Inside The EPA's Regulatory Rollback Machine

Jan 19, 2018

The Trump administration has rolled back 60 environmental policies at last count. But what does this rollback mean and how it is affecting the work of the agency charged with protecting America’s environment and public health? ProPublica reporter Talia Buford dug into the story of one EPA rule that took the agency a decade to craft and the Trump administration just months to undo. The rule was meant to keep toxic waste out of rivers and streams. Now it’s in limbo as the EPA has decided to open it back up for review.

Kara Holsopple: OK so let’s start with the origin of this rule. Why did the EPA find it necessary in the first place?

Talia Buford: Sure. So the rule is called the Steam Electric Effluent Limitation Guidelines. And just to start at the beginning, “effluent” is wastewater that’s allowed to be discharged into rivers and lakes. It’s a byproduct of 59 different industries from commercial animal farms and landfills to soap companies and dental offices. And this wastewater often contains dangerous toxins like mercury. The guidelines for effluent for coal-fired power plants haven’t been updated since the 1980s and that’s when EPA said that settling ponds —  literally allowing the coal ash wastewater to settle and then siphoning the clean water from the top of the pond — were the latest cutting edge technology. So when the EPA noticed a high concentration of toxins coming from wastewater they hadn’t seen before in the 2000s, they started to study it to figure out how best to address it. And so that’s kind of where this rule and the impetus of this rule came about.

Reid Frazier:  So can you just explain where in the coal-fired power plants this effluent is coming from? Is it an air emission ? What is this effluent?

Talia: All coal plants are a little bit different, but generally there are things called scrubbers that capture a lot of the pollution that’s going into the air. And then there are boilers that create the steam that powerful power plants run on. They are powered using coal. And so eventually you have to clean a lot of these components with water sometimes. And that water has got all the residue from the stuff that didn’t burn all the way. And what they do is they take that and they kind of siphon it into a holding pond. There are many different ways that you can kind of handle this wastewater, but one way that companies do it is to just put it into a pond and go from there.

Kara: So EPA noticed there was an issue with this effluent, especially the kind that comes from coal. And they started researching it during the Bush administration, in 2005. And it took a long time to research and craft. Why did it take so long?

Talia: Well partially because EPA was doing a lot of work. As part of its research, the EPA created a 400 page survey. They sent it to 733 different facilities just to understand how they handle their wastewater. And then EPA scientists visited 73 facilities in 18 states, and they flew to southern Italy to check out technology that was already in place at a facility there. This was not a surface level sort of inquiry. They really wanted to understand what technology was already out there. They wanted to understand what was possible and try to figure out where to go from there. Another thing that is important to remember is that the EPA has a lot of different rules that it has to handle. And so sometimes depending on the priorities of an administration certain roles may get pushed onto the back burner. And so during the Bush administration,  a lot of this groundwork was happening behind the scenes because the administration had other priorities. And so by the time the Bush administration was on its way out, the scientists had a amassed troves of information about what this  wastewater did, how it was handled and what they thought was possible. And that’s how they were able to really hit the ground running [when] the Obama administration came into power.

Reid: What did the scientists find about effluent’s impacts on the environment that was so alarming to them?

Talia: So before they started doing this study, I think that most of the industry didn’t really think that effluent had a huge impact on the environment. But we had a big push to remove air pollution from coal-fired power plants, and that pollution was being pushed into the waste stream in some cases. A certain concentration of mercury or selenium might not have a huge effect on an ecosystem, [but] when you exponentially increase that, it can definitely cause things to go awry. What they found is that tadpoles and bullfrogs were missing entire rows of teeth; they were just deformed. And there were also some fish kills based on high levels of selenium. You really saw the animal ecosystems really taking it on the chin from a lot of these chemicals from the effluent.

Reid: And the people who were studying this, they went back and checked their data again didn’t they? Isn’t that part of why this rule took so long to formulate?

Talia: The Obama administration was creating a bunch of different rules all at the same time, all focused on the coal industry. And each office that was responsible for one of these very different rules had to make sure that [they were] not duplicating efforts, not negating the efforts of the other, and that these rules work together. They had to double-check a lot of their calculations. So, for example, the team that was involved with creating the effluent role collected their data in a very specific detailed way that got down to the minutia at a particular plant. Meanwhile, the coal combustion residuals rule, which is essentially another side to the same coin, collected their data at a much higher aggregate level. And so you had to make sure that the calculations were going to be apples to apples comparisons. And because EPA at that time was really interested in making sure their rules were sound and legally defensible, they considered all of the data that people were giving to them whether it be from industry, about how much a rule or technology would cost —  they went in and evaluated it. And Betsy Southerland, who is one of the main sources that I spoke to for this story, she led that charge. And she said that they had people working around the clock at some points really evaluating this data, making sure that it didn’t impact the analysis and didn’t change what EPA thought was going to be the effect of this rule on the industry.

Kara: Tell us a little bit more about Betsy Southerland. She’s kind of become almost mythic in environmental circles.

Talia: Betsy Southerland has been a 30-year employee of the EPA. She is an engineer by training. She’s been through different administrations of different political parties, so she really understood that there is an ebb and flow during all of these transitions. She really shed a lot of light on how this transition was so much different for her than previous transitions had been. Before, regardless of whether or not you agreed with a political party that was in office, there was mutual respect and an acknowledgment that the staffers have a certain level of expertise., and respecting that and saying, OK, well at least I want to hear what you have to say. And when she talked to us about what it was like inside the agency in the lead up to her retirement, she said that  was definitely not the case. It was hard to get an audience with key decision makers. They didn’t get kind of the robust back and forth that you would expect when you’re debating a rule, or especially rescinding a rule, that had been so meticulously crafted.

