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Identification and Listing of Special Wastes; Amy Sinden Disposal of Coal Combustion Residuals from Electric Utilities Sidney Shapiro Docket ID No

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Identification and Listing of Special Wastes; Amy Sinden Disposal of Coal Combustion Residuals from Electric Utilities Sidney Shapiro Docket ID No November 19, 2010 Board of Directors John Applegate Robert Glicksman SUBMITTED BY ELECTRONIC MAIL David Hunter Thomas McGarity Hazardous Waste Management System; Catherine O’Neill Identification and Listing of Special Wastes; Amy Sinden Disposal of Coal Combustion Residuals from Electric Utilities Sidney Shapiro Docket ID No. EPA-HQ-RCRA-2009-0640 Rena Steinzor EPA/DC, EPA West, Room 3334 1301 Constitution Ave., N.W. Washington D.C. 20460 Advisory Council Patricia Bauman Re: Comments from the Center for Progressive Reform Frances Beinecke W. Thompson Comerford, Jr. Gentlepeople, Robert Kuttner John Podesta Please find attached comments from the Center for Progressive Reform regarding James E. Tierney the above-referenced Notice of Proposed Rulemaking. Please include these Henry Waxman comments in the electronic docket and consider them as you deliberate on the final rule. Sincerely, Rena Steinzor Professor, University of Maryland Law School President, Center for Progressive Reform Michael Patoka Law Clerk, University of Maryland School of Law Center for Progressive Reform Enclosures Center for Progressive Reform www.progressivereform.org (202) 747-0698 455 Massachusetts Ave., NW #150-513 phone/fax Washington, DC 20001 [email protected] Comments The Center for Progressive Reform Hazardous and Solid Waste Management System: Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities Docket ID No. EPA-HQ-RCRA-2009-0640 November 19, 2010 Submitted by Rena Steinzor, Professor, University of Maryland Law School President, Center for Progressive Reform Michael Patoka, Law Clerk, University of Maryland Law School and Center for Progressive Reform Center for Progressive Reform www.progressivereform.org (202) 747-0698 455 Massachusetts Ave., NW #150-513 phone/fax Washington, DC 20001 [email protected] CPR Coal Ash Comments 11/19/10 Table of Contents Executive Summary ...................................................................................................................... 3 Final Rule: Apply RCRA Subtitle C ........................................................................................... 3 The Public Health Legacy of Disposal: Spills and Contaminated Groundwater ........................ 5 Systematic Bias in the RIA ......................................................................................................... 7 Minimizing Benefits ............................................................................................................. 10 The Stigma Effect ................................................................................................................. 15 Distributional Effects ............................................................................................................ 17 Benefits of Preventing Groundwater Contamination .............................................................. 19 Summary of the Analysis in the RIA ........................................................................................ 19 Arsenic and Old Waste: Only a Partial Accounting of Benefits ............................................... 19 Lost in Translation: The Awkward Monetization of Avoided-Cancer Risks ........................... 20 A Faulty Leach Test at the Root of the Cancer Predictions ...................................................... 21 Underestimating the Number of Fatal Cancers Using Five-Year Survival Rates .................... 22 Wishful Thinking: Most Cancers Would Be Prevented Even Without the Rule? .................... 23 Other Uncertainties ................................................................................................................... 24 A Reality Check ........................................................................................................................ 25 Benefits of Preventing Spills from Surface Impoundments .................................................... 25 Summary of the Analysis in the RIA ........................................................................................ 26 Estimating the Cost of a Spill ................................................................................................... 26 Estimating the Frequency of Spills ........................................................................................... 29 The Historical Methodology: Sparse Data, Subtle Errors, and Static Predictions................ 30 The ―Age and Height‖ Methodology: Neglect of Other Attributes and Surroundings ......... 33 Intermission: A Visual Tour of Coal-Ash Threats................................................................... 35 Indirect Effects of RCRA Regulation on Beneficial Use ......................................................... 41 Summary of the Analysis in the Proposed Rule ....................................................................... 41 Summary of the Analysis in the RIA ........................................................................................ 42 Underestimation of the Potential Increase in Beneficial Use ................................................... 43 Arbitrary Assumptions in the Analysis of the Stigma Effect ................................................... 43 A Significant Stigma Effect Is Unlikely ................................................................................... 46 CPR Coal Ash Comments 11/19/10 Policy Implications of the Stigma Analysis .............................................................................. 47 Quantifying the Industry‘s Fear of Liability for the First Time ............................................ 47 Conflating Inconsistent Models of Human Behavior ........................................................... 49 Promoting a Condescending View of Public Fear ................................................................ 51 Threatening the Role of Public Participation in the Regulatory Process .............................. 53 Dwelling on the Economic Costs of Public Fear While Disregarding Its Social Costs ....... 53 Introducing Countless Speculative and Incalculable Factors into CBA ............................... 54 Comparison of Regulatory Options and Distributional Effects ............................................. 54 How the RIA Derives the Costs and Benefits of the Weak Option .......................................... 54 Overestimating the Level of Compliance under the Weak Option ........................................... 55 Ignoring the Distributional Effects of the Predictions under the Weak Option ........................ 56 Obscuring the Predicted Pattern of State Implementation .................................................... 56 Cutting Costs by Leaving Low-Income, Minority, and Child Populations in Danger ......... 58 How the RIA Derives the Costs and Benefits of the Weakest Option ...................................... 61 Conclusion ................................................................................................................................... 61 Appendix: Magnitude of the RIA’s Errors in Avoided-Spill Benefits ................................... 62 CPR Coal Ash Comments 11/19/10 Executive Summary Final Rule: Apply RCRA Subtitle C These comments consider the Regulatory Impact Analysis (RIA) that accompanies the Environmental Protection Agency‘s (EPA) proposal for the regulation of coal ash under the Resource Conservation and Recovery Act (RCRA).1 The final EPA rulemaking proposal and the RIA are the product of intense negotiations between the Agency and the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB), which was intent on weakening the original EPA proposal. CPR strongly urges EPA to go back to its original proposal to regulate disposed coal ash under RCRA subtitle C (Option 1 in the proposal as it emerged from OIRA review). RCRA delegates the decision of how to regulate coal ash to EPA Administrator Lisa Jackson. In this case, if either Option 2 (subtitle D) or Option 3 (subtitle “D prime”) of the revised proposal is adopted, her decision-making would be usurped by the OIRA director, a result that the statute neither contemplates nor tolerates. The draft rule2 that EPA forwarded to the OIRA on October 16, 2009, would have labeled coal ash destined for land disposal as a ―hazardous‖ waste under RCRA,3 a decision that has three implications: (1) electric utility plant operators must send the ash to landfills and surface impoundments that meet significantly more protective design requirements, such as the installation of liners, covers, and leachate detection systems; (2) the EPA would write those standards, although state regulators would write and enforce the permits for individual facilities in most places; and (3) plant operators would be required to ―close‖ most defunct coal ash disposal units under the supervision of federal and state regulators. A fundamentally changed proposal emerged from the OIRA. Rather than sticking with a single proposal, the rulemaking notice advanced three alternatives: (1) adopting the EPA‘s original option that coal ash be regulated as a RCRA subtitle C hazardous waste,4 although in an 1 Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, 75 Fed. Reg. 35,128, 35,211 (proposed June 21, 2010) (to be codified at 40 C.F.R. pts. 257, 261, 264, 265, 268, 271, 302), available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b06eac. 2 The EPA has posted on its docket
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