Coal Ash Delay Silences the Voice of the Little Guy

A citizen advocacy group is asking the White House Office of Information and Regulatory Affairs (OIRA) to take a closer look at the environmental and human health impacts of coal ash – a toxic byproduct of coal combustion often precariously stored in outdoor retention ponds. The request was placed on day 153 of OIRA’s review of an EPA proposal to more strictly regulate coal ash. By its own rules, OIRA is to spend no more than 120 days reviewing agency proposed and final regulations.

During that time period, OIRA has met with outside stakeholders on at least 41 different occasions. The majority of the meetings have been with industry representatives opposed to strict EPA regulation, though several others have included environmental advocates.

The group, Ohio Citizen Action, is turning the tables, asking OIRA Administrator Cass Sunstein to visit them:

Cleveland, Ohio March 18-- Ohio Citizen Action today urged OIRA Administrator Cass Sunstein to accept the invitations he is receiving to visit the homes of people in Ohio and across the country whose communities have been devastated by Toxic Coal Ash. The letters…recount individuals’ experiences of living in communities where coal ash has poisoned drinking water, endangered people’s health, and caused home values to plummet. 

In my opinion, who OIRA meets with is not the most important issue here – while I doubt Sunstein will go to Ohio, I’m confident OIRA officials would agree to meet with those impacted by coal ash just as they have met with industry lobbyists. Unfortunately, many people can’t or won’t come to Washington to meet with EPA and OIRA to discuss coal ash regulation.

OIRA should ask itself, Who’s being left out? The protracted review delays participatory opportunities for everyone else. Whether they are for or against regulation, there are a lot of people outside the beltway whose voices aren’t being heard.

Keep in mind, EPA’s proposed coal ash regulation is just that, a proposal. No one knows for sure what EPA is planning, but the details of the agency’s proposal (if they are ever permitted to publish it) are not set in stone.

The Administrative Procedure Act created a rulemaking process that requires agencies to publish proposed rules in order to give the public an opportunity to comment. Agencies are then required to respond to those comments before publishing a final rule. Notice-and-comment rulemaking is a pillar of democracy in this country.

Though they are under no obligation to do so, agencies can and do incorporate public input into their final decisions. In a recent speech at the Brookings Institution, Sunstein himself said that the Obama administration is taking public comments “extremely seriously,” and reflecting them in final rules: “The public comments are playing a very significant role in making sure that the proposal is right and improving the rule.”

For now, the ongoing OIRA review of EPA proposed coal ash rule is subverting rulemaking’s democratic elements. Until OIRA approves the draft, EPA likely won’t be able to publish it in the Federal Register or take comment on it.

Why not allow EPA to publish a proposal and begin the debate out in the open?

Update: To help jumpstart the public debate over coal ash, consider these two options:

  • Through the environmental group Earthjustice, you can write a letter to President Obama urging him to ensure the public is protected from the hazards of coal ash. Click here to send the letter.
  • The website, which is bringing lots of creativity to this serious issue, is petitioning OIRA Administrator Cass Sunstein to release the coal ash rule. Sign the petition here.
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