Mounting Coal Ash Spills Will Be OIRA’s Legacy

by Rena Steinzor
Michael Patoka

February 19, 2014

Two and a half weeks ago, a Duke Energy ash pond in North Carolina spilled up to 39,000 tons of coal ash and 27 million gallons of contaminated water after a stormwater pipe underneath the pond broke. The spill coated the bottom of the Dan River for 70 miles with gray sludge—five feet thick in some places. Now, investigators have discovered a second pipe underneath the pond that appears to have been leaking contaminated water into the river for a long time, with levels of arsenic 14 times higher than what would be considered safe for humans.

These spills were accidents waiting to happen. The dangers of toxic coal ash have been flashing loudly on the nation’s radar screen ever since 1.1 billion gallons of wet ash spilled from a ruptured dam in Kingston, Tennessee at the end of 2008. At the time, the EPA promised to quickly adopt new regulations that would protect the public against catastrophic spills from unstable ash ponds, groundwater contamination from unlined waste sites, and the spewing of dry ash into the air.

Fast forward five years: the spills continue (this is the third-largest coal ash spill in the nation’s history), and the regulations have yet to be finalized. There are plenty of villains in this case, from Duke Energy, which has refused to close its poorly maintained and leaking ash ponds, to North Carolina’s environmental department, which turned a blind eye to the warning signs.

But there’s another player with ash on its hands: the White House Office of Information and Regulatory Affairs (OIRA). Not only has OIRA been a major participant in the stalling of federal coal ash regulations that may have prevented this spill had they been in place already, but OIRA has also made it much more likely that the final rule, when it comes out, will be too weak to prevent disasters like this from happening on a regular basis.

How OIRA Delayed and Diluted the Rule

The EPA’s original proposal would have regulated coal ash as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), setting enforceable, nationwide standards for management and disposal that would phase out existing ash ponds. But before being released, the proposal had to pass through the deregulatory gauntlet of OIRA’s review process. Industry groups met with OIRA a staggering 33 times, a record even for the heavily lobbied OIRA. At the time, OIRA was headed by Cass Sunstein, who earned the nickname “Ash Sunstein” while OIRA held onto the rule for almost four months past its 90-day deadline.

By the time the White House finished its review in June 2010, the rule had become bloated with weak options that would regulate coal ash as “non-hazardous solid waste” under Subtitle D. Under these options, the EPA would issue federal guidelines on coal ash disposal and leave it up to the states to voluntarily adopt and implement them. In the absence of state implementation, the requirements could only be enforced through citizen suits. In many respects, the guidelines would be similar in content to the requirements under the strong option. But with no federal enforcement, compliance would be scattershot and many hazardous waste sites would continue to menace nearby communities. The final proposal was accompanied by a severely flawed cost-benefit analysis designed to make the weak options look attractive (more on this later).

The coal-utility and ash-recycling industries launched a massive lobbying campaign in Congress and in public to either urge adoption of OIRA’s weak option or to block the rule altogether. The EPA was flooded with 425,000 comments, and the enormous task of sifting through them became part-reason, part-excuse for delaying the final rule. It was one of many controversial rules that the White House postponed beyond the 2012 election for political reasons.

Now, as the result of a lawsuit brought by environmentalists, the EPA has finally committed to releasing the final rule by December 19, 2014—a full six years after the Kingston disaster.

Tomorrow, we’ll describe how the North Carolina spills exemplify everything that is wrong with OIRA’s weak option for the rule.

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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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