Proposed

State of Kansas

Coal Combustion Residuals

Part 256 Plan

Draft dated 6/308/24/2015
Table of Contents

Chapter 1 - Introduction...............................................................................................................1

Chapter 2 - Compliance with General Part 256 Plan Requirements............................................34

Chapter 3 - Implementation of the CCR Rule in Kansas.............................................................810

Appendix A - Referenced Bureau of Waste Management Statutes, Regulations, and Policies

Appendix B - Referenced Division of Water Resources Statutes and Regulations

Appendix C - Referenced Department of Administration Statutes
Chapter 1

Introduction

Background

In the early 1980s, Kansas and other states prepared state solid waste management plans in 

accordance with the requirements set forth in 40 CFR Part 256 – Guidelines for Development 

and Implementation of State Solid Waste Management Plans. These plans were primarily to 

ensure that states would move forward to eliminate open dumps and establish environmentally 

sound ways to dispose of all types of solid waste and reduce the volume of solid waste disposed 

of in landfills. While references to a Kansas plan have been identified, neither the U.S. 

Environmental Protection Agency (EPA) nor the Kansas Department of Health and Environment 

(KDHE) has a copy of that plan, nor a record that EPA approved of that plan.

On April 17, 2015, EPA published recently adopted regulations in 40 CFR Parts 257 and 261 

related to the “Disposal of Coal Combustion Residuals from Electric Utilities” (the CCR rule).

These new federal regulations are self-implementing and will go into effect regardless of state 

decisions to adopt and enforce the new requirements. Furthermore, EPA has stated in the 

preamble to this CCR rule that there is “no explicit mechanism for EPA to officially approve a 

state program.” Consequently, the standards set in the federal CCR rule will gradually become 

effective in states that may have their own solid waste regulations governing coal combustion 

facilities. Rather than have two separate sets of regulations applicable to these facilities, EPA is 

strongly encouraging states to adopt these new regulations. States may maintain or add additional 

requirements that are more stringent or broader in scope than the minimum standards set forth in 

the federal CCR rule.

EPA has determined that the best available tool to demonstrate that states are regulating coal 

combustion residuals (CCRs) in a manner consistent with the new CCR regulations is through 

the state solid waste management plans prepared in accordance with Part 256. Therefore, EPA is 

also encouraging states to revise those plans, if available, or if not available, prepare a plan to

address the basic requirements of Part 256 with emphasis placed on how the state regulatory 

program will enforce all aspects of the CCR rule and any additional state-specific requirements.

In the 1970s and then again in the early 1990s, Kansas significantly modified state laws to ensure 

that all of the requirements of Part 256 were thoroughly addressed and officially codified in 

statute. Following the passage of those laws, multiple implementing regulations were adopted by 

KDHE which established applicable permitting, operating, inspection, and enforcement 

programs. The state laws that fully address the Part 256 plan requirements also direct KDHE to 

prepare a state solid waste plan to address emerging issues and priorities including waste 

reduction, public participation, local government responsibilities in local planning, and the 

sustainability of waste management systems. The first such Kansas solid waste management plan 

was prepared in the mid-1990s and that plan has been updated every five years. The most recent 

state plan was adopted in 2010. A plan update is due in 2015; however, EPA’s recommendation

to update the Part 256 plan has impacted that schedule.

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Purpose and Scope of this State of Kansas Coal Combustion Residuals Part 256 Plan

Based upon the background information presented in the previous section and the combined 

interests of KDHE, the CCR-regulated community, elected government officials, and the public,

KDHE prepared this new solid waste management plan for review and approval by EPA. The 

plan demonstrates KDHE’s intent and approach to assess compliance with and enforce the CCR 

rule in Kansas. This plan also addresses the original requirements of Part 256 solid waste 

management plans by explaining how existing state laws and regulations have accomplished the 

35-year-old goals required in those plans. This plan cites existing KDHE laws, regulations, and 

permit conditions that authorize KDHE to assess compliance and enforcement related to all 

aspects of the CCR rule. In addition, it explains the state’s intention to adopt the specific CCR 

regulations by reference over the next 12 to 18 months to more directly address all requirements.

This plan will not thoroughly address all “sustainability” issues covered by the recent Kansas

solid waste management plan; however, since waste reduction and resource recovery is a part of 

the Part 256 planning scope, there will be some reference to state activities in this area. To 

distinguish this plan from the more modern sustainability-focused plan, this plan will be referred 

to as the “State of Kansas Coal Combustion Residuals Part 256 Plan” or “Part 256 CCR Plan.”

The sustainability-focused plan will be called the “State of Kansas Comprehensive Solid Waste 

Management Plan”; this plan can be found on the KDHE Bureau of Waste Management web site 

at www.kdheks.gov/waste/.”. 

KDHE will review The Part 256 CCR plan will cover no less than a five-year time period, which 

will be set to coincide with the timeframe covered in future updates of the State of Kansas 

Comprehensive Solid Waste Management Plan. KDHE will review both plans no less frequently 

than every three years following the date of adoption to determine the need for revision and readoption.

Plan revisions, when necessary, will be a public process involving key stakeholders. The 

procedures will include a notice and public hearing, in accordance with the requirements of 40 

CFR 256.03 and 256.60.

