Rule2026-21622
Virginia: Approval of State Coal Combustion Residuals Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 22, 2026
Effective
November 23, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or the Agency) is approving Virginia's coal combustion residuals (CCR) permit program under the Resource Conservation and Recovery Act (RCRA). After reviewing the CCR permit program application submitted by the Virginia Department of Environmental Quality (VADEQ), EPA has determined that Virginia's partial CCR permit program meets the standard for approval under RCRA. Virginia's CCR permit program will operate in lieu of the Federal CCR program with the exception of the specific provisions noted below.
Full Text
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<title>Federal Register, Volume 91 Issue 203 (Thursday, October 22, 2026)</title>
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[Federal Register Volume 91, Number 203 (Thursday, October 22, 2026)]
[Rules and Regulations]
[Pages 66643-66651]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21622]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 257
[EPA-HQ-OLEM-2025-3325; FRL-12983-02-OLEM]
Virginia: Approval of State Coal Combustion Residuals Permit
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Availability of final decision.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
approving Virginia's coal combustion residuals (CCR) permit program
under the Resource Conservation and Recovery Act (RCRA). After
reviewing the CCR permit program application submitted by the Virginia
Department of Environmental Quality (VADEQ), EPA has determined that
Virginia's partial CCR permit program meets the standard for approval
under RCRA. Virginia's CCR permit program will operate in lieu of the
Federal CCR program with the exception of the specific provisions noted
below.
DATES: This action is effective on November 23, 2026.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2025-3325. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hard copy
form.
FOR FURTHER INFORMATION CONTACT: Michelle Lloyd, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division, U.S. Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; telephone number: (202) 566-0560;
email address: <a href="/cdn-cgi/l/email-protection#b2dededdcbd69cdfdbd1dad7deded7f2d7c2d39cd5ddc4"><span class="__cf_email__" data-cfemail="1b777774627f35767278737e77777e5b7e6b7a357c746d">[email protected]</span></a>. For more information on this
document please visit <a href="https://www.epa.gov/coal-combustion-residuals">https://www.epa.gov/coal-combustion-residuals</a>.
SUPPLEMENTARY INFORMATION:
List of Acronyms
DCR Virginia Department of Conservation and Recreation
CCR coal combustion residuals
CFR Code of Federal Regulations
EPA Environmental Protection Agency
MSWLF municipal solid waste landfill
NOI Notice of Intent
OLEM Office of Land and Emergency Management
PEEP Permitting Enhancement and Evaluation Platform
RCRA Resource Conservation and Recovery Act
SHWD Solid and Hazardous Waste Division
STAG State and Tribal Assistance Grant
VAC Virginia Administrative Code
VADEQ Virginia Department of Environmental Quality
VPDES Virginia Pollutant Discharge Elimination System
VSWMR Virginia Solid Waste Management Regulations
VWMA Virginia Waste Management Act
WIIN Water Infrastructure Improvements for the Nation
I. General Information
A. Summary of Final Action
EPA is taking final action to approve of Virginia's partial CCR
permit program because the Agency finds that the State's program
requires each CCR unit in the State to achieve compliance with the
minimum requirements in the Federal CCR regulations or with alternative
requirements that EPA has determined to be at least as protective as
the requirements of the Federal CCR regulations in 40 CFR part 257,
subpart D, for the reasons set forth in the Proposed Approval (91 FR
23924, May 4, 2026) and this final action. See, 42 U.S.C.
6945(d)(1)(B).
B. Background
CCR are generated from the combustion of coal, including solid
fuels classified as anthracite, bituminous coal, subbituminous coal,
and lignite, for the purpose of generating steam to power a generator
to produce electricity or electricity and other thermal energy by
electric utilities and independent power producers. CCR, commonly known
as coal ash, include fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials. CCR can be sent offsite for disposal or
beneficial use or disposed of in on-site landfills or surface
impoundments.
On April 17, 2015, EPA published a final rule creating 40 CFR part
257, subpart D, which established a comprehensive set of minimum
Federal requirements for the disposal of CCR in landfills and surface
impoundments (80 FR 21302). The rule created a self-implementing
program that regulates the location, design, operating criteria, and
groundwater monitoring and corrective action for CCR units, as well as
the closure and post-closure care of CCR units. It also requires
recordkeeping and notifications for CCR units. EPA has since amended 40
CFR part 257, subpart D on August 5, 2016 (81 FR 51802), July 30, 2018
(83 FR 36435), August 28, 2020 (85 FR 53516), November 12, 2020 (85 FR
72506), May 8, 2024 (89 FR 38950), November 8, 2024 (89 FR 88650), and
February 10, 2026 (91 FR 5806). More information on these rules is
provided in the Technical Support Document in the docket for this
document.\1\
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\1\ Technical Support Document for the Approval of Virginia's
Coal Combustion Residuals Permit Program. U.S. Environmental
Protection Agency, Office of Land and Emergency Management (5304T),
1200 Pennsylvania Avenue NW, Washington, DC 20460. April 2026. EPA-
HQ-OLEM-2025-3325-0026.
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[[Page 66644]]
C. Statutory Authority
EPA is issuing this final action pursuant to RCRA sections 4005(d)
and 7004(b)(1). See 42 U.S.C. 6945(d) and 6974(b)(1). As amended by
section 2301 of the 2016 WIIN Act, RCRA section 4005(d) instructs EPA
to establish a Federal permit program similar to those under RCRA
subtitle C and other environmental statutes and authorizes States to
develop their own CCR permitting programs that go into effect in lieu
of the Federal permit program upon approval by EPA. See 42 U.S.C.
6945(d).
Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States
seeking approval of a State CCR program must submit to the
Administrator ``in such form as the Administrator may establish,
evidence of a permit program or other system of prior approval and
conditions under state law for regulation by the State of coal
combustion residuals units that are located in the state.'' The statute
provides that EPA shall approve a State CCR permit program if the
Administrator determines that the State program will require each CCR
unit located in the State to achieve compliance with either: (1) The
Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other
State criteria that the Administrator, after consultation with the
State, determines to be ``at least as protective as'' the Federal
requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a
final determination, after providing for public notice and an
opportunity for public comment, within 180 days of receiving a State's
complete submittal of the information specified in RCRA section
4005(d)(1)(A).\2\ 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR
permit program in whole or in part. Id. Once approved, the State permit
program operates in lieu of the Federal requirements. 42 U.S.C.
6945(d)(1)(A). In a State with a partial program, only the State
requirements that have been approved by EPA operate in lieu of the
Federal requirements, and facilities remain responsible for compliance
with all remaining Federal requirements in 40 CFR part 257.
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\2\ USEPA 2017. Coal Combustion Residuals State Permit Program
Guidance Document; Interim Final. Office of Land and Emergency
Management, Washington, DC 20460. August. (providing that the 180-
day deadline does not start until EPA determines the application is
complete).
