Title of Regulation: 9VAC20-50. Hazardous Waste Facility Siting Criteria (amending 9VAC20-50-40, 9VAC20-50-100).

Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.

Effective Date: August 24, 2016.

Agency Contact: Leslie A. Romanchik, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4129, FAX (804) 698-4234, TTY (804) 698-4021, or email leslie.romanchik@deq.virginia.gov.

Summary:

The amendments make technical corrections to two definitions to make them consistent with state statute, remove a reference to a state hazardous waste transportation permit since hazardous waste transporter permits are no longer required by statute, and make corrections to lists of responsible agencies and their associated contact information that are referenced in the regulation.

Article 2
Definitions

9VAC20-50-40. Words and terms.

Section 10.1-1433 of the Code of Virginia defines several words and terms also used in this chapter. Unless the context clearly indicates otherwise, these words and terms will have the same meaning when used in this chapter. In addition, the following words and terms, when used in this chapter shall have the following meaning, unless the context clearly indicates otherwise.

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Active fault" means a fault which has had displacement in Holocene time.

"Active portion" means that portion of a facility where treatment, storage or disposal operations are being conducted. It includes the treated area of a land farm and the active face of a landfill, but does not include those portions of a facility which have been closed in accordance with all applicable closure requirements of the Virginia Department of Environmental Quality.

"Anion exchange capacity (A.E.C.)" means the exchange capacity for negatively charged ions. (See Cation exchange capacity.)

"Anti-degradation goal for groundwater" means if the concentration of any constituent in groundwater is less than the limit set forth by groundwater standards, the natural quality for the constituent shall be maintained; natural quality shall also be maintained for all constituents, including temperature, not set forth in groundwater standards. If the concentration of any constituent in groundwater exceeds the standards for that constituent, no addition of that constituent to the naturally occurring concentration shall be made.

"Applicant" means the person applying for certification of site suitability or submitting a notice of intent to apply for that.

"Aquifer" means water-bearing geologic formation, group of formations, or part of a formation that is capable of yielding a significant amount of groundwater to wells or springs. An aquifer is unconfined (water table) or confined (artesian) according to whether the upper surface of the water is at atmospheric pressure or at greater than atmospheric pressure.

"Attenuation" means any decrease in the maximum concentration or total quantity of a chemical or biological constituent during a fixed time or distance traveled.

"Board" means the Virginia Waste Management Board.

"Buffering capacity" means the capacity of a soil to take up contaminants through a variety of attenuation processes such as biological activity, dilution, volatilization, mechanical filtration, precipitation, buffering, neutralization and ion exchange. Some attenuation processes result in permanent removal and degradation of pollutants, which others act to store pollutants and by that delay pollution problems but do not eliminate them.

"Cation exchange capacity (C.E.C.)" means the excess of counter ions in the zone adjacent to the charged surface or layer which can be exchanged for other cations. The C.E.C. cation exchange capacity of geological materials is normally expressed as the number of milliequivalents of cations that can be exchanged in a sample with a dry mass of 100 grams.

"Closure" means the act of securing a hazardous waste management facility pursuant to the requirements of Virginia Hazardous Waste Management Regulations (9VAC20-60) promulgated by the board.

"Community water system" means a waterworks which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

"Construction" means (i) with respect to new facilities, the significant alteration of a site to install permanent equipment or structures or the installation of permanent equipment and structures; (ii) with respect to existing facilities, the alteration or expansion of existing structures or facilities to initially accommodate hazardous waste, any expansion of more than 50% of the area or capacity of an existing hazardous waste facility, or any change in design or process of a hazardous waste facility that will, in the opinion of the board, result in a substantially different type of facility. It does not include preliminary engineering or site surveys, environmental studies, site acquisition, acquisition of an option to purchase or activities normally incident hereto.

"Container" means any portable enclosure in which a material is stored, transported, treated, disposed of, or otherwise handled.