Short-Term Plan to Implement a CCR Regulatory Program through Permits

Prior to receiving EPA approval of this new Part 256 CCR Plan and KDHE’s adoption of the 

specific CCR regulations, KDHE will enforce the CCR rule through existing permits held by 

each CCR-generating facility. Through meetings, site visits, and other correspondence that began 

in February of 2015, KDHE permit engineers, geologists, and scientists have assessed facility 

conditions and worked with facility representatives to identify facility upgrades, changes in 

operating practices, and/or changes to existing permits that are necessary to comply with the 

CCR rule. This collaborative effort will prepare facilities to be fully compliant as the new CCR 

regulatory deadlines arrive. It will also ensure that KDHE will have had an opportunity to 

provide important input to facilities prior to establishing official regulatory authority for all new 

requirements. These collaborative efforts will continue as this plan is reviewed and approved by 

EPA and as the regulation adoption process takes place through 2016.

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Long-Term Plan to Adopt the CCR Regulations

KDHE is moving forward to adopt the federal CCR regulations by reference during late 2015 

through 2016. This adoption process will follow or run simultaneous to the EPA review and 

approval process for this “State of Kansas Coal Combustion Residuals Part 256 Plan.” Other 

existing laws and regulations contain additional state requirements for CCR facilities that are 

broader in scope or more stringent than the minimum federal standards. The final adoption of 

the CCR regulations should not require updates to the facility permits or associated permit 

documents because all such requirements will be taken into consideration as permit documents 

are updated in 2015.

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Chapter 2

Compliance with General Part 256 Plan Requirements

History and Approach

The State of Kansas established a comprehensive solid waste regulatory program over multiple 

decades to thoroughly address the objectives of the state solid waste plan required by 40 CFR 

Part 256. State laws and implementing regulations accomplish all of the goals and requirements 

set forth in Part 256.

As explained in Chapter 1, Kansas prepared a plan in the early 1980s in response to the Part 256 

federal regulation, but a copy or record of that plan cannot be found by either KDHE or EPA.

Because state laws and regulations now address all aspects of the plan requirements, a new plan 

will not be prepared to address each section of Part 256 point by point. It would be of little value 

to prepare such a plan at this time because by definition, a plan establishes goals, objectives and 

strategies to accomplish things yet to be done.

With respect to the original Part 256 requirements, this Part 256 CCR Plan will explain how 

existing state laws achieve what the original plan would have set as goals and objectives. Some 

irrelevant parts of the original Part 256 requirements are not addressed, such as federal funding 

of state planning efforts. The focus of this assessment of state law as it relates to the Part 256 

planning requirements will be those areas identified in the preamble to the CCR rule published 

on April 17, 2015. These minimum requirements set forth by EPA for approval include:

1. Identification of the responsibilities of state, local, and regional authorities in the 

implementation of the plan and the means for coordinating regional planning and 

implementation;

2. Prohibition on the establishment of new open dumps and the requirement that all solid waste 

be utilized for resource recovery or disposed of in landfills meeting the minimum federal 

criteria;

3. Provision for the closing or upgrading of all existing open dumps; and

4. No prohibition on negotiating or entering into contracts for the supply of solid waste to 

resource recovery facilities.

In addition, this plan must address the state approach to enforcing the new federal CCR rule.

That enforcement strategy is provided in Chapter 3.

Kansas Solid Waste Laws and Regulations

In this chapter, the relevant state laws that accomplish the Part 256 goals and requirements are 

cited and briefly explained. Appendix A contains the cited laws. A detailed review of 

implementing regulations is not included because state laws adequately establish the system of 

solid waste planning, permitting, compliance assessment, and enforcement in Kansas. The 

implementing regulations provide further clarification and detail to help Kansans understand 

solid waste management requirements and establish a firm basis for KDHE compliance and 

enforcement decisions.

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Minimum Requirements of Part 256 Plan – § 256.01

This section addresses each of the four minimum plan requirements.

1. Identification of the responsibilities of state, local, and regional authorities in the 

implementation of the plan and the means for coordinating regional planning and 

implementation.

State policy recognizing the need for a thorough solid waste planning and regulatory program is 

set forth in Kansas Statutes Annotated (K.S.A.) 65-3401. This statement of policy includes 

support for the principles of resource conservation and recovery.

Numerous areas of state responsibility are addressed in K.S.A. 65-3406, which relates to the 

“duties and functions of the secretary.” This section of law establishes authority for the Secretary 

of KDHE to adopt rules and regulations with respect to many areas of solid waste management.

It addition, it directs KDHE to develop a state solid waste management plan and to assist 

counties and groups of counties to establish their own local or regional plans.

The state is also authorized by K.S.A. 65-3415 to administer a solid waste grant program to pay 

for part of the local or regional solid waste planning process. This grant program provided 

millions of dollars in aid to counties and regional planning groups in the 1990s to initially 

prepare plans.

K.S.A. 65-3405 establishes very detailed requirements for counties, designated cities, or regional 

groups of counties to prepare solid waste management plans. These requirements specify the 

need for local planning committees, local plan content, annual review and five-year update 

requirements, and local plan adoption procedures.

K.S.A 65-3410 gives cities and counties the authority to carry out solid waste management 

practices including the operation of facilities to process and dispose of solid waste. It also 

authorizes cities and counties to generate revenue to implement solid waste management plans 

by assessing fees on waste generators or residents in general.

