Detailed Comments from th e State of Nebraska Regarding EPA Proposed Rule Hazardous and Solid Waste Management System; Identification and listing of Special Wastes; Disposal of Coal Combus tion Residuals from Electric Utilities Date of Comments: November 18, 2010

Docket ID No.: EPA-HQ-RCRA-2009-0640 Federal Register dated: June 21, 2010 Pages of document are 35128-35264

(Note: Format used in this attachment – Bold font is for excerpts from the Federal Register of EPA’s preamble and proposed rule. Where EPA requests similar in formation the excerpts are grouped.

Normal text that follows the bold font is Nebraska’s response/ comments/suggested language)

B. RCRA Section 8002(n), a. Existing State Regulatory Oversight p. 35152 Therefore, EPA solicits detailed comments specifically on the current management practices of state programs, not only under state waste authorities, but under other authorities as well. The adeq uacy of state regulation is one of the key issues before the Agency, as it w ill address some of the more significant questions remaining regarding the extent of the risks presented by the disposal of

CCRs. p. 35153 Accordingly, the Agency specificall y solicits information, whether from state regulatory authorities or from me mbers of the public, regarding details on the entire state regulatory structure, including the specific requirements that states have in place to regulate CCRs, and to provide oversight of these units.

C. Preliminary Bevill Conclusion s and Impact of Reconsideration p. 35157 Specifically, EPA intends to co nsider how state regulatory programs have, in practice, evaluated and imposed requirements to address: (1) Leachate collection; (2) groundwater mo nitoring; (3) whether a unit must be lined, and the type of liner needed; (4) the effectiven ess of existing management units as opposed to new management units; (5) whether the state requires routine analysis of CCRs; (6) whether financial responsibili ty requirements are in place for the management of CCRs; (7) the extent of permit requirements, including under what authorities these dispos al units are permitted, the types of controls that are included in permits, and the extent of oversight provided by the states, (8) whether state programs include criteria fo r siting new units; (9) the extent of requirements for corrective action, postclos ure monitoring and maintenance; (10) the state’s pattern of active enforce ment and public involvement; and (11)

whether or not these facilities have insurance against catastrophic failures. Directly related to the leve l of risk presented by im proper management of CCRs, EPA is also weighing the differing levels of Federal oversight and control, and the practical implementation challenges, associated with the level and type of regulation under RCRA subtitles C and D.State Program Authority

The State of Nebraska has a well established permitting and compliance program that has effectively managed CCR for seventeen years. The Nebraska Department of Environmental Quality (NDEQ) is the lead state agency that implements the permitting and compliance program. The statutory basis for the program is found in the Nebraska Environmental Protection Act, the Integrat ed Solid Waste Management Act, and the Solid Waste Disposal Act.

The Environmental Protection Act, among ot her things, establishes the NDEQ’s rule making authority, permitting authority, and enfo rcement authority. The Integrated Solid Waste Management Act provides the primary st atutory authority for the management of solid waste (and the basis for the CCR permitting and compliance program). The Solid Waste Disposal Act establishes a local siting approval process for landfills.

The primary rules and regulations that govern the permitting and operation of CCR landfills and surface impoundments are published in Title 132- Integrated Solid Waste Management Regulations , which can be found at http://www.deq.state.ne.us/RuleAndR.nsf/Pages/132-TOC

.

Title 132 refers to CCR as Fossil Fuel Combustion Ash. The regulations also refer to “landfills” as “disposal areas”. The regul ations for the permitting of CCR landfills are closely patterned after the 40CFR Part 258 requirements for municipal solid waste landfills. However, some of the requirement s have been tailored specifically for CCRs, acknowledging the single source waste stream would be handled at landfills or surface impoundments dedicated to receiving only CCRs.

The same regulatory requirements are a pplied to landfills and surface impoundments (Title 132 does not make a distinction between the two types of f acilities, they are both treated as “disposal areas” under the regulations and the same requirements apply.)

Facilities must also comply with Title 118- Ground Water Quality Standards and Use

Classification

. http://www.deq.state.ne.us/RuleAndR.nsf/pages/118-TOC

. Title 118 establishes remedial action requirements for releases to ground water from landfills and other point sources.

Local Siting Requirements

CCR landfills, as well as other types of landf ills must go through a local siting approval process. Before a landfill permit application can be submitted to the NDEQ for review, the facility must request local siting appr oval from the governing body where the facility plans to be located. If the fac ility is owned by a pub lic utility a shortene d process applies. The local siting approval process includes: addressing several s iting criteria (listed below), notice to property owners, filing requirements and a public hearing. Siting approval shall be granted only if the proposed ar ea or facility meets all of the following

criteria:1. The solid waste disposal area is nece ssary to accommodate the solid waste management needs of the area which the so lid waste disposal area or solid waste processing facility is intended to serve;

2. The solid waste disposal area is designed, located, and proposed to be operated so that the public health, safety, and welfar e will be protected. The applicant shall provide an evaluation of the potential for a dverse health effects that could result from exposure to pollution, in any form, due to the proper or improper construction, operation, or closure of th e proposed solid waste disposal area;

3. The solid waste disposal area is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property. The city council, village board, or county board shall consider the advice of the appropriate planning commission regarding the application;

4. The plan of operations for the solid wast e disposal area is designed to minimize the danger to the surrounding area from fire , spills, or other op erational accidents;

5. The traffic patterns to or from the so lid waste disposal area are designed to minimize the impact on existing traffic flows; and

6. Information regarding the previous operating experience of a private agency applicant and its subsidiaries or parent corporation in the area of solid waste management or related activities are made available to the city council, village board, or county board. If a corporation, a parent company or subsidiary thereof, or any officer or board member of the corporation or the parent company or subsidiary applying for approval has been convicted of a felony within ten years or the date the application is filed, site approval shall not be granted.

Permit Application Process

After the local siting approval process has been completed the applicant can submit a permit application for NDEQ review.

The permit application process begins with the submittal of an application that contains the following:

1. Permit application form signed by the owner and operator;

2. Legal description of site boundaries;

3. Evidence of local siting approval or notification of local approval;

4. Contents of the application demonstrati ng compliance with Title 132 and prepared by a professional engineer registered to practice in the State of Nebraska;

5. All maps and sets of plans; and

6. Permit application fee payable to the NDEQ.

The regulatory requirements for a CCR landfill a pplication that must be addressed prior to issuance of a permit are found in Title 132. Listed below is a brief description of the Chapters of Title 132 that apply to CCR landfills.Title 132, Chapter 2-PERMITS: APPL ICATION PROCEDURES: HEARINGS REQUIRED. Chapter 2 outlines the general pe rmit application procedures that include requirements for the content of the applicatio n; signatures; procedures for information requests related to the permit applicat ion review; general permit conditions; transferability of permits; issuance or de nial of permits; modifying, suspending, or revoking permits; public notice of pending permit action; procedures for public participation and public hearings; and filing for renewal of expiring permits.

Title 132, Chapter 4-CRITERIA FOR FOSSI L FUEL COMBUSTION ASH DISPOSAL AREAS. Chapter 4 outlines specific requirements for CCR landfills. The following outlines requirements for the various Sections within Chapter 4.

Title 132, Chapter 4, Section 002 . Locational Criteria. De scription of current and projected use of water resources in the potential zone of infl uence of the site; distance to groundwater; potential interrela tionship of local aquifers and surface waters; water quality; soil and bedrock de pths; potential for leacha te generation; ground water condition; surface water locations; land use and population density; distance to highways; distance to flood plains; inventory of wetla nds; and requirements related to unstable areas. A permit will not be issued if this in formation indicates the disposal activity will

threaten waters of the state.