"Dam-related flood hazard areas" means areas identified as being dam-related flood hazard areas which fall into one of two categories: areas of dynamic flooding below the dam, or the inundation zone, and areas of static flooding above the dam, or the flood pool. The inundation zone is the area that would be inundated by the water released by the impoundment in the event of a dam flood. The flood pool is defined as the land area above the dam which is prone to flooding during abnormally high runoff or precipitation.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

"Disposal facility" means a facility or part of a facility at which hazardous waste is intentionally placed into or on any land or water, and at which the waste will remain after closure.

"Endangered or threatened species habitat" means areas known to be inhabited on a seasonal or permanent basis by or to be critical at any stage in the life cycle of any wildlife (fauna) or vegetation (flora) identified as "endangered" or "threatened" species on official federal or state lists of endangered or threatened species, including the Endangered Species Act, 16 USC § 1531 et seq., the Virginia Endangered Species Act, § 29.1-563 et seq. of the Code of Virginia, and the Virginia Endangered Plant and Insect Species Act, § 3.1-1020 3.2-1000 et seq. of the Code of Virginia, or under active consideration for state or federal listing. The definition also includes a sufficient buffer area to ensure continued survival of the species.

"Floodplain" means an area adjoining a river, stream or water course which has been or hereafter is likely to be covered by floodwaters.

Included in this category are coastal flood hazards which are defined as land areas adjacent to open coast, coastal sounds and their upstream estuaries which are prone to flooding from hurricanes and storm surges with an annual probability of 1.0%.

Also included in this definition are riverine flood hazard areas defined as the valley areas adjacent to any size waterway which can be covered by flood waters resulting from excessive rainfall or other factors. The riverine flood hazard areas also fall under the Federal Emergency Management Administration definition of a "Regulatory Floodway" under the National Flood Program. A regulatory floodway includes the channel of the river and the adjacent floodplain that must be reserved in order to discharge the base flood (the flood level anticipated in the 100-year flood plain). The regulatory floodway cannot cause a cumulative increase in the water surge elevation of the base flood of greater than one foot at any point.

"Groundwater" means any water, except capillary moisture beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir or other body of surface water within the boundaries of this state, whatever may be the subsurface geologic structure in which such water stands, flows, percolates or otherwise occurs.

"Groundwater quality" means the quality of groundwater as measured against drinking water criteria and standards established by the U.S. EPA and the State Department of Health and adopted by the Virginia State Water Control Board.

"Hazardous waste" means a solid waste classified as a hazardous waste by the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Hazardous waste facility" means any facility, including land and structures, appurtenances, improvements and equipment for treatment, storage, or disposal of hazardous wastes, which accepts hazardous waste for storage, treatment or disposal. This definition does not include: (i) facilities which are owned and operated by and exclusively for the on-site treatment, storage or disposal of wastes generated by the owner or operator; (ii) facilities for the treatment, storage or disposal of hazardous wastes used principally as fuels in an on-site production process; and (iii) facilities used exclusively for the pretreatment of wastes discharged directly to a publicly owned sewage treatment works and storage/treatment facilities.

"Hundred-year flood" means a flood of that level which on the average will have a 1.0% chance of being equaled or exceeded in any given year at designated locations.

"Hydraulic conductivity" means the rate of flow of water in gallons per day through a cross section of one square foot under a unit hydraulic gradient, at the prevailing temperature (Permeability coefficient).

"Hydraulic gradient" means the change in hydraulic pressure per unit of distance in a given direction.

"Incinerator" means an enclosed device using controlled flame combustion, the primary purpose of which is to thermally break down hazardous waste.

"Injection well" means a well or bore hole into which fluids are injected into selected geologic horizons. (See also underground injection.)

"Inundation zone (below a dam)" means the area that would be inundated in the event of a dam failure.

"Karst topography" means a type of topography that may form over limestone, dolomite, or gypsum formations by dissolving or solution, and that is characterized by closed depressions or sinkholes, caves, and underground drainage.