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As noted above, the Federal CCR regulations are self-implementing,
meaning that CCR landfills and surface impoundments must comply with
the terms of the regulations prior to obtaining a Federal permit or a
permit issued by an approved State. Noncompliance with the Federal CCR
regulations can be the subject of an enforcement action brought
directly against the facility. Once a final CCR permit is issued by an
approved State or pursuant to a Federal CCR permit program, however,
the terms of the permit apply in lieu of the terms of the Federal CCR
regulations and/or requirements in an approved State program, and RCRA
section 4005(d)(3) provides a permit shield against direct enforcement
of the applicable Federal or State CCR regulations (meaning the
permit's terms become the enforceable requirements for the permittee).
RCRA section 7004(b), which applies to all RCRA programs, directs
that ``public participation in the development, revision,
implementation, and enforcement of any . . . program under this chapter
shall be provided for, encouraged, and assisted by the Administrator
and the States.'' 42 U.S.C. 6974(b)(1). Accordingly, EPA considers
permitting requirements, requirements for compliance monitoring
authority, requirements for enforcement authority, and requirements for
intervention in civil enforcement proceedings in evaluating State CCR
permit program applications.
Once a State CCR permit program is approved, the Administrator must
review the approved program no less frequently than every 12 years, no
later than three years after a revision to an applicable section of 40
CFR part 257, subpart D, and no later than one year after any
unauthorized significant release from a CCR unit located in the State.
EPA also must review an approved State CCR permit program at the
request of another State alleging that the soil, groundwater, or
surface water of the requesting State is or is likely to be adversely
affected by a release from a CCR unit in the approved State. See 42
U.S.C. 6945(d)(1)(D)(i)(I) through (IV).
In a State with an approved State CCR permit program, EPA may
commence administrative or judicial enforcement actions under RCRA
section 3008, 42 U.S.C. 6928, if the State requests assistance or if
EPA determines that an EPA enforcement action is likely to be necessary
to ensure that a CCR unit is operating in accordance with the criteria
of the State's permit program. 42 U.S.C. 6945(d)(4). EPA can enforce
any Federal requirements that remain in effect (i.e., those for which
there is no corresponding approved State provision). EPA may also
exercise its inspection and information gathering authorities under
RCRA section 3007 in a State with an approved program. 42 U.S.C. 6927.
II. The Virginia Application
EPA began working with VADEQ in 2019 as Virginia developed its
application for a partial CCR permit program. EPA discussed with VADEQ
the process for EPA to review and approve a State's CCR permit program,
VADEQ's anticipated timeline for submitting a CCR permit program
application to EPA, and VADEQ's regulations for issuing permits. In
2016, 2017, and 2025, the Commonwealth incorporated by reference 40 CFR
part 257, subpart D promulgated through December 14, 2020. See Virginia
Register Volume 32, Issue 9, eff. January 27, 2016; amended, Virginia
Register Volume 33, Issue 16, eff. May 3, 2017; Volume 41, Issue 9,
eff. January 15, 2025.
On June 6, 2025, VADEQ submitted its CCR permit program application
to EPA Region 3 requesting approval of Virginia's partial CCR permit
program. On September 25, 2025, EPA sent questions to VADEQ and a
request to supplement the application. On March 4, 2026, VADEQ
submitted an updated application to EPA Region 3.\3\ On May 4, 2026,
EPA proposed to approve the Virginia CCR permit program (91 FR 23924).
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\3\ The revised Narrative Description, dated March 2026, shall
be substituted for the original Narrative Description, dated June
2025, as well as the 40 CFR part 257 Checklist, the Commonwealth of
Virginia Attorney General certification, and copies of the Virginia
Statutes, Regulations, and Guidance. All other documents submitted
as part of the original June 6, 2025 application remain unchanged
and are available in the docket for this action.
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III. EPA Analysis of the Virginia Application--Basis for Approval
RCRA section 4005(d) requires EPA to evaluate two components of a
State CCR permitting program to determine whether it meets the standard
for approval: the program itself, and the technical criteria that will
be included in each permit issued under the State program. This section
discusses EPA's review of both requirements under RCRA section 4005(d)
and the criteria EPA uses to conduct this review.
First, EPA must evaluate the permit program itself (or other system
of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A) through
(B). RCRA section 4005(d)(1)(A) directs the State to provide evidence
of a State permit program's compliance with RCRA requirements in such
form as determined by the Administrator. In turn, RCRA section
4005(d)(1)(B) directs EPA to approve the State program based
[[Page 66645]]
upon a determination that the program ``requires each coal combustion
residuals unit located in the state to achieve compliance with the
applicable [Federal or State] criteria.'' In other words, the statute
directs EPA to determine that the State has sufficient authority to
require compliance at all CCR units located within the State. See also
42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination, EPA
evaluates the State's authority to issue permits and impose conditions
in those permits, as well as the State's authority to conduct
compliance monitoring and enforcement.
During this review of the State permit program, EPA also determines
whether the program contains procedures consistent with the public
participation directive in RCRA section 7004(b). RCRA section 7004(b),
which applies to all RCRA programs, directs that ``public participation
in the development, revision, implementation, and enforcement of any .
. . program under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States.'' 42 U.S.C. 6974(b)(1).
To make this determination, EPA evaluates the State's public
participation procedures for issuing permits and for intervention in
civil enforcement proceedings.
Although 40 CFR part 239 applies to the approval of State Municipal
Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1)
rather than EPA's evaluation of CCR permit programs under RCRA section
4005(d), the specific criteria outlined in that regulation provide a
helpful framework to examine the relevant aspects of a State's CCR
permit program. States are familiar with these criteria because all
States have MSWLF programs that have been approved pursuant to these
regulations, and the regulations are generally regarded as protective
and appropriate.
Consequently, EPA relied on the four categories of criteria
outlined in 40 CFR part 239 as guidelines to evaluate the Virginia CCR
permit program: permitting requirements, requirements for compliance
monitoring authority, requirements for enforcement authority, and
requirements for intervention in civil enforcement proceedings.
Second, EPA must evaluate the technical criteria that will be
included in each permit issued under the State CCR permit program to
determine whether they are the same as the Federal criteria, or to the
extent they differ, whether the modified criteria are ``at least as
protective as'' the Federal requirements. See 42 U.S.C. 6945(d)(1)(B).
Only if both components meet the statutory requirements may EPA approve
the program. See 42 U.S.C. 6945(d)(1). EPA makes this determination by
comparing the State's technical criteria to the corresponding Federal
criteria and, where necessary, evaluating whether different State
criteria are at least as protective as the Federal criteria.
Upon careful review, and as discussed in more detail below, EPA
concludes that Virginia's partial CCR permit program includes all the
necessary elements to be approved as a partial State CCR permit
program. It also contains all the technical criteria in 40 CFR part
257, subpart D, except for the provisions specifically discussed below
that Virginia has not included in its partial CCR permit program.
