COMMONWEALTH of VIRGINIA

DEPARTMENT OF ENVIRONMENTAL QUALITY

Street address: 629 East Main Street, Richmond, Virginia 23219

Mailing address: P.O. Box 1105, Richmond, Virginia 23218

TDD (804) 698-4021

www.deq.virginia.gov

Douglas W. Domenech

Secretary of Natural Resources

David K. Paylor

Director

(804) 698-4000

1-800-592-5482

November 18, 2010

U. S. Environmental Protection Agency

Mail code: 5305T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

RE: Virginia Department of Environmental Quality's Comments on EPA Proposed Rule

Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals from Electric Utilities 

(Docket ID No. EPA HQ-RCRA-2009-0640)

Dear Sir or Madam:

On behalf of the Virginia Department of Environmental Quality (DEQ), I appreciate this 

opportunity to provide comments on EPA’s proposed regulations related to the management and 

disposal of coal combustion residues (CCRs). At the outset, you should note that Virginia DEQ

continues to believe that, with respect to the dry handling of CCRs, these proposed regulations 

are unnecessary and EPA does not need to promulgate new CCR regulations under either 

Subtitle C or D. These regulations will adversely impact proven state regulatory programs such 

as the one in Virginia. At most, if after further consideration EPA continues to believe that a 

Federal input is necessary, then it should do so in the form of guidance that can be used as a tool 

by the states to better their rules and regulations to ensure further protection of human health and 

the environment. As proposed, these regulations will significantly impact the Commonwealth of 

Virginia in many ways regardless of whether EPA decides to regulate CCR disposal under either 

Subtitle C or Subtitle D. Therefore, if this regulatory action is pursued, Virginia DEQ

recommends that changes to both of the proposed options are necessary to avoid unintended 

adverse impacts to our state's regulatory programs, private businesses, and human health and the 

environment. 

This letter provides an overview of Virginia DEQ's comments on and concerns with the 

proposed regulation along with recommendations for EPA's consideration. Detailed comments 

providing information specifically requested by EPA as well as recommended revisions to EPA's 

proposed regulatory language and an overview of Virginia's CCR management program are 

attached (see Attachment A). 
Virginia Comment Letter

Page 2 of 4

Virginia DEQ's General Comments on Subtitle C Proposal:

Virginia DEQ maintains its position that CCR regulation under the authorities of RCRA 

Subtitle C is overly burdensome and we do not support EPA's proposal to regulate CCRs as a 

"special" hazardous waste. CCRs are not hazardous wastes, even without consideration of the 

Bevill exclusions. CCRs do not fail EPA's toxicity benchmark test, the TCLP. EPA's remarks 

that TCLP may not be a good predictor are flawed; if the TCLP is not a good predictor, then 

EPA should be taking action to amend the TCLP analysis for determining whether a solid waste 

is a toxic hazardous waste. EPA is not doing so because the TCLP is a good predictor and EPA's 

proposal to regulate CCRs as a new listing under "special" hazardous waste makes this clear as 

EPA had to create a new way to handle this non-hazardous waste under the Subtitle C 

authorities. 

Virginia DEQ again urges EPA to fully consider the repercussions of this special 

hazardous waste proposal for CCRs. How will states, already strained by budgetary cutbacks, 

deal with the fiscal impacts and permitting burden of such regulation? Fees are not an "easy" 

answer for many states, including Virginia, as fees require legislative action. How will the lack 

of hazardous waste disposal capacity be addressed especially considering the millions of 

additional tons of CCRs that would have otherwise been used, reused, or recycled and which will 

now need to be disposed of as a hazardous waste? 

EPA has continually reviewed the Bevill exemptions for CCRs and Virginia DEQ

strongly encourages EPA to maintain the Bevill exemptions for all types of CCRs. States should 

be allowed to take the lead in regulating the disposal of CCRs rather than being required to 

regulate CCRs as “special” hazardous waste under Subtitle C, because it is the states that have 

the most expertise in dealing with solid waste management issues.

For these reasons and others that are further vetted in Attachment A, Virginia DEQ has 

been and continues to be strongly opposed to regulation of CCRs as hazardous waste, special or 

otherwise. EPA's concerns regarding their oversight ability should be addressed through the 

authorities of §7003 of RCRA or through other mechanisms including congressional action.

Virginia DEQ's General Comments on Subtitle D Proposal:

Virginia DEQ does not fully support EPA's proposal to regulate CCRs under the 

authorities of RCRA Subtitle D. While the Subtitle D regulatory approach is greatly preferred 

over the Subtitle C proposal, there are issues that need further consideration if the Subtitle D 

approach is pursued by EPA. The general concern is that the proposed regulations do not provide 

states with enough flexibility regarding CCR management or disposal options. Many states, like 

Virginia, have a long history of dealing with industrial solid waste. TThe regulations need to be 

flexible enough to allow states to use equivalent alternatives rather than a specific "standard" as 

necessary and appropriate. This would include allowing states to evaluate and approve alternate 

liner and cover designs. The prescriptive one-size-fits-all approach is overly burdensome and 

unnecessary in areas where local conditions provide an equivalent degree of protection. 

As noted above, Virginia DEQ continues to believe that EPA does not need to 

promulgate new CCR regulations under either Subtitle C or D. These regulations will adversely 

impact proven state regulatory programs such as the one in Virginia. At most, if a federal 
Virginia Comment Letter

Page 3 of 4

program is necessary, then it should be in the form of guidance that can be used as a tool by the 

states to better their rules and regulations to ensure further protection of human health and the 

environment. 

Virginia DEQ's General Comments on Beneficial Use:

Defining CCR as hazardous waste will eliminate or drastically reduce its beneficial use 

potential in addition to reducing the significant environmental benefits of recycling CCR and the 

jobs associated with this market. EPA has identified no environmental benefit to defining CCR 

as hazardous waste; indeed, the only reason for this proposal is to arguably clarify EPA’s 

enforcement authority. This “benefit” does not justify the risk of adverse impacts to CCR reuse 

and recycling. The damage to environmentally sound CCR beneficial use that a special 

hazardous waste designation will cause would be irreparable. 

Virginia DEQ's Regulatory Requirements:

In Virginia, CCRs are regulated as a solid waste under our state authorities and this 

material is treated in a likewise manner as other industrial non-hazardous solid wastes. Virginia's 

regulations require an extensive permitting process for facilities that treat, store, or dispose of 

solid wastes. Beneficial uses also require review and approval prior to implementation. 

Virginia's regulations require the proper management of solid wastes, such as CCRs, in 

order to prevent adverse impacts on human health or the environment. These regulations provide 

requirements for CCR management as a solid waste, including appropriate criteria for disposal 

units and provide allowances for beneficial reuse in a manner that is protective of human health 

and the environment. Virginia, like many states, has a strong and established solid waste 

management program. Virginia's statutory law under the Virginia Waste Management Act 

includes enforcement authorities, as was demonstrated to EPA when we obtained approval for 

our municipal solid waste (MSW) program (a RCRA Subtitle D program). This approach has 

been successful for regulation of MSW and is significant proof that the states have the ability to 

regulate solid waste within their jurisdiction. 

