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After months of anticipation, the United States Environmental Protection Agency (“EPA”) released its 563-page proposal for regulating the disposal and management of coal combustion byproducts (“CCBs”) from coal-fired power plants.  Instead of offering a single approach, EPA requested comments on two options for regulating CCBs.  The first would regulate CCBs as a new “special waste” subject to many of the requirements for hazardous waste, while the second would regulate CCBs in a manner similar to typical solid waste, subject to far fewer and less stringent environmental requirements.  EPA would lead the first approach, the various States the second.  Either of EPA’s proposed options represents a seismic shift toward more comprehensive and expensive requirements for CCBs disposal and management.  And for certain utilities, EPA’s regulatory proposal effectively signals the end of ash pond disposal for CCBs.

On December 7, 2009, the U.S. Department of Energy (“DOE”) announced the issuance of a final rule amending certain provisions of its loan guarantee program for innovative technologies as authorized by Section 1703 of Title XVII of the Energy Policy Act of 2005 (“Final Rule”). The amendments reverse the DOE’s previous interpretation of two provisions of Section 1702 of Title XVII to require a superior first lien on any property acquired pursuant to a guarantee. The Final Rule was promulgated by the DOE after its review of all comments submitted in response to the DOE’s Notice of Proposed Rulemaking and Opportunity for Comment published on August 7, 2009 (“NOPR”). (Please refer to our summary of the NOPR circulated on August 7, 2009, for more information on the proposed changes.)

Congressional maneuvering during the past few weeks has dramatically altered the landscape for pending and proposed transportation legislation. Before June, legislation that would eliminate the nation’s freight railroads’ antitrust exemptions was moving swiftly through Congress as the Railroad Antitrust Enforcement Act of 2009 (introduced as S. 146 and H.R. 233).