2. Prohibition on the establishment of new open dumps and the requirement that all solid waste 

be utilized for resource recovery or disposed of in landfills meeting the minimum federal 

criteria.

K.S.A. 65-3402(j) defines open dumping as any disposal of solid waste in an area which is not 

permitted by KDHE. Permits for solid waste processing and disposal areas are granted by KDHE 

based upon a comprehensive set of laws set forth in K.S.A. 65-3407. K.S.A. 65-3409(a)(1) states 

that it is unlawful for any person to dispose of any solid waste by open dumping. In combination, 

these statutes prohibit the open dumping of solid waste in any unpermitted location. It is 

unlawful for solid waste to be delivered to any location that has not received a permit issued by 

KDHE. Permitted locations can be landfills or processors, including facilities designed to recover 

material and/or energy from solid waste.

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3. Provision for closing or upgrading of all existing open dumps.

The same statutory provisions listed in item 2, which require all solid waste to go to permitted 

solid waste processing or disposal facilities, serve as the basis for closing or upgrading all open 

dumps. The permitting laws of Kansas were initially established in the early 1970s. At that time, 

all old city dumps and industrial landfills were closed and/or gradually converted to permitted 

facilities. In 2015, there are no known operating open dumps. If an open dump is identified by 

KDHE, enforcement to close the facility will be initiated in accordance with K.S.A. 65-3409 and 

other statutes as appropriate. If any open dump has impacted, or threatens to impact, public 

health or the environment, KDHE can require appropriate corrective measures under the 

authority granted by K.S.A. 65-3411. Any new open dump that is identified is either cleaned up 

by the responsible party, cleaned up by the state in cooperation with local government, or closed 

in place with the approval of local government.

4. No prohibition on negotiating or entering into contracts for the supply of solid waste to 

resource recovery facilities.

In the early 1980s, in response to the original Part 256 requirements, Kansas passed laws to 

address the implementation of resource recovery operations in the state. Multiple statutes 

authorize local governments to become directly involved in providing resource recovery 

practices, to address ownership of collected waste, and to enter long-term contracts to recover 

energy and/or material from solid waste. The statutes that comprehensively address resource 

recovery include K.S.A. 65-3410, 65-3418, 65-3421, and 65-3423.

Other Part 256 Requirements

Kansas laws that specifically address other Part 256 plan requirements follow. If no state laws 

clearly address the requirements, the method that is followed by KDHE to satisfy those 

requirements is explained.

§ 256.02 - Scope of Part 256 Plans: The local county or regional planning process is 

comprehensively addressed by K.S.A. 65-3405 and implementing regulations. All local plans 

must address all solid waste types and all practices (transportation, processing, and disposal).

The local county/regional plans cover ten years and plans must be reviewed annually and 

thoroughly updated every five years. The state (KDHE) must report annually to the legislature 

regarding the status and adequacy of state laws and program revenue and make 

recommendations for changes to meet program needs.

§ 256.03 – Adoption and Revision of State Plan: K.S.A. 65-3406(a)(5) directs KDHE to develop 

a state solid waste management plan, but does not specify the administrative procedures to be 

followed to adopt that plan. The steps listed below describe the plan development and public 

participation processes leading to adoption of the Part 256 CCR Plan by the Secretary of KDHE:

• Notification of anticipated adoption or revision distributed via the KDHE Bureau of Waste 

Management newsletter or other means;

• Plan developed based upon federal requirements, state needs, and stakeholder input;

• Notice to adopt the plan posted on the KDHE web site, followed by publication and 

published in the Kansas Register;

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• Public comments received for at least 4530 days following posting of the notice on the web 

site, or at least 30 days after and publication in the Kansas Register, whichever is later ;

• Public hearing held at least 4530 days after posting the notice on the web site, or at least 30 

days after and publication in the Kansas Register, whichever is later. The reduced 

notification requirement for this Part 256 CCR Plan was approved by EPA, in accordance 

with 40 CFR 25.5(b) and 256.60(c), in a letter to KDHE dated August 6, 2015;

• Responsiveness summary prepared and, made available on web site, and sent to individuals 

who submit comments or request a copy. The responsiveness summary contains all 

comments received during the public comment period and hearing as well as KDHE’s 

response to comments;

• Plan finalized and adopted by the Secretary of KDHE.

• Adopted plan posted on KDHE web site.

Items noted above and other relevant information will be posted on the KDHE Bureau of Waste 

Management comprehensive solid and hazardous waste web site: www.kdheks.gov/waste/.

KDHE will issue press releases, if it is deemed appropriate, to solicit comments and/or announce 

the adoption of plans.

The plan will be reviewed every three years and revised and readopted when necessary.

§§ 256.10 and 256.11 – Responsibilities to Implement Solid Waste Plans Including Services 

Related to Solid and Hazardous Waste Management: Multiple state laws assign responsibilities 

related to implementation of waste management plans and compliance with relevant laws and 

regulations. K.S.A. 65-3405 assigns local solid waste planning responsibilities to counties or 

designated cities. Those plans must identify needed services and indicate whether local 

government or private sector businesses will provide those services. K.S.A. 65-3410 authorizes 

counties to raise revenue to implement local solid waste management plans. Solid waste facilities 

are prohibited from receiving regulated quantities of hazardous waste [K.S.A. 65-3402(a)]. This 

prohibition does not include household hazardous waste or conditionally exempt small quantity 

generator waste, which may be disposed of in municipal solid waste landfills and pass through a 

transfer station.

