Two and a half weeks ago, a Duke Energy ash pond in North Carolina spilled up to 39,000 tons of coal ash and 27 million gallons of contaminated water after a stormwater pipe underneath the pond broke. The spill coated the bottom of the Dan River for 70 miles with gray sludge—five feet thick in some places. Now, investigators have discovered a second pipe underneath the pond that appears to have been leaking contaminated water into the river for a long time, with levels of arsenic 14 times higher than what would be considered safe for humans.
These spills were accidents waiting to happen. The dangers of toxic coal ash have been flashing loudly on the nation’s radar screen ever since 1.1 billion gallons of wet ash spilled from a ruptured dam in Kingston, Tennessee at the end of 2008. At the time, the EPA promised to quickly adopt new regulations that would protect the public against catastrophic spills from unstable ash ponds, groundwater contamination from unlined waste sites, and the spewing of dry ash into the air.
Fast forward five years: the spills continue (this is the third-largest coal ash spill in the nation’s history), and the regulations have yet to be finalized. There are plenty of villains in this case, from Duke Energy, which has refused to close its poorly maintained and leaking ash ponds, to North Carolina’s environmental department, which turned a blind eye to the warning signs.
But there’s another player with ash on its hands: the White House Office of Information and Regulatory Affairs (OIRA). Not only has OIRA been a major participant in the stalling of federal coal ash regulations that may have prevented this spill had they been in place already, but OIRA has also made it much more likely that the final rule, when it comes out, will be too weak to prevent disasters like this from happening on a regular basis.Full text
In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action. There followed a laundry list of initiatives that he said he would take on his own. Predictably, Republicans have railed against the President’s proposed actions, accusing him of subverting the rule of law. It’s all just politics.
First guilty party: President Obama. For all his touted exercise of executive authority, there is nothing revolutionary there. Most of the initiatives are simply the use of the bully pulpit to call upon various groups and constituencies to do the right thing. For example, the White House hosting a Summit on Working Families, asking the Vice President to lead a “full review” (as opposed to a partial review, I guess) of America’s job training programs, asking every business leader to help the long-term unemployed find jobs, and mobilizing leaders from business, labor, community colleges and other training providers to boost the number of apprenticeships in this country. Not that those are not good things, but they are hardly strong medicine. The rest of the initiatives involve the exercise of existing, well-established statutory authorities, not the use of some free-floating constitutional “executive authority.” For example, the first out of the box was the President’s order requiring new contracts with the federal government to establish a $10.10 minimum wage for contractor employees. However, at least since 1979, when the D.C. Circuit upheld President Carter’s maximum wage and price controls for government contractors, it has been well established that the Federal Property and Administrative Services Act authorizes the government to dictate the wages of contractor employees. Another announced initiative is the launching of four new manufacturing innovation institutes, but this is just the direction of the use of appropriated funds consistent with the statutory restrictions on their use. Likewise, the so-called “myRA,” or the poor man’s IRA, is justified in reality by Treasury Department authorities regarding the sale of government bonds, and it is entirely voluntary for employers. In other words, the President is guilty of hype – portraying himself as the sole person with the power to do these things. It would not be nearly so dramatic if he said that he was utilizing already existing statutory authorities.Full text
In the wake of the toxic chemical spill in Charleston, West Virginia that contaminated the city’s water supply, citizens across the country are wondering if it could happen to them.
Given gaps in our environmental and chemical regulation regime, the answer is a resounding yes. For the past year, I’ve been investigating problems of chemical storage and contamination in Virginia, and this week, the University of Richmond School of Law released a new report authored by me and law student Ryan Murphy, “A Strategy to Protect Virginians from Toxic Chemicals.”
This report is the first comprehensive study of chemical dangers in the Commonwealth and calls for major reforms.
Virginia has a self-image as a pristine, primarily agricultural state but we found that Virginians are subjected to a wide variety of risks from industrial chemicals. The reality is that Virginia ranks worryingly high in the amount of toxic chemical releases into our water and air compared to other states. Two million Virginians live in communities that fail at least one federal health standard for air pollution. Fish consumption advisories have been issued for nearly all major Virginia waterways due to toxic contamination.