Title 132, Chapter 4, Section 003 . Design Criteria. Section 003 details the design criteria for fossil fuel combustion ash disposal areas. Included in the require ments are: must be protective of human health and the environmen t; and not result in pollution of the waters

of the state. If the fossil fuel combus tion ash disposal area was built or laterally expanded after October 1, 1993 a dditional requirements for lin er design and construction; leachate collection and treatment system; construction quality assurance plan for engineered containment system; a nd run-on/run-off control systems.

Title 132, Chapter 4, Section 004. Operational Criteria. Section 004 details the operational criteria as a part of the regul ations, and require fossil fuel combustion disposal areas to only accept non-hazardous waste defined as fossil fuel combustion ash; controls for public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial ba rriers, natural barriers, superv ision, or any other measures, as appropriate to protect human health and the environment; liquid restriction for bulk or non-containerized liquid; material salvaged storage; final cove r; fugitive dust control; and an operational plan. The operational plan mu st include: hours of operation; sources and types of fossil fuel combustion ash to be r eceived, including an estimate of the daily amount; contingency plan; and schedule of filling, placement methods and a phased site development plan.

Title 132, Chapter 4, Section 005. Closure Criteria. Section 005 details the requirements for closure criteria including the installation of the final cover system within six months of the last receipt of waste and detailed notificatio n plans. The final cover must meet specific criteria with final grades and side slopes which prevent r un-on and run-off from eroding or damaging the final cover.Title 132, Chapter 4, Section 006. Post-closure Criteria. Section 006 details the facility owner or operator requirements to provide post-closure care for a period of five years after closure is finalized. During the post closure period, annual inspections, maintenance of the cover, access control stru ctures and signage must be performed and maintained. Maintenance and operation of a ny existing leachate collection system and

other environmental control features must c ontinue. Semiannual sampling and testing of any existing groundwater monitoring well syst ems, with the results reported to the NDEQ. The length of the post closure car e period may be increased if the NDEQ determines that a lengthened period is n ecessary to protect human health and the

environment.

Title 132, Chapter 7-GROUND WATER M ONITORING AND REME DIAL ACTION. Chapter 7 addresses the requirements for groundwater monitoring for all solid waste disposal areas including thos e for CCR. Details include location, number, spacing and depths of the monitoring systems. Groundwat er monitoring plans include sampling and analysis procedures to ensure monitoring re sults that provide an accurate representation of the groundwater quality at the background and down gradient wells. Section 004 of Chapter 7 clarifies the frequency of sampli ng and analysis and constituents to be analyzed for and reported to the NDEQ. Facilities must also comply with Title 118- Ground Water Quality Standards and Use Classification

.

Title 132, Chapter 8-FINANCIAL A SSURANCE CRITERIA: SOLID WASTE MANAGEMENT FACILITIES. Financial assurance is required for all permitted landfills in Nebraska, including CCR landfills. Facilities are required to provide a detailed written estimate for the cost of hiring a third party to close the largest area of the solid waste disposal area requi ring a final cover as required in the regulations at any time during the active life in accordance with the closure plan. Post-closure costs must also be provided in a detailed estimate including the cost of hiring a thir d party to conduct postclosure care for the solid waste disposal area in compliance with the post-closure plan.

Allowable mechanisms include trust f unds, surety bond guaranteeing payment or performance, letter of credit, insurance, corporate financial test, local governments financial test, corporate guarantee, local gove rnment guarantee, or other state-approved mechanism. Facilities may also use a combin ation of mechanisms to satisfy the need for

financial assurance. In addition to financ ial assurance for closur e and post-closure care financial assurance can also be required for investigation or corrective action. The Integrated Solid Waste Management Act requ ires the owner or operator of a landfill to

undertake corrective action in th e event of contamination or a threat of contamination caused by the landfill. Financial assurance may be required in an amount determined by the director of NDEQ follo wing public notice and hearing.

Following submittal of the complete permit application the NDEQ performs a detailed review of the applicat ion to determine if it satisfies th e requirements of Title 132. When the application is administrative comple te the NDEQ public notices a preliminary decision on the application for 30 days. During the public notice comment period any person can submit comments on the applica tion and preliminary decision, and alsorequest a hearing. Following the comment period or any hearing a final decision is issued. The final decision may be to de ny the application, approve, or approve the application with modifications after taking into account public comment. A contested case hearing can be requested by any aggrie ved person following the final decision on the application.

If the application is approved the facility is given permission to begin construction. The final permit to operate is issued after th e NDEQ has inspected the site to ensure construction conforms to the approved applic ation and after the fina l construction quality assurance report has been reviewed and approved.

Permits are issued for a five year period. One hundred and eighty days prior to the expiration of a permit the facility must apply for renewal of the expiring permit. Prior to renewal, the permittee must be in compliance with or have complied with all the terms, conditions, requirements, and schedules of compliance of the expiring permit. Attachment A are the general permit conditions for permitted CCR landfills.

Inspection and Compliance

Compliance oversight is conducted by una nnounced annual inspections, comprehensive inspections at the time of permit renewal, and inspections initia ted through citizen complaints. Unannounced facility inspections are conducted at least once per year to evaluate the operation and management of the disposal facility. Inspection checklists are used to record satisfactory orunsatisfactory conditi ons at the site, see Attachment B. If the facility is out of comp liance with the approved pe rmit application, the NDEQ will initiate procedures for the facility to come back into compliance.

The findings of the annual inspections are doc umented and a report is prepared and sent to the facility. If a viola tion is found a Letter of Warni ng (LOW) or Notice of Violation (NOV) is also sent to the facility; including a time period by which the facility must respond with the corrective action to be taken.

Individuals may file a complaint if ther e is a concern about how a CCR landfill is constructed or operated. Typical ly a complainant calls the NDEQ to state their concerns. A complainant can also file a complaint on the NDEQ website.

High priority violations can be forwarded to the NDEQ Legal Services Division for appropriate action. Such action may include civil penalties of up to $10,000 per violation per day. The NDEQ also has the ability to revoke permits and deny the renewal of permits.

When a facility is applying to renew their operating permit a comprehensive inspection is completed by the permit and compliance unit st aff, including a geologist and financial

assurance coordinator. Permits cannot be re newed unless the permittee is found to be in compliance with the expiring permit.B. RCRA Section 8002(n), a. Existing State Regulatory Oversight

p. 35153 EPA would also welcome more de tailed information regarding the states’ historic practice in implementing its existing requirements, including for example, the states’ record of enforcemen t and its practice in providing for public participation in the development and impl ementation of any existing permitting requirements. EPA is particularly interested in information on the extent to which states have implemented requirements applicable to the older, existing units, which represent the majority of th e units into which CCRs are currently disposed (approximately 90%).

The State of Nebraska currently has seve n CCR landfills, all of which are permitted and inspected by NDEQ. One new landf ill is under construction. Fi ve of the existing sites are considered dry landfills. Two of the sites are designed to use water to transport the ash to the landfill, therefore under the proposed federal regulator y definition they would be classified as surface impoundments. Thes e two surface impoundments are excavated earthen structures and therefore are not subjec t to discharge due to a break in a dike or dam structure. Three of the permitted sites have liner systems in place, one being a surface impoundment. The new landfill under c onstruction is being constructed with a composite liner system. All sites have an approved groundwater monitoring program. Liners are required for new or lateral expa nsions of existing CCR landfills. Attachment C lists the CCR landfills in Nebraska and the type of liner in use.

