Second Coal Ash Proposal Added During White House Review
by Matthew Madia
May 11, 2010
The U.S. Environmental Protection Agency’s plans for a single, environmentally-protective proposal to regulate coal ash were changed during a six-month review at the White House Office of Information and Regulatory Affairs (OIRA). An internal administration document released Friday shows the significant edits made to EPA’s original draft.
The official version of the proposed rule released last week contains two regulatory options. The first would regulate coal ash (referred to as coal combustion residuals or CCRs in the document) as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option would avoid designating coal ash – a slurry of mercury, arsenic, and other toxins – a hazardous waste, instead subjecting it to standard, solid waste regulation under RCRA subtitle D.
That’s not how the proposal looked when EPA sent it to OIRA on Oct. 16, 2009. According to EPA’s original draft, “Given the potential risks from the mismanaged disposal of CCRs, […] EPA believes that regulating CCRs under subtitle C is the most appropriate option.” Apparently, something happened during the review to dissuade EPA of that belief. (More on that soon.)
There’s nothing wrong with proposing multiple regulatory options in a proposed rule. But the changes made to EPA proposed coal ash rule, when compared to EPA’s original submission, tilt the document away from the idea of stringent regulation.
Oh by the way, had EPA published its original submission, there would have been nothing to stop commenters from advocating for subtitle D regulation. In fact, EPA explicitly stated in that document, “The Agency solicits comment on all aspects of this proposal, including a number of alternative approaches […], such as regulation of CCRs as solid wastes under subtitle D of RCRA.”
But in the edited proposed rule, the subtitle D option is dramatically elevated, making it a steeper hill to climb for those advocating for subtitle C, the regulatory option most protective of public health and the environment.
Ultimately, I don’t think an EPA led by current administrator Lisa Jackson will choose an option outside of subtitle C regulation, which was, and likely still is, the agency’s preference. But the shift that occurred during the OIRA review – a review that will be repeated after EPA’s prepares a draft final regulation – and the upcoming contentious debate portend neither a smooth nor short path for the finalization of new, protective coal ash regulations.
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