennessee last December resulted in the release of 5.4 million cubic yards of coal ash into the Emory River.  The spill covered more than 300 acres, made three homes uninhabitable, and damaged 23 other homes, as well as roads, rail lines, and utilities.  The Tennessee Valley Authority estimates that cleanup will cost between $933 million and $1.2 billion and take two to three years to complete.

At issue in ERPI’s meeting at OIRA is EPA’s decision to revisit an earlier regulatory determination on how to address coal ash waste under RCRA.  In May of 2000, during the last days of the Clinton Administration, EPA determined that it would be appropriate to regulate at least certain types of coal ash waste as a hazardous waste under RCRA.  But the Bush Administration swept in and back-burnered the issue, and not until 2007 did the Bush EPA begin to take the first baby steps toward regulating coal ash waste – publishing for public inspection and comment new information and data on the management of coal combustion wastes that the agency would consider.  If you’re thinking that seven years seems like a long time, you’re right.  But in fact, EPA was required by RCRA to make the regulatory determination about coal ash waste by 1983.  So while the Bush Administration did its dead-level best to slow things down, the truth is that the process was 17 years behind schedule even before the Bushies started dragging their feet.  (For more about the costs associated with this kind of regulatory delay, see here.)

Now that the Obama EPA has taken up that matter, it has apparently identified three possible strategies, judging from a recent GAO Report.

The first is to maintain the status quo.  Because EPA has not formally determined coal ash to be a hazardous waste it is addressed through Subtitle D of RCRA, which seeks to encourage states to implement minimal solid waste programs.  That won’t move the ball forward very much, so it’s what the industry would prefer and what environmentalists vigorously oppose.

The second possible strategy is to regulate coal ash under Subtitle C of RCRA, which establishes a rigorous “cradle-to-grave” regulatory program for controlling hazardous wastes.  Industry opposes actually doing anything about the problem that might cost them some money, so opposes this.

The third strategy is a hybrid, in which some types of coal ash would continue to be regulated as a hazardous waste under Subtitle C, while other types would begin to be regulated as a non-hazardous waste under Subtitle D.  Specifically, EPA proposes that “wet” coal ash (ash buried in shallow holes or surrounded by weak earthen walls) be regulated under Subtitle C, whereas “dry” coal ash (ash disposed of in landfills) would be regulated under Subtitle D.  Industry sees this as the next best alternative to the do-nothing approach. Environmentalists are opposed because both wet and dry coal ash pose a threat to the environment and public health, making the wet vs. dry distinction artificial for this purpose.

So, why was ERPI giving a presentation to OIRA on coal ash waste?  Because regulation of this waste under Subtitle C would severely hinder the “beneficial use” of coal ash waste (which includes using the stuff as an ingredient for making concrete, as a structural fill material, and for mine reclamation)—a cheaper and potentially even profitable alternative for power plants looking to get rid of this troublesome waste.  Subtitle C regulations would prohibit some types of beneficial uses.  Moreover, the designation of coal ash waste as a hazardous waste might attach a stigma to those types of beneficial uses that are not prohibited.  But those are arguments industry ought to make to EPA, not to OIRA, and certainly not to OIRA before a rulemaking has even begun.

In all likelihood, the October 16 ERPI meeting is a prelude to what will be a big industry push to get OIRA to weaken EPA’s proposed rule, whenever it comes.  Indeed, less than two weeks after the meeting, representatives from different power companies met with OIRA, also to discuss EPA’s pre-rule proposals to address coal ash disposal.

The attention EPA’s pre-rule proposals have attracted from the industry is as impressive as it is disturbing.  The agency has not issued a Notice of Proposed Rulemaking (NPR), signaling the beginning of the traditional notice-and-comment process of federal rulemaking; indeed, it hasn’t even issued an Advanced Notice of Proposed Rulemaking (ANPR), in which it has formally announced the regulatory options that it is considering.  Through procedural steps like the NPR and ANPR, federal administrative law has created ample opportunities for interested parties to participate in the rulemaking process and to have their views heard.

But it’s telling that the industry took its case so early to OIRA.  Over the years, OIRA has given industry a friendly hearing, and that’s plainly what industry hopes it will get this time, even in the Obama era.  Will they?  Time will tell.