The chemical spill in West Virginia should be a wake-up call for the Commonwealth to address the toxic threats in our own backyard.Full text
Congratulations to our friends at Earthjustice and their clients for a tremendous victory in federal district court today. Judge Reggie Walton (a George W. Bush appointee) ordered the Obama Administration to provide a schedule for regulating coal ash within the next 60 days. This epic battle now shifts back to the White House and Congress where nearly hysterical electric utilities that depend on coal-fired power plants will sweep in, aided by some very twisted economics from strong regulation’s staunch nemesis, the Office of Information and Regulatory Affairs (OIRA).
The coal ash crisis burst onto the national scene shortly before Christmas day, 2008, when the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. Miraculously, no one was killed.
The Kingston spill was the worst of its kind in U.S. history, but it was not the first, nor would it be the last. For a brief period of time, the catastrophe focused the nation’s attention on the health and environmental risks posed by dumping coal ash in unlined pits in the ground euphemistically dubbed “surface impoundments.”
The slurry contained both fly and bottom ash from scrubbers that are mandatory on coal-fired plants. Because scrubbers trap fumes before they are emitted into ambient air, the fly-ash portion of the spill contained significantly more than the quota of toxic heavy metals that typically result from burning coal. Or, in other words, in an inevitable but ironic twist, the benefits to breathers were obtained at the expense of walkers and drinkers. The Kingston Spill had released around 2.6 million pounds of toxic pollutants into the Emory River. By way of comparison, all of the other power plants in the United States released just over 2 million pounds of toxic pollutants during all of 2007.
Prominent national environmental groups demanded greater protection from Congress and the Environmental Protection Agency (EPA), both of which had long skittered away from confronting the problem in the face of unyielding resistance by electrical utilities. Any hint of regulatory intervention that would compel the safer disposal of coal ash and the reinforcement of old, poorly designed dumps was pounced on by industry and carelessly maintained coal-ash dumps remain the status quo.
Enter OIRA. Its review of EPA’s proposal to regulate coal ash involved 33 meetings with industry representatives who argued that the most effective regulatory option proposed by EPA—requiring coal ash that is not recycled to go to lined pits with leak detection systems--would impose a ruinous “stigma” on the beneficial recycling of coal ash. EPA insisted that in decades of implementing the Resource Conservation and Recovery Act, the agency had never observed such an effect. Nevertheless, the revised cost-benefit analysis that emerged from OIRA review predicted that a stigma effect would result in $233.5 billion in “negative benefits” (i.e., costs) to society. Far weaker regulatory alternatives that would treat coal ash as if it was no more dangerous than ordinary household garbage were thus presented as the only cost-effective options.
We can only hope that Judge Walton’s deadline and a Congress preoccupied with preventing each other from ruining the nation’s economy will leave this issue to be resolved by the experts at EPA. Wishful thinking, to be sure. Stay tuned.Full text
Ever wonder how Professor Tom McGarity knows about all those delays in regulatory review? Or how Professor Lisa Heinzerling learns about food safety regulations that the White House appears to be burying?
Well, now you too can be an OIRA ninja. In President Obama’s first term, the White House introduced an interactive Web portal stocked with charts and figures to give you better information about the President’s centralized system of regulatory review. (Last summer I referred to OIRA as “the ganglia of the president’s rulemaking brain,” which creeped out some readers, but I’m sticking with it.)
There are only two rules for you. First, don’t be afraid to snoop around; sometimes the most useful stuff is found three or four levels down. Second, don’t fall in love; OIRA’s slick Web site is a fresh breeze for advocates of government transparency. But there’s still a lot missing. Remember the line about statistics and swimsuits: what they reveal is interesting, but what they conceal is vital.