Virginia DEQ's Recommendations:

States are best equipped to make beneficial use determinations for CCRs, whether the 

uses are for construction, manufacturing, or other applications. Virginia DEQ continues to stress 

the importance for EPA to thoroughly examine existing CCR disposal permitting and beneficial 

use programs in Virginia and other states before concluding that a broad overhaul is needed as 

opposed to formalized proper recognition and approval of state programs which has proven 

successful for the management of MSW. EPA's resources would be better served by providing 

technical guidance to states and assisting with emerging issues like the potential for changes to 

the composition of CCRs with the improvements in new air pollution control technologies.
Virginia Comment Letter

Page 4 of 4

In summary, we believe the best approach to regulating CCR nationally is to develop a 

program that can be administered by states with existing resources. Preferably such approach 

would be through Federal guidance to help the states ensure that their programs are consistently 

protective of human health and the environment. If, after further reflection, EPA determines that 

a regulatory approach is necessary, they EPA should be guided by the approach that was taken in 

the MSW program under RCRA Subtitle D bearing in mind that sufficient flexibility would be 

necessary to ensure appropriate consideration of local conditions as they relate to the design of 

liners, leachate management, and final covers. Additionally, the states should continue to 

administer the beneficial use program and be the decision-makers on beneficial use of CCR and 

other solid wastes within their borders. 

Thank you for your time and consideration of our comments. If you have any questions 

or need further clarification, please contact me at 804-698-4079 or 

Jeffery.Steers@deq.virginia.gov.

Sincerely,

Jeffery A. Steers, Director

Waste Division 

cc: James Golden, DEQ Deputy Director

Angie Jenkins, Policy Director

Attachment
Attachment A

Page 1 of 21 

Specific Comments on the Proposed Regulations

The following are Virginia DEQ's comments on the proposed regulatory language and 

suggested revisions to that language. 

SUBTITLE C OPTION:

As previously set forth in numerous correspondence and comments, CCRs should not be 

regulated under RCRA subtitle C and Virginia DEQ continues to respectfully request that 

EPA not pursue its proposal to regulate CCRs as a hazardous waste under its RCRA 

Subtitle C authorities and its regulations of 40 CFR Parts 261, 264, 265, 268, and 270. 

Regulation of CCRs as a hazardous waste will have ma jor adverse impacts on Virginia, 

including:

• Virginia's state law currently prohibits the issuance of permits for off-site 

hazardous waste disposal facilities under Subtitle C without a certificate of siting 

issued by the Virginia Waste Management Board. Since the adoption of this 

statutory requirement in 1984, no off site facility has been able to secure such a 

certificate and currently no hazardous disposal facility exists in Virginia. 

• As Virginia does not have any hazardous waste disposal capacity and due to the 

complexities of our state statutory laws, if EPA chooses the Subtitle C approach, 

all CCRs generated in Virginia will be required to be shipped out of state and 

likely will result in significant adverse economic impacts and will significantly 

increase the risk of significant adverse environmental impacts.

• The adverse impacts to beneficial use of CCRs, regardless of efforts to the 

contrary, will be substantial due to public perception and the stigma that will be 

attached if CCRs are unnecessarily deemed special hazardous waste.

• Budgetary impacts to state programs will be considerable. In Virginia that 

estimate is an additional $350,000 per year to support the regulatory, permitting 

and inspection programs. This additional impact to budgets cannot be addressed 

solely through the suggested "fees". 

Virginia DEQ does not believe that the strict environmental standards of Subtitle C are 

needed to provide adequate protection of human health and the environment as related to 

CCR management. EPA has proven success with its implementation of the municipal 

solid waste landfill (MSW) program and the associated state approval program. If EPA 

wishes to continue to pursue regulatory action, it should examine the best means for 

effectively implementing a similar program for CCR. Many states properly manage 

CCRs under state laws and regulations which are substantively equivalent to the federal 

Subtitle D standards, and these successful programs should be evaluated and encouraged.

Through its discussion of its proposal, EPA suggests that the Federal government does 

not believe that states have the ability or desire to enforce this nation’s solid waste laws. 

By invoking its Subtitle C authorities, EPA states that it can retain and assert appropriate 

enforcement authority. Virginia DEQ has consistently demonstrated the ability to conduct 

an effective and comprehensive RCRA program including a successful compliance and 

enforcement history, as is illustrated by EPA’s own feedback during the State Review 
Attachment A

Page 2 of 21 

Framework process. Further, EPA already has broad enforcement authority under RCRA 

§7003 to address potential substantial threats or endangerment to human health and the 

environment for releases of solid waste. Although EPA asserts that the enforcement 

provisions under the Subtitle C option will provide EPA with more enforcement authority 

than under the Subtitle D option, Virginia DEQ cautions EPA to examine all options and 

consider potential changes that may enhance the proposal. EPA should consider seeking 

congressional assistance to provide for greater enforcement authorities under the 

provisions of the RCRA Subtitle D rather than try to regulate CCRs under the Subtitle C 

option. 

SUBTITLE D OPTION:

The Subtitle D proposal, while infinitely more reasonable then the Subtitle C proposal, is 

not without concern. The main concern is the lack of flexibility and the budget impacts to 

implement this program if this Subtitle D option is pursued. The proposed regulations do 

not provide states with enough flexibility regarding CCR management or disposal 

options. Additionally, states seeking approval of their CCR program will have to consider 

the impacts to their budgets due to the regulatory and permitting burden that will ensue. 

These budgetary impacts, while considerably less than those under the Subtitle C option, 

are still significant especially during this time of shrinking state funds and, therefore, 

cannot be ignored. These costs must be considered and Virginia DEQ recommends that 

EPA more fully evaluate these impacts and consider the work done by EPA and ECOS 

on the cost of rules implementation.

Based on the proposed regulatory language for the Subtitle D option, Virginia DEQ

suggests the following revisions to provide for clarity and flexibility. These revisions and 

comments are in italicized text following the proposed EPA language.

Location Restrictions

Section 257.60 Proposed Rule

Sec. 257.60 Placement above the natural water table.

 (a) New CCR landfills and new CCR surface impoundments and lateral expansions

must be constructed with a base that is located a minimum of two feet above the upper 

limit of the natural water table.

 (b) For purposes of this section, natural water table means the natural level at which 

water stands in a shallow well open along its length and penetrating the surficial deposits 

just deeply enough to encounter standing water at the bottom. This level is uninfluenced 

by groundwater pumping or other engineered activities.

This proposed language is confusing. We believe that the maximum seasonal high water 

table is a threshold that can be measured through indicators such as soil morphology or 

field measurements and the use of the maximum seasonal high water table is an 

appropriate measure of the upper limit of the natural water table. We request this 

section to be modified to read as follows:
Attachment A

Page 3 of 21 

Sec. 257.40- include a new term and definition- "Maximum seasonal water table" 

means the highest level of a saturated zone (the apparent or perched water table) 

over a continuous period of more than two weeks in most years, but not a 

permanent water table.

Sec. 257.60 Placement above the uppermost aquifer.

 New CCR landfills and new CCR surface impoundments and lateral expansions 

must be constructed with a base that is located a minimum of two feet above the 

maximum seasonal water table as defined in proposed regulation 257.40 and 

certified by a qualified groundwater scientist, professional geologist, or 

professional engineer. 

Design Criteria 

Section 257.70 Proposed Rule

Sec. 257.70 Design criteria for new CCR landfills and lateral expansions.

 (a) New CCR landfills and lateral expansions of CCR landfills shall be constructed:

 (1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system that is designed and constructed to maintain less than a 30-cm depth of 

leachate over the liner. The design of the composite liner and leachate collection system 

must be prepared by, or under the direction of, and certified by an independent registered, 

professional engineer.

 (2) For purposes of this section, composite liner means a system consisting of two 

components; the upper component must consist of a minimum 30-mil flexible membrane 

liner (FML), and the lower component must consist of at least a two-foot layer of 

compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML 

components consisting of high density polyethylene (HDPE) shall be at least 60-mil 

thick. The FML component must be installed in direct and uniform contact with the 

compacted soil component.

 (3) For purpose of this section, hydraulic conductivity means the rate at which water 

can move through a permeable medium. (i.e., the coefficient of permeability).

