OIRA Meetings Stir Controversy over Coal Ash Regulation

Industry representatives have repeatedly visited the White House to discuss pending regulation of coal ash, raising suspicions [1] that industry may be influencing the rule. In December, amid these meetings, EPA announced [2] it was backing away from its earlier pledge to propose coal ash regulations by the end of 2009.

EPA’s proposal to regulate coal ash – the byproduct of coal power plants that drew national attention after a late-2008 billion gallon spill in Tennessee – was sent to OIRA Oct. 16, 2009, 87 days ago. The meetings started shortly thereafter. By OIRA’s own rules, the review is to last no longer than 90 days, but it may be extended once by 30 days. Like almost all rules sent to OIRA at this early stage in the rulemaking process, the details of EPA’s coal ash proposal are unknown.

The sheer number of meetings being held to discuss this rule is noteworthy. By my count, OIRA has held 23 meetings on the rulemaking. 19 of those meetings have featured representatives from industries or interests opposed to coal ash regulation. The other four have included environmental advocates. If the coal ash rule ends up not as strong as it could have been, I think it’s fair to assume that industry influenced the rulemaking, and that OIRA is complicit.

But until we see a notice of proposed rulemaking in the Federal Register, we won’t know what the impact of these meetings has been. To their credit, OIRA, under President Obama, has seemed to prioritize high-profile EPA rules, particularly greenhouse gas emissions rules. OIRA spent about three weeks reviewing separate proposals to curb emissions from vehicles and industrial sources and about a month reviewing EPA’s final determination that greenhouse gases threaten public health and the environment – relatively fast paces. As far as we know, OIRA did not have a deleterious effect on any of those rules. So, it may be too soon to impugn OIRA in this case, though the circumstantial evidence will warrant close scrutiny of the rule upon its publication.

Even when the proposed rule is published, we still won’t really know what has happened because the OIRA review process is so opaque. OIRA posts [3]meeting records on its website (that’s how everyone knows who has been attending these meetings) but provides little detail on what was discussed. Furthermore, the public can’t delineate between the views of EPA and views of OIRA (though we can guess) because the original version of the draft rule submitted to OIRA won’t be made available until after the rule is finalized, months or years from now. Until transparency improvements are made, because of OIRA’s historical reputation as an interloper, “guilty until proven innocent” and “guilt by association” will be the prevailing sentiments toward OIRA.