Title of Regulation: 9VAC20-85. Coal Combustion Byproduct Regulations (amending 9VAC20-85-10, 9VAC20-85-20, 9VAC20-85-40, 9VAC20-85-70, 9VAC20-85-90).

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

Effective Date: January 27, 2016.

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

Summary:

On April 17, 2015, the U.S. Environmental Protection Agency published a final rule in the Federal Register titled "Disposal of Coal Combustion Residuals from Electric Utilities." The federal rule became effective on October 19, 2015. Virginia previously adopted regulations concerning the use of coal combustion byproducts (9VAC20-85), which need to be revised to be consistent with the new federal rule. Virginia's rule regulates the use of coal combustion byproducts (CCB) and the federal rule regulates coal combustion residuals (CCR). CCR are a specific type of CCB, and definitions, applicability, and a locational restriction are being revised to be consistent with the federal rule.

Part I
Definitions

9VAC20-85-10. Definitions as established in Solid Waste Management Regulations.

The definitions set out in Part I of the Solid Waste Management Regulations, 9VAC20-81, are incorporated by reference.

9VAC20-85-20. Definitions.

In addition to the definitions incorporated by reference, the following words and terms shall have, for the purpose of this chapter, the following meanings:

"ASTM" means the American Society for Testing and Materials.

"CCB" means coal combustion byproducts.

"Closure" means the act of securing a fossil fuel combustion products site pursuant to the requirements of this chapter.

"Coal combustion byproducts" or "CCB" means residuals, including fly ash, bottom ash, boiler slag, and flue gas emission control waste produced by coal-fired electrical or steam generating units burning coal. CCB includes both CCR and non-CCR wastes identified by this definition.

"Coal combustion residuals" or "CCR" means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers. CCR is a specific type of CCB.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or the Director of the Department of Mines, Minerals and Energy depending on the context.

"Fossil fuel combustion products" means coal combustion byproducts as defined in this regulation, coal combustion byproducts generated at facilities with fluidized bed combustion technology, petroleum coke combustion byproducts, byproducts from the combustion of oil, byproducts from the combustion of natural gas, and byproducts from the combustion of mixtures of coal and "other fuels" (i.e., co-burning of coal with "other fuels" where coal is at least 50% of the total fuel). For purposes of this definition, "other fuels" means waste-derived fuel product, auto shredder fluff, wood wastes, coal mill rejects, peat, tall oil, tire-derived fuel, deionizer resins, and used oil.

"Fossil fuel combustion products site" means all land and structures, other appurtenances, and improvements on them used to manage fossil fuel combustion products by the methods included in either 9VAC20-85-40 A or B.

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface runoff.

"Speculatively accumulated material" means any material that is accumulated before being used, reused, or reclaimed or in anticipation of potential use, reuse, or reclamation. Fossil fuel combustion products are not being accumulated speculatively when they can be used, reused, or reclaimed, have a feasible means of use, reuse, or reclamation available and 75% of the accumulated fossil fuel combustion products are being removed from the storage annually.

"TCLP" means a chemical analytical procedure described in the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Waste derived fuel product" means a solid waste or combination of solid wastes that have been treated (altered physically, chemically, or biologically) to produce a fuel product with a minimum heating value of 5,000 BTU/lb. Solid wastes used to produce a waste derived fuel product must have a heating value, or act as binders, and may not be added to the fuel for the purpose of disposal. Waste ingredients may not be listed or characteristic hazardous wastes. The fuel product must be stable at ambient temperature, and not degraded by exposure to the elements. This material may not be "Refuse Derived Fuel "refuse derived fuel (RDF)" as defined in 9VAC5-40-890.

9VAC20-85-40. Applicability.

A. This chapter applies to all persons who use, reuse, or reclaim fossil fuel combustion products by applying them to or placing them on land in a manner other than addressed in 9VAC20-81-95 of the Solid Waste Management Regulations. 9VAC20-81-95 provides for the beneficial use of waste materials such as fossil fuel combustion products, and provides for conditional exemptions from regulation for fossil fuel combustion products. This chapter also applies to all persons who use, reuse, or reclaim 12,400 tons or less of unencapsulated CCR on the land in nonroadway applications.

B. This chapter establishes minimum standards for the owners or operators of coal mining facilities that accept CCB for mine reclamation or mine refuse disposal on a mine site permitted by the Virginia Department of Mines, Minerals and Energy (DMME) unless otherwise exempt under 9VAC20-81-95 D 18 of the Solid Waste Management Regulations. If the permit issued by the DMME in accordance with the Virginia Coal Surface Mining Reclamation Regulations, 4VAC25-130-700.1 et seq., specifies the applicable conditions set forth in Parts III (9VAC20-85-70 et seq.) and IV (9VAC20-85-150 et seq.) of this chapter, the permittee is exempt from this chapter.

