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Mo. coal ash plan weaker than federal permitting rule, US EPA says

The U.S. Environmental Protection Agency said several elements of Missouri's proposed coal ash management plan are weaker than an Obama administration-era rule, indicating that the state may need to revise the program to win federal approval.

The Missouri Department of Natural Resources, or MDNR, started crafting its own regulations for the management and storage of coal residuals — a byproduct of burning the fuel for electricity — after Congress in 2016 passed legislation to give states more control over permitting for coal ash storage ponds and landfills.

The Water Infrastructure Improvements for the Nation Act allows states to submit their own coal ash permitting programs to the EPA for approval provided those programs are as protective as the agency's 2015 Coal Combustion Residuals, or CCR, rule, which set the first-ever national standards for the safe handling and storage of coal ash.

Missouri is the third-most coal-reliant state in the country, drawing 81% of its electricity from coal-fired generation in 2017, according to the U.S. Energy Information Administration. The state has at least 38 unlined coal ash ponds alongside rivers and lakes, according to public comments submitted by the Washington University in St. Louis School of Law. Where groundwater monitoring data is available, it shows that coal ash ponds are contaminating underlying groundwater "often at concentrations multiple times federal drinking water standards," the school said.

In February, the MDNR published proposed language for a state-run coal ash permitting program largely supported by electric utility groups and St. Louis, Mo.-based Ameren Energy Inc., the state's largest investor-owned utility.

However, comments filed recently by the EPA indicate that the proposed program is weaker than the 2015 CCR rule in several respects. The agency specifically noted that the proposal would allow standards and techniques at individual storage facilities "other than those outlined in the rule, upon demonstration to the [MDNR]."

"This provision is inconsistent with the federal program," the EPA explained.

The EPA noted that the proposal would adopt a risk-based approach to groundwater cleanup, including a provision that would allow the MDNR to waive corrective action if contaminated groundwater is not reasonably expected to be a source of drinking water. Under the federal rule, cleanup efforts are required when certain levels of toxic pollutants are detected.

In addition to a range of other issues, the EPA observed that the MDNR's proposal failed to include the CCR rule's requirement for utilities to post groundwater monitoring data on public-facing websites.

Under former EPA Administrator Scott Pruitt, the agency in June 2018 approved the nation's first state-run coal ash permitting program for his home state of Oklahoma. Environmental groups have challenged that approval in the U.S. District Court for the District of Columbia, arguing that the program is weaker than the CCR rule.

The Trump administration also is in the process of revising the CCR rule after the U.S. Court of Appeals for the District of Columbia Circuit in August 2018 struck down several provisions of the Obama-era rule as too weak, ruling that all unlined coal ash ponds across the country must close. Storage facilities that are noncompliant with the CCR rule must initiate closure by October 2020 under current regulations, but the D.C. Circuit's ruling left the deadline for compliant ponds up in the air.

Ameren and its subsidiary Ameren Missouri reported $135 million in asset retirement obligations associated with coal ash storage facilities on their respective balance sheets as of Dec. 31, 2018, according to the corporation's latest Form 10-K filing. The utility said it plans to close those facilities between 2019 and 2023, estimating that it will need to make capital expenditures of $150 million to $200 million over that span to comply with state and federal regulations. The company's compliance plan includes the installation of dry ash handling systems, wastewater treatment facilities and groundwater monitoring equipment.

Written comments on the MDNR's proposal are due March 28.