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Coal Ash Announcement Now Scheduled for May?

The EPA had projected an April announcement on the next step in regulating coal ash. But April came and went. The EPA now lists "05/2010" as the projected time for publication of a Notice of Proposed Rulemaking (NPRM) in the Federal Register.

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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.

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Eye on OIRA: Coal Ash Meetings Up to 42, or More Than Half of All OIRA Meetings on EPA Rules

Fans of The Hitchhiker’s Guide to the Galaxy have long celebrated the number 42 as the  answer to the ultimate question of life, the universe, and everything.” Now, the number 42 also happens to be the number of meetings that OIRA has hosted regarding EPA’s pending coal ash rule, as it works toward developing the Obama Administration’s answer to the ultimate question of how to regulate the disposal of this toxic waste.

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OIRA Meetings on Coal Ash, as of April 5, 2010

(Click links to see attendees and examine documents presented to OIRA staff.)

Parties Supporting EPA Proposal (13)

Parties Opposing EPA Proposal (29)

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50 OIRAs? Another State (New Jersey) Drinks the Regulatory Review Kool-Aid

It’s official: Centralized regulatory review is trickling down to the states. Last month, in one of his very first actions as the newly elected Governor of New Jersey, Chris Christie issued a pair of sweeping executive orders (no. 1 and no. 2) mandating centralized review of all state agency regulations to ensure that they are justified by cost-benefit analysis (CBA). The orders’ provisions mirror those of a controversial executive order issued by New York Governor David Paterson last August (for critiques of the Paterson order, see Rebecca Bratspies and Sidney Shapiro). New York and New Jersey join a growing number of states that employ some form of centralized regulatory review—a group that includes Arizona, Hawaii, Illinois, Oklahoma, Pennsylvania, Virginia, and Wisconsin. Will more states follow New York and now New Jersey by instituting their own version of the Office of Information and Regulatory Affairs (OIRA)?

Executive Order no. 1 creates the “Red Tape Review Group” and directs it to oversee “a new common sense approach to the adoption and promulgation of administrative rules and regulations.” The Order also suspends all proposed regulations for 90 days so that the Red Tape Review Group can review them. Executive Order no. 2 directs state agencies to review existing regulations to determine whether, among other things, they pass a CBA test. Though it's not completely clear (the orders are hardly sterling examples of quality legal draftsmanship), it appears that the Red Tape Review Group is supposed to oversee this review. The agencies must then rewrite or eliminate any rules that are “inefficient, needlessly burdensome, [or] that unnecessarily impede economic growth.” Executive Order no. 2 further directs agencies to design all future rules so that they “impose the least burden and costs to business, including paperwork and other compliance costs, necessary to achieve the underlying regulatory objective.”

Similar concerns with reducing paperwork burden and compliance costs for businesses motivated the creation of OIRA in the early 1980s. Since that time, OIRA has become one of the most powerful entities in the federal government, wielding significant influence over the substance and goals of regulations developed by federal agencies.

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Eye on OIRA: Sunstein Says Ambitious Efforts to Revamp Regulatory Review Tabled for the Time Being. What Does It Mean? Not Much. Just Ask Oscar the Grouch.

In a rare public appearance at the Brookings Institute Wednesday, Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein is quoted by BNA’s Daily Report for Executives saying that his ambitious plans for revamping Executive Order 12,866 – the document that governs much of the process of regulating, and particularly OIRA’s role in it –have been tabled for the time being as he and his staff study the lengthy comments presented by a broad range of industry and public interest groups. “So what we’ve been doing under the existing framework is working to implement the President’s agenda in a way that is also alert to the content of the comments we’ve gotten,” he explained.

Meanwhile, outside the event, a small group of demonstrators, including one dressed as Sesame Street character Oscar the Grouch, demonstrated against “Ash Sunstein,” whom they accused of working to kill an EPA proposal to regulate the disposal of toxic metal-laced coal ash that is now dumped into unlined pits in the ground. You can see a snippet of both the protestors and Sunstein’s remarks on YouTube.

