Obama WH Over-Ruled EPA Scientists On Coal Ash Regulations

Earlier this week, we wrote about EPA’s proposed weak approach to regulating toxic coal ash (see: EPA Caves on Coal Ash).

In that post, we suggested that the Obama White House may have intervened to reverse the recommendations of EPA scientist’s and strong arm the EPA Administrator, a widespread abuse under the Bush Administration that was condemned by scientists and national environmental groups.

[reporters] asked about the role of Obama adviser Cass Sunstein, head of the Office and Management Budget Office of Information and Regulatory Affairs . EPA submitted a draft rule in October 2009 for Sunstein’s review. Some have said that he was pressuring EPA to weaken and delay the rule via OIRA’s regulatory review and cost benefit analysis. EPA refused to answer questions about OIRA’s role and how the October version differed from  today’s proposal (particularly about whether the October draft included an EPA preference). That silence basically confirms the suspicion that the EPA science was politically over-ruled by Obama’s OMB acting though OIRA based on economic considerations.

Before Jackson joined the Obama administration, we criticized her as lacking independence as Commissioner of the NJ DEP, where she showed a pattern of politicizing environmental decisions and an inability to resist political pressure (see: WHY LISA JACKSON SHOULD NOT RUN EPA):

In our experience, Lisa Jackson is cut out of the same professional cloth as the current administrator, Stephen Johnson – a pliant technocrat who will follow orders, … If past is prologue, one cannot reasonably expect meaningful change if she is appointed to lead EPA.

Our criticism and suspicions have been confirmed by a beltway news outlet, who just reported that the White House did intervene and over-rule EPA scientists. According to E&E News:

COAL: EPA backed off ‘hazardous’ label for ash after White House review (05/07/2010)
Patrick Reis, E&E reporter

U.S. EPA’s proposed regulation of coal ash as a hazardous waste was changed at the White House to give equal standing to an alternative favored by the coal industry and coal-burning electric utilities.

The Obama administration is now considering two competing rules for regulating the ash that contains toxins that include arsenic, lead and mercury. The first would set binding federal disposal requirements for the ash, and the second would label the ash nonhazardous and leave enforcement to the states (E&ENews PM, May 4).

EPA released the two-headed proposal Tuesday for public comments.

But there was just one rule proposal that EPA sent to the White House’s Office of Management and Budget last October and that would have labeled coal ash a hazardous waste, documents released yesterday show. EPA said then that compliance with the hazardous-waste regulations would be more expensive but that costs would be outweighed by health and environmental benefits.

EPA wrote then that “maintaining a [nonhazardous] approach would not be protective of human and the environment.”

What changed in the six months that the proposal was in OMB’s hands? Says EPA: Its administrator, Lisa Jackson, changed her mind about the hazardous-waste designation.

“After extensive discussions, the Administrator decided that both the [hazardous and nonhazardous] options merited consideration for addressing the formidable challenge of safely managing coal ash disposal,” EPA said in a statement.

In its deliberations on the rule, OMB had more than 40 meetings with stakeholders, 30 with industry groups and at least 12 with environmental and public health groups, according to office’s records. OMB declined to comment on the matter, referring questions to EPA.

Proponents of the hazardous designation say Jackson was bullied away from the agency’s original proposal by industry lobbyists and OMB economists.

“OMB is substituting its judgment for the judgment of the EPA administrator, and that’s not the way this is supposed to work,” said Rena Steinzor, president of the Center for Progressive Reform and a professor at the University of Maryland Law School. “Lisa Jackson is accountable for environmental protection and that she could be overruled by a bunch of economists in the basement of the executive office tells us that this process is frighteningly dysfunctional.”

Environmentalists have been pressing EPA for the hazardous designation for years, but the campaign gained momentum 16 months ago when a wet storage pond at a Kingston, Tenn., power plant failed, spilling about 1 billion gallons of sludge into surrounding lands and rivers. Even when the ponds do not fail, they can leach toxic concentrations of heavy metals into water supplies, said Lisa Evans, an attorney with the nonprofit Earthjustice.

Under the hazardous option EPA proposed Tuesday, such ponds would be phased out over five years. The nonhazardous alternative would allow new wet storage ponds to be built but require new safety measures and pollution monitoring devices.

Utilities and companies that sell coal ash for recycling as a building material argue that a hazardous designation overstates the health risks from coal ash and would unnecessarily impose new storage costs. They also say it would stigmatize building materials that use recycled coal ash and send more of the waste to landfills (Greenwire, Jan. 13).

The changes to EPA’s proposal during the OMB review suggest the regulatory-review process worked properly, said Jim Roewer, executive director of the Utility Solid Waste Activities Group.

Both environmental groups and affected business had an opportunity to share their views, Roewer said. The number of meetings with industry groups should not be seen as “undue influence” but rather the result of the high number of companies affected by coal ash rules, he said.

The review process “does open the opportunity for interested stakeholders to present their views so that EPA or whatever federal agency is developing a rule can get as much information as possible,” Roewer said. “To say this is a bad thing for public policy seems like a strange argument.”

We have been writing about the dangers of cost benefit analysis as an industry backed tool to weaken regulatory protections and undermine science based air, water, and public health and safety standards.

We also have tried to explain how the new Christie Regulatory Czar and closed door “stakeholder” meetings are an abuse of Executive Power.

The Obama WH intervention to kill strong coal ash regulation via cost benefit analysis and closed door industry meetings is exactly the process the Christie Administration has created in Executive Order #2 and the new Regulatory Czar, Kim Guadagno.

That process already killed a DEP proposed drinking water standard and rollbacks of more than a dozen major DEP rules are underway. – including the Highlands Septic Density standards.

We can expect a lot more rollbacks, unless the public is made aware of what is going on and begins to oppose the rollbacks, before they become fate accompli.