Consequently, EPA is approving the majority of Virginia's partial CCR
permit program application. The State's CCR permit program does not
encompass the full scope of Federal CCR requirements as presently
constituted, and the provisions of the Federal CCR regulations that are
not part of Virginia's approved CCR permit program will remain directly
applicable to affected CCR units. 42 U.S.C. 6945(d)(1)(B).
EPA's full analysis of the Virginia CCR permit program, and how the
Virginia regulations differ from the Federal requirements, can be found
in the Technical Support Document. EPA determined that the Virginia CCR
permit program application was complete and notified Virginia of its
determination by letter.\4\
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\4\ Letter to Michael S. Rolband, Director, Virginia Department
of Environmental Quality from Lee M. Zeldin, Administrator, USEPA
regarding a review of the Virginia Coal Combustion Residuals Permit
Program Application. April 30, 2026. EPA-HQ-OLEM-2025-3325-0048.
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A. Adequacy of the Virginia Permit Program
Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a
State seeking State CCR permit program approval to submit to EPA, ``in
such form as the Administrator may establish, evidence of a permit
program or other system of prior approval and conditions under State
law for regulation by the State of coal combustion residuals units that
are located in the State.'' Although the statute directs EPA to
establish the form of such evidence, the statute does not require EPA
to promulgate regulations governing the process or standard for
determining the adequacy of such State programs. EPA, therefore,
developed the Coal Combustion Residuals State Permit Program Guidance
Document; Interim Final (82 FR 38685, August 15, 2017) (the ``Guidance
Document''). The Guidance Document provides recommendations on a
process and standards that States may choose to use to apply for EPA
approval of its CCR permit programs, based on the standards in RCRA
section 4005(d), existing regulations at 40 CFR part 239, and the
Agency's experience in reviewing and approving State programs.
EPA evaluated the Virginia CCR permit program using the process and
statutory and regulatory standards discussed in sections II.C. and
IV.A. of this preamble. EPA's findings are summarized below and
provided in more detail in the Technical Support Document located in
the docket supporting this proposed determination.
1. Guidelines for Permitting
In EPA's judgment, an adequate State CCR permit program must ensure
that: (1) Existing and new facilities are permitted or otherwise
approved and in compliance with either 40 CFR part 257 or other State
criteria; (2) The State has the authority to collect all information
necessary to issue permits that are adequate to ensure compliance with
relevant 40 CFR part 257, subpart D requirements; and (3) The State has
the authority to impose requirements for CCR units adequate to ensure
compliance with either 40 CFR part 257, subpart D, or such other State
criteria that have been determined and approved by the Administrator to
be at least as protective as 40 CFR part 257, subpart D.
The permitting process in Virginia is undertaken by VADEQ's Land
Protection and Revitalization Division, including staff from each of
VADEQ's six regional offices. Coordinators within the Central Office
Land Protection and Revitalization Division Office of Financial
Responsibility and Waste Programs assist the regional office staff with
consistency in permitting and compliance efforts. For a more detailed
description of staff resources, see section IV of the Narrative
Statement.
a. Permit Required
Section 10.1-1408.1 A of the Virginia Waste Management Act (VWMA)
and 9VAC20-81-40 of the Virginia Solid Waste Management Regulations
(VSWMR) both require that no person shall operate any sanitary landfill
or other facility for the disposal, treatment, or storage of solid
waste without a permit from the Director of VADEQ. Applications for
solid waste permits include three parts: the Notice of Intent (NOI),
Part A application, and Part B application. Under 9VAC20-81-170.C of
the VSWMR, permitted facilities
[[Page 66646]]
remain subject to a permit through and until completion of post-closure
care requirements.
b. Permitting Authority
VADEQ, under the Land Protection and Revitalization Division, is
the lead agency for the permitting and oversight for the CCR permit
program. VADEQ, under the Water Permitting Division, is also
responsible for issuing Virginia Pollutant Discharge Elimination System
(VPDES) permits that include calculated permit limits to ensure that
discharges comply with water quality standards. As noted in section IV
of VADEQ's CCR Permit Program Narrative Description, Virginia's
Department of Conservation and Recreation (DCR) Dam Safety Program is
responsible for oversight of impounding structures associated with
surface impoundments.
c. Permit Requirements and Permitting Process
Virginia adopted 40 CFR part 257, subpart D by reference (9VAC20-
81-800) and established permitting procedures for CCR landfills and CCR
surface impoundments (9VAC20-81-450). Applications for solid waste
permits include three parts: the NOI, Part A application, and Part B
application. The NOI initiates the permit application and consists of
documents centered on local government approvals. The Part A
application, often submitted with the NOI, includes an assessment of
site suitability of the proposed facility, as well as a permit
application letter which defines the physical boundaries (waste
management boundary, maximum and minimum design elevations, and total
disposal capacity) acceptable for waste management activities
determined after taking into consideration all siting requirements. The
Part B application includes the proposed design, operation, monitoring,
closure, and postclosure care plans for the proposed facility. The
resulting permit sets limits on site design, wastes accepted,
recordkeeping and reporting, financial assurance, and incorporates any
necessary schedules of compliance. The permit issuance grants approval
to build the disposal facility; however, a Certificate to Operate is
required to begin accepting waste. See 9VAC20-81-490. The permit is
issued for the life of the facility (through termination of postclosure
care) and must be modified over time to remain current and/or to adjust
for modifications to design, operation, monitoring, closure, and
postclosure care.
EPA determined that the Virginia approach to CCR permit
applications and approvals is adequate, and that this aspect of the
Virginia CCR permit program meets the standard for program approval.
2. Guidelines for Public Participation
Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment
that an adequate State CCR permit program will ensure that: (1)
Documents for permit determinations are made available for public
review and comment; (2) Final determinations on permit applications are
made known to the public; and (3) Public comments on permit
determinations are considered and significant comments are responded to
in the permit record. EPA's review of Virginia's CCR permit program
indicates that the State has adopted public participation procedures
that allow interested parties to talk openly and frankly about permit
issues and search for mutually agreeable solutions to differences in
views. An overview of Virginia's public participation provisions is
provided below.
a. Public Notice and Participation in the CCR Permit Application
Process
Applications for new CCR permits are treated as a new solid waste
permit, in accordance with 9VAC20-81-450 E. If the application is found
to be technically adequate and in full compliance with the VSWMR, a
draft permit is developed. The draft permit is available for public
review at the local VADEQ regional office, and it is VADEQ practice to
place a digital or hard copy of the application in a local library.
Announcement of the availability of the draft permit, public comment
period, and date, time, and location of a public hearing are made in a
public notice published in a local newspaper and posted on VADEQ's
website and the Virginia Regulatory Town Hall website. The regulation
requires a public comment period of no less than 45 days due to the
public hearing being scheduled at least 30 days following the public
notice and the public comment period extending at least 15 days after
the public hearing.