"Land treatment facility" means a facility or part of a facility at which hazardous waste is applied onto or incorporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure.

"Landfill" means a disposal facility or part of a facility where waste is placed in or on land and which is not a treatment facility, a surface impoundment or an injection well.

"Leachate" means a liquid, including any suspended components in the liquid, that has percolated through or drained from hazardous waste.

"Monitoring" means all procedures used to systematically inspect and collect data on operational parameters of the facility or on the quality of the air, groundwater, surface water or soils.

"Monitoring well" means a well used to obtain water samples for water quality analysis or to measure depth to groundwater table.

"Noncommunity water system" means a waterworks that is not a community waterworks, but operates at least 60 days of the year and is for transient use such as restaurants, campgrounds, or rest areas.

"Pile" means any noncontainerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage.

"Point source" means any discernible, confined and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

"Private water system" means all systems not defined under community/noncommunity water systems.

"Proximity to an active fault" means located such that potential vibration of a known active fault as defined under "seismic risk zones" or "seismogenic volume" in this chapter may adversely affect the physical integrity of the facility, or such that ground and surface waters associated with such fault may be degraded.

"Proximity to a community/noncommunity water system and supply of groundwater" means a site which is located such that the geologic features or characteristics of the site may lead to degradation of the aquifer as a result of operations or in the event of an accident or spill.

"Proximity to a community/noncommunity water system and supply of surface water" means within 1/2 mile of either side of a stream or impoundment for a distance of five stream miles upstream including tributaries, and 1/10 of a mile downstream of any nontidal surface water intake for a public water supply. On tidal affected streams, the site shall be such greater distance than 1/10 of a mile downstream that the tidal action would not cause intake of waters that may be affected by run-off, etc., from the site location. More restrictive requirements of other state regulatory agencies shall apply.

"Proximity to a private water system and supply of surface or groundwater" means a site which is located such that the geologic features or characteristics of the site may lead to degradation of the aquifer as a result of operations or in the event of an accident or spill.

"Proximity to publicly designated areas" means a site which is located such that the construction and operation of the proposed facility may impair the environmental and aesthetic qualities of the area.

"Publicly designated areas" means publicly owned lands designated as seashore areas, wilderness or scenic areas, scenic rivers, wildlife or bird sanctuaries, game lands, state parks and recreation areas and other natural areas. Also included are lands on or proposed for inclusion on the National Register of Historic Places, National Natural Landmarks, Virginia Landmarks Register and scenic easements held by the Virginia Outdoors Foundation. These lands must have been designated or be pursuant to an ongoing program as of the date of the notice of intent.

"Recharge" means natural or artificial replenishment or storage of nondegrading (quality) water in an aquifer.

"Run-off" means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

"Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

"Saprolite" means a soft, earthy, clay-rich, thoroughly decomposed rock formed in place by chemical weathering of igneous and metamorphic rocks.

"Saturated zone (zone of saturation)" means that part of the earth's crust in which all voids are filled with water under pressure greater than that of the atmosphere.

"Scenic rivers" means rivers designated by the Virginia General Assembly under the Scenic Rivers Act (§ 10.1-400 et seq. of the Code of Virginia) as worthy of preservation based on their unique environmental and aesthetic characteristics.

"Seismic risk zones" means an area where an active fault which has had displacement in Holocene time is present or which has had historical earthquake activity in Modified Mercalli VII or Richter Scale 4, or greater.

"Seismogenic volume" means a seismic risk zone of upper crustal rocks where earthquakes are occurring now or in the historic past, or both and that extends from the surface of the earth down to depths of 15-20 kilometers. Such volumes are susceptible to strong seismic shaking (Modified Mercalli Intensity VII or Richter Magnitude 5 or greater) as well as faulting and movement of subsurface rock layers.

"Site" means the land or water area upon which a facility or activity is physically located or conducted including but not limited to adjacent land used for utility systems such as repair, storage, whipping or processing areas, or other areas incident to the hazardous waste facility or activity.

