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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Office of Investigations Special Report
Response to
EPA Administrator's Request
for Investigation into
Allegations of a Cover-up in
the Risk Assessment for the
Coal Ash Rulemaking
Report No. 10-N-0019
November 2, 2009
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Abbreviations
CCW Coal Combustion Waste
EPA U.S. Environmental Protection Agency
ERAS Economics and Risk Analysis Staff
FFC Fossil Fuel Combustion
NOD A Notice of Data Availability
OIG Office of Inspector General
OMB Office of Management and Budget
ORCR Office of Resource Conservation and Recovery
OSWER Office of Solid Waste and Emergency Response
RCRA Resource Conservation and Recovery Act
USWAG Utility Solid Waste Activities Group
VAP Voluntary Action Plan
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
November 2, 2009
MEMORANDUM
SUBJECT: Office of Investigations Special Report: Response to
EPA Administrator's Request for Investigation into Allegations
of a Cover-up in the Risk Assessment for the Coal Ash Rulemaking
Report No. 10-N-0019
J^X'v
FROM: Wayne A. McElrath **
Acting Assistant Inspector General for Investigations
TO: Administrator Lisa P. Jackson
U.S. Environmental Protection Agency
This is in response to your August 13, 2009, request that the Office of Inspector General
(OIG) investigate allegations of a cover-up or other misconduct related to the risk
assessment for coal ash raised during a 60'Minutes interview. That interview specifically
referred to questions pertaining to the U.S. Environmental Protection Agency's (EPA's)
2009 release of a 2002 constituent screening study. Based on your request, we reviewed
EPA activities pertaining to the draft risk assessment supporting the rulemaking process
for the disposal of coal ash in landfills and surface impoundments. While EPA has been
involved in a wide range of coal ash-related activities, the scope of this review was
restricted to the landfill and surface impoundment rulemaking and does not include
activities related to minefilling or beneficial use.
To respond to your request, the OIG Office of Investigations identified for investigation
and review two areas in the landfill and surface impoundment rulemaking process:
• control over release of scientific information during the rulemaking process, and
• undue outside influence affecting the rulemaking process.
Scope and Methodology
We performed our investigation from August 18, 2009, through October 15, 2009,
focusing on EPA actions regarding the rulemaking for disposal of coal ash in landfills
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and surface impoundments from May 2000 to September 2009. Specifically, we
interviewed an Office of Research and Development scientist as well as 19 selected
current and former Office of Solid Waste and Emergency Response (OSWER) senior
managers, staff, and scientists1 that we identified as having been involved in the
rulemaking. We also interviewed a senior counsel of an environmental nonprofit
organization that is publicly engaged in this matter and had filed a related Freedom of
Information Act request. In addition, we obtained electronic documents for review for
information relating to the coal combustion waste (CCW)2 rulemaking process.
We closed this investigation based on our determination that there was no evidence of
criminal activity or improper actions involving a cover-up in the risk assessment process
for the coal ash rulemaking.
Background
Fossil fuel combustion (FFC) wastes result from the burning of fossil fuels such as coal,
oil, and natural gas. These wastes include CCW, largely generated by coal combustion at
coal-fired utilities. CCW is one of the largest waste streams in the United States; EPA
estimated that approximately 131 million tons were generated in 2007. CCW typically
contains a broad range of metals (such as arsenic, selenium, and cadmium) and is
disposed of in landfills or surface impoundments, used as minefill, or beneficially used.3
EPA can regulate CCW pursuant to the Resource Conservation and Recovery Act
(RCRA).4 However, in what are referred to as the Bevill Amendments, Congress
excluded certain large-volume wastes (generated primarily from FFC) from regulation
under RCRA Subtitle C as hazardous waste until EPA completes a Report to Congress
and makes a regulatory determination on whether Subtitle C regulations were warranted.
(See RCRA Sections 3001(b)(3)(A)(i) and 8002(n)). EPA published the report to
Congress in 1999, followed by a regulatory determination in May 2000 retaining the
hazardous waste exemption under RCRA. EPA found that CCW disposal in landfills and
surface impoundments warranted national regulation under Subtitle D (for nonhazardous
solid wastes) but not Subtitle C (hazardous wastes).5 In its 2000 determination, EPA
recognized that CCW "could pose risks to human health and the environment if not
properly managed" and stated that it would revise its determination if it found a need for
regulation under Subtitle C as a result of public comment, further analysis, or
1 We use the term scientists in this document to refer to environmental scientists, geologists, and engineers
interviewed.
2 In this report we use the term CCW to refer to the material that is also referred to as coal combustion
residuals, coal ash, or fossil fuel combustion wastes.
3 EPA uses the term beneficial use to refer to the practice of using coal ash in applications that conserve
natural resources and reduce disposal costs, including, for example, as additions to cement and concrete
products, waste stabilization, and use in construction products such as wallboard.