 (b) [Reserved]

This proposed language is restrictive and would not allow designs which can be equally 

protective of groundwater and surface water. Other alternate liners have been used 

successfully throughout the country and provisions to allow alternate liners need to be 

incorporated. A composite Subtitle D liner is clearly not needed to protect groundwater 

or surface water in all geologic and climatic scenarios. States should have the flexibility 

to review and approve alternative liner designs that will provide adequate protection as 

allowed under part 258 for sanitary landfills. Therefore, we request that paragraph (a) 

(1) of this section be modified to allow alternate designs as follows:

1) With a composite liner, as defined in paragraph (a) (2) of this section and a 

leachate collection system that is designed and constructed to maintain less than 

a 30-cm depth of leachate over the liner or an alternate design approved by the 

Director of an approved State that demonstrates that leachate will be contained 
Attachment A

Page 4 of 21 

or managed in a manner that is protective of groundwater and surface water. 

The design of the composite liner and leachate collection system must be 

prepared by, or under the direction of, and certified by an independent registered, 

professional engineer. (Proposed change underlined)

Section 257.71 Proposed Rule

Sec. 257.71 Design criteria for existing CCR surface impoundments.

 (a) No later than [five years after effective date of final rule] existing CCR surface 

impoundments shall be constructed:

 (1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate 

collection system between the upper and lower components of the composite liner. The 

design shall be in accordance with a design prepared by, or under the direction of, and 

certified by an independent registered professional engineer.

 (2) For purposes of this section, composite liner means a system consisting of two 

components; the upper component must consist of a minimum 30-mil flexible membrane 

line (FML), and the lower component must consist of at least two-foot layer of 

compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML 

components consisting of high density polyethylene (HDPE) shall be at least 60-mil 

thick. The FML component must be installed in direct and uniform contact with the 

compacted soil component.

 (3) For purposes of this section, hydraulic conductivity means the rate at which water 

can move through a permeable medium (i.e., the coefficient of permeability).

When permitted designs call for composite liners, we must assure good composite action 

by requiring intimate and uniform contact between the FML component and the 

compacted soil component. Introduction of a leachate collection system between the two 

components of the composite liner system defeats the effectiveness of the composite liner. 

First, a composite liner is two liners in intimate contact with one another. The proposal 

is not that of a composite liner but of a double liner with a leak detection system. EPA is 

urged to reconsider what type of liner is to be used and to properly describe it. Virgina 

DEQ requests that paragraph (a) (1) of this section be modified to read as follows 

(changes suggested are underlined):

(1) With a composite liner, as defined in paragraph (a) (2) of this section and a 

leachate collection system above the upper component of the composite liner. The 

design shall be in accordance with a design prepared by, or under the direction 

of, a registered professional engineer and these plans shall be certified by an 

independent registered professional engineer.

Section 257.72 Proposed Rule 

Sec. 257.72 Design criteria for new CCR surface impoundments and lateral expansions.

 (a) New CCR surface impoundments and lateral expansions of CCR landfills or 

surface impoundments shall be constructed:

 (1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate 

collection system between the upper and lower components of the composite liner. The 
Attachment A

Page 5 of 21 

design of the composite liner and leachate collection system must be prepared by, or 

under the direction of, and certified by an independent registered, professional engineer.

 (2) For purposes of this section, composite liner means a system consisting of two 

components; the upper component must consist of a minimum 30-mil flexible membrane 

liner (FML), and the lower component must consist of at least a two-foot layer of 

compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. FML 

components consisting of high density polyethylene (HDPE) shall be at least 60-mil 

thick. The FML component must be installed in direct and uniform contact with the 

compacted soil component.

When permitted designs call for composite liners, we assure good composite action by 

requiring intimate and uniform contact between the FML component and the compacted 

soil component. We believe that the introduction of the leachate collection system 

between the two components of the composite liner would defeat the composite action. 

Virginia DEQ requests paragraph (a) (1) of this section be modified to read as follows

(changes suggested are underlined):.

(1) With a composite liner, as defined in paragraph (a) (2) of this section and a 

leachate collection system above the upper component of the composite liner. 

The design shall be in accordance with a design prepared by, or under the 

direction of, a registered engineer and shall be certified by an independent 

registered professional engineer.

Closure Criteria 

Section 257.100 Proposed Rule

 (c) At closure, the owner or operator of a surface impoundment must:

 (1) Eliminate free liquids by removing liquid wastes or solidifying the remaining 

wastes and waste residues;

 (2) Stabilize remaining wastes to a bearing capacity sufficient to support the final 

cover; and

 (3) Cover the surface impoundment with a final cover designed and constructed to:

 (I) provide long-term minimization of the migration of liquids through the closed 

impoundment;

 (ii) Function with minimum maintenance; and

 (iii) Promote drainage and minimize erosion or abrasion of the cover;

 (iv) Accommodate settling and subsidence so that the cover's integrity is maintained; 

and

 (v) Have a final cover system that meets the requirements of subsection (d).

Paragraph (d) of this section prescribes one cover design option and paragraph (e) 

authorizes an alternative final cover design. Therefore we request that paragraph (c) (v) 

be modified as follows (changes requested are underlined):

(v) Have a final cover system that meets the requirements of subsection (d) or 

(e).
Attachment A

Page 6 of 21 

Virginia DEQ's Response to EPA's Request for Comments on Specific Areas

In the preamble to EPA's Proposed Rule on “Hazardous and Solid Waste 

Management System; Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals from Electric Utilities" (Docket ID No. EPA HQ-RCRA-2009-

0640), EPA identified many issues for which it is soliciting comment along with 

supporting information and data. The major issues on which comments with supporting 

information and data are requested are listed below with Virginia DEQ's response to the 

comment noted in italics. 

Management of CCRs

• Whether regulatory approaches should be established individually for the four Bevill 

CCR wastes (fly ash, bottom ash, boiler slag, and FGD sludges) when destined for 

disposal.

Virginia DEQ continues to believe that the Bevill exclusion should remain in effect for all 

CCR wastes as it has for many years and has been affirmed and supported by EPA in the 

past. However, if EPA seeks to unnecessarily regulate disposal of CCR wastes, then such 

regulation should be confined to only the waste that appears of most concern to EPA, fly 

ash. 

• The regulatory approaches proposed in the notice and the alternative approaches EPA 

is considering as discussed in Section XIII of the preamble. 

Section XIII describes alternative ways to regulate CCR. Virginia DEQ believes that 

EPA should consider establishing different standards for wet storage and dry storage of 

CCR. For example, in section XIII of the preamble of the rule, EPA discussed the 

possibility of regulating wet storage under Subtitle C and dry management under Subtitle 

D due to the different risks associated with surface impoundments, and the differences 

between the physical and chemical mobility of wet vs. dry CCRs. Virginia DEQ believes 

that this type of approach is one that EPA should carefully research. Regulation of the 

different handling methods under different authorities will lead to legal issues and is 

confusing. It is the characteristics of the waste material that should determine the 

regulatory scheme .

Establishing guidances concerning these different management options would provide 

more flexibility in the proper management of CCRs and will do so in a manner that is 

protective of human health and the environment without an adverse and substantial 

additional cost burden to the states.

EPA has also stated that the enforcement provisions under the Subtitle C option provide 

EPA with more enforcement authority than under the Subtitle D option. Virginia DEQ

urges EPA to do their due diligence and examine all options and consider potential 

changes that may enhance the proposal. EPA should consider seeking from Congress 

greater enforcement authority under the provisions of the Subtitle D program if that is a 

factor that is driving EPA to pursue regulating CCRs under the Subtitle C option. This 

would allow EPA the option to further regulate CCRs without being required to label 
Attachment A

Page 7 of 21 

CCRs as hazardous waste; thereby, eliminating concerns associated with beneficially 

using a hazardous waste.