C. Conditions of applicability are as follows:

1. Persons using fossil fuel combustion products other than in a manner prescribed under this chapter, or managing fossil fuel combustion products containing any constituent at a level exceeding levels set forth in Table 1 in Part IV of this chapter, shall manage their waste in accordance with all applicable provisions of the Solid Waste Management Regulations, 9VAC20-81;

2. Materials which are accumulated speculatively, materials which are not utilized in a manner described in the operation plan required by 9VAC20-85-90 of this chapter, and off-specification materials which cannot be utilized or reprocessed to make them usable shall be managed in accordance with all appropriate provisions of the Solid Waste Management Regulations, 9VAC20-81; and

3. Storage, stockpiling, and other processing or handling of fossil fuel combustion products, which may need to occur prior to their final placement or use, reuse, or reclamation, shall be in a manner necessary to protect human health and safety and the environment. For projects permitted by the DMME, the storage, stockpiling, or handling of CCB shall be managed in accordance with the Virginia Coal Surface Mining Reclamation Regulations, 4VAC25-130-700.1 et seq.

4. Use, reuse, or reclamation of greater than 12,400 tons of unencapsulated CCR on the land in nonroadway applications shall be managed in accordance with all applicable provisions of the Solid Waste Management Regulations, 9VAC20-81.

Part III
Management Standards

Article 1
Locational Restrictions

9VAC20-85-70. Locational restrictions.

Fossil fuel combustion products used, reused, or reclaimed on or below ground shall not be placed:

1. In areas subject to base floods unless it can be shown that fossil fuel combustion products can be protected from inundation or washout and that flow of water is not restricted, except for unamended coal combustion byproduct which shall not be placed in areas subject to base floods;

2. With the vertical separation between the fossil fuel combustion products and the maximum seasonal water table less than five feet or bedrock less than two feet;

3. Closer than:

a. 100 feet of any perennial stream,

b. 100 feet of any water well (other than a monitoring well) in existence at the onset of the project,

c. 25 feet of a bedrock outcrop, unless the outcrop is properly treated to minimize infiltration into fractured zones,

d. 100 feet of a sinkhole, or

e. 25 feet from any property boundary or, in the case of projects permitted by the DMME, 25 feet from the permit boundary.

(NOTE: All distances are to be measured in the horizontal plane.)

4. In wetlands, unless applicable federal, state and local permits are obtained; and

5. On the site of an active or inactive dump, unpermitted landfill, lagoon, or similar facility, even if such facility is closed.

Article 3
Operations

9VAC20-85-90. Operations.

The owner or operator of a fossil fuel combustion products site shall prepare an operation plan. At a minimum, the plan shall address the requirements contained in this section.

1. Tracking of mud or fossil fuel combustion products onto public roads from the site shall be controlled at all times to minimize nuisances.

2. The addition of any solid waste including but not limited to hazardous, infectious, construction, debris, demolition, industrial, petroleum-contaminated soil, or municipal solid waste to fossil fuel combustion products is prohibited. This prohibition does not apply to solid wastes from the extraction, beneficiation and processing of ores and minerals conditionally exempted under 9VAC20-81-95 E 3 of the Solid Waste Management Regulations.

3. Fugitive dust shall be controlled at the site so it does not constitute nuisances or hazards.

4. After preparing the subbase, fossil fuel combustion products shall be placed uniformly and compacted to standards, including insitu density, compaction effort and relative density as specified by a registered professional engineer based on the intended use of the fossil fuel combustion products. The placement and compaction of CCB on coal mine sites shall be subject to the applicable requirements of the Coal Surface Mining Reclamation Regulations, 4VAC25-130-700.1 et seq.

5. A surface run on and runoff control program shall be implemented to control and reduce the infiltration of surface water through the fossil fuel combustion products and to control the runoff from the placement area to other areas and to surface waters.

6. Runoff shall not be permitted to drain or discharge into surface waters except when in accordance with 9VAC25-10-10 et seq., of the State Water Control Board, or otherwise approved by the department.

7. Fossil fuel combustion products site development shall be in accordance with the Virginia Erosion and Sediment Control Regulations, 4VAC50-30 9VAC25-840, or the Coal Surface Mining Reclamation Regulations, 4VAC25-130-700.1 et seq., as applicable.