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EPA coal ash rule receives criticism

Environmentalists and industry both seek clarity

WASHINGTON – Neither industry nor environmentalists are happy about a new Environmental Protection Agency rule to manage coal ash, details of which were heard by the Senate Committee on Environment and Public Works on Wednesday.

Industry representatives said the rule creates uncertainty and opens companies up to costly litigation. Environmentalists also wanted more clarity and had pushed for EPA to classify coal ash as a hazardous substance.

“Industry is probably breathing a sigh of relief – phew – that EPA will only regulate coal ash as solid waste under the Resource Conservation and Recovery Act,” said Mike Eisenfeld, New Mexico energy coordinator for the San Juan Citizens Alliance.

Eisenfeld is concerned that the “hazardous waste stream” of coal ash created by the Four Corners Power Plant is threatening the health of the San Juan River. Coal ash is created when the coal is burned.

Eisenfeld said with industry self-reporting, and because of state, federal and tribal jurisdictions, it’s really unclear who is liable for environmental damage.

General Manager of the South Texas Electric Cooperative Michael Kezar, and Frank Holleman, who testified on behalf of the Southern Environmental Law Center, seemed to agree on one point: that there should be a minimum national standard.

“Already, facilities are having to spend hundreds of thousands of dollars toward what they hope will be sufficient compliance, but with no regulatory agency endorsement of that compliance to protect them from abusive citizen suit litigation,” Kezar said.

But while Holleman praised the EPA for filling the void, Kezar wanted EPA to ratify states’ authority to design their own rules based on site-specific conditions.

“With legislation, EPA’s (coal-combustion residuals) rule can establish minimum nonhazardous waste criteria – a ‘floor’ which state regulatory programs can exceed but not fall below,” he said.

A bill introduced in the House in April would make states’ authority explicit, but would also relax compliance deadlines. It also would make exemptions from certain requirements, including one for disclosing permit acquisitions. It has the general support of Alexandra Dunn, executive director and general counsel for the Environmental Council of the States, who said she’s willing to work with the Senate to improve it, but that legislation clarifying nonlitigation-related enforcement of EPA’s rules is needed.

mbaksh@durangoherald.com. Mariam Baksh is a student at American University in Washington, D.C., and an intern for The Durango Herald.

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