4 We did not review EPA's CCW-related authorities or activities under other statutes (e.g., Clean Water
Act).
5 In the regulatory determination, EPA also found that minefilling warranted regulation under Subtitle D
and/or possibly the Surface Mining Control and Reclamation Act but concluded no additional regulations
were warranted for CCW to be used beneficially.
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information. While EPA has conducted various rulemaking-related activities since the
May 2000 regulatory determination, EPA has not issued a CCW rule for disposal in
landfills and surface impoundments.
Summary of EPA Rulemaking Activities for CCW Disposal in Landfills and
Surface Impoundments
Initiating Revised Risk Assessment Process
Between 2000 and 2006, EPA followed up on the May 2000 regulatory determination by
addressing public comments and updating the damage cases and the draft quantitative
risk assessment that had been prepared for the regulatory determination.6 The revised
CCW risk assessment provides information on human and ecological health risks that
EPA can use to develop CCW management options. In February 2002, EPA started the
updated risk assessment process by issuing a statement of work under an existing EPA
contract for a CCW constituent screening study. In October 2002, an EPA contractor
completed the CCW screening and constituent selection analysis to "identify CCW
constituents, waste types, receptors, and exposure pathways with risks below the level of
concern and eliminate those combinations from further analysis."7 EPA then tasked the
contractor to conduct a draft risk assessment based on those results but received an
incomplete draft risk assessment report on June 30, 2003, reportedly due to severe budget
constraints and the pending expiration of the contract. The responsible OSWER Work
Assignment Manager recalled that OSWER had pushed forward to complete what could
be done before the contract ended because OSWER had limited funding and resources.
In 2005, the same contractor also completed a draft sensitivity analysis for the CCW risk
assessment that would validate specific data and confirm that the results were
scientifically accurate.
CCW Rulemaking Status, 2003-2006
While EPA continued to conduct CCW-related activities,8 no evidence was identified of
further specific activities on the risk assessment until late 2006. Two e-mails indicated
that Office of Resource Conservation and Recovery (ORCR)9 staff involved in the
6 EPA stated in an August 29, 2007, Notice of Data Availability that".. .because time constraints
precluded the Agency from addressing public comments on the draft study, EPA did not use the draft risk
assessment in making its Regulatory Determination; rather it relied on the damage cases identified."
(72 Fed. Reg. 49717)
7 Constituent Screening for Coal Combustion Wastes, Work Assignment 3-43, Contract No. 68-W-98-085,
Oct. 2002 (page 1-2).
8 CCW activities (2003-2006) also include the Resource Conservation Challenge to increase reuse and
recycling of industrial materials and the associated Coal Combustion Products Partnership program;
discussions with the Utility Solid Waste Activities Group about its voluntary action plan; a series of public
meetings in spring 2004; work with Department of the Interior on minefilling regulations; further
assessment of alleged damage cases; work on the rule's economic analysis; and coordination with
Department of Energy on a CCW management report (published in 2006). EPA provides an FFC Waste
Legislative and Regulatory Timeline at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/regs.htm.
9 OSWER's Office of Solid Waste changed its name to the Office of Resource Conservation and Recovery
effective January 18, 2009.
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rulemaking process believed that the former Deputy Assistant Administrator for OSWER
had or would be suspending the rulemaking in the summer of 2005. In an interview, the
ORCR Work Assignment Manager for the risk assessment confirmed that this Manager
believed the rulemaking was suspended. However, the ORCR Director stated that the
rulemaking process was not put on hold, and that EPA was pursuing the rulemaking
process on a parallel basis while it explored nonregulatory options such as an industry
voluntary action plan proposal. The ORCR Director stated that work on the rule did not
stop because EPA was still conducting work on risk, damage cases, and the economic
analysis for the rule, but that Director could not specifically answer who may have
stopped working on any given activity in the July 2005 to March 2006 timeframe.10
When interviewed, the former Deputy Assistant Administrator for OSWER did not recall
making a decision to stop the review process, but he stated that he did not have clear
recollection of this time period. Regardless of whether ORCR or OSWER suspended or
recommended suspension of work11 on the rulemaking, because this was a Tier 1 rule, the
ultimate decision as to whether the rulemaking process was to continue rested with the
Deputy Administrator of the Agency. EPA guidance states that Tier 1 actions, such as
this rule, "require a formal options selection step involving the Administrator or Deputy
Administrator's Office." EPA did not officially announce a suspension or reversal of the
2000 determination committing it to issuing a rule.