The juxtaposition of the two events had that quirky edge that, well, makes democracy and free speech entertaining! Of course, Sunstein has had more than his share of free speech aimed at him since he was nominated. CPR Member Scholars raised concerns early on about his embrace of cost-benefit analysis, a tool that the Bush Administration used to water down or kill outright all kinds of needed protective regulations, particularly environmental ones, and we’ve stayed after OIRA since then. But Sunstein also came under figurative semi-automatic fire from Second Amendment “enthusiasts,” whose distortions of Sunstein’s views on animal rights led to a conservative blogosphere feeding frenzy.

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The Empire Strikes Back

Ordinarily, if an organization with the word “recycling” in its name said unkind things about the Center for Progressive Reform, I’d worry. But the other week, we got dinged by a newly launched outfit called “Citizens for Recycling First,” and I’m thinking it’s a badge of honor.

Before proceeding, let’s dwell for a moment on the mental images the group’s name conjures up. I’m thinking about plastic bins with recycling logos on their sides, filled by conscientious Americans with soup cans, beer bottles, and aluminum foil.

Perhaps you pull up a different mental image. But whatever it is, I’m pretty sure it’s not a big hole in the ground with toxic coal ash in it. That little bit of misdirection is probably just what the marketing types of the coal and coal ash industry had in mind when this latest front group went on line. And no doubt when John Ward, past President of the American Coal Council, became its chairman, it wasn’t to build a grassroots movement aimed at getting more Americans to turn over their yogurt containers to see what the recycling number is.

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Eye on OIRA: King Coal

Thirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creek gave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless.

Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia’s School of Mines when the dam broke, told the West Virginia Gazette: “The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They’d been evacuated many times before because of the fear of a dam failure.” Spadaro added, “I went through stacks and stacks of documents that went back into the ‘50s, and I think that, if somewhere along the way, there had been somebody within government willing to say, ‘Something really has to happen here,’ then those people would be alive and their families would be whole.”

When EPA Administrator Lisa Jackson took office in the first wave of Obama appointments, she decided to become that official. Correctly identifying the problem of negligent disposal of 140 million tons of coal ash, a type of mining waste even more toxic than the slurry that assaulted the West Virginians, as a first-order environmental justice issue—people living within a mile of a coal ash dump site are 30 percent more likely to be poor and minority than the mainstream population-- Jackson accelerated a 30-year effort to cope with the problem by EPA career staff. We think she produced a proposed rule that would designate the ash a hazardous waste if it is dumped in pits and exempting it if it is recycled safely by, for example, incorporating it into the concrete used to build roads. We can’t be sure, though, because before the rule was even published in the Federal Register for comment, it vanished into the bowels of the Office of Information and Regulatory Affairs at OMB, the traditional killing ground for such efforts. We have no idea when it might emerge or what it will say when it does.

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CPR Eye on OIRA: Transparency and Scrutiny for OIRA

The Obama Administration struck a blow for transparency last week with the launch of an online dashboard allowing users to keep track of what the White House Office of Information and Regulatory Affairs is working on. Good for OIRA for making such information so readily available. CPR plans to put it to good use. 

This month we began an initiative of our own, CPR’s Eye on OIRA project. As the name suggests, we plan to keep careful tabs on what OIRA’s doing, what regs it has before it, how long they’ve been there, which lobbyists are meeting with which OIRA staff, whether OIRA is sticking to its deadlines, and what the end result of OIRA’s involvement turns out to be. The hard truth is that, even in the Obama Administration, OIRA is where industry focuses its efforts to weaken needed regulations. OIRA seems to think that’s appropriate, which is why CPR intends to apply heightened scrutiny.