Three of the existing CCR landfills have had compliance issues noted from past inspections and have received letters of warning from the NDEQ to address the compliance issues. The compliance issues cons isted of allowing part of a liner to be exposed, timely placement of final cover, removal of trees and brush from a drainage area

and removal of a small amount of waste not considered to be CCR waste. All compliance issues were addressed by the facilities and no enforcement beyond the letter of warning was initiated or warranted.

C. Preliminary Bevill Conclusion s and Impact of Reconsideration p.35157 EPA is also soliciting comments on the extent to which the information currently available to the Ag ency reflects current industr y practices at both older and new units. For example, EPA would be particularly interested in information that indicates how many facilities currently have groundwater monitoring systems in place, how those systems a re designed and monitored, and what, if anything, they have detected.

Attachment D details the current inform ation on groundwater monitoring at the CCR landfills in Nebraska. Chapte r 7 of Title 132 addresses the requirements for groundwater monitoring for all solid waste landfills, including those which accept fossil fuelcombustion ash. Details include location, num ber, spacing and depths of the monitoring systems. Groundwater monitoring plans incl ude sampling and analysis procedures to ensure monitoring results that provide an accurate representation of the groundwater quality at the background and downgradient wells. Section 004 clarifies frequency of sampling and analysis and constituents to be analyzed for and reported to the NDEQ. Facilities must also comply with Title 118- Ground Water Quality Standards and Use

Classification

.

p. 35158 EPA nevertheless solicits comment on this issue, including more specifics on the potential for procedur al difficulties for state pr ograms, and measures that EPA might adopt to try to mitigate these effects.

Nebraska’s regulations for CCR manage ment are contained in Title 132 – Nebraska Integrated Solid Waste Management Regulations . Nebraska has been implementing these regulations for nearly 17 years. Ne w federal rules for management of CCR under Subtitle D would probably require some rule making changes to Ti tle 132 involving some extra expenditure of resources , but could probably be absorb ed by the existing program. Adopting flexibility in the federal rules unde r a Subtitle D approach similar to the flexibility provided for in the federal MSWL F rules under 40CFR Part 258 would help to mitigate these problems.

Nebraska utilizes Title 118 – Ground Water Quality Standards and Use Classification to
address corrective action at landf ills, and for all other point so urce pollution occurrences. Appended to Title 118 is Appendix A, Gr ound Water Remediation Protocol. This appendix prescribes an eleven step process that NDEQ follows to investigate a site and

make corrective action decisions. When NDEQ went through the program approval process for its municipal solid waste landfill permit program under Subtitle D, Title 118 was found to be equivalent to the corrective action proce ss laid out under 40CFR Part 258 for municipal solid waste landf ills even though the regulati ons were not the same. If EPA adopts a prescriptive approach in pe rforming corrective action without any allowance for flexibility, adopting the progr am would create procedural difficulties. Adopting flexibility for states that have permit programs for CCR landfills or other regulatory structure to address corrective ac tion at CCR landfills would help mitigate the procedural difficulties.

If EPA adopts a Subtitle C appr oach it is unlikely that Nebraska would be able to adopt the program. NDEQ does not have the res ources to implement the program under a Subtitle C approach. NDEQ is currently in the process of reducing its hazardous waste program by one full time equivalent (FTE) of staff resources to address General Fund budget shortfalls as directed by the Nebraska Unicameral Legislatur e. In addition NDEQ

is not authorized for co rrective action in its haza rdous waste program.It would be helpful if EPA would clarify in its final rule how state voluntary cleanup programs might be used to address correc tive action found necessary at CCR landfills

under either a Subtitle C or Subtitle D approach.

p. 35158 Therefore, EPA solicits detailed in formation on this topic, to aid in further quantifying the extent to which ex isting capacity may be insufficient. For example, EPA is interested in detaile d information on the volume of CCRs now going off-site for disposal; the nature of off-site disposal sites ( e.g., commercial

subtitle D landfills versus dedicated CCR la ndfills owned by the utility); and the amount of available land on utility sites for added disposal capacity.

In March 2010, in response to a request for information regarding how much CCR is being generated in Nebraska and what porti on is landfilled versus beneficially used.

Attachment E – Nebraska Coal Combustion Si tes Capacities and Beneficial Use of Ash was developed. The amount may fluctuate due to how much a facility is able to market

for beneficial use.

p. 35158 Further, under the subtitle C scen ario, we believe that most states should be able to address any shortfa lls through hazardous waste generator or disposal fees. EPA specifically solicits co mments from states as to the extent to which such fees would be able to offset the costs of administering permit, inspection, and enforcement programs.

NDEQ does not have hazardous waste generator or disposal fees and would not be able to create any new fees. NDEQ’s hazardous wast e program is funded by a mixture of State General Funds and federal funds. The program can only use resources allocated to it by the Nebraska Unicameral Legislature to administer the program.

Even if EPA were to increase federal ST AG funding to help mitigate funding issues related to a Subtitle C appro ach, NDEQ would not be able to add FTEs to implement the

program.

D. EPA Is Not Reconsidering the Regulato ry Determination Regarding Beneficial Use p. 35160-35165

Nebraska currently allows for beneficial use of coal combustion residual. All beneficial use of CCR must meet the requirements of legitimate reuse and not disposal.

When Nebraska first developed its solid wast e program it received on a regular basis, and still does today, inquiries from businesses a nd industry regarding the suitability of beneficial uses of coal combustion by-p roducts, steel manufacturing by-products, and other similar wastes. In response to thes e inquiries Nebraska developed a guidance document, Attachment F, which outlines a review and approval process that businessesand industry must follow in order to take advantage of the excepti on from disposing of

the materials in a solid waste landfill.

In addition to outlining a review and approval process for the beneficial use of thesematerials, the guidance document outlines nine legitimate uses of coal combustion byproducts that Nebraska determined would not have the potential to cause contamination.

The beneficial use of this material in the nine ways identified in the guidance document would not require evaluation and approval by the NDEQ because an evaluation of the environmental suitability of using the mate rials had already been conducted. Provided the materials are used in the manner prescr ibed, no additional evaluation or requirements

are warranted.

Use of coal combustion by-products in a manne r other than the nine beneficial uses identified in the guidance document without first undergoing the review and approval process identified in the gui dance would be considered disposal under Title 132 and subject to enforcement action.

Peamble Section IX: Summary of the Co-Proposal Regulating CCRs Under Subtitle D Regulations

Overview and General Issues

Notifications p. 35194 However, the Agency solicits comments regarding the methods for providing notifications to the public and the states. EPA also solicits comments

on whether there could be homeland securi ty implications with the requirement to post information on an internet si te and whether posting certain information on the internet may duplicate information that is already availa ble to the public through the state.

p. 35195 However, the Agency solicits comments regarding the methods for providing notifications to the public and the states.

NDEQ’s permit program requires that the facili ty maintain an operating record at the facility or at an alternative location a pproved by NDEQ. In addition, the permittee is required to notify the NDEQ when records have been placed in or added to the operating record. The NDEQ also maintains a complete pe rmit file that is accessible to the public.

Therefore the use of an internet site woul d be duplicative and unn ecessary. If a state implements a permit program with requireme nts for maintaining an operating record, notification requirements to the state, and allows access to permit documents then the notification requirements proposed by EP A in this rule should be waived.

DefinitionsIndependent registered professi onal engineer or hydrologist p. 35197 EPA seeks comment on the proposed reliance on independent professionals in implementing the pr oposed flexibility of performance

standards.

NDEQ’s permit program defines a “qualified gro und water scientist” in the same manner as proposed in EPA’s rule. Reliance on thes e professionals in implementing the proposed flexibility of performance standards is appr opriate. In addition, if a state implements a permit program with these requirements it woul d be appropriate to allow the additional flexibility for alternative sta ndards as allowed for municipa l solid waste landfills found in 40CFR Part 258. The citizen lawsuit provision would still be available and a state permit program would provide an a dditional level of oversight on the facility and the professionals they utilize.

