KDHE Response to EPA Comments on Draft Part 256 CCR Plan

8/24/2015

Section 256.02(b)&(c)

EPA Comment: 

(b): EPA suggests that KS provide a link to their 2010 state-wide plan, which they use as their 

actual planning tool. KS’ comprehensive 2010 plan could be used to demonstrate compliance 

with this requirement-i.e., the state’s priorities and timing of actions. 

(c): EPA suggests that KS provide a link to their 2010 state-wide plan, which they use as their 

actual planning tool. KS’ comprehensive 2010 plan can be used to demonstrate specific 

activities, schedules and milestones.

KDHE Response: 

A link to the 2010 plan will be provided in the text on page 2 as follows:

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/.

Section 256.02(d)

EPA Comment: 

EPA suggests that KS include a statement indicating that CCR units fall under the overall state 

solid waste planning cycles described under NON-CCR above and therefore, would be addressed 

in a 5 year timeframe. 

KDHE Response: 

The text on page 2 will be modified to read as follows:

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 to determine the need for revision and re-adoption.

Section 256.03(d)

EPA Comment: 

EPA suggests that KS add a short description of the procedures they would follow to revise the 

plan (or provide reference if these procedures are in the appendix). 

KDHE Response: 

The following text will be added to page 2: 

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.

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Section 256.21(a)

EPA Comment: 

EPA suggests that KS indicate more specifically what terms will be modified. Definition of 

terms in the federal rule (e.g. for beneficial use) are critical for determining applicability of the 

rule. Final KS CCR rules must be consistent with and as stringent as the federal criteria. EPA 

suggests establishing an approach for working with EPA to ensure any changes are consistent 

with the federal criteria. 

KDHE Response: 

The modifications that are necessary for adoption will be non-substantive, and similar to those 

made in our adoption of the federal hazardous waste regulations; the 2013 authorization of our 

hazardous waste regulations found these modifications did not make Kansas regulations less 

stringent than the federal regulations. Unless EPA provides guidance specific to adoption of the 

CCR regulations, Kansas will follow guidelines provided in the EPA document “Guidelines for 

State Adoption of Federal RCRA Regulations by Reference.” 

For example, page 9 of the guidance states:

States should substitute their own statutes for the Federal terms “Resource Conservation 

and Recovery Act”, “RCRA”, “Subtitle C of RCRA”, “RCRA Subtitle C”, or “Subtitle 

C”, when referring either to an operating permit or to the Federal hazardous waste 

program as a whole (i.e., not a specific provision of RCRA)...

So where 40 CFR 257.98(d) states: “All CCR that are managed pursuant to a remedy required 

under § 257.97, or an interim measure required under paragraph (a)(3) of this section, shall be 

managed in a manner that complies with all applicable RCRA requirements,” Kansas will 

replace “RCRA requirements” with “Kansas solid and hazardous waste program requirements.”

Also, the state cannot adopt explanatory or non-regulatory language, e.g. the purpose statement 

in 40 CFR 257.50(a). Kansas will not adopt 40 CFR 257.51, because this will not be the 

effective date of our regulation.

Kansas will work with EPA while drafting the regulations to ensure that modifications do not 

make the State regulations less stringent than the federal regulations.

The text on page 15 (previously page 13) will be modified to read as follows: 

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

Kansas will follow EPA guidelines for the adoption of regulations 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.

Section 256.21(a)-(d)

EPA Comment: 

EPA suggests that KS also address if/when the CCR unit permits will be modified to incorporate 

provisions with later compliance dates, since the plan must cover a 5 year period. 

Page 2 of 7
KDHE Response: 

The following text will be added to page 13 (previously page 11): 

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

requirements of the CCR rule that have deadlines after 2016.

EPA Comment: 

On page 12, the first statement under Compliance Assessments and Enforcement strategy should 

be clarified to indicate that not only landfill permit conditions, but also solid waste processing 

facility permit conditions (i.e., surface impoundments) authorize KDHE to enforce the standards 

in the federal rule. 

KDHE Response: 

The term “landfill permit conditions” (now on page 14) will be replaced with “permit 

conditions” because these permits will encompass both disposal areas and surface 

impoundments.