§§ 256.20 to 256.22 – State Regulatory and Enforcement Powers: The Kansas legislature has 

empowered KDHE to administer a comprehensive compliance and enforcement program 

beginning with the establishment of a broad list of unlawful acts [K.S.A. 65-3409], authorization 

to conduct compliance inspections [K.S.A. 65-3406 (a)(10)], authorization to issues permits and 

ensure compliance at all solid waste processing and disposal facilities [K.S.A. 65-3407], and 

authority to develop and enforce a broad range of very specific regulations related to many solid 

waste management practices [K.S.A. 65-3406]. As mentioned earlier in this chapter, these 

authorities include KDHE’s directive to close any identified open dumps and to administer 

permitting, inspection, and enforcement options to ensure that no waste is managed in open 

dumps.

§§ 256.30 and 256.31 – Encouragement of Resource Recovery Operations: As explained above 

under the fourth minimum requirement for a Part 256 Plan, Kansas state law establishes policies 

that encourage local governments to implement resource recovery practices including long-term 

contracts to process waste for reuse and recovery. In addition, the statutory statement of policy 

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encourages the wise use of waste as a resource [K.S.A. 65-3401(e)] and other laws facilitate the 

development of resource recovery projects and practices. For example, K.S.A. 65-3415 

authorizes KDHE to administer grant programs to assist local governments, non-profit 

organizations, and private businesses to start-up and enhance projects and programs related to 

recycling, composting, and household hazardous waste (HHW) collection. K.S.A. 65-

3415a(c)(9) authorizes KDHE to expend solid waste management funds collected primarily from 

a landfill tonnage fee to carry out public education and technical training on solid waste issues, 

particularly issues related to waste reduction and recovery. KDHE has utilized and will continue 

to use this spending authority, along with a statutory directive in K.S.A. 65-3406(a)(9), to carry 

out annual training in a statewide conference on recycling, composting, HHW, and energy 

recovery from waste. KDHE has also been statutorily directed to carry out research or studies 

related to solid waste management to enhance state practices including resource recovery 

[K.S.A. 65-3406(a)(7)]. This has included municipal solid waste compositions studies at 

landfills. Additional studies will periodically be carried out to assess the changing nature of the 

waste stream and the potential for improved waste recovery activities.

§§ 256.40 to 256.42 – Facility Planning: Kansas state law authorizes counties to plan for the 

types of solid waste facilities that are needed and that will be established to meet those needs, 

including both publicly and privately owned and operated facilities. The planning laws and 

authorities are specified in K.S.A. 65-3405. Local governments must also verify that any 

proposed solid waste processing or disposal facility is consistent with their local plan as part of 

the facility permit application process [K.S.A. 65-3407(m)]. The Kansas Legislature requires 

KDHE to perform an annual assessment of the state solid waste program including the adequacy 

of state funding to carry out the responsibilities set forth in state law. This reporting requirement 

is specified in K.S.A. 65-3415a(h). In 2013, a special assessment of statewide resources and 

recovery/waste reduction activities was required which involved: 1) the preparation of a written 

report submitted to the Legislature; and 2) a Legislative hearing on the adequacy of statewide 

practices [K.S.A. 65-3410b]. This report established an ongoing review process for KDHE to 

annually repeat the assessment of waste reduction adequacy.

§ 256.50 – Coordination with Other Programs: The Kansas solid waste program coordinates fully 

with the KDHE water and air programs. This coordination is specified in statute, regulation, and 

agency policy. Examples follow:

• It is unlawful to burn solid waste unless authorized under the Kansas Air Quality Act [K.S.A. 

65-3409(a)(4)].

• Any solid waste processing or disposal area that has a point source discharge must comply 

with a National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to 

K.S.A. 65-164 et seq. (Kansas Water Law). This requirement is specified in Kansas 

Administrative Regulation (K.A.R.) 28-29-23(q).

KDHE coordinates with other agencies and regulatory programs regarding solid waste facility 

location, design, and operation issues including: wetlands and floodplains (U.S. Army Corps of 

Engineers), the Kansas historic preservation act (Kansas State Historical Society), landfill gas 

(KDHE Bureau of Air), storm water permitting (KDHE Bureau of Water), and zoning (local 

government planning agencies). Comments on every landfill permit are also sought from: the 

U.S. Fish and Wildlife Service; the Division of Water Resources within the Kansas Department 

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of Agriculture (KDA); the Kansas Department of Wildlife, Parks and Tourism; the Kansas 

Biological Survey; the Kansas Corporation Commission; the Kansas Geological Survey; the 

State Conservation Commission within the KDA Division of Conservation; and Kansas Water 

Office.

§§ 256.60 to 256.65 – Public Participation: Public participation related to this state plan was 

addressed above under § 256.03 on adoption and revision. KDHE maintains a list comprised of 

people who have been identified as potentially interested in solid waste issues (e.g. county 

commissioners) and individuals who have requested to be placed on the list. These people 

receive a newsletter which includes information on planned updates to solid waste management 

plans when appropriate. County commissions are required to hold public hearings regarding 

county/regional plans prior to new or updated plan adoption actions [K.S.A. 65-3405(d)]. 

