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Gary D. Bass, Ph.D.

Gary D. Bass, Ph.D.

Posted: April 2, 2010 12:14 PM

On Dec. 22, 2008, an earthen dam holding back a pond of coal ash in Kingston, Tenn., broke, sending 5.4 million cubic yards of toxic goo cascading across the landscape. That's enough to fill the White House from top to bottom 200 times over.

Coal ash is nasty stuff. The byproduct of coal combustion, coal ash can contain arsenic, lead, chromium, and other heavy metals. While lawmakers and regulators have worked to keep these toxins from polluting the air, little action has been taken on the ground. The handling and disposal of coal ash remains unregulated, allowing it to be precariously stored in open air ponds, which led to the 2008 spill that ravaged western Tennessee.

The spill thrust the coal ash issue into national prominence. Congress launched investigations, and, in March 2009, the U.S. Environmental Protection Agency (EPA) pledged to propose by year's end a new regulation better protecting public health and the environment from coal ash's effects.

After its announcement, EPA spent the next few months fleshing out the details of its proposed rule. Insiders suspect EPA intends to declare coal ash a hazardous substance under the Resource Conservation and Recovery Act, the major environmental law covering the handling and disposal of hazardous wastes.

But the contents of the proposal remained hidden from public view when the agency sent a draft to the White House Office of Information and Regulatory Affairs (OIRA) for review on Oct. 16, 2009. OIRA reviews agencies' draft proposed and final regulations before they are published; the content of the draft is not typically disclosed. The review stage is usually the last major step before agencies unveil their rules to the public.

For the coal ash rule, that's where the wheels came off.

Industry lobbyists began using the review period to make their case. It started on the first day of the review, when representatives from the Electric Power Research Institute met with officials from OIRA and EPA. Two weeks later, it was power giants Southern Company and Duke Energy. In November, concrete industry interests came calling. Then it was chemical companies like DuPont, then lobbyists from the coal industry. OIRA and EPA have met with industry representatives no fewer than 30 times, according to the latest updates on the White House website.

To be fair, OIRA has heard from environmentalists, as well. Sierra Club, Earthjustice, and the Southern Environmental Law Center, among others, have all gone to the White House, asking OIRA to let EPA set standards that protect against the public health and environmental hazards of coal ash exposure.

Until EPA's proposal is published, we won't know if these meetings have had any real impact on the details of coal ash regulation. Is OIRA using its position to funnel industry complaints into EPA's decisionmaking process, or is it merely listening?

Will EPA ever be permitted to publish the proposed rule? According to longstanding policy, OIRA must complete review of agency drafts within 90 days, and it may extend the review period to 120 days, if necessary. As of March 31, OIRA has held EPA's coal ash rule for 166 days. Unfortunately, there is nothing the agency or the public can do to force OIRA to abide by its own rules and release the EPA proposal.

The ongoing controversy over coal ash is beginning to make the administration look bad. President Obama came into office promising to curb the special deals given to moneyed interests. He said transparency and public participation would be core principles for his administration. On coal ash, an OMB spokesperson recently noted that OIRA has not refused a meeting with anyone who has asked for one.

That's simply not true.

Take Elisa Young, for example. Ms. Young lives in Meigs County, Ohio, a hub for coal combustion and coal ash disposal. Ms. Young told The Huffington Post at the end of March that she blames coal combustion residuals for a cancer epidemic in her community. At least six of her neighbors have died from cancer in the last ten years.

On March 18, Ohio Citizen Action invited OIRA Administrator Cass Sunstein to tour coal ash ponds and hear from citizens like Ms. Young experiencing the effects of unregulated coal ash waste. To date, OIRA has not responded publicly to the group's invitation or to citizens around the country that have also invited Sunstein to visit their communities.

Not everyone has the money to come to Washington, D.C., and not everyone works for a national organization already established in the capital. So what about those who have a stake in the rule but don't have the time, resources, or connections to meet with White House officials? They get left out: special interest redux.

The issue isn't simply who should get one of these private meetings with OIRA. (Mr. Sunstein himself has not attended any of the meetings on the coal ash rule, but his absence has not stopped advocates from lampooning him over the delay.) It's also about the fact that these private meetings are about a rule no one outside the administration has even seen.

The EPA proposal is just that: a proposal. Publication of a proposed rule marks the beginning of a public comment period and a process with legal standards. While this process already favors moneyed interests, what no one knows is whether OIRA will force EPA to change the rule even before the public process has begun.

The coal ash controversy begs for a thorough re-evaluation of OIRA's role. Should a small White House office, comprised mostly of economists and policy analysts, be reviewing all the major health, safety, environmental, economic, and security standards developed by scores of different agencies? Is it proper for OIRA to set meetings, tell agencies what evidence to consider, and even alter the details of the rule itself? Is this process really in the best interest of the public?

For the coal ash rule making, the path forward is clear: OIRA should relinquish the proposal to EPA. Only then can the agency publish a proposed rule and begin the true public debate, where everyone can participate. Anything else would be a black eye for an administration that has championed government transparency, public participation, and true collaboration in decision making.


Gary D. Bass is the executive director of OMB Watch, a Washington, D.C.-based nonprofit government watchdog organization.


Read more on the coal ash situation here.