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Virginia's Coal Ash Permit Program Is Final, and Your VADEQ Permit Is Not a Federal Shield
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Virginia's Coal Ash Permit Program Is Final, and Your VADEQ Permit Is Not a Federal Shield

EPA approved Virginia's partial coal ash permit program effective November 21, 2026. Permits issued before that date carry no RCRA 4005(d) federal shield.

by iSi Environmental

EPA gave final approval to Virginia’s coal combustion residuals permit program on October 20, 2026, and the approval takes effect November 21, 2026. Most trade coverage will stop there. The part that changes a Virginia plant manager’s exposure sits deeper in the notice: Virginia excluded every CCR permit it had already issued from the scope of its program application. Those permits carry no federal permit shield under RCRA sections 4005(d)(3) and (d)(6). If you hold a VADEQ coal ash permit on November 21, your units stay directly subject to 40 CFR part 257 until a major modification reopens the entire permit under the approved program.

Correction to this post: the codified closure deadline is October 17, 2028

The May 2026 version of this post stated four times that unlined CCR surface impoundments larger than 40 acres must complete closure by October 17, 2031, and called that date locked in. That was wrong. A Virginia utility that built a closure schedule off it would sit three years behind the regulation that binds it.

The codified deadline is October 17, 2028. 40 CFR 257.103(f)(2)(v)(B) requires the coal-fired boilers to cease operation and the impoundment to complete closure no later than that date. The section’s source credit ends at 85 FR 72542, November 12, 2020, and it has not been amended since.

October 17, 2031 exists only as a proposal. EPA proposed extending that one deadline by three years at 90 FR 54611, November 28, 2025, docket EPA-HQ-OLEM-2025-2864. Comment closed January 7, 2026 and no final rule has published. The May version of this post cited that proposal as the governing rule.

Does my existing VADEQ coal ash permit shield me from federal CCR enforcement?

No. Virginia excluded previously-issued permits from its program application, so those permits will not provide facilities with the federal permit shield in RCRA sections 4005(d)(3) and (d)(6). The shield attaches only after a major modification completes under the approved program, including public notice and comment on the entirety of the permit, per 42 U.S.C. 6945(d)(6)(A).

The default in the meantime comes from RCRA 4005(d)(3)(A). Without a permit issued under an approved state program, a facility complies with the federal CCR regulations directly. EPA restates the point at the end of the final approval notice:

For all CCR units in the State, the Federal regulations at 40 CFR part 257 will remain in effect until such time that VADEQ permits those units under its approved CCR permit program after providing an opportunity to comment on the entire permit consistent with the process required for new permits.

Holding a current VADEQ CCR permit on November 21, 2026 does not move your unit out of direct federal enforcement. The federal criteria stay independently enforceable against the facility until the full permit reopens.

The path to the shield carries its own cost. Because the reopening requires comment on the entirety of each CCR permit, it is a full public re-litigation rather than a narrow amendment, and the groups that filed against the program approval get that bite. Weigh the shield against the exposure of reopening every condition.

When must an unlined coal ash impoundment larger than 40 acres close?

October 17, 2028, per 40 CFR 257.103(f)(2)(v)(B), which also requires the coal-fired boilers to cease operation. EPA proposed extending that date to October 17, 2031 at 90 FR 54611 on November 28, 2025, with comments closed January 7, 2026, but no final rule has published. Plan against 2028.

Virginia’s approval does not touch the date. A state program cannot extend a federal closure deadline, and EPA’s pending proposal is the only instrument in play. If it finalizes, you gain three years. If it does not, a facility that planned for 2031 has a cease-operation and complete-closure obligation already behind it.

Virginia’s closure overlays apply on top. Units in the Chesapeake Bay watershed and in Giles and Russell Counties carry sequencing constraints under Va. Code 10.1-1402.03 that affect cost and schedule without moving the federal date.

Is Virginia’s CCR permit program final, and when does it take effect?

Yes. EPA announced final approval October 20, 2026, and the Federal Register notice publishes October 22, 2026 as FR Doc 2026-21622, docket EPA-HQ-OLEM-2025-3325, FRL-12983-02-OLEM. The approval takes effect 30 days after publication, November 21, 2026. EPA acted under RCRA sections 4005(d) and 7004(b)(1), 42 U.S.C. 6945(d) and 6974(b)(1).