The state public participation process related to all solid waste permit actions has been 

established in state regulations based upon the department’s general authority to adopt rules and 

regulations related to the entire permitting process [K.S.A. 65-3406(a)(12)]. Public participation 

in the state regulatory process is established in the Kansas Rules and Regulations Filing Act 

[K.S.A. 77-415 through 77-438]. Both of these are discussed in more detail in Chapter 3.

There is no routine public notification or participation as part of KDHE’s solid waste program 

compliance and enforcement procedures because facilities typically come into compliance within 

30 to 60 days. When illegal disposal at an open dump is identified, local government officials are 

involved in the removal or closure decisions, unless the waste is promptly removed by the 

responsible party. Compliance and enforcement information is available to the public under the 

Kansas Open Records Act.

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Chapter 3

Implementation of the CCR Rule in Kansas

Introduction

This chapter of the “State of Kansas Coal Combustion Residuals 256 Plan” addresses the solid 

waste management plan requirements of 40 CFR Part 256 with respect to the disposal of CCR 

from electric utilities. This chapter also describes how Kansas will implement and enforce the 

standards contained in 40 CFR 257 Subpart D – Standards for the Disposal of Coal Combustion 

Residuals in Landfills and Surface Impoundments.

State Legal Authority

As described in Chapter 2, Kansas has adequate legal authority to prohibit the establishment of 

new open dumps and to close or upgrade existing open dumps. K.S.A. 65-3409(a) prohibits the 

disposal of solid waste, including CCR, by “open dumping”, as defined in K.S.A. 65-3402(j); 

K.S.A. 65-3419 provides enforcement authority for any violation of K.S.A. 65-3409(a). Since 

surface impoundments temporarily store solid waste, they are classified as solid waste processing 

facilities and therefore are not considered open dumps.

State Regulatory Powers

Kansas currently has authority to enforce disposal and management standards for solid waste,

including CCR, which are equivalent to or more stringent than the requirements of 40 CFR 257.

K.S.A. 65-3406 authorizes and directs the Secretary of KDHE to: adopt solid waste management 

regulations and standards necessary to protect the public health and environment; issue permits 

and orders; and conduct inspections. 

K.S.A. 65-3407 states that, with some exceptions: “...no person shall construct, alter or operate a 

solid waste processing facility or a solid waste disposal area of a solid waste management 

system, except for clean rubble disposal sites, without first obtaining a permit from the 

secretary.” CCR landfills fall under the definition of a solid waste disposal area in K.S.A. 65-

3402(d) and CCR surface impoundments fall under the definition of a solid waste processing 

facility in K.S.A. 65-3402(c); both are subject to the permitting requirement.

K.A.R. 28-29-7(a), regarding conditions of permits, states that the secretary shall stipulate: 

“...special operating conditions, procedures, and changes necessary to comply with these and 

other state or federal laws and regulations.”

In addition, each permit in place for electric utilities that are managing CCR contains the 

following general condition:

This permit is subject to modification by the department at the time of any 

scheduled renewal or: (a) whenever the modification is needed to reflect changed 

state or federal rules, (b) to incorporate changes in the facility operations or 

closure plan, (c) to make other modifications proposed by the permittee and 

approved by the department, (d) whenever the department determines that 

modification is necessary to prevent or reduce actual or potential hazard(s) to the 

public health or safety, or pollution or contamination of the environment or, (e) 

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because of changed or unforeseen circumstances. The filing of a request by 

permittee for a permit modification, or the filing of a notice of anticipated 

noncompliance does not stay any permit condition. Approval from KDHE must 

be obtained prior to any modifications to the landfill design, operational and 

closure plans approved with this permit or any development of new cells not 

detailed in those plans. Any minor modifications approved by KDHE are 

incorporated by reference.

Therefore, until Kansas adopts 40 CFR 257 Subpart D by reference, the state can establish 

standards which are equivalent to or more stringent than the federal regulations through permit 

modifications.

Authority to inspect facilities and obtain records and samples is provided by K.S.A. 65-

3406(a)(10) and K.A.R. 28-29-16. Certain reporting requirements are established in K.A.R. 28-

29-23(f), which also allows KDHE to establish additional reporting requirements in permit 

conditions.

Administrative and judicial enforcement capabilities to ensure compliance, including 

enforcement of orders and permit conditions and imposition of penalties, are provided by K.S.A. 

65-3409 and 65-3419.

Kansas will clarify its authority to enforce CCR disposal standards by adopting 40 CFR 257

Subpart D by reference in 2016.

Status of Coal-Fired Power Plants in Kansas

Kansas currently has seven electric utilities that are managing CCR in one or more landfills 

(LFs) and/or surface impoundments (SIs):

Permit Owner - Facility County LF(s) SI(s)

413 Kansas City Board of Public Utilities – Nearman Creek Wyandotte Yes* Yes

210 Kansas City Board of Public Utilities – Quindaro** Wyandotte Yes No

420 Holcomb Common Facilities, LLC – Holcomb Station Finney Yes No

359 Westar Energy, Inc. – Jeffrey Energy Center Pottawatomie Yes Yes

337 Kansas City Power & Light Company – La Cygne Linn Yes Yes

847 Westar Energy, Inc. – Lawrence Energy Center Douglas Yes Yes

322 Westar Energy, Inc. – Tecumseh Energy Center Shawnee Yes Yes

* This landfill is inactive and it is anticipated that it will not be subject to the requirements of 40 CFR 

