Detailed Comments from the State of Nebraska 

Regarding EPA Proposed Rule 

Hazardous and Solid Waste Management System; Identification and listing of 

Special Wastes; Disposal of Coal Combustion 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 information 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 adequacy of state regulation is one of the 

key issues before the Agency, as it will 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 specifically solicits information, whether from 

state regulatory authorities or from members 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 Conclusions and Impact of Reconsideration 

p. 35157 Specifically, EPA intends to consider how state regulatory programs 

have, in practice, evaluated and imposed requirements to address: (1) Leachate 

collection; (2) groundwater monitoring; (3) whether a unit must be lined, and the 

type of liner needed; (4) the effectiveness of existing management units as 

opposed to new management units; (5) whether the state requires routine analysis 

of CCRs; (6) whether financial responsibility requirements are in place for the 

management of CCRs; (7) the extent of permit requirements, including under 

what authorities these disposal 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 for siting new units; (9) the extent of 

requirements for corrective action, postclosure monitoring and maintenance; (10) 

the state’s pattern of active enforcement and public involvement; and (11) 

whether or not these facilities have insurance against catastrophic failures. 

Directly related to the level of risk presented by improper 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 Integrated Solid Waste Management Act, and the 

Solid Waste Disposal Act. 

The Environmental Protection Act, among other things, establishes the NDEQ’s rule 

making authority, permitting authority, and enforcement authority. The Integrated Solid 

Waste Management Act provides the primary statutory 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 regulations for the permitting of CCR landfills are 

closely patterned after the 40CFR Part 258 requirements for municipal solid waste 

landfills. However, some of the requirements 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 applied to landfills and surface impoundments 

(Title 132 does not make a distinction between the two types of facilities, 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 landfills 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 approval from the governing body where the facility 

plans to be located. If the facility is owned by a public utility a shortened process applies. 

The local siting approval process includes: addressing several siting criteria (listed 

below), notice to property owners, filing requirements and a public hearing. Siting 

approval shall be granted only if the proposed area or facility meets all of the following 

criteria: 
1. The solid waste disposal area is necessary to accommodate the solid waste 

management needs of the area which the solid 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 welfare will be protected. The applicant shall 

provide an evaluation of the potential for adverse health effects that could result 

from exposure to pollution, in any form, due to the proper or improper 

construction, operation, or closure of the 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 waste disposal area is designed to minimize 

the danger to the surrounding area from fire, spills, or other operational accidents; 

5. The traffic patterns to or from the solid 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 demonstrating 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 application 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: APPLICATION PROCEDURES: HEARINGS 

REQUIRED. Chapter 2 outlines the general permit application procedures that include 

requirements for the content of the application; signatures; procedures for information 

requests related to the permit application review; general permit conditions; 

transferability of permits; issuance or denial 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 FOSSIL 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. Description of current and 

projected use of water resources in the potential zone of influence of the site; distance to 

groundwater; potential interrelationship of local aquifers and surface waters; water 

quality; soil and bedrock depths; potential for leachate generation; ground water 

condition; surface water locations; land use and population density; distance to highways; 

distance to flood plains; inventory of wetlands; and requirements related to unstable 

areas. A permit will not be issued if this information 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 requirements are: must be 

protective of human health and the environment; and not result in pollution of the waters 

of the state. If the fossil fuel combustion ash disposal area was built or laterally 

expanded after October 1, 1993 additional requirements for liner design and construction; 

leachate collection and treatment system; construction quality assurance plan for 

engineered containment system; and 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 regulations, 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 barriers, natural barriers, supervision, 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 cover; fugitive dust control; and 

an operational plan. The operational plan must include: hours of operation; sources and 

types of fossil fuel combustion ash to be received, 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 notification plans. The final cover must meet 

specific criteria with final grades and side slopes which prevent run-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 structures and signage must be performed and 

maintained. Maintenance and operation of any existing leachate collection system and 

other environmental control features must continue. Semiannual sampling and testing of 

any existing groundwater monitoring well systems, with the results reported to the 

NDEQ. The length of the post closure care period may be increased if the NDEQ 

determines that a lengthened period is necessary to protect human health and the 

environment. 