Differences in Location Rest rictions for Existing and New CCR Landfills and Surface Impoundments, and Lateral Expansions. p. 35198 However, EPA seeks comment and additional information regarding the number of existing CCR landfills that are located in such areas.

p. 35198 EPA therefore solicits comment a nd additional data and information regarding the extent to which existi ng CCR landfills are currently located in

such locations.

p. 35198 EPA generally seeks comment and additional information regarding the extent to which CCR landfill capacity would be affected by applying these location restrictions to existing CCR landfills.

p. 35198 EPA therefore solicits comment on th e extent to which facilities could comply with these performance standard s, and the necessary costs that would

be incurred to retrofit the uni t to meet these standards.

p. 35199 At the same time, as discussed in greater detail in section VI, with regard to the subtitle C co-proposal, EPA is soliciting comment on the appropriate amount of time necessary to meet these time frames as well as measures that could help to address the potential for inadequate disposal capacity.

NDEQ’s permit program does not distingui sh between landfills or surface impoundments. For purposes of permitting, both are considered to be “disposal areas” and are subject to the same regulatory requi rements. NDEQ’s regulations use the term

“fossil fuel combustion ash” which is e quivalent to EPA’s term of CCR. NDEQ regulations do not have locati onal criteria for “fault areas” or “seismic impact zones”because in development of its regulations those types of criteria were not identified to be prevalent in Nebraska and therefore not rele vant to the permitting process. Presented

below are the locational criter ia utilized in NDEQ’s permit program as excerpted from the regulations. NDEQ notes that EPA’s proposed locational crite ria are similar to NDEQ’s and believes these criteria ar e protective of the environment.

“ 002 Locational Criteria. New fossil fuel co mbustion ash disposal areas and lateral expansions of existing fossil fuel combusti on ash disposal areas shall be located in

accordance with the standards as described in this section. The application shall include documentation verifying that the fossil fuel combustion ash disposal area complies with the following.

002.01 A fossil fuel combustion ash dispos al area shall not be located in an area where the Department finds that the solid waste activities will have

a detrimental effect on the waters of the state based on the following

criteria:

002.01A Current and projected use of water resources in the potential zone of influence of the site;

002.01B Ground water elevation and proposed separation between the lowest point of the lowest cell and the predicted maximum water table elevation; areas ha ving high ground water tables may be restricted to landfill operations which will maintain a safe vertical distance between deposited refuse and the maximum water table elevation;

002.01C Potential interrelationship of the local aquifers, and

surface waters based on historical records or other sources of information; and

002.01D Background and initial quality of water resources in the potential zone of influence of the site.

002.02 The application shall incl ude, a description of the:

002.02A Soil and bedrock to a depth adequate to allow evaluation of the water quality protection pr ovided by the soil and bedrock;

002.02B Potential for leachate gene ration, and of pollution of the waters of the state;

002.02C Ground water condition, incl uding ground water flow below and adjacent to the proposed facility, with an appraisal of the effect of the facility on ground water and surface waters;

002.02D Name of and distance to nearby surface waters; and

002.02E Land use and population density of the proposed facility and of the area surrounding the faci lity within one mile of the facility boundaries.

002.03 No person shall locate a fossil fu el combustion ash disposal area within one thousand (1,000) feet from the nearest edge of an existing right-of-way of any state, interstate or federal highway unless the active area is screened by natural objects, pl antings, fences, or other appropriate means so as to not be visible from such highway.002.04 Floodplains. A new fossil fuel com bustion ash disposal area, or a lateral or vertical expansion of these facilities, shall not be located in a 100-year flood plain, unless the owner or operator can demonstrate that the disposal area will not restrict the flow of the 100-year flood, reduce the temporary water storage capacity of th e floodplain, or result in washout of solid waste so as to pose a hazard to human health and the environment.

002.05 Wetlands. A new fossil fuel combusti on ash disposal ar ea or lateral expansion shall not be located in wetlands.

002.06 Unstable areas. An owner or operator of a new fossil fuel combustion ash disposal area, existing fossil fuel combustion ash disposal area, or lateral expansion located in an unstable area shall demonstrate in the permit application that engineeri ng measures have been incorporated into the facility's design to ensure that the integrity of the containment systems of a fossil fuel combustion ash disposal area will not be disrupted.

002.06A An owner or operator shall consider the following factors, at a minimum, when determining whether an area is unstable:

002.06A1 On-site or local soil conditions that may result in significant differential settling;

002.06A2 On-site or local geologic or geomorphologic features; and

002.06A3 On-site or local human-made features or events, both surface and subsurface.

002.06A4 For purposes of this section, 002.06A4(a) "Unstable area" shall mean a location that is susceptible to

natural or human-induced events or forces capable of impairing the integrity of some or all of the facility structural components responsible for preventing releases from the facility. This term may include poor foundation conditions, areas susceptible to mass movements, and

Karst terranes. 002.06A4(b) "Poor foundation

conditions" shall mean those areas

where features exist which indicate

that a natural or human-induced event may result in inadequate foundation support for the structural components of a solid waste management facility. 002.06A4(c) "Areas susceptible to

mass movements" shall mean those areas of influence (i.e., areas characterized as having an active orsubstantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the solid waste management facility, because of natural or human-induced events, results in the down slope transport of soil and rock material by means of gravitational influence. 002.06A4(c)(1) Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall. 002.06A4(d) "Karst terranes" shall mean areas where karst topography,

with its characteristic surface and subterranean features, is developed

as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.”

Closure of Existing CCR Landf ills and Surface Impoundments.

p. 35202 EPA solicits comment, however, on whether any subtitle D option

should allow facilities to use an alternativ e design for new disposal units, so long as the owner or operator of a unit could obtain certification from an independent registered professional engin eer 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 aquifer at the relevant point of compliance— i.e., 150 meters from the unit boundary down gradient from the unit, or the propert y boundary if the point of compliance ( i.e., the monitoring well) is beyond the property boundary.

NDEQ’s permit program allows for alternativ e liner design demonstrations that are equivalent to the requirements for munici pal solid waste landfills under 40CFR Part 258 and believes this is a reasonable and protec tive approach in states that have permit programs that adopt these same requirements.Note: Proposed design criteria found in 257.71 for CCR surface impoundments (p.35243) appear to be a double liner system a nd not a preferred composite liner system as described by EPA in the preamble on p. 35202. The requirements in 257.71 should be

revised to be the same as found in 257.70 for CCR landfills.

Groundwater Monitoring / Corrective Action p. 35205 EPA, more generally, solicits comment on whether relying on the existing groundwater monitoring a nd corrective action requirements for MSWLFs and CESQG facilities, as mo dified in today’s proposal, are appropriate for CCR landfills and surface impoundments.

p. 35205 EPA solicits comment in particular on the appropriateness of relying on such a mechanism under the proposed groundwater monitoring and

corrective action criteria.

p. 35205 The Agency thus solicits comment s on these omissions from today’s proposed rule, and also on whether a more prescriptive approach could or should be developed under subtitle D of RCRA. EPA also solicits comment on whether the requirement for certificatio n by an independent professional engineer would be effective or appropriate in such a case.

NDEQ’s permit program has adopted the same regulatory requirements for ground water monitoring systems as are required for munici pal solid waste landfills under 40CFR Part 258. Accordingly, NDEQ believes this is a reas onable and protective approach in states that have permit programs that adopt these same requirements. If a state that adopts the same requirements in its permit as found in 40CFR Part 258 for groundwater monitoring then NDEQ believes that there is no need to ma ke the modifications proposed in the rule (from the 40CFR Part 258 approach). A st ate permit program provides an additional level of oversight to the use of licensed pr ofessionals and citizen lawsuit provisions.

