# Title 33.1 — Department of Environmental Quality

## Article 33.1-20 — Solid Waste Management and Land Protection

## Chapter 33.1-20-08.1 — Surface Impoundment Provisions

### § 33.1-20-08.1-01. Performance and design criteria.

In addition to the requirements of section 33.1-20-04.1-09, the owner or operator of a surface
impoundment shall comply with the following:
1. Applicability.
a. The design, construction, and operating standards of this section are applicable to
surface impoundments that store or treat solid waste, sludges containing free liquids, free
liquids containing high concentrations of dissolved solids, or liquids derived from
processing or handling solid waste.
b. The standards of this section are not applicable to the following units:
(1) Surface impoundments which treat wastewater, the discharge of which is subject to
federal, state, or local water pollution discharge permits;
(2) Surface impoundments which handle agricultural waste generated by farming
operations;
(3) Lime sludge settling basins;
(4) Basins used to collect and store storm water runoff;
(5) Oil and gas exploration and production waste regulated under North Dakota Century
Code section 38-08-04; and
(6) CCR surface impoundments subject to chapter 33.1-20-08.
2. The owner or operator shall design, construct, and operate each surface impoundment so as
to:
a. Comply with the surface water and ground water protection standards of chapter
33.1-20-13;
b. Require new units to have a compacted soil liner of a minimum four feet [1.22 meters] of
1 x 10-7 centimeters per second or lesser hydraulic conductivity or any combination of soil
liner thickness, underlying soil thickness and hydraulic conductivity, or a flexible
membrane liner which would control the migration of waste or waste constituents during
the active life of the surface impoundment and, for surface impoundments closed with
solid waste in place, during the postclosure period;
c. Have dikes designed to maintain their structural integrity under conditions of a leaking
liner and capable of withstanding erosion; and
d. Have the freeboard equal to or greater than two feet [61.0 centimeters] to avoid
overtopping from wave action or precipitation.
3. Monitoring and inspection.

a. While a surface impoundment is in operation, it must be inspected by the owner or
operator monthly and after storms to detect evidence of any of the following:
(1) Deterioration, malfunctions, or improper operation of control systems;
(2) Sudden drops in the level of the impoundment's contents; and
(3) Severe erosion, seepage, or other signs of deterioration in dikes or other
containment devices.
b. Prior to placing a surface impoundment into operation or prior to renewed operation after
six months or more during which the impoundment was not in service, a qualified
professional engineer must certify that the impoundment's dike and liner have structural
integrity.
4. Emergency repairs and contingency plans.
a. When a malfunction occurs in the waste containment system which can cause a release
to land or water, a surface impoundment must be removed from service and the owner or
operator shall take the following actions:
(1) Immediately shut down the flow of additional waste into the impoundment;
(2) Immediately stop the leak and contain the waste which has been released;
(3) Take steps to prevent catastrophic failure;
(4) If a leak cannot be stopped, empty the impoundment;
(5) Clean up all released waste and any contaminated materials; and
(6) Notify the department of the problem within twenty-four hours after detecting the
problem.
b. As part of the contingency plan, the owner or operator shall specify a procedure for
complying with the requirements of subdivision a of this subsection.
c. No surface impoundment that has been removed from service in accordance with the
requirements of this section may be restored to service unless the portion of the
impoundment which was failing is repaired and the following steps are taken:
(1) If the impoundment was removed from service as the result of actual or imminent
dike failure, the owner or operator shall certify the dike's structural integrity; and
(2) If the impoundment was removed from service as the result of a sudden drop in the
liquid level, the owner or operator shall take the following actions:
(a) For any existing portion of the impoundment without a liner, a liner must be
installed; and
(b) For any portion of the impoundment that is lined, the liner must be repaired
and the owner or operator shall certify that the repaired liner meets the design
specification approved in the permit.
d. A surface impoundment, that has been removed from service in accordance with the
requirements of this subsection and that is not repaired within six months, must be
closed in accordance with the provisions of sections 33.1-20-04.1-05 and
33.1-20-04.1-09.

History: Effective January 1, 2019; amended effective July 1, 2020; October 1, 2024.
General Authority: NDCC 23.1-08-03; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 23.1-08-03; S.L. 2017, ch. 199, § 23
### § 33.1-20-08.1-02. Closure and postclosure criteria.

In addition to the requirements of section 33.1-20-04.1-09, at closure, the owner or operator shall
complete the following:
1. Remove all standing liquids, waste and waste residues, the liners and leak detection system,
and any underlying and surrounding contaminated soil. The site then must be reclaimed by
regrading the site, replacing all suitable plant growth material, and properly revegetating the
site; and
2. If all impoundment materials are not removed as provided in subsection 1, the owner or
operator shall treat remaining liquids, residues, and soils by removal of liquids, drying, or other
means and then close the impoundment and provide postclosure as provided for an industrial
waste landfill under section 33.1-20-07.1-02.
History: Effective January 1, 2019; amended effective October 1, 2024.
General Authority: NDCC 23.1-08-03; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 23.1-08-03; S.L. 2017, ch. 199, § 23