Title 132, Chapter 7-GROUND WATER MONITORING AND REMEDIAL ACTION. 

Chapter 7 addresses the requirements for groundwater monitoring for all solid waste 

disposal areas including those for CCR. Details include location, number, spacing and 

depths of the monitoring systems. Groundwater monitoring plans include sampling and 

analysis procedures to ensure monitoring results 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 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. 

Title 132, Chapter 8-FINANCIAL ASSURANCE 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 requiring 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 third party to conduct postclosure care for the solid waste disposal area in compliance with the post-closure plan. 

Allowable mechanisms include trust funds, surety bond guaranteeing payment or 

performance, letter of credit, insurance, corporate financial test, local governments 

financial test, corporate guarantee, local government guarantee, or other state-approved 

mechanism. Facilities may also use a combination of mechanisms to satisfy the need for 

financial assurance. In addition to financial assurance for closure and post-closure care 

financial assurance can also be required for investigation or corrective action. The 

Integrated Solid Waste Management Act requires the owner or operator of a landfill to 

undertake corrective action in the 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 following public notice and hearing. 

Following submittal of the complete permit application the NDEQ performs a detailed 

review of the application to determine if it satisfies the requirements of Title 132. When 

the application is administrative complete 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 application and preliminary decision, and also 
request a hearing. Following the comment period or any hearing a final decision is 

issued. The final decision may be to deny the application, approve, or approve the 

application with modifications after taking into account public comment. A contested 

case hearing can be requested by any aggrieved 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 the NDEQ has inspected the site to ensure 

construction conforms to the approved application and after the final 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 unannounced annual inspections, comprehensive 

inspections at the time of permit renewal, and inspections initiated 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 or unsatisfactory conditions at the site, see Attachment B. If 

the facility is out of compliance with the approved permit application, the NDEQ will 

initiate procedures for the facility to come back into compliance. 

The findings of the annual inspections are documented and a report is prepared and sent 

to the facility. If a violation is found a Letter of Warning (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 there is a concern about how a CCR landfill is 

constructed or operated. Typically 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 staff, including a geologist and financial 

assurance coordinator. Permits cannot be renewed 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 detailed information regarding the 

states’ historic practice in implementing its existing requirements, including for 

example, the states’ record of enforcement and its practice in providing for public 

participation in the development and implementation 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 the units into which CCRs are currently 

disposed (approximately 90%). 

The State of Nebraska currently has seven CCR landfills, all of which are permitted and 

inspected by NDEQ. One new landfill is under construction. Five 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 regulatory definition they would be 

classified as surface impoundments. These two surface impoundments are excavated 

earthen structures and therefore are not subject 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 construction is being constructed with a 

composite liner system. All sites have an approved groundwater monitoring program. 

Liners are required for new or lateral expansions 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 consisted 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 Conclusions and Impact of Reconsideration 

p.35157 EPA is also soliciting comments on the extent to which the information 

currently available to the Agency reflects current industry 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 are designed and monitored, and what, if 

anything, they have detected. 

Attachment D details the current information on groundwater monitoring at the CCR 

landfills in Nebraska. Chapter 7 of Title 132 addresses the requirements for groundwater 

monitoring for all solid waste landfills, including those which accept fossil fuel 
combustion ash. Details include location, number, spacing and depths of the monitoring 

systems. Groundwater monitoring plans include 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 procedural difficulties for state programs, and measures that 

EPA might adopt to try to mitigate these effects. 

Nebraska’s regulations for CCR management are contained in Title 132 – Nebraska 

Integrated Solid Waste Management Regulations. Nebraska has been implementing 

these regulations for nearly 17 years. New federal rules for management of CCR under 

Subtitle D would probably require some rule making changes to Title 132 involving some 

extra expenditure of resources, but could probably be absorbed by the existing program. 

