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EPA proposes sweeping changes to coal ash rule, shifting power to states

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EPA proposes sweeping changes to coal ash rule, shifting power to states

The U.S. Environmental Protection Agency issued the first of what it says will be two proposals for revising a 2015 rule regulating the disposal of coal ash from the nation's power plants. Under the first proposal released March 1, more than a dozen provisions of the 2015 coal combustion residuals rule would be revised, including four provisions that are being litigated before the U.S. Court of Appeals for the District of Columbia Circuit.

In general, the proposal would provide states with more leeway to manage coal ash issues. For instance, the EPA proposed to establish alternative performance standards for coal ash disposal units with operating permits issued pursuant to an EPA-approved state or federal coal ash permit program. The agency is also requesting comment on whether regulated facilities could develop and implement similar alternative standards that would be subject to oversight and enforcement by EPA.

Instead of using background levels, the proposal would allow states to establish alternative risk-based groundwater protection standards for pollutants that do not have an established maximum contaminant level. The proposal also asks for comment on whether a facility should be allowed to "establish alternative risk-based standards using a certified professional engineer or other means, subject to EPA oversight."

The agency requested feedback on whether the deadlines set in the 2015 rule for certain compliance measures are appropriate considering new legal authorities and potential regulatory changes underway. Congress recently passed legislation that outlines new authorities for states to create their own coal ash management programs, and some states are working on submitting their own coal ash management plans for EPA review.

Under the proposal, states would be allowed to establish alternative requirements for how facilities respond to and remediate releases from coal ash landfills and surface impoundments. The EPA requested feedback on allowing states to determine when corrective action should be taken to repair an unlined surface impoundment that is leaking rather than forcing that facility to stop accepting new coal ash material.

The EPA also is considering adding boron as a pollutant that would trigger cleanup measures. The proposal would streamline administrative procedures for situations when a non-groundwater release can be addressed within 180 days. As for beneficial reuse of coal ash, the proposal would tweak the closure provisions to allow the use of coal ash during the closure process and noncoal ash waste to continue to be placed in a surface impoundment designated for coal ash.

In a statement, EPA Administrator Scott Pruitt touted the move as a way to provide additional flexibilities to states as they create their coal ash management plans. The agency estimated that the proposal will "save the utility sector up to $100 million per year in compliance costs."

No additional details on the second proposal were provided, although the EPA said it would propose those changes "later this year." The text of the proposed rule that was issued was not immediately available.