NDEQ’s corrective action requireme nts are contained in Title 118 Ground Water

Standards and Use Classification and do not mirror the requirements found in 40CFR Part 258 or those in EPA’s proposed rule . However, during the program approval process of NDEQ’s municipal solid waste la ndfill permit program EPA determined that NDEQ’s corrective action requireme nts contained in Title 118 were equivalent to 40CFR Part 258, and NDEQ’s municipal solid waste landfill permit program was subsequently approved. NDEQ encourages EPA to allow flexib ility to states with different regulatory approaches for ground water protection and co rrective action to ut ilize their existing regulatory structure. To esta blish different standards for mu nicipal solid waste landfills and CCR landfills would create inconsistency in policy and would be a burden on state programs (to have to create and implement a separate set of standards.)Financial Assurance p. 35210 EPA solicits comments on wh ether financial responsibility requirements under CERCLA § 108(b) should be a key Agency focus should it regulate CCR disposal under a RCRA subtitle D approach. (By today’s proposed rule, EPA is not reopening the comment period on the January 2010 ANPRM, which closed on April 6, 2010. See Identification of Additional Classes of Facilities for Development of Fina ncial Responsibility Requirements under CERCLA Section 108(b), 75 FR 5715 (Feb. 4, 2010) (extending comment period to April 6, 2010).)

p. 35210 However, EPA also solicits comment on existing state waste programs for financial assurance for CCR disposal facilities, and whether and how the coproposed RCRA subtitle D regulatory a pproach might integrate with those

programs.

NDEQ’s permitting program has implemented the same financial assurance requirements for CCR landfills as it has for its approved m unicipal solid waste landfill permit program. Financial assurance is important to ensure money is availabl e to complete closure, postclosure care, and corrective action. EPA shoul d give consideration to how state programs are implementing financial responsibility requirements and allow flexibility for those programs to continue to be implemented.

Off-Site Disposal p. 35210 Under a subtitle D regulation, regulated CCR wastes shipped off-site for disposal would have to be sent to facilities that meet the standards above.

EPA should clarify this statement in the final rule and indicate that municipal solid waste landfills in compliance with the 40CFR Part 258 requirement s in an approved state may receive off-site CCR wastes for disposal. There are a number of municipal solid waste

landfills in Nebraska that have taken advantage of the additi onal flexibility in design andground water monitoring afforded to them under 40CFR Part 258. If EPA limits the offsite disposal to facilities th at meet the minimum standards that EPA is proposing in this proposed rule then those municipal solid waste landfills that ar e utilizing alternate designs or ground water monitoring would be excluded from receiving CCRs. In doing so the capacity for managing CCRs in Nebr aska would unnecessarily be decreased.

Preamble Section XIV. Is the EPA so liciting comments on specific issues?

p.35223 Whether the subtitle D option, if pr omulgated, 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 alte rnative design would ensure that the appropriate concentration values for a set of constituents typical of CCRs will not be exceeded in the uppermost aquif er 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).

NDEQ’s permit program allows for alternativ e liner design demonstrations that are equivalent to the requirements for munici pal solid waste landfills under 40CFR Part 258 and believes this is a reasonable and protec tive approach in states that have permit programs that adopt these same requirement s. The permit application process and regulations require the utilizati on of an independent profession al engineer registered in

the State of Nebraska.

If EPA believes that certification from an inde pendent registered professional engineer or hydrologist does not provide enough assuranc e that alternative designs would be protective it might consider the approach ta ken in the 40CFR Part 258 program and use a similar approach (recognizing EPA cannot approve state programs) in this proposed rule. 40CFR Part 258 provides a definition for “Direct or of an approved State”. Then in the Design Criteria the regulation specifies that the Director of an approved State approves the design, considers a number of factors in approving the design, and specify the relevant point of compliance after giving consideration to a number of additional factors.

In the final rule EPA could give consideration to a similar approach by defining a “State permit program” and then allowing a Stat e permit program to approve the design, consider factors in approving the design, and sp ecifying the relevant po int of compliance. The “State permit program” could have a de finition similar to: “State permit program means a permit program implemented by a Stat e agency that adopts and implements the minimum requirements for the disposal of coal combustion residues out lined in this final

rule.”

A similar approach might also be consider ed to allow flexibility for the location restrictions, operating crit eria, ground-water monitori ng and corrective action, and

financial assurance.

NDEQ appreciates that EPA is concerned about not having the authority to approve state permit programs for CCRs. However states have extensive experience in implementing the municipal solid waste landfill criteria under 40CFR Part 258 and can effectively implement similar criteria for CCRs without approval of their programs by EPA. Such an approach should not affect enforcem ent through citizen suits under RCRA section 7002 or by EPA under RCRA section 7003. In a ddition, taking such an approach would

allow states to utilize their own enforcemen t authority and not rely upon the citizen suit authority under RCRA section 7002. And, allo wing states to consider the alternative approach to designs, ground water monitoring, et c. may give states incentive to adopt the minimum requirements of the final federal rule into their state permit programs.

p. 35223 Whether the subtitle ‘‘D prime’’ option is prot ective of human health

and the environment.The Subtitle D Prime option would be the pr eferable approach for Nebraska. NDEQ has only one permitted facility that meets the definition of a surface impoundment, and that does not have a composite liner system. A ground water monitoring program is implemented at this facility and monitoring re sults demonstrate that the facility has not impacted ground water. Requiring this facility to either close or re trofit with a composite liner system would be costly and yi eld no greater environmental benefit.

Damage Cases p. 35224 The report of additi onal damage cases submitted to EPA on February 24, 2010 by the Environmental Integrity Project and EarthJustice.

NDEQ is aware that the Environmental Inte grity Project and EarthJustice submitted an additional report to EPA that listed a CCR landfill in Nebraska as a damage case. NDEQ offers the following additional information a nd clarification of th e conditions at the landfill identified in the report.

Sheldon Station Ash Pit #3

The Environmental Integrity Project, Earthjusti ce, and the Sierra Club have identified the closed fossil fuel combustion ash (FFCA) landf ill at Sheldon Station (Coal Ash Pit #3) as a damage case in a recently released repor t titled “IN HARMS WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment.” Most of the information in the report is accurate regardi ng the fact that selenium and sulfate have been detected at levels exceeding maximum contaminant levels (MCLs) in some of the monitoring wells at the site. However it is not conclusive that the landfill is the source of

the elevated levels of selenium and sulfate. The information obtained to date suggests that additional investigation is warranted at Ash Pit #3 and, the site is being further investigated by the Nebraska Public Power Di strict under the direction of the Nebraska Department of Environmental Quality. The purpose of the additional investigation is to determine to what extent, if any Coal Ash Pit #3 has impacted ground water quality at the

site.

At this time the NDEQ has not concluded that the site is a potent ial or proven damage case as defined by EPA. Further investigation is necessary in order to arrive at those

conclusions.

The following provides some bac kground information on the site:

Naturally Occurring Substances/Contaminants of Concern The two contaminants of concern, selenium and sulfate, exist as naturally occurring minerals throughout the region. Both selenium and sulfate have been detected in wells downgradient and upgradient of Ash Pit #3. Similar observations have been made in downgradient and upgradient monitoring wells at the currently operating landfill, Ash Pit #4, located near the southern edge of the property.Other Possible Source or Sources being Considered

The natural occurrence of both s ubstances is being considered in evaluation of the site, as well as the possibility of a localized discha rge of cooling tower water used for fire suppression or similar activity i nvolving power plant operations.