257 Subpart D.

** BPU-Quindaro has phased out coal combustion and is now using natural gas to produce electricity.

The facility has no surface impoundments and plans to cease disposal of CCR in the landfill before 

October 19, 2015. It is anticipated, therefore, that this facility will not be subject to the requirements of 

40 CFR 257 Subpart D.

Kansas has solid waste permits in place at all electric utilities in the state that are subject to the 

CCR rule. These permits primarily address the CCR landfills at each facility, but will be 

modified to include CCR surface impoundments, as necessary. Each solid waste permit contains:

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• General conditions

• A design plan

• An engineering report

• An operating plan

• A groundwater monitoring plan

• A sampling and analysis plan

• A closure plan

• A post-closure plan

• Evidence of financial assurance

Priority Facilities

Kansas has no priority facilities. No facilities have been identified as posing an exceptional risk 

to public health or the environment and all should be in compliance with 40 CFR Subpart D 

regulations by the relevant deadlines.

Compliance Schedules

Kansas does not anticipate that any facility will be classified as an “open dump” requiring a 

compliance schedule. However, if a facility requests an extension to any of the compliance dates 

in the CCR rule, Kansas will evaluate the request in accordance with federal guidelines including 

consideration of the following:

• Whether other disposal units can be used;

• Whether the facility has made a good faith effort to meet compliance deadlines;

• Whether there are factors beyond the facility’s control that have made it unable to meet the 

compliance deadlines;

• Documentation from the facility supporting their claims and/or the results of an independent 

investigation;

• The technical complexity of the requirements, the activities that remain to be completed, the 

reasons for the lack of compliance, and other site-specific factors such as geology, 

geography, weather, and engineering considerations.

Any approved compliance schedule would identify the specific activities that remain to be 

completed, along with clear and enforceable deadlines for each, and follow the public 

participation requirements of 40 CFR 256.64.

Short-Term Implementation of CCR Rule through Permits

The six coal-fired electric utilities in Kansas that will be subject to the 40 CFR 257 Subpart D 

regulations will modify their solid waste permits to address the new CCR rule. In general the 

modifications will address the following items, which have initial Subpart D deadlines in 2015 

and 2016:

• Documentation of whether existing CCR SIs are lined or unlined per 40 CFR 257.71

• Documentation of construction history, initial hazard potential classification assessment, 

initial structural stability assessment, and initial safety factor assessment for all existing SIs 

per 40 CFR 257.73

• Installation of a permanent identification marker at each SI per 40 CFR 257.73

• Preparation/update of the fugitive dust control plan per 40 CFR 257.80

• Preparation/update of a run-on/run-off control system plan for all LFs per 40 CFR 257.81

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• Preparation/update of an inflow design flood control system plan for all SIs per 40 CFR 

257.82

• Monthly monitoring of CCR SI instrumentation per 40 CFR 257.83

• Weekly and annual inspections of CCR units per 40 CFR 257.83 and 257.84

• Preparation/update of the closure plan for each CCR unit per 40 CFR 257.102

• Preparation/update of the post-closure care plan per 40 CFR 257.104

• Recordkeeping per 40 CFR 257.105

• Notifications to KDHE per 40 CFR 257.106

• Creation of a CCR websiteweb site per 40 CFR 257.107

In addition, these facilities will:

• Update the “Plat” or “Certificate of Survey” to delineate and label the facility boundary and 

the limits of all existing and proposed CCR units within the facility boundary.

• Identify all the “uniquely associated wastes” listed in 40 CFR 261.4(b)(4), provide the 

quantities that are generated by the facility, and describe how and at what location these 

wastes are managed.

• Define the current groundwater monitoring system and propose a system that meets the 

requirements of 40 CFR 257.91.

• Update the Sampling and Analysis Plan to meet the requirements of 40 CFR 257.93 and 

257.94. 

Facility permits will continue to be updated as necessary to ensure compliance with requirements 

of the CCR rule that have deadlines after 2016.

Applicable Kansas Statutes (K.S.A.) and Regulations (K.A.R.)

Kansas already has regulations in place that apply to CCR landfills and surface impoundments.

(Existing requirements that are more stringent or broader in scope than 40 CFR 257 Subpart D 

are indicated with an asterisk.) These include the following:

KDHE Bureau of Waste Management (BWM)

The following can be found in Appendix A:

• K.S.A. 65-3407, which contains permitting requirements including: background 

investigations of permit applicants*; permit fees*; plans and data; permit conditions*; 

financial assurance*; liability insurance*; requirements for transferring permits; location 

restriction (would only apply to a new permit for an off-site CCR landfill)*; zoning 

certification*; and proof of land ownership*;

• K.A.R. 28-29-6, which requires permits for solid waste disposal areas and processing 

facilities*;

• K.A.R. 28-29-6a and BWM Policies 98-05 and 04-02, which require public participation for 

new permits and major modifications to permits*;

• K.A.R. 28-29-7 through 28-29-10, which address conditions, modification, suspension, 

denial, and revocation of permits*;

• K.A.R. 28-29-12, which requires permitted facilities to have a closure plan and, where wastes 

remain on-site, to have a post-closure care plan and conduct post-closure care of the site for 

at least 30 years;

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• K.A.R. 28-29-16, which gives KDHE the authority to conduct inspections;

• K.A.R. 28-29-19, which gives KDHE the authority to require environmental monitoring;