Adopting flexibility in the federal rules under a Subtitle D approach similar to the 

flexibility provided for in the federal MSWLF 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 landfills, and for all other point source pollution occurrences. 

Appended to Title 118 is Appendix A, Ground 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 process laid out under 40CFR Part 

258 for municipal solid waste landfills even though the regulations were not the same. If 

EPA adopts a prescriptive approach in performing corrective action without any 

allowance for flexibility, adopting the program would create procedural difficulties. 

Adopting flexibility for states that have permit programs for CCR landfills or other 

regulatory structure to address corrective action at CCR landfills would help mitigate the 

procedural difficulties. 

If EPA adopts a Subtitle C approach it is unlikely that Nebraska would be able to adopt 

the program. NDEQ does not have the resources 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 Legislature. In addition NDEQ 

is not authorized for corrective action in its hazardous waste program. 
It would be helpful if EPA would clarify in its final rule how state voluntary cleanup 

programs might be used to address corrective action found necessary at CCR landfills 

under either a Subtitle C or Subtitle D approach. 

p. 35158 Therefore, EPA solicits detailed information on this topic, to aid in 

further quantifying the extent to which existing capacity may be insufficient. For 

example, EPA is interested in detailed 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 landfills 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 portion is landfilled versus beneficially used. 

Attachment E – Nebraska Coal Combustion Sites 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 scenario, we believe that most states 

should be able to address any shortfalls through hazardous waste generator or 

disposal fees. EPA specifically solicits comments 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 waste 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 STAG funding to help mitigate funding issues 

related to a Subtitle C approach, NDEQ would not be able to add FTEs to implement the 

program. 

D. EPA Is Not Reconsidering the Regulatory 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 waste program it received on a regular basis, and 

still does today, inquiries from businesses and industry regarding the suitability of 

beneficial uses of coal combustion by-products, steel manufacturing by-products, and 

other similar wastes. In response to these inquiries Nebraska developed a guidance 

document, Attachment F, which outlines a review and approval process that businesses 
and industry must follow in order to take advantage of the exception from disposing of 

the materials in a solid waste landfill. 

In addition to outlining a review and approval process for the beneficial use of these 

materials, 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 materials had already been conducted. Provided 

the materials are used in the manner prescribed, no additional evaluation or requirements 

are warranted. 

Use of coal combustion by-products in a manner other than the nine beneficial uses 

identified in the guidance document without first undergoing the review and approval 

process identified in the guidance 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 security implications with the requirement 

to post information on an internet site and whether posting certain information 

on the internet may duplicate information that is already available to the public 

through the state.

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 facility maintain an operating record at the 

facility or at an alternative location approved 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 permit file that is accessible to the public. 

Therefore the use of an internet site would be duplicative and unnecessary. If a state 

implements a permit program with requirements for maintaining an operating record, 

notification requirements to the state, and allows access to permit documents then the 

notification requirements proposed by EPA in this rule should be waived. 

Definitions 
Independent registered professional engineer or hydrologist 

p. 35197 EPA seeks comment on the proposed reliance on independent 

professionals in implementing the proposed flexibility of performance 

standards.

NDEQ’s permit program defines a “qualified ground water scientist” in the same manner 

as proposed in EPA’s rule. Reliance on these professionals in implementing the proposed 

flexibility of performance standards is appropriate. In addition, if a state implements a 

permit program with these requirements it would be appropriate to allow the additional 

flexibility for alternative standards as allowed for municipal solid waste landfills found in 

40CFR Part 258. The citizen lawsuit provision would still be available and a state permit 

program would provide an additional level of oversight on the facility and the 

professionals they utilize. 

