Regulatory Issues Pertaining to the Disposal of Coal Combustion Residuals May 15, 2018 David Paylor, Director Virginia Department of Environmental Quality

Overview 2015 EPA CCR Rule 2016 EPA Legal Settlement/Partial Vacatur WIIN Act Enactment Current EPA Rulemaking Solid Waste Permitting Process Current Status of Affected CCR Units

2015 EPA CCR Rule Background: The proposed EPA CCR Rule was published in the Federal Register on June 21, 2010 Two regulatory options were proposed – regulate CCR as non-hazardous (subtitle D of RCRA) or as a special waste (subtitle C of RCRA). EPA received over 450,000 comments, conducted eight public hearings and published three Notices of Data Availability (NODAs). EPA finalized rule to regulate as non-hazardous under subtitle D of RCRA and established national minimum criteria for CCR Units Effective Date of Rule was October 19, 2015 Rule was established as self-implementing by owners and operators The Rule was incorporated into the Virginia Solid Waste Management Regulations (VSWMR) effective January 27, 2016 Ensure that DEQ could ensure compliance with requirements Added to existing framework to address CCR Units

2015 EPA CCR Rule The Rule defined Coal Combustion Residuals (CCR): fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers The Rule identified two types of CCR Units: Landfills Surface Impoundments It created subcategories of CCR Units including: “Existing Surface Impoundment”: Received before and after October 19, 2015 “Inactive Surface Impoundments”: contain CCR and liquids but did not receive after October 19, 2015 “Existing Landfills”: Received before and after October 19, 2015

2015 EPA CCR Rule Location Restrictions Design Standards – Liners and Structural Integrity Operating Standards Fugitive Dust Control Run-on/Run-off/Hydrologic and Hydraulic Capacity Inspections Groundwater Monitoring and Corrective Action Closure and Post-Closure Care Recordkeeping, Notifications and Internet Posting Including closure plans, post-closure plans, and groundwater monitoring results

2015 EPA CCR Rule Groundwater Monitoring and Corrective Action Phased approach to monitoring (Detection and Assessment) Detection Monitoring conducted to determine if further assessment is needed using a shorter list of constituents If entered into assessment monitoring, exceedances over background or MCL trigger Corrective Action Completion includes demonstration of compliance with groundwater protection standards, source control, and removal of contaminated material from the environment. Originally extended only to “Existing Surface Impoundments” VSWMR extended groundwater requirements to all CCR Units regardless of status.

2015 EPA CCR Rule Closure Post-Closure Must be completed either by: Leaving the CCR in place and installing a final cover system or Removing the CCR (clean closure). CCR surface impoundments must complete closure within five years, with the possibility of five two-year extensions for units greater than 40 acres. One basis for extension can be necessity of local and state approvals Original provision incentivized “inactive impoundments” to close in three years by providing that they not be subject to other requirements This was later vacated by a later EPA settlement Post-Closure Requires continued monitoring, inspection, maintenance, and groundwater monitoring after closure completed CCR Units that close in place subject to 30 year minimum period

2015 EPA CCR Rule EPA Identified Beneficial Use Definition: CCR must: provide a functional benefit substitute for the use of a virgin material, conserving natural resources that would otherwise need to be attained through practices such as extraction; meet relevant product specifications, regulatory standards, or design standards when available, and when such standards are not available, CCR must not be used in excess quantities; and Unencapsulated use of CCR must also: have demonstration that environmental releases to ground water, surface water, soil, and air are comparable to or lower than those from analogous products or that releases will be below relevant regulatory and health-based benchmarks for human and ecological receptors where using greater than 12,400 tons.

2015 EPA CCR Rule EPA developed methodology for evaluating beneficial use to ensure appropriate reuse DEQ would apply same analysis under incorporation into Solid Waste Regulations EPA applied the methodology to recognize two beneficial uses for use in cement and wallboard

EPA CCR Rule Partial Vacatur EPA Settlement (June 2016) and Related Rulemaking: EPA settled some challenges to provisions in the 2015 EPA CCR Rule One Portion of Settlement lead to Vacatur of the “Inactive Surface Impoundments Early Closure Provision” Subjected “Inactive Surface Impoundments” to full requirements for “Existing Surface Impoundments” with a delayed compliance timeframe Effectively removed “incentivized” early-closure provision for “inactive surface impoundments” EPA Final Direct Rule for this provision became effective October 2016 Revision incorporated into Virginia Solid Waste Management Regulations in May 2017

