The Delays Get Delayier: The Sad First Year of EPA’s Coal Ash Proposal

Before the Fukushima Daiichi nuclear disaster, before the BP oil spill in the Gulf of Mexico, and before the Upper Big Branch mine disaster, there was the TVA coal ash spill in Kingston, Tennessee. It was at Kingston, during the early morning hours on December 22, 2008, that an earthen dam holding back a 40-acre surface impoundment burst, releasing one billion gallons of inky sludge. The Kingston coal ash spill taught the American public about the catastrophic costs that can accompany so many types of large scale energy development; its aftermath continues to teach us that instituting the necessary reforms for protecting people and the environment against similar catastrophes in the future doesn’t come easy or quick.

Today marks the one-year anniversary since the EPA released its proposed rule for controlling the disposal of coal ash, a toxic byproduct of burning coal to produce energy that contains harmful chemicals like arsenic, lead, and mercury. That announcement came fully six months after the EPA had sent an initial strong proposal (October, 2009) to the Office of Information and Regulatory Affairs; OIRA then held the initiative, beyond its authorized time limit, conducting literally several dozen meetings, mostly with industry lobbyists, on the issue. When OIRA released the edited version and the EPA announced the proposal in May of 2010,  CPR president Rena Steinzor lamented that the proposal—actually, a co-proposal of two strikingly different approaches to regulating the waste—seemed calculated more to “postponee any definitive action for at least six months and, far more likely, a year or more” than to quickly and effectively resolve this looming threat to public safety and the environment. The circumstances of the past year have borne out this prediction; if anything, things may be far worse than anticipated.

Under intense lobbying from industry, and its ideological allies in Congress, the EPA has spent the past year dragging its heels on finalizing the coal ash rule, further delaying the day of regulatory reckoning for this harmful waste.   (In its most recent regulatory agenda, the agency downgraded the rule to “Long-Term Action” status with the date of final action listed as “To Be Determined.”) The problems began with the mealy-mouthed proposal itself, which raised more questions about whether and how to regulate coal ash than it endeavored to answer. To make matters worse, the cost-benefit analysis for each of the co-proposed options was dominated by a controversial application of behavioral economics, which concluded that regulating coal ash as a “hazardous waste” would impose a stigma effect on the recycling of coal ash, creating hundreds of billions (that's with a B) of dollars in “negative benefits.” The premise was preposterous, but industry got what it wanted: a cost-benefit analysis that purported to show that a tough coal ash rule could be a huge net drain on society. Needless to say, this rulemaking package provided plenty of fodder for public comment, and that’s precisely what the EPA got. By the time the comment period ended on November 19, 2010, the agency found itself inundated with more than 450,000 comments. Because of the sheer volume of comments the EPA received, the agency’s administrator Lisa Jackson told a House congressional committee that the agency would require a lot of time to review all the comments, and thus would not be able to issue a final rule during 2011. Since then, an EPA official, Sam Napolitano, reportedly said the agency was "thinking more towards the end of 2012 into 2013."

As if that wasn’t bad enough, last month during a House Energy and Commerce Committee hearing the EPA publicly committed (see Inside EPA for more) to launching an entirely new—and entirely gratuitous—public comment period on new data the agency has received during the comment period relating to the agency’s risk analysis and cost-benefit analysis for the rule. This new comment period will allow regulated industry to re-litigate their tired and baseless arguments about how coal ash waste isn’t harmful to people and the environment (it is) and how regulating coal ash disposal will be too costly (it won’t), and it will delay unnecessarily the rulemaking process, but it won’t improve the quality of the EPA’s final rule.

In the first act of this tragedy, OIRA played the villain, using regulatory review and cost-benefit analysis to delay and dilute this critical. So far, the second act lacks a courageous hero. The Obama Administration seems reluctant to play this role, fearful that congressional Republicans will criticize his actions as “anti-jobs” or “anti-economic growth.” But President Obama needs to engage these attacks head on, and stand up forcefully for policies that are “pro-environment” or “pro-public safety.” Decisive, urgent action on a final coal ash rule can help him do just that.