Publication of Notice of Data Availability
By mid-2006, documents obtained showed further consideration by EPA of the
rulemaking for disposal of CCW in landfills and surface impoundments. The ORCR
Director stated that conclusions from a July 2006 briefing on the rulemaking for EPA's
Deputy Administrator were that EPA should reassess its regulatory commitment and
issue a Notice of Data Availability (NODA). OSWER staff were aware of the EPA
Deputy Administrator's expectation that aNODA would be submitted to the Office of
Management and Budget (OMB) by late September 2006 and that it would seek public
comments as to how additional information should affect the Agency's decisions as it
continued to follow up on its regulatory determination for CCW disposed of in landfills
and surface impoundments.
EPA extended an internal deadline in response to citizen groups' complaints, voiced
during an October 2006 meeting, that the groups did not receive equal consideration with
industry in the rulemaking process and was requesting formation of a Federal Advisory
Committee Act committee. While the Assistant Administrator for OSWER rejected the
10 The Deputy who became the ORCR Director over the time period in question stated that while following
up on the regulatory determination, OSWER was also addressing other programmatic obligations. For
example, in addition to the CCW rulemaking efforts, the Director described other priorities, such as
clean-up after September 11, 2001; court-mandated deadlines involving listings and the combustion rule;
revision of the definition of solid waste; and running the hazardous waste clean-up program.
11 The ORCR Director also recalled at one point recommending stopping work on the rule because the
revised risk assessment did not appear to show significantly different results from the 1999 assessment, the
Department of Energy/EPA survey showed practices improving, and the potential hurdles in the OMB
review process due to the economic analysis were cause for concern.
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Federal Advisory Committee Act request, an extension to January 31, 2007, was granted
to allow the citizen groups to submit a draft proposal of a CCW rule. The Utility Solid
Waste Activities Group (USWAG), an informal consortium of utility operating
companies and others, also submitted its plan to EPA.
On March 15, 2007, EPA submitted the NODA and associated draft risk assessment to
OMB for review and comment. EPA published the NODA in the Federal Register on
August 29, 2007, and established the public docket. EPA included both the citizen
groups' and USWAG's proposals in the docket for comment. EPA extended the NODA
comment period twice (first to January 28, 2008, and again to February 11, 2008). The
draft risk assessment dated August 2007 was included in the public docket in August
2007;12 however, the 2002 constituent screening analysis and the 2005 sensitivity
analysis referenced in that 2007 draft risk assessment were not included in the docket at
that time. After the NODA comment period closed, EPA commissioned a peer review of
the draft risk assessment that was completed in September 2008.
2009 Posting of 2002 Screening and Sensitivity Studies in the Docket
EPA received a memorandum dated September 25, 2008, providing peer review
comments on the draft risk assessment, which noted that the 2002 constituent screening
analysis and a 2005 sensitivity analysis were not available. After EPA received the
memorandum and reviewed the information as well as a related Freedom of Information
Act request in early 2009, an OSWER scientist determined that the screening document
was not in the docket and informed the Chief of the Economics and Risk Analysis Staff
in the Program Management, Communications, and Analysis Office (ERAS Chief) that
EPA needed to correct the oversight. The ERAS Chief requested that the screening
analysis be placed in the docket, and it was posted in the public docket on March 4, 2009.
For the 2005 sensitivity analysis, the same OSWER scientist in the Office of Superfund
Remediation and Technology Innovation confirmed that the sensitivity analysis
information should also have been included in the 2007 risk assessment and the docket.
The ERAS Chief also recalled requesting its inclusion in the docket after being informed
of its absence by the OSWER scientist; however, the ERAS Chief stated that after finding
out much later that the sensitivity analysis had not been placed into the docket, the matter
was discussed with the ORCR Director who gave permission to post it. While not
currently posted, we were informed that the 2005 sensitivity analysis will be placed in the
docket that will be created for the CCW proposed rule. We were also informed that EPA
had been addressing errors found in the 2005 sensitivity analysis and is finalizing it as
support for the rulemaking. According to the ERAS Chief, the revised sensitivity
analysis will undergo OMB review and be placed in the docket for the proposed rule.
12 The final draft risk assessment, Human and Ecological Risk Assessment of Coal Combustion Wastes
(August 6, 2007), notes that "the full-scale risk assessment.. .was mostly conducted in 2003...."
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Rulemaking Status in 2009
The Tennessee Valley Authority surface impoundment coal ash spill in late December
2008 increased attention on the disposal of CCW. The topic of CCW management was
addressed during the Administrator's January 2009 confirmation hearing, where she
stated that EPA would address the threat from huge piles of toxic coal ash stored at
hundreds of other coal-fired power plants around the country and that regulation of coal
ash was also being considered.
While EPA's regulatory agenda shows no legal deadlines for a proposed rule on
standards for the management of coal combustion residuals generated by commercial
electric power producers, it shows a proposed issuance date of December 2009.13 In
April 2009 congressional testimony, the Acting Assistant Administrator for OSWER
stated that EPA is evaluating different approaches for regulating coal ash, including
revising its May 2000 regulatory determination and considering whether to include
impoundment integrity in its regulatory development. EPA also reconfirmed its
commitment to issuing proposed regulations by December 2009.
