Compromised Coal Ash Rule Belatedly Unveiled

A confusing and crippled proposal to regulate coal combustion wastes
is finally ready for public scrutiny, according to documents posted
today by Public Employees for Environmental Responsibility (PEER). The
official proposal is the U.S. Environmental Protection Agency's
response to the disastrous December 2008 coal ash impoundment spill in
Tennessee but has been watered down after intense industry lobbying in
the White House and still suffers from a welter of regulatory
uncertainties.

The proposed regulation appears in
today's Federal Register to kick off a 90-day public comment period.
EPA's original proposal was to classify coal ash as a hazardous waste
but the Obama White House forced it to add industry-sponsored options,
thus presenting a menu of choices rather than one plan. Reflecting
this odd smorgasbord arrangement, EPA claims it is "opening a national
dialogue" on what is appropriate regulation rather than seeking public
input on a specific public health measure.

EPA announced
its proposal back on May 4th but, unusually, the more than 300-page
final proposal has undergone further rewrites during the ensuing seven
weeks, including:

• In summarizing the
  costs and benefits, EPA has flip-flopped back and forth on whether the
  potential benefits of strict regulation are a positive $87 billion or a
  negative $230 billion (a mind- numbing figure that EPA's regulatory
  analysis explains was based on industry and other stakeholders'
  assertions that a hazardous waste status would create a "stigma"
  against so-called "beneficial use" of coal ash). This $300 billion
  plus difference has yet to be clearly explained; and
• Although
  this is the final "proposed rule," EPA warns that additional clarifying
  language regarding the applicability of the proposal to a wide variety
  of specific scenarios and uses may be posted later on its website.

"The
Obama administration has invited the coal industry to place its heavy
thumb on the regulatory scales," stated PEER Executive Director Jeff
Ruch, whose organization has drawn attention to EPA's failure to study
potential adverse health and environmental effects from allowing coal
ash to be put into an array of consumer, agricultural and commercial
products. "Rather than propose one clear rule, EPA appears to be
making it up as it goes along."

Despite its regulatory
role, EPA is in a partnership with industry to promote re-use of coal
ash. This partnership, called the Coal Combustion Product Partnership
(or C2P2), has been temporarily suspended because it "was deemed
appropriate to foster dialogue on the proposal evenhandedly with all
interested parties through the public comment process....We have
suspended active participation in the Partnership; we are bullish on
beneficial use," exclaims an internal agency e-mail.

"EPA Administrator Lisa Jackson pledged that she would make her
decisions based on science but this proposal makes a mockery of that
promise," added Ruch, noting that Jackson allowed the White House to
completely reconfigure what EPA had recommended. "This was the Obama
administration's first really tough environmental play call and it
punted.