Rena Steinzor on CPRBlog {Bio}
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North Carolina’s Coal Ash Spills: A Glimpse of the Future under OIRA’s Weak Option

Yesterday, we wrote about OIRA’s role in delaying and diluting the EPA’s long-awaited coal ash rule, in part by introducing and promoting a weak option that would rely on voluntary state implementation and citizen suits, instead of nationwide requirements and federal oversight, to protect the public from dangerous leaks and spills.

Anyone who thinks the states can be entrusted with regulating toxic coal ash need only take a passing glance at North Carolina’s track record—a virtual “how to” guide for regulatory dysfunction. Governor Pat McCrory himself worked at Duke Energy for 28 years, and Duke-connected sources donated over a million dollars to get him elected in 2012. Once in office, he appointed several former Duke employees to high-level posts, and the newly appointed head of the state’s environmental department saw himself as a “partner” to regulated industries rather than a cop on the beat. The department took no action even after Duke’s own test results showed that the ponds were polluting nearby groundwater.

Citizen suits fared no better. Even in the best circumstances, these lawsuits are expensive and time-consuming for organizations to bring, and unlike comprehensive regulations, they are sporadic in their coverage. But the situation in North Carolina was even worse: environmentalists filed three separate notices of intent to sue Duke in federal court over groundwater pollution, and each time the lawsuits were stymied by the state’s environmental department.

Federal law gives state regulators 60 days after such notices are filed to assert their own jurisdiction over the issue by bringing an enforcement action, which prevents the citizen suits from proceeding. North Carolina’s environmental department brought actions against all of Duke’s remaining waste sites, effectively blocking any additional coal ash suits against the company. The state negotiated a settlement with respect to two sites, under which Duke would pay just $99,111 (the company is worth $50 billion) and wouldn’t even be required to move or close the dumps.

The state has recently backed away from the embarrassing settlement in light of Duke’s high-profile spill. But with all this attention now focused on their improper relationship, both Duke and the North Carolina government have become the subjects of a federal criminal investigation that will examine years’ worth of their emails and memos.

This is the kind of regulatory protection we can expect to see more of if the EPA decides to issue a weak rule under Subtitle D.

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Mounting Coal Ash Spills Will Be OIRA’s Legacy

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.

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The Obama legacy: will West Virginia toxic spill join the queue of episodes showing that “government”—and whatever it means to the President—broke on his watch?

As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama.  “We have enough regulations on the books.  And what the administration ought to be doing is actually doing their jobs.  Why wasn't this plant inspected since 1991?” he declared.   “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people.  Someone ought to be held accountable here.”

Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections.  Or, to put the issue more bluntly: Why won’t anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren’t paying—or getting—enough?  But fair is fair: John Boehner isn’t the president, and this latest catastrophe happened on President Obama’s watch, along with a string of other, disturbingly similar episodes. 

 
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The age of greed: Mitch McConnell goes to bat for Big Coal after West Virginia catastrophe

For the past week, 300,000 people in and around Charleston, West Virginia, have been unable to drink the water that came from their taps, because of the toxic byproduct of feeble regulation and non-existent enforcement. Thousands of gallons of a coal-cleaning agent seeped into the local water supply after it oozed out of an antiquated storage tank and then overflowed a surrounding containment area just a mile upriver from the local water plant. Significantly, inspectors had not visited the facility in more than a decade, except by a smattering of state officials focused on air pollution, who walked on by the corroded tank and the bird's eye view of the river.

Disturbingly, we know very little about the effects of the chemical on humans. The weak federal Toxic Substance Control Act and the diminished enforcement power of the EPA and state officials in West Virginia have left local residents and citizens across the country wondering how their government came to be so powerless to stop this obvious hazard, made worse by the keystone-cop ineptitude of West Virginia’s Governor Tomblin in the days after the spill.

The search for an answer to that question leads right to the doorstep of anti-regulation politicians like Sen. Mitch McConnell from Kentucky. Decades of coal mining in the region have taken a profound toll on mountains, valleys, streams, and rivers, throughout Appalachia. And as Charleston takes its place in the history of regulatory disasters alongside the West Texas chemical plant disaster and the BP spill in the Gulf, what is the Senate Minority Leader's priority this week? Not examining how to repair the shredded regulatory infrastructure that left West Virginians without clean water. To the contrary, he's focused on cutting back further on attempts to rein in the pollution caused by coal production. 