Let’s start with the homepage of the White House Office of Information and Regulatory Affairs, the one with the photo of President Obama and former regulatory czar Cass Sunstein gazing admiringly into each other’s eyes. Just below the photo is a link to the “Regulatory Dashboard,” your entrée into the President’s regulatory control room.Full text
Finally! After far too much hullabaloo about the cost of regulations, there was a U.S. Senate hearing today on why public health regulations are important, and how delays by Congress and the Administration have serious negative consequences for people’s lives. Senator Richard Blumenthal (D-CT) called the hearing entitled the first one conducted by the Senate Judiciary Committee’s newly created Subcommittee on Oversight, Federal Rights and Agency Action. The witnesses included a parent-turned advocate for automobile safety, AFL-CIO director of safety and health Peg Seminario, and law professor Rena Steinzor of the Center for Progressive Reform.
She went on to skewer industry lobbyists for the attacks on EPA’s efforts to regulate green house gas emissions, air quality standards, coal ash, stormwater runoff, PBDE’s and other chemicals. Steinzor’s testimony is punctuated throughout with powerful prose, such as:
Today, Center for Progressive Reform President Rena Steinzor will testify at a Senate Hearing hosted by the Judiciary Committee entitled "Justice Delayed: the Human Cost of Regulatory Paralysis."
Steinzor's testimony can be read in full here.
According to the testimony:
The subcommittee deserves tremendous credit for airing the truth about the public health regulations that agencies are writing as directed by Congress. The costs of delay are as real as they should be unnecessary, given the clear mandates of the law. Unfortunately, the overwhelming clout of Fortune 100 companies and their relentless, self-serving effort to ignore the great benefits provided by these essential protections has dominated the airwaves.
One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for a chronic illness confident the medicine will make them better, who avoided having their hand mangled in machinery on the job because an emergency switch was there to cut off the motor, who has taken their kids on a trip to a heritage national park to see a bald eagle that was saved from the brink of extinction—the list goes on and on.
The EPA’s regulations are among the most beneficial safeguards the U.S. regulatory system has ever produced. For example, a 2011 EPA analysis assessing Clean Air Act regulations found that in 2010 these rules saved 164,300 adult lives and prevented 13 million days of work loss and 3.2 million days of school loss due to pollution-related illnesses such as asthma. By 2020, if the rules are issued promptly and Congress resists shrill demands that it derail them yet again, the annual benefits of these rules will include 237,000 adult lives saved as well as the prevention of 17 million work loss days and 5.4 million school loss days. Even the most conservative practitioners of cost-benefit analysis, including John Graham, President Bush’s regulatory czar, acknowledge what an amazing bang for the buck these regulations deliver in relationship to the costs they impose.
Conversely, because Clean Air Act regulations have been so long delayed—after all, Congress passed the Clean Air Act Amendments in 1990 and we sit here 23 years later—thousands of additional lives have been lost, hundreds of thousands of people have had heart attacks and visited the hospital because of respiratory illness, and people have lost millions of days off work and out of school.
Tomorrow, a new panel in the Senate Judiciary Committee—the Subcommittee on Oversight, Federal Rights, and Agency Action—will bring some much-need sanity to the discussion of federal regulatory policy when it holds a hearing entitled “Justice Delayed: The Human Cost of Regulatory Paralysis.” What’s so refreshing about this hearing is that it starts from the premise that blocked and delayed safeguards are a problem that needs to be solved.
Crucially, this hearing will provide an opportunity to shine a light on the costs that are imposed on the public when regulations aimed at protecting people and the environment are unnecessarily delayed. These costs represent real harm to real people—and they are by definition preventable.
Previously, in this space, I examined the costs to the public that would result from the new delays to three rules that were announced in the Spring 2013 Regulatory Agenda. These included at least 300 premature deaths from the delay of the National Highway Traffic Safety Administration’s (NHTSA) Rearview Mirror Rule and at least 1,000 premature deaths and 1,467 non-fatal heart attacks that would result from the delay of the EPA’s updated ozone National Ambient Air Quality Standard (NAAQS). All of these costs are preventable, but not prevented.
Several of the scheduled witnesses for tomorrow’s Senate Judiciary hearing will help to provide a clear picture of what the costs of regulatory delay entail. CPR President Rena Steinzor will testify about how environmental regulations have benefited the public greatly, and how the continued delay of several pending safeguards—such as the Environmental Protection Agency’s (EPA) rules to control disposal of hazardous coal ash waste and to require cleaner-burning automobile fuel—produce great harm.