"Soil pH" means the negative log of the hydrogen ion concentration, which commonly ranges from a high (acid) of 0 to a low (alkaline) of 14, neutral being seven.

"Soil/saprolite layer" means the unconsolidated materials derived primarily from the in-place weathering of underlying geologic deposits. Saprolite is specifically the unconsolidated weathering product of crystalline bedrock which retains relic bedrock structure. Thickness of the soil/saprolite layer is the depth from the surface to bedrock.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the state or within its jurisdiction. For the purpose of this chapter, adjacent wetlands are included in this definition.

"Static water level" means the level at which water stands in a well when no water is being taken from the aquifer either by pumping or by free flow.

"Storage" means the containment or holding of hazardous waste pending treatment, recycling, reuse, recovery or disposal.

"Storage facility" means any hazardous waste facility which stores hazardous waste.

"Subsidence" means the lowering of the natural land surface in response to: earth movements; lowering of fluid pressure; removal of underlying supporting material by mining or solution of solids, either artificially or from material causes; compaction due to wetting (hydrocompaction) or from material causes; oxidation of organic matter in soils; or added load on the land surface.

"Subsurface mining areas" means areas where deep mining or removal by drilling of minerals or mineral fuels or pumping of groundwater has resulted in a potential for land subsidence.

"Surface impoundment" means a facility or part of a facility which is a natural topographic depression, manmade excavation, or diked area formed primarily of earthen materials (although it may be lined with manmade materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an interjection well or a seepage facility.

"Thermal treatment" means treatment of hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical or biological character or composition of the hazardous waste.

"Transfer facility" means any transportation related to facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of transportation.

"Treatment" means any method, technique, or process, including incineration or neutralization, designed to change chemical, the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste; so as it or to render such waste nonhazardous or it less hazardous, or safe or nonhazardous, safer for transport or disposal, amenable for recovery, amenable for or storage, or reduced in volume.

"Underground injection" means the subsurface emplacement of fluids through a bored, drilled, jetted, driven, or dug well, where the depth of the well is greater than the largest surface dimension (See also injection well).

"Unsaturated zone (zone of aeration)" means the zone between the topographic surface and water table.

"Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer.

"Water table" means the upper surface of the zone of saturation in groundwaters in which the hydrostatic pressure is equal to atmospheric pressure. (See uppermost aquifer.)

"Water well" means an excavation with associated casing, which is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed when the intended use of such excavation is for the location, testing, acquisition, artificial recharge, or storage of groundwater, the depth of which is greater than the diameter or width.

"Waterworks" means a system that serves piped water for drinking or domestic use of (i) the public, (ii) at least 15 connections, or (iii) an average of 25 individuals for at least 60 days of the year. The term waterworks shall include all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water except the piping and fixtures inside the building where such water is delivered.

"Well" means any shaft or pit dug, drilled, jetted, driven, or bored into the earth, generally of a cylindrical form, and often cased with bricks or tubing to prevent the earth from caving in, whose depth is greater than the largest surface dimension.

"Well yield" means average water yield in gallons per minute obtained from wells trapping the uppermost aquifer below a specific site or site vicinity.

"Wetlands" means areas inundated by surface or groundwater with a frequency sufficient to support, under normal circumstances, a prevalence of vegetated or aquatic life requiring saturated or seasonally saturated soil conditions for growth or reproduction.

Part IV
Related Permits and Reviews

9VAC20-50-100. Additional agency approval.

A. To avoid duplication to the maximum extent feasible with existing agencies and their areas of responsibility, related agency approvals are listed below in subsection B of this section as notification to the applicant that these permits and reviews may apply in accordance with the type of facility proposed.