Following the close of the public comment period, VADEQ reviews all
comments (verbal and written); makes a decision to issue a permit, to
deny a permit, or to modify the draft permit (9VAC20-81-450 E 7); and
prepares a response to comments. The response to comments document is
sent to the applicant and all persons who provided comments during the
comment period. In accordance with 9VAC20-81-450 E 8, the response to
comments document is sent out when the final permit decision is issued.
For new permits covering existing and inactive CCR surface
impoundments, VADEQ requires solid waste permits under 9VAC20-81-810 B
and D. These follow the full public participation procedures for new
solid waste permits stated above, including public notice, a public
comment period, and a public hearing. Due to public interest in these
draft permit actions, VADEQ maintains a Coal Ash Solid Waste Permit
Actions web page with links to facility-specific web pages that provide
brief summaries, application submittals, VADEQ correspondence, and the
draft permit; after a final decision, the final permit and a response
to comments are posted.
For major permit modifications, when the Director proposes to
approve a modification, VADEQ uses the same permit issuance procedures
as for new permits pursuant to 9VAC20-81-600 F 3 d and 9VAC20-81-450 E,
but a public hearing is not required for every major modification. If
the modification would expand a facility or increase capacity, the
process follows the same public participation procedures as outlined
above for new solid waste permits. For other major modifications, at
least a 30-day public comment period is required. When there is
significant public interest, VADEQ may hold a public hearing and extend
the comment period to 45 days under 9VAC20-81-450 E 4 and E 5.
Existing CCR landfills already permitted as industrial landfills
were required to modify their permits to incorporate CCR rule
requirements under 9VAC20-81-810 A. These were processed as major
modifications without mandatory hearings in accordance with 9VAC20-81-
450 E 4, reflecting that the landfills were already operating under the
VSWMR and the CCR provisions were self-implementing. VADEQ supported
public participation by maintaining a web page for each power station
with summaries, submitted applications, VADEQ correspondence, draft
permits, public comment information, and, after decisions, final
permits and responses to comments. These web pages continue to provide
summary information about the website and solid waste permit status. To
facilitate permitting transparency (effective September 2023), the
public, applicants, and their consultants can obtain information about
the critical steps and schedules for VADEQ solid waste permitting
actions through the Permitting Enhancement and Evaluation Platform
(PEEP) and monitor permitting across multiple State agencies on permit
status and timelines via the Virginia Permit Transparency (VPT)
website.
[[Page 66647]]
b. Challenges to Permit Decisions
Final permit decisions are subject to appeal in accordance with the
Administrative Process Act, Chapter 40 of the Code of Virginia
(Sec. Sec. 2.2-4000 through 2.2-4033). A major modification to a CCR
unit permit is subject to appeal through the same process described
above.
EPA determined that the Virginia approach to public participation
requirements provides adequate opportunities for public participation
in the permitting process sufficient to meet the standard for program
approval. The provisions described above meet the three criteria listed
at the beginning of this section by providing several means by which
documents for draft and final permit determinations are made available
for public review and comment, as well as ensuring that public comments
on permit determinations are considered and significant comments are
responded to in the permit record.
3. Guidelines for Compliance Monitoring Authority
An adequate permit program must provide the State with the
authority to gather information about compliance, perform inspections,
and ensure that the information it gathers is suitable for enforcement.
Section 10.1-1456 of the Code of Virginia authorizes the Director of
VADEQ, or his designee, the right to conduct inspections ``to determine
whether the provisions of any law administered by the Board, Director
or Department, any regulations of the Board, any order of the Board or
Director or any conditions in a permit, license or certificate issued
by the Board or Director are being complied with.''
The State has authorities and guidelines for inspections, analysis
and monitoring, which allow the State to: (1) Verify the accuracy of
information submitted by owners or operators of the CCR unit; (2)
Verify the adequacy of methods (including sampling) used by owners or
operators in developing that information; (3) Produce evidence
admissible in an enforcement proceeding; and (4) Receive and ensure
proper consideration of information submitted by the public. Compliance
with permit conditions and associated documents will be assessed by
VADEQ inspectors and permitting staff. Virginia's laws and regulations,
both Sec. 10.1-1409 B 4 of the Code of Virginia and 9VAC20-81-600,
authorize the Director to amend permits to meet applicable regulatory
requirements. Both permits issued and regulations promulgated by the
Board are enforceable under Virginia State law (Sec. 10.1-1455 C of
the Code of Virginia).
It is VADEQ regional staff's practice to inspect these facilities
at least once each year. VADEQ has maintained a summary Coal Ash Solid
Waste Permit Actions web page. 9VAC20-81-10 et seq. This page contains
links to CCR facility-specific web pages for CCR sites with current
permitting actions, with each page containing a brief facility summary,
application submittals, VADEQ correspondence, the draft permit, and,
following a final permit decision, the final permit and response to
comments.
Accordingly, EPA determined that these compliance monitoring
authorities are adequate, and that this aspect of the Virginia CCR
permit program meets the standard for program approval.
4. Guidelines for Enforcement Authority
An adequate State CCR permit program must provide the State with
adequate enforcement authority to administer its State CCR permit
program, including the authority to: (1) Restrain any person from
engaging in activity which may damage human health or the environment,
(2) Sue to enjoin prohibited activity, and (3) Sue to recover civil
penalties for prohibited activity.
Administrative and judicial enforcement capabilities to ensure
compliance, including enforcement of orders and permit conditions and
imposition of penalties, are provided by Sec. 10.1-1455 of the Code of
Virginia. Section 10.1-1402 of the Code of Virginia authorizes and
directs the Board to adopt solid waste management regulations and
standards necessary to protect public health and environment and issue
permits and orders.
Based on the foregoing, EPA determined that this aspect of the
Virginia CCR permit program meets the standard for program approval.
5. Intervention in Civil Enforcement Proceedings
Based on RCRA section 7004, an adequate CCR State permit program
must provide an opportunity for citizen intervention in civil
enforcement proceedings. Specifically, the State must either: (1)
Provide for citizen intervention as a matter of right; or (2) Have in
place a process to: (a) Provide notice and opportunity for public
involvement in civil enforcement actions, (b) Investigate and provide
responses to citizen complaints about violations, and (c) Not oppose
citizen intervention when permissive intervention is allowed by
statute, rule, or regulation.
Public participation in the compliance evaluation and enforcement
programs is encouraged by VADEQ under 9VAC20-81-70 of the VSWMR. It is
the department's practice to: (1) Investigate all citizen complaints
and provide written responses to all signed, written complaints from
citizens, concerning matters within the Virginia Waste Management
Board's purview; (2) Not oppose intervention by any citizen in a suit
brought before a court by the department as a result of the enforcement
action; and (3) Provide notice on the department's internet website;
and provide at least 30 days of public comment on proposed settlements
of civil enforcement actions except where the settlement requires some
immediate action. Where a public comment period is not held prior to
the settlement of an enforcement action, public notice will still be
provided following the settlement. 9VAC20-81-70.