Tomorrow’s hearing is a welcome development, because when it comes to the issue of federal regulatory policy, sanity has been in short supply on Capitol Hill for the last four-plus years. And the timing of the hearing couldn’t be better, as it takes place during what House Republicans are calling “Stop Government Abuse Week,” a week dedicated to bashing public servants and voting on ill-conceived bills, including the REINS Act and the Energy Consumers Relief Act, which if passed, would make it all but impossible for the EPA and other agencies to carry out their congressionally mandated missions of safeguarding the public.Full text
Three years after the EPA proposed a rule to protect communities from coal ash—a byproduct of coal-power generation that’s filled with toxic chemicals like arsenic, lead, and mercury—a final rule is still nowhere in sight. Meanwhile, power plants are dumping an additional 94 million tons of it every year into wet-ash ponds and dry landfills that are already filled to capacity.
Seemingly untouched by this sense of looming disaster, the Obama Administration continues to dawdle in the face of resistance from the coal industry and perennial attempts from House Republicans to deprive the EPA of its authority over the issue. As the EPA fiddles with new power-plant data and reassesses the rule ad nauseam, the next coal ash catastrophe is waiting to happen. As we examine the wreckage, we’ll have to remember how this rule gathered dust on the Administration’s desk.
A Brief History of a Not-So-Brief Rulemaking
Although the EPA has debated whether to regulate coal ash for decades, the issue took on a new urgency after 1.1 billion gallons of ash slurry spilled from a ruptured dam in Kingston, Tennessee in 2008, doing irreversible damage to the surrounding community (but miraculously killing no one). The spill refocused attention not only on unstable ash ponds, but also on the leaching of chemicals into groundwater from unlined or improperly lined waste sites, and the spewing of dry ash into the air. Exposure to the toxic ash can cause cancer, birth defects, and a host of neurological and respiratory disorders, as nearby communities are painfully aware. (See here for a brand-new series of excellent films on coal ash).
After Kingston, the EPA promptly drafted a proposal that would regulate coal ash as hazardous waste, setting enforceable, nationwide standards for management and disposal. But before being released, the proposal had to pass through the deregulatory gauntlet of the White House Office of Information and Regulatory Affairs’ (OIRA) review process, which went four months beyond its deadline. During that time, industry groups met with OIRA a staggering 33 times, a record even for the heavily lobbied OIRA. They claimed that hazardous-waste regulation would impose a costly “stigma” on the use of recycled ash (in construction and landscaping materials), which would dwarf any benefits to public health and safety.
By the time the White House was through with the proposal in June 2010, it had become bloated with weak options that would regulate coal ash as “non-hazardous solid waste,” leaving in place a dysfunctional patchwork of state regulations with no federal oversight. The proposal was accompanied by a severely flawed cost-benefit analysis designed to make the weak options look attractive by embracing the industry’s unfounded stigma argument.
The coal-utility and ash-recycling industries launched a massive lobbying campaign in Congress and in public to further block the rule. The EPA was flooded with 425,000 comments, and the enormous task of sifting through them became part-reason, part-excuse for delaying the final rule—first beyond 2011, then to the end of 2012 or the beginning of 2013, and finally into 2014.
“April showers bring May flowers.” To that well-known spring-related proverb one might soon add “the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach.” Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue every year (the other is published in the fall) that compiles and summarizes the various regulatory actions that the Administration expects to take in the near future. Over the past few years, regulatory opponents have grown fond of pointing to the Spring and Fall Regulatory Agendas as still further evidence of the so-called “regulatory tsunami” that is allegedly hindering the economy and to support their campaign to “reform” our regulatory system. I expect that these same groups will waste little time in the coming days to misrepresent the latest regulatory agenda to bolster their attacks on our system of regulatory safeguards.
In fact, a careful comparison of one Regulatory Agenda to the next reveals just the opposite of what regulatory opponents claim: progress on needed safeguards has all but stalled, as new rules have become subject to new delay upon new delay. Rather than documenting a flurry rulemaking activity, the semiannual Regulatory Agenda has become more of a litany of the latest delays of and extensions to expected timelines for issuing proposals or final rules.Full text