Section 256.26

EPA Comment: 

Although KS is not expecting any of their current CCR landfills and Surface Impoundments to 

be out of compliance with the federal criteria, EPA suggests they address the approach they will 

follow if they are requested by a utility to extend any of the compliance dates in the federal rule 

within the first 5 years after promulgation. With an approved plan, KS will be able to extend 

dates, but must consider the following:

• Whether other disposal units can be used

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

• 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 approval of a compliance schedule would need to identify the specific activities that remain 

to be completed, along with clear and enforceable deadlines for each. See p 21,432-21,433 of the 

rule for further guidance.

KDHE Response: 

The following section will be added to page 12 (previously page 10) after the section on “Priority 

Facilities.”

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 

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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.

Subpart F

EPA Comment:

Pages 7 and 13 provide information addressing coordination with other environmental programs 

and examples are provided. Page A-7, 65-3406, requires cooperation with federal state, 

interstate, and local governments. Administrative code 28-29-23 addresses requirements for 

disposal and processing units to comply with other air and water requirements. If available, 

EPA suggest KS add information on any general provision that may be in statute or code that 

requires compliance with all federal rules.

KDHE Response: 

There is no statute or regulation that requires compliance with all federal rules.

Section 256.60

EPA Comment: 

To more fully address the requirements of this provision, EPA suggests KS include a link to their 

comprehensive state solid waste website, which is a depository for relevant information.

KDHE Response: 

The following text will be added to page 7 (previously page 6): 

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/.

EPA Comment: 

EPA also suggests that KS describe how their newsletters or other relevant information is 

distributed, in order to clarify the maintenance of a stakeholder list.

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KDHE Response: 

The following text will be added to page 6 (previously page 5): 

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

Waste Management newsletter or other means;

The following text will be added to page 9 (previously page 7): 

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.

EPA Comment: 

EPA suggests Kansas provide some information on how they document public comments and 

their response to comments.

KDHE Response: 

The text on page 7 (previously page 6) will be modified to read as follows: 

• Responsiveness summary prepared, 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;

EPA Comment: 

Finally, some information regarding the use of news media should be provided.

KDHE Response: 

The following text will be added to page 7: 

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

announce the adoption of plans.

Section 256.62(a)

EPA Comment: 

EPA suggests KS provide information on how they document public comment on regulations 

and their responses to those comments. 

KDHE Response: 

The text on page 17 (previously page 15) will be modified to read as follows: 

• 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;

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Section 256.62(b)

EPA Comment: 

EPA recommends KS provide additional information’s as to how they notify the public and key 

stakeholders of new regulations beyond the KS Register publication.

KDHE Response: 

The text on page 17 (previously page 14) will be modified to read as follows: 

• 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;

The following text will be deleted from page 17 (previously page 15):

During the public comment period, the public hearing notice, proposed regulations, and 

Economic and Environmental Impact Statement are made available to all interested 

parties on the KDHE web site.

The following text will be added to page 17 and 18 (previously page 15):

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

Management informs the public and key stakeholders of regulations that are being 

drafted, regulations proposed for adoption, and regulations 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.

Section 256.63

EPA Comment: 

EPA suggests KS indicate if the same process is used for permit renewals, and if not, indicate 

what public participation process is used for renewals.

KDHE Response: 

The following text will be added to page 16 (previously page 14): 

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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Section 256.64

EPA Comment: 

EPA suggests that KS reference any public notification that occurs as part of their compliance 

and enforcement procedures for the purpose of this provision.

KDHE Response: 

The following text will be added to page 9 (previously page 7): 

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.

The new section on Compliance Schedules that has been added to page 12 will include 

the following language:

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

Additional Changes

The following language was added to section 3 on page 6 (previously page 5):

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.

Based on EPA’s letter dated August 6, 2015, the text on page 7, (previously page 5) will 

be modified to read as follows:

• Public comments received for at least 30 days following posting of the notice on the 

web site and publication in the Kansas Register;

• Public hearing held at least 30 days after posting the notice on the web site and 

publication in the Kansas Register. 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;

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