Differences in Location Restrictions 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 and additional data and information 

regarding the extent to which existing 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 the extent to which facilities could 

comply with these performance standards, and the necessary costs that would 

be incurred to retrofit the unit 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 distinguish between landfills or surface 

impoundments. For purposes of permitting, both are considered to be “disposal areas” 

and are subject to the same regulatory requirements. NDEQ’s regulations use the term 

“fossil fuel combustion ash” which is equivalent to EPA’s term of CCR. NDEQ 

regulations do not have locational 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 relevant to the permitting process. Presented 

below are the locational criteria utilized in NDEQ’s permit program as excerpted from 

the regulations. NDEQ notes that EPA’s proposed locational criteria are similar to 

NDEQ’s and believes these criteria are protective of the environment. 

“002 Locational Criteria. New fossil fuel combustion ash disposal areas and lateral 

expansions of existing fossil fuel combustion 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 disposal 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 having 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 include, a description of the: 

002.02A Soil and bedrock to a depth adequate to allow evaluation 

of the water quality protection provided by the soil and bedrock; 

002.02B Potential for leachate generation, and of pollution of the 

waters of the state; 

002.02C Ground water condition, including 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 facility within one mile of the 

facility boundaries. 

002.03 No person shall locate a fossil fuel 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, plantings, fences, or other appropriate 

means so as to not be visible from such highway. 
002.04 Floodplains. A new fossil fuel combustion 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 the 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 combustion ash disposal area 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 engineering 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 or 
substantial 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 Landfills and Surface Impoundments. 

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

should allow facilities to use an alternative design for new disposal units, so long 

as the owner or operator of a unit could obtain certification from an 

independent registered professional engineer or hydrologist that the alternative 

design would ensure that the appropriate concentration values for a set of 

constituents typical of CCRs will not be exceeded in the uppermost aquifer at 

the relevant point of compliance—i.e.,150 meters from the unit boundary down 

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

(i.e., the monitoring well) is beyond the property boundary.

NDEQ’s permit program allows for alternative liner design demonstrations that are 

equivalent to the requirements for municipal solid waste landfills under 40CFR Part 258 

and believes this is a reasonable and protective 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 and 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 and corrective action requirements for 

MSWLFs and CESQG facilities, as modified 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 comments 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 certification 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 municipal solid waste landfills under 40CFR Part 

258. Accordingly, NDEQ believes this is a reasonable 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 make the modifications proposed in the rule 

(from the 40CFR Part 258 approach). A state permit program provides an additional 

level of oversight to the use of licensed professionals and citizen lawsuit provisions. 

NDEQ’s corrective action requirements 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 landfill permit program EPA determined that 

NDEQ’s corrective action requirements 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 flexibility to states with different regulatory 

approaches for ground water protection and corrective action to utilize their existing 

regulatory structure. To establish different standards for municipal 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 whether 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 Financial 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 approach 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 municipal solid waste landfill permit program. 

Financial assurance is important to ensure money is available to complete closure, postclosure care, and corrective action. EPA should 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 requirements 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 additional flexibility in design and 

ground water monitoring afforded to them under 40CFR Part 258. If EPA limits the offsite disposal to facilities that meet the minimum standards that EPA is proposing in this 

proposed rule then those municipal solid waste landfills that are utilizing alternate 

designs or ground water monitoring would be excluded from receiving CCRs. In doing 

so the capacity for managing CCRs in Nebraska would unnecessarily be decreased. 

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

p.35223 Whether the subtitle D option, if promulgated, should allow facilities to 

use alternative designs for new disposal units, so long as the owner or operator 

of a unit could obtain certification from an independent registered professional 

engineer or hydrologist that the alternative design would ensure that the 

appropriate concentration values for a set of constituents typical of CCRs will 

not be exceeded in the uppermost aquifer at the relevant point of compliance 
(i.e., 150 meters from the unit boundary down gradient from the unit, or the 

property boundary if the point of compliance is beyond the property 

boundary). 

