Why It Matters
EPA is letting Virginia's state environmental agency run its own coal ash permit program in place of federal rules, so the state's coal ash disposal sites and coal-fired power plant operators will answer to Virginia for the listed provisions starting November 23.
That changes November 23, when VADEQ takes over primary permitting and enforcement authority for the approved provisions. Once it issues a permit, direct federal enforcement of those provisions is no longer available.
Before EPA's approval, coal ash landfills and surface impoundments in Virginia were directly subject to the self-implementing federal coal combustion residuals (CCR) program established in 2015 under 40 CFR part 257, with no state permit program operating in lieu, and on November 23, the Virginia Department of Environmental Quality (VADEQ) will run Virginia's EPA-approved coal ash permit program in place of the federal program for the listed provisions.
EPA acted under authority granted by the 2016 Water Infrastructure Improvements for the Nation Act, which authorizes states to develop CCR permitting programs that take effect instead of the federal program upon EPA approval.
The Broader Context
The approved program covers 25 CCR units at eight facilities in Virginia, and once VADEQ issues a permit, direct federal enforcement of the corresponding approved state CCR regulations is no longer available for those provisions. Of those 25 units, 18 are surface impoundments, and seven are landfills.
EPA found that Virginia's partial CCR permit 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."
Owners and operators of all CCR units in Virginia must obtain or modify VADEQ solid waste permits covering design, operation, monitoring, closure, and post-closure care; a Certificate to Operate is required before accepting waste, and permits run for the life of the facility through termination of post-closure care. VADEQ regional staff must inspect each facility at least once per year.
Virginia's CCR regulations incorporate 40 CFR part 257, subpart D only through December 14, 2020, and the state has not adopted the 2024 Legacy CCR Surface Impoundments and CCR Management Units Rule or the 2026 CCR Management Unit Deadline Extension Rule; those federal provisions remain directly applicable to legacy surface impoundments and CCR management units in Virginia.
Several federal CCR requirements remain directly enforceable and outside VADEQ's approved program: certain vegetative cover and slope-stability provisions, groundwater monitoring suspension rules, and groundwater protection standards for constituents without maximum contaminant levels, which EPA says are currently under reconsideration.
VADEQ committed to review and modify all existing CCR permits to ensure compliance with the federally approved program after EPA's final determination; existing permits were not reviewed as part of this approval and do not constitute a permit shield for the unapproved federal provisions.
The Association of State and Territorial Solid Waste Management Officials' Materials Management Subcommittee said it supported EPA's proposal to approve Virginia's partial CCR permit program. Several commenters argued EPA must consider VADEQ's performance in administering the program, alleging VADEQ has demonstrated it cannot be relied upon to adequately implement it; those commenters cited the 2024 Alabama Program Denial and judicial opinions on CCR court cases, and raised detailed concerns about specific CCR facilities in Virginia and the adequacy of public participation.
The Bottom Line
The final approval makes no substantive changes to the scope of approval from the proposal EPA published on May 4. EPA received 14 written public comments and held a public hearing on June 24, at which no additional comments were submitted.
The approval takes effect on November 23.
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