• The Agency has documented, through proven damage cases and risk analyses, that 

the wet handling of CCRs in surface impoundments poses higher risks to human 

health and the environment than the dry handling of CCRs in landfills. EPA seeks 

comments on the standards proposed in this notice to protect human health and the 

environment from the wet handling of CCRs. For example, in light of the TVA 

Kingston, Tennessee, and the Martins Creek, Pennsylvania CCR impoundment 

failures, should the Agency require that owners or operators of existing and new CCR 

surface impoundments submit emergency response plans to the regulatory authority if 

wet handling of CCRs is practiced? 

Emergency response plans are a necessary component for the safe management of any 

waste and Virginia DEQ agrees that owners or operators of CCR surface impoundments 

should have such plans in place in the event of an emergency situation. Permitted solid 

waste facilities in Virginia are required to have an emergency contingency plan and to 

have arrangements with local police and fire departments. 

• The degree to which coal refuse management practices have changed and the impacts 

of those changes or, for example, groundwater monitoring and the use of liners. 

Virginia DEQ has a very strong and established solid waste regulatory program, as our 

EPA approved MSW permit program attests to, and has successfully regulated the 

management of coal ash as industrial waste under our laws and regulations. Coal ash is 

a solid waste and, as such, is treated in a likewise manner as other industrial solid 

wastes. The Virginia Solid Waste Management Regulations provide requirements for 

CCR management, including appropriate criteria for disposal units, and allow for its 

beneficial reuse in a manner that is protective of human health and the environment. In 

2009, Virginia DEQ began working with stakeholders to revise Virginia's Coal 

Combustion Byproduct Regulations. Potential revisions to these regulations include 

additional protections that would be more protective of human health and the 

environment. The regulatory revisions being considered include:

o Inclusion of a maximum amount of fill material that could be beneficially used 

at a site under the Coal Combustion Byproduct Regulations.

o Development of a risk based approach to regulating CCR sites, based on size, 

with different requirements concerning groundwater monitoring and review of 

the information submitted. 

o Revisions to setback requirements to be more consistent with the siting 

requirements of landfills.

o Inclusion of a prohibition of creating ponds in the CCR fill areas.

o Addition of a requirement for a hydrogeologic and geotechnical report to be 

prepared for the site which provides more documentation concerning the 

subsurface conditions, including the seasonally high water table.

o Addition of operational requirements to address dust control requirements, 

compaction requirements, the maximum size of the fill area that can be open 

at one time, the placement of soil after 60 days of not receiving CCR and 

cleanout requirements for sedimentation ponds.
Attachment A

Page 8 of 21 

o Additional closure requirements were discussed. Capping of the site will 

occur using one of three options specified in the regulations. There are limits 

on disturbing the cap and final cover must be maintained on the site.

o Groundwater monitoring would be required for larger sites.

o Public notification/participation would be required, through posting of a sign 

on the site, similar to a zoning sign, advising the public of the activity.

The changes to the regulations listed above have been discussed with stakeholders; 

however, DEQ has not moved forward with developing the proposed regulation for 

public comment. Due to EPA's impending regulatory action on CCRs, DEQ put on hold 

developing a proposal in December 2009 since EPA was scheduled to release a CCR 

proposal in December 2009. At this time, DEQ has not reinitiated this rulemaking 

process but once initiated DEQ believes that changes concerning the issues listed above 

will further strengthen Virginia's Coal Combustion By -Product Regulations concerning 

the use of unencapsulated CCRs as fill material. 

Risk Assessment

• The screening analysis conducted to estimate risks from fugitive CCR dust; data from 

any ambient air monitoring for particulate matter that has been conducted; where air 

monitoring stations are located near CCR landfills or surface impoundments; and 

information on any techniques, such as wetting, compaction, or daily cover that are or 

can be employed to reduce such exposures. 

When working with stakeholders to examine ways to revise Virginia's regulations, 

additional measures were identified to be included in the regulations concerning the 

control of dust from these sites. These measures included requiring compaction of coal 

ash to occur within 72 hours of placement, requiring sites to be developed in phases, with 

a maximum phase size of 15 acres and only two phases being active at one time, and the 

covering of fill sites with soil after 60 days of not receiving CCR. Additionally, surface 

wetting or surfactant agents would be required to be applied to the site to prevent fugitive 

dust. Additionally, Virginia DEQ controls fugitive dusts under our air regulatory 

programs. Landfills, like other construction activities, are required to adhere to these 

requirements. 

• Information and data regarding the existence of drinking water wells that are downgradient of CCR disposal units, any monitoring data that exists on those monitoring 

wells and the potential of these wells to be intercepted by surface water bodies. 

The Virginia DEQ has monitoring data for monitoring wells at permitted landfills, 

including captive industrial landfills that are receiving CCRs. Groundwater monitoring 

is required in accordance with our state laws and regulations. However, it should be 

noted that EPA's request is confusing. Environmental monitoring wells are NOT 

drinking water wells, are usually constructed differently and lie within different aquifers. 

EPA should clarify what data they are looking to have provided, monitoring well data or 

down-gradient drinking water well data. 
Attachment A

Page 9 of 21 

Liners

• Whether, in addition to the flexibility provided by section 3004(o)(2), regulations 

should also provide for alternative liner designs based on, for example, a specific 

performance standard, such as the performance standard in 40 CFR 258.40(a)(1), or a 

site specific risk assessment, or a standard that the alternative liner, such as a clay 

liner, was at least as effective as the composite liner. 

The proposed language is unduly restrictive and would not allow designs which can be 

equally protective of groundwater and surface water. Other liner systems have been used 

successfully throughout the country. A composite Subtitle D liner is clearly not needed to 

protect groundwater or surface water in all geologic and climatic scenarios. States 

should have the flexibility to review and approve alternative liner designs that will 

provide adequate protection as allowed under part 258 for MSW landfills. Virginia DEQ 

has approved alternative liners to be used for our MSW sanitary landfills and has an 

established process for determining the adequacy of alternative liner proposals.

 

Beneficial Use

• The growth and maturation of state beneficial use programs and the growing 

recognition that the beneficial use of CCRs is a critical component in strategies to 

reduce GHG emissions taking into account the potentially changing composition of 

CCRs as a result of improved air pollution controls and the new science on metals 

leaching. 

As air pollution control technology evolves, the composition of CCRs will change. 

Beneficial use programs need to retain flexibility to address the changes in CCR 

composition. Due to the need for flexibility, Virginia DEQ supports EPA continuing to 

evaluate the changing composition of CCR and developing guidance concerning 

applicable beneficial use applications based on the composition of CCRs and the 

management strategies for these beneficial uses. EPA's support of beneficial use is an 

essential component of the success of these programs. 

• Information and data on the extent to which states request and evaluate CCR 

characterization data prior to the beneficial use of unencapsulated CCRs. 