Site is Closed in Post-Closure Monito ring Status and Regulat ory Standards have Improved The report IN HARMS WAY refers to the closed landfill as “clay-lined.” However the closed landfill was not constructed with an engi neered liner. This site was constructed in 1989 prior to promulgation of the regulations th at now apply to coal ash landfills. The substantial new requirements for FCCA landfills were adopted in 1993. After the adoption of the new regulations, all new facilities or lateral expansion of existing facilities are required to be lined.

As a point of interest, the currently operating landfill, Ash Pit #4 was designed to the newer regulatory standards, with a compact ed clay liner, a leachate collection system, and an evaporation pond. None of the seven monitoring wells associated with the active site have shown any indicati ons of a possible release.

Conditions Unlikely to Impact Useful W ater-Bearing Aquifer Under the “at-risk population” column of a table in the report IN HARMS WAY, an irrigation well has been identified as being w ithin one mile of the landfill. However that irrigation well draws water from the deeper regional aquifer with the upper and lower aquifers being separated by a 50- to 100-ft. thic k, low permeability clay layer. Ash Pit #3 was constructed above a shallow aquifer consis ting of glacial till. The glacial till is underlain by a high-density clay layer that acts as a protective ba rrier above the lower regional aquifer which is the zone used fo r water wells. The elevated groundwater monitoring results are from the low-yield uppermost zone and since it is not a source of drinking or irrigation water, it is curre ntly not a public health threat.

Regulatory and Enforcement Perspective

The site continues to be m onitored and evaluated to more conclusively determine the extent to which the landfill may be contributing to the cumulative observed levels of these naturally occurring contaminants, and wh at further steps should be taken to ensure that private wells within any reasonable dist ance of the site are not adversely impacted. The owner/operator has agreed to install addi tional monitoring wells to further determine possible attribution to the site and assess the possibility of off-site migration of these

substances.

No Removal or Remedial Action Warranted Under Current Conditions The report IN HARMS WAY listed Ash Pit #3 as having enforcement actions. The public-owned power plant facility is voluntarily conducting additional groundwater investigation with the NDEQ’s guidance. If however, the f acility’s owner/operators were not complying with the NDEQ’s recommendati ons, enforcement action could be pursued. The MCL for selenium is 0.05 mg/l, and 250 mg/l for sulfate. The highest concentrations

of selenium and sulfate at Ash Pit #3 were 0.073 mg/l and 381.0 mg/l respectively.Unless the levels of selenium and/or sulfate increase dramatically, the likely remedial

action for this site would be continued groundwater monitoring and/or restricted groundwater use.Attachment A

PERMIT CONDITIONS FOR THE
FOSSIL FUELS COMBUSTION ASH DISPOSAL AREA

I. GENERAL PERMIT CONDITIONS

1. For the purpose of this Permit, terms used herein shall have the same meaning as those in Nebraska Statutes and Title 132 unless this Permit specifically provides otherwise. When the same word is defined in the Nebraska Statutes or regulations and in the fe deral regulations and the def initions are not identical,
the definition in the Nebraska Statut es or regulations shall control. Where terms are not defined in the regulations or this Permit, the meaning associated with such terms shall be defined by a standard dictionary reference or the generally accepted sc ientific or industrial meaning of the term.

2. The provisions of this Permit are severable, and if any provision of this Permit, or the application of any provision of this Permit to any circumstance is hel d invalid, the application of such provision to other
circumstances and the remainder of this Permit shall not be affected thereby.

3. The Permittee shall furnish to the NDEQ, within a reasonable time, any relevant information, which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this Permit, or to determine compliance with this Permit. The Permittee shall also furnish to the NDEQ, upon request, copies of any records that are required to be kept by this Permit.

4. The Permittee shall meet any compliance schedule imposed under its Permit and shall fulfill all reporting requirements of the Permit.

5. The Permittee shall maintain an oper ating record at the facility or in an alternate location approved by the Department. The operating record shall include all information required by the regulations.

6. The Permittee shall notify the NDEQ, within five (5) working days , of any planned or unplanned changes in the permitted facility or activities, which may resu lt in noncompliance with permit requirements or the Application. A written submission shall also be provided within ten (10) days of the time the Permittee
becomes aware of the circumstan ces. The written submission s hall contain a description of the noncompliance and its cause; the period(s) of noncomp liance, including exact dates and times; whether the noncompliance has been corrected; and if not, the antic ipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent re currence of the noncompliance. If requested, NDEQ may waive the ten (10) days written notice requirement in favor of a written report within thirty (30) days

.

7. The Permittee shall allow NDEQ full access to exis ting and available facility records, and shall allow Department inspectors entry and access, during reaso nable hours, to any building, area, or place for inspection purposes (except a building designed for and used exclusively as a private residence).

8. The Permittee shall retain the operating record until the end of the post-closure care period.

9. The Permittee shall not commence construction unt il written permission to construct has been received from the NDEQ in accordance with Title 132, Chapter 2, Section 009.05. The Permittee must supply a construction quality assurance (CQA) report and all other documentation needed to verify that the facility was constructed in accordance with the applicat ion and shall be signed by a professional engineer registered in the State of Nebraska. The Permittee shall not use the new construction until the NDEQ has reviewed the CQA report and approved the construction in writing.

10. The Permittee shall notify the Department in writin g thirty days prior to commencement of each additional phase of construction or final cover installation on any phase. The notification shall include a construction schedule. Construction shall not begin until written Department approval is received.Attachment A

11. The Permittee shall meet all the design criteria s pecified in the Application and Title 132, Chapter 4,
Section 003.

12. The Permittee shall operate this site in accordance with the Application and Title 132, Chapter 4, Section

004.

13. The Permittee shall provide and maintain financial as surance in accordance with Title 132, Chapter 8.

14. The Permittee shall submit any proposed Permit mo difications to the NDEQ for approval as revised pages to the Application, and must include a revision date on each page. The Permittee must incorporate all revised pages approved by the NDEQ in to the approved Permit Application.

15. The Permittee shall not cause a discharge of pollutants into waters of the State, including wetlands, that violate any requirements of Title119 – Rules & Regulations Pertaining to the Issuance of Permits Under the National Pollutant Discharge Eliminating System

.

16. The Permittee shall submit to the Department one h undred eighty days prior to the expiration date of this Permit a current topographic map of the disposal ar ea showing the limits of waste placement, the existing in-place waste volume, remaining waste disposal capacity and an estimate of the remaining site life with supporting data.Attachment B

Page 1 of 3

I:\WMSEC\INTEGRAT\CHECKLIS\Fossil.doc ROUTINE CHECKLIST FOR FOSSIL FUEL WASTE DISPOSAL AREAS

Based Upon Title 132 Integrated Solid Waste Management Regulations

GENERAL INFORMATION

FACILITY NAME COUNTY FACILITY ID #

DATE OF INSPECTION TIME/ARRIVAL TIME/DEPARTURE PERMIT #

DAY/WEEK OPEN WEATHER TEMPERATURE

OWNER TELEPHONE NUMBER

ADDRESS CITY STATE NE ZIP CODE

OPERATOR/CONTACT TELEPHONE NUMBER

INSPECTOR (S)

PRE-INSPECTION DATE/PREVIOUS VIOLATIONS

PRE-INSPECTION ON SITE NOTE: Check all subsections: SAT-S atisfactory or UNS-Unsatisfactory.