EPA determined that these authorities provide for an adequate level
of citizen involvement in the enforcement process, and that this aspect
of the Virginia CCR permit program meets the standard for program
approval.
B. Adequacy of Technical Criteria
EPA conducted an analysis of the Virginia CCR permit program
application, including a thorough analysis of Virginia statutory
authorities at Sec. 10.1-1402 of the Code of Virginia for the CCR
program, as well as its regulations at 9VAC20-81-10 et seq. As noted
above, Virginia has requested approval of a partial CCR permit program.
1. Virginia CCR Units and Resources
VADEQ has identified 25 CCR units (7 landfills and 18 surface
impoundments) at 8 facilities in Virginia.\5\ The VADEQ demonstrated
that it has the personnel to administer a permit program that is at
least as protective as the Federal requirements.\6\ VADEQ indicates
that the Virginia program is funded by Virginia general funds
appropriated to VADEQ. In addition, VADEQ applied for EPA's State and
Tribal Assistance Grants (STAG) funding for Fiscal Years 2023 through
2025. In total, VADEQ has received $571,396.00 in funding to develop
its CCR permit program. If EPA
[[Page 66648]]
receives future appropriations, if approved, VADEQ will be eligible to
receive funds for implementation of its CCR permit program. EPA
determined that the VADEQ staffing and funding are adequate for VADEQ
to administer the CCR permit program.
---------------------------------------------------------------------------
\5\ For more information on the specific facilities covered by
the Virginia CCR Permit Program, see pages 8-9 of the Narrative
Description, which is included in the docket for this action.
\6\ The discussion on State personnel is included in sections
II, IV, and VI of the Narrative Description, which is included in
the docket for this action, and is described further in the
Technical Support Document.
---------------------------------------------------------------------------
2. Virginia CCR Regulations
EPA determined that the portions of the Virginia CCR permit program
that were submitted for approval meet the standard for approval under
RCRA section 4005(d)(1)(B)(i), 42 U.S.C. 6945(d)(1)(B)(i). To make this
determination, EPA compared the technical requirements in the Virginia
CCR regulations at 9VAC20-81-800 et seq. to the Federal CCR regulations
at 40 CFR part 257 to determine whether they differed from the Federal
requirements, and if so, whether those differences met the standard in
RCRA sections 4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii)
and (C).
Prior to incorporation of the Federal CCR regulations, the VSWMR
regulated CCR landfills as industrial landfills. Under the VSWMR,
industrial landfills are required to have solid waste permits and
conform to siting, design/construction, operation, monitoring, closure,
and postclosure care requirements specific to industrial landfills.
Following incorporation of the Federal CCR requirements, CCR landfills
are designated as a subset of industrial landfills under the VSWMR and
the landfills will be subject to both existing requirements for
industrial landfills and newly incorporated requirements for CCR
landfills. CCR surface impoundments were previously regulated under the
State Water Control Law, which allowed closure of impoundments in
accordance with water pollution control regulations.
Virginia incorporated 40 CFR part 257, subpart D into the VSWMR by
reference effective January 27, 2016 (9VAC20-81-800). Virginia also
incorporated amendments to 40 CFR part 257, subpart D as a result of
the 2016 direct final rule (81 FR 51802, August 5, 2016) into the VSWMR
by reference, effective May 3, 2017. Since 2016, EPA has made
additional amendments to the 2015 CCR rule. Virginia incorporated all
amendments of 40 CFR part 257, subpart D promulgated through December
14, 2020, into the VSWMR by reference, effective January 15, 2025.
The regulatory incorporation by reference of the Federal CCR
regulations does not incorporate the Participating State Director
approval option; reserves 40 CFR 257.50(e); does not incorporate the
vacated six-inch vegetative height requirement in 40 CFR 257.73 and
257.74; and does not incorporate 40 CFR 257.90(g). The only changes to
the CCR rule language that Virginia changed as part of incorporation
were to note that the term ``Director'' shall supplant ``State
Director'' wherever it appears and that ``qualified professional
engineer'' or ``engineer'' means a ``professional engineer'' certified
to practice in the Commonwealth of Virginia as defined in 9VAC20-81-10.
3. Virginia Partial Program
VADEQ is seeking approval of its partial CCR permit program
pursuant to RCRA section 4005(d). Virginia's CCR regulations reflect 40
CFR part 257, subpart D, as amended through December 14, 2020; however,
the Federal CCR regulations have changed since then as a result of
ongoing developments, the Legacy CCR surface impoundments and CCR
management units final rule (89 FR 38985, May 8, 2024) (the 2024 Legacy
Rule), and the CCR Management Unit Deadline Extension Rule (91 FR 5806,
February 10, 2026). VADEQ has not adopted regulations reflecting the
2024 or 2026 changes. Therefore, VADEQ has not sought approval of any
State regulations that would operate in lieu of these amendments. EPA
is approving only those aspects of Virginia's CCR program that were
submitted for approval.
In the 2024 Legacy Rule, EPA amended certain terms and provisions
that apply to all CCR units. It is EPA's understanding that VADEQ
interprets the provisions in 9VAC20-81-800 the same as EPA interprets
the corresponding provisions in 40 CFR part 257, subpart D. Therefore,
EPA is approving the State's version of the following requirements:
1. Throughout 40 CFR part 257, subpart D, the regulations were
amended by removing the phrase ``Web site'' and adding in its place the
word ``website'' wherever it appears.
2. 40 CFR 257.50(c); this amendment revises the scope of
applicability to specify that it includes inactive CCR surface
impoundments at utilities or power producers regardless of how
electricity is currently being produced at the facility.
3. 40 CFR 257.51; this section was reserved, as the effective date
of 40 CFR part 257, subpart D, October 19, 2015, has passed.
4. 40 CFR 257.52; this amendment clarifies that all CCR units are
subject to the requirement to comply with all other Federal, State,
Tribal, or local laws or other requirements. In addition, all CCR units
continue to be subject to 40 CFR 257.3-1, 257.3-2, and 257.3-3.
5. ``Active facility or active electric utilities or independent
power producers''; this amendment to 40 CFR 257.53 clarifies that the
relevant operational date for any active facility or active electric
utilities or independent power producers is on or after October 19,
2015.
6. ``CCR landfill or landfill''; this amendment to 40 CFR 257.53
clarifies that a CCR landfill means an area of land or an excavation
that ``contains'', rather than ``receives'', CCR, and meets the other
criteria of the definition.
7. ``CCR surface impoundment or impoundment''; this amendment to 40
CFR 257.53 deleted the words ``which is''.
8. ``CCR unit''; this amendment to 40 CFR 257.53 clarifies that
this term includes legacy CCR surface impoundments and CCRMU.
9. ``Contains both CCR and liquids''; this additional definition in
40 CFR 257.53 is consistent with the term's plain meaning and
dictionary definitions as this term used in the closure performance
standard in 40 CFR 257.102(d)(2)(i) for CCR surface impoundments.