NDEQ’s permit program allows for alternative liner design demonstrations that are 

equivalent to the requirements for municipal solid waste landfills under 40CFR Part 258 

and believes this is a reasonable and protective approach in states that have permit 

programs that adopt these same requirements. The permit application process and 

regulations require the utilization of an independent professional engineer registered in 

the State of Nebraska. 

If EPA believes that certification from an independent registered professional engineer or 

hydrologist does not provide enough assurance that alternative designs would be 

protective it might consider the approach taken 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 “Director 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 State permit program to approve the design, 

consider factors in approving the design, and specifying the relevant point of compliance. 

The “State permit program” could have a definition similar to: “State permit program 

means a permit program implemented by a State agency that adopts and implements the 

minimum requirements for the disposal of coal combustion residues outlined in this final 

rule.” 

A similar approach might also be considered to allow flexibility for the location 

restrictions, operating criteria, ground-water monitoring 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 enforcement through citizen suits under RCRA section 

7002 or by EPA under RCRA section 7003. In addition, taking such an approach would 

allow states to utilize their own enforcement authority and not rely upon the citizen suit 

authority under RCRA section 7002. And, allowing states to consider the alternative 

approach to designs, ground water monitoring, etc. 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 protective of human health 

and the environment. 
The Subtitle D Prime option would be the preferable 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 results demonstrate that the facility has not 

impacted ground water. Requiring this facility to either close or retrofit with a composite 

liner system would be costly and yield no greater environmental benefit. 

Damage Cases 

p. 35224 The report of additional damage cases submitted to EPA on February 

24, 2010 by the Environmental Integrity Project and EarthJustice. 

 

NDEQ is aware that the Environmental Integrity 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 and clarification of the conditions at the 

landfill identified in the report. 

Sheldon Station Ash Pit #3 

The Environmental Integrity Project, Earthjustice, and the Sierra Club have identified the 

closed fossil fuel combustion ash (FFCA) landfill at Sheldon Station (Coal Ash Pit #3) as 

a damage case in a recently released report titled “IN HARMS WAY: Lack of Federal 

Coal Ash Regulations Endangers Americans and Their Environment.” Most of the 

information in the report is accurate regarding 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 District 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 potential or proven damage 

case as defined by EPA. Further investigation is necessary in order to arrive at those 

conclusions. 

The following provides some background 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 substances is being considered in evaluation of the site, as 

well as the possibility of a localized discharge of cooling tower water used for fire 

suppression or similar activity involving power plant operations. 

Site is Closed in Post-Closure Monitoring Status and Regulatory 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 engineered liner. This site was constructed in 

1989 prior to promulgation of the regulations that 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 compacted clay liner, a leachate collection system, 

and an evaporation pond. None of the seven monitoring wells associated with the active 

site have shown any indications of a possible release. 

Conditions Unlikely to Impact Useful Water-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 within 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. thick, low permeability clay layer. Ash Pit #3 

was constructed above a shallow aquifer consisting of glacial till. The glacial till is 

underlain by a high-density clay layer that acts as a protective barrier above the lower 

regional aquifer which is the zone used for 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 currently not a public health threat. 

Regulatory and Enforcement Perspective

The site continues to be monitored 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 what further steps should be taken to ensure 

that private wells within any reasonable distance of the site are not adversely impacted. 

The owner/operator has agreed to install additional 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 facility’s owner/operators were 

not complying with the NDEQ’s recommendations, 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 federal regulations and the definitions are not identical, 

the definition in the Nebraska Statutes 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 scientific 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 held 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 operating 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 result 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 circumstances. The written submission shall contain a description of the 

noncompliance and its cause; the period(s) of noncompliance, including exact dates and times; whether the 

noncompliance has been corrected; and if not, the anticipated time it is expected to continue; and steps 

taken or planned to reduce, eliminate, and prevent recurrence 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 existing and available facility records, and shall allow 

Department inspectors entry and access, during reasonable 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 until 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 application 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 writing 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 specified 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 assurance in accordance with Title 132, Chapter 8. 