If Necessary, describe "UNS" violations under "Comments". SAT UNS SAT UNS

CHAPTER 2

007.04B Groundwater monitoring data received by NDEQ within 30 days of end of quarter

CHAPTER 4 (Operational Criteria)

003.04E Run-on/Run-off control systems maintained

004 Facility is operated in accor dance with the approved operational plan

004.01 Operated to be protective of human health and the environment

004.02 Accepts only fossil fuel combustion ash

004.02 Unacceptable waste removed daily

004.03 Control Public Access (fences, barriers, supervision)

004.04 Access roads maintained

004.05 Control discharge of pollutants into water of the state

004.06 Capacity of facility not exceeded and ar eas used for storage of waste are designated

for said purposes

004.07 Bulk or non-contai nerized liquids restricted

004.08 Salvage materials removed/stored properly

004.09 Completed areas properly reclaimed with final cover

004.10 Reasonable measures taken to control dust

005 Facility is closed according to the approved closure plan and final cover is installed

within six (6) months of the last receipt of wastePRE-INSPECTION ON SITE

SAT UNS SAT UNS

Page 2 of 3

I:\WMSEC\INTEGRAT\CHECKLIS\Fossil.doc 005.08 Approval from the Department has been granted prior to excavation, disturbing the

final cover, or removal of any deposited materials from the facility

CHAPTER 7

002.03D Wells maintained in accordance with design specifications

CHAPTER 10

001 Annual operating fee up to date

Banned Wastes

Neb. Rev. Stat. § 13 – 2039 Banned Wastes not disposed of on site

Other Requirements/Records (Specific to this Disposal Area)NDEQ Updated 9/27/00

Page 3 of 3

I:\WMSEC\INTEGRAT\CHECKLIS\Fossil.doc Comments

Signature of Inspector(s) ________________________________________________ Date ___________

________________________________________________ Date ___________

________________________________________________ Date ___________

________________________________________________ Date ___________

Signature of Reviewer ________________________________________________ Date ___________Attachment CNameLocationLinedsluiceLeachate systemNPPDHallamPond and pipesSheldon St.(Closed)NoNONoSheldon St.(active)3' of 10-7 clayYesModeling showed no prescriptive cap neededleachate pond lined2' of 10-7 clayFMLNPPDGerald GentlemanSutherlandActive portion of landfill not having intermediate cover ispresciptive linedNo longersluicesNo(2' of 10-7 clay overlaid w//FML w/ protective cover)OPPDOmahaNoNoNoNorth OmahaOPPDNebraskaNebraska City stationCityNoNoNoNC-2 (new landfillPrescriptive lined (2' of 10-7 clay overlaid w//FML)NoYesbeing constructed)Leachate pond lined2' of 10-7 clayFMLGrand IslandGrand IslandNoNoNoPlatte Generation StationHastings UtilitiesHastingsNoYesNoFremont UtilitiesFremontPrescriptive lined (2' of 10-7 clay overlaid w//FML)YesYesLeachate pond lined2' of 10-7 clayFMLPermitted Fossil Fuel Disposal AreasAttachment DPermitted FFCA Disposal Facility:Since:Parameters:Stastically Significant Increases (SSIs)*:Fremont Utilities - Lon D. Wright Power PlantAug 1998Gross Alpha in addition to Metals andInorganicsNoneGI Platte GenerationJun 1999Metals & InorganicsSulfate, below MCL, in one up-gradient well.NPPD Gerald Gentleman, Ash Pit #4 Active, SutherlandJan 1996Metals & InorganicsNoneNPPD Sheldon Pit #3 Post Closure, HallamDec 1999Metals & InorganicsSulfate (also Selenium > MCL)NPPD Sheldon Pit #4 Active, HallamJan 2003Metals & InorganicsNoneOPPD NE CityMar 2000Metals & InorganicsSulfate, below MCL, in one well, conductingassessment monitoring.OPPD NE City - New Cell Construction PermitN/AThis new area has not been constructedyet.N/AOPPD No. OmahaMay 2001Metals & InorganicsArsenic, Cadmium, Selenium, and Sulfate. AboveMCLs, determined to be from alternate source.Whelan Energy Center, HastingsJan 2002MetalsNoneTypical/Range of Permitted Detection-Indicator Parameters:Metals and InorganicsAluminum, Antimony, Arsenic, Barium, Beryllium, Boron, Calcium,Cadmium, Chromium, Cobalt, Copper, Iron, Lead, Mercury, Nickel,Selenium, Silver, Sulfate, Thallium, Vanadium, ZincNote:Each of the facilities perform analysis for a subset that includes amajority of the above listed parameters.* The facilities with SSIs are trying to demonstrate that the SSIs resulted from alternate sources(i.e., natural variation in groundwater quality or errors in sampling, analysis, or statisticalevaluation).Attachment E



# Nebraska Coal Combustion Sites Capacities and Beneficial Use of Ash

Na me of Coal Combustion Facility Permitted Capacity (cy) Annual

Generation (tons)(Bottom and Fly Ash) Bottom Ash and Fly Ash Marketed (tons) (beneficial use) Bottom Ash and Fly Ash placed in the landfill (tons)

Lon D. Wright

Power Plant (1) 76,400 CY 14,100 T 12,300 T

87% 1800 T

13%

NPPD Gerald

Gentleman Station (1) 10,100,000 CY 196,000 T 107,000 T

55% 89,000 T

45%

NPPD Sheldon

Station (1) 731,425 CY 45,700 T 25,000 T

55% 20,700 T

45%

OPPD North Omaha

Station (1) 930,000 CY 106,000 T 101,760 T

95% 4,240 T

5%

Grand Island Platte Generating Station (2) 40,572 CY 20,071 T 17,323 T

86% 2,748 T

14% Hastings Utilities Whelan Energy

Center (2) 820,000 CY 115,747 T 69,747 T

60% 47,000 T

40%

OPPD Nebraska City Station #1 (2) 3,300,000 CY 129,600 T 76,464 T

60% 53,136 T

40%

OPPD Nebraska City Station #2 (3) 3,936,000 CY 252,240 T 0 252,240 T

100%

TOTALS 19,934,397 CY 880,458 T 409,594 T

47% 470,864 T

53%

% Equals the percenta ge of the total amount of ash generated.

1 The amounts of bottom ash and fly ash generated, ma rketed and landfilled are annual quantities based on an average of 4 to 5 years of data.

2 The amounts of bottom ash and fly ash generated, ma rketed and land filled are annual quantities based

on data from the facil ity projections in 2006.

3 This facility was recently permitted and the amounts of ash marketed for beneficial use have not been determined. Therefore 100% of the amount ge nerated is reported to be land filled.

The above information was generated in March of 2010 by the Nebraska Department of Environmental Quality, Waste Management Section. The data was gath ered from the permit applications on file for each

of the facilities. Annual variable rates of ash generated and available markets have a direct effect on the amount of ash that will be deposited in the landfills. Much of the ash that is placed in th e landfills will be removed and marketed for beneficial use. Also, a la rge amount of ash is gene rally marketed prior to going to the landfills.Attachment F



# N EBRASKA 

# D EPARTMENT OF



# E NVIRONMENTAL 

# Q UALITY



# E NVIRONMENTAL 

# G UIDANCE 

# D OCUMENT

06-212 April 2007


## Beneficial Use of Coal Combustion By-Products, Steel Manufacturing By-Products, a nd Other Similar Materials

The Nebraska Department of Environmental Quality (NDEQ) receives, on a regular basis, requests from businesses and industry to determine if a particular waste is or can be classified as a "beneficial use" material. Specifically, the Department has receive d inquiries regarding the suitability of beneficialuses of coal combustion by-products (fly ash and bottom ash/boiler slag), steel manufacturing byproducts, and other similar wastes.