Virginia DEQ's beneficial use program requires testing of any solid waste prior to it 

being beneficially used. For CCR, this would require analysis in accordance with the 

TCLP. If the CCR exceeds any characteristic for hazardous toxicity per the results of the 

TCLP, it cannot be beneficially reused under our Coal Combustion Byproduct 

Regulations. Virginia DEQ has processed requests for the beneficial use of 

unencapsulated CCRs and has a set protocol on the testing of CCRs for such use. The 

diversified uses of materials under the beneficial use program in the state allow 

regulatory staff to evaluate each potential use scenario and request testing requirements 

to fit each scenario. CCRs are regularly tested for TCLP as described above. In addition 

to the analytical results, the following additional information must be provided under the 

Coal Combustion Byproduct Regulations: 

1. A certification that the applicant has legal control over the site for the project life 

and the closure period; 
Attachment A

Page 10 of 21 

2. A certification from the governing body of the county, city, or town in which the 

site is to be located that the location and operation of the CCR site are consistent 

with all applicable ordinances; 

3. A general description of the intended use, reuse, or reclamation of CCR that 

includes the following:

a. A description of the nature, purpose and location of the fossil fuel combustion 

products site, including a topographic map showing the site area and available 

soils, and geological maps. The description shall include an explanation of how 

CCR will be stored prior to use, reuse or reclamation, if applicable; 

b. The estimated beginning and ending dates for the operation; 

c. An estimate of the volume of the CCR to be utilized; and 

d. A description of the proposed type of CCR to be used, reused, or reclaimed, 

including physical and chemical characteristics of the CCR. The chemical 

description shall contain the results of TCLP analyses for the specified 

constituents. The description shall also contain a statement that the project will 

not manage CCR that fail the TCLP testing;

4. A certification by a professional engineer licensed to practice by the 

Commonwealth that the project meets the locational restrictions and setback 

requirements of the regulations; 

5. A certificate signed by a professional engineer licensed to practice by the 

Commonwealth that the project has been designed in accordance with the standards 

of the regulations; 

6. An operational plan;

7. A closure plan; and

8. A signed statement that the owner or operator shall allow authorized 

representatives of the Commonwealth, upon presentation of appropriate credentials, 

to have access to areas in which the activities covered by this chapter will be, are 

being, or have been conducted to ensure compliance. 

• The appropriate means of characterizing beneficial uses that are both protective of 

human health and the environment and provide benefits. EPA is also requesting 

information and data demonstrating where the federal and state programs could 

improve on being environmentally protective and, where states have, or are 

developing, increasingly effective beneficial use programs. 

The volume of beneficial use requests, including those involving CCRs, in the 

Commonwealth of Virginia taken in conjunction with the variability of the requests, has 

created a situation where a “one size fits all” approach to beneficial use requests is not 

feasible. The one predominate beneficial use request in Virginia is for civil engineering 

purposes, though the process for reviewing beneficial use requests begins the same for 

each case. The entity requesting the beneficial use determination must prove that 1) the 

material is not hazardous based on RCRA definitions and supporting analytical 

laboratory data (typically TCLP tests); 2) that the intended beneficial use is not a veil for 

disposal; and 3) that the beneficial use is a viable option for the material. If the 

beneficial use request passes these criteria, Virginia DEQ regulatory staff then examine 

the specific intended beneficial use and develops additional criteria and use restrictions 

to ensure reasonable human and environmental protection. For beneficial uses of CCRs 
Attachment A

Page 11 of 21 

in a manner that is not provided under the Virginia Solid Waste Management 

Regulations, Virginia developed the Coal Combustion By-Product Regulations which 

standardized the necessary process and information needed for the use, reuse, or 

reclamation of CCRs. As noted previously, Virginia DEQ is currently undertaking a 

rulemaking process to amend these regulations in order to provide further environmental 

protections for the beneficial use of CCRs. 

Given the above approach for evaluating and approving beneficial use requests, the state 

would be hesitant to create a more regimented protocol that would not allow each 

beneficial use request to be evaluated on its own set of unique circumstances. 

Additionally, CCR beneficial use requests are not required for “typical” applications, i.e. 

use of fly ash as a concrete admixture or use of bottom ash as sandblasting media. 

Forcing such approvals into a situation where staff must review each and every request, 

even for uses that have been considered standard by industry groups such as ASTM or 

ASCE, would cause undue burden to state regulatory staff already taxed by declining 

state budgets and workforce reductions and would fail to provide more protection to 

human health and the environment.

• Whether certain uses of CCRs (e.g., uses involving unencapsulated uses of CCRs) 

warrant tighter control and why such tighter control is necessary. 

Virginia DEQ welcomes any guidance from EPA to be used as a tool to enhance our 

rules and regulations. As previously discussed, Virginia DEQ initiated a rulemaking 

process to amend our regulations regarding the use of unencapsulated CCRs, such as 

when used in general fill construction projects. This rulemaking was undertaken in an 

effort to further ensure our regulatory requirements provided further protection of human 

health and the environment for CCR beneficial use projects allowed under the regulation. 

These revised/additional requirements were listed in the previous section. As part of this 

effort, Virginia DEQ is considering implementing a more risk-based approach to 

regulating CCR in Virginia. This approach would be dependent on a site specific risk 

assessment based on site specific conditions that take into account the composition of 

CCRs, their leaching potential, geologic and hydrogeologic environment, volume, rate of 

application, the amount of CCR used at a site as fill material and the composition of 

CCRs. Under this risk-based approach, larger sites would be subject to more 

requirements, such as groundwater monitoring. 

• If EPA determines that regulations are needed for the beneficial use of CCRs, should 

EPA consider removing the Bevill exemption for such uses and regulate these uses 

under RCRA subtitle C, develop regulations under RCRA subtitle D or some other 

statutory authority, such as under the Toxic Substances Control Act? 

Virginia DEQ does not believe that specific regulations regarding the beneficial use of 

CCRs. Many states have rigorous beneficial use programs which require review and 

approval. Therefore, Virginia DEQ recommends that beneficial uses of CCRs not be 

removed from the Bevill exemption. Virginia DEQ continues to support the Bevill 

exemption for all CCRs, whether managed as solid waste or beneficially used. CCRs are 

successfully beneficially used and those uses need to be supported. If further 

requirements are necessary for specific beneficial uses, then those should be addressed 
Attachment A

Page 12 of 21 

through guidance by EPA, not regulatory action under RCRA Subtitle C or D, or other 

statutory authority. CCRs are a solid waste and each state should determine how to best 

manage these solid waste within their state borders. Virginia DEQ's solid waste 

management program has successfully done so over the years and opposes any changes 

to the status of CCRs destined for beneficial use. 

As noted, Virginia DEQ recommends that guidance be developed and it would be helpful 

to ensure that CCRs are managed and used in an environmentally sound manner and 

Virginia DEQ urges EPA to work through organizations such as ASTSWMO to assist in 

the development of guidance. 

• Whether it is necessary to define beneficial use better or develop detailed guidance on 

the beneficial use of CCRs to ensure protection of human health and the environment, 

including whether certain unencapsulated beneficial uses should be prohibited.

Virginia DEQ opposes any prohibition of unencapsulated use of CCRs, as long as they 

can be proven to be genuine beneficial uses and not a veil for disposal. Broadly 

restricting a category of potential beneficial use based on a few incidences of 

mismanagement goes against the ideas of innovation credited to waste reduction 

initiatives put in place by many states. Such prohibitions of usage should be left to each 

state, where factors such as precipitation, soil chemistry, and CCR composition can be 

evaluated by regulatory staff knowledgeable of those factors. 

• Whether the Agency should promulgate standards allowing uses on the land, on a site 

specific basis, based on site specific risk assessments, taking into consideration the 

composition of CCRs, their leaching potential under the range of conditions under 

which the CCRs would be managed, and the context in which CCRs would be 

applied, such as location, volume, rate of application, and proximity to water. 

Virginia DEQ supports any scientifically based standard that will be developed for the 

beneficial use program for the factors listed above to be used as a tool, not a regulatory 

mandate, to further ensure protection of human health and the environment. 

• If materials characterization is required, what type of characterization is most 

appropriate? If the CCRs exceed the toxicity characteristic at pH levels different from 

the TCLP, should they be excluded from beneficial use? When are totals levels 

relevant? 

The determination of what material characterization is most appropriate cannot be 

arbitrarily assigned. The circumstances of the intended beneficial use should dictate the 

proper characterization. For example, if a particular CCR was going to be used in 

conjunction with spent lime from municipal water treatment to stabilize a TCLP type soil 

in order to make it a non-hazardous waste then the TCLP test is an appropriate test. 