A. B. Permits.

1. Hazardous waste facility management.

a. Regulatory agency:

Virginia Waste Management Board.

b. State permit required:

Facility management or transportation.

c. Statutory authority:

(1) Chapter 11.1 (§ 10.1-1182 et seq.) of Title 10.1 of the Code of Virginia and the Virginia Waste Management Act, Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

(2) Virginia Hazardous Waste Management Regulations, 9VAC20-60.

d. Contact:

Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000

2. Air emissions.

a. Regulatory agency:

State Air Pollution Control Board.

b. State permit required:

Stationary sources

Hazardous pollutants

Open burning

c. Statutory authority, rules and regulations:

(1) Virginia Air Pollution Control Law.

(2) Federal Clean Air Act (42 USC § 7401 et seq.) and amendments.

(3) Hazardous Air Pollutant Sources, 9VAC5-60 and Permits for Stationary Sources, 9VAC5-80.

d. Contact:

Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000

3. Discharges into state waters.

a. Regulatory agency:

State Water Control Board.

b. State discharge permit required:

(1) Virginia Pollutant Discharge Elimination System (NPDES).

(2) No discharge certificate.

c. Statutory authority, rules and regulations:

(1) Federal Water Pollution Control Act Amendments of 1972 (33 USC § 1251 et seq.).

(2) State Water Control Law, (§ 62.1-44.2 et seq. of the Code of Virginia).

d. Contact:

Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000

4. Land disturbance.

a. Regulatory agency:

Virginia Soil and Water Conservation State Water Control Board or local government, or both.

b. State requirement:

Erosion and sediment control plan.

c. Statutory authority, rules and regulations:

(1) Erosion and sediment control law (§§ 10.1-560 62.1-44.15:51 et seq. of the Code of Virginia).

(2) Virginia Erosion and Sediment Control Handbook.

d. Contact:

Department of Conservation and Recreation Environmental Quality
203 Governor Street, Suite 213 P.O. Box 1105
Richmond, VA 23219-2094 23218
(804) 786-1712 698-4000

5. Wetlands, subaqueous lands, and dunes.

a. Regulatory agencies:

Virginia Marine Resources Commission (VMRC) (Clearinghouse for permits)

Local wetlands boards

Virginia Department of Environmental Quality (VDEQ)

U.S. Army Corps of Engineers (USACE)

b. Permit required:

VMRC and local wetland boards: Use or development of any wetland within Tidewater, Virginia

VMRC: Coastal Dunes

VMRC, VDEQ and USACE: Tidal Wetlands and Subaqueous Land

VDEQ and USACE: Nontidal Wetlands

VDEQ: Isolated Wetlands

USACE: Activities in the navigable waters of the United States, degradation of the quality of water, and transportation and dumping of dredged material.

c. Statutory authority, rules and regulations:

(1) Virginia Wetlands Act (§ 28.2-1300 et seq. of the Code of Virginia.).

(2) Virginia Water Control Law (§§ 62.1-44.15 and 62.1-44.15:5 Waters of the State, Ports and Harbors (Title 62.1 of the Code of Virginia.).

(3) Local wetland zoning ordinances.

(4) Federal Water Pollution Control Act (Clean Water Act, 33 USC § 1251 et seq.) §§ 401 and 404.

(5) Rivers and Harbors Act of 1894 (33 USC § 1371).

(6) Marine Protection Research and Sanctuary Act (16 USC §§ 1431-1434; 33 USC §§ 1401, 1402, 1411-1421, 1441-1444).

d. Contact:

(1) Assistant Commissioner for Habitat Management
Marine Resources Commission
2600 Washington Avenue, 3rd Floor
Newport News, VA 23607
(757) 247-2200

(2) Department of Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000

(3) District Engineers
U.S. Army Corps of Engineers
Norfolk District
803 Front Street
Norfolk, VA 23510 23508

B. C. Reviews. Applications for permits may result in a review and comment process by state agencies. Such reviews may include comments concerning historic landmarks, archaeological sites, caves, best management practices, fisheries, and parks and recreation. Further information on review procedures can be obtained by contacting, Department of Environmental Quality, P.O. Box 1105, Richmond, VA, 23218; or (804) 698-4000.