Kara: And we should say that’s exactly what happened. After all these years of research by EPA scientists — and they were even starting to help states figure out how they’re going to implement this rule — Betsy Southerland got a press release that said we’re going to be probably looking at rescinding this rule.

Talia: The EPA is a very large organization, but in terms of managers, it’s a pretty streamlined chain of command. And so what Betsy was telling me is that there’s only a handful of people between her and the administrator – one or two. And so for Betsy Southerland to be at the head of the office of science and technology within the Office of Water, the one office that is responsible for this rule, to hear that a rule that she had been working on for years was being rescinded through a press release is kind of unconscionable.

Reid: Before that announcement is made, you write about a scene where Betsy Southerland and her lieutenants finally get a meeting with Scott Pruitt. And they present their case for it and afterwards they’re feeling pretty happy about it.

Talia: The staffers had been working for weeks to try to talk to people of influence within the agency.  They were hoping to get to Pruitt much earlier, but his schedule was booked so they worked on people around him. They met with people from general counsel and other political appointees to say here’s what we think about how we crafted the rule, why we think it’s necessary, and here’s what we think our response should be. They finally got two briefings with Pruitt. The first briefing, they laid out the situation we have, here are alternatives, here’s the options, here’s what we think. And then in the second briefing, they literally just laid out the two courses of action: repeal this entirely or change a couple of smaller things. What Betsy told me is at that point, they had done all of these different briefings with the political appointees and they hadn’t gotten any negative feedback. And so they really thought that maybe they’re convinced that this is the best way to go. And so when they got to the meeting with Pruitt, they said it was much more of a monologue. He did ask a couple of questions but there wasn’t a lot of interrogation of what they were presenting to him. And so when they walked out, they really thought, OK, there was no pushback. And so they thought that you know they had won the day.

Kara: They took it as a positive sign. I love reading about it in your story because it’s kind of like an emotional arc in the middle of your story. They’re hopeful and they’re feeling like all of this work that they’ve done is not going to get totally nixed.

Talia: These are folks who have worked on this rule inside and out. They are the people who actually wrote the rule. And so they’re like whatever criticism the industry has about this rule, we have an answer. They were ready. And then to find a couple of days later that they were completely wrong — they just told me they were crestfallen. They really did not expect it. They really were thinking that their logic would win the day.

Kara: An EPA spokesperson that you talked to for the story said that this is part of an administration wide kind of idea that they want to protect the environment but not at the cost of business or the economy. But from your story it seemed to me that there were very few coal-fired power plants that would actually be affected by this rule.

Talia: So even at the time that the rule was finalized, a couple of years ago, there were less than a 130 plants in the entire country that would have been required to implement this new technology. And that’s because a lot of this technology is already in use by the industry. Some people are meeting the qualifications already or they’re exceeding them. So this rule would have impacted about 12 percent of coal-fired power plants in the entire country.

Reid: Now that you’ve taken this granular look at how the EPA has been functioning over the last few months, what does this story say to you about the direction of the EPA right now and what we can expect in the next few years?

Talia: I think it tells us even more so what we’ve come to know over the last 12 months — that this is an unprecedented administration. And that operations especially at EPA are unfolding in a way that is unprecedented. And we’ll continue to see EPA Administrator Scott Pruitt pushing forward on this on this agenda which is President Trump’s agenda to really roll back environmental protections, and to shrink the size of the EPA, and really put a lot more responsibility on the part of the states.

Kara: Environmentalists were really key in pressing the EPA to move forward on this effluent rule and pressing back against industry. I’m just curious if the EPA was threatened with a lawsuit, is there any way the administration might back down?

Talia: This is a very obscure rule. So when people think coal ash, they do not think effluent. They think you know coal ash ponds, they think coal power plants, because it’s essentially invisible. It’s a pipe underground. It’s not something that you’re just going to run across when you’re kayaking. There were a handful of people who were working on effluent, and those people are very passionate and very knowledgeable. But the vast majority of folks who are everyday environmentalists working on issues in their community, they’re not thinking about effluent. There are a number of different groups challenging the procedures around the way that this was handled. Whether or not any of them will be successful, I have absolutely no clue. But I think that definitely won’t stop them from trying.

Kara: What about Betsy Southerland? She retired very soon after all of this sort of drama unfolded. And I don’t know if that had anything to do with her retirement, but she certainly had a lot to say. She made her retirement letter public about how this impacted her and also the people who work at EPA.

Talia: Betsy did retire for personal reasons not in protest of Pruitt. But I think she was very concerned about the direction that she saw the agency moving, and that’s part of the reason why she made her letter public. She has kind of become a face of essentially that federal agency resistance. And I think it’s partially because she feels that she has a duty to speak up for her co-workers who maybe can’t speak up about some of the things that they’re seeing. Betsy Southerland was a fairly high-ranking person within the agency. She understood a lot of the technical stuff and a lot about the process. And so she can give you a lot of context about what these actions mean and how they compare to previous administrations. So I think that’s been a part of it. When we spoke for this story she was being inundated by reporters wanting to talk to her because there aren’t as many people as vocal and as clear about some of these very technical things that EPA handles.

Talia Buford is a reporter for ProPublica. You can follow her on Twitter at @TaliaBuford. And you can read her entire story about the fate of the effluent rule here. Listen to Kara and Reid’s entire interview with Talia on our podcast, Trump on Earth.

Find this report and others on the site of our partner, Allegheny Front