EPA’s authority traces to section 2301 of the 2016 WIIN Act. The proposal ran at 91 FR 23924 on May 4, 2026 with a 60-day comment period and a June 24, 2026 hearing. EPA received 14 written comments, none at the hearing, and approved over the objections in them.

What does a partial CCR program approval actually mean for my facility?

Only the Virginia requirements EPA approved operate in lieu of their federal counterparts. Everything else stays federally enforceable against the facility directly. EPA’s language is that owners and operators of CCR units in Virginia remain responsible for compliance with all applicable requirements in 40 CFR part 257 for which Virginia did not seek approval. You comply with both regimes.

EPA approved only those aspects of Virginia’s CCR program that were submitted for approval. Build the two-column matrix, state on one side and federal on the other, and keep it current as EPA amends subpart D.

Which federal CCR provisions did EPA refuse to approve for Virginia?

Three that VADEQ requested. 40 CFR 257.73(a)(4) and 257.73(d)(1)(iv) and 257.74(a)(4) and 257.74(d)(1)(iv) on vegetative cover for slope stability; 40 CFR 257.90(g) on suspension of groundwater monitoring; and 40 CFR 257.95(h)(2) on groundwater protection standards for appendix IV constituents lacking a Maximum Contaminant Level.

EPA’s reason for the third one matters most. The agency said the federal provision was challenged in court and is under reconsideration, and that it is therefore not able to approve the provision. The notice does not name the case and no primary source located for this update names it, so the status is challenged and under reconsideration, nothing more specific.

The groundwater framing in the earlier version of this post was too broad. Virginia did get approval for its version of 40 CFR 257.90(a), so routine detection and assessment monitoring applicability runs through the state program. The carve-out is narrow: suspension of monitoring under 257.90(g), and the appendix IV protection standards at 257.95(h)(2). Put those two on the federal side of your matrix by section number, not under a general heading about groundwater.

What federal regulatory version is Virginia’s program frozen at?

40 CFR part 257, subpart D as amended through December 14, 2020. Virginia’s CCR regulations at 9VAC20-81-800 mirror that baseline. VADEQ did not adopt the May 8, 2024 Legacy CCR and CCR management unit rule (89 FR 38950) or the February 10, 2026 CCR Management Unit Deadline Extension Rule (91 FR 5806), so it sought no approval for them.

Every federal amendment since that date widens a gap the facility manages on its own. EPA says it will implement those provisions under the federal CCR program until and unless Virginia submits a revised application and receives approval for them. The second-wave rulemaking this post predicted in May is now confirmed, with no date attached.

Do legacy coal ash surface impoundments fall under Virginia’s program or EPA’s?

EPA’s, entirely. Virginia adopted none of the 2024 legacy provisions, so 40 CFR 257.50(e), the legacy impoundment and inactive facility definitions at 257.53, 257.100(a)(2) and 257.100(f) through (j), 257.101(e) and (g), 257.102(e)(4)(vi) and (vii) and 257.102(f)(1)(ii) and the 257.105(k), 257.106(k) and 257.107(k) recordkeeping set all remain federal in Virginia.

A legacy CCR surface impoundment means CCR and liquids still in a unit at a facility that stopped producing electricity before October 19, 2015. If that describes a unit on your site, Virginia’s approval changes nothing about who holds the obligation. The clocks run on federal dates: groundwater monitoring and corrective action initiated by May 10, 2027, initial written closure and post-closure care plans by November 8, 2027, and closure initiated by May 8, 2028 under 40 CFR 257.101(e)(1). We covered the legacy impoundment regime and the 2026 amendments in detail in our breakdown of the 2026 coal ash rule changes, so this update does not restate them.

Who regulates CCR management units at a Virginia facility?

EPA. Virginia adopted no CCRMU provisions, so 40 CFR 257.50(d) and the CCRMU definitional set at 257.53, including CCR management unit, closed prior to October 19, 2015, critical infrastructure, inactive CCR landfill and regulated CCR unit, apply federally. Your Facility Evaluation Reports are federal filings on federal dates.

The CCRMU clocks stay federal too: groundwater monitoring compliance by February 10, 2031 under 40 CFR 257.90(b)(3), the initial annual groundwater monitoring and corrective action report by January 31, 2032 under 40 CFR 257.90(e), and closure initiated by February 9, 2032 under 40 CFR 257.101(f)(1).

