One Clear Choice in Coal Ash Proposal, Environmentalists Say
by Matthew Madia, 5/5/2010
Yesterday, EPA released its long anticipated proposal to regulate toxic coal ash. The proposed rule actually contains two proposals between which the agency will choose, one to strictly regulate coal ash as a hazardous waste, the other to barely regulate it as a non-hazardous waste. “The difference between the two is stark,” according to a statement from five leading environmental groups.
“One option, which we believe is critical to protect public health and the environment, has federally enforceable standards for hazardous waste like those the rest of American industry follows in disposing of its hazardous waste. The other option treats this hazardous waste as if it were not loaded with high levels of arsenic and other toxic metals. We expect EPA to choose the option that adequately protects the public, particularly our precious groundwater, and treats this hazardous waste as a hazardous waste," said Scott Slesinger, legislative director for the Natural Resources Defense Council. The groups also point out that scientific evidence supports the first option.
The good news is that, after a public comment period, EPA will be free to choose the more environmentally protective option and abandon the weaker option. The bad news is, EPA will once again have to vet its decision through the White House Office of Information and Regulatory Affairs (OIRA).
OIRA reviews drafts of agencies’ proposed and final rules before they are released to the public. During the reviews, OIRA shares the drafts with other government agencies. OIRA also convenes meetings between the rulemaking agency and stakeholders. During the review of EPA’s coal ash proposal, OIRA convened at least 44 such meetings (that’s a record). OIRA held the draft for 200 days, even though reviews are supposed to last no longer than 90 days, with one 30 day extension permitted.
We may never get the full story on what happened during the OIRA review or how the proposal developed. The presentation of two regulatory options may have been in EPA’s proposal all along, or it may have been inserted late in the process as a sort of compromise between industry groups and environmental and public health advocates.
Regardless, based on the first review, it’s safe to be concerned that the OIRA review of a draft final rule will also take a long time and draw a lot of attention. The first review was for a proposed rule – a document that does not impose requirements but merely kicks off a public debate. The final rule will impose requirements, meaning the scrutiny and lobbying could be even fiercer.
Typically, agencies’ proposed rules present a single option and, for better or for worse, it is difficult to knock them off their chosen path. Association with a particular approach obligates agencies, in a practical and a political way, when the time comes to finalize the rule. Practically, because if the agency changes its mind it would have to remake the rule almost from scratch. Politically, because a change of direction opens the agency up to “Wait, but you said…” types of criticism.
But since EPA has not stated a clear preference between the two coal ash regulatory options, groups will fight to push EPA toward the option they believe is right, raising the stakes during the final development and review even higher.