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ACUS’s final statement on OIRA Is weak tea and wide of the mark

Recently, the Administrative Conference of the United States (ACUS) adopted a statement on how to improve the “timeliness” of rule reviews by the White House Office of Information and Regulatory Affairs (OIRA). As regular readers know, OIRA has time and again delayed the release of crucial health, safety, and environmental regulations, leaving the public exposed to unnecessary dangers while these rules gather dust on OIRA’s desk—like the proposed rule on silica exposure that was delayed for over two and a half years.

Before discussing how ACUS addressed this issue, it’s worth considering what ACUS didn’t address. The project’s original title probably set expectations too high: “Improving the Timeliness, Transparency, and Effectiveness of OIRA Regulatory Review.” The stage appeared to be set for a broad examination of OIRA’s role, including its failure to meet the deadlines and disclosure requirements set forth in the document that gives it authority to conduct regulatory review: Executive Order 12,866. However, it soon became clear that only one of those three factors (timeliness) would be on the table for discussion, and the other two concepts were dropped from the project’s title.

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Fiddling while rome burns: 64 dead, 741 sick, and Cass Sunstein’s dangerous love affair with cost-benefit analysis

Former (de)regulatory czar Cass Sunstein is back, full of advice on how to run the government from his perch as a Harvard law professor.  In a “View” column for Bloomberg News entitled “Left and Right Are Both Wrong About Regulation,” Sunstein urges his former allies and enemies to redouble their efforts to “look back” at old rules. He claims that forcing agencies to rummage through their closets in search of bad rules has already saved “billions of dollars,” although the only tangible example he offers is the recent Federal Aviation Administration (FAA) decision to allow people to use electronics on airplanes—popular, to be sure, but probably not such a plus for the economy.  Sunstein is deaf to any perspective on the regulatory state other than his deeply held prejudice that it is over-regulating and must be choke-chained through the zealous application of cost-benefit analysis.  As he did when he held the tight-collared short leashes of the regulatory agencies from his corner office at the White House, he ignores the many recent public health crises that tougher rules would have prevented.

Consider, for example, the 2012 meningitis outbreak that sickened 741 and killed 64 people in 20 states.  In the early fall of that year, people began to die from virulent infections after receiving spinal injections of methylprednisolone, a steroid drug used to relieve back and shoulder pain.  Suspicious doctors discovered that the injections originated at the New England Compounding Center (NECC) in Framingham, Massachusetts.  The company, which had been in trouble with federal and state regulators repeatedly for more than a decade, is sadly representative of serious problems within this industry. 

When federal and state inspectors inspected 31 “high-risk” compounders in 18 states last April, 28 got Form 483’s—FDA-speak for bad conduct reports.  All were engaged in abuses from mixing drugs in “clean rooms” contaminated by mold to getting the composition of medications wrong.  Yet compounders are regulated by state pharmacy boards that are ineffective.   Companies are not required to register with the federal government, and the Food and Drug Administration’s (FDA) authority to prevent them from selling adulterated drugs is hamstrung by recent court decisions.  As she withstood blistering condemnation of House Republicans, FDA Commissioner Margaret Hamburg begged her congressional overseers to give her agency the tools needed to police the industry.

Compounders provide 40 percent of intravenous medications used in hospitals, up from 16 percent just a decade ago.  If NECC is not a rogue company but rather a typical example of how fast and loose practices allowed this industry to grow by leaps and bounds, we’re in big trouble.  Yet, when Congress reared up on its tiny hind legs to address this crisis, it passed a shamefully weak law that would let compounders choose whether they wanted to register with the FDA and be regulated, or whether they preferred to do business as usual.  The magical thinking behind this approach is that market forces will compel reputable companies to register.

Sunstein never says a word about such episodes.  Instead, he urges the President and Congress to assign agencies like the FDA to double-down on elaborate calculations that purportedly measure whether the benefits of protecting public health might be outweighed by the costs of imposing such requirements on industry.  

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What’s for Thanksgiving? Hopefully not more crippling pain for poultry workers! Learn more at upcoming webinar

When we all sit down for Thanksgiving dinner next week, we hope that the food we are feeding our families is wholesome and that the workers who produce it are safe.  Thanks to the U.S. Department of Agriculture (USDA), ever the mindless booster of corporate profits, that turkey at the center of the table already disappoints both expectations, and if USDA has its way, matters are about to get much worse.  Hiding behind disingenuous promises to “modernize” the food safety system, USDA has decided to pull federal food inspectors off the line at poultry processing plants across the nation.  No new preventative measures to ensure that poultry is free of salmonella would happen.  And already crowded, bloody, stinking lines would speed up dramatically—to as many as 175 birds per minute, or three birds/second. Workers who suffer grave ergonomic injuries from the repetitive motions of hanging, cutting, and packing the birds would endure conditions that are two or three times worse than the status quo.   