The broader 2024 Legacy Rule set that stays federal for all Virginia units, by section: the broadened owner and operator definitions at 257.53, the 30-day fugitive dust control plan amendment trigger at 257.80(b)(6), the complete-removal and decontamination criteria at 257.102(c)(2), the drainage and stabilization closure standard at 257.102(d)(2), the closure time extensions at 257.102(f)(2)(ii)(C) and (D), the corrective action obligations at 257.104(a)(2), (c)(1) and (c)(3), deed notation removal at 257.104(g), the operating record date requirement at 257.105(a), the extended retention periods at 257.105(e), (f)(1) through (14), (f)(19), (g), (h) and (i), and the matching website requirements at 257.107(b), (e), (f), (g), (h) and (i).

When are the Facility Evaluation Reports due, and does Virginia’s approval move them?

No, it does not move them. FER Part 1 is due February 9, 2027 under 40 CFR 257.75(c)(1), with a qualified professional engineer certification. FER Part 2, which requires a physical facility evaluation and where necessary field sampling, is due February 8, 2028 under 40 CFR 257.75(d)(1). Both run to EPA regardless of state program status.

February 9, 2027 lands about 11 weeks after the state program takes effect. A facility treating November 21 as the start of a transition period has roughly a quarter to produce a PE-certified historical placement evaluation for a regulator the state program does not touch.

What is the penalty for a CCR violation in Virginia after state approval?

EPA may bring RCRA section 3008 actions where the state requests assistance or where it determines enforcement is likely necessary, per 42 U.S.C. 6945(d)(4), and retains section 3007 inspection authority. Under 40 CFR 19.4 Table 1, the ceiling under 42 U.S.C. 6928(g) is $93,058 per day per violation and the ceiling under 42 U.S.C. 6928(a)(3) is $124,426, for penalties assessed on or after January 8, 2025.

Both figures are statutory maximums adjusted for inflation, not observed settlements. No published EPA enforcement action against a Virginia CCR facility turned up in the record behind this update, and the approval notice names no penalty and no case. The numbers are the size of the exposure, not evidence of a Virginia enforcement trend.

Citizen suits are the other channel. Several of the 14 comments argued EPA should weigh VADEQ’s performance, leaning on the 2024 Alabama program denial at 89 FR 48774. EPA approved anyway. Those commenters are the most likely source of RCRA section 7002 suits, and of comments when a facility reopens a permit to chase the shield.

How many states have approved CCR permit programs, and is this the trend?

Six. Oklahoma (83 FR 30356, 2018), Georgia (85 FR 1269, 2020), Texas (86 FR 33892, 2021), North Dakota (90 FR 51168, 2025), Wyoming (91 FR 9459, 2026) and Virginia (2026). Four more are proposed: Louisiana (91 FR 34189), Alabama (91 FR 43054), Wisconsin (91 FR 57842) and Indiana (91 FR 58616). Alabama is the one denial on record (89 FR 48774). All of these appear in the Federal Register record for state CCR permit program actions.

The May version of this post said three states, omitting Georgia, North Dakota and Wyoming. That was wrong.

The structural point travels to iSi’s service region. Kansas, Missouri, Nebraska and Colorado have no approved program, so facilities there are permitted by EPA under the federal rule. Oklahoma is the exception and holds the oldest approval in the country; Texas has had one since 2021. Both built their programs against the federal rule as it stood in 2018 and 2021, which predates the 2024 Legacy Rule the same way Virginia’s December 2020 baseline does. A multi-state operator is managing at least three frozen state baselines plus the live federal rule.

Does state approval mean less federal oversight of Virginia coal ash?

Not on this record. EPA keeps the legacy impoundment and CCRMU regimes, the three withheld provisions, both FER deadlines, the closure deadlines and section 3007 inspection authority, and no pre-approval permit carries the federal shield. EPA must also review the program at least every 12 years under RCRA 4005(d)(1)(D), 42 U.S.C. 6945(d)(1)(D).

