Commentary: Changes to Coal Ash Proposal Place Utility's Concerns above Public Health
An internal administration document shows the U.S. Environmental Protection Agency (EPA) may have weakened a proposal to regulate toxic coal ash at the behest of the Tennessee Valley Authority (TVA), owner of a Kingston, TN, power plant where a dam break spilled 5.4 million cubic yards of coal ash in 2008.
Catastrophes like the one that occurred at the Kingston facility, as well as shoddy storage practices that allow coal ash to escape into water supplies, make coal ash a public health and ecological risk. TVA's comments could have struck a blow to EPA's efforts to mitigate that risk.
TVA Makes Comments Like a Government Agency
TVA, a major coal-burning utility as well as a manager of coal combustion residuals like coal ash, should have waited until the public comment period, just like citizens, environmental groups, and other businesses must do. The fact that TVA exercised its influence behind the scenes, before EPA released the proposal to the public, makes for a troubling situation.
In fact, TVA should have had the decency to recuse itself from commenting during the review stage of the rulemaking process if it considers itself a government agency. Not only would TVA be regulated by the EPA proposal, its failures in the Kingston coal ash disaster represent one of the driving forces behind EPA's push to regulate. (Crews are still not finished cleaning up the December 2008 spill.) This indicates serious conflict-of-interest issues that should have been addressed.
Instead, TVA filed comments recommending an approach easier on utilities and less protective of public health and the environment. TVA criticized EPA's original draft, in which the agency concluded the most appropriate course of action was to treat coal ash as a hazardous waste. In the May 4 version, EPA proposed hazardous waste regulation but also included an alternative, a weaker approach that would relinquish more authority to state and local governments and rely in part on citizen enforcement to curb pollution. TVA's comments say it is concerned with the impact hazardous waste regulation "could have on our, and other utilities', daily operations." In fairness to EPA, other agencies, such as the Departments of Agriculture and Interior, also argued against EPA's hazardous waste designation.
TVA also raised concerns about EPA’s seemingly problematic definition of "new" and "existing" landfills as they relate to coal ash disposal. Among those concerns was the notion that EPA’s definitions create regulatory uncertainty for utilities that are attempting to determine if they’re dealing with or operating a new or existing landfill. This uncertainty could have real-world public health and environmental impacts, as described in greater detail later in this article.
Where was the public during all this? Waiting. Waiting for the EPA to publish its proposal and begin the comment period. Little did we know that a regulated interest was first getting a sneak peek at the proposal during the interagency review process.
EPA and OIRA Both Responsible for Debacle
Both EPA and the White House Office of Information and Regulatory Affairs (OIRA), the office responsible for managing the review process and collecting government-wide comments, share the blame. President Obama promised to curb the corrosive influence of special interests in Washington, but neither EPA nor OIRA lived up to that promise in this case.
EPA should have flatly ignored TVA's comments, and while it may be plausible to assume that they did, and that the edits to the landfill definition were mere coincidence, it's more than plausible to assume a cause-and-effect relationship. EPA made the wrong decision from both a policy and a political standpoint. However, the agency still insists the review process was valuable. "EPA believes that the interagency review significantly improved this rulemaking package," the agency told OMB Watch.
OIRA should have known better, too. Under Executive Order 12866, which gives OIRA the authority to conduct an internal review of agency draft proposed and final rules, all government agencies are to be given an opportunity to comment. TVA, as a government-owned corporation, falls into that category. But at some point, common sense needs to take hold. OIRA Administrator Cass Sunstein should have recognized the situation and, in his position as a Senate-confirmed presidential appointee and high-ranking White House official, politely informed TVA officials that their comments simply weren't welcome this time around.
TVA's comments were uploaded to Regulations.gov, the central site for agencies' regulatory material, on May 17, along with other documents relevant to the development of the proposed rule. While EPA generally discloses the nature of the comments received on draft proposals, it is unusual for the public to have access to specific comments attributed to specific agencies.
Real-World Impacts of TVA Comments
The comments show that TVA is trying to have it both ways: it wants to enjoy the perks of its government ties while maintaining the anti-regulatory mindset of a private polluter. Applying its expertise as a regulated utility to attempt to undermine technical details of an environmental standard, like the definitions the EPA wants to apply to utility-owned facilities, is an inappropriate use of TVA's quasi-government-agency status.
Here's a prime example of how TVA's comments appear to have influenced the content of EPA's definitions for new and existing landfills. According to EPA's original draft, the agency planned to designate as "existing" those landfills operating at the time the rule is finalized and designate as "new" those landfills that begin operation after the rule takes effect. New landfills will be subject to a number of requirements from which existing landfills will be exempt.
In the proposed rule released to the public May 4, EPA used the effective date of the rule, not the finalization date, as the threshold for the definition of existing landfills, consistent with TVA's comments. This means that more coal ash landfills could be exempt from the rule's more stringent requirements.
The change made to the definition of "existing landfill" could have real consequences. Under EPA's proposal, unlike new facilities, existing landfills will not be required to:
- Install liners intended to prevent or limit coal ash, and the pollutants in it, from leaching into the ground on which the landfill sits;
- Install a collection system for any leaching that does occur;
- Abide by EPA's location restrictions intended to keep new landfills away from wetlands and unstable areas, including areas susceptible to earthquakes, and above the water table.
Existing landfills would have to meet other requirements that apply to new landfills, including groundwater monitoring. (Unlike landfills, surface impoundments, such as the one that failed in Kingston, TN, would have to retrofit liners and leachate collection systems under the rule, or close, within seven years.)
In an appendix to EPA's notice of proposed rulemaking, the agency included a list of proven cases where coal ash containment facilities have harmed the environment. Of the 16 cases when coal ash has leached into the groundwater supply, four occurred at unlined landfill sites. In these cases, leaching has led to unsafe levels of lead, boron, and arsenic in groundwater. The risk posed by unlined landfills is real.
Process Let the Public Down
As a resident of Meigs County, OH, a hub for coal ash disposal, Elisa Young knows the human toll coal ash exposure can take. Young told The Huffington Post 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. Young is working with Ohio Citizen Action to advocate for coal ash regulation.
The regulatory process is complex and laden with details and definitions that can overwhelm even the most ardent observers. Those details are important – important to agencies and important to the businesses and other organizations they regulate. However, they are absolutely critical to the public. Details determine the level of protection government gives to citizens, including the most vulnerable among us. The public deserves to have regulations developed openly and with its interests in the forefront.
In the case of the coal ash proposal, the Obama administration let the public down. Special interests wedged their way into the process and undermined confidence that the proposal was developed fairly. EPA must see to it that its final rule meets the public's needs and takes Americans' concerns into account.
The public comment period for the proposal will remain open for 90 days after EPA publishes it in the Federal Register.
 After realizing it had disclosed the interagency comments, EPA removed the document from Regulations.gov, saying it had been "inadvertently posted." In a statement to OMB Watch, EPA said, "Interagency comments on draft rules by federal agencies under Executive Order 12866 are part of a deliberative process." However, on May 20, EPA reposted the document, explaining, "Because this document was inadvertently disclosed, EPA has decided, in this instance and with the agreement of the agencies, to allow the document to remain in the docket."