One example of the value of such efforts is the recent and ongoing dust-up over EPA’s effort to regulate coal ash. We’ve written a lot about it on CPRBlog, but the essential facts are that the coal power plant industry and coal ash reuse industries have been lobbying OIRA night and day for the last few months, trying to head off an EPA regulation on how to deal with coal ash that is not safely recycled. Right now the toxic stuff is stored in large outdoor “containment areas,” which sounds a lot better than “holes in the ground,” which is what they basically are. EPA sent a draft of a proposal to OIRA in October, and OIRA was supposed to spend no more than 90 days working it over. But OIRA extended its review period by 30 days – something the controlling Executive Order allows it to do. Then OIRA appears to have missed that deadline, too, something the Executive Order does not allow it to do, at least not without EPA asking it to hold the proposal hostage for a while longer.

During the Bush Administration, OIRA got in the habit of sitting on regulations just as long as it pleased, regardless of deadlines. That muscle memory persists, now 13 months into the Obama Administration. The coal ash deadline long gone, OIRA and EPA appear to be locked in negotiation over the proposal – a proposal that has not yet seen the light of day, by the way, an indication of why the push for transparency and scrutiny is both important and incomplete. 

We know as much as we do about the coal ash saga because we’ve been keeping track, piecing together tidbits of information. OIRA doesn’t send out a lot of press releases announcing that it’s delaying action, watering down regs, meeting with industry lobbyists and so on. It usually does that sort of thing in the dark. CPR’s Eye on OIRA project is intended to focus a little more light on the agency.

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Tennessee Coal Ash Cleanup Update: Where On-Target Is Still Depressing News

Just to give you an idea of the scope of the situation in Tennessee: More than 3 million cubic yards of coal ash were released into the waterways in the Kingston coal ash disaster in late 2008. This week comes news from cleanup officials that the removal of that waste is 70 percent complete. The EPA's PowerPoint shows that removal of the coal ash from the river is slightly ahead of forecast (slide 16).

So, just a half million cubic yards plus to go. Oh, but don't forget, says the Tennessean:

TVA plans to remove the more than 2 million cubic yards that lie just west of the river in a second phase that could take three years. The total cost of the cleanup effort could reach $1.2 billion.

Officials managing the cleanup can be forgiven for their enthusiasm at the progress to date, even though the road ahead spans several years. What’s not quite so forgivable is that the Tennessee Valley Authority’s Kingston plant put such inadequate protections against a spill in place to begin with.

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EPA's Cooperative Approach on Coal Ash Nets "Action Plans" From Industry -- But Here's What EPA Could Really be Doing With Existing Authority

In 2008 alone, coal-fired power plants produced some 136 million tons of coal ash waste – dangerous stuff, because it contains arsenic, cadmium, mercury, and a host of other toxins that are a significant threat to basic human health. Ironically, coal ash has been growing as a problem in recent years in part because better pollution-control devices capture more toxic contaminants before they go up power plant smokestacks. Last year, around 55 percent of the stuff was piled up in rickety “surface impoundments” – that is to say, holes in the ground – and other unstable structures at hundreds of disposal facilities across the country. In December 2008, we got a stern reminder of just how rickety, when a coal ash spill in Kingston, Tennessee demonstrated the catastrophic consequences that occur when these structures fail. Heavy rain that month combined with a leak in an earthen wall in one such “impoundment” sent 1.1 billion gallons of coal ash slurry sliding across 300 acres of land. The spill’s clean-up costs have spiraled to $1.2 billion—equal to about 10 percent of EPA’s entire budget.

In response to the Kingston disaster and the engineering problems that created it, EPA surveyed 219 disposal facilities containing 584 different impoundment structures to learn more about these structures. The agency released the results in September, and followed up earlier this month by announcing a set of action plans developed by the facilities with coal ash ponds themselves, explaining what they'd do to make their sites safer. Many facilities refused to cooperate in the survey, claiming that they could not answer some of the questions without revealing protected confidential business information (CBI).

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