Title 132 - Integrated Solid Waste Management Regulations require that solid waste be disposed at a permitted solid waste management facility. Chapter 2, Section 002 of Title 132 allows exceptions to this requirement provided the materials used are not mixed with other solid wastes and do not as a result of handling or disposal have the potential to cause contamination that may threaten human health or the environment. Exceptions allow for th e use of fill for the purpose of erosion control, erosion repair, channel stabilization, landscaping, roadbed preparation, or other land improvement. Also it allows for the use of source-separated mate rial in the manufacturing of other products. If a
material is characterized as a hazardous waste, it cannot be used for these beneficial use purposes.

The Department has developed the following guidance with respect to the beneficial use of coal combustion by-products, steel manufacturing by-products and other similar materials. The beneficial uses identified below, are based upon the Department's determining there is no apparent threat to human health or the environment from the use of these materials. The Department's review and determination does not include an evaluation of the engineering properties of these materials. Any determination regarding the ability of these materials to meet specific design criteria applications must be made by a qualified professional.

COAL COMBUSTION BY-PRODUCTS The following legitimate uses of coal combustion by-products are not regulated under Title 132 and therefore, do not require prior approval from the NDEQ Waste Management Division. Coal combustion by-products used for these processes must meet the exemption requirements of Title 128 - Nebraska Hazardous Waste Regulations , Chapter 2, 009.03

.Attachment F

1 Construction or manufacture of products . Examples would be mixing concrete with fly ash or using fly ash or another similar material as an aggregate in concrete or asphalt for the construction or manufacture of roads, poles, block, etc.

2 Hazardous waste stabilization . Owners or operators of all facilities which use coal-combustion by-products for hazardous waste stabilization must comply with Title 128 - Nebraska Hazardous Waste Regulations , Chapter 20, Land Disposal Restrictions.

3 Ice control . This applies specifically to ice control applications (ice jams) in rivers. A permit under the National Pollutant Discharge Elimination System (NPDES) must be obtained from the Department prior to initiating this activity.

4 Stabilizing agents and soil modification , such as base/subbase/subgrade under concrete, asphalt, armor coat, sand-gravel/limestone surfaces and roads, parking lots, or building sites.

5 Aggregate for roads , such as armor coat and chip seal aggregate.

6 Structural fill . This may include backfill of utility trenches and behind foundation walls, buildup of grade or as an embankment for roadways/overpasses.

7 Controlled density/slurry fill , as used for the closure of pipelines, tanks, sewers, and other

similar structures.

8 Soil amendment . This refers specifically to the land application of fly ash to neutralize soil acidity. The fly ash should have a calcium carbonate equivalence of at least 20%. The fly ash application rate should be based upon the neutralizing capacity of the fly ash used and the amount of fly ash required to raise the soil pH to an optimum level (pH 6.5 to 7.0). The application rate should not exceed 10 tons per acre in any single annual application.

9 Feedlot applications . Coal combustion by-products may be used for feedlot applications such as construction and maintenance of feedlot lanes and pens provided steps are taken to insure that surface and ground water will not be impacted.

S TEEL MANUFACTURING BY-PRODUCTS

The following legitimate uses of steel manufacturing by-products, such as slag, spent refractory, and scale are not regulated under Title 132 and theref ore do not require prior approval from the NDEQ Waste Management Division. Steel manufacturing by-p roducts used for these processes must meet the exemption requirements of Title 128 - Nebraska Hazardous Waste Regulations , Chapter 2, 009.03

.

1. Construction or manufacture of products . Examples would be mixing concrete with steel manufacturing by-products, or using steel manufacturing by-products as an aggregate in concrete or asphalt for the construction or manufacture of roads, poles, block, etc.

2. Stabilizing agents and soil modification , such as base/subbase/subgrade under concrete, asphalt, armor coat, sand-gravel/limestone surfaces and roads, parking lots, or building sites.

3. Aggregate for roads , such as armor coat, chip seal aggregate and loose aggregate.

4. Anti-skid (snow and ice) control aggregate on roadways.

5. Railroad ballast to prevent erosion and stabilize/fix ties in railroad beds.Attachment F

EVALUATION PROCESS FOR OTHER USES OF THESE AND OTHER SIMILAR

MATERIALS

The use of coal combustion by-products, steel ma nufacturing by-products and other similar materials for purposes other than those described above will be reviewed by the Department on a case-by-case basis. The Department encourages individuals or facilities to explore beneficial uses for the management of wastes. The legitimate reuse or re cycling of a waste or material is a viable and recommended means of managing waste provided the ultimate end use of the material does not constitute disposal.

The following criteria will be used by the Department on a case-by-case basis to review use requests.

1. Does the material exhibit regulated hazardous waste characteristics? If so, it cannot be used as a beneficial use material, and must be handled acco rding to applicable regulations in Title 132 and

Title 128 - Nebraska Hazardous Waste Regulations

. 2. Is the material contaminated with other wastes? The Department considers a material to be

contaminated if it contains waste materials in concentrations that threaten human health or the

environment.

3. Does the material pose a potential threat to human health or the environment? In making this evaluation, several factors will be considered including, but not limited to:

a) Types of potential contaminants that may be present and any special handling requirements, health concerns or warnings, or environmental impacts associated with the material as identified in published data, Material Safety Data Sheets (MSDS) or past analytical data. b) Analytical data, which would determine the type and concentration of any potential contaminants present. Test methods to evaluate this criteria could include: total metals, volatile organic compounds (VOCs), semivolatiles, pesticides, polychlorinated biphenyls (PCBs), petroleum hydrocarbons, or any other test method deemed necessary to characterize the waste stream. c) Leachability fate and transport characteristics of the material in question. Test methods to evaluate these
criteria could include, but not be limited t o, American Society of Testing Materials (ASTM) Test Number D3987-85 (water leach test) and/or the Toxicity Characteristic Leaching Procedure (TCLP) in compliance with EPA SW-846 Methods, dependent upon the constituent of concern. In the case of materials or wastes that will be "fixed" or "treated" prior to use, the testing should be done after the material is fixed or treated. The terms "fixed" and "treated" imply that the waste is processed in some manner to reduce or eliminate the constituent of concern or its potential to threaten human health

or the environment.Attachment F

Note: Information collected can be from recent sampling or historical data, but it must be representative of the material or constituent in question. In evaluating whether the material poses a potential threat to human health or the environment, the constituents to be released to the environment will be compared to the numerical standards of the maximum concentration levels (MCLs) as identified in Department regulations, including but not limited to, Title 117 - Nebraska Surface Water Quality Standards and Title 118 - Ground Water Quality Standards

and Use Classification . The data may also be compared to EPA Region 9 Preliminary Remediation Goals to evaluate whether the material poses a potential threat to human health or the environment through other exposure pathways besides ground water and surface water.

1. What are the site-specific conditions? Provide data, which adequately describes the geologic and hydrogeologic conditions of the beneficial use area. Also, provide a description of the proposed use of the material at the site and whether any engineering design features will be used.

2. Does the end use of the material constitute disposal? For those materials in which it has been demonstrated that the constituents of concern have been identified and analyzed and are below established MCLs, maximum contaminate level goals, or other recognized published data, the Department will evaluate the acceptability of the pr oposed use of the material in light of those applications in which the ultimate end use may constitute disposal. The use of the material must serve a bonafide function and exhibit performance qualities similar to commercial or natural products commonly used for the same functions.

Fo r more information, contact MoreInfo@NDEQ.state.NE.US

Nebraska Department of Environmental Quality 1200 "N" Street, Suite 400 PO Box 98922 Lincoln, Nebraska 68509 (402) 471-2186 FAX (402) 471-2909