The Government’s Silence of Science

To understand the nature of the problem discussed in my last post, it is instructive to examine the story of coal ash in greater detail.  Scientists have known for many years that in sufficient doses, coal ash is toxic to human health.  The EPA first tried to regulate it in 1978, but a Congressional amendment two years later exempted it from oversight.¹This condition would persist until December of 2014 when new rules would require coal ash impoundments to be lined and located away from sensitive areas.  Impoundment and landfuls prone to leaking would have to be phased out.  However, the EPA did not go so far as to classify coal ash as “hazardous waste”, a designation that would have required far stricter regulation.  In 2000 the US Environmental Protection Agency (EPA) proposed stricter federal standards to classify it as hazardous.  Their recommendations were met by fierce opposition from the coal industry, electric utilities and members of the Clinton administration.  The Edison Electric Institute, an association of electric companies, argued that a “hazardous” designation would force the industry to spend up to an additional $5 billion in cleanup costs.  The EPA was compelled to reverse course and issue a notice that coal ash need not be regulated.

In 2002, EPA scientists produced a study on coal ash dumps which revealed that they pose significant risks to human health and the environment.  Rather than publicize the results, agency officials decided to redact or simply not release significant portions of their data.

It wasn’t until May 2009 that the Environmental Integrity Project (EIP) and Earthjustice uncovered the EPA’s original findings.  They learned not only that those in proximity to coal ash ponds were at a highly elevated risk of developing cancer but also that the Bush administration had been aware of those risks and actively chose to withhold them from the public.

Six months prior to this disclosure, the Kingston spill brought the problem into the national spotlight.  109 environmental organizations quickly pressured EPA administrator Lisa Jackson to respond to the coal fly ash problem.  The EPA soon revealed that the United States contained about 300 dry landfills and wet ponds used to store coal ash.  Many were unlined, increasing the risk of seepage into groundwater, rivers and ponds.  The agency concluded that of the 300, 44 posed a clear and present danger to local communities in the form of severe property damage or loss of life.

But the EPA was stymied again.  They were prohibited from releasing the locations of the 44 sites by the Department of Homeland Security who cited unspecified national security concerns.  A letter sent from the Army Corps of Engineers to the EPA and FEMA also demanded secrecy.  Steven L. Stocken, Army Corps’ director of civil works wrote, “Uncontrolled or unrestricted release (of the information) may pose a security risk to projects or communities by increasing its attractiveness as a potential target.”

“The industry has told us for decades that coal ash is perfectly safe,” said Eric Schaeffer, director of the Environmental Integrity Project.  “Now we’re told that some of their ash dumps are so dangerous, the federal government is afraid to tell us where they are. We need to move beyond this ‘see no evil’ approach, and regulate these unsafe practices.”

It required the continued efforts of environmentalists and the power of the US Senate to finally compel the EPA to reveal the locations of the 44 sites.  Barbara Boxer (D-CA), Chairman of the Senate Environment and Public Works Committee,argued strongly for the disclosure “so that people have the information they need to quickly press for action to make these sites safer.”

Since the locations of the 44 hazardous sites have become public, the magnitude of the coal ash problem has become harder to ignore.  There have been cases ofradioactive leakage into an underground aquifer in Florida, drinking water contamination in Maryland and a massive 300+ million gallon coal-mining sludge spill in Martin County, KY.

Another EPA study in 2009 concluded that chromium in coal ash is “nearly 100 percent Cr(VI),” a well-established highly toxic carcinogen.  A report by Earthjustice and Appalachian Mountain Advocates in 2011 claimed that contrary to prior estimates, there are actually over 700 coal ash dams, many of which are unlined and unmonitored.  A November 2010 Duke University study found that river sediment downstream of the Kingston spill contained 2000 parts per billion of arsenic, 200 times the EPA threshold for safe drinking water.  The authors concluded that coal ash waste ought to be classified as a hazardous substance.

Despite ample scientific evidence to the contrary, the coal industry continued to argue vociferously that coal ash was nothing to worry about.  The Nebraska Power Association wrote that federal “non-hazardous waste regulation” was sufficient and the alternative would limit its ability to usefully recycle coal ash.  The Competitive Enterprise Institute claimed that proposed regulations were just part of Obama’s “war on coal.”  The American Coal Council put out a factsheet that describes coal ash as “safe,” “valuable” and “not a hazardous waste,” though it should be noted most of the citations supporting the final claim are from the late 1990’s.

It was with these competing forces at play that the EPA proposed another set of coal fly ash regulations to the White House.  But the response of the Obama administration was the same as Bush’s.  Lobbyists met with the White House’s Office of Management and Budget (OMB) and neutered their proposal.  According to the nonpartisan Congressional Research Service, the resulting bills’ weakness were “unprecedented” in environmental law.

And so today, after the largest environmental disaster of its kind in American history and despite numerous reports detailing its potentially lethal impacts, coal fly ash remains unregulated in the United States.²While this was true at the original writing of this article, new regulations were enacted in December 2014.

Government deregulation and secrecy are not limited to the energy sector.  In October 2012 Nicholas Kristof, an Op-Ed columnist at the NY Times, brought the hazardous nature of formaldehyde to light.  Formaldehyde is a chemical found in everything from furniture to fabric softeners to nail polish and, according to scientists at the publicly funded National Institutes of Health (NIH),”formaldehyde is known to be a human carcinogen.”  Despite this critical warning, the American Chemistry Council, on the behalf of the chemical industry, is furiously lobbying Congress to suppress the full 500 page consensus Report on Carcinogens because it would cause “public confusion.”

Startling though it may be, the lack of government intervention is understandable.  Politicians have an incentive to kill regulations perceived as being against the business interests of their campaign contributors.  The Center for Responsive Politics (CRP) says that the mining industry which includes Murray Energy, theNational Mining Association, Arch Coal and Alpha Natural Resources poured more than $2.8 million to federal candidates during the 2012 elections.  Rep. David McKinley (R-WV), who sponsored a bill that would have prevented the EPA as designating coal ash as “hazardous,” received $230,000 in mining industry contributions, more than any other federal candidate.

Even when regulations are in place, federal agencies cannot always be trusted to enforce them.  In the 1960’s the Atomic Energy Commission, which had been charged with both promoting and regulating the atomic energy industry, became riddled with internal conflicts of interest.  Business considerations came to trump regulatory requirements to such an extraordinary extent that Congress decided to abolish the agency.

More recently the Minerals Management Service (MMS), the agency responsible for monitoring and regulating offshore oil drilling, became so cozy with the industry it was supposed to regulate that it literally let the American Petroleum Institute write its own regulatory rules.  Instead of acting as a watchdog of the public interest, the MMS referred to members of the oil industry as their “clients” and “partners.”  Environmental reviews were often waived altogether.  In the end, the lack of adequate safety standards contributed to the explosion of Deepwater Horizon, a catastrophe that killed 11 workers and polluted the Gulf of Mexico for three months.

The United States has a supposed remedy to this problem – a piece of legislation that grants the public the right to access federal agency records.  In the next article, I will demonstrate how the promise of this right often goes unmet.