10. ``Inactive CCR surface impoundment'', this amendment to 40 CFR
257.53 clarifies that this term is applicable to such CCR surface
impoundments ``located at an active facility.''
11. ``Infiltration''; this additional definition in 40 CFR 257.53
is consistent with the term's plain meaning and dictionary definitions
to assist in the application of closure performance standards for CCR
units.
12. ``Liquids''; this additional definition in 40 CFR 257.53 is
consistent with the term's plain meaning and dictionary definitions to
assist in the applicability for CCR surface impoundments and the
application of closure performance standards for CCR units.
13. ``State director''; this amendment to 40 CFR 257.53 clarifies
that the State director is the chief administrative officer of the lead
State agency responsible for implementing the State program regulating
disposal in all CCR units.
14. ``Technically feasible or feasible''; this amendment to 40 CFR
257.53 clarifies that certain requirements of 40 CFR part 257, subpart
D refer only to feasible rather than technically feasible. The
amendment ensures that these terms are interpreted in the same way.
15. ``Technically infeasible or infeasible''; this amendment to 40
CFR 257.53 clarifies that certain requirements of 40 CFR part 257,
subpart D refer only to infeasible rather
[[Page 66649]]
than technically infeasible. The amendment ensures that these terms are
interpreted in the same way.
16. 40 CFR 257.61(a); this amendment updates a reference to 40 CFR
230.41(a), as the previously referenced provision has since been
amended.
17. 40 CFR 257.80(a); this amendment clarifies that all CCR units
are subject to the fugitive dust requirements.
18. 40 CFR 257.90(a); this amendment clarifies that all CCR units
are subject to the groundwater monitoring and corrective action
requirements. In addition, it corrects a typographical error.
19. 40 CFR 257.100(a)(1); this amendment clarifies that inactive
CCR surface impoundments, regardless of how the facility produces
electricity through non-fuels, are subject to the same compliance
deadlines applicable to existing CCR surface impoundments, subject to
certain requirements.
20. 40 CFR 257.104(a); this amendment clarifies that all owners or
operators of CCR units that are subject to 40 CFR 257.102 are subject
to the post-closure care requirements, except for those owners and
operators of a CCR unit that elect to close the CCR unit by removing
CCR.
The following list identifies amendments to the requirements in 40
CFR part 257, subpart D that were not included in Virginia's
application. First, these Federal CCR regulations will continue to
apply directly to, and remain Federally enforceable for, each CCR unit
in Virginia. This means that the requirements in 9VAC20-81-800 that do
not meet the standard for approval as of the date of the Proposed
Approval, as enumerated below, are not being approved:
1. 40 CFR 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), and
257.74(d)(1)(iv) for vegetative cover for slope stability;
2. 40 CFR 257.90(g) for suspension of groundwater monitoring; and
3. 40 CFR 257.95(h)(2) for groundwater protection standards for
constituents in appendix IV having no Maximum Contaminant Levels. VADEQ
sought approval for this provision, but it was challenged in court and
is under reconsideration by the Agency; therefore, EPA is not able to
approve this provision;
Second, EPA amended certain provisions of the Federal CCR
regulations in the 2024 Legacy Rule that apply to all CCR units and are
more prescriptive than the requirements in the 2015 CCR Rule. VADEQ did
not adopt these amendments and did not seek approval of these
provisions. Thus, the following Federal provisions will be applicable
to CCR units in Virginia:
1. ``Operator''; this amendment to 40 CFR 257.53 specifies the
definition of operator to include certain other person(s) including
those responsible for disposal or otherwise actively engaged in the
solid waste management of CCR and person(s) responsible for directing
or overseeing groundwater monitoring, closure or post-closure
activities at a CCR unit.
2. ``Owner''; this amendment to 40 CFR 257.53 broadened the
definition of owner to include person(s) who own a facility, whether in
full or in part.
3. 40 CFR 257.80(b)(6); this amendment specifies that the owner or
operator must amend the written fugitive dust control plan no later
than 30 days whenever there are certain changes in condition.
4. 40 CFR 257.102(c)(2); this amendment specifies the criteria for
complete removal and decontamination activities during the active life
and post-closure care period of a CCR unit.
5. 40 CFR 257.102(d)(2); this amendment specifies that the closure
performance standards for drainage and stabilization of a unit when
leaving CCR in place apply to all CCR units, including CCR management
units (CCRMU) and CCR landfills, where free liquids remain in the unit.
6. 40 CFR 257.102(f)(2)(ii)(C) and(D); these amendments specify
that CCR landfills that intersect with groundwater are eligible for the
closure time extensions available to CCR surface impoundments, subject
to certain requirements.
7. 40 CFR 257.104(a)(2), (c)(1) and (3); these amendments specify
that an owner or operator closing a CCR unit pursuant to the closure by
removal and decontamination standards during the active life and post-
closure care period, 40 CFR 257.102(c)(2), must complete groundwater
corrective action.
8. 40 CFR 257.104(g); this amendment specifies that a deed
notation, required pursuant to 40 CFR 257.102(i), may be removed after
the owner or operator demonstrates that groundwater monitoring
concentrations no longer exceed any protection standard (i.e., the unit
must be in detection monitoring) and certain notifications of
completion of post-closure care are completed.
9. 40 CFR 257.105(a); this amendment specifies that each file in
the operating record must indicate the date the file was placed in the
record.
10. 40 CFR 257.105(e); (f)(1) through (14); (f)(19); (g); (h)(1)
through (4); (h)(10) through (11); (h)(13) through (14); (i)(4) through
(20); these amendments extend the retention times for certain documents
maintained in the operating record.
11. 40 CFR 257.107(b); this amendment specifies that owners and
operators using one website to meet the requirements of multiple
environmental rules must delineate the postings for each regulatory
program under a separate heading on the combined website.
12. 40 CFR 257.107(e); (f)(1) through (4); (f)(6) through (13);
(f)(18); (g); (h)(1) through (3); (h)(8); (h)(10) through (11); (i)(4)
through (20); these amendments extend the retention times for certain
documents maintained on the facility's CCR website.
Third, in the 2024 Legacy Rule, EPA added requirements for legacy
CCR surface impoundments and amended certain requirements in the 2026
CCR Management Unit Deadline Extension Rule. VADEQ did not adopt these
amendments. Thus, any legacy CCR surface impoundments in Virginia will
remain subject to the following Federal CCR regulations:
1. 40 CFR 257.50(e); this amended provision specifies that 40 CFR
part 257, subpart D applies to electric utilities or independent power
producers that ceased producing electricity prior to October 19, 2015,
and have a legacy CCR surface impoundment onsite.
2. ``Inactive facility or inactive electric utility or independent
power producer''; this added definition to 40 CFR 257.53 specifies the
facility where legacy CCR surface impoundments are located.