The consequences of USDA’s de-regulatory scheme are well documented. Back in 2001, the Government Accountability Office (GAO) found significant food safety concerns in pilot plants authorized to test the new system and just this past summer slammed the USDA’s data in justifying the program. The Agency is using data cherry-picked from two-year snapshots over a 15-year period of the piloted system to justify the program and relying on old and inaccurate economic analysis.  

 

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The coal ash rule rises like the phoenix: Judge Reggie Walton orders EPA to get the rule back on track within 60 days, congratulations to Earthjustice and its clients

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.  

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Cook That Chicken Because You’re on Your Own

Salmonella outbreak reveals we need more, not fewer, cops on the food safety beat.

Some 317 victims of salmonella poisoning from Foster Farms chicken sold in 20 states have learned firsthand why we need government.   Who knows how much faster the threat would have been contained if Centers for Disease Control (CDC) experts had been walking their usual beat, coordinating state investigators and working frantically to discover the origins of the virulent strain of salmonella that has already hospitalized 42 percent of the 317 victims?  

Instead, the investigators were sent home on furlough, and only recalled to work after the scandal hit the media.  

CDC investigators are a vital link in the chain of public protection because they are the people who “trace back” illness to its source. Obviously, knowing someone has salmonella poisoning is not enough: we also need to know which food, from what company, gave them the disease.

When so many people got sick, investigators were called back, but they had to do their work tracking the outbreak without the benefit of the agency's rapid response online-tracking system, Pulse Net, which was shut down as a result of the furloughs. Eventually, the culprit was isolated: a poultry processor called Foster Farms, based in California that had already amassed a pitiful track record of dirty practices, including “poor sanitary dressing practices. Insanitary food contact surfaces and direct product contamination,” as documented by USDA.  Eventually, USDA discovered that one-quarter of Foster Farm chicken was contaminated by salmonella, more than three times the acceptable standard set by USDA for this bacteria, which causes diarrhea, fever, and abdominal cramps 12 to 72 hours after infection.

The USDA sent nasty letters to Foster Farms as far back as July, but did not move on the company in any serious way until October when CDC and other government officials figured out the source of the bad chicken. Even then, no recall was required. Why? According to Food Safety Inspection Service chief Daniel Englejohn, the ability of the USDA to recall meat is hampered by a court decision from 2001, which concluded that as long as a contaminant, like salmonella, can be dealt with through the cooking process, it is considered “safe” to eat.   Or, in other words, companies are protected even when people, doing their best to get dinner on the table, get sick. Even proper cooking is no panacea, given the high likelihood of cross-contamination in a kitchen: Costco ordered its recall after someone was sickened with salmonella from eating the store’s rotisserie chicken, which is cooked to at least 180 degrees—15 degrees above the USDA’s recommendation. This odd catch-22 and USDA’s lackadaisical enforcement has resulted in eight outbreaks in 2012 alone.

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The End of Centralized White House Regulatory Review: Don’t Tweak EO 12,866, Repeal It

 A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes.  From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in 40 years at the Upper Big Branch mine in West Virginia, the signs of regulatory dysfunction abound.  Many stakeholders expected that President Obama would move to reinvigorate the regulatory system, but he has not. In fact, he's gone so far as to adopt some anti-regulatory rhetoric, and suggesting that that alleged over-regulation contributes to the nation's economic woes.

One central reason for the systemic failure of effective health and safety regulation is that many regulatory matters enter and exit the White House through the Office of Management and Budget’s (OMB) little-known but extraordinarily powerful Office of Information and Regulatory Affairs (OIRA). Centralized White House regulatory review began during the Nixon administration and OIRA was created in 1980. Over four decades, the process has evolved into a gauntlet for public health, worker safety, and environmental protection initiatives,. Agencies doing their best to implement statutory mandates in a reasonable timeframe are subjected to withering rule-by-rule reviews.  The process is analogous to examining the branches of individual trees without realizing that they are part of a dying forest;  this myopia has obscured the causes and effects of regulatory failure for five presidents from both parties.

 

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