14. The Permittee shall submit any proposed Permit modifications 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 into 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 hundred eighty days prior to the expiration date of this 

Permit a current topographic map of the disposal area 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 

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

 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 accordance 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 areas used for storage of waste are designated 

for said purposes 

004.07 Bulk or non-containerized 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 waste 
 PRE-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 C

Name Location Lined sluice 

NPPD Hallam 

Sheldon St.(Closed) No NO 

Sheldon St.(active) 3' of 10-7 clay 

Modeling showed no prescriptive cap needed 

NPPD 

Gerald Gentleman

Sutherland Active portion of landfill not having intermediate cover is 

presciptive lined

No longer 

sluices 

 (2' of 10-7 clay overlaid w//FML w/ protective cover)

OPPD Omaha No No 

North Omaha

OPPD Nebraska

Nebraska City station City No No 

NC-2 (new landfill Prescriptive lined (2' of 10-7 clay overlaid w//FML) No 

being constructed) 

Grand Island Grand Island No No 

Platte Generation Station

Hastings Utilities Hastings No Yes 

Fremont Utilities Fremont Prescriptive lined (2' of 10-7 clay overlaid w//FML) Yes 

Permitted Fossil Fuel Disposal Areas
Attachment D

Permitted FFCA Disposal Facility: Since: Parameters: Stastically Significan

Fremont Utilities - Lon D. Wright Power Plant Aug 1998 Gross Alpha in addition to Metals and Inorganics None

GI Platte Generation Jun 1999 Metals & Inorganics Sulfate, below MCL, in NPPD Gerald Gentleman, Ash Pit #4 Active, Sutherland Jan 1996 Metals & Inorganics NoneNPPD Sheldon Pit #3 Post Closure, Hallam Dec 1999 Metals & Inorganics Sulfate (also Selenium > 

NPPD Sheldon Pit #4 Active, Hallam Jan 2003 Metals & Inorganics NoneOPPD NE City Mar 2000 Metals & Inorganics Sulfate, below MCL, in 

assessment monitoring.

OPPD NE City - New Cell Construction Permit N/A This new area has not been constructed yet. N/A

OPPD No. Omaha May 2001 Metals & Inorganics Arsenic, Cadmium, Sele

MCLs, determined to be 

Whelan Energy Center, Hastings Jan 2002 Metals None

Typical/Range of Permitted Detection-Indicator Parameters:

Metals and Inorganics

Aluminum, Antimony, Arsenic, Barium, Beryllium, Boron, Calcium,Cadmium, Chromium, Cobalt, Copper, Iron, Lead, Mercury, Nickel,Selenium, Silver, Sulfate, Thallium, Vanadium, Zinc

Note: Each of the facilities perform analysis for a subset that includes a 

majority of the above listed parameters.

* The facilities with SSIs are trying to demonstrate that the SSIs r(i.e., natural variation in groundwater quality or errors in samplingevaluation).
Attachment E 

Nebraska Coal Combustion Sites 

Capacities and Beneficial Use of Ash 

Name 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 percentage of the total amount of ash generated. 

1

The amounts of bottom ash and fly ash generated, marketed 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, marketed and land filled are annual quantities based 

on data from the facility 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 generated 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 gathered 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 the landfills will be 

removed and marketed for beneficial use. Also, a large amount of ash is generally marketed prior to 

going to the landfills. 
Attachment F 

NEBRASKA DEPARTMENT OF 

ENVIRONMENTAL QUALITY 

ENVIRONMENTAL GUIDANCE DOCUMENT 

06-212 April 2007 

Beneficial Use of Coal Combustion By-Products, Steel 

Manufacturing By-Products, and 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 received inquiries regarding the suitability of beneficial 

uses 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 the 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 material 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. 

STEEL 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 therefore do not require prior approval from the NDEQ 

Waste Management Division. Steel manufacturing by-products 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 manufacturing 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 recycling 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 according 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 to, 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 proposed 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. 

For 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