Analysis of Findings
EPA has not published a proposed rule on CCW landfill and surface impoundments in the
approximately 9 years since its regulatory determination on CCW disposal in landfills
and surface impoundments. We found that this rulemaking moved slowly at times for
various reasons. Resource constraints were raised as an issue related to the draft risk
assessment report received in 2003. Some additional reasons provided by the ORCR
Director included EPA's focus on other programmatic priorities, concerns about OMB
approval, and exploration of nonregulatory options. We did not find evidence of criminal
or improper activities causing delays during this rulemaking process. While this
rulemaking may not always have been a high priority for EPA, our review also found that
EPA is committed to issuing a proposed rule by December 2009.
Findings Regarding Control over Release of Scientific Information during the
Rulemaking Process
We concluded that there is no evidence of any effort to improperly suppress the release of
scientific information during the rulemaking process. The CCW risk assessment was
initiated in support of the Agency's rulemaking process. While EPA received an initial
draft of the risk assessment in 2003, at that time EPA considered it incomplete. The draft
risk assessment was finalized for public comments in August 2007 and refers to the 2002
constituent screening study and 2005 sensitivity analysis. As described above, OSWER
staff stated that the omission of the 2002 screening study from the NODA docket was an
oversight that was corrected by entering it in the public docket in March 2009. While the
responsible staff also determined that the 2005 sensitivity analysis should be posted, this
13 EPA's Spring 2009 Semiannual Regulatory Agenda is available at
http://www.epa.gov/regulations/search/regagenda.html.
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did not occur. We were informed that the 2005 sensitivity analysis as well as a revised
sensitivity analysis are to be included in the docket for the upcoming proposed rule. We
found no evidence to suggest that the initial omission of these documents was intentional.
We interviewed EPA scientists involved in the CCW rulemaking process to determine
whether scientists were compelled to withhold scientific information or directed not to
continue any related studies during the rulemaking process. Such restrictions would be
beyond EPA's general restriction on sharing deliberative information with the general
public. Interviews of EPA scientists involved in the rulemaking process did not reveal
any directions to discontinue studies on CCW nor orders to withhold information relevant
to the rulemaking.14
Findings Regarding Outside Influence Affecting the Rulemaking Process
We found no evidence of any undue outside influence affecting the rulemaking process.
The rulemaking process provides for EPA's engagement with interested stakeholders as
well as for interagency coordination and review by OMB. We reviewed documents and
interviewed EPA staff to determine whether they perceived any undue influence or
interference from outside of EPA during the rulemaking process. We defined a potential
universe of outside influences as environmental organizations, State organizations,
industry groups, and federal entities other than EPA. Based on interviews and document
reviews, we determined that no undue influence from any outside party affected the CCW
rulemaking process.
We did not identify any perceptions of undue outside influence since the 2000 regulatory
determination in interviews with the former Deputy Assistant Administrator for OSWER;
the ORCR Director; and staff, scientists, and an Agency attorney involved in the CCW
rulemaking process. The ORCR Director explained that USWAG had at one time
proposed that EPA sign a memorandum of understanding supporting a Voluntary Action
Plan (VAP) as an alternative to regulation. While the former Deputy Assistant
Administrator for OSWER indicated they might reconsider the rulemaking process if the
VAP resulted in significant improvement, they had refused to commit to stopping work
on the rule. EPA never formally reversed the 2000 Regulatory Determination and
pursued the VAP approach and the rulemaking process on a parallel basis.
We further found no evidence of undue outside influence in the EPA CCW rulemaking
during the OMB review process. OMB reviewed the CCW NODA and provided detailed
comments on almost every aspect of the risk assessment process. The Director of the
Economics, Methods, and Risk Analysis Division at the time confirmed that the majority
of OMB comments dealt with the tone of EPA risk language and how EPA presented
acceptable risks.15
We identified a potential issue related to EPA's promotion of beneficial use through its Coal
Combustion Product partnership and have referred the question how EPA established a reasonable
determination for these endorsements to the appropriate OIG office for evaluation.
15 Changes between the document submitted to OMB and the final version can be found in the public
docket (EPA-HQ-RCRA-2006-0796') at http://www.regulations.gov.
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Conclusion
As noted above, we closed this investigation because we found no evidence warranting
additional inquiry into the rulemaking process for CCW disposal in landfills or surface
impoundments.
The estimated cost of this report - calculated by multiplying the project's staff days by
the applicable daily full cost billing rates in effect at the time - is $222,612.
If you have any questions or need additional information, please do not hesitate to contact
me at (202) 566-0875.
cc: Bill Roderick, Acting Inspector General
Mathy Stanislaus, Assistant Administrator, OSWER
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