Title of Regulation: 9VAC20-81. Solid Waste Management Regulations (amending 9VAC20-81-800, 9VAC20-81-810, 9VAC20-81-820).

Statutory Authority: § 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.

Effective Date: May 3, 2017.

Agency Contact: Justin L. Williams, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4185, FAX (804) 698-4234, TTY (804) 698-4021, or email justin.williams@deq.virginia.gov.

Summary:

On August 5, 2016, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register titled "Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Extension of Compliance Deadlines for Certain Inactive Surface Impoundments; Response to Partial Vacatur." The federal rule became effective October 4, 2016.

The revised federal rule modified the requirements certain inactive coal combustion residuals (CCR) surface impoundments are required to meet. Prior to this rule, federal regulations allowed inactive CCR surface impoundments to complete closure by April 17, 2018, and meet other notification requirements (early closure provision) to avoid having to meet the same requirements as existing CCR surface impoundments. In response to an order of the United States Court of Appeals for the District of Columbia Circuit, the federal rule now requires inactive CCR surface impoundments that were complying with the early closure provision to meet the same requirements as existing CCR surface impoundments, which includes meeting the requirements for design, operating criteria, groundwater monitoring, corrective action, closure care, and post-closure care. EPA extended the compliance deadlines for qualifying inactive CCR surface impoundments to comply with these requirements.

This regulatory action amends Virginia's Solid Waste Management Regulations to incorporate the recently adopted federal standards concerning coal combustion residuals.

Part VIII
Requirements for the Management of Coal Combustion Residuals

9VAC20-81-800. Adoption of 40 CFR Part 257 Subpart D by reference - Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments.

A. Except as otherwise provided, those regulations of the U.S. Environmental Protection Agency set forth in Subpart D of 40 CFR Part 257 promulgated as of October 4, 2016, wherein they relate to standards for the disposal of coal combustion residuals in landfills and surface impoundments, are hereby incorporated as part of the Virginia Solid Waste Management Regulations, 9VAC20-81. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are a part of incorporated sections of 40 CFR Part 257 are also hereby incorporated as part of the Virginia Solid Waste Management Regulations.

B. In all locations in this chapter where text from 40 CFR Part 257 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into this chapter. The following terms, where they appear in the Code of Federal Regulations shall, for the purpose of this chapter, have the following meanings or interpretations:

1. "Director" shall supplant the "State Director" wherever it appears.

2. "Qualified professional engineer" or "engineer" means a "professional engineer" certified to practice in the Commonwealth of Virginia as defined in 9VAC20-81-10.

C. Definitions in 40 CFR 257.53 are incorporated by reference into this part and are applicable to CCR landfills and CCR surface impoundments.

9VAC20-81-810. Permits for CCR landfills and CCR surface impoundments.

A. CCR landfills are a specific type of industrial landfill. Permit requirements for industrial landfills are outlined in Part III (9VAC20-81-100 et seq.) and Part V (9VAC20-81-400 et seq.) of this chapter and must be complied with in addition to the requirements applicable to CCR landfills found in this part. Existing CCR landfills shall submit a complete permit application no later than October 17, 2017. Owners and operators of new CCR landfills are required to submit to the director a permit application for an industrial landfill that meets the requirements of this chapter and receive a permit for an industrial landfill prior to the initial receipt of CCR in the CCR unit. An application for a CCR landfill or lateral expansion of a CCR landfill shall include the following:

1. Location restriction demonstrations required by 40 CFR 257.60, 40 CFR 257.61, 40 CFR 257.62, 40 CFR 257.63, and 40 CFR 257.64, as applicable;

2. Description of the CCR landfill's design criteria required by 40 CFR 257.70 (new CCR landfill or lateral expansion of a CCR landfill);

3. Description of how the CCR landfill's operating criteria required by 40 CFR 257.80, 40 CFR 257.81, and 40 CFR 257.84 are met;

4. Explanation of how groundwater monitoring and corrective action criteria required by 40 CFR 257.90, 40 CFR 257.91, 40 CFR 257.93, 40 CFR 257.94, 40 CFR 257.95, 40 CFR 257.96, 40 CFR 257.97, and 40 CFR 257.98 are met;

5. Explanation of how closure and post-closure care requirements found in 40 CFR 257.101, 40 CFR 257.102, 40 CFR 257.103, and 40 CFR 257.104 will be met;

6. Website address for information required to be posted by 40 CFR 257.105, 40 CFR 257.106, and 40 CFR 257.107; and

7. Part III requirements concerning industrial landfills. If more than one standard is listed, the more stringent standard is to be complied with unless the director has granted a variance to a more stringent state specific standard.