• K.A.R. 28-29-20, which gives KDHE the authority to require a restrictive covenant and/or 

easement*;

• K.A.R. 28-29-20a, which requires monitoring analyses to be conducted by a KDHE-certified 

laboratory*;

• K.A.R. 28-29-23, which very generally addresses: methods of disposal and processing, 

planning and design, location restrictions, access roads*, recordkeeping and reports*, air 

quality, facility communications*, fire protection*, access control*, signage*, safety 

program*, disease vector control*, odor and particulate control, gas control, water pollution, 

maps, disposal of hazardous waste, and adoption of 40 CFR 257.3-5 and 257.3-6;

• K.A.R. 28-29-25(b), which requires plans and specifications for solid waste disposal areas 

and processing facilities not otherwise provided for in the solid waste regulations;

• K.A.R. 28-29-84 and KDHE Division of Environment Policy “Permit Renewal Fees for 

Generator Owned/Operated Industrial Waste Landfills,” which set permit fees*;

• BWM Policy 02-02, which requires a 5-foot separation from groundwater at all new solid 

waste disposal facilities;

• BWM Policy 05-01, which requires applicants for new solid waste landfills and significant 

modifications of an existing solid waste landfill to notify the following agencies*: Kansas 

Biological Survey; Kansas Corporation Commission; KDA-Division of Water 

Resources; Kansas Department of Wildlife, Parks and Tourism; Kansas Geological Survey; 

KDA-State Conservation Commission; Kansas State Historical Society; Kansas Water 

Office; U.S. Army Corps of Engineers; and U.S. Fish and Wildlife Service; and

• BWM Policy 2014-P1, which addresses post-closure permit renewal and financial 

assurance.*

KDHE Bureau of Water (BOW)

• K.A.R. 28-16-160 et seq., which regulate industrial wastewater lagoons if not permitted as a 

solid waste processing facility or solid waste landfill [K.A.R. 28-16-160(ii)]. Because these 

regulations will not apply to CCR units that are permitted by BWM, they are not considered 

more stringent or broader in scope than the CCR regulations, and are not included in the 

Appendices.

KDA - Division of Water Resources (DWR)

The following can be found in Appendix B:

• K.S.A. 82a-301 et seq. and implementing regulations at K.A.R. 5-40-1 et seq., which regulate 

dams.

Compliance Assessments and Enforcement Strategy

KDHE believes that existing state laws, regulations, and landfill permit conditions already 

authorize KDHE to enforce the standards set forth in the April 17, 2015 CCR rule. Pending the 

adoption of the specific CCR regulations, KDHE will ensure that facility permits are modified as 

necessary along with facility operating plans and other permit documents to fully conform to the 

CCR requirements. The existing solid waste permits for CCR disposal contain general permit 

conditions that authorize KDHE to modify the permit whenever necessary to conform to new or 

revised state or federal laws and regulations. Those permits and all associated design and 

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operating plans are enforceable documents under Kansas state law [K.S.A. 65-3409(a)(3)].

Compliance with the updated permit conditions and associated documents will be assessed by 

KDHE inspectors and permitting staff. These facilities are inspected by KDHE district staff at 

least once each year.

Since current conditions at coal combustion facilities differ, updates needed to facility design, 

operating, and closure plans will also differ. At a minimum, KDHE will ensure that permits are 

updated to address all CCR-regulated units and that facilities complete modifications to all 

permit documents in accordance with all new federal deadlines. With these changes to permits 

and other permit documents, KDHE will have clear authority to enforce the new CCR rule

whenever operations are assessed through compliance inspections or when permits are annually 

renewed. KDHE’s enforcement authority does not require the adoption of the new regulations 

because all requirements will be enforced through permits. Nevertheless, for purposes of clarity 

and consistency, KDHE will move forward to adopt the federal CCR regulations by reference.

KDHE’s short-term approach to assess compliance and carry out enforcement as necessary will 

depend heavily upon the revised permit documents and conditions; however, it should be 

emphasized that Kansas’ existing laws and regulations address many of the requirements in the 

CCR rule, though in a general way. These laws and regulations provide additional basis and 

authority to require permit modifications before the adoption of the CCR regulations.

Because the initial regulatory deadlines arrive in October 2015, six months after the CCR rule 

was published in the Federal Register, it is possible that some permit documents will not be 

modified and approved by KDHE to address the new rule before that date. In those cases, the 

rule will still be in effect because the regulations are self-implementing, but KDHE’s 

enforcement authority could lag behind the regulatory deadlines for a brief period of time. Since 

the CCR rule will be in effect regardless of whether the facility permits and other documents 

have been revised, KDHE expects facilities to move forward with plan modifications in an 

expedited manner.

Long-Term Plan to Adopt CCR Regulations

As discussed in Chapter 1, KDHE will be adopting 40 CFR Subpart D by reference. Certain 

modifications and substitution of termsKansas will be necessary to makefollow EPA guidelines 

for the adoption of regulations applicable to Kansas. However,by reference and will consult with 

EPA while drafting the regulations to ensure that modifications are consistent with the federal 

criteria. The regulations will not be modified to make them any more or less stringent than the 

Federal regulations and existing state requirements.