However, if our purpose is to limit and minimize risk to the human then TCLP is not the 

appropriate test and total concentration becomes relevant since the risk calculations are 

based on total concentration. The testing should be determined by the beneficial use 

proposed so that appropriate analysis can be utilized. 
Attachment A

Page 13 of 21 

• Whether EPA should fully develop a leaching assessment tool in combination with 

the Draft SW-846 leaching test methods described in Section I. F. 2 and other tools 

(e.g., USEPA’s Industrial Waste Management Evaluation Model (IWEM)) to aid 

prospective beneficial users in calculating potential release rates over a specified 

period of time for a range of management scenarios. 

Virginia DEQ welcomes any guidance from EPA to be used as a tool to advance our 

regulations and guidance for the benefit of public health and the environment. The 

guidance would be a useful tool in evaluating the potential fate and transport of 

contaminants. If guidance is issued, its use should not be mandated by federal 

regulation. A leaching assessment tool would be of a great assistance to beneficial use 

programs. 

• Historically, EPA has proposed or imposed conditions on other types of hazardous 

wastes used in a manner constituting disposal (e.g., maximum application rates and 

risk-based concentration limits for cement kiln dust used as a liming agent in 

agricultural applications (see 64 FR 45639; August 20, 1999); maximum allowable 

total concentrations for nonnutritive and toxic metals in zinc fertilizers produced from 

recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Should 

EPA should establish standards, such as maximum/minimum thresholds, or rely on 

implementing states to impose CCR site-specific limits based on front-end 

characterization that ensures individual beneficial uses remain protective? 

Virginia DEQ believes EPA should perform additional research and base its finding only 

on sound science and provide guidance to states to develop CCR site-specific limitations 

for any proposed beneficial use project. 

• Whether there are incentives that could be provided that would increase the amount 

of CCRs that are beneficially used and comment on specific incentives that EPA 

could adopt that would further encourage the beneficial use of CCRs.

EPA's support of the beneficial use of CCRs is essential to the program's success. As 

EPA's resources eclipse that of a state's, EPA must take a mentoring role in supporting 

state efforts and providing guidance and tools necessary to carry out successful 

beneficial use programs for CCRs and other waste materials. Incentives can include 

recognition of innovations and allowing states to request funding for beneficial use 

programs, including pilot studies, through their cooperative agreements.

Stigma

The best approach to handle the stigma which may complicate CCR beneficial use is for 

CCRs not to be regulated as a hazardous waste under the authorities of RCRA Subtitle C. 

As discussed previously, there is no benefit to regulating CCRs as a "special" hazardous 

waste and, doing so will only cause viable and beneficial uses of this material to meet 

with unnecessary stigma with respect to public perception. 
Attachment A

Page 14 of 21 

Today’s Co-proposed Regulations

General

• Some commenters have suggested that EPA not promulgate any standards, whether 

they be RCRA subtitle C or D, but continue to rely on the states to regulate CCRs 

under their existing or new state authorities. The Agency solicits comment on such an 

approach, including how such an approach would be protective of human health and 

the environment. 

Failure of the surface impoundment in December 2008 at TVA’s Kingston Fossil Plant in 

Harriman, Tennessee appears to be a driving factor in EPA deciding to regulate CCRs. 

EPA's response has been to develop two proposals which both provide broad regulation 

of CCRs in surface impoundments and landfills. 

Virginia DEQ has consistently opposed any regulation of CCRs as a hazardous waste, 

even as a "special" hazardous waste. In responding to the failure of the surface 

impoundment in TVA’s Kingston Fossil Plant in Harriman, Tennessee, EPA made the 

decision to send the CCR to a solid waste landfill, not a hazardous waste landfill. This 

decision supports the position that CCR is not a hazardous waste. It is noted that damage 

cases have been documented due to the failure of surface impoundments and, therefore, it 

only makes sense that surface impoundments should have regulatory requirements to 

protect human health and the environment from the potential failure of these 

impoundments. DEQ supports further regulation of wet storage of CCR and storage 

impoundments that manage CCR. However, the dry handling of CCRs in landfills is an 

area where the states have much more expertise then EPA. States regularly permit and 

ensure compliance of the landfills operating within their borders. It is the states that 

should be allowed to regulate these facilities under their authorities or under a similar 

EPA approved permit program as is currently used for MSW landfills. 

As part of our rulemaking process for amending our Coal Combustion Byproduct 

Regulations, the DEQ assembled an advisory panel of technical experts in the field of 

CCRs to review and provide options to strengthen Virginia's Coal Combustion Byproduct 

Regulations. The main driver noted was the issue of maintaining separation between 

CCRs and groundwater/surface water. This criteria was identified as an essential factor 

related to the risks associated with using CCRs as fill material. EPA should review the 

work that states have undertaken prior to determining if a regulatory approach is 

necessary. It is essential that any approach allow states flexibility to adopt regulations in 

their state to address specific criteria needed to protect their natural resources and their 

citizenry from any risks posed by the various types of CCR as well as the flexibility to 

tailor standards based on the type of CCR being used and the composition of the CCR. 

RCRA Subtitle C Regulations

Virginia DEQ is not providing any responses to the specific questions of this subsection 

as we do not support EPA's proposal to regulate CCRs under the authorities of RCRA 

Subtitle C. CCRs are not hazardous wastes and any proposal to regulate them as such is 

inconsistent with sound science and common sense. EPA is urged to fully consider the 

repercussions a RCRA Subtitle C regulation will present to not only the states, but to 
Attachment A

Page 15 of 21 

industry and to the people that rely on coal powered electricity. EPA can accomplish 

their desire to ensure protection of human health and the environment through other 

mechanisms, such as Subtitle D or guidance. These other options need to be utilized. 

EPA's concerns regarding their oversight ability should be addressed through the 

authorities of §7003 of RCRA or through other mechanisms including congressional 

action.

RCRA Subtitle D Regulations

• EPA broadly solicits comment on the approach of relying on certifications by 

independent registered professional hydrologists or engineers of the adequacy of 

actions taken at coal fired utilities to design and operate safe waste management 

systems. 

Virginia currently regulates professional geologists and professional engineers through 

the Department of Professional and Occupational Regulation (DPOR). These 

individuals are already providing Virginia DEQ with similar certifications which are 

required to be submitted under either Virginia's Solid Waste Management Regulations 

for solid waste management facilities, including landfills, or the Coal Combustion 

Byproduct Regulations for siting of projects. Independent registered professional 

engineers or hydrologists are a necessary component of a successful program and the 

duties of the two professionals should be clearly spelled out as these types of 

professionals are not interchangeable. 

• Additional information regarding the extent to which landfill capacity would be 

affected by applying the proposed subtitle D location restrictions to existing CCR 

landfills. 

Requiring CCRs to be placed in industrial landfills would greatly reduce the lifespan of 

permitted industrial landfills in Virginia. Virginia DEQ is unaware of the amount of 

CCRs that are generated within the state annually, mainly because of the successes of 

reuse and recycling programs that occur under provisions of beneficial use. Most recent 

estimates indicate that Virginia has available capacity at non-captive industrial landfills 

for approximately 13 million tons of industrial waste. In reality industrial landfills 

handle many types of waste streams and the remaining lifespan of these landfills would 

be significantly reduced if CCRs are required to be disposed at these facilities. There are 

currently only two permitted non-captive industrial landfills in Virginia and Virginia

DEQ is unable to estimate if these two facilities would be capable of managing the 

additional waste material if CCRs were required to be placed in these landfills. There 

would likely be an increase in the number of captive landfills operating in Virginia, 

which would require an increase in the resources needed to oversee these landfills 

because the standards CCR landfills would be required to meet under this proposal are 

similar to existing Municipal Solid Waste and Industrial landfill standards. 

