Open Letter to the EPA: Top Three Must-Dos in Obama’s Second Term

Nov 17, 2012 by

Bill Chameides

Dean, Duke University’s Nicholas School of the Environment

We all know about the fiscal cliff. Imagine there was an environmental cliff …

If there was, here are three items that I think the EPA (and Congress) would need to move on.

Dear Environmental Protection Agency,

With so much on your mind and your plate, I’m not going to bombard you with lots of imperatives. I have just three that I humbly propose for your consideration.

1. Coal Ash: Time to get off the fence

Coal ash, an issue that has languished for decades, was one that Lisa Jackson promised action on before she even officially became EPA administrator. Yet, here we wait.

The problem? The United States produces lots of coal ash, the toxic detritus from burning coal. In the last three years, lots has translated into between 125 and 136 million short tons of ash annually. Much of it is dumped into storage ponds and landfills. (More on this here and here.) Is that safe? Should coal ash be designated as hazardous waste?

Such a determination has been long in the making. In the waning days of Bill Clinton’s presidency, the EPA almost designated coal ash a hazardous waste, but it wasn’t to be. Then in early 2009, following the massive coal ash spill at the Kingston Fossil Plant in Tennessee (which sent more than one billion gallons of toxic coal-waste sludge into nearby lands and waterways), renewed momentum began to build. Finally, we thought, we’d get a decision on whether the government would designate coal ash as a hazardous waste subject to federal standards or a non-hazardous waste subject to state laws. Instead we got another delay.

It’s now almost four years later and the EPA is still on the fence. The last comment period on the issue closed a year ago. Meanwhile research continues to highlight the harmful effects coal ash has on the environment.

Hey, EPA: Time to get off the fence and make a call on this one.

2. Implement a ‘Transport Rule’ that can survive the courts

This is an issue on which the Obama administration has made some progress; namely, rules are in place (some of which are under review) to address emissions of mercury from stationary sources (such as coal-fired power plants).


But what about stationary sources of nitrogen and sulfur oxides that lead to ground-level ozone and particulate matter pollution?


The Obama administration has attempted to address these sources in a comprehensive manner by promulgating the Cross-State Air Pollution Rule (known as CSAPR or the Transport Rule), which recognizes that air pollution knows no state boundaries and therefore tries to regulate emissions using a regional rather than a state-by-state by approach.


However, the rule was quashed (PDF) (remanded and vacated) last summer, two to one, by a three-judge panel of the D.C. Court of Appeals.The court’s main reasoning in rejecting the rule: the EPA exceeded its authority by requiring upwind states to cut pollutants by more than their “fair share” in an effort to improve air quality in neighboring states.


Seems like kind of a drag because the projected health benefits from reducing particulate matter alone are valued at up to $280 billion annually. And since most utilities had already taken steps to comply with the regulation, the rule even had industry support (See here and here.)


Turns out, this is not the first administration to get its Transport Rule shut down by the courts. CSAPR is actually a reworking of the Bush administration’s Clean Air Interstate Rule (CAIR), which was rejected by the courts in 2008 (this time because EPA’s solution didn’t meet the requirements of the Clean Air Act) but allowed to remain in place until a new rule was written. CSAPR was to be the replacement. The EPA hopes that a rehearing by the entire appeals court, requested in October, will reinstate the rule.


This is an item that screams out for resolution, one way or another. Even the power companies are not fighting ramping up additional emissions reductions over time and in fact have upgraded pollution controls and budgeted appropriately (see here and here).
3. Pull a TSCA rabbit out of the hat

In the words of EPA Administrator Jackson, the Toxic Substances Control Act or TSCA is “failing to get this job done… not only has TSCA fallen behind the industry it’s supposed to regulate — it’s been proven an inadequate tool for providing the protection against chemical risks that the public rightfully expects.”

While an estimated 80,000-plus chemicals are circulating in the marketplace these days, only nine are regulated under TSCA — five existing chemicals and four new ones. Now, you know that cannot be right. We badly need a new law. One such possibility, introduced by Senator Frank Lautenberg (D-NJ) and known as the Safe Chemicals Act of 2010, languishes in the legislative ether that lies between committee approval and Senate debate. The bill has been modified and reintroduced several times and is now known as the amended version of S. 847. This summer it was passed out of the Senate Environment and Public Works Committee, but has yet to reach the Senate floor, let alone the House.

Is this the right law? Would another law be better? I don’t know. But I do know action is needed.

Oh, and it’s not just scientists like me who think so. In September, a nationally conducted poll of small business owners by Lake Research Partners found that “most business owners explicitly support government regulations of the products companies buy and sell, and nearly three out of four support a proposed reform of the Toxic Substances Reform Act requiring manufacturers to show their chemicals are safe.”

So business is on board. The American people are on board. Seems like the time has come for the EPA to figure out a way to work with Congress to get something passed that makes it more difficult for any dangerous chemical to get into the products we buy and into our own and our children’s bodies.

Want to shoot the moon?

So there you have it, EPA, my modest list of three action items for your consideration. But, if I may be so bold for a minute more of your time, if three’s not enough or maybe seems too easy, I’ve got another one that I’ve been holding in reserve: move aggressively on a national climate policy. You could comply with the court-ordered carbon-pollution standard for existing power plants as a follow-on to your proposed carbon-pollution limit for new power plants and maybe cap it off with the passage of a carbon tax or maybe even a cap-and-trade program.

Get all that done and with cleaner air to breathe, fewer toxics in the stuff we ingest and surround ourselves with, and less worry about some big coal ash sludge washing over our lands, think of all the energy you will have to look at what else ails the environment.

Crossposted with TheGreenGrok | Follow us on Facebook

Leave a Reply

Your email address will not be published. Required fields are marked *