After the proposed regulations are drafted by KDHE, they go through multiple reviews and a 

two-month public comment period; the regulation adoption process is described in more detail in 

a subsequent section entitled “Public Participation.” The adoption process takes a minimum of 

six months after the proposed regulations have been approved by the Secretary of KDHE. The 

Bureau of Waste Management plans to have proposed regulations approved by the Secretary by 

the end of 2015 and in effect sometime in 2016.

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Coordination with Other Environmental Programs

Most of the requirements of 40 CFR Subpart D will be regulated by BWM, however, certain 

requirements will be regulated under or in coordination with other State programs.

Title V Air Quality permits issued by the KDHE Bureau of Air (BOA) contain dust control 

measures at coal-fired power plants. The fugitive dust control requirements of 40 CFR 257.80 

will be addressed in the BWM solid waste permit in coordination with BOA.

The requirements of 40 CFR 257.82(b), concerning the outflow of surface impoundments, will 

be regulated by BOW under NPDES permits. BOW will also issue NPDES construction 

stormwater permits for any construction sites of one acre or more.

DWR regulates the construction, operation, and maintenance of dams that: 1) have a height of 25 

feet or more; or 2) have a height of six feet or more and a storage volume of 50 acre-feet or 

more. Dams in the higher DWR hazard classes are inspected by the State every three years or 

every five years. Some CCR facilities have dams that are on the DWR inspection schedule.

These DWR inspections will not replace the annual inspections required under 40 CFR 

257.83(b), however information from the annual inspections will be shared with the DWR.

Siting of new facilities will be approved in coordination with other agencies, as described in 

Chapter 2.

Public Participation

Permits

New CCR permits and significant modifications of CCR permits for solid waste disposal and 

processing facilities are subject to the public participation process. K.A.R. 28-29-6a sets forth the 

public notice and hearing requirements for municipal solid waste landfill permits, and Bureau of 

Waste Management policy 98-05 extends this requirement to other solid waste facilities, 

including industrial landfills and solid waste processing facilities.

For all new permits and significant modifications of permits, public meetings are held in 

accordance with BWM Policy 04-02, after which a public notice of the permit is posted in the 

Kansas Register. There is a 30-day public comment period and, if there is sufficient public 

interest, a public hearing. A response to comments is made available to the public when the final 

permit decision is issued. Two examples of significant modifications are: 1) the addition of a 

new CCR management unit; and 2) the lateral expansion of an existing unit into a previously 

unpermitted area.

There is no public participation process for the annual permit renewals, because there is not a 

significant degree of public interest. The annual permit renewal is an administrative process, 

only requiring submission of the following:

• The renewal fee, if applicable;

• Proof of liability insurance;

• Current closure and post-closure care cost estimates; and 

• Proof of financial assurance for closure and post-closure care.

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CCR permits that are modified to incorporate all existing CCR units (such as surface 

impoundments and CCR piles), rather than add new disposal units or surface impoundments, will 

be subject to a modified public participation process. Full public disclosure of how all CCR will 

be managed at the facility will be accomplished through a public notice and public comments 

will be accepted, however there will be no public meetings or public hearing. This modified 

public participation approach is justified because these units were already in operation under the 

oversight of the KDHE Bureau of Water; the only change is the permit and regulations under 

which these units will be regulated.

Regulations

Stakeholder input is routinely sought in the development of new and amended regulations. The 

Bureau of Waste Management has already held stakeholder meetings to discuss implementation 

of the CCR rule in Kansas.

In accordance with the Kansas Rules and Regulations Filing Act, K.S.A. 77-415 through 77-438

which can be found in Appendix C, the State regulatory development process includes: 

• Preparation of an Economic and Environmental Impact Statement;

• Consultation with the League of Kansas Municipalities, the Kansas Association of Counties, 

and the Kansas Association of School Boards, as appropriate;

• Approval by the Secretary of Administration;

• Approval by the Attorney General;

• Publication of a public hearing notice, which includes a summary of the proposed

regulations, in the Kansas Register. The hearing notice, proposed regulations, and regulatory 

impact statement are posted on the KDHE web site;

• Submission of the public hearing notice, proposed regulations, and Economic and 

Environmental Impact Statement to the Citizens Regulatory Review Board;

• A public comment period of at least 60 days;

• Review and comment by the Joint Committee on Administrative Rules and Regulations;

• A public hearing;

• Revisions to regulations if required;

• Preparation and distribution of a responsiveness summary. The responsiveness summary 

contains all comments received during the public comment period and hearing as well as 

KDHE’s response to comments. It is made available on the KDHE web site, and sent to 

individuals who submit comments or request a copy;

• Adoption by the Secretary;

• Publication of the adopted regulations in the Kansas Register.

The process, from the time the regulations are submitted to the Secretary of Administration to 

publication in the Kansas Register takes a minimum of six months; the process can take 

significantly longer depending on the time needed for the review by the Secretary of 

Administration and the Attorney General.

DuringIn addition to the required notifications listed above, the KDHE Bureau of Waste 

Management informs the public comment period, the public hearing notice, proposed and key 

stakeholders of regulations, and Economic that are being drafted, regulations proposed for 

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adoption, and Environmental Impact Statement are made available to all interested 

partiesregulations that have been adopted, though one or more of the following, as appropriate:

• The KDHE Division of Environment Regulatory Agenda, which is posted on the KDHE web 

site at www.kdheks.gov/befs. ;

• The KDHE Bureau of Waste Management newsletter;

• Letters and emails to stakeholders; and

• Stakeholder meetings.

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