While EPA Delays Decision on Coal Ash, Industry and White House Busy With Backdoor Meetings on Issue, Documents Show

While the EPA announced Thursday that it was delaying a decision on issuing a proposed rule for coal ash, the White House Office of Information and Regulatory Affairs (OIRA) has already hosted 10 meetings with industry representatives in recent months on the issue.

The 10 meetings -- the most on any topic at OIRA so far in the Obama Administration, according to records on its website -- were completely outside of EPA's rulemaking process. In that process, once a proposed rule is issued, industries have ample opportunity to give comment and present their case. The EPA is required by law to examine and respond to those comments. No law requires the White House to hear industry pleas, let alone before the notice and comment period has begun.

Coal ash comprises all the solid waste from the burning of coal to generate power. Chock-full of toxic substances, coal ash presents a serious public health and environmental threat if its disposal is not carefully regulated. Unfortunately, that just happens to be the present state of affairs, as EPA has largely neglected the issue of regulating coal ash disposal for over 25 years. With virtually no regulatory oversight, power plants have been content to dump the spent coal ash in shallow holes or pile it up and then build weak earthen walls around the stuff in an inadequate attempt to keep it contained. The dangers of this latter method of disposal were tragically demonstrated a year ago Tuesday (12/22/08), when an earthen wall in Kingston, Tennessee collapsed, resulting in the release of 5.4 million cubic yards of toxic coal ash into a nearby river.

EPA seems poised to finally put an end to this era of neglect for coal ash disposal, however. Earlier this year, the agency began taking preliminary steps toward determining whether and how to regulate coal ash as a hazardous waste under the Resource Conservation and Recovery Act (RCRA), a federal law that establishes a rigorous “cradle-to-grave” regulatory program for controlling hazardous wastes.

The industry response to these preliminary steps has been premature, massive, and troubling.

Premature. Industry representatives began opposing EPA’s efforts even though the agency has not even initiated the official notice-and-comment rulemaking procedure established under the Administrative Procedure Act (APA). This procedure requires an agency like EPA to publish a “Notice of Proposed Rulemaking” (NPR) in the Federal Register, in which it announces its proposed rule. This notice must give at least a basic description of the proposed rule. Typically, the agency also uses the notice to announce a comment period—usually 30 to 60 days—during which interested parties can submit comments, data, or arguments for or against the proposed rule. At the close of the comment period, the agency must consider these comments as it works towards its final rule. The agency completes the notice-and-comment process by publishing a “Final Rule” in the Federal Register. In this final rule notice, the agency must provide a concise general statement of the rule’s basis and purpose. In addition, the agency must respond to any substantial issues raised in the comments, and state its conclusions on major issues of fact and policy.

Though not required by the APA, agencies will occasionally publish an “Advance Notice of Proposed Rulemaking” (ANPR) in the Federal Register. These advance notices typically state that the agency is considering initiating a rulemaking on a particular subject, and that it is inviting public comments on the specific regulatory options that it is contemplating for its proposed rule. As with the NPR, the ANPR is intended to provide an opportunity for interested parties to participate in the rulemaking process.

Significantly, EPA has not taken either of the above procedural steps with regard to the issue of coal ash disposal. Instead, it has merely sent a report to OIRA for its review of several regulatory options that it is considering for addressing coal ash disposal. It is completely inappropriate for OIRA to allow industry to become so involved before the rulemaking process has even officially begun. After all, as described above, the APA provides ample opportunities for these industries to participate in the rulemaking process and to make their views known. Even worse, OIRA is providing these industries with a forum in which they can try to intimidate EPA into adopting a weak regulatory approach for coal ash disposal—one in which coal ash is officially designated as a non-hazardous waste under RCRA and thus subject to only very weak state oversight. Indeed, these industries are using these meetings as opportunities to provide EPA with a preview of the fierce battle it will face if it attempts to take a stronger regulatory approach when the official rulemaking process does finally commence. (For what it's worth, OIRA has met with environmental groups on this issue only once, though that imbalance isn't the main point).

Massive. Industry officials met with OIRA 10 separate times during a 32-day span to discuss this one regulatory issue. Based on the meeting records on OIRA’s website, no other specific regulatory issue has attracted this much industry attention. (EPA’s controversial rule on greenhouse gas reporting, in comparison, only generated six meetings between industry representatives and OIRA.) The peak came on Thursday, November 12, when OIRA hosted three different meetings with industry officials to discuss coal ash disposal. Industry reps must have lined up outside the EEOB like teenagers waiting for the opening day showing of New Moon.

Many industries with a stake in the regulation of coal ash disposal got in on the action. The power plant industry and its affiliates met with OIRA on four occasions (see here, here, here, and here) to discuss everything from the “beneficial uses” of coal ash to the “high costs” of regulating coal ash as a hazardous waste to why states should be given primary responsibility for regulating coal ash disposal. The coal mining industry met with OIRA once to attempt to make the case that no regulation is necessary, since voluntary efforts to dispose of coal ash were working just fine. Finally, representatives of industries that “reuse” coal ash—such as to manufacture gypsum (e.g., for use in drywall), Portland cement, and sandblasting abrasive—met with OIRA on five separate occasions (see here, here, here, here, and here) to discuss why regulation of coal ash as a hazardous waste would harm their businesses.

Troubling. Documents presented by the meeting participants show that issues to be discussed at the meetings included the different negative economic consequences of regulating coal ash as a hazardous waste. But the most important issue wasn't even mentioned in those documents: What do the provisions of RCRA say about regulating hazardous wastes? In other words, what did Congress specify when it made the relevant law? For me, this should be the only issue under consideration.

That is one of the real problems with these OIRA meetings regarding regulations. They distract agencies from fulfilling the statutory obligations under which they operate. Instead of focusing on whether or not coal ash constitutes a hazardous waste for the purposes of RCRA, EPA must instead deflect attacks on the potential costs of doing what the law tells them to.

For the record, it seems pretty clear that coal ash constitutes a hazardous waste under RCRA. Specifically, RCRA directs EPA to regulate wastes if they exhibit certain hazardous “characteristics.” One of these characteristics is “toxicity.” Given all of the toxic substances that coal ash contains (e.g., arsenic, mercury, radioactive materials, and lead), there seems to be little question that coal ash constitutes a hazardous waste.

Under the terms of RCRA, however, consideration of the potential costs of regulating a particular type of waste has no relevance to the determination of whether or not that waste is hazardous. If the power plant, coal mining, and coal ash reuse industries don’t like it, they need to take their case to Congress to try to have RCRA amended. In the meantime, President Obama should tell OIRA to stop providing these industries with a forum in which they can excoriate EPA for the costs of a rule that has not even been proposed yet. Instead, OIRA should allow EPA to get back to the important work of actually producing a proposed rule, at which time industry can participate in the standard notice-and-comment process like everyone else.