### 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 20 10 plan will be provided in the text o n 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 desc ription 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 pa ge 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

.

Page 1 of 7Section 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 fe deral 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 fede ral hazardous waste regulations; the 2013 authorization of our hazardous waste regulations found these modifications did not make Kansas regulati ons less stringent than the federal regulat ions. 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, p age 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 p aragraph (a)(3) of this section, shall be managed in a manner that complies with all applicable RCRA re quirements, ” Kansas will replace “RCRA requirements ” with “Kansas solid and hazardous waste program requirements. ”

Also, the state cannot adopt explanat ory 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 regulation s 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.

Kans as 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

an y 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 7KDHE Response: The following text will be added to page 1 3 ( previously page 11) :

Facility permits will continue to be updated a s 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 pe rmit conditio ns” (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 facilit y’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 c ompleted, 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

Page 3 of 7the 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, al ong 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 r equirements 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 Res ponse: 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 webs ite, 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.

Page 4 of 7KDHE 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 identif ied 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 whe n 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:

T he text o n 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 durin g 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 ;

Page 5 of 7Section 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 beyo nd 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 a nd 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 followin g 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 i s 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.

Page 6 of 7Section 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 gove rnment 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 Compl iance 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.

B ased 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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