3. ``Legacy CCR surface impoundment''; this added definition to 40
CFR 257.53 specifies a new type of CCR unit that meets certain
criteria.
4. 40 CFR 257.100(a)(2); EPA amended 40 CFR 257.100(a) to add
paragraph (2), which specifies that legacy CCR surface impoundments are
subject to all of the requirements applicable to existing CCR surface
impoundments, except for the requirements in 40 CFR 257.60 through
257.64 and 257.71.
5. 40 CFR 257.100(f) through (j); these additional provisions
include reporting and technical requirements for legacy CCR surface
impoundments.
6. 40 CFR 257.101(e); this added provision specifies the deadlines
when owners or operators of legacy CCR surface impoundments must
initiate closure.
7. 40 CFR 257.101(g); this added provision specifies requirements
for deferral to permitting for closures conducted under substantially
equivalent regulatory authority.
8. 40 CFR 257.102(e)(4)(vi) and (vii); these amended provisions
clarify that legacy CCR surface impoundments and
[[Page 66650]]
CCRMU are not eligible for the idling provisions under the criteria for
conducting closure or retrofit of CCR units in 40 CFR 257.102(e).
9. 40 CFR 257.102(f)(1)(ii); this amended the closure provisions to
include legacy CCR surface impoundments to the list of CCR units that
are provided five years to complete closure.
10. 40 CFR 257.105(k), 257.106(k), and 257.107(k); these added
provisions specify recordkeeping, notification, and CCR website posting
requirements for legacy CCR surface impoundments.
Fourth, in the 2024 Legacy Rule, EPA also added requirements for
CCR management units and amended certain requirements in the 2026 CCR
Management Unit Deadline Extension Rule. VADEQ did not adopt these
provisions. Thus, any CCR management units in Virginia will remain
subject to the following Federal CCR regulations:
1. 40 CFR 257.50(d); this amended provision specifies the scope of
CCRMU requirements.
2. ``CCR management unit''; this additional definition in 40 CFR
257.53 is for a new type of CCR unit.
3. ``Closed prior to October 19, 2015''; this additional definition
in 40 CFR 257.53 specifies the applicability of CCR landfills or
surface impoundments that completed closure of the unit in accordance
with State law prior to October 19, 2015.
4. ``Critical infrastructure''; this additional definition in 40
CFR 257.53 specifies infrastructure, large buildings, or other
structures vital to the success or continuation of current site
operations or activities for the public welfare. Under the Federal CCR
regulations, CCRMU located under critical infrastructure have the
option to defer certain requirements to permitting.
5. ``Inactive CCR landfill''; this additional definition in 40 CFR
257.53 is for a new type of CCR unit related to CCRMU.
6. ``Regulated CCR unit''; this additional definition in 40 CFR
257.53 is a conforming change, which means any new CCR landfill,
existing CCR landfill, new CCR surface impoundment, existing CCR
surface impoundment, inactive CCR surface impoundment, or legacy CCR
surface impoundment. This term specifies that CCRMU are not considered
regulated CCR units.
7. 40 CFR 257.75; this additional section includes requirements for
identifying CCRMU.
8. 40 CFR 257.90(b)(3); this additional provision specifies a
deadline for the owners and operators of CCRMU to comply with certain
groundwater monitoring requirements.
9. 40 CFR 257.90(e); EPA amended one sentence in this provision to
add an annual groundwater monitoring and corrective action report
deadline for CCRMU. VADEQ has not adopted this amendment, see 9VAC20-
81-800. Therefore, the majority of this provision, as adopted by VADEQ
based on the December 14, 2020 version of 40 CFR 257.90(e), is approved
for VADEQ to administer, but the added deadline for CCRMU will remain
the applicable criteria for CCRMU in Virginia and any CCRMU in Virginia
will remain subject to the Federal CCR regulations.
10. 40 CFR 257.95(b); this amended provision adds a deadline for
CCRMU to sample and analyze the groundwater for all constituents in 40
CFR part 257, appendix IV.
11. 40 CFR 257.101(f); this additional provision specifies the
deadlines when CCRMU must initiate closure.
12. 40 CFR 257.101(g) and (h); these include additional
requirements for deferral to permitting for closures conducted under
substantially equivalent regulatory authority and under critical
infrastructure.
13. 40 CFR 257.102(b)(2)(iii) and (v); these amended provisions
renumber paragraph (b)(2)(iii) to (iv) and add new paragraphs
(b)(2)(iii) and (v). The added provisions are only applicable to CCRMU.
14. 40 CFR 257.102(f)(1)(iii); this additional provision specifies
when CCR management units must complete closure activities.
15. 40 CFR 257.102(f)(2)(ii)(E) and (F); these additional
provisions specify when CCR management units may extend the complete
closure activities.
16. 40 CFR 257.104(d)(2)(iii); these amended provisions renumber
paragraph (d)(2)(iii) to (iv) and add a new paragraph (d)(2)(iii). This
added provision is only applicable to CCRMU.
17. 40 CFR 257.105(f)(25) and (26), 40 CFR 257.106(f)(24) and (25),
40 CFR 257.107(f)(24) and (25); these include additional recordkeeping,
notification, and CCR website posting provisions for CCRMU.
EPA determined that the Virginia CCR regulations contain all of the
technical elements of the Federal CCR regulations, including
requirements for location restrictions, design and operating criteria,
groundwater monitoring and corrective action, closure requirements and
post-closure care, recordkeeping, notification, and CCR website posting
requirements. The Virginia CCR permit program also contains State-
specific language, references, definitions, and State-specific
requirements that differ from the Federal CCR regulations, but which
EPA has determined to be ``at least as protective as'' the Federal
criteria. These State-specific requirements are also discussed further
in sections III.1. and V. of the Technical Support Document.
The effect of approving a State CCR permit program is that, except
for the provisions for which EPA has not granted approval, the Virginia
CCR permit program will apply in lieu of the Federal CCR regulations.
C. Virginia CCR Permits
Pursuant to Virginia's CCR regulations, the owner or operator of
existing CCR landfills and impoundments will comply with State
regulations that incorporate 40 CFR part 257, subpart D. 9VAC20-81-810.
This section required owners and operators of all CCR units to submit
permit applications to VADEQ by October 17, 2017. All owners and
operators of CCR units within the Commonwealth applied for a modified
permit. Subsequently, VADEQ issued permits to the owners and/or
operators of all CCR units in the Commonwealth.
1. Virginia's Permits Issued Under the Commonwealth CCR Regulations Are
Not Part of the Permit Program Evidence Under Review
On June 6, 2025, VADEQ submitted its partial CCR permit program
application and requested approval of Virginia's partial CCR permit
program. On September 25, 2025, EPA sent comments to VADEQ and
requested that VADEQ ``Please prepare, in writing, a statement
indicating if Virginia DEQ would like EPA to review any previously
issued or pending CCR landfill or CCR surface impoundment permits to
ensure the permits align with the Federal requirements. EPA can review
the existing permits as part of this program review or can review them
as part of a future program review. See 42 U.S.C. 6945(d)(1)(A), and
(d)(1)(B).''