Water Infrastructure for Improvements to the Nation (WIIN) Act WIIN Act became law December 16, 2016 and included provisions for a CCR permitting program States may, but are not required to, develop and submit a CCR permit (“or other system of prior approval”) program to EPA for approval. Once approved, the State permit program operates “in lieu of” the federal CCR rule The CCR rule applies to a CCR unit until a permit is in effect for that unit. In States that do not have an approved permit program, EPA must implement a permit program subject to funding EPA has received some proposed funding for this provision EPA has not identified how it will implement permitting program and in which states yet No states have completed the full process to be deemed to have a state permitting program Virginia will likely apply for permitting program approval in the future EPA may use its enforcement authorities under RCRA to enforce the CCR rule or permit provisions

Current EPA Rule-Making On March 15, 2018, EPA published proposed significant revisions to 2015 EPA CCR Rule A Portion of the revision is in response to 2016 Legal Settlement: Clarifies the type and magnitude of non-groundwater releases that would require a facility to comply with some or all of the corrective action procedures Full groundwater corrective action not required where the release can be addressed within 180 days Adds boron to the list of constituents in Appendix IV of 40 CFR part 257 that trigger corrective action Determines the requirement for proper height of woody and grassy vegetation for slope protection Extending the limited allowance, where no other disposal capacity available, to manage non-CCR waste in a CCR unit that would otherwise be required to close.

Current EPA Rule-Making The State Director or EPA under permitting program may: establish alternative risk-based groundwater protection standards for constituents for which Maximum Contaminant Levels (MCLs) have not been established determine that remediation of a release of an Appendix IV constituent is not necessary under certain conditions determine that groundwater monitoring requirements under §§ 257.91-257.95 may be suspended if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and post-closure care specify an alternative length of time to demonstrate that remedies are complete may modify the length of the post-closure care period may decide to certify that the regulatory criteria have been met in lieu of the exclusive reliance on a qualified professional engineer

Current EPA Rule-Making EPA requested comment on allowing owners/operators to make same determinations independently of a permitting program in place EPA requested comment on additional potential changes such as timing of technical requirements Comment period ended April 30, 2018 Virginia submitted comments requesting no reduction in protectiveness of current standards

Permitting Process De-watering of CCR Units subject to Virginia Pollutant Discharge Elimination System (VPDES) Permit requirements Necessary step regardless of the closure method Closure of CCR Units subject to Solid Waste Permit for closure, post-closure, and groundwater monitoring Solid Waste Regulations apply additional technical requirements such as additional groundwater monitoring constituents Administrative and Technical Review of Submittals by DEQ Staff Public Participation Prior to Final Decision 45 day minimum public comment period Public Hearing

Status of Affected CCR Units Bremo Bluff Power Station Water discharge permit reissued in January 2016 and addressed dewatering requirements and limits The North Pond is an “Existing Surface Impoundment” (still receiving CCR through consolidation) while the East and West Ponds are “Inactive Surface Impoundments.” East and West Ponds were proposed to be closed by removal with consolidation into North Pond Most consolidation from East Pond has been completed West Pond currently being consolidated North Pond has been proposed to be capped in place Consistent with Senate Bill 1398 (2017) and 807 (2018), DEQ suspended technical review of closure submittals No final action has been approved for closure

Status of Affected CCR Units Chesterfield Power Station Water discharge permit reissued in September 2016 and addressed dewatering requirements and limits Both the Lower and Upper Ponds are “Existing Surface Impoundments” CCR generated at the Power Station now goes into newly built landfill Both the Lower and Upper Ponds have been proposed to be capped in place Permitting Submittals have only been received for Upper Pond Consistent with Senate Bill 1398 (2017) and 807 (2018), DEQ suspended technical review of closure submittals No final action has been approved for closure

Status of Affected CCR Units Possum Point Water discharge permit modification issued in January 2016 and addressed dewatering requirements and limits Pond D is an “Existing Surface Impoundment” while Ponds A,B,C and E are “Inactive Surface Impoundments.” Ponds A,B,C and E were proposed to be closed by removal with consolidation into Pond D Most consolidation has been completed Pond D was proposed to be capped in place Proposed Draft Permit was Public Noticed in January 2017 for all CCR Units Consistent with Senate Bill 1398 (2017) and 807 (2018), Dominion requested suspension of the proposed permitting action No final action has been approved for closure

Status of Affected CCR Units Chesapeake Energy Center Landfill Landfill has been regulated under Solid Waste Permit Landfill ceased receipt of CCR prior to EPA Rule deadline and is not subject to EPA Rule but subject to Solid Waste Regulations Bottom Ash Pond The pond is an “Inactive Impoundment” and subject to EPA Rule Closure was being addressed through modification of VPDES Permit and Solid Waste Permit Solid Waste Permitting Action for landfill was suspended in June 2016 with new submittals to be provided VPDES Permitting Modification was withdrawn in June 2016 Some portion of Bottom Ash Pond has been removed for off-site beneficial use Consistent with Senate Bill 1398 (2017) and 807 (2018), no final action has been approved for closure of either CCR Unit