The honest counterweight is that EPA is loosening the federal half while Virginia takes administrative control of a frozen copy of it. The Legacy and CCRMU amendments proposal at 91 FR 18968, April 13, 2026, would exempt CCR dewatering structures, modify the legacy and CCRMU provisions, and open a site-specific compliance pathway for groundwater points of compliance, cleanup levels and closure timeframes, with comment extended to June 29, 2026 at 91 FR 35651. A deadline extension already finalized once at 91 FR 5806, and a second is pending on the biggest closure date with grid reliability as EPA’s stated rationale. The federal permit program Virginia facilities fall back on is itself unfinished, reopened at 91 FR 31684 and floated for general permit provisions at 91 FR 43051, which we unpacked in our post on the federal coal ash permit program. The adjacent water rule is being cut as well: the proposed ELG revision for unmanaged combustion residual leachate at 91 FR 28487 is estimated to reduce costs by $446 million to $1,090 million annually at a 3 percent discount rate.

None of that should make a facility complacent. The approval is final agency action effective November 21, 2026. The FER dates are codified today at 40 CFR 257.75 and nothing pending moves them. The October 17, 2028 closure date is codified and the 2031 extension is only proposed. Alabama’s denial proves EPA will refuse a program it finds inadequate. And the shield gap leaves Virginia facilities more exposed to direct federal enforcement than the phrase state approval suggests. Deregulatory momentum at the margins has not touched any of that.

Which Virginia facilities and units the program reaches

VADEQ identified 25 CCR units, 7 landfills and 18 surface impoundments, at 8 facilities. The docket record names the major stations, Possum Point, Chesterfield, Clinch River and Bremo Bluff among them. The population is utilities and independent power producers, plus inactive facilities still holding a legacy impoundment.

Work the qualification test in order. Own or operate a CCR landfill or surface impoundment in Virginia, and the program reaches you November 21, 2026. Hold a VADEQ CCR permit issued before that date, and you are in the shield gap. Hold a legacy impoundment, or historical CCR placement outside a regulated unit, and the obligation is federal. Ceased producing electricity or switched fuels after October 19, 2015 and still hold an inactive impoundment? 40 CFR 257.50(c) as amended reaches you regardless of how the facility now produces electricity, and Virginia did get approval for its version of that provision.

Two edges are worth naming. Subpart D has no small-facility threshold; the rule turns on unit type and timing, not company size. And beneficial use placement outside a disposal unit is not a CCR unit, though the definition at 40 CFR 257.53 carries its own trigger. Unencapsulated use involving placement on the land of 12,400 tons or more in non-roadway applications requires the user to demonstrate and keep records that environmental releases to groundwater, surface water, soil and air are comparable to or lower than analogous non-CCR products, or at or below relevant regulatory and health-based benchmarks. It is a demonstration and recordkeeping duty on the user, and Virginia’s approval does not relax it.

New and modified units run through Virginia’s permitting machinery under 9VAC20-81: Notice of Intent, Part A site suitability, Part B design and closure submittals, and a minimum 45-day comment period with a hearing at least 30 days after notice. That sits in front of federal deadlines that do not move for it.

What to do before November 21, 2026

  1. Inventory every unit against the four federal categories: regulated CCR unit, inactive CCR surface impoundment, legacy CCR surface impoundment, CCR management unit. The category decides which regulator holds the obligation, and mixed-category sites answer to both.
  2. Pull every CCR permit VADEQ issued before the effective date and mark each as outside the approved program. Decide deliberately whether to pursue the major modification that attaches the shield, knowing it reopens the entire permit to comment.
  3. Put the three withheld provisions on the federal side of the matrix by section number: 257.73(a)(4) and (d)(1)(iv), 257.74(a)(4) and (d)(1)(iv), 257.90(g), and 257.95(h)(2).
  4. Start FER Part 1 now. February 9, 2027 needs a PE certification and lands 11 weeks after the program takes effect.
  5. Rebuild any closure schedule keyed to October 17, 2031 against the codified October 17, 2028 date, and track 90 FR 54611 separately rather than planning against it.

Where iSi fits

The work in this post is matrix maintenance: two regulators, one frozen state baseline, a federal rule EPA keeps amending, and codified dates no pending proposal has moved. That is standing program work, and it is what iSi’s environmental compliance team does for facilities carrying split federal and state obligations. If you want a second set of eyes on which side of the line each unit sits, send the unit list and we will respond the same day.

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