• Whether the subtitle D option, if promulgated, should allow facilities to use 

alternative designs for new disposal units, so long as the owner or operator of a unit 

could obtain certification from an independent registered professional engineer or 

hydrologist that the alternative design would ensure that the appropriate concentration 

values for a set of constituents typical of CCRs will not be exceeded in the uppermost 
Attachment A

Page 16 of 21 

aquifer at the relevant point of compliance (i.e., 150 meters from the unit boundary 

down gradient from the unit, or the property boundary if the point of compliance is 

beyond the property boundary).

Virginia DEQ concurs that the Subtitle D option must provide flexibility in the design of 

new disposal units and provide performance standards to be met, such as the one noted 

in this comment. This is the only way to accommodate changes in technology which occur 

faster than EPA modifies their regulations.

• Whether there could be homeland security implications with the requirement to post 

information on an internet site and whether posting certain information on the internet 

may duplicate information that is already available to the public through the state. 

If states were required to adopt regulations under the Subtitle D option, Virginia DEQ

would likely adopt standards similar to those in place for municipal solid waste landfills 

and industrial waste landfills. This would include the issuance of a permit to a CCR

landfill. The information reviewed by Virginia DEQ prior to issuing a permit would be 

information that would be available to the public from DEQ. Requiring a facility to post 

information on a website would duplicate information already available to the public 

from DEQ. Virginia statute contains provisions that protect trade secret information from 

being released to the public. 

• Whether the subtitle “D prime” option is protective of human health and the 

environment. 

The "D prime" option allows surface impoundments to continue to operate for their 

useful life without requiring them to install composite liners. Virginia DEQ is concerned 

about allowing unlined surface impoundments to continue to operate without an 

established closure date. When the Subtitle D regulations were issued by EPA, not all 

landfills in Virginia were equipped with liners. In 1993, state statutes were amended to 

allow landfills to continue to operate until their vertical design capacity was reached and 

required landfills to submit an estimated date of closure which was not enforceable by 

the state. After many years of the continued operation of these unlined landfills, some of 

these landfills were anticipating continuing operation for decades instead of their 

previously estimated closure date. The state statute was subsequently amended in 2000 

to establish a process for assigning closure dates to these unlined landfills. Unlined 

landfills were prioritized for closure based on potential threat to human health and the 

environment, and required to close in 2007, 2012, or 2020. Virginia DEQ's previous 

experience with allowing unlined landfills to continue operation until vertical capacity 

was reached causes the state to have concerns with the "D prime" option. EPA's proposal 

indicates 75% of surface impoundments are greater than 25 years old, with 10% being 

greater than 50 years. Allowing unlined surface impoundments to continue operation 

indefinitely does not provide protection to human health and the environment. 

• EPA is proposing that existing CCR landfills and surface impoundments that cannot 

make a showing that a CCR landfill or surface impoundment can be operated safely 

in a floodplain or unstable area must close within five years after the effective date of 

the rule. EPA solicits comment on the appropriate amount of time necessary to meet 
Attachment A

Page 17 of 21 

this requirement, as well as measures that could help to address the potential for 

inadequate disposal capacity. 

Five years is the minimum amount of time for Virginia DEQ to implement the rulemaking 

process to amend our regulations, receive permit applications, review permit 

applications for new CCR landfills that meet the standards of the Subtitle D proposal, 

and issue permits for these landfills. EPA would have to commit staff to approve the CCR 

permit program, however, if the MSW program is to be utilized as a model. Approvals of 

state permit programs would need to be completed within 18 months after the effective 

date of the rule so that adequate time can be allowed for the permit application process.

With respect to the Subtitle C option, however, five years is insufficient time for the state 

to initiate a rulemaking process, submit an authorization package, gain approval for a 

Subtitle C delegation of the program, and review permit application and issue permits for 

landfills meeting hazardous waste standards. The timeline is further complicated as our 

statutory law prohibits issuance of any off site hazardous waste facility permit without 

first securing a certificate of siting which is a very complex process and could potentially 

take years to secure the certificate. 

Surface Impoundment Closeout

• Whether the Agency should provide for a variance process allowing some surface 

impoundments that manage wet-handled CCRs to remain in operation because they 

present minimal risk to groundwater (e.g., because they have a composite liner) and 

minimal risk of a catastrophic release (e.g., as indicated by a low or less than low 

potential hazard rating under the Federal Guidelines for Dam Safety established by 

the Federal Emergency Management Agency).

This approach is reasonable for low risk surface impoundments and should be allowed 

under the proposals.

Financial Assurance

• EPA broadly solicits comments on whether financial assurance should be a key 

program element under a subtitle D approach, if the decision is made to promulgate 

regulations under RCRA subtitle D. 

Virginia DEQ has had financial assurance requirements in effect since 1988 for all solid 

waste landfills, including industrial landfills. The financial assurance requirements 

address closure, post-closure care, groundwater monitoring, and corrective action. Due 

to the similarity of the proposed CCR landfills to municipal solid waste and industrial 

landfills, financial assurance provisions should be adopted if the Subtitle D approach is 

undertaken. Failure to adopt financial assurance requirements would not be in the best 

interests of the states. If a facility was abandoned then states could become liable for the 

costs of closure, post-closure, and/or corrective action.

State Programs

• Detailed information on current and past individual state regulatory and nonregulatory approaches taken to ensure the safe management of CCRs, not only under 

state waste authorities, but under other authorities as well, including the 

implementation of those approaches. 
Attachment A

Page 18 of 21 

Please refer to the "Summary of CCR Management in Virginia" section of this 

attachment (see next section).

• The potential of federal regulations to cause disruption to states’ implementation 

of CCR regulatory programs under their own authorities, including more specifics on 

the potential for procedural difficulties for state programs, and measures that EPA 

might adopt to try to mitigate these effects. 

Subtitle C option: Due to Virginia's rulemaking process, it is our experience that it may 

take two years to amend our hazardous waste regulations and even longer to receive 

EPA authorization to implement these rules in lieu of EPA's implementation of the 

program. Previously, it took EPA approximately 16 years to authorize Virginia DEQ’s 

Hazardous Waste Corrective Action program. EPA’s estimate of one to two years for 

states to adopt the rule and receive authorization for its implementation is unrealistic. 

This delay in authorization approvals is an issue that has plagued EPA in the past, and 

as EPA will be working to authorize a large number of different state programs 

concurrently, it is likely that this will be a very slow process for program authorization. 

Until the regulations are amended and federal authorization is obtained, Virginia DEQ

will be unable to implement a Subtitle C CCR regulatory program. Funding for this 

new/expanded program will also be a barrier to implementing this program. Therefore, 

funding support and additional time will be needed to implement this program.

Subtitle D option: Under the Subtitle D proposal, the minimum federal criteria would 

take effect within 180 days after promulgation of the final rule. Virginia DEQ would 

likely need to undertake a rulemaking to revise our regulations for CCR landfill 

requirements and surface impoundments to be consistent with EPA's promulgated 

regulatory requirements. While EPA's minimum Subtitle D standards include many selfregulating provisions, Virginia DEQ would likely implement and oversee these facilities 

directly through regulation as we do for the municipal solid waste landfill provisions 

under 40 CFR 258. In general, the full regulatory process in Virginia takes almost two 

years to complete and, therefore, Virginia DEQ would need additional time to 

incorporate these requirements into current regulations before a CCR program could be 

implemented. Funding for this expanded CCR program will also be a barrier to 

implementation, as Virginia DEQ has had numerous budget cuts in the last few years. 

Federal funding for this program and more time to allow the states to undertake 

regulatory action and to implement the program will be necessary. 

Damage Cases

• The report of additional damage cases submitted to EPA on February 24, 2010 by the 

Environmental Integrity Project and EarthJustice. 

