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New EPA guidance provides FAQ for developing state coal ash plans

The U.S. Environmental Protection Agency has issued interim final guidance for states that wish to create individualized coal ash permitting programs consistent with the Water Infrastructure Improvements for the Nation, or WIIN, Act.

Passed by Congress in December 2016, the WIIN Act provides states with more control over coal ash regulation. The legislation tasked the EPA with creating guidance on how states can voluntarily create and submit their own permitting programs that operate in lieu of federal coal ash requirements. If a state chooses to do so, the requirements of its program must be either consistent with, or at least as protective as, the federal requirements. The agency will have 180 days to respond to a state plan and must provide for a period of public comment before approval. Once in place, state coal ash programs must be reviewed every 12 years.

The guidance gave no specific deadline for a state to indicate interest in submitting a plan to the EPA or to complete such a plan. If a state chooses not to craft its own plan, the federal coal ash requirements will continue to apply to each regulated unit operating within it. The EPA also may create a federal permit program to apply to units in a state that opts not to create its own, but an EPA spokesperson said such a program would be "subject to the availability of appropriations specifically provided in an appropriations act" for that purpose.

"A [coal combustion residuals] unit must comply with the federal rule until a permit is issued under an approved State or federal program," the spokesperson said.

According to a July draft budget proposal for fiscal year 2018 from the U.S. House of Representative's Appropriations Committee, $2 million would be set aside to complete the EPA's guidance on the WIIN Act. The draft budget acknowledged that additional funds would be needed for state grants to implement the programs but noted that states were still awaiting the EPA's guidance at that time. The House said it intended to revisit the matter once final deliberations for the fiscal-year 2018 budget bill begin.

The WIIN Act imposed some restrictions on how the EPA can handle enforcement actions. The agency can only commence an administrative or judicial enforcement action if the state requests one or if the EPA determines such an action is necessary to ensure a coal ash facility is operating in accordance with a permitting program that is in place. Before taking action, however, the EPA must notify the state.

If an enforcement action is to take place in a state with an EPA-approved state plan, the agency must submit a report to the U.S. Senate's Committee on Environment and Public Works and to the House Committee on Energy and Commerce by the end of the year in which the action takes place.

The EPA will accept public comment on the guidance for 30 days and may make changes as applicable.