After a long and politically controversial review, the U.S. Environmental Protection Agency announced today a proposal to regulate coal ash. The proposed rule is asking for public comments on two different regulatory approaches, one that would strictly regulate coal ash as a hazardous waste and one that would shift more coal ash management responsibilities to the local level (as with regular solid waste) but still allow EPA to regulate coal ash, albeit as a nonhazardous substance.

EPA’s action was prompted by a major coal ash spill in Tennessee and by growing concerns over the health effects of coal ash, a toxic byproduct of coal combustion, which can leak into water supplies. From EPA’s press release:

Today’s action will ensure for the first time that protective controls, such as liners and groundwater monitoring, are in place at new landfills to protect groundwater and human health. Existing surface impoundments will also require liners, with strong incentives to close the impoundments and transition to safer landfills, which store coal ash in dry form. The proposed regulations will ensure stronger oversight of the structural integrity of impoundments in order to prevent accidents like the one at Kingston, Tennessee. Today’s action also will promote environmentally safe and desirable forms of recycling coal ash, known as beneficial uses. 

On Oct. 16, 2009, EPA sent a draft of the proposed rule to the White House Office of Information and Regulatory Affairs (OIRA). As of yesterday, OIRA still had the rule under review. In the six-plus months that passed, OIRA hosted meetings with outside interest groups at least 44 times. The majority of those meetings included industry lobbyists, fueling concerns that the rule was being weakened under OIRA’s watch.

We do not know if OIRA’s review or any of the meetings it hosted had an impact on the rule EPA proposed today. The OIRA review process is not very transparent, and neither OIRA nor the agency is required to disclose at this point a copy of the draft submitted in October 2009. EPA often discloses communications between the agency and OIRA in its online rulemaking docket, but the docket has yet to be updated.

It’s about time that EPA went public with its proposal. For too long, development of the rule has included only Beltway insiders and largely precluded participation by ordinary citizens. Now, everyone can debate the two options EPA has proposed. EPA says it will open a 90-day comment period after the rule is published in the Federal Register. Keep in mind, this is only a proposal; EPA is not yet imposing any requirements as a result of today’s action.

Check back later for more on the content of the proposal and reactions from environmental advocates and others.