On March 4, 2026, VADEQ submitted a revised partial CCR permit
program application that indicated to EPA that it does not seek to have
its existing permits approved as part of its partial program. On page 7
of the Narrative Description, VADEQ stated that, ``While DEQ has issued
solid waste permits . . . at this time DEQ is only requesting EPA's
review and partial approval of the CCR permitting program . . . and
that EPA review DEQ issued permits as part of a future program review .
. . Upon federal approval of Virginia's CCR permit program, DEQ will
initiate a review of existing solid waste permits for CCR facilities
and modify permits
[[Page 66651]]
following the applicable procedures outlined herein.''
VADEQ committed to review and modify these permits to ensure
compliance with the Federally approved program, after EPA issues its
final determination of adequacy. Therefore, EPA has treated these
existing permits as outside the program evidence submitted for EPA
review and thus not relevant to the present decision on the partial
permit program. See 42 U.S.C. 6945(d)(1)(A), and (d)(1)(B). EPA is
basing its proposed decision on information in the program application
package, as outlined in EPA's 2017 Guidance Document,\7\ submitted by
VADEQ on June 6, 2025, and revised on March 4, 2026.
---------------------------------------------------------------------------
\7\ See Chapter 4--Permit Program Application Checklist.
---------------------------------------------------------------------------
2. Status of Virginia's Previously-Issued Permits Issued Under the
Commonwealth CCR Regulations
Because Virginia has chosen to exclude its previously-issued
permits from the scope of its permit program application, those permits
also would not become effective under RCRA as a consequence of this
final approval. Thus, any permits issued prior to EPA's approval of
Virginia's partial program will not provide facilities with the Federal
permit shield in RCRA sections 4005(d)(3) and (d)(6). 42 U.S.C.
6945(d)(3) and (d)(6). Instead, these permits will only become a part
of Virginia's approved program and give rise to the Federal permit
shield after a major modification is completed ``in accordance with''
the approved program, including providing a public notice and comment
period on the entirety of each CCR permit. 42 U.S.C. 6945(d)(6)(A).
Similarly, RCRA section 4005(d)(3)(A) makes clear that in the absence
of a permit ``under'' an approved State program, facilities must comply
with the Federal CCR regulations. EPA intends to review the modified
permits in conjunction with the program review required by RCRA section
4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii). 42 U.S.C. 6945(d)(1)(D)(i) and
(ii).
IV. EPA Responses to Comments on the Proposed Determination
EPA announced its proposal to approve Virginia's partial CCR permit
program, and a 60-day public comment period on May 4, 2026 (91 FR
23924). EPA also held a public hearing on June 24, 2026. The public
hearing provided interested persons the opportunity to present
information, views, or arguments concerning EPA's proposal.\8\ EPA
received 14 written public comments and no additional comments during
the public hearing.
---------------------------------------------------------------------------
\8\ Public Hearing on Proposed Approval of the Virginia CCR
Permit Program (Via VTC Platform/Webinar). June 24, 2026. EPA-HQ-
OLEM-2025-3325-0049.
---------------------------------------------------------------------------
EPA received several comments that support approval of Virginia's
CCR permit program and VADEQ's ability to administer the program. The
comments encouraged continued expedited approval of state programs by
focusing on the program and not evaluating already issued permits. Some
commenters want VADEQ to rapidly adopt new revisions as they become
available. Several commenters argued that EPA must consider the
performance of VADEQ in administering the program. The commenters
allege that VADEQ has demonstrated that it cannot be relied upon to
adequately implement the program. These comments rely on language from
the 2024 Alabama Program Denial (89 FR 48774, June 7, 2024) and
judicial opinions on certain CCR court cases to support their position.
The commenters provided detailed concerns about CCR facilities in
Virginia. Commenters also raised questions regarding certain
definitions that are different from the federal regulations and the
adequacy of public participation. EPA also received several comments
expressing concerns over CCR contamination of the environment, concerns
that VADEQ would not properly implement the program. EPA's responses to
individual comments are provided in the Response to Comments document
included in the docket for this Action.\9\
---------------------------------------------------------------------------
\9\ Comment Summary and Response Document, Virginia Coal
Combustion Residuals State Permit Program Approval. October 2026.
EPA-HQ-OLEM-2025-3325.
---------------------------------------------------------------------------
V. Approval of the Virginia CCR Permit Program
The partial Virginia CCR permit program, as described in its
Application and Units II and III of this preamble, is approved. Because
this is a partial program approval, only the State requirements that
have been approved will operate in lieu of the analogous Federal
requirements. Accordingly, owners and operators of CCR units in
Virginia will remain responsible for compliance with all applicable
requirements in 40 CFR part 257 for which Virginia did not seek
approval that are listed in Unit III.B. EPA will implement these
provisions under the Federal CCR program, until and unless Virginia
submits a revised CCR permit program application and receives approval
for these provisions. A permit issued by a State is not a shield for
noncompliance with these 40 CFR part 257 provisions. For all CCR units
in the State, the Federal regulations at 40 CFR part 257 will remain in
effect until such time that VADEQ permits those units under its
approved CCR permit program after providing an opportunity to comment
on the entire permit consistent with the process required for new
permits.
RCRA section 4005(d)(1)(D) specifies that EPA will review a State
CCR permit program:
<bullet> From time to time, as the Administrator determines
necessary, but not less frequently than once every 12 years;
<bullet> Not later than three years after the date on which the
Administrator revises the applicable criteria for CCR units under part
257 of title 40, CFR (or successor regulations promulgated pursuant to
RCRA sections 1008(a)(3) and 4004(a));
<bullet> Not later than one year after the date of a significant
release (as defined by the Administrator), that was not authorized at
the time the release occurred, from a CCR unit located in the State;
and
<bullet> In request of any other State that asserts that the soil,
groundwater, or surface water of the State is or is likely to be
adversely affected by a release or potential release from a CCR unit
located in the State for which the program was approved.
RCRA section 4005(d)(4)(B) also provides that in a State with an
approved CCR permitting program, the Administrator may commence an
administrative or judicial enforcement action under RCRA section 3008
if:
<bullet> The State requests that the Administrator provide
assistance in the performance of an enforcement action; or
<bullet> After consideration of any other administrative or
judicial enforcement action involving the CCR unit, the Administrator
determines that an enforcement action is likely to be necessary to
ensure that the CCR unit is operating in accordance with the criteria
established under the State's permit program.
VI. Final Action
In accordance with 42 U.S.C. 6945(d), EPA is approving the Virginia
partial CCR permit program.
Lee Zeldin,
Administrator.
[FR Doc. 2026-21622 Filed 10-21-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on October 22, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.