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 
Abbreviations 

CCW Coal Combustion Waste 

EPA U.S. Environmental Protection Agency 

ERAS Economics and Risk Analysis Staff 

FFC Fossil Fuel Combustion 

NODA 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 
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 

FROM: Wayne A. McElrath 

Acting Assistant Inspector General for Investigations 

TO:	 Administrator Lisa P. Jackson 

 Report No. 10-N-0019 

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 a NODA 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 

14 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 

8