While there were no Virginia sites listed in the February 2010 report, two Virginia sites 

were discussed in the report, In Harm's Way (August 2010). This report discussed 

historical releases from storage ponds into adjacent rivers from the American Electric 

Power's Clinch River Plant (1967) and the Glen Lyn plant (1970's and early 1980's). It 

should be noted that these are not recent cases and are legacy issues which are not an 

accurate picture of Virginia's current regulatory programs.
Attachment A

Page 19 of 21 

Summary of CCR Management in Virginia

 

Virginia DEQ has undertaken numerous steps over the years to protect human health and 

the environment from Coal Combustion Residuals (CCRs). Virginia DEQ regulates 

CCRs as an industrial solid waste under two separate regulations; the Virginia Solid 

Waste Management Regulations, 9 VAC 20-80, for management of non-hazardous solid 

wastes and the Coal Combustion Byproduct Regulations, 9 VAC 20-85, for the beneficial 

use of coal combustion byproducts. Both our municipal solid waste landfills and 

industrial landfills may be permitted to dispose of CCRs; however, most CCRs which are 

disposed of are managed by captive industrial landfills. Both of these types of landfills 

have liners and leachate collection systems, and groundwater monitoring is conducted at 

these facilities. Additionally, CCRs may also be beneficially used in products or as 

structural fill material if certain standards are met for conditional exemptions. In 

accordance with the requirements of the Coal Combustion Byproduct Regulations, CCRs 

may also be used, reused, or reclaimed in a manner not addressed under the Virginia 

Solid Waste Management Regulations. 

The Virginia Waste Management Board adopted the existing industrial waste landfill 

regulations in 1988 and since then, there has never been an incident where an 

environmental release, from any of the landfills designed and constructed in accordance 

with these regulations has adversely impacted the environment. It is clear from this that 

any increase in regulation, such as the proposal under RCRA Subtitle C, will not yield 

any significant environmental benefit. We believe human health and the environment 

have been adequately protected by the solid waste laws and regulations that are presently 

in place in Virginia for the management of industrial wastes like CCRs.

In Virginia, a company applying for a permit to operate an industrial solid waste landfill 

must provide the Virginia DEQ with comprehensive engineered design plans, site 

geological and hydrogeologic information, a groundwater monitoring plan, a 

demonstration of financial assurance for closure and post-closure care, an operating plan, 

and other required permit application documents. Additionally, the third party 

construction quality assurance must be submitted with quality assurance and quality 

control documents that ensure the units have been constructed in accordance with 

approved engineering plans. Our permitting process also includes a public participation 

process consisting of a comment period and a public hearing as needed or when 

requested. 

In addition to the high degree of regulatory requirements and oversight by our solid waste 

permitting program, DEQ also routinely inspects solid waste management facilities. 

DEQ's routine inspection frequency for solid waste landfills is quarterly. During 

inspections, waste management practices are evaluated with respect to applicable 

regulations and permit conditions and the integrity of the containment systems is visually 

examined. On an as needed basis, DEQ’s solid waste permit engineers also visit these 

facilities to assess compliance related to design, construction, operations, and monitoring.
Attachment A

Page 20 of 21 

Historical information shows that Virginia has had no known cases of proven 

environmental damage from any permitted industrial landfills managing CCRs. Virginia's 

regulatory process for management of CCR in landfills is comprehensive and provides 

adequate protection of human health and environment. The regulatory requirements will 

continue to require sound engineering design, construction quality assurance, operations, 

groundwater quality monitoring, engineered closure, post-closure care, and financial 

assurance to cover cost of closure, post-closure care, and corrective action for these 

facilities. 

In Virginia, CCRs may also be used, reused, or reclaimed in a manner not addressed 

under Virginia’s solid waste regulations when such use, reuse or reclamation is 

performed in accordance with the requirements of the Coal Combustion Byproduct 

Regulations. Administrative procedures are provided for the submission of appropriate 

documentation and professional engineering certification for the use of CCRs in this 

manner. This regulation establishes appropriate standards for siting, design, construction, 

operation, and closure of projects using CCR. If CCR is to be used beneficially as a fill 

material in Virginia, the following information must be provided to be reviewed by 

agency staff:

• A certification that the owner or operator has legal control over the site for the 

project life and the closure period; 

• A certification from the governing body of the county, city, or town in which the 

site is to be located that the location and operation of the site are consistent with 

all applicable ordinances; 

• A general description of the intended use, reuse, or reclamation of CCR that 

includes the following:

o A description of the nature, purpose and location of the CCR site, 

including a topographic map showing the site area and available soils, and 

geological maps. The description shall include an explanation of how 

CCR will be stored prior to use, reuse or reclamation, if applicable; 

o The estimated beginning and ending dates for the operation; 

o An estimate of the volume of the CCR to be utilized; and 

o A description of the proposed type of CCR to be used reused or reclaimed, 

including physical and chemical characteristics of the CCR. 

• A certification by a professional engineer licensed to practice by the 

Commonwealth that the project meets the location restrictions and setback 

requirements of the regulations; 

• A certificate signed by a professional engineer licensed to practice by the 

Commonwealth that the project has been designed in accordance with the 

standards of the regulations; 

• An operational plan;

• A closure plan; and 

• A signed statement that the owner or operator shall allow authorized 

representatives of the Commonwealth, upon presentation of appropriate 

credentials, to have access to areas in which the activities covered by this chapter 

will be, are being, or have been conducted to ensure compliance. 
Attachment A

Page 21 of 21 

Staff review the information submitted to ensure that the established regulatory standards 

are being met. Since Virginia originally adopted the Coal Combustion Byproduct 

Regulations in 1995, approximately 5.5 million cubic yards of CCRs have been used 

beneficially as fill material under these regulations. 

The beneficial reuse of CCRs as fill material for construction of the Battlefield Golf Club 

was identified by EPA as a concern in many sections of its proposal. Virginia DEQ does 

not consider EPA’s discussion to be a fair representation of this issue and requests that 

EPA refer to its own update on this site (see April 2010 Battlefield Golf Club Community 

Update). The results stated in this update are: 

• EPA's review of the data indicates that metals are not migrating from the fly ash 

on the golf course to the residential drinking water wells.

• Metals contaminants were below EPA drinking water standards in all residential 

wells that EPA tested, except for lead. Lead has been detected above the drinking 

water standard in several residential wells, but the lead does not appear to be from 

the fly ash.

• EPA concludes that people can use the golf course without concern. The metal 

concentrations in the surface water and sediments on the golf course are below 

standards set for drinking water and soil.

• Based on the data EPA reviewed, there is no current evidence that there is a threat 

to the public or the environment from the fly ash at the golf course. At this time 

EPA has no further plan to pursue listing this site on the NPL.

As EPA's own conclusions do not indicate harm from this site, Virginia DEQ respectfully 

disagrees with EPA's presentation of this issue in the proposal and requests that the 

situation of the Battlefield Golf Club not be used to mistakenly assume problems with 

Virginia's CCR management program when in fact EPA's own data and conclusions do 

not support that assumption. Virginia DEQ is very proud of the success of its beneficial 

use program for CCRs and other solid wastes, and has worked diligently to ensure that 

success while protecting human health and the environment. 

Due to Virginia's comprehensive regulatory program for management of solid waste 

CCRs, EPA is urged to reconsider their proposal for regulation of CCRs. Our permit 

program for industrial landfills is analogous to our EPA approved MSW permit program; 

justifying why further constraints, such as those proposed by EPA, are unnecessary. 

Additionally, Virginia's beneficial use program has been recognized by the Green 

Highways Projects and others for its innovative ways in dealing with CCRs and other 

high volume waste streams. If pursued, EPA's proposal, especially the Subtitle C option, 

will only hamper Virginia DEQ's efforts as we strive to meet the challenges of resource 

recovery by reducing the amount of waste managed through use, reuse and recycling.