B. Existing CCR surface impoundments are required to submit to the director a permit application for a CCR surface impoundment permit that meets the requirements of this chapter before October 17, 2017. New CCR surface impoundments are required to submit to the director a permit application for a surface impoundment that meets the requirements of this chapter prior to the initial receipt of CCR in the CCR unit. An application for a CCR surface impoundment shall include the following:

1. Location restriction demonstrations required by 40 CFR 257.60, 40 CFR 257.61, 40 CFR 257.62, 40 CFR 257.63, and 40 FR 257.64;

2. Description of the CCR surface impoundment's design criteria required by 40 CFR 257.71 (existing CCR surface impoundments), 40 CFR 257.72 (new CCR surface impoundments and lateral expansions), 40 CFR 257.73 (existing CCR surface impoundments), and 40 CFR 257.74 (new CCR surface impoundments and lateral expansions) as applicable;

3. Description of how the CCR surface impoundment's operating criteria required by 40 CFR 257.80, 40 CFR 257.82, and 40 CFR 257.83 are met;

4. Explanation of how groundwater monitoring and corrective action criteria required by 40 CFR 257.90, 40 CFR 257.91, 40 CFR 257.93, 40 CFR 257.94, 40 CFR 257.95, 40 CFR 257.96, 40 CFR 257.97, and 40 CFR 257.98 are met;

5. Explanation of how closure and post-closure care requirements found in 40 CFR 257.101, 40 CFR 257.102, 40 CFR 257.103, and 40 CFR 257.104 will be met; and

6. Website address for information required to be posted by 40 CFR 257.105, 40 CFR 257.106, and 40 CFR 257.107.

C. CCR landfills and new and existing surface impoundments are required to comply with the applicable permitting provisions in Part V (9VAC20-81-400 et seq.) of this chapter, including Virginia public participation requirements.

D. Inactive CCR surface impoundments were not subject to (i) this chapter during their operating life or (ii) a solid waste permit for operation. Inactive CCR surface impoundments are subject to a solid waste permit to address closure and post-closure, as applicable, except where the applicable requirements are included in an existing solid waste permit or a permit issued under State Water Control Law. Such permit shall include conditions to comply with applicable requirements established pursuant to 9VAC20-81-820.

9VAC20-81-820. Inactive CCR surface impoundments.

A. No later than December 17, 2015, the owner or operator of an inactive surface impoundment must prepare and place in the facility's operating record a notification of intent to initiate closure of the CCR surface impoundment.

B. An owner or operator of an inactive CCR surface impoundment shall complete closure of the CCR unit as specified in 40 CFR 257.100 no later than April 17, 2018, or submit a permit application for an existing CCR surface impoundment.

A. Inactive CCR surface impoundments are subject to all the requirements of an existing CCR surface impoundment in accordance with 40 CFR 257.100(a).

B. Inactive CCR surface impoundments are eligible for the alternative timeframes specified in 40 CFR 257.100(e)(2) through (e)(6) if the owner or operator:

1. Prepared and placed in the facility's operating record by December 17, 2015, a notification of intent to initiate closure of the inactive CCR surface impoundment;

2. Provided notification to the director by January 19, 2016, of the intent to initiate closure of the inactive CCR surface impoundment; and

3. Placed on its CCR website by January 19, 2016, the notification of intent to initiate closure of the inactive CCR surface impoundment.

C. Inactive CCR surface impoundments that did not complete the requirements of subdivisions B 1, B 2, and B 3 of this section are not eligible for the alternative timeframes specified in 40 CFR 257.100(e)(2) through (e)(6) and must be in compliance with the deadlines for an existing CCR surface impoundment.