Eye on OIRA: Is EPA About To Take a U-Turn on Coal Ash?

by James Goodwin | April 20, 2010

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 ...

Riding a New Wave: EPA Considers Dramatic Changes to CWA Enforcement

by Yee Huang | April 19, 2010
A recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is ...

Who Needs Regulation, Anyway?

by Matthew Freeman | April 16, 2010
The Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes. CEI has a problem with agency rulemaking altogether: Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the ...

Crane Safety Rule One Step Closer to Reality

by Ben Somberg | April 16, 2010
As the Pump Handle noted earlier this week, OSHA submitted its draft final rule on construction cranes and derricks to OMB on Friday of last week. It’s good news that the process is now moving along. The cranes and derricks rule has been a long saga, and it was one of the case studies in our report last year on the costs of regulatory delay. By OSHA’s estimates, 89 people are killed and 263 are injured each year in construction ...

Lautenberg's TSCA Bill is Up; Initial Reactions From Advocates

by Ben Somberg | April 15, 2010
Senator Frank Lautenberg today released the  "Safe Chemicals Act of 2010 ” -- a bill to reform the Toxic Substances Control Act. Representatives Rush and Waxman released a discussion draft of related legislation in the House. Here are reactions from Environmental Defense Fund, Environmental Working Group, Natural Resources Defence Council, and Safer Chemicals, Healthy Familes coalition. We'll have more on this in the coming days. ...

Mind the Climate Gap: New Study Highlights the Need to Design GHG Cap-and-Trade Policies to Improve Local Air Quality

by Alice Kaswan | April 15, 2010
In “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study ...

The Public Needs a Voice in Policy. But is Involving the Public in Rulemaking a Workable Idea?

by Bill Funk | April 13, 2010
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have ...

MSHA's Band-Aid Approach Turns Deadly

by Celeste Monforton | April 12, 2010
Cross-posted from The Pump Handle. Last month, the US Dept of Labor (DOL) and MSHA were celebrating the 40th anniversary of the Coal Mine Health and Safety Act.  Their proclamations said: “…this law represents a watershed moment in the improvement of occupational health and safety in the United States. It was the precursor to the Mine Safety and Health Act of 1977, which created MSHA, and it was the basis of the Occupational Safety and Health Act (OSH Act) of ...

Justice Stevens: Architect of Modern Environmental Law Doctrine

by Daniel Farber | April 09, 2010
Cross-posted from Legal Planet. When I sat down to write this blog posting, I started by going through my environmental law casebook and noting down the cases in which Justice Stevens had written the majority opinion or a major dissent.   When I got done, I was startled by the central role Justice Stevens had played in creating modern environmental law. I’ll explain that central role in a minute, but first, why I was startled?  Two reasons.  First, Justice Stevens still ...

Putting the Attack on the Maryland Law School Environmental Clinic in Context

by Ben Somberg | April 09, 2010
CPR President Rena Steinzor (former director of the University of Maryland’s Environmental Law Clinic) and Robert Kuehn, president of the Clinical Legal Education Association, have a post over at ACSBlog putting the recent attack on the independence of the Maryland clinic into the context of other such moves across the country. The Maryland legislature recently stepped back from an earlier threat to withhold funding to the clinic if it did not turn over private client information to the state. The ...

What Maryland Stakeholders Told Us About the State's Clean Water Act Enforcement Program

by Yee Huang | April 09, 2010
In preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. ...

We Have a First Drywall Ruling

by Ben Somberg | April 08, 2010
AP: A New Orleans federal judge on Thursday awarded seven Virginia families $2.6 million in damages for homes ruined by sulfur-emitting drywall made in China, a decision that could affect how lawsuits by thousands of other homeowners are settled. It remains to be seen how the plaintiffs can collect from Chinese companies that do not have to respond to U.S courts, although some have talked about getting orders to seize U.S.-bound ships and cargoes from the drywall companies. The ruling ...

New CPR Report Finds Maryland Failing to Enforce Clean Water Act

by Yee Huang | April 08, 2010
Today CPR releases a new report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short. The report, which CPR Member Scholar Robert Glicksman and I co-authored, details the results of an investigation of the Clean Water Act (CWA) enforcement program at the Maryland Department of the Environment (MDE). CPR provided a copy of this report to MDE, and its response (and CPR’s follow-up) is included as an appendix to the report. Overall, we found that state of Maryland ...

Group of AGs Urge Kerry-Graham-Lieberman to Not Preempt State Authorities on Climate

by Ben Somberg | April 07, 2010
Seven state attorneys general have written a letter this week, released today, urging senators Kerry, Graham, and Lieberman to retain key state authorities on combating climate change in their upcoming bill (The Hill, National Journal). The letter, from the AGs of California, Delaware, Maine, Maryland, Massachusetts, Rhode Island and Vermont, follows two recent letters (see ClimateWire, subs. required) from 14 senators and from 14 state environmental protection agencies that called for some similar steps. (Update: And here's an April 7 ...

Eye on OIRA: President Defied by President's Men; Sunstein and Orszag Violate Obama's Own Directive

by Rena Steinzor | April 07, 2010
The system of checks and balances devised by the Framers of the Constitution 220 years ago was all about the sharing of power. In practice, it makes for a messy flow chart, and lends itself to lots of inside-the-Beltway conversation about who’s in, who’s out, who’s winning and who’s losing. But as messy as the how-a-bill-really-becomes-a-law flow chart is, the structure within the White House itself usually features one constant: When the President says jump, staffers ask how high. Every ...

Massey's Don Blankenship is No Average Global Warming Denier; He's Also Operating an Unsafe Coal Mine

by Matthew Freeman | April 07, 2010
About a year ago in this space, I wrote a piece taking the U.S. Chamber of Commerce to task for its unhinged reaction to the Environmental Protection Agency’s then-nascent efforts to regulate greenhouse gas emissions. As an example of the bombast, I included a link to a speech made by Chamber board member Don Blankenship, head of Massey Energy, in which he denied climate change, compared those who disagree with him with Osama Bin Laden and called them communists and atheists, ...

West Virginia Coal Mine Disaster

by Ben Somberg | April 06, 2010
Twenty-five people have been killed in the coal mine disaster in West Virginia. At ABC News, Matthew Mosk and Asa Eslocker report on the safety history of the Upper Big Branch mine: The West Virginia coal mine where an explosion killed 25 workers and left another four unaccounted for in the worst mining disaster since 1984 had amassed scores of citations from mining safety officials, including 57 infractions just last month for violations that included repeatedly failing to develop and ...

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

by James Goodwin | April 05, 2010
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. ________________________________________ OIRA Meetings on Coal Ash, as of ...

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